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To vacate so much of a judgment in favor of contestants, in a contest over the admission of a will to probate, as allows to proponents their actual expenses incurred in the trial in the Circuit and Supreme Courts.
Granted July 8, 1896, with, costs against proponents.
Held, that while under How. Stat. Sec. 6791, the court might in a meritorious case allow costs payable from the estate to either or both parties, it could do no more than award taxable costs.
Cheever vs. North, 64 N. W., 458. | [
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] |
To compel the Auditor General to assess the Michigan Central Railway Company under the general law.
Denied June 15, 1881.
Held, that said company is not a corporation formed under the general law and taxes are properly assessed against it upon ■the basis of the original special charter. | [
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To compel payment of a bill for services as assistant visitor of schools, at $3 per day, under Act No. 147, Laws of 1891.
Denied February 9, 1893, with costs, on the ground that the compensation had not been determined by the county commissioner, as required by Sec. 10 of said Act. | [
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To compel respondent to proceed and approve of the kind and pattern of poles to be used by relator.
Denied December 24, 1890, with costs, it appearing that respondent had voluntarily done what was asked. | [
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To compel respondent to approve of certain amendments to relator’s articles of association, enabling it to issue (1) whole life policies; (2) term policies; (3) advance payment policies, and (4) policies insuring joint lives.
Granted April 27, 1897, without costs.
The Attorney General contended that Act No. 187, of the Public Acts of 1887, as amended by Act No. 58, Laws of 1895, does not authorize the issue of either of the three last named classes. | [
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] |
To compel respondent to maintain his office at the city of Port Huron, to which place relator insisted that the county seat had Been removed.
Granted October 4, 1871. | [
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Case made from Wayne Circuit.
To compel respondent to allow an appeal from the final judgment of the Police Court to the Circuit Court for the County of Wayne, in a case for assault and battery, in which relator stood convicted in said court.
The circuit judge refused the writ and the Supreme Court being equally divided, the judgment below was affirmed, December 6, 1859. | [
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To vacate order quashing a writ of attachment because the copy served upon the defendant was not a certified copy.
Granted April 16, 1895, with costs against defendant.
Eelator cited Leonard vs. Woodward, 34 M., 515; Stearns vs. Taylor, 27 M., 88. | [
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] |
To compel respondent to issue a warrant to relator for services rendered as justice in criminal proceedings.
Granted June 10, 1858.
The answer set up that the warrant had been drawn and .■signed, but before it was delivered to relator it had been levied upon and being payable to relator or bearer, the constable had presented the same to the county treasurer and received payment thereon. As the respondent was a public body and appeared to have actád in good faith, costs were refused. | [
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To compel the transfer of a convict from the State Prison to the House of Correction and Reformatory at Ionia, under Act No. 118, Laws of 1893.
Granted March 19, 1895. | [
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To set aside an order qtiashing aii information, charging a druggist with the sale of liquor to be used as a beverage, and to proceed to the trial of the accused.
Granted April 25, 1888.
The circuit judge quashed the information upon the ground that by Robison vs. Miner, 68 M., 549, Sec. 3 of the Act under which the information must be considered as based, had been declared unconstitutional. | [
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To compel respondent to set aside an order for allowance to a widow, on the ground that no legal notice was given to the administrator of the application, and that the amount of the allowance was an abuse of discretion. The circuit judge denied the writ.
Affirmed May 4, 1894, with costs.
It appeared that no written notice was given, but that the administrator, in response to an oral notice of the application, appeared and furnished the information upon which the order was based.
Held, that there is no statute requiring written notice to be given, and that the court acquired jurisdiction by the appearance of the administrator. Held, further, that it did not appear that there was any abuse of discretion in making the allowance. Freeman vs. Probate Judge, 79 M., 390 (409); North vs. Probate Judge, 84 M., 69; In re Power Estate, 92 M., 106; Pulling vs. Probate Judge, 88 M., 387 (412). | [
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To compel respondent to file a copy of a resolution extending the term of relator’s corporate existence.
Granted February 17, 1892. | [
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] |
To compel respondent to draw his warrant on the proper fund for the one-twentieth of a mill tax, under the Law of 18 6 Y, it being claimed by respondent that under the proper construction of the law of 1869, which made an appropriation for the University, the board were not entitled to the proceeds of the tax claimed.
Granted July 7, 1869. | [
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To compel respondent to ratify and confirm a contract for paving.
Denied April 8, 1892, with costs.
In this cause an amended answer was filed. Issues were framed, settled and sent to the Wayne Circuit for trial. After trial a hill of exceptions was settled, filed and case noticed for argument. | [
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To compel respondent to vacate an order staying proceedings,,, and to proceed to judgment.
Order to show cause denied May 5, 1891.
An administratrix brought suit against the city of Monroe for negligent injury, resulting in death to her intestate. Pending same, she applied to the Probate Court and was discharged. One of the heirs appealed from the order of discharge. Defendant pleaded the discharge in abatement, and, on the hearing thereof, an order was entered staying proceedings until a new administrator was appointed, and the disability removed. | [
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To vacate an order quashing garnishment proceedings instituted by a defendant upon a judgment obtained by him against a plaintiff.
Granted March 11, 1896, with costs against the garnishee defendant. | [
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] |
Long, C. J.
This, action was commenced in justice’s court in Menominee county, and judgment was rendered in favor of the plaintiff for $22.50 damages, and $10 costs of suit. The action was commenced by writ of attachment under the log-lien law. After judgment, defendant Spies, log owner, took a general and special appeal to the circuit court, where the judgment was reversed, and the case comes to this court by writ of error. It appears by the officer’s return to the writ of attachment that he served the writ upon the defendant log owner on April 1, 1896, and the judgment was rendered before the justice on the next day. Only a part of the property described in the writ was taken in custody by the officer. There is no showing that the officer made any search or inquiry to find the owner of the property, although the writ states that Mr. Spies was the owner. The log owner did not appear before the justice, and now contends that he had no sufficient notice, and that, therefore, the justice had no jurisdiction to render judgment against him. This was undoubtedly the view taken by the court below in reversing the judgment. The case is governed by Noyes v. Hillier, 65 Mich. 636, and White v. Prior, 88 Mich. 647.
The court below was not in error in reversing the judgment, and the case will stand affirmed.
The other Justices concurred. | [
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To set aside default entered for want of replication to a notice of matter of defense, filed under Circuit Court Rule No. 106.
Granted March 9, 1892, with costs. | [
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To compel the township treasurer to pay over to relator, treasurer of the board of school inspectors, township library moneys.
Granted July 22, 1874.
Held, that relator was the proper custodian of these moneys, and that respondent was not entitled to withhold them until drawn out by the inspectors as needed for specific appropriations, and that the refusal of payment of the order, though it was slightly in excess of the moneys in his hands, was a sufficient ground for this application, inasmuch as respondent made no offer to pay what he had, but refused, on an entirely different ground, to pay anything. | [
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] |
To vacate order restraining proceedings in the Superior Court of Detroit.
Granted February 8, 1884.
Relator had recovered judgment in the Superior Court. A new trial had been denied therein. Defendant then filed a bill in the Wayne Circuit, alleging misconduct of the jury in the principal suit, and praying for the cancellation of the judgment. | [
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To compel allowance of plea in abatement.
Denied April 22, 1892, with costs.
In an action of assumpsit in which relator was defendant, he •demanded a bill of particulars. A paper purporting to be such was served. Defendant regarding the bill as insufficient, failed to plead and his default was entered and made absolute. Defendant afterwards filed a plea in abatement, adding a plea of the general issue with notice of the-statute of limitations. Subsequently defendant moved to set aside the default.
The court granted the motion, allowed defendant’s plea of the general issue to stand, but refused to allow the plea in abatement. | [
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] |
To compel respondent to receive certain interest and the amount of the penalty upon a State Building Land certificate, and refrain from selling the land for unpaid taxes.
Denied November 18, 1891, without costs.
Respondent insisted that relator did not pay the interest due March 1, 1891, within the time allowed by law; that her right was thereby forfeited; that thereupon she could not redeem, except upon paying interest, penalty and taxes under How.’s, Sec. 5281, and that he had a legal right to refuse to receive the interest and penalty, or to renew the certificate until the taxes were paid. | [
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To vacate an order extending the time for settling a case, where the proofs were taken in open court and the application was not made until after sixty days from the date of the decree, and the time allowed does not exceed the statutory period of three months.
Denied October 27, 1880. | [
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] |
Montgomery, J.
This is an appeal from a decree of the circuit court for the county of Benzie, in chancery. The complainants, in their bill, allege that the Crane Manufacturing Company is the owner of the following real estate and personal property, to wit: “All of block 24, and lot 3 and the south of lot 4 of block 18, of the village of Frankfort City, according to the recorded plat thereof, in the county of Benzie and State of Michigan; * * * dry kiln, planing machines, matching machines, blowers, shafting, gearing, belting, hangers, pulleys, engines, boilers, pumps, drying apparatus, purchased from the B. F. Sturtevant Company; two planers purchased from the S. A. Wood Machine Company,-—-all of said personal property being situate in the township of Gilmore, Benzie county, Michigan;” that the last-named property, namely, the dry kiln, planing machines, etc., is personal property; that, on the 8th of June, 1893, the Crane Manufacturing Company gave to the defendant bank a pretended mortgage of $10,000, which was recorded on the 6th of July, 1893, and which, it appears by the proofs, covered all of the property described. The bill further alleges that on the same date a pretended chattel mortgage upon the property which is above described as personal property was given by the Crane Manufacturing Company to the defendant bank in the same sum. The bill proceeds to-allege that complainants were creditors of the Crane Manufacturing Company, and that this chattel mortgage was not recorded until the 20th of December, 1893. The bill further alleges that goods were sold by the complainants to the Crane Manufacturing Company from the month of May to October, 1893; that on the 12th of December, 1893, complainants accepted a note of the Crane Manufacturing Company, in payment of their claim against them for these goods, and that at the time they accepted said note they had no knowledge of the existence of the chattel mortgage executed by the Crane Manufacturing Company, but that the same was placed on record eight days later. The bill further alleges that judgment was obtained by complainants upon this note on the 13th of July, 1894; that execution issued, returnable on the 14th of August, 1894; and that on the 15th of August, 1894, a return to the execution was made by the sheriff, in the following form:
“State of Michigan, ) County of Benzie, ss.
“By virtue of the annexed writ to me directed, I have levied upon the following real estate belonging to the said defendant, viz.: All of block 24, and lot 3 and south ½ of lot 4, block 18, of the village of Frankfort City, Benzie county, Michigan. I further return that I have not sold the same, because it is incumbered by a pretended real-estate mortgage of $10,000, given by said defendant to the Ann Arbor Savings Bank, of Ann Arbor, Michigan.
“I further return that, by virtue of the annexed writ, I have levied upon the following personal property belonging to said defendant, viz.: Dry kiln, planing machines, matching machines, blowers, shafting, gearing, belting, hangers, pulleys, engines, boilers, pumps, drying apparatus, purchased from the B. F. Sturtevant Company; two planers, purchased from the S.. A. Wood Machine Company,—all of which personal property is situate in the township of Gilmore, Benzie county, Michigan. I further return that I have not sold the same, because it is incumbered by a pretended chattel mortgage of $10,000, given by said defendant to the Ann Arbor Savings Bank, of Ann Arbor, Michigan.
“Therefore I cannot have the money before the said circuit court for the county of Benzie at the day in said writ contained, as therein I am commanded.
“Dated this 14th day of August, 1894.
“The answer of John L. Chandler, Sheriff.”
It is then alleged that the defendant bank has noticed foreclosure proceedings on its real-estate mortgage, and the bill prays an injunction to restrain this proceeding on the part of the bank, and that both the real-estate and chattel mortgages be set aside, and that complainants be authorized to proceed under their writ of fieri facias upon said judgment.
In the answer and by the proofs it appears that the Crane Manufacturing Company executed the two mortgages in question simultaneously, as security for a loan of $10,000’; that the fixtures were named in both mortgages ; that they, as well as the real estate, belonged to the Crane Manufacturing Company; that they had been attached permanently to the premises, and were intended to be used with the premises. It also appears that the chattel mortgage was given to cover any contingency as to the character of the machinery being real estate or not.
It is contended by the defendant bank that the complainants do not make a case by their bill. The answer prays the benefit of a demurrer. The complainants, on the other hand, contend that the answer of the defendant does not assert that the property described in the chattel mortgage was a part of the real estate. It does not appear whether these points in regard to the pleadings were made in the trial court, but it does appear that the circuit judge determined the question involved on the merits, and we prefer to take the same course here, inasmuch as the conclusions we have reached accord with those of the circuit judge. Technically, the complainants’ bill is imperfect. It will be noticed that the return of the officer placed the writ beyond his control, and the better rule would appear to be that this terminated the lien of the levy which had been made. See 1 Freem. Ex’ns, § 202, and the cases cited. Our statute does not contemplate the return of an execution after levy, and the issue of another writ directing sale. On the other hand, where the officer is unable to complete the service before the return day, the statute provides that he may proceed thereafter under the same writ. 2 How. Stat. § 7696. It follows, then, that the complainants have not brought themselves under the rule authorizing a bill in aid of execution, as a levy should precede the filing'of such a bill. Nor have they, on the other hand, averred the return of an execution unsatisfied for want of property upon which to make a levy, as it does not appear by the return but that the Crane Manufacturing Company had other property upon which a levy might have been made.. The bill was therefore defective. 2 How. Stat. § 6614. This being the case, the complainants are not in position to complain of the imperfect pleading on the part of the defense, not amounting to an estoppel.
On the merits of the case, we are satisfied that this property was real property, and covered by the real-estate mortgage. See Smith v. Blake, 96 Mich. 542; Jones v. Chair Co., 38 Mich. 92. It is undoubtedly true that the question of whether the parties intended that these fixtures should be permanently annexed to the realty is a question of fact, and that the giving of a chattel mortgage, standing by itself, is some evidence of an intent that they should not be permanently annexed. See Manwaring v. Jenison, 61 Mich. 117; Corcoran v. Webster, 50 Wis. 125; Burrill v. Lumber Co., 65 Mich. 571, 575. But, on the other hand, it is not conclusive evidence of such intention, for, if the giving of the security upon the property in the one character or the other might be treated as evidence of the intention, it might with equal force be urged that the giving of the real-estate mortgage gave the property the character of realty; and we have recently held that the giving of a chattel mortgage concurrently with a real-estate mortgage, as in this case, for the purpose of insuring against a possible contingency, does not conclusively fix its character as personal property. See Miles v. McNaughton, 111 Mich. 350.
Having reached the conclusion that this property was fully covered by the real-estate mortgage, and it appearing that the mortgage was recorded on the 6th of July, 1893, and long before the complainants extended the time for the payment of their claim, it follows that the defendant bank was entitled to foreclose this mortgage, and that, even had the complainants acquired a lien upon the property, they would not be in position to complain. ' The decree of the court below determined that the defendant’s mortgage upon the real estate covered these fixtures, and that decree is affirmed.
The other Justices concurred. | [
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] |
To compel respondent to proceed at once to set off to relator, a widow, her statutory allowance.
Granted October 27, 1876.
Delator having filed her application, the probate judge denied the same. On appeal his action was reversed. When the order of the Circuit Court was certified to the probate judge it became the duty of that officer to proceed at once, when applied to, to make the allowance. The reason assigned for his not doing so is, that a motion had been made in the Circuit Court to set aside its order.
Held, that this motion did not amount to a stay of proceedings. | [
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To compel respondent to settle a bill of exceptions, in a case tried by the court without a jury, the settlement being resisted (1) upon the ground that the bill had not been prepared within the twenty days, which the court had first allowed, but after that time had expired the. court made another order extending the time, and (2) because no written finding had been requested.
Granted December 2, 1862. | [
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Montgomery, J.
The respondent was convicted of the offense of keeping a house of ill fame. The record contains 49 assignments of error. Not all of them are discussed in the brief of counsel, and we shall still further limit the discussion in this opinion to such questions as may have some possible interest to the profession. It was urged that there was not sufficient evidence to justify a verdict. It will suffice to say that we think the evidence was not only abundant, but overwhelmingly convincing. It was, however, of a character which would render it improper to set it out at length in this opinion. An examination of all the exceptions to testimony satisfies us that no error was committed in this regard.
Error is assigned on the refusal to give respondent’s fifth request, which reads as follows:
“Upon the trial of a criminal case, if a reasonable doubt of any of the facts necessary to convict the accused is raised in the minds of the jury by the evidence itself, or by the ingenuity of counsel upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner’s acquittal. ”
This request was properly refused. The jury should not be instructed to regard the ingenuity of counsel as equivalent to evidence. The.court did charge the jury upon this subject as follows:
“But, in cases of circumstantial evidence, each circumstance necessary to constitute a chain of evidence of guilt should, to justify conviction, be established by proof beyond a reasonable doubt; and, if you can reconcile the circumstances in evidence on any other theory than that of guilt on the part of respondent, your duty would be to acquit.”
This sufficiently covered the ground.
Error is also assigned on the refusal to give the thirteenth of respondent’s requests, which reads as follows:
“If it is shown that the respondent and her associates have always, when on the streets and about where they went, always been good-behaved, you should take that into consideration as to their chastity, as, if they were unchaste, they would be apt to demonstrate acts of rudeness, or, in some way, throw out inducements for persons.”
We think this was also properly refused. To have given the instruction would have been to usurp the functions of the jury. The court can hardly know judicially the facts assumed by the proposed instruction.
Complaint is made of an instruction as follows: ’
“However bad she may be, or however guilty of other offenses, the question for you to determine here is whether she is guilty of the offense charged, and has that guilt been shown beyond a reasonable doubt ? ”
There was no error in this instruction. It had crept out in the testimony that respondent had been charged with selling liquor without a license, and testimony affecting • her character for chastity had been given. This instruction was in her interest, and to ward against the jury giving undue weight to those items of testimony which tended to show her guilty of other offenses.
The court said to the jury that the questions for their determination were cold, plain questions of fact. Counsel criticise this instruction as follows:
"The court could have said to the jury, ‘ The questions for you to decide are questions of fact;' but when he says. ‘So really the questions for you to determine are cold, plain questions of fact,’ emphasizing the adjectives ‘cold’ and ‘plain,’ he erroneously hardened the hearts of the jury, and they doubtless thought from this she was bad, and to be found guilty upon general principles, and not entitled to common consideration.”
We are unable to see how this deduction is made, and we think the instruction not open to the criticism.
The other questions raised do not require discussion.
Conviction affirmed.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts). 1. It is well settled in this State that a taxpayer in the situation of the complainant is entitled to maintain a suit to restrain the illegal action of a municipality in the expenditure of money. Curtenius v. Hoyt, 37 Mich. 583; Callam v. City of Saginaw, 50 Mich. 7; Putnam v. City of Grand Rapids, 58 Mich. 416.
2. Complainant was not estopped from contesting this action of the council under the rule laid down in Lundbom v. City of Manistee, 93 Mich. 170. The election at which the proposition to raise money for the construction of waterworks was defeated, was held June 8, 1896. The action of the common council to proceed in defiance of this vote was taken June 15th of the same year. Complainant filed her bill on July 2d following. The estoppel is claimed to exist by reason of the action of the council in erecting an engine house, etc., in 1895. The answer to this claim is that there is no proof that complainant knew that the council was illegally expending money for that purpose; but, even if she had such knowledge, this would not estop her to restrain subsequent illegal action for the same purpose.
3. Section 4, chap. 11, Act No. 3, Pub. Acts 1895, prohibits any village to borrow, appropriate, raise, or expend any money for the purchase or construction of waterworks, unless such action be authorized by a vote of two-thirds of the electors of the village voting at the election. Defendants seek to maintain their action under section 1, chap. 8, and sections 1-3, chap. 10. The title of chapter 8 is, “Improvements and Assessments.” Section 1 provides that the cost and expense of improvements, including, buildings, engine houses, waterworks, etc., shall be paid from the proper general funds of the village. This, of course, means that such expenditures must be authorized by law, and that the council can expend moneys therefor only when so authorized. The title to chapter 10 is, “Fires and Fire Department.” This chapter authorizes the council to “purchase and provide suitable fire engines and apparatus for the ex-tinquishment of fires, and to sink wells and construct cisterns and reservoirs in -the streets, public grounds, and other suitable places, and to make all necessary provisions for a convenient supply of water for the use of the department.” This chapter does not contemplate that, under the guise of furnishing fire protection, the council may construct waterworks designed both for fire protection and to furnish the inhabitants with water. Such construction would practically nullify chapter 11. The council illegally used $800 of the highway fund for these waterworks in 1895, and it appears from the evidence that in order to pay for the proposed extension it would be compelled again to use that fund.
The decree was right, and is affirmed, with costs.
The other Justices concurred. | [
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To compel payment over to relator of certain fines and costs,, collected in the Police Court for violation of the city ordinances.
The circuit judge granted the writ as to the costs. Affirmed March 3, 1896, with costs.
A written opinion was filed by the circuit judge which is as follows:
Lillibridge, Circuit Judge-. This is an application for a writ of mandamus to compel the respondents to pay to the City of Detroit the sum of four thousand, four hundred and sixteen dollars ($4,416) for fines, and nine thousand, five hundred and forty-five and 51-100 dollars ($9,545.51) for costs collected in the Police Court of the City of Detroit for violation of the city ordinances since July 5th, 1892.
The law requires the clerk of the Police Court to pay to the county treasurer all fines and costs collected in said court for violation of the general state laws, and also to pay to the city treasurer of Detroit all fines and costs collected for violation of the city ordinances.
The statute (Howell’s, Sec. 5146) ■ also provides that the county treasurer, on or before the first day of June in each year, shall apportion and distribute the amount of the fines-so received by him among the several townships of the county for the support and maintenance' of free public libraries. The statute makes no provision for the distribution of the costs received by the county treasurer; but they are permitted to be used for the general expense of the county.
Acting under the law, above referred to-, the clerk of the Police Court of Detroit has, from day to day since July 5th, 1892, paid to the county treasurer of this county various sums of money, as the proceeds of fines and costs, to which the said -county treasurer was entitled under the law above referred to, and the said county treasurer, acting in pursuance of the statute above referred to, has each year, before the 1st of June, apportioned and distributed the amount of all said fines among the various townships for the support and maintenance of free public libraries.
Now, however, it is discovered that the clerk of the Police Court has all the time paid to the county treasurer not only the fines and costs collected for violation of the general state laws; but along with them has also paid the fines and costs received for violation of the city ordinances, to which the city treasurer was of right entitled, and that the county treasurer has apportioned and distributed all of the fines so received among the various townships and libraries, and has none of it on hand at the present time.
In other words, by a mistake the clerk of the Police Court has paid to the county treasurer, since July, 1892, as moneys to which he was ■entitled under the law referred to, fines and costs collected for violation ■of city ordinances, which should have been paid to the city treasurer, and the county treasurer has distributed it, and the question is whether the respondent can now be required to repay the amount so received to the city treasurer.
It is not claimed that the county treasurer has any knowledge, or information, that any portion of the funds so received were collected for violation of city ordinances; hut on the contrary he received them in perfect good faith and distributed them as, by law, he was required to do.
The general rule is that money paid under a mistake of material facts may be recovered back, although there was negligence on the part of the person making the payment; but this rule is subject to the qualification, that the payment cannot be recalled when the situation of the party receiving the money has been changed in consequence of the payment; and it would he inequitable to allow a recovery. The person making the payment must in that case bear the loss occasioned by his own negligence. Walker vs. Conant, 65 M., 194; Walker vs. Conant, 69 M., 321; Mayer vs. Mayer, etc., 63 N. Y., 457; Union Bank vs. Sixth Nat’l Bank, 43 N. Y., 453.
The mere fact that the person receiving the money has paid it out or used it, when he received a benefit from it does not excuse a re-payment. Byles vs. Golden Township, 52 M., 614; Decatur vs. Township Board of Decatur, 33 M., 335.
But if the position of the person receiving the money has be.en -changed, without fault on his part, either, as to a part or the whole of the fund, so that it would be inequitable to allow a recovery, in that case Te-payment will not be required. Byles vs. Golden Township, 52 M., 614.
Applying these rules to this case, if the respondent still had these moneys on hand, or even having paid them out had it received some benefit from them, as by paying general expenses of the county or for •any other purpose from which the county received benefit, then undoubtedly the relator would be entitled to recover; but the fact is undisputed as to the fines they have all been apportioned and distributed as the law directs and the respondent has received no benefit from them. They were, in no sense, funds belonging to the County of Wayne and the county treasurer had no interest in them. He was, under the law, a mere channel or conduit for receiving the fines and* distributing them without retaining one dollar. It was a mere naked trust to receive the moneys and distribute them.
It is impossible that the- respondent could recover back the various amounts from the several townships and school districts which have received and expended them. It is clear, therefore, that as to the fines, considered apart from the costs, the situation of the. respondent has been materially and essentially changed in consequence of the payment, and without fault on his part, and if'it be now compelled to repay the amount it will be without redress.
It is a rule of equity and common sense- that when one or two persons must bear a loss he, through whose fault or negligence the loss occurred, must suffer the loss, in the absence of fault or neglect on the part of the other person.
It was contended by counsel for relator that the act of the clerk in paying the money to the county treasurer was unauthorized and illegal and that the relator cannot be bound by the unauthorized and illegal act of one of its officers. Whether this be true or not as an abstract principle of estoppel I do not think the rule applies to this case.
It is, nevertheless, time that the municipality, like any other litigant, must pursue its remedy subject to any equities which may have arisen in behalf of the respondent subsequent to the payment of the money and before the commencement of its suit to recover and where, as in this case, before the beginning of its action to recover, the situation of the respondent has been changed, without fault on its part, by the distribution of the fund, it is only the application of familiar principles of equity to hold the relator not entitled to recover.
Any other rule would make the county treasurer a guarantor for the correctness of the acts of all subordinate officials who pay money to him, and that without limit as to time. It would never be safe for him to divide or distribute funds as required by law lest he should at some time thereafter be called upon to re-pay on account of a mistake of some-subordinate official.
As to the costs received, amounting to nine thousand, five hundred and forty-five dollars and fifty-one cents ($9,545.51), the case stands differently. The statute makes no provision for the distribution of the amount received from costs; but allows it to remain in the possession of the county treasurer to be used for the general purposes of the county. The county treasurer, therefore, has this $9,545.51 on hand, or he has used it for the general expenses of the county. If it has been paid out it has been used in payment of- general expenses for which other moneys would have been paid had these costs not been received. The respondent has had the benefit of it, whereas as to the amount of the fines, as above shown, the respondent has received no benefit whatever.
As to the costs, therefore, the case comes clearly within the rules above quoted. The respondent’s position has not been changed to its disadvantage by the payment of the money and it is right and equitable that it should be required to re-pay.
The writ will, therefore, be granted directing the respondent to re-pay $9,545.51, received for costs. | [
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Grant, J.
(after stating the facts). 1. The first error assigned is the refusal of the court to give the following request:
“If you find from the evidence in this case that the car and cable were in reasonably safe and proper condition for use, and that it was the negligence of the engineer, Marshall, in not seeing that the cable was attached to the car before he shoved it down the incline, plaintiff cannot recover.”
Nowhere in his instructions did the learned circuit judge refer to the theory of the defendant. He did charge that the engineer was a fellow-servant, and that for his negligence there could be no recovery. It was, however, of importance that the judge should state to the jury the theory of the defendant, especially in view of the fact that he fully stated the claim of the plaintiff. Poole v. Railway Co., 100 Mich. 388, where authorities are cited.
2. The following requests were preferred on behalf of the defendant, and refused:
“There is no evidence in this case that the defendant had any reason to suppose the cable was not in reasonably safe condition for the use it was intended, up to the time of the accident. The verdict of the jury must therefore be for the defendant.
“There is no evidence that the defendant had or is chargeable with notice of the defect in the cable claimed by plaintiff to have caused the accident.
“There is no evidence that the cable was not reasonably safe for the work it was intended, and the jury cannot be permitted to draw any inference of defect or negligence in the defendant from the pulling out of the hook, alone.
“The pulling out of the hook in the manner claimed by the plaintiff is not of itself sufficient to charge the defendant with negligence in this case.
“There is no evidence that the defendant had any notice of a defect in the cable, or that it was not in as good and safe condition as it was the day before, when the evidence shows it pulled the car up the incline, heavily laden, without breaking; and the plaintiff is not entitled to recover.”
In view of these requests, and the instruction of the court, it is important to fully state the testimony which it is claimed tends to sustain the charge of negligence. It is not claimed that the cable or hook was faulty in construction, or otherwise, or that they had been in use for such length of time as to require examination or replacement. Nor is there any evidence that they had become so worn that an inspection should have condemned them as unfit for use. Plaintiff, who hooked and unhooked them many times every day, does not testify that he saw any signs of wearing or weakness or unfitness for use. Thirty loads of iron and coal had been drawn up the day before, the last weighing 800 pounds. Plaintiff, on his direct examination, testified, “The rope broke, and they did not get on the brake in time, and the car came down fast.” This is all he said about the cause of the accident. On his re-direct and re-cross examination he testified that the loop on the cable was the one that broke, and that the engineer showed him the broken part in the engine room, where he was taken after the accident. He finally testified that he did not see the break himself, but that the engineer told him. All his testimony upon this point was therefore stricken out as hearsay. The only other testimony upon this point was that of Charles Licht, who was employed in the cupola at the time of the accident. We give the following excerpts from his testimony:
“I went up on top the cupola, where the rope was. I saw the end of the rope. It is a -wire rope.
“Q. Just tell the jury how the wire rope was drawn out,—how it pulled out.
“Mr. Keena: There is no evidence that it pulled out. It is leading.
“The Court: State how it appeared.
“Q. Tell how it looked,—how it appeared.
“A. How the rope broke ?
“Q. How the x’ope broke.
“Mr. Keena: There is no evidence that the rope broke.
“A. The carriage came down,—the bucket that they hoist pig iron on. They shoved the carriage down, and the rope stayed upstairs.
‘ Mr. Keena: Who shoved the carriage down ?
“A. I didn’t see the man shove it down.
“Q. (By Mr. Moore). What did you see on the loop? What did the end of the rope look like ?
“A. It was wore out. It was not wore out, but it was pulled out.
‘ ‘ Q. And the ring ?
“A. And the ring stayed in the carriage.
“Q. It was worn out—
“Mr. Keena: Hold on. There are other ways of asking questions of witnesses.
“The Court: Ask him what he saw.
“Q. How much of it was broken? What part was broken of the end of the wire rope? You say it pulled out. How did it pull out ? (Objected to.)
“The Court: That is improper.
“Q. You say it pulled out. Will you just explain how it pulled out ?
“A. It pulled out. It was not wore, I guess, but it pulled out. It was wore through. Not woi’e through, but it broke. * * * •
“Q. What was the appearance of the wire rope, as to being rusty or bright?
“A. It was a little rusty, that it wore through. It didn’t wear through, but it pulled out.”
The end of the cable was near the top of the incline. On cross-examination, counsel for the defendant attempted to elicit from the witness whether a portion of the end of the cable forming the loop separated from the cable, but failed in doing so. The principal fact testified to by him was that the loop was pulled out.
The above comprises all the testimony from which negligence can be inferred. It is unnecessary to cite authorities to show that this accident, even if the rope broke, was not of itself sufficient evidence of negligence. The duty of the defendant towards its employés was fully performed when it had provided a cable reasonably safe for the purpose for which it was intended. The law imposed no duty upon it to provide a cable which would stand the unusual strain placed upon it through the negligence of one of its employés, who was a fellow-servant with the plaintiff. If the proximate cause of the accident was the negligence of the engineer in unhooking the cable from the car, or in sending it down the incline with a slack cable and an unset brake, the plaintiff cannot recover. There is no testimony in the case to show the weight of this car, or the strength of cable required to withstand the force upon it caused by a sudden drop of the car down the incline. The cable may have been of ample strength .to pull loaded cars up and to let empty cars down in the usual manner. There is no evidence that it was not sufficient for that purpose. In fact, it had proved sufficient for that purpose. The sudden descent of the car thi’ough the negligence of an employé was an accident which the defendant could not foresee, and against which it was not required to provide. There is no evidence that the cable was cracked or rotten. The fact that witness Licht saw a “little rust” upon it is no evidence of an unsafe condition. Rust will form on iron in a single night. The record is barren of any evidence tending to show that a cable entirely safe for ordinary use would not pull out or break by the sudden strain to which it was subjected by the negligence of the engineer. There is also no evidence that the “pressure or jerk” was “slight,” as alleged in the declaration. Piette v. Brewing Co., 91 Mich. 609. It follows that, under this record, the court should have given the above requests.
Judgment reversed and new trial ordered.
The other Justices concurred. | [
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Hooker, J.
The principal legal question in this case is whether a married- woman’s note is supported by a sufficient consideration to make it binding upon her separate property where it is given for the surrender of, and to prevent the payee from attempting to collect, a note of the same amount against the husband, by attacking the validity of the transfer by said husband to the wife of all his property, including a farm worth about $8,000, upon the claim that such transfer was voluntary and in fraud of his creditors. Many decisions of this court support the proposition that the executory contract of a married woman is not binding upon her, unless made upon a consideration involving or relating to her separate estate. As to this she may contract, even to the extent of giving a mortgage for her husband’s debt. The record shows that the defendant had title, by deed from her husband, to valuable property. This deed was given at a time when the plaintiff held a promissory note against him. It is asserted that the husband, at the time of giving these deeds, conveyed to the defendant all of his property subject to execution. If, as contended, this was a voluntary conveyance, such property (although defendant’s separate property, under a deed valid as against the husband) was subject to the plaintiff’s claim in a court of equity. And this is true if the consideration was nominal, or so grossly inadequate as to warrant the conclusion that the conveyance was fraudulent as against creditors. If, under these circumstances, and to relieve herself from an attack upon the property conveyed, she saw fit to promise to pay the husband’s debt, to relieve what had become her separate property from liability, it was a contract in relation to her own property, and valid.
It is said that the evidence does not show that this was the situation, but clearly shows the contrary. The plaintiff produced testimony tending to show that he learned that the defendant’s husband had conveyed all of his property to his wife, and deeds of premises said to be worth $8,000 were introduced. Plaintiff at once charged defendant and her husband with this, and threatened (in substance) to attack the transfer; and the defendant asked that he would not distress her, and said that, if he would not, she would pay the debt. Thereupon a new note was given by her and her husband. This was about 19 years ago, and the debt has been kept alive by renewals, and the defendant has been undisturbed in her claim to the property. No testimony was offered by the defendant. Her husband was called as a witness for the plaintiff, and admitted the conveyance of his real and personal property to his wife, the latter upon an alleged consideration of $200. He stated that she paid some consideration for the land, but what does not appear. We think this raised a question for the jury, who should have been permitted to determine whether the note was given to prevent a threatened attack upon her separate property.
The offered admissions of the husband, not being-brought home to the defendant, were properly excluded. See Wright v. Towle, 67 Mich. 255.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Moore, J.
March 20, 1890, the plaintiff made a contract with defendant Rogers to sell him “all the lager beer he may need, in car lots, at five dollars per barrel, delivered on board the cars at the city of Toledo, at the rate and price of five dollars per barrel.” Rogers, on his part, agreed to use his best endeavors to market the beer, ‘ ‘ and that he will pay for the beer so delivered, in car lots, by remittance or honoring and paying drafts drawn on him therefor, in such manner that he * * * shall not be indebted to said Grasser & Brand Brewing Company at any one time for more than the price of one lot or shipment; that is to say, that, upon making any order for beer, he will remit or honor and pay the sight draft drawn on him to the full amount of all indebtedness then existing.” Defendant Doherty became surety for the performance of the contract on the part of Rogers, limiting the amount for which he would be liable to $1,000. Two days after this contract was made, one car load of beer, consisting of 250 quarter-barrels, was shipped to Rogers. This was the only car-load lot shipped. Other beer was shipped to Rogers in smaller quantities than car-load lots, as ordered by him. The value of all the beer shipped him was $910.50. He made remittances,' which were credited upon his account, amounting to $517.14, leaving a balance due to plaintiff from Rogers of $393.36, for which amount this suit was brought. It was shown that, if beer was shipped in smaller quantities than car-load lots, the freight was proportionately much higher. Defendant Doherty claimed that he was liable only for the beer sold in car-load lots, and that, as the remittances would more than pay for the car load that was shipped, he was not liable. The judge sustained the defendant in both positions. Plaintiff appeals.
There are but two questions involved:
First. Was Doherty liable for any of the beer except that which was sold in car-load lots ? He had a right to choose the terms of the agreement into which he entered. His agreement was in relation to sales which were made in and to be paid for in car-load lots, and in no other quantities. A surety can insist that he will not be bound except upon his own terms, and his obligation cannot fairly be extended beyond the scope of his written agreement, as, under the statute of frauds, his agreement must be in writing. Johnston v. Township of Kimball, 39 Mich. 187 (33 Am. Rep. 372); Bullock v. Taylor, 39 Mich. 137 (33 Am. Rep. 356); Locke v. McVean, 33 Mich. 473; Michie v. Ellair, 60 Mich. 73; Ferguson v. Davis, 65 Mich. 677; Fay & Co. v. Jenks & Co., 93 Mich. 130.
The other question is: Did the court err with reference to the application of payments ? The contract provided that payment should be made for one lot of beer before another was sent. Payments were in fact made more than sufficient to pay for the car load which was sent. The car load of beer was the first beer sent. In Chapman v. Com., 25 Grat. 721, the rule is stated as follows:
“A payment by a debtor who owes several debts to a creditor is to be applied to one or the other of the debts, as follows:
“First. The debtor may direct the application at or before the time of making such payment; (and such direction may be given expressly or by implication.
‘ ‘ Second. If the debtor gives no such direction, then the creditor may make the application according to his plea'sure, and he may make it either at the time of such payment, or afterwards, before the commencement of any controversy on the subject; but, the application being once made, it cannot be changed without the consent of all the parties.
“Third. Such application by a creditor may also be made either expressly or by implication. If he enters the debits and credits in a general -account, as they occur, this will be considered, in the absence of evidence to the contrary, as a general application of the credits to the debits in the order of time in which the debits occur, thus paying first the debt first due.
“Fourth. If neither the debtor nor the creditor makes the application, then the law will make it according to the circumstances of each particular case; and, if there be no other controlling circumstance, the application will be made according to the order of time, paying first the oldest debt.”
We do not think the court erred in his disposition of the case.
Judgment is affirmed.
The other Justices concurred. | [
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Hooker, J.
Hon. Hazen S. Pingree was elected mayor of the city of Detroit, and while an incumbent of that office was elected to, accepted, and entered upon the execution of the duties of the office of governor. He continues to perform the functions of both, and the petition in this proceeding proceeds upon the theory that, by accepting the latter office, that of mayor has become vacant, and a writ of mandamus is asked commanding the respondent to call an election to fill such vacancy. Two theories are presented under which it is contended that Mr. Pingree cannot hold these two offices at one and the same time:
1. That he is prohibited by section 15 of article 5 of the Constitution, which says: “No member of Congress, nor any person holding office under the United States or this State, shall execute the office of governor.”
2. That the two offices are incompatible under the rules of the common law.
Many cases have arisen upon similar provisions of the various constitutions, and, while the decisions are not altogether uniform, we shall find them in substantial harmony upon two propositions, viz.: First, that an officer of a city, whose duties are simply and purely municipal, and who has no function pertaining to State affairs, does not come within the constitutional description of officers holding office under the State; and, second, where officers in cities are appointed or elected by the community in obedience to laws of the State which impose duties upon them in relation to State affairs, as contra-distinguished from affairs of interest to the city merely, such as relate to gasworks, sewers, waterworks, public lighting, etc., they are' upon a different footing, and may properly be said to hold office under the State. We will first consider whether this distinction is a proper one to be made under our Constitution, and it must be determined upon adjudicated cases elsewhere, and such lights cf a domestic nature as our own decisions and discussions afford.
There are cases which hold that a similar provision is to be applied only to constitutional offices, and it is contended here that, at the most, the provision does not include all offices that are held under State authority; that officers elected by counties, townships, school districts, etc., should be excluded. In the State of Louisiana that seems to be the rule, as has been repeatedly declared, under the following constitutional provision, viz.: “No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of the peace.” The cases sustain the statement, and some of them go the length of holding that the section applies only to constitutional offices. They all rest upon the decision in the case of Dorsey v. Vaughan, 5 La. Ann. 155. In that case the question before the court was whether a person could be, at the same time, sheriff and parish tax collector. The court said that “the office of parish tax collector, if office it be (upon which point we express no opinion), is a municipal office; that of sheriff is a State office. The incompatibility contemplated by the constitution is the holding pf two State offices.” No authority is cited in support of this construction, nor is any reason given, and, as an authority, this case has no intrinsic-value outside of Louisiana, except that which any decision should have by reason of the eminexice of the judges who made it. See, also, State v. Blanchard, 6 La. Ann. 515, which deals with another constitutional provision; and Voorhies v. Fournet, 15 La. Ann. 597; State v. Montgomery, 25 La. Ann. 138; State v. Newhouse, 29 La. Ann. 824; State v. Somnier, 33 La. Ann. 237. From the foregoing it would appear that the Louisiana authox’ities sustain the proposition contended for, viz., that only State offices, as contradistinguished from those pertaining to counties, etc., are within the provision of the Louisiana constitution; and not only that, but they must be offices created by the constitution. Offices of lesser subdivisions seem to be treated as municipal offices; and as the “parish” in Louisiana is defined by Webster to be “a civil division, corresponding to a county in other States,” it is obvious that Dorsey v. Vaughan was not in fact treating of a municipal corporation proper, but a quasi corporation, and this may perhaps be explained by the fact that the civil law is the substratum of Louisiana jurisprudence. This use of the term “municipal corporation” does not seem to be adopted in the other cases that we shall discuss, and we mention it to clearly show that the Louisiana cases differ in important particulars from others. We recall no other case that goes so far as to hold that county and township offices, so called, are not “ offices held under the State.”
Counsel for the respondent are of the opinion that the Louisiana cases are reinforced, and that view shown to have been entertained, by our constitutional convention of 1850, not by reason of its treatment of this particular provision, but in its discussion of a kindred provision appertaining to the eligibility of members of the legislature, viz., section 6 of article 4. The counsel have, we think, misapprehended the purport of the discussion in the constitutional convention. So far from the members of the convention entertaining the opinion that the expression “officer under the State” means the same thing as “State officer,” the contrary view appears to have been expressed by every member who is recorded as having addressed the convention upon the subject. Mr. Bush, referring to the provision in the Constitution of 1835 which reads, “No person holding any office under the United States or of this State, officers of the militia, justices of the peace, associate judges of the circuit and county courts, and postmasters excepted, shall be eligible to either house of the legislature” (section 8, art. 4), said that—
“Under it the question of the eligibility of certain county officers had been frequently before the legislature, and it was yet uncertain whether they rightfully held their seats or not. It was urged by some that county an 1 township officers were excluded from holding seats, from the very fact that justices of the peace were excepted He had never been in the legislature without witnessing some confusion growing out of the election of a county officer, judge, clerk, or some other.”
Mr. Bush further stated that it was the duty of the convention to set the matter at rest. Mr. McClelland thought that—
“The general interpretation of the clause of the Constitution was as stated by the member from Ingham (Mr. Bush), that all officers were excluded save those specially excepted. * * * In regard to the cases of county officers holding seats, mentioned by gentlemen, he believed the question of their eligibility had been referred to committees, but, if rumor was correct, those committees had withheld their reports, and the officers thus permitted to remain and hold their seats in the legislature. The question was not settled.”
After an amendment inserting the words, “or any county office,” had been proposed, Mr. Goodwin said:
“It has been remarked that the corresponding section in the present Constitution has occasioned a great deal of discussion in the legislature. ' It has received a broad construction, and one, I think, not in conformity with its object and intent.”
After quoting the provision, he proceeded:
“ One would have supposed that the phraseology would have excluded county officers, yet it is well known that they have been admitted to seats. I remember a case that occurred two years ago. A contested election of a county clerk had been returned to the house of representatives, and he had obtained a certificate of his election. The question came up as to his competency to hold the seat; yet he was permitted to retain it. I understood it was decided that the proper construction of the section was that it merely applied to State officers; in 'common parlance, officers appointed directly by State authority.”
It will be noted that Mr. Goodwin was of the opinion that, although the clause had, in this instance, been interpreted to mean “officers appointed directly by State authority,” this was a misconstruction, and the provision should have been construed as excluding county officers as well. He offered an amendment, of which he said: “It will put the matter beyond the probability of any ambiguity or misconstruction.” See Convention Debates 1850, pp. 129-131.
It will be seen, therefore, that there was in the convention no apparent disagreement as to the proposition that section 8 of article 4 of the Constitution of 1835 excluded others than those who were “appointed directly by State authority,” nor is it easy to perceive why there should have been. In the same instrument (article 6, § 6) it was provided that each township might elect four justices of the peace. It is perfectly obvious, therefore, that if the words “office under the United States or of this State” were given a construction which limited them to “officers appointed directly by State authority,” the exception, in the same section, of justices of the peace, was senseless; and as the words are susceptible of a construction which excluded officers mediately holding office under authority of the State, and administering State functions, it is to be assumed that they were employed in that sense. It is also plainly inferable that, if the words were used in this sense in the section referred to, similar words were used in a like sense in section 16, art. 5, which reads: “No member of Congress, nor any other person holding office under the United States or this State, shall execute the office of governor,”—a provision in the same language as is employed in section 15, art. 5, of our present Constitution.
It should, perhaps, be stated that the question cannot well arise under the corresponding provision of our present Constitution relative to the qualifications of members of the legislature (article 4, § 6), as the inhibition contained in that section, as appears by the Constitution actually adopted by the convention, signed by the members of the convention, and filed in the office of the secretary of state, does not apply to State officers; the words “or this State” having been omitted, whether intentionally or through inadvertence it is impossible to say. Certain it is that the vote adopting the Constitution was taken upon the engrossed copy, as appears by the proceedings of the convention (page 918).
In California, the constitutional provision was that “no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this State,” etc. In People v. Leonard, 73 Cal. 230, the office of supervisor of a district was held to be prohibited.
The Indiana constitution prohibited the holding by one person, at the same time, of two lucrative offices under the State, and was held to cover the office of county commissioner and county recorder. Dailey v. State, 8 Blackf. 329. In Foltz v. Kerlin, 105 Ind. 221 (55 Am. Rep. 197), a township trustee was held to be within the provision.
In Virginia the Code provides that “no person shall be capable of holding any post of profit, trust, or emolument, civil or military, legislative, executive, or judicial, under the government of this commonwealth,” who holds certain other offices enumerated. Bunting v. Willis, 27 Grat. 144 (21 Am. Rep. 338), and Shell v. Cousins, 77 Va. 328, involved the office of sheriff, which is a county office, and, in the latter case, a “sampler of tobacco,” in the city of Petersburg. These offices were held to be within the prohibition.
Shelby v. Alcorn, 36 Miss. 273 (72 Am. Dec. 169), held, under a provision prohibiting the appointment of a senator to “any civil office under this State which shall have been created during his term as senator,” that a senator was not eligible to the office of levee commissioner of a county. In this case it was said:
“And it is laid down ‘that a public officer is one who has some duty to perform concerning the public; and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty, and the nature of that duty, which makes him a public officer, and not the extent of his authority.’ 7 Bac. Abr. 280; Carth. 479. And we apprehend that it may be stated as universally true that where an employment or duty is a continuing one, which is defined by rules prescribed by law,, and not by contract, such a charge or employment is an office, and the person who performs it is an officer. This was the rule applied by Chief Justice Marshall in the case of U. S. v. Maurice, 2 Brock. 96, in which it was held that an agent of fortifications was an officer. * * * The law itself provides that the levee commissioner shall hold his office for the term of two years, under such restrictions as are therein prescribed. He is required to give bond, and to discharge the duties of treasurer, in which position he is entitled to receive large sums of public money. The board of police, upon the report of the levee commissioner as to the cost of the work to be done, is required to levy a sufficient tax to meet it; and he is required to take an oath £ that he will, in all things touching his office, seek to promote the best interests of his county and the State of Mississippi.’ These directions, of themselves, without doubt, define the character of the place of levee commissioner, and determine it to be an office. But, in fact, the several acts on the subject contemplate the performance of duties to the public which are prescribed by law, for a stated compensation. * * * It follows, hence, that whether an office has been created by the constitution itself, or by statute enacted pursuant to its provisions, the incumbent, as a component member of one of the bodies of the magistracy, is vested with a portion of the power of the government, whether the portion of the power of the government which he is thus entitled to exercise is legislative, judicial, or executive in its character. * * * It is manifest that the local and limited power and duties of the levee commissioner can have no effect in determining the question whether his office is not an office under the State. A member of the board of county police, or a justice of the peace, is as much an officer under the State as the executive, the heads of departments, or a member of the judiciary. The powers attached to the office of levee commissioner evidently pertain to the executive branch of the government. Clothed with a portion of the power vested in that department, the commissioner, in the discharge of his proper functions, exercises as clearly sovereign power as the governor, or a sheriff, or any other executive officer, when acting within his appropriate sphere.”
These cases proceed upon the theory that all officers whose duties are prescribed by general law, however trivial, perform their own particular portion of the business of the State. The levying and collection of taxes are State matters. So are all things connected with the State system of schools, construction and maintenance of public highways, and preservation of the peace, and these cases hold the generally conceded doctrine that all who have parts to perform in the general scheme are officers holding under the State, if their engagement rises to the dignity of an office, rather than a mere employment.
The next distinction made relates to municipal offices,, and it is said that officers elected in cities are not to be classified with county and township officers, and cannot be said to hold office under the State; that such offices are held under the city. In the absence of authorities, we should hesitate before saying that the constitutional convention contemplated that a governor might be a sheriff, or county clerk, or a supervisor or highway commissioner, upon the ground that counties and townships are recognized agencies of government, each forming a territorial division to and upon which is given the privilege and imposed the responsibility of managing certain public affairs of the State in the respective localities. The sheriff is a conservator of the peace, and it is the peace of the State. The county clerk keeps the records of the State courts and other State records for his county as to births, deaths, taxes, and elections, and makes reports to superior officers. The county treasurer, judge of probate, superintendent of schools, and the board of supervisors all perform the duties imposed upon them within their respective counties, it is true, but in obedience to laws of general application and regulating State affairs. The same can be said of township, school, and highway officers. These are all part and parcel of the one great scheme of State government. But at this point it is said that we must draw the line; that when we pass the confines of the smallest village or the largest city the section does not apply. Such localities are parts of the State, State laws are in force within such territory, and the various officers have to perform many functions pertaining to State as contradistinguished from city affairs. The State revenues have to be levied, collected, and paid over by them through county officers, the same as in the township ; highways have to be provided, repaired, and maintained; schools in substantial harmony with the State school system must be maintained, which are in part supported by the State school funds; the criminal laws are enforced through justices’ and other courts, constables, marshals, police officers, etc.; some officer in these localities has the custody of securities for debt, as does the township clerk; the council takes the place of the township board in the management of local affairs; elections for State, county, and local officers are in charge of city and village officers; and it is obvious that the volume of State business in a busy city is much greater and more complicated and important than in a rural township. Still it is urged that the Constitution makers had no intention of excluding occupants of municipal offices from executing the office of governor, while at the same time they prohibit incumbents of the office of overseer of highways, school inspector, or even notary public from performing the duties of governor.
It would seem manifest that, if the contention of counsel for the respondent is correct, it must be based upon some other reason than a lack of interest on the part of the State in the performance of their duties by city officers. We do not recall a reason that has been given that will serve to explain satisfactorily why the mayor of a city should be permitted to execute the office of governor, when the incumbent of the lowest office in a township or a post-office at crossroads is prohibited. But, plain as this may seem to be, there are cases which make a distinction between State and municipal offices, and we will discuss them.
In Pennsylvania the constitution provided that no person holding office under the United States should exercise the office of judge. The recorder of Philadelphia had some judicial functions, and in Respublica v. Dallas, 3 Yeates, 300, 314, it was said that, in strict legal sense, he was a “judge,” but that there was difficulty in determining what the constitution meant; and the court seems to have considered it a close question, but determined that the use of the word ‘ ‘ judge ” was with reference to officers known by that name in the law, and that it was not intended to include all who performed judicial duties. Among other reasons for reaching this conclusion (and it is a cogent one) was the fact that, in the section under discussion, “not only some of the judicial characters, as justices of the peace, are omitted in the prohibition, but others, as registers of wills, although, as constituting a part of the register’s court, they are declared to be part of the judicial power of the State, are particularly included in the prohibition, showing the sense of the convention that every person exercising judicial power was not intended to be included under the word ‘judge;’ otherwise it would have been nugatory to have expressly included the registers.” It is plain that the decision does not aid us in determining whether city offices are held under the State, yet it is one of the cases relied on in support of respondent’s contention. It is a case where a city office was held not to be included, but it was for reasons peculiar to the particular provisions of that constitution.
In State v. Wilmington City Council, 3 Har. (Del.) 294, the court passed on the following provision of the constitution, viz.: “No ordained clergyman or ordained preacher of the gospel, of any denomination, shall be capable of holding any civil office in this State, or of being a member of either branch of the legislature.” The question arose over the office of city treasurer, and it was held not to be within the meaning of the provision. Here, again, some facts are found in connection with the Delaware constitution which render the decision of no great force upon the question we are discussing. One thing the opinion does show, viz., that local officers such as constables, overseers of the poor, and even attorneys at law, were State officers. We quote:
“Is this principle fully recognized in excluding clergymen from all offices connected with the government properly speaking, or does it require to be extended to offices held under public corporations, and not held under or composing any part of the State government-? The business of the convention was to establish a State govern ment, and to provide the mode of its administration. In speaking of offices, such offices were undoubtedly meant as were designed for this purpose, either directly or indirectly. And the constitution is very particular in its details in reference to officers and the mode of their appointment, specifying election officers, officers relating to taxes, to the poor, and to highways, constables, and hundred officers. Even attorneys at law seem to have been .regarded as officers, being a part of the judicial branch of the government, and concerned in carrying out the system. For all these have their parts to perform, and without the agency of any, the most unimportant of them, the system would be imperfect. But the constitution nowhere descends to notice a corporation officer. Such an office forms no part of the system of government. It is perfectly immaterial, for all the purposes of State government/whether the city of Wilmington has a treasurer or no treasurer; and, as the existence of such an officer did not enter into the system of government which the convention was forming, it cannot be supposed that the qualifications or disqualifications which they sought to apply to their officers were designed by them to be extended and applied to such corporate officer.”
