text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Per Curiam.
Plaintiffs, Raymond C. and Mary Lou Vreeland, appeal as of right from an order granting defendant’s motion for summary judgment, pursuant to GCR 1963, 117.2(3). This action arose from a two-car accident in which Raymond Vreeland suffered soft tissue injuries. On appeal plaintiffs assert that a soft tissue injury can be a serious impairment of body functions and that it is unconstitutional for a statute not to allow persons with soft tissue injuries a trial on the merits.
The statute, MCL 500.3135; MSA 24.13135, abolished tort liability for noneconomic losses unless certain threshold requirements were met. The reasoning and goals of the Legislature have been upheld and declared constitutional. Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978). Plaintiff alleges that Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), did not hold that soft tissue injuries would never qualify as serious impairments of body functions as a matter of law. With this we agree. Rather we find that the Court discussed just what constitutes a serious impairment of a body function and under what circumstances the trial court can decide that matter.
"Therefore, we conclude that the meaning of 'serious impairment of body function’ is a matter to be determined by statutory construction. We hold that when there is no factual dispute regarding the nature and extent of a plaintiff’s injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Likewise, if there is a factual dispute as to the nature and extent of a plaintiff’s injuries, but the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function, the court shall rule as a matter of law whether the threshold requirement of MCL 500.3135; MSA 24.13135 has been met.” Cassidy, supra, p 502.
In the instant case we find no factual dispute. There is agreement that plaintiff does experience pain and suffering; however, that is not the standard upon which relief may be granted.
"Another significant aspect of the phrase 'serious impairment of body function’ is that it demonstrates the legislative intent to predicate recovery for noneconomic loss on objectively manifested injuries. Recovery for pain and suffering is not predicated on serious pain and suffering, but on injuries that affect the functioning of the body.” Id., p 505.
Plaintiff’s injuries were not subject to medical measurement and thus are not objectively manifested in a scientific or medical context. Cassidy, supra, and Williams v Payne, 131 Mich App 403; 346 NW2d 564 (1984).
"Medically unsubstantiated pain will always be present in a tort action for pain and suffering. The Legislature could not intend so low a threshold for avoiding the no-fault act’s proscription against tort actions. General pain and suffering is not sufficient to meet the threshold.” Williams, supra, p 410.
Even if we were to assume, arguendo, that plaintiff’s arthritic condition was accelerated by the accident, plaintiff still does not meet the threshold. As in Braden v Lee, 133 Mich App 215, 218-219; 348 NW2d 63 (1984), plaintiff here is able to work and, although he has difficulty with some tasks, he is able to live a normal life and can garden and golf, etc. There is no significant interference with his normal lifestyle, nor is he incapacitated.
As there is no. distinction between persons with soft tissue injuries and those with other injuries, plaintiff’s argument that the statute and its interpretation are unconstitutional is without merit. See Shavers, supra.
We conclude that the trial court was correct in determining as a matter of law that plaintiff’s injuries failed to meet the minimum threshold requirement for recovery of noneconomic losses; thus, summary judgment was properly entered in defendant’s favor.
Affirmed. Costs to appellee. | [
11,
64,
-19,
53,
3,
34,
59,
-27,
-18,
35,
-35,
-49,
29,
1,
60,
-30,
-7,
-15,
-24,
58,
-17,
6,
-13,
60,
-10,
-36,
50,
-5,
-17,
23,
14,
-41,
26,
15,
7,
0,
17,
44,
9,
53,
38,
15,
27,
-22,
-37,
-27,
60,
4,
20,
-12,
42,
-12,
-43,
-14,
-16,
22,
52,
17,
-14,
-20,
12,
23,
-1,
-20,
12,
7,
-22,
32,
-40,
-25,
-34,
36,
-43,
-78,
-24,
8,
-37,
23,
29,
-13,
30,
20,
28,
43,
-32,
71,
-45,
-17,
-13,
-109,
4,
-40,
-45,
17,
-26,
37,
-48,
-31,
26,
-34,
-8,
1,
22,
31,
-53,
24,
-20,
-18,
18,
-9,
-9,
48,
-60,
7,
-30,
-47,
26,
2,
-9,
28,
-48,
11,
43,
-6,
31,
-12,
0,
-1,
25,
-2,
7,
36,
-3,
2,
-15,
-17,
-36,
-28,
5,
18,
-23,
6,
13,
-3,
14,
26,
7,
-58,
2,
-25,
76,
49,
-32,
21,
-21,
11,
-40,
10,
33,
24,
43,
-21,
-2,
7,
10,
-36,
-8,
52,
17,
-7,
28,
8,
32,
-3,
-3,
13,
60,
-17,
-39,
26,
-25,
9,
44,
42,
-28,
-49,
-55,
-9,
20,
-39,
-26,
-4,
-36,
-44,
1,
22,
30,
-8,
2,
4,
7,
-17,
-20,
-23,
25,
9,
55,
-8,
25,
39,
-30,
-17,
-15,
-36,
23,
-20,
58,
-6,
-52,
-45,
-18,
22,
49,
-43,
-25,
-20,
-13,
-58,
5,
-35,
42,
48,
-46,
7,
-8,
-29,
-21,
-8,
56,
29,
32,
-5,
-9,
-58,
-8,
2,
-12,
-48,
-2,
-21,
67,
0,
43,
24,
-63,
8,
-17,
31,
-42,
19,
7,
50,
-37,
47,
-17,
-10,
-35,
45,
-16,
-23,
-11,
3,
-36,
-11,
5,
-68,
-39,
-14,
44,
27,
9,
14,
52,
-35,
-42,
-11,
-16,
-15,
-2,
32,
-1,
-57,
-16,
15,
36,
-15,
46,
-3,
-7,
15,
31,
-52,
5,
58,
-25,
46,
-10,
11,
0,
-6,
-13,
41,
17,
-35,
63,
8,
-12,
7,
15,
-45,
-10,
0,
14,
-10,
4,
-19,
34,
-42,
-43,
-13,
10,
-1,
-9,
-1,
16,
-15,
41,
-8,
15,
17,
27,
20,
-12,
-17,
6,
38,
-43,
-5,
62,
13,
-39,
43,
40,
-10,
-39,
-29,
0,
-57,
-32,
25,
10,
-45,
-19,
-1,
-28,
32,
-1,
17,
-13,
71,
1,
-19,
26,
-74,
20,
-22,
50,
56,
0,
-3,
39,
36,
58,
-34,
-18,
12,
-65,
-28,
-16,
-51,
-19,
-24,
6,
19,
-6,
33,
-6,
-24,
26,
-10,
-20,
-7,
-15,
35,
0,
-56,
14,
-45,
24,
31,
9,
23,
50,
-40,
37,
22,
48,
-7,
32,
-67,
45,
13,
1,
-18,
8,
-22,
-24,
31,
-11,
-26,
-25,
0,
-21,
-39,
9,
-3,
0,
-33,
42,
-1,
-35,
-1,
9,
-10,
-37,
76,
29,
19,
4,
5,
27,
-28,
26,
-56,
-40,
1,
25,
-9,
-33,
-14,
-8,
-17,
9,
9,
73,
-15,
-53,
-28,
49,
-74,
17,
-1,
43,
-5,
30,
4,
-27,
12,
-14,
-26,
3,
3,
-5,
-45,
6,
32,
-13,
51,
-28,
-47,
-9,
-10,
-1,
28,
-4,
-26,
-42,
7,
-28,
-27,
9,
-39,
-24,
-23,
40,
-50,
-6,
-26,
20,
20,
-42,
29,
25,
37,
12,
-25,
14,
-1,
5,
-12,
-61,
9,
-28,
-25,
-32,
-44,
-21,
-16,
43,
-60,
45,
-56,
23,
-21,
40,
-17,
-19,
-33,
-19,
-30,
13,
30,
-20,
-11,
46,
-33,
-11,
56,
54,
38,
-39,
-45,
-11,
14,
6,
-31,
-8,
-18,
78,
-5,
-8,
11,
15,
49,
25,
-6,
27,
-17,
49,
0,
-33,
17,
9,
-34,
-14,
-37,
37,
8,
-38,
-22,
28,
-5,
-22,
-1,
-18,
-44,
14,
-32,
24,
-68,
21,
-9,
8,
15,
1,
9,
-8,
-21,
-15,
-48,
-11,
21,
-31,
29,
16,
48,
31,
25,
46,
-39,
-19,
20,
-44,
-15,
-59,
-49,
3,
50,
43,
21,
13,
-11,
-6,
-11,
-16,
-33,
-34,
19,
-50,
-12,
6,
10,
-37,
-22,
11,
86,
-11,
15,
-10,
-9,
-13,
13,
23,
40,
66,
-6,
29,
61,
-33,
-23,
-22,
34,
-86,
13,
-17,
-8,
-8,
32,
-30,
32,
-10,
-20,
-13,
-36,
-38,
33,
-38,
14,
-39,
-9,
48,
11,
24,
1,
77,
-28,
-30,
43,
13,
38,
1,
-67,
44,
-12,
1,
49,
-12,
22,
68,
-29,
-15,
36,
33,
-12,
45,
-16,
13,
30,
-18,
38,
-4,
10,
0,
7,
-12,
23,
-25,
-25,
-5,
6,
-11,
22,
-26,
-43,
49,
0,
8,
-11,
39,
-17,
-13,
-27,
-15,
-24,
-16,
32,
18,
10,
5,
-17,
-34,
21,
14,
-29,
-13,
62,
14,
23,
8,
-7,
33,
2,
-1,
-8,
-5,
-42,
-31,
-15,
-13,
63,
-49,
-35,
-16,
-3,
-11,
-20,
-10,
-4,
20,
-15,
10,
0,
-35,
21,
-29,
-31,
-30,
36,
-42,
-23,
3,
-6,
14,
-44,
-15,
-18,
-6,
-36,
-17,
12,
-17,
-36,
27,
25,
-78,
-34,
-16,
-37,
-72,
12,
-10,
50,
-16,
-7,
31,
-14,
7,
-38,
-39,
-10,
26,
19,
-23,
37,
-8,
23,
1,
14,
4,
38,
43,
-110,
21,
20,
-15,
12,
-6,
10,
-21,
-15,
79,
30,
-65,
-22,
73,
-11,
37,
-19,
34,
-45,
-26,
-12,
-8,
39,
10,
20,
3,
5,
-2,
11,
-14,
25,
-64,
34,
25,
10,
-20,
-9,
-14,
29,
3,
-47,
9,
33,
21,
-34,
-22,
-30,
-29,
2,
7,
-2,
-23,
19,
-29,
97,
-31,
12,
43,
49,
-3,
33,
-37,
-12,
22,
6,
-4,
-37,
-21,
15,
35,
-61,
-30,
13,
-17,
38,
6,
-2,
-39,
-27,
41,
56,
11,
35,
-30,
0,
-1,
57,
34,
-36,
-34,
14,
38,
37,
1,
-29,
42,
-9,
-23,
2,
-9,
-26,
57,
1,
37,
69,
-3,
13,
26,
-4,
-15,
27,
50,
-21,
-5,
-9,
-34,
-14,
-19,
52,
-39,
-15,
30,
-16,
31,
-21,
39,
-39,
31,
-36,
54,
0,
-6,
77,
-54,
-50,
-26,
-7,
34,
19,
0,
-27,
19,
8,
0,
-3,
39,
-16,
-45,
67,
-7,
-9,
-55,
36,
37,
33,
-3,
-60,
-27,
-4,
-41,
-4,
-40,
-28,
33,
-20,
8,
-10,
-17,
22,
-21,
-54,
-36,
2,
-14,
-20,
-17,
22,
-63,
-39,
10,
26,
21,
9,
-10,
12,
0,
19,
0,
7,
-33,
-27,
1,
57,
-22,
-32,
49,
6,
3,
28,
13,
41,
0,
-3,
-7,
21,
14,
-10,
-19,
1,
-7,
24,
56,
-9
] |
M. J. Kelly, P.J.
Plaintiffs appealed as of right from an order of the circuit court enforcing a purported oral settlement agreement. On November 7, 1984, we affirmed in a published per curiam opinion. 138 Mich App 807; 360 NW2d 307 (1984) (Kelly, J., dissenting). Plaintiffs then filed an application for rehearing which we granted by order of January 30, 1985.
Upon reconsideration of the record and briefs, we reverse the trial court’s order for the reasons stated earlier by Judge Kelly in his dissenting opinion. Plaintiffs in this case have consistently denied the existence of a binding settlement agreement on the ground that there was no meeting of the minds. We thus distinguish the instant case from the recent decision of this Court in Thomas v Michigan Mutual Ins Co, 138 Mich App 117; 358 NW2d 902 (1984), in which one of the members of this panel participated. Plaintiff in Thomas never denied the existence of a settlement agreement but expressly sought to revoke the offer to accept. Because we find that the parties in this case never entered into a binding settlement agreement, the trial court erred in equating oral communications between the parties’ attorneys to a binding settlement agreement, contrary to GCR 1963, 507.9.
Reversed.
Bronson, J., concurred. | [
-33,
-27,
-24,
36,
25,
-26,
8,
-17,
-40,
9,
12,
2,
4,
4,
-44,
12,
12,
-27,
24,
-7,
-37,
-9,
-32,
31,
-4,
11,
25,
-27,
11,
-18,
7,
24,
-38,
8,
-43,
-50,
13,
7,
1,
-60,
8,
-25,
12,
35,
-66,
1,
22,
-36,
16,
-40,
33,
8,
20,
17,
-58,
17,
-63,
23,
13,
-16,
-26,
50,
63,
49,
-37,
4,
32,
36,
-2,
-1,
-17,
16,
0,
2,
12,
-20,
1,
24,
5,
-20,
59,
45,
47,
17,
-33,
5,
-5,
15,
4,
43,
-4,
33,
-31,
-40,
39,
44,
-5,
-30,
-12,
22,
-7,
-7,
-13,
32,
20,
14,
59,
-18,
-5,
51,
-7,
-21,
-2,
-23,
-29,
-10,
3,
-62,
-7,
-19,
-24,
-15,
-26,
56,
-6,
15,
2,
-41,
6,
16,
-6,
-4,
31,
53,
5,
-33,
5,
12,
28,
14,
20,
2,
-15,
-34,
-3,
15,
-44,
-34,
-6,
-37,
17,
9,
-5,
28,
1,
11,
49,
-4,
2,
-17,
40,
21,
-8,
47,
-17,
-23,
6,
14,
33,
-21,
4,
-20,
-10,
-6,
-20,
33,
15,
23,
-16,
8,
-29,
22,
6,
-62,
-9,
-27,
26,
47,
-23,
-7,
-12,
-34,
-11,
65,
6,
24,
32,
36,
4,
31,
-6,
4,
-11,
26,
-9,
-25,
28,
-2,
-16,
38,
-60,
-12,
15,
-63,
30,
-17,
52,
-26,
-3,
-1,
86,
52,
-4,
45,
-78,
-47,
25,
10,
-11,
-23,
-62,
20,
-19,
33,
0,
4,
18,
18,
47,
4,
10,
-14,
-29,
0,
-30,
12,
-46,
-29,
20,
22,
-22,
33,
-2,
5,
8,
-59,
-37,
24,
-43,
33,
13,
35,
-77,
7,
-23,
-44,
-55,
-30,
46,
-9,
-38,
3,
27,
10,
-1,
-41,
-60,
18,
-59,
-21,
-2,
38,
5,
5,
-14,
14,
8,
27,
-10,
38,
17,
-26,
-42,
0,
33,
8,
13,
-8,
-5,
1,
-23,
-42,
43,
-33,
-43,
-26,
-61,
-21,
43,
5,
20,
8,
15,
10,
3,
-33,
-31,
-40,
70,
-36,
8,
64,
0,
-7,
9,
-28,
19,
-8,
-7,
-25,
0,
29,
15,
80,
38,
2,
-7,
6,
-10,
29,
24,
72,
25,
-28,
-13,
13,
12,
-13,
17,
20,
-1,
-31,
14,
-8,
-29,
36,
8,
-35,
1,
34,
3,
-9,
13,
-2,
-47,
37,
-6,
23,
64,
41,
19,
34,
-41,
-23,
-51,
-11,
-2,
-10,
-29,
38,
-49,
-3,
2,
34,
58,
-38,
-26,
4,
-1,
-32,
-66,
-79,
15,
68,
-10,
6,
24,
-3,
-10,
14,
44,
0,
-27,
-24,
8,
36,
46,
-32,
-31,
-10,
23,
-9,
-34,
1,
-39,
-11,
65,
37,
56,
-19,
-17,
5,
-35,
-44,
-25,
-16,
42,
19,
-52,
-33,
-41,
52,
16,
-37,
16,
36,
-32,
-52,
-89,
-27,
-15,
23,
-9,
-30,
19,
-5,
-37,
33,
41,
41,
-5,
58,
-25,
34,
-52,
78,
-22,
-15,
9,
-46,
3,
-22,
-4,
16,
-4,
-51,
-7,
-6,
0,
2,
-7,
22,
34,
68,
8,
-8,
-37,
-33,
-12,
-4,
-2,
47,
-15,
16,
-13,
42,
-4,
-15,
30,
4,
-31,
-22,
1,
13,
-44,
-6,
-10,
-31,
-6,
30,
-6,
22,
0,
16,
38,
2,
9,
-42,
-6,
-26,
17,
-48,
40,
48,
-11,
21,
-10,
13,
32,
39,
7,
-19,
-5,
-51,
-40,
49,
-25,
-38,
18,
32,
32,
47,
18,
-65,
0,
0,
-3,
-8,
27,
6,
6,
-10,
-71,
-24,
10,
15,
-39,
21,
59,
-6,
-53,
-61,
4,
-10,
3,
48,
19,
0,
-3,
8,
-62,
1,
11,
36,
-22,
4,
-14,
-33,
7,
58,
-52,
12,
16,
51,
16,
-45,
18,
-16,
-37,
-15,
-36,
-5,
-12,
-28,
-7,
-15,
56,
24,
-6,
-1,
-50,
-13,
33,
-58,
15,
-5,
13,
20,
40,
9,
1,
1,
-51,
-44,
-54,
-15,
-3,
-7,
-22,
3,
-11,
-26,
-26,
-10,
-45,
-23,
20,
48,
35,
-7,
-27,
57,
32,
-97,
19,
-20,
7,
51,
-35,
-9,
42,
-29,
65,
43,
6,
7,
-17,
61,
-23,
0,
-27,
56,
30,
9,
-1,
-33,
-47,
-15,
-12,
66,
12,
27,
9,
5,
-22,
0,
11,
-28,
-15,
-38,
15,
-8,
-17,
5,
-41,
2,
59,
19,
30,
6,
5,
2,
66,
-22,
27,
37,
-12,
33,
28,
1,
-17,
-13,
30,
-40,
-20,
-20,
0,
24,
-17,
25,
29,
4,
-19,
-53,
-18,
-34,
10,
19,
36,
-10,
2,
-18,
-12,
-46,
-5,
-1,
-10,
34,
7,
32,
-16,
26,
-4,
-10,
12,
66,
-4,
48,
-7,
8,
-43,
-2,
17,
-18,
2,
3,
10,
-48,
-44,
-9,
-12,
-15,
20,
29,
-21,
5,
7,
-36,
-64,
-4,
-13,
-23,
-26,
13,
1,
-14,
7,
60,
5,
10,
31,
-32,
-24,
87,
23,
0,
13,
-1,
-6,
3,
-2,
11,
-8,
5,
-11,
-22,
70,
3,
20,
-11,
-36,
-40,
-44,
47,
-10,
-73,
11,
69,
-36,
-48,
7,
4,
0,
15,
0,
-41,
64,
-47,
0,
40,
-67,
6,
3,
22,
42,
45,
-18,
31,
-4,
6,
-17,
11,
-14,
-1,
-3,
-10,
-24,
-37,
66,
34,
-6,
-54,
3,
-19,
10,
1,
-51,
16,
-10,
-19,
9,
17,
-82,
-7,
24,
23,
16,
-13,
-37,
30,
-4,
-44,
20,
32,
-19,
44,
19,
-28,
-25,
0,
32,
-34,
-72,
-2,
8,
12,
-15,
1,
4,
-21,
-24,
-52,
6,
81,
40,
-7,
-20,
-39,
42,
-6,
15,
35,
-48,
4,
37,
-23,
-20,
-43,
16,
-8,
52,
-29,
-41,
22,
-4,
15,
0,
-3,
7,
29,
3,
29,
10,
-18,
-5,
-21,
0,
-39,
21,
-2,
29,
0,
32,
18,
-1,
-38,
3,
-36,
11,
-7,
-9,
-16,
9,
47,
-12,
41,
9,
37,
28,
42,
13,
-9,
-20,
-54,
-51,
17,
-4,
1,
1,
-10,
40,
-22,
-52,
-73,
5,
-39,
-4,
59,
4,
4,
21,
46,
12,
-7,
5,
-26,
55,
3,
-43,
42,
12,
-17,
23,
-19,
-73,
-22,
-10,
-18,
7,
41,
-16,
-24,
-12,
15,
-24,
-14,
-19,
-15,
-48,
8,
-2,
36,
-29,
-39,
25,
-6,
-28,
20,
11,
-2,
-29,
23,
-2,
-31,
-30,
-36,
37,
7,
1,
-51,
-12,
-10,
-15,
37,
-37,
16,
2,
-26,
-21,
-32,
22,
-3,
-29,
-10,
63,
0,
3,
-42,
18,
-28,
-21,
17,
34,
-30,
0,
37,
49,
0,
29,
-1,
32,
70,
37,
11,
-41,
34,
-8,
8,
36,
18,
11,
21,
-42,
-14
] |
Per Curiam.
Plaintiff appeals as of right from an amended judgment granting to her under the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. (FOIA), disclosure of certain records in the possession of certain of the defendants (the university).
The events from which this case stem begin in 1978. Fortunately it is not necessary to detail them in order to make our decision clear, other than to state that they involve an effort by plaintiff to gain access to records of grants to and contracts involving the university’s Institute of Social Research (ISR), in order to establish her claim of wrongdoing by the ISR.
On June 24, 1983, the trial judge entered a judgment which ordered the university to disclose public records, “granting plaintiff’s revised re quests as stated in her letters of May 5, 1982, and June 3, 1983, to William L. Cash, Jr., a defendant, except for any other financial entity”.
Plaintiff’s requests in her May 5, 1982, letter are these:
"1. Said plaintiff, pursuant to the Michigan Freedom of Information Act, requests legible true copies of all active grants, contracts, subgrants, subcontracts, sub-projects, and any other active financial entity received or given by the Institute for Social Research of The University of Michigan for the period of January 1, 1970 up to the time the court grants plaintiff’s request and the records are delivered to her. Said plaintiff also requests legible true copies of all last bank statements of the account of the above requested financial entities and legible true copies of all cancelled and voided checks (fronts only) of said requested financial entities, for example, all cancelled and voided checks of all grants, subgrants, etc.
"2. Plaintiff requests that said requested records be sorted, for example, a contract with its cancelled and voided checks in numerical order and its last bank statement, be attached to its individual subs (each with its cancelled and voided checks in numercial order and last bank statement); and the grants and contracts be in chronological order, for example, the active 1970 grants and contracts first.”
Her letter request of June 3, 1983, is in the following form:
"My request for University records, pursuant to the Michigan Freedom of Information Act in letter of May 1982, remains the same except that I request that a legible copy of the requisition of each expenditure (check) be attached to each requested cancelled check.”
On August 4, 1983, by letter to William L. Cash, Jr., plaintiff again revised her request for records. This request consisted of the following:
"1. all active grants, their requisitions, their can-celled checks, and their last bank statements;
"a. and said active grants’ subprojects, their requisitions, their cancelled checks, and their last bank statements,
"b. and said active grants’ subgrants (also called subcontracts);
"2. all active contracts, their requisitions, their can-celled checks, and their last bank statements;
"a. and said active contracts’ subprojects, their requisitions, their cancelled checks, and their last bank statements,
"b. and said active contracts’ subcontracts.”
In this letter, plaintiff stated that she did not want to purchase copies of the records, only to examine them and make notes. The University responded that the only such records had been reduced to microfilm and that it could not permit plaintiff to view them without a university representative being present to protect the records.
On August 11, 1983, plaintiff filed a "revised supplement to amended complaint” setting forth by reference to the foregoing letters the above revised requests. At the same time she filed a motion to set aside the judgment of June 24, 1983, and moved for "judgment on amended complaint and revised supplement”.
After preliminary skirmishing between the parties as to the method by which the records should be made available for plaintiffs examination, the trial judge attempted to reach a resolution of the impasse, as appears from the trial court record:
"The Court: Where can she view [the microfilmed records]?
"Mr. Davis: The ISR will provide facilities for her.
"The Court: All right. You will provide facilities for her to review these records?
"Mr. Davis: Yes, but she can’t do it out of the presence of an ISR person because they’re the original documents. That’s the problem.
"The Court: That’s fine. I have no problem with that.
"Mr. Davis: Fine.
"The Court: She can do it at ISR and she can — there must be someone there when you do that.
"Ms. Cashel: All right. Thank you. Do you think we need an order?
"The Court: No. No, you don’t, but somehow or other she’s got to see these records, and I guess at this point I don’t really care if it’s going to take a person who sits with her and holds her hand or whatever.
"Ms. Cashel: No. I object to that, your Honor.
"The Court: It doesn’t make any difference whether— well, I can understand that.
"Mr. Davis: Except that if that results in unreasonably high costs to the Institute under the Statute—
"Ms. Cashel: Your Honor, there is no fee for reading and taking notes. You know that as well as I do.
"The Court: Let her do it. If it takes two people, let her do it. Get it over with.
"The Court: How long would you need?
"Ms. Cashel: I might need two or three months, your Honor.
"The Court: Oh, absolutely — you’ll have to pay for it, then. I couldn’t demand that the University have a person there that you [sic] have to pay for. That would be an unusual cost. I will give you two weeks. Two weeks.
"You see, I can’t order the University to have two employees at your beck and call for such a long period of time. I’m willing to order—
"Ms. Cashel: * * * That means I would have to probably make another Freedom of Information request, if you put a time limit on it.
"The Court: Well, all I can say is — no, I’m not putting any limit on it. I’m just saying—
"Ms. Cashel: Yes, but you’re telling me I have to be finished in two weeks.
"The Court: No, I’m not. I’m saying that they have to provide you with a person or persons, however many it takes, for a period of two weeks for eight hours a day. I’m ordering that somebody show you these records on microfilm. I’m not going to give you the original records.
"In other words, I couldn’t be responsible for a record —a whole history of something that happened at the University being lost.”
On December 14, 1983, the trial court signed an amended judgment which authorized the presence of an ISR representative while plaintiff viewed the requested records at the Institute for Social Research and at the purchasing office of the university. It also provided that if plaintiff viewed the records for longer than two weeks of eight-hour days at those locations she was to be assessed costs for labor.
