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Montgomery, J.
This is an action on a fire policy for $1,500,— $500 on a two-story frame, shingle-roof creamery building and additions; $800 on engine, boilers, fixed and movable machinery, fixtures, tools, etc.; $200 on merchandise, consisting chiefly of butter and cheese, manufactured and in process of manufacture, and all materials and supplies for the same, including packages. The loss on the building was, by the terms of the policy, made payable to Milton M. Rose, mortgagee, as his interest might appear. The property was completely destroyed by fire, and on the trial the plaintiffs recovered a verdict, by direction of the court, in the sum of $1,449.30.
A preliminary question is raised as to the sufficiency of the declaration, the point being that there was a variance between the proofs and the declaration. We think this objection not tenable. It is alleged in the declaration that by the policy the defendant did insure plaintiffs and Milton M. Rose, mortgagee, as the interest of the mortgagee should appear, against loss or damage by fire, etc. It is further averred that the building was burned and destroyed by fire, whereby said plaintiffs, and Milton M. Rose as mortgagee, have sustained damage to the amount of $1,500. It concludes with an averment of damages to the plaintiffs, and, we think, could not have been misleading. The point appears to be that the averment that plaintiffs and Rose sustained damage to the amount of $1,500 amounts to an averment that they were jointly entitled to recover that sum. But we think, in view of the previous statement, that it could not be so construed. It is stated that the defendant did insure plaintiffs and Rose, mortgagee, as his interest might appear. There was no demurrer to the declaration, and we think it sufficient.
The principal defenses attempted were:
First. That the policy was issued upon a written application, containing representations of facts material to the i’isk, which were violated.
Second. That the assured ceased to operate the creamery for more than 10 days prior to the fire.
Third. That foreclosure proceedings were commenced to the knowledge of the assured.
Fourth. That the building insured was unoccupied, and so remained for 10 days prior to the fire, without the consent of the company indorsed upon the policy.
None of these defenses, except that based upon the representations contained in the application for the policy, are set up in the pleadings by the defendant, and the point is made that the defenses were not open. We think these defenses could not be considered, under the pleadings. See Residence Fire Ins. Co. v. Hannawold, 37 Mich. 103; Cassacia v. Insurance Co., 28 Cal. 628; Coburn v. Insurance Co., 145 Mass. 229. Defendant’s counsel cites Morley v. Insurance Co., 85 Mich. 210, in which case it was said:
‘ ‘ When the declaration is upon a written contract, under a plea of the general issue the defendant may show, upon cross-examination of plaintiff’s witnesses or otherwise, a noncompliance with any of the conditions of the contract which will defeat recovery.”
This language must be construed with reference to the subject being dealt with, and, so construed, it is evident that by “conditions” was meant conditions precedent. The true rule is stated by Mr. Justice Devens, in Coburn v. Insurance Co., supra, which is: “Stipulations added to a contract, which are intended to avoid the defendant’s promise by way of defeasance or excuse, must be pleaded in defense, and must be sustained by evidence. They are in the nature of provisos.” The defenses in the present case relating to the failure to have the fact of foreclosure proceedings indorsed, the cessation of use, and the want of occupancy of the building, are by way of confession and avoidance, and should have been pleaded specially at the common law, and, under our practice, should have been noticed under the general issue.
As before stated, the breach of representations contained in the application was fully set up in the notice. This defense depended for its validity upon two considerations : First, whether the application offered in evidence was, in fact, the basis of the insurance, or whether, on the other hand, the policy was issued upon a distinct oral application; and, second, whether there was a material misrepresentation. Neither of these questions was submitted to the jury. We think there was error in these rulings.
One of the plaintiffs testified as follows: “ Q: When you were getting out this insurance, did you make application in writing ? A. I made application to Mr. Chapell. I could not swear what company it is.” He was then shown the application in question, which was directed to the defendant company, and admitted that the signature to the same was written by himself. On. redirect examination, it is true, he testified that he made the application to Chapell, and not to Mr. Cooper, the agent who signed the policy, and that he never had any conversation with Mr. Cooper about this application; and the plaintiffs produced as a witness Mr. Edward Rose, who testified that he went to the office of Cooper, and made an oral application, and that Cooper replied that he would submit the question to the Philadelphia Company; and that a few days later he received the policy, and paid the premium on it. It appears by the record that a previous talk had been had between Rose and the plaintiffs about making an application for some insurance in the defendant company. The written application signed by the plaintiff bore date December 5th, has the stamp of defendant’s manager in Chicago, bearing date December 6th, and the policy was issued December 7th. We.think, under all the testimony, the question of whether the policy was issued on a written application was one of fact for the jury. If such an application was before the agent of the company at the time he wrote the policy, the presumption is almost irresistible that the policy was written based upon that application. It is the Cronins who sue here, upon a contract running to them. Rose saw fit to accept such a contract, and, if this was based upon a written application, and so understood by defendant’s agent, certainly the plaintiffs ought to be bound by it. If Rose was misled to his prejudice, it is possible that a remedy may be open to him to the extent of his interest in the policy; but his remedy, if any, would not be by an action on the policy in the name of the assured, but he would be forced to resort to either an action on the case or a court of equity. But that question is not now before us. If it is established that the application is to 'be treated as a part of the policy, the testimony in this record would seem to indicate a breach of the representations contained in the application.
It is claimed that the judgment was excessive. There was included in the judgment, under the clause insuring “merchandise, consisting chiefly of butter and cheese, manufactured and in process of manufacture, and all materials and supplies for the same, including packages,” an item of $91.50 for milk cans. It is claimed that the word “packages” is not broad enough to include packages in which the materials and supplies are to be placed, but only relates to the packages for the manufactured article, such as cheese and butter. The word is used in connection with materials and supplies, and, we think, is broad enough to include the milk cans.
For the error pointed out, the judgment will be reversed and a new trial ordered.
The other Justices concurred.
Rehearing granted May 4, 1897. Former decision affirmed (no opinion filed) November 8, 1897. | [
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Grant, J.
(after stating the facts). The drainage statute contains three provisions in regard to liability for costs. 3 How. Stat. § 1740b5, provides that “such applicants shall be jointly and severally liable for all costs and expenses in case the commissioner upon examination, or upon examination and survey, shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause.” Section 1740c6 is as follows: “In case the special commissioners or jury shall decide such drain to be unnecessary, they shall so state in their return, and the drain commissioner shall thereupon dismiss the proceedings at the cost of the applicants. ” Section 1740e4 provides that the proceedings may be reviewed by certiorari, and provides that, “if the proceedings be sustained, the party bringing the certiorari shall be liable for the costs thereof, and, if they be not sustained, the parties petitioning for the drain shall be liable for the costs.”
The learned circuit judge, in his instructions, said:
“Now, it seems to me that that language, using the word ‘dismissed,’ refers to some other similar action, similar to that which is expressly stated in the statute itself; dismissed because it was impracticable, or that it was not beneficial to the public health, or that it was unnecessary to take the land described for some other similar reason; and that the word ‘dismiss,’ in my construction of the statute, means some action taken in those drain proceedings themselves. It does not seem to me that the holding by this court in the certiorari case that those proceedings s.hould be quashed and held void because of some illegality, because of some delay on the part of the commissioner, or because of some action or want of action upon his part, should come within that term ‘ dismissed.’ ”
It does not appear for what reason the proceedings were quashed or dismissed by the circuit court upon certiorari. It may have been through some neglect or fault of the commissioner, in which case the defendants would not be liable for the costs. Hall v. Palmer, 54 Mich. 270. We said in Rosenstiel v. Miller, 96 Mich. 99: “They [the petitioners] are actors in the proceedings, and the statute contemplates that they are the parties in the suit.” We are of the opinion that the expression in the clause of the section first above quoted, viz., “in case the proceedings shall be dismissed for other cause,” follows the proceedings throughout, and carries costs against the petitioners at any stage when the proceedings are dismissed or quashed for any cause not due to the negligence or fault of the commissioner. The evident intention of the legislature was to make the petitioners in these proceedings liable for the costs if they failed to sustain them. This liability cannot attach to them when the failure is due to some action of the commissioner not authorized by law.
It follows that the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Montgomery, J.
This case was once before the court, and is reported in 107 Mich. 476. On the former hearing, the question presented was whether the acceptance of service, accompanied by authority to the plaintiff to proceed as in case of actual service of the writ, conferred jurisdiction upon the circuit court of Osceola county, it appearing that the acceptance was made in another county. It was held that inasmuch as the writing was more than a mere acceptance of service, and contained an authorization to proceed with the case, it gave jurisdiction. On the second trial of the case defendant sought to show that this acceptance of service was not-in fact signed by the defendant in the original action brought by plaintiff against Pierson; and whether it was permissible to make this appear by parol testimony, in contradiction of the record, presents the sole question for consideration in the case.
The question is not novel, or, if it be determined on authority, uncertain, nor do we deem it a doubtful one on principle. If it were permitted, in a collateral action, to-impeach the validity of a judgment roll, by facts aliunde the record, a party relying upon such a judgment would never know how to shape his case for trial, or what multitude of issues he might be required to meet. Hence the rule that a judgment which oh its face shows jurisdiction imports absolute verity, when attacked collaterally. See 1 Freem. Judgm. § 124, and Van Fleet, Coll. Attack, § 468, in which place it is said:
“Oh principle, a judicial proceeding is never void because the proof of service is false in fact. Such proof is a necessary part of the record, and to permit its verity to be questioned collaterally overturns the very foundations of all judicial proceedings.”
See, also, the cases cited in the same section. And see Landon v. Comet, 62 Mich. 91; Somers v. Losey, 48 Mich. 294; Corbitt v. Timmerman, 95 Mich. 581.
Some reliance is placed by counsel upon the language of Mr. Justice Champlin in Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 495, as follows:
“ It is a well-settled principle of law that the judgment of a court which has jurisdiction of the person and subject-matter is binding until reversed, and cannot be attacked collaterally. No offer was made to show that the court had no jurisdiction over the person of defendant or subject-matter. On the contrary, the,record showed due service, and the court had jurisdiction of the subject-matter. The record therefore imported absolute verity, and could not be contradicted. But this rule applies only to parties and their privies. It does not apply to such third persons or strangers to the record as would be prejudiced in regard to some pre-existing right if the judgment were given full credit and effect.”
We discover, no holding in this case inconsistent with the general rule. The language does not even contain a dictum in favor of the contention of defendant. The most that can be said is that it is open to the-implication that, if an offer of proof to show that the court had no jurisdiction had been made, it might have been entertained. There is no indication of a purpose to overturn the settled rules of law upon this subject. It is true that in New York, and possibly in one or two other States, this rule has not always been adhered to; but the weight of authority is decidedly in favor of the contention of plaintiff in this case.
The learned circuit judge upheld the proceedings, and the judgment will be affirmed.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). The theory of the plaintiff is that he was invited into a place of danger without warning, and without proper guards at the entrance to protect him. This was not a passenger elevator, and unless plaintiff was invited into it he cannot recover. The jury, by their special verdict, have settled this question against the plaintiff, and they could not, under the evidence, consistently have found otherwise. Mr. Fisher, plaintiff’s witness, who was not in defendant’s employ at the time of the trial, flatly contradicted him, and testified, not only that he did not invite him, but that he did not know that plaintiff was following him. The elevator did not run between 12 and 1 o’clock. Fisher was in a hurry to go to the fifth floor to get some goods to fill an order before it stopped. Mr. Williams, the clerk whom plaintiff first addressed, and Mrs. Leahy, the customer upon whom Williams was waiting, also flatly contradict plaintiff. These witnesses testified that, when plaintiff asked Williams where the ingrains were, Williams replied that he would soon be through, and would wait upon him. Without objection, the following special question was submitted to the jury, “Do you find the facts in relation to plaintiff’s going to the place where he was injured to be as testified to by George Williams, Mrs. Leahy, and William Fisher?” to which the jury answered, “Yes.” The fact is therefore established that plaintiff attempted to enter the elevator without invitation, or permission. He alone is responsible for the accident and the injury, and cannot recover. Bedell v. Berkey, 76 Mich. 435 (15 Am. St. Rep. 370); Pelton v. Schmidt, 97 Mich. 231; Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514); Victory v. Baker, 67 N. Y. 366; Gibson v. Sziepienski, 37 Ill. App. 601.
Many alleged errors are assigned, but they do not affect the evidence upon which the jury based their special finding. It is unnecessary, therefore, to discuss them.
Judgment affirmed.
The other Justices concurred. | [
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Long, C. J.
This is an action on the case for damages for injuries caused by the defendant’s carelessly and negligently discharging a gun, the bullet from which passed through plaintiff’s right thigh and hip, permanently disabling him.
It appears that the defendant, at the time of the accident, was a resident of Saginaw, this State, and had gone to Otsego Lake on a hunting trip. He had formerly lived at that village for some years, and he and the plaintiff were well acquainted. On the evening of November 13, 1894, the plaintiff, learning that the defendant was at the hotel in the village,- called to visit him. As the plaintiff entered the public room of the hotel, he found the defendant seated in front of a wash-stand on the east side of the room, fixing his gun. He had taken the stock off and the works out, and was fixing the spring, the barrel of the gun lying across his lap. The plaintiff became seated near the defendant, when some conversation was had between them in reference to the gun. During the day the defendant had loaded the gun,—that is, had put a number of loaded cartridges into the magazine,—but had had trouble with discharging some of them. The gun had twice failed to explode the cartridges during the day, and he took it back to the hotel with the cartridges in the magazine. He testifies that, before he commenced working on the gun to take it apart, he worked the lever which extracts the cartridges from the gun until it failed to throw out any more cartridges, and then took the gun apart, and it was in that condition when the plaintiff came in. The parties differ as to the position of the gun >and the position occupied by each after the plaintiff came into the room. The plaintiff testified that, after he had spoken to the defendant, he “asked him about the gun, and what was the matter with it, and defendant said the spring was not stiff enough; that it wouldn’t set the cartridges off,—meaning the fire. I said, ‘Perhaps, if you put a piece of leather under the spring, it will make it so it will stand during the hunting season.’ He finally took it apart and put the piece of leather under the spring, and put the spring, with the rest of the works, back into the gun, turned it up like that (indicating), and drew the gun up like that (indicating), and discharged it. * * * The gun was pointed so that when it went off it hit me in the leg.” He further testified that the gun was on the defendant’s knees, and that he put the works in, and “then it was ready to see if the spring was any stiffer. He just turned it and drew it onto me.” On cross-examination he testified that the gun was not pointed at him until the spring was fixed and defendant brought it up to try it. He was asked:
‘ ‘ Rid you say anything about trying it ?
“A. Yes, sir. After he put the leather under the spring, then I told him to try it,—see if he could get it any better.
"Q. There was only one way for him to try it?
“A. He could try it by raising the hammer and not letting it snap down.
“Q. Didn’t he do that,—raise it with his thumb?
“A. No; he raised the hammer and snapped it, and. drew it onto me. I didn’t tell him to draw it onto me. I leaned back in my chair. I saw him do this. In order to get away, I had to get forward. It happened so quick I didn’t have time to take a second thought. * * *
“Q. When you said to him to try it, of course the only thorough way to try that would be to cock the gun, and let it pull the trigger, and let it strike down ?
“A. But he needn’t point it .at anybody. * * *
“Q. Did you think the gun was loaded?
“A. No, sir, I didn’t; but I ain’t in the habit of point ing a gun at anybody, or having it pointed'at me, whether it was loaded or not.”
The witness further testified that during all the time he was in the room, and up to the time when the gun was snapped off, he was not in range with the muzzle.
The defendant’s statement of the affair is that he had been in the woods, and had shot at a deer or two that day, and that the gun had failed to go off; that that evening he was trying to tighten the mainspring; that, when the plaintiff came in, defendant showed him the cartridge which the gun had refused to break, and had only dented the top of it a little; that, after fixing the spring, he was working the hammer, when the plaintiff said, ‘ ‘ Snap it off; it won’t hurt it; ” that he did snap it off, when it went off, and the plaintiff was injured. He testified further that the gun was in the same position from the time he started to work at it until it was discharged; that he believed it was entirely unloaded, and that there was nothing that occurred there that night to indicate that there was anything wrong with the mechanism of the gun; that the lever operated as it usually did when emptying the gun and magazine of the cartridges; that he had no recollection of any change in the plaintiff’s position or of his own after the plaintiff sat down there; that the gun pointed in his direction all the time from the time he sat down until it was discharged; that he did not pick it up, raise the hammer and bring it around towards the plaintiff, and then pull it off. The defendant further testified that he supposed he had all the cartridges out of the gun and out of the magazine; that his attention was called to this before the plaintiff came in by a Mr. Callahan, who asked, “Is there anything in that gun ? ” and defendant told him there was not, and that he said to him, ‘ ‘ Do you suppose I would go to work to fix a gun with any loads or cartridges in it ? ” that he pumped the lever to show him there was not, probably five or six times; that this was the usual way of throwing out the cartridges. It was shown, how ever, by the testimony of other witnesses, that, if the cartridge was carried from the magazine to the barrel by working the lever after the works had been put back into the gun, the cartridge would come into plain view of the one working the lever.
The defendant presented several requests to charge to the court, relating to the question of defendant’s negligence. These the court refused, but charged the jury upon that question as follows:
“It seems from some cause,-—-the witnesses are not able to explain just how,—one cartridge was not removed, and the result was this accident. The pointing of the gun, under such circumstances, at another, is made an unlawful act by the statutes of this State. The fact that the defendant had used the precautions which he has enumerated, for the purpose of determining whether the gun was or was not loaded, will not relieve him from liability, from the consequences of his negligent act in pointing the gun at the plaintiff, raising the hammer, and pulling the trigger, which were the immediate acts which caused, a discharge of the gun and resulted in injury to the plaintiff. A man is not excused from his act in injuring another by pointing and discharging a gun at him from the fact that he supposed he had taken all necessary precautions prior to the doing of this for the purpose of ascertaining and determining that the gun was not loaded. The act of pointing a gun at another, cocking it, and pulling the trigger, is of itself a negligent act; and the person so doing if the gun chances to be loaded and is discharged, and injures another, is not excused from the consequences of this negligent act on account of the care which he took prior to its commission to determine whether the gun was loaded. I therefore charge you, gentlemen of the jury, that, under the undisputed evidence in this case, the act of the defendant in pointing the gun at the plaintiff, raising the hammer, and pulling the trigger, which caused the,gun to be discharged and to injure the plaintiff, was a negligent act on the part of the defendant, and rendered him liable to the plaintiff in this action, and your verdict must be in his favor, unless you find that the plaintiff himself Was guilty of contributory negligence. The plaintiff, in order to recover, must establish, by a preponderance of evidence, two facts: First, that the injury was caused by the negligence of the defendant; second, that He himself was not guilty of contributory negligence. And the burden of proof is upon the plaintiff to establish both of these propositions. I have already instructed you that, as a matter of law, the plaintiff has established the first proposition,—that the defendant, in so pointing the gun and discharging it, was guilty of negligence.”
The sections of the statute referred to by the court in its charge to the jury are 9110-9113, inclusive, of 2 How. Stat. The act was passed in 1869, and is entitled “An act to prevent the careless use of firearms.” In People v. Chappell, 27 Mich. 486, this statute was under consideration, and it was held that a prosecution would not lie, and a conviction would not be sustained, under it, where the use of firearms was not careless, but was intentional or malicious. Mr. Justice Campbell, in speaking of the act, said:
“The statute was designed to punish a class of acts done carelessly, but without any design of doing mischief, and the various sections 'must, under our Constitution, be construed so as to conform to the title. The absence of malice is as necessary an ingredient in the statutory definition as the use of firearms. And the offense is purely statutory.”
Section 9113 provides:
“Any party maimed or wounded by the discharge of any firearm as aforesaid * * * may have an action on the case against the party offending, for damages, which shall be found by a jury,” etc.
The general rule, and without reference to this statute, is that a very high degree of care is required from all persons using firearms in the immediate vicinity of others, no matter how lawful or even necessary such use may be. 7 Am. & Eng. Enc. Law, 523. This same principle is stated in 2 Shear. & R. Neg. (4th Ed.) § 686. In Morgan v. Cox, 22 Mo. 373 (66 Am. Dec. 623), it was held that, where injury to another is caused by an act that would have amounted to trespass vi et armis under the old system of actions, it is no defense that the act oc curred through inadvertence, or without the wrong-doer’s intending it; it must appear that the injury done was inevitable, and utterly without fault on the part of the alleged wrong-doer. Defendant’s counsel contended that if the jury found that the defendant had used the ordinary and usual means of unloading the gun, and satisfied himself by such means that the gun was unloaded, then he could not be charged with negligence. We think the court very properly refused that instruction. As was said in Castle v. Duryee, 2 Keyes, 173:
“It is not the law that if one, supposing a musket to be unloaded, or to be charged only with powder, snaps it at another, and he is wounded, he is irresponsible in a civil action; and it is of no consequence, so far as maintaining the action is concerned, that he acted upon the most plausible or the most reasonable grounds, and fully believed that the gun was not charged with anything which could injure another.”
In Judd v. Ballard, 66 Vt. 668, it appeared that the plaintiff was injured by the discharge of a revolver in the hands of the defendant while the two were facing each other, lying in the bottom of an express wagon. The defendant had discharged one of the barrels for amusement, and was fixing the hammer, preparatory to returning the revolver to his pocket, when the discharge which injured the plaintiff occurred. It was said by the court that, “upon the facts presented, the defendant is clearly answerable for the damages.” It ^was further said: “The shooting of the plaintiff was an accident, but in no sense an unavoidable accident. It would not have occurred but for the defendant’s carelessness. The test of liability is not whether the injury was accidentally inflicted, but whether the defendant was free from blame,”—citing Vincent v. Stinehour, 7 Vt. 62 (29 Am. Dec. 145); Morris v. Platt, 32 Conn. 75; Bullock v. Babcock, 3 Wend. 391. It was further stated in that case:
“The injury was the direct result of a force put in motion by the defendant. The fact that the force was put in motion through negligence does not preclude the plaintiff from maintaining trespass. Neither an intention to injure the plaintiff, nor an intention to do the act which caused the injury, is essential. It is .sufficient if the defendant does a positive act from which the plaintiff suffers an immediate injury,”—citing 1 Smith, Lead. Cas. 560; Leame v. Bray, 3 East, 593; Welch v. Durand, 36 Conn. 182 (4 Am. Rep. 55); Claflin v. Wilcox, 18 Vt. 605; Howard v. Tyler, 46 Vt. 683.
The court, continuing, further said:
“It was proper to direct a verdict. There was no room for conflicting views as to the essential feature of the defendant’s conduct. The question was not whether it was proper to place the hammer between two cartridges, nor whether the defendant was handling the hammer in a proper manner. However proper it may have been to place the hammer in that position, and whatever the care with which the defendant was moving the hammer, it was negligence to be adjusting it with the revolver so held that an accidental discharge would injure the plaintiff. There was no evidence tending to show that the position of the revolver at the time of discharge was due to any controlling outside force, and no circumstances are shown from which the presence of such a force could be inferred. Any danger that might arise from the jolting of the wagon the defendant was bound to consider. The undisputed facts admit of no inference which could relieve the defendant from liability. ”
In Tally v. Ayres, 3 Sneed, 677, it was said:
“To constitute an available defense in such cases, it must appear that the injury was unavoidable, or the result of some superior agency, without the imputation of any degree of fault to the defendant. The lawfulness of the act from which the injury resulted is no excuse for the negligence, unskillfulness, or reckless incaution of the party. Every one in the exercise of a lawful right is bound to use such reasonable vigilance and precaution as that no injury may be done to others. Nor is it material, in a civil action for the recovery of damages, whether the injury was willful or not.”
