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Montgomery, J.
Complainant, as one of the legatees named in the will of Horace M. Dean, filed this bill against the defendants Mumford and Frank Dean, executors, and the codefendants as legatees, asking a construction of the terms of the will, if held valid, and asserting that it is as a whole invalid, in equity.
A preliminary question is raised as to the jurisdiction, it being claimed by defendants that, except at the suit of a trustee or cestui que trust who asks a direction as to the execution of a trust, a court of chancery has no jurisdiction to construe a will or declare any or all of its provisions invalid. But, however this may be, the executors have answered in this case, and in terms submitted the question of the construction of the will to the court. As it is undoubted that they might have invoked the jurisdiction of the court for that purpose by a bill, we think that, they having submitted the question, the court may properly maintain jurisdiction. Sawtelle v. Ripley, 85 Wis. 72.
The material parts of the will are as follows:
“ First. I give and bequeath to my beloved wife, Mary C. Dean, the use of the homestead now occupied by us, No. 83 State street, together with all the furniture and other personal property thereon and connected therewith, to be used and enjoyed by her during her natural life as a home for herself, and for such of my children as shall remain unmarried, and shall be agreeable to her; the taxes and repairs upon said homestead to be paid by my executors from my estate.
“Second. I also give and bequeath to my said wife the sum of 11,500 per annum, to be paid to her quarterly or monthly by my executors, as she may desire; to be received, used, and enjoyed by her during her natural life.
“ Third. All the rest, residue, and remainder of all the goods, chattels, real and personal estate, of whatsoever kind or nature, or wheresoever the same may be situated, I desire to be divided equally between my five children,— Edgar S., aged 38; Arch. H, aged 30; Herbert L., aged 28; Frank, aged 26; and Lizzie, aged 23, — or to the survivors of them, excepting in case any of them shall die leaving child or children surviving; then, in such case, the respective interests of my sons and daughter above named shall go to and belong to the child or children surviving them, respectively.
“Fourth. Whereas, I have advanced to my sons Edgar S. and Arch. H. certain sums of money, which will appear charged to them upon my books, and if I shall advance to them, or either of them, or others of my children, during my lifetime, other sums, all such sums in money or property which I shall advance to or pay for and shall charge to them, respectively, shall be deducted from the respective portions above designated to go to my said children.
“Fifth. I hereby will and direct that the portions hereinbefore designated for my.said sons Edgar S., Arch. H., and Herbert L. be held in trust by my executors, as trustees for my said sons, their wives and children, and the interest, income, and profit thereof be used and paid as in the judgment of my said .executors shall be best for the support and maintenance of my said -three sons, their wives and children, during the lives of my said sons and their wives; and, upon the decease of said sons and their wives, the portion so held in trust by my said executors shall become the property of and go to the child or children of said sons, severally, and their heirs and assigns, forever.”
It is the contention of complainant — "First, that the first and second clauses make the taxes and repairs and annuity a charge upon the estate, and create a trust in favor of the widow, which continues during her life; and, second, that, if this be not so held, then, under any construction which may be given to the fifth clause, the power of alienation is suspended for a longer period than during two lives in being, and that for this reason the trust created in the fifth clause falls.
The defendants contend — First, that inasmuch as the .widow has elected to take under the statute, and not under the will, the validity or non-validity of the will should be determined without reference to the attempted provision for her; second, that the power of alienation was not, by the terms of the will, suspended during the life of the widow; and, third, that by the proper construction of the fifth clause, in connection with the third and fourth clauses, of the will, the power of alienation is not suspended, as to any portion of the estate which vested after the death of the widow, for a longer period than two lives in being.
We think, if the power of alienation was not suspended during the life of the widow, the case presents no very serious difficulty. It appears to be conceded by counsel who seek to maintain the validity of the will and its provisions that the fifth clause restrains alienation for the period of two lives' in being. The construction of the will for which they contend is that, under the provisions of the third clause, the estate is to be divided into five equal shares; that two of the shares — those devised to Frank and Lizzie — Test át once; that, by the terms of the fourth clause, certain advancements are to be taken out of the shares of Edgar S. and Arch. H., and the remainder is, in each instance, under the fifth clause, as in the case of the one-fifth interest of Herbert L., to be held in trust by the executors for the respective legatees named, their wives and children; and that, upon the decease of Edgar S. and his wife, Eliza, the one-fifth, less the deducted advancements, becomes the property of their children; and so in the case of Arch. H. and Herbert L. We think this contention is sound, so far as it relates to the third and fifth clauses, if it be held that there was no restraint on alienation during the life of the widow. It was very plainly the purpose of the testator to divide his estate into' five equal parts, and we think it very clear that it was not the intention to provide by the fifth clause that the three parts which had been set apart by the third clause of the will to Edgar S., Arch. H., and Herbert L. should be held in trust for the common use of the sons, their wives and children. But it is suggested that, in this view,as Herbert L. was unmarried at the time the will took effect, the will should be construed to relate to any wife whom he might in the future marry, and, so construed, the estate would not vest in the children or heirs until after the expiration of two lives in being. We think the will not open to this construction, but that it was intended to mean any wife of Herbert L. living at the time of the decease of the testator. Van Brunt v. Van Brunt, 111 N. Y. 178. The will should not be given a construction, for the purpose of defeating the intention of the testator, which would bring within its purview one who should in the future become the wife of one of the legatees.
The important question, then, as it appears to be conceded, is whether' the power of alienation was suspended during the life of the widow. If the contention of defend ants5 counsel,- that the election of the widow to take under the statute calls for a construction of the will as it would have read without any attempt- to make provision for her, be allowed, this, with what we have above determined, would be an end of the case. A statement is found in the case of Bailey v. Bailey, 97 N. Y. 471, sustaining the contention of defendants5 counsel. But in that case it had been determined in the opinion that the bequest to the widow was of a life estate in the property, which she had the right to sell if she chose; so that the statement affirming ' the- doctrine here' contended for was dictum. We cannot-accept this as a correct statement of the law. The will must, it seems to us, be construed as made. It will not do to say that "provisions which are incorporated in a -will, and which are- not valid when made and when the will takes effect, can thereafter be made valid by the election-of the -widow.- This would, in effect, empower the widow to execute a will by validating what was previously no will.' Counsel also cite, as sustaining this contention, 'Woodburn’s- Estate, 151 Penn. St. 586; Small v. Marburg, 77 Md. 11; and Tracy v. Murray, 44 Mich. 109. In the cases of Woodburn’s Estate and Small v. Marburg the question before the -court related to the effect of the election of the widow to take under the statute upon the distribution to- be made of sthe estate. Neither case deals with the question of whether the widow can, by declining to take under the will, make that valid which was before invalid, nor was any such question before the court. In Tracy v. Murray the widow renounced her right to take under the statute, and elected to take under the will. The Court say:
“Accepting as correct the doctrine of those cases which' hold that the widow becomes a purchaser of the legacy by releasing her dower, the contract is not a completed one until her .acceptance of the provisions of the will after her husband’s decease.. Had he purchased, from his wife .her dower,- and given her his note therefor, upon his death such obligation, if not, paid, would simply’become a claim against his estate, and take its place, when proven against the estate, with the other allowed claims. The husband during his lifetime, wishing to make arrangements to have his wife release her dower interest in the lands of which he should die seised, makes an offer therefor which is not to be submitted to her for acceptance until after' his decease.”
This case, it will be seen, presented .no question of validating invalid provisions :of the will, 'but dealt with the rights of the widow as they existed under the will as made by the. deceased; and the case, certainly contains no intimation which sustains the contention here made. .
Were these taxes .and annuity a charge upon the estate in such a sense as to create a trust, and suspend the power of alienation? It is settled .that no express words creating a trust are requisite,. if the intent. to devote .the estate to a particular purpose .is apparent from the terms of the will. . Where a duty is imposed upon’ the executor which makes it necessary for him to .retain the possession and control of realty, he will take an intérest adequate to enable him to perform, this' duty; .and an alienation which cuts off that fight is, by implication, prohibited. Perry, Trusts, §§ 121, 313, and cases cited; Cummings v. Corey, 58 Mich. 494; Vail v. Vail, 7 Barb. 226. And' where there is a provision in the will .'that certain .debts, legacies, and charges are to be paid, and the residue .of the estate not thus expended is then to be divided, the particular debts, legacies, and charges will be considered a charge against the estate, real and personal. See a discussion of this rule in 2 Jarm." Wills, p. *1,411 et seq.; Greville v. Browne, 7 H. L. Cas. 689; Gainsford v. Dunn, L. R. 17 Eq. 405; Lafferty v. Bank, 76 Mich. 35. It will be noticed in the present case that the will, after bequeathing the use of the homestead, makes the taxes and repairs upon the homestead payable from the estate of the testator. It also provides for an annuity of $1,500 per annum, to be paid by the executors during the natural life of the widow, and then bequeaths all the rest, residue, and remainder of all the goods, chattels, real and personal estate, to the five children named. We think the intention is clearly manifested to make the entire estate, real and personal, subject to these charges, and the executors may devote the income of the estate, both real and personal, to that purpose, and are required to do so if necessity therefor exists. This attempted restraint on alienation must be held void.
The question is raised as to whether the will is void in toto. We think not. Certain duties are imposed upon the executors which might, notwithstanding the failure of the limitation in the fifth clause, be performed, and the provision charging against the shares of Edgar S. and Ar.ch. H. the amount of certain advancements should be sustained.
As the widow has elected to take under the statute, it is not material to determine whether, upon the failure of the limitation in the fifth clause, the children would take an absolute fee under .the third clause, as their interest would be the same whether they take as heirs at law or by the terms of the will.
A decree will be entered in accordance with these views. The costs will be paid out of the estate.
The other Justices concurred. | [
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Hooker, J.
Prior to the year 1880, defendant William B. Pellett was the owner of a sash and blind factory, in which he carried on business in the city of Flint. In January, 1881, his brother, John J. Pellett, engaged with him in the business, putting in additional capital, and receiving from William B. Pellett a deed of an undivided one-half of the real estate. In 1887 these parties arranged with the complainant, Childs, to become a member of the-firm. He was to put in $5,000 in cash against the property of the firm then known as William B. Pellett & Co., the new firm to assume outstanding obligations, which included a debt of the firm to John J. Pellett of $3,500, and did not include a debt of $1,000, which the firm owed one Archie Brown. This debt had been secured by a real-estate mortgage upon the factory, but it was discharged by Archie Brown, so that the Pelletts could give-to complainant a clear title to the undivided one-third of the-real estate. This deed was given, and the complainant put into the concern $5,000 in cash. Of this sum $2,500-was borrowed of the First National Bank of Flint, one-of the defendants, upon the note of C9mplainant, which note, or a note given in renewal of the same, had upon it the name of the new firm, Pellett Bros. & Co., placed there unwarrantably by complainant, without the consent, or knowledge of the Pelletts, and upon notes given in renewal, against their protest. This obligation is outstanding. The firm of Pellett Bros. & Co. obtained credit at the First National Bank, taking up outstanding obligations, excepi $3,000 of the $3,500 owing to John J. Pellett, with money borrowed at the bank.
On July 15, 1890, John J. Pellett went out of the concern, under an arrangement with his partners substantially as follows: John sold to his brother, William, his one-third interest in the business, and agreed to sell him his one-third interest in the real estate when he should pay him $2,000 in addition to the sum paid down. William B. Pellett was to have a two-thirds and complainant a third interest in the new firm, which was to be known as the Pellett Table Company. The new firm gave its note for $3,000 to John J. Pellett for the amount due him from the firm. The notes'of the new firm were given to the bank in* renewal of notes o'f the' old firm as they fell due. Complainant claims that the indebtedness to the bank was not increased, and it so appears. The business did not prosper, and an agreement was made between the Pellett Table Company, the bank, and one La Due, parties of the first, second, and third parts, respectively, dated December 26, 1890, which provided that on account of the company taking La Due as foreman and manager, the bank should pay for such lumber as the company should have delivered at its yard, the same not to exceed 500,000-feet at one time, the title to remain in the bank, and should sell the same to the company on weekly payments» It was also agreed that the company might deliver to the bank its manufactured tables, at a price and in lots mentioned. The sum received in excess of this price and expenses of sale was to be applied on the indebtedness to the.bank. This agreement was to be in force during the year 1891. La Due entered upon the discharge of his duties under the contract, but William B. Pellett became dissatisfied, and on July 7, 1891, he mortgaged the one- third interest in the real estate which stood in his name to his brother, John, to secure the sum of $8,000 which the firm owed John, and on the 18th of August he joined with John in a mortgage of $1,175 to Archie Brown, upon his claim against them, which was still unpaid. On September 8, 1891, the complainant executed, in the name of the firm, a chattel mortgage to the bank, covering all of the personal property of the firm, for the sum of $9,182.33.
At the expiration of the La Due contract the complainant filed the bill in this cause, making both of the Pelletts, the bank, and Archie Brown parties. • The bill asserts that the Pelletts procured Childs' assent to engage' in the business in the first instance by fraudulent representations concerning the valué of the plant and business and the amount of the firm debts; that the claims of Archie Brown and John J. Pellett are fraudulent, and that John J. Pellett is in justice and equity liable to pay his share of the debts of the firm, which is insolvent; and that the real estate, though held in the individual names of the parties, is partnership property, and subject to the debts of the concern. The bill prays that the mortgages held by Pellett and by Brown may be canceled; that John J. Pellett and William B. Pellett, respectively, be required to account to complainant, the firm and its receiver, and the* court, and the former required to pay his proportion of the firm debts; that the bank also be required to account with the parties mentioned and the court for the money received under the La Due contract, and be enjoined from foreclosing its chattel mortgage; that the real estate mentioned be decreed to. be partnership property, and applied to the payment of the debts of the firm; that a receiver may be appointed to ascertain the validity of the -debts, and pay those found to be valid, under the direction of the court, and to continue or close up the business of the firm.
The Pelletts joined in an answer, in which they deny fraud in inducing complainant to become a member of the firm, assert complainant’s fraudulent use of the firm’s name in indorsing his $2,500 note, allege that the John J. Pellett claim of $3,000 was and is a valid obligation of the firm, and that the amount of $1,175 was justly due to Archie Brown from them at the date of his mortgage, allege a fraudulent conspiracy by Childs and La Due to deprive them of their interest in and right of control of the business and property, and, impliedly at least, that the First National Bank was a party to said fraudulent conspiracy. Said answer denies the validity of the chattel mortgage, for the reason that it was given without the consent of William B. Pellett, and also because the property was already in the custody of the bank, as security for its debt, and was to remain so until the succeeding January, 1892. It avers the validity of both mortgages given by the Pelletts upon the real estate, admits the right to an. accounting, but denies complainant’s right to any other relief. It also denies any liability upon the part of John J. Pellett for the debts of the firm.
The bank files an answer, claiming the benefits of a cross-bill. It denies all fraudulent combination upon its part, alleges the existence of a present claim against the old firm, and that John J. Pellett is liable thereon. It claims priority over the mortgages given by the Pelletts, which it charges to have been made with .the intention of defrauding the bank, the firm being insolvent. It asks a receiver, and the adjustment of its claim.
Archie Brown answers, asserting the validity of his claim and mortgage. It seems to be conceded that the Archie Brown mortgage has been purchased by the bank, although our attention has not been called to any evidence thereof.
Counsel for the Pelletts contend that the bill is multi farious, and, though we do not so decide, it is possible that, had the question arisen upon demurrer, it would be open to that criticism, under the decision in the case of Woodruff v. Young, 43 Mich. 548. See Snook v. Pearsall, 95 Mich. 537. If so, it is because of the various charges of fraud between the parties, and not because all are not proper parties to the suit. All have an interest in the accounting, which all seem to admit should be had, and all interested are proper parties. Wales v. Newbould, 9 Mich. 45; 1 Daniell, Ch. Pr. 216, and cases cited. While the court might, of its own motion, raise the question of multifariousness, it is not bound to do so, or to permit defendants to raise it, inasmuch as full justice can apparently be done upon this record. Payne v. Avery, 21 Mich. 524.
Upon a review of the evidence we are convinced that complainant has no just cause to.complain of fraud upon the part of the Pelletts. We also think that the $2,500 note indorsed by the firm is his personal obligation, as between him and them, which it is his duty.to pay. The note of $3,000, given by the firm to John J. Pellett, is a just and valid claim against the firm, drawing interest at 7 per cent, from July 1, 1891. The Archie Brown claim was a valid claim as between him and the Pelletts, but was never such against Childs, or any firm of which he was or is a member. It must be postponed to the payment of the partnership debts, except as hereinafter stated. The Pellett Table Company assumed all other debts owing at the time of its origin by William B. Pellett & Co. or Pellett Bros. & Co., and, as between the Pelletts and Childs, John J. Pellett is not liable upon such obligations.
We find no evidence that the bank was a party to the alleged conspiracy against the Pelletts, and agree with the circuit judge that on the 1st day of January, A. D. 1892, the sum of $12,512.45 was due and owing from the Pellett Table Company to said' bank, and that the sum should bear interest at 7 per cent, from that date. The note of $2,500 before mentioned is not a valid claim against said firm in favor of the bank, for the reason that such use of the firm name for the privatp purposes of complainant was not within the scope of the partnership business, and he never had the consent of 'his partners to use it. "When first used, it was upon a renewal note, and, if it were not, there is nothing to indicate that the bank did not understand' the fact that the complainant, and not the firm, borrowed the money for which this note was given, which was inferable from the fact that he gave his personal ■obligation, if it had no other information.
We will next discuss the interest of John J. Pellett in "the real estate, and the question of his liability to the bank. The real estate originally stood in the name of William B. Pellett alone, unless possibly it be a small parcel. The half of it was deeded to John J. Pellett, and •subsequently each deeded a sixth to Childs. This left the title to an undivided one-third in each. There can be no •doubt that this land was understood to be partnership property between the Pelletts and Childs, and each held his undivided one-third for the benefit and purposes of the partnership. As such it was subject to the payment of the debts of the firm, and perhaps the settlement of accounts between the partners, subject to any dower rights which may exist, but which we cannot consider, as the necessary parties are not before the court. Pars. Partn. §§ 272, 273, and notes. But it was within the power of the partners to dispose of this land, and competent for them to allow John J. Pellett to go out of the firm, taking his undivided one-third with him. This they seem to have done to the extent of agreeing that he should hold it as security for the payment of $2,000 by his brother, William, in a settlement between him and the firm, whereby he sold his interest, and was released from liability upon existing debts. As between him and his partners, they had no' right to treat this undivided one-third as partnership property. for the purpose of adjusting accounts between themselves, without discharging John's lien upon it. If he held it in trust for the partnership, it was upon the condition that they pay the $2,000 due from William. This is true also of creditors of the new firm, who would have no greater rights against John J. Pellett in relation to this property than the firm had. But an arrangement of this kind could not deprive the creditors of the firm of Pellett Bros. & Go. of the right to the application of this property to the satisfaction of their claims, if it should become necessary, for all of the property of John J. Pellett, including this, would be subject to such debts after all other partnership property should be exhausted. Again, the $3,000 mortgage would be upon a footing somewhat similar, for, although it should be held that it was valid as against the new firm, it could not be as against creditors of the old firm, as all of John's property would be subject to levy, after exhaustion of the partnership property. Hence the rights of John J. Pellett as to these items must turn upon the question of his release by the bank from liability upon the indebtedness which originated while he was a partner, which never was paid, and which was represented by notes given in renewal, from time to time, by the new firm, without objection upon the part of the bank, whose cashier testifies that he supposed that the bank could not avoid such release.
The question whether renewal notes extinguish the debt is a vexed one, and is usually one of fact, and the courts have differed somewhat upon the presumptions which arise from the bare fact of renewal by a note bearing the signature of other parties. The subject was discussed in the ease of Nightingale v. Chafee, 11 R. I. 609, where it was held that an agreement to discharge a retiring partner-will not be inferred from the acceptance of the note of the continuing partners. Whatever may be the rule ini other cases, we concur with Prof. Parsons in the opinion that, unless there is evidence of a contrary intention, “ renewals at bank ought always to be regarded as payment because the banks themselves so regard them.” See 2 Pars. Notes & B. (2d ed.) p. 203. In commenting upon the opinion, the court in the Rhode Island case says, “He does not tell us how he knows they so regard them.” This opinion of Prof. Parsons is not to be brushed away by a question. The practices of banks are well known, and from them their understanding may be inferred. Certainly, since the passage of the federal banking law, the whole course of national banks has been at variance with the idea that the original debt continued, and that successive renewals were additional and collateral security to the first obligation. The policy of the law is to require the banks to confine their loans to short-time paper, generally secured by indorsers, who may vary from time to time as the notes are renewed. We think it would be a surprise to those who indorse paper to be told that their obligation remains after the note has been taken up and canceled by successive renewals, each with a different., indorser, and each in its turn taken up and canceled. Smith v. Shelden, 35 Mich. 42. In the present case the-bank received the notes of the new firm after as well as. before the La Due contract was made, and with full; knowledge of the retirement of John J. Pellett, and supposed, as the cashiqr testified, that he was no longer-liable", by reason of the course taken.
We think, therefore, that John J. PelletPs lien of $2,000. is a valid claim upon the undivided third of the land, as is also the mortgage for $3,000 given by William upon the undivided third which stood in his name, said $3,000 being a valid firm debt, and that these have preced•ence over other debts as to those parcels, but not over the claim of Archie Brown, to which they are subject.
This seems to dispose of the questions raised in the case in accordance with the-views of the learned circuit judge, except as regards the mortgages to Archie Brown and John J. Pellett. As to those the decree will be modified as herein indicated. In other respects it will be affirmed, with costs to the defendants the bank and John J. Pellett.
McGrath, O. J., Grant and Montgomery, JJ., eon-curred. Long, J., did not sit. | [
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McGrath, O. J.
William H. Martin and wife executed a mortgage upon certain lands to. one Rogers. Afterwards Martin (then a widower) conveyed the lands to one Harrington. The deed contained the following clause:
“ Reserving unto the said William H. Martin and Essey May Martin a life lease of said above-described premises, for and during the life of each of them.”
Essey May Martin is the daughter of the grantor. Harrington conveyed to C. H., and C. H. to defendant. The deed from C. H. to defendant contains a like clause, and a further clause excepting the mortgage from the warranty, the grantee assuming the same. William Y. D. Cook, as assignee of the Rogers mortgage, foreclosed the same. A surplus was left after paying the mortgage, and Essey May Martin files her petition under How. Stat. § 8510, claiming an interest in said surplus: The court below held that she had an interest, and defined it, and defendant appeals.
It is insisted that the clause referred to' cannot be held to be an exception, and that as a reservation it is void, because made in behalf of a stranger to the deed.
The well-established rule is that a deed should be so construed as to give effect to the intent and design of the parties as manifested by the language used. Shep. Touch. ■ 86; Bridger v. Pierson, 45 N. Y. 601; Iron Co. v. Reymert, 45 Id. 703; Mitcalfe v. Westaway, 17 C. B. (N. S.) 658; Richardson v. Palmer, 38 N. H. 212; Corning v. Nail Factory, 40 N. Y. 209; Hall v. City of Ionia, 38 Mich. 493; Erickson v. Land & Iron Co., 50 Id. 604; Bassett v. Budlong, 77 Id. 338.
In Mitcalfe v. Westaway it is said:
“ All contracts are to be so construed as to give effect to the intention of the parties, even though in some cases this occasions a departure from the strict literal sense of the words used.”
In Bridger v. Pierson, B. had a right of way across A. ’s land, and, in conveying to O., A. reserved the right of way to B. Held, that although, strictly, a reservation in a deed is ineffectual to create a right in any person not a party thereto, yet, there being in fact a right of way existing at the time of the grant, the clause must be construed as an exception from the property conveyed.
In Iion Co. v. Reymert the deed reserved to one Pratt (a stranger to the deed) “the right he has to the ore bed and the right of way to the West Point foundry as now used.” The court say: “A reservation in a deed will not give title to a stranger, but it may operate, when so intended hy the parties, as an exception.”
In Corning v. Nail Factory, A. granted certain land to B. , reserving one acre to O. Held, that as a reservation it would be void, it being in behalf of a stranger to the deed. It was therefore held to be an exception of the acre, although C. took nothing.
In Richardson v. Palmer, land was conveyed, “reserving to the public the use of the-road through said farm; also reserving to the White Mountains Bailroad the roadway for said road, as laid out by the railroad commissioners; and also reserving to myself the damages appraised for said railroad way by the commissioners.” The court say:
“The result at which we arrive, therefore, upon a care- ' ful examination of the deed, and a deliberate consideration of all the circumstances under which it was executed, is that the plaintiff must have intended to sell, and Streeter to purchase, the Guy Young farm, just as it was at the date of the conveyance, subject to the incumbrance of the public highway and of the White Mountains Eailroad, as laid out through it, the plaintiff retaining his claim for the unpaid damages awarded for the laying out of the railroad; and that proper and apt words were used in the deed of conveyance to carry out that intention, without resorting to any doubtful construction, or giving to the grantee any advantage from the imperfection or uncertainty of the phraseology employed; the words expressing a reservation being made to operate, as only under the circumstances they can opérate, as an exception to the general terms of the grant which precedes them.”
In Hall v. City of Ionia, Mr. Justice Campbell, speaking for the Court, says:
“It is manifest from the conveyances of Samuel Dexter that, if it is legally possible for him to secure and retain for himself the right to the water and the right to divert it into an artificial channel, he has done so. It is not at all important to find any technical name for his method, or to spend time in the legal etymology of 'exceptions'’ and ' reservations/ which terms have been used with some carelessness and confusion. The general, and, as we think, the correct, method of construing such provisions as th.ose in question, is to give them the force which the deeds evidently intended they should have.”
Again, in Erickson v. Land & Iron Co. it is said:
“The authorities are not as clear or as consistent as they might be, and it is evident many of'the decisions are based somewhat on local peculiarities and statutes/ With our simple allodial tenures, the rules cannot be precisely similar to those applicable in some of the English estates. Without considering these authorities at,length on points which here are abstract, we need only remark, that, in the absence of legislative changes, we think the common-law rule rejecting reservations repugnant to the grant, and the rules determining what rights are personal and do not run with land, cannot be disregarded; while, on the other hand, the mere form of the deed, and the technical phrases as to exceptions and reservations, should not prevent any lawful provisions in a deed from being carried out according to its unambiguous intention.”
In Bassett v. Budlong, Mr. Justice Champlin says:
“Every deed or contract nin writing is supposed to express the intention of. the parties executing it, and, when the object or purpose of such deed or contract is. called in question in a court of justice, the first inquiry is, what is the intention of the parties, as expressed in the written instrument?”
In Maynard v. Maynard, 4 Edw. Ch. 711, the father deeded to his son, “excepting and reserving tó my three daughters, H., E., and B., a right of living on the said before-mentioned premises, as heretofore, so long as they shall respectively remain single.” Prior to the execution of the deed, the daughters lived with their father, .and were supported with the rest of his family on the farm, and they so remained with the grantee until his death, and were still on the farm. The court gives to the terms “ reservati on ” and “ exception ” their technical signification, .and holds that the language usfed has no force or effect either as an exception or a reservation; nevertheless that—
“The revised statutes having abolished the' common-law mode of conveyance by feoffment with livery of seisin, and converted deeds of bargain and sale and lease and release into grants, and at the same time abrogated the doctrine of implied covenants in conveyances of real estate, and abolished uses and trusts, except as therein expressly authorized, and then having declared that ‘ in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of, any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument and is consistent with the rules of law/ the only thing the court has to do is to ascertain the ‘intent/ and, when that is done, to carry it into effect. * * * Looking into the deed in question, it is easy to perceive that the grantor, in making the conveyance of the farm to his son, not only intended to settle the property upon him by way of gift or advancement, but, at the same time, to make a provision out of it for his three daughters. The extent of that provision is another question. But, whatever it may be, the court is bound to give effect to the clause of the deed in which it is contained, and to award to them the benefit of it according to the clear intention of the whole instrument; for, although the clause is not good as a technical exception or reservation, yet it is good as denoting an intention which is not inconsistent with the rules of law.”
The words “ reserving ” and “ excepting ” are often used indiscriminately, and whether a particular provision is an exception or a reservation does not depend upon the use of either term, but upon the nature and effect of the provision itself. Hurd v. Curtis, 7 Metc. 94; Stockwell v. Couillard, 129 Mass. 231; Kister v. Reeser, 98 Penn. St. 1. In the last case cited, it is said:
“ These terms are often used in the same sense, the technical distinction being disregarded. Though apt words of reservation be used, they will be construed as an exception if such was the desigfi of the parties. Thus, when a deed in fee of land was made, the grantor ‘ saving and reserving, nevertheless, for his own use, the coal contained in the said piece or parcel/ * * * it was held that the saving clause operated as an exception of the coal;” citing Whitaker v. Brown, 46 Penn. St. 197.
From an examination of the cases cited, and the decisions of the courts of this country, generally, upon the question here involved, it will be observed that, while the rule that a reservation in favor of a stranger to the instrument is invalid as a reservation has been adhered to, yet, in order to effectuate the intention of the grantor, such a reservation has uniformly been treated as excepting from the grant the thing reserved. Nor has this holding been confined to cases where the reservation had been previously carved out. It has been repeatedly held that a conveyance of land, reserving or excepting the dower interest of a stranger to the deed, was a good exception. Canedy v. Marcy, 13 Gray, 373; Meserve v. Meserve, 19 N. H. 240; Crosby v. Montgomery, 38 Vt. 238; Swick v. Sears, 1 Hill, 17.
It was held in Marshall v. Trumbull, 28 Conn. 183, that an interest retained by a grantor ont of the body of the thing granted is rather an exception from the grant than a reservation.
In Murphy v. Merritt, 3 Jones (N. C.), 37, under a deed of gift of slaves, “'reserving unto myself and to my wife, M., the use during the term of our natural lives,” it-was held that the ulterior donee was not entitled to the property until both these lives were extinct.
In Logan v. Caldwell, 23 Mo. 372, Logan conveyed a parcel of land to Caldwell in fee, with the following clause: “With this exception: that said John Logan reserves the use of said tract of land and farm thereon, or the rents and profits arising from it, during his life and the life of his wife.” Logan's- wife survived him. Held, that the language did not create any estate in the wife; that the entry of the defendant under the deed impliedly raised on his part a promise to pay for the use and occupation of the land; and that the promise was transmissible to Logan's personal representatives.
It will be observed, however, that in nearly all of the cases referred to the title of the party in whose favor the exception was made, or who claimed the excepted thing, did not depend upon the instrument containing the exception. In Keeler v. Wood, 30 Vt. 242, Elijah Wood died, intestate, seised of certain lands. Elmer E. Wood, a son, conveyed by warranty deed a portion to one Lawrence, whose wife was a daughter of Elijah Wood, with a reservation in favor of “our mother, Mary Wood.” No controversy arose until after the death.of Mary Wood, when, in a suit against the grantor upon the covenant of warranty, it was insisted that the reservation was of the fee, but the court held that it was of but a life estate; so that the question here involved was. not reached in that case.
The language here used must, we think, be treated as excepting from the grant the use and enjoyment of the land conveyed, during the lives of both father and daughter, as effectually as though that reservation had been for a fixed term of years, extending beyond the life of the father, and, at the death of the father, the right to that use for the unexpired portion of the period must be held to have descended to the heirs of William H. Martin. This construction gives to the grantee the estate which both parties to the instrument evidently intended that he should take.
It does not appear from the record that petitioner is the sole heir. The record will therefore be remanded, with directions to set aside the order heretofore entered, for the proper determination of that question, and the entry of an order, after such hearing, in accordance with this opinion. No costs will be allowed.
The other Justices concurred. | [
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] |
Long, J.
This controversy arises over the sufficiency of the service of the declaration by which suit was commenced upon the defendant company, and the rulings of the court in framing an issue to determine the force of such service. Defendant entered a motion to quash the service on the ground that one F. C. Kenney, upon whom the service-was made, was not an agent or officer of the defendant, company upon whom process could be served which would bind the defendant. On the hearing of this motion the plaintiff demanded an issue, and tendered the form of such issue to the court. Thereupon the defendant’s counsel requested that he be allowed the same time to plead or demur as he would be entitled to in case of service of declaration. This was denied, büt the court continued the hearing for three days for that purpose, at which time the court, against defendant’s objection, framed the issue as follows:
“Was F. C. Kenney, the person on whom the declaration filed in this cause was served, such an officer, agent, or employé of the defendant, or so connected with its business, on January 26, 1894, as that service could be made on him, and bind the defendant, under the laws of' this State?”
This issue, which seems to have been consented to by plaintiff’s counsel, was set for hearing before the court for a day five days thereafter.
This ruling of the court in framing the issue, and refusing the request for time to plead or demur, raises the first question presented, but we think the case ruled by Haywood v. Johnson, 41 Mich. 605, in which it was said that,—
“ Instead of proceeding to raise an issue by the formal and somewhat dilatory course by pleading, it was perfectly admissible for the court, in case the plaintiff wished to control the point on an issue joined, to frame an issue on the basis of the motion, and then proceed without unnecessary delay to try it, and get a determination of the fact on the record, with the same effect as though the issue had been introduced by pleading.”
The issue thus framed was heard before the court. Mr. Kenney was sworn as a witness, and from his testimony the court made a finding as follows:
“It is my conclusion from the testimony that Kenney was the representative of the tunnel company, in charge of its business at this point; that he had charge of and managed all passenger and freight business, including the running of trains through the tunnel; that he had control of and directed the running of all trains on the American side, west to the Grand Trunk Junction, about three miles west from St. Clair river, and about two miles west of the tunnel portal, and about one and a half miles west of the tunnel station; that he was in charge of all the tunnel company’s business and property at that point, and was the person highest in authority there and in St. Clair county; that he had charge of the tunnel yards, kept the pay roll, and was himself on the pay roll of the defendant company; that he was jointly paid by the C. & G. T. By. Co., the G-. T. Ey. Co., and the tunnel company, and his salary and office expenses were paid one-third by each; that he was directly responsible to the general superintendent, located at Montreal, for his action; that his jurisdiction extended over the property and management of the business of the tunnel company, both on the American and Canadian sides of the St. Clair river; that he issued passes through the tunnel; that he issued orders in his own name in reference to the tunnel company’s business, when necessary. It was not claimed on the argument, but was treated as a conceded fact, that neither the presiding officer, secretary, treasurer, nor cashier of the defendant company lived in St. Clair county.
“From these and other facts shown by the testimony, it is my conclusion that he represented the general superintendent at this point, and was such an agent as is contemplated by section 8137, 3 How. Stat., on whom service could be made.”
The testimony of Mr. Kenney warrants the findings of fact made by the court, and the only question which can arise is whether Mr. Kenney, under the facts found, was such an agent as provided by 3 How. Stat. § 8137, upon whom process could be served. This section provides:
“ Suits against corporations may be commenced by writs of summons or by declaration in the same manner that personal actions may be commenced against individuals, and such writ or a copy of such declaration in any suit against a corporation shall be served on the presiding officer, cashier, secretary, or treasurer, or any other officer or agent of such corporation, or by leaving the same at the banking house or office of such corporation, and may be served in any county in the State where the plaintiff resides: Provided, that in any county of the State where said plaintiff may reside, other than the one wherein the principal ‘office of such corporation may be located, a writ of attachment may be the first process against such corporation, which shall be served in the same manner as other' writs of attachment issuing out of the court wherein suit is commenced; and, upon the return of such service being made, such corporation' shall be deemed to be in court, and the like proceedings, as near as may be, shall be thereupon had as in cases of suits against indi viduals. * * * Provided further, that the attachment proceedings as herein provided for shall not apply to railroad companies or corporations whose right of way, or any part of the same, is within the boundaries of the State of Michigan, nor to navigation companies or corporations.”
It is contended by counsel for defendant that this act does not apply to railroad companies as to service of process, but that 3 How. Stat. § 8147, makes the only provision for the service of process upon railroad companies. That section provides:
“Whenever in any suit or proceeding, either in law or equity, it shall become necessary to serve any process, notice, or writing upon any railroad company in this State, it shall be sufficient to serve the same upon any station agent or ticket agent at any station or depot along the line or at the end of the railroad of such company; and such service shall be deemed as good and effectual as if made on the officers, stockholders, or members, or either of them, of such company.”
The court below held that section 8137 did not repeal section 8147, as was contended by plaintiff's counsel. In this construction, counsel for defendant agree with the learned circuit judge, but contend that the words, “or 'any other officer or agent of such corporation,” contained in section 8137, have no application to railroad companies. We cannot agree with this contention. That section evidently was intended to apply to railroad companies as well as to other corporations. If it were not so intended by the Legislature, it is difficult to conceive why the section should provide that the attachment proceedings authorized by it should not apply to railroad companies. We see no difficulty in sustaining the two sections, and applying each to the service of process upon railroad companies. Section 8137 was intended to extend, rather than restrict, such service. Counsel, in their briefs, have gone into the history of the various enactments providing for service of process upon corporations, but we think section 8137 too plain to need further discussion. The court below was right in holding the service good.
Some question is raised whether certiorari was the proper remedy, but we have concluded to dispose of the case •on its merits, without regard to that question.
The order below is affirmed.
The other Justices concurred. | [
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Per 0uriam.
In this matter we deem it unnecessary to issue the mandamus as prayed. Relator was, without question, entitled either to a hearing upon the charges made at the time fixed, or to have a time fixed when such hearing should be had. We think that the indefinite action of the common council was equivalent to a dismissal of the charges then pending, and must be so regarded. No costs will be allowed. | [
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] |
Grant, J.
Plaintiff sued to recover for services as school teacher. The defendant pleaded the general issue, with notice that the contract sued upon was canceled and terminated before the time when the said plaintiff’s services were to begin.
Plaintiff was teaching at the time of the execution of the contract, as principal of the ungraded school. At a regular meeting of the board held June 15 it refused to adopt the recommendation of the committee on schools to discontinue the ungraded school, and adopted a resolution appointing plaintiff principal at the same salary as the previous year. June 16 the secretary of the board, on its bphalf, executed a written contract with plaintiff, whereby he agreed “to serve as a teacher in the public schools of the city for the ensuing school year, commencing September 5, for $700.” The contract contained the following clause:
“ Said board reserving to itself the right to change said teacher from one school or grade to another' school or grade, or to discharge said teacher at any time whenever it may desire to terminate this contract, upon one week’s written notice to said teacher by its committee on teachers • and text-books.”
June 29 a special meeting of said board was held to take •action upon the resignation of the superintendent of schools, and to consider such other business as might properly come before the board. At this meeting the action of ■June 15 was reconsidered, and a resolution adopted discontinuing the ungraded school, and also instructing the committee on teachers and school books to give plaintiff the requisite notice that his services were no longer required. ■July 7 the committee wrote plaintiff, notifying him that his contract would terminate July 16. At the time this notice was mailed he was out of town, and did not receive it until in August or the 1st of September. He, however, was informed of the action of the board June 30. At the •opening of the schools in September he presented himself for work under the contract, and was refused employment. He secured "other employment in May following. The ■court directed a verdict for three months’ salary.
The defendant denies the authority of the secretary to make the contract. This objection comes too late, as the plea admitted its execution.
Several objections are made to the validity of the action ■of the board in rescinding the contract. We deem it unnecessary to mention them. The board refused plaintiff employment at the opeting of the school. This was equivalent to notice, and entitled him to recover for only one week’s salary. Fisher v. Monroe, 21 N. Y. Supp. 995; Peverly v. Poole, 19 Abb. N. C. 271; Hartley v. Harman, 3 Perry & D. 567.
Judgment reversed, and entered in this Court for the plaintiff in accordance with this opinion. The defendant"will recover costs.
McGrath, O. J., Long and Montgomery, JJ., concurred. Hooker, J., did not sit.
See Insurance Co. v. Howell, 101 Mich. 332, 335, and note. | [
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] |
Hooker, J.
An information in the nature of quo warranto was filed in the circuit court for the county of ■Oceana, to try the title of the defendant, Albert Q-. Avery, to the office of trustee of the village of Shelby. The findings ef fact show that Avery received a majority of the votes cast at said election.
Two questions arise in the case:
1. At the time of such election, William H. Barry and George W. Woodward held the offices of president and trustee of said village, respectively. They were also candidates for the offices of president and street commissioner, respectively, at said election, and Edward B. Gaylord was a candidate for trustee. Said Barry and Woodward were appointed by the village council to act upon the board of election inspectors at said election, and said Gaylord was-appointed by said board as one of the clerks of said election. In making and acting under such appointments the-council and members of the board acted in good faith, believing that the election board was to be appointed under How. Stat. § 2794, and that the provision of Act No. 202, Laws of 1893, providing that “no person shall act as an inspector who is a candidate for any office to be elected by ballot at the election,” did not repeal or alter the statutory provision referred to, governing village elections, and prescribing that the president and clerk of the village and one of the trustees, or any three of the trustees, to be appointed by the council, shall be the inspectors of the election, and that the president, when present, shall be chairman, and the others shall be clerks, of the board of inspectors. There is nothing in the record to show that the result of the election was in any respect different from what it would have been had other persons officiated as inspectors, or had these persons not been candidates upon the ballot.
2. Notices in the nature of instructions to the voter were posted, but, instead of being in exact conformity to-the law of 1893, were such as were prescribed by the law of 1891.
It is contended that, for the reasons given, the election. was void; but we think otherwise. The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result. Under repeated decisions it is settled that the matters relied on here were irregularities, and did not invalidate the election. People v. Bates, 11 Mich. 362; People v. Higgins, 3 Id. 233; People v. Cicott, 16 Id. 283; Adsit v. Secretary of State, 84 Id. 420; Farrington v. Turner, 53 Id. 27; Loranger v. Navarre, 102 Id. 259; Taylor v. Taylor, 10 Minn. 107; State v. Bernier (Minn.), 38 N. W. Rep. 368.
The judgment of the circuit court will therefore be affirmed.
The other Justices concurred. | [
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] |
McGrath, C. J.
This is ejectment to recover the possession of a tract of land lying on the west shore of Lake Huron, in fractional section 36, town 7 N., of range 17 E.,' and known as “Fishery No. 1.” Both parties derive title from a common source. The following diagram (a copy of that portion of the government survey) gives fractional section 36 and surroundings. (See diagram 1, page 419.)
The McNeil tract, referred to in the deeds hereinafter named, comprises private claims Nos. 344 and 357. In October, 1838, a plat was filed in the office of the register of deeds, of St. Clair county, upon which the easterly portion of the McNeil tract, excepting the land between Lake street and the water, was laid out into lots and blocks. This plat shows a street along the lake shore, and eight other streets between Lake street and Fourth street, which latter street bounds the plat on the west'. The south line of the plat was Michigan avenue, and twelve other streets intervened between that avenue and Walnut street, which was the northern boundary of the plat.- The north-easterly portion of this plat is inserted. (See next page.)
Diagram 1.
Diagram 2.
On October 14, 1841, John McNeil and others filed a petition in the circuit' court for the county of St. Clair, alleging their proprietorship to all of the lands covered by the plat, and that no part had been sold except one lot upon the highway; and, further, that at that time all .of the village north of Superior street was a wilderness, and not needed for village purposes, as it was then a forest; and asking that the streets and public places north of such Superior street might be vacated. Upon this application the court made an order vacating the plat; and upon December.30, 1841, a second plat was filed, showing all the lands north of Superior street and east of Fourth street, laid out into what have since been known as “ Out-lots of the McNeil Tract.”
Diagram 3.
(A) On the 19th of July, 1840, Charles Butler conveyed to Robert T. Holland “part of fractional section 26, * * * bounded as follows: Commencing 50 links north, 36 degrees west, from a stake standing on the line of the ‘McNeil Tract/ so called, and being the southeast corner of that part of said fractional section which lies west of the Lake road; and running thence north, 26 degrees west, along the west line of said road, 4 chains and 50 links, to a stake; thence south, 80 degrees west, 6 chains and 67 links, to a stake; thence south, 26 degrees east, 4 chains and 50 links, to a stake; thence north, 80 degrees east, 6 chains and 67 links, to a stake, being the place of beginning, — and containing three acres of land.”
(B) On the 1st day of February, 1841, Charles Butler deeded to Joseph D. Beers “the south -part of fractional section 28, * * * lying west of the Lake road, excepting and reserving from the same three acres, heretofore sold to Robert T. Holland, off the south-east corner of said fractional section 26, lying on the west side of the said Lake road, and also reserving all of said section lying east of the said Lake road; said south part of said frac■tional section 26 containing, over and above the reservation herein mentioned, 50 acres of land-.” This deed conveys Other lands, including parcels in the McNeil tract, and locates said pieces of land by reference to “ a map of the subdivision of said McNeil tract.”
(0) On the last-named date, Charles Butler deeded to William Bard, Thomas Suffern, and James McBride, “the following lots, in the village of Fort Gratiot, according to the field map, viz.: Lots 7 and 8 in block 55, lots 28 and 29 in block 60, also lots numbers 22 and 23 in block 19, the second last lot being the north-east corner of lot 21 of the McNeil tract, as subdivided; * * * also Fishery No. 1 on the lake shore, beginning at the north line of the Lighthouse Reserve on the lake, extending northerly 120 rods north of the north line of the 'McNeil Tract/ so called, including the land lying between the Lake road and the lake.”
(D) On September 2, 1871, Beers, by executor, conveyed to John M. Hoffman “ the south part of fractional section 26, * * * lying west of the Lake road (except three acres sold to Robert T. Holland), and containing 50 acres, be the same more or less.”
(E) On June 3, 1873, Hoffman' conveyed to Howe the last-named parcel, by like description.
(F) On June 9, 1873, Howe conveyed to Esther Dor wood a portion of fractional section 26, describing, tbe same as follows: “ Commencing at a stake standing in the south part of fractional section 26, to.wn 7 north, of range 17 east; running thence easterly, at right angles with the Lake Shore road; thence south, on a line parallel with the road, 10 rods; thence westerly, at right angles with the road, 8 rods; thence northerly, at right angles with the last line, 10 rods, to the place of beginning,— containing half an acre of land, said land including the house now occupied by the party of the second part.”
(C) On November 24, 1876, Howe reconveyed to Hoffman “ the south part of fractional section 26, * * * containing in all 53 acres, more or less, excepting three acres sold to Kobert T. Holland, .2 acres to Mrs. Hall, one-half an acre to Mrs. Dorwood, and Fishery No. 1 on the lake shore.”
(H) On February 6, 1877, Hoffman conveyed to the defendant “ the south part of fractional section 26, * * * excepting three acres owned by Holland, two acres owned by Mrs.- Hall, and half an acre owned by Mrs. Dorwood, and Fishery No. 1.”
The plaintiff derives his- title to Fishery No. 1 by deed dated April 25, 1882, from Thomas Suffern, by executors, to Wesley L. Hoffman, which deed purports to convey the entire title; a deed dated February 3, 1875, from the administrators of the estate of William Bard to John M. Hoffman, conveying an undivided one-third of Fishery No. 1; a deed hearing date April 25, 1882, from John. M. Hoffman to Wesley L. Hoffman; and a deed dated September 16, 1882, from Bobert T. Holland to Wesley L. Hoffman. These deeds of the Fishery contain a similar description to that above given in the deed from Butler to Bard and others (C).
Defendant insists that so much of Fishery No. 1 as was east of the premises conveyed has ceased to exist; that the action of the waters of Lake Huron for a long series of years has had the effect to wear away the banks of 'the shore; that, at the point in question, it has so far encroached upon and worn away the land that the whole of that part •of said fishery has been washed away, and that the place where it was is now covered by the waters of the lake, and that the water line now reaches to its lands. The plaintiff claims, on the contrary, that the fishery has not been washed away, but that it substantially remains; that the action of the water has not been such as materially to wear away the land; and that, though it may be worn away to some extent temporarily by storms, it generally makes on again to the beach, and, at least, a considerable part of the land, constituting the fishery remains.
The disputed fact in the case is the location of the Lake road referred to in these several deeds. At a very eaily date, Robert T. Holland built a house upon the thiee ■acres conveyed to him by Butler (A), and inclosed said parcel by a fence. Many years ago, a street was opened ■on the line between fractional section No. 26 and the McNeil tract; and in 1816 Huron avenue was extended in ■a north-westerly direction beyond the north line of fractional section No. 26, connecting with the lake shore at a point north of said fractional section. The. extension ■ was called the “New Lake Road,” and the old road was abandoned. The land conveyed as aforesaid to defendant was used by it for cemetery purposes. In 1883 a surveyor was- employed by the cemetery board to locate the east line of said property. The surveyor was paid for his services by the cemetery board and plaintiff jointly. A survey was then made, the line fixed, and the cemetery authorities built a post and wire fence upon the line so fixed. The line as then fixed is the one for which plaintiff contends. In 1889 the cemetery authorities took down this fence, and constructed one to the water’s edge. So far as the record discloses, this was the first time that the defendant asserted the right to possession of any land east •of the line of the fence so constructed as aforesaid.
No traces of any highway upon the surface of the disputed territory now remain. It appears that, for many years after the conveyances from Butler (A and B), there were trees and vegetation for some distance east of the Holland inclosure, and of the line fixed by the surveyor aforesaid; but violent storms have washed away the surface, and undermined many of the trees, so that much of the area between said fence line and the water’s edge is a sandy beach, hut the water’s edge is .still from 150 to 250 feet east of said fence line and east of the Holland inclosure. There was some evidence tending to show that the water’s edge had been at times nearer to this line, and that, owing to the action of the cemetery authorities, the land had made on again; but it appears that, when the fence line was determined as aforesaid, there was land east •of said line, and it does not appear that at any time the water line reached or passed such fence line. In the construction of the wire fence aforesaid, trees were made use ■of along the line to which to attach the wires.
Plaintiff introduced the township record of a highway along the shore, dated December 11, 1837, “ surveyed by me, Nathan Ward, district surveyor, and Elijah Burch and Alexander Ashley, commissioners of highways.” This .survey gives courses, distances, and a large number of monuments. It commences on the north line of the town•ship, and ends at “ a post one chain from the west bank of Lake Huron,” a point which is south of fractional section 26. The surveyor who located the fence line for the ■cemetery authorities in 1883 was called for plaintiff, and locates the starting point on the north line of the township, and admits his inability to find any of the intermediate monuments or finger posts except one, or to find the “post one chain from the west bank,” but claims to have followed, the courses given in the highway survey aforesaid, and that such courses and distances brought him to the line of the road immediately in front of the fence inclosing the Holland tract, and upon the line of Lake street, as it appears upon the plats (2 and 3) above given. He found the stake upon the north line of the McNeil tract referred to in the deed (A) from Butler to Holland, and also the stake at the north-west corner of the Holland parcel, which is also referred to in that conveyance, and testifies that-the line of the road as retraced according to the survey made in 1837 conformed to these stakes. He also locates the Dorwood half acre as fronting on the line so traced by him. He further finds that the Holland inclosure does not contain quite three acres, and that, in order to give Holland the full three acres within his inclosure, it would be necessary to extend the north and south lines nearly a rod. His retracing gives to that part of fractional section 26 lying west of the line run by him 96.9 acres of land.
The defendant introduced a survey of the highway made in 1843, and a subsequent survey made in 1854. The courses and distances given, so far as section 26 is concerned, are substantially the same as are given in the survey made in 1837. The defendant called its city engineer, who testifies that, by following the courses and distances indicated in the several surveys, he came out at a point opposite the Holland inclosure, 40 rods east of the meander line. Upon cross-examination the witness says:
“ Q. And, at a point of the boundary of section 15, your road of 1837 crosses the meander line, does it not?
“ A. Yes, sir.
“ Q. According to the government survey, it crosses the meander line into Lake Huron in section 15?
“A. Yes, sir.
“ Q. And your line of 1837 crosses the meander line at that point into Lake Huron?
“A. Yes, sir.
“ Q. And your survey of 1843 also crosses the meander line at the same point into Lake Huron, does it not?
“A. I will not say that it passes into Lake Huron; it passes the meander line.
“Q. The meander line indicates what there?
“A. It indicates a line somewhere near the border of-Lake Huron.
“ Q. The margin of Lake Huron?
“A. Not necessarily close.
1 “ Q. Within what distance would you say it was?
“A. Probably within 3 or 4 rods; possibly more at points.
“ Q. At that point it crosses what is here indicated as the meander line?
“A. Yes, sir.
“ Q. And it joins the other road very closely down here, at section 26, — the two roads come together?
“A. They are said to come together.
“ Q. Near the north part of fractional section 26?
“A. Yes, sir.
“ Q. And the survey brings them up together at that point?
“A. They are said to. ,
“ Q. And, from that where you cross that meander line, how much further did you survey that line of 1843?
“A. I surveyed it down to near the south line of 15.
“ Q. Or a mile and a half above Holland’s?
“A, Yes, sir.
“ Q. Did you survey it any further?
“A. No, sir.
“ Q. Then, from there down it is a joint line?
“A. From there it is a line completed from the notes.
“ Q. From the time it crosses these two surveys, the one of 1837 and the one of 1843, they never get west of the meander line, do they, again?
“A. No, sir; not according to the way they plat.
“ Q. And they never get within anywhere near it at the south end?
“A. No, sir.
“ Q. Now, according to the field notes, they come out just about as they should on the plat; that is, they join just about as they should?
“ A. They join just about as they should according to the notes.
“ Q. That is just about as they should join?
“A. Yes, sir.
“ Q. Now, as a matter of fact, Mr. Rogers, if this survey was ever run on that line as you run it, they must have run either in the water from the time they passed section 15, or else the meander line is not correctly laid down on that map, is not that so?
“A. That is true, I guess.
“ Q. So that either, as a matter of fact, these two surveyors who surveyed these roads, the one in 1837 and the other in 1843, ran that road into the water from the time they passed section 15. down to the end, or else they have both made a mistake, or else the government has made a mistake?
“A. Yes; I think that can be answered in the affirmative.
“ Q. Or else you have made one?
“A. Yes; put that in too, if you want to.
'' Q. Now, the two must have made practically the same mistake, must they not, — substantially the same mistake?
'' A. It seems to me, the way their notes plat. * * *
“ Q. Now, at this point, I don't remember how many rods you said you were out there in the lake.
“A. I said over 40 rods.
'' Q. How many chains would that be?
“A. 10 chains.
“ Q. Beyond the meander line?
“A. Yes, sir.
" Q. So that, if the road was ever run out into the lake at that point, that meander line was set 10 chains west of the road?
“A. If the road was ever there, the meander line was 10 chains west. * * *
'' Q. Why do you estimate, Mr. Rogers, that there was ever any land out there, beyond the meander line, upon which to run a road?
“A. I never said there was, that I know of.
'' Q. You made a map in which you located a road out there?
“A. I didn't locate a road. I located some minutes of a survey that was placed in my hands. * * *
“ Q. At that point, .then, you knew the fact that the center of the road, what was called the 'Lake Road' there, was at that point when you made the survey up here in section 4?
“ A. I knew about it according to that plat.
Q. Then, if that plat was correct, you had two definite points of certainty when you made the survey?
“ A. Not in those minutes. It doesnT say anything about that. It simply gives courses and distances from one point.
“ Q. If that Lake road was correct on the plat at that point—
“A. If it was?
“ Q. If it was correct at that point, and this quarter post up at that point was correct, you had two points of certainty, had you not?
“A. Yes; if that was correct.
“ Q. So that you knew, when you were surveying here, when you crossed this line and ran out into the lake, you knew that you were there out of the way, that you were making a mistake, or. somebody else had made a mistake, did you not?
‘‘A. Certainly, I did.”
The defendant supplemented this testimony by that of a number of witnesses, none of whom had resided upon the road, or at or near the land in question, but who had occasionally, at intervals between 1836 and 1860, traveled along this shore. The testimony of these witnesses, however, does not tend to show any authoritative location of a highway, nor does it ‘ tend to locate any particular or definite way by user. The witnesses disagree as to the distance from the Holland house to the fence, as to the distance from the fence to the road, and from the road to the water. No other definite monumedt is referred to. A majority of them fix the distance from the house to the fence at from 5 to 6 rods. Certain of them insist that the road was near the fence, and two of them state that the Holland fence was the west boundary of the highway; others state that it was from 25 to 30 feet from the fence; and others vary the distance from 4 to 10 rods. The distance from the road to the water is given by some at 4 rods, by others at 6, by others at 8, again at 10, and by some as high as 20 to 25 rods. All agree that there was no road cut out, having any definite or uniform width, and that travelers drove anywhere between the road and the lake. One witness says:
“ There were quite a number of tracks parallel with each other every two or three rods. Have seen as many as half a dozen parallel tracks. Everybody made a road for themselves.”
Another says:
“ There were numerous traveled tracks.”
Another:
“There were half a dozen roads. When it got packed with heavy sand, we would shift again, and so on.”
Another says:
“ Some places the roads were 3 rods apart; some places, not over 2 rods. Farmers jogged in, I suppose, to get the best road.”
Another says:
“There was no cut-out road, except cut out to take a sled through. They took out a few trees to let a sled through, and kept as close to the water as they could, so as to have as slight a cut as they could. It was what you would call a ‘bush road.'” <■
Another says:
“It was never more than a mere wagon track through the timber. There were no regular dimensions, or anything like that.”
Another says:
• “It was supposed to be a road, but they run anywhere between the road and the beach. In very dry weather they would go just as close to the water as they could get, — right on the border of the lake. The road as traveled wasn't straight; it zigzagged around.”
Several of these witnesses say they “think,” or that they “ should say/’ or that, their “judgment is,” that Holland’s'fence had been moved, or that it must have been moved, to the west. No witness testifies to the fact of removal, but they judge from alleged changed appearances at times years apart. Eansom Holland, whose father lived in the house upon this inclosure from about the time of the purchase of the three-acre tract until 1886, and who himself has lived upon the tract since his birth, in 1841, testifies that the fence is now where it has always been. A number of these witnesses give the course of the road in the vicinity of the Holland tract as north-easterly, but the government meanders make fractional sections 26, 23, 22, 15, 10, 9, and 4. Section 23 contains less than 12 acres. The north line of 22 is less than 54 chains, and the north line of 15 is 22 chains, and the course of the meander line is nearly direct from the south line of 26 to the starting point in 4.
• The survey commences on the north line of the township, and locates its southern terminus at a point south of the land in question. There was no east and west road at such terminus, and the presumption is that it closed with an existing highway. This survey was made in December, 1837, and the plat (diagram 2) showing the course of the highway from the north line of the McNeil tract southerly, beyond the terminus of the recorded survey, to the Lighthouse Eeserve, was recorded in October, 1838.
As between the record of a highway, being a survey thereof by the proper authorities, or a dedication thereof to the public, and such a use of the margin along the shore of the lake, which margin is from 10 to 30 rods in width, as is indicated by the testimony of the defendant’s witnesses, which use includes the use of the way described in the survey or defined in the plat, the former must prevail, because the most certain. There is no room in the present case for the application of the rule that, as between the record of the survey of a highway, and a highway actually located upon the ground by fence lines, or by being graded and traveled or otherwise definitely fixed, the latter must prevail, and the presumption must be in such case that the description in the deed, bounding the land by such highway, referred to the highway as' it actually existed upon the ground at the time of the conveyance. The reason for that rule does not exist unless the line of the road was actually located and definitely fixed, in which case the ,road itself becomes the controlling monument. Streets that have been opened and acquiesced in by the parties interested, or by the public authorities, become permanent boundaries, and form new starting points for later surveys. Twogood v. Hoyt, 42 Mich. 609; Van Den Brooks v. Correon, 48 Id. 283. In Atwood v. Canrike, 86 Id. 99, 103, it is said that—
“Without proof that the line of the road, as shown by the record, had been opened or used at the time the deed was made, or proof that no road called a 1State road5 had been opened or used, * * * the record would not be material.55
In the present case there is no proof that, at the.time when Butler conveyed these parcels of land, a highway had been cut out or graded or worked or its location definitely fixed by authoritative action, and, as respects use or travel, the testimony clearly tends to show that the use was not confined to any line within a strip of land from 10 to 30 rods in width. Testimony of that character is admissible only as a dernier resort. Kilgannon v. Jenkinson, 57 Mich. 325. See; also, Lyle v. Lesia, 64 Mich. 16.
The Holland tract is described in the deed from Butler to Holland (A) by metes and bounds, the courses and distances are given, and four stakes are expressly referred to. The deed from Butler to Beers (B) excepts three acres, “ heretofore sold to Holland, off the south-east corner of said fractional section 26, lying west of the Lake road.”' The Dorwood tract is described in the deed from Howe toDorwood (F) byv metes and bounds, courses and distances. These deeds refer not alone to the Lake road as a boundary, but to these parcels as located on such Lake road,, and stakes on the highway are frequently referred to as monuments. The Holland parcel is referred to as occupying the south-east corner of the tract included in the general description. As is said in Willey v. Snyder, 34 Mich. 60, written descriptions of property are to be interpreted in the light of the facts known to and in the minds of the parties at the time.
“ Descriptions do not identify of themselves; they only furnish the means of identification. They give us certain marks or characteristics, — perhaps historical, data or incidents, — by the aid of which we may single out the thing intended from all others; not by the description alone, but by that explained and applied. Even lands are not identified by description until we place ourselves in the position of the parties by whom the description has been prepared, and read it with the knowledge of the subject-matter which they had at the time.”
The conveyances through which defendant derives its title furnish the means of identification. The boundaries of neither of these excepted tracts are defined in the deeds in which the exceptions are made. Eesort to the deeds conveying the excepted parcels is absolutely essential. It is well settled that, for the purposes of identification and certainty, resort may be had to a conveyance referred to in the. instrument containing the uncertain description. Daily v. Litchfield, 10 Mich. 29; Cronin v. Gore, 38 Id. 381; Fahey v. Marsh, 40 Id. 236; McAfee v. Arline, 83 Ga. 645; Weeks v. Martin, 10 N. Y. Sup. 656; Cannon v. Emmans, 44 Minn. 294.
The deed to Dorwood (F) expressly referred to the land as occupied by the grantee, and it was held in Fahey v. Marsh and Cronin v. Gore that, where the description in a deed calls for land “owned and occupied,” the actual line. of occupation is a material call to be considered in locating the boundaries. Neither Holland nor Mrs. Dorwood could be heard to say that the conveyances to them embraced land east of the monuments referred to in their deeds. The highway to which their grantors referred was made manifest and certain by monuments, courses, and distances given in the conveyances. The result of defendant’s contention would be to permit it to take lands lying between the highway defined in the Holland and Dorwood deeds and the highway sought to be established, and to cut off both tracts from the highway.
The surveyor who fixed the line in 1883 found two of the stakes referred to in the deed from Butler to Holland (A), — one of them at the south-east, and the other at the north-west, corner of that tract. In addition, the surveyor testified that Holland’s fence took substantially the course named in the deed (A), and that it made allowance for a highway along the east line of the inclosure. Old fences have always been regarded as strong and trustworthy evidences in ascertaining and fixing boundaries. Diehl v. Zanger, 39 Mich. 601; Twogood v. Hoyt, 42 Id. 609; Wilmarth v. Woodcock, 66 Id. 331; Beaubien v. Kellogg, 69 Id. 333. It was also shown that the area in the Holland inclosure was within one-tenth of an acre of the quantity named in the Holland deed (A), and that the line contended for by plaintiff gave to that part of the fractional section substantially the quantity of land named in the conveyances thereof. In February, 1841, Butler conveyed to John McNeil “the north fractional part of section 26, * * * containing 44 acres of land, reserving the land between the ro'ad and the lake for fishing.” The deed from Butler to Beers gives the quantity thereby conveyed at 50 acres, and the quantity conveyed to Holland is stated at three acres, making the total acreage given in that part of the section lying west of» the road 97 acres. Paldi, who made the survey for the cemetery board, and whom plaintiff called, computes the acreage west of the line fixed by him at 96.9 acres. The starting point of the surveyed highway is found. The post at the southern terminus is lost. All the intermediate finger posts, except “ a rill,” are gone. Two surveyors disagree materially as to the courses. In such case, quantity becomes a material consideration. Winans v. Cheney, 55 Cal. 567; Hanson v. Township of Red Rock, 57 N. W. Rep. 11.
Again, the recorded maps or plats (2 and 3) show a street or roadway to the east of the lots, and a margin between the street and the lake, extending from the north line of the McNeil tract southerly to the Lighthouse Reserve, which street is a continuation of the way indicated by description in the Holland deed (A). The survey of the highway was made in December, 1837. Plat 2 was recorded in October, 1838. Plat 3 was recorded in December, 1841, and locates the street on the same lines as does the second plat. The deed to Holland (A) is dated July 19, 1840.. The deed from Butler to Beers (B) and the deed from Butler to Bard and others (C) are dated in February, 1841. The deed from Howe to Mrs. Dorwood (F) is dated June 9, 1873.- The deed from Hoffman to defendant is dated February 6,-1877. What constituted Fishery No. 1, excepted in the last-named conveyance, is made certain by reference to other conveyances. The highway survey antedates the plats; the first plat antedates the deed to Holland; and both plats antedate the deeds of the parcels the boundary line between which is in dispute, as both deeds in terms refer to the second plat. These facts respecting the plats and the determination of the boundary lines of the Holland and Dorwood tracts were not disputed, and the jury should have been instructed that the description in the deeds referred to a highway so located, and that they would not be justified in finding that reference was intended to a highway from 50 to 70 rods east of that line so fixed, or to any other highway than that specifically indicated. There is no evidence in this record tending to show that, when the conveyances A, B, and C were made, there was any other road actually located upon the ground or cut out, or to which travel was confined, or that had such a character as a highway that it might be treated or adopted as a boundary line, and held to control a recorded survey or plat. Much less could a shifting way be allowed to control a boundary line definitely fixed by monuments referred to in the conveyances. Nor do we think that the use of said highway subsequent to that time, including, as it did, travel up to the line fixed, was such as to locate definitely any other highway line which can be held to control the recorded highway survey. If it be true that, in the resurveys alleged to have been authoritatively made in 1843 and 1854, the line through section 26 was not changed, that fact would negative any intention on the part of the authorities to recognize any change in the course or location of the road; and the further fact that as late as 1873, at the time of the conveyance to Esther Dorwood, the line as then fixed conformed to thatJ referred to when A, B, and C were made, would indicate clearly that there was no recognized change in the location of the highway.
Respecting the line of the highway north of the Dorwood tract, the parties must be held to have referred to a highway which was a continuation of the highway as defined south of that point. In view of the existence of the survey when the conveyance to Holland was made, the short time that elapsed between the date of the survey and that conveyance, the plats locating the situs of the highway, and the fact that no road had been actually cut ■out or otherwise definitely located upon the ground, it must, we think, be presumed that the road referred to was the surveyed road, and that the line of said road as indicated by the plats and stakes was the surveyed line, as understood by the parties to the conveyances in which the road is referred to as a boundary. That line was fixed at a time when no dispute had arisen. Up to the time of the conveyance to Mrs. Dorwood, and up to the time that the fence was erected, in 1883, the line thus indicated seems to have been unquestioned. Although the travel had been of a fugitive character during the entire period, and resurveys had been made by the authorities, yet no change had been made in the survey of the line in question. While these circumstances may not, as a matter of law, be conclusive as to the correctness of the location of the line of the highway, yet they are trustworthy •evidences to be considered by the jury, and tend to corroborate Paldi's resurvey.
Mr. Rogers, in his survey, seems to have started out with the assumption that the magnetic declination named in the survey of 1837 was the correct one; and although it carried him across the meander line, and out into the lake, at a point nearly three miles north of the southern terminus of the survey, and kept him there until, when he reached 26, he was 40 rods-east of the meander line, and from 50 to 70 rods east of the line fixed, by description and plat and stakes, at or shortly after the time that the survey was made, and although 'the plats extended such highway beyond the southern terminus of the surveyed highway, he made no effort to reconsider the assumption with which he started out, or to harmonize his resurvey with conditions which seem to have existed for over 50 years. As contended for by plaintiff, we think that the presumption is that the highway as surveyed was within the government meander lines. In any event, the boundary line as indicated by the courses given in the Holland deed, the stakes referred to in that deed and in the Dorwood deed, the fences inclosing the Holland and Dorwood tracts, and the line of the highway as fixed by the plats, is the boundary that must control, and this upon the principle that a supposed boundary line, long acquiesced in, is better evidence of where the real line should be than a survey made after the original monuments have disappeared. Stewart v. Carleton, 31 Mich. 270; Diehl v. Zanger, 39 Id. 601.
With reference to the line north of the Dorwood tract, as already intimated, the parties must be held to have referred to a highway which was a continuation of the highway as defined south of that point; and the location of the lines extended must be determined by following from that point, northerly, the courses given in the recorded survey within the limits of the section.
Plaintiff also made the claim of title by adverse possession, and complains of the instruction that if Holland's possession was not in hostility to, but in recognition of, Suffern's title, and he held under Suffern, as a tenant or by his permission, then such possession would not be a sufficient one upon which to found an independent title. This instruction was erroneous. Defendant does not claim through Suffern. Holland's possession, as tenant of Suffern, was the possession of the latter; and plaintiff, having acquired that title, could tack possession under it.
The judgment muát be reversed, and a new trial ordered.
The other Justices concurred.
Suffern was claimed to be the survivor of the grantees named in the deed C, which created an estate in joint tenancy. | [
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McGrath, O. J.
The Independent Order of B’nai B’rith is a fraternal organization. Defendant is one of a number of subordinate organizations known as “ district grand lodges,” Jiaving authority to institute lodges,»and exercising certain independent powers not in conflict with the laws promulgated by the parent organization. Each district grand lodge has jurisdiction over certain lodges in its district, and each district seems to have carried on, within itself, entirely independent of the parent organization and also of the other districts, -a system of insurance on the assessment plan. Applications for membership in the order are made in writing to the local lodges, in which the applicant is required to state his age, residence, etc. Certain past officers of the local lodges become members of the district grand lodge of that district, with the right to sit .and debate, but without the right to vote. Each lodge'in the district elects a representative to its district grand lodge, and that body, so constituted, legislates for the district. In case of the death of a member of a lodge, that lodge reports such death to its district grand lodge, and the amount is assessed, upon a per capita basis, upon each lodge in the district in proportion to the endowment members in such lodge. The funds are forwarded to the district grand lodge, and paid by it. No. certificates or policies are issued.
The defendant is incorporated under the statutes of Illinois relating to “ corporations not for'pecuniary profit.” The act* (Laws of 1874, p. 74) provides that—
“ Associations and societies which are intended to benefit the widows, orphans, heirs, and devisees of deceased members thereof, and where no annual dues or premiums are 'required, and where the members shall receive no money as profit or otherwise, shall not be deemed insurance companies.”
In Rockhold v. Benevolent Soc., 129 Ill. 440, the Illinois court held that, while the language quoted from the act was f‘in form expository,” yet the powers of the corpora tion were defined and determined thereby. The same court, in Association v. Blue, 120 Ill. 121, held, under a similar statute, that the language conferred the power on a member to name any stranger as a beneficiary.
The parent organization has a constitution, which is known as the “Constitution of the I. O. B. B.” This constitution contains no reference whatever to the endowment feature. The-articles of association of the defendant body were filed January 27, 1878, and are as follows:
“We, the undersigned, Charles Kozminski, Herman Felsenthal, Adolph Loeb, and Philip Stein, citizens of the United States, propose to form a corporation under an act of the general assembly of the state of Illinois entitled cAn act concerning corporations/ approved April 18, 1872, and that for the purpose of such organization we hereby state as follows, to wit:
“1. The name of such corporation is District Grand Lodge No. 6, I. O. B. B.
“2. The object for which it is formed is the practice of charity, and the promotion of humanity and enlightenment, in harmony with the constitution, laws, and tenets of the Independent Order of B’nai Bhith, the performance of all acts believed to accomplish these ends, and the securing to widows, orphans, heirs, and devisees. of deceased members of said order in said district No. 6 an endowment in accordance with the laws of said grand lodge. Said corporation is not, and shall not be, for pecuniary profit.
“3. The management of the aforesaid district grand lodge shall be vested in 11 managers, who are to be elected annually. .
“ 4. The following persons are hereby selected as the managers to control and manage said corporation for the first year of its corporate existence, viz.: Charles Kozminski, it. Reichman, D. M. Amberg, Philip Stein,- B. H'. Seligman, Adolph Loeb, E. Rubovits, S. Benjamin, David Adler, Samuel Glickauf, and John M. Levy.
“5. The location is in the city of Chicago, in the county of Cook, state of Illinois.”
The defendant body has, .however, what is termed a “ Constitution,” two sections of article 10 of which are as follows: Section 6 provides that—
“The widow of a member in good standing shall be endowed. If there be no widow, all his children shall be endowed. If there be no widow or such children, or parent or parents, then the endowment shall go to the reserve endowment fund, unless such member shall have formally designated a beneficiary or beneficiaries in a book to be kept for that purpose by the lodge, recording therein in his own handwriting, or causing the same to be done at his request, before two witnesses,- the name of such beneficiary; but the testamentary disposition of the endowment, brought to the notice of the trustees, shall be respected and carried out by them, provided that such testamentary disposition be confined to the children, parents, brothers, or sisters of the deceased brother in good standing, or to the reserve endowment fund.” '
* Section 9 provides that—
“ Any applicant for membership -above the age of 45 years, if elected a member, shall be excluded from the benefit of the endowment law, and be under no obligation to comply with its requirements: Provided, that this section shall not apply to applicants for membership by card.”
A lodge of this order was instituted at Grand Rapids, June 6, 1875. The by-laws of the lodge contain no reference to a will book, nor to the age of applicants, except that candidates for membership must be 21 years of age, nor do they intimate who may or who may not be beneficiaries. Section 1 of article 9 provides that—
“ The fees for candidates for membership shall be sixteen dollars, of which five dollars shall be paid on application, ten dollars for degrees, and one dollar to be sent to D. O. L. for endoioment fund.”
While, under the constitution of the parent organization and that of the district grand lodge, two classes of members were possible, viz.: (1) Members having received degrees, and entitled to all rights and benefits except participation in the endowment fund; and (2) members entitled to all the rights and benefits of the first class, and also the right of participation in the endowment fund, — yet the by-laws of the Grand Bapids lodge contemplated but one class, and that the latter.
Solomon Wolf, plaintiff’s intestate, who resided at Saugatuck, made a written application to said lodge for membership July 11, 1875, was elected, received the degrees, and continued to be a member, paying dues and assessments as a benefit member, until his death, in July, 1880. He was never married, and died intestate, leaving no father or mother surviving him. He left a sister who at the time of his death resided in Germany, where she continued to reside until her death, in 1890; a brother, Jacob Wolf, who resided in Grand Bapids; and a sister who resided in Ohio. Plaintiff, a nephew, as administrator and as assignee, brings this suit to recover the death benefit. The" defendant insists:
1. That the 10-years statute of limitations, which was pleaded, had run.
2. That decedent was 51 years of age when he became a member, and was therefore ineligible.
3. That decedent had made no designation in the will book, as provided in the constitution, and left no will.
As to the first point, one of the parties entitled to the fund resided in Germany when the cause of action accrued, and continued to reside there until she died, in 1890. Under How. Stat. § 8718, the statute did not begin to run until her death. At her death, her interest, under our statute of distributions, would go to her brother and sister, whom plaintiff represents.
Upon the second point, it is conceded that plaintiff’s intestate was 51 years of age when he became a member. It appears that decedent and his brother, Jacob Wolf, were solicited to become charter members of fhe lodge. Jacob became a charter member, but Solomon made written application for membership a month later. His application was referred to a committee, who reported favorably, and he was admitted. This application was not produced, or its absence accounted for. In its absence, it must be presumed that, in conformity with the requirements of the by-laws, it contained a statement of the age of the applicant, and that the age was therein correctly given. When decedent appeared for initiation on August 8, 1875, he was required to sign, and did sign, a “declaration,” the material portion of which is as follows: .
“On this 8th day of August, 1875, appeared Mr. Solomon Wolf for initiation in our Grand Rapids Lodge No. 238, I. O. B. B., and, having been instructed to make true answers to the questions which he would be asked,, made the following declaration: My name is Solomon Wolf. I am 44 years old. I reside art Saugatuck. I am by occupation a merchant. I am not married. I am in good health. Am not aware of having any sickness or bodily infirmity. I have read the constitution of the I. 0. B. B., and the by-laws of Grand Rapids Lodge No. 238, and am willing to obligate myself to observe the constitution, laws, and rules of the order faithfully.”
The body of this declaration is written in English, and is in the handwriting of the secretary, and the testimony tends to show that decedent could neither read nor write the English language. The material out of which this lodge was constructed was collected by officers of the defendant body. It is conceded that such officers, so collecting the material for the lodge, held out to the persons applied to by them that the organization was a benefit organization, providing for ’$1,000 at the death of its members, and that age was no bar to admission in the organization of lodges; that both decedent and his brother were urged to join as charter members; that the requisite number for the formation of a lodge was 20; that but 17 had been secured when the lodge was instituted; that decedent was not named in the charter; that decedent's brother became a charter member; that he was 49 years of age at the time; that Jacob was told that his age was not a bar; and that he gave his correct age at the time, bat in the declaration which he signed his age was given at 44 years. The testimony tends to show that, at the institution of the lodge, the charter members were informed for the first time that the constitution excluded from participation in the endowment fund all above the age of 45 years, but that in the formation of lodges they did not observe this limitation; that the committee to whom decedent’s application was referred called upon Jacob Wolf to make inquiry concerning the applicant, and Jacob informed the committee that Solomon was over age; that both Jacob and Solomon were well known, not only to the charter members of the lodge, but to the officers who instituted the lodge; and that the fact that' decedent was upwards of 45 years of age was known to the charter members generally.
After the death of Solomon Wolf, the lodge at first ordered the assessment. They afterwards countermanded the order, and again directed the assessment to proceed; and the assessment was accordingly made and collected. The officers of the defendant body, before payment, made inquiry as to why the order for the assessment had been countermanded, and the reasons given were that the decedent had made no will or will-book designation, and a question had arisen as to the age of the applicant at the time of his admission. At the next session of the district grand lodge an investigation was instituted, and at the following session certain preambles and resolutions were adopted, reciting and resolving that—
\ “Whereas, it appears that on various occasions the officer instituting lodges has represented to certain applicants for membership (charter members) that .their age was no bar 'to the benefits of the endowment law of this district, and that they were entitled to the rights and privileges thereof by virtue of their being charter members; and
“ Whereas, under such representations, a number of applicants who were above the age of 45 were so initiated and admitted as members; and
“Whereas, many of the members so admitted paid, and continue now to pay, the assessments levied under the endowment law; and
“Whereas, we believe that under these representations the members so initiated and paying have a full and just claim to the benefits of said endowment law:
“Therefore, be it resolved that Jacob Wolf, of Grand Rapids Lodge No. 238 [and 23 other members of lodges in the district], be, and are hereby, entitled to all rights, privileges, and benefits of article 10 of the constitution, known as the ‘Endowment Law/ they having been above the age of 45 when initiated to the contrary notwithstanding; e* * * and the grand secretary shall ■enroll their names upon his record of members entitled to the benefits of article 10 of the constitution of District Grand Lodge No. 6.”
Prior to this action, the grand lodge had sent out a ■circular letter to each of the lodges in the district, asking what charter members had been admitted who were over the age of 45 years, and the circumstances under which ■admitted. Grand Rapids lodge reported as follows:
“ The only case in our lodge coming within the terms .cf the letter is that of Brother J. Wolf. On investigation, we find the facts and circumstances surrounding the same to be as follows:
'“Brother Wolf joined our lodge as a charter member, and did so join at the sjjecial instance and request of the .grand- lodge installing officers; that one of the inducements to join our lodge held out to Brother Wolf by the installing officers was the endowment benefit, which they assured him all charter members were entitled to; that, at the time of making his declaration, Brother Wolf truly .and correctly stated his age to the two installing officers, but they stated it in his declaration to be 44 years; that Brother Wolf probably, knew of their so stating it at the time,- but it was so inserted by their directions; that Brother Wolf acted in entire good faith, sought to conceal nothing, and made no attempt to defraud the lodge or order; that Brother Wolf was at the time ignorant of the terms of our endowment law; that he had always been treated as an endowment member, and has always been in good standing, and now insists that he should he acknowledged as an endowment member, and entitled to the endowment benefit.”
At the same session of the district grand lodge at which this action was taken, that body declined to pay the death claim in the present case. The committee reported upon both matters as follows: .
“In regard to the overaged charter members referred to in the president’s message and the secretary’s report, your committee, in consideration of the established fact that those members have joined the lodges under the representations of the installing grand lodge officers that they would be entitled to the benefits of the''endowment, recommend that they should be entitled to all the rights, privileges, and benefits of article 10 of the constitution, known as the f Endowment Law.’
“In the matter of the deceased Brother Solomon Wolf, of Grand Bapids Lodge No. 238, after whose death assessment was levied on the lodges, and which money is at present in the hands of the district grand lodge-/ because there are no legal heirs to the same, your committee recommends that it should be used as payment of the next assessment.”
A substitute for the first paragraph of the report was adopted, and the recommendation contained in the second paragraph was concurred in by the district grand lodge.
While it is true that the question of decedent’s age was discussed at length, yet the defendant body, after a full knowledge of all the facts, put the refusal to pay not upon that ground, but upon the ground that no beneficiary had been designated by plaintiff’s intestate. Defendant is estopped from asserting any other defense after suit brought. Towle v. Insurance Co., 91 Mich. 219.
Upon the third point raised, it appears by the journal of the proceedings of the defendant body that in 1875, at the time of the adoption of the constitution, and while it was under consideration, a motion was made to substi tute for section 2 of article 10,- as reported - by the committee on legislation, the following:
“ The trustees shall pay to the widow, or, in absence thereof, to the legal representatives, of a deceased brother in good standing, the sum of $1,000. They shall assess-this sum ‘pro rata ’ among all the members of the district-who are amenable to the endowment act', as reported to-the G-. S. previously. Such pro rata assessment shall not be made in fractions of less than five cents, any excess over $1,000 to be paid into the reserve fund.”
The motion prevailed, and the constitution, including said substitute, was adopted. The constitution, as after-wards printed in the proceedings by the secretary, does not contain the substitute. As the case was taken from the jury at the close of plaintiff’s proofs, no explanation is made of the situation. If this substitute section is to be treated as a part of the constitution, there is an irreconcilable conflict between it and section 6 of jhe same article, as above given. , The well-established rule is that, when the charter or by-laws of a mutual benefit society contain two inconsistent provisions, that most favorable to the insured will be adopted. ■ Nibl. Mut. Ben. Soc. §§ 15, 172; Insurance Co. v. Hazelett, 105 Ind. 212; Supreme Lodge v. Abbott, 82 Id. 1; First Nat. Bank v. Insurance Co., 95 U. S. 673; Burkhard v. Insurance Co., 102 Penn. St. 262.
We do not think, however, that the provisions of section 6 of article 10 of the constitution can be sustained. In the first place, the section undertakes to restrict the member in his choice of a devisee. The statute under which defendant is organized, and its articles of incorporation, under the Illinois cases hereinbefore referred to, clearly entitle the member to devise the fund to any person, although not of any of the classes named. See, also, Raub v. Association, 3 Mackey, 68. In the next place, no designation in the will book is necessary if the member leaves a widow or children, or parent or parents. In Supreme Lodge v. Nairn, 60 Mich. 44, a certificate or policy was issued, in which the beneficiary was expressly named, and the constitution provided how a change in that contract should be effected. Suppose, however, that in such a case the beneficiary had died before the insured, and the latter had neglected to make a new designation, would it be contended that the policy had lapsed, and that the heirs would not take? Mich. Mut. Ben. Ass’n v. Rolfe, 76 Mich. 146. In that case it was held that, there being no beneficiary named in the certificate qualified to take, and as the deceased had no family, the fund was payable to his heirs. In the present case it is not claimed that the endowment contract lapsed, but the constitution undertakes to name a beneficiary not a member of any class named in the statute or articles of association. In no sense can the association itself or the reserve fund be said to be a devisee. The relations between the insured and defendant respecting the endowment fund were purely contractual. The position of the defendant is that the heirs, although clearly within the terms of the statute, cannot take in the absence of a devise; but that it, although not within the contemplation of the statute, may take, by virtue of the contract and in the absence of a devise. This contention cannot be sustained. A devise is essential to support the claim of the society to the fund. It is well settled that no person not of the class for whose benefit the association is authorized can be a beneficiary. Mich. Mut. Ben. Ass’n v. Rolfe, supra. In Dietrich v. Association, 45 Wis. 79, an assignment of the insurance to the society, to secure an indebtedness to it, was held void. The court say:
“ The action of the company in these respects was with out lawful authority, and in violation of its charter, which f limits and restricts ’ its business to insurance of lives for the sole benefit of certain special classes of beneficiaries.”
