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Fead, J.
August 13, 1928, plaintiffs executed a 10-year oil and gas lease on property held by the entire- ties. It ran to defendant Hunter, but was negotiated by Moyer for tbe benefit of all the defendants. After Mrs. Eadus signed, Eadús and Moyer deposited the lease in a bank in escrow, under an instrument drafted by Moyer but signed by Eadus alone, conditioning delivery of the lease to defendants on their commencing actual drilling within 60 days after a near-by well should produce. The adjoining well produced on September 14th. The condition for delivery was not performed, but about October 23d the lease was withdrawn from escrow by Eadus and Moyer, on written order of Eadus alone, on payment of $100 to him, without consent of Mrs. Eadus, and was given to defendants, who recorded it. This action is to cancel the lease and clear the record.
Plaintiffs claim that when Mrs. Eadus executed the lease, she orally agreed to, and insisted upon, the terms of the escrow. Defendants claim the escrow agreement was drafted at the bank after Mrs. Eadus executed the lease, she never saw it and had no part in it. The court held with defendants on this issue of fact and took the position that, as Eadus and Moyer alone had made the deposit, they could withdraw the lease and complete delivery.
There was no indication of fraud or overreaching on the part of defendants. Accepting the court’s finding of fact, the question is whether Eadus had the legal right to withdraw the lease from escrow and make delivery without his wife’s consent. It seems to be a case of first impression.
It must be kept in mind that the lease covers property held by the entireties, in which the estates of the husband and wife must abide always together and cannot be separately alienated. Zeigen v. Roiser, 200 Mich. 328; Agar v. Streeter, 183 Mich. 600. The deposit of the lease in escrow was binding on both or neither. If, as Mr. Justice Wiest avers, “the escrow agreement made by the husband did not inure to the benefit of the wife,” then she was not bound to its obligations, and, because of the indivisible character of the estate, neither was the husband. The lease could not be half free and half slave of the escrow.
A lease of real estate held by the entireties is not effective until delivery by both the lessors, either personally or by authorized agent. Mrs. Eadus made no personal delivery of any kind to the lessee. When she executed the lease and gave it to her husband, she constituted him her agent to make delivery. DeGraffenreid v. Elliott, 123 Kan. 477 (255 Pac. 971). The effect of the escrow and of final delivery on her must depend upon the extent of the authority of Eadus as her agent. The agency and authority may be implied from circumstances (30 C. J. p. 621, 13 R. C. L. 1167, 1169), and are to be determined from the fact that Mrs. Eadus executed the lease and gave it to her husband without instructions. Undoubtedly this authorized him to make unconditional delivery, but it does not follow that he was not authorized to make a conditional delivery binding on her.
Engaged in household duties or social activities, or otherwise, wives commonly leave to husbands the details and closing of transactions of conveyance. It is a reasonable implication, consistent with ordinary conduct and necessary to the security of conveyances, that when a wife executes an instrument jointly with her husband and intrusts it to him without direction or instruction, she constitutes him her agent to complete the immediate transaction for her as well as himself in such reasonable manner, consistent with the effect and purpose of the convey anee, as his discretion and judgment shall determine. DeGraffenreid v. Elliott, supra; Bull v. Coe, 77 Cal. 54 (18 Pac. 808, 11 Am. St. Rep. 235).
In Bott v. Wright, 62 Tex. Civ. App. 632 (132 S. W. 960), the court said:
“Where, however, as there is evidence here tending to show, the wife surrenders to her husband a deed to her separate property, duly made and acknowledged, for the purpose of delivery, we think authority in the husband is to be implied to make such reasonable stipulations relating to the delivery of the deed to the grantee as shall not be violative of her instructions or in fraud of her rights.”
In Hughes v. Thistlewood, 40 Kan. 232 (19 Pac. 629), involving a homestead, the purchaser drew an individual draft for the purchase price. The deed and draft were placed in escrow to await returns on the draft. The wife did not sign the escrow agreement and claimed the husband had no authority to deliver the deed except for cash. They attempted to revoke the escrow and the action was to compel delivery. The court held the escrow binding on both, and said:
“When she joined her husband in making and acknowledging the conveyance, and placed the same in his hands for delivery, she made him her agent to arrange the details of accepting payment and completing delivery.”
When Eadus deposited the lease in escrow, he did more than “attach a string” of his own to delivery. To the extent of his authority as his wife’s agent, he carried, her consent into the escrow and bound her as well as himself to a new contract. The benefits of the lease to plaintiffs lay in drilling for and discovering oil and gas on their premises. The deposit in escrow to secure prompt drilling was a reasonable condition on delivery, consonant with the purpose of the lease, not in violation of the wife’s instructions nor in fraud of her rights. It was within the scope of the husband’s authority, and the wife could not revoke the escrow during the period of the condition without the consent of all other parties. 21 C. J. p. 870. Thereafter the husband had no authority, without her acquiescence, to change the terms to which she had agreed. Bailey v. Grover, 237 Mich. 548.
There is no presumption of agency of a husband for a wife (Detroit Lumber Co. v. Cleff, 164 Mich. 276); and while his agency and authority may be implied from circumstances, his authority is no more extensive in scope or longer in duration than that of any agent similarly constituted. 13 R. C. L p. 1168.
After the deposit in escrow, Mrs. Eadus conferred on her husband no authority to further manage the transaction for her, nor were there circumstances or a course of dealing from which new authority or a continuance of the original power to make unconditional delivery could be implied. Whatever authority he had to release the escrow is to be implied from her originally intrusting the lease to him without instructions.
It is to be noted that the contract of escrow was not a mere incident in the collection of the purchase price or the arrangement of a detail of the bargain, but amounted to a modification of the lease itself in the important respect of the time to begin drilling. As a corollary to her obligations under the contract, which she could not escape, Mrs. Eadus was entitled to its benefits, of which she could not be deprived without her consent. She could, feel secure that, under the terms of the escrow, the development of her property would be speedy or its control returned to plaintiffs. This security arose out of a binding contract to which she was a party as fully as though she had been a signatory to it. In my opinion, the interpolation of this binding contract, made in pursuance of powers she had given her husband, exhausted his original authority, and he could not release the escrow and make unconditional delivery without further authority conferred, expressly or by implication, after the deposit.
Oil and gas, unsevered, are part of the real estate. 40 C. J. p. 904. Counsel for defendants present no authority to sustain their contention that they are income alienable by the husband alone, under Way v. Root, 174 Mich. 418.
The decree will be reversed, and one entered for plaintiffs canceling the lease and clearing the record, with costs.
Clark, Potter, and North, JJ., concurred with Fead, J. | [
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North, J.
In these combined suits for specific performance of land contracts, the relief sought was denied on the ground that Mr. William H, Brear, who was found to be the real party plaintiff in interest in both suits, was guilty of unconscionable, if not fraudulent, conduct in making these contracts. From a decree dismissing both cases, the plaintiffs have appealed.
Mr. William H. Brear and his wife, together with one Heenan, constituted the Bell Realty Company, a Michigan corporation. There were 100 shares of stock in this corporation. Mrs. Brear held 98 shares, and Mr. Brear and Mr. Heenan, an employee, one share each. The record fully justifies the conclusion of the trial judge that this “was a one-man corporation.” It was simply an instrumentality by and through which Mr. William H. Brear carried on a real estate business. He was the secretary, the treasurer, and the general manager. He testified: “I did practically all the business for them.” It was obviously under his complete control and operated for his benefit. The fact that the transactions here involved were carried on through this corporate entity will not be allowed to interfere with working out the equities of the case.
On the 18th day of March, 1920, this corporation entered into a contract to purchase from the defendant, Esther A. Baumgartner, 15 acres of land located just north of the city limits of Detroit. The contract recited a down payment, provided for subsequent payments by the corporation, and that the vendee should pay taxes and assessments. It also provided that the purchaser was to subdivide the premises, that the vendor would release any lot upon payment of $300, and for,other details. The corporation did subdivide the property, which was thereafter known as the Log Cabin Park subdivision, and attempted to. market the lots. The undertaking proved unsuccessful, and in the course of a few months the vendee was badly in default, both by reason of its failure to make the specified payments to the vendor and also by reason of its failure to pay taxes. After having sold certain of the lots on subcontracts, the Bell Realty Company assigned and transferred all of its interests to one Martha Cornehl, May 16,1922. No further payments being made on the contract, and the taxes continuing to be in default, the vendor instituted foreclosure proceedings on January 22, 1923, making both Martha Cornehl and the Bell Realty Company defendants. The final decree was entered March 1, 1924; and by it all of the rights of the defendants and of the subcontract purchasers were terminated, subject only to right of redemption, which was not exercised. The sale on foreclosure was confirmed May 1, 1924.
While William H. Brear, through the Bell Realty Company, had charge of the sale of the lots in this subdivision, and on the 27th day of March, 1920, a contract of sale was entered into for four lots of this subdivision to John Brear. John Brear is a son of William Brear, and, at the time of making these contracts, was 14 years of age, was living in the home of his parents, and to some extent assisting in the management of the real estate business which his father was conducting, and is said to have received a regular weekly compensation therefor. It is for the specific performance of the contract for the purchase of these lots that the first of these two suits is brought by William H. Brear as next friend for his son John Brear.
Ruth V. Hill was a 16-year old girl working as' a stenographer in the office of the Bell Realty Company. On the 19th day of June, 1920, she also entered into a contract with the Bell Realty Company to purchase three of the lots of this addition. On the 28th day of July, 1922, she assigned to the plaintiff, William H. Brear, her rights as vendee under this contract; and in the second suit the plaintiff seeks specific performance thereof.
As noted above, all the rights of the vendees under subcontracts were subject to the foreclosure decree taken by Mrs. Baumgartner, and were thereby terminated. But plaintiff claims that by her conduct, about to be noted, Mrs. Baumgartner is estopped from asserting that such has been the result as to the particular subcontracts which he and his son now ask to have specifically performed. This estoppel is claimed to arise from the following facts and circumstances:
On February 21, 1923, which was one month after the foreclosure suit was started, Mrs. Baumgartner mailed notice to each of the subcontract purchasers that she had taken over the Log Cabin Park subdivision, that the Bell Realty Company had no further interest therein, and that upon payment in full of purchase contracts Mrs. Baumgartner would furnish abstracts and give deeds to the purchasers. It should be noted, however, that this notice or letter was prepared by the plaintiff, sent out through his office and in accordance with advice he gave to Mrs. Baumgartner. Strangely enough, he now claims that one of these notices was sent to himself; and it is rather interesting to note that he embodied in this letter the following statement by Mrs. Baumgartner: “I having released the Bell Realty Company from all obligations, etc.”
It is also claimed, and it is a fact, that subsequent to the date of the above notice, and on April 4, 1923, the plaintiff herein paid Mrs. Baumgartner as interest $4.77 on the contract which he held and a like amount on the contract outstanding in the name of his son. Mrs. Baumgartner receipted for these amounts on the respective contracts. Again, on July 17, 1923, plaintiff gave Mrs. Baumgartner his check for $55.60 as payment of interest on the contracts in question. However, almost immediately after receiving’ this check, and upon being advised for the first time of her rights and the true facts surrounding this transaction, Mrs. Baumgartner returned the above check to the plaintiff and repaid to him the cash received by her on April 4th. She thereupon informed plaintiff that she would not recognize as valid the contracts here in suit or receive any further payments thereon. More than a year and a half later, and on February 24, 1925, plaintiff tendered the unpaid portion of the purchase price specified in these contracts; but the defendant refused to accept the same, and this bill of specific performance followed.
It is evident from the record that, in sending out the notices to contract purchasers, and in subsequently receiving the payments which plaintiff claims worked an estoppel, the defendant was guided by the plaintiff. From the contents of the notice, the inference may fairly be drawn that the plaintiff then had in mind producing’ circumstances from which an estoppel might be claimed. Plaintiff was an experienced real estate operator, and was possessed of all the details involved in these transactions, and evidently was fully advised as to both his own rights and the rights of the defendant. On the other hand, Mrs. Baumgartner was an elderly lady, of limited education, and practically no business experience. The subcontracts had been withheld from her, and she did not even know who the vendees were. She promptly returned the small payments made by the plaintiff. We think she did nothing which misled plaintiff or worked to his disadvantage in such a way as to constitute ail estoppel.
In addition to the foregoing, equitable relief by way of specific performance should not be granted to the plaintiff unless his course of conduct relative to this transaction has been one that merits the approval of a court of equity. On this phase of the case the record discloses that the lots sold to plaintiff’s son and those sold to Ruth Y. Hill were the most valuable lots in the subdivision. The son’s lots were priced at $200 each, and those of Ruth Y. Hill at $366 each. Something over 20 other lots were sold by plaintiff, and the average price of such lots is in excess of $620. In other words, it appears from this record that in dealing with his son plaintiff sold lots for less than one-third the market value, and, in making the contracts with the office stenographer, which contracts were subsequently assigned to plaintiff, the price was not much in excess of 50 per cent, of the market value. We are in accord with the finding of the trial judge that these contracts were made for the benefit of the plaintiff himself, and that the terms are so inequitable that plaintiff’s prayer for specific performance cannot be looked upon with favor by a court of equity. Specific performance is a remedy of grace, not a matter of right. Mowat v. Walsh, 236 Mich. 391. It should be granted or not, as appears to be just and equitable under the peculiar circumstances of each case. Waller v. Lieberman, 214 Mich. 428.
The decree of the lower court is affirmed, with • costs to the appellee.
Wiest, C. J'., and Butzel, Clark, Potter, Sharpe, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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Butzel, J.
Defendant is an attorney in the city of Grand Rapids. He was married to Rose, the daughter of plaintiffs, for a number of years prior to 1925, when the real estate boom in Florida attracted many investors. Accompanied by his wife and some cousins of plaintiff Stanley, he went to Florida, where they all made a fair-sized profit in two real estate transactions. The defendant, after his return, was ag-ain attracted by the lure of quick profits in Florida land speculations. A number of well-to-do Grand Rapids business men, desiring to join him in his Florida land deals, gave him money for that purpose. Defendant claims that, owing to the unsatisfactory condition of their meat market, plaintiffs asked him to let them participate with him in some of his deals. He claims he tried to dissuade them. Defendant returned to Florida, and during his absence his wife lived with her parents, with whom defendant’s activities were discussed. Shortly after defendant’s return to Florida, $5,000 was placed to his credit in his depositary bank in Grand Rapids by plaintiff Josephine, who was accompanied by Rose, defendant’s wife. The sole question in the case is whether the $5,000 was deposited as a loan to defendant or whether it was plaintiffs’ contribution to a joint venture in a Florida land speculation.
Rose, the wife of defendant, died on April 6, 1927, prior to the beginning of this suit, aiid, therefore, her testimony is not available. Defendant remarried prior to the beginning of this suit. His remarriage caused considerable hitter feeling on the part of the plaintiffs. It seems to have culminated in the bringing of this suit to recover the $5,000 on the ground that it was a loan to defendant. Defendant claims that it was a contribution to a joint venture in the Florida land speculation, and that the money was lost.
It is undisputed that defendant bought a certain parcel of land in Florida. He testified at the trial that he in no way induced plaintiffs to speculate with him, and that the $5,000 was used to obtain for plaintiffs, at their request, an interest in the purchase of a certain parcel of land in Florida; that he purchased the property on a land contract on which he made a down payment of $25,500, and still owed $12,500; that of this amount paid, $5,000 was furnished by plaintiffs, for which they were to have a one-fifth interest; that other Grand Rapids people also furnished part of the money, for which they were to have their fractional interest; and defendant furnished the balance of the money, for which he also was to have his interest. The title was taken in the name of defendant and his wife, Rose, he claiming that his wife’s name was inserted for convenience under the Florida laws, and that he bought the property in a trust capacity for the benefit of himself, plaintiffs, and others. There was no thought of keeping the property. All of the parties were looking, not to ownership of property, but to profits that would be made on a quick turnover. The Florida storms and floods occurred soon after the purchase of the property; the land boom completely collapsed, and defendant testified that he paid an additional $3,500 to be released from his personal obligation on the land contract. The land was disposed of through its surrender to the vendor prior to the beginning of this suit. The question whether the $5,000 was a loan or a contribution to a joint venture is the only question in the case. The jury were so instructed. They found there was no loan but a contribution to a joint venture. They rendered a verdict of no cause of action in favor of defendant.
With the exception of the plaintiffs’ disputed statements that defendant admitted he had borrowed the money and had promised its repayment, there is absolutely no showing that defendant gave any authority to his wife, Rose, to borrow money for him from her parents. Defendant testified that he gave no such authority, and that the money was turned over to him as plaintiffs’ contribution to a joint venture. Plaintiffs both testified that defendant, after his return from Florida, acknowledged that the money was a loan, and "repeatedly promised repayment. Defendant paid the bank $1,300 which plaintiffs claim should be credited on the so-called loan. Defendant testified, however, that he owed plaintiffs’ son, Eugene, this exact amount of money, and that Eugene, in turn, owed his parents this sum, and that his payment to the bank of the debt he owed Eugene was in accordance with the instructions he received.
Plaintiffs’ claims are negatived by the testimony in the case. In a divorce suit brought against his wife, Josephine, prior to the beginning of this case, plaintiff Stanley stated in a sworn affidavit filed in answer to a motion for alimony, that his wife had appropriated the larger part of the money in ques tion in this suit, and had refused to make any accounting of it. This affidavit would indicate that plaintiff Stanley at the time did not consider it a loan, although he must have known the character of the transaction.
Plaintiff Josephine, in her testimony, stated as follows:
“When Mr. Smolenski came back he said that, if we succeed, we would all be rich.
“ Q. And when he said we would all be rich, he meant you and Mr. Miskiewicz?
“A. Well, I expected to get my money back; I expected that I would get a little something he was to share with me; that is what I mean. I didn’t know how much of a share I would have. I expected something.
“Q. And if the deal had been profitable, you would have expected your share of the profit?
“A. Why, I think I ought to have.”
A number of telegrams, letters, and postal cards which had been sent by defendant to his wife were found by plaintiff Josephine, after suit had been begun. Some of them were read at the trial. One of the telegrams introduced by plaintiffs is so significant that it almost conclusively establishes the fact that defendant received the money for the purpose of buying property for plaintiffs and not as a loan. This telegram is'as follows:
“1925 Aug 9 AM 4 10 “Miami Beach Flo
“Mrs. Rose M. Smolenski
“671 Davis Ave NW Grand Rapids Mich
“Feeling fine everybody fine Jessie coming to Grand Rapids made two buys one for folks have folks give you five thousand dollars deposit that in my commercial acct so I can check out on their buy money and market wild love to all.
“John.”
It was in response to this telegram that the $5,000 was deposited.
Plaintiffs’ counsel claim that a large number of errors were made by the trial judge, both in his rulings on the evidence and in his charge. Unless we are satisfied, after the examination of the entire cause, that it shall appear that the errors complained of have resulted in a miscarriage of justice, it becomes our duty to affirm the judgment of the lower court.
(a) The larger number of the errors claimed by plaintiffs’ counsel can be classified in one group. They refer to the question of agency. We do believe that the judge erred in some of his rulings in regard to the question of agency. Too much stress was placed on the trial as to whose agent Rose was. If she were plaintiffs’ agent, as it would appear, defendant would not be bound by what she said to plaintiffs. On the other hand, if she were the agent of defendant and secured the money as a loan, what she said to plaintiffs would be of importance.
When there is a disputed question of agency, if there is any testimony, either direct or inferential, tending to establish it, it becomes a question of fact for the jury to determine. Hunt v. Stromberg Motor Devices Co., 215 Mich. 483. The court charged that there was no direct evidence of an agency between defendant and his wife, though he left the question of ratification for the jury’s consideration.
There is no presumption whatsoever that Rose was the agent of defendant in obtaining the money. A wife is presumed to be the agent of her husband in making contracts for necessities, but for any other purpose, specific authority must be established. Harris v. Smith, 79 Mich. 54 (6 L. R. A. 702). The authority of a husband to act for his wife in making a loan cannot be shown by his declarations alone, but it must be established like any other fact by competent evidence. Three Rivers National Bank v. Gilchrist, 83 Mich. 253. The converse is obviously true. Agency cannot be established by declarations of the agent alone. With the exception of the admissions, ratification, and promises of payment that plaintiffs claim defendant made, there is no evidence which would show that defendant authorized his wife to secure a loan for him. There is nothing in the letters and the telegram herein quoted that would show that Rose had any authority to make a loan. The telegram hereinbefore set forth indicates that the money was to be secured to purchase property for plaintiffs. If Rose, acting for her parents, sent the money as plaintiffs’ contribution to the joint venture, or if, on behalf of her parents, she askgd defendant to invest the money, she would be the agent of her parents. In any event, the burden of proof was upon the plaintiffs to show that Rose was the agent of defendant, and this burden was not sustained or even any direct proofs introduced except the claim of ratification, subsequent admissions, and promises to pay. Defendant strenuously denied any admissions, ratification, or promises of repayment.
The court properly held that the authority of Rose to act as agent for defendant could not be proven by her declarations alone. Plaintiffs attempted to show that the transaction was a loan, and, in order to make out their case, tried to show what they claimed Rose had said to them. The only way that testimony as to what Rose said would become at all admissible would be in the event that it were shown that Rose was defendant’s agent. Plaintiffs sought to prove the agency by Rose’s own dec larations. An agency for a specific purpose is not presumed. It must be established by tracing its source to some word or action of the alleged principal. Fisk v. Liverpool, etc., Ins. Co., 198 Mich. 270. In Barry & Finan Lumber Co. v. Insurance Co., 136 Mich. 42, this court said:
“It has been repeatedly held that an agent’s declarations are not proof of his authority, and that his acts have no significance, unless recognized by the alleged principal in a way to be equivalent to a holding out that the relation of principal and agent exists, and a holding out of the requisite authority.”
The trial judge, after admitting plaintiffs’ testimony as to what Rose said in order to prove the agency, ordered it stricken out, on account of the rule that the declarations of an agent alone do not establish agency. The court erred in charging the jury as follows:
“In this case if Rose Smolenski communicated with the defendant John Smolenski, as he says, and requested him to buy for her folks, then she would be an agent of the plaintiffs in this case and not his agent.”
In so doing, the trial judge did not apply the same rule, hereinabove set forth, against defendant as he did against plaintiffs. Rose’s statements to defendant without some word or action of plaintiffs would not make her plaintiffs’ agent. This was error.
Plaintiffs gave positive testimony that defendant recognized the transaction as a loan which he repeatedly promised to repay. This would amount to a ratification of the agency. The court properly recognized this claim of plaintiffs, and submitted the question of ratification to the jury. Before so doing, however, the court had stricken out the part of plain tiffs’ testimony to the effect that Rose had secured the money as a loan. There being evidence of a ratification of the alleged agency, the jury were entitled to hear all of the other testimony in regard to the alleged agency. It is true that where a ratification is relied on, the proof of the dealings constituting ratification should be given first. In Campbell v. Sherman, 49 Mich. 534, it was held admissible to admit statements of an agent as to whom he was acting for and in what capacity he contracted, even in the absence of any showing of authority on his part, if ratification is subsequently shown. Mally v. Excelsior Wrapper Co., 181 Mich. 568, approving this principle, quoted the following statement from Hirschmann v. Railroad Co., 97 Mich. 384, 397:
“ 'The declarations of an agent are not admissible to prove an agency, but when there is testimony to show ratification, or original authority, or a holding out to the world as having authority, sueh declarations accompanying the act are admissible to show in what capacity he contracted. Campbell v. Sherman, 49 Mich. 534, 536; Haughton v. Maurer, 55 Mich. 323; Bacon v. Johnson, 56 Mich. 182.’ ”
The ease at issue, however, is not a case where it was sought to recover on breach of representations by an agent in a transaction in which the alleged principal had accepted the benefits of the transaction by ratification, but denied the authority of the agent to make the representations or warranties that were sued upon, as in the case of Moynes v. Applebaum, 218 Mich. 198. The testimony of plaintiffs as to Rose’s declarations in order to prove her agency should have been admitted after there was proof of ratification. The jury were entitléd to hear all of the facts, in view of the testimony of the ratification by defendant. Their verdict was against the plaintiffs. Notwithstanding the fact that they were entitled to all of the facts in regard to Rose’s dec larations and statements, and it was error to exclude them under the circumstances, in view of the testimony in regard to the ratification, we do not believe it sufficiently prejudicial as to justify a reversal of the lower court’s decision, and particularly so in view of the fact that the result of the jury’s verdict would tend to establish the fact that there was no ratification by defendant.
Plaintiffs’ counsel claimed other errors, which we do not deem necessary to discuss. Even if all of plaintiffs ’ contentions were correct, the errors would be nonprejudicial. A very careful reading of the record leads us to the conclusion that, had the errors not been made, had the evidence rejected been admitted, and that admitted but objected to been excluded, or the quoted part of the charge been omitted, the jury’s verdict would have been the same. We, therefore, decline to disturb the judgment on account of these errors.
(b) Plaintiffs, on a motion for a new trial, brought up for the first time the claim that, under defendant’s theory, there was a direct purchase by plaintiffs of an interest in land under an oral contract, which was void under the statute of frauds. They claim that the reason they did not raise this point theretofore was that they did not know of the case of King v. Bird, 245 Mich. 93, which had just been decided, and which held that moneys paid out for an interest in real estate, without any writing showing such interest, might be recovered as a loan because the transaction was void under the statute of frauds. King v. Bird did not set forth any new doctrine. The leading case on the subject in this State is Nester v. Sullivan, 147 Mich. 493 (9 L. R. A. [N. S.] 1106). It was there held that a partnership interest to buy and sell land generally falls within the statute of frauds. In Tuttle v. Bristol, 142 Mich. 148, it was held that this was likewise true when hut one transaction is involved and where it may he treated as a joint venture only. However, after the property in which it was sought to acquire an interest by an oral contract has been disposed of, the statute of frauds no longer applies. This question was fully discussed in Stewart v. Young, 247 Mich. 451, 455, from which we quote as follows:
“When real estate in which several persons are interested is conveyed to one or more of them upon a parol agreement that it is to be sold by the grantees and the proceeds divided between the parties in accordance with their respective interests therein, such contract after the sale of the property is valid and enforceable, is not within the statute of frauds, and, if the grantees after sale and receipt of the purchase price refuse to account to any and all persons in interest, they may maintain a bill for an accounting. Carr v. Leavitt, 54 Mich. 540; Edinger v. Heiser, 62 Mich. 598, 612; Davis v. Gerber, 69 Mich. 246; Collar v. Collar, 86 Mich. 507 (13 L. R. A. 621); Petrie v. Torrent, 88 Mich. 43; Lasley v. Delano, 139 Mich. 602; Tuttle v. Bristol, 142 Mich. 148; Mullholland v. Patch, 205 Mich. 490 (18 A. L. R. 468); Bresee v. Robinson, 236 Mich. 633. This is in accordance with the weight of authority. Browne, Statute of Frauds (5th Ed.), § 268, and cases cited; 29 Am. & Eng. Enc. Law (2d Ed.), p. 897; 27 C. J. p. 221.
“ ‘As a general rule a contract relating to the disposition of the proceeds of land, in case of its sale, is not one for an interest in the land and may be enforced, though not in writing, after the land has been sold.’ 25 E. C. L. p. 540.” .
Even had the question of the statute of frauds been timely presented at the trial, the ruling of the trial court would have been adverse to plaintiffs. The entire Florida purchase had been completed, the property had been disposed of, and the joint venture contract between the parties became valid and was not within the statute of frauds.
The decision of the lower court is affirmed, with costs to defendant.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This is an appeal from an amended decree of divorce. The issue involves the custody of a child, Harlan Ray Greenman, born to the parties on January 18, 1926. In the original case the bill was filed by the plaintiff, but the defendant was awarded a decree on the ground of extreme cruelty and given the custody of the child; The amended decree gives it to the plaintiff.
It is the theory of the law in Michigan that a mother should have the care of children of tender age. It is provided by statute, 3 Comp. Laws 1915, § 11484, that in case of the separation of parents, the mother shall have the custody of all children under 12 years of age. So in this case, if the mother is morally fit, she has the first claim to the child. On August 11, 1928, the circuit judge decreed that she was a proper and suitable person to have it in her custody and control. She had no property or means of support, and the decree gave her nothing, though the plaintiff owned a home in South Haven and was earning $45 a week. An allowance of $5 a week was made for the support of the child. This amount was insufficient, so it became necessary for her to find work and at the same time provide a home for the child. Quite naturally, she turned to her parents, Mr. and Mrs. Hedglin, who live in the country near Sturgis, Michigan. She left the child with them when she was away at work. It was cared for by her mother, against whose fitness no complaint is made. The charge is against the home. It is alleged in the petition that:
“Said home is resorted to by a large number of people almost daily (nightly) as plaintiff is informed and believes and therefore charges the truth to be. ’ ’
One witness testified in support of this charge, but the trial court did not find that it was sustained by the evidence. He based his decision on the personal conduct of the defendant, though no charge of that nature was made in the petition. It appears that, before the petition was filed, she sought an inter view with the plaintiff for the purpose of bringing about a reconciliation. The plaintiff testified that on that occasion she admitted to him she had sustained illicit relations with one Mr. Roper. This charge she denied. The court believed the testimony of the plaintiff. It is rather improbable that, while trying to argue the plaintiff into a reconciliation, she should voluntarily tell him of conduct so damaging to her moral character. It further appears that the same charge was made in the plaintiff’s bill for divorce. The court found it was not sustained by the evidence, and awarded her the custody of the child. The record does not show any substantial change for the worse in conditions then existing. With little assistance from the plaintiff, the defendant seems to have done all she could for the child. That it has no home where it could enjoy the love and affection of both parents is due to the misconduct of the plaintiff, if the court was correct in his findings in the original case. At this time the showing made by the plaintiff is not sufficient to justify the amended decree.
This hearing was had on the theory that if the court gave custody to the plaintiff, he would keep the child in the home of his parents at South Haven. Much testimony was introduced to show the excellent conditions in that home. It now appears that after the decree was amended the plaintiff remarried and took the child to his own home. It may be that it has a better home there with the stepmother than it could have with its own mother; but of that we are not advised by any evidence.
The decree is reversed, with costs to the defendant, including an attorney fee of $100.
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Fead, J.
August 17, 1925, plaintiff was injured while working on defendant’s railroad as a section hand. In suit for damages, his declaration contained two counts, both of which charged the elements of a cause of action for negligence and they were identical except that the first count contained an allegation, not in the second, that defendant was subject to the Michigan railroad liability law, 2 Comp. Laws 1915, §§ 5496, 5501; and the second count had additional allegations, not in the first, that it was defendant’s duty not to employ a person under 18 yearsoof age as a section hand-, that plaintiff was under such age and his employment was unlawful and in violation óf 2 Comp. Laws 1915, § 5332 and amendment (Act No. 206, Pub. Acts 1923), prohibiting employment of minors in hazardous occupations.
Defendant pleaded the general issue and gave notice that at the time of the injury plaintiff was employed in interstate commerce, the State statutes did not apply, and the case was governed by the Federal employers’ liability act (45 USCA §§51-59).
Trial was had. After the jury was sworn, plaintiff dismissed the first count in the declaration, proceeded solely upon the theory of a cause of action under the hazardous occupation law, and contended the Federal act was not applicable. The court adopted plaintiff’s theory, and he had verdict of a jury and judgment. Later, this court, in Petranek, v. Railway Co., 240 Mich. 655, held that the State hazardous occupation statute does not apply where the employment is in interstate commerce, as it has been superseded by the superior Federal law. On the basis of this decision, and on motion of defendant, a new trial was granted.
On March 8,1929, defendant moved to dismiss the suit on the grounds that the second count in the declaration did not set up a cause of action, that plaintiff had abandoned the cause of action set up in the first count, had elected his remedy by trying the case on the second count, and is now estopped from pursuing a different remedy. The court denied the motion and permitted plaintiff to amend the second count of his declaration, which he did by alleging that the parties were subject to the Federal employers’ liability law and by striking all reference to the State statute. In other respects the count is unchanged.
Defendant reviews on certiorari, contending, in addition to its claims of election and estoppel as set up in the motion to dismiss, that the second count of the declaration stated a single cause of action, based on illegal employment of a minor, and that the amendment permitted by the court introduced a new cause of action barred by the Federal statute of' limitations.
As the injury occurred while defendant was engaged and plaintiff was employed in interstate commerce, plaintiff had no remedy under the State statutes. His only remedy was under the Federal act. Mistake of remedy is not election of remedy, and plaintiff is not barred, under the doctrine of election, from pursuing his true remedy. Sullivan v. Ross’ Estate, 113 Mich. 311; In re Brofee’s Estate, 206 Mich. 107; 20 C. J. p. 25; Troxell v. Railroad Co., 227 U. S. 434 (33 Sup. Ct. 274).
Nor is he estopped in fact or law by his position taken on the former trial. The record does not show that he claimed or conceded that the second count of his declaration did not set out a cause of action under the Federal act. The point was not raised. In order to work an estoppel, the 'position assumed in the former trial must have been successfully maintained. 21 C. J. p. 1229. The order for new trial turned plaintiff’s success in his position into defeat. Upon a new trial, a case is tried as if it had not been tried before and without prejudice to either ■party. Donahue v. Klassner, 22 Mich. 252; Gott v. Judge of Superior Court, 42 Mich. 625; Shippy v. Village of Au Sable, 85 Mich. 280; 46 C. J. p. 462. When new trial was ordered, the parties started again from their pleadings. If, after eliminating reference to the specific element of a cause of action under the illegal employment statute, the second count still well charged a cause of action, plaintiff had the right to rely upon it, whether it was saved by design or good fortune. So deleted, the declaration charges a cause of action for negligence.
The cause of action for negligence undoubtedly was inconsistent with the charge under the hazardous employment act. The former was based upon the relation of master and servant, and the latter on the theory that the relation did not exist. Circuit Court Bule No. 21, § 7, permits the joining of inconsistent causes of action in a declaration, but requires that they be charged in separate counts. The second count violated this rule. The defect, however, was in form, not in substance. It should have been challenged by motion in the nature of special demurrer, and was waived by pleading the general issue. Douglas v. Marsh, 141 Mich. 209; 31 Cyc. pp. 277, 278, 719.
The second count of the declaration was sufficient to warrant recovery under the Federal employers’ liability act, although it did not allege that defendant was engaged and plaintiff employed in interstate commerce at the time of the injury. These allegations were not necessary, and the amendment permitting them introduced no new cause of action barred by the statute of limitations. It merely amplified the facts to indicate to the court the applicable law. Jorgensen v. Railway Co., 189 Mich. 537; Fernette v. Railroad Co., 175 Mich. 653; New York Central Hudson River R. Co. v. Kinney, 260 U. S. 340 (43 Sup. Ct. 122).
Affirmed, with costs.
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, and North, JJ., concurred. McDonald, J., did not sit. | [
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Wiest, C. J.
The information charged defendant with the possession of moonshine whisky, and also with furnishing such whisky to one Dick Evans, and, upon trial by jury, he was convicted. Defendant reviews by writ of' error, presenting the question of whether the evidence justified the verdict. Defendant offered no proofs, and, at the close of the-testimony of the prosecution, moved the court to direct a verdict of not guilty. The motion was denied and the jury instructed:
“If you believe the testimony of the witnesses, if that convinces you beyond a reasonable doubt in this case, it would be your duty to convict. If it does not, it would be your duty to acquit.”
The motion, denial thereof, and the instruction, present the legal question for our consideration.
Peggy Lenhard testified that, at her home one evening, defendant and several others were present, and some of those present said that they would like to have a drink, and defendant went outside and brought in a glass gallon jug, the contents of which “had very much the appearance of, oh, dark colored tea,” and drinks were given from the jug, and a pint bottle filled and given by defendant to Evans. No witness informed the jury of the nature of the liquor or said that it smelled like whisky or was intoxicating. Evans was a witness, and said he did not know whether the liquor was intoxicating or contained alcohol, that it did not intoxicate him, although he “felt the effects of it a little bit.” The liquor was not produced. The evidence did not show the liquor to have been intoxicating or disclose facts justifying a reasonable inference that it was intoxicating. The evidence creates a suspicion or conjecture of the nature of the liquor, but that is not. enough. No witness informed the jury that the liquor was intoxicating, and the court was in error in giving .the mentioned instruction. The presumption of innocence and the rule of reasonable doubt still prevail, and difficulty experienced by the prosecution in proving a charge lets down no safeguards. We do not pass upon-defendant’s guilt or innocence, but only upon whether the evidence, in point of law, justified the verdict. The question has lately been considered by courts in liquor prosecutions.
In Cox v. Commonwealth, 140 Va. 513 (125 S. E. 139), the truism that “mere suspicion, however grave, is not sufficient to support a verdict of guilty, ’ ’ was applied.
In Parham v. State, 127 Miss. 8 (89 South. 775), Parham furnished a half-gallon fruit jar “full of something” out of his smokehouse, and was paid $10' for it. The person to whom he furnished it testified that “he did not know what this ‘something’ was; that he did not know whether it was whisky or whether it was intoxicating.” The court said:
“There is no testimony in this case upon which a jury could believe beyond a reasonable doubt that the contents of the half-gallon fruit jar was intoxicating liquor. While we might strongly suspect that the object and purpose of the visit of the young gentleman to the defendant was to purchase intoxicating liquor, the testimony is absolutely silent as to the contents of the fruit jar, except that it was white in color. This witness made no examination of it, but merely assumed that it was the ‘something’ they wanted for the musicians. Before the defendant could have been convicted in this case, however, the testimony must have further shown that this ‘something’ was intoxicating liquor, and this the testimony fails to show.”
See, also, State v. St. Clair, 247 S. W. 203 (Springfield Court of Appeals, Missouri).
In Hill v. State, 99 Tex. Cr. 290 (269 S. W. 90), it was held, quoting from the syllabus:
“Where in a prosecution for the sale of intoxicating liquor, the only evidence of an incriminative character was by a witness who testified that she saw her husband purchase something white in a bottle, from the appellant and pay him money for it. That it smelled like whisky, but that she did not know whether it was whisky or not, this evidence is not sufficient to sustain a conviction, and the cause is reversed and remanded.”
See, also, Blue v. State, 21 Okla. Cr. 156 (205 Pac. 774).
In. State v. Weagley, 240 S. W. 822 (Springfield Court of Appeals, Missouri), a witness testified that:
“Weagley, * # * handed him a quart fruit jar containing some kind of red liquid, and, after witness had taken a drink of same, the defendant said, ‘How is that for moonshine?’ Witness said that it tasted more like cayenne pepper to him. Witness testified that he did not know whether it was whisky or not and did not know whether it would intoxicate or not, as he did not drink enough to see.”
The court held:
“There is no evidence in this case to sustain a conviction for the violation of any law in Missouri' with which we are familiar. We will therefore let this opinion take its place in the long procession of cases, commencing with the jurisprudence of Missouri, unanimously holding that there must be some evidence that a crime has been committed to sustain a conviction.”
The conviction is set aside and a new trial ordered. If additional evidence cannot be produced the defendant should be discharged.
Btjtzel, Potter, North, and Fead, JJ., concurred with Wiest, C. J. | [
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Butzel, J.
Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [2-4]), reads as follows:
“An act to define the crime of negligent homicide, when committed by the operation of a vehicle, and to prescribe penalties for said crime.
“The People of the State of Michigan enact:
“Section 1. Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of the crime of negligent homicide and upon conviction shall be sentenced to pay a fine not exceeding one thousand dollars, or to undergo imprisonment in the State prison for a period not exceeding five years, or by both such fine and imprisonment in the discretion .of the court.
‘ ‘ Sec. 2. The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charged to have been committed in the operation of any vehicle, and' in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter such jury may in its discretion render a verdict of guilty of negligent homicide.
■ “Sec. 3. In any prosecution under this act, whether the defendant, was driving at an immoderate rate of speed shall be a question of fact for the jury and shall not depend upon the rate of speed fixed by law for operating such vehicle.
“Approved April 28, 1921.”
The provisions .of this act were considered by this court in the case of People v. Campbell, 237 Mich. 424. It was held that the offense that this statute defines is homicide caused by. more than slight and le.ss than gross negligence.
This act was again under consideration by this court in the case of People v. Maki, 245 Mich. 455. The court held that the information under this law should set out all facts in regard to the offense with such particularity so as to inform the accused of exactly what constituted the negligence. In the Maid Case the validity of the act was also questioned. The decision of the lower court upholding the constitutionality of the act was affirmed, but only by an evenly divided court. The constitutionality of the act is again assailed in the present case, which comes up from the recorder’s court of the city of Detroit on a writ of error.
An information was filed against respondent charging that on July 23, 1928, by operation of his automobile in a careless, reckless, and negligent manner, but not wilfully and wantonly, he caused the death of Caroline Plunkett, etc. The details of the alleged homicide are set forth with full particularity. The information states that respondent was driving at a rate of 35 miles an hour; that he did not have his automobile under control so as to be able to slow down, stop, or turn aside said automobile upon approaching pedestrians and others lawfully upon the highway and the intersecting streets; that he did not give any signal of his approach; that he did not slow down his automobile upon approaching the intersection at which Caroline Plunkett was lawfully driving her automobile and as a result thereof, in a careless, reckless, and negligent manner drove his automobile with such force and violence against the automobile driven by said Caroline Plunkett that he inflicted upon her divers injuries from which she died. The information is complete in every detail. Although it does not charge that respondent was driving at an immoderate rate of speed, considering traffic conditions at the time and place of the offense, it does show that he was negligent within the purview of the statute.
A motion was made to quash the indictment. All objections raised as to the insufficiency of the testimony produced before the examining magistrate having been waived, the sole question raised is the constitutionality of the act.
The objections made to the act are numerous. It was contended on behalf of the respondent:
(1) That the purpose is not sufficiently expressed by the title;
(2) That the act embraces more than one object;
(3) That section 3 confers judicial powers upon the jury and delegates to them the power to sustain or repeal existing statutes governing the operation of automobiles, particularly the motor vehicle laws of the State of Michigan;
(4) That it gives the jury legislative powers;
(5) That it gives to the jury the power to create the offense and then determine whether the defendant is guilty or not; and
(6) That it retains the common-law offense of manslaughter without any notice thereof set forth in the title.
It is further claimed that the act violates the Constitutions of the United States' and the State of Michigan in that it is so indefinite and uncertain as to constitute deprivation of life, liberty, or property without due process; that the act is ex post facto; and that the accused cannot be informed of the accusation against him because the law governing any particular offense can not be declared until the offense described in the act has been committed.
The trial court stated that because of the Maid Case, doubt had arisen as to the constitutionality of the act, and for this reason a very large number of negligent homicide cases were being held for trial pending a further expression of this court. He, therefore, rendered an immediate opinion so that an appeal conld be taken to this court. In a written opinion, he sustained the motion to quash, and held that the act was unconstitutional. He based his ruling on the grounds that, under this apt, drivers of cars never would know whether they are guilty or not until the jury should pass upon their guilt after a fatal accident occurred; that the magistrate to whom the request for a warrant should be presented would not know whether the rate of speed employed by the vehicle that caused the fatal accident was a moderate one or not, and would be obliged to issue the warrant; that it would be mandatory for the trial judge to submit the case to the jury for the reason that the jury alone would have the right to determine whether the rate of speed was moderate or immoderate ; that the accused would not know how to plead; that he would not understand the nature of the offense for which he was charged; that it gives legislative powers to the - jury; that it gives the jury the power to suspend the laws governing the speed at which vehicles may be operated under the laws of the State of Michigan; that the act covers more than one subject, and that the purpose of the act is not fully set forth in the title thereof.
The purpose of the act is sufficiently expressed in the title. The purport of the act is fully covered. There is nothing in the title to which the provisions of the act are not germane, auxiliary, or incidental. The clause in regard to involuntary manslaughter in no way changes the common-law crime of manslaughter. There is no general statutory enactment defining manslaughter. Therefore, there is no statute to repeal or amend. It is not necessary to state in the title of the act that the crime of negligent homicide is included within every crime of manslaughter. The title, which states that it defines the crime of negligent homicide, is sufficient and complete.
The inclusion of the provision in regard to immoderate speed is proper. It in no way affects the speed-limit laws, the violation of which is punishable under the statutes regulating them. While it is permissible to drive within certain limits of speed, the law provides that such speed must always be at a prudent and reasonable rate and not greater than will permit the driver to stop his car within the assured clear distance ahead. The speed-limit law provides for the punishment for the violation of its provisions. It does not provide for the additional criminal or civil liability of one who violates the law and in so doing commits homicide. One may be guilty of murder and also of another crime that he commits while in the act of murder. If a person drives at a rate of speed forbidden by the speed-limit laws, he would be punishable under such laws. If he commits homicide, he may be punishable under the act defining negligent homicide.
The commonly-accepted definition of “immoderate” is: “Not within reasonable limitsIf one drives at a rate of speed that is not reasonable, he is driving, at an immoderate rate of speed and not within reasonable limits. If under those circumstances he kills a person, he is guilty of negligence. The term “immoderate speed” constitutes a form of negligence, and may result in damage to person or property. If it causes death, it is negligent homicide. For this reason, the entire discussion in this opinion in regard to negligence is also applicable to negligent homicide by one driving at an immoderate rate of speed.
The law is further attacked on the ground that a prosecuting officer of this State, when requesting the issuance of a warrant under this act, and the magistrate to whom such request is presented, would he bound to issue a warrant for the arrest of the accused even though there might be an honest belief that no crime had been committed. If a crime has been committed, and there is sufficient evidence to secure a conviction, there is no question as to their plain duty in the premises — to issue a warrant. If the evidence shows that no crime has been committed, or there is not sufficient evidence on which to convict, they should act in the same manner as when other charges are laid before them. This is also true in regard to the further proceedings before the court.
It is charged that all discretionary powers are removed from the trial judge. This is partly true in respect to the method of proving an immoderate rate of speed, if the words “shall be a question of fact for the jury” are not omitted from the last section of the act. In the present case respondent was charged with driving in a reckless, careless, and negligent manner, and causing death thereby. He was not charged with driving at an immoderate rate of speed. Inasmuch, however, as the constitutionality of the act is being questioned, it is proper to discuss all of the provisions of the act. The third section of the act provides that the question of whether the defendant “was driving at an immoderate rate of speed shall be a question of fact for the jury.” The legislature may not divest the courts of their judicial power, and a statute that takes away a power of the court to direct a verdict is unconstitutional. It is an unwarranted interference with the judicial power by the legislature. In a criminal case a judge has the power to direct a verdict. People v. Neumann, 85 Mich. 98; People v. Minney, 155 Mich. 534, 536; People v. Berridge, 212 Mich. 576, 580; People v. Damskey, 180 Mich. 664. The trial judge retains full charge of the trial of a criminal case. Under the new criminal code he has greater powers and duties than theretofore. He may instruct the jury both as to the law and facts. He may make such comments in regard to the facts as he deems proper. A law is unconstitutional that divests the trial judge of the right to apply the law and direct a verdict when there is no dispute over the facts. Bielecki v. United Trucking Co., 247 Mich. 661. However, the inclusion of the words “shall be a question of fact for the jury” does not make the act .or even the section fatally defective, provided the quoted words may be omitted without destroying the purpose and completeness of the act. The objectionable words do not affect the definition or punishment of the crime. These words may be and should be omitted, so that the third section of the act shall read:
“In any prosecution under this act, whether the defendant was driving at an immoderate rate of speed shall not depend upon the rate of speed fixed by law for operating such vehicle.”
The law is stated in 1 Cooley on Constitutional Limitations (8th Ed.), pp. 359-363, as follows:
“It will sometimes be found that an act of the legislature is opposed in some of its provisions to the Constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicted with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the Constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section; for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in. substance. If, when the unconstitutional portion is stricken out, that which remains is completé in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then if. some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.”
This has always been the law of this State. People v. Eberle, 167 Mich. 477. The act with the objectionable words eliminated is complete in itself, capable of being carried out without reference to the words that attempt to take away from the judge his judicial right and obligation. The act is otherwise valid and constitutional. The constitutionality of a law that is complete in itself, without certain provisions that may be omitted, will remain constitutional if such objectionable parts are omitted. In re Wilson, 160 Mich. 42; People v. Eberle, supra; Roberts v. Atlantic Oil Producing Co., 295 Fed. 16 (certiorari denied in 265 U. S. 582 [44 Sup. Ct. 456]); People v. Kenney, 96 N. Y. 294; Berea College v. Kentucky, 211 U. S. 45 (29 Sup. Ct. 33). The case of Gatewood v. North Carolina, 203 U. S. 531 (27 Sup. Ct. 167), upheld a statute forbidding the opening or maintaining of a bucket shop, which contained unconstitutional clauses with reference to a prima facie presumption of guilt. Notwithstanding these clauses, the balance of the act was held to be constitutional. In Brazee v. Michigan, 241 U. S. 340 (36 Sup. Ct. 561, Ann. Cas. 1917 C, 522), the court held that it was not necessary to go into the constitutionality of certain clauses of an act where the act was severable and defendant had been convicted under a part of the act, the constitutionality of which could not be questioned. An act will be upheld which is complete in itself notwithstanding certain clauses that are unconstitutional and should be omitted. Loeb v. Columbia Township Trustees, 179 U. S. 472 (21 Sup. Ct. 174); Butts v. Merchants & Miners Transportation Co., 230 U. S. 126 (33 Sup. Ct. 964).
Some question may arise whether the words “in its discretion” in the second section of the act give the jury the right to disregard the instructions of the judge and thus infringe upon the rights and obligations of the trial judge. We hold that these words have no such meaning, and the jury must follow the instructions of the trial judge.
It is further claimed that a person charged with negligent homicide would not know how to plead, and that a judge would not know whether to accept a plea of guilty or not. This is a captious argument. The accused would know whether he had killed. He should know whether he had been driving at, an immoderate rate of speed or in a careless, reckless, or negligent manner. If he did not know, he would stand mute. He would not be apt to plead guilty without stating the circumstances to the judge, who would tell him how to plead.
The crime of negligent homicide, like that of involuntary manslaughter and the many forms of crime set forth in the Maid Case in the opinion upholding the constitutionality of the law, is determined by the facts in each case, and the rule to be applied to it is not a matter of conjecture but a positive one.
We are not concerned with whether the term “negligent homicide” was adopted as a éuphemism for the more harsh term of “involuntary manslaughter of a lesser degree.” Similar standards of measurement are used to determine the respective crimes. Evidently the fear of being convicted of the-crime of involuntary manslaughter did not act as a deterrent to the large number of drivers who' through negligence less than gross have caused death. There is no doubt but that the legislature was prompted to pass a law to curb reckless, careless, and negligent driving which caused death, in cases where the negligence was less than gross. The reason for the law has unfortunately been too well demonstrated both before and since its enactment. Public records of the Detroit police department show that the annual death rate from automobile accidents in that city has more than doubled during the past ten years. From January 1, 1922, to October 31, 1929, there have been 2,205 such deaths reported to the police department. In 1926 there were 327 such deaths; in 1927 there were 325; in 1928 there were 322; and for the first ten months of 1929, there were 294. A very large number of these deaths were caused by the negligence of automobile drivers. This does not include the very large number of nonfatal injuries which resulted from a similar- cause. The records show that the same driver has killed two persons at different times in or near Detroit. Can it be said that the State is powerless in the premises, because no code of laws or rules can be drafted that will fit a multitude of variant circumstances surrounding each case?
It is claimed that a new and more ductile rule or yardstick is necessary to measure the degree of the crime or negligence in negligent homicide cases. People v. Campbell, 237 Mich. 424, 434. But following the simile, the same rule or yardstick that is used in measuring the amount of negligence that is gross may also be ruled off so as to show what is less than gross. A rule or yardstick may be spaced off both as to feet and inches. While degrees of crime or torts can not be measured with mathematical precision, nevertheless a rule or yardstick that is used to determine a certain quantity may also show whether it is less than such quantity.
The law is well settled that the legislature, in the exercise of its police power in order to preserve the health, morals, and safety, may constitute something to be a crime that theretofore was not criminal. It may impose a criminal responsibility for a tort that theretofore carried with it only civil liability.
“It is within the power of the State to enact laws creating and defining crimes against its sovereignty, regulating the procedure in the trial of those who are charged with committing them, and prescribing the character of the sentence which shall be awarded against those who have been found guilty.” Coffey v. Harlan County, 204 U. S. 659, 662 (27 Sup. Ct. 305).
The law of manslaughter through negligence was established ages ago. It has changed but little since then. The law of manslaughter as it exists today has been adopted from the old English common law. The law of homicide through the negligent driving of a vehicle may be found in Hale’s Pleas of the Crown (first published in 1736). We quote from the first American edition, volume 1, published in 1847, p. 475:
“A. drives his cart carelessly, and it runs over a child in the street, if A. have seen the child, and yet drives on upon him, it is murder; but if he saw not the child, yet it is manslaughter; but if the child had run cross the way, and the cart run over the child before it was possible for the carter to make a stop, it is per infortunium, and accordingly this direction was given by us at Newgate sessions in 1672 and the carter convicted of manslaughter.
“If a man or a boy riding in the street whip his horse to put him into speed, and run over a child and kill him, this is homicide, and not per infortunium, and if he rid so in a press of people with intent to do hurt, and the horse had kild another, it had been murder in the rider.
“But if a man or boy riding in the street, and a by-stander whip the horse, whereby he runs away against the will of the rider, and in his course runs over and kills a child or man, it is chance-medley only, and in that case the jury ought not to find him not guilty generally, but the special matter; but yet, because the coroner’s inquest, which stood untraversed, had found the special matter, the court received the verdict of not guilty upon the indictment by the grand inquest of murder, and the party confessed the indictment by the coroner, and had his pardon of course, and this was said by Lee secondary to be the course at Newgate, 1 Sept. 16 Car. 2. Richard Pretty’s Case.”
In Poster, Crown Law (3d Ed., 1792), p. 263, § 4, 'tit. 2, chap. 1, it was said:
“A person driving a cart or other carriage happeneth to kill. If he saw or had timely notice of the mischief likely to ensue, and yet drove on, it will be murder; for it was wilfully and deliberately done. Here is the heart regardless of social duty, which I have already taken notice of. If he might have seen the danger, but did not look before him, it will be manslaughter for want of due circumspection. But if the accident happeneth in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and the driver will be excused.”
A number of English cases on homicide caused by the negligent driving of vehicles illustrate that under the common law the court considered whether ordinary caution was used; whether the vehicle was being driven at a reasonable rate of speed considering the condition of traffic; whether a driver was using due care, etc. It can be seen from these cases that the same questions that confront us in the present instance were considered by judge or jury in determining whether the crime had been committed.
In Rex v. Walker, 1 C. & P. 320 (1824), the defendant was driving a cart with two horses. There were no reins. The horses were cantering and the defendant was sitting in the front of the cart. The defendant saw the deceased and called twice to him to get out of the way. The fact that the deceased was drunk, however, and the rapid pace of the horses, prevented the deceased from so doing, and he was run over and killed. On an indictment for manslaughter, Garrow, B., laid down in his charge:
“That if a man drive a cart at an unusually rapid pace, whereby a person is killed, though he calls repeatedly to such person to get out of the way; if from the rapidity of the driving, or any other cause, the person cannot get out of the way time enough, but is killed, the driver is in law guilty of manslaughter; and that it is the duty of any man who drives any carriage, to drive it with such care and caution to prevent, as far as in his power, any accident or injury that may occur.”
In Rex v. Timmins, 7 C. & P. 499 (1836), the indict ment for manslaughter charged that the defendant so negligently drove an omnibus that it overturned and killed the deceased who was riding on top. Evidence showed that the defendant was racing with another ’bus. Patteson, J., in summing up, said:
“The question here is, whether you are satisfied that the prisoner was driving in such a negligent manner that by reason of his gross negligence, he had lost command of his horses? And that depends on whether the horses were unruly, or whether you believe that he had been racing with the other omnibus, and had so urged his horses that he could not stop them; because, however he might be endeavoring to stop them afterwards, if he had lost the command of them by his own act, he would be answerable ; for a man is not to say, I will race along a road, and, when I am got past another carriage, I will pull up. If the prisoner did really race, and only when he had got past another omnibus endeavored to pull up, he must be found guilty; but if you believe that he was run away with, without any act of his own, then he is not guilty. The main questions are, were the two omnibuses racing? And was the prisoner driving as fast as he could, in order to get past the other omnibus? And had he urged his horses to so rapid a pace that he could not control them? If you are of that opinion, you ought to convict him; but if his horses ran away of their own accord, without any act of his, he is entitled to an acquittal. ’ ’
In Queen v. Dalloway, 2 Cox, 273 (1847, Oxford Circuit, Crown Court), the prisoner was riding in his wagon standing up with the reins loose on his horse’s back — not in the prisoner’s hands. The deceased, a child of three years, ran in front of the wagon and was killed. The defendant was indicted for manslaughter. Earle, J., in summing up to the jury directed them:
“A party neglecting ordinary caution, and, by reason of that neglect, causing tbe death of another, is guilty of manslaughter; that if the prisoner had reins, and by using the reins could have saved the child, he was guilty of manslaughter; but that if they thought he could not have saved the child by pulling the reins, or otherwise by their assistance, they must acquit him.”
In Reg. v. Murray, 5 Cox, 509 (1852, before the Dublin Commission Court), the defendant was driving his cart over a quay when it struck a nurse who was carrying an infant, so that the infant rolled under the wheels of the vehicle and was instantly killed. The indictment was for manslaughter and the evidence showed that the prisoner was in the driver’s seat at the time and proceeding at a reasonable rate of speed. The defense urged the fact that the nurse paused momentarily and that the defendant expecting her to keep moving was taken unawares; and further, that since the street was full of people who had been witnessing the Lord Mayor’s procession, it was very difficult to .avoid hitting someone. The court said in charging the jury (p. 510):
“As to what has been urged by the counsel for the prisoner as to the crowded state of the streets, rendering if difficult to avoid an accident, I have to tell you that this unusual concourse of persons, instead of offering any extenuation for the prisoner, or diminishing the criminality of his careless driving, if you find it to have been such, would but be a circumstance to add to it, and that it was his duty, as well as of all driving upon such occasions, to take more than ordinary precautions against accidents, and to use more than ordinary diligence for the safety of the public. * * * The question which you have to try here is, I may say in a word, whether the death was caused by the careless and negligent driving of the prisoner, or was the result of an accident which he could not reasonably foresee or provide against.”
The principles of law laid down in this country in regard to manslaughter through gross negligence in the. main follow those of England. There are many authorities. We shall just refer to two of them. The law is well stated in the case of Belk v. People, 125 Ill. 584 (17 N. E. 744). The court said:
“The case made by the evidence fairly presented the question for determination, as to whether the collision was the result of the reckless and wanton failure of the plaintiffs in error, or some one or more of them, to control and manage the team of which they were in charge, or was the result of unavoidable mischance or accident. * * *
“It is insisted by counsel for the defendants, that as there is a failure'to show that they were active in inducing their .horses to. run at the place indicated, no criminal responsibility attaches to the defendants. This we think a misapprehension of the law. There can be but little distinction, except in degree of criminality, between a positive intent to do wrong and' an indifference whether wrong is done or not. It is therefore said: ‘Carelessness is criminal, and within limits supplies the place of the' direct criminal intent’ (1 Bish. Crim; Law [9th Ed.], § 313; Com. v. Rodes, 6 B. Mon. [45 Ky.] 171; Roscoe on Crim. Ev. [5th Amer. Ed.], pp. 710 et seq.). Every person driving upon the. public highway, qr in other places frequented' by others, is bound to exercise reasonable care and caution to prevent injury to others. The. law casts upon him the legal duty of observing such care and caution as is exercised by reasonable and prudent men under like circumstances. As a rule, the care required is to be proportioned to the danger. Hence, driving rapidly in an open.country highway may not be negligence, while the same character of driving in a thronged street or thoroughfare, or where there is known hazard to others, may be negligence in the highest degree. Wharton on Crim. Law [9th Ed.], §§ 353-355.”
Justice Cooley in People v. Roby, 52 Mich. 577, 579 (50 Am. Rep. 270), in referring to criminal manslaughter, said:
“I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence; and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.”
The law of civil negligence also had its origin centuries ago. One may be civilly and criminally responsible for the negligence which causes death, though there may be some factors that would discharge one from liability for civil negligence but would not act as a release from criminal negligence. The method of determining negligence in both instances is the same. There is no code of rules that fits each and every case of civil negligence.
Dean Creen in his article on The Negligence Issue, in 37 Yale Law Journal, 1029, says:
“It would be futile for the law to attempt to deal in detail by way of precise anticipatory rule with each of the infinite number of cases which can be classified as ‘negligence’ cases. The number of such situations in which the quality of conduct can be measured by standards stated in terms of conduct is relatively small. The torrents of pertinent factors incident to any wholesale attempt along this line are beyond classification and statement. The qualities of personality are themselves numerous; their shadings are countless; the conduct of individuals is incalculable at present in its variety; the possible combinations of these are literally infinite, as infinite as space and time. The number of instances of conduct which could be labelled either as negligent or nonnegligent is beyond the limits of any catalog the law can make. So it is not surprising that in the face of infinity the law does exactly what other sciences do in like situations. It adopts a formula; a formula in terms which will permit its problems to be reduced to a graspable size. This formula, like many other formulas, tends quickly to become ritual and it would seem that it is only this ritual which holds the law’s interest. This much it insists upon rigorously, but this is as far as the law’s science goes in this direction. It seems to have no interest in the ‘physical, mental and moral’ qualities and characteristics of personality as such, nor in the qualities and characteristics of the ‘ordinary prudent person.’ And while it is intellectually stimulating to inquire into the intelligence, experience, powers of memory, observation, co-ordination, the reaction time, self-control, courage, skill, ad, infinitum, which the law might require of defendants, such inquiry is rendered utterly without profit for the purposes of determining the negligent conduct of any particular defendant in any particular case. The law does not make any attempt to require any of them in any one or more combinations. A formula in these terms has not been written which can be relied on to fit a single defendant in a single case.”
As stated in this article, no precise anticipatory rules can be laid down that will govern with particularity each and every case of criminal or civil negligence. Negligence can only be defined by general rules. It consists of a want of reasonable care or in the failure of duty which a person of ordinary prudence should exercise under all the existing circumstances, in view of the probable injury. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99; Michigan Central R. Co. v. Coleman, 28 Mich. 440. Negligence has been defined in a general way in Michigan and in other States by so many hundreds of decisions, that the general rules have almost become postulates.
The .very same evidentiary facts required to prove civil liability for negligence may be used to prove criminal liability. It is true that there may be certain defenses as contributory negligence, etc., which would discharge one from civil liability but not from criminal liability. The main constitutional objections made by respondent as to the act under consideration could be made to the rules establishing civil liability on account of negligence. It is just as much a violation of the due process clause of the Constitution to take property as it is to take the liberty of a person. The due process clause refers to civil as well as criminal liability, to the taking of property as well as liberty. If these objections are valid, then the jury exercises as much legislative power to determine civil liability as it does in determining criminal liability. The law governing civil liability for negligence is unquestioned. It has been settled by decisions going back hundreds of years. Just as we can ascertain civil liability by certain rules, so also can we determine criminal liability by similar rules.
An examination of the automobile speed laws of the 48 States discloses that in 10 statutes defining manslaughter include death caused by lack of “due caution and circumspection.” Eleven States include under the crime of manslaughter death caused by ‘ ‘ culpable negligence. ” In 15 States, including some above referred to, manslaughter is defined as “killing a person without malice, etc., while doing an unlawful act,” and it is further provided that driving “at a rate of speed that is not reasonable and proper,” or words to that effect, shall be unlawful. In one State the statute provides that manslaughter shall consist of the killing of a person by “one engaged in perpetration of any crime or misdemeanor not amounting to a felony, ’ ’ instead of referring to an unlawful act. In 47 States of the Union and in the District of Columbia and Hawaii there are statutes which forbid driving “at a rate of speed greater than is reasonable and proper, having regard for the width, traffic, and use of the highway and in a manner so as to endanger property or the limb of any person.” In some of the States the words “careful and prudent” are used. In others, words with a like meaning to those quoted are used.
The Texas code distinguishes “excusable homicide” from “negligent homicide” by stating that in the latter “the want of proper care and caution distinguishes this offense from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances” (Tex. Crim. Stat. 1925, Art. 1233). If the negligent homicide statute of Michigan is unconstitutional because of the objections raised in the case at issue, then similar objections may be raised as to the constitutionality of the speed laws of almost every State. Like objections may be made to the penal laws of all States that make it a felony to cause death through negligence.
The definition of negligence and of its various grades has come down to us through a multitude of decisions, and is neither vague, uncertain, or indefinite. The oné opinion in the Maki Case adverse to the constitutionality of the law contains excerpts from decisions in numerous cases. A reading of these decisions dispels the doubts as to the constitutionality of the statute here under consideration. These decisions held that certain statutes were void on account of indefiniteness. Such indefiniteness does not exist in the Michigan statute, whose constitutionality is being attacked. We have well-established precedents defining civil and criminal negligence. The distinction between the case at issue and those quoted in the Maid Case can be readily seen. We only make brief reference to them. In United States v. Sharp, Pet. C. C. 118 (27 Fed. Cas. p. 1041), the indictment was against several seamen for “making a revolt, endeavoring to make a revolt and for confining the master. ’ ’ The court stated that the word “revolt” was too indefinite; that it was not defined by statute or by any civil law or by any judicial decision to be met with in any reporter or any elementary writer upon law; and that the philologists gave so many and different definitions to the words that no one of them could be adopted, particularly for a crime as serious as the one charged. Obviously, the word “negligence” is not open to this objection. Its meaning is definite and well known.
In Chicago, etc., R. Co. v. Dey, 35 Fed. 866 (1 L. R. A. 744), and Tozer v. U. S., 52 Fed. 917, the. court held statutes to be illegal that provided for a penalty for an excessive railroad rate because the statutes did not in any way give a satisfactory manner in which to find out what such rate should be, and, therefore, the statutes were indefinite. Manifestly, these objections would not be applicable to the question of civil or criminal liability for negligence.
The next case referred to is that of Railroad Com-mission of Indiana v. Railroad Co., 179 Ind. 255 (100 N. E. 852). An Indiana statute provided a penalty for operating a railroad without an approved block system for the control of train movements thereon. At that time there were three block systems in use, and there was no precise way of ascertaining which block system met with approval. The court held that the statute was indefinite. As a matter of fact, this uncertainty was removed by subsequent legislation. The law as it stood created a genuine quandary in which no exercise of sound judgment, forbearance, or caution could aid in the determination of how to observe the law. No such situation arises in determining what is civil or criminal negligence.
The next case referred to is State v. Comeaux, 131 La. 930 (60 South. 620); the statute attacked was one which provided punishment for “indecent assaults.” The court held that the only crimes recognized under the laws of Louisiana were statutory ones and not those under the common law, and that there was no definition of the term “indecent assault.” This reasoning would not apply to the law of negligence in Michigan.
State v. Mann, 2 Or. 238, construed a statute which forbade the use of gambling devices. Defendant was arrested for using “a gambling device,” to wit, playing poker. The court held that the game of poker is specified by name as one of the devices prohibited by the statute; that a device must be tangible, etc. This decision can not in the remotest degree be related to the question of negligence.
In Brown v. State, 137 Wis. 543 (119 N. W. 338), the respondent was accused of failing to observe the State law in regard to registration, but the law, as the court held, was fatally defective in not definitely stating where the registration should take place. The reasoning in this decision can not affect the present case.
United States v. Cohen Grocery Co., 255 U. S. 81 (41 Sup. Ct. 298, 14 A. L. R. 1045), was a case brought under the Lever Act, which made it “unlawful for any person wilfully * # * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.” The court shows that this was impossible,- that so many elements arose in determining “rate or charge” that there was such a hopeless disagreement as to what the price should be, that the law was indefinite. The court called attention to the various judicial interpretations that had been put upon the act and the questions which had been raised by them, such as “market price,” “the time of purchase,” “length of time in stock,” “what would amount to a fair and reasonable profit,” etc., whether an advance in price from the time of purchase, whether a departure in war time from the scale of prices in times of peace, whether a greater price could be asked for goods purchased prior to an advance than for goods subsequently purchased at a greater cost, etc. The act was held to be unconstitutional on account of indefiniteness. We are not confronted with any such conditions in considering • the negligent homicide law.
International Harvester Co. v. Kentucky, 234 U. S. 216 (34 Sup. Ct. 853), passed upon the constitutionality of a statute which prohibited certain combinations in restraint of trade and which forbade the raising or lowering of the price above or below the “real value” of the article. The court of appeals declared that the “real value” was its market value under fair competition and under normal market conditions. The Supreme Court held that this was too indefinite, for such a test would be entirely unworkable. The reasoning in this case can in no way be applicable to the negligent homicide statute. In fact, the court so held when it stated in its opinion:
“We regard this decision as consistent with Nash v. United States, 229 U. S. 373, 377 (33 Sup. Ct. 780), in which it was held that a criminal law is not unconstitutional merely because it throws upon men the risk of rightly estimating a matter of degree — what is an undue restraint of trade. That deals with the actual, not with an imaginary condition other than the facts. It goes no further than to recognize that, as with negligence, between the two extremes of the obviously illegal and the plainly lawful there is a gradual approach and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust. The conditions are as permanent as anything human, and a great body of precedents on the civil side coupled with familiar practice make it comparatively easy for common sense to keep to what is safe.”
The excerpt from the opinion in the case of Commonwealth v. Pentz, 247 Mass. 500 (143 N. E. 322), states the law correctly as to the necessity for definiteness in a criminal statute which provided against the operating of a motor vehicle recklessly or by a driver while under the influence of intoxicating liquor or in a manner so that the lives or safety of the public might be endangered, etc. The court, in upholding the law as not being indefinite, said:
“To endanger the lives and safety of the public by the operation of an automobile on a public way is not an intangible and shadowy act. It has specific relation to possible contact with human beings. The objections to the statute are disposed of by what was said in Nash v. United States, 229 U. S. 373 (33 Sup. Ct. 780), at pages 376, 377: ‘It is said that the crime thus defined by the statute contains in its definition an element of degree as to which estimates may differ, with the result that a man might find himself in prison because his honest judgment did not anticipate that of a jury of less competent men. The kindred proposition that “the criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty,” is cited from the late Mr. Justice Brewer sitting in the circuit court. Tozer v. United States, 52 Fed. 917, 919. * * * The law is full of instances where1 a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. “An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it” by common experience in the circumstances known to the actor.’ ”
In Connally v. Construction Co., 269 U. S. 385 (46 Sup. Ct. 126), the term “current wage” for performing public work in the construction of a bridge was considered in construing the statute compelling the payment of the “current wage” in the locality. The court held that the terms were not certain, that the value of services varied with the work performed, efficiency of the workmen, etc. The court stated as follows:
' “The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement. But it will be enough for present purposes to say generally that the decisions of the court upholding stat utes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them. Hygrade Provision Co. v. Sherman, 266 U. S. 497, 502 (45 Sup. Ct. 141); Omaechevarria v. Idaho, 246 U. S. 343, 348 (38 Sup. Ct. 323), or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, Nash v. United States, 229 U. S. 373, 376 (33 Sup. Ct. 780); International Harvester Co. v. Kentucky, 234 U. S. 216, 223 (34 Sup. Ct. 853), or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co., 255 U. S. 81, 92 (41 Sup. Ct. 298, 14 A. L. R. 1045), ‘that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.’ ”
In Cline v. Frink Dairy Co., 274 U. S. 445 (47 Sup. Ct. 681), and Small Co. v. American Sugar Refining Co., 267 U. S. 233 (45 Sup. Ct. 295), the questions involved were similar to those in the case of United States v. Cohen Grocery Co., supra. In the case of Cline v. Frink Dairy Co., hereinafter quoted, the court properly distinguishes the difference between that case and the one in which the question of negligence is involved.
It will be found upon examination of all the cases referred to and from which quotations were given, with the exception of Commonwealth v. Pentz, supra, that there were involved questions of rates, prices, or words of such indefinite meaning that no legal definition could be found for them either in the statutes, common law, or the general understanding of the public. On the other hand, a statute imposing liability for negligence in driving an automobile at an immoderate rate of speed or in a manner so as to constitute negligence, has been uniformly upheld by our courts, except in a very few instances.
The law of negligence has become part of the law of the land. It is distinctly understood. A statute analogous to the one under consideration has been on the United States statute books since the year 1838. It has been but slightly amended. It is entitled :
“An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam.” 5 Stat. at Large, pp. 304, 306, § 12.
It reads as follows:
11 And be it further enacted, That every captain, engineer, pilot, or other person employed on board of any steamboat or vessel propelled in whole or in part by steam, by whose misconduct, negligence, or inattention to his or their respective duties, the life or lives of any person or persons on board said vessel may be destroyed, shall be deemed guilty of manslaughter, and, upon conviction thereof before any circuit court in the United States, shall be sentenced to confinement at hard labor for a period not more than ten years. ’ ’
As pointed out in the opinion upholding the constitutionality of the law in the Maki Case, there are many crimes on our statute books which must be defined by the use of words of a general and flexible meaning, and the existence or nonexistence of the essential elements of these crimes becomes a question of fact to be determined in each case. It is not possible to use any but general terms for describing the following statutory crimes: wilful, deliberate and premeditated killing; committing an assault with a deadly weapon; assault with intent to do great bodily harm; assault with a gun, etc., or other dangerous weapon; cruelly and unlawfully punishing a child; going armed with an offensive and dangerous weapon or instrument concealed on one’s person; committing a gross fraud or cheat; malicious injury to property; abandonment of wife or children without necessary and proper shelter, food, etc.; drunkenness, intoxication, driving while intoxicated; lewd and lascivious cohabitation; use of indecent language, etc.; crime, sabotage, violence or other unlawful methods of terrorism; gross indecency; disorderly person; allowing a prisoner to escape through negligence; lottery; resisting an officer, etc. It is necessary to apply the rule of reason or common understanding to many statutes in order to carry out their purpose. Standard Oil Co. v. United States, 221 U. S. 1 (31 Sup. Ct. 502, 34 L. R. A. [N. S.] 834); United States v. American Tobacco Co., 221 U. S. 106 (31 Sup. Ct. 632). It, however, is not even necessary to read anything into the statute under consideration. The term “negligence” is so well known, the elements so certain, the definition so definitely settled, and the precedents so many, that there is nothing indefinite whatsoever about it. It might be highly desirable to define every form of negligence in causing homicide in the use and operation of an automobile, but the list would be such a long one and would call for so many permutations and combinations, that it -would be far from complete. It. would lead into uncertainty and confusion.
It is true (as set forth in the opinion sustaining the constitutionality of the law in the Maki Case) that the case of State v. Lantz, 90 W. Va. 738 (111 S. E. 766, 26 A. L. R. 894), held that a statute making it a crime to operate an automobile around a curve on a public road without having the same under control or without reducing the speed thereof to a reasonable and proper rate is void for uncertainty and indefiniteness. It was, however, held by this court in People v. Dow, 155 Mich. 115, 118, that a statute forbidding the driving of automobiles in excess of a certain speed in the “business portion” of cities was not so uncertain and indefinite as to render it void, as a violation of the due process clause of the Constitution. In fact, the overwhelming weight of authority in this country is to the effect that a statute such as the one under consideration does not violate any constitutional provisions.
“The validity of a statute prescribing a penalty for a given act of this character requires that the elements of the offense be stated with legal certainty. State v. Carpenter, 60 Conn. 97 (22 Atl. 497); Commonwealth v. Pentz, 247 Mass. 500 (143 N. E. 322); Huddy on Automobiles (8th Ed.), § 892; Berry on Automobiles (5th Ed.), § 1796.
“Various and conflicting decisions are found in different jurisdictions as to the validity of statutory provisions attacked for failure to meet this requirement. Thus in Texas, a statute making it an offense to drive automobiles other than in a careful manner, has been held void on this ground; Russell v. State, 88 Tex. Cr. 512 (228 S. W. 566); and in Georgia, a statute has been held void which prohibited driving so as to endanger the property or life or limb of any person. Howard v. State, 151 Ga. 845 (108 S. E. 513); Carter v. State, 12 Ga. App. 430 (78 S. E. 205). Both of these provisions would be held valid in this State.
“In most jurisdictions statutes will not be held void for uncertainty if a practicable or sensible effect may be given to them. 3 Blashfield Cyc. of Automobile Law, p. 2045, § 3. So, statutes prohibiting an unreasonable rate of speed are generally sus tained. Ex parte Daniels, 183 Cal. 636 (192 Pac. 442, 21 A. L. R. 1172); People v. Beak, 291 Ill. 449 (126 N. E. 201); Gallaher v. State, 193 Ind. 629 (141 N. E. 347, 29 A. L. R. 1059); State v. Schaeffer, 96 Ohio St. 215 (117 N. E. 220, L. R. A. 1918 B, 945, Ann. Cas. 1918 E, 1137); Huddy on Automobiles (8th Ed.), p. 57, § 63. In Massachusetts, a statute has been sustained -which makes it an offense to drive so as to endanger the lives or safety of the public. Commonwealth v. Pentz, 247 Mass. 500 (143 N.E. 322).
“Statutes prohibiting reckless driving, or driving at a rate of speed which was unreasonable, under all the conditions, are very generally and by the great weight of authority, upheld. Huddy on Automobiles (8th Ed.), p. 408, § 394, p. 1052, § 892.
“The offense of driving* ‘recklessly’ in view of the conditions, as set forth in our own statute, sufficiently meets the requirements of definiteness and certainty. State v. Goetz, 83 Conn. 437 (76 Atl. 1000, 30 L. R. A. [N. S.] 458). The word has a clear and commonly understood meaning, so that one of ordinary intelligence is not left in doubt as to its purport. Though the speed limit formerly imposed in this State has been removed, the term ‘recklessly’ still remains definite. Its test does not lie in speed alone, but in that and other circumstances which together show a reckless disregard of consequences. The claim seems to be that the statute fails to state with particularity the acts prohibited. ' Of such a claim we have said: ‘It would seem to require that all general words used to indicate the offense * * * should be particularly defined. * * * The objection overlooks the fact that the prohibited acts may have a general name to characterize them, as well understood without as with a definition.’ State v. Carpenter, 60 Conn. 97, 102 (22 Atl. 497).
“It will be seen that the same reasoning* applies to the offense of driving ‘so as to endanger the prop erty or life or limb of any person.’ ” State v. Andrews, 108 Conn. 209 (142 Atl. 840). '
To like effect are also: Schultz v. State, 89 Neb. 34 (130 N. W. 972, 33 L. R. A. [N. S.] 403, Ann. Cas. 1912 C, 495) ; Mulkern v. State, 176 Wis. 490 (187 N. W. 190); State v. Goldstone, 144 Minn. 405 (175 N. W. 892); State v. Smith, 29 R. I. 245 (69 Atl. 1061).