Other reasons arising out of and peculiar to the Delaware constitution are shown in the following quotation from the opinion:
“But if this office of city treasurer be an ‘office’ within the meaning of the constitution, the whole affair is wrong, and the people of Wilmington have no right to choose the person who shall fill that office. If this be a ‘civil office in this State,’ such an office as is embraced within the constitution, it is an office ‘under this State,’ and the appointment to it is, by the same constitution, vested in the government. Article 3, § 8: ‘ The governor shall appoint all officers whose offices are established by this constitution or shall be established by law, and whose appointments are not herein otherwise provided for.’ This is an office established by law, and the appointment to it is not provided for in the constitution otherwise than by the general appointing power of the governor. If, therefore, it be a constitutional office, it must be filled by the governor’s appointment.”
This case clearly implies, if it does not expressly state, that the city treasurer of Wilmington has no functions of a State character, in the language quoted, which we repeat:
“For all these have their parts to perform, and without the agency of any, the most unimportant- of them, the system would be imperfect. But the constitution nowhere descends to notice a corporation officer. Such an office forms no part of the system of government. It is perfectly immaterial, for all the purposes of State government, whether the city of Wilmington has a treasurer or no treasurer.”
We may conclude what we have to say upon that case with the statement that the opinion- refers to the case of Respublica v. Dallas, 3 Yeates, 300, as “in point, and on the same principle,” upon the question of constitutional construction, i. e., that the section is to be construed in the light of other provisions of the constitution. It will be noticed that in neither of these cases is there anything that militates against the proposition that a municipal officer with State functions is an officer under the State, or asserts that he is exempt from the provision because elected by a city or village.
But in the case of Attorney General v. Connors, 27 Fla. 329, may be found an instance where the supreme court of Florida holds that, while a sheriff is within the prohibition of one of these provisions because he is a State officer, a city marshal is not, because he holds under a city, and therefore not under the State. It 'seems to be put upon the ground that, inasmuch as the constitution left the legislature the power of creating and destroying municipal corporations, it cannot be supposed that they were understood to be a part of the State government, considered in its broad and comprehensive sense, although it admits that they are clothed with powers to be exercised outside of the confines of the municipality (and therefore with State powers), still “ they are incidents, auxiliaries, and agencies only, in their relation to the States’ government.” Again, county officers are distinguished upon the ground that they “are, in express terms, created and provided for by the constitution, as part of the machinery of the State’s government in their respective counties, and are to be regarded, strictly speaking, as officers of the State.” This case decides the question upon its own State constitution, and, were we to approve the reasoning (which we do not), might readily be distinguished from a case arising under our Constitution, where the incorporation and organization of cities and villages by the legislature are required (article 15, § 13); and by article 4, § 38, authority is given to confer powers of a local, legislative, and administrative character upon townships, cities, and villages. The latter provision has always been .considered as authorizing the legislature to impose on municipalities and their officers the responsibility for the performance of State duties, of one character or another, and has never been supposed to mean only that it might confer privileges in which the State would have no interest. This could be done without this provision. Under it they have imposed duties pertaining to the public health and good order, and various other subjects of general concern. See Davock v. Moore, 105 Mich. 120, 132; Friesner v. Common Council of Charlotte, 91 Mich. 504. We are not impressed by the argument that, as these corporations and offices may be created and destroyed by the legislature, such offices are not held under the State. County and township, and, for that matter, State, offices, may be created and destroyed by the legislature at will, yet they are State offices.
In Santo v. State, 2 Iowa, 165, 220 (63 Am. Dec. 487), where the question was whether a mayor, who was given the criminal jurisdiction of a justice of the peace, had functions pertaining to two departments of government, viz., the executive and judicial, the court disposed of the question by the simple assertion:
‘ ‘ These departments are the departments of the government of the State of Iowa. The mayor of the city of Keokuk is not a part of the government of the State of Iowa. He exercises none of the functions belonging to that department. Whatever executive offices he may perform pertain to him only as an officer of that corporation. But we do not mean to say that he is an executive officer, in any proper sense.”
This case, it will be observed, deals with another provision, and involves the determination of what is meant by “departments of government.” This question is discussed more at length in the case of People v. Provines, 34 Cal. 520, 538, where Sanderson, J., follows the Iowa case and that of Uridias v. Morrill, 22 Cal. 473, which last case, he says, is on all fours. The force of this opinion is lessened by the relation of the writer to the case of People v. Sanderson, 30 Cal. 160, where it was held that he could not perform duties pertaining to the office of trustee of the State library, which were given him by statute, because it would be exercising functions pertaining to two branches of government, and by the fact that Rhodes, J., dissented, expressing the opinion that the case overruled a series of decisions, continuous from Burgoyne’s Case, in 1855. 5 Cal. 9. We shall discuss other cases, at war with this doctrine, upon other provisions of the Constitution; but the subject is not especially important, as the doctrine enunciated in the Iowa case would be applicable to county or township offices as well as city offices. It does not turn on the fact that the mayor was a city officer, but upon a restricted interpretation of the term ‘ ‘ departments of government. ”
Carpenter v. People, 8 Colo. 116, arose upon the provision: “No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under this State.” The opinion says that People v. Provines and Santo v. State are decided upon similar constitutional provisions (which is manifestly otherwise), and are in point, and that they have no reason to doubt their soundness, but “preferto rest the decision upon the plain words of the constitution; it only prohibits appointment to a civil office, not election,”—and upon this ground alone eligibility was sustained.
Britton v. Steber, 62 Mo. 374, is a case upon which great reliance is placed; but, in the first place, it is based upon a different provision of the constitution, and, second, there is nothing to show that the mayor had any duties pertaining to the State. On the contrary, the opinion states that “there is a recognized distinction between State officers, whose duties concern the State at large or the general public, although exercised within defined territorial limits, and municipal officers, whose functions relate exclusively to the particular municipality.” It is quite probable that if a municipal officer had duties pertaining only to the city’s private affairs or property, as gas or water works, sewers, etc., respondent’s contention would be correct, though the case of State v. Valle, 41 Mo. 29, quoted approvingly in the case last discussed, would seem to imply the contrary. That case goes the furthest of any that we have seen. The constitutional provision was:
“No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under this State which shall have been created, or the emoluments of which shall have been increased, during his continuance in office as a senator or representative, except to such offices as shall be filled by election of the people.”
A member of the house of representatives was appointed by the mayor as a member of the board of water commissioners of the city of St. Louis. The court held him ineligible, and discussed the question before us as follows:
“The government is the fountain of office, and civil officers have a right to exercise a public employment, and take the fees and emoluments thereunto belonging. 1 Bl. Comm. 272; 2 Bl. Comm. 36. A civil office is a grant and possession of the sovereign power, and the exercise of such power, within the limits prescribed by the law which creates the office, constitutes the discharge of the duties of, the office, and it is distinguished in this respect from a mere employment as a contractor or agent under some public office. Opinion of Judges, 3 Me. 481; Com. v. Binns, 17 Serg. & R. 219; Lamson v. Sutherland, 13 Vt. 309; County of Yalabusha v. Carbry, 3 Smedes & M. 529, 550. The legislature had the constitutional power to establish this board of commissioners as a part of the local administration of city affairs, and to appoint the officers, and to provide that they should be paid out of the city treasury; and, as a body constituted for purposes of civil government, they are unquestionably civil officers under this State. People v. Draper, 15 N. Y. 532; Hamilton v. St. Louis County Court, 15 Mo. 3; Daley v. City of St. Paul, 7 Minn. 390: In a certain popular acceptation, the words ‘ civil office under this State ’ might possibly be interpreted to mean State officers, in the sense of participating directly in the administration of the State government as such; but they are none the less civil officers under this State because their functions are confined to the local administration. The offices are created, and the officers are appointed, and their powers given, and their duties defined, and their salaries fixed, directly by act of the legislature. They exercise a share of the powers of civil government, and their authority comes directly from the State. They are to be considered as much civil officers under this State as the judge of a court or the mayor of the city. They would be none the less so if appointed by the mayor, for they would still derive all their powers from the act which creates the office. The mode of appointment is not material.”
Bearing in mind the distinction made, viz., that immunity depends on the duties being only and purely municipal, we shall find that the Indiana cases are in harmony, and support the proposition that one having State functions is within the prohibition, though he be elected by the electors of the municipality. The earliest case was Waldo v. Wallace, 12 Ind. 569, and it was held that a mayor, being a judicial officer of the State, was therefore ineligible to the office of sheriff. In Howard v. Shoemaker, 35 Ind. 111, it was held that a mayor, who was a judicial officer, was ineligible to the office of prison director; but it was not put upon that ground (only two of the four justices being willing so to hold, owing to his having been by statute relieved of his judicial duties), but the case turned on other functions of the mayor. The court said:
“Upon the other question, it is the opinion of a majority of the court that as the mayor of a city, under the act of 1867, has duties to perform, under the laws of the State, aside from those which .are judicial and those of a purely municipal character, such as the taking and certifying of affidavits and depositions, the proof and acknowledgment of deeds and other instruments in writing, for which he is entitled to and may charge and receive fees, the office is a ‘ lucrative ’ one, within the meaning of section 9, art. 2, of the constitution of the State.”
In State v. Kirk, 44 Ind. 401 (15 Am. Rep. 239), the office of councilman was held to be “purely and wholly” municipal in its character, and that such officer has no duties to perform under the general laws of the State, and he was held not to be prohibited from holding another office. It is significant that the opinion cites the case of State v. Wilmington City Council, 3 Har. (Del.) 294, as much in point. This case of State v. Kirk was followed in the case of a city clerk in Mohan v. Jackson, 52 Ind. 599, without discussion. Foltz v. Kerlin, 105 Ind. 221 (55 Am. Rep. 197), has been discussed. The matter is summed up in Chambers v. State, 127 Ind. 365, and the distinction shown to be generally recognized is clearly drawn. After discussing the various cases, the court continues:
“It must, therefore, be regarded as the settled law of this State that if an office is purely municipal, the officer not being charged with any duties under the laws of the State, he is not an ‘officer,’ within the meaning of the constitution; but if the officer be charged with any duties under the laws of the State, and for which he is entitled to compensation, the office is a ‘lucrative office,’ within the meaning of the constitution.”
The recent case of Montgomery v. State (decided at the November, 1894, term of the supreme court of Ala bama), 107 Ala. 372, contains the latest review of this subject that we have met. The provision of the constitution is as follows: “No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this State which shall have been created, or the emoluments of which shall have been increased, during such term, except such offices as may be filled by election of the people.’ The office was that of judge of the police court of a city. The court quoted copiously from some of the cases hereinbefore cited, and held the office to be prohibited.
Some language used by this court in the case of Miner v. Shiawassee County Supervisors, 49 Mich. 604, is pertinent in showing its recognition of a State interest in local officers. The case arose over a question of costs upon a hearing upon charges preferred against a prosecuting attorney. The court said:
“When the particular office of prosecuting attorney is .considered, no one will question that the county is greatly concerned in his being a man of integrity, because he is the official adviser of the county, and must represent it in litigation. But the State is concerned also, for he is the attorney for the State in all local prosecutions, and is relied upon to see to the local administration of public justice in its behalf. He is a local officer as respects his election and salary, but his duties to a large extent are local only in the sense that they are to be performed locally; for they are performed on behalf of the State just as much as are the duties of the judge who holds the courts for his county. ”
We have so far confined the discussion of the character of municipal officers to cases of constitutional disability to hold office. But the subject has arisen in many ways, and authorities are innumerable in support of the control of the State over municipal officers and their functions. In treating this subject, Mr. Dillon says (Dill. Mun. Corp. § 58):
“And here it is important to bear in mind the before-mentioned distinction between State officers—that is, officers whose duties concern the State at large, or the general public, although exercised within defined territorial limits—and municipal officers, whose functions relate exclusively to local concerns of the particular municipality. The administration of justice, the preservation of the public peace, and the like, although confided to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of gasworks, of waterworks, the construction of sewers, and the like, are matters which pertain to the municipality, as distinguished from the State at large.”
Again, it is said in the same work, in a note to section 60, p. 102, that—
“ The cases concur in holding that police officers are, in fact, State officers, and not municipal, although a particular city or town be taxed to pay them. Cooley, Tax’n (2d Ed.), 681. An act which makes the mayor and aldermen of a corporation commissioners of the courthouse and jail maybe repealed by the legislature, and these buildings placed under the control of county or other officers. State v. Mayor, etc., of City of Savannah, R. M. Charlt. 250. See, also, State v. Dews, Id. 397. A grant to a city to aid in building a courthouse and for educational purposes is subject, until executed, to legislative resumption and control. Bass v. Fontleroy, 11 Tex. 698. In the absence of constitutional restriction, the legislature may directly appoint officers to act within the municipality.”
In People v. Hurlbut, 24 Mich. 81, Mr. Justice Campbell says:
“The only confusion existing on this subject has arisen from the custom prevalent under all free governments of localizing all matters of public management, as far as possible, and of making use of local corporate agencies whenever it can be done profitably, not only in local government, where it is required by clear constitutional provisions, but also for purposes of State. Illustrations of this might easily be multiplied. The whole system of State taxation, under our laws, is made to depend on the action of town and county officers, who make the assessments and collect most of the taxes. And the whole machinery of civil and criminal justice has.been so generally confided to local agencies that it is not strange if it has sometimes been considered as of local concern. But there is a clear distinction in principle between what concerns the State and that which does not concern more than one locality; and, where the Constitution has made nó rule for their management, affairs belonging to State policy must be subject to immediate State control, if the legislature shall deem it necessary. ”
In the same case Mr. Justice Cooley said:
For those classes of officers whose duties are general, such as the judges, the officers of militia, the superintendents of police, of quarantine, and of ports, by whatever name called, provision has, to a greater or less extent, been made by State appointment. But these are more properly State than local officers; they perform duties for the State in localities, as collectors of internal revenue do for the general government; and a local authority for their appointment does not make them local officers, when the nature of their duties is essentially general. * * * The municipality, as an agent of government, is one thing; the corporation, as an owner of property, is in some particulars to be regarded in a very different light.”
It yet remains to determine whether the office of mayor of Detroit has State functions, and, when the provisions of law bearing upon that question shall have been collected, it will leave no room for doubt. By the charter (Act No. 326, Local Acts 1883, chap. 5, § 1), the mayor is made a conservator of the peace, which, as has been already said, imposes a State duty, which he holds in common with all magistrates. 2 How. Stat. § 9264, imposes similar duties. It is as follows:
“If any persons, to the number of twelve or more, being armed with clubs or other dangerous weapons, or if any persons, to the number of thirty or more, whether armed or not, shall be unlawfully, riotously, or tumultuously assembled in any city, township, or village, it shall be the duty of the mayor and each of the aldermen of such city, the supervisor of such township, the president and each of the trustees or members of the common council of such village, and of every justice of the peace living in such city, township, or village, and also of the sheriff of the county and his deputies, to go among the persons so assembled, or as near to them as may be with safety, and in the name of the people of this State to command all the persons so assembled immediately and peaceably to disperse.”
This is made more emphatic by a provision making neglect or refusal to perform such duty punishable under the criminal laws of the State:
“If any mayor, alderman, supervisor, president, trustee, or member of a common council, justice of the peace, sheriff or deputy sheriff, having notice of any such riotous or tumultuous and unlawful assembly as is mentioned in this chapter, in the city, township, or village in which he lives, shall neglect or refuse immediately to proceed to the place of such assembly, or as near thereto as he can with safety, or shall omit or neglect to exercise the authority with which he is invested by this chapter for suppressing such riotous or unlawful assembly, and for arresting and securing the offenders, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding three hundred dollars.” Section 9267.
Again, section 9435 authorizes the mayors of all cities to require persons to give security to keep the peace, and section 9454 et seq. authorizes them to conduct examinations of persons charged with crime, and commit them to jail, or require a recognizance for appearance at the circuit court for trial. Again, section 9479 authorizes mayors to admit persons charged with crime to bail. Section 9385 commands mayors to issue proclamations requiring saloons to be closed upon election days, and again emphasizes the State character of this requirement by making a violation of the section a misdemeanor, punishable by fine and imprisonment. Again, under 1 How. Stat. § 911, in cases of riot, breach of the peace, tumults, or violent resistance of any process of this State, it is within the power of the mayor to call upon the commanding officer for aid from State troops; and section 913 provides a punishment for officers who refuse to comply with the request. Again, mayors are made members of the boards of health. Section 1681. See, also, section 42, chap. 7, of the charter, for authority of the council in relation to the preservation of the public health, and section 38 for authority as to drainage. And see Act No. 336, Local Acts 1883, which authorizes the mayor to nominate persons to fill vacancies upon the school board. This is under a general law, as is his veto power given by Act No. 394, Local Acts 1893, which was held constitutional in Pingree v. Board of Education, 99 Mich. 404. Again, the mayor may administer oaths (section 14, chap. 5, of the charter); and, under section 15, may hear complaints and annul or suspend licenses for violations of the ordinances, or any other law of the State. Other duties pertaining to State affairs might be mentioned, but these are perhaps the most significant, and are ample to show that the mayor of Detroit holds office under this State; and we think it beyond reasonable contention that this office is within article 5, § 15, prohibiting the execution of the office of governor by one holding it.
Are the offices of mayor of the city of Detroit and the governor of the State incompatible under common-law rules ? It is the universal rule that, when such incompatibility exists, the acceptance of the latter office vacates the first. State v. Goff, 15 R. I. 505 (2 Am. St. Rep. 921), and authorities there cited. The authorities are in substantial agreement as to the rule of incompatibility, and Mechem states it as follows: ‘ ‘ This incompatibility which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both.” Mechem, Pub. Off. § 422. In State v. Goff the test is thus stated:
“The test of incompatibility is the character and relation of the offices; as where one is subordinate to the other, and subject in some degree to its revisory power, or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices.”
In State v. Thompson, 20 N. J. Law, 689, it is said:
“Where there is no express provision, the true test is whether the two offices are incompatible in their natures, in the rights, duties, or obligations connected with or flowing out of them. Offices, says Bacon, are incompatible or inconsistent when they cannot be executed by the same person; or when they cannot be executed with care and ability; or where one is subordinate to or interferes with another (Bac. Abr. tit. ‘Office’ K); or where one office is under the control of another (Com. Dig. tit. ‘Office’). A town clerk, made mayor, and accepting the office, ceases to be town clerk, as the one office is subordinate to the other; and where a coroner is made sheriff he ceases to be coroner (Bac. Abr.). So, where a master in chancery is appointed chancellor, I apprehend he ceases to be master because the chancellor has a control over his masters.”
The sole difficulty lies in the application of the rule, and in every case the question must be determined from an ascertainment of the duties imposed by law upon- the two officers. If one has supervision over the other, or if one has the removal of the other, the incongruity of one person holding both offices is apparent, and the incompatibility must be held to exist so that the acceptance of the latter vacates the former. We have already referred to the provisions of the charter and the statute laws imposing duties upon the mayor. For the violation of some if not all of these, he might be removed from office by the governor under the statute hereinafter cited. Section 653, 1 How. Stat., provides that “the governor may remove all county officers chosen by the electors of any county or appointed by him, and shall also remove all justices of the peace and township officers chosen by the electors of any township, or city or village officers chosen by the electors of any city or village,” etc. The Constitution, article 15, § 13, provides for the incorporation and organization of cities and villages by the legislature. Under this provision, the legislature possesses the power to provide for the creation, election, and removal of the municipal officers of cities and villages. Such has been the universal practice under the Constitution. The Constitution, article 12, § 7, is as follows: “The legislature shall provide by law for the removal of any officer elected by a county, township, or school district in such manner and for such cause as to them shall seem just and proper.” It is urged that this provision of the Constitution last quoted does not in express terms include the mayor, and that, therefore, no such power of removal exists. In McLaughlin v. Burroughs, 90 Mich. 311, proceedings were instituted for the removal of an alderman of the city of Detroit under the statute above cited. The proceedings were recognized as authorized under the latter provision of the Constitution above cited. The authority to institute the proceedings does not appear to have been questioned. This argument, carried to its logical conclusion, would result in holding that the legislature has no power to provide for the removal of any village or city officer, because, if there is no constitutional power to provide for the removal of a mayor, there is also no constitutional power to provide for the removal of any officer of a city. Chief Justice McGrath, in his opinion in Davock v. Moore, 105 Mich. 120, 148, said: “There is no doubt of the power to provide for the removal by the governor of any officer of any municipality in the discharge of whose functions the State has a special interest.” The majority opinion was not in conflict with this statement. Counsel for the respondent appear to concede that the charter provisions for the removal of officers are valid. This concession concedes the power to provide for the removal of the mayor, and for authority for his removal we must look to the general statute of removals. This statute expressly includes the mayor, and is clearly authorized by the Constitution, whether it be based upon section 7, art. 12, or upon section 13, art. 15, which confers upon the legislature exclusive authority over the organization of cities and villages.
It is also urged that this general law is superseded by the charter of the city, because the latter provides for the removal of other city officers, but not of the mayor. In other words, the mere silence of the charter operates as a repeal as to the office not mentioned as well as to those mentioned in it. If the charter had made provision for the removal of the mayor, there would be force in this contention that the latter superseded the former, but mere silence as to the removal of an officer does not operate to suspend or repeal a general law providing for such removal.
In Rex v. Tizzard, 9 Barn. & C. 418, it was held that the offices of alderman and town clerk were incompatible, and that one person could not hold both, and this for the reason that the mayor, aldermen, and bailiffs of the borough had the appointment of the clerk, the fixing of his salary, and the power of removal. This decision was largely based upon the power of removal. Lord Tenterden, C. J., said:
“ The fifth replication shows that the common clerk has to attend corporate meetings, and take minutes of their proceedings. If that be not done faithfully, he may be amoved from his office, and upon that question he would have a vote in his character of alderman. Thus, then, he would fill the two incompatible situations of master and servant.”
In the same case, Bayley, J., said that he thought two offices were incompatible where the holder could not, in every instance, discharge the duties of each; and in the two questions of amotion and salary the town clerk was not competent to discharge the duties of an alderman.
In State v. Thompson, supra, it was held that the offices of attorney general and prosecutor of the pleas were incompatible, although neither the constitution nor the statute prohibited it. In Cotton v. Phillips, 56 N. H. 220, the offices of prudential committee and auditor of a school district were held incompatible, because it was the duty of the auditor to examine the accounts of the prudential committee, and report whether, they were properly cast and supported, and whether the money had been legally expended. The court said: “If the same person could hold both offices, he would in fact sit in judgment on his own acts.” In Stubbs v. Lee, 64 Me. 195 (18 Am. Rep. 251), it was held that the defendant vacated the office of justice of the peace by being appointed to and assuming the functions of deputy sheriff, on account of the incompatibility of the two.
In State v. Brown, 5 R. I. 1, the defendant, a colonel of a regiment of the militia, was appointed to the office of major general, and it was held that his acceptance of that office vacated his colonelcy. The language there used is also applicable to this case:
“ Now, looking at the duties of the two offices in question, the legal compatibility of the two is hardly an arguable position. For the same person to be commander and commanded,—to be superior and subordinate at the same time, above his brigadier in one capacity and below him in another,—contradicts every notion of military authority and discipline, unless, as the argument .for the defendant supposes, when acting in his higher capacity he abandons his lower capacity, or vice versa.”
In State v. Buttz, 9 S. C. 156, the question was whether the offices of State solicitor and member of Congress were incompatible. Held, that they were, notwithstanding the provision of the constitution that “every person entitled to vote at any election shall be eligible to any office which now is or hereafter shall be elective by the people,” etc. See, also, Pooler v. Reed, 73 Me. 129.
If a superior officer is clothed with the power to remove from office an inferior officer, there is certainly no logic or reason in holding that one person may hold both. No more marked incompatibility is possible.
The remoteness of the necessity for the removal of a mayor by the governor is urged by counsel for the respondent as a reason why a legal incompatibility does not exist at the common law. The question, however, is one of the existence of the power, and not the remoteness of its exercise. This position is well answered in State v. Goff, supra, where it was urged that the respondent would not probably undertake to act in both offices at the same time:
“The admitted necessity of such a course is the strongest proof of the incompatibility of the two offices. The question of incompatibility is to be determined from the nature of the duties of the two offices, and not from a possibility, or even a probability, that the defendant might duly perform the duties of both.” State v. Brown, 5 R. I. 1.
The power of removal is ever present, ready for use when its exercise is required. The argument that the contingency for its use is very remote is without force. We have been unable to find a decision which holds that one person may hold two offices, in one of which he is clothed with power to remove the person holding the other It follows that the offices of mayor and governor are incompatible.
In the course of these proceedings, reference has been made, on behalf of respondent, to the alleged fact that Mr. Pingree was elected to the office of governor after a public declaration of an intention to continue to perform the duties of the office of mayor, and it is intimated that a result which ousts him from the office of mayor will have the effect to disfranchise the people, and that such a result is fraught with dangerous consequences. Were it not for the eminence of counsel who present these considerations to this court, we should hesitate about adverting to such elementary principles as furnish an answer to these suggestions and demonstrate their impropriety as well. Even the power of majorities may be, and often is, restrained by the written Constitution; and where the majority assumes to do what is forbidden, or to do what is permitted in a mode forbidden by the Constitution, the duty of the court to protect the rights of minorities is too manifest to require, at this day, either apology for its exercise or an elucidation of its source of authority. If, in law, the effect of the election of Mr.' Pingree to, and his accept anee of, the office of governor operated to vacate the office of mayor, a court that would weigh majorities before so declaring would deserve impeachment and the contumely which would follow.
We have yet to consider the effect of the attempt to execute both offices. Mr. Pingree has taken the constitutional oath, and is in possession of the office of governor, and performing its duties. This section of the Constitution renders the two offices incompatible, as does the rule of the common law already discussed; and the general rule that the acceptance of a second vacates the first of two offices that are incompatible is not only the rule of the common law, but is held to apply to incompatibility growing out of constitutional provisions in several of the cases hereinbefore cited. See People v. Sanderson, 30 Cal. 160, 167; People v. Provines, 34 Cal. 520, 541; Foltz v. Kerlin, 105 Ind. 221 (55 Am. Rep. 197); Dailey v. State, 8 Blackf. 329; Shell v. Cousins, 77 Va. 328; also Northway v. Sheridan, 111 Mich. 18.
From what is said, it is obvious that the respondent should not have refused to call an election, and, in view of the fact that an election is to be held in Detroit on the 5th day of April next, it is desirable, upon the ground of economy, that this vacancy be filled at that time, if it can be legally done. Counsel seem to agree that seven days’ notice of the special election to fill this vacancy is sufficient, and there is ample time to nominate candidates at conventions which have been already or can yet be called. It is conceded by counsel for the respondent that primaries for a special election may be held after the time specified in Act No. 411, Local Acts 1895, if there be time to print the ballots. We are therefore of the opinion that the election can be lawfully held at that time.
The writ will be granted as prayed, requiring the respondent to take all necessary steps to hold such election at the time named.
The other Justices concurred. | [
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Long, C. J.
December 21, 1895, the plaintiff commenced suit in the Bay circuit court against David M. Estey and James H. Calkins, partners under the name of Estey & Calkins, and on the same date sued out a writ of garnishment against defendant Williams; alleging in the affidavit upon which the writ was issued that “Charles S. Williams, of Owosso, Mich., has property, money, goods, chattels, and effects in his hands and under his control belonging to the said David M. Estey and James H. Calkins, and each of them, and is indebted to them, and each of them.” Mr. Williams made disclosure in the case under oath, in which he stated that he was not indebted to the principal defendants, or either of them, and was not at the time of the service of the writ upon him, but that at the time of the service of the writ he then held 100 shares of the' capital stock of the Estey Manufacturing Company, of Owosso, Mich., represented by certificate No. 68, of the par value of $25 each, which had been duly assigned to him by David M. Estey, “and which he now holds as collateral security for the indorsement and guaranty by him, the said Charles S. Williams, of a certain promissory note made by David M. Estey on December 5, 1895, to C. J. Monroe, for the sum of $2,500, payable four months from date, with interest at 7 per cent., but by whom the Said note is now held he is unable to say,” and that he has no other property, credits, or effects of said Estey & Calkins. On the trial the plaintiff offered in evidence the judgment in the principal case against Estey & Calkins. This was objected tó by counsel, for the garnishee defendant for the reason that the judgment was obtained at a former term of court, and under the statute the garnishee suit should have been brought on for trial at that term. It was also objected that the stock of a corporation is not subject to garnishee process. These objections were overruled. It appeared that the judgment in the principal suit was for $2,617.35, that the garnishee defendant had advertised and sold this stock for the sum of $3,250, and that the note upon which he was held as indorser- was paid in full out of the moneys arising from the sale of the stock, leaving a surplus in his hands of $669.41. For this amount the court below entered a judgment in favor of the plaintiff, less the expense of the sale of the stock and the garnishee’s witness and attorney fees, which were fixed at $35.
The case was tried before the court without a jury, and, so far as appears by this record, there were no requests by either party for findings of fact or law. The record consists simply of copies of the records and files in the principal case and in the garnishee proceedings, together with the articles of association of the Estey Manufacturing Company, the testimony in the case, and objections to the introduction of testimony, the rulings of the court thereon and added thereto, and the assignments of error by the garnishee defendant. It appears that the trial of the garnishee case was had September 29, 1896, while the judgment was rendered in the principal case on January 14, 1896. But for the exception which was taken to the ruling of the court in admitting in evidence the judgment in the principal case, as heretofore stated, this case could not be heard in this court, as it would be ruled by Gemberling v. Lazarus, 100 Mich. 324; Township of Cumming v. Shick, 94 Mich. 222; Keystone, etc., Manfg. Co. v. Jenkinson, 69 Mich. 220; Child v. City of Jackson, 93 Mich. 503; Haines v. Saviers, 93 Mich. 440. It may be added, also, that the record does not, in terms, purport to contain all the evidence submitted upon the trial. While the garnishee case was not heard until September, although the judgment in the principal suit was rendered in January preceding, there is nothing to show but that the garnishee case was continued over the term upon cause shown, or by consent of counsel. This court will not presume error, and there is none shown by the record.
It is not disputed but that the surplus remaining in the hands of the garnishee defendant after the sale of the stock belonged to Mr. Estey, one of the principal defendants. Counsel for defendant argue that while the shares of stock may be reached by attachment and execution under 2 How. Stat. § 7697 et seq., and section 7993, yet there is no statute which provides for reaching such surplus by writ of garnishment; that at common law there was only one way to reach the interest of a shareholder in a corporation, and that was in equity, the interest being, an intangible one, not subject to levy by execution; that, proceedings in garnishment being statutory, the rule that they cannot be extended to include any case not provided by the statute is one of necessity; that there is no process of court provided by statute by which the surplus itself can be made available to the plaintiff, as the court has no power to order a sale in such a proceeding; that the fact that the garnishee defendant, after being served with the writ, sold the shares, and had the proceeds in his hands in money, did not enlarge the plaintiff’s rights; that the right to hold the garnishee depends upon the state of the claim, as one garnishable or not, at the time of the serving of the process.
The last proposition is well settled in this State. Martz v. Insurance Co., 28 Mich. 201; Hopson v. Dinan, 48 Mich. 612; Bethel v. Judge of Superior Court, 57 Mich. 379. The question is therefore presented, as contended by counsel for defendant, whether this certificate of stock in the hands of the garnishee was subject to garnishment. While we find no statute in this State which expressly provides that stock in a corporation may be the subject of garnishment, yet section 7697, 2 How. Stat., provides that such stock may be taken and sold on execution; and the rule seems to be settled by the weight of authority, and in reason, that, where stock may be taken and sold on execution, the garnishee may be charged for choses in action in his possession. It is the rule of. the common law that no such stock can be taken in execution, but the statutes of most of the States now provide for such levy and sale. The reason given in many of the cases cited by counsel for garnishee why such stock is not subject to garnishment is that the judgment needed is one authorizing a sale of the stock, and there is no law making bank and other stock subject to execution. Our statute provides for such levy and sale. Sections 8058, 8059, 2 How. Stat., provide for charging the garnishee defendant with the property, money, goods, chattels, and. effects in his hands, etc. Section 8065 reaches any personal property, etc., subject to any pledge, lien, or mortgage. Under these statutes, we think the stock was subject to garnishment. It was personal property which might be taken in execution, and, within the garnishee statute, was personal property subject to that claim. This was the rule laid down by the supreme court of Minnesota in Puget Sound Nat. Bank v. Mather, 60 Minn. 362, and in Edwards v. Beugnot, 7 Cal. 162. Shares of stock in corporations are bought and sold in the markets of the world as personal property. The shares in controversy were treated as personal property, pledged as such, and sold under the pledge. The garnishee statute, while not expressly providing for the holding of this particular personal property under garnishment process, yet does hold personal property and certain choses in action. The maker of a promissory note may be garnished after its maturity, if it is then owned by the principal defendant. Somers v. Losey, 48 Mich. 294. The statute in Minnesota is very similar to our own, and in Banning v. Sibley, 3 Minn. 389, 405, it was held that shares in a railroad company were liable to be taken on garnishee process. The court said: “There being nothing in the nature of the property itself which exempts it from process of execution or attachment, no valid reason can be given why it should not be reached by this process, which is, in effect, but another form of attachment, and intended to reach a class of cases in which the ordinary writ is of no avail.” See, also, Storm v. Cotzhausen, 38 Wis. 139; La Crosse Nat. Bank v. Wilson, 74 Wis. 391.
The judgment must be affirmed.
The other Justices concurred. | [
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Moore, J.
This case has been here once before, and is reported in 103 Mich. 420. The facts are so fully stated in the reported case that it will be necessary here to refer only to the facts first offered on this trial. Many of the legal questions sought to be raised here now were settled in the former trial, and must be treated as res judicata.
In disposing of the former case, this court held that, as the plaintiff received less than $43.75 per month for a long period of time, without protest or complaint, it was strong evidence against the execution of the contract, and was a clear waiver of his right to a subsequent claim of $43.75 per month for the time covered by such payments. It was held that it was not only evidence of waiver, but, unexplained, it amounted in the law to a waiver. On the second trial, for the purpose of showing that he had protested and made complaint at the reduction of his wages, and to do away with the presumption of waiver, plaintiff gave evidence of a talk he had with Mr. Miller, his attorney, and what was told him as to the effect of his accepting employment at a reduced rate; of his procuring Mr. Spencer, freight agent at Manchester, who kept his time, to write to Mr. Blodgett, division superintendent, that he would not accept the cut; that he made a protest to Mr. Corbus, road-master at Adrian; and that he went to see Superintendent Hand, at Detroit, to get reinstated. This is said to be error. "We think it was competent for the purpose for which it was offered.
This question and answer were given:
"Q. Aside from your disability, what is the condition of your physical and general health now, and how has it been since you were discharged ?
“A. My general health is good, but I very often have a pain in my back and in my side, so that I cannot do any heavy lifting. Can do light work as well as any man.”
It is said this was error. We think it was proper testimony to be given, for the purpose of enabling the jury to pass upon the probable duration of life, the plaintiff’s capacity for work, and to enable them to decide intelligently upon the question of damages.
Complaint is made that the court did not direct a verdict for the defendant. There is no reason now why he should direct a verdict for the defendant that did not exist when the case was here before.
The charge of the court upon the question of damages is said to be error. The court charged the jury in the language approved by this' court when the case was here before, and, in addition thereto, gave the requests to charge presented by the attorneys for the defendant. There is nothing in this- statement of the law of which the defendant has a right to complain.
The trial judge was. asked to grant a new trial, because the verdict was against the evidence, and because the damages were excessive. We have already held that the case was a proper one for the jury, and .there was testimony which, if believed by them warranted them in finding a verdict for the plaintiff.
Was the verdict so excessive that the court ought to interfere? The verdict was for $4,791, and was rendered in October, 1895. The accident occurred in 1874. The plaintiff was discharged in 1891, and, on the day of his discharge, was 47 years old. Testimony was given in detail of the earning capacity of plaintiff. Tables were introduced of his expectation of life. The jury had the facts before them, and they were correctly instructed in the law. We do not see any such disparity between the testimony and the verdict as would justify us in setting aside the verdict because it was excessive.
Judgment is affirmed.
The other Justices concurred. | [
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Hooker, J.
The complainant was the owner of a building and a stock of goods. Upon the former was a mortgage of $400, held by a Mrs. Slee, and he was indebted to other persons. He made a deed of the premises to the defendant Darveau, and afterwards, within a short time, sold the stock of groceries, and paid his unsecured debts, with slight exceptions, and furnished the defendant Darveau with $360, with wliich, and $40 of his own money, Darveau paid the mortgage, and took an assignment of it to himself. The complainant claims that the bill in this cause is a bill to declare the deed a mortgage, and to redeem, and is based on the theory that the deed was given to secure Darveau for the amount of said mortgage, upon his agreement to pay it, and the further sum of $100, which he was to receive for his assistance in preventing a threatened foreclosure of the mortgage, and in assisting the complainant in regard to his other affairs. The bank is made a party by reason of its interest in the premises by virtue of a mortgage for $300, given to it by the defendant Darveau.
The answer of the principal defendant denies the allegations of the bill, and alleges that the premises were deeded to him in pursuance of a purchase for $800.
The evidence shows to our complete satisfaction that, up to a few days before the mortgage was given to the bank, both parties treated the deed as security for an amount which complainant owed to Darveau. They do not agree as to their negotiations' regarding a settlement. Complainant claims that, on discovering that Darveau had made the mortgage to the bank, he asked the defendant Darveau to deed the property to him, and take security for what was his due; but Darveau refused. On the other hand, Darveau testified that he was always willing to receive the amount his due, and deed the property; that the complainant finally wanted to sell him the place, and, when asked what he wanted for it in cash, he said the balance of the $800 (that sum being named in the deed as the consideration). To this Darveau replied that he would not give it, but would give him $300 cash, and a second mortgage for the remainder, but complainant would not take a second mortgage, and they parted. Darveau further testified that later in the day they agreed upon the bargain, and that there was $300 due the defendant Darveau, which he was to have a week to borrow on the place, and, if he did not get it in a week, the complainant would get it elsewhere; but defendant borrowed it at the savings bank. To do this, he paid $12 for an abstract, which increased the amount due him; and he then concluded that he would either keep that money himself, and deed the premises, or he would give complainant a mortgage for $500, which complainant agreed to, and accepted upon the promise that defendant Darveau should have the bank mortgage discharged. The evidence shows that complainant knew what he was doing, and he says that he took the mortgage because it was all that he could get. He recorded it at once, and from that time on to the time the suit was begun—a period of several months—the parties had talks about a settlement, with a view to payment of the defendant Darveau, and his redeeding the property. Meantime $275 of the amount borrowed lay in the bank, Darveau holding a certificate of deposit for it, $25 having been taken by him in cash when the money was borrowed. We are impressed with the belief that the only obstacle to a settlement was a disagreement as to the amount due the defendant Darveau. The affair culminated in this suit. From a decree for the complainant, the defendants appeal.
There is much to support the claim that the real purpose for which this deed was made was to protect the complainant from loss through an attack by his creditors, which seemed imminent. He unqualifiedly says so more than once in his testimony, and the testimony of the defendant Darveau corroborates it. It is not clear that he designed to ultimately defeat his creditors, and he was attempting to sell his goods, that he might pay, and succeeded in doing so; but it is evident that he was endeavoring to gain time by putting his property into defendant Darveau’s hands, and there is evidence that he desired to do the same with the stock. Under the well-known rule, equity will not undertake to relieve the complainant by setting aside a conveyance made for such a purpose, or doing it indirectly by treating as a mortgage a fraudulent deed. Perhaps the complainant knew this when he made sure of the $500 mortgage upon the new deal. This was a valid transaction, and, as we understand it, the defendant Darveau professes to be willing to cause the other mortgage to be discharged. Just why it has not been done does not appear. It would seem that he should do so, but we cannot make a decree to that effect upon this record.
The decree is reversed, and the bill is dismissed, with costs of both courts, but without prejudice to further proceedings with reference to the discharge of said mortgage.
The other Justices concurred. | [
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] |
Long, C. J.
This is an action of ejectment to recover possession of a strip of land 2 feet wide and 115 feet long. It is the strip extending southward from the barn, as shown on the plat in the case of Beecher v. Ferris, 110 Mich. 537. In that case the controversy arose over a strip 2 feet wide and 16 feet long, being the land on lot 5 covered by the barn. There, as here, the controversy arose over the question of plaintiff’s continuous adverse possession of the strip for a sufficient length of time to ripen into a title. The question there was fully and fairly submitted to the jury, and that judgment was affirmed in this court, the defendants having recovered in' the court below. In the present case the defendants also recovered.
Some contention is made that the court erred in the admission of certain of the testimony. We have examined these questions, and find no error, and shall not discuss them. .
The next contention is that the court erred in refusing to give plaintiff’s first request to charge, as follows:
“Plaintiff claims to recover upon what the law calls ‘adverse possession’ of this strip of land; and it is not necessary, to entitle him to recover, that he should show any deed or survey or plat, or anything of that kind, as evidence of ownership.”
The court refused this request, but counsel for defendants contend that the giving of the third request cured the error, if any error was committed. The third request reads:
“Plaintiff’s adverse possession would become perfect with the lapse of 15 years, even if plaintiff originally had no shadow of title, provided such adverse possession was so open that any other person could bring suit to eject the plaintiff.”
We think the third request substantially covered what was asked in the first request.
Some contention is made that the court erred in modifying the plaintiff’s seventh, eighth, tenth, and eleventh requests. These requests all proceeded upon the theory that, when Mr. Ferris built the fence, he put it upon the true line. He testified that at that time he did not know where the true line was; that all of Mr. Beecher’s property was open common, and he built his fence to keep the cattle out, and not as a boundary line fence; that, when he had it surveyed, he found where the line was, and moved the fence upon the true line. We think all these questions were fully and fairly submitted to the jury. The controversy is over this disputed boundary. The fact that Mr. Ferris put a fence there without knowing where the line was would not estop him from putting his fence on the true line, unless Mr. Beecher had acquired title to the disputed strip by adverse possession. This question was left to the jury.
The judgment must be affirmed.
The other Justices concurred. | [
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Potter, J.
Plaintiffs were the owners of real estate in the city of Detroit upon which was located a three-story 13-apartment brick building which they sold to William H. Wakely and Bhoda S. Wakely, his wife, for $85,000; $20,000 of which was paid down and $65,000 of which was to be paid in monthly instalments of not less than $650 each, with interest at six per cent, while the contract was not in default; and at seven per cent, per annum if it was in default, and, in addition, the sum of $2,000 was to be paid on principal before one year from the date of the contract, which was made March 24, 1927. Subsequently, and in 1928, William H. Wakely and Rhoda S. Wakely, his wife, vendees under the land contract by which the premises were sold by plaintiffs to them, assigned their contract to the defendants Angelo Scaduto and Lillian Scaduto, his wife, by which said assignment the Scadutos assumed and agreed to pay the balance due upon the contract, together with interest, being the sum of $58,990.05. This assignment was consented to by the plaintiffs, and the Wakelys are not made defendants for that reason. Simultaneously, with the assignment of this land contract from the Wakelys to the Scadutos, consented to by the plaintiffs, an agreement was made by which the plaintiffs reduced the monthly payments upon the contract from $650 to $550. Other changes were made in the contract. The defendants, the Scadutos,' made the monthly payments as reduced to and including the payment due for March, 1932, but made no subsequent payments. Plaintiffs then instituted this suit, declaring the whole amount unpaid to be due as follows: Principal March 18, 1932, $49,045.27; interest to May 13, 1932, $809.26; taxes, second half of 1931 city taxes, $487.41; 1931 State and county taxes, $334.86; together with interest at the rate of seven per cent, per annum from the date of default in the payment of the taxes. About April 9, 1932, the defendants, the Scadutos, assigned their interest in this contract to Samuel Palazola, who is also made a party defendant. The contract provided:
“That if the title of the seller is evidenced by land contract or now or hereafter incumbered by mortgage, the seller shall meet the payments of principal and interest thereon as they mature and produce evidence thereof to the purchaser on demand and in default the purchaser may pay the same, which payments shall be credited on the sums matured or first maturing hereon with interest at seven per cent, per annum and in event proceedings are commenced to recover possession or enforce the payment of such contract or mortgage because of the seller’s default the purchaser may at any time thereafter while such proceedings are pending incumber said land by mortgage securing such sum as can be obtained upon such terms as may be required and with the proceeds pay and discharge such mortgage or purchase-money lien, and any mortgage so given shall be a first lien upon the land superior to the rights of the seller therein and thereafter the purchaser shall pay the principal and interest on such mortgage so given as they mature, which payments shall be credited on the sums matured or first maturing hereon, and when the sum owing hereon is reduced to the amount owing upon such contract or mortgage or owing to any mortgage executed under either of the powers in this contract contained, a conveyance shall be made in the form above provided with a covenant by the grantee to assume and pay the same.”
And under and by virtue of this provision in the contract there was a mortgage upon the premises securing the principal sum of $26,000. Plaintiffs, in their bill of complaint, ask for a determination of the amount due and sale of the premises, decree for deficiency and for a receiver to take possession of the lands and premises, make necessary repairs and collect rentals and conserve the interests of the parties in the property pending a determination of the case. Defendants Scaduto, by way of cross-bill, claim plaintiffs failed and refused to produce evidence of the payments due under such mortgage as demanded by the defendants; that they defaulted in the mortgage in the payment of $2,000 due thereunder April 1, 1932, notwithstanding defendants paid to plaintiffs between April 1, 1931, and March 18, 1932, approximately $5,301.10, and they ask rescission upon the ground that plaintiffs have neglected and refused to carry out the terms and provisions of their contract. The trial court, on June 30, 1932, entered a decree finding the amount due upon the contract $51,171.05, together with interest at seven per cent, per annum from that date for principal, interest, and taxes, decreeing foreclosure of the land contract, that defendants Scaduto pay said sum together with the costs of suit on or before 15 days from the date thereof, and that in default the premises be sold by a circuit court commissioner, but providing that payments might be made by defendants assuming and agreeing to pay the mortgage incumbering the premises, which mortgage runs to the Detroit Trust Company, appointing a receiver with the authority to operate and manage the property in the usual course of business, collect and receive the rentals and income, pay the expenses, directing the tenants to attorn to the receiver, restraining defendants from' interfering with the receiver or with the tenants, directing a foreclosure sale and the application of the proceeds and delivery of a deed on sale, and a full termination of the rights of defendants therein. From this decree they appeal.
The proof indicates defendants, having paid plaintiffs more than $5,000 upon the contract from 1931 to 1932, were not to blame for plaintiffs’ default in not meeting the payments due upon the mortgage. Plaintiffs neglected to make these pay ments, and notwithstanding they were in default, filed this bill to foreclose the land contract, declaring. the entire amount due. Defendants refused to make further payments until plaintiffs relieved themselves of such default. As stated in Dirr v. Hitchman, 260 Mich. 179:
“As long as plaintiff is in default on her mortgage defendant’s rights under the contract are in jeopardy because they may be cut off by foreclosure of the mortgage at any time the mortgagee elects so to do. The only way the defendant could protect himself would be to pay the mortgage; but in so doing his payment or payments would be very much accelerated. The effect would be the substituting of a new and very different contract and much more burdensome to the defendant than the one under which he purchased the property. Neither plaintiff nor the court has the right to substitute another and different contract than that entered into by the parties.”
See, also, Wilson v. Lingon, 260 Mich. 134.
Plaintiffs did not meet the payments due upon the. principal of the mortgage. Vendees had paid $5,301 to vendors, who had paid out but $1,500 during the year prior to the commencement of foreclosure proceedings. Rescission is a remedy properly restricted to the cancellation of contracts involving mutual obligations. Failure of the vendors to perform their contract is ground for rescission by the vendee. Upon plaintiffs’ election to declare the whole amount due payable on the contract at once defendants elected to rescind. This they had a right to do. Wilson v. Lingon, supra, 139.
The decree of the trial court will be reversed, with costs, and a decree entered for rescission as prayed. The causé will be remanded for an accounting as prayed. Defendants will' have a lien for the amount to be found due them.
■ McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Clark, J.
Defendant Harry Grévnin filed motion to dismiss, averring lack of jurisdiction of his person. He' changed attorneys, and the present counsel, in connection with notice of substitution, filed general appearance, and accordingly the motion was denied. Defendant has appealed.
By the general appearance, entered by his attorney, defendant submitted to jurisdiction, but this is challenged on the ground of lack of specific authority of the attorney to enter a general appearance. He was the attorney. He entered general appearance. What he intended is not important. As a matter of law, he entered general appearance, and that is decisive under the rule of Najdowski v. Ransford, 248 Mich. 465, where it is said:
“Whether participation in a suit constitutes a general appearance is not a question of intention hut one of law.”
See, also, Weisman v. Newton Beef Co., 154 Mich. 511; Petersen v. Wayne Circuit Judge, 243 Mich. 600; Kramer v. Gerlach, 28 Misc. 525 (59 N. Y. Supp. 855); Stevens v. Harris, 99 Mich. 230; Lane v. Leech, 44 Mich. 163.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
The defendant is a graded school district. The board of education therein consists of five members. Legal meetings may be held if written notice thereof is given, or if all of the members are present thereat. 2 Comp. Laws 1929, §§ 7107, 7124. On April 2,1928, a meeting was held at which all of the members were present. The following appears in the minutes thereof:
“Moved.by Edward Oltz and supported by John J. Knopes that Miss Kittie E. Vreeland be given superintendent. Vote taken by roll call: John Knopes, yes; Edward Oltz, yes; Reese Vreeland, yes; A. B. Smith, no; S. L. Vreeland, not voting. Total number of votes cast — 4. 3 yes, 1 no. Miss Vreeland received majority therefore she was declared hired. Motion carried. ’ ’
On April 19th following’, four of the members of the board met. S. L. Vreeland was absent. Business was, however, transacted thereat. The following appears in the minutes:
“Moved by Reese Vreeland and supported by Edward Oltz, that Miss Kittie Vreeland be given a three-year contract as superintendent with a salary of $3,000 per year. Payable monthly. Vote taken by roll call. Yeas, John J. Knopes, Edward Oltz, Reese Vreeland. A. B. Smith, no. Motion carried.”
Reese Vreeland, the secretary of the board, testified that he gave the members “verbal notice” of the meeting; that it was called “to hire teachers and contract a superintendent;” that he gave a verbal notice to Samuel L. Vreeland, the absent member, and he “said he was sick and couldn’t attend and whatever the board did he would sanction.” On the same day, the president, secretary, and treasurer of the board signed the contract with the plaintiff as a teacher of the school for three years at an annual salary of $3,000.
The meeting held on April 19th was not a legal one. But four members were present, and the fifth had not received a notice in writing. It was at this meeting that the term of service and the manner of payment were fixed. In my opinion the contract entered into with plaintiff is not enforceable.
In Township Board of Beaver Creek v. Hastings, 52 Mich. 528, it was held (syllabus):
“Meetings of a township board, unless duly called and notified, are not legal if not attended, by all the members.”
This holding was cited with approval in Auditor General v. McArthur, 87 Mich. 457; Boyce v. Auditor General, 90 Mich. 314, 324; Lewick v. Glazier, 116 Mich. 493, 498. It also applies to meetings of a board, of education.
The judgment is reversed and set aside, with costs to appellant, and the cause remanded with directions to enter a judgment for the defendant.
Clark, Potter, North, and Fead, JJ., concurred with Sharpe, J. | [
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Fead, J.
This is an appeal from an award of compensation by the department of labor and industry. Defendant contends plaintiff was an independent contractor.
Plaintiff was á piece worker, cutting logs at a stated sum per log, varying with the size of the timber. The relationship had some of the elements of an independent contractorship, such as that plaintiff was paid by the piece; that he furnished his own tools; that he engaged a partner to work with him; and that he was given a strip of timber to cut. Kimberg v. Murray, 233 Mich. 543; Donithan v. Michigan Iron & Chemical Co., 227 Mich. 609. On the other hand, there were indices of the relationship of employer and employee from testimony that the camp boss required piece workers to begin work each day when the crew started, that the boss could discharge them before they had finished their strips, that if they wanted to quit they would be paid and let go, that they were moved from one strip to another or to general timber before they had finished the first, that after plaintiff was hurt the foreman would not permit his partner to get a man to help him and continue the work because there were too many logs ahead, and he placed'him on other day’s work, and that plaintiff had been paid compensation on a former occasion when working under similar arrangement. Conrad v. Cummer-Diggins Co., 224 Mich. 414; Dominic v. Faucett, 245 Mich. 337.
The case presented an issue of fact for the department, and its decision is final.
Award affirmed.
McDonald, C. J., and Potter, Sharpe, North, and Butzel, JJ., concurred with Fead, J. | [
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Wiest, J.
Defendants were convicted of the crime of being disorderly persons within the meaning of Act No. 328, Pub. Acts 1931, § 167; it being charged that, from March 15 to September 11, 1933, they were engaged in an unlawful occupation and business; in that they had combined and confederated with, others into an illegal combination created for the purpose of conducting illegal business, to wit: violation of the extortion statutes; violations of the statutes governing the carrying of concealed weapons; violations of the robbery statutes, and violations of the murder statutes of the State of Michigan. Upon trial by jury they were convicted and sentenced to imprisonment for 90 days, that being the maximum penalty. The evidence against them consisted, in the main, of unsuccessful prosecutions for various crimes; records showing that Licavoli, in 1925, was fined $100 for carrying concealed weapons, served one year, commencing in June, 1929, for violation of the Federal prohibition law, and in 1930 he was charged with murder and acquitted. Practically the same proof, except imprisonment, was made against Bommarito. Police officers testified that defendants associated with men having the reputation of being murderers, stick-up men, bootleggers, and robbers, and had the reputation of being bootleggers, stick-up men, robbers, and murderers. No overt act was disclosed during the period charged. It is manifest from the record that defendants were convicted on evidence of repute under the following provision of the statute:
“Proof of recent reputation for engaging in an illegal occupation or business shall be prima facie evidence of being engaged in an illegal occupation or business.”
The question before us at this time is whether that provision accords an accused “due process of law. ’ ’
Defendants were convicted of having the reputation of engaging in an illegal business or occupation, and, therefore, were guilty, in fact and beyond a reasonable doubt, of being engaged in an illegal business or occupation. The presumption so declared by the enactment is not a rational deduction or inference from fact to fact, but an arbitrary fiat of the legislature. If proof of reputation for engaging in an illegal occupation or business is constituted prima facie evidence of being engaged in an illegal occupation or business, and, without more, establishes guilt, then we are all agreed that the statute is unconstitutional because violative of “due process of law.” We are divided, however, upon whether the statute so provides. Mr. Justice North construes the provision to mean “that proof of recent reputation for engaging in an illegal occupation or business is competent proof thereof.” I am of the opinion that the statute constitutes such proof of reputation prima facie evidence of guilt, and that such was and is its manifest purpose. I cannot read out of the statute the mandate carried by its express terms. It may be that the legislature, in the use of the term “prima facie evidence” did not fully comprehend the legal significance thereof, but such, if true, does not call for our correction. We must presume that the lawmakers acted advisedly in the use of legal terms. At any rate, we are supposed to understand the meaning of the term, give it force as employed, if valid in purpose and effect, and deny it the force of law if it is in violation of “due process of law.”