In the absence of a devise or designation, the heirs take, under the rule laid down in the Eolfe case.
The court erred in directing a verdict for defendant. Under the case as made, a verdict should have been directed for plaintiff. The judgment will therefore be reversed, and judgment entered here for plaintiff, with costs of both courts.
Long, Grant, and Hooker, JJ., concurred. Montgomery, J., did not sit. | [
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Long, J.
This is an application for mandamus to compel the respondent company to pave between its rails aud tracks, and to pave 12 inches outside its tracks, within a certain district in the city of Benton Harbor.
The respondent corporation was organized under the laws of this State in 1881, and in that year obtained a franchise from the village of Benton Harbor (now a city), and operated a horse railroad up to the year 1892. On April 26, 1889, the common council of-the village of Benton Harbor passed an ordinance authorizing a double track in certain portions of the village, and requiring the respondent company to plank, macadamize, or gravel the space between the tracks and between the rails of each track, and to place guard planks or macadam on the outside of the outer rail of each_track 12 inches in width, and to keep the whole in good repair. This ordinance was accepted by the respondent company, and it claims that it •, was passed with the ■ understanding that electric power might be used, but this fact does not appear in the ordinance. On June 5, 1891, the village of Benton Harbor became incorporated as a city, under that name. On December 12, 1891, the respondent company petitioned the city council to pass an ordinance authorizing and permitting it to substitute and use electricity as the motive power. The council, on that same evening, passed a resolution which provided that the company be granted a franchise to operate its present system by electricity, subject to the terms and conditions of an ordinance to be approved by the city council and accepted -by the company. It is claimed that on December 14, two days afterwards, the respondent company accepted this resolution or ordinance. It is claimed by the respondent company that, in accepting this ordinance, it supposed the terms to be imposed contemplated the setting of poles, the stringing of wires, etc., and never supposed that they contemplated the paving of the streets between the tracks. On December 28, however, the council passed the ordinance, setting forth the terms and conditions upon which electricity might be used as a motive power; and, among the conditions, it was provided that the respondent should repair that portion of the streets and highways included between the rails, and not less than 12 inches outside thereof, and, wherever a double track should be used, that space lying between the tracks; and that, whenever any street in which tracks were laid should be paved by the city, the respondent company should pave its portion thereof as above described, with the same material, etc. On the day this ordinance was passed, the respondent company wrote the council as follows:
“Take notice that the St. Joseph & Benton Harbor Street Railway Company hereby repeats its acceptance of the ordinance granting to the street-railway company consent, permission, and authority to substitute and use elec tricity as a motive power upon its street railway in the city of Benton Harbor.”
This was signed by the president of the company.
It is contended by the respondent in the present proceeding that this acceptance had relation only to the resolution of December 12, and was sent before the ordinance of December 28 was actually passed, and had no reference to the terms-of that ordinance, requiring the paving to be done; and hence the respondent never accepted the terms of the ordinance, and cannot be compelled to pave between its tracks, etc.
The answer further sets out that in May, 1892, the respondent issued its bonds, secured by mortgage on all its property, for the sum of $150,000, with interest at 6 per cent., payable semi-annually, for the purpose of converting the road into an electric road, and for the payment of its floating debt, but that it was unable to raise sufficient money thereon, and on June 27, 1893, it gave a mortgage upon all its property for $200,000, securing 200 bonds of $1,000 each, bearing interest at 6 per cent, per annum, payable semi-annually, for the purpose of retiring the issue of $150,000 of May, 1892, and the payment of its indebtedness incurred in the extension and improvement of its road; that this mortgage was given to the Illinois Trust & Savings Bank of Chicago, as trustee, and the bonds were issued and sold to Iona fide purchasers, and are held principally in Boston, Mass.; that interest on said bonds for 1893 to the amount of $5,000 is due and unpaid, and that interest for 1894 for the six months ending July 1 is unpaid, and that said company has lost money every year since it began to operate by electricity; that it has no credit, and is unable to borrow a dollar; that within the last six months its officers have endeavored to procure loans on the credit of the company in St. Joseph, Chicago, and Benton Harbor of banks and capitalists having money to loan, and have been absolutely refused. A statement of the receipts and expenditures is set out, showing a deficit for 1892 of $5,516; for 1893, a deficit of $10,760; for the months of January to September, inclusive, of the year 1894, a deficit of $2,846; and also showing a judgment against' the company of $1,725, in addition to taxes now accrued and unpaid, — all of which shows a shortage from January 1, 1892, to October 1, 1894, of over $20,000. Some claimed equitable defenses are also set up in the answer.
No issue is asked by the relator, and the statement of facts contained in the answer must be taken as true.
We shall not discuss or determine in this proceeding the question as to whether the ordinance of December 28, 1891, was ever accepted- by the respondent company, or the claimed equitable defenses. The mandamus must be refused, however, on the second ground set forth in the answer. It appears by the answer that the officers of the company, in the financial straits in which it is placed, cannot procure funds to do the paving; that it is an utter impossibility to do what it is asked to have done; that it cannot pay the current expenses; and it is clear that a writ of mandamus will not issue to compel the performance of an act when it is apparent that the parties against whom it is to be directed have no power to comply therewith. As was said in Silverthorne v. Railroad Co., 33 N. J. Law, 176:
“ Of course, it is obvious that a return which shows a legal impossibility to do what the writ directs must, in the nature of things, as a general rule, be good; and, consequently, a want of funds and an inability to procure them will, for the most part, be a legal answer to the precept of the court requiring cause shown why certain moneys should not be paid.”
This rule was recognized in Railway Co. v. People, 120 Ill. 200. It was said:
“It is an admitted fact that the road is greatly out of repair, * * * but the answer shows that the company has neither the funds, nor the means of raising them, which are required to put the road in a safe condition. Now, while the matter thus set up in the answer-no more exonerates the company from the duties which it owes the public than the inability of one to pay his honest debts would relieve him from his legal liabilities to his creditors, yet it does show a conclusive reason why mandamus is not a proper remedy in the case; for no principle of law is better settled than that the writ should not be granted in any case where it is clear that it would prove unavailing; as where the act sought to be enforced is, from its very nature, physically, impossible, or where, from extrinsic causes, it has become so, or where performance, though not absolutely impossible, is from any cause not within the power of the defendant. But whatever the ground may be, whenever it is apparent that the defendant is unable to perform the act sought to be thus enforced, the writ, as a general rule, will be denied,” — citing People v. Railroad Co., 55 Ill. 95; People v. Lieb, 85 Id. 484; People v. Trustees of Schools, 86 Id. 613; Cristman v. Peck, 90 Id. 150; People v. Hatch, 33 Id. 9.
It was further said in that case:
“ If, as seems to be the case, the defendant is wholly unable to discharge the duties it owes to the public, and which the law has imposed upon it, a proceeding in the nature of a quo warranto is the proper remedy, and not mandamus.”
See, also, People v. Railroad Co., 58 N. Y. 152; People v. Hayt, 66 Id. 606.
It is a general rule that a writ of mandamus will not issue unless it clearly appears that the person to whom it is directed has the absqlute power to execute it. Turnbull v. Giddings, 95 Mich. 314; Corby v. Durfee, 96 Id. 11; City of Port Huron v. Jenkinson, 77 Id. 414; Merrill, Mand. § 76.
We are satisfied, from the return made to the order to show cause, that mandamus is not the proper remedy in the present case. It is shown that it is impossible to borrow or otherwise raise the money to pay for the paving; and it would be futile to make the order, as the parties could not be punished for contempt in disobeying it. The city is not without its remedy, but mandamus is not the proper one.
The writ must be denied.
The other Justices concurred. | [
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Long, J.
This action was brought to recover damages for an injury received by plaintiff by a fall. upon a sidewalk, which it is claimed was not in a safe condition for travel. The declaration did not contain any allegation that the claim had been presented to the common council, and notice was attached to the plea that defendant would insist that the claim had never been presented for audit and allowance, as required by section 17, chap. 5, of the charter of the city of Detroit. At the opening of the trial in the court below, objection was made to the introduction of evidence in the case for that reason. This objection was overruled, and the testimony admitted. At the close of the trial, defendant’s counsel requested the court to charge that, inasmuch as the claim had not been presented to the common council, verdict must be for defendant. This was refused. Plaintiff had verdict and judgment. The refusal of the court to give this request presents the only question for consideration.
The provisions of the charter referred to are as follows:
“ The common council shall audit and allow all accounts chargeable against the- city, but no unliquidated account or claim or contract shall be received for audit or allowance unless it be accompanied with an affidavit of the person rendering it, to the effect that he verily believes that the- services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just; and that, to the best of his knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as are included or referred to in such account or claim.
“It shall be a sufficient bar and answer to any action or proceeding in any court for the collection of any demand or claim against said city that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without -said affidavit and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it.”
Counsel for defendant claims that, under these provisions of the charter, no suit can be commenced or maintained against the city of Detroit, in this class of cases, until the claim shall have been presented to the common council, and it shall have had reasonable time to investigate and pass upon it. Our attention is called by counsel for defendant to -the language of these provisions, and it is contended that there is a distinction between them and those of the charter of the city of Adrian, which were passed upon in Lay v. City of Adrian, 75 Mich. 438.
The Adrian charter is as follows:
“ The council shall audit and allow all accounts chargeable against the city, but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with an affidavit of the person rendering it, to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just; and that, to the best of his knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as are indorsed or referred to in such ' account or claim. And every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each.
“It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city, that it has never been presented, verified as aforesaid, to the council for allowance, or that the claim was presented without the affidavit aforesaid, and rejected for that reason, or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”. Local Acts of 1887, p. 158, § 112.
It is said in reference to this Adrian charter that, reading the last paragraph in connection with the first, it is apparent that the last clause made the omission to present ■claims a bar to suits only in cases -where the claim was required to be verified by affidavit, as provided by the first ■clause, and that the second paragraph of the Detroit charter is much broader in its scope; that, by it, it is apparent that there was in the minds of the lawmakers a class of ■claims which were not embraced within the terms of the first paragraph, which was intended to relate only to unliquidated claims or contracts; that, by the second paragraph, all claims are barred unless first presented to the council, and claims on contracts are barred unless accompanied with the affidavit; that, by this paragraph, distinct, separate provisions, which are complete in themselves, are made, without reference to the first paragraph, except as to contracts requiring said affidavit, while in the Adrian charter the only claims barred are such as are required to be “verified as aforesaid.”
The language of the Detroit charter is essentially different from that of the Adrian charter, passed upon in Lay v. City of Adrian, supra. The Detroit charter expressly refers to unliquidated claims; and while it provides, in the first paragraph of the section referred to, that no unliquidated account or claim or contract shall be received for audit or allowance unless it be accompanied with an affidavit, and then proceeds to recite what the affidavit shall contain, the next paragraph expressly provides that it shall be a sufficient bar and answer to any action for the collection of any demand or claim that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without said affidavit, and rejected for that reason. The last paragraph embraces claims to which the requirements of the affidavit recited in the first paragraph have no application. It is general, and includes any claim or demand not presented to the council, and, in addition, any claim upon contract presented, hut not accompanied with the affidavit provided for in the first paragraph. In other words, it recognizes a class of claims which are not susceptible of verification in the manner prescribed, and requires all such claims to be presented, and then refers to claims growing out of contract, and requires that they be verified in the manner provided in the preceding paragraph. The second paragraph in the Adrian charter refers only to claims “verified as aforesaid;” and this Court, in the Lay case, held that a claim for injuries occasioned by a defective highway was not susceptible of verification according to the requirements of the first paragraph, and was therefore not within the. contemplation of the section. In other words, the Court held that the requirements of the affidavit which should accompany any and all claims indicated the character of the claims to which the section applied.
City of Detroit v. Michigan Paving Co., 38 Mich. 358, was an action founded upon a tort, where plaintiff had waived the tort and brought assumpsitj and this Court has in that case, it seems to me, construed this section as embracing all classes of claims against the city. Chief Justice Campbell there says:
“ By section 25, chap. 4, of the city charter of Detroit [which is compiler’s section 86 of the present charter, and the one here involved], all claims against the city are required to be presented to the council for audit or allowance, accompanied by affidavit -in case of contract.”
What is stated in that case as to the propriety of such a provision and the design of the statute is equally applicable to the present case.
In O’Neil v. City of Detroit, 50 Mich. 133, which was an action for injuries occasioned by a defective street, while' it was held that this question had not been raised in the court below, the case of City of Detroit v. Michigan Paving Go. was cited. Similar provisions have been held to apply to claims for the refunding of illegal taxes. Louden v. East Saginaw, 41 Mich. 18; Mead v. City of Lansing, 56 Id. 601; Crittenden v. City of Mt. Clemens, 86 Id. 220; Whitney v. City of Port Huron, 88 Id. 268.
It seems to me, therefore, that our own Court has settled this question in favor of the contention made by defendant, and that the judgment should be reversed, and a new trial granted.
Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit. | [
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Lons, J.
Plaintiff sued to recover of defendant for services in carrying the Air Line mail, on its arrival at Niles over defendant’s Air Line Division, from the depot of defendant to the post-office in the city. On the trial, plaintiff had verdict and judgment.
It is conceded that plaintiff had a contract with the government to carry the mails to and from the main line of defendant’s road, and that under that contract 'he carried these mails from August, 1885, to the time of .commencement of suit. It is also ‘conceded that plaintiff carried between the defendant’s depot and the post-office the mails that came and went' over the South Bend Division of the defendant’s road, and was paid therefor by defendant the sum of $5 per month.- It is also conceded that plaintiff carried’ between the defendant’s depot and the post-office all mails that came and went over the Air Line Division of defendant’s road. Under the postal laws of the United States, each .railroad company is bound to carry to and from the post-office all mails at terminal points of its road, while the government lets special contracts for such carriage to and from the stations along the line. The plaintiff claims that, while he was carrying the mails from the main line, he was not aware that it was the duty of the defendant to carry the Air Line mail, but, supposing it his duty to carry it under his contract with the government, he continued to carry it without charge, until he ascertained that it was the defendant’s duty to carry it, when he .ceased to do so, and was subsequently paid by the defendant to carry it. There is but little dispute as to the facts.
The court was asked by defendant to charge the jury as follows:
“The fact that the plaintiff did not know that the defendant was obliged to deliver at the post-office in said city of Niles and carry all mail from the post-office in said city of Niles to its trains on the Air Line Division of its said road, and because of such lack of knowledge this plaintiff did carry the same between the trains and post-office, would not give the plaintiff a right of action against this defendant for such service.
“An action will not lie to recover payment for voluntary service, any more than to recover moneys voluntarily paid out for another’s benefit.
“The proof in this case shows that no contract was ever made between the plaintiff and defendant to carry any mail at the city of Niles until December 29, 1891, and that the plaintiff, without consulting or advising with any authorized agent of the defendant, carried the said mail at the said city of Niles; and it was his duty to have advised some proper officer or agent of said defendant, in case the pay was not satisfactory to him, of such fact, and failing to do so, but receiving payment at $5 a month for carrying said mail, without reference to any particular mail, he is now prohibited from claiming any.
“The fact that the plaintiff in this case carried the mail to and from defendant’s depot that came off of and went over its Air Line Division, under a mistaken idea, or not knowing that the defendant was obliged to deliver it . and take it from the post-office, would not of itself give the plaintiff the right to turn round and bring this action against the defendant. '
“If the jury find that the plaintiff carried said mail from August 1, 1885, until January 1, 1892, or thereabouts, and had made no contract to carry the same, but did carry it without objection, and under the belief that it was part of his work in connection with the carrying of the other mail between the same points, for which he conceded he did get pay, and made no objection to it nor demand for payment all that time, he could not thereafter, upon learning that it was not part of his duty to carry said Air Line mail, turn round and recover, for receiving the same, from this defendant, and therefore your verdict should be for the defendant.
“The defendant pays its employés every month, and has pursued that system from August 1, 1885, until the commencement of this suit; and every employé, after receiving his pay, signs a receipt called the ‘ pay roll,' and such a receipt or pay roll this plaintiff signed, and drew his pay at $5 a month every month from said August 1 to January 1, 1892. Those pay rolls have been offered in evidence, and all read as follows: ‘Sums due for all personal services during the month of September, 1885.' Up to September they are printed, and the month left blank, to be written in as occasion may require. At Niles station, upon every month's pay roll of defendant, as above described, during all of the period of time for which .he brings suit and seeks to recover, appears the plaintiff's name receipting for all personal services and for carrying mail, without reference to any particular mail; and, as the plaintiff does not claim that there was any other or different kind of services rendered to deféndant,, he cannot recover in this case.”
These requests were refused, and the court charged the jury:
“While one person cannot recover for services rendered for another without a request, express or implied, yet, if one voluntarily takes the benefit of another's labor, the law will presume that the laborer is to be paid for his work, unless the contrary is shown by the evidence. In this case, if it was understood between the plaintiff and the railroad company that he was to receive $5 monthly for his services, and that said amount was to be full payment of his services for carrying all the mail, he did carry, he cannot recover, and your verdict should be in favor of the defendant.”
The requests were properly refused, and the charge, under the circumstances, presented the only question of fact in the case for the consideration of the jury. Counsel for defendant cite cases from whjch they deduce the following principle: No promise to pay for services is implied where circumstances fail to indicate that they were rendered or received for. compensation, but clearly repel the idea that payment was to be made or asked for. Undoubtedly, this is the correct rule. But in the present case the defendant had the benefit of the plaintiff's services. It permitted the services to be performed, and there is no such relation between the parties as would repel the idea that payment was intended. The company had the plaintiff’s services, and the law will presume that the work was to be paid for.- •
The judgment is affirmed.
McGrath, O. J., and Hooker, J., concurred with Long, J. | [
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] |
Long, J.
A decree was entered in the court below dismissing complainant’s bill, from which he appeals. The record returned here contains the bill, answer, replication, decree, and a claimed copy of the proofs taken in open court; but, as no case was settled as provided by statute, the proofs cannot be considered. The appeal will not be dismissed, but the case heard here on bill and answer/
A bill in equity is no. evidence for complainant; and where the case is submitted on bill and answer, and no exceptions are filed to the latter, relief must be based on the admissions in the answer; and, if it denies or does not admit any averment that is material to the prayer for relief, the bill must fail. Wiegert v. Franck, 56 Mich. 200. The answer was not sworn to, and the rule must be followed that a sworn answer to a bill in equity must be taken as true where the case is heard on bill and answer. Ruhleg v. Wiegert, 49 Mich. 399.
It appears that in August, 1893, a petition was made by the requisite number of freeholders to the defendant, as commissioner of highways, to lay out and establish a highway. The land to be taken may be seen from the plat on following page.
The commissioner served the proper notice of hearing, and, before the day of hearing, a protest was filed with him. On the day of hearings the commissioner made his order, in dne form, for laying ont and establishing the highway. This bill is filed to enjoifi the defendant from opening the highway, or taking any farther proceedings therein, or from interfering with complainant in the possession of his premises, which are proposed to be taken. The bill avers that the original petition for the laying out of the highway was procured by the false representations of Munsell and Walters, for whose accommodation, it is claimed, the highway was to be established, in that they represented that the‘road was a public necessity, and was to be opened for the public benefit, but that the whole expense was to be paid by Walters and Munsell, and that the road was to be only .two rods wide, and that Walters and Munsell had no way of reaching their land except by this road, and had been forbidden to cross those lands. It is also alleged that this highway is not a public necessity, and that Walters and Munsell- had permission to cross other lands to get to their own, and purchased said land with full knowledge of the situation. It is also claimed that the only proceeding which they could of right take is for a private road to their lands, and in which proceeding they would be compelled to pay the whole expense, as the road to be laid out is a cul de sac.
The answer admits the proceedings to lay out the highway, and asserts—
“That, in pursuance of said application and notice, defendant found the said highway necessary, and did determine and did lay out and establish a highway, as described in said bill of complaint, and that said highway was and is a legal and valid public highway, under the laws of the State, and that all the proceedings for' the laying out thereof have been regular and according to the laws of the State; that the said highway is a public highway, under the laws of this State, and is for the benefit ■of not only the said William Walters and Henry J. Mun-sell, but for all the inhabitants of this State; and that the application therefor was for a public highway, as appears by said application, and not for a private way or road; and that the freeholders who signed said application for said highway did so for the express purpose of having a public highway laid out; and this defendant denies that any false or fraudulent representations were made to any ■of said petitioners for said highway, and denies that any ■of said freeholders were told that the said highway was to be a private road, and not a’ public highway. He denies that any false or fraudulent representations were made to said freeholders or to any one; and this defendant says that the said William Walters and Henry J. Munsell had no way of reaching their said premises, or either of them, by any road; that, as this defendant is informed and verily believes, they had been in the habit of crossing the fields •of other adjoining owners from the public highway for some time, but had acquired no right of way across any •of the lands to the said premises; that, as he is informed .and believes, soon before the laying out of the said highway, the said Henry J. Munsell and William Walters had 'been, each of them, forbidden to any longer cross the said ■premises of others to their said lands; and this defendant .avers that all the said questions as to the necessity of said public highway, and the necessity of establishing and laying out the same, came before this defendant at the time of the laying out of said highway, and were passed upon by him officially, as said highway commissioner, and that this defendant also considered -the protest that was presented to him at the time of the laying out of said highway, and that the complainant and others were given ■opportunity by this defendant to make such objections, jpresent such protests, and make such showing as was legal in the matter, before the final determination of this defendant, as said commissioner, to lay out and establish said highway; that in said proceeding this defendant, as ■said highway commissioner, determined the question of whether said highway was the -.best and most feasible one for a highway to said premises, and determined that it was."
This answer must be taken as true, — that the laying out of the highway was a .public necessity, and that no false representations were made in procuring it to be laid put. It is admitted by counsel for complainant that, under certain circumstances, a cul de sac might be considered a public highway; but it is said that no such circumstances exist here, as it is for the private use of Walters and Mun-sell only. The answer denies this, and asserts that it is a public necessity, and the commissioner has so found in his order. There is no statute or rule of law that expressly determines that, before a public highway can be laid out, it must have certain and definite termini in other public highways.
We think the case is settled upon the facts set up in the answer, which are conclusive upon us.
The decree of the court below must be affirmed.
Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit. | [
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Montgomery, J.
This is an action of ejectment. The trial was had before a jury, and a verdict rendered for the plaintiff. The defendant brings error. The assignments of error are numerous, but have been carefully grouped by the appellant’s counsel, so that the questions may be dealt with under a few heads. The diagram on the following page will furnish an aid to an understanding of the points involved.
The record contains the substance of all the testimony, from which it appears that plaintiff derived title from the heirs of Laurie McLeod, to whom a conveyance was made by Eliza R. McLeod in 1862, Eliza R. McLeod being then in possession, and the apparent owner. The defendant claims title by adverse possession, and also claims that by a subsequent conveyance to him by Eliza R. McLeod of lot No. 293 the title passed to him, and in this connection contends that the deed to Laurie McLeod contained no sufficient description of any property, and that the record of the deed was, therefore, no notice to him of any right in Laurie McLeod.
1. In the course of the trial the plaintiff introduced a purported record of a deed from one Charles C. Grove and wife to Eliza McLeod. The record of this deed was objected to on the ground that, although the deed purported to have'been executed in New York, there was no seal attached to the certificate of the clerk of the court. The objection was a valid one, under the decision of this Court in Pope v. Culler, 34 Mich. 150. But the error was not prejudicial. If the deeds in plaintiff’s chain of title contained a sufficient description, he showed conveyances from one in possession for many years, and this was sufficient to establish a prima facie title, which is disputed in no way unless the defendant has acquired a title by adverse possession. Gamble v. Horr, 40 Mich. 561; Bennett v. Horr, 47 Id. 221; VanDenBrooks v. Correon, 48 Id. 283; Covert v. Morrison, 49 Id. 133; Cook v. Bertram, 86 Id. 356.
2. As the deed to Laurie McLeod was first recorded, and as defendant claims it in fact read when executed, the description of the land was as follows:
“Beginning on Market street, between the lot hereby intended to be conveyed and a lot confirmed by the government of the United States to Ambrose R. Davenport; thence north, 62 degrees 15 minutes west, 158.96 feet; thence south, 31 degrees west, 60 feet; thence south, 62 degrees 15 minutes west, 158.96 feet, to Market street; thence along said street north, 27 degrees 55 minutes east, to the place of beginning.”
' Was this a sufficient description, or must the deed be treated as a nullity? The starting point is definite. The first line, to point b, is also certain, as is the line between points b and c. But, if the direction of the next line is followed as given in the instrument, the terminus is at e, and the line named in the succeeding portion of the description would end at f. But the course given after reaching point c is not the only means of identification adopted. That line is described as terminating at Market street. If we exclude the words indicative of the direction <Jf the line, and carry the line in the most direct course to Market street, we have not only a line answering to the other terms of the deed, but one which, with its extension, incloses something, which is, by the terms of the deed, “a lot intended to be conveyed,” and which, to answer the terms of the portion of the description relating to the starting point, must lie next to “ a lot confirmed by the government of the United States to Ambrose R. Davenport.” To make this clearer, the deed contains the statement that from the terminus of the third line named in the description the boundary shall extend along Market street to the place of beginning. We think the intent of the grantor is clear, and that the deed is not a nullity for want of a sufficient description. See Anderson v. Baugh man, 7 Mich. 69; Cooper v. Bigly, 13 Id. 463; Dwight v. Tyler, 49 Id. 614.
A number of defendant's points depend upon this, and it becomes unnecessary to treat in detail some of his assignments of error. The deed being valid to convey the land, the record was notice to subsequent purchasers.
3. One of the conveyances under which plaintiff claims contained a description as follows:
“A lot 60 feet wide on Market street and 128.90 feet deep, being the north end of lot 293 in the village of Mackinac.”
This is claimed to be insufficient, but we think there is no mistaking the land intended to be conveyed.
4. As above stated, the defendant interposed the defense of adverse possession. In order to meet this, plaintiff was allowed to prove by one Ronald McLeod, in whose family one of the minor heirs of Laurie McLeod lived, that the defendant occupied the premises under an agreement made by him with said Ronald McLeod as an assumed representative of the minors, to the effect that defendant might occupy the land in question in consideration of his paying the taxes thereon. Complaint is made of this on the ground that Ronald McLeod was not shown to have had authority to act for the minors. But we think this fact immaterial. If the defendant in fact entered into the possession of the lands under such an arrangement as is claimed, he did not enter in hostility to the minor heirs, and for this purpose the testimony was admissible.
In the same connection it is urged that the agreement in question only covered the fenced portion of the premises, which was something less than the whole, another portion being used for a driveway. But while it is true that certain portions of the testimony might bear this construction, we think there is no mistaking the tenor of the agreement, or that it related to the land deeded to Laurie McLeod. The defendant’s denial did not relate to the question of quantity, but was absolute. His claim was that he had no notice of the conveyance to Laurie McLeod and occupied the whole of the land in question in hostility to plaintiff’s grantors, while plaintiff’s theory was that he had notice of this adverse right, and occupied in subordination to their title. The two theories were fairly submitted to the jury.
5. The court permitted an amendment of the declaration on the trial, narrowing the plaintiff’s claim. This could not have prejudiced the defendant, and was proper. Bringhurst v. Railroad Co., 78 Mich. 570, 572.
We think no error to the prejudice of defendant was committed.
The judgment will be affirmed, with costs, and the case remanded.
McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.
In the original declaration, plaintiff claimed title in fee to the entire premises described in the deed to Laurie McLeod. This description covered the northerly 60 feet of lot 293 (see diagram). The proof disclosed that the plaintiff was entitled to the entire of the easterly 128.90 feet of the description, and to an undivided two-thirds interest in the remainder, and an amendment of the declaration so as to conform to the proofs in this regard was allowed. | [
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McGrath, 0. J.
On the 4th of April, 1884,-plaintiff made written application to defendant for insurance upon the following property, and in amounts named:-
One dwelling-house............................... $275 00
Contents in same_________________________________ 300 00
One barn........................................ 175 00
Contents in same................................. 300 00
One tool house___________________________________ 75 00
Contents in same................................. 300 00
Stock on said farm, against lightning, in Kent county.......................................... 175 00
Total.........................................§1,600 00
—All situate on section 27, in the township of Bowne. On the same day a policy was issued describing the property as:
One dwelling-house............................... $275 00
On contents in same_____________________________ 300 00
One barn......................................... 175 00
On contents in said barn......................... 300 00
One tool house................................... 75 00
On contents in tool house........................ 300 00
On live stock, against lightning, in Kent county. 175 00
Total.........................................$1,600 00
On January 26, 1889, the defendant executed and delivered to said plaintiff, in pursuance of an application of the same date, a certain other contract of insurance, as follows, to wit:
On one frame granary.............................$100 00
On contents in said granary, or in stacks on farm. 600 00
Total increase...................................$700 00
On April 4, 1884, when said policy was issued, there were a barn and a tool house on said premises, being the ones mentioned in and covered by the policy of insurance of that date; and on the 26th day of January, 1889, there was a fr.ame granary on said premises, being the one mentioned in said contract of .increase. But the plaintiff afterwards considered that said tool house and barn had become unfit or insufficient for his purposes, and in 1891 commenced the erection of a new and larger barn on another part of said farm, which he completed in July, 1892, and in which he stored his grain from the harvest of 1892, and the tools, or a part of the tools, he then had and used upon said farm; and the new barn and said grain and tools therein stored as aforesaid were the ones destroyed by the fire mentioned in said declaration, which occurred, as therein stated, the 28th day of July, 1892. The old barn and tool house and said granary then stood, and still stand, on said premises, and they had contents therein at the timé of said fire. Plaintiff procured a policy of insurance on the new barn in the German Baptist Mutual Fire Insurance Company for the sum of $1,100, which sum was paid after said fire. Defendant had no notice of the transfer of the tools or the grain to said new barn, or of the erection of said barn; and the plaintiff had no insurance thereon, unless the insurance mentioned in the declaration, and as a part of defendant’s policy of insurance, covered the same. Said barn and its contents were destroyed by fire, caused by lightning, at the date aforesaid.
Plaintiff’s proofs of loss covered unthreshed wheat, hay, and tools and implements, all contained and stored in the new barn. Plaintiff insists that the terms "contents in barn” and "contents in tool house” covered the articles, wherever situate.
The old barn and old tool house were still in use. Plaintiff had obtained another policy, in another company, on the new barn. The policy in this case was not for any given term, but was to continue in force so long as plaintiff continued to pay his assessments and remained a member of the defendant company. The barn risk was a permanent one, but in respect of the contents of the barn and tool house the risk was not limited'to the contents on hand at the date of the policy, but was what is termed a " shifting risk,” and covered substituted property. The only language that can be looked to for a description of the property insured is that specifying its situation.
There is a class of cases which hold that the words “contained in” or “being in” or “stored in,” when used in a policy which is not a shifting policy, but which, independently of such terms, sufficiently describes property the use of which necessitates its temporary absence from the building, are considered as further description merely, and as indicating its place of deposit when not temporarily absent in«.the ordinary course.
In Everett v. Insurance Co., 21 Minn. 76, the property was described in the application as “stored in barn on,” etc., and in the policy as a “ threshing machine,” reference being made to the application for a more particular description.
In Holbrook v. Insurance Co., 25 Minn. 229, the property was described as “36 mules, all contained in,” etc.
In McCluer v. Insurance Co., 43 Iowa, 349, a phaeton was destroyed while in a carriage shop for repairs.
In Haws v. Fire Association, 114 Penn. St. 431, certain horses, “all contained in,” etc., were insui’ed under a policy containing a lightning clause. One of the horses was killed by lightning while at pasture in a field on plaintiff’s farm. The court say:
“It is true, in an insurance upon such personal property as household goods or a stock of merchandise, the words 'contained in a’ particular building would seem to imply that the property insured should remain in such building, and that, if removed therefrom, the policy would not cover it. But in such cases the contract contemplates that the property shall remain in the building, and there are obvious reasons why a change of location would afEect the insurance. The very nature of such property implies permanency in its location. But it is not so with a man’s horse. It is of no use to him if kept in a stable. We can understand that if, in. a fire policy, hay, straw, or grain is insured in a barn, the insurance would cease if removed to some other building. Such would be the reasonable meaning of the contract of insurance, and what the parties probably contemplated when they made it. But none of this reasoning applies to a lightning clause upon horses or other stock. The terms and conditions to which such an insurance is subject must be such as are reasonably applicable to such kinds of insurance upon this particular species of property, and such, therefore, as the parties may be presumed to have had in view when the contract was made.”
In Peterson v. Insurance Co., 24 Iowa, 494, the policy covered plaintiff’s seven horses, situated on section 22, etc. While marketing his grain, plaintiff put up at an hotel, and placed his team in the hotel barn, and one .of the horses was destroyed by fire.
In these cases the property was fully described without reference to the words describing its location, and, when destroyed, it was in a situation which from its very nature may well be deemed to have been within the contemplation of the parties at the inception of the policy. Lord Mansfield observed in Pelly v. Governor, etc., 1 Burrow, 341, that the insurer, in estimating the price at which he is willing to indemnify the insured, must have under his consideration the nature of the business, and the usual course and manner of conducting it, and everything done in the usual course must have been foreseen and in 'contemplation at the time he engaged, and that he takes the risk upon the supposition that what is usual or necessary will be done.
The rule has been extended by some authorities to cases where the policy has described a class of property and the risk a shifting one. In Longueville v. Assurance Co., 51 Iowa, 553, certain wearing apparel was burned while being worn.
In Noyes v. Insurance Co., 64 Wis. 415, a dolman was burned while at a furrier’s for repair.
In De Graff v. Insurance Co., 38 Minn. 501, the policy covered “ $3,000 on his wood barn; $2,500 on live stock therein.” The policy contained a lightning clause. A few weeks before the loss, plaintiff put one of the horses into a new barn, which had been built, where she remained until killed by lightning. The removal was alleged to have been but temporary. The court say:
“Words descriptive of location might, as to one class of property, or as to one kind of insurance, be treated as a statement of a fact relating to the risk, and as amounting to a stipulation or condition that the property should remain there; while as to another class of property, or as to the other kind of insurance, it might be construed as mere description for the purposes of identification. This action is to recover for the loss of live stock by lightning, and the language of the policy must therefore be construed as applied to insurance upon that particular species of property. The parties must be presumed to have known that danger from lightning exists almost wholly in the summer, when live stock is out in the fields. No man of common sense would take a policy of insurance against lightning which only covered his stock when in a particular barn. Such stock cannot well be, and is not usually, kept permanently in a building. The ordinary uses to which it is put forbid it; and the usual and proper treatment of it requires that' it be turned out to pasture about one-half the year at least. According to the usual course of farming operations, it is not customary to treat an animal, even when housed, as attached to some particular building, as a part of its contents, but to change its place of stabling from time to time, as necessity or convenience may require. The parties must be presumed to have had all these facts in view when they made this contract. If appellant’s contention be correct, this policy would not cover a loss occurring while the stock is out at pasture, during the summer, for that could hardly be called a ‘ temporary removal ’ from the barn for some temporary purpose incident to the ordinary use and enjoyment of the property. * * * Our conclusion is that the statement in the policy that the stock was in this barn is not a promissory stipulation on the part of the insured, or a condition of insurance on part of the insurer, that such location should remain unchanged, but as to that class of property, and as to that kind of insurance, at least, is mere matter of description for identification of the property insured, indicating that it was the stock which was usually kept in that barn at that time.”
In Insurance Co. v. Elliott, 85 Va. 962, the policy covered “ carriages, buggies, hacks, and harness ” in a building occupied as a livery and sales stable, and certain of the vehicles were in a repair shop when ' destroyed. But see Bradbury v. Insurance Co., 80 Me. 396.
In none of these cases, however, was the property described simply as contents of the building named, nor was the situs of the property (when not in use) permanently changed.
In Wildey v. Insurance Co., 52 Mich. 446, the policy covered “ personal farm property in buildings and on farm.” The by-laws of the company did not allow it to insure village property that was within 100 feet of other buildings. A horse was destroyed by fire while in the barn of a village hotel that stopd within 100 feet of other buildings. The Court in that case say that, where particular property is specified as covered by the risk, it may well be held covered though moved elsewhere, unless there are clear provisions to the contrary; but, where property is only insured as farm property, it may be so restricted as to raise very different presumptions. The defendant was, however, held not liable, on the ground that there could be no implied liability where an express undertaking was forbidden.
In English v. Insurance Co., 55 Mich. 273, the policy insured household goods, furniture, clothing, etc., “ all contained in his two-story frame dwelling-house and'additions, occupied as a residence.” A fire occurred, which rendered the house uninhabitable, and some of the household goods were removed to and stored in the barn. About a month afterwards the barn was burned, and it was held that there could be no recovery for the household goods destroyed in the barn.
In Association v. Kryder, 5 Ind. App. 430, the description was .precisely like that in the present case. The policy, however, contained a lightning clause. While approaching the barn with a load of wheat, two horses, which' were usually kept in the barn, were killed by lightning. The court held that the language “contents therein” referred to the contents at the time of the loss of the barn, and that there could be no recovery. In that case, however, the property insured was animate property; there was a lightning clause in the policy; the insurance of that class of property was contemplated, and-its use in the ordinary and usual course rendered temporary absence from the barn necessary; and it is unnecessary to follow the case. *
The general rule is that place and location is of the essence of the risk. 1 Wood, Ins. § 47; 2 May, Ins. §§ 401a, 4015. No case has been called to our attention as coming within any of the exceptions to the rule where the property has been described as household goods or stores contained in a certain dwelling, or as a stock of goods in a certain store, or as farm products contained in a barn, or simply as the contents of a dwelling, store, or barn, where the property consisted of articles having a permanent location for use, sale, or consumption, and its ordinary use did not involve the necessity for temporary removal. Again, every case presented has been one where the property has been destroyed while in a situation incident to its use, enjoyment, or repair. Nor has a case been suggested or found where the property has been permanently removed from the abiding place named in the policy, stored or kept elsewhere, and destroyed while in such new place of deposit. In Lyons v. Insurance Co., 14 R. I. 109, it was expressly held that a permanent removal of the property from the place where insured would withdraw it from the protection of the policy. To the same effect is English v. Insurance Co., 55 Mich. 273.
This disposes of the plaintiff’s claim for hay, tools, and implements.
Respecting the grain, the policy covers grain in the granary and in stacks. The term “stack” has a well-defined meaning, and cannot be said to include grain in a mow in a barn.
The judgment is therefore reversed, and a new trial denied.
Long, Grant, and Hooker, JJ., concurred. Montgomery, J., did not sit. | [
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Montgomery, J.
This is a summary proceeding to recover possession of real estate. The facts were agreed to on the trial before a jury in the court below as follows:
For two years and upwards prior to December 21, 1891, the defendant was a tenant at will of the Hungarian Copper Company, and occupied the lands in question as such tenant at will, and at an annual rent of $100. During the time defendant so occupied said lands as tenant at will under the said Hungarian Copper Company, he, the defendant, built the house mentioned and described in the complaint, and from the time he so built said house he and his family have occupied said house as a home continuously until the present time, and he has had and has no other home or homestead. On the 21st day of December, 1891, defendant assigned his interest in said lands by an instrument in writing, which, after reciting a consideration of one dollar and other valuable consideration, proceeded:
“I hereby transfer, set over, and assign to Henry Keronen all my farming rights in and to the following described lands, including all dwellings, barns, and other buildings thereon, with the right to enter and occupy the ■same, including all agricultural improvements, leases, and agreements of what kind so ever” (describing the lands).
This was signed by the defendant, but not by his wife. The assignment was assented to by the landlord, and Henry Keronen paid to the landlord $220 of back rent, and thereupon Keronen rnoved^ upon the premises, and •occupied said premises and a part of the dwelling mentioned -in the complaint from December 21, 1891, until December 19, 1892, when he sold to complainant. This •assignment was also in writing, approved by the agent of the lessor, and since its date complainant has paid the ground rent.
The contention of the defendant is stated in the bill of exceptions to have been that— .
“ The sale and assignment from the said defendant to-said Henry Keronen was made without the consent and signature of the wife of said defendant, and that the said defendant and his wife had, at the time of said assignment to said Henry Keronen, homestead interests and rights in said house,” “ which,” as is stated in the bill of exceptions, “is the only question of law involved in this-suit.”
The circuit judge held in accordance with the contention of defendant, and we think correctly. A lessee of lands-who erects a dwelling-house thereon, and actually occupies the lands, is entitled to a homestead exemption. Pelan v. De Bevard, 13 Iowa, 53; Conklin v. Foster, 57 Ill. 104; Johnson v. Richardson, 33 Miss. 462; Thomp. Homest. § 176; Smyth, Homest. § 117. It is said in appellant’s brief that—
“If the wife acquired homestead rights and interests in the premises by reason of her husband’s occupancy as-tenant at will, then these rights would be good against everybody, the Hungarian Copper Company not excepted. This would lead to a new and original way in acquiring; real estate, hitherto unknown.”
But the fact that- the wife acquired homestead rights as-against a creditor of or a purchaser from the husband does not impair the right of the landlord, under whom the husband held. The law only exempts the homestead from sale under execution, or from private ■ sale without-the concurrence of the wife, and does n'ot divest the right of the owner of the land, nor impair any remedy which the law gives him, Buckingham v. Buckingham, 81 Mich. 89.
Judgment is affirmed, with costs.
McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.
The defendant, after assigning to Keronen, continued to reside in one portion of the house, and when Keronen, who is the father-in-law of defendant, removed from the premises, defendant took possession of the entire house, and refused to vacate, and this proceeding was instituted. | [
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Long, J.
This bill is filed for the purpose of setting aside a deed executed by Julian L. La Moore and Anna La Moore, his wife, to Peter Keating, deceased, and to declare the title to the premises described in said deed to be in the complainant.
The complainant’s contention is that in November, 1887, she placed in the hands of Peter Keating the sum of $500, with which to purchase for her the lands described in the La Moore deed, and to have the' title vest in herself, or in Peter Keating as trustee for her; that Keating took the money, made the purchase from La Moore, and took the title to himself absolutely, without her knowledge or consent, and against her express directions and requests; that, after the deed was executed, Mr. Keating put it upon record, and afterwards delivered it to her, since which time it has been in her possession, but that while Keating lived she never examined the deed to see its ■contents, because during all that time no question as to her title was raised; that after the deed was executed she made substantial improvements upon the property, rented it, and collected the rents, and exercised all the- acts of ownership over it until the death of Keating, December* 31, 1890, when for the first time she learned that the deed was taken in his name absolutely, and that his heirs and representatives, the defendants in this case, disputed her title thereto.
On the hearing in the court below there did not seem to be any dispute but that the complainant furnishéd the money with which Peter Keating purchased the premises in controversy, but the defense was that the complainant well knew that Peter Keating took the deed in his own name, and that the absolute title to the premises, during his lifetime, vested in him, and that the complainant had noy right to relief, as she could not establish a trust in these lands by parol. The court below, after a hearing in open court, found that the complainant was entitled to the relief prayed, and decreed that the title should vest in her.
There are but two questions raised in this Court:
1. That, this suit being brought against the estate and the heirs of Peter Keating, now deceased, complainant could not testify to matters equally within the knowledge of the deceased.
2. That the grant being made to Peter Keating, and the title vesting in him absolutely, though payment therefor may have been made by complainant, under the statute a trust could not be shown hy parol evidence.
The complainant was called as a witness, and testified in the case to many matters which could not have been within the knowledge of the deceased, and as to those matters her testimony may be considered. As to the matters which were equally within the knowledge of the deceased, the rule is too well settled to need the citation of authorities that her testimony cannot be considered in determining the question involved here.
Upon the second point, How. Stat. § 5569, provides:
“When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no nse or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”
This section stands as section 7, chap. 214, entitled “Of Uses and Trusts.”
By section 5571, being section 9 of that chapter, it is further provided: '
“ The preceding seventh section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name without the knowledge or consent of the person paying the consideration, or when such alienee, in violation of some trust, shall have purchased the lands so conveyed with moneys belonging to another person.”
In Fisher v. Fobes, 22 Mich. 458, Mr. Justice Cooley, speaking of section 5569, says:
“This provision, however, must be understood as applicable only to those cases in which the deed has assumed the form it has by consent of the party- furnishing the consideration. It has no application to a case where one has taken a deed in his own name in fraud of the rights of another, nor to a case where, though no fraud was designed, the conveyance has been made to some person other than the purchaser without his consent.”
In McCreary v. McCreary, 90 Mich. 478, the same rule was laid down, Fisher v. Fobes being cited and approved.
It is therefore well settled in this State that if Peter Keating took the deed with the understanding with complainant either that it was to be executed to her, or to himself in trust for her, and then, without her knowledge or consent, and against her express directions and requests, took the deed in his own name, a court of equity will, upon proof of these facts, decree the title to be in the complainant.
We think that the testimony abundantly shows, without considering the testimony of the complainant relating to facts which were equally within the knowledge of Keating, that the complainant never assented that he should take the absolute title to the premises, and that the court below was not in error in so finding.
The decree below will be affirmed.
McGrath, O. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit. | [
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] |
McGrath, 0. J.
James S. Berkery died July 39, 1893,. leaving a widow and children. This suit is against the-mother of the decedent, and is based upon the claim that during his lifetime James S. Berkery had from time to-time borrowed sums of money from his mother, and to-secure the payment thereof his mother held at the time-of his death three life insurance policies, one of $5,000 in the Michigan Mutual Life Insurance Company, one of $5,000 in the National Life Insurance Company, and one of $3,000 in the Catholic Mutual Benefit Association. The first two were payable to his mother in case she survived him, otherwise to his legal representatives. The Catholic Mutual Benefit Association policy was payable to his mother. It is claimed that after the death of plaintiff’s intestate the- mother collected the amounts of the three policies, and that the amounts so collected were largely in excess of the indebtedness at the time of the death of James S. Berkery.
The administrator testified that in August, 1892, he and one Breen, son-in-law of the defendant, as special administrators of the estate of the decedent, called upon defendant to inquire relative to the policies and the indebtedness; that she stated that she held three policies, aggre-. gating $12,000, as security for the payment of the indebtedness to her; that in response to the inquiry as to how much the indebtedness was she stated that she would be satisfied to take the $12,000 represented by the policies; that he then asked her for a statement of the indebtedness, hut she stated that she did not think she could give it; that Mr. Breen spoke up, and said, “She has a note of James for $10,000, and that should be sufficient to show the indebtedness;’’ that no itemized statement had ever been given to witness as to the indebtedness, but in a few days afterwards Mr. Breen called upon him, and exhibited a note dated December 23, 1891,. for $10,000, executed by decedent, and payable six months after date to defendant, with interest at 6 per cent. Plaintiff introduced the note, and then gave evidence of payment to defendant by check of $3,000 in February, 1892, and of $2,000 in June, 1892, and of the collection by defendant of. the amount of the insurance policies, and rested. Defendant then introduced in evidence another note of $5,000, dated April 29, 1889, set up a claim of rent for the house occupied by decedent from the date of his marriage, June 28, 1887, to the date of his-death, at the rate of $25 per month, and rested.
Plaintiff then gave evidence tending to show that the note for $5,000 had not been before that time mentioned; that John Berkery, a son of the defendant, had, after the death of plaintiff’s intestate, taken certain papers from a desk belonging to decedent, against the protest of the widow of decedent; that decedent lived in part of a double house, and defendant lived in the other part; that the land was owned by his father when the house was built, and before that time the father had given defendant a deed thereof, to take effect at the father’s death; that decedent had in fact contributed largely to the construction of the house upon the premises, and had, both ■ before and after his father’s death, made expensive 'improvements and paid taxes and insurance upon the whole property; that from and after his marriage, and up to the time of his father’s death, and afterwards, he had resided in the house, had paid no rent, and no claim -therefor had ever been made; that these dealings had originated before his father’s death, his father having executed a mortgage upon a farm which he then owned to the Detroit Savings Bank, as security for loans made by the son; that after his father’s death, in April, 1889, two notes, amounting to $5,000, which were secured by said mortgage, were renewed, and said notes were paid July 11, 1890, out of the proceeds of the farm, the farm having been deeded to the mother, the deed to take effect at the death of the father.
The defendant then for the first time exhibited a paper purporting to be a statement of the account between the parties, alleging advances made to decedent during 1890, as follows: July 10, $700; July 10, $5,415.50; July 12, $1,000; September 10, $3,000; October 14, $200; November 15, $250; December 20, $1,500'; and December 26, 1891, $2,000, — aggregating, with interest charges, $15,515; and crediting plaintiff with the sums theretofore shown by plaintiff to have been paid, to wit, February 1, 1892, $3,000, and June 15, 1892, $2,000. Plaintiff then showed a further payment to defendant on November 21, 1890, of $2,000, for which no credit Was given in the statement aforesaid.
Plaintiff’s contention upon the trial was that the note for $10,000, dated December 23, 1891, embraced the entire indebtedness, including the $2,000 charged in the statement as received by decedent December 26, 1891, and that upon this note there had been paid the sum of $5,000, and claimed the difference between the balance and «the sum of the insurance' moneys collected.
The court refused to allow the jury to charge the defendant with the proceeds of the Catholic Mutual Benefit Association policy, but at plaintiff’s suggestion the jury, upon a special question put, were allowed to find, and did find, that the Catholic Mutual Benefit Association policy was ffeld by defendant as security simply.
The jury found a verdict upon plaintiff’s theory for $5,119.20. Both parties bring error.
Plaintiff insists that he was entitled, to a further credit upon the account for the avails of the Catholic Mutual Benefit Association policy. Defendant contends:
1. That the court erred in admitting the testimony showing that decedent paid part of the cost of the construction of the house in which decedent and defendant lived.
2. That there was no evidence from which the jury might infer that the $10,000 note of December 23, 1891, was a settlement of account between decedent and his mother, including the $2,000 paid decedent December 26, 1891.
3. That the court erred in submitting the special question relative to the Catholic Mutual Benefit Association policy.
1. The testimony as to decedent’s participation in the construction of the house in which he lived was brought out by defendant’s claim for rent. It was competent for plaintiff to show that decedent’s occupancy of the house was rent free, and to show all the circumstances bearing upon that question, the relation of the parties, the fact that no demand or claim had ever been made for rent, and a substantial consideration for that understanding and agreement.
2. Upon the second point made by defendant, it appeared that no moneys had been advanced by defendant after December 20, 1890, until December 26, 1891. There was no new consideration for the $10,000 note, except the $2,000, if that was a part of the consideration. There was no other advance made at or near the time of giving the note, and none had been made for a year before the note was given. It was not pretended that the note was solicited for any purpose which defendant had in view, except as evidence of the indebtedness. Clearly, under these circumstances, the note was prima facie evidence of an account stated between the parties, and the- burden was upon defendant to rebut the presumption. Rice, Ev. 103; 1 Tayl. Ev. (Text-Book Ser.) § 124; Lake v. Tysen, 6 N. Y. 461; Davis v. Gallagher, 55 Hun, 593.
There was testimony tending to show that the $2,000 received by decedent December 26, 1891, was used to pay a demand which existed on December 23, and that decedent had been, prior to December 26, making efforts to raise the money from other sources to meet this payment. There was also evidence tending to show that the only claim made by defendant after the death of plaintiff's intestate, was the amount of the $10,000 note. Indeed, no claim was made to this sum until after the defendant had once rested after having set up the further claim upon the $5,000 note and the claim for rent. There was no evidence as to the date of the delivery of the note. The presumption undoubtedly is that it was executed and delivered on the day of its date, but that presumption was removable.
It is urged that there is no evidence that the note was given in payment, and that the taking, of a note or acceptance is not payment in the absence of an agreement that it shall be received in payment, and and that upon nonpayment the holder may sue upon the original cause of action, and this defendant attempted to do; and it is sought to demonstrate by statements made in behalf of defendant and used upon the trial that a sum in excess of the amount of the note was due at its-date, and hence that the $2,000 paid over December 26 could not have been included in said note. The difficulty with the demonstra-' tion is that at the very outset of defendant’s case, and before she undertook to make any, proof of the original indebtedness, intending to swell the indebtedness to her, she set up a claim upon the $5,000 note, which it is here conceded was not an independent indebtedness, but was already embraced in the note for $10,000. She n.ext presents a statement purporting to be a statement of debts and credits, in which the estate is credited with only such payments as, after much controversy, have been actually shown to have been made. Plaintiff, however, pending the trial, in consequence of a remark -drawn out upon a rigid cross-examination, is enabled to discover another bank where defendant had made deposits, and trace through a witness from such bank a further payment to defendant, not credited in the statement, of the sum of $2,000. There was no testimony that no other payments had been made, and no credits were acknowledged until the payments had been ferreted out and proven by indisputable testimony in the shape of checks and New York drafts, indorsed by the defendant. In the absence of the note, the jury would not have been justified in giving to plaintiff credit for payments not proven to have been made; but with the note before them it was for them to say whether the presumption as to its having been given in settlement was removed.
■ 3. In view of the conclusion which we have reached as to the Catholic Mutual Benefit Association policy, it is unnecessary to discuss defendant’s third assignment. The jury have found that this policy was held by defendant as security for the payment of the indebtedness. This is not a controversy between the association and a creditor. The amount of the policy has been actually received by defendant, and she refuses to apply it. It was agreed between the parties that the amount of said policy, when received, should be applied upon, and should pro tanto extinguish, the indebtedness. That was a valid agreement. Plaintiff is not now seeking to recover the proceeds of that policy. He is simply insisting upon its application in accordance with the terms of the agreement, and that the indebtedness to that'extent shall not be offset against other moneys which defendant has collected. Suppose the same agreement had been made with a stranger and creditor, and the association had paid over the proceeds of the policy, could such creditor be heard to say that the proceeds of the policy were not applicable to the payment of the debts of the decedent, and that he could sue and recover the debt? The insurance contract was with decedent. It was within his power to change the beneficiary at any time. ’
Plaintiff is entitled to an addition to the judgment of the sum of $2,000, with interest from the date of the collection of that sum from the association. With this modification the judgment is affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is a bill filed by complainants to restrain the collection of a tax imposed by the common council of the city of Detroit for the opening of Noble street between Seventh and Eighth. The chief ground of contention, and the only one which we think calls for discussion, is that the proceedings taken to condemn the lands are void because less than 12 jurors sat in the case, and determined the questions of public necessity and the amount of damages.
The proceedings were had under Act No. 124, Laws of 1883, as amended. This act provides for the impaneling of a jury which shall be composed of 12 freeholders of the city, who are authorized to determine the two questions mentioned. Reliance is also placed upon section 15 of article 15 of the Constitution, which provides that—
“ Private property shall not be taken for public improvements in cities and villages, without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders.”
Twelve jurors were impaneled in the condemnation proceedings, the property-owners being represented, and one of the jurors failed to appear. Thereupon counsel representing the property-owners and the city stipulated to proceed with 11 jurors, who found that a public necessity existed for opening the street, and fixed the amount of compensation to be paid the several owners.
We think the complainants were not prejudiced by this action, and that there has been a substantial compliance with the statute. The statute contemplates a determination by a jury under the direction of the court. There was undoubted jurisdiction in the court to proceed with the condemnation proceedings. That proceeding was for a determination of the questions of necessity and of compensation for the property; and these were simply questions between the city, on the one hand, and the owner of the property it was seeking to condemn, on the other. In that proceeding the city authorities stood, in a sense, as representatives of the tax-payer, and the tax-payer was in court by these representatives. There is no more reason to question the good faith of the authorities in waiving a. juror than there would be to charge collusion in refusing-to call all the witnesses accessible. The two parties who controlled the proceedings doubtless acted in perfect good faith; the city authorities in behalf of all the public interested, and the property-owners in their behalf. It was competent for the owners of the land to waive their constitutional right to a trial by jury. Cooley, Const. Lim. (6th ed.) 214. The judgment of the court followed the verdict of the jury, and was the final determination contemplated by the statute. Section 11 of the act provides:
“ Motions for a new trial or to arrest the proceedings shall be made within two days after the rendition of the verdict, unless further time is allowed by the court; and if no such motion is made, or, being made, is overruled, the court shall enter an order or judgment confirming the verdict of the jury, and such judgment of confirmation, unless reversed by the Supreme Court, shall be final and conclusive as to all persons interested therein.”
It would be exceedingly dangerous to allow that any stipulation in the case of these proceedings, by the authori ties, should avoid the whole subsequent tax levy. The rule is invoked that, to make a valid tax, every step provided by the statute must be strictly pursued. But the purpose of the trial is, as before pointed out, to determine the questions of necessity and of compensation to those interested, and in that proceeding there are two safeguards for the protection of the tax-payer: The one is the representation of the tax-payer by the public authorities, and another the provision that the judgment is to be entered, upon the verdict of the jury, by the court. It is not contemplated that this shall be open to future review in a tax proceeding. The subsequent proceedings are based upon the judgment of confirmation.
We think there was no jurisdictional infirmity in the proceedings to spread the tax, and the decree of the court below is reversed, with costs.
McGrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J. | [
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Grant, J.
The bill in this case contains, in substance, the following averments:
The Evangelical Association of North America is a. religious denomination organized about 1800, under the “ eonnectional” or “associated” form of church government, founded upon that of the Methodist Episcopal Church, and having a system of graded executivé, legislative, and judicial ecclesiastical bodies and officers, and a code of rules known as the “Discipline.” The territory covered by said denomination is divided into “Annual Conference Districts,” in each of which is held a yearly meeting of the preachers of the denomination located within such district. Every preacher who holds a pastorate within the district must attend every session of his conference. For certain purposes of local administration, each annual conference exercises jurisdiction over all its own members, and over the congregations within its limits. By the general conference, held every four years, bishops are elected for a term of four years. It is the special duty of a bishop to preside over the annual conferences, and, with the aid of the presiding elders thereof, to appoint at the conference session the preachers to their respective pastoral charges for the ensuing year, “ the same being the only recognized method of appointing ministers in use in said denomination since its • origin. Neither the lay members of the several congregations, nor the trustees thereof, according to the discipline of said denomination, have any voice or vote in the selection of their pastors, nor any power to reject a pastor who has been appointed in the manner aforesaid.”
The Michigan annual conference of ' this denomination has been in existence over 16 years, and has always embraced within its limits all the preachers, members, and congregations of the denomination in Bay county, Mich. Each annual conference elects presiding elders, for service' within its own bounds, and for terms of office not exceeding four years. Each year the conference assigns to each presiding elder a certain district within its territory for supervision. Under the discipline, a presiding elder is required to superintend the spiritual and temporal affairs of the denomination within his district, to enforce all disciplinary provisions, to hold services, and otherwise to officiate in the various houses of worship in his district, and once in every three months to call and preside over a quarterly conference, held in the. house of worship of each pastoral charge. In this denomination a pastor’s appointment over any particular charge lasts for one year only, though he may be reappointed at annual conference, but not more than three times in succession. A' presiding elder’s appointment over any particular district in like manner is good for only one year, though he may' be reappointed over the same district four times in succession. Under the discipline and usages of the denomination, each pastor and presiding elder is entitled, by virtue of his office, to certain emoluments derived from collections taken up among the members of their charges. Every pastor who is a married man is entitled to occupy the parsonage belonging to his congregation. “ Stewards ” are appointed in each charge, to collect funds to pay the pastor’s salary, and to procure a dwelling place for him, if a married man. Under the discipline, each quarterly conference has to provide for the support of the pastor and presiding elder, and every member must .contribute to their support according to his means, under penalty of trial under the church rules. The discipline also provides that each annual conference shall provide for the yearly salary of its preachers. In 1886 the Michigan conference enacted that each presiding elder should be entitled to a yearly salary of at least $500, and each pastor of the rank of elder should receive the same amount.
The discipline provides “that, when any trustee of a ■church of this denomination withdraws from the denomination, he shall cease to be trustee,” and also that, “ when any land is conveyed for the use of any congregation of said denomination, said land shall 'be kept in trust, to be kept, used, and maintained as a place of divine worship by the ministers and membership of the Evangelical Association of North America, with power to dispose of and convey the same, subject to the discipline, usages, and ministerial appointments of said church or association, as from time to time authorized and declared by the general conference thereof, or by the particular annual conference within whose bounds the said premises are located.” In like manner with regard to parsonages, the discipline provides “ that, if any land is conveyed to said denomination or any of its congregations for the erection of a dwelling-house for the use of preachers, the said land must be held in trust, to be kept, used, and maintained as a plac§ of residence for the preachers of the denomination who may from time to time be duly stationed in said place, with power to dispose of and to convey the same, subject to the discipline and usages of said denomination.”
In the year 1878 there was organized, “as a voluntary association,” by and among members of the denomination in and about Bay City, under the supervision of a preacher of said denomination, a congregation thereof under the name of “ Zion’s Church of the Evangelical Association of North America in Bay City, County of Bay, State of Michigan.” Until the acts of the defendants herein complained of, said congregation, without dissent, always acted as, and claimed to be, a part of said denomination, and subject to its rules and usages, and to the jurisdiction of the general conference of the denomination and of the Michigan annual conference; and, in particular, said congregation always accepted as their pastor and presiding elder only such persons as had been appointed thereto according to the discipline and -usages of said denomination.
-“With a single exception,~the said Zion’s society, in each and every year after its organization, in 1878, up to the spring of 1891, solicited and received from the said Michigan annual conference an appropriation or contribution of money, for the purpose of maintaining the said society, and paying its current expenses as a society belonging to said denomination. At times such yearly appropriations amounted to $500.”
In 1878, with money contributed for the purpose by members of the denomination within- the bounds of the Michigan conference, and by the members of said conference, there was purchased, and in part paid for, a lot of ground in Bay City (describing the same); and, with funds derived from the same sources, said society thereupon erected upon said lot a building, which was used for a house of worship, according to the rules and discipline of said Evangelical Association. In November, 1882, the owner of said lot conveyed the same in fee to “Zion's Church of the Evangelical Association of North America in Bay City, County of Bay, State of Michigan.'' The deed contains the following clause:
“This deed being made pursuant to a contract for the sale of said premises made by Jennie F. Paine to August Meisel, Frederic Koch, and August Kosky, bearing date the said 8th day of June, 1878, which contract has been assigned by said Meisel, Koch, and Kosky to the trustees of said party of the second part hereto, and said premises having been conveyed subject to said contract by said Jennie E. Paine to James T. Lawson, by said Lawson conveyed to Hiram A. Jones, and by said Jones conveyed to John W. Forsyth, above named.”
Afterwards, in 1889, with funds contributed by members of the denomination both in said Zion's society and elsewhere within the bounds of the Michigan conference, and collected by preachers of said conference from persons not members, upon the representation that such contributions were tó be used to erect a church of said denomination, there was erected by said society on lot 7 a new house of worship for use according to the usages and discipline of said denomination, and not otherwise. In laying the corner stone of said new edifice, the pastor in charge (being a person appointed thereto from the Michigan conference), in the presence of said congregation, and with its consent, used the forms prescribed in said discipline. These forms require the officiating clergyman to declare that “ we lay this corner stone as the foundation of a house to be dedicated to the service of the Most High, according to the order and rules and for the use of the Evangelical Association.” Afterwards, when completed, said edifice was dedicated under the discipline by a bishop of said denomination. The disciplinary form required the bishop to de clare that “ we now declare, designate, and consecrate this house as the [name of the church] of the Evangelical Association of [name of place],” for divine worship and the observance of, “devotional services, rules, -and customs adopted and practiced in public worship by the Evangelical Association.”
In November, 1884, with funds subscribed by members of the Evangelical Association, and solicited by the pastor in charge (appointed from the Michigan conference), there was purchased by the said Zion’s society another lot (number 6) in Bay City. Such lot was conveyed by the owner to “the Zion Church of the Evangelical Association of North America in Bay City, County of Bay, State of Michigan.” In the early spring-of 1889, said Zion’s congregation solicited and received from said Michigan annual conference 8500, to be used in part payment for a parsonage to be erected on said lot 6. With the money so donated, and with other funds contributed by the members of the denomination, there was erected on said lot a parsonage “for the use, as a dwelling-house, of the preacher who should be duly appointed at the Michigan annual conference as the pastor of said congregation under the discipline.”
Until 1893 no person had ever been admitted to membership in said congregation except such as were members of the denomination; and no one had acted as trustee or officer of the congregation except persons who had been admitted to the denomination and into said congregation according to the rules of the denomination.
At a regular session of said Michigan conference,, in April, 1890, the complainant Bev. Q-eorge A. Hettler was elected presiding elder for the ensuing four years; and at a session of said conference in April, 1893, the district which includes said Bay City charge was assigned to said Hettler for the ensuing year. Said Hettler is a duly- ordained elder of the denomination, and a member of said conference, and was such prior to 1890. The complainant Rev. John M. Fuchs is a duly-ordained elder of the denomination, and a member of said Michigan conference. At the session of said conference held in April, 1893, he was appointed by the presiding bishop, with the aid of the presiding elders of said conference, pastor of said Zion’s Church. Said complainant is a married man. Since their appointment, as aforesaid, said Hettler and Fuchs have endeavored to enter said church, and officiate therein as presiding elder and pastor, respectively; and said Fuchs has demanded from defendants the possession and the right to occupy the said parsonage. But the defendants and their adherents in said congregation have excluded both of said complainants from» the church and said Fuchs from the parsonage, and have denied their official authority, and threaten to continue so to do, and to exclude them “ from the enjoyment of any perquisites or emoluments belonging to the office of presiding elder and pastor, respectively, of said charge;” but they recognize the defendant Schneider as their lawful pastor, and they admit him into said church as pastor, and permit him to receive the collections taken up for the pastor’s salary, and have admitted him into the occupancy of the parso'nage; and they threaten to continue thus to support said Schneider in the possession of said office, and the use of said church and parsonage.
“In March, 1893, the defendants (save and except Schneider) and their adherents in the said congregation formally resolved and declared that they would no longer submit to the authority or the rules of the officers of the constituted tribunals of the said Evangelical Association, but that they would separate from and be independent of the said Michigan annual conference in all respects, and they notified said conference of this resolution.”
The complainants Hebinger and Fenske are now, and for some years past have been, members of the denomination and of the said Zion’s Church,, and have attended worship at the latter, and have contributed to the support of said congregation. Said Hebinger has not attended services since the defendant Schneider has been acting as pastor, .because he believed said Schneider not to be the lawful pastor. Besides the complainants, “ there are a large number of the members of said congregation who dissent from such unlawful acts and proceedings, and who still adhere to the said Evangelical 'Association and its rules, and still recognize and submit to the authority of the complainants Hettler and Fuchs, respectively, as their presiding elder and duly-appointed pastor, and who desire the said church edifice and parsonage to be used by said Hettler and Fuchs as by the discipline required and permitted, as aforesaid.’’
The defendant Schneider now holds, and refuses to surrender, the books and papers pertaining to the affairs of the congregation, which, under the discipline and usages . of the denomination, rightfully belong to the custody of the lawful pastor; such as the registers of marriages, births, deaths, etc., the membership lists, and the financial accounts of the congregation. Since April, 1893, the stewards of the congregation have collected funds applicable, under the usages of the denomination, to the payment of the pastor’s salary. Part of said funds have been paid over to defendant Schneider. Defendants and their adherents threaten to continue to take up such collections, and pay them to said Schneider, to the extent of at least $600 per annum; and, they pretend that they have hired the services of said Schneider, for a year or more, as pastor.
In excuse of these unlawful acts, defendants and their adherents pretend that the said Michigan conference of 1893 was not a lawful conference of the Evangelical Association, and that, therefore, complainant Hettler’s appointment over the presiding elder’s district, and the complainant Fuchs’ appointment as pastor, were not valid. In this regard complainants say that said Michigan conference of 1893 was composed of the preachers within the district theretofore duly fixed by general conference, and duly qualified under the discipline to be members of said body, and that the time and place at which it was convened had been duly' fixed the preceding year by the presiding bishop, and a majority vote of said conference duly convened. The bishop presiding when complainant Fuchs was appointed pastor had been elected as bishop by a general conference of the denomination held in October, 1891, at Indianapolis. The bill then sets forth facts to show the regularity and validity of said Indianapolis body as a general conference of this church.
Prior to assuming the office of pastor of Zion’s Church, defendant Schneider had withdrawn from the Michigan conference and from the Evangelical Association.
Complainants file their bill on behalf of the members of the denomination and of the Michigan conference, “and especially on behalf of the members of said Zion’s Church congregation at Bay City who still adhere to the said Evangelical Association.” The defendants (except Schneider) are the trustees of said Zion’s Church, “ and, as such, have the actual possession of the said church edifice and parsonage, and are exercising control thereover.”
The relief prayed is as follows: That defendants be restrained from interfering in any way with the complainant Hettler in the discharge of his duties as presiding elder of said congregation, and in taking up collections from said congregation for his salary; from withholding from said Hettler funds heretofore collected from said congregation as and for the salary of the presiding elder; from preventing Hettler from entering the church, and officiating therein as presiding elder, and from holding his quarterly conferences therein;, from interfering with complainant Fuchs in the discharge of his duties as pastor; from preventing his entrance into the church, and from interfering with his collection of contributions for his salary; from withholding from said Fuchs funds already collected as and for the pastor’s salary; from excluding Fuchs -from the parsonage; from- withholding from said Fuchs the said records, registers, etc., pertaining to the congregation, and lawfully belonging to the custody of the pastor; that defendant Schneider be restrained from acting as pastor of said congregation, from officiating in and about said church edifice as pastor, and. from taking up collections from said congregation for pastor’s salary; that the defendants account for moneys heretofore collected by them (as and for pastor’s and presiding elder’s salary) from ■said congregation, and be decreed to pay over the amount, when ascertained, to the complainants; that the rights of the respective parties be ascertained and decreed.
A demurrer was interposed, stating the following reasons:
1. That the bill covered “distinct matters and causes, in several whereof the complainants are not in any manner in common or jointly interested or concerned.”
2. That the bill is multifarious.
3. That the bill states no cause for relief of any kind.
The demurrer was sustained.
1. We see no force in the contention that the bill sets forth no grievance common to all the complainants, and seeks no common relief. The complainants are interested in the same subject-matter, and all claim one common right to use the church, although ..in different ways. Fuchs, as pastor, and Hettler, as presiding elder, are ¿entitled to the use of it for ■ the purpose of conducting divine” worship. Fuchs is entitled to the use of the parsonage in connection- with the church, and the other complainants are entitled to the use of the church for the purpose of worship according to its discipline and usages. We therefore think the bill is not multifarious.
2. While the bill alleges that Zion’s Church at Bay City is not a corporation, but a voluntary association, it is nevertheless insisted that it is a corporation, because the bill shows that it has exercised the franchises and privileges of a corporation for a term of more than 10 successive years; that it has bought and held real estate in its corporate name, has erected a church and parsonage, and that all its temporal affairs are controlled by a board of trustees. It is therefore argued that its rights must be controlled by the same rules that apply to religious societies duly incorporated. In support of this, section 4649 of Howell’s Statutes is cited. This section provides that—
“Whenever any religious society or corporation shall have exercised the franchises and privileges of a corporation for the term of 10 successive years, the same shall be presumed to have been legally organized in pursuance of the laws of this State.”
This statute creates only a presumption. It does not of itself change a voluntary organization, by lapse of time, into a corporation. It was held in Smith v. Bonhoof, 2 Mich. 128, that, under this statute, “no church can become incorporated, provided the powers conferred by the statute upon the corporators are, by the constitution, laws, or usages of the church, lodged in another body.” See, also, Allan v. Duffie, 43 Mich. 3; Methodist Church v. Clark, 41 Id. 730. The allegation, therefore, that the church is a voluntary association, must be assumed as true.
3. It is next argued that no trust is created by the conveyance in favor of the Evangelical Association of North^ America; that, therefore, the legal title is in the local church; and that the Evangelical Association of North America obtained no. right to the church property or its use, under the statute abolishing uses and trusts. The complete answer to this argument is that the general association is not a complainant in this case, nor is it seeking to enforce any title to or claim over the property. The complainants claim the right to its use under the discipline and usages. A conveyance or bequest to a religious association, or to trustees for that association, necessarily implies a trust. The deed in this case shows that the contract was made to certain persons as trustees for the church, and that the deed was made pursuant to that contract. We would naturally look to the written declarations in the constitution, by-laws, and written' documents of the organization to ascertain the trust and the purpose for which the property was conveyed. If the deed refers expressly or by implication to such writings, courts will look there for the declaration of the trust. It is by no means clear that these defendants, who are now the trustees, are in position to set up the statute of frauds. Neither the grantor nor any other person claiming under him is setting 'up this claim. Both parties claim under the same conveyance. In Lynd v. Menzies, 33 N. J. Law, 166, it is said:
“The imperfection relied on was_the absence of an incorporation. But the want of this quality does not at all affect the rights and duties of pastor and people towards each other. The effect of becoming incorporated is to facilitate the acquisition and transfer of property, and to enable the congregation to be represented in the convention of the diocese. But by the canonical law of this denomination of Christians, it is not necessary, in order to. constitute a church, that the congregation should take the form of an incorporated body. Indeed, the very law of this state which provides for the incorporation of this class of' churches presupposes and requires that there shall be, antecedent to the inception of proceedings, fa congregation of the Protestant Episcopal Church in this state, duly organized according to the constitution and usages of said church.’ In the case now before us, it plainly appears that this church was constituted in conformity to the ecclesiastical law and usages applicable to it, and the consequence is that the plaintiff, by his official connection with it, acquired all the customary powers and privileges pertaining to the rectorship.”
In any view of the case, the allegations of the bill are sufficient to require an answer and proofs.
4. The principal .and important question in the case is whether the trustees and the members of this local church at Bay City can, by a majority vote, withdraw its connection with the general body, take the church property with them, set aside the itinerant plan, and deprive their regularly appointed ministers of its use. In this determination the allegations of the bill alone can be considered. Ex parte affidavits, which were used upon the hearing for a preliminary injunction, cannot be considered in the nature of an answer, and must be entirely excluded from this discussion.
It is insisted that under How. Stat. § 4639, the violation of church discipline and church law is to be corrected by ecclesiastical tribunals, and that the State courts have no jurisdiction. Courts, of course, will not set aside the decrees and orders of ecclesiastical courts involving the construction of their own articles of faith or discipline. But. this statute has never been so construed as to deprive those entitled to property rights,- under the conclusive ecclesiastical order and decree, of a remedy which they otherwise have not. Buettner v. Circuit Judge, 100 Mich 179, does not aid the defendants, for it was there said that “both parties must first exhaust the remedies afforded by the ecclesiastical body before the courts will consider the questions involved.” See, also, Smith v. Bonhoof, 2 Mich. 115, where is found an able discussion of this provision of the statute. Nor is this' case ruled by that of Wilson v. Livingstone, 99 Mich. 594. In that’ case the chnrch was a corporation organized under the statutes of this State, and the difference between such a corporation and the case of a voluntary society was expressly recognized. It was there stated that “ the obligations and rights of the members of a voluntary society are to be measured by their articles of association or constitution.” ,
In the present case the bill recognizes the defendant trustees as the lawful trustees, in charge and in possession of the church property. No attempt is made to deprive them of its control or possession when used in a legitimate manner. The only purpose is to compel them to permit the use of the church and parsonage according to the discipline, rules, usages, and polity of the church. It is immaterial in whom, the legal title stands. One party may hold the title, and another be entitled to the use and possession of the property; or, as in this case, both may be entitled to its joint use and possession. It may be admitted for the purposes of this hearing that the title is in the local society or its board of trustees. The question is not, as in many of the cases cited in the briefs of counsel, in whom is the title to the property? but, in whom is the right to its use for religious worship both as pastor and layman? The bill sets forth fully'the history, the discipline, and polity of the church, the title of complainants Hettler and Fuchs to the offices which they hold, and the right to the use of the church property to which said officers are entitled. The question presented relates exclusively to property rights, over which the proper courts have almost universally exercised jurisdiction. If the defendants’ position be’ the true one, it, follows that they are in no manner bound to the faith and tenets of this church, and that they may withdraw, and take the property to any other denomination of Christians.
The plan of the Evangelical Association is identical with that of the Methodist Episcopal Church. The itineracy of its clergy is one of its chief distinctive and fundamental principles. The church at Bay City entered into the voluntary association with full knowledge of its discipline, rules, and usages, and agreed to be bound thereby. Its property was not purchased with funds raised entirely by its own members, but in part by members of the Michigan conference and others, for the purpose of erecting a church of said denomination. The building was consecrated in accordance with its discipline, and for many years, and until after the schism in the church, the local body at Bay City accepted the pastor and elder appointed by the proper authorities. The churches of this body, when they entered it, voluntarily surrendered the right to choose their own pastor, and agreed to accept the pastor appointed by the bishop with the aid of the presiding elders.
Many authorities might be cited sustaining the rights of complainants, but we shall refer to but few. They may ba found in the briefs of counsel. This religious body ia nearly identical in its discipline with that of the Methodist Episcopal Church. In each the itineracy of the clergy is one of the articles of its discipline. The right of the trustees of a local church of that denomination to close its doors against a pastor appointed by the bishop was passed upon in Whitecar v. Michenor, 37 N. J. Eq. 6, a case identical in its facts with the present one. The trustees in that case closed the building against the duly-appointed pastor, ■on the ground that it was not for the interest of the church that' he should be its pastor, and that he was appointed against the wishes of the majority of its members. The court say:
“ It is not claimed that there is any warrant in the ■discipline of the church for the action of the trustees, nor that the discipline provides that the wishes of the majority of the members shall determine whether the preacher appointed to the charge shall act as such or not. If the church belongs to the Methodist Episcopal connection, as it is admitted it does, there is no warrant of law, discipline, or usage for the acts of the defendants. What is known as the itineracy of the preachers and the absolute power of the bishops over the appointments of the preachers to the churches is part of the discipline.”
An injunction was issued in that case to prevent the trustees from closing the church building against the regularly appointed pastor. In a foot-note to that case are ■collated many authorities bearing upon the question, as well as upon the jurisdiction of a court of equity to grant an injunction.
Counsel for defendants, in their brief, admit that the local church at Bay City adheres to the faith of the Evangelical Association, and they say that the church services and Sunday school are conducted in the same manner and in the same faith as before, and that it withdrew in order to keep away from the factions of the association. The reasons for such action are stated in the brief. In the freedom of conscience and the right to worship allowed in this country, the defendants and the members of this ■church undoubtedly possessed the right to withdraw from it, with or without reason. But they could not take with them, for their own purposes', or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of this religious association; nor could they prevent its use by those who chose to remain in the church, and who represent the regular church organization. If complainants maintain the allegations -of their bill, — that they represent the regularly organized body of the church, and are its regular appointees, — they are entitled to the relief prayed. .
The decree of the court below is reversed, and the case remanded for further proceedings, with costs of both courts.
McGrath, C. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.
Counsel cited: Bear v. Heasley, 98 Mich. 279; McGinnis v. Watson, 41 Penn. St. 9; Sutter v. Trustees, 42 Id. 503; Winebrenner v. Colder, 43 Id. 244; Schnorr’s Appeal, 67 Id, 138; Roshi’s Appeal, 69 Id. 462; Schlichter v. Keiter, 156 Id. 119; Jones v. Wadsworth, 11 Phila. 227; Church v. Wood, 5 Ohio, 283; Harrison v. Hoyle, 24 Ohio St. 254; Watson v. Jones, 13 Wall. 679; People v. Steele, 2 Barb. 397; Den v. Pilling, 24 N. J. Law, 653; Gibson v. Armstrong, 7 B. Mon. 491; Curd v. Wallace, 7 Dana, 190; Ferraria v. Vasconcelles, 23 Ill. 456. | [
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] |
Grant, J.
Plaintiff, by direction of the court, recovered a verdict and judgment for $300 claimed to have been paid by him to the defendant as the first and part payment on a parol contract for the purchase of land, which the defendant refused to carry out.
1. The payment was made by a certificate of deposit in a bank, which certificate was owned by plaintiff’s wife. Defendant and his attorney, plaintiff and his wife, and one Bassett were present when the payment was made. The wife indorsed the certificate, and handed it to Bassett, who delivered it to the defendant’s attorney. The certificate was presented to the bank and paid, but it does not appear by whom it was presented for payment. It was produced upon the trial by the bank. It is claimed that there was no evidence to connect the defendant with the certificate, or to show that he received the money. The delivery to his attorney was the same as delivery to him, and justified the instruction given.
It is further insisted that the certificate was the property of the wife, and that, therefore, the plaintiff cannot maintain the suit. The testimony, however, is ample to show that she in fact loaned the money to her husband, and paid it for him. The defendant received it as a-payment from him. The arrangement between him and her did not concern the defendant.
2. After plaintiff had testified on cross-examination that it was not agreed between him and defendant that, if he was not in on the following Monday by the time the bank closed, he was to forfeit the §300, the defendant’s counsel asked him if his own attorney did not inform him that this was the defendant’s claim. The testimony was properly excluded. What either party claimed to the other after the controversy had arisen had no tendency to prove what the agreement was.
Judgment affirmed.
Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit. | [
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McGrath, O. J.
This is a branch of the Petrie-Torrent litigation. 88 Mich. 43, 100 Id. 117.
Complainant’s bill alleges that on October 4e, 1890, Petrie gave to one Marshall, of Chicago, his note for $2,450; that about January 15, 1892, Torrent purchased the note from the payee through one Meglade, of Chicago, for $1,375; that Torrent then put the note in the hands of defendant Badenoch, in order that judgment might be had for the full value of the note; that Badenoch brought suit on the note, and garnished Torrent; that on January 19, 1893, Badenoch recovered judgment on the note in the circuit court for the county of Muskegon for $2,843.02; that Badenoch was not the owner of the note at the time suit thereon was brought, is not now the owner thereof, nor is he the owner of the judgment thereon, or any part thereof; that, at the time of the purchase of said note, Torrent was, and ever since has been, complainant’s trustee, and at the time of the purchase of the note said Torrent had in his hands, as suoh trustee, upwards of $85,000 of complainant's money; that the defendant Torrent purchased said note, and caused suit to be brought thereon in the name of Badenoch, for the purpose of taking an unfair, unauthorized, inequitable, and fraudulent advantage of Petrie, and of making a^ profit out of his fiduciary relation by buying said note at a discount, and by seeking by indirect means, fully set forth in the bill of complaint, to enforce a claim against Petrie, not at what he paid for said claim, but at the face value of the note; and that the defendant Badenoch was the plaintiff in said cause for no other purpose, and that said suit was prosecuted for no other purpose, than to give, by said indirect means, to the defendant Torrent, an unfair, unauthorized, inequitable, and fraudulent advantage of Petrie. The bill further alleges Petrie's willingness to pay to Torrent, and to allow in the accounting, whatever Torrent paid for the note, together with interest thereon from the time of its purchase.
Complainant prays that said note and judgment may be declared to be the property of Torrent, and that the bringing of said suit and the obtaining of judgment therein may. be declared and decreed to be in fraud of the rights of the complainant, and that the defendant Torrent may be compelled to satisfy said -note and judgment out of the moneys in his hands belonging to complainant, at what he paid for said note, together with interest thereon from- the time of said payment, and that all proceedings in the suit at law and in the garnishment suit be permanently stayed. The bill filed by complainant against Torrent in the case reported as aforesaid, and the decree therein, are referred to and made a part of the bill in the present case.
Defendants demurred to the bill, the demurrers were overruled, and defendants appeal.
It is well settled that a trustee cannot use the trust property, nor his relation to it, for his own personal advantage. He cannot buy np a debt or an incumbrance for which the trust estate is liable for less than is actually due thereon, and make a profit to himself, but such purchase inures for the benefit of the trust estate, and the cestui que trust shall h&ve all the advantage of such purchase. Perry, Trusts, § 428; Lewin, Trusts, 276. He should take no advantage of his position to receive personal gain from the trust property, his duty being to protect it, and that, too, without having an adverse interest. Parshall’s Appeal, 65 Penn. St. 233; Sloo v. Law, 3 Blatchf. 459. He cannot buy up debts against or incumbrances upon the estate at a discount, without accounting to the estate, or the party having the beneficial interest therein, for the full benefit. King v. Cushman, 41 Ill. 31; Slade v. Van Vechten, 11 Paige, 21; Schoonmaker v. Van Wyck, 31 Barb. 457; Barksdale v. Finney, 14 Grat. 338.
