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Champlin, J.
Defendant Stebbins is the receiver of the •Scranton & Watson Lumber Company, which, on the nineteenth day of August, A. D. 1886, executed a common-law assignment for the benefit of all of its creditors, without preferences, to one James Dewey. He having failed to qualify, defendant was, on application of certain creditors, appointed receiver by the circuit court for the county of Wayne to execute the trusts of the assignment.
The assignor was a corporation organized under the laws of this State. The corporators were J. P. Scranton, Harvey M. Mixer, and Joseph E. Watson. Prior to the incorporation, Scranton and Mixer were engaged in the lumbering business in the city of Detroit, as copartners, under the name of J. P. Scranton & Co. Watson was also engaged in business at East Jordan, Michigan. Informing the corporation it was agreed that J. P. Scranton & Co. should put into the corpora tion as capital the assets of that firm, and that the corporation should assume and pay the debts and liabilities of the firm, and the same agreement was made with respect to the assets and debts of Watson.
The corporation was organized about the first of October, 1885, and carried on business and acted as a corporation to the time of the assignment.
The firm of J. P. Scranton & Co. was indebted to Mary W. Whipple for money borrowed to the amount of $5,000, which was one of the debts which the corporation assumed and agreed to pay. At the time of the assignment, such indebtedness was evidenced by two promissory notes, one dated October 1, 1885, payable in one year to the order of Mary W. Whipple, for $2,000, signed by J. P. Scranton & Co., and indorsed, “Scranton & Watson Lumber Co., H. M. Mixer, Treas.” The other note was dated August 2, 1886, payable three months after date to the order of Mary W. Whipple, signed by J. P. Scranton & Go., and indorsed, “Scranton & Watson Lumber Co., H. M. Mixer, Treas.”
On the eighteenth day of August, 1886, the corporation executed a chattel mortgage to Miss Whipple to secure the payment of the indebtedness evidenced by the above notes, which was filed in the- city clerk’s office on the nineteenth day of August, 1886, at 8 o’clock and 55 minutes, and the assignment was executed at 9 o’clock and 10 minutes on the same day.
The corporation became embarrassed financially, and on the eighteenth day of August over $4,000 of its notes went to protest. A few days previously certain drafts, drawn by the corporation and sent to Cleveland to be accepted by one Smith as an accommodation, had been returned unaccepted, and Mr. Mixer and Mr. Scranton took advice of their counsel as to the best course to pursue under the circumstances in which the corporation was placed. Their counsel advised them to secure Miss Whipple, and a chattel mortgage was then and there drawn up and executed, which Mr. Mixer handed to his wife to deliver to Miss Whipple, which she did, and Miss Whipple accepted the security and returned it to Mrs. Mixer, who handed it to Mr. Mixer the same evening. The next morning he handed it to his counsel, who caused it to be filed at the hour above stated.
It appears that at the interview at which the chattel mortgage was drawn the advisability of making an assignment was talked over and contemplated. Both Scranton and Mixer testified that they had not finally concluded to make an assignment until they executed it on the morning of the nineteenth. But the testimony is convincing that they fully intended to do so on the eighteenth, when they executed the chattel mortgage. This conclusion inevitably follows from what was done on the eighteenth. They arrived at their counsel’s office at about 2 o’clock, and stated to him their situation. At 3:55 o’clock they sent the following telegram to Mr. Watson, viz.:
“The Western Union Telegraph Company.
“Time filed, 3:55. Detroit, August 18, 1886.
“To J. E. Watson,—
“East Jordan, Mich.:
“We find it necessary to make an assignment. Must have your concurrence this afternoon. Please wire your consent this afternoon. Answer by messenger.
“H. M. Mixer,
“J. P. Scranton.”
Watson answered by telegraph, as follows:
“The Western Union Telegraph Company.
“Time received, 8:20.
“Dated East Jordan, Mich., Aug. 18, 1886.
“ To H. M. Mixer or J. P. Scranton,—
“Franklin and Dubois:
“I agree to the assignment.
“Jos. E. Watson.”
The attorney set about preparing the assignment on the afternoon of the eighteenth, although it was not fully com pleted until the next morning. When Mr. Dewey, the assignee, was notified it does not appear, but he came to their counsel’s office on the morning oí the nineteenth, and joined in the execution of the assignment. I have no doubt but that the officers of the corporation intended to make the assignment, which was prepared on the eighteenth and executed on the nineteenth, at the time they executed, the mortgage to Miss Whipple, and that it was substantially one transaction, and that the two instruments were to all intents and purposes cotemporaneous.
It also appears that, in the transactions between the firm of J. P. Scranton & Go. and Mis3 Whipple, she was represented by Mrs. Mixer, the wife of H. M. Mixer. Mrs. Mixer was Miss Whipple’s sister-in-law. She made the loans to the firm for Miss Whipple, received the interest paid on the notes for Miss Whipple, and was the custodian, of the notes for her. She says that she left her papers with Mrs. Mixer because she was boarding, and thought they would be safer with her than at her boarding-place. She says that she had no knowledge or expectation that the assignment was contemplated, or was' about to be executed; that she had several times spoken to Mrs. Mixer, and told her she wanted security for the money loaned; and it appears that Mrs. Mixer had communicated her request to Mr. Mixer, and he had promised that security should be given. Mr. Mixer says that he was willing to give her security, and Mr. Scranton says he •objected, because the giving of security would injure their •credit.
It also appears that Mr. Mixer, before he delivered the chattel mortgage to his wife, told her of their embarrassment, but did not tell her that they had talked of or intended to make an assignment.
The mortgage was executed in the corporate name by Scranton as vice-president and secretary, and Mixer as treas urer. Watson was not consulted, and of course gave no consent. There -was no meeting of the board of directors, and no corporate action taken by resolution or otherwise. But. by resolution adopted by the board the above-named officers-were given general authority to manage and conduct the business.
The statute forbids, because it prohibits, any debtor who-makes a common-law assignment from preferring one creditor over another. It also forbids any such assignment unless-it be of all the debtor’s property, except such as is exempt, from execution.
As we have before said, the main object of the statute is to-prevent a failing debtor from preferring one creditor over another, and to insure an equal distribution of the debtor’s-property among all his creditors. It is, however, neither an. insolvent nor a bankrupt law. It affords no discharge to-the debtor who has surrendered all his property to satisfy the-claims of his creditors. It does not declare preferences, by way of payment or security before making the assignment,, void. It provides no means by which the assignee can-recover from a creditor so preferred payments made or property pledged.
The greatest extent to which the law goes is to authorize-the assignee to recover all property, or right or equities in property, which might be reached or recovered by any of the-creditors of such assignor. This does not authorize the assignee to recover a payment made by way of preference to a. bona, fide creditor before the assignment, nor to attack the validity of a mortgage given to secure the payment of a bona, fide indebtedness. No creditor could successfully attack such-mortgage if the assignment had not been made, and, unless prohibited by law, a debtor has a right to secure a bona fideindebtedness to his creditor, although such act may operate, to prefer him over other of his creditors.
The law does not declare such preferences fraudulent; they are not fraudulent in fact. Preferences are Void only in common-law assignments because forbidden by statute. The statute inhibits the debtor from preferring a creditor in the instrument. If it is done by another and separate instrument cotemporaneous with the assignment, it can only be held void as an evasion of the law by the parties to the instrument. The purpose must be mutual by the mortgagor and mortgagee, for, no matter what the intent of the mortgagor is with reference to evading the law or committing a fraud upon it, such intent cannot affect the validity of a security otherwise valid given to a person who is innocent of such intent, and who does not knowingly participate therein. Heineman v. Hart, 55 Mich. 76; Root v. Potter, 59 Id. 498; Sweetzer v. Higby, 63 Id. 13; Field v. Fisher, 65 Id. 606.
The total absence of enactments necessary in order to effectuate the intention of the law to secure an equal distribution of all the debtor’s property among all of his creditors, and to recover preference made with an intenG to evade its provisions, renders the law but little better than a dead •letter upon the statute book.
We are satisfied that the debt to Miss Whipple was one that the corporation had assumed, and was obligated to pay; that it was a Iona fide liability of the corporation, which it had a right to secure.
The chattel mortgage appears to us to be a valid instrument, and was received by the petitioner without notice or knowledge that the corporation or its officers intended to make a general assignment for the benefit of its creditors. It was therefore a valid security in her hands, and under the stipulation made in the cause whereby she consented to the sale of the property by the receiver, and that he should hold the fund subject to her lien if established, she is entitled to payment of her mortgage debt out of such fund, and the decree of the court below is affirmed.
The costs will be paid by the receiver out of the general fund in his hands as receiver.
Sherwood and Morse, JJ., concurred.
•Campbell, C. J., did not sit. | [
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] |
Sherwood, J.
The plaintiff in this case owns 40 acres of land lying in the township of Climax, in the county of Kalamazoo.
The defendant’s railway runs diagonally across the northwest corner of the lot, leaving in the corner cut off a triangular piece of ground containing about three acres, which the plaintiff used during the season of 1884 for pasture. On the last of May and during the month of June the plaintiff owned a cow and some hogs, which were pastured in this corner lot. The cow and one of the plaintiff’s hogs were rum over by defendant’s cars, and killed. The plaintiff claims that by reason of the neglect of the defendant to fence its road, and keep it in repair, where it crossed her land, as required by law, her cow and hog passed from her pasture field onto the defendant’s right of way, and upon the track, where they were killed by the passing trains.
The cause was tried before a jury in the Kalamazoo circuit, and the plaintiff recovered a judgment of $78.63. The defendant brings error.
This cause was originally commenced in justice’s court. The plaintiff stated her case in three counts in the declaration; and thereupon counsel for the defendant moved tne court to dismiss the suit, on the ground that it had no jurisdiction in the case, for the reason that the plaintiff at the .time the suit was commenced resided in the township of Climax, and that the justice before whom the suit was brought resided in the city of Kalamazoo, which lies entirely within the territorial limits of the township of Kalamazoo, and that defendant’s road only passes through a township which corners with the township of Kalamazoo, but neither adjoins nor corners with the city. The justice overruled the motion. The defendant then pleaded the general issue, and the cause was tried. On the appeal to the circuit, counsel for defendant, when the plaintiff offered her proofs, objected to the same, claiming that the court had no jurisdiction in the case, for the same reason urged before the justice, and was again overruled. This ruling is now alleged as the defendant’s first ground of error.
We think the ruling was correct. Section 6*818, How. Stat., provides that suit may be brought—
" “Before some justice of a city in the same county, formed from a township or townships next adjoining the residence of the plaintiff or defendant, or one of the plaintiffs or defendants.”
And by Act No. 118, Laws of 1885, it is further provided that the action may be brought before a justice of a city lying in a township which adjoins the township where the plaintiffs or defendants, or either of them, resides. It is conceded by the record that the defendant was a resident of the township of Pavilion, for the purpose of this suit, and Pavilion corners with the township of Kalamazoo; and this would be sufficient to enable the justice before whom the suit was commenced to take jurisdiction. How. Stat. §§ 6861, 8147; Holmes v. Carley, 31 N. Y. 289; Burson v. Huntington, 2L Mich. 415.
We find nothing in the charter of the city of Kalamazoo interfering with the statute of 1885, herein referred to. It was undoubtedly intended to apply to such cases as the present.
The plaintiff relied upon the insufficiency of the defendant’s fence on the north side of its right of way-adjoining her pasture lot, where it is alleged her stock came upon the defendant’s road, as one of the grounds of defendant’s negligence. She also claimed that the insufficiency of said fence had existed a long time before her property was killed, and that she gave notice to the company early of its defective condition.
It does not appear from the testimony that any one saw the animals killed go upon the defendant’s right of way at the time they were injured; and the plaintiff, after proving the condition of the defendant’s fence, was allowed to show by several witnesses that other of the plaintiff’s stock, such as her hogs and sheep, had on several occasions, months before, been seen on the defendant’s right of way. Counsel for defendant objected to all testimony relating to other animals than those killed going upon the defendant’s right of way. The court overruled the objection, and allowed considerable testimony of this character to come in.
The objection should-have been sustained. It was certainly immaterial to show what the plaintiff’s other stock did, and especially at other times than when the animals mentioned in the declaration were killed.
We have examined the declaration and proofs, claimed to be at variance, which were admitted by the court, and cannot agree with the learned counsel for the defendant upon that subj ?ct in this case. We think the declaration was sufficiently specific to admit the proofs which were proper to be received. We find no other objections to the testimony needing further consideration.
The defendant upon the trial claimed that the cow came upon the track of the defendant in the highway, where the engine struck her. And the plaintiff’s claim was that, if the cow was upon the highway crossing when injured, it was because of the neglect of the defendant to properly fence its track. When the animals were found, after being killed, they were both on the defendant’s right of way, beyond the highway inclosures. At the close of the trial the defendant’s counsel asked the court to instruct the jury:
“It the jury find from the testimony in the case that the cow was struck in the highway by the defendant’s engine, and killed, the plaintiff cannot recover.”
This request was properly refused. The request excludes all idea that the defendant’s negligence might have been the occasion of the cow being upon the highway, or contributed to her going there.
Several portions of the charge were excepted to by the defendant, as given by the court. The paragraphs inclosed in brackets in the following extract from the charge contain the parts excepted to, viz.:
“ [The defendant denies that the fence was out of repair, and denies that the animals got upon its traok in consequence of any defect in the fence, or through the fence.]
“ If you find that the defendant had been operating the railroad mentioned in the declaration in this case for six months or more before the killing of the plaintiff’s animals, as alleged-by plaintiff, then it was the duty of the company to erect and maintain on the side of its road fences four and a half feet high, aod in good repair, consisting of rails, timber, boards, stone walls, or any combination thereof, or other things equivalent thereto, and of such reasonable strength as to confine or turn the animals usually restrained by fences in this country. But if these animals did not get on this track in consequence of any defect in the railroad fence, or because of breachings or otherwise, it would make no difference in this case whether the fence was in repair or out of repair.
“ [If the jury find that on or about the thirty-first of May, 1884, a cow belonging to the plaintiff was killed by an engine of the defendant running upon the railroad operated by the defendant, and that such cow escaped from the plaintiff’s field onto the railroad track by reason of a defect in the fence, which it was the duty of the defendant to.erect and maintain, and that such defect was an open, visible one, and had existed for some time before the killing of the cow, then the plaintiff would be entitled to recover the value of the cow, and interest on such value from the time of the killing.]
“ [And if the jury find that on or near the said thirty-first day of May, 1884, a shoat belonging to the plaintiff was killed by an engine of defendant running upon the railroad operated by the defendant, and that such hog escaped from the plaintiff’s field onto the railroad track because of a defect in the fence, which it was the duty of the defendant to erect and maintain, and that such defect was an open and visible one, and had existed for some time before the killing of the shoat, then the plaintiff is entitled to recover the value of the hog, and interest from the date of killing. So that you see in both cases the liability of the company depends upon the question as to whether or not the cow and the shoat got upon the track in consequence of the defect in the fence.]
“[If you find from the evidence that the cow escaped from the pasture onto the track through the fence, which it was the company’s duty to maintain, and that such fence was insufficient under the rule I have already given you, then the defendant would be liable to the plaintiff for killing the cow, whether the cow was upon the public highway or not at the time she was struck by the engine j;—
“ But that, of course, depends upon whether she got upon the track because of a defect in the fence.
“ If she had escaped from the lot onto the highway, and so onto the track, and was killed, then I charge you that in this case the plaintiff would not be entitled to recover for the cow, even though you should find that she was killed by th6 defendant’s cars, because in this case the killing would not be occasioned by the injury which the plaintiff asserts as her cause of action in this case.
“If you find from the testimony that the plaintiff left her cow in question running at large in the highway, and defendant’s cattle-guard and side-way fences, running from either side of the cattle-guard to the defendant’s right-of-way fences, were properly constructed and in good repair, and that the cow got onto the defendant’s right of way from this point, and was struck and killed by the ■ defendant’s engine, the plaintiff cannot recover.
“ It is not enough for the plaintiff to allege and show that the defendant’s fence was defective along its right of way, so that the cow could have gotten onto defendant’s track, but it is the duty of the plaintiff, in order to entitle her to recover, to show by a preponderance of the testimony that the cow (and this is true of the shoat, too) got onto the track because of and through the defective place in defendant’s fence, if you find there was any; and, unless she has established that fact by a preponderance of the evidence, she could not recover.
. “Now, gentlemen, I think I have said all that I need to say, in order to enable you to properly dispose of the issues in this case.
“ [The question with reference to both of these animals is—
“ 1. Was this fence out of repair as claimed by the plaintiff?
“ 2. If it was, did the cow and the hog get onto the track because of that defect in the fence?]
“If they did, why, then, one result would follow. If they did not, then the other would follow. Now, you take this evidence, and dispose of it fairly and impartially, and having done so return into court with a verdict which will be in accordance with the law and the evidence.”
In answer to a question here put by a juror, the court did further instruct the jury as follows:
“ I instruct you, as matter of law, that a barbed-wire fence on that railroad track would be just as lawful and just as legal as aoy other fence, provided it was ordinarily sufficient to prevent stock and animals from getting onto the track. That is the assumption of law, and now, since 1885, the Legislature has taken that up, and regulated by express enactment, and has said, of what in the future a railroad fence, in which barbed-wire is used, shall be constructed; but this accident took place prior to that law, and prior to that time the barbed-wire fence, if properly constructed, was just as lawful and just as legal as any other fence.
“ But the question whether a barbed-wire fence is a lawful fence or not, is not involved in this case at all.
“ [The only question is whether that fence was out of repair, and whether the animals got through that fence onto the track because it was out of repair.]”
We find nothing in the foregoing charges excepted to of which the defendant need complain.
The testimony erroneously admitted, however, was of a damaging character, and for this reason the judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Sherwood, J.
This action is ejectment, brought to recover possession of an undivided interest in blocks 55 and 58 in the village of Verona, in the county of Calhoun, which includes certain mill privileges. The cause was tried in the Calhoun circuit by jury in March, 1887,-and verdict and judgment were rendered for the defendant.
The declaration contains five counts, each claiming a different interest.
The claim in the first count is to an undivided half of said blocks, according to the recorded plat of said village,—
“ Located on the north half of section five, in town two south, of range seven west, and of the mills, mill privileges, and water-power appurtenant thereto.”
The* second count claims an undivided three-quarters of the same property; the third, an undivided one-quarter; the fourth, an undivided three-eighths; and the fifth, an undivided one-eighth. In each count the fee of the parcel is claimed.
The defendant’s plea is the general issue.
From the record it appears that Ezra Convis became the owner of the north-west quarter of sá,id section 5 by entry, receiving his patent therefor, dated May 5, 1836.
Oonvis died in February, 1837, leaving a widow and five minor children. The widow died in 1872. The children’s names were Amanda, Albert, Ezra, Emily L., and Wallace O.
Wallace died without issue, and unmarried, before this suit was commenced.
Before Ezra Convis died he sold one-eighth of his interest in the property to Sylvester Mills, and gave him a bond for the conveyance thereof. Mills assigned this bond to John Stewart.
Ezra Convis, shortly before his death, made and executed the following will, which was subsequently probated:
I, Ezra Convis, of the county of Calhoun and State of Michigan, do make this, my last will and testament.
“I appoint John M. Barbour, of Berrien county, Isaac E. Crary, of Calhoun county, and Epaphroditus Eansom, of Kalamazoo county, and I do hereby authorize and request them, to sell, at such times and in such manner as they shall deem expedient, all my town or village property, and with the proceeds thereof to pay my debts, and the balance thereof to invest or dispose in such manner as to them shall seem best for the interests of my heirs.
“ I do hereby give to my executors all necessary power for the full settlement of my estate, directing that they shall not sell my wild, or uncultivated, unimproved lands, or any part thereof, unless for the proper maintenance and education of my children, and at such times and in such quantities only as may be necessary for that purpose.
" In testimony whereof I do hereby set my hand and seal this eighteenth day of February, 1887.
"E. Convis. [l. s.]”
In his will he appointed Isaac E. Crary, John M. Barbour, and Epaphroditus Ransom his executors. Ransom and Barbour did not qualify, and Isaac E. Crary became sole executor of the will.
In 1839 the Legislature passed the following act (Act No. 57, Laws of 1839), authorizing Crary to sell or make partition of the lands belonging to Ezra Convis:
" An act authorizing Isaac E. Crary, executor of the last will and testament of Ezra Convis, to sell certain lands.
‘'Section 1. Beit enacted by the Senate and House of Representatives of the State of Michigan. That it shall be lawful for Isaac E. Crary, executor of the last will and testament of Ezra Convis, late of the county of Calhoun, in said State, deceased, and he is hereby authorized and empowered, .to make partition of any lands which said deceased owned and held in said State at the time of his death in com-’ mon with any other person or persons, and to sell all c r any part of the same at public or private sale, on credit or otherwise, under the restrictions contained in the will of said Convis, and on such partition or sale to make, sign, and execute in due form of law the necessary deeds and conveyances to the other owners of said lands to vest in them the fee simple of such lands as may be divided to them in partition, and also to vest in the purchaser of said lands the fee simple of the same: Provided, however, that before any title shall pass by virtue of such ceed it shall be the duty of said executor to have indorsed on said deed or deeds the approval or consent to such sale or partition by the judge of probate of the county or counties within which the premises so sold or partitioned may lie.
"Sec. A This act shall take effect to be in force from and after the day of its passage.
" Approved April 15, 1839.”
In 1842 Lydia Oonvis, the mother, was appointed by the judge of probate guardian of the minor children.
In the month of December, 1842, the probate court issued a warrant to commissioners to set off the dower of the widow in the real estate of Ezra Oonvis, deceased. The commissioners made their report in January, 1843, which was approved by the probate judge in April following; and among the lands set apart for her was an undivided one-third of blocks 55 and 58, together with one-third part of all the rents, issues, income, and profits of the saw-mill, grist or flouring mills, and water privileges thereon.
Amanda Oonvis was the eldest of the minor children, and on the twenty-seventh day of April, 1841, she was' married to John Van Arman, then being, according to her marriage certificate, but 18 years of age.
The claim of the plaintiff is based upon the following grounds:
“1. Her own right, as one of the heirs of Ezra Oonvis, which would be one-fourth of the property of the estate that belonged to her father, after the death of her youngest brother.
“2. Mrs. Van Arman’s interest that she inherited of the same propeitv, and which has been conveyed to plaintiff.
“3. Albert’s proportion of the same projerty, which had been transferred to Mrs. Van Arman, and from Mrs. Van Arman to the plaintiff.”
Her claim in fact is to three-fourths of so much of the property as belonged to the estate of Ezra Oonvis. To establish these, counsel for the plaintiff first introduced in evidence the patent issued to Ezra Oonvis, it being admitted that it covered the premises in question. Counsel for plaintiff next offered evidence of the marriage of Amanda, and the exclusive possession of the property in suit by the defendant at the time this action was brought. The plaintiff, after offering testimony tending to prove the signature of Albert Convis to a quitclaim deed dated September 19, 1881, con veying the said north-west quarter of said section 5 to Amanda Van Arman, offered the same in evidence. Plaintiff also offered a quitclaim deed from Amanda Van Arman to the plaintiff of all her interest in the estate of Ezra Convis, late of Calhoun county, deceased. The plaintiff here rested her case.
Defendant’s counsel then offered in evidence the will, heretofore referred to, of Ezra Convis, deceased, from the records of the probate office, and an order of the probate court appointing Isaac E. Crary sole executor of said will.
The defendant then offered the following testimony for the purpose of showing that Isaac E. Crary, as executor, under Act No. 88, Laws of 1840, § 4, conveyed one-eighth of the property in question to John Stewart:
1. The petition of Sylvester Mills and John Stewart to the probate court for that purpose, and, in connection therewith, and referred to therein, the bond of C .nvis to Mills, and also the assignment of the same from Mills to Stewart.
2. The statutory notice required by the act to be given by the judge of probate.
3. The license to Crary, as executor, to sell, under date of December 24, 1842, and the certificate of the executor on the back of the license that, in accordance with the same, on the fourth day of January, 1843, he conveyed the premises in accordance with the license.
4. Also another paper filed as a return.
The defendant further offered the record of the deed from Crary to John Stewart, also the record of the certificate, being a deed of the undivided one-eighth of the premises in controversy, and other lands included in the Oonvis bond to Mills.
This deed was objected to by plaintiff’s counsel on the grounds—
1. That the same is unauthorized.
2. There is no order by the probate court authorizing these proceedings or approving the same.
The objection was overruled, and plaintiff’s counsel excepted, and this exception constitutes the • plaintiff’s first assignment of error.
This deed was executed January 4,1843, for the purpose of carrying out the contract made by Oonvis to Mills in fulfillment of 11"' bond executed by the former to convey. This proceeding was author.zed by the statute of 1840, heretofore referred to, section 4 of which reads as follows:
“ Whenever it shall be represented and made to appear to the court of probate by petition in writing, by any person contracted with by bond, covenant, or, other contract in writing, that a deceased testator or intestate, in his or her lifetime, entered into such bond, covenant, or contract to convey some real estate to him or her, but was prevented by death, and that such person or persons contracted with, as aforesaid, have on his or their part performed, or stand ready to perform, the condition of such bond, covenant, or contract made with the deceased, the said court may, after due notice given to all concerned, or their guardians where minors are interested, who do not signify their assent to such conveyance, grant license to and empower the executors or administrators of such deceased obligor, covenantor, or contractor, to make and execute such conveyance or conveyances to such person or persons contracted with, as aforesaid, as it shall appear that said obligor, covenantor, or contractor would, by his bond, covenant, or contract, be obliged to make and execute, in case he, she, or they were living at the time of the performance of the bond, covenant, or contract by the contractors on their part, making reasonable allowance for any alteration, improvement, or injuries that maybe made or done in the same estate since the contract was made, as the said court may award, which conveyance or conveyances, when duly acknowledged and recorded in the registry of deeds for the county where such estate shall lie,, shall be good and valid, and the moneys or consideration paid for such estate (if not paid to such deceased contractor during his lifetime) shall be assets in the hands of the executor or administrator, and be apportioned among the representatives of the deceased as other personal estate.”
This property was the same entered by Convis, and the proceedings recited in the record upon which the court made the order for sale were sufficient to give the probate court jurisdiction, and the sale was made by Crary, and the recital in the deed says by him as executor.
It will be noticed that the act requires no confirmation of the deed, and, if it did, such confirmation would be presumed after a lapse of 40 years; but the statute says that the conveyance, when made,—
“Acknowledged, and recorded in the registry of deeds for the county where such estate shall lie, shall be good and valid.” » ,
The objection to this deed cannot be sustained.
The will created the trust to be carried out by the executors, and it was the duty of the court to see that it was faithfully executed; and, if the trustees appointed by the testator failed to accept or discharge the trust, it was the duty of the court to commit its execution to persons who would discharge the duties created by the trust. This may be done in the case of a will by appointing an administrator, and issuing to him letters with the will annexed. Rev. Stat. 1838, pp. 277, 278, §§ 5, 9. The deed sufficiently shows that the executor in executing it did so in the discharge of his duties under the will.
After offering in evidence the act of 1839, defendant’s counsel next offered a deed from Isaac E. Orary, as executor, to John Stewart. On this deed is indorsed the approval of the judge of probate, under the act of 1839, referred to. This was objected to on the grounds—
“ 1. That there is no authority in the probate court, or by virtue of any statute, by which the executor could convey this land.
“2. That the steps taken under the act do not show that the lands were such as the act authorized to be partitioned or conveyed.
••3 That the lands partitioned or conveyed by virtue of this deed were not lands held in common, but of which the deceased died in possession of the whole title,, as shown by the uncontradicted testimony and admission of the defendant.
“4. That the record of the certificate of the judge is not sufficient to show a compliance with the requirements of the act.”
The objections were overruled and exceptions taken. This is plaintiff s second alleged error. This deed bears the same date as the one above mentioned, and was acknowledged January 14, 1843, and recites a consideration of one dollar. It conveys the property in question. The description contained in the deed is as follows:
“All those certain pieces or parcels of lamí situate in the village of Verona, in said Calhoun county, and described as follows, viz: Lots one, two, three, four, five, and eight, of' block sixty-eight; lots five, six, seven, and eight, and the undivided half of lots one, two, three, and four, of block sixty-nine; the undivided half of lot two, of block seventy; also blocks fifty-five and fifty-eight, with the water-power connected with said blocks fifty-five and fifty-eight, and the right of maintaining the dam connected with said waterpower at the height the same was erected by the said Ezra Convis in his life-time, together with the right of flowing with the waters of Battle creek, to the height of said dam, such lands as were owned by the said Ezra Convis at the time of his decease; also the right of flowing with said waters to a like height the lands acquired of Isaac Bodine; also the right of flowing acquired of John S. Holliday; with all and singular the houses, tenements, and appurtenances, and all the interest of the estate of the said Ezra Convis, in law or equity, of, in, to, or out of the same; to have and to hold the premises hereby granted, with the appurtenances, unto the said John Stewart, his heirs and assigns forever.”
The approval of the judge of probate of this deed is a sufficient compliance with the statute of 18.9. It is as follows, and indorsed on the deed:
“ Calhoun County — ss.: This certifies to those it may concern that I, Henry J. Pnelps, judge of the court of probate of .the county aforesaid, do hereby approve of the foregoing conveyance of the execution of the last will and testa-, ment of Ezra Convis, deceased, in conformity to an act entitled ‘An act authorizing Isaac E. Crary, executor of the last will and testament of Ezra Convis, to sell certain lands/ approved April 15, 1839.
“ H. J. Phelps, Judge of Probate.
“Dated Marshall, January 14, 184.3.”
The statute does not require that the approval or record of approval should appear anywhere else except upon the back of the deed, and what appears must be construed as “ the approval or consent to such sale or partition,” whether judicial in character or otherwise. The executor not only derived his power to sell the land of his testator from the act of 1839, but also from the will. By the latter the executors were expressly authorized “to sell, at such times and in such manner” as they might deem expedient, all his “town or village property;” and this includes the description of the land in question. The power under the will was sufficient for that purpose. Osman v. Traphagen, 23 Mich. 80; Battelle v. Parks, 2 Id. 531; Haddon v. Hemingway, 39 Id. 615; Cheever v. Washtenaw Circuit Judge, 45 Id. 10; Tracy v. Murray, 49 Id. 35; 4 Kent, Comm. 320-328; 2 Spence, Eq. Jur. 366 ; 1 Sug. Powers, 131-134; 1 Perry, Trusts, § 248; Will. Eq. Jur. 486, 487; Forbes v. Peacock, 11 Sim. 152, 160.
A portion of the property mentioned in the deed was undivided, and of the description mentioned in the act of 1839; but, if this were not so, the power to make the deed was given by the will. The defendant claims possession of the premises in question under these deeds from Crary to Stewart, and the grantees of the latter, and, whether they are valid or not, they were admissible in evidence for the purpose of showing that the defendant was in possession of the property under color and claim of title, and the extent thereof. And aside from this the deed was valid and admissible in evidence. The Legislature had the power to make the statute of 1839, under the Constitution then existing, and it was competent for Convis to make the will he did.
Counsel for defendant then offered a deed made by John Stewart to the estate of Ezra Convis to carry out the partition of the property. This was objected to for the same reasons given for the objection made to the last conveyance, and also that it was irrelevant, immaterial, and incompetent; against which objections the deed was received in evidence and exception taken, and which is the plaintiff’s third assignment of error. This conveyance was made and acknowledged on the same day as the other deeds. It was in the nature of a release by Stewart of so much property held in common as Crary did not convey to him. Crary’s first deed conveys one-eighth of a large quantity of land. By the second deed and the one now being considered, Stewart and Crary partitioned the lands in which Stewart had the one-eighth interest, and Stewart no longer had any interest in any of the lands released. There was nothing wrong or illegal in partitioning the property in this manner, and in so doing the executor did no more than he was authorized to do under the will of his testator. The deed was properly received in evidence.
Counsel for defendant' next offered in evidence the record of a deed from John Yan Arman and wife, Amanda, to Elijah Eish, dated the sixth day of November, 1843. This was objected to as irrelevant and immaterial, and not acknowledged as required by statute to admit it to record. The objection was overruled, and an exception taken, and this is the plaintiff’s fourth assignment of error.
This evidence was material. Mrs. Yan Arman had an interest in the property, and by uniting with her husband she could convey it, if of age, by her deed, and she so conveyed it to Elijah Eish, and her deed was acknowledged on the sixth day of November, 1843, and conveys an undivided half of the premises in question, with other, property, for the consideration of 83,900. The acknowledgment is in the fol lowing language and form:
“State or Michigan,! County of Calhoun, ) 8 '
“ On this sixth day of November, 1843, personally came bifjre me John Yan Arman and Amanda Yan Arman, ü.nown to me to be the persons described in and who executed the foregoing instrument, and acknowledged the execution thereof.
“ And the said Amanda, being examined by me separate from her husband, acknowledged that she executed the same for the purpose in it specified with fear or compulsion of any person.
“ Em L. Stilison,
“ Notary Public.”
The ground of the objection to this certificate of acknowledgment is, as argued by counsel,—
“ That it does not state the wife executed such deed without any fear or compulsion of her husband.”
When the words are added which were omitted through a mere clerical mistake, the acknowledgment is sufficient, and these may and ought to be added in construing the instrument. There can be no doubt but that the word “with” was intended by the notary to be “without,” and, when the circumstances under which it was made are known and considered, any other construction would be not only unreasonable, but stupid. With this modification of,the certificate, I hardly think the learned counsel for plaintiff would still regard it as insufficient. It surely would not be.
Whenever substance is found in a certificate of acknowledgment, obvious clerical errors and all technical omissions and effects will be disregarded, and, in order to uphold it, the certificate will be read in connection with the instrument, and in the light of the surrounding circumstances. Morse v. Hewett, 28 Mich. 481; Brown v. McCormick, Id. 215; Nelson v. Graff, 44 Id. 433; Ford v. Ford, 70 Wis. 19 (33 N. W. Rep. 188); Taylor v. Youngs, 48 Mich. 268; Sparrow v. Hovey, 41 Id. 708; Brunswick v. Brackett, 37 Minn. 58 (33 N. W. Rep. 214); Wells v. Atkinson, 24 Minn. 165; Chandler v. Spear, 22 Vt. 407; Carpenter v. Dexter, 8 Wall. 528; Gorman v. Stanton, 5 Mo. App. 585; Johnson v. Badger, 13 Nev. 351; Scharfenburg v. Bishop, 35 Iowa, 61; Muller v. Boone, 63 Tex. 91; Donahue v. Mills, 41 Ark. 421; Gordon v. Leech, 81 Ky. 229.
The circumstances surrounding the execution of this deed, and the making of this certificate, are most unfavorable to the views taken by counsel for plaintiff. The husband of Mrs. Van Arman was one of the leading lawyers in the State, and the notary who took the acknowledgment was also a lawyer in good repute, and nothing appears showing or tending to show that a good and valid deed, properly acknowledged by Mrs. Van Arman, sufficient to convey her interest, was not intended, and nothing is shown as occurring since it was made, before the commencement of this suit, indicating that it was not regarded as a perfect and valid instrument, and conveying Mrs. Van Arman’s interest in the property described in the deed. I think the court did right in receiving it in evidence.
Counsel for defendant offered in evidence a deed from John Stewart and wife to the defendant and Elijah Eish, conveying an undivided one-half tof the mill property as blocks 55 and 58. This was objected to as irrelevant and immaterial. The objection was overruled and exception taken, and this is the fifth error assigned. This conveyance was made June 1, 1849. Stewart went into possession under his deed from Crary, and possession of the property was then in him and Merritt, who was the agent of Eish, and they thus held such possession up to the time of the execution of the deed. From that time Fish and Merritt were the sole owners and occupants of the property, according to the undisputed testimony, and Fish’s heirs became subsequently grantors of the defendant. This made the deed both material and relevant, and properly admissible.
The record then proceeds as follows:
“ It was then admitted by plaintiff’s counsel (subject to objection that it is irrelevant) that Elijah Fish is dead, and that his heirs joined in conveyances of their interest in this property to William Merritt.
“ William Merritt was then recalled in his own behalf, and gave evidence tending to show that he was conversant with the premises in question from the time of the deed to Fish; that he then lived in Battle Creek, about one mile from the property, and was a son-in-law of Fish, who lived in Pennsylvania, and he took possession for Fish immediately after the deed. At that time John Stewart was occupying it. He and Fish were in joint occupation. Witness then said:
“ I continued to occupy,as agent for Fish, until he died. I claimed, in my own right, one-quarter. Fish and I and Stewart claimed title according to papers and deeds. We were in possession, claiming title. I am in possession, and my possession has been continuous.’ ”
The proceedings in the probate court in 1842, appointing Lydia Convis guardian of the minor children, were next put in evidence by defendant Defendant then rested.
“ Plaintiff’s counsel, in rebuttal, offered in evidence the proceedings of the probate court, as contained in the files and records thereof, in relation to the assignment of dower to the widow, Lydia Oonvis. First, the warrant; next, the certificate of the oath of the commissioners; next, the return of their proceedings on the assignment of dower, signed by the three, under date o& April 18, 1843; also the confirmation of the report by the order of the court, in volume 4, page 463. In connection therewith we offer another paper found in the files in that court referring to the application for dower. It is admitted that these are all the files and records that can be found in the probate court in reference to the assignment of dower.
“Defendant’s counsel objected to the evidence of the assignment of dower—
“ 1. There is no application in any sense for the assignment of dower. That is essential to give this court jurisdiction.
“ 3. It does not appear from the records that there was no dispute as to the right of dower. That is essential to j urisdiction.
“3. The description of the property in the warrant of dower is such that it is simply impossible for the commissioners to rightfully know how that dower should be set out. It is indefinite and uncertain.
“4. No notice to the heirs was given. It was done without notice to anybody. Of course, Mrs. Convis was the guardian. She was a party in interest, as she was a guardian of the minor heirs.
“ 5. The last paper in regard to the application is a paper not signed; it is without filing, without any intimation whatever of any date, without any intimation of a probate record. It is a mere slip of paper found among the probate files, and that is all there is of it. The application to give the court jurisdiction should be in writing. It is irrelevant and incompetent.
“'6. The oath taken by the commissioners for dower does not accord with the statute.”
The objection was sustained, and the evidence offered relating to dower and its assignment was excluded. This ruling is the plaintiff’s sixth assignment of error.
If the widow’s right of dower had never been set off to her, or, if set off, she had never taken possession thereof, the owner of the fee could in no manner be affected by it if he had remained in possession undisputed for the period of 20 years after the death of the husband in the case. The right could only continue if duly set off while she lived; and if she failed to apply for and obtain it, as provided by law, or if she did thus obtain it and abandoned it for that length of time, the owner of the fee had the right to take possession of, use, and occupy the premises, during all or any portion of said period, to protect his interest therein; and in this case, the widow having failed to claim or take, possession of her dower for more than 20 years and a month after she was entitled so to do, she was precluded from bringing an action thereafter therefor. .
It nowhere in the record appears that the widow ever occupied or possessed any portion of the premises in question under a claim of dower, or any other claim.
All the proceedings claimed to have been taken to set apart dower for the widow appear in the record, and these proceedings, it is contended by the defendant, are void for want of jurisdiction; and the reasons upon which this claim is based were stated when the objection was made. The first is, there was no application by any person for such assignment.
The jurisdiction of the probate court in the matter of dower is purely statutory. It is in no way essential to the settlement of the estate. Smith, Prob. Law, 214. It is a proceeding, when the estate is solvent, in which only the widow and heirs are interested. Campbell, Appellant, 2 Doug. 146; Chev. Prob. Law, 246. And proceedings to assign dower may be had at any time before, during, or after administration is closed.
An assignment of dower at common law was enforced by writ of unde nihil habet, or by writ of right of dower against the tenant of the freehold, and if judgment was obtained by the widow she could then recover her possession in ejectment. Park, Dower, 283; 1 Rop. Husb. & W. 429; 2 Scrib. Dower, 83. The writ is of the same nature and efficacy as the writ of right to recover the fee. 3 Bl. Comm. 182. This writ issued upon the filipg of aprcecipe wherein the widow states that she has been married, and declares herself to be the wife of the person whom she claimed was her late husband. And the writ would be abated if this was omitted. Fulliam v. Harris, 2 Cro. Jac. 217; 1 Rop. Husb. & W. 429; William v. Gwyn, 2 Saund. 43, and note; 3 Chit. Pl. 1311. And until dower had been assigned, or if judgment had been obtained upon the writ, and possession not taken by the demandant, the owner of the fee-or remainder-man might enter and take possession to protect his title. When this widow’s right of action accrued, the common-law practice to some extent prevailed.
The writ of dower is now abolished in this State. Ejectment may, however, be resorted to to accomplish the same purpose, and in such case the description of the land in the declaration ' must be so certain that possession may be delivered by the sheriff without any reference to any description dehors the writ, and any defect of this kind cannot be cured by reference to any deeds or records. Evans v. Evans, 29 Penn. St. 277.
It may be safely asserted that, either at common law or under our statute, when the owner of the fee or the tenant whose duty it was to set apart dower has failed so to do, some sort of application stating such facts as are jurisdictional should be made to the proper court, before such court is authorized to take cognizance of the matter. Among such facts are those of the residence of the widow, that she is a widow, that the estate in which she asks to be endowed is that of her deceased husband, and of which he died seized; and, under our statute, she ought further to state that her right to dower is not disputed by the heirs or devisees, and that she, or some other person interested in the land, wishes it set apart.
In this case it is not claimed that any other person than the widow ever made any application, and there is nothing properly in the record showing that she ever made one. The claim that she did make such application is based principally upon some memoranda found among the files in the probate court, but which constituted no part of the files in the estate, and were entirely inadmissible, for any purpose, in this case.
The statute under which this claimed dower proceeding was had is a special one, and all the facts necessary to give the court jurisdiction must in some manner be made to appear. Rev. Stat. 1838, p. 263; Gary, Prob. Law, § 434; Sheafe v. O’Neil, 9 Mass. 9; Ryder v. Flanders, 30 Mich. 342; Smith v. Smith, 5 Dana, 179; Stevens v. Stevens, 3 Id. 371. Neither the record s of the probate court nor any other testimony in' the case furnishes any such evidence. It has been held in one case, under a statute where the language is quite similar to ours, that the appointment of commissioners to set apart dower is prima facie evidence of a proper application (Williams v. Morgan, 1 Litt. 167); but in a subsequent case in the same court it was otherwise determined.
The heirs to the estate of Convis were parties interested both in the possession and fee of the land belonging to the estate. It is not claimed that Convis resided on the prem ises in question when he died, nor that the widow or any of the heirs resided thereon or were in the occupancy or possession thereof, and the widow enjoyed no rights in the premises arising from any of these facts under the law then existing. Rev. Stat. 1838, § 6, p. 263.
No incumbrance or interest in property could be created therein against the consent of the heirs, under the statutes regulating dower or otherwise, without notice thereof first given to them. The testimony does not show that any such notice was ever given. The report of the commissioners says they—
“Did meet together on the thirty-first day of January, 1843, to discharge said duty and execute the trust aforesaid; that as well the said Lydia Convis as the said heirs of the said Ezra Convis, in person and by their attorneys, appeared and were present.”
This is no evidence of notice, however, when the situation of the parties is considered. Lydia Con vis was the doweress.
The children were all minors, and she was their guardian. Their interests were antagonistic to hers. The widow, under such ciicumstances, could not appear for them, nor could they for themselves appear; neither could they appoint or choose an attorney. So that, legally, they had no notice of the dower proceedings being had against them, and the proceedings were for that reason void. In re Cooper, 15 Johns. 533; Buck v. Sherman, 2 Doug. 176; Strachan v. Brown, 39 Mich. 168; Campbell, Appellant, 2 Doug. 146.
It is true the guardian may have set out dower to the widow. Kev. Stat. 1838, p. 349, § 18; How. Stat. § 6325. But this does not apply to a case where the guardian is the doweress. No person can be a judge in his own case.
Whether the statute required notice to be given to the heirs in express language or not can make no difference, as the necessity of one in such case will be implied. And while judicial proceedings are not essential except in cases where the assent of the parties cannot be obtained, and while, even in such cases, no rigid doctrines have been held as to the manner of setting out dower, however provided (and great liberality has been indulged in accomplishing it), still, when a resort to the courts does become necessary, jurisdic-. tion in the matter must be properly obtained. It was not done in this case.
If it be said that such proceedings, however defective, cannot be' collaterally attacked after confirmation, it is a sufficient reply that parties whose interests are prejudiced may always take advantage of want of jurisdiction in the court where the injury occurred. Gillett v. Needham, 37 Mich. 143.
In the statute of 1846 it is expressly provided that notice of the application must be given to the heirs and devisees, and it authorizes the probate court to direct in what manner it maybe done. This statute,'however, adds nothing to what was before required and imperatively implied. Rev. Stat. 1846, p. 368, § 8. The clause in the-statute of 1846 does not necessarily imply that no notice was necessary before. Undoubtedly, it was made to secure attention to, and observance of, the requirement already implied, and which had not been complied with because of carelessness or want of knowledge on the part of those having such mat.ters in charge.
It is quite possible that the irregular and defective proceedings offered in evidence taken to set apart dower might be held a sufficient protection to the widow, were the action against her, if she had ever taken possession of the land set apart under the assignment, on the ground of the lapse of time, if the remainder-man had never made any objection thereto, but treated his own estate as commencing at the end ■of the dower interest. In such case he might be held to have waived his right to disturb the assignment. Doe v. Blakeway, 5 Car. & P. 563; Asher v. Whitlock, L. R. 1 Q. B. 1; Anstee v. Nelms, 1 Hurl & N. 225; Salmons’ Adm’rs v. Davis, 29 Mo. 176; State v. St. Gemme’s Adm’r, 23 Id. 344; Wood, Lim. 528; Ang. Lim. § 375; Jackson v. Schoonmaker, 4 Johns. 390; Tilson v. Thompson, 10 Pick. 359.
Before the doctrine can be applied, however, the equitable rights of the widow must require it, and she must have-entered into possession of the premises assigned to her, and continued the same. Thomas v. Simpson, 3 Penn. St. 60, 68; Bratton v. Mitchell, 7 Watts, 113; 2 Scrib. Dower, 171.
Such possession of the widow in this cas8 does not appear in the record, and I do not think, under the circumstances shown, the widow acquired any right or interest in the premises in dispute by waiver on the part of the heirs, or any of them, or by the owners of the fee.
The description of the property contained in the warrant-is defective and imperfect, and its sufficiency may very properly be questioned; but, as the other proceedings in the case-were invalid for the reasons before stated, there is no occasion for discussing the point made by counsel upon the sufficiency of the warrant, and, if insufficient, whether or not it could be attacked in this proceeding if jurisdiction had been obtained by the court.
The defendant not only claims title to the premises in question through the several conveyances hereinbefore stated and offered by him in evidence, but claims that the statute of limitations bars the plaintiff’s action. He insists, and it is not contradicted in the testimony, that he and those under whom he claims have been in the peaceable and quiet possession and occupancy of the property in question for a period of about 40 years, and that such possession has all the time-been hostile to that of the plaintiff’s claim; that his possession has been visible, distinct, and exclusive; and he now urges that, if the plaintiff and those under whom she claims-ever had a right of action against him for the interest she now prosecutes, it accrued at the time the defendant and his- grantors went into the exclusive possession of said premises, and as soon as 1843, or before.
In 1878, this Court held that the recovery of dower may be barred by the statute limiting actions of ejectment. See Rev. Stat. 1838, p. 573, § 1; Rev. Stat. 1846, p. 598, § 1; 2 Comp. Laws 1871, p. 1973, § 1; How. Stat. § 8698. See, also, Proctor v. B gelow, 38 Mich. 282.
The limitation in such cases when this suit was commenced (in July, 1883), is found in the Laws of 1863, p. 388, § 1, and. which took effect on the first day of January, 1864.
Mrs. Convis’ right of action for her dower, if any, accrued one month after the time her husband died, which was in February, 1837. Laws of 1833, pp. 264, 309, 332.
Her right to recover dower expired sometime during the year 1857, and at nó time during this period is it shown she was laboring under any disability preventing her from taking proceedings to recover her dower interest; and the statute then in force limited the widow’s right of action to 20 years. See Laws of 1833, p. 570, § 6, which reads as follows:
,f And be it further enacted that no writ of right, or other real action, no action of ejectment or other possessory action, of whatsoever name or nature, shall hereafter be sued, prosecuted, or maintained for the recovery of any lands, tenements, or hereditaments, if the cause of action shall accrue after the passing of this act, hut within twenty years next after the cause of action shall accrue, or have accrued, to the plaintiff or defendant, or plaintiffs or defendants, or those under whom, he, she, or they claim; and that no persons having right or title of entry into houses, lands, tenements, or hereditaments, shall hereafter thereinto enter, but within twenty years next after such right of entry shall accrue or have accrued.”
Considerable space herein, has been devoted to the claimed assignment of dower of Mrs. Convis, as it is insisted by the plaintiff’s counsel that, by the assignment claimed to be shown, the widow would have held in the premises an intervening interest, which, when secured, entitled her to the possession so long as she lived, and thereby the plaintiffs right of action, and of those under whom she claimed, against the defendant was postponed until after the death of Mrs. Oonvis, which, as we have seen, occurred in 1872, and that the statute of limitations did not begin to run against plaintiff until that time, for that reason.
The right of dower is not an undivided third of the entirety, but of one-third in severalty (May v. Rumney, 1 Mich. 1, 9; Rayner v. Lee, 20 Id. 384); nor is it one-third in quantity of the lands of which the husband died seized, but she is entitled to the use of such part as will yield one-third of the entire income of the whole. Leonard v. Leonard, 4 Mass. 533; Conner v. Shepherd, 15 Id. 167. The right until assignment is inchoate, and cannot be set up by any one in ejectment against an heir entitled to the fee. 4 Kent, Comm. 61, 62; Howe v. McGivern, 25 Wis. 525; Johnson v. Wilmarth, 13 Metc. 416. To the extent it exists, it is a continuance of the estate of the husband, and is held of him by appointment of law, and, under our statute, is liable to be lost or defeated by lapse of time, the same as any other interest in land, and in the same manner as it might have been if the husband were living, and under the same circumstances.
Until dower is legally assigned or set off, the person entitled to the fee may bring ejectment against one wrongfully in possession, and recover. The widow’s interest did not stand in the way of the plaintiff, or those under whom she claims, bringing action against the defendant, or against those under whom he claims, at any time, after they went into possession of the premises in question.
As to the interest of the- deceased heir, Wallace Oonvis, that was inherited by his brothers and sisters, and the fourth part of which the plaintiff claims to represent, it was barred by the statute long before the commencement of this suit. He became of age in 1858, and died in 1869. His right of action against .the defendant, if he had any, accrued wl en he became of age, and the statute continued to run after his death. It was not suspended by any change of title. De Mill v. Moffat, 49 Mich. 130; Hogan v. Kurtz, 94 U. S. 773; Wood, Lim. 480, and note.
Albert Convis was the next oldest child of Ezra. By the record he conveyed his interest in the premises in question to Mrs. Van Arman, and she to the plaintiff. He was of age as early as 1844 or 1845, and was under no disability. His rights were therefore barred long before Mrs. King, the plaintiff, received her deed from Mrs. Van Arman, and before the bringing of this suit. She can urge nothing through him which he could not legally claim.
Emily L., the plaintiff, was married to Mr. King in 1872. She was of age, without question, in 1855. Therefore, if she had any right of action against the defendant, it had run at least 16 years before she was married. The marriage created no disability. See Laws of 1855, p. 420, § 3.
Mrs. Yan Arman’s inherited rights in the property were also barred, although she was married before she became of age. She was relieved from all disability to bring her action against the defendant by the legislation of 1855, referred to. How. Stat. §§ 6295-6297; Burdeno v. Amperse, 14 Mich. 91; Ransom v. Ransom, 30 Id. 328; Rhoades v. Davis, 51 Id. 306; Comstock v. Comstock, 27 Id. 97; Hill v. Bowman, 35 Id. 191.
Both under the law of 1846 and of 1863, the plaintiff’s suit was barred. The provision contained in section 5, Rev. Stat. 1846, p. 599, grew out of the disability of married women; and the removal of such disability by the statute of 1855 left no reason for the continuance of the possession in force, and it may be properly regarded as repealed by implication. Hayward v. Gunn, 82 Ill. 385, 391; Brown v. Cousens, 51 Me. 301; Kibbe v. Ditto, 93 U. S. 674; Cameron v. Smith, 50 Cal. 303.
The provision of How. Stat. § 8706, that the rights of parties are to be determined by the law in force when the right of action accrued, relates, not to the subject of disabilities, but to the time when the statute became a law.
I am unable to discover that the plaintiff represents any interest m this suit not bound by the statute referred to, and certainly it would seem, after a lapse of nearly 40 years, during which no claim appears to have been made upon the property by her or her grantors, or by any one except the defendant and his grantors, who have possessed and occupied the same during the whole period, to the exclusion of every other person, under claim of title in good faith, and after having paid a valuable consideration therefor, that both law and justice require that something more than a mere technical claim should be made to appear before the defendant should be dispossessed and deprived of his property.
The deed of a minor, with knowledge of his or her rights, I think should be held hffirmed by the grantor, unless some claim is made by such minor to the conveyed premises within a period of 40 years alter he or she becomes of age. The protection of the interest of bona -fide purchasers, and the stability of titles in a well-ordered communily, require such a holding, and the necessity for which is well illustrated in the present case.
It was then admitted by the parties “that the plaintiff was a married woman, and had been the wife of Amos E. King since 1872.” Evidence was then offered tending clearly to prove that Ezra Con vis and Lydia Oonvis were married, in February, 1823. Evidence was also received to prove that Amanda was born January 22, 1824, and was not 21 years of age at the date of the deed of John Yan Arman and wife to Elijah Fish. And, on the contrary of this, the defendant introduced evidence tending to prove that Mrs. Yan Arman was over 21 years of age at the time of the exe cution of said deed to Fish. These are the statements contained in the record upon the subject of Mrs. Van Arman’s age.
The evidence of the deed from John Stewart and wife to' Amanda Van Arman, Albert Convis, Ezra Oonvis, Emily Con vis, and Crary Wallace Con vis, of several parcels of land, and among them the undivided half of blocks 55 and 58, dated January 4, 1843, was properly received in evidence.
The deed offered in evidence in connection with the other testimony relating to Mrs. Convis’ dower, and a deed of release executed by Lydia Convis to Elijah Fish, dated November 6, 1843, were by defendant’s counsel objected to' as irrelevant and immaterial. The objection was sustained, and an exception taken. This exception is the plaintiff’s sixth assignment of error. In the view we have taken of the case these were irrelevant, and no error was committed in excluding them.
At the close of the testimony counsel for plaintiff presented the following 19 written requests to charge:
“ 1. That Ezra Convis died seized of the premises in controversy in 1837.
“ 2. That Convis left a widow, Lydia Convis, who survived him until 1872, when she died, never having remarried.
“3. That Convis left five children, who were his heirs at-law, namely: Amanda, Albert, Ezra, Emily, the plaintiff, and Wallace; that Wallace was born after his father’s death,, and died in 1869, without having married, and without issue.
“ 4. That Amanda was married to John Van Arman, April 27, 1841, and still lives, and is still married to said John Van Arman.
“5. That Albert deeded his interest in the premises in controvesy to Amanda, which included the interest which accrued to Albert by the death of Wallace, and that Amanda, deeded to the plaintiff the interest thus received as well as what descended to her upon her father’s death, and which accrued to her by the death of Wallace, before the commencement of this suit.
“6. That, if the plaintiff is entitled to recover, she is entitled to recover a three-fourths interest in the undivided one-half of the premises in controversy.
“7. That the deed of Crary to Stewart of all the premises in controversy is void.
“ 8. That if Amanda Yan Arman was under 21 years of age when she joined with her husband in the deed to Fish, then that deed would be void.
“9. That if she was 21 years of age when she made the deed, it would only be good for her undivided interest in the estate, and the plaintiff would still be entitled to recover for the interest which she inherited from Wallace and from the estate, and that which she secured though Amanda’s interest that accrued from Wallace’s death, as well as that which she inherited from the estate.
“ 10. That this action is not barred by. the statute of limitations.
“ 11. That the plaintiff, upon all the facts in this case, is entitled to recover; the only question being as to the amount of her interest.
“12. The jury are instructed that the deed of John Yan Arman and wife, put in evidence, conveyed no title so far as John Van Arman was concerned, for the reason that he is not shown to have had any title to convey.
“ 13. Amanda Yan Arman joining with her husband in the deed put in evidence by defendant would only operate as a release of any dower interest she might have in the lands conveyed, and would not be otherwise binding upon her.
“ 11. If you find that Amanda Yan Arman, formerly Convis, was under 21 years of age when she executed it (the deed), then such deed is utterly void.
“ 15. If you find Amanda Van Arman was 21 years of age when she joined in the deed to Fish, then if such deed is obligatory, and the release of dower, it would, at most, only convey what interest she acquired as heir, as she is not shown to have derived any title in any other way.
“16. The deed of Isaac E. Crary to John Stewart was inoperative to convey title to Stewart, because he had no title to convey, and no authority to partition or sell and convey any lands except such as Ezra Convis, the deceased, owned and held in common with some other person or persons.
“ 17. There is no evidence in this case that the Ezra Convis referred to in the statute of 1839, put in evidence, owned and held the lands in question in common with any one, but the proof shows that Convis held title to the premises in controversy in his own right.
“ 18. Mrs. "Van Arman being a married woman at the time she became entitled to any shares or portions of the estate or premises in controversy, the statute of limitations would not run against any rights the plaintiff received through her, or against the plaintiff for the same reason.
“ 19. There can be no adverse possession of lands the title to which is held by two or more, as tenants in common, as against any co-tenant, until there is an actual ouster, the possession of one being the possession of all; and the undisputed testimony in this casé is that John Stewart, defendant’s grantor, deeded the undivided half of these lands to Amanda, Albert, Ezra, Emily, and Wallace Convis, and there is no evidence of any actual ouster.”
Several of these requests relate to questions of fact about which there was no contest. Whether Mrs. Van Arman was or was not of age at the time she and her husband deeded to Eish is immaterial. However, I have regarded her as a minor in the discussion of the questions involved. If the circuit judge was correct in his conclusion, it is unnecessary to consider further any of the requests of the plaintiff’s counsel.
Alter a careful examination and review of the case upon the undisputed facts, I think the court was right in the direction given to the jury, and the judgment should be affirmed.
Ohamplin and Morse, JJ., concurred.
Campbell, C. J.
If there were any possible doubt on the conceded facts, I might desire to reserve my opinion upon some suggestions of my Brother Sherwood, but I am satisfied that plaintiff could, under no circumstances, recover in this action, and I concur in the affirmance. | [
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Campbell, C. J.
Peter Marshall was killed by a knife flying out of a rapidly revolving shaper-head, the first time it was used as then arranged, and as soon as it reached its high velocity, before it was applied to cutting into lumber to be worked. The.testimony was strong that the knives had been fastened in as tightly as they could be. The head was got up on a new plan by the contrivance and invention of one of the principal managers of defendant, and was made accurately from the plan. The court below, without giving reasons for that conclusion, held there was no proof of negligence, and ordered a, verdict for defendant. This ruling would have made all other points immaterial. There were several rulings excluding evidence which seems to have had some legal bearing on the points in controversy. The only conceivable grounds for taking the case away from the jury must have been that the defendant had, in choosing to have the shaper-head made as it was, been legally justified in taking that responsibility, having a right to rely on the skill of those who acted in making or selecting it.
The testimony tended to show that the construction was novel in some respects. There was testimony tending to show that one of the differences between the shaper-head in question and others used before it was that in this the projecting knives, which were set in the solid body of the head, were set in parallel grooves, and were made with parallel surfaces, so that they were only held in place by the pressure of metal on metal, without shoulders, wedges, or any other device to hold them beyond friction; while in others there were such devices, by making the shank of the knife wedge-shaped, and thicker at the inner end than at the outer, or by some other device whereby the knife would be checked in its tendency to fly out of its socket.
The fact that a knife did fly out when fastened in as well as it was designed to be, and when the testimony indicated no imperfection in carrying out the design, had at least a tendency to prove that the design was bad. Never having been used again, there was nothing to indicate that it would have been any safer, or to overcome the proof that it had been made as safe as its nature permitted. There was at least enough to go to the jury on the question whether it was a reasonably safe implement and properly designed, and whether the principle involved in it was not a departure from safe methods as before applied. If there was such testimony, the fact that there may have been some conflict on one or another question would not allow the judge to deprive the jury of the power to determine the conflict.
The law does not hold persons using machinery to any absolute duty of insuring its safety. It does, however, require some care in introducing untried novelties. That which has been approved as safe by reasonable experience may be presumed safe by those who rely on that experience to justify them in selecting it. But where the result of any defect must be-an immediate danger to human life, it devolves on those who expose human life to the dangers of a new experiment, which turns out badly, to show that they have followed such a course as the understood rules of science or mechanics applicable to such matters rendered safe according to ordinary probabilities. This machine was, according to some, at least, of the testimony, made in violation of known rules of mechanics, in trusting to mere pressure to overcome the centrifugal tendencies of a knife revolving at great velocity. It was devised by defendant on its own responsibility. Whatever view the jury might have taken of the matter, the questions presented were distinct questions of fact, and ought to have been submitted.
It certainly cannot be said as matter of law that the deceased contributed to the casualty by his negligence. He was not a trespasser, and the knife was just as likely to be thrown in one direction as another. No one could have supposed that where he stood was particularly dangerous.
As the argument naturally rested chiefly on the withdrawal of the case from the jury, the questions concerning the rejection of testimony were not as fully presented as they other wise would have been. There is reason to urge that testimony was shut out concerning mechanical questions, and some others which might have thrown light on scientific subjects. It is not very clear that average juro’rs, or average persons not jurors, do not need some instruction on mechanical rules and scientific facts, which require some intimacy with practical affairs. Theoretical knowledge is not always practical knowledge, and many intelligent persons are deficient in the power of readily comprehending such matters. In the present case there was more or less conflict on some of the questions which the court seemed to regard as within the common knowledge of mankind.
The judgment should be reversed, and a new trial granted.
Morse and Champlin, JJ., concurred. | [
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Chaiiplin, J.
When this case was before us the first time, upon the testimony introduced on the part of the plaintiff, we held that the question of decedent’s contributory negligence was not free from doubt, and that the court did right in submitting the case to the jury. Mynning v. D. L. & N. R. R. Co., 59 Mich. 259.
■ When the case came before us again, we held that, by the plaintiff’s own showing, the deceased was chargeable with such contributory negligence as precluded a recovery (Mynning v. D. L. & N. R. R. Co., 64 Mich. 93), and the case was sent back for a new trial.
Ordinarily, where the plaintiff has failed to make a case by reason of its affirmatively appearing that the deceased was. himself guilty of contributory negligence, a new trial is .not ordered; but it appeared in the record in this case that another person, by the name of Coburn, witnessed the catastrophe, who was not called as a witness, and whose testimony might possibly have aided plaintiff in showing due care on the part of the deceased, and therefore we ordered a new trial.
Upon the last trial, this person was not called as a witness, and it may be presumed, either that his attendance could not be procured, or that his testimony would not shed any new light upon the transaction.
The case has again been tried upon substantially the same testimony as that which came under our review in the last trial, and has resulted in a verdict for the plaintiff. When the case was here last, we laid down the rule of law that must control the decision upon the facts then appearing upon the record before us. So long as the facts remain the same, the rule of law applied by this Court in the decision of the cause remains the law of the case in all subsequent proceedings therein.
It appears from the record before us that, upon the last trial in the court below, a stipulation was entered into between the parties as follows:
“No witnesses to be sworn on the coming trial of this cause except those which were sworn on the last trial; and either party may read such of the testimony given upon said last trial, as reported by the stenographer, as he may desire.”
Under*this stipulation, the plaintiff’s attorney read in evidence to the jury such of the testimony given upon the trial of the case as he desired. He refused to read to the jury the testimony of the witnéss McLaughlin, mentioned in the opinion when the case was last here. Thereupon counsel for defendant offered to read the testimony of this witness as testimony in plaintiff’s behalf. The plaintiff objected, and the court ruled that defendant might read the testimony. of any witness in his own behalf, but he could not introduce it as the testimony of the plaintiff’s witness. The defendant’s counsel excepted to the ruling, and then read the testimony of the witness McLaughlin in evidence.
The ruling was in accordance with the stipulation. Plaintiff’s attorney complained, upon the trial in which the witness McLaughlin testified, that he was surprised at the testimony given by him, and intimated that he had been deceived by the witness.
The witnesses Trafford and "Wakeman were sworn and examined on the behalf of the plaintiff. Their testimony was not materially variant from that given on the preceding trial. They testified as before to seeing the train approaching from the north; to seeing the deceased approaching the crossing, and coming towards them; that their eyes did not leave him from the time they first saw him, when he was within about 30 feet of the railroad crossing, until he stepped upon the track, and was struck by the train; that he was walking fast, his head down; and that they did not see him stop, or look towards the approaching train, and that they were looking at him the whole time.
The only legitimate inference that can be drawn from their testimony is that Mynning was aware of the approaching train, and purposely went íd front of it; or, which is more probable, that he was unaware of its proximity, and without paying attention, or giving the subject a thought, without taking any caution whatever, carelessly and negligently pursued his way, and in consequence was hit by the train and killed.
We have before us upon this record the same testimony and the same facts established that were present in the record when the case was last before us, and, unless we erred in that opinion, the decision in that case must rule this.
This is not a case where there was no living witness of the accident; consequently there is no room for the presumption, arising from the natural instinct of self-preservation, that the deceased was exercising due care to preserve his life or person from injury. Here there is no conflicting testimony upon the question of the contributory negligence of Mr. Mynning. There is no conflict between the testimony of Trafford and Wakeman, introduced by the plaintiff, and that of McLaughlin, introduced by the defendant. There is perfect harmony between them, and, if the testimony of McLaughlin is laid entirely out of view, or disbelieved, the plaintiff’s case is not improved, nor contributory negligence disproved.
Giving full faith and credit to the testimony introduced for the purpose of proving that the deceased was in the exercise of ordinary care at the time of the accident, and giving to the plaintiff the benefit of all legitimate inference to be drawn from such testimony, it becomes a question of law, for the trial court to determine, whether the testimony, conceding its truth, established the fact that Mr. Mynning was in the exercise of ordinary care. Upon this question, acting upon the testimony given in this case upon the last and preceding trial of the canse in the court below, there was no room for unbiased, reasonable minds to come to a different conclusion than that Mr. Mynning was not in the exercise of ordinary care in approaching and entering upon the railroad crossing in question.
It is needless to recapitulate the testimony. We did so in the opinion filed when the case was here last, and the testimony is no different now from what it was then.
The defendant’s counsel requested the court to instruct the jury that, under the evidence in the case, the plaintiff was not entitled to recover, which the court refused. This request raised the question of law, and it wa3 the duty of the court to pass upon it. He refused to so instruct the jury, but, on the contrary, gave them the following instructions, which, to say the least, are certainly unique.
After reading to the jury from the opinion of this Court a statement of the facts, from which we held that, as a question of law, the defendant was not liable, because of the want of ordinary care of Mr. Mynning, he said:
“ Now, gentlemen, if you should find the testimony in this case to correspond with what has been read to you as narrated by Justice Chahplin, in delivering this opinion, then you must come to the conclusion that the deceased was guilty of contributory negligence, and you must find against the plaintiff and for the defendant.
.“If, on the other hand, you should find that the testimony changed, or that any reasonable mind can come to any different conclusion than that the plaintiff was guilty of negligence, if there is any doubt on the subject, or a reasonable mind can form an opposite opinion, instead of the one which is stated here, and which the court has stated to you, then it would be for you to deliberate on this testimony, and ascertain if, from all of it, you can come to the conclusion that the plaintiff was not guilty of contributory negligence, and hence ought to recover.”
The jury are not only told that they are at liberty to come to a different conclusion upon the law of the case than that at which this Court arrived, but he puts the question of contributory negligence to them as if the burden of proof was \upon the defendant to show contributory negligence, and that it must be shown beyoud a reasonable doubt; instead of telling them that the burden of showing that the plaintiff’s intestate - was exercising due care, and did not contribute to the injury by his own negligence or want of care, was- upon the plaintiff. And this error is further emphasized in the concluding sentence of the following portion of this charge:
“It is claimed that there is testimony which conclusively shows that the deceased did not use ordinary care. If you find that to be the fact, if you find from the testimony that Mr. Mynning, the deceased, walked upon the railroad track knowing it to be there, and finding from the testimony that he was familiar with the surroundings, and knew that the track existed, which is of itself a notice of danger, — a railroad track being a notice of danger in itself, — I say, if you should find that he was familiar with the premises, and knew that track existed, and he walked upon the track, pay-’ ing no attention to its existence, — went there blindly, with his head down, and treating the highway as being continuous, without any railroad track crossing it at all, and paying no attention to anything, — then you should find a verdict for defendant of no cause of action. And this testimony must be such as to drive you to that conclusion, — to prevent your arriving at any other conclusion. ”
Further comment is unnecessary. The law laid down by the court in these portions of his charge was wrong, ■ and would call for a reversal of the judgment were the other point to which attention has been called not conclusive.
The judgment is reversed.
As it is not probable that a different case can be made upon another trial, one will not be ordered.
Sherwood and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
Sherwood, J.
The respondent was charged with breaking and entering a store in the night-time. He was convicted of the offense in the recorder’s court in the city of Detroit, and sentenced to imprisonment for the period of twelve years.
The information charges that he committed the crime on the second day of November, 1884, and the prosecuting attorney was allowed to prove that on the twenty-fifth day of October preceding the respondent was seen in company with one Moses Stone, who was afterwards convicted of committing the burglary charged in the information. This is complained of as error.
It appears from the record that the respondent and Stone occupied a rented room together, both before and after the burglary was committed, and that they were seen together on the evening of the second day of November, about 7 o’clock. Under these circumstances the evidence was properly admitted.
Upon the trial the prosecuting attorney upon the examination was allowed to have the detective who had caused the arrest of the respondent sit by his side and suggest to him' facts relating to the testimony, as he had ascertained them in his ferreting out the case. This was also assigned as error, inasmuch as the respondent had asked for the exclusion of the detective, who was a witness for the people, while the other witnesses were examined.
This was a matter entirely within the discretion of the trial court, and the record discloses no abuse of that discretion.
Witness McDonald, one of the officers who made the arrest of respondent in bed at a house of ill fame, with a pistol under his pillow, was permitted to state what occurred at the time he made the arrest, and that the respondent resisted the arrest. • We find nothing improper in the admission of this testimony.
At the close of the trial the respondent’s counsel asked the court to charge the jury that the—
“ Eespondent could not be convicted on the evidence of the breaking and entering charged.”
The court declined to charge as requested, and respondent’s counsel excepted.
The case upon its facts and circumstances was clearly one for the jury upon all the material allegations made in the information, and no error was committed in refusing the request.
The record discloses no error, and the judgment must be affirmed.
Chahplin and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
Chanplin, J.
Plaintiff brought ejectment and claimed title under a tax deed issued by the Auditor General for the non-payment of taxes assessed against the premises in 1874.
The sale was made in October, 1875, and the deed issued and dated in 1877, and recorded March 14, 1877.
In 1869 the Legislature passed an act entitled “An act to provide for the payment of taxes levied and assessed upon lands purchased and held for the non-payment of taxes,” which enacts—
“That no person shall be entitled to the recovery of the possession of land purchased and held by such person from the State, or held as grantee of a previous grantee or grantees of the State, for the non-payment of taxes, nor shall any such person or his legal representatives be lawfully entitled to the possession of any such lands, unless such person shall have, at any time before final judgment in his favor, or at the time of entering into such possession, either paid all the taxes levied and assessed upon such lands subsequent to the date of any tax deed under which he claims, or tendered the amount of taxes thus paid to the person who paid the same, if such person be the person against whom recovery is sought, or shall have acquired all the tax titles given for the taxes levied and assessed subsequent to such first acquired title, and previous to the entering into such possession.” How. Stat. § 1208.
Upon the trial, defendant introduced in evidence the amount of taxes which he had paid after the date of the tax deed, and also for three years prior thereto, aggregating $188.33
The circuit judge, after quoting the above statute, instructed the jury as follows: -
“ The law was in force at the time the assessment was made, and the lands sold for the non-payment of taxes, and the giving of the tax deed in question. It appearing in evidence in this case that the taxes for the years of 1877, 1878, 1879, 1881, 1882, 1884, and 1886, assessed against the lands in question, with amouuts given, and for the other years but amounts not given, have not been paid or the amounts tendered by plaintiff;, therefore he is not entitled in this case to maintain this action.
“ The taxes assessed against the lands in question subsequent to the execution of the State deed in question, and up to the time of the repeal of the section, are all subject to the statutory rule above set forth, and the plain meaning of the statute is that the plaintiff, before he can ask a judgment, must have paid or tendered the subsequent taxes assessed against the lands in question. There is something for him to do, and when he has discharged the statutory obligation then he can ask for judgment, but not until then. Under the uncontradicted proof in this case, I do not think the plaintiff is entitled to a verdict, and your verdict will be for defendants.”
Plaintiff’s counsel excepted to the construction given to the statute by the court, and to his directing a verdict for defendants.
This statute received a construction in the case of Sinclair v. Learned, 51 Mich. 335. It was there held that the plaintiff must pay or tender the taxes which have been assessed and paid by defendant subsequent to the date of plaintiff’s tax deed, with interest, before judgment can be rendered-in his favor.
So far the point is settled. But the further questions remain whether the plaintiff must show, as a part of his case, that he has paid all taxes assessed against the land subsequent to his deed, or has paid or tendered to defendant any taxes he ha’s paid subsequent to such deed, or whether it is a matter of defense to be interposed by the defendant.
In construing this statute, and arriving at the intention of the Legislature, we must consider all the acts of the Legislature bearing upon the rights conferred by a deed executed to purchasers at sales for delinquent taxes, as well as the statute concerning the action of ejectment. By the general tax laws it is provided that such deed shall be prima facie evidence of the regularity of all the proceedings, from the valuation of the lands by the assessors to the date of the..deed, inclusive, and of title in fee in the purchaser. Hence, in an action of ejectment by the holder of such title, ordinarily, lie has made out a prima fade case when he has introduced such deed in evidence, and the statutory judgment would necessarily follow, if no sufficient defense were shown.
It is only where the defendant against whom a recovery is sought is the person who has paid the taxes subsequently assessed, that the statute in question applies. Such defendant best knows the fact, and is possessed of the means of proof. It best accords with our practice that he should produce the evidence of such payment as a defense, not against the plaintiff’s title, but against his right to recover the possession until such taxes and interest are paid or tendered. It follows, also, the plaintiff has the right to. contest the question whether such defendant has paid such taxes, and also the amount claimed to have been paid. This becomes an issue of fact in the case, and should be submitted to the jury, and they should find the amount which defendant is to be paid or tendered before judgment can be rendered in plaintiff’s favor. The effect of the statute is to require the jury, in addition to the requirements specified in section 7815 of Howell’s Statutes, to specify in their verdict whether the defendant has paid any taxes subsequently to the date of the tax deed under which the plaintiff claims, and,- if they find that he has, to state the amount thereof, and the interest which has accrued thereon, from the date or dates of payment.
The court should receive and record the verdict; but no judgment can be rendered thereon until the plaintiff pays or tenders the amount so found by the jury to the defendant.
The proper practice would be for the plaintiff to enter a special motion, after such payment or tender, for leave td enter judgment, based upon affidavit of the fact of payment or tender, and notice to the defendant’s attorney, or the amount may be paid into court for defendant.
It follows that the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Morse, J.
The main facts in this controversy are found in the opinion of this Court in 61 Mich. 35.
At that time we ordered a new reference to a circuit court commissioner to ascertain and compute the amount due and unpaid upon the notes and mortgage, and that the complainants must render before such commissioner, on oath, an account of the rents and profits, and of the necessary outlay and expenses, and that the net rents and profits be applied on the indebtedness secured by the notes and mortgage.
In pursuance of such order such accounting has taken place, and it was found that there were no net rents and profits from the land.
The defendant moved to set aside and vacate the report of the commissioner, for various reasons. The court below denied the motion, and entered a decree for the complainants in the amount of the principal and interest due upon the notes and mortgage, as shown by the face of the papers. Defendant appeals.
One principal objection to the decree is that certain items of outlays and expenses were erroneously' allowed by the commissioner. As nothing was added to the amount due upon the notes because of outlays and expenses upon the land, and as the items complained of, if disallowed, would still leave the amount of the expenses in excess of the profits arising from the land, this objection is entirely without merit, and need not be discussed. Whether such items were allowed or disallowed, the amount of the final decree as rendered would be the same.
A claim is now made that the complainants are not entitled to interest, as the defendant has never had possession of the premises, and that certainly he should not be charged with interest during the life-time of his father, Oliver O. Hill, who during that time used the premises as his own, and none of the conveyances being recorded till after his death.
No claim of this kind was made when the case was here before, and it was not contemplated by our order that any question should be reopened except that of rents and profits.
It may be said, also, that the^defendant has not seen fit to answer, or even to put in any proof before the commissioner, in relation to the terms under which his father lived upon and worked the place after the deed to defendant was executed and delivered, and therefore we must arrive at the agreement between them as shown by the face of the papers then exe cuted. The notes and mortgage were dated April 4, 1882, and by their terms expressly drew interest from January 5, 1883. The court did right in computing interest from that date.
If, as defendant’s counsel now insists, he never asserted any title'to the land under his deed, he should, if he wished to repudiate the transaction, have tendered back to the heirs a deed of the premises, and demanded a cancellation of his obligations. But he saw fit in Foster v. Hill, (see 55 Mich. 540) to defend his deed, and, after the determination of the issue therein, he recorded it. This was an assertion of title, we think.
The objection that complainant Garrett W. Low did not appear for an examination, and that the commissioner refused to direct his examination upon interrogations pursuant to chancery rule 77, is not tenable. It fully appears from the records that he knew personally nothing about the rents and profits, or the outlays and expenses in cultivating the land, and also that he was without the jurisdiction of the court. The defendant had the benefit of a full examination under oath of all the parties who were personally cognizant of the matters in issue, which was all that he could ask.
The decree of the court below is affirmed, with costs of both courts.
The other Justices concurred. | [
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Sherwood, J.
The respondent was prosecuted criminally for libel before a justice of the peace in the city of Ionia, where he was duly convicted and sentenced to pay a fine of $100, and the costs of prosecution to the amount of $78.49, and, in default of such payment, to be imprisoned in the county jail for the period of 90 days.
From this judgment the respondent took his appeal to the circuit court for the county of Ionia, where a trial before a jury was had, and the respondent was again convicted, and sentenced by the circuit judge to pay a like fine, and the-same amount of costs, and, in default, to be confined in the county jail in the city of Ionia for the period of 75 days, upon which judgment respondent brings error.
The record presents but two exceptions for our consideration. They are stated in the record as follows:
“Defendant excepts to the refusal of the court to quash said complaint and the proceedings thereunder, and to discharge the respondent.
“ Defendant excepts to the ruling of the court overruling the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth grounds alleged in the respondent’s motion to quash said complaint and proceedings and to discharge the respondent.”
The defendant’s motion to quash was made before the trial in the circuit court commenced.
It is unnecessary herein to set out or discuss separately the nine different grounds, each of which is set out in the record. This motion was overruled by the court, and the respondent excepted. On an inspection of the reasons urged for the motion, we fail to discover any legal ground upon which the respondent’s motion can be sustained.
The second exception is to the refusal of the court to sustain the respondent’s motion to quash the complaint upon certain of the grounds before specified in the motion, and which are but a repetition of those already considered.
We have examined the whole record, and have found no error calling for correction or further discussion, and the judgment will therefore be affirmed.
Champlin and Morse, JJ„ concurred.
Campbell, O. J., did not sit. | [
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] |
Morse, J,
The writ of certiorari in this case was sued out to review the proceeding of the board of school inspectors in detaching certain territory and property from school district No. 5, in the township of Martin, Allegan county, and attaching it to school district No. 1, in the same town.
On the fourth day of May, 1887, the clerk of the board of school inspectors gave notice that the board would meet at a certain place designated .in the notice, on the twenty-first day of May, 1887, at 4 o’clock p. m., for the purpose of altering the boundaries of school districts Nos. 1, 4, and 6, in which notice the proposed alterations were specifically set forth.
The board met pursuant to said notice at the time and place mentioned, and proceeded to and did make the alterations as proposed in said notice. Doxey’s land was among the lands taken from No. 5 and attached to No. 1, and he claims in his affidavit for the writ to have been greatly damaged by such action.
The objections urged against these proceedings of the school inspectors are two, namely:
1. That the consent of a majority of the resident tax-payers of said district No. 5 was not obtained to the detaching of this territory, and that, in effect, it was dividing the district into-two districts, contrary to the statute.
2. That said board under the same notice, and at the same meeting, detached lands from districts Nos. 4 and 5, ke.ng two separate districts, and attached them to district No. 1.
In relation to this last objection, it appears that the board voted separately upon the question of detaching the territory from each district, and those present had ample opportunity of being heard upon each proposition. There was no such connection between the two hearings, or the action upon the-proposed detachments of territory, as to lead to any confusion, or prejudice to the rights of those interested.
We can see no valid objection to these matters being contained in one notice, or being acted upon separately at one meeting of the school inspectors.
As to the first objection, its consideration must depend entirely upon the statutory powers of the board.
By How. Stat. § 5033, the township board of school inspectors are authorized to divide the township into such number of school districts as they may consider necessary from time to time, and they may regulate and alter the boundaries of the same as circumstances shall render proper. This power is subject to certain restrictions found in chapter 196, How. Stat.
The limitations of their power necessary to be noticed in the consideration of this case are found in section 5011 of the same statute. This section authorizes the inspeeLors in their discretion to detach the property of any person or persons from one district, and attach it to another. It further .provides that—
“No district shall be divided into two or more districts, without the consent of a majority of the resident tax-payers of said district, and no two or more districts be consolidated without the consent of a majority of the resident tax-payers of each district.”
It is conceded that such consent was not obtained in this case.
It is contended by the plaintiff in the writ that the action of the board on the twenty-first of May, 1887, supplemented by further action at subsequent meetings, has in fact destroyed district No. 5 for all practical purposes of a school district; that there are now left within the boundaries of said district only three farms, and three families. The number of school children therein is not stated. No relief, however, is asked against this subsequent action of the board, and it is only brought into the case to show that, indirectly, the board has accomplished, without the consent of the taxpayers, what the statute forbids the school inspectors to do directly, and at one time.
The board in their answer return that they have no data from which to ascertain or state the assessed value of the property detached on the twenty-first day of May from dis trict No. 5, and attached to No. 1, but they think that the value of the property left in No. 5 exceeded that taken away and attached to No. 1.
It also appears from said return that the subsequent proceedings by which additional territory was detached from No. 5 was with the consent and at the urgent solicitation of a majority of the tax-payers then residing in the district, excluding the tax-payers set out of said district by the action taken on the twenty-first day of May, but the record of the subsequent meeting, which was on the first day of June, 1887, does not show such consent.
But we cannot concern ourselves with what was done at this meeting of June 1, or any subsequent meeting.
We are called upon by this writ only to determine the validity of the proceedings of May 21.
As to these proceedings, if the board had jurisdiction in the premises, we cannot interfere with their discretion, or review their action. Brody v. Penn Tp., 32 Mich. 272.
The school inspectors in this case did not undertake to divide the districts into two or more new districts, or to consolidate No. 5 with No. 1. If they had the power to detach any territory from No. 5 and attach it to No. 1, they had the right to take what they saw fit, unless such action would practically destroy the district. It is not shown that their action on the twenty-first of May produced any such result. If their proceedings on that day did not destroy the district, but left territory enough for school purposes, it was certainly competent for the board afterwards, with the consent of the remaining resident tax-payers, to consolidate the whole territory left within the district with No. 1, or any other district, if such other district also consented through its resident tax-payers.