The vice in this statute cannot be sterilized by the emasculation proposed by my Brother. Reputation, without regard to verity, is constituted prima facie evidence of guilt — not guilt of having such reputation, but guilt of the specified crime. The statute constitutes it a misdemeanor to engage in an illegal business or occupation, and creates repute or hearsay proof of being so engaged, not merely competent evidence, but prima facie evidence of being so engaged, and, without more, guilty of being so engaged. The statute constitutes extra-judicial utterances prima facie evidence of the ultimate fact of guilt. This takes no cognizance of the generic and strongest presumption known to the criminal law — that of innocence until guilt is established by competent evidence beyond a reasonable doubt.
But it is said that the statute should be so construed as to permit a jury to accept or reject such evidence. This would take the heart out of the enactment and render it too feeble to operate without substantive evidence. The purpose of the enactment is too plain not to be recognized, and its purpose, manifested by its language, is self-destructive. The statute does not provide for a mere inference from extrinsic, indicatory proof, but constitutes reputation of engaging in an illegal business or occupation sufficient, without more, to convict an accused of the crime of engaging in an illegal business or occupation.
The petty case at bar, and the claimed bad character of defendants, does not cause me to overlook the consequences of judicial sanction of the course of law prescribed by this enactment.
“The constitutionality of a law is determined, not alone by what has been done, but by what may be done, under its provisions.” City of Watertown v. Christnacht, 39 S. D. 290 (164 N. W. 62, L. R. A. 1917 F, 903).
If this enactment is held valid, then a like rule of evidence and inference and prima facie presumption of guilt may be made applicable to cases of felony.
Charges of felonious acts, based upon surmise, engendered by ill-will or love of notoriety, may be disseminated and create a reputation by hearsay, and the fact of such reputation, and not the foundation or truth thereof, is all that need appear in court. I cannot yield to an arbitrary rule that reputation of engaging in an illegal business or occupation is a fact and such fact may be shown and constitutes prima facie evidence of guilt. Under such a rule of evidence, no man’s liberty is safeguarded, for malice, spite, gossip, unfounded accusation, slander and libel, resulting in reputation, will come into court under the guise of a fact, termed reputation, without inquiry as to the utterers or of knowledge had by them, and be solemnly declared prima facie evidence of guilt in accord with due process of law. The statement that reputation is a fact and the fact may be proved has been made before.
In Commonwealth v. Stewart, 1 Serg. & R. (Pa.) 342, it was urged in a prosecution for keeping a disorderly house that the complaint of the neighbors was a matter of fact, and, therefore, when the witness proved the complaint she had only proved a fact within her own knowledge. But the chief justice said:
“I am not satisfied with this ingenious distinction, which gets round and avoids an important rule of evidence. In the same way all hearsay evidence may be introduced, for it is always a fact, that the witness hears the other person speak, and it is a fact that the words spoken by that person were heard by the witness. But what is the consequence of receiving testimony of this kind? The jury are influenced by declarations not made upon oath, and the adverse party is deprived of the benefit of cross-examining the person making those declarations. * * * It appears to me, that the evidence amounted to no more than the general reputation of a disorderly house, and certainly this is not one of the cases in which general reputation is evidence.”
It must be remembered that defendants are not prosecuted for having a criminal reputation, but for committing a specific crime, wholly independent of any reputation, and the statute constitutes such reputation prima facie evidence of their guilt. If reputation were the offense denounced by the statute, then we would have a different question. Defendants were denounced by hearsay and convicted by inference drawn therefrom.
Suppose an enactment like this is made applicable to illegal acts under the banking law, and some person, over the radio, broadcasts accusation of violation and designates and denounces the object of his suspicion, how long would it take to create and fasten the reputation of having committed such an offense? Would it be considered “due process of law” not to call the accuser, or even his dupes, but sufficient to establish an illegal and criminal, course of conduct by reputation of having engaged in such a course of conduct and constitute such a reputation prima facie evidence of guilt?
It was stated in Hammond v. State, 78 Ohio St. 15 (84 N. E. 416, 15 L. R. A. [N. S.] 906, 125 Am. St. Rep. 684, 14 Ann. Cas. 732), in holding a somewhat similar statute unconstitutional:
“If the general assembly, in order to make conviction easier under this act, can rightfully provide that one of the essential and constituent elements of the crime charged, viz., the unlawful character of the trust or combination, may be shown and made certain, by proof of common rumor, or general reputation, and the guilt of the accused be thus estab listed, it is difficult to see why it may not, with equal right, provide that murder, arson, or any other crime, may he thus established by proof that the person accused thereof is generally reputed to be the person who committed the same; a proposition at once so obnoxious and repugnant to the plainest principles of reason and justice, that none would yield assent to it. It is a matter of common and universal knowledge that bad reputation may, and oftentimes does, originate in malice, from mistake, or irresponsible rumor, and once suggested or set going, the rapidity with Avhich such a reputation gathers vigor and volume is proverbial. Hence, as is very fittingly and appropriately said by Durfee, C. J., in State v. Kartz, 13 R. I. 528, 531:
“ ‘To introduce into the law the principle that a person can be punished for what other people say about him, is to render all the constitutional safeguards of life, liberty, and property unavailing for his protection; for it is impossible to say to what purposes so pernicious a principle may not be applied if it is once permitted to take root.' "
In State v. Beswick, 13 R. I. 211 (43 Am. Rep. 26), there was involved an act of the general assembly constituting “the notoriously bad or intemperate character of persons frequenting” certain premises prima facie evidence that intoxicating liquors were kept on such premises. The court held the act unconstitutional, and stated:
“Suppose that the general assembly were to enact that if any person Avere generally reputed to be guilty of a murder it should be prima facie evidence that he was guilty, and that some citizen were convicted and sentenced to death or imprisonment on such evidence, because in the absence of rebutting evidence the jury had no option to acquit him. Could it be said that his life or liberty had been taken from him by the judgment of his peers? We think not. The judgment of the jury would not have been taken on the question of his guilt, but only on the question of whether or not he was generally reputed guilty. So under the statute here a man may be convicted of unlawfully keeping intoxicating liquors for sale, upon proof that his place of business is generally reputed to be a liquor shop, without the jury’s actually passing any judgment on the question of his guilt.”
But it is said that defendants were at liberty to rebut the presumption. This but emphasizes the fact that if an accused does not go forward with the proofs the presumption stands, without more, as evidence that he is guilty.
In State v. Lapointe, 81 N. H. 227 (123 Atl. 692, 31 A. L. R. 1212), this question was evidently presented, for the court stated:
“It is said that so long as the defendant has preserved to him the right to fully present his defense, and then have the evidence weighed, he has nothing to complain of. But the right to make defense is not the whole right secured to one charged with crime. He has also the right to insist that before he can be found guilty there must be substantial evidence upon every fact essential to the establishment of his guilt, and that this evidence shall be weighed by the jury and found sufficient to prove the case. It is his right to decline to produce any evidence and to stand solely upon the proposition that the State must prove a case against him. * * *
“The rule of the Constitution is that the defendant in a criminal case cannot be compelled to go forward.
“ ‘The faot that he is charged with a crime gives him certain special privileges. Among these are the requirement of the State to prove the charge against him beyond a reasonable doubt; the constitutional prohibition of compelling him to accuse or furnish evidence against himself; the right to meet the witnesses against him face to face, and so forth. ’ * * *
“In a criminal prosecution, nonaction of the defendant cannot be substituted for action upon the part of the State, as to any matter required to be established as a part of the State’s case. Neither the burden of proof nor the burden of proceeding with any evidence to prove such case can be imposed upon the party charged with crime.
“Most courts that have sustained these statutes as binding the judgment of the jury have done so upon the theory that all the legislature had undertaken to do was to prescribe a rule of evidence. As already pointed out, this is not the real purpose and effect of the legislation. It seeks to compel a party to go ahead in the case, to produce evidence, or else have the fact found against him as matter of law. It is a rule of procedure, and undertakes to take from the defendant rights guaranteed to him by the Constitution.
“It is herein that these statutes are fatally defective. By what authority can the legislature impose a burden upon the defendant for not producing evidence? One will search in vain through all the decisions for any answer. No doubt the statute gives the defendant full opportunity to present all the evidence, but that does not help the situation. These statutes were not designed for, and do not apply in, cases where other evidence upon the question is produced. They apply only to cases where there is no evidence save the statutory inference front fact A to fact B, and they say to the jury that the inference is inevitable. You must find fact B if you-find that fact A is proved. * * *
“To stress this so-called privilege of the defendant to produce evidence, as so many courts have stressed it, is an entire perversion of the protection guaranteed to him. '* * *
“It is his constitutional right not to produce evidence. Were it not for the array of cases denying the substance of this privilege, it would seem incredible that any one could suppose that it could be invaded by any legislation based upon a power to penalize the exercise of the right. Giving to him the right to produce evidence or not, is no substitute for his right not to produce it. The former is a privilege now generally conferred. But the latter is a fundamental right which neither legislatures nor courts are at liberty to impair. Conferring the privilege to produce cannot limit or in any way affect the constitutional right not to produce.”
In my search I have found no such inattention to the guaranty of “due process of law,” as evidenced, by this enactment. Cases may be found authorizing prima facie presumption of guilt upon relevant indicatory proof, but the enactment under consideration does not provide for a mere presumption from indicatory proof but makes reputation of having engaged in an illegal business or occupation sufficient evidence to convict an accused of the crime of being engaged in an illegal business or occupation. The legislature, in enacting laws, must heed the provisions of the Constitution, for the Constitution is the law of laws, and the courts, in construing legislative enactments, must enforce constitutional provisions.
In Sarah Way’s Case, 41 Mich. 299, it was said:
“The law of the land must be accepted by every one as the only rule which can be allowed to govern the liberties of citizens, whatever may be their ill desert. ’ ’
In People v. Micalizzi, 223 Mich. 580, 582, Mr. Justice Fellows, speaking for the court, said:
“We are not concerned with the guilt or the innocence of this defendant. We are concerned with whether his constitutional rights have been invaded. Constitutions were written to be obeyed. Their provisions are mandatory. They protect the humblest as well as the powerful, the meanest as well as the upright.”
What is meant by prima facie evidence?
In Purity Ice Cream & Dairy Co. v. Adams Express Co., 217 Mich. 593, we defined a prima facie case as:
“A case made out by proper and sufficient testimony; one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side,” citing 31 Cyc. p. 1172.
‘ ‘ Prima facie evidence is such as in the judgment of the law is sufficient to establish the fact, and, if unrebutted, remains sufficient for that purpose.” Atlantic Land & Improvement Co. v. Lee, 93 Fla. 579 (112 South. 549).
The same holds true in criminal cases.
“Prima facie evidence is that degree of proof which, unexplained or uncontradicted, is alone sufficient to establish the truth of a legal principle asserted by a party.” State v. Kline, 50 Ore. 426, 432 (93 Pac. 237).
In People v. Nemer, 218 Mich. 163, 166, it was held:
“Reputation is based on the ‘speech of people,’ ‘what people say of a man.’ ”
The term “reputation” in the statute specially refers to criminal activity in the particular alleged in the complaint, and the legislature evidently intended the term “reputation” to apply to the common opinion, or that in which there is general concurrence — in other words, general reputation or character attributed. Such evidence is eminently a matter of hearsay.
It is urged that an emergency exists, and the end in view justifies the means provided by this statute. Like justifying of tyranny has left its sinister Mot upon the pages of history and the lesson taught has led to constitutional provisions intended to withstand recurrence thereof.
The Constitution of this State, article 2, § 16, provides:
“No person shall # * * he deprived of life, liberty, or property, without due process of law.”
In People v. Dickerson, 164 Mich. 148 (33 L. R. A. [N. S.] 917, Ann. Cas. 1912 B, 688), the court said of this provision:
“From an examination of the authorities, it is apparent that this constitutional guaranty simply preserves to the people rights which had existed for centuries, and which had been enjoyed according to the course of the common law. It means such an exercise of governmental power as is sanctioned by settled maxims of law, under such safeguards for the protection of individual rights as those maxims prescribed. ’ ’
The court quoted, with approval, the definition of “due process of law,” given by Daniel Webster, in the Dartmouth College Case, 4 Wheat. (17 U. S.) 518, 581. No better definition can be found and we again quote it :
“By the law of the land is most clearly intended the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. ’ ’
In the Dickerson Case it was also stated;
“It becomes pertinent, therefore, to ascertain what settled maxims, and safeguards — what. ‘general rules which govern society’ — are applicable to a criminal prosecution such as is here under consideration. ’ ’
The court held unconstitutional an act authorizing the trial court, in murder cases, to select expert witnesses.
In the case at bar the statute selects one instance, denounced as a misdemeanor, strikes down two rights which had existed for centuries, both sanctioned by settled maxims and the settled course of the common law. The statute dignifies into legal proof of guilt evidence of reputation that an accused has offended by engaging in an illegal occupation or business. The legislature may not declare reputation prima facie evidence that an accused has committed a crime without showing that a crime has, in fact, been committed. This act relieves the prosecution from establishing guilt of an accused beyond a reasonable doubt, for, unless the accused enters upon a defense, the prima facie presumption authorizes a conviction, and his right to the presumption of innocence, which is the most universal and strongest presumption known to law, is accorded no place for consideration.
The statute brings conflict of presumptions. The statute creates prima facie evidence of guilt out of proof of reputation.
American law accords an accused the presump,-' tion of innocence, and due pfocess of law requires that, before a conviction be had, this presumption must be removed by evidence establishing guilt beyond a reasonable doubt.
“ ‘Due process of law’ does not mean ‘the general body of the law, common and statute, as it was at the time the Constitution took effect; for that would deny to the legislature the power to change or amend the law in any particular. Neither, on the other hand, does “the law of the land” or “due process of law” mean anything which the legislature may see fit to declare to be such; for there are certain fundamental rights, which our system of jurisprudence has always recognized, which not even the legislature can disregard in proceedings by which a person is deprived of life, liberty or property. * * * Although the legislature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it cannot remove certain ancient landmarks, or take away certain fundamental rights which have been always recognized and observed in judicial procedures.’ When the law of the land is spoken of, ‘undoubtedly a preexisting rule of conduct’ is intended, ‘not an ex post facto rescript or decree made for the occasion. The design’ is ‘to exclude arbitrary power from every branch of the government; and there would be no exclusion if such rescripts or decrees were to take effect in the form of a statute.’ ” 2 Cooley’s Constitutional Limitations (8th Ed.), p. 737.
“Due process of law” is from the Roman Maxims and the re-affirmation of this in Magna Charta. Hurtado v. California, 110 U. S. 516 (4 Sup. Ct. 111).
The enactment in question is unconstitutional.
The appeal is allowed, and defendants admitted to bail.
McDonald, C. J., and Potter and Butzel, JJ., concurred with Wiest, J. Fead, J., concurred in the result. | [
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Wiest, J.
November 5, 1928, John N. Day, while driving across defendant’s railroad track in the city of Alma, was struck by a train and died three days later of injuries so received. November 21, 1928, Flora E. Day was appointed administratrix of his estate, and January 9, 1930, brought this action in behalf of the estate to recover damages. The case came to trial in the circuit court February 25, 1930, and resulted in a directed verdict in favor of defendant. Upon review in this court there was reversal and a new trial granted in December, 1930. Day v. Railway Co., 252 Mich. 589. Mr. Day died intestate, leaving an estate consisting of personal property. December 28, 1928, the administratrix filed an inventory and appraisal of the estate and her final account and asked for distribution and her discharge, and the same day, the heirs at law waiving notice, the account was allowed, and the estate assigned by the probate court. February 25, 1930, the probate court found the estate administered, discharged the administratrix, and the proceedings were enrolled on April 19, 1930.
It will be noticed that February 25, 1930, was the day that verdict was directed in the circuit court in favor of defendant. 'However, review was prosecuted, and, upon reversal with a new trial, the administratrix moved the probate court to reopen the estate, revive her appointment as administratrix, showing in support thereof that the suit was not at an end and she was mistaken in not mentioning the matter in the final account and in having the administration closed and distribution made. The probate court reopened the administration of the estate and revived the appointment of the administratrix. Thereupon plaintiff moved the circuit court to revive and continue the case against defendant and permit her to prosecute. The court granted such permission but without prejudice to defendant’s rights. Later defendant moved to set aside the order and dismiss on the grounds that the suit abated on February 25, 1930; that the statute of limitations . (3 Comp. Laws 1929, § 13976) barred prosecution; the estate had been administered, closed, and proceedings therein enrolled and the orders of the probate and circuit courts were null and void.
The circuit judge was of opinion that the statute of limitations had run before the last appointment of Flora E. Day as administratrix, and dismissed the suit.
The ■ second appointment of plaintiff as administratrix constituted her an administratrix de bonis non. The words “de bonis non” were not essential. 1 Chatterton’s Probate Law, § 957. As administratrix de bonis non she was entitled to act at the point where she left off under the former discharge.
The statute, 3 Comp. Laws 1929, § 15597, has abrogated the common law want of privity between an administrator de bonis non and his predecessor, and the two administrations are no longer to be considered separate and distinct and independent in this jurisdiction.
That statute provides:
“An administrator, appointed in the place of any former executor or administrator, for the purpose of administering the estate not already administered, shall have the same powers, and shall proceed in settling the estate in the same manner, as the former executor or administrator should have had or done; and may prosecute or defend any action commenced by or against the former executor or administrator, and may have, execution on any judgment recovered in the name of such former executor or administrator. ’ ’ 3 Comp. Laws 1929, § 15597.
“If an estate has been partially administered prior to discharge of general administrator, the new administration is an ‘administration de bonis non/ .since the term or title is merely an abbreviation of ‘de bonis non administratesmeaning ‘of the goods not administered.’ ” McNair v. Howle (syllabus), 123 S. C. 252 (116 S. E. 279).
“It is usually held that the approval of the final report of an executor or administrator and his discharge is not conclusive that the estate has been wholly settled so as to preclude the appointment of an administrator de bonis non.” 24 C. J. p. 1144,— citing Cole v. Shaw, 134 Mich. 499.
In order to appoint an administrator de bónis non, it is essential that there has been a previous grant of letters and that the previous incumbency has actually ended. 24 C. J. p. 1142.
A pending action in the name of the original administrator is unadministered assets authorizing appointment of an administrator de bonis non. 24 C. J. p. 1146.
The grant of administration de bonis non is a continuation of the same office.
There has been no sleeping on rights in this case, but activity in pressing the claim of liability against defendant and participation by defendant in opposition thereto, and it cannot be held that, under such circumstances, the statute of limitations was operative.
The circuit judge is directed to vacate the order dismissing the suit. Plaintiff will recover costs.
McDonald, C. J., and Clark, Potter, Sharpe, North-, Pead, and Butzel, JJ., concurred. | [
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] |
Potter, J.
Anna K. McLaughlin died August 5, 1930, testate. Michael O’Brien and James E. McLaughlin were named coexecutors of her will, accepted said trust, filed a bond as such, and entered into the discharge of their duties. Michael O’Brien is a practicing attorney in Alpena. The estate of the deceased consisted of both real and personal property. The real estate was valued at $7,200; the personal property at $11,842.91. Claims were presented against her estate (.amounting to $11,932.82. Among the claims presented was one by James E. McLaughlin, husband of deceased and coexecutor of her estate, in the sum of $2,216.82; and a claim by Helen Barry Brooks, a niece of deceased, in the sum of $8,700. January 20, 1931, the claim of James E. McLaughlin was allowed by commissioners on claims, in the sum of $1,976.82, and the claim of Helen Barry Brooks in the sum of $5,000. The probate court made an order for payment of these claims within 30 days from that date. The residuary legatees under the will of deceased did not know of the presentation of these claims until after they were allowed and paid. The éstate was not represented before the commissioners on the hearing of claims. January 21, 1931, the executors paid all claims including the two just mentioned, and January 22, 1931, made and filed their final account. After learning of the allowance of these two claims, Thomas Barry and Richard Barry, residuary legatees, January 30, 1931, served a request and demand upon the executors to appeal from the action of the commissioners on claims. Upon failure of the executors of the estate to appeal, they caused an appeal to be taken to the circuit court. James E. McLaughlin repaid to the estate the sum of $1,976.82 which he had received without contest. A jury on trial in circuit court, on the appeal from the allowance of the claim of Helen Barry Brooks, allowed the same in the sum of $1,100. The result of this appeal was certified to the probate court. The final account of the executors filed January 22, 1931, was corrected by reducing the credits in the sum of $5,876.82. The account as corrected was allowed August 31, 1931. The residuary legatees attempted to secure repayment to the estate from Helen Barry Brooks of the sum of $3,900 which the executors had paid to her. Various meetings were held in the probate court, promises of restitution are alleged to have been made. All these failed to produce the money. April 14, 1932, the probate judge for Alpena county commenced suit against the executors and their surety for the use and benefit of Thomas Barry and Richard Barry, residuary legatees, to recover the amount due from said executors. July 25, 1932, nearly 11 months after the order allowing the corrected final account had been allowed and more than three months after the commencement of suit by the probate judge, the executor, Michael O’Brien, filed his petition for leave to appeal from the order of the probate court of August 31, 1931. Before that he had attempted to make settlement with the residuary legatees and had succeeded in so doing with one of them. With the others he was unable to settle. The granting of delayed appeals from the action of the probate court is regulated by 3 Comp. Laws 1929, § 15969. The petitioner for such delayed appeal must show he is without fault on his part and that justice requires a revision of the case.
The circuit court declined to grant applicant a delayed appeal. Its action may be reviewed only by mandamus. This case is here on mandamus, called an appeal, to set aside the order of the circuit court and direct that a delayed appeal be allowed. Hamler v. Shiawassee Circuit Judge, 227 Mich. 235; In re Quinlan’s Estate, 250 Mich. 684. The application, under the statute above cited, for a delayed appeal, is addressed to the discretion of the circuit court; Smith v. Wayne Circuit Judge, 82 Mich. 93; Sanborn v. St. Clair Circuit Judge, 94 Mich. 519; Clark v. Berrien Circuit Judge, 194 Mich. 180, and before this court may set aside the order of the circuit court, such arbitrary and unreasonable action by the circuit court, in denying a delayed appeal, must be shown as to amount to a clear abuse of discretion. Small v. Olds, 151 Mich. 111; McKay v. Macomb Circuit Judge, 222 Mich. 244; Hamler v. Shiawassee Circuit Judge, supra; Taylor v. Bay Circuit Judge, 234 Mich. 363; Conroy v. Jacobs’ Estate, 237 Mich. 102; Goik v. Wayne Circuit Judge, 249 Mich. 461; In re Quinlan’s Estate, supra. This has not been done. We cannot, therefore, interfere with the action of the circuit court, whose order is affirmed, with costs.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
The question in this case is whether we should direct the circuit court, in a foreclosure of an ordinary real estate mortgage containing no assignment of rents and profits under Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 13498, 13499), and upon which premises there is a second and trust mortgage containing an assignment of rents and profits under the mentioned act, and operative by default and notice as required by that act, to appoint a receiver to collect the rents and profits and apply the same in payment of delinquent taxes and to redeem, under notice, from a tax title.
The court below refused to appoint a receiver. Both mortgages were executed in March, 1928. The trustee under the second mortgage is collecting the rents and profits from the premises and not applying any part thereof in payment of the delinquent taxes or to redeem from the tax title.
Plaintiff cites Nusbaum v. Shapero, 249 Mich. 252. That case involved no second and trust mortgage. The second mortgagee is exercising contract security rig’hts sanctioned by statute, and the first mortgagee may not, without such a contract, he accorded the priority it seeks. If the first mortgage is in the usual form, the mortgagee may pay the tax, redeem from the tax title, and add the sum so paid to the amount due. In the second mortgage, rights of the mortgagor not within reach of any provision of the first mortgage were surrendered.
Affirmed, with costs against plaintiff.
McDonald, C. J., and Potter, Sharpe, North, and Fead, JJ., concurred. Butzel, J., did not sit. Clark, J., took no part in this decision. | [
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] |
McDonald, C. J.
The Kirsch Manufacturing Company was engaged in the business of manufacturing drapery hardware at Sturgis, Michigan. The plaintiff, Henry Backus, owned 1,000 shares of its common stock. His wife, Ada T. Backus, owned 845 shares. In June, 1928, they sold their stock to defendant, Charles W. Kirsch, president of the company,. at $20 a share, for.which they were fully paid in cash. In December, 1928, they brought separate suits in equity for rescission of the sale on the ground of fraud. The suits were consolidated and tried together in the circuit court of Wayne county. The trial court found fraud as alleged by the plain .tiffs, but as the defendant had sold the stock and restoration was impossible, a decree was entered in favor of the plaintiffs for money damages. The defendant has appealed, and asks reversal on the ground that no fraud was shown, that no damages were proven, that at the time of sale the stock was worth no more than defendant paid, and that the equity court had no jurisdiction to entertain the cause, because the only relief - obtainable was for money damages.
1. Did the court have jurisdiction? Courts of law and of equity have concurrent jurisdiction in cases involving fraud; but the equity court will turn a deaf ear to a suitor who can obtain adequate redress for the wrong complained of in an action at law. It is only when equity powers are necessary to obtain the relief sought that a court of equity will entertain jurisdiction. The bill in this case alleges ground for equity jurisdiction. It charges fraud in the sale, prays that it be annulled and the stock be restored to them. It states a case for rescission. They asked for restoration, and that could only be obtained by a suit in equity. But restoration became impossible by the action of the defendant in transferring the stock to a third party after commencement of the suit. No argument is necessary to demonstrate a fact so plain that the defendant could not thus oust the court of jurisdiction. But the defendant claims that restoration was impossible at the time the suit was commenced because he' had surrendered the stock and had it reissued to him with other shares; that it had lost its identity as Backus stock and could'not be restored, and that, therefore, the plaintiffs’ only remedy was in an action at law for damages. To sustain this contention he cites Gray v. Trick, 243 Mich. 388. In that case stock fraudulently obtained from tbe plaintiff had been sold by the defendant to a third party and the plaintiff sought to have it replaced with other stock of the same class and character. It is plain that he was not entitled to stock which he never owned and which was not the subject of the sale, so the court confined .his relief to money damages. In the instant case the defendant did not sell the stock before the suits against him were commenced. He merely changed the certificates. He still owned the stock and could have restored it. So in the beginning the court of equity had jurisdiction and could retain it for the purpose of assessing damages as incidental to the relief sought by rescission. The defendant’s contention has no merit.
2. Was the sale induced by fraud ? The Kirsch Manufacturing Company was organized with a small capital in 1907 to engage in the business of manufacturing and selling fixtures for window draperies. From the beginning defendant, Kirsch, has been its president and managing director. Through his efforts it is said to have become the largest manufacturing establishment of its kind in the world, with an authorized capital of $1,000,000 and an asset value of $3,000,000. It was very prosperous and paid large dividends. Mr. Backus was an early stockholder and was well pleased with his investment. He had no part in the management of the business and did not concern himself with its financial condition. He had confidence in the business ability and integrity of Mr. Kirsch. Dominating and controlling the business as he did, Mr. Kirsch had knowledge of material matters not known to Mr. Backus and which would not appear from an examination of the books. In these circumstances he stood in a fiduciary relation to the stockholders, and, when dealing for the purchase of their stock, was hound to impart to them any knowledge he had of facts affecting its value. Bollstrom v. Duplex Power Car Co., 208 Mich. 15; Buckley v. Buckley, 230 Mich. 504.
Having in mind the rights of the plaintiffs as stockholders and the duty of the defendant as chief corporate officer of the company, in considering the evidence as to the allegations of fraud, we cannot avoid the conclusion that he withheld information affecting the value of the stock which he was honestly bound to impart, and that he made material representations which do not accord with the facts. The record shows that Mr. Kirsch owned 60 per cent, of the stock, and, at the time he bought of the plaintiffs, was negotiating with investment brokers for a complete reorganization of the company on a plan that would enhance the value of the stock. To reach this result he set about securing an 85 per cent, control. On June 18,1928, he addressed letters to various stockholders, including the plaintiffs, in which he stated that he had definitely decided to retire from the business, and intended to sell the major portion of his stock; that he felt a moral responsibility for the safety of his stockholders’ investments and therefore
“For my own satisfaction and to be relieved by our stockholders of further personal responsibility for the safety of their investments, I am offering you $20 a share for your Kirsch stock.”
Apparently this letter was intended to create a fear in the minds of the plaintiffs that under different management their investment might not be safe. In view of the plaintiffs’ confidence in the integrity of Mr. Kirsch and his demonstrated ability to carry on the business successfully, the representation that he was going to sell the major portion of his stock and relinquish control of the business must have been a persuasive inducement for plaintiffs to sell their stock. The trial court found, and we think correctly, that defendant did not intend to sell the major portion of his stock and relinquish control of the business; that his real purpose was to secure greater control in the reorganized corporation. So that there was not only an actual misrepresentation of his motive in buying the stock but a concealment of future plans which might materially enhance the value of the stock. The plaintiffs were entitled to be told of the intended reorganization of the company and the future possibilities of the business. If he felt the necessity of giving a motive for buying the stock, he should have given it correctly and withheld nothing of material value. He also stated in his letter that the book value of the stock was about $15 a share. In his testimony he admitted that when he made this statement he had in his possession a recent appraisal of the American Appraisal Company showing the book value to be $21.58 a share. This was not known to the plaintiffs and would not have been disclosed to them if they had examined the books at that time. In respect to the book value there was both a misrepresentation and a concealment of a material fact. Also in this letter the plaintiffs were advised that in considering the value of the stock not to be influenced by the dividends recently paid because—
“These dividends were paid from the earnings over a period of years, and do not reflect the earnings of the past few years.”
When the truth of this statement was challenged in his cross-examination, the defendant said:
“Well, that statement might have been misleading, but it was not intended to be so, I am sure.”
It was misleading because it was not true. The earnings on which the last dividend was declared were greater in 1928. Notwithstanding that fact, well known to him, the defendant, testifying to an oral representation claimed by Mr. Backus, said:
It was “also possible that I told him that our earnings were. down on account of the reduced volume of sales.”
After receiving this letter from defendant, Mr. Backus wrote to Eugene H. Eider, secretary of the company. Eider was a friend of Backus. He had interested him in making his original investment in the stock. In the letter Backus said:
“I am just in receipt of a letter from Mr. Kirsch asking me to sign a paper stating whether I will or will not sell my stock in the Kirsch Company. I, of course, am at a loss to understand just why, and thought that perhaps you could in confidence give me something of an idea of what is going on. I will appreciate anything you may tell me. I have the highest opinion of both Mr. Kirsch and the Kirsch Company, and, of course, dislike to dispose of my stock unless it is best.”
When Mr. Eider received this letter he took it to Mr. Kirsch and asked him how to answer it. Mr. Kirsch told him what to say in answer, and approved of what was written. So that any representations in the letter affecting the value of the stock were representations of Mr. Kirsch. More than that, in dictating how this letter should be answered, Mr. Kirsch wrongfully interfered with the attempt of Mr. Backus to make an independent investigation. The answer, in substance, stated that Mr. Kirsch had made him a good offer for the stock; that it was Mr. Eider’s honest opinion he should accept it, and that no dividends would be paid for, two years be cause a new building was being erected wbicb would consume two years’ earnings, or about $200,000. This statement gave Mr. Backus the impression that the earnings of the company were about $100,000 a year, whereas in truth they were $350,000 and upwards.
These representations it is claimed were repeated and enlarged upon in an oral interview between defendant and Mr. Backus, but it is not necessary to pursue the subject further. We have mentioned sufficient to justify a rescission of the sale.
3. The third and final question relates to the assessment of damages. The stock was not listed. It had no market value. There was no dealing in the stock. Defendant introduced evidence of an occasional sale for less than the price paid by the defendant. This testimony is of but little help in ascertaining the value. The plaintiffs’ expert witness, Martin, estimated the value to be about $35, but as he seems to have been influenced in part by market quotations of the new Kirsch Company stock six months after the sale, we are not inclined to accept his estimate as the correct value. The defendant himself placed a cash value of $30 a share on the stock at the time he transferred it to the new corporation. That was the price he expected to get on the reorganization of the company. He had offered that price to some other stockholders. Considering the book value of the stock, the prosperous condition of the business, its volume of sales and net earnings, we are of the opinion that $30 a share was a fair value at the time of the sale by the plaintiffs. The court fixed the value at $32 a share. In respect to the damages the decree is modified. In other respects it is affirmed.
The defendant will have costs.
Clark, Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff association alleges in its bill of complaint that the defendant is illegally engaged in the practice of law in the State of Michigan; and asserts incident thereto the defendant has caused advertisements to be printed, has sent written communications to its Michigan policyholders, and has represented to them and other residents of Detroit to whom defendant sought to sell insurance that it would render to them certain specified services which plaintiff alleges constitute the practice of law notwithstanding defendant is not legally licensed to practice law in this State. Plaintiff seeks to have defendant enjoined from continuing such practice. After the suit was at issue plaintiff caused to be served upon the president, vice-president, and executive vice-president of the defendant company a subpoena duces tecum requiring each of them to appear before the court to testify in the cause and to bring books, records, files, correspondence, and various other papers and memoranda of the defendant company. The portion of the subpoena duces tecum specifying the items to be produced is printed in the margin hereof. Upon being served with the sub poena, defendant filed a motion asking the court that it be recalled, canceled, and quashed. Specific objections were made to the subpoena, among which were the following: That the court had no jurisdiction to issue it in its present form, that to enforce it would violate the constitutional rights of defendant, would compel the defendant to incur great, unnecessary, and unreasonable expense, expose its records to danger of loss and injury incident to being brought into court, that confidential matters would be exposed, and that use of the items demanded as evidence against defendant would be illegal, unjust, and oppressive. After hearing the respective parties, the trial court denied defendant’s motion. Permission being granted, it has brought this appeal in the nature of mandamus to compel the circuit judge to grant the relief sought in defendant’s motion.
“The power of a court to compel the production of private papers can only be exercised where a person has books containing evidence material to the issue before the court, and where the necessity for their production, and the reasonableness of such action, is shown; and, until this foundation is laid, until their relevancy or character is specified, an order 'for their production in a case is a violation of the constitutional protection of the one compelled to produce them. An order limiting the examination of a party’s books to pertinent matters does not infringe the guaranty. * * *
“The question of whether the demand so exceeds the limits of proper investigation as to amount to unreasonable search is always a judicial one.” 56 C. J. p. 1170.
See, also, 28 R. C. L. p. 420.
Primarily this is a matter which has to do with the administration or conduct of the affairs of the trial court. Unless appellant’s rights have been invaded, or unless an abuse of discretion on the part of the trial court is shown, the appellate court should not interfere. The right of mandamus .sought by appellant is not a matter of right but rather one of grace. Lapham, v. Wayne Circuit Judge, 243 Mich. 154; Burgess v. Jackson Circuit Judge, 249 Mich. 558. In the absence of a showing indicating a reasonable necessity therefor, it should not be issued. While we think it clearly appears that this subpoena duces tecum is too broad in its scope and altogether too indefinite in its demands, it would be ill-advised for this court to interfere with the conduct of proceedings in a trial court until defendant has made a reasonable effort to comply with the subpoena served upon it. It is only fair to presume that notwithstanding the trial court declined to quash the subpoena nonetheless no more than a reasonably fair effort to comply with its demands will be required. In view of the pleadings in the case, there can be little, if any, uncertainty as to the type or character of defendant’s records which plaintiffs are demanding it produce. If a reasonable effort is made by defendant to comply with the subpoena, it is altogether probable that notwithstanding such effort in the first instance does not fully comply with the demands of the opposite party or satisfy the court as being a compliance with its process, further opportunity for compliance will be granted without penalty. Viewed in this light, we think there is no occasion for issuing the writ. It is therefore denied, but without costs to either party.
McDonald, C. J., and Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision.
‘ ‘ 1. All books, records, files, correspondence, papers, and memoranda (including copies of all thereof) of the American Life Insurance Company showing and/or relating to wills, insurance trust, and other trust agreements, partnership agreements, stock elimination agreements, legal documents (other than insurance policies) and •estates analyses, so-called, prepared and/or drafted for and/or suggested to policyholders of said company and/or prospects contacted by said company, its agents, employees, officers, attorneys, or representatives.
“2. All records of insurance issued and/or placed by said company, its agents, employees, officers, attorneys, or representatives in connection with any plan involving the preparation of any will, insurance trust, other trust agreement, partnership agreement, stock elimination agreement, or other legal document (other than insurance policies) referred to in division (a) supra.
‘ ‘ 3. All letters to said company from persofis seeking, or inquiring about, or availing of, the so-called estates analyses and/or estates department service offered by said company and copies of all letters written by said company to such persons.
"4. All records of said company showing the names and addresses of all agents, solicitors, and representatives of said company and the period of their employment by said company during 1931, 1932, and 1933.
"5. All correspondence between said company and its agents, solicitors, and representatives relating to the documents and instruments referred to in division 1 hereof.
"6. Letter from Edward A. Kemp, secretary of the Detroit Bar Association, to Clarence L. Ayres, president of said company, dated August 4, 1932.
“7. All records of said company showing the period the advertisement (Exhibit 1 to the bill of complaint herein) was run and period the blotter (Exhibit 2 to said bill of complaint) was distributed by said company.
"8. All minutes of all meetings of the officers and directors of said company during 1930, 1931, 1932, and 1933.
"9. All reports of the Estates Department and Estates Analyses Department during the years 1930, 1931, 1932, and 1933.
"10. All reports of the agents, employees, officers, attorneys, and representatives of said company during 1930, 1931, 1932, and 1933, relating to the instruments and documents referred to in division (1) hereof and to the insurance referred to in division (2) hereof.
"11. All records and copies of letters and papers of said company containing recommendations by or in behalf of said company to policyholders of said company or insurance prospects.” | [
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] |
McDonald, J.
The first question to be considered in this appeal is: Which of the parties, the plaintiff, Wallace, or the defendant Detroit Trust Company, has the right to foreclose a trust mortgage given by Jack Golden to the Guaranty Trust Com pany of Detroit to secure a bond issue of $15,000? When Mr. Golden defaulted, the Guaranty Trust Company, trustee, was in the hands of the Detroit Trust Company as receiver, appointed by the circuit court on application of the State banking commissioner under 3 Comp. Laws 1929, § 12028. In an order subsequently made by the court the receiver was given authority to foreclose the trust mortgage and to take such other action as was necessary to preserve the trust property while the business of the trustee was being liquidated. So the Detroit Trust Company claims the right to foreclose by virtue of an order of the court. The plaintiff bases her right to foreclose on a provision of the trust mortgage which provides that a bondholder may enforce the mortgage in case of refusal or failure or inability of the trustee to act. The question arose on motion to dismiss a cross-bill filed by the Detroit Trust Company in an action brought by the plaintiff to foreclose the mortgage. When the plaintiff filed her bill, the court made an order permitting her to add the Detroit Trust Company, receiver, a party defendant to the suit. The receiver filed an answer and cross-bill in which it denied the «right of the plaintiff to maintain her suit,' and, as affirmative relief, prayed for the foreclosure of the mortgage. The plaintiff moved to dismiss the cross-bill on the ground that it alleged no interest in the subject-matter and showed no right to foreclose the mortgage. The motion was denied, and the plaintiff appealed.
Subsequent to the proceedings above related, the Detroit Trust Company resigned from the trust, and the court appointed the Union Guardian Trust Company a successor trustee to the Guaranty Trust Company. Prom this order the plaintiff also appealed. Both appeals are heard together in this court on the same record and will be disposed of in one opinion.
The questions involved require a consideration of equity jurisdiction over trusts as applied to the following facts: The Guaranty Trust Company of Detroit, trustee, had become insolvent. On application of the banking commissioner the Detroit Trust Company had been appointed receiver to liquidate its affairs. As such it was doubtful of its authority in respect to the execution of the trust. There was default in payments of principal and interest on the mortgage, and other trust matters required attention. The bondholders had taken no action. The trustee could not act. It was still trustee, but could not function because it was insolvent and its property and business were in the hands of a receiver. No one interested was making any move to protect and preserve the trust property. Confronted with this situation, the receiver petitioned the court for authority to act temporarily in place of the trustee in its trust capacities. The court made an order in accordance with the prayer of the petition believing, as he said, that such action was “necessary and desirable for the orderly and gradual closing and liquidation of the business and assets of said Guaranty Trust Company of Detroit, and for the protection and preservation of the assets and interests of the various trusts in possession and control of said Guaranty Trust Company of Detroit as trustee,” etc. The order was to continue operative until the further order of the court or for such time as was reasonably necessary to liquidate the business of the trustee.
The validity of this order presents the question involved in the first appeal. It is contended that the court had no jurisdiction to make the order on peti tion of the receiver in the suit brought by the banicing commissioner; that all the jurisdiction it had in that case was derived from the statute which conferred special and limited jurisdiction only, and that no power was given the court to vest the receiver with the fiduciary capacities of the insolvent trustee.
We cannot agree with this contention. The statute directed the banking commissioner to apply to a court of “competent jurisdiction” for the purpose of accomplishing an orderly and complete liquidation of the trust business. In conferring this jurisdiction on the court, the legislature intended that there should go with it the power to do every thing incidentally necessary to accomplish the purpose of .the statute. Having in obedience to the statute taken over the custody and control of the trust company and all of its business and property, the court could not ignore the fact that it was necessary to take some action to preserve and protect the trust assets during liquidation. For this purpose it might have appointed a new trustee, but it chose the simpler course of temporarily vesting the trustee’s power in the receiver. In this it did not exceed its jurisdiction. We do not say that, if not prohibited by the statute, the court could not have applied its general jurisdiction so far as applicable to protect the trusts. But that question we need not discuss. We only hold that the court had jurisdiction by intendment of the statute to order the receiver to protect the trust property during liquidation. If it had not such jurisdiction, the purpose of the statute might be defeated and the legislature did not intend such a result.
The court took upon itself temporarily the execution of the trusts. It designated the receiver, already an officer of the court, to act for it and under its direction. We think its authority cannot rightly be questioned.
Nor is there any doubt as to the right of a bondholder to act when the trustee refuses, fails, or is unable to do so. The theory upon which the bondholders are given the right to sue is that they have no other means of redress. In the instant case, when the plaintiff filed her bill to foreclose the mortgage, the court had already taken over the execution of the trust and had directed the receiver to foreclose. It was not necessary for her to take any action. In view of the existing circumstances, she had no right to file her bill. The court did not err in refusing to grant her motion to dismiss the receiver’s cross-bill.
The question in the second appeal involves the authority of the court to appoint a successor trustee in the receivership case so-called.
The trust instrument made no provision for a modus operandi in case of the trustee’s inability to function. The receiver who had been authorized to act for the trustee resigned its trust and petitioned the court to appoint the Union Guardian Trust Company as successor trustee. This was done, and it is claimed that the court had no authority to make the appointment.
The right and duty of the court in the exercise of its general equity jurisdiction to appoint a successor trustee is not questioned; but it is claimed that this can only be done in an independent proceeding instituted by bill of complaint. In support of this contention, Ledyard’s Appeal, 51 Mich. 623, is cited and relied on. In that case it was held that proceedings to appoint a successor trustee must be instituted by bill of complaint instead of by petition, so that all parties interested could be brought in, and, unless this was done, the court acquired no jurisdiction. There is no statute or rule of court governing the practice. We assume that any proceeding by whatever name it may be called which requires notice to the parties concerned and furnishes them an opportunity to be heard is sufficient to give the court jurisdiction. That course was followed in the instant case. When the petition for the appointment of a successor trustee was filed, the court issued an order to show cause why the resignation of the receiver from the trust should not be accepted and a suitable person appointed as successor trustee. The order provided for substituted service by publication in the Detroit Free Press and for personal service by mail. Publication was had as directed and copies of the order to show cause were mailed to all persons who were shown in the books and records of the original trustee to be interested. The plaintiff had notice, appeared, and was heard. The bondholders’ protective committee appeared by counsel and consented to the proposed action. We think these proceedings were in substantial compliance with the practice approved in Ledyard’s Appeal, supra, and gave the court jurisdiction to appoint the successor trustee.
What we have said as to the jurisdiction of the court to vest the receiver with temporary authority to administer the trusts applies as well to its jurisdiction to appoint a new trustee, with the difference that, in the matter of appointing a new trustee, all parties having any interest are entitled to be heard and must have notice. In both instances the jurisdiction was granted by implication because the action taken by the court was necessary to the full exercise of the power expressly granted by the statute. It was necessary in order to conserve the trust property and protect the rights of interested parties during the liquidation to clothe the receiver with the fiduciary capacities of the trustee who was unable to function. It was later necessary to appoint a new trustee. In the action taken, the court exercised proper and necessary jurisdiction.
The orders appealed from are valid, and are hereby affirmed, with costs.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
George Yan Dellen was engaged in selling automobiles, and forged and sold chattel mortgages to defendant Fidelity Corporation. Officers of the corporation discovered the fraud, estimated loss thereby at $8,000, and immediately pressed the forger to make settlement. George Yan Dellen, on January 6, 1931, executed a chattel mortgage to the Fidelity Corporation, covering the stock of goods in a store owned by him at Hoytville; gave a real estate mortgage to the Fidelity Corporation, covering his Hoytville real estate; gave a warranty deed, in which he was joined by his wife, to Albert P. Theophile, covering the same property at Hoytville; and a bill of sale of the store stock of goods to Theophile. Theophile was merely serving in behalf of the Fidelity Corporation. Within a few days officers of the Fidelity Corporation found that the loss was $12,000 instead of $8,000, and insisted on further security. The local manager of the Fidelity Corporation went with George Yan Dellen to obtain the indorsements of John Yan Dellen, his wife, Jennie, and George Richardson, a brother-in-law, upon two notes of $2,000 each.
Plaintiffs, the indorsers of the notes, filed the bill herein to have their indorsements canceled on the ground that they were induced to sign the notes by fraudulent representations made by tbe manager of tbe Fidelity Corporation, and by fraudulent concealment of tbe fact that George Van Dellen bad turned over all of bis property to tbe Fidelity Corporation.
Tbe fraudulent representation was, that if plaintiffs indorsed tbe notes George Van Dellen would be allowed to conduct bis store or sell it during tbe sixmontbs period before maturity of tbe notes. Tbe fraud lay in tbe fact that at that time it was tbe fixed intention of tbe Fidelity Corporation to take possession of tbe store at once under tbe instruments given by George Van Dellen and close him out. At tbe time of making tbe indorsements tbe plaintiffs bad no knowledge of George Van Dellen’s criminal acts or of bis conveyances to tbe Fidelity Corporation, and believed that within six months, tbe period stated in tbe notes, be would be able to take care of tbe same.
Tbe circuit judge found tbe fraud, and canceled tbe indorsements.
Tbe Peoples State Savings Bank of East Jordan was made a defendant, and, by answer, claimed to be a bona fide purchaser of tbe notes, for value, before maturity, but, at tbe trial, offered no evidence.
Defendants invoke tbe well-known rule that fraud must relate to a present or pre-existing fact, and cannot ordinarily be based on unfulfilled promises or statements as to future events. Tbe rule, however, is not without exceptions.
In J. B. Colt Co. v. Cousino, 226 Mich. 518, it was said:
“This court has recognized an exception to tbe rule where tbe promise is made for tbe purpose of securing tbe execution of tbe instrument and without a then existing intention on tbe part of tbe promisor to keep it.”
See, also, Matteson v. Weaver, 229 Mich. 495.
In Crowley v. Langdon, 127 Mich. 51, it was held, quoting syllabus:
“A chattel mortgage given in consideration of the promises of a mortgagee to extend the time of payment of the debt secured, and to grant a further credit to the mortgagor, which promises the mortgagee at the time had a fixed intention not to perform, may be avoided by the mortgagor on the ground of fraud.”
See, also, Jones v. Brammer, 229 Ky. 649 (17 S. W. [2d] 736); Zuckerman v. Geller, 103 N. J. Eq. 145 (142 Atl. 344); Pease & Elliman, Inc., v. Wegeman, 223 App. Div. 682 (229 N. Y. Supp. 398); Feldman v. Witmark, 254 Mass. 480 (150 N. E. 329).
Defendants also contend that there was no legal obligation to inform plaintiffs of the true situation, and, therefore, no fraudulent concealment.
We need spend no time on this beyond stating that such concealment perfectly dovetailed with the active fraud practiced. It is manifest that, had the slightest disclosure been made, the indorsements would not have been procured.
The indorsements, having been procured by fraud practiced by the payee, the notes are void as to the indorsers, unless now in the hands of a bona fide purchaser for value and before maturity.
The issue, raised by the answer of the bank, called for some evidence of good faith on the part of the bank, and it was not sufficient for the president of the Fidelity Corporation, who was also a director of the bank, to merely testify that the notes were sold to the bank before maturity and for a valuable consideration. The notes were introduced in evidence and showed no indorsements thereon to the bank.
We said in Case v. City National Bank of Battle Creek, 240 Mich. 419, quoting syllabus:
“In a suit for the cancellation of a note and mortgage on the ground of fraud, where plaintiffs established fraud in the inception thereof, the burden of proof was upon defendant to show that it was a bona fide purchaser for value.”
The decree is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff filed a bill for specific performance of a parol contract to convey property by will. From a decree for defendants, plaintiff appeals. Plaintiff claims that Mrs. Berneice B. Powers, now deceased, in her lifetime a resident of Grand Rapids, made a contract with plaintiff to leave her real estate and personal property to plaintiff by will. There is no donbt of the power of a court of equity to decree specific performance of such a contract. Such contract must be clearly and satisfactorily proven, and, when contrary to the terms of a will properly executed existing at the time the contract is alleged to have been made and permitted to remain unrevoked until the death of decedent, such contract must be established by clear and convincing evidence. The proof tends to show plaintiff was something more than a mere roomer with Mrs. Powers. She performed household duties and manual labor. She acted as a companion to Mrs. Powers, who was a large woman, advanced in years,'suffering acutely from heart disease, living alone until plaintiff went to her home to live. Probably plaintiff, in rendering these services, expected to be compensated therefor. Mrs. Powers apparently attempted at least to keep account of plaintiff’s contributions. She hated to part with her 'money. This falls short of establishing by that clear and convincing evidence required the contract alleged. After the contract is claimed to have been made, plaintiff continued to work at her employment as a waitress in a restaurant, and to pay Mrs. Powers her room rent. It is apparent plaintiff solicited Mrs. Powers to will or deed the property in question to her. Mrs. Powers would not, according to her letters, agree to do it. Mrs. Powers had executed her will. She did not revoke it; did not deed plaintiff the property; made no written contract with her, but placed her will with a friend for safe-keeping, who produced, it and it was admitted to probate. There must be something more than a mere unexecuted intention to make a will. There must be a contract, a meeting of minds, an agreement based upon a sufficient consideration, clearly-proven, and such acts of part performance as to remove the parol agreement from the operation of the statute of frauds (3 Comp. Laws 1929, § 13411).
Questions relating to testimony equally within the knowledge of the deceased and waiver of the bar of the statute, by cross-examination, are raised, but not deemed important, because on the entire record we agree with the trial court, whose decree is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Fead, J.
Plaintiffs, representing themselves to be “residents and qualified electors” of Fordson school district, made application to the circuit court for Wayne county for leave to file an information in the nature of quo warranto, to determine the right of defendant to the office of member of the board of education of the district. The application alleged that the term of two members, one of whom was John S. Makemson, a plaintiff here but not so identified in the application for leave, expired on July 1, 1931; and that at an election held June 8th defendant had received the largest vote, had been declared elected, had taken office although not legally qualified, and was holding office without warrant of law. It was not alleged that Makemson nor any other person is entitled to nor claims the office which defendant holds.
Upon the application, heard ex parte, the circuit court of Wayne county, by Hon. Theodore J. Richter, circuit judge, made an order granting plaintiffs leave to file the information, which they later did. In the information plaintiffs represented themselves each to be “a resident, taxpayer and qualified elector” of the district. There was no allegation that any of them is entitled to or claims the office which defendant holds nor that they had leave of court to file the information.
On motion of defendant, the court, by Hon. Adolph F. Marschner, circuit judge, entered an order dismissing the information on the grounds that it shows that plaintiffs are not proper plaintiffs in the cause, and that the information does not set up a cause of action in quo warranto. This is mandamus to review the order of dismissal.
The question here was not involved in Ruppert v. Township School District, 252 Mich. 482.
In general, public welfare demands that a public officer shall not be called upon to defend his title to office against private attack. So, in construing the statute (3 Comp. Laws 1929, § 15297), this court early held that leave to a citizen to file the information may be granted only to one making a showing of title in himself.
“No private citizen has any right to compel an officer to show title until he has shown his own right in the first place to attack it.” Vrooman v. Michie, 69 Mich. 42.
See, also, Newman v. U. S., ex rel. Frizzell, 238 U. S. 537 (35 Sup. Ct. 881); 51 C. J. p. 336.
The remedy of another citizen to oust a usurping officer is by application to the prosecuting attorney or attorney general to file information on his relation, and, in case of refusal, to review the denial by mandamus. Lamoreaux v. Attorney General, 89 Mich. 146; Pound v. Attorney General, 119 Mich. 528.
In the application for leave to file information or to obtain action of the prosecuting attorney or attorney general, the showing of the right to the remedy must be “precise and positive.” Cain v. Brown, 111 Mich. 657; Boucha v. Alger Circuit Judge, 159 Mich. 610; 17 Enc. Pl. & Pr. 452.
The order granting leave to file the information, having been made ex parte, does not deprive defendant of any substantial right (Ferzacca v. Freeman, 240 Mich. 682), either as to subject-matter or as to procedure (State, ex rel. Page, v. Smith, 48 Vt. 14). Motion could have been made to set aside the order granting leave. 51 C. J. p. 329.
However, defendant’s motion made no direct attack upon the order granting leave, but was based exclusively upon the information as filed. The order of dismissal was wholly upon the insufficiency of the information. The record does not show that Judge Marschner assumed to set aside the order of Judge Eichter, and 3 Comp. Laws 1929, § 13671, is not involved.
The suit by a citizen, on leave of court, is a private action (Vrooman v. Michie, supra), and, therefore, the plaintiff must allege in the information the facts which give him the right to sue (51 C. J. p. 344; 22 R. C. L. p. 710; 17 Enc. Pl. & Pr. 461 et seq.; People, ex rel. Blomquist, v. Nappa, 80 Mich. 484, 487). Such allegations necessarily include the granting of leave to, and showing of title in, plaintiff. Lacking them, the information was insufficient.