While conceding the rule, counsel for defendants would make its applicability depend upon the extent of the trust. It is, however, the particular estate which is held in trust that is here sought to be affected. The note was purchased and placed in the hands of a third person in order to reach by garnishment the money or estate held in trust, and offset the amount against a claim therefor. Is it not evident that the very relation which the rule says shall not be used for personal advantage inspired the purchase? The rule is based upon the obligation resting upon the trustee to protect the trust estate, and the possibility of adverse or conflicting interest. The only note in question was given pending a controversy, not yet ended, over this very trust fund, in which it is strenuously urged that large sums of money are being wrongfully withheld. It is by no means clear but that in such case the purchase should be treated- as having been made with the trust funds. Procrastination may be made profitable if the obli gations of the cestui que trust, the issue of which may have been made necessary by the very delay or withholding, may be purchased at a large discount, and then offset at their face value against the sum due.
It is urged, however, that the question may be disposed of in the principal suit upon the accounting; but defendant Badenoch is a necessary party in a proceeding to obtain the relief here prayed.
- It is also insisted that the matter involved in this' suit has been determined by the suit at law, and is res judicata; but the defense here sought to be established was not available in the suit at law. The matters involved, to wit, the conduct of the trusted, and his dealings with the trust estate and in his' relation as trustee, are peculiarly within the jurisdiction of a court of equity.
The decree overruling the demurrers is affirmed, with costs to complainant.
Long, Grant, and Hooker, JJ., concurred. Montgomery, J., did not sit. | [
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Hooker, J.
The relator filed a bill for divorce on September 9, 1893. The defendant filed an answer in the nature of a cross-bill on December 26, 1893, said answer being verified; but said verification did not contain the averment negativing collusion, as required by 3 How. Stat. § 6232. On January 17, 1894, complainant filed an answer to the answer in the nature of a cross-bill. Proofs were’ taken in open court, beginning on March 14, 1894, and ending March 21, 1894. Both parties appeared by counsel, and both introduced testimony. TJpon the 21st day of March a decree was made, granting a divorce to the defendant, and denying it to the complainant. On June 29, 1894, relator caused a petition to be filed in said cause, asking that the decree be set aside for the following reasons, viz.:
1. That the cause was not- at issue when heard, because no replication to complainant's answer to defendant's cross-bill had been filed. ,
2. That defendant's answer in the nature of a cross-bill was not properly verified.
3. That the testimony was prematurely and unlawfully taken, because it was taken within the period of four months after the defendant's answer in the nature of a cross-bill was filed.
4. That a decree was rendered in favor of the defendant within four months after his cross-bill was filed.
The court denied the prayer of this petition, and made an order that defendant be permitted to verify his answer, and to file a replication nunc pro tunc. TJpon complying with said order, defendant was granted a new decree, in all substantial respects like the first one.'
It was a proper exercise of the court’s discretion to permit the amendment of the verification and the filing of a replication after decree. Had the questions arisen upon-the hearing, the power to do so would probably not have been questioned; but the questions were not raised then, and, when they were raised, were no more meritorious than they Avould have been upon the hearing. There is no legal impediment, for courts may permit amendments to the pleadings or proceedings after judgment. Hpw. Stat. chap. 264, and notes.
3 How. Stat. § 6231, provides that—
“No divorce shall be granted unless the party exhibit ing the petition or bill of complaint therefor shall have resided in this State one year immediately preceding the time of exhibiting such petition or bill, or unless the marriage was solemnized in this State, and the complainant shall have resided in this State from the time of such marriage to the time of exhibiting the petition or bill, and, when the cause for divorce occurred out of this State, no divorce shall be granted unless the complainant or defendant shall have resided within this State two years next preceding the filing of the petition or bill; and no proofs or testimony shall be taken in any cause until four months after the filing of such petition or bill for divorce, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purpose of perpetuating such testimony.”
It is contended that 'this section applies to proofs taken in support of the defendant’s answer, because it is in the nature of a cross-bill, and contains a prayer for divorce. This construction requires‘an enlargement of the language used in the statute, which, strictly construed, applies only to the petition or original bill for divorce, which are the only instruments provided for the commencement of divorce proceedings. We are of the opinion that this provision of the statute was to prevent hasty divorces, and that the object is attained in four months from the filing of the petition or bill, as well where a crossbill is filed as where it is not.
The proofs being seasonably taken, there was perhaps no necessity for the making of a second decree, which apparently was only made for prudential reasons.
The mandamus will be denied.
The other Justices concurred. | [
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] |
McGrath, 0. J.
Defendant kept upon its premises, for use, fuel oil. Plaintiff operated a bakery some 500 feet distant, and sues for damages occasioned to his business by the leakage of the oil upon defendant’s premises, its flow through the soil into a common sewer, the escape of the gases through a manhole in the immediate vicinity of plaintiff’s bakery, affecting the atmosphere in the neighborhood, and through the sewer connections into and upon plaintiff’s premises, injuring the products manufactured by plaintiff. The proofs clearly tended to show the presence of the fuel'oil gases in the bread and other products of plaintiff’s bakery, and the origin of the gases was traced through the sewer to the leakage upon defendant’s premises, and the leakage was not denied.
■ The defendant contends that it is not liable to the plaintiff for the consequences of the accidental escape of the crude oil into the public sewer.
“ 1. That, unless prohibited by statute or ordinance, the discharge of noxious substances into public sewers is not unlawful.
“2. That no liability can arise out of the general duty of the defendant to so use its own property as not to do harm to others, for the reason that the communication between defendant’s premises and plaintiff’s premises was established by public authority, and became an independent acting agent, so that the injury was not the proximate result of defendant’s acts or omissions.”
The city ordinance on the subject is as follows:
“No distiller, dyer, machinist, manufacturer, or other person shall, himself or by another, discharge out of or from any stillhouse, dyehouse, workshop, factory, machine shop, dwelling-house, kitchen, or other building, any foul or nauseous liquid, water, or other substance into or upon any highway, street, lane, alley, public space or square, or into any adjacent lot or ground, or deposit or allow to be deposited any refuse, drippings, or nauseous liquid or other substance from distributing pipes or gas conductors into any sewer, receiving ba_sin, gutter, or other place within the city, or force or discharge into any public or private sewer or drain any steam, vapor, or gas.
“No person or persons shall permit on his, her, or their premises within the boundaries of said city, or within one-half mile therefrom, of which he or she or they may be the occupant or occupants, agent or agents, having charge thereof, a soap or candle factory, or the exercise of any other unwholesome or offensive trade or calling, or suffer any building, sewer, or other thing whatsoever to remain on said premises until, in any manner, the same shall become offensive, hurtful, dangerous, or unwholesome to the neighborhood or travelers.”
Whether the defendant would or would not be liable under this ordinance is not material. In view of the bylaw, it cannot be said that the sewer was constructed by the city to carry away this substance, or that such a use was invited, or was even permissive. The nuisance which the ordinance aims to prevent does not depend upon the intent of the party causing it. The fact that the deposit was negligent, or even accidental, did not make the use of the sewer as a conduit lawful. It is well settled that the percolation of deleterious matter, from the premises of the party who suffers it, through the soil, upon the lands of •an adjacent owner, to the injury of the latter, is an actionable nuisance. Upjohn v. Board of Health, 46 Mich. 542; Wood, Nuis. (3d ed.) § 115; Kinnaird v. Oil Co., 89 Ky. 468; Hauck v. Pipe-Line Co., 153 Penn. St. 366. In the Upjohn case the township had extended a burial ground. The use was a necessary public use, and the exclusion of the corrupting influences was impracticable, but the general rule was recognized. Mr, Justice Cooley in that case says:
“ The liability does not depend upon negligence, but the reasonable precaution which the law requires is effectually to exclude the filth from the neighbor’s land. Ball v. Nye, 99 Mass. 582; Hodgkinson v. Ennor, 4 Best & S. 229. But all the cases in which this doctrine has been applied were cases in which, consistent with the proper use of the premises, the exclusion was practicable.”
Bee, also, Cahill v. Eastman, 18 Minn. 324.
In the present case it is not the contamination of water veins that is complained of, but the percolation through the soil, into the sewer, of a foreign fluid, the gases from ■which are pernicious, and the retention of which is practicable. The sewer must be regarded as a condition, rather than as a cause, — as much so as are the' ordinary prevailing winds or currents of air,, by means of which noxious odors are carried.
The judgment is affirmed.
The other Justices concurred. | [
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Hooker, J.
Act No. 142, Laws of 1883, was entitled—
“An act to provide for selecting petit jurors in the Upper Peninsula.”
The eleventh judicial circuit consisted of several counties of the Upper Peninsula, and the county of Maniton, which is comprised entirely of a number of islands in Lake Michigan. The first section of said act excepted the counties embraced in the eleventh circuit from the provisions of the act.
Act No. 93, Laws of 1885, was entitled— .
“An act to amend section 1 of Act No. 142 of the Session Laws of 1883, being an act entitled fAn act to provide for selecting petit jurors in the Upper Peninsula/ so as to include the county of Maniton.”
The act reads as follows:
“Section 1. That the- county clerk, judge of probate, sheriff, and county treasurer of each county in the Upper Peninsula, and of the county of Manitou, are hereby constituted a board for the purpose of selecting a list of names of persons, annually, to act as petit jurors in the circuit courts in such counties.”
Under the law of 1883, as thus amended, a jury was drawn, and the respondent sustained a challenge to the array. The return shows that the respondent held the later act unconstitutional so far as it applied to the eleventh circuit, which included the county of School-craft. It further appears from said return that “ the list of names selected by the board from which the jurors in this panel were drawn had not been taken from the assessment rolls of 1893, as required by law, but that they had been largely taken from the tax rolls of the previous year, and that a large majority of the names so selected, and perhaps nearly all of them, were in fact upon the assessment rolls for the year 1893,” but some of them were not upon said rolls. The respondent held that this was not a ground for challenge to the array, but was a cause for challenge of the several jurors whose names were not upon such rolls. Having refused to vacate his order sustaining the challenge to the array, relator asks a mandamus requiring it.
Had the clause “ so as to include the county of Manitou ” been omitted from the title of the act of 1885, there would be much force in the claim that the act is valid so far as it applies to that portion of the eleventh circuit within the bounds of the Upper Peninsula proper, the title of the earlier act being broad enough to cover that portion of the State. See cases cited by counsel: Board of Supervisors v. Auditor General, 65 Mich. 408; Canal Street Gravel-Road Co. v. Paas, 95 Id. 379. It becomes important to determine whether Manitou county can be considered a part of the Upper Peninsula.
Article 19 of the Constitution is entitled “Upper Peninsula.” Section 1 provides that certain counties (indisputably upon the Upper Peninsula, naming them), “and the islands and territory thereunto attached, the islands of Lake Superior, Huron, and Michigan, and in Green Bay and the Straits of Mackinac and the Eiver Ste. Marie, shall con stitute a separate judicial district.” Section 4 provides that such judicial district shall be entitled to at least one Senator and three Representatives. No allusion is in terms made to the Upper Peninsula in this article except in sections 7 and 8, the former providing for the disposition of taxes paid into the treasury from mining corporations “ in the Upper Peninsula.” Section 8 provides for the change of location of the State prison “ from Jackson to the Upper Peninsula.” It will be seen that the Constitution does not say that these counties and islands shall constitute the Upper Peninsula, and it seems to distinguish the islands in the lakes from the islands, attached to the counties named, which are upon the Upper Peninsula.- The Legislature has almost uniformly attached the county of Manitou to the Lower Peninsula for various purposes; such as the election of Representatives in Congress' and members of the Legislature. See Comp. Laws 1857, p. 95; Comp. Laws 1871, p. 102; How. Stat. p. 106, — as to Representative in Congress. For State Senator, see Comp. Laws 1871, p. 105; How.Stat. p. 108. For Representative in the Legislature, see Comp. Laws 1871, p. 106; How. Stat. p. 110. At one time it was attached to the Lower Peninsula for judicial purposes. See Comp. Laws 1871, § 4988. Section 26 of the schedule of the Constitution authorized the Legislature to abolish the judicial district created by article 19.
There seems no reason to call these islands constituting the county of Manitou a part of the ■ Upper Peninsula, unless it be the fact that article 19 is entitled “Upper Peninsula.” Most of the islands in that county were nearer the Lower than the Upper Peninsula. No reference is made to the Upper Peninsula in terms by article 19 in any section where this county is necessarily included; and we think section 1 indicates that it was not intended that the “ islands in the lakes,” as contradistinguished from the “ islands attached to said counties,” should be included in the term “Upper Peninsula.”
The Court held in the case of Mays v. Commissioner, 89 Mich. 460, that State land upon Bois Blanc Island was not subject to selection as land upon the Upper Peninsula in payment for the construction of a State road. Bois Blanc Island is one of the islands included in the -judicial district formed by article 19 of the Constitution.
It is true that for most of the .time that the State has existed the county of Manitou has been attached to the whole or some portion of the Upper Peninsula for judicial or other purposes, but as much may be said of some of the counties in the Lower Peninsula. Section 25 of the schedule of the Constitution attached all of the territory mentioned in article 19 to the third circuit for the election of Begents of the University. Section 29 of the schedule shows that the third circuit consisted of the county of Wayne. It would hardly be contended that counties in the Lower Peninsula would be held to be within an act whose title was similar to this merely because such counties were included in the judicial circuit, or congressional, senatorial, or representative district, with some county of the Upper Peninsula; and the impropriety of holding certain territory within the term “ Upper Peninsula” for some purposes, and not for others, is apparent.
The confusion likely to arise from uncertainty in regard to the boundaries of the territory meant by the term “Upper Peninsula” would be greater than the inconvenience, if there be any, of having different methods of selecting jurors in the different counties of the eleventh circuit, — an inconvenience which the Legislature can easily remove. We think, therefore, that Manitou, county is not a-part of the Upper Peninsula, within the meaning of the law. By including the clause mentioned, an attempt was made to include territory not a part of the Upper Peninsula, and the plain inference to be drawn from the title is that this was the only object of the bill. The eleventh circuit is not mentioned in the amendatory act, and it is brought within the former act by omitting the exception in such act. We think the clause mentioned restricted the title, and precluded legislation embracing any other territory than the county of Manitou.
This disposes of the case, but, as the other' question appears to be of public importance, we consider it. We think the circuit judge was right in holding that a challenge to the array, upon the ground that the board used the assessment rolls of 1892, instead of 1893, in selecting the names from which jurors were to be drawn, could not be sustained. A majority of these were the names of persons admittedly eligible, and that is sufficient. If others were not, and happened to be drawn, the result was that a sufficient number of qualified jurors did not attend upon the court, and the law points out the procedure in cases where from any cause this happens. See How. Stat. §§ 7575, 7576, 7578, 7580. See, also, Schlacker v. Mining Co., 89 Mich. 253, 261.
We think the viéws of the - learned circuit judge upon both questions were correct, and his order will be affirmed..
The other Justices concurred. | [
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Hooker, J.
Tbe defendant insured a stock of goods belonging to the plaintiff. Her business was managed by her husband, and she appears to have had little to do with it. He bought the goods and kept the books, and, in short, managed the business as he chose. He procured the insurance upon the stock. His authority was not in writing. The .goods were injured by fire on January 13, 1892. The husband, Lewis L. Metzger, notified defendant’s local agent of the fire a few days after it occurred, and adjusters of the defendant and other companies visited the place about a week later. They did not see the plaintiff. While there, the plaintiff executed a power of attorney to her husband, authorizing him to settle the loss. This was done at the suggestion of one or more of the adjusters, by whom the paper was drawn, that they would not settle with an agent unless his authority was in writing. An examination was made of the books kept by Lewis L.- Metzger of the business; and he executed and swore to an affidavit, prepared by the adjusters, in which he stated that the books were correct, true, and accurate records of the transactions of the business, which was carried on under the name of the Giant Clothing Company, and showed the exact' and actual transactions with the firms and individuals named therein, and that an inventory of February 1, 1891, shown to Yernor and Fletcher (two of the adjusters), was a true inventory of the goods on hand at that date, and that subsequent purchases and sales were truthfully entered in the books, and added to said inventory. On March 9, 1892, the adjusters Yernor and Fletcher (the former representing defendant) sent notice to the plaintiff denying all liability under the policies upon the part of their respective companies, for two reasons: (1) Because of fraud; (2) because of attempted fraud.
In the investigation made by the adjusters, they discovered some entries on the books for which there were no bills, and this led to the discovery of alterations in the books, of which the following are specimens:
In the journal was an entry of $1,931.69, ostensibly representing the amount of merchandise purchased in'April, 1891. It was originally posted in the ledger as $931.69,— at that time being so entered in the journal, — which was the correct amount. The journal was changed so that it read $1,931.69, and the item was again posted in the ledger as $1,931.69, and the footings changed to correspond. The books also showed false entries of payment of these fictitious accounts. Lewis Metzger admitted that he made all of these false entries, and makes the excuse that he had marked the goods at 10 per cent, above actual cost, and that he made thése entries five months before the fire, to make the books compare with the amount of stock, if it should be inventoried according to the raised .cost mark. He said that he was trying to sell out, and he did this so' that a purchaser would, think he had paid the amount marked. He claimed that he did not know of these false entries at the time that he made the affidavit, having forgotten them; and the jury so found, in answer to special questions. On redirect examination he attempted to patch the matter up by saying that the 10 per cent, was for freight and dravage; that he made the affidavit before these alterations were called to his attention, and he believed it to be true when he made it. A computation will show that the six items mentioned, which he says were all of the raised accounts, were raised from $96.76 to $1,526.76, — a raise óf more than 1,400 per cent., instead of 10. His affidavit was admittedly false, and it requires great credulity to believe that he did not know it when he made it.
Counsel for defendant asked the court to hold that this was conclusive evidence of attempted fraud, and to direct a verdict, upon the theory that the act of the agent is the act of the principal.
The policy was the Michigan standard, which provides:
“ This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured'touching any matter relating to this insurance or the subject thereof, whether before or after loss. * * * * *
“ Wherever in this policy the word ' insured ’ occurs, it shall be held to include the legal representative of the insured.”
It is contended that the fraudulent intent upon the part of the husband binds the wife, and forfeits the policy, under the last clause;, counsel asserting that the term “ legal representative ” should be construed to include any one who is authorized to act for the insured, while plaintiffs counsel contend that it refers to those who succeed to her legal rights, by reason of her death or the transfer of the policy. We think it should receive the latter construction. This defense is not that the company was defrauded in the making of the contract. In such a case the fraud of the agent could be asserted as a defense against the principal, whether the policy so provided in express terms or not. But the contract was valid, and, for the purpose of determining this question, we must assume that plaintiff has suffered an honest loss, for which she had a legitimate claim. An effort is made to defeat this by showing an attempt by an agent to deceive the defendant into paying a sum greater than the loss. Forfeitures and penalties are not favored in the law, and the language should not be unnecessarily extended by construction. The provision for a forfeiture of rights under the policy is doubtless a wise one, to prevent deceit on the part of insured persons; but it does not seem to us necessary, where the insured acts in good faith, and is not a party to the deceit. The word “insured” is used many times in the policy. If the broad construction contended for is to be given, it would follow that the company would have the right to require statements to be made and sworn to, not only by the insured, but by his legal-representative, stating the belief of such representative, his interest, etc. It would not only compel the insured to make double proofs, if technically construed, but would place him at the mercy of his agent. But the attempt, if made with the knowledge and complicity of the insured, would be as effective to defeat the policy as though it had been made by him alone. It follows that the good faith of the plaintiff was a proper subject for investigation.
Counsel for the plaintiff assailed the conduct of the •adjusters in requiring a power of attorney, and, under the guise of an objection to -its introduction, intimated that it was done “ for the purpose of ruining her.” The evi- ■ dence shows that the power of attorney was required by Fletcher before defendant’s adjuster arrived, and it was no more than an ordinary and proper precaution to require written authority from the policy-holder before settling with an agent. An examination of the paper shows it to be an ordinary power of attorney. It confers no more power upon Lewis Metzger than the testimony shows that he had without it, nor any more than the safety of the defendant required that he should have. There was no evidence that the adjusters did more than to say they should require written authority from Mrs. Metzger to her husband before they would settle with him, after which they, or some one else, prepared it, and Metzger took it to his wife, who executed it. She testified that she did not see the adjusters. When it was offered in evidence, counsel said:
“ We object to the admission of this purported power of attorney in evidence, on the ground that it is incompetent and immaterial.”
There was no occasion to call it a “purported power of attorney,” nor could there be any reason for saying that a power of attorney was incompetent or immaterial. Moreover, the subject was introduced by plaintiff’s counsel upon direct examination, having proved by the witness Metzger that he had a power of attorney, signed by his wife, at which point the defendant’s counsel asked that the power be introduced, and the objection was made. The language was uncalled for and prejudicial. Litigants have a right to have their cases tried upon the merits, and appeals to the prejudices of jurors, by unfounded charges of fraud and deceit, are unwarranted. Whatever- may be said concerning the affidavit, there was no testimony tending tó show that the power of attorney was intended to trap the plaintiff, or deprive her of any rights. .
Nor are we prepared to concur with counsel in their attack upon the adjusters. They had every right to be lieve that Metzger was attempting a gross fraud upon the insurance companies, and it was their legal right to probe it to the bottom, and ascertain what there was of it, and the intent with which the representations were made. There was no occasion to talk of subornation of perjury, for the affidavit was one upon which a prosecution for perjury could not be based. If knowingly made, it was a simple lie, like any other, only more emphatic, because in writing, and verified by an oath, which should have had some moral restraint upon the affiant. Whatever may have been said about the impropriety of inducing persons to commit crime, we are not prepared to place on the same footing efforts to detect rascality and prevent fraud. Self-protection in business dealings would be a delusion if parties were to use the ordinary methods, at the hazard of legal censure, when dealing with persons who scruple at nothing. Crimes and frauds are not usually detected by informing the wrong-doer in advance that he is suspected. We think these adjusters had a right to suppose that this man would not swear to a statement if it was false, though he had taken the first step in deceit, and they certainly had the right to ascertain the value of the burned goods by any fair means.
The testimony of the witness Desenberg should not have been admitted. He testified that he had been in the store a number of times, but could not say that he was there within a month before the fire, but had been within a year, and he thought he had noticed a stock which would amount to anywhere from $9,000 to $12,000. He said that in this estimate he was not confining himself to the year alluded to, and that all he knew was that he had a recollection of being in the store several times, when he saw a good-sized stock of goods there. He did not show himself competent to testify upon the subject.
Other questions raised we think it unnecessary to discuss.
The judgment will be reversed, and a new trial ordered.
McGrath, 0. J., Long and Montgomery, JJ., concurred with Hooker, J. | [
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] |
Hooker, J.
The plaintiff, a corporation of the state of Illinois, recovered a judgment in the Wayne county circuit court, from which the defendant appeals.
The findings of fact show that plaintiff was engaged in the business of shipping from Illinois goods manufactured in that state, to its customers in Michigan, on orders given it by mail, or taken by its agents in Michigan; that on January 23, 1894, the plaintiff, through its duly-authorized agent, entered into a written contract with the defendant, in the city of Detroit, Mich., for the sale to him of a quantity of white lead at a specified price, to be paid for upon delivery; that on January 27, 1894, delivery of the lead was tendered at Detroit; and that the defendant refused to receive the lead, claiming the contract to-be void. At the time of making such tender the plaintiff’ had not filed articles of association in this State, and had' not paid to the Secretary of State a franchise fee, as provided by Act No. 79, Laws of 1893.
Counsel for plaintiff seek to avoid the effect of said act, contending that it is in conflict with the provision of the ■Federal Constitution that “Congress shall have power to regulate commerce among the several states.” Article 1, § 8. The defendant relies upon the familiar rule that, states may impose conditions upon the right of foreign corporations to do business within their limits. This rule has been recognized by the federal courts where it does not conflict with the power of Congress to regulate commerce. Paul v. Virginia, 8 Wall. 168. But, where the effect is to restrain or obstruct commerce among the states, it cannot be applied; the federal decisions, for which we must look for a construction of the Constitution, holding that it is the right of persons residing in one state to contract and sell their commodities in another, unrestrained, except where restraint is justified under the police power, by states or by act of Congress, and that this right extends to corporations. Paul v. Virginia, 8 Wall. 168; Brown v. Maryland, 12 Wheat. 419; Welton v. Missouri, 91 U. S. 275; Pensacola Tel. Co. v. W. U. Tel. Co., 96 Id. 1; Webber v. Virginia, 103 Id. 344; Manufacturing Co. v. Ferguson, 113 Id. 727; Mining & Milling Co. v. Pennsylvania, 125 Id. 181; Bowman v. Railway Co., 125 Id. 465; Moran v. New Orleans, 112 Id. 69; Pickard v. Car Co., 117 Id. 34; Robbins v. Taxing District, 120 Id. 489; Leloup v. Port of Mobile, 127 Id. 640; Fargo v. Michigan, 121 Id. 230; Steamship Co. v. Pennsylvania, 122 Id. 326; Car Co. v. Pennsylvania, 141 Id. 18; Brennan v. Titusville, 153 Id. 289.
The law in question imposes a tax npon corporations for the privilege of doing business in Michigan. It is a tax npon the occupation of the corporation, with a provision that all its contracts shall be void until the tax is-paid, which, if enforced, would embarrass plaintiff in its. commerce with inhabitants of Michigan. It must therefore be held that the act in question does not apply to foreign corporations whose business within this State consists merely of selling through itinerant agents, and delivering, commodities manufactured outside of this State.
The judgment of the circuit court will be affirmed.
The other Justices concurred. | [
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] |
Hooker, J.
The electors of Berrien county voted upon the proposition to remove the county seat from Berrien Springs to the city of S.t. Joseph, which vote was canvassed by the board of supervisors of said county, and the proposition declared carried. Upon certiorari to the board of supervisors, the proceedings were held to be void by the circuit court of Berrien county. The cause is here upon writ of error.
The proceedings are attacked:
1. Upon the alleged invalidity of the action of the board in submitting the proposition.
2. Upon alleged irregularities in the preparation and casting of the ballots and the counting of votes.
3. Upon questions relating to the canvass of the returns by the board of supervisors.
The resolution to submit the proposition received the votes of 18 out of 36 supervisors. Two of the 18 had not been elected, but were appointed to fill vacancies. It is contended that the votes of the two supervisors mentioned were unlawfully counted in favor of the proposition, inasmuch as they were not elected. How. Stat. § 489, is cited as authority for this contention. It is as,follows:
“Whenever a county seat is proposed to be removed, the board of supervisors for such county shall have power, by a vote of two-thirds of all the members elect, to designate a place to which such proposed removal is to be made, and after a majority of the electors of such county voting thereon shall have voted in favor of the proposed location, as hereinafter provided, to make and establish such county seat.”
Section 37, art. 4, of the Constitution, provides that—
“The Legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this Constitution.”
How. Stat. § 729, provides for such appointment. We find no authority for the proposition that a township temporarily represented by an appointed supervisor has not the same voice upon the board that it had before the vacancy. The Constitution (article 4, § 37,' cited above) contains no implication of the kind, and the statute referred to expressly provides that the appointee shall continue to discharge the duties of the office, etc. That the use of the term “elect,” in section 489, has a purpose, is plain; but we think it more reasonable to believe that it was intended to require the consent of two-thirds of a full board, than that it was designed to deprive townships, which should be represented by appointive officers, of a. voice in the proceedings. It was intended to preclude action by two-thirds of a quorum, or of a board whose numbers had been lessened by vacancies.
It is claimed that the appointments of the two supervisors were void because made for the remainder of the term, instead of until successors should be elected. We are not referred to the appointments of these officers, but we think such appointments as these are claimed to be would be valid temporary appointments, though they might not prevent an election.
The next question of importance refers to the proposition submitted. The board of supervisors being in session on January 5, 1894, the following resolution was offered:
“Resolved, that it is the sense of this board that the county seat of this county should be removed from its present location to the city of St. Joseph, and that this board does hereby designate the city of St. Joseph as the proper place to which the said county seat should be removed; and that the question of the removal of said county seat to St. Joseph shall be, and is hereby, submitted to the electors of the said county of Berrien at the time of holding the next annual township election.”
The following amendment was thereupon offered:
“That the city of St. Joseph provide a perfect title to a good and sufficient site for the buildings, and that they deposit $10,000 with the county treasurer, to be used in the erection of said buildings, on or before the 20th day of March, 1894.”
A motion was made to “refer the amendment,” which motion prevailed. The following is the report of the judiciary committee:
“ To the Board of Supervisors of Berrien Bounty:
“ Gentlemen: Your committee on judiciary, to whom was referred the resolution of Supervisor Comings, of St. Joseph, for the removal of the county seat to St. Joseph, as amended by Supervisor Smith, of Galien, have had the same under consideration, and your committee would report that they have examined the statutes and the decisions of the Supreme Court upon this point, and that they are of the opinion that the submission to the people of the resolution, as amended, would be legal.
“Bespectfully submitted,
“George W. Bough,
“W. H. Bale,
“A. J. Easton,
“ Committee.”
The record proceeds:
“ Mr. Tichenor moved that the report be accepted and adopted, which prevailed. * * * The question now being on the resolution offered by Mr. Comings, Mr. Comings demanded the ayes and nays. The ayes and nays being had, the resolution prevailed by the following two-thirds vote.” .
Upon January 6 the following resolution was adopted:
“ Whereas, a resolution has been adopted by this board by a two-thirds vote thereof, proposing the removal of the county seat of this county, and designating the city of St. Joseph as the place to which such removal is to be made: Therefore,—
" Resolved, that the proposition to remove said county seat to the said city be submitted to the electors of said county on the first Monday of April, 1894, which is the time of holding the next annual township meeting; and the county clerk shall prepare, and the sheriff shall cause to be published and posted, such notices of such election as are required by the statutes in such case made and provided;
" Resolved, further, that, in cities or wards where an election would not otherwise be held on said day, a special election shall be held on such day for the purpose aforesaid, in the same manner as at charter or ward elections, and the several clerks of the inspectors of election of such cities and wards shall give the like notice of such election as is by law required for special elections; and
" Resolved, further, that said county clerk shall prepare and cause to be distributed, for the use of the electors at the several polling places of the county on said day, a sufficient number of ballots, one-half of which shall have printed thereon, 'For the removal of the county seat/ and one-half of which shall have printed thereon, ' Against the removal of the county seat.’ ”
This action was followed by the following report of a committee:
" To the Board of Supervisors of Berrien County, Mich,:
"Messrs: Your committee to whom was delegated the ■authority to visit the city of St. Joseph, and view the site or several sites presented for the purpose of acceptance by the board of supervisors for county, sites of county buildings, met at the city of St. Joseph on the 18th day of January, 1894, the committee being all present. They then, on said 18th day of January, proceeded to visit and view four sites presented; and your committee beg leave to report that they recommend for your acceptance the following described pieces or parcels of land, to wit: A piece or parcel of land described as follows, to wit: Bounded on the south by Ship street, on the north by Port street, on the east by Wayne street, on- the west by Church street; also, a half block bounded north by Front street, on the south by Port street, on the east by Wayne street, and on the west by an alley, being one-half block of lands, lots numbered 333, 334, 401, 402. All of wbieb is hereby respectfully submitted.
“Dated at St. Joseph, Mich., January 18, 1894.
“J. V. Phillips.
“W. Randall.
“C. 0. Bell.
“S. H. Martin.”
The record shows that the following proceedings were then had:
“ Mr. Comings moved that the majority report [meaning the report aforesaid, dated January 18, 1894] be accepted and adopted, which prevailed.- Mr. ¡Phillips presented a bond from the city council of St. Joseph, signed by the mayor and clerk of said city, and the proceedings of the council relating thereto. Mr. Peck moved that the bond and papers relating to the proceedings of the council be referred to the judiciary committee. Mr. Peck demanded the ayes and nays. The ayes and nays being had, the motion was declared lost by the following vote.”
The following election notice was published and posted:
“ State of Michigan, County of Berrien
“ To the Electors of the County of Berrien, State of Michigan:
“Ton are hereby notified that at the annual township election to be held in the several townships and city wards-of said county on Monday, the 2d day of April, A. D. 1894, there will be submitted to the electors of said county a proposition for the removal of the county seat of said county from its present location, at the village of Berrien Springs, to the city of St. Joseph, in said county, in. accordance with the following resolution passed by the-board of supervisors of said county, by a vote of two-thirds of the supervisors elect, on Friday, January 5, A. D. 1894:
“‘■Resolved, That it is the sense of this board that the county seat of this county should be removed from its present location to the city of St. Joseph, and that this board does hereby designate the city of St. Joseph as the proper place to which such county seat shall be removed; and that the question of the removal of said county seat. to St. Joseph shall be, and is hereby, submitted to the electors of said county of Berrien at the' time of holding the next annual township election.5
“In testimony whereof, I have hereunto set my hand and affixed the seal of the circuit court of said county this 6th day of February, A. D. 1894.
“Fred A. Woodruff,
[Seal.] “ County Clerk.55
It is claimed that this notice did not contain the proposition that was submitted by the board, in that the original resolution, i. e., that of January 5, was conditioned upon a site being furnished by the city of St. Joseph, and, again, that the resolution of January 6 was contradicted by the resolution of Mr. Gard in relation to the ballots. It is also contended that the record shows that the place selected for the county seat was a piece of land consisting of certain designated lots in the city of St. Joseph, while the proposition voted upon was to remove the county seat to St. Joseph, or at most to the city of St. Joseph.
We consider these objections as overtechnical. It can hardly be said that the amendment of Mr. Smith was part of the resolution of January 5, as adopted. The amendment was referred to a committee, who reported that the resolution as amended would be legal; but the record does not show that the committee recommended the adoption of the amendment. Their report was accepted and adopted, but no vote appears to have been taken upon the amendment. The original resolution, however, was adopted.
The resolution that the clerk provide distinctive “yes55 and “no55 ballots, and the subsequent resolution of Mr. Gard, were not designed to be submitted to the voters. They related to the method of submission, and, from their nature, had to be acted upon before the submission, and. did not affect the question to be voted upon.
As to the third contention, i. e., that the proposition submitted was not sufficiently specific, we think it plain that the board never intended to deprive itself of the power to locate the county buildings. It left to the voters the. question of removal to the city of St. Joseph, as clearly appears from the notice. It decided, in advance, to erect the buildings upon a site tendered by that city.
The record shows that the board were concerned about the nature of the ballots to be used. After obtaining the advice of the prosecuting attorney and Attorney General, they adopted a ballot in accordance with the advice received. The following is a copy of the ballot:
Oeeicial Ballot.
Instructions — If you desire to vote in favor of the removal of the county seat to St. Joseph, you will make a cross in the square opposite the word “ Yes,” which is printed below the words, “For the removal of the county seat to St. Joseph.”
If you desire to vote against the removal of the county seat to St. Joseph, you will make a cross in the square opposite the word “ No,” which is printed below the words, “ For the removal of the county seat to St. Joseph.”
Before leaving the booth fold the ballot so that th'e initials may be seen on the outside.
EOR THE REMOVAL OE THE COUNTY SEAT TO ST. JOSEPH.
Printed by authority.
These ballots were separate from the ballots used for the election' of officers. The objections made to them are:
1. That they were made by the board of election commissioners of the county.
2. That they were upon a separate piece of paper from that upon which the township tickets were printed.
3. That the two ballots were deposited in separate boxes.
It is contended that the county board of election commissioners can only act in cases of general elections, and that the defendant board erred in treating the spring election of 1894 as such. It is said that there can be but one ballot used at any election, and consequently that there can be but one box used. This seems to be based upon section 1 of Act No. 190, Laws of 1891, which section contains no mention of township officers, and Act No. 194, Laws of 1891, which provides for township boards of commissioners. The powers of county boards are not limited to providing ballots- for elections where the officers named in section 1 of Act No. 190 are to be voted for. Section 9 of that act makes it their duty to provide ballots for “all proposed constitutional amendments or other questions to be submitted to the electors." Under article 20, § 1, of the Constitution, proposed amendments may be submitted at the spring election, although no officers, other than township officers, are to be voted for. It would seem to follow that there may be occasion for the action of county boards • in cases not covered by said section 1. Cases of special elections for judges or county officers are apparently covered by section 1, calling for action by the board of county commissioners. It is apparent that in such cases, and at spring elections where a full State ticket is to be elected, there may be two ballots, or we must say that the township commissioners have no duties to perform. No express prohibition of a separate ballot for township officers appears in either statute, nor is there any provision for informing the county commissioners of the township tickets, unless it be inferable from section 10. On the other hand, no provision seems to have been made for notice to township commissioners of the pend-ency of propositions such as the one in question. The law, in our judgment, contemplates that where State or county measures, or State or county officers to be elected by reason of a vacancy, are to be voted upon, the county commissioners may act, and in such case the ballot may be separate from the ballot containing the tickets for township officers, and separate ballot-boxes may be used, for the furnishing of which section 6 of Act No. 190 provides.
Again, it is urged that the ballots should have been separate, i. e., some “ for,” and some “ against,” the proposition, as provided by How. Stat. § 491. The case of Double v. McQueen, 96 Mich. 39, justifies the counting of ballots prepared under Act No. 190, substantially like those in question.
This disposes of the important questions in the case. A number of questions are raised by the petition in this case, relating to the conduct of electors and inspectors of election, but we think it unnecessary to discuss them further than to say that the return shoe's that the inspectors caused returns of the canvass of votes in the various precincts to be made and forwarded to the county clerk, and that they were canvassed by the board of supervisors, and the result found by them was duly declared. We fail to find that in the record which would justify us in overturning their decision in the premises. See Hipp v. Board of Supervisors, 62 Mich. 456; Double v. McQueen, 96 Id. 39; Pinkerton v. Staninger, 101 Id. 273.
The judgment of the circuit court will be reversed, and one entered here for the defendant.
The other Justices concurred.
Mr. Gard moved that the clerk be instructed to prepare the ballots for the election relating to the removal of the county seat in accordance with Act No. 190, Laws of 1891. | [
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Long, J.
This cause was heard below on bill and general demurrer, and the demurrer there sustained, and bill dismissed.
The bill alleges, substantially, that all the parties to the cause are the children and heirs at law of Michael Marley, deceased, who died June 22, 1893; that on September 15, 1891, Michael Marley conveyed the premises in controversy here to his daughter Felicia Marley, by warranty deed, without any consideration, and with the understanding that said property should be held in trust by her, to be distributed after his death between herself and the other children and heirs at law of said Michael Marley, in proportion to their just shares as provided by law; that said 'Felicia acquiesced in said understanding with her father, and, the more fully to carry out the same, the said deed was not placed on record, so that sales could be made of portions of the land in the name of Michael in his lifetime; that such' sales were made, and Felicia took the acknowledgment of such conveyances, and witnessed the same, during the lifetime of her father. It is claimed that this deed was procured by fraud and undue influence. It is further alleged that on December 13, 1892, Felicia procured another deed of warranty from her father, and caused the same to be recorded, and now claims the entire fee to the premises under said last-mentioned deed, and wholly denies that said first-mentioned deed was ever made, executed, and delivered to her. The bill does not set up any fraud in procuring this last deed, or claim that there was any trust connected with the giving of it. The bill prays that this second deed be set aside, and the trust created by the first deed be executed.
Upon the hearing in the court below, the learned circuit judge filed a written opinion, from which we quote with approval as follows:
“It will be observed that the bill does not allege, in terms, whether the trust claimed with reference to the first deed was by parol, or declared by some instrument in writing. The court, however, on the argument of the •demurrer, noticing that fact, i. e., that it was not alleged whether the trust was by parol or in writing, inquired of the complainants’ solicitor whether there was any written •declaration of the trust, and was informed by him that there was none; and from the framework of the bill, as well as by the statement made bycomplainants’ solicitor, the court is satisfied that there, was no written declaration ■of the trust claimed with reference to the deed of September 15, 1891, and, if there was a trust by the understanding of the parties, that it was a parol trust, and not one •declared in writing.
“The question arises whether, considering it as a parol trust, and not in writing, it could be established, decreed, and enforced by this court. The statute provides that all •express trusts shall be in writing, and in section 5573, which defines the purposes for which an express trust may be created, provides in the fifth paragraph that, where the trust is for the beneficial interest of any person or persons, such trust shall be fully expressed and clearly defined •upon the face of the instrument creating it.
“ The decisions in this State and elsewhere are numerous to the effect that an express trust cannot be raised by parol'. Wright v. King, Har. Ch. 12, 17; Bernard v. Bougard, Id. 143; Brown v. Bronson, 35 Mich. 418. It •does not seem necessary further to pursue the inquiry as to whether a parol trust, such as that set forth and claimed in the bill of complaint (if it is to be treated as a parol trust), could be declared and enforced by a decree of this court; but, looking at it in that way, it must be declared void.
“In Randall v. Constans, 33 Minn. 329 (23 N. W. Rep. 530, 531), it was held that, where it does not appear by any averment in the bill of complaint whether the agreement or declaration of trust was in writing or by parol, it will be presumed by the court that the agreement referred to was in writing, and valid within the requirements of the statute of frauds; and the court refers, as authorities upon that proposition, to the cases of Wentworth v. Wentworth, 2 Minn. 277; Cozine v. Graham, 2 Paige, 178; Reed, Stat. Frauds, § 505; Hill, Trustees, 93. In this case the court places its finding that it may be presumed to be in writing in such a case upon the fact that there were no admissions on the subject upon the argument; but in the case at bar it has been distinctly admitted by complainants’ counsel, on the argument, that there was no written declaration of the trust. The principle decided in Randall v. Oonstans could not be made to apply, and- the trust, if there was any such an understanding as alleged in the bill of complaint, must be held to be by parol, and therefore void under the statute of frauds.
“The next question that arises is whether, if the deed of September 15, 1891, was procured, as alleged in the bill, by undue influence, by a scheme on the part of defendant Marley and those who assisted her, and with the understanding that it was for the use and benefit of all the other heirs of Michael Marley, and she would distribute the land between the heirs, as alleged in the bill of complaint (and the demurrer is an admission of this allegation), there was a resulting trust, or implied trust, growing out of these facts.
“In the case of Randall v. Constans, the subject is pretty fully considered, and authorities are collated and discussed; and the court holds that where there is fraud or artifice in procuring title to property, or the same is wrongfully taken or retained in his own name by one occupying a fiduciary relation, a trust results in favor of the party equitably entitled, cand, generally, where the legal title is obtained by fraud, equity turns the fraudulent procurer into á trustee in order to get at him;’ that in such a case it is not the parol agreement upon which the court acts, but the fraud, which gives the court jurisdiction to determine the appropriate relief. The court further says that—
“ ‘ It may be stated as a general rule that where the grantor parts with property on the faith of the promise of the grantee to hold it as security, or to fulfill a trust concerning it, equity will not permit such grantee to retain the- property in violation of his agreement, but will compel him to restore it, or its value, or the proceeds thereof, and in proper cases may enforce it, if partly performed, and justice could not otherwise be done in the premises.’
“Upon this proposition the court refers to a number of leading cases, which are well considered, and would go to the extent of establishing that doctrine. In this case the court further says:
“ ‘It is not material that the legal title passed to the grantee from a third party, who held the title as trustee for the equitable owner, the transaction being for the benefit of the latter. Such transfers, whatever the particular form, when made to secure a debt or advances, are usually construed to be in the nature of mortgages, and upon that basis adequate relief can ordinarily be administered.’
“The court refers, by way of illustration, to Siemon v. Schurck, 29 N. Y. 598, where a deed was taken in the name of a third party without the knowledge or consent of the person who furnished the consideration, and on that ground it was held that a trust resulted in her favor, which the court might enforce; but, as appears by the subsequent language of the court, that was mainly on the ground that the person last mentioned had an equitable beneficial interest in the property at the time of the conveyance, and the court holds that- the mere fact of said person furnishing the consideration would not raise a trust in the nature of a resulting trust in favor of such person unless there was fraud in the transaction. This appears to be the plain meaning of sections 5569, 5571, How. Stat.
“It will be observed that the bill in this case does not allege any existing beneficial intefest in the complainants at the time of the execution of the deed of September 15, 1891. They are alleged to be the children of Michael Marley, but that fact of itself does not create an equitable beneficial interest in such children in the lands of ‘their father existing at that time.
“If there was any equitable beneficial interest existing at that time in the complainants, it was by virtue of the parol understanding and declaration of trust, and the parol understanding must be resorted to by them for the purpose of determining the trust and the parties having a beneficial interest under the terms of the trust; and, if the parol understanding was void for the purpose of declaring the trust and making it enforceable, it would be equally void for the purpose of establishing a beneficial interest in the complainants.
“ Then, if it be true that there was such a parol understanding as alleged in the bill, that the deed was obtained by undue influence and methods stated in the bill, and by reason thereof a resulting trust arises, it would arise in favor of the grantor in the deed, who had been deceived (Michael Marley), as at that time he was the only party who had a subsisting beneficial interest in the lands. In the case of Randall v. Constans, the court says:
“ ‘ While a parol agreement to execute a trust cannot be enforced, and a mere refusal to perform a contract is not in itself a fraud, yet, where property has been conveyed in reliance upon its fulfillment, equity will not permit a party to retain the property and refuse to perform the agreement, and thereby consummate a fraud upon the opposite party by so retaining it without consideration, and in violation of his agreement.’
“ It seems to me from these considerations, upon the statement of facts upon the bill of complaint and the admissions of the demurrer, Michael Marley being in possession of this land, and continuing in possession until his death, and the deed of September 15, 1891, having been procured from him by undue influence, and with the intent not to carry it into effect, that the parol agreement made at the same time was such a fraud as vested in Michael Marley an equitable title to these lands. He was in possession, and might have filed his bill at any time to set aside that deed for the reason stated. If he had died with the property in that situation, his rights in the premises would have devolved upon his heirs or personal representatives; but such was not the case, and 'on the 13th of December, 1892, he executed a warranty deed to his daughter of the same premises, acknowledged it, delivered it, and it was put upon record. This was about six months prior to his death. During that time Felicia Marley appears, from the bill, to have been in possession of the property, and still in possession.
“ As before stated, there is no allegation in the bill setting up any fraud against the second deed, or that there was any trust or intended trust connected with it, unless the allegation in the tenth paragraph of the bill, that ‘ the same [lands] are all held in trust by said Felicia Marley for all the parties to this suit, as tenants in common/ could.be so construed. I do not'think, however, that that is a sufficient allegation of the agreement by which the trust is claimed to have' been created, and of the fraud, if any existed, as against the deed of December 13, 1892, and, so far as I can see, that deed, under the pleadings in this ease, must be construed as vesting an absolute title in fee in Felicia Marley.”
We concur fully in the views of the circuit judge as above expressed. The case is plainly distinguishable from Bigelow v. Sanford, 98 Mich. 657. In that case, as in Randall v. Constans, 33 Minn. 329, cited by the learned circuit judge, it did not appear by the bill whether the declaration of trust was in writing or by parol; and it was held that, where a party offers to show an agreement, it is to be presumed that he proposes ~to prove all that is requisite to make the agreement- sufficient in law. In the present case it was expressly admitted by counsel, on the hearing* that the trust rested in parol. Upon this admission the court below acted, and properly held that it was void.
The decree below dismissing the bill must be affirmed.
McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit. | [
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Montgomery, J.
Plaintiff’s' intestate, Anna McIntosh, instituted this suit to recover for personal injuries. The circuit judge directed a verdict for the defendant. She has since deceased, and her administrator brings the case here for review.
Deceased testified that she was struck by an incoming train while crossing the railway track of defendant. The. evidence shows that, traversing a distance of 48 feet before she reached the track in- question, and after passing the gate, she could have seen the approaching train for a distance of 425 feet at least, had she looked.
The case is ruled by Gardner v. Railroad Co., 97 Mich. 240, and the cases there cited, unless it shall be held that the fact that the gate was not let down excused the deceased from exercising care in crossing the track. The plaintiff relies upon the cases of Richmond v. Railway Co., 87 Mich. 374, and Evans v. Railroad Co., 88 Id. 442. The rule established by these cases is that a party approaching a railroad track has a right to rely upon the absence of such warnings of danger as it is shown to be the custom of the railroad company to give. But in the present case the deceased herself testified that she thought the gates did not fall for a yard engine. As the circuit judge very pertinently said:
“ If she was looking to see a yard engine, of course she could see a regular train as easily.’’
The judgment will be affirmed, with costs.
Long, Grant, and Hooker, JJ., concurred with Montgomery, J. | [
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] |
Long, J.
On November 6, 1893, the defendant, doing business as a brewer in the city of Detroit, was indebted to the plaintiffs in the sum of $3,355.55. Being pressed by them for payment, he promised to give security for the debt. Instead of so doing, he gave a chattel mortgage on his personal property to James Holihan, as trustee for the creditors named in said mortgage, the plaintiff's claim being stated at $2,700. This chattel mortgage was filed in the city clerk's office on November 6, 1893. Plaintiffs had no knowledge of the giving of this mortgage until three days afterwards, when they caused a writ of attachment to be issued out of the circuit court for Wayne county, based upon an affidavit made by one of the plaintiffs, setting forth that the defendant had assigned and disposed of some of his property with intent to defraud his creditors, and that he was about to assign and dispose of his property with intent to defraud his creditors. On a petition made by the defendant before a circuit court commissioner the attachment was dissolved. Plaintiffs appealed from this order to the circuit court for the county of Wayne, where the case was tried before one of the judges without a jury, and the order of the com missioner overruled, and the attachment reinstated. The case comes to this Court by certiorari.
The reasons assigned in the affidavit for the writ of certiorari are:
1. That there is no evidence to support the finding that the plaintiffs had a good and legal cause for suing out the writ of attachment.
2. That there is no evidence to support the finding that the defendant had assigned and disposed of a portion of his property with intent to defraud his creditors, and that he was about to assign and dispose of his property with intent to defraud his creditors.
Some other errors are claimed in the affidavit relating to the admission 'of evidence, but it is well settled in this State that rulings in regard to the admission of evidence are not reviewable on certiorari in this class of cases. Schall v. Bly, 43 Mich. 401.
No findings of fact or law were made by the court below, but all of the testimony taken before the circuit court is returned here for review, and the only question which'we can consider is whether there was evidence to support the plaintiffs’ claim made in the affidavit that the defendant had disposed of his property with intent to defraud his creditors, or was about to dispose of his property with intent to defraud his creditors. Their claim is that certain facts were shown upon the hearing in the court below that warranted the court in reinstating the attachment. These facts are stated in counsels’ brief to be that, before the mortgage was given, defendant had stated to plaintiffs that they were the only creditors of any importance; that he owned a brewery, and also some property on High street; that his debts to others were of little or no’ importance; that again he stated to plaintiffs that he owed only them and one Weidner, and that Weidner’s bill was but $425. The chattel mortgage, however, covers a large amount which purports to have been incurred several months prior to these conversations. It is claimed that plaintiffs relied upon these statement's as to defendant’s obligations. This being testified to by plaintiffs, it is claimed that the burden of proof was upon the defendant on the hearing to show that the claims secured by the chattel mortgage were bona fide. It is claimed; as a further ground for sustaining the writ that the mortgage given, if valid, did not purport to secure the entire indebtedness of the plaintiffs, as, oyer and above the amount stated in the mortgage, defendant owed plaintiffs about $600.
We are of the opinion that thei’e was no evidence to sustain the allegations in the affidavit. Plaintiffs are npt claiming that the debt due them was fraudulently contracted, or that they relied upon defendant’s statement, in giving him credit, that he was not indebted to other persons; but they rely upon the fact that he had disposed of his property, and was about to dispose of it, with intent to defraud his creditors. The only proof of this, as shown by this record, is the giving of this chattel mortgage. The giving of the mortgage is no evidence of intent to defraud anybody, but is evidence of an attempt to secure his creditors for their debts. Iosco Co. Savings Bank v. Barnes, 100 Mich. 1. The burden of proof was upon the plaintiffs to show the truth of the allegations in the affidavit for the writ of attachment, and the proof which they offered, tending to show the statements made by the defendant that he had no debts aside from what he owed plaintiffs and Weidner, would not establish the fact that the claims secured under the mortgage were not bona fide. Upon an examination of the whole record, we are satisfied that there was no evidence showing or tending to show that the allegations in the affidavit were true. The case falls so clearly within the rule laid down in Iosco Co. Savings Bank v. Barnes, supra, that it needs no further discussion.
The order of the circuit court reinstating the writ of attachment must be overruled, and the order of the circuit court commissioner dissolving' the writ will be sustained. The defendant will recover costs of both courts.
McGrath, O. J.; Grant and Hooker, JJ., concurred. Montgomery, J., did not sit. | [
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] |
Hooker, J.
We concur in the statement of complainant’s counsel that—
“ The sole question in this case is, was Louis J. Liesemer in such a state of mind, at the time he signed the trust deed, as to fully understand the import and effect of the instrument which he executed?”
The complainant has for many years been the owner of a newspaper in the city of Ann Arbor, in the editing and managing of which his late wife, Emma 'Liesemer, took part. They had one child, a daughter of five or six years. The mother died on September 26, 1888, and at the time ■of Tier death was the owner of property to the amount of $2,200. She left no will. On September 28, 1888, being the day before the burial of his wife, complainant executed and delivered to John Burg, one of the defendants, an instrument in writing under seal, duly acknowledged, whereby he assigned to Burg his interest in the estate of his former wife, and a certain mortgage and accompanying note for $3,000. The writing provided that Burg and his successors, which successors might be appointed by the proper court upon Burg’s request and application, should hold the property assigned, “ upon trust and confidence, to keep said money safely invested for the benefit ” of said daughter until she should become 20 years of age, at which time she should become entitled to it in her own right. It provided, for its use for her necessities, and that in case of her death it should go to her issue, if she left any surviving; if not, it was to revert to the complainant. The trust was accepted by Burg in writing at the bottom ■of the assignment. The mortgage and note, and a formal assignment thereof, were delivered with the writing aforesaid to Burg. > Subsequently complainant claims to have •demanded the return of the property assigned, and finally, •some two years later, filed this bill to set the assignment aside, asserting that it was obtained by undue influence, at' a time when he was mentally unable to understand the force and effect of the writing. The daughter was made defendant, and answers by • guardian ad litem. Her answer alleges that the assignment rests in and is founded upon no covenant by Burg to execute the provisions and directions of the trust, and that he has not bound himself to do so, and that no precautions or safeguards were provided by the assignment. It further alleges, on information and belief,' that Burg has not accounted to the circuit or probate court, and expresses fears that he will refuse to account to her, and deprive her of her rights under the same. She prays for an accounting and other reftet Otherwise she submits her rights and interests to the court.
Burg and complainant married sisters, were intimate friends as long as Mrs. Liesemer lived, and the former aided complainant in various ways, such as assisting him to increase the circulation of his paper and loaning money for him, and possibly in some other ways. The circuit judge granted the relief prayed, though he practically required the complainant to pay Burg for his services in holding and investing the fund, and for his just and reasonable expenses in the defense of the suit, by allowing them from the property. He expressed confidence in the integrity of purpose of defendant.
We think that the testimony does not warrant the conclusion that the complainant was incompetent to make this disposition of a portion of his property. Doubtless he was grieved over the loss of his wife, and it is quite probable that he experienced a very tender solicitude for the welfare of his motherless child. He testifies that defendant took advantage of the situation to further his own interests, but, in our opinion, the great preponderance of testimony tends to show that Burg did not suggest or insist upon the arrangement, and we find no reason for saying that he designed to convert the property to his own use. The fact that no bond was required is suggestive of danger of loss, but it cannot be said that this was an unusual omission, and it was optional with complainant to require it or not. Nor can the determination depend upon expediency. It may be unfortunate that the relations of the parties have changed, but that fact does not justify' the annulling of a contract. It may be unfortunate that Burg is to have the control of the child's patrimony, considering the strained relations between him and her father, but it cannot be said to be much worse than to deprive her of it altogether, which would be done by a decree for complainant. So far as can be discovered from the evidence, the existing unfriendliness is the result of this suit, which is based upon charges of a character that Mr. Burg cannot be blamed for denying, and controverting by any proof at hand. It would be profitless to enter upon a. discussion of the evidence in detail upon the questions of fact. It is perhaps enough to say that'we do not find in this record evidence to warrant granting the relief prayed.
The decree of the circuit court will be reversed, and one entered here dismissing said bill, with costs of both courts.
The Other Justices concurred. | [
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Long, J.
Plaintiff’s intestate, Jacob Gee, was a brakeman in the employ of the defendant company, which owned and operated a side track crossing the Kalamazoo river in the village of Otsego. This side track was placed across the'river by the company for the purpose of running its ■cars from the main line to the Bardeen paper mill, to transfer from the mill its manufactured product. It was built upon a trestle, and in a circular form, until it reached the manufacturing plant. Across the river from the main line the Bardeen Paper Company had erected gates across the track, just at the edge of the river. One of these gates was hung on. hinges so that, when unfastened, it would, of itself, swing across the track. The gates were so placed there with the consent-of the defendant company. They were fastened to upright posts; which were fastened to bed-pieces extending partly under the track; and, as claimed by plaintiff, the posts and gates were so connected to the railroad track or the trestle that, by the jar of a train or engine crossing, the upper or right-hand gate would become unfastened, and swing across the track.
On July 18, 1892, an engine, and a tender, connected, were to be taken across from the main track to' haul ont some cars upon the other side. The engine was in the charge of the engineer and fireman. Plaintiff’s intestate was a brakeman at work under the «direction of the conductor of the train. As the engine and tender were about to be started across this trestle, backing up, the conductor of the train and Gee stepped upon the brake-beam, one each side of the draw-bar, to ride over, Gee-intending bo couple the engine to the cars which were to-be hauled out. As the tender neared' these gates, the one upon the side where Gee was riding, being unfastened, stood partly open, so that, as the rear end of the tender reached it, the end of the gate came in contact with the rear end of the tender, and, sliding along, crushed Gee against the draw-bar, and injured him so severely that he-died from such injuries on the same day. This action is-brought to recover damages for negligently causing Gee’s death. On the trial the court directed a verdict in favor of the defendant company, on the ground that Gee was-guilty of contributory negligence in riding on this brake-beam.
The case has been very fully and ably argued in this Court. Counsel for plaintiff contend that Mr. Gee’s position on the brake-beam, though dangerous, yet was not the proximate cause of his injury and death, and therefore, if he came to his death through the negligence of the company, it cannot escape liability by saying the decedent was i'n a dangerous place; that the mere fact that he was in a position where he might be injured in some other way would not excuse the company from the consequences of its own neglect. It is contended that at least it was a question for the jury. It appeared from the testimony given on the trial that other employés of the defendant company ‘had been for some considerable time accustomed to ride in this way on this and other engines, and it is therefore claimed that Gee conld not, as matter of law, be said to have been guilty of negligence in doing what was customary to be done there.
From a careful examination of the authorities, we are led to the conclusion that the court below was not in error, under the circumstances shown in this record, in the direction given to the jury. The engine and tender were similar to those used in the general business of the company over the line of its road. It was not a yard engine. It had no foot-board, like those at the rear end of tenders upon which so often employés ride back and forth to attend switches or to couple or uncouple cars. The brake-beam was about 7 inches in width at the center, and continued for 12 inches each way, when it tapered down to 3% inches, and. was only 5 feet 8 inches long. It was 29 inches from each end of this beam to the outside of the tender. The men standing on this beam had no place to hold on, except the projection of the draw-bar, against which they leaned. In this position they conld not see the engineer or fireman, or be seen by them. The engine was running from five to eight miles an hour, according to the testimony. All the witnesses, without exception, pronounced it an unsafe place to ride. The rules of the company, with which the deceased must have been familiar, provide, among other things:
ft It is made hereby the right and duty of every employé, under all circumstances, to take sufficient time before exposing himself to danger to ' make such examination as is here required, and refuse to obey any order which would imperil his life or limb.”
From the testimony, therefore, which was substantially uncontradicted, it appears that this was a dangerous place in which to attempt to ride. With no place to hold by the .hands, except the draw-bar, and standing upon this narrow and confined place, with nothing to alight upon, but an open trestle if he jumped, and out of the sight of the engineer and fireman, and presumably not within their* hearing above the noise of the engine in motion, any person riding in this way would be perfectly helpless, should accident happen. Yet counsel contend that the swinging in of the gate was not one of the dangers to be expected, and that the deceased had the right to assume that the defendant would discharge its duty, and not permit the gate to be unfastened or across the track at that time, as it was closed only at night, and opened each morning. But the deceased was in a position where he could not escape injury if the tender backed into any other obstruction upon the track, or he was likely to be thrown off! by any sudden starting or stopping of the engine. It will not do to say, under these circumstances, that, because it was the custom of others to ride there, therefore he was in the exercise of due care. It is apparent that the deceased must have known, as others did, that it was dangerous, and that he was willing, contrary to the rules of the company, to take his chances. It appeared from the testimony that he was not compelled to ride there. He could have gone into the cab of the engine, as brakemen were permitted to ride there, and thus have been in a safe place, compared to riding on the brake-beam.
The case falls within the rule laid down in Glover v. Scotten, 82 Mich. 369. There the deceased was riding on the cow-catcher, in a sitting position, and with his legs hanging over. It was said:
“The difference in danger between standing on a platform of a regular switch-engine, and sitting on a cowcatcher, with one's legs hanging over it, is apparent. In the one case the switchman is ready to jump upon the approach of danger; in the other, considerable time must elapse before he could recover his standing position upon the pilot beam, and put himself in readiness to avoid danger."
Here the deceased was utterly helpless. He could not avoid danger by anything he conld do. He could not jump, or protect himself at all, and this' he must have known when he took his place there. It cannot be said that the position he was in was not the proximate cause of the.injury. He was in the only place where he could have been injured by the gate, or any collision by the rear end of the tender, and a safe place had been provided. As was said in Glover v. Scotten, supra, “nor would the fact that switchmen were in the habit of riding upon1 the cow-catcher excuse the deceased, as between him and defendant.”
We think the case conclusively shows that the deceased was guilty of contributory negligence, and there was no question in it for the determination of the jury¡
The judgment must be affirmed.
Grant and Hooker, JJ., concurred with Long, J. | [
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] |
Long, J.
The facts in this case are not in dispute. It appears that on March 17, 1891, Edward Snybh, who is the husband of complainant, was the owner and in possession of certain premises in Eaton Eapids, this State. Prior to that date, Delilah Witt had recovered a judgment against him for the sum of $400 and upwards. An execution had been issued upon such judgment, and placed in the hands of defendant Pollock, who was the sheriff of Eaton county. A levy was made on the premises under such execution on March 20, 1891, and the premises sold July 8 thereafter, but the certificate of sale made by the sheriff was not actually delivered by him to the purchaser or filed in the office of the register of deeds of that county until July 15. Delilah Witt, the judgment creditor, became the purchaser of the premises at the sum of $427.65.
March 21, 1892, Edward Smith exchanged and conveyed the premises to the defendant Mary Miller. Smith received from Mrs. Miller in payment for the land a store building and stock of groceries in Nashville, this State, and two mortgages on the Eaton Eapids property, aggregating $1,750. These mortgages were executed by Mary Miller, and made payable to the complainant, Eebecca M. Smith. At the time of this trade the Eaton Eapids property was incumbered by a mortgage held by John M. Corbin, some tax liens, and the execution levy above mentioned; the whole amounting to about $900. When the property was exchanged, neither of the parties had ready money to pay or satisfy the incumbrances on the Eaton Rapids property, so it was. agreed that Smith and the complainant should give a bond, by the terms of which they were to pay anct remove all .the incumbrances on the Eaton Rapids property; To secure the payment of the incumbrances, the $1,750 was divided into two mortgages, one for $900 and one for $850, and it was stipulated in the $900 mortgage-that it should be a first mortgage, and not be recorded, but .deposited with bankers at Nashville until such incumbrances were removed. Efforts were made by Edward Smith to procure money to pay off the incumbrances, and,, failing to do this, he attempted to get an extension of' time, but this also failed; but on October 11, 1893, the-complainant, having secured the money, filed with the-register of deeds of Eaton county an affidavit, together „with copies of her mortgages and notes, showing the true-sum due upon her mortgages, as evidence of her liens* •upon the premises, and at thg same time deposited with the register the amount .due upon the Witt sale for principal, interest, and costs, amounting to $466, together: with the amount due upon the mortgage held by Mr.. Corbin. The amount has been accepted by Mr. Corbin, and that mortgage is out of the case. The tax liens were-also paid and satisfied.
It further appears that on August 31, 1893, Delilah Witt executed and delivered to defendant Harris a conveyance in the form of a quitclaim deed, for the purpose of assigning her right under the execution purchase. On October 15, 1893, the complainant, after depositing the-money in the register’s office to meet the incumbrances,, sent her attorney to see Mrs. Miller and Mr. Harris for the purpqse of perfecting a redemption of the premises bid in under the execution sale. A tender was made of. the full amount claimed, and interest and expenses, and Mr. Harris was asked to convey to Mrs. Miller the rights which he had secured from Delilah Witt. They refused to take this money, referring complainant’s attorney to Mr. Corbin, saying that he had done all the business, and that they knew but little about the transaction.
Complainant thereupon filed this bill for the purpose of determining the rights of the parties in the premises. Defendants contend that Harris became the absolute owner of the premises under his deed from Delilah Witt. Complainant claims that the circumstances under which the deed was given to Harris show that he took it merely as security for his indorsement of Mrs. Miller’s note, and for the purpose of protecting Mrs. Miller in her interest in the premises.
It appears from the testimony that Mrs. Miller, finding that the complainant and her husband had taken no steps to pay off the claim under the execution, went to defendant Harris, and gave her individual note to him, signed by her husband as surety, ¿or 1455. Mr. Harris indorsed this note over to the bank, and the mo'ney was realized upon it by Mrs. Miller, and used by her in paying the Witt judgment, Mr. Harris taking this quitclaim deed from Mrs. Witt for the purpose of securing himself for his indorsement of Mrs. Miller’s note. Mr. Harris testified that he was to hold this quitclaim as security for signing the note. Mrs. Miller still owes the bank the amount of money represented by the note.
It is therefore contended by complainant:
1. That the right of redemption as to her had not expired when she tendered the money, for the reason that the sheriff had not given a deed to Harris, or to any one else, and that the right to redeem remains until such deed is actually made, whether the time named' in -the statute has expired or not.
2. That when she deposited the money with the register of deeds, on October 11, 1892, and ,when she offered to Mrs. Miller and Mr. Harris, on October 15, 1892, to pay the amount of the execution sale and the note given at the bank, and to reimburse and pay all that Mrs. Miller, Mr. Harris, and the bank had paid, out, it was within the time of redemption, and it was the duty of Mr. Harris to accept the money, and discharge or cancel his claim under the sheriff’s certificate of sale.
3. That defendant Mary Miller redeemed the premises by the payment of the money which she borrowed from the bank, and that the attempt now to hold the assignment of the sheriff’s certificate as a purchase by Harris is a fraud upon complainant, and that Mary Miller is in collusion with Hárris and the bank to relieve the land of complainant’s mortgages.
4. That the broadest latitude which can -be given to the transaction is that the sheriff’s certificate was transferred to Harris as security for the money loaned to Mrs.’ Miller; and that, under the familiar principle that whenever property is transferred, no matter in what form or by what conveyance, as security for a debt, the transferee is merely a mortgagee, and has no other1 rights or remedies than the law accgrds to mortgagees, Harris acquired no title to the land, and his rights are those of a mortgagee.
The sale under the execution was made on July 8, 1891. The 15 months from that date would expire on October 8, 1892; and, if the defendants’ contention be correct,— that the 15 months is to be computed from the date Of s,ale, — no person could redeem after that time, .and the money deposited in the office of the register of deeds by Mrs. Smith would not effect a redemption. But complainant contends that her right to redeem continued for the full period of 15 months from the time the certificate of sale was given to the purchaser under the execution sale and the depositing of the certificate in the office of the register of deeds. This certificate was given the purchaser on July 15, 1891, and deposited in the register’s office the same day, so that .the 15 months’- time for .redemption would not expire until October 16, 1892; and, if the complainant’s contention be correct, the ihoneys were deposited by her in time.
But, however this may be, the arrangement made between -Mary Miller and Mr. Harris by which he purchased in the Witt bid can be construed only as amounting to a redemption of the premises. Mr. Harris testified that he took the deed from Mrs. Witt as security for his indorsement upon the note of Mrs. Miller. It is evident that Harris did not suppose he was acquiring the absolute title to the premises, but that, as he admits, he took the deed as security, and- was to deed over to Mrs. Miller when the note was paid. If the deed to Harris was intended to be and was an.absolute conveyance to him, it cut off, not only the Miller title, but also the complainant’s mortgages. Mrs. Miller desires to have the conveyance treated as absolute for the purpose of cutting off these mortgages, and she and Harris refused the tender for the purpose of accomplishing that object; yet they claim,/ as between themselves, it is to be treated and held as a mere «security. The arrangement sought to be carried out cannot deprive the complainant of her right to pay the debt and secure her mortgage rights in the premises. At the time, the deed was made by Mrs. Witt to Harris no deed had been made by the sheriff on the execution sale. All Mrs. Witt held was the certificate of sale, and it was her right that Harris purchased and had assigned to him. Mrs. Miller held the title in fee, and had the right to redeem. She procured Harris to hold the bid under the deed to him, and with the understanding that it should operate as a redemption, so far as she was concerned. This arrangement must also be held to have protected the complainant’s mortgage interest in the premises, and to give her the right to pay, at the time payment was tendered, the amount of the bid, as she and her husband had agreed to do, and thus discharge the obligation of the bond to remove this incumbrance. The case is very similar to Banning v. Sabin, 51 Minn. 129, and, under the facts there stated, it was 'held that the transfer amounted to a redemption.
In this view of the case, it is quite unnecessary to decide whether the deposit made by complainant with the register of deeds was in time to redeem from the sale.
The decree of the court below will be affirmed. •
Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit. | [
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Long, J.
On April 24, 1891, the, common council of the city of Grand Rapids determined, by resolution, to* pave a part of West Bridge street, including the part which passes the complainant’s railroad and freight house. The pavement was constructed, and on January 1], 1892, the-common council designated the district benefited; which included the north 100 feet of complainant’s premises, and assessed complainant for benefits therefor the sum of $846.50, the premises being'valued at $1,500. From this assessment complainant appealed to the common council, on the ground that its lands were not liable to assessment for such improvements. This claim was denied by the common council, and the assessment roll was confirmed on March 21, 1892. The assessment was to be paid “in five annual installments. The first was not paid, and the land was sold by the city marshal for the amount of the same and costs of sale, on November 4, 1892. i The second in stallment not being paid, it was returned by the treasurer to the city clerk. The city charter provides (title 6, §§ 33, 41) for the execution of a deed by the mayor at the expiration ■ of one year from the date of sale. This bill was filed September 39, 1893, for the purpose of vacating the assessment as illegal, on the ground that the complainant is not liable to assessment for this municipal street improvement, and that its premises are not benefited or susceptible of benefit thereby, and to enjoin the mayor from executing a deed on the sale for the first installment, and the marshal from selling on the second. The defendants demurred generally to the bill. The court sustained, the demurrer, and dismissed the bill.
The contentions of the complainant are:
1. That, under the special acts of the Legislature by which it is incorporated, it cannot be assessed or taxed for municipal street improvements.
3. That, under the general railroad law, it cannot be so assessed or taxed.
3. That the charter of the city of Grand Rapids does not authorize the assessment of such tax on the lands of ■complainant used and operated in the exercise of its franchises.
4. That the lands of complainant so used are not sus- ' ceptible of benefit from a street improvement, and for that reason cannot be assessed.
The Michigan Southern Railroad Company was originally organized under a special charter. Laws of 1846, p. 170, Act No. 113. By its charter it is provided:
“ The said company shall pay to the State an annual tax of one-half of one per cent, upon the capital stock paid in, including the $500,000 of purchase money paid or to be paid to the State, until the first day of February, 1851, and thereafter an annual tax of three-fourths of one per cent, upon its capital stock paid in, including the $500,000 of purchase money aforesaid, and also upon all loans made to said company for the purpose of constructing said railroad, or purchasing, constructing, chartering, or hiring of steamboats authorized by this act to be held by said company, which tax shall be paid in the last week in January in each year to the State Treasurer; and the property and effects of said company, whether real, personal, or mixed, shall, in consideration thereof, be exempt from all and every other tax, charge, and exaction by virtue of any laws of this State now or hereafter to be in force, except penalties by this act. imposed.”
Afterwards, in the year 1855-, an act was passed by the Legislature to authorize the Michigan Southern Railroad Company to consolidate with the Northern Indiana Kailroad Company. Laws of 1855, p. 300, Act No. 138. This act contains the following provision:
“ The said corporation so to be organized by virtue of this act shall continue subject to the same rate of tax as though such consolidation should not take place, and the .amount of its capital and loans hereafter upon which such taxation shall be paid shall be such portion of the whole of its capital and loans as is actually employed in the State of Michigan,”
It is contended that the words “tax, charge, and exaction,” employed in the statute, cover every kind of assessment which can be made under the taxing power of the State, and that, under this special act by-which complainant was incorporated, it cannot be assessed or taxed for municipal street improvements.'
The act of 1846, for the organization of the Michigan Southern Railroad Company, also provided for the sale of the Southern Railroad, and for the right of the newly-organized company to purchase it. The new company was authorized to build a road from the city of Monroe, passing through Petersburg, Adrian, Hillsdale, thence to Cold-water, and thence to Lake Michigan, on the line theretofore established as the line of the Southern Railroad by the State, or anywhere further, southward than said line; and also from the junction of the Tecumseh branch with the Southern Railroad, to pass through the villages of Tecumseh and Clinton, to the village of Manchester, in the county of Washtenaw. The Michigan Southern Railroad was to construct and put in operation its road fyom Hillsdale to Coldwater within four years, and from Cold-water to the St. Joseph river within eight years, and from the St. Joseph river to Niles within twelve years, and within three years put in operation the Tecumseh Branch to the village of Jackson, along the line .of railroads formerly authorized to be constructed by the Jacksonburg & Palmyra Railroad Company. The act further provided that the line of railroad thus completed should constitute a continuous line of railroad from the waters of Lake Erie, in the city of Monroe, to Lake Michigan. The scope of the act, therefore, was to build a line of railroad across the State from east to west, through the several places named, and to complete the branch from. Tecumseh to Jackson. It was this company, organized to construct and operate this road, to which the act of 1846 applies. The act of 1855 authorized the Michigan Southern Railroad Company to consolidate with the Northern Indiana Railroad Company, but in no manner changed the rate of taxation. State Treasurer v. Auditor General, 46 Mich. 224. Afterwards, the consolidated company organized under the nanle of the Lake Shore & Michigan Southern Railway Company. Thereafter the complainant company leased or otherwise acquired the control of the railroad extending from White Pigeon, St. Joseph county, to the city of Grand Rapids, and has since operated it in its own name. It was no part of its original line, and it is not disputed that the portion from Kalamazoo to Grand Rapids was originally known as the “ Gardner Road,” and was organized under the general law of this State.
Whatever the rights of the complainant company may be under the act of 1846 as to taxation, that act cannot fee made applicable to this leased road, it being organized under the general railroad law. The exemption from taxation under the act of 1846 was a special privilege granted to the Michigan Southern Eailroad Company, and it cannot be extended to such lines as that company might thereafter lease and operate, which were organized under the general railroad law of the State. In fact, the rule seems to be much narrower than this; that is, that the exemption from taxation must be construed to have been the personal privilege of the very corporation specifically referred to. In a note to Cooley on Taxation (2d ed. p. 212) it is said (quoting from Railroad Co. v. Railroad Commissioners, 112 U. S. 609):
“ This salutary rule of interpretation is founded upon an obvious public policy, which regards such exemptions as in derogation of the sovereign authority and of common right, and, therefore, not to be extended beyond the exact and express requirement of the grants construed strictis-simi juris.”
In the case cited it appears that the railroad company exempt from taxation had attempted to transfer its franchises to another corporation, which therefore claimed the exemption, and filed its bill to restrain taxation. The bill was dismissed, the Court saying:
“ The exemption from taxation must be construed to have been the personal privilege of the very corporation specifically referred to, and to have perished with that, unless the express and clear intention of the .law requires the exemption to pass as a continuing franchise to a successor.”
No such intention can be found in the statute of 1846. It is claimed, however, that, under the general railroad law of this State, this property cannot be made liable for local improvements of this character. It is provided by the general railroad law (How. Stat. § 3360) that a tax shall be paid by every company formed under its provisions to the State Treasurer, based upon a percentage of the gross income of the company, and that the tax so paid “shall be in lieu of all other taxes upon the property of such companies, except such real estate as is owned and can be conveyed by such corporation under the laws of this State, and not -actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road.” It is contended that the words “in lieu of all other taxes” preclude the levying of such assessments for local improvements.
We are satisfied that this contention cannot be sustained. As said by Mr. Justice Cooley:
“It is a very just rule that, when an exemption is found to exist, it shall not be enlarged by construction. On the contrary, it ought to receive a strict construction; for the reasonable presumption is that the state has granted in express terms all it intended to grant at all, and that, unless the privilege is limited to the very terms of the statute, the favor would be extended beyond what was meant.” Cooley, Tax’n (2d ed.), p. 205.
Speaking of local assessments, the learned author says, on page 207:
“ The most striking illustration of the rule of strict construction of exemptions is seen in the case of special assessments for local improvements, such as the paving and repair of streets, etc. It is almost universally held that a general exemption from taxation will not extend to such .assessments. In the leading case, the words of the exemption were that no church or place of public worship 'should be taxed by any law of this state/ Upon this the court remarked: ‘The word “taxes” means burdens, charges, or impositions put or set upon persons or property for public uses, and this is the definition which Lord Coke gives of the word “talliage” (2 Inst. 232); and Lord Holt, in Carth. 438, gives the same definition, in substance, of the word “tax.” The legislature intended by that exemption to relieve religious and literary institutions from these public burdens, and the same exemption was extended to the real estate of any minister, not exceeding in value $1,500. But to pay for the opening of a street in the ratio of the benefit or advantage derived from it is no burden. It is no “talliage” or “tax,” within the mean ing of the exemption, and has no claim upon the public benevolence.’”
Judge Dillon, in his work on Municipal Corporations (§ 777), speaking of the strictness with which these statutes are construed, says:
“Although an ‘assessment’ is in the nature of a tax, and is authorized by or is a branch of the taxing power, yet a general statute exempting certain property — as, for example, churches — from ‘ taxation by any law of the state ’ does not exempt it from liability for a street assessment.” In re Nassau Street, 11 Johns. 77.
It was held in State v. City of Newark, 27 N. J. Law, 185, that a railroad charter exempting the company, in consideration of the payment of a certain tax, from any “ other or further tax or imposition ” upon it, does not exempt it from liability for an assessment- upon houses and lots owned by it, and benefited by the opening and widening of a street; but that the corporation cannot for such a purpose be assessed without reference to the special benefit conferred upon property owned by it, as such an assessment would be in fact a tax, from which it is exempt. See, also, Railroad Co. v. City of New Britain, 49 Conn. 40; City of Ludlow v. Trustees, 78 Ky. 357.
But Judge Dillon says (§ 778):
“ Aside from the rule of strict construction which applies to exemptions from taxation, the cases cited in this and in the previous section will show that there is, in their ordinary use, a recognized difference between the words ‘ tax ’ and ‘ assessment,’ and that the one does not always or usually include the other. Thus, a constitutional provision that ‘ taxation shall be equal and uniform throughout the state ’ does not apply to local assessments upon private property to pay for local improvements. So a provision of the constitution of a state which requires ‘ the rule of taxation to be uniform,’ in connection with another provision that ‘ it shall be the duty of the legislature to provide for the organization of cities, and to restrict their power of taxation, assessment, etc., so as to prevent abuses in assessments and taxation,’ is construed not to apply to special assess ments by municipal corporations, made by authority of the legislature, for local improvements,” — citing Weeks v. City of Milwaukee, 10 Wis. 242.
It is evident that the great weight of authority upholds the doctrine that assessments for local improvements are not within the general exemption from taxation. Under the general railroad law of this State, the taxes'mentioned are such burdens, charges, or impositions as are put or set upon persons or property for public uses; and this law has no reference to. special assessments for local improvements in the ratio of the benefit or advantage to be derived from them. It is apparent from the statements in the bill that certain benefits are derived to this property by the improvement made. The proportion of these benefits is determined by the local officers..
But a more serious question is raised by counsel for complainant. It is insisted that the mode of collection of the tax fixed by the charter cannot be adopted and carried out as against the complainant, a railroad corporation. The proceedings prescribed by the charter for the collection of the taxes are as follows: After the assessment roll has been made and confirmed by the common council, it shall be delivered by the city clerk to the treasurer of the city; Ninety days after the receipt of the assessment roll, the treasurer shall return it to the city clerk, with a list of the real estate on which the assessment has not been paid, stating the amount of the tax and collection fees on each parcel, and the names of the persons to whom assessed. Within 30 days after the return of such list, the clerk shall cause the list to be published in a newspaper, with a notice of sale. The marshal shall attend the sale, and act as auctioneer. If no person bids the amount of the assessment, the lands shall be struck off to the city of Grand Rapids. No bid for less than the assessment, fees, and expenses, with interest, shall be received; and the land may be redeemed within one year on payment of the amount for which it was sold, with interest from date of sale at 25 per cent. If not redeemed, the mayor shall execute a deed to the purchaser. The city is empowered to hold, occupy, enjoy, use, possess, lease, incumber, and convey lands bid off to it at such sales as fully and completely as a natural person. At the time of this assessment, no other means were provided by the charter for the collection of such assessments. It is claimed by counsel that a railroad is an entirety, and cannot be cut up and taxed and sold for taxes in parcels; that such a proceeding would result in a destruction of the franchise, and destroy the availability of the road to the public, who are entitled to its benefits as a means of transportation.
In City of Detroit v. Detroit City Railway Co., 76 Mich. 421, 427, it was said:
“ But these tracks are only special adaptations, for a particular use, of the surface _ of public highways, and, under our laws concerning levy and sale on execution, each track would be sold as a whole to the bidder for the shortest term of years to collect tolls for the usé of it. * * * The right to use the tracks is inseparable from the franchises, and, it not being taxable as land, it should properly be taxed as an entirety to the corporation.”
In Hackley v. Mack, 60 Mich. 591, 604, it was said:
“ We have no law that we have yet discovered, and certainly none has been pointed out to -us, which authorizes the sheriff to levy upon the track or road-bed of a railway, even against the corporation. If any levy can be made upon the property of the company, aside from such goods and chattels as may be found and seized and taken into custody by the sheriff, it is only, on the franchise of earning tolls, as provided by the corporation laws.”
In Applegate v. Ernst, 3 Bush, 648, the court said:
“ The railroad, from one end to the other, is an entirety, and as a whole only may be subject to taxation or coercive sale. Fragmentary taxations or sales might be nnjnstly vexatious and injurious to the owners, pervert the destination of the road, and disturb the public use and interest. To avoid such evils and absurdities, the law treats a railroad and all its appurtenances as, one entire thing, not legally subject to coercive severance or dislocation. In that consolidated character it must be taxed for state revenue, and cannot be a fit subject for local taxation by the separate counties through which it runs.”
In the case of Georgia v. Railroad Co., 3 Woods, 434, 438, Mr. Justice Bradley, speaking in reference to a tax levy made on the depots, freight houses, passenger houses, and offices of the company for taxes due the state, says:
“It cannot be supposed that the legislature, in authorizing its construction, and granting peculiar franchises for its operation and use, ever intended that execution creditors might levy upon parcels of it, and cut it up into sections, and destroy it as a great public thoroughfare. Such a supposition' seems to us preposterous. Suppose a mile of the road should be levied on and sold, would the purchaser have a right to fence it in, and take up the rails and cross-ties, and plant it, and thereby destroy the railroad? Could this be done without contemning the power of the state by which it was created and made a public highway? We think not.”
In Porter v. Railroad Co., 76 Ill. 561, it was held that, if a railroad was to be assessed at all, it must be as an entirety.
These cases arose under a claimed power of taxation by the state or by counties, or attempted levies under executions, and not under local assessments; but the reasoning is equally applicable against sales for local assessments where the attempt is made to collect by sale of the roadbed, or, as in this case, the freight house, road-bed, and right of way.
It is said, however, that this was a terminal of the road, and the rights of the public could not be affected by the sale of such terminal. We cannot accede to this. The sale of the freight houses and terminal of right of way and tracks might seriously affect the business of the company and the' rights of the public. In Railroad Co. v. Trustees, 7 Hun, 652, an assessment was made upon a part of the road-bed of plaintiff for benefits in opening a street. Proceedings were had to set aside the assessment; and it was held that the defendant could not sell the entire road-bed, nor any lands necessarily used by plaintiff for the purpose of its franchise. The case was, however, rnled as coming within section 59, chap. 277, Laws of 1864, defining and limiting the powers of the trustees.