It is not necessary for us to determine here whether they coul'd take such action as to leave only three tax-payers in the district, as the plaintiff in this writ does not complain of such action, and it is • doubtful if he could be heard to complain, having before said first day of June been lawfully detached from said district No. 5.
It follows that the writ in this cause was improvidently issued, and must be quashed, with costs.
Sherwood and Champlin, JJ., concurred.
Campbell, O.'J., did not sit. | [
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6
] |
Mouse J.
In 1880 the plaintiff was the owner and master of a vessel at Grand Haven, Michigan, incumbered by a mortgage of nearly 82,000.
He applied to defendants to loan him a sufficient amount to pay this mortgage, which, after much solicitation, they did; and on the fourteenth day of January, 1880, to secure them for this loan, the plaintiff gave defendants two promissory notes, one for 8966, payable December 1, 1880, and the other for 8966.98, due December 1, 1881, with interest at 10 per cent., which notes were secured by mortgage upon the vessel.
A contract, bearing date the same day, was executed between the parties, setting forth the advancement of the money by defendants to plaintiff, and the execution of the notes and mortgage, and providing, among other things, that the defendants should be permitted to ship all the lumber they might wish upon said vessel at the going rates <5f freight, and were—
“ To have as their own one shilling per thousand feet on all lumber shipped on said schooner during the seasons of the years 1880 and 1881, which amount they may retain on all lumber shipped for themselves, and which amount shall be paid over to them on all lumber shipped for other parties by said party of the first part [Dykes] on demand thereof.”
The defendants claimed that this contract was made at the same time the notes and mortgage were executed, and was fully understood and agreed to by plaintiff.
Dykes claims that the contract was not executed until several days after the making of the notes and mortgage, and testified on the trial that the clause in relation to the payment of a shilling per thousand feet of lumber was retained in said contract without his knowledge or consent; that when the instrument was read over to him in the office of E. W. Duncan, who drew it, he objected most decidedly to any such arrangement, and from what was said, and certain motions made by Duncan, he supposed that this and another objectionable clause were erased and stricken out of the contract, and, so believing, he signed it.
During the year 1880 plaintiff paid to defendants in all at various times $1,405, and in 1881 $1,170.12, making a total of $2,575.12.
In December, 1881, the plaintiff wanted to loan $100 of defendants. They declined to lend him any money, and claimed a balance due them of $1,200 or thereabouts. He finally paid them $1,000.
About four years thereafter he brought this suit in assumpsit in the circuit court for Ottawa county, to recover back the excess paid defendants, over and above the principal sum of said notes, and interest thereon at 10 per cent.
He claimed that the payment of the $1,000 was not voluntary, but under duress, the defendants threatening if he did not pay that sum to seize his vessel, tie it up, and sell it.
The defendants deny any duress. Various errors are assigned; but we think the cause was fairly submitted to the jury, who found for the defendant?.
It seems that the contract purported at the last of the attestation clause to be in duplicate. The original was admitted to be lost, and proof of its contents was made by copy. It also appeared that in fact no duplicate was executed. The plaintiff’s attorney objected to the introduction of the instrument, because no duplicate was ever made and given to plaintiff. It did not appear that any duplicate was ever intended to be made, and the plaintiff never required it. The objection was properly overruled.
Some testimony was received by the court, and afterwards stricken out. It is contended that the striking out did not cure the error of allowing it to be heard by the jury.. At first the court refused to receive it. Upon further argument it was admitted, under objection, the circuit judge expressing doubts as to its competency. Afterwards, upon reflection, and upon his own motion, he ordered it stricken from the case. We find no error in this action.
It must be that a trial court can take time to consider .evidence introduced, and, finding error in its admission, correct it by removing the testimony from the case, and cautioning the jury against giving it any weight or consideration in their deliberations. This was done here. It must be held, we think, that jurymen are ordinarily honest and intelligent enough to obey the admonitions of the court, and to discard from their minds all thought or influence of the rejected testimony.
It is not the habit of the courts of last resort, in civil cases, to reverse judgments on this account, unless fully satisfied that prejudicial error has occurred.
The admission of the contract was also objected to, on the ground that, upon its face, it was unconscionable and void. This objection could have no force if it had been voluntarily performed by the plaintiff. It was not a proper objection to its introduction as evidence of an agreement between the parties! The objection went to the merits of the case, if the plaintiff should establish that his performance of it was forced and under duress. ,
The very gist and essence of the plaintiff’s case was that he had been unduly compelled to pay usurious interest* or its equivalent. If he failed to show this, he could not recover. However hard the contract may seem, nevertheless it was not void, and, if the plaintiff voluntarily performed it, he could not thereafter question it or recover back the money paid upon it. Parties have the right as between themselves to make such contracts as they please, if they violate no law or public policy in so doing.
There is in this State no relief for one who has freely, and of his own accord, fulfilled a usurious contract.
The court instructed the jury, among other things, as follows:
“ If you find from the evidence that the plaintiff supposed, when he paid the shilling a thousand to the defendants, that it was a bonus, and that he had agreed to pay it as a bonus, and did so pay it, he cannot recover for such payments, if he agreed to pay the shilling a thousand as a bonus. Then,, if he knew at the time of the payment of the shilling per thousand that it was a bonus, and so paid it, he cannot recover in this action.
“ If you find from the evidence in this case that the plaintiff paid the defendants more than was due upon the notes and mortgage for principal and 10 per cent, interest, in excess of all sums you find was voluntarily paid as a shilling per thousand bonus, and the defendants, or either of them, threatened to seize and sell the vessel under the mortgage, and that the plaintiff paid such excess by reason of- such threats, and to prevent the seizure and sale of his vessel under the mortgage, then he is entitled to recover against these defendants such excess so paid them, with interest, thereon at seven per cent, from the twelfth of September, 1885.
“If the plaintiff paid to the defendants the sum of ten or twelve hundred dollars, or any part of this sum, in excess of the amount of the notes and ten per cent, interest, and also in excess of all sums voluntarily paid as a bonus of one-shilling per thousand for the use of the money, and made such payments by reason of the threats of the defendants, or either of them, to seize and sell his vessel unless he did so pay, and plaintiff would not have paid the same but for such threats, then such payment was not voluntary, and the plaintiff is entitled to recover back such excess from the defendants, with interest from the twelfth of September, 1885, to the present time, at seven per cent, per annum.”
These instructions put the plaintiff’s case as fairly to the jury as he could claim under the law. When the jury found, as they must have done, that he paid no money in excess of the amount of the notes and 10 per cent, interest, under duress or threats of seizure of his vessel, but paid such excess voluntarily and understandingly, his ease was ended.
The other errors alleged are of no importance. There was no question of application of payments in the ease. There was no duress claimed except in the payment of the last thousand dollars. If there was no duress, then it did not matter where or how the previous payments were applied.
The jury, under a fair charge and upon a fair trial, found, in substance, by their verdict, that the contract was made the same day the notes and mortgage were executed, and made understandingly by the plaintiff, and that all tj^e payments made by him were voluntary, and without mistake as to the purport and terms of his agreement. Under such a finding the law would preclude his recovery.
There is room for argument that, considering the character and uncertainty of the risk that the defendants took in lending money upon no security but this vessel, the contract cannot be classed as a hard one, but rather as one which, under the circumstances, was not unequal as between the parties, both taking the chances of a venture. But as the jury settled the issue against the plaintiff, the character of the contract, whether usurious or not, cuts no figure here. They find that he voluntarily performed it, knowing what he did, and therefore he lost all remedy against the usury, if there was any, in the agreement for the loan.
The judgment is affirmed, with costs.
The other Justices concurred. | [
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] |
Campbell, C. J.
Sheley sued Whitman for the price of certain gas chandeliers and pipe. The defense was the statute of frauds, the articles being worth $200. The court below allowed a recovery.
Plaintiff has a store and stock of goods in Detroit. Defendant, having a private house in Detroit which he desired to have furnished, came into the store in pursuance of plaintiff’s invitation, and was shown a number of articles for which the price was fixed at $200.' He gave no order then. Afterwards he wrote this letter, the essential parts of which were these:
“You may place the gas fixtures I selected to-day. ' The dining-room fixtures may as well be changed as talked over with the salesman who showed me the goods. Please put them up in fine shape, promptly as possible.”
Plaintiff subsequently took the articles out of stock, and set his men at getting them ready to put up in the house when completed and adjusted. Defendant, after writing the letter, telephoned to wait till he got back from Ionia. The foreman was afterwards sent to see defendant, and find out when he would be ready, and defendant countermanded his order.
If a verbal contract was valid defendant made one. But here the purchaser never accepted or received any article. He never paid anything. The letter, which is the only writing, does not show what the contract was. It conveys no information except by reference to the verbal agreement, and has none of the requisites of a definite agreement. It comes within the principle of James v. Muir, 33 Mich. 223, and of cases decided since, some of which are referred to in the notes of the last edition. The case is so plain that it need not be dwelt upon.
The judgment muse be reversed, with costs of' both courts.
The other Justices concurred. | [
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] |
Sherwood, J.
The plaintiff brought suit in assumpsit against the defendants in the Muskegon circuit, to recover the amount due upon a promissory note, of which the following is a copy:
“$1,500. Muskegon, Mich., July 1, 1880.
“ Twenty-six months after date we promise to pay to the order of William Buchtel fifteen hundred dollars, at the Bank of Akron, Ohio, value received, with interest.
“ L. G. Mason.
“C. S. Davis.”
The declaration was upon the common counts. Plea, general issue.
On the twenty-first day of March last, the cause was tried, and judgment rendered for the plaintiff for the sum of $2,278.50, the court holding, as matter of law, that interest should be'computed on the $1,500 until it became due, and upon the principal with the interest added from that date until the time of rendering judgment..
To this ruling counsel for the defendants excepted, and claimed, as no installment of either principal or interest was payable until the note matured, when both became due, the interest should have been computed on the note, at the rate of 7 per cent, per' annum, from its date, and which, added to the principal, should have been the amount for which judgment should have been rendered-.
We think the'amount should have been computed upon the note as claimed by the defendants’ counsel, and the circuit judge erred in holding otherwise. Hoyle v. Page, 41 Mich. 533; Rix v. Strauts, 59 Id. 364; Voigt v. Beller 56 Id. 140; In re Bartenbach, 11 N. B. R. 61; Brewster v. Wakefield, 22 How. 118; Hart v. Dorman, 50 Amer. Dec. 285.
The judgment must be reversed, and judgment will be entered in this Court in favor of the plaintiff for the amount found to be due upon the note on a computation of the interest in accordance with the rule herein suggested, and the defendants must be allowed their costs in this Court, and the plaintiff his in the court below, to he taxed by the clerk of this Court.
Champlin and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
McGrath, J.
This action is brought to recover for damages occasioned by reason of a defective cross-walk.
Within the limits of the defendant township is the-unincorporated village of Allen. The principal street in the village runs in an easterly and westerly direction through the village and township, and is known as “Chicago Street" or “Chicago Turnpike." In the eastern part of the village there is a street running from Chicago street north, known as “ Prentiss street." At the head of Prentiss street, on the south side of Chicago street, is a large brick school-house, in which were-employed 3 teachers most of the time, with from 120 down to 70 pupils in attendance. Opposite the schoolhouse, and on the north-east corner of Prentiss and Chicago streets, is the Baptist Church, largely attended by the people in that village and vicinity. There is across-walk extending across Chicago street from the south side of Chicago street, in front of the school-house, to. the corner of the church lot, and from that corner there-is a sidewalk running east on the north side of Chicago street in front of the church, also a sidewalk running-north on the east side of Prentiss street; and from the-end of the cross-walk in front of the school-house there-is a sidewalk running west on the south side of Chicago street, extending up into the business part of said village. Five or six families reside on Chicago street east of this cross-walk, and ten or twelve families north of these cor ners on Prentiss street. Said cross-walk was constantly .and much used by people of the Tillage and township in going to church, in going to the school-house, in going to the stores and post-office, and in crossing Chicago .street at the intersection of Prentiss street, there being no other crossing or cross-walk for them in that part of the Tillage, and had been so used for 15 years and upwards. At the intersection of Prentiss street with ■Chicago street in front of the school-house the ground was originally low, and the highway had been turnpiked. After the school-house had been built, and about the year 1870, one Prentiss built the cross-walk in question from the corner of the church lot across Chicago street to the south side of Chicago street in front of the schoolhouse. Years afterwards 'a sluice was put across the street under this cross-walk, by road work of the township, and the walk was repaired, and a part of the crosswalk was made a corering for the sluice. The injury ■occurred between the trareled part of the highway and the sidewalk. Plaintiff had judgment, and defendant .appeals.
Defendant contends that the act of 1887, imposing a liability upon townships, etc., is unconstitutional, in that the title prorides for the recorery of damages sustained, while the body of the act includes further proTisions, making it the duty of townships, etc., to keep cross-walks, etc., in repair, and empowers them to raise money for that purpose. This question must be regarded as settled by Tice v. Bay City, 78 Mich. 209, and Campbell v. Kalamazoo, 80 Id. 655. While in the first case -cited the precise question was not raised, yet the language is sweeping, and the last-named case inrolred the Tery •question as to whether the act created the duty.
It is insisted that the section creating the duty refers only to such cross-walks, etc., as are within the jurisdiction of townships, and under their care and control, and that cross-walks are not by any other provision, of law placed under their car.e and control.
Highway commissioners, and all other officials having special charge of cross-walks, are by the act declared to-be officers of, and subject to the general direction of,, the municipality in the discharge of their several duties. Highways are by other statutory provisions placed under the care and supervision of township officers, and, while there is no other provision for the care or construction of cross-walks in townships by townships, yet, if constructed, and thereby the public are induced to use them, they become, for such use, parts of the traveled way, and the township must be held liable in case they are-suffered to become unsafe and dangerous.
In the present case, however, the cross-walk existed in an unincorporated village, and by Act No. 176, Laws of 1881, passed after the law of 1879, in all unincorporated villages overseers of highways are authorized to lay out-such portion of the highway funds as they shall deem reasonable for the construction, care, and maintenance of cross-walks in such villages.
Highways or bridges within the limits of an incorporated village are not always under the care and control of the village authorities. Quinlan v. Manistique, 85 Mich. 22. The words “under their care and control”' must be held to have been intended to exempt municipalities so situated from liability.
It is next claimed that the walk where plaintiff was injured is not a cross-walk, and because the township made a sluice-way across the road-bed under this crossAvalk as originally constructed' it has ceased to be a crosswalk; in other words, that, inasmuch as the covering to the culvert serves a double purpose, the portions of the cross-walk which serve but the purposes of a walk have- lost their identity or character as portions of the crosswalk. This contention cannot be sustained. O’Neil v. Detroit, 50 Mich. 133, is cited upon the point that crosswalks extend the entire distance across the street spanned by them; but that case is far from holding that they must span the entire street, otherwise they are not crosswalks. In many instances, and in nearly all cases where there is a paved street, the pavement itself takes the place of the plank or stone cross-walk between the curb •lines, but that fact does not destroy the character of the walks leading from the sidewalks to the curbing.
The judgment must be affirmed.
Long, Grant, and Montgomery, JJ., concurred. Morse, C. J., did not sit. | [
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Grant, J.
This is an action on the case for seduction.
Plaintiff at the time was about sixteen years of age,, living with her parents in the country, and had hitherto been chaste. Defendant invited her to attend a dance with him in a village six miles from her home. They, had known each other for about a year, and she testified that she thought a great deal of him. They left her home about 4 o’clock in the afternoon, and, on arriving at the hotel, he obtained a bedroom, to which he took her. It is evident from her testimony that he took her there for the express purpose of debauching her. As soon as she had taken off her wraps in the room, he-immediately commenced his indecent proposals. Late in the night he proposed to her to go from the ball-room, to the bedroom, and after awhile she yielded to his solicitations.
It is unnecessary to state the evidence in detail. The court was in error in directing a verdict for the defendant. The case should have been submitted to the jury under the proper instructions, and especially in view of" plaintiff’s tender age.
The language of this Court in Stoudt v. Shepherd, 73 Mich. 596, is applicable to the facts in this case:
“This Court recognize, what we conceive to be the recognized doctrine of experience, that seduction may be accomplished by means of influence and persuasion intended to reach, and actually reaching, the result, which do not necessarily involve either a promise of marriage or pecuniary advantage; and that such effectual persuasion, which is the active cause of it, may be as distinct a grievance as the more venal representations, which, appeal to covetousness more than to excited feeling.”
The judgment reversed, and a new trial ordered.
The other Justices concurred. | [
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McGrath, J.
Plaintiff brings an action on the case. His declaration contains four counts.
The first count, after setting forth that plaintiff was-a true, honest, just, and faithful citizen, had never been suspected of dishonesty or trickery, and had deservedly obtained the good opinion and credit of his neighbors and other good and worthy citizens, sets forth that on the 31st day of December, 1890, and for a number of years prior thereto, plaintiff had been engaged in business, and-in such business deservedly enjoyed an unquestioned credit, a large and constantly increasing trade, and was-in easy and comfortable financial circumstances, and was reaping large profits; that defendant, contriving and maliciously intending to injure plaintiff in his good name, fame, and credit, and to injure and annoy him in and about his business, and to break up said business, on the date last named filed in the clerk's office an affidavit in attachment, which is set forth in full. The affidavit alleges that the plaintiff here is indebted to the defendant-here in the sum of $8,431, and that defendant—
“Has good reason to believe, and does believe, that the said Charles T. Oadwell has fraudulently contracted the debt and incurred the obligation above described.”
The declaration alleges that said affidavit was false and malicious, and was made without any reason or probable cause whatever; and that defendant, “further contriving and maliciously and wickedly intending to injure the said plaintiff, sued out of said court a writ of attachment in the usual form against the lands, tenements, goods, chattels, moneys, and effects of said plaintiff,” which writ of attachment was dated December' 31, 1890; that, by virtue of said writ of attachment, the sheriff did proceed to levy and seize upon the goods and chattels of the plaintiff, describing said goods and chattels; that the said levy and seizure were made at the instance of defendant; that possession of said goods and chattels was taken and held for a long space of time, thereby disturbing and injuring the business of the plaintiff; that said attachment was known to plaintiffs customers, and to the trade generally, and plaintiff was greatly injured in his credit and reputation; that plaintiff was compelled to move for the dissolution of said writ of attachment, and was thereby put to great inconvenience and expense in obtaining such dissolution and in defending said suit.
Plaintiff alleges that—
“He did not on the 31st day of December, A. D. 1890, owe the said defendant the sum of $8,431, or any part, thereof; that he never fraudulently contracted any debt, or incurred any obligation to the said defendant or any other man; that said defendant well knew these facts, and made the affidavit aforesaid and procured the said writ of' attachment for the express purpose as hereinbefore set. forth, and without any reasonable cause to believe that plaintiff had fraudulently incurred any obligation towards, the said defendant, as in said affidavit described, and had no good reason to believe that his affidavit for writ of attachment was true in any sense whatever; that plaintiffs, credit has been greatly injured by reason of said attachment; that his business has been broken up, and that said defendant has caused news of said attachment to be circulated among the patrons and customers of said plaintiff, and to be advertised and published and circulated in the-city of Stanton aforesaid, State of Michigan, and in other-states, where the said plaintiff had business and had customers, and that the circulation of said reports, and the-taking out of said attachment in' manner aforesaid, has. greatly injured said plaintiff.”
The second count is a summary of the first.
The third count alleges great injury to his credit and reputation with one Knapp, between whom and plaintiff certain business relations existed, and the destruction of that business.
The fourth count charges that the said defendant, “'intending to injure and destroy the good name, reputation, and credit of plaintiff in his trade and business, and to cause him to be regarded as a person of no credit, worth, or substance, and in insolvent circumstances and dishonest, and unworthy of the confidence of the business community, and the persons with whom he did business,” on December 31, 1890, in the hearing of divers persons, publicly, falsely, and maliciously said and declared of and concerning the plaintiff, and his circumstances and his trade and his said business, and of and concerning the honesty of the plaintiff, certain false, scandalous words. Then is set forth, with the proper innuendo, the language, which was as follows:
“ Cad. is bankrupt now. I don’t know where his money has gone to. He couldn’t pay a dollar. That it was a deliberate steal on Charlie’s part. I never was let down so. I had so much confidence in Charlie, I was not looking for it.”
It further alleges that, with further malice towards plaintiff, the defendant, on the same day, in another discourse, published of and concerning plaintiff certain other false, malicious,.and slanderous words. Then is set forth, with innuendo, the words, which were as follows:
“I calculate he is done doing business in this county; that I will tie him up so he cannot do business; and that I have tied him up so that he cannot do business any more in this county; and that he can never do any more business in this, county again; that he could not find any property belonging to plaintiff, and that he could not find any property amounting to anything belonging to plaintiff; that Cad. couldn’t help you; that he was bankrupt, and was a damned dirty scoundrel; that he had put too much confidence in him; loaned him money; given him his name, — then to have him turn around and cut my throat in that way; that he was bankrupt and didn’t own a dollar.”
We do not think that, under this declaration, plaintiff should have been compelled to elect as to which count or counts of his declaration he would proceed under. The declaration sets up the filing of an affidavit charging plaintiff with fraudulently contracting the debt, the 'suing out of a writ of attachment based upon said affidavit, the seizure of plaintiff’s goods by virtue of said writ; and, in the last count, the circulation of a report that plaintiff was bankrupt; that the indebtedness arose out of a deliberate steal on plaintiff’s part; that no property belonging to plaintiff could be found; that plaintiff was a dirty scoundrel; and that defendant had helped plaintiff financially, and that in return plaintiff had turned and cut his throat. The seizure of plaintiff’s goods, the injury to his business, and the expense and' trouble of a defense are set up, but, in addition thereto, the declaration counts upon and the principal complaint is the injury to plaintiff’s reputation, fame, and credit as a business man.
Mr. Cooley, in his valuable work on Torts, says:
“The wrong of a malicious prosecution is akin to the wrongs known under the designation of slander and libel. Though it is injurious in that it is likely to subject the party to expense and trouble to make good his defense, it is also a most - effective species of defamation, the defamatory matter being not only published, but made more formal, and apparently authoritative, by the machinery of the law being made use of for the purpose.” Chapter 7, p. 193.
The malicious suing out of a writ of attachment based upon a false allegation of dishonesty and fraud in the contraction of the debt is injurious and actionable, in that it is defamatory. The reports circulated by defendant were of the same general character, referred to the same dealings between the parties, and were likewise defamatory of plaintiff’s reputation, fame, and credit as a merchant. It is well settled that, in an action for slander, plaintiff, after proving the words alleged, may give, in evidence other slanderous words of like import, to show malice, or may show a repetition of the slander in aggravation of damages; nor does the rule limit the evidence to verbatim repetitions, but allows proof of “substantially similar slanders likely to make the same impression on the community.” Thompson v. Bowers, 1 Doug. 321; Leonard v. Pope, 27 Mich. 145; Fowler v. Gilbert, 38 Id. 292; Brown v. Barnes, 39 Id. 211. The real gravamen of actions for malicious prosecution being defamation of character, why should not the plaintiff be-permitted to prove other charges of the same slanderous character, which are calculated to produce the same effect? As the plaintiff was entitled to make proof of these slanderous charges without counting upon them, he was entitled to set them up in a separate count in the same declaration, and to go to trial upon them in connection with the other allegations. Eepetitions of a slander tend to show malice, and plaintiff cannot be deprived of the right to make the showing because he has counted upon such repetition.
After having elected to proceed upon the first three counts of his declaration, the court directed a verdict for defendant, for the reason that the attachment suit had not been determined when this suit was commenced. The case of Brand v. Hinchman, 68 Mich. 590, is decisive of that question. It was there held that the settle ment of the claim for which the action was brought did not bar the institution of a suit for maliciously suing out the writ, and that such suit could be maintained without reference to the status of the first suit. It appeared here that, after the institution of this suit, defendant in the attachment suit moved for a dissolution of the attachment, and the same was dissolved. Under the rule laid down in Brand v. Hinchman, a motion to dissolve in the. forum provided by statute need not precede the bringing of the suit for maliciously suing out the writ. It is undoubtedly true that, had the motion to dissolve the attachment been first made, plaintiff would have been compelled to wait until the determination of that proceeding before bringing this suit, but the motion to dissolve afterwards made did not affect the suit once instituted. Plaintiff would have a right to show the subsequent dissolution of the writ, and defendant, in case there had been an adjudication in his favor, could change his plea, and set up such adjudication.
The judgment below is reversed, and a new trial ordered, with costs of this Court to plaintiff.
Morse, C. J., Long and Montgomery, JJ., concurred with McGrath, J. Grant, J., concurred in the result. | [
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Long, J.
Plaintiff brought suit in trover against -defendants in the St. Clair circuit for timber claimed to have been taken and converted by them from land in Oscoda county. The cause was tried before a jury, and •defendants had verdict and judgment. At the time of the claimed conversion the land belonged to Currier & Halleck, who afterwards, and before this suit was commenced, sold the land to the plaintiff, and assigned their right of action.
Upon the trial, practically the sole ground of contention between the parties was upon the location of the section line between sections 7 and 18, town 26 N., range 1 E. The defendants owned the N. W. £ of the N. W. £, and the S. i of the N. W. i, of section 18; and the plaintiff owned the S. W. ¿ of section 7, and the N E. i of the N. W. ¿ of section 18. The map on following page illustrates the situation.
The east corner of sections 7 and 18, at A in the dia.gram, was undisputed, as was also the east corner of sections 12 and 13 of the town west, at C in the diagram. Plaintiff claimed that the section line between sections 7 ■and 18 ran, as shown on the diagram, from A to B, while the defendants claimed that the line ran as shown by the dotted line from A to C.
The plaintiff, to make his case, introduced the field- motes of the original surrey, which show that, running west from the south-east corner of section 7, the west boundary of the section was intersected 15.9 chains south •of the section line between sections 12 and 13, at the point B; and that at that point a post was set, with two
■witness trees, both aspen, one north and east, at a distance of 7 feet, which would be on section 7, and one south and east, 10 feet distant, which would be on section 18. It is not claimed by the plaintiff that these Witness trees were found, but that aspens were found dead and decayed at the place indicated by the field hotes. There was no contention but that the corner post between sections 12 and 13 is located at point C; that the witness trees marking that corner are still standing. The defendants’ contention is that that post not only marks the corner of sections 12 and 13, but also marks the corner between sections 7 and 18 of township 26 N., range 1 E.; so that the controversy is narrowed down to the one question, whether there was any evidence to go- to the jury tending to establish the post at point 0 as the one fixed by the government survey establishing the- corner between sections 7 and 18 at ■ that point.
The court instructed the-jury as follows:
“If there are visible monuments, as posts, established by the evidence, they will control courses and distances, and are the best evidence as to the location of the line originally run; that is, while the field-notes are supposed and presumed to be correct in their calls for courses and distances, yet if the line as indicated by such fixed monuments, ascertained and established by the-evidence to your satisfaction, differs from the line called for by the courses and distances in the field-notes, the-latter must yield to the former in determining the true-line.”
The court further instructed the jury—
“Monuments always control courses and distances. This is an inflexible rule; but you must be satisfied they are the original monuments, and those so called for by the original survey. All that a surveyor can do is to direct attention towards the ascertainment of the actual location of the original land-marks. * * * The field-notes state the line to be 15.9 chains below the southeast corner of section 12, and the north-east corner of section 13, of the township next west of the meridian-line; and the question is, was it established there, or was; it actually located opposite this corner [between sections 12 and 13], so that the line was continuous across the-meridian line? * * * If you are satisfied from the evidence that the corner was actually established at a different place than called for in the field-notes, that should govern; and this question you are to determine from the evidence of the surveyor and the other experts, and all the evidence given in the case and the facts shown by the testimony."
Plaintiff excepts to this portion of the charge, and contends that “ this rule is not inflexible; that, other things being equal, it may properly be said that monuments control courses and distances, yet the rule should not be stated as invariable, and not subject to any modification;" and insists that his third request to charge should have been given, which, in substance, was that the section line between sections 7 and 18 is at the point B indicated on the diagram.
The defendants offered testimony of witnesses who had been engaged for years in looking land, and were familiar with the woods and the government surveys, and they testified that the corner of sections 7 and 18 of the township east of the meridian line, and 12 and 13 west of it, was a common corner, fixed by the same post, and witnessed by four witness trees, having upon them the usual government marks indicating that the post was identical for the four corners. They also testified that it was plain to be seen that the line ran directly across the meridian, and that, leading east, it was a well-defined line, bearing upon it evidence of having been blazed through by the government surveyors, and that upon such line was a sight tree, notched upon both sides, such as they had only found upon section lines run by the government. There was some contention as to whether the witness trees to the post at point C on the diagram bore the principal government mark, indicating the corner post between sections 7 and 18, and also as to whether the witness trees were of the same specie as indicated by the government survey. It is shown, however, by the testimony, that the corner south of there, that is, between sections 18 and 19 in the township east, and 13 and 24 in the township west, is a common corner for all four corners of these sections, and that the line between these sections extends directly east and west across the meridian. The testimony also tends to show that the point C, which defendants claim to be the true corner, is just 80 chains north of that point. At point B, where the plaintiff contends the corner is located, nothing was found upon the ground that would indicate that there was ever a government line located there, nor was there anything anywhere upon the line as run by the surveyor tending to show that the government had ever surveyed a line where the plaintiff insists it should be established, and, in fact, by following the field-notes the survey falls short 5 chains in reaching the meridian line.
It is claimed on the part of the plaintiff that the rules by which the surveyors were governed, under the act of Congress of 1805, produced double corners upon all the exterior lines of the townships, and that, therefore, it is to he presumed that the post found at point 0 on the diagram, being the corner between sections 12 and 13, was not intended as a corner post for sections 7 and 18. It appears, however, from the testimony of. Mr. Bandall, a surveyor introduced as a witness by the plaintiff, that the post set just one mile south of that point was witnessed by four trees, plainly indicating it as the common corner of those four sections, so that it would seem that the surveyor in making this survey used but one post to establish the corners of the four sections.
We think this some evidence, in connection with the other facts and circumstances, to go to the jury, from which they might determine that the one post set at point C was intended to mark the corners of the four ¡sections, 7 and 18 and 12 and 13. The court was not in -error, therefore, in directing the attention of the jury to this monument, and stating to them that, if they found from the testimony that this monument established by the .government surveyors is the true corner of sections 7 and 18, it should control the courses and distances indicated by the field-notes.
It is claimed on the part of the plaintiff that the evidence did not tend to show that the witness trees to this post at point C bore the true government mark, as at the roots of the tree the letters “B. F. T.” did not •appear. The witnesses testified that the trees bore the mark, “ T. 26 N., 1 E., S. 7.” It is also claimed that ■one of these trees was not of the species mentioned in the field-notes. There would be great force in the contention that there was no testimony from which the jury would be justified in finding this to be the true corner of the sections if the question rested wholly upon these trees, as the true witness trees, to mark this as the ■corner of sections 7 and 18; but the jury had a right to -consider the other facts and circumstances tending to -establish this point as the true corner of these sections. The location of the corner post one mile south, the one post marking the four corners, together with the fact of ■the blazed line eastward from point C and the sight tree upon that line, added great weight to the other evidence in establishing point C as the true corner. The fact, also, that the plaintiff’s testimony showed that the point claimed by him as the true corner could not be -established by any witness tree and other evidence that the corner had ever been located there, gives strength to the defendants’ claim that that never was established as the corner of the section, but that point C was the true -corner.
We are satisfied that there was some evidence to go to the jury fixing point C as the true corner, as an established monument, and the court was not in error in saying that, if the jury found that to be a fact, it must control courses and distances.
We find no error in the record, and the judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Grant, J.
The bill in this case was filed- for an accounting against Emma A. McIntyre as trustee. The other defendants are made parties on the ground that, they are in possession of some of the trust funds.
One Joseph Shaw died in 1876, testate, leaving three-children, the defendants, and one granddaughter, the complainant. He appointed one Dwight Hunt as executor. The bill sets forth a provision' of the will by which $1,000 was bequeathed to Emma Shaw, now Emma A. McIntyre, in trust for complainant, to be paid to her upon her marriage, or upon attaining the age of 21 years. The bill alleges that the will was duly probated; that Hunt was appointed executor; that he fully administered the estate, except paying the amount of the legacy; that he has none of the property of the estate-in his hands; that it has all been turned over to the defendants; that the defendants are the sole persons interested in the estate; that said Emma A. McIntyre did not ‘formally in writing accept the trust, but that she did in fact accept such trusteeship, has received from. the other defendants large sums of money to hold in trust for the use and benefit of complainant, and to pay, satisfy, and discharge such legacy, and that she has at various times, as such trustee,»paid to complainant $401 as a part of the. accumulated interest upon said legacy.
The bill prays for an accounting, and that defendant Emma may be directed to pay such amount as may be found due and payable from her as trustee; that the defendants may be directed and required to pay such balance to her; and that, in the event of default, the real and personal property constituting the estate of said Shaw, deceased, and which was charged by his will with the payment of said legacy, be sold, and the legacy paid out of the avails. It contains jalso a prayer for general relief.
To this bill the defendants demur, alleging that the ■executor was a necessary party, and that complainant has an ample remedy in the probate court.
The demurrer was sustained.
We think this case is clearly within the rule of Weaver v. Van Akin, 77 Mich. 588, and Wooden v. Kerr, 91 Id. 188.
If the defendant Emma A. McIntyre has received any of the trust fund created by the will, the probate court has no jurisdiction to order her to an accounting. A court of chancery is the proper tribunal for that purpose. In such case she would be estopped to assert that she had not formally accepted the trust. It is sufficient to hold her, if such fund, or any part thereof, has come into her possession, and she has treated it as a trustee.
The other codefendants, under the allegations of the bill, are proper parties. To what extent, if at all, they shall be held liable, will depend upon the proofs.
The executor is not a necessary party, even if he were within the jurisdiction of the court; but the bill alleges that he has removed from the State. But in no view of the case is it necessary to bring him in. Tinder the allegations in the bill he has settled the estate, and turned the property all over to the parties interested. What decree, therefore, could be entered against him?
It is true that the allegations of the bill might very properly have been more specific, but we think they are sufficient to entitle the complainant to an answer and a hearing.
The decree must be reversed, with costs, and the case remanded for further proceedings, with leave to answer according to the rules and practice of the court.
The other Justices concurred. | [
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] |
Long, J.
This action was brought upon a life insurance policy issued by the defendant company upon the life of Mary Kelley, now deceased. The plaintiff and Hattie Cook, the daughters of Mary Kelley, are the beneficiaries named in the policy. Hattie Cook assigned her interest in the policy to the plaintiff.
The benefit certificate issued by the company bears date July 10, 1888, and on June 5, 1889, Mary Kelley died. June 10, 1889, notice of her death was forwarded to and received by the defendant company. These proofs were returned as incomplete June 12, and completed proofs were furnished July 30 following. On September 9, 1889, defendant notified plaintiff’s agent that it would contest its liability, and continued negotiating with the parties until October 31, 1889, when it caused a letter to be written offering to pay 842, by way of compromise, and stated that the company had became reasonably well satisfied that the plaintiff and Mrs. Cook did not willfully intend to defraud the company. The offer of compromise was declined, and, after further correspondence, negotiations between the parties ended. March 27 Mrs. Cook assigned her interest in the certificate of insurance and all her claims against the defendant company to the plaintiff. Suit was brought March 28, 1890. The-defendant pleaded the general issue, and gave notice:
1. -That the policy was issued “in pursuance and in consideration of, and in reliance upon, certain . material express conditions, agreements, stipulations, and warranties contained in the application for said policy, together with the declarations, representations, and answers to the questions contained in said application, and that each and every of the warranties and stipulations, declarations and representations and answers-to questions in said application contained, were materially .false and untrue, and false and untrue in every part and portion thereof, and by the said Mary Kelley and Naney M. Voorheis and Hattie E. Cook known to be false and untrue at the time of making the same, and each and every of them.”
2. That the policy issued was a Michigan contract, and void under and by virtue of the laws of the State of Michigan.
3. That the policy was issued upon express conditions and agreements mentioned in the by-laws of the company printed on the back thereof, and that one of the by-laws so printed was that no suit or action against the company should be sustainable in any court of law or chancery unless such suit or action should be commenced within nine months next after the death of the person insured, and that this suit was not commenced within that time.
On the trial the plaintiff had verdict and judgment for $224.
Defendant brings error.
The defendant company is a corporation organized under the laws of the state of Indiana, and having its principal office at Elkhart, in that state, and by its bylaws purports to insure “any person between fifty and eighty-five years of age, of. sound mind and body and in good health.” The application for the insurance was made and signed by Mary Kelley, July 3, 1888, in the presence of the local agent of t.he company at Kalamazoo, this State. Her age is stated therein at 71 years. Upon the back of this application is indorsed the certificate of her medical examiner, bearing the same date. This application and certificate of examination are indorsed, “Approved July 10, 1888,” by the medical director of the defendant company. Upon this application, medical certificate, and approval by the medical director of the company, the benefit certificate issued, signed' by the president and secretary of the company, and dated at its office in Elkhart, county of Elkhart, state of Indiana, July 10, 1888.
Section 12 of the by-laws .provides:
“The membership fee is payable at the time the application is written, and will be refunded if the appli-, cation is declined.”
Section 6 provides that the hoard of trustees shall appoint from their number, among other officers to be chosen, a medical director. By section 25 all assessments are made payable at the home office of the company at Elkhart, Ind., and no payment to any agent or collector is to be binding on the company until received and accepted by the company at its home office.
Defendant’s counsel in their brief discuss the questions, which they raise under four general heads:
1. That the policy was void, because issued in the State of Michigan upon the life of a person of an age whereon a policy is directly forbidden by statute.
2. That no insurable interest was shown to have existed in plaintiff (or her joint beneficiary) in the life of the insured.
3. That, if any recovery upon this policy could be had, it could only be in behalf of the heirs of Mary Kelley under the statute.
4. That, in the policy or certificate, the period within which action might be brought to recover upon the policy was limited to nine months from the death of the party insured, which period had more than elapsed at the time the action in this case was commenced.
There might be some force in the position taken by defendant’s counsel under their first proposition, if the policy were to be regarded as a Michigan contract. It is true that the application was taken in Michigan; but by the by-laws indorsed upon the policy it could have no force until approved by the medical director at Elkhart, Ind., and it is' apparent from other provisions of the by-laws that no contract was to be consummated which should be binding upon the defendant company until the membership fees were paid to the company, and the application approved by the company at its home office; and, that no mistake might occur as to where the contract was to be regarded as having been executed and consummated, the defendant company provided in its Blank form for membership, which was furnished to Mary Kelley and signed by her, the following: “It is further agreed that this contract.shall be considered as having been entered into at Elkhart, Ind., and shall be .governed by, and construed in accordance with, the laws •of said state;” yet, in the face of this provision of the by-laws and this stipulation in the application for the insurance, counsel for' defendant contend that the contract is to be construed as a Michigan contract, and not •one made and consummated in the state of Indiana, and that by the Michigan statute the contract would.be absolutely void.
The court very properly held that the contract was ■consummated in Indiana. There was no proof offered tending to show that the contract was void under the laws of Indiana. The statutes of Indiana were not offered in evidence on the trial, and at the common law the contract would be valid. We must regard the contract, therefore, as binding upon the defendant company.
We think there is no force whatever in the second ■proposition. By the insurance policy) Mary Kelley, the insured, became a member of the defendant company. The beneficiaries named in the certificate were two of the daughters and heirs at law of Mary Kelley. By the by-laws of the company, being children of the insured, they had a right to be named as beneficiaries in the policy. They had such an insurable interest that clearly, by the terms of the contract, they had a right to recover. Association v. Houghton, 103 Ind. 286 (2 N. E. Rep. 763); Amide v. Butler, 111 Id. 578 (12 N. E. Rep. 518); Fairchild v. Association, 51 Vt. 613.
The third proposition of defendant’s counsel we need not discuss, as the contract was made in Indiana, and by the terms of the contract the plaintiff had a right to recover.
As to the fourth point raised, we think the company is not in a position to take advantage of the fact that the suit was not brought within nine months after the death of Mary Kelley. Twenty-three days more than that time had elapsed when the suit was actually commenced; but the company had during that time made overtures for settlement of the claim. The company did not notify plaintiff that it would contest its liability until late in September, and continued negotiating until November. The time limited for the commencement of the action could not commence to run until after the cause of action accrued, and the action did not accrue until after the furnishing of the proofs of loss. But beyond this-time it was extended by the negotiations for settlement- and overtures made by the defendant company looking to a settlement. The company could not delay the party entitled to bring suit by promises of payment and overtures for settlement beyond the period fixed for bringing the suit, and then set up in its defense that the action was not brought within the limit of time stated in the-contract. The court very properly charged the jury:
“ That, until after negotiations ceased, the law would not compel the bringing of the suit, and that period of time would have not only to be excluded, but that would excuse the bringing of it within nine months.”
We think this instruction was correct, as applied to-the facts in this case. We find no error in the record-
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Morse, C. J.
The defendant, as sheriff of Kent county, represents in this litigation attaching creditors of Clinton H. Hopkins, a son of the plaintiff. The plaintiff brought replevin for the goods attached, and recovered judgment in the Kent county circuit court.
It was shown by the plaintiff on the trial that his son, who was in the mercantile business at Oedar Springs, was. unable to meet his obligations; and that plaintiff was signer of two notes, with his son, to one McBryer, for the means with which to engage in business. These notes were for $1,000 and $800, and there was due upon them, December 15, 1890, $1,898. On that day plaintiff took up these notes and gave his individual note in their stead, and his son gave him a bill of sale of the stock and fixtures in his store, estimated to be worth $1,500. The book-accounts, amounting to about $700, and what cash there was on hand, were retained by the son. Plaintiff then went to the store with his son, who delivered the key to him, and informed the clerk that plaintiff was thereafter to be proprietor. Plaintiff then hired the clerk and his son to run the business for him. Two days thereafter the attachment levies were made. December 23, 1890, plaintiff replevied without making any demand for the goods.
It is contended that a demand should have been made, as the goods were found in the possession of the son, Clinton H. Hopkins, against whom the writs of attachment ran. Authorities are cited to the effect that, where property seized on attachment or execution is found by the officer in the actual custody of the person named in the writ, the possession under the levy is lawful, and a demand is necessary before replevin can be brought.
In this State, a demand before suit is not requisite if, at the time of the levy, the goods seized are the property of the person suing in replevin. The fact that such goods are in the lawful possession of the person named in the writ of attachment or execution does not affect the right of the owner as against one taking possession of them in hostility to him. The question of demand before suit by the owner to regain possession of his property depends upon whether the taking was lawful as against him. If the plaintiff in this case had a right to recover this property from the sheriff, no demand was necessary. The sheriff may have, in good faith, levied upon these goods, believing them to be the property of Clinton H. Hopkins; but, as the right of plaintiff, to regain possession of them does not at all depend upon the good faith of the officer in taking them, there is no good reason, as shown in Trudo v. Anderson, 10 Mich. 357, for a demand before suit. The- taking, if the plaintiff was owner, was a trespass, and would itself have constituted a conversion in trover without proof of a demand and refusal.
There are several assignments of error to the refusal of the circuit judge to give defendant’s request to charge. These requests are not set out in the bill of exceptions, nor in the printed.record, except as they appear in the assignments of error. These assignments form no part of the bill of exceptions, and we cannot presume against the validity of a judgment that a request to charge, not found in the bill of exceptions, was presented to the circuit judge, from the mere fact that such request is set out in the assignments of error. The assignments, therefore, as to the requests not given by the court, will not be considered. Lindner v. Hine, 84 Mich. 512.
It is assigned as error that the circuit judge modified the tenth request of defendant, which was as follows:
“ The sale must be accompanied by an actual and continued change of possession as well as a nominal and constructive change, or the transaction will be deemed fraudulent as against creditors; and a construction which would allow the vendor or assignor of a stock of goods to continue in possession thereof, and to sell them out as the agent of the purchaser or assignee, would render this statutory provision for the prevention and detection .of frauds a mere nullity," — by adding to the same: “ That is, if you should find that Clinton H. Hopkins was left there in charge of the goods, to sell out, as a mere figure-head, and there was not an honest and open transfer."
It is claimed that this request, as presented, was good ]aw, and applicable to the case under the ruling of this Court in Doyle v. Stevens, 4 Mich. 93; citing with approval the language of the court in Butler v. Stoddard, 7 Paige, 166. But it was held in Doyle v. Stevens that, if there was any evidence tending to show an open, outward change of possession and a continuation of it, it would be a question of fact for a jury. In this case the transaction between the plaintiff and his son was not concealed from any one. The day the alleged sale took place the fact was made known to McBryer, who was a creditor to the extent of over $1,800, and the clerk in the store was made acquainted with the change. All the possession that could have been taken was taken, except the putting out of the son as an employe, and the going in of the plaintiff to manage the store personally. The plaintiff was not a merchant, and, unless he was precluded, as a matter of law, from hiring the son to manage the business for him, the question whether or not there was such a change of possession as satisfied the statute was one for the jury to determine. We do not think the defendant was entitled to the request as worded, as it left out an important element, to wit, that, even where there is not such a change of possession as will remove the presumption that the sale is fraudulent, it is still open to the purchaser to show that the sale was made in good faith, and without any intent to defraud creditors.
But it is further contended that this modification of the request placed 'the burden of proof upon the defendant to show that the transfer was fraudulent as against creditors, when the fact appearing, as it did, that the son was left in the full management of the business, negatived the idea of an actual and continued change of possession, and therefore put -‘the burden, under the statute (How. Stat. § 6190),, upon the plaintiff. And in this connection complaint is made of the charge of the court, as follows:
“And, indeed, in order to constitute a valid delivery and change of possession, it is not necessary that the buyer himself should actually have ever been present in the store or where the property is, but, if you believe that an actual sale was made to the plaintiff, he could authorize his son or any other person to take possession for him and hold possession.”
And it is also averred that the statement by the court that the burden of proof was upon the defendant to show fraud in this case, also tended to lead the jury to believe that it was for the defendant, under the circumstances of the case, to prove that the transfer was a fraudulent one,
!*:■ careful examination of the charge of the court sho’.’s that the burden of proof was put upon the defendant to show that this sale was fraudulent as against creditors, without any reference to what the jury might find as a fact as to an actual and continued change of possession of the goods. This was error. There is no doubt that there was in law a sufficient immediate delivery; and if, upon the delivery of the key to plaintiff, he had gone into the store, and assumed the management of it, the mere fact of his hiring his son to help him in the business or the management of it would not have militated against his “ actual and continued possession ” under the statute; but there was testimony tending to show that the key was returned to the son a few days afterwards, and that, so far as any outward evidence was concerned, the son was running the business after the sale the same as before. The jury should have been instructed that, if they found that the possession of these goods was not actually and continually in the plaintiff from the delivery up to the time of the levy, then it was for him to show that the sale was an honest one. It would not be necessary that the plaintiff himself should remain at the store and personally manage the business. He had the right to select an agent to do this for him. But he could not select a vendor of the goods as such agent, unless something was done to give the public to understand that the possession of the vendor was the possession of the plaintiff, and that there had been a change in the ownership of the goods. This change must be an “open, visible, substantial ” one. Clark v. Lee, 78 Mich. 231.
The court had no right to send an answer to the jury-room to a question propounded in writing to him by the jurors, after they had retired to deliberate upon their verdict, without the consent of counsel in the case.
The judgment is reversed, and a new trial granted, with costs of this Court to defendant.
The other Justices concurred. | [
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Sherwood, J.
The plaintiff in this case resides at East Saginaw. He is an engineer, about 53 years of age, and for many years has been in the employment of the defendant.
On the evening of April 10, 1883, he was in charge of an •engine running a passenger train from Wayne Junction to East Saginaw, on the defendant’s road, and. this had been his route during the previous eight years.
In passing County Line station on that evening his engine collided with a flat car which had, within about half an hour previous, by some means left the side track at the station, and run down onto the main line, and there stood, partly off the track, when the plaintiff’s engine struck it. By the collision the locomotive was thrown off the track, and the plaintiff was permanently injured.
The collision occurred between 9 and 10 o’clock in the evening. After the accident occurred, the plaintiff remained in the employment of the company,, working part of the time, .after he recovered from the shock received in the collision. He regularly called for and received his monthly pay of $100 ■until October 1, 1885. The sum paid from the time he was hurt until he brought this suit amounted to about $3,000.
On the twenty-seventh day of May, 1886, this suit was brought to recover for his injuries, basing his claim upon the ground that the car with which his engine collided was on the main track at the time through the negligence of the defendant •or its servants. The declaration sets out the negligence claimed fully, and states the damages at $50,000. The defendant pleaded the general issue, with notice that, if plaintiff had any such claim, he settled and compromised it with defendant for the sum of $2,966.67 in full satisfaction thereof. The ■cause was tried at the last January term of the Saginaw circuit, and resulted in a verdict and judgment for the plaintiff for the sum of $22,000. The defendant brings error. Sixty-nine exceptions are relied upon to reverse the judgment.
In the court below, before the jury, the plaintiff submitted that the defendant was liable for its claimed negligence in the premises for the following reasons:
“ 1. Because the defendant left this flat car, being without brakes, standing upon this side track.
“ %, Because there were no stop-blocks upon this side track to prevent cars left thereon from running out onto the main track.
“ 3. Because there was no agent in charge of the station to see that the road was kept clear and free from obstructions.
“ 4. It was negligence upon the part of the defendant to allow the car to get upon the main track.”
The defendant’s contention upon the trial was that the company was guilty of no negligence in the premises; that its road, main line, and siding were properly constructed and in good condition, and had long been used; that its side track was a safe and proper place for receiving and keeping cars when not disturbed by trespassers; that the engine and cars used by the defendant, and the flat car with which the collision occurred, were all sound and in good repair; that the duty which the defendant’owed to the plaintiff was only that of master toward servant in his capacity of engineer, and which had always been well discharged by the company j and that the plaintiff approached the station under too high a rate of speed.
In addition to the general verdict, the jury made special' findings to the following questions:
“ Q. Do you find from the evidence in this ope that the flat car with which plaintiff collided passed from the side track onto the main track by means of motion imparted to it by the special freight train which backed onto the side track the night of the accident ?
“A. Yes.
“ Q. Do you find from the evidence in this case that the flat c. r mentioned in the preceding question passed from, the side track to the main line track by reason of motion imparted to it by'the wind ?
“A. Yes.
“ Q. Do you find from the evidence in this case that said flat car was intentionally put upon the main track by some person or persons unknown, for the purpose of causing a collision?
“ A. No. •
“ Q. If you say no to the foregoing three questions, state what you find from the evidence in this case it was that set the flat car in motion, and caused it to run onto the main track? [No answer.]
“ Q. Do you find from the evidence in this case that the plaintiff was duly observing defendant’s rule requiring him to observe care in approaching stations [being rule 84 read in evidence] at the time he collided with the fiat car?
“A. Yes.”
The record contains all the evidence in the case, and counsel for the defendant rely upon all the exceptions taken. In the view I take of the ease as presented by the learned counsel upon both sides, it will be unnecessary to consider all of them. It is unnecessary now to decide whether or not the case is a proper one for the jury upon its facts, if that question alone were to arise, as some were improperly brought into the ease, and I think we may very properly omit the discussion of the exceptions which relate to the subject of damages.
The principles of law involved in the consideration of the questions raised are mainly those relating to the duty of the company towards the plaintiff in the capacity in which he was engaged. These have been so frequently under consideration by this Court that a simple statement of them is all that will be attempted on this occasion.
They required the company to use due care to provide materials, machinery, and other means by which the plaintiff was to perform the work for which he was employed, safe for his use, and to keep them in repair and in order, so as not unnecessarily to expose him to danger; and when the company had done this, the plaintiff assumed the risks and dangers incident to the company’s business. Davis v. Railroad Co., 20 Mich. 105 ; Railway Co. v. Bayfield, 37 Id. 205; Railroad Co. v. Dolan, 32 Id. 510; Swoboda v. Ward, 40 Id. 420; Hatthaway v. Railroad Co., 51 Id. 253; Huizega v. Lumber Co., Id. 272; Mining Co. v. Kitts, 42 Id. 34; Railroad Co. v. Smithson, 45 Id. 212; Railroad Co. v. Austin, 40 Id. 247; Railroad Co. v. Gilbert, 46 Id. 176; Smith v. Rotter, Id. 258; Railroad Co. v. Gildersleeve, 33 Id. 133; Railroad Co. v. Taft, 28 Id. 289; James v. Mining Co., 55 Id. 335; Hoar v. Merritt, 62 Id. 386.
Included in the risks assumed by the plaintiff in this case were those originating from the negligent acts and omissions of his fellow-servants in the employment of the company. Railroad Co. v. Taft, 28 Mich. 289; Smith v. Potter, 46 Id. 258; Railroad Co. v. Leahey, 10 Id. 199; Greenwald v. Railroad Co., 49 Id. 197; Railroad Co. v. Gildersleeve, 33 Id. 133; Davis v. Railroad Co., 20 Id. 105; Mining Co. v. Kitts, 42 Id. 34.
While.it was the duty of the company to use reasonable care in the proper construction of its road and side track, still, if the side track was not so constructed, and injury in consequence occurred to the plaintiff, when he had the same or equal means of knowledge with the defendant of such defect, and did not protest against the negligence now complained of, he ought not to recover. Railroad Co. v. Gildersleeve, 33 Mich. 133; Davis v. Railroad Co., 20 Id. 105; Railroad Co. v. Dolan, 32 Id. 510; 2 Thomp. Neg. 1008, and cases cited; Railroad Co. v. Barber, 5 Ohio St. 541.
County Line station was at a highway crossing on the county line, and contained but a few buildings. It was a flag station only, and the train upon which he was injured did not regularly stop at this station. The side track -at this place was about 2,100 feet in length. The tracks run mainly north and south. There are no depot buildings, or other accommodations for passengers, except a platform, which stands on the east side of the main track, and the highway crossed the same a few feet north of the siding. The side track com menced a few feet south of the highway on the west side of the main line, and extended south the distance before stated. This siding was used principally for the purpose of holding trains while others passed, and cars to be loaded with wood. *
The company had a side track at County Line station as early as 1872. The track and grading, however, were changed in 1882, and the testimony of General Eoadmaster George M. Brown is to the effect that the rebuilding of the track on the siding was done under his supervision, and that the track was laid a foot and a half below the main track, and that the side track in April, 1888, and prior thereto, was in such condition as to make the use of stop-blocks unnecessary, but that since that time, and prior to April, 1886, the side track has been raised, and the grade made nearly parallel with the main track, and in April, 1886, it was from two to eight inches higher than it was in April, 1883.
It is not claimed that the cars or engines furnished to the plaintiff for use were broken or defective or dangerous, nor that the track of the company was broken or out of repair; but it is claimed that the side track was dangerous for the storage of cars without brakes upon them, or stop-blocks, to hold them in place, and keep them from running out on the main track. It is further undisputed that the car which left the side track was furnished with no brakes, and the siding with no stop-block, at the time of the accident; but the car had stood upon the siding about four weeks previous to the accident, and on one or two occasions was moved backward and forward by young men and boys.
It was also claimed by the plaintiff that the car could be moved by the wind, which was blowing the evening he was injured, and also might have been moved by some force imparted to it by a freight train which ran in upon the siding about 35 minutes before the collision, and there remained until a train going south had passed, and then drew out. No one, however, saw the freight train touch or come in contact with the flat car while the former was upon the siding.
The record discloses nothing but mere conjecture how, and by what power, and in what manner, the car was run upon the main track and placed in the position it was found when the plaintiff’s engine struck it. The defendant, however, without pretending to any knowledge as to how the car was moved out on the main line, advanced a theory really quite as plausible upon the subject as any Suggested by the plaintiff, which was that some person or persons, through malicious motives, took that occasion and such means to obstruct the track on the defendant’s main line, in such manner as to cause the collision that occurred, and actually gave some testimony which tended in that direction.
Railroadiog has come to be one of the great interests in this country. It is a business in which many things are settled in conducting it, and all are easily understood. They enter into good railroading, and make certain the standard of duty. As an instance, it is now well understood how tracks should be made, and of what material, and upon what grade, to be reasonably safe, and, in case the grade is changed, what appliances should be used to secure safety j and if these things are all observed and done as good railroading requires, the company’s duty in those respects is fully discharged.
In this case, it is not contended but that the defendant procured the s'rvices of competent and skillful servants, engineers, and mechanics in the grading and construction of its tracks at that station, and its testimony is to the effect that the tracks were properl? made and constructed. It is true, the contrary is claimed by the plaintiff, but the record contains no proof to support the claim.
It is also claimed by the plaintiff that it was negligence not to furnish the side track with stop-blocks; that the company omitted its duty in that regard; and that the plaintiff was ignorant of such omission, and therefore knew not of the danger, and that it was not his duty to know. This may be so. There is nothing contained in the record more than presumption to the contrary, and it must prevail until overthrown. The plaintiff’s duty in the premises depended upon circumstances. Railroad Co. v. Swell, 45 Ill. 197; Porter v. Railroad Co., 60 Mo. 160; O’Donnell v. Railroad Co., 59 Penn. St. 239; Harrison v. Railroad Co., 31 N. J. Law, 298; Goheen v. Railway Co., 3 Cent. Law J. 382; Mehan v. Railroad Co., 73 N. Y. 585.
The plaintiff in this case had been railroading about 30 years at the time he was hurt. During that period he had served as fireman, brakeman, baggageman, engineer on a freight train, and in the same capacity on a passenger train. His service for defendant commenced in 1871. He was then an engineer of a freight train, and in a year thereafter was transferred to an engine on a passenger train, and ran from Lake to Saginaw for several years, and was then assigned to duty on the line between Wayne Junction and East Saginaw, and made this run every day for the period of about eight years immediately previous to the time he was hurt, and was then making his trip north from Wayne Junction. He was familiar with the station and grounds and the siding; had passed it twice a day during the last eight of the twelve years he had been in the defendant’s employment. It was a station át which it was his duty to stop when signaled for that purpose, and he was accustomed to stop his train there more or less every week. It would seem that he must have been some-what acquainted with the situation of the grounds and the ordinary dangers, if any, surrounding them.
The platform car which caused the accident had stood upon the track for a month, and during the entire existence of the siding no car was shown ever to have left it before without being moved by the defendant’s servants. Those connected with the freight train which backed in' upon the siding just before the accident say it did not touch the car, and this testimony is substantially undisputed. The wind which it is claimed moved the car out is shown to have produced a pressure against the end of the car not exceeding 20 pounds, which would hardly be expected to move a car weighing seven tons on a grade such as this siding was shown to have been. This side track had been in constant use for at least. 16 years, holds all kinds of cars, and no case of a car of any kind going out by force of the wind has ever been known at that station.
It also appears, by the testimony of competent and skillful engineers and mechanics and railroad men, that upon this siding there was no occasion for using stop-blocks; that their use was accompanied with inconvenience and danger; that good railroad management dispensed with them when not actually necessary, and that no necessity existed for their use upon this siding. There was no pretense but that all of the emplojés of the defendant were competent, skilled, and experienced men.
These are some of the facts which the testimony in the case tended to establish. .
When the testimony was closed, counsel for the defendant, submitted 21 requests to charge; 19 of which, it is alleged, the court refused to give, and to each of these refusals exceptions were taken.
The first request asked that the court direct the verdict for defendant. This was properly overruled, under the view the circuit judge took of the law, and there is no occasion to say more of this ruling.
The second is in substance the same as the first, except the pleadings are not included in the proposition, and needs no-further consideration.
The third relates to the testimony on the subject of accord and satisfaction, and was ruled correctly. I do not think the testimony tends to show that such a disposition of the plaintiff’s claim was ever agreed upon or understood by the parties in what they did and said.
The fourth and fifth requests relate to the same subject, and I find no errors in what the court said about those.
The defendant’s seventh request was given in substance by the court.
The defendant’s ninth request, as modified by the court and given, is-as follows:
“ It was not the legal duty of the defendant towards this plaintiff to provide its side track at the County Line station with stop-blocks, and its omission to do so was not actionable negligence.”
The modification is as follows:
“ Now, it is true, gentleman of the jury, that'the law does not "require a railway corporation to adopt any particular plan or devise. They were obliged, if you find that this track was in such condition that the flat car was liable to get out upon the main track, in the use of the track, to exercise ordinary care — such care as a prudent man in the management of his business would exercise — to prevent it. It is left to them to say what they should do, but the law requires them to do something in that regard. It may not require them to use a stop-block, if they could accomplish the same object by some other means, — by the employment of a watchman, or by blocking the car, or in some other way that would be sufficient, — but they are obliged to use some means to prevent it.”
The defendant’s counsel claim that they were entitled to have the request given without the modification. In this they were correct. There is no testimony in the case tending to show that the track was not in proper condition, or in such condition that, in the use made of it by the defendant, exercising ordinary care, a fiat car standing upon the siding' was in danger of coming out upon the main line. There is no testimony tending to show that ordinary care was not observed by the defendant in placing the car where it did upon its siding, and which, it had been accustomed to do, with an experience of safety, for more than 16 years. And the claim that the car was liable to get out on the main line by reason of any peculiar construction or condition of the track was improperly left to the jury, for them to infer negligence on the part of the defendant, under the facts as they appear in this record.
Negligence, when relied upon, must be proved. It may be inferred from facts proved, but never from mere conjecture.
The defendant’s tenth request was refused, It should have been given. It is as follows:
“ Even though the jury may believe that, if the side track at the County Line station had been provided with stop-blocks, the ñat car would not have run out onto the m .in track so as to obstruct it, this would not entitle the plaintiff to recover.”
It is not a question here whether the defendant made the best track for its siding, or used the best means and appliances in conducting its business. Railroad Co. v. Gildersleeve, 33 Mich. 133; Railroad Co. v. Bishop, 50 Ga. 465.
The test of liability is not whether the company in this case omitted to do something it could have done, and which would have prevented the injury, but whether it did anything, or omitted to do anything, which under the circumstances, in the exercise of ordinary care and prudence, it ought to have done, and from which the injury to the plaintiff proceeded. Leonard v. Collins, 70 N. Y. 90; Railroad Co. v. Love, 10 Ind. 554; Thomp. Neg. 982, 983, and cases cited.
I think the court erred in excluding the tenth request from his charge. It was quite proper to be given in the case sought to be made under the testimony.
The eleventh request made was as follows:
“The defendant is under no legal obligation to maintain station agents at flag stations for the protection of its employ és.”
The court gave this request, and then said:
“This is true as an abstract proposition. But if they do not have a station agent at a flag station to look after the switches and lights, and the running of cars upon the side track, provided the side track is dangerous in its character, they must adopt some other means.”
The request was right, but the statement of the circuit judge in connection with it is erroneous. Substantially, the jury was informed that the request had nothing to do with the case; that because of the correctness of the defendant’s legal proposition contained in the request the company should have done something; and it again submitted to them the safety of the defendant’s track to pass upon. This, as we have before said, should not have been done. All that the law required was that" the defendant should construct and—
“ Equip its side tracks and cars, and station its agents, in the manner usual with well-managed railroads, and as good railroading required.”
Railroad Co. v. Gildersleeve, 33 Mich. 133; McGinnis v. Bridge Co., 49 Id. 466; Richards v. Rough, 53 Id. 212; Sjogren v. Mall, Id. 274 ; Batterson v. Railway Co., Id. 125; Railroad Co. v. Lonergan, 118 Ill. 41 (7 N. E. Rep. 55).
The defendant in this case, when it took the plaintiff into its employment, did not warrant the safety of its track, nor the sufficiency of its machinery and appliances, nor the competency of its other servants. It did not insure the plaintiff -against the insufficiency of the one, or the incompetency of the other, and it owes no duty to the plaintiff beyond that of reasonable or ordinary care. See authorities before cited.
The defendant’s twelfth request relates to the fact of whether or not the defendant had a station agent at County Line station when the accident occurred, and was properly-omitted.
The giving of the defendant’s thirteenth request with the comment thereon was error, for the reasons given in considering the eleventh request. The request is as follows :
“ The defendant did not owe this plaintiff the legal duty to provide its Sat cars which it left standing upon that side track with brakes; and, even if you should find from the evidence that the fiat car had no brakes at the time of the injury, this does not establish the negligence alleged in that regard against the defendant, nor entitle the plaintiff to recover.”
It states a clear proposition of law based upon the facts in the case, and should have been given without qualification.
The defendant’s fourteenth request relates to its right to-leave broken cars upon its side track in course of its regular business, and its liability in case of accident to a servant from that cause who had notice. ‘
There was no error in the refusal to give it.
There is, however, in the remarks of the court in relation to it, damaging error. In these the court says:
“ Is there any testimony in this case that shows that Mr.. Hewitt knew of the grade of this track, or that he knew that cars upon it might pass out upon the main track by the wind, or by meddlesomeness of boys, or by trains backing, in?”
This contains a suggestion that this car might be or was-taken out by the wind, or either assumes the fact it might have been done, which was not conceded in the case. A suggestion or conjecture of this kind is often most mischieviousin the trial of causes of this character before a jury, and ought not to be made. Jurors are very apt in seizing upon such suggestions or conjectures, and acting under the feeling of sympathy, not unfrequently generated upon the trial, for-the plaintiff in this class of cases, and making them controlling elements in their verdict.
The following is the defendant’s fifteenth request, which was refused by the court, together with his reasons for such refusal:
“If the jury believe that motion was imparted to the flat car by the freight train, which is shown to have backed onto the side track that night, being hauled out, and that such motion was the cause of the fiat car moving out onto the main track, such facts might establish negligence on the part of the men in charge of the freight train, but for such negligence the plaintiff cannot recover against this defendant.”
The reasons for such refusal were as follows:
“ That request I do not think the evidence warrants the court in charging the jury as correct in this case. lihe only party that was on the freight train that has testified in this case was a brakeman. You will remember his testimony. If I remember it right, he claims that he saw the flat ear after his train had backed in on the switch at the end of the train, a half a length of a car from it, and not at any other point. Now, if it were true that that train caught on this car in going out, and that the parties knew it, and failed to block it and protect in any way, that would be negligence on their part, — -negligence on the part of those who were operating the train, — and would be the negligence of a fellowemployé of the plaintiff, and the company would not be responsible for that. If it followed out on account of the character and construction of the side track, and was unknown to them, and they did not know in the darkness that it was following them, why, of course, they could not be held responsible for negligence in not knowing it.”
I think the request states a very plain proposition of the law. It was entirely proper that it should have been given. It was part of the plaintiff’s claim, or rather his theory, that the freight ear got out in that way, and the jury found, in answer to one of the special requests, that the car came out by reason of motion imparted to it by the freight train which backed in on the side track the night of the accident. Really, the court had assumed, in what he said relating to the fourteenth request, that the. car might have come out from such cause, and asked the question, did the plaintiff know that fact, and further submitted the question of the car coming out by reason of the freight train backing in, as follows:
“Now, the first question of fact for you to consider is the construction of this side track. How was it constructed, and when was it constructed? Was it constructed in such a manner, and with such a grade, that a car standing upon that track was liable to go upon the main track by force of the wind that might occur there, or by the carelessness of boys, or in the operation of a train baching into the switch?”
The defendant’s request should have been given without qualification.
The court declined to give the defendant’s sixteenth request, which is as follows:
“A railroad company is not bound to change its manner of using its side tracks, nor to adopt the most approved ways or appliances in business. And if one of its servants, knowing, or having ample means of knowing from long-continued employment, the way and manner in which the side tracks are used, continues in the employment without complaint, and if from such way and manner is subjected to risks of accident, he is presumed to assume such risks, and, if injured thereby, cannot recover.”
This request should have been given. It states the rule correctly. Ladd v. Railroad Co., 119 Mass. 412; Gibson v. Railway Co., 63 N. Y. 449; Lovejoy v. Railroad Co., 125 Mass. 79; De Forest v. Jewett, 88 N. Y. 264; Smith v. Railway Co., 33 Amer. Rep. 484; Sullivan v. Manufacturing Co., 113 Mass. 396; Fleming v. Railroad Co., 27 Minn. 111 (6 N. W. Rep. 448).
The seventeenth request is as follows:
“It appears from the uncontradicted testimony in this case, introduced by the plaintiff, that for a long time prior to April 10, 1883, it was the custom of defendant to use many of its side tracks, including this one at County Line station, without stop-blocks, and to leave cars standing thereon when not in use. If such custom was dangerous, and liable to result in such cars coming out upon the main track, and to cause collisions, such danger and liability were as well known to plaintiff as to any of the officers of defendant; and the plaintiff having continued in the employment of the defendant without complaint, is presumed to have voluntarily assumed the risks of accident from such cause.”
In place of the last two requests, the court said to the jury:
“I might say here, gentlemen of the jury, that the plaintiff must be held as knowing all that has been testified to in this case; that he knew with regard to the operations of the defendant with regard to this track, and the management of the station, and also what he would learn or observe as an experienced engineer in running over the road, and such observation as he could have made of this side track in operating an engine on the main track, or in going in upon the side track himself, if he did go in.”
The charge given leaves out what the plaintiff was presumed to know, and what it was his duty to know, and was erroneous for that reason. The charge requested in both the last numbered requests ought to have been given. They were both fully supported by the decisions of this Court. Railroad Co. v. Leahey, 10 Mich. 193; Davis v. Railroad Co., 20 Id. 105; Hathaway v. Railroad Co., 51 Id. 253; Railroad Co. v. Austin, 40 Id. 247; Piquegno v. Railway Co., 52 Id. 40; Richards v. Rough, 53 Id. 212; McGinnis v. Bridge Co., 49 Id. 466; Lyon v. Railroad Co., 31 Id. 429; and other Michigan cases hereinbefore cited.
The court should have given the defendant’s eighteenth request. It was refused. It stated only an elementary rule upon the subject to which it relates, and was warranted by testimony in the case.
I think no error was committed in refusing the twentieth request; and the subject of the twenty-first, as I have hereinbefore said, it is unnecessary to consider.
This disposes of exceptions to the refusals to charge.
Inasmuch as a new trial must be had in the case, it is unnecessary to determine whether or not the court’s charge upon his own motion was correct in those parts excepted to in the defendant’s forty-sixth, forty-seventh, forty-eighth, and forty-ninth assignments of error, for, if erroneous, the errors will not be likely to recur on a new trial.
I find no error under the forty-ninth or fiftieth assignments of error.
The charges referred to in the fifty-first and in the fifty- second assignments have been sufficiently considered. I may say, however, it was the duty of the engineer to know'the duties of a station agent along the line of the road he was running upon, so far as they related to the proper discharge of the engineer’s duty, and any instruction to the contrary would be erroneous.
The sixty-second assignment of error contains one subject requiring further notice. The circuit judge charged, in speaking of the carelessness of the fellow-servants who backed a freight train in upon the side track just before the collision occurred, that if the flat car—
“ Followed out on account of the character and construction of the side track, and was unknown to them, and they did not know in the darkness that it was following them, why, of course, they could not be held responsible for negligence in not knowing it.”
If by this it was Intended to convey, as I suppose it was, the idea that the servants on the freight train were not negligent in not making the car secure if they did not know it was following them, then the instruction was error. Negligence in a servant may consist, and often does, in failing to know as well as in failing to do. And such is always the case where it is the duty of the servant to inform himself and to know, and, under the facts stated, such would have bren the duty of the servants upon the freight train.
I see no occasion to say anything further in relation to the ■charge as given upon the court’s own motion, or as to the requests to charge.
I do not think it was proper to allow the jury to take to their jury-room such of the defendant’s requests as were marked by the court “Given.” The jury must receive the law and the testimony in open court; and I know of no practice which will allow these, or any part thereof, or any papers ■used in the case, to be taken to the j ury-room, against the consent of the parties, or either of them, except it may be items of an account.
I do not consider the assignment that the verdict is excessive. , There is no occasion to pass upon that question on this record.
Twenty-six exceptions are relied upon to the rulings of the court in taking the testimony.
The sixth assignment relates to the introduction by plaintiff of rule 25 of defendants’s time-card in force when the plaintiff received his injury, and which relates exclusively to-the duty of station agents. The objection was well taken, and the testimony was erroneously admitted. The proof was, so far as the testimony tended to show anything upon the subject, that there was no such agent at County Line station.
The following question was propounded to the plaintiff, when he was being examined as a witness for himself by his counsel:
“ Recalling your attention to the side track there, and supposing it to have the descent which is represented by the plat put in evidence, in case an easy running flat car was given motion towards the south end, at a point where it was on a descending grade, how far, in your opinion, would that car run, if left to run without any obstruction, towards the north?”
The objection was incompetency and immateriality, and it. should have been sustained. The question is too indefinite to be material, or to admit of any satisfactory answer.
- There is but one other exception needing attention. I find no error in the remaining assignments relating to taking the testimony.
When the plaintiff was upon the stand, his counsel asked him the following questions:
“ 1. Have you a family?
“ 2. Do you reside with your family at home?”
The objection to these questions was immateriality. Thn witness answered, “ Yes, sir,” to each question. It is claimed by plaintiff’s counsel that these questions were not asked for the purpose of exciting, nor did they tend to excite, sympathy, but were asked for the purpose of showing what manner of man the plaintiff was, in order to give him credit and character before the jury as a witness, and show that he was “a settled, stable citizen;” that he was a man of character, and known in the community.
The testimony was immaterial, but not sufficient to produce any prejudicial error, and the judgment could not be reversed therefor.
The other assignments of error are not passed upon, but for those discussed the judgment must be reversed, and a new trial granted.
Campbell, O. J., and Ohamplin, J., concurred.
Morse, J.
In this case, while I agree in the reversal of the judgment for errors pointed out in the opinion of Mr. Justice Sherwood, which errors it is not necessary for me here to particularize, I cannot assent to all the propositions laid down by him in such opinion. I shall state briefly some of the points in which I cannot concur.
In relation to the dangerous character of the side track, in my opinion, it was competent for the jury to determine whether or not, under all the circumstances, stop-blocks were necessary to guard against just such accidents as this, and, if such blocks were necessary, it was the duty of the defendant to use them, or some other equivalent means, to prevent the running of the cars, by the wind or their own motion when once started, out upon the main track.
Neither the circuit court nor any other court, under the evidence, was authorized to find, as. a matter of law, that the plaintiff was bound to know of the defects in the construction of this side track.
The jury found, in substance, in answer to special questions, that the accident was occasioned by two joint causes, to wit: The motion imparted to the ear by the special freight train which backed upon the side track the night of the accident, and the force of the wind then prevailing. In my opinion there was sufficient evidence to warrant a jury coming to this conclusion. Whether or not the fellow-employés of the plaintiff who were running the special freight train were negligent in not knowing that they had imparted such motion to this car was a question of fact for the jury. We cannot say, as a matter of law, that they were bound to know it, and consequently guilty of negligence.
The ninth request of the defendant was properly modified •by the trial court.
The tenth was correctly refused.
The eleventh was modified as it should have been. It certainly cannot be the law that, because the company is not obliged to maintain station agents at flag stations, it can leave side tracks connected by switches with the main track, and of a defective construction, subject to all manner of interference and accidents, without any one to look after or care for such switches, and with no precaution whatever against accidents which are liable to take place and destroy human life.
No harm to the defendant could have resulted from the allowance in evidence of the fact that plaintiff had a family, and resided with them. Though immaterial and irrelevant to the issue, the fact would have been known by the jury, without doubt, had the question not been allowed. I know of no rule that would have prevented the plaintiff attending court during the trial surrounded by his family had he chosen to do so; and I know of no means that could have been taken in such case to have prevented the jury from ascertaining that he had his family with him in court. Such questions as these complained of are ordinarily asked, and are not ordinarily supposed to have such a controlling influence over a jury as to vitiate their verdict.
“ 18. If the plaintiff knew, or had such means of knowledge that it can reasonably be said that he ought to have known, of the hazards of the work upon which he was engaged, as the business was conducted, and yet continued in the employment without complaint, and was injured while so engaged, be cannot maintain an action against the defendant therefor, although there was a safer way of conducting the business, which, if adopted, might have prevented the injury.”
“ 20. If the jury shall be in doubt whether the car was caused to be upon the mam track by the malicious act of a person or persons, or how otherwise, the plaintiff cannot recover.”
“ 21. The plaintiff, being in charge of the train, b“ing of large experience on this and other railroads, being familiar wiih the situation at County Line station, having been running by it almost daily for several years, and being instructed by the rules of the company to use care and caution, and in cases of doubt to take the safe side, was alone responsible for the rate of speed of his train at the time of the colli-don ; and if the jury find that had he approached the station at a less rate of speed, and been as watchful as was his duty, the injury could have been avoided, he cannot recover.”
"4S). '1 he circuit judge erred in charging the jury as to the observance of the rules by the plaintiff, and his reference to rule 84, and his statement of what the evidence showed as to switch-lights, and that the testimony showed the switch-lights were m place ’as the plaintiff with his train was approaching, and indicated no danger, as stated in the bill of exceptions, as follows: ‘These rules that were read to you the plaintiff, in the management of his train, was bound to observe. In reading rule number 84, the evidence in this case is that, as he reached the station, it is undisputed the lights upon the main track (the switch-lightsj were in place and indicated no danger.’”
“ 50. The circuit judge erred in charging the jury as to the duty of the defendant to provide a safe road for the plaintiff, and to provide against danger in the operation of its side tracks, and in the instruction that it was he duty of the defendant to provide its side track in such manner as an ordinarily prudent person would provide it for the safety of his employes, as stated in the bill of exceptions, as follows: ‘ In this case it was the duty of the defendant to provide its road in a reasonably safe con dition for the plaintiff’s use in working for the defendant as an engineer, in running passenger trains over the road by day and night, at the rate of speed which the plaintiff by his employment was required to run. It was also the duty of the defendant to provide against such dangers to the safety of the use of its mam road,.in the operation of its side tracks connected therewith, as a reasonable man, acting with ordinary prudence in that business, would provide against.’ ” | [
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] |
Sherwood, J.
This action is upon a policy of insurance dated August 21, 1882.
The defenses are—
1. Misrepresentations relative to the title to and incumbrances upon the plaintiff’s property, made in his application.
2. An accord and satisfaction.
In the application for insurance, the plaintiff represented that he owned the property in fee simple, which consisted of 160 acres; that it was incumbered to the amount of $500 only, which would be due in 1883; and that the cash value of the land was 14,500.
The case was in this Court once before. See 62 Mich, 638. The plaintiff had, on the first trial, been allowed to recover, and the judgment was reversed in this Court.
In that case we held:
That if the representation of quantity was relied upon as a warranty, and its falsity as a defense, the defendant should have set it up in its notice ; that, under the rules established by this Court, the defendant must confine itself to the fraud or falsehood alleged in its notice; and that, under the defendant’s notice, it was immaterial whether the plaintiff owned any other land than the 40 acres upon which the buildings insured stood.
Defendant, wishing to avail itself of its whole defense in the premises, at the first term of the circuit court after the cause was sent back for a new trial, by its counsel, upon proper notice and showing, made a motion for leave to amend its notice in such a manner as to make the plaintiff’s title to the 160 acres of land described in the application material. This motion was denied by the court, and the defendant was not permitted to avail itself of one of its principal defenses, which had existed from the moment the policy became operative, and must have been known to the plaintiff. It was not a new defense, nor a technical one, but went to the merits and very foundation of his claim. The amendment was offered at the earliest opportunity after it was found to be necessary by defendant’s counsel, and its denial was equivalent to depriving the defendant of its right to make its defense altogether.
Ordinarily, the granting of a motion- to amend pleadings is a matter within the discretion of the court, and cannot be reviewed here; but when, in a case like this, a party is deprived of a .meritorious defense to the plaintiff’s entire claim in suit by the ruling, the action of the court becomes so prejudicial to the rights of the party affected thereby that he may allege error, and have the case reviewed in this Court for its correction.
Where, in the trial of a cause at the circuit, involving only a common-law issue, the application of a rule of practice becomes so oppressive as to deprive a party of his just rights irrevocably, as in this case, error will always lie to this Court to redress such grievance.
The defendant should have been allowed to make the proposed amendment to its pleadings.
On the trial, the plaintiff obtained a verdict for the sum of $1,187.16.
The testimony of both parties tended to show a settlement of the plaintiff’s claim, and it appears that he signed a receipt, on the back of the policy, for the amount paid by the company, and accepted a draft for the amount, when he surrendered the policy and signed the contract for the compromise, which was attached to the same.
It further appears that the plaintiff indorsed the draft and received the money on the same. Plaintiff, however, alleges that the settlement was brought about by deceit and fraudulent practices of the defendant’s agent, who did the business. This allegation the defendant denies.
The plaintiff did not tender back or pay to the defendant the money he received upon the compromise, before bringing this suit. The sum received was $100.
Under these circumstances, the following request of defendant’s counsel should have been given as requested:
“ If the jury find from the evidence that there was a settlement and compromise of the claim of the plaintiff against the defendant in this case, and that plaintiff received, either in cash or by draft the amount to be paid on such settlement and compromise, but has not repaid or tendered back the same to defendant before the commencement of this suit, the plaintiff cannot recover in this case.”
This request is within several decisions of this Court. Wilbur v. Flood, 16 Mich. 40; Jewitt v. Petit, 4 Id. 508; De Armand v. Phillips, Walk. Ch. 186; Galloway v. Holmes, 1 Doug. 330; Dunks v. Fuller, 32 Mich. 242; Martin v. Ash, 20 Id. 166; Lumber Co. v. Bates, 31 Id. 158; Railroad Co. v. Dunham, 30 Id. 128; Crippen v. Hope, 38 Id. 344.
The plaintiff’s right to recover is based upon the theory that the settlement was obtained through the fraud of defendant’s agent. The plaintiff cannot claim the benefit he has received through the fraudulent contract, and at the same time repudiate its binding force. Railroad Co. v. Dunham, 30 Mich. 128; Crippen v. Hope, 38 Id. 344; Gray v. St. John, 35 Ill. 222; Mann v. Stowell, 3 Chand. 243.
This is an action of assumpsit upon the contract, and not a suit for fraud.
Other points are made, but most of them will hardly recur upon another trial, and therefore we do not think it profitable to consider the case further.
The judgment must be reversed, and a new trial granted.
Champlin and Morse, JJ., concurred.
Campbell, O. J., did not sit. | [
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Morse, J.
The respondent was tried and found guilty in the circuit court for the county of Livingston of—
“Knowingly and willfully obstructing, resisting, and opposing Seth B. Rubert, marshal of the village of Howell, while in the lawful execution of his office, in attempting to arrest said Elbert O. Rounds for being then and there drunk and disturbing the peace in the presence of said Seth B. Rubert, marshal as aforesaid, the said Seth B. Rubert being then and there engaged in maintaining, preserving, and keeping the peace.”
Upon the trial it was conceded that the marshal had no warrant or other process against the respondent at the time of the arrest.
TJpon the part of the people the evidence tended to show that on the evening of November 30, 1886, the salvation army were holding services in a building in Howell, known as the “ Salvation Army Barracks.” The marshal came along, and saw Bounds and some others standing outside the barracks. He heard Rounds say, “ When he comes out, I am going to give it to him.” Bubert said to Bounds he must not have any trouble there that night, if he did he should arrest him; told him he better go home. Bounds then grabbed hold of him, saying, “ Seth, come here, I want to talk with you,” and took him off a distance of 15 paces. He told the marshal he was a fool to think he could arrest him, and offered to bet five dollars that he could not do it.
After some parley, Bubert broke away from him and went into the barracks. He had been in there but a short time when Bounds entered, came up to Bubert, grasped him by the coat, and said “ Seth, come here, I want to talk with you,” and jerked him along towards another corner of the barracks. Bounds talked in a loud voice and disturbed the services then going on. The marshal told him several times that he must keep quiet or he should arrest him. As Rounds did not desist, the marshal finally took hold of the lapels of his coat and said, “I arrest you.” Thereupon Bounds drew back, and struck Bubert in the face, and kept on striking him until another officer came to the assistance of the marshal. In going out of the building, Rounds grabbed for a stick of wood, as did also the marshal. The marshal struck Bounds over the head with a stick of wood.