Mandamus denied, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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] |
Fead, J.
In 1921, plaintiff purchased from defendant, a dealer in building materials, some stucco for use in building a home. She demanded Elástica, which had been recommended to her, and would not consider any other brand. She also refused to take Elástica unless she should get a 10-year guaranty with it. Whether defendant orally promised it would give her the guaranty personally or informed her the manufacturer would give it is in dispute.
The stucco was applied to plaintiff’s house. In November she complained that it had cracked. Representatives of the manufacturer and of defendant examined the house and the former told her the cracks were normal and would cause no trouble.
December 2d, defendant wrote plaintiff:
“After some little delay, we will be pleased to inclose herewith the usual 10-year guaranty issued by the Art Stucco Materials Company of Detroit, indorsed by ourselves, covering your residence at 24 Hamilton street.”
The inclosed guaranty was in the form of a'letter, signed by the manufacturer, to the general effect that the stucco would rigidly adhere, not split, peel off or disintegrate, and that the guarantor would furnish labor and material necessary to replace in good condition any material found defective. It was further stated that the guaranty was granted on condition that the manufacturer’s specifications had been rigidly adhered to, the principal features of which were set out. At the bottom and in the corner, below the words, “Building inspected and material applied in conformity to the specifications of manufacturer,” and the date, appeared “contractor or dealer,” with defendant’s name inserted opposite them, printed with a rubber stamp.
On receiving the guaranty, plaintiff made no objection to it, but paid the balance due, Two years later she complained to defendant that the stucco had peeled off the house, was defective in many respects, and demanded fulfilment of the guaranty. Defendant denied liability under the guaranty, negotiations for settlement were unsuccessful, and plaintiff brought this suit for damages, counting both on breach of implied warranty and upon the guaranty. On trial before the court, defendant had judgment.
Plaintiff contends defendant is liable on the guaranty because it was signed by defendant and because defendant had adopted it as a matter of law.
Defendant’s signature on the instrument was to a certificate of inspection and conformity of the work to the specifications of the manufacturer. The testimony upon the original conversations is not persuasive, partly because misunderstanding of the effect of words is readily possible. The facts that the writ ten guaranty is plain, that plaintiff had it in her possession for two years, conld not have misapprehended the purpose and effect of defendant’s signature thereto and made no objection to it, forbid a construction beyond its plain terms.
A retailer may make the manufacturer’s warranties his own by proper language in the contract of sale. 24 R. C. L. p. 158; Loxtercamp v. Lininger Implement Co., 147 Iowa, 29 (125 N. W. 830, 33 L. R. A. [N. S.] 501); Morris v. Trinkle, 91 Ind. App. 657 (170 N. E. 101); Ventura Manfg., etc., Co. v. Warfield, 37 Cal. App. 147 (174 Pac. 382). The rule is not applicable here because the certificate signed by defendant did not, by reference or otherwise, incorporate the guaranty.
It cannot be said that defendant was a party to the guaranty by execution or adoption.
Plaintiff further contends that, if not liable on the guaranty, defendant is liable for breach of implied warranty of merchantable quality of the stucco. The testimony is that the product sold plaintiff was not fit for building purposes.
2 Comp. Laws 1929, § 9454, the uniform sales act, provides:
“(2) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be óf merchantable quality.
.“ (4) In the case of a contract to sell or a sale of a specified article under its patent or other trade-name, there is no implied warranty as to its fitness for any particular purpose.”
It is evident that the sale comes under paragraph (4), and there was no implied warranty of fitness of the stucco for building plaintiff’s house. If, however, as seems to be the better rule (55 C. J. p. 763), this did not eliminate an implied warranty of merchantability, may plaintiff recover? Merchantable has many meanings (40 C. J. p. 647, 648), and, in some cases, may include the quality of being reasonably fit for the general purpose for which an article is manufactured and sold. Patterson Foundry & Machine Co. v. Detroit Stove Works, 230 Mich. 518. But, when applied to articles of general sale under patent or trade-names and by retailers, so that the implied warranty of fitness for a particular purpose is eliminated, the natural meaning is that it refers to such as are usually sold upon the market. So, defendant did not impliedly warrant that Elástica was good in any way or in any degree for plaintiff’s purpose. It only warranted that the stucco sold, plaintiff was merchantable, i. e., of the same quality as the Elástica generally sold. Breach of warranty was not shown by proof that the product was of poor quality without going further and showing that ordinary Elástica as generally sold was different. Foley v. Liggett & Myers Tobacco Co., 136 Misc. Rep. 468 (241 N. Y. Supp. 233); Polly v. Arony, 172 N. Y. Supp. 305; Philadelphia Motor Tire Co. v. Horowitch, 190 App. Div. 771 (180 N. Y. Supp. 661); Snelling v. Dine, 270 Mass. 501 (170 N. E. 403); Appalachian Power Co. v. Tate, 90 W. Va. 428 (111 S. E. 150).
There was no testimony that any Elástica had any merit for any purpose nor that the product sold plaintiff differed from the stucco generally distributed as Elástica.
Judgment affirmed, with costs. .
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Each of -these three consolidated cases was brought by plaintiff for the purpose of setting aside and canceling a gift inter vivos by plaintiff’s father, Henry F. Thon, to plaintiff’s sister or to her husband. Plaintiff alleges the gifts are invalid be-, cause they were procured by undue influence exerted on his father at a time when the latter was physically and mentally enfeebled. From adverse, decree plaintiff has appealed.
Henry F. Thon died July 14, 1930, 86 years of age. Plaintiff and Mae L. Stiles were his only children. Mrs. Henry F. Thon died in 1916; and thereafter the daughter and her husband, Archie Stiles, resided with the father in his home. Mr. Thon, Sr., had been engaged as an undertaker and in the retail furniture business for many years. In the latter part of his life he became less active in each branch of the business; and is said not to have conducted a funeral after 1910. In June, 1917, he made his son-in-law, the defendant Archie Stiles, a partner in the business, giving him at the time a one-fourth interest.
Mr. Thon, Sr., accumulated a substantial property, and the gifts which plaintiff seeks by these suits to set aside are:
(1) On or about July.30, 1925, 20 shares of stock in the Wyandotte Savings Bank, to the defendant Archie Stiles, the value of the stock being $9,000.
(2) Real estate, the block where the business was carried on and the homestead, the two parcels valued at substantially .$90,000, were given to the daughter Mae L. Stiles. The deed for each parcel was dated September 5, 1918; a life estate was reserved in the grantor; but these two deeds were not delivered to the grantee until February 6, 1928, on which date they were recorded.
(3) Mr. Thon, Sr., had a savings deposit in the Wyandotte Savings Bank on August 20, 1929, of substantially $21,000. On that date he caused this individual account to be changed to the names of himself and Mrs. Stiles with right of survivorship.
For some time before his death Henry F. Thon suffered an impairment of health due to aortic stenosis and chronic nephritis. There is testimony that he also suffered from uremic poisoning and on many occasions during his later years he had fainting spells or convulsions. However, he seems to have gone to the store almost daily except when prevented by temporary illness or when taking a vacation. At times he assisted somewhat in waiting on the trade, although the son-in-law and a Mr. G-raunstadt, who also had a quarter interest, seem to have been generally in charge of the business. These activities on the part of Mr. Henry F. Thon, perhaps in a somewhat diminished degree, continued to the time of his death, which occurred in the place of business.
In the opinion of the circuit judge, filed incident to his determination of these cases, he stated:
“The burden of proof, in cases of this kind, to prove undue influence is upon the plaintiff. No decree can be entered for plaintiff, unless by a fair preponderance of the evidence the claims and contentions of the plaintiff in his bill are sustained.”
Appellant stresses the claim on this appeal that the rule as to the burden of proof announced is erroneous, and, instead, because of an alleged fiduciary relation existing between the donor and donees, the burden of proof was upon the latter (the defendants) to establish the validity of the respective gifts under which they claim. In support of this contention appellant relies in part upon the following cases: Jacox v. Jacox, 40 Mich. 473 (29 Am. Rep. 547); Hemphill v. Holford, 88 Mich. 293; Smith v. Cuddy, 96 Mich. 562; Noban v. Shoup, 171 Mich. 191; Guinon v. Guinon, 184 Mich. 56; Sadler v. Sadler, 201 Mich. 281. The general purport of these decisions is thus expressed in the opinion in Noban v. Shoup, supra, quoting Jacox v. Jacox, supra:
“And if the circumstances disclose that the person under the infirmity, whether through choice, accident or otherwise, was as matter of fact for the time being in the place of ward of the other party, or was by his own consent, however brought about, in a state of submission to the judgment or opinion of the other, a presumption will arise adverse to the justice and equity of the bargain, and the bargainee will be required to show that no advantage was taken, and that in itself the arrangement was not only suitable, fair and conscientious, but one expedient under the circumstances and conducive to the interests of the other.”
In the instant case it becomes unimportant to determine whether the trial judge was in error in holding that it did not fall within the rule of the above-cited authorities, as contended by appellant. This is true because careful consideration of this record fully convinces us that even though the burden of establishing the validity of the gifts was upon the respective defendants, that burden was met and fully satisfied. We forego a detailed review of the testimony of the respective witnesses. The record contains no direct testimony to the effect that, at the time of mating any one of these gifts, Mr. Thon, Sr., was subjected to undue influence, or for that matter to any influence whatever, by the donee or any one in behalf of the donee. The testimony from which appellant would draw an inference of undue influence is not at all persuasive. After the death of Mrs. Henry F. Thon, the relations between plaintiff and his father, while perhaps not unfriendly, were not of the cordial character commonly existing between father and son; and, unfortunately, a very unfriendly feeling existed between plaintiff and his adult children on the one hand, and Mrs. Stiles on the other. These circumstances may have afforded an opportunity and possibly an inducement for the defendants to attempt to unduly influence Mr. Thon, Sr.; but it does not necessarily follow that there was undue influence merely because the opportunity for its exercise has been shown. Even in cases where a fiduciary relation is established, the question of undue influence is one of fact. Pritchard v. Hutton, 187 Mich. 346. When, because of a fiduciary relation, the presumption of invalidity of the transaction arises, doubtless such presumption is strengthened by proof of opportunity to exercise undue influence. But, as noted, our review of this record convinces us that the respective gifts did not result from undue influence. The circuit judge arrived at the correct result; and the decree entered is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
On April 2, 1929, an agreement was entered into between Clarence A. Hathaway, doing business as the Capitol Machine & Supply Company, party of the first part, and Harry B. Clark, the plaintiff herein, and Charles H. Walters, parties of the second part, which, after reciting that first party was the owner of the machinery and equipment operated by him under the assumed name of the Capitol Machine & Supply Company, and that it had a valuation of $17,000, and that he was desirous of disposing of it, and that second parties were “experienced die and tool men” and were desirous of purchasing it, provided that a corporation should be organized under the name of the Capitol Tool & Engineering Company, with a capital stock of $25,000, divided into 2,500 shares of the par value of $10 each, and that first party should transfer the property above mentioned to the corporation and receive therefor 1,700 shares of said stock; that second parties should purchase said 1,700 shares of stock from first party at the par value thereof, with interest at six per cent, until paid, such payments to be made from the dividends as declared by the corporation, but all to be paid on or before three years from the date of the contract; that but 49 per cent, of said shares of stopk should be delivered to second parties until the entire purchase price was paid, and that first party should have the right to vote the 51 per cent, thereof until that time. It was further provided that first party’s son, C.. Elwyn Hathaway, and his daughter, Alice E. Baynes, should act as directors with the first and second parties; that the corporation should lease first party’s building at an agreed upon rental, and that first party and each of second parties should receive $65 per weelc for services to be rendered to the corporation.
The articles of association were prepared pursuant thereto, and filed with the secretary of State on April 27, 1929. It was stated therein that first party was the owner of 1,696 shares of the stock and second parties and the son and daughter of one share each.
The record book of the corporation shows that a meeting of stockholders was _ held on April 2d, at which all the stockholders were present, and at which they were all elected directors, and at which by-laws were adopted and a recommendation made that the board of directors accept a bill of sale of first party’s property in exchange for 1,700 shares of the capital stock of the company. This is followed by a meeting of the board of directors at which Walters was elected president, Clark vice-president, and Hathaway treasurer and secretary. The bill of sale was accepted as per the recommendation of the stockholders, a lease of the property authorized, and the compensation of the parties fixed as in the agreement.
The record discloses that .at a special meeting of the board of directors, held on September 7, 1929, the resignation of-Charles Walters as president and director was read and accepted, and the plaintiff elected president in his stead. The following then appears:
“Motion was made and seconded that Harry B. Clark and Clarence A. Hathaway’s salary be on the basis of $8,000 per year, and be retroactive to April 1st. Motion carried.”
The minutes of this meeting were signed by “Alice E. Baynes, secretary.”
Plaintiff testified that he continued to work for the company until April, 1931, when he quit at Hathaway’s request; that no certificate of stock was issued to him; that- — ■
“I think the first year the concern made a profit of somewhere around $13,000 or $14,000 net. They did not do so well the second year. ’ ’
Plaintiff brought this action to recover the balance of salary claimed to be due him, $8,271.47. The answer of the defendant was a denial of plaintiff’s claim, and by recoupment it claimed that he was indebted to the company in the sum of $3,056.86. The trial court instructed the jury that, under the proofs submitted, the plaintiff was'not entitled to recover. He submitted defendant’s claim of recoupment to them, and on October 14, 1931, they found a verdict of no cause of action, on which a judgment was subsequently entered. The plaintiff has appealed therefrom.
Plaintiff’s claim is based upon services rendered the defendant from April 1, 1929, to April 1, 1931, at $8,000 per year, less payment admitted in the sum of $7,728.53, leaving a balance due of $8,271.47. If entitled to but $65 per week, as provided for in the agreement and at the first meeting of stockholders, it is conceded that he has been overpaid. He does not base his right to recover upon the minutes in the record, above quoted, but upon an agreement made between himself and Clarence A. Hathaway. There is uncertainty as to who prepared the minutes of the meeting of September ^, 1929. Mrs. Baynes testified that some person, she thought it was the plaintiff, handed the manuscript to her and directed her to enter it on the record, and she did so. The plaintiff testified that the first information he had concerning it was about the time he left, April 1, 1931. Plaintiff testified:
“There came a time toward the close of the first year when we employed somebody to get a statement of the books of the corporation. We employed Ray Lynn, an auditor here in Lansing. There was a talk between me and Mr. Hathaway, senior, in the presence of Ray Lynn about the $8,000 wages and we both agreed to it. ’ ’
Under cross-examination he said:
“Q. In April, 1930, you had the books audited as provided by the agreement the books should be audited every year?
“A. That is right. I remember that in April, 1930, the company had made considerable money. That money wasn’t on hand. It was largely reinvested. It wasn’t cash. It was reinvested and cash receivable. I can’t answer how much the cash receivable amounted to.
“Q. When did you and Hathaway have this talk about dividing up the money and paying $8,000 salaries ?
“A. Had it in Mr. Ray Lynn’s office. Mr. Ray Lynn and myself and Mr. Hathaway were present and no one else.
“Q. You found then the company had made a profit of somewhere around $14,000 or $15,000?
“A. I believe so.
“Q. And you and Mr. Hathaway agreed that the profit would be divided up?
“A. Yes, sir. That profit was to be left in the business to do business on. Mr. Hathaway was not to get cash.”
Clarence A. Hathaway testified:
“Q. Well, the company had made some money that year?
“A. Yes, while Mr. Walters was there and up until April, up until the time we made out this report, made a fairly good showing. I don’t know what the profits were exactly, hut Mr. Clark stated around $14,000 or $16,000. At the office of Mr. Lynn the profit on the hook, the hook value, the book profit showed enhanced value and the question of the income tax was brought up. It was suggested, I think by Mr. Clark, that the profits he divided between us, that we pay the income tax on those profits individually instead of paying as a corporation, because the corporation tax is more than the individual tax, the rate, in that way it would save to the company and for his benefit the difference.”
Ray Lynn, the accountant who prepared the income tax report for the corporation, testified:
“Q. Was there ever anything said in that conversation about why they agreed on this salary to themselves ?
“A. Well, during their conversation it was considered. The fundamental reason for it was because they both worked hard, put in a lot of time, getting business through and earning the profits and they did not feel they should file an income tax return on only $65 a week on that basis and pay the government around $1,200 or $1,500. That was the reason they figured they were entitled to further consideration in the way of salaries. While the conversation was going on I was there and Mr. Hathaway and Mr. Clark. My secretary was in and out. No other directors were there. Mrs. Baynes was not there, Mr. Elwyn Hathaway was not there. I prepared the income tax statement for the corporation and as set up in there this salary that had been agreed upon in the conversation. ’ ’
It also appears that on the books kept after April 1, 1930, both plaintiff and Hathaway were credited with $65 per week for services. Both these men had worked for the defendant company after its organization for the compensation agreed upon, $65 per week. No thought entered their minds that they were entitled to more until it became apparent that, if the income tax report of the company showed the large profit they had made, the tax thereon would be much greater than if this profit was treated as salary and reported by each of them as such. The money represented by this increase in salary was not withdrawn from the funds of the company, and it clearly appears that, while a profit had been made, it had been invested in additional equipment and was represented in the increased value of the plant. Even though it be conceded that it was a one-man corporation, and that Hathaway had control, we think no court should enforce payment by the corporation of an increase in salary from $3,225 to $8,000 for the year, when the services had been rendered before it was made, unde‘r the circumstances here presented. The purpose evidently was to make the books of the corporation show a smaller profit for the year and thus reduce the income tax to be paid.
In our opinion the court was clearly right in holding that plaintiff had not proven that he was entitled to recover for services at the rate of $8,000 per year, and in so directing the jury.
The judgment is affirmed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Shepherd, J.
A jury convicted defendant of first-degree murder, MCL 750.316; MSA 28.548. The sole issue at trial was whether defendant was insane when he stabbed the victim, his brother, several times with a steak knife. The trial court sentenced defendant to life imprisonment. We reverse and remand for a new trial due to the nature of a prosecution psychologist’s testimony regarding the legal definitions of insanity, mental illness and mental retardation.
More specifically, we hold that:
A. Expert witnesses may not express an opinion on the Legislature’s intent in adopting statutory language. It is the function of the court to state the meaning of statutes.
B. Mental illness as defined by the Legislature is not limited to psychosis.
C. The concept of mental retardation has not been quantified by the Legislature and it was error for an expert witness to testify that one may not be considered mentally retarded unless he or she has an IQ of 60 or less.
D. Legal definitions must be presented to the jury by means of judicial instructions and not through the give-and-take of direct and cross-examination. The jury may not be allowed to speculate on which portion of an expert’s testimony is the legitimate expression of opinion and which is impermissible statutory construction.
E. An expert’s testimony must be couched in language which is professional, clear and within the parameters of the standards set by the law. Experts may not even partially base an opinion on an insanity defense by the use of such colloquial and imprecise expressions as a defendant did or did not go "bananas” and was or was not "out in left field”.
A psychologist testified for the defense regarding defendant’s mental condition at the time of the killing. The witness indicated that defendant’s "IQ” was in the dull normal range and that he had a limited ability to arrange and process information and to relate to meaning and symbols. According to this witness, defendant had "severe” neuropsychological problems, which might well have originated in his early childhood. The witness concluded that defendant was insane when he killed his brother.
In rebuttal, the people’s expert witness testified that defendant was neither mentally ill nor retarded and, therefore, not insane. Over repeated objections by defense counsel, the judge allowed the psychologist to give his interpretation of the meaning of the terms "insanity”, "mental illness” and "mental retardation”, as they are used in the pertinent statutes. See, infra. The defense attorney argued that it was not the witness’s function to give opinions as to what the law means. The judge replied that the witness would be subject to cross-examination and that the jury should disregard anything which they "perceive[d] as instructions from this witness”.
The psychologist then proceeded to give the testimony now complained of on appeal. First, he opined that the statutory definition of mental illness was drawn from the definition of "psychosis” in a manual of the American Psychiatric Association. The manual, according to the witness, defines psychosis as "a gross distortion of reality, when someone’s just out in left field”. Secondly, he defined mental retardation as "an IQ of 60 or less”. Finally, he gave his views on the meaning of legal insanity:
"[T]hat’s what we kind of are trying to determine, what a person was thinking at the time of the alleged crime, was there any indication of mental retardation, was this behavior in their control, could they control their behavior, or were they driven by some impulse, some psychotic thought, or were they so retarded that did they pick up a gun and then it was bananas. Did they not understand that the bullets would come out of the gun.”
The witness admitted on cross-examination that there are "lesser degrees” of mental disorder, but maintained that "generally mental illness is defined as a psychosis”.
The Legislature has defined "legal insanity”, "mental illness” and "mental retardation” as follows:
"A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” MCL 768.21a(l); MSA 28.1044(1X1).
"As used in this chapter, 'mental illness’ means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” MCL 330.1400a; MSA 14.800(400a).
" 'Mentally retarded’ means significantly subaverage general intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior.” MCL 330.1500(g); MSA 14.800(500)(g).
Although these definitions are constructed of vague terminology, perhaps due to the imprecise nature of the subject matter, we agree with defendant’s claim that expert witnesses go beyond their proper function when they give an opinion to the jury concerning the Legislature’s intent. Since we find the error to be prejudicial in the context of this case, we reverse and remand for a new trial.
"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” MRE 704; People v McClinton Robinson, 417 Mich 231; 331 NW2d 226 (1983). There is nothing wrong with a psychiatrist’s or psychologist’s testifying that defendant was or was not insane when he performed the act. However, an expert’s opinion as to the applicable law of criminal responsibility or insanity is of no aid to the jury and could possibly confuse them in light of their duty to apply the law solely as explained by the judge at the end of the case. People v Drossart, 99 Mich App 66, 76; 297 NW2d 863 (1980), lv den 410 Mich 892 (1981). "[I]t is the exclusive responsibility of the trial judge to find and interpret the applicable law.” People v Lyons, 93 Mich App 35, 46; 285 NW2d 788 (1979). While the expert may give opinions, even though couched in legal language which "embraces an ultimate issue”, MRE 704, the witness’s function does not extend to enlightening the court or jury on matters of law. The distinction has been consistently followed by the courts of this state. In re Powers Estate, 375 Mich 150, 172-173; 134 NW2d 148 (1965), Kempsey v McGinniss, 21 Mich 123 (1870).
We find good reason to apply this rule to cases like this one. A psychologist has no special knowledge regarding what the Legislature meant when it defined the relevant terms. Rather, this witness appears to have drawn his opinion of the Legislature’s intent by reference to a distinctly non-legislative standard, namely, a manual of the American Psychiatric Association. We do not mean to belittle the integrity of that organization, but it does not enjoy the status of a law-making body. Though the concepts of mental illness and insanity suggest reference to the medical and psychiatric sciences, "the definition used to describe those terms, at least for purposes of avoiding criminal responsibility, must come from the law”. Drossart, supra, p 75; see also, People v Martin, 386 Mich 407, 420-422; 192 NW2d 215 (1971). "[A] basic postulate in a democratic society is the avoidance of government by experts in crucial areas of lawmaking and adjudication.” Hall, General Principles of Criminal Law (2d ed), p 465. As this Court noted in Drossart, supra, pp 76-77:
"The testimony is incompetent because opinions by medical experts on the correct legal standard of criminal responsibility in Michigan [are] outside the range of the witness’s expertise in the field of mental diseases. Commonwealth v O’Conner, 387 NE2d 190, 195-196 (Mass App, 1979), State v Kelly [118 NJ Super 38; 285 A2d 571 (1972)], supra, 7 Wigmore [Evidence], supra, § 1952. The testimony is also irrelevant because it is not 'otherwise admissible’ under MRE 403, 701, 702. MRE 704, McCormick [Evidence], supra, § 12, p 27, fn 47. Thus, even if the medical expert were competent to testify about his understanding of the applicable legal standard for insanity, the resultant 'confusion of the issues or misleading the jury’ by a potentially conflicting instruction given by the trial judge would be a proper ground for excluding the testimony from trial. MRE 403. This is especially true where there is possibility that the witness might develop his own legal definition, standard, or criterion for measuring criminal insanity or mental illness.”
The people urge that the error was harmless because the judge made it clear to the jury that it was his responsibility to instruct on the law. We disagree. In response to the defense attorney’s objections, the judge stated that there would be an opportunity for cross-examination. This opportunity could not cure the error. The law must be presented to the jury by means of judicial instruction, not through the give-and-take of direct and cross-examination. The judge also told the jury to disregard anything in the witness’s testimony which the jury perceived to be instructional in nature. This response could only have confused the jury. A group of laypersons is ill-suited to sift through an expert’s testimony and categorize it as either legitimate expression of opinion or incompetent renditions of the law of insanity. It was the responsibility of the court to tell the jury which specific portions of the testimony should have been disregarded.
"[I]f it is reasonably possible that in a trial free of the error complained of even one juror would have voted to acquit, the error was not harmless.” People v Gallon, 121 Mich App 183, 189; 328 NW2d 615 (1982). Improper admission of the expert’s testimony was reversible error. The testimony went to the heart of the single, controlling issue and "might have operated to substantially injure the defendant’s case”. People v Allen, 94 Mich App 539, 544; 288 NW2d 451 (1980) (Opinion of Riley, J.), lv den 411 Mich 1044 (1981).
The testimony did harm to defendant’s cause because it contained definitions of mental illness, retardation, and insanity which are significantly more narrow than those mandated by the Legislature. The Legislature might have chosen to define "mental illness” exclusively in terms of "psychosis”, but it did not. MCL 330.1400a. The difference is not one of mere semantics. The witness testified that "psychosis” is "a gross distortion of reality”. The statute defines "mental illness” as "a substantial disorder of thought or mood which signiñ cantly impairs judgment”, etc. Id. (Emphasis supplied.) Clearly, these defintions diverge in the impression which they conveyed to the jury. The witness’s version conjures images of an accused being totally removed from reality while the Legislature’s definition (which uses the words "significantly” and "substantial” rather than "gross”) encompasses a broader range of mental affliction. Indeed, mental impairment due to any cause, physical or purely psychological, may form the basis for a finding of mental illness. People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982), lv den 413 Mich 908 (1982). Thus, the witness’s restriction of the term "mental illness” to the realm of "psychosis” resulted in a standard which is at odds with legislative intent.
This broader definition of mental illness as stated by the Legislature does not allow all persons suffering from mental illness to escape conviction for criminal acts. The statute further requires that the person with such a mental illness "lack[s] substantial capacity either to appreciate the wrongfulness of his conduct” or that the person be unable as a result of the mental illness "to conform his conduct to the requirements of law”. MCL 768.21a(l); MSA 28.1044(1X1).
The harm done by the error is more obvious when we consider the witness’s definition of mental retardation as an IQ of 60 or less, a definition which is absent from the statute. The Legislature defined the same condition as "significantly subaverage general intellectual functioning”. MCL 330.1500(g). Again, the statutory terminology is more expansive. This statement was particularly prejudicial in light of the same witness’s testimony that defendant’s IQ was greater than 60.
The Legislature chose not to quantify the concept of mental retardation. If we were to allow the expert in this case to say that the Legislature has drawn the line at 60, another expert in this or another case might pick yet another number. We would thus be faced with juries finding that the statute has a different meaning in each of a multitude of cases. All that experts may do is state whether a defendant fits within the language used by the Legislature and state the reasons for his or her opinion. As indicated, the expert may not state what the Legislature meant. As in the case of mental illness, once it is determined that a defendant is mentally retarded, the defendant would then have to meet the second prong of the statutory requirement, i.e., that the mental retardation results in a lack of "substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law”.
We have indicated that the prosecution expert’s testimony was inadmissible since it impermissibly defined the meaning of legal terms the definition of which is the proper function of the court. We have also indicated that the definitions used by the expert were incorrect and excessively narrow. We further find that the testimony of the expert was excessively colloquial and imprecise. A colloquial expression such as "bananas” can signify a different degree of anti-social conduct to each juror and serves no purpose other than to create confusion. So too the expression used by the expert, "just out in left field”, as an alternative definition of psychosis, was a definition certainly not found in the statute. Expert witnesses should testify expertly and should be required to define their terms by using words which do not cause the jurors to allow their individual imaginations to run free. We can no more allow such speculation based upon a prosecution expert’s testimony than we could al low a defense expert to testify that a defendant is legally insane because he went "bananas” and was "out in left field”. Counsel and the court have a responsibility to make certain that the language used by experts is professional, clear, and within the parameters of the standards set by the law.
An example of a serious deviation from this last requirement is the expert’s statement that his view of what the Legislature meant by mental retardation or psychotic thought involves the defendant’s not understanding that bullets would come out of the gun. From this testimony the jury might conclude that defendant could not be mentally ill if he understood that bullets come out of a gun. The statute does not imply such a conclusion and the jury should not have been allowed to speculate that it does.
We have reviewed the insanity instructions given by the trial court to which no objections were raised. The instructions basically followed CJI 7:8:02A and were not objectionable. As indicated herein, the problem lies in the admission into evidence of incorrect and highly prejudicial comments and definitions to which objections were made and which could have led the jury to apply the instructions incorrectly. The entire problem can be avoided if counsel for both sides caution expert witnesses on the need to testify appropriately. Furthermore, those who come into court to testify as experts should be aware that they are not engaging in parlor conversation. Rather, they are an important part of the serious process of determining guilt or innocence in criminal cases.
Reversed and remanded for new trial.
Bronson, P.J., concurs in the result only. | [
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Beasley, J.
In a nonjury trial, defendant, Richard Albert Margoes, was convicted of manslaughter, in violation of MCL 750.321; MSA 28.553, and felony-firearm, in violation of MCL 750.227b; MSA 28.424(2). After being sentenced to not less than three years nor more than five years on the manslaughter charge and the mandatory two years on the felony-firearm charge, he appeals as of right.
On appeal, defendant claims that his waiver of a jury trial was not voluntary because his lawyer made "false and misleading” promises to him. The record belies defendant’s claim.
In People v Pasley, the Supreme Court discussed the scope of review of claims that a defendant’s waiver of his right to a jury trial was invalid:
"* * * review will be conducted to ascertain whether the waiver form was indeed executed by the defendant and whether the waiver was personally, voluntarily and understanding^ made in open court.”
In this case, a signed waiver form, dated August 1, 1983 (the first day of trial), appears in the lower court record. The trial judge fully discussed the waiver on the record with defendant. The record here shows that the trial judge accepted defendant’s waiver of his right to a jury trial only after defendant had indicated a desire for a bench trial. When the case was called, defendant stated he wanted a bench trial, then stated he could not decide what was best. The court suggested that a jury be picked so that defendant could see the panel. At that point, if he liked the jury, a jury trial would be held, otherwise he could exercise his right to waive the jury.
A brief recess of approximately one hour was taken so that prospective jurors could be brought to the courtroom, and defendant and his counsel apparently discussed the subject further. When the case resumed, defense counsel indicated that defendant wished to have a bench trial. The court then questioned defendant rather extensively regarding that subject.
The court ascertained that defendant was 31 years old and had had some post-secondary education. The court then explained that the difference between a bench and jury trial concerns who makes the determination of whether the prosecution has proven defendant guilty beyond a reasonable doubt. The questioning concluded with the following exchange:
"The Court: I understand you want me to hear this case sitting without a jury; is that correct?
"The Defendant: Yes, sir. This is my final decision.
"The Court: Anybody forced you to make that decision?
"The Defendant: No.
"The Court: Anybody threaten you to make that decision?
"The Defendant: No, sir.
"The Court: Now, I have in my hand a piece of paper entitled waiver of trial by jury with what appears to be your signature. Is that your signature?
"The Defendant: Yes, sir, your Honor.
"The Court: When you signed this piece of paper after discussing it with Mr. Nelson and he advised you of your rights, do you understand you were voluntarily or freely giving up your right to jury trial?
"The Defendant: Yes.
"The Court: The court finds the waiver to be freely and voluntarily entered, and it will accept it.”
Defendant claims that the court’s questioning was deficient in that he was not asked "whether anyone has promised the defendant that the court would be lenient if the defendant gives up his rights”. Defendant suggests "that a proper construction of the phrase 'voluntarily waive’ must include an inquiry into whether the waiver was predicated on a promise of leniency or other misleading statements from counsel or others to the defendant”.
Neither this Court nor the Supreme Court have required that that specific question be asked. The Pasley Court, supra, stated what is required as follows:
"Although the statute requires that a written waiver be signed by the defendant, it does not require that it be executed in open court. It does, by fair implication, require that the defendant either orally acknowledge in open court that he is voluntarily and understandingly giving up his right to trial by jury, consistent with the previously signed written jury waiver form or, at a minimum, that he personally, voluntarily, and understandingly sign, in open court, the written waiver form prescribed by statute.
"The essence of our holding is that the trial judge must, however, find on the record, from evidence sufficient to warrant such finding, that the defendant, in open court, voluntarily and understandingly give up his right to trial by jury. The statute does not require more and will not permit less.”[ ]
The questioning in the within case was more extensive than that in Pasley. We conclude that defendant’s claims on appeal are contrary to what happened in open court, and we reject them as a basis for reversal.
In addition, defendant claims that this case should be remanded for an evidentiary hearing. On May 29, 1984, defendant filed in this Court a motion to remand the case to the trial court for the purpose of making a delayed motion for new trial and the brief on appeal in which he requests that the case be remanded to the trial court for an evidentiary hearing so he can develop record support of the alleged promises and misstatements made by his trial counsel. Both requests for remand were denied.
We see no purpose to be served in remanding for an evidentiary hearing. The trial judge acted with great caution before accepting the waiver when it came time for defendant’s final decision regarding whether to waive a jury. Clearly, defendant fully considered the matter and made his waiver voluntarily.
Affirmed.
419 Mich 297, 303-304; 353 NW2d 440 (1984).
419 Mich 303. | [
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Per Curiam.
Plaintiff brought this suit against his former employer, the defendant, for wrongful termination. He claimed an oral contract of employment based upon the representations of a city council member that as long as plaintiff did his job he would continue to be employed. Plaintiff also claimed that he was discharged without cause on an implied contract that he would be discharged for cause only, based upon his reasonable expectation that defendant’s policy and benefits manual provided a contract of employment wherein plaintiff could be dismissed only upon a showing of just cause. The jury returned a verdict of no cause of action and plaintiff appeals as of right.
I
Plaintiff also appeals as of right from the grant of accelerated judgment, GCR 1963, 116.1(5), denying his claim for damages under the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., for failure to comply with the statute of limitations. We affirm that order. Plaintiff argues that it was improperly granted because he raised a material issue of fact as to whether minutes of the meeting were ever published. However, that factual issue has no bearing on the time limits for bringing an action under this act. Plaintiff requested in his complaint $500 in damages pursu ant to MCL 15.273; MSA 4.1800(23). An action under that section must be commenced within 180 days after the date of the violation. MCL 15.273(2); MSA 4.1800(23X2). As more than 180 days had elapsed, it was irrelevant whether the minutes of the meeting were made available to the public.
II
Plaintiff argues that the trial court erred in failing to instruct the jury that defendant had the burden of proving that just cause existed for dismissing plaintiff.
In instructing the jury, the trial court defined each party’s theory of the case: that plaintiff alleged the existence of an employment contract providing that he could be dismissed for just cause; and that defendant alleged that, while it did not need cause because plaintiff served at its will, good cause was present for its decision to discharge plaintiff. The trial court next defined burden of proof, then stated:
"The plaintiff, Herman Rasch, has the burden of proof on each of the following propositions:
"(1) That an employment contract was entered into between the parties;
"(2) The burden of proof to establish the terms and conditions of that contract, including that one of the terms and conditions was termination for just cause;
"(3) That defendant, City of East Jordan, breached the contract;
"(4) That plaintiff sustained damages as a result of such breach of contract.
"Your verdict will be for the plaintiff if you find that the parties entered into an employment contract; that the contract was breached by defendant; and as a result of such breach plaintiff sustained damages.”
Further on, the court told the jury:
"You must first decide from the evidence as to whether or not the contract between the parties required the existence of just cause for termination. If you find just cause to be a term or condition of the contract, you must then decide from the evidence as to the presence or absence of just cause. * * *
"In order to find for the plaintiif you must find from the evidence that there existed a mutual understanding that plaintiff would be discharged for good or just cause only. If you find a just cause contract was entered into between the parties in this case, you must then determine if Mr. Rasch was discharged for just or good cause. It is for you to decide this issue from the evidence in this case. * * *
"If you find defendant terminated plaintiff for just cause, your verdict will be for the defendant.
"If you find defendant terminated plaintiff without just cause, your verdict will be for the plaintiff.”
We find no error in the instructions that the trial court gave; the error lies in the instructions that the court neglected to give, for it failed to inform the jury that the burden of proof as to whether plaintiff was discharged for just cause was on defendant.
As a general rule, the burden of proof rests upon one who has the affirmative of an issue necessary to his cause of action or defense. 11 Michigan Law & Practice, Evidence, § 21, p 159. In a wrongful-discharge case, the plaintiff makes a prima facie case by proving the contract, producing testimony that he had performed it up to the time of his discharge, and providing proof of damages; the defendant then has the affirmative of proving that plaintiff had breached the contract, and that the discharge was legal. Saari v George C Dates & Associates, Inc, 311 Mich 624, 628; 19 NW2d 121 (1945). The burden of proof is upon plaintiff to prove his contract and its performance up to the time of discharge; the burden then shifts to the defendant to show a legal excuse for his discharge. Johnson v Jessop, 332 Mich 501, 503; 51 NW2d 915 (1952); Milligan v Sligh Furniture Co, 111 Mich 629, 633; 70 NW 133 (1897). In Lambert v Jim Causley Pontiac, Inc, 47 Mich App 620, 622; 209 NW2d 619 (1973), this Court ruled that plaintiff made a prima facie case by producing evidence that there was an employment contract and that he would be entitled to profit-sharing benefits. The burden then shifted to defendant to prove its claim that plaintiff knew that there was a forfeiture clause in the contract. The court in Goodwyn v Sencore, Inc, 389 F Supp 824, 829 (D SD, 1975), observed:
"The majority of jurisdictions take the position that in an action for an alleged wrongful discharge the burden rests upon the employer to prove that the employee has breached the contract and that the discharge was based upon a legal excuse.”
Plaintiff’s claims in this case are based on the Supreme Court’s decision in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), in which the Court recognized that an employer’s express agreement to terminate only for good cause, or company policy statements to that effect, can give rise to enforceable contract rights. As defendant points out, the majority opinions in Toussaint and its companion case, Ebling v Masco Corp, do not specifically address the burden of proof question. Justice Ryan’s separate opinion in Ebling, supra, notes that sufficient evidence was introduced to permit the jury to infer that defendant’s decision to discharge plaintiff was not for cause, without discussing where the burden of proof lies in a close case. 408 Mich 635-636. In his dissent to Toussaint, Justice Ryan notes that plaintiff had the burden of proving that the termination-for-just-cause language in the Supervisory Manual was part of his employment contract, id., pp 641-642, but he does not discuss who has the further burden of proving whether the termination was for just cause.
Decisions by this Court based on Toussaint also have not reached the burden of proof question. Evidently the weight of each party’s testimony was not so similar as to compel resort to burden of proof rules. Cf., Lambert, supra, p 623.
This Court recently ruled that the defendant employer in a Toussaint type case should have been granted a directed verdict after the employee testified about illegal transactions he had made in the course of his employment. Obey v McFadden Corp, 138 Mich App 767; 360 NW2d 292 (1984). To the extent that this decision implies that the burden is on plaintiff to show that there was no just cause for his discharge, we disagree with that holding.
Plaintiff in this case requested an instruction that the burden of proof was on defendant to show that the discharge was for just cause. When the trial court omitted the instruction, plaintiff objected and later moved for judgment notwithstanding the verdict, or new trial, based in part on this alleged error. It is erroneous to refuse to give requested jury instructions which correctly state the law applicable to the facts, and the error requires reversal if it might have altered the results. Timmerman v Universal Corrugated Box Machinery Corp, 93 Mich App 680, 684; 287 NW2d 316 (1979). Defendant argues that there was abundant evidence that there was no contract. However, as there was no special verdict, we cannot assume that the jury verdict was based on this evidence, making the omitted instruction harmless error. Defendant also argues that there was abundant testimony that there was just cause for plaintiffs termination, and plaintiff conceded as much in its post-trial brief, but there may well have been testimony from plaintiff disputing this. (As the parties stipulated to transmit only a small portion of the transcript, we are unable to review the quantum of the evidence.) If the testimony was about equally divided, omission of the burden-of-proof instruction could have been critical. We must, therefore, reverse.
Ill
We also conclude, based on Toussaint, that the trial court gave erroneous instructions regarding the need for a mutual understanding that plaintiff would be discharged for just cause only. One of plaintiffs causes of action alleged an employment contract which provided that discharge was for just cause only, based upon the Policy & Benefits Manual of the defendant.
In its instructions to the jury, the trial court made the following two statements objected to by plaintiff:
"As to the finding you must make concerning whether or not just cause was a term or condition of the contract, the following principles of law are applicable:
"(1) The employment contracts, like other binding agreements, are the product of informed understanding and mutual assent. The relationship is a product of a meeting of the minds expressed by some offer by one to employ, or to work for the other, and an acceptance of the offer * * *
"In order to find for the plaintiff you must find from the evidence that there existed a mutual understanding that plaintiff would be discharged for good or just cause only. If you find a just cause contract was entered into between the parties in this case, you must then determine if Mr. Rasch was discharged for just or good cause.”
Plaintiff correctly points out that the majority in Toussaint expressly stated that a meeting of the minds is not necessary to find that policy manual statements created contractual rights:
"No pre-employment negotiations need take place and the parties’ minds need not meet on the subject; nor does it matter that the employee knows nothing of the particulars of the employer’s policies and practices or that the employer may change them unilaterally.” Toussaint, supra, p 613. (Footnote omitted.)
The Court pointed out in a footnote that it was therefore unnecessary for Toussaint to prove reliance on the policies set forth in the manual. Justice Ryan, writing for the three dissenters, disagreed, stating that employment contracts, like other binding agreements, are the product of informed understanding and mutual assent as to the subject matter. 408 Mich 646. The dissent found no evidence from which the trier of fact was entitled to conclude that the requisite mutual assent or meeting of the minds occurred on the proposition that the defendant’s manual constituted plaintiff’s employment contract as claimed. Id., p 647.
The first instruction cited above was not erroneous. Toussaint did not do away with the need for informed understanding and mutual assent in employment contracts. Schwartz v Michigan Sugar Co, 106 Mich App 471, 478; 308 NW2d 459 (1981), lv den 414 Mich 870 (1982). However, the second part of the instruction quoted above was erroneous, because there need not be mutual understand ing or reliance by the employee on a particular just cause termination policy. The instruction was erroneous because it required plaintiff to have knowledge of a just cause termination clause when only knowledge of the policy manual and its application to plaintiff was required.
IV
Plaintiffs further objection to the trial court’s instruction that city council members individually have no power to bind the municipality is unfounded. Although municipal officers can bind a municipality individually, if empowered to do so by the city charter, Superior Ambulance Service v Lincoln Park, 19 Mich App 655; 173 NW2d 236 (1969), in this case plaintiff relied on the representations of a city council member, not a municipal officer. The trial court’s instruction was not erroneous on this point.
Because the trial court’s instructions on the burden of proof and mutual assent requirement on the just cause issue were erroneous, we reverse.
Affirmed in part and reversed in part. | [
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Per Curiam.
On October 23, 1979, after a jury trial in the Detroit Recorder’s Court, defendant was found not guilty of felonious assault, MCL 750.82; MSA 28.277, and guilty of possession of a firearm at the time of the commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant moved to have the guilty verdict set aside on the ground that the verdicts were inconsistent. The trial judge granted the motion to set aside the guilty verdict as inconsistent and discharged the defendant. The people appealed and this Court affirmed in an unpublished memorandum opinion (Docket No. 47489, decided May 13, 1980). The people appealed and the Supreme Court reversed the Court of Appeals, reinstated the felony-firearm conviction and remanded for sentencing in an opinion in which defendant’s case was consolidated with two others for argument on appeal. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). Defendant now appeals as of right from his conviction.
The issues raised on appeal do not require a comprehensive statement of the facts. Briefly, defendant’s car struck complainant’s car. Complainant and defendant both got out of their cars and exchanged driver’s licenses and car registrations. Defendant then allegedly pulled out a gun and struck it in complainant’s stomach. Complainant pushed defendant away, jumped into his car and drove away. Upon seeing police officers who had stopped defendant, complainant stopped his car and informed the police about his encounter with defendant only moments before.
Defendant’s first and second arguments on ap peal concern the scope and effect of our Supreme Court’s opinion reversing this Court, reinstating defendant’s conviction and remanding for sentencing. Defendant first argues that although the Supreme Court reinstated defendant’s conviction and remanded for sentencing, id., pp 448, 456, it did not address the issue of retroactivity. Defendant therefore requests that we not apply the Supreme Court’s decision in this case retroactively, and that we reverse defendant’s conviction. In addition, defendant argues that to retroactively apply the Supreme Court’s decision to the instant case would be a denial of due process and a violation of the ex post facto clause of the United States Constitution.
Defendant’s arguments center on the Supreme Court’s opinion in People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), where the Court allowed an inconsistent jury verdict finding defendant guilty of assault with a dangerous weapon and not guilty of felony-firearm. In People v Blondell Smith, 108 Mich App 466; 310 NW2d 425 (1981), lv den 417 Mich 982 (1983), we held the Vaughn would not be given retroactive effect in cases tried before the opinion was released. Defendant in the instant case was tried before the Supreme Court’s opinion in Vaughn, and on appeal the Supreme Court extended Vaughn to allow defendant’s inconsistent jury verdict. In a recent case, we applied Lewis, supra, retroactively to cases tried after Vaughn was released, but before the decisional date in Lewis. People v Eady, 131 Mich App 627; 345 NW2d 653 (1983). In holding that Lewis applied retroactively we held:
"People v Lewis, supra, did not announce a new rule of law or abrogate existing standards. Rather, the Supreme Court applied in a felony-firearm context the rule of People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), which permits inconsistent verdicts. While it is true that Vaughn, supra, abrogated the old rule barring inconsistent verdicts, the Supreme Court’s decision in that case was rendered on April 28, 1980, long before this trial. In short, Vaughn is the case which established the new rule and Lewis is not.” 131 Mich App 629-630.
Defendant thus argues that given this Court’s decision in Eady and Blondell Smith, we should not apply Lewis to defendant’s case since his trial preceded the Supreme Court’s opinion in Vaughn. Even though the Supreme Court reinstated defendant’s conviction and remanded for sentencing in the instant case, defendant argues that the Supreme Court did not address the retroactivity question now raised. We disagree.
Although there are a great variety of ways in which a new rule of law may be given effect, application normally falls within one of three main categories. A new rule can be (1) made applicable to all cases in which a cause of action has accrued and which are still lawfully pending and all future cases, (2) made applicable to the case at bar and all future cases, or (3) made to exclude the case at bar, but made applicable to all cases filed hereafter or after an arbitrary control date specified in the opinion. Placek v Sterling Heights, 405 Mich 638, 662; 275 NW2d 511 (1979); Myers v Genesee County Auditor, 375 Mich 1, 11; 133 NW2d 190 (1965).
It is well established that the retroactive application of an overruling decision is not prohibited by the constitution and, specifically, that such retroactivity does not constitute a denial of due process or a violation of the prohibition against ex post facto laws. Anno: United States Supreme Court’s Views as to Retroactive Effect of Its Own Decisions Announcing New Rules, 22 L Ed 2d 821, 825; Anno: Retroactive or Merely Prospective Operation of New Rule Adopted by Court in Overruling Precedent-Federal Cases, 14 L Ed 2d 992, 1002-1003; Anno: Prospective or Retroactive Operation of Overruling Decision, 10 ALR3d 1371, 1391-1393, and cases cited therein. We therefore find no merit to defendant’s argument that application of Lewis, supra, would constitute a denial of due process or violate the prohibition against ex post facto laws.
Turning to defendant’s retroactivity argument, we believe that the Supreme Court did address the application of its decision in Lewis, supra, to defendant. The Supreme Court specifically stated that defendant Johnson’s conviction was reinstated and his case remanded for sentencing. Id., pp 448, 456. Although not explicitly addressed in terms of retroactivity, it is clear that the Court intended its decision to apply to the case at bar. The Supreme Court’s treatment of defendant is consistent with the marked preference it has shown for applying its overruling decisions to the cases before it unless explicitly stated otherwise. Compare Sherbutte v Marine City, 374 Mich 48; 130 NW2d 920 (1964), with People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982).
Further, we believe that defendant’s reliance on People v Blondell Smith, supra, is misplaced given the Supreme Court’s retroactive treatment of its holding in People v Vaughn, supra. Although we held in Blondell Smith that Vaughn would not be given retroactive application, the Supreme Court applied its decision to defendant Vaughn by reinstating his conviction. In People v Horton, 99 Mich App 40; 297 NW2d 857 (1980), we reversed defendant’s conviction in part because of inconsistent jury verdicts. Horton was decided prior to the Supreme Court’s opinion in Vaughn. The Supreme Court, however, vacated our judgment and re manded the case to us for reconsideration in light of its opinion in Vaughn. People v Horton, 410 Mich 865; 301 NW2d 775 (1980). On remand, we held that Vaughn was applicable, and reinstated defendant’s conviction. People v Horton (On Remand), 107 Mich App 739; 310 NW2d 34 (1981); lv den 418 Mich 942 (1984). Our decision on remand, however, followed our decision in People v Blondell Smith, and was necessitated by the Supreme Court’s order. It appears from the Supreme Court’s treatment of Vaughn that the validity of our holding in People v Blondell Smith is questionable. In any event, the Supreme Court’s application of its holding in Vaughn to the defendant at bar and its order in Horton reinforces our view that the Court intended its decision to apply to the instant defendant. As the Court gave partial retroactive effect to its decision in the instant case, this Court is powerless to alter it. Schwartz v Flint (After Remand), 120 Mich App 449; 329 NW2d 26 (1982).
Defendant next argues that the trial court failed to instruct the jury that felonious assault is a specific intent crime, and that the decision of our Supreme Court in People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), compels us to reverse. Joeseype Johnson, however, was decided after defendant’s conviction in this case. Therefore, the issue is whether we must give that decision retroactive application in this case.
We recognize that there is a split among the panels of this Court which have addressed this retroactivity question. Compare People v Owens, 108 Mich App 600; 310 NW2d 819 (1981); People v Braddock, 106 Mich App 11; 307 NW2d 341 (1980); People v Slager, 105 Mich App 593; 307 NW2d 376 (1981) (T. M. Burns, P.J., dissenting); People v Vinson, 105 Mich App 583; 307 NW2d 100 (1981) (T. M. Burns, J., dissenting); with People v Wilson, 113 Mich App 591; 318 NW2d 479 (1981); People v McMaster, 105 Mich App 162; 306 NW2d 434 (1981) (MacKenzie, J., dissenting); People v Rae, 103 Mich App 293; 302 NW2d 845 (1980); People v Szymanski, 102 Mich App 745; 302 NW2d 316 (1981); People v Ideis, 101 Mich App 179; 300 NW2d 489 (1980) (Bashara, P.J., dissenting). See, also, People v Yarborough, 131 Mich App 579; 345 NW2d 650 (1983); People v Norwood, 123 Mich App 287; 333 NW2d 255 (1983) (M. J. Kelly, P.J., dissenting); People v Rivera, 120 Mich App 50; 327 NW2d 386 (1982); People v Korona, 119 Mich App 369; 326 NW2d 143 (1982); People v Davis, 126 Mich App 66; 337 NW2d 315 (1983).
A conflict of this magnitude must be resolved definitively by the Supreme Court. We, however, agree with those panels which have held that Joeseype Johnson, supra, should not be given retroactive application. See, e.g., Slager, supra.
Defendant further argues that the prosecutor’s cross-examination of defendant and closing argument denied defendant a fair trial. We note that defendant failed to object either during the cross-examination or closing argument, and, therefore, appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977); People v Stoudemire, 65 Mich App 664; 238 NW2d 365 (1975). We have thoroughly reviewed the record in this case, and do not believe that the prosecutor’s cross-examination or closing argument denied defendant his right to a fair trial.
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Hood, J.
Plaintiff appeals as of right from a March 9, 1983, Wayne County Circuit Court order of dismissal which granted defendant’s motion for accelerated judgment, GCR 1963, 116.1(5).
On October 30, 1981, plaintiff filed this action against her labor union and its agent in the Wayne County Circuit Court. In that complaint, plaintiff alleged that defendants failed to file a timely grievance for arbitration on her behalf after the Prentis Home for the Aged terminated her employment as a nurses aid. Plaintiff alleged that as a consequence of defendants’ failure to file a timely grievance for arbitration, she was denied a hearing on the merits of her dispute and any opportunity for reemployment or reinstatement with the Prentis Home. Plaintiff further alleged:
"6. That plaintiff was injured in her employment on November 25, 1978, and received workmen’s compensation for approximately one (1) year when said benefits were denied. She was terminated from her place of employment in December, 1979, and a grievance pursuant to the terms of an agreement between defendant labor union and plaintiff’s employer was filed and processed through the several steps of the grievance procedure and submitted for arbitration before the Honorable William Haber, who was selected through the procedures of the American Arbitration Association.
"7. That a hearing on the arbitration was heard on August 29, 1980, and appearing on behalf of plaintiff was defendant Thomas J. Marsh, a research specialist for defendant union herein, presented the case for plaintiff and union. The representers of the employer successfully argued that the grievance had not been filed in the allotted time and as a consequence thereof the arbitrator dismissed the grievance.
"8. That said defendant Service Employers’ International Union, Local 79 owed a duty to plaintiff and all other people represented by defendant to timely and competently represent the said employees based on contractual rights held by employees with the subject employer.
"9. That Step 4 of Article VI of the grievance procedure outlined in an agreement between defendant union and plaintiff’s employer provides that, 'if a satisfactory dispostion of the grievance is not made as a result of the meeting provided for in Step 3 above, either the home or the union shall have the right to appeal the dispute to an impartial arbitrator under and in accordance with the rules of the American Arbitration Association. Such appeal must be taken within fifteen (15) days from the date of the meeting provided for in Step 3 above * * *’.
'TO. That said defendant was negligent in not filing plaintiffs grievance in a timely expeditious manner and was further negligent in not employing competent counsel to pursue plaintiff’s grievance pursuant to rights she had under a labor agreement. Such acts or lack of action on the part of defendants effectively denied plaintiff’s rights under a labor agreement and was the proximate cause of injuries and damages sustained by plaintiff* * *
"11. That as a consequence of the negligence of both defendants, plaintiff lost her employment and has suffered losses occasioned by the loss of income since her discharge in December, 1979.”