See, also, Reg. v. Salmon, 6 Q. B. Div. 79, 29 Moak, Eng. R. 503.
It is apparent from the defendant’s own testimony that he was responsible for the cartridges having been left in the gun. He had been hunting that day, and had loaded it with cartridges. The fact that he believed that he had removed them all from the gun would not relieve him from responsibility in snapping it, when he knew it was pointed directly towards the plaintiff. Had he examined the gun, he would; of necessity, have seen the cartridge there, as it was shown that it would have been in plain view when placing the works back in the gun; also, that, when pulling the lever, the cartridge being raised into the barrel, had he then looked he could have seen the cartridge in the barrel. He testified that the gun was pointing at the plaintiff all the time he was fixing it, and that it was in the same direction when he snapped it off. The statute is aimed at just such cases as the present. It was also a plain violation of the statute to snap the gun while it pointed directly towards the plaintiff, and this violation of statutory duty is negligence per se; but, aside from this, we think that under the well-settled rules, and under the authorities above cited, the defendant was guilty of negligence, and was liable in a common-law action.
The only other contention in the case which we deem it necessary to discuss is the claim made by the defendant that the plaintiff was guilty of contributory negligence. That question, however, we think, was fully and fairly submitted to the jury. The court charged them upon that proposition as follows:
“The claim of the plaintiff is that, when he came into the hotel there that evening for the purpose of having a friendly visit with the defendant, he found him engaged in repairing the lock of his gun. He says he took a seat a short distance from him, but out of the range of the gun, as the defendant was then handling it; * * * that, after the defendant had repaired the lock and put it together again, that he took this gun up, after some remarks had been made in regard to snapping it or trying it, and shifted its position so that it then was pointing towards him, and snapped the gun. His claim is that this changing of the gun as he took it up in order to cock it was done so soon that he had no opportunity to protest or get out of the way. If you find that this occurred as claimed by the plaintiff, then he was not guilty of contributory negligence. On the other hand, it is claimed by the defendant that, during all the time the plaintiff remained there, he was sitting either, in actual range of this gun, or so near that a slight movement of it would have brought him in range. His claim is, too, that after the lock had been repaired, and while the defendant was operating the hammer to test the strength of the mainspring, that the plaintiff requested him to try or snap the lock while it was pointed (he made this request, rather, at a time when the gun was pointed) right towards the plaintiff in the case; that this request was made twice; that then the defendant did snap the gun; that it proved .to be loaded; there was an explosion, and the bullet penetrated the thigh of the plaintiff. If you find that the defendant’s version of this is true, I charge you that if you find that during the 20 minutes or so that the plaintiff sat by the defendant before the accident, and while the defendant was repairing the gun, the plaintiff sat in range of the gun, or so nearly within the range of it that a slight movement of it might bring him within range, and if, while sitting there, he knew the defendant was about to snap the gun to try the lock, and had time either to protest or get out of the way, and did neither, or if you find that the plaintiff invited the defendant to try it or snap it, meaning thereby to allow the hammer to strike so as to discharge the cartridge, if one happened to be in the gun, then the plaintiff was guilty of contributory negligence, and he is not entitled to recover. As I have said to you, the burden of proving that he was not guilty of contributory negligence is upon the plaintiff.”
There is a claim made in the case that the court improperly allowed certain expert testimony to be given, bearing upon the question of defendant’s negligence in handling the gun; but inasmuch as we hold the court was correct in charging the jury, as matter of law, that the defendant was guilty of negligence,- this question is of no importance, and will not be discussed.
The judgment must be affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is an action upon a bond executed by Shields & McNamara as principals, and C. W. Richardson and defendant Pack as sureties. The obligee in the bond was Monroe Klock. The facts in the case are, briefly, these: Klock held in his hands a fund derived from the sale of goods belonging to the firm of W. A. Soule & Co., upon a mortgage executed to Klock as trustee. A part of the indebtedness secured by the mortgage was a claim of Burnham, Stoepel & Co., and the fund in the hands of Klock would, but for the interference of Shields & McNamara, have been payable to Burnham, Stoepel & Co. Shields & McNamara brought an action against Burnham, Stoepel & Co., claiming that Burn-ham, Stoepel & Co. were indebted to them in the sum of $400, and at the same time sued out a writ of garnishment directed to Klock, which was duly served upon him. Klock made disclosure, showing that he had funds in his hands and under his control belonging to Burn-ham, Stoepel & Co., to the amount of $1,900. The bond in question was given. It recites that this money is in the hands of Klock, and payable to Burnham, Stoepel & Co., of Detroit, and that “whereas, said principals above named have and bring a claim against Burn-ham, Stoepel & Co. for legal services, and have instituted a suit for the recovery of the same against said last-named firm, and have served a writ of garnishment upon said Monroe Klock, which suit is now pending; and whereas, said principals are desirous that the said Klock shall pay to them of the money so garnished the sum of $400, agreeing to save him harmless by reason of his so doing.” This was followed by a condition to “save and keep and bear harmless the said Monroe Klock in the premises of and from all harm and damage by reason of paying to them the said sum of $400.” Shields & McNamara failed to prosecute their suit to effect. Burnham, Stoepel & Co. thereupon filed a bill in the Wayne circuit court in chancery to compel Klock to account to them for the amount due them, including the amount so paid to Shields & McNamara, with interest thereon to the date of the decree. Klock having deceased, and plaintiff having been appointed as his executrix, she executed an assign ment to Burnham, Stoepel & Co. of all right, title, and interest of the estate of Monroe Klock in, to, or under the bond aforesaid, and authorized them to bring suit and enforce collection for the amount due thereon, either in their own name or in the name and behalf of the estate, any sum realized upon the bond to apply upon the amount due from said estate to Burnham, Stoepel & Co. On the trial, these facts appearing, the learned circuit judge directed a verdict for the plaintiff. Defendant brings error.
Two grounds of error are alleged:
First. That the transaction is void on grounds of public policy.
Second. That it does not appear that either Klock or his executrix has been damaged, for the reason that the judgment has not been paid.
1. The ground of defense chiefly relied upon in the court below is that the transaction is void on grounds of public policy. It is undoubtedly true, as contended by defendant’s counsel, that a bond conditioned to save harmless the obligee from the consequences of an unlawful act is void. The case chiefly relied upon by defendant’s counsel, and which is said by him to be on all fours with the present case, is Buffendeau v. Brooks, 28 Cal. 641. In that case an injunction had been issued restraining the sheriff from selling certain property. Of this the sheriff had notice. A bond was given to indemnify him from any loss by reason of his proceeding to violate this injunction. It was said that the sale involved a willful and apparently deliberate disobedience to public authority, and it was held that an action could not be maintained upon the bond. That is clearly not this case. The payment to Shields & McNamara violated no statute. 3 How. Stat. § 8058, provides that the garnishee shall pay no money to the principal defendant after service of the writ. This enactment is for the protection of the plaintiff. It does not, in terms, preclude payment to the plaintiff, and it cannot be said that Klock violated the mandate of the court in paying the money as he did.
It is urged with much force that the payment of the money to Shields & McNamara was in violation of the duty of Klock as trustee. The situation was peculiar. Upon the service of the notice it became impossible for Klock to make payment to the principal defendant with safety. Must the garnishee hold the fund during the litigation, or may he in good faith turn it over to the one claiming that he will ultimately entitle himself to it, and take indemnity? As Shields & McNamara, the principals in the bond, put the case to Klock, they had a claim against Burnham, Stoepel & Co., and had instituted proceedings to recover it. Klock had been charged as garnishee. If Shields & McNamara made their claim good, as they asserted it, the money would never become due to Burnham, Stoepel & Co., and the payment by Klock to Shields & McNamara would violate no trust, but would simply anticipate the payment which he. would ultimately be required to make by order of the court. We do not think that under these circumstances any principle of public policy was violated, assuming the facts to be as by the terms of the bond they were represented to Klock by the principals therein, of which terms of the bond the sureties, of course, must be held to have had notice.
2. It is contended that the condition of the bond has not been broken, for the reason that it does not appear that the judgment has been paid. It appears, however, that judgment had been obtained, and that this bond was assigned to pay the judgment when realized on. This was a conditional payment. The executrix parted with the bond for that purpose, and the case is, we think, within the principle of White v. French, 15 Gray, 339, and Howe v. Freidheim, 27 Minn. 294.
It is suggested that this assignment to Burnham, Stoepel & Co. was not alleged in the declaration. The only objection which appears in the record to the testimony is that defendant’s counsel objected to the introduction of the same item by item, and paragraph by paragraph, as the same was being read to the court, upon the ground that it was incompetent to introduce any proof which would in any way add to, take from, or in any way modify or change, the language or legal effect of the bond declared upon; and also upon the ground-that said testimony was incompetent, irrelevant, and immaterial under the pleadings in the case. It does not appear that the distinct point now urged was made. If it had been called to the attention of the court, an amendment might have been, and indeed should have been, allowed, and we think the judgment should not be reversed on any such alleged infirmity.
Judgment affirmed.
The other Justices concurred. | [
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Hooker, J.
The defendant, in the capacity of sheriff, levied upon and sold a stock of goods to satisfy an execution against the owner; and the stock, being bid in by the execution creditors for $1,800, was turned over to them. Previous to the time of the levy, Pohoral, the owner, had given several mortgages upon the stock, the first being to Clara Louden, his sister, for $3,500; the second to the plaintiff, his brother-in-law, for $1,000, subject to the Louden mortgage; and the third to his attorneys, for $1,500, subject to the two mortgages before mentioned. At the time of the seizure of the stock by the defendant, Pohoral claims to have been in possession of the stock as representative of the mortgagees. Clara Louden brought an action of trover against the defendant, and recovered a judgment for $3,184.65 and costs; and this, being affirmed by this court (108 Mich. 313), was paid by Buhl Sons & Co., the execution creditor. Thereafter this action of trover was brought by the plaintiff, owner of the second mortgage, and, from an adverse judgment of $659.50, the defendant has appealed. We will endeavor to dispose of such questions as we think it necessary to discuss, in the order in which they were raised.
At the conclusion of the plaintiff’s evidence, counsel for the defendant moved the court to direct a verdict for his client, which being denied, he proceeded to introduce evidence in defense of the action. As he did not see fit to rest his case at that point, we need not consider this question.
The defendant introduced evidence tending to show that the plaintiff had received from Pohoral a deed of a city lot worth from $300 to $600, and asked the court to charge the jury that the amount of Pohoral’s indebtedness to him, if there was such indebtedness, should be reduced to the extent of the value of said lot, which request was refused. The plaintiff claims that the only interest that he had in this property was a lien upon it for a debt, but the defendant maintains that, if this were so, it would make no difference. Had his debt been paid or partly paid, such payment would go in reduction of the damages. But, if he had other security merely, it is another matter. The logical result of the defendant’s last contention is that, in all cases of levy'on a portion of the property covered by a chattel mortgage, the defendant in % suit brought by the mortgagee for conversion by levy and sale upon execution running against the mortgagor would be a,t liberty to defend on the ground that, while he levied upon and sold a part of the mortgaged property wrongfully, yet, as he had left sufficient to pay the plaintiff’s debt, the plaintiff had suffered no injury. In a case like the present he might defend upon the ground that the plaintiff had ample security under another instrument, e. g., a real-estate mortgage; although this defense, if allowed, might subject the plaintiff to the annoyance, expense, and delay of foreclosure of such mortgage, to. say nothing of its violation of the rule that the creditor may choose between securities, and avail himself first of one or the other, at his option. In Jones on Chattel Mortgages (4th Ed.), § 448, it is said that “he [the mortgagee] is not obliged to look to the personal responsibility of his debtor, or to show his insolvency before recovery of the wrong-doer. Neither is he required to first look to any other security he may hold.” See cases cited, note 2. In the case of Worthington v. Hanna, 23 Mich. 532, this subject was discussed upon an objection that the declaration failed to allege the insolvency of the mortgagors, and that the mortgagee had no other security. Mr. Justice Campbell said:
“We do not think this objection well founded. It is based upon an idea that there is some substantial difference between the damage done to a mortgagee in possession and to a mortgagee out of possession, by the seizure and conversion of the goods. It is not questioned that a mortgagee in possession may sue in trover, and recover for the conversion of property, whether he has other security or not, and whether or not his debtor is solvent. We see no possible foundation for holding that possession or present right of possession should make any difference in regard to the quantum of damages, within the extent of the security. The doctrine alleged would be equivalent to holding that no person could have a legal right to complain of being deprived of a security unless he could show the insolvency of his debtor; or, in other words, that any wrong-doer could, at his pleasure, compel the holder of a security against a solvent party to look only to the personal remedy, and give up the security. This is too unreasonable á doctrine to be entertained.”
But there is evidence tending to show that Pohoral sold this lot to the plaintiff, and, while the price was not stated, there is opportunity for the claim that it was designed to he applied on Pohoral’s indebtedness. We think this question should have been left to the jury, and, if they so found, the price or value of such lot should have been applied in mitigation of damages. For this error the judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Moore, J.
The bill in this case was filed March 18, 1895, to obtain an accounting of the moneys paid by complainant to defendants Hickey, Tannahill, Caswell, and Kern under a land contract between them dated March 1, 1893, and to foreclose his vendee’s lien upon the premises in question. These defendants filed an answer in the nature of a cross-bill to foreclose the contract. A decree was made in favor of the defendants for the greater part of what they claimed. Both sides appealed.
March 1, 1893, complainant entered into a contract in writing with defendants Hickey, Tannahill, Caswell, and Kern, whereby they agreed to sell and convey to him land in the township of Greenfield, described as follows:
“Bounded on the west by the westerly line of the southeast quarter of section 10; on the south by the center line of the six-mile road; on the east by a line parallel with the westerly boundary of said property, and being the dividing line of the properties formerly known as the J. Stebbins and the H. Valentine farms, said eastern boundary line running northerly from the said six-mile road to the southern boundary line of the northeast quarter of said section 10; on the north by the southerly boundary line of the northeast quarter of said section 10,— containing twenty-three and 3-100ths (23.03) acres, more or less.”
It was agreed that the exact dimensions and extent of said land should be ascertained by a survey to be made at the expense of defendants. Complainant agreed to purchase and pay for the land at $750 per acre; $6,037.75 on the execution of the contract, and the balance April 8, 1895, with interest at 6 'per cent, per annum, payable semi-annually. The complainant was not to assign the contract without the consent of the defendants. They were to consent to the assignment of the contract if the assignees were of equal financial responsibility with complainant.
Mrs. Yemans was the owner of the 26 acres next east of the land described in the contract. Between the two pieces of land was a ditch. On the west bank of the ditch was a fence, leaving a small strip of land between the fence and the center of the ditch, that was occupied by Mrs. Yemans, but which the defendants claim they owned when the contract was made, and which they insist was included in the contract. The defendants caused the land to be surveyed by Mason L. Brown. He surveyed only that part west of the fence. According to his survey, there was 23.438 acres of land. Later he made a survey which embraced all the land west of the center of the ditch. This survey showed 23.755 acres. The complainant was not satisfied with this survey, and agreed that, if the county surveyor was employed, and his survey showed there was as much land as was shown by the last survey made by Mr. Brown, he would abide by Mr. Brown’s survey. The county surveyor was employed, and his survey showed there was 23.98 acres of land. The parties, however, failed to arrive at a settlement.
There was a controversy as to the ownership of the strip of land between the fence and the ditch. The defendants held their title through a contract running to them from John B. Moloney. On May 10, 1894, a written agreement was made between Mr. Moloney and Mrs. Yemans, in which the descriptions of land claimed by the respective parties were set out, and an agreement was made that, until the line of said ditch changes from the first direction to a more easterly or northeasterly course, the center of the ditch should be recognized “to be the line and actual line of division between their respective properties.” It was further provided that Mrs. Yemans, “her heirs, assigns, or administrators, have no right, title, interest, or claim of any kind, name, or nature in and to any part or portion of the land lying between the fence above described and the center of said ditch.” This instrument was signed, sealed, and acknowledged by the parties, and executed in duplicate, and one of them was tendered by the defendants to the complainant.
In the fall of 1894 the complainant assigned his contract to his sons, living in Muskegon. September 10, 1894, the contract, with the assignment, was presented to the defendants, with a request that they consent to the assignment. At the same time, and as a part of the transaction, a request was made of them to sign a receipt for “$336.37, being the interest due September 1, 1894, on a certain contract for 23.03 acres of land,” etc. They declined to sign the consent for an assignment on the basis of 23.03 acres, but signified their willingness to do so upon the basis of what acreage there actually was of the land. On September 24, 1894, the complainant made a payment on the land contract “of $336.37 on account of interest due September 1, 1894.” No attempt was ever made by complainant to rescind the contract on account of the disputed strip of land, - and no attempt was made to rescind it because of the refusal to consent to the assignment, until this bill was filed, March 18, 1895. The bill is filed for the purpose of rescinding the contract, and to recover for the payments made thereon and interest.
The defendants filed an answer in the nature of a cross-bill, and for a foreclosure of the contract for the payments remaining unpaid, and for a sale of the land. The circuit judge was of the opinion that, if the complainant had the right to rescind because of the condition of the disputed strip of land, notice of which came to complainant in the summer of 1893, or because of the refusal of the defendants, September 10, 1894, to consent to the assignment, it was his duty to act promptly. The judge held that, complainant’s having made a payment subsequent to the act of which he complains, and having continued to exercise acts of ownership over the land, were acts inconsistent with an election to rescind, and that his delay in indicating any intention to rescind the contract until March 18, 1895, when he brought this proceeding, precluded his right to do so now; citing Farrington v. Smith, 77 Mich. 550; Condon v. Hughes, 92 Mich. 367, 369; Bedier v. Reaume, 95 Mich. 518. The bill was dismissed, and a decree granted in favor of the defendants, “based upon an acreage of 23.438 acres.
We agree with the learned judge that, if complainant intended to rescind the contract because of the defendants’ refusal to perform its conditions, it was his duty to act promptly, and that he failed to do so. We cannot but conclude from the record that, had this land increased in value instead of depreciating, this bill would not have Been filed.
The defendants have appealed, and claim they should have been allowed to recover for the land between the fence and the ditch. An inspection of the record shows that the conveyance to Mrs. Yemans makes the line of the ditch her west line. The conveyance to Mr. Moloney makes the line of the. ditch his east line. The testimony also discloses that Mrs. Yemans has not, at any time, and does not now, make claim to any more than 26 acres of land. Whatever else may be the effect of the instrument executed by her and Mr. Moloney, May 10, 1894, we think it decided that the center of the ditch was the line between the land owned by Mrs. Yemans and the, land described in complainant’s contract. The Brown survey shows that, treating the center of the ditch as the division line, there is 23.755 acres of this land. As the complainant agreed to abide by this survey if the survey made by Mr. Goodell should show there was as much land as Mr. Brown’s survey showed, and, as the Goodell survey showed there was even more of the land than was shown by Mr. Brown’s survey, it is not inequitable to require payment on the basis of 23.755 acres. The decree will be modified in that respect, and affirmed, with costs.
The other Justices concurred. | [
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Hooker, J.
Breck, a dealer in sheep, sold to the defendant a ram named “Sir Thomas.” The defendant claims that this sale was accompanied by a warranty, and this the plaintiff, who is assignee of Breck’s administrator, disputes. The price of Sir Thomas was $105, for which defendant gave his note, which, getting into the hands of a bona fide holder, he subsequently paid. A few months after the sale, the defendant wrote Breck, complaining that Sir Thomas was a failure as a stock getter, and on November 30, 1894, Breck wrote a letter expressing con fidence in Sir Thomas, and offering to send another, which he stated to be “a ram that proved very successful this fall, and which is an excellent sheep.” On December 8th Breck wrote as follows:
“December 8, 1894.
“Mr. Jacob L. Miller,
“Caledonia, Mich.
“ Dear Sir: Your letter came a day or two ago, but I was busy in court, and did not read it until today. As today is Saturday, I will wait until Monday, and ship you one of my best and surest stock rams; but he is no more so than Sir Thomas has always been considered. There must be something the matter with your ewes, or the water on the place, or something of the kind. * * * However, I will let you take this ram, to be returned to me in good condition, and free of expense, on or before the 1st day of March, and I think you should keep him until that time for the use of him, and I will charge you nothing if he is returned in good condition; but, if you should not return him, he will cost you $40, and I will make the charge in that way on my books.
“Yours truly,
“George E. Breck.”
This ram was received by the defendant, and it is claimed that he proved of no value as a stock getter, that he got but 13 lambs, where he should have gotten 33, and, of these, 7 died, and 5 were worthless, by reason .of the glute, which they inherited from the ram; and that the defendant did not discover this condition of the ram or his lambs until April, when it was past the time set for his return. Neither ram was returned. Breck died December 10, 1894, and George W. Longwell was appointed and qualified as administrator. Some negotiations were had relating to Sir Thomas and the other ram, but the administrator refused to do anything about the matter. The defendant purchased from the administrator some ewes, and wanted to have .their cost turned upon his claim growing out of the former deal, but to this Longwell would not consent. These two ewes were bought on February 19th, at $33.50 each. They were never paid for. This action is brought for the price of the second ram, $40, and of the two ewes, $65. Upon the trial the defendant sought to recoup damages as follows:
First, damages occasioned by the failure of the two rams to comply with the warranty which he alleges them to have been purchased under.
Second, damages upon the ewes, which he claims were not of the character represented.
Third, damages growing out of misrepresentation concerning the sire of the lambs born of these two ewes, and with which they were pregnant when bought.
These alleged warranties were oral, and it was therefore for the jury to determine whether there were any such warranties or not. It is said that this is not so as to the second ram, which was purchased through correspondence, and that it was for the court to construe this contract. This would be so were it not for the fact that there is opportunity for the claim that he was delivered by Breck with the understanding that, if the defendant should conclude to keep him, he should be applied, at the price of $40, on the price of Sir Thomas, and with the expectation that Sir Thomas would be returned, or, if not returned, that the price- of the second ram ought to be subject to reduction by damages sustained through the breach of warranty of Sir Thomas. The court allowed the jury to consider the question of damages for inferiority of the lambs and of the rams, and the failure to get lambs from the defendant’s flock. In this connection he submitted to the jury the question whether the purchase of the rams constituted one transaction. The plaintiff appeals, and raises several questions, the following being the more important:
1. That there could be no recoupment growing out of the purchase of Sir Thomas.
2. That there could be no recoupment against the administrator for a breach of contract made with deceased in his lifetime.
3. That there could be no recoupment and set-off of any claim without first presenting it for allowance to commissioners on claims.
Counsel contend that it was not within the power of the administrator to bind the estate by a warranty of soundness, upon sale of a personal chattel at private sale. The only authority cited in support of this proposition is 7 Am. & Eng. Enc. Law, 296, and cases there cited. An examination of these shows that some of them involve the sale of land, which an administrator can only sell under statutory authority, and generally under a license from a court, by neither of which is he usually authorized to do more than sell the interest of the intestate. Such were the cases of Sumner v. Williams, 8 Mass. 162 (5 Am Dec. 83); Lynch v. Baxter, 4 Tex. 431 (51 Am. Dec. 735). The case of Mockbee’s Adm’r v. Gardner, 2 Har. & G. 176, decides that an implied warranty of title does not arise against an administrator who sells a slave. The opinion, however, ventures the statement that—
“Where fraud exists, or there is an express warranty, tie would undoubtedly be personally answerable to a purchaser in case of eviction; * * * and, while this exception from the general principle exists in their favor, we by no means intend to assert that they would not be answerable, in case of a failure of title, while the purchase money for the property sold remained in their hands undistributed and unadministered.”