The respondent’s version of the transaction was substantially as follows: He is 22 years of age, and resides in Howell. Had drank two glasses of beer that evening, but was not intoxicated. Towards the close of the meeting he was stand ing outside with some other boys talking quietly. Rubert came rapidly up to him within arms-length, shook his fist in his face, and in a loud tone of voice said Rounds must not have any trouble there, that night; that he had better go home, for if there was any disturbance there he would have to put him in jail. Denies that he told Rubert that he was a fool to think he could arrest him, or that he offered to bet he could not do so. Asked Rubert to step one side, and may have placed his hand upon his shoulder, but did not pull him. He simply wanted Rubert to explain what he meant, but could get no satisfaction.
He admits that he went into the barracks and walked up to Rubert, and put his hand upon his shoulder, and said to-him:
“‘I want to speak to you.’ We stepped out one side, and' I asked what I had done and what he meant. I did not talk loud or so as to disturb anybody. He would not tell me what I had done, or why he talked so to me, but said that he meant, just what he said, and should arrest me if I made any disturbance. His refusal to explain matters, or to let me know what he blamed me for, so as to have things understood, and his repetition of the threat, made me mad, and I said to him he could not get to arresting too quick. At that he grabbed me, and I presume I struck him. They say I did, but I was. so much excited that I don’t know what I did do.”
He also testified that he did not grab for a stick of wood,, but only put his hand upon the wood-box to straighten himself up. Rubert grabbed a stick, and struck • him over the head.
“The blow struck through the scalp to the bone, and somewhat stunned me.”
There was testimony introduced tending to corroborate both theories of the transaction.
We think the circuit judge fairly submitted the case to the jury. He gave the following instructions, as asked by the respondent’s counsel:
“ No such, drunkenness has been proved in this case on the part of the defendant as would justify the officer wi making the arrest for that cause alone. The question for the jury to consider is this, was the respondent actually disturbing the public peace, in the salvation army barracks, at the time the arrest was made, and not whether he was about to do so, as the latter is not charged in the information filed in this cause.
“The officer could arrest without a warrant only for a breach of the peace actually being committed in his presence, and if you believe, from all the evidence in the case, that no such breach of the peace took place until the arrest was made, and then only in resisting such arrest to the extent of striking several blows with the fist, then such resistance was justifiable, and you should acquit the defendant.
“If an officer does not keep within the law, he is not acting as an officer, nor entitled to protection as one. Bounds had a right to resist an illegal arrest. You must remember that you cannot take into consideration anything that happened at the barracks before Bubert got there; and that you must find Bounds not guilty if it is reasonably possible to reconcile the facts with innocence.”
He also further instructed the jury as follows:
“ Again, an officer has no right to arrest without warrant for any breach of the peace not committed in his presence. But for a breach of the peace committed in his presence, he may make an arrest without a warrant, for the purpose of taking the offender before a magistrate for examination or trial. And when an officer sees a breach of the peace being committed in his presence, it is his duty as a peace officer to arrest the offender without a warrant.
“The Supreme Court of this State in the case of Davis v. Burgess, has defined what is understood by a breach of the peace. The Court says:
“ ‘ By peace, as used in the law in this connection, is meant the tranquility enjoyed by the citizens of a municipality or community, where good order reigns among its members. It is the natural right of all persons in political society, and any intentional violation of that right is a “ breach of the peace.” It is the offense of disturbing the public peace, or a violation of public order or public decorum. Actual personal violence is not an essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear, and anticipated danger by the wicked language and conduct of a guilty party, not only destructive of the peace of the citizens, but-of public morals, without the commission of the offense.’”
That section 9302, How. Stat., gave the marshal authority to apprehend and arrest on sight any person disturbing a religious meeting, quoting the section in full; that if the jury found that Rounds followed Rubert into the barracks, knowing that he was an officer, for the purpose and intent of inviting a personal dispute and controversy with him, and did enter into such controversy, and they further found that he did, in a rude and insolent manner, in said barracks, take Rubert by the shoulders, or collar, or lapels of his coat, against Rubert’s will, and pull or push him several feet from the place where he stood, these acts would constitute an assault and battery, and breach of the peace, and the marshal would have the right, without process, to arrest him, and take him before a magistrate.
Upon the arraignment of the respondent, his counsel moved to quash the information filed against him, on the ground “that the same did not set out an offense within the original jurisdiction of the court,” which motion was overruled. It is claimed in behalf of this motion that the information does not allege anything more than an assault and battery; that there was at the time of the arrest no such crime as drunkenness under the general statutes of this State (see People v. Beadle, 60 Mich. 22), and there was no averment that there existed any village ordinance against drunkenness; that to meet the requirements of the statute (How. Stat. § 9257) the information should have charged that Rounds “did obstruct, resist, and oppose Rubert in his lawful acts, attempts, and efforts to maintain, preserve, and keep the peace;” that there is, in effect, no such allegation.
The averment that he “did obstruct, resist, and oppose Rubert in the lawful execution of his office in attempting to arrest respondent for being then and there drunk and disturbing the peace,” is claimed not to be sufficient under the statute. *
We think the words “ being drunk ” may be treated as mere surplusage, and that the information is a substantial compliance with the statute. • It alleges clearly enough the appointment of the marshal, his authority to maintain and preserve the peace, and his being obstructed while acting in such capacity, and that he was thus obstructed, resisted, and opposed while he was attempting to arrest the respondent for disturbing the peace in his presence.
Error is claimed in that the circuit court allowed evidence to be introduced showing that Bounds made some disturbance in the barracks before the officer came there, and not in his sight. It was admitted by the court on the ground that the evidence tended to show a continuous disturbance of the meeting during the whole evening. The jury were plainly told that they could not take this evidence, or any testimony of what happened at the barracks before the officer got there, into consideration in determining the guilt of the respondent.
As the respondent was also permitted to show that he was engaged in helping to keep quiet and good order at the meeting for some time before the marshal arrived, we are of the opinion that the admission of this testimony, with the instruction to the jury not to regard it as bearing against the respondent, did not prejudice the case, or influence the verdict against him.
Evidence was given on both sides that the meeting was disturbed more or less all the evening, and we are not prepared to say it was not admissible as part of the res gestae showing a breach and disturbance of the peace.
It is complained that the circuit judge went outside of his legal duty, to the prejudice of the respondent, in quoting to the jury the statute against disturbing religious meetings, and in the remarks he made, to the effect that the humblest reb'gious worshiper is protected by the law as fully as is the one who worships in the “ costly temple which represents the monument of the faith and hope of the worshiper.”
We know not what was the occasion of this remark, but it is to be presumed that there was shown during the trial more or less prejudice against the “Salvation Army,” as it is a matter of general knowledge that .such prejudice exists in every place, and that these devotees are everywhere, because of their peculiar and not altogether pleasant methods of worship, subject to ridicule, persecution, and contumely. If such was the case here, the remarks were eminently proper, and could do no harm at any rate. It was but a statement that the law knows no distinction between the rich and the poor, and that religious liberty is guaranteed to all alike.
There was no error committed upon the trial, and the proceedings are affirmed.
Sherwood and Champlin, JJ., concurred.
Campbell, O. J., did not sit. | [
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] |
Sherwood, J.
The plaintiff commenced her action before a circuit court commissioner to recover possession of lots Nos. 16, 17, 21, and 22, in block 10, in Warren & Bronson’s First subdivision of the city of Big Bapids, on ■which, was situate an hotel known as the “ Commercial House.”
The defendant obtained judgment, and plaintiff appealed to the circuit, where on the trial a like judgment was obtained, and the plaintiff now seeks a review in this Court.
Two errors are assigned upon the record.
1. That the court refused to admit in evidence a copy of a certain contract for the purchase of the lots.
2. That the court erred in rendering judgment, “ that defendant is not guilty of unlawfully holding the premises described in.the complaint against the rights of the complainant.”
The testimony in the case was all offered by the plaintiff, from which it appears, or rather there was testimony given tending to show, that Hannah T. Gray sold the premises in question to Spencer Preston by contract, who transferred his interest under the contract to John T. Clark and John Woods, the husband of the plaintiff; and that John Woods transferred his interest in the property, and his undivided half interest in the furniture in the hotel, to the defendant, Burke.
Clark and Woods were in possession of the property when Woods sold to Burke, as tenants in common under the original contract for the purchase of the same. Burke was to-give $2,000 for the interest he purchased, and paid all but $338.38,
Woods made his transfer to Burke in 1883, and in 1884 Woods assigned his interest in his contract of assignment to Burke, and in the original contract from Gray to Preston, to Clark, who assigned the same to Mrs. Doyle, and she, on the second day of May, 1885, assigned her interest thus acquired in the property to Mrs. Annie B. Woods, the plaintiff. The defendant agreed, in addition to the 82,000 paid for his interest, that he would keep up the payments on the Gray-Preston contract.
The complaint in this case alleges that the defendant holds possession of the real estate in question—
“ Contrary to the conditions and covenants of an executory contract for the purchase thereof.”
On the trial it was substantially admitted that Burke was not in default in making payments upon the original contract held from Gray, but that the default relied upon was the failure of Burke to pay for the furniture, as he had agreed in the assignment from Woods to him.
The question, however, whether or not the right to recover possession under the contract claimed can be maintained, we are prevented from considering.
That contract includes the original contract for the purchase of the hotel property of Mrs. Gray, and the latter was properly excluded by the court, or rather the evidence offered to prove it. It was attempted to introduce a copy, without first proving the loss of the original or its destruction, or that it was not within the jurisdiction of the court, and the copy was properly excluded.
Enough was shown to establish the fact that Burke went into possession of the property under the original contract by virtue of Woods’ assignment, and that he had never forfeited his right to such possession. From the record it would appear that the defendant was rightfully in possession of the premises as against any claim made by the plaintiff, and the judgment must be affirmed.
Champlin and Morse, JJ., concurred.
Campbell, O. J., did not sit. | [
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] |
Champlin, J.
Defendants were convicted of tbe crime of rape upon an Indian woman of tbe age of 75 years.
There are 21 assignments of error, only one of which will be noticed.
The complaint upon which respondents were arrested and tried was made by the injured woman, Mary Penasa, who soon thereafter died from the effects, as it was claimed, of the injuries received.
Upon the trial, the testimony given by the complaining witness upon the examination was read in evidence, against respondents’ objection. After the testimony was closed, the court gave his instructions to the jury, who, after having retired for deliberation, but soon thereafter, sent the officer in charge to the bar of the court with a request for the written evidence of Mary Penasa; whereupon the court asked the prosecuting attorney if he had any objections to the jury having the said evidence in their jury-room, and he replied that he had not. The same inquiry was made of the counsel for the accused, who objected, and the court said, “Very well, the evidence will not be sent for the present,” and instructed the officer to say to the jury that they could not have the evidence asked for.
Several hours later, and in the evening of said day, after counsel for respondents had left the place and Court, and returned to Eeed City, where they resided, said jury again called for the evidence of said Mary Penasa. as taken on her examination before the magistrate, and thereupon the said court allowed the said evidence to go into the hands of said jury, and also allowed to go to said jury, in connection therewith, the written evidence of Eliza Gah-bah-yah as reduced to writing at the preliminary examination before the justice of the peace, also the original written complaint of Mary Penasa upon-which the warrant for the arrest of the accused was based, and said warrant. Said papers, containing the evidence of Eliza Gah-bah-yah, and the said original complaint of Mary Penasa upon which the warrant was issued, and said warrant, were all attached together with the evidence of Mary Penasa, and were passed into the hands of the jury through inadvertence; the court not being aware that said objectionable matters were attached.
We do not think the court was justified in sending the papers to the jury-room. It is a dangerous practice even in civil cases, and one not often to be indulged in, and in criminal cases never. The testimony in criminal cases is always to be given in open court, and in the presence of the accused. Chadwick v. Chadwick, 52 Mich. 545; In re Foster’s Will, 34 Id. 21.
Our attention is challenged to what appears in the brief of counsel for the respondents to some unjust and unmerited aspersions upon the action of the prosecuting attorney acting in behalf of the people. We find no warrant in the record for the charges made against this official. He appears to have acted in good faith, in the discharge of his official duties. We must attribute these unwarrantable assumptions to the overzealousness of counsel for his clients, whom the record before us places in no enviable light. It was admitted by counsel upon the trial that the respondents were guilty of assault and battery upon that aged woman, but, if the testimony of the witnesses be true, it points to them as the perpetrators of one of the most detestable and outrageous crimes known to the law.
For the error pointed out the judgment will be reversed, and a new trial ordered. The respondents will be remanded to the custQdy of the sheriff of Osceola county.
The other Justices concurred. | [
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] |
Sherwood, J.
Mrs. McPherson, at the time of her death, lived with her husband, James McPherson. She died, leaving an estate of between two and three thousand dollars, and John Galloway, the appellant, was appointed executor of her will.
The funeral expenses and doctor bills of Mrs. McPherson during her last sickness amounted to the sum of $163, and the executor asked her husband to pay them, which he did.
The executor, on rendering his final account, included this sum among his disbursements, it standing in the account as an item for money—
“ Paid James McPherson for money advanced by my direction to the undertaker and doctors for services and funeral expenses.”
On appeal by 'the executor from the disallowance to the circuit court for the county of Wayne, where atrial was had, Judge Speed directed the verdict of the jury in favor of the estate.
It does not appear but that the husband was able to pay his wife’s funeral expenses, and it was his duty to do so. Sears v. Giddey, 41 Mich. 590; Jenkins v. Tucker, 1 H. Bl. 90; Ambrose v. Kerrison, 10 C. B. 776; Macq. Husb. & W. 191; Bradshaw v. Beard, 12 C. B. (N. S.) 344; Bertie v. Chesterfield, 9 Mod. 31; Methodist Church v. Jaques, 1 Johns. Ch. 450; Durell v. Hayward, 9 Gray, 248.
The judgment at the circuit will be affirmed, with costs.
Champlin and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
Champlin, J.
Plaintiff commenced suit in replevin before a justice of the peace.
The property described in .the affidavit and writ was “one sewing-machine and one pool-table.”
The officer who returned the writ returned that he hád replevied and delivered to the plaintiff the sewing-machine (pool-table could not be found) as he was commanded, and that he had summoned the defendant.
Upon the return-day the parties appeared, and the plaintiff declared in writing. The defendant then moved to quash the writ, on the ground that the affidavit, writ, and bond did not specifically describe the property. The justice granted the motion, and ordered a return of the property mentioned in the writ of replevin, and taxed costs against the plaintiff at $4.75.
The plaintiff then sued out a writ of certiorari^ to the circuit court. The cause was brought on for argument in the circuit court, where the court entered an order dismissing the the writ of certiorari as having been improvidently issued.
The description in the writ was sufficiently specific, and the justice erred in quashing it. Farwell v. Fox, 18 Mich. 166; Kelso v. Saxton, 40 Id. 666; Sexton v. McDowd, 38 Id. 148.
How. Stat. § 7031, provides:
“ In all eases of judgments rendered by a justice of the peace, whether issue was joined before the justice or not, either party may remove such judgment by a writ of certiorari into the circuit or district court for the county in which the judgment was rendered.”
To entitle the party to such writ, he must give notice in writing within five days to the justice of his intention of removing the cause by certiorari, and within the same time make an affidavit setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded, and he must, within 30 days after the rendition of the judgment, present the affidavit to a circuit judge or circuit court commissioner of any county of this State, and, if he is satisfied that an error has been committed by the justice or jury in the proceedings, verdict, or judgment, he shall allow the certiorari by indorsing his allowance thereon. The statute requires the party suing out the certiorari to execute a bond. The affidavit and writ is then to be served upon the justice.
All the steps required by the statute to procure and perfect the writ of certiorari were taken by the plaintiff in this case. The error complained of was substantial, and affected the merits of the case, and was extremely prejudicial to plaintiff’s rights. The circuit court erred in dismissing it as improvidently issued.
No doubt a better remedy would have been a special appeal to the circuit. But the statute gave the remedy by certiorari to the plaintiff, and I see no reason why he was not entitled to it.
The mere fact that this mode of proceeding prevents a trial of the replevin suit upon the merits is no reason for denying the right to this remedy. Such result always follows when a cause is removed by writ of certiorari from a justice’s to the circuit court. Dismissing the writ, as improvidently issued, also prevents a trial upon the merits; but it does more, — it perpetuates the error committed by the justice, and turns the plaintiff over to an action of trover. A reversal of the judgment leaves the property in the possession of the plaintiff, but it does not preclude the defendant from bringing trover, or any other proper action; and, if either should be put to a further action, it ought to be the party who has caused a miscarriage of the suit before the justice.
The judgment of the circuit court and of the justice is reversed, with costs.
The other Justices concurred. | [
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Sherwood, J.
The plaintiff’s intestate was a brakeman ■on the defendant’s cars, and, as plaintiff claims, was killed through the negligence of the company in constructing and maintaining an improper and dangerous railroad bridge on the line of its road near Chippewa station, in the county of Osceola.
It is for the killing of young Illick, by reason of such negligence on the part of the defendant, that this suit is brought, and sought to be maintained.
The only wrong counted upon in the plaintiff’s declaration is that the defendant was negligent in maintaining an improperly constructed bridge. The only defect claimed in the construction is that the bridge should have been made wider than it was; that ordinary care and good railroading required this; that the bridge was built 13 feet and 4 inches wide between the trusses, which were 10 feet high, whereas it should have been' at least 14 feet between them.
The case was tried in the Wayne circuit court by jury, and -at the close of the trial the circuit judge instructed the jury that the peril which overtook the plaintiff, and caused his death, “ was one of the accidents incident to his employment,” and directed a verdict for the defendant.
The plaintiff asks a review of the case in this Court.
The main facts in the case were undisputed. The bridge-at Chippewa station was built about nine years ago, and there is no question but that it was well and strongly built, and at the time of the accident was sound and in good repair, and that no accident of the kind had ever occurred there before; that the track of the road was in the center of the bridge; that the car upon which the deceased was injured was a box freight car, and that at the time of the accident he was climbing up the side of the car upon a ladder, for the purpose of setting the brakes, which were worked from the top of the car; • that the train was approaching the bridge at the time the conductor signaled for brakes, and that the plaintiff, who was standing upon a platform car next to the box car at the time, immediately sprang for the brakes, caught the round of the ladder on the side and near the end of the box car, and while swinging himself around the corner to go up the ladder, and in his effort to reach the ladder, he threw his body out so far as to come in contact with the bridge as the car reached it, and was struck with such force as to throw him from the-ladder to the track, where he was run over and killed.
The testimony also shows that, at the time the brakeman started for the ladder, the conductor of the train stood near-him, and as the brakeman grabbed the ladder upon the side of the box car, and was swinging himself around to go up, the-conductor made an effort to stop him, and “ hallooed to him to look out for the bridge.” The brakeman apparently did not hear the conductor, or, if he did, the warning was not heeded.
The ladders on the defendant’s box cars are on the side, and near the end of them. The ends are provided with a handle, which the brakeman, on leaving a flat car to go up. on a box car, lays hold of, and then, by swinging himself around the corner of the car, is able to reach the ladder with his foot. The ladder consists of iron bars extending out from the side from three to four inches, and upon the roof, when. reached, is a handle to assist the brakeman in ascending and descending.
At the time of the accident the brakeman had been in the employ of the company for about four months, and, when he was injured, he had been braking for the defendant over 100 days, passing over the bridge twice a day during that time.
The bridge is about 35 rods east of the station, and in sight from the same.
Benjamin Douglas, a bridge engineer, and an expert in the business, was sworn and examined on the part of the plaintiff, and testified that he had been employed in the Detroit Bridge & Iron Works; that he is now in the employ of the Michigan Central Bailroad Company, in the chief engineer’s office, and is engaged in getting up plans and specifications, and examining plans; that the standard width of railroad bridges which have trusses at the side is, at the present time, on the Michigan Central, fourteen feet in the clear between the trusses; that—
" Fourteen feet is almost universal. You will find narrower bridges. A great many roads have narrower bridges, —a few narrower ones; but they are the older bridges.”
That the Michigan Central has three narrower than fourteen feet, but he does not know of any built narrower in the present state of the art; that his knowledge of the standard width of bridges in Michigan has been acquired within the last four years, and he cannot say what the width was of the Howe truss railroad bridge in Michigan five or seven years ago.
That there are seven bridges crossing the Michigan Central between Detroit and Grand Trunk Junction, five of which have been built five years, and five of which are supported by posts, and two not; that the narrowest one between the posts is 12 feet, and another 12 feet 4 inches.
Mr. Wolhaupter, who was in the engineering department of the Detroit, Grand Haven' & Milwaukee Bailroad, testi fied that he had been in the employment of that company over seven years, and that they make the truss bridges on that road about fourteen and á half feet wide, but that there are bridges on the road narrower than that; that the one at Greenville is but thirteen feet and ten inches at the end.
Mr. Colburn, who is secretary and treasurer of the Detroit Bridge & Iron Works, and has been connected with the company since 1883, testified that the usual width of iron bridges in the clear, to-day, is fourteen feet or more, and that, where there is a truss on each side of the bridge,—
“ Railroad companies fix their own dimensions in their specifications upon bridges that we are called upon to build.”
He further testified:
“I don’t know anything about the wood structures; we never built them. * * * We deal altogether in iron and combination bridges.”
It further appeared that young Illick was 28 years of age when he was killed, and was temperate, intelligent, and prompt in the performance of all his duties; and the conductor who saw him when he struck the bridge testified that, in the position the brakeman placed himself at the time he struck the bridge, he would have hit it if it had been 16 feet wide.
The foregoing contains substantially all the facts in the case, except the testimony relating to damages, and they are undisputed.
I think the circuit judge was correct in the direction he gave to the jury.
The space between the side of the bridge and the ladder upon the car where the brakeman was injured, as shown by the record, was two feet and three inches wide. The danger in going up' the ladder at that place was before him, and was as plain to his observation as to any person connected with the train, or whose duty it was to run upon the road. It was not his duty, on the signal for brakes, to go up the ladder when the service was fraught with such danger. There was no special request from any person in charge of or controlling the train for him to make the perilous ascent; and, when he did so, it was at his own peril.
The duties of his employment did not require him to go upon the box car until he had passed the bridge. It did, however, require him to observe and take knowledge of the danger, if any, in crossing the bridge, if such knowledge could be obtained by his own observation. He had crossed the bridge 200 times before he was injured; and each time he crossed furnished him an opportunity of observing the very danger which overtook him and caused his death.
The bridge was sound, and safe for the passage of trains, without defect, and in good repair. Whether it was 14 or 24 feet wide was a matter of no concern to the brakeman, so long as he was not required to occupy a place of danger in the discharge of his duties while passing over it, and this he was not required to do.
A railroad company cannot be required to condemn and remove a bridge which is without fault in its plan or defect in its structure, while it is in good repair, and safe for the passage of trains, simply because some engineer shall pronounce it not as good or convenient as some other kind. Railroad companies must be allowed to use their own discretion as to the kind of bridges they will use, and when and under what circumstances they will remove or replace them, while they are safe. Any other rule would be both unjust and oppressive.
As between the employers and employed, it is unquestionably the duty of a railroad company to provide a track and equipments which shall be reasonably safe; but this does not oblige the company to make use of the latest improvements, or to change the structures upon its road so as to conform to the most recent or advanced improvements and ideas upon such subjects; neither does good railroading require any such thing. Cooley, Torts, 551, 552; Wonder v. Railroad Co., 32 Md. 411; Coombs v. Cordage Co., 102 Mass. 572; Railroad Co. v. Gildersleeve, 33 Mich. 133; McGinnis v. Bridge Co., 49 Id. 466; Batterson v. Railway Co., Id. 184; Railroad Co. v. Huntley, 38 Id. 537; Smith v. Potter, 46 Id. 258, 264; Hathaway v. Railroad Co., 51 Id. 253, 262; Hewitt v. Railroad Co., 67 Id. 61.
While it is the duty of the company to furnish sufficient and safe material, machinery, and other means by which the work of the employed is to be performed, and keep the same in order and repair, and his contract implies that, in regard to these matters, the employer will make adequate provision against negligence on the part of the company, and that no danger shall ensue to him therefrom, it is well settled that the employed assumes all the risks and perils usually incident to the employment, and that included in such risks and perils are those which it is a part of the duty of the employed to take knowledge of by observation. 2 Thomp. Neg. 983; Cooley, Torts, 551; Railroad Co. v. Austin, 40 Mich. 247; Swoboda v. Ward, Id. 420; Henry v. Railway Co., 49 Id. 498; Patterson v. Railway Co., 53 Id. 128; Brewer v. Railway Co., 56 Id. 620; Hewitt v. Railroad Co., 67 Id. 61; Davis v. Railroad Co., 20 Id. 126; Gardner v. Railroad Co., 58 Id. 584; Gibson v. Railway Co., 63 N. Y. 449; Owen v. Railroad Co., 1 Lans. 108; Ladd v. Railroad Co., 119 Mass. 412; Lovejoy v. Railroad Co., 125 Id. 79.
The conductor of the train, in his testimony, in speaking of young Illiek, says:
“ The rear end of the train which we had that night would have stopped about twenty car-lengths west — between eighteen and twenty car-lengths west — of the bridge. During his connection with that train, Mr. Illiek had occasion to do more or less switching at Chippewa station. Coming east, he was middle brakeman. We carried three brakemen. He had to be switchman at that bridge. Sometimes he would do one part, and sometimes another. Sometimes he would pull the pin, and sometimes would give the signals, and sometimes do the switching; and in doing that work he could not help but see the bridge. He should have known where the bridge was; he had been there times enough. I had never had any particular talk with him about the danger of swinging out when passing through the bridge, — that is, regarding that particular bridge; but I had cautioned him, when he first commenced braking with me, regarding all bridges. I had told him to look out for them, and keep out of the way.”
I do not think the record discloses any fault or negligence on the part of the defendant.
It was not only the duty of the brakeman to know of the dangers at this bridge, but it appears from the conductor’s testimony that he had previously had warning to be careful, and not to come in contact with any of the bridges on the road.
I think the negligence of the deceased was such, in this case, as to preclude a recovery by his administrator, and the judgment must therefore be affirmed.
Champlin, J., concurred with Sherwood, J.
Morse, J.
I agree with Mr. Justice Sherwood that there
was no evidence in this case tending to show any negligence on the part of the defendant. As this disposes of the case, I prefer not to express any opinion as to the negligence of plaintiff’s intestate.
Campbell, C. J., did not sit. | [
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Morse, C. J.
Upon the allowance of the final account of the administrator with the will annexed of John Phillips, deceased, the probate court of Lenawee county found that property in his hands, amounting to $32,-369.57, should be distributed as follows: The sum of $7,894.93 to testator’s widow, Eliza M. Phillips, who had refused the bequest by the will made to her, and had elected to take under the statute; and the remainder, $34,474.64, to the testator’s children and grandchildren, —one-sixth thereof ($4,079.11) to each of five children, and one-twelfth thereof ($3,039.55) to each of two children of testator’s deceased daughter; and a final order of distribution, so assigning the estate, was thereupon entered. The widow, claiming that under the statute she was entitled to a larger sum than the probate court assigned to her, appealed to the circuit court, and, that court having affirmed the decree of the probate court, she brings error.
The decision of this case is dependent upon the construction of the first subdivision of section 1 of an act entitled “An act to restrict the. disposition of personal property by last will,” approved March 10, 1881 (How. Stat. § 5834), which reads:
“ Section 1. That all dispositions of personal property by last will and testament shall be subject to the following limitations and restrictions:
“First. If the testator shall leave surviving him a wife, the testamentary disposition shall be subject to the election of such wife to take any interest that may be given to her by the testator in his last will and testament, or, in lieu thereof, to take the sum or share that would have passed to her under the statute of distributions had the testator died intestate, until the sum shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her under the statute of distributions had the testator died intestate; and, in case no provision be made for her in said will, she shall be entitled to the election aforesaid.”
Under the statute of distributions (How. Stat. § 5847), of the net estate of an intestate (using the words “ net estate” to specify the whole personal estate remaining after disposing of chattels specifically appropriated by statute, and the payment of debts, costs, allowances, expenses of administration, etc., for distribution among heirs or distributees) there passes to his widow—
1. One-third, if the intestate leaves children or their issue.
2. One-half, if he leaves but one child, or its issue.
3. All the first $1,000 and one-half the excess, if he leaves no issue, but does leave father, mother, brother, or sister, or issue of brother or sister.
4. The whole, if he leaves no child, father, mother, brother, or sister, or issue thereof.
The probate judge gave the widow first one-third of $15,000, which sum made the $5,000 provided by the statute. Deducting the $15,000 from $32,369.57, left a residue of $17,369.57. Of this sum he gave the widow one-sixth, to wit, $2,894.93. This, added to the $5,000, made her total portion $7,894.93. This was a correct interpretation of the statute.
It was claimed by the widow that, the “residue of the estate” mentioned in this statute was the whole sum to be distributed, the residue remaining after the debts, expenses of administration, a.nd special legacies were paid, — in this case the sum of $32,369.57: that the $5,000 should be deducted from this sum, leaving $27,369.57, of which she should have one-sixth, to wit, $4,561.59; making a total of $9,561.59. There is no warrant in the statute for this contention. It is too plain for argument.
It will be certified to the circuit and probate courts of Lenawee county that the order of the probate court is affirmed, with costs against the appellant.
McGrath, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Grant, J.
Plaintiff’s house and its contents were consumed by fire July 11, 1888.- He instituted this suit, charging that the fire was caused by the negligence of the defendant.
The declaration contained three counts. The first charged that the defendant neglected to use proper and reasonable care to prevent the escape of fire from his fire-pit; the second, that it was dangerous on that day for defendant to light a fire or permit it to burn in his fire-pit, on account of the wind and condition of the weather, and dryness of the surroundings; the third, that he neglected to build a high board fence around his fire-pit, or to provide anything to prevent the escape of fire therefrom.
Defendant owned and operated a saw-mill situated on the easterly bank of Thunder Bay river. This mill had been in operation for 25 years, and was run by waterpower. Defendant purchased it in the spring of 1887. To the south and east of this mill is situated the city of Alpena. Prior to the purchase by the defendant, a portion of the refuse from the sawing had been consumed in a similar pit, considerably nearer the city. Defendant disposed of the waste matter from the mill by hauling and piling it in a vacant field along the bank of the mill-pond to the north and east of his mill. Upon this was placed the sawdust ready for burning in the winter. Nearly east of this he piled his slabs. Between these two piles was a public highway. A railroad, running nearly east and west, crossed the highway and the mill-pond to the south of these piles. The fire-pit then used was in a ravine extending from the river, and further up stream. The distance from the fire-pit to the sawdust pile was 28 rods; to the slab pile, 42 rods; to the mill, 112 rods; and to the plaintiff’s house, 304 rods. The wet debris from the mill was hauled to this pit daily, into which it was dumped and burned. It was hauled along this public highway till nearly opposite the pit, the fire-pit being to the west of the road. To the north and east of this road, opposite the fire-pit, was vacant land covered with brush, stumps, logs, and debris. A short distance from the mill, and to the north and east, were situated the defendant’s boarding-houses and barn. Near the slab pile was the roundhouse of the railroad company. Between the fire-pit and the plaintiff’s lot is what is known as the “Taylor Forty,” on which was an old sawdust pile, which was 224 rods from defendant’s pit. Men were engaged in clearing up this “Taylor Forty,” and were burning up the debris on it, upon the day of the fire. The parties engaged in this work testified to this, as did also others who saw the fire. Fires had also been burning for several days to the north and east of the fire-pit, and several witnesses testified that defendant shut down his mill, so that his employés might fight the fire coming down from these plains. A large number of witnesses testified that the fire that consumed the defendant’s slab pile, sawdust pile, boardinghouse, and the roundhouse, came from the plains. One witness for the plaintiff, who was at work about 50 or 60 rods from the fire-pit, sorting logs for the boom company, testified that he saw the fire leave the fire-pit about 11 o’clock, and run along until it reached the sawdust pile. His is the only testimony that the fire emanated from the pit. The defendant’s employés started the fire in the pit in the morning between 7 and 8 o’clock. The wind was then from the north, and was not blowing hard. Later in the day it changed to the north-west, blew very violent, and a fire swept -down through the city, destroying a large portion of one ward, and burning about a hundred houses.
It is unnecessary for us to determine from which one of these three sources emanated the fire which destroyed the plaintiff’s property. He has failed upon this record to make out a case of negligence upon either count of his declaration.
There was no evidence that the failure to erect a fence was negligence. Defendant conducted the business in the .same manner it had been conducted for 25 years. No one appears to have thought there was danger in so doing. The only evidence from which the jury could infer negligence in this respect was the fact that after the fire the ^defendant erected a fence, and that since' its erection no ■fire had spread from the pit. This evidence was admitted under objection. It was clearly incompetent under the frequent rulings of this Court. Its sole purpose was to influence the jury, and there was no other evidence from which they could find that common prudence required ■the maintenance of a fence.
There is no evidence whatever that the defendant did •not take the proper precautions to watch and guard this fire to prevent its escape. No such wind is shown to have been blowing as to have rendered it imprudent to start the fire in the pit, nor that defendant did not have .a sufficient number of employés there for protection. The wind was not then blowing in the direction of the city. If it suddenly shifted, and increased greatly in violence, the defendant was clearly not liable for tbe consequences.
The plaintiff, upon the trial, evidently planted his right of recovery upon the idea that it was negligence-to use this fire-pit at all, and the court left it to the-jury upon that basis. No such charge is made in the-declaration. It is framed upon the theory that it was lawful to use it for the purpose of burning the waste material, but that defendant was guilty of negligence in. one of the three particulars already mentioned.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
McGrath, J.
In August, 1884, Robert Merrick entered into a contract with the J. E. Potts Salt & Lumber Company to manufacture salt at the company’s salt-block. The agreement provided that said Merrick should “furnish all barrels, nails, lime, butter, etc., and pay all needed repairs on said block, excepting the necessary galvanizing of pipes, as hereinafter mentioned; that he will deliver' said salt, piled in good workman-like manner on the dock, as contemplated in said contract; and that he will manufacture the quantity of salt contemplated in said contract for the said term of five years, as mentioned in said contract;” that the lumber company ■should pay to said Merrick “thirty-five cents per barrel for salt so manufactured and delivered, said payment to be paid monthly, and to be paid on the 20th of each month for the amount so manufactured and delivered during the next preceding month;” and that the said Merrick “will be responsible for the said salt until it ■shall be delivered to the boats or vessels from the said 'dock, danger of fire or other calamity excepted; and that he will count the said salt, and deliver it only upon the written order of the said party of the second part.” Merrick entered upon the work, and continued to manufacture until the fall of 1890.
In November, 1890, the lumber company gave a chattel mortgage upon all its personal property, including the salt in the salt block, upon the platform, and upon the docks. Within a few days thereafter the mortgagees filed a bill in the circuit court for the county of Wayne to foreclose said mortgage, and receivers were appointed, who proceeded to take possession of said property, and at the time of the filing of the petition herein had advertised the salt for sale. When the receivers were appointed there were several thousand barrels of the salt manufactured by Merrick in the block, on the platform, and on the docks, and the lumber company was indebted to him fin the sum of $11,970 on account of the manufacturing •of salt under said contract. Merrick, in May, 1891, filed :a petition in the said matter, setting forth that he had mot surrendered his possession of said salt, and had not 'delivered the same to any person, and praying that he might be decreed to have a lien upon said salt for the “balance due him. It appeared that petitioner had received .and discounted drafts upon said account, amounting to $6,350, which were unpaid, and the court gave him a lien for the amount of his account, less the amount of the drafts, and the receivers appeal.
Appellants contend that petitioner is not entitled to the relief prayed,—
1. Because under his contract he was bound to deliver the salt to the company before payment.
2. Because he had parted with possession.
Docks were erected and used exclusively in connection with this salt-block. Petitioner had charge of the block and these docks. While he was to deliver the salt upon the docks, the contract contemplated that it should remain there for some time afterwards, and by the terms of the contract petitioner was responsible for its custody and control, and it was not to be delivered to any one except upon the written order of the company. Petitioner simply delivered the salt from his own possession in the salt-block to his own custody upon the docks. The fact was that the most of the salt had not been placed upon the docks, but was still in the salt-block and upon the platform.
It cannot be claimed that Merrick had surrendered his possession to the mortgagees or to the receivers. The testimony disclosed interviews between the receivers and Merrick, at which the amount due the latter was agreed upon, and a proposition was made to Merrick that he release the salt, — permit it to be disposed of without prejudice to his rights. Merrick had not failed upon all occasions to assert his possession and lien.
As in Chadwick v. Broadwell, 27 Mich. 6, petitioner was entitled to monthly payments on all salt stored on the docks, irrespective of sales made or delivery to the boats; and there is nothing in the contract inconsistent with his right to require payment before the salt was delivered from said docks.
The contract does not bring the case within McMaster v. Merrick, 41 Mich. 505.
The decree below is affirmed, with costs to petitioner.
The other Justices concurred. | [
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] |
Long, J.
This suit was brought to .recover a balance-claimed as upon account current from 1873 to 1888.
Defendant married plaintiff's daughter in 1865, moved to Alpena, where plaintiff lived, in 1867, remained there till his wife died, in 1884, and then removed to Port. Huron. This suit was brought in 1888. According to-plaintiff's testimony, the account between the parties at the time of commencement of suit stood as follows:
Charles Thompson, Dr.
1873. March 3. To cash---------- §50 00
1873. April. To cash paid for lumber furnished defendant____________________________________ 69 94
“ To cash_____________________________ 137 00
“ To cash paid for interest on note........ 5 00
Sept. 1. To cash paid for interest on note........ 3 50
To account of P. M. Johnson & Co. vs. defendant, assumed by plaintiff________131 15
To cash paid for lumber furnished defendant. ................................... 700 00
October. To balance of joint housekeeping expenses. 133 05
To cash............ 1 00
To cash.......i.......................... 2 25
1882.
Sept. 30. To lath furnished defendant............. 10 00
1883.
March 2. To 6 lbs. butter............................ 2 10
Contra, Cr.
1874.
Jan. 15. By due bill on Luce_________ 15 00
“ 24. By cash__________ 2 00
“ “ By sundries............................ 54 48
April 15. By orders................................ 30 00
1877.
Jan. 12. By account of Gebhart & Co. vs. plaintiff, credited to defendant.............. 187 95
1878.
Feb’y 4. By 240 lbs. feed........................ 3 60
1882.
Sept. 30. By work done on house of plaintiff’s wife, 67 22
1888.
May 10. By furniture............ 68 5Q
Defendant pleaded the general issue, with notice of tha statute of limitations.
Plaintiff kept books of account, and entered upon the ledger account the items from 1873 to 1877 at page 123, and the items in 1882 and 1883, as a new account, upon page 118.
The plaintiff filed with his declaration a bill of particulars. On the trial, and after a witness had been sworn, the plaintiff, on motion, was permitted to amend his bill ' of particulars, against defendant’s objection. By this amendment the plaintiff was permitted to insert an item of $187.95 on the credit side of the account, and also to insert a date of two different items of the account on the debtor side. Permitting this amendment constitutes the first claim of error. There was no claim of surprise on the part of the defendant, and defendant did not ask an adjournment or continuance of the case for time to enable him to examine these items. If the items referred to are proper matters to be considered, — which I shall discuss later, — the court was not in error in allowing the amendment to be made. If the defendant wished time to investigate the items, or claimed any surprise by the allowance of the amendment, so that he was not prepared for trial, a continuance should have been asked by him; and, if overruled in that, he might properly claim that his rights had been prejudiced. But, as the matter is shown by the record, we cannot say that the court was in error in allowing the plaintiff to amend.
The plaintiff had judgment for $1,246.36.
Aside from the claim of error above discussed, the defendant claims that the court was in error in permitting certain evidence to be given, and in refusing certain requests to charge, as well as in certain portions of the charge as given.
It is first contended that the court was in error in permitting the plaintiff to give evidence relative to the value of a mortgage given by defendant to plaintiff’s wife, and in permitting the plaintiff to state why the mortgage was taken back from defendant to plaintiff’s wife.
The facts attending the transaction are, briefly, that in 1873 defendant went into business with one Gebhart, in the building of a planing-mill. In order to raise money to stock the mill, the defendant called upon the plaintiff, who induced his (plaintiff’s) wife to join with him in the execution of a mortgage on the homestead at Alpena, which stood in the wife’s name, of $1,000. The loan was made of one .Minor, and the money paid out for defendant’s benefit. At the time this mortgage was given, defendant and wife made a mortgage on their property in Alpena to Mr. Lester’s wife of $1,000. This mortgage was held by plaintiff, and not turned over to Mrs. Lester. It proved to be worthless, as the property was incumbered by a prior mortgage equal to its value, and the whole property went to pay it off. The $1,000 raised by the mortgage to Minor on the homestead of plaintiff’s wife was mostly handled by plaintiff, and he testifies that he paid it out for the defendant, and that some of the items charged in the account arose from such payments. A note was given by the defendant with his mortgage, and deposited by the plaintiff in the bank as collateral to his own note, and moneys raised, which were also turned over to pay for stocking the mill and other purposes for defendant. It is this way that the plaintiff explains some of the items contained in his bill of particulars.
We do not think there was any error in permitting the proof to be given, or in permitting the explanation that the mortgage given by defendant was of no value. It is shown that the security was given upon the wife’s homestead for the $1,000, some portion of which was paid out for the defendant by plaintiff, and, presumably by his wife’s consent, charged by the plaintiff in the account against the defendant. It is not claimed that Mrs. Lester ever made any claim for this money, or charged it to the defendant in any account. The defendant gave a mortgage as security for the loan to Mrs. Lester, yet that mortgage remained in Mr. Lester’s hands, and never was turned over to Mrs. Lesfbr, and not a dollar was ever collected upon it. The course of dealing was such between Mr. Lester and his wife and the defendant that it is made apparent that it was the intention of the parties that the amounts loaned the defendant, realized from the Minor mortgage, were to be charged in Mr. Lester’s account. The court was not in error in permitting these explanations to be given.
It is also claimed that the court was in error in permitting the plaintiff to introduce in evidence his books of account. It was not error to permit the books of account to be used in evidence. The statute expressly provides that such books of account, containing charges for money paid, laid out, furnished, or lent, shall be received and admitted as evidence. How. Stat. § 7526. The court properly guarded the rights of the defendant in admitting the books in evidence by saying:
“ They are memoranda from which the plaintiff may refresh his recollection, and testify in regard to the transactions themselves. The books are admitted for this purpose.” Montague v. Dougan, 68 Mich. 98.
It is also claimed that the court was in error in refusing to instruct the jury, as requested by the defendant, that the account, as proved, was not a mutual, open account current under the statute. Upon this question the court charged the jury as follows:
“It is provided by our statute that all actions of assumpsit or on the case, founded upon any contract or liability, express or implied, shall be commenced within six years next after the cause of action shall accrue; and in all actions to recover the balance due upon a mutual and open account current the cause of action shall be deemed to have accrued at the time of the last item proved in such account. The transaction between the parties, as shown in evidence, extended back to the year 1873, and, of course, the transactions at that time, being much more than six years before this suit was commenced, would be barred by the statute unless they, with others dating within six years before the suit was commenced, constituted such mutual and open account current within the meaning of the statute. In this view it is important that you understand what is meant by such mutual and open account. It may be defined to be such as is made up of matters of set-off or accounts between the parties who have a mutual course of dealings under an implied agreement that one account shall be an offset against the other so far as it will go. But the account must not all be on one side; it must be mutual, and the accounts must have been permitted to run along with a yiew by the parties of ultimate adjustment by settlement and payment of the balance; and it is this balance, which may constantly vary from time to "time, which constitutes the debt, and the burden is upon the plaintiff to show the fact that such a balance of account existed in his favor by accounts brought down to within six years before this suit was commenced, and without any interval of six years between any of the items of account. That is, if such an interval in fact existed, the items before it would be barred, and no recovery could be had thereon,— that is, unless the claim has been revived by payment made on the account within six years before the commencement of suit, concerning which I will instruct you further.”
This was a fair submission of the question whether it was an open, mutual account under the statute. It comes within the ruling of this Court In re Hiscock’s Estate, 79 Mich. 538; Kimball v. Kimball, 16 Id. 218; Campbell v. White, 22 Id. 178; White v. Campbell, 25 Id. 463; Sperry v. Moore’s Estate, 42 Id. 354, — if there was any evidence which the jury could consider which would make proper charges in the account the cash items of $1 and $2.25, the date of which the plaintiff was permitted to correct, and the item of $187.95, which the plaintiff was permitted to put into the bill of particulars by amendment. In the original bill of particulars the cash items bore no date. Standing in that way there was a lapse in the debit side of the account from October, 1873, to September 30, 1882, a period of nearly nine years. By the amendment these cash items were placed under date of January 1, 1877, and appear by the bill of particulars and proofs to be for cash paid for cleaning defendant’s wife’s dress, $2.25, and repairing ring, $1. The defendant denies all knowledge of these cash items. He also denies that there was an arrangement by which the account of Gebhart & Co. should be credited to him by the plaintiff, and the testimony of the plaintiff is very unsatisfactory upon this point. So that from 1875 to 1883 — a period of seven years — there is no item as to which defendant has not given testimony tending to show that it was no part of the open, mutual account between the parties. This being the case, it was at best a question for the jury as to whether the parties intended these transactions as a part of the mutual, open account. This should have been submitted to the jury as a question of fact.
In Be Hiscoclc’s Estate, 79 Mich. 536, it was said:
“The statute of limitations, which excepts certain accounts from its operation, is confined to such as make a mutual and open account current.' It must be mutual as well as open. This, according to the consistent course of authority, means a course of dealing where each party furnishes credit to the other on the reliance that upon settlement the accounts will be allowed, so that one will reduce the balance due on the other. The doctrine is very well set forth, with the decisions, in Busw. Lim. c. 4, § 5; and is recognized in Kimball v. Kimball, 16 Mich. 318: Campbell v. White, 33 Id. 178; White v. Campbell, 26 Id. 463, and notes; Sperry v. Moore’s Estate, 43 Id. 354.”
The last item of credit in the account is for furniture— $68.50 — purchased' on May 10, 1888. The evidence is quite contradictory on the question of whether the amount of this furniture was to be credited upon the plaintiff's account with intent to revive the whole account. The plaintiff's testimony upon that matter is as follows:
“A. Here is a credit for some furniture I got of Mr. Thompson in May, 1888. The head of the page is May 10, 1888;' and I guess that is about the time.
“ Q. Will you tell us how you came to gee that?
“A. I took my account to Mr. Thompson some time before this, and asked for a settlement. I told him I wanted to get a settlement of our old accounts. They had been running a long time, and I was getting afraid, and I wanted to settle, and I rendered him a bill of items. He looked it over, and said he could not pay that. He said to pay that bill would interfere with his business, and he could not do it, and wouldn't do it. Well, I told him I would take his notes, if he would give me his notes, and get a settlement. I told him if he would give me his notes I could get along with them. Well, he said he wouldn't give his notes. I made him an offer if he would settle it up then I would take his notes at six, twelve, eighteen, or twenty-four months, ■without an indorser; and I knew he could pay it in that time. That would be $250 apiece for the notes. That would be $1,000. I offered to settle for $1,000. He said he wouldn't give his notes to anybody. I told him I needed the money, and I would like to get it. I asked him then if he would give me his notes for $200. I told him then that I had broken up housekeeping two years before, and had disposed of many of my things in the house. I had to buy some stuff and some furniture, and I wanted to get some money to do it. I had not the means. Well, he said he would not give his note to anybody. Well, after he refused to give the.$200, I asked him if he would let me have a little furniture, — let me have a little furniture on the account. He hesitated a little, but finally said he would, and wanted to know what I wanted. Well, 1 told him I only wanted a'small bill. I wanted a bed-room set, with mattress and springs, and some dining-room chairs and a few other chairs. Well, he went out with me to look them over. He showed me a bed-room set, and I think he said he would put in a good mattress. I don't think I saw it. The springs I don't think I saw. And he showed me dining-room chairs and a bed-room set and bureau and washstand. He gave me the price of the bed-room set, — $28. And the mattress and springs, I don't think he gave me any price of them. I don't think I saw them. I told him what I wanted, and he said he would put them in.''
It is claimed on the part of the defendant's counsel that the plaintiff's own testimony does not show that by this transaction the parties intended to revive the whole debt, and that there was nothing to submit to the jury on tha.t point. The rule is well settled that part payment is but evidence of an admission of an indebtedness; but an admission of an indebtedness, to take the case out of the statute, must be such as reasonably leads to the inference that the debtor intended to renew his promise to pay, which it evidently cannot do if it is accompanied by circumstances which repel the idea of an intention to pay. Brisbin v. Farmer, 16 Minn. 225; Jewett v. Petit, 4 Mich, 508; Sigourney v. Drury, 14 Pick. 390; Hale v. Morse, 49 Conn. 482. In the last case it was said:
“ A .payment [of a part of a debt] accompanied by acts or declarations showing that the debtor does not intend to pay more, will not revive the unpaid balance of a debt upon which ■ the statute of limitations has taken effect.”
The court submitted the question to the jury to determine whether it was the intent of the parties by this transaction to revive the whole debt. We think there was no evidence to go to the jury on that point; that the version of it given by the plaintiff does not tend to show that Mr. Thompson intended to do any such thing. He protested that he could not pay it, as it would interfere with his business, and he couldn’t do it, and wouldn’t do it. The court was therefore in error in submitting to the jury the question of the intent of the defendant to revive the whole account by letting the plaintiff have the furniture.
The last item of the account on the credit side to revive it, aside from this furniture, is for work on the house of plaintiff’s wife, $67.22, under date of September 30, 1882; and, on the debit side, 6 pounds of butter, $2.10, under date of March 2, 1883. There is also an item on the debit side of lath furnished the defendant, $10, under date of September 30, 1882. If the suit was commenced within six years after September 30, 1882, then the item of furniture was not necessary to be credited to prevent the bar of the statute, as there can be no question that up to that date the account was a mutual, open account current, if the jury believed the testimony of the plaintiff. The declaration is dated August 18, 1888, but it nowhere appears by the printed record, the briefs, or the manuscript record returned to this Court just when the narr. was served. We -do find, however, in the manuscript record a copy of the bill of particulars, filed with the clerk of the circuit court September 25, 1888, so that we conclude the suit was commenced within the six years from the date of these two last items of debit 'and credit.
For the errors pointed out the judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Morse, C. J.
This is an action for slander. The ■circuit judge directed a verdict for defendants.
The declaration averred that defendants said of and ■concerning plaintiff, in the presence and hearing of William H. Chesebrough, secretary and treasurer, and William O. Lautner, vice-president and business manager, •of the Detroit Metallic Casket Company, the plaintiff being an employé of said company,—
“She is a thief.’ She has stolen broadcloth from the Detroit Metallic Casket Company.”
In another count it is charged that- defendants said in •substance in this conversation:
“She has lately made up four or five black broadcloth dresses, and two or more light-colored broa.dcloth dresses. You had better look out for her, and see what she does with your broadcloth. She acts suspiciously about them, and does not come honestly by them. She conceals them, and does not want people to know about them.”
It is alleged that the precise language cannot be given^ ■because of the refusal of the officers of the said Detroit Metallic Casket Company to give the same.
TJpon the trial nothing at all was proven against Tomlinson, and it is not claimed that any cause of action was shown against him. But it is contended that the case ■ should have gone to the jury as against Mrs. Anderson.
The plaintiff was forelady in the factory of the Detroit Metallic Casket Company. She rented a house of defendant Mrs. Anderson. In the forenoon of February 24, 1890, Mrs. Anderson went to the office of the company, and saw Mr. Chesebrough. Another lady was with her, whom she introduced to Chesebrough, but he could not remember her name. Mrs. Anderson testifies that it was-Miss Turmin, who lived and worked at her house. Chesebrough swears that Mrs. Anderson said that she was the landlady of plaintiff, and had come to see how much plaintiff was getting a week, and whether an arrangement could not be made by which she could receive any of it to apply on what was owing her for rent; that the other lady, in the presence and hearing of' Mrs. Anderson, said to him as follows:
“She warned me that there might be something taken,, and possibly broadcloth; but what the words were I cannot tell exactly. She hinted to me in that way, you know, that I might be on my guard; that I had better be on my guard.
“Q. Did she give you any reason why?
“A. Well, I think she did say she had noticed some-stuff there, or something of that kind.
“Q. What did she say she had noticed there?
“A. Some cloths.'
“Q. Did she say anything about what had been done-with the cloths?
“A. I think she saw some piece goods. Some was in the piece, and making some up in dresses.
“Q. How many 'dresses did this lady say had been made up?
“A. I think she made a remark something like this: ‘Two or three dresses.’
“Q. Did you ask what color they were?
“A. I don’t remember, but it is quite likely I did.”
He communicated this to Mr. Lautner. The plaintiff’s house was searched, but nothing found belonging to the company. He also testified that Mrs. Anderson took no-part in the conversation. Plaintiff was dismissed from the employment of the company upon the same day, but Mr. Lautner testifies that she was dismissed because she admitted that she had taken a table-cloth. Plaintiff denies this. Mrs. Anderson testifies that she said'noth ing while there about broadcloth; did not hear Miss Turmin say anything whatever to Chesebrough; and that •she was not out of her presence any of the time while •there. Miss Turmin was not sworn. Plaintiff testified •that she had never appropriated anything from the company; that she was renting a house of Mrs. Anderson; found she could not pay the rent, and told her that she would have to give up the house, and get a cheaper one, ■and would try and pay $5 per week on the back rent. Mrs. Anderson wanted she should give her an order on the company, and when she refused to do so Mrs. Anderson said, “ You will be sorry for it.” Mrs. Anderson, the next day after this talk, commenced proceedings to •oust plaintiff for non-payment of rent.
The direction of the court was correct. The fact that Mrs. Anderson had had trouble with plaintiff- about rent, 'and had said to her, “You will be sorry;” and the further fact that Miss Turmin, who lived and worked for Mrs. Anderson, spoke slanderous words of plaintiff in the presence and hearing of Mrs. Anderson, — would not justify a jury in finding that Mrs. Anderson was the author or instigator of the slanderous words so spoken. Mrs. Anderson said nothing and did nothing, according to Ohesebrough’s testimony, militating against the plaintiff; and there is no evidence that she heard what Miss Turmin said, except from the inference of her presence within hearing distance. She denies hearing it. There ought to be something more in a case than there is in this one in order to hold one person liable for slanderous words uttered by another. Odgers, Sland. & L. 360; Newell, Defam. 376.
The judgment is affirmed, with costs.
McGrath, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Long, J.
The respondent was convicted of the larceny of a horse in the Genesee circuit court on a trial before a jury, and sentenced to imprisonment in the State House of Correction and Reformatory at Ionia for the period of two years.
The information upon which the respondent was convicted is in one count, and recites that—
“Fred Martin, late of the township of Davison, in the-county aforesaid, on, to wit, on the 22d day of September, A. D. 1891, at the township of Richfield, in the county of Genesee • aforesaid, one cream-colored mare, about six years old, of the value of, to wit, of the value- of $50, of the goods, chattels, and personal property of' one Lewis Carr, there being found, from the possession-of him, the said Lewis Carr, then and there, in the day-time, of said day, feloniously did steal, take, and carry away, against the form of the statute in such case made and' provided, and against the peace and dignity of the people-of the State of Michigan.”
On the trial considerable testimony was given as to the value of the mare. The people's witnesses placed the value from $30 to $60, and the defendant's witnesses at from $18 to $20. At the close of the testimony,, counsel for respondent requested the court to instruct, the jury as follows:
“3. The value of the pony is material in this case.. It will be your duty to find the value of the pony, and, if you find the value not to exceed the sum of $25, it. will be your duty to report said value with your verdict,, providing you find the respondent guilty of stealing the pony.”
This request was refused, and the court charged the jury as follows:
“ Considerable has been said and argued here in regard, to the value of the horse. * * * If counsel in this ease had read section 9180 of Howell’s Statutes, it would have appeared that the Legislature did not class horses among the general class of property subject to. larceny. It reads as follows:
“ ‘ That every person who shall steal any horse, mare, gelding,, foal or filly, ass or mule, of any value, or who shall receive, buy, conceal, or aid in the concealment of any stolen horse, mare, gelding, foal or filly, ass or mule, knowing the same to have been, stolen, shall, upon conviction thereof, be punished,’ etc.
“ All the law requires is that the property shall have some value. So whether the horse is worth $50, $30, $25, or $18 is of no consequence, if the horse or mare-is of some value, and it was feloniously stolen.”
The learned circuit judge was in error in holding and-ruling that the value of the mare stolen was of no consequence in the present, trial. The information contained but one count, as hereinbefore Bet out, and was evidently- framed under the general statute for larceny. Under that statute, where the yalue of the property stolen is of less value than $35, upon a conviction the punishment cannot exceed, by way of imprisonment, one year; and under that statute it would be the duty of the jury to ascertain the yalue of the property stolen, and report the same to the court, so that the court might, in passing sentence, determine the maximum punishment.
The circuit judge was in error in supposing that under ■the information, as framed, the case could be brought upon trial within the provisions of How. Stat. § 9180. In People v. Town, 53 Mich. 488, this Court expressly held that—
“A conviction for horse-stealing will not warrant the special statutory penalty for that offense, if the information does not refer to the statute imposing it.”
This was but following the rule laid down in People v. Jones, 49 Mich. 591, in which it was said:
“The description of the property stolen, as contained in the information, does not challenge special attention to this act of 1877, nor is there any express reference to this act to show the source of right relied on.”
We think the case falls directly within the ruling of this Court in the above cases, as the information does not purport to be filed under the provisions of section 9180, and no reference is made in the information to that statute. If the case had been submitted to the jury .as to the value of the property stolen, they might have found it to be less than $35; in which event the trial ■court could not have inflicted punishment, by way of imprisonment, to exceed one year.
The conviction and sentence must be reversed, and a new trial ordered.
Morse, C. J., Grant and Montgomery, JJ., concurred. McGrath, J., did not sit.
See How. Stat. § 9140. | [
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] |
Montgomery, J.
The plaintiff commenced a suit by-attachment in justice’s court. There was no personal service. The defendant appeared specially, and moved to dismiss on the ground that the affidavit upon which the writ issued was fatally defective. The ground for attachment, as stated in the affidavit, was—
“That the said Edward D., White is not a resident of' this State, and has resided in this State for one month next immediately preceding this date, as this deponent verily believes and as he has good reason to believe, and-as he very well knows.’’
The justice refused to dismiss the suit, and permitted the plaintiff to amend the affidavit, which was done by inserting the word “not” before the word “resided.” 'The affiant was not resworn. The defendant removed the case to the circuit court by special appeal, and the ■circuit court reversed the ruling of the justice, held the ■affidavit a nullity, and dismissed the suit. From this ruling the plaintiff appeals.
The averment in the affidavit, “The defendant has not resided in his State for one month before suit,” is jurisdictional, and must be so stated that perjury may be predicated upon it if false. There is no statute now in force permitting amendments to attachment affidavits, •and such amendments have never been deemed admissible under the general statutes, § 7631, which provides that “the court in which any action shall be pending shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice.” The following cases sustain the ruling of the circuit judge: Slaughter v. Bevans, 1 Pin. 348; Winters v. Pearson, 72 Cal. 553 (14 Pac. Rep. 304); Claflin v. Hoover, 20 Mo. App. 314; Engine Co. v. Hall, 22 Fla. 391.
After the special appeal was taken to the circuit court, ■defendant’s attorney, Mr. Sweezey, caused his appearance to be entered in that court, and it is claimed that this was a waiver of the defect, and conferred jurisdiction upon the court to proceed with the case. But when it is considered in connection with the special appeal, it would be persuming against the fact to assume that there was any intention on the part of the defendant to submit himself to the jurisdiction of the court. In the case of Michels v. Stork, 44 Mich. 2, the defendant appeared .generally on the return-day in the case, and at the same time moved to dismiss the writ because no proper service was shown by the return. The Court held that this was not such an appearance as would give the justice jurisdiction. The Court say:
“A justice of the peace may acquire jurisdiction over the person, either on a return showing proper service of the writ, or on the voluntary appearance of the defendant. But where the defendant appears and objects to the jurisdiction because no proper service of the writ appears to have been made, we do not see how this can be considered as a submission to the jurisdiction. It has. been assumed that the defendant must declare that he appears specially for the purpose of making his motion or objection, and for no other purpose, or that jurisdiction will be conferred because of his general appearance. No doubt a general appearance would confer jurisdiction,, but the appearance and objection then made should be considered together; and, so considered, the objection or motion made limits and explains .the appearance, and clearly indicates an intention not to .confer a jurisdiction where one' is wanting. This, to my mind, is the more reasonable and sensible doctrine, does away with needless-technicality, and certainly injures no one, while it promotes justice, and prevents a grasping at shadows.”
The judgment will be affirmed, with costs.
McGrath, Long, and Grant, JJ., concurred. Morse, C. J., did not sit. | [
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] |
Montgomery, J.
The plaintiff recovered a verdict in the Ionia circuit court on a policy of insurance covering his barn and sheds, farm implements, stacks of hay and grain, and other property.
The defenses relied upon were:
1. That the fire was occasioned because of the plaintiff’s failure to observe by-law 18, which contained provisions as follows:
“This company will be liable for a loss occasioned by the use of steam-engines for threshing, provided some suitable person shall keep watch around the engine at all times after the fire is kindled in such engine until the fire is put out. * * * But if the engine used is known to be in any way defective, or if any one of the conditions herein named is not complied with,- this company will not be liable for any loss sustained from the use of engines for threshing.”
2. Misstatements contained in the application for insurance relative to the plaintiff’s title and to the incumbrances upon the property.
3. A violation of by-law 7, which provides for proofs of loss, and contains a provision that—
“If there be any fraud, or false swearing with fraudulent intent, the claimant shall forfeit all claim by virtue of this policy for such loss.”
The fact appears undisputed that the personal property insured was covered by chattel mortgages which were not mentioned in the application. The plaintiff testifies that he understood the statements in the application to relate to the real estate, and further testifies that the fact that, there was an incumbrance upon the personal property was brought to the attention of the secretary when the-policy was written, and that, as he was not asked to-note that fact in the application, he deemed it unnecessary. This is disputed by the secretary. The plaintiff' further claims that the company has waived its right to-insist upon the forfeiture of the policy upon this ground.
It also appears that in making proofs of loss the-plaintiff swore that he—
“Was the sole owner of the property lost, and that, there is or was no other incumbrance on the same, except that mentioned in my application for insurance, being No. 5,774, and that I have complied with all the-by-laws of the company printed on my said policy.”
Admittedly this does not state the exact facts as toincumbrances, but it is claimed on behalf of the plaintiff" that no fraud was intended; that these proofs were prepared by the secretary; that the plaintiff signed them without consideration; and it is further contended that-before the proofs were signed the defendant's agent knew of the incumbrances, and took this means to entrap-plaintiff, and did not insert this statement with a view to relying upon it, and that the company was not in fact misled by it. It is also insisted that this defense-was waived.
As to the defense that the plaintiff failed to observe by-law 18, it is claimed by plaintiff (1) that it was substantially observed, as a matter of fact; (2) that the presence of the engine did not cause the fire; and it is-further claimed that any defense on this ground has-been waived.
Shortly after the loss was sustained, a committee of' the board of directors, including the president and. ■secretary of the company, visited the plaintiff’s farm where the fire occurred, and proofs of loss were made ■out and taken away by the secretary. A few days later •the secretary wrote plaintiff the following letter:
“Silas W. Towle,
“Lowell, Mich.: The statement of loss made by .you October 22 has been examined by the adjusting committee of the company, and by them considered as rather unsatisfactory. I would like to have you call at the •office as soon as convenient and talk this matter over. Any time next week will do if convenient to you. Respectfully yours,
“J. Warren Peake,
Secretary.”
The plaintiff went to Ionia, and was there informed by the secretary that the adjusting committee declined to adjust the loss, and who told him that the reason it was unsatisfactory was that the company had been ■deceived and misled into issuing the policy, because the state of the title and incumbrances had not been correctly -stated in his application. This was the only reason assigned, and at the same time Mr. Towle was advised to appear before the full board and present his claim. In ■the mean time an assessment had been made upon the policy, and on December 28, 1889, plaintiff paid his assessment on his policy, and the board then passed a resolution refusing to pay the loss. The resolution assigned no reason for this refusal. At the same meeting an •assessment of two-tenths of 1 per cent, was ordered. Some time after the assessment roll was made out the plaintiff was assessed on his policy $6.40. On May 31 a notice of assessment was sent to the plaintiff, as follows:
■“Silas W. Towle:
“At a meeting of the board of directors of said company, held in the city of Ionia, January 15, 1890, a pro rata assessment of two-tenths of one per cent, was ordered, made payable during the month of June, 1890; •and, in case of policies canceled since that date, a further j>ro rata assessment of such canceled policies for all losses and expenses of the company from said 15th day of January, 1890, to date of cancellation, for not later than April 15, 1890. Your assessment on your policy No. 5,774, $6.40. You will please pay the same during the month of June, 1890.”
This is followed by a statement as to whom and where the assessment can be paid; calls attention to certain sections of the charter and by-laws; is followed by a list ■of losses that had been adjudged from April 4, 1889, to January. 15, 1890; and then follows a list of losses resisted, —George W. Yan Alstine, Oneida, $360, and Silas W. Towle, of Boston, $1,600; and is signed, “J. Warren Peake, Sec.” On the 30th day of June, Mr. Towle paid bis assessment, and took a receipt, reading as follows:
“June 30, 1890.
“Beceived of Silas W. Towle, for assessments June, 1890, for losses by fire or lightning, by Ionia, Eaton & Barry Farmers" Mutual Fire Insurance Company, $6.40. .No. 5,774.
“J. Warren Peake, Agent, “per L.”
The controlling questions relate to the effect of these ■assessments and payments by the plaintiff, as tending to show waiver, and as to the waiver of the defenses under by-laws 7 and 18 by other acts of the company; the plaintiff contending that, as to all the defenses except the misstatements relative to the condition of the title, the defendant estopped itself by stating to the plaintiff that it relied for its defense on the misstatements relative to the condition of title, and that the plaintiff thereafter incurred expenses in attend, ing upon the board, making his proofs of loss, and instituting his suit, which he would not have incurred had the defenses now urged been set up. The plaintiff further insists that the defense depending upon the misstatements as to title was waived by the assessments made upon the policy, after such misstatements were known to have been made and after the loss occurred.
It is most strenuously insisted on the part of the defendant that the court erred in failing to discriminate between facts which would show a waiver of the defendant’s right to avoid the policy for misrepresentation as to the state of title and incumbrances, and the acts of alleged waiver in asserting as the only point of defense the misrepresentations, by which it was claimed the-defenses depending upon by-laws 7 and 18 were waived.. The instruction complained of is as follows:
“If the company, after knowledge of the facts, has-done something which gave the plaintiff the right to think that the defendant regarded it as a subsisting contract, upon which the other party has relied, that is, upon which the plaintiff has relied, and done something so that now it would be inequitable to permit the defendant to insist upon the fraud claimed, then it would beheld to be estopped from asserting the fraud; so that, if you conclude that Towle understood that the company was asserting it by its acts, asserting the contract to be-valid between them, and was led to so believe by the acts of the company, and had the right from its acts to-so understand, and paid the money because of such understanding on his part, then the company would beestopped from asserting that this policy was obtained by fraud, or that there was fraud or false swearing after the-fire, or that by-law No. 18 was not complied with, if the-fire was caused by the ñre from, the engine.”
This portion of the charge is open to the criticism-passed upon it by defendant’s counsel, for it was not-inconsistent with the defendant’s claim that the policy continued in force for its officers to insist upon the-defense, as to the claim for loss under it, that the plaintiff had violated by-law 18, or that he had been guilty of willful false swearing with intent to defraud in making-proofs of loss. It will be noticed that the penalty under neither of these by-laws is a forfeiture of the policy, but it is provided in the one case that, “if there be any fraud, or false swearing with fraudulent intent, the claimant shall forfeit all claim by virtue of this policy for such loss;” and, in case of violation of by-law 18, that “this company will not be liable for any .loss sustained from the use of engines for threshing.” Plaintiff's counsel, in effect, concedes that this instruction, standing by itself, is not strictly accurate. But he insists—
1. That the error was cured by subsequent instructions.
2. That it conclusively appears that the defendant company waived this defense, by placing the defense on the sole ground of deception in issuing the policy.
3. That there was really no evidence that there was willful false swearing, upon which the defendant relied, or that by-law 18 was violated.
Without reviewing the testimony at .length, we think this third claim of plaintiff cannot be allowed. There was evidence for the jury on both questions, and while the facts and circumstances strongly support the plaintiffs claim that the misstatements in his proofs of loss were not made with intent to defraud, yet this was a question for the jury,, as was -also the question as to whether there was a substantial violation of by-law 18*
Later in his charge the court did instruct the jury as follows:
“If there was such false swearing with fraudulent intent, it is a perfect defense, and the plaintiff cannot recover unless defendant has waived its right to insist upon it by its actions and conduct after full knowledge of such false swearing with fraudulent intent.”
And, referring to the compliance with by-law 18, the court said:
“If not a substantial compliance, and tbe fire was occasioned by the engine, then there can be no recovery unless the company, with full knowledge of the facts, has waived its right.to insist upon this defense.”
These instructions correctly state the law, so far as they went, but in each instance the court added:
“ And the instructions already given as to waiver apply at this point.”
We cannot say that these instructions cured the error. The facts which would constitute a waiver of these defenses were not stated, and the only instruction preceding these left the jury to find a waiver of the two named defenses, as well as that depending upon the alleged misstatements as to the title, from the mere fact that the company had continued to treat the policy as in force. See, as to effect of such error, G. R. & I. R. R. Co. v. Monroe, 47 Mich. 152.
But, notwithstanding the failure to state to the jury what facts would constitute a waiver of these defenses, if the plaintiff is right in his contention that, as matter of law, the undisputed testimony shows that these defenses were waived by the insurance company, it then became the duty of the- court so to instruct the jury, and there was no error to the .prejudice of the defendant in permitting the jury to find such waiver, as matter of fact, from insufficient evidence. It has been held that where the testimony offered to show waiver is undisputed, and open to but one inference, and that favorable to the claim of waiver, it is then the duty of the court to instruct the jury that a waiver is shown as matter of law. Carpenter v. Insurance Co., 61 Mich. 635; Marthinson v. Insurance Co., 64 Id. 372; Cobbs v. Fire Association, 68 Id. 465; Cleaver v. Insurance Co., 71 Id. 421; Richards v. Insurance Co., 60 Id. 427.
In the present case the committee of the board had informed itself of the causes of the fire by visiting the scene, and by taking plaintiff's statement as to itB origin, and also knew of the existence of the incumbrances, and had the statements of plaintiff which are now claimed to be false and fraudulent in that regard in its possession. With this knowledge before it, the company placed its refusal to pay distinctly on the ground that there was 116 liability for the reason that the application failed to state the facts as to title, etc. When the adjusting ■committee left Mr. Towle on the day the proofs were made up, they stated to him they would look the matter over and report. The letter of the secretary, stating that the proofs were rather unsatisfactory, and requesting plaintiff to call at the office of the company, followed. The plaintiff did call, and the position taken by the company was then stated to him. The plaintiff subsequently spent his time going back and forth between his residence and Ionia in the attempt to adjust the loss, .and incurred the expense of bringing suit, before the two additional defenses were stated or claimed. Under these •circumstances it would be proper to instruct the jury, as matter of law, that the defenses were waived. Good faith required that the company should apprise plaintiff fully of its position, and, failing to do this, it estops itself from asserting any defense other than that brought to the notice of the plaintiff. Castner v. Insurance Co., 46 Mich. 15, 50 Id. 273; Richards v. Insurance Co., 60 Id. 420; Cleaver v. Insurance Co., 71 Id. 421.
The views above expressed render it • unnecessary to ■discuss numerous of the asssignments of error.
One other claim of the defendant should not pass unnoticed. This claim is that there was no proper testimony tending to show waiver by the company of the forfeiture because of misstatements in the application. It appeared that plaintiff had, before the policy in question-was issued, been insured by a policy of $3,250 in the-defendant company, and it is insisted that it was proper to assess the plaintiff on such former policy, and that the assessment was in fact made upon that policy. But,. as matter of fact, the assessment appears on the assessment book opposite the policy of this number, and the-notices refer to the policy by’ its number. It was therefore at least a question for the jury whether the defendant treated the policy in question as in force.
But it is claimed, further, that “it has been the-recognized doctrine in those states where mutual insurance has been conducted that in an action on a policy issued by such a company, where it appeared that the-company, with full knowledge that the policy had become void, assessed the plaintiff’s premium note on account of’ losses which occurred after the forfeiture, and collected the assessment, this did not revive the policy, but was-consistent with the right of the company to treat it as void;” and it is claimed that the testimony tending to show waiver in the present case should have been stricken out.
We think the rule in this State is that á mutual insurance company may waive a forfeiture of its policy if the assumed action of the company is by those authorized to act for it, and with full knowledge of the facts.. See Olmstead v. Insurance Co., 50 Mich. 200; Costner v. Insurance Co., 46 Id. 15; City Planing-Mill Co. v. Insurance Co., 72 Id. 654.
The case of Williams v. Insurance Co., 19 Mich. 468, cited by defendant’s counsel, is not in point upon the-question involved here. In that case the policy contained a stipulation that, in case the notes or obligations given-for the premium or any part thereof were not paid at-the maturity, the full amount of the premium should be- •considered as earned, and the policy should become void while said past-due notes, or any part thereof, remained overdue and unpaid. It was held that the court would .give effect to this agreement, and construe it according to its plain terms, and that the receipt of payment after •default was no waiver, because the company “ was entitled to its full payment in any event and in any .aspect of the case.” In the present case the company had to choose between treating the contract of insurance as subsisting and treating it as void for misrepresentations.
We have examined all the assignments of error relied upon with care, and find no error to the prejudice of •the defendant, and the judgment must be affirmed, with ■costs.
The other Justices concurred. | [
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] |
Grant, J.
Complainants filed a bill to redeem. Decree was entered for them, and defendant appealed to this Court, which affirmed the decree below. Curtiss v. Sheldon, 47 Mich. 262. The case was remanded for an accounting, and complainants now appeal from the decree fixing the amount due to the defendant. The accounting was in exact accord with the first decree, which was affirmed by this Court. Complainants now attack this decree on two grounds, viz.:
1. Because it allows the defendant 10 per cent, on his loans to them.
2. Because it holds defendant accountable for the rents actually received, instead of the rents which they insist defendant might have received.
The rate of interest was fixed by the parties, and 10 per cent, was at that time a legal and very common rate of interest. Courts possess no power, legal or equitable, to change the terms of contracts. No claim is made that there was any misrepresentation or fraud in fixing the rate of interest.
The property was occupied as an hotel, and it is insisted that the defendant might have realized a greater rent if he had permitted the lessee to keep a bar for the sale of liquors. Prior to 1875 the sale of liquors in this State was unlawful, and defendant clearly could not be held for refusing to permit the property to be used for an unlawful purpose. Since 1875 the sale of liquor has been lawful under very stringent regulations. Undoubtedly buildings can be rented for saloon purposes in many localities at higher rents than for other kinds of business. Non sequitur that the law imposed a duty upon Mr. Sheldon to lease the property for that purpose.
The decree in this case limits the amount due from complainants to the sums actually advanced, and to the cost of the improvements, taxes, and insurance. From this amount is deducted the amounts actually received by Mr. Sheldon for rents. After the execution of the deed to him, he believed that he owned the property. It was clearly to his advantage to realize all he could from the use of the property. The record shows, in my judgment, that he acted in good faith in renting the property, and exercised ordinary care and prudence in that regard. It is immaterial whether he was a mortgagee, trustee, or agent of the complainants. He was in possession by their consent, under a deed from them. At the time this deed was executed, complainants and Mr. Sheldon made a written agreement, by which he agreed to use reasonable diligence to sell the property within one year at a price that should be concurred in by both parties, pay himself the sums mentioned in the agreement, with interest at' 10 per cent, per annum, and pay the surplus to complainants. This agreement was at the time deposited with a third party, and appears to have been forgotten until the accounting before the commissioner, when it was produced by the party with whom it had been left. It is material to mention it here only to show the relations of the parties, and the conditions under which Mr. Sheldon accepted the deed. Mr. Curtiss, who is the assignee of Martin Mosher, by his own evidence relieves Mr. Sheldon from any charge of fraud or wilful neglect. When questioned as to the reason why Mr. Sheldon could not get as much for the premises as he (the witness) could get, he replied, “Because he did not know how to do it.” He also testified that he had not informed him that any person would give a larger rent.
It is unnecessary to discuss the question of fraud charged by the complainants against Mr. Sheldon, claiming that, in the settlements at and prior to 1872, he represented the. amounts due from complainants to be larger than they actually were. By the former decree, these settlements were set aside, and the complainants allowed to redeem upon the basis of the original amounts.
The decree is affirmed. Defendant will recover costs in this Court, and complainants will recover the costs in the court below.
The other Justices concurred. | [
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] |
Sherwood, J.
The plaintiff in this case sues to recover the value of goods shipped over the defendant’s road to Joplin, in the state of Missouri.
The plaintiff’s right of action is based on the claim that the defendant failed to comply with the contract of shipment, and delivered the goods in question without the production of the bill of lading, whereby the plaintiff was dam aged in the sum of $2,099.95. The trial of the cause was had in the superior court of Grand Eapids before a jury, and a verdict was directed for the defendant.
The essential facts to a correct understanding of the case, hot disputed, are as follows:
The defendant’s road extends from Grand Eapids to Eiehmond, in Indiana, and the plaintiff at the time the shipment was made was doing business under the name of O. E. Brown Manufacturing Company, and subsequently its name was ■duly changed to Eickerson Eoller Mill Company, and it does business in the city of Grand Eapids.
The plaintiff sold its mills in various sections of the country. For two years the plaintiff had sold mills to J. Halteman & Co., of St. Louis, Missouri. J. B. Seargeant, of Joplin, made a contract with Halteman & Co. for the purchase of a set of the plaintiff’s mills, and Halteman & Co. ordered a set from the plaintiff at Grand Eapids, and directed that they should be shipped direct to Seargeant, at Joplin. The plaintiff accepted the order, and delivered the mills to the defendant for shipment, and gave the fpllowing order therefor: '♦
“Grand Eapids, Mich., May 30, 1884.
“Delivered to the G. E. & I. Eailroad,
“By the O. E. .Brown Manufacturing Comp’y,
“ the following property, in apparent good order (except as noted), marked and assigned as in the margin, which they agree to deliver with as reasonable dispatch as their general business will permit, subject to the conditions mentioned below, in like good order (the dangers incident to railroad transportation, loss or damage by fire while at depots or stations, loss or damage of combustible articles by fire while in transit, and unavoidable accidents excepted), at-station, upon the payment of charges.
“ The company further agree to forward the property to the place of destination as per margin, but are not to be held liable on account thereof, after the same shall be delivered as above. The company, however, guarantee the through rate of freight as designated below.
“ CONDITIONS.
“!®”The company do not agree to carry the property by any particular train, nor in time for any particular market.
“ Oils, and all other liquids, whether carried in packages or tanks furnished by shippers, or by the company, to be at owner’s risk of leakage.
“ Liquids in glass or earthen, drugs and medicines in boxes, glass and glassware in boxes, looking-glasses, marble, stoves, stove-plates, and light castings, earthen or queensware, at owner’s risk of breakage.
“ Agricultural implements, cabinet-ware, and furniture not boxed, carriages, at owner’s risk of breakage or damage by chafing,
“ Oysters, poultry, dressed hogs, fresh meats, and provisions of all kinds, trees, shrubbery, fruit, and all perishable property, at owner’s risk of frost or decay.
“1S3F" It is apart of this agreement that all other carriers transporting the property herein receipted for as a part of the through line shall be entitled to the benefit of all the exceptions and conditions above mentioned, and, if a carrier by water, he is to be entitled to the further benefit of exception from loss or damage arising from collision, and all other dangers incident to lake and river navigation.
Grindstones and wooden bowls entirely at owner’s risk of breakage or chipping.
‘•frgp And all other conditions of the said railroad company.
O. E. Brown Manufacturing Oome’y, Consignors. •
Per Schroder.”
In accordance with this order the defendants shipped the goods, and on the delivery of the same to the company for that purpose the plaintiff was given the following receipt:
“Grand Eapids, Mich., May 30, 1884.
“Eeceived of theO. E. Brown Manufacturing Oomp’t, by the G. E. &. I. Eailroad, the following property, in apparent good order (except as noted), marked and consigned as in the margin, which they agree to deliver with as reasonable dispatch as their general business will permit, subject to the conditions mentioned below, in like good order (the dangers incident to railroad transportation, loss or damage by fire while at depots or stations; loss or damage of combustible articles by fire while in transit, and unavoidable accidents excepted), at-station, upon the payment of charges.
“'The company further agree to forward the property to the place of destination as per margin, but are not to be held liable on account thereof, after the same shall be delivered as above. The company, however, guarantee the through rate of freight as designated below.
“ CONDITIONS.
“ §gp’The company do not agree to carry the property by any particular train, nor in time for any particular market.
“ Oils and all other liquids, whether carried in packages or tanks furnished by shippers, or by the company, to be at owner’s risk of leakage.
“Liquids in glass or earthen, drugs and medicines in boxes, glass and glassware in boxes, looking-glasses, marble, stoves, stove-plates, and light castings, earthen or queensware, at owner’s risk of breakage.
“ Agricultural implements, cabinet-ware, and furniture not boxed, carriages, at owner’s risk of breakage or damage by chafing.
“ Oysters, poultry, dressed hogs, fresh meats, and provisions of all kinds, trees, shrubbery, fruit, and all perishable property, at owner’s risk of frost or decay.
“ IBpIt is part of this agreement that all other carriers transporting the property herein receipted for as part of the through line shall be entitled to the benefit of all the exceptions and conditions above mentioned, and, if a carrier by water, he is to be entitled to the further benefit of exception from loss or damage arising from collision, and all other dangers incident to lake and river navigation.
“ IEp"Grindstones and wooden bowls entirely at owner’s risk of breakage or chipping.
“ Up And all other conditions of the said railroad company.
H. P. Burgwin, Agent.”
This order and this receipt, commonly called a bill of lading, contain the contract between the parties for the shipment of the goods in question; and the plaintiff claims that it is a contract on the part of the defendant to carry and deliver the same at Joplin to J. B. Seargeant, on production of the bill of lading, or to his order, and that the production of the bill of lading was one of the conditions upon which the property was to be delivered to the consignee or to his order.
This bill of lading was as follows:
The plaintiff understood at the time this bill of lading was given that the railroad operated by the defendant did not run to Joplin, but that it ran from Petoskey, Michigan, to Richmond, Indiana.
There were a large number of railroads south of Grand Rapids crossing the defendant’s road going west, and among them was the Wabash, St. Louis & Pacific Railway. It has two branches crossing the defendant’s road going west, — one at La Otto and one at Fort Wayne. The defendant had an arrangement with the company to carry west-bound freight by way of La Otto.
On the thirty-first of May the goods in question left Grand Rapids over defendant’s road, and reached La Otto on the second of June, 1884, and on the same day the defendant delivered the goods in good condition to the Wabash road, and delivered to it a transfer bill, which, with the way-bill issued by the Wabash road, will be found on pages 118 and 119.