“On the other hand, where the statute is within legislative power, courts should be slow to say they cannot understand and enforce its provisions and should exhaust efforts at practical constructions before doing so. Some uncertainty is inseparable from law and life. The jury is our established tribunal for solving uncertainties in the application of law to life. The Magna Carta declared: ‘No free man shall be taken or imprisoned * * * save by the lawful judgment of his peers, or the law of the land,’ seeming to express content at a condemnation by either. Probably all common-law crimes were originally defined only by the common opinion of the people expressed in the verdicts of juries and judgments of courts. In civil matters today omitted stipulations in contracts are supplied by ‘reasonable time’ or ‘substantial performance’ judged of by a jury. In negligence cases juries are told that, while the law lays down a standard of ‘reasonable and ordinary care and diligence,’ exactly what acts the defendant should have done or refrained from, in the exercise of such diligence, is for their judgment. The defendant keeps or loses his money accordingly. Every code of criminal laws contains many vague definitions of crime.” United States v. Oglesby Grocery Co., 264 Fed. 691.
The principal constitutional objection raised in the case at issue was considered in Miller v. Oregon, 273 U. S. 657 (47 Sup. Ct. 344). The constitutionality of the Oregon statute was upheld by the United States Supreme Court. No written opinion was filed in that case. Subsequently, however, the case was referred to and the reasons for upholding the constitutionality of the statute were fully set forth in Cline v. Frink Dairy Co., 274 U. S. 445 (47 Sup. Ct. 681). In the latter case Chief justice Taft said:
“On questions of confiscatory rates for public utilities, for instance, courts must examine in great detail the circumstances and reach a conclusion as to a reasonable profit. But this does not justify in such a case holding the average member of society in advance to a rule of conduct measured by his judgment and action in respect to what is a reasonable price or a reasonable profit. It is true that, on an issue like negligence, i. e., a rule of conduct for the average man in the avoidance of injury to his neighbors, every one may be held to observe it either on the civil or criminal side of the court. It is a standard of human conduct which all are reasonably charged with knowing and which must be enforced against every one in order that society can safely exist. We said in the Nash Case (229 U. S. 373, 377, 33 Sup. Ct. 780): ‘But apart from the common law as to restraint of trade thus taken up by the statute the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong’, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. “An act causing death maybe murder, manslaughter, or misadventure according to the degree of danger attending it” by common experience in the circumstances known to the actor. * * * “The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested' a more circumspect conduct. ’ ’ 1 East, P. C. 262. ’ Following the authority in the Nash Case, we sustained in Miller v. Oregon, per curiam, 273 U. S. 657 (47 Sup. Ct. 344), a convic tion of manslaughter under a statute of Oregon, which made the following rule of conduct a standard of criminality:
“ ‘Every person operating a motor vehicle on the public highways of this State shall drive the same in a careful and prudent manner, not to exceed 30 miles per hour, and within the limit of incorporated cities and towns not to exceed 20 miles per hour, and at intersections and schoolhouses not to exceed 12 miles per hour, and in no case at a rate of speed that will endanger the property of another, or the life or limb of any person.' Ch. 371, General Laws of Oregon, 1921, §2, subd. 16).
“The indictment was framed under the last clause of this statute. Such standard for the driver of an automobile on a highway is one to which it is neither harsh nor arbitrary to hold those criminally who operate such a possibly dangerous instrument of locomotion, and who are or ought to be aware of what degree of care is necessary to avoid injury to others under the conditions that prevail on a highway.”
In this discussion of the law of negligence, we have considered the.constitutional objections raised. The negligent homicide law does not suspend or repeal existing statutes governing the operation of automobiles; it does not deprive one of life, liberty, or property without due process of law; it is not an ex post facto law, and the law of any particular cause can be declared or known before the offense described in the act has been committed; it does not withhold information from the accused as to the nature of the accusation against him; it does not delegate legislative powers to the jury, or give a judicial department of the government any legislative powers. "With the words “shall be a question of fact for the jury” eliminated, the act is valid and constitutional.
The order of the lower court quashing the indictment and discharging the prisoner is set aside. The lower court is directed to proceed to try the respondent under the indictment.
Wiest, C. J., and Clark, Sharpe, and North, JJ., concurred with Butzel, J.
McDonald and Potter, JJ., concurred in the result. | [
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Sharpe, J.
The bill of complaint herein was filed to secure a judicial construction of the second paragraph of the last will and testament of Louis H. Rousseau. It reads as follows:
“Second I give, devise and bequeath all of my property, either real estate or personal to my wife, Eudora H. Rousseau, (for) her lifetime to do “with as she sees fit. At her death my estate is to he equally divided among the following:”
(The word “for” preceding “her lifetime” seems to have been omitted, but the intent to include it seems plain.)
A number of relatives were thereafter named. The first question presented is whether an estate in fee simple passed to the widow, or a life estate with remainder over to the persons named.
It may be stated at the outset that the decisions of this court relied upon by counsel on both sides go far to sustain the construction they claim should be given to this paragraph. But, as was said by Chief Justice'Marshall in the early case of Smith v. Bell, 6 Pet. 68 (quoted with approval in Jones v. Deming, 91 Mich. 480, 482):
“It has been said truly ‘that cases on wills may guide us to general rules of construction; but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.’ ”
Counsel are agreed that the intention of the testator, as expressed in the instrument, taken as an entirety and giving to the words used the meaning the testator gave to them, must control. This rule of construction seems to be universal. Rood on Wills, §413; Bateman v. Case, 170 Mich. 617, 620; In re Ives’ Estate, 182 Mich. 699, 704; In re Manshaem’s Estate, 207 Mich. 1.
With the intent of the testator as a polar star to guide us, let us examine this paragraph. It clearly states that the testator gives all of his property to his wife for her lifetime. It just as clearly states that at her death it is to be equally divided among certain, persons, naming them. "Were not the words “to do with as she sees fit” inserted, following the word “lifetime,” it seems clear that but a life estate in the widow, with remainder over to the persons named, was created. Must we construe these words as granting such an absolute and unlimited power of disposal in the widow that she takes the fee notwithstanding the use of the words “for her lifetime” and the provision for remainder over at her death?
In giving effect to the intent of the testator, we must consider the clause as a whole. That part of it providing for a remainder over is superfluous and must be, expunged if the fee passed under the language theretofore used. But we are no more at liberty to disregard this provision than the gift to the wife. Is not the intent of the testator easily understood ? In making the gift to his wife, he, in effect, says to her, “You may do as you will with this property. Keep it as it is, or sell and dispose of it as you please. You may use any part or all of it, but, whatever you may do with it, that which you have left will belong to the persons I have named as remainder-men.” The words “for her lifetime” clearly limit her estate to one for life. They are so simple, and of such familiar use, that the testator, when he read this will, or when it was read to him, must have clearly understood their meaning. He doubtless wanted his wife to have the use of his property so long as she lived. He fully appreciated the limitation of her ownership to her lifetime, and left it to the scrivener to express his further intent by appropriate language. Unfortunately, that used has created the uncertainty to which this litigation is due. But, if the intent is to be gathered from the four corners of the instrument, a life estate only passed to the widow, with remainder over to the persons named.
Rules of construction are adopted and applied in the interpretation of wills where the language used does not clearly and definitely express or convey the testator’s intent, or where the intention is obscure because of the use of inconsistent words or clauses, but should not be applied in any case where the purpose and intention of the testator is positive and unmistakable, even though badly expressed and by words and phrases improperly used or arranged. Hoffer v. Damskey, 220 Mich. 97.
In the briefs of counsel, the decisions of this court, as well as those of other jurisdictions, are cited and commented on at length. Counsel for the widow relies, as did the trial court, on the rule announced in the early case of Jones v. Jones, 25 Mich. 400, and followed in the more recent case of Gibson v. Gibson, 213 Mich. 31. In this latter decision, the two classes of cases decided by this court are cited. The opinion in that case may well be said to hold that when the devisee, even if limited to a life estate, is given “full power of alienation and consumption” an estate in fee is created. The writer of this opinion did not concur in that of Mr. Justice Brooke, in which a majority of the court joined. I thought then, and I think now, that in so deciding this court lost sight of the cardinal rule which must be applied in the construction of wills “that the real intent and meaning of the testator, as expressed in the will, should be given effect, and that for this purpose all the clauses of the will are to be considered.” Gadd v. Stoner, 113 Mich. 689, 691.
In Cary v. Toles, 210 Mich. 30, decided less than six months before the Gibson Case was submitted, and in which the same justices participated, there was unanimous concurrence in the opinion written by Mr. Justice Clark, in which it was held that, where theie was a gift without reservation to a granddaughter, “to have and to hold the same to her forever,” followed by a proviso that, in ease she should die without lawful issue, the unexpended part of the property so willed to her should go to others, the granddaughter took but a life estate. The authorities supporting this construction are reviewed and quoted from at length, and the conclusion reached that there should be gathered “from the four corners of this will a definite intention on the part of the testatrix to give a life estate in the property to her daughter.” It may be noted that this case was not referred to in the opinion of Mr. Justice Brooke in the Gibson Case. The case of Law v. Douglass, 107 Iowa, 606 (78 N. W. 212), was quoted from to sustain the holding in that case. The same quotation appears in Killefer v. Bassett, 146 Mich. 1. In the latter case, as well as in the Iowa case, the bequest was not limited to the lifetime of the taker. Neither of these decisions is applicable to a bequest limited to a lifetime, as was that in the Gibson Case or is that in the case before us. It is of interest to note that in a much later case in the Iowa court (Olson v. Weber, 194 Iowa, 512 [187 N. W. 465, 27 A. L. B. 1370]), in construing a bequest made to a wife “to have and to hold for and during her natural lifetime; with full power, however, to my said wife to sell and convey any or all of my said estate, real or personal, as she may see fit, and use the proceeds thereof as she may see fit,” with remainder over of whatever part thereof that remains undisposed of by her at her death, it was" held that but a life estate passed to the widow.
In 28 B. C. L. p. 238, it is said:
“The case of a devise of a life estate with an absolute power of disposition and a remainder over has been passed upon by courts in many jurisdictions. The great weight of authority is to the effect that a life estate is not changed to a fee by the added power of disposal in the life tenant, but that the estate given the taker is a life estate with an added power of disposal. * * *”
The widow is still alive. The next question is, What she may do with the property during her lifetime? The absolute power of disposal is conferred upon her. She may sell and dispose of it if she sees fit to do so and use the proceeds for any purpose necessary for her support and comfort. But, in my opinion, she may not give it away or dispose of it by will or by a deed operating as a testamentary disposition, The power of disposal does not in itself create an estate in her in the property. It is but an authority derived from the will itself, and presumably deemed necessary by the testator for her enjoyment thereof during her lifetime. She has but an estate for life, and, as was said by Mr. Justice Montgomery in Gadd v. Stoner, supra (693):
“But if the estate vested in her is less than a fee, certainly the limitation of good faith will be affixed by law. ’ ’
In Peer v. Jenkins (N. J. Eq.), 140 Atl. 413, the testator by the last provision in his will gave to his wife and daughter “the privilege of selling my real estate, or any part of it at any time, and my wife to receive one-third of the profits and my daughter, Emily Jane Van Dine, two-thirds of the profits.” In determining the legal effect of this provision, the court alluded to the fact that the will was drawn “by one unfamiliar with legal terms,” and said that “In construing a will, the object to be attained is to determine the intent of the testator as gathered from the whole document as applied to the testator’s situation,” and that “Courts, in construing a will, may depart from its strict words and read a word or phrase in a sense different from that which is ordinarily attributed to it, when such departure is necessary to give effect to what appears, on a full view of the whole will, to have been the intention of the testator,” and held that the word “profits” in the paragraph above quoted should be held to mean “income. ’ ’
In Kratz v. Kratz, 189 Ill. 276 (59 N. E; 519), the ' second paragraph of the will read:
“I give and devise to my wife, Caroline Kratz, during her widowhood, all my lands, tenements and hereditaments, of every nature and description, wherever situated; and all my interest in real estate, mortgages, notes, absolutely and unconditionally; also, all my money, accounts, bonds and evidences of indebtedness and personal property, and personal estate of every nature and description, absolutely and unconditionally,”
And the third paragraph read:
“I direct that after the decease of my wife, Caroline Kratz, all the property, real or personal, notes, mortgages, evidences of indebtedness, of whatever nature or description, which my said wife at the time of her death may possess, be given, devised and bequeathed to my only child, William Kratz, absolutely, and on condition that all my wife’s just debts and funeral expenses be paid by him (William Kratz).”
The court held that the words ‘ ‘ absolutely and unconditionally” should be understood to “mean no more than that the wife shall have the property without condition during the time in which she is to hold it,”
In Olson v. Weber, supra, the provision of the will under consideration read:
“Second. I will, devise and bequeath unto'my wife, Elizabeth Jones, all the property, real, personal and mixed, of which I may die seized or be entitled to at my death, to have and to hold for and during-her natural lifetime; with full power, however, to my said wife to sell and convey any or all of my said estate, real or personal, as she may see fit, and use the proceeds thereof as she may see fit, but it is. further my will that my said estate or whatever part thereof that remains undisposed of by my said wife at her death, shall go to and be held by Emma B. Taylor, wife of James A. Taylor, now residing at Averyville, in the said county of Peoria, for and during her natural lifetime, and at her death to be divided equally between the children of said Emma B. Taylor.”
It will be noticed that the power conferred upon the widow to sell and convey “as she may see fit, and use the proceeds thereof as she may see fit” was quite similar to that in the case before us. After alluding to the familiar rule that “it is the intention of the testator which we seek to find and declare,” and quoting many authorities, it was held that but a life estate passed to the widow, and that “A change in the form of the estate under the power expressly given in the will does not have the effect to enlarge or change the nature of the original title thereto;” that “the will of the testator could easily be defeated by the life tenant if by the mere fact of sale such tenant could enlarge a life estate into a fee. ’ ’ •
In an annotation appearing in 2 A. L. R., wherein the estate of a life tenant, with power of disposal, was considered at length, under the heading “Grift,” at page 1316, the annotator says;
“Where a will gives a life estate for the use and benefit of the life tenant, with a power of sale or disposition, and an express remainder over of ‘what remains,’ or some equivalent phrase, while the life tenant is entitled thereunder to the possession and control of the property during his life, with power to dispose of the whole or any part of the principal thereof as his necessities may require or his judgment dictate, he cannot dispose of it by gift inter vivos.”
Under the heading “Devise,” which follows, it is said that under such a provision the life tenant “cannot dispose of the property by will or by a deed operating as a testamentary disposition.”
The cases cited and discussed well support the text, and are so easily available for examination that we refrain from further reference to them.
In 17 R. C. L. p. 624, it is said:
“The great weight of authority, however, supports the rule that a life estate expressly created will not be converted into a fee, absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive, for the reason that a power of disposal is but a bare authority derived from the will and is not in itself an estate.”
I conclude the discussion of authorities by again referring to Smith v. Bell, supra, which has been so many times cited and quoted from by this and other courts. In that case a provision of the will under consideration read:
“I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever, and wheresoever, and of what nature, kind, and quality soever, after payment of my debts, legacies, and funeral expenses; which personal estate, I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely: the remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin.”
After a lengthy discussion of the legal effect of this provision and a review of the authorities, which we refrain from quoting, the chief justice announced the holding of the court to be that “the limitation to the son on the death of the wife restrains and limits the preceding words so as to confine the power of-absolute disposition, which they purport to confer of the slaves, to such a disposition of them as may be made by a person having only a life estate in' them.”
The decree entered in the circuit court is reversed, and one will be entered here in conformity with this opinion. The taxable costs of the appeal will be payable out of the estate.
Wiest, C. J., and Butzel, Clark, McDonald, Potter, Fead, and North, JJ., concurred. | [
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Potter, J.
July 23, 1924, plaintiffs filed a bill of complaint against defendants Robert Pogue, Mary Pogue, Priscilla Reid, Porter Lamphere, "William Dixon, and Margaret Dixon, doing business as Lum Exchange Bank, Delos Conley, personally, and Bernard S. Fineman, doing business as Lum Exchange Bank, asking for a receiver for Fineman, doing business as the Lum Exchange Bank, and of all of the assets of the bank; to wind up the affairs of the bank and distribute its assets, direct a- reconveyance to the bank or to the receiver of certain real estate claimed to have been purchased by Fineman with the assets- of the bank; to restrain Fineman from selling or disposing of any of his property or of the bank’s property pending suit; to restrain Conley from assigning or otherwise disposing of certain notes, checks, papers, and bonds held by him in accordance with the contract hereinafter set up, except to the receiver, and to set aside, on the ground of fraud, the transfer of liability to the plaintiffs from the partnership to Fineman and to recover personal decrees in the nature of money judgments against the defendants, other than Conley, for the amount due plaintiffs and the other depositors less the amount distributed by the receiver, and for other relief.
'A receiver was appointed August 13, 1924, with the usual powers and duties of a receiver, and defendants were ordered to transfer to him all of the bank’s assets, and the receiver was authorized to receive and dispose of the same.
The case was tried, and April 8, 1926, an opinion was filed. On August 4, 1926, an interlocutory decree was entered appointing a receiver not only of the assets of defendant Fineman but of the partnership doing business as the Lum Exchange Bank, directing the receiver to collect from defendant Conley the $25,000 in par value of bonds that he held, and that he deliver all other assets in his hands belonging to the partnership, including the notes, checks, and deeds to the amount of $4,000 held by him to the receiver; that defendants, constituting the partnership, and Margaret Dixon, convey the real estate and banking building and the vacant lot described in the decree, to the receiver, assign all of the real estate mortgages, notes, and other collateral due to the Lum Exchange Bank to such receiver, and decreeing that the title thereto should be’ vested in such receiver, and enjoining Fineman and Conley as prayed for in the bill of complaint, and providing that the receiver sell and dispose of all personal property and real estate in his possession, the pro eeeds to be held for pro. rata distribution among all the depositors except partners of the Lum Exchange Bank as conducted by said partnership and by Fine-man; all moneys which would have gone to the depositors with whom the partners have settled since suit commenced to be held by the receiver as a separate fund, and all depositors who had not released' their claims against the partners by novation or otherwise, might, within 60 days intervene in this suit and prosecute their claims at their own expense, except as allowed by the court against the partnership, and such of them as might establish their claims against the partnership be entitled upon final decree to be paid from such special fund such amount as they might be entitled to over and above the amounts coming to them on a pro rata distribution of the general fund; any portion of the special fund remaining after the payment of such depositors proving their claims, to go to partners; that proofs might be taken before the court to ascertain the status of any depositor’s claim, and that plaintiffs and all other depositors have decree against Fine-man for any amounts due after crediting payments made by the receiver.
In accordance with the provisions of this interlocutory decree, various depositors of the bank filed intervening petitions, and, after a hearing thereon, a final decree was entered August 25,1927, following substantially the form of the interlocutory decree above referred to, directing the pro rata distribution of the assets of the bank, less expenses, to the depositors, and giving a decree to. certain intervening plaintiffs against the defendants except Conley, for any amount due after payment as provided in the interlocutory decree; the amount of said money decree to be ascertained and entered upon application to the court after distribution.
From the final decree entered, defendants Robert Pogue, Priscilla Reid, Porter Lamphere, William Dixon, and Margaret Dixon doing business as Lum Exchange Bank, and Delos Conley appealed.
The Lum Exchange Bank was an old institution. It was acquired by defendant copartners several years before its transfer to Fineman. The partners had drawn no salaries. The bank had paid no dividends. It had suffered losses and owed, when taken over by Fineman about $6,500 more than it had assets to cover. Some of the partners were getting along in years and wanted to sell out and retire from business. Fineman was engaged in the building business in Detroit. He had been through bankruptcy but a few years before he became interested in acquiring the Lum Exchange Bank. Some investigation was made of his responsibility, and the partners were led to believe he was of sound financial standing. They agreed to sell the bank to him. Examination of the financial condition of the bank showed it was insolvent. The partners were familiar with their liability to their depositors, and were anxious to be protected from personal loss. To facilitate the sale of the property and business, it was agreed that the members of the partnership should put up $4,000 toward making the bank solvent. Fine-man was to have possession of the bank upon putting up $25,000 in par amount of real estate' bonds, and to assume liability to all depositors.
A written contract was made and entered into by the partners, as follows:
“ Agreement made this 23d day of May, 1924, between Robert Pogue, Mary Pogue, Porter Lamphere, William Dixon, and Priscilla Reid, copartners doing business as the Lum Exchange Bank, of Lum, Michigan, hereinafter called the vendors, and Bernard S. Fineman, of Detroit, Michigan, hereinafter called the purchaser.
“Whereas, the vendors have conducted a private banking business at Lum, Michigan, for several years, and are now desirous of retiring from said business, and the said purchaser is desirous of establishing a banking business at Lum, now, therefore, vendors agree to sell, and purchaser agrees to purchase, the. property and assets of said Lum Exchange Bank, hereinafter mentioned and described upon the terms and conditions hereinafter stated.
“It is understood and agreed that the property and assets of said Lum Exchange Bank which vendors herein agree to sell to purchaser includes the following items: Banking house now occupied by said Lum Exchange Bank at Lum, Michigan, with land appurtenant thereto; bank furniture and fixtures in said building and used in the business of said bank; vacant lot owned by said vendors, situated on northeast corner of four corners west of building known as Masonic Hall, in Lum, Michigan; notes and bills receivable, $24,064.71; accrued interest on said notes and bills, $1,633.94; items in transit, $1,223.80; cash, $4,000; mortgages, $3,663.94. It is understood that the amounts above given of bills receivable, accrued interest, items in transit and mortgages, are as of'date May 7, 1924, as shown by the books of said bank, and according to statement furnished to purchaser by vendors.
‘ ‘ The said vendors, in consideration of the agreement herein specified to be performed by purchaser, agree to execute and deliver good and sufficient deed of conveyance of the real estate above mentioned, and to execute and deliver bill, of sale of the furniture and fixtures of said bank to said purchaser, also to transfer, assign and endorse to said purchaser the mortgages, and bills receivable hereinbefore mentioned as assets of said Lum Exchange Bank.
“It is also mutually agreed by the parties hereto that said deed, bill of sale, mortgages and assignments thereof, and bills receivable, upon transfer thereof, shall be turned over to A. D. Conley, of Imlay City, Michigan, to be held by him in escrow, until the performance of the agreement herein contained to be performed by said purchaser, shall be completed to the satisfaction of the said A. D. Conley and Elmer Shumar, of Imlay City, Michigan.
“It is also agreed on the part of said purchaser, that he will turn over to said A. D. Conley first mortgage bonds in the amount of $25,000 to be held by said Conley until completion of agreement by said purchaser as above stipulated.
“It is further agreed by the parties hereto that the liabilities of said Lum Exchange Bank, as shown by the books of said bank as of date May 7,1924, and in statement furnished purchaser by vendors, consist of the following items: Commercial account, $20,683.07; certificate of deposit, $1,671.50; savings accounts, $39,310.34.
“The said purchaser, in consideration of the transfer to him of the assets of said Lum Exchange Bank, and the performance of the agreement herein contained to be performed by said vendors, agrees to assume the liabilities of said Lum Exchange Bank as hereinbefore mentioned, and agrees to pay to the depositors named in said accounts and certificates the amounts standing to their credit, and to secure from said depositors a release of said vendors from all liability on said accounts and certificates.
“It is agreed that the sale herein provided for shall include the good will of the banking business at Lum, Michigan, and that said purchaser shall have immediate possession of said banking house and fixtures, upon execution of said agreement, and also immediate possession of all other assets of said Lum Exchange Bank hereinbefore mentioned, except those held in escrow as hereinbefore provided.
“In witness whereof, the parties hereto have set their hands to this agreement the day and year first above mentioned.
“Robert Pogue,
“Mart Pogue,
“Porter Lamphere,
“Wm. Dixon,
“Priscilla Reid,
“Bernard S. Fineman.”
In pursuance of this contract, Mr. and Mrs. Pogue, Porter Lamphere, Priscilla Reid and William Dixon were to put up $4,000 in all. This was done by giving promissory notes and checks on the bank, which notes and checks were delivered in escrow to defendant Conley, and, in pursuance of the contract, Fine-man delivered to Conley $25,000 in par amount of real estate bonds, to be held in escrow pending the carrying out of the contract.
Fineman then went into possession of the bank, and began doing business, continuing in his employ the same cashier who had been employed by the partnership. Fineman continued to run the bank for some time. He made some improvements on the building, and acquired an interest in other - real estate. The Lum Exchange Bank carried a substantial cash balance in its account.in the National Bank of Commerce in Detroit. It rapidly found its way into Fineman’s pockets, and the Lum Exchange Bank closed its doors. Many of the depositors, knowing the Lum Exchange Bank had been sold by the partnership, surrendered their old deposit books and accepted new ones in the Fineman bank. Other depositors of the bank were not asked to surrender their old books and did not do so. Several depositors in the partnership bank claimed to have been fraudulently induced to surrender their old deposit books and to accept Fineman’s credit by statements of Ms financial responsibility which proved to be false, and the assurance that the individual partners were back of Fineman.
Should the $4,000 put up by the partnership to establish its solvency and deposited with Conley in escrow be delivered to the receiver? We think not. The deal providing for the sale of the bank by the partnership to Fineman was never consummated. Fineman never carried out his agreement. He did not relieve the partners from individual liability. The notes and checks deposited by the individual members of the partnership with Conley were deposited conditionally. The conditions on which they were deposited were never performed by Fineman. No delivery of such notes and checks to Fineman was warranted, and they never became assets of Fineman or of the partnership bank to which the creditors were primarily entitled to access.
It is claimed, as to some of the interveners who surrendered their old books issued by the partnership and accepted new ones issued by Fineman, that the purported novation was procured by fraud, and they are not bound thereby.
“Novation” means simply the substitution of one debtor for another, or the substitution of a new obligation for an old one, which is thereby extinguished. It is based upon contract, which may be set aside for fraud. We think there was sufficient evidence to avoid a novation in the cases presented. There was evidence showing some of the depositors in the partnership bank were led by statements made by members of the partnership, on which they had a right to rely, as to Fineman’s financial ability, which statements proved to be false, to surrender their old passbooks and to accept new ones in Fineman’s bank. No doubt defendants were themselves misled as to Fineman’s -wealth and responsibility, but this is no defense. The result to the interveners was the same whether defendants acted in good faith or in bad faith in making such statements.
Where novation is procured by fraud, it may be set aside.
In re Tagliabue’s Estate, 206 N. Y. Supp. 222; Guichard v. Brande, 57 Wis. 534 (15 N. W. 764).
Some of the partners in the bank were also depositors therein. This was particularly true of Lamphere, who, at the time of the transfer, had $3,527.84 on deposit, and defendant Reid, who had $1,346.41. It is not shown that either of these partners have ever made any statements to induce any of the depositors of the Lum Exchange Bank to transfer their accounts to Fineman’s bank. That they were partners in the old bank does not prevent their being depositors therein, entitled to the same right to participate in the distribution of the assets, of the bank as are other depositors.
Some members of the partnership, after the bank was closed, settled with a number of depositors and took-from each of such depositors an assignment of their several claims against the bank. As assignees of valid claims against the Lum Exchange Bank, they are entitled to participate in .the distribution of its assets, in accordance with the amount of the claims of such depositors.
The decree of the trial court directs that Conley surrender to the receiver the notes, checks, papers, and bonds deposited in escrow. We have already discussed and disposed of the $4,000 in commercial paper.
The $25,000 in par amount of bonds 'are conceded to be worthless, and are therefore not further considered.
The decree gives the intervening plaintiffs a decree against the defendants, except Conley, for any amount due on their respective claims, after receipt of their pro rata share in the hands of the receiver. Defendant Margaret Dixon is not shown to have been a member of the partnership. She disclaims any interest therein. We are unable to ascertain upon what theory interveners are entitled to a personal decree in the nature of a judgment against her.
The decree of the trial court will be modified as above indicated, and, as so modified, will be affirmed, without costs.
Wiest, C. J., and Butzel, Clark, Sharpe, Fead, and North, JJ., concurred. McDonald, J., took no part in this decision. | [
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North, J.
The plaintiff herein received injuries by being struck by the automobile of the defendant Maxon while he was driving the same. Plaintiff sued both Maxon and his employer, the defendant Roach. She had judgment against the defendant Maxon; but as to the defendant Roach the trial court-directed a verdict of not guilty. The plaintiff reviews the directed verdict and judgment thereon by writ of error.
Mr. Roach maintains a stable of horses at Hart; Michigan. Since 1914 the defendant Maxon has been employed by Roach to care for the latter’s horses and to accompany them in a truck by which they are conveyed to the various places where races are held. It was Maxon’s duty to' look after the horses while they were being thus transported and to drive them in the races. The defendant Roach furnished a chauffeur to drive the truck in which the horses were conveyed .and in which Maxon and a caretaker were directed by Roach to ride. In the fall of 1927 one of Mr. Roach’s horses was taken in his truck to the county fair at Marshall, Michigan. After the racing events were over the horse was carried in the Roach truck from Marshall to Hart. The route taken by the truck on this trip does not appear in the record. Instead of accompanying the horse in the truck provided for by the defendant Roach, Mr. Maxon used his own automobile in returning to Hart. He went by way of Grand Rapids, and, when a short distance south of Grand Rapids, an accident occurred in consequence of which the plaintiff brought this suit. The record presents two questions:
(1) At the time of the accident was Maxon engaged in the service of his master or about his master’s business?
(2) Is the master liable for injuries inflicted by his servant while engaged in unnecessarily driving his individual automobile upon the master’s business but without the latter’s knowledge or his expressed or implied authorization?
The following appears in the undisputed testimony of the defendant Maxon:
“Q. Did you intend to stop at Grand Rapids if you hadn’t had an accident?
“A. Sure, I would stop here a few minutes.
“Q. What were you stopping for?
“A. I had some business here, and I thought it was late in the year and it was a good time to stock up with winter clothes:
“Q. What other business did you have?
“A. I don’t remember just now what it was.
“Q. Something in connection with your horses?
“A. No, it was in connection with my own business. I have some friends that used to live in Hart.
“Q. Were you going to see Mr. Roach while you were here ?
“A. I did not intend to.”
The following rule as to whether a servant is acting in the course of his master’s employment was laid down in Riley v. Roach, 168 Mich. 294, 307 (37 L. R. A. [N. S.] 834):
“The test of the liability of the master for his servant’s acts is whether the latter was at the time acting within the scope of his employment. The phrase ‘in the course or scope of his employment or authority’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.”
We think it clearly appears from this record that Maxon was not acting in the course of his master’s service or incident thereto at the time this accident occurred. Under the arrangement or understanding, he was supposed to accompany the latter’s horses by riding in the same truck in which they were being transported in order that he might be present and look after or at least supervise the safety and welfare of the horses. When Maxon neglected or refused to discharge this part of his duty as an employee and instead took his own automobile and used it as a means of going when he pleased and where he pleased on his return to Hart, entirely independent of the transportation of his employer’s horse, he was not acting within the course or scope of his employment. Especially must this be held to be the fact in view of his undisputed testimony that he had purposes of his own wholly outside of his employment which caused him to return by way of Grand Rapids. If the question were to be asked, "Would this accident have happened if Maxon had accompanied the truck in which his employer’s horse was being transported?” there could be only one answer, and that would be in the negative. At the time of the accident, instead of acting within the scope of his employment, Maxon was neglecting all of his duties incident thereto. His act was a complete departure from his employment. We have held that a mere deviation by servant from the regular route of his duties takes him outside of his employment. Murphy v. Kuhartz, 244 Mich. 54. Plaintiff relies upon Loux v. Harris, 226 Mich. 315, and Cumming v. Crank Shaft Corp., 232 Mich. 158. In the Loux Case the defendant’s employee at the time and place of the accident out of which the suit arose was unquestionably in the act of selling gasoline for his employer, which was the identical thing he was hired to do. In other words he was acting for his master within the scope of his employment. In the Gumming Case the defendant’s employee was using his own car in his employer’s business under the express direction of the employer’s superintendent and in exact accord with such.direction. The dissimilarity between these cases and the one at bar is obvious.
It appears from the record that the defendant Maxon during the year 1927 had used his own automobile as a means of travel on previous occasions instead of accompanying his employer’s horses in the truck. But the undisputed proof shows that this was both contrary to his employer’s directions- and without his knowledge, either express or implied. Such use of his automobile by Maxon on former occasions without his employer’s knowledge cannot affect the legal aspect of this case. There is nothing in this record which justifies the conclusion or even an inference that Maxon had any occasion to operate a motor vehicle incident to his employment by Mr. Roach. Roach cannot be held unless the relationship of master and servant existed between him and Maxon in the sense that the latter’s course of conduct was under the control or direction of the former, or at least unless the right to control existed in Roach.
“The test of the relationship (of master and servant) is the right to control. It is not necessary that there be any actual control by the alleged master to make one his servant or agent, but merely a right of the master to control. If there is no right of control there is no relationship of master and servant.” Khoury v. Edison Electric Illuminating Co. (Mass.), (164 N. E. 77, 60 A. L. R. 1159).
The facts in the case just quoted would much more logically lead to the conclusion that the master was liable than in the instant case. There the driver of the automobile was at the time in the employment of the master and was being paid for the use of his (driver’s) automobile which he had the option of using in his master’s business. The master was held not to be liable for injuries resulting from the negligent manner in which the employee operated his own automobile. In the case at bar, the undisputed testimony discloses that Maxon was not acting within the scope of his employment at the time of the accident, and that his acts which gave rise to this accident were in no way under the control of his employer. A case involving similar facts and questions of law was recently decided by the supreme court of North Dakota. Parker Motor Co. v. Northern Packing Co. (N. D.), 227 N. W. 226. The trial judge was correct in directing a verdict for the defendant Roach, and the judgment entered is affirmed.
"Wiest, C. J., and Butzel, Clark, Potter, Sharpe, and Fead,- JJ., concurred. McDonald, J., took no part in this decision. | [
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Clark, J.
This is a so-called padlock case. The bill was filed pursuant to provisions of Act No. 389, Pub. Acts 1925, of which see People v. Holschuh, 235 Mich. 272.
Defendants Harry Rhodes and Cynthia Rhodes were tenants of the place, the defendant corporation was lessor, and defendant Randall secretary and treasurer of the corporation. Plaintiff had decree. Defendants have appealed. The meritorious question is that the bill ought to have been dismissed both as to the tenants and the landlord.
The finding by the court of nuisance under the act must be sustained. There is plenty of evidence that the place was one kept for the selling and furnishing of intoxicating liquors, and that such liquors were possessed and sold.
The evidence also requires the inference that the corporation by its said officer knew of the character of the business there being conducted by its tenants and countenanced the same.
The decree in abating the nuisance and padlocking the place for four months is affirmed.
The part of the decree ordering sale of all furniture, fixtures, and contents of the building must be modified (People v. Holschuh, supra), and sale of sufficient thereof to pay costs instead decreed. So modified, the decree is affirmed.
Wiest, C. J., and Btjtzel, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
Clark, J.
Plaintiff filed this bill for appointment of receiver for defendant, a Michigan corporation. He alleges that he is a simple contract creditor, also a guarantor of corporate indebtedness, also a stockholder.
The defendant was engaged in'the manufacture of gasoline pumps. It is alleged that it has stock, material, and other personal property from which it ought to realize in the course of business as a going concern $56,000. As it is out of business and not a going concern, the value of such property, it is assumed, is very much.less. It is indebted to creditors in the sum of $20,000 and more.
.Some creditors have brought suit with garnishment. Others threaten suits to'result in attachments and levies. The corporation cannot pay its debts, has no credit, and-.is without funds for operating. Because of the power and strength of competitors it is now, and for considerable time has been, unable to conduct, except at a loss, the business it was organized to do. It has failed of the purpose for which it was created.
It is admitted that the purpose of the receivership is to wind up the affairs of the corporation, and that is apparent on the face of the bill. Dissolution is not specifically prayed. The bill alleges the belief that the corporation is solvent, but the total of its allegations approximates the contrary. At least threatened insolvency is alleged; The corporation, answering, admitted the bill and consented to receivership. A receiver was appointed, who qualified and entered upon its duties. Standard Sanitary Manufacturing Company, a judgment .creditor, intervened and moved to discharge the receiver. The motion was granted. Plaintiff has appealed.
It is conceded that plaintiff as a simple contract creditor is not'entitled to relief in equity, not having exhausted his remedy at law. Gillen v. Wakefield State Bank, 246 Mich. 158.
This bill is not based upon the statute permitting dissolution of corporations in certain cases. 3 Comp. Laws 1915, § 13563. It is addressed to inherent power of the court of equity. That winding up of the affairs of a corporation may in effect accomplish dissolution, see Vila v. Grand Island, etc., Co., 68 Neb. 222, 233 (110 Am. St. Rep. 400, 4 Ann. Cas. 59, 63 L. R. A. 791).
There is no doubt that in certain exceptional cases, such as relieving from fraud, or breach of trust, a court of equity may in its inherent power wind up the affairs of a corporation as an incident to adequate relief. Grand Rapids Trust Co. v. Carpenter, 229 Mich. 491; Corliss v. Clinton Circuit Judge, 212 Mich. 476; Carpenter v. Landman, 192 Mich. 544; Town v. Duplex-Power Car Co., 172 Mich. 519; Miner v. Ice Co., 93 Mich. 97.
But in the absence of all such exceptional circumstances the equity court, in its inherent power, may not dissolve a corporation, wind up its affairs, and, for that purpose alone, sequester corporate property. 14a C. J. p. 941; 2 Clark on Receivers (2d Ed.), p. 1121; 5 Cook on Corporations (8th Ed.), § 863; Fuller v. McCormick, 156 Mich. 518; Central Holding Co. v. Bushman, 238 Mich. 261.
When it became apparent, as it did, that the corporation could not accomplish the purpose for which it was organized, that it was not possible to conduct business without loss, it thereupon became the duty of the directors to wind up its affairs. Their failure to do só, witlrits aggravation of loss, was a breach of the trust reposed in them by stockholders, and, in a sense, a constructive fraud upon them. In such circumstances, plaintiff stockholder might appeal to the inherent power of the court of equity, and, under authorities cited, be afforded the relief prayed.
Nothing is said of whether plaintiff first applied to the directors or to the stockholders (Grand Rapids Trust Co. v. Carpenter, supra) for relief, and no point is made of it, so it is passed.
. For the reason that courts, at the instance of stockholders, are slow to displace directors in management of corporate business and affairs, we emphasize the fact that the corporation here admitted the allegations of the bill and consented to receivership.
Order reversed. Costs to plaintiff.
Wiest, C. J., and Butzel, Potter, Sharpe, Fead, and North, JJ., concurred. McDonald, J., took no part in this decision. | [
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Sharpe, J.
On December 3,1928, the board of education of the city of Grand Rapids adopted a resolution stating that it was necessary to enlarge the site of the Vocational and Technical High School (so-called) by acquiring three parcels of land, specifically describing them; that it was unable to agree upon the price to be paid with the owners thereof; that the acquiring of said land was a necessary public improvement, and that it deemed it necessary to take the same for the enlargement of said schoolhouse grounds and for the use and benefit of the public, and instructed the city attorney to take the necessary proceedings to condemn the same. The city attorney thereupon filed a petition for condemnation in the superior court of said city.
Among the parcels sought to be taken was a strip of land owned by Cornelia S. Campbell. Service was duly made upon her, and she appeared by her attorneys. Upon the hearing a jury was impaneled, and, after the proofs on the part of the petitioner had been submitted, the trial court dismissed the petition for the “want of proper proof of necessity.” The order of dismissal is before us on certiorari.
Having in contemplation the enlargement of the Vocational and Technical High School of the city, the board of education had preliminary plans therefor prepared by its architects. These were submitted to and approved by the superintendent of public instruction, as required by chapter 13, pt. 2, Act No. 319, Pub. Acts 1927. They call for an addition of about 250 feet to the north of the present building, to be built in two sections. The middle one, now in course of erection, will cost approximately $565,490. The board of education has adopted the policy of “Pay as you go.” They have the money on hand to pay for the addition now nn der construction, and for the additional land needed for the other. The estimated cost of this addition is $354,302. After filing the petition herein, the board purchased one of the parcels sought to be condemned at a cost of $19,300. Two parcels are yet to be acquired; one owned by Miss Campbell, 12 feet in width by 37.5 feet in length, and the other of the same width and 40 feet in length. The north line of the building, when completed according to the plans, will extend to within 4 feet of this land, and there is testimony that the space of 16 feet between it and any building which might be erected on the land owned by Miss Campbell, now vacant, was necessary for light and air and fire protection.
The action of the trial court was based upon the absence of proof that the board had adopted a resolution providing that this addition was to be built “when funds are available for building it.” The board had approved the tentative plans for its construction; had by resolution determined that it deemed it necessary to enlarge the site by acquiring this land; had purchased most of the additional land needed therefor, and we think the jury would have been justified in finding that it intended to raise the additional.money and complete the building as proposed. Under its policy of “Pay as you go,” it could not appropriate money for this proposed addition until it was in the treasury. It had appropriated, and was using, the funds needed for the construction of the middle section. That to the west, as designed by the architect, was needed to make the building a completed whole. A part of it had been purchased and paid for, and, under the provisions of our Constitution (article 13, §§ 1 and 2), which make the jury the judges of the law and the fact on the question of necessity (McDuffee v. Fellows, 157 Mich. 664; Hendershott v. Rogers, 237 Mich. 338), it should have been submitted to them.
The order dismissing the petition is vacated and set aside, and the trial court directed to proceed with the hearing. As the action of the trial court was had on motion of the attorneys for Miss Campbell, costs in this court will be taxed against her.
Wiest, C. J., and Butzel, Clark, Potter, North, and Fead, JJ., concurred. McDonald, J., did not sit. | [
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North, J.
Mr. and Mrs. Synod were adjudged guilty of contempt in the circuit court of Wayne county, and have brought the proceedings here for review by certiorari.
April 30, 1919, the Henry S. Koppin Company entered into a contract for the sale of a parcel of land in the city of Detroit to Mike Synod and Anna Synod, his wife. On February 8, 1922, they assigned their interest as vendees in this contract to Dan Ruian and wife. Mr. and Mrs. Ruian in turn, on the 17th of February, 1922, gave a subcontract to Frank D. Hughes, who later filed a bill in chancery against the Synods and the Ruians, in which bill he sought to establish and confirm the validity of the assignment from the Synods to the Ruians and also to secure other relief. Mr. Hughes was successful in that litigation, and on June 28, 1924, the circuit court adjudged and decreed as follows:
“1. The assignment of the land contract executed by the defendants, Mike Synod and Anna Synod, his wife, on the 8th day of February, 1922, is hereby decreed to be binding upon them and that by virtue of said assignment, the land contract dated February 17th, 1922, all the right, title and interest of the defendants, Mike Synod and Anna Synod, his wife, Dan Ruian and Forsina Ruian, his wife, are vested in the plaintiff, Frank D. Hughes, with full power cmd authority to receive the deed provided in the land contract of April 30th, 1919.
“2. The defendants, Mike Synod and Anna Synod, his wife, Dan Ruian and Forsina Ruian, his wife, do forthwith execute and deliver to the plaintiff, Frank D. Hughes, a quitclaim deed conveying to the said plaintiff all their right, title and interest in and to the property described as,” etc.
The decree also contained the usual provision for filing or recording a certified copy in the event the defendants failed to execute and deliver a quitclaim deed to the plaintiff. Such a certified copy was recorded with the register of deeds of Wayne county August 16, 1924. On June 10, 1926, which was nearly two years after the decree was taken, Mr. and Mrs. Synod obtained a deed of this property from the grantee of the original vendor, hereinafter called the vendor. In February, 1929, Mr. Hughes caused a quitclaim deed of these premises to be prepared and presented to Mr. and Mrs. Synod with a demand that they execute the same. This they refused to do. Because of such refusal contempt proceedings were instituted, in which it was urged by Mr. Hughes that by taking a deed of the property involved from the vendor in the original contract, Mr. and Mrs. Synod had disregarded and in effect had nullified the court’s decree. As noted above, that decree “vested” Mr. Hughes with “full power and authority to receive the deed” from the original vendor; and also ordered Mr. and Mrs. Synod to “forthwith execute and deliver” to Mr. Hughes a quitclaim deed of “all their right, title and interest” in the property covered by the land contract.
In reviewing their conviction of being in contempt, Mr. and Mrs. Synod urge that the decree was fully performed and given effect by the act of Mr. Hughes in causing a certified copy to be recorded, and hence a further or duplicate performance by giving a quitclaim deed could not be required, and their refusal so to do was not contempt of court. We are not much impressed with this claim as a defense; but we refrain from giving it detailed consideration because of a more patent reason for vacating the contempt order.
Synod and wife were decreed to give a quitclaim of “all their right, title and interest” to this property on June 27,1924. At that time their only claim of an interest in the property was that of vendees under a land contract. The court found they then had no interest whatever. But nearly two years later (June 10,1926) through some transaction with the vendor, the details of which are not in this rec ord, Mr. and Mrs. Synod secured a conveyance by deed of the fee of this property. How large or how small a consideration they gave for this after-acquired title is not disclosed. They did not possess it at the time the final decree was entered. In fact, a fair inference from the figures found in the decree is that there then remained unpaid on the original contract price of this property something in excess of $4,000. The rights in this property which Mr. and Mrs. Synod acquired in June, 1926, were not involved or adjudicated in any way at the time this case was heard on the merits; and clearly the Synods should not now be compelled by contempt proceedings to transfer to Mr. Hughes the property rights thus acquired.
We have not overlooked the recital in the decree that Mr. Hughes was “vested * * * with full power and authority to receive the deed provided in the land contract;” but the vendor in the contract was not a party to the suit, and was in no way bound by this provision in the decree, which at most can only be fairly construed to mean that Hughes would be entitled to have the deed to the property when the contract price was paid. We would not be justified in concluding from the indefinite recital in the decree above quoted that the contract price had then been fully paid. On the contrary, as noted, such appears not to have been the fact. Further, that question could not have been definitely adjudicated -without the vendor having been made a party to the suit. If it appeared in this record that at the time Mr. Hughes took his decree against the Synods, the contract price had already been fully paid to the vendor, there would then be force in the contention here made by Mr. Hughes, which is that Mr. and Mrs. Synod should not be permitted by their subsequent acts to nullify the decree entered against them or obstruct its execution. By. subsequently taking a deed of this property under such conditions, they might well be held in contempt because of having resorted to a subterfuge for the purpose of evading the court’s decree (6 B. C. L. p. 503); but the adjudication of contempt cannot be sustained on that theory because the essential facts do not appear in this record.
The order of the lower court finding the respondents guilty of contempt is vacated, and they will have costs of this court against the petitioner, Frank D. Hughes.
"Wxest, C. J., and Butzel, Clark, Potter, Sharpe, and Fead, JJ., concurred. McDonald, J., did not sit. | [
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] |
Clark, J.
Plaintiff, contending that be was engaged to superintend tbe construction of an apartment bouse and to do tbe carpenter work tbereon, and that when the superintendence was one-third done and the carpenter work not yet begun he was discharged and his contract terminated, brought this suit claiming damages $2,600 for work done as superintendent, and $1,550 loss of prospective profits on the carpenter contract, and had verdict and judgment for $2,000. Defendant brings error, urging chiefly that he was entitled to verdict directed in his favor.
The case was for the jury. Plaintiff had positive testimony that he was engaged as superintendent, that he was to have been paid therefor $8,000, that he rendered very considerable service, one-third of the whole, and he had corroborative evidence, including testimony of other witnesses. This is sufficient to sustain the verdict.
A number of" excerpts from the charge are set forth as erroneous, but upon reading the context no reversible error appears. The court in his charge in one instance referred to plaintiff’s claim respecting superintendence as a demand for loss of profits whereas his claim was for compensation for services performed. We think the jury could not have been misled. All the evidence in this regard was directed to the amount and value of services actually performed, not to loss of profits. No other question need be discussed. We find no reversible error.
Judgment affirmed.
Wiest, C. J., and Butzel, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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Butzel, J.
Plaintiff attempted to purchase some lands in Oakland county under an agreement, the terms of which were indefinite and incomplete. We held in Lippman v. Featherston, 247 Mich. 153, that the minds of the parties had never fully met, and the agreement was void. Prior to the litigation, while negotiations were still pending to settle the differences arising out of the incomplete agreement, plaintiff, through his agent and office associate Yer Wiebe, sent for defendants Bostwick and Teets, who were partly instrumental in securing the purchase of the property for plaintiff. Defendant Hunt was plaintiff’s agent in purchasing the lands, and defendants Bostwick and Teets were assisting Hunt. The affidavit of merits of defendant Hunt, hereinafter referred to, shows that defendants Bostwick and Teets were friends of plaintiff and were importuning him for their share of the commission at a time when it looked as if the deal would be consummated. Plaintiff was, therefore, willing to pay defendants Bostwick and Teets each one-third of the entire commission in accordance with the arrangement between all three defendants. Plaintiff was in Europe when Yer Wiebe paid to defendants Bostwick and Teets each the sum of $972.36. Yer Wiebe exacted from each of them a receipt in which the following words appeared:
“In event deal referred to in receipt signed by Malcolm Hunt is not consummated, this money is to be returned to Harry J. Lippman or E. W. Yer Wiebe by P. A. Teets and James W. Bostwick.
“(Signed) P. A. Teets,
“James Bostwick.”
Defendant Hunt, as the main agent, was also asked to receipt for the $1,944.72 thus paid to the other two defendants. Hunt did not receive or claim any part of his one-third of the total commission, as he was willing to wait until the deal was consum mated. Hunt, however, insisted before delivering the receipt that the following words be written in the receipt under his signature:
“In re the event the deal is not consummated there shall be no action taken by Harry J. Lippman or W. W. Yer Wiebe or their heirs or assigns to recover the above $1,944.72, now paid to Malcolm Hunt.”
These words appear on the receipt under defendant Hunt’s signature, but a line has been run through them, so that it would appear that the words were deleted.
After the case of Lippman v. Featherston, supra, had been decided, and it was definitely determined that no sale had taken place, plaintiff brought suit against all three defendants to recover the $1,944.72 paid defendants Teets and Bostwick. Each of the defendants pleaded the general issue. Plaintiff thereupon made a motion in proper form for a summary judgment. Each of the defendants filed an affidavit of merits. Defendant Hunt in his affidavit swore that he was unwilling to give the receipt unless the underwriting under his signature be inserted in the receipt, and that said underwriting was deleted without his knowledge or consent and at some time subsequent to the delivery of the receipt. This raised a question of fact for the jury. The other defendants also set forth in their affidavits of merit other defenses including the fact that the face of plaintiff’s pleadings plainly showed that in no event could he recover a judgment in the amount of $1,944.72 against either of them. All three affidavits of merit were in proper form.
The judge denied plaintiff’s motion for a summary judgment, and further permitted each of the defendants to set forth, their defenses in notices of special defense which were duly filed. Plaintiff is reviewing the order of the circuit judge by writ of error. The action of the circuit judge in denying the motion for summary judgment and permitting the defendants to file notices of their special defenses was proper. When questions of fact are raised in affidavits of merits filed in answer to a motion for summary judgment, it is proper for a circuit judge to deny the motion and leave the questions of fact to a jury.
If this record entitled the appellant to any relief, it should have been obtained by mandamus, not by writ of error. We have considered the question presented as here on application'for mandamus.
The writ is denied, with costs to the appellees.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
November 1,1928, plaintiffs filed a bill of complaint, later amended, against defendants for an accounting with defendants Henry Stark and Flora Stark, his wife, Andrew Bentley and Dorothy A. Bentley, his wife, to set aside a warranty deed from plaintiffs to defendant Henry Stark, and a deed from Henry Stark and Flora Stark, his wife, to Andrew Bentley and Dorothy Alice Bentley, his wife, for a conveyance from defendants Paul Liogre and wife, to compel delivery by defendants Stark and Bentley to plaintiffs of a quitclaim deed from Paul Liogre and Adrienne Liogre, his wife, held by defendants Stark and Bentley; and to declare a deed executed by plaintiffs to defendant Henry Stark to be a mortgage. There was decree for plaintiffs and defendants appeal.
A motion to dismiss defendants’ appeal was filed by plaintiffs December 31, 1929, because more than 20 days had elapsed before a second order by the circuit court extending the time 60 days in which to perfect the appeal was procured, and the trial court it is claimed thereby lost jurisdiction to extend the time. It appears the claim of appeal was filed, the fee paid, and a transcript of the stenographer’s minutes procured within 20 days after entry of the decree sought to be appealed from. An order extending the time 60 days further was presented to the trial court within 20 days after decree below. The trial court refused to sign the order. Had defendants brought mandamus this court probably would have issued an order directing the trial court' to sign the order (Circuit Court Rule No. 66). Before this was done the trial court signed the order and the entire record is here. Plaintiffs’ motion, under the facts, will be overruled, and the case disposed of on the merits.
Plaintiffs were the owners of property in Detroit described in the bill of complaint. On this property was a combined store and office building. Defendants Henry Stark and Paul Bentley had their offices therein. Plaintiff and wife are of Belgian descent and not well versed in the use of English and unable to readily read that language. Plaintiffs resided on a farm near Utica, where Mr. Crombez was engaged in the gravel business. He did not give as careful and forceful attention to his Detroit property and the collection of the rents from tenants as he should have done. There was a mortgage on the Detroit real estate of $24,000 and a second mortgage of $12,000. Some of his tenants were in default and some of the stores in the building vacant. The building was not being well maintained. The $24,000 mortgage was about to be foreclosed. Plaintiff was unable to refinance the property, -and the buildings were out of repair. Plaintiffs claim that, at the defendant Henry Stark’s suggestion, after Stark had attempted to assist plaintiff Jules Crombez in securing a loan and was unable to do so, they deeded the property to Henry Stark to enable him to superintend the repairs to be made thereto and remortgage the premises; that subsequently, the defendant Henry Stark and wife deeded to the defendants Bentley and wife an interest in the property; that the defendant Henry Stark went on and supervised the repair of the building; the defendants Stark and Bentley advancing substantial sums of money to pay for labor and materials; that the plaintiff Jules Crombez did the excavating under the building, furnished the sand and gravel and some other material, and worked on the building until its completion. It is the plaintiffs’ claim the deed to defendant Henry Stark was given as security merely, and by Stark it was an absolute conveyance made because plaintiff could not refinance, and in consideration of tbe defendant Stark agreeing to protect plaintiffs from a deficiency decree on the foreclosure of the mortgage on the premises. The testimony of the parties is in direct conflict. The defendant Henry Stark made an application, in writing, for a loan to the Guardian Trust Company dated June 25, 1928, in which.he represented the plaintiff Jules Crombez was the owner of the premises, and that the buildings thereon were worth $41,930, the land $51,200, and the garage thereon $1,200, a total of $94,330 in all. One Ross Henderson appraised this property for the trust company and found the building to be worth $39,746, and the value of the land and building $80,321, and recommended to the trust company a loan thereon of $40,000. Dr. Nathan, who held a second mortgage on the premises, offered $69,000 for the property. George A. Oralman, a real estate appraiser with 17 years’ experience in Detroit, appraised the building at $33,032 and the land $51,350. There were appraisals of the property, one by Mr. Munro of $65,000, in 1925, and one by Mr. Keyes, in 1925, of $54,000. The defendant Henry Stark himself placed the present value of the property at $80,000, the land at $39,000 and the building at $41,000. The testimony shows that after the deed from the plaintiffs to Stark was made, Stark discovered, in attempting to finance the property, there existed a quitclaim deed from plaintiffs to the defendant Paul Liogre. It is admitted this quitclaim deed was given as security, and it was sought to release this cloud upon the title. The consideration paid to Liogre for the quitclaim deed, which was procured by the defendant Henry Stark, was paid jointly by the plaintiff and by tbe defendant Henry Stark, and tbe deed from Li ogre and wife was taken in Jules Crombez’ name and delivered to the defendant Henry Stark.
Tbe defendant Henry Stark, accompanied by his attorney, went to plaintiffs’ home near Utica at night and procured tbe deed in dispute. Tbe plaintiffs claim this deed was given in pursuance of a previous understanding, .in accordance with tbe plaintiffs ’ claim. One Vandierdonck represented tbe defendant Paul Liogre at tbe time tbe plaintiff Jules Crombez and tbe defendant Henry Stark were seeking to get a quitclaim deed, and it is Vandierdonck’s testimony that tbe defendant Henry Stark told him be was going to look after tbe remodeling of tbe building when he would be able to get a mortgage placed on tbe property which would take care of tbe existing incumbrances and tbe repairs so everyone would get their money. This testimony is corroborated by other witnesses.
It is conceded that Dr. Stark was on tbe job a greater part of tbe time; that both be and plaintiff Jules Crombez put in long hours in repairing and remodeling tbe building; that about tbe time tbe building was completed a settlement was sought, and that, at that time, Dr. Stark stated what be wanted to get out of tbe property was tbe money be and tbe defendant Andrew Bentley bad invested therein, together with compensation for their services.
The trial court’s decree bolding the deed in question to be a mortgage, is sustained by ample evidence, and, we think, protects tbe rights of defendants Bentley and Stark, who are directed to be repaid for the money found to be due to them, together with interest thereon, and $3,000 as compensation for their services. It further directs tbe defendants Stark and Bentley, who have possession of the premises, to account to plaintiffs for the rents, incomes, and profits. We think this substantially correct, and the decree of the trial court is affirmed, with costs.
Wiest, C. J., and Btjtzel, Clark, Sharpe, Fead, and North, JJ., concurred. McDonald, J., did not sit. | [
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] |
Sharpe, J.
In the spring of 1925 the defendants were the owners and subdividers “of certain real estate near Detroit, in the county of Wayne. They had in their employ as a salesman one Russell Carrier. He had formerly been employed by Joe and Louise Schiappicasse as a chauffeur. Soon after entering the employ of the defendants, Carrier induced Mrs. Schiappicasse to purchase a lot in the subdivision. She paid him $20, and instructed him to have the name of her brother, Jerome Henley, inserted in the contract as purchaser, as she was buying it for him. On March 30th Carrier prepared a preliminary purchase agreement covering lot 293, and had his wife sign the name “ Jerome Henley” thereto, and turned this agreement and the $20 deposit into the office of the defendants, the deposit being credited to Henley on defendants’ books. About a week later, Mrs. Schiappicasse told Carrier that she did not want to complete the purchase, and he said “it would be all right. ’ ’ She did not ask for the return of the ' deposit, nor was it made to her. No entry was made in defendants’ books relative thereto.
In the month of May following, Carrier’s brother introduced plaintiff to him as. a prospective purchaser of a lot in the subdivision. The three of them afterwards visited the property, and Carrier then told plaintiff that a down payment of $20 had been made on lot 293, and that he could give plaintiff the advantage of it by transferring the deal to him. Later, plaintiff decided to make the purchase. Carrier, after consulting with T. Gr. Harris, the sales manager under whom he worked, prepared a land contract for the sale of lot 293 by defendants to Jerome Henley, dated May 7, 1925, for the sum of $1,000, of which $200 was acknowledged to he paid and the balance in monthly instalments, secured the signature of defendants thereto, and himself signed the name of Jerome Henley as purchaser. He attached an assignment of the contract from Henley to the plaintiff, and signed Henley’s name to it. To this was appended the following, signed by plaintiff: “I, Arthur Leslie, accept this transfer and
agree to carry out all provisions named in said contract.” The contract provided:
“That no sale, transfer, assignment or pledge of this contract shall he in any manner binding upon the seller unless either said Charles J. Kennedy or Charles A. Kandt first consents thereto in writing.”
To comply therewith, Carrier procured the signature of Charles J. Kennedy to an indorsement reading: “The transfer of this contract is accepted by the undersigned. ’ ’
Plaintiff borrowed $180 from Carrier’s brother, and paid it to Carrier. This, with the $20 paid by Mrs. Schiappicasse, made up the down payment required, and the contract with its indorsements was turned over to plaintiff. He made additional payments thereon, amounting to $318.16. On April 20, 1928, he was in default in the sum of $206.79, and defendants caused a notice to he served on him that unless this amount was paid on or before April 30, 1928, forfeiture would be declared. He made no further payments, and on May 31, 1928, a notice of forfeiture was served.
Plaintiff had theretofore complained to defendants that lot 289, cornering on an alley, had been pointed out to him as the lot he had purchased, and on August 11th he notified defendants that for this reason he elected to rescind, tendered an assignment of his contract, and demanded payment of the moneys paid by him on the contract.
On August 15th defendants began proceedings before a circuit court commissioner to obtain possession of the lot, pending the disposition of which plaintiff filed the bill of complaint herein, praying for rescission and a return of the moneys paid. In a cross-bill defendants seek foreclosure of the contract.
The trial court found that plaintiff had failed to establish his claim of misrepresentation in the location of the lot, but held that Carrier had committed forgery in signing Henley’s name to the contract and assignment; that the defendants, on discovery of it, could have set it aside, and that “If, upon discovery, one party could repudiate it, why not the other?” and granted plaintiff the relief prayed for in his bill. Prom the decree entered so adjudging, the defendants have appealed.
It is elementary that an intent to defraud is the gist of the offense of forgery. Prine v. Singer Sewing Machine Co., 176 Mich. 300. The facts, and we have stated them at some length, fail to disclose any such intent on the part of Carrier. He had no authority and no legal right to sign Henley’s name to the contract and assignment. But he personally gained nothing by doing so. His only purpose was to secure'to "plaintiff on his down payment the credit of the $20 paid by Mrs. Schiappicasse. The only person benefited .thereby was the plaintiff. The defendants have ratified such act, and by their consent, indorsed upon the assignment, have secured to plaintiff an enforceable contract; one which they have been at all times ready to perform and on which plaintiff is credited with more than $500 of the purchase price. We see no. reason why he should be permitted in a court of equity to rescind the contract for this reason.
We are in agreement with the trial court in holding that the claim of misrepresentation as to the lot intended to be purchased by plaintiff is not supported by a preponderance of the evidence. It will serve no useful purpose to set forth the testimony bearing upon it.
The decree is reversed, and one will be entered here dismissing plaintiff’s bill .and granting the defendants the relief prayed for in their cross-bill. There will be remand to the circuit court for such further proceedings thereunder as may be necessary. The defendants will recover costs.
Wiest, C. J., and Butzel, Clark, Potter, North, and Fead, JJ., concurred. McDonald, J., 'did not sit. | [
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Butzel, J.
Cornelius Stelionwer, as administrator of the estate of Teunis Stehouwer, deceased, brought this suit under the survival act (3 Comp. Laws 1915, § 12383), against Mary Lewis, of Sturgis, Michigan. Defendant Max Lewis, her husband, was the owner of a car which she was driving with his knowledge and consent. Under the law he would be, therefore, jointly liable with his wife in the event that she should be liable for negligence in causing the death of plaintiff’s intestate.
Teunis was a lad of ten years of age. About 4:30 on the afternoon of the 7th day of June, 1928, he was playing on the north side of Congress street in the city of Sturgis, Michigan. The street at the point where the accident took place is paved with asphalt with a two-foot cement gutter along the side, and abuts a grass terrace. There is no sidewhlk on the north side of the street. The block in which the accident took place adjoins the city limits.
Teunis and another lad were each playing with a “scooter,” a mechanical toy device consisting of a board supported on a front and rear wheel, with a rod attached leading from the front wheel to a steering bar or wheel. It is propelled by partially bearing the boy’s weight thereon, he standing with one foot on the board and using the other foot to induce motion by periodically touching the ground or pavement and thereby impelling the scooter.
There is much conflict, as well as lack, of testimony as to what actually took place. The boy was normal in every way. It was the claim of plaintiff that defendant Mary Lewis was driving the car at an unlawful, unreasonable, and excessive rate of speed, and that she did not blow the horn or give any other warning, although she had ample opportunity to see the boy; that she did not drive in a straight direction, but turned to the side of the road so that the car ran into the boy, throwing him into the air, so that he struck the side of the car. He suffered a fracture of his skull and died at the hospital 15 hours later.
Plaintiff produced, a number of witnesses who supported these claims. Defendant, on the other hand, also produced a number of witnesses to show that she was driving carefully and slowly; that the boy was fixing his scooter in the gutter and suddenly and unexpectedly ran with his scooter into the side of the car with such force that the handle of the door was knocked off; that there was no negligence on her part. She produced witnesses, including the chief of police of Sturgis and a corporal of the State police, who examined the car immediately after the accident and who testified that there was no scratch of any kind on the front of the car. The car was produced at the trial. There was a scratch on the right bumper. The chief of police and the corporal of the State police, among others, swore that they had not seen the scratch immediately after the accident, although they examined the car very carefully. It was the claim of defendant that it could be seen that the scratch was a fresh one that had been made in some manner just prior .to the trial of the case, approximately six months after the accident. The jury was able to examine the scratch on the bumper, as well as the broken handle and a mark on the side of the car, and a dent on the right rear fender.
The judge’s charge to the jury was so long that it could easily lead into difficulties. No error is claimed on account of its length. The charge takes up 23 pages of the printed record, consisting of 194 pages. The jury brought in a verdict of no cause of action.
Plaintiff has appealed, and sets forth a number of assignments of error, many of which are inconsequential and almost frivolous, so that we need not pay any attention to them. Some are similar to those herein discussed by us. They could in no way have affected the jury’s verdict. The assignments of. error that may be of importance we shall discuss seriatim.
(a) Error is claimed in that, when plaintiff’s witness, Jeanette Trobridge, a 17-year old girl, testified as to the boy’s condition immediately after the accident, and stated: “I did not see any of the brain until after we had put a cloth across the wound,” the court asked the question, “You are not a physician?” Witness’ reply was: “Not much.” No objection was made at the trial to the question and answer. Plaintiff claims that the question had a tendency to place the witness in a ridiculous light before the jury. What is blood and what is brain matter oozing through matted hair from a wound, as witness was testifying to, is more readily ascertainable by a physician than by a layman. Witness continued to give such intelligent answers to further questions that were put to her in regard to the same subject, that the jury must have been well impressed with her testimony. We do not believe there was any prejudicial error.
(b) Error is claimed in that defendant’s witness, Maude Lee Burg, was permitted to testify as to the rate of speed defendant’s car was going at the time of the accident, because she was not an expert, and further, because she testified as to the rate it was going when it passed in front of her house, about 200 feet from the place of the accident. Witness never had driven an automobile, but had ridden in one very often ever since machines had been used. She stated that she frequently watched the speedometers,- but admitted her inability to tell the exact mileage. She also described the distance the car was from the place of the accident when she saw it pass her home. She stated, however, that she could tell whether a car was driven slowly or fast, and that she could only estimate the speed. This court has frequently held that a witness need not qualify as an expert in order to testify to matters one learns through ordinary observation, such as the rate of speed at which a vehicle is going, provided a witness is fully interrogated as to the knowledge upon which his judgment is based, so that a jury can determine what weight should be given to his statements. Luttenton v. Railway Co., 209 Mich. 20, 28; Jones v. Taxicab & Transfer Co., 218 Mich. 673, 675.
(c) Defendant Max Lewis was asked by his counsel whether he carried any insurance on his ear. Exception was taken to this question. Upon attention being called to the fact that on the voir dire, members of the jury were asked by plaintiff’s counsel whether they were interested in insurance companies, the court permitted the question to be asked. The defendant answered, “No.” The bringing up of the question of insurance in a negligence case is a dangerous practice and can easily lead to error. A jury too frequently is apt to increase the amount of damages or be otherwise influenced. Its verdict might be affected if it knows that the defendant has through the payment of a premium obligated an insurance company to pay any damages caused by defendant. On the other hand, it may occasionally happen that a juryman is interested in an insurance company, which may thus be the real defendant in the case, although its name does not appear in the case. Obviously, such a person would be disqualified as a juror. The New York court of appeals, as stated in Holman v. Cole, 242 Mich. 402, 407, pointed out one way in which it could be ascertained whether a venireman held stock in an insurance company. The question is too frequently asked so as to give the jury an impression that there was insurance. The question leads into difficulties and frequently reversible error. We, however, are only concerned with the question asked by defendant’s own counsel. Plaintiff’s counsel obviously can not complain of the question he asked on the voir dire. The plaintiff having injected the question of insurance into the case, the defendant had a right in good faith to show that he carried no insurance. When the question of insurance is not brought into the case for the purpose of influencing a jury thereby, there is no reversible error. Sutzer v. Allen, 236 Mich. 1. The question hangs upon good faith of counsel. Oliver v. Ashworth, 239 Mich. 53. Surely defendant’s counsel acted in good faith in rebutting any inference that might have arisen through the voir dire examination.
.(d) In the charge of the court to the jury, he made the following statements:
“The test here is not what a reasonably prudent man of mature years would have exercised, but what a reasonably prudent youth of the age of ten years might have done under like circumstances. In other words, in determining what care Teunis should have used it will be necessary for you to keep in mind his age, measuring him by that standard rather than by the standard of a full aged man or woman of mature years. * * # Fow, upon the question of contributory negligence, this boy, being of the age of ten years, as I have defined it here at the time of the accident in question — Teunis was then ten years of age as shown by the testimony; that he was possessed of the intelligence as shown by the evidence bearing upon that question, I further charge you that the law required him in the operation of his shooter [scooter] and in going upon the highway, to come out in the street with it in the way that he did, that he must make use of his faculties, his hearing, his eyesight when the injury occurred as any ordinarily prudent boy of the age of ten years and intelligence and experience as shown here by the testimony, and that if he failed to make such use of his senses, hearing, eyesight, and has a knowledge of affairs and things as shown by the testimony, if he failed to do so, he is guilty of contributory negligence so he cannot recover, or his estate.”
We believe there is no error in this charge. Counsel for plaintiff claims that this is contrary to the spirit of Michigan decisions generally, and cites as authority Zylstra v. Graham, 244 Mich. 319. In the case just cited, the defendant drove his car at an admitted rate of 15 miles an hour, without sounding his horn. There was testimony that his speed was around 25 miles an hour, and there were automobiles parked on both sides of a street crowded with people who were attending a school pageant. The boy was only six years of age, and the court held, in view of the tender years of the boy, it could, not be held that he was guilty of contributory negligence and the case should go to the jury. It was further held in Thornton v. Ionia Free Fair Ass’n, 229 Mich. 1, a child of seven years is not presumed to be incapable of contributory negligence due to assumed lack of experience, discretion, and capacity to recognize and understand danger; age alone not being the conclusive test, but that experience and capacity are also to be considered.
In the present case, the boy was ten years of age. While eternal vigilance and extreme care might properly be exercised by drivers of automobiles, particularly when driving past children who are playing in or near the street, nevertheless, this is not the duty imposed by law. If a person drives along a city street, and a boy ten years of age suddenly and unexpectedly rushes out so that he is hit by an automobile, the question is properly submitted to the jury as to whether he has the age, maturity, or capability and intelligence to know the character of the traffic in the streets and the danger from automobiles. We believe the judge’s charge was correct.
(e) Error is claimed on account of the statement made by the trial court in its charge, as follows:
“I further charge you, members of the jury, that as a matter of law, that if this injury and accident was due to the sudden and unanticipated and unforeseen act of this child, and the defendant did not know, or did not have reason to anticipate, that the decedent was going to run into the side of the automobile, the plaintiff in this event cannot recover.”
Were this sentence taken by itself, without any reference to the entire charge, we might give the claim some consideration. The charge was unduly long. Notwithstanding the fact that 'it was necessary to charge the jury in regard to mortality tables, expectancy of life, the question of contributory negligence on the part of the ten-year old boy, etc., the charge could have been shortened very materially. If, however, the charge is taken as a whole, we do not find any error in the excerpt quoted, or in others of a similar nature, which plaintiff contends constitute error.
The theory of the plaintiff was that defendant Mary Lewis had run into the boy. The theory of the defendant was that the boy with his scooter suddenly and unexpectedly ran into the side of the car. The record leaves some doubt as to the exact manner in which the accident did happen. The condition of the car, with the handle of the door knocked off, a dent on the right rear fender, and with a mark on the side of the car near the handle, and the absence of any marks on the front of the car except the disputed scratch on the bumper, would all tend to support defendant’s theory. Plaintiff did not, by a fair preponderance of the testimony, show any liability on the part of the defendant. The jury so held, and, from the record, we believe the verdict was fully justified. The judge in his charge stated the claims of the respective parties and distinctly at the start said:
“I am stating this not as facts but as claimed facts, and it is for the jury to determine upon the merits of the claims presented by the parties.”
He presented all of plaintiff’s claims, including the claim that defendant Mary Lewis ran into plaintiff’s intestate with her car. The other assignments of error are either so similar to the ones hereinbefore discussed, or are so trivial, unimportant, and unprejudicial, that it is unnecessary to give them further attention.
The judgment in favor of the defendants is affirmed, with costs 'to defendants.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, J.
Plaintiff has a 99-year lease of premises owned by defendant, upon which is a theatre building. Plaintiff claims the right under the lease to demolish the building, erect a new one, and use the latter for other than theatre purposes. Upon discussion of the matter with defendant, the latter denied plaintiff’s construction of the lease, and threatened to forfeit it if plaintiff commenced destruction of the building or used it otherwise than for a theatre. Plaintiff alleges that it cannot operate the building for theatre purposes without great loss, and has already lost an opportunity for profitable sublease because of defendant’s position. It brought this action under Act No. 36, Pub. Acts 1929, the declaratory judgment law, to have its rights in this respect determined, and prayed for an injunction restraining defendant from interfering with destruction of. the building or attempting to forfeit the lease. The bill states a cause of action under the act, and, upon motion to dismiss, the court held the bill well laid and defendant has appealed.
The question- is upon the constitutionality of the act.
A former declaratory judgment statute, Act No. 150, Pub. Acts 1919, was held unconstitutional by a majority of this court, Mr. Justice Fellows writing the prevailing opinion, and Mr. Justice Sharpe fil ing in dissent. Anway v. Railway Co., 211 Mich. 592 (12 A. L. R. 26). This was a pioneer case in this country, the discussion was exhaustive, and, as the report is readily obtainable, we need not retread the ground.
The major part of Mr. Justice Fellows’ opinion was founded upon the construction of the statute, that it provided for the determination of “moot cases,” the rendition of “advisory opinions,” and the giving of “advice.”
“In short, it requires that the time of the court shall be taken, not in the determination of actual controversies where rights have been invaded and wrongs have been done, but in the giving of advice to all who may seek it.”
The present statute, while substantially identical with the former act in other respects, eliminates the possibility of its being so construed. By its language it is brought into general harmony with the interpretation given the former act by Mr. Justice Sharpe. It provides in section 1 that it applies only to “cases of actual controversy,” and contains a paragraph which has no counterpart in the former act:
“Sec. 6. Declaration of rights made under this act shall have the effect of final judgments.”
That the present act does not constitute a court a fountain of legal advice to fill the cups of loitering wayfarers is also amply sustained by judicial opinion. The courts of Scotland have been rendering declaratory judgments for over 300 years. In England, they hav'e been in vogue since 1852. They are part of judicial systems in Canada. About contemporaneous with or since the Amo ay Case, 17 or more American States have adopted identical or similar' laws. Many of the courts have spoken upon them. It is of interest to note some of the adjudged requirements of a proper case for declaratory relief, especially as approved by American courts:
1. The exercise of the jurisdiction is discretionary with the court, and where no consequential relief is sought, it will be exercised with great care, extreme caution, and only where there are special circumstances demanding it. Kariher’s Petition, 284 Pa. 455 (131 Atl. 265).
2. There must be an actual and bona fide controversy as to which the judgment will be res adjudicada. Such a case requires that all the interested parties shall be before the court. Holt v. Custer County, 75 Mont. 328 (243 Pac. 811); Stinson v. Graham (Tex. Civ. App.), 286 S. W. 264; West v. City of Wichita, 118 Kan. 265 (234 Pac. 978); Revis v. Daugherty, 215 Ky. 823 (287 S. W. 28); Patterson’s Ex’rs v. Patterson, 144 Va. 113 (131 S. E. 217); Tanner v. Boynton Lumber Co., 98 N. J. Eq. 85 (129 Atl. 617); Burton v. Durham Realty & Ins. Co., 188 N. C. 473 (125 S. E. 3); Ezzell v. Exall, 207 Ky. 615 (269 S. W. 752); Shearer v. Backer, 207 Ky. 455 (269 S. W. 543); Kelly v. Jackson, 206 Ky. 815 (268 S. W. 539).
3. The court will not decide as to future rights but will wait until the event has happened, unless special considerations otherwise require. Tanner v. Boynton Lumber Co., supra; In re Gooding’s Will, 208 N. Y. Supp. 793; Kariher’s Petition, supra.
4. A declaration will not be made in a matter where, the interest of the plaintiff is merely contingent upon the happening of some event. Hodges v. Hamblen County, 152 Tenn. 395 (277 S. W.- 901).
5. Where the court is asked for no consequential relief, it will not entertain the case if the effect is to interfere with the rights of a party to appeal to a court having jurisdiction of the particular matter by statute. Kariher’s Petition, supra; Wight v. Board of Education, 99 N. J. Eq. 843 (133 Atl. 387); Shearer v. Backer, supra; State v. Bd. of Co. Comrs. of Wyandotte Co., 117 Kan. 151 (230 Pac. 531); Proctor v. Avondale Heights Co., 200 Ky. 447 (255 S. W. 81); List’s Estate, 283 Pa. 255 (129 Atl. 64); Hagan v. Dungannon Lumber Co., 145 Va. 568 (134 S. E. 570).
6. Ordinarily the court will refuse a declaration which can be made only after a judicial investigation of disputed facts, especially where the disputed questions of fact will be the subject of judicial investigation in a regular action. Newsum v. Interstate Realty Co., 152 Tenn. 302 (278 S. W. 56).
In addition to the foregoing, the British courts have another rule which does not seem to have been passed upon in this country:
7. A declaration cannot be had in respect of a cause of action which, it is merely apprehended or feared, defendant may assert, where he has made no claim against the plaintiff thereon, although he refuses to waive any rights thereunder.
These rules and citations are taken from the notes in 12 A. L. R. 52, 19 A. L. R. 1124, and 50 A. L. R. 42, which digest a large number of illustrative cases. Their listing here is not to be taken as advance notice of the future position of this court, although their soundness is appealing, and, so far as they involve the construction of similar statutes, the decisions are entitled to the usual respect and consideration. They are set out particulárly to indicate the character of judicial support to the construction of our statute, evident from its language, that a case for declaratory judgment must rest upon an actual controversy, be formally presented with proper parties, and is not a substitute for other regular actions.