See, also, Joslin v. Caughlin, 26 Miss. 134, 142. Several cases hold that an administrator may bind himself personally in a sale of property by a warranty. See Buckels v. Cunningham, 6 Smedes & M. 358, 365; Sumner v. Williams, 8 Mass. 162 (5 Am. Dec. 83). The case of Ramsey v. Blalock, 32 Ga. 376, holds that “an administrator cannot bind the estate of his intestate by a warranty of the soundness of an article sold by him.” The “article” in this case was a slave, and perhaps the use of the word “article” implies that it was a chattel, instead of realty, as considered in some States; but we have not the means at hand of determining whether this decision turned on a statute, or was thought to enunciate the common-law rule. See 2 Williams, Ex’rs (7th Am. Ed.), 133, note, where it says the estate is not bound by the warranty of an administrator. In the case of Craddock v. Stewart’s Adm’r, 6 Ala. 77, 80, it was held that at common law “an administrator, in virtue of his powers as such, can make a warranty of the soundness of personal property belonging to the intestate’s estate.” We are of the opinion that this states the better rule. See White’s Heirs v. White’s Adm’rs, 3 Dana, 374.
We see no legal impediment to the recoupment of damages in a suit upon a contract made by the administrator, as a claim upon such a contract is not a matter to go before commissioners. The sale of the two ewes was a contract of that kind. Willard v. Fralick, 31 Mich. 431. The same would be true of the purchase of the second ram, if the plaintiff is right in his claim that it was purchased from him, and not from Breck. We discover nothing to show that there were any negotiations between Longwell (the administrator) and the defendant, looking towards a sale of the ram, and counsel only claim such sale as the result of the application of legal principles. All of the negotiations occurred before Breck died, and the property was delivered by him. But it is said that it was a bailment with an option, and only became a sale when the defendant exercised his right to purchase, and signified his intention by keeping the animal beyond March 1st; that until that time no title passed. It cannot be gainsaid that the title remained in Breck and the administrator, but does it follow that the contract relations were between the administrator (instead of Breck) and the defendant? The contract was complete before Breck died, and the administrator had only to carry it out. He made no promise, nor did the defendant make any to him. All promises were made before Breck’s death. Even the conditional promise to pay was implied by his receiving the ram, and it became absolute when the time transpired without the return of the animal. If we are able to say it was the contract of the administrator, it must simply be because litle did not .pass, and the promise to pay become absolute, before Breck died. What was this promise which became absolute? Can it be determined from anything that the administrator did or .said? Are we to say that it was a promise to pay cash, and that it was unconditional? May we not inquire whether it was a promise to pay in some other commodity, or to some ether person, or was subject to some rights growing out of the bargain under which the ram was delivered, and possibly in pursuance or modification of, and therefore a part of, such first contract ? And, if we may, does it not follow that the claim that this was a contract with the administrator is untenable ? The essence of the -transaction occurred without his intervention, and before his official existence. To our minds, it is clear that the contract relations, as to the rams, existed and were complete before Breck died; and the rights of the defendant fall within the category of claims against a deceased person, rather than those acquired during and in course of the settlement of the estate. McKeown v. Harvey, 40 Mich. 226.
Were Breck living, and a party to this litigation, we should have no doubt that the questions relating to both rams would be for the jury; and we see no reason why the same is not true in this case, unless the failure to present defendant’s claim to commissioners precludes it. The case of Quinn v. McGovern, 97 Mich. 114, discusses a similar question and the statute (2 How. Stat. § 5901) which is relied on by plaintiff in this case, the section being as follows:
“ Every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.”
In the present case it does not appear that commissioners on claims in the estate of George E. Breck had been appointed, and the opportunity given to defendant to present his claim for allowance. In Quinn v. McGovern the question involved was whether a person holding a claim against an estate, which might have been made the subject of set-off in an action by the deceased, who had permitted the' meetings of the commissioners on claims to transpire without presenting his claim for allowance, could thereafter set off such claim in an action brought by the executor. On the authority of section 5901, it was held that he could not. That section provided that “every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not * * * exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.” The extent to which it was necessary for the court to go in that case was to hold that this section is to be construed in connection with sections 5905 and 7369, providing for set-offs in suits brought by executors, and that, when so construed, the statutes did not permit the Set-off of a claim barred under section 5901. In the present case it does not appear that the claim of defendant was barred by section 5901, and therefore Quinn v. McGovern does not apply; but, if sections 5905 and 7369 be held to govern the case, by analogy the defendant had the right to recoup.
Several assignments of error relate to the refusal of requests to charge, but our examination of them impresses us with the belief that no prejudicial error is shown.
The judgment is affirmed.
The other Justices concurred. | [
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Moore, J.
The complainants filed a bill in chancery which avers that they are minors; that July 7, 1885, their father, Michael Tolan, died, leaving surviving him the complainants, a widow, and five children who at the time of the filing of the bill had attained their majority. The bill avers that Michael Tolan was the owner of the north 35 feet of lots 7 and 8, block 35, of the city of Escanaba, which was clear of all incumbi’ances, except $150, which has since been paid; that said Tolan owed no debts at his decease; that July 10, 1885, an instrument purporting to be the last will of Michael Tolan was offered for probate. A copy of the will is set out in the bill, from which it appears that all the property was willed to his wife. The bill avers that the will was probated, and a distribution of the property made according to its terms; that July 6, 1886, the estate “was wound up, and the executors duly discharged; ” that complainants were all very young, and did not know the meaning or effect of the instrument, and were not represented by a guardian ad I'item, or any one else. The bill avers that the instrument purporting to be the will of Michael Tolan was not his will, but was obtained by fraud and deceit. The bill avers that June 3, 1890, Mary Tolan, widow of Michael Tolan, “executed to J oseph Hess, of the city of Escanaba, Michigan, a certain real-estate mortgage, which said mortgage is recorded in Liber G of Mortgages, on page 329, in the office of the register of deeds for said Delta county, that, by virtue of the conditions of said mortgage, said Hess, on the 16th day of February, 1895, began proceedings to foreclose by advertising; that on the 13th day of May, 1895, because of said foreclosure proceedings, the said lands were sold to the highest bidder for the sum of $1,250, or thereabouts ; that said sale purports to be a sale of the entire premises; that the said Hess is the highest bidder aforesaid. ” The prayer is as follows:
“Forasmuch, therefore, as your orators are without remedy in the premises except in a court of equity, and to the end that the said Joseph Hess, who is made a party defendant to this bill, may be required to make full and direct answer to the same, but not under oath (answer under oath being hereby waived), and that the said mortgage may be set aside and declared to be null and void in so far as the interests of your orators are concerned, and that the sale aforesaid may be set aside in so far as your orators are concerned, and that all proceedings had or to be had by virtue of said mortgage be declared null and void in so far as the interests of your orators are concerned, and that the said J oseph Hess be restrained by an injunction, to be'issued out of and under the seal of this court, from in any way disposing of 01-incumbering the real estate hereinbefore described, or from proceeding in any way with the foreclosure proceedings hereinbefore referred to, in so far as your orators are concerned, during the pendency of this suit, and that your orators shall have such other and further relief in the premises as equity may require and to this court shall seem meet.”
The bill was demurred to, and the demurrer sustained. Complainants appeal.
It will not be necessary to consider all the questions discussed by the solicitors in their briefs. Neither the widow of Michael Tolan, nor any of the five children who have attained their majority, is made a party to the litigation. There is no averment in the bill of the value of' the estate left by Michael Tolan. There is no averment in the bill which contains a description of the land which was mortgaged to Mr. Hess, nor is it averred that it was land in which the complainants have any interest, or that they are in any way harmed by the mortgage foreclosure. There are other grave defects in the bill, which it is not necessary to point out here. The circuit judge very properly sustained the demurrer.
The decree is affirmed, with the costs of this court.
The other Justices concurred. | [
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Montgomery, J.
This is an action of ejectment, to recover lot 1 of section 34, township 42 N., range 16 W. Plaintiff’s title is a tax deed, made under a decree entered under Act No. 206, Pub. Acts 1893. The plaintiff recovered, and defendants bring error.
1. Complaint is made that the decree entered was countersigned by the register. The statute provides that the decree shall be signed by the judge and countersigned by the clerk. The county clerk is, by virtue of his office, register in chancery. The proceeding is on the equity side of the court, and we think it is no defect that the title of “register” is used in place of “clerk.” The register in chancery is the clerk of that court, although the title which he assumes is register, and the identity of the person is unquestioned. A similar objection is made to the certificate annexed to the tax record, in the body of which the clerk describes himself as county clerk and register in chancery, and signs the certificate, “Ed. Ashford, Register in Chancery.” We think this was sufficient.
2. It is strenuously contended that the law is unconstitutional, for the reason that it contemplates that the chancery court, which by the Constitution is a court of record, shall not be under the necessity of entering a complete decree, to be retained in its own custody, but that the tax record is to go out of the possession of the court, and into the possession of the county treasurer. A similar provision has been upon the statute books for many years, and this question has never before been directly raised, although the law has been upheld in numerous decisions. We are cited in the brief of counsel to a criticism of a similar provision of the law of 1882 in the opinion of Mr. Justice Campbell in the State Tax Law Cases, 54 Mich. 406. We think, however, that there is no such excess of legislative authority in the provisions of this law as justifies us in declaring the act unconstitutional. The statute (section 67) provides that—
“ The decree shall be signed by the judge and countersigned by the clerk. Immediately after the entry of such decree, the county clerk shall make a certified copy thereof, and annex the same to the tax record. He shall thereupon deliver such tax record to the county treasurer, in whose office the same shall remain, except as needed in the office of the county clerk.”
It is apparent that it was not the purpose to withdraw from the control of the court this tax record. It is only to remain in the office of the county treasurer when not needed in the office of the county clerk, which is the office of the court, and we have no doubt of the power of the court at any time to possess itself of the tax record for any purpose for which it may be required. While it might have been wiser to provide for duplicates of this tax record, we think the evident purpose was that the tax record should remain a part of the records of the court, and subject to its control, and that the law is not, for the reason suggested, unconstitutional.
None of the other questions discussed are, we think, open to consideration, within the rule laid down in Muirhead v. Sands, 111 Mich. 487.
The judgment will be affirmed.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts). 1. It is insisted that the settlement with Mrs. Lathrop affirms the decree as to Mrs. Lloyd. In support of this contention, counsel rely upon Banks v. African M. E. Church, 81 Mich. 371. That case and this are not parallel, as an examination will readily show. In the former the appeal was dismissed in this court as to one. defendant, who was a necessary party, and without whom before the court no relief could be granted. For this reason the bill was dismissed for want of necessary parties. In this case, under the former decree, the only questions to be determined upon the second hearing were the value of the advancement to Mrs. Lloyd and to Mrs. Lathrop, and the amount that each should pay to the complainant in order to carry out the will of the testator. These amounts were found by the decree, and we see no reason why the complainant might not settle with one defendant and continue her suit as to the other.
2. The court found that Dr. Pulling, after the execution of his will, advanced to complainant $1,100, for which the decree held her responsible. In this we think the court was in error. There is no testimony tending to show that he gave complainant this money as an advancement. It was given to complainant, in sums of $100 each, to help support herself and children when she was in great trouble and financial distress on account of her husband’s financial failure and his arrest upon a •charge of crime. After the death of Mrs. Lloyd’s husband, she and her children lived for some years with her father at his home, and were mainly supported by him. There is no more reason for holding that he intended "these small sums sent to complainant for her support as an advancement upon the bequest to her than that he intended the expense for the support of Mrs. Lloyd and her children to be an advancement to her.
3. The court found that, Dr. Pulling had invested $6,500 of money belonging to Mrs. Lloyd in the house and lot conveyed to her. Upon the question of the money intrusted by Mrs. Lloyd to her father, how it was invested, and how much he paid her, there is a large amount of testimony, and it is difficult to arrive at a satisfactory conclusion. Neither kept any account of the money or the use made of it. It is very doubtful whether any of it went into this building, of whether there was any agreement in regard to it when the deed was made. It is clear that he received money from her, and she testified that he agreed to pay her 6 per cent, interest. She received payments, but cannot tell to what amount. After giving as careful an examination as possible, we have concluded not to disturb the finding of the court upon this point.
4. The decree finds the value of the house and lot deeded to Mrs. Lloyd to be $12,500. We cannot concur in this finding. The bill of complaint alleges that at the date of the deed to Mrs. Lathrop, August 5, 1889, the lot deeded to her was then worth, and still is, the sum of $10,000; that the value of the lot deeded to Mrs. Lloyd was, when deeded, October 28, 1889, and still is, $14,000. The answer, signed by both defendants, denies that the lot deeded to Mrs. Lathrop was in August, 1889, or has been since, or is now, worth $10,000, and avers that it was not worth to exceed $7,500. As to the value of the lot deeded to Mrs. Lloyd, the answer says: “ They admit that the land, with the buildings thereon, described in the latter part of said paragraph fourth, is worth the sum of $14,000.” We think it too narrow a construction to be placed upon this admission in the answer to hold that it refers to the time when the answer was filed. The consideration expressed in the deed is $14,000. We also think it established by a fair preponderance of the evidence that the property was then worth that amount. It is apparent that the value as fixed in the decree is based upon the supposed cost of the land, including the buildings, rather than upon its actual value.
The decree will be modified in accordance with this opinion. Complainant will recover her costs in this court.
The other Justices concurred. | [
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Grant, J.
{after stating the facts). This contract was signed by the defendant himself, and not by Shelley & Simpson as agents. It appears that they had no authority to sign contracts. When a sale was agreed upon, the contracts were taken to the defendant for execution. Defendant once or twice signed contracts in blank, leaving them to be filled out by Shelley & Simpson, upon the terms agreed upon. But this contract was evidently not one of those, if the testimony of complainants is true. The defendant, in his argument, treated the relation of Shelley & Simpson to this transaction as purely an agency, and as if they were authorized to sign contracts in the name of their principal. If this were so, and Shelley & Simpson had executed it as agents, the defendant would clearly be right. Shelley & Simpson had no authority to make such a contract, and the provision in question was of so unusual a character that it would not come within the scope of an agency to sell lands; and in such case the purchaser would act at his own .risk, it being his legal duty to inquire into the authority of the agent. But that rule does not apply here. If this contract was signed by the defendant with this provision written in, it is binding upon him. Upon the determination of this question must depend the result reached. There was no finding by the learned circuit judge, and we are unable to determine upon what basis he made his decree. Complainants testified that Shelley & Simpson brought them an unsigned contract without this provision in; that they declined to sign it; that Shelley & Simpson took it away, and, a day or two after, brought another contract, in duplicate, with this provision written upon the margin; that defendant’s signature was not then attached; that they (complainants) then signed the two; that they were taken away, and one of them was subsequently returned to complainants by Shelley & -Simpson, with the defendant’s signature attached. His signature was also attached to the duplicate, and retained among the papers of the syndicate in the office of Shelley & Simpson. The defendant, on his direct examination, testified that he did not sign this contract with this rider upon it, and that he never knew of the existence of such a contract until complainants called his attention to it after the failure of Shelley & Simpson. On his cross-examination the following question was asked:
“Then, as I understand, you emphatically deny that you signed that contract after it had been filled out ?
“A. Yes; as far as I can possibly recollect now.”
Mr. Lodge and his associates had the utmost confidence in the honesty and integrity of Shelley & Simpson. We think it far more probable that this contract was signed by the defendant without reading it, than that the complainants are mistaken in saying that the contract was signed by them before it was signed by the defendant and delivered to them. If Mr. Lodge signed it with this provision in it, it is, of course, binding upon him, whether he read it or not. It was his duty to examine the contract, to know what he signed, and complainants cannot be made to suffer for this neglect upon his part.
It follows that this decree must be affirmed, with costs.
The other Justices concurred. | [
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Long, C. J.
This action was brought to recover the cash price for certain goods sold by the plaintiff to the defendants, amounting to $519.78. It appears that one A. B. Love was a traveling salesman for the plaintiff. Defendants were merchants, doing business at Midland, this State. Love called upon them at their store, and there an arrangement was made by which the defendants agreed to take from the plaintiff certain goods, on condition that they could turn out a certain note they had against other parties; and defendants contend that in turning out the note they were not to become liable thereon, but were to turn it out as cash. After the first visit of Mr. Love to the defendants, he wrote the plaintiff in reference to the talk lie had had with them about the sale of. goods, and on November 19, 1894, the plaintiff answered him, as follows:
“ Yours of 17th, from Adrian, at hand, and we are glad to hear from you. Beg to say we hope you will get a nice large order from Gordon & McCann for goods in our line, and, if you do, the same will be all satisfactory if it is settled for on the basis you write us, provided the notes have good indorsement; and their indorsement, we believe, is all right. We hope, however, you will be able to arrange it so that they could pay part cash and part in these notes which you speak of,” etc.
On the 24th of November, Mr. Love wrote the plaintiff in answer:
‘ ‘ Inclosed please find order from Gordon & McCann, of Midland, Mich. You will remember I wrote you about this deal with Gordon & McCann, in reference to their turning out notes to you instead of cash,—notes that they took in the way of trade; and in view of their enlarging their business, and wanting a large purchase of goods, and not wishing to feel in debt for them, is why they want to turn over the notes now. Usually they hold the notes themselves until they mature, and it is not likely they would want to give them out this way for future purchases; so I think you had better take the notes this time, and thereby secure a good customer. The notes bear 7 per cent, interest, are drawn by the Cleveland Wooden Ware Company, of Midland, Michigan, are signed by W. B. Remington as president, and are also indorsed by W. B. Remington personally. Now, W. B. Remington has a large amount of stock in the Cleveland Wooden Ware Company, of Midland, is interested in the Saginaw Box Company, of Saginaw, and is also the Remington of the firm of Remington & Horton, of Grand Rapids; so you can look him up at each of these three places through the agency. And in the meantime please be getting the orders out at once,—the very quickest you can,—and, when you ship, send a tracer after, to hurry the goods forward. I fully expect that you will find the notes acceptable, so do not delay getting the goods out while waiting for reports. It is fully understood that the notes must be such as you will approve,” etc. -
The goods were shipped to the defendants, and received by them, and they in turn sent the note forward which the agent of plaintiff had selected, and to which he referred in the letter above quoted. On December 26th, the plaintiff acknowledged reeeipt of the note for $500 and a post-office order for $4.62, and wrote in reference to this note:
“The understanding between us and Mr. Love and between you and him, according to the way he wrote us, was that we were to accept this note from you, made out as this one is, providing said note or notes were acceptable to us; so we again repeat that they are acceptable to us, except that we want your indorsement, properly made, as well as Mr. Remington’s. ”
Plaintiff returned the note, as well as the post-office order. It appears the defendants had indorsed the note “without recourse.” Plaintiff thereafter, contending that the Cleveland Wooden Ware Company and Mr. Remington were irresponsible, brought suit against the defendants. No demand was made by the plaintiff for the return of the goods before suit brought, but it proceeded upon the theory that it had the right to i’ecover the cash price as upon a cash sale. Defendants contend: First, that Love had authority to make the arrangement which was made to receive the note in payment of the goods, well knowing that they did not intend to pay cash, but to turn the note out in payment; and, second, that the plaintiff was informed by the letter of November 24th, written by Love, just what the character of the note was; and that, after receipt of this letter, the plaintiff shipped the goods, and thereby accepted the terms of the contract made by its agent. It was further claimed upon the trial by plaintiff that Mr. Love, at the time of taking the order from the defendants, delivered a copy of the same to them. This was denied by the defendants. It seems this order contained the words: “Terms cash, or approved notes, bearing 7 per cent, interest.” The jury, upon the special question submitted to them, found that no copy of the order was ever shown the defendants.
The court, in its charge to the jury, directed them, after reading the correspondence between the parties, that—
“If the contract made by Love with the defendants was as claimed by the plaintiff, and the notes were to be subject to the approval of the plaintiff, it is entitled to recover in this case the amount of $519.78, with interest at 6 per cent, from the 24th day of January, 1895; but, if the contract made by Love and the defendants was as claimed by the defendants, I think it was the duty of plaintiff, upon receipt of the letter of December 24th, reading as follows: ‘ Inclosed you will find note of $500 and post-office order $4.62 to pay our bills to date. This is the arrangement made with your Mr. Love; we to receive 2 per cent, off the bill, and you to receive note drawing 7 per cent. That is the terms from the other houses he represented. We inclose you statement of the same. Please send us receipt for the same,’—to have repudiated the contract made by Love, if plaintiff did not intend to stand by it. It could not, without doing so, sue and recover from the defendants the value of the goods. No fault is found by the plaintiff with the note, except that to the indorsement the defendants added the words ‘ without recourse,’ which indorsement was sufficient to pass title to the note, but did not make the defendants liable thereon. But, if the contract was as claimed by the plaintiff, the note in question does not fulfill the conditions of the contract to be performed by the defendants, and in such case it had a right to approve it or not. On being advised by the defendants that they insisted that the note sent was sufficient, on tendering it back plaintiff had a right of action as claimed by it in this case; so that, if you find the contract to be as claimed by plaintiff, your verdict should be for it for the amount I have stated.”
Certainly this charge was as fair to the plaintiff as it was entitled to. The letter from its agent, November 24th, advised it fully that the note he was taking was given by the Cleveland Wooden Ware Company, signed by Mr. Remington as president, and indorsed by him personally. Plaintiff was advised of Remington’s business, and it was further advised to look him up at the three places through the agency. There was nothing in the letter indicating that defendants were to be liable upon the note. It showed only that they were turning the note out in payment, and was a sufficient notification to plaintiff of just what the arrangement was which its agent, Love, had made with the defendants; and plaintiff shipped the goods afterwards with full knowledge that the note was to be received in payment. Not until the goods had been shipped, and the note received, did it raise any question that defendants were to become personally liable upon the note. We are of the opinion that when the plaintiff accepted the order, having the information it had at the time from the letter of Mr. Love, and shipped the goods to the defendants, it was an acceptance and approval of the note, and ratified the entire contract; and that when the defendants sent the note to the plaintiff it fully satisfied the latter’s claim.
The judgment must be affirmed.
The other Justices concurred. | [
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Moore, J.
This is a proceeding to foreclose a mortgage dated November 2, 1876, given by David Bratton to complainant Wheeler. The mortgage was in the usual form. It was for $1,500. The proviso was that “if the party of the first part shall pay * * * to the party of the second part the sum of fifteen hundred dollars six months from the date hereof, according to a promissory note of even date executed by said Bratton to said Wheeler, * * * to which this indenture is collateral security,” the note and mortgage were to be void. At the time the mortgage was given, defendant Slee had a mortgage upon the premises described in the Wheeler mortgage, which was on record. The Wheeler mortgage was put upon record soon after it was given. May 10, 1880, Bratton sold the premises to Sidney Case, and he sold to defendant Lizzie Johnston, April 13, 1881. When the Wheeler mortgage was given, there was a large two-story building on the land described in the mortgage, which constituted the chief value of the property; the value of the lot alone not exceeding $300. After Mrs. Johnston got the property, she moved the building to another piece of' ground owned by her. October 17, 1881, Mrs. Johnston gave a mortgage upon the lot to which she had moved the building to one Robinson. After the foreclosure proceedings were commenced, Robinson was made a party.