The Wabash road carried and delivered the goods to the Mismuri Pacific Railroad Company, and by it they were carried to Joplin, and there delivered to the consignee without the production of the bill of lading. In making the waybill west of La Otto, the words “deliver on bill of lading” were omitted. At the time of the shipment the plaintiff drew a sight draft on Halteman & Co., St. Louis, for the price of the goods, and attached to it the bill of lading. The draft came back unpaid. Halteman & Co. failed, and the plaintiff at that time had not received the pay for its mills.
The plaintiff claims that if the defendant delivered the goods for shipment to the Wabash Company at La Otto without the surrender to it of the original bill of lading, it then acted at its own peril, and if the plaintiff sustained loss thereby the defendant became responsible to the extent of such loss, which in this case was the value of the goods; that the contract made with the defendant was one to carry and deliver the goods at Joplin to the 'consignee or to his order on presentation of the bill of lading.
There is no doubt but that plaintiff could make such a contract with the defendant, and when so made the defendant would be held responsible for its performance. The authorities cited by counsel for plaintiff sufficiently establish this.
There seems to be no question but that the goods were carried safely within a reasonable time, and delivered to the consignee.
But three questions are presented upon this record needing consideration in this case:
1. Was the contract one for through carriage?
2. If so, was it violated by the defendant?
3. If it was not a contract for through carriage, did the defendant do or fail to do anything which should make it liable, even though the plaintiff has been damaged?
The first question is the important one in the case. The character of the contract must be determined from the receipt, the bill of lading, the shipping order, the situation and knowledge of the parties and their agents, and all the circumstances surrounding the transactions having any bearing upon the subject.
There is no evidence of any special agreement upon the subject outside of these.
It is well settled that, in the absence of any special agreement or contract as to trains going over connecting lines, it is the duty of the carrier to carry safely to the end of its line, and there deliver to the next carrier in the route beyond, and by so doing the carrier is discharged. Hutch. Carr. § 149. Our own Court has held it well settled that in such ease—
“ The obligation of the first or any preceding carrier is discharged when he has safely delivered the goods to the next succeeding carrier to whom such delivery is required in order to complete the transportation, without he is bound to carry to destination.” Railway Co. v. McKenzie, 43 Mich. 609.
There is no claim that there was any treaty for through
carriage other than what appears in the papers. The plaintiff knew that the goods could not be carried over the defendant’s road to the end of the route, but that it was necessary that they should be carried over other roads to reach the place of destination after leaving the defendant’s road. It had shipped goods to St. Louis more or less for two years previous, and knew how the carriage was made to that city.
The contract made does not show that any through freight rate was agreed upon, nor is there anything peculiar in the receipt given by the defendant, except that the word “ La Otto” does not appear in the blank after the word “at.” If this clerical omission had not occurred, I hardly think any one would have regarded the contract as one for through carriage, and this omission should not be held to change materially the character or extent of the liabilities of the parties under their agreement, and the receipt should be read as containing the name “ La Otto” in the blank.
This I have no doubt was strictly in accordance with the intention of the parties at the time the goods were shipped, and, if so, that construction should be given by this Court. This construction of the contract of the parties relieves us from the consideration of the second question.
The third question is of more importance. It is not contended but that the property was safely carried and delivered to the connecting carrier in good condition, and within a reasonable time, but it is claimed that it was the duty of the company receiving the goods for carriage to the point of destination not to deliver the same except upon the bill of lading; and if the defendant could be held responsible for the delivery made after the goods left its possession, I should have no doubt of its liability; but, as we have said, its contract of carriage extended no further than La Otto, and if it did its duty in making delivery of the goods, with the proper information regarding their further shipment, to the Wabash Company it certainly cannot be held liable. The delivery of tbe goods being properly made, was the necessary information conveyed to the Wabash road that, at the point of destination, they could only be delivered on the presentation of the bill of lading by the consignee? This question is answered from the record, which shows that the manifest or transfer bill which was furnished to the connecting carrier contained the proper information upon that subject at the time the defendant delivered the goods. If there was any other duty resting upon the defendant to perform, to discharge its obligation and liability to the plaintiff, I have failed to discover what it is.
Several errors were assigned upon the admissibility of testimony, which would have been available had the theory of plaintiff’s counsel prevailed, but become unimportant in the view taken of the contract of shipment.
I think the judgment of the superior court of Grand Rapids should be affirmed.
The other Justices concurred. | [
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Chajiplin, J.
At the recent session of the Legislature an act was passed entitled—
“An. act to revise f An act to revise an act to incorporate the city of Bay City,’ approved March 30, 1881, as amended and revised by the several acts amendatory and revisionary thereof, and to add twenty-three new sections thereto, to stand as sections 149 to 171, inclusive, and to repeal sections 90 and J 01 of said act.’ ’
This act was approved April 16, 1887, and took immediate ' effect.
Section 161 reads as follows:
“ The police court shall have exclusive and original jurisdiction to hear, try, and determine all criminal cases wherein the crime, misdemeanor, or offense charged shall have been committed within the corporate limits of the city of Bay City,” etc.
The respondent was prosecuted for selling liquor in Bay City on the eleventh day of April, 1887, without having paid the tax therefor as provided in Act No. 156, Laws of 1881.
Complaint was made, and a warrant was issued by a justice of the peace of the city of Bay City and county of Bay, on the twelfth day of April, 1887, and respondent was arrested and brought before said justice. He was arraigned, and pleaded not guilty, and the cause was thereupon adjourned to the tenth day of May following. On the adjourned day respondent moved to be discharged, on the ground that the court had no jurisdiction, which motion was overruled, a trial had, and respondent convicted. He took a certiorari to the circuit court, where the conviction was affirmed. Thereupon he sued out his writ of error to this Court.
The errors assigned are as follows :
“1. The circuit judge, on the hearing of said cause, erred in deciding, as did the justice of the peace on the trial before him (the said justice) of said cause, that he (the said justice) had jurisdiction to hear, try, and determine the said cause, there being then and there existing a police court having, by law, exclusive jurisdiction to hear, try, and determine all criminal eases wherein the crime, misdemeanor, or offense is charged to have been committed within the territory in which the offense in this cause is claimed to have been committed, namely, in the city of Bay City, Michigan.
“2. The circuit judge, on the hearing of said cause, erred in deciding to affirm the judgment of the justice of the peace before whom said cause was-tried.
“3. The circuit judge, on the hearing of said cause, erred in deciding that the justice of the peace before whom the said cause was tried committed no error in overruling the motion of defendant to dismiss the proceedings in said cause, and discharge this defendant, for the reason that he (the said justice) had no jurisdiction by law to hear, try, and determine the said cause.”
The claim is made that this amendment to the charter of Bay City by implication repeals or takes away the jurisdiction theretofore conferred upon justices of the peace in criminal matters, and affects not only those offenses which may be committed in the future, but applies to offenses committed before the act took effect, which were cognizable before justices of the peace, and upon which the jurisdiction of the justice had attached by proper complaint and arrest. We do not think such was the intention of the Legislature. Properly construed, the act applies to those offenses which shall be cpmmitted after the act takes effect, and leaves those which had been committed before to be heard, tried, and determined before justices of the peace. This construction harmonizes the act amending the charter with the general law in force at the time of its passage.
It 'is claimed, in behalf of the people, that the act is unconstitutional for two reasons:
First. That it conflicts with that provision of the Constitution which declares that no law shall embrace more than one object, which shall be expressed in its title.
It is urged that the object of a city charter is to provide for the government of the city, but this act seeks to control the affairs of the county and State as well; that the government of the municipality, and the administration of the criminal laws of the State, are separate objects of legislation, and should be considered separately.
The Constitution, however, declares that municipal courts of civil and criminal j urisdiction may be established by the Legislature in cities. The establishment of municipal courts is therefore germane to the subject of acts which provide for the incorporation of cities, and equally so to acts revising the charters of such cities. Attorney General v. Amos, 60 Mich. 372; People v. Hvrst, 41 Id. 328.
The second constitutional question raised is the attempt by this act to deprive justices of the peace of all criminal jurisdiction, by making that of the police justice exclusive. We shall not, upon this record, decide this question, as it does not properly arise.
As we intimate 1 in the case of People v. Kent Circuit Judge, 37 Mich. 474, there are certain jurisdictional powers conferred by the Constitution upon justices of the peace which are beyond the reach of legislative power to destroy; yet, as the qui sfcion is not presented by this record, and is not necessary to a decision of the question involved, we shall not discuss them now.
There are several important constitutional questions bearing upon the authority of the Legislature to constitute a police court, and provide for its organization and powers in the manner provided for by this charter, and the extent to which the general criminal laws of the State can be varied; but on this record we cannot decide all these questions. We agree with counsel that an early decision is desirable, and we shall be ready, upon an application by mandamus, or in any other proper way, to dispose of them as soon as brought before us in a tangible shape, and to facilitate their presentation as far as practicable.
The judgment of the circuit court is affirmed, and the court is advised to order the judgment to be carried into execution.
The other Justices concurred.
Act No. 435, Local Acts of 1887. | [
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] |
Champlin, J.
This is a proceeding in chancery to foreclose a mortgage executed by defendants Edwin W. Elliott and Amanda H. Elliott, of date July 16, 1873, to secure the payment of 86,529.12, in five equal annual installments of 81,305.82, evidenced by five notes bearing that date, payable in one, two, three, four, and five years.
The premises covered by the mortgage were situated in the village of Sturgis, St. Joseph county, Michigan, upon which was a hotel.
The mortgage contained no stipulation or agreement requiring the mortgagor to insure for the mortgagee’s benefit.
On the twenty-seventh day of September, 1873, the St. Joseph County Village Eire Insurance Company issued and delivered to E. W. Pendleton, mortgagee, a policy of insurance on the mortgage interest of the mortgagee in the hotel building for 82,000. The hotel was totally consumed by fire on the nineteenth day of March, 1876, and the insurance company paid the 82,000 to the mortgagee.
The policy contained no provision that, in case of loss and payment of the insurance, the company should be entitled to subrogation.
The question in dispute is whether the mortgagor is entitled' to have the insurance money applied in reduction of the mortgage debt. The right of the insurance company to be subrogated to the rights of the mortgagee does not arise in this suit, except so far as the question may be involved in the dispute between the parties to the mortgage. It was conceded upon the argument that the insurance company has as yet made no claim to be subrogated.
The law is well settled that if the mortgagee obtain insurance on his own account, and the premium is not paid by or charged to the mortgagor, he cannot claim the benefit of a payment of the insurance. Insurance Co. v. Woodbury, 45 Me. 447; White v. Brown, 2 Cush. 412; Stinchfield v. Milliken, 71 Me. 567.
If, however, the policy contains no stipulation for subrogation in case of payment to the mortgagee, and there is any arrangement between the mortgagor and mortgagee, either verbal or written, by which the mortgagor becomes liable to pay for the insurance, he is entitled to the benefit thereof, and to have it applied in liquidation of the mortgage debt pro tanto; and his right in this respect does not depend upon the fact that he has paid for the insurance, nor whether the mortgagee procured the insurance intending to look to the mortgagor for reimbursement of the premium, but it depends upon whether he is liable to the mortgagee therefor under any agreement, express or implied. And in such case, if the insurer receives the premium knowing it is paid by the mortgagor, or for him, he will not, in the absence of a stipulation therefor in the policy, be entitled to be substituted to the rights of the mortgagee against the mortgagor. Kernochan v. Insurance Co., 17 N. Y. 428, 441; Cone v. Insurance Co., 60 Id. 619, 624.
The mortgagor, Elliott, claims that he procured the insurance upon the mortgagee’s interest, and paid the premiums thereon. On the contrary, the complainant claims that he procured such insurance for his own benefit, and without any agreement whatever between himself and Elliott that it should be obtained. Both of these parties were examined as witnesses, and their testimony is as conflicting as it well could be, and both are more or less corroborated by facts and circumstances, which makes it extremely difficult to arrive at a very satisfactory solution of the case.
Mr. Elliott testifies positively that he obtained the insur anee in question, or applied for it, for Mr. Pendleton’s benefit, and paid assessments upon it; that he transacted the business with J. Eastman Johnson, who was an officer of the company. Mr. Johnson, however, denies that he made application to or procured the insurance from him; and Mr. Charles Cooper, who was at the time agent of the insurance company for St. Joseph county, testified that Elliott applied to him for insurance upon the hotel, aúd he declined to take the risk, — did not want to carry any risk on it.
Mr. Pendleton testifies that he made the application and procured the insurance for his own benefit without Mr. Elliott’s knowledge, and the original application was produced in evidence from the office of the insurance company, and it appears to be and is in Mr. Pendleton’s handwriting, and signed by him; that Charles Cooper acted for the company in taking the application; that it was done at the Exchange Hotel, and no one was present but Cooper and himself. Mr. Cooper, however, testifies that he has no recollection of having received the application from Mr. Pendleton.
At the time this application was made John C. Joss was secretary of the company. He died in 1879, two years before this suit was commenced. The office filing indorsed upon the application is in the handwriting of Mr. Joss, and is as follows:
"St. Joseph County Tillage Fire Insurance Company.
“ Application.
“ E. W. Pendleton, P. O. Sturgis.
“ September 27, 1873.
Class 9, $2,000.
“Assessments
"To be paid by E. W. Elliott, Sturgis.
“ Premium
“Chas. Coo per,_
“ Agent.”
The only fact of significance in the indorsement is that the assessments were to be paid by E. W. Elliott. Mr. Pendleton testifies that he gave no such instruction to the officers or agents of the insurance company, and that the indorsement was placed upon his application without his knowledge or consent. Mr. Cooper testifies that he has no knowledge and does not know how or by whose direction the indorsement “Assessments to be paid by E. W. Elliott” came upon the application. Its existence there is an important fact; for if placed there by direction either of the mortgagee or mortgagor, and assented to by the company, it not only precluded the company from insisting on subrogation, but it was evidence that the insurance was intended for the mortgagee’s benefit, and of an agreement that the mortgagor should pay the assessments, and, under the law, the insurance in case of loss would have to be applied by the mortgagee in reduction of the mortgage debt.
Now, if Mr. Pendleton, although he made and presented the application to the agent, gave no such information to the agent or officers of the company, it follows that Mr. Elliott must have done so. If he did not, it is very singular and unaccountable how such indorsement came to be made. A strong inference arises from this fact that some agreement must have been entered into by which Elliott was to pay the assessments.
The books of the company show, and the parties have stipulated, that assessments were paid upon the policy as follows:
March assessment, 1874, paid by E. W. Pendleton..... $7 95
October assessment, 1874, paid by E. W. Elliott....... 24 06
April assessment, 1875, paid by E. W. Elliott.......... 7 68
November assessment, 1875, paid by E. W. Pendleton 3 00
March assessment, 1876, paid by E. W. Pendleton____21 53
Thus it appears that, of the total assessments paid, Elliott paid $3L.74, and Pendleton $32.48. Mr. Pendleton explains the payments of assessments by Mr. Elliott as follows:
“ When the first note became due, that would be about July 16, 1874, Mr. Elliott said that he was unable to meet the note, and asked for an extension. The note was partly paid. He said that, owing to some old matters coming up from La Grange that Mr.. Ellison had, he was unable to pay it, and wanted further time. I told him that as money was worth 10 per cent., and that these notes were only drawing 7, and no interest due until the notes became due, I could not afford to give him further time; and also that I had been to the expense of getting my mortgage interest insured. He asked me, ‘ Have you got your mortgage insured?’ and I bold him I had. He asked me in what company. I told him in the St. Joseph County Village Eire Insurance Co. He said that was strange; the company had refused to give him a policy upon the building; and he then asked me how much it cost. I told him I did not know; it depended upon the losses the company sustained, and they made their assessments accordingly. He said that ‘ if you will not crowd me, ■and give me more time, I will pay your assessments for you until I can pay you.’ I said, ‘Very well, but you must pay it as soon as you can.’ I think he paid the two next assessments, — the ones of the fall of ’74, in October and April, ’’75.
“When the next note became due, which was about July 16, ’75, he was considerably behind; I think somewhere about the amount of the second note. He said he had not got the money, but he would not pay any more assessments; that one of them was a heavy assessment. I asked him what he would do; I could not afford to let it stand in that shape at that rate of interest. He said he would pay 10 per cent, on all payments, and the interest of the same after they became due. I said then we might as well put it upon the papers, and he said, ‘ Well,’ and I wrote out the statement on the back of the mortgage, and he signed it, and he paid no assessments after that.’ ’
He also testified that he received the notices of assessments directed to himself through the mail.
Mr. Elliott was afterwards recalled, and further examined? but his attention was not called to the above testimony of Mr. Pendleton; neither did he deny it in express terms.. He testified, however, that he paid all the assessments except the last, but is uncertain to whom he paid them, but thinks to Mr. Cummings, the collecting agent of the company. Mr. Cummings was dead at the time he gave his testimony.
The next testimony in order of time bearing upon the ques tion is that of J. Eastman Johnson, who went to Sturgis to investigate the loss immediately after the fire. He swore both Mr. Elliott and Mr. Pendleton, and made written memoranda of their statements. His memoranda, which were introduced in evidence, show that Mr. Elliott at that time stated to Mr. Johnson that he had $2,000 insurance in the Home Insurance Company of New York, and $1,000 on the furniture, and that all his policies were for his own benefit, and that he held none for Mr. Pendleton’s benefit. It is claimed that this-statement shows that Elliott at that time did not make any claim to the insurance held by Pendleton; but I do not think any such inference follows. Pendleton was present and was-sworn at the same time, and the examination was being made for the purpose of adjusting the loss under Pendleton’s policy. The statement of Mr. Elliott was directed to the policies which he held, and these he stated he held for his own benefit.
Mr. Johnson testifies that afterwards, and during the settlement of the loss, he had a conversation with Mr. Pendleton, in which he told Mr. Pendleton that the money should be applied as he thought upon the' Elliott mortgage, the payment of which was partly secured by that policy. Mr. Johnson says that was the substance of his part of the conversation ; that he might not have used those identical words; that Mr. Pendleton replied he thought he should so apply it; this was the substance of the conversation; that Mr. Pendleton also stated that he had other claims against Mr. Elliott.
This-item of testimony has a bearing upon the right of the company to be subrogated to the mortgagee’s interest. Mr. Johnson was president of the company when the application was made, and it already appears that the company understood that the insurance was for Mr. Elliott’s benefit. Mr. Johnson was secretary of the company when adjusting this loss, and his testimony shows how the company understood the matter; that the mortgage was partly secured by that policy. Mr. Pendleton asserted no claim that it was not-so secured, but said he thought he should so apply it.
The money was paid by the insurance company in installments, and when the company had raised between twelve and fifteen hundred dollars it desired to hand it over to Mr. Pendleton as partial payment. Mr. Elliott testifies that Mr. Cummings came with the money, and he and witness went and hunted Mr. Pendleton up; that Cummings asked him to receive the money, and indorse it on the mortgage; that Pendleton said that he could not use that amount then, as he had no place to use it until he got the whole of it; that he said when he got the whole of it he would indorse it on; that the money was then paid into the bank for Mr. Pendleton's credit. This statement is denied by Mr. Pendleton.
It appears without dispute that Mr. Elliott desired to rebuild the hotel. He says he called on Mr. Pendleton, and requested him to loan him the money to rebuild with, and he told him that he could not let him have it. Mr. Pendleton testifies that Mr. Elliott asked him if he would not let him have the $2,000 insurance money to assist him in rebuilding, and he told him he could not; that he told him if he would reduce the mortgage to $3,000 he would extend the time of payment of that amount for five years, or a portion of it, that is, it was all to be paid in the course of five years, and upon that they made such an agreement, which was put in writing, and, as he understood it, was recorded; that Mr. Elliott at that time paid him $862.69, being the balance due upon the second note, which had matured the July previous.
The agreement entered into at that time was as follows:
“ Whereas, the Exchange Hotel, in the village of Sturgis, having been destroyed by fire, and there being due and to become due to Edward TV". Pendleton, upon his mortgage upon said property, from El win TV. Elliott, and the said property being insufficient to secure said sum of $5,526.61, the amount now remaining unpaid upon said mortgage, the said Elliott agrees to pay this day the balance due upon the third installment of said mortgage, viz., $862.69, and to rebuild said hotel with brick.
££ In consideration thereof said Pendleton agrees to loan upon said property to said Elliott the sum of $3,000 of the unpaid installment of said mortgage, and, if said mortgage should be less than $3,000, then the same to be made up to that amount in money; said loan to be for the term of five years, with annual interest at ten per cent.; said installments that shall not be due when this agreement shall be consummated to be discounted so as to make them worth ten per cent, at the time of such loan.
“ Said Elliott agrees to proceed to build said hotel within six months from this date.
“E. W. Elliott.
E. W. Pendleton.
“ Dated April 7,’76.
££ State oe Michigan, } St. Joseph County, [ s ‘
“I, Nicholas Hill, register of deeds in and for said county, do hereby certify that I have compared the copy of £ Copy of Contract ’ to which this is attached with the record of the original instrument, which said original is now of record in my office, and find the same to be a true copy of such record, and of the whole thereof. Said copy of contract was received for record on the nineteenth day of February, A. D. 1878, at 2 o’clock E. h., and was recorded in volume 2 of Miscellaneous Records, on page 226.
££ Witness my hand at Centreville, in said county, [seal] this eleventh day of July, A. D. 1885.
££ Nicholas Hill,
££ Register.”
At the time this agreement was made the insurance money had not been received by Mr. Pendleton. He afterwards received, ahd gave receipts therefor to the company, as follows: April 25, 1876, $1,435; June 2, 1876, $165; July 11, 1876, $160; August 25, 1876, $100; February 10, 1877, $160; total, $2,020, — the twenty dollars being interest on the deferred payments.
The testimony of Mr. Elliott and of Mr. Pendleton conflicts with reference to the manner in which the mortgage debt was to be reduced to 83,000, as specified in the above agreement of April 7, 1876. Mr. Elliott says that the insur ■anee money when received was to be applied upon the mortgage, and that, if by such application the mortgage should ■be reduced below $3,000, he was to have sufficient money from Mr. Pendleton to make the mortgage up to $3,000. Mr. Pendleton says that the insurance money was not to be ■applied, and says that Elliott was to reduce the mortgage by payment, which he has never done. Both agree that the -$862.69 was paid on that day, and it appears that Mr. Elliott went on and rebuilt the hotel with brick as specified in the -agreement. I think Mr. Elliott’s statement concerning the way the mortgage was to be reduced, to $3,000 is the correct version of the affair It is supported by the peculiar language of the instrument. The mortgage was to be continued on the premises, “ and, if said mortgage should be less -than three thousand dollars, then the same to be made up to that amount in money.” The words would be meaningless unless there was some amount to be applied on the mortgage -which in the contemplation of the parties might reduce it below $3,000. If Elliott was to pay so as to reduce it to $3,000, such language would have been unnecessary. Pendleton makes no satisfactory explanation of this clause of the •contract, and my conclusion is that it referred to the insurance money, and, if it did, it also follows that the parties understood from the beginning, taken in connection with the fact ■of the indorsement upon the application, and the payment by Elliott of part at least of the assessments, and the manifest understanding of the insurance company, that the insurance was for Mr. Elliott’s benefit.'
After the hotel was rebuilt, and on the thirteenth of April, 1878, Elliott conveyed the premises in question to Charles B. Buck, one of the defendants. Mr. Buck testifies that, previous to his purchase, Mr. Pendleton, Mr. Elliott, Benjamin Buck, and himself met in the office of' Mr. Flanders, to see what was going to Mr. Pendleton, — to see what there was going to him, — so they could tell how much the balance was that Mr. Elliott owed him. Mr. Pendleton had his paper» there, and Mr. Flanders and Mr. Pendleton both figured the' mortgage, and made the balance coming to Mr. Pendleton, as near as he could remember, about $3,200. He states there was no controversy at that time between the parties as to the amount due on the mortgage. The deed he received from Elliott contained the usual covenants of warranty, and it covenants against incumbrances, except mortgages of $8,000. These he says were the mortgage to Pendleton for $3,000, one to Burch of $4,000, and one to Wait of $1,000. Benjamin Buck corroborates C. B. Buck as to the meeting in Flander’s office; says he can’t recollect the exact amount they found due on the mortgage, but it was about $3,000. He is also corroborated by Mr. Elliott. Charles B. Buck purchased the property subject to Mr. Pendleton’s mortgage, and afterwards made payments to Mr. Pendleton thereon as follows: November 4,1878, $300; April 26,1879, $700; September 20, 1879, the amount of a board bill, $90;. and on December 14, 1881, he tendered to Mr. Pendleton $2,778, which he claims was the balance due Mr. Pendleton, upon the mortgage.
Mr. Pendleton received the money tendered, but insisted that it did not pay the mortgage in full, and afterwards filed this bill to foreclose the mortgage for the balance which he claims to be due him thereon. It is conceded by the parties-that, if the insurance money was applied towards the payment of the mortgage debt, the money tendered was sufficient to extinguish the mortgage.
The conclusion at which I have arrived is, after duly considering all the testimony, that the insurance of Mr. Pendleton’s mortgage interest was for the benefit of the mortgagor, and was effected with the understanding that the mortgagor should pay the assessments therefor, and was liable to the mortgagee for the assessments he has paid therefor. Starting from the memorandum indorsed upon the application, and following down through the whole course of the dealings between these parties, their actions are consistent with this fact, and inconsistent with the fact that the insurance was obtained by Mr. Pendleton for his sole and exclusive benefit. This conclusion reached, the question whether the tender was properly' made or not is of no consequence. The payment made discharged the lien of the mortgage, and it only remains for Mr. Pendleton to execute the formal discharge-
The decree of the circuit court is affirmed, with costs.
Sherwood and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
Sherwood, J.
This case was before us on demurrer to complainant’s bill at the June term last year. Fender v. Powers, 62 Mich. 324. The demurrer was overruled. Since then the defendant has answered the bill. Proofs have been taken, and the cause heard on the pleadings and proofs before Judge Hooker, at the Barry circuit, and a decree rendered in favor of the complainant. The defendant appeals.
The bill is filed for the purpose of quieting the title to 40 acres of land in the county of Barry; and alleges, in substance, that in 1868 William B. Sherman became the owner of the property, and died seized of the same before January, 1873, leaving two minor children, Fanny M. and Robert P. Sherman, and Eunice Sherman, his widow, his only heirs at law.
That Eunice was appointed guardian of the minor children, and on the first day of September, 1873, as such guardian, under a license granted to her for that purpose by the probate court for the county of Eaton, in which county William B. Sherman lived and died, she sold the land in question at public sale to one Gilson, for the sum of $400; that said sale was made in good faith and for a fair consideration; that the proceedings to sale and the sale were regular in all respects, except that no sale-bond was required; that before January 1, 1885, said minors became of age, and received of their guardian the proceeds of said sale, with the income thereof, and were entirely satisfied; that in 1881 the complainant became the purchaser of said land at the consideration of $1,200, and has since been in the quiet and peaceable possession of the same; that said Gilson, while he' owned it, was in the peaceable possession of the property, and made valuable and permanent improvements thereon, and that at the time of filing the bill it was worth $1,500.
The bill further avers that Walter S. Powers, who is a brother of the defendant, on the twenty-third day of April, 1885, applied to Robert and Fanny, and asked them to deed to him a certain parcel of land in Nashville, Michigan, and which was once the property of Fanny and Eobert, to which request they assented; that in drafting the deed Powers inserted the name of his brother, the defendant, as grantee, and included therein, with the intent to cheat and defraud the complainant out of his property, the description of the land in question; that the grantors did not intend to convey the complainant’s land, and, upon learning the imposition that had been practiced upon them, they disclaimed any such conveyance, and on July 13, 1885, made a conveyance to the complainant of any interest they had, either legal or •equitable. The bill further avers that the deed thus obtained by Powers was without the complainant’s consent or knowledge, and without consideration; that it is fraudulent, and a cloud upon his title; and prays it may be delivered up and canceled.
The answer—
“Admits the title to the land down to William B. Sherman, Sherman’s death, heirship of his estate, and appointment of Eunice Sherman as guardian as alleged in said bill.
“It denies that the guardian’s sale to Gilson was regular, and alleges it was void by reason of—
“ 1. Defective petition for license to sell.
“3. Guardian did not take and subscribe oath before sale.
“ 3. Guardian did not give bond before sale.
“4. No report of sale was ever made by guardian to probate court.
—“ By reason of which the court had no jurisdiction.
“It denies that the land has been enhanced in value by improvements..
“It denies that the minors were ever satisfied With the sale; also all fraud on part of W. S. Powers; and alleges that the land was bought in good faith, for a valuable consideration, paid to Eobert and Fanny Sherman.”
The testimony in the case was taken in open court before Judge Hooker, and all the parties interested were sworn and testified at length.
We have examined that testimony with care. Upon several subjects much of it is contradictory and conflicting, and not as satisfactory as we would wish. The learned circuit judge, however, saw all the witnesses, and heard the testimony as they delivered it upon the stand. These circumstances placed him in, a position which gave him the greatest advantage in determining the credibility of the witnesses and their testimony, and, upon the question of fraud, alleged in the complainant’s bill, the finding is against the defendant, and we see no occasion for questioning the correctness of that finding.
We have also reviewed the record and briefs of counsel upon the question of the validity of the probate proceedings, which are the foundation of the complainant’s title, and have been unable to discover any such irregularities therein as invalidate the title of the complainant to the property in question.
The decree will therefore be affirmed.
Ohamplin and Morse, JJ., concurred.
Campbell, O. J., did not sit. | [
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] |
Sherwood, J.
The bill in this case was filed to enjoin the collection of a special assessment made by the city of Saginaw to defray the expenses of the construction of a tile sewer on Adams street, between Washington and Hamilton streets, to the west side of Bond street.
The following are the principal grounds set up in the bill upon which the complainants ask relief:
“1. That bidders for the contract for the construction of the said sewer were required to procure their tile of a particular firm in Rochester, New York, in violation of the spirit of an ordinance of said city.
“2. That the charter of said city does not limit the assessment to the amount of benefits conferred by the improvement.
“3. That a previous assessment to defray the cost of constructing this same sewer had been made, where only one-half the cost of the sewer was assessed to property-owners, and after bill was filed by complainants to restrain same it was abandoned; that, by the terms of the charter in force when the sewer was constructed, the council had discretion to apportion such share of the expense of constructing same as seemed just, and the council did fix one-half the expense as the proper amount to be specially assessed on the property; that by the terms of the new charter two-thirds the cost must be assessed on the property.
“ 4. That there is nothing in any of the proceedings which shows upon what basis the tax is assessed.
“ 5. That prior to the construction of this sewer it had been customary to assess the whole block each side of a sewer for its construction, and all of the lands of the complainants had been assessed to construct sewers on adjoining streets, but by this assessment only half blocks each side were assessed.
“ 6. That the common council has never determined the taxing district as required by charter, but assumed to delegate that duty to the controller.
“ 7. That the charter does not limit the taxation to the amounts of benefits received.
"8. That two-thirds the property assessed does not adjoin Adams street, yet it is assessed just as much as the land that does so adjoin.
“ 9. That defendants insist said tax is legal and valid, and a lien on the land, and threaten to sell the same.”
There was no appearance by the Auditor General, and the bill was taken as confessed as to him. The other defendant, the city of Saginaw, appeared, and filed an answer, admitting the first and second assessment, and that the first assessment was abandoned. The answer denies all other averments set up in said bill, and avers that the tax was lawfully assessed in all respects, and is a valid lien on said lots. The facts were all agreed upon, and fully appear in the record.
The proceedings are claimed to be void for the following reasons, by counsel in this Court:
“ 1. Because such assessment is not limited to benefits conferred.
“2. Because the charter requires two-thirds paid by property without reference to increase of value caused by the. improvement.
‘£3. Because bidders were required to make the sewer of tile purchased from one certain firm.
“ 4. Because complainants are required to pay two-thirds the cost, while others have had to pay only half the expense.
££5. Because there is nothing in the proceedings to show the assessment was limited to benefits.
££ 6. Because there is nothing which shows on what basis the assessment is made.
££ 7. Because no judgment was exercised in making such assessment.
££ 8. B. cause while complainants’ lands have been taxed to make sewers on other streets, lands of those streets have not been taxed for this sewer.
“ 9. Because the common council has assumed to delegate to the controller matters left alone to its discretion.
“ 10. Because land remote from the sewer is assessed for more than it is benefited.
££11. Because land remote, and not adjoining the sewer, is assessed the same amount as land adjoining.”
It will not be necessary to consider all the points made by counsel in this case. It is one of those special assessments made by a municipal corporation which require and must be based upon legislative enactment. The authority claimed as authorizing these proceedings is contained in the charter of the city of Saginaw.
Section 1 of this charter gives the common council of the city power to make local improvements, and authorizes the construction of sewers, one-third of the expense thereof to be paid by the city out of the highway fund, and the remaining two-thirds to be—
££ Assessed upon and against such lots, blocks, and premises as in the opinion of the common council are benefited thereby, and against the owners or occupants thereof, in proportion to the extent that such lots, blocks, and premises, in the opinion of the common council, are respectively benefited by such improvement.”
Section 2 provides that, whenever the common council shall determine that it is necessary to construct a sewer, they shall cause detailed plans and specifications to be made of the work to be done, etc., and filed in the office of the controller for inspection. The controller is then to advertise for bids under the direction of the council, and when the bids are received the council is required to let the work to the lowest bidder.
Section 4 is as follows:
“ As soon as practicable after making any such contract, the common council shall direct the controller to make out and report to the common council for consideration a special assessment upon and against the lots, blocks, and premises in his opinon benefited by such improvement, and against the o.wners or occupants thereof, so far as the same may be known, and when any lots, blocks, and premises are unoccupied, and the owners thereof are unknown, they shall be assessed as non-resident.”
Section 5 provides that, when such special assessment roll is presented to the council, a day for review shall be fixed, and notice thereof given in some newspaper in the city.
Section 6 requires the common council to examine the roll and take the same in consideration, and they may change or confirm it, and when so confirmed it shall be conclusively deemed an assessment by the common council, and the several amounts assessed against the several lots shall be a personal charge against the owners or occupants, and a lien upon the property assessed, from the time of confirmation.
Section 7 provides for a warrant to be directed to the treasurer of the city, requiring him to make collection of the amounts.
The amounts assessed ranged from $20 to $234 each, and 48 different parties were assessed. The contract was let, and the work completed, and the city paid one-half'the price of construction.
It appears from the record that another and prior assessment roll was made out, and in which, by resolution of the council, the city was to pay half the expense of the sewer, and did so pay it; but the city was enjoined while making collections, and the old or first roll was abandoned, after which the one in question was made.
The following shows the action taken by the common council in regard to the first roll: June 21, 1881, the following action was taken in the common council:
“To the Honorable Common Council oe the City oe Saginaw,—
“Gentlemen: Your committee on sewers, to whom was referred the petition of Amasa Eust et al., relative to a sewer on Adams street, and the remonstrance relating thereto, report thereon, and recommend the adoption of the following resolution:
“ Resolved, that the street commissioner is hereby directed to advertise for sealed proposals for constructing a sewer on Adams street, from the west side of Bond street to a point on Adams street about midway between Washington street and Hamilton street, where said sewer is to be connected with a plank sewer, which runs from that point to the Saginaw river; said sewer to be constructed of twelve-inch vitrified tile, and the grade thereof to be under the direction of the city surveyor; the same to be completed within sixty days from the date of the confirmation of the letting, and one-half the expense thereof to be paid by special assessment on the property benefited thereby, and one-half out of the general highway fund, to be levied in 1881. *
“Thos. Doyle,
“ E. T. ThroOp,
“J. H. Benjamin,
“ Committee.”
July 5, 1881, the council proceeded in this matter as follows :
“ Whereas, the street commissioner has reported to this council that, as dircted by the council, he advertised for, and on the the fifth day of July 1881, he received, sealed proposals for. constructing a twelve-inch vitrified tile sewer on Adams street, from the west side of Bond street to a point on Adams street about midway between "Washington street and Hamilton street, where said sewer is to be connected with a plank sewer, which runs from that point to the Saginaw river; and that Chas. Stoltow & Remer are the lowest bidders therefor.
“ Therefore resolved, that the said work be, and the same is hereby, let to Chas. Stoltow & Remer at their bid aforesaid, and in conformity to the specifications and plans on file in the controller’s office; and the controller is hereby directed to make out and report to this council an assessment against the owners and occupants on the adjacent half blocks on each side of Adams street, to defray one-half the expense of said work.”
Subsequently the following resolution was adopted:
“ Whereas, the controller has reported to this council an assessment roll for the assessment of a special tax for constructing of a sewer on Adams street, from Bond street to a point midway between Washington and Hamilton streets, and the same having been taken into consideration.
“ Therefore resolved, that the common council approve of said assessment roll, and the lots and premises described in said roll as benefited by such work or improvement are, in the opinion of said common council, actually benefited thereby; and that said council receive as corrjct the description of the lots and premises, and the names of the owners or occupants therein contained; and that the sum stated in said assessment roll, which each such owner or occupant should be assessed and pay, be assessed and collected from such owner or occupant according to law.”
The roll was numbered 208; was only partly collected when the city was enjoined from collecting further; and the assessment was abandoned as illegal, and the subject was not again taken up until February 6, 1884, when the following was adopted:
“ Resolved, that, in the opinion of the common council, special assessment roll No. 208, to defray the expense of constructing a twelve-inch tile sewer on Adams street, from Bond street to a point mid-way between Washington street and Hamilton street, approved by the common council August 19, 1881, by a resolution adopted on that day, and which has not been wholly collected, is invalid, for the reason that such assessment was not _ made in compliance with the law then in force relative to special assessments; and that, therefore, said specia assessment be, and the same is hereby, vacated and set aside by the common council.”
Also at the -same meeting the following resolution was adopted:
“ Whereas, special assessment roll No. 208, for constructing a tile sewer on Adams street, from Bond street to a point about midway between Washington street and Hamilton street, and which has not been wholly collected, has been vacated and set aside by the common council.
“ Therefore resolved, that a new assessment be, and the same is hereby, ordered to be made, to defray the cost of said improvement, and the cost of the labor and materials furnished therefor, and the controller be, and he is hereby, directed to make out and report to the common council for consideration a special reassessment upon and against the lots, blocks, and premises in his opinion benefited by such improvement, and against the owners and occupants thereof, so far as the same may be known, as provided in section 4 of title 3 of the charter; and any sums paid on the assessment so vacated shall be credited on such reassessment to the property upon which the same was paid; and assessments upon property upon which the assessments were paid in full on the roll so vacated shall be marked ‘ Paid ’ upon such assessment roll by the controller before the same is delivered to the treasurer for collection.”
At a subsequent meeting, the council adopted the following preamble and resolution:
“ Whereas, the common council did heretofore fix the sixteenth day of April, 1884, at 8 o’clock r. m., at the common council room in this city, as the time and place to examine and take into consideration special assessment roll No. 248, to defray the cost of constructing a twelve-inch tile sewer on Adams street, from Bond street to a point midway between Washington and Hamilton streets, and furnishing materials therefor; and the council having examined and considered said special assessment roll, and heard all persons interested therem who have claimed a hearing, and having made no change in said roll as reported.
“Therefore resolved, that said assessment roll as reported, in the opinion of the common council, will justly apportion the expense of said improvement equally upon the lots, blocks, and premises benefited thereby, in proportion to the benefit they will thereby respectively receive therefrom; and said assessment roll, as reported, is hereby adopted, ratified, and confirmed as and for an assessment by the common council to defray the cost and expense of said improvement, and of furnishing materials therefor.”
It was under this resolution that the city was attempting to enforce the taxes enjoined in this suit.
There is no doubt but that the Legislature may authorize local taxation for the construction of a sewer in a city, and that the common council may be charged with the duty of making the assessment and collecting such tax; but in so doing the right of the citizen to his property requires that the authority given for that purpose should be strictly pursued.
It is also well settled that in these local improvements the property benefited thereby may be assessed for the making of the improvement, when public necessity requires it, in proportion to the benefits received. Although, as an original proposition, this doctrine could never receive my assent, it is, however, now too generally accepted as correct to be changed.
The assessment cannot exceed the benefit to be derived from the improvement, ior the reason that the only principle upon which such special assessment can be made at all is that the value of the property is enhanced by the expenditure; and in authorizing the work, and the assessment therefor, the principles which underlie the law of eminent domain must be carefully guarded. We are not able to ascertain from the record whether these have been observed or not. It does not appear upon what basis the assessment for benefits was made. This should in some way be made to appear, as it is the right of every citizen assessed to know that the taxes he pays upon his property bear some reasonable proportion to those required of his neighbors for the same object.
Taxes should not be arbitrarily apportioned or assessed. They should be uniform. These local assessments are a species of taxation, and, while the principle underlying them Í3 somewhat different from that upon which general taxation for revenue is based, still it is the money of the citizen that the public demands; and whether in those cases the assess-^ ment is made on frontage, valuation, benefits, or by area, the burden should be equally borne by all upon whom it is imposed. Whether this rule has been observed in this case cannot be determined from this record.
There are other objections to the proceedings in the case, however, which must be regarded as fatal. The second section of the statute under which the proceedings were taken expressly requires that the necessity for the construction of the sewer in question shall first be determined by the common council of the city. In this case the record does not disclose that any such determination was ever made. They determined to make it, it is true, but it does not appear there was any necessity for it, and this lies at the foundation of the entire proceeding. The necessity must exist in every case, and must be found by the Legislature or the common council. The power to determine when a special assessment shall be made, and on what basis it shall be apportioned, is confided to the Legislature alone. It may determine the extent of territory which may be assessed for the improvement, and may direct that the whole or any part thereof may be assessed upon the property in that territory.
Under the statute the common council are to be the judges of what lots are to be benefited by the proposed improvement. In this case we have only the opinion of the controller as to the property benefited by the improvement.
Neither does it appear anywhere in the proceedings that the amounts assessed a«re no more than the value of the improvements. It does not appear from the record that any member of the common council ever saw the street the sewer was laid in, or any portion of the property which the controller says is benefited by the construction of the sewer. Neither does it appear the council took any testimony in regard to the benefit derived from the improvement. It is difficult to discover that the council did anything more than rely upon the opinion expressed by the controller as to the benefit of the sewer to the property assessed. Certainly a fair interpretation of the statute would require more of the council than this. They say they have examined the assessment roll presented to them by the controller, but they do not say they examined the property, or even knew its location, which the controller thought was benefited. The points raised, depending upon facts not appearing in the record, cannot be considered.
It will be discovered by the record that the first assessment was upon the basis that the property benefited should pay half the expense of construction. The city did pay its half, and several of the parties upon the roll paid their assessments in full, and then that assessment was declared invalid by the council, and the present assessment is ordered and made upo'n the basis that the property benefited should pay two-thirds of the expenses of the improvement, and that those who had paid the full amount of their assessment on the first roll should be exempt from further assessment. This could not be legally done, and an assessment which requires such discrimination between the properties of persons taxed cannot be sustained. It makes taxation unequal, and this is illegal under any system. The other points made by complainants’ counsel will not be discussed at this time.
The decree entered by the circuit judge must be affirmed.
Campbell, C. J., concurred with Sherwood, J.
Champlin, J. I concur in affirmance upon the point last stated.
Morse, J., concurred with Champlin, J.
Act No 227, Local Acts of 1883, title 3. | [
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] |
Sherwood, J.
Peter Partlin contracted with the plaintiff to cut, cure, and put into stack a certain quantity of hay at the agreed price of §15.
The defendant refused to pay the plaintiff for his work after he had finished his job, alleging as a reason that the work was so negligently done that the hay was nearly worthless.
The plaintiff was a farmer residing in the township of Greenfield, in the county of Wayne, and the defendant lived in Detroit. Failing to receive his pay, he sued the defendant therefor before a justice of the peace in the city. The suit was commenced on the sixteenth of August. On the return-day, which was the twenty-fourth of August, the plaintiff declared for work and labor done. The plea was the general issue, and, after a trial on the same day, the justice rendered judgment for the plaintiff for $15 damages, and $4.43 costs. The defendant appealed to the Wayne circuit on the thirty-first day of August, 1886.
On the twenty-fifth day of August, Partlin sued the plaintiff in an action on the case for damages, arising from imperfect work in caring for and saving the hay, before another justice in the city of Detroit. The plea in this case was the general issue. The cause was tried, and judgment rendered therein for the plaintiff, on the twenty-seventh day of September, 1886, for $20 damages, which judgment was paid by the defendant on the fourth day of October thereafter.
The said Partlin, believing said last-named judgment to be a bar to the suit on appeal against him, did, on the twenty-seventh day of November, 1886, file a plea in the said appealed cause puis darrein continuance, setting up said judgment as a bar to the plaintiff’s suit in this case.
The issue thus made up in the case came on for trial before Judge Jennison and a jury, and at the close of the testimony showing the foregoing facts the circuit judge held the judgment pleaded to be a bar, and directed a verdict for the defendant. The plaintiff brings error.
We think the ruling was erroneous. It is true, the defendant might have recouped the damages he recovered in his suit against Mimnaugh,-but he was not obliged to do so or lose his claim. In case a party neglects to set off a claim when he has an opportunity to do so, he does not thereby preclude himself from recovering his demand, but he will not be allowed any costs ih a suit to enforce such claim.
A cross-action has always been allowed, both at common law and under the statute, in cases where recoupment may be proper; and where the defendant refuses to recoup, and brings his action, he may do so, and will be allowed his costs if he prevails. How. Stat. §§ 6876, 6887, 6889; Huntoon v. Russell, 41 Mich. 316; Ward v. Fellers, 3 Id. 282; Platt v. Brand, 26 Id. 173; Ward v. Willson, 3 Id. 1; Chandler v. Childs, 42 Id. 128; Allen v. McKibbin, 5 Id. 449, 456; Ives v. Van Epps, 22 Wend. 155; Grant v. Button, 14 Johns. 377; Gillespie v. Torrance, 25 N. Y. 306; La Farge v. Halsey, 1 Bosw. 171.
The plaintiff is not estopped from prosecuting his suit by reason of his submitting to the judgment recovered against him, and his payment thereof. The claim he makes is not res judicata. It is true, the plaintiff’s suit arises out of the same transaction as did the defendants, but the damages arising are not of the same character. In one case they sound in tort, and the other in assumpsit.
The judgment must be reversed, and a new trial granted.
Oh ampian and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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Champlin, J.
The bill is filed in this case to rescind a contract for an exchange of land. The cause was heard in the court below upon pleadings and proofs, and the bill of complaint dismissed. Complainants appeal.
On August 7, 1885, and prior thereto, Peter C. Scadin was the owner of lot 130 of Leonard & Co.’s addition to the city of Grand Rapids, Michigan. There was a dwelling-house situated thereon, in which Scadin and his wife, Emily M., resided* It was their homestead, and of the value of $1,500, and unincumbered.
Shortly prior to the day last mentioned, defendant William E. Sherwood proposed to complainants to exchange for their homestead a farm which he claimed to own, being the east half of the north-east quarter of section 30, in township 9 north, range 8 west, being in the township of Eureka, Montcalm county, Michigan, and which he stated was subject to an incumbrance by way of mortgage of $1,300.
To induce complainants to consent to the bargain, which was made at Grand Eapids, defendant William E. Sherwood stated and represented that he owned in fee and had a good title to said land; that it was not incumbered except by the $1,300 mortgage, and was worth $2,800. On complainants’ request he furnished an abstract from the register of deeds of Montcalm county, and represented that it was a correct abstract of the title of said lands, and stated that it shpwed the condition of the title thereto, and that he got his title from Hudson J. Wakely. The abstract, so produced, upon its face appeared to corroborate the statements made by said defendant.
Complainants relied upon these representations as to title, and were induced thereby to make the exchange. They agreed upon an exchange of lands upon the terms that defendants should deed the farm subject to the mortgage, and pay complainants $200 in money, and complainants should deed the house and lot to the defendants; which was accordingly done, the deed of the farm running to Emily M. Scadin, and the city property was convoyed to William E. Sherwood, on the seventh day of August, 1885.
The testimony contained in the record before us proves that the foregoing representations as to title and value were false in all material particulars, and complainants have received substantially nothing for their house and lot. The land was not worth the amount of the mortgage. The abstract produced was a false abstract in fact.
There had been an execution sale of this land in favor of Alfred H. Heath, as purchaser, in a suit against Hudson J. Wakely, which sale was made the twelfth day of May, 1884, and redemption of which by Hudson J. Wakely, and all persons claiming under him, had expired. The abstract produced by defendant showed a sheriff’s certificate of sale, under an execution, by the sheriff of Montcalm county, to Hudson J. Wakely, on May 12, 1884, and recorded May 12, 1884; whereas it should have shown Alfred H. Heath as grantee, instead of Hudson J. Wakely. This is admitted by the answer, and is also fully proved.
But it is contended, and the proofs tend to show, that the error in the abstract was an unintentional mistake made by the register of deeds in preparing the abstract. But, if this be true, it does not relieve the transaction from fraud in fact, and the responsibility for the consequences of the error must rest upon the defendant, who by its use and aid has obtained the consummation of a bargain which he otherwise could not have obtained. The abstract contained a false statement, and the defendant has used and profited by it. It deceived the complainants, and induced them to part with the house and lot, on the reliance that they were obtaining land to which they would succeed to a clear title, subject only to the incumbrance mentioned. This was a substantial wrong, and operated to defraud them in the transaction. Heath now claims and asserts title to the land.
Defendants have introduced testimony which they claim shows that the execution sale is void, and that complainants can defeat the same in an action of ejectment, and that they must rely upon the covenants of warranty in their deed for their protection. We think complainants ought not to be compelled to litigate the title, whether it should turn out to be good or bad. They were entitled to have a marketable tide to the land in their own name at the time the bargain was closed. They did not bargain for a lawsuit, but for a clear title, anl, not having obtained one, are entitled to have the bargain rescinded upon repaying the $200, and tender ■of a quitclaim deed from complainants, and surrender of possession of the farm; and the defendants must be decreed to convey, free and clear of all incumbrances or liens done, •committed, or suffered by them, the city lot to complainants.
The decree of the circuit court is reversed, and the relief prayed for granted. A decree will be entered in accordance with this opinion. The complainants will recover the costs of both courts.
The other Justices concurred. | [
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Morse, J.
The plaintiff is a native of Sweden, and on the sixth day of June, 1884, the date he was injured, was about £6 years of age, He was employed by the defendant as a car-repairer, and' worked in such employment for it from five to six weeks before he was hurt. He was hired by one Matth ews, who was the boss carpenter of the defendant. Matthews directed him to report to John Carlson, who was foreman of a gang of ear-repairers. He was told that Carlson would show him what to do. He.bad never worked at car-repairing or any other labor about railroads before. He had been in this country less than two years, and understood but little o£ the English language.
Upon his reporting to Carlson, he was given a tool-box, and set to work repairing cars; putting in bolts, plates, and the like items of repair. He testifies that the only instructions or warning given him as to the danger of his occupation was that he should never go under the cars “ when the red flag was not on.”
The accident which occasioned the injury for which the plaintiff seeks to recover damages in this suit occurred in the lower yard of the defendant at -Escanaba, where aTe located the ore-docks, from which the iron ore mined near there is loaded into vessels. There were in this yard 10 tracks, all of which were used more or less as repair tracks. The method of doing business in the yard was substantially as follows: After the loaded cars had been run down from the docks, they were switched onto side tracks, and were then inspected by the repairers. The cars that were too much damaged to be repaired upon the tracks were marked “ B. 0.” (meaning bad order), and were removed to the shops before the train started out. The others needing repair were attended to while standing on the repair tracks.
These same tracks were also used for making up trains. The repair-men were furnished with red flags, one of which was to be placed at the head of the train looking towards the switch, and train-men were instructed in no case to run cars or engines against such cars, as the signal of the red flag so placed indicated that such cars were undergoing repair upon the track.
There were two repair yards; one called the upper, and the other the lower, yard. The foreman of both yards was Thomas Leith. In his absence John Carlson was boss of the lower yard.
On the day of the injury from 30 to 35 cars were run in from the ore-docks upon one of these tracks, known as track No. 4. They were backed in from the north, and had at their south and rear end a caboose. Peterson had been at work all day, commencing at 7 o’clock in the morning. The car-repairers, including plaintiff, about 3 o’clock in the afternoon had just completed repairing cars on a train standing upon another track, when Carlson said, “ Come on, boys,” and led the men to the cars on track No. 4. He said, “Boys, hurry up now; we have to leave in half an hour;” and put a red flag up on the front car of those then being on the track. The men went to work at once, and as fast as they could. Peterson finished his work on one car, and passed by Carlson, who was fixing a brake-beam on one of the cars, and went to work on another car. He was sitting on the ground under the car, fastening the nuts upon some bolts.
While the men were thus engaged upon these cars, another train, consisting of 30 or 35 cars, was backed down upon this same track, within from one to six car-lengths of the train being repaired. Carlson knew of this, but did not move or change the flag. He swears that Leith, the other foreman, and one Oscar Strom, had gone ahead, and he supposed that they had moved the flag to the front end of the last train, or would do so; therefore he kept on at work, and paid no attention to the matter. The flag was not changed.
While these two sections were standing on this track, Oscar Strom, a car-repairer, and one of the gang tinder Carlson and Leith, passed along the section last placed upon the track, and inspected the cars. He marked one “B. 0.” (bad order). This car was about the sixth one from the front end of the section. Sylvester Geiger, a brakeman, going out that day, came through the yard, and, seeing this B. O. car, pulled the pin connecting it with the rear cars. He spoke to Murray, the yard-master, about it, and Murray ordered the switch-engine to take this car out. One Faruum, who was not a witness upon the trial, was running the switch-engine. He attached the engine to the first section, and ran the detached cars out upon another track, and the B. O. car was “kicked” upon it. He then ran the remaining five cars back upon track No. 4. As soon as he did this, he detached the engine from them. Geiger was on top of the cars, and supposed the engine was still attached to them. When he got near the rest of the section, to which he intended to couple these cars, he gave a signal for the engine to slow up. Discovering that the engine was not attached, when within about two car-lengths of the section, he jumped off and ran ahead to make the coupling. He testifies :
“They [the cars] just about got up with me, — they don’t run very fast, — kept just about up with me; then somebody halloed at me to get out, and I was kind of scared, so I got out, and lost the coupling, and they struck, and run the others down against the 30 cars these car-repairers were working under.”
Without any warning to plaintiff, the car which he was under lunged back over him, dragging him on his back across Ms tool-chest, injuring his shoulder and spine, from which injury he claims a probable permanent disability.
The testimony shows that it was not the duty of the plaintiff to move this flag, and he had been forbidden to touch it. The men having properly the charge of it were Leith and Carlson.
No one else was authorized to touch it except by their order.
In the plaintiff’s declaration the causes of negligence upon the part of the defendant were alleged as follows:
1. That defendant should have provided a watchman to warn plaintiff of the movement of the cars, and notify other employ és of his whereabouts.
2. That a proper signal flag should have been used to give notice of his presence under the cars.
3. That the cars under which he was working should have been “locked,” or placed against a “ bumper,” or stationary post.
4. That defendant neglected to provide such watchman, flag, or bumper.
5. That defendant neglected all reasonable means to prevent the movement of the cars while plaintiff was at work under them.
6. Defendant negligently required the cars to be repaired' on an open track, upon which engines or cars might be run while plaintiff was at work.
7. And negligently exposed plaintiff to the risk from the movement of the cars.
8. That while plaintiff was under the cars, and in the absence of such precautions, without any warning to him, defendant wrongfully caused a number of cars tó be pushed in upon the track where plaintiff was at work, by locomotive power, at a high rate of speed, unattached to the locomotive, and insufficiently provided with brakemen.
The proof showed that no watchman or bumpers were provided, and no signal used except the red flag, which would undoubtedly have answered the purposes of a sufficient signal had it been removed to the front end of the section last run upon the track.
Upon the conclusion of the testimony, the circuit judge directed a verdict for the defendant, holding—
1. That the injury was caused by the neglect of Carlson or Leith to remove the flag from the rear section, and place it at the head of the front section of the cars upon the track.
2. From the neglect of the switchman, Farnum, to perform his duty; that he had no business or right to uncouple the cars from the engine as he did.
He then ruled that, inasmuch as there was no evidence offered or claim made that either Carlson, Leith, or Farnum were incompetent, the plaintiff could not recover, because all' these parties were, in law, fellow-employés with the plaintiff.
It is claimed by the counsel for the plaintiff that it was negligence on the part of the defendant to run the last section of cars upon the track while'the others were being repaired, and had the signal flag at the front of them; that the evidence shows it was their custom to do so, the only instructions being to leave space between the cars being repaired; and that the plaintiff had a right to go to the jury upon this question.
His counsel assert that the primary cause of the injury was the existence of the rule or custom to permit encroachments upon the track, or a want of sufficiently definite rules to govern the use of the signal flag, or both combined.
The testimony shows that the following rule was in force, and had been for some time before the accident. There was a dispute in the testimony as to whether or not notices of this rule were posted up while plaintiff was in the employ of defendant. But there is no question from the record but the instructions of the defendant were, that the red flag should be placed at the front end of the cars on the repairing track, and that in no event should any train be run against cars having such flag upon them.
The following is a copy of said notice:
“ Chicago & Northwestern Railway Company,
<f Office of the General Superintendent.
“ General Notice.
“ Chicago, October 27, 1881.
“ Hereafter it is made the duty of all car-inspectors and repair-men, before they go under or between any cars to inspect or repair the same, to have first displayed a red signal on the end of ear or cars in-the direction from which a train or engine could approach. 1
“ All train men must carefully observe this notice, and under no circumstances must they back against or couple onto any car while such signal is displayed.
“ Car repair-men and car-inspectors must provide themselves with such signal, which can be obtained from their foreman, and have them on hand at all times for use.”
I think it must be considered that this rule, if enforced, was adequately sufficient for the protection of plaintiff, and the men working at the same employment. A similar method of protection is adopted by other roads, and has in one case been judicially determined to be “a very efficient rule, and, if faithfully and carefully observed, would give reasonable protection to repair-men.” Abel v. President, etc., 103 N. Y. 586 (9 N. E. Rep. 325).
With this rule in existence, and with instructions to all employés to observe it, it was not, in my opinion, negligence on the part of the defendant in not having a watchman or “bumpers;” nor was it negligent to run other cars upon the same track where cars were being repaired, when space was left between them, and the red flag was respected according to the rule.
While the negligence of Farnum, in detaching the engine from the cars used in “kicking” the B. O. car upon the main track, had something to do with causing the accident, the real neglect which was the main cause of the injury was the failure of the foremen, or one of them, to remove the flag, and place it at the head of the front section of the cars upon the repair track. If this had been done, none of the cars would have been moved while plaintiff or any of the men were at work repairing the cars, if the rules of the defendant had been obeyed.
As stated by the circuit judge, there could be no claim from the record that either Farnum, Leith, or Carlson were incompetent men in such sense as to charge defendant with the results of their negligence. If the question were an open one in this State, I should not be inclined to hold that either of these persons was a fellow-employé of the plaintiff. But the law in this respect is well settled in this State, and the cii’cuit judge followed the decisions of this Court, citing them in his charge to the jury. See Railroad Co. v. Dolan, 32 Mich. 510; Smith v. Potter, 46 Id. 258; Railroad Co. v. Austin, 40 Id. 247; Mining Co. v. Kitts, 42 Id. 34; Greenwald v. Railroad Co. 49 Id. 197; Gardner v. Railroad Co., 58 Id. 584; Hoar v. Merritt, 62 Id. 386.
Under che plaintiff’s evidence, and the other undisputed facts in the record, and the law applicable to the same, the judgment of the court below must be affirmed.
The other Justices concurred. | [
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] |
Chakplin, J.
The only question in this ease arises upon a general demurrer to a declaration of 'which, the following is a copy:
“ And for that, whereas, the said plaintiffs heretofore, to wit, for the space of three years last past, and at the time of the injuries herein complained of, were and still are the owners of a valuable leasehold interest in certain premises in the city of Detroit, known and described as lot 3 of the subdivision of the Dequindre farm, and known as number 312 Franklin street east, in said city, aod which premises consisted of a two-story frame building, and cellar underneath the same, which premises were and are occupied as a grocery store, owned and carried on by the plaintiffs as copartners as aforesaid; that a large part of the stock of said grocery store was stored in the cellar mentioned; that said defendant was and still is a municipal body corporate, and a city, under the laws of the State of Michigan; that said defendant has established a system of sewers for said city, and has constructed, maintained, altered, and repaired public sewers in said city, and said defendant is in duty bound to supervisa the construction, maintenance, altering, and repairing of the sewers in said city.
“That heretofore, to wit, in the year 1854, or thereabouts, the said defendant constructed a public sewer in Franklin street, a highway in said city, between Orleans street and Biopelle street, which said Franklin-street sewer was so constructed for the drainage of abutting property; that said Franklin street sewer was connected with the public sewer also built by defendant in Biopelle street, and which formed an outlet by means of which the water and sewerage from property abutting Franklin street was carried to the Detroit river; that said outlet, so constructed in 1853, was built at a certain grade sufficient to and did properly carry off and empty the water and sewerage from the said public sewer, and from plaintiff’s premises, and so remained and continued up to the time of the injuries herein complained of.
“ That the premises of the plaintiffs heretofore, to wit, for the period of nine years and upwards last past, and at the time of the injuries complained of, were properly connected by good and sufficient drainage with said public sewers in Franklin street, and thereby with the said outlet in Biopelle street, and in such manner as to thoroughly and properly drain said premises, and particularly said cellar, and so as to keep, and did keep, the said cellar dry, and free from all sewerage and water, at all times, and so as to enable the plaintiffs to use, and said plaintiffs did use, said cellar for the storage of their grocery stock, at all times up to the time of the injuries herein complained of.
Yet the said defendant, well knowing the above premises, but contriving and intending to injure the said plaintiffs in their leasehold estates, and their property and business as aforesaid, did on or about the first day of October, A. D. 1885, through and by its agents, contractors, servants, and employés, to wit, the board of public works and the city engineer of the city of Detroit, one George S. Langley, contractor, and other servants and employés and agents of said defendant, rebuild the said outlet to the said Franklin-street sewer in Eiopelle street, and did so rebuild the same without leave of plaintiffs, and without notice to them, at a new and different grade from that at which said original outlet was built; and said defendant, its agents, servants, and employés, did carlessly, negligently, wrongfully, and unskillfully raise the grade of said outlet in Eiopelle street, so that the grade thereof was higher and above the grade of said Franklin-street sewer, by means whereof the water and sewerage from said public sewer in Franklin street, and from said Eiopelle-street sewer, were floo'led upon and discharged over and into the premises of the said plaintiffs, and did there remain and stagnate for a long space of time, to wit, for about one year, whereby said premises, particularly said cellar, were rendered untenantable, and plaintiffs deprived of the use thereof for a long space of time; and said premises were entirely deprived of drainage, and the goods, wares, and merchandise of plaintiffs were injured and destroyed, and the leasehold interests of said plaintiffs thereby greatly depreciated in value; and by means of the said several premises the said Virginia Defer and Michael F. McDonald have been and are greatly injured and damaged.
“ And said plaintiffs aver that heretofore, to wit, on the sixth day of July, A. D. 1886, they presented this cause of action to the common council of the city of Detroit in writing, and petitioned the said common council to pay the plaintiffs for their damages sustained as aforesaid, but the said common council, after, due deliberation, subsequently, to wit, on the sixteenth day of November, A. D. 1886, rejected the said claim, and refused to pay plaintiffs any sum whatever; whereby an action hath accrued to the said plaint iffs, against the defendant, by reason of the premises, to the damage of the said plaintiffs five hundred dollars, and therefore they bring suit.”
The argument in support of the demurrer proceeds upon two principles:
1. That a municipal corporation is not liable for an injury resulting from the exercise of its legislative powers.
2. That a municipal corporation is not liable, at the suit of a private individual, for damages arising from the insufficiency or defective construction of its public sewers, when such damage results directly to the party injured from his use and occupation of the same for his private advantage and convenience.
That the first proposition, broadly stated, is not universally true, is shown by the case of Ashley v. Port Huron, 35 Mich. 296, and cases cited in the opinion. The distinction is that, where the plan adopted by the muncipality must necessarily cause an injury to private property equivalent to some appropriation of the enjoyment thereof to which the owner is entitled, then the muncipality is liable; but where the fault found is with the wisdom of the measure, or its sufficiency or adaptability to carry out or accomplish the purpose intended, and where its construction according to the plan adopted invades no private rights, then the municipality is not liable. Detroit v. Beckman, 34 Mich. 125; Ashley v. Port Huron, 35 Id. 296.
Testing the declaration by the principles above laid down, we are to determine whether it is sufficient in law to hold the defendant liable.
It alleges that the defendant rebuilt the outlet of_ the Franklin-street sewer, where it enters the Riopelle-street sewer, upon a new and different grade from that at which the original outlet was built, and that in doing this the defendant carelessly, negligently, wrongfully, and unskillfully raised the grade above the grade of the Franklin-street sewer, by means whereof the water and sewerage from the public sewer in Franklin street and Riopelle street were flooded upon and discharged into the plaintiffs’ premises.
The declaration, in short, charges an act of misfeasance by defendant, which caused an invasion and overflow of their private property from the sewers. For such an act of misfeasance the defendant should be held liable, unless the second point taken by its counsel should prevail.
Counsel for defendant insists that the case of Dermont v. Detroit, 4 Mich. 435, supports the second position assumed by him. It was held in that case that the defendant was not liable, at the suit of a private individual, for damages arising from the insufficiency or defective construction of its public sewers, when such damages resulted directly to the party injured from his use and óccupation of the same for his private advantage and. convenience. It was, however, intimated in that case that had the plaintiff’s damage happened directly in consequence of the defendant’s want of prudence or skill in the construction of its sewers, instead of by reason of his private drain being connected with the sewer, the case would have merited a very different consideration. It was also suggested that, had the injury occurred in consequence of the imprudent and unskillful construction of the Congress sewer with the Wool ward-avenue sewer, a very different question from the present would have been presented.
The case made by the declaration in this case rests upon the careless and wrongful action of defendant in raising the grade at which the Franklin-street sewt-r enters and connects with the Riopelle-street sewer. It compla'ns of a ministerial act negligently and wrongfully done, and' not of an act involving legislative or discretionary power.
The acts complained of are analogous to those in the case of Ashley v. Port Huron, 35 Mich. 296, and if, upon the trial, the facts developed show that the act complained of was committed by the defendant in the execution of a ministerial duty, or in the exercise of a wrongful act, by which plaintiff’s premises were flooded by the water in the sewer being set back and discharged upon their premises through a sewer connection which they had a right to make and maintain, the principles enunciated in the Ashley Case will control this. The questions pertaining to the defendants duty and liability in this respect should be determined upon the facts as established upon the trial. It is too early in the case to anticipate what those may be. We merely express our opinion at this time that the declaration discloses a cause of action.
The demurrer will be overruled, and the defendant may have leave to plead.
The judgment is reversed, and the cause will be remitted for further proceedings.
The other Justices concurred. | [
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] |
Sherwood, J.
The plaintiff in this case is a foreign corporation, doing business in this State.
The defendant company is duly organized under the laws of this State—
“ For the purpose of publishing periodicals, newspapers, books, tracts, documents, and other publications of a historical, religious, literary, agricultural, scientific, or educational character, and for general printing and publishing business,”—
And was a copartner with the other defendant, as claimed by the plaintiff, and, as such, liable to the plaintiff for the ■claims mentioned in the declaration, which is upon the common counts in assumpsit.
The defendant company pleaded the general issue, and the cause was tried in the Saginaw circuit before a jury. At the close of the testimony, the circuit judge directed a verdict for the defendants, and the plaintiff brings error.
The copartnership company (defendants) did business under the name of the “Michigan Paper Company,” and the suit is brought to recover the sum of $576, being a balance claimed to be due for merchandise sold by the plaintiff to said company. The items of the claim are set forth in the plaintiff’s bill of particulars, upon which the balance is ■shown. The defendant company alone appears and defends. Mitchamore made no defense in either court.
The copartnership of the defendants was formed and created by the following contract:
“Memorandum of agreement made this first day of September, 1883, between the Courier Company, of East Saginaw, Michigan, and C. H. Mitchamore, of the same place.
“ The conditions of this agreement are that the said ■Courier Company shall contribute the sum of eight thousand dollars ($8,000) in cash or merchandise, or both, and the said C. A. Mitchamore shall contribute the sum of six hundred dollars ($600) in cash, for the purpose of forming a copartneiship between the said parties, and carrying on a .general paper business, under the firm name of ‘ Michigan .Paper Company,’ said firm doing business in East Saginaw; the said C. H. Mitchamore to assume and retain the management of said business; and. as a compensation for his services, the said Michigan Paper Company shall pay said Mitchamore the sum of nine hundred dollars ($900) per .•annum.
“ An inventory of. all goods and chattels shall be taken semi-annually; and the net profits, after paying all expenses, including interest at the rate of seven (7) per cent, on the capital invested, — interest payable to each copartner according to his or their right therein, — shall be divided equally, between the said copartners; and the said net profits are not withdrawn from, but remain with, said Michigan Paper Company. It shall become a part of said capital, and draw interest as hereinbefore stated.
“ This agreement shall be binding to the said Courier Company and C. H. Mitchamore for the term of one year from' the date hereof, and, if mutually agreed at the expiration of the one year, then this agreement shall be binding upon said parties for the term of five years from the date hereof.
“ Courier Company,
“ W. H. Edwards, Manager.
“ C. H. Mitchamore.”
The testimony tends to show that, for- many years previous to the formation of the Michigan Paper Company, the Courier Company had been carrying on, in connection with its printing business, the business carried on by the paper company; that the Michigan Paper Company carried on its business in the same room after it was organized; and that xMitchamore was taken in to conduct and supervise tint branch of the business. It further appears from the record that at the time the contract of September 1, 1883, was made • the Courier Company’s stock numbered 1,000 shares, and that W. H- Edwards was at that time the manager, president, and treasurer of said company; that W. H. Edwards held 14 shares of the stock, and his wife held 840 shares, and the remaining 146 shares were held by 9 other individuals.
The record further shows that in pursuance of the agreement of September 1, 1883, the Courier Compary contributed to the Michigan Paper Company all of its stock of goods on hand, and received a credit therefor on the Courier Company’s books for the sum of $7,849.15, and that Mitchamore contributed $600, and was to receive a salary of $900 per annum; and further shows that each was to receive interest at 7 per cent, on the capital invested, which, with the expenses, the business was to pay; but net profits were not to be withdrawn, but remain with the paper company.
Under the contract of September 1, 1883, and the circumstances above stated, as the proofs show, the Michigan Paper Company commenced doing business, and continued it until the first day of September, 1884, when the company was dissolved, and another arrangement was made between the said Mitchamore and the said Courier Company, by said W. H. Edwards, as manager thereof. This new arrangement was reduced to writing, as follows:
“This agreement, made at,d entered into this first day of September, A. D. 1884, by and between the Courier Company, of East Saginaw, Michigan, of the one part, and C. H. Mitchamore, of the same place, of the other part, Witnesseth :
' “ That whereas, on the first day of September, 1883, the said parties hereunto entered into a partnership under the name and style of the ‘ Michigan Paper Company,’ upon the terms and conditions stated in the articles of copartnership between the said parties, of date the said first' day of September, A. D. 1883.
“ And whereas, the said Mitchamore is desirous of purchasing the interest of said Courier Company in said Michigan Paper Company; and it is agreed between the parties hereto that the value of said interest of said Courier Company in said copartnership is the sum of $6,783.
“Mow, it is agreed that said copartnership between said Courier Company and said Mitchamore shall continue under the name and style of the ‘ Michigan Paper Company,’ upon the following terms and conditions:
“ First. The said Courier Company agrees to sell, and the said Mitchamore agrees to purchase, the interest of the said Courier Company in said copartnership, for the sum of $6,783, which shall be paid by the said Mitchamore to the said Courier Company as follows: $500 upon the execution of this article; $500 on or before October 1, 1884; $1,000 on or before November 1, 1884. And the balance of said purchase price shall be paid as follows: $200 on the tenth day of each month, commencing December 10, 1884, and continuing on the tenth day of each and every month thereafter, until the lull amount of said purchase price is paid, with interest upon all sums remaining unpaid, at the rate of 7 percent, per annum, semi-annually; said interest payable on the tenth day of March and September, respectively.
“It is agreed that said Courier Company shall keep, hold, and retain its title and ownership of the property, stock, and effects of said Michigan Paper Company until the full and complete performance of the agreements herein contained, as its interests in said copartnership from time to time,may appear; it being understood and agreed that the interest of said MjtcliaiIlore in said copartnership shall increase, and the interest of said Courier Company decrease, in proportion to the payments made by said Mitchamore, in accordance with the terms and conditions of this contract as hereinbefore stated; that so long as the terms and conditions of this agreement are complied with, and the payments aforesaid are made, all the profits of said business shall belong to said Mitchamore; the interest upon said payments hereinbefore provided being treated and taken by said Courier Company in lieu of its share of the profits of said copartnership. It is understood and agreed that said Mitchamore shall have the sole management and control of said business.
“ It is further agreed that if said Mitchamore shall pay the said Courier Company the sum of $5,500, in addition to the $500 paid upon the execution of this contract, on or before September 20, 1884, with interest upon the amount herein-before stated from this date to the time of said payments, then said Mitchamore shall be and become the absolute owner of all the rights, property, and effects whatsoever of said Michigan Paper Company.
“ In witness whereof the parties have hereunto set their hands the day and year first above written.
“ Courier Company,
[In Duplicate.] “By W. JEL Edwards, Manager.
“C. H. Mitchamore.”
It was during this period from September 1, 1883, to September 1, 1884, that the plaintiff sold to the defendants the goods for which it claims to be entitled to recover. Whether the goods were sold by the plaintiff to the defendants, and, if so, to what amount, and 'within the period claimed, if disputed, were questions of fact for the jury.
The plaintiff's theory of the case is that, -whatever may be the character of the contract of September 1, 1883, the Courier Company, and no one else, was actually interested with Mitchamore in the Michigan Paper Company’s business, and was therefore jointly liable with him to .the plaintiff, whose goods had built up and sustained the Courier Company’s business. This is the point of plaintiff’s main reliance, and it claimed there was abundant evidence in the case to have sustained its theory, had it been submitted to the jury.
Against this theory, the counsel for the Courier Company make the following points, which, as stated in their own language, are:
"1. The plaintiff did not establish the copartnership between the Courier Company and Mitchainore.
“ 2. It did not establish any joint liability against Mitchamore and the Courier Company.
“ 3. It did establish the fact that the. business carried on by the Michigan Paper Company was a business the Courier Company could not lawfully engage in, being ultra vires.
“4. It did establish the fact that the Courier Company never received, directly or indirectly, a dollar’s worth of goods or benefit from the goods of the plaintiff which were delivered to the Michigan Paper Company, and for which this claim is made.
“ 5. It established the fact that part of the goods of the plaintiff sold to the Michigan Paper Company, together with a large amount of other goods and outstanding accounts for merchandise, were transferred to the assignee of Mitchamore; and it did not establish the fact that the very goods for which this claim is brought may not have been included in the outstanding accounts, or included in the goods still on hand.
“ 6. It established the fact that the business carried on under the name of the ‘Michigan Paper Company’ was the business of Mitchamore and Edwards, and that the Courier Company was never interested in it.
“ ?. It established the fact that Edwards never had any authority to make the contracts of September 1, 1883, or September 1, 1884.
“ 8. It established the fact that the Courier Company never received any of the proceeds of the contract of September 1, 1884, or of plaintiff’s goods.”
I do not think it was necessary to establish a copartnership between the defendants to create the liability claimed against them. A corporation may, in furtherance of the object of its creation, contract with an individual, though the effect of the contract may be to impose upon the company the liability of a partner. And, as to third persons, the liability of a partner is frequently imposed, though it was not the intention of the party sought to be charged to become one, and even though a partnership could not have been made. Field, Corp. § 263; Manhattan B. & M. Co. v. Sears, 45 N. Y. 799; Leggett v. Hyde, 58 Id. 272; Raft Co. v. Roach, 97 Id. 378; Catskill Bank v. Gray, 14 Barb. 471; Marine Bank v. Ogden, 29 Ill. 248; Allen v. Woonsocket Co., 11 R. I. 288. The defendant’s first point is therefore without force."
The second point is of more consequence. If the jury had found the facts as claimed by the plaintiff, — viz., that the plaintiff sold the goods in good faith to the defendants, relying upon the Courier Company’s, liability, as well as that of Mitchamore, and the company, as well as Mitehamore, had the benefit of the goods, or the proceeds thereof, and they were such as both defendants were using in their business; that the defendants have received all the property claimed; and that the plaintiff once received the note of the defendants therefor; and that there was testimony given tending to prove, substantially, these facts, — I think they were sufficient to establish liability on the part of the defendants, under the authority of Day v. Buggy Co., 57 Mich. 146. See, also, Parish v. Wheeler, 22 N. Y. 494, 508; Whitney Arms Co. v. Barlow, 63 Id. 62; Thomas v. Railroad Co., 101 U. S. 71. There- was testimony upon these several points, which should have been submitted to the jury. The defendant’s second point only raised a question for the jury, and is, therefore, not well made.
The defendant’s third point presents a mixed question of law and fact, and should have gone to the jury, under proper instructions from the court.
The defendant’s fourth, fifth, sixth, and eighth points present questions of fact upon which testimony was given; and the credibility of that testimony, and what it proved, the jury should have been allowed to pass upon and determine.
In the view I take of the case, the defendant’s seventh point, if the facts were as stated therein, would be entirely immaterial, if the jury found the other facts in the case in accordance with the plaintiff’s theory. If the Courier Company received the property claimed for, it makes no difference how irregularly the defendants came into possession of the property of the plaintiff, if it was not by any immoral or eriminal means. Justice requires that they should make reasonable compensation therefor.
This disposes of the several points relied upon by counsel ior defendant. I find none of them well taken.
There can be no question, I apprehend, but that it was competent for the Courier Company to jointly make the purchase of the goods with Mitchamore, which he ordered on "their joint account, and which the contract of September 1, 1883, authorized him to make. The goods thus received, if used, or the proceeds controlled, by the Courier Company and Mitchamore, should be paid for by them; and, under the testimony given, the facts should have been submitted to the jury, and the circuit judge erred in holding otherwise.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Chau pun, J.
Relator asks for a mandamus to restore him to membership in a society known as the “Bavarian National Aid and Relief Association of the City of Detroit,” which is a corporation organized under the laws of the State of Michigan, entitled “An act to provide for.the incorporation of benevolent societies.”
The constitution under which the association was organized contains, among other provisions, the following:
“ Art. 3, § 6. Should a candidate or member turn out to be a bad character, or give false statements, every member will be in duty bound to immediately notify the society thereof, and such member shall be excluded.”
“ Art. 4, § 14. Every member ‘is in duty bound to obey every order given him by the society, and to comply with all the duties imposed on him of the constitution and by-laws.”
There is no provision in the constitution, nor is there any by-law, providing for the infliction of a pecuniary fine or penalty for the infraction of the constitution or by-laws.
The return of respondent admits the incorporation as alleged in the petition, and that the relator was a member in good standing up to the meeting held on the twentieth day of May, 1886; that on May 6, 1886, at a meeting of the association at which relator was present, one Joseph Yattner, also a member in good standing, verbally complained and charged said relator, in the presence of the members of the society, with conduct unbecoming a member, viz.:
“In stating to Mrs. Unzieker publicly, upon the street, and to other persons, that respondent would not pay her son, and never intended to pay him, any benefits, and that said respondent never paid any benefits unless compelled so to do; and advising said Mrs. TTnzieker to bring suit against said respondent at once, and that he, said relator, being trustee, would aid her.” .
The return then sets forth that said statement so made by relator was false, malicious, and wicked; that when these charges were preferred he was present at the meeting of the association, and took active part in the discussion- that followed immediately the presentation of the charges; that a committee was appointed to investigate the truth or falsity of the charges, and that at a meeting held on the twentieth of May, 1886, the committee, in open meeting, and in the presence of relator, reported, finding the relator guilty of conduct unbecoming a member of said association, and that said charges were sustained, proved, and found to be true; that motion was then made, relator being present, supported, and carried, that said relator be fined five dollars, and that, in default of payment of said fine before the first meeting in July next following, he stand suspended as a member of said association, and forfeit all rights and benefits attending the same; that relator was present, and addressed the members several times in opposition to the motion relating to the fine imposed upon him. Eelator did not pay the fine, but refused soto do, and at the meeting held in July he was declared suspended as a member of said association by the president.
They admit that said proceedings were had under section 6 of the constitution, which they claim, correctly translated into English from the German, reads as follows:
“ In case that any applicant or a member shows a bad character, or makes false accusations, and the like, every member is obliged to notify the society at once, and such a one can be dismissed from the society at any time.”
It is evident from the foregoing statement that the action of the respondent in dismissing or suspending relator cannot be sustained. Before he can be fined, there must be a by-law adopted by the association defining the offense and imposing the penalty. The fine, being without authority, was illegally imposed, and he could not be suspended for not paying it.
Whether the offense with which he was charged comes within the meaning of section 6, authorizing a suspension, we need not determine. A person who is a member of a corporation, unless he has waived or forfeited the right, always is entitled to a copy of the charges preferred against him, and to be present at the taking of testimony against him, or an opportunity afforded him so to do, and to produce testimony in his own behalf.
Upon’the return, as made, the relator is entitled to the relief prayed. Let a peremptory mandamus issue.
The other Justices concurred. | [
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McGrath, J.
This is ejectment by the heirs of Eliza Dickinson, claiming under a deed from Abner Moore, executed in 1852. Eliza Dickinson gave back a life lease. Moore died in 1869, leaving defendant in possession, and this suit was commenced in 1870.
Moore’s wife died some time between 1855 and 1857.
Moore came to Michigan some time in 1834, leaving his wife and four children in Pennsylvania. Two of the children came to Michigan and lived for a time with Moore, but the wife never came, and never resided in Michigan; nor is there any evidence that any correspondence ever passed between husband and wife; nor does it appear that Moore ever returned to Pennsylvania, even to attend his wife’s funeral. One witness who knew the family in Pennsylvania, and had removed to Michigan, and lived in the neighborhood, says that in 1842 or 1843 Moore said to him that “when he got ready and means he expected to fetch his family out.” Other witnesses say that in 1844 and 1845, and again in 1858, 1859, and 1860, Moore said that he had left Pennsylvania with the intention of never living with her; that he could not live with her there, and would not here. There is no evidence that his wife ever expected or intended to live in Michigan. >
Eliza Dickinson lived with Moore as his housekeeper from 1847 to 1867. The consideration named in the deed is $800.
The trial court instructed the jury as follows:
“ It is conceded, gentlemen, by the evidence, that this wife never lived in the State of Michigan, but that she lived in the state of Pennsylvania. Now, the question which I submit to you is whether this 40 acres of land in ■question was, at the time it was conveyed or attempted to be conveyed to -Eliza Dickinson, the homestead of Abner Moore, and whether he intended it as his home. If you find that it was his homestead, and that he intended that 40 acres .of land for his home, then I instruct you that your verdict must be for the defendant. * * * The plaintiffs claim that this was not the homestead of Abner Moore; that he did not intend it for a home; that he was not living with his wife, and did not intend to live with her, but that he had abandoned her when he came from Pennsylvania here; and that he did not regard it as a homestead. On the other hand, the defendant contends that he came to the State in 1834, and some years after-wards he went on to this piece of land, then in a wild state, and improved and put buildings upon it, and intended to make it his home. The evidence which was admitted — and there was some of it given on both sides as to whether he intended to bring his wife here — may be taken into consideration by you upon this question as to whether he intended to make this 40 acres his home. The defendant, as I have stated to you, alleges that this was his homestead; that he intended to make it his homestead; and any attempted alienation of it without the signature of his 'wife to the deed of alienation would render that deed to Mrs. Dickinson void. I instruct you that the burden of proof would be upon the defendant to show that this was a homestead, and intended ,by Abner Moore to be his home, because that is the defense he sets up as against this ownership by Abner Moore and the conveyance to Eliza Dickinson.