Defendants filed a motion for accelerated judgment, GCR 1963, 116.1(5), alleging that plaintiffs action was an attempt to vacate arbitrator William Haber’s January 13, 1981, decision pursuant to GCR 1963, 769.9. Defendants alleged that because GCR 1963, 769.9(2) requires that an application for vacating an arbitration award be filed within 20 days after its grounds are known, plain tiffs complaint, filed over nine months after plaintiff received or should have received a copy of arbitrator Haber’s decision, was barred. Defendants relied on United Parcel Service, Inc v Mitchell, 451 US 56; 101 S Ct 1559; 67 L Ed 2d 732 (1981), in making this argument. Plaintiff argued that Michigan’s three-year period of limitation for tort actions applied in this case. MCL 600.5805(8); MSA 27A.5805(8). The trial court denied defendants’ motion.
Soon afterward, the Sixth Circuit issued its opinion in Badon v General Motors Corp, 679 F2d 93 (CA 6, 1982). In Badon the court decided that the period of limitation for an action, such as this, filed against a union for a breach of its duty to fairly represent a member, should be six months pursuant to an analogous six-month period of limitation found at § 10(b) of the National Labor Relations Act (NLRA), 29 USC 160(b). The defendants moved for a rehearing of their motion for acceler ated judgment. Defendants argued that either Mitchell, supra, or Badon, supra, applied retroactively to this case and either a 20-day or six-month period of limitation applied. Therefore, defendants argued that plaintiff failed to file this action in a timely manner and it should be dismissed. The trial court agreed that the period of limitation for this action was either the 20 days mandated by GCR 1963, 769.9(2) (Mitchell), or six months (Ba-don), and dismissed the action.
We find that we are constrained to agree that a six-month period of limitation retroactively applies in this case and affirm. We do so because we are bound by Sixth Circuit precedent. Smith v General Motors Corp, 747 F2d 372 (CA 6, 1984). Although we affirm, we address the law on this issue in order to express our disagreement with the decision rendered in Smith.
At the time plaintiff filed her complaint, the Court had already decided Mitchell, supra. In Mitchell, the Court said that in an action against an employer for breach of a collective-bargaining agreement brought pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 USC 185, and filed in a New York federal district court, the appropriate statute of limitation for that action was N Y Civ Prac Law and Rules § 7511(a), New York’s 90-day limitation period for applying for a vacation of an arbitration award. In Mitchell, 451 US 60, the Court recognized that LMRA § 301 did not contain its own period of limitation. Therefore, the Court followed earlier precedent, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO v Hoosier Cardinal Corp, 383 US 696, 704-705; 86 S Ct 1107; 16 L Ed 2d 192 (1966), in which it said, "the timeliness of a § 301 suit * * * is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations”. (Emphasis added.) The narrow question presented to the Court in Mitchell was which of two New York statutes of limitation was more appropriate, New York’s six-year period of limitation for breach of contract actions or the 90-day limitation for vacation of arbitration awards. Justice Stewart, concurring in the judgment, 451 US 65-71, would have broken with precedent and applied the six-month limitation period of § 10(b) of the NLRA to the action, although the parties in Mitchell did not raise that issue.
In Badon, supra, the court followed Mitchell in analyzing which Michigan statute of limitations applied to a union member’s suit against both the employer and union filed in a Michigan federal district court. The Badon court said that the 20-day limitation period found at GCR 1963, 769.9(2), could not apply because the Michigan Legislature specifically excluded application of the court rule to labor arbitration disputes. MCL 600.5001(3); MSA 27A.5001(3). The Badon court instead adopted the six-month period of limitation found at § 10(b) of the NLRA.
The Supreme Court echoed the Badon decision in DelCostello v International Brotherhood of Teamsters, 462 US 151; 103 S Ct 2281; 76 L Ed 2d 476 (1983), and found that in actions against both an employer, for breach of a collective-bargaining agreement pursuant to the LMRA § 301, and the employee’s union, for breach of the union’s duty to fairly represent its member, a hybrid § 301 action, the § 10(b) six-month period of limitation should be borrowed. This Court has since followed Badon and DelCostello and held that the applicable period of limitation for an action such as this is six months. Romero v Paragon Steel Division, Portec, Inc (On Remand), 129 Mich App 566, 572-573; 341 NW2d 546 (1983), lv den 419 Mich 861 (1984).
The question to be addressed in this case is whether that six-month period of limitation should apply retroactively to this action which was filed before Badon, DelCostello and Romero (On Remand) were decided. Defendant also argues that this Court must address the issue of whether Mitchell should apply retroactively (and thus GCR 1963, 769.9[2] would apply) since Mitchell was decided prior to the filing of this action. However, whether or not Mitchell is retroactive, it does not change the result in this case. In Badon the court did apply Mitchell and still found that GCR 1963, 769.9(2) could not apply because of the Michigan Legislature’s specific prohibition against the use of that limitation period in labor arbitration disputes.
In Pitts v Frito-Lay, Inc, 700 F2d 330 (CA 6, 1983), plaintiff brought a § 301 action against his employer, for breach of the collective-bargaining agreement, and his union, for breach of its duty of fair representation. On appeal of a jury verdict for plaintiff, the sole issue before the court was whether Badon should apply retroactively to Pitts’ action. Badon was decided while Pitts was pending on appeal. In Pitts the court said, p 332:
"If Badon is to be given retroactive effect thereby rendering the six month limitation period of § 10(b) applicable to this action, then, clearly, the within cause is timebarred. Conversely, if Badon is limited to prospective application, then, pursuant to this Circuit’s previous line of authority, Michigan’s three-year tort statute governs and the action is timely. Echols v Chrysler Corp, 633 F2d 722 (CA 6, 1980); Gallagher v Chrysler Corp, 613 F2d 167 (CA 6, 1980), cert den, 449 US 841; 101 S Ct 119; 66 L Ed 2d 48 (1980); Smart v Ellis Trucking Co, 580 F2d 215 (CA 6, 1978), cert denied, 440 US 958; 99 S Ct 1497; 59 L Ed 2d 770 (1979).” (Footnote omitted.)
The Pitts panel then analyzed the case using the factors for determining retroactivity enumerated in Chevron Oil Co v Huson, 404 US 97, 106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971): (1) whether the decision requested to be applied retroactively overruled clear past precedent or decided an issue of first impression not clearly foreshadowed, (2) whether retroactive effect would further or retard the operation of the newly announced principle, and (3) whether retroactive effect would be inequitable. The Pitts panel then stated, pp 333-334:
"Applying the Chevron factors to the case at bar, this Court is persuaded that the shorter limitation period adopted in Badon should not be applied retroactively. As previously indicated, prior to Badon, this Court had consistently held that Michigan’s three-year tort statute applied to § 301 actions. It is true that our decisions applying the three-year statute postdated the accrual of Pitts’ cause of action and filing of suit. Thus, he cannot be said to have relied on those decisions. Nevertheless, the Supreme Court decision directing federal courts to apply the most analogous state statute of limitations in § 301 actions was decided in 1966, several years prior to the events culminating in this lawsuit. International Union, UAW, v Hoosier Cardinal Corp, 383 US 696; 86 S Ct 1107; 16 L Ed 2d 192 (1966). As cases in this Circuit applying Hoosier Cardinal Corp, demonstrate, Pitts could quite justifiably conclude that Michigan’s three-year, tort limitations period governed his actions.
"With respect to the second element identified in Chevron, this Court is aware that the rationale espoused in Badon for adopting the six-month, NLRA limitations period is that the six-month period strikes a proper balance between the national interest in the finality of private labor settlements and the employee’s interest in overturning an unjust settlement under the bargaining agreement. Badon v General Motors, supra, 679 F2d at 99, citing United Parcel Service v Mitchell, supra 451 US at 70-71, 101 S Ct at 1568 (Stewart, J. concurring). The Court does not believe, however, that prospective application of that limitations period will seriously undermine the policy behind its adoption. Certainly, retroactive application would promote the finality of private labor settlements by immediately insulating from attack any resolution concluded for a period of six months. However, this finality is achieved at the expense of the employee’s justifiable belief that his ability to undo iniquitous settlements, the countervailing weight in the balance, would extend for three years. Accordingly, the Court concludes that the policies justifying the result in Badon are not offended, indeed they are promoted, by limiting the six-month limitations period to prospective application.
"The third component of the Chevron analysis is the 'inequity imposed by retroactive application.’ As in Chevron, this Court concludes that such application would be extremely unjust since the plaintiff 'could not have known the time limitation imposed upon him.’ Indeed the injustice would be even more egregious in the instant case because, in Chevron, the parties had merely reached the discovery stage of the litigation, whereas in the matter sub judice the case has already proceeded to trial and judgment.
"In sum then, the Court is constrained to conclude that the six-month statute of limitations adopted in Badon for suits of this nature should not be given retroactive effect.”
We find the reasons for nonretroactivity equally, if not more, compelling in this case. First Badon and DelCostello overruled clear past precedent. Plaintiff’s attorney could justifiably rely on Mitchell, decided three months after plaintiff’s cause of action accrued. By doing so, he would have turned to GCR 1963, 769.9(2) and MCL 600.5001(3) and found that the 20-day period in the court rule could not apply. Turning then to federal authority in the Sixth Circuit, Echols, supra, Gallagher, supra, and Smart, supra, plaintiffs counsel could reach the conclusion that plaintiff had three years in which to file her action in Michigan. Furthermore, the policies justifying the result in Badon and DelCostello are not offended by nonretroactivity in this case. Plaintiff filed her action only 3-1/2 months after a six-month period had run. Obviously, her claim could not be considered stale. Moreover, this is not a case of plaintiffs disgreement with an arbitrator’s decision, but an allegation that her union was so negligent that the substance of her discharge dispute was not heard and cannot now be decided by an arbitrator. Finally, applying Badon retroactively in this case would be inequitable. Plaintiffs attorney justifiably relied on existing precedent which held that Michigan’s three-year period of limitation applied, given the specific prohibition against the use of GCR 1963, 769 for matter of labor disputes.
Nevertheless, and regardless of the fact that we find that the Chevron analysis compels nonretroactivity, we must follow Smith, supra. In that case, an en banc panel of the Sixth Circuit decided by a vote of eight to three that it was not necessary to apply the Chevron analysis to determine whether DelCostello applies retroactively. Instead the court said:
"[B]ecause the Supreme Court implicitly held in Del-Costello that the statute of limitations should be applied retroactively by barring the claim that was in front of the Court * * * Accordingly, we hold that the six-month statute of limitations for hybrid, section 301/ unfair representation claims is applicable to all cases pending at the time DelCostello was decided.” Smith, supra, p 375.
The dissent in Smith disagreed that a Chevron analysis could be bypassed. The dissent then analyzed the Chevron factors and concluded that the six-month limitation period should not apply to § 301 hybrid cases filed pre-DelCostello in Michigan.
"The majority apparently forgets, or ignores, the uniqueness of the circumstances confronted by the circuit with respect to Michigan and Kentucky law; while in nearly all other jurisdictions in the nation DelCostello expanded the time for the initiation of [301/hy-brid] lawsuits, in these two states the Court has substantially reduced that time period. In view of that unique situation, and the mandate of Chevron which commands a review of the circumstances of each case, I would require that in [301/hybrid] lawsuits filed in a timely fashion pursuant to the state law in effect prior to DelCostello, the § 10(b) bar would not be applied.” Smith, supra, p 382.
Although we agree with the above reasoning, because this is an issue of federal law, the Sixth Circuit’s decisions are binding precedent. Thus, the majority opinion in Smith controls.
Affirmed.
GCR 1963, 769.9 states in pertinent part:
".9 Vacating an Award
"(1) upon application of a party, the court shall vacate an award where:
"(a) The award was procured by corruption, fraud or other undue means;
"(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
"(c) The arbitrators exceeded their powers; or
"(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing as to prejudice substantially the rights of a party.
"But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
"(2) An application under this Rule shall be made within 20 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 20 days after such grounds are known or should have been known.”
"Sec. 5805. (1) A person shall not bring or maintain an action to recover damages for injuries to person or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods 'of time prescribed by this section.
"(8) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.”
NLRA § 10(b) states in pertinent part:
"(b) Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designed by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.” 29 USC 160.
LMRA § 301 states in part:
"Suits by and against labor organizations.
"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29 USC 185.
We note that even though plaintiff does not state in her complaint that this action is one brought pursuant to § 301, we find that her action must be considered as brought under that statute. See Avco Corp v Aero Lodge No 735, International Association of Machinists & Aerospace Workers, 376 F2d 337, 340 (CA 6, 1967).
MCL 600.5001(3); MSA 27A.5001(3), provides;
"(3) The provisions of this chapter shall not apply to collective contracts between employers and employees or associations of employees in respect to terms or conditions of employment.”
"3This Court has recently determined, employing the Chevron analysis, that United Parcel Service v Mitchell should be applied retroactively. Lawson v Truck Drivers, Chauffeurs & Helpers, Local Union 100, 698 F2d 250 (CA 6, 1983). The conclusion arrived at in the instant matter is not in conflict with Lawson. In Mitchell, as this Court observed in Lawson, supra, at 332, the Supreme Court was merely clarifying a rule — a rule which had been established 15 years earlier in International Union, UAW v Hoosier Cardinal Corp, 383 US 696, 86 S Ct 1107, 16 L Ed 2d 192 (1966). Hoosier Cardinal, held that 'the timeliness of a § 301 suit * * * is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.’ Id. at 704-705, 86 S Ct at 1112-1113 (emphasis added). The Supreme Court in Mitchell was simply 'called upon to determine which state statute of limitations period should be borrowed and applied to an employee’s action against his employer under §301.’ United Parcel Service, Inc v Mitchell, supra, 451 US at 57, 101 S Ct at 1561 (emphasis added). Accordingly, this Court concluded that Mitchell does not represent 'the kind of "clean break” with past precedent contemplated in Chevron.’ Lawson, supra, at 254.
"In Badon, however, this Circuit decided, notwithstanding the foregoing precedent directing utilization of a state limitations period, that in Michigan the courts must apply a federal statute of limitations to § 301 actions. Badon therefore is not a mere clarification of an established rule nor was it clearly foreshadowed by other decisions in this area of the law. Rather, Badon creates a new rule of law and represents a clean break with past precedent.
"The Court would observe that the Supreme Court has recently granted ceriorari in two cases to consider the suitability of applying § 10(b) to § 301 actions. DelCostello v International Brotherhood of Teamsters, 679 F2d 879 (CA 4, 1982) cert granted 459 US 1034; 103 S Ct 442, 74 L Ed 2d 599 (1982); Flowers v Local 2602, United Steelworkers of America, 671 F2d 87 (CA 2, 1982). This, of course, does not alter our characterization of Badon as an unforeseen development in the law.
"For the foregoing reasons, the Court concludes that the propriety of affording Badon retroactive effect, the issue presented in the matter sub judice, is distinguishable from the issue of applying Mitchell retroactively and it follows, a fortiori, that the instant case is distinguishable from Lawson.’’ | [
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Butzel, J.
Plaintiff, William L. McComb, seeks by certiorari to set aside the action of the common council of the city of Lansing in removing him from the office of alderman, to wMch he had been duly elected. As chairman of the garbage committee, McComb had considerable dealings with a corporation holding a contract with the city for the disposal of its garbage and refuse, and took an. active part on behalf of the city in negotiations relative to the performance and attempted renewal of this same contract. This corporation operated the Portland Piggery, located in Ionia county, which is near Ingham county, in which Lansing is situated.
Large expenses and losses were incurred .by the city during the life of the contract, and several gross irregularities were discovered. A committee of investigation appointed by the council made written findings in which plaintiff was charged with accepting bribes in connection with the contract. The committee also filed a complaint in the Ingham county circuit court, and, on petition of the prosecuting attorney, the Hon. Charles B. Collingwood was appointed a “one-man” grand jury to investigate several phases of the Lansing city administration. An exhaustive investigation resulted in the conclusion that charges made against other branches of the city government were groundless. Plaintiff was declared guilty of accepting a bribe, however, and the judge ordered the prosecuting attorney to institute criminal proceedings, and the common council at the same time to take steps to remove plaintiff from the office of alderman.
The report of the judge’s findings was duly filed and spread upon the minutes of the council and a date set for a special meeting to hear the charges against plaintiff. Plaintiff was present at the meetings and participated in them. The hearing was postponed on account of plaintiff’s illness, but on the adjourned day plaintiff was part of a quorum in attendance. Notwithstanding the fact that no testimony was introduced, a motion to remove plaintiff prevailed without a dissenting vote. Plaintiff took no part in the vote, but his counsel filed a written protest against the entire proceedings, claiming that they were irregular and unwarranted by law, and complaining of the council’s failure to serve plaintiff with a copy of the charges. An opportunity was tendered plaintiff to offer testimony in his own behalf, but he declined to do so, unlqss witnesses v^ere first produced to support the charges and to offer themselves for cross-examination. Many claims of error are presented on appeal. Inasmuch as the charges may be preferred anew, we shall discuss a number of the points raised.
The charges were preferred under 3 Comp. Laws 1929, §§ 17217, 17218. Section T7217, supra, directs an investigation by the circuit judge and requires the attendance of witnesses in certain cases after the filing of a complaint with the judge of a court of record, and a finding on his part of the existence of probable cause to suspect that a crime has been committed within his jurisdiction. Section 17218, supra, provides that, if the judge shall find from the evidence that there is probable cause to believe that a public officer, subject to removal by law, has been guilty of misfeasance or malfeasance of office, or of any other offense prescribed as ground for removal, the judge shall make a written finding, setting up the offense so found, and serve the finding* upon the public body having jurisdiction under the law to conduct the removal proceedings against such officer. This finding, it is further provided, shall be a sufficient complaint as a basis for the removal of the officer, and the public body shall proceed in the method prescribed by law for a hearing and determination of such charges.
It is claimed that, inasmuch as it appears that the alleged crime was committed in the county of Ionia, in which the judge had no jurisdiction, his action was improper. Without determining where the alleged crime took place, we hold that the circuit court was possessed of jurisdiction in the instant case. The grand jury proceedings were instituted in good faith in Ingham county with probable cause to suspect that a bribery had occurred within the jurisdiction. The fact that it may have developed that the alleged crime was committed in another county does not vitiate the proceedings, which involve an elective officer holding a post in the jurisdiction.
Plaintiff further claims that there was no authority conferred, either by the charter or ordinances of the city, pursuant to which plaintiff might be removed. A city ordinance at one time provided for removal by the city council, after service of a copy of the charges on the accused party, a hearing, and a two-thirds vote of the council in favor of removal. The present city charter was adopted subsequent to the passage of this ordinance, and states (chap. 4, § 55):
“The city council may expel or remove from office any person elected to office by a concurring vote of three-fourths of all of the aldermen-elect: Provided, that in the case of the expulsion or the removal of persons elected to any office', provision shall be made by ordinance for preferring charges and trying the same, and no removal of an elective officer shall be made unless a charge in writing is preferred and ample opportunity given to make a defense thereto.”
No new ordinance was adopted after the charter provision became effective. Even assuming that there was no valid ordinance regulating the procedure, the charter provision, together with 3 Comp. Laws 1929, § 17218, constituted sufficient authorization for the proceedings, provided that, in pursuance thereof, plaintiff was given a fair hearing following presentation of the charges. See Hawkins v. Grand Rapids Common Council, 192 Mich. 276 (Ann. Cas. 1917 E, 700). Plaintiff was present at several meetings at which plans for a formal hearing were discussed, and had ample time in which to prepare his defense. Although failure to serve him with a copy of the charges may not have acted to his disadvantage in this particular case, plaintiff should have been served with a copy of the charges.
We believe, however, that plaintiff was denied a fair hearing on another ground. The findings of a judge, sitting as a one-man grand jury, are sufficient as a basis for the institution of removal proceedings ; they are insufficient to warrant a removal, however, unless evidence is introduced in substantiation of the charges. On certiorari, we may not inquire into the sufficiency of the evidence. In the instant case, however, no testimony whatsoever was introduced. A hearing before a grand jury usually is secret. The defendant need not be called and given an opportunity to defend himself, nor is he entitled to be confronted by the witnesses against him. The findings of the judge, if adverse to the party accused, are merely a conclusion that there is probable cause justifying the initiation of further action. 3 Comp. Laws 1929, § 17218, provides that the findings of the circuit judge “shall be a sufficient complaint as a basis for removal of said officer.” It does not authorize such removal without a fair hearing.
We need not pass upon the question of whether the ordinance was repealed by the subsequent charter provision. The ordinance provided in some detail for a proper hearing of the charges, and some of its mandates have not been carried out. If, however, the claim is tenable that the ordinance was repealed by implication upon the adoption of the charter provision in addition to being served with a copy of the charges, plaintiff was entitled to a fair hearing. This he did not have. The action of the council in ousting* plaintiff was illegal. He is entitled to reinstatement, but without prejudice to the council’s right to remove plaintiff after a re-presentation of the charges and a fair hearing. As the question is a public one, no costs will be allowed.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Clark, J., took no part in this decision. | [
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Sharpe, J.
The information on which defendant was convicted charged that, on the first day of December, 1931, and for 30 days prior thereto, at the city of Battle Creek, she “did then and there knowingly accept, receive, levy, or appropriate certain moneys or valuable things, without consideration, from the proceeds of the earnings of one Opal Chambers, derived from prostitution. ’ ’
Opal Chambers, whose home was in Kalamazoo, testified that on October 17, 1931, she went with the defendant to her home in Battle Creek under an arrangement that she should there engage in prostitution and pay to the defendant one-half of the moneys received by her; that she engaged in such acts at defendant’s home until the 24th day of December, and that she paid the defendant between $25 and $30 each week pursuant thereto. Her testimony as to the arrangement under which she went with the defendant to Battle Creek is corroborated by that of an apparently disinterested witness.
The errors assigned are upon the admission or rejection of testimony on cross-examination of Opal Chambers and the defendant. We have examined the record with care, and are satisfied that the defendant was not prejudiced by the rulings of the court thereon. The defendant had a fair and impartial trial, and was ably defended by her counsel. No reversible error appears. .
The judgment is affirmed.
McDonald, C.. J., and Clark, Potter, North, Fead, Wiest, andBuTZEL, JJ., concurred. | [
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Butzel, J.
Cecil F. Taylor and wife are the owners of a very substantial equity in property at the northeast corner of Livernois avenue and Six Mile road in the city of Detroit. They purchased it on contract from Henry Diehr, the owner of the fee, in July, 1924, when the property had a frontage of 62 feet on Six Mile road and 100 feet on Livernois avenue. Condemnation proceedings were begun by the city of Detroit on February 28, 1927, for the purpose of widening Livernois avenue. The city sought to take a 27-foot strip off the Six Mile frontage of the Taylor lot and thus leave a parcel, with a frontage of 100 feet on Livernois avenue and of 35 feet on Six Mile road. A jury was impaneled on May 16, 1927, long before negotiations for the sale of the Taylor equity were begun, a tentative agreement was arrived at between the Taylors and the city, fixing the value of the 27 feet sought at $27,835.90, and an award was made accordingly by a jury verdict rendered in May, 1929. A part of the 35 feet remaining was leased to a restaurant and another portion thereof was occupied by a gas station.
A short time prior to November 24, 1928, the Taylors entered into a written preliminary agree ment for the sale of the entire parcel to a drug company for $58,000, with a down payment of $10,000 and monthly payments of at least $300, including interest at the rate of 6 per cent, per annum, until the purchase price was paid. It further provided that the purchaser was to receive the Livernois condemnation award. The sale to the drug company was never consummated.
There were two leases on the property, one dated October 24, 1928, for a term of five years, with a privilege of cancellation at the end of two years in case of sale of the property, conditioned upon indemnification of the lessee for any damages up to $2,500; the other for a term of two years from the first day of August, 1928.
Defendant Harvey B. Dumas, a real estate dealer and president of the Livernois Improvement Association, heard of the proposed deal with the drug company, and, after it fell through, requested the right to sell the property. Dumas claims that on November 24, 1928, Taylor signed a listing card form giving Dumas the exclusive sale of the property for five days, at a price of $58,000, $10,000 to be paid down, the balance at the rate of $350 per month with interest, the total amount to be paid within two years. It also provided that Dumas was to receive a commission of $1,740 and everything obtained over $58,000; that any sale was to be made subject to the two leases hereinbefore mentioned; that the property was to be sold free from incumbrances, except “widening condemnation awards for which owner agrees to pay to purchaser.” A purported copy of the listing card was introduced in evidence, signed by Dumas alone, who testified that it was an exact duplicate of a form signed by Taylor. Dumas claimed that he had kept the dupli cate but destroyed it after the deal was consummated. The card introduced in evidence was produced from the files of Laverne Courtney, Taylor’s legal representative in the transaction. Taylor admitted that it was a copy of the agreement he had given Dumas, although he could not remember signing it.
Dumas interested defendant Harold B. Ward in the property. Ward was cashier of the Peninsular State Bank of Highland Park and occupied a high place in civic and other communal affairs, which seems to indicate that he was a man of position and character. Taylor claims that Dumas first represented to him that the property was being purchased by the bank itself for the erection of a building, but he admits that when he was told that the bank was not the purchaser he made no objection to a sale to Ward.
A memorandum agreement was executed and signed by plaintiffs. The parties met in the offices of the Peninsular State Bank of Highland Park on November 28,1928, together with attorneys for both vendors and purchaser. The usual form of land contract was executed as drafted. It substantially embodied almost all of the terms contained in the authorization given to Dumas for the sale of the property and in the earlier memorandum agreement, with the exception of the commission. The vendee took possession subject to the two outstanding leases, which he assumed. The contract provided that the vendee was entitled to any award made in the condemnation proceedings, but that he was to pay all street widening assessments and taxes levied against the property thereafter. The purchaser was also to pay plaintiffs’ costs and attorney fees in the condemnation proceedings.
It is claimed by defendants and denied by plaintiffs that, on December 15, 1928, the date set for the down payment and consummation of the deal, Dumas stated that he desired to acquire an interest in the property and borrowed $500 of the down payment from the Taylors for that very purpose. Courtney, the attorney who represented plaintiffs,, corroborated the testimony of Dumas and Ward on this point, while Taylor testified that the loan was requested so that Dumas in turn might loan the money to Ward, to enable him to complete the deal.
Within 10 days after the contract was entered into between plaintiffs and Ward, defendant Ward executed an option to Dumas, entitling the latter to acquire one-half of the vendee’s interest in the contract. This option was exercised on December 15, 1928, and was the occasion for the $500 loan made to Dumas. Payments were made regularly for a considerable period. The proceedings in the condemnation suit were concluded on May 9, 1929, and the jury’s verdict was confirmed on the 11th day of the following month. The sum of $27,835.90. was allowed for the 27 feet appropriated by the city. This amount, less $644.62 for attorney fees, was paid to Ward and divided between Ward and Dumas as owners of half interests, after a deduction of $3,500. After the preliminary contract was executed and just prior to the consummation of the deal on December 15th, Taylor and Dumas went to see Diehr, the owner of the fee, who agreed to be satisfied if $3,500 of the award was applied on his contract with Taylor, as his share in the condemnation award.
In December, 1929, Ward told plaintiffs that he was unable to continue with the contract owing to financial reverses. At that time, all payments and taxes then due had been paid. Plaintiffs not only-consented to an assignment of Ward’s interest to Dumas but also gave Ward a written memorandum releasing him from all further liability under the contract. Plaintiffs also gave Dumas an extension of three additional years in which to pay the balance of the contract, conditioned upon his paying $1,000 on the contract and $3,000 more on or before November 1,1930. Payments were kept up by Dumas with a fair degree of regularity for over a year. He paid the $1,000 necessary to secure an extension on the contract and also sums aggregating $1,400, or thereabouts, in addition to the regular monthly payments of $350 provided for by the contract. However, after January, 1931, he became irregular in the amounts of his monthly remittances. The assessment against the property for the widening of Livernois avenue had not been levied at the time of the trial. It is estimated that it will run into a large amount.
In October, 1931, Dumas asked plaintiffs for a large discount on the balance due them in consideration of a cash settlement. They'became indignant, consulted counsel, and on October 31, 1931, filed their bill of complaint against Ward and Dumas, claiming rescission on the ground that the contract was entered into in reliance upon a promise that the condemnation money was to be used to erect a building on the premises, in order that plaintiffs might be paid the balance due from the proceeds of a mortgage to be placed on the property when thus improved; that defendants had no present intention of keeping such promise when made; that they have kept the award money, with the result that plaintiffs not only have lost a part of their property through condemnation, but also a large sum in excess of the amounts paid to them.
The contract itself is- so unnsnal and unbusinesslike that the transaction challenges the closest scrutiny. We are constrained, however, to follow well-known principles of law and hold that plaintiffs are not entitled to the relief given them by the trial judge, who decreed rescission of the contract and payment of the sum of $13,443.73 to plaintiffs.
There is much controverted testimony as to whether Ward and Dumas ever made any promises to erect a building with the money received from the award. Taylor is the only one who testified to any such statement coming directly from Ward. He is contradicted by both defendants. There seems to be little doubt that Dumas did discuss the possibility of erecting a building in a general way. Taylor, the plaintiff, and also his former stenographer, testified that he had made such representations before the preliminary agreement had been signed. Diehr, the owner of the fee, and his daughter also-testified that Dumas had made statements to that effect after the contract had been entered into, but, except as having a tendency to corroborate Taylor, these statements are immaterial. The declarations made to them cannot be considered as an inducement to the contract, inasmuch as they were made after signing the contract.
What seems especially significant is the testimony of Courtney, Taylor’s attorney in the transaction. He must be regarded as a disinterested witness, if not one prejudiced in Taylor’s favor. Yet, not one word appears in either Taylor’s or Courtney’s testimony to indicate that there was any discussion between the two of them with regard to the erection of a building, although Courtney was commissioned either to draw up or examine the land contract. In the ordinary course of events a client would discuss all important provisions to be embodied in a con tract with his attorney. Taylor testified that Courtney drew the contract. Ward also had an able attorney looking after his interests. Both attorneys testified that they heard no mention of the erection of a building at any of the meetings arranged to close the deal. Neither do the land contract, the assignments and releases, nor any of the other numerous documents drawn up in connection with the deal contain any hint of the obligation to erect a building.
If the award money was to be used for the construction of a building, when was it to be erected? The contract provided that the property was taken subject to two leases, one of which had 19 months, and the other almost two years and possibly a longer period, to run. No building operations could be begun prior to their expiration or cancellation. A consideration of this fact, together with the clause providing for full payment of the balance due within two years, indicates that there was no advantage to be gained from a promise to build which could not be carried out until the time for full payment had almost expired. It may be argued that a cancellation of the leases could possibly have been arranged, yet nothing appears in the record to indicate that such an arrangement was even discussed between the parties. The terms of the written contract are inconsistent with the contentions of plaintiffs.
Even assuming that plaintiffs’ allegations were correct, there is no showing of a present intention not to keep the promise at the time it was made. Both plaintiffs and Ward were represented by counsel, and we regard it as significant that neither of them were told that the erection of the building was an important element of the contract, nor anything said in their presence with regard to the application of the condemnation money.
We are unable to see just what actuated plaintiffs in making what proved to be a foolish deal. Of course, the Livernois avenue widening condemnation suit had been pending for a number of years. There was no certainty as to when, if at all, the jury would bring in a verdict of necessity and award damages as stipulated. Plaintiffs had been paying on the contract for over four years. The temptation to sell at a large profit and at once realize the sum of $10,000 less the real estate commission, may have been the inducement to make the contract. In any event, plaintiffs were primarily interested in the payment of the balance due and not in the means by which the money would be obtained by defendants. It could matter little to plaintiffs whether a building was erected on the property, or not, provided they were paid, especially in view of the fact that no building could be placed on the property before the time set for completion of the payments had almost expired. It is significant that when plaintiffs released Ward, and gave Dumas an extension of an additional three years in which to pay the balance due them, nothing again was put in writing with regard to the erection of a building or the disposition of the money' received through the condemnation.
Even assuming that plaintiffs’ claims are correct, at most they were promises made contemporaneously with the execution of the contract. Plaintiffs claim that they were material negotiations that preceded the execution of the written instrument. Such negotiations, if material, cannot be admitted in evidence in order to change or vary the terms of a contract. They are merged therein. See Boston Piano & Music Co. v. Pontiac Clothing Co., 199 Mich. 141, 146; J. B. Colt Co. v. Cousino, 226 Mich. 518. Neither can plaintiffs claim relief hy alleging that they were induced to enter into the contract by defendants’ representations that a building would be erected with the award money. In the absence of proof that defendants had no intention to keep their promises, if and when made, plaintiffs cannot claim rescission or damages for fraud. Boston Piano & Music Co. v. Pontiac Clothing Co., supra; Dobson v. Whitker, 242 Mich. 308; Danto v. Charles C. Robbins, Inc., 250 Mich. 419.
Plaintiffs claim that Dumas was their agent and that his undisclosed purchase of an interest in the property prior to the consummation of the deal on December 15, 1928, constituted a breach of duty. The evidence really indicates that Dumas was a broker, entitled to all sums over $58,000 in addition to his commission. In Palmer v. Shank Fireproof Storage Co., 237 Mich. 627, the law is stated as follows:
“Where an agent is authorized to sell at a stated price, and is entitled to receive all that he can get over that price for his services in making the sale, he may indirectly become the purchaser himself without disclosing that fact to the principal.”
See Ranney v. Donovan, 78 Mich. 318; Montross v. Eddy, 94 Mich. 100 (34 Am. St. Rep. 323); Hutton v. Sherrard, 183 Mich. 356 (L. R. A. 1915 E, 976); Trost v. J. E. St. Clair Co., 250 Mich. 342. It is true that an agent, clothed with discretionary powers to make the best deal possible, cannot purchase for himself or collect a double commission without a full disclosure to his principal. Humphrey v. Eddy Transportation Co., 107 Mich. 163. Even if we accept plaintiffs’ theory that Dumas was such an agent, the Taylors waived their privilege of objection to the alleged misconduct of Dumas by going through with the deal on December 15, 1928, after they had been informed of Dumas ’ arrangements to purchase an interest. It would be inequitable to grant equitable relief to plaintiffs after they remained silent and accepted payments for almost three years. See Humphrey v. Eddy Trmsporlation Co., 115 Mich. 420; Marsh v. Whitmore, 21 Wall. (88 U. S.) 178; Bassett v. Brown, 105 Mass. 551; Bartleson v. Vanderhoff, 96 Minn. 184 (104 N. W. 820).
The court refused to, permit a copy of plaintiffs’ earlier contract with the drug company to be introduced in evidence. There is no question but that this evidence was not admissible for the purpose of contradicting or altering the contract in the instant case. Plaintiffs claim rescission on the ground of fraud, however. A wider latitude is allowed in the admission of testimony when the existence of a fraud is an issue (Gumberg v. Treusch, 103 Mich. 543), subject to the natural limitation that such testimony must have some legitimate bearing upon the ease. Lewis v. Whitney, 238 Mich. 74.
In Ross v. Miner, 64 Mich. 204, 206, this court said:
“But it is quite possible that fraud can be made out by proof of subsequent acts throwing light on what was done before the dealings assailed.”
Again in Krolik v. Lang, 187 Mich. 286, 291, we said:
“It is an elementary rule that much latitude may be allowed in admission of circumstantial evidence in cases where fraud is charged * * * ‘and no rigid rule of evidence can be applied to measure the admissibility of circumstances, for they arise out of the condition, relation, conduct, and declarations of the parties, and those are infinitely diversified.’ ”
To show intent to defraud, or the knowledge by defendant of the falseness of representations, we have permitted evidence of similar transactions made just prior to or at about the same time as the one in question, in which defendant made similar representations. J. B. Millet Co. v. Andrews, 175 Mich. 350; Jacobs v. Queen Insurance Co., 183 Mich. 512. See, also, Jones v. United States (C. C. A.), 265 Fed. 235; Loftus v. Sturgis (Tex. Civ. App.), 167 S. W. 14. In the case of Janiszewski v. Shank, 230 Mich. 189, the court permitted the introduction of a written sales agreement entered into prior to the contract sought to be rescinded, as relevant evidence tending to refute the claim that fraud was used to obtain a later contract embodying the identical consideration and terms included in the sales agreement.
The contract made with the drug company, although in no way indicative of the terms of the contract with defendants, nor conclusive as to what representations were made to the plaintiffs, is relevant, in so far as it has a tendency to minimize the likelihood that defendants made the fraudulent representations alleged to induce a contract more favorable' to plaintiffs than one they had been willing to make but a short time previous. We believe that the contract was admissible solely for this purpose and no other.
Ward has been released from all liability on the contract by plaintiffs. Dumas still remains personally liable, and legal steps may be taken by plaintiffs to secure the return of the property. If they proceed in equity, a deficiency decree may be ordered, if necessary.
The bill will be dismissed. The decree of the lower court is reversed, with costs to defendants.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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Clark, J.
Defendant was convicted of second degree murder of Leslie Casteel and prosecutes review.
Deceased, several times married and divorced, and defendant became sweethearts. Their relations, intimate and continued, were marred by opposition of defendant’s mother and by violent and perhaps not groundless jealousy of defendant. There was talk of marriage. There is evidence of threats by defendant to kill deceased if he did not quit consorting with another woman. Deceased owned a revolver. Defendant at times had it in her -possession. She purchased cartridges for it and received instructions as to loading and shooting it. Deceased was a large man, young, and of great strength and vigor. Finally, when it was considered that deceased was about to leave their home city of Flint, he and defendant' met by appointment, and she, driving her automobile and he sitting beside her, went to a cemetery, where defendant, while backing out of the car, shot deceased several times as he sat in the car. She, according to her statement, aided the deceased from the cal to the ground, or, according to the testimony of another witness, she pulled the body from the car. She drove back to the city and reported the fatal shooting. The defense is excusable homicide, shooting in self-defense. Her contention is that she was in fear of deceased because of his threats and known violence; that when they reached the cemetery they quarreled; that he produced the revolver and pointed it at her, threatening to kill; that she struggled with him; took the revolver from him, and while trying to get away shot him. The chief.question is on the weight of the evidence. The most significant fact in her favor is that she was heard to scream before the shots were fired.- This may be said to be nearly if not quite undisputed, and it makes the case close and difficult as to fact. But against this is the improbability of her wresting the revolver from the deceased, and the probability that he did not then have it, her threat or threats, her violent jealousy, and her purchasing cartridges and seeking instruction in the use of the revolver. Upon a careful study of the record, we must decline to disturb the verdict.
The trial judge said — quoting from the charge—
“You have no right to comment among yourselves upon the fact that the respondent in this case failed to take the stand; she had a right to be sworn, she had a right not to be sworn, and the election is solely with her,’ ’
The restriction to “comment” is urged as too narrow. Perhaps a broader word might well have been chosen, but the instruction was in respect of the jury’s deliberations, and must have been understood to mean that the matter should not enter into them, and hence we hold it not to be reversible error.
There is much argument in the briefs relative to instructions given and to requests not given as preferred. We have examined them with care. The charge as a whole appears to have been prepared largely and substantially from decisions of this court. Upon the questions urged the bench law is abundant. Nothing will be gained by repetition. The case, including the defense of excusable homicide, was given fairly to the jury. We find no reversible error. No other question calls for discussion.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Btjtzel, JJ., concurred. | [
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] |
Wiest, J.
The State highway department, in the name of Grover C. Dillman, commissioner, deposited funds of the' State, without bonds, in the Metropolitan Trust Company to the amount of $304,305.90. The trust company was taken over by the banking department in June, 1931, and placed under receivership. The claim of the hig’hway department was filed with the receiver as a preferred claim but no mention made of the prerogative of the State to. have payment of its money. The State petitioned the court to adjudge return of the money so deposited under asserted sovereign prerogative right.
The circuit judge refused, and the State appealed.
At the argument the attorney general abandoned any claim that defendant was a trustee ex maleficio.
Affirmed, for reasons stated in Fry v. Equitable Trust Co., ante, 165. No costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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McDonald, C. J.
Tbe question involved in this case is whether an appellant is required to obtain leave of the Supreme Court to appeal from a circuit court judgment in a summary proceeding for the restitution of premises sold on land contract.
In such a proceeding, the statute, 3 Comp. Laws 1929, § 14979, provides that if the court finds the defendant is unlawfully withholding possession of the premises he shall ascertain the amount due to the plaintiff on the contract and enter it in the judgment. In this case judgment was entered in favor of the plaintiff, and the court found there was $375 due to her on the contract. The defendant filed a preliminary notice of appeal. On motion of the plaintiff, the circuit judge dismissed the appeal on the theory that the judgment was less than $500, and leave to appeal had not been granted by the Supreme Court in accordance with the statute, 3 Comp. Laws 1929, § 15491. From the order- entered, the defendant has appealed.
The judgment ’ appealed from is not a judgment for $375. It is merely a' judgment for restitution of premises unlawfully withheld. The amount found due on the contract is no part of the judgment and cannot be enforced against the defendant. Lemm v. Spencer, 242 Mich. 366; Bauer v. Wasson, 66 Mich. 256.
The defendant had a right to appeal without leave of the Supreme Court. In entering the order of dismissal, the circuit court erred. No question is raised as to his jurisdiction over the appeal.
The judgment is reversed, with costs to the defendant.
Clark, Potter, Sharpe, North, Fead, "Wiest, and Btitzel, JJ., concurred. | [
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Fead, J.
In 1924, by means of many letters and telegrams, defendant contracted to employ plaintiff for three years, as district sales manager to organize and direct a sales force of eight or more men in the vending of spotlights. See 259 Mich. 242. Defendant having prevented performance of the contract by him after a few days’ work, plaintiff brought this action for damages. The court directed a verdict for plaintiff for his expense in moving from Detroit to Boston and directed a verdict against him on his claim for loss of earnings. Plaintiff reviews.
Plaintiff’s compensation was to have been on a commission basis. It was agreed that he should have a drawing account of $150 per week the first month, and $200 per week thereafter, commissions to be credited against the drawing account. Plaintiff presented no evidence of commissions he probably would have earned had be been permitted to perform. He urges that the drawing account was a guaranty of minimum commissions. He adduced no testimony of the possible or probable cost to him of performance. He argues that, because he was prevented from performing, it will be presumed that he would have earned enough commissions to pay expenses in addition to the drawing account. No authority is cited to support such presumption.
Assuming that the testimony sufficiently supports plaintiff’s theory of the drawing account as a guaranty of minimum commissions, to justify its submission to the jury, the failure to show the probable expense of performance left the jury without a basis for a net result of damage to plaintiff, except from pure speculation.
Plaintiff had the burden of proof of both items of his net loss, probable earnings, and expense. Having failed to show the latter, he is not entitled to recover. Callender v. Myers Regulator Co., 250 Mich. 298.
Judgment affirmed.
McDonald, C. J., and Clark, Potter, Sharpe, North, and Wiest, JJ., concurred. Butzel, J., did not sit. | [
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Butzel, J.
Defendant, Interstate Motor Freight Company, a Michigan corporation, transports freight by motor trucks to various .points in Michigan and nearby States. It sold a-motor truck on contract to one Joseph Cesiel and, coincident thereto, gave him a “hauling contract” for a term of 18 months, some of the important provisions of which, were as follows: Cesiel agreed to transport freight for defendant as a contractor and not as an employee; he was to haul and distribute freight to all points designated by defendant by motor truck and trailer, to be equipped with tarpaulins large enough to protect loads from the elements; he was to insure the truck against loss by fire, theft, or collision, and to carry public liability, property damage, and compensation insurance. He was to use the truck exclusively in the service of defendant on penalty of cancellation of the contract, and to make all c.o.d. collections and return them promptly to defendant. Defendant agreed to insure the freight loads, charging the cost against Cesiel up to one and one-half per cent, of the pay load; it also agreed to furnish suitable facilities for the proper handling of freight at its terminals. Cesiel was to maintain schedules, give proper and efficient service, and deliver and haul freight of defendant in accordance with the company’s methods of handling. Cesiel was to receive 70 per cent, of the actual freight charges indicated on script sheets received by him, settlements to be made twice a month. Defendant further agreed to furnish Cesiel all the tonnage possible, with a minimum of two round trips per week. No specific tonnage was otherwise guaranteed. It was further provided that any violations of the rules and regulations of defendant or of the Federal laws, together tending to affect the interest, directly or indirectly, of defendant, would operate to void the contract forthwith. The contract was drafted entirely by defendant.
Joseph Cesiel was a farmer living in Romeo, Michigan, and did not drive the truck at any time or have anything further to do with the hauling contract after signing it. He entered into this agree ment solely for the purpose of giving employment to his two sons Edward and Henry, who looked after the operation of the truck and the hauling of freight for defendant. Edward did the driving and received from defendant an identification card as follows:
“Driver’s identification card. Name: Edward Cesiel. Address 3382 E. Warren, Detroit, Mich. Operators number: A-12325. vChauf. No. 15209. Card No. 6-4.
“This certifies that the above-named operator is in good standing of the Interstate Motor Freight Corporation of Detroit, Michigan, recognizing all the rules, laws and regulations of the corporation as well as public safety.
• “This card is for identification purposes and is not to be used for obtaining credit.
“Interstate Motor Freight Corporation, by Geo. E. Watts, safety engineer.
“This license must be produced by the operator whenever asked to do so. It must be turned in to the safety engineer when leaving the employ of the corporation.
“Edward Cesiel,
“Signature of operator.
“Over. (Reverse side)
“In accepting this identification card, I, Edward Cesiel, fully understand and agree that my brother, Henry Cesiel, is not to drive truck number 38 which is owned by me. I further agree that if my brother, Henry Cesiel, is caught operating said truck it will mean the revoking of my contract with the Interstate Motor Freight Corporation.
“Signed: Edward Cesiel.”
It will be noted that, under the terms of the card, Edward was authorized to operate the truck and his brother Henry forbidden to operate it on penalty of revocation of the contract.. The card was to be turned in when Edward left defendant’s “employ.”
On March 24,1931, while the contract was in force, an accident occurred near Williamston, Michigan. The truck, driven by Edward Cesiel, while transporting a load of freight from Grand Rapids to Detroit, collided with a car driven by Robert Cooper, who sustained severe injuries from which he died a week later. Emma A. Cooper, as administratrix of his estate, brought suit against the Interstate Motor Freight Company. The jury rendered a verdict of $25,000 against defendant, and it appeals from the judgment thereon.
It is unnecessary to discuss the details of the accident. The testimony sustains a verdict based on a finding that decedent was free from contributory negligence, and that his death resulted from the negligence of the driver of the truck. A number of questions of law raised in the lower court are again presented on appeal, however.
The important question is whether Edward Cesiel, the driver, was the agent of Joseph Cesiel, and the latter was an independent contractor, or whether the relationship of master and servant existed between defendant and the Cesiels. This question has been before the court on many occasions. The great variety of fact situations presented prevents the application' of a set rule, but the presence of certain facts, although not conclusive by any means, tend to indicate the nature of the relationship. The general test in each case is whether defendant retained the right of control over means employed in performing the services contracted, as distinguished from the result. Defendant asserts that the truck did not belong to it; that it did not hire the driver or pay'him; that the contract was for a long term and not terminable at the will of employer, as is usual in the master-servant relationship; that the contract distinctly states that Joseph Cesiel is an independent contractor and liable for the negligent operation of the truck; that the compensation on a percentage basis is more consistent with an independent contractor relationship than it is with a master and servant arrangement.
The testimony, however, shows that except for the fact that the truck was purchased, and the contract entered into in his name, Joseph Cesiel had absolutely nothing to do with the performance of the contract. The fact that the compensation was not paid to him is not determinative, except in conjunction with the undisputed fact that he exercised no control over the operations whatsoever. The truck was purchased in order to give employment to his two sons. While these facts may be consistent with the relationship of an independent contractor, they are more apt to suggest an employer-employee arrangement between defendant and Cesiel’s sons. The contract provided that Cesiel was to haul in accordance with the company’s method of handling freight, which undoubtedly tends to indicate defendant’s right of control. The provision that any violation of the rules of defendant would operate to void the contract is still further .corroboration. The identification card declared that the operator was in good standing with the defendant, “recognizing all the rules and laws of the corporation as well as public safety.” It further provided that the card must be turned in by the operator of the truck when “leaving the employ of the corporation.” It stipulated also that if Edward permitted his brother Henry to drive the truck, it would mean a revocation of his contract with defendant. The provisions of' the identification card, considered together with the terms of the hauling contract and the manner in which it was carried out, lead us to the conclusion that defendant retained control over the operation of the truck and the performance of the contract to such an extent that the relationship was that of master and servant. Even if Joseph Cesiel should be regarded as an independent contractor, his sons fell under the domination of defendant to such an extent that they became the latter’s servants.
Defendant places great stress upon the case of Gall v. Detroit Journal Co., 191 Mich. 405 (19 A. L. R. 1164), in which a truck driver was held to be an independent contractor. It will be noted that the contract in that case specifically reserved to the driver the right to deliver according to his own means and methods of conveyance and that his operations were not to be subject to the control of others. “He could use a horse, an automobile, or carry the papers on foot, provided he got them to the right persons, at the right places, and upon time.” In the instant case, a right of control was reserved and exercised by defendant to such a degree as to create the master and servant relationship. See Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918C, 664); Van Simaeys v. George R. Cook Co., 201 Mich. 540; Conrad v. Cummer-Diggins Co., 224 Mich. 414; Dennis v. Sinclair Lumber & Fuel Co., 242 Mich. 89; Eber v. Bauer, 252 Mich. 571; Marchand v. Russell, 257 Mich. 96; Lynn v. Roberts, 257 Mich. 116; H. E. Wolfe Construction Co. v. Fersner (C. C. A.), 58 Fed. (2d) 27; Howard W. Luff Co. v. Capece (C. C. A.), 61 Fed. (2d) 635.
There was error, however, in the computation of damages. Decedent and one Henry T. Love were copartners engaged in the electrical business at Howell, Michigan. They each contributed their personal services and approximately $5,000 to the capital of the business, as well as continued additions to the firm’s capital. The testimony revealed that each partner drew $40 a week as “salary,” and that the year prior to decedent’s death ea<?h partner withdrew $302.50 in profits above his salary. Just how much of the “salary” represented profits arising out of the capital investment in the business was not definitely shown. At any rate, it was error to admit evidence as to the profits withdrawn from the business in the absence of an allocation of any part of these profits to capital investment. Plaintiff suggests that the present worth of $302.50, the amount that decedent withdrew the previous year in excess of his salary, be determined in accordance with the mortality tables, and that the judgment be affirmed after deducting the sum so computed from the lower court’s judgment. The difficulty in such a procedure arises from the fact that there is no indication as to whether the $40 a week withdrawal represented'decedent’s earning capacity, or whether this amount was partly realized through the investment of the capital. The court permitted, notwithstanding defendant’s objection, the question to be propounded to Love as to “what the clear profit, the clear earnings” of decedent were the year preceding his death. In arriving at its decision, the jury may have enlarged the verdict in the belief that the profits earned above salary would be greater in normal times. We cannot tell how the verdict rendered was computed. One thing is certain, however, the erroneous admission of testimony as to profits provided an opportunity for' an increased verdict. In Silsby v. Michigan Car Co., 95 Mich. 204, in holding as reversible error the admission of testimony showing past shop profits in determining damages in a personal injury suit, we stated:
“Furthermore, the loss of profits in conducting a business involving the labor of others is not a necessary consequence of personal injury to the plaintiff. The extent of his recovery upon this ground would be what his services were worth in the conduct of such a business as he was engaged in.”
See, also, Baxter v. Railway Co., 264 Pa. 467 (107 Atl. 881, 9 A. L. R. 504); Lo Schiavo v. Northern Ohio Traction & Light Co., 106 Ohio St. 61 (138 N. E. 372, 27 A. L. R. 424).
For the reasons stated, judgment is reversed, with costs to defendant, and the case remanded for a new trial.
Clark, Sharpe, and Fead, JJ., concurred with Butzel, J. McDonald, C. J., and Potter, North, and Wiest, JJ., concurred in the result. | [
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Potter, J.
Defendant was arrested and informed against for assaulting James Keegan with a dangerous weapon with intent to rob and steal. Prom judgment of conviction, defendant appeals, claiming the trial court erred in refusing to grant defendant one week after arraignment in which to prepare for trial; that the court erred in charging the jury with reference to accessories, with reference to defendant’s being an active principal, with reference to defendant’s testimony; defendant did not have a fair and impartial trial; and the court erred in not granting defendant’s motion for a new trial.
Defendant Gray and one Turner attempted to rob James Keegan, a keeper of a gasoline station at Hillman, Montmorency county, in the nighttime. Defendant awakened Keegan who sold and delivered gasoline' to defendant. Defendant asked for cigarettes. When Keegan entered the station, procured the cigarettes or turned to procure them, he was covered by Turner ’s sawed-off shotgun and ordered to hold up his hands. He did not do so. He was shot with a revolver or pistol. There was testimony from which it may be fairly inferred defendant Gray shot him. After Keegan was shot, defendant attacked him and Turner struck Keegan with a sawed-off shotgun which discharged and shot Turner in the stomach. Both Turner and Gray left the gasoline station. The shotgun was found about 75 feet from the station. Turner went a little distance farther and was found in a ditch, dying, and soon after died. Gray made his escape in an automobile. Turner berated Gray and said he had a notion to shoot him. Gray was captured at Fair-view, brought back to Montmorency county and placed in jail. He denied all participation in the crime. Examination was had June 16th, and defendant bound over to the circuit court June 18th, but a transcript of the testimony taken on the examination was not filed until June 24th. Defendant’s trial started the same day. He claims the court was in error in denying his motion for an extension of time to prepare for trial and relies on 3 Comp. Laws 1929, § 17196, which indicates that in case of arrest examination shall be held at a time not exceeding 10 days from time of arrest. It does not appear defendant would have been in any better position for trial 10 or 60 days from June 24th. No prejudice is shown to have resulted from a speedy and public trial.
The trial court did not err in refusing to grant an adjournment, a continuance over the term, a change of venue, quash the array, or grant a new trial.
Error is assigned upon the failure of the trial court to give two of defendant’s requests to charge, which requests do not appear in the record and are not discussed in defendant’s brief.
It is claimed incompetent evidence was introduced by the people over defendant’s objections but defendant’s brief does not point out the incompetent testimony complained of, or show defendant was prejudiced.