The bill of complaint avers that, when the Wheeler mortgage was made, the complainants were wholesale grocers in Detroit, and that Bratton was a customer of theirs at Alpena, engaged in the retail trade. It also avers that, at the date of the mortgage, Bratton was indebted to complainants in the sum of about $700; that he also wanted to buy more goods, and that the mortgage, though given to Wheeler, was in fact given for the benefit of both Johnson and Wheeler, and for the purpose of securing the indebtedness to them from Bratton, and also to secure future advances in the way of goods; that complainants were to continue to furnish goods, and that Bratton was tomate payments from time to time; that his payments should be credited on his general indebtedness, and not upon the note and mortgage. The bill further avers that complainants did supply Bratton with goods, and that he made payments upon his general indebtedness, but that he never paid the entire amount secured by the mortgage, and that there was due from him, at the time of the filing of the bill of complaint, July 24, 1882, about the sum of $1,082. The bill also sets up the various transfers of the property as heretofore stated, and claims that the removal of the building by Mrs. Johnston was done to cheat and defraud the complainants. The bill asks for a decree for the amount due from Brat-ton, and that not only the land described in the mortgage may be sold to satisfy the decree, but that the building now on the land of Mrs. Johnston may be sold, if the land does not sell for enough to pay the mortgage. It is the claim of Mr. Bratton that the mortgage was given to secure the debt he then owed, and the payment of the goods sold him at the date of the mortgage, and that he did not understand the mortgage to be given for the purpose stated by the complainants. The various defendants appeared in the case, and put in issue the averments of the bill. After this proceeding was commenced, complainants received from defendant Bratton $500, and released him from any personal liability, but reserved the right to pursue their lien on the property. The circuit judge made a decree in favor of the complainants for $776, and for a sale of the premises described in the mortgage, and dismissed the bill as to William Slee and Mr. Robinson. Both parties appeal from the decree.
After the Wheeler mortgage was made, Bratton paid to Johnson and Wheeler between three and four thousand dollars, and they furnished goods amounting in value to quite as much. A great many questions are raised by the record, but, in our view of the case, it is not necessary to discuss them all.
There was no written agreement between complainants and Bratton that the mortgage was given for the benefit of complainants, or that it was given for any other purpose than the one stated in the mortgage and note. When complainants sought to establish the case stated by them in the bill of complaint by parol testimony, objection was made upon the ground that they sought to establish by parol an entirely different contract from the one made by the parties in writing. The general rule is that you cannot import into a written agreement a parol agreement which alters the terms or legal effect of the written agreement. 1 Jones, Mortg. § 96; Adair v. Adair, 5 Mich. 210 (71 Am. Dec. 779); Jones v. Phelps, 5 Mich. 218; Martin v. Hamlin, 18 Mich. 354 (100 Am. Dec. 181); Kimball v. Myers, 21 Mich. 276 (4 Am. Rep. 487); Beers v. Beers, 22 Mich. 42; Gram v. Wasey, 45 Mich. 223; Kelsey v. Chamberlain, 47 Mich. 241; Seckler v. Fox, 51 Mich. 92; Parkes v. Parker, 57 Mich. 57; Kulenkamp v. Groff, 71 Mich. 675 (15 Am. St. Rep. 283); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401; Rumely & Co. v. Emmons, 85 Mich. 511; McCray, etc., Cold Storage Co. v. Woods, 99 Mich. 269 (41 Am. St. Rep. 599); Cohen v. Jackoboice, 101 Mich. 409. An exception to this rule, however, is made in relation to mortgages (17 Am. & Eng. Enc. Law, 454), and parol evidence is admissible to identify the future advances intended to be secured by a mortgage. Though the mortgage, on its face, is for the payment of a specific sum of money, parol evidence is admissible to show that it was really intended to secure future advances made from time to time. 1 Jones, Mortg. § 367a; Shirras v. Caig, 7 Cranch, 34; McKinster v. Babcock, 26 N. Y. 378; Wilkerson v. Tillman, 66 Ala. 532. In Jeffery v. Hursh, 49 Mich. 31, it was held competent to show by admissions that a deed absolute in form was a mere security for a loan. See, also, Jeffery v. Hursh, 58 Mich. 247. It has been held that—
“In the absence of any specific statement in the mortgage as to the character of the advances, parol evidence may be introduced to prove what advances were intended, * * * and, if the mortgage is made to one of the firm, evidence of the advances made by the firm would be competent; * * * and it is no objection to the evidence that it necessarily proves that the member of the firm took the deed, not in his individual capacity, but as acting for and in behalf of the firm.” Hall v. Tay, 131 Mass. 192.
We think it was not error to allow parol proof of what the facts were about the giving of the mortgage, what debt it was to secure, and for whose benefit it was made.
Complaint is made about the amount found to be due by the trial judge in the decree. It is conceded by the solicitors “that the printed record, and presumably the written record, seem to be somewhat deficient as to statements.” The witnesses were not agreed as to how the account secured by the mortgage stood, and we are not satisfied that the decree, in this respect, should be disturbed.
It is the claim of the solicitors for the defendants that when Bratton paid the $500, and was released from personal liability, the effect was to discharge the debt, and with it the mortgage. This would doubtless be true, if the parties intended the $500 to be a payment of the debt, and if the agreement was based upon a sufficient consideration ; but the record shows that the parties did not intend to release the debt. The agreement was that the complainants do—
“Release said Bratton from all personal responsibility upon said account so secured by said mortgage, but do not release said debt or discharge said security, and expressly reserve said indebtedness and said security, but agree to look solely to the property covered by said mortgage for the remainder of such indebtedness. Said Bratton agrees, in consideration of said personal release, that said Johnson and Wheeler may retain said indebtedness and security, and may prosecute to a final conclusion said foreclosure suit above mentioned, so commenced by said Richard O. Wheeler against David Bratton, William Slee, Clara Matilda Slee, Lizzie Johnston, and George J. Robinson (but without cost to said Bratton), and, so far as said Bratton is concerned, may subject said property so covered by said mortgage to the payment of the balance of said indebtedness due said Johnson and Wheeler from said Bratton.”
It is also urged that the relation of Bratton and a sub sequent purchaser of the land is that of principal and surety, and that when the principal is released the surety is released; citing Coyle v. Davis, 20 Wis. 564; Sexton v. Pickett, 24 Wis. 346. The record does not show what the consideration for the release of the mortgagor was, in the last case. In the first of these cases the agreement to release the mortgagor was based upon his agreement to convey the lands to a third person, which agreement he performed. Of course, such an agreement, when executed by one party, would be binding on the other, and would have the effect of releasing the mortgagor. The subsequent purchaser of the land had the right, upon the payment of the mortgage, to be subrogated to the rights of the mortgagee, which would carry with it the right to enforce the debt against the mortgagor if enough was not realized, upon foreclosure, to pay the debt. In the case before us the instrument which it is claimed releases Bratton recites that Bratton is indebted to the complainants in the sum of $1,200, and that he is personally responsible for such indebtedness. Bratton paid $500, which was applied upon that indebtedness. We do not think that was a sufficient consideration to release him from his debt, nor do we think that payment and the agreement signed by the parties released the lien created by the mortgage.
It is said to be error not to subject the building to the lien of the Wheeler mortgage; and counsel cite Turner v. Mebane, 110 N. C. 413 (28 Am. St. Rep. 697), and Partridge v. Hemenway, 89 Mich. 454 (28 Am. St. Rep. 322), and we think these cases are in point. The Wheeler mortgage was upon record when Mrs. Johnston obtained title to the land, in 1881. It was her duty to take notice of the lien created by it. We cannot subscribe to the doctrine that a lien created by a mortgage upon buildings attached to the freehold in such a way as to make them part of the real estate can be defeated by removing the buildings to another piece of real estate.
It may be urged that, as Mr. Robinson had no knowledge of the existence of the Wheeler mortgage when he took his mortgage, his mortgage should be a prior lien. We understand the rule to be that when the equities of parties are equal, and neither has the legal title, the prior equity will prevail. Wing v. McDowell, Walk. Ch. 175; Norris v. Showerman, Id. 206. Applying these doctrines to this case, we think the Wheeler mortgage is the prior equity, and must first be satisfied. The proofs show that the land covered by the mortgage and the building removed from that land are valuable enough to pay both mortgages. The land covered by the Wheeler mortgage should first be sold, and, if enough money is not realized from that sale to pay the Wheeler mortgage, the building-should then be sold, and from the proceeds the balance of the Wheeler mortgage be first paid, and the surplus, so far as necessary, be applied to the payment of the Robinson mortgage. <
The decree of the court below will be modified as here suggested, and affirmed, with costs to the complainants.
The other Justices concurred. | [
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Long, C. J.
This is an action to recover a weekly indemnity under an accident policy issued by the defendant to the plaintiff on the 8th day of January, 1888, and subsequently renewed from year to year, the last renewal certificate covering a period from January 8, 1894, to January 8, 1895. On February 10, 1894, while the plaintiff was carrying wood on a wheelbarrow, he slipped and fell, dislocating his right shoulder. He claims an indemnity under the policy for a total disability for a period of 10 weeks. At the time the policy was issued, and at the time of the accident, the plaintiff was engaged in the business of loaning money on personal security and real estate. He was insured as a banker and real-estate dealer. He made two claims under this policy, the first one being made on March 12, 1894. Nothing was done in respect to this claim. Afterwards, and on June 21, 1894, the plaintiff made a second statement of claim, which was forwarded to the company by Camp & Brooks, his attorneys. In regard to this letter, the defendant wrote the following letter, dated July 2, 1894:
“Your favor of June 23d, inclosing claim blank regarding the above for an alleged injury stated to have been received February 10th, duly to hand. I beg to say that we have already received a claim blank from Mr. Turner for an alleged injury stated to have been received February 10th. We have already notified you that we fail to recognize any liability in that matter, and return the claim blank herewith. "One of our adjusters will be in Saginaw shortly, and we will have him call upon you, and discuss this matter with you. We think he will be able to show you that there is a breach of warranty in Mr. Turner’s application, and therefore no liability on the part of the company under the policy Mr. Turner holds. Kindly allow the matter to rest until our adjuster can see you, and oblige.”
Nothing more was done by either party until this suit was commenced, February 4, 1896.
The first assignment of error relates to the refusal of the court to direct a verdict for the defendant, on the ground that the suit was not commenced within one year from the date of the injury. The policy provides that “unless affirmative proof of death or duration of disability is so furnished within seven months, and any legal proceedings for recovery hereunder is begun within one year, from the time of such accident, all claims based thereon shall be forfeited to the company.” The claim of plaintiff is that the letter above quoted, written to Camp & Brooks, constitutes a waiver of this clause of the policy. On the other hand, it is contended that inasmuch as, during the time from the receipt of the. letter to the commencement of suit, no adjuster of the company called upon plaintiff or his attorneys, and there was no communication of any kind between them on the subject of the adjustment of the claim, the plaintiff was not justified in waiting a year and a hálf before bringing suit; and, again, that the statement in the letter requesting him to let the matter rest would not warrant or justify the plaintiff in permitting'the year to go by without bringing his suit if he desired to protect his rights; that the plaintiff might have been justified in waiting a reasonable time after receiving the letter before taking action, but not in waiting the time he did, as the letter held out no hope or promise of an adjustment, but merely asked that an opportunity might be given the company to explain why liability was denied. .
This clause in the policy, however, was one which could be waived by the company. It cannot be construed as a limitation fixed by law. While the plaintiff was not bound to wait before bringing suit, yet it is apparent that he did wait at the request of the company. He testified that the reason he did not begin his action within the 12 months was because of the receipt of the letter of July 2d. Such clauses in policies of insurance, while held valid as contracts, may be waived by the company. The law does not favor clauses of limitation in policies of insurance, and they are strictly construed, and it does not require the positive act of the company inducing postponement; but, where the evidence is conflicting, the question of waiver is one for the jury. We think, however, in this case, that there is no conflict in the evidence, and that the letter was positive in its terms, asking that the matter be allowed to rest until the adjuster of the company could see the plaintiff or his attorneys. As was said in Bonenfant v. Insurance Co., 76 Mich. 657: “Forfeiture is not favored either in law or equity, and a provision for it in a contract will be strictly construed; and courts will find a waiver of it upon slight evidence when the equity of the claim is, under the contract, in favor of the assured.” See, also, Lyon v. Insurance Co., 55 Mich. 146 (54 Am. Rep. 354), and cases there cited; Peoria, etc., Ins. Co. v. Hall, 12 Mich. 202; 2 May, Ins. § 488; German Fire Ins. Co. v. Carrow, 21 Ill. App. 631; Thompson v. Insurance Co., 136 U. S. 287.
It is next contended that the plaintiff’s own evidence .and the evidence of his attending physician do not support the finding that he was totally disabled in the sense intended by the policy, and that the court should so have instructed the jury. The policy provides an indemnity of the sum of $50 per week “against loss of time, not exceeding 26 consecutive weeks, resulting from bodily injuries effected during the term of this insurance through external, violent, and accidental means, which shall, independently of all other causes, immediately and wholly disable and prevent him from prosecuting any and every kind of business pertaining to his occupation above stated.” Upon this point the plaintiff testified substantially that the fall entirely disabled his arm to the shoulder, and that it remained in that condition 10 weeks; that his business consisted generally in personal-security loans, and that during that time he did no business at all; that he could not dress himself without help, and that he had help during the whole time; that he did not do any work or business during that time, but had a man to do it for him; that he went to his office every day for a short time, but was unable to do any kind of work. We find nothing in the record which shows, or tends to show, from the testimony of the plaintiff or his attending physician, that the plaintiff was not totally disabled from attending to and prosecuting any and every kind of business pertaining to his occupation. At least, it was a question for the jury to determine, and the court submitted it in these words:
“I think that a fair interpretation of that clause is, not that he must be so disabled as to prevent him from doing anything pertaining to the business, but that he must be wholly disabled, so as to prevent him from doing any and every kind of business pertaining to his occupation; not that he might do some one thing in regard to it, but that he must be wholly disabled, so as to prevent him from doing any and every kind of business pertaining to that occupation. I submit that to you as a question of fact to find whether he was so disabled, and for what length of time, under this policy.”
In the case of Young v. Insurance Co., 80 Me. 244, a policy in the exact language of this policy was considered. The court used this illustration:
“Suppose a barber, who can use his razor and shears in his right hand only, but can use his left to wipe his customer’s face, comb and dress his hair, and receive pay and make change, by an accident is wholly deprived of the use of his right hand, so that he can neither shave his customer nor cut his hair, can it be said that he is not wholly disabled from the prosecution of his business as a barber ?”
It' was held by that court that there is a difference between being able to perform any part of one’s business and any and every kind of business pertaining to one’s occupation.
If this language in the policy is ambiguous and suceptible of two constructions, then the question must be solved in favor of the insured; for it is well settled in this State that where a stipulation or exception to a policy, emanating from the insurer, is capable of two meanings, the one is to be adopted which is the most favorable to the insured; that it ought to be framed with such deliberate care that no form of expression by which, on the one hand, the party insured can be caught, or by which, on the other, the company can be cheated, should be found on the face of it. Utter v. Insurance Co., 65 Mich. 545 (8 Am. St. Rep. 913); Grand Rapids Electric Light & Power Co. v. Fidelity & Casualty Co., 111 Mich. 148.
It is further contended that the attending physician having testified that, in treating, this dislocation, he discovered that the plaintiff had sustained “an injury at some time to that shoulder, which produced, as he called it, “traumatic rheumatism,” and that a part of the pain was due to that, therefore the company should not be called upon to pay for an injury the inconvenience of which resulted partly and indirectly from disease or bodily infirmity previously existing. We think that question was fully and fairly submitted to the jury, and need not be discussed.
The judgment will be affirmed.
The other Justices concurred. | [
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Long, C. J.
This bill was filed to restrain defendants from assigning a certain judgment, or from enforcing its payment. The cause was in this court on demurrer to the bill at the January term, 1894, the demurrer overruled, the case remanded, and defendants permitted to answer. It is reported in 98 Mich. 517. All the defendants except Ehrmanntraut filed a general and several answer, and the case was brought to hearing upon proofs taken in open court. Upon the hearing the bill was dismissed. The complainants appeal.
It appears in the case that on May 20, 1892, Peter Ehrmanntraut gave defendant Nast two promissory notes to his order, each for the sum of $200, and each bearing the indorsement of the complainants as sureties. These notes were due, respectively, in two and three months from date, and both were indorsed by William Nast also. Suit was brought upon the three months’ note by defendants Neidhold Bros., and, shortly after, suit was brought upon the two months’ note by the same parties. Nast was not made defendant in these suits, by direction of Neidhold Bros. Defendant Miller was the attorney for the plaintiffs in those suits. The suit on the three months’ note was adjourned to October, 1892, and in the meantime Ehrmanntraut paid the two months’ note. Judgment thereafter was taken upon the three months’ note'. It appears also that Ehrmanntraut was indebted to Nast at this time in quite a large amount, which was unsecured. On October 15, 1892, Ehrmanntraut deposited $412 in the First National Bank of Bessemer, out of which he intended to pay the judgment and some other accounts. Immediately after making the deposit, Ehrmanntraut started for Ironwood, to see defendant Miller for the purpose of paying the judgment. Miller calculated the amount due, and received a check for it from Ehrmanntraut upon the bank at Bessemer, and indorsed upon the note the words, “Paid by check. C. E. Miller, Attorney,” and delivered it to Ehrmanntraut. This was on Saturday. Sometime prior to that, Ehrmanntraut had given Nast a check for $200 upon the same bank, which Nast had presented, and payment had been refused. It further appears that Miller was the general attorney for Nast in reference to all his business, and that the Neidhold brothers, in bringing suit upon the notes, consulted Nast as to the attorney they should employ, and were advised to employ Miller. The Neidholds lived at Wake-field, and, under Nast’s directions, put the notes into Miller’s hands, with instructions not to make Nast a party to the suit, though he was one of the indorsers on the notes. Upon the return day of the first suit, Ehrmanntraut and Kallander applied to Miller for an adjournment, and, as they claim, Miller referred them to Nast. This, however, is denied by Miller. The suits were adjourned without consulting with the Neidhold brothers. On the next Monday morning, after Ehrmanntraut gave the $200 check to Miller, Miller and Nast took the train for Bessemer, arriving there about 8:45 in the morning. Prior to their going, Miller had told Nast of the check he had received from Ehrmanntraut; that Ehrmanntraut had exhibited to him his bank book, showing the deposit made in the bank on that day. On arriving at Bessemer, Miller went to the hotel, and waited until about 15 minutes after time for the bank to open,'—which was at 9 o’clock,—and, when he presented the check at the bank, was advised by the bank official that Nast, only a few moments before, had presented his check theretofore dishonored, and the bank had paid it, so that there was no money remaining to pay the Miller check. These facts are not much in dispute. It is admitted by Miller that he told Nast of the deposit of these moneys, and it was also admitted by him that he was, and had been for some time, the general attorney for Nast, and that he had been directed by the Neidhold brothers not to make Nast a party defendant to the suits on the notes. Ehrmanntraut claims that Miller received the check in payment of the judgment, and agreed to discharge the judgment on the day he received it; while Miller contends that he was not to discharge the judgment until the check was paid. ,
The complainants were sureties upon the note, and the claims by their bill are:
1. That the transfer of the note from Nast to Neidhold Bros. was without consideration, and that Nast was the real party in interest in the judgment, and that this fact was within the knowledge of Miller.
2. That Miller accepted the check in satisfaction of the judgment.
3. That Miller advised with Nast to present his (Nast’s) check first, so that he might be paid upon his dishonored check, intending therewith 'to collect the judgment against the complainants, who were sureties upon the note.
4. That the Neidhold brothers, Miller, and Nast conspired and confederated together with the intention of securing to Nast the payment upon his check, while knowing the rights of complainants, and were intending to cheat and defraud them.
5. That Miller and Nast both knew, according to the undisputed evidence, that Ehrmanntraut had deposited the money in the bank for the purpose of paying this judgment, and that Miller had received the check for that purpose.
All the above claims are denied in the answers. None of the defendants were sworn in the case except Nast and Miller, aside from Ehrmanntraut, against whom the bill was taken as confessed, and who was called as a witness by the complainants.
We are satisfied that the court below was in error in dismissing complainants’ bill. It appears to us that the transfer of the note to the Neidhold brothers was for the purpose of bringing suit, though Nast was the real owner, as they took no part whatever in the suits after directing Miller not to make Nast a party; and the facts and circumstances as shown by the record satisfy us that Miller must have known all the facts, and communicated to Nast the deposit of the money in the bank, and given him the opportunity to present his check first, thus leaving no money for the payment of the Miller check. The money was deposited in the bank by Ehrmanntraut to pay this judgment. Nast and Miller both knew it, and the moneys should be thus applied. Any further statement of the case is unnecessary, as from all the surrounding circumstances we think 'the complainants are clearly entitled to be protected.
The decree of the court below will be reversed, and a decree entered in this court in favor of complainants, restraining the collection of the judgment, and also restraining the assignment of it, as prayed in the bill. The complainants will recover their costs of both courts against all the defendants except Peter Ehrmanntraut, who appears to have acted in good faith in attempting to pay the judgment.
The other Justices concurred. | [
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Hooker, J.
The complainant filed a bill to restrain a foreclosure by advertisement on the ground that her signature to the mortgage was obtained by fraud practiced upon her by the mortgagee, his agent, one Russell, and her husband. From a decree in her favor, defendant Case appeals.
The case depends upon what is thought of the testimony. Eliminating the testimony of the husband, which is shown to be unworthy of credit, as he admits concocting the scheme which he says was carried out by himself and the defendant Case, we think the statement of the defendant Case seems more probable than complainant’s testimony, and we are satisfied that the alleged fraud is a fabrication, and that, instead of being the victim of a fraud, she and her husband are attempting to perpetrate a fraud upon the defendant Case.
The decree is reversed, and a decree of foreclosure will be entered here, adjudging the sum of $2,631.40, with interest at 8 per cent, upon $2,593.30, and. at 6 per cent, upon the remainder, from the 17th day of November, 1895, to be due upon said mortgage, and authorizing a sale of said premises upon proper notice, in default of payment of said sum, with interest at 8 per cent, and the costs of both courts, within 30 days after entry of the decree, and that the cause be remanded for further proceedings.
The other Justices concurred. | [
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] |
Long, C. J.
Plaintiff was • a wholesale grocery house in Chicago, and defendant a retail grocer in Grand Rapids. This was an action of trover, brought to recover the value of about $1,200 worth of goods sold by plaintiff to defendant between October 30, 1894, and January 9, 1895. The goods were sold at different times during that period, and on different terms of credit, some of the invoices being on 60 days’ time, and others on 30 days’ time; the amount of the largest sale being $238.70, and the smallest one $4. The plaintiff claimed, and introduced evidence tending to show, that the purchases were fraudulent. In its declaration, the plaintiff set np that, on discovering the fraud, it replevied from the defendant a part of the goods shipped in the last two invoices; that the replevin case was commenced in justice’s court, and appealed to the circuit, and there tried on the merits, and resulted in a judgment in favor of plaintiff for the goods replevied and nominal damages of six cents; that the goods replevied came out of the two invoices of December 28, 1894, for $209.75, and January 9, 1895, for $78.75; that the value of the goods replevied was $81.50; that the defendant, at the time the replevin suit was instituted, was not in possession of the other goods included in said two invoices, he having sold or otherwise disposed of the same. And plaintiff averred that this judgment in such replevin suit constituted a binding prior adjudication between plaintiff and defendant that said two purchases were fraudulent. The defendant, in his amended plea, also set up the bringing of said suit of replevin, and the recovery therein of a part of the goods contained in said two sales, one of December 28, 1894, and the other of January 9, 1895, and averred that, because of the recovering of said judgment in replevin, the plaintiff was not entitled to maintain this action of trover. On the trial of this cause, the plaintiff showed the proceedings in said replevin suit, and gave evidence tending to show that the goods replevied were all the goods that then remained in the possession of defendant at the time the replevin suit was instituted. At the conclusion of plaintiff’s evidence, defendant’s counsel moved the court to instruct the jury to render a verdict in favor of defendant, for the reason that the plaintiff could not split its cause of action, and that the judgment in replevin was a bar to the present action, which motion was granted by the court. To this ruling the plaintiff excepted, and the question thereby raised is the sole and only question involved on this record.