* * * If you find that he was a married man at the time he alienated it, or attempted to alienate it, to Eliza Dickinson, and intended it for a homestead, then I instruct you that the deed to Eliza Dickinson-would be void, because his wife, notwithstanding she-was not domiciled in this State, but in the state of Pennsylvania, did not .join him in the deed. If you so-find that this was his homestead, and he intended it to-be at this time, then, as I instructed you before, your verdict shall be for the defendant. If you find it was not a homestead, that it was not intended by him to be-a homestead, at the time he made the deed to Eliza Dickinson, then I instruct you that it would convey a good title, and that these plaintiffs would be entitled tereco ver.” ,
Under these instructions the jury found for defendant, and plaintiffs appeal.
The instructions were clearly erroneous. The case is ruled by Stanton v. Hitchcock, 64 Mich. 316, 319. Eliza. Dickinson was a Iona fide purchaser for value. In view of the conveyance to her, it cannot be claimed that Moore intended to assert or preserve his wife’s homestead rights in these premises. As is said in the case cited:
“Under our legal regulations, no imaginary or imputed intention can supplant the actual intent. It would be little short of absurdity to hold that Hitchcock could at the same time contemplate the occupancy of the house as the home of his second wife and also of the first. * * *******
“The object of the Constitution is not ambiguous. It is to protect that dwelling which has been the actual home of the family from such disturbance as will make-them lose its enjoyment. It is confined, by its language, to the property actually occupied as a homestead by a resident of Michigan; and, if the owner has a family, it is the actual home of that family which is protected- from seizure by creditors. There is nothing in the statute which contemplates that a wife who has never lived on the premises, or claimed to live there, may, after her husband’s death, claim such an interest by relation as will avoid his dealings with property which he never meant should be the home of the absentee, however much he may have wronged her. The statute which, after a husband’s death, secures rights to a widow, is -confined expressly to resident widows.* * * * * *
“ The first wife never contemplated it as her and her husband’s joint home. * * * It must be remembered, not only that the character of any property as a homestead depends on intention, but that it may be entirely destroyed by a removal of residence. There is nothing in the law to prevent such removal at any time, and after it the property stands, like any other property, liable to sale or aDy other disposal by the owner at his pleasure. Under our laws, the sale by a husband whose wife is non-resident carries the property free from any right of dower. Actual non-residence in such ■case, in spite of the marital relation, cuts off any control over the sale of a complete title. * * * The law would be grossly tyranical if it tied the husband’s hands in the one case at least, and it cannot be possible that such consequences could have been designed by the Constitution. It was designed to protect those who had subjected themselves to its laws, and acted in reliance on them, but not to treat as homes what are not homes, or give powers to non-residents which could not, under any ■circumstances, be of any use to them personally.”
The husband and wife, living separate and apart under circumstances such as these, might each claim a homestead, the one in Pennsylvania and the other in Michigan, but neither could claim both.
Plaintiffs were entitled to judgment. The judgment is therefore reversed, and judgment entered here for plaintiffs, with costs of both courts, and the record remanded.
The other Justices concurred. | [
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] |
Pur Curiam.
The following is the stipulation of' facts in this case:
“It is stipulated and agreed that the following statement of facts shall have the full force and effect of an answer made by said respondent upon an order to-show cause why a peremptory mandamus should not issue-against him, and that the matter of this application may be decided by this Court solely upon said facts, viz.:
“March 4, 1892, complainant, by Button & Norris,, his solicitors, presented to respondent the fourteen bills of complaint, copies of which are attached to the application in this matter, and also three other like bills,— one against Henry Finnegan, one against Robert Trotter,, and one against Philip McKernan; the said Diamond Match Company being joined as a co-defendant in each of said three suits. On said day the said Diamond Match Company, by Hubbell & Gray, its solicitors, appeared also before respondent upon due notice and by consent of complainant's solicitors, and filed the affidavit of said company's general manager in each of said cases, and thereon objected to respondent's allowing the injunction as prayed, for the reason that great and irreparable-injury would be done the said company by the granting thereof, and that such affirmative action by respondent would therefore be inequitable and unjust, and would in no way benefit complainant.
“Said affidavits showed the following cases, respectively:
“In two cases against Maggie Trotter and Mary A. Trotter (said Diamond Match Company being joined as a co-defendant in each thereof), that said company had purchased of each of said defendants the pine timber on said land, and the right to cut and remove the same, but that it was not then cutting the same, nor did it intend to.
“In said case against said George W. Pearsons (the said Diamond Match Company being joined therein as a co-defendant), that said company had purchased the pine timber on said land, ’ and the right to cut and remove it, but was not then cutting the same, nor did it intend to this year; and, further, that during all the time the roll was in complainant’s hands, as stated in said bill, ever since that time, and now, said company was, has been,, and is indebted to said Pearsons in a sum greatly exceeding the amount of the tax on said lands, over and above all exemptions and legal set-offs.
“ In the cases against Prank Robinson, David Crowell, John McCormick, and Talfour L. Jeffers, respectively (said Diamond Match Company being joined as a co-defendant in each thereof), that said company had purchased of said several parties the pine' timber on the lands owned by them, as stated in the bills in said respective suits, and the right to remove the same; that a fire had passed over said lands, and burned certain of the said timber thereon, and that, unless the same was at once cut and manufactured, it would be a total loss to said company (the value of said burned timber in said four cases being upwards of §10,000), and that said company was then engaged in cutting and removing said burned timber only, and was not cutting and did not intend to cut any of the unburned timber on said lands this year; and that the said unburned timber on said lands in each case was worth the said unpaid tax thereon, many times over; and, further, that in each of said cases said company had been indebted to said parties, the owners of said lands, severally and respectively, in sums greatly exceeding the amouut of said taxes, respectively, during all the time the said roll was in complainant’s hands, as stated.
“In the respective cases against the Keweenaw Association, Limited, Sylvester Kinney, and the James C. Ayer Estate (said Diamond Match Company being joined as a co-defendant in each thereof), that said company had purchased the timber on said lands, and the right to cut and remove the same; that a portion of said timber had been burned, and that.unless the same was cut and removed at once, and manufactured, it would be a total loss to said company; that said burned timber in said three cases was of the value of $6,000 and upwards; that it was engaged in cutting and removing said burned timber only, and did not intend to cut or remove any of the unburned timber this year; that the said unburned timber on said lands was in each case of sufficient value to pay the unpaid taxes thereon, many times over.
“ In the case against Michael McGuire (wherein said Diamond Match Company was joined as a co-defendant), the same facts as in the last foregoing affidavits; and, further, that during all the time the tax roll was in the hands of oomplainant, ever since then, and now, said company was, has been, and is indebted to said McGuire in an amount greatly exceeding the said unpaid tax,, over and above all exemptions and legal set-offs.
“ In the case against George E. McLaughlin, that said company-had purchased of him the pine timber on said land, and the right to cut and remove the same; that all the uncut timber thereon, about 300,000 feet, had been burned, and, unless the same was cut and manufactured at once, it would be a total loss to said company; and that it-was then engaged in cutting and removing the same.
“In the case against John Diffin (wherein said Diamond Match Company was joined as a co-defendant), the same facts as in the last foregoing affidavit; and, further, that during all the time the roll was in complainant’s hands, ever since then, and now, said company was, has been, and is indebted to said Diffin in an amount greatly exceeding the unpaid tax, over and above all exemptions and legal set-offs.
“In the case against the said Diamond Match Company alone, that said company was not cutting' or removing any of the timber on said land, and did not intend to this year; and, further, that during all the time the roll was in complainant’s hands, ever since then, and now, the said company had, has had, and has personal property in said county of Ontonagon, available for levy by complainant or by virtue of any process, and entirely unincumbered, .of the value of upwards of $100,000.
•“ In said three cases against Henry Einnegan, Robert Trotter, •and Philip McKernan, -that all the timber on said lands had long since been cut and removed, and that said company for that reason had ceased logging, and would not at any time thereafter further log on said lands.
“And in each of said affidavits the further statement was made that, as to the township tax, said company-had been informed, advised, and believed that the same was invalid.
“ And thereupon, after argument by counsel for said respective parties, and upon consideration of the premises, said respondent refused to allow the said injunctions as prayed for.
“Dated March 10, 1892.
“Hubbell & Gray,
Solrs. for Diamond Match Co.
“Button & Norris,
Solrs. for relator.”
The statute (Act -No. 223, Laws of 1889) provides that the “township treasurer shall be entitled to an injunction to restrain waste” on lands where the owner “shall neglect or refuse to pay any tax assessed” upon the same, •“when it shall appear that such lands are chiefly valuable for the timber being, standing, and growing thereon.” Caldwell v. Ward, 83 Mich. 13, 88 Id. 378. Upon the facts above stipulated the injunction should have been .granted in each case. There in nothing shown to warrant the respondent’s order denying the same.
It was not intended by the Legislature that the imperative mandate of the statute should be defeated by a showing by affidavit that the tax could have been collected by other process, or that it was not the intention ■of the owners of the lands, or of the timber upon them, to commit any waste within a year or any period, or that, if they should cut what they intended to, there would still be value enough in the land or timber to pay the taxes assessed against the lands. Caldwell v. Ward, 83 Mich. 16, 17.
There can be no hardship in the issue of these injunctions. It is not claimed that any of the taxes assessed ■against-these lands are illegal, except the township tax; ■and this can be paid under protest, and the rights of the parties thereby preserved.
The writ of mandamus will issue, commanding the respondent to issue the injunctions as prayed in relator’s petition. | [
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] |
Sherwood, J.
On the thirty-first day of October, 1884, the plaintiff and defendant entered into a written contract by which the defendant agreed to sell and convey to the plaintiff two parcels of real estate in the village of Constantine for the sum of $4,000.
After giving a description of the property, the contract continues as follows:
“I, said Welburn, agree to receive a certain promissory note of Wm. Proctor and Marion C. Proctor, dated April 26, 1884, due one year from date, as a payment of the sum of $1,500, when such note shall be paid by said Proctors to me, said Welburn, and when it shall be paid, I agree to receive the same as such sum at this date, and, upon the payment of said sum of said note at the time when due, I hereby agree to make and execute to said Seth Sheard a good and sufficient, warranty deed of said premises above described, and said slaughter-house and lot aforesaid.
“ And said Welburn further agrees to receive of said Sheard, upon the execution of said deed, a promissory note and a mortgage upon the said premises, as security for the balance of said sum of $4,000 then remaining unpaid, and also to give possession as early as possible to said Sheard.
“ I, said Seth Sheard, hereby agree to accept said premises, and to purchase the same, and to pay the said sum of $4,000 therefor in the manner above set forth, and to pay to said Welburn interest at the rate of 6 per cent, upon the balance of said purchase money, other than said note, from the date of these presents until the execution of said deed and mortgage, and to covenant for the payment of annual interest at the same rate in said mortgage.
“And ior the full and faithful performance of the covenants and agreements herein contained, we, the said parties hereto, do bind ourselves, our heirs, executors, and assigns, firmly by these presents.”
The following is a copy of the note:
“$1,500. Constantine, Mich., April 26, 1884.
“ One year after date we promise to pay to the order of Seth Sheard fifteen hundred dollars at Constantine, Mich., value received, with interest at 6 per cent, per annum.
“Wm. Proctor.
“Marion C. Proctor.”
The plaintiff indorsed over said note to the defendant, as required by the contract; and afterwards, on the twelfth day of November, 1884, he went into possession of the premises, and made some improvements upon the house, and built two-coal-houses on the lot. The note was not paid when it became due, and on the eighteenth day of November, 1885, the defendant brought suit thereon in the St. Joseph circuit, and on the thirtieth of January, 1886, obtained a judgment for damages and costs, amounting to the sum of $1,736.70, and on the twenty-fourth day of April, 1886, the defendant received the amount of said judgment.
The defendant, twice before the money was received upon the note or judgment, tendered a deed of the premises to the plaintiff, who did not accept it, not knowing that it would be proper for him to do so, or when the judgment would be paid. The plaintiff, however, testified that he did, in the month of April, 1886, offer to pay for the property, and demanded a deed, but that defendant would have nothing to say to him; and that, within four days after he received the payment of the judgment, he gave the plaintiff notice to quit, which, after describing the property, says—
“The same being the property mentioned in the contract between Alfred Welburn and Seth Sheard as the slaughterhouse and lot, within three months from the service of this notice upon you, for the reason that you have not fulfilled the terms of a certain written contract entered into by you on the .thirty-first day of October, 1884, for the purchase of said property.”
On the fourth day of August, 1886, the defendant instituted a suit before a circuit court commissioner to recover the possession of the premises, and obtained a judgment for the restitution thereof on the nineteenth day of November following, and the defendant was put into possession of the same, under an execution issued upon such judgment. A portion of the property was not included ■ in the ejectment proceedings. This was, however, surrendered up to the defendant before any execution was issued on the judgment for restitution, and he took possession thereof. He also retained the money collected on the judgment rendered on the Proctor note.
It is to recover this money, or such portion thereof as he may be justly entitled to, that the plaintiff brings this suit, and claims that the defendant is not entitled to both the possession of the land and the money; that he cannot thus annul the contract, and at the same time receive the benefits thereof; that the contract contains no provisions which will allow him to do this; that the possession of the property was given by the defendant, and received by the plaintiff, under and by virtue of the contract, and that what occurred between the parties, and what was done by the defendant, was a rescission of the contract; and that the plaintiff is legally and equitably in this action entitled to recover what was received by the defendant upon the judgment against the Proctors, less the necessary expenses for collecting.
The court took a different view of the case, and directed a, verdict for the defendant.
We think this direction was wrong, and not in accordance with the just rights of the parties. The plaintiff should have been allowed to recover the amount collected on the judgment against the Proctors, less the expenses of the suit for collecting; also the reasonable value o.f the improvements he in good faith made upon the property, less the use of the premises while in the plaintiff’s possession.
The authorities cited by counsel fully sustain these views, and the judgment must be reversed, and a new trial granted.
Champlin and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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] |
Sherwood, J.
The deceased, in his life-time, carried on the auction and commission business in the city of Detroit, first, under the name of Wardell & Walsh, and, after Ward-ell retired, Walsh took a special partner, named Jennings, and the business was then conducted under the name of Thomas Walsh & Co. Jennings died, and after his death Walsh continued the business alone under the same name.
The defendant resided in Chicago, and did business there, and carried on a branch store in Detroit under the name of Pardridge & Co., which was managed .by Mr. Nye and Miss Randall.
Walsh died on the evening of September 16, 1885.
On the day of Walsh’s death an auction sale of property at his store was held, and the defendant, Pardridge’s, agent attended and bid off quite a large quantity of goods, but they were neither set apart nor delivered to him.
A day or two after Walsh’s death the defendant went to the store of Walsh, and bought of the clerks goods to the amount $3,039.96, which were all delivered to defendant on the nineteenth day of September, and paid for on the twenty-first following, by check given to the book-keeper who had been in Walsh’s employ, and was in the store at the time doing business, and the book-keeper turned over the money to the widow of Mr. Walsh. Thomas Walsh’s estate was insolvent, and never received the money for the goods, or any part of it.
The plaintiff, after his appointment as special‘administrator, endeavored to obtain the money of the widow, for use of the estate, but she declined payment. Failing to obtain the money for the goods, and the auction sale not having been completed, the administrator saw the defendant, Pard-Tidge, and made a demand upon him for the goods, which was refused, and the plaintiff then brought this suit in trover.
The defendant pleaded the general issue to the plaintiff’s declaration, and gave notice therewith that he would show—
1. That Walsh, in his life-time, was not the owner or in possession of the goods in question.
2. That he bought the goods in good faith at the store of Walsh, and paid therefor, supposing he was buying them of the surviving partner of Walsh, and was without knowledge to the contrary, and that Walsh did business under a sign and name which would represent a firm, and that the goods were receipted to him in the name of Thomas Walsh & Co.
The trial of the cause was had in the Wayne circuit before Judge Speed, who at the close of the testimony, directed a verdict for the plaintiff, and the defendant brings error. A •careful inspection of the record impels us to affirm this judgment.
The errors assigned are upon the ruling of the court as to the admission of testimony, and the refusals of the court to give the defendant’s requests.
The first question upon this record is, did Thomas Walsh at the time of his death, or at the time the goods were purchased, have a partner? This is placed beyond question upon the record. The party who was his principal clerk, and had been for many years, testified that Walsh had tío partner, and this testimony is not disputed. That fact must be regarded as settled in the negative, and prima facie should dispose of the case.
But the defendant claims that Mr. Walsh did business in such way as led the defendant to believe that he had a partner, and that defendant had a right to act upon such appearances and representations that he had a partner, and did so act.
We have examined the record through for testimony show ing any representations made by Thomas Walsh in his lifetime, or any made by his agent or clerks, to the effect that, at the time these goods were purchased, or for several months previous thereto, Thomas Walsh was doing business in company with some other person or persons, and have found none.
It is claimed that the defendant was misled upon this subject by the name under which Walsh was doing business; that its purport was that he was doing a company business. The undisputed facts, however, preclude any such conclusion.
In the first place, it is matter of common knowledge that in this State there is no statute preventing the deceased when he was alive from doing business in the manner and under the name he did, and that many persons did business in that way under an assumed name which would be appropriate for a firm; and it appears from the testimony in this case that the defendant himself did business in this manner, and under an assumed name, nearly opposite Walsh’s place of business on the other side of the street.
It further appears that, before the transaction was completed out of which the suit arose, the defendant showed knowledge upon the subject, or rather those acting for him in completing the purchase of the goods. The defendant, for the goods he purchased, offered in payment a check made to Thomas Walsh & Co., but this was subsequently changed by the defendant to one running to bearer. This was done on account of the death .of Walsh, and at the request of his former clerk, so that there would be no trouble with the bank when the check was presented. Of course no such change in the check would have been necessary if Thomas Walsh had a partner when he died, and this circumstance, undisputed as it is, would seem to be sufficient to put the defendant on his guard as to the real person with whom he was dealing, or sufficient to lead him to make inquiry.
It appears, further, that the defendant had had dealings several years with Walsh previous to his death; and that after his death, and while the crape was still hanging upon the door of his place of business, which was not over 90 or 100 feet from the defendant’s store, the defendant should make purchases at the deceased’s place of business to the amount of between $3,000 and $4,000, without knowing from whom he was purchasing, and to whom he could legally make payment, seems almost incredible.
The defendant’s manager, Nye, certainly had some knowledge of the situation and of Walsh’s death, and' ordinary business prudence would require that the defendant and his manager should know with whom they were trading after the ■death of Walsh.
Every creditor Walsh left was interested in the property and its disposition, and no person could acquire any title thereto, either legal or equitable, except through administration, the estate being insolvent.
In a state where there is no statute prohibiting the use of ■a name or an abbreviation to do business under other than that of the individual, as in this State, there is no necessary presumption that, when “ S Go.” is made use of after the dealer’s name, he has a partner or partners, or that such title includes more than one person. Robinson v. Magarity, 28 Ill. 423.
The plaintiff’s right to recover was not limited in this case to the goods actually owned by Walsh, but to those the defendant received of the estate, which were held by Walsh, in his life-time for sale on commission, as well. The owners had proved claims for them against the estate before commissioners. Cullen v. O’Hara, 4 Mich. 133; Emery v. Berry, 8 Fost. 483; Campbell v. Tousey, 7 Cow. 64; White v. Mann, 26 Me. 361; Hubble v. Fogartie, 3 Rich. 413; Whit v. Ray, 4 Ired. 14; Sharland v. Mildon, 5 Hare, 469; Edwards v. Harben, 2 Term. R. 596.
There being no delivery or acceptance of such of the goods as defendant claims came to him through the auction sale, he had no more right to detain those from the plaintiff than the others.
We can discover nothing in the record that would enable the defendant to prevail against the claim of the plaintiff, and the direction given by the circuit judge must be sustained.
The judgment is therefore affirmed.
Champlin, J. I concur in affirming the judgment.
Morse, J., concurred with Champlin, J. •
Campbell, O. J., did not sit. | [
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] |
Campbell, O. J.
Johnson sued in trover for the conversion of certain lumber by defendant, who had seized it on attachment in favor of John G. Owen against James H. Rogers. The dates become material.
Rogers had a lumber-yard at Wayne Junction, in Wayne- county, and had been indebted to plaintiff for some years for advances. This debt he had secured from time to time by chattel mortgages not recorded. In January, 1885, this debt had become reduced to about $1,800, and a new mortgage given. Between that time and November 10, 1885, plaintiff had to provide for an additional $500, for which he had become security. On the tenth of November, 1885, Rogers, who had promised to see that plaintiff should be made secure, executed a mortgage to him for $2,300, which was duly recorded, but which, instead of being dated in November, was dated back to January. On December 31, 1885, the $500 for which plaintiff was surety he was obliged to pay. Plaintiff took possession of the yard, and had been in possession several days, when the defendant, who is sheriff of Wayne county, levied on the whole stock, which was worth $4,000, or thereabouts, not subject to but in opposition to the mortgage, upon an attachment in favor of John Gr. Owen for an alleged debt of $506. This debt was incurred during the year 1885, prior to November.
The court below took the case from the jury, and held the plaintiff’s mortgage void, giving no reason for the holding.
Mr. Owen neither sold any goods nor began any proceedings while this mortgage was unrecorded. He sold his goods before it was made, and began his lawsuit after the mortgagee was put in possession. This mortgage was not withheld from record during any period when Owen acted or dealt with Rogers.
It was pointed out in Waite v. Mathews, 50 Mich. 392, in accordance with other decisions before and since, that no one can complain of a failure to file a chattle mortgage for any length of time, unless after its date, and before its filing, or before possession taken under it, the creditor assailing it has dealt with the mortgagor as he would not have dealt had the mortgage been recorded, or else has secured some lien on the property.
"We have repeatedly held that a debtor may always prefer any of his creditors, so long as it is not done with some unlawful or forbidden purpose. He may pay any creditor in full, or secure him in full, and no unpreferred creditor can complain that such preference has been made. Root v. Potter, 59 Mich. 498. As Mr. Owen had taken no security, he was bound to know that Sogers could at any time secure any other creditor if he saw fit to do so.
The only plausible claim set up is that this mortgage was dated back to January. There is no pretense that there was any wrong purpose in this, and it is impossible to see how it could affect a valid mortgage. No instrument takes effect before delivery. This mortgage was not drawn and was not made operative until November, 1885. There was no default in filing it. It could not have been filed before execution, and the law will not allow filing to be dated back. The consequences imposed by the statute of invalidity as to creditors are the penalty attached to failure to file or take possession. This default cannot exist when there is nothing to file.
It is claimed, however, that it is void because given in place of old mortgages, which were not' recorded. As the debt was honest, all that the statute provided as to those old mortgages was that they should be void until filed, - and void against intervening rights. But it did not provide that taking a security honestly, and losing its priority, should prevent the acquisition of a new security which should be valid. All that the law declares is that the unrecorded mortgage shall be void as against creditors, which, as declared in Waite v. Mathews, and the other cases referred to, means creditors who have acquired rights in the interval. Declaring them void merely places parties in the same condition as if they had never existed. It doe3 not create a perpetual inability to give a good security in the future. It was suggested in Waite v. Mathews that a new mortgage would be good with immediate delivery, and that no lapse of time could affect parties not damnified It is not claimed this mortgage would be void if there had been no prior one. If this is so, there •can be nothing in a prior mortgage which is superseded, which can make things any worse. Plaintiff ran the. risk of losing what security he possessed, but that did not prevent him from getting either payment or security good when given.
The judgment must be reversed, and a new trial ordered. The other questions do not become important, as the case was taken from the jury.
Sherwood, J., concurred with Campbell, O. J.
Champlin, J.
In this case there was testimony introduced by the defendant which tended to prove that the series of chattel mortgages given by Rogers to his uncle, the plaintiff in this suit, were kept from the files in the town clerk’s • office by agreement, in order that Rogers might obtain a fictitious credit with persons dealing w.th him. If such agreement was made, and the mortgagee kept the mortgages from the files in pursuance thereof, such mortgages were fraudulent as to creditors who trusted Rogers upon the faith that his property was unincumbered. There was testimony also tending to prove that the mortgage under which the .plaintiff claims was given to carry out the fraudulent agreement to keep the mortgages from record. This evidence should have been submitted to the jury.
The fifth point stated in defendant’s brief, namely, that of estoppel, appears to have been raised for the first time in this Court. There was no such issue raised by the pleadings. 'Where a defendant relies upon an estoppel in pais as a defense to an action, he should give notice thereof under the plea of the general issue. Dale v. Turner, 34 Mich. 405; Whittemore v. Stephens, 48 Id. 573; Warder v. Baldwin, 51 Wis. 457 (8 N. W. Rep. 257); Chit Pl. 509; Hinman v. Eakins, 26 Mich. 80.
I do not think the circuit judge was justified in withdrawing the case from the jury, and I concur with the Chief Justice in reversing the judgment.
Morse, J.
It appears from the testimony in this case that Johnson did not file the mortgages held before the one in controversy was executed, for the reason that the mortgagor, Eogers, requested him not to do so, because it would hurt or .affect his credit, with the promise on the part of Eogers that he would protect Johnson in case it became necessary to ■do so..
• The mortgage in question was made on the tenth day of November, 1885, and filed by Eogers without the knowledge •of plaintiff, who was away hunting. It was dated back as of the first day of January, 1885, to correspond with the mortgage then held by Johnson, and not discharged, and kept off from file in pursuance of the wish of Eogers. Eogers testifies that he executed this mortgage to cover the one of date of January 1, 1885, for $1,800, and an additional $500, for which Johnson had since that time become responsible, and he meant it to embrace the same terms and to bear the same -date as the $1,800 mortgage. It was therefore dated back to the first of J anuary, 1885, understandingly and purposely for some object.
I think that the plaintiff, Johnson, was estopped, as between himself and Owen, from asserting that this mortgage was actually executed on the tenth of November, 1885. He accepted it as it was, and did not claim that its real (bite was different until at the time of the trial. He told oUi.r creditors, who held mortgages on the same property, that his lien was prior to theirs because his mortgage was dated January 1, 1885, His notice of foreclosure, under which he was proceeding to sell the property by virtue of his mortgage, referred to the mortgage as being dated January 1, 1885.
It was stated at the sale, and subsequently to the attorneys of Johnson, by the attorneys of Owen, that the mortgage of plaintiff was void, as against the claim of Owen, because the mortgage was dated January 1, 1885, and not filed until November 16, 1885, and the goods sold by Owen to Rogers, the mortgagor, were purchased by Rogers between the first of January, 1885, and the date of filing. No answer was made to this, and nothing hinted even that the date of the mortgage, as it appeared upon the face of the instrument, was not the true date of its execution, although Johnson was present at the sale, and after the statement was made by Brooks, Owen’s attorney, ordered the sale to proceed, stating that he would stand between íhe buyers and all harm.
If the mortgage had been actually executed at the time it bore date, it would have been void as against the claim of Owen. Root v. Harl, 62 Mich. 420; Fearey v. Cummings, 41 Id. 876; Wallen v. Rossman, 45 Id. 333; Waite v. Mathews, 50 Id. 392.
Here the mortgagor and the mortgagee make and accept a mortgage dated January 1, 1885, anl so file it. The mortgagee continues up to the day of the sale of the property to assert it as a mortgage of that date, and never denies it, or takes any means to undeceive those who are acting under the honest belief that it bears its true date. Acting upon this belief, so induced by the plaintiff in this suit, the defendant levies upon the property in opposition to the mortgage, to-enforce the claim of Owen, which is valid if the mortgage is dated correctly. Then, after the levy is made, the plaintiff sues in trover, and upon the trial, says, in effect:
“It is true that I led you to believe that my mortgage was^ executed in January, 1885, but I lied to you both in actions- and words. My mortgage, in fact, was not executed until after you sold your goods, ■ and therefore your claim is not good against my mortgage, and you must pay me not only for the goods, but costs for being such a fool as to act on the truth of my acts and statements.”
A plainer case I have not seen for the application of the-most just doctrine of estoppel. Not only did the plaintiff remain silent when in conscience he ought to have spoken, but it must be considered that he also took active measures to carry the idea to all that his mortgage was executed on the day it bore date. See Mich. Paneling Co. v. Parsell, 38 Mich. 475, 480; Dann v. Cudney, 13 Id. 239; Meister v. Birney, 24 Id. 435, 440; Ganong v. Green, 64 Id. 488; Bigelow, Estop. 473.
But the action in this case was in trover, and the estoppel was not pleaded, and therefore could not avail the defendant. If it had been pleaded, the action of the circuit judge in directing a verdict for the defendant would have been a correct disposition of the case. As the case was tried, however, the question of the validity of the mortgage as against creditors should have been submitted to the jury.
I therefore concur in the reversal of the judgment. | [
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Morse, J.
The plaintiff rented to the defendants, Losey and Burton, for a period of five years from and after January 1, 1880, a certain saw-mill in Union City at the rate of $500 per year. If the average of the logs in the mill-yard did not reach 800,000 feet each year, then the rent was to diminish as the $500 was to 300,000 (for example, if there were 200,000 feet only, the rent was to be $333.33j. Plaintiff agreed to—
“New roof the mill, and repair the flume, when necessary,, doing the work expeditiously, so as to not interfere with the running of the mill longer than was necessary.”
He was also—
“ To repair the foundation of the mill, should it give way, not including, however, the temporary underpinning of the machinery below, or that under the slab-pile outside, or the board-way.”
Defendants were to leave the machinery belonging to plaintiff in good repair at the end of the five years, allowance being made for natural wear and tear, and keep the mill and machinery in order at their own expense.
Defendants occupied the mill under this agreement until May 15,1884, when they quit and abandoned the premises, claiming that plaintiff had not kept his covenants as to repairs. At the end of the first two years there was a settlement between the parties, and all accounts in relation to the mill closed and determined for that time.
The plaintiff brought suit for the amount of the rent due according to the terms of the contract, claiming $1,500 for such rent. He also averred negligence of the defendants in running the mill, and their failure to care for and keep the same, and its machinery, in repair, and claimed damages in this respect of $1,000; also $200 damages by reason of the defendants’ failing to give him proper accommodations for sawing his lumber, lath, and other timber according to the agreement, which provided that defendants should saw all logs for plaintiff, hauled from his lands, at certain specified prices.
The defendants pleaded the general issue, and gave notice that the amount of the logs in the yard did not reach 300,-000 feet in any year; that the plaintiff failed to keep his contract, in that he neglected and refused to put a new roof on the mill, to repair the flumes, or the foundation of the mill; and by reason of this neglect and refusal the mill became utterly worthless and useless to defendants, and the waterpower was lost, to their damage of $3,000; also that the foundation of a portion of the mill gave way, by which they also sustained damage.
Upon a trial before Hon. Russel R. Pealer, with a jury, in the circuit court for the county of Branch, the defendants recovered judgment in the sum of $771.81.
The plaintiff brings error.
It is evident from the record that but a very small portion of the evidence taken upon such trial is contained in the bill of exceptions; nor does said bill anywhere aver that all the testimony is set forth in the record upon any given point.
This fact of itself disposes of some of the errors alleged. For instance, it is claimed that the court erred in admitting the testimony of two witnesses, Clark and Kerr, as to the value of water-power at Union City, when they lived at Cold-water, and substantially admitted that they knew nothing of the value of water-power at Union City, where this mill was located, and had never seen the water-power in question. One testified that the use was worth $5 per day, and the other that it would be worth from $4.50 to $5.
We find in the charge of the circuit judge the following:
“ In considering the question, you have the value of the use of the water-power. This is a matter for you to determine from all the evidence. You have the testimony of the plaintiff and defendant themselves, that it is worth from $6 to $7, and the testimony of other witnesses fixing a different range.”
The record does not purport to give all the testimony of the plaintiff. On the contrary, it plainly appears that only a small portion of his evidence is contained therein. It must therefore be presumed, considering this charge of the judge, which is not excepted to or questioned, that the plaintiff himself testified that the water-power was worth from six to seven dollars a day. If so, he cannot complain because Clark and Kerr were permitted to swear it was worth less. Nor, if he testified on his own behalf upon his direct examination that it was worth this amount, can he complain that the defendant was permitted to testify as to its value. From the record we cannot tell when the plaintiff testified to the value of the use of the water-power, and, as we cannot presume error, we must hold that the objection to the defendant Losey’s evidence of such value was properly overruled.
The main allegations of error are based upon the instructions of the court to the jury, and his refusal to give certain requests asked by plaintiff’s counsel.
The contention is that the defendants had no right to abandon the premises because of the plaintiff’s neglect to repair, and that they could not recover for the damages sustained by them while in the use of the mill, because of such neglect; that it was their duty in case plaintiff did not new-roof the mill, ánd repair the flume and foundation, to repair the same themselves, and charge the expense thereof up to the plaintiff in reduction of the stipulated rent; also that the value of the use of the water-power was not the proper measure of the damages suffered by the defendants.
TJpon the trial it was conceded that there were 300,000 feet of logs in the mill-yard each year, and the issue in that respect is not here.
It appears beyond question that the flume was defective. The plaintiff testified that, when they settled for the first two years, an allowance was made to defendants for the damages resulting from the defects in the flume. He also admitted that in the fall of 1882 defendant Losey asked that the mill be repaired, but that he failed to repair it.
The testimony on the behalf of the defendants tended to show that they lost the use of the water-power for a large number of days, by the plaintiff’s not making repairs upon the flume, and that the water had become perfectly useless, and that, if the plaintiff had repaired the flumes, so that defendants could have had the full benefit of the water-power, the use of it would have been worth $600 or $700 per year; that they had to put in steam-power in order to run the mill.
The question to be determined on their theory is, what were the defendants’ rights and duties in the premises? Had they the right to abandon the premises because, without the repairs covenanted by the plaintiff, the water-power was useless, and to recover damages for the difference in the value of its use between what it would have been if the repairs had been seasonably made, and what it was without the repairs, as the circuit judge instructed the jury; or was it their duty, when the plaintiff refused to make the repairs, to go on and repair the flumes themselves, and charge the expense thereof, and the value of the time the mill remained idle while the work was going on, to the plaintiff?
What the defendants contracted for was the use of the saw-mill, and the saw-mill was dependent in its use upon the water-power which propelled it. The plaintiff covenanted to keep the flumes, through which the water passed to the mill, in repair. If he neglected or refused to do this when notified, and on account of such neglect the water-power was destroyed, and the mill thereby rendered useless to the defendants, the consideration of the agreement or lease failed, and the defendants were justified in abandoning the premises, and the stipulated rent could not be recovered after such failure of consideration. Tyler v. Disbrow, 40 Mich. 415; Wood, Land. & Ten. § 377 ; Hinckley v. Beckwith, 13 Wis. 34.
Nor were the defendants bound to make the repairs themselves. It was the duty of plaintiff, under the agreement, to make these repairs, without which the premises were of but little or no value for the use defendants required, and to which they were entitled under the contract. The defendants had the right to hold the plaintiff to the ordinary responsibility of a party failing to perform his agreement, to wit, to pay the damages caused by such failure. We can see no difference in this respect between this and any other contract. Hinckley v. Beckwith, 13 Wis. 31, 17 Id. 413; Myers v. Burns, 35 N. Y. 269; Hexter v. Knox, 63 Id. 561.
The rule of damages was properly laid down by the court.
The failure of the water-power was the grievance complained of. The . defendants were entitled to the use of it, as it would have been had the flumes been kept in repair, for saw-mill purposes. The value of the use of such waterpower for such purposes was shown by witnesses. We do not consider that such value was speculative or uncertain, or that showing such value and allowing it as the basis of damages was in effect permitting the profits of the saw-mill to be computed in estimating the damages. The contract or lease itself shows that this water-power had a rental value, and we can see no serious difficulty in .the way of ascertaining to a tolerable and sufficient certainty the value of this use, to which the defendants were entitled by their agreement.
It was also conceded on the trial that there were logs in the mill-yard ready to be sawed, so that work was at hand for the mill, if the water-power was available.
The judgment is affirmed, with costs.
Sherwood and Champlin, JJ., concurred.
Campbell, O. J., did not sit. | [
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Sherwood, J.
In this cause the defendant is an attorney practicing at Muskegon.
In 1874 the steam-tug Hunter became indebted to one Tanner for labor to the amount of $14, who placed the claim in the hands of the defendant for collection, under an agreement with him that he would not charge Tanner more than three or four dollars, besides the proctor’s fee, for his services in prosecuting the claim.
Id pursuance of the agreement the defendant filed a libel against the boat, and obtained a decree in the district court of the United States, in admiralty, for the amount of the claim, which he collected, and proctor’s fees to the amount of $10. Tanner afterwards assigned his claim to the plaintiff, who presented it to the defendant for payment, and thereupon the defendant tendered to the plaintiff $10, and presented a statement of his charges for services and disbursements in making collection of the claim, for allowance. The plaintiff declined to receive the amount tendered, or recognize the defendant’s claim made against the collection, and brought this suit against the defendant in justice’s court, and obtained a judgment for $14 damages, and $8.40 costs of' suit.
The defendant appealed to the circuit court, where a second trial was had, and the plaintiff there recovered the-amount of the tender, and the defendant was awarded his costs of suit, and attorney fee of $14.
The plaintiff brings error, and relies upon 15 exceptions taken to the proceedings in the case for reversal of the j udgment. All of these have been seen and examined, and, upon an inspection of the record, we find none of them well, taken.
The judgment will therefore be affirmed, with costs.
Champlin and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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Champlin, J.
On and previous to September 8, 1885, one James Koehane was the owner of a building situated in the city of Detroit, on Livernois avenue, opposite the car-shops, which he had rented to one Mary Rook, who kept a hotel therein. On the day aforesaid this lease had three years and seven months to run before it expired.
Mrs. Rook owned the furniture in the hotel, and on the eighth day of September, 1885, she assigned her lease of the hotel to Amos Kidder for the unexpired term, and at the same time she leased the furniture in the hotel to said Kidder for the same' period. The record is very vague and unsatisfactory, and it is difficult to get at the exact facts from it. It does not show to whom Kidder was to pay the rent accruing under the lease from Koehane; but I infer that he was to pay it to Koehane, and not to Mrs. Rook. Kidder agreed to pay Mrs. Rook $15 a month for the use of the furniture, and Koehane became his guarantor therefor by the following instrument:
“I, the undersigned, James Koehane, now of the city of Detroit, do hereby agree to pay Mrs. Mary Rook the sum of fifteen dollars per month for furniture leased from Mary Rook to A. Y. Kidder, in a building owned by James Koehane, situated now in the city of Detroit, Livernois Ave., opposite car-shops. Said promise to pay is only as long as Mr. A. Y. Kidder shall have possession of the above-mentioned place. After that the furniture mentioned in a certain inventory shall be returned to Mary Rook in as good condition as when taken, only the worse of natural wear and tear excepted. Said goods to be accepted by Mary Rook when notified.
“James Koehane.
“ Mart Rook.
“Dated this eighth day of September, A. D. 1885, in Springwells.”
On the twenty-seventh day of October, 1885, Mary Rook sold the furniture in the hotel to plaintiff, who is her daughter, and assigned to her the lease thereof from Kidder, and the rents accruing thereon, and thereafter the rent was paid by Koehane to plaintiff.
This action was commenced in the latter part of April, 1886. The declarat on avers that the plaintiff, on the twentieth day of April, 1886, was lawfully possessed, as of her own property, of certain personal property, describing the same, and then alleges that the defendants, on the day aforesaid,—
“Wrongfully and tortiously, with force, took the possession of the before-mentioned articles of personal property, the property of the plaintiff, from the possession and control of the said plaintiff, against the plaintiff’s will, and converted and disposed of the said property to their own use, and have not delivered the same or any part thereof to the said plaintiff, although often requested so to do, and have heretofore-wholly refused to return the same to the said plaintiff, but have, on the contrary, made way with, sold, and made use of the said before-described property, denying any right, title, or possession of the plaintiff in or to the same,” to her damage, etc.
While we are unable to classify this declaration with any of the prevailing forms in use for torts, it is quite evident that the gist of the complaint is the in j ury to plaintiff’s possessory rights in the property described. There was no demurrer to the declaration, but issue was joined thereon by a plea of the general issue, and notice of justification under an execution in favor of William E. Moloney against one Margaret Book, and that defendant Stuart was a constable, and the execution issued the seventeenth, day of April, 1886, and was placed in his hands to be levied upon the goods and chattels of one Margaret Book, and that they were, at the time of such levy, the goods and chattels of Margaret Eook, and not of the plaintiff.
Upon the trial of the cause the plaintiff was sworn, and testified in her own behalf. During her examination, the following occurred, which we extract from the record:
“Question. About the first of April last, will you state what occurred about the rent?
“ Mr. Donnelly. I object to it unless it was in the presence of the defendant.
“Mr. Berry. I wish to show the termination of the lease.
“ Court. You cannot introduce her conversation with a party not a party to the record. The fact of the termination is one thing; the fact of the conversation is another.
“ Mr. Berry. I offer to prove by the witness that about the first of April Mr. Koehane, the guarantor of the rent, came to this plaintiff, and told her that he wished to terminate the lease, and that she agreed to it; that she then went to Mr. Kidder, and told him that Mr. Koehane wished to terminate the lease, and he said he could not give up possession at that time, because he was in possession under a levy under an officer of one of the defendants in this case. We wish to show that the lease was terminated at the time of the levy; that Koehane came to her, and said he had sold out the hotel, and Mr. Kidder, the tenant, was going out, and she should go and get the furniture; that she went to Kidder, and demanded the furniture, and he said he could not give up the furniture, because he was in possession under the levy.”
The defendants objected to this testimony, and it was excluded by the court.
The testimony should have been received. It had a tendency to show that plaintiff was entitled to possession. She had a right to show that the lease of the furniture was terminated, and this testimony tended to prove that it was terminated t>y consent of both Mr. Kidder, who did not claim to hold under the lease, but under the levy, and by Mr. Koehane. By excluding the testimony going to show the termination of the lease, the plaintiff was prevented from establishing her right to the possession.
This constitutes the principal error relied upon in the case. The judgment will be reversed, and a new trial ordered.
The other .Justices concurred. | [
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] |
Morse, J.
This is an action of replevin to recover possession of a planer and other machinery in a planing-mill in the city of Escanaba, in Delta county.
The defendant is one of the lessors of the mill, and the plaintiffs claim the property by virtue of a chattel mortgage executed by Harris Brothers, the lessees of the mill.
On the first day of March, 1878, Nelson Ludington and others executed and delivered to the defendant,- John F. Oliver, and Frederick O. Clark, a paid-up lease for the term of seven years of the premises upon which said planing-mill was sduated. The lease contained an agreement that Oliver and Clark should have the—
“ Eight to remove from said premises all machinery, shingle-mills, and improvements made for the managing of a mill located upon said premises after the date of this lease, and may remove the same after the expiration of said lease.”
On the twenty-fourth day of March, 1880, Clark and Oliver made a lease of a portion of the premises described in their lease from Ludington to one Wells M. Euggles. The lease to Euggles covered the ground upon which the planing-mill was located. This lease was recorded in Book E of Deeds, in the register of deeds’ office for the county of Delta, on the fifth day of October, 1880. The lease was for the term of six years from and after December 19, 1879. It contained the following provision:
“And it is understood that the parties of the first part [Clark and Oliver] reserve,and shall at all times have, possess, aud hold, a lien upon all improvements made on said premises by the party of the second part [Euggles], as a security for any unpaid balances of money due under this contract, either as rental' or unpaid taxes, and said balances being deemed and to be treated as balances of purchase mouey, and which lien may be enforced against such improvements in like manner as liens conferred by chattel mortgage are, or may be entitled to be, enforced under the laws of the State of Michigan.”
The lease also contained a clause authorizing the lessee to remove from said premises all machinery located upon the same by him, and provided that he might remove the same after the expiration of his lease, in case the rent and taxes had been paid;—
“ All said machinery so put in by said second party to be considered and treated by both first and second parties as chattel property.”
Euggles only paid $55 of the rent, which was stipulated to be $200 for each of the first two years, $300 for each of tHe next two years, and $400 for each of the last two-years.
On the seventh day of October, 1881, Buggies assigned all his interest in the lease to the Harris Brothers, said Harris Brothers assuming all liabilities under the same to Olark and Oliver for unpaid rent and taxes. This assignment was also-recorded in a book of deeds in the register’s office.
The machinery replevied was placed in the mill by Harris Brothers, after the assignment of the lease to them. It was firmly and substantially affixed to the mill, and was so placed for the purpose of carrying on the planing-mill, being bolted down through the floor and into the joists and timbers upon which the floor of said mill rested, and otherwise fastened so-as to make it substantial in its operation by steam-power, and permanently affixed to said building, so as to require the disconnecting and loosening of bolts and other fastenings by which it was affixed to the building before it could be removed. It was put in between the first day of October, 1881, and the-thirtieth day of November in the same year
On the last-named day Harris Brothers made a chattel mortgage covering this machinery to one John Semer for $1,000. On the twenty-fourth day of November, 1883, there was due upon this mortgage the sum of $631.62, and on that day Semer assigned this chattel mortgage to the plaintiffs in this case.
Harris Brothers also executed a second chattel mortgage upon the same property to one Wallace, who on the twenty-second of January, 1883, assigned the same to plaintiffs. At that date there was $900 due upon it.
August 22, 1884, Harris Brothers also mortgaged this machinery to plaintiffs for $500. These mortgages were all renewed from time to time in accordance with the statute.
The lease from Ludingto’n and others to Clark and Oliver was recorded in Book E of Deeds, in the register of deeds’ office for Delta county, June 1, 1880. At the time of the trial there was admitted to be due and unpaid for rent and taxes under their lease the sum of $1,650.19 from Harris Brothers to Clark and Oliver.
When the writ was issued in this suit, the defendant,. Oliver, wa3 in possession of the property on account of the failure of Harris Brothers to pay said rent and taxes, having taken possession under a clause in said lease authorizing hi m to do so. When he took possession, this machinery was still affixed to said building as heretofore stated, and at the time of the service of the writ he held the possession of the same-“as security for said rent, or so claimed to hold it,” acting for himself and said Clark. When the property was taken by the sheriff under the writ of replevin, the machinery had been disconnected from its fastenings by the said Oliver for the purposes of removal, but was still in the building.
The value of the property was agreed to be $1,200.
The plaintiffs made a demand for the property before commencing suit.
Buggies used the property as a planing-mill and grist-mill before his assignment to the Harris Brothers.
The facts as above^stated were stipulated upon the trial.
The circuit judge instructed the jury that the machinery did not come under the clause of the lease which gave Clark and Oliver a lien upon the improvements; that a distinction was made in the lease between machinery and improvements,, which showed the intention of the parties that the term “improvements” should not cover or embrace the machinery ; that the machinery, under the agreement of the parties, must be considered personal property, notwithstanding the-manner of its fixture to the building; that as, at the time Harris Brothers gave these chattel mortgages, Clark and Oliver had not taken any steps to reduce this property to their possession, and Harris Brothers were in possession, they had a right to mortgage or sell this machinery, and Clark and Oliver would have no remedy; that, if Clark and Oliver had any lien upon the property, it was the same as an unrecorded chattel mortgage, and could not aid them in this case; and that they must therefore find a verdict for the plaintiffs.
The defendant brings the case here for review on writ of error.
The circuit judge was right in holding the property replevied to be, under the circumstances, personal property. The parties to the lease, Olark and Oliver, lessors, and Buggies, lessee, expressly stipulated in the instrument that all machinery put in by the lessee should be treated as “chattel” or personal property. Harris Brothers were the assignees of Buggies, and the machinery put in by them was covered by this stipulation.
When the parties have thus agreed to treat this machinery as personalty, the manner and method of its fixture to the building becomes unimportant.
Being personal property, this machinery was subject to chattel mortgage the same as any other personalty.
But the defendant claims that, by reason of the clause as to removal in the lease from Clark and Oliver to Buggies, this property could not be removed from the building until the rent and taxes were paid; that a lien under the lease existed upon the machinery for unpaid taxes and rent, which lien was superior to the chattel mortgages, and must be first satisfied. He claims that the manner of affixing the machinery to the building,- in the absence of any agreement, gave the said machinery the appearance of realty, and that the agreement constituting it personalty is found in the lease, and the same instrument which gives to Clark and himself a lien upon it, and forbids its removal from the premises, until the rent and taxes are paid; that the mortgagees had notice from the character of the attachment of the machinery to the building that it was realty, and, if they ascertained that it was personalty, they must obtain their knowledge from the lease, which would also give them notice of the lien.
This machinery, before it was placed in the mill, was personal property. It therefore never ceased to be anything but personalty, as its attachment to the building, by the express agreement of all the parties interested, did not change its character. It was therefore always to be treated as personal property, and to be governed by the rules applicable to such property. Whether the lien in the lease covered this machinery under the term “improvements” or not, no person was obliged to go to this lease to determine whether the machinery was personal or real estate. And the record of the lease was no notice to third parties of the existence of such lien. They were not bound to search the record of deeds to ascertain whether or not this personal property was encumbered.
We also think the circuit judge was right in holding that Clark and Oliver, at the time these mortgages were given, having taken no steps to reduce the property to possession under the lien claimed by them, and Harris Brothers being in possession, they (Harris Brothers) had a right to mortgage the machinery, and Clark and Oliver would have no remedy. Their lien was not as binding as an unrecorded chattel mortgage, under the decisions of this Court. See Holmes v. Hall, 8 Mich. 66, and Dalton v. Laudahn, 27 Id. 529
The claim of the defendant’s counsel upon the argument that—
“ The moment the property was permanently affixed in the manner it appears it was attached, there vested in the lessors a present interest, permanent and unchangealle, and a conditional possession, which could not be changed in its character, namely, in its permanent affixing [except upon the conditions upon which there might be a removal], and that the lease, therefore, gave them, in effect, a pledge of the property in possession,”—
Is not tenable under the circumstances of this case.
As before said, and under the numerous decisions of this Court, cited by both counsel in their briefs, the manner and character of the attachment of the machinery to the building cuts no figure in the case, and cannot weigh or have any control as against the expressed intention of the parties.
The rights of Clark and Oliver under this lease cannot be enlarged by the method of affixing the property in question to the mill.
The judgment of the court below is affirmed, with costs.
Sherwood and Champlin, JJ., concurred.
Campbell, O. J., did not sit. | [
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] |
Champlin, J.
The plaintiff and defendants were unsecured creditors of the Detroit Tag & Transit Company.
The plaintiff is a corporation, and the defendants are copartners doing business under the firm name of Teuton, McWilliams & Co.
The indebtedness to the plaintiff was evidenced by two promissory notes, due on the sixth and eighth of January, 1886, respectively, for $1,000, and payable at the Detroit National Bank.
The plaintiff claims that on the eighth of January, 1886, it purchased the property in dispute, — consisting of one 12-inch rotary steam-pump, built by the Silsby Manufacturing Company ; seven pieces of suction pipe; one strainer; one slip-joint; one steel portable boiler, built by the Eagle Iron Works; one box of tools and connections, complete, used with said boiler, — and gave in payment therefor the two promissory notes above mentioned.
A bill of sale of the property was executed, and delivered to plaintiff, in the following form:
“ Detroit, January 8, 1886.
“Buhl Iron Works,
, “Boughtof Detroit Tug and Transit Co.
1 12-inch rotary steam-pump, with suction pipe, strainer, tools, and connections, complete,
1 steam-pump, boiler, and outfit, complete, now stored
in warehouse foot of 3d street,........................$2,006
“ Received payment, January 8, 1886.
“Detroit Tug and Transit Co.,
“Per S. A. Murphy, President.”
The property was stored in a warehouse owned by Chesebrough & Co.
■ It was further claimed, that the Morton Truck Company was ordered to send a truck to the warehouse and deliver the property to the Buhl Iron Works at its shops on Third street.
At the time the bill of sale was made out, the Detroit Tug & Transit Company was pretty well in debt to other parties, and among them the defendants, Teuton, McWilliams & Co.
It further appeared that the transit company had the warehouse rented for two years, and the pumps and boiler had been put in there at the close of navigation, and the transit company stored them there when not in use. Both pump and boilers were on wheels, and could be readily removed from the warehouse. Ohesebrough & Co. had a claim for storage on this property, at this time, for $383.90, but this amount was disputed by the transit company. When the Morton Truck Company went to the warehouse for the property, Mr. Ohesebrough refused to deliver it, for the reason that Ohesebrough & Co. had a claim for storage amounting to $383.90, and they did not deliver it.
The property remained in the warehouse, and on the eleventh day of February, 1886, the defendants commenced a suit in attachment against the Detroit Tug & Transit Company, and attached the property covered by the bill of sale. Judgment was regularly entered September 16, 1886, and execution issued, which was levied upon the same property, and it was advertised and sold, subject to the charges of Ohesebrough & Co. for storage, to defendants. The defendants paid the warehouse charges, and afterwards removed the property, and rented it to other persons.
It further appears from. the testimony that neither the Detroit Tug & Transit Company nor the Buhl Iron Works notified the warehousemen that the property had been sold by the one, or purchased by the other.
There was testimony tending to prove that the bill of sale was given as security for the indebtedness of the Detroit Tug & Transit Company to the Buhl Iron Works, and that the original indebtedness was never discharged; that it was arranged and agreed that the Detroit Tug & Transit Company could have the property back on paying the Buhl Iron Works the said indebtedness; that a settlement was had, and by agreement made with Mr. Murphy, the president of the transit company, the property was reconveyed, not to the Detroit Tug & Transit Company, but to the Detroit Tug & Wrecking Company.
This agreement was perfected about the time the suit in replevin in this case was commenced, although the understanding had existed for a long time previously.
The Buhl Iron Works, before bringing suit, made demand of the defendants of the property, but did not offer to pay any warehouse charges.
The court instructed the jury that if they were satisfied that the bill of sale was made in good faith, and without any design or intent to defraud the defendants, or other creditors of the tug company, the plaintiff was entitled to recover, subject to the payment of the lien of the -warehousemen; that even though the so-called bill of sale was a mortgage, yet as the property when it was sold to the Buhl Iron Works was in the hands of a third party, namely, in the hands of a warehouseman, it was not necessary to file the bill of sale in the clerk’s office, and that therefore the question of notice was not raised.
He, however, permitted the defendants to submit to the jury the following question:
“Was the transfer of the property to the Buhl Iron Works a sale outright, or was it given as security?”
The jury retired, but returned into court, and said they could not agree upon the special question. The court then withdrew the question from them, and they thereupon returned a verdict for the plaintiff, subject to a lien in favor of the defendants for the storage claim. The amount of such lien they did not find.
The defendants’ counsel, previous to the charge of the court to the jury being given, requested the court to instruct the jury as follows:
“1. If the jury find, from the evidence, that the transfer of the steam-pump and boiler in question was as a security for the indebtedness, then the right of the Buhl Iron Works is that of a mortgagee, and the instrument should have been filed in the city clerk’s office, and, unless it was so filed, defendants are entitled to recover.
“2. The jury is further instructed that, even though the paper purporting to transfer the pump and boiler to the Buhl Iron Works may be in form a bill of sale, yet it may be shown by parol testimony that the transfer was intended as security. The surrender of the notes (if they were surrendered) on the making of the bill of sale is not conclusive that it was a sale.
“3. If the Buhl Iron Works retained its claim against the Detroit Tug and Transit Company, and did not discharge it therefrom, and took the bill of sale with the understanding that, on the payment of the two notes and the open account, the Detroit Tug and Transit Company could have the pump back, then you may find that the transfer was given as a security.
“4. You are further instructed that the testimony given in the case would warrant .you in finding that the bill of sale was given as a mere security, and you may consider all the circumstances of the case in arriving at your verdict.”
The legal points involved in the case will be cl earer if I quote two sections of our statute relative to fraudulent conveyances.
Section 6190, How. Stat., enacts:
“ Every sale made by a vendor of goods and chattels in his possession, or under his control * * * [See Cooper v. Brock, 41 Mich. 491, 492], unless the same be accompanied by an immediate delivery, and to be followed by an actual and continued change of possession, of the things sold, * * * shall be presumed to be fraudulent and void, as against the creditors of the vendor, * * * or subsequent purchasers in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale, * * * that the same was made in good faith, and without any intent to defraud such creditors or purchasers.”
Section 6193, IIow. Stat., provides:
“ Every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession, of the things mortgaged, shall be absolutely void, as against the creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the clerk of the township or city clerk of the city * * * where the mortgagor resides,” etc.
These sections of the statute are intended to provide against two classes of frauds. The first section relates exclusively to absolute sales and assignments; and the latter, to conveyances intended as security merely. In the case of an absolute sale, where there is no immediate delivery and actual and continued change of possession of the property sold, the sale is presumptively fraudulent merely, as to creditors; which presumption becomes absolute, unless the purchaser makes it appear that the sale was made in good faith, and without any intent to defraud creditors.
Under the section last cited, the mortgage, or conveyance intended as security, of property, 'where there is no immediate delivery and actual and continued change of possession, is actually void as to creditors who have obtained liens upon the property, or who became such after the giving of the security, unless such conveyance is filed as provided in the statute. Under this section the question of good faith and intent is immaterial.
Whether, therefore, the bill of sale from the Detroit Tug & Transit Company to the Buhl Iron Works was an absolute sale, or a mere security for debt, was one of great importance, as it respected the rights of the parties. If it was an absolute sale, good faith, and absence of intent to defraud creditors, would have excused immediate delivery; but if a mortgage, without immediate delivery- or filing it was void as against defendants.
The court, however, charged .the jury that it was immaterial whether it was an absolute sale or a mortgage, because^ tbe property being in the hands of a warehouseman, no immediate delivery in either case was necessary. In this view he regarded the possession of the warehouseman as the possession, not of the vendor, but of a third party.
This was error. 1 The warehouseman was not such a third party as dispensed with delivery and actual change of possession. The vendor had control of the property while it was stored in the warehouse. The warehouseman, in one sense, was an agent of the vendor, and his possession was that of his principal. To constitute a,change of possession, the warehouseman must at least be notified of the sale or security, and he must thereafter hold it for the vendee or mortgagee. Wheeler v. Nichols, 32 Me. 233; Blackb. Sale, 28; Bentall v. Burn, 3 Barn. & C. 423; Cushing v. Breed, 14 Allen, 376; Boardman v. Spooner, 13 Id. 353; Appleton v. Bancroft, 10 Metc. 236; Wood, Frauds, § 338, Browne, Frauds, § 318.
The point, hitherto, has been only inferentiallv passed upon by this Court. In Sheldon v. Warner, 26 Mich. 403, 407, it was contended that, when'the mortgagee got his mortgage, the property was actually out of the possession of the mortgagor, and in that of the boom company, and that thereafter no change of possession or delivery was needed to enable him to hold against third parties. The Court said;
“ But whatever view of this point may be admissible where a party other than the mortgagor has a hostile, or complete and absolute, possession, a possession which excludes the exercise by the mortgagor of control, and disables him from doing anything tantamount to an actual delivery, it appears to me that, in a case circumstanced as this is, there is no room for raising the question.
“ The possession which the boom company appears to have had up to the time of the agreement with the defendants was measurably that of Burt. The nature of the property made it necessary to handle and move it through the action of this company. But whatever they did was not done strictly in the exercise of any dominion over the property. Their doings were not in contravention of any right of property, control, or possession of Burt [the mortgagor], but were subordinate and intended to be subservient to his authority and purpose. They did not hold adversely to him, or independent of him. In a limited sense they were his agents; and, so far as the nature of the property and its position permitted a change of possession, the custody of the boom company was no obstacle to a change from Burt to the plaintiff.”
Carpenter v. Graham, 42 Mich. 191, was a case of an absolute sale of goods stored in a warehouse. The vendors gave a written bill of sale, and notified the warehouseman of the sale. He was also notified by the purchaser, and agreed thereafter to hold the goods for the purchaser. It was held that this was a sufficient delivery and change of possession of the property, as against an execution creditor of the vendors.
These cases, and those referred to in the case last-cited, settle the doctrine that the delivery must be such as the articles are capable of, and, if in the possession of an agent, such agent must be notified of the sale, and, unless he consents to act as the agent of the vendee or mortgagee, the property ought actually to be taken possession of by the purchaser or mortgagee, for the agent cannot be permitted to hold them as agent of the vendor or mortgagor. To hold that a person may place his property in the hands of his agent, and then, by secret conveyances, bid defiance to his creditors, would afford an easy evasion of the statute, and promote the evils it was intended to prevent.
When it is said that a sale or mortgage of goods in the hands of a third person is good without an actual delivery, it must be understood as referring to cases where such third person is in possession and holding adversely to the vendor or mortgagor, so that no better delivery can be made.
This was the case in Nash v. Ely, 19 Wend. 523, cited on plaintiff’s brief. Some text-writers have failed to notice the distinction, and have laid it down broadly, from the language used by Chief Justice Nelson in that case, that, if the pur chaser or mortgagee finds the property in the possession of a third person when the sale or mortgage is made, he may suffer it to remain until he chooses to take the personal charge of it. And this case has been followed in Goodwin v. Kelly, 42 Barb. 194.
I do not intend to be understood as holding that the consent of the agent or bailee to hold the property for the. purchaser or mortgagee is essential to a valid delivery. If he is notified of the transfer, he will cease to hold as the agent of the vendor, and, if he still retains possession, he will become the agent of the vendee by operation of law. Hodges v. Hurd, 47 Ill. 363.
' The facts of this case do not bring it either within the reason or authority of those cases of grain or other commodity in a warehouse, which by the usages of trade, in commercial transactions, is treated as delivered by passing from vendor to purchaser the written evidence of title and ownership. The property sought to be sold and conveyed here were not articles of trade, but parcels of property designed for use, and which had been used by the owner in carrying on its business, and which had been stored in the warehouse for future use, when the season when it could be employed should again open.
In this case there was no such delivery and change of possession as the statute requires. The warehouseman was not notified of any sale by the transit company to the Buhl Iron Works. The property remained in the warehouse more than a month after the bill of sale before it was attached; and, so far as creditors knew, or had the means of knowledge, it remained the property of the Detroit Tug & Transit Company; and, so far as Chesebrough & Co. knew, they were holding it subject to their lien for storage for the Detroit Tug & Transit Company.
Under the testimony in this case, the defendants were entitled to the first, second, and third requests above quoted.
The fourth request was properly refused. The sufficiency of the testimony to warrant a finding Í3 for the jury, and it would be error for the court to instruct them in the manner requested where there was any conflicting testimony.
The judgment is reversed, and a new trial ordered.
Sherwood and Morse, JJ,, concurred.
Campbell, C. J., did not sit. | [
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] |
Campbell, C. J.
This proceeding, which, for reasons not explained, has been delayed on the trial of the issues and return to this Court much longer than the parties should have kept it, now comes up on the judge’s findings for judgment. As now put in shape, it shows this rather peculiar state of facts: In the period between 1871 and 1881 this district, which was then one of four in the town, had its boundaries changed more than once; but just how far these changes affected all, or only a part, of the rest, does not appear. Since 1881 it has not been changed.
On May 23, 1881, the township board of school inspectors proceeded to what they have called a “ reviewing ” of the different school funds, fixing each district’s credits with the treasurer, and giving relator credit for $215. The statute does not use this phrase, but it requires, when changes are made in school districts, that as soon as may be the board shall apportion the property and moneys of the divided district among the several districts erected, according to taxable property. This process may sometimes be confined to the condition of one district; but it is evidently possible that occasions may arise for a more general recasting of districts as population changes, or other events require. And we conceive it is also possible, where this duty has been delayed after successive changes, that some general reapportionment may become desirable or necessary, and at some time or other should be made.
In the absence of records or facts to the contrary, we must assume that the board met to perform what they supposed to be a legal duty, and it is easy to see what they aimed at. There is nothing before us to show any illegality in their mode of procedure, or any unfairness or clandestine conduct. And in the action of such a local board we have no right to criticise formal points and unimportant phrases, when they are performing duties belonging to plain men acting in the common interest. Counsel refer to some lack of legal regu larity, but we have not before ns what took place on the trial, and we should not meddle with the concerns of school districts, except on things of substance.
The court finds that each of the districts, including relator, accepted the apportionment, and thenceforward its credits were balanced, as directed, in the town treasurer’s books, and all accounts started off on that basis, so that the town treasurer’s books have several times been balanced accordingly with relator as well as the rest.
In September, 1883, the officers of relator undertook to draw on the town treasurer for over $400, and he refused to honor the order, as his successors have refused. The school business has been conducted on the other state of accounts. There is nothing to show that there ever was any foundation for so large a claim, on any theory, unless it included moneys later received, and, if it did, those have been accounted for otherwise. In October, 1885, a mandamus was asked in the present case to require payment of that order as correct. Upon the issues made up, it now appears from the findings that the judge ascertained that according to old debits and credits up to September, 1883, aside from the apportionment, a balance would still remain due relator of $156.79; but he further finds that nothing remains due and unpaid if the apportionment stands. This would indicate that by these several changes of districts relator had in some way got that much more than its share until rectified by the review.
We have no means and no right to change this finding. It was made by the proper board, and acquiesced in now over six years, and had been, when this proceeding was started, about four years and a half. If we could change it, we have no proof that we ought to. It is not likely that even the inspectors of 1887 could get fully at property values of 1881. And it is not wise to stir up old matters without merits and urgency.
The mandamus is denied, without costs to either party.
The other Justices concurred. | [
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Morse, J.
The defendants were convicted in the circuit court for the county of Osceola of the crime of rape upon the person of Mary Penasa. She was dead at the time of the trial.
The case has been here once before, and will be found reported ante, 92.
The only error assigned upon the second conviction is the introduction in evidence of the testimony given by said Mary Penasa upon the preliminary examination before the justice of the peace who bound the parties over for trial. This examination was taken in writing under oath, and subscribed by the said Mary Penasa. It was returned to the circuit court by the justice, with the other papers belonging to the case.
It is objected against the introduction of this deposition—
1. That it violates the constitutional right of the respondents to be confronted with the witnesses against them.
2. That the deposition bore no certificate, as required by statute, and was in no other way authenticated.
8. That there was nothing to show that the interpreter was sworn to interpret truly.
4. That the testimony was neither reinterpreted nor reread to her before she signed it.
We will notice these objections in their order.
The witness being dead, the deposition was admissible if otherwise unobjectionable. This is a recognized exception to the rule requiring witnesses to be confronted with the prisoner, before the trial jury. The prisoners were both present when her testimony in justice’s court was taken, and were therefore confronted with her when she gave her evidence.
It was certified by the justice that the examination of the witness was taken by him on oath, and sworn and subscribed to by the witness before him, and the deposition, so certified, was returned by him, with the warrant and other papers pertaining to the case, to the clerk of the circuit court. This was a sufficient compliance with How. Stat. § 9478.
The deposition did not, upon its face, show that any interpreter was employed, but, from the oral proof resorted to, it appeared the interpreter was properly sworn, taking the usual oath of an interpreter.
The deposition, like all others usually returned to the circuit, did not show whether the testimony subscribed by her was read over to her or not previous to the signing. It purported to give her evidence as taken before the examining magistrate, and ended by her signature at its close, and the following jurat of the officer:
“ Subscribed and sworn to before me this twenty-sixth day of August, A. D. 1886.
“Jeremiah Waite,
“Justice of the Peace.
It is doubtful if this practice of showing orally upon the trial of a cause that the depositions of witnesses taken upon the preliminary examination were not read to them before signing should be permitted, where no objection was made upon such examination, or before pleading in the circuit court.
We held in People v. Gleason, 63 Mich. 626, that if, under Bueh circumstances, it did appear upon the trial that the depositions were not so read, it would not vitiate the examination, as the law in terms did not require it. Here it was attempted to be shown by oral proof that the deposition of Mary Panasa was not read to her before signing, but the result was that neither the justice nor any one else could swear whether it was or not so read.
The evidence was taken in conformity to the requirements of the statute, and we are not satisfied from the oral proof that the witness Mary Penasa did not understand what she was signing. On the contrary, we are satisfied that the deposition contained a true statement of the transaction, as far as it went, and it was corroborated by all the other testimony in the case. The guilt of the respondents is clear from the record, and the judgment is affirmed.
The other Justices concurred. | [
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Campbell, O. J.
Complainants, who, as assignees of Kellogg, Sawyer & Co., were also assignees of Joseph E. Kellogg, and Albert E. Sawyer, two of said firm, of their separate property to pay their own and firm debts, filed a bill to foreclose a mortgage on defendant’s home property acquired under the following circumstances:
In October, 1874, the property was owned by Kellogg & Sawyer, and they mortgaged it to Mary A. Trowbridge for fa,500. »
In December, 1874, the property was conveyed to defendant, who is wife of Joseph E. Kellogg, as a gift from her husband, by deed executed by him and Sawyer. This deed, not having been placed on record, was subsequently taken by Kellogg, and lines of defacement drawn across it, and handed back to Sawyer, without Mrs. Kellogg’s knowledge. This deed has figured in some other cases before us, and we have no doubt it had been legally delivered and was operative. It ■contains a covenant of seizin not subject to any exception, a covenant that the land was only incumbered by this mortgage, a gee eral covenant of warranty against all lawful claims whatever, and a recital that this mortgage was held •against the property.
In February, 1888, Kellogg & Sawyer made a quitclaim of the premises to Mrs. Kellogg, recited to be subject to this '.mortgage. During all this interval the premises, which are Mrs. Kellogg’s homestead, and which all parties meant ■should be such, have been occupied and improved as such, and are valuable. The consideration expressed in the warranty deed is $8,000, which seems to have been about the unincumbered value of the land.
This property was not covered by the assignment, and we find no reason in the record why whatever title was meant to be conveyed to Mrs. Kellogg was not valid. And so far as Kellogg & Sawyer’s own liabilities were concerned, their estates were perfectly solvent. And we have no doubt the deed of 1874 continued effectual, and needed no confirmation, and could not be changed by the quitclaim of 1883. The mortgage, as between Kellogg and his partner, Sawyer, had been assumed by Kellogg.
In September, 1886, Mrs. Trowbridge presented her claim for the mortgage debt against Kellogg’s separate estate in ■the hands of the assignees, and, the matter being submitted to the circuit court of Kalamazoo county, it was determined ■that Mrs. Kellogg was not bound to pay the debt, and that it continued a claim against Kellogg, and should be paid out. of his assets. But the court not being prepared in that proceeding to settle all the questions that might arise, the assignees were directed, in paying Mrs. Trowbridge, to take an assignment of the mortgage, to abide future decision in a-proper case; and it was in this way that they got possession of the claim in question.
As the assignees had no interest in the land under the-assignment, they had no right to buy up a mortgage against it, unless in the single case that a secured creditor, who is put to his election between his debtor’s assets and his specific security on particular assets, is sometimes required, on-receiving payment out of the general assets, to turn over his security. But this is usually where the debtor himself would have had a right to the fruits of such an election had no assignment been made. And the doctrine can never apply to a case where the mortgaged property has been conveyed to a third party, in whose hands it is not, as far as the-debtor is concerned, to be subject to payment of his debt.
Both the terms of the warranty deed and the facts appearing otherwise in the case indicate very clearly that. Mrs. Kellogg was to take the property, so far as her husband was. concerned, free of burden. Had Mr. Kellogg paid the mortgage himself, it is very clear that he could not have enforced it against his wife. If he could not, then there is no reason why his assignees can. If his estate was bound to pay this-debt without recourse to the land, the assignees in paying the debt extinguished it, and made an end of it. The mortgage cannot survive the debt that it secured, where that debt has been paid to the holder of the mortgage by the debtor.
The court below took this view, and dismissed the bill, and; the decree should be affirmed.
The other Justices concurred,, | [
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] |
Sherwood, J.
This is an action of assumpsit brought by the plaintiff against the defendant to recover the sum of $877.97, with interest, for goods sold and delivered, for moneys paid on orders of the defendant, and for team work furnished to the defendant. The claim is for a balance due upon the account.
The declaration is on all of the common counts, accompanied by a bill of particulars of the plaintiff’s items claimed thereunder. The plea is the general issue.
A trial was had in the Marquette circuit, and the plaintiff recovered a verdict and judgment for the sum of $930,72.
It appears from the record that in 1885 and 1886 the defendant, Busch, owned pine lands in Baraga county, and the plaintiff owned and carried on at the same time a store at which he sold merchandise and supplies for lumber camps at L’Anse.
The evidence tends to show that Busch carried on his lumbering at the camps by contracts with others who did the work, and whom he largely paid through the store goods of the plaintiff; that he let one contract in 1885 to Martin Kelsey, a brother-in-law of the plaintiff, to get out a certain ■quantity of logs on lands about 25 miles.from L’Anse, and on November 9, 1885, he wrote the plaintiff as follows:
“I have just closed, or rather arranged, with Mr. Martin Kelsey for putting in pine for me on Point Abbey, and agreeing to pay for same as work progresses. To aid him in starting, I would agree to guarantee payment for supplies necessary to supply such job. Send me bill of such amount of supplies as may be got under this order.”
The plaintiff responded to the letter of Mr. Busch by furnishing supplies to Kelsey, between that time and December 1, to the amount of $218.11. Defendant did not give any other order by letter, but in a few days he visited L’Anse, and there saw the plaintiff, and plaintiff testified that—
“A little before Christmas Busch told me to pay the men. He told me that Thanksgiving day. He told me to pay his men, and Belanger’s men, another contractor of his; that is,, orders drawn by Kelsey on him. I began paying them about Christmas, 1885. December 2i I paid $100.”
The plaintiff further testified that it was agreed right along between himself and the defendant that he (plaintiff) was to-pay the men, and he (Busch) would take up the orders; and that witness was to keep on paying the men.
The plaintiff furnished the defendant with monthly statements of the account, and plaintiff testified that defendant never objected to any of them until after the job of Kelsey was closed, which was about the first of May, 1886. The-orders paid by the plaintiff were charged in the monthly statements sent, and from time to time the defendant made-partial payments of the amounts charged.
The testimony of the parties was conflicting upon several points, and the defendant claims that by the arrangement, between them he was to pay the plaintiff only to the extent-of the moneys Kelsey was to receive upon the job, and that he had paid that amount or more when the suit was brought; and further that the defendant wrote to the plaintiff on the twenty-fourth day of February, 1886, the following letter:
“Dear Sir': Yours, showing a balance of $673.78, at hand. I wish once more to call your attention to what I have told you, and have also written in former letters, that I would not assume an unlimited account of Kelsey, but only as far and fast as he earns it. Of course, would have to protect labor first.”
The plaintiff, however, testified that he never received such letter, and some question was made upon the testimony whether such letter was ever sent to the plaintiff.
There was, however, testimony offered upon the trial tending to show that Kelsey earned upon his job, according to-his contract with Busch, more than enough to pay the account of the plaintiff, including that claimed for in this suit.
The defendant’s counsel, on'the trial, objected to any testimony showing payment of orders drawn by Kelsey upon the defendant, upon the ground that the plaintiff had no authority to pay such orders.
We think there was testimony in the case tending to show that the plaintiff, had such authority, and that he kept within the limits of it, and the special finding of the jury that he did not have unlimited authority does not conflict with thq fact that he did have limited authority.
The following occurred upon the trial, and is alleged as error by counsel for the defendant. The defendant was upon the stand as a witness for himself, when the following questions were asked by Mr. Healy, counsel for the plaintiff:
“ Have you been on the witness stand before ?”
Mr. Clark. “1 object to that as incompetent.”
Court. “I do not think that is material.”
Mr. Healy. “ I will offer to show that Mr. Busch has been a witness on the stand about one hundred times.”
Mr. Clark. “ I object to that statement in court.”
Mr. Healy. “I offer it to go to his credibility.”
Court. “I think the proper way would be to put questions.”
Mr. Clark. “I ask the court to say to the jury that the statement of counsel is irregular, and out of order.”
Court. “Goon.”
Mr. Glark. “ Note an exception. I want an exception to all these things that are overruled.”
Q. “You have had about ten eases in the Supreme Court of Michigan?”
Mr. Clark. “I object to the question.”
Court. “I think the objection is good.”
The foregoing questions and offer to prove were improper, and were so ruled by the court; but we find nothing in them so prejudicial to the rights of the defendant as to warrant a reversal of the judgment upon that ground.
No other questions are made upon the testimony needing further attention.
The defendant presented 10 requests to charge. They are quite lengthy, and some of them ask the court to assume facts from the testimony which should be found by the jury. We have examined them all carefully, and it is unnecessary to discuss them at any length, as we are all satisfied that ail therein contained, proper to be given to the jury, is included in the charge given by the circuit judge.
Several of the requests ignore the testimony of the parties in relation to the agreement between them for the credit claimed to have been extended by the plaintiff. Each party gives a different version of the same, and the theories of each were submitted to the jury in the charge with perspicuity and care, and we have been unable to discover, either in the rulings upon the requests or in the portions of the charge excepted to, any prejudicial error.
The judgment must therefore be affirmed.
Champlin and Morse, JJ., concurred.
Campbell, C. J., did not sit. | [
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Sherwood, J.
This suit is brought by the complainant against the defendant to obtain a decree of divorce and alimony.
The bill does not expressly aver a marriage between the parties, but that they have lived and cohabited together, and that she has done so as his wife, since the month of September, 1862; that during said period seven children were born to them as the result of said intercourse and cohabitation, and that he has during said period recognized the complainant as his wife, and treated her as such, and paid bills contracted by her as such, and given the children his own name;. that she has worked for him, and helped earn his property, and treated him well; that for 10 years .past he has been a hard drinker, and has become very abusive to her, and now refuses her support, or to recognize the marriage relation between them, or to treat her as his wife, and alleges that she is not his wife, nor entitled to any support from him, nor to any interest in his property; that she claims that she is his wife, and entitled to relief, and of the character she asks in her bill.
The defendant made answer, and says that he was not married to the complainant; that she came to his place in July, 1861, with two children, and he employed her to work for him; that she was married to a Mr. Wheeler in 1850, by whom she had the two children; that defendant knew at that time that she was married, and so remained until the twenty-third day of January, 18?9, when she obtained a decree of divorce from said Wheeler.
Defendant avers that he never lived and cohabited with the complainant as his wife, but admits she remained at his home until the fourth day of February, 1886, and during this time she had six children, of whom four were born alive, and of whom two are now living, a son and daughter, and that he is the father of said children, but says that they were all born before complainant obtained her bill of divorce from Wheeler, and that he never recognized the complainant as his wife. He admits that he has paid bills of her contracting for goods used in his family, and by complainant and the children, and that the children, the fruits of the illicit intercourse, have been and are known by the name of Rose.
He denies the cruelty charged, and of being a drunkard, and avers that complainant left his house of her own accord, and without any occasion from him, and that when she went she left a residence “to which she is at any time welcome to return,” and that he never at any time abused her, and does not refuse to support her.
Defendant further avers that, after complainant obtained her divorce, she desired and requested him to marry her, but he declined; and that the complainant then understood, as now, that he would never contract that relation with her.
These^ statements of portions of the contents of the bill and answer are sufficient to an understanding of the case upon the pleadings.
A large amount of testimony was taken, and the cause was heard before Judge Fuller, who made a decree declaring the complainant to be the legal wife of the defendant since the twenty-third day of January, 1879, and that the two children were the son and daughter of the parties, and that the defendant is guilty of the cruelty and excessive drinking charged in the bill.
The circuit judge further decreed a divorce between the parties, and that defendant pay to the complainant within 30 days the sum of $6,000 as permanent alimony.
Only two questions need be considered:
1. Has a marriage in fact been established between the parties at common law?
2. If so, has the cruelty charged been proved?
Of course, if the first is found against the complainant, there will be no necessity for the consideration of the other.
We shall not review the testimony in our discussion of the case at any great length. It has all been carefully examined, as well as the pleadings, and has failed to satisfy us that any marriage between these parties was ever agreed upon, or exists between them.
Certain it is that no valid marriage could have been contracted between them previous to the time complainant obtained her divorce from Wheeler, in January, 1879, and the record discloses no treaty between them looking to a marriage since that time.
Mr. Eose, in his answer, says that she once approached him upon the subject soon after she obtained her bill of divorce, but that he then informed her that he should not contract such alliance with her; and the circumstance, in the consideration of this question, that the complainant herself nowhere in her bill of complaint, or in the subsequent proceedings, avers that the parties were ever married, or that anything like a marriage contract was ever attempted to be made between them, cannot be overlooked. This was a fact she knew, if it existed, and I think she should have given us the benefit of that knowledge, at least, in her bill of complaint. She can hardly expect that this Court will infer the most material fact in her case when she fails to allege in her bill its existence.
The complainant’s bill, and her testimony relied upon to support it, present a sad exhibition of the indecencies and immoralities of these parties, and the continuance of which, through almost an entire generation, unpunished, is now sought by the complainant to be made the basis of the most sacred of all contracts known to the law.
A court of equity will never set its seal of confirmation to such baseness and immorality.
The decree of the circuit judge must be reversed, and complainant’s bill dismissed.
Chamblin and Morse, JJ., concurred.
Campbell, O. J., did not sit. | [
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Per Curiam.
The sole question of any importance is-whether the police justices of the city of Detroit have-power to admit to bail in criminal cases after persons charged with crime have been bound over to the recorder’s-court for trial.
The Detroit police court act provides that—
“ The police court or either police justice thex-eof, the-recorder’s court of the city of Detroit, the circuit court for the county of Wayne, and the Supreme Court of this State and the Justices thereof, and no other court, magistrate, or officer whatevei’, except as provided in. section ten, shall have power to let to bail any prisoner- or person in custody charged with a bailable crime,, misdemeanor, or offense of which the police court shall for any purpose have jurisdiction.’’
In the pi’esent case the police court had examined the-criminal charge made against the relator, had found probable cause to believe him guilty of the offense charged, had bound him over to the recorder’s court, and certified the proceedings to that court. The police-court had thereby lost jurisdiction for any purpose whatevei. In bailable offenses, upon examination the police court should fix the amount of the bail, and give the prisoners reasonable opportunity to procure it; but its-jurisdiction ends with the certification of the papers into-the recorder’s court
The above act took effect July 4, 1886. Prior to that, time the police justices had power to take bail at any time before trial. Section 552, p. 339, City Charter,. 1886. This provision was repealed by the law of 1886. The writ must be denied.
McGrath, J., did not sit.
3 How. Stat. § 6591grl.
3 How. Stat, § 65917x2.
Act No. 479, § 40, Laws of 1871. | [
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Fead, J.
This is review of condemnation proceedings instituted by the Detroit International Bridge Company, hereafter called plaintiff, to acquire lands of the American Seed Company, designated as defendant, for an international bridge, which has since been constructed and opened from the city of Detroit, Michigan, to the town of Sandwich, Ontario. Defendant has appealed from an order of condemnation. The Peninsular State Bank is interested only as mortgagee.
Plaintiff was organized June 20, 1927, under Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [1] et seq.), the corporation code, as a corporation for pecuniary profit, but with nominal capital, for the purpose of “constructing, owning and/or operating a highway bridge across the Detroit river from Detroit, Michigan, to Sandwich, Province of Ontario, Canada.”
On August 4, 1927, plaintiff amended its articles to increase its capital stock and to change its corporate purposes to read:
“To construct, own and/or operate a highway bridge across the Detroit river from Detroit, Michigan, to Sandwich, Province of Ontario, Canada, and the approaches thereto.
“To maintain and operate such bridge and the approaches thereto for the use of vehicular and pedestrian traffic, and to charge and collect tolls for such use.”