It is suggested, though not strenuously contended, by counsel for defendants, that though no sales may be made of the real estate assessed for the purpose of paying this tax, yet the assessment against the property is valid, and may now be collected from the personal property of the complainant, under and by virtue of the amendment to the city charter in 1893, contained in title 6, § 10, Act No. 418, Local Acts of 1893. . That section provides:
“At the time of the delivery of the assessment roll to the city treasurer, the mayor shall attach his warrant thereto, commanding him to collect the assessment therein contained, together with the fees hereinbefore prescribed, within 90 days from the date thereof; and further commanding and authorizing said treasurer, when he may deem it necessary so to do, to levy and collect the same by distress and sale of any personal property upon such premises belonging to the premises chargeable to said assessment.”
Just what personal property, there may be “upon such premises belonging to the premises chargeable to said assessment” it is difficult to perceive; or just what this provision means is difficult of ascertainment. If there were a general clause in the charter authorizing the collection from the personal property of the corporation, we could see no difficulty in enforcing the collection,- as we are of the opinion that though the lands and premises assessed cannot be Sold for the tax, for the reasons before stated, yet the assessment for the local improvement- is valid. The only question in this case is the mode of collection. Whether there is any law under which the city can now proceed for the enforcement of the payment of the tax is doubtful. None has been pointed out, and it may need further legislation-on the subject to enable the city to collect.
The decree of the court below must be reversed, and decree entered here in favor of complainant, setting aside the sale of the premises, and releasing the levies under the tax warrant as to the other years. The assessment for benefits will not be disturbed, but will stand as a valid and subsisting assessment upon the property for the improvement thus made. The relief granted is without prejudice to the defendant city to proceed to the enforcement of the assessment in such mode as it may deem best.
McGrath, O. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit. | [
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] |
Long, J.
August 10, 1891, plaintiff and wife gave to-defendant a chattel mortgage on their wrecking scow and outfit for $500, to secure the payment of their note of like amount, due on or before one year from date. The parties at that time all lived in Chicago, 111., and the mortgage was given and filed there. The mortgage contained a clause giving the mortgagors the right of possession until default made in payment, and also the following stipulation:
“Or if the mortgagee, his executors, administrators, or assigns, shall feel he is insecure or unsafe, or shall fear diminution, removal, or waste of said property, or if the mortgagors shall sell or assign, or attempt to sell or assign, the said goods and chattels, * * * then, and in any or either of the aforesaid cases, all of said note and sum of money, both principal and interest, shall, at' the option of said mortgagee or his executors, * * * become at once due and payable, and the said mort .gagee, his executors, administrators, or assigns, or any of them, shall thereupon have the right to take immediate possession of said property, * * * and may remove .and sell and dispose of the said property, or any part thereof,” etc.
September 23, 1891, defendant took possession of the property by virtue of this clause in the mortgage, and, as the defendant says, “because the plaintiff threatened to -take the property away to Muskegon or elsewhere, and I was fearful I would lose my security.” Defendant advertised the property for sale on October 1, 1891. * September ■30 plaintiff tendered defendant the sum of $70 in money .and an account for services rendered, which he claimed, with the $70, amounted to enough to discharge the mortgage. This tender was refused, and, defendant refusing to •surrender the property, plaintiff brought this suit to recover the value of the mortgaged property, and also in the same action claimed to recover for the value of a sailboat which he claimed was lost by the carelessness and negligence of the defendant. On the trial in the court below before a jury, the plaintiff had judgment for the .amount claimed
Several errors are assigned, but the principal ones relate to the rulings of the court in the charge, and the refusal -to charge as requested.
The court charged the jury, in relation to the sailboat, -that, if it was lost through the carelessness and negligence •of the defendant, plaintiff would be entitled to recover its value. It is contended that this was error, for the reason that there was no evidence given which would warrant the finding that it was lost by defendant’s negligence. It appears that on September 3, 1891, defendant wrote plaintiff at Chicago to come with his outfit to Silver Lake, •Oceana county, Mich., to raise the sunken vessel, the Vesta V., belonging to defendant. Defendant towed plaintiff’s scow with his steamer Eumbell, the sailboat-being tied to the scow. According to plaintiff’s testimony, he was on the scow, and saw that the sailboat was safely across the lake until the Eumbell turned to go up the-shore, when he noticed the sailboat capsize. He signaled the Eumbell. She slackened speed. He drew the sailboat-alongside the scow, and signaled the Eumbell to go ahead, because he thought they were so near shore she might run the distance. He says: “The sailboat towed that way for a short distance. Finally she chawed her line off near the stem, and went off; at least drifted away.” This is plaintiff’s'own version of the loss. He was there, and himself gave directions what to do. Certainly, from this showing, if any one was at fault, it was hot the defendant; and the court was in error in permitting a recovery for the-loss of the sailboat.
The work done for the defendant by plaintiff was in. raising the Vesta V., which he seeks to have applied as-payment on his mortgage.
“The circuit judge erred in charging the jury and in giving the requests for plaintiff found on pages 134-140 of' record.” Evidently this assignment relates to all the pages, from 134 to 139, inclusive; but these pages contain many statements by the court in which the law is correctly-stated, whatever may be said of some of them. It is too-well settled that such an assignment cannot be considered to need comment here.
We have -carefully considered the other claimed errors,, and they need no discussion, as on a new trial the rights-of the parties will probably be fully protected.
It is claimed by the plaintiff, however, that the case-ought not to be reversed, even if there be error found in reference to the charge about the sailboat, 'as the amount could be deducted from the judgment, and, with that-deduction, the judgment affirmed. The testimony in the- •case is too uncertain for us to determine what value the jury placed upon the sailboat.
The judgment is reversed, and a new trial granted.
The other Justices concurred. | [
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Grant, J.
Plaintiff’s claim for damages is based upon the allegation of negligence that a certain sidewalk along Franklin street, one of the most public streets in the city, was dangerous and unsafe for public travel by pedestrians, and was so rendered unsafe by a heavy snow which had fallen many days previous to the accident, and “had been tramped and beaten down by the school children and others walking thereon when the snow was soft, after which rain and warm days had melted it from the sides of said sidewalk, leaving -the center thereof uneven and irregular ice, much higher in the center of said sidewalk than at the sides thereof.” A demurrer was interposed and sustained.
The case is expressly ruled by McKellar v. City of Detroit, 57 Mich. 158. Discussion is unnecessary.
Judgment affirmed.
The other Justices concurred. | [
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] |
Long, J.
This action is brought upon a benefit and indemnity certificate of $5,000$ issued by the defendant upon the life of Arthur H. Dailey, a conductor on the Michigan Central Railroad, and a brother of the plaintiff, who was named as beneficiary therein. The maximum indemnity in case of injury was $25 per week. The cause was tried before a jury, resulting in a verdict and judgment for plaintiff for the amount of the policy and interest.
The record shows that the deceased made an application for the insurance in writing on January 16, 1891. It was filled out by Mr. McBride, a solicitor for the defendant, upon a blank form provided and furnished for that purpose. In answer to the question contained in the application: “Have you other accident insurance covering weekly indemnity? If so, give names of companies, and amount of weekly indemnity in each,” — McBride filled in the answer, “No.” And in answer to the question: “ Does the weekly indemnity you now carry, and the amount you hereby apply for, exceed your weekly salary, wages, or income? If so, how much? Answer fully,”— McBride filled in the answer, “No.” The testimony tends to show that, at the time of signing the application, Dailey explained to McBride that he had other insurance, which, with that proposed to be taken in the defendant company, would make the weekly indemnity exceed his wages; that McBride induced him to agree to drop this other insurance when it should expire, upon the 1st of March following, and assured him that the statements in the application would make no difference as to the validity of the insurance he would give him; and that he agreed also to give Dailey credit for the premium until February 1. Mr. McBride testified that Mr. Miller, the secretary of the* company, was advised of the fact that Dailey had other insurance, and that he did not desire to pay until the end of the month. January 19, Mr. Miller, as secretary, indorsed an acceptance upon the application. January 24 a policy was filled out, and properly executed by the president and secretary, under the seal of the company, and mailed to Dailey. The same date, about two or three hours after the policy was mailed to him, Dailey was run over by his train, and injured, so that he died the following day. He never saw the policy, which was delivered at his residence in the regular course of mail. The premium required by the company was afterwards tendered and refused.
Mr. McBride testified on the trial that he informed Miller, the secretary, of all of the facts, and that Miller agreed to charge him with the premium, and issue the policy at once. McBride says:
“ I had told Miller that Dailey was going to let his other insurance run out, and he had promised to let me write him up as soon as his other insurance ran out. Miller said: ‘ You get it as soon as you can. We want it. He may not see you when it runs out, and get another year’s insurance in some other company.’”
Mr. Miller does not deny that he was informed of the other insurance, and of Dailey’s wish not to pay the premium at once. He says, however, that he did not agree to issue the policy and give credit for the premium. He did fill out the policy, however, and dated it back to the date of the application, January 16, but claims that he instructed his cashier not to deliver it until March 1, when the premium would be collected.
1. The defense claims that the policy was not operative at the time of Dailey’s death, for the reason that it had not been delivered; that it was sent to applicant’s house by mistake; that the advance premium had not been paid; and that it was agreed that it should not become operative until March 1, 1891.-
The court instructed the jury substantially that if the policy was filled out by the secretary with intent to have it take immediate effect, he knowing of the other insurance and of the agreement to give credit for the premium, and it was mailed to the deceased with intent to. have it take immediate effect, the plaintiff could recover; but, on the other hand, if the secretary indorsed it to take effect on the 1st of March, when the other policy expired, and the secretary did not agree to extend credit for the premium, and the policy was mailed to the deceased by mistake of the cashier, and against the instructions of the secretary, the plaintiff would not be entitled to recover. The court further charged the jury that if they believed that the statements as to the other insurance, contained in the application, were made under the direction of McBride after he had been fully informed of the facts, and that the answers were written in by McBride after being so informed, the defendant would be bound by the acts of McBride, as he was the agent of the company.
We think there was testimony in the case to sustain these instructions. McBride says he knew of the other insurance, and the amount of it, and when it. would expire. He testifies that he advised the secretary of it, and in fact solicited the insurance under the advice of the secretary. If so, then, notwithstanding the answers in the application were not truthfully made, the company could not avoid the policy. The knowledge of McBride and the secretary was the knowledge of the company, and the company must be held to have waived the right to insist upon the other insurance as a forfeiture. Under such circumstances it is not in a position to assert that the answers are untrue. Pudritzky v. Lodge, 76 Mich. 428.
The court was not in error in the charge as to* the extension of time to pay the premium, and the delivery of the policy, to take immediate effect. If the secretary, knowing all the facts, filled out the policy with intent to have it take immediate effect, and caused it to be mailed to the deceased as of force and effect at that time, the company cannot now be heard to say that there was no delivery, though it did not reach its destination until after the death of the insured. If these facts were true, the beneficiary could have enforced a deliverj' of the policy if delivery had been refused. The contract was complete when the application was accepted and credit given for the premium. May, Ins. § 46.
It is contended that the court was in error in directing the jury that Mr. McBride ivas the agent of the company, and that the company would be bound by his acts in writing in the answers to the questions in the application. We think the court was not in error in this part of the charge. Mr. McBride was given authority to take the application, and it appears that he was sent by the secretary for the very purpose of obtaining the application, the secretary knowing at that time that Dailey had other insurance.
2. Another question in the case relates to a certain condition in the policy. The policy recites:
“The conditions under which this certificate is issued, and to which the insured, by his acceptance hereof, agrees, are as follows: • * * * Standing or walking on the roadbed or bridge of any railway, or attempting to enter or leave moving conveyances using steam, electricity, water, or compressed air as a motive power, are hazards not contemplated or covered by this insurance, and no sum will be paid for injuries "or death in consequence of such exposure, or while the insured is thus exposed.”
The application upon which this policy was issued is set out, in the record, and is entitled—
“.Application for Membership in the Preferred Masonic Mutual Accident Association of America,” and states:
“ I hereby apply for membership in the above association, membership to be based upon the following statement of facts, which I hereby warrant to be true, and agree to accept certificate of membership subject to all its conditions and provisions.” •
The blank form of application is numbered with questions and answers, from 1 to 20 inclusive. No. 4 is as follows, in question and answer:
Q. “ Place of business.”
A. “M. C. Ry., Detroit, Mich.”
No. 6. “ Occupation.”
A. “ Passenger conductor M. C. Ry.”
No. 7. “What are the duties required of you in these occupations? Answer fully.”
A. “Running passenger trains.”
No. 8. “Name and line of business of firm of which you'are a member, or by whom you are employed.”
A. “M. C. Ry. Co.”
No. 15. “Have you in contemplation any special journey or hazardous undertaking, not stated in this application for indemnity?”
A. “No.”
No. 16. “Are you aware that the benefits from this association will not extend to nor cover hernia, orchitis, nor to any bodily injury of which there shall be no external and visible mark, nor to any bodily injury happening directly or indirectly in consequence of disease, nor to death or disability caused wholly or in part by bodily infirmities or disease, or by the taking of poison in any form or manner, or by any surgical operation or medical or mechanical treatment, nor to any cause except when the accidental injury shall be caused by external and accidental violence, and that these shall be the proximate and sole cause of disability or death?”
A. “Yes.”
No. 17. “Are your habits of life correct and temperate, and do you understand that the certificate of insurance will not cover any injury which may happen to you either while under the influence of intoxicating drinks, or in consequence of having been under the influence thereof?”
A. “Yes.”
No. 18. “Are you aware that any misstatement or concealment of facts by you, or the omission or neglect to pay within 30 days from date of notice the quarter-annual fee, or any of the assessments made by the association upon you, will work a forfeiture of all the claims you or your heirs or legal representatives may have to any benefits arising from your connection with this association?”
A. “Yes.”
“Applications for certificates are not binding until accepted by the secretary. No other' person is authorized to bind the association.
[Signed] “A. H. Dailey.”
“ Accepted January 19, 1891, 13 o’clock noon.
“A. C. M., Secretary.
“3-1-91.”
Aside from the questions of other insurance, which have been before discussed, the foregoing contains substantially ■all there is in the application which Dailey signed.'
It is contended that no recovery can be had under this ptolicy, for the reason that the proofs show conclusively ■that Mr. Dailey came to his death while attempting to .alight from his train when it was in motion, and that the ■direct cause of his injury and death, resulting therefrom, was in attempting to alight from his train while in motion. 'The declaration avers that,—
“At the time said injuries were incurred by said Arthur H. Dailey as aforesaid, he, said Arthur H. Dailey, was not •attempting to enter or leave a moving conveyance, as defined by said policy.”
It is contended by plaintiff:
1. That there was some evidence from which the jury might find that the deceased did not meet his death from attempting to leave the train while in motion.
3. That, under the application, the insured was entitled to have a policy issued to him which did not Contain these restrictions.
3. That, under the application, it is fairly to be inferred that an accident such as caused the death of Dailey was within the express risks against which it was assumed to insure.
4. That the restriction in the policy cuts out the probable accidental violence which, in the minds of both parties, Mr. Dailey, a railway passenger conductor, was insuring himself against; that the restriction would practically render the insurance nugatory and valueless; and that it must therefore be held inoperative so far as this insurance is concerned.
There can be no doubt about the correctness of plaintiff’s position when we take into account the answers given to the questions in the application, and, had the action been brought upon the contract made by the acceptance of the application, no doubt could arise as to the plaintiff’s right of recovery; but the declaration avers that the deceased did not come to his death by the attempt to leave the moving train. Failing to establish that fact, and it being shown by defendant that the proximate cause of the injury and death was the attempt to leave the train while in motion, it is now, asserted that that was one of the very risks insured against, and plaintiff should be permitted to recover for that reason.
We think there was no evidence from which the jury would have been warranted in finding that Dailey came to his death by any other means than in an attempt to leave the train while in motion. We are also satisfied from the application and the information which that gave to the defendant company that accidents of this kind are of the risks intended to be insured against. The sole- business of the deceased was in running passenger trains, and this was plainly stated in the application. It is common knowledge that conductors of passenger trains on all railroads must, in the very nature of their business, not only enter their trains when in motion, but leave them before they come to a full stop. It is common knowledge that conductors of passenger trains have full charge of their trains. They give the signal to start, and, after the train starts, they get on board. At stations when the train pulls up, and before it stops, the conductor alights upon the platform. This may be a dangerous practice, but it is among the risks which the passenger conductor assumes when he enters upon such employment; and so general is this knowledge that the defendant company, when it took and approved the application, must have had knowledge of it. In view of this, the above restriction in the policy cannot be insisted upon by the defendant company, and, if the declaration had been based upon the contract actually made, the questions here raised by plaintiff might be of avail. As before stated, the contract was complete • when the application was accepted and credit given bjr the secretary for the premium. The insurance which the parties agreed upon is substantially set out in the application, and the insured had no reason to believe from it that there was to be any such restriction as to entering or leaving moving trains as contained in this policy. He was entitled to have a policy issued to him in conformity to the application, and if the suit had been planted on the contract of insurance such as the minds of the parties met upon, and the other facts were as found by the jury, there could be no doubt about the right of recovery. If it was. the intent of the parties that the policy should issue at once when the application was accepted, and the application was accepted to take effect as of January 19, so as to give the insured the same legal remedy which he would have had had the policy been delivered on that day, and that was the intent of the parties, the law will give effect to such intention. Davenport v. Insurance Co., 17 Iowa, 276; Perkins v. Insurance Co., 4 Cow. 645; Tayloe v. Insurance Co., 9 How. 390.
But as the declaration counts on the policy as the contract between the parties, and negatives the restrictive clause, and this not being proved, the action cannot, in its present form, be maintained, and the judgment of the court below must be reversed, and a new trial granted, with costs.
The other Justices concurred. | [
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Montgomery, J.
Plaintiff sued to recover a commission on a sale of real estate. The circuit judge directed a verdict for the defendant, and plaintiff brings error, alleging that the circuit judge committed error — First, in excluding testimony of plaintiff as to how much money he had expended in advertising the property; second, in admitting testimony of defendant that he had placed the property in the hands of other brokers; third, in directing a verdict for the defendant.
1. It was not error to exclude testimony as to expenditures made by plaintiff in advertising. Neither the pleadings, nor the plaintiff’s version of the contract of employment, left the case open for any claim under the quantum meruit.
2. While we think the testimony of the defendant as to his having placed the property in the hands of other brokers immaterial, it is apparent that the error in the admission of such testimony resulted in no injury to the plaintiff, if the court was right in holding that there was no case made for the jury.
3. The only question which requires extended discussion is whether the circuit judge should have submitted the case to the jury.
The declaration contained three special counts. In the first it was alleged in substance that defendant employed plaintiff as broker to effect, on behalf of said defendant, a sale of the premises in question, and agreed to pay to the plaintiff a commission of $1,000 in case he (the plaintiff) would, within a reasonable time, procure a purchaser at the price of $20,000; that the plaintiff agreed to use his best efforts to effect such a_ sale, and, with the knowledge of-the defendant, negotiated with several parties in regard thereto; that within a reasonable time after the making of said contract, through the efforts of said plaintiff, said property was brought to the attention of Frank A. Osborn; that said Osborn and the defendant, being thus brought together through the plaintiff, negotiated with respect to said property, and that pending the negotiations said plaintiff notified defendant that said Osborn had been procured as a possible purchaser by said plaintiff, and that said Osborn was desirous of purchasing said premises, but was unwilling to pay so high a price as $20,000; that said defendant then, in willful disregard of plaintiff’s rights in the premises, did agree to sell said premises to said Osborn at a price named which was less than $20,000, and that said Osborn agreed to purchase the same at such price. The plaintiff further averred that by reason of the premises, and the lowering of said price, under the circumstances, the defendant became indebted to the plaintiff in the sum of $1,000.
The second count averred that defendant employed plaintiff at the agreed price of $1,000 to furnish a purchaser at a price satisfactory to defendant, and alleged that the purchaser and defendant were brought together by plaintiff’s efforts, and a sale at a price satisfactory to defendant was made, and claimed the agreed compensation.
The third count was the same in substance as the second, except that it averred that plaintiff’s employment was at a reasonable commission.
There were appended the common counts, and a bill of particulars was filed, which limited plaintiff's claim to one “for services in procuring a purchaser for stores No. 420 to 428, Michigan avenue, $1,000.”
Under the state of the pleadings, we think the only question for trial was whether the plaintiff did in fact procure a purchaser, either at $20,000 or at a price satisfactory to the defendant. Each count avers that the purchaser was procured by the plaintiff, and there is no averment of any special damage for withdrawing the property from plaintiff's hands, excépt as it is averred that plaintiff produced Osborn as a purchaser, and that defendant availed himself of plaintiff's efforts. There is no averment in the first count of the declaration that the plaintiff was to have the exclusive sale of the property, and the plaintiff's own testimony shows that defendant was authorized to sell if he should himself get a purchaser for the property. This count alleges that defendant's wrong consisted in selling to a customer with whom plaintiff himself was at the time in negotiation. But this averment of the declaration is refuted by the undisputed testimony in the case. The plaintiff testified that defendant agreed to place the property in plaintiff’s hands, fixed his price at $20,000, and agreed that if plaintiff succeeded in selling at $20,000 he was to have $1,000 commission for the sale; that defendant agreed to place the property in his hands exclusively and absolutely, with the reservation that, if he himself succeeded in finding a purchaser, he (defendant) would first notify plaintiff to bring in any customer that he had, before withdrawing the property. Plaintiff also testified that he agreed to use his best efforts; that he entered into negotiations with one Eyfe for a sale of the property, and that Eyfe, after considering the matter, declined to buy, but referred him to his partner, Mark B. Stevens, and introduced him to him as a possible purchaser; that Stevens looked into the matter, and stated that if he bought he preferred to do so through his •nephew, one George B. Stevens, who. was in the real-estate business, and that he (plaintiff) 'finally agreed with Mark B. Stevens that in case he should become a purchaser he would divide commissions with George B. Stevens; that Mark B. Stevens never agreed to buy the property of him, but it was left in- that way; that, a short time before the sale to Osborn was consummated, defendant told the plaintiff that George B. Stevens had brought Mr. Osborn to look at the property, and that he (plaintiff) then told the defendant that, if the property was sold to anybody connected with Mr. Stevens or with Mr. Fyfe (referring to Mark B. Stevens), he (the plaintiff) would -claim his commission. The plaintiff also called the purchaser, Osborn, who testified that he purchased the prop-' erty from defendant through George B. Stevens, paying $19,300; that he first learned of the property through Mark B. Stevens, but that his negotiations were with ■George B. Stevens; that he had no acquaintance with the plaintiff, and that he had never heard of him until after “the purchase. Mark B. - Stevens testified that he had, before’the purchase by Osborn, given up the thought of purchasing the property, and communicated the fact to George B. Stevens, and it would seem that after this conclusion George B. Stevens negotiated the sale with Osborn. George B. Stevens, who was called for the defendant, testified that after the talk between Mark B. Stevens and plaintiff, and while Mark B. was still negotiating with a view of purchasing, he (George B. Stevens) weiSt to see defendant, and the defendant distinctly refused to negotiate with him when he learned that his customer was Mark B. Stevens; that subsequently Mark B. Stevens said he should not buy, and told witness that possibly Osborn would take it; that thereafter he opened negotiations with Osborn, and the sale was finally effected.
We think the circuit judge was right in holding that the undisputed testimony showed that plaintiff did not bring Osborn and defendant together. Osborn did not acquire his knowledge that the property was for sale from the plaintiff, directly or indirectly; but it seems that Mark B. Stevens, having the interests of his nephew in view, suggested that he (the nephew) look tip a customer, which he did. The defendant refused to sell either to Fyfe or Mark B. Stevens, except through the plaintiff, as he recognized the plaintiff’s claim that' he had negotiated with them. But no such claim was made as to Osborn. Confining our holding to the distinct question made by the pleadings and passed upon by the trial judge, namely, whether the plaintiff showed that Osborn, the purchaser, was a customer procured by him, we think the circuit judge’s ruling in the negative was correct.
The judgment will be affirmed, with costs.
The other Justices concurred. | [
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Lons, J.
The declaration in this cause was for slander, and alleged that defendant had accused the plaintiff of the crime of perjury in testifying as a witness in a cause tried in justice's court, and also that defendant had accused him of the crime of larceny, by reporting that he had •stolen his (defendant's) honey. The plea was the general issue, with notice that defendant would prove on the trial the truth of the charge as to the commission of perjury. On the trial the defendant was sworn as a witness, and testified that he had accused the plaintiff of perjury, and produced some evidence tending to show the truth of the accusation. Defendant denied, however, that he had ever accused the plaintiff of the larceny. The jury rendered a verdict in favor of defendant.
The defendant was permitted, under plaintiff’s objection, to testify that upon a certain evening, about three years before, he had some honey stolen, and to detail the circumstances under which it was taken. This is assigned as error, and it is claimed that plaintiff’s case was prejudiced by the admission of the testimony. The court was in error in admitting this testimony. The defendant, by his plea of the general issue to this charge in the declaration, would not have the right to prove the charge to be true. He in fact denied absolutely that he uttered the slander, and he did not have the right to offer evidence, the only purpose of which would be -to prove the truth of the charge. In such cases the rule is settled that the court should exclude, not only such circumstances as tend to prove the truth of the charge, but all circumstances which would tend to cast suspicion upon the plaintiff as having been guilty of the offense. Storey v. Early, 86 Ill. 461.
Error is also assigned upon that part of the. charge in which the court instructed the jury that the defendant admitted that he spoke the words attributed to him as to the charge of perjury, and further that, if they found by a preponderance of the evidence that, plaintiff did commit perjury, then as to that issue they should find for defendant.
The declaration charged the defendant with having published and declared of and concerning the plaintiff the following slanderous and defamatory words: “McNaughton (this plaintiff meaning) went down there (to the office of Byron V. Soule, a justice of the peace in and for the county of Clinton, and in the village of Ovid, meaning) and swore to a God-damned lie, or I would have beaten her” (the defendant in that suit). And that at another time he used these words: “He did swear to a Goddamned lie down at Ovid, and I won’t deny I said so. I wouldn’t have been beaten if it hadn’t been for John” (meaning thereby, and intending to chage, that in a case tried before Byron V. Soule, a justice of the peace, and in which one Jane Runciman was defendant and Charles A. Quay plaintiff, the said John B. McNaughton gave testimony material to the issue,, and in so doing committed the crime of perjury). The testimony given by the plaintiff bore out the allegations in the declaration, one Clarence Kimball testifying that he had heard Quay say “ he would have beat Jane Runciman, down at Ovid, if it hadn’t been for John McNaughton. He said he swore to a Goddamned lie.” George W. Kimball testified to the same thing.
It is claimed that the defendant did not admit on the trial that he spoke the slanderous and defamatory words as they were set forth in the declaration, but that his only admission was that he told one Exelby that “he [McNaughton] falsified,” and that he “ told Clarence Kim-ball that McNaughton swore falsely at the trial at Ovid.” This appears to be the only admission made by the defendant as to what he said of and concerning the plaintiff. It is therefore insisted that the court was in error in stating to the jury that the defendant admitted that he spoke the words attributed to him as to the charge of perjury, and that the plaintiff’s case was prejudiced by this charge, for the reason that the evidence on the part of the defendant was not identical with the charge, in point of law, as the gist of the charge was, “I wouldn’t have been beaten if it hadn’t been for John,” and that the defendant’s admission as to what -he said would not make the words actionable per se, while the words charged in the declaration are actionable per se. It is further claimed- that inasmuch as the declaration sets out words which are actionable per se, and the plaintiff having proved that such words were tittered, the defendant cannot, under his plea of justification, claim that he has justified when he proves he has uttered words which are not actionable per se, and which are not identical in point of law with the charge made in the declaration; and that under these circumstances the question whether the plaintiff did commit perjury should not have been submitted to the jury.
It is a little difficult to see how the plaintiff was injured by the charge as given, or what the real, contention of counsel is. The declaration sets out words which are actionable per se. The charge made was one of perjury. The defendant, under his plea of the general issue, gave notice that, if the words were spoken as alleged in the declaration, they were true. The plaintiff proved that the words were spoken, and rested his case. The defendant then took the case, and showed substantially that, in the suit referred to, defendant sued Mrs. Runciman to recover the principal and interest of a promissory note given by Mrs. Runciman to him for the price of some sheep sold to her by defendant. Defendant contended that Mrs. Runciman agreed to pay interest on the note, and that the note was correct as written. She denied that she was to pay interest, and claimed that the interest clause in the note was forged. The plaintiff in this cause was called as a witness by Mrs. Runciman, and testified that, in a conversation had with Quay in relation to the sale of the sheep and the price to be paid therefor, Quay said to him, among other things, that—
“I don't know.but what I have done just as well as if I had held onto them, for I have waited on her for the price without interest; but she takes care of the lambs, and the keep of the lambs is ■ worth-more to me than the interest on the price of the sheep."
On the trial of the present case, defendant offered testimony tending to show that the plaintiff did testify falsely before the justice in the Runciman suit. The court regarded the plea sufficient to admit this testimony, and directed tbe jury that, if they believed that plaintiff did testify falsely on that trial, they should find upon ■that issue a verdict for the defendant. We see no error in this charge, and if the court, by some inadvertence, stated to the jury that the defendant admitted speaking the words charged in the declaration, it is not clear how the plaintiff was prejudiced. The defendant had proved the words, as laid in the‘declaration, true, to the satisfaction of the jury, as they found with him. Conceding, therefore, all that plaintiff’s counsel claim, we see no prejudicial error in the charge.
Some other errors are claimed, which we do not deem of sufficient importance to discuss, as on another trial the rights of the parties will undoubtedly be fully protected.
For the error pointed out the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Hooker, J.
Plaintiff recovered a judgment for personal injuries received by falling into a cattle guard, fromi which defendant appealed. The' principal contest in the-case was over the question of defendant’s operation of the-road; it being claimed that it was not in possession of the-railroad at the time of the accident, though it was after-wards. The road was owned by another company. The-plaintiff claims that there was sufficient evidence that-defendant was in possession of the road at the time of the-accident to raise a question for the jury. The evidence of' the plaintiff upon the subject consisted of:
1. A traffic agreement granting to the defendant the-right to operate the road0 and have its earnings for 100 years from July 1, 1891, -and promising, on the part off the defendant, to raise $4,000,000 upon its bonds to equip-the road.
2. A mortgage executed by the officers of both companies to secure said bonds, given in conformity to' the agreement.
3. Testimony by the plaintiff that .she bought a ticket at the station of the Big Four Company (that being a name by which defendant is known), and that she supposed it was over the Cleveland, Cincinnati, Chicago & St. Louis road; that “James Truitt was the company’s agent at that place;” and that she supposed “the station and platform were on the ground of this' corporation.” To this last statement, counsel for the defendant said, “No question about that.”
4. James Truitt’s testimony- that 'he knew when this railroad company extended, its right of way through there, and that the station, platform, and cattle guard were on the company’s ground. He was not asked whether he was the agent of the defendant.
Upon this showing by the plaintiff, it is clear, and neither side disputes, that the Cincinnati, Wabash & Michigan Company was the owner of the railroad, and that whatever rights to enter into possession of or operate it the defendant had, it acquired from that company. In the light of that admitted fact, the testimony of Truitt did not tend to show that the defendant was in possession, as his testimony was as consistent with the idea that he referred to the Cincinnati, Wabash & Michigan Company as to the defendant. It was apparently undisputed that at the time of the trial the defendant was in possession of the road. The statement of the plaintiff that she bought a ticket at the station of the Big Four road was true, in a sense, though the Big Four road was not in possession at the time. She bought it at the station, and that station was, when the question was asked, the station of the Big Four road. Her suppositions at the time of the trial that the ticket was over the Cleveland, Cincinnati, Chicago & St. Louis Line, and that the station - and platform were upon the company’s ground, threw no light on the question of possession at the time of the accident.
It is plain that the testimony of these two witnesses did not furnish much light upon the question of defendant’s possession at the time. Some of this testimony was admissible, because it tended to show that the accident occurred upon the railroad, and that the ticket was purchased of the company which was operating it, and the motion to strike it out was therefore properly denied. Moreover, under ordinary circumstances, such evidence would be sufficient to sustain a verdict, if there was no evidence to the contrary. It cannot be said that it was no evidence of possession, and therefore the court did not err in refusing the request to charge that it was not direct evidence that the defendant was in possession. If the statement was intended to be that the plaintiff bought a ticket at the defendant’s station, technically it was as direct and comprehensive as though she had said that she knew that she bought a ticket at the station of the defendant. It was not as emphatic. It is the other evidence in the case that renders this testimony weak, and it is because it begets the belief that the witness may not have discriminated between the two companies. It was therefore for the jury to determine its value. The court might, with propriety, have said to the jury that this testimony should be viewed in the light of plaintiff’s means of knowing whether the defendant was in possession, but it was not error to refuse to instruct the jury that the testimony of the plaintiff and Truitt was not competent evidence that the defendant was operating the road.
■ The contract and mortgage were legitimate evidence that the defendant was in possession, and, in the absence Of the testimony given for the defendant, would have supported the claim of possession sufficiently to sustain the verdict. Being so, we cannot say that the testimony of the defendant has overcome it.
Defendant’s counsel argue that the right of defendant to take possession does not establish- the fact that it did so, and this is true; but the fact remains that, having a grant of the road, and having issued its bonds as it promised to do, it is not a violent presumption to conclude that it had taken possession. That presumption can be overcome by proof to the contrary, but it is for the jury to say when it is overcome. Moreover, cross-examination of the witnesses called to overcome this presumption developed the fact that the earnings of this road were not retained by the treasurer of the Cincinnati, Wabash & Michigan Company, but, contrary to ordinary custom, if not in, violation of the statute, they were sent to a bank in New York by direction of the president, who, it turns out, was president of the defendant; and it also appears that the treasurer’s book of the Cincinnati, Wabash & Michigan Company was in the hands of the defendant company, and that, although the court postponed the trial nearly a month to enable defendant to produce books and papers which would throw light upon the subject, notice to produce which was given, no effort appears to have been made to produce this book, which was no further away than New York. We think there was room for the argument that while the road was ostensibly managed through the employés of the Cincinnati, Wabash & Michigan Company, and in its name, it was actually conducted by and for the benefit of defendant, — a question which could only be determined by the jury. What has been said disposes of several of the assignments of error in relation to the introduction of evidence.
Counsel for defendant complain . that the plaintiff’s attorney was permitted to read to the jury the notice to produce documents and papers, and to argue that the defendant had not complied with the order of the court by producing them. It is said that the records of the court show no such order, that it would have been void if made, and that counsel could not properly assume that defendant had books or papers which it did not produce. The record in the case shows that the court made an oral order to produce these books, and gave counsel nearly a month to do so. This order- was probably no more or less than the usual determination, when such questions arise, that the plaintiff was entitled to the production of such documents. No exception is called to our attention, in relation to this order, taken at the time it was made. As to .the assumption that documents existed, it is sufficient to say that the witness testified that he sent $80,000 of the earnings of the road to New York, at the direction of the president of his company, and the books would show what disposition was made of it, which books were in defendant's possession. Those books were covered by the notice or. order, but were not produced. What was the inference, if not that defendant did not care to pro■duce them, for the reason that they would show the receipt .of this money by defendant? It was a natural and proper one, if these facts were established, and counsel might properly urge it upon the jury.
Various exceptions were taken at the close of the argument of counsel to statements made in the course' of such argument; among others, to his charge that “defendant was trying to dodge this liability by • claiming it was not operating the road;” that “defendant was a sea serpent, which had swallowed the small fish,” i. e., the C., W. & M., in 1891; that “it did not mortgage its other lines,but only that of the O., W. & M;” that the defendant Vas liable, regardless of the actual management; that “the Cleveland Company was a monster.” It is true that this controversy practically turned upon a cold- question of fact, i. e., whether the defendant was in control of the road at the. time' of the accident; ■ and> were the question to be submitted to a bench of judges, we doubt if counsel "would have couched his points in the language which he seems to have thought proper to use to the jury. The ■court might properly have required counsel to confine himself to a discussion of the facts' in more temperate language. We cannot, however, presume that it had the •effect that counsel for defendant seems to think it had. It may have had an , opposite effect upon the jury. We must suppose that, as men of intelligence, they were ■capable of comprehending the point at issue, and that, as honest men, they determined that point upon the testimony and the instructions of the court. As a rule, the trial court must control these - matters, in which it has a large discretion.
A mortgage upon the road, executed by defendant, ■dated in 1893, was offered in evidence. Counsel for ■ defendant allege this to have been .error. It is asserted in opposition that the language read from it was not objected to, or any exception taken. A reference to the record ■ shows that the admission of this mortgage was strenuously •opposed, and exception taken. It was dated a year after the admitted time that the defendant took possession. It was clearly immaterial, and had no tendency whatever to prove possession two years before. It was error to admit it. Pierson v. Spaulding, 67 Mich. 640, 649; Dikeman v. Arnold, 78 Id. 455, 460, 83 Id. 218.
A physician gave evidence tending to show that, as a :result of the injury, nenritis followed. This is alleged to have been inadmissible, under the declaration, because no •secondary injuries or results were counted upon. Neuritis was described as inflammation of a nerve. The declaration -alleged that plaintiff’s body was injured by dislocation, .straining, and laceration, and injuries of muscles, nerves, •and otherwise. The evidence tended to show that the knee and hip were injured, and that the sciatic nerve became inflamed in consequence. We think this was properly admitted, under the declaration.
It is unnecessary to discuss in detail the various other assignments of error. Many of them are upon refusals to •give specific requests, where the ground is covered by the general charge, or where, under our view of the evidence, there was no occasion to give them. We have examined them, and find nothing in them. calling for a reversal of the case.
For the error above mentioned the judgment must be reversed, and a new trial ordered.
The other Justices concurred.
The traffic agreement was dated April 1, 1891; the mortgage, May 9, 1891; and the accident occurred January 2, 1892. | [
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] |
Hooker J.
An action was brought against the defendant, as guarantor of payment and performance under a lease, to recover for two months5 rent of the premises. An action had previously been brought and recovery had by plaintiffs against the defendant upon this lease and assignment for earlier installments of rent. The judge admitted the record of the former proceedings, and instructed the jury that such proceedings conclusively established certain facts which entitled plaintiffs to recover the rent sued for, unless the defendant had proved to their satisfaction, by a preponderance of the evidence, that the plaintiffs accepted the property and assumed control after November 14, 1887 (the time of the commencement of the former action), by entering into possession themselves or by another to whom they had rented it. The defendant alleges error upon the introduction of the former record and upon the charge, his claim being that such proceedings were not conclusive of the questions raised by him in this case.
As to the introduction of the former record, it is clear that, 'if admissible for any purpose it was not error to admit it. The former action was between the same parties, and, if this record tended to show that any fact involved in this issue was litigated and set at rest in that case, it was proper evidence of such fact, though such record might not be conclusive upon all questions involved in the second case.
A reference to the pleadings in the first case shows that the plaintiffs sued as assignees of Sarah J. Ford of the lease in question; that the defendant was sued as guarantor; and that he was charged in the declaration with notice, of the assignment. The plea of the general issue was filed after the case' reached the circuit court. Accompanying it was a notice, which alleged a release by Sarah J. Ford of defendant from all liability upon the guaranty to pay rent. The notice alleged further that, about a month after the lease was made, Burton, the lessee, assigned the lease -to one Hill, with the consent of Mrs. Ford, who accepted Hill as her lessee, and thereby released defendant from responsibility upon his guaranty. It stated further that on September 1, 1887, Hill having vacated the premises, Mrs. Ford leased to one Gus Markstrum, who occupied until January 1, 1888, paying the rent up to that date, which defendant claimed was equivalent to his release. Upon the issues thus raised, plaintiffs, upon a trial before a jury, recovered a verdict and judgment.
What questions were settled upon this trial between the parties? The record does not show what points were contested by the introduction of evidence, but it is patent that before the plaintiffs could recover they must have shown the execution of this instrument by the parties to it, and its assignment to them by Mrs. Ford. Both of these were denied by the plea of the general issue. Being facts necessarily established upon a former trial, whether defendant offered evidence tending to disprove them or not, they were admissible. They were controverted by the plea, and it was shown that there was a trial and verdict, which necessarily involved these questions. The estoppel extends to all steps involved in the judgment as necessary steps or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis upon which it stands, upon the obvious principle that where a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion. Burlen v. Shannon, 99 Mass. 200, 203; Duncan v. Bancroft, 110 Id. 267; Dorris v. Erwin, 101 Penn. St. 239; Hayes v. Shattuck, 21 Cal. 51; Perkins v. Walker, 19 Vt. 144; Tuska v. O’Brien, 68 N. Y. 446; School-District v. Stocker, 42 N. J. Law, 115. It was therefore proper to receive the record.
The court instructed the jury to render a verdict for the plaintiffs, unless they should find that there had been a surrender of the premises, after November 14, to the plaintiffs. To sustain the judgment it must therefore appear from# the record that the evidence introduced established such liability, and, further, that no evidence tending to prove a valid defense' was excluded against defendant's exception. The bill of exceptions shows that the plaintiffs produced evidence tending to show that they purchased the premises from Sarah J. Ford; that at the same time she assigned to them her title to the lease in controversy; that K. S. Markstrum had paid them four months' rent from October 1, leaving two months’ rent due. The lease and guaranty and the assignment to plaintiffs were introduced. There was also testimony that notice of Ihis assignment was given to defendant. This, together with the files and records referred to, constituted the plaintiffs’ case. At this point the evidence showed prima facie (1) that the lease and guaranty were executed; (2) the assignment to the plaintiffs; (3) that two months’ rent was due, and unpaid. This evidence, standing alone, was sufficient to justify the instruction given, unless there was testimony given or offered tending to dispute it.
. The lessee named in the writing was one Burton. By way of defense, counsel offered several writings in evidence, ■executed before November 14, viz.:
First. An assignment by Burton to Hill of all of his interest, etc., in said lease, dated June 16.
Second. A paper, signed by Sarah J. Ford, of which the following is a copy:
“Bessemer, Mich., June 20, 1887.
“Mr. Fred Hill:
“You are hereby notified that I have this day, for value received, assigned and transferred to Markstrum, Larsen & Co., $44 out of the rent due July 1, 1887, according to your lease of the Wisconsin House, bearing date June 16, 1887; and in consideration of the acceptance of this order by said Markstrum, L. & Co., I hereby release K. S. Markstrum from further responsibility as surety on John Burton’s lease.
“ Sarah J. Ford.”
Third. A writing, dated June 26, signed by Sarah J. Ford, reading as follows, viz.:'
“Bessemer, Mich., June 26, 1887.
“ For value received, I hereby assign and transfer to Markstrum, Larsen & Co. the rent due me from Fred Hill for the Wisconsin House for month of September, and said Markstrum, Larsen & Co. are given full power of attorney to collect said rent as per the conditions of the lease between me and said Fred Hill.
“ Sarah J. Ford.”
Fourth. An acceptance of the above, reading as follows, viz,: ■
“June 20, 1887. Accepted at a total of $119.19; payable, $44.19 on July 1, and $75.00 on August 1, 1887.
“Fred Hill.”
These were offered upon the theory that they, or some of them, released defendant from any liability upon the guaranty. They were excluded,' upon the theory that the former judgment settled the fact that defendant was not released previous to the 14th day of November. Upon the same ground an offer to show by a witness that, at the time of the assignment of the lease from Burton to Hill, Mrs. Ford assented and formally released Burton, was denied.
It is plain that this testimony was admissible, unless the question of release was settled by the other trial, which depends upon the issues tried and decided thereon. 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. But it is a different matter when an action is sought to be maintained or defeated by showing a former adjudication of questions upon which it depends. In such case it must appear that such questions were litigated as a matter of fact; that they were submitted to and decided by the jury or court; and that they were not collateral inquiries, but. were crucial questions in the other controversy. Bendernagle v. Cocks, 19 Wend. 207; Badger v. Titcomb, 15 Pick. 409; Secor v. Sturgis, 16 N. Y. 548; Perkins v. Hart, 11 Wheat. 251; Sterner v. Gower, 3 Watts & S. 136; Wolf v. Welton, 30 Penn. St. 202; Hughes v, Alexander, 5 Duer, 488. That an adjudication in favor of a claim will not be conclusive of the minor issues on which the right depends, unless it appears not only that they were submitted to the jury but that they were considered and passed upon by them, is supported by the following authorities: Davidson v. Shipman, 6 Ala. 27; Chamberlain v. Gaillard, 26 Id. 504; Tams v. Lewis, 42 Penn. St. 402; Packet Co. v. Sickles, 24 How. 333; Lawrence v. Hunt, 10 Wend. 80; Garrott v. Johnson, 11 Gill & J. 173; Cecil v. Cecil, 19 Md. 72. The question may become one of law if the record contains the conclusive evidence of it, but it may happen that the record is not conclusive. In such cases, according to the great weight of authority, parol evidence is admissible to ascertain whether a given question was in issue, litigated, submitted, and decided, and possibly, in some cases, whether it was material. And in such event, under our system of pleading, the issue would not ordinarily be limited to the single question of former adjudication, but the party would be at liberty to support his claim or defense by other evidence, which would be received subject to the effect of the evidence upon the question of former adjudication. Sawyer v. Woodbury, 7 Gray, 499; Jennison v. West Springfield, 13 Id. 544; Burlen v. Shannon, 14 Id. 433; Jackson v. Wood, 3 Wend. 27. There are cases from which it would be inferred that when a party had made defense to an action all possible defenses would be cut off in a subsequent action where the same questions were raised, as in this case, where the defendant seeks to introduce a defense to an action upon a second installment of rent which he did not offer - to the action upon a former installment. According to these cases he would be concluded. But this point was distinctly ruled in the case of Jacobson v. Miller, 41 Mich. 96, following the case of Cromwell v. County of Sac, 94 U. S. 351, 356. The latter case contains an exhaustive discussion of the question. Mr. Justice Field, in delivering the opinion, says:
“ On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause because it might have been determined in the first action. Various considerations other than the actual merits may govern a party in bringing forward grounds of recovery or defense in one action which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considerations like these ought not to be precluded from contesting, in a subsequent action, other demands arising out of the same transaction. A judgment by default only admits, for the purpose of the action, the legality of the demand or claim in suit; it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration may contain different statements of the cause of action in different counts. It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding.”
He quotes the language of Mr. Justice Willes, as follows:
“It is quite right that a defendant should be estopped from setting up in the same action a defense which he might have pleaded, but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defense in a second action because he did not avail himself of the opportunity of setting it up in the first action. * * * I think we should do wrong to favor the introduction of this new device into the law.”
Mr. Justice Byles said:
“ It is plain that there is no authority for saying that the defendant is precluded from setting up this defense.”
Mr. Justice Keating said:
“This is an attempt on the part of the plaintiff to extend the doctrine of estoppel far beyond what any of the authorities warrant.”
These eases seem to vindicate the right of a defendant to allow judgment to go by default, or to make such defense as he may choose. If he suffer judgment by default, he is not estopped, in a subsequent action for another demand, from making any defense; and in other cases he is estopped only to the extent of the defenses made to the first action.
It appearing that the pleadings in the former suit were broad enough to cover the defenses now sought to be raised, and that no evidence was offered tending to- show whether they were litigated and decided or not, we may next inquire, upon whom is the burden of proof? Must the plaintiffs show that these defenses were actually made and passed upon, or will it be presumed that all questions that could be raised under the pleadings were decided? We think it was not for the defendant to prove the negative. The plaintiffs relied upon an estoppel, and it was incumbent upon them to show the facts necessary to constitute the estoppel. Wells, Ees. Adj. § 215; Lawrence v. Hunt, 10 Wend. 85. Until they did so, the defense was good; and, if the existence of the estoppel was a question of fact for the jury, the defendant should have been allowed to introduce his evidence tending to show a release. If the jury found the estoppel, they would disregard the evidence of the release; but, as it could not be known in advance how they might find upon that question, the court should have admitted the testimony.
It follows that the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Hooker, J.
The plaintiffs were partners in a venture involving the publication and sale of a book. It was the principal business of Thorpe, but not of Rogers. In furtherance of their venture, they delivered to Kaynor & Taylor, copartners, a quantity of paper and electrotype plates, under a contract by which they were to do the press work for $300. Subsequently, this contract was modified so as to include the binding of the books. Raynor & Taylor performed the labor, and delivered upwards of 5,000 of the books, but retained about 500 finished volumes and some unbound sheets, and about 5 reams of the paper furnished. At this juncture, Raynor & Taylor commenced an action against the plaintiffs for the recovery of a balance of the contract price, and attached the property in their hands. Judgment being rendered in .their favor for $145.62 damages and $10 costs, the property attached was sold upon execution; and the plaintiffs brought trover against Raynor & Taylor, and recovered a judgment of $250. There was evidence tending to show that the property was worth $500. This recovery was had upon the theory that plaintiff Thorpe was entitled to exemptions from the property sold.
Counsel for the appellants asserts:
1. That the plaintiffs could not properly join in an action of trover for their individual exemptions.
2. That, under the undisputed evidence, Rogers was entitled to no exemptions from this property, and was therefore an improper party to the action.
3. That the judgment recovered by defendants was for the purchase price of the property, and that such property was therefore subject to execution therefor.
4. That appellants had at least a lien upon the property for their labor, as against which no exemptions could be claimed.
It is plain that the property levied upon and sold was subject to the levy so far as any rights growing out of the partnership are concerned; and, if Rogers had no right to exemption, he has no cause of action against the appellants, for they have invaded no legal right of his. It is equally clear that he has no right to complain of their denial of Thorpe’s right to exemptions, for he has no interest in the property, all of his interest, having passed to the appellants by the sale. One who has no interest in or right to the property is not a proper party to an action at law for its recovery, and parties who have no joint interest cannot join as parties plaintiff. While it is true that in the case of Skinner v. Shannon, 44 Mich. 86, several partners recovered their exemptions in a joint action of trover, the question of misjoinder appears not to have been raised. In the case of McCoy v. Brennan, 61 Mich. 362, it is expressly held that copartners of one bringing trover for exemptions are not necessary parties, and the obvious fact that the right to exemption is individual is asserted. See, also, Russell v. Lennon, 39 Wis. 570. We think the misjoinder is plain, and it is well settled that a misjoinder of plaintiffs is fatal. 1 Saund. PI. & Ev. 11.
By attaching this property, the appellants have shown that they considered this property to be owned by the plaintiffs. As such, they put' labor upon and other material with it, and had a lien upon it as against the firm, and have proceeded to avail themselves of it by judgment and execution. Unless it can be said that the lien must give way to the exemption, they obtained a valid title by the purchase, so far as appears from the record. If this property is to be held to be exempt, it must be under the eighth subdivision of the statute. How. Stat. § 7686. Together with a large quantity of similar property, it was delivered to the appellants for the purpose mentioned. Before it was to be used for the purposes of trade, appellant’s labor upon it was necessary. Under well-settled rules of law, a lien attached for this labor, and there is no reason for supposing that it was not so understood and intended. Indeed, the record shows that the labor was to be paid for when the books were delivered. If an intention to create a lien was necessary, this testimony implies it, and there is nothing to contradict it. By the provisions of the ninth subdivision of section 7686 of Howell’s Statutes, certain liens upon exempt property are void; but the property mentioned in the eighth subdivision, under which this property is claimed to be exempt, is expressly excepted. We think that, when the plaintiffs made this contract with appellants, they waived their exemptions, and subjected the property to the lien of appellants for their labor. '
The judgment will be reversed, and a new trial ordered.
The other Justices concurred. ■ | [
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] |
Montgomery, J.
Eespondent was convicted of maliciously threatening to accuse one Paul Lucas of the crime of perjury, in violation of How. Stat. § 9093.
The facts are that the respondent is an attorney, .residing at St. Paul, Minn., and was the attorney of one Joseph Stehr, who had a suit pending in the Minnesota courts against Paul Lucas and others, involving the title to certain lands in St. Paul. Eespondent came to Alpena in December, 1893, for the purpose of taking the depositions of witnesses in the case referred to, and, as subsequent events would indicate, with the further purpose of procuring a deed from Lucas to his client. On the 13th, 14th, 15th, and 16th of December, respondent examined Paul Lucas as a witness in the case, before a circuit court commissioner. After the testimony was concluded, respondent invited Lucas to his room at the hotel, and, while there, Lucas swears, in substance, respondent threatened to prosecute him for perjury unless he would deed the land to his (respondent's) client, for a named consideration. These threats did not prove effectual, and on the 25 th day of January, 1894, respondent made a complaint against Lucas for perjury, and caused his arrest. An examination was not had at once, but Lucas, was taken to the office of the prosecuting attorney, who permitted him to go at large, with instructions to report to him (the prosecutor); and, apparently, the prosecutor interested himself in the effort to procure the deed from Lucas and his wife. On the 27th day of January the prosecuting attorney and the respondent in this case and Lucas started to drive from Alpena into the country, where Lucas resided, to procure the execution of the deed. Mr. J. H. Cobb, the attorney who now represents the people in this case, one Charles Golling, Judge Kelley, who presided at the trial, and the sheriff of Alpena county, followed, the party for the purpose of .preventing a consummation of the transaction. The deed was not procured, but Lucas returned to Alpena, a justice was called in, and the respondent was complained against for the offense here in controversy. The other facts necessary to an understanding of the case will be stated in connection with the particular questions to which they relate.
1. It is claimed that the information was not properly filed, for the reason that the respondent was never properly held for trial by an examining magistrate; the precise point being that the justice failed to return that he found that an offense had been committed, but certified that he found that there was probable cause to believe that an offense had been committed, and that there was probable cause to believe the respondent guilty thereof. It was held in Turner v. People, 33 Mich. 368, that it was not necessary for the justice to make such certificate to the circuit court, and that the fact of taking bail imports the decision of the justice, and the fact of giving it imports a recognition of it by the accused. The ruling has been followed in Cargen v. People, 39 Mich. 549, and again in People v. Ten Elshof, 92 Mich. 167. It is suggested that-the return fairly excluded the idea that the justice found as a fact that the offense had been committed. But the case is in this respect identical with that of People v. Ten Elshof, and is ruled by that case.
3. It is next contended that the complaint and warrant, set forth no offense. It is claimed that the complaint does not specify the intent mentioned in the statute, or sufficiently set forth the threats, or specify to whom the threats were made, or state whether the threats were in writing or verbal. The warrant follows the complaint. The complaint was, in substance, as follows:
“That the said John J. Whittemore did, on the 16th day of December, 1893, willfully and maliciously, verbally, threaten to accuse him, the said Paul Lucas, of willful and corrupt perjury, and did then and there, on the 16th day of December, 1893, at the city of Alpena, county and State aforesaid, threaten to make a criminal complaint for such willful and- corrupt perjury against him, the said Paul Lucas, unless he would sign and execute a certain paper writing and deed conveying to another the lands and tenements of him, the said Paul Lucas, situate and being in St. Paul, in the state of Minnesota, with the intent and purpose of procuring the signature of the said Paul- Lucas against his will to said certain paper writing and deed, conveying his lands and tenements as aforesaid, with intent to injure and defraud him, the said Paul Lucas, contrary to the form of the statute,” etc.
We think the complaint does show sufficiently that the threats were verbal.
As to the point that it is not stated to whom the threats were made, the complaint follows the language -of the statute in this regard, and while, in the precedents, the name of the party to whom the'threats are made is usually set out, we find no case, which holds that the omission is fatal to the indictment. An jndictment in this form was . held good in State v. Young, 26 Iowa, 122, although the precise point seems not to have been distinctly made.
We also think the complaint in the present case sufficiently sets out the intent. The statute makes it an offense to make such threats with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will. The intent to procure the signature of Paul Lucas against his will to a deed of land was an intent to compel Paul Lucas to do an act against his will, to wit, to affix his signature tp a deed.
3. The court appointed J. H. Cobb to represent the people on‘the trial, and this is complained of. Mr. Cobb had not acted as attorney for Lucas in any civil proceeding which was pending, so as to be disqualified under the provisions of the statute (section 557). It appeared that Mr. Cobb was attorney for one Robert Rea, who had loaned $50 to Lucas on lps (Lucas’) depositing with Rea his title deed to the land in question. After Mr. Lucas’ arrest, Mr. Rea said to Mr. Cobb that' Lucas had been arrested, and requested Mr. Cobb to investigate it. Mr. Cobb saw Mr- Whittemore and the prosecuting attorney, and told Mr. Whittemore that, if he went into the country to force Lucas to give the deed,' he (Cobb) would follow him, and prevent his doing it; and it appears that he did so. He testified in the .circuit court that he was not interested for Lucas at the time the prosecution was commenced in ■any way, but that he had since been retained to defend-Lucas in another criminal proceeding. We think it cannot be said that he was employed as attorney in any civil proceeding involving the same state of facts as that involved here. The determination of this case would not in any way affect the criminal prosecution pending ' against Lucas for perjury.
4. The circuit judge charged the jury, in effect, that if the threats were made with the wrongful intent charged, and were made maliciously, the offense was complete, whether Lucas was or was not guilty of the offense of perjury. The respondent complains of ' this holding, and contends that if the respondent, having an interest in the matter, believed that Lucas was guilty of perjury, he had the right to threaten to prosecute Lucas, unless he should place the title where it belonged. But we think the law is settled otherwise. 2 Whart. Or. Law, § 1664; Rose. Or. Ev. *979; Rex v. Gardner, 1 Car. & P. 479; Reg. v Cracknell, 10 Cox, Cr. Cas. 408; Com. v. Buckley, 148 Mass: 27; Com. v. Coolidge, 128 Id. 55; State v. Goodwin, 37 La. Ann. 713. The respondent in the present' case denied having made the threats imputed to him, or haying made any demand upon the prosecuting witness. His statement of the conversation was, in effect, that he offered to compromise the litigation with the complaining witness.
Respondent further contends that the testimony tending to show that Lucas was in fact guilty of perjury was. proper for two purposes:
“ It would tend to show that he was not a truthful witness, and that the threats were not made maliciously.”
It has been held in some cases that, when the question involved is whether the demand for money is a demand-for what respondent is in no way entitled to, evidence that the prosecuting witness has been guilty of an offense for-which the accused is entitled to demand compensation is admissible, as bearing upon the question of the intent;, that is, to determine whether the accused is seeking to recover his own, or to extort money which does not belong to him. Com. v. Jones, 121 Mass. 57; Mann v. State, 47 Ohio St. 556. The reasoning of the latter case is against the clear weight of authority, as is apparent from an examination of the cases hereinbefore cited. In the case of Com. v. Jones, the fact that a demand was made upon the complaining witness was admitted by the accused, and evidence that the complaining witness had been guilty of a wrong against him, for which he was entitled to demand compensation, was held admissible, as having a bearing upon the question of the respondent’s intent, he having denied a threat of prosecution. But in the case of Com. v. Buckley, decided by the same court, it was held that evidence that the complaining witness had in fact committed the offense was not competent for the purpose of impeaching him; and it was also said of the other contention made by the respondent here, that it was competent on the question of malice:
“The malice required by the statute is not a feeling of ill will toward the person threatened, but the willful doing of the act with the illegal intent. If the threat was willfully made with the intent to extort money, it was a malicious act, and the fact that the charge was true would be immaterial.”
We think there was no error in the ruling in this regard.
5. Respondent’s counsel asked an instruction as follows:
“If the respondent said to Paul Lucas, ‘You come not in my will and give me a deed, I send you and your sister to State prison for life,’ this would not constitute a crime.”
The circuit judge charged the jury, and we think correctly:
“It would not be», necessary that the precise words should be used, that he [the respondent] would complain of him [the complaining witness], or charge him with the •commission of perjury. If he used language which clearly imported that intention, — clearly implied and imported that he intended to charge him with false swearing and perjury, — it would be sufficient.”
And, further:
“ It is claimed here by the people that the direct charge was made that if this old man, to • state it in his own language, did not come under or within his will, he would .send him and his sister to the penitentiary for life. * * If you find in this case that, in connection with that statement, with that threat, he had been directing his •attention to the fact that he had sworn falsely, or sworn in conflict with other witnesses, you have a right to •determine whether it was a threat that he would send him to the penitentiary for life for such discrepancies in his testimony, or not.”
We think this charge fully justified by the record in the case.
6. Complaint is made of the admission of testimony relative to the subsequent arrest of the prosecuting witness at the instance of respondent, and to the attempt subsequently to procure the execution of the deed by Lucas. We think this testimony was admissible as bearing upon the respondent’s intent.
A careful examination of the record convinces us that them was no legal error committed on the trial.
The conviction will be affirmed, and the case remanded for further proceedings.
McGrath, C. J., Long and Hooker, JJ., concurred. Grant, J., did not sit. | [
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Hooker/ J.
Upon, an information in the nature of quo warranto, a judgment of ouster from the office of township treasurer was rendered by the circuit court against .the defendant, who brings the case here for review.
Eelator received a majority of the votes, but it is contended that he was not the nominee of any party, that the ticket was not properly certified and not. entitled to a place upon the ballot, and that such tickets should not have .been counted for relator.
The voter finding the ticket upon the ballot cannot be required to determine its regularity at his peril. This might involve a necessary knowledge of facts difficult to ascertain. He may safely rely upon the action of the officers of the law, who he has a right to suppose have done their duty.
The judgment will be affirmed.
The other Justices concurred. | [
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Grant, J.
The title to Act No. 358, Local Acts of 1891, reads as follows:
“An act to establish permanent dock, safety, sanitary, and building lines along the shores and margins and in the waters and on the bed of Grand river, within the corporate limits of the city of Grand Eapids; and to provide for the building and maintaining of suitable masonry walls along such lines; and to authorize the city of Grand Rapids to acquire private property for such public use.”
The body of the act provides the method of procedure for the establishment of such Tines, and the condemnation of property necessary for the purpose. Acting under this statute, the relator filed a petition in the superior court of Grand Eapids to secure the establishment of such lines on the east and west sides of Grand river. Certain parties defendant answered the petition, and. attacked the constitutionality of the act upon various grounds. The respondent entered an order dismissing the petition, holding the act unconstitutional. The relator thereupon filed a petition for the writ of mandamus in this Court to compel the respondent to vacate said order of dismissal. An order to show cause was granted, and a copy of such order and of the petition was duly served upon the respondent. No answer has been filed, and none of the parties interested have appeared in this Court to contest the issuance of the writ.
Under Supreme. Court Rule No. 63, all the material averments in the petition are admitted by the respondent and the parties interested to be true; and a peremptory mandamus should issue as prayed.
It is insisted, however, by counsel for the relator, that, inasmuch as this is a ease of public importance, the determination ought not to rest upon a default order. The obvious reply to this is that constitutional questions ought not, as a rule, to be determined by courts upon ex parte arguments. This petition has given the defendants in that proceeding their day in court, and the order in this Court, overruling the order of the court below, is conclusive and binding upon them as to all questions raised by their answers.
There is, however, one question which we are requested to determine, which seems so clear that we feel justified in acceding to the request of counsel. It is claimed that the title to the act contains more than one object, and is therefore multifarious. This appears to be based upon an erroneous construction of the title, — that it provides for different lines, for different purposes. We 'do not think it was intended to provide for the establishment of one line for docks, another for sanitary purposes, another for safety, and still another for building. The object was to establish one line for all these purposes. Considered in this light, the title fulfills the requirements of the Constitution.
The writ of mandamus will issue; and inasmuch as it is possible that, since the petition was filed, other parties may have acquired interests in the premises by transfer, mortgage, or otherwise, the relator will be allowed to amend its petition in the superior court, making such persons, if any there are, parties. The relator will recover costs.
McGrath, O. J., Long and Montgomery, JJ., concurred. Hooker, J., did not sit. | [
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] |
McGrath, 0. J.
This is certiorari to the circuit court to review an order committing plaintiff for contempt. Swarthout brought suit in justice^ court against Elizabeth Lucas. Defendant had judgment, from which plaintiff appealed.
On motion to dismiss the appeal, the following order was entered:
“In this cause, motion having been made by Fred. L. Eaton, Jr., attorney for the defendant and appellee, to dismiss the appeal for failure to comply with the statute, after hearing counsel for the respective parties therein, it is ordered that the said plaintiff and appellant pay to the said defendant and appellee the sum of $17.75, justice’s fees in said cause, as provided for in section 7003, Howell’s Annotated Statutes, and the bond in said cause be amended, within 10 days; and, in default of said plaintiff complying with said conditions as aforesaid within said time, the said appeal to .be dismissed.
“And it is further ordered that the said plaintiff pay to the said defendant’s attorney the sum of $5, as an attorney fee for said motion.”
The purpose of section 7260, How. Stat., is to enable courts to enforce interlocutory orders, no other means of enforcement being provided by statute. Section 7257 expressly confines the remedy by contempt proceedings to cases where, by law, execution cannot ‘be awarded. Section 7021 expressly provides that, if an appeal be dismissed or discontinued, the court shall enter judgment in favor of the appellee for costs. In Detroit & Birmingham Plank Road Co. v. Circuit Judge, 27 Mich. 303, it was held that the proper practice, in case oft a motion to -dismiss an appeal for defects in the affidavit or bond, is to make an order nisi that the appeal be dismissed unless, within a time specified, a new and correct affidavit or bond be filed. The court had the power to enter such an order, and to make the payment of the costs one of the conditions, and a part of the judgment in case the other conditions were not complied with. The case must be treated as though such practice had been followed. The court having ample power to enforce its order, and to award an execution for the costs, it could not, by the mere form of the order, deprive the party of the protection of the statute.
The order adjudging plaintiff guilty of contempt must be set aside, with costs .against defendant.
. The other Justices concurred. | [
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McGrath, C. J.
Plaintiff’s husband died testate, leaving the west half of certain lands on section 22 to plaintiff, during her life, and upon her death to his brother Dennis; the east half of said lands to his brother, Dennis; and certain other land, consisting of 32 acres, to two nephews, providing that such real estate should be sold when the nephews became of age, and the proceeds divided equally between said nephews. The will further provided that the widow was “ to have firewood off 5 acres of the south-east corner” of the 32 acres, and that she “is to have control of these 32 acres until these children [the two nephews] become of age.” Plaintiff cut from the 5 acres named, and sold to one Bennett, a quantity of ash and elm logs. The widow and Bennett were enjoined in a proceeding in equity, on behalf of the nephews, from removing the logs. Pending a final hearing in that proceeding, plaintiff attempted to cut the logs into firewood, and Pat rick Hogan* guardian of one of the nephews, and James Hogan, the other nephew, went upon the land and took away the logs. Plaintiff brings replevin.
It is conceded that at the time of the cutting of the logs there were a number of large beach and maple trees upon the 5-acre tract, which were more suitable for firewood than the ones cut, but it is claimed by plaintiff that' her intention was, with the proceeds of the logs, to' buy coal for fuel.
It is insisted by plaintiff that the clause of the will giving the wife control of the' 32 acres during the minority of the nephews imported 'a tenancy without impeachment for waste. The provision of the will giving to plaintiff the right to firewood from the 5 acres is inconsistent with an intention to give to the plaintiff greater powers or privileges respecting the 5 acres. It must be regarded as indicating the character of the use which she is to enjoy of that portion of the 32 acres. The right to cut firewood from woodland must be exercised in the usual manner, and cannot be extended to the use of the more valuable timber for other purposes, and does not include the right to cu^ such timber into logs, and with the proceeds buy fuel, so long at least as there is an abundance of fuel timber. Phillips v. Allen, 7 Allen, 115; Padelford v. Padelford, 7 Pick. 152; 1 Tavl. Landl. & Ten. § 352.
The will gives the 32 acres to the nephews, and provides that the same shall be sold when they become of age, and the money divided equally between them. Executors are appointed, but no estate or title is vested in them as trustees, nor is a power of sale given to them. Under the rule laid down in Mandlebaum v. McDonell, 29 Mich. 78, the devise to the nephews must be regarded as of a present vested remainder in fee. The cutting of the timber was clearly waste. The injury was one done to the inheritance. The property in the logs was in the defendants, and they might seize it, bring trover for its conversion, or replevy it. 1 Washb. Seal Prop. *119; Howard v. Patrick, 38 Mich. 795, 803.
The only other question raised -by the assignments is as to the effect of the pendency of the chancery cause upon defendants’ rights. The bill filed prayed that defendant therein might be restrained from cutting, selling, or disposing of timber, except for firewood, and that defendant might be required to account for all money received from the sale of logs, and that the logs then on the land might be sold under the direction of the court, and the proceeds decreed to belong to complainants. The bill did not pray for an accounting as to .the logs not disposed of. The main object of the bill was an injunction to prevent further cutting, and the sale of the logs which had been cut. Whatever may have been the plaintiff’s purpose, if she had succeeded the effect would have been to defeat a sale of the logs under, the direction of the court. The theory of the bill was that complainants. therein owned the logs. By her conduct, 'a danger to the property not contemplated when the bill was filed was threatened. The statu quo was changed by plaintiff’s own conduct, and, in view of another danger, defendants had the right to avail themselves of another' effective remedy to protect their propsrty.
The judgment is affirmed.
The other Justices concurred.
For a copy of the will, see Hogan v. Hogan, 44 Mich. 148. | [
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Long, J.-
This is an action of assumpsit on a promissory note for $150, given by defendant French to Webber, Jnst & Co., and indorsed by défendant Alderman for accommodation. Plaintiff got the note by indorsement after maturity. Defendant Alderman, it is conceded, received none of the proceeds of the note. Webber, Jnst & Co. were a copartnership doing a banking business, the firm being composed of Samuel W. Webber, Josiah E. Just, Charles W. French, and a Mr. Fox. After the note matured, defendant Alderman called upon Charles W. French, who was a son of George W. French, the maker of the note,' at the bank, and claims that it was there arranged between them that he should be released from the note. He was asked to give the conversation that took place at that time, and said:
“I stepped into the bank, and said to Charles French, in regard to his father’s note that I was ony — the one that was about due; spoke to him about it, — and he says: ‘You •needn’t pay any further attention to that note. Father has put means in my hands so I can take care of that note. I will release you entirely from the note, and see .to it.’ I relied upon that, that his father had put means .in his hands by which he could take care of the note, and he would pay the note. I said nothing about paying the not'e after that.”
He was asked:
“You understood that the means were in Charles French’s hands, and not in the hands of the firm ?
“A. Yes, sir; Charles French’s hands.”
It was also claimed by defendant- Alderman that at that time the maker had property in his hands sufficient to pay the note, but had since become insolvent. Under this •evidence the court below directed a verdict in favor of •plaintiff against defendant for the amount of the note and •interest. Judgment was entered upon the verdict, and ■defendant Alderman brings error.
# Counsel for defendant seeks to invoke the rule that where the creditor promises to exonerate the surety, or to look solely to the principal for payment, and the surety is .induced by such promise to postpone or relinquish any of the means of indemnity to which he might otherwise have resorted, it will take effect as an equitable estoppel, and deprive the promisor of the power of retraction. This is .a correct statement of the principle. In Harris v. Brooks, 21 Pick. 195, 197, it was said:
“A parol declaration of the holder to the surety that he would exonerate him, and look to the principal only, is a good defense, on the ground that it lulls the party into security, and prevents him from obtaining his indemnity; and it would, be fraud on the part of the holder •afterwards, contrary to such assurance, to call upon such .surety.”
The same rule was laid down in Rowley v. Jewett, 56 Iowa, 492.
But there is no showing in the present case that the-holders of the note, Webber, Just & Co., ever made any such promise. It was the individual promise of Charles W. French, and from the testimony of Mr. Alderman he looked to Charles W. French personally' to pay and take care of the note. Charles W. French was not pretending to make the promise in -behalf of the owners of the note, and it is evident that Alderman did not so regard it, for1 he was expressly asked if he understood that the means to ■ pay the note were in Charles French's hands, and not in the hands of the firm, and responded, “Yes, sir; Charles French's hands." The promise he relied upon, then, was-the individual promise of Charles W. French that he had means in his hands to pay the note, and would pay it,, and release him (Alderman) upon it. The case is too-plain for argument that this promise cannot be construed as the promise of Webber, Just & Co. to release Mr. Alderman, and the court below very properly directed the-verdict for plaintiff.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Long, J.
Catherine Schilling died testate September 19, 1883, leaving five children her surviving, to wit, Caroline Friederika, wife of Thomas Moore; Heinrich M., aged 18 years; George L., aged 13; Herman M., aged 11; and Maria W., aged 6 years. The will was admitted to probate October 23, 1883. The provisions of the will necessary to a discussion of this case are as follows:
“First. After the payment of all my debts and debts of my funeral and other expenses, I give and bequeath and devise my estate as follows: To my four children Heinrich Martin Schilling, George Ludwig Schilling, Herman Martin Schilling, and Maria Wilhelmina Schilling, each one-fifth (1-5) part, and to the child or children of my daughter Caroline Friederika, formerly Schilling, and at present wife of Thomas Moore, of Detroit, Michigan, one-fifth (1-5) part, of all my real and personal estate, goods, chattels, moneys on hand, in bank or otherwise, bills re•ceivable, and all other articles of every name and nature.
“Second. Provided always, that none of my said real estate shall be sold or divided between my said heirs before my youngest child is at the age of twenty-one (21) years.
“Third. And it is hereby expressly provided that in case my daughter Caroline Friederika, wife of Thomas Moore, should die without leaving any child or children, then their fifth part shall be given to my first four-mentioned children, share and share alike.”
At the time of the death of the testatrix, her daughter Caroline Friederika Moore had one child, Grace by name. September 20, 1884, another daughter was born, — the present claimant, Della Moore, — and in November, 1886, Grace died. In 1887, another daughter, Minnie by name, was born to Caroline Friederika Moore, but she died in the fall of that year, and shortly after her death the mother-died. Thus the only child living at her death was Della. The bulk of Mrs. Schilling’s property was in real estate, and it so remained until January 12, 1891, when the greater-portion of it was condemned by the city for the purpose of opening a street. Thereby a fund of $4,475 was created,, which by order of this Court was turned over to the executor, and is now in his hands. It is agreed between counsel that the fund thus created shall be treated as real estate, and is subject to the law relating thereto. Upon, the settlement of the estate the probate court made an order of distribution of the residue after payment of debts, etc., giving to Della Moore one-fifth part. The executor and the other devisees- appealed. This order of distribution was affirmed in the circuit. An appeal is taken from that, order of affirmance.
Counsel for claimant, Della Moore, contend:
1. That upon the death of Caroline Friederika Moore-the claimant, Della, became absolutely entitled to a one-fifth interest in said estate.
2. That the second paragraph of the will, which provides that no distribution of the estate shall be made until the youngest child becomes of age, is invalid, and therefore the claimant .is entitled to immediate possession of her share.
The probate and circuit courts must have arrived at this-conclusion, as an order of distribution was made, though, the youngest child of the testatrix has not yet attained her majority.
On the other hand, it is contended by counsel for ap pellants that the estate granted to the claimant is a vested future estate, without the intervention of a precedent' estate, subject to be divested in favor of the children of the testatrix upon the happening of a contingency subsequent, to wit, the extinction of the class now consisting of the claimant, Della Moore, before the period of distribution; and counsel argue that it is the contingent interest of the children of the testatrix which counsel for claimant leave out of sight; that it is this interest which, in this case, prevents the claimant from taking a fee-simple; that the fee is not held in abeyance, but is vested; that counsel for claimant make no distinction between an estate defeasible upon condition subsequent and a fee-simple; that the fee passes in the one instance as well as in the other; that the claimant has a fee interest, but not a fee-simple absolute interest. Claim is therefore made that such construction should be given the will as to protect the contingent remainder over to the children of the testatrix* and hence no distribution should be made until the arrival at age of the youngest child of the testatrix, as that is the, period fixed- by the will for distribution.
We cannot assent to this proposition. By the first paragraph of the will the four children Heinrich Martin*. George Ludwig, Herman Martin, and Maria Wilhelmina were each given one-fifth. This is a devise to each of' them of one-fifth of the estate in fee-simple absolute.. The 'Other fifth is given by the same paragraph to the-child or children of Caroline. The child or children of' Caroline take this one-fifth subject to the conditions of' the third paragraph. But by this third paragraph, if Caroline should die without leaving any child or children,, the four children of the testatrix first named were- to. take this other fifth in fee; if, however, Caroline left child or children her surviving, such child or children should take,! this fifth in fee. Caroline did leave a child her surviving, •the claimant in this case.
In giving construction to the will, we must, if legal, •carry out the intent of the testatrix. This one-fifth is the only part in controversy. When the testatrix died, ■Caroline was living, and had one child, Grace, who took •this one-fifth part in fee, conditioned, however, to let in •after-born children of Caroline, who would take an equal .share with her. Grace died, Della was born, and Minnie was born and died, leaving Della the only representative •of this class. Della then held the estate in fee, subject to the contingency of being opened to let in other children born to Caroline to share with her, and the further contingency of surviving her mother, Caroline. These are the ■only contingencies provided for in. the will. It may then be said, that at the death of the testatrix this one-fifth part vested in fee in Grace, subject to the contingencies mentioned; and that Della, who is the representative and survivor of this class, and took this one-fifth interest in fee upon these contingencies, now. holds this fifth part in fee-simple absolute by the death of her mother, for by the death of Caroline leaving a child all possibility of the .children of the testatrix taking has become extinct.
Counsel for appellants concede that on the death of the rtestatrix it was a vested future estate in a class subject to -open .and let in new members until the death of Caroline ..Moore, under sections 5523, 5524, How. Stat. But they • claim that it was subject to be wholly divested by the .extinction .of the class before the period of distribution, rin which .case there would be a remainder over to the i children of the testatrix. The period of distribution, however, is not fixed by the third paragraph of the will, and the time when this fifth part was to vest absolutely in fee fin the .children .of Caroline is not dependent upon the •time of the distribution fixed by the second paragraph of the will, but is fixed by the time when Caroline should -die, leaving child or children. .
The contention that the second paragraph is void has great force. As to the four-fifths of the-estate which was vested in the first-named children in fee, it is void; for one of the essential features of an estate in fee is the right to convey, and when a testator attempts to attach a restriction on such right to convey such restraint is void .as repugnant to the nature of the estate. Mandlebaum v. McDonell, 29 Mich. 78. At the death of Caroline Moore, her daughter Della took the fifth part in fee, as no contingency can now arise by which it could be divested; and, so far as the children of the testatrix are concerned, they have no interest in it whatever. There is no provision in the will as to what disposition is to' be made of the income from the estate. Whatever income there may be from this one-fifth, since it vested in the claimant at the death of her mother in 1887, she would be entitled to. The second clause of the will being void as to the four-fifths given to the testatrix’s children, it can hardly be said that it can be upheld as to the one-fifth now resting in claimant. The intent of the testatrix was to keep the estate intact until the arrival at legal age of the child Maria Wilhelmina, then aged six year's. It has failed as to four-fifths of the estate because of the restraint upon alienation. It cannot be said that the testatrix intended to tie up this one-fifth and not the whole. We think the court. below very properly ordered distribution to ■ the • claimant as well as to the others.
The judgment must be affirmed.
The other Justices concurred.
Grace was bom September 18, 1882, and the will was executed June 4, 1888.
See City of Detroit v. Schilling, 93 Mich. 429. | [
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] |
McGrath, O. J.
This is certiorari to review the action of certain boards of school inspectors of the townships of Benton and Grant in attempting to alter the boundaries of a fractional school-district. The records of the meeting, returned here, do not contain any evidence that proof was-made of the posting of the notice of the meeting; and the-only notice appearing, if any was posted, was signed by the clerk of Benton township only.
.The statute requires that, in case of a proposed alteration of a fractional district, the notice shall be given by the clerk of each interested township, and that it shall be-posted in each of such townships. 3^ How. Stat. § 5040. The statutory requirement is jurisdictional, and proof of posting such notice should be filed with the clerk of the-joint board before any action is taken. Coulter v. School Inspectors, 59 Mich. 391; School-District No. 3 v. School-District No. 1, 63 Id. 51; Fractional School-District v. School Inspectors, 63 Id. 611; Fractional School-District v. Metcalf, 93 Id. 497. It appears by an amended return-that no further proceedings have been taken to carry into-effect the action here complained of.
The proceedings must be quashed and held for naught,, with costs to petitioner.
The other Justices concurred. | [
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Per Curiam.
Plaintiffs appeal as of right from an order of the Wayne Circuit Court granting defendants’ motion to dismiss on the ground that plaintiffs’ cause of action was barred by the applicable statute of limitations. MCR 2.116(C)(7). We affirm in part, reverse in part, and remand for further proceedings.
This is a products liability action arising out of an automobile accident that occurred on February 5, 1989, in Alberta, Canada. Plaintiffs are Canadian residents. The automobile involved was a 1986 Jeep, manufactured by defendants. Dr. John Vincent Hover was the driver and his wife, Sara Jane Hover, was in the passenger seat. Their children, Shamyne and Shayne Hover, were in the rear seat. As Dr. Hover veered to avoid a vehicle going the wrong way, the Jeep crossed railroad tracks and rolled over. Allegedly, the front passenger restraint system failed, Mrs. Hover fell forward, her hand became entangled in the roof assembly, which detached from the Jeep. The fourth finger of her left hand was subsequently amputated as a result of her injuries. The other passengers in the Jeep suffered less serious injuries.
Plaintiffs filed suit in the Wayne Circuit Court on February 4, 1992. As their first responsive pleading, defendants filed a motion to decline jurisdiction and to dismiss (forum non conveniens). Ultimately, the trial court ruled that the doctrine of forum non conveniens could not be applied, but granted defendants’ motion on the ground that the statute of limitations barred plaintiffs’ claim. MCR 2.116(C)(7). The trial court ruled that Michigan’s borrowing statute adopted Alberta’s two-year limitation period and its tolling provisions. The trial court concluded that the limitation period for the minor children had not tolled and their case was dismissed. The trial court also dismissed Mrs. Hover’s claim, but did not address the effect the tolling provision for disability had on her claim.
Plaintiffs moved for a rehearing of Mrs. Hover’s claim. Plaintiffs argued that there was a factual dispute regarding whether Mrs. Hover suffered from a disability that would toll the running of the limitation period. Plaintiffs presented a letter from Mrs. Hover’s psychiatrist stating that she was severely depressed and suicidal following the accident, and that she was being treated accordingly. Notwithstanding this letter, and plaintiffs’ argument that it raised a factual dispute regarding Mrs. Hover’s mental disability sufficient to toll the limitation period, the trial court stated that it was not "persuasive enough for me” and denied the motion for rehearing.
We first address plaintiffs’ argument that the trial court erred in addressing sua sponte the statute of limitations issue. We find no error on the record before us. Plaintiffs themselves raised the issue in their response to defendants’ motion to dismiss. See MCR 2.116(I)(1). Plaintiffs were afforded notice, time to prepare, and an opportunity to be heard. Plaintiffs were permitted to file multiple briefs and they moved for a rehearing regarding Mrs. Hover’s claim. Therefore, the statute of limitations issue was before the trial court and it did not err in ruling on the issue.
Next, we find that the trial court did not err in applying the Canadian statute of limitations, rather than Michigan’s statute of limitations. The difference is significant. The applicable Canadian statute of limitations is two years, while the applicable Michigan statute of limitations is three years. MCL 600.5805(9); MSA 27A.5805(9). Clearly, plaintiffs’ action would be barred under the Canadian statute of limitations.
Michigan’s borrowing statute states in relevant part:
An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply. [MCL 600.5861; MSA 27A.5861.]
A cause of action accruing in another state or jurisdiction commenced in Michigan by a nonresident of this state is barred upon expiration of either the applicable Michigan limitation period or the applicable limitation period of the other state or jurisdiction. Bechtol v Mayes, 198 Mich App 691, 694; 499 NW2d 439 (1993). In other words, if the statute of limitations of either state or jurisdiction bars the plaintiffs claim, the action should be dismissed. Makarow v Volkswagen of America, Inc, 157 Mich App 401, 406; 403 NW2d 563 (1987). Therefore, under Michigan’s borrowing statute, the applicable Canadian statute of limitations, two years, applies and the cause of action is barred.