Plaintiff first challenges the court’s authority to charge her labor costs if her examination exceeds two weeks. She points out, correctly, that the FOIA contains no requirement for the charging of a fee to view records unless the viewer requests a copy. MCL 15.234; MSA 4.1801(4).
This being a case of first impression in Michigan (or elsewhere so far as we can determine) it may help to review the purpose of the FOIA as set forth in its preamble:
"It is the public policy of this state that all persons are entitled to full and complete information regarding the aifairs of government and the official acts of those who represent them as public officials and public employees, consistent with the act. The people shall be informed so that they may fully participate in the democratic process.” MCL 15.231(2); MSA 4.1801(1)02).
FOIA confers upon the public the dual rights to inspect nonexempt public records and to obtain copies of such records.
"Sec. 3. (1) Upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by section 13. A person has a right to subscribe to future issuance of public records which are created, issued, or disseminated on a regular basis. A subscription shall be valid for up to 6 months, at the request of the subscriber, and shall be renewable.” MCL 15.233(1); MSA 4.1801(3)(1).
Likewise, the statute provides safeguards so as not to overburden the public body. Section 3 of the FOIA, quoted above, conditions a requester’s right to access upon receipt of a sufficient description of the document sought. MCL 15.233(2); MSA 4.1801(3X2) provides:
"(2) A public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records, and shall furnish reasonable facilities for making memoranda or abstracts from its public records during the usual business hours. A public body may make reasonable rules necessary to protect its public records and to prevent excessive and unreasonable interference with the discharge of its functions.”
MCL 15.234; MSA 4.1801(4), upon which plaintiff relies, states in pertinent part:
"Sec. 4. (1) A public body may charge a fee for providing a copy of a public record. Subject to subsection (3), the fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14.”
"(3) * * * A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. A public body shall establish and publish procedures, and guidelines to implement this subsection.”
While there is no case law on the question, the Attorney General has ruled that the provisions of the above section, including the authorization to charge an appropriate fee, apply only if the requester asks for a copy of the requested document, and we agree. OAG 1979-1980, No. 5,500, p 255 (July 23, 1979). Thus, authority for the imposition of labor costs after a two-week period, as the trial court ordered in the present case, must be found elsewhere in FOIA.
Plaintiff contends that, since she wishes to inspect defendants’ records rather than purchase copies, the trial court erred in entering an amended judgment which assesses her labor costs at the end of the two-week period.
It seems apparent that the drafters of FOIA did not contemplate a situation such as the present one, where a requester wishes to systematically examine, rather than copy, extremely large quantities of government records. The right to inspect created by FOIA seems to envision a brief perusal of certain files, followed by a request for copies of specific records found during this search. We do not believe that FOIA was enacted to allow private attorneys general, such as plaintiff, the right to conduct a full-scale audit of public body activity; the purpose of the act is to make information available to promote an informed citizenry. Plaintiff has estimated that it would take her several months of full-time work to review the information she requested. We believe that the trial court’s approach to plaintiffs request is more in line with the policy behind FOIA. Eighty hours of unlimited access to the records sought by plaintiff should allow her ample opportunity to uncover sufficient evidence of the wrongdoing she suspects to present to state and federal authorities for further investigation. While FOIA confers upon plaintiff a right to be informed, it does not follow that it grants her the right to open discovery and prosecution. Investigation by agencies funding the ISR is a more appropriate mechanism to undertake the broad review plaintiff seeks.
While promoting disclosure, FOIA does not require agencies to accede to overly burdensome information requests. The requirement of the act is one of reasonableness. Under its terms, a public body must furnish "a reasonable opportunity for inspection and examination of its public records” and "reasonable facilities for making memoranda or abstracts from its public records during the usual business hours”. It authorizes the promulgation of "reasonable rules” necessary "to prevent excessive and unreasonable interference with the discharge of [a public body’s] function”. MCL 15.233(2); MSA 4.1801(3)(2). In our opinion, the amended judgment in the present case satisfies this mandate. The two weeks allotted plaintiff at no charge seems a reasonable opportunity to examine the university’s records. The amended judgment, while not an agency rule, clearly was designed to prevent undue interference with the day-to-day operations of the university. Limiting plaintiff’s use of the university’s viewing and copying equipment, personnel, and office space for two weeks free of charge was not an abuse of discretion by the trial court.
Nor, in our opinion, does the provision of the amended judgment authorizing the university to have an ISR staff member on hand during plaintiff’s use of the university’s records amount to an abuse of discretion. The records plaintiff requested were on microfilm, the only remaining copies of original records. "A public body may make reasonable rules necessary to protect its public records * * MCL 15.233(2); MSA 4.1801(3)(2). Again, while not a rule promulgated by the public body, the trial judge’s amended judgment falls squarely within the statute. The university could not be reasonably expected to turn over its only existing copies of its records for plaintiff’s inspection without the presence of a staff member to assure their proper use and safe return.
Plaintiff next contends that the university’s conduct since the entry of the amended judgment has impeded her right to inspect the records she requested. The university contends that plaintiff should be barred from obtaining further disclosure because no public purpose would be served and because plaintiff may harass individuals whose names and addresses she uncovers during her investigation, thus triggering the FOIA’s privacy exception. Since both positions focus on post-judgment conduct of the parties and are not matters of record, they are not properly before this Court. The parties’ remedies are in the lower court.
Plaintiffs final claim of merit asks this Court to award her attorney fees, costs, disbursements and punitive damages. Although her amended complaint sought such relief, the judgment did not address her request. Therefore, the question is not properly before us.
The trial court is affirmed except as to the last issue, and this matter is remanded to the trial court to determine if plaintiff is entitled to attorney fees, costs, disbursements and punitive damages. See Penokie v Michigan Technological University, 93 Mich App 650, 666; 287 NW2d 304 (1979).
No costs will be allowed in this Court, a public question being involved.
"1 The word, active, refers to grants and contracts that still have a balance on which checks can be written; hence, records requested beginning January 1, 1970 could include records dated in the 1960’s if their accounts were still open on or after January 1, 1970. One condition of most grants is that the money be used up in one, two or three years, more or less.
"2 The word, subgrant, is a subcontract of a grant that goes outside the University of Michigan. The words, subgrant and subcontract, may be used synonymously.
"3 The word, subcontract, is a sub of a contract (or grant) that goes outside of the University of Michigan.
"4 The word, subproject, is a subcontract of a contract or a grant that stays within the University of Michigan for which an account may be set up for requisitions and checks to be written on.” | [
-15,
-76,
5,
1,
21,
41,
-4,
5,
-57,
5,
34,
-38,
55,
32,
-37,
19,
27,
27,
7,
-27,
-7,
-22,
1,
44,
25,
-22,
60,
-7,
1,
-14,
20,
-50,
-31,
-28,
-19,
-24,
72,
1,
34,
8,
-21,
-15,
-7,
-18,
-25,
-45,
21,
-17,
57,
-27,
16,
42,
-4,
-5,
17,
-21,
9,
-47,
-30,
-28,
-33,
9,
96,
30,
34,
40,
-2,
-9,
-18,
-32,
-10,
5,
2,
-20,
-62,
-31,
41,
53,
-12,
52,
-13,
-15,
15,
35,
11,
-21,
11,
-21,
34,
-21,
-52,
-75,
-54,
-23,
13,
9,
20,
-82,
30,
22,
-6,
71,
24,
16,
78,
36,
4,
-22,
-1,
-62,
-2,
-42,
-22,
-7,
-37,
-47,
-25,
72,
28,
-24,
-85,
19,
-9,
11,
17,
2,
-5,
-40,
23,
33,
-25,
-3,
-63,
27,
-5,
19,
34,
23,
32,
-6,
-29,
-25,
39,
-3,
-6,
16,
-9,
-11,
56,
-41,
-12,
-27,
31,
55,
-11,
13,
-19,
2,
31,
5,
23,
35,
-35,
-41,
27,
-21,
-16,
25,
87,
-32,
-6,
11,
-10,
-8,
-24,
-32,
-32,
16,
0,
12,
-35,
56,
53,
-13,
-39,
7,
25,
-39,
-21,
12,
20,
-15,
4,
-5,
12,
21,
-22,
46,
37,
-43,
-2,
-30,
49,
-22,
29,
-21,
12,
-98,
-48,
45,
23,
16,
10,
-34,
2,
-80,
-21,
2,
10,
33,
-12,
27,
-19,
-39,
-6,
34,
14,
21,
-58,
-41,
-15,
60,
8,
-37,
6,
24,
18,
32,
32,
-26,
-37,
27,
6,
-29,
-25,
-13,
-7,
-17,
-6,
-4,
13,
10,
-28,
-31,
-27,
-36,
28,
18,
-15,
-6,
-5,
26,
-8,
20,
-29,
-6,
-31,
15,
-52,
-5,
-55,
2,
-4,
-46,
0,
-34,
-24,
-32,
-4,
1,
-6,
-15,
-22,
-16,
0,
5,
-24,
34,
-7,
22,
60,
-2,
-77,
-13,
55,
-15,
-6,
-60,
-4,
18,
-23,
-6,
18,
-17,
-26,
-36,
4,
0,
-25,
-40,
39,
5,
1,
-5,
24,
-25,
-20,
-13,
67,
20,
-4,
-9,
-2,
38,
15,
1,
49,
-39,
-13,
38,
-27,
26,
0,
42,
47,
0,
-2,
-9,
18,
-13,
17,
39,
0,
3,
-18,
-12,
-42,
-1,
-8,
24,
42,
71,
-22,
46,
-17,
4,
4,
22,
-25,
34,
6,
42,
14,
-31,
5,
12,
-44,
5,
37,
20,
-48,
-50,
17,
31,
13,
-23,
56,
-27,
20,
-1,
-52,
-28,
38,
18,
7,
-6,
-37,
-6,
-11,
-61,
-29,
-9,
-9,
-2,
-23,
-83,
58,
77,
-7,
20,
40,
-20,
18,
35,
-8,
12,
11,
9,
12,
36,
0,
25,
40,
15,
-23,
14,
52,
-32,
57,
-39,
-16,
-16,
-66,
-15,
8,
-5,
41,
50,
6,
56,
-28,
0,
11,
-47,
-32,
32,
-50,
-10,
0,
-5,
47,
13,
-47,
4,
-54,
-1,
2,
-49,
7,
-23,
27,
45,
-3,
-11,
-58,
8,
49,
-43,
-63,
2,
-28,
9,
2,
-18,
-34,
32,
5,
16,
2,
18,
-1,
15,
-41,
-5,
-35,
-47,
0,
-6,
-14,
13,
20,
15,
8,
-2,
-42,
49,
-13,
19,
-42,
24,
-24,
-11,
-26,
27,
1,
81,
-28,
-25,
0,
0,
-4,
-13,
-13,
49,
67,
-13,
43,
-58,
1,
15,
2,
-61,
7,
39,
-35,
51,
-8,
-44,
-9,
14,
-40,
0,
17,
-16,
-29,
-17,
42,
-9,
-1,
59,
4,
11,
48,
-84,
-20,
-16,
-7,
23,
-17,
20,
7,
-7,
-3,
48,
23,
-26,
20,
10,
0,
-14,
-4,
-20,
-22,
22,
-31,
-3,
46,
0,
-4,
-47,
-65,
-37,
16,
-25,
1,
-26,
-25,
-7,
-1,
2,
49,
52,
34,
-59,
-7,
46,
30,
25,
-11,
3,
37,
11,
33,
-27,
4,
-29,
58,
-9,
18,
-38,
-38,
-13,
-15,
-44,
4,
-40,
-59,
-45,
51,
17,
43,
-19,
-19,
16,
-44,
-17,
9,
37,
4,
-57,
30,
-47,
-5,
-24,
2,
-27,
-34,
-24,
56,
1,
-7,
-42,
11,
-9,
54,
-12,
-5,
43,
11,
4,
16,
-8,
14,
14,
50,
-2,
-26,
-8,
13,
20,
0,
17,
-15,
4,
5,
-22,
46,
-36,
-22,
48,
27,
12,
42,
-23,
-17,
-25,
38,
-44,
43,
-7,
6,
-17,
-39,
33,
45,
45,
5,
-21,
82,
-2,
17,
24,
-11,
11,
22,
-15,
-19,
-33,
-18,
-28,
-55,
41,
-5,
37,
8,
-1,
9,
-8,
-27,
8,
48,
-1,
-28,
37,
36,
-75,
19,
21,
29,
51,
-1,
20,
-7,
28,
-42,
-14,
-71,
0,
-56,
90,
-19,
-14,
4,
9,
-24,
-14,
15,
12,
-26,
-57,
-29,
-13,
8,
-29,
-64,
-26,
-13,
40,
25,
-3,
-9,
-11,
23,
-2,
-23,
-4,
-4,
-2,
-11,
0,
28,
69,
9,
-83,
-49,
-4,
18,
4,
-34,
43,
1,
-24,
-39,
52,
-62,
39,
-16,
2,
15,
2,
15,
15,
-17,
-91,
-19,
10,
-14,
14,
32,
5,
-22,
-20,
9,
23,
-66,
-20,
-8,
28,
63,
-4,
43,
4,
-42,
15,
61,
-19,
-17,
-67,
2,
24,
-10,
-13,
18,
-33,
12,
75,
-2,
22,
-7,
-23,
-8,
-5,
22,
5,
8,
3,
-36,
6,
7,
-2,
-32,
25,
20,
-52,
-18,
12,
2,
-26,
-25,
-43,
2,
1,
-25,
78,
-82,
-15,
-18,
-19,
-11,
9,
10,
-7,
8,
4,
28,
-19,
-6,
4,
-11,
-14,
-18,
-34,
-12,
-14,
-5,
39,
-32,
3,
21,
28,
18,
-10,
39,
-4,
-9,
31,
10,
-36,
8,
39,
5,
42,
9,
16,
23,
65,
-17,
-19,
58,
10,
-34,
32,
12,
32,
-54,
2,
-3,
-21,
15,
-52,
45,
47,
7,
-44,
-6,
4,
41,
36,
25,
-27,
3,
16,
11,
26,
3,
-24,
26,
-53,
12,
3,
23,
-11,
10,
40,
23,
72,
17,
28,
-20,
-11,
-22,
-9,
7,
-9,
-9,
-44,
-28,
2,
70,
-21,
43,
41,
-29,
-32,
10,
-5,
41,
0,
-73,
17,
55,
-20,
-3,
-1,
49,
-13,
43,
-28,
56,
27,
-38,
-26,
-18,
8,
-16,
12,
-71,
-13,
10,
-26,
4,
-73,
-22,
53,
-33,
62,
-8,
37,
34,
-25,
-14,
22,
-10,
11,
-23,
-21,
-44,
-34,
50,
67,
-11,
-17,
-9,
-13,
20,
-17,
-23,
30,
23,
-28,
32,
-63,
-24,
8,
45,
24,
-14,
-20,
30,
-31,
67,
-26,
-25,
-32,
8,
-16,
-37,
51,
44,
12,
-9,
-29,
13,
27,
-49,
-44,
-1,
-29,
-15,
31,
26,
-29,
-9,
-18,
43,
-2,
16,
-9,
-34,
33,
-29,
15,
0,
55
] |
Per Curiam.
Petitioner appeals as of right from an order by the circuit court which affirmed a Department of Corrections hearing officer’s finding of a major misconduct violation.
Petitioner is an inmate at the State Prison of Southern Michigan. On September 27, 1983, he was issued a major misconduct violation after a container of dried bleach was found in his cell. Petitioner brought a petition for judicial review of the final administrative decision in accordance with MCL 24.301 et seq.; MSA 3.560(201) et seq. The circuit court dismissed his petition based in part on lack of jurisdiction.
Petitioner’s position is that the directive under which he was charged with misconduct was not promulgated in conformity with the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. We disagree. Not all prison disciplinary directives are subject to the rule-making provisions of the APA. Excluded from the APA are:
"An intergovernmental, interagency or intra-agency memorandum, directive or communication which does not affect the rights of, or procedures and practices available to, the public.” MCL 24.207(g); MSA 3.560(107)(g).
In Schinzel v Dep’t of Corrections, 124 Mich App 217; 333 NW2d 519 (1983), this Court noted that, where a policy directive affected the rights of the public, the policy directive in question was required to comply with the APA. Petitioner’s case is different than Schinzel. The prison directive in question affects only persons under the jurisdiction of the Department of Corrections. It does not affect members of the general public as the directive at issue in Schinzel did. Because the directive in question does not affect the rights of the public as suggested by the tenor of MCL 24.207(g); MSA 3.560(107)(g), the directive is not subject to the APA. Intra-agency directives need not strictly comply with the rule-making procedures of the APA. The circuit court ruling is affirmed.
Affirmed. | [
20,
-67,
-40,
40,
-38,
41,
-25,
-56,
-75,
73,
-54,
26,
3,
-15,
-15,
-42,
51,
68,
-65,
36,
82,
29,
32,
127,
-22,
11,
21,
24,
20,
19,
-18,
19,
6,
-12,
15,
-45,
45,
6,
74,
20,
3,
-37,
-4,
-44,
-64,
-14,
20,
38,
53,
15,
-11,
66,
-12,
24,
-9,
-3,
35,
-33,
-14,
33,
-84,
23,
-12,
-40,
32,
-3,
-15,
33,
9,
-36,
-9,
-24,
-46,
-24,
4,
-8,
38,
17,
-13,
33,
0,
17,
1,
62,
29,
36,
-12,
-25,
33,
30,
5,
-8,
-67,
-71,
1,
22,
47,
-23,
33,
-23,
5,
16,
1,
30,
-50,
-5,
68,
4,
23,
-17,
9,
18,
-61,
-17,
14,
-10,
46,
23,
55,
16,
22,
16,
7,
32,
11,
-27,
53,
-4,
-7,
12,
0,
37,
-20,
-11,
-36,
39,
35,
14,
19,
-13,
-34,
-64,
74,
-45,
63,
-8,
-19,
17,
23,
-36,
-36,
-33,
-1,
15,
-53,
52,
-3,
8,
-72,
24,
19,
36,
-44,
-13,
24,
5,
-16,
-25,
17,
-10,
45,
54,
23,
50,
-10,
-36,
3,
40,
30,
9,
-65,
2,
23,
-51,
-8,
56,
9,
-33,
-73,
-14,
-9,
12,
29,
-11,
42,
-40,
3,
106,
38,
-27,
-27,
42,
52,
22,
17,
-16,
-22,
14,
-42,
-24,
20,
0,
-5,
14,
25,
-49,
9,
-34,
-15,
35,
-23,
-14,
-2,
-54,
0,
-10,
14,
27,
-43,
-41,
40,
-14,
35,
30,
-17,
11,
14,
-2,
68,
-1,
-9,
68,
-38,
-9,
43,
0,
-19,
0,
32,
-6,
27,
18,
7,
-28,
1,
-42,
-31,
11,
-54,
-13,
32,
6,
13,
46,
-40,
0,
-24,
-23,
-24,
13,
-3,
36,
-38,
-48,
-19,
24,
12,
11,
10,
-48,
24,
10,
50,
25,
-54,
-15,
0,
3,
-17,
1,
37,
-34,
-41,
23,
26,
8,
-3,
-23,
1,
-16,
10,
22,
-3,
-35,
-11,
-14,
-22,
18,
46,
-33,
7,
15,
-35,
-5,
-3,
-30,
16,
-6,
34,
-30,
-90,
-22,
0,
-36,
-1,
-48,
47,
-8,
12,
-29,
16,
-5,
-10,
53,
36,
47,
-31,
25,
-19,
-5,
-3,
-2,
16,
-15,
-6,
3,
8,
8,
-21,
-35,
24,
51,
11,
26,
-40,
40,
-27,
-52,
-71,
0,
-21,
21,
-35,
-4,
-5,
23,
-22,
9,
44,
12,
-1,
-34,
4,
-32,
-10,
40,
54,
-17,
18,
0,
-26,
46,
8,
-2,
2,
-57,
-58,
22,
43,
0,
-52,
-78,
-41,
1,
-76,
-17,
55,
69,
40,
21,
9,
-33,
-16,
43,
38,
0,
-11,
23,
-42,
29,
-29,
35,
21,
46,
-30,
54,
23,
-35,
67,
-53,
-13,
-20,
-17,
-73,
-7,
0,
-30,
37,
-41,
23,
-40,
-51,
-1,
-28,
-17,
-21,
-76,
-39,
24,
0,
-12,
-2,
-64,
-20,
28,
-56,
4,
-1,
-16,
-41,
30,
-5,
-45,
-35,
-21,
32,
-11,
-19,
-80,
-40,
-22,
-22,
-33,
-18,
12,
1,
-46,
6,
45,
-14,
3,
10,
-42,
37,
-16,
-44,
-47,
35,
36,
16,
34,
21,
-36,
-42,
17,
14,
4,
-15,
-22,
15,
-29,
3,
-9,
-23,
25,
0,
4,
31,
-9,
16,
39,
1,
-30,
36,
26,
-36,
46,
-1,
44,
3,
12,
0,
10,
48,
10,
-4,
-13,
-109,
14,
37,
49,
-40,
42,
-10,
27,
10,
-19,
-29,
1,
23,
42,
-22,
25,
-13,
49,
-18,
-4,
-36,
-23,
4,
22,
-32,
-1,
42,
35,
-10,
-23,
-19,
15,
-17,
11,
-15,
-6,
-29,
25,
-12,
-35,
90,
29,
-8,
-10,
26,
7,
38,
-14,
21,
-51,
47,
29,
-14,
43,
19,
-49,
-49,
17,
17,
65,
27,
20,
-25,
0,
9,
-15,
13,
0,
-45,
-10,
-30,
19,
-33,
-78,
-1,
6,
-8,
-4,
-11,
-7,
-29,
58,
58,
6,
36,
13,
-14,
-2,
-6,
24,
28,
-12,
-5,
35,
-56,
-40,
-12,
-54,
48,
-15,
-2,
-28,
13,
-83,
-7,
-4,
10,
-13,
-32,
-12,
-13,
15,
10,
17,
8,
0,
-38,
3,
20,
-43,
-19,
8,
17,
37,
29,
-21,
-5,
30,
21,
64,
13,
0,
13,
15,
32,
-53,
6,
21,
-19,
-42,
-26,
-9,
-11,
-29,
22,
-54,
31,
43,
-12,
-35,
-12,
16,
-1,
26,
84,
-43,
36,
-5,
3,
0,
-23,
-6,
-21,
-96,
13,
-13,
1,
34,
-19,
0,
25,
4,
33,
17,
10,
46,
-12,
35,
-39,
-33,
19,
7,
-12,
21,
-10,
-7,
14,
-7,
-28,
-33,
-20,
-28,
-3,
-39,
-13,
0,
22,
0,
-29,
8,
-27,
-10,
-12,
-53,
5,
11,
-1,
31,
-2,
-29,
2,
0,
-24,
-57,
3,
37,
32,
-25,
31,
-43,
41,
-5,
1,
52,
21,
-72,
-38,
-36,
26,
17,
7,
0,
7,
18,
-24,
-14,
14,
-72,
3,
45,
-13,
-62,
36,
-29,
23,
-67,
11,
-30,
-30,
-19,
-1,
12,
3,
52,
0,
-5,
-7,
-53,
-13,
29,
-8,
-13,
0,
-51,
29,
-59,
9,
-18,
16,
-35,
-69,
-36,
-22,
-38,
8,
-7,
-2,
27,
36,
51,
5,
-14,
0,
55,
-12,
24,
-75,
-55,
0,
-3,
-32,
-8,
8,
-5,
20,
-28,
36,
17,
16,
0,
14,
0,
-20,
1,
35,
-14,
40,
-4,
2,
38,
-48,
-6,
24,
0,
63,
22,
42,
15,
-36,
5,
14,
-6,
8,
4,
-21,
32,
-16,
29,
17,
7,
-1,
55,
30,
31,
-46,
-36,
16,
40,
52,
16,
-3,
30,
0,
-15,
47,
13,
-19,
-10,
44,
-13,
-41,
21,
10,
-59,
-18,
78,
1,
-43,
4,
-26,
-2,
-17,
20,
40,
-43,
14,
-8,
76,
-6,
-9,
-13,
0,
-46,
11,
38,
-46,
4,
-52,
4,
24,
-1,
14,
-59,
31,
-7,
28,
-18,
23,
47,
9,
25,
-5,
-22,
-83,
2,
9,
19,
23,
25,
-30,
50,
46,
-20,
-37,
46,
46,
-12,
-52,
17,
9,
-23,
0,
2,
-6,
-32,
22,
-30,
-33,
4,
13,
14,
9,
-7,
-15,
-16,
-38,
29,
-31,
21,
-57,
-29,
10,
-4,
-9,
-12,
15,
-20,
-28,
44,
0,
34,
-40,
-36,
-10,
-9,
-33,
32,
-34,
-32,
5,
-51,
-14,
6,
-64,
-39,
34,
-12,
28,
9,
-40,
36,
-9,
27,
-20,
-34,
-29,
8,
-39,
22,
-44,
36,
1,
-47,
25,
-11,
0,
48,
2,
23,
-7,
10,
1,
48,
54,
12,
-20,
21,
9,
49,
-5,
-24,
-35,
39,
35,
15,
35,
-3,
27,
-3,
-17,
40,
-75,
2,
-27,
-29,
-41,
19
] |
Per Curiam.
In Docket Nos. 63002, 63003 and 63540, the Attorney General appeals as of right from orders of February 18, 1982, and March 24, 1982, of Ingham County Circuit Court Judge Robert Holmes Bell which affirmed seven Michigan Public Service Commission orders granting rate relief to Consumers Power Company. In Docket No. 63010, Dow Chemical Company appeals as of right from a February 18, 1982, order of Judge Bell which affirmed the July 31, 1978, order of the commission which established an "Other Operations and Maintenance Expense Indexing System” (Other O & M Indexing System). These appeals raise seven issues which will be discussed seriatim.
The first issue raised by the Attorney General challenges the legality of the "System Availability Incentive Provision” (SAIP). This panel has recently found a similar provision concerning The Detroit Edison Company lawful in Attorney General v Public Service Comm #2, 133 Mich App 790; 350 NW2d 320 (1984). We adopt here what we said there, and affirm.
The second issue challenges the legality of the Other O & M Indexing System. This issue was also recently addressed by this panel in the case of Attorney General v Public Service Comm #1, 133 Mich App 719; 349 NW2d 539 (1984). We find this issue to be without merit for the reasons given in that opinion.
In his third issue, the Attorney General contends that the differential monthly service charges for residential customers for "principal” residence and for "alternate” residence established by the commission in its July 31, 1978, final rate order in Case No. U-5331 constitutes unlawful rate discrimination.