It claimed the right of eminent domain under part 2, chap. 1, § 2, Act No. 84, Pub. Acts 1921, as amended by Act No. 232, Pub. Acts 1925, and Act No. 335, Pub. Acts 1927. The only change made in 1927 was in adding the words “or tunnel” and “or under” to the act of 1925. The pertinent part of the section, with the amendment italicized, is:
“Every corporation shall have power, unless expressly prohibited by law, to purchase, hold and convey all such real and personal estate as the purposes of the corporation may require, and all other real and personal estate which shall have been, bona fide, conveyed or mortgaged to said corporation by way of security or in satisfaction of debts. Any corporation organized for the purpose of constructing, owning or operating any highway bridge or tunnel, across or under any river, stream or other waterway forming a part of the boundary between this State and any other State or country, shall, in addition to all other powers by this act conferred, have the power to condemn any and all real estate, or interest therein, or pertaining thereto deemed necessary for the purposes of such corporation, when no mutual agreement can be reached for the purchase thereof, and in which condemnation said corporation shall proceed as in the condemnation of lands or franchises for railroad purposes under chapter one hundred fifty-seven of the compiled laws of nineteen hundred fifteen, as amended.”
Permission to construct the bridge was originally granted by act of congress of March 4, 1921 (41 Stat. 1439), to the American Transit Company, a Nevada corporation, its successors and assigns. The act granted no power of eminent domain. The permission was made subject to the Federal bridge act of March 23,1906 (33 USCA § 494), which provides:
“If tolls shall be charged for the transit over any bridge constructed under the provisions of this act, of engines, cars, street cars, wagons, carriages, vehicles, animals, foot passengers, or other passengers, such tolls shall be reasonable and just, and the secretary of war may, -at any time, and from time to time, prescribe the reasonable rates of toll for such transit over such bridge, and the rates so prescribed shall be the legal rates and shall be the rates demanded and received for such transit.”
The rights of the American Transit Company were assigned to plaintiff in August, 1927. Proper authorization by the Canadian government was granted to the Canadian Transit Company, incorporated May 3, 1921, all the stock of Avhich is owned by plaintiff.
Defendant contends the amendments of 1925 and 1927 to the corporation code, granting right of eminent domain, are unconstitutional on several grounds, which we summarize:
1. The use is not restricted to public purposes.
When employed in a statute, there is no doubt of the meaning of the word “highway” unless, as sometimes happens, the context plainly shows a perversion of use. The expression “private highway” is a misnomer and “public highway” is tautology. A highway is a public way for the use of the public in general, for passage and traffic, without distinction. Macomb er v. Nichols, 34 Mich. 212 (22 Am. Rep. 522); Flint & Pere Marquette B. Co. v. Gordon, 41 Mich. 420; Burdick v. Harbor Springs Lumber Co., 167 Mich. 673; 1 Elliot on Roads and Streets (4th Ed.), p. 1; Gorham v. Johnson, 157 Mich. 433; 29 C. J. p. 364; 4 R. C. L. p. 195.
A toll road or bridge, if established by public authority, is a highway, and land may be taken for it under the power of eminent domain. 1 Lewis, Eminent Domain (3d Ed.), p. 522; 38 Cyc. p. 363; 22 L. R. A. (N. S.) 135, note.
The bridge and its approaches form one structure. As such, it constitutes a union of highways of Michigan and of Ontario and converts them into one uninterrupted public road. Land taken for the approaches is as fully dedicated to the public purpose as the bridge itself. ...
The statute does not authorize the taking for private purposes, or for both public and private purposes, as in Berrien Springs Water-Power Co. v. Berrien Circuit Judge, 133 Mich. 48 (103 Am. St. Rep. 438); Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564); Board of Health v. Van Hoesen, 87 Mich. 533, relied on by defendant. The taking of property “deemed necessary for the purposes of such corporation, ’ ’ as provided in the statute, plainly has reference back to the public purpose of “constructing, owning or operating any highway bridge. ’ ’ Swan v. Williams, 2 Mich. 427.
It is true that hereafter plaintiff may amend its charter but, whatever the amendment, it cannot devote the property taken under the power of eminent domain to a private use. No express restrictions in the statute are required to preserve the public purpose. The obligation is implied from acceptance of the right. As was said in Swan v. Williams, supra:
“For the purpose of carrying out and effectuating the general purpose, the company may be regarded, as we have shown, as a trustee or agent — entitled to certain rights and immunities, upon a faithful observance upon its part, of the objects and terms of its creation. The right to purchase and hold lands for the purposes of the road, being a right delegated-in virtue of the eminent domain of the government, and derogatory to those of the citizen whose property is condemned, must be construed as conferring no right to hold the property in derogation of the purposes for which it was taken.”
See, also, Holt v. Antrim, 64 N. H. 284 (9 Atl. 389); 1 Lewis, Eminent Domain (3d Ed.), § 313.
Plaintiff, in exercising the power, irrevocably bound itself to the statutory public use of the property. As is conceded by counsel for plaintiff, it did not acquire the fee. It took only an easement for public purposes, and failure of use for such purposes would work a reverter of the land. Flint & Pere Marquette R. Co. v. Rich, 91 Mich. 293.
2. The State cannot lawfully delegate exercise of its sovereign power of eminent domain to plaintiff.
(a) Because the bridge, being for commerce with another nation, is exclusively a Federal purpose.
In People, ex rel. Trombley, v. Humphrey, Auditor General, 23 Mich. 471 (9 Am. Rep. 94), it was held that the State could not condemn lands for a purely National project, such as a lighthouse, as there was a want of necessity for the exercise of State power, the Federal government having full right to condemn for its own purposes. Counsel agree that the United States may authorize a corporation to condemn lands in a State for an interstate or international bridge, with or without the consent of the State. Kohl v. United States, 91 U. S. 367; United States v. Jones, 109 U. S. 513 (3 Sup; Ct. 346). And defendant contends the Federal power was held exclusive, in case of such a bridge, in Latinette v. City of St. Louis, 120 C. C. A. 638 (201 Fed. 676).
The Latinette Case does not sustain defendant’s contention. In the respect claimed, the court merely observed, in effect, that while congress could properly refer to the State, law the procedure for determination of compensation, it could not, by like reference, work a delegation of any of its own or of the State power of eminent domain, but that the power must be conferred, if at all, by direct grant. Clearly, one government cannot authorize right of exercise of any part of the sovereignty of another.
In a large number of instances cited by counsel, States have authorized condemnation of lands for interstate bridges and ferries. None pass upon the issue here. Apparently the question of want of power in the State has not before been raised.
The bridge is not exclusively a National or State purpose. The Federal government is interested in it by virtue of its constitutional authority over navigation, interstate and foreign commerce and post roads. But it did not originate, adopt, nor aid the project. Its function is merely supervisory and permissive. The State is interested in the extension of its highway system to the State boundary in the Detroit river, an indubitably State purpose, and is the source of the power to construct the bridge.
“The act (bridge act) does not make congress the source of the right to build but assumes that the right comes from another source, that is, the State. It merely subjects the right supposed to have been obtained from there to the further condition of getting from congress consent to. action upon the grant.” International Bridge Co. v. New York, 254 U. S. 126 (41 Sup. Ct. 56).
If, because of control over foreign commerce by congress, the bridge should be held a purely National purpose, in the establishment of which the eminent domain of the State cannot be employed, then, by the same token, the State could noi? use the power to complete any road to the State line beyond the needs of intrastate traffic nor authorize its use by a transportation company engaged in purely interstate commerce. The statement of the proposition seems to carry its own answer.
"We think the project is so plainly both a State and National purpose as to authorize condemnation of lands for it by either government.
• (b) Because the State retains no power or supervision over operation of the bridge and tolls.
This contention is based upon the proposition that, to justify delegation of the power of eminent domain, the State must retain such control as will enable it to compel devotion of the bridge to public use, independently of the will of plaintiff. People v. Salem, 20 Mich. 452 (4 Am. Rep. 400); Board of Health v. Van Hoesen, supra; Berrien Springs Water-Power Co. v. Berrien Circuit Judge, supra.
Counsel agree that the State retains police power over the bridge. Through quo luarranto proceedings, the State undoubtedly could compel plaintiff to fulfil its charter obligations. Swan v. Williams, supra. Defendant has not suggested any manner in which the control of the State necessary to insure public use is wanting, except in respect of the regulation of tolls.
While for a time there was some uncertainty (Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 [5 Sup. Ct. 826]; Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204 [14 Sup. Ct. 1087])., it is now settled that the State may regulate the tolls unless congress undertakes to do so. Port Richmond & Bergen Point Ferry Co. v. Hudson County, 234 U. S. 317 (34 Sup. Ct. 821); Mayor of Vidalia v. McNeeley, 274 U. S. 676 (47 Sup. Ct. 758). The tolls, then, are under control of either the National or State government.
As eminent domain is an attribute of sovereignty, the legislature could have imposed any conditions it pleased upon its exercise. In granting the power to plaintiff, it must be assumed the legislature knew the tolls would be under supervision of the secretary of war by virtue of the act of congress. The purpose of the bridge being inherently public, the failure to attach special conditions to the grant of power demonstrates that the legislature considered the supervision of tolls and the determination of their reasonableness by the Federal government sufficient to insure protection of the public from extortion. In ef feet, the State adopted the secretary of war as its agent to fix the tolls. If the Federal government withdraws its regulation, the State may step in. While it is for the court to determine whether a use is public (Board of Health v. Van Hoesen, supra), the conditions of the exercise of the power for a use undeniably public, and the measures necessary to preserve the public rights, are for the legislature. In the Matter of Peter Townsend, 39 N. Y. 171. The rule might be different where the project is essentially private but is invested with a public interest and conditions are necessary to create and preserve the public interest.
3. Because the titles to the amendatory acts of 1925 and 1927 do not specifically mention the power of. eminent domain. The title to the, 1925 act reads:
“An- act to amend section two of chapter one of part two of act number eighty-four of the public acts of nineteen hundred twenty-one, entitled, (here follows the title of the original act.in full) as amended.”
The object of the amendment was germane to the original act and to the sections amended, and the title is sufficient. West gate v. Town-ship of Adrian, 161 Mich. 333; C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316.
The act is constitutional.
The city of Detroit, by ordinance containing no time limit, granted permission for the construction and operation of the bridge. Defendant contends the ordinance is invalid as granting a franchise or license beyond the term of 30 years contrary to article 8, § 29, State Constitution. Whether the ordinance is a valid grant for the constitutional period (Peck v. Railway, 180 Mich. 343; Boise Water Co. v. Boise City, 230 U. S. 84 [33 Sup. Ct. 997]), need not be determined. It is at least a valid license until re pealed or revoked, and, as such, is sufficient on this issue.
Two forms of report drafted by counsel were submitted to and returned signed by all the jurors. On plaintiff’s form the damages were divided, and the jury found $80,000 for the land and nothing for business damage. On defendant’s form'the jury found $80,000 for the land, including consequential and business damages. The court entered judgment in that amount and expressly adopted defendant’s form in its order. Under the testimony, the jury need not or could have found business damage. The statute does not prescribe the form of report nor require itemization of damages nor need the jury report the items. The essentials of findings of necessity and amount of compensation were in both forms. They were not inconsistent in matter of substance. The practice is not to be commended, but, under the circumstances, defendant was not injured and the court did not err in entering judgment.
For a long time before these proceedings were commenced, plaintiff, its assignors and agents, tried to purchase the property from defendant. Defendant refused to sell or even to name a price for the premises, except in conjunction with two other lots, and finally informed plaintiff that further negotiations for the one lot condemned would be fruitless. Even after that plaintiff made a specific offer. The attempt to purchase was bona fide and sufficient to create a necessity for condemnation.
Section 8257, 2 Comp. Laws 1915, provides that on payment or deposit of the moneys adjudged, the condemnor may take possession, but if the sums are not paid or deposited within 60 days after confirmation, “such failure or neglect shall be deemed as a waiver and abandonment of the proceedings to acquire any rights in said land or property. ’ ’
Plaintiff tendered certified checks instead of money. The tender was unequivocally refused because defendant proposed to appeal. No objection was made to the form of tender. Plaintiff deposited the certified checks, notified defendant it had deposited the sums ordered, and defendant commenced a suit in chancery to restrain plaintiff from taking possession, setting up a large number of grounds, but making no objection to the form of tender or deposit. The court denied an injunction. Plaintiff took possession and erected on the premises a support for the bridge approach. Some 10 months later defendant filed a motion in this court to dismiss the whole condemnation proceedings because the deposit was not in money. Had defendant raised the point in the suit to resist entry, plaintiff would have deposited the money, as it offers to do in this court. Waiver and abandonment imply intention. Plaintiff did not intend to abandon the proceedings, as defendant well knew. It is not claimed the checks were not good at all times. The purpose of the statute to assure payment of the judgment before possession was taken was fully subserved. The motion is denied.
The other contentions of defendant have been examined, are untenable, and do not merit discussion.
Upon plaintiff depositing money as provided in the order of confirmation, within ten days, the judgment will be affirmed, with costs.
' Wiest, C. J., and Butzel, Clark, Potter, Sharpe, and North, JJ., concurred. McDonald, J., took no part in this decision. | [
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36
] |
Potter, J.
March 30, 1928, James W. Oakes and Mary McMillan Oakes, husband and wife, Louis- H. Osterhous and Adeline J. Osterhous, husband and wife, and George H. Dettling and Martha M. Defiling, husband and wife, filed a petition in the circuit court for Ottawa county to vacate a part of the plat of Sheldon Beach Subdivision, towit, the north nine feet of Lake Driveway covered by such plat. The order granting the prayer of petitioners recites, and it is not disputed, that there was publication, posting, and service of the statutory notices. Objections were filed by persons interested in the plat and by the township of Grand Haven, in which the lands platted are situated. After hearing, there was an order entered granting the prayer of petitioners, and the objectors bring certiorari. No claim is made that the provisions of 1 Comp. Laws 1915, § 3354, were not complied with. Section 3355,1 Comp. Laws 1915, was amended by Act No. 6, Pub. Acts 1926 (Ex. Sess.), by inserting therein the following:
“If such petition is signed by at least two-thirds of the owners of lands and premises in such town or village or part thereof proposed to be vacated or altered and who also own collectively at least two- thirds by area of the lands and premises therein, the court shall, if all of such proceedings are regular, order that such town or village or part thereof be vacated or altered as prayed in said petition. ’ ’
It is contended by objectors the order of the trial court is void because based upon this statute, as amended in 1926, for the reasons heretofore stated by this court. In re Petition of Hawkins, 244 Mich. 681; In re Hendricks, 248 Mich. 124. Laying out of consideration the language added to 1 Comp. Laws 1915, § 3355, by Act No. 6, Pub. Acts 1926 (Ex. Sess.), we think the order attacked complies, in all respects, with the statute in force prior to the amendment, and if good, under a valid statute, will not be held void because in addition it complies with an amendment thereto which may be invalid.
It is claimed the part of the plat prdposed to be vacated constitutes a portion of a street or highway, and in view of section 28 of article 8 of .the Constitution giving cities, villages, and townships reasonable control of their streets and highways, proceedings may not be had to vacate a street or highway on the application of private persons without the consent or against the objection of the municipal authorities. This contention might be sound if the part of the plat proposed to be vacated constituted a part of a street or highway. Here the plat showing the proposed street or highway was filed by private persons interested therein.
Private individuals, upon compliance with the law, may plat lands, but the mere filing of a plat by them delineating a street or highway thereon imposes no duty upon the township authorities to accept such highway, no obligation to expend highway funds raised by taxation or otherwise thereon, and no liability to private individuals for damages arising from the negligent maintenance thereof, unless such street or highway is accepted by the township. It may be accepted by the township by appropriate motion or resolution or by entering upon or working the street or highway. If it were otherwise, a private individual might thrust a grant upon the township without its assent. This it cannot do.' County of Wayne v. Miller, 31 Mich. 447. Here there was no acceptance of the street or highway, either by appropriate motion or resolution of the township authorities or by entering upon and working the street or highway, so as to pass control thereof to the municipality. The constitutional provision relied on has no application.
It is claimed the petition to vacate was filed herein by the platters of the land in question, and they, having sold lands in the plat with reference to this street as indicated thereon, are estopped from taking any steps to vacate any part of the same. Though this be conceded, the petition to vacate herein was signed by George H. Dettling and Martha M. Dettling, husband and wife, who were not interested in the original plat, did not join in its execution, and are in no wise affected by the rule relied upon. The petition is not therefore void for the reason assigned.
This case is here on certiorari. The trial court found there was no reasonable objection to making the vacation petitioned for. There was testimony to support his findings.
“The office of a writ of certiorari is to bring up for review the proceedings of the lower court, tribunal, board, or officer to determine whether such court, tribunal, board, or officer acted within its or his jurisdiction either in assuming jurisdiction of the proceedings or in the manner in which the jurisdiction was exercised. Only questions of law can be reviewed. Questions of fact cannot be tried.” 1 Abbott’s Cye. Mich. Practice (2d Ed.), p. 274.
The lower court acted within its jurisdiction in determining the facts. No question of law is presented which requires reversal. The judgment of the trial court is affirmed, with costs.
Wiest, C. J., and Butzel, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Wiest, C. J.
Plaintiff, by petition, informed the court that Lawrence J. Maloney and the Great Atlantic & Pacific Tea Company contumaciously refuse to abide and obey our mandatory decree entered April 12, 1929, in the case of Austin v. Van Horn. The opinion in that case is reported in 245 Mich. 344. In response to our order to show cause, Mr. Maloney, the present owner of the property involved, and the Tea company, lessee of the property, filed separate answers setting up circumstances in excuse of their disobedience. The mandate of the decree has been disobeyed by Mr. Maloney and the Tea company, in that they continue to maintain the violations of building restrictions they were bound to abate, and their asserted excuses do not serve to purge the contempt. We will briefly state the facts:
Plaintiff owns property in a restricted residence subdivision in the city of Detroit, and filed a bill in the Wayne circuit to restrain Charles Van Horn, the then owner of another lot in the subdivision, from erecting a store building thereon in violation of building restrictions, and asked for injunctive relief. The injunction was denied and the bill dismissed. Plaintiff appealed. While the appeal was pending the store building was completed by Mr. Van Horn, and leased by him to the Great Atlantic & Pacific Tea Company, and that company entered and is now using the building as a store. Mr. Van Horn, after completing and leasing the building, sold the premises to Mr. Maloney. In so dealing with the property pendente lite, these parties acted at their peril. We reversed the decree in the circuit, and, by our decree, enjoined use of the premises and building thereon for business purposes, or for any other than resi deuce purposes, and ordered that, within 90 days, the two-story brick store and office building upon the premises be either taken down, dismantled, or remodeled into a residence building to conform to the building restrictions. The decree also granted leave to defendants therein to apply to the Wayne circuit for modification thereof if, and when, subsequent changes in the character of the subdivision furnished justification.
Instead of obeying our decree, Mr. Maloney filed a petition in the Wayne circuit, alleging changed conditions, and asking for a modification of the decree to the extent of permitting the violations we adjudged and ordered abated. Upon that petition an order, maintaining the status quo, was made in the Wayne circuit, and no obedience accorded our decree by defendants herein. The proceeding in the Wayne circuit for modification is held in abeyance awaiting our determination in this proceeding.
We have considered the petition, answers, and affidavits filed. The leave granted in our decree to apply to the Wayne circuit for modification in case of changed conditions did not admit of such an application within the very period our mandate to remove, dismantle or remodel the building was operative. The action of Mr. Maloney, in filing the petition for modification, was quite in the nature of an effort to review, in the circuit, our decree.
The widening of the street by the city, under the power of eminent domain, and the establishment of street car tracks therein, will not destroy the building restrictions. Mr. Maloney and the Great Atlantic & Pacific Tea Company have disobeyed the mandate of our decree, and are adjudged to be guilty of contempt.
The motion of defendants for a stay of this proceeding until the .petition in the circuit for modifica tion of our decree is heard is denied, with costs to plaintiff. As a matter of grace, we grant them ten days in which to purge themselves of the contempt by exact obedience to the decree. If this is done, and the costs of this proceeding paid, we will enter a proper order. If not done, an order ad-measuring punishment will be entered.
Butzel, Clark, Potter, Sharpe, Fead, and North, JJ., concurred. McDonald, J., took no part in this decision. | [
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5
] |
Butzel, J.
Defendant, a domestic farmers’ mutual fire insurance company, carried insurance on plaintiffs’ buildings and certain personal property situated on plaintiffs’ farm near Port Huron, Michigan.
Plaintiffs’ buildings, together with the content's thereof, were destroyed by fire on September 28, 1928. Six days later the president and secretary of the defendant company came to plaintiffs’ premises to adjust the loss. There was a disagreement in regard to a number of items. The adjusters refused to include in the proof of loss the value of some of the dairy machinery, including a water tank on top of the building. They claimed that they were real fixtures belonging to the building.
An altercation arose as to whether an ice machine which was piped into an iceless refrigerator was covered under the personal property clause.of the insurance policy. The machine was cooled by ammonia and operated by electric current. Plaintiffs claimed it was a “farm implement” under which title a large part of the personal property was covered in the policy. Defendant’s officers as adjusters stated that although they would include the ice machine in the proof of loss at a valuation of $900, they did not think the company was liable for this item. Plaintiffs insisted that the insurance company should pay for the ice machine.. Its original cost was $975 and it was almost new. The total loss, including the ice machine valued at $900, amounted to $5,373.08. Plaintiffs signed and acknowledged the proof of loss for this amount.
On October 12, 1928, plaintiffs wrote defendant that they insisted upon payment of the ice machine at a valuation of $975. Thereupon, defendant’s secretary replied as follows:
“October 25, 1928.
“Joe and B. Pollina,
“Port Huron, No. 1,
“Michigan.
“Bear Sirs:
“Your letter of October 12th, stating that you would expect this company to pay for the ice machine lost in your fire was duly received, and wish to say that we have gone into the matter carefully and find we are not liable for said machine and must deny liability and do hereby deny liability and refuse payment of your loss because of property listed for which we are not liable and for more property listed than was lost in the fire and also for making claim’ for all property lost when a part of said property was owned by a third party, Beldassare Pollina. I wish to call your attention to Article 5 of the charter, copy of which is enclosed herewith.
“Very truly yours,
“W. T. Lewis, Secretary.”
A copy of defendant’s charter was inclosed in this letter. Article 5 of defendant’s charter referred to in the letter provides as follows :
“Article V.
“(a) In case the disagreement with the loser of property regarding any matter pertaining to a loss or damage of the payment thereof, said matter in difference shall be determined by arbitration. In case of snch disagreement the loser shall notify the secretary in writing of his or her desire to appeal to .the arbitration committee, and at the same time deposit $20 with the secretary to pay his or her share of the expense of such arbitration. Provided said appeal shall not be granted unless made within 30 days from the date of said disagreement (date the secretary notified the insured of the company’s decision). If the appeal is not made within the 30 days then in such case the findings of the president and secretary shall be final, binding and conclusive as to both the loser -and the company.
“(b) The secretary shall, within 30 days from the receipt of such notice, give notice to the loser in writing, designating the time and place of meeting, giving the loser an opportunity to appear before the arbitration committee within 30 days from the date of notice, and present such evidence as he may have to establish the justness and validity of such claim, and said committee shall hear, try and decide upon all matters pertaining to said claim and .the payment thereof and the validity of the application and policy, and its decision shall be final, binding and conclusive upon said loser and the company and no suit in law or equity shall be commenced or maintained by any loser or beneficiary to determine said matter in difference.
“ (c) In case of arbitration each party shall pay the expense of his or its own witnesses and attorneys and should the arbitration committee award the loser the amount demanded in the proof of loss, then the $20 deposited by the loser shall be returned to him.”
Plaintiffs, upon receipt of this letter of October 25, 1928, assumed that it was no longer necessary for them to submit their claim to arbitration. They began suit on November 2, 1928, and recovered a judgment for $5,927.88. This was $554.80 more than the amount stated in the proof of loss.
The question was raised at the trial as to whether plaintiffs, instead of bringing suit, were not obligated to submit their claim to arbitration, in accordance with the charter of defendant. The circuit judge held that the defendant, through its denial of all liability in its letter of October 25, 1928, had waived the provisions of the arbitration clause in Article 5 of its charter, and that plaintiffs had the right to bring suit without delay.
As a rule, when an insurance company absolutely denies liability, the claimant may bring suit without first submitting the claim to arbitration. First State Savings Bank of Croswell v. Insurance Co., 244 Mich. 668; Maki v. Insurance Co., 232 Mich. 295. There must, however, be the equivalent of an absolute denial of the liability so that a waiver of the arbitration clause in the policy may. be presumed therefrom. In the present case, there can be no such presumption. The denial of liability expressly called attention to the arbitration clause and showed plain-. tiffs their remedy.
Article 5 of the defendant’s charter, which was made part of the policy, provided for arbitration in case of disagreement with the loser of property regarding any matter “pertaining to a loss or damage or the payment thereof.” Plaintiffs’ attention was specifically called'to this clause of the charter which, was set forth in their policy. In taking out the insurance with the defendant, plaintiffs had specifically agreed to comply with the provisions of the charter and the by-laws of defendant. The letter of defendant’s secretary did not relieve them of their contractual obligations to submit their matters “pertaining to a loss or damage or the payment thereof” to arbitration. This clause has been construed by this court in the case of Jackson v. Insurance Co., 217 Mich. 301.
Defendant in its brief only stressed the assignment of error discussed in this opinion. Its counsel in his oral argument stated that the company would be willing to pay the amount of $5,373.08 originally claimed in the proof of loss, if the $900 for the ice machine included therein'were deducted. This would leave the sum of $4,473.08.
The judgment is reversed. The case is remanded to the lower court with instructions to enter a judgment for plaintiffs in the sum of $4,473.08. Defendant shall recover costs.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
On January 4,1928, while the plaintiff was driving an automobile owned by him along trunk line highway U. S. 31, about 7 miles south of Manistee, it collided with a truck belonging to the defendant and driven by his employee, Chris McIntyre. Plaintiff and a man in the car with him both testified that they saw a snow plow approaching; that, as it passed through a drift, much loose snow was thrown about; that plaintiff’s car was moving slowly, and stopped when near this plow; that it was then off the pavement to the right, and that defendant’s truck came around the side of the plow and crashed into it.
The defendant’s witnesses testified that the truck was being driven in the path of the snowplow, and directly in line with it; that it had stopped, and that plaintiff’s car ran into it, causing the collision.
The case was tried before the court without a jury. He found the facts to be as claimed by plaintiff, and entered judgment for the damage done to the car, which he found to be $625. Defendant seeks review by writ of error.
There was evidence to support the findings of the court, and, if they “are not against the clear weight of the evidence, the judgment should be affirmed.” Weber v. Ford Motor Co., 245 Mich. 213, 216. We have read the record with care. We find nothing in it to challenge the truthfulness of any of the witnesses who testified. The trial judge saw them on the stand, and had an opportunity, not afforded us, to judge impartially, in view of the conditions present at the time of the collision. While the discussion of the testimony by defendant’s attorney is appealing, it fails to convince us that we should say as a matter of law that the findings are “against the clear weight of the evidence.”
The testimony discloses that plaintiff had purchased his car six weeks before the collision and paid $650 for it; that it was “in good repair, and in good running order;” that, as a result of the collision, “it was a complete wreck,” and was given to a junk dealer. His damages were assessed by the trial court at $625. This allowance was not so excessive as to warrant interference on the part of this court.
The judgment is affirmed.
Wiest, C. J., and Butzel, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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North, J.
In August, 1927, the defendant entered into a contract to sell to plaintiffs ten acres of land located on the. shore of Round lake in Allegan county. There was a store building on this property. The contract price, was $5,000, on which there was a down payment of $2,000. No further payments were made. In September, 1928, plaintiffs brought this suit to recover damages alleged to have been sustained by reason of defendant having induced plaintiffs by false and fraudulent representations to purchase this property. Plaintiffs had verdict and judgment for $2,500. Defendant reviews by writ of error.
It is first asserted by appellant that the court should have directed a verdict in his favor because there was no evidence to sustain plaintiff’s claim for damages, and further, plaintiffs were, estopped from recovering by reason of having retained possession of the property. "We think the record contains testi mony which clearly presented an issue of fact relative to the alleged misrepresentations and as to the plaintiffs having believed them and having relied thereon; and also relative to the damage they sustained. We will not attempt a detailed quotation from the record, but the following is from the testimony of the plaintiff Max Poloms:
“He (defendant) said the place was worth $5,500, * * * there was a good business there and he had all the trade in the neighborhood. * * * He said he took in $40 a day during the summer months, and $100 a day on holidays and $20 a day during the winter. In stating holidays I mean Sundays as well. Mr. Peterson told me the place would easily sell for $5,500 or $6,000, and we wouldn’t have any trouble to sell it at that price. He told me the business had been established for years. * * * Mr. Peterson told me the lake front lots ought to easily sell at $250, $200 at the lowest price. * * * He said he was well posted and knew the values of real estate and that I could depend on his word, and I did” depend on his word. I did not depend upon the judgment of anyone else when I purchased the property.”
Mrs. Poloms testified substantially as above, and also said: .
“We told Mr. Peterson, we did not know the value of property, and he told us that he was going to deal honestly with us. # * * We finally decided we would take the place, relying upon what Mr. Peterson had said.”
Numerous witnesses gave testimony tending to prove that the value of this property as given by the defendant was not in accordance with the fact, and that its value was much less than plaintiffs contracted to pay. Under some circumstances statements of value are only expressions of opinion. Appellant contends that his statements of this character should be held as a matter of law to have been only expressions of opinion. But under the circumstances disclosed in this record, his statements might well have been found by the jury to have been deliberate misrepresentations made with the intention of deceiving the plaintiffs and as having accomplished that result. The case was submitted to.the jury on that theory. It falls within the authority of Steele v. Banninga, 225 Mich. 547; Pinch v. Hotaling, 142 Mich. 521; O’Neill v. Kunkle, 244 Mich. 653; and Gugel v. Neitzel, 248 Mich. 312, wherein we held:
“It is a settled and salutary general rule that a statement of value is a mere expression of opinion and cannot be made the basis of an action of fraud. But there are exceptions to all generalities. Where a false representation of value is intentionally made to a person ignorant of value, with the purpose that such statement is to be relied upon, the representation is in the nature of a statement of fact and will support an action of fraud. ’ ’
There was also evidence from which the jury may have found the defendant misrepresented to the plaintiffs the volume of trade enjoyed by the store on these premises. Obviously this was one of the inducements to purchase the property, and representations relative thereto were material.
Defendant’s contention that by retaining possession the plaintiffs have estopped themselves from recovering in this suit is not well founded. They had the right of affirming the contract and of seeking redress in damages. Laches short of the statute of limitations is not a defense to an action so brought. Barnhardt v. Hamel, 207 Mich. 232, and Haukland v. Muirhead, 233 Mich. 390.
Defendant also claims that the testimony shows plaintiffs did not rely on defendant’s representations ; but instead inspected the property, exercised their own judgment, and acted in reliance thereon. As noted above, there was testimony that in deciding to purchase this property, the plaintiffs relied upon what Mr. Peterson had said. \question of fact was presented by such testimony, the issue was submitted, and the jury decided in favor of the plaintiffs. In this connection the court properly charged:
“If the plaintiffs recover here, it must be on the ground of fraud, and fraud must be predicated on existing facts, rather than on promises. * * *
“And unless defendant made statements which were false and on which' the plaintiff relied, whereby the plaintiff purchased same, but would not have done so had the misrepresentation not been made to him, then the law' does not grant plaintiff relief, but leaves him in the position in which he placed himself.”
Numerous errors are assigned on the charge of the court and upon the refusal to give certain of the defendant’s requests. We think the charge as given fully and fairly presented the claims of the respective parties and covered defendant’s requests sufiF ciently to fully protect his rights. Much of defendant’s criticism of the court’s charge is based upon the claim that what defendant said was a mere expression of opinion and not a misstatement of fact, and upon the proposition that plaintiffs ’ retention of the property had worked an estoppel. These objections have already been covered in this opinion. Consideration has been given to each of appellant’s assignments of error, but we find nothing that would justify reversal. The judgment of the lower court is affirmed, with costs to the appellees.
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, and Fead, JJ., concurred, McDonald, J., took no part in this decision. | [
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] |
North, J.
In 1919 the defendant took out a $1,500 20-payment life policy in plaintiff company. Plaintiff claims there was default in payment of a premium which fell due October 3, 1924, that the 30 days of grace passed, that the payment was not made until November 5, 1924, and that the receipt of payment was then conditional upon the reinstatement of the insured; and further, that on December 3, 1924, defendant filed an application for reinstatement and represented therein that he was then, to the best of his knowledge and belief, in good health; and that within the past 12 months he had not had any illness, consulted with or been treated by any physician. The plaintiff relied upon these representations and reinstated the insured.
The policy contained a disability provision; and in October, 1926, the insured, who was then afflicted with Bright’s disease, made application for the disability benefit. Incident to this disability claim Dr. Rivkin in behalf of the insured made a written representation to plaintiff wherein it was stated that the doctor had treated the insured for Bright’s disease in August, 1924. This being within the 12 months next preceding defendant’s application for reinstatement, the insurance company tendered the repayment of the amounts the insured had paid to it incident to reinstatement and as subsequent premiums together with interest thereon. This bill of complaint was then filed to secure cancellation of the reinstatement on the ground that it was secured by false representations of the insured that at the time of his application he was in good health and that within 12 months prior thereto he had not consulted or been treated by a physician. Cancellation would relieve plaintiff of its obligation incident to the disability clause in the policy, and automatically convert the policy into one of continued or extended life insurance for a period of years fixed by the terms of the policy.
Defendant denied in his answer that he at any time defaulted in the payment of his premium, and denied that he had made application for reinstatement or that he had made the alleged misrepresentations incident thereto. It was and is defendant’s claim that his brother paid on October 30, 1924, the premium which fell due October 3, 1924, this' being within the 30 days of grace. The insurance company’s receipt for payment of this premium dated October 3, 1924, was produced by the defendant; but this was explained by the company’s claim that this receipt purporting to be for the premium due October 3, 1924, and bearing that date, was postdated and delivered after defendant’s reinstatement. Dr. Rivkin, as plaintiff’s witness, testified he was mistaken about his having treated the defendant in 1924; that instead it was in 1925. Plaintiff was denied the relief sought and it has appealed.
The opinion of the trial court in part is as follows :
“After careful consideration of the facts, and such authorities as have been presented, I have reached the conclusion that the case turns upon the question of admissibility of the application for reinstatement, which was not attached to nor indorsed on the policy, and is, therefore, claimed by defendant to have been inadmissible. In other words, I think that the plaintiff company has failed to show by competent evidence that the defendant did not pay in time the premium upon his policy if the admissions in the application are excluded. # * * This leaves the plaintiff dependent upon the admission of default contained in the application for reinstatement, and indicates the importance of the question first suggested herein, viz.: "Was this document admissible in evidence? The question was reserved by the court, and the finding will rest upon its determination.
“The objection of the defendant rests on the following provision of the insurance laws of Michigan, viz.: Act No. 256, Pub. Acts 1917, pt. 3, chap. 2, § 3 (Comp. Laws Supp. 1922, §9100 [147]):
“‘Section 1. No policy of life insurance shall be issued in this State, unless the same shall contain the following provisions: * * *
“ ‘Fourth, A provision that all statements made by the insured, shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless it is contained in a written application and a copy of such application shall be endorsed upon or attached to the policy when issued.’ ”
The trial judge -held that because of the above-quoted statutory provisions, he could not consider the insured’s application for reinstatement, since a copy thereof was not ‘ ‘ endorsed upon or attached to the policy.” In this we think he was in error. By its terms the statute plainly contemplates only the written application made incident to the original issuing of the policy. The statute requires such “written application” to be “attached to the policy when issuedClearly it was not intended by this statute to require the insurance company to attach to the policy “when issued” representations made incident to an application for the reinstatement of lapsed insurance. In almost every instance the policy for such insurance at the time of reinstatement is not in the possession of the insurer but instead is under the control of the insured. The reinstatement of a policy is not a new contract of insurance, nor is it the issuance of a policy of insurance; but rather it is a contract by virtue of which the policy already issued, under the conditions prescribed therein, is revived or restored after its lapse. Reidy v. John Hancock Life Ins. Co., 245 Mass. 373 (139 N. E. 538), and Wastun v. Lincoln Natl. Life Ins. Co., 12 Fed. (2d) 422. Provision relative to reinstatement of a lapsed policy is found in a subsequent paragraph of Act No. 256, Pub. Acts 1917, pt. 3, chap. 2, § 3 (Comp. Laws Supp. 1922, §9100 [147]). This paragraph provides that no policy of life insurance shall issue in this State unless the same shall contain the following provision:
“Tenth, A provision that if, in event of default in premium payments, the value of the policy shall be applied to the purchase of other insurance, and if such insurance shall be in force and the original policy shall not have been surrendered to the company and canceled, the policy may be reinstated within three years from such default, upon evidence of insurability satisfactory to the company and payment of arrears of premiums with interest.”
If as is contended by the defendant, the statute contemplated that the representations made as to the insurability of the one seeking reinstatement should be attached to the policy, it would seem that such a provision would have been embodied in the last-quoted provision of the statute.
Appellant’s contention that the statute does not require a copy of the application for reinstatement to he indorsed upon or attached to the policy is sustained by the holding in New York Life Ins. Co. v. Rosen (App. Div.), 236 N. Y. Supp. 659; Holden v. Metropolitan Life Ins. Co., 188 Mass. 212 (74 N. E. 337); Linder v. Metropolitan Life Ins. Co., 148 Tenn. 236 (255 S. W. 43); New York Life Ins. Co. v. Feicht, 29 Fed. (2d) 318, and Mutual Life Ins. Co. v. Allen, 166 Ala. 159 (51 South. 877). Counsel for appellee has cited Mutual Life Ins. Co. of N. Y. v. Lovejoy, 201 Ala. 337 (78 South. 299, L. R. A. 1918 D, 860, 203 Ala. 452, 83 South. 591), claiming it sustains a contrary holding; but a careful reading of the two decisions discloses that the Alabama court has made a plain distinction between these two cases. In the Allen Case it is said':
“We therefore hold that under section 4579 any contract or agreement relating to same is not binding on the insured, unless expressed in the policy. But misrepresentations in the application or negotiation for insurance or proof of loss thereunder, and which are not made a part of the contract of insurance, or of an agreement relating to same, are binding on the insured, although not expressed in the policy contract, provided, of course, it is made with the actual intent to deceive, or the risk is thereby increased.”
A contrary holding will be found in Metropolitan Life Ins. Co. v. Burch, 39 App. Cas. (D. C.) 397; Prudential Ins. Co. v. Gilligan, 28 Ohio Cir. Ct. Rep. 609; Goodwin v. Provident Life Assur. Soc., 97 Iowa, 226 (66 N. W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411), and Missouri State Life Ins. Co. v. Jensen (Okla.), 281 Pac. 561.
It should be noted that decision in the Goodwin Case is based on the Iowa statute, which specifically provides that all insurance companies shall, “upon the issue or renewal of any policy, attach to such policy or indorse thereon, a true copy of any application or representations of the assured, which # * * may, in cmy manner, affect the validity of such policy.” McClain’s Code, § 1733. The Iowa court refers to the foregoing provision as being “about as broad as language can make it.” It obviously is much broader than the Michigan statute. The Jensen Case might well have been based solely on the Oklahoma statute, which provides:
“That every policy which contains a reference to the application of the insured, either as a part of the policy or as having any hearing thereon, must have attached thereto a correct copy of the application.” C. O. S. 1921, § 6728.
The GiUigan Case is a decision from a trial court and not of a court of last resort.
We are satisfied that a proper construction of the Michigan statute does not require a copy of the representations made incident to an application for reinstatement of lapsed insurance to be attached to the policy as a condition precedent to its admissibility in evidence in a subsequent proceeding to secure cancellation of the reinstatement of such policy on the ground of fraudulent representations. If in the judgment of the legislature a copy of the application for reinstatement should be attached to the policy, it can easily so provide by proper enactment; but this court should not read such a provision into the present statute, which is silent on the subject. The statutory provision limiting proof of fraud incident to the original application for insurance to the statements contained in the copy attached to the policy is in derogation of common law, which always permitted the avoidance of a contract procured by means of fraud. Any statutory provision which deprives one of the right to allege and to prove a material fraud or which places any condition upon a litigant’s right to rely upon fraud as a defense should not be extended by implication beyond, the plain meaning of the statutory language.
With the application for reinstatement in evidence, it conclusively appears from the record that the insured defaulted in making payment of the premium due October 3,1924, and that his policy lapsed.
The remaining issue is whether the insured by misrepresentation perpetrated a fraud upon plaintiff in securing the reinstatement of his policy. The proof on this phase of the case is not as decisive as might be desired. We will not review it in detail, but will note certain circumstances which bear upon our conclusion that the plaintiff’s contention that it was thus defrauded should be sustained. The record conclusively disclosed that both the insured and his brother Louis Buchberg are in error in their testimony wherein they attempt to deny that the October, 1924, premium was paid after the period of grace had expired; and their good faith in so testifying may well be questioned. Especially is this true of the insured’s allegation in his answer wherein he denies that he ever made a petition for reinstatement. The original petition now in the court file bears his signature, and its genuineness is self-evident when compared with his other signatures on the original application for insurance. Dr. Rivldn’s testimony wherein he attempts to deny his statements made in the application for disability benefits is evasive and of little or no probative force. We are satisfied that the doctor’s statement made in behalf of the insured and the insured’s own statements in his claim for disability benefits are true. This claim was made in October, 1926, and it there appears (contrary to the representations in his petition for reinstatement made December 3, 1924) his disabling illness began about three years prior to the date of his claim; that Dr. liivldn first visited him incident to such disability August 21, 1924; that insured was suffering from chronic Bright’s disease; that he was wholly disabled thereby; and that because thereof he had not engaged in any occupation whatsoever for “about two years” prior to filing his claim of disability. The foregoing representations, which for the most part are found in the insured’s application for benefits as well as in the doctor’s statement, are in conflict in so many particulars with the insured’s petition for reinstatement that it is not possible to explain them on the theory of an inadvertent misstatement of a date, as both the insured and Dr. liivldn would have us do. There was deliberate falsifying either in the petition for reinstatement or in the claim made for disability benefits. From the record as a whole we conclude that the insured had been attended by a physician within 12 months next preceding his application for reinstatement, and that he was not in good health at that time. The insurance company in reinstating the policy relied upon the misrepresentations made and was thereby defrauded.
The decree of the lower court must be reversed, and a decree entered here canceling the reinstatement of the policy involved. The appellant will have costs of both courts.
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
Fead, J.'
This is a suit for damages for nondelivery of a car of cherries. It was tried before the court without a jury, and plaintiffs had judgment on the basis of failure to deliver 750 crates of No. 10 .cherries, the court holding that the contract had been canceled as to No. 2 cherries.
April 15,1925, through Potts Brokerage Company as brokers, defendant agreed to sell plaintiffs two .cars of cherries. The parties executed a. separate contract for each car. In forwarding them to plaintiffs the brokers stated that the contract for the second car was at buyer’s option after the first car was received. This was understood to mean the second contract would not he effective without later confirmation by plaintiffs. Each contract covered 750 cases of No. 10 and 100 cases of No. 2 cherries. Later, plaintiffs and the brokers agreed that all the cherries should he No. 10. The brokers notified defendant that plaintiffs had changed the specifications and asked it not to ship the first car until it received another letter with the revised assortment. The other letter was not produced. Plaintiffs wired defendant asking shipment of the . first car, and, on July 18th, wrote defendant .stating:
“We advised you some time ago to ship us 800 cases Nó. 10 in the car to Dallas and 100 cases No. 10 in the Ft. Worth pool car. This cancels our order for No. 2’s.”
The first car, containing all No. 10 cherries, was shipped July 31st, and paid for. On August 19th plaintiffs wrote .the brokers confirming contract for the second car. This letter wás not produced, but is referred to in the letter from the brokers to plaintiffs on August 21st, reciting:
“We have your letter of the 19th and are today advising the Grand Traverse Packing Company that you confirm the booking of your second car of cherries, for shipment in accordance with your letter, and will await your instructions.
“We are sure these people would like to get these cherries moving before December if there is any way you can use same.”
On the same day the brokers wrote defendant:
“We have this morning letter from the Fink Company of Dallas, Texas, confirming their order for the second car Montmorency cherries, booked for shipment their option to December 31, 1925, as per contract dated April 15, 1925.
“We have already advised you to make the assortment on this car 800 cases 6-10’s the same as the car you have already shipped them, cutting out the No-. 2’s entirely in both cars and giving them instead 100 cases of 6-10’s in our Ft. Worth pool car, as covered by instructions sent you last week.
“Please acknowledge receipt of this letter, so we will know the matter is having your attention.”
In reply, defendant wrote the brokers on August 29th that, because of a shortage of cherries, on order of two cars it was filling only one, and asking cancellation of the second Fink car. It does not appear that this request was ever communicated to plaintiffs.
On December 15th plaintiffs wrote the brokers asking for shipment. On December 28th plaintiffs wired like request to defendant, confirming it the next day by letter. Defendant did not answer directly, but, on January 2d, the brokers wrote plaintiffs setting out that defendant could not make de livery because of the shortage of cherries, and suggested that the order stand for the next season. January 5th plaintiffs wrote defendant asking damages. Nothing further seems to have been done until March 4th, when plaintiffs’ attorney wrote defendant for settlement of damages, and, on March 18th, defendant asked for a statement of the loss.
Defendant contends that the contract for the second car-of cherries was not in effect because there was no unconditional confirmation of it; that the confirmation by plaintiffs contemplated a modification through cancellation of No. 2 cherries and substitution of No. 10, and that such change was never agreed to by defendant. •
Defendant sent all its communications to plaintiffs through the brokers. The testimony is undisputed that the plaintiffs and the brokers had agreed upon modification of the contract. The correspondence shows that a modification was communicated to defendant both before and after shipment of the first car. It shipped the first car in accordance therewith. It expressed no surprise or dissent when notified of the confirmation of the second contract and the brokers’ advice to change the assortment, and, although unable to fill the order, and even after claim of damages was made, at no time, in correspondence with the brokers, plaintiffs, or the latter’s attorney, did defendant make an assertion that it had not understood and accepted the modification. The reasonable inference is that it had agreed to the change.
Moreover, upon the face of the correspondence, the confirmation of the second contract by plaintiffs to the brokers, and as communicated to defendant, was an unqualified approval of the original contract. The further advice of the brokers to the defendant to change the assortment was not stated as part of plaintiffs’ order of confirmation nor shown to have been a part thereof. Defendant haying already executed the contract, and plaintiffs having given unequivocal confirmation, both were bound by the original contract unless it had been, modified by mutual agreement. In any event, both were bound by the contract whatever it was.
It is of no consequence here whether the original contract or the modified contract be found to have been in force, as the court allowed a judgment of damages only on the basis of 750 cases of No. 10 cherries, which amount was included in both the original and the modified contract.
There was ample testimony of the market value of cherries in the vicinity of defendant’s place of business at the time of the breach of contract to furnish a basis for application of the usual rule of damages, the difference between the contract and the market value.
The court made proper allowances for freight, and judgment is affirmed, with costs.
North, C. J., and Butzel, Wiest, Clark, McDonald, Potter, and Sharpe, JJ.,. concurred. | [
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Sharpe, J.
In the spring of 1924 the Michigan State Industries sought bids for improvements at the State prison at Marquette. Harry L. Hulbert, then warden of the State prison at Jackson, had the matter in charge. He was well acquainted with Armen S. Kurkjian, the sales manager of the plaintiff company. This company had been the successful bidder on a contract for furniture equipment which had theretofore been installed at the Ionia prison. Some correspondence was had relative to the Marquette work, and, at Hulbert’s request, Kurkjian went to Marquette, and on his return he submitted blueprints and aided the warden in preparing the specifications for the needed equipment, among which was a dry kiln. The defendant was a manufacturer of dry kilns at "Grand Rapids. Kurkjian, who decided to submit a bid for his company for the entire equipment, went to Grand Rapids and interviewed Mr. Perry, defendant’s vice president, about furnishing the kiln. Mr. Perry at that time agreed that “we will give you 10 per cent, regardless as to whether we get the order or you get the order.” Perry sent a man to Marquette, who looked over the plan of installation and conveniences for delivery, and on his return wrote Kurkjian at length about it. As a result of their negotiations Perry wrote a letter to the plaintiff on June 21, 1924, delivering it to Kurkjian, in which he said that his company was putting in a bid on the dry kiln. The letter concluded :
“We have submitted this proposition as you will see from the attached proposal at $3,995, and it is understood that the Oliver Machinery Company is to get 10 per cent, commission,on the job regardless of whether' the contract is placed direct with us or through the Oliver Machinery Company. Your cooperation is greatly appreciated, and we shall be glad to. have suggestions from you as to what further we may do toward helping you close the job.”
The plaintiff also included the price stated in this letter in its bid, which included much other equipment. Mr. Eddy made several trips to Jackson to see Warden Hulbert, accompanied by Kurkjian, the purpose of which was to induce the warden to install the defendant’s kiln. While the price was somewhat higher than other bids for dry kilns, defendant’s bid was accepted. Plaintiff’s bid for a considerable amount of the other equipment, part of which they were purchasing from other manufacturers, was also accepted.
On October 10, 1924, the defendant, by Mr. Eddy, who signed as assistant secretary, • wrote plaintiff that its bid had been accepted, some extras having been added, amounting to $5,896.60 and added:
“We are passing credit to your account for engineering services rendered on the job to the amount of $553.34, payment covering this engineering service to be made to the Oliver Machinery Company as remittances are received from the Michigan State Industries.”
Plaintiff acknowledged receipt and inclosed an invoice for “engineering services in connection with dry kiln proposition for Marquette prison $553.34.” On November 24, 1924, plaintiff wrote defendant, calling attention to the above invoice, and asked for' check for same “in the very near future.” Defendant replied on the following day, saying it would remit when it received payment. Plaintiff again wrote on December 20, 1924, asking for payment. Defendant replied on the 23d, saying the invoice had been lost and asking for a duplicate thereof. This was sent on the 29th. On October 24, 1925, plaintiff wrote, saying the kiln had been completed and was in operation, and asking for a check for the amount due it. Defendant answered on the 26th, saying the work had not yet been completed. On May 12,1926, plaintiff again wrote, urging immediate payment. Defendant replied on the 18th, inclosing .statement showing that the kiln had been installed at a loss to it of $9.94, and, on June 19th following, its then manager, E. U. Kettle, wrote plaintiff:
“In reply to your letter of the 17th inst., addressed to Mr. Thwing, regarding your claim against us for commission on the Marquette house of correction dry kiln job:
“We must state positively and finally that we cannot recognize this claim. Neither Mr. Perry nor Mr. Eddy had authority to make any arrangement with you regarding what amounts to nothing more nor less than a secret commission on this job.
“If we could have afforded to cut our price by $442, the State of Michigan should have the benefit of it. At least, that is the opinion of the undersigned, who is strongly tempted to take this matter up with State officials, as we cannot understand, why the State should pay two prices for one service.
“This is straight and to the point, and we hope that you will realize that we don’t want to hear any more about it if we can help it.”
Soon thereafter plaintiff brought this action to recover the amount of the invoice. Trial was had before the court without a jury. Findings of fact and conclusions of law were filed, resulting in a judgment for plaintiff for the amount claimed and interest thereon. Defendant seeks review by writ of error.
The defense is thus stated:
“Plaintiff’s claim under the law is void and against public policy and cannot be enforced.”
Warden Hulbert testified that when examining the bids he noticed that the plaintiff had included in its bid the furnishing of a dry kiln manufactured by the defendant, and that defendant had submitted a bid therefor. The price stated in each bid was the same. He called Mr. Kurkjian’s attention to it, and asked him “if it made any difference to him about our vapor kiln, bid,” and that'he said, “No, no interest whatsoever. * * * He said he had no interest whatsoever only to give me a complete bid, give me the information I wanted;” that he told him, “we would rather buy direct because we were trying to buy as cheap as possible for the State,” and that Kurkjian said, “All right with him;” that he supposed defendant’s bid “to be a low down bid,” and that his dealings thereafter were direct with it.
It is upon this testimony that defendant’s claim is based. We do not construe it as does counsel for the defendant. The price asked for defendant’s kiln in plaintiff’s bid was the same as that in defendant’s bid. Surely Mr. Hulbert did not assume from what was said that if plaintiff’s bid were accepted it would furnish defendant’s kiln without profit to itself. He did not assume to state the language used. We think the fair import of what Kurkjian said was that it made no financial difference to his company as to which bid for the kiln was accepted. And it did not. Under its agreement with defendant, the plaintiff would receive the same percentage of profit in either event.
That Kurkjian rendered service by which defendant was benefited in having its bid accepted admits of no doubt. There was nothing unlawful in his efforts to induce Hulbert to accept defendant’s kiln as the one most suitable for the service for which it was wanted. Any bidder may do this. No influence was brought to bear upon Hulbert, nor did he have other thought than to secure what the State needed for the lowest price when the merits of the several kilns for which bids were submitted were considered. As he testified:
“We bought what was considered best for the State and at the cheapest price for the bidding thereof. ’ ’
He knew that Kurkjian and Perry, defendant’s representative, had visited him in an effort to secure his selection of defendant’s kiln. When he found a bid from both at the same price, he could but have understood that by arrangement between them the plaintiff was to receive a profit on defendant’s kiln if its bid was accepted. He testified:
“Certain machinery that is not manufactured by the jobber himself, he charges you a ten per cent, for himself for handling.”
We have examined the cases cited and relied upon by defendant’s counsel to sustain their claim, but do not find them convincing or controlling. The rule of law seems well established that a secret arrangement under which a person uses his personal influence to secure the awarding of a public contract to another in consideration of undisclosed compensation to be paid to him for his services, if successful, is void as against public policy. This rule is enforced with much strictness in the.Federal courts. Hayward v. Nordberg Manfg. Co., 29 C. C. A. 438 (85 Fed. 4); McMullen v. Hoffman, 174 U. S. 639 (19 Sup. Ct. 839). In a note to Old Dominion Transportation Co. v. Hamilton, 146 Va. 594 (131 S. E. 850), in 46 A. L. R. 186, the authorities are reviewed at length and the following conclusion reached (p. 203):
“The more generally accepted view, and, it is submitted, the correct one, is that a contract of employment in which compensation is contingent upon success in securing contracts, concessions, etc., from the government through its officers, is not on its face. void because of the character of the compensation.”
Reinhard v. Grand Rapids School Equipment Co., 211 Mich. 165, is there referred, to. In that case it • was held (syllabus):
“An agreement by a corporation to pay its salesmen, one of whom was its officer and sales manager, a commission for procuring government contracts, where it was not contemplated that any illicit methods or any corrupt influences were to be used, held, not void as against public policy.”
We are in accord with the conclusion reached by the trial court:
“Where a contract of employment as an agent to act for a manufacturer, such as in this case made and entered into, contemplates no illicit methods or that any corrupt influence is to be used in securing the contract, the same is legal and binding and can be enforced.”
The judgment is affirmed.
Wiest, C. J., and Butzel, Clark, Potter, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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] |
Potter, J.
Plaintiffs, vendees of city lots in Detroit, were desirous of having built on one of them an income bungalow. Defendants were to acquire title to one of plaintiffs ’ lots on which was to be erected under a verbal contract with defendants a building partially complete, the second story of which was to be finished by plaintiffs. This verbal agreement was made in March, 1926, and defendants were to fully perform their part of the contract by June 5, 1926.'
After the house was up, and according to defendants fully completed on their part, a written land contract was entered into between plaintiffs and defendants, whereby plaintiffs again became vendees of the lot, in May, 1926, which land contract was dated back to March 5,1926. The land contract in part confirmed the terms of the verbal contract as to plaintiffs finishing the second story of the house. It provided:
“All the inside finish on the second floor including lathing, plastering, plumbing, wiring, electric fixtures, painting, decorating, lighting fixtures, labor, inside carpenter finish and all work necessary to complete the second floor ready for occupancy is to be completed and paid for by the purchaser, for which credit has been given on down payment with interest upon interest overdue hereon from maturity to date of payment, at the rate of seven per cent, per annum. ’ ’
Plaintiffs entered into possession. They claim the foundations of the house were not constructed in a workmanlike manner, though so represented to them by defendants, and that by reason thereof it settled, the cellar walls cracked, the basement floor cracked and settled, the plaster on the walls and ceilings cracked, the paper on the walls cracked, the floors took on undulating curves, the doors would not open and close, the house sank in the middle, the furnace tipped over, and defendants, after plaintiffs ’ tenants occupied the house, entered the premises, jacked up the house and put new foundations under the center and sought to repair it, making such a mess that plaintiffs’ tenants moved out, whereupon plaintiffs refused, because of the condition of the building, to pay the monthly payments due on the land contract, and were subsequently formally ejected by summary proceedings before a circuit court commissioner. Plaintiffs, after such summary proceedings were instituted by defendants to recover possession of the premises, filed a bill in equity praying that the verbal agreement between the parties as to the building of the house be decreed to be an integral part of the contract for the purchase of the property by plaintiffs from defendants; that defendants be decreed to perform such revised contract; that the declaration of foreclosure of said land contract by defendants be decreed null and void, and if the court should find the construction of the house as agreed on has become impracticable by the acts of defendants, the land contract be rescinded and defendants be decreed to pay plaintiffs the full amount plaintiffs have expended by virtue of the contract; that defendants be restrained from further prosecuting the suit to recover possession of the premises before the circuit court commissioner of Wayne county, and for other relief.
Upon the filing of this bill, and without giving the statutory bond, an injunction was issued; defendants answered, and on April 25, 1927, the case was ordered transferred to the law side of the court. Subsequently a declaration was filed by plaintiffs against defendants, consisting of three counts. January 9, 1929, the case came on for trial before the court and a jury and resulted in a verdict of $1,000 for plaintiffs. Defendants bring error. The principal question raised by defendants’ several assignments of error is that there was no evidence to sustain the plaintiffs ’ claim of fraud. The court treated the contract as rescinded by plaintiffs. Plaintiffs introduced proof tending to show they expended $1,211.71 in the completion of the second story of the building and also introduced proof tending to show that while defendants admitted prior to the making of the land contract the house was not as it should be, they said they would fix it. Defendants had an assignment of other property of plaintiffs which they threatened to take unless the land contract was signed. They claimed defendants represented the house was complete, whereas it had no proper foundations, and by reason thereof the walls cracked, the basement floors cracked, the house was out of plumb and had to be jacked up, and that therefore the house, which included its foundations, was not completed at the time the contract was entered into as plaintiffs were induced to believe it was. They claim they knew before they entered into the contract that it had sunk, but had been jacked up and the foundations strengthened, but they now claim that this change in the foundations was of no particular value, did not carry out the contract, did not make the foundation sufficient, and was not done in a workmanlike manner, and that the defendants did not disclose to the plaintiffs the cause of the trouble, and that by reason of the failure of the defendants to complete the house, including the foundations, as they agreed to do, the floors became wavy; there is a low spot in one corner of the room, the basement floor cracked, the cement blocks constituting the cellar walls cracked; there is a belt in the center of the basement; the furnace fell down, the sub-flooring was cut through by the defendants so as to allow one side of the house to settle without carrying down the other, the paper on the walls was cracked, and the house was not in substantial compliance with the contract; that plaintiffs believed and relied upon the representations upon the part of the defendants that they would build the house in a good and workmanlike manner, and that in reliance upon such belief induced by defendants, they expended $1,211.71. Considerable testimony was introduced bearing upon when the plaintiffs had knowledge of the defective condition of the house and when the house started to sink; one of defendants testified that he noticed the apparent sinking of the foundations a couple of days after the stanchions to support the superstructure were placed in the cellar, and at another time testifying that it started to sink after the plaster was put on the second floor. It is claimed by defendants that, though they made all the promises claimed by plaintiffs, their violation amounts only to a breach of agreement, and cannot be considered as the basis of fraud.
It is a general rule that the breach of a promise does not constitute fraud; but the mere fact that statements relate to the future will not preclude liability for fraud if the statements were intended to be, and were accepted as, representations of fact, and involved matters peculiarly within the knowledge of the speaker. 26 C. J. p. 1090. Promissory statements were allowed to be shown as the basis of fraud in McDonald v. Smith, 139 Mich. 211.
In this case, where defendants were experienced builders, in charge of the erection of the building, if they gave a false opinion of matters of fact, relating to the foundation of the building, and made false promises as to what they could and would do to remedy its condition, to induce plaintiffs to enter into the contract of purchase, and these were relied upon by plaintiffs to their injury, such opinions and promises were actionable. Collins v. Jackson, 54 Mich. 186; Hubbard v. Oliver, 173 Mich. 337. It is not necessary that such opinions and promises were the sole inducing cause of the contract. As a rule there are many factors which induce one to enter into a contract. A fraud results from a fraudulent statement, if the erroneous belief caused by the statement is a material contributing factor in deciding the other party to enter into the contract. Morawetz, Elements of the Law of Contracts (2d Ed.), p. 41; 20 Cyc. p. 41.
We think there was sufficient to carry the. case to the jury, and that the verdict resulted in no injury to defendants, who have the property they built plus the labor and material furnished and paid for by plaintiffs. The other assignments are without merit, and judgment is affirmed, with costs.
Wiest, C. J., and Btjtzel, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred, | [
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Sharpe, J.
The bill of complaint herein was filed to secure rescission of a contract whereby plaintiffs transferred certain property to the defendant Alex H. Pearson and received from him a deed of land in the township of Hamburg, in the county of Livingston, described as follows:
“The east half of the southeast quarter of the northwest fractional quarter of section '30, town 1 north, of range 5 east, Michigan. Above described land lies directly west of and corner on Half Moon Lake. ’ ’
Plaintiffs had decree. Defendants appeal.
Arthur J. B. Maim (hereafter called the plaintiff) is a builder. He was also engaged in purchasing and subdividing real estate in Livingston county. His attention was called to this land by Chester C. Peach, a nephew of Dr. Pearson, who represented him in the transaction, and they together visited it. Plaintiff testified that Peach then pointed out the boundary lines of the land, from which it appeared that it contained about 400 feet of lake frontage. Peach, as a witness for defendants, testified:
. “I showed him where the north boundary was the first thing, where the west boundary was, where the road was a boundary, where the fence runs straight north and south as far as where it turned to the lake. I never made any definite boundary because I didn’t know. ’ ’
The deal was concluded on August 28,1926. Soon thereafter, plaintiff discovered that the land had but a few feet of frontage on the lake, and, on Pearson’s refusal to abrogate the contract, he brought this suit for rescission. His right thereto is the only question discussed by appellants in their brief.
The defense insists that Dr. Pearson gave plaintiff clearly to understand that he was simply selling him the land described in the deed, and that he must satisfy himself as to the lake frontage it contained; that, accompanied by Peach, plaintiff went to the office of the county surveyor of the county, and the three then went out to see the land, and that the surveyor then told plaintiff that the boundaries pointed out by Peach were not correct, and that the land had little, if any, lake frontage.
There is some uncertainty in the record as to what occurred when this visit to the land was made. It cannot be doubted that Peach thereafter insisted that the description did contain lake frontage. On the same day the deal was completed, as agent for Pearson he signed and delivered to plaintiff the following :
“I, Chester C. Peach, as agent for A. H. Pearson, hereby guarantee and represent in consideration of Arthur J. B. Mann purchasing the 20 acres on Half Moon Lake, described as follows: The east one-half of the southeast part of the northwest fractional quarter section thirty, township one north of range five east, Michigan. That said property has established lines on Half Moon Lake, including and covering portion of lake, and that we guarantee that the road leading to and from property had been established for a period of over fourteen years, and agree in the event water front rights, or egress or ingress should ever be contested, to protect Arthur J. B. Mann and provide the above. ’ ’
Thereafter, plaintiff again interviewed Pearson about the matter and was shown a receipt for a down payment at the time of his purchase on June 26, 1926, in which the purchase price was stated therein to be $2,000 for “twenty acres of land on the John Farley farm bordering on Half Moon Lake-with lake frontage. ’ ’ Plaintiff testified that Pearson then said to him,
“I have got lake frontage.. * * * You go ahead subdivide it. If anyone contests it I will protect you. ’ ’
Further investigation satisfied plaintiff that title to but a few feet of lake frontage passed to him under his deed, and at the hearing the defendants did not claim, nor do their attorneys here claim, that he was mistaken.
It clearly appears from the testimony of the witnesses that Mann desired to purchase this property for subdivision purposes, and that his intention in this respect was communicated to both Dr. Pearson and Peach; that its value for this purpose was dependent upon its having a considerable frontage on the lake; that its fair value for farming purposes was about $250, and that he paid $5,000 for it and assumed a mortgage on it of $750. It also clearly appears that both Dr. Pearson and Peach at the time of the transfer believed that it had a considerable amount of frontage on the lake. But it did not have. The trial court heard and saw the witnesses, and personally inspected the property. He found that the plaintiff purchased relying upon the representations made to him by Peach as to the boundary lines of the land, that he was deceived thereby, and was entitled to rescission by reason thereof.
In our opinion these findings are sustained by the record. The decree is affirmed, with costs to appellees.
"Wiest, C. J., and Butzel, Clark, Potter, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision. | [
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North, J.
Plaintiff brought suit in replevin in justice’s court to recover from defendant 80 crates of blueberries. Upon appeal to the circuit court there was trial by a jury and verdict in favor of the defendant for the value of the berries replevined. Plaintiff has presented to this court the following assignments of error:
1. That since plaintiff presented record evidence of title in those through whom he claims the right to take the berries from certain lands, the court should have held as a matter of law that title to these lands was in those from whom plaintiff received his rights, and it was error to submit this as a question of fact for determination by the jury.
2. That there was error in the charge to the jury.
3. That the verdict was contrary to the overwhelming weight of evidence.
4. That defendant did not establish ownership of the berries, and it was error to allow him to take judgment for the value thereof.
Plaintiff claims he had secured the so-called berry rights in approximately 36,000 acres of land in northern Michigan. The record discloses that blueberries grow abundantly in this locality, and that in season hundreds of berry pickers camp there for weeks and gather these berries which they sell to buyers and jobbers, who temporarily locate in that vicinity. The defendant was such a buyer. During the season of 1928 he bought between 3,000 and 4,000 crates. He had purchased these 80 crates here in suit at $2 per crate from pickers who had gathered them from lands in which plaintiff had the berry rights or from other lands in the same locality. The testimony shows that these berry pickers who sold to the defendant covered a territory which included hundreds of acres of berry producing lands in which plaintiff had no rights whatever. At the time and place these 80 crates were replevined from the defendant he had in his possession two truck loads of berries. Those replevined were taken from one of the trucks only. There is no proof in this record from which it is possible to determine what portion, if any, of these two truck loads of berries came from the lands in which plaintiff claims to have the berry rights. At the close of the proofs this was called to the trial court’s attention by the defendant’s motion for a directed verdict on the following ground:
“Even if it be held that plaintiff was the lawful owner of the berry rights upon certain lands, there is no evidence in the record sufficient to go to the jury showing that the berries seized in this case were picked upon lands whereon said plaintiff had berry rights. For that reason plaintiff is not entitled to recover. ’ ’
Defendant’s motion for a directed verdict was denied. It should have been granted, because there was no evidence that the berries seized under the writ or any portion of the two truck loads of berries of which the 80 crates were a part were taken from plaintiff’s lands. Since the defendant was entitled to a directed verdict, the plaintiff suffered no prejudice from those incidents of the trial upon which he has assigned error, with the possible exception of one about to be noted. By one of his assignments of error plaintiff has challenged defendant’s right to recover a judgment for the value of the berries replevined. Defendant filed a waiver of return of the property and demanded judgment for its value. The court refused to give the following charge requested by the plaintiff:
“If you should find against the plaintiff, the defendant would not be entitled to a judgment for the value of the berries, because he has not shown that he owned any title to the berries. ’ ’
This request was properly denied, because the defendant bought these berries of various pickers in the regular course of the local trade. Some of these pickers had been given permits by the plaintiff to gather berries upon his lands; and further, a large acreage in the locality was open as commons on which the public in general was allowed to gather berries. There is no testimony from which it is possible to ascertain what part, if any, of the 80 crates for which the defendant recovered were gathered by the pickers who were trespassing upon plaintiff’s lands. As noted above, the defendant had paid the pickers who brought the berries to him $2 per crate in the regular course of trade. Prima facie he was a bona fide owner of this property, and therefore, in view of the jury’s verdict, entitled to recover its value from the plaintiff by whom it had been wrongfully replevined. The judgment of the lower court is affirmed, but since the appellee did not file a brief in this court, no costs will be awarded.
Wiest, C. J., and' Btjtzel, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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Clark, J.
Plaintiff was riding in an automobile with two other men, one of them Gager, the driver, to their place of employment in Detroit. Driving on West Grand boulevard and coming to the intersection of the boulevard and Hamilton avenue, the automobile collided with a street car of defendant, and plaintiff was severely injured. He had verdict for $8,000. On motion for judgment notwithstanding the verdict, defendant had judgment on the ground of contributory negligence as a matter of law. Plaintiff brings error, presenting the single question that the court erred in ordering the judgment. Defendant also has 53 assignments of error, 39 of which are discussed and relied upon in its brief.
Whether Gager, the driver of the automobile, was guilty of contributory negligence (imputed to plaintiff riding with him) was a question for the jury, and the court erred in ordering judgment for defendant. On this matter the evidence must be viewed most favorably to plaintiff. Plaintiff was going east on the boulevard just before daylight. The street car was moving north on Hamilton. No other vehicles or cars were near the intersection at the time. Gager slowed the automobile for the intersection to between 7 and 9 miles per hour. When at or near the building line on the west side of Hamilton he saw the street car about 25 or 30 feet from the sidewalk line. It appeared to be coming to a stop. Gager, who had run- street cars, knew that the street ear was required to stop on the near side of the boulevard, and before crossing, and he had such requirement in mind at the time, Having observed the street car, he looked the other way, to the north on Hamilton, and proceeded to cross with the result stated. Plaintiff’s witnesses testified that the street car did not stop before crossing the boulevard. An ordinance of the city required such stop. Plaintiff had testimony that the speed of the street car at or near the moment of impact was about 20 miles per hour. Gager was not bound to anticipate that the street car would cross the boulevard without stopping. His knowledge of the rule requiring the street car to stop, and his reliance on it at the time, and his observation that the car appeared to be stopping, made the question of whether his attempting to cross in front of the approaching street car was contributory negligence one of fact for the jury. See Green v. Railway, 218 Mich. 59; Theisen v. Railway, 163 Mich. 68. And for review of authorities on the matter, see notes 46 A. L. R. 1021 and 28 A. L. R. 253; Schmidt v. Philadelphia Rapid Transit Co., 253 Pa. 502 (98 Atl. 691, 17 N. C. C. A. 711-712, note). Plaintiff is entitled to judgment on the verdict, unless defendant’s assignments of error require reversal.
A number of such assignments present the contention that the ordinance or ordinances were not admissible, not having been pleaded. The trial court permitted an amendment in this regard, and admitted the evidence. But it is urged that plaintiff had not yet amended formally. If that be so, he may amend here.
Defendant’s chief point is that the verdict is against the great weight of the evidence. The issue of greatest importance is whether the street car stopped before crossing the boulevard. At least two of plaintiff’s witnesses testified that it did not stop, the two who rode with plaintiff in the automobile. Their testimony is consistent and without badge of falsehood. This is also true of the testimony of witnesses for defendant on that issue, who said the car did stop. That defendant had the greater number of witnesses is not decisive. It seems improbable that a motorman would run a street car without stopping across a thoroughfare like the boulevard. But on the other hand, it was before daylight, and the record indicates no other vehicles or cars at or near the intersection at the time. On full consideration of the evidence, we are not moved to set aside the verdict on this ground.
It is next urged that the verdict is excessive. The rule to. be..used in determining this question is stated in Fishleigh v. Railway, 205 Mich. 145, and it has been restated many times, and need not be repeated here. Applying tbe rule to this case permits the verdict to stand.
The court was not requested to instruct of the doctrine of imputed negligence, of imputing to plaintiff, a voluntary passenger of mature years, the negligence of the driver of this private conveyance, except this:
“The plaintiff, Mr. Kellstrom, and his attorneys, must prove to you by a preponderance of the evidence, that the driver of the auto, Mr. Ted Gager, was in no way negligent in causing this accident.”
The court did instruct that, before plaintiff could recover, he must establish “that there was nothing done in operating the automobile which was negligent, known in law as contributory negligence,” and the court gave four of defendant’s requests in which the jury was advised in what respects it might find Gager to have been negligent. We think, in view of the brief quoted request, the court’s instructions were sufficient to escape a holding of reversible error. And in this regard there is some confusion in the charge, of which complaint is made. The court in some instances instructed as though the. plaintiff himself had driven the automobile. But in the beginning of the charge he spoke of “an automobile in the hands of the driver of the plaintiff in this case, or with whom he was at the time riding. ’ ’ In other instances he mentioned Gager by name as the driver of the automobile. The jury heard the simple facts, and we are not impressed that they were misled in this respect by the court’s instructions, and this, with the absence of a request for more specific instruction, requires a holding that the matter is not reversible error.
A number of other assignments are on the charge and of failure to charge as requested. Nothing will be gained by an extended discussion. It is sufficient to say that the requests, so far as proper, were fairly covered, and the charge, taken as a whole, was not prejudicial to defendant. The defendant’s assignments present no reversible error.
Reversed and remanded, with direction to enter judgment on the verdict. Costs to plaintiff.
McDonald, Potter, Sharpe, and Fead, JJ. concurred with Clark, J. | [
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Sharpe, J.
The plat of Highland Park subdivision was recorded on November 11, 1886. It embraces the territory lying between Woodward avenue on the east and Hamilton (formerly Greenwood) avenue on the west, and between Glendale avenue on the north and the alley south of Cortland avenue on the south. It contains 216 lots. Dotted red lines on the plat run across the lots fronting on Highland and. Cortland avenues, and near this line on the, lots fronting on Highland appear the words “Line of buildings 30 ft. from line of Highland ave.” The plat is otherwise unrestricted.
The north side of Highland avenue for a distance of 600 feet west of Woodward, and of a depth of 234 feet, is not included in this plat. The defendants own lot 174 and the east 20 feet of lot 173, adjoining this land on the west. Next adjoining defendants’ land on the west is the property of the plaintiff Michigan Bell Telephone Company. Second avenue lies a few hundred feet further to the west. The other plaintiffs own residence properties on the south side of Highland avenue between Second and Woodward avenues.
This suit is brought to enjoin the defendants from constructing an apartment building on their property with the front thereof flush with the street line. The trial court held that plaintiffs were entitled to the relief prayed for, but limited the restraint to 20 feet from the street line, for the reason that Highland Manor, hereafter referred to, had been permitted to be so constructed. From the decree entered defendants have appealed.
There are two apartment buildings on the 600-foot strip whose fronts are on the street line; that to the west adjoins the lots of the defendants. The telephone company has constructed a building for its use on its property. It stands back 30 feet from the street line. Across the street, and a little further to the east, stands a large apartment building known as “Highland Manor,” the front of which extends to within about 20 feet of the street line. A church stands on the southwest corner of Highland and Woodward, built close to the street line of the former, and several other buildings to the west of it were built without regard to the 30-foot building line. To the west of Second avenue many buildings have been erected for use as apartments or business, with little, if any, regard for the dotted line or notation on the plat as a restriction; one of which, erected by the defendants, known as the Daniel Apartments, containing 59 apartments, extends to within 7 feet of the street line, the steps leading down thereto.
Before defendants’ purchase, they had the title examined. The use of the property was in no way restricted in any of the former conveyances. The dotted line on the plat was seen. They were advised (and the evidence submitted discloses) that in a suit brought in 1921 in the circuit court for Wayne county, in chancery, wherein it was sought to enforce the 30-foot building line as a restriction by property owners on Highland avenue near Hamilton avenue, the trial court had held that this line was not a restriction, and no appeal therefrom had been taken. They began the erection of an apartment building to cost about $225,000, and, after an expenditure of a considerable sum for plans and excavation and construction work, were enjoined from proceeding.
Defendants insist that the dotted line, with the notation on it, “Line of buildings 30 ft. from Highland avenue,” does not in itself constitute a valid building line restriction. In this we think they are right. A restriction is in the nature of a covenant, and may not be implied in any conveyance. 3 Comp. Laws 1915, § 11691. It must be expressed in words, or by such apt reference to the plat as to give expression to the grantor’s purpose. Such a line appeared upon the plat involved in Windemere, etc., Ass’n v. Bank, 205 Mich. 539, but was not decisive of the conclusion there reached. In Hill v. Rabinowitch, 210 Mich. 220, the plat designated certain lots for residence purposes and certain others for mercantile purposes, and in the restrictions therein it was provided that no residence should be erected nearer to the street than the building line shown thereon. . We have no other decision in which the question was presented. Defendants’ contention is, however, supported by many decisions in other States. See McCloskey v. Kirk, 243 Pa. 319 (90 Atl. 73); Zinn v. Sidler, 268 Mo. 680 (187 S. W. 1172, L. R. A. 1917 A, 455), and cases cited.
Plaintiffs’ counsel say “that it is not the line alone and in itself upon which the plaintiffs rely.” It is their claim that “all the necessary elements of a general plan have been shown.” They insist that the dotted line and the notation on the plat indicate an intention on the part of the platter to restrict the use of the property to residence purposes, and to require each of such residences to be set back 30 feet from the line of the street. ,Had such intention as to residences been adhered to by the owners, and enforced by them and by early purchasers of lots, the line and writing on the plat might be here urged as the origination by the platters of a general plan to secure uniformity in the front line of all residences constructed.
While building lines are appropriate to and of value to lots restricted to residence purposes, they are not appropriate to and but tend to lessen the value of lots that may be used for business purposes. The purpose of restrictions in residential property is to benefit the owner by securing to him a better price for the land platted, and to secure to purchasers the right to live in a purely residential district, unaffected by the conditions which prevail in a business district, or in one in which residences and business places are indiscriminately mixed. Soon after the record of the plat, conveyances were' made to four different grantees of lots on Cortland and Glendale avenues, containing restrictions of use to residence purposes, but later, in 1888 and 1889, more than 100 lots were conveyed by the owners, in which no such restriction appeared. The right to enforce it is not now claimed.
“Owners of property have rights therein which must be respected. It is only under unusual circumstances that its use will be restricted other than by the provisions in the conveyance on which the title rests.” Miller v. Ettinger, 235 Mich. 527, 530.
It should appear not only that such a plan had been originated, but “that it was being consistently followed and maintained.” Library Neighborhood Ass’n v. Goosen, 229 Mich. 89, 95.
“One of the best evidences that it was intended to be a restricted district is the fact that the restrictions have been observed and nothing but dwellings erected.” French v. White Star Refining Co., 229 Mich. 474, 477.
Intending purchasers are thereby charged with notice.
As was said in Sanborn v. McLean, 233 Mich. 227, 230 (60 A. L. R. 1212):
“Such a scheme of restrictions must start with a common owner; it cannot arise and fasten upon one lot by reason of other lot owners conforming to a general plan.”
And further, as to the necessity of notice (232):
“We do not say Mr. McLean should have asked his neighbors about restrictions, but we do say that with the notice he had from a view of the premises on the street, clearly indicating the residences were built and the lots occupied in strict accordance with a general plan, he was put upon inquiry * * *.”
An examination of the record, including the survey, plats, and photographs introduced, leads us to the conclusion that persons seeking to purchase property in this subdivision, from observation as to the use which had been made of the several lots then occupied, would not be led to believe that a general plan of construction under which all buildings must be erected 30 feet from the street line was in existence.
It follows that a decree may be here entered dismissing the bill of complaint, with costs to appellants.
Wiest, C. J., and Btttzel, Clark, Potter, North, and Fead, J J., concurred. McDonald, J., did not sit. | [
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Potter, J.
September 8, 1916, Freeman W. Wilcox purchased on land contract paying down $2,750—
‘■‘All that certain piece or parcel of land lying and being situated in the village of St. Clair Heights, county of Wayne and State of Michigan, and more particularly known and described as lot 120, south twenty-five (25) feet of lot 121, and lot 122, and north five (5) feet of lot 121 of the Strassburg Sub. in the said village of St. Clair Heights, county of Wayne, Michigan, making 123 feet on Warren avenue and 90 feet on Garland avenue.”
November 28, 1916, William J. Black and Frank E. W. Bright filed a bill in equity to foreclose the land contract. December 14, 1916, defendant Freeman W. Wilcox entered his appearance. February 28, 1917, a decree of foreclosure was entered providing for sale of the premises. May 4, 1917, the premises were sold. February 7, 1929, the bill of complaint herein was filed to set aside the decree of foreclosure of the land contract, the sale had in pursuance of such decree, to reinstate the land contract, and to set aside subsequent deeds, conveyances, and incumbrances upon the land above de scribed. Defendants moved to dismiss the bill of complaint upon the grounds of laches, former adjudication, and want of equity. From an order dismissing the bill of complaint, plaintiff appeals.
“The rights of mortgagor and mortgagee differ from those of vendor and vendee. The mortgagor holds the fee; the mortgagee has a lien. The vendor holds the fee; the vendee has an equitable interest.” Cady v. Taggart, 223 Mich. 191.
‘ ‘ The vendee gets the equitable title, but the legal title still remains in the vendor, and is held as security for the payment of the purchase price.” Hooper v. Van Husan, 105 Mich. 592; 39 Cyc. p. 1302.
“There is a plain distinction between the lien of the grantor after a conveyance, and the interest of the vendor before conveyance. The former is not a legal estate, hut is a mere equitable charge on the land; it is not even, in strictness, an equitable lien until declared and established by judicial decree.” 3 Pomeroy’s Eq. Jur. (2d. Ed.), §1260; Jones v. Bowling, 117 Mich. 288.
When land is sold on a contract, the purchaser takes the equitable title subject to the vendor’s lien thereon. The enforcement of such vendor’s lien is peculiarly within the cognizance of equity courts. Field v. Ashley, 79 Mich. 231; Walker v. Casgrain, 101 Mich. 604; Cady v. Taggart, 223 Mich. 191.
The bill filed herein indicates the court on foreclosure of the land contract had jurisdiction of the subject-matter and of the parties. A bill in equity will not lie to set aside a judicial sale for irregularity.
“Chancellor Kent said in Shottenkirk v. Wheeler, 3 J. C. R. 280, that there was no case in which equity had undertaken to question a judgment for irregularity. Every court has power to control its own process in such a way as to prevent the abuse of it” (Cavenaugh v. Jakeway, Walk. Ch. 344); not to quiet title against an irregular judicial sale (Rhode v. Hassler, 113 Mich. 56); nor may an irregular sale be attacked by an action of ejectment (Hoffman v. Bushman, 95 Mich. 538), the reason being that the original decree was an adjudication that it was not itself irregular.
“A former adjudication of the right of action, where the court had jurisdiction of the subject-matter and of the parties, is unquestionably a bar to an action for the same debt or claim, and is conclusive where the same subject-matter is sought to be again litigated, no matter how, between the same parties. In such case it is no answer to say, ‘There were questions which were not raised or litigated.’ It is enough. if they might have been raised and litigated.” Bond v. Markstrum, 102 Mich. 11.
The bill filed will not lie to impeach the decree attacked.
The sale on foreclosure of the land contract is attacked because made in less than six months after filing the bill to foreclose the land contract and because there was not six months’ equity of redemption after sale given by the decree. It may be conceded that were this the foreclosure of a mortgage,, it would be irregular, but the statute and rule relied upon, 3 Comp. Laws 1915, § 12677; Circuit Court Rule No. 58, § 5, have no application to the foreclosure of land contracts; Jones v. Bowling, 117 Mich. 288; City Lumber Co. v. Hollands, 181 Mich. 531; Cady v. Taggart, 223 Mich. 191; Drysdale v. P. J. Christy Land Co., 248 Mich. 184.