The court below was in error. As well stated by counsel for plaintiff: “The effect of defendant’s .position here is, not that a single cause of action cannot be split up, but that separate causes of action in tort must be combined.” The sales were separate and distinct, and on different terms of credit. Plaintiff could have elected to rescind some of them, or treat them as void, and ratify others, and sue in tort for some, and in contract for the others. Lee v. Burnham, 82 Wis. 209; Stickel v. Steel, 41 Mich. 350. In the latter case it appeared that S. bought a bill of goods in August, with credit for four months from September 15th following, and on the same day, from the same person, another bill of goods, at a credit of four months from October 1st following. It was held that the two bills of goods did not constitute one demand when one became the subject of suit before the other became due, or when the remedy for one was barred before the time expired for the other. In' the present case the torts consisted of the fraudulent purchases, and were committed when the purchases were made and the goods obtained, and not when their fraudulent character was discovered. Each purchase was a distinct and several act of fraud, for which the plaintiff was entitled to maintain a separate action. This doctrine is fully enunciated in Lee v. Kendall, 56 Hun, 610, and Shook v. Lyon, (Com. Pl.) 11 N. Y. Supp. 720.
It appears, however, that the plaintiff replevied a part of the goods shipped in the last two invoices. It is therefore contended by defendant that, that suit having gone to trial on the merits, the plaintiff could not maintain trover for the balance of those particular invoices. But it appears that the goods for which trover was brought were not in the possession of the defendant at the time the writ .of replevin was issued and served, he having sold or disposed of them. The rule is well settled that in replevin no recovery can be had for goods not in possession of the defendant at the time the writ issues, except where the goods have been fraudulently disposed of or concealed to avoid the writ. In Sexton v. McDowd, 38 Mich. 152, the court, speaking of the nature and office of the writ of replevin, said:
“The form and nature of the remedy suppose a case where the defendant unlawfully detains the property from the plaintiff, and not a case where the defendant cannot surrender, nor the plaintiff accept, possession; and it requires that, before the writ shall be executed, an affidavit shall be attached, showing, among other things, that the plaintiff is entitled to the possession of the property, and that the defendant, not a stranger, unlawfully detains it.”
In Hinchman v. Doak, 48 Mich. 168, the court said:
“When the defendant established the fact that he was not in possession when suit was instituted, he showed that he was entitled to have the case dismissed out of court, and to recover his costs.”
The following cases are in line with this proposition: Aber v. Bratton, 60 Mich. 357; Burt v. Burt, 41 Mich. 82; Morrison v. Lumbard, 48 Mich. 548; Bacon v. Davis, 30 Mich. 157; Gildas v. Crosby, 61 Mich. 413. The same rule is stated in other States. Williams v. Morgan, 50 Wis. 548; Coffin v. Gephart, 18 Iowa, 256.
It must follow that, under the circumstances of this case, the plaintiff is not estopped from bringing suit in trover for such property as was not taken under the writ of replevin. In Farwell v. Myers, 59 Mich. 183, Mr. Justice Morse recognized that very doctrine, though holding that assumpsit would not lie for the balance of the goods not taken under the writ. In Farwell v. Myers, 64 Mich. 234, the same case was in this court, only in different form. In the second case, 'claim was based upon the conversion of the property, and it was held that the action would lie. We do not understand that the court intended to hold in McBrian v. Morrison, 55 Mich. 351, that a recovery could be had in replevin for property known by plaintiff to be out of defendant’s possession, or out of existence, when the writ was sued out. The opinion was by Mr. Justice Campbell, who also wrote the last case of Farwell v. Myers, 64 Mich. 234, where the action of trover was permitted to be maintained for the balance of the property not taken under the writ.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
One Michael Hill had been for many years engaged in the business of buying and selling lumber at Port Huron. He had during this time purchased the most of his lumber from George N. Fletcher & Sons, of Alpena, usually upon credit, giving his notes, which were at times extended. His three sons, the plaintiffs in this case, were in his employ. March 12, 1895, Mr. Hill made a bill of sale to his sons of all his lumber, personal property, and accounts, and also assigned to them the contract for the land on which his lumber yard was situated. They executed articles of copartnership, took possession of the property, and entered into the same business as that carried on by their father. At the same time he conveyed to his daughters a house and lot worth $1,000. His daughters were unmarried, and lived at home as members of his family. For this conveyance there was no legal consideration as against creditors, for he owed them nothing. He thus transferred all his property except his homestead, of the value of which there is no evidence. Fletcher & Sons, upon being informed of these conveyances, commenced a suit in attachment, and levied upon the lumber and other property used in the business. Plaintiffs immediately brought this action of replevin against the defendant, the sheriff, claiming title by virtue of the sale to them. They recovered verdict and judgment.' The further statement of facts will be made in connection with the points raised.
The contentions of the defendant are as follows:
‘ (1) The transfer to plaintiffs was, in effect, a common-law assignment of all Hill’s property, coupled with a trust and a preference, and therefore void.
“ (2) Mr. Hill could not make an agreement with his minor sons to pay them for services rendered during minority, which would be valid as against a creditor without notice.
“(3) The plaintiffs, knowing that the father was insolvent, and would be unable to pay his debts, at the time the indebtedness to Fletcher & Sons was created, they having been parties to the purchases, could not become bona fide holders of the stock so purchased from the Fletchers.
“(4) The boys, having put a certain amount of their wages into the business each week, having equal management and control with the father, expecting to make it their life business, made such a state of facts as constituted in law a partnership, notwithstanding the business was conducted in the name of Michael Hill. This being true, the sale from father to sons was void.
“(5) The October and November sales were made by Fletcher & Sons to Michael Hill, after representations as to his indebtedness and the condition of his business, which representations were false, and known to be by the plaintiffs. This being true, the sale by the father to the plaintiffs of the stock purchased of Fletcher & Sons was void and fraudulent.
“(6) If this sale was made with the intention or motive of defeating Fletcher & Sons, these plaintiffs could not become bona fide purchasers, and in this case it would be a fraud upon Fletcher & Sons even if made to pay a bona fide indebtedness.”
1. Plaintiffs’ testimony tended to show that they were employed by their father at a given price per day, that they were to pay a given price per week for their board, that they were given a certain amount per week for spending money, that they had lent their father certain amounts of money, and that he owed them about $5,000. They claim that in payment of this indebtedness the sale was made to them, and that at the same time they agreed to pay five other creditors, whose aggregate indebtedness was about $1,300. The claim of Fletcher & Sons was about $3,000. The father testified that the conveyance was made on condition- that the boys would pay these debts. His testimony on this point is as follows:
“ Q. You conveyed to the boys on condition that they would pay them ?
“A. Yes, sir.
‘ ‘ Q. That was the condition of your conveyance ?
“A. Yes, sir.
“ Q. And you intended this transfer to them to be for their benefit and those other creditors that you named ?
“A. Yes, sir.
“ Q. That was the purpose of the transfer?
“A. Yes,'sir.
“ Q. Was to take care of the boys’ indebtedness and the indebtedness to Lassen, Lanth, Bernatz, and the two small notes John and Michael Hill were on ?
“A. Yes, sir.
‘ ‘ Q. And that was its real purpose, was it not ?
“A. Yes, sir.”
The effect of this transaction was, of course, to prefer certain creditors, and was so intended by all the parties to it. A debtor may prefer a creditor by a mortgage on all his property, or by a transfer of all his property in payment, when the value of the property is not so in excess of the debt as to raise a presumption of fraud. This has been so often held that it is unnecessary to cite authorities. But that is not this case. The creditors whose claims plaintiffs agreed to pay were not parties to the transaction. It was not binding upon them. There was no novation. They could not sue the plaintiffs. If they should not see fit to substitute plaintiffs as their creditors for Mr. Hill, their only remedy would be by suit at law against him, or by bill in equity to enforce the trust. The transfer was not for the sole purpose of paying the plaintiffs’ claim, but also to secure the payment of five other creditors. Plaintiffs took the property burdened with these obligations. If this is not a transfer for the benefit of creditors, for what is it ? It did not operate as a payment to five creditors, because they did not agree to it. If this conveyance had been made to a stranger, and it covered all the property of the debtor, in consideration that the vendee should pay certain creditors to the exclusion of others, it would amount to an assignment for the benefit of creditors, and be void under the statute. The effect of such a transaction cannot be avoided by saying that it was not intended as a common-law assignment. Courts will look to the substance of the transaction, and not to the name which the parties see fit to give it. Is the character of the transaction changed by conveying to a creditor, who acknowledges satisfaction of his own debt, and agrees to pay certain others ? Suppose plaintiffs had agreed to pay all their father’s debts, and the transfer had embraced all his property, can there be any doubt that the transaction would have been an assignment for the benefit of creditors ? The character of the assignment is not changed by leaving out one creditor, as in this case, and securing others. One creditor has a right to secure payment of his own debt by a transfer of the property of his debtor; but when he takes it all, and agrees to pay certain creditors to the exclusion of others, he takes it burdened with a trust, and becomes an assignee for the benefit of creditors. We are not, of course, holding that these six creditors of Mr. Hill might not, by agreement, have taken from him all his property in payment of their debts. Were that the situation, there would probably be no difficulty in upholding the transaction. But five of these made no such agreement, and, if they have any claim against the plaintiffs, it is against them as trustees, and not as debtors, and because the property was transferred to them for the benefit of themselves and certain other creditors. We think this transaction is clearly within the principle established in the following cases: Kendall v. Bishop, 76 Mich. 634; Burnham v. Haskins, 79 Mich. 35; Pettibone v. Byrne, 97 Mich. 85.
The difficulty with the case is that the record fails to show that the transfer included all of Michael Hill’s property. The homestead may have been worth $5,000 or $10,000, and, if so, there would be no occasion for Fletcher & Sons to attack the conveyance as fraudulent. We express our views upon the point because it will probably arise on a new trial.
2. We think there was not sufficient evidence to justify a finding that the transaction was void because one of the plaintiffs was a minor at the time his contract for employment was made, or that the father and sons were in fact partners. They did not hold themselves out as partners, and the facts that the sons might have contemplated that they would eventually succeed to the business, that they used the words “we” and “our ” in connection with it, and that to all appearance the business was conducted in the same way after the transfer as before, are not sufficient to establish a partnership.
3. The evidence for defendant tended to show that plaintiffs knew all about the representations made by their father to Fletcher & Sons as to his financial condition ; that one of the plaintiffs wrote the letters; that the father’s books of account showed no indebtedness to any of his sons; that there was no writing showing any indebtedness; that the bills of October and November were purchased of Fletcher & Sons in contemplation of the transfer to the sons, and with their knowledge; that the transfer was in fact made for the purpose of preventing Fletcher & Sons from getting their pay; and that plaintiffs and their father had been talking the matter over for nearly a year. In view of this evidence, it was error to leave the subject to the jury under the following instruction:
“ If it is in payment of an honest debt, it will be sustained by the law, even though the effect of it may defeat all other creditors in the collection of their claims, and I may say to you that it would be good in law even if that was the intention of the transfer, so long as the indebtedness that it was turned over to satisfy was an honest, bona fide, and legal indebtedness. It would follow from this rule that if the indebtedness from Michael Hill to his sons was an honest, bona fide, and legal indebtedness, in such an amount as would be fair, just, and reasonable compensation for the amount of property that he turned over to them, the transfer would be valid in law, even though it defeated Fletcher & Sons, and even though it was intended to do so.”
They should have been instructed that, if these purchases were made with full knowledge by the plaintiffs, and with their assent, that their father had made false statements in regard to, or had purposely concealed, his financial condition in order to obtain the credit, or if the purchases were made for the purpose of obtaining the goods to secure plaintiffs their debts and to prevent Fletcher & Sons from securing theirs, and this was known to plaintiffs, then the sale was fraudulent. There may be cases to which the instruction of the learned circuit judge would apply. Usually the intent of the purchaser is an important element of fraud, and, though his debt may be an honest one, its honesty is not conclusive of the honesty of the subsequent transfer or sale. Be this as it may,- the instruction did not cover the case made by the defendant. See Gumberg v. Treusch, 103 Mich. 543.
For this reason the judgment must be reversed, and a new trial ordered.
Long, C. J., Montgomery and Moore, JJ., concurred with Grant, J. Hooker, J., concurred in the result. | [
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Long, C. J.
On October 13, 1893, the plaintiff sold to the defendant a portable sawmill, or at least entered into a contract by the terms of which defendant was to have the mill for $400 worth of beech lumber. The plaintiff took back from the defendant the following agreement, the performance of which was understood to be full payment for the mill:
“ I, D. A. Goodenberger, hereby agree to furnish Jacob L. Crowl $400 worth of beech lumber, at $12 per thousand, delivered; said lumber to be cut from merchantable logs; said lumber to be delivered within six months; lumber to be log run, one-third two-inch and two-thirds one-inch.”
Pursuant to this agreement, defendant, during the years of 1893 and 1894, and previous to April 13, 1894, delivered to the plaintiff, at his mill yard, 19,500 feet of lumber, which was piled in plaintiff’s yard as directed by him. A part of the lumber delivered was two-inch, and the balance one-inch. This lumber was retained by the plaintiff up to the time of commencement of suit, and not until some 11 months after did plaintiff notify defendant to remove it. It seems that no measurement was ever made of the lumber, and the defendant claims he did not deliver the balance for the reason that the plaintiff did not measure that already delivered, nor signify his acceptance of it. This action was brought to recover the price of the mill, and, on the trial, plaintiff had judgment for the full value of the mill, the lumber delivered not being accepted. The case was tried before the court without a jury. The court found that defendant delivered to the plaintiff 19,500 feet, and no more, but that the lumber so delivered was not in the proportion, as to thickness, that the contract called for, as nearly all of it was two-inch, and only a small part one-inch. The court further found that no application was ever made to the plaintiff by the defendant for the measurement of the lumber, and that the plaintiff did nothing indicating an acceptance of the same, unless his failure to notify defendant that he would not ac cept the same, before bringing suit, could be so construed; that, as matter of fact, the lumber could not be used to the best advantage by the plaintiff unless it were furnished in the proportion contracted for, as plaintiff was engaged in house furnishings, cabinet, and other kinds of work; that the suit was commenced for the purchase price of the mill about a month after the time within which the lumber should have been delivered; that the suit was brought May 15, 1894, and in May, 1895, plaintiff gave notice to the defendant to remove the lumber from his premises; that during that time nothing was said between the parties, regarding the lumber delivered, until the time this notice was given. The court found, as matter of law, that the contract for the furnishing of this lumber was not an apportionable one, and that the plaintiff was not obliged to accept the lumber delivered, and did not, as matter of law, accept it; that he could not, after the expiration of the terms of the contract, be required to accept the lumber, and was therefore justified in bringing the action for the purchase price of the mill.
1. It is contended on the part of the defendant that it was the duty of the plaintiff to measure the lumber, load by load, when delivered, and that his failure to do so relieved the defendant from performing on his part until the plaintiff had performed his part of the agreement as a condition precedent. There is nothing in the contract which provides for any measurement on the part of the plaintiff. He was to have $400 worth of lumber at $lá per 1,000, delivered; the whole amount of the delivery to be made within six months, and to be cut from merchantable logs, one-third two-inch and two-thirds one-inch. The failure to measure the lumber was no excuse for the failure of defendant to furnish the balance of the lumber.
3. It is further contended that the 19,500 feet of lumber was received by the plaintiff under the contract, and has since been retained by him, and therefore the plaintiff cannot maintain an action for the value of the lumber, or for the price paid therefor, until he has returned the lumber delivered, or notified the defendant to remove it; that the contract is apportionable, and at least the value of the lumber delivered should be set off against the plaintiff’s demand. The court, however, specifically found as a fact that the lumber put upon the plaintiff’s premises by the defendant could not be used by the plaintiff to the best advantage, and that he never accepted it.
There was no error in holding that the plaintiff was entitled to recover the purchase price of the mill, as we are of the opinion that the evidence sustained the finding of fact. We think the rule is settled that, where the debtor has the election to pay either in money or property, if he fails to make tender on the day fixed for payment he thereby loses his election, and the obligee has the right to demand money. 25 Am. & Eng. Enc. Law, 909, and note; Wyman v. Winslow, 11 Me. 398 (26 Am. Dec. 542); Robbins v. Luce, 4 Mass. 474. We are also satisfied that the defendant was bound to tender the whole amount of the lumber, as plaintiff was not bound to accept a part only. Vance v. Bloomer, 20 Wend. 196; Roberts v. Beatty, 2 Pen. & W. 69 (21 Am. Dec. 418).
Some other questions are raised which we do not deem important to discuss, as we think the court reached the right conclusion.
The judgment must be affirmed.
The other Justices concurred. | [
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Hooker, J.
The probate court for the county of Wayne made an order, upon application of the sole devisee under the will of Francis Lambie, deceased, requiring the appellants to file their final account in said court within five days after being served with notice. This they refused tb do, and, after hearing counsel for the appellants in opposition, an order was made by said court that the residue of the estate be assigned to James Lambie, the petitioner, and that Orla B. Taylor, special administrator, and John H. Thomas and Charles Cameron (the appellants), be discharged from all further liability as such, and that the estate be closed. An appeal was taken by these appellants to the circuit court, where the order was affirmed.
The decision of the court seems to proceed upon the theory that the estate is settled, except the claim of the appellants, which it was their duty to present and have passed upon by the probate court; that, while there was a just claim, it was impossible for the court to determine the amount except by an adjustment of their accounts; that, up to the date of the trial at circuit, they had filed no account, nor had they made any excuse for their failure to do so, except that the estate was not in readiness to settle, and that they had" a right to proceed with the settlement. The parties in interest appear to have adjusted the affairs of the estate to their satisfaction, and were entitled to know the amount due to the executors, and have' it paid, so that the estate could be distributed. The executors have no interest in an estate after the debts are paid, and those entitled to the property have adjusted the matter between themselves, further than to receive their compensation and be discharged. The executors have refused to file their account in obedience to the order of the court, and we think that it was proper to refuse to keep the estate open longer for their accommodation.
The orders of the circuit and probate courts are affirmed, with costs, and it will be certified accordingly.
The other Justices concurred. | [
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] |
Long, C. J.
The plaintiff was the owner of two lots and a house on Butterworth avenue, and three vacant lots on Gunnison street, in Grand Rapids. Upon, these lots was a quantity of valuable gravel, which the defend ants desired to purchase. On October 28, 1893, they entered into a written contract with plaintiff for the gravel on the lots on Butterworth avenue, for which she was to receive $300, of which James Grady was to be paid $100, and the balance to be paid her in installments as defendants received their pay from the city for grading West Wealthy avenue, and the balance when the grading was done; and, in addition to these payments, defendants were to move the building owned by James Grady about 20 feet, and rebuild the stone wall the same size and dimensions. They were also to lower two dwelling houses, to establish a grade as given by Mrs. Grady, and to furnish 50 loads of top earth to cover the lots; all work to be done in a good and workmanlike manner. About the same date the parties entered into an oral contract by which the defendants purchased from the plaintiff the gravel on the Gunnison-street lots at eight cents a load; they to take the lots down to a grade even with the alley in the rear, and to stop taking gravel therefrom when directed by the plaintiff. This suit is brought to recover the price of the gravel, and for the failure of defendants to fulfill the terms of the contract, and for damages to one of the dwelling houses and the lots mentioned. The bill of particulars filed is as follows:
Balance due for gravel sold defendants............. $74 00
Damage done to dwelling house by defendants in moving and lowering same...................... 45 00
Damage done to lots by defendants in lowering same below the street and alley grade, and in leaving the surface of same irregular and uneven________ 40 00
For sidewalk-------------------------------....... 15 00
$174 00
Defendants pleaded the general issue, and gave notice of set-off, filing a bill of particulars of the same.
The claim of the plaintiff on the trial was that defendants, where they found a vein or layer of gravel, would excavate to great depth, and, where no gravel was found, would not work it, so that it left the lot uneven and hilly; that, in moving and resetting the house, the work was carelessly and hurriedly done; that a large piazza, which had been separated from the house before moving, had been moved back against the house, leaving it loose and not level, and carelessly propped up with temporary supports; that the house was improperly supported 'with walls and underpinning, letting the floors sag and remain loose; that the fences, sidewalks, and cellar' stairs were destroyed, the rear piazza or platform left hanging without supports, and other defects of like character; that, while matters were in this condition, defendants informed the plaintiff that the contract was completed, and presented her with a statement which brought her in debt to them in the sum of $11.24. As to the Gunnison-street lots, plaintiff claims that the work had not been fully completed, in that many places had been excavated much deeper than should have been, and that defendants had neglected to refill properly with earth.
The suit was commenced in justice’s court, and there tried, and on appeal to the circuit, before a jury, a verdict was rendered in favor of the plaintiff for the sum of $128.
1. Defendants contend that no evidence was admissible as to the damages to the Gunnison-street lots, as they are not mentioned in the, declaration and bill of particulars. The declaration in justice’s court was oral, and is not to be very strictly construed; but, whatever defects there may have been in that regard, we think the bill of particulars sufficiently specific to enable the plaintiff to recover on the Gunnison-street lots.
2. It is contended that no evidence was produced by the plaintiff in support of the item in her bill of particulars as “balance due for gravel sold defendants.” We think there was some evidence to go to the jury on that question.
3. It is contended that, in regard to the filling of the lots, the measure of damages is not the value of the material it would take to fill them up even with the alley, as graded, but the depreciated value of the property, if any. This contention cannot be sustained. Defendants had agreed by their contract to refill these lots, or, rather, to grade them down to the alley grade, and to do it in a good and workmanlike manner. This, the plaintiff contends, they failed to do. They did not restore the lots to a level, as was their duty under the contract, and the plaintiff’s damages would be what it would cost to put the lots in the,condition in which the defendants agreed to leave them. This was the measure applied, and, we think, properly.
4. But defendants contend that there is no item in the bill of particulars setting, forth anything but damage to the lots by reason of lowering them below the alley and street level. We think the pleadings were specific enough to allow a recovery for the cost of leveling the lots.
5. It is contended further that the plaintiff received payment in full for all gravel taken from these lots, and now claims damages for taking it below a certain grade; that she cannot accept payment in full for gravel taken below grade, and also claim damages for not refilling, unless she relies on the contract to refill, and that, if she does so rely, she fails, because she has neither declared on that latter contract, nor included a claim therefor in her bill of particulars. We think this claim is covered by the third item of the bill of particulars, and that defendants cannot have been taken by surprise upon the trial by the demand made.
6. It is contended that the declaration and bill of particulars do not cover the Gunnison-street lots at- all, as no allegation of said oral contract, or any breach thereof, is made. As we have said upon the other claim, the third item of plaintiff’s bill of particulars must have referred to the Gunnison-street lots as well as to the others. It is general in its items, and charges damages for lowering the lots below the street and alley, and leaving the surface irregular and uneven. There was evidence given by the plaintiff which tended to support plaintiff’s several claims, and we think the court properly submitted them for the consideration of the jury.
7. One further claim is made. It appears that one Charles A. Watt assisted counsel for the plaintiff in the trial of the case. At the commencement of the trial, counsel for defendants objected to Mr. Watt’s appearing in the case, as he was one of the justices of the police court and justices’ court of the city of Grand Rapids. The specific objection made was that the justices’ court is a combined court of two justices, and that this cause had been tried before the other justice. This objection was overruled, and upon that ruling defendants assign error. It does not appear that there is any provision of the statute prohibiting justices of the peace from engaging in the trial of causes. It did appear that the two justices held separate courts and had separate records, and it was not claimed that Mr. Watt had anything whatever to do with the trial of this case in justice’s court. The court very properly overruled this objection.