We find this issue to be without merit. The findings of the commission in support of this portion of that order are sufficiently well supported by evidence in the record, as found by Judge Bell. The service charge increase does not violate MCL 460.557; MSA 22.157 because that section only prohibits discrimination between customers receiving "like contemporaneous service rendered under similar circumstances and conditions”. We find record support for the commission’s finding that the providing of electric service to a temporary, alternate or seasonal residence is different from providing service to a permanent resident, with respect to their use of energy, and the yearly amount of energy consumed. We agree with the commission that giving this class of customers different rate treatment in order to equitably apportion the cost of providing electric service does not constitute unlawful discrimination.
In his fourth issue the Attorney General argues that the commission erred in its final order of Case No. U-5331 of July 31, 1978, by including in the electric rate base a "working capital allowance” of $108,946,000, arrived at by use of a formula involving one-eighth of annual operating and maintenance expenses. He argues that the "allowance” should be based instead on the actual amount of working capital shown on the company’s books for the prior year.
We find this argument to be without merit for the reasons given in the case of Attorney General v Public Service Comm #2, 136 Mich App 515; 358 NW2d 351 (1984), and for the reasons given by the commission and by Judge Bell in his opinion of February 18, 1982.
In his fifth issue, the Attorney General argues that the commission acted unlawfully on March 3, 1978, in Case No. U-5331, in granting interim rate relief in the amount of $15,212,000 to Consumers because, he alleges, the order failed to explain why interim relief was granted and why emergency relief was needed. We disagree, and find the order to be both lawful and reasonable. Attorney General v Public Service Comm, 63 Mich App 69; 234 NW2d 407 (1975), lv den 395 Mich 779 (1975); City of Grosse Pointe v Public Service Comm, 93 Mich App 596, 598; 287 NW2d 1 (1979), and Great Lakes Steel Division of National Steel Corp v Public Service Comm, 416 Mich 166; 330 NW2d 380 (1982). The issue is without merit.
Finally, the Attorney General requests that this Court order refunds to customers to be determined on remand by the Ingham County Circuit Court. We decline to address this issue for the reason that we find the orders appealed from to be lawful and reasonable.
In summary we affirm Judge Bell’s orders in all respects.
In Docket No. 63010, Dow Chemical Company argues that the surcharge mechanism incident to the Other O & M Indexing System in MPSC Case No. U-5331, dated July 31, 1978, is unjust and discriminatory in its impact upon "high load factor” ' customers. Dow argues that the indexing system is defective in its impact upon such customers because the commission refused to admit into the record evidence of cost responsibility and because the order fails to explain why its rate design is reasonable, thus violating MCL 24.285; MSA 3.560(185).
We have elsewhere upheld the Other O & M Indexing System. See above. We agree with the commission that it is vested with complete power to regulate utilities and utility rates, MCL 460.6; MSA 22.13(6) and MCL 460.552; MSA 22.152, and that the uniform kilowatt hour (kwh) surcharge question is clearly a legislative determination, which involves judgment and discretion on the part of the commission. It results in all customers paying the same charge per kwh and is not discriminatory. Legislative policy determinations by the commission, when properly made, as this one was, are not reviewable by the courts. The Detroit Edison Co v Public Service Comm, 82 Mich App 59, 67; 266 NW2d 665 (1978), and the cases cited therein. See, also, Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624, 644-645; 209 NW2d 210 (1973) (Williams, J., dissenting). Likewise we find that the findings of the commission at pages 114-122 of its opinion and order of July 31, 1978, fully satisfy the requirements of MCL 24.285; MSA 3.560(185). This issue is without merit.
Affirmed. | [
-22,
21,
2,
22,
6,
7,
-14,
-20,
10,
32,
25,
8,
39,
-37,
-2,
-19,
0,
27,
14,
8,
26,
-11,
35,
19,
-84,
14,
-7,
0,
-12,
17,
-8,
-27,
-24,
-37,
3,
-27,
2,
46,
-3,
-31,
-20,
-47,
29,
-22,
-39,
-15,
12,
2,
0,
-63,
-29,
61,
-13,
1,
-8,
-18,
-10,
-41,
-12,
14,
-51,
12,
22,
-6,
32,
26,
13,
55,
38,
20,
10,
35,
-22,
6,
35,
43,
-4,
-35,
-31,
-9,
-93,
-23,
5,
-12,
30,
-6,
7,
-21,
13,
20,
-42,
-22,
-36,
-6,
24,
34,
-28,
6,
37,
2,
-47,
0,
5,
39,
13,
-9,
32,
-20,
16,
-7,
45,
-12,
-74,
-45,
-50,
8,
5,
0,
24,
19,
-22,
-16,
0,
20,
-19,
-19,
39,
-24,
-55,
-3,
-27,
87,
26,
11,
33,
25,
36,
0,
64,
28,
-21,
-28,
42,
21,
43,
-5,
38,
-23,
20,
-3,
27,
-5,
31,
36,
-27,
2,
16,
-32,
20,
-3,
-4,
-6,
-3,
-23,
-68,
-17,
-16,
30,
2,
3,
20,
-1,
18,
-20,
6,
-30,
-18,
56,
0,
6,
-28,
-14,
-14,
-9,
26,
25,
19,
-70,
18,
-61,
38,
-21,
45,
-19,
-41,
41,
68,
65,
-34,
18,
-33,
-52,
8,
26,
30,
-49,
-38,
-9,
-30,
-17,
13,
50,
-9,
-46,
23,
48,
-44,
12,
11,
14,
9,
-26,
3,
8,
-39,
-44,
-16,
3,
7,
-26,
43,
-29,
45,
-20,
-26,
60,
28,
36,
63,
1,
-29,
15,
-1,
-16,
-60,
0,
0,
-28,
-24,
-1,
-22,
-65,
4,
3,
-7,
-20,
-6,
6,
-13,
-3,
6,
0,
-1,
19,
-6,
50,
-24,
-47,
28,
-26,
-36,
43,
20,
37,
-42,
-22,
16,
-49,
42,
-48,
-4,
-7,
8,
3,
-25,
25,
46,
-19,
-33,
-25,
24,
-19,
39,
25,
39,
-2,
5,
8,
-40,
-3,
-61,
-7,
1,
-15,
10,
20,
-1,
2,
6,
47,
0,
3,
28,
-25,
7,
-35,
17,
5,
46,
-9,
18,
-1,
15,
9,
-37,
-43,
29,
-15,
-2,
-50,
-36,
-8,
3,
-1,
-1,
31,
-6,
-10,
5,
-5,
4,
23,
24,
45,
2,
-21,
13,
-9,
13,
-17,
-69,
44,
-30,
13,
24,
25,
18,
-12,
-59,
42,
14,
12,
-19,
-16,
-53,
10,
0,
-10,
27,
21,
26,
-9,
-41,
39,
2,
45,
6,
-8,
1,
4,
12,
-2,
3,
-12,
9,
29,
-11,
67,
-41,
-8,
-29,
-13,
-17,
16,
7,
-20,
33,
-3,
-7,
-6,
72,
7,
-14,
32,
45,
-19,
-5,
-8,
10,
47,
-9,
-33,
10,
6,
-33,
43,
27,
-8,
47,
13,
22,
18,
-1,
-40,
36,
-26,
-26,
39,
5,
68,
-52,
-4,
2,
-52,
-26,
11,
-9,
-56,
-73,
2,
29,
26,
-14,
12,
-2,
-50,
-36,
-13,
32,
-7,
25,
17,
12,
-2,
-57,
0,
24,
-48,
-55,
-13,
-16,
-13,
-11,
-48,
-8,
-16,
-5,
78,
31,
-33,
-64,
37,
-7,
22,
1,
-19,
-27,
0,
-2,
0,
-14,
8,
-17,
-14,
-52,
-24,
4,
-1,
-19,
15,
38,
-11,
-26,
-54,
33,
11,
-10,
-9,
22,
-15,
22,
-65,
9,
-2,
-14,
-42,
-3,
28,
-2,
-13,
34,
-27,
8,
31,
-19,
-4,
56,
13,
-2,
31,
-19,
-37,
-5,
-6,
10,
28,
-4,
-17,
48,
-20,
22,
-15,
42,
-76,
15,
-9,
28,
41,
-10,
-35,
18,
48,
-46,
32,
26,
-18,
-36,
-13,
32,
-47,
-2,
-24,
-88,
-24,
-27,
41,
-37,
12,
-20,
-10,
-35,
-3,
24,
-18,
-9,
20,
-38,
2,
59,
-27,
-5,
29,
39,
-21,
51,
31,
26,
-43,
-31,
2,
19,
-12,
-18,
-26,
-36,
-36,
25,
4,
21,
7,
25,
-22,
-19,
8,
45,
6,
5,
-25,
2,
-61,
16,
8,
-25,
3,
38,
33,
-9,
39,
39,
-34,
42,
3,
3,
-55,
-1,
39,
-8,
-14,
10,
-13,
32,
-7,
23,
3,
36,
8,
20,
-19,
-36,
6,
51,
-31,
-11,
-28,
30,
-7,
44,
6,
0,
13,
9,
7,
-5,
-11,
31,
50,
-18,
37,
32,
-13,
35,
60,
17,
-20,
-4,
5,
4,
-11,
-18,
-54,
-19,
-9,
28,
60,
-24,
8,
-11,
-53,
55,
-42,
-1,
35,
-7,
-32,
28,
-41,
-12,
-22,
12,
12,
-48,
25,
-48,
-46,
-7,
12,
8,
34,
-22,
-26,
6,
-9,
-17,
-12,
4,
-39,
-2,
-19,
-3,
3,
-11,
11,
40,
28,
-79,
39,
-10,
-36,
4,
38,
19,
-41,
36,
6,
37,
10,
-21,
-16,
-17,
-58,
-7,
-24,
-21,
7,
-23,
8,
-38,
-43,
-58,
-15,
-51,
28,
19,
-5,
-7,
21,
-42,
-40,
-59,
43,
27,
46,
23,
-18,
-20,
-26,
19,
14,
20,
42,
-7,
-32,
32,
18,
-19,
-17,
-19,
-14,
-14,
-8,
19,
-38,
30,
41,
25,
0,
10,
-17,
39,
-35,
8,
12,
-19,
9,
27,
-1,
-42,
-34,
-23,
-13,
-20,
18,
-9,
-31,
1,
-36,
-2,
-30,
-41,
-40,
-17,
-25,
47,
-56,
18,
48,
16,
50,
52,
-43,
-15,
39,
-5,
-49,
-19,
37,
-18,
-54,
6,
-4,
20,
-12,
11,
-21,
60,
-19,
-10,
11,
-60,
8,
3,
25,
-31,
34,
-43,
-7,
-8,
45,
-12,
24,
34,
50,
-29,
44,
3,
36,
5,
52,
35,
14,
2,
-38,
-36,
14,
-37,
35,
-25,
17,
-1,
-32,
0,
-12,
-36,
-20,
94,
29,
-12,
11,
46,
-16,
-1,
73,
-14,
7,
-2,
-42,
-35,
35,
2,
18,
-6,
11,
25,
-46,
5,
-44,
-15,
13,
9,
-42,
-1,
-39,
35,
-45,
58,
-8,
23,
28,
3,
39,
60,
-23,
-49,
13,
-10,
-15,
-5,
36,
18,
29,
-9,
39,
-5,
15,
-35,
110,
-11,
-39,
-78,
1,
27,
13,
0,
15,
-40,
12,
16,
-7,
34,
45,
9,
5,
-18,
-13,
-23,
3,
25,
-36,
-15,
-1,
9,
-9,
16,
33,
57,
-34,
13,
13,
-5,
27,
-41,
7,
0,
-32,
-26,
-14,
-47,
15,
7,
3,
-22,
-48,
-7,
29,
-25,
4,
-43,
26,
-13,
-28,
-70,
12,
52,
-3,
17,
-13,
43,
-24,
-28,
-3,
11,
-9,
5,
-50,
-2,
-1,
-12,
-11,
33,
-8,
-28,
-12,
33,
3,
20,
15,
-51,
13,
-17,
28,
43,
21,
30,
-17,
7,
-33,
-34,
60,
64,
-6,
48,
30,
0,
16,
-16,
19,
55,
-14,
27,
12,
-25,
-13,
-48,
44,
51,
-6,
-6,
-14,
-19,
-37,
46,
4,
-69,
20
] |
Per Curiam.
Plaintiffs appeal as of right from the order that granted defendants’ motion for summary judgment pursuant to GCR 1963, 117.2(1). Plaintiffs consist of the Michigan State Employees Association, Ron Holley, the president of MSEA, and John Lewis, who is a member. Ten defendants named include the Michigan Civil Service Commission (CSC); the State Personnel Director, John F. Hueñi, Jr.; the Michigan Department of Civil Service; the Michigan Department of Management and Budget; the Michigan Department of Transportation; and a Deputy Director of the Department of Transportation, Gerald J. McCarthy.
The plaintiffs are challenging the constitutionality of two of the CSC’s actions. Plaintiffs contend that allowing the state to contract out for personal services whenever there would be a substantial long-term savings to the state as compared with having the service performed by classified state employees is in violation of Const 1963, art 11, § 5. Additionally, plaintiffs believe that their due process rights have been violated, as the CSC has disregarded the collective-bargaining agreement. On appeal plaintiffs are attempting to show a claim upon which relief can be granted.
Our standard of review requires us to give every benefit of any reasonable doubt to the opposing party and be satisfied that there is no possibility that such claim can arise. Freeman v Colonial Penn Ins Co, 138 Mich App 444; 361 NW2d 356 (1984). Plaintiffs’ argument is based on Const 1963, art 11, § 5, which provides, inter alia, that:
"Sec. 5. The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. The civil service commission may exempt three additional positions of a policy-making nature within each principal department.”
Plaintiffs contend that this requires all positions in the state service to be within the classified civil service as long as it is feasible. MSEA believes that allowing the state to contract out when "[t]he service would be performed at substantial long-term savings to the state when compared with having the service performed by classified employees” is a violation of art 11, § 5. This clause was just recently added to the list of circumstances in which the CSC could contract for personal services. Procedure for Requesting Use of Contractual Personal Service, § IV D (November 3, 1982). The other reasons that allow for contracting out are that the services are temporary or intermittent, that the services are uncommon to state employment, or that the equipment and materials necessary are not possessed by the state and the cost of procurement would be disproportionate to the contract cost. Plaintiffs believe that this additional provision will result in numerous positions being removed from the civil service classification contrary to the intent of art 11, § 5.
"In interpreting this constitutional amendment, we must examine its historical context and the arguments employed by its proponents. Civil Service Comm v Auditor General, 302 Mich 673, 681; 5 NW2d 536 (1942). One of the primary reasons for the civil service amendment was to discontinue the 'spoils system’, under which public employment was the reward for political work. Permitting the use of contractual personal services where it is neither feasible nor practical to establish a classified position to perform the required service, subject to Civil Service Commission approval, implements this intention. Approval or disapproval of the personal services remains with the Civil Service Commission.” Detroit Automobile Inter-Insurance Exchange v Comm’r of Ins, 125 Mich App 702, 711-712; 336 NW2d 860 (1983), lv den 418 Mich 865 (1983).
Plaintiffs have not alleged that there was any bad faith or an attempt to reintroduce the "spoils system” on the part of defendants. Nor have plaintiffs been able to show that even one layoff has been attributed to the new provision. We can find no requirement that all who provide services for the state must be in a civil service position. Reed v Civil Service Comm, 301 Mich 137, 158; 3 NW2d 41 (1942). Rather, we find the Civil Service Commission to be vested with plenary power in its sphere of authority. Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 408; 292 NW2d 442 (1980). Article 11, § 5 also provides in part that ''[positions shall not be created nor abolished except for reasons of administrative efficiency”.
Accordingly, we hold that allowing CSC to utilize independent contractors does not violate the Michigan Constitution. A long-term substantial economic savings to the state does not violate the intent or purposes of the civil service act. In Michigan, before a civil service position may be abolished, good faith must be established by a showing that the position is to be abolished for reasons of efficiency and economy. Hutchinson v Dep’t of Mental Health, 108 Mich App 725, 731; 310 NW2d 856 (1981), lv den 413 Mich 929 (1982). We find no harm to the civil service by virtue of this additional reason to hire independent contractors.
Plaintiffs’ final argument alleges that their due process rights are violated by the amendment to the Employee Relations Policy which prohibits any collective-bargaining agreements that limit independent contracting. This argument is meritless. There is no constitutional right to collective bargaining by civil service employees. Welfare Employees Union v Civil Service Comm, 28 Mich App 343, 352; 184 NW2d 247 (1970), lv den 384 Mich 824 (1971).
As plaintiffs have not alleged any error in the adoption of this amendment, we assume that all procedures were properly followed. It is clear that the CSC may amend its rules.
"An administrative agency may amend, rescind or suspend its rules and regulations. Agencies may also have discretion to suspend a rule or regulation pending its administrative review. An administrative agency does not exhaust its power to make rules and regulations by having made a particular enactment. It may modify or repeal its rules and regulations, 2 Am Jur 2d, Administrative Law, §§ 309, 310.” International Union of Civil Rights & Social Service Employees v Michigan Civil Service Comm, 57 Mich App 526, 530; 226 NW2d 550 (1975).
Therefore, we affirm the circuit court’s holding.
Affirmed.
Each member of the commission has been named individually as well. They are: Michael A. Dively, John F. Dodge, Jr., Walter R. Green and Harriet B. Rotter. | [
60,
-19,
-35,
18,
25,
35,
-13,
-3,
-17,
28,
37,
-31,
55,
-3,
18,
-55,
23,
54,
-27,
18,
-9,
-21,
2,
25,
-41,
28,
44,
3,
-11,
-28,
-56,
-44,
1,
-67,
-25,
-16,
24,
25,
15,
-1,
17,
-48,
-15,
-29,
-25,
-43,
47,
49,
7,
11,
-1,
58,
-54,
8,
40,
-7,
27,
-57,
-32,
-9,
-13,
51,
45,
18,
7,
-10,
14,
86,
12,
-21,
14,
45,
1,
-14,
38,
-6,
-5,
-26,
-9,
8,
-21,
-21,
-3,
-64,
17,
75,
-3,
2,
-14,
-17,
-43,
-13,
-46,
6,
14,
28,
-35,
-26,
47,
-23,
-11,
45,
-1,
54,
-7,
-34,
-8,
-19,
-6,
24,
-2,
5,
3,
-26,
-31,
14,
10,
17,
28,
34,
-11,
22,
-20,
44,
33,
-22,
25,
0,
-47,
30,
44,
-13,
12,
25,
0,
52,
51,
-2,
34,
-12,
-24,
4,
2,
-25,
25,
20,
-21,
-2,
43,
-41,
31,
-51,
33,
34,
-44,
12,
10,
12,
49,
4,
33,
-17,
0,
-15,
-31,
-10,
-5,
60,
2,
33,
15,
-10,
7,
-57,
-29,
-36,
-36,
14,
-8,
-19,
-54,
-22,
19,
-22,
-1,
-35,
23,
-63,
8,
-41,
32,
0,
50,
-35,
5,
50,
21,
58,
-57,
30,
-24,
-23,
-3,
5,
-8,
-33,
46,
-36,
-37,
29,
-9,
-7,
11,
-29,
-37,
-17,
-8,
-14,
2,
-35,
48,
-1,
-28,
-4,
-11,
2,
26,
-15,
7,
-19,
51,
-17,
86,
1,
-50,
-10,
-10,
23,
59,
2,
-50,
-39,
-11,
24,
-33,
-54,
-24,
-39,
20,
17,
6,
-18,
-8,
1,
-2,
-22,
-11,
29,
-27,
-14,
-8,
37,
-38,
-48,
-22,
42,
-14,
43,
-7,
-17,
16,
10,
24,
-7,
4,
-4,
-36,
1,
31,
-5,
-31,
3,
-21,
-31,
-4,
-2,
-2,
-46,
-23,
-7,
6,
-1,
-6,
56,
35,
-31,
15,
12,
29,
29,
-29,
5,
58,
15,
-7,
9,
-63,
-27,
22,
0,
-4,
-15,
8,
-44,
45,
-47,
-7,
-3,
18,
-35,
-17,
-2,
20,
12,
-19,
-69,
24,
-10,
-11,
-47,
14,
-22,
-15,
-9,
1,
-12,
25,
-9,
6,
-2,
19,
35,
19,
-21,
-1,
9,
21,
-33,
27,
-37,
12,
38,
-3,
61,
29,
3,
11,
-39,
-34,
-9,
-20,
-9,
-29,
-5,
-26,
26,
-30,
6,
26,
6,
8,
-21,
0,
13,
-28,
8,
8,
23,
-20,
6,
-7,
-15,
10,
-17,
29,
-25,
2,
29,
-25,
-57,
-34,
-70,
-31,
17,
-17,
35,
46,
20,
17,
7,
60,
-17,
14,
25,
-1,
-9,
-17,
-10,
-19,
62,
8,
6,
13,
25,
-5,
8,
10,
-6,
51,
-12,
1,
-7,
-20,
-19,
26,
-31,
-53,
10,
-36,
48,
-20,
-27,
-2,
-62,
-29,
17,
-38,
-58,
-38,
9,
4,
21,
-6,
-18,
-1,
-30,
0,
18,
-43,
28,
4,
62,
10,
-22,
-25,
-9,
-1,
-17,
10,
5,
-59,
-10,
38,
-55,
13,
6,
-57,
39,
28,
-3,
-57,
17,
-29,
54,
-2,
-29,
-11,
-27,
6,
11,
12,
-6,
24,
-46,
-53,
14,
-27,
14,
-24,
-49,
24,
1,
-6,
0,
36,
40,
11,
-39,
-24,
7,
-9,
23,
11,
-40,
-54,
-43,
-12,
-20,
-44,
9,
-33,
3,
62,
62,
4,
4,
-11,
-13,
-34,
2,
-41,
41,
15,
-22,
18,
37,
-49,
-22,
21,
8,
29,
19,
29,
-15,
12,
0,
35,
26,
-5,
-56,
22,
-1,
-42,
57,
31,
-35,
-54,
-12,
73,
4,
34,
-35,
-64,
-8,
-14,
20,
-19,
20,
82,
-5,
-37,
-34,
-7,
0,
-7,
24,
-21,
5,
53,
-2,
5,
32,
15,
-14,
44,
-20,
60,
-23,
-17,
-34,
46,
18,
2,
-16,
15,
-72,
27,
-27,
0,
-38,
-6,
-61,
-64,
-10,
15,
41,
22,
-12,
10,
26,
35,
6,
-48,
51,
3,
5,
4,
13,
36,
-13,
-5,
-41,
-1,
-41,
-37,
-18,
-23,
0,
74,
-8,
13,
53,
21,
-2,
17,
21,
4,
0,
10,
-31,
-7,
-4,
-6,
-52,
-19,
5,
33,
3,
2,
-12,
-1,
-8,
38,
1,
16,
-32,
34,
28,
40,
18,
12,
79,
58,
-35,
-5,
-38,
-6,
-33,
3,
-63,
5,
-7,
-11,
41,
19,
13,
52,
-27,
34,
-40,
36,
44,
22,
27,
55,
-10,
10,
-4,
-20,
19,
-45,
8,
-33,
20,
20,
7,
32,
6,
-74,
-31,
58,
69,
-15,
-31,
-6,
-55,
25,
11,
-6,
22,
-25,
29,
-16,
-15,
-44,
17,
-77,
11,
7,
64,
-42,
-20,
16,
72,
33,
-15,
-43,
4,
7,
-13,
-4,
16,
-40,
17,
13,
-32,
-46,
-38,
-42,
-14,
-23,
43,
19,
-34,
11,
-19,
-4,
-5,
-37,
-8,
54,
38,
-4,
-11,
-17,
0,
-1,
14,
-59,
8,
-13,
4,
-3,
40,
-7,
-24,
-38,
25,
-38,
13,
-36,
-37,
-2,
42,
12,
-36,
-63,
24,
22,
-41,
39,
51,
-25,
18,
61,
-37,
-13,
-18,
-46,
-21,
22,
27,
-22,
-2,
-18,
-44,
-24,
-44,
-24,
14,
-18,
-12,
8,
-30,
-9,
43,
46,
65,
-21,
-37,
-15,
9,
-3,
-6,
-3,
23,
-38,
-12,
44,
15,
-9,
22,
1,
8,
-23,
18,
-45,
37,
-58,
-25,
36,
-4,
1,
-1,
-33,
-30,
3,
-7,
-32,
29,
37,
40,
-8,
3,
28,
6,
-4,
5,
53,
7,
29,
-60,
-8,
-13,
-24,
38,
-74,
7,
21,
7,
-10,
0,
-15,
22,
84,
23,
14,
-30,
13,
-13,
10,
48,
-14,
76,
12,
28,
-43,
-16,
31,
28,
2,
-21,
26,
13,
-12,
-30,
28,
22,
24,
-19,
-19,
19,
60,
-58,
27,
41,
21,
18,
-2,
37,
20,
-26,
-47,
31,
0,
-12,
13,
-28,
22,
-20,
29,
9,
-7,
-35,
2,
64,
36,
-15,
-41,
21,
13,
11,
-28,
-6,
26,
12,
-69,
18,
35,
-10,
10,
12,
-34,
-40,
-45,
-5,
28,
-8,
1,
3,
5,
-15,
14,
14,
25,
-15,
49,
30,
12,
-26,
-12,
-42,
-12,
-41,
-30,
-4,
-57,
13,
-2,
-16,
22,
-31,
45,
31,
-34,
43,
-47,
-12,
-3,
-27,
1,
12,
45,
-2,
-24,
-26,
-7,
-64,
-8,
19,
42,
-12,
7,
-45,
8,
-15,
-6,
20,
5,
5,
1,
-29,
-33,
39,
18,
-6,
-23,
-15,
-68,
-3,
51,
77,
78,
-46,
-4,
-10,
-45,
32,
23,
35,
62,
19,
-23,
27,
-46,
-8,
5,
-4,
6,
60,
24,
-24,
-1,
5,
23,
25,
-34,
-1,
-34,
-10,
32,
-14,
-34,
1
] |
Gribbs, P.J.
Liberty Mutual Insurance Company appeals from a circuit court order denying Liberty Mutual a lien, in the amount of workers’ compensation benefits paid to plaintiff Claud Ryan by Liberty Mutual, on the settlement paid to the Ryans by defendants Ford Motor Company and Walt Hickey Ford, Inc. We affirm.
On April 30, 1981, Claud Ryan was injured in the course of his employment. He was struck by his car when the transmission shifted from park into reverse while he was performing routine maintenance on the car on his employer’s premises. The Ryans brought this products liability action against Ford, the vehicle manufacturer, and Hickey, the dealership which sold the car.