The bill filed describes the land. It does not affirmatively appear by the bill of complaint that it should have been sold in separate parcels. The sale is attacked because it is claimed that the necessary notices were not posted. The bill of complaint alleges that the sale was made May 4, 1917. The bill of complaint herein was filed February 7, 1929. More than 11 years elapsed between the sale attacked and the filing of the bill. Plaintiff stands in the position of his grantors or vendors. He is bound by any equities which defendants have against the contract purchaser in the contract foreclosed. They cannot stand by and see valuable improvements made upon the premises, and then, after they are completed, seek to obtain the benefit thereof in a court of equity. It was their duty to act promptly.
Under the facts in this case, we think plaintiffs not only guilty of laches, but that they are estopped from insisting upon the relief prayed in this case, and that they are barred by the statute of limitations, 3 Comp. Laws 1915, § 12311, from maintaining this suit. The decree of the trial court is affirmed, with costs.
Wiest, C. J., and Butzel, Clark, McDonald, Sharpe, Fead, and North, JJ., concurred. | [
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Zahra, J.
A jury convicted defendant of distributing or promoting child sexually abusive material, MCL 750.145c(3); possession of child sexually abusive material, MCL 750.145c(4); and using the Internet or a computer to communicate with any person to commit conduct proscribed under MCL 750.145c(4) (possession of child sexually abusive material), MCL 750.145d. The trial court sentenced defendant to concurrent prison terms of seventeen to eighty-four months’ imprisonment for his conviction of distributing or promoting child sexually abusive material, sixteen to twenty-four months’ imprisonment for his conviction of using the Internet or a computer to possess child sexually abusive material, and 365 days in jail for his conviction of possession of child sexually abusive material. Defendant appeals as of right. The most significant issue presented on appeal is whether defendant may be found to have distributed child sexually abusive material in violation of MCL 750.145c(3) on the basis that he returned to his employer a laptop computer that contained within it child sexually abusive material. We hold that this conduct did not violate MCL 750.145c(3). We therefore reverse defendant’s conviction and sentence for distributing or promoting child sexually abusive material. We affirm defendant’s remaining convictions and sentences.
I. BASIC FACTS AND PROCEEDINGS
Defendant was a field technician for Comcast OnLine (Comcast), a branch of the Comcast cable company that provides cable Internet access. Com-cast provided defendant with a laptop computer for employment-related use. Before the computer was issued to defendant, the hard drive was “cleaned” of its prior contents.
On August 9, 2000, defendant unilaterally terminated his employment with Comcast. Defendant called Christopher Williams, an employee of Comcast, and stated that he would return Comcast’s equipment and work van the ensuing weekend. However, Williams advised defendant that the equipment would be collected that day. Defendant informed Williams that the work van would be parked in front of defendant’s house, and that the keys and the Comcast equipment would be inside the van. Williams picked up the van and the equipment, including the laptop computer.
Williams returned to Comcast’s office and began assessing whether the computer needed to be reformatted before being issued to another technician. Williams found files on the computer that con tained pictures of a partially naked young girl. Williams gave the computer to Carl Radcliff, a data support technician for Comcast. Radcliff testified that he eventually found “a series of child pornography” when he was searching picture files known as “jpg” files on the computer. Radcliff indicated that the pornographic material on the computer was not in a readily available location because it was “buried inside of what’s known as a user profile.” Radcliff then took the computer to Stephen Hill, a Comcast system engineer, informed Hill what he had found on the computer, and recommended turning the matter over to the authorities. Hill forwarded the computer to Danielle Kolomyjec, who worked in the personnel department of Comcast. Kolomyjec turned the computer over to Ronald Hanoka, Comcast’s security director for the Midwest division. Hanoka immediately took the computer to Detective Edward Stack of the St. Clair Shores Police Department.
Detective Stack testified that he and another detective accessed JPG files in the computer and, in short, found images of child pornography. Sergeant Joseph Duke, the supervisor of the Computer Crimes Unit of the Oakland County Sheriff’s Department, found over five hundred images that he believed qualified “as either child sexually abusive material or child erotica” on the computer. Sergeant Duke believed that the photographs originated from the Internet. Sergeant Duke also indicated that although the hard drive of the computer could have been reformatted so that its files would not be accessible, the files were difficult to find and he “had to go down 7 directory levels from the root to get to the images that were shown to the jury.”
Defendant was arrested and a search of defendant’s home revealed additional child sexually abusive material. In sum, Sergeant Duke’s investigation discovered over 6,500 photographs that qualified as child sexually abusive material or “child erotica,” and books and computer text files that described “fantasy stories about the molestation of children.” At the time of defendant’s arrest, defendant denied knowledge of child pornography on the computer.
David Joseph, a children’s protective services worker with the Family Independence Agency, interviewed defendant because there was evidence of defendant’s involvement with child pornography and there were two minor children in defendant’s home. Joseph indicated that defendant initially denied responsibility for the child pornography found on the computer. Joseph testified that defendant eventually stated that defendant’s wife had been “emotionally unavailable” to defendant and that “he turned to the Internet and began exploring pornography which initially started out as adult material.” Joseph indicated that defendant told him that
at some point he encountered child pornography; and I remember specifically he likened it to something of a train wreck or a car accident where he couldn’t really account for why it is that he found this materials [sic] attractive, but had developed sort of an appetite for these things and began accumulate [sic] photographs on the Internet, downloading and sharing pornography involving children.
Joseph also testified in regard to other statements that defendant made to him about child pornography:
If I recall he had several computers in the house; and he said he had basically amassed quite a collection over a period of four years; and that he was growing more con cerned about whether or not his children or his wife would stumble upon these computers — these images on the computer; and he had begun basically a systematic sort of disas-sembly of the computers so that they wouldn’t be accessible to other family members, and that he would store the materials for his own use on the laptop, the Comcast computer. And I inquired of him at that point, was he concerned about somebody else finding the Comcast computers, and he indicated that typically when a Comcast employee leaves the employment, the laptop is basically reinstalled with new programs, and that he didn’t feel as though there would be anybody that would go through those individual files — that his belief was that the Comcast computer would just sort of be — and I’m not a computer expert, but that the hard drive would sort of just be wiped out. The necessary Comcast programs would be reinstalled, and that no one would discover his images of the pornography on the computer.
Joseph indicated that defendant said he found child pornography sexually gratifying. Defendant replied, “[cjorrect” when asked if “he had gotten these [child pornography] images from the Internet and from sharing with others.” Joseph also said that it was his impression from talking with defendant that “he was a part of a club, if you will, of people that found images of children sexually gratifying and would exchange and get and give material.” When asked if this was “a computer Internet club type thing,” Joseph replied, “[c]orrect.”
n. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to establish that he distributed child sexually abusive material in violation of MCL 750.145c(3). Due process requires that a prosecutor introduce evidence sufficient to justify a trier of fact to conclude that the defendant is guilty beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). “ ‘[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.’ ” People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002), quoting People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). Underlying issues of statutory interpretation are reviewed de novo. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
Defendant was convicted of distributing child sexually abusive material in violation of MCL 750.145c(3), which provided in relevant part:
A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more tiran 7 years, or a fine of not more than $50,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child ....
At trial, the prosecution argued that defendant distributed child sexually abusive material by returning to Comcast the computer that contained such material. The prosecutor also argues on appeal that defen dant promoted and distributed child sexually abusive material to others over the Internet. While there is evidence supporting this theory of distribution through the Internet, the jury specifically found defendant not guilty of using a computer to promote or distribute child sexually abusive material. Moreover, the jury verdict indicated that defendant used the Internet or a computer only to possess child sexually abusive material. Given the prosecutor’s theory that defendant distributed child sexually abusive material by returning to Comcast the computer containing such material and the jury’s verdict of acquittal on the charge of using a computer to distribute or promote such material, we conclude that defendant’s conviction solely rests upon the theory primarily advanced by the prosecution at trial: that defendant distributed child sexually abusive material by returning to Comcast a computer that contained such material. Accordingly, our review of the sufficiency of the evidence is limited to the theory that resulted in defendant’s conviction.
On appeal, defendant argues that the prosecutor’s case relies on a construction of the statute that is inconsistent with the common and accepted meaning of the word “distributes.” Defendant maintains that, given the common and accepted meaning of the word “distributes,” he did not distribute child sexually abusive material because he did not intend for anyone to see the material on the computer.
To ascertain the meaning of the word “distributes” in MCL 750.145c(3), we apply the following rules of statutory interpretation.
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999); Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). Initially, we review the language of the statute itself. House Speaker v State Admin Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). If the statute is unambiguous on its face, the Legislature is presumed to have intended the meaning plainly expressed and further judicial interpretation is not permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
“Only where the statutory language is ambiguous may a corut properly go beyond the words of the statute to ascertain legislative intent.” Sun Valley Foods Co v Ward, 460 Mich 230, 236;596 NW2d 119 (1999). An ambiguity of statutory language does not exist merely because a reviewing court questions whether the Legislature intended the consequences of the language under review. An ambiguity can be found only where the language of a statute as used in its particular context has more than one common and accepted meaning. Thus, where common words used in their ordinary fashion lead to one reasonable interpretation, a statute cannot be found ambiguous. [Colucci v McMillin, 256 Mich App 88, 94; 662 NW2d 87 (2003).]
The word “distributes” is not defined in the statute, nor is there any published cases interpreting the meaning of “distributes” in MCL 750.145c(3). “Where the Legislature has not expressly defined the common terms used in a statute, this Court may turn to dictionary definitions ‘to aid our goal of construing those terms in accordance with their ordinary and generally accepted meanings.’ ” In re Certified Question from United States Court of Appeals for Sixth Circuit, 468 Mich 109, 113; 659 NW2d 597 (2003), quoting People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). “Distribute” has several definitions, including: “1. to divide and give out in shares; allot. 2. to spread throughout a space or over an area; scatter. 3. to pass out or deliver: to distribute pamphlets. 4. to sell (merchan dise) in a specified area.” (emphasis in original). Random House Webster’s College Dictionary (2d ed) (1997). As applied here, one definition of “distributes,” i.e., delivers, describes defendant’s conduct. However, the remaining definitions are not applicable to defendant’s conduct. Thus, because the word “distributes” comprises several definitions that each describes different conduct, we conclude that a single common meaning of the word “distributes” cannot be ascertained.
The ambiguity of the word “distributes” was further shown during the jury’s deliberations in this case. The record reflects that the jury expressed confusion in applying the word “distributes” without regard to a mens rea requirement corresponding to the act of distribution. The jury requested clarification on the definition and meaning of the word “distributes.” The trial court declined to define the word “distributes” for the jury, and, instead, left it to the jurors to define and give meaning to the word.
The prosecution’s construction of the statute interprets the word “distributes” broadly. Applied here, the prosecution claims that the act of delivering the computer with the objectionable material contained within it constitutes distribution of child sexually abusive material in contravention of MCL 750.145c(3). The prosecution advocates a construction of the statute that does not require that defendant possessed a mens rea for the act of distribution. Defendant argues that the word “distributes” should be construed to imply a mens rea requirement that narrows the scope of the word “distributes.” Specifically, he argues that each of the definitions of the word “distributes” implies an intent to disseminate with a purpose. Defendant argues that his interpretation of “distributes” is supported by the statute, which contains terms and phrases indicative of commercial or purposeful distribution: “finances the distribution or promotion,” or “receives for the purpose of distributing or promoting,” or “conspires,” “attempts,” or “prepares to distribute, receive, finance, or promote.”
We conclude that the word “distributes” is ambiguous as used in this statute. Reasonable minds can differ concerning the meaning of this statute, and therefore judicial construction of the statute is appropriate. Colucci, supra at 94. The prosecution’s construction of the word “distributes” is exceedingly broad, only requiring as evidence to support a conviction that an actor in possession of child sexually abusive material transfers possession of such material to another person. On the other hand, defendant’s construction, while rational, relies on implication of a mens rea requirement that is not expressly stated in the statute.
When faced with an ambiguity in a statute, “we should give effect to the interpretation that more faithfully advances the legislative purpose behind the statute.” People v Adair, 452 Mich 473, 479-480; 550 NW2d 505 (1996). In doing so, we consider “the object of the statute in light of the harm it is designed to remedy, and strive to apply a reasonable construction that will best accomplish the Legislature’s purpose.” Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994), and People v Rehkopf, 422 Mich 198, 207; 370 NW2d 296 (1985).
The purpose of this statute is to prohibit the dissemination of child sexually abusive material in the state of Michigan. Without reference to an actor’s intent in regard to the act of distribution, the statute prohibits all transfers of such material, including transfers to proper authorities or the disposal of the material. Clearly, the Legislature did not intend to prohibit these transfers of child sexually abusive material. In addition, construing the word “distributes” in a way that would prohibit transfers of child sexually abusive material to proper authorities is not related to any plausible harm that the statute is designed to prevent. Therefore, we seek a narrowing construction of the word “distributes” to best accomplish the purpose of the statute.
In United States v X-Citement Video, Inc, 513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994), the United States Supreme Court interpreted a statute similar to MCL 750.145c(3). In X-Citement Video, Inc, the owner and operator of X-Citement Video, Inc (Rubin Gottesman), sold an undercover police officer forty-nine pornographic videotapes featuring an underage participant. Evidence at trial suggested that Gottes-man was fully aware of the underage participant. He was convicted for knowingly transporting or distributing a visual depiction that involved the use of a minor engaging in sexually explicit conduct in violation of 18 USC 2252. On appeal, Gottesman argued that 18 USC 2252 was unconstitutional on its face because it lacked a necessary scienter requirement. Apparently, without a scienter requirement, a defendant could be convicted of knowingly transporting or distributing a visual depiction involving the use of a minor engaging in sexually explicit conduct without knowing that the depiction was of a minor. For instance, the Court noted that a Federal Express courier may knowingly transport a package containing such a depiction and violate the statute, even though the courier did not know the contents of the film. X-Citement Video, Inc, supra at 66-70.
Initially, the Court found that 18 USC 2252 was akin to the “common-law offenses against the ‘state, the person, property, or public morals,’ ” X-Citement Video, Inc, supra, at 71, quoting Morissette v United States, 342 US 246, 255; 72 S Ct 240; 96 L Ed 288 (1952), “that presume a scienter requirement in the absence of express contrary intent.” X-Citement Video, Inc, supra at 71-72. The Court then addressed the issue as whether the scienter requirement “knowingly,” which expressly modified the acts of transporting or distributing, also modified the element that required that the prohibited material depict a minor engaging in sexually explicit conduct. Id. at 68. The Court held that due process required that the word “knowingly” modify this phrase, in part because of “the respective presumptions that some form of scien-ter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.” Id. at 69. Moreover, the Court indicated its concern that without such an interpretation, the statute “ ‘criminalize [s] a broad range of apparently innocent conduct.’ ” Id. at 71, quoting Liparota v United States, 471 US 419, 426; 105 S Ct 2084; 85 L Ed 2d 434 (1985).
The analysis employed by the United States Supreme Court in X-Citement Video, Inc, is instructive here. MCL 750.145c(3), which is similar to 18 USC 2252, is likewise akin to the “common-law offenses against the ‘state, the person, property, or public morals,’ ” X-Citement Video, Inc, supra, at 71, quoting Morissette, supra, at 255. Consequently, a mens rea requirement may be presumed in the absence of an express contrary intent. X-Citement Video, Inc, supra at 71-72. Further, MCL 750.145c(3) presents concerns that it “ ‘criminalize [s] a broad range of apparently innocent conduct.’ ” X-Citement Video, Inc, supra at 71, quoting Liparota, supra at 426. Here, several of the prosecution’s witnesses, including Williams, Radcliff, Hill, Kolomyjec, and perhaps, Hanoka, “distributed” child sexually abusive material by handing over the computer to another person. Indeed, the conduct of the prosecution’s witnesses may more fairly be characterized as distribu tion of offensive material than defendant’s conduct; the prosecution’s witnesses distributed the computer with instructions on how to make child sexually abusive material accessible, while the material that defendant distributed was not accessible to the average person. Thus, the absence of a mens rea requirement permits the statute to be construed in a manner that “ ‘criminalize [s] a broad range of apparently innocent conduct.’ ” X-Citement Video, Inc, supra at 71, quoting Liparota, supra at 426.
Consistent with X-Citement Video, Inc, we conclude that MCL 750.145c(3) requires an intent to disseminate child sexually abusive material to others. We first note that a mens rea requirement is easily implied in this statute because it contains terms and phrases indicative of purposeful conduct. Also, this requirement of intent serves to separate those who understand the wrongful nature of their act from those who do not, United States v Feola, 420 US 671, 685; 95 S Ct 1255; 43 L Ed 2d 541 (1975), which resolves the ambiguity in the statute so as to avoid substantial constitutional questions.
Therefore, we resolve the ambiguity of the word “distributes” by giving effect to the Legislature’s intention to prevent the dissemination of child sexually related material by requiring an intent to disseminate child sexually abusive material to others. Our construction of the word “distributes,” on one hand, addresses the dissemination of child sexually abusive material regardless of the size of such dissemination, while, on the other hand, resolves the uncertainty of guilt through the incorporation of a mens rea requirement in cases where an actor’s conduct is inconsistent with an intent to disseminate.
Applying our construction of MCL 750.145c(3) to this case, we conclude that the prosecution failed to present evidence that defendant intended for anyone to see or receive child sexually abusive material when returning the computer to his employer. Therefore, insufficient evidence was presented that defendant distributed child sexually abusive material in violation of MCL 750.145c(3). We reverse defendant’s conviction and sentence for distributing or promoting child sexually abusive material in violation of MCL 750.145c(3).
B. VAGUENESS
Defendant next argues that his conviction of using the Internet or a computer to communicate with any person to possess child sexually abusive material is invalid because the phrase “communicate with” found in MCL 750.145d(l) is unconstitutionally vague. “This Court reviews de novo a challenge to the constitutionality of a statute under the void-for-vagueness doctrine.” People v Beam, 244 Mich App 103, 105; 624 NW2d 764 (2000).
A statute may be challenged for vagueness on three grounds: (1) It does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; (3) its coverage is overbroad and impinges on First Amendment freedoms. People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976), citing Grayned v Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972). “[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” Howell, supra at 21, citing United States v Nat’l Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963).
Due regard for principles of standing, and recognition that declaring a statute unconstitutional is “ ‘the gravest and most delicate duty that this Court is called on to perform,’ ” mandate that, outside the context of the First Amendment, “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” [People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981), quoting United, States v Raines, 362 US 17, 20; 80 S Ct 519; 4 L Ed 2d 524 (1960), quoting Blodgett v Holden, 275 US 142, 148; 48 S Ct 105; 72 L Ed 206 (1927), and quoting Raines, supra at 21.]
Because defendant does not claim that the conduct of which he is accused is constitutionally protected by the First Amendment, we examine defendant’s vagueness challenges in light of the facts of this case.
MCL 750.145d provides, in relevant part:
A person shall not use the internet or a computer, computer program, computer network, or computer system to communicate with any person for the purpose of doing any of the following:
(a) Committing, attempting to commit, conspiring to commit, or soliciting another person to commit conduct proscribed under . . . [MCL 750.145c] .... [MCL 750.145d(l).[ ]
MCL 750.145c(4) provided at the time relevant to this action:
A person who knowingly possesses any child sexually abusive material is guilty of a misdemeanor . . . ,[ ]
When this statute is examined in light of defendant’s admitted possession of child sexually abusive material, which he acquired by downloading it onto the computer, we conclude that this statute is not unconstitutionally vague. The common meaning of the phrase, “communicate with,” adequately encompasses defendant’s actions in receiving child sexually abusive material through the use of a computer. Defendant’s receipt of child sexually abusive material through the computer indicates that he communicated his desire to receive such material through the computer. Moreover, the phrase, “communicates with,” does not confer unlimited discretion to the trier of fact to determine whether the statute has been violated. The phrase, “communicate with” is fairly ascertainable by persons of ordinary intelligence and may be readily applied in the context of using a computer. Moreover, the statute’s mens rea requirement limits the trier of fact’s discretion in determining whether the statute has been violated. See New York v Ferber, 458 US 747, 765, 766; 102 S Ct 3348; 73 L Ed 2d 1113 (1982); People v Perez-DeLeon, 224 Mich App 43, 49-51; 568 NW2d 324 (1997). Therefore, MCL 750.145d is not unconstitutionally vague as applied to defendant.
C. OTHER ISSUES
Defendant next argues that his convictions of distributing child sexually abusive material and possessing child sexually abusive material violated his double jeopardy rights. In light of our prior conclusion in regard to defendant’s conviction of distributing child sexually abusive material, this issue need not be addressed. People v Bearss, 463 Mich 623, 631; 632-633; 625 NW2d 10 (2001). Defendant last argues that the trial court improperly assessed defendant ten points under Offense Variable 9, in establishing his sentencing guideline range. However, defendant has already served his minimum sentence. Therefore, because this Court is unable to provide a remedy for the alleged error, the issue is moot and need not be addressed. People v Rutherford, 208 Mich App 198, 204; 526 NW2d 620 (1994).
m. CONCLUSION
We construe MCL 750.145c(3) to require evidence of an intent to disseminate child sexually abusive material to others. The prosecution failed to present sufficient evidence that defendant intended to disseminate child sexually abusive material to others. We reverse defendant’s conviction and sentence for a violation of MCL 750.145c(3). We affirm defendant’s remaining convictions and sentences.
This Court previously remanded this case for resentencing. People v Tombs, unpublished order of the Court of Appeals, entered July 16, 2002 (Docket No. 236858).
MCL 750.145c(3) was amended after the conclusion of the lower court proceedings in this case. 2002 PA 629. The relevant language of the statute is unchanged.
The jury specifically asked the trial court whether intent is a factor in applying the word “distributes.”
In X-Citement Video, Inc, the Court addressed a similar statute that at that time stated:
“(a) Any person who-—
“(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if — ■
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct;
“(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct;
“shall be punished . . . .” [X-Citement Video, Inc, supra at 68, quoting 18 USC 2252 (1988 ed and Supp V).]
Similarly, MCL 750.145c(3) is not a public welfare offense. “Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view.” X-Citement Video, Inc, supra at 71.
MCL 750.145c(3) has been amended three times over several years. However, the 1988 amendment may explain why the act of distribution contains no express mens rea requirement. MCL 750.145c(3), as added by 1977 PA 301, effective March 30, 1978, stated:
A person who commercially distributed or promotes, or finances the distribution or promotion of, or receives for the purpose of commercially distributing or promoting, or conspires, attempts, or prepares to so distribute, receive, finance, or promote any child abusive commercial material or child abusive commercial activity is guilty of a felony ....
Child abusive commercial material or child abusive commercial activity was defined solely in relation to a “commercial puipose.” MCL 750.145c(3) (1978). “Commercial puipose” was defined in 1977 PA 301 to mean “any purpose for which monetary gain or other remuneration could reasonably be expected or anticipated, or has already been received or arranged for.” MCL 750.145c(l)(b).
In 1988, the Legislature substantially amended the statute and eliminated all references to “commercial purpose.” 1988 PA 110. This amendment of MCL 750.145c(3) thus reflects an intent to eliminate the requirement of a “monetary gain or other remuneration ... .” However, the elimination of the “commercial purpose” requirement does not mean that the Legislature also intended to eliminate all mens rea in regard to the act of distribution.
We recognize that, “outside the context of the First Amendment, ‘one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.’ ” People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981), quoting United States v Raines, 362 US 17, 21; 80 S Ct 519; 4 L Ed 2d 524 (1960). Here, however, we are merely relying on evidence contained in the lower court to resolve a statutory ambiguity.
We are cognizant of our Supreme Court’s numerous admonitions to avoid reading into a statute matters not clearly supported by the language of the statute. We do so here because (1) we conclude the statute is ambiguous, and (2) where we can fairly do so, we are bound to interpret the statute so as to avoid substantial constitutional questions. Reading the word “distributes” to require a mens rea eliminates all constitutional doubts. See X-Citement Video supra, Inc, supra at 78.
Defendant also argues that his conviction of distributing or promoting child sexually abusive material is invalid because the words “distributes” and “promotes” found in MCL 750.145c(3) render the statute unconstitutionally vague. However, in light of our interpretation of MCL 750.145c(3), earlier in this opinion, this issue need not be addressed. We nonetheless note that a similar statute was interpreted and found constitutional by the United States Supreme Court. New York v Ferber, 458 US 747; 102 S Ct 3348; 73 L Ed 2d 1113 (1982).
MCL 750.145d was amended after the conclusion of the lower court proceedings in this case. 2000 PA 185. The amendments are not relevant to this case.
MCL 750.145c(4) was amended after the conclusion of the lower court proceedings in this case. 2002 PA 629. The amendments are not relevant to this case. We do note that a violation of former MCL 750.145c(4) was punishable as a misdemeanor, but that a violation of the current MCL 750.145e(4) is punishable as a felony. | [
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Per Curiam.
The prosecution appeals as of right from the trial court’s order granting defendant’s motion to quash a charge of fleeing and eluding a police officer. MCL 750.479a.. We reverse and remand for proceedings consistent with this opinion.
On June 21, 2002, at approximately 9:30 P.M., Port Huron Police Officer Chris Frazier was at an apartment building at 1207 Glenwood Street where a search warrant for drugs was executed. That evening, Officer Frazier was in full uniform and was driving a fully marked police vehicle. Once the interior of the apartment to be searched was secured, Officer Frazier was instructed to secure the rear exit doors of the apartment building. At the rear of the apartment building was a driveway that led into an alleyway. Officer Frazier observed defendant drive a white Hyundai vehicle into the driveway from the alleyway. Defendant was driving toward the back of the building where the search warrant was being executed. Officer Frazier walked toward defendant’s vehicle and told defendant to stop. The officer was a mere ten to twenty feet from defendant’s vehicle at that time. Defendant tried to place his vehicle in reverse gear in an attempt to leave the scene, but the car kept stalling. Upon realizing that defendant was trying to leave, Officer Frazier “ran right up along his car, as he was backing away, and told him repeatedly, ‘Stop, Police.’ ” Officer Frazier observed defendant through the passenger side window. The officer’s vehicle was in “very close proximity to [defendant] leaving the alleyway.” Defendant placed his vehicle in reverse gear and drove right in front of Officer Frazier’s patrol car. Defendant sped out of the alleyway and made a left turn, proceeding north on Elk Street. Officer Frazier pursued defendant on foot, then entered his patrol car after defendant drove past it. Defendant was stopped approximately six or seven blocks from the apartment building. Officer Frazier testified that it was standard procedure, for safety reasons, to stop anyone who comes to a home while a search warrant is being executed at the home.
On cross-examination, Officer Frazier testified that it was dusk at the time of the incident involving defendant. He testified that a vehicle that entered from the alleyway from the west side would not have seen his patrol car. Although Officer Frazier “probably” had a flashlight with him, there was sufficient lighting so that he did not need to use it. Officer Frazier was familiar with defendant because of prior contacts with defendant. Officer Frazier estimated that there had been four prior contacts within the last three to six months. On one occasion, defendant’s vehicle was stopped by the police because it was allegedly involved in another crime. When the vehicle was stopped, crack cocaine and powdered cocaine were found on the passengers in defendant’s vehicle. Defendant was arrested during that incident, but not during the other prior contacts.
Officer Frazier acknowledged that the standard police uniform for the Port Huron Police Department consists of a dark pair of pants and a light-blue shirt. That day, Officer Frazier was wearing the duty uniform of a K-9 handler. This uniform is entirely navy blue and the shirt has the word “police” printed on it. He indicated the location of two patches that are sewn on the uniform shirt and noted that a metal badge is worn on the left front half of the shirt. Officer Frazier was wearing a baseball-style cap when this incident occurred. Officer Frazier testified that he initially told defendant to stop in a “normal tone,” but began yelling and ordering him to stop when defendant started to leave the area. He also drew his weapon when he realized that defendant was rapidly leaving the parking area. Defendant was bound over on the charge of fleeing and eluding a police officer.
Defendant moved to quash the information. Defendant alleged that the police officer was not in a plainly marked vehicle at the time of the attempted stop, had no legal basis for the stop, and was not in a clearly marked police uniform as required by the statute. The prosecutor alleged that, under the totality of the circumstances, there was sufficient evidence of the elements of the charge to present the case to the jury as the trier of fact. The trial court granted the motion to quash on the basis of the fact that Officer Frazier was not in or near his police vehicle at the time defendant left the area.
A district court’s decision to bind a defendant over for trial will not be disturbed absent an abuse of discretion. People v Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652 (1997). On review, the circuit court is limited to the entire record of the preliminary examination and may not substitute its judgment for that of the district court. People v Orzame, 224 Mich App 551, 557; 570 NW2d 118 (1997). The circuit court may reverse the district court decision only if there appears to be an abuse of discretion. Id. This Court, in turn, reviews the circuit court’s decision de novo to determine if the district court abused its discretion. Id. An abuse of discretion occurs when an unbiased person reviewing the same facts before the trial court would conclude that there was no justification for the court’s ruling. People v Hendrickson, 459 Mich 229, 235; 586 NW2d 906 (1998). However, whether alleged conduct falls within the statutory scope of MCL 750.479a involves a question of law that is reviewed de novo. People v Grayer, 235 Mich App 737, 739; 599 NW2d 527 (1999).
This issue involves examination of the statute prohibiting fleeing and eluding a police officer, MCL 750.479a. Statutory interpretation presents a question of law that we review de novo. People v Nimeth, 236 Mich App 616, 620; 601 NW2d 393 (1999). The function of a reviewing court resolving disputed interpretations of statutory language is to effectuate the legislative intent. People v Valentin, 457 Mich 1, 5; 577 NW2d 73 (1998). When the language of the statute is clear, the Legislature intended the meaning plainly expressed, and the statute must be enforced as written. Id. We presume that every word has some meaning, and we must avoid any construction that would render any part of the statute surplusage or nugatory. People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999). To discover legislative intent, provisions of a statute must be read in the context of the entire statute to produce, if possible, a harmonious and consistent whole. Michigan ex rel Wayne Co Prosecutor v Bennis, 447 Mich 719, 732; 527 NW2d 483 (1994), aff’d 516 US 442 (1996). The fair and natural import of the terms of the statute, in view of the subject matter of the law, is what should govern. People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). Where terms are not expressly defined within a statute, the courts may turn to dictionary definitions to aid the goal of construing terms in accordance with their plain and generally accepted meanings. Id. The legislative history of an act may be examined to ascertain the reason for the act and the meaning of its provisions. In re Seymour Estate, 258 Mich App 249, 254; 671 NW2d 109 (2003). Legislative history is valuable when it shows an intent to repudiate a judicial construction or considers alternatives in statutory language. In re Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). However, legislative history is afforded little significance when it is not an official view of the legislators, and legislative history may not be utilized to create an ambiguity where one does not otherwise exist. Id.
The text of MCL 750.479a, before its amendment in 1988, provided, in relevant part, as follows:
A driver of a motor vehicle, who is given by hand, voice, emergency light or siren a visual or audible signal by a police officer, acting in the lawful performance of his duty, directing the driver to bring his motor vehicle to a stop, and who wilfully fails to obey such direction, by increasing his speed, extinguishing his lights, or otherwise attempting to flee or elude the officer, is guilty of a misdemeanor, punishable by a fine not to exceed $1,000.00 or by imprisonment for not more than 1 year, or both. The officer giving the signal shall be in uniform; and a vehicle driven at night shall be adequately identified as an official police vehicle.
In 1988, MCL 750.479a was amended by 1988 PA 407, § 1, effective March 30, 1989, to provide as follows:
(1) A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop, and who willfully fails to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police or conservation officer, is guilty of a misdemeanor, and shall be punished by imprisonment for not less than 30 days nor more than 1 year, and, in addition, may be fined not more than $1,000.00 and may be ordered to pay the costs of prosecution. The court may depart from the minimum term of imprisonment authorized under this subsection if the court finds on the record that there are substantial and compelling reasons to do so and if the court imposes community service as a part of the sentence.
(2) Subsection (1) does not apply unless the police or conservation officer giving the signal is in uniform, and the vehicle driven by the police or conservation officer is identified as an official police or department of natural resources vehicle. [Emphasis added.]
MCL 750.479a was further amended in 1996 by 1996 PA 586, § 1, effective June 1, 1997. It was again amended in 1998 by 1998 PA 344, effective October 1, 1999, to provide, in relevant part:
(1) A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop shall not willfully fail to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police or conservation officer. This subsection does not apply unless the police or conservation officer giving the signal is in uniform and the officer’s vehicle is identified as an official police or department of natural resources vehicle.
(2) Except as provided in subsection (3), (4), or (5), an individual who violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony punishable by imprisonment for not more than 2 years or a fine of not more than $500.00, or both.
Review of the plain language of MCL 750.479a(l) reveals that a driver of a motor vehicle, when given a visual or audible signal by a police officer, must bring the motor vehicle to a stop. Valentin, supra. This visual or audible signal may be given by hand, voice, emergency light, or siren. MCL 750.479a(l). The plain language of the statute does not require that this signal to the driver of a motor vehicle be given from within the officer’s officially identified police vehicle. Id.-, Valentin, supra.
Furthermore, examination of the history of the statutory amendments made by the Legislature reveals that there is no intent to require that a police officer be present in the officially identified vehicle to fulfill the current elements of fleeing and eluding. In re Certified Question, supra. MCL 750.479a, following the 1988 amendments, expressly stated that the statute did not apply unless the officer gave the signal while in uniform and “the vehicle driven” by the officer was identified as an official police vehicle. “Drive” is defined as “to send, expel, or otherwise cause to move by force or compulsion,” “to cause and guide the movement of a vehicle or animal, esp. to operate a vehicle,” or “to go or travel in a driven vehicle.” Random House Webster’s College Dictionary (2d ed, 2000), p 403. However, the 1998 amendment of MCL 750.479a(l) removed the language requiring that the “vehicle driven” must be identified. Rather, the current form of the fleeing and eluding statute merely requires that the officer giving the signal be in uniform and that the officer’s vehicle must be identified as an official police vehicle. MCL 750.479a(l). The fair and natural import of the statute in light of the subject matter, Morey, supra, recognizes that a voice or hand signal from an officer may occur in the course of duty on the street, not necessarily while the officer is (jbriving in the official police vehicle. Furthermore, while a police vehicle must be visibly identified as a police vehicle, the Legislature has not in the current version of the statute placed any restriction on the time frame regarding the observation or the location of the officially marked police vehicle in relationship to the officer’s signal to stop. It follows that, if the signal occurs by emergency light or siren, that signal must come from an officially identified police vehicle in order to hold a driver accountable for the offense of fleeing and eluding. Reading the statute in context to produce a harmonious and consistent whole, the type of signal given and the context in which it occurs determines the propriety of bringing a charge of fleeing and eluding. Bennis, supra.
Thus, in the present case, defendant was given a voice signal to stop by an officer in uniform. When defendant prepared to drive away, the officer ran up to defendant’s vehicle, reiterated the command to stop, and verbally notified defendant that he was a police officer. Moreover, defendant’s flight from the scene caused defendant to pass the officer’s officially marked vehicle. Under the circumstances, the alleged conduct falls within the scope of MCL 750.479a(l), and the trial court erred in granting defendant’s motion to quash. Grayer, supra. Defendant’s challenge to the elements of the offense and the requisite intent under the circumstances, see People v Abramski, 257 Mich App 71, 73; 665 NW2d 501 (2003), present questions for the trier of fact. Grayer, supra. Therefore, the trial court erred in granting defendant’s motion to quash based on the officer’s location in relationship to his officially marked police vehicle.
In opposition to reinstatement of the charges on appeal, defendant challenges the sufficiency of the officer’s uniform, noting that his uniform was com pletely navy blue, unlike the typical uniform of a Port Huron Police Officer. The plain language of the statute at issue merely provides that the officer must be in uniform. Valentin, supra. It does not contain any minimum requirements for an officer’s uniform. In the present case, Officer Frazier testified that his uniform contained the same markings as the standard police uniform, but his shirt was navy blue instead of light blue. Thus, defendant’s challenge to the sufficiency of the uniform with regard to his knowledge and intent presents a question for the trier of fact. Lastly, defendant’s challenge to the officer’s “lawful performance” of his duty in ordering the stop is without merit. Officers are not required to take unnecessary risks in the performance of their duties, and a balance must be struck between the public interest and interference by law officers. People v Otto, 91 Mich App 444, 449-451; 284 NW2d 273 (1979). Under the circumstances of the execution of a search warrant for drugs and for the safety of the officers during the execution, the stop during the course of the officer’s duty in accordance with police procedure for execution of search warrants was permissible. See Michigan v Summers, 452 US 692, 699-700; 101 S Ct 2587; 69 L Ed 2d 340 (1981).
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Defense counsel was precluded from asking additional questions when the trial court cut off the questioning, noting that there was no reason to inquire about other incidents.
The statute was also amended in 2002, however, that amendment did not address the statutory subsection at issue in this case.
Published case law addressing the fleeing and eluding statute has not addressed the statute in its current form. In Grayer, supra, this Court held that the statute did not require that the defendant attain a certain level of speed or travel a certain distance. The fact that the defendant ignored the officer’s activation of his emergency lights and sirens coupled with the defendant’s acceleration of his vehicle in excess of the speed limit was found to be sufficient evidence of intent to elude to present to the trier of fact. Grayer, supra at 743-744. We reversed the trial court’s order quashing the fleeing and eluding charge and remanded for a trial. Following his conviction on remand, the defendant challenged the sufficiency of the evidence to support the conviction, claiming that he did not hear a siren and that the officer activated his lights shortly before defendant arrived at his home. People v Grayer, 252 Mich App 349, 350-352; 651 NW2d 818 (2002). This Court rejected the challenge to the sufficiency of the evidence, concluding that a rational trier of fact could find the essential elements were proved beyond a reasonable doubt that the defendant attempted to flee and avoid capture where he sped for a short time, made a sharp turn close to his home, left the vehicle and ran from the police, then stopped and tried to convince the police that they were searching for a different individual. Id. at 355-356. These cases demonstrate that a conviction for the crime of fleeing and eluding a police officer will be contingent on the facts and circumstances in each case, and there must be sufficient indicia through the police uniform and vehicle that the person making the stop is, in fact, a police officer. See People v McKinley, 255 Mich App 20, 30; 661 NW2d 599 (2003).
The trial court did not decide the claims raised by defendant as alternative grounds to quash the information. For reasons of judicial economy, we nonetheless address them. MCR 7.216(A)(7).
See also People v Davis, unpublished opinion per curiam of the Court of Appeals, issued May 22, 2003 (Docket No. 237601). In that case, the defendant challenged the sufficiency of the evidence in support of his fleeing and eluding conviction on the basis of the police officers’ uniforms. This Court held that, although the officers were not wearing uniforms as required by the statute, their blue, nylon jackets with the word “police” on the front and back in white letters was sufficient evidence for the jury to conclude that the uniform requirement was satisfied. More importantly, this Court held that whether the officers were wearing uniforms did not present a legal question, but rather a factual issue for resolution by the jury. Although unpublished opinions are not binding precedent, MCR 7.215(C)(1), we utilize it as a guide and view it as persuasive in light of the limited case law in this area. Thus, defendant, in the present case, may challenge the sufficiency of the officer’s uniform before the jury. | [
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] |
Hoekstra, J.
In this action alleging bad-faith failure to settle a wrongful-death suit, defendant Citizens Insurance Company of America appeals by leave granted the trial court’s order denying its motion for summary disposition. In the trial court, and now on appeal, Citizens maintains that the claim against it must be dismissed because an agreement between plaintiffs J & J Farmer Leasing, Inc. (J & J Farmer), Farmer Brothers Trucking Company, Inc. (Farmer Brothers), Calvin Orange Rickard, Jr. (Rickard) (the Farmer parties, collectively), and James W. Riley, personal representative of the estate of Sharyn Ann Riley, deceased (the estate), who were the opposing parties in the underlying wrongful-death case, essentially released the underlying defendants, the Farmer parties, from any obligation to pay the unsatisfied portion of the judgment in that case. Citizens argues that application of the excess-judgment rule set forth in Justice Levin’s dissent in Frankenmuth Mut Ins Co v Keeley, 433 Mich 525; 447 NW2d 691 (1989) (Keeley I), and adopted by our Supreme Court in Franken-muth Mut Ins Co v Keeley (On Rehearing), 436 Mich 372; 461 NW2d 666 (1990) (Keeley II), to the circumstances presented here bars an award of damages against it and requires dismissal of this case. We conclude that application of the Keeley decision does not prevent an award of damages, and we affirm.
I FACTS AND PROCEDURAL HISTORY
Plaintiffs filed this action after the estate received a jury award in excess of $3 million against the Farmer parties for the wrongful death of Sharyn Arm Riley. The decedent died when a semitrailer and tractor owned by J & J or Farmer Brothers and driven by their employee, Rickard, swerved into the lane in which the decedent was driving, colliding head-on with the decedent’s vehicle. Citizens was the insurer of the defendants in the underlying case and provided a defense. Subsequently, Citizens paid its policy limit of $750,000, plus related costs, fees, and interest, leav ing the Farmer parties liable for the balance of the judgment.
Thereafter, plaintiffs herein, i.e., both the plaintiff and the defendants in the underlying suit, joined together and entered an agreement pursuant to which plaintiffs would initiate a joint lawsuit against Citizens on the basis of bad-faith failure to settle the wrongful-death action, among other things, and later pay the remainder of the judgment from the underlying lawsuit out of any proceeds of this suit. Plaintiffs then filed the instant case. After discovery, Citizens moved for summary disposition, asserting alternate grounds with respect to the bad-faith claim. The circuit court granted summary disposition in favor of Citizens, concluding that Citizens could not be liable for bad faith because before trial Citizens had offered to settle for the policy limit. Plaintiffs appealed the grant of summary disposition, and this Court reversed, holding that under the facts presented, “a reasonable fact-finder could conclude that defendant rejected a reasonable settlement offer within the policy limit, unduly delayed in accepting a reasonable offer to settle within the policy limit when the verdict potential was high, and repeatedly disregarded the advice of counsel.” J & J Farmer Leasing, Inc v Citizens Ins Co, unpublished opinion per curiam of the Court of Appeals, issued October 22, 1999 (Docket No. 209236). This Court remanded the case for further proceedings.
After the remand, Citizens again filed a motion for summary disposition in the trial court, reasserting the alternate ground. Citizens argued that the action must be dismissed because the decedent’s estate entered into an agreement with the Farmer parties to “forever forebear” any action to collect the excess judgment from Citizens’ insured. It is undisputed that the estate collected from Citizens the policy limit of $750,000, plus costs, interest, and attorney fees, leaving an unsatisfied judgment and accrued interest of over $2.5 million. However, Citizens contends that it was entitled to summary disposition essentially because the agreement between the instant plaintiffs functions as a release by the estate of the judgment against the underlying defendants. According to Citizens, because the agreement provides that the estate forever forbears any action to collect from the Farmer parties the unpaid portion of the judgment, the estate cannot recover from Citizens because the insured will not actually suffer a loss for which Citizens can be held liable. In ruling on Citizens’ motion for summary disposition, the trial court stated that “a covenant not to execute on a judgment in exchange for assignment of a bad faith claim does not necessarily operate to extinguish the underlying judgment.” Noting that it is undisputed that J & J Farmer is a collectable entity, the trial court denied Citizens’ motion for summary disposition for the reasons stated in plaintiffs’ briefs. Citizens sought leave to appeal the trial court’s order denying its motion, and this Court granted leave.
Ü. STANDARD OF REVIEW AND APPLICABLE LAW
We review de novo a trial court’s grant or denial of summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Citizens’ motion requested summary disposition pursuant to MCR 2.116(C)(10), which tests the factual support of a claim. Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001). “In evaluating a motion for summary disposition brought under [MCR 2.116(C)(10)], a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion” to determine whether a genuine issue regarding any material fact exists. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
Also, resolution of the instant appeal requires contractual interpretation. It is well-established that contracts are to be construed in their entirety. Perry v Sied, 461 Mich 680, 689; 611 NW2d 516 (2000). “The primary goal in the construction or interpretation of any contract is to honor the intent of the parties.” Rasheed v Chrysler Corp, 445 Mich 109, 127 n 28; 517 NW2d 19 (1994); see also Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). Moreover, “[i]f the contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous.” Meagher v Wayne State Univ, 222 Mich App 700, 722; 565 NW2d 401 (1997). When the language of a contract is unambiguous, courts construe and enforce the contract as written. Quality Products, supra.
III. ANALYSIS
A. INTRODUCTION
On appeal, Citizens maintains that even if plaintiffs in this case can prove their claim of bad-faith failure to settle, no monetary damages can be awarded on that claim. To sustain this position, Citizens relies on the excess-judgment holding of Keeley. Citizens argues that Keeley limits judgments to the amount that an insurer is able and obligated to pay. Pointing to the language of the agreement between the Farmer parties and the estate, Citizens contends that the Farmer parties have been released from paying the underlying judgment. Having been released, Citizens maintains that the holding of Keeley operates to preclude an award of damages because the Farmer parties are no longer obligated under the judgment. Before undertaking an analysis of Citizens’ argument, we first set forth in some detail the pertinent provisions of the agreement between the estate and the Farmer parties and the reasoning of Keeley.
B. PLAINTIFFS’ AGREEMENT
As previously stated, the plaintiff and the defendants in the underlying case, i.e., plaintiffs herein, entered into an agreement concerning the alleged bad-faith failure to settle by Citizens. The agreement indicates that Citizens had undertaken to defend the underlying wrongful-death suit, and the estate would have settled for Citizens’ insurance policy limit at the onset of litigation, but Citizens “negligently and in bad faith” took the underlying suit to trial anyway. The trial resulted in a judgment against the underlying defendants in the amount of $3,214,916.97, plus costs, interest, and attorney fees, which is greatly in excess of Citizen’s $750,000 policy limit. After Citizens paid the policy limit plus costs, interest, and attorney fees, the unsatisfied balance and accrued interest exceeds $2.5 million.
The agreement covers, among other things, the intent and responsibilities of the parties. Paragraph 9 recites the separate desires of the individual parties to the agreement, including, in part, the Farmer parties’ desire to pursue a bad-faith claim against Citizens and seek “a means to satisfy the outstanding balance of the [j judgment which is currently outstanding against them . . . .” The estate desired payment of that same outstanding balance. Paragraph 10 lists the parties’ actual agreements “[t]o satisfy the separate desires of these litigants . . . .” Central to Citizens’ argument is paragraph 10(b), which provides:
That the Plaintiff [the estate] agrees to forever forebear any action to collect any monies to satisfy the unpaid portion of the Judgment that the Plaintiff has against the Defendants [the Farmer parties], in exchange for which the Defendants do hereby grant to the Plaintiff a lien on any proceeds of any bad faith claim, negligence claim, contract claim or intentional tort claim as set forth herein. [Emphasis supplied.]
In pertinent part, paragraph 10 provides that the parties will jointly sue Citizens for failing to settle the underlying lawsuit and sets up the details of that suit. Paragraph 10(e) requires the Farmer parties to fully cooperate with the estate in pursuing the joint lawsuit against Citizens. Also relevant is paragraph 10(f), which provides:
In the event that any of the Defendants [the Fanner parties] shall fail to: (1) execute pleadings necessary to prosecute the lawsuit; (2) attend meetings with counsel; (3) comply with discovery; or (4) attend evidentiary hearings or trial as needed in the discretion of counsel, the Plaintiff [the estate] shall notify the offending party in writing of its breach of this agreement, specifying the act or omission which constitutes the alleged breach and the means by which the offending party shall cure the breach. Thereafter, the offending party shall have fifteen (15) days in which to perform the specified corrective action (eg. supply documents, answer interrogatories, or attend a deposition or meeting). If the offending party fails to timely cure its breach or its breach is not capable of being cured (i.e. the lawsuit is dismissed as a result of the offending party’s conduct), then the Plaintiff may declare this Agreement null and void as to the offending party, only, but not as to any other Defendant. In that event, and that event only, is the Plaintiff permitted to take action to collect the unpaid portion of the Judgment from the offending party.
The agreement also contains an integration clause: “This is the entire agreement between these parties and no other agreement either written or oral exists between these parties for the purpose of resolving these issues of mutual concern.”
C. LEGAL CONTEXT AND THE KEELEY DECISIONS
It is undisputed, that
an insurer is liable to its insured for a judgment exceeding policy limits when the insurer, who has exclusive control of defending and settling the suit, refuses to settle within policy limits in “bad faith.” [Commercial Union Ins Co v Medical Protective Co, 426 Mich 109, 116; 393 NW2d 479 (1986), citing City of Wakefield v Globe Indemnity Co, 246 Mich 645, 648; 225 NW 643 (1929).]
If it is determined that the insurer acted in bad faith, the question turns to the measure of the insured’s damages. As Citizens points out, our Supreme Court has discussed this issue in Keeley II, 436 Mich 372, in which our Supreme Court adopted Justice Levin’s dissent in Keeley I, 433 Mich 525.
In its original decision, Keeley I, the Supreme Court discussed the appropriate measure of damages an insured may be awarded against an insurer in a claim for bad-faith breach of the duty to settle when, in the underlying claim, the plaintiff receives a verdict in excess of the insurance policy limits. Justice Archer explained:
There are two schools of thought regarding the remedy for an insurer’s bad-faith breach of its duty to settle. The jurisdictional split is distinguished by the following doctrines: the prepayment rule and the judgment rule. The older prepayment rule is the doctrine, adopted by a minority of jurisdictions, which dictates that an insurer may be held liable in an “excess” case only if part or all of the judgment has been paid by the insured. The judgment rule, adopted by a majority of jurisdictions, commands an insurer to pay an excess judgment in instances of bad faith, so that the insured need not make any payment nor have the capacity to pay any part of the judgment in order to recover the excess amount from the insurer. [Keeley I, supra, 433 Mich 535 (Archer, J.).]
Justice Levin in his dissenting opinion in Keeley I agreed with the majority in Keeley I that the judgment rule is the approach preferred over the prepayment rule, noting that “[a]n insured should not be required to sell assets or borrow money to pay a judgment in order to maintain an action against the insurer for bad faith in failing to settle a claim within policy limits.” Id. at 553-554. He explained, however, that adoption of the judgment rule approach does not “justify eliminating the sense of the prepayment rule that the insurer should not be required to pay more than the insured is able to pay on the judgment.” Id. at 554 (emphasis supplied). Justice Levin agreed with decisions in other jurisdictions where the courts held that the insured must make some showing that it has suffered damages before it may proceed against an insurer that acted in bad faith. Id., citing Gordon v Nationwide Mut Ins Co, 30 NY2d 427, 441; 285 NE2d 849 (1972). Justice Levin referred to the following from Keeton & Widiss, Insurance Law, § 7.8(i)(1), pp 899-900:
“When it seems almost certain the insured will never pay anything at all on the excess judgment if the claim against the insurer is denied, arguments that the insured has been damaged by the increase in debts are rather weak support for any cause of action at all, much less for a measure of damages equal to the amount of the increase in the insured’s debts. However, other courts have concluded that the entry of judgment against a person constitutes a loss and that the insured’s Toss does not turn on whether the judgment has been satisfied.’ Since, absent a discharge of the obligation through a bankruptcy proceeding, the third party’s judgment can remain as an outstanding obligation for extended periods of time, in many circumstances there is considerable uncertainty in regard to predicting whether the insured may ultimately have resources or assets that may be taken to satisfy some portion of the judgment.
“Third party claimants are not in a position to assert that they were harmed as a result of the insurer’s conduct in regard to having not settled the tort claim. The insurer’s duty was to the insured, not to the claimant. Furthermore, in one sense, a third party benefits from the insurer’s refusal to settle because the insurer’s refusal to settle resulted in the claimant’s obtaining a judgment in excess of the amount the claimant had offered to accept in settlement. Thus, although the third party claimant deserves further compensation, the theoretical justification for imposing liability on the insurer, which is harm to the insured, does not warrant a recovery by such a claimant any more than the innocent victims of an underinsured tortfeasor would be entitled to indemnification beyond the amount of the applicable coverage from a liability insurer who had not refused a settlement.” [Keeley I, supra, 433 Mich 555-556.]
Justice Levin’s dissent proposed a compromise between the prepayment rule and the judgment rule:
[T]hat this Court accept the essence of the judgment rule by eliminating the need to show partial payment, but provide protection for insurers along the lines of the prepayment rule by precluding collection on the judgment from the insurer beyond what is or would actually be collectable from the insured. [Keeley I, supra, 433 Mich 565.]
In Keeley II, our Supreme Court, by adopting Justice Levin’s dissent in Keeley I, accepted the proposed compromise.
D. APPLICATION
Resolution of whether the trial court erred in denying Citizens’ motion for summary disposition requires a two-part analysis. The first aspect is whether the agreement between the estate and the Farmer parties operated to release the Farmer parties from paying the unsatisfied portion of the underlying judgment. If released, the question becomes whether plaintiffs can establish damages in the action alleging bad-faith failure to settle.
Turning first to the question whether there was a release, we agree with Citizens that the language of the agreement indisputably releases the Farmer parties from any obligation to pay the underlying judgment as long as they perform the duties and obligations contained in the agreement.* ***** Paragraph 10(b) of the agreement provides that the estate agrees to forever forbear “any action to collect any monies to satisfy the unpaid portion of the Judgment that the [estate] has against the [Farmer parties].” In light of the express language of the agreement and construing the agreement in its entirety in an effort to honor the intent of the parties, Perry, supra; Rasheed, supra, it is apparent that the estate intended for the Farmer parties to be relieved of responsibility for paying the excess judgment in return for their cooperation in seeking recovery from Citizens for its alleged bad-faith failure to settle the underlying action.
Plaintiffs respond by arguing that the agreement contains a covenant not to sue, rather than a release. However, plaintiffs fail to explain why, in the context of this case, that distinction would make a difference. Regardless of whether the agreement contains a release or a covenant not to sue, the net effect is the same, i.e., the Farmer parties are no longer obligated to pay the underlying judgment.* ****** Relief from the obligation to pay is the key component to triggering the holding of Keeley and ultimately determining whether plaintiffs in this case can prove damages. We also find unavailing plaintiffs argument that the agreement cannot be enforced for lack of consideration. The agreement contains several mutual agreements that support a finding that consideration was given. Whether the consideration was adequate is not for us to decide. Gen Motors Corp v Dep’t of Treasury, 466 Mich 231, 239; 644 NW2d 734 (2002).
Having concluded that plaintiffs’ agreement in this case operates to release the Farmer parties from paying the unsatisfied portion of the underlying wrongful-death judgment, we now must determine whether the release precludes an award of damages in the case alleging bad-faith failure to settle. We begin by acknowledging the straightforward and compelling logic of Citizens’ argument. Citizens interprets Keeley to have established certain principles regarding damages in cases alleging bad-faith failure to settle. Those principles as stated by Citizens include that the “damages are limited to sums that are legally collectable from the insured, [Keeley I, supra, 433 Mich] at 546-[5]47; and such damages are further limited to the economic loss actually suffered by the insured. Id. at 557-562.” When applied to the instant case, Citizens argues that its insured, the Farmer parties, cannot establish any pecuniary harm because the release contained in the agreement relieves them of any obligation to pay any amount over the policy limits. Consequently, Citizens concludes that no damages can be awarded in this case and that the trial court therefore erred in denying Citizens’ motion for summary disposition. Although the reasoning that Citizens offers is an arguably correct interpretation of how Keeley might be applied to the circumstances presented in this case, it is one that we decline to adopt.
The principal reason we decline to agree with Citizens’ interpretation of the holding of Keeley and its application to the facts of the present case is that it would turn what our Supreme Court intended to be a shield into a sword. In Keeley, our Supreme Court provided a shield to guard insurers found hable for bad-faith failure to settle from paying the judgment balance that the insured could not have paid fully. Here, Citizens attempts to turn the shield provided in Keeley into a sword to escape any payment on an excess judgment, despite the insured’s ability to pay some or all of it, merely because the insured assigned the bad-faith claim to the judgment holder and in exchange obtained relief from paying the underlying judgment. We believe that the application of the holding of Keeley in the manner advanced by Citizens is contrary to the purpose and intent of Justice Levin’s dissent.
In his dissent, Justice Levin proposed
a compromise between the prepayment and the judgment rule: that this Court accept the essence of the judgment rule by eliminating the need to show partial payment, but provide protection for insurers along the lines of the prepayment rule by precluding collection on the judgment from the insurer beyond what is or would actually be collectable from the insured. [Keeley I, supra, 433 Mich 565.]
In adopting a compromise between the judgment rule and the payment rule, our Supreme Court sought to impart fairness and to find a balance between the two general approaches concerning the remedy for an insurer’s bad-faith failure to settle. By precluding collection on the judgment beyond what is or would be collectable from the insured, the Court prevents the injured third-party from collecting from the insured’s insurer amounts that otherwise would not be collectable. Citizens seeks to limit collection to “what is or would actually be collectable from the insured,” Kee-ley 1, supra, 433 Mich 565, without regard to the Court’s analysis in arriving at this conclusion. Read in its entirety, the Keeley decision is concerned with how much is or would be collectable from the insured to limit the insurer’s liability in a fair manner. In light of the public policy extended by the Supreme Court, we are not persuaded by Citizens’ vision of eluding payment regardless of bad-faith failure to settle where the insured has taken measures to protect itself with regards to what it deems its insurer’s bad-faith failure to settle. We cannot conclude, as Citizens suggests, that the fact that the Farmer parties have entered into an agreement to prevent financial ruin resultantly caused the forfeiture of any recovery from Citizens for its alleged bad faith. Rather, we believe that Keeley requires an insurer found liable for bad-faith failure to settle to pay the excess judgment to the extent the insured would have been able to pay, regardless of the insured’s obtainment of a release. To hold otherwise would be to evade the intent of our Supreme Court and cause a windfall for the insurer on the basis of the insured’s savvy in saving itself from potential financial ruin, which saving action needed to be done only as a result of the insurer’s alleged bad faith in causing an excess judgment against its insured. An insured should not be penalized for devising or taking advantage of a method of avoiding financial loss allegedly flowing from the bad faith of its insurer, nor should an insurer benefit from its insured’s maneuverings to protect itself.
With respect to the rule adopted in Keeley, we believe that our Supreme Court did not, nor did it intend to, preclude recovery against an insurer for bad-faith failure to settle simply because the insured takes steps to protect itself from an excess judgment that it believes resulted from its insurer’s bad-faith failure to settle. Here, should the trial court determine that Citizens’ engaged in a bad-faith failure to settle the claim against the Farmer parties, then it should utilize the guidelines in the Keeley decision to determine the amount of damages payable by Citizens, i.e., the trial court shall preclude “collection on the judgment from [Citizens] beyond what is or would actually be collectable from [the Farmer parties].” Keeley I, supra, 433 Mich 565.
In sum, Citizens was not entitled to summary disposition.
Affirmed.
Because in Keeley II the Supreme Court adopted Justice Levin’s dissent in Keeley I without republishing the dissent, we refer to the Supreme Court’s decision in whole as Keeley.
The Farmer parties later assigned their claims to James Riley as personal representative of the estate of Sharyn Riley, deceased, pursuant to the terms and conditions of the agreement between the parties.
The circuit court also concluded, and this Court agreed, that Citizens had no contractual or statutory obligation to include prejudgment interest in its offer to settle for the policy limit before trial. Id.
Although Citizens asserted this alternate ground for summary disposition in its first motion for summary disposition, the trial court did not rely on this ground in granting that motion.
We recognize that the word “forebear” in the agreement is merely a misspelling of “forbear,” and the parties do not suggest otherwise.
In Keeley II, the Supreme Court noted that its
decision on the causal relationship between any bad faith and the excess judgment against [the insured] does not address the issue which this Court originally decided and granted rehearing to con sider, namely, whether this Court should reconsider the version of the excess-judgment rule adopted in our original opinion, and adopt the rule set forth in Justice Levin’s dissenting opinion. While this Court could simply vacate its original opinion upon the basis of bad faith and its causal relationship to the excess-judgment issues, we prefer to resolve the excess-judgment issue at this time. [Keeley II, supra, 436 Mich 376.]
Having said that, the Supreme Court adopted the rule articulated in Justice Levin’s dissent.
We note that the issue raised in this appeal arguably is prematurely presented to us because for Citizens to show that the Farmer parties are no longer exposed to liability in connection with the unsatisfied portion of the underlying judgment, the Farmer parties will have had to have performed their obligations under the agreement. Paragraph 10(f) of the agreement requires the individual Farmer parties to cooperate in activities associated with the lawsuit, including the attendance at evidentiary hearings and trial, as needed; failure to do so renders the agreement “null and void” with regard to the individual Farmer parties. Because trial is still pending, the possibility remains that the Farmer parties may breach the agreement and thereby forfeit the forbearance from collection to which the estate has agreed. However, we decline to resolve this appeal on this limited basis because this Court granted leave to address the substantive issue presented and trial of this action alleging bad-faith failure to settle has been placed on hold for many months pending our resolution of this appeal. We believe that under these circumstances it would be manifestly unfair to all the parties for us to fail to address the central issue before us. Further, none of the parties argues, nor do we think it reasonable to think, that the Farmer parties will fail to comply with this agreement, especially in light of the fact that failure to perform will leave the Farmer parties responsible for the excess judgment and accrued interest that exceeds $2.5 million.
See Industrial Steel Stamping, Inc v Erie State Bank, 167 Mich App 687, 693; 423 NW2d 317 (1988).
To the extent that both Citizens and the Farmer parties discuss in their briefs the instant agreement, particularly the “forever forebear” language, as different from, or similar to, the agreement in Keeley, neither argument is helpful in light of the absence in Keeley of any analysis of the underlying agreement.
We note that such assignments are permissible. Rutter v King, 57 Mich App 152, 162; 226 NW2d 79 (1974).
Moreover, we believe that our interpretation of the Keeley Court’s policy decision is supported by the Court’s reference in a footnote to Keeton’s comment on the extent of liability. Keeley I, supra, 433 Mich 562 n 27. In this comment, which the Supreme Court extensively quotes, Keeton expressed that “ ‘[i]t should be possible to formulate a workable doctrine (1) that fully protects the insured from loss, (2) that does not result in eliminating the “penalty” on the insurer, and (3) that does not produce a “windfall” for the third party claimant.’ ” | [
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Per Curiam.
After waiver proceedings in the Juvenile Division of Saginaw County Probate Court, defendant Jonathan Martin, Jr., was charged as an adult with felony-firearm, MCL 750.227b; MSA 28.424(2), and open murder, MCL 750.316; MSA 28.548; MCL 750.317; MSA 28.549. He pled guilty to second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to life imprisonment. He appeals as of right.
Defendant first claims that resentencing is mandated because the trial court led him to believe that the parole board would obtain jurisdiction to parole him in ten years even though he was sentenced to life in prison. We disagree.
In People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984), our Court recently analyzed the effects of Proposal B, MCL 791.233b; MSA 28.2303(3), on the "lifer law”, MCL 791.234; MSA 28.2304. It concluded that the Attorney General [OAG, 1979-1980, No 5,583, p 438 (October 16, 1979)] was in error in determining that the minimum term of ten years established by the "lifer law” was the "special parole” eliminated by Proposal B. "[T]he 'lifer law’, in effect, sets the minimum term on all life sentences other than first- degree murder and major controlled substance offenses at ten calendar years.” 137 Mich App 437.
The Court held that Proposal B did not repeal the "lifer law”. Proposal B eliminated only the allowances for good time, special good time, and special parole to reduce the ten-year minimum on nonmandatory life sentences. See Waterman, supra.
The defendant in Waterman received a nonmandatory life sentence for a first-degree criminal sexual conduct conviction and he was sentenced under a sentence bargain which was based on the idea that the "lifer law” would apply to the sentence making the defendant eligible for parole consideration after he served ten years in prison. The Court found that his bargain was not illusory because the defendant received that bargain.
The Waterman opinion conflicts with the dicta in People v Cohens, 111 Mich App 788; 314 NW2d 756 (1981), where the Court opined that parole eligibility for a prisoner sentenced to life for a crime enumerated in Proposal B is precluded by MCL 769.9; MSA 28.1081, which provides that no minimum term of years may be set when a life sentence is imposed. "[F]or purposes of Proposal B, the minimum term is, in effect, life imprisonment.” Ill Mich App 796. We also disagree with the dicta in Cohens.
In the instant case, it appears that the trial court believed that defendant would be eligible for parole under the nonmandatory life sentence it imposed. According to Waterman, the plaintiffs bargain is not illusory. He received the benefit of his bargain and will be eligible for parole after he has served ten calendar years on his sentence. Therefore, resentencing is not mandated.
The defendant’s remaining claim of error is also without merit.
Conviction and sentence affirmed. We retain no further jurisdiction.
The Waterman Court noted this apparent conflict and expressly disavowed the dicta in Cohens.
Judge Brennan sat on the panel which decided People v Stevens, 128 Mich App 354; 340 NW2d 852 (1983), in a per curiam opinion. The Stevens panel cited the Cohens opinion for the proposition that Proposal B mandates that the defendant serve a full life sentence (nonmandatory life for first-degree criminal sexual conduct), without elegibility for parole in ten years as provided for by the "lifer law”. 128 Mich App 357. Upon further examination of Cohens and in light of the detailed analysis provided in Waterman, Judge Brennan now believes that Waterman provides the correct interpretation of the law. | [
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] |
Per Curiam.
The plaintiff, administrator of the estate of Kevin McKeown, appeals from the order of the Saginaw County Circuit Court which compelled him to arbitrate his case by granting defendants’ motion for accelerated judgment. In an earlier, unpublished opinion, a majority of this panel reversed the decision of the circuit court and held that the medical malpractice arbitration act (MMAA) was unconstitutional. MCL 600.5040 et seq.; MSA 27A.5040 et seq. The recent disposition of this issue by the Supreme Court in Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984), resulted in the Supreme Court reversing our earlier ruling and remanding the case for consideration of the remaining issues raised by plaintiff, 419 Mich 873 (1984).
Plaintiff argues that the case must be remanded to the trial court for an evidentiary hearing on the issue of whether defendant hospital executed the arbitration agreement in strict conformance with § 5041 of the arbitration statute. Plaintiff rests on the assertion of the decedent’s mother that she was not given a copy of the information brochure, did not receive a copy of the agreement and was not given an explanation of the arbitration procedure. The trial judge held that the proper forum for the resolution of this factual dispute was the arbitration panel. The trial judge erred. This Court has consistently held that "the fact that (the MMAA) is purely a creature of statute in derogation of common law requires strict statutory compliance before arbitration may be ordered”. Capman v Harper-Grace Hospital, 96 Mich App 510, 518; 294 NW2d 205 (1980). See also Rome v Sinai Hospital of Detroit, 112 Mich App 387, 391-393; 316 NW2d 428 (1982). Therefore, we remand this Case for a determination of whether the arbitration agreement was executed properly in all respects.
We also remand for an evidentiary hearing on the plaintiffs claim that the arbitration agreement was presented to the decedent’s mother before emergency treatment was completed. Section 5042(1) of the act would appear to prohibit this. Said hearing on remand is to be held within 30 days of this Court’s release date of this opinion. Thereafter, the reporter shall provide this Court with a copy of the transcript within 50 days after the Court’s decision. We retain jurisdiction because the character of the legal issues not addressed in this opinion will be affected by the outcome of the hearings.
Remanded. | [
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Per Curiam.
Defendant, the divorced husband of plaintiff, appeals as of right from the trial court’s order requiring adherence to the terms of the judgment for dissolution of marriage entered in Illinois on October 12, 1978. Defendant also appeals from the lower court’s denial of his motion for new trial.
Pursuant to paragraph 5 of the parties’ divorce judgment and property settlement, defendant had agreed to pay plaintiff $75,625 in 121 monthly installments. Defendant complied with the terms of the judgment until December 1979, at which time plaintiff remarried. Defendant justified the subsequent termination of payments on the basis of § 510 of the Illinois Marriage and Dissolution of Marriage Act, which provides that "[t]he obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving the maintenance * * However, this section of the Illinois act is applicable only to alimony provisions of a divorce judgment, not to vested property rights. Thus, the issue presented is whether the trial court’s characterization of paragraph 5 of the divorce judgment as a property settlement was clearly erroneous. In deciding this matter, we are bound to apply Illinois law since both parties were residents of that state at the time of the judgment. Cantor v Cantor, 87 Mich App 485; 274 NW2d 825 (1978).
The distinction between alimony and a property settlement (i.e., alimony in gross) was discussed at length in Walters v Walters, 341 Ill App 561; 94 NE2d 726 (1950). The following factors were identified by the Illinois court as characteristic of alimony:
1) It extends for an idenfinite period of time.
2) It is for an indefinite sum.
3) It is based on the husband’s income and wife’s needs, and is determined from the standpoint in which they have been accustomed to living.
4) It is modifiable when the wife’s needs decrease or increase, or when the husband’s ability to pay increases or decreases.
5) It usually terminates on the death of the husband, although by agreement payments may be made a charge upon the husband’s estate after they become due.
6) It is never a charge on the husband’s estate in advance of the due date because it is not vested prior to that time.
7) It is not based on any consideration moving from the wife to the husband, but on the husband’s common-law duty to support the wife.
In contrast, "alimony in gross” is defined as:
1) A definite sum of money.
2) A payment for a definite length of time.
3) A definite charge upon the husband’s estate.
4) Not modifiable.
Further, alimony in gross may be payable in installments without affecting its nature or effect. Walters, supra, p 571; Jacobson v Jacobson, 50 Ill App 2d 244; 200 NE2d 379 (1964).
In deciding whether to construe the provisions of a divorce judgment as alimony or a property settlement, the intent of the parties may not be disregarded. Extrinsic evidence may be introduced to aid in the interpretation if the agreement is incomplete or the language ambiguous; otherwise, the parties’ intent must be determined from the language of the instrument itself. Whether an agreement is ambiguous is a question of law for the trial court. In re Marriage of Carol A Marquardt, 110 Ill App 3d 271; 442 NE2d 267 (1982).
The provision at issue here, paragraph 5 of the judgment for dissolution of marriage, provides as follows:
"The husband covenants and agrees that he will pay to the wife the sum of Seventy Five Thousand Six Hundred Twenty Five Dollars ($75,625.00) as and for nonmodifiable maintenance in gross, and in lieu and stead of permanent maintenance for the wife, payable in monthly installments on the 1st day of each month, commencing on the first day of November, 1978, and continuing upon the corresponding date of each and every month thereafter for a total of one hundred twenty one (121) months. The obligation of the husband to pay, and the right of the wife to receive, the sums for the payment of which covenant is hereinabove made, shall terminate only upon the making of the complete payment of Seventy Five Thousand Six Hundred Twenty Five Dollars ($75,625.00), by paying the sum of Six Hundred Twenty Five Dollars per month ($625.00) commencing on the 1st day of November, 1978 and continuing on the corresponding date of each and every month thereafter until November 1, 1988.
"The sums aforesaid shall be deemed to be payable incident to the entry of a judgment for Dissolution of Marriage and in full and complete discharge of the legal duty of the husband to support and maintain the wife, and to be includible in the income of the wife and deductible from the income of the husband, all within the meaning and intendment of the provisions of Section 71 and 215 of the United States Internal Revenue Code of 1954, as amended, or any identical or comparable provision of any revenue code or amendment thereof hereafter enacted.
"The parties further agree that in the event the husband dies before the completion of the maintenance in gross payments that the wife will have a claim against his estate for the unpaid balance of maintenance of gross payments,
"The parties further covenant and agree that the amount of maintenance so fixed has been arrived at in the light of the knowledge that the wife may hereafter derive income from employment or from other sources; the fact that the wife may hereafter derive such income shall not be deemed to comprise a ground for the making by the husband of an application of any Court of competent jurisdiction for a reduction in the amount of such maintenance.”
Keeping in mind the defintions of alimony and property settlement set out above, we believe the trial court ruled correctly in construing the quoted provision as a property settlement. The first indication that this was the parties’ intent, although not determinative, is the fact that the provision was labeled "maintenance in gross”. Further, the payment specified in paragraph 5 was for a definite sum of money to be paid in a definite period of time, i.e,, 121 monthly installments of $625. The agreement specifically states that the payments are not based upon plaintiffs needs or future income, and no provision for modification of the agreement is included, even in the event of a change in the plaintiff’s financial condition. Finally, the payments are charged against the defendant’s estate in advance, evidencing the intent of the parties that the plaintiffs right to the payments be vested upon entry of the judgment for dissolution of marriage.
Each of the factors listed above strongly support the trial court’s finding that the payment constituted a property settlement. The only factor which lends support to the defendant’s position in this matter is the question of consideration passing to defendant in return for the payment. See In re Marriage of Mary Ellen Lowe, 101 Ill App 3d 317; 427 NE2d 1367 (1981). Nonetheless, defendant did receive certain property, rights, and promises from the plaintiff. For example, defendant was allowed to occupy the marital home, and the parties agreed to split the proceeds from the sale of the home and to divide the furnishings, furniture and fixtures. Plaintiff accepted $20,000 in exchange for defendant’s right to keep certain stock, pension and thrift plans, and a tax shelter plan. Further, plaintiff waived all present and future rights in defendant’s personal and real property. Finally, the parties stipulated that the $75,625 would be paid "in lieu and stead of permanent maintenance for the wife”. Thus, this case is easily distinguished from Warren v Warren, 88 Ill App 3d 543; 410 NE2d 915 (1980), where consideration was found to be absent as a result of the fact that the property settlement permitted the husband to retain only his personal belongings.
Furthermore, the fact that plaintiff declared the payments as alimony on her 1979 federal income tax return is not especially significant. The settlement agreement mandates that the payments, for federal taxation purposes, be included in the income of the wife and deducted from the income of the husband. Therefore, since payments can only be deducted from the income of the husband if they are labeled as alimony, plaintiff had no choice but to declare the payments as alimony. The choice of labels had no practical significance for the plaintiff since she would be taxed in either event. Thus, plaintiff was simply complying with the terms of the agreement, a fact which does nothing to change the actual character of the payments.
We therefore affirm the trial court’s construction of the judgment for dissolution of marriage, and specifically paragraph 5 of that judgment. We also affirm the trial court’s denial of defendant’s requests for a new trial and to allow the introduction of extrinsic evidence of the parties’ intent. Defendant based his motion for new trial on GCR 1963, 527.1 and 528.3. However, none of the fac tors specified in GCR 1963, 527.1(l)-(9) were present, nor did the case involve mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud, as required in rule 528.3. Defendant’s motion was therefore groundless, and the trial court did not abuse its discretion in denying the relief requested. We also note that, since the trial court found no ambiguity in the language of the judgment for dissolution of marriage, extrinsic evidence was properly excluded. In re Carol A Marquardt, supra.
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] |
D. E. Holbrook, Jr., J.
Plaintiff appeals as of right from a judgment of the trial court in favor of defendant for $42,765.42. This judgment followed a three-day bench trial.
Plaintiff is a Michigan closely held corporation that ran into financial difficulties and rather than declare bankruptcy negotiated a take-over by S & T Industries, Inc. This agreement, which was approved by a majority of shareholders on March 30, 1981, provided for the purchase by S & T of newly authorized and issued shares. The effect of this was to diminish the ownership interest of all other holders of Morley Brothers stock from 100 percent to 19.9 percent. As this corporation is not publicly traded, no ready market to sell the stock exists. Defendants are minority shareholders who owned 9.1 percent of the stock before this transaction occurred, and are now claiming their right to dissent under MCL 450.1761; MSA 21.200(761).
On appeal, plaintiff alleges that the trial court erred in granting defendants the right to dissent and in the valuation of the stock.
Plaintiff alleges that defendants should not have been given the right to dissent as these circumstances do not meet the statutory requirements of § 761. Plaintiffs argument is that the trial court treated this as a "de facto merger”, a doctrine which the Legislature had considered and rejected. Turner v Bituminous Casualty Co, 397 Mich 406, 442, fn 3; 244 NW2d 873 (1976), reh den 399 Mich 951 (1977). We do not feel it necessary to resolve the de facto merger issue as it applies to shareholders’ appraisal rights in the instant case. Rather, we agree with Schulman & Schenk, Shareholders’ Voting and Appraisal Rights in Corporate Acquisition Transactions, 38 The Business Lawyer 1529, 1553-1554 (Aug, 1983), in which they said:
"[W]ithout the use of legal handles, a court simply can apply policy to afford shareholders of a share-issuing corporation the rights that the legislature intended to assure to shareholders of an acquired corporation.” (Footnotes omitted.)
The transaction under dispute is known as an "upside-down” acquisition, in which the corporation that issued the shares is effectively acquired by the other corporation. This may well have placed defendants in a worse position than if a transitional merger had taken place, since S & T shares may be more marketable than what remains of plaintiffs shares. Defendants are now in the position where the nature and quality of their investment has radically changed through no fault of their own. As a group, defendants now control less than 2 percent of the outstanding common stock in a corporation in which a single stockholder, S & T, owns over 80 percent of the common stock. As this stock is unmarketable, defendants would be left without a remedy if dissent and appraisal were not permitted. We believe the policy considerations behind the dissent and appraisal statutes are applicable to the case at bar.
However, we feel that this remedy should be limited to extreme cases, and adopt the following:
"One final point remains. To provide guidance when an upside-down acquisition has occurred, we offer a more detailed test to determine when the share-issuing corporation should be deemed the acquired corporation. If, in any type of acquisition, whether conducted directly or through a subsidiary, a corporation issues, immediately or potentially, an amount of stock equalling more than 100% of either its previously outstanding voting shares (common or preferred) or its common shares, the issuer may be treated as an acquired. So dramatic a dilution either in the shareholders’ voting power or in their proportionate residual equity interest should entitle them to the protection afforded shareholders of acquired corporations. We recognize that the courts may limit extension of rights in upside-down acquisitions to cases in which the nominal acquiror issues significantly more than the 100% figure mentioned above. However, prudent counsel should consider the possibility that rights will be awarded to the shareholders of the share-issuing corporation in any acquisition meeting the above test.” Id., p 1554. (Footnotes omitted.)
In the instant case the plaintiffs issued an amount of stock that was more than a 400 percent increase over the previous amount, which is well over the 100 percent increase suggested by Schulman & Schenk. Accordingly, when there is such dramatic dilution in voting power and equity share we believe that the Legislature intended to extend the legislative protection. We find no error in the trial court’s holding that defendants were entitled to dissent.
Plaintiff additionally argues that the trial court erred in its determination of the value of the stock. A review of the trial court’s valuation of dissenters’ stock is de novo, but will only be reversed if upon review of the entire record we are convinced we would have reached a different conclusion. Poss v Rossen-Poss Agency, Inc, 3 Mich App 726, 728; 143 NW2d 616 (1966), lv den 378 Mich 741 (1966).
Following a thorough examination of the record, we find that plaintiff is asserting that the court erred by $120,000, or less than 8.6 percent of the inventory’s total valuation. Plaintiff’s expert witnesses were all present or past employees and, given the lack of independent evidence and the minor amount in dispute, we find no error. Plaintiff presented no evidence to show that the valuation of prepaid expenses, the cost of liquidation, or the value of stock was different from the trial court’s assessment. Plaintiff has merely presented its views, and the trial court made its determination between the two extremes.
Plaintiff contends that the court erred in not finding a specific market value of the stock. As this stock was a minority interest in a closely held corporation that was not publicly traded, we find this argument to be without merit. The court was correct in determining that this approach had little usefulness in the instant case. We also feel the court was justified in considering and rejecting the investment value approach.
Although the court gave the most weight to the net asset approach, which placed the share value at $3.44, consideration was given to the investment and market value approach, which lowered the value to $2.74 per share. We find no authority or reasoning that would support plaintiffs allegation that a rigid formula be applied to each method of valuation. This Court notes that plaintiffs full liabilities were acceptable at the trial level and that no value was given to good will. These two factors would more than outweigh any possible overvaluation. We cannot say we are convinced that the trial court erred.
Affirmed. Costs to defendants. | [
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Per Curiam.
This case presents a contested claim for unemployment benefits. The Employment Security Commission initially determined that claimant was inelegible for benefits because she voluntarily left work without good cause attributable to the employer, MCL 421.29(l)(a); MSA 17.531(l)(a). On redetermination pursuant to MCL 421.32a; MSA 17.534(1), however, the commission held that claimant was entitled to benefits. Claim ant’s former employer, Thermotron Corporation, appealed, and the matter was heard by a referee pursuant to MCL 421.33; MSA 17.535. The referee found that claimant voluntarily left work without good cause attributable to her employer and declared claimant ineligible for benefits. The decision of the referee was affirmed by the Employment Security Board of Review on appeal by claimant pursuant to MCL 421.34; MSA 17.536, and the decision of the board was affirmed in turn by the circuit court on review pursuant to MCL 421.38; MSA 17.540. Claimant appeals as of right.
Thermotron Corporation points to Lasher v Mueller Brass Co, 392 Mich 488; 221 NW2d 289 (1974), and argues that this appeal is not properly before this Court as an appeal as of right. The Lasher decision, however, is now obsolete, because it was based on language which was formerly contained in GCR 1963, 806.2(4), but which was removed from the rule to avoid the result reached in Lasher. See 394 Mich xlii (1975) and Lasher, supra, 392 Mich 493-495, 498. Under the current version of the rule, GCR 1963, 806.1 allows an appeal as of right to this Court in the circumstances presented here.
The following facts were found by the referee and are conceded by the parties on appeal to be correct:
"The claimant started with the employer in October of 1979 and prior to her separation was a $5.50 per hour employee in the Cost Accounting Department. The claimant normally worked 40 hours a week, Monday through Friday, starting at 8 a.m. and terminating at 5:00 p.m. daily. The claimant had two supervisors, Richard Santamaría and Scott Weatherveen. The claimant’s separation came about on October 26, 1981 when the claimant walked off the job.
"The claimant reported to work on the morning of October 26, 1981 after a sleepless night and a personally trying weekend. When the claimant reported to her work station a space heater, company property, which normally was on or about the claimant’s desk was not there. The claimant talked to one of her supervisors, Mr. Santamaría, and he told her to go get the heater. It so happens that when Mr. David Stumler had reported to work that morning at approximately 7:15 a.m., 45 minutes before the claimant’s appearance, he had removed the heater and placed it in the larger reception area which he concluded had been very cold. Mr. Stumler had surmised that the heat had been turned off over the weekend and, consequently, the rather large reception area had become cold. After talking to Mr. Santamaría, the claimant proceeded to Mr. Stumler’s office and asked him if he had taken the heater and after he replied, 'yes’, without looking up from his desk, the claimant who apparently did not hear the reply said, 'okay, I quit.’ The claimant then left Mr. Stumler’s office, went to Scott Weatherveen and told him that she quit, went to her desk, got her purse and belongings and went home. At approximately 9:30 a.m. someone from the Personnel Department called the claimant and spoke to her. The claimant apparently was still upset at the time and later apparently went to bed.
"In the evening of October 26, 1981, the claimant called Mr. Santamaría, after having second thoughts, and inquired if she could come back to work. Mr. Santamaría responded that he saw nothing wrong with it. However, Mr. Santamaría went to his superiors, Mr. Stumler and Mr. Kerschen, to discuss the matter. After a evaluation of the claimant’s behavior that morning, it was the general consensus that the company should not let the claimant come back to work. Mr. Santamaría, who had not given the problem serious thought up to that point, concluded during the discussion that it would be a bad precedent to let the claimant return to work and, further, that said precedent would be bad for morale among the other 14 to 16 workers in the Accounting Department. He later called the claimant approximately an hour after the first telephone call from the claimant and told her she could not come back.”
The facts found by the referee led him to the following conclusion:
"Under these circumstances, and considering all the credible and competent evidence before the Referee, it must be concluded that this claimant’s leaving was a voluntary leaving which was not attributable to the employer. It is apparent that the claimant’s behavior on the morning in question was a consequence of the claimant’s disposition on that morning and said disposition was the result of occurrences on the weekend that had nothing to do with this employer. In McGee v Jervis B Webb Co, Inc, Case No. 80-004-405 AE, Wayne Circuit Court (June 4, 1980), the Court stated to the effect that an employee "* * * does not have the unilateral right to rescind his resignation at will.” In that case, the employee had told the employer he was quitting and he left work without authorization. Later in the same day, the employee, after second thought, attempted to revoke his resignation, the Court said he could not. The rationale in McGee, supra, is equally applicable in this case.”