From a full examination of the record, we are satisfied that the case was fairly tried and submitted, and the judgment must be affirmed.
The other Justices concurred. | [
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Hooker, J.
The respondent was convicted of the offense of maliciously threatening to accuse another of crime, with intent to extort money.
It is first urged by counsel for the appellant that the information and the proof “fell short of charging or proving a threat to prefer charges in some court, or set in motion the criminal machinery of the State.” The language used in the information was, “did verbally, unlawfully, and maliciously threaten to accuse,” etc., “of a crime, to wit, the crime of sodomy and bestiality,” etc. This follows the language of the statute, and, under many decisions, that is all that was necessary. There-are many authorities that hold that the term “accuse” means, in the law, “to charge with an offense judicially, or by a public process.” This is Webster’s definition, and that given in the text of the American & English Encyclopedia of Law (2d Ed., Vol. 1, p. 481). If Ibis is the correct legal definition of the term, it must be given that meaning in the statute. See 1 How. Stat. § 2. Indeed, counsel for the defendant must so contend in order to sustain their point “that proof of a threat to accuse judicially is necessary to establish the offense.” If they are correct in this, it must be for the reason that the word has this legal meaning, and it would seem to us that the word might be given the same meaning in the information as in the statute. So, although defendant’s counsel may be right about this, the judge was justified in allowing the case to go to the jury, as there was testimony tending to show a threat to prosecute the complainant for the crime.
Complaint is made that the court permitted the jury to find a verdict upon a mere threat to accuse publicly, but we think not. That does not appear to have been a mooted question. There are no requests to charge shown upon the subject, and, in fact, the court told the jury that it was for them “to say whether he was threatened with the criminal action, or not, of sodomy or bestiality.” The court’s attention was not called to any omission by an exception.
We think the instructions upon the doctrine of “reasonable doubt” sufficiently plain, and the definition of the threatened crime sufficiently accurate for the purposes of' the case, and we are not disposed to interfere with the reasonable exercise of judicial discretion in discussing the duties and dangers of the jury room. We must take the charge as certified to be accurate, and we are not disposed to extend the effect of good character, as a defense, by denying to the prosecution a liberal cross-examination. What effect, upon jurors’ opinion of character, evidence that the person whose character was under consideration had attempted suicide, would have, would doubtless depend upon circumstances; but we think it was proper to show upon cross-examination that the witnesses had heard it, as bearing upon the value of their testimony.
A new trial was asked upon several grounds, the same being set up as allegations of error in the motion. This was denied, when specific exceptions and assignments of error upon the various grounds were taken to the denial of a new trial. Strictly speaking, these raise no questions upon the proceedings at/the trial, except by indirection. A large discretion is confided to the circuit judge in motions for new trial, and the extent to which assignments of this character are available to test questions raised at the trial may be a matter of doubt. But, as these assignments have been treated as sufficient, we are not disposed to question them, further than to call attention to a doubtful practice.
We are of the opinion that the trial was free from error, and the conviction is therefore affirmed.
The other Justices concurred. | [
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Moore, J.
Complainant filed her bill of complaint, alleging, in substance, that she is now 36 years old; that she is a daughter of David Low, who was killed at the battle of the Wilderness; that her mother died when she was about sis weeks old; and that when about four months old she was adopted by William M. Richardson and wife, and lived with them about two years, and then was taken by Edward Thombrey and wife, with whom she resided in Clinton county, Mich., until about eight years of age, when she was taken by her foster parents to Lambton county, Ont., where she still resides. The bill alleges that Richard Low, who is now deceased, was appointed her guardian, and received, as guardian, a large amount of money from the "United States government as a pension, which she was entitled to by reason of her being one of the children of David Low, who was a volunteer in the United States army. It further alleges that said guardian made an application for said pension, and it was paid to him for her use and benefit; that said pension amounts to at least the sum of $707.09; that he also received some bounty money and back pay, in which she has an interest; that said guardian never filed any account in the probate court as such guardian, or in any other way accounted to complainant, nor to any public officer, for said funds, and that he has never given her any knowledge or information whatever concerning the matter, nor ever stated to her or brought to her knowledge any facts concerning it that would put her upon inquiry concerning her interests therein; that she never had any knowledge of the facts until November, 1895, which would put her on inquiry as to her rights in the premises; and that he has fraudulently suppressed the facts from her concerning it. The bill alleges that Richard Low died in 1883, testate; that his will has been probated in Montcalm county; that among the provisions in said will the heirs of David Low are given the sum of $150, to be divided equally among them; that she has never had her share of said legacy; and that she is one of David Low’s heirs. She further alleges that her said guardian intended to defraud her out of said pension money.
The bill alleges that commissioners were appointed to hear and allow claims against the estate of Richard Low, deceased, on or about November 26, 1883. It also alleges that subsequent proceedings in relation to such commission have been irregular, and not in compliance with law, and therefore void, and that they in no way operate as a bar to the prosecution of further claims against said estate; that all subsequent purchasers or incumbrancers of any of said estate take their title subject to any claims against said Richard. Low, deceased, and are not good-faith purchasers or incumbrancers thereof as against complainant’s claim; that Jonah Low was one of the heirs and legatees of said Richard Low, deceased, and that he is now in possession of a valuable piece of real estate belonging to said estate, worth more than enough to pay all complainant claims, after all the other debts are paid; that there is no personal estate out of which to satisfy such a decree; that he had full knowledge of the fact that an accounting in her behalf had been suppressed by said .guardian, and that he is in possession of said premises with full knowledge of all her rights; and that Peter Van Vleck is a subsequent purchaser or incumbrancer of said premises, with full knowledge of all her rights. Said bill of complaint also alleges that no facts have come to complainant’s knowledge which would set the statute of limitations in motion; that she has been entirely ignorant of all her rights in the premises until November, 1895; that, -from the fraudulent conduct of her guardian, she is entitled to come into a court of chancery, and have an accounting, and a lien declared on the land left by her guardian, and an order of sale made; that she is entitled to a lien by virtue of her claim herein stated, prior to any rights therein of either said Jonah Low or Peter Van Vleck to said lands. The bill prays for an accounting by the executors of her deceased guar dian, and that the amount which shall be found due to her from her said guardian, as well as her share of said legacy given her by the will, shall be decreed as a prior lien, upon the lands described in the bill of complaint, to any interest claimed therein by Jonah Low and Peter Van Vleck, and that the land may be sold by an order of the court to satisfy such lien. She does not claim any preference as a creditor over other creditors of said estate. Jonah Low and Peter Van Vleck filed a demurrer to the bill of complaint, alleging (1) a general want of equity, (2) a misjoinder of parties, (3) a statement in the nature of a disclaimer by them of any interest in the subject-matter in litigation. The demurrer was overruled, and Low and Van Vleck appeal.
It is claimed that sections 5892-5894, 2 How. Stat., determine the time in which claims against estates can be presented; that so much time has elapsed that the probate court could not allow this claim, nor could it make any order for a sale of the real estate to pay it; and that, as complainant has no case against the property in question, the defendants Low and Van Vleck should not be required to answer,—citing Brown v. Forsche, 43 Mich. 492; Winegar v. Newland, 44 Mich. 367; Pratt v. Houghtaling, 45 Mich. 457; Willard v. Van Leeuwen, 56 Mich. 15. We do not think any of these cases meet the case stated in the bill. Suppose it is true that so much time has now elapsed since the death of Richard Low that complainant could get no relief in probate court; does it follow that equity cannot aid her ? The bill alleges that Richard Low obtained large sums of money, as guardian, belonging to complainant, for which he never accounted, but fraudulently appropriated them to his own use, and prays for an accounting. Unless the statute of limitations has cut off her remedy, she has stated a case entitling her to the aid of a court of equity. Crain v. Barnes, 1 Md. Ch. 151; Tompkins v. Hollister, 60 Mich. 470; Perrin v. Pepper, 72 Mich. 454; Dodson v. McKelvey, 93 Mich. 263. 2 How. Stat. § 8724, reads that ‘£ if any person who is liable [in per sonal actions] shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such cause of action.” Tompkins v. Hollister, 60 Mich. 470. In equity the rule is stated to be:
“ Courts of equity not only act in obedience and in analogy to the statutes of limitations in proper cases, but they also interfere, in many cases, to prevent the bar of the statutes where it would be inequitable or unjust. Thus, for example, if a party has perpetrated a fraud which has not been discovered until the statutable bar may apply to it at law, courts of equity will interpose, and remove the bar out of the way of the other injured party. A fortiori they will not allow such a bar to prevail, by mere analogy, to suits in equity, where it would be in furtherance of a manifest injustice.” 2 Story, Eq. Jur. § 1521: 13 Am. & Eng. Enc. Law, 680.
If the allegations of the bill are proven, we think a bill in equity will lie to reach the property still in the hands of the heirs, devisees, or legatees of Richard Low, deceased. 2 How. Stat. § 5940; Chewett v. Moran, 17 Fed. 820.
We are asked to decide in advance some features of this case which may or may not arise, depending upon what the proof discloses. This we decline to do.
The decree is affirmed, with costs, and the case is remanded to the circuit court in chancery. Defendants are allowed 20 days from the date of notice of this decree in which to answer.
Long, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit. | [
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Hooker, J.
(after stating the facts). Upon the facts above stated, the order of the learned circuit judge was warranted. While there is not absolute harmony upon the subject, the weight of authority accords with his view of the case. The subject will be found discussed in Edwards v. U. S., 103 U. S. 471; Throop, Pub. Off. § 408 et seg.; 19 Am. & Eng. Enc. Law, 562r. The case of Edwards v. U. S., supra, arose over a Michigan office, and much that is there said is applicable here.
The order of the circuit court is affirmed.
The other Justices concurred. | [
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Hooker, J.
This action was brought upon an insurance or guaranty policy, which provided that—
“In consideration of the sum of $72, hereby insures S. A. Sloman & Co., of Detroit, in the State of Michigan, to an amount not exceeding $2,000; against loss sustained by reason of the insolvency of debtors owing the insured for merchandise usually dealt in, sold and delivered in the regular course of business between the 1st day of April, 1893, and the 31st day of March, 1894, both inclusive, in excess of f per cent, on the total gross sales and deliveries made during said period, subject to the terms and conditions printed below or attached hereto. This policy shall expire on the 31st day of March, 1894.”
The insured sent 9 notices of loss to the insurer before March 31, 1894, and 22 after that date, but within 90 days after such date. Those last mentioned were admitted in evidence, subject to an objection “that these losses were not covered by the policy, and were not sent in during the life of the policy.”
Under a request to charge, it is claimed that the court should have excluded from consideration by the jury all claims of loss not shown to have accrued before April 1, 1894. The question discussed is whether the policy covers losses where the insolvency or act of the debtor which makes the debt a loss, within the meaning of-the policy, occurred after March 31, 1894, that being the date of the expiration of the policy; and counsel for the plaintiffs argue that it cannot be reasonably said that the parties'intended that the sales on the last day, viz., March 3.1st, should not be protected by the policy, as would be practically the case if the defendant’s claim is the correct one, They (the plaintiffs) urge that the loss may occur afterwards, and that if the insured serves his notice within 10 days after learning of the loss, and makes his final proofs of loss within 90 days after the date upon which the policy expires, he may recover for a loss that occurs after such expiration. From that portion of the policy quoted, it is said that the losses to be covered are those that arise upon sales made between the first day of April, 1893, and March 31, 1894. There seems to be no dispute about this. In addition.to that portion hereinbefore quoted, the policy provides that' “the insured shall notify this company by registered mail * * * of the insolvency of any debtor, within 10 days after he receives information of the same;” also, ‘‘final, verified proof of loss * * * must be presented * * * within 90 days after the expiration of the policy;” and, again, “no loss shall be payable unless included in said proof of loss submitted within said stated period. Should, however, this company renew the policy, or issue a new one, on or before the expiration hereof, a loss occurring after such expiration, on a sale and delivery of merchandise made during the existence of this policy, shall be provable in the same manner as if it occurred under the renewal or new policy.”
It is obvious that this policy contemplates a credit business, for there would be nothing to insure if it does not. The time and terms of credit are not fixed, nor can we indulge in any assumptions upon the subject beyond the inference that the usages of trade in this respect were expected to be followed. Of necessity, there would be sales made during a time immediately preceding March 31, 1894, upon which the plaintiffs would receive no indemnity under this policy if defendant’s .construction is to be adopted, unless insolvency should immediately follow the purchase. The sales made during the period are clearly covered by the policy, and it is improbable that it was intended that the insured should be deprived of indemnity upon such sales; and, unless the policy clearly indicates such intent, the writing should not be so construed. The clauses which are said to give the policy such effect are the statement that “this policy shall expire on the 31st day of March, 1894,” and the clause relating to renewals, already quoted. Under the several provisions quoted, the right to recover a loss depends upon the presentation of final, verified proof of loss within 90 days after the expiration of the policy. To this there is an exception, viz., in case a new policy or renewal is issued on or before the expiration of the old policy, in which case the intent is plain that the insured should be permitted to recover for a loss occurring after the expiration of the original policy, at any time when losses occurring under the renewal might be recovered. This appears from the last clause mentioned, and is dependent upon it; and it is not necessary to infer from that provision that losses occurring after the 31st of March are not recoverable at all unless by reason of the renewal. It is just as consistent to say (so far as this provision is concerned) that the loss occurring thereafter is limited to cases where proof is filed ivithin 90 days as to say that they are excluded altogether unless the policy is renewed. This leaves the contention with no other support than the statement regarding the expiration of the policy, which is met by the improbability of the parties intending to take all substantial benefit away from the insured upon a considerable portion of the sales actually covered by the policy, and an extension of 90 days, or (perhaps more properly speaking) a limitation to 90 days, of the time within which proofs should be made regarding losses upon sales made during the life of the policy. We are of the opinion that the fairer view to take is that the provision in relation to the expiration of the policy refers to the time when sales, to be covered thereby, shall cease, and that it does not determine the time when losses must occur upon such sales, but that these shall be recov erable, regardless of that date, subject to the limitation as to final proof. This conclusion is justified by the rule that an ambiguity in an instrument is to be resolved against the draftsman, which is supported by authorities cited by counsel. See Tebbets v. Guarantee Co., 19 C. C. A. 281, 73 Fed. 95; Wallace v. Insurance Co., 41 Fed. 742; Wadsworth v. Tradesmen's Co., 132 N. Y. 540; Mercantile Credit Guarantee Co. v. Wood, 15 C. C. A. 563, 68 Fed. 529; Wisconsin Marine, etc., Bank v. Wilkin, 95 Wis. 111; Shakman v. U. S. Credit System Co., 92 Wis. 366. We think the court did not err in admitting proof of the losses which occurred after March 31, 1894.
The final proofs of loss were received in evidence against objection, and the court failed to instruct the jury (as requested) that such proofs could not be taken as proof of any fact therein contained. We are satisfied that such document was not proper evidence of the fact of loss, but, if there was not other evidence of loss upon each of the items submitted to the jury, counsel do not show or state the fact. No testimony was offered by defendant’s counsel, and the prima facie case of plaintiff, not being contradicted, was sufficient evidence, and defendant was not injured by the failure to give this request. Counsel say that this document was assumed to be prima facie evidence of the claim, but we find testimony which supports it. Mr. Sloman testified, without objection, that the paper “correctly represents the insolvents’ accounts and losses sustained,” etc. Upon cross-examination he was examined at length upon the respective items.
The next important question raised relates to the alleged refusal to instruct the jury that “there must be borne by the plaintiffs losses amounting to $525 before the defendant’s liability begins.” The court did instruct the jury upon this subject. He said:
“It appears' that, in estimating the losses under the terms- of this contract, the amount of yearly sales which the plaintiffs were authorized to make, as far as this contract bears upon the losses in this case, was $70,000. It also appears that there is to be deducted from these losses three-quarters of one per cent., according to the terms of this policy.”
If it appeared that this meant three-fourths of 1 per cent, upon the losses, instead of upon $70,000, it would be erroneous; but there is everything to indicate that the plaintiffs’ counsel made no such claim, and that all concerned understood the amount to be $525. Apparently, the court supposed that he was giving the substance of the request, as indeed he was if the amount was not in dispute. His attention was not called to the matter by exception or otherwise, and we should not reverse the case upon a technical construction of language if it misled no one.
Error is assigned on the refusal to direct the jury “ that the loss claimed on A. S. McDonald’s account was not a loss under the terms of the policy.” Mr. Sloman said that it appeared that all that remained of this item consisted of attorney’s fees, protest fees, and expenses, and sundry small claims, which McDonald would not recognize or pay, and which they did not care to litigate. Counsel say that this testimony shows that the entire claim was for attorney’s fees, expenses, interest, and protest fees, and in no sense a claim for goods sold and delivered, and was not covered by the policy, and, furthermore, that it appears that in the computation it must have been allowed in full. It seems to be conceded by counsel for the plaintiffs that this was a claim for attorney and other fees, etc., and not a balance upon sales; and we think the evidence shows it. It does not appear that it was not included in the verdict, nor is its allowance in any way disputed by counsel. It is true that the court repeatedly said that attorney’s fees could not be recovered, and it is not surprising that this subject should have been overlooked as to other items. We think, however, that the request should have been given, and this claim withdrawn from the jury.
We are of the opinion that the sale of the Burroughs & McKinstry stock by the sheriff brought this claim within the terms of the policy. The claim' against Webb was clearly so, under the execution returned unsatisfied, and the same is true of the Zabits claim, upon the report of the collection agency to which it was sent.
As there is reason to believe that the McDonald claim was included in the verdict, we feel constrained to reverse the judgment, and direct a new trial, unless the amount of said claim shall be remitted. The defendant should recover costs of this court. It is so ordered.
The other Justices concurred.
ON MOTION TO MODIFY.
Hooker, J. In this cause the defendant’s counsel move a modification of the judgment, counsel for the plaintiffs having elected to remit the sum of $140.32, as permitted by the opinion filed. The motion is based upon the claim that, after deducting the sum of $140.32, the judgment is still greater, by $107.18 than it should be.
The original brief of the defendant contains a computation purporting to show that plaintiffs sustained losses upon accounts against “rated debtors” of $375.36, and unrated debtors $500, making $875.36, from which the “initial loss” to be borne by plaintiffs, of $525, should be deducted, leaving, with interest added, $380.13 as the total, including the McDonald claim of $140.32, which being deducted, would leave $239.81 as the limit of defendant’s liability. It is admitted that the question was not raised by an exception, but it is urged that, inasmuch as error was found upon another point, the court should have ordered a new trial, inasmuch as the judgment was clearly excessive after deducting the McDonald account of $140.32. If we accept the theory of defendant’s counsel upon the law, we must then inquire whether the evidence in the case supports their claim that the verdict wms excessive.
In defendant’s original brief, counsel submit a table which they assert to be correct. Whether it is or not depends on the version of each account being verified by the undisputed testimony. We are not only not referred to the pages of the record sustaining the defendant’s contention as to all of these items, but the brief does not advise us that all of the testimony is included in the bill of exceptions. The brief filed on this motion is open to the same criticism. It gives a list of debtors that it says were rated, and states that the others were unrated, quoting appellant’s statement of the case in the former brief as evidence of the fact, and stating that this was not disputed by counsel for the plaintiffs. As the case was presented, counsel for the plaintiffs had no occasion to dispute the accuracy of the statement, as its only importance was in connection with an assignment which was not based upon an exception. In the brief filed in opposition to this motion, it is disputed, and the claim made that a number of rated debtors are classed as unrated in defendant’s table.
It is a general rule that error will not be presumed, but must be made to appear. The only error clearly shown involved $140.32, and we required plaintiffs to remit the amount or submit to a new trial. We are now asked to grant a new trial upon the statement of counsel that the verdict is excessive. If this record clearly showed that items were included in the verdict unjustly, it may be doubted if we should send the case back for a new trial, if error was not assigned upon them, inasmuch as counsel see fit to remit the only claims upon which error was assigned. Still less would we be justified in doing so where the record makes it uncertain that the verdict was excessive. It is the practice of this court to refrain from -ordering new trials where the record is such as to enable it to eliminate the errors, and render a judgment for the items regarding which no error is shown. One of the most pernicious features of our jurisprudence is the opportunity afforded to defeated litigants to compel their oppo nents to follow cases up and down through various courts, until costs become the principal controversy, and the original causes of action merely incidents, and citizens hesitate to commence a petty justice’s court case, lest it should ultimately involve them in financial ruin. Justice is practically denied to a large class of people. While it seems to be the policy of the law to allow this sort of thing, it has always been the practice of the courts to put an end to litigation as soon as the circumstances of the case will permit, with safety to the interests involved. The presumption is, as it should be, that justice was done in the circuit court; and, the contrary not being shownj we see no occasion to compel the plaintiffs to submit to another trial, upon a suspicion that the verdict was excessive.
The motion is therefore denied.
The other Justices concurred. | [
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M. J. Kelly, J.
Plaintiffs, Jeffrie and Judith Cole and John Wackerly, appeal a trial court’s grant of summary judgment, GCR 1963, 117.2(1), in favor of defendant Dow Chemical Company.
Plaintiffs filed two separate complaints on May 1, 1980. In their complaints, Jeffrie Cole and John Wackerly alleged that they were exposed to the chemical 1, 2 dibromo 3 chloropropane while working for defendant. Plaintiffs alleged defendant knew that exposure to the chemical could result in sterility. Count I of plaintiffs’ complaints alleged that Jeffrie Cole and John Wackerly did become sterile in violation of their constitutional right of privacy by depriving them of the right to make decisions relating to procreation, contraception and family relationships. Judith Cole also alleged that defendant’s action caused her to lose those same rights because of her husband’s sterility. Count II of plaintiffs’ complaints alleged that Jeffrie Cole and John Wackerly suffered a loss of a bodily function when they became sterile.
On June 24, 1980, defendant moved for summary judgment on both complaints alleging plaintiffs’ failure to state a claim. Dow Chemical argued that plaintiffs’ exclusive remedy was the Worker’s Disability Compensation Act (act), MCL 418.101 et seq.; MSA 17.237(101) et seq. After a hearing on September 19, 1980, the trial court granted defendant’s motion. Plaintiffs appeal as of right, GCR 1963, 806.1, and the appeals have been consolidated.
I
GCR 1963, 117.2(1) entitles the movant to summary judgment in its favor when the opposing party has failed to state a claim upon which relief can be granted. A motion based on GCR 1963, 117.2(1) challenges the legal sufficiency of the complaint and is tested on the pleadings alone. It is the duty of the reviewing court to accept as true well-pleaded facts in the complaint and to determine whether those claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Duhame v Kaiser Engineering, Inc, 102 Mich App 68, 71; 300 NW2d 737 (1980).
The Fourteenth Amendment to the constitution guarantees a right of privacy extending to decisions concerning marriage, family relationships and procreation. Eisenstadt v Baird, 405 US 438, 453; 92 S Ct 1029; 31 L Ed 2d 349 (1972), Griswold v Connecticut, 381 US 479, 485; 85 S Ct 1678; 14 L Ed 2d 510 (1965). In Carey v Population Services International, 431 US 678, 685; 97 S Ct 2010; 52 L Ed 2d 675 (1977), the Court, explaining the right of privacy, stated:
"The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, Griswold v Connecticut, supra, and most prominently vindicated in recent years in the contexts of contraception, Griswold v Connecticut, supra; Eisenstadt v Baird, supra; and abortion, Roe v Wade, supra; Doe v Bolton, 410 US 179 [93 S Ct 739; 35 L Ed 2d 201] (1973); Planned Parenthood of Central Missouri v Danforth, 428 US 52 [96 S Ct 2831; 49 L Ed 2d 788] (1976). This is understandable, for in a field that by defintion concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive. 'If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ Eisenstadt v Baird, supra, 438, 453 [92 S Ct 1029; 31 L Ed 2d 349]. (Emphasis omitted.)”