Upon the basis that the proceedings are confined to actual controversies, declaratory judgment laws have been held constitutional in the following cases: State v. Grove, 109 Kan. 619 (201 Pac. 82, 19 A. L. R. 1116); Kariher’s Petition, supra; Miller v. Miller, 149 Tenn. 463 (261 S. W. 965); Braman v. Babcock, 98 Conn. 549 (120 Atl. 150); Patterson’s Ex’rs v. Patterson, supra; Blakeslee v. Wilson, 190 Cal. 479 (213 Pac. 495); McCrory Stores Corp. v. Braunstein, 102 N. J. L. 590 (134 Atl. 752); Board of Education v. VanZandt, 195 N. Y. Supp. 297.
In all except the last two the Anway Case was cited and discussed. No court except our own has held a declaratory judgment law unconstitutional.
Defendant, however, insists that the act, in providing for proceedings before rights have been invaded or a wrong committed or threatened, is unconstitutional as not covering the exercise of judicial power, under the authority of Liberty Warehouse Co. v. Grannis, 273 U. S. 70 (47 Sup. Ct. 282), and Willing v. Chicago Auditorium Ass’n, 277 U. S. 274 (48 Sup. Ct. 507), in which the court held that a proceeding for a declaratory judgment is not a “case” or “controversy” to which the judicial power of the Federal judiciary can attach. These cases did not pass upon the constitutionality of an act. In the latter case the facts were substantially identical with those at bar, except in the respect that there was merely a casual disagreement upon the legal right to tear down the building instead of definite negotiations to that end and actual controversy over the right. After eliminating a number of cases as distinguishable, among them Muskrat v. United States, 219 U. S. 346 (31 Sup. Ct. 250), relied upon and quoted at length by Mr. Justice Fellows, the court planted its ruling on one ground:
“But still the proceeding is not a case or controversy within the meaning of article 3 of the Constitution. The fact that the plaintiff’s desires are thwarted by its own doubts, or by the fears of others, does not confer a cause of action. No defendant has wronged the plaintiff or has threatened to do so. Resort to equity to remove such doubts is a proceeding which was unknown to either English or American courts at the time of the adoption of the Constitution and for more than half a century thereafter.” Willing v. Chicago Auditorium Ass’n, supra.
This historical argument, however much it may circumscribe a government of granted powers, is not applicable to a sovereign State whose inherent powers enable it to attempt solution of any social problem- arising from current conditions, and which may adventure into experiment for the public welfare.
While the legislature obtains legislative power and the courts receive judicial power by grant'in the State Constitution, the whole of such power reposing in the sovereignty is granted to those bodies except as it may be restricted in the same instrument. There is no constitutional restriction on the power of the legislature to recognize the complexity of modern affairs and to provide for the settlement of controversies between citizens without the necessity of one committing an illegal act or wronging or threatening to wrong the other. There is no constitutional expression of limitation upon the power of the court to decide such disputes. In the Arm ay Case, Mr. Justice Sharpe collected the definitions of judicial power and they need not be repeated here. When an actual controversy exists between parties, it is submitted in formal proceedings to a court, the decision of the court is binding upon the parties and their privies and is res adjudicata of the issue in any other proceeding in court in which it may be involved, what else can the decision be but the exercise of judicial power?
“Turning to the function or duty imposed by our declaratory judgment act upon the superior court as set forth above, could it be claimed with any pretense of reason, that the function was legislative or executive? The answer is obvious. We must, then, conclude that the function is judicial, or that it falls outside of the three functions described as legislative, executive, or judicial. It would be a travesty to hold that this method of remedial justice could find no place in our system of government unless a place was made for it by an amendment to the Constitution.” Braman v. Babcock, supra.
The further claim that a declaratory judgment.is not an exercise of judicial power because no consequential relief is granted and no execution or other process of enforcement issues thereon is so fully treated in the opinion of Mr. Justice Sharpe in the Amo ay Case that little need be added.
In many cases of ordinary actions the mere determination of rights by judgment or decree ends the controversy. An execution or order of enforcement is issued at the instance of a party only where such determination does not suffice. The court itself does not, of its own motion, enforce its judgments. The situation is little different as to a declaratory judgment. Like an ordinary one, it is self-enforcing to the extent of being final and constituting res adjudicata. Section 3 of the act provides that if further relief be necessary or proper, it may be had on application of a party. Whether consequential relief be granted upon the original or a subsequent petition, and whether an order of enforcement be had of course of on application, go merely to the practice, not to the power of the court. In many equity proceedings the decree is merely declaratory, and enforcement is had only on subsequent application for an order in contempt or otherwise. Moreover,
“Every court has inherent power to enforce its judgments and decrees, and to make such orders and issue such process as may be necessary to render them effective, and this power is not affected by the fact that the decree is final.” 34 C. J. p. 737.
So the court has the authority to grant the relief necessary to end the controversy and to enforce its judgment by appropriate means where compulsion is necessary, it would seem sufficient. No reasonable test of judicial power can demand that the judgment must carry unwarranted or unnecessary relief or process of enforcement.
“To hold that the judicial power of this State is confined to the consideration of cases where consequential relief only is sought, would be enforcing a limitation upon the judicial power in accord with custom rather than with reason and logic.” Bra-man v. Babcock, supra.
“When adverse litigants are present in court and there is a real controversy between them, a final decision rendered in any form of proceeding of which the court has jurisdiction is a judgment in the proper sense of that term, and the giving of it is a judicial function, whether or not execution may follow thereon. For instance, the ordinary judgment for defendant is merely a declaration that, on the evidence offered, the plaintiff has no case; though as a matter of fact, it may be entered in an action or proceeding which was instituted by the plaintiff with the idea, or hope, of securing an executory judgment; but, like all other declaratory judgments, a judgment for defendant has the effect of making the issues at stake res judicata, and, in this important sense, such judgments are forever enforceable, —which, more than the fact that execution may or may not be issued thereon, gives them the character of judgments.” Kariher’s Petition, supra.
Most of the courts which have passed upon the constitutionality of the law refer to State v. Grove, supra, from which we quote:
“It is often said that a cause of action arises only upon the breach of a duty — the invasion of a right. This, however, is merely the announcement of a general rule of practice subject to possible exceptions and to legislative change. Actions to quiet title and to construe wills are recognized methods of invoking judicial action which do not originate in the actual commission of a wrong nor terminate in a judgment inflicting a penalty, granting compensation or injunction, or otherwise giving ‘consequential relief,’ the declaration of rights being all that is necessary to fit the requirements of the case. The decree in an action to quiet title is sometimes so drawn as to order the setting aside or cancellation of a deed. A declaration that the instrument is void and without effect amounts to the same thing. The judgment does not change the condition of the title but simply declares where it is vested. It gives the only relief that is necessary to settle the controversy— the determination of the ownership of the property. "Why the legislature cannot authorize similar procedure in like situations to meet like needs is not apparent. It is hardly conceivable that any fundamental principle of our government, beyond legislative control, prevents two disputants, each of whom sincerely believes in the rightfulness of his own claim, but each of whom wishes to abide by the law whatever it may be determined to be, from obtaining an adjudication of their controversy in the courts without one or the other first doing some thing that is illegal (in the case of the present defendant criminal) if he is mistaken in his view of the law.”
In view of the difference in the statutes, the An-way Case is not determinative, and we think the present act is constitutional.
The order denying the motion to dismiss is affirmed, without costs, and the case is remanded for further proceedings.
Butzel, Clark, Potter, Sharpe, and North, JJ., concurred with Fead, J. | [
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Potter, J.
March 30, 1907, Carl Moch owned 40 acres of land in Muskegon county. He died September 30, 1907, leaving surviving him his widow, Josephine C. Moch, seven sons, Albert, Michael, Stanley, John, Matthew, Nicholas, and Frank, and two daughters, Marie Schuler and Theresa M. Long. His estate was probated, and, December 23, 1907, was assigned by the administrator one-third to the widow and two-thirds to the nine children, giving them two twenty-sevenths each. January 5, 1928, Josephine C. Moch and John Moch entered into an agreement with the plaintiff Hagan as follows:
“Received one dollar cash on Lease.
“Muskegon, Mich.,
“Jan. 5, 1928.
“This agreement made this day, January 5, 1928, between Mrs. J. Moch and John Moch that a lease will be given on their own property of forty acres in North Muskegon, Mich., for the purpose of drilling for oil or gas as soon as possible at a bonus of one dollar per acre to be paid .when lease is given. Drilling to be commenced inside of six months from date of lease.
“Lease to be given to Hagan and Hagan, Saginaw, Mich.
“Mrs. J. C. Moch
“John Moch.
“Witness:
J. L. Mondy
M. W. Hagan.”
January 5, 1928, Josephine C. Moch and John Moch entered into a written lease of the premises with plaintiffs of “all that certain tract of land * * * containing 40 acres more or less.” This lease further provided:
“It is agreed that this lease shall remain in force for a term of one year from this date and as long thereafter as oil or gas or either of them is produced from said land by the lessee.
“If no well is commenced within six months from this date then this grant shall be null and void unless second party shall pay to the first party One ($1.00) Dollar annually for each acre thereafter that such commencing is delayed. The yearly rental shall be deposited to the lessor’s credit in the Lumberman’s Bank at Muskegon, Michigan, or its successors.
“The term of this instrument shall be for one year from the date hereof and so much longer as oil and gas shall be found in paying quantities. In case no well is drilled and no rental paid as above specified then this instrument shall be void and terminate at the option of either party.”
Plaintiffs claim that, at the time the lease was made, the lessors agreed with plaintiffs they would either procure the signatures of the remaining heirs of Carl Moch, deceased, upon the lease or would procure a deed from the remaining heirs of Carl Moch, deceased, to Josephine C. Moch so that the lease would demise the entire interest of all of the heirs of Carl Moch, deceased.
August 15, 1922, Albert Moch died, and Michael Moch was appointed as administrator. Albert Moch was a single man and left surviving him as his heirs at law Josephine C. Moch, his mother, his brothers Michael,. Stanley, John, Matthew, Nicholas, and Frank, and his two sisters Marie Schuler and Theresa M. Long above named. It is the plaintiffs’ claim that all the defendants knew of the execution by Josephine C. Moch and John Moch of the lease and approved the same.
It is alleged that May 1, 1928, Matthew Moch, John, Michael, Stanley, Frank, and Nicholas Moch, together with Helen Moch, wife of Nicholas Moch, and Theresa M. Long and Marie Schuler, daughters of Josephine C. Moch, executed and delivered a deed to Josephine C. Moch conveying to her all of their interest in the 40 acres of land above mentioned; that the same was delivered to Josephine Moch in order to perfect her title to the 40 acres of land in question, and that she thereby became the owner thereof. May 22, 1928, Josephine C. Moch died. Michael Moch was appointed her administrator. She 'left as her heirs at law Michael Moch, Stanley, Matthew, John, Frank, and Nicholas, and her two daughters, Marie Schuler and Theresa M. Long. After the death of Josephine C. Moch, the grantors in this deed destroyed the same. Plaintiffs tender by the bill of complaint $40 in rental stipulated for in the lease. The Moch heirs refuse to let the defendants begin' drilling operations upon the premises. The bill asks for a restoration of the deed and the establishment and validation of the lease. Defendants answer and deny that Josephine C. Moch and John Moch, the lessors in the lease, were to procure the signatures of the remaining heirs of Carl Moch to the lease or to procure a deed from the remaining heirs of Josephine C. Moch. They allege the lease was signed with the express understanding with the plaintiff Hagan, and subject to the condition, that if the plaintiffs failed to procure the execution of the lease by the remainder of the heirs of Carl Moch, he (Hagan) would return the same to Josephine C. Moch and John Moch; that no valuable consideration was paid by plaintiffs for the agreement or lease; that by reason of a breach of this condition precedent and the failure of consideration for the original lease, the same is void. They allege the lease is for a fixed period of one year from January 5,1928, and so long as neither gas nor oil was found in paying quantities, the lease never became operative and has terminated, and plaintiffs ’ rights thereunder have been extinguished;' that plaintiffs’ conduct in clouding defendants’ title impairs its marketability, prevents their development of it, deprives them of an opportunity to obtain a substantial consideration for their property and of prospective royalties.
Plaintiffs ask that the decree of the court restore the deed of the premises here involved, decree the title to be in Josephine C. Moch, deceased; decree the lease given by the heirs of Josephine C. Moch to plaintiffs a valid lease against the entire fee simple title of the real estate; that plaintiffs have a reasonable time after a decree to commence drilling; that the lease be decreed to be the lease of all of the defendants as though signed by them; that the decree provide contingently for the payment of the rental to the clerk of the court as payment to lessors; that a certified copy of the lease may he filed in the office of the register of deeds, and for further relief.
The defendants ask that the lease from Josephine C. Moch and John Moch he decreed void; that plaintiffs be decreed to release and surrender the same; that the decree so canceling such lease be recorded in the office of the register of deeds; that defendants have damages by reason of plaintiffs’ unlawful conduct, and for other relief.
The trial court found the deed alleged to have been made, executed, and delivered to Josephine C. Moch was not so made, executed, and delivered; that the $40 for rental was not to be paid until, the deed vested the title in Josephine C. Moch, and that no rental at all was actually paid; that Josephine C. Moch had ll/27ths interest and John Moch 2/27ths interest in the 40 acres of land and the lease was binding on their interest, and decreed existence of the same. Both parties appealed.
Though there are decisions which hold that one tenant in common signing a lease of property is bound thereby, we cannot amend the contract here and make it something other than the parties intended it to be. It was not to be binding on the lessors except upon condition it was signed by all, and leased all the property. It was not so signed. The condition precedent to its binding force and effect, subject to the fulfillment of which it was turned over to Hagan for plaintiffs, was never performed. The lease never became valid and binding upon any of the lessors and is without force and effect. No consideration was paid for this lease at the time it was executed. None was intended to be paid until the condition precedent to its effective operation was fulfilled. The consideration of the lease of all this 40 acres was to belong to the owners of all the interests therein in accordance with their respective interests. No consideration was ever paid to them. The lease never became operative, and is null and void.
Though the terms of a lease are conclusively presumed to embody the terms of the contract, it is competent to show, by parol, the conditions upon which the lease was to be delivered. Fulton v. Priddy, 123 Mich. 298 (81 Am. St. Rep. 201); 11 Am. & Eng. Enc. Law (2d Ed.), 343. And though the lease recites a consideration, the receipt of which is confessed and acknowledged by the lease, the true consideration, or want of consideration, may be shown by parol. Church v. Case, 110 Mich. 621; Breitenwischer v. Clough, 111 Mich. 6 (66 Am. St. Rep. 372); Ford v. Savage, 111 Mich. 144; Clark v. Lowe, 113 Mich. 352; Eckler v. Alden, 125 Mich. 215; Scovel v. City of Detroit, 159 Mich. 95. Though the lease in question was delivered to plaintiffs, it was delivered upon condition that all the signatures of all of the owners of interests in the land were to be procured before it was to be operative.
“Manual delivery is not always delivery in law, so as to operate to pass the title. If the circumstances be such as to indicate a conditional, rather than an absolute, delivery, then no title passes until the condition be'fulfilled. ” Chick v. Sisson, 95 Mich. 412; Wisconsin & Michigan Railway Co. v. McKenna, 139 Mich. 43.
The conditions under which this lease was delivered were never fulfilled, and the lease never became operative. Defendants who signed the lease were not bound thereby. The decree of the trial court is reversed, the lease canceled, and the bill of complaint dismissed, with costs.
Wiest, C. J., and Butzel, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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Butzel, J.
In March, 1922, the owners of the property at Fourteenth and Blaine avenues, Detroit, Michigan, executed a mortgage to Otis D. Nusbaum, trustee, plaintiff herein, for the purpose of securing $70,000 of first mortgage bonds. A contract was entered into -with Straus Brothers Company, a large investment company, to sell the bonds after they had been duly validated by the securities commission. Plaintiff, as far as the record shows, had no interest in the bonds except as trustee, nor were any funds left with him with which to protect the security.
The trust mortgage was given for the purpose of erecting a 25-apartment building on the premises. It not only covered the property and improvements thereon but also all rents, profits, and issues thereof. It contained provisions that the indenture would remain a first lien upon the estate and premises covered by the indenture. The mortgagors agreed to defend the trustee in the peaceful and quiet possession of the premises and to execute all further instruments to carry into effect the covenants of the mortgage. They agreed to maintain insurance and pay taxes as they became due, and in this behalf they authorized the trustee to act as their agent in the event of their failure to procure or renew the insurance, repair the building, pay taxes or assessments, remove mechanics ’ liens, carry on the prosecution of any suit affecting the security of the bonds. All moneys advanced for these purposes by the trustee were made a lien under the indenture. The mortgage contained an acceleration clause in the event of a default, and a right to waive it after the default was cured. It provided for a receiver in the event court proceedings were begun. It contained the usual clause giving the mortgagors the right to remain in possession of the premises, etc., while not in default. The covenants in the mortgage were made binding on all persons who might subsequently hold title to the property.
Article 8 of the mortgage empowered the trustee to enter and take possession of the premises in the event of any default for which the mortgage authorized him to declare the amount due and payable immediately. The mortgagors agreed to surrender the premises to him upon demand and empowered him, in his discretion, with or without force and with or without process of law, and without declaring the principal of the bonds due and without any action on the part of any bondholder, to enter upon, 'take and maintain possession of the premises, together with all records, documents, books, papers, and accounts, and to hold, manage, and operate the premises and collect the rents thereof, enter into leases, etc. Out of the proceeds of the rent the trustee was authorized to pay all arrearages of every kind, including 5 per cent, of all amounts collected for his compensation, and after all such arrearages had been paid, together with a sufficient amount to pay the next accruing instalment of interest, he was to return the property to the mortgagors. This right of entry, etc., might be exercised as often as it might be necessary.
Through a number of mesne conveyances, including foreclosure proceedings on a second mortgage, and after some litigation with owners in the chain of title, the defendants Bune M. Shapero, Harold M. Shapero, and Samuel Shapero, or some of them, became the owners of the equity of redemption. Bune M. Shapero occupied one of the apartments in the building’. It is not clear as to who the real owners of the equity of redemption are, as there seems to be considerable confusion arising through the statements of some of the defendants and the title record as appears in the register of deeds’ office, and the further fact that defendants had given to one another unacknowledged deeds which were kept in the family safe. Defendants had failed to make payments of principal, interest, taxes, and insurance premiums in accordance with the terms of the mortgage for several years prior to the beginning of this suit. Thereupon the trustee made written demand for the immediate possession of the land and buildings and for the rents, issues, and profits thereof, in accordance with the indenture. Plaintiff further served notice on the various tenants in the building demanding that the rent be paid to him under the assignment of rents clause in the mortgage. Defendants then sought to counteract the effect of this notice by notifying the tenants not.to pay any attention to plaintiff’s notice. Without instituting foreclosure proceedings, plaintiff has brought this suit in order to obtain the rents and profits from the building and the right of possession thereto. He asks for specific performance of Article 8 and the other clauses in the indenture by virtue of which plaintiff claims he is entitled to possession of the premises and the rents and income thereof. He further asks for an injunction restraining any interference by defendants in obtaining said- rents and profits and possession of the property. He also asks for general relief.
Defendants deny that the court has any jurisdiction, and that plaintiff has any right to the relief sought until the title to the property shall have become absolute upon a foreclosure of the mortgage. Defendants in a cross-bill ask for affirmative relief so as to remove any claims plaintiff may have on account of the notice to tenants -to pay the rent to plaintiff instead of to defendants. Subsequently, an order was entered permitting them to withdraw their cross-bill without prejudice. The circuit judge entered a decree of specific performance in favor of plaintiff, and defendants have appealed to this court.
The questions involved are presented by helpful briefs of respective counsel. The first question raised is whether Article 8 and the other provisions of the mortgage can be enforced in view of 3 Comp. Laws 1915, § 13221, which provides as follows:
“No action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or representatives, for the recovery of the mortgaged premises, until the title thereto shall have become absolute upon a foreclosure of the mortgage.”
The law is well settled in this State that, as a rule, a mortgagee may not divest the mortgagor of possession of mortgaged premises until the title thereto shall have become absolute upon foreclosure of the mortgage.
Section 13221, 3 Comp. Laws 1915, was preceded by Act No. 62, Pub. Acts 1843, which was of like tenor and effect, except for a slight difference in the wording. Prior to the statute of 1843, the old common-law concept of a mortgage prevailed. The mortgagee took legal title to the property and at any time after default could bring ejectment proceedings against the mortgagor. In Stevens v. Brown, Walk. Ch. 42, the mortgagee, defendant in the cause, had taken possession of the property by virtue of an irregular foreclosure, and the mortgagor brought proceedings to restrain defendant from further acts of ownership. The court said:
‘ ‘ The legal title to lands mortgaged is in the mortgagee, who may at any time after a default in the payment of the mortgage money or any part thereof, if not before, where the mortgage does not provide for the mortgagor’s retaining possession until that time, put the mortgagor out of possession by ejectment. 4 Kent’s Com. 155, and cases there cited. At law, the defendant has a right to the possession of the mortgaged premises, and equity will not take from him that right. ”
The right of a mortgagee to possession of the premises prior to foreclosure has been construed by this court very frequently since the enactment of the 1843 statute. We have consistently held that, as a rule, a mortgagor may not be deprived of possession until after the expiration of the equity of redemption through foreclosure proceedings.
In the case of Hazeltine v. Granger, 44 Mich. 503, the question of the right of possession arose after the default in a mortgage which granted to the mortgagee not only the premises but also all rents, income, and profits. The mortgage provided for the appointment of a receiver during the process of foreclosure. Justice Campbell stated, page 505:
“Even this was regarded as contrary to public policy by our legislature, and in 1843 the old law was changed so as to secure the mortgagor in his possession until a foreclosure had become absolute. The effect of this, as we have several times decided, was to prevent the mortgagee from obtaining under his mortgage any interest beyond that- of a security to be enforced only by sale on foreclosure, and to debar him from any right of possession. * * *
“The statute does not say that no ejectment shall lie unless there is an agreement to that effect, but that it shall not lie at all. Every mortgage made in common law form contains words whereby, if applied as they read, possession would belong to the mortgagee and his title woiild become absolute by default. The whole aim of equity was to arrest this forfeiture and not to allow the language of a mortgage to have any force against the equity of redemption. The statute is a further step in the same direction for the protection of mortgagors against agreements which, as literally drawn and as theretofore expounded, were deemed dangerous, and against public policy. The language of this mortgage expressly granting rents and profits on default is no stronger than the previous words of grant, and is really narrowed. It was no doubt intended to go further and to evade the statute. If it had contained an agreement, that ejectment should lie, it could not very well be enforced against the clause of the statute prohibiting it. It can have no greater force in enlarging the jurisdiction of equity to appoint receivers, which we held, in Wager v. Stone (36 Mich. 364), had been abolished. Any such attempt to create a forfeiture is contrary to equity and equity will not enforce it. The same principle which makes all original agreements void which destroy the equity of redemption in advance, must cover a partial as well as complete destruction. In Batty v. Snook, 5 Mich. 231, it was held that where an agreement was in fact a mortgage, an executory agreement to give up the equity of redemption on default was void, and would violate the doctrine which had annulled the common law forfeiture. If mortgagees can evade the law by requiring a forfeiture of something a little less than the entire freehold, but nevertheless covering its usufruct, the beneficial effect of the modern legislation and to a considerable extent of the previous equitable doctrine will be wiped out.
“We think the mortgage cannot be so enforced in equity as to deprive defendant of possession. As this is a mortgage of nothing but real estate, it is free from any questions which may possibly be mooted concerning other securities.”
The principle of Hazeltine v. Granger, supra, has always been followed in this State. See Baker v. Pierson, 5 Mich. 456; Newton v. McKay, 30 Mich. 380; Crippen v. Morrison, 13 Mich. 23; Wager v. Stone, 36 Mich. 364; Fifth National Bank v. Pierce, 117 Mich. 376; Hardy v. Allegan Circuit Judge, 147 Mich. 594, 596 (118 Am. St. Rep. 557, 10 L. R. A. [N. S.] 474); Lowrie & Robinson Lumber Co. v. Rubin, 245 Mich. 224; Janower v. F. M. Sibley Lumber Co., 245 Mich. 571.
Section 13221, 3 Comp. Laws 1915, enacted in almost its present form in 1843, was an expression of the public policy of the State. At the time of its enactment multiple apartment buildings were not known nor were the modern methods of financing construction loans through the issue and sale of bonds secured by trust mortgages in general use in this State. It has been held in almost every case, that, in view of the statute, the clause in a mortgage assigning rents was invalid, and a receiver would not be appointed unless there were other circumstances that called for equitable relief. This resulted in the enactment of a new law which expresses the change in the public policy of the State, being Act No. 228, Pub. Acts 1925, which provides as follows:
“Section 1. Hereafter, in or in connection with any trust mortgage or deed of trust, to secure bonds or obligations issued or to be issued thereunder, it shall be lawful to assign the rents and profits of the property mortgaged to the trustee or trustees under the trust mortgage or deed of trust for the benefit of the bondholders and holders of the obligations issued or to be issued under the trust mortgage or deed of trust.
“Sec. 2. The assignment of rents and profits, when so made, shall be a good and valid assignment of rents as against the mortgagor or mortgagors or those claiming under or through them from the date of the recording of the trust mortgage or deed of trust, and shall operate against and be binding upon the occupiers of the premises from the date of the filing by the trustee or trustees 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 trust mortgage or deed of trust, and service of a copy of such notice upon the occupiers of the mortgaged premises.”
It will be noted that the act begins with the word “hereafter.” It does not apply to mortgages executed prior to the enactment of this act of 1925. A new act may at times be merely declaratory of the law as it theretofore existed, and thus clarify any uncertainty that previously existed. This is not true in the present instance.
Plaintiff relies principally upon the case of Michigan Trust Co. v. Lansing Lumber Co., 103 Mich. 392, in which it is said:
“It has never been the policy of our law to divest the mortgagor of possession until foreclosure and the expiration of the period of redemption; and while we think it within the power of the parties to stipulate that such possession and management of the business may precede foreclosure, and that in such case a court of equity may enforce specifically such an engagement, as was held by the court below, and .as we think is sustained by the authorities (Shepley v. Railroad Co., 55 Me. 395; Shaw v. Railroad Co., 5 Gray, 162; Railroad Co. v. Superior Court of San Francisco, 55 Cal. 453; McLane v. Railroad Co., 66 Cal. 606 [6 Pac. 748]; Rice v. Railroad Co., 24 Minn. 464), yet such power should be exercised with a full recognition of the settled policy of this State, and should not be exercised except in a case where the right is clearly given by the engagement of the party. See Beecher v. Rolling Mill Co., 40 Mich. 307.”
This case involved not only real estate but also personal property and a going business. Notwithstanding the statement of the court hereinabove quoted, the court did deny a receiver. The opinion does not show that 3 Comp. Laws 1915, § 13221, was considered by the court. This case was called to the attention of the court in Union Trust Co. v. Charlotte General Electric Co., 152 Mich. 568. In that case an order appointing’ a receiver was set aside, although the mortgage contained an express assignment of rents upon default. Unless there have been other equitable reasons to the contrary, the court has steadfastly held to the rule set forth in Hazeltine v. Granger, supra, in its subsequent decisions. In the case of American Trust Co. v. Casselman, 248 Mich. 76, relief was granted to the original mortgagor, and a receiver appointed to take over the property which had been sold to the mortgagor’s grantees so that the original mortgagor would not be held for a deficiency.
Great stress is laid upon the fact that the present proceeding has nothing whatsoever to do'with a foreclosure suit, but that it is a contract between parties giving plaintiff certain rights which he now seeks to exercise without bringing foreclosure proceedings. "We do not believe that the fact that no foreclosure proceeding’s have been begun makes any difference. The statute does not say that no ejectment suit may be brought while foreclosure proceedings are pending. It limits the time in no way; it provides for no ejectment suit until the title shall have become absolute upon foreclosure of the mortgage. The statute applies equally to the period prior to the beginning of the foreclosure proceedings as it does to the time subsequent thereto until the title becomes absolute in the mortgagee. If plaintiff’s contentions were correct, similar provisions might be incorporated in every mortgage, and then if the mortgagor rented out his home or any other property he could be divested of the income from it until the mortgagee, at the expense of the mortgagor, had collected therefrom all arrearages for principal, interest, etc., including that which accrued during the period in which the mortgagee held the property, together with interest for six months or more in advance. This might result in possession of the property being withheld from the mortgagor for a protracted period and cause the very hardship that the law seeks to prevent. We are, therefore, of the opinion that the plaintiff did not have the right to possession of the property on account of the nonpayment of principal and interest, notwithstanding Article 8 and the other provisions of the mortgage hereinbefore referred to.
We are, however, of the opinion that plaintiff is entitled to some relief in the premises. The condition of the title made it very uncertain as to whom he should look for payment. From the uncertainty as to the ownership of the property, it might be difficult to determine in whose name the insurance should be placed or who should sign the coinsurance clauses. The defendants were collecting approximately $8,000 per year over operating expenses. They were not applying any part of this amount towards the payment of principal and interest on the mortgage. They were, however, obligated to maintain the security. There is a difference between failure to pay principal and interest and failure to pay insurance premiums and taxes. The former applies to payment of sums due the mortgagee and the latter applies to the security itself. Anything that tends to destroy the security is waste. We do not believe the ejectment statute prevents a court of equity from enforcing provisions of the mortgage which insure the payment of taxes and insurance premiums. The failure to pay them out of the large revenue from the property might result in the destruction of the larger part of the security. The record shows that large sums were due for insurance premiums, and, further, that the 1927 and 1928 city, State, and county taxes had not been paid, and that the property has been sold for the 1927 city taxes, so that there is at the present -time an outstanding tax title against the property. It further shows that there was over $5,600 due for back taxes prior to the beginning of the suit. This does not include the current taxes which are now due, and, if not paid, would make the amount due for taxes approximately $8,000. This constitutes waste, and a court of equity should interfere.
A trustee under a trust mortgage such as the one under consideration is frequently selected not on account of his financial worth but on account of his unquestioned integrity. He may not even have the means to advance moneys for insurance premiums and taxes. The bonds had been sold to the public and the bondholders may be scattered throughout the country. In some instances they may not even be known to the trustee. Those of the defendants who own the title to the premises took it subject to the terms of the mortgage. Defendants are collecting a very large income from the property, and it is their duty to at least maintain the security and not permit its impairment or possible extinguishment through fire or tax sale. We believe the case of Michigan Trust Co. v. Lansing Lumber Co., supra, is at least authority for this conclusion. In the case of Union Trust Co. v. General Electric Co., supra, the court quoted that part of the opinion herein-before set forth from the case of Michigan Trust Co. v. Lansing Lumber Co., but stated, in denying a re ceiver, that the taxes were paid. The court further said:
“The right to appoint a receiver depends upon whether a showing has been made that there is danger of ultimate loss to the bondholders by permitting the property to remain in possession of its owners until the final decree and sale. Union Trust Go. v. Railroad, 4 Dill. (U. S.) 114.”
None of the decisions which upheld the right of the mortgagor to remain in possession until title to the property has become absolute in the mortgagee after foreclosure proceedings in any way affect the principle that a receiver may be appointed in the event there is waste.
There is considerable conflict in authority as to whether nonpayment of taxes and failure to pay insurance premiums amounts to waste. In the case of W. R. Reynolds & Co. v. Gordon, 234 Mich. 189, the court did sanction the appointment of a receiver and it was influenced by the fact that it was impossible to tell who the vendees were under a land contract. A receiver has at times been appointed to prevent waste. Ralph v. Shiawassee Circuit Judge, 100 Mich. 164; Union Street Railway v. Saginaw, 115 Mich. 300. The facts in these cases were different from those in the present case. We do not find the exact question ever passed upon by this court in- a case where the facts were similar to the one at issue. We believe, however, that a court of equity should not refuse to lend its aid where defendants have taken property subject to a trust mortgage with provisions similar to the one hereinbefore described, where the public, who have bought the bonds, should be protected, where there is uncertainty in regard to the present owners of the title, where the income from the property is far in excess of the requirements for the upkeep of the property, where there is already an outstanding tax title, and other taxes are not being paid, where insurance premiums are likewise unpaid, and where the mortgagee may have no financial interest in the mortgage except to carry out his duties as trustee.
Decisions of other States are not entirely pertinent. The ejectment statute and the foreclosure laws may be different. The decisions are very much in conflict. In the case of Winkler v. Magdeburg, 100 Wis. 421 (76 N. W. 332), it was said:
“In view of all the circumstances, we regard the granting of the receivership in question as a prudent- and judicious exercise of the power of the court. The payment of taxes and cost of insurance is necessary to preserve the property. Equity devolves it upon him who has the use. Not to pay them is waste. The failure of the defendant to pay the taxes and insurance was casting a burden on the mortgaged estate which equity demanded that the mortgagors should discharge. The order was fully justified, as within the rule of adjudicated cases.”
The court stated in Schreiber v. Carey, 48 Wis. 208 (4 N. W. 124):
“It is clearly a want of good faith on the part of the mortgagor to neglect to pay the interest on the mortgage debt, or to pay the taxes upon the mortgaged property, and yet remain in possession, and appropriate all the profits of the use of the estate to his own purposes.”
In Pasco v. Gamble & Poole, 15 Fla. 562, 566, the court said:
“I am clear that wherever the mortgagor, legally in possession, and entitled thereto by statute or contract, refuses and fails to do any act which is neces sary to the preservation of the estate, and to the doing of this act the appointment of a receiver and sequestration of the rents is necessary, that a court of equity should not hesitate to take the possession from him. Here one of the allegations is that the purchaser has failed to pay the taxes. Such tax is an annual charge upon the lands, and when a receiver is necessary to its discharge the appointment is proper.”
With like effect are Adams v. Blalock, 163 Ga. 345 (136 S. E. 146); Grether v. Nick, 193 Wis. 503 (213 N. W. 304); Larson v. Orfield, 155 Minn. 282 (193 N. W. 453). In some of these cases other factors also entered, hut we are in accord with the principle set forth in the excerpts from the opinions.
In the present case we believe that this relief should not extend further than to the payment of insurance premiums and taxes. When and if the taxes and the sums expended for insurance premiums have been paid by the defendants, the rents shall revert to the defendants, who then shall be entitled to them until after the title shall become absolute through foreclosure proceedings.
Attention is called to the question of whether a court of equity has jurisdiction, it being claimed that this is an ejectment proceeding and cannot be brought in a court of equity. We do not believe it necessary to discuss this question inasmuch as the rents have been assigned to plaintiff. We have held under Act No. 228, Pub. Acts 1925, that the court will enforce a similar provision and that a receiver will be appointed for that purpose. Guaranty Trust Co. v. Feldman, 247 Mich. 524.
The bill of complaint seeks specific performance of the contract assigning rents. The decree of the lower court gave plaintiff all the rents, issues, and profits of the mortgaged property, with the right of possession thereto and the management and operation thereof, until defendants would become entitled to restoration of the property in accordance with the mortgage. It restrained defendants from interfering with the collection of rents, possession, etc. The decree of the lower court will be modified to the extent that plaintiff shall be entitled to all the rents, profits, etc., of the mortgaged premises until all amounts due for taxes and insurance premiums, together with interest on said amounts, shall be paid. Plaintiff shall not only have a right to such amounts, but he shall have the cumulative right to bring suit on the bond given by defendants on the appeal to this court. As soon as the money is paid, either through recovery on the appeal bond or through the collection of rents, profits, etc., or through defendants’ paying all taxes and amounts due for insurance premiums, then plaintiff shall have no further right to said rents and profits unless there are further defaults in the payment of taxes and insurance premiums or until their title to said property, it they acquire it, shall become absolute upon foreclosure of the mortgage. There shall further be a stay of proceedings for 30 days from the time of filing this opinion, during which time defendants may pay the aforesaid taxes and insurance premiums, in which event further enforcement of the decree shall become inoperative. It is further provided that in the event plaintiff shall have any difficulties or meet with any interference in the collection of said rents, profits, etc., through the action of defendants, thereupon a receiver may be appointed for said property upon proper application and showing to the circuit judge. The decree of the lower court is modified to this extent and the case is remanded to the lower court with, the foregoing instructions. Plaintiff will recover costs.
Wiest, C. J., and Clark, Potter, Sharpe, Pead, and North, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
McDonald, J.
This bill was filed to enforce a mechanic’s lien on certain land in Wayne county, Michigan, and for relief against the surety on a statutory bond given to release the lien. The plaintiff is a Pennsylvania corporation authorized to do business in Michigan. Joseph J. Berghoff and Frances H. Berghoff, his wife, are the record owners of the title to the land. The Berghoff Printing Company is a Michigan corporation and is in possession of the premises as lessee. Anthony W. Schmitt and Mary Schmitt, his wife, and the United States Trust Company and Howard C. Wade, trustee, are record mortgagees. Ben Somkin is the principal contractor and the Detroit Fidelity & Surety Company is surety on the bond. On the hearing, the court found a lien in favor of the plaintiff in the sum of $1,285.49, and entered a decree against Ben Somkin, the Berghoff Printing Company and the Detroit Fidelity & Surety Company. As to the other defendants, the bill was dismissed. The surety company has appealed.
The record presents the following questions:
1. The defendant claims that the Berghoff Printing Company, at the time of the making of the principal contract and the performance of the work, had no interest in the property to which a lien could attach,
The Berghoff Printing Company is lessee of the building. It has a written lease for ten years which was executed after the principal contract was made and after the furnishing of the first of the materials and labor. But the testimony shows that the building was designed and built for the Berghoff Printing Company. Defendant Joseph Berghoff was a director and officer in that company and active in the management of its affairs. He testified:
“I would not have built this building for any other purpose except for the Berghoff Printing Company, and it was designed to meet their particular needs and requirements. ’ ’
His testimony further shows that he and the other directors of the' company had agreed on leasing the premises before the plans were ordered, and all that remained to be done was the formal execution of the lease. But to sustain the lien against the company, it is not necessary to find that it had a more definite interest in the property at the time the contract was made, for it subsequently acquired an interest, and to that the lien attached. Under the present lien statute, 3 Comp. Laws 1915, § 14796, a lien attaches not only to the interest of the owner, part owner, or lessee at the time the work was commenced and the first of the labor and materials were furnished, but also to “any- subsequent acquired interest of any such,owner, part owner or lessee.” There is no merit to defendant’s, contention that the Berghoff Printing Company had no interest to which the lien could attach.
2., It is also claimed that the proceedings are defective because there is no proper proof of service of the statement of account and lien.
The statute requires service to be made within ten days after the filing of the lien and proof of such service with the date and manner tnereof to he shown by the affidavit of the party who made it. The affidavit recites that service was made within the ten days,, but does not give the exact day. The statement that it was served within the ten days after the filing of the lien is a statement of fact the truth of which is not challenged. The defendant admits service, and, as he does not contend that it was not made within the time provided by the statute, there can be no claim of prejudice. The affidavit is not as specific as the statute requires, but in view of the facts we think it should be held sufficient.
3. A further claim is made that there were three separate contracts improperly included in the one statement of account and lien.
These so-called separate contracts grew out of a change in the plans, but the materials furnished and the labor performed were .for the same building. They should be considered as having been done and furnished under one entire contract. We think it was unnecessary for the plaintiff to file separate liens. Union Trust Co. v. Casserly, 127 Mich. 183.
4. A further objection to the proceedings is that the principal contractor is improperly named in the statement of account and lien, and is not made a party in the bill of complaint.
The principal contractors were Ben Somkin and Jacob Linderman, who were copartners in business. Somkin was named in the statement of account and lien and in the bill of complaint as the principal contractor. He was made a party defendant to the suit, and a personal judgment was decreed against him. Mr. Linderman was not named in the statement or bill and was not made a party. The plaintiff’s contract for material and labor was with Somkin alone. He represented to the plaintiff that Linderman was not a partner and had no interest in the contract. The plaintiff did not know that Linderman was a partner or that he-had signed the contract with the owner, bnt could have learned the facts if it had made inquiry, which it probably would have done if it had not been misled by Somkin’s representations. So, in treating Mr. Somkin as the sole contractor, the plaintiff acted in good faith. In these cases the principal contractor must be named in the statement of lien and made a party to the suit. The plaintiff named Somkin, made him a party defendant, and obtained relief against him. The question is whether his lien is to be defeated because he did not also name Linderman and make him a party. Sdmkin was the active member of the firm. He did all of the business with the plaintiff, the architect, and the owner. He alone contracted in his own name for the materials and labor performed and furnished by the plaintiff, all of which went into the building to the owner’s benefit. His name as principal contractor in the statement of lien informed the owner that the plaintiff was asserting a lien on his property for an indebtedness due from Somkin. No further information was necessary for the owner’s protection. He had all the benefit he would have had if Linderman’s name had been included. In these circumstances, the statement of account and lien was a sufficient compliance with the statute.
Before the plaintiff could establish its lien, it was necessary to show an indebtedness against the principal contractor. It had no contractual relations with Linderman. But it brought in Somkin, and the court adjudged their accounts and found an indebtedness due to the plaintiff which formed the basis for the lien. This indebtedness was due from Somkin alone. Linderman is not bound by the decree, but no relief was granted against him. The amount due to the plaintiff is not questioned, and the defendant does not claim to have been injured because Linderman was not made a party. The partnership accounts could be adjudged and adjusted without him. In view of the circumstances, he was not a necessary and indispensable party to the proceedings.
Other questions of a technical nature are argued by the defendant, but we do not deem it necessary to discuss them. They are without merit.
The decree of the trial court is affirmed, with costs to the plaintiff.
Clark, Sharpe, and North, JJ., concurred with McDonald, J. | [
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Sharpe, J.
This action was brought by plaintiff on January 5, 1928, to recover on three promissory notes, drawn payable to him and signed by the defendant. They all bore date August 28, 1920. One was for $750, payable September 1, 1921, another for $740, payable September 1, 1922, and the third for $700, payable September 1,1923. When the note due September 1, 1921, was offered in evidence, objection, was made, on the ground that it was barred by the statute of limitations. Notice of this defense had been duly given. .The notes were received in evidence, and plaintiff then rested. Defendant then submitted proof that the notes were given as a consideration for a fishing outfit, bought by defendant from plaintiff, the purchase price of which was $4,200, and sought to prove that the nets were not as represented; that certain parts of the outfit were not delivered to him, and that the plaintiff owned but a one-half interest in a gas boat which was in-eluded in the sale, and sought to recoup his damages by reason thereof as against plaintiff’s claim.
The trial was interrupted, and discussion had as to whether defendant’s claims in this respect were not also barred by the statute of limitations. After argument of counsel, the trial court so held, and directed the jury to find a verdict for the amount of the other two notes, amounting, with interest, to the sum of $2,081. A judgment was entered there for, of which, defendant seeks review by writ of error.
Recoupment is a creature of the common law. It presents to the court an equitable reason why the amount payable to the plaintiff should be reduced, and the plaintiff will not be permitted to insist upon the statute of limitations as a bar to such a defense when he is seeking to enforce payment of that which is due him under the contract out of which the defendant’s claim for recoupment arises.
This is the first time we have been called upon to pass upon this question, but it has been many times decided by other courts. In 37 C. J. pp. 804, 805, the rule is thus stated:
“The defense of reduction or recoupment which arises out of the same transaction as the note or claim survives as long as the cause of action upon the note or claim exists, although an affirmative action upon the subject of it may be barred by the statute of limitations.”
Many cases are cited in the note thereto in support thereof. The authorities are reviewed at length in a note to Huggins v. Smith, 141 Ark. 87 (216 S. W. 1), in 16 A. L. R. 339 et seq. The annotator says:
“The defense of recoupment exists as long as the plaintiff’s cause of action exists and may be asserted, though the claim as an independent cause of action is barred by limitations. ’ ’
The cases cited and quoted from fully sustain this statement.
The note due plaintiff on September 1, 1921, and defendant’s right to recoup damages arising out of the contract were both barred by the statute of limitations at the time this action was begun. Plaintiff may not recover on this note. Neither may defendant assert his claim for recoupment to the amount of it.
On the record presented, after plaintiff has made proof of the amount due upon the other two notes, defendant may make proof of his damages by way of recoupment. The amount due upon the first note must then be deducted therefrom. The balance thereof, as found by the court or jury, will then be applied upon the amount due plaintiff. Should it equal such amount, plaintiff can have no recovery. Should it exceed such amount, defendant may not recover therefor, as his right to assert such claim is barred by the statute. He may have consideration of it only in satisfaction or diminution of the amount due plaintiff.
The statute (3 Comp. Laws 1915, § 12477), permitting a recovery by defendant by way of recoupment in excess of the amount due plaintiff, is not applicable, as defendant’s right to recoup is barred and his claim therefor considered only to the extent to which it reduces or equals the amount for which plaintiff is entitled to recover.
The judgment is reversed, with costs to defendant, and a new trial ordered.
Wiest, C. J., and Butzel, Clark, McDonald, Potter, Pead, and North, JJ., concurred. | [
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] |
Sharpe, J.
On August 18, 1905, the defendant Willis Clifford became the owner in fee of lot 29 of a subdivision in Detroit. On it was a dwelling in which' he and his wife, the defendant Margaret It. Clifford, have since resided. On October 27, 1910, Clifford and Ms wife acquired title by the entireties to lot 32, next adjoining lot 29 on the north. About the same time, by appropriate conveyances, the title to lot 29 was also lodged in them by the entireties. The title thus remained until November 29, 1916, when Mrs. Clifford conveyed these lots to her husband by qMtclaim deed. Some improvement was then put upon the property. Certain mortgages were soon after placed thereon, in which the wife joined to bar her dower interest. These mortgages appear to have been discharged, except one to the defendant Michigan Mutual Life Insurance Company, executed in 1917, on which $7,000 is yet unpaid. Parts of both lots had been sold prior to 192.1, in which the wife joined in the deeds to bar her dower. On October 27, 1924, the husband and wife joined in a deed to the east 90 feet of lot 29 (the unsold part of the property) to Harry P. Bull, who reconveyed the same to them as tenants by the entireties.
On December 10, 1925, Alexander Clifford, a brother of Willis, recovered a judgment against him in the sum of $1,304.89. He (Alexander) died soon thereafter, and the plaintiff was appointed administrator of his estate, and the action was revived in its name. J udgments were afterwards recovered by the administrator against Willis on March 5th, and March 14, 1927, in the sums of $1,573.89 and $238.70, respectively. Writs of execution on these judgments were issued, under which levies were made upon the 90 feet of lot 29 above referred to in March and April of that year, and this bill was filed in aid thereof.
A careful reading of the record satisfies us, 'as it did the trial court, that considerable pressure was brought to bear upon Mrs. Clifford to induce her to execute the quitclaim deed by which she severed the estate by the entireties in the property and conveyed it to her husband, and that she did so under his promise to return such interest to her. This act on her part and promise on his part formed a sufficient consideration for the deeds executed in 1924, by which the title was again placed in both of them by the entireties. Were not the rights of creditors involved, the transaction would be free from criticism. What has been said in cases in which conveyances were made from husband to wife, without consideration, is in no way controlling.
Plaintiff relies on the rule of law that where a wife allows the title to property in which she has an equitable interest to stand in the name of her husband, and credit is extended to the husband in reliance on his ownership thereof, a subsequent transfer to her is void as against the rights of such creditors. 10 R. C. L. p. 788; 21 C. J. p. 1172. This rule has been somewhat qualified in this State. In Bull v. Merrill, 69 Mich. 49, 58, it was said:
“Complainant would not lose her rights as a creditor of her husband by failing to make her claim known, even as against the defendant, who trusted him in ignorance of it. ’ ’
See, also, Smith v. Tolman, 166 Mich. 651.
But, if the rule be here applied without qualification, plaintiff is not aided thereby. The record is silent as to any representations made by Willis to his brother at the time the credit was extended, nor is there any proof that at that time the brother placed reliance in the ownership of this property by Willis as security for his debt, nor can we. indulge in any such presumption. Both Mr. and Mrs. Clifford were examined as witnesses, and no question was asked either of them in any way relating thereto. The deed here attacked was not, in fact or in law, fraudulent as against the rights of the plaintiff.
The decree dismissing the bill is affirmed, with costs to appellees.
Wiest, C. J., and Btjtzbl, Clark, Potter, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
Clark, J.
The bill prays construction of a will. Prom the decree plaintiff has appealed.
The will:
“I, Annie J. M. Smith, of the city of Muskegon, State of Michigan, being of sound mind and memory, do make, publish and declare this my last will and testament, hereby revoking all former wills and codicils thereto, if any, by me at any time heretofore made.
“First. I direct the payment of all my just debts and burial expenses.
“Second. I give and bequeath all my household goods, furniture and furnishings, including books, pictures, rugs, musical instruments, my silverware and jewelry, my wearing apparel and kindred articles, to my daughters, Belle S. Gettins, of Muskegon, Mich., and Shirley S. Thurston, of Montclair, New Jersey, if surviving me, or to the survivor of them.
“Third. If my said daughter, Belle S. Gettins, or her issue, survives me, I direct my executor to divide the rest, residue and remainder of my estate, real, personal and mixed, wherever the same may be situated, into two parcels of equal value each, in its judgment; and as to said parcels I give, devise and bequeath the same as follows:
“Section A. One thereof to my said daughter, Shirley S. Thurston, if she survives me, and the same to her issue if she does not survive me.
“Section B.' One thereof to the issue of my said daughter, Belle S. Gettins, if she is deceased with issue surviving me.
‘ ‘ Section O. If my said daughter, Belle S. Gettins, survives me, then one portion thereof to the Grand Rapids Trust Company, a corporation, of Grand Rapids, Michigan, in trust, however, for the following uses and purposes:
“Clause 1. To take possession of, care for, manage and control the same; to pay all taxes, insurance, repairs and other necessary expenses and its reasonable charges and expenses for the proper care and management of this trust fund; and to rent or lease, to sell and convey and convert into money, any part or all thereof as it, in its discretion, shall deem for the best interest of my estate and the beneficiaries of this trust; and to invest and reinvest any moneys of this trust fund or the proceeds of any sales, in such income producing securities or properties, as, in its judgment, it shall deem proper, hereby giving- to my said trustee for such, purposes all of the authority and power I would possess, if living.
‘ ‘ Clause 2. During the period that my said daughter, Belle S. Gettins, shall survive me, I direct my trustee to pay to her, in monthly or quarterly installments, as she may elect, the net income arising from this trust fund; and upon her death I direct as follows:
‘ ‘ (a) If she has issue then surviving I direct my trustee to divide this trust fund into' portions of equal value in its judgment, the number being one for each of her children then surviving, and one for each child deceased with issue then surviving-, if any such; and I direct my trustee to pay, deliver and convey one of said portions to the issue of each such child deceased, if any; and one portion to each child surviving- and having reached 25 years .of age, if any; and any remaining portions, my trustee shall keep each as a special trust fund, for one each of her children surviving and being less than 25 years of age, and it shall pay to each such child the net income arising from his or her special fund, and upon a child reaching the age of 25 years, it shall pay, deliver and convey to said child his or her special trust fund; and in the event of the death of such child before the same shall reach the age of 25 years, my trustee shall pay, deliver and convey his or her special fund to my said daughter’s children surviving, except this, that if any child has died with issue then surviving-, said issue shall take the share the deceased child would receive if living and if at the death of any child my daughter has no issue then surviving, it shall pay, deliver and convey the special fund to my daughter, Shirley S. Thurston, if surviving, and to her issue, if she is deceased.
“(b) If she has no issue then surviving I direct my trustee to pay, deliver and convey this trust fund to my said daughter, Shirley S. Thurston, if then surviving, and to her issue, if she is deceased.
“Fourth. If my said daughter, Belle S. Gettins, or her issue does not survive me, I give, devise and bequeath the said rest, residue and remainder of my estate, wherever situated, to my said daughter, Shirley S. Thurston, if surviving* me, and the same to her issue if she does not survive me.
“Fifth. If I own real estate at my death, I request the same shall be sold as rapidly as my executor shall deem it advisable so to do, except this, however, that if my daughter, Shirley S. Thurston, is surviving, my executor shall confer with her as to the same and secure her approval to any sale before its completion; and, I- also direct that the party making a sale of such real estate, whether same be my executor or some other person, shall receive therefore the prevailing real estate commission then being paid in Muskegon.
‘ ‘ Sixth. I hereby nominate and appoint the Grand Rapids Trust Company, the executor of this, my last will and testament, giving and granting unto it as such executor, full power and authority to sell and convey and in any lawful manner dispose of my estate, both real and personal, or any part thereof, upon such terms, at such times and in such manner as it shall deem proper and for the best interest of my estate.
“In witness whereof, I have hereunto set my hand and seal this 29th day of May, A. D. 1920.
“Annie J. M. Smith. (L. S.)
“The foregoing instrument, consisting, of three type-written pages and 21 lines was, on this 29th day of May, 1920, signed in our presence and published and declared by the testatrix to be her last will and testament, and we, at her request and in her presence and in the presence of each other, have hereunto signed our names as witnesses.
“Jos. E. Wake, of Maplewood, N. J.
“Jos. B. Wake, of Grand Rapids, Mich.”
Testatrix died in August, 1928, leaving two children, both of whom are now living. Shirley Thurston was then 42 years old, mother of four living children. The other daughter is plaintiff B.elle Gettins, then 52 years old, who has no issue.
The general plan or scheme of the will is (omitting particulars):
(1) To give one-half of the estate to Shirley in fee.
(2) (a) To give a life estate in the other half to Belle (b) with remainder to Shirley or her issue if Belle die without issue, and, (c) if Belle die with issue, to give the remainder to such issue (or to issue of any deceased child), to be held in trust, however, until such issue attain the age of 25 years.
It is conceded that this trust provision respecting surviving issue, of Belle violates both the statute against restraints on alienation and the rule against perpetuities (Michigan Trust Co. v. Baker, 226 Mich. 72) in that
“... .there is a mere possibility that there are no persons now in being, by whom an absolute fee in possession of this trust estate can be conveyed, and that alienation may by mere possibility be suspended for a period longer than two lives in being....”
In applying the rule against perpetuities, Belle Gettins, although now childless and 52 years old, must be considered as capable of having issue as long as she lives. Rozell v. Rozell, 217 Mich. 324.
The question before us is: May we lop off the invalid trust provision and permit the rest of the will to stand, or must we hold the entire will void because of such provision? To hold the will void is to defeat completely testatrix’s whole plan of distribution of her property, which'she had right to dispose of as she pleased. We may and should (eliminating the invalid trust provision) sustain the remainder of the will if, in doing so we do not violate the gen eral plan and scheme of testatrix, if we do not in effect make a will for her. Rozell v. Rozell, supra.
The first part of paragraph (a), clause 2, of the will, standing alone, is a gift of the remainder over the life estate to Belle to surviving children of Belle and to surviving issue of any child as set forth. Following this testatrix burdened the gift with the invalid trust.
If this trust provision be eliminated, the remainder over Belle’s life estate will go to the very person or persons to whom testatrix wished it to go. If Belle have issue, now most improbable, and if they or the issue of any deceased child survive as infants at Belle’s death, the law will provide guardianship for them, and testatrix ?s desire to have such interest conserved will be substantially fulfilled.
Testatrix intended to give remainder over Belle’s life interest to issue of Belle, if any. She intended the gift to be valid. It was not her purpose to destroy the gift by the invalid provision for trust; Assuming, as we must, that Belle may have children, to destroy the gift would do great violence to testatrix’s intention. It does no great violence to her intention to eliminate the trust and to permit the gift to stand, and by doing so the will is given nearly full effect; probably it will prove to be full effect, which surely is to be preferred over complete destruction of the will. Setting aside the trust provision violates the will; no doubt of it. But the test is: Does it change her general plan and scheme of disposing of her property so that in effect a will is made for herf We think it does not. See Palms v. Palms, 68 Mich. 355; Rozell v. Rozell, supra, and authorities there cited.
This test as applied in the cases produces various results, depending on the facts of the particular case. The Baker Case is cited as requiring a holding that the will is void. It may be distinguished on this question which was not discussed in the opinion. There testatrix expressly fixed and determined invalidity. She said the gifts should go to “girls at the age of twenty-five years and boys at thirty years and not before.” (Italics ours.) A purpose to give lawfully thus expressly and positively negatived could not well have been found.
The decree of the trial court with respect to the remainder over Belle’s life interest is:
“In case Belle S. Gettins dies with issue then surviving, the trust fund will become intestate property and will go at that time to the heirs at law of Annie J. M. Smith.”
It will be seen that by the decree both the gift over to issue of Belle and the trust imposed on the gift are eliminated. Whether this was a gift in trust or a gift burdened with a trust; whether the gift and trust are in one paragraph or two (Palms Case) makes no difference. Every word of this will which can stand should stand. The trust feature as imposed on the gift is alone eliminated. The gift stands.
If Belle Gettins die leaving issue surviving or issue of such issue as set forth in the will, they will take remainder over the life estate in fee. If there be no such issue, remainder will pass under the will. The decree will be modified in accordance herewith, and, so modified, affirmed. Costs to appellant.
Wiest, C. J., and Butzel, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
North, C. J.
This is a mandamus proceeding wherein plaintiff seeks to compel the circuit judge to grant a further extension of time within which to settle a bill of exceptions in a case brought by Charles H. Sanford against the plaintiff herein. Sanford’s suit was on a fire insurance policy, and on December 6, 1928, he had verdict and judgment for $1,500 and accrued interest. Time within which to settle a bill of exceptions and/or move for a new trial was extended by successive court orders to May 13, 1929. A motion for a new trial, filed May 4, 1929, was noticed for hearing and denied May 13, 1929. On the same day, by consent of counsel, the motion of the insurance company for a further extension of time within which to settle and file a bill of exceptions was heard by the trial judge. This motion was also denied on the day it was heard. Mandamus is here sought to compel the vacating of the order thus entered. In its brief, petitioner for the writ of mandamus states:
“It was our contention that under our practice, in a case in which the time in which to move for a new trial and/or settle a bill of exceptions had been regularly extended, that if a motion for a new trial is presented upon the last day of the extended time and denied, that as a matter of right, the party whose motion is denied, is entitled to a reasonable extension of time thereafter in which to settle a bill of exceptions. It is our further contention that if we are not correct in our first statement, and that it does rest within the sound discretion of the trial court to grant or deny motion for a further extension of time in which to settle a bill of exceptions, that under the facts involved in the case at bar, the refusal of the trial court to grant a further extension of time in which to settle a bill of exceptions, was a clear abuse of sound discretion upon the part of the trial court.”
Counsel’s first contention above set forth cannot be sustained, when, as here, more than five months is allowed within which to move for a new trial and settle a bill of exceptions and the motion for a new trial is not set for hearing until the last day granted. Then additional time is not a matter of right, in the absence of a showing justifying such delay.
The remaining question is whether this record sustains petitioner’s claim that there was an abuse of discretion. As noted above, judgment was rendered on December 6, 1928. The stenographer’s transcript, consisting of 166 pages of double-spaced typewritten matter was furnished on the 17th day of January, 1929. The usual 20 and 60 days were granted, and thereafter time within which to settle the bill of exceptions was twice extended, the last order granting time to May 13, 1929. From January 17th to May 13th, practically nothing seems to have been done aside from the preparation and presentation of the motion for a new trial. This motion appears in the record, and. from its contents it is obviously a motion which ordinarily could have been submitted to the court within a week after judgment, or at least within that time after securing the transcript of the record. The last order extending time was entered April 25, 1929. It was vigorously opposed by Mr. Sanford’s counsel. Notwithstanding this, the insurance company took no steps in the settlement of the bill of exceptions within the additional time granted, and did not notice the hearing of its motion for a new trial until the last day.' There is something of a showing as to the inability of counsel to devote their time to the preparation of the bill of exceptions in this case. The details of this showing we will not attempt to recite, but we are of the opinion that it is inadequate. The bill of exceptions could easily have been prepared in half the time allowed. We cannot avoid the conclusion that the delay in this case is inexcusable.
Petitioner has cited and relies upon Harper v. Wayne Circuit Judge, 155 Mich. 543, and Kaiser v. Wayne Circuit Judge, 162 Mich. 247. The facts bearing upon petitioner’s diligence in the instant case are decidedly different from those in the Harper Case. There the motion for a new trial was filed on the tenth day after judgment, and less than 30 days during which the trial judge was available intervened between the filing and hearing of the motion. After the motion was made and filed the opposing party could have noticed it for hearing as well as the mover. Clearly the litigant presenting the motion was not guilty of laches. In the Kaiser Case, supra, mandamus issued to compel the vacating of an order extending time within which to settle a bill of exceptions; and it is therein stated :
“A party has 20 days after denial of motion for a new trial in which to settle a bill of exceptions; the motion for a new trial having been seasonably made and brought on for hearing in a reasonable time.”
The difficulty here is that the motion for a new trial was not seasonably made; and this militates decidedly against the contention of the insurance company that the denial of its motion for additional time within which to settle the bill of exceptions was an abuse of discretion. It is urged unless an appellant is entitled to further time after the denial of a motion for a new trial, it will always be necessary to proceed with the settlement of the bill of exceptions pending the motion for a new trial and thus incur unnecessary expense in the event a new trial is granted. It may be conceded that an abuse of discretion might be found in a case wherein there was a denial of time within which to settle a bill of exceptions after the disposition of a motion for a new trial which was timely made. But we would not be justified in applying the rule of such a case to the record now before us.
The writ is denied, with costs.
Fead, Butzel, Wiest, Clark, Potter, and Sharpe, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
Fead, J.
This is a bill to set aside' a judgment rendered in justice’s court in the city of Detroit.
The testimony is undisputed that, on August 20, 1925, an adjourned day of the case in justice’s court, counsel for the parties orally agreed to a continuance, that upon suggestion of Mr. Burleigh, attorney for defendants herein, Mr. Lane, attorney for this plaintiff, went to Mr. Burleigh’s office, drafted a stipulation of continuance, signed it, and left it with a clerk for Mr. Burleigh to sign and file. The stipulation was not filed, but, on the same day, Mr. Burleigh’s partner or associate took judgment in favor of these defendants and against this plaintiff for $500 and costs. Plaintiff and his attorney first knew of the judgment about two weeks after it was rendered, when an officer appeared with an execution.
In his bill, plaintiff alleged irreparable injury unless an injunction be issued restraining levy of execution until he could move for leave to appeal, the time for appeal as of right having expired. The court granted a temporary injunction on that basis. The cash injunction bond was conditioned on leave to appeal being granted. The bill was filed September 10, 1925. Hearing was had September 18, 1928. No motion for leave to appeal was made and no excuse offered for not making it.
The surreptitious taking of judgment in violation of an agreement for continuance is a fraud. 34 C. J. p. 477. Equity has jurisdiction to set aside a justice’s judgment for fraud. Burpee v. Smith, Walk. Ch. 327; Garey v. Morley Brothers, 234 Mich. 675; 34 C. J. p. 440; 35 C. J. p. 680. But the jurisdiction is to be sparingly used. Blazewicz v. Weberski, 234 Mich. 431. The jurisdiction will not be exercised where plaintiff has been negligent in conserving'his rights at law (Weisman v. Newton Beef Co., 154 Mich. 511; Kramer v. Schulte, 154 Mich. 632), nor where he has an adequate remedy at law (34 C. J. p. 434, 35 C. J. p. 681), as by appeal, error, or certiorari (34 C. J. p. 436).
If plaintiff-had presented a motion for leave to appeal and had established the facts which he has here substantiated, the motion would have been granted. Capwell v. Baxter, 58 Mich. 571. The remedy at law was adequate. No reason was offered for failure to pursue it. On the contrary, the equities are against plaintiff in this respect. His failure to move for leave to appeal, after obtaining an injunction for that purpose, was a virtual breach of faith with the court.
The decree is reversed, and one will be entered dismissing the bill of complaint, with permission to defendants to proceed upon the injunction bond, and with costs.
Wiest, C. J., and Btjtzel, Clabk, Potter, Sharpe, and North, JJ., concurred. McDonald, J., took no part in-this decision. | [
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] |
Sharpe, J.
This ease was tried by the court without a jury. Findings of fact and conclusions of law were filed. But for their length, which was induced by amendments proposed, we would adopt them as our own. From them it appears:
In 1928, the plaintiff, a resident of Grand Rapids, was the representative of several manufacturers of factory engines and machinery as a. salesman in Michigan on a commission basis. One of the firms so represented by him was Hooven, Owen, Rentschler Company, of Hamilton, Ohio.
Plaintiff received an inquiry from the Campbell, Wyant & Cannon Company, of Muskegon, for a Diesel engine, and wrote the Hooven company relative to it, and was advised by letter that they could not furnish it hut had referred his letter to. the defendant company, manufacturers of such engines, at Mt. Vernon, Ohio. This company wrote plaintiff on July 20,1928, giving him a full description of the engine manufactured by them and the price of it, stating therein:
“In the price we have made, we have added 5 per cent, to our standard price which we will be willing to allow you for resale.”
On July 26th plaintiff wired defendant to send a description of their engine to the Campbell company at Muskegon. This the defendant did, saying they were sending it at the request of plaintiff, but stated no price therefor. Soon after, plaintiff wrote defendant:
“I expect this job will come up soon after the 5th of August. The C., W. & C. Corp. will advise me and I will wire you if I think a man from your office will help put this job over.”
Defendant replied to this:
“If you need any one from here to help you out, let us know and we will have some one there as soon as possible.”
On August 20th, plaintiff wired defendant to “substitute gas for oil engine. * * * Wire price with and without air compressor.” Defendant replied by wire, giving the information asked, and saying, “All f. o. b. Mt. Vernon including your five per cent, protection. ’ ’ This information, except that relating to plaintiff’s compensation, was communicated by plaintiff to the Muskegon company by letter. This was followed by a conversation between plaintiff and defendant by telephone, followed by a lengthy letter to plaintiff more particularly describing the gas engine. This letter concluded:
‘ ‘ The above prices all include 5 per cent, commission to you and as we are greatly interested in this inquiry and since it so closely fits our standard engines and compressors, we will be glad to have one of our engineers call upon you and assist in making the sale just as soon as you think the job is active.
“Please let us know if there is anything more we can do in the matter at this time.”
At plaintiff’s request, Mr. Shubring, representing defendant, came to Grand Eapids, and he and plaintiff went to Muskegon and had a conference with the engineer of the company. Later, another representative of defendant accompanied plaintiff to Muskegon.
The Muskegon company gave a written order for two Diesel engines on November 23, 1928, to two representatives of the defendant, who were sent to that city by defendant for the purpose of securing it. The plaintiff had no knowledge of the sale until several days later.
Charles T. Hildebrandt, the plant engineer of the Muskegon company, testified that plaintiff visited their plant at least once every other week while the deal was pending, urging the purchase of an engine from the defendant, and that he several times suggested to defendant’s representatives
—“if there was any commission or any credit for the sale of that engine, provided we bought the engine, I thought that Mr. MacMillan should have it because he had been working on this deal for several years,” and that “they made no comment on it at all.”
Defendant’s claim is thus stated:
“He (plaintiff) failed to make any sale of this specific machinery whereupon his contract relations with defendant were at an end.”
Defendant also relies on the fact that plaintiff, during the pendency of the negotiations, was desirous of securing an agency connection to handle defendant’s engines in the western territory of Michigan, and on defendant’s reply by letter thereto, in which it said: “We could only recognize you in proportion to the amount of service rendered and this must necessarily be left in our hands to determine,” and draws the inference therefrom that the deal with the Muskegon company “was not excluded from the terms and conditions of this letter. ’ ’'
There is nothing in the correspondence relating to plaintiff’s request for an agency to indicate that the deal then pending with the Muskegon company was considered by either party. As to this, plaintiff had a contract fixing the compensation he should receive. The proofs justified the finding of the court that he was the procuring cause of the sale made, and, if so, he was entitled to the percentage of the selling price agreed upon. Case v. Rudolph Wurlitzer Co., 186 Mich. 81. It was not necessary, to support his recovery, that he should conclude the sale in person. Reade v. Haak, 147 Mich. 42. His authority had not been revoked, but, even if it had, the defendant could not thereby avoid payment. Heaton v. Edwards, 90 Mich. 500; McGovern v. Bennett, 146 Mich. 558. Neither does the fact that defendant’s representatives consented to make some slight change in the type and equipment of the engine, unknown to plaintiff, deprive him of his right to recover. McKinnon v. Gates, 102 Mich. 618.
The court also allowed plaintiff $15 per day, and $10 per day for the use of his automobile, for three trips made by him from Grand Rapids to Muskegon at the request of and with representatives of the defendant to interview other prospective purchasers in that city. No claim is made that the allowance is unreasonable, but defendant claims the service was rendered voluntarily and without promise or expectation of remuneration therefor. It was rendered on request, and, while we find no express promise to pay therefor, we thinlc the court was warranted in implying a promise and in allowing the claim.
The judgment is affirmed.
Wiest, C. J., and Butzel, Clark, Potter, North, and Fead, JJ., concurred. McDonald, J., did not sit.' | [
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Sharpe, J.
In a proceeding by the plaintiff before a circuit court commissioner to recover possession of real estate held by defendants Mr. and Mrs. Kupalian under a land contract, they insisted that such contract was in legal effect a mortgage. A jury was impaneled, and so found, and a judgment of “no cause of action” was entered.
Plaintiff thereafter filed the bill of complaint herein, praying for the foreclosure of the instrument as a land contract, and had decree therefor. The attorneys for the Kupalians, who alone appeal, say in their brief that the question involved is whether the decision of the commissioner is “res judicata and binding on the trial court.”
The claim of the Kupalians before the commissioner was one of title. If the land contract was in legal effect a mortgage, then they were the owners of the premises subject thereto. The- commissioner’s court was without jurisdiction to determine this question. • In Northern Michigan Building & Loan Ass’n v. Fors, 171 Mich. 331, 332, it was said:
‘ ‘ This court has repeatedly held that the question of title could not be litigated in an action based upon these sections of the statute. It must have been apparent long before the close of the testimony that defendant claimed the right to possession of the premises because of his ownership of them. When it so appeared, and that title was necessarily involved, the proceedings should have been dismissed upon defendant’s motion.”
The judgment there rendered is in no way a bar to the present suit. Axford v. Graham, 57 Mich. 422.
, The decree herein was entered on November 19, 1928. As the time limited for redemption has long since expired, a decree may be here entered affirming such decree, with costs to appellee against appellants, and extending such time for 30 days from the filing of this opinion, after which sale may be had as provided for in the decree. Remand may be had for further proceedings thereunder.
Wiest, C. J., and Butzel, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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Wiest, C. J.
Plaintiff had a stiff finger, resulting from an injury. She visited the Ford hospital in the city of Detroit, and was advised by Dr. Peabody, defendant herein, that an operation would be beneficial. Defendant is a member of the staff of the hospital, and had charge of the assigning of such cases to assistant doctors. Plaintiff’s case was assigned to Dr. Falláis. The day of the operation Dr. Falláis and Dr. Peabody were otherwise engaged, and Dr. Johnston was assigned to perform the operation. An anesthetic was administered: Dr. Johnston opened the finger and palm of the hand and discovered that the superficial and deep tendons adhered together and to separate them it was necessary to sheathe each in added fascia. Upon discovering this, Dr. Johnston summoned Dr. Peabody, and the two doctors discussed the need of added fascia, and Dr. Peabody agreed with Dr. Johnston that it would be necessary, in order to obtain the best results, to remove some fascia■ from a limb of plaintiff and transplant it to her hand, and also told Dr. Johnston to go ahead and perform the operation in that manner. The plaintiff was unconscious, and, therefore, not consulted, and Dr. Johnston made an incision in her right thigh, obtained therefrom fascia lata, and sheathed the tendons of the finger.
Plaintiff claims that the operation on her thigh resulted in a muscle hernia, causing her pain and disability, and brought this suit against the Ford hospital and Dr. Peabody to recover damages.
The trial judge discharged the Ford hospital, did not grant the motion in behalf of Dr. Peabody for a directed verdict, and submitted the case to the jury, and plaintiff was awarded a verdict of $10,000 for the injury to her leg.
The declaration counted on malpractice, and an assault and battery or trespass to plaintiff’s person by an unauthorized operation upon her thigh. The proofs were directed to the latter count, and the recovery was for an assault and battery. After verdict defendant renewed his motion and asked for judgment in his favor non obstante veredicto, and also moved for a new trial. The court entered judgment for defendant, and plaintiff reviews by writ of error. Defendant also assigns error upon the trial, to be considered only in case the judgment is not affirmed.
Accepting plaintiff’s claim as true, Dr. Johnston, in operating upon her thigh without her consent, committed a trespass to her person for which he would be liable to respond in damages in an action for assault and battery. Authority to this effect is ample.
The governing rule, supported by modern authority, is well stated in 48 C. J. p. 1130:
“Where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition, and no emergency exists making it impracticable to confer with him, his consent is a prerequisite to a surgical operation by his physician ; and a surgeon who performs an operation without his patient’s consent, express or implied, commits an assault for which he is liable in damages.”
An exception to the rule exists, and the extent thereof is also stated in 48 C. J. p. 1131:
“Where an emergency arises calling for immediate action for the preservation of the life or health of the patient, and it is impracticable to obtain his consent or the consent of anyone authorized to speak for him, it is the duty of the physician to perform such operation as good surgery demands, without such consent. And if, in the course of an operation to which the patient consented, the physician discovers conditions not anticipated before the opera tion was commenced, and which, if not removed, would endanger the life of the patient, he will, although no express consent be obtained or given, be justified in extending the operation to remove and overcome them. * * * The implied appointment of the surgeon as the legal representative, during the period of unconsciousness, of a patient who has appointed no other person, does not give the surgeon a license to operate on the patient against his will or by subterfuge, or to perform a different operation than that consented- to, or one involving risks and results not contemplated. ’ ’
See Mohr v. Williams, 95 Minn. 261 (104 N. W. 12, 1 L. R. A. [N. S.] 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303); Pratt v. Davis, 224 Ill. 300 (79 N. E. 562, 7 L. R. A. [N. S.] 609, 8 Ann. Cas. 197); Rolater v. Strain, 39 Okla. 572 (137 Pac. 96, 50 L. R. A. [N. S.] 880).
The stated rule exacts careful diagnosis by the surgeon, and discovery, as far as possible, of the nature and extent of the proposed operation and consent thereto by the patient.
The operation on plaintiff’s finger was not a major one, and the disclosure, when the finger and palm were opened, presented no emergency authorizing an operation on her thigh to obtain tissue for the finger. The case does not present the essentials of an implied authority arising from discovery, while performing an operation, of a condition so serious to the life or health of the patient as to demand a more extended or a further operation without consulting the patient. Good surgery undoubtedly required the acquisition of tissue to sheathe the tendons in the finger and palm, but this did not authorize the taking of tissue for that purpose from the thigh of plaintiff without her consent. The operation on plaintiff’s thigh constituted an assault, not justified by any emergency, and not authorized by plaintiff or within the implied appointment of the surgeon employed to operate upon the finger.
The question here is not whether good surgery justified the operation upon the thigh to obtain the fascia lata. An unauthorized operation may be well performed and in line with good surgery and still afford no excuse for such a trespass to the person.
Under, the evidence, Dr. Johnston and Dr. Peabody are jointly and severally liable; Dr. Johnston for performing an unauthorized operation, and Dr. Peabody for counseling and advising him to perform the same. We confine our opinion, relative to the rights of a patient and the duty and liability of surgeons, to the particular case before us.
The court was in error in entering judgment for defendant. This brings us to consideration of the errors assigned by the defendant.
The court was not in error, at the close of the proofs, in refusing to direct a verdict in favor of the defendant. Defendant was not entitled to an instruction that the jury consider “solely the question, as to whether the removal of the fascia was justified under the testimony of the surgeons.”
What we have said disposes of the other requested instructions refused by the court.
There was no error in the instruction to the jury that, without the consent of the plaintiff, the surgeon had no right to cut into her thigh and remove some fascia lata.
In the motion for a new trial, defendant made the point that the. verdict was excessive in amount. The court entered judgment in favor of defendant, and, therefore, found no occasion to pass upon the question of whether the verdict was excessive. We think the verdict excessive. This is best illustrated by the instruction to the jury upon the subject of damages. We quote the instruction:
“Now, what are the damages? The testimony in this case, it seems to me, is' not particularly satisfactory on this subject of damage. There can be no recovery in this action for any future damages. In other words, there is no testimony in this case that this plaintiff will continue to suffer pain because of this operation; there is no testimony in this case as to the length of time she may be prevented by reason of this operation from earning her livelihood. I think, on the contrary, that it appears from the evidence, and it is not disputed by the plaintiff, that this plaintiff has to some extent, at least, been able to earn money. I think it appears beyond a reason-' able doubt that at the present time she is operating concessions and has operated concessions within the last year or such matter, but there is no testimony hereupon which I would be justified in submitting to you the question of damages so far as future loss of earning’s is concerned. It would be entirely too speculative for me to permit that to be done. Therefore, the only damages which you can allow to the plaintiff are such damages as she may have sustained by reason of this operation from the time of it until the present time. I do not think there is any testimony in this case, members of the jury, that would justify me in submitting to you any questions of damage by reason of the injury to the hand, because there is no claim here that the operation was not done skilfully; there is no complaint made as to that, and, as I have- said, the only complaint is of the operation performed to her without her consent, but there is no complaint as to the skill with which the operation on her hand was performed. Therefore, you may not take into consideration, in awarding damages, any claim for injury to her hand or to her finger. As I have said, there is no testimony in this record relative to future earning capacity of the plaintiff, Yera Franklyn, therefore I charge you, that you can only take into consideration such loss of earnings as the plaintiff has sustained from the date of her operation to the present time, and not take into consideration any future loss of earnings whatsoever. As I view this case there are two elements of damages, which you would be justified in considering this case, that is, the amount that she should be allowed for pain and suffering, if you find that she has endured any pain or suffered any, and also such an amount as would compensate her for any loss of earnings by reason of this operation from the time of it until the present time.
“Now, damages for pain and suffering are not easily computed. It is not such damages as you could award in a contract action, for instance, so many bushels of wheat at so much a bushel, nevertheless, if the plaintiff is entitled to recover at all, and if she has suffered anything for the past two years, she is entitled to be compensated for it, and what you should allow to her, therefore, is such a sum as under the evidence in this case will fairly compensate her for such pain and suffering as you find under the evidence she has suffered. If you find that she has suffered no pain, of course, you cannot allow her anything, but, if, under the evidence of this case, you find that she has endured pain and suffered by reason of this so-called hernia of the leg, and further find that that hernia was caused as a result of this operation, then it would be your duty to allow her, in awarding damages, such an amount as you in your sound judgment believe will fairly compensate her for that. As to the other element of damages, you would allow her such sum as you find she has lost in earning capacity. Any wages or earnings since the date of the operation to the present time, that is, any loss of wages or earning capacity since the date of the operation to the present time,- you would allow her for that such a sum as you find under the evidence she has lost by reason of being laid np and unable to work, if you find suck to be tbe ease — because of this injury.”