The verdict was not contrary to, but in accord with, the evidence, there being ample testimony to show defendant guilty either as a principal, a con federate, an accomplice of Turner or an accessory; and every person concerned in the commission of an offense, whether he directly commits the act constituting the. offense or procures, counsels, aids, or abets in its commission may be prosecuted, indicted, tried, and on conviction shall be punished as if he had directly committed such offense. 3 Comp. Laws 1929, § 17253.
The charge of the court is said to have been erroneous in relation to the burden of establishing defendant’s defense. We do not discuss it, no error having been properly assigned thereon in defendant’s reasons for appeal. We find no reversible error.
Conviction affirmed.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
Plaintiff’s decedent was killed in a collision between an automobile in which he was riding, driven by Cecil Hayes, and defendant’s street car. The court held both drivers guilty of negligence and directed a verdict for defendant on the ground that decedent was a guest passenger not paying for his transportation and Hayes’ negligence was imputed to him.
Hayes, John Hall, William Maitland, and decedent worked in the Michigan Central shops some miles from their homes. Hayes, Hall, and Maitland owned cars. They worked six nights per week. Decedent worked seven nights per week. Hayes, Hall, and Maitland had an arrangement by which each used his car in turn to convey the three to and from work. Decedent had an arrangement with each by which they transported him for $1 per week for six nights. Hayes, Hall, and Maitland did not have the same night off, and, on the seventh night, the one of those working transported decedent for 15 cents.
The arrangement was made in advance of the transportation. It was for a definite sum Qf money. Hayes testified that the payment by decedent was a method of contributing to the cost of the gasoline consumed, and was a matter of courtesy. But he also testified that there was no arrangement with decedent that the money was to be used for gasoline, and that the agreement for transportation was for a specific sum without regard to its use. If the payment was not by way of voluntary or spontaneous courtesy of a guest or co-operative contribution to the expense of the trip, the fact that the driver, made the expense the basis of his computation of the charge would not prevent the carriage being for hire. Under the testimony, whether decedent was a passenger for hire was a question for the jury. Johnson v. Mack, 263 Mich. 10. If decedent was a passenger for hire, negligence of the driver was not imputable to him. Lachow v. Kimmich, 263 Mich. 1 (32 N. C. C. A. 579).
In view of the necessity for new trial, we express no opinion upon whether defendant was guilty of negligence as a matter of law.
Judgment reversed, with new trial, with costs to plaintiff.
McDonald, C. el., and Clark, Potter, Sharpe, North, Wiest, and Btjtzel, JJ., concurred. | [
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Clark, J.
Brinks Express Company filed with commissioners on claims in probate court claim arising in tort against the estate of James Warren Oldman, deceased, for damages to an automobile, which was in collision with automobile of deceased in which accident he was killed. The claim was disallowed. Claimant appealed to circuit court, where, on motion of the administrator and over claimant’s objection, the administrator was permitted to file a cross-declaration which contained two counts, one on the survival act (3 Comp. Laws 1929, § 14040), the other on the death act (3 Comp. Laws 1929, §§14061, 14062). The verdict was no cause of action as to both parties. Prom judgment on the verdict, claimant has appealed.
It was proper to present the claim arising in tort to commissioners on claims. Ford v. Maney’s Estate, 251 Mich. 461 (70 A. L. R. 1315).
It is recognized that the circuit court in hearing this matter appealed from commissioners on claims exercised appellate jurisdiction (Goodrich v. Hubbard’s Estate, 233 Mich. 346), and that, “The case made before the commissioners can never be enlarged or changed on appeal, ’ ’ quoting from Patrick v. Howard, 47 Mich. 40.
This rule was not violated by the filing of the cross-declaration, expressly authorized by 3 Comp. Laws 1929, § 14142, for the statute provides that the “plaintiff shall proceed as though an independent action had been started against him.”
The cross-action being regarded as independent, it cannot be treated as having changed or affected plaintiff’s claim before the court on appeal.
Deceased was killed instantly, and proofs of cross-plaintiff were under the death act (3 Comp. Laws 1929, §§ 14061,14062), which gives a special remedy to those who suffer loss by the death (Ford v. Maney’s Estate, supra), and the proceeds of which are not strictly assets of the estate. Thomas v. Morton Salt Co., 253 Mich. 613, except as regards 3 Comp. Laws 1929, § 15585; Findlay v. Railway Co., 106 Mich. 700. And the statute requires the action to be brought by the personal representatives of the deceased and it provides also for distribution of any amount recovered. No question is raised under or upon 3 Comp. Laws 1929, § 15682, it being regarded apparently as not here applicable.
It follows that permitting cross-declaration was not error. There is evidence of negligence against both drivers of the automobiles in collision. The whole matter of negligence was for the jury and the assignments argued in that regard present no reversible error.
Affirmed.
Potter, North, and Butzel, JJ., concurred with Clark, J.
Wiest, J. I cannot concur in the opinion prepared by Mr. Justice Clark.
In the case at bar the circuit court could not permit an issue to be framed and tried upon a subject not within the jurisdiction of the probate court, for the circuit court had appellate jurisdiction only. The estate could not prosecute an action in the probate court against claimant for damages for the negligent killing of Mr. Oldman.
Probate matters must originate in probate court, and, when issues therein are sent to another court, either by appeal or certificate, the latter court exercises appellate, not original, jurisdiction. In re Reid’s Estate, 248 Mich. 360.
Under the practice sanctioned by my brother’s opinion, the court would exercise appellate jurisdiction under the claim against the estate, and original jurisdiction on the claim made by the estate against claimant. This cannot be done.
I do not agree that the statute, 3 Comp. Laws 1929, § 14142, authorizes any such procedure. That statute provides:
“In any action hereafter brought in any court of the State to recover damages for any injury to person or property, wherein recovery is sought because of the alleged negligence of the defendant, or of his agent, servant, representative, or employee, or for the alleged breach of a statutory duty owing thereby, such defendant may at the time of filing and serving his plea, also file and serve a cross-declaration against the plaintiff setting forth the facts in any cause of action for damages or injury to his person or property because of the alleged negligence of the plaintiff or his agent, servant, representative, or employee, he may have against said plaintiff arising out of the occurrence, forming the basis of plaintiff’s case. Thereupon such plaintiff shall proceed as though an independent action had been started against him by defendant and shall plead to such cross-declaration or take such other step with reference thereto as may be authorized by statute or by rule of court: Provided, That with the permission of the court such cross-declaration may be filed and served subsequently to the filing and service of defendant’s plea.”
This clearly relates to actions at law commenced in the circuit court, for it involves common-law pleadings, issues, and trial under original jurisdiction. Surely this statute can have no application to proceedings in the probate court, and, upon appeal, it cannot be made any more applicable.
In matters originating in the probate court the appellate court does not hear the case de novo, but is restricted to issues presented by reasons assigned for the appeal. In re Murray’s Estate, 219 Mich. 70; In re Beers, 148 Mich. 300; In re Ward’s Estate, 152 Mich. 218; In re Broffee’s Estate, 206 Mich. 107.
Upon cause shown, reasons assigned for the appeal may be amended. 3 Comp. Laws 1929, § 15964. This relates to matters of form and not of substance. In re Reid’s Estate, supra. Upon appeal, claimant cannot amend so as to present matters which the commissioners did not pass on. In re DeHaan’s Estate, 169 Mich. 146.
The circuit court had no original jurisdiction in the case at bar, and no new claim by either party could be considered there.
If the cross-declaration be considered an independent action, then it has no place in an issue based on circumscribed appellate jurisdiction.
If the circuit court had original jurisdiction in the premises, then the statute would permit a cross-declaration, but neither party has, nor could, invoke such jurisdiction. If the representative of the estate desired to press the claim under the death act (3 Comp. Laws 1929, §§ 14061, 14062) for damages against claimant, the way was open to do so by action commenced in the circuit court.
Plaintiff’s right to press its claim against the estate was not under the death act, cited by my brother, but the cross-claim by the administrator was under that act. If plaintiff has recovery, the corpus of the estate responds. If the administrator has recovery against claimant, such is not in behalf of the estate, but for distribution to persons suffering pecuniary injury resulting from such death. 3, Comp. Laws 1929, § 14062. The administrator has no claim of .the deceased against claimant, but asserts a claim in behalf of persons suffering pecuniary injury by the death of Mr. Oldman. Such a claim could not be employed as an offset in the probate court under 3 Comp. Laws 1929, § 15682, neither may it be employed in the appellate court by way of cross-declaration.
I think the judgment should be reversed, with costs, and the case remanded for trial of the appeal from the probate court.
McDonald, C. J., and Sharpe and Fead, JJ., concurred with Wiest, J. | [
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Butzel, J.
In a bill filed against the executors and residuary legatee of the estate of Dr. James D. Munson, plaintiffs Gordon' and Pauline Burnham seek specific performance of an oral agreement alleged to have been made with decedent in bis lifetime. Plaintiffs bad previously entered into a written executory contract to purchase a valuable farm in Grand Traverse county from Dr. Munson and his wife, to whom they were related. Subsequently, Dr. Munson’s wife died, and it is claimed that the doctor, now aged, childless, and lonesome, became much attached to plaintiffs and induced them to give him practically all of their time and attention; that he entered into the oral agreement sought to be enforced in the instant case; that subsequently the doctor met with a very severe accident that crippled him permanently, and that plaintiff Gordon Burn-ham thereupon resigned from a position he held in order to aid his wife more fully in the care of the decedent. Plaintiffs claim that the doctor agreed that, in consideration of their looking after him and his interests during the balance of his lifetime, the title to the farm which was being sold to them on contract would become vested in them at the doctor’s death, free and clear of all further contractual obligations. The bill of complaint also alleges, although there is no proof in substantiation thereof, that the doctor further agreed to make proper testamentary provision to this effect. Plaintiffs claim that they fully performed their contract. The doctor did not change his will. The testament eventually probated and executed some time before the alleged oral agreement provided for a specific legacy of $2,500 to Gordon Burnham.
The testimony taken at the hearing was somewhat conflicting and the proofs are rather meagre, possibly owing to the statutory provision prohibiting plaintiffs’ testimony with regard to matters equally within the knowledge of deceased (3 Comp. Laws 1929, §14219). However, the positive testimony of Frank F. Burnham, a brother of Gordon, as to the details of a conversation with Dr. Munson, in which the latter described the agreement claimed in the presence of the plaintiffs, stands undisputed. The record also contains statements made by decedent of an intention on his part to let plaintiffs have the property. In view of this testimony, and the fact that the trial judge saw the witnesses and was convinced by them, we' are constrained to affirm the decree in favor of plaintiffs.
Questions of law raised by defendants have been ruled on so frequently by this court that we need not again discuss them. We refer counsel to Woodworth v. Porter, 224 Mich. 470; Sage v. Sage, 230 Mich. 477; Denevan v. Belter, 232 Mich. 664; Willard v. Shekell, 236 Mich. 197, 203.
The decree is affirmed, with costs to plaintiffs.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Clark, J., took no part in this decision. | [
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McDonald, C. J.
This suit was brought by the plaintiff as beneficiary in an insurance policy issued July 29, 1918, by the defendant on the life of her son, William Wiley. On September 20, 1924, the insured disappeared from his mother’s home in the city of Jackson, Michigan, and has not since been seen or heard from. The theory of the suit is that he is presumed to be dead by reason of his unexplained absence for a period of seven years. On the trial at the close of the proof, the defendant moved for a directed verdict on the ground that, as a matter of law, its proofs overcame the presumption of death. The court reserved decision and later denied a motion to enter judgment in favor of the defendant notwithstanding the verdict. Judgment for the plaintiff was entered in the sum of $525. The defendant has appealed.
1. The first ground urged for reversal is that the court erred in refusing defendant’s motion to direct a verdict or to enter a judgment notwithstanding the verdict.
Our statute providing that a presumption of death shall arise after seven years ’ absence reads :
“If any person shall disappear and his whereabouts remain unknown for the space of seven years and no knowledge of such person can be procured in such space of seven years, he shall be presumed to be dead.” 3 Comp. Laws 1929, § 13467.
To make a case under this statute, the plaintiff must show that the insured disappeared from his residence; that his whereabouts remained unknown for the statutory period, and, notwithstanding diligent search during that time, no knowledge of him has been procured. In this case the plaintiff made such a showing and the defendant then went forward with its proofs in rebuttal of the presumption. It was shown that the insured was a resident of Jackson and was employed at the State police post in that city; that at the time of his disappearance he was on probation from the municipal court of Kalamazoo following conviction for failure to support his wife; that a condition of the probation required him to pay her $10 a week; that he defaulted on his payments, was arrested but released on promise to comply with the conditions of the probation; that he again defaulted; that a warrant was issued for his arrest; that he heard about it and immediately disappeared. It is the contention of the defendant that these facts which are undisputed negative the presumption of death and that the court should have so held as a matter of law. It is true that they furnish a motive for the disappearance of the insured. They establish beyond question that he left his employment and his home and concealed his whereabouts in order' to avoid arrest and possible punishment for violating the conditions of his probation. But as a reason for remaining away in concealment for seven years, such proofs are not conclusive. They did not furnish the only evidence which the court and jury had a right to consider in determining whether the insured was dead or alive. The plaintiff introduced evidence tending to show that if the insured were alive he probably would not have concealed his whereabouts from her for so long a period. She showed that he was married in 1920 and lived with his wife only three months; that following their separation he re turned to Ms mother’s home where he was living happily with her and his sisters at the time he disappeared; that the severest penalty that could he imposed on him for violating the conditions of his probation was confinement in the county jail for three months; that she and her family made diligent search for him, broadcasted, advertised in the newspapers, visited morgues, solicited the aid of Federal and State law enforcement agencies as well as the defendant insurance company, but could find no trace of him. The facts shown by the plaintiff indicate that a normal man, such as the insured, would be unlikely to remain away for so long a period without communicating with his mother or sisters.
The defendant says that there must be some point where the undisputed facts in rebuttal negative the presumption of death as a matter of law. We can conceive of such a situation, but we know of no case where the courts have decided the question as a matter of law. Probably the reason is that these cases are necessarily decided by logical inference from human experiences and the jury can do that as well as the judge. In view of all the facts and circumstances shown in the present case, we think that the trial court did not err in refusing to hold as a matter of law that defendant’s evidence overcame the presumption of death.
2. It was in evidence that within two months after the insured disappeared the authorities at Kalamazoo withdrew the warrant and dropped the proceedings against him. The defendant submitted a request to charge, in substance, that, as the insured had no knowledge of his discharge, it would not affect his belief that he was a fugitive from justice. The failure of the court to give this request is as signed as error. The court might properly have given it, hut we cannot see ho^ his failure to do so influenced the verdict. It must have been self-evident to the jury that the insured would not be relieved of his fear of arrest by facts of which he had no knowledge.. Error in refusal to submit the request was not prejudicial.
3. Complaint is made of error in admission of evidence. We find none that merits discussion.
The judgment is affirmed, with costs to the plaintiff.
Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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] |
Potter, J.
This is an action for damages against defendant brought by Albert Breger as administrator of the estate of Leonard Breger, 15 years of age, for his death, which occurred June 19, 1930. On June 19, 1930, Frank Abraam, an employee of defendant, was driving an empty Packard stake truck to the railroad tracks, at Theodore and DeQuindre streets, in Detroit, where he was to unload ginger ale from a freight car. He had with him another co-employee and also took on a boy at the corner of Orleans street. When he arrived at Forest and St. Aubin avenues, he saw decedent, Leonard Breger, in the rear of the truck. He had ridden on the truck and helped carry cases of pop and empties, and watched the truck, before that time. At Hancock avenue defendant’s agent, Abraam, says he looked back and did not see decedent. The truck made a left-hand turn into Theodore street and stopped. Decedent was found lying next the truck, injured, from the effects of which injuries he later died. There was conflicting testimony as to the rate of speed at which the truck made the turn. It was variously estimated at from 10 to 30 miles an hour. Decedent was standing with his feet between the slats attached to stakes of the sides of body of the truck, and as the truck swung around, he was thrown to the ground and injured.' Defendant introduced testimony to show that Abraam, the driver of the truck, had no authority to employ decedent, or to permit riders on the truck, and had specific instructions to that effect. Defendant made a motion for a directed verdict at the close of plaintiff’s case, and at the close of all the proofs. These motions were denied, the case submitted to the jury, and a verdict for plaintiff rendered for $1,000. The court reserved its decision on the question of decedent’s contributory negligence under the Empson act (3 Comp. Laws 1929, § 14531 et seq.). Subsequently a motion for judgment, notwithstanding- the verdict, was made by defendant, denied by the court, and judgment entered on the verdict. Defendant appeals, contending plaintiff’s decedent was guilty of contributory negligence; defendant’s truck driver had no right to employ or permit plaintiff’s decedent to ride thereon; plaintiff’s decedent was either a guest or a trespasser on the truck, and in either case gross, wilful, and wanton negligence would have to be proven.
There is no doubt defendant Prank Abraam was operating the truck in defendant’s business, and not in his own private business; and it is no defense that the driver of defendant’s truck, Abraam, was acting in disobedience of defendant’s instructions. Loux v. Harris, 226 Mich. 315. If defendant’s driver, Abraam, committed a tort in the course of his employment, defendant may be liable even though ignorant thereof, and Abraam, in committing it, exceeded his authority and disobeyed the express instructions of defendant. Loux v. Harris, supra; Eterna v. Dodge, 239 Mich. 421; Riley v. Roach, 168 Mich. 294 (37 L. R. A. [N. S.] 834); 2 C. J. p. 848. There was testimony from which the jury could draw a legitimate inference that though defendant’s agent, Abraam, disobeyed the positive and express general instructions of defendant, he was following a course of conduct sanctioned by it in the conduct of its business. This was sufficient to carry the case to the jury upon this question. Decedent, prior to the injury, was standing on the movable sidegate of defendant’s truck, and was thrown and injured. He was a boy 15 years of age, and the jury had a right to consider his age, experience, and intelligence in determining whether he was guilty of contributory negligence. Easton v. Medema, 246 Mich. 130; Thornton v. Ionia Free Fair Ass’n, 229 Mich. 1; Black v. Parke, Davis & Co., 211 Mich. 274. There was proof which tended to show defendant’s agent knew plaintiff’s decedent was riding on the truck, and that the driver of the truck went around the corner and upon the railroad tracks at a rate of speed higher than that permitted by law, and, as a result thereof, plaintiff’s decedent was thrown to the ground and injured. Plaintiff’s decedent was not bound to anticipate defendant’s driver would drive the truck around the corner at an unlawful rate of speed. Black v. Parke, Davis & Co., supra. The question of decedent’s contributory negligence was for the jury. The court did not err, under the testimony, in not directing a verdict for defendant' on the ground defendant’s agent had no authority to employ plaintiff’s decedent. There was testimony from which the jury could legitimately infer plaintiff’s decedent was neither a guest nor a trespasser.
Judgment affirmed, with costs to appellee.
Sharpe, North, Fead, and Butzel, JJ., concurred with Potter, J. McDonald, C. J., and Clark and "Wiest, JJ., concurred in the result. | [
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Sharpe, J.
The question here presented is whether a duly appointed deputy sheriff in the county of Wayne, who is a veteran of the World War, is entitled, under what is known as the veterans’ preference act (Act No. 67, Pub. Acts 1931 [amending 1 Comp. Laws 1929, § 901]), to hold the office after the term of the sheriff who appointed him has expired. The trial court held that he was not, and from the order denying a writ of mandamus to reinstate him in such office the plaintiff has taken this appeal.
Section 2 of said Act No. 67 provides that no veteran—
“holding an office or employment in any public department or public works of the State or any county, * * * shall be removed or suspended * * * except for official misconduct, habitual, serious, or wilful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency, ’ ’—
and that such removal, transfer, or suspension shall not be had except after a hearing provided for therein.'
Our State Constitution provides for the election biennially of a sheriff in each organized county, and that.“the county shall never be responsible for his acts.” Article 8, §§ 3, 5. 1 Comp. Laws 1929, § 1323, provides that “the sheriff of each organized county shall be elected at the general election, for the term of two years.” Section 1325 authorizes him to appoint one or more deputies, “for whose official acts he shall be in all respects responsible.”
“The veterans’ preference act was passed for a commendable purpose” (Smith v. Flint City Commission, 258 Mich. 698, 700), and should be liberally construed.
“Appointees and employees coming within the provisions of this statute have a right to remain in office or public employment until removed in the course prescribed by law.” Wiest, J., in Koeper v. Detroit Street Railway Commission, 222 Mich. 464, 483.
If we concede, as urged by plaintiff’s counsel, that the office of sheriff is a “public department” of the county (Ellis v. Common Council of Grand Rapids, 123 Mich. 567), and that a deputy sheriff could not be removed or suspended without cause by the. sheriff during his term of office, it does not follow that the appointment does not terminate on the expiration of the term to which the sheriff has been elected.
In Bostatter v. Hinchman, 243 Mich. 589, it was said that a deputy sheriff acts in the place and stead of the sheriff. “He is a public officer only because of his appointment by the sheriff” (p. 593).
In Lamoreaux v. Attorney General, 89 Mich. 146, 149, it was said:
“Bishop’s authority to hold the office of sheriff expired at midnight of December 31, 1890, by constitutional limitation, and all his deputies and the undersheriff went out of office with him.”
This holding was cited with approval in Smith v. Wagner, 234 Mich. 428, 429.
A sheriff gives bond for the faithful performance of the duties of his undersheriff and deputies. Liability upon this bond would certainly terminate at the expiration of his term of office except as to a default committed prior thereto. The bond to be given by the newly-elected sheriff could not be held to protect against the default of a deputy whom he had not appointed.
In our opinion, plaintiff’s term of office expired on December 31, 1932, with that of the sheriff who appointed him, and the order denying the writ of mandamus to reinstate him is affirmed. As a public question is involved, no costs will be allowed.
McDonald, C. J., and Clark, Potter, North, Pead, Wiest and Butzel, JJ., concurred. | [
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Wiest, J.
Plaintiff is an attorney at law and ivas employed by defendants to prosecute an action at law in their behalf against Thomas Nolan, and was to receive for her services a fee contingent upon recovery and the amount thereof. A judgment was obtained in the circuit court for the sum of $3,000, and appealed by Nolan to this court. While the appeal was pending here defendants became dissatisfied with plaintiff’s management of the case and applied to this court for substitution of attorneys. We allowed substitution upon payment of $150 to plaintiff. Payment was made and substitu tion had. Plaintiff brought this suit to recover under her contract of employment, as well as upon the common counts in assumpsit. Defendants moved to dismiss the suit on the ground that plaintiff’s right to compensation, -under the contract of employment, ended with this court’s order of substitution of other attorneys in her place and stead. The circuit judge dismissed the suit, and plaintiff prosecutes this appeal, claiming that former adjudication is only a plea in bar and cannot be made the basis of a motion to dismiss.
Court Rule No. 18 (1931) provides:
“Defendant may, within the time for pleading, file a motion to dismiss the action or suit, where any of the following defects appear on the face of the declaration or bill of complaint, and he may, within the same time, file a similar motion supported by affidavits where any of the said following defects do not appear upon the face of the declaration or bill of complaint: * * *
“ (e) That the cause of action is barred by a-prior judgment.”
The order of the court ordering substitution and fixing plaintiff’s compensation was so far in the nature of a judgment as to fall within the mentioned provision of the rule.
If plaintiff’s demand is based upon the contract of employment, then she has no right of recovery, for the substitution ended her 'employment and the sum awarded her constituted compensation. No other demand is asserted.
The judgment in the circuit court is affirmed, with costs against plaintiff.
McDonald, C. J., and Potter, Sharpe, North, Pead, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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] |
Wiest, J.
The United States Construction Company, Inc., installed a sprinkler system in the Grand Hotel on Mackinac Island, under a conditional sales contract, termed a lease, and under which the lessees or vendees were to pay $13,000 annually for seven years, and make an eighth payment of $10,000, and thereafter own the equipment upon payment of an additional $3,000. In case of default by the vendees the vendor retained the right to retake the sprinkler system without releasing the vendees from making the annual payments. The contract provided:
“The liability of the' lessees hereunder shall not cease because of any default by the lessees hereunder of (or) the exercise by the lessor of any of its rights as a consequence of such default, including the removal of the system from the premises, or because of any damage to the system or premises not caused by the fault of the lessor.”
The contract also provided that:
“The system and all materials shall remain the property of the lessor, and the lessor may at any time enter any and all parts of said premises to inspect and examine said system, and the lessor has the right to turn off the water in case of any default continued for 10 days after written notice of such default given by the lessor to the lessees, and/or remove the system, whether or not affixed to the realty in case of any continued default for 60 days after said written notice of such default given by the lessor to the lessees.”
The Mackinac Island Hotel Company, owner of the hotel, went into the hands of a receiver, and the construction company demanded possession of the sprinkler system under the terms of the contract, and, upon refusal of delivery by the receiver, the construction company petitioned the circuit court for direction to the receiver to permit such retaking.
The circuit judge found the contract or lease a conditional sale in the nature of a chattel mortgage, and, not having been recorded, was void as to subsequent creditors of the hotel company.
Upon appeal, the question is whether the contract was a pure conditional sale or one in the nature of a chattel mortgage.
In Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15, we pointed out the distinction between a pure conditional sale contract and one in the nature of a chattel mortgage. If, under the contract, a vendor may retake the property and also hold the vendee to pay for the same, then it is a conditional sale in the nature of a chattel mortgage, and must be recorded in the proper office in order to foreclose subsequent creditors.
The full purchase price, in order to pass title, was fixed at $104,000, and, under the contract, $101,000 of this was to be paid even if the sprinkler system was reclaimed by the vendor. The obligation to pay remained although the security was captured.
Petitioner cites In re Petition of Hume, 260 Mich. 555, and directs our attention to a statement there made that:
“Until it (the contract)'was performed title could not and did not pass to defendant; and if defendant did not have title, it could, not give a chattel mortgage.”
This but stated an abstract principle of law, applicable, however, to the facts in that case, but not at all contrary to onr many other holdings that, where the contract retains title in the vendor and stipulates right to repossess the chattel sold and still hold the vendee to make full payment, the right to take, fastened to the chattel, is intended as security for the obligation of the vendee to make payment in full, and, in the eye of the law, is security, so far in the nature of a chattel mortgage as to require recording in the proper office and thus provide notice to subsequent creditors of the vendee. In the Hume Case the contract did not permit the vendor to retake the property and still hold the vendee to pay the contract price.
The order in the circuit court is affirmed, with costs to appellees.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Sharpe, J.
The plaintiffs are residents and taxpayers of the county of Oakland. The defendants are the governor, the secretary of State, and the State.highway commissioner,, of the State of Michigan, and the Grand Trunk Western Railway Company.
Act No. 340, Pub. Acts 1927 (1 Comp. Laws 1929, § 4454 et seq.), authorized the governor and the State highway commissioner to enter into a contract with the Detroit, Grand Haven & Milwaukee Railway Company, now the Grand Trunk Western Railway Company, wherein, in consideration of the surrender by said railway company of the special charter granted to it by the territorial council of the Territory of Michigan on March 7, 1834, and certain undertaking's on its part, the State of Michigan agreed to secure for it a new right of way nine and one-tenth miles in length in the county of Oakland; to take conveyances therefor in the name of the State, and, on full performance by the railway company, including payment therefor as therein provided, to convey the same to it. The form of the contract which was to he entered into is set forth in full in the act. The purpose of the legislature in enacting this law and the object to he attained thereby are referred to at some length in Fitzsimons & Galvin, Inc., v. Rogers, 243 Mich. 649, wherein the constitutionality of the law was assailed but upheld.
The bill of complaint alleges that the contract was entered into and that the State highway commissioner proceeded to secure the title in the State to the lands in such right of way by purchase and condemnation, and that transfer to the railway company is now contemplated.
The material allegations on which relief is sought are summarized by plaintiffs’ counsel in their brief as follows:
“1. That lands in excess of those necessary for the project covered by said Act No. 340 have been purchased by the State highway commissioner without authority, and that said purchases are illegal and a fraud upon the plaintiffs and other taxpayers of the State of Michigan.
“2. That the purchase of unnecessary lands with State money, to be turned over to the railroad company for its private use is in violation of the provisions of article 10, § 12, of the State Constitution.
“3. That if the purchase of said lands was legal in the first instance, the conveyance of said lands as a part of the contract obligation, or for any other reason, would he illegal, being in contravention of article 10, §12, of the State Constitution.”
An injunction restraining the execution and delivery of a conveyance or conveyances of the properties so purchased to the railway company was prayed for. The defendants filed answers to the bill, and with, that of the State officers was a motion to dismiss for several reasons, among them being:
“1. That there is no equity in the bill of complaint.
“2. That this is in fact a suit against the State of Michigan contrary to its sovereignty and without its consent.”
The motion came on for hearing before circuit judges Lamb, Covert, and Gillespie. The two former united in an opinion dismissing the bill for want of equity and because it was in fact a suit against the State. Judge Gillespie was of the opinion that the bill stated a cause of action and was not subject to the other objection referred to. From an order dismissing the bill, the plaintiffs have taken this appeal.
The sixth paragraph of the contract reads as follows:
“The deed or deeds of conveyance from the persons owning the lands to be acquired by the State for the new right of way of said railway company, shall be taken in the name of the State of Michigan, and when the State shall have acquired the title to all of said right of way and said railway company shall have completed the work to be by it done under this contract, the same shall be conveyed by the State to said railway company, and the governor of the State of Michigan is hereby authorized and empowered to make, execute, and deliver said deed or deeds of conveyance on behalf of the State, the same to be attested by the secretary of State of the State of Michigan, and acknowledged by them and each of them under the great seal of the State.”
Plaintiffs here seek to enjoin the governor from the performance- of the duty imposed on him under this paragraph. While the duty thus imposed on him may be said to be ministerial only, and not political, it calls for the exercise of judgment on his part, and is not subject to judicial control.
It seems to be well established in this State that the courts have no jurisdiction to review any action performed by a governor under the power conferred upon him either by the Constitution or legislative enactment. Mandamus will not lie to compel action on his part, nor will an injunction be issued to restrain such action.
In the early case of People, ex rel. Sutherland, v. Governor, 29 Mich. 320 (18 Am. Rep. 89), a somewhat similar question was presented to this court. In that case the relators applied—
“for an order requiring' the governor to show cause why he does not issue his certificate showing that the Portage Lake and Lake Superior ship canal and harbor have been constructed in conformity with the acts of congress making a land grant for the same, and the acts of the legislature of this State conferring the grant upon a corporation.”
It was conceded on behalf of the governor that the work had been done and that the question was purely a judicial one “involving nothing but a proper construction of the law. ” In a lengthy and well-considered opinion, written by Mr. Justice Cooley and concurred in by Justices Campbell and Christian oy, it was held (syllabus):
“As to all authority specially confided to, the governor, whether by the Constitution or by statute, it will be presumed that reasons of a conclusive nature required it to be so confided as an authority properly and peculiarly, if not exclusively, pertaining to the executive department, and therefore not subject to coercion by judicial process,”
In the opinion it was said:
“Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the Constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties” (pp. 324, 325).
The contention that this rule should not apply when the duty is a purely ministerial one, which the legislature might have assigned to another State officer, is discussed at some length.
“But when duties are imposed upon the governor, whatever be their grade, importance, or nature, we doubt the right of the courts to say that this or that duty might properly have been imposed upon a secretary of State, or a sheriff of a county, or other inferior officer, and that inasmuch as in case it had been so imposed, there would have been a judicial remedy for neglect to perform it, therefore there must be the like remedy when the governor himself is guilty of a similar neglect. The apportionment of power, authority, and duty to the governor, is either made by the people in the Constitution, or by the legislature in making laws under it; and the courts, when the apportionment has been made, would be presumptuous if they should assume to declare that a particular duty assigned to the gov ernor is not essentially executive, but is of such inferior grade and importance as properly to pertain to some inferior office, and consequently, for the purposes of their jurisdiction, the courts may treat it precisely as if an inferior officer had been required to perform it. To do this would be not only to question the wisdom of the Constitution or the law, but also to assert a right to make the governor the passive instrument of the judiciary in executing its mandates within the sphere of his own duties. Were the courts to go so far, they would break away from those checks and balances of government which were meant to be checks of co-operation, and not of antagonism or mastery, and would concentrate in their own hands something at least of the power which the people, either directly or by the action of their representatives, decided to intrust to the other departments of the government” (pp. 328, 329).
This decision has been cited with approval in People, ex rel. Ambler, v. Auditor General, 38 Mich. 746; People, ex rel. Ayres, v. State Auditors, 42 Mich. 422; Shipman v. State Live-Stock Sanitary Commission, 115. Mich. 488, and Germaine v. Governor, 176 Mich. 585 (46 L. R. A. [N. S.] 857, Ann. Cas. 1915 B, 418). In the Ayres Case it was said:
“It has also been held that we cannot interfere with the discretion of the ..chief executive of the State or subordinate him to our process.”
In the Shipman Case:
“If the governor should refuse to approve the award of the’ commission, courts could not interfere to compel him to approve the finding.”
The Germaine Case contains a lengthy quotation from the opinion. The second syllabus reads as follows:
“It is not important in Michigan whether the act of the executive is ministerial or judicial in its nature; the judicial department is not authorized to interfere with the determination of a co-ordinate branch of the government, although the courts may exercise jurisdiction to pass upon the validity of the proceedings in a cause arising between private parties claiming rights thereunder.”
The holding in the Sutherland Case is, in our opinion, in accord with the great weight of authority. Some of the State courts hold that the rule as stated is not applicable in cases where the governor is called upon to perform a ministerial duty only.
In Rice v. Governor, 207 Mass. 577 (93 N. E. 821, 32 L. R. A. [N. S.] 355), the court, after referring to and quoting from the opinion of Mr. Justice Cooley, said:
“It seems better to hold that, for whatever he does officially, the governor shall answer only to his own conscience, to the people who elected him, and in case of the possible commission of a high crime or misdemeanor, to a court of impeachment. ’ ’
The relationship which exists between this court and the governor of this State is quite similar to that existing between .the supreme court of the United States and the president thereof. In Mississippi v. Johnson, 4 Wall. (71 U. S.) 475, the State sought by injunction to restrain President Johnson from the execution of the reconstruction acts of congress upon the allegation that they were unconstitutional. Chief Justice Chase, speaking for the court, said:
“The congress is the legislative department of government; the president is the executive department. Neither can be restrained in its action by the judicial department; though the acts of■ both, when performed, are, in proper cases, subject tó its cognizance.
“The impropriety of such interference will be clearly seen upon consideration of its possible consequences.
“Suppose the bill filed and the injunction prayed for allowed. If the president refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the president complies with the order of the court and refuses to execute the acts of congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the house of representatives impeach the president for such refusal? And in that case could this court interfere, in behalf of the president, thus endangered by compliance with its mandate, and restrain by injunction the senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?
“These questions answer themselves.”
The decisions of the several State courts are reviewed at length and commented on in articles in 3 Mich. Law Rev. 631, and in 10 Mich. Law Rev. 458. In the latter, at page 473, it is said:
‘ ‘ There appears to be no case where an injunction has been issued against a State governor. In a few cases there are judicial opinions that the governor may be enjoined in connection with purely ministerial duties; but in other cases the courts have declined to enjoin the governor, and this rule would probably be followed at least in the States where a mandamus will not be issued.”
It seems clear that the bill presents no case for equitable relief. The order dismissing it is affirmed. 'As a question of grave public importance is involved, no costs will be allowed.
McDonald, C. J., and North, Fead, and Butzel, JJ., concurred with Sharpe, J. Wiest, J., concurred in the result. Potter, J., did not sit. Clark, J., took no part in tbis decision. | [
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North, J.
An application for discontinuance of a public highway reached, by appeal, the circuit court of Livingston county. On motion to dismiss it was there held that the provisions of the statute (Act No. 283, Pub. Acts 1909; 1 Comp. Laws 1915, § 4287 et seq.; as to subsequent modification of title, see 1 Comp. Laws 1929, § 3916) relating to the discontinuance of highways are unconstitutional because such provisions are not within the title of the act as passed by the legislature, and in this regard are in violation of article 5, § 21, Michigan Constitution. As against this same objection we have heretofore held that the title of the act is sufficient and the assailed provisions valid. Houston v. Jewett, 248 Mich. 587. It should be noted that decision of this case in the circuit court was rendered prior to our decision in the Houston Case.
The order dismissing the appeal is set aside, and the case remanded to the circuit court for further proceedings therein. Costs to appellants.
McDonald, C. J., and Weadock, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, C. J.
This is an appeal by the defendants from a decree in a suit brought in aid of execu tion. On May 25,1931, the plaintiff caused an execution to be levied upon certain real estate known as the “Keech Street Property” formerly belonging to Oscar E. Luenser and Hazel M. Luenser, his wife, but which prior to the levy they had conveyed by deed to Mrs. Luenser’s parents, Gustave R. Hinz and Barbara Hinz. The bill charges that the deed was given in fraud of creditors, and the purpose is to have it set aside so that the levy may be perfected and the property applied in satisfaction of the judgment. The trial court held the conveyance good as a mortgage, and decreed title in the. premises to be in Oscar E. Luenser and Hazel M. Luenser, subject to a mortgage lien of the defendants, Gustave R. Hinz and Barbara Hinz, in the sum of $2,220. From this decree the defendants have appealed.
The established facts show beyond question that the conveyance, though in form an absolute deed, was given to secure the payment of a debt which Oscar Luenser owed Mr. Hinz, his father-in-law, and for money which Mr. Hinz agreed to advance to complete the construction of a building which the Luensers were intending to occupy as a residence. We do not deem it necessary to extend this opinion by a profitless discussion of evidence which so plainly supports the finding of the trial court that the conveyance was a mortgage. Nor is it necessary to discuss the plaintiff’s claim that the conveyance was in fraud of creditors.- The consideration was actual and adequate. It was a good and valid mortgage untainted by any fraudulent intent to hinder or delay creditors.
The amoiint of the mortgage is in disputes The defendants ' claim upwards of $7,400. The-court found the actual amount to be $2,220, and the plaintiff is satisfied with that finding. In reaching his conclusion the court disallowed items amounting to $1,153 admittedly loaned to complete the house. These items were disallowed on the theory that the mortgage did not secure any money expended after its execution. In this the court erred. One of the purposes of the deed was to secure future advances necessary to complete the building. The defendants Oscar Luenser and wife claim to have kept a paper on which they entered the various amounts loaned to them by Mr. Hinz prior to the execution of the deed. We share the trial court’s suspicion that the account was not in all respects genuine, and we think he rightfully disallowed many of the items appearing thereon except one of $550 which had supporting evidence. The record shows that Mr. Hinz was very liberal with his son-in-law. This appears from the fact that he allowed him to use his check book in making payments for finishing the building. He kept no account of the money which he loaned from time to time and for the improvements which he claims to have made after the house was completed. As to these matters, his testimony is too speculative to amount to proof. The account kept by the Luensers is not convincing as to the correctness of the items, and, where not supported by other evidence, was properly disallowed. We accept the trial court’s finding on items represented by the $2,220, but to that should be added items of $1,153 and $550 which were wrongfully disallowed. With these allowances the .amount of the Hinz mortgage lien is $3,923, on which he is entitled to interest of five per cent, from the date of the mortgage. The plaintiff is entitled to perfect its levy by a sale of Luensers’ interest in the property. As thus modified the decree of the trial court is affirmed.
Clark, Potter, Sharpe, North, Fead, Wiest, and Btttzel, JJ., concurred. | [
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] |
Wiest, J.
October 28, 1927, plaintiff, while in the employ of defendant Armour & Company, received a compensable injury, and, by agreement, he was to be paid $18 per week during total disability. He was paid $579', and, June 9, 1928, resumed his employment and was paid his previous wage of $30, per week until September 21, 1929, when he voluntarily quit. June 27, 1928, plaintiff executed a final settlement receipt which was filed with the department but no approval thereof sought or had at that time. In November, 1931, plaintiff filed with the department of labor and industry a petition for further compensation, and, upon hearing before a deputy commissioner, it was, on January 4, 1932, determined and adjudged that he was not entitled to further compensation. No appeal was taken.
In February, 1932, plaintiff procured from the secretary of the department copies of thfe record, inclusive of the holding: “There is no compensation due to the plaintiff on the'date hereof.”
March 12, 1932, plaintiff took judgment in the circuit „ court on the agreement for compensation, for the sum of $3,381, making no deduction for the sum paid him for work and labor from June 9,1928, to September 1, 1929. Upon learning of the judgment defendants moved to set it aside, and, on July 1, 1932, the court set the judgment aside. Plaintiff reviews by appeal.
The facts as stated commanded vacation of the judgment. See Oliver Iron Mining Co. v. Pneff, 262 Mich. 116.
Affirmed, with costs to defendants.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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] |
Wiest, J.
Our independent judgment upon review of this case coincides with the following opinion of the circuit judge:
“In the early part of 1926, one of said defendants, Arthur G. Wood, became interested in the purchase of certain farm lands located in Green Oak township, Livingston county, securing options thereon. Afterwards in the latter part of February, 1926, Walter F. Haass became associated with him in the purchase of the land, and still later, in March, 1926, Paul A. Sorge (now deceased, the administrator of whose estate is made a defendant here) also became associated with Arthur G. Wood and Walter F. Haass in the purchase of said lands. These lands were purchased for resale and it was agreed by the parties heretofore named that the profit on the sale should be divided equally among them, and the defendant, Kirby-Sorge-Felske Company, a corporation, of which Paul A. Sorge was president, was selected by Arthur G. Wood and his associates as their agent to sell the land so purchased by them.
“The Kirby-Sorge-Felske Company, as such agent, organized a syndicate to purchase the land and said plaintiff, Fred A. Lehmann, became trustee of the syndicate. Among the syndicate members were the Kirby-Sorge-Felske Company, Paul A. Sorge, and Arthur G. Wood. It was represented to the members of the syndicate by the Kirby-Sorge- Felske Company that the syndicate was purchasing the land for the same price that was paid for the land to the owners by Messrs. Wood, Haass, and Sorge, such sum being $56,750, but the land was sold to the syndicate by the Kirby-Sorge-Felske Company for the sum of $87,500, and thus $29,000 of this was profit on the sale of the land. As part of the purchase price of the land, on July 1, 1926, Fred A. Lehmann as trustee for the syndicate, executed to Arthur Gr. Wood, a note and mortgage for $29,000. Afterwards, on September 13,1926, Arthur Gr. Wood assigned this mortgage and note to Dr. Robert T. Tapert and received therefor $26,000, the net proceeds of the sale, and afterwards, after deducting certain expenses, this amount was equally divided among Wood, Haass, and Sorge. The Kirby-Sorge-Felske Company, for selling this land to the syndicate of which they were a member, received a commission of $4,375. * * *
“The court is of the opinion that the Kirby-Sorge-Felske Company was the agent of Wood, Haass, and Sorge in the sale of the land to the syndicate, and as such represented to the syndicate members that they were buying the land at the same price paid the original owners. It is now evident that such was not the fact. The principal is responsible for the misrepresentation of the agent where the principal receives the fruit of such representation, even though the principal has no knowledge of the misrepresentations of the agent.
“It is also true that the syndicate was in the nature of a joint adventure entered into by its members, among whom were Paul A. Sorge, the KirbySorge-Felske Company, and Arthur G. Wood. Therefore, it was the duty of the last named to disclose in a fair and honest manner the true price of the land to their fellow members and not by a suppression of fact, within the right of the other members to know, procure thereby secret profit or commission.
“It therefore follows that a decree may be entered against Arthur G-. Wood, the Kirby-Sorge-Felske Company, and the estate of Paul A. Sorge, and in favor of Fred A. Lehmann as trustee, for $29,000, with interest at the same rate that the note is drawing from July 1, 1926, until the date of the decree.”
It is claimed that the properties were purchased by Wood, Haass, and Sorge before organization or intention of forming the syndicate, of which plaintiffs became members, and of which Mr. Haass never was a member.
Was the so-called syndicate, with Lehmann, trustee, so far of the nature of a joint adventure as to make applicable rules of law relative to a fiduciary relation between promoters, members, and beneficiaries ?
The term “joint adventurers” is one of variable meanings. Lehmann was trustee, but had no greater rights in the property by reason of that fact than his coadventurers. Here was a special association of several persons in a single venture, seeking profit without any actual partnership or corporate designation. The law designates such an enterprise a joint adventure and the participants joint adventurers, and, as such:
“Within the scope of the enterprise they stand in a fiduciary relation each to the other, and are bound by the same standards of good conduct and square dealing as are required between partners. This obligation begins with the opening of the negotiations for the formation of the syndicate, applies to every phase of the business which is undertaken, and continues until the enterprise has been completely wound up and terminated.” 33 C. J. p. 851.
We quote, with approval, the following found in 62 A. L. R. 18:
“Where one of the parties to a joint adventure obtains a profit by misrepresentations as to the cost of property related to the enterprise it is well settled that he has breached the fiduciary relationship, and must account for such profit to the remaining coadventurers.”
This is supported by citation of many authorities.
The property was acquired in behalf of a joint venture, and it is immaterial in whose name the title was taken, as the one holding the title is but trustee for his associates.
We do not find that plaintiffs have lost any rights or defendants have gained any immunity by laches. The statute of limitations had not run its course, and the suit was brought within a reasonable time after discovery of the fraud.
It is claimed that the administrator of the estate of Paul A. Sorge, deceased, is not a proper party defendant. It is said that:
“If Paul A. Sorge committed a fraud either by himself or through an agent, he committed a series of torts at different times against different unconnected and unrelated persons. We believe that no authority can be found which authorizes these persons to join as plaintiffs in a suit in equity or in an action at law against the administrator of Sorge’s estate, but, on the other hand, are required under the statutes * * * to file their claims, if any they have, before the commissioners on claims, appointed by the probate court”—
citing 3 Comp. Laws 1929, § 15688, which provides for the appointment of commissioners on claims and forbids action against an executor or administrator, except actions of ejectment or to recover the possession of real estate and actions of replevin, and section 15723, to like effect.
Plaintiffs contend that:
“The estate of Pañi A. Sorge is interested in the joint adventure represented by the syndicate and is therefore interested in the proceeds of the mortgaged land when sold; and accordingly the estate of Paul A. Sorge represented by the administrator is a proper party to the bill of complaint. Therefore, a court of .equity having once acquired jurisdiction of the parties and subject-matter will - proceed to render full relief in the premises,' if it should be found that Paul A. Sorge in his lifetime as one of the joint adventurers wrongfully acquired an undisclosed profit in the transaction. It has been held many times in Michigan that the machinery of the probate court is wholly inadequate to adjudicate such matters”- — ■
citing Graham v. Graham, 171 Mich. 307; Burgess v. Jackson Circuit Judge, 249 Mich. 558; Petrie v. Torrent, 88 Mich. 43.
The Constitution, article 7, § 13, vests in the probate court such jurisdiction and powers as may be prescribed by the legislature. The legislature, in declaring the powers and jurisdiction of the probate court, added the following proviso:
“That the jurisdiction conferred by this section shall not be construed to deprive the circuit court in chancery in the proper county of concurrent jurisdiction as originally exercised over the same matter.” 3 Comp. Laws 1929, § 15519.
In People, ex rel. Campau, v. Wayne Circuit Court, 11 Mich. 393 (83 Am. Dec. 754), it was stated, quoting syllabus:
“Under our probate system, a very large portion of the old equity jurisdiction is vested in the courts of probate; and it seems that the court of chancery has jurisdiction in those cases only in which an adequate remedy does not exist in the probate court.”
See, also, In re Estate of Andrews, 92 Mich. 449 (17 L. R. A. 296).
The case at bar involved a fiduciary relationship incapable of being adjudicated in the probate court and presenting a proper subject for application of principles available only in a court of equity.
The decree in the circuit court is affirmed, with costs to plaintiffs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Fead, J.
November 29, 1929, defendant issued to plaintiff a policy insuring his residence against fire for $1,600 and the contents for $1,000. The building had an old shingle roof, and, because of it, defendant, on November 14, 1930, assumed to reduce the amount of insurance, under a clause in the policy giving the secretary power to “cancel” or “suspend” the policy or any part of it, and wrote plaintiff:
“Therefore, until this house is reroofed, it will be necessary for us to decrease the insurance pn your dwelling house and contents to one-half the amount which you are now carrying. ’ ’
The letter, which was received by plaintiff November 19th, also stated that the secretary was mailing indorsement to be attached to the policy, showing the amount of insurance. The fire was November 21st. The indorsement was not mailed by defendant until the afternoon of November 21st, after the fire. The indorsement “decreased” the amount of the policy unconditionally, without limit of time, arid made no provision for reinstatement on reroofing, either automatically or on application.
Defendant sent an adjuster, to whom plaintiff made the claim that the insurance was in force for the original amount, hut who refused to permit execution of proofs of loss for more than the reduced sum. Proofs of loss were made November 25th, and, on December 7th, plaintiff wrote defendant, contending that the insurance in force at the time of the fire was the original amount, as the policy required 10 days’ notice of cancellation, and, on December 11th, defendant replied to the effect that, while cancellation of the whole policy required 10 days’ notice, reduction took effect immediately on giving notice to the assured. Defendant contends the “decrease” was a “suspension” rather than a “cancellation” of part of the policy.
In the policy, cancellation and suspension in whole or in part are treated in the same section, and we think the circuit judge gave it a proper construction in holding that defendant’s contention was untenable, and that the decrease, whether it .be called cancellation or suspension, was not effective for failure of 10 days’ notice to plaintiff. However, the language of the section and other provisions of the policy afford sufficient basis for argument upon the construction that it cannot be said defendant did not make its contention in good faith. Its counsel still vigorously contends for the same construction.
On December 12th defendant mailed plaintiff a check for the reduced amount “in full” for the loss, on the back of which appeared the words:
‘ ‘ This draft in full payment of loss of Dwl. House & Oont. & Furn. Per. on 11-21-30.
“Insured under Policy No. 41263 and we hereby jointly and severally release the State Mutual Rodded Fire Insurance Co. of Mich, from any and all claim therefor. G-eo. W. Pueeer.”
Plaintiff retained the check two or three days and then cashed it. Thereafter, plaintiff’s attorney and defendant had correspondence, in which payment of the balance of the original sum was demanded and refused, the parties maintaining and stating their positions as to the validity of the decrease, and plaintiff’s attorney further claiming that the receipt was induced by fraudulent representations of defendant that the decrease was valid. Without tendering back what he had received, plaintiff brought this suit on the policy to recover the balance of the policy sum, and had judgment.
The question is whether plaintiff may ignore his release and sue in contract without tender back of' the amount received hereunder.
Plaintiff relies on Leeson v. Anderson, 99 Mich. 247 (41 Am. St. Rep. 597), and kindred cases, which hold that, where both liability and amount are undisputed, the acceptance of part of the debt in discharge of the whole is not binding, because there is no consideration for release of the unpaid portion. The case is not in point, because liability for part of the claim at bar was in dispute.
In his declaration, plaintiff claims he was defrauded in executing the release by defendant’s representations that the amount of insurance had been lawfully decreased. Upon such claim, defendant relies on Speath v. Merchants’ Life Insurance Co., 245 Mich. 100, in which it was held that, where a settlement is induced by fraud, the defrauded party has the option of remedies at law, (1) to rescind the contract of settlement, by putting or offering to put the other in status quo by payment or tender back of money received, and to sue on the original contract, or (2) to retain the money received and sue for damages for the fraud. Jewett v. Petit, 4 Mich. 508, 513; Pangborn v. Continental Insurance Co., 67 Mich. 683. If fraud had been proved, the Speath Case would control, because, as the action is on contract, tender of restitution was necessary as a condition of suit.
However, the court did not find, and the testimony did not show, fraud. While defendant made the representations, plaintiff did not claim he relied on them in making settlement. On the contrary, he continuously and consistently contended that the original policy was in force and he cashed the check, after ample time for deliberation, because, “I was glad to get a part of it. It was better than none.” If the release Avas not induced by fraud, the case falls within Long v. Ætna Life Insurance Co., ante, 206, decided while the appeal was pending, in which it was held that if part of a claim is undisputed and part disputed, acceptance of the undisputed portion in discharge of the whole is binding.
The failure of the parties to make a verbal agreement of settlement, separate from the indorsement on the check, is not of consequence. The rule as stated by Mr. Justice Wiest in Shaw v. United Motors Products Co., 239 Mich. 194, 196, is:
“The applicable rule of law is, if the tender is in full satisfaction of an unliquidated claim, the amount of which is in good faith disputed by the debtor, and the creditor is fully informed of the condition accompanying acceptance, an accord and satisfaction is accomplished if the money so tendered is retained; for there can be no severance of the condition from acceptance, and it avails the creditor nothing to protest and notify the debtor that the amount tendered is credited on the claim and not accepted in full satisfaction.”
See, also, Stone v. Steil, 230 Mich. 249; Eisenberg v. C. F. Battenfeld Oil Co., 251 Mich. 654.
Judgment will be reversed, and the cause remanded, with directions to enter judgment for defendant, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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] |
Fead, J.
May 23,1929, defendant gave plaintiff an order to purchase for him 1,000 shares of Bach Airplane Corporation stock, and advanced $500 thereon. Plaintiff made the purchase and notified defendant May 28th. June 27th, it wrote defendant that it had sold 200 shares of the stock for his account and risk. The reason for the sale was not shown, and it is not claimed to have been in foreclosure of the. pledge. July 2d, it wrote him that it was holding for his account 1,000 shares on which there was no delivery instruction, asked him how he wanted the stock handled, stated that unless it heard from him within a week it would be forced to sell on the open market, and asked for a reply.
Defendant said he was away from home from about June 1st to July 10th, and received these notices on the latter date. He made no reply to them, did nothing in the matter, and, late in the fall, when plaintiff told him, over the telephone, that it was holding 800 shares of stock for him, he replied that it had notified him that it had sold, the stock, and, therefore, held none for him, and he refused to pay for it. The testimony is undisputed that at all times after the purchase plaintiff had 1,000 shares of the stock which it could have delivered to defendant on demand and payment.
At the trial, plaintiff tendered 1,000 shares of the stock, and had judgment on directed verdict for the price of the whole number, less the advance of $500.
Prior to trial, plaintiff moved for summary judgment for the purchase price of 1,000 shares of stock. The motion was denied, and the denial affirmed by this court in 255 Mich. 584. The purport of the opinion is that, because of the sale of 200 shares, under the facts disclosed by the affidavits, plaintiff was not entitled to judgment for 1,000 shares. The denial of judgment was not res judicata of liability for the 800 shares, even though, which we do not decide, proceedings on denial of summary judgment may be res judicata sometimes. See. 34 C. J. p. 763.