These cases forbid the state from interfering with an individual’s decision concerning procreation. However, since the right of privacy is grounded on the Fourteenth Amendment, the plaintiffs are required to demonstrate some form of "state action”. Civil Rights Cases, 109 US 3, 11; 3 S Ct 18; 27 L Ed 835 (1883).
"State action” is not easily defined. The mere fact that a business is subject to government regulation does not by itself convert its action into that of the state for purposes of the Fourteenth Amendment. Jackson v Metropolitan Edison Co, 419 US 345, 350; 95 S Ct 449; 42 L Ed 2d 477 (1974). Rather, the inquiry must focus on whether there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the business entity may be fairly treated as that of the state itself. Id.
Plaintiffs’ complaints do allege a violation of their Fourteenth Amendment right of privacy. According to plaintiffs, Dow Chemical exposed them to inhalation of 1, 2 dibromo 3 chloropropane which caused Jeffrie Cole’s and John Wackerly’s sterility. This action did interfere with plaintiffs’ right to make decisions in the area of procreation and family matters.
However, plaintiffs’ complaints fail because there is no "state action” upon which to base their claims. While plaintiffs argue that the Worker’s Disability Compensation Act provides the. state action, they fail to demonstrate a sufficient nexus between the state’s enforcement of the act and the challenged action of Dow Chemical. The act did not affect Dow Chemical’s decision to have its employees work with the chemical which caused plaintiffs’ sterility. The state’s mere acquiescence in a private action does not convert that action into that of the state. Flagg Brothers, Inc v Brooks, 436 US 149, 164; 98 S Ct 1729; 56 L Ed 2d 185 (1978). Plaintiffs’ complaints fail to state a cause of action based on the alleged violation of their right of privacy because they have failed to demonstrate any state action. The trial court did not err when it awarded summary judgment to defendant on Count I of plaintiffs’ complaints.
II
Plaintiffs also allege that the trial court erred when it granted summary judgment because the Worker’s Disability Compensation Act does not bar their actions. According to plaintiffs, the act’s exclusive remedy provision, MCL 418.131; MSA 17.237(131), does not prevent their actions because their suits are based upon injuries not compensable under the act.
Where a worker sustains a compensable injury, the Worker’s Disability Compensation Act bars any common-law tort cause of action by the employee against his employer. MCL 418.131; MSA 17.237(131). An injury which is "a personal injury arising out of and in the course of [an injured party’s] employment” is compensable under the act. MCL 418.301; MSA 17.237(301), Sewell v Bathey Manufacturing Co, 103 Mich App 732, 736; 303 NW2d 876 (1981). Personal injuries for which the act provides a remedy include both physical and mental injuries suffered on account of employment. Id.
Plaintiffs, however, claim that their injuries are not compensable under the act. This Court has recognized that an employee may bring an action against his employer for injuries which arise out of his employment but are not covered by the act. In Moore v Federal Dep’t Stores, Inc, 33 Mich App 556; 190 NW2d 262 (1971), lv den 385 Mich 784 (1971), plaintiff sued her employer for false imprisonment. Her employer moved for summary judgment claiming that workers’ compensation was plaintiff’s sole remedy. The trial judge granted the summary judgment and plaintiff appealed. This Court found that plaintiff’s action was based on her unlawful detention and not on any physical or mental injury. Id., 559. Because the act was not meant to cover an employee’s unlawful detention, this Court reversed the summary judgment. Id., 560.
Similar results have been reached in other decisions of this Court. Kissinger v Mannor, 92 Mich App 572, 577; 285 NW2d 214 (1979) (an intentional tort committed by a co-employee which did not result in physical injury was not covered by the act), Broaddus v Ferndale Fastener Division, Ring Screw Works, 84 Mich App 593, 600; 269 NW2d 689 (1978), lv den 403 Mich 850 (1978) (an employee was entitled to maintain a suit against his employer and his employer’s workers’ compensation carrier for intentional and wrongful termination of compensation benefits), Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 369; 258 NW2d 227 (1977) (the act’s exclusive remedy clause does not bar an employee’s action for sexual discrimination), Milton v Oakland County, 50 Mich App 279, 284; 213 NW2d 250 (1973) (a plaintiff’s action for wrongful discharge is not barred by the act’s exclusive remedy provision). In all these cases, this Court allowed the plaintiffs causes of action for injuries other than physical or mental injuries. Where a plaintiff alleges both a physical or mental injury and some injury not within the scope of the act, we have required that plaintiff to pursue his workers’ compensation remedy for those injuries covered by the act. Stimson, supra, 369, Milton, supra, 284.
Plaintiffs allege that their sterility was caused by exposure to 1, 2 dibromo 3 chloropropane while working for Dow Chemical. Their sterility is a physical impairment arising out of and in the course of their employment. On appeal, plaintiffs argue that their action is not based upon their physical injuries but upon Dow Chemical’s violation of their constitutional right of privacy. They claim damages for "emotional hardship” as opposed to physical injury. We find that plaintiffs’ actions are based upon their physical injury, that any emotional hardship is derived from the physical impairment and that the actions are barred by the exclusive remedy provision of the Worker’s Disability Compensation Act. As discussed earlier in this opinion, plaintiffs’ constitutional argument fails because they are unable to establish that the enforcement of the act is any type of state action. The trial court did not err when it granted defendant’s motion for summary judgment.
Ill
Plaintiff Judith Cole also appeals the dismissal of her action. As we have discussed earlier, her husband’s sole remedy lies with the Worker’s Disability Compensation Act. A wife is not pérmitted to maintain a separate action against her husband’s employer for personal injuries sustained by her husband during his employment. Moran v Nafi Corp, 370 Mich 536, 543; 122 NW2d 800 (1963). Because her husband’s sole remedy was workers’ compensation benefits, Mrs. Cole failed to state a cause of action which could survive defendant’s motion for summary judgment.
The trial court did not err when it dismissed plaintiffs’ actions for failure to state a cause of action.
Affirmed.
Allen, P.J., concurred. | [
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Per Curiam.
Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, on March 7, 1980. He now appeals by right.
On October 23, 1979, defendant entered the apartment of Francis Allen Schultz to settle a dispute. Defendant apparently intended to stab Schultz, but, unable to do so, instead unleashed a shotgun blast at him at the close range of two to six feet.
Arriving home from work the same afternoon, one of the victim’s roommates discovered that the victim was gone and his stereo missing. Six hours later, after discovering blood and human flesh in the bathroom and four bloody towels in the bathroom wastebasket, the victim’s roommates summoned the police. After arriving on the scene, officer Ratliff of the Grand Rapids Police Department was informed by the victim’s roommates that the tenant upstairs carried a sawed-off shotgun. The officer then went upstairs and observed bloodstains smeared along the baseboard at the top of the stairwell and on defendant’s apartment door. Officer Ratliff tried to open the door, but it was locked. A roommate of the victim unsuccessfully attempted to obtain a key from the landlord and then suggested that the officer enter the apartment through a back window. The officer placed a ladder up against the back of the building and entered the apartment without a warrant. Upon entering the apartment, Ratliff discovered the body of Francis Allen Schultz, the victim.
Defendant was apprehended the next morning in Lake County, Michigan, was returned to Grand Rapids and was charged with first-degree murder.
Defendant now contests the trial court’s denial of his motion to suppress the evidence produced by the warrantless search. A ruling on a motion to suppress by the trial court will not be disturbed by this Court unless clearly erroneous. People v Grimmett, 97 Mich App 212; 293 NW2d 768 (1980). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v Goss, 89 Mich App 598; 280 NW2d 608 (1979).
The general rule under both the Michigan and United States Constitutions is that searches conducted without a warrant (without the prior approval of a judge or magistrate) are unreasonable. US Const, Am IV; Const 1963, art 1, § 11; Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967). Exceptions to the rule are narrowly and carefully drawn, and the burden is on those seeking the exception to show the need for it. Coolidge v New Hampshire, 403 US 443, 454-455; 99 S Ct 2022; 29 L Ed 2d 564 (1971), People v Whalen, 390 Mich 672, 677; 213 NW2d 116 (1973).
In the instant case, defendant does not dispute the fact that there was probable cause. Also, there is no question as to defendant’s standing to challenge the legality of the search. See People v Mason, 22 Mich App 595; 178 NW2d 181 (1970). Furthermore, it is uncontested that no search warrant was obtained.
In People v White, 392 Mich 404, 410; 221 NW2d 357 (1974), the Court stated:
"To sustain the validity of a warrantless search the burden rests on the. people to demonstrate the police acted in a reasonable manner, based on probable cause and in response to an exigent circumstance bringing the search under one of the specifically established exceptions to the warrant requirement.”
In People v Dugan, 102 Mich App 497, 503; 302 NW2d 209 (1980), we set forth the proper standards to be used in applying the exigent circumstances exception:
"[W]hen the police have probable cause to believe that a search of a certain place will produce specific evidence of that crime (the foundation requirements for issuance of a search warrant), there is no need for a warrant if the police also have probable cause to believe that an immediate warrantless search is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the accused. People v Harris, 95 Mich App 507, 510; 291 NW2d 97 (1980). See United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), People v Plantefaber, 91 Mich App 764, 770; 283 NW2d 846 (1979).”
The prosecution contends in this case that the search was justified by an emergency, because the shooting victim could have been alive and critically in need of medical treatment. In Mincey v Arizona, 437 US 385, 392; 98 S Ct 2408; 57 L Ed 2d 290 (1978), the Court held:
"We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.” (Footnotes omitted.)
According to Wayne v United States, 115 US App DC 234; 318 F2d 205, 209 (1963), when police officers reasonably believe that a need to protect life or property requires immediate action, they may act on that belief even if it ultimately is found to be erroneous. In upholding a warrantless entry, the Wayne court stated:
"No one seeking entry 'knew’ as a fact that [the victim] was dead and no one had a right to assume it was a 'body’, rather than a dying or unconscious person, as the police thought.”
It is clear that the police may seize any evidence that is in plain view during the course of their emergency activities. Michigan v Tyler, 436 US 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978). However, in order for the plain view exception to be applicable, the officer must have been rightfully in the position from which evidence was visible in plain view, the officer must have had prior justification for the intrusion, and the discovery must have been inadvertent. Coolidge v New Hampshire, supra, People v Johnson, 104 Mich App 629, 634-635; 305 NW2d 560 (1981), People v Dugan, supra.
Officer Ratliff testified at the suppression hearing that he entered the apartment because he felt that "someone had been seriously injured, or something”.
The circuit court ruled that the police were relieved from the warrant requirement due to the emergency situation, and cited People v White, supra. The circuit court felt that officer Ratliff had reasonably concluded that an injured person might well be in need of immediate aid. We have reviewed the trial court’s findings meticulously but are unable to conclude that the denial of defendant’s motion to suppress was clearly erroneous.
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D. F. Walsh, J.
Blue Cross & Blue Shield of Michigan (hereinafter BCBS) appeals from the Workers’ Compensation Appeal Board’s denial of its motion to set aside a redemption agreement.
Petitioner Peter Ptak sustained injuries while at his place of employment, the Pennwalt Corporation. Ptak sought medical treatment and BCBS paid $4,730.50 for the medical care.
On May 10, 1979, petitioner filed a petition for a hearing with the Bureau of Workers’ Compensation. He sought benefits for injuries to his right arm and leg and lower back, allegedly sustained during the course of his employment with respondent Pennwalt Corporation. On April 10, 1980, BCBS filed a notice of its lien against any possible recovery of compensation benefits for the reimbursement of any work-related medical expenses.
On June 18, 1980, BCBS filed a motion to intervene as a party in the compensation matter. BCBS’s attorney also filed an appearance with the compensation bureau.
On June 26, 1980, petitioner and respondents entered into an agreement to redeem liability for $16,000. The redemption was approved by order entered on the same day. The redemption proceeding was conducted without notice to BCBS.
On July 25, 1980, BCBS filed a motion to vacate the redemption agreement or, in the alternative, to remand for a hearing on its right to reimbursement for medical expenses. Both petitioner and respondents opposed the motion. The Workers’ Compensation Appeal Board denied the motion on the ground that BCBS had no standing to seek the requested relief. In its order, the board cited two prior compensation cases which held that BCBS was not entitled to reimbursement since payments had been voluntarily paid and the parties could not be forced into an adjudication of liability.
On appeal, BCBS maintains that it "has no objection to Mr. Ptak and his employer settling his rights under the act”. However, BCBS argues that because it is entitled to reimbursement for the expenses paid for work-related injuries, the appeal board should have remanded the matter for a determination of whether its payments were reasonable and whether the injuries arose in the course of employment. BCBS claims that under the broad jurisdiction granted by statute to the Bureau of Workers’ Compensation, it does have standing to raise this issue. We agree and remand this case for a further hearing.
Section 315 of the Worker’s Disability Compensation Act provides:
"The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of his employment, reasonable medical, surgical and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. * * * If the employer fails, neglects or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by him, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the hearing referee * * MCL 418.315; MSA 17.237(315).
In Jolliff v American Advertising Distributors, Inc, 49 Mich App 1, 6; 211 NW2d 260 (1973), this Court stated:
"The board may only order reimbursement of medical expenses if they were actually incurred by the employee; or, if they were incurred by another on his behalf, then the board may only order reimbursement if the amount of the expenses are 'owing’ to such third party. If the party who incurred such expenses retains any sort of contingent right to be reimbursed by the employee, then the board may order reimbursement.”
Accord, Epps v Mercy Hospital, 69 Mich App 1; 244 NW2d 340 (1979).
Section 841 of the compensation act provides:
"Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau. The director shall be deemed to be an interested party in all workmen’s compensation cases in questions of law.” MCL 418.841; MSA 17.237(841).
Further, § 847 states:
"Upon the filing with the bureau by any party in interest of an application in writing stating the general nature of any claim as to which any dispute or controversy may have arisen, the director shall set the case for hearing and shall designate a hearing referee to hear the case.” MCL 418.847; MSA 17.237(847).
Under Jolliff, supra, and Epps, supra, it is clear that BCBS is entitled to reimbursement for work-related benefits already paid to petitioner. The "voluntary” nature of any payments to an injured employee does not affect this right to reimbursement. The reimbursement, however, is dependent upon a determination of whether petitioner’s injury arose during the course of his employment and whether the payments made by BCBS were reasonable and necessary. Such issues fit squarely within the jurisdictional authority granted to the compensation bureau under MCL 418.841; MSA 17.237(841).
In the instant case, both the employer and the employee received notice of BCBS’s claim for reimbursement prior to the entry of the redemption agreement. BCBS had filed: (1) a notice of lien; (2) a motion to intervene; and (3) an appearance by its attorney. Despite this action by BCBS, the settle ment negotiations were conducted without any notice whatsoever to BCBS.
BCBS’s right to an adjudication of liability for purposes of reimbursement should in no way preclude an employer and employee from entering into redemption agreements. However, if such a settlement is reached after the receipt of proper notice from a third-party insurance company with regard to reimbursement, the employer must take the additional claim into account and make arrangements for payment in the event that liability is ascertained at a later time. If the employer fails to do so and liability is subsequently determined, the employer must pay the full amount of the reimbursement awarded to the insurance company.
Finally, we note respondents’ additional argument raised on appeal concerning an alleged procedural defect. They claim that BCBS is not entitled to any reimbursement because it failed to file form 104. Although a third party may utilize this form to intervene in a compensation case, see 1979 AC, R 408.34, it is not the only method to gain intervention. The statute only requires that there be an "application in writing stating the general nature of any claim * * * [and] the director shall set the case for hearing”. BCBS’s motion to intervene did notify the parties about its claim for reimbursement. Respondents do not argue on appeal that they were unaware of. BCBS’s claim. Therefore, they were not prejudiced by BCBS’s failure to file form 104. A motion to intervene is not explicitly prohibited by the statute. Under such circumstances, we reject the argument that this alleged procedural error should preclude BCBS from any reimbursement.
This case is remanded to the appeal board for a hearing to determine whether petitioner’s injury was work-related and, if so, the amount of the reasonable and necessary medical expenses paid by BCBS in connection with this injury.
Remanded.
The rule states, in part:
"In cases of dispute coming under the jurisdiction of the bureau, any party may apply to the bureau for relief. The complaining party shall file his application (form 104) in triplicate with the bureau at its Lansing office. The bureau shall thereupon serve the adverse party with a copy of the application and, at the same time, notify the parties of the time and place of the pre-trial hearing. The adverse party shall file his answer thereto with the bureau within 15 days after service, and serve a copy of the answer on the party making the application.” | [
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Per Curiam.
Appellant appeals by right from the Michigan Tax Tribunal’s dismissal of appellant’s petition for review of its 1979 property tax assessment. The tribunal held that it had no jurisdiction because appellant had failed to protest the assessment before the board of review and that adequate notice of the increased assessment had been sent.
Appellant is the owner of a 348-unit apartment complex in the City of Rochester. Appellant’s name had appeared on appellee’s tax rolls for the property from 1974 to 1979. The name of the United States Department of Housing and Urban Development (HUD) also appeared on appellee’s tax rolls for the property from 1975 to 1979. The assessment for the property remained unchanged from 1974 to 1977. In 1978, the assessment was increased by approximately one percent. Notice of the increase was sent to HUD but not to appellant. The assessor testified that he sent the notice to HUD because local rumor indicated that HUD was the owner of the property. The managing partner of appellant testified that appellant eventually became aware of the 1978 increase through HUD and that appellant had not contested the increase because of its small size and the expense of litigation.
In 1979, the assessment was increased by approximately 12 percent. Again, notice of the increase was sent to HUD but not to appellant. Appellant became aware of the increase only after the board of review hearing was concluded.
MCL 211.24c; MSA 7.24(3) provides:
“The supervisor or assessor shall give to each owner or person or persons listed on the tax roll of the property a notice by first class mail of an increase in the assessment for the year. The notice shall specify each parcel of property, the assessed valuation for the year and the previous year, the net change in assessment, and the time and place of the meeting of the board of review. The notice shall be addressed to the owner according to the records of the supervisor or assessor and mailed not less than 10 days before the meeting of the board of review. The failure of the property owner to receive notice shall not invalidate an assessment roll or an assessment on property.”
The tribunal held that notice to HUD satisfied the requirements of the statute as follows:
"Based upon the clear language of the statute, notice is sufficient when the assessor mails notice of increase to the owner, or those persons whose name appears on the roll. HUD’s name and address has appeared on petitioner’s tax roll since 1975. * * * It is well established in Michigan case law that an assessment of land is not void because it is made in the name of one other than the owner.”
The tribunal’s interpretation of the statute ignored the word "each”. Since appellant as well as HUD was a person listed on the tax roll of the property, appellant was entitled to notice.
The tribunal held that appellant had waived the right to receive notice in 1979, by failing to contest the 1978 assessment, relying on Chilton’s, Inc v Wilmington Apartment Co, 365 Mich 242, 248; 112 NW2d 434 (1961). In that case, plaintiff had purchased certain property from the defendant apartment company but did not record the deed or cause the property to be entered on the tax rolls under its name. Tax bills were sent to the defendant apartment company, which did not forward them to plaintiff. Subsequently, the property was sold for delinquent taxes to other defendants, with whom it was alleged that the defendant apartment company was engaged in a conspiracy. The Court said:
"That plaintiff was charged with notice that taxes were being levied on the lot is not open to question. No claim is made that the lot was exempt from taxation for any reason, or that plaintiff believed such to be the case. Failure on the part of plaintiff to put its deed on record and to have the property entered for taxation in its name subjected it to the hazards of the situation resulting therefrom. It has been said that:
" 'A court of equity will not relieve a party from the consequences of a risk which he voluntarily assumes.’ Patterson v Brown, 32 NY 81 [1865]; McCredie v Buxton, 31 Mich 383, 388 [1875]; Blunt v Auditor General, 324 Mich 675, 680 [37 NW2d 671 (1949)].
"Clearly the failure of plaintiff to properly protect its interest in the lot did not result in any duty on the part of any of these defendants to assume that plaintiff was not aware of the actual situation and to advise it with reference thereto.”
Here, in contrast to the Chilton case, it is not contended that appellant’s deed to the property was unrecorded or that appellant’s name was not entered on the tax rolls of the property. Appellant had a right to rely upon the assessor’s performance of his statutory duty to notify each person listed on the roll. We know of no authority indicating that a party’s waiver of a procedural defect in one proceeding prevents the party from insisting on correct procedures in a subsequent proceeding.
In this connection, we note that the tribunal’s reliance on Caplan v Jerome, 314 Mich 198, 203; 22 NW2d 270 (1946), was misplaced. In that case the Court said:
"Every owner of land is chargeable with notice that a tax will be levied on it each year. It is no hardship to require that he shall appear at the hearing in court and raise any question affecting the manner of the assessment as well as the validity of the taxes, and secure such a decree as in law and equity protects his interests as owner.”
However, the statute at issue here was enacted by 1969 PA 115 to change the rule stated in Caplan, at least as it applied to notice of an increase in assessment. See W & E Burnside, Inc v Bangor Twp, 77 Mich App 618, 623; 259 NW2d 160 (1977) , rev’d on other grounds 402 Mich 9501 (1978) .
The tribunal was correct in holding that it had no jurisdiction over an assessment dispute not previously protested to the board of review. MCL 205.735(1); MSA 7.650(35)(1). However, satisfaction of the notice requirement of MCL 211.24c; MSA 7.24(3) is a precondition to a valid increase in a tax assessment. Burnside, supra, Sisters of Mercy, Province of Detroit, Inc v Pennfield Twp, 91 Mich App 470; 283 NW2d 645 (1978). The statutory language, "The failure of the property owner to receive notice shall not invalidate an assessment roll or an assessment on property”, does not require a different result. That language merely prevents invalidation of an assessment where notice was sent by first class mail pursuant to the statute but was not actually received by the property owner. Burnside, supra, 624, fn 5, Sisters of Mercy, supra, 473, fn 3. Since the tribunal was without jurisdiction to review the assessment dispute but appellee failed to satisfy a precondition to a valid increase in assessment, the tribunal’s dismissal of appellant’s petition is affirmed but the increase in assessment is invalid and unenforceable. Burnside, supra, 625, Sisters of Mercy, supra, 473.
Affirmed in part and reversed in part. | [
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To require respondent to make an order for the production of certain books, in which the transactions, respecting which an accounting had been ordered, were entered.
Granted February 10, 1892, with costs. | [
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To compel the recognition of relator as a member of the respondent board, in a case where relator had sent his resignation to the mayor, who declined to accept it.
The circuit judge granted the writ. Affirmed May 11, 1897, without costs. | [
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To vacate an order dismissing an appeal from a judgment of a justice of the peace.
Denied 1850.
The order of dismissal is a judgment that may be reviewed within the meaning of Laws 1849, Sec. 67, p. 288.
A mandamus will be allowed to set an inferior court in motion, but not for the purpose of requiring the court to come to any particular conclusion, or retrace its steps where it has already acted. | [
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To vacate an order for a new trial in ejectment.
Denied October 9, 1877.
Defendant paid to the clerk of the court the damages assessed -and the costs, entered a motion for a new trial under the statute, and upon affidavit showing payment, presented to the court, a new trial was granted.
Relator insisted that the clerk was not authorized to receive the amount of damages and costs; that a portion of the amount paid to the clerk consisted of National bank notes, and that respondent had no notice of the application for a new trial. | [
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] |
To vacate order allowing further proofs to be taken in a chancery cause, after the same had been submitted, on the .ground of the insufficiency of the showing made therefor.