However, plaintiffs contend that even if the Canadian limitation period is applied, the Michigan tolling provision applies and their case is not barred. The trial court ruled that the Canadian tolling provision applied as well. Under the Canadian tolling provision for minors, the tolling protection for minors is not available where the minor is in actual custody of a parent. This is not a requirement in the Michigan tolling provision. MCL 600.5851(1); MSA 27A.5851(1). Under both the Canadian and Michigan statutes, there is a tolling provision for insanity.
Plaintiffs rely on Belden v Blackman, 118 Mich 448; 76 NW 979 (1898), and DeVito v Blenc, 47 Mich App 524; 209 NW2d 728 (1973), for the proposition that Michigan’s borrowing statute borrows the statute of limitations of the place where the claim accrued, but not its toiling provisions. We find Belden and DeVito to be factually distinguishable. Belden was decided before Michigan enacted a borrowing statute. In DeVito, this Court allowed a Michigan resident to take advantage of Michigan’s tolling provisions. In the instant case, plaintiffs are Canadian residents.
Generally, the choice-of-law approach taken to tolling provisions under borrowing statutes is that the forum’s tolling provisions apply to the forum’s statute of limitations and the other state’s or jurisdiction’s tolling provisions apply to its statute of limitations. Makarow, supra, p 410. Thus, we conclude that the Canadian tolling provision applies to this case. Id., p 411; Waldron v Armstrong Rubber Co (On Remand), 64 Mich App 626, 636; 236 NW2d 722 (1975).
Because we believe that the Canadian tolling provisions apply, the trial court properly dismissed the claims of the minor children because the Canadian tolling provisions do not provide a tolling period for minors where they are in the custody of a parent. Here, it is undisputed that the minor children were in the custody of both parents. Although Mrs. Hover was apparently under a disability herself during the time, because of her severe depression, the children were also in the custody of their father. Plaintiffs’ argument that the period of limitation applicable to the minor children’s claims should be tolled because they were in the care of one incompetent parent may have arguable merit; however, plaintiffs have provided us with no Canadian authority that the minors should still receive the benefit of the tolling provision where the minors are in the custody of one competent parent and one incompetent parent. A party may not leave it to this Court to search for authority to sustain or reject its position. People v Hunter, 202 Mich App 23, 27; 507 NW2d 768 (1993). Because the minor children were in the custody of one competent parent, the Canadian tolling provision does not apply under a plain reading of the Canadian statute.
Regarding Mrs. Hover’s claim, plaintiffs submitted a letter from her psychiatrist that states that, after having her finger amputated, Mrs. Hover was severely depressed, suicidal, unable to deal with the injury and the results of the injury, and un able to instruct legal advisers or manage her daily life. This letter clearly raises a genuine issue of material fact regarding whether she was disabled under the Canadian statute. Kaszyk v Kloestra & Klug, 1 WWR 423, 425 (1975). The trial court, therefore, erred in granting summary disposition of Mrs. Hover’s claim on the basis of the statute of limitations, because there is a disputed fact. Moll v Abbott Laboratories, 444 Mich 1, 26; 506 NW2d 816 (1993).
Next, there is no dispute that Dr. Hover’s claim on his own behalf is barred under the Canadian statute. Regarding Dr. Hover’s claim for loss of consortium, plaintiffs argue that its timeliness depends on the timeliness of Mrs. Hover’s claim. However, plaintiffs fail to address the loss of consortium issue in the context of Canadian law. As we have stated, a party may not leave it to this Court to search for authority to sustain or reject its position. Hunter, supra.
Accordingly, the trial court erred in dismissing Mrs. Hover’s claim. The trial court did not err in dismissing the claims of Dr. Hover and the minor children because those claims are barred by the applicable statute of limitations.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction. | [
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Taylor, P.J.
Plaintiff appeals as of right from the summary disposition granted to Harper Grace Hospitals (Harper) pursuant to MCR 2.116(0(10); National Wholesale Drug Company (National), Handel Laboratories, Inc. (Handel), Bergen-Brunswig Drug Company, and Frank W. Kerr Chemical Company (Kerr), pursuant to MCR 2.116(C)(7); and Drake-Willock International, Ltd (Drake), Mc-Neilab, and Baxter Health Care (Baxter), pursuant to MCR.2116(C)(10). We affirm.
Plaintiff was employed by defendant Harper as a dialysis technician between the years 1978 and 1984. In the course of her employment, she was required to use a formaldehyde solution to clean the dialysis machines on a daily basis. Plaintiff contends that she sustained serious injuries as a result of her exposure to formaldehyde. Defendants Drake, McNeilab, and Baxter provided Harper with dialysis machines. Defendants Bergen, Handel, Kerr and National supplied Harper with formaldehyde.
Plaintiff argues that the trial court erred in granting summary disposition to Harper with respect to her intentional tort claim. She asserts that there were material questions of fact regarding whether Harper had actual knowledge that injuries would occur as a result of formaldehyde exposure. We disagree.
The exclusive remedy provision of the Worker’s Disability Compensation Act and the intentional tort exception provide:
The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer speciñcally intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court. This subsection shall not enlarge or reduce rights under law. [MCL 418.131(1); MSA 17.237(131X1). Emphasis added.]
This amendment became effective May 14, 1987, and it has retroactive application. Smith v Mirror Lite Co, 196 Mich App 190, 192, n 1; 492 NW2d 744 (1992); Kudzia v Carboloy Division of General Electric Co, 190 Mich App 285, 287; 475 NW2d 371 (1991).
The Court’s decision in Schefsky v Evening News Ass’n, 169 Mich App 223; 425 NW2d 768 (1988), is factually similar to the instant case and guides our determination on this issue. The plaintiff in Schefsky suffered injuries alleged to have been caused by using certain chemical solvents to clean printing presses. The plaintiff filed suit against his employer alleging an intentional tort. In their complaint, the plaintiff and his wife asserted that the defendant knew these solvents were dangerous, especially when used in confined areas, but withheld this information from the plaintiff by removing the solvents from their original containers that had pertinent warning labels attached. This Court found summary disposition appropriate because the plaintiffs did not allege that the defendant specifically intended to injure the plaintiff. The plaintiffs failed to allege that the defendant had actual knowledge that an injury was certain to occur from being exposed to the chemical solvents used in cleaning the presses, and the defendant received no warnings or complaints from employees about dangerous working conditions. Schefsky, supra at 228.
As in Schefsky, in this matter there is no evidence showing that Harper intended to injure plaintiff. Furthermore, a doctor in charge of Harper’s nephrology department stated that he did not know of any relationship between the use of formaldehyde and respiratory problems. Plaintiff’s allegations, at most, show negligence on Harper’s part. Negligence does not qualify plaintiff for the intentional tort exception to the wdca, and, thus, the wdca provides plaintiff’s exclusive remedy. Accordingly, the trial court correctly granted summary disposition for defendant Harper.
Plaintiff next argues that the trial court erred in granting summary disposition for the formaldehyde suppliers, Bergen, Handel, Kerr, and Na tional, on the basis of a statute of limitations violation. We conclude that the trial court correctly granted summary disposition pursuant to MCR 2.116(C)(7). In July 1985, plaintiff learned that her injury may have been caused by formaldehyde exposure. Her initial complaint was filed on August 28, 1987. The amended complaint naming Bergen, Handel, Kerr, and National as defendants was filed on March 2, 1989. While acknowledging that the three-year period of limitation had passed before the formaldehyde suppliers were sued, plaintiff argues that the statute of limitations should not have begun to run until plaintiff discovered, or through the exercise of reasonable diligence should have discovered, the identity of the parties.
Plaintiff’s argument manifests a misunderstanding of the discovery rule. That rule states "that the period of limitation does not begin to run until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, that he had a possible cause of action.” Thomas v Process Equipment Corp, 154 Mich App 78, 88; 397 NW2d 224 (1986). It is clear that the. discovery rule pertains to discovering a specific injury, Mascarenas v Union Carbide Corp, 196 Mich App 240, 244; 492 NW2d 512 (1992), not to discovering the identities of all the possible parties. Thomas, supra. Our courts consistently have held that the statute of limitations is not tolled pending discovery of the identity of the parties where all the elements of the cause of action exist. Thomas, supra at 88.
Like the plaintiffs in Thomas, plaintiff in this case is using this rule in a context in which it was not designed to apply, i.e., to discover the identity of the parties. Regardless of when plaintiff discovered the identity of the formaldehyde suppliers, her cause of action accrued in July 1985, and her March 2, 1989, complaint was barred by the statute of limitations. For the reasons stated by this Court in Thomas, supra, we decline to accept plaintiffs invitation to adopt the holding in Yustick v Eli Lilly & Co, 573 F Supp 1558 (ED Mich, 1983). We adopt the reasoning of the Thomas Court and conclude that the trial court correctly granted summary disposition.
With regard to defendants Drake, McNeilab, and Baxter, the manufacturers of dialysis machines, plaintiff argues that the court erred in granting summary disposition for them on the basis that they owed no duty to warn of the dangers associated with formaldehyde exposure.
This motion was characterized by the trial court as being decided pursuant to MCR 2.116(0(10), yet it was decided on the basis that there was no claim stated. MCR 2.116(C)(8). If summary disposition is granted under one subpart of the court rule when judgment is appropriate under another subpart, the defect is not fatal and does not preclude appellate review if the record otherwise permits it. Ellsworth v Highland Lakes Development Associates, 198 Mich App 55, 57-58; 498 NW2d 5 (1993). Accordingly, we will address this matter as a motion pursuant to MCR 2.116(C)(8).
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. All factual allegations in support of the claim are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the facts. Marcelletti v Bathani, 198 Mich App 655, 658; 500 NW2d 124 (1993). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).
Plaintiff argues that, because of a prior appeal in this matter, the doctrine of law of the case precludes defendants Drake, McNeilab, and Baxter from relitigating the issue of duty to warn. Unpublished opinion per curiam of the Court of Appeals, decided December 11, 1989 (Docket No. 107113). Plaintiff asserts that this Court’s prior decision in Docket No. 107113 held that these manufacturers had a duty to warn of the dangers of formaldehyde use if such use was foreseeable. However, plaintiff misunderstands the earlier decision of this Court. In Docket No. 107113, this Court reversed the trial court’s grant of summary disposition and remanded because there were factual questions with regard to whether use of formaldehyde as a cleaning agent was foreseeable. When this Court reverses a case and remands it for a trial because a material issue of fact exists, the law of the case doctrine does not apply because the first appeal was not decided on the merits. Borkus v Michigan Nat’l Bank, 117 Mich App 662, 666; 324 NW2d 123 (1982). In this case, the first appeal was remanded to the trial court because a material issue of fact existed. Therefore, the law of the case doctrine did not preclude the trial court from revisiting this issue.
Alternatively, plaintiff argues that summary disposition for the dialysis machine manufacturers was improper.
Plaintiff relies on Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), for the proposition that a supplier of a product has a duty to warn purchasers of another product’s dangers. The Court in Comstock stated:
[T]he ultimate manufacturer is liable for negli gence in manufacture or inspection of parts of an automobile directly related to its safe operation even if the defective part was supplied by others and the injured party was not in privity of contract. [Id. at 174.]
Plaintiff claims that the dialysis machine manufacturers had a duty to warn of the dangers associated with formaldehyde use because defendants Drake and McNeilab recommended formaldehyde to clean their machines and defendant Baxter anticipated its use.
We conclude that Comstock is distinguishable from the instant case and that plaintiff’s reliance on that case is misplaced. In this case, defendants Drake, McNeilab, and Baxter did not supply the formaldehyde that allegedly caused plaintiffs injury. Furthermore, formaldehyde was not related directly to the safe operation of defendants’ dialysis machines. Plaintiff did not allege that the machines themselves were dangerous or defective; rather, plaintiff alleged that her use of formaldehyde caused her injuries.
In granting the summary disposition, the trial court determined that defendant dialysis machine manufacturers owed no duty to warn because they merely supplied the dialysis machines cleaned by plaintiff. The court held that defendant manufacturers did not have a duty to provide warnings for dangerous conditions present in other products. We agree. The law does not impose upon manufacturers a duty to warn of the hazards of using products manufactured by someone else. Spaulding v Lesco Int'l Corp, 182 Mich App 285, 290; 451 NW2d 603 (1990), aff'd 441 Mich 379; 491 NW2d 208 (1992). Because plaintiff did not allege that the dialysis machines themselves were dangerous or defective, she cannot assert that defendant manu facturers had a duty to warn of the dangers of formaldehyde. The question whether a duty exists is for the trial court. If the trial court determines that a defendant did not owe the plaintiff a duty, summary disposition is appropriate. Westry v Bell Helmets, Inc, 194 Mich App 366, 369-370; 487 NW2d 781 (1992).
Furthermore, we hold that defendant manufacturers did not owe any duty to warn on the basis that they had sold this equipment to a sophisticated purchaser and learned intermediary. Defendant manufacturers raised these issues below, but the trial court chose not to address them because it found that the manufacturers were entitled to summary disposition simply on the basis that they had no duty to warn about others’ products. Although the trial court did not base its determination on these grounds, "this Court may properly review an issue if the question is one of law and the facts necessary for its resolution have been presented.” Spruytte v Owens, 190 Mich App 127, 132; 475 NW2d 382 (1991).
This state first recognized the sophisticated user doctrine in Antcliff v State Employees Credit Union, 414 Mich 624, 640; 327 NW2d 814 (1982), in which the court stated:
There are countless skilled operations such as the rigging of scaffolding, which involve otherwise nondangerous products in potentially dangerous situations. A manufacturer of such a product should be able to presume mastery of the basic operation. The more so when, as here, the manufacturer affirmatively and successfully limits the market of its product to professionals. In such a case, the manufacturer should not be burdened with the often difficult task of providing instructions on how to properly perform the basic operation. [Emphasis added.]
The holding in Antcliff was limited to the facts of that case and that defendant; however, the sophisticated user defense has been further recognized in Michigan. For instance, in Ross v Jaybird Automation, Inc, 172 Mich App 603, 607; 432 NW2d 374 (1988), this Court stated:
A seller or manufacturer should be able to presume mastery of basic operations by experts or skilled professionals in an industry, and should not owe a duty to warn or instruct such persons on how to perform basic operations in their industry.
In Aetna Casualty & Surety Co v Ralph Wilson Plastics Co, 202 Mich App 540, 547-548; 509 NW2d 520 (1993), this Court stated:
Those with a legal obligation to be informed concerning the hazards of materials used in manufacturing processes must be relied upon, as sophisticated users, to fulfill their legal obligations, thereby absolving manufacturers in some circumstances of the duty to warn the users of chemical products, where such use is in the course of employment for a sophisticated bulk user. Any other rule would mean that " '[m]odern life would be intolerable unless one were permitted to rely to a certain extent on others doing what they normally do, particularly if it is their duty to do so.’ ” [Citations omitted.]
Further, in Jodway v Kennametal, Inc, 207 Mich App 622; 525 NW2d 883 (1994), this Court again applied the sophisticated user doctrine, concluding that a supplier could rely upon a bulk user to be sophisticated and also could rely upon an employer to comply with federal and state law concerning safety.
In the instant case, the dialysis machines were sold to sophisticated buyers. Indeed, dialysis ma chines are prescription devices, available for purchase by physicians only. 21 CFR 801.109(b)(1). Accordingly, the rationale behind the sophisticated user doctrine and the cases cited herein applies in this case. Defendant manufacturers could assume that the physicians purchasing their dialysis machines would have a mastery of the basic operation of the equipment and would adequately instruct their employees.
Similarly, application of the learned intermediary rule lends further support for the trial court’s decision. In Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88; 273 NW2d 476 (1979), the Court stated:
A manufacturer of a prescription drug has a legal duty to warn the medical profession, not the patient, of any risks inherent in the use of the drug which the manufacturer knows or should know to exist.
This Court recognized the rule in Mowery v Crittenton Hosp, 155 Mich App 711, 720; 400 NW2d 633 (1986), and held that the defendants, a hospital, a physician, a medical laboratory, and a drug company, were not liable to the plaintiffs, a patient and her spouse, because the drug in question could only be purchased with a prescription issued by a doctor. This Court stated:
To expect the average citizen to know if he or she should take the drug or when to stop taking it, or to understand the technical language so often necessary to explain the dangers of the drug, is unreasonable. This is the basis for the "learned intermediary” rule adopted by a majority of jurisdictions in cases involving therapeutic, diagnostic or curative drugs.
Accordingly, in the absence of a clear legal duty imposed on defendant manufacturers to directly warn plaintiffs, plaintiffs have failed to state a claim upon which they may recover. [Id. at 720-721.]
We now hold that the reasoning and policy behind the learned intermediary rule applies not only to prescription drugs, but also to prescription devices such as dialysis machines. Under the learned intermediary rule, the hospital or physician was the proper recipient of necessary information or warnings, not plaintiff. As in Mowery, defendant manufacturers had no duty to warn plaintiff in this case because of the learned intermediary rule.
Finally, we note that plaintiff wrongly asserts that the trial court only granted partial summary disposition to these defendants. Plaintiff admitted in response to defendants’ interrogatories that her only theory against defendant manufacturers was their alleged failure to warn of the dangers posed by the inhalation of formaldehyde. The trial court fully addressed this issue and granted summary disposition that encompassed all plaintiff’s claims against these defendants.
In summary, the manufacturers of the dialysis machines, Drake, McNeilab, and Baxter, have no duty to warn plaintiff of the dangers of formaldehyde because (1) their dialysis machines were not dangerous or defective, (2) the purchaser of the product was a sophisticated user that could be relied upon to give such warnings, and (3) this product is securable only by prescription from a physician, and thus, the learned intermediary rule pertains.
We affirm. | [
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Per Curiam.
Defendant Michael Sova appeals as of right an order of the circuit court denying his motion to set aside a default judgment for plaintiffs under MCR 2.612(C)(1)(f). We reverse.
The default judgment was entered after defendant failed to present any evidence at trial to rebut testimony by plaintiffs that defendant had violated a restrictive covenant on his property. At the beginning of trial, defendant’s attorney, Stephen Morgan, asked to withdraw as counsel because he had not talked with defendants in the last three years. Morgan also stated that he had sent defendant notice of the trial date but had received no response. The circuit court granted the motion, noting defendant’s lack of cooperation with Morgan’s attempt to prepare for trial. The court then allowed the trial to proceed in the absence of defendant and defense counsel. A default judgment for plaintiffs was subsequently entered. Defendant promptly filed a motion for relief from the default judgment under MCR 2.612(C)(1) (f), which the circuit court denied.
Defendant argues that the circuit court erred in granting defense counsel’s oral motion to withdraw and subsequently entering a default judgment for plaintiffs. In support of his position, defendant relies on Bye v Ferguson, 138 Mich App 196; 360 NW2d 175 (1984). Although plaintiffs have not filed a brief on appeal, they argued below that the proper course of action was a malpractice suit or grievance procedure against Morgan.
While we agree with the general proposition invoked by plaintiffs, see White v Sadler, 350 Mich 511, 525; 87 NW2d 192 (1957) (holding that a lawyer’s negligence is attributable to the client and does not normally constitute grounds for setting aside a default judgment); American Way Service Corp v Comm’r of Ins, 113 Mich App 423, 435; 317 NW2d 870 (1982), this case involves special circumstances specifically addressed by this Court in Bye, supra, which plaintiffs have failed to distinguish. In Bye, the defendant’s attorney requested to withdraw because the defendant had failed to pay his legal bills. 138 Mich App 200. The attorney noted that he had notified the defendant of the trial and had unsuccessfully attempted to communicate with the defendant several times before trial. Id. at 199-200. On the evening before the trial, a business associate of the defendant notified counsel that the defendant would not be able to attend the trial. Id. at 200. The trial court permitted the attorney to withdraw, attributing the attorney’s problems entirely to the neglect of the defendant. Id. at 201. The court then allowed the plaintiff to present his proofs. Judgment was subsequently entered against the defendant. This Court reversed, stating at 206-207:
Regardless of whether [the attorney’s] withdrawal was justified, e.g., for nonpayment of legal fees, his client was entitled to notice of that withdrawal. . . . [T]he fact that [the defendant] had notice of the trial does not deny the fact that he had no notice of [the attorney’s] withdrawal. Even if [the defendant’s] absence made it difficult for [the attorney] to defend the case, the Disciplinary Rules do not permit withdrawal without notice.[ ]
There is no requirement that a defendant in a civil case appear at trial. The fact that [the defen dant] chose not to appear, thereby risking a judgment, does not change the attorney-client relationship. The Michigan Constitution allows the party to proceed through his attorney.[ ]
Similarly, in White, supra, the Supreme Court recognized a distinction between negligent legal representation and abandonment of representation altogether. 350 Mich 523. Specifically, the Court quoted the following excerpt from 114 ALR 279, 280.
"An attorney’s negligence or mistake is distinguishable, as regards the right to reopen a default judgment, from his abandonment of the case, which may be in effect a fraud on his client. So that from the mere fact that the attorney’s negligence may be imputable to his client and prevent . the latter from relying on that ground for vacating or opening a default judgment, it does not necessarily follow that the same rule will apply in the event of the attorney’s abandonment of the case.” [350 Mich 523.]
Here, while the parties seem to dispute whether defendant had actual notice of the trial date, it is apparently undisputed that defendant did not receive notice of Morgan’s intention to withdraw. This is the key factor in Bye and, by analogy, in this case. Despite defendant’s apparent lack of interest in participating in his own defense, he was entitled to assume that he would be represented at trial. The case authority cited by plaintiffs and the circuit court, e.g., White, supra, is inapposite because Morgan’s action here constituted complete abandonment of representation. In addition, once the circuit court approved Morgan’s request to withdraw, Morgan’s failure to notify defendant of his withdrawal was no longer a point of contention strictly between Morgan and defendant. Rather, the circuit court effectively gave its approval and allowed the trial to proceed in the absence of defense counsel. In doing so, the court abused its discretion. Under these circumstances, the subsequent default judgment for plaintiffs was unwarranted. Defendant’s motion to set aside the default judgment was improperly denied under MCR 2.612(C)(1)(f).
Moreover, we cannot deem defense counsel’s withdrawal harmless. In a prior order denying plaintiffs’ motion for summary disposition, the court noted that plaintiffs may have lacked equitable grounds for specific enforcement of the restrictive covenant because some of them may have breached the terms of the covenant themselves. Had such information been elicited by defense counsel at trial, or had defense counsel presented some other defense, no default would have been entered and a fact issue would have been presented.
Reversed.
Throughout this opinion, "defendant” will be used to refer to defendant-appellant Michael Sova.
The Bye Court was referring to DR 2-110(A)(2). The substance of that disciplinary rule, including the notice provision, has been incorporated into MRPC 1.16(d).
The Bye Court was referring to Const 1963, art 1, § 13.
Plaintiffs failed to dispute defendant’s alleged lack of notice below and, by not filing a brief with this Court, on appeal. Under these circumstances, there is no reason to consider defendant’s alternative request for an evidentiary hearing regarding his motion to set aside the default judgment. Defendant filed a motion for such a hearing below, which the circuit court denied.
The Bye Court reviewed the defendant’s motion to set aside the default judgment under GCR 1963, 528.3. The substance of that court rule is virtually the same as MCR 2.612(C). | [
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Grant, J.
(after stating the facts). Complainant was in the possession of the land at the time she made the contract with defendant. He went into possession under her. He remained in possession under her until he had secretly acquired the original title. The bill of sale by complainant to him contained a covenant of warranty and an agreement to defend the sale made thereby. He had an irrevocable license for the term specified in the contract. She could not eject him in a suit at law, or restrain him from cutting and removing the timber by a suit in equity. He had purchased standing timber and possession of the land. They stood in the position of vendor and vendee of land. He had recognized her title and was not in a position to disavow it or to obtain for his own benefit a title hostile to it. By his conduct he held the land in trust for her, and equity will compel him. to transfer it to her. Galloway v. Finley, Kirkpatrick v. Miller, 50 Miss. 521; Stephens v. Black, 77 Pa. 138; Peay v. Capps, 27 Ark. 160; Cromwell v. Craft, 47 Miss. 44; Mitchell v. Chisholm, 57 Minn. 148. See, also, Thredgill v. Pintard, 12 How. (U. S.) 24.
“ The vendor and vendee [of land] stand in the relation of landlord and tenant; the vendee cannot disavow the vendor’s title.” Galloway v. Finley, 12 Pet. (U. S.) 295.
“After doing homage to his vendor’s title by purchase and entry under it, the vendee will not be tolerated to repudiate his allegiance to it, and transfer it to another title acquired whilst thus in possession. If such after-acquired title should be paramount, the vendee shall be esteemed as holding it in trust for his vendor, as having provided it to support and maintain his possession, and his right under his original vendor.
• “Whilst a court of equity holds the vendee to entire good faith to his vendor, and will not allow him to get in. an outstanding title or incumbrance and set it up in opposition to his vendor, yet it will lend its aid to reimburse all reasonable advances expended to fortify the title. At the same time it will rebuke every attempt by the purchaser to betray or invalidate the title.” Kirkpatrick v. Miller, 50 Miss. 527.
“A vendee under articles may set up an outstanding title not in himself, but when he buys such title, he is trustee of his vendor, and is entitled only to what he paid to perfect the title.” Stephens v. Black, 77 Pa. 138.
“A vendee in possession under a contract of sale cannot retain possession and avoid payment of the balance of the purchase money on the ground that the vendor cannot make as good a title as agreed. Before he can avail himself of such defense he must offer to rescind the contract. Peay v. Capps, 27 Ark. 160.
“ A vendee, continuing to hold the possession of land to which his vendor admitted him, cannot acquire an adverse title and set it up against his vendor.” Cromwell v. Craft, 47 Miss. 44.
“While a vendee remains in possession he is estopped from denying the plaintiff’s title, whether it is good or bad.” Mitchell v. Chisholm, 57 Minn. 148.
Decree is affirmed, with costs.
Blair, Montgomery, Ostrander, and Hooker,. JJ., concurred. | [
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] |
Ostrander, J.
Respondent, on December 3, 1904, at the city of Detroit, about 6 o’clock in the afternoon, purchased a revolver and some cartridges, went to the place where his wife, from whom he was separated, was employed, reaching that place at about 7 o’clock, and offered to escort her home. His company being refused, he shot at her across the counter. The bullet did not strike her. ¡She ran into an adjoining room, whereupon respondent . shot her sister in tho arm, pursued his wife into the ad joining apartment, and shot a Mrs. Schneider, who he supposed was his wife, in the chin, again in the wrist, and again in the arm. He then left the house. He was arrested some time later at a saloon, distant more than a mile from the place of the shooting. When the arrest was attempted, he shot an officer and a man who assisted in making the arrest, and shot at, but missed, another officer. He was charged with assault with intent to kill and murder his wife, and was convicted. A motion for a new trial was made and overruled.
It is the theory of respondent’s counsel that his client was, upon the occasion set out, temporarily insane as the result of using intoxicating liquors. Defendant was a witness, and testified in substance that he was in such a state of intoxication on the night in question that he did not remember any of the occurrences given in evidence by the prosecution. It is contended for respondent that it was error to permit the introduction of testimony to show the conduct and acts of respondent at the time the arrest was made. The court instructed the jury that in determining the fact of guilt or innocence they had the right “ to take into consideration the conduct of this defendant from the time that he possessed himself of this deadly weapon up to the time that he was disarmed.” In his opening statement, the prosecuting attorney said that he proposed to show the events (and he stated what they were) before and after the particular act of shooting, “to show the murderous disposition of this man at that time, and that he had murder in his heart.” It appears, and the testimony is not disputed, that respondent went from the bakery, where the first shooting was done, directly to Noten’s saloon.' Noten testified that respondent entered his place about 8 o’clock, “ something like that,” was there about 15 minutes, during which time he had, and paid for, a drink, when the officers arrived. He pointed out respondent to the officers, and when they attempted to arrest respondent he resisted in the manner already stated.
It has generally been supposed that the fact that one accused of crime resisted arrest may be shown by the prosecution (Hall v. People, 39 Mich. 717), and be considered by the jury with all other facts and circumstances attending the commission of the alleged crime. Like flight and concealment, such conduct has been admitted as evidence of consciousness of guilt. The fact of resistance was not the less proper evidence because it took one form rather than another.
It is urged, however, that the intent with which the assault was made upon the wife is the gist of the offense charged, and that the testimony of the subsequent shooting had a tendency to prove, and the trial judge permitted it to be used to prove, the offense charged, including, of course, the intent with which the assault upon the wife was committed; that it amounted to proving the offense charged by evidence of other distinct and subsequent offenses. Intent is a mental attitude made known by acts.
“ The willful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, is almost universally recognized as showing a felonious intent.” Wellar v. People, 30 Mich. 16, 20.
The presumption is not conclusive, and the intent charged must be proven beyond a reasonable doubt. Given the conduct of respondent for a half hour before and an hour after he shot at his wife, we have some reasonable basis for determining his intentan assaulting her. Beginning with the purchase of the revolver, the events to the time when respondent was disarmed are intimately connected and associated, and evidence of the series and the sequence of these events was proper to be considered by the jury in determining the state of mind of the accused. It is not the case of proving the crime charged by evidence that another crime was subseqently committed, but of proving the purpose and intent of respondent by his conduct before, at the time of, and immediately after the alleged offense. We should, perhaps, admit the contention of counsel that during the period from the first to _the last shooting the state of mind of respondent might have changed, that his mental attitude with respect to his wife might be different from that assumed towards the officers who accomplished his arrest, that he might have drunk more liquor, and that he was confronted with a different set of circumstances at the different times. It does not follow that the facts should not, all of them, have been submitted to the jury.
What has been said disposes of a number of the assignments of error. The others which are relied upon have been examined, and require no discussion. They are overruled.
The judgment is affirmed.
McAlvay, Blair, Montgomery, and Hooker, JJ., concurred. | [
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Blair, J.
Plaintiff sued defendant for the freight upon certain cars of coal shipped to defendant over plaintiff’s railroad by the Superior Coal Company, of Wellston, Ohio, under a contract containing the following clauses:
“Contract with Dealers.
“Made at Detroit, this 1st day of July, 1901, between the Superior Coal Co., Wellston, O., the first party, and A. Y. Malcomson, of Detroit, Mich., the second party.
“ Said first party agrees to furnish all the coal that may be required by said second party, for the use of The Edison Illuminating Co., of Detroit (with whom the said second party has annual contract), for steam or manufacturing purposes, until the 30th day of June, 1902, at the following prices f. o. b. Mich. Cent. R. R., viz.
“From July 1st, 1901, until June 30th, 1902. * * *
“ Mine run, per ton, |2.05 net. * * *
“The said second party agrees to purchase from said first party all the mine run coal they may require for the purpose aforesaid, until said 30th day of June, 1902, and to pay for same on or before the 25th day of each month for all coal shipped during the previous month. Mine weights to govern settlements.”
Defendant having given notice of set-off, based, among other things, upon the confiscation by plaintiff of numerous cars of coal shipped under said contract, before they arrived at the Michigan Central Railroad tracks, waived the benefit of his plea of the general issue, admitted the plaintiff’s claim, and assumed the affirmative of the issue upon his notice of set-off. The court held that defendant’s contract provided for a delivery of the coal on the Michigan Central tracks at Detroit, and that the coal having been confiscated before it was so delivered, he had no title thereto, and could not recover for its loss. In accordance with this view of the contract, a verdict was directed for plaintiff.
Defendant contends that the court erred in his construction of the contract; that while the letters, f. o. b., usually import delivery at the point designated, it is apparent that, in the contract in question, delivery of the coal to the plaintiff railroad company was intended by the parties to be a delivery to the defendant, and it is said:
“ There are two features in this contract strongly indicating this intention: First. ‘Mine weights to govern settlement.’ This language means that defendant had to pay the Superior Coal Company for this coal on the basis of the weights of the coal at the mines where it was delivered on cars for transportation to defendant. * * * Second. The contract provides :
“ ‘Said second party agrees to purchase from said first party all mine run coal * * * and to pay for same on or before the 35th day of each month for all coal shipped during the previous month.’
“The words, ‘for all coal shipped during previous month’ are also significant, we contend, in that they plainly show when the parties to the contract themselves regarded the responsibility of the Superior Coal Company for the coal shipped under it at an end, and that shipment and delivery by the Superior Coal Company to defendant were concurrent and not separate acts.”
It is also contended that the letters, f. o. b., are used—
“To qualify, fix, and determine a certain essential feature of the contract, viz.: the price. The language, ‘ prices f. o. b.’ was not used unadvisedly by the parties to the contract. These words are not synonymous with ‘ delivery f. o. b. ’ nor with ‘ f. o. b.’ standing by itself. In interpreting the language, therefore, it should be given that interpretation which the parties themselves sought to put upon it, viz.: The basis of price of the coal, and not the interpretation which plaintiff’s counsel and the court below sought to arbitrarily place upon it, viz.: The place of delivery of the coal. Particularly is this so when an entire reading of other portions of the contract, as we have seen, clearly show that a contrary intention as, to place of delivery between the parties existed. The language related and was intended by the parties to it to relate entirely to prices, and not to indicate the place where title to the coal passed. It is equivalent to the following: ‘At the following prices less freight to Michigan Central R. R.’” — citing A. J. Neimeyer Lumber Co. v. Railroad Co., 54 Neb. 327 (40 L. R. A. 537).
The contract is clear and unambiguous and was properly construed by the court. The words, “ free on board,” in such contracts have acquired a settled judicial meaning. Vogt v. Schienebeck, 122 Wis. 491 (67 L. R. A. 756).
There is nothing in the clauses referred to by defendant’s counsel or elsewhere in the contract which militates against the usual meaning of the words; nor was there ■any evidence outside of the contract to warrant a different construction. The opinion of Commissioner Ragan in the Nebraska case, cited supra, supports defendant’s contention that the letters, f. o. b., relate to the price merely, but none of the other members of the court concurred with him upon this point, and Norval, J., dissented in an able •opinion supported by the citation of numerous authorities. Harrison, C. J., Sullivan, J., and Irvine and Ryan, CO., concurred—
“In the conclusion reached by Commissioner Ra.gan, on the ground that, conceding, for the purposes of this case,' that the use of the expression ‘ Prices f. o. b. Omaha’ might of itself afford a presumption that the delivery was to be made at Omaha, and that title should there pass, the other evidential facts were sufficient to ground an inference that title should pass at the place of shipment, and the question being one of fact, the finding is sustained by the evidence.”
As above stated, there are no such evidential facts in this case requiring a submission of the question to the jury. Althouse v. McMillan, 132 Mich. 145, is not in conflict with this conclusion. In that case “the correspondence contemplated, and there actually was in this case, in accordance therewith, a bill of lading procured, which, with the invoice attached, was immediately transmitted to the purchaser. This transfer of the bill of lading passed the title to the property in controversy,” citing cases.
In the case at bar there was no bill of lading transmitted to defendant. It is claimed that the postal cards sent to defendant, of which the following is an example, were equivalent to a bill of lading, viz.:
“ Mine weights govern settlements. All bills due tenth of each month.
“Jackson, Ohio, 10/28, 1901.
“A. Y. M.
“In our office we ship this day on your account:
Initial. Car No. Ton. Grade. Route, 186.
O. S. 4324 34.50 Lp. Dt. 5
6534 6 32.50
6753 7 31.00
5160 8 31.50
5083 9 32.00
“Mine No. 3.
“ Remarks: Weights to follow.
“ Yours truly,
“Superior Coal Company.”
Stamped: “Received Oct. 30, 1901. Ansd.-.”
These postal cards were in nowise inconsistent with the-construction we have placed upon the contract, and, being construed in harmony with it, were mere notices to the defendant that the coal company, in accordance with the contract, had shipped the ..coal for delivery to him free on board the cars at Detroit.
The judgment is affirmed.
Carpenter, C. J., and McAlvay, Grant, and Montgomery, JJ., concurred. | [
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Montgomery, J.
This is an appeal from a decree of the circuit court for the county of Shiawassee, in chancery, granting a decree of divorce to complainant on the ground of extreme cruelty. Each of the parties had been married before, and each was divorced. , The complainant had two children by a former marriage. The defendant had none living at home. At the time of the marriage between these parties complainant was 29 and defendant 4? years of age. The complainant’s two children were aged, respectively, ? and 12 years. Defendant owned a farm of 80 acres in Locke township, Ingham county, subject to a mortgage of $600. The understanding appears to have been that the complainant’s children should be provided a home with defendant. One child was born to the parties, Bessie, now about 8 years of age. The complaints made by complainant are that the children were not well provided with clothing and food, that they were ill treated by defendant, that defendant was penurious and selfish, and that he was unreasonable in his demands for sexual indulgence.
It is unquestionably true that the defendant was frugal to a degree, and that the clothing furnished the children and complainant was not of the finest quality; but it appears to have been substantially of the same quality that the neighbors had. It appears that in the nine years the parties lived together the defendant lived economically, dressed modestly, had no expensive habits, and that all the balance of his income from the farm was expended upon the family excepting an amount sufficient to pay off the mortgage and a further sum of $240 in cash, which complainant took away when she left him surreptitiously in June, 1903. We cannot, in view of these facts, say that defendant was so penurious in his family as to make life with him unbearable. As to the disagreements with the children, they were quite as common between complainant and her children as between the children and defendant. The testimony relating to the charge of excessive sexual indulgence has been considered. There may have been some foundation for this charge at one time, but the complainant by returning to live with defendant after a previous separation condoned any cruelty of this nature. We are not satisfied that any just ground for complaint exists on this score arising since her return. This case is a most unfortunate one. We are convinced that- the parties can and should live together in comfort and peace; that the best good of their young child demands it.
The decree is reversed, and the bill dismissed.
McAlvay, Grant, Blair, and Ostrander, JJ., concurred. | [
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] |
Blair, J.
Thomas L. State died at St. Mary’s Hospital, in Detroit, on November 17,1900. On November 14, 1900, State signed an order upon defendant Keena, as trustee, to convey the real estate which is the subject of controversy in this suit to defendant John P. Prentis. In pursuance of this order, on the same day, defendant Keena executed a deed to defendant Prentis of the property.
Thofnas L. State had been a resident of Detroit for many years. His wife’s name was Mary Josephine State. State’s wife died several years before his death. They had no children and State was her sole next of kin. At the time of her death, she was the owner, in fee, of the house and lot in question in this suit. At the time of her death, there was outstanding upon this property a mortgage for $700, given by Mrs. State to the Detroit Savings Bank, bearing date October 1, 1890. Thomas F. Sullivan was at this time discount clerk of the People’s Savings Bank, of which George E. Lawson was cashier, and defendant James T. Keena, attorney.
Previous to April 19, 1893, the Detroit Savings Bank had placed this mortgage, for collection, in the hands of its attorneys, and on that day the total amount due for principal and interest (being $810) was paid to the Detroit Savings Bank by a check of the People’s Savings, signed “ State per Sullivan.” The books of the Detroit Savings Bank show that upon receiving this amount the bank executed an assignment of the mortgage on April 19, 1893, and the note, to which it was collateral, to Thomas State. This assignment was never recorded, and apparently was never acted upon, because there appears of record an assignment from the Detroit Savings Bank to Thomas F, Sullivan, dated December 28,1894, and the explanation of Mr. Boss, the assistant cashier of the Detroit Savings Bank, is that after the execution of the assignment to State, that assignment was returned to the Detroit Savings Bank, who, at the request of State and Sullivan, executed the assignment to Thomas F. Sullivan. Thereupon, foreclosure by advertisement of this mortgage was had, Mr. Browse T. Prentis acting as Sullivan’s attorney in the matter, and upon this foreclosure a sheriff’s deed was sub sequently, and on April 2, 1895, executed to Sullivan. Before the time of redemption had expired, and under date of October 25, 1895, Sullivan executed a trust deed of this property to defendant James T. Keena. This deed placed the legal title to the property in James T. Keena as trustee, with power to sell the property and pay two notes executed by State on the date of the trust deed, one payable to defendant John F. Prentis for $500, with interest, and the second payable to Thomas F. Sullivan for $600, with interest. Upon payment of these sums, the trust provided that the property was then to be conveyed to State. Mr. Keena testified:
“ That deed was made to me by Mr. Sullivan under an understanding that I was to hold the title for Mr. State and as security for an indebtedness due from Mr. State to Mr. Sullivan.”'
On November 14, 1900, Mr. Prentis brought to Mr. Keena the order, which contained the signatures of Thomas L. State, Thomas F. Sullivan, and John F. Prentis, and requested Keena to convey the property to defendant Prentis. Thereupon, Mr. Keena executed the deed to defendant Prentis, now in question. State died November 17,1900, and was on his deathbed when this order was signed by him. Browse T. Prentis testified:
“ Q. You don’t know whether the note is still outstanding as a claim of John Prentis, or whether it is a canceled note ? You don’t know that ?
‘ ‘A. As a matter of law, I should think that note was paid.
“ Q. If that note was paid, why didn’t you hand that note to Tom State when this transaction took place ?
“A. Mr. State was dying.”
Upon the death of Thomas State, complainant was duly appointed executor by the probate court for the county of Wayne on February 11, 1901, and he duly qualified in said trust. Commissioners on claims were appointed by the probate court on July 22, 1901, and the report of the commissioners was filed on January 24,1902, wherein was allowed a total of $736.50, aside from the commissioners’ fees, aggregating $50. The claims thus allowed were partly for funeral expenses, etc., paid out by Miss Catherine State, sister of deceased, and there was a claim of $600 allowed to Joseph E. State, a brother.
The executor did not obtain property with which to pay the expenses of administration, or the debts thus allowed, and in March, 1902, he filed the bill in this case. It is based upon the provisions of 3 Comp. Laws, § 9363 et seq., which authorize an executor or administrator to reach assets which have been disposed of by a decedent in fraud of creditors. John E. Prentis is a brother of Browse T. Prentis and of George H. Prentis, attorney in Detroit, and Mary Prentis is the wife of Browse T. Prentis. Browse T. Prentis, in his negotiations with State, represented himself, his wife, and his brother John.
Complainant concedes that defendant Keena acted in perfect good faith throughout this transaction, and it appears that Mr. Keena had no knowledge of the principal facts in question. Complainant does not contend that there was actual fraud upon the part of the other defendant, but claims that the deed sought to be set aside was purely voluntary and without consideration, and, therefore, void as to creditors. Defendant Prentis insists that the deed to him was supported by an adequate consideration, and is valid against creditors. This contention presents the ■principal question of fact in the case. The learned trial judge who heard the case found for the complainant upon this question, and we think his conclusion was correct. Mr. Sullivan and Mr. State both being dead, there were no witnesses who had knowledge of the facts in dispute ■except the Prentis family, John E., defendant herein and grantee in the deed attacked, Browse T. Prentis, his brother, and also a claimant against State’s estate, and Mary, his wife.' Browse T. Prentis had been the attorney •and confidential adviser of State during the period of these ■transactions, and drew the trust deed to Keena. He testified that:
“ The main purpose of that deed was to secure his indebtedness to my brother and my wife, which had been, contracted through me.”
Complainant showed By indisputable evidence that on April 24, 1899, State received $1,500 in settlement of certain suits against insurance companies; that on the same day State purchased with this money two certificates of deposit, one for $700 payable to Sullivan and credited to-his account; the other for $688, payable to the order of B. T. Prentis. This last certificate is indorsed by B. T. Prentis and the Union National Bank of Detroit. Mr. B. T. Prentis, who was the only witness sworn for defendant, admitted that he received the money from the Union National Bank. He testified with reference to the $500 loan:
“ Mr. State had no negotiations with my brother in regard to that loan. I got the money from my brother and handed it over to State and took the note.
“ Q. The note has never been paid ?
“A. Not a cent of it.”
It is clear that the certificate of deposit payable to Sullivan was in discharge of the indebtedness to him secured'by the trust deed and I have no doubt that the certificate for $688 payable to the order of B. T. Prentis was in full settlement of the note of $500 to defendant John F. Prentis. Mr. B. T. Prentis was unable to give any satisfactory explanation of the making out of the certificate to him. He testified that of this insurance money:
“Tom State didn’t get it. He got what I paid him from that draft, and that is all that he ever handled the money, I guess.
“Q. Of course, the discontinuance of those insurance cases was done through you ?
“A. Yes; undoubtedly, it was done through me. That is my signature to that stipulation and discontinuance. I have no recollection of the thing.
“Q. Do I understand you to say that Tom State got that $688 at all ?
“A. I do say that he got every dollar on that except what I retained by an agreement with him for my services in these cases.
“Q, You can’t say the amount ?
“A. I don’t remember. * * *
"Q. Exhibits 1 and 2, being two certificates of deposit, seem to aggregate $1,388. Can you tell us where the balance of the amount received from the insurance companies went ?
"A. No, I cannot.
“Q. $122. Did you get it?
“A. I can’t tell you anything about it. * * * I don’t remember anything about it. Excepting by seeing these two drafts I wouldn’t remember anything about that transaction.
“Q. Do you tell us that of that $688 apart of it went to you and a part of it to State ?
“A. That is my recollection.
"Q. You can’t tell us how much went to you ?
“A. No, sir, I cannot. I know I got my pay at that time for the suits, which was about half of what I ought to have had.
“ Q. What was that amount that was your charge against State for attending to the insurance matter ? ■
“A. I don’t remember.
“ Q. You didn’t charge him $688 for it ?
“A. No, sir. |
“ Q. It was more likely $100 ?
“A. More like $100. I think it was more than $100, hut it was nearer $100 than $688. * * *
“ Q. Can you give any reason so far, why. the certificate of deposit you have made out so carefully, B. T. Prentis on the face of it for a large amount like that, with a balance of $122 in there, if you were not to keep that fund, just as Tom Sullivan got his $700 ?
“A. I know I didn’t get that money, Mr. Lightner.
“ Question by the Gourt: You must have got it.
“A. I got it, of course, I didn’t get it to keep. I turned it over to State.
“ Q. You can’t give any explanation why that was made out in that way ?
“A. I suppose that was the balance; I don’t know. I couldn’t give you any explanation. I have forgotten the transaction entirely.”
This transaction, on its face, indicates clearly a satisfaction of the trust deed, and in view of the confidential relations existing between B. T. Prentis and State, his utter failure to explain the transaction, and the fact that State and Sullivan were dead, I think the transaction should be held to be a payment of the note and interest and probably Prentis’ fees in the insurance cases. This conclusion is further strengthened by the fact that on June 10, 1899, State collected $1,500 of the city of Detroit of which he paid $500 to Browse T. Prentis; $500 to George H. Prentis, his attorney in such suit, and retained $500 himself. It would extend this opinion too much to discuss the other clainis of defendant in support of said absolute deed to himself. The best supported of them all is that upon this $500 note, and, having determined that this was paid, I do not think it necessary to set forth in detail the reasons for holding that the deed in question was without consideration and void as to creditors. .1 am also of the opinion that the testimony of Browse T. Prentis was incompetent, the facts being equally within the knowledge of Thomas State, deceased, and without his testimony the weight of the evidence is clearly with complainant. ,
But, whether the deed was without consideration or not, defendant insists that the bill must be dismissed because :
(1) There has been no order that complainant should pay the claims as required by 3 Comp. Laws, § 9404.
(2) There is neither an allegation in the bill nor proof that the creditors applied to the executor to file this bill or made provision for the costs as required by section 9364, 3 Comp. Laws.
(3) The statute authorizing this proceeding relates to property conveyed only and the bill and proofs show that State did not nor could convey, but that he caused the land to be conveyed.
(4) Neither the bill nor the proofs show that the claims existed at the time the alleged fraudulent deed was made, nor that it was made to defraud the then existing creditors of State, nor that the claim existed when the title was in State as required by 3 Comp. Laws, §§ 9363-9365.
(5) Sullivan was a necessary party.
(6) The commissioners did not give notice of their meeting as required by statute, their report of the allowance of claims was a nullity and the claims allowed are not lawful claims against the estate. Even if regularly allowed, the claims would not be binding upon defendant who was not a party to the proceedings, but must be proved to be lawful.
(7) If complainant is entitled to recover, he is not entitled to the relief granted.
The first, second, third, and fourth points may be considered together. The bill in this case is founded upon sections 9363 et seq., 3 Comp. Laws, which clearly authorize the administrator or executor to institute such proceedings when there is a deficiency of assets in his hands, through the allowance of claims which become a charge upon the estate. Beith v. Porter, 119 Mich. 365. Paragraph 4 of the bill of complaint sufficiently alleges a deficiency of assets, the proofs satisfactorily show such deficiency, and neither an order of the probate court nor an application by creditors was required by the section of the statute above quoted. It was held in Beith v. Porter, supra, ^that this statute should be liberally construed to cover a case where the deceased paid the consideration for property and had title made to his wife in fraud of •creditors. ' By parity of reasoning I think the statute covers the present case. The bill as amended averred:
“ That all of the indebtedness set forth in paragraph 2 herein (except expenses of the funeral and of the last sickness of said Thomas L. State, which formed a small portion of said indebtedness) arose, accrued, and matured prior to the signing of said order, to wit: to November 14, 1900.”'
When the report of the commissioners on claims was offered in evidence, defendant’s counsel made the following objections:
‘ Mr. Swan: To so much of that as is embodied in the report of the commissioners showing the amounts of the claims allowed I object, as not binding upon the defendant Prentis in this case, he not having been a party to it and knowing nothing about it, no opportunity to be represented.
“ The Court: It will go in any way.
“Mr, Lightner: I think this is the essential part. I will just read the report, the items of claims. The report of the commissioners is in the usual form, allowing to Miss Catherine State, account of Charles N. Flattery, funeral director, $119.15; Father F. L. Wieman, funeral masg, $12; Stanton Clark, attorney’s fees, $5, being a total of $136.50. Also, Joseph E. State, amount claimed, $600, amount of final balance in favor of creditor, $600; commissioners’ fees, $25 each.
“ Mr. Swan: I have a special objection to so much of-the report as shows money allowed to Catherine State, on the ground that it accrued after the death of Mr. State, and should not have 'been allowed by the commissioners. They are not a proper charge against his estate, so far as this bill is concerned.”
These were the only objections presented, so far as the point now .under consideration is concerned, and are, therefore, the only objections which we consider upon this appeal. Mr. State signed the order for the deed on November 14th, when he was dying, and he actually died on the 17th of the same month. Under such circumstances, I think the allowance of claims by the commissioners not shown upon their face to have accrued after that time is prima facie evidence at least of their existence before that period. The allowance of the claims by the commissioners on claims, who had jurisdiction to pass upon them, in the absence of fraud, was conclusive against the estate and all persons who had an opportunity to be heard. The allowance of the claims created a deficiency of assets and, thereupon, the statute authorized the executor to institute proceedings. I think it was not the intention of the statute to require the executor, in the first instance, to prove these claims in proceedings like the present other than by the report of the commissioners or the judgment of the circuit court on appeal. While the allowance by the commissioners was not conclusive upon defendant (Seymour v. Wallace, 121 Mich. 402), the burden was upon him to show its invalidity, and having made no attempt to impeach their validity hy evidence, the claims must be considered valid.
The bill of complaint avers:
“ (2) That, as appears from the files and records of said probate court for Wayne county, on the 22d day of July, 1901, Amadeus T. Moran and Harry Rickel, both of Detroit, Wayne county, Michigan, were appointed commissioners on claims in the said estate of Thomas L. State, deceased, by the aforesaid probate court of Wayne county, and having duly qualified and given notice of their meetings, according to the statute in such case made and provided, did allow lawful and liquidated debts as claims against the said estate to the amount of $786.50, as appears from the report of said commissioners filed in said probate court on the 24th day of January, 1902.”
Paragraph 2 of the answer is as follows:
“Upon information and belief, he admits the matters set forth in the first, second and third paragraphs of said bill, except that he says that the claims allowed by said commissioners are not just and fair, and should not have been allowed against said estate.
“ The report of the commissioners on claims referred to in said bill now on file in the probate court for said county, .shows that the only claimants or creditors are Joseph E. State and Catherine State, a brother and sister of said deceased, and defendant says, upon information and belief, ■that said deceased, at the time of his death, was not indebted to either of said persons in the amount allowed, or in any amount whatever.
“The sum of $131.50 is allowed to Catherine State for funeral expenses of said deceased, and $5 for ‘ attorney fees,’ total $136.50, supposed to have been paid by said Catherine; and this defendant shows upon information and belief, that no part of said amount was a charge against her, said Catherine, and that if she paid the same, it was a voluntary payment, and should not have been so allowed to her. Further, that the same was not a claim .against said deceased before or at the time of his death, and furnishes no ground for the action of said executor in filing this bill.
“This defendant is further informed, and believes that ibis complainant, as executor as aforesaid, did not con test the allowance of said claims, and made no investigation or examination of the same, but suffered them to be allowed by the commissioners, if he did not consent to or procure their allowance, and he believes that said claims ought not to have been allowed, and would not have been if the said executor had properly contested them in the probate court.”
The answer having admitted that the commissioners, gave notice of their meetings, “according to the statute in such case made and provided,” it was unnecessary to prove such fact. It is true that it appeared by the testimony of the executor that he had never been served with notice of the meetings, but, as the qrder of the probate' court is not set forth in the record, we cannot say that it contained any such requirement, and the defense is not available under the answer. Reed v. Jourdan, 109 Mich. 128. Mr. Sullivan, having been paid in full and having parted with his interest, was not a necessary or proper party.
The decree provides that the deed—
“Be and the same is hereby set aside and vacated and declared null and void and of no effect whatever, as against the complainant.
“2. That the defendant, John F. Prentis, deliver up the said deed to the register of this court, to be canceled and that the defendant, John F. Prentis, execute and deliver to the complainant herein, as executor of the estate' of Thomas L. State, deceased, a good and sufficient deed of the said above described real estate, within twenty (20) days from the date hereof, and that in default of such conveyance, a certified copy of this decree may be recorded with the register of deeds for the county of Wayne, and shall stand for and have the same effect as if such conveyance were made.
“3. That the defendant, James T. Eeena, trustee, execute and deliver to the complainant, as executor of the last will and testament of Thomas L. State, deceased, a good and sufficient deed of the premises hereinbefore described, and that upon recording said deed, or a certified copy of this decree, the title to said premises is hereby decreed to be vested in said complainant as executor, as aforesaid.
“4. That the complainant, as executor, as aforesaid, shall proceed to reduce said land to money by the sale thereof, in the same manner as if the deceased had died seised thereof, upon obtaining a license therefor from the probate court, in accordance with the statute in such case made and provided; and that the complainant, as executor, as aforesaid, account to the probate court for the receipts from such sale.”
This decree was too broad, and will be modified, so as to provide for payment by defendant Prentis of the claims allowed and the costs of the proceedings in the probate and circuit courts within 90 days from the entry of decree herein. See Reed .v. Jourdan, supra. Upon failure to so pay such claims and costs, the land in question may be sold, as provided by the statute. Neither party will recover costs in this court.
Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred. . | [
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] |
Hooker, J.
The defendant has brought this case to this court by writ of error. The action is for an injury to plaintiff, who was run over by defendant’s street car. Upon the trial, the principal question of fact was whether defendant was negligent in starting its car when plaintiff was in the act of stepping from the car to the pavement, or whether he attempted to alight before the car stopped. There was testimony which made this a proper question for the jury. A number of assignments of error are relied upon, most of which are upon rulings which fail to impress us as having been prejudicial to the defendant. Some of them complain of leading questions, which are usually within the discretion of the trial court; one or more to the language used by counsel, which we think was not especially prejudicial; one was a complaint that questions relating to the number and ages of plaintiff’s children were persisted in, after the court ruled against such testimony; and one was to testimony offered to account for the failure of a boy to testify at a former trial. We are of the opinion that there was no necessity for this proof as to the ages of the children, and it should have been omitted. The court so held, and excluded the testimony; but some of the questions were pressed and answered after the court intimated that he considered them improper. The testimony showed, however, that all but one were large children or adults, and we think that the case should not be reversed upon this ground, in view of the ruling made. We think that it was proper to admit the testimony regarding the omission of the boy’s testimony at the earlier trial.
A physician who was familiar with the injury was asked, “How much, in your opinion, have those two injuries — that is, the injuries to each foot — reduced this man’s physical ability to perform manual labor?” to which he answered, “I think it has been reduced fully three-quarters.” This was objected to upon-the ground that it was pure “ speculation.” It is now argued that it was for the jury to determine that, and that it was incompetent for an expert to give an opinion. It would be competent to prove by an expert surgeon that a physical injury would make the use of an injured member an impossibility, and he should be able to tell in cases where an unprofessional man could not determine whether such, an injury would impair a man’s ability to do physical or mental labor, and in such a case no reason is suggested ,for not taking his opinion as to the degree of impairment. The case of Muldraugh’s Hill, etc., Turnpike Co. v. Maupin, 79 Ky. 101, is in point. The court said:
“ Dr. Bass’ statement that, if he were examining the appellee for a pension, he would allow him one-fourth, we understand to be his professional opinion that his capacity for labor is reduced one-fourth by the rupture. This, we think, was competent. The jury cannot be'supposed to be familiar with the character of that injury, or to be able, unaided, to properly estimate its effect in impairing the appellee’s capacity to earn money, and, hence, it was proper to allow them to be enlightened by expert testimony. But the witness should not have been permitted to intimate what he regarded as proper compensation for the injury. That was a question for the jury, and on which expert testimony was not competent, nor should he have been permitted to intimate what the damage would be from apprehension of death from the injury.”
See, also, Pennsylvania R. Co. v. Henderson, 51 Pa. 315. In Atlanta, etc., Railroad v. Johnson, 66 Ga. 259, testimony that a hand was mashed and injured, describing the injury, and how much his ability to work was impaired, was held admissible. See, also, Springfield Consolidated R. Co. v. Welsch, 155 Ill. 512. In our own case of Holman v. Railway Co., 114 Mich. 214, we held it competent to take the opinion of a physician as to whether a plaintiff’s injuries would permit of her doing household duties. In the present case the physician described at length the nature of the injury, and we consider the testimony admissible.
It is contended that it was error to permit the plaintiff to testify that he had no use of his foot. It is admitted that he followed the statement with a full description of its condition, whereby it appeared conclusively that he could use it; but it is said that the testimony first given was the statement of a conclusion by the witness and should have been stricken out. It is proper to permit a witness to state whether he can move an arm or leg, whether he can use a member in the usual way, and this testimony is no more than such a statement. It may have been untrue, but that does not affect its admissibility. It is no more a conclusion of the witness than is permissible in many instances. Not being arrived at by reasoning from known conditions only, as contradistinguished from experimental knowledge, the testimony was competent.
We think it unnecessary to discuss the question relating to .the exclusion of the testimony of the witness Johnson, taken upon another trial. It was not a deposition, and we cannot hold broadly that, before a witness can be asked questions as a basis for impeachment, all of his testimony, taken by a stenographer, must be read to him. But upon recross-examination counsel seem to have read much of such testimony, and obtained answers to the ■questions asked. It is manifest that defendant suffered mo injury from the ruling.
The judgment is affirmed.
McAlvay, Blair, Montgomery, and Ostrander, ■JJ., concurred. | [
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] |
Moore, J.
The questions involved in this case are so clearly stated by the circuit judge in his written opinion -that we insert it here:
“ The facts in this case, as conceded, or, in my opinion, ¡established by competent proof, are as follows:
“1. That on April 26, 1902, the complainant purchased at the auditor general’s office the State bid for the taxes of 1898 on the lands in, question herein. That at that time the taxes of 1899, 1900, and 1901, were delinquent and unpaid. That complainant received a tax deed by virtue of such purchase on the 9th day of August, 1902, but the same was not recorded by him until after the-commencement of this suit.
“2. That the First National Bank of Detroit, Nicholas C. Hartingh, and W. Frank Whittemore were on said. August 9, 1902, the grantees in the last recorded conveyance in the regular chain of title to said land. That on October 7, 16, and 16, 1902, notice to redeem pursuant to the statute was served on said grantees, and proof of such personal service was filed in the office of the county clerk of said Arenac county on October 20, 1902.
“3. That on September 9, 1902, the defendant Anna J. Meilstrup purchased.at the auditor general’s office the State bid for the taxes of 1899 on said land, at the same time paying the taxes for the years 1900 and 1901, and on September 10, 1903, she received a tax deed pursuant to such purchase.
“4. That on December 4, 1902, said Hartingh and Whittemore, and on July 25, 1903, said bank, deeded their interests in said land to the Iosco Land Company, and said company on August 8, 1903, deeded the same to the defendant James S. Meilstrup.
“5. That on September 25,1903, the defendant James S. Meilstrup conveyed all his interest in said land by warranty deed, subject to taxes, to the defendant Anna J. Meilstrup.
“ 6. That on May 10, 1904, complainant tendered to defendant Anna J. Meilstrup the sum of $80 (this being "the amount of the State bid for the taxes of 1899, and 100 per cent, additional thereto and $5) and demanded a reconveyance from her, which she declined to give.
‘ ‘ The complainant now files this bill to compel the defendant Anna J. Meilstrup to make such reconveyance* and to quiet the title of said land in him as to both said, defendants.
“It will be observed that both complainant and defendant Anna J. Meilstrup claim title under tax deeds. When the period of six months had elapsed after complainant filed with the county clerk proof of service of the notice to redeem, as stated in the second finding, to wit, on April 20, 1903, he became the absolute owner of the land in question. At that time he could have redeemed from the State bid purchased by Mrs. Meilstrup for the taxes of 1899 at either the office of the auditor general or county ■treasurer. He is certainly chargeable with notice that the taxes of 1899 were unpaid. There would seem to be no question of equity involved, as either of the parties by •consulting the public record of taxes could have relieved themselves from the effect of the conveyance obtained by the other. The question presented is a purely legal one. Did the conveyance by James S. Meilstrup to Anna J. Meilstrup, made on September 25, 1903, relieve her from serving the notice required by section 140 of the tax law (1 Comp. Laws, § 3959), in order to make her deed absolute ? This section, prior to the amendment of 1903 (Act No. 236, Pub. Acts 1903), provided that no writ of assistance or other process for possession, based on such title as Mrs. Meilstrup had, should be issued until six months after she should have filed with the county clerk proof of service of the notice, therein provided for, ‘ upon the grantee or grantees under the last recorded deed in the regular chain of title to said land.’ Section 141 provides that the party so served with notice may at any time within six months after the filing of proof of service of such notice make payment to the purchaser of certain sums stated therein and be entitled to a reconveyance of the interest acquired thereby. Section 142 provides that no such purchaser shall enter into possession until six months after notice has been given, as required by section 140, ‘ unless he shall have acquired from said parties their title thereto under conveyance from said party or parties of their interest in said land.’ Section 143 limits the time within which the parties served with such notice may make such payment and demand such reconveyance of commence suit to set aside the tax deed to said six months and bars their right to question the validity of the tax deed thereafter.
“From the provisions in the section above noted it is apparent that Mrs. Meilstrup was not required to serve the complainant with notice, even if she knew of the existence of the tax deed. As it was not recorded, there can be no presumption that she did. The only person entitled to notice on September 10, 1903, when she received her tax deed, was James S. Meilstrup. But procuring a conveyance from him on September 25, 1903, she complied with the requirements of section 142 and was entitled to at once enter into possession of said land. Her deed then became absolute against all persons entitled to such notice -and all persons who had any title of record against said land. The serving of a notice and filing proof of service thereof would have been a useless formality so far as. James S. Meilstrup was concerned. If so, and his interest was the only one affecting her title and her right to possession at that time, so far as the records showed and so far as she knew, I am of the opinion that it should be held that she had substantially complied with the requirements of these different sections when construed together, and that her title became absolute as against the right of complainant to demand a reconveyance. The title passed to Mrs. Meilstrup when she obtained her deed. To entitle her to possession she is required-to comply with certain provisions of the law. These provisions are not to-Strengthen .her title, but to permit certain persons, who-are .particularly mentioned, and who appear by the records to have specific interests, to obtain a reconveyance^ from her on certain terms. She has obtained the interest, of the only ones thus entitled. I do not wish to be understood as holding that a narrow construction should be given to the words ‘ grantee or grantees ’ as used in these-sections, nor in passing upon the question as to the necessity for such notice in cases where the record showed that-the estate of such grantee was involved under levy, or* other proceedings. The complainant claims no such right-in this case.
' “As to whether or not complainant is barred from questioning the validity of her tax deed by the limitation in section 143, I express no opinion, as that question is; not involved in this proceeding.
‘ ‘ It follows that a decree may be prepared dismissing-the bill of complaint, with costs.”
The case is brought here by appeal. Counsel for appellant say in their brief:
“At the time the learned circuit judge filed his opinion in this case, the decision of Boucher v. Trembley, 140 Mich. 352, was not reported, and it would seem that the decision in that case would have an important bearing upon the correct construction to be placed upon the statutes, and would call for a reversal of the decree of the circuit , court, and the entry of a decree in this court in accordance with the prayer of the bill of complaint. This court, in the case last cited, used the following very-significant language:
“ ‘ Under this decision we cannot avoid the conclusion that a conveyance from the original owner who, during this period of redemption, is held to be the owner of the property and who is not, until due notice and the expiration of the time for redemption, divested of his title, of necessity merges the tax title into the original title so obtained. Consequently in this case the plaintiff took the title to the property in dispute subject to the equity of these defendants to claim for improvements, and the court did not err in holding that such right was not cut off by plaintiff’s tax title.’
“* * * We also claim that, under the provisions of section 143, Act No. 128, Pub. Acts 1901, the parties holding the original title were barred from questioning the validity of the tax title thus acquired by complainant. The Iosco Land Company, to whom they quitclaimed after such notice served on them, would also be barred and bound by such notice. James S. Meilstrup, the defendant who subsequently obtained a deed, would also be bound by such notice. Anna J. Meilstrup, who held the subsequent tax title, would also be bound by such notice and should be held to knowledge of the forfeited condition of such original title.”
The contention of counsel amounts to this: That by acquiring a tax deed based upon the unpaid taxes of 1898, which deed was acquired at a time when the taxes of 1899, 1900, and 1901 were unpaid, and no part of which has been paid by complainant, complainant has succeeded not only in extinguishing the original record title, but may compel defendant (who has a deed based upon the unpaid taxes of 1899, and who at the time she acquired her deed paid the taxes of 1900 and 1901, and who subsequently acquired the interest of the original holders of the title to the land) to convey to him without reimbursing her for the cost of the original title and the amount paid for the taxes for 1900 and 1901. Such a result is very inequitable and ought not to be reached unless the law compels it. If counsel are right in asserting that his tax deed and the notices which were given made him the absolute owner, it can hardly be said that Mrs. Meilstrup, by the conveyance to her on September 25, 1903, became so vested with the original title as to merge her tax title in the original title. The original title cannot be held as extinguished, and the title absolute in the complainant, and at the same time to be in existence so that when acquired by defendant her title based upon a valid tax deed is merged in the original title, both of which by that act become worthless.
We do not think the court erred in his disposition of the case.
The decree is affirmed.
Hooker, J., concurred with Moore, J. | [
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Grant, J.
{after stating the facts). 1. Thecharterof the defendant city provides for a board of fire commissioners, which is entrusted with the entire control of the fire department. It also has a board of public works, which is authorized to cause its inhabitants to be supplied with water, to'furnish the same at established rates, and to construct all necessary works. Counsel do not disagree as to the law. The learned counsel for the plaintiff admits that the doctrine that—
“ A municipality, in the absence of a statute to the contrary, is not responsible for injuries caused by the negligence of its employés engaged in so-called governmental functions, is too well established in this State to be questioned at the present time. * * *
“ Without doubt, according to the weight of authority, a municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to-the extinguishment of fires.”
Under this concession, which is undoubtedly the law,, the citation of cases in this court or any other jurisdiction is unnecessary.
Counsel for both sides have shown great diligence in examining and citing cases, not so much for the purpose of stating the law as of finding facts similar to those in this case, and thus showing, the one that it is within, and the other that it is without, the rule. The question becomes one of fact. The court found, and so instructed the jury, that this hydrant had never been used for any other than fire purposes; that no-water had ever beén sold by the city or used by it for any other purpose than for the extinguishing t of fires; that-the sole object of opening and flushing this hydrant was. for the purpose of removing sticks and stones which might have accumulated or been put there, so that in case of fire its use would not be obstructed. It was immaterial that these firemen opened and flushed other hydrants in the city for other purposes, such as purifying-the water, or that they rendered that service for the city or board of public works at the same time that they were-flushing the hydrants used exclusively for fire protection.. It was also immaterial for what purpose other hydrants, were used. All such testimony was therefore properly excluded. There was no evidence introduced showing- that this hydrant had been used for other purposes, and no testimony offered for that purpose was excluded.
The city had no pecuniary interest in establishing or maintaining this hydrant. It received no compensation for its use. It was maintained entirely by taxation upon the entire city, and its use was for the sole benefit of the-city. It was constructed, maintained, and used in a governmental capacity. Welsh v. Village of Rutland, 56 Vt. 228; Edgerly v. Concord, 62 N. H. 8; Fisher v. City of Boston, 104 Mass. 87.
. 2. This action cannot be maintained under the statutory liability. The street was paved, was in good condition, and reasonably safe for travel. Its condition had nothing to do with the accident. The sole cause of the accident was the sudden flow of the water, which frightened the horse.
Judgment affirmed.
Montgomery and Hooker, JJ., concurred with Grant, J. | [
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Montgomery, J.
The complainants filed a bill of complaint praying an injunction restraining the defendants from reconstructing a jail building. A preliminary injunction was issued in accordance with the prayer of the bill. On a motion for dissolution of the injunction filed by defendants, an order was made modifying the injunction so as to limit its scope to restraining the defendant to expending more than $500 per year in repairing the jail building. Oomplainants moved to set aside the order modifying the injunction. This motion was denied, and an appeal has been taken from both decisions.
An appeal does not lie from either order. Merchants’, etc., Bank v. Kent Circuit Judge, 43 Mich. 292; Boinay v. Coats, 17 Mich. 411; Spencer v. Stearns, 28 Mich. 463; Schuffert v. Grote, 83 Mich. 263. This is of less consequence to the parties, as since the appeal was taken the legal questions involved have been considered in Attorney General, ex rel. Gibson, v. Board of Sup’rs of Montcalm Co., 141 Mich. 590.
The appeal will be dismissed, and the case remanded for further proceedings.
McAlvay, Blair, Ostrander, and Hooker, JJ., concurred. | [
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] |
Blair, J.
Complainant filed his bill in this suit for an accounting between himself and the defendant Merrill of the business of the Bay City Times Company and of the proceeds of the sale thereof to defendant Booth.
Complainant alleges that on the 20th day of February, 1903, he was the owner of 400 shares of the capital stock of the company, which he was induced to transfer to defendant Merrill, to enable him to sell to Booth, by fraudulent representations that the largest price obtainable for the property was $32,000, for which amount he had given an option to Booth, whereas Booth then had an option for $65,000; that after the sale Merrill represented that he only obtained $30,000, whereas he had received $50,000; that in reliance upon these representations complainant agreed to and did accept $8,000 for his interest. Complainant also alleged by amendment to his bill of complaint that 300 shares of stock, claimed by defendant Merrill to have been purchased by him of one Bennett, were purchased with the funds of the corporation, and therefore became treasury stock, reducing the active stock to 1,500 shares, of which complainant held 400 shares and defendant Merrill 1,100. Complainant also averred that defendant had unlawfully converted to his own use funds of the company, for which he should account.
The defendant Merrill avers that he purchased complainant’s stock on the 29th of October, 1901, and from that date until the sale to Booth was the sole owner of the entire stock of the corporation. This contention presents the principal issue of fact between the parties. The testi mony was taken before a commissioner, and the case heard by the judge of another and somewhat distant circuit. The circuit judge found that Gustin did sell his stock to Merrill in October, 1901, and was therefore not interested in the selling price; that Merrill purchased the Bennett stock with the moneys of the corporation and “must account to Mr. Gustin for such a proportion of the amount so used, viz., $2,000, as Mr. Gustin’s stock then bore to the total amount of outstanding stock, with interest;” that “the accounts in evidence are not so stated that the court is able to determine what company moneys, if any, Mr. Merrill used prior to October 29, 1901, the date on which he became the owner of all the stock. Both parties will be permitted to offer proof upon this point if they wish to do so.” After hearing the supplemental proofs of the parties, the court found, as follows:
“Balance due Times Company from Frank C. Merrill -.-$7,480 63
Complainant Gustin’s share of this balance, or four-eighteenths...........................-................$1,662 36
Interest at 5 per cent, due complainant from October 29, 1901, 3 years, 5 months, 11 days-------------------- 286 54
Total amount due complainant from defendant Frank C. Merrill-_________________________________-........-$1,948 90"
Decree was rendered for this amount, and both parties appealed to this court. It is agreed that prior to October 29, 1901, the complainant was the owner of 400 shares of' stock. On the back of his certificate there appeared at the hearing the following indorsements:
“ For value received I hereby sell, transfer, and assign to F. C. Merrill all the shares of stock within mentioned and authorize him to make the necessary transfer on the books of the company.
“Witness my hand and seal 2?th Nov., 1900.
“W. EL Gustin.
“Witness: Olive Smith Merrill.”
And below the assignment, in writing: “Frank O. Merrill.” It is also agreed that complainant signed the transfer of his certificate and delivered it to defendant Merrill for a temporary purpose, and that the certificate was never returned.
Merrill testified that he purchased this stock of Gustin, October 29, 1901, giving him therefor his note, payable on demand, for $4,000, with the understanding that, whenever Gustin wanted the money, Merrill’s mother would get it for him.
“ Where at this time was the certificate of stock which had originally been issued to Mr. Gustin for the $4,000 ?
“A. It was in my private drawer in the safe, where it had been after it was given to me at the time of the Bennett incident. * * * Mrs. Merrill, my wife, and my mother knew that I had purchased the McMillan stock, and I asked my wife to come to the Times Company office, which she did in the afternoon. Mrs. Merrill came to the office of the Times Company on October 29th, and I went to the safe and got that certificate and went into the editorial room. * * * She sat down at a desk, at Mr. Gustin’s desk, I believe. She asked Mr. Gustin if that was his signature on the stock. He said it was. She signed her name, and I signed my name, and we went out of the editorial room; and a short time later I turned over this stock to my mother, which she held as collateral. * * * I think it was at the same time that Archie gave me his stock, that I bought of him, along in December.
‘ ‘ Q. Then you turned over to your mother his certificate and the McMillan certificate at the same time ?
“A. Yes, sir.”
The testimony of defendant Merrill is corroborated by Ms wife, who testified:
“And we went into the editorial room, and I met Mr. Gustin there — sat down at the desk there. I saw his signature on this paper. I asked Mr. Gustin if that was his signature, and he said it was, and I was a witness of it.
“ Q. Did you sign your name then ?
"A. I did. * * *
‘ ‘ Q. Do you remember about what time this occurred or what year ? •
“ A. The only way I can remember it, it was the fall before the baby was born, and that was in 1902, and it was the fall before that, some time in the fall. I cannot fix the date. * * * I cannot remember anything else at all that occurred there that day.”
Mr. Hamilton, the bookkeeper, also testified to a statement by Gustin, some time prior to 1903, that “he was going to dispose of his stock, or was in the course of disposing of his stock,” and to a further incident—
“ Of Mr. Gustin showing me a piece of paper. He was in the act then of putting the paper in his pocket as he was passing my desk, and seemed at the time to be very much pleased over something, and he said he had got — I think the expression was that he had got — $4,000 out of it. * * *
“ Q. Can you give the year ?
“A. No; I cannot.
“ Q. You cannot tell whether it was 1901, 1902, or 1903, can you ?
“A. I can tell it was not 1903.
“ Q. How can you tell that ?
“A. Because it was about the end of the year some time. * * * Mr. Kinnane asked me if I knew that Mr. Gustin was a stockholder — if I understood he was a, stockholder.
“ Q. What did you tell him ? v
“A. I told him I understood that he was. * * *
“ Q. The fact is that you did not at that time recall that you had had the conversation with Mr. Gustin that you have testified to here this afternoon ?
“A. Possibly I did not. * * *
“ Q. Can you tell the year ?
“A. No, sir; I have no idea of the time.
“ Q. You would not be certain that $4,000 is the amount he mentioned either ?
“A. No, I would not be positive. „
“ Q. Whether it was $4,000 or $8,000, you don’t remember ?
“A. No; I do not.
“ Q. It might have been $8,000 as well as $4,000 ?
“A. I have no recollection of $8,000 being mentioned.
“ Q. You have no definite recollection of any other amount ?
“A. No, sir; I would not say either.”
Archibald McMillan testified that on October 27, 1901, at a meeting with Gustin and Merrill, or prior thereto, and after the time he agreed to sell his stock to Merrill and Gustin, Gustin said—
“That he would like to get out of there, or words to that effect.
“ Q. That is, in effect that he could not buy the stock, and he didn’t know as he wanted to buy it, and he didn’t like the way the business was running, and he wanted to get out of there himself. Is that the substance of it ?
“A. I think that was the substance of it.”
Complainant testified that he never sold his stock to defendant Merrill, never received any $4,000 note from him, and that Mrs. Merrill never witnessed his signature to the transfer of the certificate in his presence. He denied the statements attributed to him by Hamilton, but testified that—
“The Monday morning following the closing of the deal I went through there, and told, I guess, Gerry Laing and the rest of them, and Mr. Hamilton, that I guessed I would go up now and get my money. That is the only talk I ever had with him about it. At that time I had the check in my pocket, the $8,000 check. When I say closing of the deal, I mean the sale to Booth. I was going to the Commercial Bank to get the check cashed.”
His solicitors contend that the truth of his statement is established by the circumstances attending the sale to Booth, the papers executed by Merrill and Gustin for that purpose, the reports of the corporation to the secretary of State, the fact that the note for $4; 000 was written upon a blank which was not in use till after the sale to Booth, and the admissions of Merrill that Gustin owned the stock at the time of that sale. Frederick Hebinger testified to a conversation with Mr. Merrill after the sale to Booth :
“Mr. Merrill told me that he received $32,000; and from that I told him I supposed Mr. Gustin must have gotten a nice little share of it, and he said, ‘ Yes, he said, he got a good price, and told me that his share was $8,000.’ From that, then, I thought of Mr. McMillan, he being associated at the time of his death, and I asked him if the McMillan estate got about that proportion out of it, and lie said, ‘ No, that interest had been purchased some time before.’ That is all the conversation, and that is all I know about the case.”
Herbert H. Gustin, a brother of complainant, testified:
“I had a conversation with Mr. Merrill relative to the transaction. I think it was within a week after the announcement of the sale. * * * Cap and I were going down together, and I says, ‘ Cap, I hear you have sold out the Times Press.’ He says, ‘Yes.’ I says, ‘How much did Bert get out of it ?’ He says, ‘ He got $8,000— just double what his stock was. I done the fair thing with Bert and gave him what he wanted.’ He says, ‘ I had an option on Bert’s stock for this last two or three years, and I could have bought it at par, but I done the square thing by Bert. I gave him two for one.’ ”
The annual report of the corporation, showing its condition on the 1st day of April, 1902, and sworn to by Merrill, Gustin, and Clarke, April 28, 1902, stated the ownership of stock as follows:
Stockholders’ Names. Shares of Stock Held.
F. C. Merrill..... ___________1,398
W. H. Gustin.... ___________ 400
W. A. Clarke — . ........... 1
J. D. Jones______ ____________ 1
The annual report showing the condition of the corporation January 2, 1903, sworn to by the same directors, January 20th, 1903, states the ownership of stock to be:
Stockholders’ Names. Shares of Stock Held.
' F. C. Merrill..... ...........1,398
W. H. Gustin — ........... 400
W. A. Clarke— ........... 1
J. D. Jones______ ........... 1
Treasury stock .. ........... 800
2,600
Filed January 22, 1903.
With reference to the sale to Booth, Gustin testified that he called Merrill’s attention to a report that the Evening News Association contemplated coming into the newspaper field in Bay City, and suggested that Merrill call upon them, as he was going to Detroit, and take the mat ter up with them; that Merrill did not see Booth upon this -occasion, but later on met him by appointment on February 19, 1903. On the 20th of February, 1903, upon his return from the interview with Booth, he said:
“He had sized up the situation and they were going to come in here. Cap said they could buy their paper in large quantities and buy their ink a good deal cheaper ■than we could, and they were in a position to give us a hot competition, and it was a question whether we could put up a fight against them — a question how long we could stand against such a corporation as the Detroit News Association. * * * He said Mr. Booth wanted to know what our indebtedness was, and Mr. Merrill said he enumerated the indebtedness, which was $3,000 on the building, and $1,500 on the machinery, and $1,500 in minor accounts around town, and little outstanding bills that $1,500 would clear up, making $6,000 altogether of debts. He says Mr. Booth was willing to pay par and pay those debts. In other words, he would pay $32,000 for the paper, and we were to pay the debts out of the $32,000. * * * Merrill said he had done his best to get a better price. He had talked the value of the field and plant all over with Mr. Booth, and Mr. Booth was in a position where he could judge, and he didn’t care much about it. Of course, he wanted to get the entire field, and that is what he figured he was buying. The machinery and plant didn’t amount to anything, but he was willing to pay $26,000 to get the paper out of the field and have a clear field here. That was the best price he could get. Finally, after the matter was gone over in that way, we both concluded it would be better for us to sell under the circumstances. * "* * Now, he says, he took out his pencil and commenced to figure. He says: ‘ You have got four-eighteenths now. When I bought that stock of Bennett’s I agreed to do the square thing by you. Now I will give you 100 shares of that stock. That will make you five-eighteenths.’ He figured out five-eighteenths of 26,000, and handed it back to me on a little scrap of paper about six inches long.
“ Q. Did you see the figures that he put down on the paper ?
“ A. Yes, sir.
‘ ‘ Q. What were they ?
“A. He divided 26,000 by 18 and multiplied by 5.
“ Q. You saw him put down the 26,000 ?
“ A. Yes, sir.
“ Q. You saw him put down the 5-18 in figures ?
“A. Yes, sir; he figured up and says, ‘Well,, that comes to a little over $8,000.’ I says, ‘Cap, I have not figured it, but I have figured it in my mind, and I thought my share was about $7,000.’ Then I said, ‘ There is that note of mine in the safe now, that $666 note, the company note I hold against the company.’ He says, ‘ How much does that amount to ?’ I says, ‘ I have not figured it up, but I think it amounts to over $800, the note and interest.’ He says, ‘ We will call it $8,000, lump it at $8,000, for my share of the sale and the amount due on the note.’ He wanted to know if that was all right. I says, ‘ Yes, that is fair enough.’ Now, he says, ‘ Write me,out a bill of sale of your stock. ’ I says: ‘You have got. my stock in your drawer. You can use that. My name is on the back of it.’ ‘No,’ he says, ‘ I don’t want to use that. I want something to show Booth that you are perfectly satisfied that this deal go through.’ He says, ‘ I will use that in connection with the certificate, showing it is the same one.’ I says, ‘ You dictate something to suit you, and I will write it out. ’ I took a pen or pencil, and I wrote out the bill of sale. He dictated it, and I wrote down what he dictated. This bill of sale referred to the old certificate of stock, the original 400 shares. We wanted to identify that certificate, and I says to Cap, ‘ When did I transfer that to you ? ’ And he didn’t seem to know, and I didn’t seem to remember the year exactly, and he says, ‘ Put in there, “transferred in 1901.” It will be all right.’ That is the time that we supposed that we fired Bennett. I signed the bill of sale and delivered it to him at that time. He then wrote his check out on the Commercial Bank for $8,000, and told me to hold that check until he would let me know when the check was good. I suggested the advisability of our signing an agreement between ourselves, in case the deal did not go through, that I would get my stock back and he would get his check back. He says, ‘ Bert, I will trust you, if you will trust me.’ Isays: ‘No, Cap; that isn’t business. We ought; to have something to show how we stand in this matter.’ And I sat down and wrote the business out and called him to sign it. * * * I wrote it with a carbon paper underneath, so that it made a carbon duplicate copy, and I took one and he took the other. We both signed both copies. * * * He went to Detroit to close the deal on. the 4th of March, 1903. About 4 o’clock in the afternoon,, in the business office of the Times Press, he said he had been up to Mr. Weadock’s office, and they had talked the matter all over, and it was decided that we would have to sell, and he was going down to sell in some way or other, and close the deal up. He was going to be there the next day. I says, ‘ Well, now, Cap, if you make the deal, send me a cipher dispatch saying that the horse is sold, and I will understand it,’ and he said he would. I shook hands with him, and we were standing at the telephone desk, and wished him success, and I went home. * * * On the evening of March 5th I received a telegram from Mr. Merrill.”
The bill of sale, the agreement, and the telegram read as follows:
“Bay City, Mich., Feb. 20, 1903.