When plaintiff purchased the stock for defendant, the latter became the owner, and the former the pledgee, of the stock. Austin v. Hayden, 171 Mich. 38 (Ann. Cas. 1915B, 894); 41 A. L. R. 1258, note. Plaintiff’s sale of the 200 shares was a conversion of them. 24 A. L. R. 452, note. Undoubtedly defendant was entitled to regard the conversion as a breach of contract and, rescind the whole transaction. Crowl v. Goodenberger, 112 Mich. 683; Lipps v. Lang, 214 App. Div. 235 (212 N. Y. Supp. 79). Instead of acting within a reasonable time by way of rescission, defendant not only took no action thereon but later recognized his continued ownership of the 800 shares, after sale of the 200 shares, by basing his refusal to pay on the basis that plaintiff had sold the stock in July. Under the testimony, the contract was not rescinded, plaintiff continually held for defendant 800 shares, was always able and willing to deliver them, and plaintiff is liable for the price thereof.
As plaintiff’s duty as a broker required it to both buy and hold the stock for defendant (Taussig v. Hart, 58 N. Y. 425), the sale of 200 shares by it gave defendant the choice of two remedies with relation to them: First, he could treat it as an assumption of the ownership of the 200 shares by plaintiff, a repudiation of his order to buy such amount, and the use of his money by the broker for its own benefit, and, upon this theory, would be entitled to recover the advance apportionable thereto (Shiel v. Stoneham, 77 Misc. Rep. 125 (135 N. Y. Supp. 1024); or, second, he could treat the sale as a conversion of his property and recover damages as upon ordinary conversion, 4 R. C. L. p. 286.
Because of the theory upon which the case was tried, defendant has not made an election. To ter mínate the litigation, we will assume that he would elect the remedy most advantageous to himself. This would render the judgment excessive, as plaintiff would be entitled to judgment only for purchase price of 800 shares of stock, less the advance of $500, with interest.
The cause will be remanded to the circuit court. If plaintiff will remit the excess of the judgment within 15 days, it will be so corrected and affirmed. Otherwise judgment will be reversed, and new trial ordered. Defendant will have costs of this court.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff having purchased a LaSalle automobile for $3,006 had delivery of the car made at the Staffer Hotel in Detroit, where he was registered as a guest August 5, 1927. From the hotel the car was taken by one of defendant’s employees to its garage for storage. For the purpose of identification, defendant had cards or tickets consisting of three sections, each section bearing the same number. Upon receiving an automobile, one section was detached and delivered to the customer, one was attached to the automobile, and the other delivered to the office of defendant’s cashier at the garage. When the customer called for his car, he was required to produce and surrender his storage ticket as the evidence of his being entitled to delivery of the automobile.
On the morning following receipt of plaintiff’s car, a party telephoned defendant, represented himself to be the owner, and requested delivery of the automobile at the Masonic Temple at Detroit. This party gave the name of plaintiff, stated the number of plaintiff’s room at the Staffer Hotel, gave a description of the car, the number of the storage check, and also the license number. Thereupon defendant sent the car in charge of one of its employees to the Masonic Temple. A man purporting to be plaintiff met defendant’s employee as he drove up in front of the Masonic Temple, stated he was Mr. Crowley, and thereupon informed the employee that he had left his storage check at the hotel, but if necessary he would go to the hotel to obtain the same, although he was in a hurry to leave the city. Thereupon defendant’s employee delivered the car to this man without receiving the storage check. Somewhat later on the same day plaintiff called for his car and then learned it had been delivered to some one else under the circumstances above stated. About .60 days later this automobile was recovered in Chicago and returned to Detroit. In the meantime it had been driven approximately 5,000 miles, two fenders were damaged, and there was also damage to other portions of the car. Upon becoming repossessed of the car, defendant tendered it to plaintiff, who refused to accept it. At the time of tender defendant denied any and all liability to plaintiff by reason of the damage he had sustained in consequence of defendant’s failure to protect plaintiff’s automobile and deliver it upon demand. Later plaintiff brought this suit in trespass on the case, added a count in assumpsit, and claims as damage the value of the automobile at the time defendant failed to redeliver it to plaintiff upon the latter’s demand therefor. In the circuit court plaintiff had judgment, and defendant has appealed.
Plaintiff’s right to recover is based upon alleged negligence of defendant in the performance of its contract of bailment, and he asserts that defendant’s failure to properly perform such contract constituted a conversion of plaintiff’s automobile. This contention of plaintiff was sustained by the trial judge, who heard the case without a jury; and such holding is assigned as one of the reasons in support of this appeal. Aside from the law generally applicable thereto, this phase of the case to some extent would seem to be controlled by the terms of the storage ticket delivered to plaintiff. On the front of this ticket the following appears:
“Present this ticket to the cashier on first floor and obtain receipt for your car. ”
On the back of the ticket the following appears:
“Detroit Garages, Inc., at all times will endeavor to protect the property of its patrons bnt it assumes no responsibility for any loss by theft of any automobile or part thereof, or for damages due to negligence of other than its own employees.”
¥e think appellant’s contention that the testimony does not show negligence on its part incident to this bailment cannot be sustained. From the terms of the storage ticket the customer had a right to understand that delivery of his automobile would be made only upon presentation of his portion of the storage ticket to defendant’s cashier, and .that defendant’s employees would not be guilty of negligent conduct incident to the storage or delivery of the car which would result in damage to the customer. Defendant breached the terms of its contract, and was guilty of negligence by delivering plaintiff’s car without receiving the storage ticket delivered to him and without making a more careful investigation than was made in this case to assure itself that the one asking for delivery of the car was entitled thereto. Instead, in the instant case, defendant through its employee delivered plaintiff’s car at another place than that at which it was received and to an entire stranger without presentation of the storage ticket and without any assurance that the car was being delivered to the proper party except the word of the stranger to whom it was .surrendered. The record is abundantly sufficient to support the circuit judge’s finding that defendant was guilty of negligence, and that its conduct constituted a breach of its contract of bailment. Defendant’s failure to return to plaintiff his automobile at the time it was demanded from storage and defendant’s subsequent inability to do so for a period of 60 days in consequence of its own negligence, together with the fact that the car had been damaged substantially both by use and misuse or accident in the meantime, constituted conversion. Donlin v. McQuade, 61 Mich. 275; Tatro v. Baker-Fisk-Hugill Co., 215 Mich. 623.
Notwithstanding’ appellant denied all liability at the time it became repossessed of plaintiff’s automobile and tendered it to him, it is now contended by appellant that if it is liable at all it is only for the difference of the value of the automobile when received in storage and its value at the time its return was tendered to plaintiff; and that plaintiff was bound to accept it even in its damaged condition at the time belated return was tendered. Such is not the law.
“As a general proposition when an actual conversion of chattels has taken place, the owner is under no obligation to receive them back, when tendered by the wrongdoer. There may be exceptions to this general rule when the wrong lacks the element of wilfulness, has been committed in good faith, and the court, in its discretion, orders a return upon timely application by the defendant in an action of trespass or trover accompanied by an offer to pay costs and showing’ that no real injuries have been suffered by the plaintiff when possession is restored.” Carpenter v. American Building & Loan Ass’n (syllabus), 54 Minn. 403 (56 N. W. 95, 40 Am. St. Rep. 345).
“As a general rule, an offer to return property converted is not admissible even in mitigation of damages, but where the conversion is technical, inadvertent, or the result of a mistake, and the property is still in statu quo, an offer to return it may be shown in mitigation of damages.” 38 Cyc. p. 2102.
See, also, 3 R. C. L. p. 118, and McGraw v. Sampliner, 107 Mich. 141.
After the automobile was repossessed by defendant, the parties entered into a stipulation relative -to its repair, resale, etc. Under this stipulation plaintiff received $405, March 15, 1929. When delivered to defendant plaintiff’s automobile was of the value of $3,006. Plaintiff’s damage amounts to this sum, $3,006, with interest at the legal rate from the date of conversion (August 6, 1927), less the sum of $405 credited as of the date paid to plaintiff. Thus computed to the date judgment was entered in the trial court (August 25, 1931), judgment should have been entered for $3,190.17. Due to some" misunderstanding between counsel as to whether the trial judge in entering judgment should have given consideration to the stipulation above mentioned, judgment was entered for $3,606. Notwithstanding this amount was excessive, since appellant denied all liability, appellee will have judgment for $3,190.17 entered as of August 25, 1931, and costs of both courts.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
This is an appeal from an order reinstating a cause that was dismissed by stipulation of the parties.
The material facts are undisputed. On March 10, 1930, the plaintiffs commenced this suit in the circuit court of Saginaw county on an insurance policy to recover a fire loss. The defendant company appeared and pleaded to the declaration. When the trial came on the parties stipulated to dismiss the suit and settle the controversy by arbitration. The stipulation was filed June 5, 1930. It provided that each party should select an arbitrator and the two should select a third and if they failed to agree on the third, he was to be selected by the court. They were unable to agree, and the court appointed the third arbitrator. The arbitrators were unable to agree on the loss, but, on October 1, 1930, they filed an award in which the arbitrator selected by the plaintiff and the arbitrator selected by the judge agreed on a loss of $1,736, and the arbitrator selected by the defendant company fixed it at $650. The defendant claimed that there was no enforceable award, and requested that new arbitrators be appointed. The plaintiffs seem to have been satisfied with the award and refused further arbitration. The defendant decided to take- the controversy into another circuit, so, on November 3, 1930, it filed a bill in the circuit court for Ingham county for the purpose of securing' a cancellation of the insurance policy on the ground of fraud and of having the award of the arbitrators decreed to be null and void. While this suit was pending counsel for the parties continued hostilities in the Saginaw circuit. On November 10, 1930, the defendant secured an order mmc pro tunc from the circuit judge dismissing the cause as of the date of the stipulation. On November 13, 1930, the plaintiffs filed a motion to set aside the stipulation. On the hearing of this motion the court did not disturb the stipulation, but entered an order setting-aside the mmc pro tunc order of dismissal and reinstating the cause. It is: from this order that the defendant has appealed.
The stipulation that the case be dismissed without costs, mutually agreed to in open court, followed by a formal order of dismissal, effectually discontinued the cause as of the date of the stipulation. Chronowski v. Zielinski, 168 Mich. 590.
Unless fraudulently obtained, the trial court was without authority to set aside the order of dismissal. Thompson v. Bay Circuit Judge, 138 Mich. 81.
No fraud was shown. The court erred in setting aside the order of dismissal and reinstating the cause. The order appealed from is reversed, with costs to the defendant.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
Plaintiffs had decree for rescission of a land contract on the ground of fraud, in representing that the lot had a sand bathing beach. We agree with the circuit judge in his finding that the representations were material, made, relied upon, and false.
Decree affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiffs sued defendants to recover rent alleged to be due, counting on a written lease and on the common counts in assumpsit. The lease sued upon provides:
“That, if during the demised term, proceedings shall be instituted under the power of eminent domain, which shall result in an eviction, total or partial, of the tenant, that at the time the trial of such proceedings shall commence, this lease shall be void and the term above demised shall cease and terminate, and, if the tenant continue in possession, the tenant shall be a tenant from month to month, and for no longer term, anything in this instrument to the contrary notwithstanding.”
Defendants, in answer, set up the clause of the lease above quoted, allege proceedings were commenced in the recorder’s court for the city of Detroit to condemn a part of the demised property; impaneling a jury in the condemnation suit commenced December 3,1928, was completed January 3, 1929, the jury sworn January 10,1929; and the same resulted in a total and partial eviction of defendants, and consequently they were not liable upon the lease. From a judgment for plaintiffs and against defendants for $582 and costs, plaintiffs appeal.
Proceeding's were instituted under the power of eminent domain to condemn that part of the premises described in defendants’ plea and answer in the recorder’s court of the city of Detroit, November 17, 1927. A jury was impaneled and the trial of said condemnation proceedings commenced as indicated in defendants’ plea and answer. April 18, 1930, one of the jurors therein died, a mistrial was declared, a new jury impaneled, the case tried over, and a verdict rendered by the second jury February 16, 1932. During the demised term proceedings were instituted which resulted in a partial eviction of defendants. The trial of such condemnation proceedings commenced when the jury was first sworn— at least when the jury viewed the premises. The lease does not provide it shall terminate at the commencement of any particular trial or at the commencement of a trial which shall result in a condemnation of a part of the premises and award in damages. “At the time the trial of such proceedings shall commence, this lease shall be void and the term above demised shall cease and terminate.” This means the commencement of any trial of the condemnation proceedings instituted, which proceedings result in a verdict and eviction. This provision was undoubtedly inserted in the lease to prevent defendants as tenants from participating in the award made by the jury. The fact there was a mistrial or more than one trial does not alter the terms of the lease. Trial of the condemnation proceedings commenced. "When trial commenced the lease ended. We find no error in the proceedings. Judgment of the trial court is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
On the first day of December, 1928, the defendant, Ralph Hulst, entered into a partnership with Isaac Hollemans and assumed responsibility for outstanding partnership obligations. These included an indebtedness to plaintiffs. In the course of the partnership business two notes and various renewals thereof were given by the partners to plaintiffs as evidence of such indebtedness. On or about March 11, 1930, the defendant sold his interest in the partnership to Hollemans, who assumed all of the partnership debts. Notice was given of such dissolution and assumption of the firm’s liabilities to plaintiffs and other partnership creditors. At that time plaintiffs were the payees on two partnership notes, one for $355.69, the other for $487.80. After dissolution of the partnership (March 11, 1930), these notes apparently were renewed each 90-day interval until this suit was brought by plaintiffs on July 29, 1931. In the meantime Hollemans became a bankrupt; but judgment was rendered against Hulst, the sole defendant, on the theory that he was still liable on these notes as partnership obligations. Defendant has appealed.
In the circuit court and also on this appeal the defendant asserts that plaintiffs are not entitled to recover against him in consequence of the provisions of 2 Comp. Laws 1929, § 9876, being section 36 of the uniform partnership act, which reads:
“Seo. 36. (Effect of dissolution on partner’s existing liability).
“ (3) "Where a person agrees to assume the existing obligations of a dissolved partnership, the partners whose obligations have been assumed shall be discharged from any liability to any creditor of the partnership who, knowing of the agreement, consents to a material alteration in the nature or time of payment of such obligation.”
As stated above, after notice to plaintiffs of dissolution of the partnership and assumption of its obligations- by Hollemans, plaintiffs on several occasions extended the time of payment of each of these notes. Defendant asserts this released him from the partnership obligations for which he might otherwise have been liable. As against this contention, plaintiffs claim that defendant was not released by the statutory provision because immediately upon receiving the notice of dissolution, etc., above mentioned, plaintiffs wrote to both Hulst and Hollemans as follows:
“In reply to the notice signed by Isaac Hollemans and sent to the undersigned, we wish to go on record to the effect that this company does not intend to release either of the partners * * * from the joint and several liability which they now have to pay to the undersigned company all obligations heretofore undertaken by them individually or as partners.”
The circuit judge sustained plaintiffs’ contention that, inasmuch as they notified defendant they would not release him, notwithstanding the dissolution of the partnership and the assumption of its obligations by Hollemans, defendant was thus placed in a position “to protect himself,” and that he was not prejudiced by the subsequent renewals of the notes. We think it cannot be held that plaintiffs by serving the quoted notice could avoid the express statutory provision. Neither dissolution of the partnership nor the assumption of th'é partnership obligations by Hollemans released defendant from liability on partnership debts; but he was released when without his consent or acquiescence in any way plaintiffs by renewals of each of these notes extended the time within which the obligations were payable and could be enforced, and in this manner materially altered the nature of each of the obligations.
We cannot agree with appellees’ contention that the statute impaired the contract obligation of defendant to plaintiffs by changing it to one in the nature of a suretyship rather than a primary undertaking. Until plaintiffs voluntarily extended the time within which each of these notes were payable payment could have been enforced against defendant. Plaintiffs were charged with knowledge of the law, and if they saw fit to grant to Hollemans an extension of time within which payment could be made without obtaining defendant’s consent or acquiescence in any way, they did so subject to the provisions of the quoted statute and thereby discharged the defendant from his former obligation. Farmers & Mechanics Bank v. Kercheval, 2 Mich. 504; General Tire & Rubber Co. v. Noble, 222 Mich. 545; C. J. Litscher Electric Co. v. Stiles, 247 Mich. 365; Wolverine Cigar Co. v. Knoppow, 253 Mich. 343.
The trial judge, who heard this case without a jury, erroneously entered judgment for plaintiff. The judgment is reversed, and the case remanded to the circuit court with direction to entet judgment for defendant. Costs to appellant.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
North, J.
In November, 1922, plaintiff bank was given a mortgage by the defendants Bubanovich covering several pieces of real estate owned by them in or near Benton Harbor, Michigan. In form this was a blanket mortgage purporting to secure the payment of any indebtedness owing at any time to the bank by the mortgagors or either of them. Mr. Bubanovich then owed the bank $14,000; but the mortgage tax paid seems to have been computed on $10,000 only. On March 27, 1923, Mr. and Mrs. Bubanovich sold the property in suit, known as the Pipestone street block, in Benton Harbor, Michigan, to the defendant Kidd, Dater & Price Company, a corporation. The conveyance was by warranty deed free and clear of all incumbrances. Plaintiff’s bill to foreclose its mortgage was filed October 18, 1929, the amount claimed due and unpaid being $9,697. The defendant Kidd, Dater & Price Co. answered and filed a cross-bill, praying cancellation of the mortgage as to the Pipestone street property. Upon hearing in open court, the circuit judge granted the relief prayed in the cross-bill. Plaintiff has appealed.
In the cross-bill it is alleged that at the time the defendant Kidd, Dater & Price Co. were negotiating the purchase of this property from Mr. and Mrs. Bubanovich, the plaintiff agreed:
“That if the said Paul Bubanovich, or the said Kidd, Dater & Price Company, would pay to the said Benton Harbor State Bank the sum of $3,171.94, that it, the said bank, would release the above-described lands and premises from the said mortgage, and the said Kidd, Dater & Price Company would hold said property, if conveyed to it by said Paul Bubanovich, free and clear from the terms, conditions, and covenants contained in the said mortgage as if said property, lands, and premises had never been included therein.”
The sum of $3,171.94 was fixed as the payment necessary to reduce Bubanovich’s indebtedness to the bank to $9,000. Cross-plaintiff claims that, in consequence of the understanding and agreement between the parties above quoted, it gave its check for $3,171.94 to Paul Bubanovich, and that from the proceeds of this check a payment of $2,375.30 was made to plaintiff. Because of previous payments, this reduced the amount Bubanovich owed the bank to the agreed balance of $9,000. Cross-plaintiff asserts that this payment was made and the transaction closed between it and Mr. and Mrs. Bubanovich in reliance upon the statement of the cashier of the bank that the bank’s mortgage would be released on the Pipestone street property upon the payment to the bank of a sum sufficient to reduce the indebtedness of Bubanovich to the bank to $9,000. In this connection there was a further agreement between the bank and Bubanovich that as substituted security for his indebtedness to the bank he would give to it a mortgage covering three pieces of farm property which he was to receive from Kidd, Dater & Price Co. in part payment of the property he was conveying to it. Plaintiff claimed the mortgage last above-mentioned was never executed and delivered to it. On this phase of the case there is a direct conflict between the testimony offered in behalf of the bank and the testimony given by the defendant Bubanovich. The record of the meeting of the directors of the plaintiff bank of March 26, 1923, hereinafter quoted, indicates that the bank contemplated taking a mortgage on these farm properties; and we think the record justifies the finding of the circuit judge in this connection wherein he states:
“I must conclude, therefore, as a matter of fact, on this record, that on or before March 27, 1923, Bubanovich had executed and delivered to the plaintiff bank, through Mr. Resch (the cashier) the mortgage on the three farms referred to in the directors’ record of March 26th.”
The sale to Kidd, Dater & Price Co. was evidently preceded by considerable negotiations with the bank as to how the Pipestone street property could be released from the bank’s mortgage. Besides other proof, there is much in the record of the action taken by the bank directors which supports the above-quoted finding of the trial judge. .The following is from the minutes of the directors’ meeting of February 13, 1923:
“Paul Bubanovich —: blanket mortgage. The cashier reported that the Indiana Harbor loan would soon be paid, the indorsement upon the mortgage. Moved by F. L. Bradford, supported by L. F. Sutherland, that we release that part of the mortgage covering the Pipestone block if the loan be reduced to $7,000. On a yea and nay vote all present voted yea. ’ ’
The minutes of the directors ’ meeting of March 26, 1923, show:
“Cashier reported that Paul Bubanovich had traded his Pipestone street block for three farms in Van Burén and Cass counties, and desired release of the block from blanket mortgage, replacing same by blanket mortgage on said three farms. Moved by D. B. Sutherland, supported by E. C. Bowlby, that the cashier be authorized to give partial release of our blanket mortgage covering Pipestone street block, substituting for same a blanket mortgage on two said farms of 40 acres each (being first lien) and on 180 acres (subject to first mortgage of $5,000). On a yea and nay vote all voted yea.”
Again on April 16, 1923, the cashier of the bank wrote to the bank examiner:
“Paul Bubanovich — reduced to $9,000, since examination. We feel amply secured on this loan, and are confident that Mr. Bubanovich will be able to care for the balance in the near future.”
Notwithstanding the mortgage on the farms was not recorded and was not produced at the trial of the case, we think the trial judge was correct in finding that each of the conditions upon which the bank had informed the Kidd, Dater & Price Co. it would release its mortgage on the Pipestone street property and accept in lieu thereof the mortgage covering the three farms was complied with, and that the conduct of the bank was such that Kidd, Dater & Price Co. was justified in relying upon its promise that the mortgage on the Pipestone street property would be discharged. The facts and circumstances disclosed by this record force the conclusion that the bank was well aware that Kidd, Dater & Price Co. assumed that the mortgage on the Pipestone street property was discharged or would be discharged by the plaintiff. Notwithstanding this, the bank con- tinned to make loans to Bubanovich for a number of years thereafter and to receive from him payments on account from time to time, and at the time of filing its bill of complaint the bank claimed there was due it from Bubanovich $9,697. In the meantime the farm properties against which plaintiff was to have a mortgage lien had been disposed of by Bubanovich. As between plaintiff and Kidd, Dater & Price Co., we think it would be highly inequitable, under the circumstances of this case, to allow the former to enforce this alleged mortgage lien on the property now owned by the latter.
Appellant’s contention that even if Kidd, Dater & Price Co. was promised a release of the mortgage by plaintiff’s cashier, such promise or agreement was not within the scope of the cashier’s authority and was without consideration, eannot.be sustained. This record discloses that the transaction was within the scope of the ordinary duties of plaintiff’s cashier, and further, the record also discloses that the transaction was called to the attention of the bank directors and acted upon by them. In addition to this the bank received upwards of $2,000 paid to it by Kidd, Dater & Price Co. through Bubanovich, and the record discloses that the cashier knew the source from which the bank received this money. It is difficult to understand how or why Kidd, Dater & Price Co. would have paid this sum of money and taken the pains it did to see that the bank received it from Bubanovich except it was done in reliance upon the understanding and agreement which the-defendants assert they had with the bank.
The decree entered in the circuit court is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
The plaintiffs herein are common carriers, each operating interurban motor busses over routes extending either into or through the city of Grand Rapids, which together with certain of its officers is a defendant herein. Each of plaintiffs has secured from the Michigan public utilities commission a permit to operate its interurban motor busses. The bill of complaint was filed to enjoin the defendants from enforcing an ordinance of Grand Rapids which was enacted for the purpose of licensing and regulating the operation of interurban auto busses in the city. After hearing in the superior court of Grand Rapids a decree was entered dismissing plaintiffs ’ bill of complaint, and they have appealed.
The plaintiffs urge that this municipal ordinance is invalid. Among the 15 reasons assigned in support of this contention are the following:
“ (9) That the city of Grand Rapids has no power to enact said ordinance.
“(12) That the city of Grand Rapids has no authority to require plaintiffs, all or any of them to comply with said ordinance before it can operate upon the streets of the city of Grand Rapids where said plaintiffs are operating by virtue of a certificate of convenience and necessity issued by the Michigan public utilities commission in accordance with the provisions of Act No. 209, Pub. Acts 1923 (2 Comp. Laws 1929, § 11342 et seq.).”
Determination of the questions presented necessitates consideration of the ordinance in the light of the Michigan constitutional provision and the statute under which the State has undertaken to regulate common carriers of persons and property by motor vehicles upon the public highways of this State. The constitutional provision is of primary importance. It reads:
“The right of all cities, villages and townships to' the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships. ’ ’ Article 8, § 28.
Subject to the above constitutional limitation, the control of its highways is in the State except as dele gated by legislative enactment to some State agency. In the exercise of its power of general control over highways the legislature passed Act No. 209, Pub. Acts 1923, being 2 Comp. Laws 1929, § 11342 et seq. The title to this-act and section 1 read:
“An act to regulate and define common carriers of persons and property by motor vehicle on public highways of this State, prescribing the payment and fixing the amount of privilege taxes for such carriers, the disposition of such taxes, and prescribing penalties for violation of this act.
“Sec. 1. After thirty days from the effective date of this act, no person, firm or corporation shall engage or continue in the business of transporting persons or property, by motor vehicle, for hire, upon or over the public highways of this State, over fixed routes or between fixed termini, or hold themselves out to the public as being engaged in such business, unless and until they shall have obtained from the Michigan public utilities commission a permit so to do, which said permit shall be issued in accordance with the public convenience and necessity and shall not be assignable: Provided, That this act shall not apply to carriers operating exclusively within cities or villages.”
Section 2 directs the public utilities commission to prescribe such rules and regulations as shall by it be deemed appropriate under the act; and authorizes the commission to withhold a permit when the applicant appears not able to furnish “adequate, safe or convenient service to the public.”
Section 4 requires that the permit shall fix the route over which the carrier is to operate.
Section 6 empowers the commission after hearing granted to suspend or revoke the permit for any violation of the act or of any lawful order or regulation of the commission.
Section 7 requires the holder of the permit to carry insurance for the protection of passengers and those entrusting property to the carrier for transportation, with power in the utilities commission to fix the amount and to approve such insurance.
Section 8 requires every carrier to pay to the State “a fee for the privilege of engaging in the business,” the amount of the fee being fixed by the statute.
Section 9 fixes the penalty for violation of the act.
The State having acted, it must be assumed, and this record discloses, that it has undertaken to and does occupy the whole field relative to regulating motor vehicles as common carriers on the highways of this State, subject only to the constitutional limitation or reservation above quoted. In testing the validity of the ordinance under consideration, it must therefore be ascertained whether the city has exceeded the power reserved to it by the constitutional provision, and to what extent, if at all, the defendant city by enacting the ordinance has invaded the field of control of motor vehicle carriers already undertaken by the State. This necessitates a somewhat detailed consideration of the provision of the ordinance. Its scope and purpose are plainly indicated by its title which reads:
“An ordinance to license and regulate interurban auto busses in the city of Grand Rapids.”
Section 1 of the ordinance provides that the words “interurban auto bus” shall mean and include any motor vehicle engaged in the transportation of passengers for hire “between points within the boundaries of said city and to or from points or places outside said city, regardless of locality.” It thus appears from the title and section 1 that the scope of the ordinance is such that it clearly goes into the field in which, the State regulations are operative. It must follow that if the subsequent provisions of the ordinance are such that they are intended to be effective outside the city limits of Grand Rapids they are invalid; but if the ordinance regulations in the reasonable control of city streets, alleys, and public places are effective only within the city of Grand Rapids their validity may be sustained. Section 2 of the ordinance, after providing that application for a license must be made to the city commission, requires the applicant to show the commission that “he is a person of good moral character and fitted for said business.” The section also provides that the applicant must file with the commission a schedule showing the “times of arriving and departing and shall operate only in accordance with such schedule.” Provision is made that the schedule may be changed “with the consent of the city commission.” Section 3 requires that each driver of an interurban bus shall obtain a license or permit from the city. Section 4 requires the applicant for a driver’s permit to state “the name, age, address and experience in driving,” and that the applicant shall be “of good character and fitted for said business and pay a fee of one dollar; ’ ’ and the applicant must be at least 18 years of age (section 6). Section 7 of the ordinance requires that each interurban auto bus “shall be in good running condition and repair and the interior shall at all times be kept clean and sanitary;” that no interurban auto bus shall carry passengers in excess of the capacity stated in the application for the license. Violation of any of the provisions of this section, under the ordinance, constitutes cause for revoking the license after hearing before the city commission, and the decision of the city commission thereon is made final.
Each of the matters of regulation noted in the foregoing paragraph affects and in a way controls either the equipment or the method or manner of operating an interurban auto bus outside the city of Grand Rapids as well as within its limits. In other words each of these ordinance provisions invades the field of regulation already taken over by the State under the statute which expressly provides (2 Comp. Laws 1929, § 11343):
“Said commission shall, by general order, prescribe such rules and regulations as shall, by it, be deemed appropriate, under this act. Said commission may withhold such permit in whole or in part, when it appears to the commission that the applicant is not or will not be able to furnish adequate, safe or convenient service to the public, but not without just cause.”
Without stating details, it is sufficient to note that this record discloses the commission acting under its statutory authority has adopted rules and regulations fully covering interurban bus operations. The State having exercised its power of regulation, it follows that each of the above noted ordinance provisions is invalid.
Section 8 of the city ordinance contains detailed provisions in accordance with which each applicant for an interurban auto bus license must carry insurance protecting passengers and those shipping goods against damage. It is requisite that the insurance be approved by the city commission. Here again is an ordinance regulation which clearly affects the operation of an interurban bus outside the city as well as inside. It not only imposes a financial burden which has to do with general operating expenses, but its right to operate as an interurban bus is conditioned upon the city commission approving the carrier’s insurance. However, section 8 of the ordinance has been amended so that, in lieu of compliance with its requirements, the applicant is permitted to “file evidence with the city clerk that he has complied with the State law, and a bond has been filed in accordance therewith.” Notwithstanding this amendment, we think the ordinance provision still invades the field of supervision in which the State is operating under express statutory authority above noted; and therefore this section of the ordinance as amended cannot be sustained.
The only other provision of the ordinance requiring consideration is section 3, wherein the applicant for a license from the city to operate an interurban bus is required to pay an annual fee of $15. Plaintiffs deny the right of the city to require payment of any fee; and further assert if it has such power that the fee now required is excessive. First, we should determine whether the city may require any license fee at all incident to the operation of interurban busses; and, second, if it may, is an annual fee of $15 for each bus excessive under the facts here presented.
Beyond question a municipality has the power to exercise reasonable control of the streets, alleys, and public places within its own limits. This is its constitutional right, and in the exercise thereof it may enact ordinances for the reasonable regulation of interurban motor busses provided such regulation does not affect the business outside the municipality; and if there is actual supervision incident to such regulation, the carrier may be required to secure a license from the municipality and pay a license fee. But as applied to other than intra-city motor busses operating as common carriers, the reasonable control of the highways reserved by the Constitution to cities, villages, and townships is obviously that which is incidental to local traffic regulations and the proper exercise of the police power within the territorial limits of the municipality. If the attempted regulation operates outside the city limits, as well as inside such limits, it is beyond the scope of a valid ordinance regulation. Within the limitation indicated, the city has the power to impose reasonable regulations and supervision, and therefore to require a license and the payment of a license fee.
In determining whether a license fee is excessive, the particular facts of each case are controlling. Vernor v. Secretary of State, 179 Mich. 157 (Ann. Cas. 1915 D, 128). For reasons which will be stated in part, we think the circumstances here are such as justify only a small license fee, practically nominal in amount. As has often been held, the amount of such fee must be gauged by the expense incurred.by the municipality incident to issuing the license and supervising the business the licensee carries on thereunder, if supervision is required. A license fee. may not be imposed as a tax measure in disguise. Vernor v. Secretary of State, supra. Subject to the quoted constitutional limitation, the power of the Michigan public utilities commission to regulate common carriers under Act No. 209, Pub. Acts 1923 (see, also, Acts Nos. 212 and 312, Pub. Acts 1931), is applicable to the use of the public highways within the city limits as well as without. This record discloses that, in view of State regulations, and also because of the relatively small number of interurban busses as compared with other motor vehicles, all of which require regulation and traffic control, the fraction of city regulation and control required by interurban busses is almost negligible. Here the testi mony is that Grand Rapids has approximately 7,500 commercial vehicles, but of these only 88 are operating as internrban busses. This is slightly in excess of one per cent, of the commercial vehicles. If all classes of motor-driven vehicles are included, there are more than 56,000 registered within the city of Grand Rapids. Of this total the interurban busses constitute about 16/100 of one per cent. Therefore, it is not at all probable that because of the interurban bus traffic the city will require more traffic officers, policemen, or traffic lights; or that the upkeep of its streets will cost an appreciable amount more than would be required in the absence of such traffic. While slight supervision to ascertain whether the busses follow the designated city routes and whether suitable station facilities are maintained may be required, obviously the essential supervision is quite inconséquential. Evidently the regulation of interurban bus traffic is only such as is incident to that required for the effectual control of vehicular traffic in general. A license fee gauged by the limited scope of municipal regulation, as well as by the limited proportion of this type of motor traffic in the city, must be small.
In this connection, it must be borne in mind that each of these interurban bus routes passes through numerous villages and townships, and enters or passes through one or more cities other than Grand Rapids. Each of these municipalities has the same constitutional right as Grand Rapids “to the reasonable control of their streets, alleys and public places.” Anything like unrestricted license fees imposed by each of such municipalities would render the operation of interurban busses impossible. It should also be noted as a matter of common knowledge that almost invariably interurban bus traffic follows State trunk line routes, unless otherwise directed by those having authority to determine routes. A large part of the expense of constructing and maintaining these trunk lines within city limits is borne by the State. Such proportion is much greater than the proportion of the interurban bus traffic on city streets.
It is self-evident, that if there is little or no need for supervision or regulation in addition to that effected by the State, and if the city streets are not subjected to an additional burden by interurban bus traffic, the justification for requiring a license at all is meager, to say the least. But under the quoted constitutional provision the city of Grand Rapids has the right of reasonable control of its streets, alleys, and public places. Among matters of proper and reasonable regulation within its own confines are that of prohibiting interurban busses from doing an intra-city business, determining their routes over city streets (see Highway Motor Bus Co. v. City of Lansing, 238 Mich. 146; Red Star Motor Drivers' Ass’n v. City of Detroit, 244 Mich. 480), regulating the rate of speed, requiring observation of traffic signals and parking regulations, designating the place or places of receiving and discharging passengers, requiring reasonable station conveniences, etc. Notwithstanding this power of purely local regulation, because of its unusually limited scope in view of State regulation, we conclude that, an annual fee of $15 for each interurban bus is excessive, and that any license fee imposed by the city must be practically nominal in amount.
Touching the constitutionality of Act No. 209, Pub. Acts 1923 (2 Comp. Laws 1929, § 11342 et seq.), we think it is so framed as not to infringe upon the constitutional rights of municipalities to locally exercise “reasonable control.” Section 1 of the statute expressly provides:
“That this act shall not apply to carriers operating exclusively within cities or villages. ”
And section 8 of the act contains the following:
“Nothing in this section shall be construed to interfere with the right of any city, or village to the reasonable control, by general regulation, applicable to all motor vehicles, of its streets, alleys and public places, or to authorize a carrier to do a local business without the consent of the municipality in which such local business is wholly carried on.”
Thus construed, full force and effect is given to the quoted portion of the Constitution, and no conflict arises between Act No. 209 (Pub. Acts 1923) and Act No. 126, Pub. Acts 1929 (1 Comp. Laws 1929, §2238), granting cities power to provide in their charters:
“For the use, regulation, improvement and control of the surface of its streets, alleys, and public ways and of the space above and beneath them.”
Because the city has the constitutional right of reasonable control, as bearing upon the determination of routes to be followed within the city, stations, station accommodations, etc., the municipality may require the carrier to set forth in his application for a license specified pertinent facts as to the kind of vehicle the carrier will use, the maker’s name, serial number, or other facts which will identify the vehicle, its weight, seating capacity, etc.
The carefully prepared and helpful briefs filed in behalf of the respective parties present other questions of interest. However, conciseness of decision forbids detailed review of all the contentions urged and of all arguments and supporting reasons advanced. All have been carefully considered, and the conclusion reached as stated. To the extent and in the particulars hereinbefore ann'ounced, the ordinance in suit is invalid and unenforceable, and to that extent the plaintiffs are entitled to the injunctive relief prayed. The decree entered in the superior court of Grand Rapids is reversed, and a decree will be entered in this court in accordance herewith. Appellants will have costs of both courts.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
The city of Allegan, by CQndemnation, under the power of eminent domain, sought by the proceedings herein to take property of defendants for the establishment of a hydro-electric light and power plant upon the Kalamazoo river, in the townships of Allegan and Valley, Allegan county.
The issues of necessity and compensation were tried to a jury. The petition of the city sought acquirement of title in fee. The evidence relating to compensation was all on the basis of talcing title in fee. The trial judge, sua sponte, limited the talcing to an easement for flowage purposes, and he so prepared the form of verdict. Counsel for the city, in a preliminary notice of appeal (abandoned, however), asserted error in not permitting acquirement of title in fee by the city, and now contend that the verdict of the jury gave the city title in fee.
The verdict was the usual one in writing, but the circuit judge, in accord with his erroneous opinion of the law, appended thereto, and the jury included, the following finding:
“In determining the just compensation to be allowed to each and all of these defendants for talcing the right to flow their property, we have understood that the city of Allegan would be compelled to clear the land themselves, and in so doing the owners of the land would be deprived of the trees growing thereon, and that all timber on the area to be flooded would become the property of the city.”
This declaration by the jury bars any holding that the jury awarded title in fee to the city and compensation for the fee to property owners.
The erroneous ruling of the judge was not asked by any counsel in the case, and was first injected in the course of instruction to the jury. At that time counsel for one defendant interrupted and called attention to the fact that the petition of the city sought title in fee and not a mere easement. This afforded counsel for the city an opportunity to join in the effort to set the judge right, hut the record discloses no such joinder. In reply to the suggestion mentioned, the court stated:
“I am giving you my opinion, and I am advising this jury that regardless of what a man asks, he can only get what the law allows him, and this applies to the city as well as it would to anyone else. A man may ask for $1,000 in a case, and the jury find that all he is entitled to is $.50, if they do so find, that is all he is entitled to. The city is entitled to get the use of this land only if the jury finds the public necessity. The mere fact that the city asks for the fee can make no difference. It is my opinion that the owner has the same right to use the land right up to the water’s edge that he ever had.”
The ruling of the court radically changed the issue after close of the evidence and left to the jury the fixing of compensation for right of flowage, with no evidence upon that subject. It is no answer to say that defendants were not harmed thereby because of evidence of value of the fee, for such evidence was rendered valueless by the ruling, and compensation for flowage easement was thereby left to mere guess.
The law gives property owners the right to be heard and to submit evidence bearing upon issues presented (1 Comp. Laws 1929, § 3792), and it was unfair to try the issue of compensation for title in fee to the point of submission, and then have the judge change the issue to the elimination of all the evidence.
Under the power of eminent domain the city asked for and was entitled to acquire title in fee (1 Comp. Laws 1929, § 3785), and the parties had the right to go to the jury upon such an issue, inclusive of the compensation to be awarded for the taking of such title.
The statute, 1 Comp. Laws 1929, § 3792, provides:
“The jury shall hear the proofs and allegations of the parties, * * * They shall he instructed as to their duties and the law of the case by the judge of the court. ’ ’
It is unfortunate that the judgment must be reversed, but recognition of rights of defendants leaves no other course open.
Defendant Consumers Power Company owns land along the river which, in union with lands of other riparian proprietors, possesses potential value for water-power purposes, and it asked compensation for the taking away of such future possible use.
The court instructed the jury:
“Evidence has been offered in this case that certain parcels of land were more valuable because they could be used as part of a plan for the construction of a hydro-electric plant, that is, that the Consumers Power Company could get more out of these lands for that purpose than for any other purpose. You are instructed that, in considering that testimony, you can only give it weight if it appears that it is reasonably certain that the lands-could be used for that purpose within a reasonable time, and, if from the whole testimony it appears that such proposed use could not be made within a reasonable time, or that such proposed use is merely speculative, then such testimony should not be considered by you, unless it added to the market value thereof.
“Before any owner of land would be entitled to recover because his lands might be used for flowage purposes in the construction of another dam, it must appear that it is' reasonably probable that all other lands necessary for such project could be acquired by the one owning the lands, and who seeks damages for such use. There must be something more than a possibility; there must be a reasonable probability that all lands necessary for the completion of such projects could be joined in such projects, and such probable use must be such as affects the market value under normal conditions.”
In Mississippi & Rum River Boom Co. v. Patterson, 98 U. S. 403, it was stated:
“In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated.
“So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. ’ ’
This was cited, with approval, in United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 (33 Sup. Ct. 667). In that case there was condemnation by the government of upland bordering a navigable river for the purpose of improving navigation, and it was held that the owner of the upland was entitled to compensation for the fair value of the property, but not any additional values based upon private interest in the potential water power of the river. There the government was exercising a sovereign right in behalf of navigation, while in the case at bar no question of navigation is involved.
Counsel for the power company cites Rankin v. Harrisonburg, 104 Va. 524 (52 S. E. 555, 3 L. R. A. [N. S.] 919, 113 Am. St. Rep. 1050), where it was held that (syllabus):
“Although no one of the riparian proprietors owns the banks on both sides of the stream, nor has the right to erect a dam across it, and no two or more of them, as co-tenants, owns said banks or have the right to erect a dam across it, yet each owns an interest in the power furnished by the stream, although not actually applied, which may be united in one ownership, or be held as co-tenants, and this interest cannot be taken for public use without making just compensation to the owner thereof. ’ ’
Upon the retrial the instruction above quoted should be modified to conform with the holding in the Rankin Case, limiting consideration, however, to such uses as may -be reasonably expected in the immediate future.
The judgment is reversed, and a new trial granted, with costs to defendants.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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77
] |
Potter, J.
Plaintiff, owner of the east 100 feet of the lands and premises situated in the city of Lansing and described as commencing 80% feet north of the southeast corner of block D subdivision of blocks 26 and 27 of the city of Lansing, thence west 180 feet, thence north 78 feet, thence east 180 feet, thence south 78 feet to the place of beginning, filed a bill against defendants to cancel and annul the easement and to remove the building restrictions hereinafter more particularly described. Prom a decree for defendants, plaintiff appeals.
Both plaintiff and defendants claim title from R. J. Perry and Margaret G-. Perry, husband and wife, who in 1923 owned all of the lands above described. January, 1923, R. J. Perry and Margaret G-. Perry his wife, sold to Grace D. Renker the west 80 feet of the lands above described. The deed given by them to her provided:
“First parties furthermore expressly grant, bargain, and convey to second party, her heirs, executors, administrators, grantees and assigns forever, an easement or right of way for driveway purposes and the uninterrupted use thereof as a means of ingress and egress to the above-described premises, said easement to run with the land herein deeded, and being specifically described as: Eight feet in width off the south side of the premises still owned and retained by first parties, and described as commencing 80% feet north of the southeast corner of block D, of the subdivision of blocks 26 and 27 on the west line of Chestnut street, thence west 100 feet, thence north 78 feet, thence east 100 feet, thence south to place of beginning.
“It is expressly agreed by second party for herself, her heirs, grantees and assigns, that the operation by first parties, on the premises immediately north of said above described, of the present rug factory thereon, shall not be cause for complaint upon the part of the second party, during the incumbency of first parties so long as there shall be no interference with the use of the above-described easement to second party, her heirs, assigns and grantees. Said first parties further agree for themselves, their heirs, grantees and assigns, as a condition to the sale of the premises herein deeded to second party, that after the rug factory, which is now owned and operated by first parties on the premises retained and owned by them and being immediately to the north of said above described easement, is no longer used by first parties for business in connection with a rug factory, that there after no building nor structure shall be used, built or maintained thereon for any purpose except for a private residence and a private garage either in connection with the residence or built separately therefrom. ’ ’
Soon after that time Grace D. Renter conveyed the premises which she acquired from Perry and wife to Thomas A. Lawler and Agnes Belle Lawler, his wife, by conveyance describing the same easement and building restrictions. Plaintiff claims title by mesne conveyances from R. J. Perry and Margaret G, Perry his wife. Building restrictions constitute reciprocal negative easements. They run with the land. Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Oakman v. Marino, 241 Mich. 591. They are construed most strictly against the grantor and those who claim under him. Austin v. Kirby, 240 Mich. 56; Kelly v. Carpenter, 245 Mich. 406. They are based on contract. Definitions adopted for legislative purposes in housing codes and zoning ordinances cannot be employed in interpreting restrictive covenants running with the land. Seeley v. Phi Sigma Delta House Corp., 245 Mich. 252. The action of the legislative authority of the city, in relation to the restrictions imposed by the zoning ordinance of the city of Lansing, cannot be considered as impairing in any way the building restrictions involved in the deeds in question. To so consider it would be to permit the legislative authority of the city to impair the obligation of the contract entered into between the parties to the conveyance. The restriction is that:
“No building nor structure shall be used, built or maintained thereon for any purpose except for a private residence and a private garage either in connection with the residence or bnilt separately therefrom.”
In building restriction cases involving covenants, the term “private dwelling house” means a building designed as a single dwelling to be used by one family. Schadt v. Brill, supra; Kingston v. Busch, 176 Mich. 566; De Galan v. Barak, 223 Mich. 378; Seeley v. Phi Sigma Delta House Corp., supra.
The restrictions here involved were upon the land retained for the benefit of the land sold. Such restrictions are valid against the covenantor and his grantees. This arises from the very nature of building restrictions as reciprocal negative easements. See, also, 21 A. L. B. 1300, note. Plaintiff is not entitled to have the building restrictions involved removed. The trial court so held. Its decree is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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31
] |
Clark, C. J.
Plaintiff filed this bill chiefly for accounting against Charles F. Ruggles, with whom he had been associated in business at Manistee and elsewhere for many years. Mr. Ruggles died and his administrators were admitted to defend.
A large salt plant at Manistee, known as Ruggles and Rademaker Salt Plant, was perhaps owned by Mr. Ruggles, although there was dispute of that. Into this salt business plaintiff had put more than $300,000, either as a partner, or as an investor, or as a creditor.
Mr. Ruggles owned a timber tract of approximately 50,000 acres in California, called Calaveras Tract. Others were interested with him as investors to whom were given certificates of investment for the respective amounts invested and which provided of return, interest, and profit thereon.
He also owned another large tract of timber in California, known as Amador Tract, in which others were interested on like certificates of investment. Plaintiff was and is a holder in large amount of such certificates of investment in both tracts, the amount varying from time to time in keeping with business dealings between him and Mr. Ruggles.
In 1928, Mr. Buggies organized all three of these enterprises into three corporations, being defendants Buggies & Bademaker Company, Calaveras Timber Company, and Amador Timber Company. Mr. Buggies had another timber holding in South Carolina, in which others were investors, holding like certificates of investment. Some difficulty was encountered in this venture and in consideration of plaintiff’s agreement to repay all such investors, Mr. Buggies turned the property over to him.
Some lands in Minnesota also come into the case, but no facts need be detailed. After this cause had been on. trial for three days, the parties and their respective counsel, in open court, agreed upon a settlement as the basis for a decree, and the trial judge dictated the same into the record:
“1. It is agreed by John H. Bademaker that he will pay off the investors having rights in the Carolina property, as evidenced by investors’ certificates, issued to them, in accordance with the terms and conditions of their investors’ certificates, held by them, and in accordance with the terms of his agreement with Charles F. Buggies, under date of December 31, 1918.
“2. That said John H. Bademaker is to retain his interest in the Buggies & Bademaker copartnership, not as a copartner, but as an individual, which said interest is to be evidenced by investors’ certificates, in form, as used by Charles P. Buggies, in handling timber investments, namely, Amador and Calaveras counties, California; the amount of said certificate to be in the sum of not less than $320,911.93, subject to be adjusted according to fact.
“3. That said John H. Bademaker, to retain his investment in the Amador timber tract, as evidenced by his present certificates of investment, held by him.
“4. That said John H. Eademaker to retain his investment in the Calaveras timber tract, as evidenced by investors’ certificates which he now holds.
“5. Whereas, John H. Eademaker and Charles F. Enggles, have by indorsement and otherwise, become obligated to third parties in connection with their copartnership relations and timber business and otherwise, in a large sum of money, which said obligations are in fact the obligations of the business, and,
“Whereas, by this agreement, said John H. Eademaker is retiring from the firm and will hereafter have nothing whatsoever to do with the conduct of the business,
“Therefore, it is agreed, that the aforesaid obligations of indebtedness shall be treated and considered as between the parties, John H. Eademaker and Charles F. Euggles, to be the primary obligation of Charles F. Euggles, and the obligation so far as third parties are concerned shall not be changed except by renewal and so far as the parties hereto are concerned are to be the obligation of surety only for Charles F. Euggles, it being the intention of the parties that as between Euggles and Eademaker, said obligations are to be the obligations of Charles F. Euggles; and that John H. Eademaker shall renew said obligations as may be required not exceeding present amount until paid.
“6. That John H. Eademaker, upon refunding of his actual investment in the cut-over lands in Minnesota and elsewhere, is to quitclaim his interest therein to Charles F. Euggles.
“7. That John H. Eademaker will immediately quitclaim his interests to Charles F. Euggles in all tax lands acquired by him, through purchase with money furnished by Charles F. Euggles.
“8. It is further agreed that upon the consummation of this settlement, that said John H. Eademaker will immediately relinquish any and all interests, of whatsoever name or nature which he may now have, as copartner or otherwise, in the business of Charles F. Ruggles, by proper instrument of relinquishment, and that he will join, if necessary, in the filing of a certificate of dissolution of the copartnership of Ruggles & Rademaker, now existing, by virtue of a certificate of copartnership, now on file in the office of the county clerk of the county of Manistee, Manistee, Michigan.
“9. It is further agreed that John H. Rademaker shall quitclaim whatever interest he may have in Minnesota lands, designated as group 5, not contemplated by the Minnesota lands mentioned in paragraph 6 of this agreement.
“10. That John H. Rademaker will deed, by quitclaim deed, to Charles F. Ruggles, an undivided one-half interest in lands designated as Minnesota lands, group 4, not previously sold.
“11. It is further agreed that upon the consummation of this settlement of differences that neither of the parties hereto will by word, act or deed, disparage or embarrass the other in any manner whatsoever, and that they will accord to each other an interchange of favor commensurate with good conduct and fair dealing, to the end that the books of either or both parties will be available to one an-' other, as occasion and necessity may require, in the prosecution of their individual business hereafter.
“12. It is further agreed, that a decree of' this court will be made, by consent, to effectuate this agreement on the application of either party.
“13. It is further agreed that this suit shall be satisfactorily terminated, without costs to either party.
“14. It is agreed by the. parties hereto, that this court shall retain jurisdiction of this case to effectuate this agreement by decree and to settle such decree order from time to time as may be necessary until the final- consummation hereof and then final decree will be entered.
“Mr. Harrington: I think we all are agreed to the extent' that the statement which the court has made upon the record goes, but there are minor details here which must be worked out by counsel and all those matters we intend shall be submitted to the court.
“The Court: It is my thought, and I think it is the consensus of counsel that the minor details will have to be worked out by counsel, as between gentlemen, to a large extent, and in event you are at a disagreement, you may come in and settle the same before me.
“Mr. Campbell: That is agreeable to us.
“Mr. Harrington: That is agreeable to us.”
Upon settlement of a decree, testimony was taken. The trial judge declined the decree tendered by plaintiff, and signed that tendered by defendants. Plaintiff has appealed, and the question is whether the decree conforms substantially to the agreement of the parties. The recognition of counsel that minor details for decree were left for future adjustment does not permit departure in principle from the agreement itself.
Paragraph 1. In addition to plaintiff’s undertaking under the agreement, the decree requires him to give semi-annual reports to Mr. Ruggles until all investors are paid. This is beyond the agreement. As this cause must remain in the trial court until finally disposed of by full compliance with the decree or otherwise, and as others beside the parties here are interested, it is suggested to counsel for their approval that report or reports of payment of such investors should be filed in. court, and there established in fact, and there should be like procedure in like situations where Mr. Ruggles or his estate is obligated by decree to pay creditors.
Paragraph 2. Plaintiff’s investment in the salt ‘business is permitted to stand as fixed by decree at $330,366.05. There is a recital of the amount of Mr. Ruggles’ investment in this business," but it ap-' pears harmless.
Paragraph 4. The agreement provides that plaintiff shall “retain his investment in Calaveras Timber Tract as evidenced by investors’ certificates which he now holds.” The amount of his investment so evidenced by the certificates is $241,518.13. The decree entered reduces this investment by an item of $40,074.67, withdrawn from Calaveras and invested in the salt business. It also finds by accounting a balance due Ruggles from plaintiff on personal account or accounts of $34,493.05, and this, too, is taken from plaintiff’s investment, so that his investment in Calaveras is reduced by $74,567.72 to the sum of $166,950.41. This is flatly contrary to the plain language of the agreement, and is eliminated. This paragraph of decree should be simply paragraph four of the agreement, with recital of the amount of the investment as $241,518.13. Justification urged for part of the proposed reduction is an agreement between plaintiff and Mr. Ruggles of September and October, 1928. But that agreement is attacked by plaintiff, and the decree should follow, not that agreement, but the settlement agreement made in court.
Complaint is made of nearly every other paragraph of the decree, but we are not impressed thereby. However, counsel have leave to present such matter, if they so desire, upon settlement of decree in this court. So modified, the decree is affirmed, and cause remanded, with costs to appellant.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff, while an employee of the defendant, sustained a. compensable injury. From an award of double compensation defendant has appealed. The sole question presented is whether plaintiff is entitled to single or double compensation.
When plaintiff applied to defendant for employment she was required to answer in writing a number of questions contained in a printed form used by defendant.' In part it reads:
“Pull name: Luva .Marguerite Boshaw. Nationality: American. Street and No.: 1035 G-illett St. City: Port Huron. State: Michigan. Phone: 3889. Age: 18. Born Mo., August; Day, 7; Year, 1911. Married or single: Single. Height: 5 feet 3. Weight: 125.”
Plaintiff’s statement in the above-quoted application that she was ,18 years of age was false. She was then only 15 years of age. The application from which the quotation is taken was so prepared that it was supposed to be signed by the applicant. While plaintiff wrote in the respective answers, she did not sign her name at the conclusion. Instead, the manager of defendant’s store, Mr. P. Mathewson, signed his name to plaintiff’s application.