Because of its payment of workers’ compensation benefits to Claud Ryan, Liberty Mutual intervened in the Ryans’ action against Ford and Hickey as an unnamed party plaintiff. Liberty Mutual had paid $4,503.54 in workers’ compensation benefits to Claud Ryan in connection with the incident. Liberty Mutual was also the no-fault insurance carrier liable to the Ryans for personal injury protection benefits, but had not paid any no-fault benefits to them.
The Ryans’ suit against defendants Ford and Hickey was settled for $75,000. Liberty Mutual moved for a determination that it had a lien on the settlement in the amount paid to Claud Ryan in workers’ compensation benefits. After a hearing, the circuit court ruled that Liberty Mutual had no interest in the proceeds and denied the lien.
Outside of a no-fault situation, a workers’ compensation insurance carrier which has paid compensation benefits is entitled to reimbursement from the employee’s tort recovery without regard to whether the recovery is for the same elements of loss compensated for by the benefits. Great American Ins Co v Queen, 410 Mich 73, 89; 300 NW2d 895 (1980); MCL 418.827; MSA 17.237(827). However, in a no-fault situation, when a workers’ compensation carrier provides benefits which would be payable by the no-fault insurer had the accident not occurred in the scope of employment but are instead payable by the workers’ compensation carrier because of the no-fault act’s mandatory setoff provision, MCL 500.3109; MSA 24.13109, the compensation carrier’s reimbursement rights are coextensive with those of the no-fault insurer whose liability it replaces. Queen, supra, pp 87-88.
In the case at bar, Claud Ryan was injured by his own motor vehicle in the course of his employment. Liberty Mutual paid him workers’ compensation benefits for medical expenses and wage loss. It conceded at the lien hearing that the compensation benefits paid were not over and above those it would have paid under the no-fault act and that, if the compensation benefits were not involved, the Ryans would be entitled to no-fault benefits. As a workers’ compensation carrier providing benefits otherwise payable under no-fault, Liberty Mutual’s right to reimbursement from the settlement was coextensive with its right to reimbursement as the no-fault insurer. Queen, supra, p 87. Thus we now turn to the no-fault act. MCL 500.3101 et seq.; MSA 24.13101 et seq.
The no-fault act created statutory benefits and partially abrogated common-law tort liability. Where a tortfeasor’s liability arises from the tortfeasor’s ownership, maintenance or use of an insured motor vehicle, the tortfeasor is no longer liable for below-threshold noneconomic loss and, in most cases, economic loss compensated by no-fault benefits. MCL 500.3135; MSA 24.13135; Citizens Ins Co of America v Tuttle, 411 Mich 536, 548-551, n 8; 309 NW2d 174 (1981); Queen, supra, p 93; Coleman v Franzon, 141 Mich App 99; 366 NW2d 86 (1985). The no-fault insurer’s right to reimbursement from an insured’s recovery from such a tortfeasor is limited to unusual situations where the insured has recovered elements of damage which have been compensated for by no-fault benefits. MCL 500.3116; MSA 24.13116; Queen, supra, p 93; see, also, Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich 477; 274 NW2d 373 (1979).
However, the tort liability of an uninsured motorist or liability which does not arise from the tortfeasor’s ownership or operation of a motor vehicle (Le., a nonmotorist tortfeasor) is not abrogated by the no-fault act. MCL 500.3116(2); MSA 24.13116(2); Tuttle, supra, pp 548-551, n 8; Coleman, supra; National Ben Franklin Ins Co v Bakhaus Contractors, Inc, 124 Mich App 510; 335 NW2d 70 (1983). Moreover, although the no-fault insurer has a right of reimbursement from the recovery from an uninsured motorist tortfeasor, MCL 500.3116(2); MSA 24.13116(2), the no-fault insurer has no right to reimbursement from an insured’s recovery from a nonmotorist tortfeasor whose liability arises outside the ownership or operation of a motor vehicle, despite the possibility of duplicate recoveries from the insurer and the tortfeasor. Tuttle, supra, pp 551-554._
In the case at bar, the Ryans settled their products liability action against the vehicle manufacturer and dealership. These defendants were non-motorist tortfeasors whose liability did not arise from their ownership, maintenance or use of a motor vehicle. Tuttle, supra; Coleman, supra. Had it paid no-fault benefits, Liberty Mutual would have had no right to reimbursement from the settlement as a no-fault insurer. Tuttle, supra. Since Liberty Mutual’s right to reimbursement as a compensation carrier was coextensive with its right to reimbursement as a no-fault insurer, Queen, supra, Liberty Mutual had no right to reimbursement from the Ryans’ settlement with Ford and Hickey for the workers’ compensation benefits it paid Claud Ryan which substituted for no-fault benefits.
Liberty Mutual, however, argues that the no-fault act and the rationale in Queen, supra, are not applicable because the Ryans’ settlement was based on a products liability action. It argues that, since the basis of the tortfeasor’s liability falls outside the no-fault act, this is a simple workers’ compensation situation and the workers’ compensation carrier is not limited to the no-fault insurer’s right to reimbursement. We disagree.
Liberty Mutual conceded that the no-fault act was applicable when it acknowledged that no-fault benefits would be payable absent the compensation benefits it paid to Claud Ryan. Moreover, Liberty Mutual’s approach would contravene the Legislature’s intent, as interpreted by the Supreme Court in Queen, supra, that persons injured in motor vehicle accidents in the course of their employment be entitled to the same compensation received by all other motor vehicle accident victims. 410 Mich 96. Under Liberty Mutual’s approach, Liberty Mutual would be reimbursed for workers’ compensation benefits paid to Claud Ryan. Liberty Mutual would also deny Claud Ryan no-fault benefits by claiming that the no-fault act did not apply and benefits were not payable, or by claiming a setoff of the workers’ compensation benefits paid in lieu of no-fault benefits. MCL 500.3109(1); MSA 24.13109(1). The Ryans would thus receive only the settlement amount less the reimbursed compensation benefits. They would be in a far worse position than a plaintiff injured outside the scope of his employment. A plaintiff injured in the same way as was Claud Ryan in the case at bar, but injured outside the course of his employment, would be entitled to no-fault benefits in addition to any recovery or settlement from the nonmotorist defendants. See Tuttle, supra; Schwark, supra.
Thus, the Ryans are entitled to the workers’ compensation benefits substituting for the no-fault benefits and the settlement from the defendant tortfeasors, without reimbursement to Liberty Mutual.
Affirmed.
Prior to the Supreme Court’s decision in Tuttle, supra, panels of this Court were split on whether or not the no-fault act abrogated tort liability of tortfeasors whose liability did not arise from the use, ownership or maintenance of a motor vehicle. See Citizens Ins Co of America v Tuttle, 96 Mich App 763; 294 NW2d 224 (1980), rev’d 411 Mich 536; 309 NW2d 174 (1981); Schwark v Lilly, 91 Mich App 189; 283 NW2d 684 (1979), vacated and remanded on other grounds 411 Mich 909; 307 NW2d 334 (1981); see, also, Spurgeon v Ford Motor Co of Canada Limited, 502 F Supp 729 (WD Mich, 1980).
Prior to the Supreme Court’s decision in Tuttle, supra, and the amending of MCL 500.3116; MSA 24.13116 by 1978 PA 461, this Court was also split on the issue of whether the original reimbursement provision permitted the reimbursement of a no-fault insurer from an insured’s recovery from tortfeasors whose liability arose outside the no-fault act. See Auto Club Ins Ass’n v Henley, 130 Mich App 767; 344 NW2d 363 (1983); State Farm Mutual Automobile Ins Co v Soo Line R Co, 106 Mich App 138; 307 NW2d 434 (1981), lv den 413 Mich 920 (1982); Schwark, supra.
Liberty Mutual did not allege that the workers’ compensation benefits paid exceeded, in duration or amount, no-fault benefits payable. In such a situation, Liberty Mutual would be entitled to a lien for those excess payments which did not substitute for no-fault payments. See Bialochowski v Cross Concrete Pumping Co, Inc, 141 Mich App 315; 367 NW2d 381 (1985). | [
1,
29,
-54,
2,
47,
26,
28,
-32,
29,
-15,
-26,
32,
39,
23,
-47,
-1,
21,
6,
9,
15,
-29,
-48,
26,
-10,
-41,
-4,
40,
-68,
-29,
63,
-5,
-23,
-32,
-28,
-108,
19,
-7,
7,
-57,
4,
-3,
-6,
19,
-9,
4,
-14,
20,
-2,
46,
17,
20,
21,
54,
-31,
0,
-2,
32,
2,
38,
-9,
-35,
5,
73,
27,
-8,
-12,
0,
63,
20,
5,
-30,
23,
-7,
-7,
-11,
-4,
34,
7,
9,
-72,
12,
-11,
30,
-9,
-29,
23,
-14,
27,
11,
4,
-35,
-44,
-35,
-38,
13,
30,
4,
52,
-44,
35,
-20,
-4,
3,
3,
4,
59,
52,
-41,
-15,
11,
-34,
57,
13,
-17,
3,
-27,
-1,
-53,
62,
67,
-21,
-20,
37,
-17,
-2,
1,
49,
-71,
-36,
12,
49,
-7,
-24,
6,
-21,
-54,
18,
-5,
-10,
47,
-13,
-23,
19,
-54,
-3,
40,
14,
-73,
17,
-60,
24,
34,
-8,
-9,
-18,
-56,
-30,
-22,
34,
-42,
7,
-22,
26,
74,
-19,
-34,
-32,
39,
39,
14,
52,
-20,
11,
-5,
-10,
31,
46,
-31,
-45,
44,
-11,
14,
-25,
61,
5,
-42,
10,
-14,
12,
-38,
31,
-40,
-34,
47,
-8,
6,
29,
-22,
45,
14,
32,
-61,
-8,
-16,
29,
30,
-8,
11,
-2,
17,
38,
-3,
19,
-28,
-11,
49,
25,
-57,
-26,
-76,
2,
0,
-38,
-21,
-69,
-49,
1,
-58,
6,
3,
-44,
-31,
56,
54,
-34,
35,
-14,
-76,
71,
48,
21,
-39,
-17,
-47,
-23,
-38,
-23,
35,
16,
27,
3,
-29,
53,
-4,
-37,
-16,
-2,
27,
-2,
30,
-46,
58,
10,
31,
43,
-24,
-58,
27,
30,
-55,
17,
-30,
-24,
-8,
27,
-44,
47,
37,
29,
1,
-26,
35,
-20,
-9,
-7,
-8,
-2,
-53,
-30,
-10,
57,
0,
47,
-34,
-5,
11,
33,
13,
-34,
29,
29,
-21,
-27,
28,
-40,
15,
-40,
-19,
12,
18,
-55,
-50,
9,
-30,
47,
-44,
12,
-43,
20,
8,
54,
21,
1,
22,
-24,
39,
41,
6,
-5,
9,
1,
-19,
-9,
10,
-14,
-53,
-21,
38,
23,
48,
-37,
39,
28,
-24,
-18,
-42,
100,
16,
39,
30,
-63,
34,
-14,
-46,
-2,
75,
35,
-27,
-46,
42,
27,
-13,
-19,
-4,
-6,
0,
-27,
55,
-13,
102,
41,
7,
-1,
-50,
-26,
4,
9,
30,
-21,
-5,
19,
2,
14,
-45,
-24,
13,
-54,
-6,
-4,
10,
-21,
-45,
-19,
30,
-27,
39,
45,
11,
-39,
43,
62,
-21,
-37,
-51,
7,
1,
42,
-42,
14,
-46,
-20,
2,
-12,
-3,
-61,
-16,
90,
-13,
-4,
-13,
39,
7,
0,
-37,
18,
-4,
47,
51,
-34,
70,
-15,
-36,
16,
-46,
-15,
-11,
-30,
-47,
-13,
-3,
-31,
-23,
9,
6,
7,
6,
-58,
-1,
17,
2,
9,
10,
29,
18,
-85,
1,
0,
44,
-28,
-68,
0,
-61,
19,
-20,
88,
-2,
-2,
19,
-25,
2,
-17,
-24,
70,
-11,
2,
-25,
18,
-64,
-27,
71,
-75,
47,
-16,
-7,
-78,
-43,
-13,
24,
-14,
42,
40,
-9,
-32,
-9,
40,
-39,
3,
35,
-48,
-83,
-17,
-16,
12,
30,
49,
-4,
-50,
-45,
-22,
-7,
-6,
6,
27,
48,
64,
20,
-51,
1,
22,
2,
-9,
-22,
-12,
50,
11,
-87,
-4,
8,
10,
-37,
31,
7,
21,
-35,
-2,
-19,
6,
3,
-48,
-44,
-21,
4,
-62,
-22,
-15,
-3,
13,
-8,
59,
-18,
-25,
-33,
85,
22,
-16,
18,
48,
-13,
15,
-17,
-35,
13,
-6,
41,
-65,
2,
38,
-31,
70,
-6,
-70,
-3,
17,
-6,
-1,
-32,
0,
10,
4,
-20,
-28,
-12,
13,
-25,
-96,
9,
-10,
21,
-28,
17,
-25,
26,
23,
29,
58,
3,
21,
-9,
18,
-15,
-7,
-21,
-46,
26,
-16,
33,
-18,
79,
26,
-35,
-17,
-46,
-30,
7,
-31,
-61,
-4,
46,
65,
36,
22,
44,
29,
27,
12,
-12,
62,
20,
11,
13,
0,
-26,
-22,
-45,
-21,
46,
-41,
74,
-10,
11,
-33,
-42,
46,
21,
-47,
24,
15,
-2,
-25,
-73,
-36,
39,
-2,
44,
-67,
-37,
-16,
6,
-103,
-16,
-36,
-42,
-14,
-11,
-32,
-21,
2,
1,
40,
84,
-2,
26,
59,
46,
104,
41,
-37,
42,
-20,
38,
-50,
-64,
68,
36,
-72,
-18,
-34,
4,
23,
5,
-4,
40,
-37,
-51,
5,
1,
13,
-24,
-16,
32,
-10,
-15,
-21,
4,
-43,
29,
-12,
-33,
-58,
30,
44,
-17,
20,
-33,
28,
41,
6,
-11,
16,
-62,
-10,
-9,
21,
-11,
5,
17,
-4,
-48,
-6,
11,
-46,
-15,
0,
17,
-39,
14,
71,
-28,
-22,
-36,
-7,
23,
59,
1,
49,
-18,
-63,
37,
22,
39,
-18,
-30,
-19,
-13,
21,
-22,
-9,
-12,
8,
-39,
-8,
-30,
-13,
-30,
38,
29,
-48,
51,
25,
-59,
-12,
65,
-3,
-38,
5,
12,
61,
-15,
-37,
-4,
-14,
-7,
89,
41,
-43,
-21,
39,
-42,
-39,
-56,
-18,
36,
-20,
-74,
-7,
8,
-30,
-13,
5,
7,
-20,
25,
-44,
-8,
47,
-35,
62,
6,
37,
-3,
14,
-81,
62,
1,
-12,
13,
-1,
50,
17,
45,
-13,
15,
-29,
-23,
15,
-24,
1,
9,
26,
-29,
3,
34,
-1,
64,
6,
40,
17,
-63,
-18,
-60,
1,
28,
-68,
30,
39,
2,
-17,
0,
22,
3,
-14,
-52,
-10,
27,
-36,
0,
37,
-51,
-9,
-57,
16,
-32,
-40,
68,
5,
-51,
23,
30,
-16,
-24,
-47,
12,
-60,
-32,
-1,
45,
10,
-18,
2,
0,
-17,
19,
8,
74,
-25,
-35,
-7,
12,
-56,
31,
-16,
-7,
-44,
-44,
-34,
-11,
24,
40,
78,
-44,
-8,
16,
-23,
6,
-33,
63,
-11,
-11,
-43,
9,
-27,
-28,
30,
29,
-11,
73,
15,
34,
-7,
93,
2,
-10,
-18,
-31,
-19,
9,
20,
-37,
37,
2,
-8,
-26,
42,
62,
62,
-26,
17,
-22,
-40,
-10,
82,
22,
-30,
24,
-81,
-61,
55,
1,
15,
63,
23,
-6,
-14,
34,
4,
-63,
-1,
-14,
39,
26,
4,
30,
-38,
-49,
65,
-13,
-25,
-4,
-21,
-8,
2,
22,
-6,
-15,
45,
-48,
0,
-13,
9,
-9,
2,
12,
-14,
13,
31,
-39,
-22,
18,
-54,
41,
-11,
22,
13,
53,
13,
-66,
41,
41,
67,
36,
-8,
10,
44,
24,
-37,
15,
0,
36,
35,
24,
-4,
15,
-19,
26,
-12,
57,
-87,
5,
0,
-38,
54,
8,
29,
30
] |
Sharpe, J.
After entering a general appearance in the above-entitled cause for the defendant First National Bank & Trust Company, its attorneys, on July 7, 1933, served on the attorneys for the plaintiff a notice of the taking of the deposition of the plaintiff pursuant to Court Rule No. 41 (1931). The attorneys for the plaintiff moved to vacate the notice for the reason, among others, that it was proposed to take the deposition at the office of the attorneys for the defendant and before a clerk and stenographer in said office who was a notary public. From a denial of this motion, the plaintiff, having obtained leave, has taken this appeal.
A notary public is appointed by the governor (1 Comp. Laws 1929, § 1403), and must give bond for the faithful discharge of his official duties (section 1406). An attorney who is a notary may not administer an oath in a cause in which he is professionally engaged (section 13603). While in the strict sense of the term a notary taking a deposition is not acting as a judicial officer, he is then acting as a temporary substitute of the court, and the certificate filed by him attesting the deposition makes it admissible in evidence in the case. It is therefore important that he should be in no way interested in the result of the litigation. It is the duty of an employee to faithfully serve his employer. Clerks or stenographers of attorneys for parties in litigation should not be called upon to act as notaries in the taking of testimony in which their employers are directly interested unless consent thereto be first obtained. When acting as a public official, all temptation to favor one of the litigants should be removed.
In holding that plaintiff was under no obligation to submit to this examination, we in no way intimate that the attorneys for the defendant, men of high.standing at the bar, sought to benefit by the taking of this testimony before their stenographer as a notary public, but the rule permitting it, once established, would be applicable in other cases where the dangers of the practice would be more apparent.
The sufficiency of the notice was also attacked. It need not be considered as under the rule now in force an order of the court must be obtained for the taking of such a deposition (Court Rule No. 41 [1933]).
The order denying the motion is reversed and set aside, with costs to plaintiff, and the cause remanded with directions to the trial court .to vacate the notice given.
McDonald, C. J., and Weadook, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-23,
-11,
34,
26,
-7,
9,
-10,
-1,
-33,
26,
31,
-26,
31,
46,
-37,
-30,
11,
-4,
43,
-63,
-71,
-33,
25,
-23,
29,
-2,
5,
10,
-15,
-11,
-12,
1,
-67,
32,
-9,
-21,
7,
5,
14,
35,
29,
4,
34,
-32,
-14,
-46,
8,
-14,
-6,
-9,
60,
52,
-5,
3,
-15,
-20,
3,
24,
54,
27,
10,
34,
2,
4,
-78,
10,
-5,
25,
2,
-12,
-56,
31,
21,
34,
9,
-59,
-10,
-9,
6,
27,
14,
-26,
-3,
-15,
22,
53,
3,
-19,
65,
-21,
-13,
3,
-42,
-18,
-65,
23,
-14,
50,
19,
48,
28,
5,
-25,
-10,
-7,
52,
-1,
-37,
-21,
-33,
24,
14,
37,
-3,
-18,
-34,
-1,
0,
16,
4,
38,
26,
33,
-45,
11,
11,
32,
-40,
-23,
5,
29,
20,
-15,
-41,
-1,
12,
-23,
-30,
-22,
2,
-9,
14,
-8,
33,
-26,
-25,
-32,
36,
-24,
16,
-19,
48,
3,
39,
-63,
-1,
9,
-49,
9,
7,
16,
45,
-25,
-6,
-30,
35,
-21,
8,
15,
9,
40,
34,
-8,
-3,
-59,
-45,
-13,
-14,
3,
5,
23,
13,
9,
11,
25,
-18,
-63,
12,
59,
14,
-37,
-5,
-1,
49,
13,
-1,
-35,
10,
-2,
-52,
35,
-19,
9,
4,
-22,
24,
37,
15,
2,
53,
-47,
-4,
-45,
-66,
-44,
-15,
27,
-17,
-12,
-1,
-27,
14,
19,
-53,
2,
-3,
54,
-16,
3,
16,
21,
2,
-17,
29,
-12,
28,
-7,
34,
57,
54,
-68,
-6,
16,
-12,
-30,
-30,
-2,
9,
-18,
-39,
35,
21,
0,
18,
0,
0,
-7,
-3,
-38,
-1,
17,
59,
-6,
9,
-22,
-8,
0,
38,
-1,
-10,
-2,
-17,
40,
14,
-8,
-69,
10,
-36,
-12,
-11,
-61,
12,
-78,
21,
-43,
-2,
11,
-22,
11,
11,
-7,
-1,
-26,
49,
21,
18,
-9,
-23,
-8,
-4,
56,
33,
33,
16,
-57,
-37,
-68,
-35,
-63,
4,
18,
38,
-11,
-30,
59,
-3,
-21,
-7,
-19,
-15,
10,
37,
-29,
10,
10,
-3,
29,
8,
59,
-14,
1,
-42,
8,
-15,
-46,
11,
52,
7,
-19,
-16,
-3,
-31,
-21,
-17,
3,
18,
25,
9,
-2,
24,
5,
2,
-51,
25,
-19,
-9,
34,
-22,
10,
-8,
5,
-21,
18,
-19,
32,
-4,
-47,
39,
28,
55,
8,
-35,
-52,
-91,
-29,
-36,
-12,
17,
-47,
0,
-28,
-24,
11,
36,
-16,
20,
0,
1,
-41,
-28,
-9,
11,
19,
30,
-63,
56,
48,
-32,
3,
40,
0,
17,
3,
11,
-53,
-25,
-37,
-27,
-19,
70,
23,
27,
-7,
38,
-20,
-2,
38,
21,
59,
15,
0,
-10,
-48,
15,
39,
-22,
-39,
46,
-1,
-43,
-5,
-4,
33,
-16,
49,
17,
-24,
4,
5,
-7,
-19,
-46,
-8,
-11,
-23,
-7,
-11,
-63,
-4,
26,
-15,
44,
70,
-4,
-17,
-43,
65,
23,
1,
-7,
19,
-6,
-17,
-5,
-10,
23,
-26,
-40,
-6,
24,
7,
-25,
-23,
-4,
-52,
4,
-54,
1,
0,
-7,
-13,
-5,
18,
-16,
0,
17,
-7,
-30,
22,
-29,
13,
-13,
-39,
-36,
-46,
30,
-34,
-5,
-73,
26,
6,
-12,
-19,
24,
21,
-6,
-2,
-18,
42,
51,
-32,
-9,
10,
34,
8,
10,
-6,
16,
-31,
3,
47,
-20,
-37,
-4,
-6,
-10,
-40,
36,
13,
3,
8,
41,
47,
-11,
6,
48,
-21,
-7,
-2,
16,
-44,
-9,
39,
49,
32,
14,
1,
35,
60,
-31,
-18,
-18,
85,
27,
-77,
23,
37,
-16,
10,
-28,
-9,
9,
32,
10,
3,
1,
-13,
-6,
-18,
-49,
13,
-9,
-11,
26,
7,
24,
-12,
-8,
6,
-63,
34,
2,
11,
-33,
-9,
7,
10,
-17,
1,
-18,
5,
30,
-25,
-6,
-8,
-33,
-20,
-4,
8,
63,
10,
28,
-16,
6,
-37,
-22,
36,
16,
7,
-24,
25,
-29,
-51,
-3,
-3,
-30,
-12,
7,
60,
31,
-11,
16,
-2,
-12,
62,
15,
2,
13,
9,
-23,
27,
-12,
-44,
0,
-22,
0,
-17,
0,
16,
17,
-42,
-6,
40,
-41,
-6,
1,
-2,
6,
41,
-3,
14,
29,
59,
23,
-18,
-30,
23,
-1,
15,
-16,
-49,
-60,
-54,
15,
-23,
30,
36,
69,
51,
19,
77,
2,
-15,
3,
3,
-23,
69,
10,
-36,
-31,
-16,
-21,
38,
36,
12,
-38,
-15,
19,
-23,
16,
17,
76,
-17,
-3,
-37,
25,
29,
7,
39,
-34,
-9,
-27,
-24,
11,
-51,
-63,
-29,
-26,
23,
9,
31,
0,
-50,
-18,
23,
13,
-2,
12,
42,
24,
12,
19,
39,
-16,
15,
78,
38,
45,
24,
-43,
37,
20,
-18,
-19,
8,
15,
18,
-34,
-32,
-13,
9,
3,
-5,
-27,
-20,
41,
-16,
-38,
-9,
2,
25,
24,
-3,
-6,
13,
37,
-29,
-59,
-23,
6,
-12,
-1,
-6,
-25,
-8,
-1,
-22,
7,
-9,
-35,
-24,
-52,
48,
5,
-7,
13,
5,
-28,
47,
14,
24,
-6,
-20,
4,
26,
-59,
-11,
49,
-8,
68,
40,
-96,
-61,
2,
6,
13,
-8,
-42,
-20,
22,
-31,
-26,
-8,
9,
33,
4,
11,
98,
27,
-28,
13,
-10,
5,
-33,
-54,
-1,
-40,
14,
-5,
-58,
-49,
-34,
17,
25,
-41,
0,
-41,
-7,
-33,
-10,
13,
-53,
-32,
10,
24,
-19,
32,
-4,
-8,
-28,
31,
-14,
-30,
12,
2,
16,
3,
-9,
26,
-32,
1,
41,
-19,
1,
-7,
-10,
8,
-27,
-36,
-4,
13,
18,
18,
-76,
67,
-48,
-41,
10,
48,
-15,
25,
14,
-9,
8,
-16,
27,
32,
-40,
22,
54,
-49,
59,
-10,
-4,
-62,
35,
57,
-38,
-1,
33,
8,
27,
-16,
24,
4,
3,
-26,
-6,
76,
-49,
-4,
-28,
20,
15,
-2,
-10,
8,
45,
-29,
19,
21,
-11,
14,
-62,
1,
35,
-2,
3,
19,
30,
30,
-6,
-2,
-5,
9,
-10,
65,
59,
3,
32,
50,
-6,
29,
-24,
40,
-27,
24,
-39,
-14,
-47,
-3,
-49,
-18,
-26,
1,
-19,
-58,
-7,
-57,
27,
-15,
-62,
-28,
25,
-21,
-14,
-11,
-29,
28,
-15,
-12,
14,
7,
0,
-23,
-10,
-15,
-31,
10,
15,
21,
7,
10,
-45,
-18,
15,
11,
-62,
-39,
29,
-15,
-23,
4,
3,
-7,
17,
-15,
0,
11,
-28,
16,
46,
-48,
23,
19,
29,
-2,
-82,
-21,
10,
-15,
28,
30,
46,
23,
-7,
7,
20,
-43,
39,
-32,
-27,
39,
50,
21,
32,
23,
6,
-38,
-35,
0,
67,
-56,
38
] |
On Motion eor Rehearing.