Tbe operation was performed on tbe 14th day of December, 1925, and the trial was commenced on the 14th day of September, 1928. The instruction limited the jury to an award of damages during a period of two years and nine months: During that period plaintiff suffered from a muscl’e hernia at the place where the fascia lata was removed from her thigh, and she claims that this occasioned her pain by protrusion of the muscle, when standing upon her leg, and nervousness caused by the quivering of the muscle. Considering the limited period, and having in mind the evidence bearing upon the question of the suffering occasioned plaintiff by the muscle hernia and the extent to which the hernia incapacitated her from pursuits she otherwise would have been able to follow, and the effect thereof upon her earning capacity, we think the jury awarded an excessive amount of damages. For this reason the defendant is entitled to a new trial.
The judgment notwithstanding the verdict is reversed, and a new trial is granted defendant, the costs of this court to abide the result of a new trial.
Butzel, Clark:, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
Btttzel, J.
On January 3,1927, the Peoples State Bank for Savings, plaintiff herein, was suing Harry Bloch, I. M. Bloch, and Sol Bloch, defendants herein, in the circuit court of Chicago, Illinois. The suit was brought on a promissory note and bond of guaranty accompanying it. The suit was settled in Chicago by defendants paying a considerable amount of cash and also giving plaintiff a note for $2,241.17. This note is dated January 3, 1927, is payable in three months after date, and contains a power of attorney to confess judgment against the maker in the event of a default. This form of judgment note has been frequently used and its legality upheld in the State of Illinois. I. M. Bloch was the maker of the note, and Harry Bloch, defendant in the present case, and Sol Bloch were the indorsers. Immediately above the indorsements on the reverse side of the note, the following words appear: \
“It is understood that the indorsers on this note are jointly liable.”
The testimony shows that C. Lysle Smith, a practicing attorney in Chicago, not only had charge of the previous lawsuit and settlement on behalf of the: plaintiff bank, but also was retained to collect this note in Chicago. There is no evidence whatsoever that he was authorized to do anything else except to collect the note and bring suit, if it should become necessary. His testimony shows that the note was duly presented for payment, protested for nonpayment, and notice thereof sent to indorsers. Harry Bloch, who is the only defendant who was served, or appeared, in the present suit, claims that the words hereinabove quoted were written on the note without his knowledge or consent and after he had indorsed it; further, that the note was not presented for payment, and that he received no notice of its dishonor. After the note was protested, judgment was ■ taken in Chicago on ,the power of attorney contained in the note against I. M. Bloch, the maker. Subsequently, Harry Bloch came to Smith’s office and attempted to negotiate a settlement of the judgment and the note. Harry Bloch stated that he was tired of the entire matter, and that he wanted to pay half of the note on that day and be released from further liability. He further stated that his son Sol would pay the other half of the note the following day. Harry thereupon paid one-half of the judgment rendered on the note and certain court costs. His son Sol never paid anything. When Harry paid half of the note, Smith, without any authority whatsoever, executed the following instrument: soever, arising out of the indorsement of the said Harry Bloch on the note of I. M. Bloch in the amount of $2,241.17, dated January 3, 1927, payable three months after date.
“Know all men by these presents, that Peoples State Bank for Savings, Muskegon, Michigan, by C. Lysle Smith, its attorney, does hereby remise, release and forever discharge Harry Bloch, his heirs, executors and administrators, of and from all manner of actions and causes of action, suits, debts and claims whatsoever, in law or in equity which the said Peoples State Bank for Savings, Muskegon, Michigan, ever had, now have or hereafter may have for or by reason of any cause, matter or thing, what-
“And the-said C. Lysle Smith, as attorney for Peoples State Bank for Savings, Muskegon, Michigan, does hereby undertake and agree to assign to Harry Bloch and Sol N. Bloch, the judgment herein-before entered on April 7, 1927, in the municipal court of Chicago, as case No. 1411947, Peoples State Bank for Savings, Muskegon, Michigan, v. I. M. Bloch, and to deliver the said assignment and said note to Mr. Sol N. Bloch or to Mr. Jesse Marcus, as attorney, immediately upon the payment by Mr. Sol N. Bloch of his proportionate share thereof.
“Dated at Chicago, this 16th day of May, A. D. 1927.
“Peoples State Bank eor Savings, “Muskegon, Michigan, “By C. Lysle Smith, “Its Attorney.”
Smith sent the amount of money received, less his fees, to plaintiff bank, but did not say anything whatsoever in regard to giving defendants a release. The bank had never authorized him to give it, and did not know of it when it received the money, which it credited upon the note. In fact, the bank did not learn of the existence of the so-called “release” until shortly before the suit was begun, a considerable period after it had received the money. Suit was brought to recover the balance of the note from Harry Bloch, who seemed to be the only responsible defendant. He relied in his defense on this “release,” as well as the other defenses hereinbefore set forth. The attorneys for defendant made a motion for a directed verdict for defendant, but the trial judge left all of the questions raised to the jury, but reserved tbe question of the effect of the release until after the jury’s verdict. The verdict was in favor of the plaintiff bank for the full balance due on the note. This disposed of all questions except the authority of the agent-attorney to give a release upon payment of one-hálf of the judgment bond on the note.
A motion was made by the attorney for the defendant for judgment non obstante veredicto. The circuit judge filed a written opinion in which he held that defendant Harry Bloch had been released from all liability by the execution and delivery of the release signed by Smith as attorney for the plaintiff and the retention of the moneys by the plaintiff. He entered judgment for defendant, notwithstanding the verdict. All the question's in the case have been disposed of by the verdict of the jury .with the exception of whether Smith had the authority to give the release, and whether the plaintiff bank had not ratified the unauthorized acts by acceptánee of the money and the failure to return it to defendant Harry Bloch prior to the institution of this suit. The defendants claim some other errors, which in no way could be prejudicial. The sole question is whether an attorney retained to collect a note and bring suit if necessary has the power without special authority to release a debtor from liability upon receipt of one-half of the .amount of the claim, and whether, when he transmits it to his principal without notifying him of the release, the latter is entitled to retain the money and credit it on the past-due indebtedness of the debtor, or whether he must first return it to the debtor before he may maintain an action. We believe the circuit judge was in error in rendering a judgment notwithstanding the verdict.
An. attorney employed to collect a note lias no implied authority to discharge a debtor from liability upon receipt of a lesser amount than the amount due. The rule is well established that, without express authority, an agent or an attorney may not compromise or settle a claim or release a debtor from his obligation without receiving the full amount due. The burden of establishing the authority of the agent or a ratification by plaintiff is on defendant, the one claiming the authority. Hurley v. Watson, 68 Mich. 531; Fetz v. Leyendecker, 157 Mich. 355; Hall v. Presnell, 157 N. C. 290 (72 S. E. 985, 39 L. R. A. [N. S.] 62, Ann. Cas. 1913 B, 1293). When a payment is made in money, and the amount thereof is credited on a claim, it does not constitute a ratification of an unauthorized act in releasing the debtor from the balance of the claim. United States v. Beebe, 180 U. S. 343 (21 Sup. Ct. 371).
While all the transactions leading up to the present case took place in Illinois, with the exception of the receipt of the money by plaintiff without knowledge of the release, there is no conflict of laws; the rule being the same in Michigan as it is in Illinois. An Illinois case is, however, helpful, both on the questions of the lack of authority of the agent to release a debtor and the noncreation of a ratification by acceptance of the moneys by the principal without knowledge of the release. Danziger v. Pittsfield Shoe Co., 204 Ill. 145 (68 N. E. 534), was an action for goods received. The defendant claimed that he arrived at a settlement of the case by giving the plaintiff’s attorney a check for a portion of the amount* and returning a portion of the goods. He relied on the rule that acceptance of a portion of a sum due, if that amount is in dispute, will amount to a settlement of the case. Judgment for plaintiff for the amount claimed by it to be due was affirmed, the court saying:
“The authority of an attorney to prosecute a suit does not involve authority to compromise it. Before an attorney can compromise a suit, he must have ;a special authority for that purpose (Wetherbee v. Fitch, 117 Ill. 67 [7 N. E. 513]). Where an attorney, employed to prosecute or defend a suit, makes an -agreement for the settlement of the same out of court, and without making the agreement a part of the decree or judgment in the suit, the client will not be bound by such agreement, or settlement, without proof of authority in the attorney to bind the client, . or acquiescence on the part of the client after knowledge of the facts ; and, in such case, there is no presumption of authority, but the burden of proof rests on the party alleging authority to show that fact (Brooks v. Kearns, 86 Ill. 547). ‘Even where attorneys are employed to sue for and collect debts of their clients, the attorneys, without special authority, can lawfully do no more than obtain judgment, have execution issued, receive and receipt for the proceeds. They cannot compromise the debt, give day of judgment, receive a less amount in satisfaction, or receive in payment anything but money’ Nolan v. Jackson, 16 Ill. 272; Lochenmeyer v. Fogarty, 112 Ill. 572). Nor can it be said that there is any ratification of such contract of settlement by the client, unless it is shown that the client has full knowledge of the facts.”
On the question of whether retention of the proceeds precludes suit, the same court further stated, at p. 150, 204 Ill. (68 N. E. 536):
“No offer was made to show that the information that the check was accepted or received by Bicknell in alleged full settlement...was communicated to the appellee’s attorneys, or to the appellee, or;that either appellee or its attorneys had any knowledge of the alleged circumstances, surrounding the giving of the check; or that there was any ratification by the appellee. There were no circumstances proposed to be proven, from which such ratification could be inferred. An offer was made to show that Biclmell was told that the check and goods were tendered in full settlement of the account, but no offer was made to show that such information, if given to Bicknell, was communicated to appellee’s attorneys, or to appellee. The fact that appellee accepted the check and credited it upon appellant’s account was no evidence of any ratification of a settlement. The correspondence between the parties, together with their evidence, shows clearly that appellant was in the habit , of remitting checks to the appellee and receiving credit for the same. There was no offer to show that appellee received this particular check, and gave appellant credit for it, with knowledge that it had been tendered as a settlement of the account. For the reasons above stated, the trial court committed no error in excluding the offered evidence in regard to a settlement.”
An agent has no implied authority to compromise a liquidated claim or release a debtor upon payment of less than the amount due. The acceptance of such lesser amount as a payment on account by the principal without knowledge of such unauthorized compromise or release does not release the debtor except to the extent of the amount paid.
The judgment of the lower court is reversed, with costs to plaintiff. The case is remanded to the lower court with instructions to enter judgment for the full amount of plaintiff’s claim, less the amount paid plaintiff’s attorney.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Butzel, J.
Very early in the evening or late in the afternoon of October 30, 1925, plaintiff’s decedent was driving an automobile in a northerly direction on Division road, a paved thoroughfare in the village of Springwells, a suburb of Detroit. Defendant’s double tracks running in a southeasterly and northwesterly direction cross the road. There are no obstructions to the full view of the tracks from any part of Division road for a distance of 300 feet south of the crossing, from which direction decedent was coming. Whether it was dark or just becoming dusk is in dispute. There were neither lights nor gates at the crossing. There was a warning signal, consisting of two wooden cross bars with appropriate words, on the side of the street a short distance south of the tracks. One of plaintiff’s witnesses testified that he had driven 75 or 100 times with decedent on Division road across the tracks. Decedent was familiar with the neighborhood.
Plaintiff’s claim is that on the southerly tracks a freight train approached from the northwest at a moderate rate of speed but without the bell being rung or the whistle being blown; that decedent had brought his car to a stop with the front end thereof on the southerly tracks while waiting for an approaching passenger train to pass; that while thus waiting defendant’s freight .train came silently across the road and struck decedent’s automobile. Decedent was thrown out of his automobile and suffered severe injuries. He was taken to Providence Hospital in Detroit, some distance from the accident. The hospital records show he arrived there at 6:50 p.m. He died two and a half days later at the hospital without ever regaining consciousness. Suit is brought under the survival act (3 Comp. Laws 1915, § 12383 et seq.).
Plaintiff in his declaration claims that decedent was free from all negligence, and that defendant’s negligence consisted of its failure to blow the whistle, or ring the bell of the locomotive. Defendant claims that it blew a whistle, rang its bell, and that its headlights were burning brightly, and that it did not discover decedent’s peril until after the accident.
Plaintiff produced no eyewitnesses to the accident. Mr. and Mrs. John Gampp, who were driving their car in the same direction decedent had been traveling, arrived at the crossing a few moments after the accident occurred. Mr. Gampp testified that, accompanied by his wife, he left the downtown business district of Detroit at 6:00 p.m., and that when he arrived at a distance of from 200 to 250 feet south of the tracks, at the time the freight train crossed the street, it was very dark; that he neither heard the whistle nor bell of the locomotive of the freight train, nor did he see any light from it.- He, however, testified that his attention was called to the freight train by the “flash” as it came across the road. He further testified that he did not see decedent’s automobile nor its- tail light, nor any reflection of its headlights, on account of the darkness. Mr. Gampp further testified that it was two or three minutes after he arrived at the crossing before the passenger train came by.
Mrs. Gampp testified that it was 5:30 p.m. when they left the downtown district; that she saw the flash of light come across the road when they were 300 feet south of the tracks, and that she saw the train all the time after she saw the flash. She testified that she did not hear any bell ring or whistle sound, but in her re-direct examination she admitted that she heard the whistle.
At the conclusion of plaintiff’s testimony the trial judge refused to direct a verdict. Defendant thereupon produced the engineer and the head brakeman of the freight train. The latter was sitting in the fireman’s seat at the time of the accident. They both testified that it was dusk but not dark. The engineer testified that the lights were burning brightly at the time the train approached Division road; that the whistle was blown and the bell was rung. He further testified that he saw decedent’s automobile coming along the street 50 feet or more south of the tracks. The brakeman corroborated the engineer’s testimony in regard to the lights, the sounding of the whistle, and the ringing of the bell.
The physical condition of the engine and automobile would indicate that decedent drove his automobile into the front of the engine, for a cylinder cock, the casing on the cylinder, and a small piece of the footboard were broken off the side of the engine near the front, and the front end of the automobile was crushed back.
The jury brought in a verdict of no cause of action in favor of defendant. Plaintiff appealed from the judgment rendered thereon.
In answer to plaintiff’s various assignments of error, defendant claims that a verdict should have been directed in its favor upon the conclusion of plaintiff’s testimony, and therefore we should not even consider plaintiff’s claims of error. Plaintiff’s testimony was far from convincing. However, upon a motion to direct a verdict the testimony must be considered most strongly in plaintiff’s favor, and there was just barely enough to submit the case to the jury. The entire record shows by an overwhelming preponderance of evidence that the verdict of the jury was proper.
Plaintiff complains that the record is in error wherein it recites the testimony of the brakeman, who was acting as fireman at the time of the accident. He was asked the following question:
“Q. And whether or not the lights were burning brightly at the time the train approached and you went over Division road?”
He answered:
“Yes, it was.”
■The original transcript of the record prepared by the stenographer used the word “particularly” instead of “brightly.” The word appears as “brightly” in the bill of exceptions. Defendant’s counsel claim that the stenographer mistook the word “particularly” for “brightly,” and at the suggestion of defendant’s counsel the record was amended and' plaintiff’s counsel wrote to defendant’s counsel accepting the amendment to the bill of exceptions showing the corrected word. The bill of exceptions as settled and certified to by the trial judge gives the word as “brightly” and not as “particularly.” This court will not revise the bill of exceptions as approved by counsel and the trial judge. Bates v. Kitchel, 166 Mich. 695.
Plaintiff claims that the judge should not have permitted the following remarks to be made by defendant’s counsel in his address to the jury:
“Mr. Shields: It is the duty of the judge to pass on questions of law, and his honor has done that. If by chance .he has made an error the Supreme Court corrects him upon application of the aggrieved party. It is the function of the jury, under their solemn oath, to dispose of the questions of fact presented by the testimony, and if it should so happen •that the jury went wrong, bringing in a verdict which is contrary to the greater weight of the evidence, then that verdict must undoubtedly be set aside under the law, on the application of the aggrieved party, and what has been accomplished.
“Mr. Beilley: I submit that that is not proper argument.
“Mr. Shields: I submit it is.
“The Court: Go ahead.”
We can find no prejudicial error in this statement, although it would have been better for counsel to have confined Ms remarks to the facts and the law as applied to them instead of to the method of trial of the case. Terrill v. Traction Co., 214 Mich. 478.
Error is further assigned on account of the following statement made hy defendant’s counsel in his address to the jury:
“You know from your experience as jurors, as men and women of affairs in life, that every time there is an accident at a railroad crossing, in every one — the whistles did not blow, the bell did not ring, and, if it was at night, the lights were not lighting. In every single case I am in those are the stock allegations.”
This statement was improper. Counsel for plaintiff made no objection to it so that it could have been corrected by the trial judge or the jury instructed not to pay any attention to it. Inasmuch as counsel for plaintiff did not in any manner object to the statement at the time it was made, they can not now complain. It has been repeatedly held that, if counsel in their argument make improper statements, the attention of the court should be called to it by counsel on the other side. If they do not do so, they waive their right to objection, unless the statement is so extremely prejudicial that even a correction by the court would not undo the harm. Frequently counsel in the heat of the argument make statements which constitute error, but they can be corrected by the trial judge if his attention is called to them. The opposite party may not permit such statements to go unchallenged and then on account of them seek a reversal of the case in this court. Freeman v. Hoag, 217 Mich. 587; Habitz v. Railroad Co., 170 Mich. 71.
Plaintiff claims further error on account of the charge of the trial judge in that he stressed the fact that if the headlight of the locomotive was burning plaintiff could not recover. Plaintiff claims that all of the acts of negligence he alleges defendant was guilty of should have been submitted to the jury, and that the court should not have stressed just one act of negligence.
Plaintiff seems to rely upon Justice Champlin’s opinion in the case of Thomas v. Railway Co., 86 Mich. 496, only an excerpt from which is given in plaintiff’s brief. A careful reading of the entire opinion will show that it is not applicable to the present case. In that'case the defendant railway company was sued for running its train at an, excessive rate of speed without giving any signals of its approach, etc., all of which together, it was charged, constituted gross negligence. Justice Champlin held that in order to constitute the gross negligence charged, it was necessary to prove that defendant was guilty of all of the acts of negligence charged in the declaration. Justice Morse, in an additional opinion filed in the same case, held that if all these acts of negligence were not proven, and it would appear that plaintiff had warning’ of the approach of the train, he could not recover, on account of his contributory negligence. In both opinions the judgment of the lower court against the railway company was reversed and a new trial ordered.
In the present case there is a question of whether it was so dark that plaintiff’s decedent could not have seen the train approaching. Only one of plaintiff’s witnesses testified that it was that dark. Another testified that she was able to see the train when she was 300 feet distant from it. Defendant’s witnesses testified that it was dusk, but not dark, and that they could see for a distance of several hundred feet. If it had not yet become so dark so that decedent could have seen the train, he would have been guilty of contributory negligence even if the bell had not been rung nor the whistle sounded. If, however, it had become so dark that objects could not be seen from a reasonable distance, if the headlight on the locomotive was lit, plaintiff would be guilty of contributory negligence. He was obliged to look as well as listen. Miller v. Railway Co., 234 Mich. 184; Mills v. Waters, 198 Mich. 637; Gliniecki v. Railway Co., 238 Mich. 361; Kwiotkowski v. Railway Co., 70 Mich. 549; Colborne v. Railway, 177 Mich. 139; Brandy v. Railway Co., 107 Mich. 100; Molby v. Railway, 221 Mich. 419. The court’s charge was complete as to all other questions at issue.
Plaintiff’s other assignments of error refer to the method of computing the amount of damages. Inasmuch as the jury rendered a verdict of no cause of action, it is unnecessary to consider these claims of error.
The judgment is affirmed, with costs to defendant.
Wiest, C. J., and Clark, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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Potter, J.
Plaintiff recovered judgment against defendants, sued out a capias ad 'satisfaciendum, and defendant Levin was thereupon arrested. Some question as to the validity of the writ having been raised, a stipulation was entered into as follows:
“State oe Michigan — In the Circuit Court for the County of Wayne:
“Nathan Sietovitz et al.,' Plaintiffs, vs. “Jacob Levin et al., Defendants.
No. 101,468
“Whereas a writ of capias ad satisfaciendum has been issued in the above entitled cause, and pursuant thereto the sheriff has taken the defendant, Jacob Levin, into custody, and,
“Whereas said defendant claims said writ was irregularly issued,
“Now, therefore, it is hereby agreed as follows:
“First: The plaintiffs will direct the release of said Levin but without prejudice.
“Second: Said Levin shall use his best endeavors to pay, or cause to be paid, said judgment within thirty (30) days.
“Third: If payment is not made within said
time the sheriff may retake said Levin, unless meanwhile the illegality of said writ be established.
“Fourth: Said Levin shall be free at any time to contest the legality of said writ.
“Dated September 5th, 1929.
“Wm. Henry Gallagher, “Attorney for Plaintiffs.
“Butzel, Levin & Winston, “Attorneys for Defendants.”
Defendant Levin was released by tbe sheriff in pursuance of this stipulation. Defendants now move for an order declaring the judgment rendered satisfied for the reason that plaintiff having taken one of the defendants into custody under a writ of capias ad satisfaciendum,, and having thereafter voluntarily released him,- there has, under the law, resulted a full satisfaction of the judgment against all defendants. The trial court refused to grant this motion, and defendants bring error.
It may be conceded that at common law if one joint defendant was taken under a capias ad satisfaciendum, his release, by the consent of the plaintiff, amounted to a satisfaction and discharge of the judgment.
“If a creditor give his debtor in execution permission to go at large, beyond the jail or its liberties, the judgment is absolutely discharged. (Powers v. Wilson, 7 Cow. [N. Y.] 274; Lathrop v. Briggs, 8 Cow. [N. Y.] 171; Ransom v. Keyes, 9 Cow. [N. Y.] 128; Poucher v. Holley, 3 Wend. [N. Y.] 184; Kasson v. People, ex rel. Rease, 44 Barb. [N. Y.] 347.) And this is so, even where the debtor agrees, in consideration -of such permission, that he will still be bound by the judgment, and that the plaintiff may rearrest him on another execution, in case he does not pay the judgment. (Yates v. Van Rensselaer, 5 Johns. [N. Y.] 364; Blackburn v. Stupart, 2 East’s Term Rep. [Eng.] 243; Jaques v. Withy, 1 Term Rep. [Durnford & East’s] 557.) This rule has been maintained, inflexibly, by an unbroken current of authority, from a very early period to the present time.” Bonesteel v. Garlinghouse, 60 Barb. (N. Y.) 338; 2 Tidds Practice (4th Am. Ed.), 1025; Tanner v. Hague, 7. Term Rep. (Durnford & East’s) 420; Vigers v. Aldrich, 4 Burr. (Eng.) 2482; Smith v. Rosecrantz, 6 Johns. (N. Y.) 96; Freeman on Executions (3d Ed.), § 464,
“It is very well settled that if a creditor gives his debtor permission to go off the jail limits or to go at large, the right to imprison is gone, and the debtor cannot be again taken in execution for the same debt. * * * So, too, if the creditor consents to discharge one of several defendants, all of the defendants are discharged.” Vidrard v. Fradneburg, 53 How. Prac. (N. Y.) 339.
There is no presumption plaintiff’s attorney had authority to release and satisfy judgment by consenting to the release and discharge of defendant from custody under the writ. Ransom v. Sutherland, 46 Mich. 489; Probate Judge v. Abbott, 50 Mich. 278; Fetz v. Leyendecker, 157 Mich. 355.
Plaintiff’s attorney had no special authority from plaintiff to release defendant and thereby satisfy and discharge the judgment.
“The offer was to show that the attorney for Bedell had permitted Mallory to be discharged from the ca. sa. The defendant was not concluded from this proof, by the circumstance of his having produced the judgment against the sheriff for the escape. * * * The great and decisive objection to the evidence offered, is, that it was of no avail, because the attorney to the plaintiff in the suit had no authority, from his general character, as attorney, to discharge the defendant from execution on ca. sa. until the money was paid. * * * There is no case in which that authority has been adjudged to belong to him, and it is against the nature and limitation of his trust. An attorney’s authority determines with the judgment, or at least with the issuing of the execution within the year.” Jackson v. Bartlett, 8 Johns. (N. Y.) 361.
“In the case of Jackson v. Bartlett (8 Johns. [N. Y.] 361), the- court declared that the attorney on record for the plaintiff could not? by virtue of his general character, as attorney, discharge a defendant from custody on execution, without satisfaction. There is no case to be found in which it has been adjudged that he had that power; though in Payne v. Chute (1 Roll. Rep. [Eng. K. B.] 365), the' clerks said that it was the usual course for the attorneys of plaintiffs to acknowledge satisfaction although they receive nothing. What was meant by that expression does not distinctly appear, but it is impossible it could have meant that it was the usual course to discharge judgments without satisfaction rendered to the client, or without his consent. The question here is, whether the attorney can make a valid discharge of the defendant on execution, without the consent of the plaintiff, and without any satisfaction received either by the plaintiff or the attorney. In 'all the modern cases in which the question arose as to the right of taking a defendant a second time in execution, after he had been once taken and discharged on terms, the discharge is uniformly stated to have been by the plaintiff, or by his consent. (Vigers v. Aldrich, 4 Burr. [Eng.] 2482; Thompson v. Bristow, Barnes [Eng.], 205; Jaques v. Withy, 1 Term Rep. [Durnford & East’s] 557; Basset v. Salter, 2 Mod. [Eng. K. B.] 136; Clarke v. Clement and English, 6 Term Rep. [Durnford & East’s] 525; Tanner v. Hague, 7 Term Rep. [Durnford & East’s] 420.) If it had been understood to be the law that the attorney, on his mere motion and pleasure, and without any special authority, or satisfaction, had power to do this, the books would not have been without some precedent to this effect.” Kellogg v. Gilbert, 10 Johns. (N. Y.) 220 (6 Am. Dec. 335).
‘ ‘ There is no doubt that, at common law, the judgment would have been extinguished by the consent of the plaintiff, on whatever terms, to discharge the defendant from his arrest. ' But it is equally well settled, that the attorney fo"r the plaintiff has no power to allow a discharge in virtue of his general authority, without the actual payment of the money. Kellogg v. Gilbert, 10 Johns. (N. Y.) 220 (6 Am. Dec. 335). In the case before us, so far from any special authority in the attorney being shown, the record shows affirmatively that he had none; and that part of the record, too, was given in evidence by the defendant below.” Simonton v. Barrett, 21 Wend. (N. Y.) 362.
In McGill v. Coleman, 214 Mich. 60, Jackson v. Bartlett, supra, Simonton v. Barrett, supra, Kellogg v. Gilbert, supra, and Hahn v. Loker, 229 Mass. 363 (118 N. E. 661, L. R. A. 1918D, 807), were expressly approved. The action of plaintiff’s attorney did not, under the facts here involved, amount to a discharge and satisfaction of the judgment of plaintiff against defendants or either of them.
The action of the trial court is affirmed, with costs to plaintiff.
Wiest, C. J., and Clark, Sharpe, North, and Fead, JJ.; concurred. Butzel and McDonald, JJ., did not sit. | [
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] |
Fead, J.
This is an action to recover $2,000 loaned to defendant by decedent in her lifetime and for other recovery not of consequence here. Defendant pleaded payment. The trial was before the court without a jury, and plaintiff had judgment for $1,000.
■ Before any testimony was taken, defendant’s former counsel made an opening statement in which he conceded that the loan had been made, and the amount. This concession rendered harmless any error in receiving in evidence a memorandum of the loan, made by decedent, and also obliged the court to deny defendant’s motion for judgment at the close of plaintiff’s case. Defendant’s own testimony as to payment was properly rejected as within the equal knowledge of the deceased. The testimony of defendant’s wife and daughter of payment was received and formed the basis of the credit allowed by the court. The court credited the specific payments to which they testified. He properly rejected their general assertions of payment in full, as not credible under their statements of the circumstances. Defendant cannot complain of the reception of certain inadmissible testimony because no proper objection was made to its introduction. The court properly refused to make findings of fact and law as request therefor was not made until after entry of judgment. Defendant had the burden of proving payment and the verdict was not against the great weight of evidence except, possibly, as intimated by the court in ruling upon the motion for a new trial, in the respect that the allowance of credits to defendant was excessive. No good grounds were shown for a new trial.
Judgment is affirmed, with, costs.
North, C. J., and Butzel, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
(dissenting). Plaintiffs herein executed articles of incorporation of a trust company under the provisions of Act No. 108, Pub. Acts 1889 (2 Comp. Laws 1915, § 8044 et seq.), and January 23, 1929, sent the same to the secretary of State for filing. The secretary of State rejected the articles because the same had not been approved by the commissioner of the State banking department. Plaintiffs seek our writ of mandamus, directing the secretary of State to receive and file the articles.
The plaintiffs fully complied with the law then in force unless they were required to present to the secretary of State the approval of the commissioner of the banking department authorizing a corporation to commence its trust business. The statute then in force (2 Comp. Laws 1915, § 8045) regulated the minimum and maximum of the capital stock, and provided:
“When fifty per cent, of the capital stock named in the articles of association shall have been paid in, in cash, and an affidavit to that effect is duly sworn to by the president or secretary of the corporation, and filed with the commissioner of the banking department of this State, the said commissioner shall, by proper certificate, authorize such association to commence business under this act.”
The secretary of 'State held that the issue of such certificate must precede filing of the articles in his office. The plaintiffs contend that, upon proper execution of the articles, the secretary of State is bound to accept and file the same as a ministerial act, upon receipt of the statntory fee, and, while the filing perfects the incorporation, the corporation cannot commence business until granted the certificate by the commissioner of the banking department.
Since the issue was framed herein the legislature, by Act No. 67, Pub. Acts 1929, repealed Act No. 108, Pub. Acts 1889, but with a saving clause, somewhat uncertain in scope, and enacted a new law which expressly provides that, in the first instance, application to organize a trust company must be made to the commissioner of the banking department and receive his approval.
The attorney general contends that practical construction of the old act has always required approval by the commissioner of the banking department before filing of the articles in the office of the secretary of State, and claims such is the true meaning of the old act, at least by implication or adjustment of its provisions in accord with the rule adopted in Peninsular Power Co. v. Secretary of State, 169 Mich. 595.
Counsel for plaintiffs admits that, under Act No. 108, Pub. Acts' 1889, before a corporation can commence business, it must procure the certificate of the commissioner of the banking department, but claims that the secretary of State, as a,'filing officer and the keeper of records, cannot impose the condition exacted in this instance, for such is left to another department and filing, officer by the statute and not made a condition precedent to corporate organization, but only a sine qua non to the commencement of a trust business by the corporation. The new act governs no issue of law here presented-; neither does it render plaintiffs’ effort futile. If plaintiffs complied with the law then in force they may have our writ in the premises.
The right to have the articles of association filed in the office of the secretary-of State was not, by the old statute, made, contingent upon any action by the commissioner of .the banking department. 2 Comp. Laws 1915, § 8047. . Administrative practice adds nothing to a statute, and fixes no construction of an unambiguous statutory provision. See C. N. Ray Corp. v. Secretary of State, 241 Mich. 457, 463. We do not think the point decided in Peninsular Power Co. v. Secretary of State, supra, analogous to the one here presented. In that case compliance with a statute expressly requiring a permissive order of the railroad commission in advance of and as. a condition precedent to receiving certificate of authority from the secretary of State was found and applied. In the case at bar there existed no statutory provision constituting the certificate of the commissioner of the banking department a condition precedent to filing the articles in the office of the secretary of State. Such filing would not have permitted the corporation to commence a trust business, for another provision of the statute imposed a condition making compliance therewith and an affirmative determination of its fulfillment by a certificate to such effect by the commissioner of the banking department necessary before the commencement of business. The statutory safeguard prohibited commencement of business until authorized by the commissioner of the banking department, and the secretary of State had no right to demand approval by the commissioner of the banking department before filing the articles of incorporation in his office.
The writ should issue directing the defendant to file the articles as of the day the same came to his office for filing. The question presented being of a public nature, there will be no costs.
Fead, J.
The. petition for writ of mandamus should not be granted because:
“Since the writ is employed to promote principles of justice, it should not issue to compel a technical compliance with the letter of the law, in violation of its clear intent or spirit, nor to wrest a statute from its true purpose.” 38 C. J. p. 586.
The purpose of the statute was to provide for the incorporation of responsible trust companies with adequate capital actually paid in and with authority to transact a lawful business.
The issue goes beyond the order of steps in the organization of such a company and validity of State departmental practice. Plaintiffs are here seeking to establish judicially the status of corporate entity for their company as of the time of presentation of their articles to the secretary of State, with all the advantages of the statute under which they acted, even though it since has been repealed.
The record does not inform us whether, before the act was repealed, plaintiffs fulfilled all the statutory requirements to commence business by paying-in the required amount of capital, filing affidavit, and applying to the banking commissioner for a certificate. If they did, they should have alleged it in their petition. If they did not, then the granting of this writ would result in establishing- a corporation which is without right to transact a lawful business, but is given an opportunity to operate in violation of law, casting upon the State the burden of discovering the breach and instituting- proceedings to forfeit the charter. Regardless of the technical question of the right of the secretary of State to refuse filing of plaintiffs’ articles before they obtained certificate of the banking commissioner to commence business, the discretionary writ of mandamus should not be issued to aid a company not shown to have taken all the statutory measures to entitle it to transact a lawful business and to put it in a position where it may do an unlawful business.
If the writ were issued, the question would still outstand, whether plaintiffs can now pay in the required capital and demand a certificate under the repealed law or whether they must conform to the repealing statute. The latter, Act No. 67, Pub. Acts 1929, provides different procedure and different exercise of power by the banking commissioner in connection with the formation of trust companies. Until plaintiffs shall have shown performance of all the conditions of one law or the other and been refused a certificate of effective incorporation there is no occasion for action by this court.
Writ is denied, without costs.
Butzel, Clark, Potter, Sharpe, and North, JJ., concurred with Fead, J. McDonald, J., took no part in this decision. | [
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Potter, J.
Plaintiff filed a bill in equity to procure the cancellation of a written assignment by him of a real estate mortgage and note which he claims was fraudulently procured by defendant, to the Chief Okemos Gravel Company, a corporation, or in lieu thereof to recover the money alleged to have been lost by him by reason of defendant’s fraud. There was decree for defendant, and plaintiff appeals.
Plaintiff claims a fiduciary relation existed between himself and defendant; that defendant, taking advantage of the trust and confidence reposed in bim by plaintiff, fraudulently procured the assignment of a $3,500 real estate mortgage and note belonging to plaintiff to the Chief Okemos Gravel Company, a corporation; that defendant represented to plaintiff such assignment was in the nature of a loan to him which defendant promised to pay; that plaintiff had no knowledge the mortgage was to be used to purchase stock in the gravel company, and as soon as he found it out repudiated its purchase.
It is claimed plaintiff was of foreign parentage, unfamiliar with the English language, and relied absolutely on the advice of defendant. If the relationship of the parties had been such that they did not deal on equal terms, if plaintiff could not exercise his free agency, if defendant took advantage of an existing relation of trust and confidence and obtained for himself without adequate consideration the real estate mortgage and note in question, plaintiff might be entitled to relief.
Here plaintiff was a man 47 years of age, of more than average intelligence, of Greek birth, who had been in this country 20 years and had held responsible positions as foreman and assistant foreman in various manufacturing, transportation, and war industries, had always earned good money, carried a bank account, bought and sold property, engaged in business, and successfully waged a lawsuit.
The proof shows plaintiff solicited an opportunity to invest in the gravel company. There is no proof of fraudulent representations. When it was sug gested to him he might lose his money, plaintiff said if defendant lost, he, plaintiff, would lose too. He attended the pre-organization meeting of the promoters of the gravel company, executed the articles of association, assigned the note and mortgage to it, and there was issued to him the stock of the gravel company he had paid for. The mortgage and note were subsequently assigned by the gravel company as collateral security for the payment of its note at the bank.
Both plaintiff and defendant undoubtedly expected to make money out of the gravel company, but the gravel deposit was not extensive, the company became involved financially, ceased operations, and the prospect is, all parties have lost their investments therein. This is an unfortunate but frequent result of intrusting the handling of one’s money to others.
Plaintiff claims when it appeared the real estate mortgage and note had been assigned by the gravel company to a bona fide holder for value, only the liability of the defendant for damages remained, and the trial court should have transferred the case to the law side of the court for trial. Under the facts alleged, plaintiff could elect-whether to begin suit at law or in equity. An action at law will lie to recover damages for fraud, but in a case like this, where a breach of a fiduciary relation and fraud are charged, and the cancellation- of a written assignment of a real estate mortgage and note is sought, equity undoubtedly has jurisdiction. Wheeler v. Clinton Canal Bank, Har. Ch. 449, Fred Macey Co. v. Macey, 143 Mich. 138 (5 L. R. A. [N. S.] 1036); Mulheron v. Koppin Co., 221 Mich. 187.
The trial court was unable to find fraud had been established. It could not be presumed, but must be proved by a preponderance of evidence. This has not been done. The decree of the trial court is affirmed, with costs.
Wiest, C. J., and Butzel, Clark, Sharpe, Fead, and North, JJ., concurred. McDonald, J., took no part in this decision. | [
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North, J.
Elbridge Gerry Brown died September 16, 1913, leaving a holographic will by which he disposed of his estate consisting of personal property inventoried at $45,084.61 in the following language :
“'Should my wife, Julia Watkins Brown, survive me, it is my will that she shall have the use and control of all property, personal and real, that shall be holden by me at the time of my decease for her sole benefit and use during her natural life, with the stipulation that she may remember the following persons who are dear to me because of ties of friendship.”
The'will was probated in Wayne county, and the widow was appointed administratrix with the will annexed. At the conclusion of the probate proceedings, the administratrix filed her final account and petitioned the probate court “that the residue of said estate be assigned to your petitioner under the terms of the will of deceased.” This petition was set for hearing, notice thereof served on the interested parties, and without contest the following order of assignment was made:
“That the residue of said estate be and the same is hereby assigned to Julia W. Brown, widow of said deceased, she being only residuary deviseé and legatee, in accordance with the provisions of the said last will and testament of said deceased,”
Nearly 14 years later Mrs. Brown died intestate and without surviving children. She still had in her possession many shares of stock which she had received from her husband’s estate, though she had caused them to be transferred to her own name. The First National Bank of Ann Arbor was appointed administrator of Mrs. Brown’s estate by the probate court of Washtenaw county, and took possession of the stock here involved. The plaintiffs, as heirs-at-law of Elbridge Gerry Brown, asserted that Mrs. Brown’s right to this stock was only the use and control thereof during her natural life, and, she having died, it belonged to them. They demanded it of the bank as administrator, but the bank refused to deliver it to the plaintiffs. Thereupon they filed a bill in chancery to secure an interpretation of the above-quoted order of assignment made in the Elbridge Gerry Brown estate. Plaintiffs allege that this order is ambiguous, and ask that its meaning be adjudicated. This is the sole purpose for which the bill was filed. The circuit judge decreed:
“That so much of the order of assignment * * * as purports to give the widow, Julia Watkins Brown, more than a life estate, is hereby declared to be null and void and of no force and effect whatever.
“That the property now constituting the corpus of the estate of Elbridge Gerry Brown, deceased, belongs to and is the property of the plaintiffs -as heirs and distributees of said Elbridge Gerry Brown, deceased.”
The First National Bank, as administrator of the estate of Julia Watkins Brown, and representing Mary Watkins Chapman, one of Mrs. Brown’s heirs, who is entitled to four-fifteenths of her estate, has appealed. The other heirs of Mrs. Brown have settled their respective claims with the plaintiffs and are not concerned in this appeal.
The first consideration is whether the above quoted order of assignment is ambiguous. The time has long passed when the question can be raised as to whether this order assigning the stock to Mrs. Brown was or was not in accordance with the terms of her husband’s will. After due notice the order of assignment was entered May 19,1914. ■ No appeal was taken. The order was never questioned during the years prior to Mrs. Brown’s death in March, 1928. "We have carefully considered the briefs filed by plaintiffs’ counsel, but we are unable to agree with them that there is a doubt or uncertainty as to the meaning and intent of this order which assigned the residue of Elbridge Gerry Brown’s estate “to Julia W. Brown, widow of said deceased, she being-only residuary devisee and legatee, in accordance with the provisions of the said last will and testament of said deceased.” In the order of assignment no reference is made to Mrs. Brown as having only the income or use during her lifetime of the property which passed under the order of assignment. This was a final order. It closed the estate of Elbridge Gerry Brown. The casual reference in this order that Mrs. Brown was the only residuary devisee and legatee “in accordance with the provisions of the said last will and testament of said deceased” should not be construed to embody the terms of the will itself in the order, which is plain and specific in its provisions that the residue of the estate “is hereby assigned to Julia W. Brown, widow of said deceased.” Nor is the order rendered ambiguous or inoperative because of this reference to Mrs. Brown as the only “residuary devisee and legatee,” when in fact the will contained no provision whatever as to a residuary devisee or legatee. It seems clear that the foregoing recital in the order is indicative of the construction the probate judge placed upon Mr. Brown’s will; and, whether right or wrong, such construction is not now open to review. We hold that the order of assignment entered on May 19, 1914, is not ambiguous. The final decree of a court of competent jurisdiction made and entered in a proceeding of which all parties in interest have due and legal notice and from which no appeal is taken cannot be set aside and held for naught by the decree of another court in a collateral proceeding commenced years subsequent to the date of such final decree. The foregoing proposition of law is so axiomatic and has been applied so many times in this court to final orders of probate courts that citation of authorities is unnecessary; but the following may be noted: Clark v. Fredenburg, 43 Mich. 263; Byrne v. Hume, 84 Mich. 185; Riebow v. Ensch, 220 Mich. 450; Chapin v. Chapin, 229 Mich. 515; Calhoun v. Cracknell, 202 Mich. 430, and Thompson v. Thompson, 229 Mich. 526. The two cases last above cited are not only to the point of law involved, but they present strikingly similar facts. So far as the interest of the appellant, Mary Watkins Chapman, is concerned, the decree of the lower court must be reversed, and the estate of Julia Watkins Brown held to be possessed of the absolute title to the property received by Mrs. Brown from her husband’s estate. The appellant will have costs of both courts.
Wiest, C. J., and Btjtzel, Clark, Potter, Sharpe, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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Butzel, J.
Plaintiff, a municipal corporation, brought this suit to restrain defendants from drilling an oil well on property in the city of North Muskegon. In 1925 plaintiff passed a zoning ordinance, by virtue of which the property on which it was sought to drill the oil well was restricted in its use to single family dwellings, churches, schools, and libraries, farming and truck gardening and private clubs. In 1928, shortly after oil had been discovered within the corporate limits of plaintiff, an ordinance was passed making it unlawful to drill wells for the purpose of obtaining oil and gas without first securing a permit from the council of plaintiff. Notwithstanding these two ordinances, defendant Miller, as lessee of the property, in the year 1928, together with defendant Voorhees, an oil drilling contractor, after two unsuccessful efforts to secure a permit from the city, proceeded to drill an oil well without a permit on property herein described. This suit was brought by the plaintiff to restrain defendants from proceeding with their drilling operations, and, after a hearing, a final decree was entered permanently enjoining defendants from drilling the well. Defendants have appealed.
Defendants claim that both the zoning ordinance and the oil drilling ordinance were not properly adopted, and therefore are of no force and effect; that the zoning ordinance is unreasonable and unwarranted by the police power; and that it violates section 16 of article 2 of the Constitution of the State of Michigan and the provisions of the Fourteenth Amendment to the Constitution of the United States. They further claim that oil drilling permits had been given to others in other sections of the city, and that the refusal to give defendants such permit was discriminatory, and therefore illegal.
In order to properly discuss the reasonableness of the zoning ordinance in its application to the property in question, it is necessary to give a full description of the property. The city of North Muskegon lies on a strip of land between Bear lake on the north and Muskegon lake on the south. Running through the length of this strip and crossed at right angles by Center street is Ruddiman avenue, the principal thoroughfare of the city. Practically all the land west of Center street has been zoned as a district devoted solely to residences. The property in question in this case is a portion of the Beau-dry, Yallicotte, and Haines subdivision, which lies about 5,000 feet west of Center street, extending from Ruddiman avenue south to the edge of Lake Muskegon, a distance of about 950 feet. About 250 feet south of Ruddiman avenue, and 700 feet from the water, the land falls away in a bluff which seemingly runs the entire length of the peninsula. The land under the oil lease is a part of the lowlands between the bluff and the water. The oil well was being sunk at a point variously estimated at from 300 feet to 600 feet from Ruddiman avenue, but shown by the zoning map to be about 800 feet from Ruddiman avenue, 550 feet from the bluff, and 150 feet from the water.
Adjacent to this lot on the lowland to the east is the city dump for refuse and garbage, which Foote, the owner of the fee in the oil lands, testifies at varioris times gives off a very unpleasant odor. Two hundred twenty-two feet to the west of the oil well is a water well which furnishes about one-half of the city’s water supply. Seemingly bordering the land on the west is a clump of trees known as Bigelow’s grove, which partially shields the proposed oil well ■ from the view of a few new houses erected on Ruddiman avenue about two blocks west. A little less than a mile west of the proposed oil well is Interlaken, the most active of the better residential subdivisions.
Until 1892 the lowlands were used by the lumber companies for their docks and mills. They have been abandoned, the old docks remaining, but the land given over to brush, scrub timber, and old logs. At least a portion of the lowland is marsh. Foote stated that the land in front of the oil well was marshy. The photographs put in evidence indicate the lowland, of which the property in question is a part, to be practically a barren waste, partly marsh, uncultivated and unimproved, even when allowance is made for the fact that the photographs were probably taken from points most advantageous to the defendants.
The land along the bluff on Ruddiman avenue is fairly well built up with substantial residences, two of them being on the Beaudry, Vallicotte and Haines subdivision. Along the lowland, however, for a distance of a mile and a half east there are only 13 houses, 4 of them belonging to Foote, and on the Beaudry, Vallicotte and Haines subdivision. Of these 13, 9 have been built at least 24 years, and were regarded for over 20 years to be mere shacks. Only one is used as a permanent residence, the others being summer cottages. In regard to the use of this land as a summer resort, Foote testified that the water about the old dock was 40 feet deep, while another witness who claimed to have measured it stated it was 3 feet deep.
Despite testimony of increased building activity and large strides in population and assessed valuation of the property in the city during the past few years, Foote testified that his land had not increased in value in 21 years.
Practically all the witnesses agreed that the lowland was useless for residence purposes. The principal reason for maintaining this property in the residence zone appears to be that the rear of the property on the bluff overlooks it, and that the masts of the oil derricks temporarily used in drilling operations would be visible from Ruddiman avenue.
It will be readily seen that the property in question is almost worthless if its use is to be restricted as provided in the zoning ordinance. The courts have particularly stressed the importance of not destroying or withholding the right to secure oil, gravel, or mineral from one’s property, through zoning ordinances, unless some very serious consequences will follow therefrom. Village of Terrace Park v. Errett (C. C. A.), 12 Fed. (2d) 240. The effect of the zoning ordinance in the cause at issue amounts almost to a confiscation of the property. The legality of a zoning ordinance, when reasonable, has been long recognized by our courts. Although the question is comparatively new in Michigan, its legality has been upheld a number of times. Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261; Dawley v. Ingham Circuit Judge, 242 Mich. 247. Zoning ordinances have been upheld by the United States Supreme Court in many instances, the leading case being that of Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (47 Sup. Ct. 114, 54 A. L. R. 1016). It is, however, necessary that a zoning ordinance be reasonable, and the reasonableness becomes the test of its legality. Any ordinance to be legal must be reasonable. People v. Armstrong, 73 Mich. 288 (2 L. R. A. 721, 16 Am. St. Rep. 578). The authorities are numerous on this subject.
“Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities.” Washington, ex rel. Seattle Title Trust Co., v. Roberge, 278 U. S. 116, 121 (49 Sup. Ct. 50).
“For the purpose of this case it may be conceded that the village, in the exercise of its police power, either delegated to it by statute or vested in it by the Constitution of Ohio, has authority to pass a zoning ordinance reasonably necessary for the preservation of public health, morals, or safety * * * where such necessity appears either from existing conditions or reasonable anticipation of future growth and development. But it does not follow that it can exercise that power in such an arbitrary and unreasonable manner that the ordinance will be unconstitutional in its operation and effect. Youngstown v. Kahn Bros. Building Co., 112 Ohio St. 654 (148 N. E. 842, 43 A. L. R. 662). In such event the owner of property whose constitutional rights are invaded thereby is entitled to the same relief that would be given him if the statute conferring the power were unconstitutional. Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 292 (43 Sup. Ct. 353).” Village of Terrace Park v. Errett, supra.
“An inspection of the plat of the city upon which the zoning districts are outlined, taken in connection with the master’s findings, shows with reasonable certainty that the inclusion of the locus in question is not indispensable to the general plan. The boundary line of the residential district before reaching the locus runs for some distance along the streets, and to exclude the locus from the residential district requires only that such line shall be continued 100 feet further along Henry street and thence south along Brookline street. There does not appear to be any reason why this should not be done. Nevertheless, if that were all, we should not be warranted* in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Bd. of Public Works, 274 U. S. 325, 328 (47 Sup. Ct. 594), and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, and morals, or general welfare.” Nectow v. City of Cambridge, 277 U. S. 183, 188 (48 Sup. Ct. 447).
A careful inspection of the map of the restricted property involved in the present case convinces us that the zoning ordinance is unreasonable, as far as this particular piece of property is concerned. The city of Muskegon itself has shown its lack of regard for the property by using a parcel almost adjacent thereto as a dumping ground for garbage and refuse. The property consists of marshy lowlands, which are unfit for the purposes to which they are limited by the zoning ordinance. We only pass upon the question of the reasonableness of the zoning ordinance as applied to the particular section of the city where this property is located. We find that the zoning ordinance as applied to the property in this case is unreasonable and confiscatory, and therefore illegal. Having come to this conclusion, it becomes unnecessary for us to discuss the regularity of the proceedings by which this ordinance was adopted.
We next come to the question of the regularity of the adoption of the drilling ordinance. Under the charter of the city of North Muskegon, it is provided in sections 4 and 5 of chapter 6 as follows:
“Section 4. Immediately upon the final passage of any ordinance, the mayor and clerk shall sign the same under a certificate of the day and date of its passage.
“Section 5. All ordinances, except as otherwise herein provided, shall be posted within one week of their passage in five public places within the city, and the clerk shall certify on the record of ordinances, the date of such posting and the places where the copies of the ordinance was so posted; and such certificate shall be prima facie evidence that legal publication has been made.”
At the hearing of this case it was .shown that the mayor and clerk had not signed the ordinance prior to the institution of the suit, and that there had been no certificate of posting filed, in accordance with section 5 hereinabove quoted. The mayor and the clerk did sign the ordinance, and the clerk and chief of police filed a certificate of posting prior to the hearing of the case.
The drilling ordinance was legally adopted. It did not require any further action except the ministerial act of certification and authentication by the mayor and clerk. The validity of this ordinance did not depend upon their signatures, for the charter does not provide for the right of veto by the mayor. While it would have been proper and better practice for the mayor and clerk to have certified to the passage and authentication of the ordinance, and it would have been prima facie evidence of its legal publication, nevertheless, the failure to do so, until after this case had been begun, does not invalidate the ordinance had been validly passed by a majority the ordinance. Evidence was offered to show that of the council. The mayor and clerk could not indirectly exercise a power of veto which is not given them by the charter through a neglect to certify to the ordinance.
The charter of plaintiff does not make the posting of an ordinance essential to its validity. In the case of Vernakes v. City of South Haven, 186 Mich. 595, an ordinance, without the publication thereof, was held valid because there was no provision in the city charter requiring such publication as a condition precedent to the ordinance taking effect. The court in that case held:
“The following Michigan cases have held publication essential.to the validity of ordinances: People v. Keir, 78 Mich. 98; Richter v. Harper, 95 Mich. 221; Van Alstine v. People, 37 Mich. 523. But an examination of these cases discloses the fact that in each case the charter provided that the ordinance should not take effect until after publication. In the instant case there is no provision that the ordinance shall not take effect until after publication.”
In a further quoting from the case of Stevenson v. Bay City, 26 Mich. 44, it is said:
“ ‘In the absence of a clear provision to the contrary, a provision in the charter of Bay City, requiring ordinances and the date of their publication to be recorded, and the record signed by the mayor and recorder, was held not to make such record a condition precedent to the validity and operation of an ordinance regularly adopted by the common council. * * * An ordinance lawfully adopted cannot be defeated by the omission of such a ministerial duty; for, otherwise, either mayor or recorder would be able to control or delay the legislation of the city by his individual action, and would possess a practical veto power not conferred or contemplated by the charter.’ ”
This principle has been approved of in Red Star Motor Drivers’ Ass’n v. Detroit, 244 Mich. 480, 496.
The claim is made that the drilling ordinance has the same fatal defects as the zoning ordinance in its application to this property. We find nothing unreasonable in the drilling ordinance, unless there should be some discrimination or other defect arising through its application in the present case. No discrimination whatsoever has been shown in refusing defendants a permit to drill an oil well. It' is true that permits were issued by the city to owners of property in a different section far removed from' the property in question. Others had been refused permission to drill oil wells in the same locality as ■ defendants’ land. There was no discrimination.
We have passed upon the legality of the zoning ordinance, as far as applied to the particular section of the city in which this piece of property is located, so that, if the question again arises, a refusal to permit the drilling of an oil well may in no way be influenced by the provisions of the zoning ordinance. A' permit may have been refused largely on account of the zoning ordinance. However, the record gives another reason for the refusal.
The drilling ordinance expressly gave the council the power to issue or refuse permits for drilling for oil or gas. While the drilling ordinance was adopted so as to make the zoning ordinance more effective, nevertheless, its provisions are sufficiently broad so as to give the council the power to refuse a permit for any good reason.
The record shows that one of the two sources of water supply for the city is from wells under lands that are almost contiguous to the property in question. There is testimony, although disputed, that the drilling of the oil well and the raising of the brine from the well might endanger the city water supply and result in contamination of the water well. This would be sufficient reason for the refusal to give a permit to defendants. It may be possible, as expert witnesses testified, to remove all danger of con- lamination by the proper use of overflow pipes, etc., and it may be possible that defendants can satisfy the city officials of their ability to overcome all danger of such contamination. It seems unfortunate that, if there is oil under this marshy land, it should not be made use of, both for the benefit of plaintiff as well as defendants. However, this is a matter which is purely administrative, and it is not within our province to regulate the action of the city officials when they act within their legal rights. We find the zoning ordinance illegal and void as to the particular section of the city in which this property is situated. We find the drilling ordinance both legal and reasonable, and, in this instance, the city council had a right to refuse the giving of a permit. For this reason, we affirm the decision of the lower court, with costs to plaintiff.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Elizabeth Skinner, who sued in her own right and as administratrix of the estate of Charles Jolls, deceased, and Edmond J. Jolls, are children of Edmond Jolls, deceased. They filed a bill of complaint in the circuit court of Jackson county, in chancery, against Maude Hamlin Burgess, alleging that Edmond Jolls, their father, prior to his death, was seized and possessed of property worth $18,000 or $19,000'; that the brother of Edmond Jolls, Charles Jolls, by fear, force, fraud, and undue influence practiced by him, the said Charles Jolls, upon Edmond Jolls when Edmond Jolls was mentally incompetent to transact business and to make a valid testamentary disposition of his property, induced Edmond Jolls to make his last will and testament giving said Charles Jolls all of his property at his death, to the exclusion of Elizabeth Skinner and Edmond J. Jolls, his children and lawful heirs; that such will was void, at least voidable; that plaintiffs in equity had good grounds upon which to contest the validity of such will; that plaintiff in equity, Elizabeth Skinner, was in probate court with her attorneys to contest the same; that an agreement was then and there made and entered into with Charles Jolls that if she would not further contest the validity of the will of Edmond Jolls, deceased, and would allow such will to he admitted to proháte, whereby Charles Jolls would obtain the property of his brother, Edmond Jolls, to the exclusion of plaintiffs, that he, the said Charles Jolls, would, in consideration thereof, leave all his property by will, at his death, to plaintiffs; that believing and relying upon such promise and agreement on the part of Charles Jolls, the contest of the will of Edmond Joils, deceased, was withdrawn, his will admitted to probate, his estate probated, and Charles Jolls became seized and possessed of the property which had belonged to Edmond Jolls; that Charles Jolls, after receiving such property by reason of such agreement, repudiated its binding force, and in violation of the same, failed, neglected, and refused to make the will he agreed to make; that Maude Hamlin Burgess, defendant in equity, fraudulently, by undue influence, without consideration, when Charles Jolls was mentally incompetent to intelligently dispose of his property, and while she stood in a fiduciary relation to said Charles Jolls, prevailed upon him to place the title to most of his property in joint tenancy with her, so that, upon his death, it would go to defendant, Maude Hamlin Burgess, as survivot, and induced the said Charles Jolls to make a will in her favor as beneficiary to the- exclusion of plaintiffs in equity; that Elizabeth Skinner was appointed administratrix of the estate of Charles Jolls, deceased, by the probate court of Jackson county, and Maude Hamlin Burgess, defendant in equity, petitioned for the probate of an instrument purporting to be the last will and testament of Charles Jolls, deceased. Plaintiffs in equity pray for discovery, specific performance of the agreement with Charles Jolls to make a will leaving them all his property; that defendant turn over to plaintiffs the property: which she obtained from said Charles Jolls, now deceased; that defendant, Maude Hamlin Burgess, be held to be a trustee of such property for the use and benefit of plaintiffs, an injunction restraining her from selling, assigning, disposing of, or incumbering any of the property so obtained, and to restrain her from proceeding upon her petition in the probate court, and for other relief.
A temporary injunction was issued as prayed.
Defendant, Maude Hamlin Burgess, answered, denying all of the material allegations of the bill of complaint, and moved to dissolve the injunction for the reasons the probate court had exclusive jurisdiction of the probate of wills; the property of Charles Jolls was placed in joint tenancy and defendant, Maude Hamlin Burgess, at his death, as survivor, took title thereto; there was no proof of the alleged agreement by which Charles Jolls was to make a testamentary disposition of his property in favor of plaintiffs in equity; there was no basis for specific performance, nor of constructive trust; the bill of complaint did not state a cause of action, and other grounds. This motion to dissolve the injunction was overruled, and defendant in the chancery case-as plaintiff and petitioner here seeks mandamus to compel the circuit judgé to set aside the order overruling the motion to dissolve the temporary injunction.
No motion to dismiss the bill of complaint was made. Had such motion been made, on its being overruled, this court might have- reviewed the issue on appeal. Section 13753, 3 Comp. Laws 1915. The bill in equity states a valid agreement based upon a good and sufficient consideration moving to Charles Jolls, whereby he agreed to make a will leaving all his property to plaintiffs in equity and a violation of such agreement on his part. It charges defendant in equity .fraudulently induced him to so fix the title of most of his property in joint tenancy with her that at his death it would go to her instead of plaintiffs. Establishment of the alleged contract is a matter of proof. Its enforcement, if established, is a matter of right. That the title of the property was procured to be placed in joint tenancy with defendant in equity malíes no difference. Joint tenancy is no defense to fraud but is a frequent means of attempting to consummate fraud.
Probate courts have always been regarded as courts for peculiar and limited purposes, which are outside ordinary litigation, and incapable of dealing completely with ordinary rights. Detroit, etc., Ry. Co. v. Livingston Probate Judge, 63 Mich. 676; Godfrey v. White, 60 Mich. 443 (1 Am. St. Rep. 537); McKinney v. Curtiss, 60 Mich. 611. 3 Comp. Laws 1915, § 13764, defines the power and jurisdiction of probate courts, but contains a proviso:
“That the jurisdiction conferred by this section shall not be construed to deprive the circuit court in chancery in the proper county of concurrent jurisdiction as originally exercised over the same matter.” See Tudhope v. Potts, 91 Mich. 490; In re Andrews’ Estate, 92 Mich. 452 (17 L. R. A. 296); In re Butts’ Estate, 173 Mich. 504.
If equity has jurisdiction for any purpose it may retain such jurisdiction to grant complete relief. Whipple v. Farrar, 3 Mich. 436 (64 Am. Dec. 99); Wales v. Newbould, 9 Mich. 45; Jones v. Smith, 22 Mich. 360; Miller v. Stepper, 32 Mich. 194; Wallace v. Wallace, 63 Mich. 326; Pleasant Lake Hills Corp. v. Eppinger, 235 Mich. 174; Gillen v. Wakefield State Bank, 246 Mich. 158. A court of equity may decree specific performance of a contract to make a will. Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596, 16 Am. St. Rep. 528); Bird v. Pope, 73 Mich. 483; Wright v. Wright, 99 Mich. 170 (23 L. R. A. 196); Bassett v. American Baptist Pub. Soc., 215 Mich. 126 (15 A. L. R. 213); Underhill on Wills, § 286. If defendant in equity obtained the property of Charles Jolls in the way alleged, she holds it under a constructive trust for plaintiffs which is peculiarly within the power of a court of equity to control and enforce. Huxley v. Rice, 40 Mich. 73; Gates v. Cornett, 72 Mich. 420; Lockwood v. Lockwood, 124 Mich. 627; Cornell v. Whitney, 132 Mich. 300; Woolcott v. Woolcott, 133 Mich. 643; Weir v. Union Trust Co., 188 Mich. 452; Nesbitt v. Onaway-Alpena Tel. Co., 202 Mich. 567; Ridky v. Ridky, 226 Mich. 459; Pomeroy’s Eq. (4th Ed.), § 951; Perry on Trusts (7th Ed.), §§ 189-194.
The jurisdiction of a court of equity over constructive trusts is not affected by the statutes giving probate courts jurisdiction of testamentary trusts. 3 Comp. Laws 1915, §§ 13764, 14094. On the face of the bill in equity, plaintiffs are éntitled to discovery, specific performance of the contract, and an injunction restraining the disposition or incumbrance, of the property in dispute, held by the defendant as' constructive trustee, by her, and to have such property held in statu quo until the equity case is disposed of by final decree.
Probate courts have jurisdiction of the probate of wills. 3 Comp. Laws 1915, § 13764; Lloyd v. Wayne Circuit Judge, 56 Mich. 236 (56 Am, Rep. 378). The probate court is one of general jurisdiction in testamentary and other probate matters. Church v. Holcomb, 45 Mich. 29; Allen v. Allen, 209 Mich. 362; Chapin v. Chapin, 229 Mich. 515; Raseman v. Raseman, 234 Mich. 237. The probate'court is a special tribunal with general jurisdiction over the prohate of'estates and ought not ordinarily to he enjoined from acting in matters of which it has jurisdiction, though the necessity of some equitable remedy or the prevention of irreparable injury may he sufficient grounds for an injunction. 32 C. J. p. 113. If plaintiffs prevail in the suit in equity, no property will pass to the defendant therein by the will of Charles Jolls, deceased. Bassett v. American Baptist Pub. Soc., supra; Underhill on Wills, § 286.
Mandamus is not a writ of right hut one of discretion. Klatt v. Wayne Circuit Judge, 212 Mich. 590.
‘ ‘ The rule may now he regarded as clearly settled, both upon principle and authority, that the granting or dissolving of injunctions is a matter of purely judicial discretion, and when this discretion has once been exercised, and the inferior court has refused to grant an injunction, or, if already granted, has refused to dissolve it, mandamus will not lie to control such decision.” High’s Extraordinary Legal Remedies (2d Ed.), § 166, p. 151.
The rule above stated is one subject, in this State, to exceptions.
“Ordinarily, this court does not review the action of the circuit judge in injunction cases. Where, however, as in this case, the return shows the. question in dispute to be one of law, merely, it will consider the case.” Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (32 L. R. A. 481).
“While ordinarily this court does not by mandamus review the action of a circuit judge in injunction cases, yet, where the return shows the question in dispute to be one of law merely, it will consider the case.” Titus v. Chippewa Circuit Judge, 168 Mich. 507.
“This court, as a rule, does not review by mandamus discretionary action of a trial court in granting a preliminary injunction and refusing to dis solve the same; but where the authority to issue turns solely upon a question of law, and the return shows no material questions of fact involved, the propriety of the writ will be considered.” B. Siegel Co. v. Wayne Circuit Judge, 183 Mich. 145.
These cases recognize and establish in this State an exception to the general rule. The court holds it will consider the questions involved. In this case there is no want of jurisdiction of the subject-matter or of the parties. The continuance of the injunction issued until the chancery case is disposed of will result in no substantial injustice to petitioner. As the case now stands, defendants’ rights are abstract and technical, and the questions raised do not go to the merits of the case. Under such circumstances, mandamus should be denied. 38 C. J. p. 653. The allegation of want of jurisdiction is not necessarily decisive.
“The court of equity can do full justice in this case, and, in the opinion of the judge of that court, the case is one which equity, rather than a jury, should try. In this we must assume the judge was right. We cannot review that question.” Mactavish v. Kent Circuit Judge, 122 Mich. 242.
“Even an abuse of discretion by a circuit judge in granting and maintaining a preliminary injunction will not be reviewed on mandamus, when, without injury to the rights of the defendant, the case can be heard upon its merits.” Central Paving Co. v. Manistee Circuit Judge, 132 Mich. 126.
Under the circumstances here involved, we think nothing calls for the use of the extraordinary remedy by mandamus, and the writ is denied, with costs.
Wiest, C. J., and Butzel, Clark, Sharpe, Fead, and North, JJ., concurred. McDonald, J., did not sit. | [
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Potter, J.
(for affirmance). Defendant was charged in the information filed against him with having violated Act No. 123, Pub. Acts 1913; 1 Comp. Laws 1915, §§ 5037-5040. An order granting defendant’s motion to quash is reviewed by the people by writ of error.
A child was born at 3 o’clock a. m. November 10, 1928. No physician was present. The child’s father tried to secure the services of defendant, a regular practicing physician, but defendant was busy and could not then respond. He did, however, visit the mother and child eight hours after the child’s birth, but did not treat the child’s eyes with a prophylaxis named and approved by the State board of health. The child subsequently became blind. The statute (1 Comp. Laws 1915, § 5038) provides in part:
“It shall be the duty of any physician, nurse or midwife who shall assist and be in charge at the birth of any infant, or have care of the same after birth, to treat the eyes of the infant with a prophylaxis approved by the State board of health; and such treatment shall be given as soon as practicable after the birth of the infant and always within one hour. ’ ’
If the contention of the people is correct, the language “always within one hour,” in the statute, is surplusage. These clear and express words of limitation may not be disregarded, but must be given full force and effect. The statute, by providing such treatment shall be given “always within one hour” after the birth of a child indicates that, in the opinion of the legislature, subsequent treatment would be useless, if not dangerous.
The statute relied upon is a penal one, and cannot be enlarged or extended by construction. Van Buren v. Wylie, 56 Mich. 501; Van Camp v. Railroad Co., 137 Mich. 467.
On the other hand, it must be strictly construed. Crosby v. Railroad Co., 131 Mich. 288.
“It is a cardinal rule of statutory construction that full effect shall be given to every part of the act under consideration. Every clause and every word is presumed to have some force and meaning. No portion should be rendered nugatory.” Attorney General v. Detroit Board of Education, 154 Mich. 584.
“It is a cardinal rule in the construction of statutes that effect is to be given, if possible, to every word, clause, and sentence. It is the duty of the court, so far as practicable, to reconcile the different provisions, so as to make them consistent and harmonious, and to give a sensible and intelligent effect to each.” Rohde v. Wayne Circuit Judge, 168 Mich. 683.
No one may be punished under a statute for acts not clearly within the scope of its provisions.
“If the acts alleged do not come clearly within the prohibition of the statute, its scope will not be extended to include other offenses than those which are clearly described and provided for; and if there is a fair doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of defendant.” 36 Cyc. p. 1186.
The acts of defendant, instead of coming within the express language of the statute, are clearly not covered by its terms. The statute provides, in effect, for the treatment of a new-born child as soon as practicable, provided the treatment be administered “always within one hour” after the child’s birth. If good practice required the treatment of the child’s eyes eight hours after its birth, defendant may be civilly liable for malpractice, but cannot be convicted criminally.
Judgment affirmed.
Clark, North, and Eead, JJ.? concurred "with Rotter, J,
McDonald, J.
(for reversal). The defendant is a practicing physician in Hillsdale county, Michigan. On complaint of LeRoy A. Potter, State health inspector, he was arrested on a complaint charging failure to treat the eyes of a newly-born infant with prophylaxis as required by the statute relative to the prevention of blindness in the newly-born. An examination was had before a magistrate, and the defendant was held to the circuit court for trial. After arraignment, the circuit judge granted a motion to dismiss the cause and discharge the defendant on the ground that the testimony did not show he had committed any offense under the statute. The people have brought error.
The applicable portion of the statute, 1 Comp. Laws 1915, §§ 5037-5040, reads as follows:
“ (5038) Sec. 2. It shall be the duty of any physician, nurse or midwife, who shall assist and be in charge at the birth of any infant, or have care of same after birth, to treat the eyes of the infant with a prophylaxis approved by the State board of health; and such treatment shall be given as soon as practicable after the birth of the infant and always within one hour.”
The facts upon which the prosecution is based are not in dispute. Wanita Cornish was born at three o’clock in the morning on the 10th of November, 1928. No doctor was present. Her father attempted to secure the attendance of the defendant, but he was busy at the hospital and did not arrive until eight hours after the birth of the child. He did not treat her eyes, but left some medicine for the mother. Seven days later it was found that the baby was suffering from gonorrhea ophthalmia. Treatment at Ann Arbor failed to save her sight, and she is now blind. On these facts the defendant says that he is not guilty of any offense under the statute above quoted, that the penalty provided is for failure to give the approved prophylaxis within an hour after birth and he was not in attendance at that time.
The facts show that the defendant had professional care of the child eight hours after its birth. The question is whether he is excused by the statute from administering the prophylaxis at that time. If so, it is because of the language which reads:
“And such treatment shall be given as soon as practicable after the birth of the infant and always within one hour.”
It is urged that the statute in question is a penal statute and must be construed strictly. That is true, but penal statutes are not to be construed so strictly as to defeat the plain purpose of the legislature in enacting them. 25 R. C. L. p. 960.
The rule that penal statutes are to be construed strictly does not apply to provisions that are directory merely. These ought to be liberally construed to accomplish the purpose of the act. 36 Cyc. p. 1173.
The one-hour provision of this statute is directory and ought to be liberally construed. Considering the reason for the statute and its obvious purpose, surely it was not the intention of the legislature to exempt from the penalty a doctor who does not arrive until 1 hour and 5 minutes after the birth of the child and fails to give the required treatment. The gist of the offense is not in failure to give the treatment in 1 hour after birth, but in not giving it as soon as practicable. The provision in regard to time was evidently inserted to induce prompt action on the part of the physician. Having in mind the obvious purpose of the statute, it would be absurd to say that it was'intended to limit the time in which he should act to one hour after birth. Undoubtedly, treatment 5 minutes after that time would be just as beneficial as though given during the hour. As we construe that provision of the statute in which time of treatment is specified, it means that it should be administered always within one hour after birth if possible, and, if not possible, as soon as practicable thereafter. Obviously such was the legislative intent, and “intention of the legislature constitutes the law.” 25 R. C. L. p. 960. The undisputed facts in this case show a violation of the statute by the defendant.
The court erred in discharging him. The judgment should be reversed, and the cause remanded for further proceedings.
Butzel and Sharpe, JJ., concurred with McDonald, J. | [
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Sharpe, J.
In the first count of the information the defendant was charged with the larceny of personal property of the value of more than $100, and in the second count with the embezzlement of certain bonds, the property of Mary L. Eastman, of the value of $2,500, on August 20,1926. He was convicted under the second count, and here' seeks review by writ of error.
While no section of the statute, was expressly referred to in the information, the trial court held that the charge was properly laid under section 15315, 3 Comp. Laws 1915, and sentenced the defendant thereunder. It reads as follows:
“If any person to whom any money, goods, or other property which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently convert to. his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny.”
The errors relied on by defendant may be thus stated:
1. The prosecution should have been under section 15310, and not under 15315.
2. Section 15310 was expressly repealed and section 15315 repealed by implication by Act No. 48, Pub. Acts 1927, and no saving clause appears therein.
3. That under the proofs submitted the motion of defendant for a directed verdict in his favor should have been granted.
1. We are not impressed that under the evidence submitted (hereafter referred to), the defendant was an agent or servant of the complaining witness, as is required to warrant the charge of embezzlement under section 15310.
2. Act No. 48, Pub. Acts 1927, provides for punishment of embezzlement by any agent, servant, or employee, or by a trustee or custodian of the property of another, and expressly repealed section 15310 and many other sections relating to such offenses, biit section 15315 is not included among them. If the offense was properly chargeable under this latter section, it cannot be well said that it was repealed by implication. The offense described therein differs much from those stated in Act No. 48, and the repeal of other sections by said act leads strongly to the conclusion that no such repeal was intended.
3. The record discloses that the defendant sought to interest the complaining witness in a syndicate known as “Sunset Park Boulevard Syndicate,” which had certain contract rights in real estate. • The interests of the several members were represented by what were called “units.” The complaining witness turned over certain bonds owned by her to the defendant with which to purchase certain of these units. It is with the embezzlement of these bonds that he is here charged. They were delivered to the defendant by the complaining witness, and the evidence warranted the finding of the jury that he fraudulently converted them to his own use. Section 15315 was first enacted in 1875, Act No. 168. In the Compiled Laws of 1897 it appears as section 11570. A conviction under a quite similar state of facts was sustained in People v. Thorne, 148 Mich. 203.
The judgment is affirmed.
Wiest, C. J., and Btjtzel, Clark, Potter, North, and Fead, JJ., concurred. McDonald, J., did not sit. | [
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Btxtzel, J.
For a period previous' to May 14, 1913, Willis L. Yeley, a defendant in this cause, was the owner of a number of large and valuable parcels of land situated in the township of Chikaming, Berrien county, Michigan. On that day, owing to financial difficulties, he deeded this land to his wife, Alice Yeley. He claims in his answer that there was no consideration for such deed, and that some time later his wife executed a deed back to him, but that this latter deed was never recorded and is now lost.
On or about April 22, 1919, defendant Yeley and plaintiff Eiler entered into a copartnership for the purpose of owning -and operating a summer resort upon these lands. The record is not clear as to what plaintiff contributed to the firm’s assets. He, however, helped to finance the business by obtaining loans which were secured by mortgages on the land. The capital of the firm consisted of the land, and in order to vest the ownership of the land in the firm and carry out its purposes, a quitclaim deed of an undivided one-half interest in the lands was executed by Alice Yeley and Willis L. Yeley and delivered to plaintiff Eiler. Both Yeley and Eiler be lieved that they became vested with the entire fee, notwithstanding the fact that the record title of a one-half interest to the land still remained in Mrs. Veley. About six weeks after the formation of the copartnership Alice Veley died, leaving as her sole heir a son, one John Fassett, who was a barber in Chicago and who would be entitled to an undivided one-half interest in the lands in which Alice Veley had the record title, provided she still owned such interest.
On May 1, 1923, Eiler and Veley entered into an agreement for the dissolution of the partnership. They then believed that they owned between themselves the entire fee in these lands. In pursuance of the dissolution agreement the land was divided into separate parcels and quitclaims were executed for the purpose of vesting the entire ownership and title of each respective parcel in the partner to whom such parcel was allotted. The dissolution agreement shows beyond any doubt that it was believed that the parties owned the property and that the quitclaims to one another would vest the entire ownership in the respective partners. Plaintiff claims that through his ignorance of the law he believed that defendant Veley upon the death of his wife became vested with the title to the property. He therefore concluded that when he deeded his one-half interest in part of the property to Veley the latter became the sole owner of the property so deeded, and that when Veley deeded his one-half interest in the property to plaintiff, the latter likewise became the sole owner of the property so deeded. It is significant that Veley and wife both joined in the deed to plaintiff when the partnership was entered into. It would indicate that plaintiff knew Veley had an interest in the property. Plaintiff claims that he came from Illinois where a husband had the right of “curtesy” in his wife’s property, and for this reason did not suspect there was anything improper in Veley joining in the deed. He does not explain any irregularity in being in partnership with one who owned no interest whatsoever in the firm’s lands. If Mrs. Veley owned all of the property and deeded a one-half interest to plaintiff on the formation of the partnership, she necessarily would have retained the remaining one-half interest, and Veley would not have had any interest in the firm’s property. Plaintiff claims that he understood a husband became entitled to a wife’s real estate upon her death, and, therefore, for the time being, he paid no further attention to the title to the property.
Subsequent to the dissolution agreement of 1923 and the execution of quitclaim deeds in pursuance thereof, Veley sold and deeded portions of the. land allotted and quitclaimed to him to several different grantees, including the present defendants Tiffany. Plaintiff has brought a similar suit to the one under consideration against other grantees.
Defendants Tiffany were tona fide purchasers for value. Through an error of the abstractor, the words “an undivided one-half interest” were omitted in the description of the property in the deed from Willis L. Veley and Alice Veley to Eiler in 1919, so that it appeared from the abstract that the entire title was deeded to Eiler, and if this were true, the entire fee in certain parcels would have been vested in Veley upon recording Eiler’s quitclaim on the partnership dissolution in 1923. Veley’s grantees were thus led to believe that they were receiving a good title to the entire fee. Plaintiff claims that he accidentally discovered that the record title to an undivided one-half interest in the property still remained in the name of Alice Veley. He thereupon went to Chicago and saw John Fassett, the sole son and heir of Alice Veley. He secured a deed from him of his interest in all of the property involved in and divided upon the dissolution of the firm. By virtue of the Fassett deed plaintiff claims a one-half interest in all of the property deeded hy Veley to his various grantees. lie has brought this suit for a partition of the property purchased by defendants Tiffany. Veley was permitted to intervene as a party defendant.
The record shows that in dealing with John Fassett plaintiff acted in an unconscionable manner. Plaintiff testified that he only told Fassett that he wanted to clear his own title and did not know whether Fassett had any interest in the property or not. He secured a quitclaim from Fassett for the sum of $250 and a promise to pay $1,250 more contingent upon the court finding that Fassett had title to the land. He did not tell Fassett what the property was worth, or that in obtaining a deed to perfect his record title he was including in the deed very valuable property of defendants and others. The defendants in this suit, as well as defendants in other suits brought by plaintiff, had made extensive and costly improvements upon their property. The land was very valuable. If Fassett owned a one-half interest in all of the property, his interest would have been worth between $30,000 and $50,000. This half interest plaintiff secured for the sum of $250 by withholding the true facts from Fassett, and further, by making him believe that all he was deeding was a doubtful interest in plaintiff’s own property.