“To Whom It May Concern; This is to certify that I have tranferred to Frank C. Merrill all my right, title, and interest in the 400 shares of stock in the Bay City Times Company, transferred to said Merrill in 1901, for a consideration of eight thousand dollars, and am perfectly satisfied in case deal with Booth of Detroit is consummated.
“ W. H. Gustin.”
“Bay City, Mich., Feb. 20, 1903.
“We, the undersigned, give this note to each other, and both agreeing that, in the event of deal with Booth of Detroit not being consummated within three weeks, Gustin agrees to return to Merrill his check for eight thousand dollars this day issued and Merrill agrees to return to Gustin the bill of sale of his stock dated this day.
“Our signatures: W. H. Gustin.
“F. C. Merrill.”
" Received at
“811 North Water St., Bay City, Mich.
“46.DE AC ON 10 Paid.
“Detroit, Mich., Mar. 5, ’03.
“W. H. Gustin,
“ Bay City, Mich.
“ Sold horse, lower price but think will be satisfactory you.
“ F. C. Merrill.
“7:46 P. M.”
“I told him that the paper— I knew the paper was worth more money; that we ought to have got more for it. I says, ‘ How did you come to cut,’ and he said that Mr. Booth absolutely refused to pay one cent more, and just then he pulled out a new bank book out of his pocket and held it up to me and showed an account in the Commercial Bank of $30,000, and he said, ‘ That is what I got.’ ”
Mr. Merrill’s version of the transactions is as follows:
“ That option, or a copy of it, has been offered in evidence in this case. The amount of it was $65,000. I did not say anything to Mr. Gustin in relation to my having given an option; as to the facts that I had given an option prior to the time it was given. I said nothing to him about the fact I was negotiating a sale of the paper to Mr. Booth until I had given the option and come home, the 20th of February. I first had a talk with Mr. Gustin in relation to the matter on February 20th, the day after the giving of the option. I think it was the next morning, in the editorial room. I went in the editorial room and I said to Mr. Gustin: ‘ I haye given an option on the paper to Mr. Booth of the Detroit News, and if the deal goes through I want to take your note up, or my note up. He expressed surprise. The conversation occupied, I think, about five or ten minutes, because I know I went out, and then I went in the editorial room in the afternoon and saw him. I don’t recollect that I told him anything about an examination of the books.
‘ ‘ Q. Yo.u heard this testimony in relation to your showing him a check, answering that if the deal did not go through you would have that much to blow in ?
"A. Yes, sir.
“ Q. Did you have such a conversation ?
“A. I never said to him that w& would have that much to blow in. I showed him the check, bearing out the statement that I had made that I’ had given Mr. Booth an option. He complained about selling his stock. In the next conversation I had with Mr. Gustin he said he thought he had made a mistake; that if he had held on he could have gotten more money. I said to him that it was a very peculiar thing; that he did not want to take any chances, he had had an opportunity to buy the McMillan stock; that he had had an opportunity to buy treasury stock before that, but that he would not take any chances. As long as I had taken the chances that I had taken, that I didn’t see what kick he had coming. I told him that Mr. Booth said that he was coming into Bay City, whether he bought the Times Company, or whether he started a paper; that undoubtedly there would be a fight. I then said to him: ‘ I will tell you what I will do. I will give you my check for $8,000. You return to me my note. If the Booth deal goes through, you can cásh the check, and if it does not go through, you áre to take'up your certificate of stock and help me make the fight.’ I said, ‘I had every reason to believe that Mr. Booth is in earnest, and that he is coming in here, and that he wants the Times ’property.’ Mr. Gustin agreed to the proposition, gave me back the note, and I gave him a check. Then I said to him, ‘ Are you satisfied now ?’ He said he was perfectly. I says, ‘ Then I would like to have you give me something, an agreement that you are agreeable to this transaction,’ and he then sat down at his desk and wrote the paper which has been offered in evidence. * * *
‘ ‘ Q. Did you have any part in dictating that agreement ?
“A. Absolutely none. * * * After some talk, I started to go out of the editorial room, and it occurred to me that Mr. Gustin had my check for $8,000, and I thought it well to. get a paper from him, and I asked him to give an agreement whereby, in case the Booth deal was not consummated, that I should receive my check back, and that he should take his stock. * * *
“Q. What obligations were then outstanding?
“A. I owed $3,000 on the building; three notes, of $500 each, on the Mergenthaler linotype machines, with interest; $4,000 to A. H. McMillan; $4,000 to W. H. Gustin; $666 to Mr. Gustin for the Times Company note; the McMillan note of $666.66, although there had been asmall payment made on it at that time; about $1,000 in bills; for one or two carloads of paper — the paper bills were not included in the $1,000 — aggregating about $15,000. * * * Mr. Gustin seemed to be very anxious, and was very anxious, that the sale should be made, and when I went to Detroit I told him if I sold the paper I would telegraph him.
“Q. At the time of the conversation, and up to that time, had you ever discussed with Mr. Gustin directly or indirectly the amount of the option ?
“A. That question had never , been discussed in any Way.
“Q. Had he ever asked you ?
“A. No, sir.
“Q. Did you send Mr. Gustin a message in relation to • the sale of the paper ?
“A. I did.
“Q. This message that has been offered in evidence here ?
“A. I believe it is. * * *
“Q. Why did you give him a check for $8,000 ?
“A. I wanted the man satisfied in the first place. I wanted the man satisfied, and I wanted, as I have stated here, that in case Mr. Booth came into the field, to have Mr. Gustin there. Mr. Gustin was a valuable man in the editorial room. He had always been a valuable man as a reporter in Bay City. I had a great deal of indebtedness, and after my conversation with Mr. Booth, saying he was coming into the field, and plans had been made for coming here, if he did not buy the plant, I was confident he would come in, and I thought that if Mr. Booth came and bought the Bay City Times property, and paid me what my option called for, $65,000, that by paying Bert Gustin $8,000 I was treating him all right, and it would be perfectly satisfactory, and everything would be perfectly satisfactory in every way.
“ Q. Did you pay him this additional $4,000 because you wanted an agreement from him to stay by and make the fight with you if the paper was not sold?
“A. I made the'proposition to him which was accepted.
“ Q. (question read).
“A. That reason and the reason that I wanted the man satisfied.”
The oral testimony as to the ownership of the stock is so irreconcilable that great importance must attach to the written evidence in determining where the truth lies. The possession of the stock by Merrill regularly assigned to him by Gustin on November 27, 1900, would be quite conclusive, if it were not for Merrill’s admission that such assignment was merely to enable him to vote the stock and that Gustin was the owner of the stock till October 29, 1901. The circumstances of the sale of the stock on that day as narrated by Merrill, are somewhat unusual. The only change made in the certificate was by Mrs. Merril attaching her signature as a witness. The transfer ■still purported to have been made on November 27, 1900, •and it would naturally be presumed from the face of the paper that the signature of the witness was made upon that day. There is nothing upon the face of the paper to indicate a sale on October 29, 1901. The signature of a witness added nothing to the validity of the oral agreement or the written transfer, and- nothing whatever was said at the time to indicate that this was a new transaction. Neither would it be usual for a business man to request his wife to come to his place of business to witness such a •signature when there were others at hand, and if he desired evidence of a change of the bailment to a transfer of title he would naturally have required a memorandum to ■that effect. On April 28,1902, six months after Merrill claims to have become the. owner of Gustin’s stock, he made affidavit to the annual report, stating that Gustin was the owner. Again, in January, 1903, he made oath "that .Gustin was the owner of 400 shares. Prior to March, 1901, the undisputed ownership of stock in the company was as follows: Archibald McMillan, 400 shares; "Wilhert H. Gustin, 400 shares; Edwin and Maria C. Bennett, 100 shares; Edwin and Maria O. Bennett, contract •for stock held as treasury stock, 200 shares; Prank O. Merrill, 700 shares; treasury stock, 800 shares. On March .15, 1901, Merrill bought the Bennett stock, and on October 28, 1901, he bought the McMillan stock. On March 11, 1901, Merrill had transferred of his stock 1 share each to Jones and Clarke; but the certificates, therefor were not removed from the stock hook, and it is conceded that the two shares really belonged to Merrill. The Bennett stock -and the McMillan stock, added to the shares then owned "by Merrill, made 1,400 shares, and, deducting the shares ■transferred to Clarke and Jones, 1,398, the precise number he swore in the reports that he owned. These reports were made out by Mr. Merrill himself, are consistent with •complainant’s claim of ownership, and are inconsistent with defendant’s claim. In order to sustain his claim of purchase, we must find that he deliberately made oath to a false statement. The circumstances should be very convincing to induce such a result. The bill of sale, except as to the date of the previous transfer, stated as 1901,is also consistent with complainant’s claim, and at least unfavorable to defendant’s contention. Gustin says that this paper was dictated by Merrill, who said that he wanted it “to show to Booth that you are perfectly satisfied that this deal go through,” and that the year was intended to be the year of the original transfer, but through faulty recollection was written 1901, instead of 1900. Merrill denies that he dictated the- bill of sale, but says it was written wholly by Gustin at his request.
“ I says, ‘ Then I would like to have you give me something, an agreement that you are agreeable to this transaction,’ and he then sat down at his desk and wrote the paper.”
Disregarding the conflicting testimony of the parties* and looking to the paper itself, it is apparently a transfer of stock, previously transferred in 1901, for a consideration of $8,000. The only actual transfer of the certificate of stock that was ever made, however, so far as the paper itself shows, was in 1900, and it is agreed that that transfer was not intended to change the ownership. Moreover, the consideration for the alleged transfer of title in 1901 was $4,000. If Merrill was merely a bailee of that stock for Gustin, it was reasonable that he and Gustin should agree upon the actual transfer of ownership for $8,000. If Merrill was actually the owner of the stock, the agreement was useless and the consideration extraordinary. If he did not desire the bill of sale as an evidence of title, but merely to show that Gustin was agreeable to the transaction, it is singular that the writing was not confined to that purpose. A mistake in the recollection of the year in which a transaction took place is not so uncommon as to make the statement of the year of controlling influence. The mutual agreement signed by both, parties must also be considered in construing the bill of sale. Whoever suggested the making of this agreement, it was, confessedly, deliberately made by very intelligent men to protect their interests. In the bill of sale Gustin states that he is “ perfectly satisfied in case deal with Booth of Detroit is consummated.” The mutual agreement was evidently made to provide for “ the event of deal with Booth of Detroit not being consummated within three weeks.” In that event “ Gustin agrees to return to Merrill his check for $8,000 this day issued and Merrill agrees to return to Gustin the bill of sale of his stock dated this day.”
This agreement is plain and unambiguous, and clearly shows that the writing signed by Gustin just before was not intended primarily as a statement of Gustin’s satisfaction with the transaction as between himself and Merrill, but was intended to be (what its terms indicate) a bill of sale of a present interest in stock for $8,000 and an expression of satisfaction with the deal with Booth. In case the satisfactory deal with Booth did not go through, the parties where to be placed in statu quo by Gustin returning the check and Merrill returning the stock. That the satisfaction expressed by Gustin was with the deal with Booth as it had been represented to him by Merrill is made manifest by Merrill’s telegram of March 5, 1903: “ Sold horse, lower price, but think will be satisfactory you.”
Upon Merrill’s theory, this telegram should have contained only the first two words, since the fact of a sale was all that concerned Gustin. Why, then, should he have further informed Gustin that he had sold at a lower price, but one which he thought would be satisfactory to him ? The only reasonable answer to this question is that given in Mr. Gustin’s testimony — that the deal had been fully discussed by him and Merrill, who represented not only himself but Gustin as well in making the sale, and that the price had been agreed upon on the representations of Merrill that it was the highest price obtainable. The telegram recognizes Gustin’s interest, not only in the sale, but in the result of the sale, which is entirely consistent with Gustin’s claim that he had parted with his interest in his stock for a consideration based upon the price to be obtained for the property of the corporation, and is inconsistent with Merrill’s theory that Gustin had no interest whatever in the amount to be paid.
The only remaining written evidence, if it may be so designated, is the promissory note. This note is entirely in the handwriting of Merrill, and there is nothing to connect Gustin with it, except the oral testimony of Merrill. Merrill introduced the note in evidence as the very note he gave to Gustin in payment for his stock, and which Gustin returned to him when the arrangement of February 20, 1903, was made. He stated on cross-examination that there was one chance in a thousand that it might be a copy, and explained how he might have retained a copy and destroyed the original, but maintained that, to the best of his knowledge and belief, it was the original. It is apparent that if the original bill of sale, mutual agreement, and note were left, in the first instance at his counsel’s office, as claimed, obtained there for the purpose of making copies, taken away and the copies left, returned and the copies obtained for destruction, some one in the office must have known about the entire transaction. In view of the fact that complainant proved conclusively, as Merrill afterwards admitted, that the note was written upon a blank which was not in existence till after the sale of March 6, 1903, it is worthy of note that no one took the stand from his counsel’s office to corroborate his explanation of the possible destruction of the original. Certainly the circumstances surrounding this piece of evidence, as disclosed by the record, do not tend to strengthen defendant’s claim, but rather to cast doubt upon it. The testimony of Hamilton as to Gustin’s admission that he had disposed of or was about to dispose of his stock, and his statement üpon another occasion, showing a piece of paper, that he had got $4,000 out of it, is not very convincing, and is more than overcome by the testimony of Hebinger and Herbert Gustin as to Merrill’s admissions after the sale and by the documentary evidence above referred to. On the whole, we are satisfied that complainant proved by a clear preponderance of the evidence that he was the owner of 400 shares of stock on February 20, 1903, and that defendant Merrill obtained the same by fraudulent representations as to his agreement with Booth.
We agree with the circuit judge in the conclusion that the 300 shares of Bennett stock were purchased by Merrill with the money of the corporation; but we think this stock should be treated as treasury stock, and that the accounting should, therefore, be upon the basis of eleven-fifteenths of the stock being owned by Merrill and four-fifteenths by Gustin. In 1895, a resolution was adopted by the board of directors that until certain notes were paid the salaries of the editor, business manager, and others should not be increased, and an agreement to the same effect was signed by Merrill, Gustin, and the other directors. This resolution and agreement were never changed by any corporate action, and Mr. Merrill had no legal authority to increase his salary against Mr. Gustin’s protest. As the accounting was limited by the circuit judge to the period prior to October 29, 1901, we do not think it desirable to determine the respective shares of the parties in advance of a full accounting.
The decree of the circuit court is reversed, and the case remanded for further proceedings in accordance with this decree. The complainant will recover costs of both courts.
Grant, Montgomery, CÍstrander, and Hooker, ,JJ., concurred. | [
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Blair, J.
(after stating the facts). In my opinion, this affidavit was not sufficient to justify the issuance of the writ and the arrest of the relator thereunder. The Constitution of the State (article 6, § 26) provides that “ no warrant to search any place or to seize any person or things shall issue without describing them nor without probable cause, supported by oath or affirmation.” In Brown v. Kelley, 20 Mich. 27, this court had occasion to construe this provision of the Constitution as applied to a warrant issued by a justice of the peace upon an affidavit setting out the facts relied on in the following words:
“That heretofore, to wit, on the seventeenth day of September, 1866, he placed in the hands of Jacob L. Brown the sum of three hundred dollars for safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; .that the said'Brown instead of restoring to this deponent the said sum of money so intrusted to him, converted two hundred dollars of the same to his own use and now wholly refuses to return the same to this deponent.”
Chief Justice Campbell, writing the opinion of the court, says:
“The affidavit is clearly defective.. The statute requires it to set forth the facts and circumstances, within, the knowledge of the person making the affidavit, constituting the grounds of the application. There is not a single fact or circumstance alleged here within the plaintiff’s knowledge, tending to make out a case. The oath is to a mere conclusion of law. It does not show when or where or by whom any demand was made, or even that any demand was made at all upon Brown, or how he met the demand, if made. The necessity of. such a showing is made more apparent in this case, when the plaintiff showed the facts and circumstances on the trial negativing the truth of his conclusions. The facts to be stated in the affidavit must be given in the same way as on the stand, by a distinct averment of each fact upon knowledge, and the facts must be such as in law tend to make out the cause of complaint. It is not for the party to draw his own inferences. He must state matters which would justify others in drawing them. The rules heretofore laid down in this court have always required the facts themselves to appear upon knowledge. No other rule would preserve the constitutional right against warrants not based on probable cause, supported by oath or affirmation. Const, art. 6, § 26; Proctor v. Prout, 17 Mich. 473.”
In Sheridan v. Briggs, 53 Mich. 569, Mr. Justice Champlin, delivering the unanimous opinion of the court, says:
“ The principle deducible from these cases is that an affidavit wfyich is used as the basis of a writ which will de prive a person of his liberty, must not only set forth the facts and circumstances in detail, and not conclusions or inferences from facts, but they must be facts within the personal knowledge of the deponent.
“Applying these principles to the affidavit in question, it appears to be defective in that portion which contradicts the alleged representations; their falsity does not appear to be alleged upon the personal knowledge of the deponent, and the statements respecting the falsity of the representations are too indefinite to possess the quality of legal proof. If the deponent was called to the witness stand for the purpose of proving the falsity of the representations, it would not be competent for him to testify in the general, loose, and vague manner contained in his affidavit. Such testimony would not be admissible to establish the fact that the representations made were false. The affidavit upon which a person is held to bail must be of the same legal quality, as evidence, as would be required at the trial to establish the facts set up or relied on for cause of arrest.
“ The authorities referred to in plaintiff’s brief apply to cases of pleadings, and not to affidavits or examinations which form the basis of a writ or warrant to arrest or imprison a person. What would be quite sufficient in a pleading would, in. most instances, be entirely insufficient in an affidavit to hold to bail. The reason is obvious. In pleading,’ the evidence is not required to be set forth. But no arrest can be made except upon sworn evidence of facts.”
The affidavit in the case before us is substantially a declaration in an action of trespass on the case for alienating the affections of the affiant’s wife. While it is not essential that it should be stated in the affidavit in so many words that the facts relied upon are within the personal knowledge of the affiant, it is essential that facts and not conclusions should be stated, which are necessarily, or, at least, apparently, within the knowledge of the affiant. The most important fact attempted to be stated in this affidavit, the debauching of the affiant’s wife, is manifestly an inference of the affiant from facts, and circumstances not disclosed by him in the affidavit, since it is stated that “said actions and doings took place at the said village of Lawton and at other places in said county unknown to this deponent.” I do not think that the affidavit in the case now under consideration is as definite and positive as either of the affidavits considered in the cases above cited. See, also, Robinson v. Branch Circuit Judge, 142 Mich. 70.
The writ is granted, with costs.
Ostrander and Moore, JJ., concurred. Montgomery and Hooker, JJ., concurred in the result. | [
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Graves, C. J.
In October, , 1879, George O. Mahon filed his bill to foreclose a mortgage given by Daniel B. Hibbard, Jr., and Irene T. Hibbard, his wife, to said Mahon. Marshall D. Robinson was in possession under a contract to pur chase from the mortgagor and one Kane, but the latter had transferred his interest to Hibbard. The mortgage was given with Robinson’s assent. In October, 1878, Hibbard deeded .to his wife and transferred to her his interest in the contract, and in 1879 she assigned the contract to one Abbott and the petitioner Ketchum to indemnify them for being sureties for her husband in a replevin bond. This assignment was with Robinson’s assent and he made his payments to Abbott until about the time the foreclosure suit was instituted.
Hibbard and wife and Robinson and Abbott were joined as defendants in the foreclosure and each was personally served with process. But neither appeared and the bill was taken as confessed by all. The case proceeded regularly to-decree and sale and Sarah Mahon became the purchaser for the full amount due on the mortgage, and the sale was confirmed. A month later she conveyed to the petitioner and he proceeded to demand possession of Robinson, who-refused. Application was' then made for a writ of assistance and the defendant Robinson opposed it. The court however made the order and Robinson appealed.
The purchase by Sarah Mahon entitled her to possession as against Robinson and the petitioner as her grantee is equally entitled. As to all matters prior to the sale hestaiids for the purpose of having possession in the shoes of his grantor. The force of the proceeding remains as it was and is not impaired by the transfer from Mrs. Mahon to.the petitioner. The steps connected with, the demand 'of possession are not excepted to.
The respondent seeks to avoid the effect of the foreclosure-proceedings by setting up equities between him and other of the defendants prior to the sale and by connecting the-petitioner with them. We consider it- clear that such matters cannot be litigated in this proceeding, and we dismiss the appeal with costs.
The other Justices concurred. | [
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Campbell, J.
Complainant filed his bill against defendants, who are widow and heirs of his deceased brother, Wesley Shannon, whose estate has been closed by distribution, claiming that he has a ground of relief arising out of a contract made with decedent in 1872, that they should mutually support their mother, Christina Shannon. The bill sets up the allowance of an account in favor of complainant1 for such support by commissioners of the estate up to the time of its presentation, and his present application is for relief touching what has accrued since, and what may hereafter accrue.
Without going at large into the allegations of the bill, which was demurred to for want of equity, we have not been able to discover a.ny foundation for such a suit. The case is not one for specific performance, and there is no authority to decree payment from distributees by a creditor at large. Debts which are not secured on property must be enforced under the probate laws. We need not consider what remedy may exist in that form in the present condition of affairs. It is very certain that the present suit is anomalous and not maintainable.
The decree dismissing the bill must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
Where a case has been tried in justice’s court, and an appeal taken to the circuit, the jurisdiction of the latter is appellate. To enlarge the claim of the plaintiff or that of the defendant in the circuit court, would to that extent be original and not appellate jurisdiction.
The statute in relation to set-off in justice’s court provides that if the balance found due to the defendant exceed three hundred dollars, the justice shall set off so much of the defendant’s demand against the plaintiff’s debt as shall be sufficient to satisfy it, if requested to do so by the defendant, and shall render judgment for the defendant for his costs; but if tbe defendant shall not require such set-off, the justice shall render judgment of discontinuance against the plaintiff with costs to the defendants. § 5322.
In this case the balance found due the defendant did exceed three hundred dollars, and had the case been in justic’s court, one of two judgments must have been rendered, viz.: a judgment for the defendant for his costs, or a judgment of discontinuance against the plaintiff, with costs to defendant. On appeal no other or different form of judgment could be rendered on the main controversy, and the attempt of the circuit court to render judgment in favor of the defendant in this case for $500 was without authority. Nor can this court render any different judgment upon the finding, than the justice could have done. We cannot therefore render judgment in this court for $300 as requested.
The judgment must therefore be reversed with costs of ■this court.
The other Justices concurred. | [
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] |
Cooley, J.
In this action of replevin the right to a certain quantity of wheat and to flour manufactured therefrom comes in 'question.
From the evidence incorporated in the record it appears that' on the 16th day of January, 1880, the defendants with •some others were doing a merchant milling business in the •city of Grahd Bapids under the co-partnership name of Hibbard & Graff, in two mills known respectively as the •Crescent Mills and the Yalley City Mills. On that day Mr. Hibbard, one of the defendants, made an application to the cashier of the plaintiff for the loan to their firm of the sum of twenty thousand dollars on the firm note indorsed by L. H. Bandall and H. ~W. Hinsdale. The application was taken under advisement, and after consideration Mr. Hibbard was notified that the firm could have the desired loan provided that in addition to the proposed indorsements they, would give a warehouse receipt for eighteen thousand bushels of wheat. These terms were accepted, and on May 17, 1880, a note and warehouse receipt were given in the following terms:
“Grand Nap ids, Michigan, January 17, 1880.
“ $20,000.00.
“ May first after date we promise to pay to the order of L. H. Nandall and H. W. Hinsdale twenty thousand dollars, at the Merchants’ & Manufacturers’ National Bank of Detroit, value received, with interest at the rate of eight per cent, per annum after maturity. Having deposited with the Merchants’ & Manufacturers’ National Bank of Detroit as collateral security personal property as stated below, we hereby authorize the sale of said personal property at public or private sale, and with or without notice, on the non-performance of this promise. Warehouse receipt for 18,000 bushels No. 1 white Michigan and No. 2 winter wheat.
Hibbard & Graff.”
“ Endorsed: L. H. Nandall,
H. W. Hinsdale.
“Neceived, Grand Napids, Michigan, January 17, 1880, in store for account of the Merchants’ & Manufacturers’ National Bank of Detroit, Mich., eighteen thousand (18,000) bushels No. 1 white and 2 red winter wheat, to be delivered in wheat or its equivalent in flour upon return of this receipt properly endorsed, to be kept insured for account of whom it may concern. Hibbard & Graff.”
It further appears that at the date of these transactions, Hibbard & Graff were not only buying, storing, manufacturing, shipping, and selling wheat on their own account, but were also receiving into their mills wheat to be stored for others, for which they issued the customary warehouse receipt. At the time of the transaction with the plaintiff the firm had in store about 35,000 bushels of wheat of the kinds specified in the receipt issued to the plaintiff. The white and red wheat were kept separate in store, but were mixed for grinding in the proportion of one-half to two-thirds white to one-third to one-half red. The market value of the red was superior to that of the white. The firm constantly manufactured from the stock on hand until they failed in March, 1880. There was evidence tending to show that at that time there were outstanding receipts for more wheat than the firm had on hand, but besides the receipt of the plaintiff only three small receipts were proved, and no question is made in this suit between the holders of those and the plaintiff. When Hibbard & G-raff failed, one Philip M. Graff claimed the wheat and flour $ien in the mills under a chattel mortgage from the firm, but the Iona fides of that mortgage was submitted to the jury and their conclusion was against it. It therefore cuts no figure in this case on appeal. Plaintiff demanded the wheat under its receipt when the firm failed, and not obtaining it otherwise, sued out a writ of replevin, on which a part of the specified quantity of wheat was delivered and an equivalent in flour for the remainder.
Upon these facts the jury found the defendants to be the general owners of the wheat and flour replevied, and the* plaintiff to have a special property therein to the amount of $20,000. The value was found to be $21,322, and the defendants tools judgment for this sum less the amount of the plaintiff’s special property.
The jury reached this conclusion under instructions from 'the circuit judge that the receipt issued by Hibbard & Graff to the plaintiff constituted a valid pledge in the nature of a mortgage of the property described therein as security for the note to which it referred. The appellants deny the soundness of these instructions.
It is agreed on both sides that the receipt did not constitute a mortgage of the wheat, and the plaintiff made no attempt to sustain it as a mortgage. On the part of the defendants it was contended that it did not constitute a pledge; for possession is essential to a pledge, and of this wheat possession was neither given nor contemplated. The defendants do not deny that title may pass by the delivery of a warehouse receipt in pursuance of an actual sale, nor, as we understand it, do they dispute that when one is owner of property represented by a warehouse receipt or other instrument of similar nature, he may malee pledge of it and transfer constructive possession by delivering to the pledgee the instrument that represents his property. Meyerstein v. Barber L. R. 2 C. P. 38, 661; s. c. L. R. 4 H. L. 319; National Bank v. Dearborn 115 Mass. 219; Whitney v. Tibbitts 17 Wis. 359; Taylor v. Turner 87 Ill. 296. But in this case the plaintiff never had either title or actual possession of the property; it was not intended that the warehouse receipt should pass the title to the plaintiff. It is therefore contended that there was and could be in the case no constructiva possession except such as might be implied in any case in which an owner should undertake to pledge the property, and at the same time without delivery retain it in his own hands and under his own exclusive control.
The very able arguments in the case took a wide range, but it is not requisite that we follow them and examine them in detail in order to dispose of the case. Undisputed authorities bring the legal controversy within very narrow compass, and render general discussions needless. We have already said that it is conceded a warehouseman may transfer title to property in his warehouse by the delivery of the customary warehouse receipt. In such cases there is no constructive delivery of the property whereby to perfect the sale except such as is implied from the delivery of the receipt; and where the property represented is only part of a larger mass as was the ease here, there could not well be any other constructive delivery. But for the convenient transaction of the commerce of the country, it has been found necessary to recognize and sanction this method of transfer, and vast, quantities of grain are daily sold by means of such receipts. Gibson v. Stevens 8 How. 384; Cushing v. Breed 14 Allen 376; Broadwell v. Howard 77 Ill. 305; Gregory v. Wendell 40 Mich. 432. We are then to see whether a constructive transfer of possession that is recognized in the case of sale shall be held inoperative in case of an attempted pledge.
If a distinction is made in the cases it ought to be upon some ground that would seem reasonable in commercial circles, where men may naturally be expected to be familiar with the ordinary methods of doing business, but not with technical rules for the government of special cases. For business purposes rules should as far as possible be general, ■ for the very satisfactory reason that special exceptions not made upon obvious reasons are not likely to be understood or observed. And the special exception supposed to exist in this ease would be peculiarly liable to mislead if it were recognized.
If a merchant may buy grain in store and receive a transfer of title in a warehouse receipt, he would be very likely if he had occasion to receive grain in pledge, to suppose a similar receipt to be sufficient for that purpose. No reason would occur to him why it should be otherwise, and this because there would in fact be no reason except one purely technical depending on nice legal distinctions. When that is found to be the case any proposition to establish a distinction should be rejected, decisively and without hesitation ; for the laws of trade are made and exist for the protection and convenience of trade, and they should not tolerate rules which have the effect to border the chambers of commerce with legal pitfalls.
This was the view expressed by the Court of Appeals of Kentucky in Cochran v. Ripy 13 Bush 495, in which a warehouseman having power to pass the title to property ih ■store by a warehouse receipt was held competent to make a pledge in the same way. The same view was evidently taken by the Commission of Appeals of New York in Parshall v. Eggert 54 N. Y. 18, 21, though it was not deemed necessary to decide the case upon it. In that case a pledge was attempted precisely as was done here. Commissioner Johnson speaking for the court says of the receipt: “ The instrument now in controversy, executed by Eoche, [the warehouseman] declares the property mentioned in it to be held by him in his store for account of the plaintiffs, subject to their order, as security for his note given that day for $1450. In the absence of fraud, every instrument is to be construed so that it may have effect according to the intention of the parties, if that can be consistently with the rules of law. Had the property in question been delivered by Eoche to the plaintiffs on the terms expressed in this paper, it would have created a valid pledge. * * It may be considered as showing conclusively against Roche that the property was delivered by him to the plaintiffs, and redelivered by them to him to he held for them, according to the terms of the receipt.” This is good sense; for snrely there can be no substantial reason for requiring the-parties to go through two ceremonial deliveries of property the actual situation and custody of which it is not proposed to disturb.
Some stress was laid by the defendants upon the fact that, two hinds of wheat are mentioned in the receipt, and there is no specification of the quantity of each to be held. The circumstances explain this, for they show the two kinds were mixed in grinding, and it was evidently contemplated that flour rather than wheat should be held. In the absence of any specification of the quantity of each kind that was to be held, the legal construction we think would entitle the pledgee to an equal amount of each kind if it remained unmanufactured. The return of the officer shows that he-found no red wheat and but 3051 bushels of white wheat. For the remainder he took an equivalent in flour according-to the terms of the receipt.
To the elaborate argument made for the defence to show that there can be neither a sale nor a pledge of property without in some manner specially distinguishing it, we fully assent and we have no purpose to qualify or weaken the-authority of Anderson v. Brenneman 44 Mich. 198. The instrument in that case was not a warehouse receipt, and without the clause giving a lien would not, according to any mercantile custom, have passed a title. The instrument in this case is different; and unless the specification in it of two kinds of wheat renders it inoperative for want of definiteness, it must be sustained. For the reason above-given we think there is no legal difficulty on that score.
The judgment must be affirmed with costs.
Marston and Campbell, JJ. concurred.
Graves, C. J. I concur in the result. | [
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] |
Cooley, J.
Ford sued Bushor for a personal injury, and for carrying off and converting to his own use a buggy of which she claimed to be owner. The case made by her evidence was that Bushor had come into possession of her buggy under pretence of a trade with her husband; that she sued out a writ of replevin for it, and it was taken by the officer by virtue of the writ, and delivered to her after she had given the statutory bond; that while having it in her possession she seated herself in it, and Bushor came and ordered her out, and on her refusal to leave, had men to take it and draw her about in it through the streets of Detroit; that he afterwards had a horse harnessed to it and seated himself in it by her side and drove about against her remonstrance; that she was at the time pregnant, and the abuse she received at the hands of defendant caused a miscarriage resulting in permanent injury. She also showed that the replevin suit resulted in a judgment in her favor.
In defence Bushor was permitted to give evidence tending to show that plaintiff assented to her husband’s trade of the buggy with him; and he claimed that this assent estopped her from disputing the husband’s authority. Also that the officer who served the writ of replevin did not deliver the buggy to plaintiff, but left it with one Blanchard, from whom defendant replevied it; and that it was after this second writ of replevin that defendant ordered plaintiff out of the buggy and took possession. In submitting his charge to the jury the judge instructed them that if the plaintiff knew of the trade between her husband and Bushor at the time it was made, and assented to it, or led Bushor by her expressions or conduct to believe that the buggy was her husband’s, she was bound by the action of her husband ; and if under such circumstances she .got into the buggy of her own accord, and had an opportunity to get out, but refused, and remained therein against the request of the defendant, then she cannot recover at all for any damage sustained, unless Bushor caused the damage wilfully, intentionally or negligently.
All these rulings were erroneous. They were made upon the baseless assumption that the defendant in a replevin suit, after the plaintiff has given bond, and while the suit is pending, may contest the plaintiff’s right to the possession of the property. The statute refutes this assumption ; for it awards the possession to the plaintiff in the suit on the sole condition that the bond is given. Morris v. De Witt 5 Wend. 71; Knott v. People 83 Ill. 532. In Clark v. West 23 Mich. 242, the plaintiff’s right was held to continue after judgment for defendant and while the case was pending in the circuit court on certiorari; for the bond must stand to the defendant in the place of the property until the suit is finally determined. If it were otherwise there might be two or more suits pending at the same time between the same parties to try the same question; and the requirement of a bond would be absurd.
The judgment obtained by the defendant must be reversed and the cause remanded for a new trial. The plaintiff will recover the costs of this Court, including ten dollars for continuance at the last term.
Graves, O. J. and Campbell, J. concurred. | [
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Campbell, J.
In this case the probate court for theeounty of Washtenaw made an allowance for the support of' the widow of a deceased testator pending the settlement of' his estate, she being the only person properly to be deemed as his family. The circuit court held she was not entitled to any such support, because she had provision made by the will.
The estate was a considerable one, with several thousand dollars in personalty as well as lands, and the only bequest to the wife was in these words: “ After the payment of all my debts, funeral expenses; and the expenses of the settlement of my estate, I give, devise and bequeath to my present wife, Lucinda Moore, her heirs and assigns, one-third of the remainder of my estate, both real and personal.”
By section 4350 of the Compiled Laws the probate court is authorized to make such reasonable allowance as may be-judged necessary for the expenses of maintenance of the widow and minor children during the settlement of the estate, but never for a longer period than until their shares are assigned to them.
This provision is as necessary where legacies are left as; where they are not, and the statute was passed to avoid the- cruelty' of leaving a family exposed to want during the interval of settlement. The statute is full and in no way doubtful, and the allowance was proper.
It is not clear to us that such an order is appealable. In Walker v. Hull 35 Mich. 488 it was suggested that there is a necessary limit to appeals, and that if an appeal will lie from the provisional and temporary arrangements which are designed to expedite or assist the settlement of estates, it might be difficult if not impossible to settle them at all within any reasonable time. The immediate object of this allowance is to provide sustenance for the family during the settlement of the estate, for the reason that the necessities of support will not allow the delay of such provisions, because they are immediate. If an appeal will lie from such an allowance, it may be delayed at. the circuit and removed to' this court, so as to keep the family helpless during the very time the statute attempts to supply their wants. It is a. very serious question whether it was designed that this action of the probate court, within its lawful discretion,, should be thus frustrated; and whatever remedy, if any, may exist to rectify any unlawful excess of authority in such matters, it is worthy of consideration whether it is in the-shape of an appeal under the probate statutes.
The judgment of the circuit court must be reversed and that of the probate court affirmed, with costs against George W. Moore, the appellant.
Marston and Cooley, JJ. concurred. | [
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Cooley, J.
The purpose of the original bill was to establish the right of complainant’to certain undivided interests in pine lands, in which defendant Fletcher also had interests, and to have partition made. The complainant having subsequently made an assignment for the benefit of its creditors, a supplemental bill was filed by the assignees having in view the same general ob ject.
The history of the controversy, as disclosed by the pleadings and accompanying exhibits, is substantially as follows r
In the summer of 1872, George Prentiss, then resident in Detroit, entered into negotiations with George N. Fletcher of the same city for the purchase of certain pine lands. owned by Fletcher in common with James Campbell, of Boston. The negotiations resulted in obtaining from Fletcher an optional contract, bearing date August 1, 1872, of which the following is a copy:
“ It is .agreed by and between Geo. N. Fletcher of the first part, and George Prentiss of the second part, whereby the party of the first part agrees to sell unto the party of the second part all the pine lands owned by him in town 32 north, range 3 and 4 east, in the State of Michigan, at eleven dollars per acre, it being the undivided half of some eight thousand acres, and also the other undivided half owned by James Campbell, of Boston, Mass., for nine dollars per acre, or for such sum as said Campbell and said Prentiss shall agree upon, and it is at the option of said Prentiss to take all or none, or only Campbell’s half, and if he takes only Campbell’s half, then the said party of the first part agrees to hold in common and to sell his interest as may be desired, by stumpage or otherwise, to said Prentiss or others, as shall seem best to both parties; the said Prentiss to have three months to decide if he takes said lands or not, and in consideration of the above-the said Prentiss gives his note for $6500, sixty days, in part payment of said Campbell’s half, and the balance to be paid within six months from date-, and if he does not take said lands then said Fletcher is to give said Prentiss a contract to lumber on said lands the coming winter at $2.00 for Norway and $3.00 for white pine, payable first of June next; the- $6500, with interest from time of payment to June 1st, 1873, to be in payment for said stumpage. If the said Prentiss takes the said Fletcher’s half, time to be given for payment, with interest at 7 per cent., and in case any unforeseen accident shall hinder the parties from getting off the coming winter sufficient stumpage to meet said note, then said Fletcher agrees that "he will pay to said Prentiss the difference on or before the 1st of June, 1873, with interest.”
This paper was signed in duplicate. It will appear from its terms that Fletcher assumed to act for Campbell as agent, but that negotiations by Prentiss directly with Campbell were left to his option. Accordingly Prentiss went to Boston and saw Campbell, and without apprising him of the negotiations already had with Fletcher, secured from him a new optional contract for his undivided one-half interest. This is in the form of a letter addressed by Campbell to Prentiss, of the date of August 9,1872, and is as follows:
“ Dear Sir : In consideration of $1.00 to me in hand paid by you, and $6500, to be paid by you to Geo. N. Fletcher of Detroit, Mich., for me, to apply ás the first payment on this purchase, by August 13, 1872, I hereby sell and assign to you my undivided one-half interest in all the pine land owned by me and George N. Fletcher in town 32 north, range 3 and 4 east, in the State of Michigan, being my entire interest in said lands, estimated at some 3000 acres more or less, the price to be seven and seventy-five one-hundredths dollars ($7.75) per acre; payments to be $6500 down — to George N. Fletcher as above — and the balance in one, two and three years from date of your acceptance of this proposition — equal annual payments— with interest at seven per cent., you to have three months from this date to examine said lands and accept or reject this proposition, and in case you reject it, the money advanced by you is to be either taken out in stumpage or the money refunded to you by June 1, 1873, as agreed by you with George N. Fletcher.”
The prominent differences between this agreement and that which Fletcher had given, so far as concerns the interest of Campbell, are seen to be that in this the price named is one dollar and twenty-five cents less per acre, and the quantity named is a thousand acres less. In each the quantity is given as an estimate. No written acceptance was ever made of either of the optional propositions contained in the contract bearing date August 1st, and Prentiss denied that there was ever any oral acceptance, or that he ever made any .purchase of either interest under it. On November 5, 1872, Prentiss caused to be delivered to Campbell a note signed by himself in the following terms:
“ Dear Sir : I beg to notify you that I this day accept your offer of August 9, 1872, as to certain pine lands in Michigan, and that I have paid to Geo. N. Fletcher the sum of six thousand five hundred dollars as stipulated in said offer.”
Before this acceptance was received, and very soon after the date of the offer it refers to, Campbell, learning of the contract of August 1st, and of its better terms, addressed a letter to Prentiss, who was then .in Maine, notifying him that he could not abide by the proposition of August 9th, and desired that it should be returned to him. Prentiss, in response to this, on his return from Maine called upon Campbell, who repeated his request for a return of his proposition, but without avail. Campbell also wrote Fletcher to see Prentiss and have the agreement of August 9th can-celled, and he repeatedly from that time on, to both Prentiss .and Fletcher, protested against it as wrong and as having been obtained from him by deception. Prentiss, however, insisted upon it, and the matter remained unsettled until the spring of 1873. Meantime Prentiss had been cutting timber upon the land, and was naturally anxious to perfect his title. Campbell on the other hand was in need of money, and negotiations were opened anew which resulted in Fletcher giving Prentiss another contract in the following terms, dated April 14, 1873 :
“ In consideration of two thousand dollars this day paid me by George Prentiss to apply on the 2100 odd acres of land purchased by him of James Campbell of Boston, I hereby agree as follows:
“ The said Prentiss shall have the six thousand and some •odd acres of pine land owned by myself and others, in town 32 north, range 3 and 4 east, State of Michigan, as shown- by the minutes and estimates of the same made in 1872 by John Keating and Frank Dyer of Alpena, Mich., for said parties, on the following terms:
“ About twenty-one hundred acres, Campbell’s lands, at seven and seventy-five hundredths ($7.75) per acre, and about one thousand acres, White’s lands, at same prices, both purchases dating from November 4, 1872. The Campbell tract, 2100 acres, to be paid for after deducting-the six thousand five hundred dollars paid last fall, as follows: Two thousand cash — paid to-day* — note for' three months for one thousand dollars, and balance October 15, 1874, with interest at seven per cent.
“ The White tract — 1000 acres — to be paid for in one, two and three years from date of purchase, with interest at seven per cent.
“ The remaining three thousand odd acres — my land— said Prentiss is to have at ten dollars fifty cents per acre, to be paid for in ten years, or as fast as the timber is cut off. with interest at seven per cent, per annum, annually. All of the above to be on land contracts. Each lot is to be conveyed in separate parcels or on separate papers, so the different lots of land may be kept separate, and enable said Prentiss to cut my 3000 last, if he so elects. In case I am unable to get Mr. White to put in his land at less than nine dollars per acre — it being understood that it will go in at either nine or seven dollars per acre — in that event I agree to put in my 3000 acres at ten dollars, instead of ten dollars per acre. In case I am unable to get said Campbell & White to agree to the foregoing, I am at liberty to return the two thousand dollars this day paid me-by said Prentiss, within ten days from date, and be released from this agreement.
“ The purchase of my three thousand acres to date from November 4, 1872.”
Without expressly recognizing this contract the original bill avers that Prentiss, in making his purchase of Campbell, relied entirely on the representations of Eletcher respecting quantities; that Campbell represented the amount owned by him to be about 3000 acres; “ that on or about the 14th day of April, 1873, said Eletcher stated to said Prentiss that said Campbell did not in fact own all of the lands so represented by him and said Fletcher as owned by him, said Campbell, but that one William White, then of Boston aforesaid, but since deceased, was in fact at and prior to-August 1, 1872, and still was the owner of about 1000 acres thereof in common with said Fletcher and Campbell, and said Fletcher did then agree with said George Prentiss in consideration of the premises and of $2000 then paid by him to said Fletcher, that he, said George Prentiss, should have said White’s lands aforesaid at $7.75 per acre, the purchase thereof to date from November 4, 1872, and that he. said Fletcher, would procure a written contract from said1 White therefor at that price, or return to said George Prentiss the said sum of $2000, within ten days therefrom, no part of which sum was ever returned, and which sum, together with the note of said George Prentiss to said Fletcher for $1000, bearing date April 14, 1S73, and payable three months after date, was by agreement to apply on the said purchase from said Campbell and said White; that said Prentiss had no knowledge of the amount of land owned by said White, or as to his title to the same, and in this relied entirely upon the representations so made by said Fletcher.” It then avers that subsequently, on or about May 1, 1S73, Fletcher modified his statement as to the amount of the Campbell and White lands, and put the amount at 2S82 acres, but without saying how much was owned by Campbell and how much by White; that Prentiss on May 1, 1873, gave to Fletcher as agent for White and Campbell his notes for $8020, besides interest, towards payment ou the purchases from them, all of which were after-wards paid, and that he has paid to Fletcher in all for White and Campbell on such purchases $17,520, besides interest.
Fletcher says of this last mentioned contract that it was drawn by Prentiss himself, who was anxious to get from Campbell some recognition of the purchase Prentiss was claiming. However this may be, the bill avoids recognizing it as in any way abridging the rights of Prentiss, and it is treated as important only as it binds Fletcher. As the question how much land Campbell owned is one of the principal subjects of controversy, it should bo stated in this connection that Campbell testifies that he told Prentiss when he gave him the option of August 9,1872, that there was not so much as 3000 acres; but Prentiss nevertheless gave that as the estimated quantity in wilting out the oiler.
On May 1, 1873, Fletcher executed another paper, supplementary to that of April 14, the provisions of which, so far as they are now material, are as follows :
“ It is stipulated and agreed that the amount of land to be sold and conveyed under and by virtue of the contract hereto annexed, dated April 14, 1873, is 5764 acres, being the lands specified in the memorandum hereto attached, examined by Messrs. Keating & Dyer, excepting from said memorandum the undivided half of some 1300 acres therein included, belonging to William Griffin, known as the Oldfield lands. There is also included in said contract, to make up the amount of 5764 acres, [six several parcels described] it being understood that an-undivided one-half of the above 5764 acres are to be treated as the White & Campbell lands mentioned in the foregoing contracts, and that the other half are to be treated as thelands of said George N. Fletcher.” “Said Fletcher also agrees to give to said Prentiss, in consideration of the foregoing agreements, the refusal for two years to take all of his, said Fletcher’s, right to the lake front easterly of his, said Prentiss’, boom in Alpena, for $1000, or take that and the river front for the sum of $2500, and if taken, contracts to date from May 1, 1874.”
It was further provided by this paper that Keating & Dyer were to examine and report upon the lands put in to make the quantity 5764 acres, and they proceeded to do so and made a report in writing. Fletcher testifies that Prentiss repeatedly acknowledged the purchase of his lands, but Prentiss denies this, and says he never agreed to buy them. This being in dispute Fletcher, in the spring of 1876, filed his bill against Prentiss to compel the latter specifically, to perform the alleged contracts of purchase. Prentiss answered, denying expressly that he ever elected or agreed to purchase the interest of Fletcher in the said lands or any part thereof; and Fletcher thereupon discontinued his suit, replevined a large quantity of logs cut upon the lands, and commenced lumbering upon them himself. The Alpena Lumber Company, which meantime had succeeded to the rights of Prentiss, then filed their bill,against Fletcher and procured an injunction restraining him from proceeding with the replevin suit. This litigation led to the parties entering into a compromise contract, which bears date September 13, 1876. Previous to making it the Alpena Lumber Company had contracted with Francis M. Brown, the heir at law of White, and with the administrator upon his estate, for the purchase of his undivided interest at $7.75 per acre, and also with William Griffin of Troy, N. Y., for the purchase of his undivided interest in land “ supposed to be six hundred and forty acres, but the actual quantity to be ascertained,” owned by himself and Fletcher in township 32 north, ranges 3 and 4 east. Previous to making it also Campbell had conveyed his interests to Fletcher; as he says “ to enable him to carry out his contract with Prentiss.”
In the compromise agreement Loren Prentiss and Perry Prentiss appear as trustees for the lumber company, but no question in regard to their trust is made, and it is not necessary to explain it. The agreement is signed by them, by the lumber company and by Fletcher, and is as follows :
“Memorandum of agreement made this thirteenth day of September, 1876, by and between George N. Fletcher, of Detroit, Michigan, of the first part, aud Loren Prentiss and Perry Prentiss, as trustees, and the Alpena Lumber Company, parties of the second part, witnesseth :
That whereas the said Fletcher is the sole owner of certain pine land situated in township thirty-two (32) north, of ranges three (3) and four (4) east, in the State of'Michigan, and is also the owner in common with James Campbell and William White and William Griffin, of certain other lands in said towns and ranges.
And, whereas, the said Loren and Perry Prentiss, as such trustees, are the owners of the rights of said Campbell, White and Griffin in and to all the Campbell, White and Griffin lands, so called.
And, whereas, the said second parties and George Prentiss have caused to be cut from off a portion of such lands as owned solely by said Fletcher, and also from off a portion of the other lands above named the pine timber therefrom.
A partition of such lands so held in common is desired by the parties, and it is therefore agreed that a partition of such lands be made by three disinterested persons, one to be chosen by said first party and one by said second parties, and the two so chosen to elect the third.
That in making such partition, the quantity and quality of the timber and the location of the land is relatively considered.
That the lands so cut upon and over by George Prentiss- or said second parties or any persons for them, be set off to-the trustees at their value estimated, with the timber heretofore standing, and as if the same were now thereon, as a part of their share of such lands.
That said Fletcher convey to said trustees all of the lands so owned by him solely which have been cut over or upon? by George Prentiss or said second parties.
That in exchange for the same, the said trustees are to-convey to him, said Fletcher, out of the lands which may be set off to them as aforesaid, lands of equal value,, quality, quantity and location considered, to those of said' Fletcher so cut over as aforesaid, estimated with the timber standing thereon, and as if the same had not been cut over. The persons so appointed to make said partition to determine and designate such lands, also such partition and division to be made at once, and the parties are to release- and convey to each other the lands set off to each respectively.
The said Alpena Lumber Company also agrees to purchase of said Fletcher what is known and called the “ lake front,” being in the front of and adjoining the mill property of said company, and also in front of Water street, extended' in the city of Alpena, and pay him therefor the sum of one thousand dollars in cash, and said company also agrees to-pay said Fletcher in cash the sum of six hundred dollars in full settlement of certain harbor dues, claimed to be due-to the “ Alpena Harbor Improvement Company,” from said lumber company.
Said Lumber Company and its successors or assigns in the ownership of the mill property are also to have a right' of way over what is called “ Water street” extended in said -city to said “ lake front,” and are to keep that portion of said-so-called street which may be used by it, in good, sanitary and clean condition.
Said Fletcher is to execute and deliver to said Lumber-Company the necessary conveyance of said lake front upon the payment of said one thousand dollars, reserving, however, the right to treat with the United States Government-for any river front for dock or light-house purposes, with such depth from the river front as it may require, and to receive all compensation made therefor.
All suits commenced by either of said parties against the-other, and the suit of said Fletcher against George Prentiss, are to be discontinued, and any money or property taken in the replevin suits now in the hands or possession of said Fletcher, which belongs to said second parties, to be returned or applied first to the payment of said sum of sixteen hundred dollars for said lake front and harbor dues, and, ¡secondly, upon whatever may be due said#Fletcher upon the mill property mortgage, and the balance to be returned to said Lumber Company.
A certain drain, extending from the “Fletcher House” .across the property of said Lumber Company is owned and is to be kept up by the parties in common.
Said Fletcher is to transfer and assign to said Lumber Company and does hereby transfer any and all claims which he may have against George Prentiss or other parties for any of the timber cut as aforesaid and hereby releases the said Company from any and all such claims, in consideration of such partition and division made.”
The arbitrators were selected to carry.this agreement into «effect, and the parties stipulated that they should be empowered “ to determine and fix the value of the saw logs belonging to said company taken by said Fletcher in his replevin suittheir decision to be binding and final. It was also .stipulated that “ the estimate of timber and quality of same on these lands, made by Dyer & Keating in 1873, shall be the basis upon which such partition and exchange of land shall be made as far as it goes.” Also that the logs taken by Fletcher in his replevin suit were supposed to be 29,235 feet of Norway, and 268,720 feet of white pine. On October 4, 1876, the Lumber Company filed with the arbitrators .a paper in which they made claim to the undivided half of .all the Griffin lands, of which they gave a schedule; to the whole of the lands said to stand in the name of James Campbell, of which they also gave a schedule embracing 819 acres, and enough from those standing in the name of Fletcher, White and Campbell to make the quantity 2432.19 acres. Also whatever interest James Campbell had August *1, 1872, in certain'other described lands; “said Fletcher «claiming that said James Campbell owned a one-fourth interest in common in the same ; the actual amount of his interest to be ascertained.” This claim was not assented to by Fletcher, who insisted that the Lumber Company was only entitled to the actual interest of White and Campbell, which he claimed was an undivided one-half interest in the Campbell lands, and the Fletcher-, White and Campbell lands.
The arbitrators did not proceed to make an award as was contemplated, and although they made a report a long time afterwards, which the circuit judge substantially followed in his decree, it is conceded on both sides that the attempt at an arbitration was abortive. On October 18, 1876, the Alpena Lumber Company filed the original bill in this cause. The bill sets forth the Fletcher optional contract of August 1,1872; the Campbell optional contract of August 9, 1S72 ; the Prentiss acceptance of the Campbell optional contract; the subsequent Fletcher agreements of April 14r 1873, and May 1, 1873; the contract with White’s heir and administrator and the compromise agreement of September 13, 1876: it makes claim under these several agreements- and papers to an undivided one-half of all the lands owned by Fletcher alone, or by Campbell, or by Fletcher, White and Campbell, of which it gives separate schedules; it alleges that there are of these, as near as complainant can ascertain, 5022.21 acres, or deducting certain lands-standing in the name of Thomas Campbell, 1572.93 acres, of which Campbell and White owmed at least 2138 acres, and of how much more complainant cannot tell, and that complainant has become equitable owner of the same ; .and it prays for an ascertainment of the quantity to which complainant is entitled, and for a partition. To this bill Campbell and the representatives of the White estate were made parties defendant.
Fletcher answered this bill briefly, admitting the several contracts; averring that the optional contract of August 9, 1872, was obtained from Campbell “ by some unfair representations ; ” “ that the said George Prentiss and the said complainant and its so-called trustees repudiated so much of said contracts as refers to the purchase of the lands agreed to be sold belonging solely to this defendant, and until within the last six months this defendant supposed and believed the lands owned solely by himself were sold to said George Prentiss also under said contracts;” that “the quantity of lands proposed to be sold under said contracts was owned by said Campbell, White and this defendant, but the quantity owned by said Campbell and White did riot equal and was never represented by this defendant as one-half of the whole of said lands; that as the said complainant repudiates as did’ the trustees of said George Prentiss the sale of the lands so owned solely by this defendant, this defendant objects to this court, for the purpose prayed for in said bill, selecting out of this defendant’s lands sufficient to make 4up the supposed quantity claimed to be owned by said Campbell and White.” He expresses a willingness to abide by the compromise contract of September 13, 1876, and to have partition made with reference thereto.
Answer was also filed by the representatives of Brown, which it is not important to summarize. Campbell, liavingconveyed to Fletcher, did not answer.
On November 18, 1879,after a large, amount of proofs had been taken, Jesse P. Bishop and John G. Beekman, assignees of the Alpena Lumber Company, filed their original bill in the nature of a bill of review and supplement. The bill alleges that Fletcher, on or about August 1, 1872, represented that James Campbell was owner in common with him of about four thousand acres of pine lands’ in certain townships of Alpena county, Michigan, being the undivided half of about eight thousand acres; that Fletcher was the agent of Campbell to negotiate for the sale thereof; that these constituted all the lands owned by Fletcher in the townships named; that the optional contracts of August 1, 1872, and August 9, 1872, were given as stated in the original bill, and the latter accepted; that.' Prentiss had, no knowledge of the quantity of the lands, and relied upon the representations of Fletcher; that from representations made "by Fletcher April 14, 1873, Prentiss for the first time learned that William White had an interest in the lands of about one thousand acres; that from abstracts procured in February, 1876, and from other information since then obtained, it is claimed that the Campbell and White interest is at least 2400 acres; that on such lands payments, have been made aggregating $17,520, and taxes thereon, amounting to $1133.97, which amount should be applied on said contract for said undivided half of said lands; and that complainants are ready and willing to pay the balance. The bill prays that complainants may be decreed to be owners of the lands claimed by complainant in the original bill; and that partition be made. It is charged in this bill that since the ■filing of the original bill Fletcher has cut and removed from the lands an amount of timber greatly in excess of his share, and that he has also sold stumpage to others, and it prays an accounting in respect thereto. The compromise agreement of September 13, 1876, is not expressly set up, but must be considered embraced in the adoption of the allegations of .the original bill.
The answer of Fletcher admits the several contracts; alleges that the optional contract of August 9, 1872, was procured by misrepresentation; declares that neither Campbell nor his assigns repudiated the purchase of Fletcher’s «ole half until long after the Prentiss-Campbell contract was made; declares that the quantity of lands proposed to be sold by him under his negotiations and contracts was owned by 'Campbell, White and himself jointly, but that Campbell and White did not own an undivided half, and that he never so represented to Prentiss or to the Lumber Company; “ that one-half of all said lands were simply treated and designated as the Campbell and White interest for the sole purpose of fixing and establishing a price for which an undivided one-half of all of said lands were to be sold; ” the other half to be treated as his sole lands and sold at a greater price and on ■different terms; that said Prentiss and the Lumber Company had actual notice from both Fletcher and Campbell that the Campbell and White interest- was much less than an undivided half; declares a willingness to abide by the compromise contract; denies that Campbell and White were ever owners to the amount of 2400 acres, and avers that their interest did not exceed 1600 acres; denies sales of stumpage and disregard of complainants’ rights in the timber; asserts that certain schedules attached to his answer contain a true statement of the lands owned by Campbell, "White, Fletcher and Griffin, either sole or in common, and of the interests of each; avers a willingness to convey the Campbell lands to the complainant, and declares that a conveyance by the complainants and the Lumber Company to him of all the Campbell and "White lands not cut over by them would be inadequate to reimburse him for the lumber cut and removed from his own lands by them, and would leave several thousand dollars due him. A cross-bill had been previously filed by Fletcher, and this witli the answer to the original bill is made a part of this answer, but it is not deemed necessary to refer to the cross-bill further.
Upon these pleadings and upon voluminous testimony the case went to a hearing, and a decree was made which was favorable to the interests of Fletcher. This decree in the main is based upon a report or award made by the arbitrators under the compromise agreement of September 13, 1876. This was made out of time, and no one pretends that it had any validity whatever. The decree based upon it is therefore erroneous, and is conceded to be so.
It remains to be seen what relief could have been given under the facts disclosed.
The record, when we consider how few parties were concerned in the successive contracts, presents extraordinary complications, and, it is difficult to determine which party is chargeable with most inconsistent and diverse claims. It is greatly to be regretted that the arbitrators chosen to settle the whole controversy did not proceed to do so as was contemplated; Tor they unquestionably constituted a tribunal more competent to do complete justice, unembarrassed by technical rules and by inconsistent claims, than any court can possibly be. But the arbitration having failed, it becomes necessary to consider the several claims made by complainants, and to determine how far under the peculiar facts they can be recognized and upheld.
I. The optional contract, given by Fletcher August 1, 1872, is set up by complainants as constituting a binding admission operating as an estoppel on bis part as to the number of acres of which Campbell was owner of an undivided half; and it is said that as George Prentiss entered upon his subsequent negotiations in reliance upon this admission, Fletcher is not now to be heard to deny that Campbell owned the quantity stated. There would be some force to this if Fletcher’s offer had been accepted, but complainants deny that it ever was. The action that was contemplated by the admission was therefore never had. Prentiss elected to deal directly with Campbell, and to decline to purchase from Fletcher, and any admission made by Fletcher in his offer-can no more bind him conclusively afterwards than if it had been made casually in oral conversation. Prentiss cannot ■take advantage of the offer while expressly denying that he claims anything under it. Morever, the written offer of Campbell and its acceptance show unmistakably that Prentiss did not rely upon Fletcher’s admission of quantity, for what he purchased of Campbell was not the half of eight thousand acres, but “ an interest estimated at some 3000 acres, more or less.”
II. Under the optional contract of August 9,1872, accepted by Prentiss, nothing could be claimed but an undivided half of such lands as Campbell was owner of an interest in, to that extent, in the townships designated. It seems to be conceded now that he did not own the quantity specified— three thousand acres; hut there was nothing- in the negotiations so fai’, to obligate Fletcher to supply any deficiency.
III. The contract of April 14-, 1873, and the supplementary contract of May 1, 1873, complainants repudiate, so far as they purport to be contracts of sale by Fletcher, though they claim the right to have the benefit of them as estoppels against Fletcher in respect to the quantity of the White and Campbell lands. If these papers purported to be nothing but contracts .of sale of Fletcher’s interest, the claim set up by complainants would be futile; they cannot repudiate a contract and at the same time have the benefit of it; they can no more set up an estoppel under such circumstances than they can rely upon the promises while withholding the consideration.
But a paper rejected as a contract may nevertheless contain important admissions; and these in respect to disputed facts may be very convincing though in making them the party may have liad in view an object which was not accomplished. If they were plainly made as admissions of fact, they may be given such weight as they appear to deserve; and the circumstances attending them will be examined for any light they may throw on the deliberation with which the admissions were .made. A statement in an abortive contract may be as convincing of a fact as any other; and there is no reason why it should not be if it was intelligently and deliberately made. If it was made by way of concession and compromise, it may oil the other hand be entitled to no weight whatever.
The contracts of April 14 and May 1, 1878, purported to be something more than contracts of sale by Fletcher to Prentiss. They recited the Campbell and White purchases also; they specified the terms' of payment, and the last of the two provided that it was “understood that an undivided one-half of the above 5764 acres are to be treated as the White and Campbell lands mentioned in the foregoing contract;” and Fletcher proceeded to accept payment therefor on behalf of these parties. Now there is reason to believe from what appears in the oral proofs that the actual interest of Campbell and White was less than the quantity here expressed; and it is shown that the record title did not exhibit the actual state of the equities. However this may be, if Fletcher, as agent, dealt with this quantity of land as being the land of his principals, with a party who supposed it to be so, and from whom payment was received for it, his repudiation of the representation afterwards ought not.to be suffered if the rules of law will permit of his being held to it.
But the compromise agreement may also be important for its admissions. Referring to that agreement we find that it does not purport to change rights; it merely provides a mode whereby they may be defined^ and apportioned. But that contract expressly declares that Fletcher is sole owner of some of the lands; and the agreement for partition and adjustment of accounts is made upon the basis of that fact conceded. Whatever, therefore, up to that time, may have been the legal rights and equities of the parties respectively, this must put an end to all claim on the part of complainant Beekman that he is entitled to an undivided half of all the lands, including those standing in the name of Fletcher alone. And as this agreement gives no lists, and points out no method whereby it can be determined what lands are treated as the lands of complainants, we have nothing to guide us but the record title. The amount of land which stood .in the name'of Campbell is shown to be 819 acres. The Fletcher, White and Campbell lands -were 2164-fyv acres. Of all these complainant is entitled to one-half, equivalent to 1486 fW acres. Prentiss paid $17,520, for which Fletcher should account. This, at ■$7.75 per acre, would pay for 2260.64 acres, and complain ant ought to receive this amount'of land at least, because for this he has paid to a party acting in the double capacity of owner and agent for other owners. But we do not see how any lands are to be set off to complainant on any facts appearing in this record. There is no written contract whereby complainant has become entitled to receive from Fletcher a conveyance of any particular parcels of his lands to make up the deficiency, and no method agreed upon except in the compromise contract whereby it can be determined what parcels of Fletcher’s lands shall be selected out of the whole quantity owned by him as the parcels on which he is to be deemed to have accepted payment. We have then, in effect, a land contract which is so far imperfect that it neither describes a portion of the lands sold, nor points out any method whereby they are to be identified. Such a contract is fatally defective under the statute of frauds.
Neither party asks to have the compromise contract enforced, but both treat it as having failed of its purpose and become ineffectual. Decree in this case will be made on that assumption. Complainant is entitled to have partition to the extent of the 1486 ^$y acres, and to have Fletcher account for the sum received by him over and above what was required to pay for this quantity of land. Each party is also entitled to an accounting in respect to the timber cut by the parties respectively on the lands jointly owned or owned by the other. Eor the purposes of these accountings there must be a reference, unless the parties agree upon some method of dispensing with it. Prentiss and the complainant claim to have paid taxes for which Fletcher is justly accountable, and these, so far as they appear to be proper charges against Fletcher, can also be brought into the accounting.
The decree appealed from must be reversed with costs of this court, and the cause remanded. The costs of the circuit-court will be left to abide the final result.
The other Justices concurred. | [
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] |
Cooley, J.
Action of ejectment. The plaintiff had' judgment in the court below.
The plaintiff was one of the heirs at law of Frederic Diekison, deceased, and he claims the lands in dispute under-partition proceedings in the probate court, whereby they were set off to him in severalty. The seizin of Frederic Diekison, his death, and the descent of the title to the-plaintiff and others, are not disputed, but the proceedings in partition are contested as not being in compliance with the-statute. The defect which is particularly pointed out is the want of a decree of the probate court assigning the residue of Frederic Dickison’s estate to the heirs after administration and before making partition.
The finding of facts shows that an administrator was duly appointed on the estate of Frederic Diekison, and that he administered fully and was regularly discharged November 6, 1871. There should then have been under the statute— Comp. L. § 4496 — an assignment of the remaining estate to-the persons entitled; and in Campau v. Campau 19 Mich. 116, it was said that this assignment was a prerequisite to a partition of the lands in the probate court. Where, however, all demands against the estate are satisfied, as was the case-here, the assignment is a matter of course and a mere formality, which it is the duty of the court to make and which, nobody can contest. In the absence of any showing on the-subject, if the probate court afterwards assumed that such assignment was made, much might be said in favor of a presumption of law that the formal decree had been entered but it is unnecessary to consider the point in this case. In. the petition for a partition the existence of such a decree is- expressly affirmed, and so it is in the warrant issued upon that petition. It is also expressly found by the circuit judge in this case, as a matter of fact, that such a decree was made; and though the proofs are not as satisfactory as would be desirable, it cannot be said there was an entire absence of evidence on the subject. The finding must therefore be accepted as conclusive.
The defendant claimed paramount title under tax sales, and the validity of these comes next under review They were made for the taxes of the years 1871, 1872, 1873 and 1871.
The tax sale for the year 1871 is supposed to be invalid, because the assessment was made to “Dickison estate,” instead of the heirs at law by name. Ve think not. The estate was at that time undivided, and the statute — Comp. L. § 976 — permitted lands to be assessed to the heirs or devisees without naming them. Assessing it to the estate was in legal effect assessing it to unnamed heirs. The sale for 1872 was held void for the reason, among others, that, the certificate, required by law to be attached to the assessment roll, and which is to show- the manner in which the assessment was made, was never signed by the supervisor. This is an objection that cannot be overcome. It is suggested on behalf of the defendant that, as the law presumes, the performance of duty, the mere fact that a certificate does not now appear, does5 not establish that none was. attached when the roll was completed. It is true that the-statute — Comp. L. § 1129 — establishes a presumption that all necessary papers were made and filed. Upton v. Kennedy 36 Mich. 215, 221; but the presumption in this case is overcome by the production of the assessment roll with an unsigned certificate attached. This is very conclusive evidence that the supervisor failed to complete his work.
For the year 1873 the land was assessed as non-resident. This would be a fatal defect if the owners then resided in the township, but the finding does not expressly show the fact. The certificate attached to the assessment roll was as-follows: “1 do hereby certify that I have set down in the foregoing assessment roll all the real estate in the township of Dayton liable to be taxed, according to my best information ; and that I have estimated the same at what I believed to be the cash value thereof, and not at the price it would sell for at a forced or auction sale. That the said assessment roll contains a trae statement of the aggregate valuation of the taxable personal estate of each and every person named in said roll'; and that I have estimated the same at the true cash value as aforesaid, according to my best information and belief.” [Dated and signed.] This is in compliance with the statute except that the word i/rue is omitted before the words “ cash value ” where they first occur. But this was doubtless an unintentional omission; for when at the conclusion the supervisor certifies that he has assessed the personal property at the “ true cash value as aforesaid,” he shows that the words “ cash value ” and “true cash value” are used as synonymous terms.
The date of the certificate was two days before the time fixed by law for reviewing the roll and hearing complaints. This is supposed to show frima facie that there was no such review. We do not think so. A date is not essential to such a certificate, but if attached it might as well be done before the review as afterwards, especially if no changes were made in reviewing.
In the certificate to the assessment roll for 1874, not only was the word “true” omitted before the words “cash value,” but the words “ or auction ” were omitted between the words “forced” and “ sale.” We doubt if we can hold these omissions to be merely clerical and presumptively accidental. This certificate is no mere matter of form. It has been prescribed by the Legislature on reasons supposed to be imperative, and for the purpose of correcting a notorious and very serious abuse. The statutory requirement ,'has always been that the supervisor should assess property .•at its cash valúe, and that ho should certify the fact; but in their anxiety to make the assessment low, it has been customary for these officers to assess at a fraction of the cash value only, while they excused themselves to their con ■sciences by some such sophistry as that, if the property were put up to a forced or auction sale, it would bring no more than they had assessed it at. The Legislature undertook to render this subterfuge impossible by requiring the supervisor to certify that he had assessed the property at the true ■cash value, and not at what it would sell for at forced or auction sale; and as the Legislature has deemed these words necessary to prevent evasions, we are not at liberty to dispense with them. A forced sale is not necessarily an auction sale; an auction sale is not necessarily a forced sale; and it is not admissible therefore to say that one of the two terms answers the requirement for both. But even if they were synonymous, the omission of one, in the light of the history of the statute, has too much the appearance of an intentional ■departure from the required form, as if the certificate of .cash value was made with mental reservation. The defect is fatal. Silsbee v. Stockle 44 Mich. 561.
All the sales are claimed to be void, because the return of the township treasurer to the county treasurer does not .show that the former made personal demand of the taxes before returning the land as delinquent. The returns for ■each year appears, however, to be in strict compliance with the statute — Comp. L. §§ 1019, 1021 — and shows that the township treasurer had not, “upon diligent inquiry, been able to discover any goods or chattels belonging to the person charged with or liable to pay such sums, whereupon he coirld levy the same.” This is sufficient. If personal demand -was necessary it must be presumed to have been made.
Our conclusion is that the tax sales for 1871 and 1873 were not shown to be invalid, and that the circuit judge erred in holding them to be so. An objection was made on the trial to supposed excessive charges by the State; but the facts do not sufficiently appear to enable us to pass upon them.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Graves, C. J.
This is a hearing on an order to show cause why a mandamus should not issue. The case set up-by the relator in his application is briefly to the effect that the school inspectors in 1879 organized school district No. 5 and in so doing detached a part of the territory of school-district No. 1 to make up the requisite territory for the new district; that said district No. 1 owned a valuable school building and some other property, a share of the value-.whereof was due to the new district from the old one; that the inspectors accordingly settled the amount at $445 and all needful steps were taken to fix the respondent with the-duty to lay a tax on the district for the sum ascertained by the inspectors, but he positively refused. The case is submitted on the application, and the answer of the respondent, accompanied by an affidavit made by the township clerk who officiated with the inspectors when they assumed to-find what amount it was incumbent on the old district to-pay to the new one; and on another paper subscribed by relator’s attorneys and called a replication, wherein among •other things it is said that relator demands a trial of the matters set forth in said petition and answer.
The record is singular. The parties seem to be at variance in respect to certain facts and at the same time in a state of expectation that something decisive may be done before they are settled, and on a scrutiny of the record there appears to be a point of law which may be safely adjudicated on this hearing and the result of which will put an end to this proceeding.
The respondent’s answer is understood as admitting the determination by the inspectors that the share to be paid by the old district to the new one on account of school building and district property was $445. At the same time the answer sets up that the property in question was not owned by the district but by private persons and that the inspectors .acted without information on this subject and on mere assumption, and this statement is supported by the affidavit of the township clerk who acted with the inspectors and as one •of the board. The answer further shows that an appeal to the township b.oard was taken from the finding of the inspectors of the amount payable from the old district to the new one, and that the appeal was entertained and the ■decision of the inspectors reversed.
The relator is understood as admitting that the proceedings for appeal were pursued and in proper form, and that the township board assumed jurisdiction and ordered a reversal. But his point of contention is that the statute gives no authority for an appeal in such a case and that the taking cognizance of the subject was mere usurpation.
The claim is set up that a decision by the inspectors liquidating the sum to be paid by one district to another in such circumstances is final and conclusive, and hence that the reversal by the township board is void and the determination by the inspectors binding and of imperative force. It is not to be assumed that school .inspectors have any jurisdiction to attempt a liquidation where the ownership of the school house or other property is the subject of Iona fide controversy. There is much room for thinking that they have not received power to judge any question so difficult and imposing as the ownership of school district property,, nor power to go on, and without regard to the actuality of such ownership, fix a district with liability. And it may be that the provision for the inspectors to find the amount to be paid by a district tacitly carries with it the condition precedent that the ownership is conceded or has been settled by a competent tribunal. The question is not material now. The relator bases his denial of power in the township board to hold appellate jurisdiction, on the peculiar language of the statute. The only provisions it is necessary to notice are Comp. L. §§ 3644 and 3734, and they appear below.
The argument is that an appeal is given only against some K action, order, or decision of the board of school inspectors with reference to the formation, division or consolidation of a school district”; and that the finding, made by the school inspectors on this occasion, that $445 was due from the old district, was not “ any action, order, or decision with reference to the formation, division, or consolidation ” of a district. This view is quite too refined. The statute contemplates the adjustment of the amount as connected with the alteration of territory and as proper to be made at the same time. The equitable partition of the interests in the corporate property is a sequel of the division of the corporate territory, and the former is fairly an action having relation or “ reference ” to the latter.
It would not be easy to find a reason for the allowance of an appeal in one case and not in the other; neither would it be easy to discover what purpose the Legislature could have had in using the circuitous description of the cases of appeal, unless it was the object to extend the right not only to tliz formation, division and consolidation of districts, but also to such proceedings incidental thereto as the act in question. The township board had jurisdiction of the subject, and as we view the case this conclusion disposes of the present application adversely to the relator.
The petition is therefore denied with costs against the relator.
The other Justices concurred.
“Sec. 3644 When a new district is formed, in whole or in part from one or more districts possessed of a school house, or entitled to other property, the inspectors, at the time of forming such new district, or as soon thereafter as maybe, shall ascertain and determine the amount justly due to such new district from any district out of which it may have-been in whole or in part formed, as the proportion of such new district of the value of the school house and other property belonging to the former district, at the time of such division ; and whenever, by the division of any district, the school’ house or site thereof shall no longer be conveniently located for school purposes, and shall not be desired for use by the new district in which it may be situated, the school inspectors of the township in which such school house and site shall be located,, may advertise and sell the same, and apportion the proceeds of such sale, and'also any moneys belonging to the district thus divided, among the-several districts erected in whole or in part from the divided district.
“ Sec. 3734. The People of the State of Michigan enact, That whenever any five or more tax-paying electors, having taxable property within any school district, shall feel themselves aggrieved by any action, order, or decision of the board of school inspectors, with reference to the formation, or any division or consolidation, of said school district, they may, at any time within sixty days from the time of such action on the part of’ said school inspectors, appeal from such action, order, or decision, of said board of school inspectors, to the township board or boards of the township in which such school district is situated; and in case of fractional school districts, such appeal shall be made to the several township boards of the several townships in which the different parts of said fractional school district are situated, who shall have power, and whose duty shall be, to entertain such appeal, and review, confirm, set aside, or amend the action, order, or decision of the board of school inspectors thus appealed from; or, if in their opinion the appeal is frivolous, or without sufficient cause, they may summarily dismiss th» same. ” ' | [
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] |
Marston, J.
This is an action of assumpsit brought to-recover upon a promissory note for $1100 dated January lstr 1S80, and given by defendants to Edgar Sheldon.
Edgar Sheldon died November 4th, 1880, leaving a wilF dated December 30th, 1878, in which numerous bequests-' were made, and among them, one of $200 each to the above-named defendants, his nephews. After the bequests the-following clause was in the will: “All the foregoing-legacies are intended and declared to be for the individual1 •«state of the said legatees, exclusive of any indebtedness to ■ me at this date, or others.”'
The defendants claim that by this clause they are released ■from payment of the note in suit or any part thereof.
No such construction can be given to the will. The «lause in question is awkwardly drawn, but its meaning is mot after all doubtful. Whether the intention of the testador could be fully and effectually carried out is a question mot arising on this record.
The intention clearly was, that the bequests made shouldIbe exempt from the debts of the legatees, and should any of ■¡them be indebted to the estate of the testator, the legacy -.should be paid notwithstanding such indebtedness, leaving ithe debt due the estate to be collected as a part of the assets <of his estate' in the ordinary manner. In this respect he was willing that an indebtedness to him or to his estate should stand as would one to third parties “ or others.”
No other construction could be given this clause in the will without destroying other provisions. If this note were mot collected the legacies could not be paid in full from the .assets: the court so finds. The effect of such a construction would be to prevent the testator, during his life-time, from loaning to any of the legatees any money, unless he intended ■¡thereby, if not collected during his life-time, to have the -•debt cancelled by tliis clause. The deceased certainly could ¡have had- no such intention, and the language used will warrant» no such construction. In order to forgive a debt the provision indicative of such an intent should be clear and ¡unambiguous.
The conclusion arrived at by the court below was correct .and the judgment must be affirmed with costs.
Cooley and Campbell, JJ. concurred. | [
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] |
The Court
held that the case came within the ruling of People v. Hall 48 Mich. 482, with reference to the endorsing the names of witnesses on the information, and directed; a new trial. | [
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] |
Cooley, J.
Plaintiff in error was indicted and convicted of the robbery of one Henderson, in the city of East Saginaw, on the'evening of September é, 1880. Henderson was a resident of Livingston county, and went to East Saginaw on the day named to purchase casks in which to put up cider. His story was that he 'went to that place with about $250 in money, $50 of which he gave to a Mr. Brado to expend for him, that having the remainder with him he went into Carter’s saloon to inquire for casks, ai^d there saw Becker, with whom he was unacquainted; that in the saloon he was induced to play three or four games of cards with Becker and others; that when he left them Becker accompanied him, pretending to be able to show him where casks could be found; that in walking along Becker told him he was a deputy sheriff of Bay county and-was or had been a deputy United States marshal; that Becker took him to-various places where.they inquired for casks but found none; that they walked to a brick building on a corner with a saloon underneath and stairs on the outside; that Becker went up the stairs and Henderson hesitated ■ and objected, but Becker insisted, and they went in where there were-women and called for something to drink; that Plenderson told Becker he wanted to get out and attend to his business ;. that from there they went into the streets and apparently around several blocks until they heard music, and then Becker wanted Plenderson to go in, but he replied he-wanted to go to the Everett House; that Becker said after-going in he would take him there ; that they stopped where the music was, and found a private dance was going on, and were not admitted; that they started along again, and Becker offered to bet that they were not forty rods from the Everett House and made a movement to get out some money;. that Henderson said he would not bet, and would not go-any further in that direction; whereupon Becker with an oath seized him, took away his pocket-book and ran off. It. was then about nine o’clock in the evening, and the place-was lonely and dark. Plenderson immediately made an outcry, and Becker was an-ested the next morning.
Becker was twice tried; the jury not agreeing on the-first trial. On the second trial, after Henderson had given his account of the transaction, substantially as is above set forth, he was questioned about his journey from Livingston county to East Saginaw, and he stated that at Fentonville he received §10.90. for butter which he sold. He was then asked whether on the last trial he did not testify that he got for the butter §18 to §24. The question was objected to, and the court -ruled that he need not answer, as it related to a matter collateral to the issue.
Whether Henderson had any money on the occasion specified it was of course important to know, but where or by whom he obtained it was of no importance. In the record there is no intimation that the fact of hi.s having money was contested. He had sworn to the possession of two hundred dollars, and that it was in his pocket-book at the time of the robbery. The trial jndge might have suffered the defence to question him with a view to test the truthfulness of this statement, but unless the main fact of the possession of the money was contested, it could not have been a matter of right for the defence to go into all the particulars and require the complaining witness to account for all the money. If the purpose was merely to extract from him contradictory statements with a view to impeachment, the judge was correct in holding that the inquiry was collateral to the main issue, and the answers of the witness could not be contradicted. If there was any other purpose it should have been stated, that the judge might rule understanding^ upon the proposition.
Henderson' was further questioned on cross-examination as to the time and place when and where Becker told him who he was, and stated that either at Carter’s or on the walk Becker said, “ If you go to Bay City, ask for me. My name is Horace Becker.” He was then asked, “ Didn’t you testify on the last trial of this case that he told you that in Carter’s restaurant in the presence of McArthur and Sweet?” This was objected to unless his attention was called to the minutes of his testimony on the former trial, and they were read to him. The judge sustained the objection.
From what appears in this record we cannot affirm that the objection .had force. Testimony on trials in the circuit court in the principal counties of the State is now taken by official stenographers, but it is not always written out and filed, and the witness never signs it in law cases, unless under exceptional arrangements. The stenographer retains his minutes, and their correctness depends on his skill and reliability. They do not constitute an official document, but are the materials by the aid of which a narrative of the proceedings on the trial may be put in due form whenever it shall be important. But the stenographer’s minutes do not bear upon their face any such evidence of accuracy as the signing by the witness himself gives to a deposition. Where he has not personally attested them so as to make them evidence against himself, he cannot insist that, their accuracy shall be assumed in his favor.
If, therefore, in this case the previous evidence of the witness had not been subscribed by him, the objection to the proposed question was put upon untenable ground. But it does not necessarily follow that legal error was committed in sustaining it. The question had no purpose in the case except to impeach the witness by showing contradictory statements made by him; and unless an answer one way or the other would have had a tendency to that end, the respondent could not have been legally entitled to it. The point actually before us therefore is, whether the evidence already given by the witness would stand in contradiction to that supposed by the question to have been given on the former trial.
On this trial the witness had stated that Becker told him who he was and where he lived, either at Carter’s restaurant or on the walk after leaving it. The defence then sought to show that on the former trial he testified that this statement was made to him in the restaurant where they had met McArthur and Sweet. Suppose the fact had appeared; how would that have contradicted the evidence now given ? He has not denied now that the statement was made in the restaurant, but on the contrary has affirmed that the occurrence did take place either there or in the street. There may have been a discrepancy, but certainly no contradiction.
We do not doubt that the judge might in his discretion have suffered the question to be put; and perhaps he ought to have done so. But questions of this soft may be, and no doubt often are, asked unreasonably, with no other object in view than to confuse the witness by involving him in contradictions which are more apparent than real, and which it may be evident to the judge are due to his want of self-pos session rather than to his want of candor. If at any time it-becomes obvious to the judge that counsel is unreasonably constiming time in an examination that departs from the-main issue, and has for its purpose nothing beyond embarrassment and confusion to the witness, the judge ought in his discretion, in the interest of justice, to terminate it. There can never be a legal right to put questions the answers to which could not on any just consideration influence the result; and such, we think, was the case here.
The defence offered to show by several witnesses that. Becker had received moneys at about the time of the alleged offence, and also that the morning after his arrest he-pawned a watch for fifteen dollars. This is said now to-have been to account for Becker’s possession of money. The court excluded the evidence. It does not appear from! the record that the prosecution claimed to have found the-money of Henderson in Becker’s possession, and in the absence of any such claim the ruling on this point was-correct.
On an assumption that one of the places to which Henderson said Becker took him to was a house of ill-fame, thedefence offered to prove by Becker himself that he was not in the habit of going to such places. The object of this was said on the argument to have been “ to remove if we could any impression unfavorable to him arising from the-fact- of his presence there upon that occasion.” It was not, then, to raise a presumption against the truth of Henderson’s evidence, but to remove as far as possible the unfavorable inferences that would naturally be drawn from the-established fact. In the same connection and for the same purpose apparently the defence asked Becker to explaim how he became aware that the house was one of ill-fame. The answer to this was not allowed. The judge was-undoubtedly right in his rulings. The prosecution did not seek to prove and did not pretend that Becker was in the-habit of -visiting such places. And if he was not accustomed to frequent them, the prosecution might with the-greater force urge before the jury that his going to one, am this occasion' and endeavoring to induce Henderson to drink there, and then trying to get into a dance-house at another place for no apparent reason consistent with honesty, must have had for its purpose the very crime Henderson swears was committed upon him.
Complaint is made that the prisoner was sentenced before the end of the term at which he was convicted, and therefore before the time had expired for settling exceptions. But there is no statute and no rule to preclude this. Under the statute if the judge thinks the exceptions are not frivolous, he may after they are settled certify.them to this court' for our opinion before sentence; but he can judge whether they' are frivolous or not as well before the bill of exceptions is settled as afterwards, and is under no necessity of delaying the sentence to await the action of counsel in settling the bill.