The referee’s findings of fact and conclusions of law were adopted by the majority of the Employment Security Board of Review.
On appeal, claimant does not challenge the finding that she voluntarily quit work on October 26, 1981, or the legal conclusion that an employee does not have the right to rescind at will a resignation. However, claimant argues that she was rehired in her first telephone conversation with Mr. Santamaría on October 26 and that she was discharged in her second conversation with him that day. Thermotron and the Employment Security Commission argue that Mr. Santamaría was not authorized to hire anyone, but claimant responds that the referee made no such finding and that there was no evidence in the record to support such a finding.
A decision of the Employment Security Commission can be reversed on appeal only if it was contrary to law or not supported by competent, material, and substantial evidence on the whole record. See, for example, Butler v Newaygo, 115 Mich App 445, 448; 320 NW2d 401 (1982). Although the referee here failed to make an express finding of fact as to whether Mr. Santamaría was authorized to rehire claimant, as was pointed out in another context in People v Jackson, 390 Mich 621, 627, fn 3; 212 NW2d 918 (1973), findings of fact are sufficient where it is manifest that the fact finder was aware of the factual issue, that he resolved it, and that it would not facilitate appellate review to require further explanation of the path followed by the fact finder in reaching the result. The initial determination and redetermination of claimant’s eligibility for benefits and the various documents submitted to the commission by the parties demonstrate that all concerned here were aware that a crucial factual issue was whether Mr. Santamaría had authority to rehire claimant. The determination, redetermination, and documents at issue were made part of the record at the hearing before the referee. The referee’s reference to a case holding that an employee does not have the unilateral right to rescind a resignation at will, and the referee’s finding that the case to which he referred controlled the outcome of the case before him, demonstrates that the referee must have determined that Mr. Santamaría did not have the authority to rehire claimant. The record demonstrates that the referee was aware of the issue and resolved it. On this record, we see no need to remand the case to the commission for further findings.
At the hearing before the referee, two written statements by Thermotron’s personnel officer were admitted into evidence without objection. The statements indicated that Mr. Santamaría had no authority to rehire claimant. Moreover, claimant bore the burden of proof in the proceedings. Cooper v University of Michigan, 100 Mich App 99, 103-105; 298 NW2d 677 (1980). Claimant introduced no evidence tending to show that Mr. Santamaría had the necessary authority. Claimant’s claim that there was no competent, material, and substantial evidence in the record to support a finding that Mr. Santamaría had no authority to rehire her was therefore without merit.
Affirmed. | [
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R. B. Burns, J.
On February 15, 1983, at approximately 9 a.m., defendants operated snowmobiles eastbound on the south shoulder of M-94 in Alger County, traveling single file in the direction of the flow of traffic. For so doing, they were issued citations for violating MCL 257.1512; MSA 9.3200(12). Defendants pled not guilty in letters to the district court. They claimed that there were obstructions within the right of way off the shoulder and they were traveling on the extreme right of the open portion of the right of way. The district court treated the letters as motions to dismiss.
At the motion hearing, Trooper Francis R. Weber testified that he observed defendants traveling on the shoulder of the road for approximately one-eighth of a mile and that there were no obstructions in the right of way. The court adopted the testimony of Weber concerning the conditions of the right of way, but found the statute constitutionally infirm, and granted defendants’ motions to dismiss. The court found that from a reading of the statute one could not determine the permissible areas of snowmobile operation and held the statute impermissibly vague. The circuit court affirmed in a written opinion. This Court granted the prosecutor leave to appeal by order dated May 17, 1984. We reverse.
The issue presented is whether MCL 257.1512; MSA 9.3200(12) is unconstitutionally vague. This statute provides for the registration and regulation of snowmobiles and states in pertinent part:
"A person shall not operate a snowmobile upon a public highway, land used as an airport or street, or on a public or private parking lot not specifically designated for the use of snowmobiles except under the following conditions and circumstances:
"(a) A snowmobile may be operated on the right of way of a public highway, except a limited access highway, if it is operated at the extreme right of the open portion of the right of way and with the flow of traffic on the highway. Snowmobiles operated on the right of way of a public highway, as herein provided, shall travel single file and shall not be operated abreast except when overtaking and passing another snowmobile.
"(b) A snowmobile may be operated on the roadway or shoulder when necessary to cross a bridge or culvert if the snowmobile is brought to a complete stop before entering onto the roadway or shoulder and the driver yields the right of way to an approaching vehicle on the highway.”
The relevant terminology is defined in MCL 257.1501; MSA 9.3200(1):
"(g) 'Highway or street’ means the entire width between the boundary line of every way publicly maintained if any part thereof is open to the use of the public for purpose of vehicular travel.
"(h) 'Roadway’ means that portion of a highway or street improved, designated, or ordinarily used for vehicular travel. If a highway or street includes 2 or more separate roadways the terms roadway refers to any such roadway separately, but not to all such roadways collectively.
"(j) 'Right of way’ means that portion of a highway or street less the roadway and any shoulder.
“(k) 'Shoulder’ means that portion of a highway or street on either side of the roadway which is normally snowplowed for the safety and convenience of vehicular traffic.”
The prosecutor’s position is that, since the statutory definition of "right of way” specifically excludes the roadway and shoulder, a snowmobile cannot be operated on the shoulder unless the conditions described in subsection (b) of MCL 257.1512; MSA 9.3200(12) are met. That is, it is permissible to ride on the shoulder of the highway only when necessary to cross a bridge or culvert.
Subsection (a) of MCL 257.1512; MSA 9.3200(12) permits operation of a snowmobile on the "open portion of the right of way”. The lower courts found that the use of the word "open” in that phrase rendered the statute impermissibly vague and adopted the position that "open” meant "snowplowed for purposes of vehicular trafile”.
Due process requires that a person know in advance what questionable behavior is prohibited. Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972); People v Bruce, 102 Mich App 573, 577; 302 NW2d 238 (1980). A statute may be challenged for vagueness if it does not provide fair notice of the proscribed conduct, if it confers on a trier of fact unstructured and unlimited discretion to determine whether an offense has been committed, or if its coverage impinges on First Amendment freedoms, Grayned, supra, 408 US 108-109; People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976); People v Gagnon, 129 Mich App 678, 683; 341 NW2d 867 (1983). Here, the court determined that the statute in question did not provide fair notice of the conduct proscribed and that what the court perceived as an unnatural statutory definition of the term "right of way” was a trap for the unwary.
Constitutional challenges on the basis of vagueness, other than those based on First Amendment rights, must be examined in light of the particular facts of the case at hand. United States v National Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963); People v Howell, supra. As applied to the facts of this case, the statute was not impermissibly vague. Here, the district court, not defendants, raised the constitutional issue. Defendants were not confused about where they were permitted to operate their snowmobiles.
Generally, a court will not inquire into the constitutionality of a law on its own motion; only those constitutional questions which are duly raised and insisted on, and adequately argued, will be considered. 6 Michigan Law & Practice, Constitutional Law, §84, p 89. Here, the district court sua sponte raised the issue because it had previously held the statute constitutionally infirm in a similar case. Although defendants have not submitted a reply brief, the issue is adequately argued in the prosecutor’s brief and the record is sufficiently developed for this Court’s determination.
In People v O’Donnell, 127 Mich App 749, 757; 339 NW2d 540 (1983), the Court stated:
"It is well established that legislative enactments are cloaked with a presumption of constitutionality. Where a statutory provision would otherwise be unconstitutional, it is the Court’s duty to give the statute a narrowing construction so as to render it constitutional if such a construction is possible without doing violence to the Legislature’s intent in enacting the statute. People v McQuillan, 392 Mich 511, 536; 221 NW2d 569 (1974); Nunn v George A Kantrick Co, Inc, 113 Mich App 486, 491; 317 NW2d 331 (1982).”
The lower courts erred in failing to read the statute in its entirety, and instead, narrowly fo cused on the term "open portion of the right of way”. The term "open” which the courts found vague must be read in conjunction with the statutory definitions of "right of way” and "shoulder”. As "right of way” is defined in the statute as that portion of a highway less the roadway and shoulder, the "open portion of the right of way” necessarily refers to that area outside the roadway and shoulder. The courts also failed to consider the specific restriction in subsection (b) of MCL 257.1512; MSA 9.3200(12) which provides that a snowmobile may be operated on the shoulder only when necessary to cross a bridge or culvert. A plain reading of the statute in its entirety reveals no vagueness. An ordinary person can sufficiently understand the statute.
Reversed. | [
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T. Gillespie, J.
Chapter 3, Section 115 of the City of Saginaw Administrative Code provides that city employees shall maintain a permanent and bona fide residence within the corporate limits of the city and that failure to do so is deemed to be an abandonment of employment.
Mrs. Nancy Lindquist was a clerk typist who, in 1981, had been employed for ten years by the city. She and her husband sold their Saginaw residence and purchased a home in Lupton, Michigan. The children were placed in school in Lupton and Mrs. Lindquist commuted to Lupton on weekends and on those occasions when the children’s health and school activities required her attendance. She maintained a Saginaw address; however, the city determined that the claimed Saginaw residence was not a bona fide residence and terminated her employment. The termination was classified as a voluntary quitting. When she applied for unemployment compensation, the referee found her ineligible for benefits because she was "discharged for reasons constituting misconduct with her work”. On appeal, the Michigan Employment Security Board of Review, in a two-to-one decision, decided that, while Lindquist had violated the city’s residence requirements, such conduct was not work connected and reversed the disqualification.
The city appealed to the Saginaw County Circuit Court, which sustained the board of review. The city appeals to this Court.
We reverse and remand.
Nancy Lindquist was hired by the City of Saginaw Water and Sewer Maintenance Department on August 23, 1971, as a clerk typist. On January 27, 1981, an anonymous telephone call came to the city reporting that Nancy Lindquist was not living in Saginaw. She had reported that her address was 3122 Fulton Street, Saginaw. The address was a property owned by Gladys Brown, a deceased aunt of Mrs. Lindquist’s husband. Upon investigation the city found the house was for sale, the water and sewer were disconnected, and Michigan Bell Telephone Company had no listing for her. When Mrs. Lindquist met with city officials, she told them that she lived at that address a few days each week. Her husband and children lived in Lupton and she saw them on weekends and when she would go home if one of the children was ill. She paid no rent or utilities, but was registered to vote in Saginaw and the address on her driver’s license was there. She was aware of the residency requirement.
Based on the information received, Mrs. Lindquist’s employment was terminated on February 5, 1981, for failure to maintain a bona fide residence in the City of Saginaw.
On May 8, 1981, the Michigan Employment Security Commission referee found that such violation was misconduct which would disqualify Lindquist from receiving unemployment benefits.
The board of review of the MESC on March 12, 1982, in a two-to-one decision, reversed the decision of the referee. The finding was unanimous that Lindquist had violated the city’s residency requirement, however, the majority felt that such conduct was not work connected and reversed the order disqualifying her from receiving unemployment benefits.
The city filed an appeal in the Saginaw Circuit Court on June 9, 1982, seeking review of the MESC Board of Review’s decision pursuant to MCL 421.38; MSA 17.540 and GCR 1963, 706.2. The MESC and Lindquist were named as adverse parties and were served with copies of the appeal. Lindquist filed a motion for summary judgment, but did not serve the MESC. The motion was argued by the attorneys for the city and Lindquist. The MESC was not represented by counsel at the hearing on the motion due to failure to notify it of the hearing. On September 28, 1982, the court issued its opinion, holding, as had the MESC review board, that the violation of the city’s work rules relating to residency did not establish misconduct under the Michigan Employment Security Act, and entered summary judgment in favor of Lindquist.
The city appealed to this Court. Lindquist filed a motion to affirm on the grounds that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submissions. GCR 1963, 817.5(3).
The MESC, after a review of the case by its Benefit Appeals Committee, decided to take a position supporting the position of the city even though the city in its appeal to the circuit court had named the MESC as an adverse party.
Lindquist argues in this appeal that the city failed to prove by competent, material and substantial evidence that she did not reside in Saginaw.
Residence of one’s family is not determinative, but is a relevant factor. The question of residency is one of intent which is arrived at from careful consideration of all facts and circumstances. Choike v Detroit, 94 Mich App 703; 290 NW2d 58 (1980), lv den 408 Mich 892 (1980); Grable v Detroit, 48 Mich App 368; 210 NW2d 379 (1973).
The burden of proof in a residency case rests with the city and not the employee. Masters v Highland Park, 79 Mich App 77; 261 NW2d 215 (1977), aff'd 402 Mich 907 (1978).
The referee and board of review of the MESC found that Lindquist did not reside in Saginaw. This finding was supported by competent, material and substantial evidence on the record considered as a whole and was not contrary to law and is therefore sustained. Const 1963, art 6, § 28; MCL 24.306(1)(d),423.216;MSA3.560(206)(1)(d), 17.455(16). West Ottawa Education Ass’n v West Ottawa Public Schools Bd of Ed, 126 Mich App 306; 337 NW2d 533 (1983).
The substantive issues in this case are whether failure to comply with the residency requirement of a city code is a voluntary leaving which is grounds for denial of unemployment compensation benefits under MCL 421.29(l)(a); MSA 17.531(l)(a) and whether such failure to comply would be misconduct such as will disqualify the employee for such benefits under MCL 421.29(l)(b); MSA 17.531(l)(b).
The case as decided by the referee, the board of review and the circuit court dealt only with the issue of misconduct.
The validity of the discharge is not in question. The question appealed is whether the failure to comply with the residency requirement was misconduct. The MESC has also raised the question of whether Lindquist should be disqualified for benefits on the basis that she "left work voluntarily without good cause attributable to the employer”.
Pennsylvania has a statutory scheme which is similar to the Michigan statutory scheme relative to disqualification for benefits on termination of employment. In Rodgers v Commonwealth Unemployment Compensation Board of Review, 40 Pa Commw 552; 397 A2d 1286 (1979), on facts nearly identical to those in this case, the court found that claimant was aware of the requirement that she live in Philadelphia while employed as an executive secretary for that city. She maintained an address at her son’s apartment in a duplex in Philadelphia and a home in Richboro. The board found her residence was really Richboro. The court held that not maintaining a real residence in Philadelphia, while it was not willful misconduct per se, was a deliberate violation of the employer’s best interests.
The evidence in this case led both the referee and the board of review to the conclusion that Mrs. Lindquist had established a "paper residence” to comply with the residency requirement. The referee and one member of the panel found such attempt to be grounds for disqualification for benefits. Two members of the review panel did not.
We find that by application of the definition of "misconduct” set forth in Carter v Employment Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961), there was an intentional and substantial disregard of her obligation to her employer which could be considered misconduct.
MCL 421.29(l)(a); MSA 17.531(l)(a) provides that an individual may also be disqualified if the individual:
"(a) Left work voluntarily without good cause attributable to the employer or the employing unit.”
In Williams v Detroit Civil Service Comm, 386 Mich 507; 176 NW2d 593 (1970), followed by Gahtz v Detroit, 392 Mich 348, 359; 220 NW2d 433 (1974), the Supreme Court confirmed the right of a city to require residency as a continuing condition of eligibility for employment. As pointed out in Gantz:
"[W]hen the employee ceases to be a city resident he ceases to be eligible for continuing employment and the commission has the duty to find that the employee’s position has been vacated by the action of the nonresident employee who has made himself ineligible for continued employment. In effect the position is vacated by action of the nonresident employee.” (Emphasis in original.)
Mrs. Lindquist undoubtedly wished to follow her husband and family to Lupton. She also wished to keep her employment. She attempted to avoid the consequences of her change of residence by maintaining an address in Saginaw. This was a good personal reason, but a good personal reason does not equate with good cause under the statute. Cooper v University of Michigan, 100 Mich App 99, 107; 298 NW2d 677; 15 ALR4th 249 (1980).
Loss of qualification for employment because of residency is in the control of the employee and falls within the meaning of "voluntary leaving without good cause attributable to the employer or employing unit” and is not a "constructive voluntary leaving”. Echols v Employment Security Comm, 380 Mich 87, 92-93; 155 NW2d 824 (1968).
The last issue is whether the circuit court could grant summary judgment in favor of Mrs. Lindquist where notice of the motion for summary judgment had not been given to the MESC.
MCL 421.38(3); MSA 17.540(3) provides:
"The (Michigan Employment Security Commission) shall be considered to be a party to any judicial action involving an order or decision of the board of review or a referee.”
GCR 1963, 107.1(1), the court rule governing service and filing of pleadings and other papers, states:
"Unless otherwise specifically provided by this rule, every party who has filed a pleading, an appearance, or motion shall be served with a copy of every written paper subsequently filed in the action, including a default if one has been entered against him.”
The Michigan Employment Security Commission filed an appearance in this matter on June 21, 1982, and as of that time was a party to this action. On July 7, 1982, Lindquist filed a motion for summary judgment in this action but failed to give notice of the hearing on the motion to the MESC.
On August 2, 1982, the hearing on Lindquist’s motion for summary judgment was held in which the court heard arguments by Lindquist and the City of Saginaw. However, the MESC was unrepresented at the hearing due to its failure to receive notice. After hearing arguments the court took the motion under advisement and on September 28, 1982, issued an opinion. The court held that the violation of the employer’s work rules, as it related to residency, did not establish misconduct under the Michigan Employment Security Act and entered summary judgment in favor of Lindquist.
The MESC was denied an opportunity to argue its position at the hearing held on Lindquist’s motion for summary judgment as required by statute and court rule.
The case is reversed and remanded to the circuit court to enter an order in conformity with this opinion. | [
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Per Curiam.
Defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549, as part of a plea bargain. Defendant was sentenced to life imprisonment. He now appeals his sentence to this Court as of right.
Defendant claims that he must be resentenced because the trial court erred in interpreting the relevant statutes and concluded that defendnt would be eligible for parole consideration under the lifer law, MCL 791.234(4); MSA 28.2304. Defendant relies in large part on an opinion by the Attorney General which held that 1978 Initiative Proposal B to amend 1953 PA 232, § 33, MCL 791.233; MSA 28.2303, in effect repealed the "lifer law”, MCL 791.234(4); MSA 28.2304(4). See, OAG, 1979-1980, No 5,583, p 438 (October 16, 1979). Defendant contends that he must be resentenced because the trial judge indicated he expected defendant would be considered for parole under the "lifer law”, MCL 791.234(4); MSA 28.2304(4). Defendant suggests that because OAG, 1979-1980, No 5,583 bars consideration for parole when a life term is imposed, he must be remanded to the trial court to be sentenced to a term of years so that he can be considered for parole in the future.
Defendant’s reliance on the Attorney General’s opinion to support his appeal for resentencing is misplaced. In People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984), this Court found the Attorney General’s opinion to be in error. This Court held that Proposal B did not repeal the "lifer law”, 1953 PA 232, § 34; MCL 791.234; MSA 28.2304. Therefore the defendant’s case did not need to be remanded for resentencing the defendant to. a term of years. The Waterman panel states that principles of statutory construction required the conclusion that Proposal B did not repeal the lifer law. The express purpose of Proposal B was to amend 1953 PA 232, § 33, being MCL 791.233; MSA 28.2303. The language of Proposal B makes clear that there was no intention to amend the lifer law. Proposal B only amended § 33 so that the allowances for good time, special good time and special parole in subsection (b) of § 33 were repealed. We agree with the Waterman panel that repeal of the lifer law by implication cannot be found here. The trial court reached the same conclusion:
"I make the statement for the record so any reviewing court will know, in my opinion, a person now sentenced to a life sentence other than for first-degree murder or a major controlled substance offense is eligible for parole after ten calendar years. It wouldn’t make sense now that there are sentence credits available under what used to be Proposal B offenses, it wouldn’t make sense * * * to use the reasoning that the Attorney General used * * * in analyzing the affect [sic] of Proposal B * * *. So, I think the reasoning would no longer apply.
"But I think it more appropriate to impose a life sentence with the understanding that — not that Mr. Dziuba ought to be paroled in ten years at all but at least that the department would have the opportunity to look at it and to make — parole board would have an opportunity to make some judgments on his conviction at that time.
"I’ll also indicate that if the — if a reviewing court believes that I am wrong in my analysis of the effect of the — of a life sentence in terms of eligibility for parole, if I thought I was wrong, I would right now impose a — a sentence with a minimum of 20 years and a maximum of 165 years.”
We agree with the trial court that defendant’s life term does not bar later consideration for parole under the "lifer law”, MCL 791.234; MSA 28.2304.
Our conclusion is buttressed by considerations other than those stated in Waterman, supra. First, we note that § 33 and § 34 were both enacted as part of 1953 PA 232. Thus the sections must be harmonized if possible and each word given effect. Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971); 2A Sutherland, Statutory Construction (3d ed), § 46.06, p 63. The original enactment of § 33 stated that no prisoner shall be granted parole "until he has served the minimum term”. Nonetheless § 34 of the same enactment contemplates consideration for parole after 10 calendar years when a life sentence was imposed (excluding life sentences for first-degree murder). This by inference negates the Attorney General’s opinion that the minimum term of a life séntence is, in effect, life imprisonment. To give the words the effect proposed by the Attorney General would result in an interpretation of the statute which would imply an inconsistency in the statute at the statute’s inception.
We also note that MCL 791.233; MSA 28.2303 was amended after Proposal B went into effect by 1982 PA 458. The amendment made by 1982 PA 458 suggests that a defendant sentenced to life imprisonment, except for first-degree murder or a major drug offense, may become eligible for parole consideration under the lifer law, MCL 791.234; MSA 28.2304, after ten calendar years of imprison ment. A third point is that the lifer law, MCL 791.234; MSA 28.2304, was amended after Proposal B was passed and the lifer law was left essentially intact. See 1982 PA 314. This fact leads us to conclude that the lifer law was, indeed, unaffected by Proposal B because the Legislature had the opportunity to change the lifer law and eliminate consideration for parole after ten years but declined to do so. We thus conclude for these reasons and for the reasons advanced by the Waterman panel that defendant need not be resentenced because he will be eligible for parole consideration, as the trial court believed, under the lifer law after serving ten calendar years. Defendant’s sentence is therefore affirmed.
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Per Curiam.
This is an appeal from an order of the Ingham County Circuit Court affirming an order of the Insurance Commissioner. The commis sioner disapproved an age- and area-rating system used by plaintiff for some of its association group business.
A brief recitation of the history behind this case is necessary to understand the issues involved. When Blue Cross & Blue Shield of Michigan began doing business, the same rate was charged for all members of the community who wanted coverage. This was community rating. In more recent years, "community rating” has been abandoned in favor of experience rating. For experience rating, the community is divided into groups. The most common type of group consists of the employees (and dependents) of a single large employer. Other types are pools of small employee groups and associational groups.
The commissioner’s order affects the health insurance rates offered by BCBSM to members of four associations: Michigan Farm Bureau, Michigan Dental Association, Metro Realtors, and the "legal professional group”. Those who qualify as members of these groups can, if they wish, obtain coverage from BCBSM under the auspices of the group.
Experience-rated groups pay rates based on BCBSM’s experience in paying benefits on behalf of members in prior years. A group with a high rate of utilization of benefits pays high rates and vice versa. Age- and area-rating provide for differences in rates among individual members of groups. Rates vary depending on a subscriber’s age and region of residence. In practice, rates went up for older subscribers and those living in the southeastern Michigan metropolitan area. Age- and area-rating results in relatively reduced rates for younger and outstate subscribers.
The Insurance Commissioner’s authority to regulate BCBSM stems from BCBSM’s operation under special statutes governing non-profit medical care and hospital care corporations. The present statutory scheme regulating BCBSM is explained in footnote 3 of Justice Levin’s concurring opinion in Westland Convalescent Center v BCBSM, 414 Mich 247, 274; 324 NW2d 851 (1982). Both parties agree that the commissioner may disapprove rates offered by BCBSM unless "the rates to be charged and the benefits to be provided are fair and reasonable”. The statutory basis for the exercise of the commissioner’s rate-reviewing authority was set forth by the Supreme Court in BCBSM v Ins Comm’r, 403 Mich 399; 270 NW2d 845 (1978):
"The section of the enabling legislation which grants the Commissioner continuing rate approval authority, MCL 550.503; MSA 24.623, applies only to hospital services and does not state what standards are to guide the Commissioner in exercising that authority. It only provides that '[t]he rates charged to the subscribers for hospital service, and the rates of payment of the corporation to the contracting hospitals * * * are subject to the approval of the commissioner of insurance’. However, the section which sets forth the Commissioner’s authority prior to issuing a certificate of authority to do business, MCL 550.305; MSA 24.595, provides guidance as to the proper standard. That section states that prior to issuing the certificate, the Commissioner must be satisfied that 'the rates to be charged * * * are fair and reasonable’. (Emphasis added.) No other section of the enabling legislation speaks of a standard for exercise of the Commissioner’s continuing rate approval authority. In addition, there is no indication in the legislation that some different standard is to guide the Commissioner after issuing the certificate of authority. It is logical to assume therefore that the Legislature intended the standard of 'fair and reasonable’ rates to apply both before issuance of the certificate and upon the statutorily provided continuation of rate-setting authority.” BCBSM, pp 428-429.
To disapprove a proposed rate to be charged to a subscriber, the commissioner must determine that the rate is unfair or unreasonable.
On appeal, BCBSM claims that the commissioner acted arbitrarily in disapproving age- and area-rating and that the affirmance of her decision by the circuit judge was error. It claims that her decision disregarded the needs of BCBSM subscribers, that she improperly placed BCBSM at a competitive disadvantage with respect to its commerical competitors, and that the commissioner utilized erroneous standards in disapproving the rates.
BCBSM presented testimony indicating that the market for health insurance among members of associational groups was guided by the same principles as that for individuals, in that consumers have choices dependent upon their individual characteristics. If an associational group plan is priced without regard to the consumer’s age or residence, the risk is posed that individuals who are members of classes posing lower risks (e.g., young, non-metro) will seek insurance incorporating age- and area-rating from commerical competitors of BCBSM. Such individuals might also choose to go without coverage. The failure to provide rate relief to these individuals may result in a group’s loss of its members who pose the lowest risks. When significant numbers of "low-risk individuals” leave an experience-rated insurance group, the rates for the group soar. BCBSM established that rates for its associational group business had increased even faster than the staggering rate of increase of health care costs generally. BCBSM termed this the "anti-selection spiral” and presented evidence that it had already substantially affected rates available to members of associational groups. The associations in question had requested age- and area-rating systems to be incorporated into the rate structures offered to their members.
In her opinion disapproving the proposed rates, the commissioner stated that BCBSM failed to prove that the impact on subscribers and on the general public of the use of age- and area-rating factors was not adverse and failed to present sufficient evidence that the use of such factors was beneficial rather than harmful to subscribers and the general public. She also held that BCBSM failed to establish that the use of such factors was appropriate. She stated that its failure to obtain prior approval for the use of these rating factors was itself a sufficient reason for withholding approval. Finally, she held that the evidence opposing the use of age- and area-rating factors established that it would be harmful to approve the use of such factors at this time. In all respects relevant to this appeal, the circuit court affirmed the decision of the commissioner.
To a large extent, the commissioner’s use of generalities to explain the reasons for her decision handicaps effective judicial review. In particular, she failed to address the problem posed by the "anti-selection spiral” and failed to explain why age- and area-rating were, in general, either unfair or unreasonable.
We nonetheless affirm the decision of the trial court and that of the commissioner based on those findings which are explained in her opinion. She clearly held that several independently sufficient reasons existed for disapproving the rates.
The first was BCBSM’s use of the rates without seeking the prior approval of the commissioner. We reject BCBSM’s entirely unwarranted claim that its proposed rates incorporating age- and area-rating were not subject to prior approval by the commissioner. BCBSM’s argument that no rates were changed when it changed rates to individuals within a group which, in the aggregate, paid the same amount as before is without merit. Each subscriber is entitled to rates which are fair and reasonable. Aggregate rates are not determinative where the rates are charged to individuals.
We also agree that the evidence presented by BCBSM, while perhaps adequate to establish the desirability of some type of age- and area-rating system, did not establish that the system adopted was fair and reasonable. The testimony of BCBSM officials indicated that age and area factors were used which fully reflected the claims experience of groups divided by age and region of residence. No testimony was presented, however, indicating that changes of that magnitude were required in order to combat the "anti-selection spiral” effectively. No evidence was presented indicating the degree to which rates must reflect the lower claims experience of young, non-metro individuals in order to induce those individuals to remain within an associational group. Other evidence presented at the hearing suggested strongly that BCBSM had substantial advantages over commercial competitors, both in price and in quality of service. BCBSM has not shown that it cannot use these advantages to offer commercially reasonable rates to members of low-risk groups while retaining many of the benefits of risk-sharing which inhered in the community-rating concept.
At the hearing on age- and area-rating, the commissioner also indicated several of her concerns which were not satisfied by the evidence presented by BCBSM. BCBSM failed to show that its discrimination among subscribers based on age and location of residence was designed with fairness, and not expediency, in mind. To the extent that age- and area-rating is required to attract subscribers who are members of relatively low-risk classes, the commissioner may insist that the resulting rates should be as fair as possible. The evidence presented by BCBSM did not indicate that any substantial effort was made to limit the damaging effects of a rate structure incorporating age- and area-rating.
BCBSM argues that the commissioner’s decision was arbitrary and capricious, because it incorporated age- and area-rating into its rates for members of associational groups only after requests made by those associations. Although we find that the wishes of the leadership in the associations in question are important factors to consider, they are not determinative. Following the will of the majority does not necessarily protect the rights of a minority. Although no evidence indicated oppression within the associations in question, such oppression could preclude rates desired by the majority of a group from being fair and reasonable. In the present case, we view the expressed wishes of the leadership of the associations in question as strong evidence of the desirability (for all) of some means of incorporating age- and area-rating into health insurance rates. We agree with BCBSM that the commissioner must consider the needs of the majority of the members of the associations in question. We hold, however, that she did not entirely ignore the wishes of group members. Her failure to give much weight to their wishes does not undermine the adequacy of the reasons we have found supporting her decision.
BCBSM also claims that the commissioner acted arbitrarily and capriciously by placing it at a competitive disadvantage with respect to commercial health insurance carriers. We find no merit in this argument. Although BCBSM operates according to principles similar to those of insurance companies, it is not carried on as an insurance business, but rather provides a method for promoting the public health and welfare in assisting persons to budget health care costs. BCBSM v Ins Comm’r, 403 Mich 399, 418; 270 NW2d 845 (1978). These principles are quite different from those governing commercial insurers. It is neither fair nor reasonable to insist that BCBSM be allowed to adopt any rate structure used by its competitors when BCBSM operates under statutes which give it extremely significant advantages over its competitors in many respects.
BCBSM argues that the commissioner must judge its rates in relation to the benefits provided to individual subscribers in determining if the rates are fair and reasonable. The most important consideration, according to BCBSM, is whether subscribers are receiving fair and reasonable value. It claims that where it pays out more in benefits on behalf of one class of subscribers than on behalf of another, the latter class is entitled to lower rates for coverage. We find this argument to be flawed. The rates challenged by the commissioner are not paid by classes of subscribers, but by individual subscribers. The impact of age- and area-rating on an individual subscriber may be unfair and unreasonable, despite its reasonableness when applied to a class of subscribers to which the individual belongs. As the commissioner noted, factors other than age and location of residence may be significantly related to benefits paid on an individual’s behalf. Discrimination by age and location of residence will necessarily produce imperfect predictions of utilization of health care benefits when applied to any individual. For certain individuals, discrimination by age and location of residence in predicting costs of coverage may be unfair and unreasonable. These individuals are entitled to the commissioner’s protection.
BCBSM relies on the principle that each class of customers must pay its own way, and that rates incorporating a subsidy between classes are unfair and unreasonable. See El Paso Electric Co v Federal Energy Regulatory Comm, 667 F2d 462, 468 (CA 5, 1982); Jones v Kansas Gas & Electric Co, 222 Kan 390; 565 P2d 597 (1977); Jager v State, 537 P2d 1100, 1109-1110 (Alaska, 1975). This principle, drawn from public utility rate cases, has also been applied to Blue Cross rates. Blue Cross of Kansas, Inc v Bell, 227 Kan 426; 607 P2d 498 (1980). We disagree with the application of this principle to cases involving Blue Cross rates. In the case of most public utility rates, what a customer pays is dependent upon what he uses. The business of insurance, on the other hand, necessarily involves a far more imperfect assessment of the cost of benefits provided. Where no element of risk-sharing is involved, it is much easier to conclude that subsidies between classes of customers are unfair.
While we affirm the commissioner’s decision in this case, it is not without some reservations. It may not be enough for the commissioner to declare that there is insufficient evidence to show that a rate is fair and reasonable, without specifying what types of evidence are required to make this showing. Where the commissioner’s opinion consists only of conclusory statements, she risks a reviewing court’s conclusion that she has merely substituted her judgment for that of BCBSM’s board of directors. She is not given the authority to do so by statute or otherwise. She may only disapprove those rates which are unfair or unreasonable.
The commissioner alleges that, subsequent to the filing of the appeal in this case, BCBSM caused to be transferred coverage of Farm Bureau and Bar Association members to a foreign insurance company (not regulated under the Blue Cross act) created by the National Blue Cross and Blue Shield Association. The commissioner moved in this Court for "a protective order” precluding BCBSM from carrying out these agreements. These motions presented substantial issues of law which were not merely incident to the decision to be made on appeal. These issues are not, therefore, properly a part of the decision on appeal. The commissioner should attempt to raise these issues in the trial court or should file an original action seeking the relief sought in the motions. Since the questions of which forum is most appropriate to address these issues and which remedies are required under the circumstances are not properly before us, we decline to address them.
Affirmed. No costs, a public question being involved.
The "legal professional group” was composed of members of the group which had previously been offered Blue Cross coverage under the auspices of the State Bar of Michigan. The offering was made after the State Bar withdrew its endorsement from BCBSM in favor of a commercial carrier. | [
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Per Curiam.
Plaintiff appeals as of right from the trial court’s grant of summary judgment in defendant’s favor, which upheld defendant’s determination that certain records contained in defendant’s file on plaintiff were exempted from disclosure under Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq.
We affirm.
Defendant administers a joint federal-state program providing vocational rehabilitation services to handicapped persons. The operative state legislation is the Rehabilitation Act of 1964, MCL 395.81. et seq.; MSA 15.859(1) et seq. The state’s program plan must meet the guidelines of the federal legislation, the Rehabilitation Act of 1973, 29 USC 701 et seq., and the regulations promulgated thereunder. These regulations were compiled at 45 CFR 1361.1 et seq. at the time defendant made its decision to withold the requested information in the instant case. These are now compiled at 34 CFR 361.1 et seq.
Plaintiff was a former participant in this vocational rehabilitation program. In 1977, his participation ceased. In 1980, plaintiff requested an opportunity to view the entire contents of his closed vocational rehabilitation file. Defendant, however, allowed plaintiff only a limited review of his file on the basis that in the professional judgment of the assistant district office supervisor, release of some of the records to plaintiff would be harmful unless released to him in the context of a therapeutic relationship.
The federal Rehabilitation Act of 1973, supra, was enacted to create programs of vocational rehabilitation and provides for federal funding of a state’s rehabilitation program. To receive federal funding, a state must comply with requirements set forth in the federal act which includes complying with regulations promulgated by the commissioner of the rehabilitation services administration under the authority of 29 USC 711(c).
At the time defendant made its decision to withhold the information sought by plaintiff, 45 CFR 1361.47 was in effect, which read as follows:
"(a) The State plan shall provide that the State agency will adopt and implement such regulations as are necessary to assure that:
"(5) Upon written request, information may be released to the client or, as appropriate, his parent, guardian or other representative, and shall be released to such client, parent, guardian, or other representative for purposes in connection with any proceeding or action for benefits or damages, including any proceeding or action against any public agency: Provided, (i) That only such information as is relevant to the needs of the client shall be release, and (ii) in the case of medical or phychological information, the knowledge of which may be harmful to the client, such information will be released to the parent, guardian, or other representative of the client by the State agency, or to the client by a physician or by a licensed or certified psychologist * *
Defendant and the trial judge held that the regulation was a statute specifically describing and exempting the records sought by plaintiff. Thus, they concluded that the records were exempt from disclosure pursuant to § 13 of the FOIA, MCL 15.243(l)(d); MSA 4.1801(13)(l)(d), which provides that a public body may exempt from disclosure as a public record under the act records or information specifically described and exempted from disclosure by statute. Since agency regulations promulgated by the federal government have the force of federal statutory law, Wyoming Hospital Ass’n v Harris, 527 F Supp 551, 557 (D Wy, 1981), reliance upon a federal regulation to exempt a document is proper.
That disclosure of the information to plaintiff might have been harmful is supported by both the testimony of the assistant district office supervisor, who is also a professional counselor and who had access to and reviewed the file in question, and the testimony of a psychiatrist who, based on a hypothetical situation concerning an individual with traits and a history similar to plaintiff’s, testified that in his opinion release of the information would be harmful to such a person.
Our disposition of the above issue makes it unnecessary to address the other issues raised by plaintiff on appeal.
Affirmed. | [
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] |
Per Curiam.
Steven E. Robinson, a mentally incompetent person, by and through his legal guardian, Delores Robinson, appeals by leave granted from a decision of the Workers’ Compensation Appeal Board which reversed an award of workers’ compensation benefits to plaintiff. Plaintiff was employed by Chrysler Corporation on September 28, 1978, and was discharged the following day. Shortly thereafter, he was hospitalized as a result of his mental condition. The guardian filed a petition seeking a determination as to whether plaintiff was disabled and, therefore, entitled to workers’ compensation benefits. The hearing referee found in favor of the plaintiff and awarded benefits. The WCAB reversed that decision and denied the continuation of plaintiff’s benefits. Plaintiff’s application for leave to appeal to this Court was granted.
Plaintiff contends that the WCAB erred in finding that his disability arose out of the termination of his employment rather than due to his employment. Also, plaintiff argues that the WCAB’s.determination that an injury suffered by termination was not compensable constituted an error of law.
As to the first contention, there was sufficient competent evidence to support the board’s finding. Therefore the finding is conclusive. Mitchell v Metal Assemblies, Inc, 379 Mich 368; 151 NW2d 818 (1967).
As to the second question, whether there was an error at law, neither side has cited a Michigan court case directly on point.
In Blom v Baraga County Memorial Hospital, 1964 WCABO 366, the board decided that emotional distress resulting from loss of employment is not a compensable injury under the Worker’s Disability Compensation Act. While that decision was rendered under the former act, MCL 412.1; MSA 17.151, the new act reads substantially the same:
"An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act.” MCL 418.301(1); MSA 17.237(301X1) (emphasis supplied).
An "injury” under the act also includes a mental work-related injury. Carter v General Motors Corp, 361 Mich 577, 593; 106 NW2d 105 (1960).
Accordingly, we agree with the WCAB’s longstanding interpretation of the act holding that mental injury caused by a termination of employment is not compensable under the Worker’s Disability Compensation Act. Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513, 519; 158 NW2d 473 (1968). A mental injury which arises from the loss of employment simply cannot logically "aris[e] out of and in the course of employment”. Cf. Milton v Oakland County, 50 Mich App 279, 284; 213 NW2d 250 (1973) (mental injuries created by employer’s alleged breach of an employment contract cannot be classified as industrial injuries within the meaning of the act), and Jamison v Storer Broadcasting Co, 511 F Supp 1286, 1298 (ED Mich, 1981) (an emotionally based injury resulting from discharge is not within the scope of the act).
Affirmed. | [
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R. B. Burns, J.
Plaintiff, Central Transport, Inc., brought this action to obtain title to 163 truck trailers which were the subject of a lease agreement with defendants Fruehauf Corporation and Fruehauf Finance Corporation (hereinafer defendant). Plaintiff claimed that defendant had orally promised to transfer title to the trailers at the end of the lease period for a title transfer fee of $10 per trailer. Defendant denied it made such a promise, and filed a counterclaim for conversion. After trial, the court found in defendant’s favor and entered judgment on its counterclaim, with statutory interest. Plaintiff appeals from the judgment of no cause of action on its claim. Defendant cross-appeals, raising several issues concerning damages.
In September and October, 1970, Michigan Express, Inc (hereinafter MX), entered into three agreements to lease 165 trailers from defendant. The lease terms, other than the trailers involved and the rental amount, were identical. The leases provided that MX agreed "to pay all costs and expenses (including actual and reasonable attorney fees where recovery of same is not prohibited by law) incurred by Lessor in enforcing its rights with respect to the equipment or [the] lease”. Defendant could require MX to return the trailers on 30 days notice "after the expiration of the minimum term”, which was 84 months. MX was obligated to return the equipment "in the same condition as it was when delivered” to MX, "ordinary wear and tear excepted”. The contracts each contained an integration clause:
"This instrument contains the entire agreement between the parties pertaining to the subject matter hereof. No agreements, representations, or understandings not specifically contained herein shall be binding upon any of the parties hereto unless reduced to writing and signed by the parties to be bound thereby. The terms, covenants, conditions and provisions of this Agreement may hereafter be changed, amended or modified only by an instrument in writing, specifically purporting so to do, and signed by the parties to be bound thereby.”
The agreements were signed by the president of MX, Gerald Rykse. At trial, Rykse testified that when the leases were negotiated, he discussed ownership of the trailers with Richard Cross, defendant’s Grand Rapids branch manager, and that Cross promised to send MX a letter which would evidence MX’s option to buy the trailers for $10 each at the end of the lease. According to Rykse, the parties again discussed the letter when the first two leases were executed. The letter was never sent. Rykse reviewed the lease agreements with MX’s attorney. The agreements were treated as leases on the company’s books and for tax purposes.
By deposition, Cross testified that there was some discussion regarding transfer of ownership upon termination of the leases, but that MX was to pay the "fair market value” of the trailers. Cross never drafted the letter embodying these terms because MX "went bankrupt and returned all the trailers”.
MX went into bankruptcy in November, 1970. Plaintiff purchased a 15-month option to buy MX’s stock, and was a key figure in the bankruptcy proceedings. Plaintiff’s takeover of MX was subsequently approved by the bankruptcy court, and MX became plaintiff’s wholly-owned subsidiary.
Defendant had filed a claim in bankruptcy court and opposed the plan of arrangement approved by the court. On March 15, 1971, plaintiff and defendant executed an agreement "to dispose of all matters in contention between them” with respect to defendant’s claims against MX. Plaintiff promised "full and complete performance by MX” of the latter’s obligations under the lease agreements. The overdue monthly installments were to "be prorated and spread over the balance of the [lease] term * * * together with interest at the rate of 7-3/4% per annum from its due date”. On March 30, 1971, MX and defendant executed "lease amendments”, which reflected the increase in the monthly installments derived from proration of the overdue payments. The amendments provided that original leases would otherwise "continue in full force and effect as originally written”.
Ronald Lech, plaintiff’s executive vice-president, testified that he participated in the negotiations culminating in the March 15, 1971, agreement with defendant’s vice-president, Robert Jackson. According to Lech, it was agreed that MX would acquire the trailers for $10 each at the end of the lease period. Lech testified he indicated to Jackson his "understanding that this was [a] full payout lease”. Lech further testified that he agreed to a 7-3/4% interest rate "to apply [only] to all future payments”, not just those overdue. The trial judge ruled Lech’s testimony regarding the oral agreement inadmissible, concluding that a "full payout” term was inconsistent with the original leases and the March 15 agreement. On cross-examination, Lech admitted that after March, 1971, the transactions in question continued to be listed as lease payments in MX’s records and for tax purposes. The March 15 written agreement was reviewed by plaintiffs attorney and Lech signed the agreement.
Larry Mason, Lech’s administrative assistant, testified that he met with Hyatt Connor, defendant’s manager of equipment leasing, in March of 1973. According to Mason, Connor assured him that the trailers would belong to plaintiff for $10 each if plaintiff continued making the payments on the leases. Mason, an experienced buyer of new and used trucking equipment, had inspected the trailers. In his opinion, the trailers were worth $1,500 each in 1977 if purchased as a combined fleet. Individually, their value ranged from $1,200 to $2,200.
On May 12, 1977, Mason wrote a letter to Richard Cross, expressing his view that plaintiff would obtain title to the trailers upon making the final lease payment later that year. Cross referred the letter to Robert Jackson. Jackson testified that this was the first time he became aware of plaintiff s position, that he had never heard of the letter referred to by Cross, and that he had never discussed transferring the trailers to MX for a nominal sum. Jackson agreed with Cross that plaintiff could acquire the trailers only by paying their fair market value, and so informed plaintiff on May 20, 1977. Cross offered to sell the trailers for $2,950 each. Jackson characterized that figure as the "fair market value”. Cross denied he told Lech that plaintiff could buy the trailers for $10 per unit.
In August, 1977, defendant refused to accept plaintiffs final payment which included a tender of $10 for transfer of title to each trailer. Defendant informed plaintiff that if it did not wish to continue the leases, then it had the 30 days notice to return the equipment. When plaintiff did not return the trailers, defendant continued to bill plaintiff on a monthly basis. These rental charges amounted to $875,984.90 through September, 1981.
Hyatt Connor testified that he could not recall telling Mason that plaintiff could acquire the trailers for $10 each and he "would never make a statement like that”. Both Jackson and Connor testified that the interest rate on the original lease payments was 10-3/4%. The interest rate is not mentioned in the leases. However, Connor stated he had mistakenly applied the rate of 7-3/4% to all remaining payments when computing a "payoff’ at Jackson’s request. Connor characterized a "payoff’ as "what we need in order to break even” on a lease agreement. It was defendant’s practice to sell equipment at fair market value at the end of the lease term. Jackson agreed. In a pure lease agreement, the sum of the monthly payments would not include defendant’s residual value or principal balance. In contrast, plaintiff contended that it "would end up with having paid the market price, more than paid it” after seven years (i.e., that this was a "full pay out lease”). Plaintiffs attorney vigorously cross-examined Jackson concerning the November 2, 1972, letter he sent to Lech, which set forth the "payoff’ on two of the leased trailers which had been wrecked. The letter characterizes the sum of the installments as a "selling price”, and makes no reference to purchase at fair market value at the end of the lease. Jackson testified that the letter merely signified defendant’s willingness to acccept the amount indicated, and "had nothing to do with a lease pay-off or lease balance due”. Defendant had decided to give plaintiff "a break”.
Connor further testified that if the trailers had been returned in 1977, defendant could have leased them again. 1977 "was a pretty good year” for the used trailer market. Connor testified he was aware of the value of used trailers. Though another employee of defendant had appraised the trailers at issue, Connor had his own opinion, which was that they were worth $2,500 to $3,000 each.
Defendant’s accountant, Martin Welch, testified that if plaintiff had returned the trailers and defendant sold them for $2,950 each, defendant would have realized $457,500. Defendant could have used these funds to reduce its bank borrowing, thereby saving $175,400 in interest.
In his July 8, 1982, written opinion, the trial judge found that the three lease agreements were "pure leases”. He stated:
"Central and Fruehauf, the parties to the subject lease agreements were well seasoned businesses, who were represented by able and competent counsel. The parties intended the written agreements to constitute the complete, full, integrated and unambiguous agreements.
"Since the subject lease agreements were not ambiguous so as to permit extrinsic parol evidence to interpret or explain them, there was no evidence to sustain a finding that the subject lease agreements were actually conditional sale agreements which provided Central with an option to purchase the trailers, upon termination of the lease agreements.
"The evidence did not support a finding that Central’s retention of the subject trailers, after the lease agreements expired, established a contract, implied in fact or in law, to renew the subject leases. There was no meeting of the minds of the parties hereto by reason of words or conduct to extend or renew the subject leases.
"However, Central’s retention of the trailers, after the leases expired, without tendering to Fruehauf the demanded $2,950.00 per trailer, does constitute conversion. As a result of Central’s conversion, Fruehauf is entitled to damages.”
Plaintiff first contends that the trial court erred by excluding testimony of an alleged oral agreement to sell the trailers. Defendant argues that, since an option to purchase for a nominal sum is clearly inconsistent with the express terms of the written agreements, this evidence is prohibited by the parol evidence rule.
Where a contract is clear and unambiguous, parol evidence of negotiations cannot be admitted to vary the contract. Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 204; 220 NW2d 664 (1974). The parol evidence rule also bars admission of prior or contemporaneous agreements that contradict or vary the written contract. In re Bluestone Estate, 121 Mich App 659, 665; 329 NW2d 446 (1982). Prerequisite to application of the parol evidence rule is a finding that the parties intended the writing to be a complete expression of their agreement. Extrinsic evidence of prior or contemporaneous agreements or negotiations is admissible as it bears on this threshold question. NAG Enterprises, Inc v All State Industries, Inc, 407 Mich 407, 410; 285 NW2d 770 (1979).
In this case, the trial judge found that "the parties intended the written agreements to constitute the complete, full, integrated and unambiguous agreements”. Contrary to plaintiff’s argument, the judge did not rely entirely on the writings for this conclusion. Rather, he found that the testimony at trial indicated that the intent of the parties prior to entering into the lease agreements was consistent with the written agreements. He noted that the agreements were carried on MX’s books as "pure leases”; that they were reported as leases for tax purposes; that defendant never sent MX the letter concerning the option to purchase; that plaintiff and defendant "were well seasoned businesses, who were represented by able and competent counsel”; and that the total of the rental payments was, in his view, less than the "cost of the trailers leased”.
Testimony concerning the existence and terms of the alleged oral option to purchase directly conflicted. Essentially, the issue turned upon whom the court was to believe. Our review of the record does not leave us with a definite and firm conviction that the trial judge made a mistake. GCR 1963, 517.1; Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
Plaintiff next argues that the trial judge erred in his assessment of the fair market value of the trailers. The trial court found that the average value of the trailers was $2,500. Plaintiff claims this finding is not supported by the evidence. We disagree.
Plaintiff’s witness, Larry Mason, testified that the trailers were worth $1,500 each as a combined fleet. Hyatt Connor, defendant’s equipment leasing manager, opined that they were worth $2,500 to $3,000 each. Plaintiff argues that Connor relied on the opinion of another Fruehauf employee for his estimate. This view of the matter lacks merit. Although his opinion may have mirrored that of the other employee, Connor conveyed his personal opinion. Plaintiff does not dispute Connor’s qualifications to render an opinion on the value of the trailers. We cannot say that the trial judge clearly erred. His finding was within the range of the evidence.
On cross-appeal, defendant contends that the trial court erred when it refused to award damages for lost rental profits and interest paid on bank loans necessitated by the conversion. An injured party may recover incidental damages arising from a conversion. Oakland Nat’l Bank v Anderson, 81 Mich App 432, 438; 265 NW2d 362 (1978) ; 22 Mich Law & Practice, Trover and Conversion, § 15, p 512. The party asserting the claim has the burden of proving damages with reasonable certainty. S C Gray, Inc v Ford Motor Co, 92 Mich App 789, 801; 286 NW2d 34 (1979). Calculation of lost profits cannot be based solely on conjecture and speculation. Tempo, Inc v Rapid Electric Sales & Service, Inc, 132 Mich App 93, 103; 347 NW2d 728 (1984).
Here, the trial court correctly found that defendant did not carry its burden on this issue. Defendant submitted no proof of contracts which it was prevented from performing as a result of the conversion. Similarly, there was no proof of bank loans, or that defendant was forced to borrow at the prime rate because of the conversion. Moreover, damages for defendant’s interest losses on the funds borrowed would overlap with damages for interest from the date of conversion. Wronski v Sun Oil Co, 89 Mich App 11, 28; 279 NW2d 564 (1979) . Defendant failed to seek interest as an item of damages, but sought only statutory interest on the judgment, MCL 600.6013; MSA 27A.6013. Accordingly, we find no error in the trial court’s denial of lost profits which defendant claimed as damages for conversion.
The trial court awarded defendant attorney fees as an item of damages pursuant to the terms of the leases which state:
"Lessee agrees to pay all costs and expenses (including actual and reasonable attorney fees where recovery of same is not prohibited by law) incurred by Lessor in enforcing its rights with respect to the equipment or this lease.”
Plaintiff claims it was error for the court to award defendant attorney fees incurred after January 13, 1981, the mediation date. In support of this proposition, plaintiff cites WCCR 403.15(e) which states:
"When the board’s evaluaton [sic] is unanimous and both parties reject the board’s evaluation and the amount of the verdict, when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is within 10 percent above or below the board’s evaluation, each party is responsible for his own costs from the mediation date. If the verdict is in an amount which, when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is more than 10 percent above the board’s evaluation, the defendant shall be taxed actual costs. If the verdict is in an amount which when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is more than 10 percent below the board’s evaluation, the plaintiff shall be taxed actual costs.”
"Actual costs” are defined in WCCR 403.16:
"Actual costs include those costs and fees taxable in any civil action and, in addition, an attorney fee for each day of trial in circuit court, determined by the trial judge in accordance with the fee prevailing locally.”
Here, both parties rejected the unanimous media tion evaluation in defendant’s favor and the verdict was within 10 percent of the mediation evaluation. Thus, plaintiff argues, the court rule renders unenforceable the contractual agreement for the payment of attorney fees after the mediation date. We disagree.
Contractual provisions for payment of reasonable attorney fees are judicially enforceable. Mich Nat’l Leasing Corp v Cardillo, 103 Mich App 427, 436; 302 NW2d 888 (1981). Attorney fees awarded under contractual provisions are considered damages, not costs. Wilson Leasing Co v Seaway Pharmacal Corp, 53 Mich App 359, 367; 220 NW2d 83 (1974). Further, WCCR 403.16 defines "actual costs” to include only those "taxable in any civil action”, in addition to a per diem attorney fee for trial work. The court rule, on its face, does not foreclose a damages award of attorney fees from the mediation date.
On cross-appeal, defendant argues that it is entitled to "actual costs”, including a per diem attorney fee for the 11 days of trial. WCCR 403.15(e), 403.16. This claim lacks merit. Defendant is not entitled to attorney fees already paid as an item of damages.
Defendant also argues on cross-appeal that plaintiff’s appeal of this matter has caused defendant to incur added attorney fees and costs in enforcing its rights. Thus, defendant contends, the judgment should contain language which permits the addition of these damages if defendant prevails in this appeal.
Although the trial judge found the contractual provision for attorney fees valid, he held that he lacked authority "to tell the Court of Appeals” that additional attorney fees incurred by defendant on appeal would be awarded. Attorney fees awarded under the lease agreements are an item of damages arising from breach of those agreements. A contractual provision for reasonable attorney fees in enforcing provisions of the contract may validly include allowance for services rendered upon appeal. See Anno: Contractual provision for attorneys’ fees as including allowance for services rendered upon appellate review, 52 ALR2d 863. See GCR 1963, 822.2(f).
Defendant asks this Court to amend the judgment to reflect an entitlement to appellate attorney fees. GCR 1963, 820.1(7). The trial judge, however, made no factual findings as to whether the provision in the lease agreements encompassed appellate attorney fees. Accordingly, we remand for a determination of whether the attorney fee provision in the leases extends to appellate fees. GCR 1963, 517.1. If the court so finds, it also should determine the reasonable value of the services of defendant’s counsel on appeal. Statutory interest shall run only from such time as a reasonable appellate fee is fixed by the trial court.
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Per Curiam.
The people appeal as of right from the trial court’s order granting defendant’s pretrial motion to suppress evidence and dismissing the case.
A 36th District Court magistrate signed a warrant authorizing the search of a house at 15221 St. Marys in Detroit and a person known as "Pee Wee” on May 12, 1983. The police intended to search for heroin or other controlled substances. Detroit Police Officer William Jasper attested in the affidavit for the search warrant to the following fact:
"1. The affiant is a member of the Detroit Police Department working in conjunction with a Source of Information (SOI 996) that the affiant has used on Seven prior occasions resulting in the arrest of Seven people for Narcotic related offenses, all of which are pending in the 36th District Court.
"2. On May 11, 1983, the affiant met with SOI 996 and formulated plans to make a controlled purchase of Heroin from 15221 St. Marys. The affiant searched the SOI for money and/or narcotics with negative results. The affiant supplied the SOI with SS Funds to make the purchase of Heroin. The affiant observed as the SOI entered 15221 St. Marys and a short time later exit. The SOI then met with the affiant and handed the affiant an amount of suspected Heroin that the SOI stated was purchased from the above described person from within 15221 St. Marys. Again, the affiant searched the SOI with negative results._
"3. On May 11, 1983, the affiant conveyed the suspected Heroin purchased from 15221 St. Marys to the Narcotic Section where PO James Tanderys performed an analysis on the powder and found it to contain Heroin. The affiant then sealed the Heroin into LSF 183807.
"4. Wherefore the affiant has probable cause to believe that Heroin is being stored at and sold from 15221 St. Marys.”
When police officers executed the warrant on the same day, May 12, 1983, they saw defendant sitting near a table that had heroin and other drug paraphernalia on top of it. After arresting defendant, officers searched him at the 13th precinct police station and found additional heroin on him. The people charged defendant with two counts of possession of less than 50 grams of a controlled substance, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv). A magistrate bound over defendant to the Detroit Recorder’s Court for trial on May 20, 1983.
Defendant moved for an order to suppress all the evidence found as a result of executing the search warrant, arguing that the search warrant was defective. Defendant alleged that the police officer-affiant had not stated any information that could be considered indicia of the unknown informant’s reliability or credibility. See Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969).
Following arguments at the hearing on the motion, the trial court said:
"The motion to suppress is granted.
"I’m satisfied that the affidavit and search warrant on it’s face is clearly deficient under the authority of People versus David [119 Mich App 289; 326 NW2d 485 (1982)].
"If they had gone back on May 11th there’s nothing in this search warrant that would show that there might still be more contraband there that people would be willing to sell.
"If there had been representation not only to this single controlled buy, but that the SOI knew that this was an ongoing criminal enterprise that occurred before that date and that was ongoing and could be reliably made some time immediately after I think it would have been fine.”
We reverse because we find that the police officer-affiant’s information regarding the single controlled buy formed a sufficiently substantial basis for the magistrate’s finding of probable cause to search 15221 St. Marys on May 12, 1983. See People v Gleason, 122 Mich App 482, 490; 333 NW2d 85 (1983).
Despite the parties’ argument otherwise, the reliability or credibility of an unknown informant’s information is not at issue here. See Aguilar, supra, and Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). The only information offered in the affidavit as a basis to support the warrant is the controlled buy. The affiant participated in that controlled buy. Therefore, no hearsay is at issue.
In David, supra, p 295, upon which the trial court relied, this Court did state that a single controlled buy alone is not enough to establish probable cause to issue a search warrant. However, in David the single controlled buy occurred three days prior to the officer’s attempt to obtain the search warrant. This court found the information stale.
In People v Wares, 129 Mich App 136, 142; 341 NW2d 256 (1983), this Court said that, "[a] series of controlled buys establishes probable cause to believe that a continuing drug sale enterprise is being conducted, absent contrary circumstances (e.g., staleness, see David, 119 Mich App 295)”. In Wares, two controlled buys supported probable cause. In concurring specially in Wares, p 144, Judge R. M. Maher wrote:
"Even if we assume arguendo that the controlled buy-in David does not alone establish probable cause to believe that a purchase took place in the trailer, it did establish, I now believe, that the drugs were located in the trailer. To authorize a search warrant the affidavit need only establish probable cause to believe that the items sought are where they are alleged to be. Thus, I now hold that a description of a controlled buy in an affidavit is sufficient to establish probable cause for a search warrant unless circumstances indicate otherwise.” (Emphasis in original.)
We agree that the single controlled buy in this case sufficed to form probable cause to search 15221 St. Marys for additional heroin. There was probable cause to believe that there was heroin located in that house. Moreover, we find no staleness in this case. The controlled buy took place on May 11, 1983. The police officer went before the magistrate on May 12, 1983, and executed the warrant that day.
Reversed and remanded. | [
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C. W. Simon, J.
In this action, plaintiff sought a declaratory judgment as to responsibility for payment for medical care it provided to James Hodge. Hodge was shot by a private security guard as he attempted to commit an armed robbery within the jurisdiction of defendant' Wayne County. Hodge was arrested by officers of the police department of defendant City of Livonia and was transported to plaintiff’s hospital, where he received emergency treatment. Hodge was subsequently arraigned and charged with a violation of a state criminal statute. The circuit court granted motions for summary judgment by defendant city and by plaintiff, holding that defendant county was responsible for payment. Defendant county appeals as of right.
This case turns on the construction given to MCL 801.4; MSA 28.1724, which provided at the time of Hodge’s hospitalization:
"All charges and expenses of safe-keeping and maintaining convicts, and of persons charged with offenses, and committed for examination or trial, to the county jail, shall be paid from the county treasury; the accounts therefor being first settled and allowed by the board of supervisors.”
Changes in the language of the section were enacted by 1982 PA 16, but we do not regard those changes as relevant to the question of statutory construction presented here.
This statute reflects the general principle that counties are responsible for the costs of enforcement of state criminal laws. See People ex rel Mixer v Manistee County Bd of Supervisors, 26 Mich 422, 424 (1873), and People ex rel Grand Rapids v Kent County Bd of Supervisors, 40 Mich 481, 484 (1879). Where possible, statutes should receive a construction which avoids absurd results. See, for example, King v Director of Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977). The county argues for a construction of the statute under which it would only be responsible for medical expenses incurred after formal arraignment. We reject such a construction, because it would be inconsistent with the general principle previously stated, and because we can conceive of no rational basis for a rule which limits the responsibility of counties to costs incurred after formal arraignment and which leaves other local governmental units responsible for costs incurred before the prisoner was formally arraigned but after he was taken into custody. The requirement established by the statutory language "charged with an offense” is satisfied if formal charges are subsequently brought. See OAG 1947-1948, No 793, p 722 (June 30, 1948).
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Allen, P.J.
Is a physician liable to third persons injured as a result of the physician’s negligence in treating a patient who, as a result of his medical condition, causes an automobile accident involving the third persons? The question raised is one of first impression and comes to us on the following facts.
On March 6, 1977, plaintiffs were involved in an accident which occurred when their vehicle was struck by a vehicle driven by Michael Hubbard. Initially, suit was brought against Hubbard alone. After discovering that Hubbard had been a patient of Dr. Goldin at the time of the collision, plaintiffs filed an amended complaint alleging that defendant Goldin knew or should have known that his patient Hubbard had had previous epileptic seizures and that Goldin had "a duty to persons operating motor vehicles on the public highway and in particular, the plaintiffs, to properly care for and treat” defendant Hubbard. The complaint alleged, inter alia, that Goldin had breached that duty by failing to prescribe or continue Hubbard on anti-epileptic medication and in failing to instruct him not to operate a motor vehicle after removing him from the anti-epileptic medication. Defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1) was denied initially, but upon rehearing was granted. The trial court determined as a matter of law that defendant owed no duty to the plaintiffs.
It is well settled that a motion based on subsection (1) tests the legal sufficiency of the claim and is to be evaluated by reference to the pleadings alone. Romeo v Van Otterloo, 117 Mich App 333; 323 NW2d 693 (1982); 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1984 Supp, p 149. For purposes of the motion, all wellpled allegations are accepted as true together with any inferences or conclusions which may fairly be drawn from the facts alleged. Fidelity & Deposit Co of Maryland v Newman, 109 Mich 620; 311 NW2d 821 (1981); Partrich v Muscat, 84 Mich App 724; 270 NW2d 506 (1978). Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right of recovery, the motion should be denied. Crowther v Ross Chemical & Mfg Co, 42 Mich App 426; 202 NW2d 577 (1972). It must be remembered that this motion tests the legal, and not the factual, adequacy of the claim and, therefore, the court must not resolve factual disputes or consider the ability of the parties to prove their claims. Abel v Eli Lilly & Co, 418 Mich 311; 343 NW2d 164 (1984).
It is equally well settled that in a negligence action the threshold question of duty is an issue of law for the court’s resolution. Prosser, Torts (4th ed), § 53, p 324; Elbert v Saginaw, 363 Mich 463; 109 NW2d 879 (1961). A duty arises from the relationship of the parties and involves a determination of whether the defendant has any obligation to avoid negligent conduct for the benefit of the plaintiff. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977).
In Prosser’s terms, the question is "whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other”. Prosser, supra, § 37, p 206. It is apparent that resolution of the "duty” issue determines the existence and not the nature or extent of the actor’s obligation. Although somewhat interrelated, those latter concepts are more properly considered in the evaluation of the actor’s conduct in relation to the general and specific standards of care. See, Moning, supra. Here, we must focus on the issue of duty, for without a legal duty there is no actionable negligence. Or, stated another way, without duty, an individual will not be held liable for his negligent conduct.
Defendant claims that, regardless of how it is labeled, plaintiffs’ claim clearly is based upon an allegation of medical malpractice. Relying on Rogers v Horvath, 65 Mich App 644; 237 NW2d 595 (1975), defendant argues that in the absence of a doctor-patient relationship there is no duty and such an action will not lie. We find, as did the trial judge, that plaintiffs’ action is not founded upon medical malpractice. Moreover, we note that although it is undisputed that plaintiffs and defendant do not stand in a physician-patient relationship, neither is it disputed that defendant and Hubbard do have such a relationship. Defendant’s argument fails to address the question of whether a duty, or obligation to act with due care, may arise out of the alternative, yet equally viable, relationship between defendant and Hubbard.
In our effort to resolve the question of whether the defendant doctor owed a duty of care to these third-party plaintiffs, we are guided by decisions of the courts of this state and decisions from other jurisdictions which have considered the issue of liability to a third party. Courts in Michigan have recognized under a variety of factual circumstances that a third party may have a claim grounded in negligence against a defendant based upon the defendant’s relationship with another party. See, e.g., Moning, supra, (manufacturer, wholesaler and retailer of manufactured product owe a legal obligation of due care to a bystander affected by the use of the product); Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967) (general contractor owed a duty in general not to endanger employees of the sub-contractor or inspectors or anyone else lawfully on the project site); Davis v Lhim, 124 Mich App 291; 335 NW2d 481 (1983) (psychiatrist owes a duty of reasonable care to persons who are readily identifiable as foreseeably endangered by his patient); Romeo, supra, (employer may owe duty to third party to supervise the activity of his employee). Contra, see, Friedman v Dozorc, 412 Mich 1; 312 NW2d 585 (1981) (attorney owes no duty of care to an adverse party in litigation).
In arriving at a determination that the particular defendant either did or did not have a duty to conduct himself in such a manner as to avoid negligent conduct toward the third-party plaintiffs, the Courts in the above-cited cases weighed the policy considerations for and against the recognition of the asserted duty. An additional factor considered in the assessment was the foreseeability that the actor’s conduct would create a risk of harm to the victim. It is apparent that duty is a flexible and changing concept, one which is not "sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection”. Prosser, supra, §53, pp 325-326.
At the outset, we point out that although defendant Goldin is a psychiatrist, this case is not factually identical to the situations presented in Davis, supra, or Tarasoff v Regents of University of California, 17 Cal 3d 425; 131 Cal Rptr 14; 551 P2d 334 (1976). Those cases may be distinguished from the present case by noting that in those cases the danger to the third party arose out of the violent or assaultive conduct of the patient and stemmed from the patient’s underlying psychiatric problem. Each case involved a confidential doctor-patient communication and involved a threat of violence to a foreseeable and identifiable third party. Plaintiffs in both cases argued that the defendant doctors owed them a duty of due care which had been breached by the defendants’ failure to warn or protect the third party from the danger posed by the patient.
The Courts in Davis and Tarasoff found that each defendant (psychiatrist/therapist) had a le gaily cognizable duty to the third parties, based on their relationships with their patients, to warn the third parties that the patient posed a threat of violence to the third parties. Although Tarasoff itself did not emphasize or expressly limit the scope of duty to only those identifiable victims, Davis clearly limited the class of persons to whom the psychiatrist owed a duty of due care. Not all those individuals who might foreseeably be injured were encompassed within the range of the duty, instead it was limited to "those persons readily identifiable as foreseeably endangered”. Davis, supra, p 303.
In his opinion in this case, Circuit Judge Daner interpreted Davis as being limited to psychiatric cases in which the psychiatrist had a "special relationship” to his patient and concluded that the present case was not one in which the defendant doctor had taken charge of another who had known propensities for danger. To the extent that the trial court placed a narrow and restrictive interpretation on "special relationship” (i.e., requiring that the physician take charge of a patient with known propensities for danger), we find error. While Davis was factually limited to such a situation, we do not read that case as precluding the recognition of a special relationship and, therefore, the imposition of a duty in a somewhat broader context. It is not disputed that defendant and Hubbard had a doctor-patient/psychiatrist-patient relationship or that defendant was engaged in the treatment of Hubbard at the time of this accident. Thus, contrary to the trial court, we find that defendant did in fact have a special relationship with his patient, the so-called "dangerous person”, which we believe is sufficient to place this case within the exception to the common-law rule that no one has a duty to protect an individual who is endangered by the conduct of another. Where the actor stands in a special relationship with either the third-party victim or the person causing the injury, a duty of reasonable care may arise. See, 2 Restatement Torts, 2d, § 315, p 122; Davis, supra, p 299; Tarasoff, supra.
Once the existence of a relationship has been established, we then turn to the question of whether if was foreseeable that the actor’s conduct might create a risk of harm to the victim. Moning, supra. In recognition of the fact that this case is distinguishable from cases involving a psychiatrist’s duty to warn a third party of the dangerous propensities of his patient, plaintiff has cited cases involving the physician’s duty of care to third parties arising out of the diagnosis of disease or the prescription of medication which may impact or alter the patient’s behavior and in turn endanger third parties. Gooden v Tips, 651 SW2d 364 (Tex App, 1983); Kaiser v Suburban Transportion System, 65 Wash 2d 461; 398 P2d 14; 401 P2d 350 (1965). Without elaboration of the facts of each case, we point out that in both Gooden and Kaiser the doctor prescribed a medication to his patient without informing the patient of the side effects of the drug or warning him not to drive. The patients thereafter were involved in automobile accidents with third parties. In both cases, the courts found that the third parties had a cause of action against the physician for negligence and found that the harm, injury to third parties as a result of the patient’s impaired driving ability, was reasonably foreseeable to the doctor at the time he prescribed the drug. The Gooden court stated that "under proper facts, a physician can owe a duty to use reasonable care to protect the driving public where the physician’s negligence in diagnosis or treat ment of his patient contributes to plaintiff’s injuries”. Id., p 369.
Given the nature of the condition involved in the present case, epileptic seizures, and assuming as we must the truth of plaintiffs’ allegations, we are of the opinion that it is foreseeable that a doctor’s failure to diagnose or properly treat an epileptic condition may create a risk of harm to a third party. By statute, restrictions and limitations may be placed upon individuals seeking drivers’ licenses because of a physical disability or disease which prevents that person from exercising reasonable control over his vehicle. MCL 257.303; MSA 9.2003. Here, one of the alleged breaches of duty involves the defendant’s failure to inform his patient not to operate a motor vehicle. The likelihood of injury to a third party due to an automobile accident arising from that breach is not so rare or unusual an occurrence as to be considered unforeseeable. Accordingly, we find that the trial court erred in granting summary judgment. Whether the proximate cause of the accident was defendant’s negligence is a question of fact for the jury.
However, our decision in this regard is limited to the narrow facts set forth in this case. We decline to find a duty in every instance involving a physician, his patient and an unidentifiable third party. We do not intend to make physicians highway accident insurers. Further, even though defendant may have failed to instruct Hubbard not to drive, Hubbard, too, may have been negligent in resuming driving without the express consent of his physician, or in otherwise failing to recognize the danger of driving without medication. This too is a question for the jury.
Reversed. Costs to appellants.
Wahls, J., concurred.
Michael Hubbard is not party to this appeal, and all references to defendant relate to Morris Goldin, M.D. | [
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Per Curiam.
Third-party plaintiff Chambersburg Engineering Company appeals as of right from the trial court’s order granting summary judgment in favor of third-party defendant Huron Forge & Machine Company under GCR 1963, 117.2(3). Huron Forge cross-appeals from the trial court’s rejection of two alternate grounds for its motion for summary judgment.
On September 8, 1978, plaintiff, an employee of Huron Forge, was injured when a 3,000-pound forging hammer dropped onto his hand. Plaintiff filed this action against Chambersburg alleging negligence in the design and manufacture of the hammer and breach of express and implied warranties in that Chambersburg allegedly failed to provide a safety device sufficient to prevent the hammer from inadvertently falling onto the anvil. Chambersburg sold the hammer to Huron Forge in 1946, at which time the safety device in question had not been designed. Chambersburg apparently began selling new hammers equipped with safety wedges in 1968.
Chambersburg filed a third-party complaint against Huron Forge seeking indemnification under a theory of implied contractual indemnity. Chambersburg’s amended complaint alleged that an implied contract of indemnity arose because Huron Forge expressly represented to Chambers-burg that it would equip its forging hammers with safety wedges and because Huron Forge accepted blueprints for the recommended safety equipment in lieu of purchasing the wedges from Chambers-burg.
Huron Forge moved for summary judgment pursuant to GCR 1963, 117.2(1) and (3). The trial court declined to rule on the motion under subrule (1), and denied the motion under subrule (3) on the basis of an affidavit submitted by Russell Hartner, an employee of a Chambersburg distributor, which averred that "there was an express representation by one or more employees of Huron Forge and Machine Company that Huron would fabricate the necessary safety wedges and perform the machining on the ram guides, rather than purchasing the ram safety wedges from the machine manufacturer, if necessary, Chambersburg Engineering Company”. The motion was denied without prejudice in order to allow Huron Forge to depose Mr. Hartner.
Subsequent to the taking of Mr. Hartner’s depo sition, Huron Forge renewed its motion for summary judgment. Following a hearing, the trial court concluded that an express undertaking by Huron Forge to equip the hammer with safety wedges was a necessary requirement of Chambers-burg’s implied contractual indemnity claim and that Chambersburg had presented no evidentiary support for its claim of an express undertaking. The trial court rejected two other grounds advanced by Huron Forge, which are the subject of Huron Forge’s cross-appeal.
Chambersburg’s appeal
The trial court made clear that Huron Forge’s motion was granted under GCR 1963, 117.2(3) only. A motion based on subrule (3) is designed to test whether there is factual support for a claim. Partrich v Muscat, 84 Mich App 724, 730; 270 NW2d 506 (1978). In passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Before the judgment may properly be granted the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. The trial court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist. Partrich v Muscat, supra.
Three possible sources of a right to indemnity have been recognized in Michigan: the common law, an implied contract, and an express contract. Skinner v D-M-E Corp, 124 Mich App 580, 584; 335 NW2d 90 (1983). This case involves the second type, an implied contract of indemnity. This theory requires two bases for a cause of action. The manufacturer must prove a specific undertaking by the employer to perform some act or service for the manufacturer and an attempt by the employee of the employer to hold the manufacturer liable for the failure to perform the act which the employer had obligated itself to do. Cutter v Massey-Ferguson, Inc, 114 Mich App 28, 35; 318 NW2d 554 (1982); Bullock v Black & Decker, Inc, 502 F Supp 580 (ED Mich, 1980). A right to indemnity under a theory of implied contract may arise only from the conduct of the parties or from their special relationship. Skinner, supra, p 586.
At the hearing on Huron Forge’s motion following the taking of Mr. Hartner’s deposition, the trial court concluded that Chambersburg had failed to provide factual support for a finding that Huron Forge expressly undertook to equip the hammer with safety wedges. We find this decision to be clearly erroneous. The amended third-party complaint and Mr. Hartner’s affidavit aver such an express representation by Huron Forge. Although Mr. Hartner’s subsequent deposition is somewhat internally inconsistent and is subject to differing interpretations, we find that a genuine factual issue exists as to whether Huron Forge expressed an intent to undertake an act or service for the manufacturer regarding the safety device. Summary judgment was improperly granted under subrule 117.2(3).
Huron Forge’s cross-appeal
Huron Forge asserts in its cross-appeal that the trial court erred in rejecting two alternative theories for summary judgment. Huron Forge first contends that it was entitled to summary judgment because the principal complaint alleged active negligence on the part of Chambersburg. It argues that the allegation of active negligence in the principal complaint bars a finding of an implied contract of indemnity.
It is true that indemnification under a theory of implied agreement is not available to a party who is proven to be actively negligent in causing the plaintiffs injury. Skinner, supra, p 585. This does not mean, however, that a third-party defendant is entitled to summary judgment merely because one of the allegations in the principal plaintiffs complaint alleges active negligence against the third-party plaintiff. Of course, if Chambersburg is ultimately held liable for plaintiff’s injury due to its negligent design and manufacture of the hammer, no right of indemnification would arise since Chambersburg would have been found to be actively negligent. However, the principal plaintiffs complaint also alleges that Chambersburg breached certain express and implied warranties. If Chambersburg is found liable on these grounds, rather than on the basis of active negligence, indemnification under an implied contract theory would be available. The trial court correctly found that this was not a proper matter for summary judgment. See Skinner, supra,.p 589.
Huron Forge also contends that the implied contractual indemnity theory was unavailable since the express undertaking alleged by Chambersburg did not occur until several years after the sale of the forging hammer. Huron Forge argues that the representation must occur contemporaneously with the sale of the product in order to establish liability under this theory. Huron Forge has presented no applicable authority or convincing rationale for such an approach. We believe such a broad rule would contradict the policies supporting the implied contractual indem nity theory. If an employer, subsequent to its purchase of a machine, clearly represents to the manufacturer that it will provide its own safety device instead of the one the manufacturer designed subsequent to the manufacture and purchase of the machine, the employer should not be relieved of responsibility merely because the representation occurred subsequent to the purchase of the machine. We find that the trial court properly rejected Huron Forge’s alternative arguments for summary judgment.
Reversed and remanded for trial. | [
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Per Curiam.
The trial court granted summary judgment in favor of plaintiffs and against garnishee-defendant Nationwide Insurance Company on the ground that there was no genuine issue of material fact. GCR 1963, 117.2(3). Garnishee-defendant appeals as of right.
Kim Roberts, while living in Robert Roberts’s household, participated in the commission of a robbery. During the course of this robbery, Howard R. Havens was shot.
The plaintiffs then brought a negligence action against Defendants Robert and Kim Roberts. Nationwide hired counsel to defend both Robertses, but reserved the right to deny coverage. Plaintiffs obtained a judgment against Kim Roberts.
Howard and Vonnie Havens then proceeded to garnish defendant Nationwide Insurance Company contending that Nationwide had an obligation to satisfy the judgment pursuant to a homeowner’s policy issued to Robert Roberts. That policy excluded coverage for bodily injury "caused intentionally by or at the direction of an Insured”. Kim Roberts was insured under the policy.
We first consider whether the previous judgment against Kim Roberts based on negligence precludes the insurance company from asserting a defense based on the policy’s intentional act exclusion. The doctrine of res judicata bars a cause of action if: (1) the prior action was decided on the merits; (2) the issue raised in the second case was raised in the first; and (3) both actions involve the same parties or their privies. San Joaquin County, California v Dewey, 105 Mich App 122, 130-131; 306 NW2d 418 (1981).
We feel that it would be improper to apply the doctrine of res judicata to this case. The parties are not the same. It was in Kim Roberts’s best interest to have any judgment against her based upon negligence so that the exclusion would not apply and Nationwide, rather than herself, would have to pay. Her lawyer, although hired by Nationwide to represent her, was ethically bound to represent her best interests. Nationwide is now entitled to argue that the exclusion is applicable. In American Surety Co of New York v Coblentz, 381 F2d 185 (CA 5, 1967), the Court of Appeals for the Fifth Circuit considered facts very similar to those in the instant case. The Court stated:
"The court below, by its judgment, concluded that the state court 'finding’ that the fatal shooting was due to the insured’s 'negligence’ and was therefore an 'accident’ within the terms of the policy was binding upon appellant and could not be attacked in garnishment proceedings. Appellant merely asks that it be given the opportunity to raise this issue as a defense to garnishment. Both our sense of justice and the case law convinces us that appellant may not properly be precluded from raising this issue and that the summary judgment rendered below must be reversed.” 381 F2d 187.
We note that the general rule is that the garnishee defendant is generally barred from challenging the validity of the judgment entered in the original action. Morrill v Gallagher, 370 Mich 578, 586-587; 122 NW2d 687 (1963). An insurer may, however, raise an exclusionary clause as a defense if that issue has been preserved. Morrill, supra. In the instant case, Nationwide agreed to defend the original action while specifically reserving the right to contest coverage. Nationwide may now properly contest coverage.
We next consider whether the trial court erred in finding that there was no genuine issue of material fact. Garnishee-defendant argues that there was an issue of material fact, claiming that one of Kim Roberts’s accomplices in the robbery stated that Ms. Roberts directed the accomplice to shoot Mr. Havens. Apparently the accomplice gave this statement to his probation officer. Probation officers’ reports are absolutely privileged and can not be a subject of discovery. MCL 791.229; MSA 28.2299. Nationwide’s allegation,, however, raises factual questions which make the grant of summary judgment improper. This case should, therefore, be reversed and remanded for further proceedings. On remand, Nationwide should be given the opportunity to present admissible evidence to support its allegation. The trial court may continue to properly exercise its discretion in limiting discovery. We note that on appeal Nationwide continues to argue that it should be given the opportunity to review the probation officer’s files. This report is absolutely privileged and cannot be a subject of discovery. As stated in the statute, this confidence "shall remain inviolate”. MCL 791.229; MSA 28.2299.
Reversed and remanded for proceedings consistent with this opinion. | [
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Per Curiam.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary disposition in this wrongful discharge case. We affirm.
Plaintiff, Tricia Seabrook, was hired by Michigan National Bank (mnb) in 1978. In 1986, she became a senior sales representative in the cash management division, and in 1987 she was appointed second vice president of mnb. Her job responsibilities included selling a bank service to other companies.
In July 1988, plaintiff resigned from her position with mnb. On September 28, 1989, she filed suit against mnb for wrongful discharge and negligent evaluation. The action was dismissed with prejudice. On October 19, 1990, plaintiff filed a second wrongful discharge suit against mnb, which was also dismissed. On March 15, 1991, plaintiff filed the instant action against defendant, Michigan National Corporation (mnc), alleging violations of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., civil conspiracy, invasion of privacy, tortious interference with a business relationship, and breach of an implied contract.
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), asserting that plaintiffs employer was mnb and, therefore, that she had no claims against defendant mnc. The court granted the motion. This appeal followed.
The only issue properly before this Court is whether the trial court erred in determining that there was no genuine issue of material fact with respect to whether defendant was plaintiff’s employer. In reviewing a grant of summary disposition, we must give the benefit of reasonable doubt to the nonmovant and determine independently whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991).
It is not disputed that defendant is a bank holding company that is regulated by Federal Reserve Regulation Y. 12 CFR 225.1 et seq. That regulation permits a holding company to perform certain personnel and accounting services for its subsidiaries, but prohibits it from acting as a principal in dealing with third parties. In other words, defendant cannot enter into contracts with third parties to benefit mnb.
In this case, plaintiff was clearly acting as an agent for mnb in dealing with third parties. If plaintiff was an employee of defendant, she would have been prohibited by Regulation Y from entering into contracts with third parties. Thus, as a matter of law, plaintiff must have been an employee of mnb and not of mnc.
The factual evidence also overwhelmingly supports the conclusion that plaintiff was an employee of mnb and not an employee of defendant mnc. Plaintiff initially filed suit against mnb, alleging it was her employer. Her letterhead and business card indicated that she worked for the cash management division of mnb. Mnc was named on plaintiff’s pay stubs and W-2 forms merely in its capacity as paying agent for mnb. This case is thus distinguishable from Ambro v American Nat’l Bank & Trust Co of Mich, 152 Mich App 613; 394 NW2d 46 (1986), where there was a genuine issue of fact concerning whether the plaintiff was an employee of the holding company. Id. at 621.
Giving the benefit of reasonable doubt to plaintiff, there is no foundation for her asserting this claim against defendant, and summary disposition was properly granted.
Affirmed. | [
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