The lower court very properly held that plaintiff did not come into court with clean hands and was not entitled to invoke the aid of a court of equity. The court also stated that Fassett must have understood that his mother had or claimed no interest in the property, or that long before 1927 he would have taken steps to enforce his rights. Plaintiff testified that Fassett had attended his mother’s funeral and had received his share of her personal effects at that time. He made no claim to the real estate.
Yeley undertook to testify in a deposition that after he deeded the property to his wife she deeded it back to him. The trial court properly excluded this testimony as being equally within the knowledge of the deceased. There was other testimony, however, to show that such a deed was executed. While most of it was inferential, one Christian Nielson swore positively to the execution of the deed. He testified that in 1917 he purchased a small parcel of the original tract of land and secured a deed; that he was then requested to withhold his deed from record until the following spring; that in 1918 he saw both of the Yeleys together at their home and told them he wanted to record his deed; that Yeley stated at the time he was making a change; that Mrs. Yeley was deeding the property to him; and that Mrs. Yeley then and there stated that she was not feeling well and had made a deed of the property to Veley; that Yeley brought out the deed and stated that he copied the description from the old deeds. Nielson testified that Mrs. Yeley was present during the conversation and stated that she had deeded the property to her husband. Yeley stated he would not record his deed until Nielson had recorded his deed. Nielson was not impeached in any manner, nor was his testimony rebutted. Notwithstanding the fact that an equity case is tried de novo in this court, we are impressed with the fact that the trial .judge had an opportunity to see the witness. The trial judge held that Nielson’s testimony, particularly in view of the other inferential facts brought out at the hearing, established the fact that Mrs. Yeley had deeded the property back to Yeley and that when Yeley and plaintiff in the dissolution agreement and quitclaim deeds made a division and undertook to vest, the entire ownership of the respective properties, one in the other, they as a matter of fact did so.
In the case of Taft v. Taft, 73 Mich. 502, plaintiff sought specific performance of an agreement by which he was to receive certain lands upon his father’s death. Certain testimony was excluded on account of the rule against testimony being equally within the knowledge of the deceased. Justice Cooley, who rendered the opinion of the court upholding plaintiff’s contention, stated:
“Under our statute concerning the acts and declarations of deceased persons, in suits against their estates, a great deal of testimony is shut out which would not be shut out between living parties. Family dealings between father and son must generally be beyond sight and hearing of third persons. Their mutual confidence precluded calling in witnesses, as it precluded here the execution of papers. If enough is shown by witnesses to make out all the elements of a contract, we must assume that much must have existed further which no third party knew.”
A similar situation arose in the case of Prendergast v. Prendergast, 206 Mich. 525, 532, in which the above quotation from Taft v. Taft was repeated. The court further said:
“Here there is an apparently disinterested and truthful witness with personal knowledge .of the occasion and circumstances of the arrangement who testifies to elements of a contract between the par ties of the nature claimed by plaintiff, though it must be conceded not to the extent claimed. What actually passed between father and son, neither can disclose. One is precluded from testifying to it by death and the other by statute.”
The trial court granted the prayer in the cross-bill of Tiffany and wife for an affirmative decree, declaring the title of the land involved to be in Yeley at the time he made the conveyance to defendants and confirming the title to said land in defendants Tiffany. In doing so we find no error.
The decree of the lower court is affirmed, with costs to defendants.
Wiest, C. J., and Clark, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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North, J.
About 10 years previous to her death, which occurred August 3, 1924, Mrs. Ectella May-hew married Dr. Edward S. Mayhew. She was previously wedded, and the three defendants in this case are children of her former marriage. Mrs. Mayhew became possessed of some property at the death of her first husband. Until approximately six months before her death, she seems to have kept the title to all of her property in her own name and to have handled it on her own account. She disposed of certain parcels and reinvested in others. In the latter part of 1923 Mrs. Mayhew became pregnant. She was then nearly 45 years of age, and the record discloses that she viewed approaching childbirth with serious alarm. She felt that she would not survive the ordeal, and witnesses for both plaintiff and defendants testified, that she repeatedly announced her intention of making a disposition of her property, stating that in the event of her death she wanted it to pass to the children of her first marriage. She was then the owner in fee of some property, and as to’other parcels her interest was that of a vendee under land contracts. With the evident purpose of carrying out her announced intention, in February, 1924, she paid to a Mr. Holm the balance of the contract price for one parcel of land, and took from him a warranty deed to herself and her son Howard as joint tenants. . This deed was recorded February '26, 1924. ' She also had title in fee to another parcel of land which she had owned since 1919. She deeded this to a Mr. Stone, February 20, 1924; and on the same day he deeded the property to Estella Mayhew, Ruth Wilhelm, and Virgil Wilhelm, “all to hold as joint tenants and not as tenants in common.” These deeds were recorded February 26, 1924. Mrs. Mayhew also had a vendee’s interest in land contracts covering six other lots. In February, 1924, she assigned her interest in the contract covering two of these lots to Mr. Stone; and in April, 1924, she made a similar assignment to him of each of the other four contracts. On the same day the contracts were assigned to him, Mr. Stone assigned each one to Mrs. May-hew and to one or more of the defendants herein “to hold as joint tenants and not as tenants in common.” These contracts, to which the respective assignments were attached, were not recordable, because they were not witnessed and acknowledged. Mrs. Mayhew retained control until her death of all the papers involved in the above transactions. But there is undisputed testimony that she told the defendants and others that she had so arranged her affairs that the property would go to the defendants upon her death, saying, as Howard Wilhelm testified :
“That she wanted her own children, Ruth, Virgil, and myself, to have the property, because we were the rightful heirs to it, and that the doctor was making enough money to take care of anything — himself and his own children.”
The plaintiff herein is the child whose birth was in prospect, and she was born May 18, 1924. Mrs. Mayhew’s premonitions as to serious consequences attending this childbirth proved unfounded, but about three months thereafter she was killed in an automobile accident. Besides having* made the above noted disposition of her real estate, on February 20, 1924, Mrs. Mayhew made a will by which she bequeathed all her personal property to her daughter Ruth. This will was admitted to probate, but the plaintiff herein, under the provisions of the statute (3 Comp. Laws, 1915, § 13790), received the same share of the personalty as she would have taken had Mrs. Mayhew died intestate. The statute cited is as follows:
“When any child shall be born after the making of his father’s or his mother’s will and no provision shall be made therein for such child, he or she shall have the same share in the estate of the testator as if the parent had died intestate. And the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.”
The bill of complaint, as originally filed, sought cancellation of the deeds and assignments above noted on the theory that they constituted a testamentary disposition of Mrs. Mayhew’s real property; or that they should be construed by the court to be subject to the provision of the statute above quoted, and the plaintiff herein should be decreed to have inherited a one-fourth interest in the real estate involved. The bill of complaint also charged that Mrs. Mayhew was induced to make the above-mentioned deeds and assignments through the fraud and undue influence of the defendant Ruth Wilhelm, who was Mrs. Mayhew’s oldest child. On the hearing* of the case, the testimony developed the fact above noted, that none of the deeds or assignments hereinbefore referred to came into the manual possession of any of the defendants until after the death of Mrs. Mayhew, but instead they were either held by her or kept with other papers in a safety deposit box with the Detroit Trust Company. After this fact appeared, permission was given to file an amended bill of complaint, wherein it was alleged that Mrs. Mayhew’s attempted conveyance of an interest in her real estate to the respective children of her first marriage was ineffectual and void for want of delivery.
By the decree of the lower court, the deeds and assignments in controversy were set aside, and plaintiff adjudged to have inherited from her mother a one-fourth interest in all the property involved in this litigation. The record does not disclose the ground on which the trial judge granted this relief to plaintiff; but it seems fair to presume that this determination resulted from a finding that there was no delivery of the deeds or the assignments.
It would serve no practical purpose to review in detail the testimony given on the hearing of this case. We have considered it carefully, and are thoroughly convinced the proof does not sustain plaintiff’s allegation that the deeds and assignments which she seeks to have set aside were obtained by fraud, deceit, or undue influence. On the other hand, it conclusively appears that in making this disposition of her property, Mrs. Mayhew carried out a well-considered and definite plan by which she sought to create in her property a joint estate with the children of her first marriage, so that upon her death title would vest in them.. Two questions are presented: (1) Were the transactions by which Mrs. Mayhew sought to create a joint tenancy between herself and the children of her first marriage testamentary in character? and (2) Are the instru ments in which the defendants are named as grantees or assignees invalid for want of delivery?
Under the facts and circumstances of this case, we are satisfied that the deeds and assignments here assailed were not testamentary in character. This conclusion is sustained by the reasons appearing in the record which Mrs. Mayhew assigned for wishing this property to pass to the children of her first marriage, and also, to some extent, by the fact that she lived substantially three months after the child’s birth, in anticipation of which she seems to have consummated these transactions, but at no time did she undertake to nullify or set aside these conveyances. The fact that she made a will at the same time and did not include therein a disposition of any of her real estate is quite indicative of the fact that she looked upon her deeds and assignments as instruments that vested in her children a present interest, and that she did not intend them to be of a testamentary character. So far as it was possible, she caused these conveyances to be recorded, thus putting revocation beyond her power. In determining whether an instrument is of a testamentary character, it is permissible to- examine its contents (Sprunger v. Ensley, 211 Mich. 103), and, if necessary, to consider extraneous circumstances (Murray v. Kator, 221 Mich. 101). Nothing appears in any of these deeds or assignments which tends to indicate that they were executed to accomplish a testamentary purpose. Nor do we find testimony in this record of extraneous facts or circumstances which would justify such a conclusion. Not being instruments of a testamentary character, they do not come within the provision of the statute above quoted.
Plaintiff’s contention that the deeds and assignments here involved were not delivered is not sus tained by the proof. Mrs. Maybew was named as a joint tenant along with one or more of her children in each of the instruments here claimed to be invalid for want of delivery. But the undisputed proof shows conclusively that each and every one of these instruments was delivered to Mrs. Mayhew. She was one of the joint grantees; and delivery to one of several joint grantees, in the absence of proof to the contrary, is delivery to all of the grantees. Eshleman v. Henrietta V. Co., 102 Cal. 199 (36 Pac. 579). Further, as noted above, in so far as the instruments involved were capable of being recorded, Mrs. Mayhew had them recorded forthwith. She told at least one of the defendants that these papers were left for them with the trust company. Under the circumstances disclosed in this record, we think there is satisfactory proof of delivery of all of the instruments which the plaintiff seeks to have nullified.
Plaintiff has not established her right to the relief sought in the bill of complaint, and it is dismissed, with costs of both courts to the appellants.
Wiest, C. J., and Btjtzel, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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Butzel, J.
Plaintiff filed a bill for separate maintenance and support against her husband, the defendant herein. The bill alleges that defendant was guilty of extreme cruelty in that he displayed a vile and ungovernable temper; in that he called her loathsome names in the presence of their daughter and friends; in that he was miserly and did not provide plaintiff with necessary clothing or the simple comforts of life, or with the cheapest forms of entertainment ; in that he had not bought any new clothes for himself since his marriage to plaintiff in Belgium some 21 years previous; and in that plaintiff herself had been compelled to work during a large part of her married life. The bill alleges that plaintiff had by her work and savings contributed to the accumulation of numerous parcels of real estate and land contracts, all of which, with the exception of one small parcel hereinafter referred to, were held in their joint names.
Defendant in his answer categorically denied plaintiff’s charges, and in a cross-bill sought an absolute divorce. He also charged plaintiff with extreme cruelty, in that she had an ungovernable temper; in that she had repeatedly struck defendant, one time cutting his head open with a saltcellar which she threw at him, and several times she attacked him with kitchen knives, one. time cutting his shirt and shoulder before she could be stopped; in that she had frequently blackened his eyes, had refused to cohabit with him and cook meals for him for long periods at a time.
Plaintiff subsequently amended her bill of complaint and asked for an absolute divorce. After the suit had been begun, efforts for a reconciliation or a division of the property failed.
The testimony shows that the parties were hardworking and thrifty Belgians, who had migrated to this country approximately 21 years prior to the beginning of this suit. Defendant was a blacksmith and worked hard at his trade or at such other jobs as he could get, notwithstanding a physical infirmity. He worked almost continuously during his married life. For a time when he was incapacitated on account of illness and during other long periods, plaintiff had also worked. She assisted at confinements, took in washing, and went out by the day to do housework. There is no question but that both parties worked hard and industriously, and their accumulation of property is the result of their joint efforts and savings. All the property stands in their joint names, with the exception of one lot, which plaintiff is acquiring in her own name in order to give their 16-year old daughter a dowry upon her marriage. Defendant complained about this, and it only added to their differences.
Plaintiff failed to establish her charges by sufficient evidence so as to satisfy the trial court that she was entitled to the relief prayed for. A careful reading of the record shows that while defendant gave her much provocation, and particularly in his refusal to purchase clothes so as to be presentable in the society plaintiff wished to go in, nevertheless, there is no such cruelty on the part of defendant shown by the record as to entitle plaintiff to a decree of divorce. Plaintiff’s more serious charges against defendant were shown only by her own testimony; there was no corroborative proof given. On the other hand, plaintiff in her own testimony not only negatived many of her charges against defendant, but also in a large part admitted and proved serious charges set forth in defendant’s cross-bill. She substantiated the charges of cruelty made by him. She admitted that she had refused to perform housework; had thrown a saltcellar at defendant so that his head was cut open; had attacked him with a knife; had ceased to love him for four years; had refused to cohabit with him; and on further questioning said she “didn’t want him any more.” When asked for the reason, she said she was “tired of him, that was all. ’ ’
It is needless to go into the sordid details of a very unhappy association. Police aid was invoked a num ber of times when the disturbances became violent. Plaintiff showed on the witness stand that she was of a quarrelsome disposition, and while defendant was not free from blame, and there is much to criticize in defendant’s conduct, nevertheless, plaintiff was not justified in her actions. She was guilty of extreme cruelty. The remarks of both the trial judge and counsel show that defendant gave his testimony either in such a low voice or in such an incomprehensible manner that the trial court stated during the hearing that he had not understood one-half of what defendant had said. Evidently, the stenographer, who was near the witness, was able to correctly report the testimony. It is fully set out in the record. The parties came near settling their property differences, but were not able to reach an agreement.
The court dismissed both the bill of complaint as amended and defendant’s cross-bill. This was error. Plaintiff failed to prove her charges. Defendant, with plaintiff’s assistance, proved his charges as cross-plaintiff. The fact that defendant provoked some of plaintiff’s wrongful conduct only to a slight degree justified plaintiff’s actions. Were the parties almost equally to blame, the trial court would have been correct in his conclusions. We find, however, that defendant as cross-plaintiff has proven his charges of extreme cruelty against plaintiff. Plaintiff has failed to prove her charges. Defendant is entitled to a decree of divorce on his .cross-bill.
Somewhat similar situations have presented themselves to this court before. In the case of Rieden v. Rieden, 206 Mich. 550, the court held as follows.:
“The evidence tends clearly to show that the defendant is a woman of violent passion, and that she was guilty of many acts of personal violence and neglect of wifely duty in her conduct toward the plaintiff. There would be no profit in here setting forth that testimony. It is sufficient to say that it shows such a condition of ill-will, if not hatred, between the parties that there is no hope of reconciliation ; and we agree with the conclusion reached by the circuit judge, that a decree of divorce should be granted in the case. As this court said in Utley v. Utley, 155 Mich, at page 259: ‘We are impressed that the parties should be relieved entirely of the relations entered upon with their marriage.’ ”
In the case of Tiffin v. Tiffin, 209 Mich. 232, the lower court held that the parties were equally to blame and refused a divorce. This court, after reviewing the testimony, reversed the decision of the lower court, and granted a decree of divorce to the plaintiff. The court stated as follows:
“We recognize the rule that this court ought not to lightly reverse a decree, where the chancellor has seen and heard the witnesses, and has had the advantage of determining their credibility; nevertheless we are not thereby relieved of the duty of exercising our own judgment in passing upon the evidence in the case.
“A careful consideration of the evidence has led us to differ from the opinion of the trial court that the parties are equally to blame. The extravagant charges contained in defendant’s cross-bill (plaintiff’s bill) have not been supported by any testimony save his (her) own, in many important instances. By this we do not mean to hold that under the testimony the plaintiff (defendant) has been entirely blameless. ■ That she has been imprudent appears by her own cross-examination. That the defendant (plaintiff) has been guilty of repeated acts of personal violence, amounting to extreme cruelty, is undisputed,”
The last-quoted language would almost fit the present case at issue were we to interpose plaintiff for defendant.
Plaintiff’s counsel stated in his oral argument that defendant was willing to make a fair division of the property so that plaintiff would receive approximately 60 per cent, thereof. If that is true, •there should not be any difficulty in arriving at a property settlement. Plaintiff should receive at least one-half of it, as it represents her labor and savings as well as that of defendant.
Error is claimed, in that the proceeds from joint property, which were paid to the friend of the court during the period the case was pending to await the outcome of the case, were ordered to be distributed equally between the parties. It is unnecessary to discuss this claim of error, inasmuch as all of the property will now be divided.
The case is reversed, with costs to defendant as pross-plaintiff.
A decree of divorce is granted in favor of defendant as cross-plaintiff, against plaintiff as cross-defendant. The case is remanded to the lower court with instructions to make a fair division of the property between the parties.
Forth, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
North, J.
The plaintiff company employed Ivan Blood as a truck driver. He was killed and plaintiff’s truck badly damaged in the accident out of which this suit arises. The plaintiff, in its own behalf and in behalf of the insurance company which carried its employer’s liability risk, brought this suit to recover approximately $4,200 paid under the workmen’s compensation act (2 Comp. Laws 1915, § 5423 et seg.) to the widow of Mr. Blood, and to recover for the damage to plaintiff’s truck. The jury rendered a verdict for $6,711.99 in favor of the plaintiff; but on motion, non obstante veredicto judgment was entered in favor of the defendant. Plaintiff reviews by writ of error.
Blood attempted to deliver to the defendant certain goods to be shipped by freight over defendant’s railroad, and for that purpose drove the truck into its railroad yards at the easterly end of its freight house. The driveway extends northerly from this point and is crossed by 11 side tracks extending in an easterly and westerly direction. The car into which Blood was to load the freight he was trucking was located on the northerly one of these sidings. Side track number seven as it extends west of the driveway passes close to the north side of defendant’s freight house. Plaintiff claims that as Blood approached within approximately four feet of track number seven he stopped his truck, made an observation, and then started to cross; that seven loaded freight cars, to the east end of which one of defendant’s locomotives was attached, were standing 25 or 30 feet east of Blood’s position, and, just as he was going upon the side track, this string of cars was suddenly started, collided with the truck, and knocked or pushed it against the defendant’s freight house where it was crushed between the building and the moving freight cars. Injuries were inflicted upon Mr. Blood from which he died about a month later. The negligence charged against the defendant company is that the freight cars in question were suddenly and negligently pushed across the driveway without warning to the driver. of plaintiff’s truck either by bell, whistle, or by any employee in charge of the moving cars.
On the other hand, it is the claim of the defendant that there was no negligence on the part of its servants in the operation of the train, and that the collision with plaintiff’s truck was caused by the negligence of the driver. Defendant claims that Blood did not stop the truck as he approached this side track; but instead drove rapidly towards the track, slowed down as he approached it, and then stopped the truck too near the track, or that his truck was struck just as he reached the siding. One eyewitness testified Blood “stopped his machine with the wheels right centered between the two rails, ’ ’ when the approaching freight cars were within four to six feet. It is claimed by defendant that Blood did not use ordinary care in making proper observation, otherwise he would have seen the freight cars approaching from the east at a rate of six or seven miles an hour. It is defendant’s claim that these freight cars were not stopped at all as they approached this crossing, that the brakeman on this train was riding on the forward moving car, and that he saw plaintiff’s driver approaching with the truck but under such circumstances that it led him to believe the driver would stop before attempting to cross the tracks; and that, when he discovered that the driver was not about to stop before attempting to cross, the brakeman called to him and did all he could to stop the train, but it was then .too late to avoid the accident by stopping the moving cars. Immediately before the collision an emergency stop signal was given, and the train stopped in approximately 15 feet.
We are not here concerned with the conflicting claims of the respective parties as to how this accident happened, except for the purpose of determining whether it appears that as a matter of law the driver of plaintiff’s truck was guilty of contributory negligence. The trial judge entered the judgment non obstante because he found that it was physically impossible for this accident to have happened in the manner asserted by the plaintiff; and that the driver of its truck was guilty of contributory negligence.
The facts surrounding the accident, construed in accordance with plaintiff’s claim and in the manner most favorable to him, are as follows: Plaintiff’s driver stopped the truck approximately four feet south of the siding. The nearest of defendant’s seven loaded cars with a locomotive attached was standing 25 or 30 feet east of the truck. Plaintiff’s driver started to cross this siding, and while the truck was moving at most not to exceed eight or ten feet the defendant’s cars were started from a standing position and moved 25 or 30 feet to the point of collision. That the accident happened in this way is not only incredible but obviously impossible. We are forced to accept the only other alternative, namely, that defendant’s freight cars did not stop as they approached the point of collision. The accident happened in daylight hours, the driveway was paved, and there is no testimony that plaintiff’s truck was stalled before the accident. The driver had an open view to.the east, the direction from which the cars were approaching. His failure to see them, or if he saw them, his attempt to cross in front of them, was contributory negligence. The disposition to be made of cases of this character is controlled by West v. Railroad, 229 Mich. 590; Brady v. Railway Co., 248 Mich. 406, and other like decisions. We are satisfied that the circuit judge was right in his conclusion that plaintiff’s theory and testimony as to the manner in which this accident happened was physically impossible.
We have given consideration to plaintiff’s claim of right to recover on the theory of subsequent or discovered negligence, but we are convinced that this theory is not tenable under the facts of this case. The only conclusion to be drawn from this record is that the collision occurred instantly after the peril of the situation was discovered. The judgment of the lower court is affirmed, with costs to the appellee.
Wiest, C. J., and Clark, Potter, Sharpe, and Fead, JJ., concurred. Bijtzel and McDonald, JJ., did not sit. | [
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McDonald, J.
The plaintiff reviews by certiorari an order of the department of labor and industry in which she was denied compensation on a claim that she was a dependent of her deceased son, Harry Estrin, who was drowned on August 1, 1928, while employed by the Workmen’s Circle Colony, Inc. The Colony was conducting a summer camp for children at South Haven, Michigan. Harry Estrin was employed as physical instructor. In addition to other work, he had charge of the swimming activities. At the time of his death, he was with a group of children in the lake. A little girl got beyond the sand bar. He went to her rescue. On account of a strong undertow both were drowned. His mother, claiming to be a dependent, filed an application for compensation. The deputy commissioner who heard the claim found that she was partially dependent and allowed her $7.18 a week for a period of 300 weeks. The defendants appealed, claiming that the evidence did not show dependency. The plaintiff also appealed, claiming that compensation should have been allowed for total dependency. On the hearing before the board, compensation was denied on the theory that the plaintiff was not wholly or partially dependent.
It is conceded that the accidental drowning of Harry Estrin' arose out of and in the course of his employment. The only question involved is the plaintiff’s dépendency.
' The opinion of the commissioners is not as definite in many particulars as it should be. As we understand it, they accepted the plaintiff’s testimony on the material facts of her claim but denied compensation on the ground that because others shared in her contributions from the deceased it was not possible to determine the degree of her dependency. We quote from the opinion:
“Is the fact that five other people shared in the contributions made by deceased fatal to plaintiff’s claim? In other words, does her testimony fall by its own weight? The commission are of the opinion that it does.
_ “ The commission must find that if plaintiff’s testimony is true she was not the only one that was dependent on decedent for support and maintenance ; that besides the father being a dependent there was the dependency of the son Nathan. (How can the amount of contributions for plaintiff be determined in view of plaintiff’s testimony?)”
Though other members of the family benefited by contributions to the mother, it does not follow that they were partially dependent on the deceased within the meaning of the statute. But that question we need not discuss, because it does not interfere with a determination of the amount of contribution to the mother. We are unable to understand why the commissioners found it impossible to ascertain what proportion of the contributions were solely for the mother. The facts show that she had no property and looked, to the deceased for support. All other members of the household were wage earners, She was the business end of the family, which consisted of herself, her husband, three sons including the deceased, and a niece. The total household expense was $48 a week, of which the father, who was a carpenter working for union wages, contributed $7; a son, Benny, contributed $7; Nathan, -a young lad who earned money from the sale of newspapers, contributed $2; and the niece, $7, making a total of $23. Harry, the deceased, contributed $25 a week. All of these contributions were made to the mother. She testified that the expense of board and room for each member' of the family was $8 a week. Harry’s earnings for the year preceding his death averaged $45 a week. With these facts as a basis, it is a simple matter to determine how much of Harry’s contribution went to the mother personally. It can be done by deducting the cost of his support plus the amount he contributed to other members of the family from the amount he paid to his mother. If there be no difference there is no dependency. If there is a difference, it represents the degree of her dependency. She received from the deceased $25 a week. Of this she devoted $9 to the support of other members of the family above the amount they paid her. His board and room cost her $8, leaving a balance of $8 in her hands. This amount shows her dependency on him for her support to the extent of $8 a week. With this and other material facts before it, the board had but to apply the rule laid down in Kostamo v. Christman Co., 214 Mich. 652, to determine the compensation to which she was entitled.
The board is trier of the facts. We have frequently said that we will not disturb a finding of fact that has support in the evidence. But in this case denial of compensation is not based on a finding of the facts. It is based on a failure of the board from the evidence before it to make a finding as to the proportion of the contribution that went to the mother. The order is reversed, and the cause remanded for the purpose of determining the amount of contribution to the plaintiff and fixing her compensation under the rule in Kostamo v. Christman Co., supra. The plaintiff will have costs.
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Wiest, C. J.
June 18, 1917, plaintiff went to defendant bank and paid $990, to have a credit of 4,000 rubles established for him in the Moscow Government Savings Bank at Moscow, Russia, with a passbook returned and delivered to him. Not receiving the passbook from defendant, he brought this suit to recover the money paid, and, upon trial by jury, had verdict, but, notwithstanding, the court entered judgment for defendant. Plaintiff reviews by writ of error, and defendant alleges cross-errors upon the trial.
If the judgment is right, in point of fact most favorable to plaintiff and applicable law, it must be affirmed. When the case was here before (244 Mich. 557), we stated two issues of fact to be submitted upon a new trial. Such issues have been submitted to a jury and both found as claimed by plaintiff. At the trial under review, some new evidence was introduced and presents the question of law we will now consider.
The contract for establishment of the credit was silent as to ways and means, and, therefore, defendant was authorized to employ the usual and approved method adopted by banks. The defendant bank handled the matter in the usual and approved way by sending its check for the amount to the foreign exchange department of the American Express Company, New York City, accompanied by instructions to cause the credit to be established in the Government Savings Bank in Moscow. The express company had a large deposit in the Russian Asiatic Bank, its correspondent, at Petrograd, one of the then principal banks in Russia, and sent its check to the Petrograd bank with instructions to establish the credit in the Moscow bank. By letter, dated Petrograd, August 22, 1917, the Russian Asiatic Bank acknowledged receipt of the express company check and the instructions. Whether the credit was established by the Petrograd bank in the Moscow bank is not known or possible of finding out, for the Bolsheviks overthrew the provisional government in October, 1917, and, according to the undisputed evidence of a former Russian lawyer, judge, prosecutor, and man of affairs, who lived in Petrograd in October, 1917, and visited Moscow each week, had dealings with the Russian Asiatic Bank in Petrograd, and was familiar with the Government Savings Bank in Moscow, and is now a sweeper in the Ford factory in Detroit, the Bolsheviks seized and confiscated all the banks and destroyed their records. If this confiscation by the Bolsheviks was after the credit was established by the Petrograd bank in the Moscow bank, then defendant performed all it had agreed to do, except to obtain and deliver to plaintiff a passbook from the Moscow bank. A passbook, under such circumstances, would not be worth the paper employed, for, in such case, plaintiff’s money was lost after reaching the place where he had directed it to be deposited. We must assume what has just been stated, or that the Moscow bank was confiscated and ceased to exist before the deposit to plaintiff’s credit reached there, and, in such event, the destruction of the Petrograd hank rendered stoppage not only impossible but futile, and the destruction of the Moscow bank made it impossible, because of the nonexistence of that bank, to execute the contract as well as to render an effort to that effect absolutely useless, for both banks were destroyed.
The circuit judge was requested by defendant to instruct the jury:
“Because of nonexistence of the Bank of Moscow, that your verdict be for the defendant in no cause for action.”
That instruction was not given, although the court stated:
“It is further claimed that the defendant performed its part of the contract by sending the rubles to the bank in Russia, with instructions what to do with them, and by reason of the fact that the bank in Russia ceased to exist, a fact for which the defendant was in no way responsible, and cannot be liable to the plaintiff in this case.”
The court did not instruct the jury what use to make of this defense if established by the evidence.
History tells us that Russia was in turmoil, commencing with the revolution which culminated in the abdication of the Tsar on March 15, 1917, and the establishment of the provisional government which, in turn, was overthrown by the Bolsheviks in October, 1917.
Plaintiff having designated a bank in which defendant should establish a credit in his behalf, and it appearing that defendant, in the usual course, paid to have such credit established, and having traced the transit of the money to the bank in Petro grad, and it appearing that the bank in Petrograd and the bank in Moscow, selected by plaintiff, were confiscated and destroyed by the Bolsheviks, the defendant is not only excused from furnishing plaintiff with a passbook but is not liable in this action.
The contract was executory. In designating the Moscow bank as the place for defendant to establish the credit by deposit, the law implied, in the absence of express stipulation on the subject, that the parties dealt with a view to the continued existence of the designated bank, and, when defendant established the fact that, in the usual and approved course of carrying out the terms of the contract, it purchased and paid for the 4,000 rubles and the credit therefor was established in the Petrograd bank, with direction to transmit the credit to the Moscow bank, and both banks were confiscated and credit' therein rendered worthless, the loss is not to be placed upon defendant. Nondelivery of á worthless passbook did not result in any loss to plaintiff.
The judgment is affirmed, with costs to defendant.
Potter, Sharpe, and North, JJ., concurred. Clark, J., concurred in the result. Bijtzel and Fead, JJ., did not sit. McDonald, J., took no part in this decision. | [
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] |
Champlin, J.
Defendant was convicted upon his plea of guilty to an information charging him with receiving stolen property of the value of $25, knowing it to have been feloniously stolen. He had the aid of counsel before entering the plea, and, after a private examination as required by statute, the circuit judge sentenced him to imprisonment in the State prison at Jackson for the term of four years. By another counsel he sued out a writ of error, and afterwards, upon an application to, and allowance by, the Chief Justice, a writ of certiorari was issued to the circuit judge, who has made return negativing all the material facts stated in the affidavit for the writ upon which allegations of error were ■based.
It is now assigned as error—
“1. There is no allegation or averment of any kind in the information:
“ a — That defendant’s conviction of receiving stolen property was other than a first conviction for a like offense.
“b — That the act of stealing said stolen harness received by defendant, and for which he was convicted, was not a' simple larceny.
“e — That defendant made no restitution' or satisfaction of any kind to the party from whom the harness received by defendant was stolen.
“Nor is any one of said matters a, b, and c set forth in said information.
“2. Nor are the same things above mentioned, or any of them, entered or contained in the judgment of said court in said case, or in any of the proceedings therein.
“3. Nor is there any inquiry, finding, or determination of any kind by the court, or by a jury, of record or otherwise, showing any or all the matters set forth in a, b, and c, above mentioned.”
It is not necessary that the information should contain any allegation of the kind specified in the first assignment of error. These are all matters which are proper to be brought before the court by the defendant, and go in mitigation of the punishment to be inflicted. Unless charged as a second offense, it is presumed that the prosecution is for a first offense.
The judgment followed upon the plea of guilty, and it was not necessary that any of the matters alleged in the first, assignment of error should appear in the judgment.
No error appearing upon the record the judgment is affirmed.
Sherwood and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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57
] |
Morse, J.
In October, 1883, the complainant filed his bill of complaint against the defendant, asking for the specific performance of a certain agreement or contract, made between one Albert Chick and the defendant, bearing date May 4, 1869, for the sale and purchase of the west half of the •south-east quarter of section 8, township 9 north, of range 13 east, in the county of Sanilac.
It appears from the evidence that, on the last-mentioned day, Chick, who was living with his brother-in-law, Henry A. Horton, at North Branch, in Lapeer county, paid the defendant $75, and was handed an agreement or receipt reading as follows:
“Received of Albert Chick seventy-five dollars, as part payment on a certain piece of land described as follows: West half of south-east quarter of section eight, town nine north, of range thirteen east, being in Sanilac county and State of Michigan.
“Theundersigned agrees to make and deliver to the said Albert Chick a bond for a warranty deed on or before the first day of January, 1870. Said bond is to express the several payments that is to be made, and the amount remaining to be paid.
“Rob’t G-. Brown.
“Dated this fourth day of May, A. D. 1869.”
JThe defendant was then residing on a farm, where Brown ■City is now located, in the county of Sanilac.
Before the time for completing the arrangement and delivering the bond for a deed, Chick left the State, and has never since been heard of or from by the defendant. He is now supposed to be in Dakota or Manitoba, but his existence is not certain.
Horton claims that he lent the money to Chick to make the payment of the $75. Chick left the receipt with Horton when he went away. In January, 1870, Horton took the receipt and went to see Brown. A day was appointed for another meeting at the store of one Bruce, but the defendant, being sick, did not attend, but sent his nephew with a letter to Mr. Bruce, and a copy of a contract to be filled out and signed by Horton, the agent for Chick, if it was thought he had power to do so.
Horton paid Bruce for defendant $30.29, and took the following receipt:
“Received of Albert Chick, by the hand of H. A. Horton, $30.29, amount of interest and balance of taxes due up to this date on the land contract.
“R. G. Brown,
“per J. G. Bruce.”
The contract sent to Bruce was never filled out or signed by any one.
Some time between this and 1873, Horton called upon the defendant. He claims that he wanted Brown should execute the agreement, or pay back the money. Brown and his wife testify that he said nothing about the agreement, but simply asked to have the money paid back to him. Brown says he told Horton that, if Chick would come back and pay the , interest and principal, he could have the land, for he did not want it. Horton did not then know whether Chick was-dead or alive, as Brown swears he told him.
Here ended all talk about or demand upon Brown for the land, or the money paid him, until February, 1883, at which time the complainant made him a tender of the amount due upon the contract, and demanded a deed of the land. Webster obtained an assignment from Chick through Horton, dated December 5, 1881.
Brown took no steps to forfeit the contract, but treated the same as abandone^, and made about $100 of improvements upon the land. By the opening of a railroad through the country near the land, it has become quite valuable, being worth at the time the bill was filed from $1,500 to $1,800.
The court below granted a decree for specific performance, unless the defendant should elect to refund to the complainant the amount of money paid him, with interest; such sum being fixed at $236.56.
There was not enough of this agreement to constitute a contract for the sale of lands. It was insufficient to answer the requirements of the statute of frauds. It did not specify the purchase price, and failed to express -the time or times of payment. Under the decisions of this Court, such a contract must be complete in itself, and leave nothing to rest in parol. Hall v. Soule, 11 Mich. 494; James v. Muir, 33 Id. 223 ; McElroy v. Buck, 35 Id. 434; Gault v. Stormont, 51 Id. 636.
At most, it is but an agreement to make a land contract. Its terms cannot be helped out or ascertained by the letter sent by defendant in June, 1870, to Bruce, as such letter simply contained instructions to Bruce how to fill out the contract, if one should be executed. The contract was never executed, and the letter can form no part of the original contract.
Besides this, complainant has no equity, as shown by the proofs. For 13 years this agreement was virtually treated as abandoned by all the parties to it.
When the land becomes valuable, Chick is hunted up, an assignment made to complainant, and an attempt made to revive it, and obtain the premises.
The delay in this case is entirely inconsistent with any good-faith claim on the part of complainant that Chick intended to carry out this agreement. It will' also be noticed that Chick has never made any agreement to purchase the land, or pay any price for it at any time or times. There is no evidence that Chick, after he left the country, ever paid any attention whatever to the contract.
In order to get the assignment, Horton had to find Chick, and send it for execution to .him at Manitoba.
The decree cannot be sustained. It would not be equitable to decree a specific performance of this agreement, which is not complete, or legal, and which has Nen practically abandoned for so many years.
The bill does not pray for a repayment of the moneys named in the receipts, and conld not be maintained for that purpose alone. There was no warrant for that part of the decree of the court below.
The decree is reversed, and the bill will be dismissed, with costs of both courts.
The other Justices concurred. | [
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67
] |
Campbell, C. J.
Plaintiff sued defendant to recover back ■overpayments on a mortgage. The excess which he received .seems to have been due to compounding of interest. There is not much dispute as to the amount, but only as to the’ liability to plaintiff, or liability in this action.
In 1868, plaintiff’s husband bought 240 acres of land of one Ryan, and gave back a purchase-money mortgage for the unpaid part of the price, and this was assigned to defendant. This land was convejed subsequently to plaintiff, who made all the overpayments. In December, 1885, plaintiff, who wished to get the money at lower interest then 10 per cent., and who was illiterate and old, made efforts to find some one who would let her have money cheaper, and found that Miss-Lorraine Wood was willing to do so. Payments had been made without reference to particular arrears of principal or interest, and plaintiff had not received or retained reliable receipts or minutes, and had trusted defendant to inform her correctly. When applied to, he insisted that a balance of $6,500 remained due, and would take no less. Miss Wood did not care to lend over $6,000. An arrangement was made whereby plaintiff gave defendant a chattel mortgage for $500, afterwards paid, and defendant assigned the mortgage to Miss Wood, who received guaranties from plaintiff and Mrs. Murray, her grantee of part of the premises, that there was $6,000 due.
Several points made on the trial and in this Court seem to us not very important, as the facts as presented to the jury admit of but one result.
Defendant covenanted with the rest that there was $6,000 due. All of them were estopped from claiming anything less. If any money had been paid beyond what would have left this sum due, it was therefore money paid without consideration, and, as plaintiff paid the whole of it, she alone could recover it back. The only possible pretext for requiring or receiving it was that the parties had agreed it might be taken for forbearance. But this the jury have negatived. They have also negatived payment on any other idea than an honest ignorance of the state of the account, and a reliance on defendant’s statements of the proper balance. The legal' theories were all properly laid down by the court, and, as we can see no theory which would exonerate defendant from refunding, we are not disposed to theorize on the subject.
There is no error in the judgment, and it must be affirmed.
The other Justices concurred. | [
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] |
Morse, J.
The commissioner of highways of the township of Brown, in the county of Manistee, proceeded to lay out a highway through the lands of the plaintiff in error.
The commissioner’s return of his proceedings fails to show that he met those interested “ at the house of Andrew Collins,” the place specified in his notice, but sets forth that “at the time mentioned in said notice” he proceeded “to view the premises.” It appears, however, from the affidavit of the plaintiff in error, upon which' the writ of certiorari was granted, that, “at the time and place specified” in said notice, the plaintiff in error and other persons appeared and met the commissioner, for the purpose of being heard in opposition to the proceedings to establish such highway. The plaintiff, therefore, cannot complain of this omission in the commissioner’s return. The commissioner, by Boiler’s own showitig, did meet at the time and place designated in the notice, and he was there at the meeting.
He complains further that the commissioner would not give him or his witnesses a hearing, but arbitrarily proceed*, d to lay out the highway, awarding him no damages, and that the commissioner’s report does not show that any damages were claimed. He thereupon appealed to the township board, who decided against him, as he claims, by dismissing his appeal arbitrarily, and without giving him a hearing, or swearing any witnesses, and assessing costs against him.
In the circuit court the judgment of the township board was annulled, and Soller awarded costs against the board.
The board bring the matter into this Court upon writ of error.
It appears from the return of the board, which also contains a transcript of the record of their proceedings, that Soller appeared before the board, and through his attorney, R. W. Smith, asked that the proceedings of the highway commissioner be quashed and held for naught, for the reason that such commissioner had not, as shown by his report, taken all the steps required by the statute to be taken in the premises, and because the report did not show that the parties affected by the proposed highway had any opportunity to be heard; that the proposed highway is within one-half mile of and parallel to an existing highway; and that the report of the commissioner does not show any damages allowed the owner of land proposed to be taken.
The return further shows that he did not claim any damages before the board, but, when asked by them “ whether his appeal was a question of damages or not,” answered: “No, we want these proceedings of the commissioner quashed.” The township board then decided that the proceedings of the commissioner were regular, and that, inasmuch as a highway running diagonally through the same premises of plaintiff in error had been taken up, the existence of which would have been of more damage to him than the proposed highway, therefore there was no necessity for the commissioner to state in his report that any damages had been allowed.
It does not appear anywhere in the record that Soller offered to have any witnesses examined before the board upon the question of damages, but it is satisfactorily shown that he relied upon irregularities in the action of the commissioner, and that he was heard thereon.
The decision of the board was Anal and conclusive. How. Stat. §§ 1303, 1303.
There are no peculiar or exceptional circumstances indicating that any special grievance will result from the denial •of the writ in this ease. He chose to take advantage of his statutory remedy as to the action of the commissioner, and must be content with the result thereof. Burt v. Commissioners, 33 Mich. 190; Brody v. Tp. Board of Penn, Id. 272; Prescott v. Patterson, 44 Id. 525.
The writ of certiorari in this case must be quashed, and the judgment of the circuit corrrt for the county of Manistee reversed, vacated, and annulled, with costs of both courts.
Sherwood and Champlin, JJ., concurred.
Campbell, C. J., did not sit. | [
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Sherwood, J.
Wright Brothers, on or about the fourth day of April, 1885, gave a mortgage to the plaintiff on a stock of goods, to secure the payment of a note of $700 for money obtained about a year before, the note being payable on demand.
The firm of Wright Brothers was composed of Cyrus Wright, who was husband of the plaintiff, and his brother, Charles O. Wright; and the firm, in the month of March, 1886, were unable to pay the note and mortgage. The plaintiff demanded payment, but failed to obtain the same, and thereupon commenced a foreclosure of her mortgage by taking possession of the mortgaged property, the mortgagors turning it out to her upon her claim.
The plaintiff had been in possession of the goods about four or five days, as she testifies, when the defendants, having obtained a judgment against her husband and his brother for goods sold, took out execution thereon, and levied it upon the goods of the plaintiff thus taken and turned out to her upon the mortgage, and took possession of the same, and locked up her store. Defendants refused to deliver the goods to plaintiff on demand, and, after keeping them several days, the plaintiff brought this suit for their recovery in the Wayne circuit court, where the cause was tried before a jury, and the defendants were allowed to recover the amount of their execution, $42.72, and the plaintiff brings error.
Two errors are assigned upon the rulings of the court in rejecting testimony offered upon the trial.
It was the contention of the defendants that the mortgage was fraudulent as against the creditors of Wright Brothers, that the plaintiff gaye no consideration for the same, and that she never took possession of the mortgaged property; and, for the purpose of showing these three things, she was cross-examined at considerable length.
Among other things it appeared from her testimony that she and her husband lived in the second story of the building occupied as a store; that when she was married she had five or six hundred dollars of her own money, and an interest in a farm, and since has obtained an interest in a house and lot in Detroit; that, the year before the mortgage was given to her, she loaned Wright Brothers $100, and that her mother-in-law loaned to them $600; that when she took the security the mother-in-law desired her to take it for both amounts, and transferred the $600 claim to the plaintiff, and took plaintiff’s note back for the same, and the plaintiff took the mortgage for $700. .
On her cross examination the plaintiff was interrogated as to what she gave for the mother-in-law’s claim, and as to what moneys she had paid upon the note given to the mother-in-law, and the amount thereof, and dates, before the defendants levied upon the goods, and the moneys she had received, and who from.
On the redirect examination the plaintiff’s counsel sought to introduce her bauk-book for the purpose of showing the receipt of the money, and the dates. This was not permitted by the court, and plaintiff’s counsel excepted. The court also refused to allow the witness to produce the book containing a statement of the amount of money she had paid to her mother-in-law before the defendant’s levy upon the goods.
Under the circumstances of this case, the proof should have been permitted. The cross-examination of the plaintiff upon this subject was evidently made with a view to discredit the plaintiff’s testimony, and in the re-examination she should have been permitted to give such facts in evidence as would tend to support her statements, and remove any impressions in that direction the cross-examination may have made. What the plaintiff paid, and promised to pay, the mother-in-law, constituted the consideration she paid for the mortgage, and which these defendants sought to impeach by showing no consideration. The testimony offered was not only proper, but material. Both books were admissible for the purpose offered and should have been received. This disposes of the twelfth and thirteenth assignments of error.
The plaintiff requested the court to instruct the jury as follows:
*fl. It appears from the evidence that Wright Brothers, grocers, April 4, 1885, executed and delivered a chattel mortgage for the sum of $700 to the plaintiff, who is the wife of one of the firm.
Mrs. Wright testifies that she actually loaned this money to the firm; that part of the money ($600) was originally loaned by the mother-in-law to her two sons, without security; that afterwards Wright Brothers gave her a noce for $700, and she gave her mother-in-law a note for $600, upon which she has paid interest, and something like $200 c.f the principal.
“3. It appears also that this mortgage, was given some time before the defendants trusted the firm of Wright Brothers, and was on'record, and that the defendants had full notice thereof at the time the goods were sold and shipped. The defendants, therefore, cannot say that this mortgage was given in fraud of their rights, or for the purpose of defrauding them.
“ 4. There is nothing here that disputed that this mortgage was given to secure to Mrs. Wright the payment of $700, money actually loaned Wright Brothers. It makes no difference about the $600 originally loaned the firm, if Mrs. Wright purchased her mother-in-law’s claim, or gave her personal note for it; and there is no evidence to dispute that fact. The note that she says she gave is valid and binding on her.
“5. The claim that this mortgage was given to secure is a lawful claim, and if Wright Brothers turned their stock of groceries over to Mrs. Wright, the plaintiff, in payment of this claim, they did nothing more than they had a perfect right to do, for a debtor may prefer any one or more creditors lawfully under the laws of this State.
“ 6. It is of no consequence what Mr. Wright, the husband of the plaintiff, may have said about this mortgage to third parties for the purpose of obtaining goods or for any other purpose; that would not affect or invalidate her claim.
“ 7. There is nothing to dispute the evidence here of the plaintiff’s possession of the goods, nor the fact that they were turned over to her in satisfaction of her claim as far as they would go towards paying it. I charge you, therefore, as a matter of law, she has a right to maintain this action, and the only thing left for you to consider is the damage she has sustained by the wrongful seizure of the goods by the defendants. As to her damage, you have heard .the evidence of the value of goods that spoiled while defendants had possession, and your verdict will be according to such value.”
The first request was sufficiently given by the court.
In view of the course taken by the court in the charge, the plaintiff’s second request should have been given. So much of the testimony as was referred to and particularly pointed out by the court in the charge on the part of the defendants fully warranted the counsel for the plaintiff in making this request, and made it the duty of the court to comply with the request.
The third request was properly refused. I do not think, as a matter of law, the conclusion reached in the request necessarily follows from the facts stated iherein.
The plaintiff’s fourth request should have been given, for the reasons stated why the second request should have been complied with. It further states the facts correctly upon which the conclusions of law were based, and they are undisputed as claimed.
The plaintiff’s fifth request on the undisputed facts should have been given. No witness denies that Wright Brothers had the money as claimed by the plaintiff, nor that the mortgage was given to secure it. O. O. Wright is the only witness who, in giving testimony, cavils upon that subject,'. and lie finally admits, upon his cross-examination, that the mortgage was given to secure the payment of the $700 to the plaintiff. Leppig v. Bretzel. 48 Mich. 321.
It is true the wife cannot he bound by the unauthorized statements of her husband regarding her separate property. Dawson v. Hall, 2 Mich. 390; Glover v. Alcott, 11 Id. 470; King v. Moore, 10 Id. 538; Benson v. Morgan, 50 Id. 77; Gavigan v. Scott, 51 Id. 373.
But it must be recollected in this case that the wife’s right to this property is derive! by contract with parties, one of whom is her husband. It is not the case of a wife claiming title or possession by virtue of an act of the Legislature. And it is this contract under which she claims that is alleged to be fraudulent; and whatever he did or said which would have a tendency to show the contract fraudulent would be proper testimony, if brought to the knowledge of the plaintiff; and the plaintiff’s sixth request should have had added to it, “if what he said was unknown to and unauthorized by her, and she took the security in good faith,” before it would have been proper for the court to have given it to the jury.
As the record now stands upon the testimony returned, the plaintiff’s seventh request was correctly refused.
The eighth assignment of error relates to a reference to the fact, by the court, that Cyrus Wright talked with Mr. Austin, the defendant’s salesman, after he sold the bill o£ goods to them, and before they were delivered, about the mortgage. There was no impropriety in this, as the fact stated by the court was undisputed upon the testimony.
The ninth assignment of error is that the court charged the jury, in substance, that a mortgage given for a precedent debt was not a bona fide incumbrance as against creditors. This was erroneous, and prejudicial to the plaintiff’s case. Jordan v. White, 38 Mich. 252.
“A debtor may always give a bona fide security for any claim against him.”
The court offered to direct a verdict for the defendants if their counsel desired. The court, turning to counsel near the close of his charge said:
“I never take a case from the jury unless counsel request it. I will direct a verdict for the defendants if counsel desire it.”
This was serious error. It was certainly a case for the jury upon the facts, and the court might as well have directed the vt rdict for the defendants as to say what he did. The effect upon the jury could not have been far different. The proposition ought not to have been made. Railroad Co. v. Judson, 84 Mich. 507; People v. Simpson, 48 Id. 478; Cronhite v. Dickerson, 51 Id. 179. This was the plaintiff’s tenth assignment of error.
All the questions raised have now been considered, and for the errors stated the judgment must be reversed, and a new trial granted.
Campbell, O. J., and Morse, J., concurred.
Champlin, J.
I do not think the court erred in not permitting the witness Ida E. Wright to introduce her own books of account or the bank-book for the purpose of corroborating her own testimony.
I concur in the result reached by the majority of the Court. | [
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Champlin, J.
Frank Kuhn was convicted in the recorder’s court of the city of Detroit on the twenty-first of February, 1882, of assault with intent to commit the crime of rape, and was sentenced to the State house of correction and reformatory, at Ionia. At the time of his conviction there was also an information pending against him in the same court for the crime of robbery.
He was committed to the prison at Ionia, and betwee n one •and two months later the prosecuting attorney of Wayne county, of his own motion, entered a nolle prosequi to such information for robbery.
About March 1, 1885, Kuhn escaped from prison, and fled to the Dominion of Canada.
In April, 1885, the prosecuting attorney filed a petition in the recorder’s court, setting up the facts as above stated, and alleging that said Frank Kuhn was a fugitive from justice, and asked leave on such sworn petition to file an information under section 9555 of Howell’s Statutes, which was granted, and such information was filed, containing an allegation that said Frank Kuhn was—
“A fugitive from the justice of the State of Michigan, and is sojourning in the jail of the county of Essex, in the Dominion of Canada, awaiting an examination on a complaint in this matter before an extradition commissioner .of said Dominion.”
Kuhn was extradited on the charge of robbery, for which the information was filed, and on being arraigned interposed a plea in bar, setting up his conviction and sentence above stated, and commitment, and also that the information filed against him for robbery was nolle prosequied, at which time-he was serving his time at the State house of correction upon the sentence given upon the conviction for assault with intent to commit a rape, and that he had not been examined upon any charge for any offense since the said nolle prosequi was-entered.
This plea was overruled and the defendant required to-plead to the information, which he refused to do, and thereupon the court ordered a plea of not guilty to be entered. He was tried and convicted. The court thereupon sentenced him to confinement in the State house of correction and reformatory, at Ionia, at hard labor, for the period of five-years.
The case is brought here by writ of error.
How. Stat. § 9555, reads as follows:
“No information shall be filed against any person for any offense, until such person shall have had a preliminary exam ination therefor as provided by law before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination: Provided,
however, that informations may be filed without such examination against fugitives from justice; and any fugitive from justice against whom an information shall be filed may be demanded by the Governor of this State of the executive authorities of any other state or territory, or of any foreign government, in the same manner, and the same proceedings may be had thereon, as provided by law in like cases of demand upon indictment filed.”
Two questions are raised upon the record:
1. Did the nolle prosequi entered operate as an acquittal of Kuhn upon the information filed against him upon the charge of robbery?
2. Was Kuhn at the time the information in this case was filed by leave of court a fugitive from justice within the meaning of the above section? • .
We think the first question must be answered in the negative. A nolle prosequi to an information will not operate as an acquittal where no jury has been impaneled in the case. Upon this the authorities are agreed. 1 Whart. Crim. Law, § 513, and cases in notes; State v. Lopez, 19 Mo. 255, 456; State v. Rust, 31 Kan. 509 (3 Pac. Rep. 428); Com. v. Wheeler, 2 Mass, 172; 1 Bish. Crim. Law, §§ 1014-1016.
The second question must be answered in the affirmative. “A person who commits a crime within a state, and withdraws himself from such jurisdiction without waiting to abide the consequences of such act, must be regarded as a fugitive from the justice of the state whose laws he has infringed.” In re Voorhees, 32 N. J. Law, 141.
When Kuhn escaped from the prison at Ionia, and fled to Canada, he was a fugitive from the justice of this State. He had committed a crime for which he had not been tried; and it matters not that he had escaped from prison before his sentence had expired, and became a fugitive; he retained his character as such, and his escape formed no obstacle to his extradition and trial for the crime of robbery.
It is true that he committed another offense by escaping from prison, but a multiplication of crimes for which he may be hereafter punished cannot operate to shield him from being brought to the jurisdiction of the State to stand trial for a crime committed before he escaped from prison and fled from justice. It follows that under the statute no previous examination before a magistrate was required.
There was no error in the record, and the judgment is affirmed.
Sherwood and Morse, JJ„ concurred.
Campbell, O. J., did not sit. | [
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Champlin, J.
Eugene Kiely commenced suit in assumpsit against William Morrison, and garnished the defendant.
Interrogatories were filed, and a written disclosure made, from which it appeared that whatever indebtedness had existed between defendant and Morrison was under a written contract to do a job of logging for defendant, in which contract this clause occurs:
“The second party reserves the right of knowing that labor bills are paid before paying any final amount due first party, in order to protect himself from labor liens.”
It further appeared from the disclosure that Morrison failed to complete the job, and that he owed for labor on the logs $798.13, and that defendant owed him upon the contract, irrespective of damages for non-performance, $576.25.
The disclosure further shows that before the writ of garnishment was served it was agreed between defendant and Morrison that defendant should pay the labor debts to the amount of $798.13. The defendant in his disclosure denied owing Morrison anything whatever at the time the writ was served upon him.
In the principal suit judgment was entered against Morrison by default. A demand was filed with the clerk for a trial of the garnishee cause, and it thereafter stood for trial in the manner provided by the garnishee act.
The act contemplates a speedy determination of the garnishee’s liability, and any considerable delay by plaintiff, not consented to or acquiesced in by the garnishee, will be cause for a dismissal of the proceedings against him. Blake v. Hubbard, 45 Mich. 1.
In this cause the garnishee suit should have been tried at the May term of the court, unless continued by its order, which was not done. It was noticed by the plaintiff for trial at the two succeeding terms, and notice countermanded. In consequence of the countermand, defendant’s attorney applied for and obtained an attorney fee as costs of the continuance. This was a waiver of the delay. If he did not acquiesce, he should have moved to dismiss at that time, instead of waiting until after a jury should have been impaneled to try the cause. Webber v. Bolte, 51 Mich. 113.
Upon the trial the disclosure was introduced in evidence by the plaintiff, and he also introduced as a witness the principal defendant, William Morrison, who testified as follows:
“ Q. Did you make any bargain with him?
“A. Not particularly.
“ Q. What do you mean?
“ A. He understood he had to pay the men. The bargain was all made.”
This testimony substantiated that given by the defendant, to the effect that he made a bargain with Morrison to pay the labor debts before the service of the writ. To enable him to carry out this agreement it was necessary that defendant should be furnished with the time each man worked, and it was arranged that such time should be brought to the office of Mr. Woodruff. Plaintiff’s brother was foreman for Morrison, and kept the time of the men. He came to the place designated, but required that he should be paid before he produced the time of the men. This was done, and then the writ of garnishment was served, after which defendant paid laborers, whose demands would have constituted liens upon his logs, to the amount above stated.
The case presented by this record shows that the plaintiff has no cause of action against the garnishee. The agreement to pay the men for labor claims was made before the writ of garnishment was served. The fact that these labor claims might under the statute become liens upon the logs of defendant, if not paid, and proceedings were instituted to enforce such liens, constituted a good and sufficient consideration for the promise. It was not necessary that the time should be handed in or payment actually made before the service of the writ.
But if no such agreement had been made, the plaintiff must fail in this action. The contract was executory, and had not been completed. Nothing was due upon it at the time the writ issued. The defendant had a right to retain 25 cents per 1,000 feet until the logs were put afloat, and he had a right to retain the final payment until the labor claims were paid. And a fair construction of the contract would authorize him to apply the final amount due to the payment of such claims for labor as might become liens upon his logs.
The case of Webber v. Bolte, above cited, shows that a suit in garnishment will not lie in a case of a contract like this.
The judgment must be reversed, with costs of both courts. As no recovery can be had in this case, no new trial will be ordered.
The other Justices concurred. | [
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] |
Sherwood, J.
The bill in this case is filed to stay proceedings in an action of ejectment.
The complainants aver in their bill that one Emile Carriere, on the fifth day of February, 1S85, owned a village lot in the unincorporated village of Iron Mountain, in the' county of Menominee, and on that day he conveyed the lot to the defendant. The consideration expressed in the deed was $1,050, only $100 of which was paid when the deed was made, and the rest was secured by mortgage.
Spencer went into possession of the property, and commenced the construction of a large building thereon, and in so doing incurred a large amount of indebtedness, without completing the structure.
From February 6, 1885, to August of that year, the Wisconsin Land & Lumber Company, by its agent, Charles C. Butler, at Iron Mountain, sold to the said Spencer lumber and materials, to the amount of $1,000, which were used in constructing the building. On the second day of June, 1885, Spencer conveyed the premises to Butler.
On the tenth day of August following, the lumber company learned for the first time what had been done by Butler; and, he having used the materials of the company in the building, as well as Spencer, it sent one of its members, by the name of Ebert, to look after the matter. As soon as he ascertained the situation, he at once demanded pay for the lumber obtained of the company of both Spencer and Bader. Spencer then represented himself as being 21 years of age. Both failed to pay the indebtedness to the company; but Butler, with the consent of Spencer, on that day conveyed, for the expressed consideration of $1,520, to Ebert the premises in question. The deed was taken by him for the use and benefit of the lumber company, and was held by him as trustee for the company.
The bill charges as a fact that Spencer was 21 years of age at the time of these several transactions.
The bill further avers that, during the time Butler held the title, he expended ón the building $186; that on the twenty-seventh day of. February, 1886, the said Ebert and wife conveyed the property to the complainants in this case, by quitclaim deed, for the sum of $913, which was paid, and the complainants at once went into possession, and claim that they are the owners of the fee; that since taking possession they have expended, in completing the construction of the building, the sum of $1,552.98, and that their time and services, in and about completing the same, are worth $200 more, and that it will now cost $1,500 to entirely complete the building.
The bill then avers the commencement of the ejectment ■suit by Spencer, the defendant, in the Menominee circuit court, and the pendency of the same, and further avers that Spencer, during all the time the complainants have been in possession of the property, has resided in Iron Mountain, and has seen all that complainants did from time to time upon the property, and never made any objection thereto, or any claim to the property; that the defendant, before the commencement of the ejectment suit, neither restored nor offered to restore the consideration paid by complainants to Ebert; and prays for a perpetual injunction against the claims and ■suit of the defendant.
Defendant’s answer admits the conveyances made, except that to Ebert, as stated in the bill, includ ng the mortgage, and that he never paid anything upon the latter, and denies that the lumber company had no_ knowledge of what Butler did until he deeded the property to it.
Defendant further says and charges that Butler fraudulently obtained his deed of the property from defendant, and then sets out the facts constituting what he claims to be the fraud, and insists that the deed of defendant to Butler was so procured with the knowledge and consent of the lumber company; that his deed to Butler was executed wholly without consideration.
He denies that he was 21 years old when he made his deed to Butler, and avers that he had not then reached that age, ,and did not until the month of December, after he made the deed to Butler; that he knows nothing about the deed to Ebert; denies that complainants have expended $1,552,98^ or any sum, in completing the building, and, if they did, they expended the same with full knowledge of defendant’s rights, as here claimed.
Proofs were taken in the case before Judge Grant, who, after hearing, made a decree enjoining the pending or any other suit at law for the recovery of the premises in question; and it provides further that,—
“ Upon the payment by the said defendant to the complainants of the sum of §2,692.90, with interest from the date of this decree, and also the costs of complainants in this cause to be taxed, within 80 days after service of a certified copy of this decree upon the said defendant, or his solicitors in this cause, or either of them, said complainants execute a deed of release and quitclaim to said defendant of said premises, and that in default of such payment said complainants’ title to said premises be in all things ratified and confirmed, and that the defendant be forever after barred of all right, title, or interest in and to said premises, or any part thereof.”
On a review of the record in this case, we are entirely satisfied that the decree made does justice between these parties, and is quite as favorable to the appellant as the circumstances, of the case shown by the record will warrant.
We have no question but that, under the facts as they appear in the testimony, the complainants must be held liable to all the equities existing between the lumber company and Spencer; and that in all that Butler did he must be held as representing the lumber company, so far as the sales of its property were concerned.
We do not think a review of the testimony here necessary in the case. The defendant claims the property in question is worth from §6,500 to $7,000. If his theory of the case is correct, he would be equitably liable for all the court has directed him to pay, as a condition to his retaking title to the property. The equitable rights of the complainants not only entitled them to the value of the improvements which they put upon the property, but also to the value of those placed upon it by their grantors, if the defendant takes title freed from the mortgage he gave.
We have no doubt but that the case presents -questions entirely proper for the consideration of a court of equity, and do not think the case necessarily involves the doctrine of estoppel.
The fact of Spencer’s minority when he made the deed to Butler, if such' was the fact, and Butler made his to the lumber company, must be taken into consideration, as it undoubtedly was by the learned circuit judge in making his decree. If the defendant was an infant at the time he made his deed, we do not think the decree does him injustice.
As a general rule, at least, the doctrine of estoppel should not be predicated upon the acts and conduct of an infant. Corey v. Burton, 32 Mich. 32.
The decree must be affirmed, with costs.
The other Justices concurred. | [
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Sherwood, J.
This action was brought in justice’s court to recover for printing done by plaintiff for the defendant.
The plaintiff’s declaration was on the common counts, but sought mainly to recover for goods manufactured, sold, and delivered, and on an account stated.'
The defendant pleaded the general issue, with notice of recoupment. The plaintiff recovered a judgment before the justice for $169.62. On the appeal to the circuit, a trial was had by jury, and the plaintiff recovered a judgment for $174.50, and the case is now before us for review on the proceedings had in the circuit.
The plaintiff’s bill of particulars contains eight items.
The balance claimed on the account, with interest, was $198.50.
The account contained but two credit items; one for $25, and the other for $30. There was proof tending to show the work performed, and the value thereof; also tending to show an account stated, although the jury did not, it would seem, accept the proofs as conclusive of the account stated.
The testimony on the part of the defendant tended to show the printing claimed for was done in a defective manner. The defects in the work claimed by the defendant consisted in that the plaintiff did not give the defendant copies ordered, that words were misspelled, and that other errors were allowed to go into the printed matter ordered by defendant, by reason of which he was damage!, but to what extent or in what amount does not appear in the record.
No special contract was testified to under which the work was to be done.
It is claimed by the plaintiff, in answer to the alleged imperfection of the work, that, if such errors and mistakes did occur in the work done for the defendant, the fault was not that of the plaintiff, but that they occurred by reason of the negligence of the defendant in correcting the proofs furnished, which he was requested to do, and did do, and there was some testimony in the ease tending to support this claim.
Twenty-one errors are assigned upon the rulings of the court in taking testimony.
The first question objected to is that relating to interest upon the account.
If what the plaintiff claimed was true, that there was an account stated, then the question was proper, and the plaintiff had a-right to the evidence in the case upon his theory, • and to go to the jury with it, and was correctly allowed to do so.
It was not improper for the plaintiff to show to the jury the time charged for, and how the plaintiff made up his items in charging parties for whom he did work; and this was the character of the testimony objected to and admitted in the errors assigned in Nos. 2, 3, 4, 5, 6, 7, 8, 9, and 10 and they need no further discussion.
The plaintiff was permitted to make proof of the custom of his office in correcting proof, against the objection of defendant’s counsel. The plaintiff gave testimony tending to show that the defendant knew the custom of the office in regard to the matter queried after. We see nothing objectionable in this, and the testimony was properly admitted, especially as the defendant had no express contract for his work at plaintiff’s office, and for which the plaintiff sues; and this will dispose of the defendant’s .eleventh, twelfth, and thirteenth assignments of error.
Irving Carrier, one of defendant’s witnesses, testified that he was a job printer, and was familiar with the kind of work sued for, and, the printed specifications being shown to him, said they would be worth less than the charge made by the plaintiff.
On cross-examination was asked:
“ If there were exceptional changes made, such changes as would necessitate what would be equivalent to resetting a. considerable portion of the type, would you make any charge lor that in connection with your business?”
Objected to by defendant’s counsel, on the ground there was no such evidence in the case. This question was not objectionable on that ground. There was evidence in the case to that effect, given by plaintiff’s witness, Howard, who was foreman in plaintiff’s job office. He said, speaking of the changes that were made in the proofs by Mr. Myers:
“ Sometimes the proof would be returned to us interlined, and words and sentences interspersed throughout the proof, and in a general way cut up very badly, which occasioned a great deal of extra work; in fact, it was equivalent to resetting the work in most cases, and oftentimes we could not make out the technical terms, and it would necessitate our going up to Mr. Myers to see him personally.”
We think the cross-examination was clearly warranted.
Allen N. Bours was examined as a witness for the defendant, and testified he had examined some of the work done for the defendant by the plaintiff, and pointed out some defects therein, and gave testimony as to the character of Mr. Myers’ manuscript.
On his cross-examination he testified that he had done a good deal of work for the defendant at different times; writing specifications mostly, and that he was familiar with that. It also appeared the witness had had difficulty with the defendant, and had a suit about it, and that this class of work was in controversy; and plaintiff proposed to show, upon the cross-examination, that witness made complaint of the enormous amount of work he had to do because of Mr. Myers’imperfect manuscript, and that the witness’ testimony as to Myers’ manuscript was different then from what it was upon this trial. The testimony was received by the court, against the objection of defendant’s counsel that it was immaterial. The exceptions contained in the defendant’s sixteenth, seventeenth, eighteenth, and nineteenth assignments of error relate to the same subject. This testimony was impeaching in its tendency, and properly received.
The alleged refusal to allow witness G. W. Myers to answer tbe question referred to in the twentieth assignment of error is a mistake. The witness made his answer to the question.
The defendant was not prejudiced by the refusal of the court to allow an answer to be given to the question referred to in the twenty-first assignment of error.
We have carefully examined those portions of the charge as given and excepted to, and the refusal to charge the requests made, — these constitute the remaining assignments ■of error, except the thirty-second, — and find no error in the action of the court.
The last assignment is an exception to the ruling of the circuit court in refusing to grant a new trial. We find nothing in the record which would permit us to interfere with that ruling.
The judgment must be affirmed.
The other Justices concurred. | [
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Montgomery, J.
The plaintiff sues as administratrix of the estate of James Enright. The action is based upon a contract of insurance made between the defendant company and the Toledo, Ann Arbor & North Michigan Railway Company, and upon a certificate issued as supplemental to the contract directly to Enright. The contract between the two companies is in the form of an open policy of insurance, by the terms of which the insurance company insured the railroad company from month to month,—
“Covering such of its officers and employés as shall be entered in a schedule, and shall duly pay the premiums therein provided for their respective risks, against the effects of injury to the body caused by external, violent, and accidental means, within the meaning of this policy, its agreements and conditions printed or written thereon or on the back hereof, which cannot be waived or altered by any agent, as follows:
“ First. It is agreed, if such injuries shall, within three months from the happening thereof, be the direct cause of the death of any such officer or employé, that this company will, within sixty days after receipt of satisfactory proofs of death and claim, pay the principal sum set opposite the name of such person in said schedule to the assured for the benefit of whom it may concern.”
A further provision of the policy reads:
“It is agreed that all just claims accruing under the terms of this policy, whether for disability or death, shall be payable to said assured, in trust for whom it may concern, to wit, in case of disability, for the benefit of the injured person; or, in case of death, for the benefit of the heirs or assigns of the deceased.”
The evidence shows that it was the custom of the railway company to require its employés to contribute from their earnings monthly sufficient to cover the risk to their several lives, and that on their making payment the defendant company issued certificates to them, which certificate to Mr. Enright reads as follows:
“Certiricate or Accident Insurance.
“ Certificate No. 1,262. Dated April 25, 1889. Monthly premium, $2.
“ Principal sum .in case of death, $1,500. Weekly indemnity, not exceeding 52 weeks, $7.50.
“Special provisions: In case of the loss of two hands or of two feet, or one hand and one foot, the insured will be paid the full principal sum as given above; or for the .loss of one hand or one foot, one-third of said principal sum.
“The Standard Life and Accident Insurance Company of Detroit, Michigan, hereby certifies that Mr. James Enright is insured against the effects of accidental injury, under the conditions and agreements of its open policy, No. B 1,001, issued to the Toledo, Ann Arbor & North Michigan Railway of Toledo, Ohio, hereinafter called the ‘ assured, for such sum in case of death, and such amount of weekly indemnity in case of disabling injury, as shall be provided in the schedule referred to in said policy: Provided, however, that if he shall fail to pay any monthly premium when due, or shall quit the service of the assured, said insurance shall immediately cease, and this certificate shall become null and void.
“D. M. Perry, President.
“Stewart Marks, Secretary."
It was also in evidence that the employé was required to make application to the insurance company on entering the employ of the railway company.
The defendant in the present case, under the plea of the general issue, gave notice as follows:
“That, if the defendant ever executed and delivered the policy declared on in this declaration, it was upon a written application of the said James E. Enright, which application is dated April 2, 1889, wherein and whereby the said James E. Enright agreed with said defendant that such insurance should be under the terms, and subject to all the conditions and limitations, of open policy number B 1,001, issued by said defendant to the Toledo, Ann Arbor and North Michigan Railway Co., and that the insurance in case of death should be payable to Josephine Enright, his wife."
A trial was had, and verdict for the plaintiff for $1,500.
The sole question raised on this appeal is whether the plaintiff was entitled to recover this insurance, suing in her character as administratrix. The learned circuit judge ruled that, as the defendant had by its notice stated that the application by Enright provided for payment to the wife, she might waive her right to the fund in favor of the estate, and that, as the full merits of the case had been tried, the defendant could not be injured by a recovery in the present case. We think this ruling should be sustained. It was held in Peet v. Knights of Maccabees, 83 Mich. 92, that, in a case where an administrator sues as such, recovery should be permitted if he is shown to be the only person entitled to participate in the fund, even though the action ought to have been brought by him in his individual capacity.
In this case the three instruments may well be considered together. It is true that under the terms of the original policy issued to the railway company the action, if any, would properly be brought in the name of the company, and the company would become trustee for the insured; but the certificate does not, in terms, provide that such payment shall be made to the company. On the contrary, it is provided that, in case of loss of two hands or two feet, or one hand and, one foot, the insured will be paid the full principal sum stated in the certificate, and the insured referred to in that clause is evidently Mr. Enright. This is followed by a certificate that Mr. James Enright is insured against the effects of accidental injury. It is true that it contains no statement as to the person to whom payment shall be made in case of death, but the defendant's plea states that by the application, which would become a part of the contract, James E. Enright agreed with the insurance company that such insurance should be subject to all the conditions and limitations of open policy No. B 1,001, and that the insurance in case of death should be payable to Josephine Enright, his wife. While it is true that this plea, as well as the certificate, states that the insurance is subject to the conditions and limitations of the open policy, the plea cannot be construed as so far contradictory of the terms contained within itself as to mean that the insurance which is there asserted to have been made payable under the contract to Josephine Enright was in fact payable either to the heirs of the insured or to the railway company for his use. Until there was a departure from the lines of the open policy, or a modification of such terms, the insurance was under its terms payable to the railway company. It is not clear, however, that this was intended in cases where certificates were subsequently issued directly to the beneficiary, as was done in this case, particularly as the certificate in terms provided for payment to Enright in case of injury not resulting in death; but, if it be assumed that the death loss would still be payable to the railway company for the heirs of Enright, if the terms of the certificate and the open policy alone are considered, yet the agreement embodied in the application is conclusive that the terms of the open policy were in that respect departed from.
We think the circuit judge was justified in treating the contract as, one shown to have been made between the insurance company and the deceased, and as one providing that in case of death the loss should become payable to_ his wife, Josephine Enright. This conclusion being reached, the case is ruled by Peet v. Knights of Maccabees, 88 Mich. 92.
While a more proper course may have been to have permitted an amendment to the declaration, still, under the authority of section 7636, How. Stat., the cause may be treated as though the amendment had been made before the judgment. Smith v. Pinney, 86 Mich. 484. The judgment will be affirmed, with costs.
The other Justices concurred. | [
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Per Curiam.
This is an application for the writ of mandamus to compel the register of deeds to record a plat without- the approval' of the board, or,- if the approval of the board be necessary, to compel such approval.
The land platted lies between lines which would constitute the southerly line of Kirby street and the north erly line of Frederick street were said streets extended. The land is platted into 20 lots, 10 of which front on Mitchell avenue, and 10 on McDougall avenue, with' an alley of the required width extending through the center of the land platted, which alley would open into Kirby and Frederick streets if they were extended. Petitioner is also the owner of the land adjoining, and which would extend to the center line of these streets if extended. The board refuse to approve the plat without a dedication by him to the public use of the said pieces of land for these streets. The board claim this right by virtue of section 304 of the city charter (Act No. 268, § 4; Local Acts of 1883), which reads as follows:
“The board of public works shall prepare, as soon as may be, a general plan of laying out into streets and alleys all-such portions of the territory now or hereafter lying within the corporate limits of the city as shall not already be laid out, approved, and platted at the time of the taking effect of this act, or without the city limits, and within two miles thereof, when directed by the common council, and may enter upon land for that purpose. If approved, they shall indorse their approval on all plats of such streets and alleys, and no private plan shall be allowed or permitted which does not conform thereto, and no plat shall hereafter be recorded, or be of any validity, unless before such record the approval of said board shall be duly indorsed thereon. Before accepting and approving any such plat, the said board of public works shall require that there be filed in their office a certificate from the proper authorities, showing that all back taxes on property included in said plat shall have been paid in full. Said board shall not have power to change such plats when once approved and adopted by them, unless authorized so to do by a resolution of the council, passed by a three-fourths vote of the members elect: Provided, that all streets and alleys shall be laid out so as to conform as nearly as may be to the lines of streets and alleys now opened."
This section does not confer upon the board the power ■to compel a land-owner to dedicate his land to the public use, nor to prevent his platting it, so long as the proposed plat does not interfere with the general plan • for .streets. The power conferred goes no further than to prevent land-owners from laying out streets contrary to the general plan. If the city desires private property .for the public use it must proceed to condemn it and pay for it.
This plat does not interfere with the general plan established for streets. Petitioner has the right to fix the size of his lots, and to locate the alley. Campau, v. Board of Public Works 86 Mich. 372.
The writ must issue, directing the approval and record •of the plat.
McGrath, J., did not sit.
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] |
Morse, C. J.
This is a suit in trover commenced in 1879 to recover for the alleged conversion of certain goods, levied upon and seized by the defendant as sheriff of St. Joseph county, at the suit of creditors of one Gilbert Dickerson. The case has been once before in this Court (Curtis v. Wilcox, 49 Mich. 425), and has been tried several times in the circuit. At the last trial the verdict of the jury was in favor of plaintiffs for $3,844.66, but, by an order of the court and with the consent of plaintiffs, the sum of $1,370.35 was remitted from the same, and judgment entered for $2,474.31.
Much of the argument and brief of defendant’s counsel is directed against the refusal of the court below to give the defendant’s fifth request, as follows:
“ The jury, in determining this case, will take into consideration, as bearing upon the question of fraud, the manner in which the business was started at Three Rivers, and carried on from that time up to the time the mortgage was executed, who funished the means and stock to start with, and who looked after the business and was interested in it afterwards; and if .they find from the evidence that the plaintiffs were the owners of or interested in said business, and assisted in carrying it on, or that they were partners in said business, and it was carried on for them or in their interest by said Dickerson, then said mortgage would be fraudulent and void, and your verdict will be for defendant.”
The evidence showed that Dickerson’s family. resided on a farm in the township of Plainfield, Kent county, Mich. In March, 1877, Dickerson, in company with one Emma C. Erain, commenced business at Three Rivers in this State, under the firm name of G. Dickerson & Go., with a small stock of tinware and peddlers’ supplies. The plaintiffs were in business at Grand Rapids, Mich., under the firm name of J. A. Curtis & Go. They furnished Mrs. Erain with her share of the capital stock in the business at Three Rivers, she giving them security therefor by mortgage upon laird. They also furnished some goods on credit to Dickerson to put in the firm, and Dickerson had some horses and wagons of his own. These horses and wagons were used in peddling goods throughout the country for the firm of G. Dickerson & Co. Mrs. Erain subsequently sold out to Dickerson, who thereafter conducted the business in his own name. He dealt largely with J. A. Curtis & Co., and was also indebted to them more or less. At one time, in 1878, plaintiffs took a $1,200 mortgage upon his stock from Dickerson, which mortgage was never put upon record or made public in any way. On the 18th of September, 1878, Dickerson executed a mortgage to plaintiffs, dated September 14, for $2,861.27, a copy of which was filed with the township clerk of Plainfield, September 23, 1878. October 11, 1878, plaintiffs took possession of the stock of goods at Three Rivers, under this mortgage, and also other property found at Grand Rapids and other places. Only the goods in the store at Three Rivers are now involved in this suit. The defendant levied upon this stock while in the possession of plaintiffs, and plaintiffs brought trover.