Order to show cause denied April 4, 1893. | [
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] |
To vacate order quashing writ of garnishment.
Granted May 11, 1892, with costs.
The circuit judge quashed the writ on the ground that the affidavit for the writ did not sufficiently describe the court in which the decree on which the suit is brought was obtained. The affidavit alleged that affiant is complainant in' a case commenced, etc., and “that the same is a personal action arising upon a decree in chancery in an action for divorce, in which deponent was complainant and the said defendant was defendant, in favor of complainant.” | [
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] |
To have a settlement made between the respective counties opened, and to require respondents to meet with them for the purpose of arranging for a proper and complete settlement providing for the apportionment of State taxes between the two counties.
Denied April 24, 1889.
The respondent county was organized in the spring of 1887 by an act of the legislature, which provided for a settlement between the counties, and a settlement was had, but in 1887 and 1888 the auditor-general laid the apportionment of state taxes of both counties on Ontonagon alone.
Held, that no adjustment could well be made in advance for future state taxes; that the apportionment should be made by the auditor-general; that a settlement already had cannot be disturbed on mandamus, and if an amicable adjustment cannot be effected resort must be had to the usual judicial remedies. | [
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To compel respondent to vacate an order setting aside an execution, and vacating a sale made to satisfy a judgment recovered by plaintiff, in an ejectment suit, for the value of land, on his electing to abandon it to the defendant.
Denied April 27, 1888.
Held, that the purchaser at said sale takes his title subject to the right of the defendant to defeat it by taking a new trial at any time within the statutory three years. | [
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To compel respondents to issue a license authorizing relators to carry on the business of saloon-keepers.
Order to show cause denied October 29, 1891.
Delators had already made three applications for a license, one of which was denied by the Common Council, and the action of the Council in granting the others had been vetoed by the Mayor. The last application was granted by the Council and vetoed by the Mayor, who claimed that under the charter the council had the right to refuse to license the keeping of a saloon in a given locality; that under the action already had the question of a license for a saloon in the locality named had been disposed of and tbat action had not been re-considered; that the application for the license was not a new one but was the same that had been presented and acted upon and disposed of, and that the application itself was not signed. | [
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To compel respondent to impanel a jury to assess the value of property replevined on process from Justice Court, where plaintiff had recovered judgment which was reversed by the Circuit Court on certiorari, and at the- next term after the reversal of the judgment defendant moved the Circuit Court for an order that a jury be impaneled to assess plaintiff’s damages.
Denied 1844.
Held, that the Circuit Court had no such power as the mandamus would command it to exercise; that the Circuit Court would have power to award a restitution of the property; that the motion for assessment was made too late, and that the refusal of the Circuit Court to grant a motion for the assessment qí damages by a jusy, was not a proper foundation for the application to this court for a mandamus commanding the Circuit Court to impanel a jury to assess the value of the property replevined | [
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To compel respondent to repave that portion of a street lying between its tracks, and on each side of its track to the end of its ties, under the provisions of the ordinance which granted respondent's assignor the right to operate its lines.
The circuit judge granted the writ.
Affirmed April 21, 1896, with cost's.
Eespondent contended that the ordinance did not require it to repave, and insisted that mandamus is not the proper remedy. | [
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To compel respondent to enter an order allowing plaintiffs to amend the return day in a summons.
Order to show cause denied May 5, 1891.
On March 25, 1891, relator commenced suit in the St. Clair Circuit by summons, but by mistake the return day was fixed for March 14, instead of April 14, the day named in the praecipe. A writ of garnishment returnable April 14 was issued on the same day: After service, as it is alleged, and after the garnishee had paid ovei’ the moneys in his hands, plaintiffs moved to amend.
This is the third application. | [
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To vacate an order made restraining relator from trying an attachment suit, pending in the Superior Court of Detroit, in favor of an alleged creditor of relators, commenced prior to relators’ assignment of its property for the benefit of its creditors.
Granted January 20, 1886. | [
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] |
To vacate order dissolving attachment.
Order to show cause denied February 4, 1891.
Attachment before debt due under Act No. 149, Laws of' 1889. The only questions'raised before respondent were the sufficiency of the affidavit and the constitutionality of the act, and those were the only questions considered on the application.
The circuit judge based his order of dissolution upon the insufficiency of the affidavit, holding that the affidavit must set forth sufficient facts to satisfy the circuit judge of the necessity for the immediate issuance of the writ. | [
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] |
To vacate order dismissing appeal from Justice Court.
Granted October 24, 1877.
The circuit judge assumed that the act creating the Superior Court (Laws of 1875, p. 42, Laws of 1877, p. 138), divested the circuit of jurisdiction and conferred it upon the Superior Court in cases where one of the parties was a resident of the city.
Held, that the. Circuit Courts and Justice Courts are constitutional courts, and the jurisdiction conferred upon them is beyond the reach of legislation. | [
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To compel the vacation of an order requiring relators, at the instance of creditors who had brought suit, to produce and deposit with the clerk of the court, for inspection by the attorneys for the creditors, defendants’ books of account.
Granted June 2, 1894, with costs. | [
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] |
To compel respondent to settle a bill of exceptions in a crimi nal case, -where relator was convicted and sentenced June 26, 1891, and a motion was made to settle the bill October 3, 1892. In the meantime several terms of court had intervened, and no order had been made extending the time within which exceptions might be presented.
Denied January 17, 1893. | [
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To compel respondent to permit an amendment to a summons, adding a party defendant after plea in abatement.
Order to show cause denied June 4, 1895.
Relator brought suit before a justice against three parties who were non-residents. On the return day plaintiff declared and defendants filed a plea in abatement setting forth that one Rardon was a joint contractor.
Plaintiff asked leave to amend, which was denied. Plaintiff took a special appeal to the Circuit and there moved to amend. | [
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To vacate an order granting leave to file an amended declaration.
Denied April 22, 1873.
A- declaration for false imprisonment had been amended by adding a count for malicious prosecution. | [
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To compel respondent to vacate an injunction.
Order to show cause denied May 12, 1891.
An injunction bill was filed against the People’s Savings Bank of Detroit, and relator and others, residents of Windsor, Ont., to enjoin the bank from paying, and the other defendants from assigning or collecting a certain check, held by certain of the defendants and drawn upon the bank. A preliminary injunction was issued. Notice of the issuance of the injunction was served personally upon the Windsor parties, and the order for their appearance.in the suit was published. | [
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] |
To dissolve an attachment.
Denied March 12, 1896, with costs.
The affidavit alleged (1) that defendants fraudulently contracted the debt, (2) that defendants had assigned and disposed of their property with intent, etc., and (3) that defendants were about to assign and dispose of their property with intent, etc.
Delator insists that the opinion filed by the court on the mo? tion to dissolve is inconsistent with his refusal to dissolve the attachment. | [
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32
] |
To compel respondent to vacate an order directing tbe payment of certain sums as solicitor’s fees', temporary alimony, etc., in a divorce case, wherein relator is defendant, and to set aside on order committing relator for contempt in refusing to comply with tbe first named order.
Denied December 15, 1893, with costs. | [
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To compel respondent to make a further allowance to relator out of the estate of her deceased husband, and to set aside an order assigning the estate, out of which such allowance should be paid, to the devisees, in the absence of any testimony tending to show the then present needs and circumstances of the relator.
Denied November 18, 1891, with costs. | [
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] |
To compel respondents to place upon the assessment roll so much of certain real estate owned by a lodge of the Independent Order of Odd Fellows, as was not used for lodge purposes, but was rented for mercantile purposes.
Granted in the alternative June 28, 1892. | [
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To compel respondent to issue to relator a certificate of purchase of a city lot in Lansing, which was purchased by him at a sale of the same as forfeited school lands.
.Denied, with costs, July 12, 1870.
Respondent insisted that under the law then in force the purchaser whose rights were forfeited was entitled to a year’s redemption and that the certificate of purchase could not issue to relator until the year had expired.
The relator, on the other hand, insisted that the statute which purports to give the right of redemption, for various reasons, is unconstitutional and void. | [
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] |
To dismiss garnishment proceedings because, in the principal suit commenced by declaration, no rule to plead was entered until the next day after- the suit was commenced and after service upon both the principal defendant and the garnishee defendant.
Denied October 23, 1895, with costs. | [
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To compel respondent to strike from the files an amended declaration which introduced a new cause of action.
Granted, 1844.
Held, (1) that the motion to strike from the files and the decision of the Circuit Court thereon, would constitute no part of a common law record of the case, and that mandamus is the proper remedy in such a case to obtain a reversal of the decision; (2) that after an amended declaration has been filed by leave of court and demurred to, plaintiffs could not file a second amended declaration as of course, but must obtain leave of court; (3) that tbe original and also tbe first amended declaration were in debt, to recover the penalty for usury under the statute, 'while the last added three counts for money had and received, introducing a new cause of action, and (4) that an action founded upon a statute cannot be joined with an action at common law. | [
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] |
To require respondent to strike from the official ballot the ticket of the Democratic People’s Union Silver Party.
Denied October 15, 1896. | [
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] |
To vacate an order, made in a partition case, confirming the report of commissioners appointed therein and to set aside such report, for the reason that the commissioners proceeded without giving notice to complainants or their solicitors, but were attended by the solicitor for some of the defendants, who were tenants in common of the land, that such solicitor directed the commissioners in what manner to proceed, and prepared the report which they signed and filed.
Granted May 13, 1895. | [
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To compel respondent, clerk of the township to which relator’s district formerly belonged, to certify to the supervisor of the township to which it now belongs, the amount ascertained by the inspectors as due to relator’s district from what remained of the old district out of which it was organized.
Granted December 21, 1883. | [
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To vacate injunction restraining proceedings to recover possession of certain premises.
Denied November 13, 1891, with costs. | [
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] |
To compel vacation of order modifying judgment.
Order to show cause denied June 5, 1894.
In an action for negligent injury relator recovered a judgment for $5,000. Defendant moved for a new trial, alleging, among other things, that the verdict was excessive. The .court, entered an order granting a new trial unless plaintiff would consent to a reduction of the judgment to $1,500. | [
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] |
To compel respondent to receive the tax of $300 provided for by the liquor law of 1887, and issue a receipt therefor, on the ground that the law of 1889 is unconstitutional.
Denied April 29, 1890, without costs.
Law held unconstitutional, but writ refused because there is no showing that a bond has been approved and filed, as required by the law of 1887. | [
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To vacate an order transferring a cause from the Alpena to the "Wayne Circuit Court, it appearing that neither of the parties, or their attorneys, were residents of the County of Wayne.
Granted May 16, 1890. | [
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] |
To audit and allow a certain account for services.
Denied January 20, 1892, with costs.
Delator claimed that he was entitled to $3 per day under, the statute, inasmuch as no other rate had been fixed. Despondent insisted that a rate of $2 per day had been fixed, and relator’s account had been allowed accordingly. | [
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] |
To compel the appointment of a professor of homeopathy.
Denied May 13, 1869.
The Act of 1855, p. 232, assumed to limit the power of the regents to regulate the management of the university by enacting the following proviso: Provided, that there shall always be at least one professor of homeopathy in the department of medicine.
The court was equally divided upon the question, whether the Legislature had power under the Constitution to exercise any such authority over the regents. | [
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To compel respondent to deduct from the net assets of relator for the purpose of taxation the value' of the real estate mortgages held by it.
Granted April 28, 1893, without costs. | [
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To compel respondent to furnish to the state board of equalization the assessment roll of his township, in order to enable said board to discharge its duties, the proceeding being instituted by the board of supervisors.
Respondent filed a cross-petition, setting forth that while county clerk he had been elected supervisor, and that the board of supervisors refused to recognize him as such, and praying that they be compelled to recognize him. The question in controversy was, whether the offices of county clerk and supervisor could be held by one person at the same time.
The writ as prayed for in the cross-petition, was granted Dec. 1, 1896, with costs, the court holding that respondent, by accepting the office of supervisor had vacated the office of clerk.
It appeared that the state board of equalization was to meet on the third Monday in August, and that the Circuit Court for the county would not convene until October, hence the proceeding was’entertained in the Supreme Court. | [
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To compel the vacation of an order quashing garnishment proceedings against one McCartney.
Denied July 2, 1895, with costs.
Stone et ah, non-residents, brought suit, by attachment, in Wayne County against Block, a non-resident, causing to be issued out of the Wayne Circuit Courts writs of attachment against one Weiner, a resident of Wayne County, and a writ of garnishment against McCartney, a resident of Ionia County. Block had no property in Wayne County and did not appear. Before the return day of any of the writs, plaintiff discontinued as to Weiner and afterwards McCartney answered admitting an indebtedness to Block, but alleging that he had been informed that the claim had been assigned by Block prior to the service of the writ of garnishment. Plaintiffs then demanded a trial of the statutory issue. McCartney afterwards moved to quash the writ.
Relators contend that the affidavit in garnishment stands as a declaration; that the disclosure has the same effect as a plea (How. Stat., Sec. 80C8), or as an answer in Chancery (Allen vs. Hazen, 26 M., 141); that by the disclosure the garnishee defendant had waived the jurisdictional question and that as service had been made upon the principal defendant, as required by How. Stat., Sec. 8095, the case is ruled by Newland vs. Circuit Judge, 85 M., 151. (No. 47.) | [
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To compel the allowance of relator’s bill for service rendered in serving a requisition.
Denied November 18, 1892, with costs.
The answer alleged that a third party .undertook to pay and did pay relator for his expenses and services, and relator proceeded to a hearing without framing an issue.
Held, that the answer must be taken as true; Merrill vs. County Treasurer, 61 M., 95 (1447); Murphy vs. Township Treasurer, 56 M., 505 (1417); Hickey vs. Supervisors, 62 M., 100 (1530); Post vs. Township Board, 63 M., 324 (1249).
A motion was afterwards made and granted March 8, 1893, to re-open case and frame issues; the issues were settled and sent down for trial March 11, 1893. | [
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] |
To compel the approval of a liquor bond.
Denied June 29, 1892, with costs.
The answer set forth that one of the sureties on the bond was the treasurer of said village, and that he was therefore ineligible, and further, that said surety was not, in their judgment, worth the amount of said bond, over and above his indebtedness and exemption. | [
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To compel respondent to dismiss proceedings commenced in Bay County against relator, an attorney at law, while on his return to his home in St. Ignace, from attendance at the Supreme Court in the argument of a case.
Granted May 25, 1897, with costs against plaintiff.
Held, that Sec. 7253 of How. Stat. exempts from service of process an attorney at law while attending upon the court, and while going to and returning from the court to the county of his residence. | [
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] |
To compel payment over of certain school moneys.
Granted June 24, 1876. | [
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] |
To compel respondent to pay over to relators the amount of ■certain liquor taxes, collected from sundry liquor dealers, in certain territory which, at the time the tax became due and payable, belonged to the above named townships, but which had been afterwards, and before the collection of the tax, detached and attached to the City of Detroit.
Granted October 14, 1885. | [
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46
] |
To compel respondent to quash a writ of attachment issued after commencement of suit under Howell’s Sec. 8019, et seq., on the ground that the affidavit therefor was not filed with the clerk, but was attached to the writ.
Order to show cause denied October 28, 1891. | [
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To quash writs of garnishment, for the reason that the garnishee defendant is a corporation and neither in the affidavit nor in the writ is it described as such, nor is it described as a partnership, hence no garnishee defendant is named.
Order to show cause denied May 19, 1891. | [
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] |
To vacate an order directing the police department of the city of Detroit to take charge of the remnants of a boiler which had exploded, killing a number of persons, pending the trial of the engineer, against whom the grand jury had returned an indictment, charging him with manslaughter.
Granted December 24, 1895, without costs. | [
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] |
To compel respondent to apply surplus in his hands to the payment of death claims.
Order to show cause granted July 26, 1893. | [
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To compel tbe entry of a certain judgment on a verdict.
Denied June 18, 1879.
Eelator sued E. S. -and E. on.a partnership note of E. and S., payable to relator or order, upon tbe back of which E. bad written bis name. E. and S. were defaulted and reference was made to tbe clerk to assess damages against them. E. appeared, pleaded and went to trial. Tbe jury found for tbe plaintiff against F. and assessed the damages without including E. and S. After the discharge of the jury, plaintiff moved that the verdict be amended to show an assessment against all of the defendants,, and for judgment thereon. This was refused and plaintiff then moved for judgment against F. alone, on the ground that the action had become severed under the statute. This was also refused, and relator asks for a mandamus tó grant one application or the other.
Field, that relator would be entitled to judgment upon assessment against E. and S., and the verdict against F. taken together, and suggested that such judgment should recite that it was rendered upon such assessment and verdict. | [
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To compel the approval of liquor dealer’s bond.
Granted June 8, 1888. | [
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To compel the board to continue the use of certain text books.
Granted November 13, 1891, with costs.
Peremptory writ issued January 11, 1893. | [
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] |
To compel vacation of an order setting aside a judgment.
Granted April 19, 1893, with costs.
Case set for trial. Defendant, a non-resident. On the day set, defendant’s- counsel exhibited a telegram from his client stating his inability to be present. No formal motion for a continuance was made, and plaintiff took judgment December 15, 1892. Defendant applied for and was granted twenty days in which to move for a new trial, or sixty days, provided that defendant file a bond for costs within twenty days. The twenty days expix’ed and no motion was made, and no bond given. On February 11, 1893, costs were taxed and an execution issued. On March 8, 1893, a motion for vacation of judgment and a new trial was made and on March 15, 1893, same was granted.
Respondent returns, that at the time that judgment was ren dered, he “stated in substance that he should set aside the judgment on terms if application was made,” and counsel for respondent contends that it was understood. between counsel that -the judgment should be set aside on payment of costs. Relator’s counsel cited as to this point, Roche vs. Circuit Judge, 26 M., 370 (748). | [
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] |
To vacate an order quashing a complaint, under an ordinance providing that any person not a resident, who shall bring into the state any goods to be sold by auction, without any intention •of remaining permanently in the business, shall be deemed a transient trader and shall pay a license.
Denied July 2, 1895, with costs.
Ordinance held invalid as it applies only to non-residents. | [
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] |
To compel respondent to- pay the fees of the jurors of the Superior Court of Grand Rapids.
The court held the county- liable for such fees, and that under the Constitution it was competent to establish a Superior Court, but the court did not deem it necessary to issue the writ. April 13, 1877. | [
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To compel respondent to accept and file relator’s bond as a liquor dealer.
The circuit judge denied the writ. Affirmed July 2, 1895, with costs.
Relator contended that the proceedings, under the local option law of that county, are invalid. | [
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To compel respondent to allow the filing of exceptions to special findings.
Denied February 27, 1883.
The findings were filed in May, 1880. In April, 1882, leave was asked to file exceptions. Held, that relator had béen guilty of laches. | [
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] |
To compel respondent to allow to relator his statutory fees', for reporting mortgages to the assessing officers, under Act No. 262, Laws of 1887. It being claimed that Act No. 321, Local Acts of 1879, providing for the compensation of certain officers, of "Wayne County, covered such services.
Granted February 15, 1889. | [
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] |
To quash an information charging relator with perjury.
Order to show cause denied March 24, 1896.
Ruled by People vs. Thompson, 2. D. L. N., 966) 66 N. W., 478. No. 226. | [
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] |
To compel vacation of orders granting injunction and appointing a receiver with authority to pay debts, collect claims and continue the business.
Granted in part October 30, 1894.
The village had dealt with a co-partnership in relation to the location of its plant within the village, and the co-partners had afterwards formed a corporation and conveyed the assets to the corporation. | [
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To compel respondent to make return to an appeal attempted to be taken in a case determined in the Police Court of Detroit.
Denied October 17, 1890.
Held, that Sec. 23, of Act No. 161, Laws of 1885, as amended by Act. No. 287, Laws of 1887, limiting the right of appeal to cases where the sentence of imprisonment exceeds twenty days, or the fine imposed exceeds $25 is not unconstitutional. | [
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Mandamus is the proper remedy to enforce the payment by municipal corporations of an official salary, the amount of which is fixed. See Nos. 1390, 1407, 1411, 1499, 1523. | [
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] |
To compel respondent to grant a writ of assistance after sale upon chancery foreclosure.
Order to show cause issued November 19, 1895.
Bill filed October 27, 1893. Pro confesso entered for want of appearance. Order of reference for computation March 16, 1884. April 16, 1894, defendants paid, and complainant accepted, interest due to March 1, 1894. Nothing further was done until April 20, 1895, when, over one year’s interest having accrued, a new order of reference was obtained, amount due reported April 20, 1895, decree taken April 30. Sale made July ’2, 1895. Sale confirmed October 8, and petition for writ of assistance filed October 20. Defendants resisted on the ground that no notice was given them of the petition for the second order of reference. | [
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To compel respondent to set off an execution.
Granted, without costs, April 7, 1892. | [
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To compel respondent to deliver the files records and dockets belonging to his office, as a justice of the peace of the City of Grand Hapids, to another justice, as provided by Act No. 200, Laws of 1889.
Denied July 11, 1889.
Held, that tbe act referred to, which assumes to reduce the number of justices in said city to two and to legislate two of such officers out of office, is unconstitutional, the title failing to indicate any such object. | [
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To grant a new trial.
Order to show cause denied March 7, 1894, on the ground that the errors complained of are matters of record and relator’s remedy is by appeal. | [
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] |
To compel respondent to vacate an order allowing an appeal from Justice Court.
Granted June 18, 1891, with costs.
Relator, a resident of the State of Pennsylvania, recovered judgment October 29, 1890, against Annie Telelaar. In May, 1891, defendant moved the Circuit Court for leave to appeal. Notice of the motion was served upon relator in Pennsylvania, and endorsed thereupon was the following:- “I,............ hereby accept service of a copy of the within affidavit, order to show cause and notice of hearing for and in behalf of said company.
Relator insisted that the application or affidavit was not filed until the day of hearing, although it was presented to the circuit judge when the order to show cause was issued, citing Bank vs. Judge, 43 M., 296 (857); that the application for leave to appeal was. in the nature of an original proceeding, and that the notice or order to show cause must he treated, as to service, like process, citing McCaslin vs. Camp, 26 M., 390; that the acceptance of .service simply dispensed with proof of service, hut did not confer jurisdiction. Citing, U. S. vs. Loughey, 43 Fed. Rep., 449; Washington vs. Barnes, 41 Ga., 314; Penron vs. McKenzie, 18 N. E. (Ind.), 389. | [
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To compel respondent to set aside an order requiring relator to appear before him and submit to an examination concerning his property. The circuit judge denied the writ.
Affirmed February 12, 1895, with costs.
Judgment had been rendered in the Circuit. Court for the County of Kent against relator. Execution was issued thereon, and returned nulla bona. Plaintiff thereupon presented an affidavit for the examination of relator under oath, under How. Stat., Sec. 8107. | [
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To compel respondent to grant an order to stay waste in an action of ejectment.
Denied January 23, 1878.
Held, that an order to stay waste is discretionary and will not be compelled by mandamus, and if one wbo is entitled to sucb order does not seek it in an affirmative suit at law or in equity, he has no remedy for its refusal. | [
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] |
To compel the levy and assessment of certain school taxes.
The return set forth that respondent was ignorant as to the truth of certain material allegations in the petition, and that therefore he could neither admit nor deny the same. The relator, deeming such return unsatisfactory and evasive, moved for a further return, for the reason that no issue could be based on the return made, as it did not deny the facts averred.
Held, that a party could not be compelledsunder oath to admit or deny what he has no means of knowing with certainty.
An issue was framed and the case was sent down to the circuit for the trial of such issue.
Decided July 8, 1868. | [
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1,
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21,
5,
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18
] |
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