There are some other exceptions, but we think them without plausibility,. ' The conviction must be affirmed.
Graves, C. J. and Campbell, J. concurred.
Marston, J. did not sit in this case. | [
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] |
Cooley, J.
Tbe plaintiff in tbis case recovered judgment on evidence tending to establish tbe following state ■of facts:
In September, 1878, one Beimer owned certain real estate in the city of Detroit, which was encumbered by a mortgage to Catharine Fay, the plaintiff’s wife, for $600, on which interest had accrued to the ainount of $126. Sander-son and Johnston were then in business together as dealers in real estate, and they or one of them owned a parcel of real estate in Nankin. Between them and Beimer an ■exchange was made, by the terms of which it was agreed that Beimer should pay $400 on Catharine Fay’s mortgage, besides the interest due, and that defendant should take the place subject to the remainder. Previous to this, Catharine Fay had given to her husband this unpaid interest money, and he held the mortgage, and it was understood in the-trade that the sum should be paid to him. When th© papers were exchanged between Reimer and the defendí ants, Reimer told them he would pay the interest mdney to-plaintiff, but defendants insisted it should be paid to them and they would pay it over. Accordingly he paid it to* them, both being present; and he also paid them $400 on the principal. For the payment of the principal Catharine Fay had agreed to wait, and it was not expected that what Reimer paid to defendants towards the principal was to bo then paid over.
From other evidence in the case it appeared that plaintiff' had no assignment of the mortgage, or of any sum due or to become due upon it, and as between himself and his wife there was merely a verbal gift of the interest. Reimer’s deed named defendant Sanderson as grantee, who a few days later conveyed the land to Johnston subject to -the mortgage “ and the interest due on this sum to this date.” Johnston the next May conveyed to Sarah M. Armstrong,, and she in December following conveyed to Catharine Fay, “subject to a mortgage made by Frederick Reimer and wife to Catharine Fay for six hundred dollars with the interest from the third day of October, 1878.” These constitute the material facts in the case. The conveyance to Catharine Fay of course operated as a merger of the mortgage, and she afterwards entered a formal discharge of record.
The question whether defendants were partners in the transaction was fairly submitted to the jury, and no comment upon it is required here. The point of contention is, whether plaintiff, by the verbal gift of his wife and the promise of the defendants when they received the money from Reimer, became entitled to demand and receive from them the moneys so paid. We think he did.
This is not a suit upon a promise made to one party for the benefit of another, and the questions which were passed upon in Pipp v. Reynolds 20 Mich. 92, do not therefore' arise. It is a suit by one to recover money which has been paid expressly for his use, and which the party recovering it: undertook to pay oyer to him. No question under the .statute of frauds arises, as in the case of Halsted v. Francis 31 Mich. 113. Nor is there any question of the substitution of one contract for another. It was not contemplated that .■any new contract should exist; money was merely paid to the defendants to be paid to the plaintiff; and if plaintiff had a right to receive it, the fact that there was a contract in the case in which another party was concerned, and upon which the money when received would operate as a payment, does not appear to be of importance. , We may concede that the promise of defendants, in case they had taken the land subject to both principal and interest, that they would pay the interest to a party not holding the legal title to the mortgage, would be ineffectual, but that would be ■another case from this case, for in this case the plaintiff has not entered or proposed to enter into contract relations with the defendants, and he merely demands that they shall pay over to him moneys confided to them for him. The case is ruled by Catlin v. Birchard 13 Mich. 110. It is urged that the payment would not have protected the defendants against a suit by Mrs. Fay to recover the same sum; but this is a mistake. Her parol gift, whether effectual in law or not, was at least sufficient authority for plaintiff to receive the payment; and not only did defendants subsequently Heal with plaintiff on the supposition of his being the ■owner, but Catharine Fay in purchasing the land treated the interest moneys of which she had made a gift to her husband as being no longer secured by the mortgage.
No error appears in the record, and the judgment is affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Mrs. Somers sued defendants as joint makers of a note for $145, dated February 17, 1879, and payable in “ one or two years after date with ten per cent, interest to Joseph Somers, or bearer,” said Joseph being her husband.
Defendants claimed and were allowed at the circuit a reduction of $47.95, by reason of garnishee proceedings in which they paid that amount on a justice’s judgment against the husband. As this is the only reduction made in their favor, all the questions we are required to consider depend upon the effect of the garnishee action.
On the 8th of May, 1880, a judgment was recovered by James Ford, township treasurer of the township of Dear-born in Wayne county, against Somers, which from the docket recitals appears to have been for unpaid personal taxes. This judgment was rendered regularly on personal service and appearance and plea.
On the 15th of February, 1881, a garnishee summons was sworn out under this judgment against the defendants in this suit. On the 25th day of February they made their disclosure of indebtedness on the note in the suit here. The court reserved decision until March 1, when a formal judgment .was rendered against them. On the 8th of May, 1881, they paid the amount to the justice. This was after the present suit was brought, but before plea. The defence was properly pleaded.
The plaintiff claims that this garnishee payment was unauthorized and not binding on her, because she was owner of the paper before maturity and at the time of the garnishment, and also because, as she insists, the judgment and garnishee proceedings were both void.
The objection to the judgment is that the suit was not brought in the proper name, or in the proper way to collect delinquent taxes. It is sufficient to say that there being a plaintiff who has actually sued, and a defendant who has been cast in a judgment from which he has not appealed,, for an amount within a justice’s jurisdiction, that judgment cannot be attacked collaterally.
It is claimed that a promissory note not dug cannot be garnished, and reference is made to a former decision of this court in aid of that claim. Littlefield v. Hodge, 6 Mich. 326. In that case the note was negotiated before maturity, and the garnishee proceedings were completed by disclosure and judgment before maturity. "We need not consider whether the statutes as they now stand have changed the old rule, because in the present case the disclosure was not made until several days after the maturity of the note, when the same difficulties do not exist if the note is in the hands of the judgment debtor. And it is not very important to determine whether the justice’s judgment against the garnishees is regular without a further declaration, or whether it can be attacked collaterally, because under the statute the disclosure fixes the liability without a judgment so that the garnishees may pay the money over. Comp. L. § 6445.
If then Somers owned the note at the time of the disclosure defendants must be protected in their payment.
This brings up the question of plaintiffs title. She swore that she got the note in December, 1880. She also swore to facts which would have put back her title still earlier. On the other hand there was testimony of conversations and dealings in her presence which tended very directly to show that she did not own it when the note matured. On this direct conflict of testimony the circuit judge left the question to be determined by the jury whether she then owned the note.
It is claimed that this question was not clearly presented; but‘in our opinion, inasmuch as the conflict was one which could only be settled by the jury by accepting or rejecting her testimony, the result does not indicate any such difficulty, and the matter was fairly presented.
The judgment must be affirmed with costs.
MArston and Cooley, JJ. concurred. | [
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Marston, J.
On the 11th day of July, 1876, George TT. White commenced an action in the Superior Oourt of Grand Rapids against the Michigan & Ohio Plaster Company, and on the following day garnishee proceedings were commenced against Moses Y. Aldrich. The writ was served the same .day and was made returnable July 31st.
Moses Y. Aldrich did not appear nor did he make any ’disclosure. On the 8th day of December, 1879, Aldrich -died, and on the 23d day of January, 1880, Ledyard was •duly appointed administrator. On the 24th day of September, 1881, the death of Aldrich was suggested of record and the cause revived in the name of Ledyard, administrator.
October 24, 1881, Ledyard, administrator, caused his appearance to be entered, and his default for want of a disclosure was entered November 14, 1881, and made absolute November 19th, and judgment by default rendered December 2, 1881, against him, Ledyard, as administrator, for $997.90, the amount of the judgment and costs rendered .against the principal defendant.
We need not consider the several errors assigned, as there •stands out prominently one error fatal to the proceedings.
Judgment can be rendered against a garnishee defendant either upon disclosure made, or upon default for. want thereof. At the time of the death of Aldrich no disclosure had been made and no default entered for want thereof. When the cause was revived against the administrator, he, .as such, had neither the requisite knowledge nor authority to make a disclosure binding upon the estate. It may be that in some cases an administrator could, after a careful examination of the books and papers of the deceased, be-able to state whether a certain indebtedness did in fact exist. It cannot however be expected that generally an adminis-, trator could qualify himself to make such a disclosure as the-statute contemplates in garnishee cases. And his admissions, if made would not bind the estate. Fish v. Morse 8 Mich. 34. If he could not, then the only object of reviving the-suit in his name, would be to enable the plaintiff to take a judgment against him by default. This however is not the-way pointed out by statute for the' allowance and collection of claims against an estate, and no such method as was resorted to in this case could ever have been contemplated, or is authorized by the statute relating to garnishees. This view is strengthened by the fact, that had Aldrich died before the commencement of the garnishee suit against him, no such suit could have been commenced against his administrator. See also Blake v. Hubbard 45 Mich. 1.
The judgment must be reversed with costs of both courts-
The other Justices concurred. | [
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] |
Marston, J.
Tbe only question in this case, is whether the defendant in an action can set off a claim for rent and for horse pasture, where the amount had not been agreed upon or fixed in any way by the parties, and we are of opinion that within the rule laid down in Smith v. Warner 14 Mich. 157, the court properly rejected the same.
"What would be a reasonable rent, and what would be a. reasonable compensation to be paid for pasturing a horse, could not be arrived at by any mere mathematical process,, but would have to be determined from the conflicting opinions of witnesses. The claim was ¡therefore neither liquidated nor capable of being ascertained by calculation, and therefore not such an one as the statute permits .to ‘be the-subject of a set-off, not coming under any of the other statutory provisions.
The judgment must be affirmed with costs.
The other Justices concurred. ' | [
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] |
Campbell, J.
The only question which needs considerar rtion in this case is whether a surety on a replevin bond can be held liable where in the body of the bond a principal’s name appears, and he does not sign it.
This case was put to the jury under instructions which ■practically held that the presumptions were against such a liability, but that if the surety delivered the bond with the intention that it should take effect without the principal’s •signature, and did not intend that such signature should be .necessary to fix his own liability, then the bond should be effective and binding.
We think this was correct. There is no foundation suggested for- any other rule unless on the theory that the plaintiff must always sign in person or by agent as principal in a replevin bond. This, in case of absence or for many •other easily-suggested reasons, might defeat his remedy altogether. The statute allows the bond to be signed by ■“ some one in his behalf.” § 6735. This cannot mean an ■agent only, for then it would be the plaintiff’s own bond, for the agent is his representative and the agent’s act is his act. It cannot make any difference to the defendant what person rsigns the bond, if- it is only signed by responsible parties. We think that a bond signed by none bnt sureties is sufficients Unless (which is not claimed) the bond would in all cases be-void when some obligor named fails to sign it, the liability exists in this case.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
On June 10, 1968, defendant was arrested and charged with felonious assault and carrying a concealed weapon. Although defendant was acquitted on the assault charge, he was convicted on the charge of carrying a concealed weapon and from this conviction he appeals.
The complainant testified that, subsequent to a violent argument between defendant and himself, the defendant opened the trunk of his car, took out a handgun, and told him to leave. It was then that the complainant walked to a nearby telephone booth and notified the police concerning the gun and the assault. Defendant pursued the complainant to the booth and again pointed the gun at the complainant and requested him to refrain from making the call. At the time the defendant arrived at the telephone booth, complainant had already completed the call. Shortly thereafter, when the police arrived, the defendant was arrested.
Defendant admitted in his testimony that he took the gun out of the car trunk, had it in the car, and took the gun with him to the telephone booth as a defensive measure. He alleges, as a defense, that he was exempt from the statute by virtue of its statutory language, which exempts goods being moved from one place to another. PA 1931, No 328, § 231a, as added by PA 1964, No 215 (MCLA § 750.231a, Stat Ann 1968 Cum Supp § 28.428 [1]). Defendant introduced evidence which showed his intent of moving to a new residence. The prosecution charges that defendant’s immediate purpose was other than the movement of goods from one residence to another. Determination of factual questions in a criminal case is a function of the jury. People v. Mosden (1969), 381 Mich 506. The court properly charged and submitted this issue to the jury. If there is evidence in the record which, if believed, will support a verdict of guilty beyond a reasonable doubt, the Court of Appeals will not reverse the conviction. People v. Shaw (1968), 10 Mich App 315.
Defendant’s second ground for reversal is based upon an alleged admission of guilt to a police officer during a recess, which was, without objection, later admitted into evidence. Defendant denied ever having made the statement attributed to him, and asserts that the witness should have been called who was present with the defendant at all times during the trial recess, to substantiate defendant’s contention. There is no indication in the record that defense counsel ever made any objection or motion for a continuance, in order that this witness might come forward to testify. Generally, objections not raised during trial will not be considered by the Court of Appeals when raised for the first time on appeal. People v. Willis (1965), 1 Mich App 428; People v. Wilson (1967), 8 Mich App 651; People v. Bradford (1968), 10 Mich App 696. We find no reversible error here.
Affirmed.
CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277).
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Danhof, J.
This is an action to recover under a contract of life insurance issued by Wayne National Life Insurance Company (hereinafter referred to as Wayne National) to the named insured, William G-eorge Najor. The widow and named beneficiary, Teresa Hanna Najor, is the plaintiff. After issuance of the policy, Alexander Hamilton Life Insurance Company of America (hereinafter referred to as Alexander Hamilton) merged with Wayne National and took over all of its existing obligations under policies previously issued. The essential issue for consideration by the Court is whether the contract of insurance issued on the life of William Najor had lapsed for nonpayment of the premium on the date of death.
The issue arises because there is a patent ambiguity between the “issue date” of 12-28-65 on the application for the life insurance and the “date of issue” on the policy which is 12-28-64. Only one year’s premium of $1500 had been paid prior to William Najor’s death on March 6, 1966. If the life insurance policy was in force for one year from the issue date in the application plus the 31-day grace period in the policy, the contract of insurance had not lapsed for nonpayment of premium on the date of death, March 6, 1966. The same is true if the policy is considered to have been in force from the date that William Najor passed the medical examination on March 24, 1965. However, if the life insurance policy was in force for one year plus the 31-day grace period from the date of issue typed in the policy, 12-28-64, then the contract of insurance had lapsed in January, 1966, prior to the insured’s death in March, 1966.
Plaintiff commenced suit on August 4, 1966 asserting that the date of issue, 12-28-64, on the policy had been placed there by error, mistake or inadvertence by the defendant, by or through its agents and employees, or in the alternative was placed on the policy at the direction of defendant’s sales agent who acted without the control, consent, or knowledge of William Najor. Plaintiff prayed for judgment on the policy and that the policy be reformed to show a date of issue of March 24, 1965. On March 21, 1968 plaintiff filed an amendment to the complaint adding a prayer that the policy be reformed to show a date of issue of 12-28-65. Plaintiff filed a second amendment to the complaint on August 7, 1968 asserting that the policy was uncertain, ambiguous and confusing as to the issue date, date of issue, and effective date. Plaintiff asked that the uncertainty, ambiguity and confusion be resolved against the defendant and that judgment be granted plaintiff.
Defendant denied that any error, mistake or ambiguity existed and defended on the basis that the policy had lapsed for nonpayment of premiums.
The jury returned an advisory verdict as allowed under G-CR 1963, 509.4 recommending reformation of the contract in favor of the plaintiff. Following the jury verdict the trial judge independently ruled in favor of the plaintiff and specifically found that it was not the intention of the parties that the policy be predated to December 28,1964, and that recovery on the reformed contract would be allowed on either the basis of the March 24, 1965 medical examination date or the December 28, 1965 date. The trial judge specifically found that there was no evidence that the insured ever said anything to the agent or anyone else acting for or on behalf of the defendant about wanting the policy dated 12-28-64. For the purpose of the record the court did in fact reform the contract of insurance to bear the date of December 28, 1965, and a judgment was entered in favor of plaintiff.
Defendant filed a motion for a new trial or entry of a judgment notwithstanding the verdict. It was denied. A timely claim of appeal was then filed in this Court.
This action for reformation of a contract is equitable in nature and while it is heard cíe novo on the record by this Court, we give great weight to the findings of the trial judge and will not reverse unless they are clearly erroneous, House v. City of Bloomfield Hills (1969), 18 Mich App 184; GCR 1963, 517.1.
At the time of trial, only two witnesses were called to testify. Plaintiff introduced into evidence the policy file of Wayne National and the testimony of John Harris, a second vice-president and senior underwriting man of Alexander Hamilton, who was called by the plaintiff as an adverse witness. Harris was not in the employ of Wayne National at the time of the issuance of the contract of insurance. Wayne National called as its only witness, Edward Najor, its sales agent and brother of the deceased. Their testimony will he discussed later.
Relevant portions of the application for life insurance signed by William Najor on February 20, 1965 are as follows :
In the upper right-hand corner the printed words “issue date” appear. On the printed line following is written “12-28-65.”
Block 4 of the application reads:
“4. Date of Birth and Age
Month 7 Day 3 Year 32
Age to nearest Birthday 32 ”
Block 7 of the application reads:
“7. Sum to be Term
Insured $28064 Rider $_Total $28064”
Block 8 of the application reads:
“8. Mode of Payment and Amount to be paid:
[ x ] An. $ 1500 [ ] Mthly $
[ ] S-An. $_ [ ] M.B.D. $
[ ] Qrtly $_[ ] _$_
Cash Herewith $ 150.00 ”
All of the numbers in the foregoing blocks were inserted in ink on the actual application.
Below the 25 numbered blocks for information and above the signature of the insured, appear two paragraphs of printed material. The portion relevant to this appeal reads:
“I also agree as follows: That the policy hereby applied for shall not take effect unless I am in good health at the time of its delivery to me, provided that if this application is approved by the Company and policy issued as applied for, and provided the first premium has been paid, the insurance applied for herein shall he effective from the date of the medical examination * * * and that each statement made herein by whomsoever it may be written, is full, true and complete.” (Emphasis supplied.)
On the reverse side of the application under the heading “Agent’s Report” and the subheading “Ad ditional remarks or instructions” appears the following in ink: “Issue policy as of 12-28-65.” This is signed at the bottom by Ed Najor, Agent-Representative.
Under the general provisions of the policy appears the following:
“The Contract — This policy is issued in consideration of the application and of the payment of premiums as provided. The policy and the application, a copy of which is attached to and made a part of the policy, constitute the entire contract. All statements made by the Insured or on his behalf shall, in the absence of fraud, he deemed representations and not warranties, and no such statement shall he used in defense of a claim under this policy unless it is contained in the application and a copy of the application is attached to this policy when issued.
“Modification of Contract — Only the President or the Secretary of the Company has power to change, modify or waive the provisions of this policy, and then only in writing. The Company shall not be bound by any promise or representation heretofore made by or to any agent or person other than as specified above.”
The policy carries the date of issue of 12-28-64 and a benefit date of 12-28-64.
Two days after the insured’s medical examination was completed Wayne National applied for reinsurance. The reinsurance cession states the “policy date” as 12-28-65. The reinsurance cession has columns for listing the reinsurance amount and life premiums for five years. At the top of these columns indicating the policy year has been typed “65,” “66,” “67,” “68” and “69.” These have been written over with a pen so as to read “64,” “65,” “66,” “67,” and “68.” The work sheet in Wayne National’s records relative to this policy reads, “Date Issued 4-2-65.” Wayne National’s premium billing card reads, “Date Issued 4-2-65.” Additionally, in the lower right-band corner of this billing card is the following printed block with the dates in ink:
“Ext. Amt. 2-28-66 (three illegible letters)
Ins. To 12-28-65 Lapsed
Reinstated ”
On defendant’s carbon copy of a form letter regarding nonpayment of premium, addressed to William Najor at the address on the application for insurance, is the following in the upper right-hand corner:
“date March 3, 1966
POLICY NUMBER 8440
PREMIUM DUE DATE December 28, 1965
TOTAL PREMIUM (s) $1,500.00
BENEFIT ACCUMULATIONS 626.53
NET PREMIUM DUE 873.47”
The first column is printed and the second column is typewritten.
John Harris was qualified as an expert witness. He testified that the terms “effective date,” “issue date,” “date of issue,” “policy date,” and “date issued,” could be used interchangeably in the life insurance business, but that they did not mean the same thing with respect to this policy, that “Ext. Ins.” could mean “extended insurance” and that it had in the other companies he had worked for, that the policy had a provision for automatic premium loan which means that value in the policy may be used to pay the premium if the insured doesn’t pay it, and that the words “benefit accumulations” generally mean cash value. Harris also testified that in surance premiums are figured on a basis of the applicant’s nearest birthday, that William Major’s calendar age at the time of the application for insurance was 32, that his age to his nearest birthday was 33, and that in order to issue the policy on insured on an insurance age of 32 it would have been necessary to date the policy back.
Harris testified further that a policy applied for on February 20,1965, with premium paid by March, 1965, and a medical exam taken in March, 1965 would never be issued to take effect in December, 1965. He also stated that if as an underwriter an application such as the one in this case had come to him, he would have predated the policy without checking with the insured because the age 32 on the application along with the specific instruction which contained an error in the year showed that that was what the applicant wanted.
Harris testified that predating would have benefited deceased by getting him a cheaper premium and a higher face amount although he would have paid about $375 for three months coverage when the defendant had no risk because the insured was alive.
The agent’s manual of Wayne Mational states p 6 under subheading “age,”
“The insurance age of the applicant is determined by his birthday nearest to the date of the application. Double-check this before submission.
“The policy provides that ‘if the age of the Insured has been mistaken, the amount payable shall be such as the premium paid would have purchased at the rate for the correct age.’ ”
CLS 1961, § 500.4018 (Stat Ann 1957 Rev § 24.14018) provides that when an insured’s age has been understated the amount payable under the pol icy is that which the premium would have purchased at the correct age.
The agent’s manual of Wayne National states p 4:
“The Application
“6. The agent cannot change a signed application without the signed consent of the applicant.
“7. If any change is made, it must be initialed by the applicant.”
Edward Najor testified that at the time of the insurance application he was a highly successful sales agent for Wayne National, had won a new car award from Wayne National for his sales efforts on their behalf, and had written approximately a half million dollars worth of insurance during the two months he had been employed by Wayne National. He testified that all of the insurance contracts that he had sold prior to the one sold to William Najor had been contemporaneously dated, that is, dated as of the date of the application if no medical examination was required, or dated as of the date of the medical examination if one was required.
Edward Najor also testified that all of the handwriting on the application was his, except for the signature of the applicant, that the original application relating to a death benefit sum of $28,064 for a $1500 premium was an error on his part based on a misreading of the applicable rate chart and that the sum should have been $35,080. That error was picked up in the underwriting department and the application was amended to read $35,080 and the policy was actually issued in this amount. Edward Najor testified that the discrepancy of approximately $7,000 had nothing to do with the policy age of the applicant, that is, whether or not he was 32 or 33, but rather represented merely a misreading of the rate chart. He also said that the insertion of the age “32” in the application was an error on his part based on a confusion of the terms calendar age and insurance age and was not intended to manifest predating.
Edward Najor testified that as to the dating of the insurance contract that he, the agent, had entertained at one time or another three separate intentions as to the date, that is, predating, postdating, and contemporaneous dating (that being the date of passing the medical examination since one was required of this applicant). He testified further that postdating the policy would have given the insured a greater period of time during which to earn and save the substantial sum required for the second annual premium and a greater period of time in which to pay off a bank loan which had been applied for by the insured in order to raise the sum of $1,350 which had been borrowed in order to pay the initial premium; that the bank credit loan plan was part of the established method of financing payment of premiums approved and set up by Wayne National ; that contemporaneous dating of the contract of insurance would have given the insured immediate coverage as of date of the passage of the medical examination and was by far the usual and accepted method of dating contracts of insurance; that after predating the policy the insured would get an earlier insurable age from a positive standpoint, but from a negative standpoint the insured would be wasting 25 per cent of his premium dollar, that is, $375, during a period that he was alive and needed no insurance; that the difference in premium between age 32 and age 33 for a policy in the amount in question was only $50 per year and, therefore, it would take the insured seven to eight years to get his money back.
The sales agent testified further that his ultimate intention was to predate the policy, but he never discussed this with the applicant, and that his manifested intention to Wayne National as to the date of the insurance contract was that it be postdated to December 28, 1965. He said he was familiar with the contents of the agent’s manual as to specific instructions being necessary for predating or postdating of a contract of insurance, and that in fact he never gave the underwriting department of Wayne National any instructions as to predating the contract and the only instructions he did give them was an instruction for them to postdate the policy to December 28, 1965. He testified that he had no specific discussions with the insured as to the date of the policy and that any general discussions would have been in terms of postdating the policy by reason of the insured’s limited financial position at the time and the necessity on his part to borrow money for the initial premium payment.
Edward Najor testified that he and William Najor lived at the same home when the contract of insurance was written and that on April 7, 1965 Edward Najor momentarily handed the policy along with an Amendment of Application form to William Najor who signed the amendment which changed the amount of insurance to $35,080. The insured then returned both the policy and the amendment to Edward Najor without reading the policy.
The insured moved out prior to the time that premium notices due were received at the home in December, 1965 by Edward Najor. He testified that he knew the insured was having financial difficulties and that the first bank loan for the initial annual premium was delinquent, and therefore he elected not to deliver the premium due notices to the insured. He testified that he never brought the premium due notices to William Najor’s attention in any way.
On appeal defendant has asserted that there is no ambiguity in the contract, and that the policy is controlling if there is an irreconcilable conflict between the application and the policy.
Defendant’s position is without merit in the face of the specific language of the general provisions of the policy quoted, supra, and Section 4014 of the Insurance Code of 1956 providing that the policy and the application shall constitute the entire contract. The difference in the “issue date” and “date of issue” on the application and policy created a patent ambiguity, and the trial court quite properly admitted extrinsic evidence in order to resolve that ambiguity. See Hall v. Equitable Life Assurance Society of the United States (1940), 295 Mich 404; Wadsworth v. New York Life Insurance Company (1957), 349 Mich 240.
Defendant also argues that in order to grant reformation of a written contract the mistake must be mutual, and that there was no mistake on the part of defendant. Mutual mistake is not the exclusive ground for granting reformation.
“A written instrument may be reformed where it fails to express the intentions of the parties thereto as the result of accident, inadvertence, mistake, fraud, or inequitable conduct, or both fraud and mistake, fraud or inequitable conduct being on one side and mistake on the other. Conversely, in the absence of satisfactory proof of accident, fraud, or mistake, there is no basis for a court of equity to reform an instrument.”
45 Am Jur, Reformation of Instruments, § 45, p 609. Similarly, see 13 Appleman, Insurance Law and Practice, § 7609, pp 365-371. Plaintiff’s prayer for reformation was not based solely on the theory of mistake, but included error and inadvertence as well. However, the exhibits and testimony adequately supported the trial court’s decision, to reform the date of issue on the policy so that it conformed with the issue date of 12-28-65, whether based on error, mutual mistake, or inadvertence.
Finally, defendant claims plaintiff should be es-topped from seeking reformation because of the insured’s acceptance of the contract and his failure to read it for 11 months.
The cases relied upon by defendant in support of that position are factually distinguishable from the present ease. In none of them was there a patent ambiguity in the date on the application and the policy.
Factually closer is McMaster v. New York Life Insurance Company (1901), 183 US 25 (22 S Ct 10; 46 L Ed 64) wherein five policies of life insurance were dated December 18, 1893 whereas the applications were dated December 12, 1893. The life insurance company contended that McMaster’s acceptance of the policies estopped his representative from denying the date therein. The Court’s opinion states:
“Bearing in mind that McMaster had made no request of the company in respect of antedating the policies, and was ignorant of the interpolation of the agent, and ignorant in fact, and not informed or notified in any way, of the insertion of December 12 as the date for subsequent payments, he had the right to suppose that the policies accorded with the applications as they had left his hands, and that they secured to him, on payment of the first annual premiums in advance, immunity from forfeiture for thirteen months. And the agent assured him that this was so.
“The situation being thus, we are unable to concur in the view that McMaster’s omission to read the policies when delivered to him and payment of the premiums made constituted such negligence as to estop plaintiff from denying that McMaster by accepting the policies agreed that the insurance might be forfeited within thirteen months from December 12, 1893.”
Similarly, we find no basis for estoppel in the present case. The testimony was undisputed that the insured only glanced at the policy briefly and then returned it to the sales agent for safekeeping, and that he never requested predating, or even discussed it with the sales agent. Under the circumstance that the insurer had called to the attention of the insured a change in the policy from the application and required the insured to expressly consent in writing to the change, the insured had no reason to suppose that any other change had been made.
An insurer cannot predate a life insurance policy unilaterally, and so there was no necessity for the insured to check the date of issue on his policy since there is no evidence that he requested or consented to predating* it.
Affirmed, costs to plaintiff.
All concurred.
CLS 1948, § 500.4046 (Stat Ann 1957 Rev § 24.14046).
CLS 1961, § 500.4014 (Stat Ann 1957 Rev § 24.14014). | [
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] |
T. M. Burns, P. J.
This is an appeal from the recorder’s court of the city of Detroit, wherein the trial judge, sitting without a jury, found the defendant guilty of possession of narcotic drugs, (cocaine), without a license, MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123), and sentenced him to serve three and one-half years to ten years in prison with a recommendation of a five-year maximum.
Prom the record it appears that at about 12:10 a.m. on January 16, 1967, two Detroit police officers observed the defendant running out of the Carlton Hotel, 555 East Adams, and enter a taxicab which was parked in front of the hotel. The officers testified that they then approached the cab, and saw the defendant remove an envelope from his stocking and throw it on the floor of the cab. One of the officers testified that he then opened the left rear door of the cab and removed the envelope. He further testified that at the time he believed the envelope contained heroin. The defendant was arrested and charged with possession of narcotics, contrary to MCLA § 335.151 (Stat Ann 1957 Rev § 18.1123).
The testimony of the officers with regard to where the narcotics were, Avhen found, is contradicted by the driver of the cab, Avho testified that the police never entered the cab or searched it, and certainly did not take anything out of it.
The police officers’ purported justification for stopping the defendant Avas that they believed that he had held up the hotel. HoAvever, they testified that they never determined Avliether in fact there had been a holdup; and at least one of the officers candidly admitted under cross-examination that he knew there had not been a holdup.
So in effect, from the record, it appears that all the police observed and acted upon was the fact that the defendant ran from the hotel to the cab. Even though they conceded that they did not really believe that the defendant had robbed the hotel, the trial court alloAved the narcotics seized into evidence.
On appeal, the defendant contends that the narcotics Avere the subject of an unreasonable search and were therefore inadmissible, despite Const 1963, art 1, § 11, Avhicli alloAvs such unreasonably seized evidence to be admitted, contrary to ITS Const, Am 4.
With regard to the constitutionality of Const 1963, art 1, § 11 in face of Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684; 6 L Ed 2d 1081; 84 ALR2d 933), avc here adopt the opinion Avritten for this Court by Chief Judge Lesinski in People v. Andrews (1970), 21 Mich App 731, and strike as much of Const 1963, art 1, § 11 as is contrary to US Const, Am 4.
Yet here we may not stop at that, as the Court in Andrews did, because here the people do not concede that the search was unreasonable. We do not consider, however, that the trial court ever determined whether the search was reasonable, as it was the practice of recorder’s court to rely on Const 1963, art 1, § 11.
The conditions required for a warrantless arrest are set forth in MOLA § 764.15 (Stat Ann 1954 Rev § 28.874). Generally, the arresting officer must have probable cause before he can make an arrest without a warrant. A warrantless arrest may not be made merely on “suspicion without cause,” People v. Burt (1883), 51 Mich 199, 202; People v. Wolfe (1967), 5 Mich App 543; see People v. Panknin (1966) , 4 Mich App 19. Nor may a warrantless arrest be made on a mere general suspicion that a crime is being committed. People v. Stein (1933), 265 Mich 610; Somerville v. Richards (1877), 37 Mich 299.
When reviewing arrests made without a warrant, we consider the circumstances as they would have appeared at the time to a reasonable man.
“CL 1948, § 764.15 (Stat Ann 1954 Rev § 28.874) permits peace officers to make an arrest without a warrant upon reasonable cause to believe that a felony has been committed and that such person has committed it. The existence of probable cause ‘depends in every case upon the peculiar circumstances confronting the arresting officer. * * * He makes his determination, and we review it, not as a legal scholar determines the existence of consideration in support of a promise, but as a man of reasonable prudence and caution would determine whether the person arrested has committed a felony.’ People v. Harper (1962), 365 Mich 494, 501.” People v. Bracy (1967), 8 Mich App 266, 275.
Defendant contends that the testimony of the police officers- does not. establish that they had probable cause, that is, a reasonable basis, for making an arrest.
The people contend that under the circumstances the officers had reasonable cause to believe a felony (possession of narcotics) had been committed, or was being committed, and therefore the subsequent arrest and search were valid.
The people rely upon two cases, People v. Kuntze (1963), 371 Mich 419 and People v. McDonald (1968), 13 Mich App 226, for support of their contention. The people, however, fail to mention a very significant fact in both Kuntze, supra and McDonald, supra, that distinguishes them from the case at bar. Namely, that in both of those cases the defendants had been lawfully stopped for a violation of the state Motor Vehicle Code before the evidence in question was detected and seized. The Court in Kuntze, supra, said on pp 424, 425:
“While it is not necessary, therefore, to determine whether or not defendants were formally arrested before the leg of deer was seized, the fact that they had violated the motor vehicle code (without regard to the officers’ possible right to stop defendants otherwise) is of some significance to the extent it required the officers in the proper exercise of their duty to stop defendants’ car. The officers’ right to do so is not questioned; nor can such right be doubted. Having done so, they put themselves .in relation to defendants and their car in a place they had a right to be and from such vantage point Trooper Righter observed the commission of a misdemeanor by the defendants in his presence. # * * The only evidence received on the motion to suppress was the officers’ testimony and from that the trial judge was entitled to find, as he did, that defendants were stopped legally for a traffic violation.
“Having lawfully stopped the defendants, the legal property of the subsequent search and seizure of the leg of deer depends upon the information the officers then possessed and subsequently learned immediately before its seizure for it is that information by which they, and we, must determine whether they had a right to search and seize without a warrant and to what extent that right properly could be exercised.” (Citations omitted.)
We find nothing in the record in the instant case which amounts to probable cause for stopping the defendant. Compare People v. Harper, supra. The taxicab driver testified that he was legally parked next to the curb at the hotel. The officer admitted that he knew there had not been a holdup at the hotel. In addition, we are not directed to authority for the proposition that the mere observance by the officers of the defendant taking a packet out of his stocking and dropping it on the floor of the taxicab gives the officers probable cause to make an arrest. This action may give rise to a general suspicion that a crime is being committed, but we do not consider that alone would be sufficient to create probable cause, justifying an arrest.
To find that there was probable cause to arrest and search the defendant, a trial court must find sufficient facts to meet the standard of reasonableness set down by US Const, Am 4 as it has been developed in such cases as McCray v. Illinois (1967), 386 US 300, 301, 315 (87 S Ct 1056; 18 L Ed 2d 62), reh den 386 US 1042 (87 S Ct 1474; 18 L Ed 2d 616), and Cooper v. California (1967), 386 US 58 (87 S Ct 788; 17 L Ed 2d 730), reh den 386 US 988 (87 S Ct 1283; 18 L Ed 2d 243).
Although we recognize that a standard of reasonableness is imposed upon the conduct of police officers in the field of searches for, and seizures of, con traband such as narcotics in automobiles, we do not impose the same standard of reasonableness on such searches as we have upon searches in non-mobile situations, such as in buildings. For as Judge Levin indicated in his concurring opinion in People v. Barker (1969), 18 Mich App 544, 554 in footnote 11, the United States Supreme Court has clearly stated in Dyke v. Taylor Implement Mfg. Co. (1968), 391 US 216, 221 (88 S Ct 1472; 20 L Ed 2d 538), that “(a)utomobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office.” The standard which is imposed is one which considers all of the surrounding circumstances. It requires only that the police officer act as a reasonable man would upon the knowledge which he actually possesses, and not on vague and general suspicions.
On the facts presented to us in the records, it is patently clear that the conduct of the arresting officers does not measure up to the standard of reasonableness. Therefore, we are left no alternative but to reverse the conviction of the defendant which was based solely on the improperly seized evidence.
Reversed and defendant discharged.
All concurred. | [
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Y. J. Brennan, J.
Defendant Richard Mauch appeals in propria persona following his conviction of escape as a third felony.
The proceedings in question are the second to be held on the charges arising out of defendant’s escape from Jackson Prison in April, 1963. The first took place in March, 1964, when defendant pleaded guilty to escape and third felony and received a sentence of two to six years, to be served upon expiration of the sentences he was serving at the time of the escape. In July, 1967, the convictions were vacated and a new trial was granted. This time the charge of escape was tried before a jury. Upon reconviction, defendant pleaded guilty to third felony and, on July 17, 1968, received a sentence of 2-1/2 to 6 years, again to be served consecutively to the pre-existing sentences.
Defendant’s allegations of error, none of which entails reversal, are restated and discussed in order:
1. Evidence of the pre-existing convictions was inadmissible. At the escape trial the prosecution adduced evidence showing defendant to have been an inmate of Jackson Prison at the time of the alleged escape. This evidence consisted of testimony by the prison record clerk, along with two mittimuses, each certifying one of defendant’s two pre-existing convictions. Although mention was made of the sentences received under these convictions — 20 to 30 years and life — no mention was made of the underlying crimes (kidnapping and assault with intent to murder). Defendant contends that this evidence nevertheless constitutes evidence of prior crimes and was therefore inadmissible under the general rule barring such evidence. People v. Askar (1967), 8 Mich App 95; People v. Shaw (1968), 9 Mich App 558; People v. Camel (1968), 11 Mich App 219.
That the clerk’s testimony and the mittimuses constitute evidence of prior crimes goes without saying. That they do so does not mean, however, that they were inadmissible. The general rule relied upon by defendant, when fully stated, allows the use of such evidence when it is material and relevant to the issue being tried. People v. Fleish (1948), 321 Mich 443, 461. The broad issue below, of course, was whether defendant committed the crime of escape from prison. A principal element of this crime is the accused’s imprisonment. See 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1374, p 1786. Thus, the prison clerk’s testimony and the mittimuses were not only material and relevant, but served as part of the showing necessary for a conviction. We find no violation of the general rule. See People v. Burd (1965), 1 Mich App 178, 183.
Defendant alleges two other errors regarding the admissibility of this evidence. First, he contends the prosecutor was precluded from adducing any evidence of his imprisonment since he admitted before trial that he left the prison, his defense being that the prison authorities knew an escape was planned but nevertheless made no attempt to thwart it. The answer to this contention is that a judicial admission does not preclude an offer of proof in a criminal case. People v. Neaton (1940), 294 Mich 134. Secondly, he contends that he was prejudiced by a reference to his use of an alias, since, he argues, only “hardened criminals” use aliases. The reference consisted of the prison clerk’s reading of one of the mittimuses. The mittimus certified the conviction of one “John Rogers, a/k/a Richard Mauch.” As we have said, the mittimuses were admissible in evidence to show defendant’s imprisonment. Mention of the two names used by defendant was proper to show that it was indeed the defendant who had been convicted and imprisoned.
2. The court failed to instruct the jury that the evidence of pre-existing convictions could he considered only as proof of imprisonment, and not as proof of criminal character. Although an instruction to this effect was not requested, defendant contends the failure to give one was nevertheless reversible error and cites Askar and Shaw, supra. Our Court said in Askar:
“The burden is upon the prosecutor to show for which of these purposes he seeks to introduce evidence of prior offenses and to show that the purpose is material and relevant to the case being tried. Moreover, once the requisite showing has been made and the evidence admitted, we perceive it to be incumbent upon the trial court, whether or not so requested by the defendant, to instruct the jury immediately that the evidence was admitted for a specific purpose and that they shall consider it only for that purpose.”
The reason for the ruling in Askar and related cases lies in the desirability of avoiding the potential prejudice inhering in evidence of other crimes used to show either “motive, intent, etc.”, or, where a sexual crime is involved, “opportunity, disposition of the parties and intimate relations tending to break down self-respect”. However, the potential prejudice is unavoidable where prison escape is charged. A jury will expect a certain criminal character in any prison inmate. Although a cautionary instruction would have been proper had it been requested, the failure to give it in the absence of a request was not reversible error.
3. The supplemental information is fatally defective because it does not allege a third conviction. Section 13 of the chapter of the criminal code dealing with judgment and sentence provides in relevant part:
“If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, in his discretion, may file a separate or supplemental information in such cause accusing the said person of such previous convictions.”
The supplemental information in the instant case recited the nature, date and place of defendant’s two pre-existing convictions and then alleged “that by-reason of the felony set forth in the information filed herein [and the two pre-existing convictions] Richard Mauch is guilty of the offense of third felony.” Filed, as it was, before defendant was convicted of escape, the supplemental information did not allege a third conviction. Defendant points out that § 13 requires an allegation of second, third or fourth conviction, as the case may be, and contends that without it a supplemental information charging second, third or fourth felony is fatally defective. People v. Gunsell (1951), 331 Mich 105.
Defendant’s reliance on § 13 and People v. Gunsell is misplaced, since both deal with the filing of a supplemental information after conviction. The procedure set forth in § 13 need not be followed when the supplemental information is filed before conviction. In re Brazel (1940), 293 Mich 632; People v. Stratton (1968), 13 Mich App 350. As our Court said in Stratton at 356:
“# * * [Sections 10,11,12 and 13 * * * contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor ‘after conviction’ of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed.” (Emphasis in original.)
Section 12 authorizes the filing of the supplemental information before conviction on the current charge. Since it does, an allegation of third conviction in the supplemental complaint can hardly be said to be required.
The supplemental information specified defendant’s two pre-existing convictions and expressly referred to the information already filed on the third and current charge. Defendant was given full notice of the charge of third felony.
4. The trial court did not exercise its discretion in setting the maximum sentence. Section ll provides that upon a third felony conviction, the maximum sentence shall be “not more than twice the longest term prescribed for a first conviction of the [current] offense or for any lesser term in the discretion of the court.” The maximum term allowed for a first offense of escape is three years, MCLA § 750.193 (Stat Ann 1962 Rev § 28.390), and thus defendant’s maximum sentence of six years (twice the maximum for escape) is within the limits set by §11. However, in imposing the maximum sentence, the trial court stated its belief that the 6-year term was mandatory and therefore the imposition of a lesser maximum term was beyond its authority. From this statement the defendant correctly concludes that the court did not exercise its discretion in setting the maximum sentence.
Implicit in the language of § 11, Ave think, is a requirement that the court exercise its discretion in setting a maximum sentence, even if the maximum sentence ultimately set in any given case equals the maximum alloAved by § 11, that is, twice the longest term prescribed for a first conviction of the current offense. Since the court did not exercise its discre tion, it is necessary to remand defendant for resentencing.
5. That part of the sentence which reflects the third felony conviction must begin to run upon its being imposed. Defendant’s sentence of 2-1/2 to 6 years was ordered to commence upon expiration of the two concurrent sentences he was serving at the time of his escape. Defendant acknowledges that the purpose of the habitual criminal sections is to increase the punishment of a recidivist, see People v. Shotwell (1958), 352 Mich 42, but points out that punishment is to be increased only once, not twice. Since his punishment is increased once by his escape conviction, he argues, the second increase caused by his third felony conviction is contrary to the purpose and intent of the habitual criminal sections and therefore unlawful. That part of his sentence which reflects his third felony conviction must begin to run, if it is to run at all, upon its being imposed.
Defendant’s argument misconceives the nature of his escape conviction. Although it is true that his escape conviction results in a term of imprisonment beyond that imposed under his two pre-existing convictions, that it does so is not alone due to any recidivism on his part, but to the commission of another distinct and separate felony, escape from prison. Consequently, the escape conviction cannot itself be said to increase any pre-existing punishment, at least not within the meaning of the habitual criminal sections.
Section 11 operates to increase the punishment under defendant’s third felony conviction, escape from prison. People v. Shotwell, supra. The statute defining the crime of escape from prison in turn requires that the sentence for escape “be served after the termination, pursuant to law, of any sentence or sentences then being served”. The court was correct in ordering that defendant’s sentence for escape, increased by § 11, commence upon expiration of the sentences he was serving at the time of escape. In re Wilson (1940), 295 Mich 179.
6. The time served under the earlier convictions of escape and third felony should have been credited to defendant. This contention is wholly lacking in merit, since the sentence imposed under these convictions never began to run. Like the present sentence, it was not to begin until expiration of the kidnapping and assault convictions.
Affirmed. Defendant remanded for resentencing.
All concurred.
MCLA § 750.193 (Stat Ann 1962 Bev § 28.390).
MCLA § 769.11 (Stat Ann 1954 Bev § 28.1083).
MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050).
See People v. Donald D. Williams (1965), 2 Mich App 91, 94.
MOLA § 769.13 (Stat Ann 1954 Rev § 28.1085).—Reporter.
MCLA § 769.12 (Stat Ann 1954 Bev § 28.1084).—Reporter.
MCLA § 769.11 (Stat Ann 1954 Rev § 28.1083).—Reporter. | [
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] |
Per Curiam.
Defendant, tried before a judge sitting without a jury, was found guilty of manslaughter, CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553), for the fatal shooting of her husband.
The only issue raised upon appeal is whether there was a miscarriage of justice because a witness, a male nurse, was not subpoenaed by the prosecution to appear at trial. The witness (Brownell) was alleged to have heard the deceased state, before he expired, that the shooting was an accident.
The witness’s name (Brownell) had been indorsed upon the original information, however an amended information did not carry the witness’s name so indorsed. Brownell was not called or offered by the people at trial.
The prosecutor advised the trial court that a res gestae witness had not been called; however, defendant’s attorney immediately waived the witness’s (Brownell) presence for the reason that the deceased’s statement was heard by the court through another witness who had testified for the state.
We have stated over and over again that the objections not raised below will not be reviewed by this Court unless upon the whole record it appears that a miscarriage of justice would result. People v. Willis (1965), 1 Mich App 428; People v. Rimson (1966), 3 Mich App 713; People v. Jackson (1969), 17 Mich App 675.
In the instant case we do not feel that a miscarriage of justice has occurred for the reason that the judge below as the finder of fact heard and considered what the missing witness would have said on the stand by way of another witness. In addition, he apparently based his decision that the shooting was not an accident upon other evidence (the gun had discharged twice) which despite a statement from the victim that the incident was accidental, was sufficient to sustain a finding of guilt beyond a reasonable doubt.
Because no proper objection was raised below, and looking at the evidence on the whole record, we cannot say that there was a miscarriage of justice.
Affirmed. | [
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Per Curiam.
Respondent Holly Township appeals as of right from a judgment of the Tax Tribunal granting tax-exempt status to petitioner Rose Hill Center, Inc., a treatment facility for mentally ill adults. We affirm in part, reverse in part, and remand.
Petitioner is a nonprofit corporation. On August 24, 1990, petitioner acquired a 372-acre parcel in Holly Township and subsequently constructed two residential buildings on it. The buildings are operated as a treatment center for mentally ill adults and are occupied by approximately thirty patients.
In 1993, the property was assessed at $1,516,100. Petitioner appealed the assessment to the township board of review. The board rejected petitioner’s challenge. On June 20, 1993, petitioner filed an appeal of that decision with the Michigan Tax Tribunal. On May 26, 1994, petitioner amended the petition to include a challenge to the 1994 assessment of the property.
On October 27, 1994, the parties submitted a stipulated statement of facts. The parties agreed that the subject property was inspected and licensed as a mental health provider by the Michigan Department of Social Services and that petitioner had applied for classification as a public charitable organization under § 501(c)(3) of the Internal Revenue Code.
In support of its claim of exemption, petitioner argued that it is exempt from property taxes as a hospital or facility used for public health purposes under MCL 211.7r; MSA 7.7(4-o). Respondent contended that petitioner is not operated for public health services because it is not licensed under the Public Health Code and does not provide the type of services typically associated with public health providers. Respondent further asserted that, even assuming that petitioner is operated for public health services, 255 acres of the property are not used in connection with the public health purpose and therefore are subject to tax.
A hearing on petitioner’s claim was held on September 26, 1995. At the conclusion of the hearing, the tribunal took the matter under advisement. On October 23, 1995, the tribunal issued a judgment in favor of petitioner. The tribunal found that the entire parcel is exclusively utilized for public health purposes and is therefore exempt from taxation. Respondent appeals.
i
Respondent first argues that petitioner is not entitled to a tax exemption under MCL 211.7r; MSA 7.7(4-o). Judicial review of a determination by the Tax Tribunal is limited to determining whether the tribunal made an error of law or applied a wrong principle. Const 1963, art 6, § 28; Comcast Cablevision of Sterling Heights, Inc v Sterling Heights, 218 Mich App 8, 11; 553 NW2d 627 (1996). Generally, this Court will defer to the Tax Tribunal’s interpretation of a statute that it is delegated to administer. Maxitrol Co v Dep’t of Treasury, 217 Mich App 366, 370; 551 NW2d 471 (1996). The factual findings of the tribunal are final, provided that they are supported by competent, material, and substantial evidence on the whole record. Comcast, supra.
The Tax Tribunal found that petitioner’s property is exempt from taxation pursuant to MCL 211.7r; MSA 7.7(4-o). The statute provides:
The real estate and building of a clinic erected, financed, occupied, and operated by a nonprofit corporation or by the trustees of health and welfare funds is exempt from taxation under this act, if the funds of the corporation or the trustees are derived solely from payments and contributions under the terms of collective bargaining agreements between employers and representatives of employees for whose use the clinic is maintained. The real estate with the buildings and other property located on the real estate on that acreage, owned and occupied by a nonprofit trust and used for hospital and public health is exempt from taxation under this act, but not including excess acreage not actively utilized for hospital or public health purposes and real estate and dwellings located on that acreage used for dwelling purposes for resident physicians and their families. [MCL 211.7r; MSA 7.7(4-o).]
Statutory interpretation is a question of law subject to review de novo on appeal. Golf Concepts v Rochester Hills, 217 Mich App 21, 26; 550 NW2d 803 (1996). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. Barr v Mount Brighton Inc, 215 Mich App 512, 516-517; 546 NW2d 273 (1996). However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Yaldo v North Pointe Ins Co, 217 Mich App 617, 620-621; 552 NW2d 657 (1996).
In general, tax exemption statutes must be strictly construed in favor of the taxing unit. DeKoning v Dep’t of Treasury, 211 Mich App 359, 361-362; 536 NW2d 231 (1995). However, this rule does not permit a strained construction adverse to the Legislature’s intent. Holland Home v Grand Rapids, 219 Mich App 384, 396; 557 NW2d 118 (1996).
The tribunal found that “Rose Hill Center services are for public health purposes.” The phrase “public health purposes” is not defined in the statute. When, as in this case, a word is not defined in the statute, a court may consult dictionary definitions. Yaldo, supra at 621. The American Heritage Dictionary: Second College Edition defines “public health” as
[t]he art and science of protecting and improving community health by means of preventative medicine, health education, communicable disease control, and the application of the social and sanitary sciences.
In the instant case, the tribunal found that petitioner was engaged in the provision of services to mentally ill patients. These services include psychiatric evaluation and diagnosis, the prescription and dispensation of medication, and rehabilitation and reintegration programs. Petitioner is staffed by a psychiatrist, psychiatric nurses, and social workers and provides twenty-four-hour care to its patients. Petitioner is open to mentally ill adults without regard to race, religion, or sex. Petitioner accepts patients covered by Medicare and Medicaid, as well as by private sources.
After considering these facts, we believe that petitioner can reasonably be considered to be operating a facility for “public health purposes.” We therefore conclude that the Tax Tribunal did not make an error of law or apply a wrong principle. The tribunal’s decision constitutes a reasonable interpretation of the statute and is therefore entitled to deference. See Maxitrol, supra.
Respondent contends that because petitioner is not licensed under the Public Health Code, it is not entitled to the exemption. We disagree. The statute does not contain any language restricting the exemption to facilities licensed under the Public Health Code. If the Legislature had intended such a limitation, it could easily have included such language.
n
Respondent next argues that the tribunal erred in finding that petitioner was entitled to an exemption for all 372 acres of the subject property. Respondent contends that, because only recreational and social activities are performed on the land surrounding the 120-acre central campus, there is insufficient evidence to support the tribunal’s conclusion that the entire parcel is used for public health purposes. Furthermore, respondent asserts that even if the social and recreational activities are for public health purposes, the irregular nature of the patients’ use of the outlying portions of the property requires a finding that it is not actively used in any sense.
At the hearing on this issue, evidence was presented that the 372-acre parcel consists of a central complex of approximately seven residential buildings and a community center. Surrounding this central area are a working farm, pasture, woods, lakes, and marsh areas. Petitioner’s executive director, Ronald Stuursma, testified that most of the patients suffer from chronic mental illness. The farm is run by two employees who are assisted by the patients as part of their treatment program. The patients also assist in caring for the animals and distributing the crops after harvest. The woods, lakes, and marsh areas are used sporadically for recreational activities such as hiking, fishing, swimming, and winter sports. These recreational activities assist the treatment of the patients by providing motivation and exercise and aiding the development of inteipersonai relationships between the residents and staff. Stuursma also testified that the open spaces were useful for dealing with agitated patients, because the staff would send them for walks, alone or accompanied by a staff member, depending on the patient’s condition.
On cross-examination, Stuursma admitted that no formal medical care or treatment is performed outside the buildings. Stuursma also stated that, although the program might not operate in the same manner, it could function solely on the 120 acres serving as the central campus.
In its opinion, the tribunal found that the entire parcel is used for public health purposes “because the property is used exclusively for the care and rehabilitation of its patients.” The tribunal determined that tending to farm animals, working on the farm, and using the surrounding area for recreational activities are all part of the therapy provided. The open spaces are beneficial in treating the patients, and they also provide a buffer between petitioner’s facilities and its neighbors.
In Saginaw General Hosp v Saginaw, 208 Mich App 595; 528 NW2d 805 (1995), this Court addressed whether a freestanding day-care center for the exclusive use and benefit of hospital employees was exempt from taxation under MCL 211.7r; MSA 7.7(4-o). Evidence was presented that the day-care center was necessary to properly staff the hospital because the hospital employees’ unusual schedules precluded utilization of other child-care services. The hospital had concluded that opening the day-care center would reduce employee turnover, absenteeism, and tardiness. Saginaw General Hosp, supra at 596-597. This Court held that in granting a tax exemption to a hospital, only those facilities that are reasonably necessary for the competent operation of the hospital should receive tax-exempt status. Id. at 599. Under this standard, the Saginaw panel held that the daycare center qualified as property used “for hospital or public health purposes.” Id. at 599-601.
From the evidence presented below, it is clear that the entire parcel is beneficial to petitioner in treating its patients. However, the tribunal did not apply the standard set forth in Saginaw General Hosp. Although the entire parcel may be beneficial to petitioner, it is not certain that the entire parcel is reasonably necessary to the performance of petitioner’s public health function. Accordingly, we reverse that part of the tribunal’s judgment finding the entire property exempt from taxation and remand for a determination of what portion of the property is reasonably necessary for the operation of petitioner’s facility.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.
26 USC 501(c)(3).
Petitioner also argued that it was exempt from taxation pursuant to MCL 211.7o; MSA 7.7(41), the exemption for charitable organizations. Because the tribunal found that petitioner was entitled to an exemption under MCL 211.7r; MSA 7.7(4-o), it did not address whether petitioner was entitled to an exemption as a charitable organization. | [
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Griffin, J.
Following a jury trial, defendant was convicted of voluntary manslaughter, MCL 750.321; MSA 28.553, and possessing a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to five to fifteen years’ imprisonment for the manslaughter conviction, to be served consecutively to two years’ imprisonment for the felony-firearm conviction. Defendant appeals as of right.
On appeal, defendant contends that his conviction of voluntary manslaughter should be reversed because the trial court committed error requiring reversal by submitting to the jury a first-degree murder charge that the evidence did not support. Defendant claims that he was denied his right to a fair trial even though the jury rendered a verdict of not guilty with regard to the charge of first-degree murder. We disagree with defendant’s argument. However, we reverse because we are compelled to do so on the basis of the authority of People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975).
In reviewing the sufficiency of the evidence in a criminal case, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Herbert, 444 Mich 466, 473; 511 NW2d 654 (1993); People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992); People v Hammons, 210 Mich App 554, 556; 534 NW2d 183 (1995). To prove first-degree, premeditated murder, the prosecution must establish that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. People v Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992). Premeditation and deliberation require sufficient time to allow the defendant to take a “second look.” People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). These elements may be inferred from circumstances surrounding the killing. Id.
Viewing the evidence in a light most favorable to the prosecution, we find insufficient evidence to establish the elements of premeditation and deliberation. There were no witnesses to the shooting, and the weapon was never found. The only direct evidence linking defendant to the shooting was defendant’s confession that, because of fear inspired when the man who had just robbed him at gunpoint turned to again approach defendant’s vehicle, defendant crouched down and fired his gun through his car window. There was no evidence of a prior relationship between defendant and the victim, or that the victim or anyone else was defendant’s intended target. Under these circumstances, a reasonable factfinder could not find premeditation or conclude that defendant had time to take a “second look” before firing his weapon. Accordingly, the trial court erred in denying defendant’s motion for a directed verdict with regard to the charge of first-degree murder.
Because the jury was permitted to consider a charge unwarranted by the proofs, we must reverse and remand this case for a new trial, People v Vail, supra. However, were we not bound by our Supreme Court’s holding in Vail, we would join the majority of other jurisdictions in rejecting the harsh and unrealistic position that actual prejudice may be presumed by the mere “possibility of a compromise verdict” when a jury considers a charge that is unsupported by the proofs. See, e.g., Howard v United States, 128 US App DC 336, 343; 389 F2d 287 (1967); State v Ward, 569 SW2d 341, 343 (Mo App, 1978). Indeed, the holding in Vail flatly contradicts
“[t]he general rule . . . that, where a crime is divided into degrees, if the court commits error in instructing the jury as to the higher degree of such crime, and they return a verdict of guilty of a lower degree as to which they were properly instructed, the defendant cannot complain.” [State v Schaefer, 170 W Va 649, 654; 295 SE2d 814 (1982), quoting State v McMillan,, 104 W Va 1, 10; 138 SE 732 (1927).]
Accord Commonwealth v Forde, 392 Mass 453, 456; 466 NE2d 510 (1984); Brewer v State, 251 Ark 7, 20; 470 SW2d 581 (1971); State v Horton, 57 NM 257, 259; 258 P2d 371 (1953). See, generally, anno: modem status of law regarding cure of error, in instruction as to one offense, by conviction of higher or lesser offense, 15 ALR4th 118, §§ 3[a], 21-24. In our view,
[i]t is pure fancy to intimate that they [the jurors] agreed upon a manslaughter verdict as a result of a settlement of different positions. Whether or not there was enough evidence to justify submission of the first degree murder charge to the jury is not relevant in ascertaining whether the jury compromised on reaching its result. [State v Christener, 71 NJ 55, 78; 362 A2d 1153 (1976) (Schreiber, J., concurring).]
Additionally, speculating whether the jury compromised, or whether the unwarranted charge affected such compromise
gives the jury far less credit than it deserves. We see ... no theory upon which to base a realistic conclusion that the jury might have compromised its views because of, or was confused and misled by, the mere submission of the first-degree charge for its consideration. [Howard, supra at 343.]
Indeed, where the jury has sense enough to acquit the defendant of an unwarranted murder charge and “convict[] [him] of manslaughter, . . . the jury, by [its] verdict, showed [its] ability to discriminate and to correctly apply the facts to the law as given [it] by the court.” State v Garcia, 19 NM 414, 417; 143 P 1012 (1914); see also State v Cohen, 93 RI 215, 220; 172 A2d 737 (1961). We agree with the above authorities and would adopt their persuasive reasoning were we allowed to do so.
Further, we note that the nonconstitutional error at issue is harmless under our “harmless error” rule because defendant has not sustained his burden of proving that there is “a reasonable probability that the error affected the outcome of the trial.” People v Hubbard, 209 Mich App 234, 243; 530 NW2d 130 (1995), citing with approval People v Hall, 435 Mich 599, 609, n 8; 460 NW2d 520 (1990). See also People v Mateo, 453 Mich 203; 551 NW2d 891 (1996), MCL 769.26; MSA 28.1096, and MCR 2.613.
For these reasons, we urge the Supreme Court to overrule the minority view adopted in Vail and adopt the persuasive position embraced by the majority of other jurisdictions. In view of our disposition, we need not address the remaining issues on appeal.
Reversed and remanded for a new trial. We do not retain jurisdiction.
Bandstra, P.J., concurred.
The jurisdictions that have adopted the majority rule include Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kentucky, Maine, Massachusetts, Mississippi, Missouri, Montana, North Carolina, New Mexico, Oregon, Rhode Island, Tennessee, Utah, Vermont, and West Virginia. Id. See also State v English, 233 Or 500; 378 P2d 997 (1963), and the authorities cited therein.
MCL 769.26; MSA 28.1096 states as follows:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.
MCR 2.613(A) states as follows:
An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.
Only Nebraska, New Jersey, New York, and, arguably, Colorado and Oklahoma are cited in the ALR annotation as having adopted a holding similar to Vail. | [
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Cavanagh, J.
The prosecutor appeals as of right the trial court order on second remand setting aside defendant’s conviction of possession of more than twenty-five grams but less than fifty grams of cocaine, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv), on the basis that a search warrant had been executed improperly. We affirm.
On June 23, 1992, the police attempted to execute a search warrant at defendant’s home. After the police broke down the door leading into the enclosed porch, defendant fired two shots from inside the house. During the subsequent search of defendant’s house, the police found cocaine. Defendant was arrested and charged with possession of more than twenty-five grams but less than fifty grams of cocaine, assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
At a hearing on September 4, 1992, defendant moved to suppress the evidence seized pursuant to the search warrant, or, in the alternative, requested that a hearing be held to determine whether the search warrant had been executed properly under the knock-and-announce statute, MCL 780.656; MSA 28.1259(6). In an order dated that same day, Judge Wendy Baxter denied the motion.
Subsequently, Judge George W. Crockett, III, was assigned to conduct defendant’s bench trial. Judge Crockett issued an order staying proceedings pending an interlocutory appeal of the denial of defendant’s pretrial motions. On January 19, 1993, this Court issued an unpublished order remanding the case for a Walker hearing but denying defendant’s application with regard to all other issues because the panel was not persuaded of the need for immediate appellate review. (Docket No. 156860). On March 22, 1993, this Court, in an unpublished order, denied defendant’s motion for rehearing. (Docket No. 156860). On May 28, 1993, the Supreme Court denied defendant’s application for leave to appeal. 442 Mich 922 (1993). On July 30, 1993, the Supreme Court denied defendant’s motion for reconsideration. Id.
Following a bench trial on remand, defendant was convicted of possession of more than twenty-five grams but less than fifty grams of cocaine. The trial court sentenced defendant to lifetime probation. Defendant, appealed the conviction as of right. This Court, White, P.J., and Bandstra and W. P. Cynar, JJ., remanded for an evidentiary hearing regarding whether the search warrant had been executed properly. People v Ortiz (After Remand), unpublished opinion per curiam of the Court of Appeals, issued June 6, 1995 (Docket No. 174128). The prosecutor’s motion for rehearing was denied in an unpublished order entered August 3, 1995. (Docket No. 174128).
At the evidentiary hearing on second remand, the parties stipulated the admission of the trial testimony of five witnesses: Lois Bettin, Anjanette Myers, Carlos Grace, Paul C. Smith, and Sherrill Kaatz. In addition, defendant and Officer Daniel Dupuis testified at the hearing.
Bettin testified that she lives next door to defendant. On June 23, 1992, Bettin was sitting in her living room, which is adjacent to defendant’s driveway. Bét tin heard a noise that sounded like the slamming of a car door. Before hearing this noise, Bettin did not hear the police identify themselves or state that they had a search warrant. Upon looking out her window, Bettin observed several policemen crouching down around the side of defendant’s house. Bettin did not hear any gunshots.
Myers stated that she lives across the street from defendant. On June 23, 1992, Myers heard a “loud boom noise.” The noise was not preceded by anyone saying “police” or “search warrant.” After hearing the noise, Myers went to the window and saw police at the side of defendant’s house. Myers denied hearing any gunshots before the noise.
Grace testified that he lives three houses down from defendant. On June 23, 1992, he was standing outside, six houses away from defendant’s house, when he saw a van pull up in front of defendant’s house. Grace then saw two officers run to defendant’s door “real fast.” Grace heard a loud noise and saw the police hit defendant’s door with a large object. Grace did not hear the police announce their presence before he heard the noise. Subsequently, Grace heard a second noise and saw the police leave defendant’s porch and take cover.
Smith testified that he lived two houses down from defendant. At the time in question, Smith was standing in his doorway looking for his children. Smith observed a blue van stop in front of defendant’s house. Three or four men jumped out, ran to defendant’s door, and struck it with an object. Smith never heard the men identify themselves as police officers or state that they had a search warrant.
Kaatz testified that she was inside defendant’s house on June 23, 1992. While sitting at the dining room table, Kaatz heard a loud bang coming from defendant’s porch. Before hearing the bang, Kaatz did not hear anyone say “police” or “search warrant.” Following the bang, Kaatz heard gunshots coming from inside the house. After the shots were fired, Kaatz heard the police announce that they had a search warrant.
Defendant testified that on the evening in question, he was talking with Kaatz in his house. The radio and television were not on, and it was quiet in the house. Suddenly, defendant heard a loud noise that sounded like a bomb or an explosion. Defendant stated that it had been his experience that when he was in the dining room, he could hear when people knocked on his porch door, and that when a person on his front porch yelled, he could hear it. Defendant did not hear anyone knock or call out before the noise occurred on the evening in question.
Defendant stated that his porch is enclosed by wood, steel beams, and smoked glass. The door from the porch to the driveway is a solid wood door. The porch door is always kept locked.
Officer Dupuis testified that he works in the narcotics division of the Detroit Police Department. On June 23, 1992, he approached the door to an enclosed porch at defendant’s house with several ,other officers. Dupuis knocked on the door and stated that he was a police officer and had a search warrant. After waiting ten to fifteen seconds, Dupuis forced open the door with a sixty-pound battering ram. Before he reached the inner door of the porch, gunshots were fired, causing the officers to retreat. On cross-examination, Dupuis admitted that he had heard no sounds from inside the house that led him to believe that evidence was being destroyed or someone was trying to escape.
After all the testimony had been heard, the trial court stated:
I think one of the rules of statutory construction is that the language of the legislature in creating a statute is to be given its ordinary meaning, ordinary understanding. The legislature did use the term announce. And Webster’s third, Webster’s New World Dictionary of the American Language, Second College Edition, defines announce as to declare publicly, give notice of formally, proclaim, to say, or tell, to make known the arrival of, to make known through the senses, among other things.
The statute does not say to attempt to make known. It says to announce. And if five persons within earshot and in varying positions could not hear an announcement made, as testified to, it wasn’t an announcement.
No, I think if their presence was not made known to the Defendant until his door had been forced, the statute has not been complied with.
The trial court then granted defendant’s motion to suppress the evidence and set aside defendant’s conviction. Subsequently, the trial court dismissed the case. The prosecutor appeals.
I
The prosecutor argues that the trial court erred in interpreting MCL 780.656; MSA 28.1259(6), the statute governing the breaking of doors and windows in the execution of a search warrant. The statute provides:
The officer to whom a warrant is directed, or any person assisting him, may break any outer or inner door or window of a house or building, or anything therein, in order to execute the warrant, if, after notice of his authority and purpose, he is refused admittance, or when necessary to liberate himself or any person assisting him in execution of the warrant. [MCL 780.656; MSA 28.1259(6).]
This statute is commonly referred to as the “knock- and-announce” statute. See People v Asher, 203 Mich App 621, 623; 513 NW2d 144 (1994), lv den 445 Mich 927 (1994), cert den 515 US 1102 (1995); People v Zuccarini, 172 Mich App 11, 17; 431 NW2d 446 (1988).
On appeal, we review de novo questions of law regarding statutory interpretation. People v Bobek, 217 Mich App 524, 528; 553 NW2d 18 (1996). Our goal in interpreting statutes is to ascertain the intent of the Legislature. People v Burton, 219 Mich App 278, 286; 556 NW2d 201 (1996). The first criterion in determining the Legislature’s intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary. People v Cohen, 217 Mich App 75, 79; 551 NW2d 191 (1996).
The prosecutor argues that the trial court erred in focusing on the meaning of the word “announce,” because that word does not appear in the statute. The trial court was apparently relying on MCL 764.21; MSA 28.880, the knock-and-announce statute governing arrests. The text of MCL 764.21; MSA 28.880 contains the word “announcing,” while MCL 780.656; MSA 28.1259(6) does not.
We agree with the prosecutor that the trial court erred in concentrating on the word “announce,” which is not contained in the text of MCL 780.656; MSA 28.1259(6). However, we conclude that the trial court’s findings indicate that the police did not comply with the requirements of MCL 780.656; MSA 28.1259(6). Where the trial court reaches the right result for the wrong reason, this Court will not reverse. People v Brake, 208 Mich App 233, 242, n 2; 527 NW2d 56 (1994).
In interpreting a statute, a court should look to the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the statute. People v Adair, 452 Mich 473, 479-480; 550 NW2d 505 (1996). The plain language of the statute indicates that its purpose is to ensure that before a search warrant is executed, the police communicate to the occupants of a dwelling that they are present and why. The requirement that officers identify themselves and state their authority and purpose before entering a private residence has its roots in the Fourth Amendment. People v Polidori, 190 Mich App 673, 676; 476 NW2d 482 (1991), lv den 439 Mich 918 (1992), cert den 506 US 905 (1992). The Fourth Amendment, in turn, was based in part on the common-law knock- and-announce rule, under which a law enforcement officer was required to notify a party of his presence and authority, and was permitted to break open the door only in cases where entry was refused. Wilson v Arkansas, 514 US 927, 931-934; 115 S Ct 1914; 131 L Ed 2d 976 (1995). “[T]he common-law rule was justified in part by the belief that announcement generally would avoid ‘the destruction or breaking of any house ... by which great damage and inconvenience might ensue.’ ” Id. at 935-936, quoting Semayne’s Case, 5 Co Rep 91a, 91b; 77 Eng Rep 194, 196 (KB, 1603). However, the courts recognized that in certain circumstances announcement should not be required. See Wilson, supra at 933-936.
Under the plain language of MCL 780.656; MSA 28.1259(6), before breaking doors or windows, a person executing a search warrant must provide “notice of his authority and purpose.” The prosecutor argues that the statute does not require that the occupants of a dwelling actually receive the proffered notice. Thus, the issue presented in this case is what constitutes proper notice. According to Black’s Law Dictionary (6th ed), “notice” means “information, an advice, or written warning, in more or less formal shape, intended to apprise a person of some proceeding in which his interests are involved, or informing him of some fact which it is his right to know and the duty of the notifying party to communicate.”
We hold that the “knock-and-announce” statute requires a person attempting to execute a search warrant to proclaim his presence and purpose in a manner reasonably calculated to provide notice to the occupants under the circumstances. In order to comply with the statute, it is not necessary that the inhabitants of a dwelling actually hear the person’s announcement, as long as the announcement was reasonably calculated to provide notice under the circumstances. Factors that indicate whether an officer’s announcement was reasonably calculated to provide notice under the circumstances include whether the announcement was made with sufficient volume for an average person inside to hear and the time between the announcement and a subsequent forcible entry. See People v Harvey, 38 Mich App 39, 43; 195 NW2d 773 (1972); People v Doane, 33. Mich App 579, 583; 190 NW2d 259 (1971), rev’d on other grounds 387 Mich 608; 198 NW2d 292 (1972). Thus, the police cannot satisfy the statute simply by mumbling “Open up — police” before breaking down the door, but a defendant cannot succeed in suppressing evidence merely by claiming that he did not hear an otherwise proper attempt by the police to notify him of their presence and purpose.
In the instant case, the trial court found that “five persons within earshot and in varying positions could not hear” the police announce their presence and state that they possessed a warrant to search defendant’s house. A trial court’s findings of fact following a suppression hearing will not be disturbed by an appellate court unless the findings are clearly erroneous. People v LoCicero, 453 Mich 496, 500; 556 NW2d 498 (1996). The prosecutor argues that the defense witnesses are not credible; however, questions regarding the credibility of the witnesses are for the trier of fact. People v Velasquez, 189 Mich App 14, 16; 472 NW2d 289 (1991). After reviewing the record, we cannot conclude that the trial court clearly erred in finding that the notice given by the police was not reasonably calculated to provide notice to the occupants under the circumstances and was therefore inadequate.
II
Next, the prosecutor argues that the trial court erred in finding a violation of the knock-andannounee statute because the police broke down the door to defendant’s porch, rather than the door to his living quarters. The prosecutor relies on Harvey, supra. In Harvey, this Court found that the police had complied with the statute. After knocking on the outer screen door of a porch and receiving no response, the police kicked in that door, then knocked on the inner door and shouted “This is the sheriff’s department, this is a raid.” After waiting a few seconds and getting no reaction, the police forced open the inner door. Harvey, supra at 41, 43. This Court explained, “Though the officers failed to comply with the provisions of the pertinent statute prior to breaking in the outer door, a screen door, on a screened-in porch, this is irrelevant because the provisions of the statute were met prior to entry into the living quarters.” Id. at 43. The prosecutor argues that in the present case, unlike Harvey, the police did not have the opportunity to comply with the statute because shots were fired immediately after they broke down the outer door.
We find that Harvey is distinguishable from the present case. In Harvey, the police did not identify themselves until after kicking in a screen door and entering a screened porch. See id. at 41. In contrast, in the present case, the outer door was a wooden door and the porch was completely enclosed. Moreover, the porch door in Harvey could be kicked in, while opening the door to defendant’s porch required a sixty-pound battering ram. We conclude from these facts that defendant had secured his porch in such a way as to make it part of his “living quarters,” see id. at 43, and therefore defendant had a reasonable expectation of privacy from unreasonable governmental intrusion, see People v Malone, 177 Mich App 393, 401; 442 NW2d 658 (1989). Thus, the trial court did not err in finding that the police violated the knock- and-announce statute by breaking down the door to defendant’s porch without providing the occupants with proper notice.
III
Next, the prosecutor argues that because the police did not actually search defendant’s home until approximately an hour after they broke down the door, any violation of the knock-and-announce statute was harmless error. However, because the prosecutor did not make this argument at the evidentiary hearing, it is not preserved for appellate review. See People v Coon, 200 Mich App 244, 247; 503 NW2d 746 (1993). Moreover, although no evidence was presented at the evidentiary hearing regarding the prosecutor’s claim that the search took place an hour after the police broke down the door, it seems reasonable to assume that any delay was caused by the fact that defendant fired several shots at the unknown intruders who were breaking into his home. Because defendant’s actions and the resultant delay were likely a direct result of the violation of the knock-and-announce statute, we cannot conclude the delay excuses the police’s failure to comply with the statute.
IV
Next, the prosecutor argues that this Court erred in finding that defendant was entitled to an evidentiary hearing. At the outset, we conclude that this argument is barred by the law of the case doctrine. Under the law of the case doctrine, an appellate court’s determination of law will not be differently decided on a subsequent appeal in the same case if the facts remain materially the same. People v Kozyra, 219 Mich App 422, 433; 556 NW2d 512 (1996). Accordingly, we could not overrule the prior panel’s finding that defendant was entitled to an evidentiary hearing even if we considered it to be erroneous, which is not the case.
V
Finally, the prosecutor argues that application of the exclusionary rule is too harsh a remedy. In Polidori, supra at 677, this Court held that when the method of entry violates the knock-and-announce statute, the exclusionary rule may come into play if the Fourth Amendment standard of reasonableness is also offended. Strict compliance with the statute is excused where the police have a basis to conclude that evidence will be destroyed or where the police have reason to believe that compliance with the statutory requirements would be a useless gesture. Id.
The prosecutor claims that in Wilson, supra, which came after this Court’s decision in Polidori, the United States Supreme Court held that exclusion is not a constitutionally compelled remedy where the unreasonableness of the search stems from the failure to knock and announce before entering. We disagree. In Wilson, the Court specifically stated that “the common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.” Wilson, supra at 930. The Court specifically declined to address whether failure to comply with the knock- and-announce principle mandated application of the exclusionary rule because the issue had not been addressed by the lower court and was not within the narrow issue on which the Court had granted certiorari. See id. at 937, n 4. We decline to view the Court’s refusal to address the application of the exclusionary rule to violations of the knock-and-announce principle as an indication of support for the prosecutor’s argument.
The prosecutor further maintains that the exclusionary rule should not be applied because the police actions were justified by exigent circumstances. The prosecutor first argues that “in situations involving a search warrant for a situs involving the narcotic trade, exigent circumstances are the rule.” However, this position was recently rejected by the United States Supreme Court in Richards v Wisconsin, 520 US _; 117 S Ct 1416; 137 L Ed 2d 615 (1997). In Richards, a unanimous Court held that the Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for an entire category of criminal activity, specifically felony drug investigations. 117 S Ct 1418. The Court stated:
[T]he fact that felony dmg investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. [117 S Ct 1421.]
The prosecutor also argues that specific exigent circumstances existed in the present case, citing the fact that gunshots were fired and the possibility that defendant would destroy evidence. We find no merit to this argument. As already discussed, it is undisputed that defendant fired the gunshots only after the police broke down the outer door. Thus, there is no evidence of any exigent circumstances that would justify noncompliance with the knock-and-announce statute. Furthermore, Dupuis testified that nothing occurred during the execution of the search warrant that led him to believe that evidence was being destroyed. We find that the conduct of the police in this case violates the Fourth Amendment standard of reasonableness. See Polidori, supra at 677. Accordingly, we conclude that the trial court did not err in excluding the evidence seized from defendant’ house.
Affirmed.
Sawyer, P.J., concurred.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Likewise, in this Court’s prior opinion in this case, the panel stated that defendant was entitled to an evidentiary hearing regarding whether MCL 764.21; MSA 28.880 had been violated. However, the panel went on to cite People v Polidori, 190 Mich App 673; 476 NW2d 482 (1991), lv den 439 Mich 918 (1992), cert den 506 US 905 (1992), a case that discusses only MCL 780.656; MSA 28.1259(6). We therefore conclude that the panel’s reference to MCL 764.21; MSA 28.880 was an inadvertent error. We believe, and both parties acknowledge, that MCL 780.656; MSA 28.1259(6) governs this case.
MCL 764.21; MSA 28.880 provides:
A private person, when making an arrest for a felony committed in his or her presence, or a peace officer or federal law enforcement officer, when maldng an arrest with a warrant or when making a felony arrest without a warrant as authorized by law, may break open an inner or outer door of a building in which the person to be arrested is located or is reasonably believed to be located if, after announcing his or her purpose, he or she is refused admittance.
In acquitting defendant of the charge of assault with intent to murder, the trial court stated: “The manner and circumstances of the firing in this Court’s view do not warrant charging the Defendant with any criminal intent in the firing of that weapon.”
In fact, we do not find the prior panel’s decision to be erroneous. The prosecutor contends that defendant was not denied an evidentiary hearing before trial. However, at a September 4, 1992, hearing regarding defendant’s pretrial motions, Judge Baxter acknowledged defendant’s desire to address the issue whether the police complied with the knock-and-announce statute before entering defendant’s house. Although Judge Baxter never specifically denied defendant’s motion for an evidentiary hearing, the lower court record contains an order dated September 4, 1992, denying defendant’s motion to suppress evidence. Accordingly, defendant’s motion was effectively denied.
The prosecutor also argues that the prior panel erred in failing to address Judge Crockett’s discussion of the knock-and-announce issue at trial. However, while in the interest of thoroughness the panel might have noted that five witnesses testified at trial regarding the knock-and-announce issue, the panel nevertheless did not err because Judge Crockett specifically declined to address the question whether the statute had been violated. The prosecutor acknowledged this fact at the evidentiary hearing. | [
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Per Curiam.
Following a jury trial, defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, obstruction of justice, MCL 750.505; MSA 28.773, extortion, MCL 750.213; MSA 28.410, and conspiracy to commit aggravated assault, MCL 750.81a; MSA 28.276(1); MCL 750.157a; MSA 28.354(1). She was sentenced to concurrent prison terms of 5 to 10 years for the conviction of assault with intent to do great bodily harm, 2 to 5 years for the conviction of obstrac tion of justice, 7V2 to 20 years for the conviction of extortion, and 12 months for the conviction of conspiracy to commit aggravated assault. Defendant appeals as of right. We affirm defendant’s convictions, but remand for articulation of the reasons for the sentence imposed for the extortion conviction or for resentencing.
This case arises from an incident in which the victim was beaten by defendant, Tricia Lynn Alcock, and Liz Ontiveros. Some days before the incident, the victim and some of her friends had stopped at a gas station to get gasoline, and defendant and some girls pulled alongside them in a car, “jumped out and came up to” the victim, and made some remarks to her. The victim and her friends drove away.
On a subsequent day, while the victim was walking home from high school, defendant, Ontiveros, Nicky Rivera, and an unidentified girl passed by the victim in a car. The victim had previously heard that the girls in the car were going to “jump” her, so she changed direction and walked along another street. The car turned, drove past the victim, and stopped in front of the victim. Defendant, Ontiveros, and the unidentified girl got out of the car. According to the victim, defendant said that someone told her that the victim had called her a “bitch” and that she was going to “jump” the victim. Defendant then punched the victim in the face, the victim fell, and defendant, Ontiveros, and the unidentified girl began punching and kicking the victim. Moments after the assailants stopped beat ing the victim, a police officer approached the victim and took her complaint regarding the incident. The other girls told the police officer that the victim had thrown something at their car. No arrests were made.
Days later, the victim, Sharon Stueller, and Cynthia Mann were stopped in a car waiting for a Mend, Germayne Kelly. After Kelly got into the car, the victim looked around and saw defendant, Alcock, and Natalie Garza standing on a comer. Defendant and Alcock ran toward the car. Stueller was unable to restart the car to drive away. Defendant and Alcock were eventually able to enter the car. According to Mann, Alcock hit the victim in the face more than twice. The victim did not hit defendant or Alcock, but attempted to stay in the car. The victim indicated that defendant and Alcock grabbed her arms and hair and pulled her out of the car. While the victim was on the ground, defendant, Alcock, and Garza kicked and punched the victim in the face, head, arms, and chest. At some point, Alcock and Garza moved away while defendant held the victim by her hair and said “Are you done? Are you done?” Defendant then punched the victim’s face twice more. Defendant told the victim to leave and pushed her back toward the car. The victim testified that, during the beating, defendant indicated that the victim had “snitched” to the police about her.
Mann corroborated the victim’s account of the fight. Mann also testified that defendant told the victim that she would kill her if she said anything else to the police. After the fight, Mann observed that the victim’s face was swollen and her eyes weré black and blue, puffy, and bloodshot. Stueller confirmed that a white female and a Mexican female ran toward the car, pulled the victim out of the car, and kicked the victim in the head, but Stueller could not identify them. Stueller did hear one of the attackers threaten to kill the victim if she called the police again. Stueller observed that the victim was bruised and that the victim’s eyes “were bleeding blood.”
Detective Michael Van Horn of the Michigan State Police saw the victim two days following the incident and described her appearance as follows:
On her chest, on her wrist, and basically her right eye was pretty much swollen shut. There was a lot of blood in the white part of the eye. There was bruises up on the top of her forehead, and I could see little red bumps where it looked like her hair had been pulled out from the roots on her head. A lot of facial swelling. There was still some blood — dry blood in her nose — in her nasal area.
I
Defendant argues that her extortion conviction should be reversed because the extortion statute does not contemplate the behavior for which she was convicted. The extortion charge related to defendant’s threat of harm, at the conclusion of the last beating, that defendant would kill the victim if she said anything else to the police (apparently about the previous assault). Statutory interpretation is a question of law that is reviewed de novo. Rose Hill Center, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997); Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992).
The extortion statute, MCL 750.213; MSA 28.410, provides in pertinent part:
Any person who shall. . . orally . . . maliciously threaten any injury to the person . . . with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years
When a defendant is charged with extortion arising out of a compelled action or omission, a conviction may be secured upon the presentation of proof of the existence of a threat of immediate, continuing, or future harm. People v Hubbard (After Remand), 217 Mich App 459, 485; 552 NW2d 493 (1996); People v Fobb, 145 Mich App 786, 788-790; 378 NW2d 600 (1985).