The theory of defendant, upon which this fifth request was based, was that the plaintiffs were interested in the business at Three Rivers; that Dickerson in fact was but the tool and agent of plaintiffs; and that the mortgage was of no more force and effect against the creditors of the business than would have been a mortgage from Dickerson to Dickerson or from plaintiffs to plaintiffs upon the same property. To support this theory the defendant relied upon various facts and circumstances in the conduct of the business which it is claimed tended to show that the business was in fact that of the plaintiffs, and not of Dickerson, or that plaintiffs were interested in the buéiness as partners. We think there was testimony upon which defendant was entitled to go to the jury on this theory, and that this fifth request should have been given in substance, as we do not ■ find that the court in his instructions to the jury gave the defendant the bene-, fit of this contention.
The mortgage provided that Dickerson might have the privilege of selling the goods “in the ordinary and usual way heretofore pursued”-by him, but not in an unusual manner or quantity. On the day the mortgage was given plaintiffs wrote a letter addressed to George S. Curtis, of Plainfield, giving him notice of this mortgage, and of this provision in it, and saying:
“ But by this writing I grant him the privilege of selling to you in such quantities as you may choose to buy, and release all claims on all goods purchased by you.”
George S. Curtis is a brother of James A. Curtis, one of the plaintiffs. This letter was delivered by James A. ■Curtis to Dickerson. It is contended by defendant that this letter was a part of the mortgage, and should have been filed with it. George S. Curtis received about $5,000 worth of goods from Dickerson. Plaintiffs claim that George S. Curtis did not receive any goods under this letter, and James A. Curtis testifies that the letter related only to a balance of $300 going to George S. Curtis from Dickerson, and that it was not meant to .authorize a sale of any more than that amount. It is argued that this letter wrought a material change in the contract set out in the mortgage, and the copy filed gave false information. But it is not shown by the record that the existence of this letter was of any detriment to the creditors who are attacking the mortgage in this suit. Jt was held, when the' case was here before, that the mortgage did not cover any of the goods that were purchased by Dickerson, and, after their arrival at Three Rivers, shipped from the station there to ■ Grand Rapids ■or other points without ever being brought into the store or business at Three Rivers. The record certainly .shows that a portion of the goods received of Dickerson by George S. Curtis were shipped in the bulk from the station at Three Rivers as they came from the wholesale •dealers; and it does not show that any of them were ■ever in the store or business at Three Rivers, and therefore covered by plaintiffs’ mortgage. What amount of goods, if any, were shipped to George S. Curtis after the mortgage was given does not appear; but some of them were sent him before the mortgage was executed, as shown by testimony introduced by the defendant. The defendant was not entitled, as contended by him, to have the value of the goods sent to George S. Curtis deducted from the amount of plaintiffs’ mortgage. Indeed, the record shows that the sheriff obtained a large amount of these goods under his attachment levies, and the plaint iffs were not permitted in this suit to dispute his right-to them.
It is further contended that the mortgage was void, as against the creditors represented by defendant in this suit, because of the existence of this letter, releasing-from the mortgage what property George S. Curtis might purchase, and the fact that the letter was not filed with the mortgage. But it was not shown, as before stated, that any of the goods covered by this mortgage were-ever sold to or came into the possession of George S. Curtis; and, if not, then the mortgage was never operated upon by this letter, and such letter would have had no effect as a part of it. There is certainly no showing in the record that the existence of this letter had any bearing upon the mortgaged property to the prejudice of the attaching creditors, nor that they were in any manner misled because of its not being filed with the mortgage or as a part of it.
It was shown upon the trial that before Johnson & Wheeler, who were attaching creditors, sold any goods to-Dickerson, they wrote to plaintiffs inquiring as to the “standing, habits, and means of G. Dickerson, of Three-Rivers.” This letter of inquiry was dated July 9, 1878, and upon reference by Dickerson to plaintiffs. Plaintiffs-replied July 10, 1878, as follows:
“ Gentlemen: Yours of the 9th inst., making inquiry as-to the habits and means of G. Dickerson, of Three Rivers,, is rec'd. In answer, would say I consider Mr. Dickerson an enterprising man and a square dealer. He used to reside here, and conduct a good livery business. He has been engaged in the peddling business since the spring of 1877, at Three Rivers. He is considered a man of some means. E. P. & S. L. Fuller, bankers of this city, with whom Mr. Dickerson has done business, says 'he is reliable and prompt/” '
Delos Phillips, of Kalamazoo, another of the attach ing creditors, wrote to James A. Curtis, September 13, 1878, asking for the “financial standing of G-. Dickerson, of' Three Rivers, in the tin business, to the amount of $350, payable in 60 or 90 days, and in your opinion would his paper be met promptly?" Mr. Phillips testified that Curtis replied that he considered Dickerson perfectly responsible; that he had just shipped him a car-load of' rags worth $449, and that he would ship him 10 carloads, if he wished them, that he regarded him as a man entitled to credit, and perfectly responsible, to the amount of $5,000. Phillips further testified that he-acted upon this recommend, and gave Dickerson credit for $375.
At the time Curtis must have answered this inquiry he-had drawn the mortgage to plaintiffs, which was written on the 14th of September, 1878, but not executed until-the 18th, and Dickerson was owing plaintiffs, as Curtis-testifies, $3,700. When plaintiffs answered Johnson & Wheeler’s inquiry, Dickerson was also owing them over $2,400, and they knew that his residence was at Plain-field, and not at Three Rivers, and they held an unrecorded mortgage of $1,200 upon the goods at Three Rivers. Wheeler testified that, if his firm had known of this indebtedness to plaintiffs, they would not have sold Dickerson goods on credit, and that they relied on-plaintiffs* letter in giving such credit.
The court was requested to charge the jury in this-regard as follows:
“If the jury find that the plaintiffs were applied to-by any of the creditors represented here for the information concerning the character or responsibility of Dickerson, and, knowing or having good reason to believe that such creditors believed Dickerson resided in Three-Rivers, and that they contemplated selling him goods,, wrote such creditors, without disclosing to them his- .actual residence or the existence of their mortgage, if they then had been furnished one, and if, in reliance on such information by plaintiffs, the creditors sold Dickerson goods, then, as to such creditors, the plaintiffs are estopped from urging their mortgage.
“If the jury find that the plaintiffs induced Johnson & Wheeler to believe that Dickerson resided at Three Rivers, and if under that belief they trusted Dickerson in ignorance of the mortgage, then plaintiffs are estopped from setting up a mortgage not filed at Three Rivers, and the mortgage filed at Three Rivers is not notice until filed.”
The court was further requested to instruct the jury •to the effect that the plaintiffs were estopped from contesting the claims of Johnson & Wheeler and Delos Phillips.
These requests were none of them, as worded, ..entirely proper, as they left out the element of bad faith in plaintiffs; but they raised the question of estoppel, and brought to the attention of the court the fact, which is •evident, that this was an important issue in the case. The jury should have been instructed that if plaintiffs ' concealed the indebtedness of Dickerson to them, and his place of residence, for the purpose of inducing Johnson & Wheeler and Phillips to trust him, they were estopped from enforcing their mortgage as against them. If Phillips’ testimony was believed by the jury, there was a ■clear estoppel, as a matter of law, in his case. James A. Curtis testifies that he wrote the letter to Phillips on ■the 14th of September. At that time he well knew, as shown by his testimony, that Dickerson was insolvent, and plaintiffs were then preparing to take possession of .all his assets under a mortgage drawn up on that day. The court, in reference to these letters, instructed the jury, in substance, that if the representations therein contained were intentionally and falsely made, for the purpose of aiding Dickerson in establishing a fictitious credit, they could give such weight to the letters as they deemed they merited, bearing upon the question whether it was a good or false mortgage. This did not go far-enough. If these representations were falsely made to-induce the giving of credit to Dickerson, this mortgage-could not be interposed to prevent the collection of the debts owing to Johnson & Wheeler and Phillips, and contracted in reliance upon such false representations.. The same rule would hold good as to the concealments. If the concealment of the debt to. plaintiffs and of Dickerson’s place of residence was purposely made to-induce credit, then such credit, given in reliance upon the letters, is entitled to preference, as against plaintiffs’mortgage.
Mr. Wheeler should have been permitted to state as to-where he understood Dickerson’s residence to be from the letter of plaintiffs in answer to the inquiry of his. firm. The evidence shows that Johnson & Wheeler sold" goods to Dickerson on the 23d and 28th days of September, 1878. At that time a copy of the mortgage was on. file at Plainfield, but not at Three Rivers, where Johnson & Wheeler would be likely to search for mortgages if they understood that Dickerson lived at Three Rivers.
The court also erred in instructing the jury that they might consider the fact that a copy of the mortgage was-filed at Three Rivers as an evidence of good faith on the-part of plaintiffs, as there was no competent evidence to show when it was filed there. James A. Curtis testified, that he left a copy of the mortgage with the township clerk of Lockport (in which township the village of Three Rivers is situated), and paid him his fees, bethinks, on the 2d of October, 1878. This was not the best evidence of the filing, and could not be considered until the copy was produced with the filing upon it, or some showing made why it could not be produced.
We find no other errors in the proceedings.
The judgment is reversed, and a new trial granted, with. ■costs of this Court to defendant. °
The other Justices concurred. | [
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] |
Morse, C. J.
Application for mandamus.
The relator is a resident freeholder and tax-payer of the city of Detroit. May 6, 1891, the common council of the city of Detroit passed the following resolution:
“Resolved, that the board of public works be, and they are hereby, directed to advertise five days for proposals for the repaving of the following streets, to wit: Gratiot avenue, from Eandolph street to McDougall avenue; Grand Eiver avenue, from Cass to railroad crossing; Jefferson avenue, from Woodward avenue to Second street; Griswold street, from Jefferson avenue to Grand Eiver avenue; Third street, from Fort to High street; Forest avenue, from Cass to Third street; Champlain street, from Eandolph to Eivard street, — with Bucyrus and Canton brick, and submit the bids to the common council before entering into any contracts.”
Hnder this resolution the board of public works, on May 15, 1891, prepared and approved specifications for brick paving in the city of Detroit, which specifications were adopted by the common council. June 10, 1891, the board duly advertised for proposals for paving streets in said city, among them the portion of Grand Eiver avenue described in the above resolution. June 16, 1891, the bids were opened. Eelator was the lowest bidder with a kind of brick which stood the test required. His bid was accepted by the board of public works, and a contract entered into with him by said board for doing the work. This contract was transmitted to the common council for approval, but, on motion being made to approve the contract, it was lost on a tie vote, and a motion to reconsider such vote was lost by a still larger vote in the negative.
The relator subsequently, by letter addressed to the board of public works, offered to proceed with the work, and requested the appointment of an inspector. To this letter the board replied, calling attention to the provisions of the charter of the city of Detroit (section 8, chap. 7, Act No. 488, Local Acts of 1887), requiring that this contract be submitted to the common council for its approval before it could be of any force or effect. Nothing has since been done by either of the respondents in relation to the contract or the paving of this portion of Grand Eiver avenue. It is admitted that the form of the contract was approved by the assistant city counselor, and there is no fault found with the bonds presented by relator to the board of public works, but they have not been approved or acted upon by the common council.
The relator asks for the writ of mandamus requiring the board of public works to appoint an inspector, and to take such other measures as will enable the relator to proceed with the work under their general direction according to his contract, and, if necessary, that the common council be directed to confirm and approve his contract.
The board of public works exists under, and its powers are defined by, an act of the Legislature of this State, entitled “An act to establish a board of public works in and for the city of Detroit,” approved April 29, 1873 (3 Laws of 1873, p. 175). Section 12 of this act provides:
“When any public improvement (except the opening of public streets) or public work is proposed, the common council shall, before proceeding with the same, refer the matter to said board of public works, and the board last named shall forthwith proceed to examine the same, and shall, as soon as practicable, report thereon to the common council, giving detailed estimates of the costs of such works or improvements (if any cost there will be), and shall make such recommendation as said board of public works may deem expedient.”
Section 18 of the same act provides:
“The paving and grading of all streets, alleys, or public places, ordered by the common council, shall be done under the supervision of the board of public works, and upon contracts and under specifications to be prepared by such board, and approved by the common council; and all moneys appropriated by the common council for such purposes shall be expended by the said board and paid from the appropriate fund provided by the common council therefor. In the erection of public buildings and paving of streets and construction of sewers the board shall advertise for proposals to execute the work according to plan and specifications, and the board may contract with the lowest responsible bidder: Provided, it shall be at their option to reject all proposals made.”
The charter of the city of Detroit provides (section 8, chap. 11, Local Acts of 1883, p. 629):
“No contract shall be let or entered into for the construction of any public work, or for any work to be done, or for the purchasing or furnishing of supplies for said city not herein provided for, and no such public work, performance, purchasing, or supplying shall be commenced until approved by the common council, and until the contract therefor has been duly approved and confirmed by the common council, and a tax or assessment levied to defray the cost and expenses of the same; and no such work, supplies, and materials shall be paid for, or contracted to be paid for, except out of the proceeds of the tax or the assessment thus levied.”
It is very plain that the approval of the common council is not a mere matter of form, but a necessary-requisite to the validity of the contract. In this case, the common council seems to have abandoned the work, as nothing has been done towards the paving of the portion of Grand Biver avenue, covered by relator’s contract, since the refusal to approve his contract, — a period of over six months. It must be conceded, I think, that the common council, after bids have been received and contract made by the board of public work, would have the right to abandon the proposed paving, or to change the manner of it; and the power to reject any contract seems to be given this body, as their approval is made necessary before any work can be commenced under it. It is not necessary to determine in this case whether the common council could refuse to approve relator’s contract (he being the lowest responsible bidder), and then go on with the work by authorizing the board of public works to enter into a contract with a higher bidder, and approving the same. Practically, in this case, all the bids have been rejected, and the common council declines to go on with the paving of the street.
It is contended by relator’s counsel that the authority to reject all the proposals is vested in the board of public works, and not in the common council; that it is the policy of the statute to confer upon the board of public works everything in the nature of administration, and to confine the common council to its sphere of legislative action. But the power of the common council goes further. No paving can take place unless the money for the same is appropriated by the council for that purpose,, and no work can be done except under a contract approved by the same body. The power to approve would seem necessarily to imply the power to reject; and the only provision that appears to hamper the action of the common council in this matter is the provision that the contract must be let to the lowest responsible bidder. In the absence of any fraud, or any violation of the law, in respect to the lowest responsible bidder, it seems clear to me that the common council has the right to reject a contract, and to refuse to go on with the work. This practically is the rejection of all bids.
The writ must be denied, with costs.
The other Justices concurred. | [
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McGrath, J.
This action is brought to recover for injuries occasioned by reason of an alleged defective highway.
From St. Olair to Port Huron the highway is laid along the west bank of the St. Clair river. Near where the injury occurred a creek empties into the river, and for a distance of from 30 to 40 rods on either, side of this creek the road-way had been built up with logs and earth. To protect this portion of the highway from the action of the water,' the township had constructed a breakwater, from 2 to 3 feet high, for some 60 or 80 rods along the river. The breakwater was formed by first laying a line of logs parallel with the river, and then piling traversely thereon slabs and edgings to the height of the road-bed. The slabs were 4 feet long, the outer end of the pile being higher than the inner. The space between the pile of slabs and the bank had been filled in with earth, which extended about half way over the slabs. A bridge about 16 feet wide spanned the creek. North of this bridge the breakwater starts out in a northeasterly direction, so that the road-bed increases in width to some 40 or 50 feet at a point 5 or 6 rods north of the bridge. Going north after crossing the bridge, the usually traveled way inclines to the west. A footpath follows the edge of the slabs from the bridge northerly. There were frequent heavy rains during the fall of 1886, and the water in the river was unusually high, and at the time of the injury stood within 8 inches of the top of the slab-pile. The boat swells dashed the water into- and over the slab-pile, and the filling at the inner end of the slabs had, in places, become undermined, and holes, from 6 to 8 inches in diameter, had appeared, from time to time, on the inside line between the old highway and the edgings. At the time of the injury two-holes existed, — one at the bridge, which was “2 feet across,” and into which a rail or plank had been stood on end to warn the public; and the other, 20 to 30 feet north of the bridge. The witnesses generally agree as to the number and location of the holes that appeared, although two witnesses say that there were three -holes, within the distance given, north of the bridge.
On the evening of November 18, 1886, at between 4 and 5 o'clock, plaintiff, on horseback, was riding north upon this portion of the highway at a gallop, when his horse either stepped into a hole already existing, or broke through at another point where the filling had been undermined, and plaintiff was thrown from his horse, and severely injured.
The first question of fact was, at what point in the road did the accident occur ? The person who saw plaintiff fall, and who ran to the spot and assisted him, the person who took plaintiff from the place with a conveyance, and the person who, upon the following morning, took from the hole one of the horse's shoes which had been wrenched off, who were each called by. plaintiff, testify that the horse broke through and plaintiff was thrown at a point 5 or 6 rods north of the bridge; that the hole was a fresh one, and there was fresh dirt around it, and there-was no other hole, until a point from 3 to 4 rods south was reached. The main traveled track at this point was near the west side of the road. There was room to drive along west of the wagon track. It was about 13 or 14 feet from the east side of the main track to the west -end of the slabs, or to the point where the horse broke through. It had been raining for several days, and rained in the forenoon of the day of the accident, and, although the soil was sandy, there was a depression in. the road-way at this point, and water stood to the depth of from 3 to 4 inches across the tracks, and up to within 3 or 4- feet of the place where the horse broke through. The bed of the road-way for several feet west of the slabs was covered with greensward. The wagon tracks were all from 6 to 10 feet west of the slabs at this point. The only place where the traveled track came near the slabs was at the bridge.
Plaintiff's contention was that the accident occurred within a few feet north of the bridgethat there was a ¡mud-hole in the road just north of the bridge, and two holes at the edge of the slabs, within a few feet of each other ; that he saw these two holes ; that his horse stepped into the second hole before plaintiff could prevent him ; that plaintiff pulled up on the horse, and the horse recovered himself, but immediately either stepped into a third hole or broke through ; that the horse turned towards these holes to avoid the mud in the road.
Plaintiff's brother, next morning, went to the scene of the accident, and describes two holes, and only two, just north of the bridge, within 8 feet of each other, and says that he saw the prints of the horse at the second hole. Another brother testifies to going to the place three days after the accident, and to finding a water or mud hole in the road-way just north of the bridge, “ 8 feet wide and 16 feet long,'' and two holes about 2 feet deep at the edge of the slabs opposite the water or mud hole. A brother-in-law says that he found a mud hole in the road just north of the bridge; that it ran about 16 feet north and south, and about 6 or 8 feet wide; that there were two holes at the slabs about 8 feet east of the mud hole. Two wituesses say that they saw the place three or four days before the accident, and think there were three holes just north of the bridge. A large number of witnesses were sworn who agree that there were but two hbles within six rods north of the bridge before the accident, and they locate these, one at the bridge and the other within two rods north of the bridge.
The only evidence on the part of the plaintiff, other than that of the three witnesses first referred to, tending to locate the place of the injury, was that of plaintiff and that of the brother who says he saw the prints of the horse. No witness denies the existence after the accident of the freshly-made hole 5 or 6 rods north of the bridge. Plaintiff’s witnesses generally say that they did not look for it. A number of witnesses locate it, and testify to the fact of its existence, and that it was discovered just after the accident, and that it was made in the greensward, and surrounded with fresh earth.
Counsel for defendant requested the court to instruct, the jury as follows:
“ 1. If the hole made by the plaintiff’s horse did not exist before the accident, but was made at the time of the accident by the plaintiff’s horse, and there was nothing upon the surface of the road at that point to give notice or knowledge that a hole was being eaten away underneath by the water, and no notice was given to the township officers of such undermining, then the plaintiff cannot recover.
“2. If the hole or holes into which plaintiff’s horse fell existed before the accident, and were visible at a distance great enough to allow a person of ordinary care and prudence, riding at ordinary or reasonable rate of speed, to avoid them, then the plaintiff was guilty of contributory negligence, and cannot recover.”
The court refused so to instruct.
Counsel for defendant requested leave to submit to the jury the following question:
“Did the horse ridden by plaintiff break through at a point where there was before that no hole and no visible defect?” .
The court refused such request.
The court instructed the jury as follows:
“1. If you find that, at the point where the plaintiff was injured, the road was graded up higher than the adjoining land, and was level on top, and the earth thrown over the west end of the edgings in such a manner as made that part of the road-bed apparently intended for travel, and similar in appearance to the remainder of the road-bed west, and level with it, and there was no visible sign to indicate to a person of average perception and care that any portion of the road-bed was unsafe and dangerous, then the plaintiff would have a right to travel over any part of the road so worked and prepared as a road-bed, on using reasonable care and caution to avoid danger and injury.
“2. Where, from the location of the road or road-bed,, it is liable to be affected by the action of the water in the river, and rendered unsafe, the officers of the township are required to act upon the warnings of experience conveyed by such circumstances, and the effects commonly known to arise therefrom, and to see to it that such results and defects, if they arise, are remedied within reasonable time, and after a reasonable time and opportunity being given so to do. If a dangerous defect exists, and the officers of the town are actually notified thereof, it is their duty to remedy the same; but actual notice to the officers is not necessary to be shown. If they have knowledge thereof, however obtained, it is sufficient to make it their duty to act; and if, by the exercise of reasonable care, such as prudent men of ordinary and reasonable intelligence possess and might exercise, such as men commonly holding such positions in the country towns usually possess, they would have known of such defect, and failed to repair it after reasonable time and opportunity so to do, and injury results therefrom, the township is liable. Notice or knowledge of the defective and dangerous condition of the highway by the overseer of the highways in the district in which the highway is situated, or by the highway commissioner of the township, is notice to the town ship; and whether either of those officers had such notice or knowledge is for you to determine from the evidence and all the circumstances shown. The fact of the road being in a dangerous condition, and the negligence of the township in failing to keep it in reasonable repair, and that the plaintiff was injured in consequence thereof, must be shown to you by a fair preponderance of the evidence.”
“ There is testimony as to the existence of a mud or water hole in the road near the place where the plaintiff was injured, and that plaintiff diverted or departed from his course to avoid it. Now, it was not necessarily negligence on his part that the plaintiff avoided this hole, either by a voluntary act, or by his horse naturally turning to avoid it; but whether for the plaintiff to do so, and take the course he did, and in the manner he did, was negligence on his part, as I have before defined it, is for you to determine, under all the circumstances of the case. There is some question made in the evidence whether, when the plaintiff’s horse stepped in and fell, and plaintiff was injured, there was a visible hole in the surface of the road at the time, or whether, by the acfion of the watér and waves, the bed of the road had been disintegrated, and the dirt thrown or worked out so as to leave a thin crust of earth, upon which the plaintiff’s horse stepped, and broke through. Upon this subject I say to you it makes no difference as to the liability of the defendant that there was no existing, visible hole, if from the construction of the road, and the natural and unavoidable action of the water and its washing and suction, the road-way there would be undermined and weakened, and if it was so undermined, and the township officers had notice thereof, or might have known it by the exercise of reasonable diligence and watchfulness, and had reasonable opportunity to keep and make the road safe, and you are satisfied that at the point where the horse fell the road was constructed to all appearance as a part of the regular road, and so near the traveled track that the highway at that point was not, in consequence thereof, in a reasonably safe condition and fit for travel.”
On cross-examination, one of plaintiff’s witnesses testified as follows:
“Q. Was there anything in the appearance of this road north of the bridge by which you could tell before the hole was made that the earth was not safe at that point?
“A. No, sir.
“Q. You could not tell until after the hole had been made?
“A. No, sir; until it broke through.
“Q. Did those holes that were made previous to this occur at intervals?
“A. Sometimes.”
On re-direct examination the witness testified:
“Q. As I understand you, the water undermines the road there and breaks through?
“A. Yes, sir.
“Q. An examination of the road could be made there to see if it was dangerous?
“A. I suppose you could go along and dig, and see if you could make a hole or not; that is about the only way you could tell.
“Q. That year, on account of the high water, there was a good deal more washing than at any other time?
“A. Yes, sir; there has not been a hole washed this .summer, that I know of.”
Another witness was asked by plaintiff’s counsel:
“Q. From the appearance of the surface, could a team •drive any place over it?
“A. Well, yes; I should not hesitate to drive there.”
Another one of plaintiff’s witnesses says:
“The road seemed to be on the top perfectly good, .and then it would break through.
“Q. Was there anything to indicate that the road was unsafe at that point to a person who didn’t know it?
“A. I think not.
“Q. There was not anything to indicate you should ■drive towards the edgings there?
“A. I think not.
“Q. Was it grown over with grass out there, so as to show there was nobody ever traveled on it?
“A. Yes; I think there was some there.”
Another witness says:
“Where he went through it was solid earth above and grassed over, but it washed and cuffed out underneath.”
It is clear from this testimony that, within a distance of 30 feet north of the bridge, where the testimony indicates that the road-bed was narrow, there was, and had been for some time, a mud-hole, which travelers would naturally seek to avoid, and within a few feet east of this mud-hole there were two dangerous holes at the edge of the slabs, which had been there for some time; that the town authorities had actual notice of the condition of the road at this point; that in one of these-holes a danger signal had been placed by the town authorities; that the other hole was left open and unguarded. If this second hole was so near the traveled way, or way intended for travel, that persons would be likely to get into it in seeking to avoid the mud-hole, the township was guilty of negligence in allowing it to-remain there for an unreasonable time. If, however, this hole was so open and notorious that a person using ordinary care would have observed and avoided it, plaintiff was guilty of negligence in riding into it. These-questions were for the jury, under the testimony as to-the condition of the road at this point, and the state of the weather at the time.
If, however, the accident occurred at the point 5 or 6-rods north of the bridge, and the injury was occasioned by the horse breaking through what, upon the surface, appeared to be solid earth, defendant could not be-chargeable with negligence. The court below assumed that the township was bound to know that this particular spot in the road-way was weak, and that it should have repaired it, and laid down one rule whereby to test plaintiff’s negligence, and another to measure the defendant’s. If the road appeared safe to plaintiff, why not to defend ant’s officers? This is not a structure like a bridge, where decay inevitably exhibits itself, and where opportunity is had to foresee and avoid that danger. Here were some 60 or 80 rods of this breakwater. Two holes appeared within 30 feet of this bridge, and one 20 or 30 rods north of the bridge. Prior to this accident, but 3 or 4 feet of the entire line had given way. If the accident occurred at the point claimed by defendant, this very horse had probably traversed' at a gallop some 3 rods of this line, and had not broken through. This defect was latent. The most that was known by the township authorities was that these breaks were liable to occur, but just where there was no means of discovering, except, perhaps, as was said by one witness, by digging down and; finding out, and this very course would make them more liable to occur. There was nothing so suggestive of danger at that point as to make the township liable for the injury. Not only were the surface indications alL right, but the horse broke through 13 or 14 feet east of the traveled way. It is probable occurrences, rather than, possible happenings, that municipalities are required to guard against. Cavities occur over water-pipes, gas-pipes, and sewer-pipes in the traveled parts of the streets of our densely populous cities, but a cave at one point does not indicate that the street will cave for the whole length of the conduit, and does not impose the duty of testing the entire length of the street. Defendant was entitled to an instruction that, if the accident occurred at the point 5 or 6 rods north of the bridge, and the hoje made by plaintiff’s horse did not exist before the accident, but was made at the time of the accident by plaintiff’s horse, and there was nothing upon the surface of the road at that point to give notice or knowledge that a hole was being eaten away underneath by the water, the plaintiff.! could not recover.
Defendant's second request was substantially given.
Defendant was entitled to have the above question submitted to the jury.
It must be conceded, in view of all of the testimony, that, if the accident occurred near the bridge, it must have happened because plaintiff’s horse stepped into an existing hole; and the only questions, then, were the width of the road at that point, the distance of the hole from the usually traveled way, as to whether defendant was liable for permitting it to remain at that point, and whether plaintiff was negligent in not avoiding it.
The first instruction given by the court was correct. It, is not unusual for persons to deviate from the beaten track upon a highway. There is a distinction between the beaten track and the way intended for travel. There is a class of cases which hold that a person deviating from the traveled way assumes the risk, but in ■ those cases the way intended for travel was forsaken.
The second instruction was erroneous, in that it, applied to the facts in the present case, informed the jury that it was the duty of the township to protect the public against latent defects in the highway.
The instruction numbered 3 was clearly erroneous, for the reasons already given.
The judgment is reversed, and a new trial ordered, with costs of this Court to defendant.
The other Justices concurred. | [
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Long, J.
This bill was filed to set aside two deeds given by James FitzPatrick, Sr., in his life-time, and his wife, Elizabeth. Michael and James are sons. The deeds were made March 4, 1890.
The first deed conveys lots 3, 9, 10, 11, 12, 13, 14, and 15, of FitzPatriek’s addition to the city of Grand Rapids, to James FitzPatrick. , The consideration expressed is the sum of one dollar; and it is also recited therein that it is given upon the express understanding and agreement that James is to take care of his father and mother as long as they both shall live, and give both of them a suitable maintenance and support, and provide them with all the necessaries of life, and give them both his personal care, if they need it, so long as they live. It is also stipulated in the deed that the lands were not to be sold or incumbered in any manner unless the first parties signed the conveyance. It is also stipulated therein that the parties are to be supported and taken care of in the house on lot 3, if they so direct, and to be taken as good care of, and provided for as well, as they have been for the last year, by the second party and Ms wife. The other deed conveys lots 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29 of the same addition, also to James FitzPatrick. The consideration expressed in this deed is the sum of one dollar. No stipulation for support is contained in it. It is shown,' however, and it is not much in dispute, that the understanding was, at the time the deed was given, that the parents were to be supported by James as provided in the other deed; that this was the inducement which led to the giving of the two deeds.
An arrangement was made between the parties that defendant, James, who was married and 1'iving at St. Johns, this State, should sell out his business there, and move to Grand Rapids, into the house with his father and mother, and take care of them. This he did, and the parties seem to have lived amicably together during the life-time of James, Sr., who died June 28, 1890, about four months after the deeds were given. It is shown that during this time James treated his father and mother with great kindness, and made the last days of his father as peaceful as a dutiful and loving son well could. After the father died, disputes seem to have arisen between James' wife and his mother; and the latter charges that she was left alone in the house for several days at a time without sufficient food, with no one to look after her wants, and no means to procure food, and that James had forbidden the grocers to trust her for the necessaries of life. The mother finally left the house, and is now living with a stepson a few doors from the house which for many years had been her home, and which James and his wife continue to occupy. It is charged in the bill that the deeds were procured by fraud and undue influence exercised by James over his father, and that he has not kept his agreements, which were the real considerations for the deeds. Certain of the property has been sold and conveyed, and the only property now in controversy is lots 3, 9, 10 11, 12, 13, 14, 15, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29.
The court below set the deeds aside by a decree made March 14, 1891, so far as they affected the property last described, from which decree the defendant appeals
We have carefully examined the record, and think this decree ought not to stand. A will was made by James, Sr., January 28, 1888, which since his death has been duly proven in the probate court of Kent county, and from which no appeal has been taken. By the terms of the will the complainant Elizabeth is given the use for life of all this property. It appears that the property is vacant lots, from which no income could be derived by the widow. Her life-estate given by the will would not support her. We are not satisfied that such undue influence was exercised by James over his father that the deeds should be set aside, and the fraud charged in procuring the deeds is not proven. We are of the opinion, however, that James has not carried out the stipulation contained in the deed, and the understanding by which he was to have the title to all this property. He does not seem to have taken that care of his mother since the death of the father which it was agreed he should take. It was plainly contemplated by the parties that the mother should have a comfortable home in the house where she had lived so many years, kind treatment, and all the comforts of life furnished her. It is evident she has not had this, and that life with James and his wife is distasteful to her. It may be that her age and infirmities have in a measure brought about the estrangement between her and James* wife. Whatever have been the causes, James has not kept his agreements in this regard; and, inasmuch as it is apparent that the parties cannot longer live in the same house, we regard the rights of Elizabeth there as paramount to those of James and his family.
The decree of the court below will be reversed and set aside, and a decree entered in this Court as follows:
1. That the complainant Elizabeth have the exclusive use of the house during her life-time.
2. That James pay to his mother the monthly sum of $20, to be paid- on the 1st day of each and every month during her life.
3. That said sum be a first lien upon the lots and premises last described herein, in the nature of a mortgage.
4. That after the death of Elizabeth the title to the premises be confirmed in James as an absolute estate.
5. That a certified copy of such decree be recorded in the office of the register of deeds of said county of Kent.
No costs will be awarded.
Morse, C. J., McGrath and Grant, JJ., concurred with Long, J.
Montgomery, J. I think the decree below was right, and should be affirmed. • | [
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] |
Montgomery, J.
This is an action of replevin, brought to recover a piano which had been sold by the plaintiffs to the defendant Almond Hyde, who delivered it as a .gift to defendant Otho F. Hyde, who in turn sold it to ■one John P. Niggeman, to be delivered to the defendant railway company for shipment to Niggeman. It was so delivered and in the possession of the railway company when this suit was brought.
The plaintiffs claimed at the trial that the defendant Almond Hyde purchased the piano fraudulently, with intent not to pay for it. The jury found against the plaintiffs on this issue, and, the defendants having waived ■a return of the property, found the value of the property .at $250. • The defendants Hyde in open court assigned all their interest in the verdict to the defendant company, and thereupon the judgment was entered on the verdict in favor of said defendants for the value of the property as found by the jury. The entry of this judgment is assigned as error.
It is said that, as the evidence shows that Niggeman was the real owner, the defendants were not entitled to the full value of the property. But the rule is otherwise. When the defendant is in lawful possession of the property, and the plaintiff is a stranger to the title, he cannot complain of the verdict for its value in favor of the defendant. The defendant may be accountable to the true owner; but is, in the first instance, even though a mere bailee, entitled to the return of the property, or its value if return is waived. Davidson v. Gunsolly, 1 Mich. 388; First Nat'l Bank v. Crowley, 24 Id. 492; Steere v. Vanderberg, 90 Id. 187; Wells, Rep. § 763.
The cases of Pearl v. Garlock, 61 Mich. 419, and Treadwell v. Paddock, 75 Id. 286, cited by plaintiffs as supporting their contention, are not in point. In each of these cases plaintiff offered to show a title or interest in himself on a-judgment of dismissal, and it was held that he was entitled to do so ; but in the case at bar the plaintiffs claim was litigated, and determined adversely to them ; and, this being so, and the undisputed evidence showing the defendant railway company fully entitled to possession, a judgment upon the verdict might properly be entered in favor of such company. The judgment in form, however, was in favor of all the defendants. This was error. Steele v. Matteson, 50 Mich. 313. The error is not one which makes a new trial of the case necessary ■or proper.
The judgment below will be reversed, and a judgment entered in this Court in favor of the defendant railway company, with costs of both courts to be taxed.
The other Justices concurred. | [
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] |
Morse, J.
The plaintiffs brought suit in the circuit court for the county of Washtenaw upon the following contract :
“8600. Ann Arbor, Mich., December 31,1881.
“ On or before the thirty-first day of December, 1883, for value received, I promise to pay to Rice A. Beal, or bearer, six hundred dollars.
“This note is given on condition that said Bice A. Beal,, his heirs or assigns, shall erect a building on the north-east corner of Ann and Main streets on block two, north of Huron street, in the city of Ann Arbor, and that said building shall, on or before the thirty-first day of December, 1883, be occupied as a post-office. This note' shall become operative and due as soon as the post-office is moved into said building. If the building is not erected, and the post-office placed therein, before the thirty-first day of December, 1883, then this note will become null and void.
[Signed] “J. A. Polhemus.”
The cause was tried before the Hon. William Newton, who made a finding of the facts, and rendered judgment for the plaintiffs for the amojmt of the contract and interest, less an offset proved by defendant.
The plaintiffs are the executors of the late Bice A. Beal. The note or contract was found among his effects after his death.
The judge finds that the contract was one among several given to Bice A. Beal by persons who owned property on the same street and on the same block in which said Beal owned, or had contracted for, lots on which to erect the building mentioned in the contract, and that the defendant and others were influenced to make such contracts by the prospective improvement of the value and rental of their property by the erection of such a building, of the value of between $20,000 and $30,000 upon Beal’s vacant lot, on the north-east Gorner of Ann and Jdain streets in Ann Arbor; that this note or contract, with others, was the inducement offered Bice A. Beal for the erection of the building; that the post-office, at the time of the making of the contract in suit, was located on Huron street, one block south of the site of, the new building, and had been there for 15 years; that the locating of the post-office in the Beal block, when completed, was supposed by the parties contributing, and regarded" by them, a desirable means of drawing the public to the street and block on which the new building was to be placed, and that it would be the means of enhancing their property in the block. But for these contracts, Bice A. Beal would not have erected said building, and they were a part of his consideration for doing so. The po3t-office was moved into the new building erected by Beal, January 1, 1883, and has been there located ever since. The building was fully completed before December 31, 1883, and cost between $25,000 and $30,000.
The court further found that the contract was a valid one, and that there was a valuable consideration for the same, and no fraud or overreaching in the same by Bice A. Beal; that the contract was not in contravention of any law or contrary to public policy; and he further finds that Bice A. Beal, in securing the post-office to be placed and located in his building, used no undue influence upon any department or officers of the government, and was not guilty of any corruption or corrupt practice in making such contract, and did no more than any honorable man might do in renting his building to the government for the use of the post-office at Ann Arbor.
A number of findings of fact were proposed by the counsel for defendant, and submitted to the circuit judge, who refused to allow them.
Error is based upon such refusal; but we cannot interfere with the action of the trial judge in this respect. It is his exclusive province to pass upon the testimony, and draw the inferences therefrom. His conclusions as to its weight and bearing are not reviewable in this Court. And we do not find, from a careful survey of the evidence, that he has erred in fact. The case must therefore be disposed of upon the facts as stated in the findings; and upon the findings the conclusions of law are right.
It is contended, in an able argument by the counsel for the defendant, that the contract is void as opposed to public policy. This argument is based upon the assumption that Beal, who was a prominent member and leader of the then dominant party in the nation, sold his influence with our Senators, and that this contract was given in payment for such influence; that, in consideration of the payment of the sum therein mentioned, Beal stipulated to exert his personal and party influence upon an officer of the government. And it is claimed that such personal influence cannot be a matter' of bargain and sale to be enforced by the courts.
He cites an extract from the opinion of the United States Supreme Court in the case of Oscanyan v. Arms Co.., 103 U. S. 261, in which it is said that—
“ Personal influence to be exercised over an officer of the government in the procurement of contracts is not a vendible article in our system of laws and morals, and the courts of the United States will not lend their aid to the vendor to collect the price of this article.”
We fully indorse this language, and we agree in much that was said upon the argument as to the deplorable effect of corruption in the governmental service, and the necessity of courts refusing in any and all cases any aid to those who are seeking to recover the price of their labor as lobbyists, either before Congress or any department of the government.
But the argument does not touch the present ease. Mr. Beal had a perfect right to be heard before any officer of the government, or any department of the same, as to the merits of his building as a place for the location of the post-office.
It is not shown by the findings or the evidence in the case that he used any improper means to gain his point, or even that he influenced any Senator or Representative in Congress, or any officer of the government, to interfere in his b’ehalf. He went to Washington personally, and, while there, secured the location of the office where he wanted it; but there is not the slightest testimony that he used any undue means to accomplish his end. We cannot presume that he used his personal power, which is said to have been very great, in a corrupt or unseemly manner, or in violation af any public policy. For aught we know, he appeared, as any citizen might and has a right to do, before the proper office at Washington, and stated the merits of his claim so convincingly and conclusively that the location desired seemed to be the most proper and available one. Certainly, there could be nothing wrong in this. It is true, there is evidence in relation to some of the contracts, not in suit, that Beal boasted he could control the Senators from this State, and that he niust have money to go to Washington to do so; but there is no testimony that either one of them lifted a hand or said a word in his behalf. And there is nothing to show that in the present case he made any such representations to obtain the' contract.
The defendant agreed to pay a certain sum upon the accomplishment of an object in which he saw a future benefit to his property. That object was attained, and he has had the benefit he desired. There is no valid reason why he should not fulfill the contract on his part, as Beal promptly fulfilled his part of the agreement.
The judgment of the-court below is therefore affirmed, with costs.
The other Justices concurred. | [
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] |
Champlin, J.
The action in this case is trover for a quantity of pine saw-logs. The suit was commenced by declaration filed and served on the second day of February, 1886. The conversion oí the logs is alleged to have occurred on the thirtieth day of January, 1886. The logs were cut by plaintiffs, marked with their mark, and deposited upon skidways near a railroad owned and operated by defendant, from whence they were to be transported by rail to Manistee lake. They were cut from the south-east quarter of the south-east quarter of section 5, in township 20 north, range 17 west.
Defendant, claiming to have bought the logs from one Oarrie L. Munn, some time in January, 1886, took possession of the logs, and removed them in the night-time, cut out the plaintiffs’ marks, and placed his own upon them.
The plaintiffs claimed ownership of the logs through tax titles from the State of Michigan, by Auditor General’s deeds, for delinquent taxes for theyears 1859 to 1861, both inclusive. ■The defendant attacked the validity of these tax titles for several reasons, which will be stated further on.
Counsel for the plaintiffs deny the right of the defendant to contest the validity of the plaintiffs’ tax deeds, and they invoke the provisions of section 1166 of Howell’s Statutes to support their position. This section of the statute was not enacted until 1863, and stood as section 161 of that act. That act was prospective, and the point raised was adjudicated in Clark v. Hall, 19 Mich. 373, and need not be further noticed,
Objection is made to the validity of the tax deeds for the reason that the corrected assessment rolls in the hands of the supervisors did not contain the taxes assessed against the several parcels of land in the township, and the assessment rolls and tax-lists placed in the hands of the treasurer for collection for the years 1859, 1861, and 186 J were not copies of the assessment rolls remaining in the hands of the supervisors.
It appears that the supervisor of the town of Freesoil, in which these lands were situated, did not in any of the year» mentioned extend the taxes upon his corrected assessment roll, except one year, and then only partially so, and in that case the taxes on the corrected roll did not agree with those upon the copy of the assessment roll and tax-list delivered to the township treasurer.
It is claimed by defendant’s counsel that this is a fatal defect, and renders the levy and tax deeds void. On the other hand, plaintiffs’ counsel contend that the law neither required nor contemplated that the supervisor should extend the taxes assessed by him upon the corrected assessment roll, but only that he should copy the assessments upon such roll as corrected, and extend the taxes upon such copy.
The question is an important one, for, if the defendant’s position is correct, it disposes of the merits of the controversy, for the reason that the titles through which the plaintiffs claim would thereby be invalid, so far as it depends upon those years
It certainly has been the understanding of this Court that the taxes assessed must be extended upon the corrected assessment roll which the supervisor receives from the board of supervisors, and which the law requires shall remain in his office.
In Ferton v. Feller, 33 Mich. 203, Mr. Justice Graves, speaking for the Court, said:
“ The roll first made by the supervisor is carried before the board, and after final correction there, and after its authentication by the chairman, it is delivered to the supervisor, who is required to iile it and Tceep it in Ms office. Section 995, C. L. No other roll is brought to the attention of the board, and this alone receives the sanction of the board. With this before him, and the requisite certificates and statements in regard to the taxes to be levied, and their destination, the supervisor is required to proceed to assess ‘according and in proportion to the individual and particular estimate and valuation specified in the ass. ssment roll.’ Section 999, C. L.
“ He is next to make the collection roll, and this is required to be a copy of the corrected roll in his office. Section 1002, C. L. As this correspondence is indispensable in the first instance, its continuance is equally indispensable. The symmetry of the proceedings, the consistency of the records, and the dependence of the collection roll upon the first roll and their legal connection, all alike require it. As the first is to remain in the supervisor’s office as a public record or memorial, so the collection roll is to go ultimately to the county treasurer’s office, to be kept for the same purpose. Section 1023, C. L. The entire theory of the system, and all the regulations, contemplate that these documents shall be and continue substantially alike, and in all essential particulars speak the same language when referred to. No lawful change can be made in the collection roll, unless warranted by the state of the roll having the sanction of the board of supervisors; and consequently the collection roll cannot legally be changed so as to be in substantial disagreement with the other.”
Notwithstanding this decision, which is directly in point, counsel for plaintiffs insist that we, have misconceived the intention of the Legislature, and the language of the law relative to the assessment and collection of taxes, and that it did not require the assessment of the taxes to be entered upon the original assessment roll. And they call attention to the language of the statute, which designates the copy to be delivered to the treasurer for collection as the “assessment roll and tax-list.” Sections 818, 819, 821, Comp. Laws 1857. It is so designated in these sections, but that is merely to distinguish'it from the corrected assessment roll, from which it is copied.
Section 815, Comp. Laws 1857, provides that—
“ The supervisor of each township shall proceed to assess taxes for the amount specified in such certificate, together with a tax for the amount of money to be raised by his township, adding thereto, and to all other taxes required by law to be assessed by him, not more than four nor less than two per cent, for collection expenses, upon the taxable property in the township, according and in proportion to the individual and particular estimate and valuation as specified in the assessment roll of the township for the year.”
The supervisor is required to assess, that is, to set, fix, or charge, a certain sum to each tax-payer in the proportion named. Where shall he set these sums or enter these charges? Certainly not upon fugitive sheets of paper, nor in the copy of the assessment roll, for as yet the statute has said nothing of the copy of the corrected roll. That is made a subsequent duty by a succeeding section. The law has •always required the supervisors to make their assessments upon blanks furnished by the Auditor General, and it is common knowledge that the blanks furnished, whereon to assess the property, do and always have contained the proper columns for extending the tax upon and against the original assessment. In arriving at the intention of the Legislature, the whole law must be taken and construed together. In so doing, it is beyond question that the Legislature intended that the taxes should be entered upon the original assessment roll. This is apparent from section 830, which reads as follows:
“ The production of any assessment roll, on the trial of any action brought for the recovery of a tax therein as: e3sed, may, upon proof that it is the original assessment roll, or the assessment roll with the warrant annexed, of the town-snip named as the plaintiff in such action, to be read or used in evidence; and if it shall appear from said assessment roll that there is a tax therein assessed against the defendant in such suit, it shall be prima facie evidence of the legality and regularity of the assessment of the same,” etc.
It thus appears that the Legislature intended that the tax should be entered upon the original roll, and that the roll to which the warrant is annexed should be a copy thereof, and either should be prima facie evidence of the tax therein assessed.
This provision relative to the correspondence of the original and copy of the assessment rolls is enacted for the benefit and protection of the tax-payer, as well as for the protection of the public. It was designed to protect the tax-payer against unauthorized meddling with the amount of taxes assessed against him, after the roll has passed from the hands of the supervisor, as was the case of Ferton v. Feller. It is also designed to protect the township against the loss or destruction of the collection roll, and to afford means for the-collection of the taxes assessed. It was not, therefore, a-mere irregularity in the procedure, but a fundamental requirement, which cannot be dispensed with, and the omission to observe this requirement invalidated the tax deeds founded upon the taxes extended upon the collection roll.
The counsel for defendant also claimed that the highway tax for 1860 was excessive. He introduced the records of the-meeting of the commissioners of highways held in May, by which it appears that they voted to levy a tax of one mill on the dollar upon the valuation of the real and personal property in the town for highway purposes. He also introduced the records of the township board, to show that no highway tax was voted by the township board.
By the statute, the valuations upon which the commissioners are authorized to assess for highway purposes are those appearing upon the assessment roll of the preceding year. This valuation of the parcel in question was $50. The one-mill tax authorized to be assessed would be five cents. It was assessed upon the roll for highway tax for 1860, at $1. The law would authorize an assessment for highway labor of $1 on each $100 of valuation, and this would authorize an assessment against this land of 50 cents, making a total of 55 cents. The excess rendered the tax void.
For the year 1862, the return of delinquent taxes was not subscribed nor sworn to by the township treasurer. The tax title for this year was invalid for that reason.
The bill of exceptions contains a statement that—
“ The non-resident lands were not assessed in a separate part of the roll from the resident lands in any of the foregoing assessment or tax-rolls for any of the years.”
The law required that “ all lands unoccupied, and not claimed to be owned by any resident of the township where they •are situated, and not exempt from taxation,” should be “ entered on a part of the roll separate from that upon which the estates of residents are entered.” This Court had held this provision mandatory, and that, when it was disregarded, the title based upon assessments so made is invalid. Hanscom v. Hinman, 30 Mich. 419; Rayner v. Lee, 20 Id. 384.
Defendant offered to show title to the logs in a third person, a stranger to the action. Plaintiffs contend that this is not permissible in an action of trover. The law has been settled otherwise in this State. Such testimony was admissible. jUibble v. Lawrence, 51 Mich. 569, and cases cited.
Other objections are urged against the validity of the tax deeds introduced by plaintiffs in evidence, but it is unnecessary to examine them, as those pointed out are sufficient to show that the circuit judge erred when he instructed the jury that the tax deeds were valid.
The judgment must be reversed, and a new trial ordered.
Sherwood and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
Ohamelin, J.
Plaintiff brought his action in a justice’s court to recover for services he had performed for defendants, and, after a trial, recovered judgment for $35.31, besides costs. After suit brought before the justice, the defendants tendered into court $8.95 for damages, and $1.75 costs. Defendants appealed from the judgment rendered by the justice, and a trial was had before a jury, and the plaintiff again recovered judgment for $26.82 damages. Defendants brought the case here upon writ of error.
The assignments of error are frivolous, and without merit. The case was submitted upon briefs. The defendants’ counsel in their brief say:
“There is no dispute as to the time worked, or amount that has been paid, but the dispute is wholly over the price agreed to be paid; plaintiff claiming that he was promised $26 per month, and defendants claiming that the wages were-not fixed at the time', but were to be the going wages. It is not disputed that plaintiff hired out as a chopper, and it is conceded that he did no other work but chop.”
The parties, as well as other witnesses, were sworn and testified, and the jury have passed on their credibility, and found for the plaintiff. There was no error committed upon the trial, and no reason exists for bringing the case here.
The judgment is affirmed, with costs of both courts, and damages are imposed for the vexatious appeal, for which judgment will be entered in addition to that affirmed, to the amount of 120.
The other Justices concurred. | [
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] |
Campbell, O. J.
Plaintiff sued in replevin for goods and chattels taken from his store by defendant under an execution upon a decree against Aaron Wessels. The decree is averred to have been made in a suit by one Miller against Aaron Wessels, jointly with the administrator of Samuel B. Wessels, deceased, and was rendered July 19,1884. The execution was issued and levied in August, 1885, and was for $2,300. It does not appear from the record for what purpose, or under what claim, the bill was filed. It appears by an amendment to the bill of exceptions that the cause was at issue in 1876. The bill of exceptions contains all the testimony. Several exceptions were taken on the trial, but the assignments of error do not include most of them, and are aimed chiefly at the charge, and at the admission'of certain testimony.
The principal objection to the charge is that it should not have submitted to the jury the questions on which recovery was allowed in defendant’s favor. The only ground on which defendant could lawfully recover was that the goods levied on belonged to Aaron Wessels; and it is claimed that no testimony legally establishing that fact appears in the case.
The property levied on included a stock of goods and four cattle. We do not discover in the testimony anything whatever identifying these cattle with Aaron Wessels. The whole testimony seems to have been aimed at the store business, so far as showing any fraud is concerned, and, although there is some testimony about cattle, there is none relating to these cattle, that we have found. The court makes no allusion in his charge to any subject of inquiry except the stock of goods seized.
The great body of the testimony, which is greatly wanting in definiteness, and is claimed to show fraud, relates to fraudulent dealings set up concerning other property of Aaron Wessels not in controversy here. None of the goods levied on were ever shown or claimed to have been transferred by Aaron Wessels for any unlawful purpose, and the levy cannot be maintained on any such ground. This makes the case differ materially from ordinary attempts to set aside transactions as fraudulent against creditors, and raises some difficulties accordingly. To understand the bearing of the questions presented, it is necessary to attend to the way in which they are brought in.
Aaron Wessels appears to have made an assignment about 'the first of January, 1884. Previous to this time plaintiff had, as he testifies, purchased several hundred dollars’ worth ■of goods from him in part payment of a debt. It appears that plaintiff had a claim under the assignment for a balance which does not appear to have been contested. In March, 1884, at a public sale by a sheriff, the validity of which is not disputed, plaintiff bid off goods at about $1,000, and paid for them. These goods, with what he already owned, he used as a stock to open a store with at Salt Eiver, at that time, and he put Aaron Wessels in charge as salesman, and, as he claims, on wages of about $500 a year. These goods were •sold out in the usual way; the stock being replenished by new purchases from time to time, all of which are shown to have been made by plaintiff in his own name, and on his own •credit. The testimony shows him to be of good repute and good financial standing. At the time of the levy, which was not made until August, 1885, rather more than a year from the date of the decree, and about a year and five months after the store was opened, the goods seized were mostly from the purchases made of new goods. There is no testimony tending to show any knowledge by plaintiff of this •decree, or of the suit in which it was rendered, and 'there is nothing showing upon what ground or claim it was rendered. There were two defendants in the original bill, and the defend•ant’s plea avers that each of these defendants filed a separate cross-bill against George W. Miller, the complainant, and Mary Miller, who was not a party to the original bill. As equity has no general jurisdiction to grant money decrees, we have no means of knowing out of what this decree arose.
In order to make out a case, defendant introduced testimony, the ostensible purpose of which was to show that Wessels had made way with a considerable amount of property, and to show a lack of money in plaintiff. So far as Wessels is concerned, there is testimony having a legal tendency to show a removal of some of his property, while he was in business, of. such a character as to be suspicious. More or less of- this was not admissible, as involving little or no personal knowledge. There were some, facts that, as to Wessels, would have an adverse meaning. But, except as to one or two items, the value of which is not shown, none of this is traced to plaintiff, or to his knowledge, and there is no testimony contradicting his version of how he purchased those goods. There is no .claim that these were the goods replevied, or that they were sold so that the proceeds went to the purchase at the sheriff’s sale. And there is no testimony contravening plaintiff’s purchase of Wessels. The court, in his charge, paid no attention to any of these previous transactions, as having any necessary connection with the real controversy, beyond throwing light on the relations of the parties, and a special exception was taken to this suggestion y but, as error was not assigned on this exception, it need not-be considered beyond its effect on the general charge.
The most important question, perhaps, is whether, if the-testimony tended to show that the money to purchase the stock came from Wessels, the stock, as it stood when the levy was made, was subject to that'levy.
Assuming, which is not very clear, that there was testimony from which it could be inferred that Wessel’s means-furnished the price, all of that testimony referred to property owned before Wessels made his assignment, and subject to the assignment. By our statutes then in force, the whole-estate vested in the assignee, and was not subject to the seizure-of any particular creditor, and was not subject, therefore, either to levy or to any other legal appropriation. The assignee, and not Wessels, owned it, and had a right to follow it.
But, if this were not so, the case stands no better. The-fact that one man furnishes another with means to start in business, whether for honest or for dishonest purposes, does not give the former any legal title in the goods. If funds- are so invested, they may create a trust in favor of credifors to that extent, but the goods do not belong to the debtor In the present case, the business has been carried on as plaintiff’s busin. ss, and the goods bought on his credit would be subject to his creditors, whatever equities may exist as to others. Goods that Wessels never owned cannot in law be treated as his. Any trust resulting in favor of his creditors must be worked out in equity, if the debt cannot be satisfied at law.
We think the objection is well taken that the court should not have charged that there was any case against defendant to be passed on by the jury.
It is not necessary to consider the errors assigned on testimony. The testimony, whether on knowle ige or otherwise, was to a considerable extent let in, apparently, on the theory that this property had been disposed of by Wessels in fraud of his creditors, and was therefore subject to levy; when in fact, as the court charged, the sale was valid, and the proceeds went to pay creditors. The testimony especially complained of was open to some other criticism. As we did not have the benefit of oral argument by plaintiff’s counsel, and their brief is rather general, we do not think it needful to go further.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Morse, J.
This cause was before this Court in the October term, 1886, and will be found reported in 63 Mich. 557. The cause, as then presented, rested upon the statement of facts made by the counsel for the plaintiff in his opening to the jury. We then held that such statement, if proved, entitled the plaintiff to a recovery.
The cause has since been tried in the superior court for the city of Grand Eapids, and the jury, under the instructions of said court, rendered a verdict in favor of the defendant. The plaintiff brings error.
The undisputed facts, as developed upon the trial, are as follows:
Peter Brandel, the deceased, was a native of Holland, and 39 years of age at the time of his death. He was a man of family, and lived about a mile south of the car-shops, where he was employed, said car-shops being located at or near the southern boundary of the city of Grand Eapids. He was a sobér, industrious man, and a good workman. 'His nearest and easiest route to his home was along the track of the defendant, it being considerably out of his way to follow any of the roads leading out of the city in his direction. He had been in the habit of using the railroad track in going to and from his work for a long time. Some other people living near him also used the track for a like purpose. It does not appear that any permission was ever given him or any one else to so use the railroad track, nor that they were expressly forbidden by any one to do so.
The train which struck and killed him was admitted to be behind time. It usually passed the car-shops before he left his work.
On the afternoon of December 7, 1881, while Brandel was going home as usual upon this track, he was run over and instantly killed.
The engineer saw him upon the track about the time the train should have whistled for a crossing, and gave the usual whistle. When he came within 40 rods of deceased, he again whistled sharp and full. Brandel paid no attention to it, and, when the train was within about 300 or 400 feet of him, the engineer sounded the danger whistle until the engine struck the deceased. This whistle was so sharp and strong that it called the attention of several people to it, and one Abel Staal, the only person who witnessed the accident besides the trainbands, testifies that—
“They whistled so hard that I thought it was funny the man didn’t get off the track. * * * The whistles were blowing so loud I felt like hollering to the man to get off the track. I put my fingers in my ears so as not to hear the sharp sound.”
Bran del was a man in the full possession of M3 senses, but had spells of being absent-minded. He was walking with a book under his arm and a dinner-pail in his hand, and seemed to pay no attention to anything until just as the train struck him; then he turned his head.
He was most certainly, under all the authorities, guilty of contributory negligence in thus walking in such a dangerous place without taking any care or precaution whatever for his safety. The evidence is conclusive that if he had exercised any caution at all, or been at all on the alert for danger, he must have heard the whistles in time to have saved himself by stepping off the track.
We held whén tbe case was here before, taking the statement of the plaintiff’s counsel in his opening to the jury to be true, as we were obliged to do, that he was on the track by permission; that he was unconscious of the approach of the train,which fact was known to the engineer; that knowing he was thus unconscious, and having plenty of time to stop before reaching him, the engineer negligently and recklessly ran the train at full speed upon him; that when the engineer saw that the whistles had no effect upon him, and knew that he did not hear them, it was his duty to “slow down his train, and, if necessary to preserve life or limb, come to a full stop.”
The case was decided expressly upon the ground that the engineer, knowing that the whistles and bells were not suifi cient to warn Brandel of his danger, and being able to stop his train before reaching him, ran recklessly and heedlessly upon him. In such case the contributory negligence of the deceased would not avail against the criminal conduct of the engineer.
But it appears now, from the evidence of the engineer and others, that he was not aware that Brandel was unconscious of the whistles, or would not heed them, until he was within three or four hundred feet of the deceased. Then he immediately applied the brakes with full force, and made every possible effort to stop the train, at the same time continuing the danger signals. If the engineer and the other witnesses are to be believed, the engineer was neither reckless nor inhuman, but did all that an ordinarily prudent man would have done under like circumstances.
It appears from the testimony, and it is not unlikely or improbable, that quite a per cent, of the people who are daily walking along railroad tracks, and upon them, do not get out of the way or off the track when the whistle is .first sounded, and many do not step off the track until the train is pretty close to them. The engineer says he supposed the man must surely have heard the whistle, and would get off, as he had abundance of time in which to do so.
“ It is not an unusual thing for them to get off whenever they get ready, without looking around.”
It is not to be presumed that this engineer ran recklessly and inhumanly upon the deceased, knowing that he must kill him, and knowing that none of his signals had been heard. The presumption, under the circumstances, naturally would be that the whistles were heard and would be heeded.
Was there any testimony upon, the part of the plaintiff tending in any way to rebut this presumption in favor of the engineer and'the testimony for the defense?
Mr. Staal, the only witness for the plaintiff who saw the transaction, says that the train whistled a big half mile or three-quarters of á mile from Brandel.
“ Could not tell how many whistles they blowed; they kept blowing, not exactly the sharp whistles, but they kept on blowing.
“ Q. The whistling was continuous up until the time he struck the man?
“A. They might have stopped for a moment, but they kept on whistling.”
He swears that he noticed no slacking of the train until the man was struck, but that the train stopped and backed up after that. He testifies that Brandel had plenty of time to get off after the danger whistles were sounded.
I do not think the fact that Staal did not notice any slacking of the train until Brandel was struck sufficient to authorize any candid jury to find that no effort was made to stop the train as soon as the engineer was reasonably informed that Brandel took no heed, and was unconscious of the whistling, and was in danger. The evidence is overwhelming that such an effort was made, and the fact of the train stopping when it did corroborates the case made by the witnesses for the defense.
The deceased being negligent, the plaintiff could not recover, unless it was established that the engineer saw and understood the danger to him, and recklessly ran the train upon him without doing what he could to stop and avoid the injury. The evidence is to the contrary.
The judgment must therefore be affirmed.
The other Justices concurred. | [
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Sherwood, J.
In this case the respondent was convicted upon a complaint made before a justice of the peace of the city of Grand Haven, in the county of Ottawa, charging him with having on the ninth day of May, 1887, at the village of Spring Lake, in said county, —
“ Caught and taken fish with a fyke net, so called, it being a species of continuous net, in the waters of Grand river, in this State, and not being in Lakes Michigan, Superior, Huron, St. Clair, the St. Clair and Detroit rivers, Lake Brie, and the harbors connected with said lakes, and not being a private fish-pond, contrary to the form of the statute in such case made and provided.”
The cause was appealed to the Ottawa circuit, and tried with a jury before Judge Arnold, who, at the request of counsel for the people, directed a verdict against the respondent, who now asks a review in this Court.
The facts were all stipulated by counsel for the parties, and, as they stand in the record, are as follows:
“1. That the fishing alleged and set forth in the complaint and warrant herein, occurred within the corporate limits of the village of Spring Lake, on Grand river, in said county of Ottawa, and at the time and with the nets specified in said complaint and warrant; that said nets were set on the north side of said river; that, between the mouth of Grand river and the point where said nets were set, there are two bridges crossing said river, one a railroad bridge and the other a turnpike bridge, both being draw or swing bridges; that there are saw-mills located and operated on the banks of said river, east of the point where said nets were set, as follows: One at Nortonville, one at Spoonville, one at Eastmanville, and one at Jenisonville.
“2. That lake vessels are in the habit of going to Norton-ville and Spoonville for cargoes of lumber, and in going to said saw-mills said vessels are towed up; that the current of said river, at its mouth, runs out into Lake Michigan twenty-five rods beyond the piers; that the piers at the mouth of said river are about thirty-two hundred feet long, but do not extend up said river to the point where said nets were set, and do not extend within two miles of the same.
“ 3. That said draw or swing bridges are usually closed, and are only open when vessels pass tip and down said river.
“4. That there is a river steam-boat, known as the ‘Barrett,’ running between Grand Haven and Grand Rapids.
“ 5. That vessels do not sail up said river, but are towed up; that it is not the custom of vessels coming in from Lake Michigan to go further up the river to tie up or lay up than three-quarters of a mile from the mouth, unless they are towed up, or go up for freights, except said Barrett, and that does not come from Lake Michigan.
“ 6. That it is three miles from the mouth of said river to the point where the nets were set; that the officer who made the arrest in this case was legally authorized to do so, and that the defendant did the fishing’complained of.”
Upon submitting the foregoing stipulation of facts, counsel for respondent requested the court to direct a verdict in his favor, and stated the grounds for his motion as follows:
“1. That Grand river is a common-law harbor from its mouth to Grand Rapids, or, in other words, as far up the river as lake vessels may be navigated; and therefore the defendant is not guilty.
“2. That Grand river, to the extent and point and including the place where the fishing in this case took place, is a statutory harbor, and therefore the defendant is not guilty.
“3. That by reason of Act No. 5, Laws of 1883, the defendant was permitted to fish in the manner alleged, and therefore he is not guilty.
“4. That Act No. 10, Laws of 1885, is repealed by implication by Act No. 61 of the same year, and therefore the defendant is not guilty.
“5. That Act No. 10, Laws of 1885, is unconstitutional and void, and therefore the defendant is not guilty.”
The exception taken to the ruling of the court in direct ing the verdict against the respondent, instead of for him, raises the only question in the case.
A harbor, in its usual and ordinary sense, means an indentation in the coast of a lake, sea, or ocean, extending into the country in such manner as to form an inlet or bay, sufficiently narrow between the headlands to afford protection to vessels against the wind and storm upon the waters. Gould, Wat. 10; 4 Co. Inst. 140; Cable Co. v. Telegraph Co., 2 App. Cas. 394, 419; Insurance Co. v. Dunham, 11 Wall. 1; The Fame, 3 Mason, 147; De Lovio v. Boit, 2 Gall. 398; 1 Kent, Comm. 30.
It was in this sense that the Legislature used the word “harbor” in the statute applicable in this case, and this construction of the statute substantially decides the question raised.
The stipulation shows that it is not the custom of vessels from the lake to go further up the river than three-quarters of a mile from its mouth, unless in exceptional cases, and then they are towed up; that it is three miles from the mouth of the river to the point where the defendant’s nets were set when he was complained of in this case; and that it is not customary for boats from the lake to go up the river more than three-quarters of a mile to tie up or lay up.
I think it clearly appears that the fishing was done by the defendant in violation of the statute; that it was done in the river, where the prohibition of the statute applies.
The prosecution is under Act No. 10, Laws of 1885, p. 9, section 1 of which reads as follows:
“ That it shall not be lawful hereafter at any time to kill or destroy, or attempt to kill or destroy, any fish in any of the waters of the State of Michigan by the use or aid of dynamite, herculean or giant powder, or any other explosive substance or combination of substances, or by the use of India cockle, or any other substance or device which has a tendency to stupefy the fish; nor shall any person or persons Lili or attempt to kill, or injure by shooting or spearing, any fish, during the months of March, April, May, June, July, August, and September, in any of the waters of this State, except Lakes Michigan, Superior, Huron, St. Clair, the St. ■Clair and Detroit rivers, and Lake Erie, and the harbors connected with said lakes; nor shall any person catch or take any fish with seines, pound nets, trap nets, or any species of continuous nets, in any of the waters of the State, except Lakes Michigan, Superior, Huron, St. Clair, the St. Clair and Detroit rivers, and Lake Erie, and the harbors connected with said lakes,” etc.
Act No. 10 is not repealed by Act No. 61, Laws of 1885, as is supposed by counsel for the defendant.
Neither do I think the law of 1885 (Act No. 10) is in violation of the Constitution on account of any defect in its title. It sufficiently states what section of the statute is amended, but, if the title should be held defective, Act No. 208, Laws of 1879, would still remain, which fully covers the •case we are considering.
No city or village has the power, by ordinance or by-law, to make the general laws of the State inoperative. The power granted to the common council of Spring Lake is special. It has no power to establish harbor lines in Grand river. It cannot by ordinances encroach upon, the general laws of the State.
The ruling of the court must be affirmed, and the circuit •court is advised to proceed to judgment.
Ohamplin and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
Champlin, J.
Plaintiff recovered a verdict of $4,000 against the defendant for negligently causing the death of Henry B. Balch, under a charge of the circuit judge to the jury, relative to the measure of damages, as follows:
“ Now, you cannot tell, of course, in relation to that, — you cannot say with absolute certainty, — you cannot look ahead a moment. A man this moment in the prime and flush of health may the next moment be struck with the shaft of death, and pass out of existence. There has been evidence introduced here in relation to the expectancy of life. Now, this much is true; that, while we cannot tell how long any individual will live, yet we do know that, out of a thousand or ten thousand men who start at the age of 21, about a certain proportion will live to the age of 25, about a certain proportion will live to be 30, and a portion to 35, and so on up to 90 and 100 years. That is the general average, and from that tables have been prepared showing the average expectancy of human life. If it is for a man, say, 64 years old, the average years of life left to a man of 64 would be about a certain number of years, — I think there is evidence tending to show in the table here introduced that it is about 11 and 68-100 years.
“ There has been evidence given tending to show that would have been the average of life left to a man of 64 years. Of course, some might not live so long, and some might live longer; but that would be ihe average.
“Now, you have the testimony as to what this man’s business was, as to the manner in which his wife and child lived, about what support was provided them. There is evidence tending to show the payment of certain sums of money, and the providing of a comfortable support. It is for you to say wl at that would amount to each year, and then consider the t n.e that the man would have to live; consider tie effect that advancing years w ould have upon his ability and capacity to earn the money which he had heretofore been earning in providing for his family, considering that th's money would be paid at intervals of from one year to another; estimate the present value of that money, of what he would probably have contributed to his family during the t:me he probably would have lived, — and that sum the plaintiff will be entitled to, if you should find that the plaintiff is entitled to recover anything at all, provided you find that the wife would probably have lived as long as her husband, Mr. Balch. I think there is evidence tending to show her present age is about 54, and his about 64.
“ By Mr. Campbell. Does your honor care to make any suggestion as to the method of getting at the present value?
“ Court. You can figure it upon that basis of four and one-half per cent., gentlemen, if you wish; that is to say, gentlemen, you will understand that if you should find that he contributed and earned 8300 a year or 8400 a year, that $400 a year ten years from now would not be worth so much as 1400 now in cash, — and defendant’s counsel suggests you to figure the present value at 4$ per cent.
“Mr. Campbell. No, I didn’t make that suggestion; I say "that- is—
“ Court. Well, gentlemen, figure the legal rate 7 per cent.”
We think the court misled the jury as to the basis of their calculations, and then left them in the dark as to the method of ascertaining the present value of money which plaintiff should recover. The only testimony as to the age of the deceased, for whose death action was brought was that of his son, who placed his age at 65 years at the time of his death. This made some difference in the expectancy of the life for which they were instructed to allow. Again, the amount of the contributions of the deceased towards the support of his wife and minor child was placed by the same witness at between two and three hundred dollars annually, and he nowhere states it above the latter sum. The language of the court was calculated to mislead the jury, both as to the age of the deceased, and his contributions to his family. The court should, after laying down such a basis for estimating damages, have instructed them as to the method of getting at the present value of what he indicated they could find. That they failed to comprehend his instructions is evident from the verdict they returned. If he had told them that they should find the amount of the annual contributions which deceased had made for the support and maintenance of his family, which, under the testimony, could not exceed $300, and compute and ascertain the present worth of that sum for one year, and for two years, and so on up to and including eleven years, and add these sums together, it would represent the present worth of the amount for which they should return their verdict. It is plain that such verdict would not have exceeded $2,4C0.' It is difficult to account for the verdict the jury did return, unless, instead of finding the present worth of the sums, they found a gross sum for plaintiff, and added thereto interest at 7 per cent.
It was said in Cooper v. Railway Co., 66 Mich. 271, that—
“The statute authorizes the jury, in every case of this Mud, to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered. Under this statute the jury are not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted. They cannot give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances. The statute gives the right to damages, but it has been held, with rare exceptions, that they must be confined to those damages which are capable of being measured by a pecuniary standard.”
Many other errors are assigned, but, as the more important of them will not be likely to recur upon a retrial, it is unnecessary to notice them here.
The judgment must be reversed, and a new trial ordered.
Morse, J., concurred with Champlin, J.
Sherwood, J. I concur in the reversal.
Campbell C. J., did not sit. | [
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Sherwood, J.
The plaintiff sued the defendants in juslice’s court in assumpsit on the following promissory note:
“ $50. Port Huron, Mich., January 17, 1884.
“ One year after dale we promise to pay to the order of Robert S. Rawlings fifty dollars, at the First National Bank, Port Huron, Mich., value received, with interest at 7 per cent.
“Henry Cole.
his
"Chas. X Cole.” mark.
Henry Cole pleaded the general issue. The defendant •Charles Cole filed the plea of the general issue, and an affi davit denying his execution of the note, under oath; also-gave notice that, if he ever did sign the note, he did so as an indorser. Upon these pleadings the cause was tried before the justice, who rendered judgment for the plaintiff for-$57.15, and $10 costs. On the trial in the circuit before a jury, the verdict was for $60.34, in favor of plaintiff, and from the judgment rendered thereon the defendant ChaflesCole brings error.
Upon the trial, after the plaintiff had introduced his proofs and rested, the defendant offered to show that he signed the note as surety, and that he was released from any liability on said note by reason of the contract made by the plaintiff with the defendant Henry Cole to extend the time of payment, of said note, without the consent of the surety, one year. To the introduction of this testimony the plaintiff objected, on the ground that no notice had been given of this defense, and that the testimony was inadmissible under the general issue. The court sustained the objection, and counsel for defendant excepted.
This ruling includes the substance of all the assignments, of error in the case.
The circuit judge was correct in his ruling. Under the-common-law rule, this defense must have -been specially pleaded before it could be introduced in evidence, and the notice under our practice is substituted for the special plea. How. Stat. § 7363; Archb. Pl. 179; Rosenbury v. Angell, 6 Mich. 508.
The general issue is a denial of all the material facts and allegations contained in the plaintiff’s declaration. The-material matters contained in a declaration are those facts and allegations necessary to be proved in making out the plaintiff’s case.
The testimony offered was in no sense a denial of the matters necessary to be proved by the plaintiff in making out a. liability on the part of. the defendant.
The proof offered was for the purpose of establishing another and different contract from the one declared upon, made at a different time and place, and between different persons. The plea and notice should have informed the plaintiff that such a defense was intended, that he might be prepared to meet it, if untrue. Miller v. Finley, 26 Mich. 249; Wheeler v. Curtis, 11 Wend. 654; Bank of Auburn v. Weed, 19 Johns. 300; Hollister v. Bender, 1 Hill, 150; 1 Chit. Pl. 506, and cases cited; Taylor v. Hilary, 1 Cromp. M. & R. 741; Taylor v. Hilary, 3 Dowl. 461; Harden v. Clifton, 1 Gale & D. 22.
There was no error in the ruling of the court, and the judgment must be affirmed.
Champlin and Morse, JJ., concurred.
Campbell, O. J., did not sit. | [
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Morse, J.
The respondent was convicted, in the recorder’» court for the city of Detroit, of selling beer at retail without paying the tax in full in advance to the county treasurer, a» required by How. Stat. § 1281.
The respondent is a brewer, and manufactures beer at the corner of Sherman street and St. Aubin avenue, in the city of Detroit. She sells on the premises where the beer is brewed, at wholesale and retail, beer of her own manufacture. She had paid the manufacturer’s tax, but no wholesale or retail tax.
It is claimed that, as the payment of a manufacturer’s tax exempts the person so paying from the payment of the wholesale tax, it also exempts her from paying the retail tax, as the amount of the tax for selling at wholesale is the same as the tax for selling at wholesale and retail.
The statute as to the manufacture and sale of malt liquors provides the following taxes:
1. Upon the manufacture, if less than 1,500 barrels, $65 per annum.
2. Selling at wholesale, $200.
3. Selling at retail, $200.
4. Selling at wholesale and retail, $200.
It is further provided by the section cited that—
“No person paying a manufacturer’s tax on brewed or malt liquors under this act shall be liable to pay a wholesale dealer’s tax on the same.”
The argument seems to be in the brief of respondent’s counsel that because the payment of the manufacturer’s tax excuses the payment of the wholesale tax, and the wholesale tax being the same in amount as the tax for selling at wholesale and retail, the tax for selling at wholesale and retail is in effect a wholesale dealer’s tax.
We do not so consider it. The Legislature evidently intended that the manufacturer might sell at wholesale as an adjunct of his business without paying an additional tax. But it was not intended that he might also sell at retail, which is not a necessary part of the business of manufacturing.
If the intention had been different the Legislature would, in all probability, have exempted the manufacturer from paying the wholesale and retail tax in so many words.
We must take the law as it reads. It' does not authorize the manufacturer to sell at retail, unless either the retail or the wholesale and retail tax is paid, to wit, $300.
Sherwood and Champlin, J J., concurred.
Campbell, C. J., did not sit. | [
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Campbell, O. J.
Plaintiff, having purchased on execution the equity of redemption of certain property in Shiawassee county owned by defendant Runnels, and previously mort gaged to Mrs. Eva Passmore, brought statutory proceedings before a commissioner to obtain possession, and got judgment of possession, which was appealed, and finally came from the circuit court of Shiawassee county to this Court, where it was affirmed. The present suit is on the appeal-bond for rent during the time plaintiff was kept out.
It was the usual statutory bond, which provided that,—
“If the above-bounden Carlton K. Eunnels shall prosecute his said appeal with all due diligence to a decision in said circuit court, and, if a judgment be-rendered against him in the said circuit court, shall pay the amount of such judgment, with interest thereon; and that, if the said Estey Manufacturing Company obtain restitution of said premises in said suit, the said Carlton K. Eunnels will forthwith pay all rent due or to become due the said Estey Manufacturing Company for the said premises heretofore and in the complaint in this cause described, up till the time the said Estey Manufacturing Company shall obtain possession thereof, together with costs of suit in prosecuting said complaint and obtaining restitution of said premises; and, in case the said appeal shall be discontinued or dismissed, if the said Carlton K. Eunnels shall pay the amount of judgment rendered against him in said cause, and such rent as above mentioned, and all costs, with interest thereon, — then this obligation to be void,” etc.
The declaration sets out the proceedings resulting in the affirming to this Court of the judgment of restitution, and the costs adjudged by the various courts, but that the mortgage to Mrs. Passmore wa3 foreclosed, and the equity of redemption expired May 11, 1884, pe'nding the appellate proceedings, thereby terminating plaintiff’s right. It sets out as a breach the non-payment of the judgments for costs, and the non-payment of rent to the time when plaintiff’s title ended.
This declaration was demurred to, on the ground that no action would lie upon it without recovery of actual restitution, which was rendered impossible by the expiration of plaintiff’s title. The circuit court sustained the demurrer upon the supposed authority of Delashman v. Berry, 21 Mich. 516.
The bond is not made to depend at all on any question of restitution, except as to rent. It is absolute to pay any judgment for money, with interest, and plaintiff could at all events recover the costs adjudged in its favor. This would necessarily prevent the .declaration from being demurrable; for, if any recovery could be had for aDy sum, the action lies on the bond, and could stand for such breaches as are made out.
But, in our opinion, the rent is also recoverable. The case of Delashman v. Berry .was one where (as pointed out in Holcomb v. Bonnell, 32 Mich. 9) no reason was shown why plaintiff did not sue out and enforce his writ of possession, and it is evident that the time during which rent was recoverable might depend on how long he was actually kept out by the defendant. But the present ease is precisely similar in principle to Holcomb v. Bonnell, where it was expressly held that, if plaintiff’s right to possession ended before restitution could be had by the legal proceedings, the right of recovery existed for rent during his term. If this were not so, a defendant could always defeat plaintiff by going into an appellate court, whether prevailing on appeal or not. This, as shown in Holcomb v. Bonnell, would defeat the purposes of the statute requiring security for rent. As the latter decision is in point, we need not discuss the matter further.