Fead, J.
The Massachusetts Bonding & Insurance Company moves for a rehearing because the opinion (263 Mich. 586) overlooked the fact that the highway bond was not delivered until after defendant had received the State treasurer’s letter of September 14th. The time of delivery appeared only casually in the testimony, was not definitely stated, and was not stressed in the pleadings, briefs, or argument.
Re-examination of the testimony demonstrates that defendant did not sustain the burden of proof of estoppel. By the representation that the funds covered by the bond had been withdrawn, the State treasurer meant that sufficient funds had been checked out to permit reduction of the security. There was no testimony that defendant did not know the condition of the deposit nor that it understood the treasurer’s statement otherwise than as he intended, nor that it wrote the highway bond in reliance on an understanding that the whole deposit had been withdrawn. The testimony is that it relied upon “the fact that the bond had been canceled.” Defendant had had legal advice on the authority of the State treasurer to cancel, and it is evident it relied on such authority.
0 To estop the State, the acts or conduct of an officer must be within the scope of his authority. 10 R. C. L. p. 704 ; 21 C. J. p. 1191. Had the three approving officers known of the arrangement between the defendant and the bank, and had they acquiesced in or failed to object to the attempted cancellation, a different question would be presented. It is true.the treasurer had full power over the deposit, but, unlike the authority of a bank cashier over bills and notes, as declared in Gochecho National Bank v. Haskell, 51 N. H. 116 (12 Am. Rep. 67), relied on by defendant, he alone had no authority over the depository bonds except their custody. Obviously his statement of their legal status at any time was not within the scope of his authority and could not estop the State.
Defendant’s position is unfortunate, and appeals to a sense of equity, but apparently was due to a conception of the law different from that declared by this court. Relief to it would not justify a rule which would permit nullification of a statute enacted for protection of State funds, by indirection through estoppel, by an officer who has no direct power to work the result.
The Indemnity and Detroit companies also move for rehearing, but present nothing not already covered.
Rehearing denied.
McDonald, C. J., and Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Clark, J., took no part fit this decision. | [
27,
-1,
4,
-4,
-36,
-17,
15,
-17,
-22,
2,
58,
23,
35,
28,
-22,
4,
31,
41,
20,
-9,
-28,
-64,
63,
27,
-19,
-24,
50,
0,
33,
17,
25,
7,
-40,
-6,
-9,
-10,
21,
59,
38,
-34,
4,
43,
-47,
-1,
-37,
-65,
-28,
-61,
17,
-16,
8,
2,
-20,
15,
32,
25,
9,
-28,
-39,
41,
61,
-55,
4,
1,
-28,
4,
-1,
56,
1,
26,
-10,
5,
2,
38,
22,
-35,
17,
10,
2,
5,
22,
-63,
-5,
-16,
33,
3,
-27,
-15,
-10,
-10,
-29,
-18,
-63,
-36,
-41,
59,
3,
-50,
52,
14,
-34,
-13,
-11,
-23,
-6,
24,
22,
-57,
8,
-17,
-3,
6,
-1,
-11,
-52,
-3,
-58,
-2,
27,
-25,
41,
-2,
6,
-2,
-11,
-25,
-16,
-30,
-63,
25,
-20,
-13,
-11,
43,
-41,
40,
-4,
-46,
12,
-13,
-20,
-23,
23,
-29,
-22,
28,
36,
-2,
15,
27,
0,
-10,
4,
6,
-24,
-33,
0,
-62,
31,
-31,
39,
4,
-40,
25,
-29,
19,
18,
-44,
-30,
4,
12,
51,
-14,
5,
-14,
-9,
-7,
15,
-45,
-11,
-24,
33,
17,
48,
15,
2,
-8,
43,
30,
40,
-15,
19,
-32,
73,
-8,
29,
-28,
23,
-15,
-12,
-19,
-8,
7,
19,
-47,
0,
5,
-37,
7,
26,
-36,
18,
-46,
-7,
-28,
-59,
47,
-4,
52,
-2,
-28,
46,
54,
0,
-19,
-40,
15,
4,
6,
10,
28,
-5,
-45,
18,
-3,
25,
58,
13,
26,
-28,
17,
47,
-16,
-52,
13,
-32,
-4,
-2,
17,
-20,
-26,
-1,
3,
63,
6,
-26,
16,
17,
-51,
-23,
54,
47,
-10,
2,
1,
11,
-13,
25,
-15,
3,
77,
-34,
46,
-26,
12,
-13,
-28,
-22,
26,
-12,
1,
-1,
-62,
61,
-46,
35,
24,
12,
13,
-4,
45,
-14,
3,
36,
-8,
-18,
-8,
14,
24,
55,
3,
33,
9,
24,
-17,
10,
-5,
-2,
-48,
-33,
26,
52,
-14,
6,
66,
-39,
11,
-33,
-8,
-49,
25,
10,
10,
-41,
39,
-1,
15,
5,
-15,
-8,
-18,
-13,
16,
0,
-26,
-25,
2,
-8,
-35,
9,
-5,
-5,
4,
-77,
-15,
11,
22,
-26,
-43,
-17,
-88,
17,
-28,
23,
8,
-6,
29,
-25,
-10,
64,
4,
-34,
1,
27,
47,
-3,
-1,
12,
-15,
27,
26,
-52,
-37,
-56,
0,
-32,
-48,
21,
-36,
0,
2,
-9,
-7,
22,
42,
-18,
-19,
-12,
-72,
37,
-14,
2,
-6,
15,
5,
36,
26,
-15,
-80,
-23,
15,
25,
19,
-41,
-29,
-16,
3,
-58,
-6,
44,
6,
-15,
-19,
-9,
-43,
-3,
41,
38,
35,
-13,
-3,
-20,
-16,
12,
18,
-33,
-53,
18,
-36,
-17,
-56,
29,
-12,
-46,
-19,
-8,
-3,
-25,
-33,
41,
-12,
-20,
7,
7,
6,
1,
5,
-54,
21,
27,
29,
-15,
42,
5,
-25,
36,
35,
-8,
11,
-45,
14,
-49,
56,
26,
10,
-32,
-15,
-19,
14,
1,
20,
0,
-4,
54,
-48,
20,
-13,
-14,
-54,
22,
-28,
1,
26,
-32,
-20,
0,
-38,
-42,
6,
40,
14,
16,
12,
-51,
-59,
-2,
-29,
-21,
16,
43,
30,
2,
-3,
29,
39,
-26,
-2,
-29,
-29,
23,
23,
3,
47,
49,
14,
39,
-26,
2,
-15,
56,
-33,
14,
-59,
-4,
-17,
-29,
-13,
25,
5,
-42,
-5,
17,
-2,
-29,
-39,
26,
-4,
51,
-24,
21,
-43,
53,
-14,
3,
1,
29,
26,
-32,
10,
7,
-31,
-14,
63,
35,
-1,
-22,
52,
-6,
-31,
5,
-43,
55,
8,
7,
0,
-31,
-39,
-70,
4,
-43,
28,
-7,
7,
37,
-4,
-7,
14,
-20,
10,
-24,
4,
-1,
1,
-27,
-32,
27,
7,
-17,
-25,
-35,
55,
3,
-15,
20,
-26,
16,
22,
9,
-30,
24,
12,
26,
-42,
23,
33,
2,
53,
17,
-30,
22,
29,
16,
53,
37,
-29,
-10,
-6,
-11,
16,
18,
28,
20,
-15,
18,
0,
-22,
17,
-15,
12,
16,
-26,
-45,
0,
11,
-58,
-24,
-34,
-19,
15,
-45,
-38,
6,
64,
-58,
11,
-13,
-34,
33,
50,
-5,
-33,
41,
44,
2,
-17,
-4,
-15,
-58,
52,
0,
28,
-25,
-5,
-11,
-8,
12,
19,
15,
18,
2,
58,
-48,
25,
12,
56,
-28,
35,
-37,
-23,
38,
-50,
-11,
-27,
39,
-19,
5,
-14,
36,
19,
37,
7,
53,
-49,
-8,
-14,
15,
15,
-28,
-25,
34,
36,
0,
-21,
-6,
-68,
-19,
-62,
-4,
-6,
52,
21,
22,
16,
22,
46,
10,
32,
9,
-59,
-33,
9,
-26,
38,
22,
-25,
11,
38,
-24,
-15,
-62,
-7,
39,
4,
-5,
-22,
-24,
49,
34,
-12,
-68,
3,
37,
9,
-1,
-46,
5,
-21,
20,
6,
-26,
34,
13,
-11,
-6,
-59,
36,
-39,
-2,
26,
-36,
24,
-24,
23,
-16,
-14,
-46,
-77,
-7,
6,
-29,
24,
-18,
27,
-4,
-1,
38,
-6,
-28,
44,
9,
-7,
40,
18,
9,
32,
-122,
-4,
-18,
-19,
32,
40,
17,
-4,
4,
-30,
65,
15,
-2,
-8,
35,
-40,
15,
-38,
55,
21,
23,
-33,
35,
42,
-58,
13,
-63,
-9,
6,
47,
8,
-4,
41,
-21,
-47,
-55,
62,
39,
-55,
-41,
18,
1,
-6,
19,
30,
-22,
-32,
-51,
-6,
42,
-40,
47,
-21,
37,
-29,
4,
-57,
6,
-22,
-11,
-45,
-37,
3,
5,
52,
-5,
54,
-9,
17,
13,
45,
-33,
13,
-2,
30,
7,
33,
-22,
-23,
40,
-54,
-40,
44,
41,
35,
13,
0,
24,
15,
-9,
-8,
46,
-14,
49,
-4,
-2,
18,
9,
0,
1,
-59,
17,
-30,
-14,
55,
5,
17,
-54,
30,
7,
-28,
21,
-50,
-23,
12,
13,
32,
-50,
-30,
13,
-9,
-3,
18,
-18,
-9,
39,
32,
70,
-49,
-19,
9,
-6,
-11,
-41,
42,
38,
38,
-14,
-14,
0,
6,
3,
-22,
33,
52,
13,
17,
-32,
46,
1,
-33,
-43,
-1,
-27,
1,
24,
-69,
-48,
-21,
-6,
-15,
-41,
4,
17,
15,
-9,
5,
26,
24,
-14,
9,
1,
0,
-10,
-20,
-17,
35,
19,
-21,
16,
46,
17,
-15,
-32,
25,
47,
-16,
-1,
-22,
-27,
-11,
16,
-50,
-66,
-16,
19,
-6,
-20,
-15,
-34,
4,
9,
-18,
-7,
4,
-8,
-1,
25,
19,
-14,
13,
36,
-54,
39,
-10,
20,
-8,
50,
0,
19,
4,
28,
16,
20,
-6,
-21,
-19,
-7,
31,
6,
21,
24,
-38,
25,
-31,
7,
-13,
-27,
9
] |
Sharpe, J.
The defendant has appealed from a judgment entered on a directed verdict in favor of the plaintiffs in the sum of $1,294.80. The defendant was indorser upon a promissory note, and the only question presented was whether a notice of its protest, duly addressed, was mailed to him. The certificate of the notary public showed that she had presented the note for payment on the day that it became due at the place where it was payable, and that payment was refused, and that she had, on the same day, after making diligent inquiry for the place of business of the defendant, mailed a .notice of protest in a registered letter, addressed to bim, at 1460 Penobscot Building, Detroit, it being the reputed place of Ms business. The receipt for this letter was .signed “F. T. Ranney. (Signature or name of addressee.) Evelyn Hurd. (Signature of addressee’s agent.) ” The notary public was sworn, and testified to the truth of the matters stated in the certificate.
The defendant denied the receipt of such letter. He testified that Evelyn Hurd was never employed by him or in his office, although she was on the same floor of the Penobscot Building; that he did not recall that his office address at that time was 1460 in that building; that he thought it was 1404. He admitted, however, the receipt of a registered letter bearing the same date and address and receipted for in the same manner by Evelyn Hurd. The lapse of time doubtless accounts for his confusion as to his office address and the receipt of the notice of protest.
In our opinion, the statute then in force (2 Comp. Laws 1915, § 6149 [2 Comp. Laws 1929, § 9357]) was complied with.
The judgment is affirmed.
McDonald, C. J., and Clark, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-59,
-11,
21,
-1,
-47,
29,
56,
-1,
-14,
16,
-11,
2,
14,
76,
-28,
-24,
59,
14,
28,
-34,
-59,
-47,
-44,
-20,
-5,
0,
0,
-22,
-2,
52,
-28,
2,
-29,
17,
-16,
-12,
45,
-13,
26,
-11,
-35,
-1,
-30,
20,
-36,
-50,
23,
-32,
22,
-41,
21,
34,
-2,
-31,
-18,
-21,
-14,
-19,
15,
17,
-19,
-2,
20,
37,
-23,
-37,
-15,
4,
2,
16,
-19,
-16,
39,
-39,
-21,
-14,
-18,
-14,
-39,
-9,
-21,
-39,
-21,
16,
9,
36,
-23,
-43,
-12,
-5,
38,
-11,
-31,
-22,
8,
23,
16,
-20,
16,
11,
-3,
6,
-16,
35,
18,
12,
-19,
-36,
-25,
0,
-1,
12,
47,
8,
-50,
27,
30,
-1,
54,
-33,
10,
-10,
6,
9,
39,
-6,
10,
-25,
21,
12,
67,
0,
-28,
22,
-19,
14,
-12,
-39,
12,
-8,
63,
8,
3,
18,
-22,
1,
28,
33,
-20,
-42,
-48,
17,
-12,
16,
-8,
8,
19,
-40,
3,
-15,
29,
14,
20,
-37,
-5,
-8,
-30,
18,
24,
-26,
30,
-3,
-12,
-27,
19,
-8,
-13,
1,
-16,
-24,
13,
12,
20,
-28,
33,
15,
-1,
-53,
14,
-6,
-2,
-26,
-4,
36,
2,
26,
3,
-13,
37,
-7,
27,
1,
19,
-11,
-32,
-33,
68,
-12,
-31,
52,
-20,
-33,
-14,
11,
0,
8,
11,
-33,
-22,
9,
-39,
23,
-20,
0,
-21,
-33,
12,
4,
-13,
-11,
-18,
7,
-4,
36,
10,
13,
37,
27,
6,
-6,
-84,
14,
-6,
-4,
-19,
11,
-45,
-18,
13,
11,
-12,
-9,
-12,
39,
-12,
-14,
-4,
0,
-4,
27,
5,
46,
-33,
1,
29,
13,
48,
3,
-29,
-3,
-44,
-9,
0,
36,
2,
-46,
-2,
-9,
-13,
-10,
-12,
-8,
-44,
0,
0,
6,
54,
2,
11,
14,
-7,
-9,
-5,
29,
9,
0,
-9,
-39,
-21,
-23,
-4,
21,
31,
-35,
-21,
6,
1,
-26,
-77,
-5,
17,
13,
-38,
-23,
17,
11,
1,
-16,
6,
-21,
18,
80,
-18,
-14,
-5,
25,
29,
16,
-2,
-49,
26,
35,
-2,
8,
7,
3,
72,
-30,
6,
-44,
-1,
-1,
-7,
16,
-11,
38,
-14,
46,
34,
4,
-6,
-9,
-9,
49,
-4,
13,
21,
-6,
-32,
89,
17,
19,
10,
40,
8,
0,
-10,
0,
-30,
37,
-6,
-1,
-20,
-20,
-16,
-31,
-27,
-22,
-22,
29,
28,
-41,
29,
-11,
13,
-5,
-26,
-37,
-9,
-30,
-50,
-1,
23,
24,
5,
-41,
42,
-26,
-23,
-29,
-32,
37,
29,
-1,
-63,
56,
-11,
14,
12,
41,
-28,
0,
0,
2,
-4,
-2,
28,
10,
16,
-25,
19,
6,
-6,
-21,
5,
-34,
49,
23,
9,
32,
-7,
37,
20,
-43,
-10,
5,
-17,
-19,
-6,
5,
24,
27,
-57,
-12,
-9,
-28,
10,
-27,
-16,
45,
47,
-25,
24,
20,
19,
7,
27,
-14,
53,
-22,
28,
3,
-1,
-4,
-15,
42,
14,
-12,
-6,
-15,
-44,
21,
-29,
-29,
-20,
9,
21,
5,
3,
22,
6,
38,
-4,
-2,
1,
0,
-25,
-43,
-41,
-10,
26,
-1,
-31,
6,
10,
33,
-36,
-16,
-53,
-4,
11,
-2,
-1,
12,
32,
-49,
-48,
9,
21,
-5,
-29,
14,
32,
22,
4,
44,
-12,
18,
42,
36,
-2,
-42,
-41,
-12,
-1,
49,
15,
1,
25,
11,
6,
42,
-2,
-51,
-14,
-6,
-4,
-4,
10,
52,
-3,
7,
13,
31,
-1,
7,
-45,
31,
0,
-7,
-14,
-38,
11,
-36,
-34,
-1,
21,
9,
-3,
-1,
-10,
30,
19,
-12,
73,
-40,
28,
-20,
0,
-4,
-12,
-11,
8,
0,
-18,
-12,
-40,
-36,
11,
-44,
25,
-18,
-21,
-42,
0,
0,
25,
-10,
-50,
14,
11,
12,
2,
-18,
-35,
6,
-69,
-1,
47,
16,
22,
31,
-19,
12,
-12,
-38,
-29,
28,
5,
-62,
27,
41,
-46,
2,
-3,
-12,
-14,
-36,
58,
-5,
33,
10,
6,
41,
38,
-2,
4,
-42,
-44,
32,
12,
-20,
12,
-7,
-29,
21,
6,
10,
-15,
-55,
-32,
48,
54,
-20,
15,
-5,
-33,
12,
18,
24,
13,
65,
71,
-43,
0,
-74,
65,
-33,
-7,
0,
3,
23,
-6,
9,
7,
5,
17,
42,
28,
19,
23,
-9,
1,
-22,
12,
-11,
15,
15,
20,
-7,
4,
17,
-4,
2,
7,
-46,
16,
-27,
5,
-16,
-7,
24,
-36,
-20,
-3,
5,
1,
22,
26,
26,
7,
-3,
34,
35,
-20,
-39,
-44,
-4,
29,
22,
-1,
-12,
-5,
20,
-3,
28,
28,
38,
-31,
-40,
-9,
-16,
10,
-68,
-23,
-27,
37,
-29,
4,
11,
25,
67,
42,
10,
-8,
-34,
-14,
-21,
-55,
-11,
0,
9,
-7,
-37,
-42,
-39,
60,
-14,
-36,
19,
28,
0,
-30,
-17,
15,
-30,
-32,
-25,
-21,
-18,
-9,
-34,
75,
-23,
-21,
14,
-30,
7,
-3,
-62,
-31,
-27,
12,
0,
-19,
-13,
-11,
0,
57,
-36,
0,
43,
0,
3,
-2,
-46,
16,
13,
8,
67,
9,
-7,
-25,
-56,
-12,
11,
0,
8,
-33,
14,
-10,
-6,
21,
-18,
5,
30,
-6,
52,
18,
-9,
-13,
-6,
-4,
-49,
-16,
23,
-26,
37,
-1,
14,
-31,
22,
13,
23,
-30,
0,
-27,
28,
-9,
10,
0,
-60,
18,
9,
-4,
13,
25,
21,
30,
-14,
17,
-20,
-13,
21,
-11,
62,
5,
26,
-2,
-38,
-6,
5,
0,
-36,
-12,
23,
23,
-14,
-12,
24,
41,
4,
-46,
-21,
32,
-25,
-36,
-40,
72,
26,
36,
25,
3,
1,
-4,
22,
48,
0,
32,
1,
6,
7,
25,
0,
-13,
-30,
44,
-16,
-18,
7,
23,
3,
-8,
21,
-13,
-19,
-6,
-51,
46,
14,
-19,
-29,
17,
32,
12,
-33,
-14,
23,
0,
5,
32,
-11,
-6,
-47,
-20,
24,
3,
-11,
29,
-4,
2,
30,
-32,
11,
6,
29,
21,
32,
-25,
13,
19,
-28,
-16,
9,
-32,
-15,
27,
-31,
0,
10,
0,
-32,
-11,
-17,
-9,
0,
-31,
18,
-25,
28,
18,
-23,
19,
51,
-59,
59,
-7,
-18,
-15,
-34,
3,
30,
7,
-16,
-4,
45,
20,
-3,
40,
5,
-15,
-1,
0,
-37,
-20,
7,
28,
-27,
-16,
-7,
0,
-14,
7,
62,
10,
-53,
8,
-17,
-36,
-28,
15,
1,
-11,
-22,
14,
-39,
-2,
-9,
9,
19,
-7,
16,
-12,
-1,
27,
-32,
17,
-2,
-34,
11,
-44,
0,
10,
42,
16,
5,
-23,
-5,
-26,
-11,
7,
17,
2,
24
] |
North, J.
(dissenting). This is an appeal from the conviction of defendants A1 Foreman and Sam Gutterman, in the circuit court of Presque Isle county, as accessories of one Walter Meyer, alias Henry Bloom. The information contains three counts, but conviction by the court, without a jury, was only upon the third count, which reads:
“And the said John Doe, alias Walter Meyer, alias Henry Bloom, together with A1 Foreman and Sam Gutterman, at the time and place aforesaid, and within the jurisdiction of this court, to whom goods and other property of a kind subject to larceny were delivered, to-wit: said stock certificate set forth in count one herein (a stock certificate of 1,500 shares of Corporate Trust stock), did then and there embezzle and convert to his own use such property, said stock certificate of a value exceeding $50. The said A1 Foreman and Sam Gutterman being accessories before and after the fact. ’ ’
Albert Selke, residing in Presque Isle county, owned 1,500 shares of Corporate Trust stock, for which he had paid $7,000. By means of false representations made by Walter Meyer, alias Henry Bloom, Selke was induced to deliver this stock to Meyer. By similar false representations Meyer had secured from several other persons other Corporate Trust stock. Two days after Meyer obtained Selke’s stock 500 shares of it were sold by Detroit brokers for the defendant Gutterman and he re ceived therefor $2,825. The record contains no testimony that either Foreman or Gutterman was in Presque Isle county or that either had anything to do with the transaction by which Meyer secured Selke’s stock. Nor is there any testimony tending to connect defendant Foreman in any way with the sale of Selke’s stock through the Detroit brokers, except upon inquiry from Gutterman the brokerage firm through which the sale was made was recommended by Foreman. But there is testimony from which it appears that Foreman had to do with the sale of Corporate Trust shares which Meyer had secured from parties other than Selke.
At the time of the trial of Foreman and Gutter-man, Meyer had not been apprehended. The jurisdiction of the circuit court of Presque Isle county to try and convict either of appellants is challenged. In support of the court’s jurisdiction the prosecution cites and relies upon the following statutory provisions:
“Whenever a felony consists (of) or is the culmination of two or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.” 3 Comp. Laws 1929, § 17126.
“In all prosecutions for the crime of embezzlement said offense may be prosecuted either in the jurisdiction in which the property is received by the person charged or the jurisdiction in which it was the duty of such person to deliver, redeliver or return said property.” 3 Comp. Laws 1929, §17128.
Unless jurisdiction of the circuit court in Presque Isle county can be sustained under one or the other of the above provisions, the court was without jurisdiction and the convictions must be set aside.
In 1927 the legislature enacted “The Code of Criminal Procedure,” Act No. 175, Pub. Acts 1927 (3 Comp. Laws 1929, § 17116 et seq.). Chapter 2 of the act relates to jurisdiction of courts. As originally enacted it contained seven sections. By Act No. 24, Pub. Acts 1929, three sections were added to this chapter, and are now included in 3 Comp. Laws 1929 as sections 17126, 17127., and 17128. We have quoted above the two with which we are here concerned. The apparent purpose of this legislation was to define more specifically and possibly in some cases to extend the jurisdiction of courts in criminal cases.
Under the people’s theory, section 17126 obviously is not applicable to the present prosecution, for the reason that if the crime of embezzlement was committed in the instant case, such crime was fully consummated at the time Meyer obtained possession of Selke’s stock certificate in Presque Isle county. The crime once being fully consummated in Presque Isle county, subsequent acts in Wayne county constituted no part thereof. This is true notwithstanding such subsequent acts might be competent proof of the crime committed in Presque Isle county.
Section 17128 has not been before the court for construction, and the question arises as to whether it is at all applicable to the instant case. In so far as the section provides that one charged with embezzlement may be prosecuted in the jurisdiction wherein he received the property, it presents nothing new; but it is pertinent here to determine the meaning and application of that part of the section which provides for prosecution in the jurisdiction “in which it was the duty of such person .to deliver, redeliver, or return” said property. In a broad moral sense it is the duty of one who has wrongfully pos sessed himself of the property of another to redeliver or return such property wherever he may be. But it would be preposterous to assume that the legislature for that reason sought to provide that the wrongdoer might therefore be prosecuted in any jurisdiction where he could be found. Obviously a more restricted meaning must be given to the words used in the statute. We think the provision contemplated prosecution in cases wherein the offender obtained possession in one jurisdiction with an understanding or agreement that he would “redeliver or return” the property in some other specified jurisdiction; and if so upon failure to return or redeliver the property prosecution might be had in the latter as well as in the former jurisdiction. So construed, section 17128 is not applicable, because there is no proof or claim that Selke was assured or led to believe that his stock would be redelivered to him in Wayne county. We think no one would contend that under the facts in this case Meyer could be prosecuted in Wayne county. Conspiracy is not charged in this case; and there is no proof that either of appellants were in Presque Isle county prior to their arrest in this case. If the offense committed by Meyer was^one for which he could not be prosecuted in Wayne county it logically follows that these defendants cannot, under the cited statute, be prosecuted in Presque Isle county. The circuit court of that county had no jurisdiction.