The issue presented is whether an employer, who, acting in good faith, is deceived by a deliberate false statement as to the age of a minor applicant for work and in consequence thereof enters into a contract of employment which if knowingly made would have rendered the employment illegal, can be compelled to pay double compensation in the event the minor sustains a compensable injury while so employed. The employer here is not charged with bad faith or even with failure to exercise reasonable care to ascertain the age of plaintiff when she was employed. But plaintiff asserts defendant is liable for double compensation under the statute, which provides:
“It shall be the duty of * * * any person coming within the provisions of this act to keep a register in which will be recorded the name, birthplace, age, and place of residence of every person employed under the age of eighteen years and it shall be unlawful for any such establishment or person to hire or employ * * * any child under the age of eighteen years without there is first provided and placed on file in the business office thereof a permit or certificate. * * * Every employer complying with the provisions of this section shall be at liberty to employ the person so presenting the permit or certificate hereinbefore referred to, and is justified in considering and treating such person as of the age shown in such permit or certificate and shall not be liable, if it transpire that such person is under the age represented in such permit or certificate, to any greater extent than such employer would be liable if such person were of the age represented.” 2 Comp. Laws 1929, § 8325.
“Provided, That any minor under eighteen years of age whose employment at the time of injury shall be shown to be illegal shall, in the absence of fraudulent use of permits or certificates of age, in which case only single compensation shall be paid, receive compensation double that provided elsewhere in this act.” 2 Comp. Laws 1929, § 8413.
Because plaintiff misrepresented her age, defendant did not obtain the permit or certificate required by the statute. Had plaintiff been 18 years of age, as she represented, defendant would have been under no obligation to obtain such permit or certificate. By plaintiff’s deceit defendant was tricked into an apparent violation of the statute'; and in consequence thereof plaintiff is now asking that she be awarded double compensation instead of single compensation. The injustice of such a claim is so obvious that it should not be sustained unless necessitated by the statutory provisions. While the instant case is not literally covered thereby, it is of interest to note that the statute expressly provides that an employee who makes “fraudulent use of permits or certificates of age” shall not be awarded double compensation (section 8413). We think this provision of the statute clearly indicates an intent on the part of the legislature to protect an employer from a double award of compensation, if, without his fault, he is deceived by the minor applicant as to his age. In Ganga v. Ford Motor Co., 250 Mich. 247, Justice Butzel said:
“It further provides that minors under 18 years of age shall be entitled to double the amount of the compensation provided for, unless they have secured the employment fraudulently, in which event they shall receive only single compensation.”
See Justice Potter's opinion in Thomas v. Morton Salt Co., 253 Mich. 613, 624.
While in Federal decisions there seems to be a trend to the contrary (see Minneapolis, etc., R. Co. v. Rock, 279 U. S. 410 [49 Sup. Ct. 363]); the weight of authority in State courts sustains the right of an employee to compensation notwithstanding he secured the employment through fraud or misrepresentation as to his physical condition, former discharge, age, etc. Denver, etc., R. Co. v. Reiter, 47 Colo. 417 (107 Pac. 1100); Plick v. Toye Bros. Auto & Taxicab Co., 13 La. App. 525 (127 South. 59); Matlock v. Railway Co., 198 Mo. 495 (95 S. W. 849, 115 Am. St. Rep. 481); Havey, Admr., v. Railroad Co., 87 N. J. Law, 444 (95 Atl. 124); Kenny v. Railway Co., 166 App. Div. 497 (152 N. Y. Supp. 117); Darnley v. Railway Co., 14 B. C. R. 15. Contra, see St. Louis, etc., R. Co. v. Brantley, 168 Ala. 579 (53 South. 305). This view adhered to by the weight of authority is evidently the outgrowth of a liberal interpretation of compensation acts, and seems to be sound, for the reason that, notwithstanding the deceit of the employee, still it may be said the employer knew he had the particular employee in his service, and both parties knowingly contracted with reference to the compensation law. Further, in some cases it is noted that the misrepresentation was not the cause of the accident in consequence of which compensation was sought. See Plick v. Toye Bros. Auto & Taxicab Co., supra. Our recent decision in Ganga v. Ford Motor Co., supra, is in accord with the prevailing authorities above cited. But in so holding, it would seem that this court, as well as the courts of other jurisdictions, has reached the limit of liberality, and to go further would be to put a premium on dishonesty.
In the instant case, defendant knew plaintiff was its employee, and that both were subject to the compensation act. If the employee suffered a compensable injury both knew she would be entitled to compensation. But defendant' did not know nor have any reason to suspect that in the event of such injury it would be liable for double compensation, and such a claim could not have been asserted except for plaintiff’s fraud and deceit. It is fair to assume that, because of plaintiff’s false statement in regard to her age, defendant understood there was no occasion for its securing the permit or certificate required by the statute when minors under 18 years of age are employed. It is this circumstance alone and of which defendant had no knowledge that enables plaintiff to assert her claim for double compensation. A more glaring attempt by a wrongdoer to profit by the wrong' perpetrated is difficult to conceive; and courts cannot give such misconduct their stamp of approval. In Patterson v. Kasper, 182 Mich. 281 (L. R. A. 1915A, 1221), we quoted with approval from Shaw v. Coffin, 58 Me. 254 (4 Am. Rep. 290), the following:
“It would be' a reproach to the law, if a minor, when arrived to years of manhood, were to be allowed to escape from the payment of what is due, by the plea that he had stolen the money demanded of him when under age.”
A minor is liable to one whose property he has obtained by false representation. Patterson v. Kasper, supra. If such is the law, it would be little short of judicial somnambulism to hold that plaintiff, in consequence of her alleged illegal employment, procured solely by her own fraud and deceit, could recover double compensation from the one upon whom she perpetrated the fraud. To be consistent, the court, in following the Patterson Case, would necessarily hold that money which the minor employee thus fraudulently obtained in turn could be recovered from the minor in an action by the employer.
We have repeatedly held the rights of the respective parties under the workmen’s compensation law are fundamentally based upon the contract of employment. The compensation act recognizes the ability of minors to enter into employment contracts. 2 Comp. Laws 1929, § 8413. In the case at bar the only contract of employment was one in which defendant hired a minor past 18 years of age. Incident to such a contract, no double liability is provided in the statute. Plaintiff ought not to be awarded double compensation on the basis of a contract she did not make; especially since her own false representation as to her age resulted in defendant not complying with the statutory provisions which would have saved it from double liability in the event of a compensatory injury to plaintiff.
The controlling factor here is that plaintiff’s fraud and deceit was the sole cause from which arose the condition in consequence of which she now asserts a right to double compensation, and this condition was at all times unknown to her employer until after the accident occurred. The relationship of employer and employee was not affected by the fact that the employment was obtained by misrepresentation. Ganga v. Ford Motor Co., supra. This is true, because, notwithstanding the misrepresentation, the fact of employment was known to both parties. The status of employer and employee existed. It follows that the plaintiff in the instant case as an employee is entitled to single compensation. But the defendant employer did not know of a contingent double liability to plaintiff and except for the fraud she perpetrated it could not have been charged with such liability. Her fraud must be held to estop her from profiting thereby.
In holding that plaintiff was not estopped by her misrepresentation as to her age and in awarding her double compensation notwithstanding such misrepresentation, the commission relied upon Syneszewski v. Schmidt, 153 Mich. 438; Braasch v. Michigan Stove Co., 153 Mich. 652 (20 L. R. A. [N. S.] 500); and Grand Rapids Trust Co. v. Petersen Beverage Co., 219 Mich. 208. And in appellee’s brief it is insisted that these cases control this phase of the instant case. The syllabus from Syneszewski v. Schmidt, supra, which indicates the holding in each of the three cases, reads:
“Where defendant employed plaintiff, under 16, without obtaining the sworn statement of parent or guardian required by the statute, Act No. 113, Pub. Acts 1901, as amended, he was not relieved from liability for injury to plaintiff during the employment by the fact that plaintiff told him he was over 16 and he accepted the statement in good faith.”
In fairness, it should be stated that at first blush the above-noted decisions seem applicable and controlling but a more careful consideration of the reason underlying these eases reveals their inapplicability. Each of them is a common-law action in tort, and the right of recovery was based wholly upon the statute. Act No. 113, Pub. Acts 1901, amended by Act No. 171, Pub. Acts 1905. The statutory enactment is an exercise of the police power of the State, and aimed at protecting minors by prohibiting their employment when under the age of 14 years in manufacturing plants; and also by prohibiting the employment of minors under 16 years of age in dangerous occupations. Violations of these provisions by the employer were held to_ give rise to a common-law tort action on the part of the injured minor. But the workmen’s compensation act is an entire departure from the common law in so far as it pertains to the rights and duties of employer and employee. Oleszek v. Ford Motor Co., 217 Mich. 318. And what is more important, the rights and duties of the respective parties under the compensation act arise out of and are incident to the contract of employment. Crane v. Leonard, Crossette & Riley, 214 Mich. 218 (18 A. L. R. 285, 20 N. C. C. A. 621); Wood v. Vroman, 215 Mich. 449. In other words, they are contractual in nature, and plaintiff is here asserting her right for double compensation because of her contract of employment with defendant. Hence, if the other essential elements of estoppel are present there is no reason why one of the parties to the contract should not be es-topped from taking advantage of a fraud perpetrated oh the other party incident to procuring the contractual relation. This could not be true in a common-law tort action brought in consequence of the violation of the statute mentioned (Act No. 113, Pub. Acts 1901, as amended) without entirely defeating the purpose of the statute. The holding of the three cases noted is not applicable to the contractual relation arising in the instant case under the compensation act. On the contrary, and for the reasons noted, we hold plaintiff is estopped by her own fraud from being awarded double compensation.
The case is remanded to the department of labor and industry, with direction to enter the award in accordance herewith. Appellant will have costs of this court.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Per Curiam.
Plaintiff appeals as of right from an order of summary judgment dismissing her complaint against the City of Detroit for improper layoff.
The facts in this case are not in dispute. Plaintiff was first hired by the city in 1974 in the data processing department. In November of 1980, she received a notice informing her that she would be laid off from her job as a keypunch operator (KPO) in favor of an employee with greater seniority who had lost her job when the city closed Detroit General Hospital in October of 1980. Plaintiff was immediately placed on a city-wide "blocking” list which entitled her to any KPO opening in the city prior to the position’s being filled through promotion or by new hire. In 1982, plaintiff accepted a KPO position in the water department.
Plaintiff filed this action in circuit court on October 5, 1982, raising three claims. Plaintiff first alleged that the city had violated the terms of a collective-bargaining agreement with her union by subcontracting out data processing work during her layoff. She further alleged that the city had violated those provisions of the Comprehensive Employment and Training Act (CETA), 29 USC 801 et seq., repealed by Pub L No. 97-300, Title I, § 184(a)(1), 96 Stat 1357 (1982), which prohibited public employees from being displaced by CETA workers. Finally, plaintiff relied upon 42 USC 1983 and alleged that she had been laid off in violation of her First Amendment rights to free speech and to petition the government for redress of grievances. Throughout her employment, plaintiff had protested in various forums the city’s practice of subcontracting out data processing work.
The city filed a motion for summary judgment under both GCR 1963, 117.2(1) and GCR 1963, 117.2(3), raising several defenses. The trial court heard oral arguments and granted the city’s motion "in its entirety”. We note with dismay the trial court’s refusal to articulate upon plaintiffs request the specific reasons for dismissing her complaint. Where a motion to dismiss is brought under different court rules and raises various legal theories, the trial court should identify the grounds relied upon in granting dismissal. On appeal in this case, we will consider each of the plaintiff’s three claims and determine whether summary judgment was appropriately granted under either GCR 1963, 117.2(1) or GCR 1963, 117.2(3) or whether the case was properly dismissed under some other court rule.
We affirm the trial court’s dismissal of plaintiffs claim that the city had violated the collective-bargaining agreement. Immediately following her layoff, plaintiff utilized the collectively bargained for grievance procedures and arbitrated the issue of "Whether or not the City violated the Master Agreement when it laid off the grievant on November 7, 1980”. The arbitrator held that the city had the right to subcontract out data processing work while employees were laid off according to the terms of the master agreement and denied the petitioner’s grievance. In her circuit court action, plaintiff neither challenges the arbitrability of the subcontracting issue nor does she contend that the arbitrator exceeded her authority in resolving the subcontracting issue. City of Saginaw v Saginaw Firefighters Ass’n, Local 422, IAFF, AFL-CIO, 130 Mich App 401; 343 NW2d 571 (1983). We find the arbitration decision in this case binding on the issue of whether the city had violated the collective-bargaining agreement in subcontracting out data processing work during the plaintiffs layoff. Plaintiff is thus barred from relitigating this claim in an independent circuit court action and accelerated judgment should have been granted under GCR 1963, 116.1(5).
Plaintiffs claim that the city violated certain provisions of CETA is not actionable and that portion of her complaint was properly dismissed under GCR 1963, 117.2(1). CETA does not create a private cause of action against a prime sponsor or any other recipient of CETA funds. Uniformed Firefighters Ass’n, Local 94, IAFF, AFL-CIO v City of New York, 676 F2d 20 (CA 2, 1982); CETA Workers’ Organizing Committee v City of New York, 617 F2d 926, 934 (CA 2, 1980). Plaintiffs sole remedy in challenging the city’s compliance with CETA is the exclusive administrative remedy provided under the act, subject to judicial review. Id.
Given our resolution of the first two issues, we conclude that plaintiffs claim under 42 USC 1983 must also fail. Essentially, plaintiffs claim is that the city improperly laid her off in retaliation for the exercise of her First Amendment rights to free speech and to petition the government for redress of grievances. Plaintiffs constitutional claim thus rises or falls on the finding that her layoff was improper because it was in violation of the collective-bargaining agreement or in violation of CETA.
The city’s right to lay plaintiff off while subcon tracting out data processing work has already been decided through arbitration and that decision is binding on this Court. Plaintiffs layoff was not improper under the terms of the collective-bargaining agreement.
Additionally, plaintiff failed to pursue her administrative remedy regarding her CETA claims. Where there is an elaborate and exclusive administrative remedy for the enforcement of a federal right, a § 1983 lawsuit may not be used to substitute for or circumvent that administrative remedy. Pennhurst State School & Hospital v Halderman, 451 US 1, 28; 101 S Ct 1531; 67 L Ed 2d 694 (1981); Middlesex County Sewerage Authority v National Sea Clammers Ass’n, 453 US 1, 19-21; 101 S Ct 2615; 69 L Ed 2d 435 (1981).
We conclude that no factual development could support a finding that plaintiff was improperly laid off in retaliation for the exercise of her First Amendment rights. We therefore find that plaintiffs § 1983 claim was properly dismissed under GCR 1963, 117.2(3) on the collective-bargaining agreement issue and under GCR 1963, 116.1(5) on the CETA issue.
Affirmed.
On at least two occasions since 1979, plaintiff had appeared before the Detroit City Council protesting the city’s practice of subcontracting out data processing work. Apparently, council investigated the allegation and ordered a report on the subject.
Plaintiff does not allege that either the layoff mechanism or the CETA program were manipulated in an attempt to ensure plaintiff’s layoff. | [
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M. J. Kelly, J.
Defendant Lansing General Hospital appeals as of right from a $1,000,000 jury verdict in favor of plaintiffs. We affirm.
Gene Christopher Schneider was admitted to Lansing General Hospital at the age of seven years for the performance of a tonsilectomy and a bilateral tympanotomy. The surgery occurred on June 16, 1978. Anesthetization was performed by Jana Palmer, a certified registered nurse anesthetist, and Dr. Jack Gilmore, anesthesiologist, both of whom were employed by Capital Anesthesiologist, P.C. Dr. Gerald Gilroy performed the bilateral tympanotomy and Dr. David Schiamanna was the decedent’s pediatrician during post-operative care.
During the bilateral tympanotomy, decedent suffered a cardiac arrest and only after extensive resuscitative efforts did his heartbeat and breath ing return. The decedent was taken from the operating room to the intensive care unit where he remained unconscious, experiencing a second cardiac arrest on June 17, 1978. Decedent was maintained on a respirator over the next six days, but his condition continued to deteriorate. On June 22, 1978, an electroencephalogram revealed no brain wave activity and he was taken off the respirator. The pathologist diagonosed anesthetic death.
Plaintiffs commenced this wrongful death action in the Ingham County Circuit Court alleging various acts and omissions of malpractice against the hospital and the medical personnel involved. Of particular relevance to this appeal are plaintiff’s charges of negligence against Dr. Gilmore and Nurse Palmer for (1) anesthetic overdose, (2) inadequate monitoring, particularly failure to have an anesthesiologist present in the operating room at all times and failure to use a precordial stethescope, and (3) failure to employ certain standard resuscitative techniques. Plaintiffs’ charges against the hospital included (1) failure to establish and enforce adequate standards for the administration of anesthesia in its operating rooms, (2) failure to establish adequate emergency protocol, (3) failure to advise the decedent’s parents that a nurse anesthetist rather than an anesthesiologist would be present throughout the surgery, and (4) failure to establish and enforce adequate standards for intensive care treatment.
Prior to trial, plaintiffs entered into settlement and release agreements with Nurse Palmer and Dr. Gilmore. Drs. Mahoney and Wirt and Capital Anesthesiologists, P.C. were dismissed on grounds not relevant to this appeal. Plaintiffs proceeded to trial in April of 1983 against the hospital and Drs. Gilroy and Schiamanna. The jury returned its verdict against the hospital only, finding no cause of action against the two physicians. On June 2, 1983, by an order of judgment on the verdict, the trial court reduced the amount of the jury verdict to $742,261, adjusting for the setoff in the amount plaintiffs had received from settlements with Palmer and Gilmore.
On appeal, defendant first argues that the jury was improperly allowed to consider the negligent acts of Nurse Palmer in determining the hospital’s liability for Gene Christopher Schneider’s death. Defendant raised this issue below by way of a motion to strike allegations from the complaint rather than by way of a motion for accelerated judgment and/or by way of a motion in limine as to evidence of Palmer’s acts. At the conclusion of the hearing on defendant’s motion, the trial court ruled:
"The case law seems to indicate that’s the situation, but it seems to me great pains were taken in this particular instance to attempt to avoid the obvious effect of the law, so it’s difficult to fault the plaintiffs when they took care to avoid the pitfalls, by their actions, in preparing this release and the petition in court here, so I think that my first suggestion is the one that I prefer to adopt, proceed to trial and then let the Court determine whether or not, from the facts, there is, in fact, any independent acts of negligence on the part of the other defendants that will put them in the category of a joint tortfeasor, as opposed to a master-servant, and if there are, that we submit that to the jury on a separate and special verdict that they find specifically regarding these defendants as they apply to the acts, or lack of acts, on the part of Jana Palmer. Okay.”
Defendant now appeals from this ruling.
Defendant correctly argues that where a master or principal does not actively participate in the negligent conduct of the servant or agent, and the master or principal’s liability is based solely on the doctrine of respondeat superior, the master or principal and servant or agent are not joint tortfeasors, Geib v Slater, 320 Mich 316, 321; 31 NW2d 65 (1948), overruled on other grounds in Moore v Palmer, 350 Mich 363, 394; 86 NW2d 585, 597 (1957); Willis v Total Health Care of Detroit, 125 Mich App 612, 617; 337 NW2d 20 (1983), and a valid release of either operates to release the other. Drinkard v William J Pulte, Inc, 48 Mich App 67, 76-78; 210 NW2d 137 (1973); Ravenis v Detroit General Hospital, 63 Mich App 79, 84; 234 NW2d 411 (1975), lv den 395 Mich 824 (1976); Willis v Total Health Care, supra. It is also true, however, that where the master or principal engages in some independent or concurrent act of negligence, or the master and servant are joint tortfeasors, a release of the servant will not operate to release the master from liability for his or her independent or concurrent negligent acts. Witucke v Presque Isle Bank, 68 Mich App 599, 610-611; 243 NW2d 907 (1976), lv den 397 Mich 842 (1976); Drinkard v William J Pulte, Inc, supra; Willis v Total Health Care, supra.
The trial court in this case properly determined that the release of Nurse Palmer and Dr. Gilmore released the hospital from any liability based on a theory of respondeat superior. The court also properly determined that the language of the two releases did not protect the hospital from liability for its independent and concurrent acts of negligence. The critical issue here, however, and one not addressed in the cases cited supra, is an evidentiary one. Defendant argues that the trial court should have barred the introduction of any evidence regarding the acts of Nurse Palmer and Dr. Gilmore. The trial court disagreed on the ground that striking all reference at trial to the acts and/ or omissions of Nurse Palmer and Dr. Gilmore would confuse the jury with an incomplete presentation of the events leading up to the decedent’s death. The trial court thus admitted the evidence for the purpose of proving independent acts of negligence on the part of the hospital. The trial court opined that a jury verdict against the hospital based on the negligence of Nurse Palmer or Dr. Gilmore could be avoided by use of special verdicts. The defendant, however, rejected the court’s recommendation and did not request the use of special verdicts at the close of proofs. We are thus not able to ascertain from the verdict whether any portion of the $1,000,000 award reflects compensation for the alleged negligence of Nurse Palmer or Dr. Gilmore.
We find no abuse of discretion in the trial court’s treatment of the evidentiary implications of defendant’s motion to strike. Plaintiffs claim that the hospital had engaged in independent acts of negligence by failing to establish surgical procedures and protocol to provide for the proper administration of anesthesia, failure to require the presence of an anesthesiologist in the operating room during surgery, and failure to establish procedures and protocol for coordinating emergency situations arising during surgery. Under each of these claims, plaintiffs were required to show not only the lack of appropriate procedures and protocol, but also a causal relationship between the omission of such hospital policies and the decedent’s death. The acts of Nurse Palmer and Dr. Gilmore are thus critical to the ability of plaintiffs to prove their independent claims against the hospital. We note, for example, that it would have been possible for the jury to determine that Nurse Palmer, given her limited training, was not negligent in failing to use a precordial stethescope but that the hospital was negligent for not requiring the use of one. Because of the inseparable and factually complex proofs offered at trial and given the availability of special verdicts, we find that the trial court was correct in allowing plaintiffs to introduce evidence regarding the acts of Nurse Palmer and Dr. Gilmore.
In its brief on appeal, defendant asserts several other errors in an attempt to establish that the jury verdict should be reversed. None of these issues have been preserved for appellate review and because we find that manifest injustice will not result in the absence of review, we decline to consider them here. Argenta v Shahan, 135 Mich App 477, 483; 354 NW2d 796 (1984).
Defendant next argues that the trial court improperly computed the amount of the setoff to be applied against the $1,000,000 jury verdict. According to the settlement and release agreements contained in the record, Nurse Palmer had entered into an agreement with the plaintiffs in the amount of $85,000. Dr. Gilmore settled for $172,739, which included the purchase price of annuities obtained for the benefit of plaintiffs. Defendant argues that the amount of the setoff should be based on the settlement’s present value to plaintiffs. The trial court, however, computed the amount of setoff based on the actual dollars paid out by or on behalf of Dr. Gilmore for settlement purposes.
MCL 600.2925d(b); MSA 27A.2925(4)(b) provides:
"When a release or a convenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:
"(b) It reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater.”
Under the statute, we find that the trial court properly computed the amount of setoff to be applied against the $1,000,000 jury verdict. $172,-739 is "the amount of the consideration paid” by Dr. Gilmore on behalf of the plaintiffs in return for their agreement to release him from any further claims. Defendant’s reliance on cases dealing solely with the discounting of damages for future loss are inapplicable.
Finally, defendant argues that the trial court erred in refusing to set aside plaintiffs’ taxed bill of costs and in refusing to allow defendant the opportunity to present its objections. Plaintiffs timely filed a bill of costs with the clerk of the circuit court on June 14, 1983. Plaintiffs then served the taxed bill of costs on defendant, accompanied by a notice of hearing scheduled for July 13, 1983. The clerk of the court, however, entered plaintiffs’ taxed bill of costs on June 29, 1983. Defendant moved to have the trial court set aside the bill of costs but the trial court denied the motion, holding that defendant had received proper notice from the clerk stating when the bill of costs would be entered. The trial court concluded that defendant’s failure to submit its objections prior to entry waived its right to challenge the costs at a later time. We agree.
The question here is whether defendant’s reliance on plaintiffs’ notice of a hearing scheduled for July 13, 1983, excuses its failure to timely object to the proposed bill of costs. At the hearing on defendant’s motion to set aside, plaintiffs’ attorney explained that the purpose in scheduling a hearing for July 13, 1983, was in the event defendant timely objected to the bill of costs. There is no dispute but that defendant failed to timely file its objections under GCR 1963, 526.10(3), thus eliminating the need for the July 13, 1983, hearing. The trial court’s decision was correct as a matter of law and we find no equitites compelling a different result. We expect that attorneys will be familiar with the Michigan General Court Rules and we cannot reasonably find that the scheduling of a hearing in anticipation of objections being filed eliminates the opposing party’s obligation to object. As the trial court noted, if plaintiffs had failed timely to file their taxed bill of costs, their right to collect costs would have similarly been waived.
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Danhof, C.J.
Respondent, the Commissioner of Insurance, appeals as of right from an order of the lower court holding that respondent erred in finding that the remedy of rescission was not available to petitioner and that respondent was unauthorized to reinstate the rescinded policies of insurance. Respondent held an administrative hearing and ordered petitioner to reinstate two automobile insurance policies. Petitioner appealed this decision to the circuit court. We agree with the lower court’s decision and affirm. The policies involved two different families, the Darnells and the Fantis.
Mrs. Darnell applied for insurance on behalf of her husband on April 1, 1980. At that time she did not have a valid driver’s license. A binder was issued immediately. Petitioner received a copy of the husband’s driving record on April 11 and a no-fault automobile insurance policy was issued to him with full knowledge of his driving record on April 14. On the same day the petitioner was notified that Mr. Darnell had been seriously injured on April 12 when an auto struck him from behind while hand pushing a co-worker’s auto.
Mr. Darnell’s license expired on April 20, as he was hospitalized and unable to renew it. Petitioner sent notice that the policy would be cancelled for the reason that there was no licensed driver in the household. An agreement was reached that the policy would be valid if Mrs. Darnell had a license and she provided petitioner with a copy of it.
Around May 1, petitioner learned that Mrs. Darnell’s license was suspended for failure to respond to a speeding ticket issued on January 13, 1977. On May 12, 1980, petitioner sent notice that the policy was being rescinded ab initio on the basis of Mrs. Darnell’s misrepresentations of her own record.
As to the Fanti transaction, Mr. Fanti applied for no-fault insurance on June 6, 1980, and a binder was issued that day. On June 11, Mr. Fanti was involved in an accident as a passenger in his car. The accident resulted in damages to a fence as well as his own automobile.
Mr. Fanti’s policy was processed and approved on June 13. On June 16, he was authorized to have repairs done on his car. Petitioner recieved Mr. Fanti’s driving record on June 20, 1980, and three days later informed him that his policy was being rescinded ab initio based upon his misrepresentation of his driving record.
On appeal respondent contends that a Michigan insurer may no longer rescind ab initio on the grounds of material misrepresentation and that rescission is not appropriate when the misrepresentation has no relationship to the risk of injury which actually occurred. Respondent additionally claims that she has the power to order reinstatement of an insurance policy under these circumstances.
Respondent’s argument that Michigan insurers may not rescind an insurance policy has already been decided contrary to her contentions. Recent decisions of this Court have held that an insurer may rescind an insurance policy and declare it void ab initio where such policy was procured through the insured’s intentional misrepresentation of a material fact in the application for insurance. Cunningham v Citizens Ins Co of America, 133 Mich App 471; 350 NW2d 283 (1984); United Security Ins Co v Comm’r of Ins, 133 Mich App 38; 348 NW2d 34 (1984). The Cunningham Court specifically disavowed the language in State Farm Mutual Automobile Ins Co v Kurylowicz, 67 Mich App 568; 242 NW2d 530 (1976), to the effect that a policy of no-fault insurance becomes absolute once an injury arises; and, in United Security, supra, this proposition was rejected because the cases in which it had previously been endorsed involved innocent third-party claimants. The public policy considerations present where an innocent third party must bear the risk of an intentional misrepresentation by the insured are not present where, as is here asserted, the person seeking to collect no-fault benefits is the same person who procured the policy of insurance through fraud. For the same reason, we reject respondent’s contentions in this regard.
We next turn to respondent’s other basis for disallowing rescission in the instant case, namely, that where an insured is injured and his driving record and driving behavior have nothing to do with the accident which occasioned his injury, the insurance company should not be allowed to void the policy of insurance ab initio. This is equivalent to an assertion that the misrepresentation was not material. Rescission, however, does not depend on the "cause” of the injury. Rather, we must view the misrepresentation as it relates to the procurement of the policy of insurance. Quoting from 29 Am Jur, Insurance, § 525, the Supreme Court in Keys v Pace, 358 Mich 74, 82; 99 NW2d 547 (1959), noted that:
" '[t]he generally accepted test for determining the materiality of a fact or matter as to which a representation is made to the insurer by an applicant for insurance is to be found in the answer to the question whether reasonably careful and intelligent underwriters would have regarded the fact or matter, communicated at the time of effecting the insurance, as substantially increasing the chances of loss insured against so as to bring about a rejection of the risk or the charging of an increased premium. ’ (Emphasis supplied.)”[ ]_
Accordingly, we reject respondent’s argument that the misrepresentation must causally relate to the injury or loss.
Next, respondent contends that she has the right to order reinstatement of an insurance policy terminated in violation of Chapter 32 of the Insurance Code. While we do not disagree with this statement under appropriate circumstances, we do not believe the instant case presents such circumstances.
We note that in her final decision, the Insurance Commissioner made a finding that petitioner had not violated the unfair trade practice prohibitions of MCL 500.2006; MSA 24.12006 and MCL 500.2026; MSA 24.12026, but that petitioner had violated Chapter 32 of the Insurance Code, so that reinstatement for such violation was appropriate under MCL 500.3244; MSA 24.13244.
Section 3244 of the Insurance Code grants authority to the Commissioner of Insurance to order reinstatement of a policy which was cancelled without complying with the provisions of Chapter 32 of the code. However, the case at bar does not present an issue of cancellation; it is a case of rescission. This Court, in Cunningham v Citizens Ins Co, supra, pp 478-480, specifically noted that there exists a distinction between rescission and cancellation, citing Wall v Zynda, 283 Mich 260, 264; 278 NW 66 (1938), and stated that Chapter 32 of the Insurance Code only addressed cancellation, thereby leaving unaffected the remedy of rescission. Consequently, we conclude that Chapter 32 of the Insurance Code grants no authority to respondent to order reinstatement of a rescinded insurance policy.
Respondent further argues that there is an inconsistency to say on the one hand that the rescission was unlawful, but on the other, to allow petitioner to continue to rely on the rescission. We note first, however, that the propriety of the rescission has not been determined. We hold here only that rescission is an available remedy. But, in any event, where a policy is improperly rescinded, the appropriate remedy would be the policy holders’ action against petitioner for recovery of benefits owed to them. An administrative remedy that might be appropriate could be had under the unfair trade practice prohibition found in MCL 500.2006; MSA 24.12006. As noted above, however, respondent specifically found here that no such violation occurred. Thus, whether respondent would be authorized to reinstate a policy where a Chapter 20 violation has been found is not at issue here. Nor is Chapter 32 at issue. For these reasons, we hold that under the circumstances of the instant case respondent was not authorized to reinstate the rescinded policies.
Affirmed.
C. W. Simon, Jr., J., concurred.
In noting this difference in United Security, supra, the Court distinguished the cases of DAIIE v Ayvazian, 62 Mich App 94, 99-100; 233 NW2d 200 (1975); Frankenmuth Mutual Ins Co v Latham, 103 Mich App 66; 302 NW2d 329 (1981), and State Farm Mutual Automobile Ins Co v Kurylowicz, supra, wherein this Court disallowed the insurance companies’ attempts to use the insureds’ misrepresentation to rescind the policy ab initio and avoid liability to other claimants.
We note, however, that in the instant case we are not called upon to address the underlying issue of whether rescission ab initio was warranted under these facts. This issue is more appropriately left to the insureds who wish to pursue the matter so that the actual parties to the policy have a full opportunity to present their positions. Indeed, the Darnells have done such and their appeal is considered by this Court in Darnell v Auto-Owners, 142 Mich App —; — NW2d — (1985). At this juncture, we hold only that rescission is a potential remedy to insurance companies where the above-noted conditions exist.
It is also noteworthy that, with respect to life insurance, a similar inquiry is made. The insurance company must establish a misrepresentation of fact, reliance thereon, and the materiality of the misrepresentation as it relates to the risk accepted by the insurer. Howard v Golden State Mutual Life Ins Co, 60 Mich App 469, 477; 231 NW2d 655 (1975), lv den 395 Mich 762 (1975). Accord, Wickersham v John Hancock Mutual Life Ins Co, 413 Mich 57, 67-70; 318 NW2d 456 (1982). The misrepresentation need not have a causal nexus to the death. We see no reason why automobile insurance should be viewed differently to require a connection between the misrepresentation and the accident. We disagree with respondent’s contention that Wickers-ham involved a statutory provision which related to disability insurance coverage and which authorized rescission without such causal connection in that case, whereas no such provision applies here to authorize petitioner’s actions. The discussion in Keys v Pace, supra, pp 81-83, involving automobile insurance, belies respondent’s assertion that statutory authorization is required. | [
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Per Curiam.
On August 27, 1981, Consolidation Coal Company filed a "petition for refund of sales tax” in the Court of Claims. Plaintiff challenged the constitutionality of § 4a(e) of the General Sales Tax Act, MCL 205.54a(e); MSA 7.525(e), as inter preted by Department of Treasury Rule 81 (1979 AC, R 205.131). Plaintiff moved for summary judgment, pursuant to GCR 1963, 117.2(2) and (3). The Department of Treasury answered and countered with its own motion for summary judgment, pursuant to paragraph (3). On November 23, 1983, plaintiff’s motion was denied and defendant’s was granted. Plaintiff appeals as of right. We affirm.
Plaintiff is a Delaware corporation, with its principal offices located in Pittsburgh, Pennsylvania; it also does business in Michigan. Plaintiff owns and operates a bunker fuel sales facility known as Lime Island Dock, located on Lime Island in Lake Huron close to the Canadian border. On February 11, 1980, defendant issued to plaintiff a "notice of intent to assess” in the amount of $152,175.75. This notice followed an audit for the taxable period October 1, 1975, through June 30, 1979. The audit revealed that plaintiff had not remitted sales taxes for the sale of bunker fuel to 11 customers operating vessels of registered tonnage of 500 tons or more, all of which sailed under Canadian registry and were engaged exclusively in foreign commerce. Sale of bunker fuel for the use of vessels operating in foreign commerce is taxable according to Department of Treasury Rule 81.
On February 28, 1980, plaintiff paid tax (under protest) in the amount of $120,207.37 and, later, accrued interest in the amount of $19,948.04. Plaintiff then claimed a refund.
On December 4, 1980, an informal conference was held before a hearing referee, who, on April 2, 1981, recommended in a written opinion that plaintiff’s claim for a refund be denied. The referee’s recommendation was accepted by Revenue Commissioner Sidney D. Goodman, who denied plaintiff’s claim for refund on June 16, 1981. Plain tiff then filed the instant action in the Court of Claims.
Plaintiff first argues that the department has reversed long-standing policy in presently denying an exclusion for vessels traveling in foreign commerce, but that applicable statutory provisions have never been amended to provide a basis for such change in interpretation. Moreover, plaintiff posits that most authorities have considered interstate and foreign commerce synonymously, so that the term "interstate commerce” includes both interstate and foreign commerce, thereby allowing an exclusion from sales tax in the instant case. We find this contention to be without merit. MCL 205.54a; MSA 7.525 provides in relevant part:
"A person subject to tax under this act need not include in the amount of the gross proceeds used for the computation of the tax, sales of tangible personal property:
"(e) To persons, of a vessel designated for commercial use of registered tonnage of 500 tons or more when produced upon special order of the purchaser, and bunker and galley fuel, provisions, supplies, maintenance, and repairs for the exclusive use of the vessel engaged in interstate commerce.” (Emphasis added.)
In 1944, the Department of Treasury promulgated Rule 81 (1944 AC, R 205.131), which provided in part:
"Sales of vessels designed for commercial use of registered tonnage of 1,000 tons or more when produced upon special order of the purchaser are exempt. Likewise not taxable are sales of bunker and galley fuel, provisions, supplies, maintenance and repairs for the exclusive use of vessels of 1,000 tons or more, which travel from a point in Michigan to a destination in another state or country.
"Sales of tangible personal property not for resale to vessels of registered tonnage of 1,000 tons or more primarily engaged in intrastate commerce are taxable as are all sales of vessels and to vessels of less than 1,000 tons.” (Emphasis added.)
This interpretation of what is now § 4a(e), distinguishing between intrastate commerce and foreign and interstate commerce, was followed by the department for 27 years. In 1977, the rule was amended to make taxable the sales for the use by vessels operating in foreign commerce. Following an amendment in 1976, the rule now reads in relevant part:
"(1) Sales of vessels designed for commercial use of registered tonnage of 500 tons or more, when produced upon special order of the purchaser, are exempt from tax. Also nontaxable are sales of bunker and galley fuel, provisions, supplies, maintenance, and repairs for the exclusive use of those vessels of 500 tons or more, if those vessels travel from a point in Michigan to a destination in another state. Sales of such items for the use of vessels operating in foreign commerce are taxable.” (Emphasis added.) 1979 AC, R 205.131.
US Const, art 1, § 8, clause 3, provides: "The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States * * Not only does the commerce clause expressly identify foreign as well as interstate commerce, but the Supreme Court has noted that the foreign commerce power was the greater of the two, dating back to the founders. Japan Line, Ltd v Los Angeles County, 441 US 434, 448-449; 99 S Ct 1813; 60 L Ed 2d 336 (1979). As noted by the lower court:
" 'Interstate commerce’ is defined by Black’s Law Dictionary, 5th Ed, as 'Traffic, intercourse, commercial trading, or the transportation of persons or property between or among the several states of the Union, or from or between points in one state and points in another state * * 'Foreign commerce’ is defined in Black’s as 'Trade between persons in the United States and those in a foreign country.’ Other definitions are similar.
"Nevertheless, Consolidation maintains the distinction between the terms was not clear when the Act was originally enacted. Such is not borne out by case law. See Levin v Fisher, 217 Mich 681, 684; 187 NW 328 (1922), [Lord] v [Goodall, Nelson & Perkins] Steamship Co, 102 US 541; 26 L Ed 224 [(1881)], Atlantic Cleaners & [Dyers, Inc] v United States, 286 US 427; 52 S Ct 607; 76 L Ed 1204 [(1932)].
"Moreover, the Legislature, since the rule revision, has amended other parts of the Act and has not exempted foreign commerce. Under such circumstances, the Court concludes that the Legislature intended not to provide an exemption to those engaged in foreign commerce.”
We find the above an accurate assessment of the language contained in § 4a(e).
Additionally, while plaintiff persuasively argues that the Legislature amended the act on several occasions when Rule 81 excluded foreign commerce without changing such exclusion, and that this indicates a legislative intent to so exclude such commerce, the fact that the effect of the present Rule 81 has never been amended in the numerous amendments since the department began imposing tax upon foreign commerce negates the inference that the Legislature intended to exclude foreign commerce. This being the case, we look to the clear language of the statute, which does not exclude foreign commerce.
Plaintiff further contends that the Department of Treasury exceeded its authority by reversing a long-standing interpretation of an ambiguous statutory provision, where the Legislature had not acted in any way to clarify its intent. The cases cited by plaintiff, however, do not support this proposition in the present case. Rather, plaintiff’s authority states that dubious statutory language may not be resolved against the taxpayer. See e.g., Garavaglia v Dep’t of Revenue, 338 Mich 467, 470-471; 61 NW2d 612 (1953). Where, as here, the language under consideration is not ambiguous, it should be applied as written, not construed in favor of the taxpayer.
Accordingly, the term "interstate commerce” in § 4a(e) is not ambiguous and does not exempt foreign commerce from the sales tax. Therefore, the present Rule 81 correctly states the intent of the Legislature insofar as it imposes the sales tax upon sales of fuel to vessels in foreign commerce. If the department formerly interpreted § 4a(e) to exclude such foreign commerce, that interpretation did not comport with the clear language of the statute.
Plaintiff next asserts that exempting interstate commerce while taxing foreign commerce is patently discriminatory and precludes the federal government from speaking with one voice when regulating commerce with foreign governments. Plaintiff concludes that this violates both article 1, § 8(3), the commerce clause, and equal protection, since there is no rational basis for not treating interstate and foreign commerce similarly in this case. Finally, plaintiff argues that the present scheme is tantamount to regulation of foreign commerce, an area preempted by federal law, and that the sales tax is in violation of the Treaty of 1909 between the United States and the United Kingdom, adopting a uniform policy regarding the boundary waters lying between the United States and Canada.
Foreign commerce is not constitutionally immune from state taxation, but, rather, must bear its fair share of the state tax burden. See discussion in Bob-Lo Co v Dep’t of Treasury, 112 Mich App 231, 238-243; 315 NW2d 902 (1982). No impermissible burden on foreign commerce will be found if the state tax is applied to an activity with a substantial nexus to the taxing state, is fairly apportioned, does not discriminate against foreign commerce, is fairly related to the services provided by the state, does not create a substantial risk of international multiple taxation, and does not prevent the federal government from " 'speaking with one voice when regulating commercial relations with foreign governments’ ”. Japan Line, Ltd, supra, 441 US 444-451, quoting Michelin Tire Corp v Wages, 423 US 276, 285; 46 L Ed 2d 495; 96 S Ct 535 (1976).
The lower court correctly concluded that the instant case required consideration of the above factors. Plaintiff, however, does not challenge § 4a(e) on any of the enumerated criteria in Japan Line, Ltd, supra, save for the claim that it discriminates against foreign commerce vis-á-vis interstate commerce. Plaintiff admits that a nondiscriminatory sales tax could be imposed.
Defendant, on the other hand, claims that the federal commerce power is not implicated by a sales tax on bunker fuel to be consumed in transit, since the tax incident is purely intrastate in nature. We disagree with this contention. Nevertheless, plaintiff has not established that the present scheme discriminates against foreign commerce. In its brief plaintiff states that "the tax clearly increases the operating cost of vessels engaged in foreign commerce compared to those engaged in interstate commerce and to that extent is patently discriminatory and also precludes the United States from speaking with one voice when regulating commerce of foreign governments”. Plaintiff additionallly argues that this Court’s decision in Bob-Lo, supra, "incredibly” relied upon the discredited doctrine of Spector Motor Service, Inc v O’Connor, 340 US 602; 71 S Ct 508; 95 L Ed 573 (1951). Plaintiff is correct that Spector has been discredited. Plaintiff, however, incorrectly argues that an increase in the cost of doing business constitutes discrimination. In Complete Auto Transit, Inc v Brady, 430 US 274; 97 S Ct 1076; 51 L Ed 2d 326 (1977), the case which specifically disavowed the Spector rule, the Supreme Court noted other cases which found no impermissible burden, i.e., no discrimination, even though the costs of doing business were increased. In addition, the decision in Bob-Lo did not rely upon Spector. Plaintiffs claim does not establish discrimination.
Furthermore, we find Japan Line, Ltd, supra, clearly distinguishable. The Complete Auto test, as adopted and expanded in Japan Line to encompass foreign commerce, is a pragmatic approach which looks to economic realities. Of key significance in Japan Line, Ltd and cases cited therein was the fact that the taxed item passed into many jurisdictions, including foreign nations, and was potentially subject to tax in each jurisdiction. Thus, numerous sovereigns were involved, and imposition of the tax encouraged retaliatory actions in contravention of federal policy. Here, the tax is imposed upon plaintiff, which is not a purchaser, and thus, not in the same position as a participant in foreign commerce whose items pass through various taxing authorities, many or all of which attempt to impose a tax on the item. In other words, it is the privilege of making the transaction here which is taxed, not the transport of the fuel in the stream of foreign commerce, or its use in any way by the purchaser. The tax is not upon the vessels which engage solely in foreign commerce. Rather, it is plaintiff which is the taxpayer, see Sims v Firestone Tire & Rubber Co, 397 Mich 469; 245 NW2d 13 (1976), and the tax is not duplicated. Accordingly, while plaintiff does engage in foreign commerce, the foreign commerce itself, unlike the situation in Japan Line, Ltd, supra, is not discriminated against. In this connection, plaintiff’s sale of fuel is not an integral part of this commerce, so that plaintiff’s claim of discrimination is not persuasive. See Detroit & Cleveland Navigation Co v Dep’t of Revenue, 342 Mich 234, 243; 69 NW2d 832 (1955).
As to plaintiff’s equal protection claim, we decline to address the contention that § 4a(e) of the act is unconstitutional for the reason that it discriminates against foreign commerce. Where resolution of a question on constitutional grounds is not essential, such should be avoided. See eg., People v Gauntlett, 134 Mich App 737, 746-747; 352 NW2d 310 (1984), and Lisee v Secretary of State, 388 Mich 32, 40-41; 199 NW2d 188 (1972).
In Bob-Lo, supra, a similar situation was presented to a panel of this Court, which held that the bunker fuel taken on board the Bob-Lo boats was subject to use tax pursuant to the very same Rule 81 under construction in the instant case. Bob-Lo considered discrimination, not as a factor under commerce clause analysis, but, rather, as a separate issue of equal protection. There, it was stated:
"Plaintiff contends that by including vessels engaged in interstate commerce within the statutory exemption but failing to include those engaged in foreign com merce the Department of Treasury has denied the plaintiff equal protection of the laws. Since we have already held that under the authorities cited earlier Michigan may impose a use tax on Bob-Lo’s operations in foreign commerce, it is unnecessary for us to decide whether the state’s failure similarly to exempt vessels in interstate commerce is constitutionally impermissible.
"Assuming, arguendo, that the failure to exempt equally vessels traversing navigable waters from Michigan to another state is violative of equal protection of the laws, the remedy is not to exempt vessels in foreign commerce but is to strike down the exemption for vessels in interstate commerce. That is not what plaintiff is asking here.” 112 Mich App 245.
In the case sub judice, the same outcome as in Bob-Lo is in order as far as the remedy is concerned. Plaintiffs assertion that this Court can read "and foreign commerce” into the term "interstate commerce” in § 4a(e) is, as noted, premised on the false assumption that the term is ambiguous. By including foreign commerce in the § 4a(e) exemption, this Court would be adding to the statute, not interpreting it. Moreover, plaintiff has not requested that this Court strike the exemption granted to interstate commerce, but demands that foreign commerce also be exempted. This we will not do.
Plaintiffs remaining objections to the exclusion of foreign commerce from § 4a(e) exemptions are not addressed here. Plaintiffs discussion in its brief of its equal protection and due process challenges raises no new issues over what was considered above. Furthermore, plaintiff presents no support for the alleged violation of Const 1963, art 9, § 3, and the sale of bunker fuel for consumption by a vessel during its voyage does not constitute an export so as to come within the prohibition against states taxing exports. See Shell Oil Co v State Board of Equalization of California, 64 Cal 2d 713; 51 Cal Rptr 524; 414 P2d 820 (1966), app dis 386 US 211; 87 S Ct 973; 17 L Ed 2d 870 (1967).
We also find no interference with federal regulations which prevents the United States government from "speaking with one voice”. Such improper regulation is only found where the tax is linked to specific regulatory directives which would impede congressional objectives. No such connection exists here. See MCI Telecommunications Corp v Dep’t of Treasury, 136 Mich App 28, 36; 355 NW2d 627 (1984).
Plaintiffs final argument, that the taxation of the bunker fuel sold to the Canadian vessels is in violation of the Treaty of 1909 between the United States and the United Kingdom, is a point "not set forth or necessarily suggested by the Statement of Questions Involved” and does not merit consideration. GCR 1963, 813.1. In any event, the treaty addresses "free navigation” of all navigable boundary waters and is not affected by a tax imposed upon the seller of fuel. Again, the sales tax is not imposed upon the vessels. The tax is merely permitted to be passed on to consumers pursuant to MCL 205.73; MSA 7.544 as a cost of doing business. A tax is not discriminatory merely because it increases such costs, nor does it violate the Treaty of 1909.
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Per Curiam.
Defendant was employed by the Michigan Employment Security Commission as an Administrative Law Examiner IV until he was discharged on April 1, 1983. The MESC subsequently filed a complaint in the circuit court seeking an order compelling the return of business records. Defendant filed a counterclaim seeking a judgment for services rendered and an injunctive order compelling the MESC to reinstate him to his position as Administrative Law Examiner IV.
The trial court ordered the return of the MESC business records and dismissed defendant’s counterclaim for money damages. Following a hearing, the trial court on June 29, 1983, entered an order granting defendant’s request for temporary injunctive relief, reinstating defendant to his position as Administrative Law Examiner IV pending exhaustion of the administrative procedures provided under the Michigan Civil Service Commission Rules. The MESC appeals as of right.
The sole issue on appeal is whether the trial court erred in granting defendant’s request for a preliminary injunction reinstating him as an Administrative Law Examiner IV.
In Michigan State Employees Association v Dep’t of Mental Health, 421 Mich 152; 365 NW2d 93 (1984), the Supreme Court set forth standards for determining whether preliminary injunctive relief is appropriate in civil service employee discharge cases. Specifically, the Court addressed the required showing of irreparable injury necessary to support a preliminary injunction in such cases.
The defendant in MSEA discharged the plaintiff from her position as registered nurse based on the allegation that she had negligently supervised a patient, which resulted in his death. The plaintiff sought preliminary injunctive relief in the circuit court, alleging that she was a divorced mother who provided the sole support for her nine-year-old son who resided with her and that she had virtually no savings and would have no means of supporting herself and her child if terminated from employment. The circuit court entered a preliminary injunction preventing the defendant from discharging the plaintiff and from withholding her pay pending exhaustion of her administrative remedies. A panel of this Court upheld the preliminary injunction. MSEA v Dep’t of Mental Health, 120 Mich App 39; 328 NW2d 11 (1982). The Supreme Court held that the plaintiff had not made a sufficient showing of irreparable injury, and therefore reversed the preliminary injunction and remanded for further proceedings.
After discussing the competing policy considerations involved in public employee terminations, the Supreme Court stated:
"While civil servants are entitled to protection from the burdens and injuries inflicted by wrongful discharge, discharged public employees are not entitled, under current civil service procedures, to remain on the public payroll pending exhaustion of remedies. Where a public policy decision has been made that the state and its employees shall bear some risk, and some of the burdens, of erroneous and wrongful discharge, it is not for the courts to extend, through the device of preliminary injunction, the protections against erroneous terminations beyond those provided by the people’s delegates. The routine grant of preliminary injunctions in public employee discharge cases pending exhaustion of all remedies would destroy the balance that has been struck between the competing interests involved. This the courts may not, and must not do.
"While it is clear that in many cases a wrongfully discharged employee will suffer severe injury only inadequately remedied by a later award of reinstatement with back pay and benefits, the suffering of the rightfully discharged public employee is likely to be indistinguishable from that of the wrongfully discharged employee. Superficially, therefore, the needs of judicial administration might appear to necessitate a choice between two extremes in interpreting the 'irreparable injury’ requirement: either an interpretation which makes a stay available in all such cases, or an interpretation which precludes a finding of such injury in any civil servant discharge case. We do not believe that the alternatives are so limited. To the extent that Sampson [v Murray, 415 US 61; 94 S Ct 937; 39 L Ed 2d 166 (1974)] appears to have been understood as a preclusion per se to a finding of irreparable injury in civil servant discharge cases, we decline to adopt that rationale. We are convinced of the ability of trial courts to properly apply the irreparable injury requirement, in combination with the other traditional requirements for grant of preliminary injunctions, in light of the competing policy considerations involved in civil servant discharges.
"Defendant has not argued that Const 1963, art 6, § 28, limits the traditional power of the judiciary to issue preliminary injunctions in civil servant cases; nor could such a claim prevail in the absence of a provision expressly so providing. See e.g., Gilley v United States, 649 F2d 449, 453 (CA 6, 1981). The traditional equitable power of the judiciary to issue such injunction, provided for in MCL 600.601; MSA 27A.601, is available in appropriate cases. However, we hold that, where civil service procedures have been followed, and constitutional requirements met, a preliminary injunction to stay the discharge of a civil servant during the pendency of grievance procedures should issue only in extraordinary circumstances.” (Footnote omitted; emphasis added.) 421 Mich 164-166.
The Supreme Court found that the plaintiff’s allegations of inadequate financial resources and her counsel’s representations that she might be unable to obtain other employment as a nurse due to the reasons given for her discharge and that she might be ineligible for unemployment benefits were insufficient to establish irreparable injury. The Supreme Court emphasized the limits of its holding:
"We can envision a variety of circumstances which might, in appropriate civil servant discharge cases, warrant a finding of irreparable injury sufficient to support the grant of a preliminary injunction. In all cases, the injury must be evaluated in light of the totality of the circumstances affecting, and the alternatives available to, the discharged employee.
"We do not hold that the absence of usable resources and of obtainable alternative sources of income with which to support one’s self and one’s dependants, coupled with the prospect of destitution, serious physical harm, or loss of irreplaceable treasured possessions, could never support a finding of irreparable injury in an appropriate case.” (Emphasis in original.) 421 Mich 166-168.
Applying the MSEA standards to the present case, we find that defendant has failed to make a sufficient showing of irreparable harm. According to defendant’s affidavit and hearing testimony, he was separated from his wife and provided the sole support for his three minor children who resided with him. Defendant averred that he had exhausted his savings and that termination of his employment meant not only the loss of income but also the loss of fringe benefits such as health, dental and life insurance for defendant and his family. Defendant further alleged that he "has had no real income through self-employment although practicing as an attorney-at-law, due to expanses [sic] incident to establishing a private practice of the law”. Defendant also averred that since his termination in April, 1983, he was three months in arrears on payments due on a land contract for the purchase of his family residence.
Viewing the alleged injury in light of the totality of the circumstances affecting, and the alternatives available to, the defendant, MSEA, supra, 421 Mich 167, we conclude that defendant has failed to establish the extraordinary circumstances required for finding an irreparable injury in this case. The circumstances alleged by defendant are common to many discharged employees who lose their income and fringe benefits. Defendant has not sufficiently alleged that he is without "usable resources and * * * obtainable alternative sources of income” with which to support himself and his family. MSEA, supra, 421 Mich 168. Applying the standards adopted by the Supreme Court in MSEA, we hold that defendant is not entitled to injunctive relief.
Reversed.
"10 In certain circumstances, for instance, the loss of health insurance benefits where there is a serious immediate or ongoing need for medical treatment might be sufficient. See, e.g., Gonzalez v Chasen, 506 F Supp 990 (D PR, 1980). We also do not exclude the possibility that, in an otherwise strong case, the certainty that a long-term investment in a treasured possession will be lost — such as by the foreclosure of the mortgage on a long-time family home — might constitute sufficient injury.” | [
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