Judgment must be reversed, with costs, and the demurrer overruled, and defendants plead to the declaration within the time allowed by rulo, or be defaulted.
The other J us tices concurred.
See Estey Manufacturing Co. v. Runnels, 55 Mich. 130. | [
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] |
Morse, C. J.
The complainant was granted a divorce from defendant in the Allegan circuit court in chancery on the ground of extreme Cruelty. .
The parties are Hollanders. The complainant, a young girl of 20, in delicate health, married the defend ant, a well-to-do farmer, 40 years of age, with a family of six children by former marriages. The cruelty consisted in the forcing of his wife to do more work than she was capable of doing in her state of health, and for that reason she was compelled to leave him. Before marriage he was made acquainted with her condition, and promised, to hire a girl to do the heavy work. After marriage he refused to fulfill his promise in this respect. The record shows no brutality or unkindness, except in regard to his insistence that his wife should perform household and other labor when she was not able to do so. His conduct seems to have been inspired by greed, and it is shown by her testimony that he told complainant that he was glad the baby was dead, because now she could work instead of holding the baby in her lap. He required her also to do the family washing but a few days after the birth of her child. These things are •denied by him, and it may be that the charges against him have been exaggerated by some of the witnesses. It is evident, however, that he has been extremely cruel in his demands upon the complainant for labor, and that his chief appreciation of a wife as a helpmate is her willingness and capacity for hard work.
The decree of the court below is affirmed, with costs of this Court, and an additional solicitor’s fee of $70.
The other Justices concurred. | [
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] |
Long, J.
This action was brought to recover upon a promissory note given July 3, 1882, and made payable to the order of James M. Ashley, president of the Toledo, Ann Arbor & Grand Trunk Railway Company. It was given for the sum of $9,120, and was signed by the Toledo, Ann Arbor & Grand Trunk Railway Company, by B. E. Jarvis, auditor. It was indorsed by J. M. Ashley, president, and J. M. Ashley, payable to the order of T. D. Dewey, and by Dewey indorsed to the plaintiffs in this suit. Several payments were indorsed upon the note in 1883 and 1884. The amount remaining due and unpaid at the time of the trial was conceded to be $4,966.76, and for which amount the plaintiffs had verdict and judgment in the court below. Defendant brings the case here by writ of error.
The plaintiffs, to make their case, in the first instance proved the execution of the note by the defendant, and its indorsement to Dewey or order by the payee, by a stipulation in the case made by the attorneys of the parties, and the indorsement of Dewey to the plaintiffs. The stipulation is as follows:
“In this cause it is stipulated that the same be con* tinued over the December term of 1890 without costs, and on the part of the defendant the execution of the note declared upon, a copy of which is given in the declaration, by the Toledo, Ann Arbor & Grand Trunk Railway Company, as maker, and its indorsement by the payee, are admitted, so that plaintiffs need not be put to proof of such execution and indorsement, other than by-producing the note in evidence; but no defense to the note is waived.” '
The plea of the defendant is the general issue, and no affidavit was filed denying the execution of the note.
The position of the defendant on the trial was:
1. That the agreements, which are in writing, and which must be construed by the court, show that the transfer of stock for which the note was given was made to James M. Ashley, and the debt represented by such note was his debt; and the note, if the note of the company, was to secure the debt of James M. Ashley, and thereby became accommodation paper, and the act was ultra vires and void.
2. That it was necessary to prove the authority and power of the auditor to sign the note before the same was admissible in evidence, as the auditor had no such authority and power unless authorized by a resolution of the board of directors, and that the stipulation did not waive the necessity of making the proof.
3. That even if the sale and transfer of the stock of the Owosso & Northwestern Railroad Company, for the-payment of which the note was given, was to the Toledo, Ann Arbor & Grand Trunk Railway Company, and for its benefit, its purchase was an act the railway company had no authority and power to do, and was ultra vires, and the note given therefor was void.
It appears that the note was given in payment of a portion of the capital stock of the Owosso & Northwestern . Eailroad Company, which was a company organized to build a railroad from Owosso northwest to Frankfort, this State. The Toledo, Ann Arbor & Grand Trunk Eailway Company was organized to build a railroad from Ann Arbor to Pontiac. The Toledo, Ann Arbor & North Michigan Eailway Company was organized after the note in suit was given, to wit, October 28, 1882, to build a road from Owosso to St. Louis. On May 19, 1884, the last two named railroad companies were consolidated, in pursuance of the statute, under the name of the latter company. About the time the note was given some other papers were executed between the parties, which relate to the note, and which were offered by defendant's counsel, and were admitted in evidence by the trial court, as relating to the question of the consideration for which the note was given.
These papers were:
1. A proposition on the part of Mr. Dewey to sell to J. M. Ashley, his agents or assigns all the stock held by Dewey in the Owosso & Northwestern Eailroad Company, which was two-thirds or more of all the stock, with a guarantee that the road was free from debt, for the sum of $12,180, to he paid, one-fourth in 90 days, and the balance in one year, to be secured by the note of the Toledo, Ann Arbor & Grand Trunk Eailway Company, indorsed by Ashley, with interest at 6 per cent., the note to be secured by a transfer of a certain quantity of iron rails, to be delivered at Owosso. The condition was also expressed that Ashley was to build the road from Owosso to Alma in two years if $65,000 of aid was raised on the line between those points. This paper was dated April 4, 1882.
2. An acceptance of that proposition, signed by J. M. Ashley, Jr., and J. M. Ashley by J. M. Ashley, Jr., his attorney. In this acceptance it is recited that the offer of Dewey has been accepted by J. M. Ashley, and in pursuance of which Ashley has paid to Dewey the sum of $3,060, and that he therein agrees for the railroad company of which he is president, to wit, the Toledo, Ann Arbor & Grand Trunk Railway Company, the owner of the iron rails, to secure the balance; “which arrangements, payments, and agreements have been made by J. M. Ashley, Jr., who in said business represents himself to be the attorney of said company, and authorized by said company and its president to make this contract, and to sign his name thereto; and it is further agreed that on failure to comply with the terms of said offer and proposition the stock which has this day been assigned by said Dewey to James M. Ashley, Jr., as trustee, shall be reassigned to said Dewey: Provided, that the failure to build the road in the time mentioned shall not work any forfeiture of the contract, if the work is being in good faith carried on.”
J. M. Ashley, Jr., on July 7, 1882, made another paper on behalf of the railroad company, and signed it in the name of the company as attorney for it, to the effect that a chattel mortgage should be given upon these iron rails to secure the note. On August 16 following the chattel mortgage was given, signed by J. M. Ashley, in which the indebtedness of the Toledo, Ann Arbor & Grand Trunk Railway Company upon the note was recited.
It was then shown upon the part of the plaintiffs that certain of the payments made and indorsed on the note were make through the First National Bank of Owosso by J. M. Ashley, Jr., by Owosso city bonds issued to the Toledo, Ann Arbor & Grand Trunk Railway Company, and that certain payments were made upon the note from the funds of the Toledo, Ann Arbor & North Michigan Railway Company, and paid by its checks.
At the close of the testimony the defendant, by its counsel, requested the court to charge the jury:
“1. That the note sued upon was given in pursuance of the agreement of April 4, 1882, by which Thomas D. Dewey agreed to transfer certain shares in the Owosso & Northwestern Railroad Company to James M. Ashley, as shown by the undisputed testimony.
‘‘2. That the note so given was for the purpose of enabling James M. Ashley to purchase said stock.
“ 3. That a railway company has no right to give a note obligating itself to pay for property acquired by another.
“ 4. That this defendant is not liable, as between itself and Thomas D. Dewey, on its note, as above described.
“ 5. That notice of the character of this note herein sued upon, if possessed by Dewey, must also be attributed to the plaintiffs, Dewey & Stewart, partners.
“6. That, under the evidence in this case, plaintiffs cannot recover.”
The plaintiffs claimed upon the trial, and that claim is made here:
1. That the note sued upon is the note of the Toledo, Ann Arbor & Grand Trunk Railway Company, and not the note of Ashley, and that the railway company is the maker and principal obligor, and not merely an accommodation maker.
2. That the note was given for stock which the railway company actually had, and that the said railway actually used a portion of the old road-bed of the Owosso & Northwestern Railroad Company in the building of its road from Owosso to the northwest, and had all the benefits which the majority of the stock gave in that company.
3. That the giving of the note upon the purchase of such stock, and acquiring the rights of such road, was an act which the company could do, as it was not a parallel or competing line, under the provisions of section 3403, How. Stat., and that by virtue of the provisions of such statute the defendant, as successor of the Toledo, Ann Arbor & Grand Trunk Railway Company, became liable for the debt.
4. That the defendant, not having filed an affidavit denying the execution of the note, by the stipulation admitted its due execution, and admitted the indorsement of Mr. Ashley.
The court directed the jury, in his general charge, in substance:
1. That the stipulation admitted the signature of Mr, Jarvis and of the road, but did not admit the liability of the company.
2. That it was a question for the jury to determine whether the sale of this stock was made to the Toledo, Ann Arbor & Grand Trunk Bailway Company or to Mr. Ashley, or to Mr. Ashley as trustee in trust for the railway company; that if made to the company, or to Mr. Ashley in trust for it, and the railway company had the use and benefit of it, together with the franchise and the property represented by the stock, the contract would not be ultra viresj that the railway company had the right, for the purpose of building its road, to obtain the right •of way, and to make the purchase for that purpose.
3. The court refused to giYe defendant's first request to •charge, and modified the second request by adding, "but whether for his own use, or for the corporation of which he was president, you are to determine.'' The court also modified the third request by saying: "That is true, gentlemen, unless you find that the purchase was made for its use, and the company got the use of it, with full knowledge of its officers of the method of its acquisition, and the purpose for which it was acquired.” The fourth and sixth requests were refused, and the court modified the fifth by adding, "that is, if you find that the note was only accommodation paper.” The court also instructed the jury as requested, "that there is a difference between an act unauthorized, and one beyond the power or capacity •of the party to authorize or make.”
4. The court thereupon directed the jury: "If it is, true that a corporation cannot make a note for anything •connected with its business, we ought to have some direct adjudication on it. It acts by its officers, and the responsibilities are different. Some are weighty, and some are trifling, dependent entirely upon the duty which the officer has to perform. But it would seem strange if a railroad company had a smash-up of their cars, and they could not, by their president or attorney or agent, look after their business, and purchase cars and put them upon the road, so as to continue the public travel uninterruptedly. So if .the rails break out, or the ties were washed out, it would be a strange doctrine that the board of directors would all have to be called and pass resolutions, and the cars stand still until the board of directors should say, as Joshua did to the sun, that it might move on. I don't understand that to be the rule. I understand there are certain powers that may be exercised from the time they conceive the idea of procuring the right of way, such as may be necessary to successfully construct, maintain, and operate their road; and the power, although not expressly granted, in a case of accident, to buy iron or ties or rails; the power to maintain, power to construct, and power to operate the road." Speaking of the stipulation, the court stated to the jury that by its terms the making of the note by the railroad company and its indorsement by Mr. Ashley were admitted, sq that the plaintiffs need not be put to the proof of execution and indorsement, other than by producing the note, but no defense to the note was waived.
The assignments of error are:
1. That the court erred in overruling the objection to the introduction of the note in evidence, because the note shows upon its face that it was executed by B. F. Jarvis, auditor; and the power and authority of the auditor are denied, unless authorized by resolution of the board of directors.
2. That the court erred in admitting the testimony of Mr. Dewey that J. M. Ashley, Jr., represented that he was making the purchase for the Toledo, Ann Arbor & Grand Trunk Bailway Company.
3. That the court erred in admitting testimony tending to show that the payments upon the note were made by the defendant company, and that the Toledo, Ann Arbor & Grand Trunk Bailway Company used the old road-bed of the Owosso & Northwestern Bailroad Company.
The other assignments of error relate to the refusal of the court to give the defendant's requests to charge, and the modifications of those given, as well as to the charge as given by the court.
We have carefully examined the whole case, and find no error in the record.
The court was not in error in admitting the note in evidence, under the proofs made. No affidavit was filed, denying its execution; and, under Circuit Court Buie No. 79, the plaintiffs were not put to proof of its execution. The failure to file this affidavit under the plea of the general issue was an admission that the Toledo, Ann Arbor & Grand Trunk Railway Company, as well as B. F. Jarvis, signed the note. The rule provides that—
“ Upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant unless the defendant, or some one in his behalf, shall file and serve a copy of an affidavit denying the same.”
It is contended by plaintiffs’ counsel that the effect of this rule is not only to admit the execution of the instrument sued upon, but also to admit that the officer of the company, signing the note, was authorized by the company to sign it, so as to make his act the act of the company itself; that the rule does not apply alone to the hand-writing of the defendant, but that it goes further, and makes the admission cover the execution of the. instrument, — and counsel cite in support of this proposition the following cases: Pegg v. Bidleman, 5 Mich. 26; Hoard v. Little, 7 Id. 468; Lobdell v. Bank, 33 Id. 408; Curran v. Rogers, 35 Id. 221; Jacobson v. Miller, 41 Id,. 90; Chicago & N. E. R. R. Co. v. Edson, Id. 673,
We need not stop to consider the question raised as to whether the failure to file the affidavit under this rule amounts to an admission that the signing of the note was authorized by the company, so that the act of Mr. Jarvis, in signing it, was the act of the company, as that question was submitted to the jury under the charge of the court, and the fact found in favor of the plaintiffs. It was also found as a fact by the jury that the company was not merely an accommodation maker for Ashley; but under proper instruction from the court, and upon a fair submission of the question, the jury found that it was the note of the company, duly executed by it, by its officer empowered to do so. There was some evidence to go to the jury on that question. The fact that the contracts were made in behalf of the company, and in its name, and that the company took and used the property acquired by the giving of the note, has a tendency to show that it was the note of the company; and the court expressly stated to the jury that they should consider the question whether the purchase was made for the use of the company, and whether the company got the use of the property, with full knowledge of its officers of the method of its acquisition, and the purposes for which it was acquired.
The court was not in error in stating to the jury that the company had the right, for the purpose of building its road, to obtain the right of way and to make the purchase.
Bow. Stat. § 3403, provides:
'“It shall be lawful for any railroad company in this State, which shall have entered in good faith upon the work of constructing its road, and shall have become unable to complete the construction of the same, or of any part thereof, to sell and convey the whole or any part of its road so partially completed, together with the rights and franchises connected therewith, to any other railroad company or corporation of this State, not having the same terminal points, and not being a competing line: jProvided, that, at any general or special meeting duly called for that purpose, the stockholders carrying ¡[owning] two-thirds of the stock of said company shall ■consent thereto: And provided, further, that the company ■or corporation so purchasing shall hold such property ;and franchise subject to all the obligations and duties, and with all the rights and privileges, prescribed by the general railroad law of this State.”
The Owosso & Northwestern Railroad Company was organized to build a railroad from Owosso northwest to Frankfort. The Toledo, Ann Arbor & Grand Trunk Eailway Company was organized to build from Ann Arbor to Pontiac. Tbe roads, it will be seen, did not have tbe same terminal points, and tbe sale was made by one owning over two-thirds of the capital stock. No part of the Owosso & Northwestern Eailroad had at that time been completed, but work had been entered upon, and a portion of the grading done. We think the sale •of the stock of this road to the Toledo, Ann Arbor & Grand Trunk Eailway Company was authorized by this statute, and did not come within the inhibition of article 19a, section 2, of the Constitution. It was not a parallel line, and was not done for the purpose of consolidation.
But even if the Toledo, Ann Arbor & Grand Trunk Eailway Company had no power, under the statute, to enter into this contract of purchase, and give the note in controversy for that purpose, yet the purchase and the giving of the note, and the transactions connected therewith, could not now be questioned by the company; and under the statute, the defendant company stands in no better position, as it could only take, by consolidation under the statute, subject to the liabilities of the other company. It appears from the findings of the jury, upon a fair submission of that question, that the Toledo, Ann Arbor & Grand Trunk Eailway Company made the purchase of the stock of the Owosso & Northwestern Eailroad Company for the purpose of a right of way, and appropriated the property so purchased. The note in question was given to Mr. Dewey in pursuance of the contract made with him for the transfer of his stock; .and he, on his part, has fulfilled the contract by transferring the stock to James M. Ashley, Jr., as trustee. The contract is completely executed on his part, and the only thing remaining is the payment of the money in fulfillment of the contract on the part of the company. Under these circumstances the defense that the giving of the note is ultra vires will not be permitted. 2 Mor. Priv. Corp. §§ 650, 653, 658, 684, 689, 692, 693, 696, 698, 700, 703; Arms Co. v. Barlow, 63 N. Y. 62; Arnot v. Railway Co., 67 Id. 315; Board v. Railway Co., 47 Ind. 407; Railroad Co. v. Transportation Co., 83 Penn. St. 160; Wright v. Line Co., 101 Id. 207; Water Co. v. Fluming Co., 22 Cal. 621; Raft Co. v. Roach, 97 N. Y. 378; Day v. Buggy Co., 57 Mich. 151; Bradley v. Ballard, 55 Ill. 419; Brewing Co. v. Flannery (Ill.), 27 N. E. Rep. 287; Bushnell v. Bank, 10 Hun, 378; Railroad Co. v. Railroad Co. (N. H.), 20 Atl. Rep. 383; Garson City Sav. Bank v. Elevator Co., 90 Mich. 550, and cases there cited.
The rule recognized by these cases is summed up by Morawetz on Corporations (sections 650, 653, 658) as follows:
“It does not follow that, because the exercise of corporate powers is prohibited by the common law, any corporate acts performed in violation of this prohibition will not be recognized by the law as corporate acts. * * * Inasmuch as the prohibition of the common law against the unauthorized exercise of corporate power is based upon grounds of public policy alone, it seems but reasonable that the effect of this prohibition upon the legal validity of corporate acts should be determined by the requirements of public policy; * * * and, after a contract made by a corporation in excess of its chartered powers has been wholly performed by either party, * * * it cannot be said to be in the interest of public policy to deny the innocent party relief. * * * General statutory prohibitions against any corporate act not included in the powers conferred by the charter are merely declaratory of the general common-law prohibition against any exercise of corporate powers which has not been authorized by the legislature; and there is no reason for supposing that the legislature, in enacting such a prohibí (¡ion, intends to give it any greater force or effect than the common-law rule.”
In Arms Co. v. Barlow, 63 N. Y. 69, it was said:
“The plea of ultra vires should not, as a general rule, prevail, whether it is interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong.”
The last proposition was quoted with approval in Carson City Sav. Bank v. Elevator Co., 90 Mich. 550.
The doctrine applies with great force in the present case. The Toledo, Ann Arbor & Grand Trunk Railway Company has acquired all the property and franchises sold by Mr. Dewey. It has put the roadbed to use. It has appropriated all that was acquired for which the note was given. The defendant company succeeded to all its rights, privileges, and franchises; and, under the statute by which it was authorized to consolidate, it is subjected to all its liabilities. It has reaped the benefit of all that Dewey sold, and now attempts to interpose the plea that it was beyond the power of the Toledo, Ann Arbor & Grand Trunk Railway Company to make the contract to acquire the property of which it, as a railroad company, is in the use and enjoyment. The court below was correct in its ruling, and might very properly have instructed the jury, upon this branch of the case, that the defendant company was estopped, under the circumstances, from pleading this want of power.
As this must dispose of many questions raised upon the requests to charge, and the modifications of those given, as well as to the general charge of the court, we need not discuss them. The court below laid before the jury, for their determination, all of the questions of fact involved, in a very clear manner, and fairly and carefully guarded every right to which the defendant company was entitled. •
We find no error in the record, and the judgment must be affirmed, with costs.
The other Justices concurred. | [
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Montgomery, J.
This is certiorari to the respondent, to bring before us the action taken .by the board in dismissing the relator from the police force. Charges were brought against the plaintiff of conduct immoral, and unbecoming an officer, and the action of the board, was reviewed by this Court by mandamus, and is reported in 84 Mich. 558. The dismissal was in that case set aside; but it was further stated that the determination would not prevent further proceedings, under proper charges and specifications. Following upon this opinion further charges were preferred against the plaintiff, a hearing was had, and he was found guilty thereof, and •dismissed from the service.
The principal ground relied on is that the offenses of which he was convicted were beyond the jurisdiction of the board, constituting, as they did, charges of felonies; •and it is said that it does not lie with the board to adjudge him guilty of a felony simply because he is a member of the police force, and subject in such capacity to its jurisdiction.
We cannot assent to this view. If the question of the plaintiff's, fitness for the office of patrolman involved an inquiry as to whether he was or was not guilty of a criminal offense, to the extent that is necessary to determine the question of fitness, the board had the right to enter upon the trial of the question of his guilt. Of course, the punishment could not go beyond a dismissal from the service, nor would the determination of the board be binding in any other proceeding; but we are not prepared to hold that the plaintiff could shield himself from dismissal by averring that the charges against him were too serious for the board to consider. If this were so, the more unfit the •officer the less subject to discipline by the board would he be. Such could not have been the legislative intent in conferring the power which was conferred upon the board.
The board having acquired jurisdiction, and having acted lawfully, it is not within the power of this Court to review the decision reached upon the merits.
The writ of certiorari will be quashed, with costs.
The other Justices concurred. | [
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Grant, J.
Proceedings to condemn the right of way for the boulevard across the defendants’ tracks. These cases are practically ruled by Commissioners of Parks, etc., v. Railroad Co., 90 Mich. 385.
The rule of damages in these cases is declared by this Court to be that a railroad company may recover—
“ For injury to its track, right of way, and franchise, occasioned by the crossing, and which may be properly considered as the natural, necessary, and approximate cause thereof.” In re First Street, 66 Mich. 55, and authorities there cited.
There is not one rule for railroad companies and another for private land-owners. When a railroad company condemns land it must pay not only for the value of the land taken, but for the damage caused to the adjoining land. No railroad company can run its road along a public highway without first instituting condemnation proceedings, and paying the owners of lands abutting on the highway such damages as shall be awarded to them. Riedinger v. Railroad Co., 62 Mich. 41. When the lands of railroad companies are condemned for a public use, they are entitled to the same measure of damages. If, therefore, their adjoining land is rendered less valuable by the location of a public highway, or another railroad across its property, there is no reason why they should not recover compensation therefor.
Situated near this crossing is a small tract of land used for warehouse purposes. It is insisted by the respondents that, by reason of this crossing, this land, with the warehouse thereon, is rendered less available and less valuable for the purposes for which it was constructed and used. This was a proper element of damage, and should have been submitted to the jury.
We see no reason to change the rule laid down in Commissioners of Parks, etc., v. Railroad Co., supra, in regard to damages for the erection and maintenance of gates or for flagmen. If the jury shall be satisfied from the evidence that either are necessary for the protection of the public, the respondents are entitled to compensation therefor. This in no wise interferes with the police power conferred upon the Railroad Commissioner to interfere when such crossings shall have become dangerous by reason of the frequency of travel along the highways. Whether the erection and maintenance of gates or the employment of flagmen is at the time of condemnation necessary for the proper protection of the company and the public is a question of fact for the jury.
The confirmation of the award of the jury must be set aside, and the case remanded for a new trial.
The other Justices concurred. | [
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Morse, C. J.
Plaintiff sued defendant for carnally debauching and knowing plaintiff's wife, Rhoda Reynolds, and alienating and destroying her affection for her husband. On the trial plaintiff offered his wife as a witness in his behalf. Upon • objection by defendant's counsel, the court below held that she was not a competent witness. The plaintiff also offered in evidence a-letter written to him by his said wife, previous to the wrongful acts of the’ defendant, to show the relation that,-/then existed between plaintiff and wife. This offer was rejected. No further evidence was offered by plaintiff, and the court directed a verdict for the defendant.
The direction was right. The case is ruled by Mathews v. Yerex, 48 Mich. 361, where it is held that the wife is not a competent witness for her husband in a suit of this kind. See, also, How. Stat. § 7546.
It is not necessary to determine whether the letter was admissible. It could have no force in the case, standing alone, without any proof of the criminal conversation.
The judgment is affirmed, with costs.
Long, Grant, and Montgomery, JJ., concurred. McGrath, J., took no part in the decision. | [
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Long, J.
March 14, 1890, plaintiff boarded one of defendant’s cars on Gratiot avenue, intending to ride easterly as far as Mitchell avenue. He told the conductor on entering the car to let him off at that point. He took a seat inside the car. The conductor rang the bell as the car approached Mitchell avenue, and opened the door of the car. The plaintiff was carrying upon his left arm a package weighing about 15 pounds, and, as the car door opened, got up as the car was stopping, went out upon the platform, and thence upon the step, upon the right-hand side, at the rear.
The plaintiff’s contention upon the trial was that he was carried across to the east side of Mitchell avenue, and there the car came to' a stop, and- as he attempted to step down from the step of the car, where he was standing; the conductor again rang the signal bell, and the car suddenly started forward, throwing him to the ground and breaking his leg. The plaintiff called a witness who testified that he was a truck driver, and on the day in question was near the place where the plaintiff fell, but that he did not see the accident. He saw the plaintiff trying to get up, and at that time plaintiff was on the east side of Mitchell avenue, and he took him upon his truck and carried him home. The defendant’s testimony tended to show that the plaintiff, while the car was yet in motion, stepped off from it on the west side of Mitchell avenue, and that the point where he fell was on the west side of that avenue. The conductor testified that he pulled the bell for the car to stop, and plaintiff came out and attempted to alight from the car while it was slowing down, before it came to a stop,— getting down from the car on the west side of Mitchell avenue, — and that the car did not actually stop until it got to the cross-walk on the east side; that' he told plaintiff the car would stop for him. This testimony is corroborated by several other witnesses. It was also claimed by the defendant that the plaintiff, carrying this package upon his left arm, in stepping down from the car when it was in motion, failed to take hold of the railing attached to the platform to assist himself in alighting.
The court charged the jury, among other things:
“If you find in this case that while the plaintiff was attempting to alight from the car the conductor rang the bell, and the car started up, and the accident occurred in that manner, then the plaintiff would be entitled to recover, because it would amount to actionable negligence on the part of the conductor to ring the bell while the plaintiff was in the act of alighting. There can be no question about that.”
The court also charged the jury:
“If you believe the plaintiff's theory, and believe that the accident occurred by reason of the negligence of the •car conductor, by ringing the bell while he was in the act of alighting, then he is entitled to recover such damages as the evidence shows you he has suffered.”
It is contended that this part of the charge was ■erroneous, for the reasons:
1. That the mere- ringing of the bell while the plaintiff was in the act of alighting was not negligence per se, which entitled the plaintiff to a verdict.
2. That the court should .have laid before the jury, in this part of the charge, all of the facts shown to exist at the time the plaintiff attempted to alight, — that is, that he came out upon the platform, and down upon the step of the car, with this parcel in his left hand, and stood there, awaiting the stopping of the car, without taking hold of the rail to support himself in stepping down.
3. That it was the duty of the court, in connection with this portion of the charge, to have stated to the jury the claim made by the defendant, that the plaintiff alighted on the west side of Mitchell avenue before the car came to a standstill, and whatever injury he sustained was the result of his own carelessness in alighting at the time and in the manner he did.
We think the charge not open to the construction given it by defendant’s counsel upon the first point here made. The charge must be taken as a whole, and we think the jury must have understood the charge to mean that it would be negligence on the part of the conductor to ring the bell and start the car while the plaintiff was attempting to alight.
We think the other two points contended for have no force whatever, in view, of another portion of the charge of the court, which was given to the'jury in connection with the portions before quoted, as follows:
“If,-on the contrary, you believe the plaintiff attempted to alight from the street-car of the defendant while holding a large package in his left hand, and before the car was brought to a standstill, and in consequence thereof suffered the injury shown, then the plaintiff cannot recover, and your verdict must be for the defendant, because, obviously, it would be an act of negligence on his part to alight from a car which was in motion, and if he did that thing the proximate cause of the injury would be his own negligence, and not negligence on the part of the ear company.”
The court further in the charge directed the attention of the jury to the fact that the testimony of the witnesses for the parties was at variance upon the subject as to where the plaintiff fell; and he called the attention of the jury to the testimony of two of the witnesses for the defendant that the accident occurred on the west side instead of the east side of Mitchell avenue, as claimed by plaintiff. We think the charge, taken as a whole, is not open to the objections made by defendant's counsel, and that it was a fair submission of the contention of the parties.
One other error is claimed. When the plaintiff called Peter Greiner, the truckman, as a witness in his behalf, and he had testified to taking the plaintiff home on his truck, and that he had had an acquaintance with plaintiff of seven or eight years' standing, he was asked the question:
“Q. The flushed color on his cheeks, — how long have you known his face to be in that condition?
“A. Ever since I knew him.
“Defendant’s Counsel: What are you trying to prove?
“Plaintiff’s Counsel: I have been told by defendant’s counsel that intoxication of the plaintiff is the defense in the case.
“Defendant’s Counsel: I did not tell Mr. Ohipman [plaintiff's counsel] anything of- the kind, and I deny that is our defense in the case. I will take an exception.
“The Court: If they do not seek to prove that, it may be stricken out.”
It is apparent from the record that nothing further was said in reference to that subject during the continuance of the trial. It is claimed, however, by defendant's counsel, that the remark was well calculated to prejudice the jury against the defendant, and bias them in the consideration of the case, and that the remarks made by this Court in Sweet v. Railroad Co., 87 Mich. 559, 572, apply with great force to the present case, and that the failure of the court to correct counsel and to strike out the remark, and to instruct the jury that they were not to consider it, was a serious error.
There would be great force in this contention had counsel for defendant on the trial called the attention of the court to the effect which the remarks of plaintiff’s counsel were intended to have upon the jury, and asked that the jury he cautioned against receiving such remarks to influence their verdict, or had counsel for defendant asked an instruction to the jury upon that subject before or at the time of the giving of the charge. But nothing of this kind was done, and apparently the remark passed entirely out of the minds of counsel, the court, and jury during the further progress of the trial. This is seen by the question asked by one of the jurors during the charge. The juror asked the court if they might be allowed to go out to the street, and see which side of the crossing the plaintiff was picked up, and he remarked:
“We don’t know by the testimony whether it was the east side or the west side of the crossing.”
It was upon this point that the court directed the jury that the testimony of the parties was at variance. It is •thus made apparent that what was uppermost in the minds of the jury was whether the truckman picked up the plaintiff on the east side of the avenue, or whether he fell on the west side, as testified by defendant’s witnesses.
The remark by plaintiff’s counsel was uncalled for, and the court at that time should have cautioned the jury not to give it weight; but we cannot say its necessary tendency, in view of the facts before stated, was to prejudice the jury against the defendant, or to bias them in their judgment.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Montgomery, J.
On the 21st day of February, 1890, the plaintiffs brought an action before James George, justice of the peace, against James Eslick, and on the 28th of February, 1890, recovered a judgment of $23.36 and $5 costs. On the 3d of February, 1891, an affidavit was filed and garnishee summons issued against the Federal Iron Mining Company, the affidavit stating on information and belief that the mining company was indebted to the defendant Eslick. This garnishee summons was returnable on the 12th day of February, 1891, and on that day the mining company appeared by E. Stepan, “ captain" of the above named garnishee defendant, and disclosed that said James Eslick had earned up to the day of garnishment $46, “ which -amount is not due until February 25, 1891, and that there is an assignment in against all moneys due him, the assignee being Peter Home & Co., of the city of Bessemer, Gogebic county, State of Michigan. Said assignment -bears date August 18, 1890/’ On this disclosure being filed, the justice issued a citation to Peter Home &' Co., stating the fact of the institution of the garnishee suit, and that the company had answered, in substance, that it was indebted to the principal defendant in the sum of $46, and that the same would not be due and payable until the 25th of February, 1891, and had also stated that said Peter Home & Co. claimed to be entitled to receive the whole amount above stated by virtue of an assignment thereof by the said James Eslick; and notifying said Peter Home & Co. to appear before the said justice on the 28th of February, at 9 o’clock in the forenoon, to maintain its claim to the whole or any portion of the indebtedness. On the 28th of February the parties appeared at the hour named, and by consent the cause was continued until 2 o’clock of the same day. At the appearance at 2 o’clock the defendant, by C. F. Button, its attorney, moved that no evidence be received:
1. Because no money or property was placed in the hands of the court by the garnishee defendant at the time of disclosure, or at any time; and claiming that, unless that was done, the court had no jurisdiction to summon any claimant under Act No. 175, Laws of 1885.
2. Because the answer of the garnishee, as filed, shows that the indebtedness, if any, was not due at the time the summons to claimant was issued and served; and under How. Stat. § 8053, when such is the case, the proceedings are held in abeyance until the debt becomes due.
This motion was overruled by the court. The defendant demanded a jury trial, which was subsequently had, and the finding of the jury was as follows:
“We, the jury, all agree that the assignment of James S. Eslick to Peter Home & Co. is void. Date of assignment, August 18, 1890.”
The case was appealed to the circuit, and on the trial at the circuit- the plaintiffs, to maintain the issue, intro, duced the judgment before the justice against Eslick, the affidavit in garnishment, the writ of garnishment, the disclosure, the return of the justice to the appeal, and rested their case. The defendant introduced no testimony, and under the charge of the court the jury found a verdict in favor of the plaintiffs and against Peter Home & Co. for the amount of the judgment and costs.
The questions raised by appropriate objections are:
1. Whether the summons was served upon an officer of the garnishee defendant authorized by law to be served with such process.
2. Whether the proceedings against the garnishee are valid, it appearing that the summons against this claimant was issued and served 13 days prior to the time when the money became due from the original garnishee defendant.
3. Whether the proceedings against this claimant could be maintained, it not appearing that the garnishee defendant had deposited the money owing to- the principal defendant or assignee with the justice.
4. It appearing that the justice’s judgment was not signed, whether it could be treated as of any validity.
5. Whether, under the statute in question, the plaintiffs were entitled to recover a money judgment against the claimant to the amount of his judgment in the principal suit; or whether, on the other hand, the extent to which the court could go would be to permit a finding which would conclude the claimant.
The statute under which this proceeding against this claimant is taken is section 28 of the amendatory act relating to garnishments, being Act No. 175, Laws of 1885, and provides that when the examination or disclosure of the garnishee shall disclose that any other person or corporation than the defendant claims in whole or in part the money, property, or indebtedness due by him or in his possession, and the name and residence of such claimant, the garnishee may deliver such money, property, or indebtedness to the justice, who shall cause to he served on such claimant a written notice to appear in said court, and maintain his claim. It further provides that the notice shall be served at least 10 days before the return or adjourned day of the garnishment suit; that for the purpose of giving an opportunity of. serving notice it shall be the duty of the justice, on the return-day of the garnishment suit, if requested by the garnishee, to adjourn such suit not less than 10 nor more than 30 days. It is further provided that after the service of such notice, and the payment or delivery to the justice of the money, property, or indebtedness as above provided, the garnishee shall be discharged from all liability to any person in respect to the money or property so paid or delivered. It is then provided that the claimant shall appear in the suit on the return or adjourned day named in the notice served upon him as aforesaid, and, in default thereof, judgment shall be rendered against him “in respect to his claim." The defendant or defendants so notified shall be considered as defendants in the place and stead of the garnishee, and an issue may be formed between the plaintiff and such defendants in the same manner as provided in How. Stat. § 8040. The issue may be tried by the justice or by a jury, as in other cases, and “such judgment shall be rendered between the parties as shall be just," and such substituted defendant or claimant shall have the same right to appeal as the original garnishee.
The provision quoted makes it clear that a fundamental error was committed in permitting a recovery of a money judgment against the claimant. The purpose of this statute is evident from a reading of its provisions. It is that the claimant shall be brought before the court, so that in whatever judgment may be rendered against the principal defendant, or in the application of the money which shall be paid into the hands of the justice to the extinguishment of the claim against the principal defendant, the claimant of the fund thus cited in shall be concluded. No such absurdity was contemplated as that by the bare fact that one not a party to the record claims to be an assignee of the indebtedness owing by the garnishee defendant he shall not only be concluded from recovering this fund of the garnishee defendant, but shall also be answerable to the proper plaintiff for a fund not in his hands, and to which the logical result of the proceedings shows he is not.even entitled.
It appears that no proceedings were taken against the garnishee after the disclosure. It becomes unnecessary to decide, therefore, whether the payment of the money into the hands of the justice is a condition precedent to the proceedings against the claimant. If not, certainly the garnishee defendant must be proceeded against, and the judgment, if any, must be recovered- against him. If it be assumed that the claimant has waived any irregularity in the proceedings, the only effect of such waiver is to give the court authority to render such a judgment as is contemplated' under the act above cited. This course was not pursued, and, the plaintiffs having failed to take any proper steps to charge the garnishee defendant, no binding judgment can be rendered.
It follows that the judgment should be reversed, with costs of both courts, and no new trial ordered.
The other Justices concurred. | [
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59
] |
McGrath, J.
On January 17, 1889, Timothy M. Bush conveyed to complainant by warranty deed 10 acres of land. At the time of the conveyance Thomas J. Pennock held a mortgage, dated May 24, 1888, covering the 10 acres and other land. On February 21, 1889, Timothy M. Bush conveyed the other land covered by this mortgage, with still other lands, to Esther Freer, one of the defendants. This last named conveyance was a warranty deed, subject to three mortgages, including the mortgage to Pennock aforesaid, which aggregated the sum of $3,000 which mortgages defendant Esther Freer assumed and agreed to pay as part of the purchase money, which was $5,500. The negotiations for the sale and conveyance from Bush to Esther Freer were negotiated by defendant Richard Freer, and the consideration so far as paid was paid by said Richard Freer. The conveyance to Esther Freer was made by direction-of Richard Freer, and without the knowledge of said Esther Freer. Two of the three mortgages referred to in said deed from Bush to Freer have been paid and discharged. The Pennock mortgage, which covers complainant’s land, has been assigned to Richard Freer, but the assignment has not been recorded, and Richard Freer refuses to discharge the mortgage. This bill is filed to compel such discharge, alleging that the mortgage has in fact been paid, but that it was assigned' to Richard Freer with intent to harass complainant, and that the failure to discharge it prevents complainant from selling . or mortgaging his land. It appears that at the time of the conveyance from Bush to Esther Freer, a fourth mortgage to one Holloway existed upon the land conveyed to Esther Freer, which mortgage Timothy M. Bush agreed to satisfy and discharge, and that said mortgage has not been discharged.
Defendants further insist that complainant was a stranger to the transactions between defendants and Timothy M. Bush, except that, while the negotiations were going on with Timothy M. Bush, complainant promised defendant Bichard Freer that, if the latter would release the said 10 acres from the Pennock mortgage, he, complainant, would remove and rebuild and place on the line certain fences, and thereupon “this defendant Bichard Freer promised so to do if Timothy M. Bush would do as he agreed,” and both the said Eugene M. Bush and Timothy M. Bush have failed to do what each agreed, to do; that defendant Bichard Freer purchased the said Pennock mortgage, and holds and owns the same, but that he is willing to discharge the same if complainant will perform his agreement respecting the fences, and pay and discharge the said Holloway mortgage.
Complainant’s rights do not depend entirely upon the agreement on Esther Freer’s part to discharge the mortgage. By operation of law, Esther Freer took the property conveyed to her charged with the payment of the mortgage upon complainant’s land. The breach of- the covenant of warranty, which the deed from Bush to her contained, did not relieve the land from the charge created by operation of law, or affect complainant’s right to insist that the land should be sold upon foreclosure of the mortgage in the inverse order of alienation. The record discloses no agreement on the part of complainant respecting the discharge of the Holloway mortgage, nor does it disclose an agreement on complainant’s part that he should build the line fence spoken of. Complainant had his deed at the time the negotiations were had between defendant Bichard Freer and Timothy M. Bush. There was some talk concerning the line fence, but the final agreement relative thereto, if any existed, was made with Timothy M. Bush, and not with complainant. According to defendants’ testimony, the entire amount involved in. this fence controversy was not to exceed $40. It appears, too, that defendant Eichard Freer moved this fence. He says: ' .
“I moved the fence. It was in the spring, just after ■oats came up. I went and got the rails, as Eugene had told me, as near as I could. I didn't pay anything for rails or any damage for not moving them. . He had told me if I would pay him $5 I could have them, but finally he agreed that if I would take them away he wouldn't charge me any damage."
The record sho.ws that after the conveyance was made Eichard Freer had several law-suits with Timothy M-Bush, one of which was respecting this very fence. The fence suit was settled between the parties by payment of •a sum of money by Timothy M. Bush. These suits were brought by Eichard Freer and were settled by him. In ■all matters Eichard Freer appears as the party in interest. He paid the consideration for the la.nd, and paid off the two mortgages. He said that he took the deed in his wife’s name because he “ understood that Timothy M. Bush and Eugene Bush were trying a snap game on him.” When asked why he had the Pennock mortgage assigned to him, instead of having it discharged, he says:
“Mr. Timothy Bush agreed to have the Holloway mortgage free the part of the farm I bought. Also Eugene wouldn't do as he agreed about the fence. Eugene said, if I would discharge the Pennock mortgage from his place, he would move the fence onto the line. I really ■didn’t accept this proposition, but afterwards [after the deed was given] went to his house, and said to Eugene if he would move the fence on the line it would he all right. He refused to do so. I told him if he wouldn't move ■the fence, I would never discharge that mortgage off his land. I hadn’t got the mortgage at that time."
One of the complainant’s witnesses testified to a conYersation with Eichard Freer, in which the latter said that complainant—
<c Had notified Esther Freer to remove the fence; that he would show that young man that he wouldn’t pay the mortgage and discharge it.”
Another witness says, respecting the sale hy Bichará Freer to Thomas Pennock:
“I think Freer was to take a mortgage given to Thos. Pennock by Timothy M. Bush. Mr. Freer told Pennock he wanted the Thos. Pennock mortgage signed over to him, and said he would let the little man sweat over it.”
Bichard Freer must be regarded as a party, if not the real party, in interest, so far as the land conveyed to his wife is concerned. The reasons, and the only reasons, which he urges for his refusal to discharge the mortgage relate to the land itself, and not to his separate interest, as the owner of the mortgage. It is clear that the assignment of this mortgage was taken for' the sole purpose of harassing the complainant, and to compel him to do what he was not legally or equitably bound to do. The mortgage resting upon complainant’s land is a cloud upon his title, and the bill may be treated here as one to remove such cloud.
The decree of the court below is therefore reversed, and a decree will be entered here against defendant Bichard Freer, directing a discharge of said mortgage, so far as it affects the land of complainant, together with the costs of both courts.
The other Justices concurred.
The bill was filed under How. Stat. § 5704, to obtain a discharge of the mortgage, and to collect the statutory penalty of $100. | [
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McGrath, J.
Plaintiff, a brakeman upon a freight train in defendant's employ, was injured in February, 1888, while attempting to couple to a car upon a siding at a way station. The side track was from 400 to 600 feet long, and ran north, parallel with the main track. On the east side of the spur were perpendicular banks and coal docks, just far enough from the track to allow the cars to pass. The distance between the main track and the siding at the point of the injury was about seven feet. There had been considerable snow during the winter, and the snow-plows had thrown it from the main track into thiB space, and, inasmuch as it could not be thrown to the east, it was shoveled into this space from the siding, forming a ridge between the main and side tracks from two and a half to four feet high. This ridge of snow had packed and had become hard, and the angle from the west track of the siding to the top of the ridge was from 40 to 45 deg. No space had been cleared at the point, of the injury, but the ascent began at the rail.
For about one-third of the distance north of the switch, the snow between the main and side tracks had been cleared away to a level with the tracks. Plaintiff had cut off the engine and two cars, rode them to the switch, switched the engine and two cars upon the side track, and preceded the moving section of the train to make the coupling to a car that stood within the space that had been cleared of the snow. The last car upon the moving section of the train was loaded with logs, which projected over the rear of the car, rendering the act of coupling difficult and dangerous. The draw-bar upon this car was also defective. Plaintiff describes it as follows:
“I think it was a skeleton draw-bar, — what they call a skeleton draw-bar. I think it was cast iron or wrought iron; I don't know which it was; and it was hollow. The spring that was in back to hold .it out to its place, or the plug, it seems, had worked out of there, or broke or taken out, so that nothing held it from pushing clear in at the side, except the pin for the coupling there, and that had pushed into the wood, so that it wore a hole in there as big as the pin was. It was worn bad. The bolts that went up through it to hold it were worn so it dropped down four inches lower than the draw-bars on the other cars.”
This defect increased the danger and difficulty of making the coupling. The first attempt to couple failed, as did the second. In the attempts at coupling, the car which they were seeking to attach was driven north upon the side track, and opposite the snow bank. By reason of the projecting logs, plaintiff was compelled to work and keep in a stooping position,, and upon the failure of the second attempt, fearing injury if he remained in his position* he undertook to back out from between the cars* and, stepping upon the side of the snow bank, his foot slipped, and he was thrown back between the cars* and seriously injured.
Defendant offered no testimony, and the plaintiff had a verdict and judgment. Defendant submitted but one request, to wit, that defendant was entitled to a verdict.
Counsel contend here that plaintiff had uncoupled the car loaded with logs from the other section of the train; that plaintiff knew of the defective condition of the draw-bar; that after the first attempt he then knew its condition, and neglected to get another longer link; that plaintiff had uncoupled the engine and two cars upon the main track north of the switch, had an opportunity to observe the snow bank, and knew, or ought to have observed, the condition of the snow upon the side track.
It is not clear that the mere drawing of a coupling pin* after the proper slack had been given, would apprise the plaintiff of the condition of the draw-bar. But, admitting that plaintiff knew of its defective condition, there is no testimony tending to show that he did not act in view of the increased danger.
One of the counts in the declaration sets up the condition of the draw-bar* and the condition of the logs upon the car, in explanation of the failure to couple* the ultimate position of the car, and plaintiff’s situation. The negligence counted upon in this count, and upon which the case was submitted* was the condition of the side track. The proofs established these allegations* and no objection was made to their introduction. The evidence did not tend to show any negligence on plaintiff’s part respecting the coupling of the cars. He explains why the attempts failed, and he is not contradicted. Bespecting the snow between the tracks, plaintiff testified that he was not aware of its condition. It had been accumulating for weeks. There had been quite a fall within a few days. The defect in this side track was not one of construction, nor did it result from the lay of the land, nor from irregularity in the surface of the ground, nor from want of ballast. It was not an ordinary defect, nor one incident to construction. The irregularity in the surface was one arising from negligent operation. It was a condition brought about by the practice in cleaning snow from the tracks. The ridge had been made by the defendant itself, without reference to the fact that brakemen were . necessarily in upon the tracks between moving cars, and could only get from that position by stepping out into this space. In the use of this side track, which was frequent, it was the duty of brakemen to go upon it for this very purpose. On the east there was no opportunity for escape, and, by the act of defendant, escape on the west was made extremely hazardous.
A risk made hazardous by the act of the company itself cannot be said to be one which the employer, by the exercise of reasonable care and diligence, could not reasonably have become aware of and provided against, nor is it one which the employé" assumed »when he embarked in the service as incident thereto, nor can it be said to be- one equally apparent to the observation of both employer and employé, nor is it one the mere failure to observe which is chargeable as contributory negligence.
The judgment is affirmed, with costs to plaintiff.
Morse, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Per Curiam.
This is an application for a mandamus, directing the county treasurer to refrain from receiving and receipting for a liquor tax before the filing of the bond required by statute.
Respondent contends that there is no provision of the statute requiring the approval and filing of the bond to-precede the issuing of the receipt for the tax. It is true that theje is no express provision_ to that effect. The statute, however, prohibits the applicant from engaging in the saloon business until the bond is approved by the proper body, and filed with the county treasurer, the tax paid, etc.
The simple question is whether the statute contem plates that the county treasurer shall receive the amount of the tax, and issue a receipt therefor, until such time as the party proposing to pay the tax has become entitled lawfully to engage in that business by complying with the other provisions of the statute. The statute requires that the bond shall be approved by the township board, the village council, or the common council; but the bond is not filed with the town clerk, the village clerk, the city clerk, or the county clerk, but the statute expressly provides that it shall be filed with the county treasurer. It seems to us that the express purpose of this requirement is to enable the county treasurer to determine, before taking the money and issuing his receipt, that the applicant has complied with the provisions of the statute respecting the bond.
In Rode v. Phelps, 80 Mich. 610, we considered this question, and held that we would, not compel the treasurer to issue the receipt, because the ' proper bond had not been filed with him according to law.
The writ will issue directing respondent to require the filing of the bond provided for by the statute, and the payment of the tax, before-the issue of the receipt.
No costs will be awarded.
Grant, J., did not sit. | [
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] |
Grant, J.
This is a certiorari to review the proceedings of the respondent commissioner in laying out and opening, a highway over the petitioner’s lands. Several objections are raised to the regularity of the proceedings. Petitioner was not made a party to the proceedings, was-not served with notice, and did not appear at the hearing, and waive her right to notice. For this reason the-proceedings are void.
It is unnecessary to consider the othér objections.
Proceedings must be quashed, with costs to the petitioner.
Long and Montgomery, JJ., concurred. Morse, C. J., did not sit. McGrath, J., took no part in the decision. | [
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] |
Long, J.
The bills in these case are filed to enjoin the further prosecution of two actions at law brought by the defendants Miller and Haslett as plaintiffs against the complainant as defendant. In each case the plaintiff sued as assignee of defendant Bancroft.
The complainant is charged as the successor of the Chicago & Northeastern Railroad Company in each action. In the Miller case the action was for moneys expended for the Chicago & Northeastern Railroad Company in building fences, station-houses, freight-houses, water-tanks, semaphores, and for work, labor, and material provided and money paid by Bancroft for that company. In the Haslett case the action was for moneys claimed to be due to Bancroft upon a contract made by Bancroft with the Chicago & Northeastern Railroad Company, by the terms of which Bancroft was to receive $1,000 per mile for right of way furnished by him to said company.
Before the organization of the Chicago & Northeastern Railroad Company, which road extended from the city of Flint to the city of Lansing, a distance of about 50 miles, a railroad had been built and put in operation from Port Huron to the city of Flint, called the “Port Huron & Lake Michigan Railroad Company.” A road had also been built south-westward from Lansing to the state line of Indiana, called the “Peninsular Railroad,”' and that had been extended westward to Valparaiso, Ind., and was called the “Peninsular Railroad of Indiana.” These three railroad companies had been consolidated by agreement between the different companies, and a new consolidated company, called the “ Chicago & Lake Huron Railroad Company,” was formed. After its consolidation, defendant Bancroft became its general manager, and thereafter was appointed receiver of the consolidated company by the circuit court of the United States for the eastern district of Michigan in equity, in a suit wherein the Union Trust Company of New York, in behalf of the bondholders, was complainant, and the-Chicago & Lake Huron Railroad Company was defendant. While defendant Bancroft was acting as receiver for that, company, whose road extended from Port Huron to Flint and from Lansing to Valparaiso, in the state of Indiana,, and on the 12th day of August, 1874, articles of association were filed organizing the Chicago & Northeastern Railroad Company, Mr. Bancroft becoming one of the-subscribers to the shares of the capital stock. This last-named company was organized for the purpose of constructing a railroad from the city of Flint to the city of Lansing, in order to make a continuous line from Port-Huron westward to Valparaiso. Mr. Bancroft continued, in the discharge of his duties as receiver of the Chicago- & Lake Huron Railroad Company up to January 21, 1878,. before which time the Chicago & Northeastern Railroad-had been constructed and put in operation. At the time-of the organization of the Chicago & Northeastern Railroad Company Mr. Bancroft subscribed for 100 shares of its capital stock. James M. Turner, Isaac Gale, and others, of this State, and William E. Bowes, of Indiana, •also became subscribers. The company was organized under the general railroad laws of this State with a nominal capital of $1,000,000. A board of directors was duly elected, and it is claimed that $2,500 was paid in, being the 5 per cent, of the $1,000 per mile required by the •statute.
On the 10th day of November following defendant .Bancroft entered into a contract with the company, •through William E. Bowes, its fiscal agent and secretary, to construct the railroad from the city of Flint to the city of Lansing, its entire length. By the terms •of this contract Bancroft was to build complete that part of the road from Flint to its crossing with the Detroit & Milwaukee Eailroad within one year, and to •complete the balance within two years from that date. The work was to be done in conformity with the speci•cations which were annexed to the contract; and in payment therefor Bancroft was to receive $1,250,000 in its first-mortgage bonds, and the further sum of $997,-.500 in is common stock, the bonds to be delivered from time to time as they might be called for by him, and the stock to be delivered, $600,000 upon the signing of the contract, and the balance upon the completion of the road to the city of Lansing. The contract further provided that,' unless the company should procure the right of way on or before the first day of February following, Bancroft might, at his option, procure the same, .and be paid therefor at the rate of $1,000 per mile in cash. It was further provided in the contract that Ban■croft should be entitled to all notes and subscriptions to capital stock that might have been or might be made by any party or parties as donations or otherwise, to the company to aid in the building of said road. The secretary or treasurer of the company, by the terms of- the contract, was to use the corporate name of the company, in indorsements or otherwise, as Bancroft might require-from time to time to aid in the purchase of rails or otherwise facilitate the construction of the road. The-specifications of this contract, and made a part of it, provided for the usual excavations, embankments, bridges,, culverts, rails, ties, cattle-guards, planking of highway-crossings, ballasting, and also provided that “the chief engineer shall be sole umpire and arbiter of the character, quality, and quantity of all work done by the contractors, and also the progress of the work and final completion of contracts.” The contract arid specifications made no provisions for fencing, side tracks, switches,, semaphores, water-tanks, station-houses, freight-sheds, nor for any of the appointments required by the general railroad law, without which the road could not be operated.
After the execution of this contract Mr. Bancroft entered into a contract with Clarke Bros, to construct 25 miles of road, commencing at Lansing and extending-east, by the terms of which Clarke Bros, were to furnish a large quantity of the iron, for which work and iron; they were to receive $125,000 in cash, $130,000 in bankable paper, and $130,000 in first mortgage bonds of the-company. These bonds, by the terms of the contract,, were accepted by Clarke Bros, at their face value. In this same contract with Clarke Bros, it was contemplated that work not specified would be done under the contract, it being expressly provided that one-fourth of the-amount to be paid for extra work should be paid in bonds of the company, fixed at 80 cents on the dollar.
Under these contracts the road was completed about January 1, 1877. Mr. Bancroft, during the time he-was engaged in constructing it, received the entire-amount of the bonds and the whole amount of stock of the company, less 25 shares, as provided in the contract, .and obtained from Mr. Bowes a certificate, indorsed upon the contract, as fiscal agent of the company, that the road had.been completed according to the terms and •conditions of the contract. Upon the completion of the road, and during the time of its construction, Mr. Bancroft had pledged or in some manner disposed of a large •amount of the stock and bonds of the company to what is known as the “Flint Pool,” and to O’Brien J. Atkin.son and Edgar White at Port Huron. After the completion of the road under -the contract, Mr. Bancroft, .still acting as receiver of the Chicago & Lake Huron Railroad, by some arrangement (but with whom made is not very definitely stated in the record) commenced running trains of cars over the entire length of the road from Port Huron to Valparaiso upon an agreement to pay to the Chicago & Northeastern Company, for the use of its road between .Flint and Lansing, the sum of $2.50 per car hauled over its road. This arrangement was continued until the 21st day of January, 1878, when ■James M. Turner, acting for himself and the Flint pool .and others who ha'd acquired a majority of the stock and bonds of the Chicago & Northeastern Railroad Company, made an arrangement with Mr. Vanderbilt, of New York, by which Mr. Vanderbilt became the owner of such stock .and bonds, and at once assumed control of the road, James M. Turner acting as its president. Subsequently, .and in September, 1879, the Vanderbilt interests were conveyed to Sir Joseph Hickson, of the Grand Trunk Railway system, as trustee, and on March 23, 1880, these .several lines of road extending from Port Huron to Valparaiso were consolidated under the name of the Chicago & Grand Trunk Railway Company, the complain.ant in these cases.
Before Mr. Vanderbilt acquired such interest in the Chicago & Northeastern Company, Mr. Bancroft had ■erected along the line of the road fences, station-houses, freight-houses, water-tanks, semaphores, etc. It is not ■claimed that any written contract was ever made between the company and Mr. Bancroft for this work,, or in fact that any resolution was adopted by the board of directors directing it to be done; the claim being that the individual members of the board of directors authorized it, •and agreed from time to time that payments should be made.
At the time Vanderbilt purchased the stock and bonds, the books of the company did not show any indebtedness for the items claimed in these two suits. Mr. Bancroft did not keep any books showing that the Chicago & Northeastern Railroad Company was indebted to him. He did keep upon his receiver’s books a statement of .moneys paid out in doing the work for which claim is made in the Miller case, which items were afterwards transferred from such books to other books of his own, and which is simply a statement of moneys paid out, but not appearing on the books as a charge against the •company. These books are in evidence, and marked “Exhibits 51, 52, and 53.”
Before Mr. Hickson purchased in the interest of the stockholders of the Grand Trunk Railway, Mr. Meddaugh, of Detroit, who was acting for Mr. Hickson, and as the American counsel for the Grand Trunk interest, was referred by Mr. Vanderbilt to James M. Turner, of Lansing, for information respecting the indebtedness of the Chicago & Northeastern road and as to the condition •of its right of way. Mr. Meddaugh went to Lansing and had a conference with Mr. Turner, and was there assured by him that the right of way had all been acquired and paid for, and that there was no indebtedness of any kind .beyond that embodied in the statements which Mr. Turner then gave him. These statements are Exhibits 1, 2, and 3. Exhibits 1 and 2 are trial balances of the Chicago' & Northeastern Railroad Company, under dates, respectively, of June 30 and July 31, 1879, and Exhibit 3 is a tabular statement of the earnings and expenses of the road for the year ending June 30, 1879, and in no one of them does Bancroft appear as debtor or creditor. This fact is not denied by Mr. Turner. On the contrary, upon his cross-examination, when asked with reference to' the indebtedness of the Chicago & Northeastern Railroad, and what he said to Mr. Meddaugh on the occasion of the interview referred to, he stated that he represented to Mr. Meddaugh that the road owed nothing except the bonded and ordinary current indebtedness, and that he-gave him the statements in writing above referred to.
It also appears that Mr. Turner, as president of the company for the years 1875, 1876, and 1877, made a sworn statement each year of the financial condition of the road to the Railroad Commissioner of the State, as required by law, in which, for the year 1875, he stated that no unfunded indebtedness had been incurred for the-construction, equipment, or purchase of property, and that no debt had been incurred for any other purpose, and that there was no debt then outstanding against the company. In his report for the year 1876 he states, the total indebtedness at $1,250,000, which is also stated to be the total amount of the funded debt. He also states that there is no unfunded debt incurred for construction, equipment, or purchase of property, nor for any other special purpose, and that there are no other debts, current credit balances, etc. At page 511 of the-report he states, under the head of “ Cost of Road and Equipment,” that grading and masonry, bridging, superstructure, including rails, land, land damages, and fences,, passenger and freight stations, wood-sheds, and water stations, engine-houses, oar-sheds, and turn tables, and all other items charged to construction not enumex-ated, were paid for by contract for one gross sum, and that the total amount expended for construction was $2,250,-000, which sum was made up by adding the nominal capital stock and bonded debt together; and that the road was completed l’eady for ballast December 31, 1876. For the year 1877 he reports under the head of “Debt,” the total liabilities at $1,250,000, and expressly states that there is no unfunded debt for construction or equipment. real estate, or anything else; and again in that report, under head of “ Cost of Road and Equipment,” he says that the grading and masonry, bridging, superstructure, including rails, land, land damages, and fences, passenger and freight stations, wood-sheds, and water-stations, engine-houses, car-sheds, and turn-tables, machine-shops, engineering, agencies, .salaries, and other expenses during construction, were all paid' for by the entire issue of stock and bonds.
It also appeal’s that when Mr. Vanderbilt proposed to purchase the stock and bonds he sent Judge Mason and John Newell to Lansing in his behalf to inquire into the property and its financial situation. They called upon Mr. Turner, as Turner himself testified. They examined the books, as Turner says, and “were there to inspect the propex-ty, the financial- condition, and standing.” At this time, which was in 1878, as has already been stated, the books of the company did not show any indebtedness to Mr. Bancroft; and the three reports had then been made by Mr. Turner to the Railroad Commissioner. It is evident that the agents of Mr. Vanderbilt did not find any other indebtedness than shown on the books, and Mr. Turner admits that he did not tell them of the Bancroft claim. At-least their report was satisfactory to Mr. Vanderbilt; for he at once closed the matter, and took the bonds and stock of Mr. Turner.
The only excuse made, or attempted to be made, by Mr. Turner for these statements to the Commissioner of Railroads and the agents of Mr. Vanderbilt when he purchased, and to the agents of Mr. Hickson when he made his purchase, is contained in a letter subsequently written by him to Mr. Meddaugh, and in his testimony, in which, not denying the representation he had made, he says he thought that Mr. Meddaugh had Bancroft so thoroughly surrounded that he would never be heard of again;” so that Mr. Vanderbilt and Mr. Hickson, as trustee, seem, from the testimony of Mr. Turner, to have purchased in full confidence that there was no outstanding indebtedness of the company, except in small amounts, aside from the bonded debt, and that entirely covered the cost of construction, and every item contained in the Miller and Haslett accounts. Not one word was ever said to the agents of Mr. Vanderbilt or of Mr. Hickson by Mr. Turner about the Bancroft claim until long after the road went into the hands of the stockholders of the Chicago & Grand Trunk Railway Company; yet, during the existence of the Chicago & Northeastern road as a company, Mr. Turner was its president, and in the sale of its stock and bonds to Vanderbilt represented a majority of the same.
We think the record contains abundant evidence that Mr. Bancroft was cognizant of these facts and of the conduct of Mr. Turner in the premises. Mr. Bancroft's attention, on his cross-examination, was called to the reports made by Mr. Turner to the Railroad Commissioner. He was asked:
“Q. Do you know who made those reports?
“A. I do not know who made them.
“Q. Did you know of their being made at the time of their being made?
“A. Yes, sir.
“Q. You remember of the fact of seeing them at the time of their being made?
“A. I presume, in the ordinary course of business, I saw them and knew of them; but, as to recollecting the time and place I saw them, I could not do it.
“Q. Then all you can say is, at the time when they were made you knew of their being made, and knew what they contained at that time?
“A. I must have known so; yes, sir."
By his own admission Mr. Bancroft knew that Mr. Turner, as president of the company, had made sworn reports to the Railroad Commissioner, stating that the oonstruction account had all been paid for by the entire issue of stock and bonds, and that this indebtedness included the value of the land, land damages, fences, passenger and freight stations, water-tanks, engine-houses, otc., and which would include every' item of the claim made in the two suits at law by Miller and Haslett.
Sir Joseph Hickson, president "of the Grand Trunk Railway Company of Canada, testifies that in September, 1877, he looked into the books of the Chicago & North-eastern Company and found that no claims were there recorded in favor of Mr. Bancroft, and that prior to that time he had received assurances from Mr. Bancroft, ■on various occasions, that there were> with some insignificant exceptions, no outstanding liabilities of the company, and that these assurances were confirmed by an ■examination of the books of the company; that he purchased the stock and bonds of that company on behalf of the stockholders of the Grand Trunk Railway -Company of Canada; and that before the purchase Mr. Meddaugh had reported to him that he had received assurances that the title to the right of way was perfect. The interview between Sir Joseph Hicks, and Mr. Ban croft about the affairs of the company seems to have grown out of a proposed sale by Mr. Bancroft of the stock and bonds of the company directly to Mr. Hickson and the Grand Trunk people before Mr. Vanderbilt purchased. This was called the “Amsterdam Agreement/'" which is in writing, and introduced in evidence. The agreement fell through, and the sale was finally made by Mr. Turner to Mr. Vanderbilt, instead of by Mr. Ban. croft to the Grand Trunk Bailway. During the negotiations in 1877 for the sale under the Amsterdam agreement, Mr. John Bell, the general counsel for the Grand Trunk Bailway Company of Canada, had a conversation with Mr. Bancroft, in which he testifies that he was told by Mr. Bancroft that the right of way for the Chicago &. Northeastern road had been paid for, and that there were no claims existing against it. He also testifies that he remembers distinctly of Sir Joseph Hickson particularly inquiring of Mr. Bancroft what liabilities there were against the Chicago & Northeastern Bailroad Company, as he was anxious to know the exact condition; and upon every occasion, in his hearing, Mr. Bancroft did not make any claim that the company was indebted to him in any manner. Mr. Bancroft, in his direct examination, claimed that Sir Joseph Hickson, and the people in whose interest he was making the purchase under the Amsterdam agreement, knew that he had claims against the company; but on his cross-examination he admits that no claim was made for the right of way, and that no other claims were specifically mentioned.
We find, then, Mr. Bancroft and Mr. Turner, prior to these purchases, both making representations that there was no indebtedness against the Chicago & Northeastern Bailroad Company, except a small amount for current expenses, etc., and that the right of way, and every other item claimed for in the two suits, had been fully paid for by the entire issue of stock and bonds.
It is contended upon the part of the complainant,—
1. That William L. .Bancroft organized the Chicago & Northeastern Railroad Company, notion the purpose of building and operating the railroad as contemplated by the general railroad law, but for the sole purpose of ■enabling him, said Bancroft, to construct a road between Flint and Lansing under cover of the corporate organization known as the “Chicago & Northeastern Railroad Company;” that no one contributed a dollar to its capital stock, and that the corporation existed merely on paper; that the corporation and Bancroft were one and the same, and what purported on its face to be a contract between the corporation and Bancroft was in fact .a contract by William L. Bancroft with himself.
2. That William L. Bancroft organized the Chicago & Northeastern Railroad Company in fraud of the statutes •of the State; that the alleged contract or contracts, under which he claims, were made in furtherance of the fraudulent scheme, and are therefore tainted with it, and void.
3. That the contract in the Haslett case is void on its face, because contrary to public policy.
4. That the construction of the road did not cost to exceed $700,000, and the complainant is entitled to have Bancroft account to it for the stock and bonds issued to him at their par value, and to have a decree against him for the payment of the amount thereof, less the actual sum expended by him in the construction of the road.
5. That Bancroft knew of the sale of the stock and bonds by Turner to Vanderbilt, and made no objections to the sale, but consented to the sale, and aided in making it, without disclosing to Vanderbilt, or to ■any one acting for him, that he (Bancroft) had any claim for the right of way, or had any other claim against the company; that he knew of the proceedings for consolidation, and gave no notice of such claim; that the shareholders in the several consolidating companies surrendered their shares, taking therefor shares in the complainant company, and at that time the books of the Chicago and Northeastern Company did not show any indebtedness to Bancroft either for right of way or for any other of the claims sued for in the two suits at law; that the stock and bonds received by Bancroft subsequently passed into the hands of bona fide purchasers in good faith for value; that all of the bonds except $35,000 have since been retired by the complainant company at the full face value thereof, and accrued interest, and said stock, at the time of the consolidation, was believed to be and was treated as fully-paid-up stock, and new non-assessable stock of the complainant was issued to the holders thereof in like amount, share for share, which has since been transferred to other holders, who have-bought in good faith for value.
It is undoubtedly well settled that parties who deal, with a corporation de facto cannot collaterally deny the-legality of the corporate existence. By dealing with such company they are held to admit that it is a corporation, and the question of the legality of its organization is a question which is to be raised only by direct proceedings therefor in behalf of the State; but it does not follow that one who deals with it as such, under the circumstances here stated, shall be precluded from showing that the organization of the company was brought about for the very purpose of perpetrating a fraud undercover of ’it.
Morawetz on Corporations (section 1) says:
“It is essential to a clear understanding of many important branches of the law of corporations to bear in-mind distinctly that the existence of a corporation,, independently of its shareholders, is a fiction; and that the rights and duties of an incorporated association are in reality the rights and duties of the persons who oppose it, and not of an imaginary being.”
At section 227, he says:
“In equity the conception of a corporate entity is used merely as a formula for working out the rights and equities of the real parties in interest, while at law this-figurative conception takes the shape of a dogma, and is often applied rigorously, without regard to its true purpose and meaning. In equity the relationship between the shareholders is recognized whenever this becomes necessary to the attainment of justice; at law this relationship is not. recognized at all.”
In Gas Co. v. West, 50 Iowa, 16, 25, it is said:
“Equity will not be bound by the technical rules of the law when these rules will permit fraud to triumph. The legal rules which regard a corporation as an artificial person, to be bound only by acts done in accord with its charter, which permit it to hold property as a natural person, and limit the interest of the stockholder therein to his shares, must all go down when they are attempted to be used as instruments of fraud by the dishonest, and stand in the way of equity.”
By the statute permitting consolidations (How. Stat. § 3344), it is provided that—
“All and singular the rights and franchises of each and all of said two or more corporations, parties to such agreement, and all and singular their rights and interests in and to every species of property and things in action, shall be deemed to be transferred to and vested in such new corporation, without any other deed or transfer; and such new corporation shall hold and enjoy the same, together with all the right of way and all other rights of property, in the same manner and to the same intent as if the said two or more corporations, parties to such agreement, should have continued to retain the title and transact the business of such corporation; * * * that all the debts, liabilities, and duties of either company shall thenceforth attach to such new corporation, and be enforced against the same to the same extent and in the same manner as if such debts, liabilities, and duties had been originally incurred by it.”
Under the proofs in this case it is apparent that Mr. Bancroft was the company. He paid all that was paid in its organization, and then entered into a contract by which he took all its bonds and all the stock that was ever issued, which was the whole amount of stock, less 25 shares. The contract which he pretended to enter into with the company through Mr. Bowes, as its fiscal agent, was in fact a contract by himself of the one part, with a corporation of the other part of which he was the sole owner of all of its stock; and by the terms of the contract he took all that the company had. If this contract had been enforced it could not but operate as a gross fraud upon the company, if such a company actually existed except upon paper.
The whole scheme of the organization is patent. Mr. Bancroft was receiver of the other companies, and to make a through line from .Port Huron to Valparaiso, and thence to Chicago, the line from Flint to Lansing must be built. He conceived the idea of building that link, and for that purpose organized the Chicago & Northeastern Company, keeping the organization in his own hands, and making a contract by which he should get all it had, bond it for $35,000 a mile, and then con. solídate it with the other companies for a through line by replacing its bonds by the bonds of the consolidated company. The Amsterdam agreement shows that it was his intention to take advantage of the exigencies of the other companies, and in that way to replace the bonds which he held of the Chicago & Northeastern Company. Under the contract he left nothing in the hands of the company by which it, as a corporation, could complete its road. The road which he was to build by the terms of the contract was not one which, under the statute, could be operated. It had no side tracks, turn-tables, station-houses, water-tanks, semaphores, fences; etc., necessary to operate the road, and not a foot of the right of way secured when the contract was entered into, and not a dollar in the treasury or a single bond to purchase the same with, no rolling stock even being provided for. He took all the company had, and now contends that the company is bound to pay him $1,000 per mile for securing the right of way, and for side tracks, water- tanks, station-houses, etc., for the building of which his contract did not provide. Under the statute authorizing the consolidation, the complainant company could, in any event, only be made liable if the Chicago & Northeastern Company could be so held.
I think the proofs show clearly:
1. That the whole scheme was intended as a fraud upon the statute authorizing' the organization of railroad companies.
2. That the complainant company is not estopped from inquiring into it, under the circumstances of this case, for the reason that the indebtedness upon the claims now made was not known either to the Yanderbilt interest or the Grand Trunk interest at the time of their respective purchases of the bonds and stock of the company; and no such claim was made by Mr. Bancroft at or before the time of the consolidation of the Northeastern Company with the Chicago & Lake Huron Company, under the name of the Chicago & Grand Trunk Railway Company, the complainant in these cases.
3. It is also apparent that in equity Mr. Bancroft has been more than paid for all the labor and money expended by him, including the claims now made for right of way and the items involved in the Miller case. By the terms of the contract Bancroft was to receive the bonds whenever he called for them. The contract was executed November 10, 1874, but he did nothing under it until about the time he entered into a contract with Clarke Bros., June 10, 1876, though he was to commence at •once, and construct and complete the road from Flint to the crossing of the Detroit, Grand Haven & Milwaukee road at Durand within one year. The Clarke Brothers, under their contract, were to construct 25 miles of road, commencing at Lansing, extending east, and to furnish a large quantity of iron, for which work and iron to be furnished they were to receive $385,000, and of which $130,000 was to be in first-mortgage bonds of the company at their face value. In the same contract with Clarke Bros, it was contemplated that work not specified therein would be done, and it was provided that one-quarter of this'extra work by them should be paid for in bonds at 80 cents on a dollar. This shows that the bonds, -at that time, were regarded as having some considerable value. It is also apparent from the answer of Mr. Bancroft in this case, and to which answer the other defendants refer in their answers, that these bonds were worth at least 50 cents on a dollar at that time. In paragraph 9 of his’answer Mr. Bancroft says that—
“The market value of bonds on such a road was not over 50 per cent, of their face value, while the value of the stock was merely nominal, and that defendant, in his estimate for the building of said road, so valued said bonds and stock, and that such a valuation was a reasonable and proper one, as compared with similar railroad undertakings, and as may be shown by an examination of price-lists of ordinary railr.ad securities, and in fact the complainant, or persons who acquired said bonds and stock for it, paid therefor, after the completion of said road, only 50 cents on the dollar of said bonds, allowing nothing to said Vanderbilt for a majority of its said stock."
It is admitted, therefore, by the answer that the bonds, at the time they went into Bancroft’s hands, were worth 50 cents on a dollar, or $635,000, and these bonds, in addition to the stock, $997,500 at its face value, went into Mr, Bancroft’s hands. A showing is made of the cost and expenses of construction of the road by Mr. Bancroft in the present suits by Exhibit 55, produced by him. The total expenditure is stated at $587,148.53. Afterwards he produced another statement, called “Exhibit 54," made up apparently of the same items as the other exhibit, and with some other items added at the bottom, making the sum total in that exhibit for theeost of construction of the road, including the Miller and Haslett claims sued upon, at $608,426.30. In this last exhibit is added the sum of $10,472.50, for right of way, to “ sundry persons.” This is over and above the $1,000-a mile provided for in the contract; so that in any event, without placing any value whatever upon the stock transferred to him, considering only the amount which he received from the sale of the bonds, and placing the bonds at their value admitted in his answer, he has-received several thousand dollars more than all moneys-expended by him, including the Miller and Haslett claims. If we calculate the value of the bonds at the prices agreed upon in the Clarke contract, and what Bancroft received for the bonds turned out to Mr. Atkinson and the Flint-pool, it would show a still greater amount coming into his hands from the sale of the bonds. Equitably, therefore, Mr. Bancroft is not in a position to insist upon the payment of these claims, and defendants Miller and Haslett stand in no better position than Mr. Bancroft.
4. We think the defendants should be estopped from prosecuting their claims against the complainant company-in the suits at law by reason of the representations made-by Mr. Turner, and of which Bancroft must have been fully cognizant, and by reason of the representations-made by Mr. Bancroft to Mr. Hickson and others, that there was no such indebtedness as here claimed existing-against the Chicago & Northeastern Railroad Company. The stockholders of the complainant company apparently purchased in good faith, and without any knowledge or notice of these claims, and after an examination of the books of the company, and upon representations by Mr. Turner that no such indebtedness existed, and after repeated assurances by Mr. Bancroft to Mr. Hickson and others that the right of way was fully paid for, and that- there was no indebtedness against the company except .for current expenses.
The court below found that the bringing of the two ■suits at law was against equity and good conscience, and that the suits ought not further to be prosecuted or maintained. Writs of injunction were issued .out of that ■court perpetually prohibiting the parties from further proceeding in both suits.
These decrees of the court below must be affirmed, with costs.
The other Justices concurred.
Above authorities were cited by counsel for complainant. | [
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Long, J.
This- cause was tried before the court without a jury, and the following findings of fact and law made:
“L That this action was brought to recover the rent of a store building, number 64 West Leonard street, in the city of Grand Eapids, during a period when it was not occupied by the defendants.
That the plaintiff rented to defendants the premises in question for three years from and after the 1st day of April, 1891, at a rent of twenty dollars a month, and for the purposes of a furniture store and undertaking establishment. The lease was in writing, and, as one of the covenants, the plaintiff agreed to put the roof in good repair, and keep it so.
“8. That on the 1st day of April the defendants went into the possession of said premises with their furniture and undertaking business, and during the term they so occupied the same their goods were damaged by water falling on them through the defective roof on the building. The defendants occupied this building in this condition up to the 16th day of July, 1891, but paid the rent thereon up to August 1.
“4. That, soon after the defendants took possession of these premises, they discovered the leaky condition of the roof, and notified the plaintiff to repair the same, which he promised to do, but did not; that in the fore part of May they again notified him to repair the roof, and again on the 11th of June they pointed out to him the damaged mattresses caused by the leaky condition of the roof, yet, after these notifications, the plaintiff did not repair the roof prior to the time when the defendants-moved from said premises, as hereinafter stated.
“5. That, on or about the 6th day of .July thereafter, the defendants stock was again damaged through this defective roof, and on July 11, the plaintiff having failed to repair said roof, defendants mailed to him a notice, of which the following is a copy:
“ ‘To O. B. Pierce, Esq.:
“‘Please take notice that from this day we no longer consider ourselves bound by the lease executed between yourself and us on the 1st day of April, 1891, and that we intend to leave the premises thereby leased to us, for the reason that you have failed to comply with the conditions of said lease to such an extent as to render the same unfit for our business.
“ ‘Joldersma Bros.’ ”
“The defendants inclosed a check with this notice for the rent up to the 1st of August, and after giving this notice, and on the 16th of July, they vacated said premises.
Judgment was entered in favor of the defendants for costs.
Plaintiff brings error.
The errors assigned are that the. court was in error—
1. In finding that, because the roof leaked in the manner described by the undisputed testimony in the case, the consideration of the lease failed.
2. In finding that, under the testimony, the defendants were justified in leaving the premises, and that rent could not be collected thereafter.
3. In entering judgment for the defendants.
The testimony is returned with the record, and we think fully supports the findings of fact. The contention upon the part of plaintiffs counsel is, however, that, under the common-law rule, nothing short of an actual eviction from the premises by the landlord, or through his agency, or by title paramount, or a surrender of the premises by the tenant, and their acceptance by the landlord, will relieve the tenant from his liability for the rent for the full term; that, therefore, it follows that, even though the landlord covenants to repair the prem ises and keep them in repair, his failure to do so affords no bar to an action for rent.