As bearing upon whether either of the above-quoted statutory provisions is here applicable, it may be noted that both the prosecution and the defense agree that appellants were charged and convicted under Act No. 328, Pub. Acts 1931, § 362. The information contains no reference to a specific section of the statute, but its phraseology discloses that it was drafted under section 362. The sentence imposed on appellants accords with the penalty provided in section 362. This section is a part of chapter 52 of the act, which is devoted to larceny. Chapter 31 embodies the various acts which are penalized as embezzlement. In behalf of the people it is contended that notwithstanding this prosecution is under a section defining a certain type of larceny, nonetheless the conviction can be sustained as embezzlement because in this State there is no distinction between embezzlement and larceny, relying somewhat upon People v. Gregg, 170 Mich. 168. While it may be possible, under a given set of facts, that the offense could be charged either as larceny or embezzlement nonetheless one charged specially, as is here agreed, under the larceny statute, cannot be convicted of embezzlement. To hold that there is no distinction between larceny and embezzlement in the instant case would be to entirely ignore the specific provisions and subdivisions embodied by the legislature in Act No. 328, Pub. Acts 1931. The charge here made against appellants, being one of larceny, clearly neither section 17126 nor 17128, 3 Comp. Laws 1929, hereinbefore quoted, is applicable, and the conviction of appellants in Presque Isle county cannot be sustained. It follows that the conviction should be set aside, and defendants discharged from custody.
Wiest and Butzel, JJ., concurred with North, J.
Fead, J. Defendants were convicted of the statutory offense of larceny under Act No. 328, Pub. Acts 1931, § 362, a re-enactment of 3 Comp. Laws 1929, § 16911:
“Any person to whom any money, goods, or other property which may be the subject of larceny, shall have been delivered, who shall embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other property, or any part thereof, shall be deemed by so doing to have committed the crime of larceny.”
The offense is neither common-law larceny nor embezzlement, but is one of the crimes provided by statute law to occupy the no-man’s land surrounding the offenses against property at common law. It is not to be tested by the common-law rules of larceny or embezzlement, nor, of course, by the implications of names, such as “larceny by embezzlement,” sometimes given it for convenient reference, but its elements are to be found in the statute itself. 3 Comp. Laws 1929, § 17128, permitting prosecution “for the crime of embezzlement” to be brought in the jurisdiction of the receipt of goods or their proper place of return is not applicable because the offense under consideration is made “larceny” by legislature fiat.
The crime has two elements, (1) delivery of property, and (2) its embezzlement, fraudulent conversion or concealment. The character of the delivery, whether induced by legal or wrongful means, is not an element. The gist of the offense is the conversion. The delivery occurred in Presque Isle county. The sale in Wayne county was an integral part of the single and continuous operation of conversion.
One of the acts making up the felony, delivery of the stock certificate to Meyer, occurred in Presque Isle county. Therefore, Meyer could be prosecuted in that county, under 3 Comp. Laws 1929, § 17126:
“Whenever a felony consists or is the culmination of two or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed. ’ ’
Because the other defendants aided and abetted Meyer in the felonious act of conversion, they were subject to the same statute of jurisdiction. 3 Comp. Laws 1929, § 17253, reads:
“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 hereafter be prosecuted, indicted, tried, and on conviction shall be punished as if he had directly committed such offense.”
Judgment affirmed.
McDonald, C. J., and Potter and Sharpe, JJ., concurred with Fead, J. Clark, J., took no part in this decision. | [
57,
26,
41,
-7,
-35,
40,
6,
6,
-24,
45,
13,
-3,
16,
-7,
-2,
-29,
31,
14,
14,
-16,
25,
-42,
-4,
-23,
-20,
-56,
-22,
56,
8,
51,
33,
-14,
1,
-32,
1,
55,
0,
-4,
-26,
-8,
-21,
5,
30,
9,
-1,
38,
-38,
-45,
14,
-18,
127,
1,
67,
-18,
64,
-9,
16,
18,
20,
11,
25,
-7,
20,
2,
0,
-10,
20,
0,
-33,
-11,
-19,
-23,
-1,
0,
54,
-21,
-32,
49,
-5,
1,
1,
3,
70,
-14,
-3,
-16,
1,
4,
-1,
25,
33,
30,
-46,
-10,
0,
-11,
27,
19,
0,
-50,
10,
-40,
-37,
-3,
19,
-4,
-33,
-28,
7,
47,
-12,
-15,
65,
21,
-15,
-37,
-60,
-46,
25,
1,
-11,
-44,
20,
-6,
29,
36,
-28,
26,
-41,
1,
-8,
29,
-11,
-16,
-2,
8,
-30,
-27,
41,
-4,
11,
53,
-7,
-29,
-19,
46,
-23,
-16,
63,
24,
-54,
-5,
17,
14,
20,
-13,
21,
-48,
-12,
-25,
-13,
13,
-23,
-5,
-17,
-14,
16,
-21,
-56,
12,
4,
42,
-22,
-20,
15,
-19,
27,
-13,
-7,
4,
6,
18,
30,
44,
-16,
-48,
9,
3,
15,
-6,
50,
29,
3,
-10,
0,
28,
-11,
3,
52,
-5,
-22,
-47,
9,
0,
-7,
-15,
56,
-16,
-5,
25,
4,
41,
-2,
-58,
6,
33,
-67,
-37,
18,
-17,
1,
12,
-24,
-30,
-36,
-33,
14,
38,
-14,
4,
-21,
-45,
-65,
19,
-51,
-26,
39,
-12,
48,
36,
-24,
-44,
8,
-30,
17,
3,
-20,
9,
-25,
45,
-24,
-48,
-21,
3,
-57,
23,
-24,
29,
-47,
8,
-6,
19,
-21,
58,
-6,
-3,
12,
20,
-89,
36,
0,
-7,
41,
-2,
-24,
-7,
-2,
20,
11,
30,
47,
0,
39,
7,
-16,
19,
-14,
9,
20,
-44,
-7,
61,
32,
-9,
26,
0,
-6,
-26,
44,
50,
-31,
7,
-22,
-6,
26,
-32,
-53,
-35,
10,
-17,
45,
12,
39,
-16,
22,
19,
-19,
-3,
11,
6,
-15,
-12,
-35,
-49,
6,
-32,
3,
-7,
34,
-16,
-8,
5,
-22,
4,
-22,
-6,
-6,
-6,
41,
2,
-56,
-21,
51,
-24,
-20,
0,
18,
12,
9,
-39,
11,
-10,
25,
15,
-7,
5,
-6,
8,
34,
-15,
73,
-8,
-1,
-31,
-12,
6,
-45,
-30,
-4,
11,
-1,
4,
-18,
0,
5,
13,
-43,
-33,
-36,
2,
24,
-11,
36,
20,
-10,
0,
22,
-38,
-17,
58,
-30,
7,
-14,
-3,
-28,
14,
-6,
-40,
20,
-45,
9,
-14,
36,
-1,
-36,
-8,
5,
6,
16,
37,
10,
-6,
49,
8,
1,
-55,
25,
-5,
42,
-13,
41,
-4,
38,
-15,
62,
-44,
-7,
19,
-35,
-50,
-47,
14,
-20,
-12,
6,
1,
0,
-35,
44,
-17,
-70,
-28,
39,
5,
35,
40,
-18,
-3,
70,
12,
-37,
41,
-24,
-16,
3,
10,
23,
-22,
46,
-44,
8,
6,
3,
0,
32,
2,
-23,
-1,
36,
0,
25,
30,
20,
26,
-13,
58,
58,
31,
13,
-5,
9,
12,
-13,
15,
-60,
-66,
-32,
-13,
-15,
-1,
19,
22,
20,
0,
-8,
-36,
0,
-15,
42,
49,
6,
-28,
31,
-18,
3,
32,
12,
-14,
33,
33,
4,
27,
11,
-1,
-36,
-36,
-28,
8,
35,
74,
47,
-33,
-10,
4,
-29,
40,
15,
-22,
0,
-45,
17,
-31,
5,
6,
38,
5,
12,
-37,
-12,
-16,
-31,
15,
-21,
15,
-12,
-20,
14,
-1,
-5,
-39,
-24,
-14,
22,
-4,
8,
-31,
30,
-38,
0,
-20,
-59,
21,
52,
11,
35,
-30,
-30,
7,
11,
-5,
-6,
-46,
4,
9,
-10,
24,
14,
-3,
-1,
0,
-17,
-10,
-8,
-29,
-31,
37,
0,
-8,
-7,
-13,
-35,
6,
5,
11,
-6,
-28,
-2,
14,
54,
-5,
-6,
35,
-38,
-35,
35,
-42,
-31,
60,
30,
3,
43,
-17,
31,
22,
4,
-1,
-13,
0,
-31,
24,
42,
14,
-15,
10,
7,
-8,
-25,
24,
-12,
-10,
2,
-44,
-21,
1,
-16,
0,
4,
7,
-51,
10,
35,
-13,
-30,
-11,
26,
-7,
6,
52,
8,
25,
-35,
8,
19,
-17,
-32,
1,
17,
5,
23,
-54,
23,
-7,
-16,
42,
21,
-16,
-18,
-42,
39,
-1,
33,
-69,
-37,
-18,
-4,
4,
-12,
-5,
3,
51,
9,
-48,
-45,
18,
-32,
3,
-21,
49,
10,
-9,
-52,
75,
-44,
27,
18,
-12,
53,
-8,
27,
-3,
-4,
26,
-26,
24,
9,
-28,
18,
-27,
12,
-4,
-16,
-22,
0,
7,
-39,
-8,
-68,
23,
-9,
7,
-22,
-68,
-6,
43,
65,
-9,
11,
-27,
-2,
11,
32,
-29,
-36,
32,
-15,
55,
-15,
-39,
-32,
-13,
-9,
10,
-27,
38,
26,
0,
25,
33,
36,
-24,
1,
75,
-9,
26,
8,
39,
-3,
-22,
-87,
-18,
9,
36,
-58,
-35,
-18,
-19,
8,
-53,
6,
-13,
-39,
-27,
-70,
12,
-13,
-4,
9,
10,
56,
-8,
15,
2,
-17,
4,
-21,
1,
-28,
0,
24,
36,
-33,
6,
-31,
-6,
-25,
-8,
67,
26,
32,
4,
4,
13,
-2,
-8,
-60,
-28,
11,
11,
30,
-7,
11,
16,
11,
-29,
5,
21,
-16,
-25,
28,
-15,
12,
-8,
14,
-40,
-39,
11,
34,
-37,
-25,
22,
12,
8,
-27,
38,
18,
-34,
1,
-47,
23,
-14,
33,
11,
-52,
21,
41,
-24,
20,
3,
-5,
-14,
-1,
-10,
-2,
-48,
-22,
-4,
0,
45,
37,
17,
3,
23,
-36,
1,
-9,
-53,
9,
-35,
-3,
-9,
-5,
36,
1,
24,
-39,
17,
-4,
8,
-25,
-35,
-46,
1,
39,
-15,
-25,
16,
8,
-4,
-4,
-9,
-65,
12,
-47,
-8,
28,
-6,
-6,
-23,
27,
11,
8,
11,
-35,
2,
1,
-5,
22,
33,
22,
52,
18,
-1,
17,
-8,
-41,
3,
-4,
2,
-10,
-13,
-4,
9,
28,
58,
-12,
14,
-34,
-22,
-14,
12,
-47,
-21,
3,
22,
4,
-36,
21,
-73,
16,
30,
0,
-21,
-24,
-16,
0,
-11,
7,
7,
-26,
-21,
-3,
-11,
-19,
22,
-42,
-8,
0,
-53,
-21,
-16,
-37,
31,
-20,
3,
-6,
7,
13,
-28,
2,
-39,
17,
-16,
-38,
-19,
-8,
-49,
4,
-1,
-21,
1,
26,
70,
4,
38,
69,
-14,
33,
25,
-75,
45,
4,
-10,
40,
27,
-4,
-3,
5,
-24,
-28,
1,
35,
8,
49,
-25,
28,
41,
34,
54,
14,
-4,
-49,
-66,
57,
62,
-46,
-11,
9,
-1,
41,
-14,
-53,
-11,
-24,
43
] |
Butzel, J.
Defendants, Bolland Durfee and wife, residents of the township of Litchfield, Hillsdale county, Michigan, are the owners of a farm of 270 acres, or thereabouts, located within a mile and a half of their home. Mrs. Durfee is the sister of Samuel B. Chamberlain, who, with his wife, occupy the farm and are plaintiffs herein. Defendants served a three-months’ notice to quit on plaintiffs, and thereafter brought suit before a justice of the peace for Litchfield township to recover possession of their 270-acre farm. Plaintiffs thereupon began the instant suit to restrain the summary proceedings brought against them. They allege that Durfee, incapacitated on account of blindness, had required assistance to run the farm; that he and his wife importuned plaintiffs to take charge of the farm and run it during the lifetime of Chamberlain and his wife and their survivor; that the defendants were to furnish the horses, tractors, and also the tools on the farm as long as they remained serviceable, the tools to be put in first-class condition by them, and the plaintiffs to furnish new tools and equipment when the old ones were worn out; that the profits were to be divided equally between the parties, but that defendants were to pay all necessary hired help and the taxes on the real estate; also that the elderly aunt of Mr. Chamberlain and Mrs. Durfee was to receive $5 a week, and Mrs. Chamberlain was to receive $400 from Mrs. Durfee upon the death of the aunt to pay for looking after her; that above all, plaintiffs were to have an “agreeable * * * peaceful home.” The entire agreement as alleged in the bill of complaint was never reduced to 'writing.
Owing to the illness of the circuit judge, plaintiffs presented their bill of complaint to the circuit court commissioner of Hillsdale county, and sought the issuance of an injunction to restrain defendants from taking any action to remove plaintiffs from the premises. Notwithstanding the fact that the bill of complaint showed that notice to quit had been given and summary proceedings begun, no notice of the application for the injunction was given to defendants, and no bond was exacted of plaintiffs upon the issuance of an injunction by the circuit court commissioner. Defendants for this reason treated the injunction as a nullity, and proceeded to take judgment in the summary proceedings. They also made a motion for a dissolution of the injunction, which was heard by a judge of another county acting in Hillsdale county. He dismissed the injunction, but indorsed on the wrapper of the orig inal bill of complaint an order for an injunction in accordance with the prayer of the bill. This was done, however, after his attention was called to the fact that a judgment of restitution had been rendered in favor of defendants against plaintiffs. No bond, however, was exacted by him. Mandamus is sought by defendants to order the judge to set aside his order for the issuance of an injunction.
The injunction originally issued by the circuit court commissioner was an absolute nullity, as he had no jurisdiction to issue an injunction restraining an action at law without exacting a bond and without notice to defendants. 3 Comp. Laws 1929, § 13702, authorizes circuit court commissioners to do any act a circuit judge might do 4 4 except as herein otherwise provided.” Section 13708 provides as follows:
"The Supreme Court shall have power, by general rules, to prescribe any other cases in which circuit court commissioners shall not be authorized to grant any orders in relation to suits, and to prescribe the terms and conditions upon which orders may be granted in any specified class of cases; and also, by order in any particular case to forbid the interference of any such commissioner.”
Sections 2 and 4 of Court Eule No. 46 (1931) provide that no injunction to stay proceedings at law shall be granted without reasonable notice to the adverse party, and no injunction shall be granted in any case where no special provision is made by law for security unless a bond is given. The circuit court commissioner could not issue an enforceable injunction unless these two mandatory provisions were observed. In Lawton v. Richardson, 115 Mich. 12, an injunction was issued without bond to restrain the defendant from proceeding to sell goods under a writ of attachment. We held the injunction a nullity. The injunction issued by the circuit court commissioner in the instant case is also a nullity. See, also, In re Briggs, 178 Mich. 28; Fletcher Paper Co. v. Railway, 175 Mich. 234; Quail v. Wayne Circuit Judge, 249 Mich. 425.
The circuit judge also erred in indorsing upon the wrapper of the bill of complaint an order for an injunction without exacting a bond. The law is likewise mandatory that, after verdict, a circuit judge shall not issue an injunction to stay proceedings at law for the recovery of any lands, unless proper bond is given. 3 Comp. Laws 1929, § 14355.
Defendants in a sworn answer deny plaintiffs’ charges. They further contend that the bill of complaint fails to show a case for equitable relief; that the alleged agreement cannot rest on parol, and that if plaintiffs are entitled' to any relief their sole remedy is an action at law. A determination of these questions is not necessary for decision.
The injunction was improperly issued, and mandamus will issue to set it aside. Defendants will recover costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
-31,
33,
-4,
-4,
-33,
-6,
-22,
10,
4,
7,
-7,
-61,
30,
32,
-13,
-22,
-2,
-16,
-18,
-10,
-28,
-7,
8,
-19,
-25,
-25,
-38,
-9,
-2,
45,
-10,
-35,
-9,
11,
0,
-43,
20,
-5,
-11,
-7,
-2,
9,
91,
-12,
-14,
-4,
5,
34,
28,
-11,
-15,
-11,
10,
20,
-22,
-3,
-37,
-16,
-23,
-24,
-3,
-7,
29,
-34,
-9,
51,
-20,
-5,
-29,
-3,
4,
34,
-11,
-22,
-6,
-31,
-19,
19,
-13,
17,
0,
-34,
43,
-35,
-20,
-64,
-34,
34,
-12,
-9,
-44,
-14,
-48,
70,
47,
3,
-6,
44,
1,
-4,
-26,
2,
1,
49,
-28,
-7,
-23,
43,
-46,
7,
3,
10,
37,
16,
8,
-44,
-44,
-21,
-26,
32,
4,
-58,
52,
13,
-3,
11,
-4,
0,
25,
13,
68,
-22,
6,
1,
-19,
-3,
30,
-16,
-9,
-17,
43,
-11,
-21,
-20,
22,
8,
-30,
0,
-16,
17,
6,
8,
-2,
50,
53,
-17,
39,
-34,
48,
-15,
18,
14,
-19,
-13,
-42,
-35,
-30,
16,
16,
25,
25,
0,
1,
11,
-9,
-33,
3,
0,
2,
46,
21,
-15,
-19,
-28,
-59,
-39,
-14,
-36,
-48,
14,
6,
-28,
20,
4,
4,
32,
6,
24,
-41,
8,
50,
-9,
-14,
43,
45,
-45,
48,
-21,
-27,
-43,
-41,
-45,
0,
36,
9,
-4,
6,
33,
-28,
0,
57,
34,
-17,
57,
-26,
-59,
-21,
-15,
5,
-25,
-6,
-11,
42,
14,
-15,
-54,
-20,
-5,
31,
7,
-59,
-49,
20,
16,
-15,
8,
0,
1,
-34,
49,
-2,
26,
-20,
16,
-14,
-11,
-37,
-17,
-11,
22,
-4,
-9,
-14,
49,
69,
-45,
-7,
43,
2,
-11,
38,
-44,
20,
6,
-54,
-56,
-4,
-14,
41,
-28,
31,
14,
-34,
-1,
19,
8,
61,
-14,
-45,
-32,
8,
11,
-60,
-33,
29,
66,
28,
-54,
-7,
53,
-35,
14,
-65,
5,
48,
7,
-18,
-26,
19,
-9,
-32,
-7,
34,
-35,
-19,
36,
2,
5,
32,
-53,
-7,
12,
-23,
35,
-40,
16,
-18,
-13,
1,
35,
-6,
-1,
-13,
23,
-16,
8,
43,
8,
-13,
-53,
7,
31,
0,
62,
31,
11,
25,
0,
25,
-5,
-9,
-11,
-8,
-9,
16,
-23,
12,
13,
-32,
27,
28,
11,
-48,
31,
-53,
-7,
7,
-8,
8,
12,
-3,
14,
6,
25,
-23,
36,
17,
-22,
-10,
63,
29,
5,
-10,
22,
28,
6,
20,
3,
28,
54,
-38,
-25,
12,
27,
4,
-27,
0,
-31,
-31,
-6,
25,
-1,
-22,
19,
6,
-11,
11,
-22,
-8,
3,
-4,
-10,
32,
11,
10,
8,
-3,
-38,
-6,
27,
28,
37,
6,
-14,
-2,
-1,
2,
-11,
0,
-2,
27,
13,
6,
39,
49,
11,
-22,
11,
9,
34,
2,
22,
-16,
8,
-9,
-18,
-20,
35,
50,
-15,
-20,
-27,
-48,
12,
6,
4,
25,
45,
-6,
-19,
-18,
-12,
-16,
-17,
-1,
15,
-4,
-13,
30,
14,
-6,
40,
14,
-11,
22,
-41,
2,
14,
14,
55,
-27,
-24,
-7,
26,
-11,
3,
23,
46,
0,
17,
45,
18,
16,
49,
-9,
5,
9,
-12,
30,
35,
5,
28,
41,
9,
48,
36,
-16,
-17,
-7,
21,
23,
-46,
-17,
0,
-16,
48,
85,
-37,
23,
18,
0,
1,
-21,
-13,
-5,
36,
17,
21,
24,
-18,
13,
-45,
-7,
-40,
2,
-29,
8,
28,
-13,
-17,
-10,
1,
45,
18,
3,
-22,
-4,
-23,
30,
-25,
5,
-58,
7,
-18,
22,
31,
-25,
-44,
16,
-9,
-23,
-24,
-11,
31,
58,
-27,
32,
-26,
25,
16,
19,
8,
38,
-6,
23,
5,
-39,
-10,
-31,
-23,
-38,
11,
10,
-10,
16,
20,
4,
-10,
-30,
-11,
1,
2,
-42,
-45,
-36,
-13,
-10,
16,
22,
58,
-35,
11,
-63,
-18,
6,
-25,
-64,
-11,
15,
5,
-3,
-1,
-26,
-13,
59,
41,
-1,
-18,
16,
29,
13,
-20,
5,
-7,
17,
-3,
25,
-19,
-31,
-14,
-57,
-27,
-2,
-6,
-18,
33,
22,
104,
-66,
-13,
-24,
-14,
-51,
3,
-24,
-78,
24,
-21,
-16,
-7,
-33,
16,
29,
0,
-10,
3,
24,
-19,
-19,
-50,
58,
19,
-45,
-34,
20,
-36,
4,
-8,
-33,
45,
44,
-1,
-11,
-3,
5,
-41,
27,
64,
7,
22,
26,
8,
13,
3,
25,
11,
-13,
7,
-11,
-15,
10,
-17,
-18,
-15,
14,
-27,
-2,
27,
-15,
0,
42,
20,
6,
-5,
-34,
41,
5,
-48,
-7,
-37,
19,
-3,
37,
-18,
-11,
32,
-26,
-16,
25,
-17,
-32,
-36,
-48,
-44,
-30,
-58,
12,
-41,
5,
14,
34,
40,
21,
6,
9,
15,
-4,
-8,
-51,
-5,
1,
-40,
-13,
-43,
63,
16,
22,
29,
-12,
-1,
13,
-20,
-9,
25,
29,
-38,
-22,
-1,
-10,
-3,
4,
31,
-28,
-34,
5,
-32,
-19,
-53,
-7,
8,
16,
65,
-39,
-16,
68,
-28,
39,
17,
4,
-39,
35,
-20,
-18,
-28,
16,
-6,
39,
12,
28,
-14,
3,
-24,
-8,
-14,
-13,
32,
24,
26,
-33,
-6,
-3,
37,
8,
84,
-38,
-5,
-17,
-6,
-18,
35,
41,
38,
13,
10,
-7,
-24,
-16,
25,
-2,
31,
-36,
0,
9,
-15,
-25,
-22,
19,
-21,
-13,
-24,
52,
-15,
-4,
19,
-17,
10,
1,
27,
-22,
20,
11,
-14,
-40,
-17,
7,
-12,
6,
-4,
-10,
-37,
-20,
-43,
-3,
3,
-27,
-47,
0,
18,
-53,
27,
14,
-1,
-12,
-28,
-20,
-13,
-21,
1,
-29,
0,
8,
-39,
-28,
24,
33,
17,
-15,
-15,
-15,
38,
-4,
-16,
-35,
38,
-27,
23,
27,
-21,
-13,
18,
13,
18,
-16,
28,
-17,
51,
-41,
-79,
50,
1,
-25,
42,
-13,
7,
-29,
10,
9,
37,
-2,
28,
-5,
-24,
-58,
-10,
-22,
16,
-24,
7,
15,
-18,
-12,
0,
-43,
-29,
-40,
19,
-10,
26,
19,
27,
3,
-47,
-55,
-75,
1,
-12,
61,
-50,
35,
-9,
47,
32,
-38,
-20,
33,
33,
8,
-3,
-7,
66,
-52,
15,
12,
-3,
-32,
7,
0,
-7,
35,
31,
-42,
-3,
24,
-27,
-11,
-44,
-29,
34,
26,
33,
-11,
-11,
-8,
-12,
56,
-22,
14,
92,
33,
-48,
-17,
-31,
-69,
23,
-11,
11,
-19,
-45,
-85,
-23,
2,
4,
21,
12,
6,
-1,
-30,
25,
-37,
-15,
0,
-11,
16,
62,
4,
-18,
66,
24,
38,
57,
-37,
28,
46,
0,
17,
-15,
-7,
-21,
10,
4,
0,
-2,
-5,
49
] |
Per Curiam.
Alleging a denial of the rights he seeks to enforce, Edward T. Fitzgerald, a member of the Michigan public utilities commission, has filed a petition asking for the issuance of an order to his fellow members of the commission to show cause why they should not be mandamused to give petitioner proper notice of all meetings, and keep proper records of what transpires at them, and further give him prompt, complete, and unrestricted access to all official mail, books, records, financial reports, and data of the commission.
Eespondents, answering in separate affidavits of themselves and others, allege that petitioner has in no way been denied the rights he seeks, but, on the contrary, has failed to exercise them and neglected to properly attend to his duties as commissioner; that he has persistently absented himself from the frequent meetings of the commission, and, even when he has attended them, frequently he has remained for only a brief interval, and then left to attend to his private business; and very often he has absented himself from his office and the city of Lansing, where hearings are had, and that his whereabouts could not be ascertained in order to summon him to meetings; that out of 414 cases reported during the first six months of the current year, petitioner has not participated in approximately 70 per cent, of them; that the commission frequently first learns of his individual views on matters pending by reading statements of petitioner in the public press, notwithstanding the fact that he has failed to give such matters proper study and consideration; that the work of the commission has grown to such an extent that it became necessary to adopt proper rules in reference to the files and correspondence, and that by vote of the commission it was determined that for expedition each case, with file and all correspondence relating thereto, be first referred to an individual commissioner for study and report, and while in his hands, such file is withdrawn from the file room and all correspondence received is immediately referred to the commissioner, but that at all other times the files and correspondence in the file room are available to the commissioners. We do not doubt that respondents will concede the right of a commissioner, on proper request and at times mutually convenient, to inspect files and correspondence in the hands of the reviewing commissioner.
There seems to be no serious dispute as to the respective rights and duties of the parties, and it would serve no useful purpose to order a reference to take testimony and decide issues of fact which, even if decided adversely to respondents, would only result in an order that they do what they maintain they have always been and are willing to do. It would be far better that the attention of the commissioners be not diverted from the large amount of public business they have to attend to. With the assurance of respondents as given in the affidavits, and a reasonable effort by petitioner and the other commissioners to work together, no further difficulties should arise. If they do, a new application may be made.