In People v Atcher, 65 Mich App 734, 738-739; 238 NW2d 389 (1975), this Court affirmed the defendant’s conviction for extortion where the defendant had attempted to prevent a witness from testifying in a misdemeanor assault and battery case against a third party. The decision in Atcher did not disapprove of the prosecutor’s emphasizing the seriousness of the defendant’s action of intimidating a witness, notwithstanding the fact that the testimony that the defendant sought to discourage was related to misdemeanor assault and battery. Id. at 737.
Contrary to defendant’s claim, threatening a victim with harm if the victim reports a crime to the police is not a “minor threat.” Rather, we conclude that the demand by defendant that the victim not talk to the police was an offense contemplated by the extortion statute because the act demanded was of such consequence or seriousness that the statute should apply.
n
Defendant also contends that her convictions of extortion and obstruction of justice violate federal and state prohibitions against double jeopardy. We review de novo questions of law, including double jeopardy issues and the constitutionality of statutes. People v White, 212 Mich App 298, 304-305; 536 NW2d 876 (1995).
The double jeopardy provision of the United States Constitution, US Const, Am V, and its counterpart in the Michigan Constitution, Const 1963, art 1, § 15, protect citizens from suffering multiple punishments and successive prosecutions for the same offense. People v Harding, 443 Mich 693, 699; 506 NW2d 482 (1993). The issue whether two convictions involve the same offense for purposes of the protection against multiple punishment is solely one of legislative intent. People v Sturgis, 427 Mich 392, 400; 397 NW2d 783 (1986). Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishment. People v Robideau, 419 Mich 458, 487; 355 NW2d 592 (1984).
In People v Harrington, 194 Mich App 424, 429; 487 NW2d 479 (1992), this Court addressed this issue in examining the assault statute and Idle weapon statute. The Harrington Court explained:
In the assault statute, the emphasis is on punishing crimes injurious to other people, regardless of whether a. weapon is used to effect the injury. The focus of the weapon statute is on the carrying of the weapon. While the facts of this case make it appear that the two statutes punish the same behavior or protect the same social norm, such a conclusion is not borne out in all situations. As noted above, the assault statute does not require the possession of a firearm or dangerous weapon, while the weapon statute depends upon such possession. Also, the assault statute requires the commission of an actual assault, while the weapon statute requires only the intent to use the possessed weapon illegally against another, not a completed assault. The two statutes are neither hierarchical nor cumulative. For these reasons, we conclude that defendant’s double jeopardy challenge fails under both constitutions.
Similarly, in this case, punishments for extortion and obstruction of justice address different societal norms, although they arise from the same events in the present case. The extortion statute, MCL 750.213; MSA 28.410, punishes coercive behavior directed against individuals, regardless of whether such behavior occurs in the context of interfering in the orderly administration of justice. The crime of obstruction of justice, on the other hand, is concerned with interference in the orderly administration of justice, and is a crime against the public in general. See People v Thomas, 438 Mich-448, 455; 475 NW2d 288 (1991). The criminalization of extortion and of obstruction of justice thus have different aims. Therefore, punishment for both convictions does not violate prohibitions of double jeopardy.
III
Defendant also argues that the trial court erred in denying defense counsel’s motion for a directed verdict of acquittal regarding the charge of assault with intent to do great bodily harm. A directed verdict of acquittal is appropriate only if, considering all the evidence in the light most favorable to the prosecution, no rational trier of fact could find that the essential elements of the crime charged were proved beyond a reasonable doubt. People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997); People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993); Wolfe, supra at 524-526. The court may not determine the weight of the evidence or the credibility of the witnesses. Mehall, supra; People v Herbert, 444 Mich 466, 474; 511 NW2d 654 (1993). Rather, questions regarding the credibility of witnesses are left to the trier of fact. People v Palmer, 392 Mich 370, 375; 220 NW2d 393 (1974); People v Velasquez, 189 Mich App 14, 16; 472 NW2d 289 (1991).
The elements of assault with intent to do great bodily harm less than murder are: (1) an attempt or offer with force or violence to do corporal hurt to another, (2) coupled with an intent to do great bodily harm less than murder. People v Smith, 217 Mich 669, 673; 187 NW 304 (1922); People v Mitchell, 149 Mich App 36, 38; 385 NW2d 717 (1986); MCL 750.84; MSA 28.279.
Defendant claims that there was insufficient evidence of the necessary intent and alleges that the injuries sustained by the victim could not support an inference that defendant acted with an intent to inflict great bodily harm. We disagree. There was overwhelming evidence that defendant, along with her cohorts, beat and kicked the victim in the face, head, arms, and chest. The emergency room physician who treated the victim testified that the victim’s injuries were serious. He further testified that kicks or blows with the fist to the head or body could cause serious injury. The doctor’s assertion regarding the seriousness of the victim’s injuries may appear questionable in light of the fact that treatment was limited to prescribing lyienol, after which the victim was released from the hospital. This testimony, nevertheless, was sufficient to give rise to an inference of the necessary intent. Moreover, it would have been improper for the trial court to determine the weight, of the evidence or the credibility of the physician’s testimony in resolving the motion for a directed verdict. Herbert, supra. The trial court did not err in denying the motion for a directed verdict and submitting to the jury the charge of assault with intent to do great bodily harm.
IV
Defendant also argues that the trial abused its discretion in denying defense counsel’s motion for an adjournment. A trial court’s decision whether to grant a continuance is reviewed for an abuse of discretion. People v Williams, 386 Mich 565, 575, 578; 194 NW2d 337(1972).
The Williams Court held that a trial court abused its discretion by denying the defense attorney’s motion to withdraw from the case and by failing to grant the defendant a continuance and the opportu nity to obtain another attorney in circumstances where
1) defendant was asserting a constitutional right — the right to counsel; 2) he had a legitimate reason for asserting this right — an irreconcilable bona fide dispute with his attorney over whether to call his alibi witnesses; 3) he was not guilty of negligence; and 4) the trial court was incorrect in stating that defendant had caused the trial to be adjourned several times .... [Id. at 578.]
The decision in People v Wilson, 397 Mich 76, 81; 243 NW2d 257 (1976), set forth the additional requirement that a defendant must be able to demonstrate prejudice as a result of the trial court’s abuse of discretion.
Here, defendant contends that if her attorney had obtained an adjournment, she would have discovered case law relevant to her motion for a directed verdict on the charge of assault with intent to do great bodily harm. We, however, previously concluded that the trial court did not err in denying defendant’s motion for a directed verdict. Moreover, defendant has failed to cite any persuasive case law on appeal to support her position that she was entitled to a directed verdict. The trial court did not abuse its discretion in denying defense counsel’s motion for an adjournment.
V
Defendant’s remaining arguments concern the validity of her sentences. She first contends that the trial court failed to articulate sufficient reasons for the sentence imposed for the extortion conviction. To facilitate appellate review, the sentencing court must articulate on the record the criteria considered and the reasons for the sentence imposed. People v Flem ing, 428 Mich 408, 428; 410 NW2d 266 (1987); People v Sandlin, 179 Mich App 540, 542; 446 NW2d 301 (1989).
In imposing sentence for the conviction of extortion, the trial court stated:
As to Count III, extortion, it is the sentence of this Court that she serve no less than to no more than 20 years in a state prison.
There are no sentencing guidelines on Counts II [obstruction of justice], III [extortion], and IV [conspiracy to assault with intent to do great bodily harm]. The Court feels that the sentences on those are proportional to the circumstances of the offense and the offender.
Although the trial court asserted that the sentence was imposed because it was proportional to the circumstances of the offense and the offender, the court did not offer any explanation of why the particular sentence imposed was appropriate under the circumstances of this case. Because the trial court did not explain the criteria that it considered, we do not have an adequate record to review this issue. We therefore remand for an articulation of the reasons for the sentence imposed or for resentencing. People v Triplett, 432 Mich 568, 569; 442 NW2d 622 (1989).
Defendant also argues that the trial court’s scoring of the sentencing guidelines for the conviction of assault with intent to do great bodily harm was improper because the extortion conviction carried the highest maximum penalty of the crimes for which defendant was convicted. The crime of extortion is not addressed in the sentencing guidelines. Defendant correctly asserts that the sentencing guidelines can not be extended to sentencing for a crime not addressed by the guidelines. People v Laube, 155 Mich App 415, 417; 399 NW2d 545 (1986). Because the trial court did not state its reasons for the sentence imposed for defendant’s extortion conviction, it is unclear whether the court utilized the guidelines’ recommendation regarding the conviction for assault with intent to do great bodily harm as a benchmark for the sentence imposed for extortion.
Defendant further argues that her minimum sentence of Tk years’ imprisonment for the extortion conviction is excessive and disproportionate. The extortion statute provides for a maximum penalty of twenty years’ imprisonment, MCL 750.213; MSA 28.410, while the statute for assault with intent to do great bodily harm provides for a maximum penalty of ten years, MCL 750.84; MSA 28.279. Defendant contends that, notwithstanding that extortion carries a longer sentence than assault with intent to do great bodily harm, “based on the evidence produced at trial the assault was arguably the more serious offense” in the present case. Defendant cites no authority for this argument, but relies on the fact that the threat giving rise to the extortion conviction related to the prosecution of a misdemeanor. As previously discussed, however, extortion may properly be viewed as a serious crime worthy of severe punishment even when the threat relates to interfering with the prosecution of a misdemeanor. Nevertheless, because the trial court did not, articulate its reasons for the imposition of the sentence for the extortion conviction, we do not have an adequate basis for reviewing this argument.
Defendant also contends that because the convictions of extortion and obstruction of justice were based on the same conduct, the court’s imposition of a minimum sentence for the extortion conviction that was almost four times longer than that imposed for the obstruction of justice conviction renders the sentence for the extortion conviction excessive and disproportionate. This issue is waived because defendant failed to cite any authority. People v Weathersby, 204 Mich App 98, 113; 514 NW2d 493 (1994). We nevertheless conclude that defendant’s argument is without merit. See Harrington, supra.
Affirmed, but remanded for articulation of the reasons for the sentence imposed for the extortion conviction or for resentencing. We do not retain jurisdiction.
Trida Lynn Alcock was tried with defendant and convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and conspiracy to commit aggravated assault, MCL 750.81a; MSA 28.276(1). Alcock has an appeal pending in Docket No. 186905.
In People v Fobb, supra at 788-790, the victim was forced by the defendant to execute a note. The Fobb Court noted that the note gave the defendant no apparent pecuniary advantage and did not seem to have any rationale or importance. Rather, it seemed to have been obtained merely to satisfy some unexplained whimsy on the part of the defendant. The Fobb Court found that the act of writing the note essentially amounted to a minor threat that the extortion statute did not contemplate. That is not the case here. | [
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Per Curiam.
Defendant pleaded guilty of escape from prison, MCL 750.193; MSA 28.390, and of being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084, and he was sentenced to four to eight years’ imprisonment. Defendant’s plea was conditioned on his right to appeal the court’s denial of his motion to quash the amended supplemental information. We reverse defendant’s plea-based convictions and remand pursuant to MCR 6.312.
I
If a prosecutor wishes to file a supplemental information alleging that a defendant is an habitual offender, he must do so “promptly.” People v Fountain, 407 Mich 96, 98; 282 NW2d 168 (1979). In defining “promptly,” our Supreme Court has stated:
The purpose of requiring a prosecutor to proceed “promptly” to file the supplemental information is to provide the accused with notice, at an early stage in the proceedings, of the potential consequences should the accused be convicted of the underlying offense. We conclude that a standard which would find a filing on the day of trial to suffice is an inadequate one. We recognize that any “rule” which we might establish is subject to the criticism that it is arbitrary. However, we believe that the imposition of a “rule” is preferable to the ad hoc decision-making which has been the practice heretofore.
Accordingly, we hold that a supplemental information is filed “promptly” if it is filed not more than 14 days after the defendant is arraigned in circuit court (or has waived arraignment) on the information charging the underlying felony, or before trial if the defendant is tried within that 14-day period. We believe that such a rule allows the prosecutor sufficient time to make a decision concerning supplementation while at the same time providing notice at an early stage of the proceedings to the defendant of the potential consequences of conviction of the underlying felony. [People v Shelton, 412 Mich 565, 569; 315 NW2d 537 (1982).]
The Legislature has seen fit to enlarge the time within which a prosecutor may file an habitual offender information to twenty-one days:
(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under section 10, 11, or 12 of this chapter, by filing a written notice of his or her intent to do so within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall list the prior conviction or convictions that will or may be relied upon for purposes of sentence enhancement. The notice shall be filed with the court and served upon the defendant or his or her attorney within the time provided in subsection (1). [MCL 769.13; MSA 28.1085, as amended by 1994 PA 110.]
As this Court has recently held, this statute reflects a bright-line test for determining whether a prosecutor has filed a supplemental information “promptly.” People v Bollinger, 224 Mich App 491, 492; 569 NW2d 646 (1997).
n
In the present case, it is without question that the prosecutor promptly filed a supplemental information charging defendant with being an habitual offender, second offense. MCL 769.10; MSA 28.1082. Approximately six weeks later, however, the prosecutor filed an amended supplemental information alleging two additional prior convictions, thus changing the supplemental information to habitual offender, fourth offense. MCL 769.12; MSA 28.1084. The question thus presented is whether the prosecution may amend an otherwise timely supplemental information outside the period set forth in MCL 769.13(1); MSA 28.1085(1) to allege additional prior convictions. We hold that it may not.
A
MCL 769.13; MSA 28.1085 does not provide for amendment of a supplemental information. However, MCL 767.76; MSA 28.1016 generally allows amendment of an indictment as a matter of the. court’s discretion, as long as the defendant does not suffer prejudice. We thus turn to the rules of statutory construction for guidance.
Both statutes relate to criminal informations and thus are in pari materia and must be read together as one law. People v Denio, 454 Mich 691, 702; 564 NW2d 13 (1997). If the two statutes lend themselves to a construction that avoids conflict, that construction should control. House Speaker v State Administrative Bd, 441 Mich 547, 568-569; 495 NW2d 539 (1993).
Moreover, when two statutes or provisions conflict and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. National Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 549; 563 NW2d 65 (1997). The specific statute is treated as an exception to the general one. People v Rogers, 438 Mich 602, 616; 475 NW2d 717 (1991). Similarly, a more recently enacted law has precedence. Id. These rules are particularly persuasive where, as here, one statute is both the more specific and the more recent. Id.
B
Here, the controlling statute, MCL 769.13; MSA 28.1085, requires the prosecutor to give notice to a defendant within twenty-one days of arraignment of the prior convictions to be relied on for purposes of sentence enhancement. Reading this statute in harmony with MCL 767.76, MSA 28.1016, we hold that the supplemental information may be amended outside the statutory period only to the extent that the proposed amendment does not relate to the specific requirements of MCL 769.13; MSA 28.1085, i.e., the amendment may not relate to additional prior convictions not included in the timely filed supplemental information. To hold otherwise would be to permit prosecutors to avoid making the necessary “prompt” decision regarding the level of supplementation, if any, they wish to pursue and would materially alter the “potential consequences” to the accused of conviction or plea. Shelton, supra at 569.
In the present case, the prosecutor’s amendment alleged two additional prior convictions, thus subjecting defendant to a potential life sentence, rather than a seven-year sentence enhancement as in the original supplemental information. See MCL 769.10, 769.12; MSA 28.1082, 28.1084. Because this amendment involved a substantial element of the notice required by MCL 769.13; MSA 28.1085, the circuit court erred in denying defendant’s motion to quash the amended information.
m
Because of our resolution of the first issue, defendant’s challenge to his sentence is moot. We note, however, that a defendant who pleads guilty with knowledge of the sentence agrees that the sentence is proportionate to the offense and the offender. People v Cobbs, 443 Mich 276, 285; 505 NW2d 208 (1993).
iv
Defendant’s guilty plea and his plea-based convictions are vacated, and the amended supplemental information is dismissed. This matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
We find further support for our holding in existing case law from our Supreme Court. For example, in Fountain, supra, the Court held that the only exception to a prompt filing of a supplemental information is where more time is needed to verify out-of-state convictions. Id. at 98-99. In the case before us, the prosecutor explained that he did not discover the two additional convictions when he originally reviewed defendant’s criminal record. This explanation is insufficient to justify noncompliance with the provisions of MCL 769.13; MSA 28.1085.
This case is thus distinguishable from People v Manning, 163 Mich App 641; 415 NW2d 1 (1987), where the Court upheld an amendment of a supplemental information outside the fourteen-day rule set forth in Shelton, supra. In Manning, the amended supplemental information corrected an error in the specific convictions that formed the basis of the habitual offender, fourth offense charge. However, the amendment did not elevate the level of the supplemental charge. | [
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Per Curiam.
Plaintiffs appeal as of right the trial court’s order granting summary disposition for defendant. Plaintiffs sought to prevent defendant from arbitrating numerous claims relating to invest- merits in limited partnerships, claiming that the commencement of the arbitration proceeding was untimely pursuant to the National Association of Securities Dealers (NASD) Code of Arbitration Procedure. In this case, we are asked to decide whether the six-year eligibility period for arbitration contained in former § 15 of the NASD code is subject to tolling on the basis of a claim of fraudulent concealment. We conclude that it is not and, thus, reverse the trial court’s order granting summary disposition to defendant.
Defendant invested a large amount of money in limited partnerships through plaintiff William Furest. Five of defendant’s investments were made more than six years before defendant commenced a securities arbitration proceeding before the NASD. In filing for arbitration, defendant claimed that she had been fraudulently induced into investing in the limited partnerships. Plaintiffs filed a declaratory action in the circuit court, arguing that former § 15 of the NASD code prevented arbitration of the five claims because the investments were made more than six years before the commencement of the arbitration. Defendant moved for summary disposition, claiming that she was entitled to arbitration because, even though the investments were made more than six years before the date that she commenced the arbitration proceedings, the six-year time limit set forth in former § 15 of the NASD code was tolled because of fraudulent concealment. The trial court granted summary disposition in favor of defendant, holding that the six-year limitation period could be tolled for fraudulent concealment and that defendant had sufficiently alleged fraudulent concealment to toll the limitation period. In reaching its decision that the six-year limitation period could be tolled, the trial court relied upon several federal cases: Roney & Co v Kassab, 981 F2d 894 (CA 6, 1992), Dean Witter Reynolds, Inc v McCoy, 995 F2d 649 (CA 6, 1993) (McCoy I), and Davis v Keyes, 859 F Supp 290 (ED Mich, 1994).
The provision at issue in this case, former § 15 of the NASD code, stated:
No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim, or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction.
Although there are no Michigan precedents on point, the Sixth Circuit Court of Appeals has recently addressed the exact issue presented here and held that the six-year eligibility period for bringing securities claims to arbitration is not subject to tolling. Ohio Co v Nemecek, 98 F3d 234 (CA 6, 1996). We find the holding in Nemecek to be persuasive in this case.
In Nemecek, the Sixth Circuit Court of Appeals analyzed the cases relied upon by the trial court in the present case and determined that the decisions had been misinterpreted and that Rule 603 of the New York Stock Exchange (NYSE), which is equivalent to former § 15 of the NASD code, is not subject to tolling. As argued by defendant in the present case, the inves tors in Nemecek, supra at 235, also made the argument that the six-year eligibility period was tolled because of fraudulent concealment. The court in Nemecek, id. at 235-236, first noted that no federal circuit court had ever held that Rule 603 of the NYSE was subject to tolling and that two circuit courts of appeals, those for the third and seventh circuits, had held that the identical provision of former § 15 of the NASD code was not subject to tolling. The court then stated that Rule 603 and § 15 were interchangeable because the provisions were identical in test and application. Nemecek, supra at 236. The court adopted the reasoning of the Seventh Circuit Court of Appeals in Edward D Jones & Co v Sorrells, 957 F2d 509, 512-513 (CA 7, 1992), which held that § 15 is an eligibility requirement, not a statute of limitations, and cannot be tolled. Nemecek, supra at 236. The court recognized that “a separate section of the NASD Code, Section 18, provided the only instance in which ‘the Section 15 six-year bar [is] lifted.’ ” Id., quoting Sorrells, supra at 513. Former § 18 of the NASD code tolled the six-year eligibility period when the “dispute, claim, or controversy” is before a court of competent jurisdiction. Nemecek, supra. Because the only exception to the eligibility period was set out in the NASD code, the court reasoned that no further exceptions were warranted. Id.
The court in Nemecek, supra at 237, also adopted the reasoning of PaineWebber, Inc v Hartmann, 921 F2d 507, 511 (CA 3, 1990), that “ ‘[l]ike any contract, an agreement to arbitrate may be limited in its substantive scope in an almost infinite variety of ways.’ ” Limiting the time within which arbitration may take place is a substantive limitation. The Sixth Circuit Court of Appeals concluded:
[W]e conclude, as the Hartmann court did, that Rule 603 is a substantive temporal limitation on the parties’ agreement to contract and as such is not subject to equitable tolling. To rule otherwise not only would contravene Hartmann, Sorrells, and [PaineWebber, Inc v] Hofmann[984 F2d 1372 (CA 3, 1993)], but also would thwart the intent of the parties’ arbitration agreement which ... we cannot do: “While Congress was no doubt aware that the [Federal Arbitration] Act would encourage the expeditious resolution of disputes, its passage ‘was motivated, first and foremost, by a congressional desire to enforce agreements into which parties had entered.’ ” [Nemecek, supra at 237.]
In reaching its decision that § 15 could not be tolled, the Sixth Circuit Court of Appeals also noted that the six-year eligibility period contained in § 15 was more generous than MCL 451.810(e); MSA 19.776(410)(e), the Michigan statute barring securities fraud claims filed more than four years after the contract of sale. Nemecek, supra at 237.
We find the above federal precedents to be persuasive and conclude that the six-year eligibility period found in former § 15 of the NASD code cannot be tolled on the basis of a claim of fraudulent concealment. The arbitration agreement at issue in this case is a contract. See Ehresman v Bultynck & Co, PC, 203 Mich App 350, 353; 511 NW2d 724 (1994). A clear contract that does not contravene public policy must be enforced as written. Fitch v State Farm Fire & Casualty Co, 211 Mich App 468, 471; 536 NW2d 273 (1995). In this case, defendant agreed to be bound by the NASD code, and it is clear that the contract provision regarding arbitration intended to limit the time within which parties may submit to arbitration. That limitation is not contrary to public policy because it is more generous than the limitation provided by state statute.
We also conclude that the six-year eligibility period of former § 15 began to run at the time the investment purchases were made, rather than, as argued by defendant, when defendant decided that the purchases were no longer in her best interest. Dean Witter Reynolds, Inc v McCoy, 853 F Supp 1023, 1030 (ED Tenn, 1994), aff'd 70 F3d 1271 (CA 6, 1995) (McCoy II) (for purposes of § 15 of the NASD code, “the occurrence or event” giving rise to the act or dispute, claim, or controversy is the date of the investment); see, also, Sorrells, supra at 512 (claims ineligible for arbitration because more than six years had elapsed since the date the investment was made). We agree with the court in McCoy II, supra at 1030-1031, that “[t]he date of the occurrence or event does not under any circumstances depend on the date when the aggrieved investor first discovers that he or she has suffered a financial loss.”
The purpose of the six-year period in former § 15 was to prevent the submission of stale disputes to arbitration. Id. at 1030. Allowing investors to wait until they suffer a financial loss and then to file a stale claim for arbitration more than six years after the date the investment was made would circumvent the purpose of § 15. Id. Furthermore, if the limited partnership investments were too speculative and not in the best interests of defendant, then the investments were not suitable on the dates that the investments were purchased. Id.
In summary, we hold that former § 15 of the NASD code is not a statute of limitations that can be tolled on the basis of a claim of fraudulent concealment, but rather is a contractual eligibility provision that cannot be tolled, except during a period where the subject matter of the dispute to be arbitrated was the subject of a case before a court of competent jurisdiction. Furthermore, the six-year eligibility period of former § 15 of the NASD code began to run at the time the investment purchases were made. Because the six-year provision cannot be tolled in this case, the investments defendant made more than six years before the arbitration was requested are not subject to arbitration.
In light of our disposition of the above issues, we need not address whether the trial court erred in concluding that defendant’s allegations were sufficient to state a valid fraudulent concealment claim. We reverse the trial court’s order granting summary disposition for defendant and remand so that an order granting summary disposition in favor of plaintiffs can be entered.
It appears that § 15 of the nasd code has been renumbered as Rule 10304. No substantive changes were made to the provision when the renumbering occurred.
See, also, McCoy I, supra at 651 (Rule 603 of the nyse and § 15 of the NASD code are identical in both text and application).
The court in Nemecek, supra at 236, also relied on PaineWebber, Inc v Hofmann, 984 F2d 1372 (CA 3, 1993), in concluding that the six-year eligibility period for bringing securities claims to arbitration is not subject to tolling. The Court in Hofmann, id. at 1381, concluded that “when the stated cause of action is patently nothing more than an attempt to toll the six year period, the court must eiyoin the arbitration of that claim.”
It appears that § 18 of the nasd code has been renumbered as Rule 10307. No substantive changes were made to the provision when the renumbering occurred. | [
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Holbrook, Jr., J.
Felicia R. Sheppard appeals by leave granted from a decision and report of the Crime Victims Compensation Board (cvcb) denying her compensation claim. We reverse and remand.
Appellant was the minor daughter of Wayman Adams. Adams was robbed and murdered while selling drugs in May 1993, and appellant filed a claim with the cvcb shortly thereafter. In August 1994, the board denied appellant’s claim on the ground that “[t]he Victim contributed substantially to the infliction of the injury. ...” Upon further inquiry by appellant regarding the basis of the board’s decision, an eviden tiary hearing was held in June 1995. On August 31, 1995, the board issued a decision and report affirming its earlier decision. We granted appellant’s application for leave to appeal, pursuant to MCL 18.358; MSA 3.372(8).
The CVCB was created and empowered by 1976 PA 223, becoming effective on March 31, 1977. MCL 18.351 et seq.-, MSA 3.372(1) et seq. Section 4(1) of the act identifies persons who are eligible for compensation awards, including “[a] surviving . . . child ... of a victim of a crime who died as a direct result of the crime.” MCL 18.354(1); MSA 3.372(4)(1). Section 11(5) of the act discusses various aspects of the award process and provides in relevant part:
The board shall determine whether the claimant contributed to the infliction of his or her injury and shall reduce the amount of the award or reject the claim altogether, in accordance with the determination. [MCL 18.361(5); MSA 3.372(H)(5). ]
It was under this statutory provision that the cvcb denied appellant’s claim for compensation.
In reviewing a decision of an administrative agency, such as the cvcb, this Court must hold a decision unlawful and set it aside if substantial rights of the petitioner have been prejudiced because the decision, among other things, violates the constitution or a statute or is affected by substantial and material errors of law. MCL 24.306(1)(a) and (f); MSA 3.560(206)(1)(a) and (f); Barker Bros Constr v Bureau of Safety & Regulation, 212 Mich App 132, 136; 536 NW2d 845 (1995). In this case, we reverse the cvcb’s decision because it contravenes a federal funding statute.
Pursuant to the federal Victims of Crime Act of 1984 (voca), 42 USC 10601 et seq., Michigan’s crime victim compensation program receives forty percent of its funding from the federal government. 42 USC 10602(a)(1). In 1988, Congress amended the voca to require that federally funded state programs comply with certain mandates. The mandate important for our purposes is found in 42 USC 10602(b)(7):
(b) A crime victim compensation program is an eligible crime victim compensation program for the purposes of this section if—
(7) such program does not, except pursuant to rules issued by the program to prevent unjust enrichment of the offender, deny compensation to any victim because of that victim’s familial relationship to the offender, or because of the sharing of a residence by the victim and the offender. . . .
While the apparent reasoning behind the mandate was to ensure that victims of domestic violence and drunken driving were not excluded from the program merely because a family member was an offender, the actual language of the mandate expresses Congress’ intent that, in any case where the claimant is a family member of or shares a residence with an offender, the state compensation program must balance the goals of compensating innocent familial claimants and preventing unjust enrichment of the offender. Indeed, in adopting final program guidelines to assist state programs in rule promulgation, the Department of Justice has indicated that “[t]he rules relating to unjust enrichment should be applicable to all claims for compensation although it is recognized that domestic violence cases have the greatest potential for unjust enrichment.” Dep’t of Justice, Final Program Guidelines, Victims of Crime Act Victim Compensation Grant Program, 62 Fed Reg 7050, 7056 (1997) (emphasis added). Thus, although the facts of this case do not involve domestic violence or drunken driving, the CVCB must still utilize the congressional balancing test in evaluating appellant’s claim for compensation.
Notably, 42 USC 10602(b)(7) precludes denial of such claims “except pursuant to rules issued by the program to prevent unjust enrichment of the offender.” Michigan’s CVCB has explicit authority to promulgate rules under MCL 18.353(1)(a); MSA 3.372(3)(1)(a), yet none of its general rules — 1983 AACS, R 18.351 through 18.367 — pertains to the balancing test set out by Congress.
Here, the claimant was denied compensation because her father was a contributing victim. By applying an absolute rule under MCL 18.361(5); MSA 3.372(H)(5) that claimants should be denied compensation merely because of their family relationship to the contributing victim, the cvcb acted contrary to congressional mandates. Accordingly, we reverse and remand this matter to the cvcb for reevaluation of appellant’s claim in light of 42 USC 10602(b)(7) and its concomitant balancing test.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Mackenzie, P.J., concurred.
Appellant turned eighteen years old on November 21, 1995.
MCL 18.361(5); MSA 3.372(11)(5) was amended by 1996 PA 519, effective January 13, 1997, and now provides in subsection 6 that “[t]he commission shall determine whether the victim’s misconduct contributed to his or her injury and shall reduce the amount of the award or reject the claim altogether, in accordance with the determination.”
See 134 Cong Rec S 17301 (daily ed. October 21, 1988), where the following statement of Senator Byrd was printed into the record:
Mr. Metzenbaum. Mr. President, the drug bill before the senate today reauthorizes and expands the victims of crime act of 1984. I wholeheartedly support this reauthorization, and am especially pleased that it includes language I suggested to require states to offer compensation to victims of domestic violence and drunk driving.
This new victims compensation language amends section 1403(b) of the victims of crime act by requiring state victim compensation programs to make available compensation benefits to victims of domestic violence and drunk driving. The provision also prohibits victim compensation programs from denying compensation benefits to victims because of a familial relationship or because the victim lived with the offender at the time of the crime.
Some victim compensation programs have supported “household or family exclusions” because they fear an offender might somehow benefit from compensation received by the crime victim. In order to address these concerns, crime victim compensation programs are permitted by this provision to issue guidelines that would prevent the unjust enrichment of the offender. Crime victim compensation programs, domestic violence victims, and victim advocates alike share a common interest in preventing unjust enrichment of the offender.
One way that state compensation programs are successfully balancing the goals of making compensation benefits available to battered women and preventing the unjust enrichment of the offender is to utilize third party payments. By paying medical and other compensable bills directly, the programs need not worry that the offender will somehow benefit from the compensation award to the victim.
The attorney general’s task force on family violence argues that the “legal response to family violence must be guided primarily by the nature of the abusive act, not the relationship between the victim and the abuser.” Crime victim compensation programs can greatly assist in furthering this goal by treating domestic violence claims as compensable crimes and viewing domestic violence as it would other forms o'f criminal conduct.
See Dep’t of Justice, Final Program Guidelines, supra, 62 Fed Reg 7056-7057:
9. Unjust Enrichment. Except pursuant to rules issued by the compensation program to prevent unjust enrichment of the offender, the state cannot deny compensation to any victim because of that victim’s familial relationship to the offender, or because of the sharing of a residence by the victim and the offender.
Unjust enrichment, as the basis for denying crime victims compensation, must be based upon written rules issued by the state crime victims compensation program. “Rules” mean either written policies or directives developed and distributed by state crime victim compensation programs or rules adopted by legislative or administrative bodies. Such rules cannot have the effect of denying compensation to a substantial percentage of domestic violence victims. The rules relating to unjust enrichment should be applicable to all claims for compensation although it is recognized that domestic violence cases have the greatest potential for unjust enrichment.
hi general, programs must balance the goals of maldng compensation benefits available to victims and preventing unjust enrich ment of offenders. State programs are strongly encouraged to work with domestic violence coalitions and representatives to this end.
In developing rules, the states are encouraged to consider the following:
a. Legal responsibilities of the offender to the victim under the laws of the state and collateral resources available to the victim from the offender. For example, legal responsibilities may include court-ordered restitution or requirements for spouse and/or family support under the domestic or marital property laws of the state. Collateral resources may include insurance or pension benefits available to the offender to cover the costs incurred by the victim as a result of the crime. However, as with other crimes, victims of domestic violence should not be penalized when collateral sources of payment are not viable, e.g., when the offender refuses to, or cannot, pay restitution or other civil judgments within a reasonable period of time or when the offender otherwise impedes direct or third party (i.e., insurance) payments.
b. Payments to victims of domestic violence which benefit offenders in only a minimal or inconsequential manner would not be considered unjust enrichment. To deny payments, in some instances, could serve to further victimize the claimant. For example, denial of medical or dental expenses solely because the offender has legal responsibility for the charges, but is unwilling, or unable to pay them, could result in the victim’s inability to receive treatment.
c. Consultation with social services and other concerned governmental entities, as well as with private organizations that support and advocate on behalf of domestic violence victims.
d. The special needs of child victims of criminal violence especially when the perpetrator was the parent who may or may not have lived in the same residence. | [
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] |
Young, J.
In this action involving deed restrictions, defendants appeal as of right an order granting injunctive relief to plaintiffs and requiring defendants to remove their house from defendants’ property. We affirm.
This appeal marks the parties’ third appearance before this Court regarding the subject property. This dispute began over eight years ago, when defendants Warren and Faye Smith purchased property and began to build their home upon it. Defendants concede that they built their home on the property despite two deed restrictions that prohibited this con struction. This case illustrates the folly of gambling on the prospect that Michigan’s judicial system will ignore and fail to enforce the property rights of others. Defendants’ gamble has resulted in the unfortunate outcome that they must now tear down the home that they built.
Inasmuch as the previous opinions issued by this Court adequately set forth the undisputed facts, we only briefly revisit facts pertinent to this case. In 1988, defendants purchased one-half of a lakeshore lot in a residential subdivision. A home owned by third parties already existed on the other half of this lot. Defendants began construction of their home in March 1989. The deed to defendants’ property did not contain restrictions that appeared on deeds to the other lots in the subdivision.
Plaintiffs Donald and Arlene Webb and Keith Thur-low owned lots adjacent to defendants’ lot. Plaintiffs anticipated that the construction of defendants’ home would violate both the subdivision’s negative covenants and the township’s zoning ordinances. The subdivision covenants at issue stated: “No building or dwelling shall be placed closer than 20 feet from the front lot line, and not more than one building shall be used for dwelling purposes on each lot.” Plaintiffs also believed that defendants’ home would partially block their view of the lake. The township refused to take legal action against defendants because it had issued the building permit. In April 1989, plaintiffs filed suit to force defendants to remove their home.
After a bench trial in May 1989, the court denied plaintiffs’ request for a permanent injunction and granted judgment to defendants. The court found that the restrictions did not operate as negative reciprocal easements because defendants had no actual notice of them. Also, the court ruled that the township’s ordinances would be unreasonable and confiscatory if applied to defendants’ property. Upon plaintiffs’ timely appeal, this Court concluded in 1991 that defendants had constructive notice of the restrictions. We then reversed and remanded the case for a redetermination of whether defendants’ home violated the reciprocal negative easements.
On remand, in 1992, the trial court again granted judgment to defendants, ruling that the house did not violate the reciprocal negative easements. The court determined that the term “lot” denoted a parcel as conveyed, not as originally platted. The court interpreted the term “front lot line” to denote the waterline as opposed to the survey line.
In its 1994 opinion, Webb v Smith (After Remand), 204 Mich App 564; 516 NW2d 124 (1994), this Court ruled that defendants’ home did not comply with the front lot line restriction because defendants had measured from the waterline, not the survey line. Importantly, this Court also held that defendant’s house directly violated the restriction that permitted only one dwelling per lot. This Court reversed and remanded the case to the trial court to impose the appropriate equitable or legal remedy.
On second remand, after an evidentiary hearing, the trial court, in 1995, ruled that defendants’ lot was subject to the one dwelling per lot restriction, stating that “plaintiffs’ [sic] had a right to expect that no dwelling would ever rest upon the defendants’ lot.” The court rejected defendants’ argument that the violation did not cause substantial injury, noting that plaintiffs had suffered losses of view, light, and privacy. The court added: “When one considers that plaintiffs have a right to an empty lot next door, it becomes very difficult to argue that their injury is not substantial.” The court also rejected the defendants’ argument that the plaintiffs’ request for the injunction should be denied because the restrictions’ purposes of privacy and aesthetics could not be accomplished because the neighborhood conditions had changed. The court ordered defendants to remove their house from the lot. Defendants appeal.
On appeal, defendants attempt to revisit the issue of their notice of the restrictions. They state in their appellate brief that neither they nor their builder had any knowledge of the restrictions at the time of construction. This argument particularly is interesting given that, on the next page of their brief, defendants admit that only the foundation and framing had been completed when the trial court issued its first decision in May 1989. That defendants continue to argue that they were without notice defies logic. Defendants testified that they had learned of the deed restrictions on April 1, 1989, well before the contractor had finished building. Although the trial court first ruled in defendants’ favor, plaintiffs immediately appealed that ruling. Therefore, defendants were on notice of the restrictions and of plaintiffs’ appeal before construction of their home was complete. They may not now argue that they built their home in good faith and as a result of an “honest mistake.”
Additionally, this Court is bound by the law of the case on this issue. An earlier panel of this Court ruled that defendants had constructive notice of the restrictions:
The trial judge concluded that the defendants did not have actual notice of the restrictions. We agree. However, they did have constructive notice, as the restrictions could be found in the majority of the deeds of the other subdivision lots. Contrary to defendants’ contention, in order to constitute constructive notice, case law does not require an additional finding of uniform development or circumstances. In some instances, it may be an additional persuasive factor.
The trial judge committed clear error when ruling that the defendants lacked constructive notice. . . . [Webb v Smith, unpublished opinion per curiam of the Court of Appeals, issued May 8, 1991 (Docket No. 117920).]
Defendants vigorously assert that this Court is not bound to follow the law of the case doctrine with regard to this issue. We disagree.
Under the law of the case doctrine, an appellate court ruling on a particular issue binds the appellate court and all lower tribunals with regard to that issue. MS Development, Inc v Auto Plaza of Woodhaven (After Remand), 220 Mich App 540, 548; 560 NW2d 62 (1996). The law of the case mandates that a court may not decide a legal question differently where the facts remain materially the same. McNees v Cedar Springs Stamping Co (After Remand), 219 Mich App 217, 222; 555 NW2d 481 (1996). The doctrine applies to questions specifically decided in an earlier decision and to questions necessarily determined to arrive at that decision. MS Development, supra at 548. The rationale supporting the doctrine is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on rehearing. McNees, supra at 222. Two exceptions to the doctrine exist: (1) when the decision would preclude the independent review of constitutional facts and (2) when there has been an intervening change of law. MS Development, supra at 548, n 6. Because neither exception applies in this case, and as this Court specifically decided the notice issue in its earlier opinion, the law of the case doctrine constrains us from revisiting the issue.
Defendants also contend that the circuit court committed error requiring reversal in not considering damages as a potential remedy in this case. Defendants offer no authority to support their contention that the court was obliged to contemplate damages as an alternative remedy. A party may not leave it to this Court to search for authority to sustain or reject the party’s position. Magee v Magee, 218 Mich App 158, 161; 553 NW2d 363 (1996).
Defendants next argue that the trial court committed error requiring reversal in failing to apply a balancing of the equities analysis. We disagree. This Court reviews equitable actions under a de novo standard. We review for clear error the findings of fact supporting the decision. Sackett v Atyeo, 217 Mich App 676, 680; 552 NW2d 536 (1996); Mitchell v Dahlberg, 215 Mich App 718, 727; 547 NW2d 74 (1996).
Initially, we note that a negative easement is a valuable property right. Austin v Van Horn, 245 Mich 344, 346; 222 NW 721 (1929). Further, public policy favors use restrictions in residential deeds. Rofe v Robinson (On Second Remand), 126 Mich App 151, 157; 336 NW2d 778 (1983). The judiciary’s policy is to protect property owners who have complied with the deed restrictions. Id. Restrictive covenants protect property values and “ ‘aesthetic characteristics considered to be essential constituents of a family environment.’ ” Id. (citation omitted).
Michigan courts generally enforce valid restrictions by injunction. Cooper v Kovan, 349 Mich 520, 530; 84 NW2d 859 (1957). Moreover, courts typically do not consider the parties’ respective damages, as is illustrated by the case law that follows. Owners may enforce negative easements regardless of the extent of the owners’ damages. When enforcing a negative easement, “it is wholly immaterial to what extent any other lot owner may be injured by the forbidden use.” Austin, supra at 346. The economic damages suffered by the landowner seeking to avoid the restriction do not, by themselves, justify a lifting of the restrictions. Rofe v Robinson, 415 Mich 345, 350; 329 NW2d 704 (1982). Because courts regularly enforce injunctions based on valid restrictions and because the parties’ damages are immaterial, the circuit court did not err in failing to apply a balancing test.
In Cooper, supra at 530, however, our Supreme Court set forth three equitable exceptions to the general enforcement rule: (1) technical violations and absence of substantial injury, (2) changed conditions, and (3) limitations and laches. The third exception, limitations and laches, is not at issue in this case. Defendants challenge the restrictions under the remaining two exceptions as discussed below.
First, defendants argue that the trial court committed error requiring reversal in enjoining defendants’ violations because the violations were purely technical and resulted in no substantial harm to plaintiffs. We disagree. As noted, although courts generally will enforce valid restrictions, an equitable exception to that rule occurs when a restriction is technically violated and no substantial injury results. Cooper, supra at 530. Because no Michigan court has defined a “technical violation” in this context, we adopt the definition in Camelot Citizens Ass’n v Stevens, 329 So 2d 847 (La App, 1976), which characterized a technical violation of a negative covenant as a “slight deviation” or a violation that “ ‘can in no wise, we think, add to or take from the objects and purposes of the general scheme of development . . . .’’’Id. at 850 (citation omitted).
Defendants’ house, built on a half-lot where no house was allowed, presents more than a “slight deviation” from the terms of the covenants. Courts give effect to the instrument as a whole when interpreting restrictive covenants. Rofe, supra, 126 Mich App 157. If any doubt arises surrounding the meaning of the restrictions the court must consider the subdivider’s intention and purpose. Id. The restriction clearly permits only one dwelling per lot. Defendants’ house detracted from the covenants’ stated purposes of regulating construction to guarantee a level of privacy and aesthetic enjoyment to the subdivision’s landowners. Further, testimony reflected that plaintiffs’ property was impaired because defendants’ house obscured their view of the lake and that the resulting damage amounted to at least $5,500. Thus, the trial court correctly held that plaintiffs’ harm was substantial.
Second, defendants maintain that the trial court erred in enjoining defendants’ violations because conditions had changed in the subdivision so as to make enforcement of the covenants inequitable. We disagree. A change in neighborhood conditions presents another equitable exception to the enforcement of a restriction. Cooper, supra at 530. The evidence in this case did not establish that the covenants’ purposes could no longer be accomplished. Although defendants rely on testimony regarding the general growth of the area, such testimony is insufficient to excuse a covenant violation. Id. at 531-532. Indeed, our Supreme Court noted that if something more than general growth was not required, it “would place all residential restrictions in substantial jeopardy.” Id. at 532. See, also, Parcells v Burton, 20 Mich App 457, 462-463; 174 NW2d 151 (1969).
Finally, defendants allege that pervasive view blockage by other structures around the lake has prevented the achievement of the covenants’ purposes. Defendants do not argue that any other homes violate the restrictions: they only vaguely assert that docks, porches, and gazebos in the subdivision constitute violations. Defendants do not cite the lower court record and a review of the record does not reveal facts regarding other structures on the lake that allegedly violate the covenants. We thus decline to address the argument. Harkins v Dep’t of Natural Resources, 206 Mich App 317, 323; 520 NW2d 653 (1994). Further, the case that defendants cite in support of their argument, Gamble v Hannigan, 38 Mich App 500; 196 NW2d 807 (1972), is distinguishable. In Gamble, only a portion of the defendant’s porch, not her entire home, was set back insufficiently from the front lot line. Also, the restriction of only “one dwelling per lot” in this case was not at issue in Gamble.
The order requiring defendants to demolish their home seems harsh; nonetheless, we point out that the applicable deed restrictions were readily ascertainable. Further, as noted above, defendants were aware of the restrictions within weeks of the initiation of construction. They continued with the construction in defiance of the restrictions and in the face of plaintiffs’ appeal to this Court. Defendants thus assumed the risk that a court might ultimately order them to remove their home, which we are bound to do under the prevailing case law.
An earlier panel of this Court aptly summed up this case:
We note that there is at least some indication that defendants improvidently continued with construction of their home with full knowledge of the nature of the dispute at hand. In that regard, defendants did so at their own peril. [Webb, supra, 204 Mich App 573.]
Although we are legally bound to the result we announce in this opinion, the parties still have an opportunity to reach a private agreement more palatable to each side that does not require the removal of defendants’ home. However unfortunate the result, this case has traversed the appellate stairway three times since 1991 and it is time for this dispute to be put to rest.
Affirmed. Plaintiffs, being the prevailing party, may tax costs pursuant to MCR 7.219.
Circuit judge, sitting on the Court of Appeals by assignment.
See Webb v Smith, unpublished opinion per curiam of the Court of Appeals, issued May 8, 1991 (Docket No. 117920), and Webb v Smith (After Remand), 204 Mich App 564; 516 NW2d 124 (1994).
Although he was named in the original complaint for injunctive relief, Mr. Thurlow is no longer a party to this action.
Also, the cases defendants rely on for a balancing test analysis, Grand Haven Twp v Brummel, 87 Mich App 442; 274 NW2d 814 (1978), and Lemmon v Wineland, 255 Mich 90; 237 NW 527 (1931), involve only setback requirements. In this case, the setback restriction does not stand alone; defendants also must comply with the “one dwelling per lot” restriction not at issue in the cited cases. | [
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Connor, J.
Defendant appeals as of right from a judgment for plaintiff in the amount of $220,480, plus interest, costs, and attorney fees, following a jury trial. The basis of plaintiffs case was that defendant had installed a defective part in the controller that monitored plaintiffs furnace. We affirm.
Joseph Krupp and his wife owned plaintiff corporation, which manufactured compact metal parts from powdered metal by heating the parts in a large furnace. Inside plaintiffs furnace was a temperature sensor called a thermocouple that worked with a microprocessor to enable a person to ascertain the internal temperature of the furnace. After speaking with a service and repair agent for defendant, Joseph Krupp arranged for the agent to change the thermocouple from an "S” range card to a "W” range card, because the "W” card worked at higher temperatures and would allow processing of lower-alloy steels.
In May of 1985, the agent installed the "W” card and replaced the microprocessor in plaintiffs furnace. The agent gave Krupp a customer service invoice for the parts, which included warranties and disclaimers. The invoice was signed by Joseph Krupp and dated May 23, 1985. Plaintiff immediately began to experience problems with the controller’s accuracy in the form of erroneous temperature readings. As a result of the furnace being too hot or not hot enough, a larger percentage of the parts produced were too brittle and weak to be used.
Plaintiffs problems did not abate until December of 1986, when defendant’s agent removed the controller in order to repair it. A different range card and a temporary controller were installed, and in the spring of 1988, the agent returned plaintiff’s repaired controller and also replaced the input/output (i/o) board. The agent opined that the i/o board had been the problem all along. Plaintiff experienced no further problems with the controller. However, by 1987, one of plaintiff’s chief customers had ceased buying parts from plaintiff because of poor quality.
At trial, the trial court presented SJI2d 140.44 and SJI2d 140.45 to the jury. On appeal, defendant argues that remand is necessary because the trial court should have decided whether the warranty language on the customer service invoice was conspicuous or unconscionable and the court erred in submitting the issues to the jury. We find that while it appears the trial court erred in submitting the issues of conspicuousness and unconscionability to the jury, the error was harmless and does not require reversal.
SJI2d 140.44 and SJI2d 140.45 suggest that the issue of conspicuousness is for the jury to determine. However, MCL 440.1201(10); MSA 19.1201(10) states that the decision is for the court. Trial judges have made this determination even in jury trials. See Latimer v William Mueller & Son, Inc, 149 Mich App 620, 635; 386 NW2d 618 (1986); Mallory v Conida Warehouses, Inc, 134 Mich App 28, 32; 350 NW2d 825 (1984).
MCL 440.2302; MSA 19.2302 explains the options available to the trial court where the court "as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made.” Subsection 3 of the Uniform Commercial Code (ucc) Comment accompanying that statute states:
The present section is addressed to the court, and the decision is to be made by it. The commercial evidence [of unconspionability or lack thereof] referred to in subsection (2) is for the court’s consideration, not the jury’s. Only the agreement which results from the court’s action on these matters is to be submitted to the general triers of the facts.
We are satisfied that the trial court should have determined whether the warranty language is either conspicuous or unconscionable. However, because we find that the language of the warranty was not conspicuous and could not have been applied in this case, we decline to reverse.
A term or clause is conspicuous "when it is so written that a reasonable person against whom it is to operate ought to have noticed it.” MCL 440.1201(10); MSA 19.1201(10). The statute directs that a printed heading in capital letters or language printed in larger or contrasting type or color is conspicuous. Id.
The warranty language on the customer service invoice is printed at the bottom of the front and on the back of the form. The portion of the warranty that appears on the front of the invoice is at the bottom in small print. The exculpatory language, which appears on the back of the invoice in the body of text, states:
With exception of the 12 month warranty, SET FORTH ABOVE, THE COMPANY MAKES NO EXPRESS WARRANTIES, NO WARRANTY OF MERCHANTABILITY AND NO WARRANTIES WHICH EXTEND BEYOND THE description on the face, hereof. In no event will the company be liable for indirect, special or consequential damages of any nature whatsoever.
While some of the relevant language is capitalized, the pivotal statement of limitation that "[i]n no event will the company be liable for indirect, special or consequential damages of any nature whatsoever” is not capitalized. Furthermore, to become aware that there is language on the back of the form containing terms and conditions that are incorporated into the contract, the reader must notice the words, "The Standard Terms and Conditions on the reverse side are a part hereof,” which appear in small italicized print at the bottom of the front of the invoice. We do not believe that a reasonable person ought to be held to have noticed the exculpatory language.
Moreover, because plaintiff was deprived of its furnace for eighteen months and the furnace was not completely fixed for three years, the warranty failed in its essential purpose. MCL 440.2719; MSA 19.2719. Even where a valid limitation of liability in a warranty exists, a buyer is entitled to pursue other remedies where the seller takes too long to complete the repairs or replacements promised in the warranty. See King v Taylor Chrysler-Plymouth, Inc, 184 Mich App 204, 213; 457 NW2d 42 (1990); Kelynack v Yamaha Motor Corp, USA, 152 Mich App 105, 112; 394 NW2d 17 (1986).
We find defendant’s remaining issues to be without merit. The evidence presented by plaintiff was sufficient to support its claim that the component parts sold by defendant were defective. Plaintiff did not begin experiencing difficulty until defendant’s agent installed the "W” range card in 1985. When a different range card was installed in December of 1986, the problems subsided. In addition, the evidence casts doubt on the claim by defendant’s agent that the i/o board was ever replaced. Because the question of defective parts was one of credibility and weight, it was properly left for the jury to decide. Teodorescu v Bushnell, Gage, Reizen & Byington (On Remand), 201 Mich App 260, 264; 506 NW2d 275 (1993).
We also find that plaintiffs proofs regarding proximate cause were sufficient to submit the issue of future damages to the jury. Id. The general manager from Keo Cutters, one of plaintiff’s chief customers, testified that one reason for cessation of business with plaintiff was the poor quality of the parts being supplied by plaintiff sometime after 1985. Testimony also showed that in November of 1985, plaintiff began receiving telephone calls from Keo personnel complaining about the poor quality of the parts. In light of the evidence, we believe the conclusion that the defective parts were a proximate cause of plaintiff’s loss of Keo’s business is a natural inference. Because the jury could logically reach this conclusion, the trial court properly allowed the issue to go to the jury. Dedes v South Lyon Community Schools, 199 Mich App 385, 390; 502 NW2d 720 (1993), rev’d on other grounds sub nom Dedes v Asch, 446 Mich 99 (1994).
Defendant’s claim regarding the statute of limitations is moot because the jury found in favor of plaintiff with regard to both the contract theory and the negligence theory, and the trial court entered judgment with regard to the contract theory alone. In Neibarger v Universal Cooperatives, Inc, 439 Mich 512, 527-528; 486 NW2d 612 (1992), decided one year after the judgment in the present case, the Supreme Court held that where the loss caused by a defective product is economic, the ucc provides the only remedy. Pursuant to Neibarger, plaintiff’s losses were clearly economic and within the contemplation of the parties. However, the trial court correctly recognized that the ucc, with its four-year period of limitation, governs this case. Because the jury awarded damages with regard to both the contract and the negligence theories, its verdict is proper. The trial court ruled that the contract claim was determinative and merged the negligence claim into the contract claim to avoid duplicating damages. Accordingly, defendant’s arguments regarding the statute of limitations for the negligence claim are without merit.
Defendant has failed to cite any authority for the proposition that plaintiff waived its negligence claim by not moving for judgttient notwithstanding the verdict. Therefore, defendant has abandoned this issue. Tringali v Lal, 164 Mich App 299, 306; 416 NW2d 117 (1987).
Finally, we find the trial court’s entry of judgment was proper and in accordance with the law. Contrary to defendant’s position, there was no clerical error involving the verdict forms. As such, if there was an error on the part of the jury, it was one involving the thought processes of the jurors and, therefore, one not subject to review. Ledbetter v Brown City Savings Bank, 141 Mich App 692, 701; 368 NW2d 257 (1985).
Affirmed.
The trial court’s instructions included the following:
The seller claims that the implied warranty of merchantability was changed or eliminated. The implied warranty of merchantability may be changed or eliminated by specific language if it includes the word "merchantability” and if it is conspicuous.
The implied warranty is unchanged, even if there is specific language changing it, if the circumstances make such a change unconscionable or if there would be no real remedy for the buyer without the implied warranty.
The seller has the burden of proving that the implied warranty of merchantability was changed or eliminated.
In addition, we note that 1 Anderson, Uniform Commercial Code (3d ed), § 1-201:61, p 214, provides that while the issue of conspicuousness is a question of law for the court to decide, submission of the question to the jury is not "fundamental” error and does not warrant reversal when no objection was made to such submission at the time of the trial. Defendant did not raise an objection with respect to this issue.
We believe the argument could also be made that, because the language only appears on an invoice for goods and services, the limitation was not bargained for and did not become part of the bargain. However, the issue is not presented adequately in the parties’ briefs and, consequently, we decline to address it. Richmond Twp v Erbes, 195 Mich App 210, 220; 489 NW2d 504 (1992), and Sargent v Browning-Ferris Industries, 167 Mich App 29, 32-33; 421 NW2d 563 (1988). | [
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Per Curiam.
Following a consolidated jury trial, defendant was convicted of two counts of felonious assault. MCL 750.82; MSA 28.277. He was then convicted of being an habitual offender, third offense. MCL 769.11; MSA 28.1083. The court sentenced him to two concurrent sentences of two to eight years’ imprisonment. Defendant appeals as of right. He claims misconduct by the prosecutor relating to comments during closing argument and error by the trial court in the jury instructions. He asserts that a res gestae witness was not timely endorsed and should not have been permitted to testify. We reverse on the basis of misconduct by the prosecutor.
I
A
The test of misconduct by the prosecutor is whether a defendant was denied a fair and impartial trial. People v Foster, 175 Mich App 311, 317; 437 NW2d 395 (1989). Issues of misconduct by a prosecutor are decided case by case. The reviewing court must examine the pertinent portion of the record and evaluate a prosecutor’s remarks in context. People v Legrone, 205 Mich App 77, 82; 517 NW2d 270 (1994).
A prosecutor may not vouch for the credibility of a witness. People v Erb, 48 Mich App 622, 631; 211 NW2d 51 (1973). A prosecutor may not suggest that the government has some special knowledge that the witness is testifying truthfully. People v Bahoda, 202 Mich App 214, 217; 508 NW2d 170 (1993), lv gtd 445 Mich 880 (1994). A prosecutor may not ask the jury to convict a defendant on the basis of the prosecutor’s personal knowledge or the prestige of the office or that of the police. People v Ignofo, 315 Mich 626, 631-636; 24 NW2d 514 (1946); Bahoda, supra, p 218; People v Fuqua, 146 Mich App 250, 254; 379 NW2d 442 (1985).
In this case, defendant asserts that the prosecutor both improperly vouched for the credibility of witnesses and improperly vouched for defendant’s guilt during his closing argument. We agree.
B
During closing argument, the prosecutor repeatedly and improperly vouched for the people’s witnesses. Excerpts from his argument, which form the basis for reversal, are set out below. We emphasize that it is the cumulative effect of the statements, rather than any isolated statement, that leads us to conclude that reversal is required. We cite portions of his closing argument because examples of the type and frequency of statements that persuade this Court that misconduct has occurred are frequently omitted from its opinions.
In this case, the prosecutor made the following comments during closing argument:
None of the People’s witnesses saw any tire iron. The police officer saw no tire iron and he’s totally neutral. He just went there and answered the call.
Now, there’s Mr. Fisher, the next door neighbor. He’s a nice enough guy, and apparently he thinks quite a bit of the Defendant, and he says that the whole neighborhood loved him, and that maybe true.
Amy Smith said there was no tire iron. Let’s talk about that for a while. Supposedly, she said in the hallway that she didn’t want to testify. I didn’t see any reluctance on her part to come in here to testify. I’m the one that asked her if she would testify. That statement just doesn’t make sense at all, and where did it come from? That came from the Defendant’s new girlfriend, the one he’s been going with for a year.
So I ask you to look at some of these witnesses and the motives and who’s the friend of who. Now, on the other side you can say, "Well, hey, how about the same thing with these guys? They’re, you know,” I don’t think so. They’re the ones with the injuries. They’re the ones with the bashed-in heads. I don’t think this is a matter of self-defense. I think the Defendant really lost his cool. I believe the witnesses. I don’t think those two guys went over there as bouncers or something to take this guy and slam them [sic] around.
Also, Mr. Fisher, I’ve told you he’s a pretty nice guy, the next door neighbor. He backs up the story of Rebecca Smith that she had permission to come and get the furniture.
I think the real witnesses are the players, the ones that were in the tussle, the ones that were assaulted.
If these guys wanted to do wrong, that was their chance. They had the hammer. It’s two against one. And they certainly had reason to be a little upset. Even the police officer said, "I would have been upset if I’d a been hit like that.” Well, you know why they weren’t upset, 'cause they’re just not that kind of people. They just went over there to help, this lady move this furniture.
I don’t think she said, "Look, I’ll give each of you guys five bucks to get your heads bashed in. I want to get this guy in court and send him to jail.” There’s no evidence of that. The only evidence is that in December of 1990 she was angry, and probably rightfully so.
Finally, at the end of the prosecutor’s rebuttal, he said:
Consider all those things. Consider the evidence. The evidence that you know for sure, and then consider the witnesses’ motives and their credibility. Forget about whose furniture it was. Forget about trespassing. And forget about Rebecca Smith. Think about the victims. I think beyond a reasonable doubt this man is guilty. Thank you. [Emphasis added.]
We again emphasize that no single comment, standing alone, would automatically require reversal. But, when read together, the prosecutor’s statements support defendant’s claim that he did more than set out the evidence and fit it to his theory of the case. He evaluated the personality, neutrality, willingness to testify, truthfulness, and integrity of the people’s witnesses and vouched for their truthfulness.
C
In the past, our Court has found instances where vouching for the credibility of witnesses did not require reversal. In People v Hart, 161 Mich App 630; 411 NW2d 803 (1987), defense counsel told the jury that the prosecutor would not vouch for his witnesses, because they were not "pillars of the community.” The prosecutor responded that he would vouch for them. Our Court concluded that, while the prosecutor’s response was improper, reversal was not required. The prosecutor had responded to arguments made by defense counsel. Moreover, the court had given a curative instruction. Id., p 637.
Here, in contrast, the prosecutor’s comments were not in response to defense counsel’s comments. Moreover, the court did not give a curative instruction. The jury was not alerted to the possibility that they faced the risk of adopting the prosecutor’s evaluations of the witnesses as their own.
Our Court considered the question of the prosecutor vouching for a defendant’s guilt in Bahoda, supra, pp 219-220. There, the prosecutor announced that "this was a perfect case. These dope cases don’t get any better.” Our Court concluded:
It is possible that the prejudice resulting from some of the errors below could have been cured by a timely instruction. In the aggregate, however, and in light of the timing of the trial and of the credibility disputes involved, these errors undoubtedly deprived defendant of a fair trial. [Id., p 220.]
The prosecutor’s comments here are not as ex treme as those in Bahoda. We are inclined to believe that the prosecutor intended to say, "I believe the evidence has shown that defendant is guilty beyond a reasonable doubt.” He made a similar comment early in his closing argument. Therefore, if defendant pointed only to this isolated statement to claim misconduct by the prosecutor, we would not find misconduct. We would conclude that the prosecutor misspoke or overstated his position, but that a single statement does not indicate an attempt to unduly influence the jury.
However, here, the prosecutor uttered the statement at the end of a series of assertions in which he evaluated the witnesses. He specifically told the jury which ones he considered believable. As a result, we are unable to conclude that, when he announced defendant’s guilt, he misspoke, or that he intended anything other than what he said. In proclaiming to the jury, "I think beyond a reasonable doubt this man is guilty,” he vouched for defendant’s guilt. The jurors were not adequately protected from the risk that his opinion regarding defendant’s guilt would prejudice them against defendant.
We hold that the cumulative effect of the prosecutor’s comments, which repeatedly injected his opinions of the witnesses’ credibility and defendant’s guilt into closing arguments, amounted to misconduct by the prosecutor.
II
Defendant argues that the lower court erred in failing to read CJI2d 7.17 to the jury, setting forth the rule that there is no duty to retreat while in one’s own dwelling. We disagree.
In People v Godsey, 54 Mich App 316, 321; 220 NW2d 801 (1974), this Court held that the no-duty- to-retreat rule extended "only to inhabited outbuildings located within the curtilage of the home.” The Court specifically rejected the notion that the rule extended to the outdoor portions of a curtilage. Id.
Here, all the witnesses testified that the altercation between defendant and the complainants, Robert Smith and Marc Heath, occurred outside defendant’s home. Accordingly, the lower court did not err in failing to give the requested jury instruction. See also People v Wytcherly, 172 Mich App 213, 221; 431 NW2d 463 (1988), which states that a defendant is excused from a duty to retreat only if the defendant is in inhabited physical structures within the curtilage of his home.
III
Defendant next argues that the lower court erred in allowing res gestae witness Amy Smith to testify at trial when the prosecutor did not endorse her until the middle of the trial. We disagree.
A prosecutor’s endorsement of a witness is permitted at any time by leave of the court and for good cause shown. MCL 767.40a(4); MSA 28.980(1) (4). A trial court’s decision to allow a late endorsement is reviewed for an abuse of discretion. People v Canter, 197 Mich App 550, 563; 496 NW2d 336 (1992).
In seeking leave to allow Ms. Smith to testify on rebuttal, the prosecutor argued that he had been surprised by defense testimony that one of the complainants carried a tire iron. The prosecutor indicated to the trial court that Ms. Smith’s testimony would refute that fact. We conclude that the trial court did not abuse its discretion in finding good cause to allow Ms. Smith to testify.
Reversed. | [
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Per Curiam.
Plaintiff appeals from a June 29, 1993, order of summary disposition entered in favor of defendant, Summer Green Lawn Care, Inc., in this negligence action. Defendant moved for summary disposition pursuant to MCR 2.116(C) (10), claiming that, pursuant to contract, it owed no duty to plaintiff to maintain a clean and non-slippery pavement in a Kmart parking lot. We reverse and remand.
This lawsuit arises out of plaintiff’s slip and fall in a Kmart parking lot on December 9, 1990. Michigan Greenfield Land Company, owner of the premises, contracted with defendant for snow removal services. The contract was in effect at the time of plaintiffs injury. Plaintiff filed a complaint against defendant alleging that defendant owed plaintiff a duty to maintain the premises and the adjacent or abutting areas in a safe condition free from danger and to exercise reasonable care to diminish the hazards of ice, and that such duty further required reasonable and appropriate measures in light of existing and created circumstances. Plaintiff alleged that defendant breached its duty by negligently, carelessly, and recklessly removing snow from the premises and placing it on a portion of the premises when it knew, or should have been known or anticipated, that the snow would melt and freeze into ice on the abutting sidewalk, steps, and walkway, thus posing a dangerous and hazardous condition to individuals who traverse those areas. Plaintiff alleged that defendant was negligent in failing to keep the premises and all common areas fit for their foreseeable uses and in failing to remove ice from areas after notice of the dangerous condition, in allowing ice to build up, in maintaining a hazardous condition when it could have been reasonably discovered, and in failing to remove a dangerous condition.
Defendant claimed that because no genuine issue of material fact existed regarding the duty owed by defendant, defendant was entitled to summary disposition as a matter of law. Defendant argued that although an owner of premises must maintain the property in a reasonably safe condition, the present action seeks to impose a duty for the maintenance of the premises upon a defendant who is not the owner of the premises. Defendant argued that the snow removal agreement between the parties clearly indicated that defendant assumed no duty or responsibilities of the premises owner. Additionally, the contract clearly provides that defendant did not assume any of the responsibility for damage or injury caused by slipping and falling on any pavement surface.
A hearing on the motion was held on June 11, 1993, before the discovery cutoff, which was scheduled for October 31, 1993. At the hearing, plaintiff argued that while defendant was plowing, defendant had control of the premises and defendant’s duty arose from this control. Plaintiff claimed that a duty arose because defendant created a hazardous condition that caused plaintiff’s injuries. Plaintiff also claimed that because two of the contract’s clauses conflicted, the jury should determine which portion of the contract is controlling.
The record is unclear with regard to which section of MCR 2.116 the court based its ruling. The trial court failed to articulate on the record or in its written order its basis for granting the motion. However, both defendant and the trial court relied on documentary evidence beyond the pleadings in support of defendant’s motion for summary disposition. Therefore, we must construe defendant’s motion as being brought pursuant to MCR 2.116(0(10).
A motion for summary disposition under MCR 2.116(0(10) tests the factual support for a claim and should be granted only when it is impossible for the claim to be supported at trial because of a deficiency that cannot be overcome. In ruling on the motion, the trial court must consider not only the pleadings but also any depositions, affidavits, admissions, or other documentary evidence submitted by the parties. Linebaugh v Berdish, 144 Mich App 750; 376 NW2d 400 (1985). In deciding such a motion, the court must give the benefit of reasonable doubt to the nonmovant and determine whether a record might be developed that would leave open an issue upon which reasonable minds may differ. Bedker v Domino’s Pizza, Inc, 195 Mich App 725; 491 NW2d 275 (1992). Before judgment may be granted, the court must be satisfied that it is impossible for the claim to be supported by evidence at trial. Tame v A L Damman Co, 177 Mich App 453; 442 NW2d 679 (1989). This Court liberally finds a genuine issue of material fact.
Although clumsily arranged, the contract allows only one interpretation. Where written documents are unambiguous and unequivocal, their construction is for the court to decide as a matter of law. Mt Carmel Mercy Hosp v Allstate Ins Co, 194 Mich App 580; 487 NW2d 849 (1992). If a contract, however inartfully worded or clumsily arranged, fairly admits of but one interpretation, it may not be said to be ambiguous or, indeed, fatally unclear. The contract, when read as a whole, is not ambiguous. The contract between defendant and Michigan Greenfield Land Company provided, in part, as follows:
Provider assumes no liability for any damage caused to you or your tenant as a result of conditions caused by weather or circumstances which are reasonably beyond Provider’s control, includ ing but not limited to your delay in requesting snow plowing or salting.
Due to variables, includeing [sic] but not limited to temperature, compaction, wind drifting or piling, it is impossible to remove accumulated ice and snow to bare pavement. No salt or melting agent will be used without prior direction by you or your authorized agent. Provider does not indemnify or hold you harmless from claims or demands arising directly or indirectly from the condition of the pavement’s surface. Provider shall not be responsible for any damage or injury caused by slipping or falling on any pavement surface.
Nothing contained in this agreement shall relieve Provider from liability for its breach of this agreement or damages caused to person or property as a result of Provider’s, its employees’, its agents’ or representatives’ negligence. [Emphasis added.]
Although the contract specifically states that defendant will not be responsible for damage or injury caused by slipping or falling, it also states that nothing in the agreement shall relieve defendant of liability for damages caused to persons as a result of defendant’s negligence. Such language is clear and unambiguous. Read as a whole, the contract requires defendant to provide snow removal services in a reasonable manner, holding defendant liable for its negligent conduct in the snow removal process.
The trial court incorrectly interpreted the terms of this contract to limit the duty defendant owed to plaintiff. Not only did the contract articulate that defendant would remain liable for its negligent conduct, but such duty also arose out of defendant’s undertaking to perform the task of snow plowing. The duty allegedly owing is that which accompanies every contract, a common-law duty to perform with ordinary care the things agreed to be done. Talucci v Archambault, 20 Mich App 153; 173 NW2d 740 (1969). Those foreseeably injured by the negligent performance of a contractual undertaking are owed a duty of care. In Clark v Dalman, 379 Mich 251, 260-261; 150 NW2d 755 (1967), the Court reasoned as follows:
Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. . . .
Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part. Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of showing the relationship of the parties and the nature and extent of the common-law duty on which the tort is based.
Defendant argues that plaintiff was not in privity of contract with defendant and the premises owner, and therefore was owed no duty. While it may be true that plaintiff is not owed a duty under the contract itself, the contract is the basis out of which arises defendant’s common-law duty to plaintiff. According to Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), a good case is made for abolishing contractual privity and permitting suit in negligence by any third party.
By analogy, Commercial Union Ins Co v Medical Protective Co, 426 Mich 109, 124, n 5; 393 NW2d 479 (1986), stated:
Whether a primary insurer owes a duty to act in good faith or with due care toward an excess insurer as well as the insured is analogous to the question whether a manufacturer owes a duty to act with due care toward an ultimate purchaser as well as a retailer of his product, or whether a professional who undertakes a service in a contract owes a duty to act with due care toward third parties who foreseeably will be affected as well as toward the person with whom the professional makes the contract. This Court has held that in the case of the manufacturer and the professional there is liability.
In these cases, a contract between two parties gives rise to contractual duties. Breach of a contractual duty causes injury to a third party, who is then allowed to bring a tort action. In Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120; 90 NW2d 873 (1958), a manufacturer’s breach of an implied warranty of merchantability in a contract of sale gave rise to a tort action in favor of an injured ultimate consumer of the product. In Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967), a repair contractor’s breach of the contractual duty to notify an inspector of work completed, and his breach of the common-law duty to act reasonably so as not to endanger licensees or invitees, gave rise to a tort action in favor of an injured inspector.
Although defendant attempted to limit its liability for slips and falls through its contract with Michigan Greenfield Land Company, the contract language states that defendant will not be relieved from liability resulting from its negligence. Thus the contract does not shield defendant from liability to plaintiff. Even if the language were able to shift liability to Michigan Greenfield, defendant would still owe plaintiff a common-law duty separate and apart from the contract itself. Duty of care not only arises out of a contractual relationship, but it also arises by operation of law, a general duty owed by defendant to the public of which plaintiff is a part. Clark, supra at 260-261. Therefore, even though plaintiff was not in privity of contract, she was owed a duty of ordinary care by defendant.
Reversed and remanded. | [
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] |
J. W. Fitzgerald, J.
Tri-County Community Hospital appeals as of right from the circuit court order affirming a Michigan Employment Security Commission decision in favor of its former employee, James Vanderlaan. We reverse.
Vanderlaan was terminated from his employment with the hospital on June 14, 1990. Although he was an at-will employee, the employee handbook provided that Vanderlaan, a department head, was to provide four weeks’ notice before leaving employment. The manual also provided that if the hospital requested a termination, "Department heads may receive four weeks’ salary instead of four weeks’ notice.” Following his termination, Vanderlaan continued to receive salary checks for the next six weeks, even though he was no longer working. The payments made during the first four weeks are at issue herein. The remaining two weeks were paid as severance pay and are not in dispute.
At issue in this case is whether the payments made to Vanderlaan after June 14, 1990, were made in lieu of notice. If so, they are considered remuneration and Vanderlaan was not entitled to unemployment benefits for that period. MCL 421.48(2); MSA 17.552(2). If the payments were in the form of termination, separation, or severance pay, they are not remuneration and Vanderlaan was entitled to unemployment benefits from the date of termination. Id. For the reasons discussed below, we hold that Vanderlaan was not entitled to benefits for the period in question because the payments were made in lieu of notice.
The mesc originally granted Vanderlaan unemployment benefits from the date of termination. The hospital challenged this award, arguing that Vanderlaan had received remuneration for the four weeks following his termination, in the form of pay in lieu of notice, and was therefore not entitled to unemployment benefits during that period pursuant to § 48(2) of the Michigan Employment Security Act, MCL 421.48(2); MSA 17.552(2).
The mesc Board of Review found that the hospital was not contractually required to give notice or payment in lieu of notice. It concluded that the payments to Vanderlaan were therefore considered either severance pay or a bonus. The board reasoned:
The operative language in the employer’s policy ... is that the department head "may” receive four weeks salary instead of four weeks notice. This does not indicate that claimant had an enforceable right to the four weeks notice. Rather, this language indicated that the payment the claimant received was át the discretion of the employer. The policy does not establish an enforce able right to four weeks salary or the six weeks that claimant actually received.
The circuit court affirmed the board’s decision, finding that because Vanderlaan did not have an enforceable contractual right to notice or payment in lieu of notice, the four weeks’ salary did not constitute payment in lieu of notice.
Section 48(2) of the Michigan Employment Security Act provides in relevant part:
All amounts paid to a claimant by an employing unit . . . paid in the form of retroactive pay, or in lieu of notice, shall be deemed remuneration in determining whether an individual is employed under this section .... However, payments . . . in the form of termination, separation, severance, or dismissal allowances, and bonuses, shall not be deemed wages or remuneration within the meaning of this section. [MCL 421.48(2); MSA 17.552(2).]
The mesc argues on appeal that the standard enunciated by the board has been applied in prior agency decisions and is a proper interpretation of the statute. We disagree.
This Court will reverse a decision by the mesc Board of Review where it is either contrary to law or not supported by competent, material, and substantial evidence on the whole record. MCL 421.38(1); MSA 17.540(1); Tomei v General Motors Corp, 194 Mich App 180, 183-184; 486 NW2d 100 (1992). A longstanding, consistent administrative interpretation of a statute by those charged with its execution should be given deference, and ought not be overruled without cogent reasons. Ludington Service Corp v Acting Comm’r of Ins, 444 Mich 481, 491; 511 NW2d 661 (1994). However, an administrative agency’s interpretation is not binding on the courts, and cannot overcome a statute’s plain meaning. Id. at 503-504.
A review of prior mesc decisions indicates that the law applied was not based upon a longstanding, consistent administrative interpretation of "amounts paid in lieu of notice.” Prior decisions indicate that it is not always necessary to prove a contractual right to notice of termination to show payment in lieu of notice; rather, it may also be found where the employer has a custom or policy of giving notice upon termination. See Cook v Bronson Methodist Hosp, mesc Referee Decision No. B90-04410, decided May 11, 1990; Sullivan v Continental Associates Inc, mesc Referee Decision No. B89-00284, decided March 24, 1989; Schmidt v Bronson Hosp, mesc Referee Decision No. B85-08556, decided November 13, 1985.
The Legislature has not defined the phrase "paid in lieu of notice,” or any of the other operative terms in the statute. We accordingly apply the rules of statutory construction to interpret the meaning of the phrase. Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning; technical terms are to be accorded their peculiar meanings. MCL 8.3a; MSA 2.212(1); In re PSC’s Determination Regarding Coin-Operated Telephones, No 2, 204 Mich App 350, 353; 514 NW2d 775 (1994). Nothing will be read into a statute that is not within the manifest intention of the Legislature as gathered from the act itself. In re Marin, 198 Mich App 560, 564; 499 NW2d 400 (1993). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
Our reading of the statute persuades us that the Board of Review improperly determined that an actual contractual right to notice or payment in lieu of notice was necessary to qualify as "amounts paid in lieu of notice.” Such a requirement is simply not derived from either the statute or a reasonable interpretation of § 48(2). The plain and ordinary meaning of the phrase is clear; additional interpretation is neither necessary nor desirable. Id. However, while the presence of a contractual right to payment in lieu of notice is not a requirement, the board may consider the factor when deciding whether unemployment benefits are precluded under § 48(2). It may also consider other relevant factors such as the employer’s custom or policy of giving notice and the employee’s expectation of payment. Accordingly, the board’s decision, which required a contractual right to notice or payment in lieu of notice in order for amounts paid to be considered "paid in lieu of notice” under the statute, is contrary to law.
In this case, the four weeks’ salary received by Vanderlaan constituted payment in lieu of notice. Under the terms of its employee handbook, the hospital could either allow Vanderlaan to continue working for four additional weeks, or pay him four weeks’ salary in lieu of notice. Following his termination, Vanderlaan was not required to continue working, but instead received four weeks’ salary over the next two pay periods. The payment was made pursuant to the hospital’s policy as set forth in the employee handbook. The additional salary was clearly a payment after the time of separation because the hospital did not desire Vanderlaan to continue working. Under § 48(2), therefore, Vanderlaan was paid remuneration during that period and was not entitled to unemployment benefits for the four weeks in question. MCL 421.48(2); MSA 17.552(2).
The circuit court order affirming the mesc Board of Review’s decision in favor of Vanderlaan is reversed.
MacKenzie, J., concurred. | [
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Per Curiam.
Defendant appeals as of right from an order of the Tuscola Circuit Court denying his motion to quash a bench warrant and his subsequent conviction of probation violation. His probation was revoked and he was sentenced to ninety days’ imprisonment. We reverse.
On February 9, 1990, defendant pleaded guilty of attempted uttering and publishing, MCL 750.249; MSA 28.446, MCL 750.92; MSA 28.287, in the Tuscola Circuit Court. He was sentenced on April 9, 1990, to three years’ probation, with the first year to be served in the county jail. Because defendant successfully completed a drug rehabilitation program in the Ten Sixteen Home, the balance of his jail sentence was suspended. Defendant had also been sentenced on March 1, 1990, in the Saginaw Circuit Court to a term of probation for a conviction of attempted uttering and publishing. Defendant was serving his probationary terms concurrently.
On July 9, 1991, as a result of a petition filed by probation authorities, a bench warrant was issued in Tuscola County alleging that defendant violated his probation because he used a controlled substance without a valid prescription. Apparently, defendant had submitted a urine sample to the Saginaw County Probation Department on May 21, 1991, and that sample tested positive for Valium. On July 2, 1991, the Department of Corrections sent defendant a letter (which defendant admittedly received) encouraging him to turn himself in to the Tuscola County Sheriff’s Department. Defendant admitted that he did not respond to the letter. Defendant also admitted that he ceased reporting to his probation officer when he received a call that there was a warrant for his arrest.
Defendant was arrested on May 28, 1993, pursuant to a warrant regarding child support issued through the friend of the court in Saginaw County. When he was arrested, it was determined that there were outstanding warrants in Tuscola County and Saginaw County for violations of defendant’s probations. Defendant moved to quash the warrant from Tuscola County and dismiss the charge of probation violation on June 18, 1993, because of the delay in his arrest.
A hearing was held on June 25, 1993. The trial court found that the probation authorities did not exercise due diligence in executing the warrant regarding the probation violation. However, the court denied defendant’s motion to quash the warrant, finding that defendant suffered no prejudice because of the delay. A probation revocation hearing was held immediately thereafter, and the trial court found that defendant’s probation had been violated. The trial court revoked defendant’s probation and sentenced him to ninety days’ imprisonment. Defendant was granted a bond pending appeal.
Defendant argues on appeal that the trial court erred in denying his motion to quash. He contends that the two-year delay from the issuance of the warrant until his arrest constitutes a waiver of the probation violation because the probation authorities did not exercise due diligence in executing the warrant. We agree with defendant.
In People v Diamond, 59 Mich App 581, 587; 229 NW2d 857 (1975), this Court first announced the rule that once a warrant for probation violation has been issued, the probation authorities must exercise due diligence in executing it. If there is a determination that the probation authorities did not act with reasonable dispatch under all the circumstances, then there is a waiver of the probation violation. Id., p 588. This rule has been consistently followed by this Court. People v Gunner, 61 Mich App 569, 570; 233 NW2d 87 (1975); People v Henry, 66 Mich App 394, 397; 239 NW2d 384 (1976); People v Miller, 77 Mich App 381, 384; 258 NW2d 235 (1977); People v Hanson, 178 Mich App 507, 510; 444 NW2d 175 (1989); People v Ritter, 186 Mich App 701, 709; 464 NW2d 919 (1991).
The trial court found that the probation authorities had not acted with due diligence in this case. There was evidence to support this finding. At the evidentiary hearing, it was determined that defendant had lived at the house he owned in the City of Saginaw continuously since 1970. Defendant had not changed his name, moved, or otherwise attempted to evade the probation authorities. The probation authorities had defendant’s correct address. Further, Gerald Polk, the supervisor of probation services for the "thumb” area, testified that he could not give any reason why the warrant for defendant’s arrest was not enforced for nearly two years. We also note that it appears that the delay in executing the warrant would have been even longer because defendant was arrested on a wholly separate matter (regarding a child support order from the Saginaw Circuit Court) and it was only at that point that the outstanding arrest warrant was noted. Thus, the trial court’s finding that the probation authorities did not exercise due diligence is not clearly erroneous.
The trial court, however, denied the motion to quash, finding that there was no prejudice to defendant because of the delay. The trial court’s legal conclusion regarding prejudice is not entirely in accord with the above-cited authorities. In Miller, supra, p 384, this Court stated that to determine whether the authorities exercised due diligence, it is appropriate to consider the length of the delay, the reason for the delay, and the prejudice to the defendant. Thus, the concept of prejudice to the defendant is merely a factor to be considered in determining whether the probation authorities exercised due diligence in executing the warrant.
We do not believe that a lack of prejudice, in and of itself, is sufficient to defeat a defendant’s claim that the probation violation must be waived where there is a finding that the authorities did not exercise due diligence. Those cases that suggest otherwise involved entirely different factual situations. In People v Diamond, 70 Mich App 512; 245 NW2d 809 (1976), the defendant was also to blame for the delay. There, the defendant used several different names, resided at seven different addresses, and denied under oath that he was on probation during the period of delay. In People v Phillips, 109 Mich App 535, 540; 311 NW2d 301 (1981), the question was whether the defendant was denied due process by reason of the delay of 108 days between the incident violating the probation and the hearing regarding the charge of violation of probation. This Court held that the defendant suffered no prejudice because the Bay County probation authorities were waiting to see how the defendant did in a drug rehabilitation program before commencing probation violation proceedings. This Court noted that the delay actually benefited the defendant because it would avoid interruption of a program that could be helpful to the defendant and that, if the program was successfully completed, it would be a mitigating factor in the defendant’s eventual sentence for probation violation.
In the instant case, there is no showing that defendant was to blame for the delay, and the delay did not benefit defendant. The concept of prejudice should have been considered in the ultimate decision of whether the probation authorities exercised due diligence in executing the warrant. As this Court has noted, a warrant is a command to the officer to execute the warrant promptly, and in some circumstances under pain of fine or criminal prosecution. People v Rowe, 95 Mich App 204, 209; 289 NW2d 915 (1980); MCL 750.191; MSA 28.388, MCL 750.123; MSA 28.318, MCL 600.587; MSA 27A.587.
Because the probation authorities did not exercise due diligence in executing the warrant, the probation violation should have been waived. We, therefore, reverse the trial court’s order denying defendant’s motion to quash and reverse the conviction of probation violation. Gunner, supra, p 570.
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