It was found by the court below that the landlord, by express covenant, agreed that he would have his building in suitable condition for the tenants’ business on April 1, the date they were to take possession, and that he would keep the premises in good repair; that he failed in both respects, after several notices to him by the lessees. We think, under the facts found, the case falls within the ruling of this Court in Young v. Collett, 63 Mich. 331; Bostwich v. Losey, 67 Id. 558; and Leonard v. Armstrong, 73 Id. 577.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Per Curiam.
The relator is the owner of 75 shares, of the par value of $7,500, of the capital stock of the Central Savings Bank of Detroit. The bank owns real-estate mortgages to the amount of $206,989.56, and real estate to the amount of $1,500. The value of its capital stock, as determined for assessment purposes, is $105,278.21. The relator and the bank have requested the board of assessors to assess to the bank as real estate the value of these real-estate mortgages, as well as the real estate owned by the bank, and to deduct the value of such, real estate and - real-estate mortgages from the value of the capital stock, as determined by the board of assessors. The board of assessors refused to do this, and have adopted the following resolutions fixing their mode of assessment of real-estate mortgages:
“Resolved, by the board of assessors of the city of Detroit, that all mortgages having the tax clause inserted (known as the ‘long form'), which are held by banks and insurance companies, and ■ all other persons presenting the same, be stricken from the rolls, the property upon which said mortgages are security remaining at the present assessed valuation; and, further—
“ Resolved, that the real estate owned in fee by banks and insurance companies, together with all short-form mortgages, or mortgages not having said tax clause inserted, whether in the city or outside, be deducted from the capital stock, surplus, and undivided profits of savings banks, and the assets above liabilities of insurance companies, as determined by the last report of the Commissioner of Insurance, in conformity with the opinion of City Counsellor Speed, given to the board on March 25, and the subsequent amended opinion of April 6, 1892, advising the board to act in accordance thereto; and, further,
“Resolved, that all banks and insuranc'e companies not reporting the short form of mortgages previous to the 12th inst., the remaining mortgages will be assumed to be long-form or tax-clause mortgages, and no notice of the same will be taken, and the full amount of the personal property will remain as assessed."
A mandamus is prayed, directed to said board of assessors, commanding them—
“To assess to the Central Savings Bank of Detroit, as real estate, the full value of all its real-estate mortgages, and to deduct the value of all its' real-estate mortgages from the value of its capital stock, as determined for assessment purposes, and, if said value of said mortgages and real estate owned by said bank equals or exceeds the said value of the capital stock, then and in that event to place no assessment against said capital stock, or any part thereof, or to the owners thereof on its account."
The facts set up in the petition are not denied by the answer; but the respondents claim that they should not be compelled to deduct from the assessed valuation of the shares of the capital stock anything except the real estate owned by the bank, which is valued at $1,500; that the bank owns mortgages of the value of $168,558.56 on property situated in the city of Detroit, a detailed statement of which has been furnished by the bank to them; that the bank owns mortgages on property situated outside of the limits of the city of Detroit, of the nominal value of $38,431, but they are not informed of the assessed value thereof, if assessed, nor have they been furnished with a detailed statement thereof, nor has any evidence been presented to them, nor have they any information, that the same has been assessed to said bank; that all the mortgages belonging to the bank, above-mentioned, are what is known as “'‘long form” mortgages, and contain the clause usual in such mortgages, whereby the mortgagors agree to pay and indemnify the mortgagees against all taxes, ordinary and extraordinary,, assessed on the mortgaged property; that the respondents have construed said clause as a consent that the entire-interest in the mortgaged premises may be assessed against the mortgagors, and all the property so mortgaged, situated in the city of Detroit, has been assessed by the-respondents to the mortgagors as owners of the entire thereof, and no objection or complaint has been made by the mortgagorsi of the making of such assessment against, them of the entire interest in the property; and that the mortgage interest was not, therefore, assessed to said bank. They admit that they have not deducted any of the above-mentioned mortgages from the value of the bank shares assessed against the shareholders, for the reason that such mortgages are not taxed to the bank.
The writ of mandamus must be granted. Section 2 of Act No. 200, Laws of 1891, provides that, for the purpose of taxation, real property shall include all lands within this State, and all buildings and fixtures thereon and appurtenances thereto, except in cases otherwise expressly provided by law; and any real-estate mortgage, deed of trust, contract, or other obligation by which a. debt is secured, when land within this State is pledged for the payment and discharge thereof, shall, for the purpose of assessment and taxation, be deemed and treated as an interest in the land so pledged. By the same section, property which is to be treated for purposes of assessment and taxation as personal is also named. Among such property are all shares in corporations organized under the laws of this State, when the property of such corporation is not exempt or is not taxable to itself; all shares in banks organized under any law of the United States; but, in estimating the value of such shares, deductions shall be made of the value of all real estate taxed to the bank.-”
In the case of Common Council v. Board of Assessors, 91 Mich. 78, it was held by this Court that it was the duty of the board of assessors to assess to savings banks and insurance companies, as real estate, the value of any real-estate mortgages owned by such bank or insurance company, but to deduct the value of all real-estate mortgages owned by any savings bank or insurance company from the value of the capital stock of such bank, as determined for assessment purposes. It was also held by' us in that case that- it was within the power of the parties to the mortgage to enter into an agreement in the mortgage that the mortgagor should pay the taxes assessed -against the property, and that it was not the purpose of the Legislature, by this act, to limit that power. There is nothing in the act which warrants or authorizes the assessing officers to look into these mortgages for the purpose of determining whether the mortgagor and mortgagee have contracted in reference to the taxes upon the property described in and covered by the mortgage. The duty of the assessing officers is plain,— that is, to assess to the owner of the premises the value of the real estate, less the amount of the mortgage interest, and to assess to the mortgagee the value of the mortgage interest; and whatever the contract may be between the parties to the mortgage in reference to the payment of these taxes is no business of the assessing officer. In Common Council v. Board of Assessors, supra, there was a plain direction as to the duty of the hoard •of assessors of the city of Detroit, and that was to assess to these savings hanks and insurance companies, as real estate, the value of all these mortgages held by them, and to deduct the value of all real-estate mortgages owned by the banks and insurance companies from the value of the capital stock. In what we said, in reference to the validity of the contract between the parties to the mortgage, it was not intended that the assessing officer should make an examination of mortgages, and attempt to carry out that contract by making the assessment any different upon his roll than in the manner provided by the act itself; which expressly directs that the mortgage interest shall in each instance be assessed to the mortgagee.
The writ of mandamus must issue as prayed.
McGrath, J., did not sit. | [
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29
] |
Montgomery, J.
This is an action of replevin for a team of horses, wagon, and harness.
On the 13th of December, 1890, the defendants had taken possession of the property, the defendant Loomis .and one Lull being the assignees of two chattel mortgages executed by plaintiff, — one for the sum of 175, due 11 months from November 13, 1890, with interest at 10 per cent, per annum; and the other for the sum of $45, due li months from November 20, 1890, with interest at the rate of 10 per cent, per annum. Cole was an agent of Loomis and Lull. One Anderson held a third mortgage, covering the same property, and on the 13th of December he made a tender to the defendants, and asked for an-assignment of the two-, mortgages. This was refused, and a few days later he made a tender, without reserve, of $123.65, being the amount of the principal sum due-upon the two chattel mortgages, with interest computed, to the date of the tender, and $2.70 costs of seizure.
It is proper to remark, in passing, that it is doubtful whether, under the circumstances under which this property was seized, it was incumbent upon the mortgagor to tender any costs for the seizure. The defendants first caused the property to be seized on execution, and it appears to have been with some difficulty that the plaintiff's agent was able to ascertain under what" claim they were holding the property at the time the tender was* made. Under such circumstances, it would have, at least, been a question for the jury as to whether they were acting in good faith, and were entitled to exact their costs.
Bach of the mortgages contained a power of sale, which-reads as follows:
“If default be made in such payment, the said Mary J. Boberts is hereby authorized to and shall sell at public or private sale the goods, chattels, and personal property hereinbefore mentioned, or so much thereof as may be necessary to satisfy the said debt, interest, and reasonable expenses, and to retain the same out of the-proceeds of such sale; the surplus or residue, if any, to-belong and to be returned to Myron Shattuck."
This mortgage also contained an insecurity ■ clause,, which provided that—
“ The mortgagee is hereby authorized, at any time-when she shall deem herself insecure, * * * then and from thenceforth it shall and may be lawful, for the said party of the second part, her executors,, administrators, or assigns, or her or their authorized agent, to enter upon the premises of the said party of the first part, or any place or places where the said goods and chattels, or any part thereof, may be, and take possession thereof, and dispose of the same in the manner above specified.”
The trial judge instructed the jury that, if the defendants deemed themselves insecure, they had the right to take possession of this property under this insecurity clause, and further instructed the jury that if Anderson did, in behalf of Shattuck, on the morning of December 15, 1890, tender to Loomis and Lull, or to either of them, the amount due at that time as payment of the debt secured by the mortgages, namely, $120, interest at 10 per cent, up to that time, and the costs that had accrued on the foreclosure proceedings commenced, and such amount was refused by Loomis and Lull, then the lien of the mortgages which they held upon that property was discharged, and the further detention would be unlawful.
It is claimed by defendants that the debt was not yet due by its terms, and that, if the mortgagor sought to discharge the mortgage, he would, at least;, be obliged to tender the amount of the mortgage, with interest to the date of maturity. To admit this contention would he to hold that, in order to release the property, Shattuck would have had to pay the whole amount of the debt, and interest upon a debt that he did not owe, and had paid, for about 10 months. Under this rule it would be for the interest of the mortgagee to deem himself insecure at once, and thus force the debtor, in order to save his property, to pay back the money he had borrowed, and the interest upon it for the time stated in the mortgage, even if it was for five years.
We do not think the mortgage should be so construed. There can be no doubt of the mortgagor’s right to redeem upon paying what the mortgagee would he entitled to realize and retain on a sale. Under the terms of this mortgage, this sum is the “debt aforesaid, with interest and expenses;” and, if he proceeds under the insecurity clause, he is to dispose of the property “as above specified,” and this very clearly includes the application of the proceeds of the sale. The circuit judge was right.
It is claimed that the tender which was made by Anderson was not shown to have been made on behalf of the plaintiff, or was not so understood by the parties. But the circuit judge properly left that question to the jury. In his charge he said:
“The-jury must determine from what was said and done as to what the intention of the parties was. If you should find that what was said and done there on that occasion by Anderson was in his own behalf, and was not in behalf of the plaintiff, as I have already stated, then the tender would not avail the plaintiff anything; if otherwise, good. But if you find that he was acting in behalf of the plaintiff, made the tender for him, and you determine from what was said and done that the object and the information that he conveyed to the defendants was sufficient to apprise them of his purpose, — that is, to discharge the mortgages for and on behalf of the plaintiff, — then that was sufficient.”
This instruction was sufficiently favorable to the defendants.
A careful examination of the record discloses no prejudicial error, and the judgment will be affirmed, with costs.
The other Justices concurred. | [
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Montgomery, J.
This case has once been before the Court, and is found reported in 73 Mich. 138. On the •second trial the plaintiff gave evidence tending to show that she received the note in question as her share of her father’s estate; that it had never been paid; and further testified that, in the spring or summer of 1881, the •defendant came into the house- one morning, and demanded the note. She could not then find it, but •within a few days she did. She testified further:
I don’t remember how many days, — two or three. I ■came in one morningj and said, ‘ I have found the note; ’ and he says, I want to pay for it;’ and I said: I don’t want the money for it; I don’t want to take your money ■out of your business; I am perfectly willing you should ■use it for the present.’ And he threw down a roll of bills on the table, and I said, I don’t want it.’ I was ■out of money at the time. I couldn’t always get money when I wanted it, and sometimes he gave it to me when I didn’t want it; and I picked up two five-dollar bills, and I said, ‘ I will take this, and when I want any more or the rest of it I will call for it;’ and he took the .note.”
The defendant disputed this testimony, and also offered his own testimony to show that, by agreement with Mahlon Wines, this note was never in fact to be paid by him, but was given as the consideration for real estate -deeded to defendant by Mr. Wines as a part of the •estate which would eventually fall to Mrs. Letts. This testimony was objected to, but was received notwithstanding plaintiff’s objection. The testimony was not •competent. The plaintiff’s title was derived from her -deceased father, and it was not competent for defendant to testify as to facts equally within his knowledge. 3 How. Stat. § 7545. The defendant’s counsel disclaimed ■any purpose of showing any want of consideration. If this was not the purpose of this testimony, however, it is difficult to conceive what possible bearing it could have on the issue, except as it tended to prejudice the» 1
Complaint is made of portions of the charge of the-trial judge, as calculated to prejudice the jury against, plaintiff's claim. It had appeared that the note had an indorsement on it, which read, “ Paid June 20, 1881,”' which was in defendant's handwriting, and which was made, presumably, of the date when the note was surrendered, leaving the only question as to that transaction that of under what circumstances the surrender was made. But the trial judge charged:
“The certain payment of ten dollars is disclosed by the evidence to have been paid by him, as she claims, and she says it was in the summer or spring of 1881;. and she must satisfy you of this by a preponderance of evidence, that it was paid to her before May 17, 1881. Now, gentlemen, if there is anything legarding the dates-in this matter, it is your duty to seek to find out, so-that there can be no mistake. If he did go into her place, and place before her sufficient money to take up-the note, and ask for the note, and tell her, ‘Here is-the money,' and if it was prior to the 17th of May, even if it is so she cannot recover, because she did not begin-this suit till the 18th day of May, 1887; so she could not recover under this new loan. I leave it for you to say, under the circumstances. She said here that there is considerable controversy regarding this note, — it had created more or less trouble, — and yet at the same time-she tells you that when he did come to her, and when* he placed this money upon the table, she took out two-five-dollar bills, and handed back the rest to him. I leave it for you to say whether that is natural or satisfactory. If she satsfies you of it by a preponderance of evidence, if you believe her story, then your verdict will be for her; if you believe that any such thing did exist,, and did not exist prior to May 17, 1881, she cannot recover. Mr. Letts says that nothing of the kind took place; that he never paid her a cent; and that she never asked him for a dollar; and that neither he nor she, nor anybody else, ever said a word until after the divorce, when the brother saw him at his office, and was riding- down street. You are to consider all these things. You are to consider the time this thing has been executed. Remember that at the commencement of suit the note was within four days of twenty years old. All these things you have a right to consider, and say if it is reasonaole. If you should find for her because she is a woman, and against the defendant because he is a man, it would not be just, and it would not be right. I know that human nature is human nature, all the world over; but you are bound to consider the evidence, and upon the evidence you must render a verdict.”
This instruction would seem to preclude a recovery if the alleged agreement took place either before or after the 17th of May, 1881. This was doubtless an unintentional slip, but it does not appear to be corrected by other portions of the charge.
The circuit judge also, through inadvertence, no doubt, was betrayed into employing language which the jury might well infer was intended as a clear intimation of his own views on the facts. The charge quoted contains a clear intimation that the story which plaintiff told was unreasonable, and peculiar stress is laid upon the fact that the note was nearly 20 years old when the suit was brought. If it was proper at all for the judge to argue the case to the jury, side by side with this statement of fact, the attention of the jury should have been called to the fact that these parties were, during this time, husband and wife, and that the note had 10 years to run from its date. It is claimed that as the jury answered a special question, as to whether the alleged agreement was made, in the negative, the errors, if any, were immaterial. But we are not prepared to say that these very rulings may not have created a prejudice which resulted in this finding.
The issues in this case were not obscure, and there should have been found no difficulty in keeping to them. They were — First, whether the receipt given by plaintiff to defendant was understood to cover the transaction of this note, and upon this record there was very slight, if any, evidence that it was so considered; second, was the agreement of 1881 made, and was it at a date within six years before the commencement of the suit?
The other points discussed in briefs of counsel are not likely to arise on another trial.
The case should be reversed, with costs, and a new trial ordered.
Morse, C. J., Long and Grant, JJ., concurred. McGrath, J., did not sit. | [
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] |
Montgomery, J.
Complainant filed a bill in the circuit court of Jackson county, in chancery, to reform a mortgage, and to foreclose as reformed. The defendant McCain holds a second mortgage covering the same property, including that which is claimed to have been omitted by mistake from complainant’s mortgage.
The facts are that the defendant Harrington owned and occupied a farm in Spring Arbor' township, which was covered by a previous mortgage to complainant. The mortgage in suit was given as a renewal of a former mortgage, and was intended to cover the same land. By mistake in drafting the same, one 40 of the farm was omitted, and in its stead a 40-acre lot a quarter of a mile distant, and which was not owned by defendant Harrington, was described. So far the facts are not disputed. But defendant McCain claims to have received his mortgage without notice, and to have parted with value for the same. The complainant’s testimony tends to show that defendant McCain came to his (complainant’s) residence before the mortgage was given to defendant McCain, and complainant then told him, in substance, that he had a mortgage on the Harrington farm, and that some said that there was a mistake in it. McCain replied that he could figure it out, and complainant thereupon produced the mortgage, and McCain seated himself at the table, and examined it carefully. Shortly after this the mortgage was executed to the defendant McCain. He was entirely familiar with the Harrington farm, and it appears beyond question that Harrington at the time he executed the mortgage to him understood that the complainant’s mortgage covered the entire farm. In addition to this, the mortgage executed to McCain described the land as follows:
“The north-west quarter of the north-east quarter of section fifteen, town number three south, range two west, Jackson county, Michigan; and the west half of the south-east one-fourth of section ten, town three south, of range two west, containing eighty acres, according to the Hnited States survey, Jackson county, Michigan, subject to a mortgage of 12,480, recorded in Liber 78, p. 62, in register’s office of Jackson county, State of Michigan.”
Defendant McCain, it is true, claims that this provision that the mortgage taken is subject to the prior mortgage of complainant was intended to relate only to the last description; but it is evident that Harrington did not so understand.
"We have carefully examined the evidence offered on behalf of\defendanfc McCain, and are not satisfied that the defendant was a good-faith purchaser. On the contrary, we think the decree of the circuit judge, which was in favor of the complainant, is supported by the decided weight of the credible testimony, and should be -affirmed, with costs.
The other Justices concurred. | [
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Potter, J.
Plaintiffs sued the defendant, General Casualty & Surety Company, a corporation, on the appeal bond given in Lee v. Stratford Arms Hotel Co., 236 Mich. 520, to recover damages for the alleged breach of condition thereof. The bond provided :
“The condition of this obligation is such that if the above bonnden Arthur Y. Lee shall diligently prosecute his said appeal to effect and shall perform and satisfy such decree or order as the supreme court shall make in said cause and shall pay all costs to the said Stratford Arms Hotel Company, Paul L. Hamper, and Louis Hamper therein that the said supreme court shall award to be paid by him, the said Arthur Y. Lee, and in the event of the affirmance of the decree of the-lower court, the plaintiff, Arthur Y. Lee, shall pay at once to the defendants entitled thereto, all the rents collected by him not legally and properly disbursed and shall pay all damages resulting from negligence during the time he occupied it (the said Stratford Arms Hotel Building) from the date of the decree — and that it is intended to describe ‘negligence’ as a failure to collect rents and the failing to lease any part of the building as well as any other negligence in its care or management—
“Then this obligation shall be void, otherwise to remain in full force and effect.”
At the conclusion of the testimony attorneys for the plaintiffs and defendant moved for a directed verdict. The court directed a verdict of no cause of action as to the defendant General Casualty & Surety Company; of no cause of action as to Paul L. Hamper and Louis Hamper > a verdict in favor of Arthur Y. Lee, intervening defendant, against the Stratford Arms Hotel Company for $9,652.83. The case is here on error and by appropriate assignments, various questions are raised, hereinafter discussed,
Appellants discuss at length, the proper construction to be placed on the language of the condition of the bond, above quoted. There is no question as to the general rule that the language of the bond should receive that construction most reasonable to effectuate the intention of the parties, in view of all the circumstances of the case and the purpose and object of the bond. At the time the bond was given, the intervening defendant, Lee, was in possession of the Stratford Arms Hotel under a lease. He was taking an appeal to the Supreme Court in Lee v. Stratford Arms Hotel Co., supra. The bond contemplated he should continue to occupy the hotel in the usual and ordinary manner. He was to continue to operate the hotel. He was to be liable under the bond in case he negligently failed to operate and in case he negligently failed to rent the rooms in the hotel when he had an opportunity so to do. There is no proof in the case he failed to lease the premises for occupancy whenever he had an opportunity to lease the same. He was not bound to do the impossible. In order to lease the rooms or apartments it was necessary that persons apply for or consent to take the same. There is no proof he negligently failed to collect rentals from persons who occupied the premises. There is some proof the rooms and apartments in the hotel were not fully occupied all the time and proof there was much competition in the hotel business In the city of Detroit during the time the intervening-defendant occupied the, Stratford Arms Hotel. There is no proof the intervening- defendant did not pay over and account for all of the rents, issues, and profits of the hotel which carné into his possession, not legally and properly disbursed by him.
The lease under which the intervening defendant was in possession provided, among other things:
“As rental for the said hotel building the lessee shall pay to the lessor the entire net income derived from the operation by him of the same after the deduction of ten per cent, of the gross income after deduction of all of the fixed charges hereinafter mentioned, which said ten per cent, of the gross income, after deduction of such fixed charges, may be retained by the lessee as compensation for his services in connection with the supervision and management of the premises, provided, however, that such compensation to be so retained and paid to the lessee shall not exceed five thousand ($5,000) dollars per year. ’ ’
The intervening defendant sought to recover in this case the amount which he claimed to be due to him under the provisions of the lease, as compensation for his services in connection with the supervision and management of the hotel during the period of his occupancy, together with interest thereon, plus certain costs growing out of the case of Lee v. Stratford Arms Hotel Co., referred to.
There is no question about the accuracy of the computation, nor is any question raised but that the intervening defendant’s right to recover the damages for which judgment was rendered in his favor was properly alleged in his notice of recoupment and supported by the testimony introduced.
Appellant contends it sued the surety upon the bond; that' the intervening defendant Lee ought not to have been permitted to intervene upon his own motion; and that the court was in error in permitting him to intervene. Under the common law no right of intervention existed. Chase v. Washtenaw Circuit Judge, 214 Mich. 288. Intervention was borrowed from the civil law. 33 C. J. p. 476. Such right did not exist in this State prior to the adoption of the statute of 1915. Peterson v. Swenningston, 178 Mich. 294; Chase v. Washtenaw Circuit Judge, supra. The statute, 3 Comp. Laws 1915, § 12362, provides:
“In an action either at law, or in equity, anyone claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding. ’ ’
In Weatherby v. Kent Circuit Judge, 194 Mich. 46, suit was brought against the surety on a bond. Upon the principal’s application he was permitted to intervene. Mandamus was brought to set aside the order of the circuit judge permitting such intervention. This court said:
“The question is, Should he be given the opportunity to defend an action in which he has a clear legal interest, having obligated himself to pay whatever judgment is rendered against him to the defendant? * * * the proposed intervener, has a direct interest in the subject involved in this suit and in any judgment that may be rendered, # * *. * * * it is the design of the provision of the judicature act under discussión to prevent a multiplicity of suits, we are of the opinion that the trial judge acted properly in granting the prayer of the petition and in permitting intervention.”
There can be no surety without a principal. The obligation of the principal for which the surety is secondarily or collaterally liable must be a valid and binding obligation of the principal. 32 Cyc. p. 23.
‘ ‘ There is always at the least an implied contract between the parties which obliges a principal to reimburse his surety when the latter has paid the debt ; he then becomes a creditor of the principal, and, the debt having matured and being due, is entitled to recover from the latter the amount so paid, even though the creditor was not hound to respect the suretyship; nor are the rights of sureties against their principal affected by any private arrangement among themselves for the distribution of the liability, or by the particular manner in which the relation arose.” 32 Cyc. p. 250.
It is peculiarly proper, therefore, in cases where suit is brought directly against the surety on a bond, that the principal, as the real party in interest, should be permitted to intervene and participate in the proceedings, especially in view of the statute which provides that every action should be prosecuted in the name of the real party in interest. 3 Comp. Laws 1915, § 12353.
In a suit brought by the trustee in bankruptcy of a contractor against a school district to recover from it the amount due such contractor, the surety on the contractor’s bond was held entitled to intervene, it having a direct financial interest in the outcome of the litigation. McMillan v. School District, 200 Mich. 280. We think the intervener was properly admitted to defend. He not only claimed to have, but according to the decision of the trial court, did have, such an interest in the litigation as to be entitled to assert his rights in this proceeding.
It is claimed that, because his intervention must be in subordination to and in recognition of the propriety of the main proceeding, he had no right to proceed to an affirmative judgment against plaintiffs under his notice of recoupment. After defendant Lee was permitted to intervene, he was a party to the litigation, interested in its proper disposition, and had a right to give notice of recoupment, introduce proof to sustain the damages alleged to have been suffered by him, and to have judgment therefor, i£ entitled, thereto, on the-proof, to follow the case here and he heard prior to the judgment of this court.
In Van Hoene v. Barber, 215 Mich. 538, intervention was had in a suit in equity. Subsequently the case was transferred to the law side of the court, in pursuance of the statute, 3 Comp. Laws 1915, § 12351, on an application joined in by the intervener. It was there said:
“It is urged that the transfer should be made only upon the application of the plaintiff. This contention overlooks the fact that when a defendant is a party to a litigation he is just as much interested in having it finally decided as is the .plaintiff. The contention also overlooks the interest the public has in having its courts freed from the necessity and expense of two or more lawsuits, when one will answer every purpose. The language of the statute is broad enough to safeguard the rights of all parties interested in the litigation. The language is clear, explicit and unambiguous and should be given effect. Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, 209 Mich. 380; Courtney v. Youngs, 202 Mich. 384.”
The object of the statute permitting recoupment is to reduce litigation, save a multiplicity of suits, conserve time, money, and property from the hazard and uncertainty of trials, and the object of the statute permitting intervention is substantially the same, in permitting to be brought before the court the parties in interest in litigation.
In this case both parties moved for a directed verdict at the conclusion of the testimony, and the trial court directed a verdict as hereinbefore stated. In Bank of Saginaw v. Railway Co., 235 Mich. 399, it is said:
“Counsel for the plaintiff contends that the court was in error in holding, as a matter of law, that the plaintiff was ‘chargeable with knowledge or notice of the presence of the letters “SLC” upon the bill, limiting the liability of the defendant company. ’ If there were any merit to this contention it is now of no avail to the plaintiff, because he asks for a directed verdict. Both parties requested the court to direct a verdict and neither can now claim that there was question of fact for the jury.”
In Hemphill v. Orloff, 238 Mich. 508 (58 A. L. R. 507), it is said:
“Both parties asked without reservation for a directed verdict. Defendant’s counsel insist that this amounted to a request that the trial court find the facts. We recognize this as being the rule in the Federal courts, but it is not the rule of this court. Both parties having asked for a directed verdict in the court below, neither- may insist here that the case should have gone to the jury. The rule of this court is thus tersely stated by Mr. Justice Clark in Hannan Real Estate Exchange v. Davis, 238 Mich. 257:
“ ‘If the court’s decision, both parties having requested directed verdict, is right in law and supported by substantial evidence, the judgment must be affirmed.’ ”
We think the decision of the trial court was right in law and supported by substantial evidence. The judgment of the trial court is therefore affirmed, with costs.
Clark, Sharpe, North, and Fead, JJ., concurred. Wiest, C. J., and Butzel, J., concurred in the result. McDonald, J., did not sit. | [
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Wiest, O. J.
The two cases, here consolidated, are injunction bills, in behalf of the city of Ann Arbor, and by property owners, to restrain defendant from violating a zoning ordinance, to prevent an alleged threatened nuisance, and to enforce a setback line and driveway agreement running with defendant’s title. In the circuit court the zoning ordinance was found applicable, and, for that reason, defendant was enjoined from building a gasoline filling station upon its property at the intersection of Washtenaw and South University avenues, in the city of Ann Arbor. Defendant appealed. Defendant’s negotiations for the property resulted in its purchase under land contract on May 24,1928. Anticipating the purchase, defendant arranged for building material and filling station accessories. In September, 1923, the city, by zoning ordinance, placed the property together with other property in the class for business. May 25, 1928, defendant applied for and upon submission of plans was granted a permit to construct a gasoline filling station on the property. At once the work of construction and its preliminaries commenced, the concrete steps of the dwelling house were removed, the private walk taken up and excavation for the building walls started. It is also claimed that four trees were removed by special employees, but it is uncertain whether this was done then or later. May 26,1928, at about the noon hour, notice was given to defendant by the city engineer that the permit had been revoked. The city engineer testified that he revoked the permit because his attention was called to the setback line and driveway agreement running with the land. August 6, 1928, the city council amended the zoning ordinance by placing the premises in the class for residences. A short time previous to the adoption of the zoning ordinance in 1923, the then owners of the property in question executed and delivered to the city an agreement establishing a setback line and barring a' business driveway entrance from Washtenaw avenue. This agreement was made to run with the land and was recorded and defendant’s land contract was made subject to its terms. We think that the city, by subsequent zoning ordinance placing the premises in the class for business, is now estopped from invoking the inconsistent provisions of the setback and driveway agreement and the other plaintiffs are equally barred. The permit was issued in true accord with the zoning ordinance then in force, and, if substantial work was commenced and performed thereunder, the city was precluded from revoking the permit and later amending the ordinance with reference solely to this property and have it accorded retroactive effect. We think the work commenced toward the construction of the building, the purchase of material and accessories, and the sums expended for labor bring the case within the exception noted in City of Lansing v. Dawley, 247 Mich. 394. Plaintiffs contend that, on account of the traffic now using two streets intersecting at that point, and another street close by, making the corner one of five points, and the fact that the place is in a depression in the streets, the filling station will constitute a nuisance by increasing the hazard to school children, university students, pedestrians, and users of automobiles. It is well settled that a gasoline filling station is not a nuisance per se. The argument that a filling station at that point will prove a nuisance per accidens should have been addressed to the city legislative body at some time during the nearly 5-year period that the zoning ordinance classed the premises for business use. If the filling station proves to he a nuisance per accidens, then as we said in Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261, it may call for regulation. The cases from other jurisdictions, cited in the briefs of counsel, disclose such an irreconcilable divergence of opinion that we content ourselves with our holding in the Dawley Case. Under the zoning ordinance and the regular permit issued, defendant did not proceed and expend money at the peril of revocation of the permit and change of right by subsequent amendment to the zoning ordinance. The decrees are reversed, and the bills dismissed, with costs to the defendant.
Btjtzel, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
Sharpe, J.
The parties hereto were married on September 23,1903, and lived together until March 3, 1928. On April 7th following, a separation agreement was executed by them which provided for a division of their property and the care, custody, and education of.their youngest daughter, Bernice, then 15 years of age.
On March 20, 1929, the husband filed his bill for divorce, alleging extreme cruelty on the part of his wife. Her answer is a denial of the charge. The proofs were taken in open court. The trial judge found that defendant’s conduct in her associations with other men was such as to cause “a public scandal” in the community in which they lived, and granted him a decree, from which defendant has appealed.
It will serve no useful purpose to set forth in detail the evidence supporting this finding. It is sufficient to say that it was warranted, and that defendant’s explanation of her conduct is in no way convincing that she was acting the part of an affectionate or dutiful wife, as she now claims to have been.
The decree confirmed the property settlement above referred to. No proof was offered tending to show that its execution was procured by fraud or duress, or that it was not a fair division and adjustment of their property interests. It is affirmed, but without costs.
Wiest, C. J., and Butzel, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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McDonald, J.
This is a hearing on an order to show cause why the writ of mandamus should not issue to compel the defendant to vacate an order denying a petition for a delayed appeal from an order of the probate court. The plaintiffs are heirs at law of Henrietta Goik, deceased. William Goik, Sr., husband of Henrietta, survived her. He was appointed administrator of her estate, but died shortly thereafter. ' William Goik, Jr., succeeded him. A commissioner on claims was appointed. He filed his report bn March 1,1928, setting forth that no claims had been presented. On October 24, 1928, a petition was filed by Margaret Goik in behalf of herself, Clara Goik, and William Goik, Jr., representing that they had a claim against the estate for funeral expenses, and asking for an order reviving the commission. The court made such an order. A hearing was had on the claim, and it was allowed by the commissioner. The plaintiffs complain that the order reviving the commission was ex parte, that it was not published, that-no notice was served on them-, that they had no knowledge of the proceedings until after the time for appeal therefrom had expired, and that they had no opportunity to contest the claim, which was not a proper charge against the mother’s estate. On the hearing of the petition, the circuit judge refused to allow the appeal on the ground that the plaintiffs are not without default and that justice did not require a revision of the case.
The statute relative to belated appeals from the probate court, 3 Comp. Laws 1915, § 14156, reads as follows:
“(14156) Sec. 12. If any person aggrieved by any act of the judge of probate, or by the determination of commissioners on claims, shall from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably. ’ ’
The proceedings to revive the commission were regular and in accordance with the usual practice. They may be ex parte and without notice. Seilnacht v. Wayne Probate Judge, 201 Mich. 536, and cases cited.
In his return the circuit judge says:
“This defendant admits that the order reviving the commission on claims for a period of 30 days was granted ex parte and was never published, all of which is in accordance with the statute. Defendant denies that petitioners had no notice of said proceedings inasmuch as the probate records are public records and they had access to the same, and inasmuch as they were represented by legal counsel and they, themselves, in their affidavits filed with the petition for special leave to appeal admit that they kept tab upon the proceedings in the estate of Henrietta G-oik and particularly so state, and inasmuch as the records of said estate show that in the month of October, to wit: The 15th day of October, 1928, through the instigation of plaintiffs, a citation was issued out of the probate court ordering the administrator de bonis non to file his final account. Following this order the administrator de bonis non filed his first account on the 24th day of October, 1928, the same day when the petition for reviving the commission was filed. ’ ’
On this finding of facts, the trial court held that the plaintiffs were not without default.
The claim allowed by the commissioner was for the funeral expenses of Henrietta Groik, deceased. It amounted to $1,361.50. It is the contention of the plaintiffs that, as the husband was living at the time of his wife’s death, he was liable for the funeral expenses, and that therefore they are not properly chargeable against her estate. The trial court found, as shown by the return, that the debt for funeral expenses was incurred in accordance with an agreement between the children, including the plaintiffs, that the expenses should be paid out of the estate of the mother. At that time the father was very sick with cancer. He had no income and no property except the homestead. So the children agreed that the funeral expenses should be paid out of their mother’s estate. The claim was allowed by the probate court as a charge against her estate and has been paid. In view of these facts, as shown by the return, the court was of the opinion that justice did not require a revision of the case.
In regard to these belated appeals, this court has said many times that it will not disturb the de termination of the circuit Judge unless it finds a clear abuse of discretion. Taylor v. Bay County Judge, 234 Mich. 363, and cases cited.
In the instant case, there was no abuse of discretion. The plaintiffs were not without default. By-agreement the debt for their mother’s funeral expenses was to be paid out of her estate. It was so paid, and payment was approved by the probate court. In view of these facts, the trial court did not abuse his discretion, but showed good judgment in stopping further litigation over a small estate.
■ The writ is denied, with costs against the plaintiffs!
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Sharpe, J.
(dissenting). The proofs in these cases were submitted together in the trial court. The legal questions presented are similar, and the facts so nearly so, that they máy be disposed of in one opinion.
What is known as the “Budd Drain” extends across a part of the southern part of Arenac county, dips slightly into the northern part of Bay county, and empties its waters into Saginaw Bay at the east. The proceedings relative to its establishment are not questioned. ' The drain law was amended and codified by Act No. 316, Pub. Acts 1923. Certain amendments have since been made, not material to the issue here presented. Our references will be made to the provisions of that act. After the final order of determination shall have been made, it is the duty of the commissioner (chap. 6, § 1) to apportion the per cent, of the cost of construction which shall be borne by any township, city, highway, or any piece or parcel of land benefited thereby. “All apportionments of benefits * * * shall be upon the principle of benefits derived” (section 2), and the several descriptions of such lands shall constitute the special assessment district on which a tax shall be spread in the amounts so apportioned (section 3). Any owner of such lands may secure the appointment by the probate court of a board of review, the members of which, after due notice, shall review the determination of the commissioner, and, after hearing such proofs as may be submitted and viewing the lands benefited, shall make such order ‘ ‘ as they may deem just and equitable,” and “the action and decision of said board shall be final” (section 7).
Pursuant to these provisions, the drain commissioner of Arenac made an apportionment in writing of the benefits the several descriptions of land in that county would derive from the construction of the drain. Review was had on petition of the plaintiffs, and the apportionment confirmed by that board on June 11, 1928. On January 9, 1929, plaintiffs filed their bills of complaint herein, setting up the facts relating to the establishment of the drain and the apportionment of benefits, and praying that the assessment therefor be set aside on the ground that the action of the commissioner and the decision of the board of review were “illegal, unlawful, fraudulent, arbitrary and discriminatory.” After answers and proofs taken in open court, decrees were entered dismissing their bills, from which appeals have been taken.
The estimated cost of the drain is $35,000. The commissioner.apportioned benefits as follows: To the township of Standish, 17.90 per cent.; to the township of Lincoln, 4.49 per cent.; to the Michigan Central Railroad Company, 11 per cent.; to the Detroit & Mackinac Railway Company, 12 per cent.; to the State highway 1 per cent., and the balance to the remaining lands in the drainage district. The farming lands were divided into four zones. One-half of one per cent, of the cost was apportioned to the 40-acre tracts bordering on the drain, one-fourth to those next back, one-eighth to those next back, and one-sixteenth to those at the rear of the drainage district. The tax on these would be $4.37, $2.18, $1.09 and 55 cents per acre, respectively. Plaintiffs’ rights of way are 100 feet in width, and about 9 acres of each of their lands are within the district.
Chapter 13 of the act, as amended by Act No. 331, Pub. Acts 1927, provides that, in cases where the drain will cross the right of way, the ‘ ‘ damages and compensation” to be awarded to the railroad company “shall include the legal damages for the making of the opening required in the drain proceedings, ’ ’ and after they have been determined it .becomes the duty of the company to make such opening when notified to do so by the commissioner. The damages to which the plaintiffs are entitled have been fixed at the sum of $3,200 for the Michigan Central Railroad Company, and $3,500 for the Detroit & Mackinac Railway Company.
The contention of the attorneys for the plaintiffs seems to rest upon their claim that, as the assessment upon the farming lands was levied according to acreage, the same plan should have been followed as to the railroad property. Assessments must be levied according to benefits. The commissioner and board of review inspected the lands. We must assume that in their opinion the character of the farming land assessed was so nearly similar that an assessment of a fixed percentage per acre was fairly representative of the benefits to be derived from the construction of the drain, particularly as the record contains no proof to the contrary. The acreage, however, in plaintiffs ’ rights of way was no fair criterion on which to base their assessments. The construction of the drain necessitated new culverts in the right of way of both plaintiffs. That these cul verts will be of much benefit to their property cannot be doubted. It quite clearly appears that those now in use but inadequately take care of the fio wage at high water. The roadbed of the Michigan Central Railroad Company is constructed of sand and cinders about three feet in height, while that of' the Detroit & Mackinac Railway Company is gravel and earth about two feet high. They run parallel with the shore line of Saginaw Bay. That these roadbeds obstruct the natural drainage of the lands to the west cannot be doubted. When the water is high, the latter road is occasionally overflowed.
That the property of the plaintiffs will receive a greater percentage of benefit than the farming lands seems clearly established. The question is, How much more? New culverts must be constructed. Plaintiffs'’ claims for remuneration for the cost of these have been allowed, and will be paid to them. The fact that the amount apportioned to them for benefits bears some relation to the allowance therefor, while suggestive, is in no way convincing that the commissioner and board of review sought in this way to recoup the amounts to be so paid. Comparison is made with the apportionment for the State highway, which parallels the Michigan Central Railroad. This highway was constructed but a few years ago, and provision for its drainage was then made by the construction of a culvert large enough to afford passage for the waters in the drain when constructed.
Mr. Baikie, the then drain commissioner of Arenac county, had had long experience in the construction of drains. Both he and Mr. Selle, the only member of the board of review called as a witness, testified that they used their best judgment in deciding upon the percentage of cost which the plaintiffs ’ property should bear. They admitted that they took into con sideration the necessity for the construction of new culverts and the cost thereof. In view of. the physical condition of the plaintiffs ’ properties, the necessity of adequate drainage is self-evident, and it clearly appears that it can best be secured by means of proper culverts through which the waters of this drain may flow. For this reason the cost of these culverts can be said'to be somewhat indicative of the benefit which the respective railroads will derive from the construction of this drain.
Section 9 of chapter 10 provides that the court in which any proceedings are begun to enjoin any tax or assessment “may correct any gross injustice in the award of damages, or assessment of benefits, as may appear after hearing the proofs and allegations of both sides and shall make such order in the premises as shall be just and equitable.” The plaintiffs here claim that a gross injustice was committed in the assessment .of benefits upon their properties. Under the provision above quoted, the burden would seem to rest upon them to submit such proofs as would enable the court to correct this injustice and substitute a fair and equitable assessment for that made by the commissioner. • While the engineers of both companies were sworn as witnesses, no inquiry was made of them as to the manner in which the apportionment for benefits should have been made or the percentage which should have been allotted to the respective companies, nor was any other proof submitted bearing thereon.
The integrity of the commissioner and board of review is not questioned. The right of the plaintiffs to relief rests upon the claim that the apportionments were arrived at by applying an erroneous theory of benefits, and are so out of proportion to that allotted to other lands that we should say they are fraudulent. This we are unable to do upon the records presented.
In Hudlemyer v. Dickinson, 143 Mich. 250, 256, in which a similar question was presented, it was said:
“Although a court in chancery can grant relief in this case on the ground of fraud, it cannot sit as an appellate court to review questions of regularity or charges of error in the drain commissioner’s proceedings not affecting the jurisdiction nor substitute its judgment and discretion for that of the officers to whom it has been by law confided.”
The decrees should be affirmed, with costs to appellees.
North and Fead, JJ., concurred with Sharpe, J.
Clark, J.
The farm lands are divided without regard to improvement or value into four classes, and assessed $4.37, $2.19, $1.09, and $.55 per acre in the order named. Railroad land or right of way is assessed on a different basis. The rate against the railroads is from near 100 to nearly 800 times greater than the rate against farm lands. The Michigan Central Railroad is assessed for benefits in Arenac county on about nine acres nearly $3,850, approximately $450 per acre. The Detroit & Mackinac Railway is assessed for benefits in Arenac county on about six acres nearly $4,200, approximately $700 per acre. Adjacent to this 100-foot railroad right of way of nearly six acres against which the apportionment is 12 per cent, of the cost of the drain is a 66-foot right of way of the Consumers Power Company, against which the apportionment is but .0088 per cent., less than l/1000th as much as that of the railroad. Why this marked difference in favor of the power property and against the railroads, and in favor of the farms and against the railroads? There seems to be no answer except the following: A culvert was required where the drain crosses each railroad right of way. The cost thereof must be included in the estimate for the drain as a part of the necessary expense of construction. It was so included, to the Michigan Central Railroad, $3,200, to the Detroit & Mackinac Railway, $3,500. It is apparent that the approximate cost of these culverts was in fact unlawfully charged back against the respective railroads as a part of the apportionment and assessment.
Drain Commissioner Baikie testified:
“Did you consider the culvert to be put across the railroad as one of the'benefits to the railroad?
“A. No, I did not consider the cost of the culvert as being a benefit.
“Q. I did not ask you — the culvert to be put in there, did you consider that a benefit to the railroad?
“A. I considered it would be a benefit to the railroad.
“Q. Did you consider it would be a benefit to anyone else besides the railroad?
“A. No.
“Q. Do you think the railroad should pay for. its culvert?
“A. Ido.
“Q. In making your assessments, did you make it with the idea that the railroad should pay for all of the benefits received in this drain including the benefits of the culvert to be placed there?
“A. Yes.”
Mr. Selle, a member of the board of review, testified:
“A. We figured, that the railroad got that road through there, and this culvert was not large enough, and we figured that for the benefit of the railroad.
“Q. Now, supposing, Mr. Selle, that there has been a culvert at the point of this drain beneath the railroad tracks of substantial construction of the size provided in the specifications of the drain; in other words, supposing that there was already there a sufficient culvert so that not a dollar would have to be spent in enlarging it, if you had found that condition to exist, would you have assessed the Detroit & Mackinac 12 per cent. ? * * *
“A. No, I would not. I do not think we would have assessed this.”
The assessments against the railroads may not have been intended as a fraud, but they amount to that.
In Kansas City Southern Rys. Co. v. Road Imp. Dist., 256 U. S. 658 (41 Sup. Ct. 604), benefits were assessed against plaintiff $7,000 per mile of main track, $67,900. Farm lands were divided into five zones and assessed $12, $10, $8, $6, and $4 per acre, in the order named without reference to value or improvement. Some other property was assessed on a like plan. The assessment was challenged as arbitrary and in violation of the due process and equal protection clauses of the 14th Amendment. It was there held that there was discrimination so palpable and arbitrary as to amount to a denial of equal protection of the law.
The assessment in the case at bar is so palpably arbitrary and in effect fraudulent that no further authorities need be cited.
That we may not sit in review of the judgment of the commissioner and the board of review does not leave us powerless to do equity.
We can and should set aside the assessment against the properties of plaintiffs and send the proceeding back for a new assessment.
The decrees are reversed, with costs, and decrees entered for plaintiffs in accordance herewith.
Wiest, C. J., and Butzel, McDonald, and Potter, JJ., concurred with Clark, J. | [
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North, J.
Richard A. Brow brought suit against the Gibraltar Land Company, a Michigan corporation, to recover $406.87 paid to defendant as part of the contract price of a lot which plaintiff purchased of defendant. He had judgment, and defendant reviews by writ of error. Plaintiff based his right of' recovery upon the failure of defendant to construct streets and bridges and to dredge certain canals, for which provision was made in plaintiff’s contract to purchase. The defendant company had platted 300 acres of land, of which plaintiff’s lot was a part. It had undertaken to make certain improvements on this subdivision, and an agreement so to do was embodied in the contracts under which lots were sold. While the defendant was engaged in making these improvements, Brownstown township, in which the land was located, filed a bill in equity and enjoined the prosecution of the work on the ground that the streets and bridges were not being properly constructed. The sale to plaintiff was made while this litigation was pending and the injunction in force. Plaintiff had no knowledge of this litigation or the outstanding injunction nor was he advised in any way relative thereto by defendant’s agents through whom he contracted to purchase his lot on August 30, 1926: As noted above, work on the pro posed improvements had already been suspended, and nothing further was done to make these improvements in the vicinity of plaintiff’s lot up to the time suit was instituted in October, 1928. Practically nothing seems to have been done by defendant to dispose of the litigation instituted by the township or to secure a dissolution of the injunction.
Plaintiff claims he purchased the property for the purpose of using it as a storage place for boats; but that he was entirely deprived of its use because it was wholly inaccessible on account of defendant’s failure to construct the canals, streets, and bridges as provided in the contract. He testified that he repeatedly requested defendant to make these improvements, that defendant as often as approached promised the improvements would be made, but nevertheless nothing was done. Plaintiff’s theory is that since this contract did not specify a definite time within which the defendant should make the improvements therein provided, the work should have been prosecuted with diligence and completed within a reasonable time; that since this was not done he had a right to rescind and to bring this suit to recover sums paid on the purchase price.
The defense is urged that plaintiff’s agreement to pay for the lot in question and defendant’s undertaking to make the improvements were dependent covenants, and since, under plaintiff’s contract he was given five years within which to pay for the lot, it would follow that the defendant had a like period of five years within which to perform its part of the contract. The defense is also made that plaintiff could not rescind his contract to purchase without paying it in full. Presumably this is urged on the theory that one who is in default in his contract payr ments, as plaintiff was, has breached the contract and for that reason will not be allowed to rescind. Neither of defendant’s contentions is tenable. Plaintiff’s contract provided “time is the essence of this contract,” and that plaintiff had the right to immediate possession of the property. Had his purpose been to erect a dwelling on this lot rather than to use it as a storage place for boats, it would obviously be absurd to hold that defendant’s contract as'to constructing the streets and other means of approaching this property should be construed as not requiring performance until the full expiration of the five years within which the vendee contracted to make payment. In the absence of a provision fixing a specific time within which the defendant was to* complete the improvements, the law requires them to be made within a reásonable time. Greenwood v. Davis, 106 Mich. 230, and Reinforced Concrete Pipe Co. v. Boyes, 180 Mich. 609.
The facts above stated clearly disclose defendant’s failure to prosecute the construction of these improvements with reasonable diligence, and this breach of the contract by the defendant was such as justified rescission. Lackovic v. Campbell, 225 Mich. 1.
Plaintiff had the right to rescind without paying or tendering payifient of the unpaid portion of the purchase price notwithstanding he was in default in his contract payments. There had been no notice of forfeiture. His contract was in force. Full performance thereof would merely have consisted in his paying more, and upon rescission the defendant would then have been required to repay to plaintiff a correspondingly larger sum. Plaintiff timely tendered a reconveyance of any interest he had acquired through his contract to purchase. In rescinding because of defendant’s failure to perform, plain tiff acted within his legal rights. The judgment entered in the lower court is affirmed, with costs to the appellee.
Wiest, C. J., and Bittzel, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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Potter, J,
July 22,1929, plaintiff, assignee of the Trinity Building Company, a corporation, vendor in a land contract, covering Detroit real estate, claiming the vendees therein, Leo Rodgers and Agnes Rodgers his wife, were in default in making monthly payments of instalments due thereon, commenced suit before Hon. Ralph Liddy, a justice of the peace, against them for the recovery of the same. Defendants appeared, pleaded the general issue, and the lawsuit was set for trial for August 21,1929. Before that time vendees filed a bill in equity in Wayne circuit court against the Trinity Building Company, Northwestern Investment Company, and plaintiff herein, alleging the making of the contract; that vendees entered into possession thereunder, the same was procured by fraud and false representations described in the bill of complaint, the vendees had paid $1,950 on the signing of the contract and $57.50 monthly. They offered to surrender possession of the premises, and demanded repayment of all money they had paid or that had been credited to them on the contract, less the reasonable rental value of the premises during their occupancy. The bill alleged the Trinity Building Company was attempting to assign the contract to innocent purchasers for value to perpetrate a fraud upon vendees; that plaintiffs feared defendants therein would dispossess them of the premises, and alleged they had actually started foreclosure proceedings against the contract purchasers of other lots in the same subdivision, and prayed that plaintiffs therein, the vendees under the contract, be relieved from any forfeiture or any money paid or credited to plaintiffs on the land contract less the reasonable rental value thereof during their tenancy, the vendees have an equitable lien on the premises for the amount so found to be due, the premises sold for the satisfaction of such lien, and that an injunction issue to restrain defendants and each of them from selling and disposing of or incumbering the premises, and from taking any action to collect on said contract or dispossess vendees.
Upon the filing of the bill of complaint above described, an injunction was issued and served upon defendant Quail, who is plaintiff herein, on or before the day fixed for the trial of the case before the justice. Defendant' Quail, who is plaintiff herein, filed an answer to the bill of complaint claiming to be a bona fide purchaser for value, without notice, of the lot covered by the contract, and he at that time received an assignment of the land contract wherein plaintiffs were vendees, and moved to dissolve the injunction.
Upon the hearing of the motion to dissolve the injunction, the court ordered the injunction be dissolved unless plaintiffs file a bond by September 5, 1929, in the penal sum of $100, conditioned that plaintiff should, if so ordered by the court, pay the 1929 city taxes on the premises. Plaintiff herein seeks mandamus to compel the circuit judge to set aside this order, and claims the bill was filed and the injunction issued and continued in violation of 3 Comp. Laws 1915, § 12662, and that before the chancery case can be reached for trial immediate and irremediable injury will be done him, and for other relief. The answer and return of the circuit judge sets up a letter from plaintiff here as secretary of the Northwestern Investment Company under date of April 30, 1929, as follows:
“Mr. Leo A. Bodgers,
“17365 Trinity Avenue,
“Detroit, Michigan.
“Dear Sir:
“We would appreciate receiving a check for the amount now due on your land contract. If you are unable, to pay the whole amount kindly indicate just how you can take care of the balance. We are desirous of arranging matters to meet the convenience of all concerned, but so far we have not even heard from you. Kindly advise us.
“Tours very truly,
(Signed) “J. Gilbert Quail,
“Secretary.”
Plaintiff herein claims in his petition for mandamus to have been a dona fide purchaser of the contract, for value, without notice, February 7,1929, or considerably more than a month prior to writing the letter above quoted. The bill in equity was filed for a rescission of a land contract on the ground of fraud and to establish a lien in favor of the vendees under the contract- for the money which they claim was fraudulently procured from them. The bill stated a cause of action, and, if sustained by proof, plaintiffs Would be entitled to a decree substantially as prayed. The plaintiff herein not only bought, as indicated by the letter, with knowledge of the vendee’s contract, but at the time he took a deed of the premises he took an assignment of the vendor’s interest in the land contract, as to which he as assignee of the vendor took subject to all of the defenses thereto that existed between the original vendor and vendees. Howell v. Medler, 41 Mich. 641; Seligman v. Ten Eyck’s Estate, 49 Mich. 104; Stephens v. Coryell, 169 Mich. 48; Ward y. Township of Alpine, 204 Mich. 619; Cutler v. Lovinger, 212 Mich. 272; Clark v. Bussard, 220 Mich. 304; Hull v. Hostettler, 224 Mich. 365.
If plaintiffs in equity as vendees in the land contract would have had a right to rescission and other relief against the original vendor, they have the same rights against the assignee of the vendor who stands in the shoes of the original vendor.
3 Comp. Laws 1915, § 12662, provides:
“No injunction shall issue to stay the trial of any personal action in a court of law, until the party applying therefor shall execute a bond with one or more sufficient sureties, to the plaintiff in such action at law, in such sum as the circuit judge or other officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff, or his legal representatives, of all moneys which may be recovered by such plaintiff, or his representatives, or the collection of which may be stayed by such injunction, in such action at law, for debt or damages, and for costs therein; and also for the payment of such costs as may be awarded to them in the court in chancery, in the suit in which such injunction shall issue.”
The contract itself recites a down payment by vendees therein of $1,950. The trial court held the sum paid by the vendees was sufficient to protect the vendor, treated the bill as one to rescind and establish a lien for money fraudulently procured from the vendees, and refused to order the statutory bond. No motion was made by the plaintiff herein to set aside such order.
In Carroll v. Farmers’ & Mechanics’ Bank, Har. Ch. 197, it was urged that compliance with this statute was imperative, and the court so held.
In Jenness v. Smith, 58 Mich. 280, it is said:
“The statute is imperative.”
In Lawton v. Richardson, 115 Mich. 12, it is held, where there was no compliance with the statute, “the injunction was a nullity.”
Where the statute is mandatory, as here,
“The court cannot dispense with the filing of a bond as preliminary to the issuance of a temporary injunction.” 32 C. J. p. 312.
“A compliance with the requirements of the statute is necessary, whether an injunction is the main purpose of the bill or is merely ancillary thereto.” 32 C. J. p. 310.
The bill having been filed for rescission of a contract prior to the rendition of any judgment at law in the justice’s court, any action subsequently taken in justice’s court would be subject to the decree of the circuit court in the equity case. No injunction bond having been filed in compliance with the statute, such injunction should be dissolved, unless the vendees, plaintiffs in equity, file with the clerk of the circuit court a bond in compliance with the provisions of the statute within ten days. The writ will issue.
Wiest, C. J., and Butzel, Clark, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no-part in this decision. | [
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] |
Shertvood, J.
The Southern Michigan National Bank of Ooldwater owns and holds a note of which the following is a copy:
“ 11,102.63. Grand Rapids, Mich., August 10, 1883.
“ Three months after date, we promise to pay to the order of Chickering & Kyser eleven hundred and two and 63-100 dollars, at the Michigan National Bank, Kalamazoo, Michigan; value received.
“ Kellogg, Sawyer & Co.”
The note was made by Kellogg, Sawyer & Co., as accommodation makers for the payees, Chickering & Kyser.
The note was negotiated by the payees, and by them and Frank Chickering and Rice & Messmore indorsed; and the day before the note became due, the ninth day of November, 1883, Kellogg, Sawyer & Co. failed, and made an assignment for the benefit of their creditors.
The note became due, and was duly protested, and notice of protest was properly given to all the indorsers, thus establishing their liability for the payment of the note.
Chickering & Kyser and Frank Chickering each failed and made an assignment for the benefit of their creditors about the same time that Kellogg, Sawyer & Co. made theirs.
On or about the seventeenth day of January, 1884, the Southern Michigan National Bank filed and proved its claim upon said note against the estate of Kellogg, Sawyer & Co., and also in same manner filed and proved its claim against each of the estates of Chickering & Kyser and of Frank Chickering.
On or about the fourteenth day of February, 1884, an agreement in writing was made between the bank and Chickering & Kyser, that upon the payment to the bank of 40 per cent, of the proved claim upon the note, to wit, $453.76, they should be released from any further liability upon the claim. Said agreement reads as follows:
“ Whereas, Frank Chickering and F. Kyser, composing the firm of Chickering & Kyser, of Grand Rapids, Michigan, have lately become insolvent, and made an assignment for the benefit of their creditors.
“ And Whereas, said Chickering and Kyser are desirous of making a compromise with their creditors for all their indebtedness, and of being released from all further liability therefor.
“ And Whereas, in consideration of such release, certain persons are willing to assist said Chickering & Kyser to pay a certain percentage of their indebtedness, and to bring about such compromise.
“ Now, therefore, we, the undersigned, creditors of said Chickering & Kyser, in consideration of the payment by them of 40 per cent, of our respective claims, one-third thereof in four months, one-third in eight months, and one-third in twelve months after the date hereof, to be secured by the notes of said Chickering & Kyser, and to be indorsed by Daniel McCoy, hereby agree, each' for himself, and not one for another, with said Chickering & Kyser, to discharge them upon the receipt of such notes from any and all further indebtedness of every kind to us respectively.
“ Provided, however, and it is hereby expressly understood, that neither anything herein contained nor the acceptance of such percentage, or of the note given therefor, shall in any manner afL-ct our claims, rights, or remedies against any other party or parties who is or are or may become liable on any note, draft or acceptance, or other commercial paper or obligation of any kind, to which said Chickering & Kyser are parties, or upon which they are liable, and all claims, rights, and remedies against all such parties are hereby expressly reserved.”
The payment of said sum was made to the bank in acceptable paper, and the release of Chickering & Kyser was then duly executed. It is, however, stated in the record, or rather petition of the bank in this case, that the amount thus paid it was understood was not to be applied upon the note, and that such was the condition of the payment, and that it should not affect the bank’s right to receive from the estate of Kellogg, Sawyer & Co. a dividend upon the full amount of the note.
On the fourteenth of February, 1884, or soon thereafter, a paper writing of the same date and effect as the release referred to was by Chickering & Kyser presented to the assignees of Kellogg, Sawyer & Co. for their signatures, which were refused; but upon further solicitation by Ohickering & Kyser for a release upon a proposed composition and payment to their creditors of 40 per cent., Kellogg, Sawyer & Co., and defendants, their assignees, executed and delivered to said Chickering & Kyser a release, operative upon fulfillment of certain expressed conditions, one of which conditions was that upon all outstanding notes to which both sai 1 firms of Chickering & Kyser and Kellogg, Sawyer & Co., either as maker or indorser, were parties (and which included this noti held by the Southern Michigan National Bank), the proposed 40 per cent, ompromise payment should be indorsed. The agreement reads as follows:
“ Whereas, the late firm of Kellogg, Sawyer & Co. have made an assignment of their property and effects, real and personal, for the benefit of their'creditors, in (rust, to Edwin Byles and Edwin J. Phelps, as assignees;
“And Whereas, Kellogg, Sawyer & Co. are desirous of making a compromise with their creditors of all their indebtedness, and of being released from all further liability therefor;
“And Whereas, the firm of Chickering & Kyser, who have heretofoie made an assignment in trust for the benefit of their creditors, among which is the said firm of Kellogg, Sawyer & Co , propose a composition with their creditors, and a release from their debts, by the payment of 40 per cent, of their indebtedness;
“ And Whereas, among the assets of said Chickering & Kyser are two promissory notes, signed by Kellogg, Sawyer & Co., payable to the order of Chickering & Kyser, one of whjch notes is dated October 22, 1883, and is payable in the sum of thirteen hundred and fifty dollars, and the other of said notes is dated November 1, 1883, and is payable in the sum of eleven hundred and forty dollars, and both notes, respectively, falling due in three months from date;
“And Whereas, K-dlogg, Sawyer & Co., as assets in the hands of their assignees, are the payees of two several promissory notes, payable to their order, made by said .Ghickering & Kyser, the date, time of payment, and amount, respectively of said promissory notes being the counterpart of said above described notes of Kellogg, Sawyer & Co.
“And Whereas, there are certain notes (in a total amount of about fifteen thousand six hundred dollars), signed by Kellogg, Sawyer & Co., for the benefit of Chickering & Kyser, and indorsed by them, and also certain other notes (in a total amount of about sixteen thousand seven hundred dollars), signed by Chickering & Kyser, for the benefit of Kellogg, Sawyer & Co., and indorsed by them, all of which notes have been negotiated, and are now held and owned by various third parties; and said firm of Chickering & Kyser having as aforesaid offered a compromise of their debts upon a composition of 40 cents on the dollar, to be paid their creditors, and they to be fully discharged from all their debts.
“Now, therefore, the undersigned, Joseph E. Kellogg, Albert E. Sawyer, and Frank I. Kellogg, composing the late firm of Kellogg, Sawyer & Go., in consideration of—
“First. That said promissory notes aforesaid, respectively held against said respective named firms, be evenly exchanged, and by the holders thereof respectively surrendered to be canceled.
‘ ‘ Second. The said 40 per cent, proposed to be paid by said C tuckering & Kyser in settlement of their indebtedness, as paid upon all the promissory notes hereinbefore described, as held and owned by various third parties, shall be indorsed upon said respective notes as a payment respectively thereon.
“And upon the conditions above stated, and in consideration thereof, we do hereby agree and consent that the holders of the said notes herein described, as owned and held by said various third parties, may receive from said Chickering & Kyser 40 per cent, on the amounts of all the above notes, and thereupon release them from all further liability thereon, and hold Kellogg, Sawyer & Co. for the balance thereof.
“And we do hereby authorize our assignees to consent to the above for us,
“Kellogg, Sawyer & Co.,
“By Joseph E. Kellogg,
“Albert E. Sawyer.
“Frank I. Kellogg.
“Kalamazoo, March 31, 1884.
“In consideration of the above and foregoing, and of the consent, as above expressed, of Joseph E. Kellogg, Albert E. Sawyer, and Frank I. Kellogg to be held liable for the balance after the payment by Chickering & Kyser of 40 per. cent, of their indebtedness, as hereinbefore described, we, the assignees of Kellogg, Sawyer & Co., hereby consent that upon the receipt of 40 per cent, paid by Chickering & Kyser on the paper hereinbefore described, meaning to include all unpaid paper on which the names of Kellogg, Sawyer & Oc. and Chickering & Kyser appear, either as makers or indorsers, and which payment shall be indorsed on all such paper, Chickering & Kyser shall be released from any further liability on said paper: Provided, the exchange of the two notes given, respectively, by Kellogg, Sawyer & Co. and Chickering & Kyter, as described in the foregoing agreement of Kellogg, Sawyer & Co., shall be made as therein described.
“Edwin Byles,
“Edwin J. Phelps,
“ Assignees of Kellogg, Sawyer & Co.
“ Dated March 31,188b.”
Besides the' amount petitioner received on such compromise with Chickering & Kyser, it received from the estate of Frank Chickering, one of the indorsers of said note, on account of his said indorsement, a dividend of $88.30, and neither has this sum been indorsed on said note. It is not claimed by petitioner that there was any agreement that such dividend of $88.30 from- Frank Chickering’s estate should not be indorsed as such on said note.
After these payments, respectively, by Chickering & Kyser and Frank Chickering to petitioner, a total of $542.06, the assignees of Kellogg, Sawyer & Co., in 1886, declared a dividend to creditors of 40 per cent., and calculated the amount of the dividend to petitioner upon its proved claim, $1,104.75, less total of payment, $542,06. Petitioner, claiming that the 40 per cent, should be calculated upon the debt as proved, without deduction for payments, refused to accept in satisfaction of said 40 per cent, dividend the apportionment made.
The amount of the dividend as claimed by the bank amounts to $441.90.
IJpon the foregoing facts, the bank filed a petition, which was sworn to on the second day of July, 1886, alleging that the assignees of Kellogg, Sawyer & Co. insist that they shall make the dividends of the moneys belonging to the estate they represent upon the balance of the bank’s claim, after deducting the monejs received from the other two estates by the bank, and that a large portion of the estate of Kellogg, Sawyer & Co. remains undistributed, and that the assignees now have in their hands as the assets of said estate sufficient to meet the claim of the bank.
The petitioner prays for answer by the assignees, and that they may be ordered by the court to pay over to the bank the said sum of $441.90, and that the court may adjudge that the petitioner is entitled to receive dividends upon the full face of its claim of $1,104.75, until the full amount thereof has been paid,—
“ And for such other relief as to the court may seem right; and if it appears at any stage of the proceedings that any other parties are interested herein, that they may be made parties hereto with apt words to charge them.”
The petition then contains the usual prayer for subpoena contained in a bill. It nowhere appears in the record that any subpoena was ever issued.
The petition was filed in .ne circuit court for the county of Kalamazoo, in chancery, and on application of petitioner’s solicitors the circuit judge made the following order, the service of which was admitted by the assignees of Kellogg, Sawyer & Co., on the thirteenth day of July, 1886:
“ State of Michigan.
“The Circuit Court for the County of Kalamazoo, in Chancery.
‘•In the matter of Kellogg, Sawyer & (Jo., Insolvents.
“ Now comes the Southern Michigan National Bank, a creditor of said insolvents, and whose claim has been regularly proved against their estate, and makes application to said court, under section 8749 of Howell’s Annotated Statutes, that an order may be entered by this court requiring Edwin Byles and Edwin J. Pnelps, assignees o± said insolvents, to appear and answer the petition filed herewith within .twenty days after service upon them of a copy of such petition, and of the order so entered, and for a further order that, in case they fail to answer such petition in accordance with such order, such petition stand as confessed by them, and be heard at any time; and that, in case they so answer, they shall serve within said twenty days a copy of their answer upon petitioner, or its said solicitors, and that the petitioner be at liberty to reply thereto within teu days after said service; and that, in case an issue is formed between the parties, such matter be referred to one of the commissioners of Kalamazco ■county, to take proofs as to the issue so formed, and report the same within a convenient time, not to exceed sixty days, to this court, and that such matter stand for hearing at the next regular term of said court without further notice.”
Under the requirements of this order the assignees of Kellogg, Sawyer & Co. answered the petition, without waiving any irregularity of the proceeding by petition, and protest'ng against the jurisdiction of the court by petition in the premises ; and after admitting the assignment of Kellogg, Sawyer & Co., the making of the note, the ownership by the petitioner, the indorsements, non-payment, and protest, tnat the assignees of Kellogg, Sawyer & Co. received a large amount of property, and have converted part into cash, and that the bank’s claim was proved against the estate, they then deny that the bank is entitled to $441.90, and aver that it should receive under proper distribution but $281.35,
They further say tha —
“The material fact is that said Chiekering & Kyser paid, and secured to be paid, to the petitioner on account of and as payment upon said promissory note, which as indos sera .they were liable to pay, the sum of $453.76, and also said Frank Chiekering, for his liability as indorser, has paid thereon $88.30, and these payments were before any dividends were declared by these assignees.”
They admit that they refuse to pay the bank a dividend, except on the balance of the claim, after such deductions are made.
They further say that the note of Kellogg, Sawyer & Co., indorsed by Chiekering & Kyser and Frank Chiekering, is not their accommodation indorsement, but was given upon full value therefor, Kellogg, Sawyer & Co. having indorsed and become liable to pay a like amount of the former’s paper outstanding in third parties’ hands; and therefore the assignees further say that the bank could give no release to Chiekering & Kyser, while Kellogg, Sawyer & Co.’s liability continued as indorsers for Chiekering & Kyser, which would not, without the consent of Kellogg, Sawyer & Co., release them also; and hence it was that the consent of the latter was asked, and upon certain conditions obtained, as expressed in the agreement last set forth, a principal condition of which was that the 40 per cent, proposed to be paid by Chiekering & Kyser upon composition with the creditors, with the release of Kellogg, Sawyer & Co. and of their assignees, be indorsed as payments upon all notes therein described outstanding in the hands of third parties.
And the defendants further say that the release of the indorsers Chiekering & Kyser and Frank Chiekering, by the petitioner, is a release of Kellogg, Sawyer & Co., except so far as they may have assented to it in said agreement, and but for which assent and compliance with its conditions petitioner has no claim for any dividends upon the note.
They also deny that a large portion of the estate of Kellogg, Sawyer & Co. remains undistributed; but they admit. there is sufficient of said estate undistributed to pay the bank the alleged deficiency, if the court should hold there is any such deficiency in the amount of dividends to it.
The testimony was taken in open court, and consisted mainly of statements of the facts and concessions made by counsel, and among which were, on the part of the petitioner, that the note was purchased by the bank for the sum of 81,082.88, before the same became due, of Rice and Mess-more, the last indorsers, and that at the time of the bank’s purchase it had, neither by itself or through its agents, any notice or knowledge or intimation that any bther or different relation between the parties to the paper existed, other than that which is established by reason of their names appearing in the order they do upon the paper, as makers and indorsers; that there was an express agreement between the bank and Ohickering & Kyser, when the 40 per cent, was paid to the bank, that the amount should not be indorsed upon the note of petitioner, and that the rights of all the parties should be preserved.
The rest of the testimony on either side relates to the facts hereinbeiore stated, and need not again appear here.
When the petitioner commenced to make its proofs, counsel for the defendants objected to taking any testimony in the matter, on the grounds:
“ 1. The court has no jurisdiction of the subject-matter in this proceeding by petition, and no jurisdiction in this proceeding by petition to order or decree the relief prayed; that this proceeding by petition is not a suit; that only by suit commenced by bill in chancery, and prosecuted in accordance with the rules and practice prescribed by the court for the conduct of such suits, would the court take jurisdiction, and grant the relief prayed .
<f2. If it be claimed that, in structure and effect, the petition is to be construed a bill of complaint, then the court has acquired no jurisdiction of the persons of defendants, there having been no subpoena to appear and answer issued and served on defendants, and there is no voluntary appearance of defendants, but their appearance and their answer in the matter was enforced under the order of said court of the date of July 13, 1886, and served on pain that, if not so appearing and answering, they be defaulted, and said petition be taken as confessed by them for not so appearing and answering.”
On the hearing in the case, the circuit judge overruled the objection of defendants’ counsel, and upon this ruling counsel for defendants lay some stress. But we think the ruling was correct. There is really no reason why the alleged grievance may hot as well be heard upon the petition as upon a bill. The facts upon which the relief is based and asked and information desired can as well be stated and presented in a petition as in a bill, and the rights of all the parties can as well be protected in the one as in the other.
Parties can be brought into court as well by one kind of an order as another. A court of chancery may always direct the manner of proceeding before it, unless the practice is prescribed by statute, and may order a reference or take proofs in any matter pending before it whenever necessary to be further advised of the facts.
Mr. Barbour, in his work on Practice, says:
“Petitions may be presented either in a cause or in a matter over which the court has jurisdiction under some act of the legislature, or other special authority.” 1 Barb. Oh. Pr. 578.
The court, upon the petition and answer and proofs taken, entered the following decree:
“ This case came on to be heard on pleadings and proofs taken in open court, Barlow & Loveridge appearing as solicitors for the petitioner, and Edwards & Stewart as solicitors for the defendants.
“ And thereupon, after reading the pleadings and hearing the proofs, from which it appears to the court that Kellogg, Sawyer & Co., at the time of their said assignment, were indebted to the said complainant in the sum of $1,104.75, and that such claim has been regularly and duly proved up against them, and the proof thereof filed in the office of the clerk of the county of Kalamazoo.
“And it further appearing that said indebtedness was upon promissory note, which was indorsed regularly by Chickering & Kyser, Frank Chickering, and Eice & Messmore, and that Chickering & Kyser, under and by virtue of the instrument set forth in the petition filed in this matter, paid to said Southern Michigan National Bank the sum of four hundred fifty-three and 76-100 dollars, but under the express agreement that such payment was in. no way to affect the rights of the said petitioners against said Kellogg, Sawyer & Co., or their estate, nor in any way affect their right to receive whatever dividend the assignees of said Kellogg, Sawyer & Co. should declare upon the whole amount, and that such payment was made by them as indorsers only, and that the further sum of eighty-eight and 30-100 dollars was received from Frank Chickering, another of the said indorsers of the said note, but that neither of such sums were indorsed upon said note, and in no way affected the liability of said Kellogg, Sawyer & Co. thereon.
“And it further appearing that said defendants, as assignees of said Kellogg, Sawyer & Co., have declared a dividend of 40 per cent, upon the indebtedness of said Kellogg, Sawyer & Co., and that they have sufficient funds in their hands to pay the dividend so declared.
“It is ordered, adjudged, and decreed that the said defendants, Edwin J. Phelps and Edwin Byles, as assignees of Kellogg, Sawyer ■& Co., pay to said complainants the sum of four hundred forty-one and 80-100 dollars, being 40 per cent, of the sum of eleven hundred four and 75-100 dollars, the amount proved up against said estate.
“ And it appearing to the court that the questions involved herein are novel and undecided in this State by the Supreme Court, it is further ordered, adjudged, and decreed that neither party do recover costs as against the other.-
“Alfred J. Mills,
“ Circuit Judge.”
We think the statute confers the authority upon the circuit court, in chancery, to entertain the proceedings taken in this case. How. Stat. § 8749. It says, speaking of assignments, that such court shall have—
“Supervisory power of all matters, questions, and disputes arising under such assignment, except as otherwise provided in this act, and may, on the application of the assignee or any person interested, make all necessary and proper orders . for the management and disposition of the assigned property, the distribution of the assets and avails,” etc.
This statute confers power upon the court, and enables it to acquire jurisdiction of the parties; and, as to the question of practice in bringing the parties interested before the court, it was not necessary to serve the creditors with notice of the petition, or with a copy of the order made by the court. So long as the assignees appeared, the creditors were sufficiently represented in the matter.
It is claimed on the part of the petitioner that, if the proceeding by petition was irregular, the irregularity was waived by the defendants’ appearance and answer, and giving notice to take proofs in open court; but we think there was no waiver. The rights of the defendants were, by the protest contained in the answer, sufficiently protected against waiver.
We think the circuit judge was right in his conclusion upon the main question presented. There is nothing in the record showing that the bank did not take the note in good faith and for value, before due. It was taken by the petitioner in due course of business, with the liabilities of all the parties upon the paper fixed. Under such cireumstancés, the holder had the right to sue any of the makers and indorsers, or all of them, and collect the whole claim of any one of them if it could. It had the right to compromise and take what it could get of the insolvent or any other indorsers of the paper, and then share with the other creditors of the makers of the note until the whole claim was paid. It could, however, have but one satisfaction.
The amount of indebtedness upon which the petitioner could share.with the other creditors of the makers, until the debt was paid, was determined by the amount owing at the time the makers made their assignment.
The general rule that, when one of two creditors of a common debtor has two funds out of which he may receive his pay, he is first to resort to the fund upon which the other creditor has no lien, and exhaust that before encroaching upon the other, does not apply to ca?es like the present. The other creditors have no right, legal or equitable, to the moneys received by the bank from the indorsers. 1 Story, Eq. Jur. § 643; Dickson v. Chorn, 6 Iowa, 19; Armitage v. Toll, 64 Mich. 412; Logan v. Anderson, 18 B. Mon. 114; Patten’s Appeal, 45 Penn. St. 151; Ex parte Nason, 70 Me. 363; Blake v. Ames, 8 Allen, 318; Citizen’s Bank v. Patterson, 78 Ky. 291; Nat’l, etc., Bank v. Porter, 122 Mass. 308; Miller’s Estate, 82 Penn. St. 113; Sohier v. Loring, 6 Cush. 548.
The assignment made by the makers to the defendants could in no way modify or change the contract or liability of the indorsers. Their rights remain the same after as before the assignment. Neither does it affect the rights of the indorsers in the relation they sustain to, the holder; and there is no contract relation, either legal or equitable, existing between these indorsers and the creditors of Kellogg, Sawyer & Co., excepting with those who hold the note in question. Such being the fact, the release of the indorsers, or of any one of them, could have no effect upon the bank’s right to a pro rata share with the other creditors in the bankrupt estate of Kellogg, Sawyer & Co., the makers of the note. The release was of no concern to the other creditors, nor to the defendants. 2 Rand. Com. Paper, § 949; Mueller v. Dobschuetz, 89 Ill. 176.
"We think the main question raised in this case, while new in this State, is fully settled both upon reason and authority elsewhere, and we find -no occasion for making any change here.
The order entered in the case by the circuit judge will therefore be affirmed.
The other Justices concurred. | [
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Ohamplin, J.
This case comes before us upon demurrer for want of equity to a bill filed by the complainant as guardian of Ebenezer Hilliard to foreclose a mortgage given by the defendants to George L. Phelps, guardian of Ebenezer Hilliard, a spendthrift.
Phelps died, and complainant was appointed guardian by the probate court to succeed him.
The reasons upon which the demurrer is based are stated in the brief of counsel for defendants, as follows.
“ 1. Because Phelps was a trustee, and after his death his only proper successor would be some one appointed for that purpose by the court of chancery to execute the trust.
“2. Because Norton has not such an interest in the mortgage as to give him a standing in court as a complainant.
“ 3. Because there is no averment in the bill that an order of the guardian, either written or verbal, was made at the dwelling-house on said premises, as required in the mortgage described in the bill. ”
We think the bill of complaint sufficient. Complainant’s appointment by the probate court was proper, and the statute expressly authorizes the guardian to demand, sue for, and receive all debts due to his ward. This authorizes him to collect moneys due upon bonds and mortgages. Livingston v. Jones, Har. Ch. 165. He may bring suit to recover personal property or debts due his ward in his name as guardian.
The third objection is not available on general demurrer. The bill alleges that a certain amount is due and unpaid. If the money was not demanded at the place where it was payable, and defendants had the money there to pay it, the only effect would be that the guardian may not be able to recover costs against defendants.
The demurrer is overruled, and the record will be remanded for further proceedings in accordance with the rules and practice of the court. The complainant will recover his costs. "
Sherwood and Morse, JJ., concurred.
Campbell, C. J., did not sit.
See head-note 4. | [
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