The present petition is denied, without costs. | [
17,
-54,
45,
26,
0,
46,
11,
7,
0,
43,
14,
-34,
38,
23,
-5,
-12,
19,
1,
13,
7,
0,
-40,
20,
32,
-12,
-15,
5,
42,
-35,
-24,
8,
4,
-21,
-12,
33,
-36,
52,
-12,
20,
28,
-2,
-3,
28,
-38,
-24,
-107,
18,
46,
9,
-65,
-6,
51,
0,
36,
-52,
-16,
12,
-17,
38,
-31,
-51,
23,
11,
0,
-3,
2,
-1,
14,
1,
8,
-3,
42,
-17,
0,
29,
56,
21,
-80,
0,
50,
-62,
27,
-17,
-13,
1,
13,
32,
-9,
65,
-53,
23,
-62,
-50,
22,
43,
5,
-1,
-26,
60,
-31,
-12,
33,
-24,
51,
34,
19,
20,
-18,
13,
-38,
11,
-24,
-38,
-31,
-44,
-9,
7,
27,
-27,
-89,
14,
6,
-15,
3,
-1,
10,
49,
-28,
-86,
58,
15,
31,
61,
-29,
43,
26,
1,
-20,
34,
26,
-14,
-1,
65,
16,
3,
31,
-25,
26,
12,
5,
58,
5,
-6,
8,
-51,
0,
-37,
-53,
71,
9,
44,
55,
-34,
-54,
-15,
7,
-38,
11,
51,
44,
0,
-6,
1,
-6,
-13,
-92,
14,
30,
1,
-19,
-2,
10,
-4,
-26,
16,
2,
13,
-36,
-28,
-62,
27,
-22,
26,
2,
2,
24,
8,
59,
-7,
20,
21,
-9,
34,
24,
-21,
0,
4,
9,
11,
53,
38,
13,
-15,
-28,
16,
-8,
40,
-2,
1,
15,
-2,
-1,
0,
-63,
1,
49,
2,
6,
-49,
-44,
28,
6,
69,
7,
17,
34,
44,
15,
62,
37,
-17,
43,
-32,
-34,
-6,
-35,
-54,
-21,
-47,
17,
-15,
-42,
25,
-26,
-31,
-22,
9,
13,
10,
-20,
29,
-3,
18,
32,
-11,
-4,
-6,
-16,
56,
2,
-1,
35,
-10,
10,
-20,
31,
38,
-26,
-15,
-30,
2,
9,
2,
37,
-46,
-5,
47,
7,
-13,
21,
19,
9,
-3,
32,
58,
15,
14,
-13,
20,
-7,
-15,
5,
-13,
-24,
-6,
34,
-40,
-8,
27,
-1,
38,
12,
-14,
-22,
-2,
-7,
5,
11,
67,
-7,
19,
13,
0,
-19,
-15,
-37,
48,
12,
29,
-55,
20,
22,
10,
13,
7,
40,
17,
-68,
-40,
-7,
30,
-16,
-8,
4,
-42,
-8,
9,
-68,
-24,
-1,
-20,
54,
6,
14,
-26,
41,
-27,
-51,
-34,
-5,
-5,
50,
-55,
-9,
-28,
-9,
-63,
-10,
54,
29,
-27,
-38,
11,
-8,
-6,
-21,
42,
0,
-30,
11,
-11,
-15,
-17,
-13,
11,
25,
-52,
29,
7,
-36,
-35,
-9,
-24,
22,
-33,
30,
32,
13,
-3,
63,
18,
9,
-37,
46,
-1,
13,
21,
-6,
46,
24,
59,
-37,
5,
-2,
-1,
22,
44,
1,
73,
-45,
1,
-10,
-21,
-18,
24,
-49,
-5,
28,
2,
24,
-1,
-38,
-10,
-34,
-53,
18,
-33,
-67,
-17,
-17,
-13,
7,
6,
-10,
9,
-16,
-8,
34,
1,
13,
33,
44,
-1,
18,
-68,
30,
-2,
22,
17,
-26,
-60,
-1,
7,
-14,
-1,
41,
-19,
30,
29,
-14,
8,
35,
-38,
29,
-41,
-38,
-44,
-7,
-11,
0,
-5,
4,
8,
-20,
-48,
3,
29,
-4,
2,
10,
35,
26,
-43,
-17,
-10,
22,
-14,
-68,
38,
55,
27,
-3,
-31,
4,
10,
-11,
-18,
24,
37,
29,
-8,
-23,
12,
4,
-57,
79,
18,
-42,
1,
1,
-13,
-28,
-33,
-46,
-25,
-7,
7,
-30,
32,
-20,
-4,
-2,
9,
-10,
21,
0,
3,
16,
-54,
14,
16,
56,
19,
33,
83,
-2,
-25,
10,
3,
-40,
-8,
-18,
-18,
-5,
-37,
17,
35,
-8,
-10,
-2,
-37,
-17,
16,
-49,
-7,
35,
-23,
63,
40,
-6,
19,
19,
-7,
-27,
35,
43,
22,
4,
31,
-8,
49,
-47,
-21,
-1,
11,
-55,
-12,
-3,
-14,
-48,
-43,
-28,
-49,
-24,
7,
54,
-17,
0,
34,
19,
-16,
-18,
-12,
10,
-11,
47,
-2,
32,
-10,
-52,
-9,
-68,
-11,
-9,
-6,
28,
-46,
-12,
58,
11,
37,
-12,
50,
-28,
-39,
-25,
69,
0,
34,
6,
-13,
-20,
6,
0,
52,
-21,
-12,
23,
29,
55,
-3,
-24,
-28,
-24,
42,
-13,
37,
30,
12,
54,
5,
27,
24,
-9,
-9,
16,
2,
0,
40,
20,
4,
-39,
-45,
12,
35,
3,
-1,
-21,
37,
20,
43,
37,
-15,
-60,
-10,
-31,
29,
-30,
21,
12,
-30,
8,
-8,
7,
25,
4,
-4,
3,
-9,
-4,
-6,
-29,
23,
24,
-21,
-25,
-19,
7,
20,
33,
-63,
32,
15,
29,
-69,
-22,
-6,
-27,
-8,
-10,
36,
-63,
-7,
10,
34,
3,
0,
24,
9,
-42,
-57,
-18,
6,
14,
9,
19,
-36,
-24,
-29,
-28,
-14,
-16,
21,
-8,
0,
-18,
-13,
-46,
-24,
7,
30,
26,
33,
-77,
9,
-26,
12,
-11,
-40,
9,
-22,
-40,
13,
18,
28,
41,
-23,
-15,
-7,
38,
15,
-32,
38,
-15,
-44,
-7,
-13,
29,
29,
11,
15,
-26,
6,
-42,
-28,
3,
-7,
-22,
34,
-10,
-16,
17,
21,
16,
2,
-10,
-37,
-22,
-31,
-14,
2,
-50,
-31,
-25,
10,
46,
6,
0,
-2,
-1,
17,
3,
-10,
-1,
-38,
-35,
-1,
6,
-73,
33,
-49,
12,
-34,
11,
39,
-64,
-4,
13,
12,
-18,
-2,
32,
-6,
-7,
-33,
-6,
15,
12,
20,
5,
31,
-3,
-5,
12,
0,
-5,
-37,
-5,
4,
-4,
-56,
-6,
-60,
-20,
-13,
-6,
-19,
40,
-6,
41,
1,
-4,
-28,
-9,
51,
-9,
-9,
-29,
22,
0,
2,
30,
17,
-41,
28,
2,
-43,
-53,
56,
18,
25,
-30,
10,
-65,
-6,
-17,
26,
-19,
6,
-35,
-20,
-26,
14,
-85,
40,
33,
27,
-32,
-27,
17,
34,
-41,
-36,
47,
-18,
-18,
31,
27,
-43,
41,
5,
1,
10,
-11,
-29,
67,
23,
1,
-6,
11,
18,
-9,
-76,
-18,
-7,
-53,
14,
-33,
6,
-8,
-25,
24,
-25,
-32,
-28,
-14,
23,
6,
21,
15,
0,
-49,
-29,
-4,
70,
-14,
27,
-2,
19,
-3,
-18,
-2,
-29,
-22,
-20,
4,
-69,
4,
29,
38,
-27,
-8,
45,
-2,
-5,
83,
-23,
-1,
-18,
7,
15,
15,
5,
0,
3,
-15,
10,
-29,
-26,
29,
31,
33,
-51,
10,
-53,
32,
-41,
-25,
11,
-25,
4,
-25,
-14,
21,
-5,
58,
-33,
-39,
-38,
-21,
27,
37,
19,
-63,
5,
-7,
-14,
49,
36,
22,
7,
9,
-62,
-11,
7,
5,
11,
-13,
19,
48,
-21,
2,
4,
38,
35,
8,
-5,
-30,
3,
-47,
-33,
-27,
-25,
10
] |
Butzel, J.
In 1923, Arthur D. Washburn, as an original incorporator, acquired a substantial interest in the Ironwood Auto Service Company. In 1930, he purchased a large block of stock held by Dr. L. O. Houghten, then a majority stockholder. After the declaration of a 66 2/3 per cent, stock dividend, Washburn held 376 of 500 shares of stock outstanding, according to a finding by the trial court. The par value of this stock was $100 per share.
In 1923, at or about the time Washburn first acquired his interest in the company, he and his wife borrowed $5,000 from the Iron National Bank of Ironwood, Michigan, and, as security therefor, gave a mortgage on an interest in some Wisconsin lands. The mortgage note was renewed on September 29, 1924. Defendant introduced as evidence of the deposit of collateral for this renewal note a duplicate carbon receipt, found in the records of the bank, and reading as follows:
“Received of A. D. Washburn Certificate No. 2 Ironwood Auto Service Co. — for (50) shares of stock — par value $5,000 held as collateral to note of Margaret Washburn and A. D. Washburn dated September 29, 1924. Sept. 14, 1925. Iron National Bank, By F. R. Burrell, Cashier.”
The $5,000 note was renewed from time to time and small payments were made thereon. It is conceded that the sum of $3,650 is still due on the last renewal note, dated January 10, 1931.
In 1930, when Washburn acquired Dr. Houghten’s stock in the Ironwood Auto Service Company, priced at $19,000, he required a large sum of money to consummate the deal. He borrowed $7,000 from the Iron National Bank, giving his notes for $5,000 and $2,000, respectively. The latter note was indorsed by the Ironwood Auto Service Company, and has since been paid and returned to Washburn. Wash-burn still owes the bank $8,650, the aggregate of the $5,000 note and the $3,650 renewal note dated January 10, 1931. To complete the purchase, Washburn also borrowed $10,000 from the City National Bank of Duluth, Minnesota, on a note indorsed by Fred R. Burrell, cashier of the Iron National Bank, and guaranteed by Bernard A. Morgan, president of the latter institution and a brother-in-law of Washburn. This note recited that it was secured by a pledge of 160 shares of stock of the Ironwood Auto Service Company. Successive renewals were made for lesser amounts, reciting the pledge of a smaller number of shares as collateral, until the entire sum was paid. Dr. Houghten still holds a note for $3,000 which is as yet unpaid.
Fred R. Burrell, cashier of the Iron National Bank of Ironwood, acted in a dual capacity, both as Washburn’s banker and as his confidential agent. Burrell, who had been admitted to the practice of law in Minnesota, took charge of the amendment of the Auto Service Company articles and all other legal steps necessary to authorize an increase of the capital stock. Shortly after the purchase of the Houghten shares, the stock book of the Auto Service Company was delivered to Burrell at the bank. The book, which was kept in a drawer in his desk, contained a large number of stock certificates duly executed, including those which are the subject of this controversy. They were made out to Washburn ■and indorsed in blank by him. It is the claim of plaintiffs that the stock book was delivered to Burrell solely for the purpose of checking up the certificates and also to enable him to deliver shares to future purchasers of the stock. The validity of a number of deliveries purporting to have been so made is not questioned.
Following the sudden and violent death of Burrell on May 22, 1931, the affairs of the Iron National Bank were examined, the hank closed, and Daniel Waite appointed receiver by order of the comptroller of currency. Among the. assets of the bank were found Washburn’s notes for $3,650 and $5,000, as hereinbefore described. In the collateral file, kept in a safe inside the large bank vault and under the sole control of Fenton J. Manning, formerly assistant cashier and now aide to the receiver, were found 134 shares of stock of the Ironwood Auto Service Company, represented by certificates for 54, 50, 25 and 5 shares, respectively. They were filed under Washburn’s name.
It was the custom of the bank to keep all of its notes, including those involved in the present suit, in a note file consisting of two divisions, one for the notes maturing during the current month and the other for those due later. All collateral to notes was alphabetically arranged and kept in three files, distinct and separate from the note file. Manning alone had the combination of the inner vault in which collateral was kept, and Burrell was unable to open it. Currency was placed on one side of the inner safe or vault and collateral on the other. The two Washburn notes contain no collateral provisions, except that on the left-hand side of the first note given for $5,000 and secured by the Wisconsin land, there is written in lead pencil the word “collateral.” On the right-hand side of the $5,000 note given to the Ironwood bank on September 27, 1930, which is still unpaid, there is also penciled the abbreviation ‘ ‘ coll. ’ ’ The testimony failed to reveal definitely the circumstances under which these notations were made.
Other shares of stock claimed by Washburn were found in the files. A note signed by Chris P. Banderob for $2,000 was found, attached to two certificates representing 25 shares of stock in Wash-burn’s name and indorsed in blank by him. A certificate for 20 shares was also found attached to the note of the Mahquah Company, a Minnesota corporation. Ten more shares, securing a note of Fred R. Burrell, were discovered in the collateral file.
Upon Washburn’s failure to make payment of the $3,650 and $5,000 notes, the receiver gave notice of a pledge sale in accordance with 2 Comp. Laws 1929, §§ 9561-9563. The sale was held on April 9, 1932, and the 134 shares of stock claimed to have 'been pledged by Washburn were bid in by the receiver for the sum of $1,000. Prior to the posting of the notice of sale, there had been considerable discussion and some correspondence between the receiver and Washburn and his attorney in regard to the Banderob, Mahquah Company, and Burrell collateral. It seemed to be taken for granted that there was no irregularity in regard to the 134 shares alleged to have been pledged by Washburn, though the record does show that Washburn made some objections which he was apparently willing to waive, provided he was given an extension of time in which to pay the notes. It appears that the receiver at one time was also willing to grant the extension, provided new notes were executed conferring upon the receiver the right to sell the pledge at public or private sale. Washburn claims that these negotiations were solely for the purpose of settlement, and that testimony in regard to them is therefore improper. It is unnecessary to discuss this question at the present time,
Preceding the sale of the 134 shares of stock, Washbnrn and his wife filed a bill against Daniel Waite, receiver of the Iron National Bank of Ironwood, seeking to enjoin the sale. It was alleged by-plaintiffs that the receiver had in his possession 179 shares of stock belonging to Arthur Washburn, and that defendant receiver had threatened to sell 134 shares at public sale on the theory that they constituted collateral for loans made to Washburn. While the main relief sought in the bill is the enjoining of the sale, there is the usual clause asking for further and equitable relief. Defendant claimed at the hearing that, due to the manner in which the bill was framed, he had reason to believe that the rights in the 134 shares would be the only question considered, and that he was for that reason unprepared to meet the issues in regard to the other shares.
At the hearing, it was believed by all parties that Banderob, supposedly the maker in one of the collateral notes, was a fictitious person. The trial judge was very much impressed with the claim that, if Burrell was dishonest with regard to the Banderob note, he had acted fraudulently in respect to the Washburn pledge and other transactions considered at the hearing. It was claimed that Wash-burn was a man of responsibility, and that Burrell had converted stock certificates of the Ironwood Auto Service Company, belonging to Washburn, and had applied them as collateral to various notes in order to avoid criticism by the national bank examiners. The record is very incomplete in this regard, as well as in many others. The trial court handed down an opinion finding in favor of plaintiffs on July 8,1932, and holding that the application of the shares of stock-as collateral was unauthorized in each and every case. A motion for rehearing was made and denied before a final decree was rendered on November 11,1932.
The bill of complaint was filed on April 8, 1932, and the hearing, lasting bnt two and a half days, began on May 10, 1932. Attorney for defendant claims that he was given insufficient notice of hearing, that the trial judge inversed his usual order of business by calling the chancery cases first. We accept the judge’s statement that due notice was given of this change in procedure. Such unusual developments are set forth in the petition for rehearing, however, that we are constrained to believe that it should have been granted, particularly in view of the fact that only the brief interval of 32 days elapsed between the time the bill was filed and the hearing. When it became apparent at the hearing that the rights in the entire 179 shares of stock were going to be put in issue, there was insufficient time to meet the new issues. Several of the affidavits accompanying the petition were signed by witnesses who were out of the State and unavailable during the hearing. On the showing made by defendant in his petition, and in view of the fact that the newly-discovered evidence would add to a record severely limited by the prohibition of testimony as to matters equally within the knowledge .of the deceased (3 Comp. Laws 1929, § 14219), we believe that a rehearing will be of material aid in arriving at the truth. We appreciate the necessity for a prompt and final disposition of litigation and.are not unmindful of the reluctance of our court to grant such petitions. Saginaw Suburban R. Co. v. Connelly, 146 Mich. 395; Lisiak v. Lupienski, 241 Mich. 119. However, we believe the peculiar circumstances present in this case merit a rehearing. In Sheldon v. Hawes, 15 Mich. 518, it was said, with reference to a similar petition:
“Nor is the testimony merely cumulative in any proper sense of the term. It is the only positive testimony which has come to light in the whole record, except that of the interested parties, and, if true, it would entirely overthrow the case sworn to by the complainant. We think justice required that testimony of this kind should be secured, and that the cause should have been opened for that purpose.
“We do not think the case, as presented by the other testimony in the cause, is by any means satisfactorily made out, in such a way that we should feel at all confident that we could fully see through the mystery in which it is involved. We therefore prefer reversing the decree on the ground already mentioned, and opening the case to further light, instead of deciding it upon the imperfect proofs now in.”
On the present record, w'e are much impressed with defendant’s claims as to the 134 shares and are in considerable doubt as to the rights in some of the other shares. However, in view of the unsatisfactory condition of the record and the fact that there is to be a rehearing, we reserve final decision in regard to all of the shares.
Defendant’s petition for rehearing was promptly filed. It referred to the annexed affidavit of Charles Banderob, theretofore supposed to have been a fictitious person. Banderob showed that he resided in Duluth, Minnesota, and that he had given the bank his note for $2,000, secured by 20 shares of Ironwood Auto Service Company stock. Another affidavit by Dr. Houghten, now residing in California, states that Washburn told him that he had deposited 50 shares of stock with the bank to secure his original $5,000 note; that, some years later, Washburn again told deponent that the 50 shares of stock were still held by the bank as collateral. Still another affidavit, by the vice-president of the City National Bank of Duluth, shows that, notwithstanding the provisions with regard to collateral in the note and renewals thereof, given by Washburn to the City National Bank of Duluth, no collateral ever was actually deposited and the bank looked solely to the guaranty of the notes by Morgan and Burrell. We are further impressed with the fact that, before the court can make a final and binding determination with regard to all matters concerning the Banderob, Mahquah Company, and Burrell notes, Banderob, the Mahquah Company, and the Burrell estate should be joined as parties defendant.
Some question has arisen as to the regularity of the pledge sale. There may have been a slight although not serious irregularity in failing to keep the sale open for an entire hour, as announced at the opening of the sale. Should the chancellor, on a rehearing, find that there was such an irregularity, it is suggested, but not ordered, that plaintiffs be given 10 days from the date of the entry of the decree within which to redeem the stock upon payment of the amount due, together with interest and all lawful charges.
The decree is reversed, with costs to defendant, and the case remanded for a rehearing.
McDonald, C. J., and Potter, Sharpe, North, Feau, and Wiest, JJ., concurred. Clark, J., took no part in this decision. | [
9,
61,
48,
-9,
21,
71,
68,
-33,
26,
-26,
-5,
3,
37,
6,
19,
13,
24,
11,
-1,
-21,
-4,
-85,
-33,
-14,
-17,
-5,
-16,
-42,
-52,
-11,
1,
-6,
-17,
29,
-35,
27,
-59,
-9,
-16,
-23,
-26,
3,
45,
14,
11,
28,
-47,
-53,
4,
-16,
66,
-6,
13,
-35,
6,
5,
-8,
7,
-52,
18,
47,
-85,
31,
54,
40,
-4,
-8,
34,
54,
8,
7,
-36,
2,
11,
-23,
-17,
49,
8,
-45,
-35,
-30,
-55,
28,
-20,
-29,
-4,
-10,
23,
-23,
3,
-25,
-24,
3,
0,
12,
0,
-39,
11,
6,
13,
11,
-71,
36,
35,
8,
29,
36,
-13,
-4,
-48,
-30,
17,
46,
14,
28,
-5,
-32,
9,
16,
20,
-32,
-18,
-32,
-15,
5,
27,
-37,
15,
-58,
-5,
-33,
12,
-6,
51,
25,
-23,
-7,
-33,
-46,
18,
-25,
55,
-28,
38,
-15,
25,
21,
-23,
6,
-10,
-52,
5,
34,
16,
-12,
-12,
-23,
-38,
2,
-49,
-19,
-1,
55,
8,
-60,
11,
-21,
30,
-21,
2,
37,
24,
-30,
-31,
4,
12,
6,
-45,
-52,
-4,
-3,
42,
21,
-24,
6,
-11,
-17,
1,
38,
38,
55,
-4,
-14,
42,
-79,
-6,
-16,
-33,
25,
0,
29,
-59,
-28,
-32,
-14,
29,
24,
73,
3,
29,
8,
72,
36,
-16,
-49,
61,
-13,
-37,
36,
-39,
44,
8,
-28,
34,
6,
-5,
43,
24,
37,
6,
-47,
27,
-29,
14,
-49,
38,
11,
2,
48,
-11,
20,
-53,
21,
19,
-61,
-40,
-48,
-18,
24,
41,
-33,
-18,
-43,
18,
-15,
7,
-20,
2,
12,
-4,
18,
27,
5,
28,
-15,
-26,
-14,
25,
-8,
-10,
19,
-11,
35,
-6,
-25,
-15,
40,
31,
-11,
-45,
42,
-49,
-27,
36,
29,
52,
45,
-3,
-32,
-38,
54,
23,
30,
-28,
2,
21,
24,
-16,
18,
36,
-20,
-29,
-62,
-55,
19,
-7,
-45,
3,
-81,
27,
-7,
-63,
-11,
-10,
51,
-34,
20,
56,
-22,
-23,
12,
60,
-29,
19,
34,
17,
6,
-34,
-9,
-40,
-58,
-53,
-18,
51,
-29,
-68,
12,
28,
51,
-20,
-10,
32,
8,
-25,
25,
-31,
-18,
15,
-13,
0,
-15,
-22,
-23,
46,
-37,
1,
26,
63,
37,
27,
6,
-3,
6,
27,
-25,
-18,
-22,
-29,
-17,
36,
-2,
12,
4,
-28,
32,
-19,
-67,
-22,
-45,
28,
34,
19,
55,
26,
-12,
-3,
1,
-16,
-90,
0,
-53,
65,
-16,
59,
32,
-65,
28,
-59,
-80,
-65,
-54,
24,
-21,
-65,
5,
-12,
42,
11,
52,
0,
24,
-16,
-12,
-55,
2,
-9,
2,
-12,
-71,
-4,
29,
-15,
-38,
32,
14,
-59,
10,
15,
-40,
-5,
-32,
17,
16,
23,
-13,
-40,
-36,
16,
6,
-25,
26,
23,
-7,
-5,
25,
48,
-10,
-13,
72,
2,
-24,
-27,
53,
3,
9,
47,
73,
0,
-2,
-13,
-38,
-32,
69,
30,
-24,
5,
56,
-41,
15,
62,
18,
20,
8,
-23,
-15,
-26,
42,
-41,
-33,
3,
-34,
-9,
24,
16,
-40,
-47,
-65,
-19,
-20,
0,
82,
0,
-19,
-10,
4,
-9,
-24,
-3,
16,
-11,
-36,
-63,
3,
-15,
15,
41,
11,
-53,
-22,
39,
13,
-45,
8,
78,
-19,
20,
-15,
42,
51,
78,
53,
37,
-31,
53,
-13,
-19,
32,
-11,
27,
-54,
0,
-34,
-13,
-38,
23,
-15,
10,
-15,
-38,
24,
-13,
-11,
-16,
9,
-73,
-47,
33,
-67,
-32,
-8,
-91,
-30,
45,
12,
21,
48,
14,
-9,
2,
47,
-10,
31,
2,
-35,
21,
-28,
-45,
6,
-14,
-43,
3,
17,
7,
28,
25,
-36,
-11,
-7,
-25,
10,
-21,
-24,
-4,
-14,
-45,
70,
-4,
21,
-18,
13,
30,
29,
-31,
45,
-4,
43,
46,
17,
67,
35,
-24,
-15,
5,
7,
-22,
-33,
-48,
55,
-27,
-16,
18,
-40,
43,
28,
1,
-6,
2,
17,
25,
-4,
24,
-16,
34,
24,
46,
3,
-3,
41,
-1,
20,
27,
-64,
-63,
8,
-7,
-37,
-11,
17,
-21,
22,
-18,
-42,
10,
-50,
-15,
-21,
-46,
-2,
15,
-29,
-9,
1,
48,
0,
0,
0,
51,
-20,
5,
-54,
62,
-1,
-23,
36,
-49,
-35,
-39,
12,
11,
28,
38,
-4,
31,
-35,
46,
36,
-14,
18,
21,
15,
-9,
28,
25,
43,
-20,
6,
40,
19,
29,
-19,
27,
7,
-60,
-21,
-11,
-11,
37,
40,
23,
-55,
21,
2,
-2,
55,
-59,
-20,
-25,
-6,
-19,
23,
4,
-30,
44,
-32,
-42,
8,
33,
16,
2,
-34,
17,
-66,
4,
0,
31,
56,
16,
-41,
-46,
13,
5,
-23,
-15,
4,
23,
45,
3,
6,
-15,
-1,
0,
22,
20,
35,
-46,
-19,
-15,
48,
15,
-14,
-30,
13,
8,
23,
6,
28,
0,
30,
-61,
-75,
15,
36,
52,
3,
-9,
27,
-10,
-33,
-19,
-15,
-1,
12,
-47,
21,
1,
-19,
0,
-19,
92,
26,
42,
-55,
-25,
5,
10,
-48,
17,
42,
54,
-47,
8,
-21,
36,
-42,
-16,
35,
45,
-11,
32,
-30,
-30,
23,
-22,
15,
12,
-29,
52,
15,
34,
-20,
-40,
-4,
44,
-51,
71,
3,
-28,
27,
-63,
37,
-21,
34,
16,
5,
-69,
30,
-71,
0,
-23,
-11,
-41,
19,
-24,
-4,
-18,
5,
28,
-66,
36,
-37,
8,
-11,
-9,
-19,
27,
-33,
-30,
75,
23,
5,
-11,
-25,
-14,
-1,
-62,
17,
3,
20,
1,
-38,
-40,
-10,
-45,
-17,
26,
-75,
-35,
13,
-29,
12,
-9,
27,
-26,
6,
-11,
13,
39,
-59,
12,
-5,
-23,
-16,
7,
14,
-1,
35,
28,
19,
36,
67,
-78,
-36,
-24,
-34,
7,
-37,
-46,
13,
3,
19,
-11,
17,
-35,
9,
-5,
3,
16,
4,
-5,
26,
10,
0,
9,
-28,
-33,
38,
27,
-16,
0,
2,
31,
-34,
-44,
-13,
-6,
15,
16,
26,
7,
47,
22,
27,
1,
7,
42,
7,
0,
-46,
41,
10,
18,
-19,
-1,
47,
13,
-32,
38,
-17,
3,
21,
-8,
23,
-21,
54,
-29,
0,
-4,
-12,
50,
-20,
9,
-12,
18,
-2,
18,
7,
22,
26,
-3,
-6,
-19,
13,
-24,
0,
20,
14,
-2,
-48,
-3,
-46,
6,
46,
-32,
86,
-6,
-36,
-4,
20,
-18,
38,
-10,
-9,
0,
36,
4,
-28,
74,
37,
-1,
-51,
4,
-43,
48,
-23,
-29,
-23,
-17,
0,
-17,
7,
-47,
-42,
-51,
12,
-58,
20,
2,
-30,
67,
20,
5,
19,
-35,
75
] |
McDonald, C. J.
This is an appeal by the defendant from a judgment of the circuit court of Bay county in summary proceedings for the possession of land lying between the meander line and the water line of Saginaw Bay.
In July, 1918, the defendant leased from the plaintiff a vacant lot on Donohue Beach for a period of five years. On this lot he built a cottage. He occupied the cottage and paid his rent until March 22, 1923, at which time this court decided the case of Kavanaugh v. Rabior, 222 Mich. 68, in which it was held that riparian owners along the Great Lakes own only to the meander line, and the title to the land beyond that line is held by the State in trust for the public. In December, 1930, Kavanaugh v. Rabior was overruled by Hilt v. Weber, 252 Mich. 198 (71 A. L. R. 1238), in which it was held that the riparian owner owns the land beyond the meander line to the edge of the water. Following the Kavanaugh Case, and until the decision in Hilt v. Weber, a period of about seven years, the defendant, acting under the advice of the State conservation department, paid no rent. The plaintiff notified him by mail that:
“No inore statements will be sent you until after the disputed question of ownership is settled by either the legislature or the Supreme Court, but your account will be carried with interest.”
After the question was settled in Hilt v. Weber, the plaintiff demanded the payment of rent for the preceding seven years. Defendant refused to pay. Summary proceedings were instituted, and in the circuit court judgment was rendered for the plaintiff. The defendant has appealed.
The question to be determined is whether the ■plaintiff is entitled to recover rent for the period during which, according to the decision in the Kavcmcmgh Case, she had no title. The answer depends on whether the overruling decision is given prospective or retrospective effect.
' ‘ ‘ The effect of overruling a decision and refusing to abide by the precedent there laid down is retrospective and makes the law at- the time of the overruled decision as it is declared to be in the last decision, except in so far as the construction last given would impair the obligations of contracts entered into or injuriously affect vested rights acquired in reliance on the earlier decisions. * * * The overruled decision remains the law of the case with respect to the particular case in which it was rendered.” 15 C. J. p. 960, § 358.
See, also, 7 R. C. L. p. 1010, § 36.'
As the principle enunciated in these texts is supported by the great weight of current authority, it is not necessary to indulge in a further discussion of the question.
But the defendant contends that, in reliance on the former decision, he has acquired vested rights by having made permanent improvements on the premises, and, therefore, comes within the exception that prevents the overruling decision from operating retrospectively.
We think the trial court correctly disposed of this contention in the following statement, which we quote from his opinion:
“An examination of the testimony discloses that the major portion of services and betterments were required under the terms of the lease. Equipping the cottage with water and electric lights was a voluntary act on his part. All of the services and improvements were for his own convenience; the cottage, being personal property, may be removed, in which event the installation of electric lights and water would be practically destroyed, but were all originally for his own personal use and comfort, for which there could be no accounting.”
Other questions argued in the briefs and not herein discussed are considered to be without merit.
The judgment is affirmed, with costs to the plaintiff.
Clark, Potter, Sharpe, North, Fead, Wiest, and Btjtzel, JJ., concurred. | [
-29,
36,
-10,
-24,
25,
2,
34,
30,
-14,
23,
-21,
-48,
1,
15,
83,
-27,
-26,
-13,
-16,
52,
37,
-55,
2,
-26,
-3,
10,
15,
-15,
-15,
26,
16,
-16,
-34,
69,
5,
9,
-8,
21,
-5,
29,
13,
-10,
-9,
-37,
28,
16,
28,
-24,
5,
-7,
-10,
19,
-17,
15,
-9,
-5,
-43,
-26,
-11,
41,
-77,
-9,
-11,
22,
19,
66,
15,
23,
4,
-27,
-10,
9,
9,
-9,
3,
63,
33,
16,
29,
10,
0,
31,
-4,
32,
-35,
-36,
-12,
-11,
49,
64,
-48,
1,
-43,
7,
-36,
0,
63,
-49,
15,
17,
-1,
36,
17,
11,
-46,
31,
-22,
-4,
-13,
-65,
-33,
5,
44,
-49,
19,
-22,
-13,
-37,
6,
-33,
1,
43,
37,
-25,
14,
9,
6,
-9,
-18,
49,
-25,
-17,
-42,
16,
61,
58,
-40,
-29,
-20,
-2,
56,
11,
-14,
-26,
14,
-35,
49,
-59,
7,
-1,
-38,
53,
64,
12,
3,
7,
16,
17,
10,
-3,
3,
-15,
2,
-24,
-58,
7,
37,
3,
2,
-7,
21,
2,
-15,
-36,
29,
0,
20,
-21,
8,
5,
-1,
34,
13,
-4,
-54,
-11,
-16,
-12,
-38,
-9,
-26,
-15,
33,
1,
-14,
32,
-33,
26,
-10,
11,
51,
-5,
22,
30,
25,
-20,
2,
10,
-6,
38,
-38,
-35,
-50,
-44,
26,
-14,
-17,
31,
16,
-38,
-13,
-32,
13,
17,
-30,
-1,
6,
7,
60,
-31,
7,
1,
55,
36,
-37,
32,
-29,
-4,
7,
-40,
-8,
18,
-41,
-29,
-13,
-18,
11,
-76,
33,
35,
-17,
-45,
-73,
10,
-17,
64,
-20,
-29,
-6,
-46,
-2,
28,
-64,
-7,
-22,
25,
-22,
29,
-30,
2,
-8,
40,
21,
5,
-55,
-10,
0,
-6,
-24,
29,
30,
-6,
-5,
27,
-27,
47,
0,
55,
-15,
27,
-18,
-2,
-55,
3,
34,
-45,
-49,
-81,
-5,
-16,
-38,
-15,
25,
52,
32,
24,
-8,
68,
43,
-14,
-28,
65,
-24,
32,
-3,
-14,
-13,
-49,
6,
19,
1,
-24,
1,
22,
-33,
43,
33,
-28,
-53,
35,
-5,
24,
-52,
65,
34,
-14,
0,
-7,
-5,
-4,
10,
6,
5,
-11,
-7,
3,
-38,
8,
28,
1,
-36,
48,
-25,
35,
-32,
-14,
-21,
-25,
-49,
8,
2,
21,
-5,
-14,
22,
57,
-35,
0,
14,
32,
9,
35,
21,
16,
0,
6,
-28,
-8,
-54,
18,
19,
-29,
35,
4,
58,
-16,
-18,
4,
-25,
-15,
-31,
-56,
-12,
18,
-45,
21,
7,
37,
-27,
-34,
-27,
-1,
-18,
-8,
-39,
21,
-8,
-50,
0,
-2,
14,
-12,
-13,
-16,
-30,
1,
-2,
9,
35,
35,
11,
21,
0,
-42,
13,
0,
62,
-17,
16,
42,
-54,
28,
31,
-57,
32,
46,
-46,
-51,
-61,
-3,
-2,
75,
22,
-46,
-14,
-10,
-38,
-26,
-47,
-47,
17,
42,
3,
13,
-30,
0,
42,
-23,
34,
40,
-11,
-34,
53,
38,
-36,
-46,
-57,
-1,
12,
3,
-13,
62,
43,
5,
-38,
11,
1,
37,
-30,
25,
42,
-38,
-31,
-43,
-33,
-7,
-29,
-17,
5,
22,
8,
10,
-1,
13,
18,
-34,
-41,
36,
17,
45,
12,
19,
0,
-6,
10,
-22,
-27,
-25,
50,
13,
23,
-54,
19,
52,
-59,
-25,
0,
-15,
66,
-4,
2,
0,
-25,
21,
-15,
-2,
-3,
13,
27,
8,
-21,
17,
-5,
13,
-69,
-12,
-31,
5,
1,
50,
-23,
28,
-16,
13,
-50,
14,
-28,
-78,
-5,
-25,
-15,
-40,
-23,
-25,
-41,
-2,
-57,
-24,
0,
-14,
-3,
26,
28,
-30,
58,
-21,
-40,
20,
-41,
-26,
24,
-4,
15,
-25,
-34,
-5,
-3,
-33,
-23,
62,
-53,
-53,
-38,
-66,
-25,
29,
25,
12,
40,
-2,
-24,
44,
-13,
-42,
-44,
10,
5,
23,
17,
-7,
23,
9,
-57,
13,
4,
26,
21,
-15,
15,
21,
21,
24,
-18,
14,
43,
27,
33,
-15,
45,
17,
27,
27,
-20,
-2,
-26,
-16,
-6,
16,
-13,
25,
21,
-8,
-6,
24,
20,
3,
-23,
7,
-7,
23,
-48,
-34,
-35,
-17,
-7,
14,
16,
-35,
-43,
-32,
-68,
106,
-14,
44,
8,
1,
5,
29,
69,
-24,
76,
28,
-42,
-1,
-11,
-26,
-35,
10,
15,
28,
51,
16,
11,
-16,
23,
8,
44,
23,
42,
69,
8,
0,
10,
-15,
-2,
0,
-13,
-7,
7,
5,
30,
-30,
13,
33,
-3,
11,
-5,
49,
-1,
-5,
-31,
3,
40,
19,
-37,
6,
8,
-34,
33,
-5,
14,
7,
15,
44,
19,
61,
10,
-21,
-8,
27,
-10,
-21,
-13,
-59,
34,
-41,
8,
-19,
-2,
46,
-15,
27,
49,
-30,
7,
24,
-12,
16,
-56,
-17,
-27,
-36,
20,
-29,
-19,
-27,
42,
16,
-1,
-25,
-7,
-15,
-18,
29,
-49,
9,
0,
-2,
-37,
30,
24,
-10,
-26,
15,
33,
-26,
0,
-34,
17,
-4,
0,
-24,
-42,
-47,
9,
2,
19,
56,
19,
-9,
-8,
-53,
-15,
-54,
24,
-43,
6,
-15,
-17,
53,
-39,
-37,
-21,
-41,
-18,
-1,
47,
-24,
10,
-1,
28,
22,
2,
-19,
18,
18,
-37,
-13,
6,
8,
-20,
-11,
-9,
10,
17,
-25,
-21,
76,
21,
4,
-17,
39,
-8,
9,
18,
46,
38,
-14,
-42,
10,
41,
-6,
-27,
31,
41,
-73,
-20,
-4,
33,
-34,
-42,
-38,
28,
-21,
-19,
-21,
7,
10,
-75,
26,
-19,
20,
-10,
44,
2,
15,
-45,
-4,
25,
7,
26,
4,
-22,
67,
12,
21,
16,
15,
-14,
-2,
42,
-11,
5,
9,
-40,
5,
-5,
-49,
-8,
45,
-7,
8,
-27,
-12,
-28,
14,
-2,
7,
-10,
45,
43,
0,
46,
-13,
-34,
33,
27,
-54,
-13,
6,
13,
-21,
-1,
20,
-31,
5,
7,
0,
46,
50,
-70,
17,
-19,
-25,
-11,
-14,
-44,
-46,
31,
19,
14,
20,
-66,
26,
-31,
3,
-44,
8,
-56,
31,
-90,
-5,
-44,
3,
44,
-4,
59,
3,
21,
-11,
-50,
-54,
-11,
18,
-17,
6,
62,
-8,
22,
-10,
-13,
53,
22,
32,
7,
3,
0,
-21,
-40,
-20,
-19,
0,
32,
8,
23,
-34,
21,
7,
8,
25,
-23,
-23,
-24,
-31,
-67,
-2,
7,
49,
56,
-28,
5,
-27,
-34,
4,
6,
11,
3,
-49,
-38,
7,
14,
44,
45,
39,
31,
1,
-5,
-26,
-13,
22,
10,
-9,
-14,
27,
43,
2,
-19,
-31,
5,
6,
-31,
-5,
26,
23,
-8,
28,
4,
31,
10,
21,
78,
-8,
-4,
21
] |
Clark, J.
On December 5. 1928, Henry N. Backus and Ada T. Backus filed separate bills to rescind, for fraud, their sale, in July; 1928, of certain shares of stock in Kirsch Manufacturing Company to Charles W. Kirsch, who was the president, majority stockholder, and dominant personage in the corporation. In May, 1929, such plaintiffs first learned that on or about the years 1921 and 1922, and while plaintiffs owned the shares, Mr. Kirsch had wrongfully appropriated to himself large blocks of stock in the company and sums of money, and which wrongful acts depreciated the value of plaintiffs’ shares.
Plaintiffs attempted to bring into the rescission suits their further complaints in respect of the wrongful acts of 1921, 1922, by way of amendment, seeking relief by bill for accounting in that regard on behalf of themselves and in behalf of other stockholders. The original bills were for rescission. The amendments sought in part at least to introduce a stockholders’ bill. The amendment was refused. Plaintiffs appealed, and the orders of refusal were affirmed on December 8, 1931. 256 Mich. 368, 371. Mr. Kirsch having disposed of the stock, and the corporation being dissolved, plaintiffs had money decrees to compensate for the frauds in the sales of .the shares arising in July, 1928, which decrees were made expressly without prejudice to the plaintiffs for and on account of the grievances of 1921, 1922.
On December 31, 1931, Henry N. Backus and Ada T. Backus filed their bill for accounting and other relief against Charles W. Kirsch, Kirsch Manufacturing Company, and another (perhaps successor) corporation, Kirsch Company, the accounting sought being of the wrongful acts stated of 1921, 1922. Ada T. Backus having died, her suit is prosecuted by her executor. On motion, the bills were dismissed. Plaintiffs have appealed. The causes are here consolidated.
There is no adjudication by the former decision in this court of the question here presented, which is in effect the statute of limitations to be applied as at law in this suit for accounting. We quote from 17 R. C. L. p. 744:
“The statute of limitations is a bar to a bill for an account when it would be a bar to an action of account at common law for the same matter, and for which the party might have had his action of account. ’ ’
And see Hathaway v. Hudson, 256 Mich. 694, where the matter is discussed at length.
This is not a stockholders’ bill, as plaintiffs are not stockholders, having parted with their shares, and the corporation has been dissolved. 3 Cook on Corporations (8th Ed.), p. 2410. The fact that there can be no relief at the instance of stockholders and in behalf of the corporation (Garber v. Town, 208 Mich. 1) does not mean that the wrongs done plaintiffs are without remedy.
If, as plaintiffs allege, they parted with their shares to defendant Kirsch in ignorance of the said impairment of corporate assets and the said depreciation of the value of the shares, and that these matters were concealed from them and that they asserted their demand for their portions of the abstractions and depreciations, they should have relief, unless the cause of action is barred by the statute of limitations. In Rafferty v. Donnelly, 197 Pa. 423 (47 Atl. 202), it is said:
“His allegation is that he parted with it in ignorance of the appellees’ impairment of the assets of the company, as they had concealed their conduct from him, and that after he had sold his stock, upon discovery of what they had done, he demanded ‘that they should make good to him his proportionate share of the moneys fraudulently abstracted by them as aforesaid, from the treasury of said company.’ The appellees deny that they had concealed their conduct from him, and aver he knew that they had voted themselves the increase of salaries shortly after they had done so. If the appellant did not part with his stock in ignorance of the conduct of the appellees, of which he complains, and sold it, knowing what they had done, his bill was properly dismissed. At no time did any of the moneys of the McClure Coke Company belong to him, and even if the appellees had improperly taken it from the treasury, the appellant, though a stockholder, could not have sued for the recovery of what he might have considered was his proportionate share of the sum so taken. He might have instituted, or compelled the institution of, proper proceedings for its return to the treasury, where it would again have become an asset of the company and preserved the real value of his stock, but this was all he could do. He could simply have compelled restoration of the value to his stock which had been taken from it by the officers’ improper appropriation of the company’s money. In the present proceeding, as an individual, he seeks redress from the appellees, as individuals, for an-alleged wrong resulting to him from their misconduct. If they did directly wrong him in his estate by fraudulently impairing its value, and, by their concealment of their misconduct, he parted with his property for less than it was really worth, he would, upon proper averments and proofs, be entitled to relief.”
See, also, Ritchie v. McMullen, 25 C. C. A. 50 (79 Fed. 522) (opinion by Taft, J.); Mitchell v. Beachy, 110 Kan. 60 (202 Pac. 628); Pontiac Packing Co. v. Hancock, 257 Mich. 45.
Plaintiffs filed bills for relief in respect of these wrongful acts by way of amendment and. supplement to bills in the former cases (256 Mich. 368, 371), but were mistaken in their remedy. Such bills were filed in time, 3 Comp. Laws 1929, § 13983, providing limitation of two years, after discovery, when cause of action has been fraudulently concealed.
Within a year after the affirmance in this court of the order denying leave to amend, the instant bills were filed. They too were in time under 3 Comp. Laws 1929', § 13982, which provides:
< “If, in any action, duly commenced within the time limited in this chapter, and allowed therefor, the writ or declaration shall fail of a sufficient serv ice or return, by any unavoidable accident, or by any default or neglect of tbe officer to whom it is committed, or if tbe writ be abated or tbe action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if after a verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after the reversal of the judgment therein; and if the cause of action does by law survive, his executor or administrator may, in case of his death, commence such new action within the said one year.”
Plaintiffs ’ attempted action by way of amendment and supplement of former bills was defeated for matter of form and is within the statute granting an additional year. See Pattridge v. Lott, 15 Mich. 251. As the relief sought here is merely accounting for fraudulent transactions, a money decree, it is sufficient that the suit be brought within the period fixed by the statute of limitations. Alfred J. Brown Seed Co. v. Brown, 240 Mich. 569; Barnhardt v. Hamel, 207 Mich. 232.
It should be noted that facts here reviewed are under the rule that, on motion to dismiss, facts well stated are accepted as true.
It follows that order of dismissal is reversed, with costs, and cause remanded with leave to answer within rule time.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
7,
6,
62,
-8,
7,
30,
-6,
-46,
-12,
43,
-34,
18,
-1,
-19,
9,
27,
14,
35,
7,
-3,
25,
-37,
-44,
-5,
9,
-13,
8,
-23,
-10,
26,
-15,
-53,
21,
-54,
-41,
8,
0,
27,
9,
-7,
-28,
-6,
23,
4,
0,
26,
-30,
1,
1,
10,
49,
-27,
-1,
-18,
33,
4,
0,
2,
2,
-28,
-20,
0,
83,
-37,
65,
6,
4,
37,
12,
2,
-16,
-23,
-22,
-46,
13,
-40,
43,
34,
-46,
-41,
-32,
-24,
28,
-28,
-39,
-8,
-5,
12,
5,
9,
35,
-10,
-44,
6,
45,
-9,
4,
-4,
-41,
-14,
51,
-56,
-46,
16,
-3,
29,
17,
8,
17,
6,
-15,
24,
17,
11,
-7,
-23,
-21,
-20,
-10,
3,
45,
69,
-1,
92,
-24,
121,
-31,
36,
-42,
57,
-15,
-40,
-33,
0,
17,
2,
-37,
-13,
-5,
-37,
-15,
25,
-45,
-32,
-33,
58,
-10,
49,
12,
-50,
-26,
35,
40,
-10,
0,
-3,
37,
-14,
32,
-27,
5,
-5,
2,
-43,
-2,
5,
23,
-6,
0,
-12,
-5,
-6,
-54,
-30,
-48,
58,
20,
-45,
-36,
20,
-18,
48,
38,
-9,
-12,
-64,
42,
-13,
26,
1,
-16,
-1,
53,
33,
-33,
-48,
-3,
35,
67,
33,
24,
-19,
-23,
-14,
1,
4,
-8,
47,
-43,
20,
-37,
21,
22,
-24,
-31,
-42,
-39,
-46,
5,
-4,
21,
-62,
1,
36,
-31,
9,
29,
0,
43,
-7,
-55,
-15,
10,
-6,
-46,
-3,
13,
-16,
35,
0,
-19,
7,
-11,
-30,
-10,
8,
-28,
-10,
16,
25,
-27,
1,
-15,
44,
22,
20,
-29,
-9,
24,
-5,
7,
14,
7,
17,
13,
-17,
18,
21,
-5,
-23,
-20,
-17,
53,
-4,
0,
-38,
12,
-10,
51,
-14,
11,
-34,
13,
0,
-28,
13,
-22,
-3,
-9,
1,
50,
66,
5,
7,
51,
43,
-60,
-31,
7,
0,
-58,
-9,
-10,
-26,
42,
-1,
-52,
-23,
6,
-6,
-30,
34,
24,
-35,
48,
-22,
-1,
56,
18,
-51,
-6,
-13,
-13,
31,
0,
0,
11,
-19,
-3,
5,
-19,
43,
0,
-12,
-26,
-54,
50,
-1,
-10,
12,
11,
55,
14,
-24,
-64,
-10,
-21,
-37,
25,
43,
-29,
-16,
-1,
28,
13,
40,
8,
16,
-31,
38,
8,
13,
8,
3,
28,
32,
-37,
-6,
14,
18,
-47,
59,
-29,
-15,
11,
-19,
-40,
9,
-3,
-6,
-9,
-15,
7,
12,
-8,
41,
-10,
-37,
-59,
6,
8,
21,
5,
42,
-26,
-29,
-44,
-14,
-69,
53,
-63,
23,
28,
-14,
-14,
-45,
15,
47,
-3,
17,
44,
-26,
52,
12,
-58,
-44,
31,
-22,
46,
-1,
74,
-14,
-14,
-23,
-6,
-80,
55,
35,
30,
-17,
-17,
53,
-13,
-66,
-1,
-15,
-23,
46,
51,
-24,
19,
11,
-14,
43,
-3,
6,
-19,
30,
66,
-3,
27,
3,
12,
-14,
13,
1,
1,
-60,
37,
-25,
53,
-42,
9,
14,
6,
-3,
19,
-6,
24,
63,
-5,
-14,
-11,
6,
-27,
-16,
21,
-10,
-15,
-45,
-1,
27,
-10,
-22,
-48,
45,
-20,
28,
15,
13,
26,
29,
9,
29,
-8,
21,
-55,
-23,
-28,
24,
-12,
-20,
12,
0,
33,
-3,
-47,
-59,
-17,
59,
-34,
-32,
24,
41,
13,
3,
15,
25,
-16,
34,
49,
37,
-41,
48,
-97,
-46,
53,
-3,
42,
4,
9,
-21,
-12,
-43,
-15,
37,
3,
-25,
-50,
-40,
-36,
11,
-6,
-2,
9,
-26,
3,
3,
-22,
-14,
4,
-14,
-9,
53,
8,
-62,
1,
-32,
2,
10,
-23,
3,
-10,
-28,
32,
-3,
-55,
-48,
8,
66,
5,
29,
34,
31,
27,
32,
-8,
35,
-1,
18,
-22,
19,
39,
-73,
-19,
18,
25,
26,
11,
7,
-6,
-43,
-12,
-12,
44,
-24,
36,
-27,
28,
47,
2,
-25,
-36,
-49,
-36,
-3,
-3,
67,
48,
-7,
17,
-42,
-56,
0,
26,
-20,
-9,
-4,
7,
-34,
22,
8,
-46,
23,
39,
21,
-4,
37,
-6,
29,
21,
-38,
-47,
22,
-29,
4,
-4,
-14,
-18,
22,
-17,
-16,
6,
10,
-25,
-55,
-7,
31,
6,
-12,
-28,
7,
21,
4,
-85,
-5,
46,
-10,
16,
-14,
8,
16,
-13,
-42,
33,
-2,
36,
11,
18,
20,
-23,
-6,
43,
10,
21,
20,
-44,
12,
-25,
12,
-32,
6,
8,
28,
15,
-21,
78,
9,
-12,
-8,
-3,
-32,
-30,
-10,
-43,
66,
17,
15,
10,
-56,
-62,
-4,
-52,
72,
-17,
-6,
-13,
45,
4,
-17,
9,
-67,
15,
-93,
10,
32,
35,
19,
-1,
-37,
-24,
-6,
5,
1,
1,
39,
15,
-27,
-7,
-2,
1,
19,
-42,
-25,
-35,
55,
-3,
-29,
-14,
-1,
11,
-2,
-16,
15,
-38,
13,
1,
44,
45,
24,
15,
-7,
42,
40,
35,
-36,
-35,
-27,
-67,
-27,
-29,
30,
-71,
-34,
-21,
92,
-24,
-38,
10,
-55,
-59,
6,
-21,
-9,
56,
33,
13,
12,
46,
29,
6,
-46,
-27,
-21,
28,
-53,
65,
4,
38,
-15,
-28,
-60,
11,
-2,
-29,
58,
-7,
-15,
0,
-3,
14,
-1,
-48,
2,
33,
-31,
9,
-13,
-20,
0,
-52,
-32,
4,
-32,
-21,
6,
13,
-7,
-49,
14,
-49,
-18,
-22,
-4,
5,
-45,
-40,
47,
-36,
11,
-6,
-35,
-51,
1,
41,
19,
30,
0,
5,
-64,
-65,
21,
-25,
35,
47,
21,
4,
1,
-15,
4,
-19,
-36,
-25,
2,
-41,
-16,
26,
-18,
13,
66,
13,
-24,
6,
-61,
10,
-71,
-23,
11,
16,
-4,
-2,
7,
6,
-5,
-20,
32,
24,
-27,
-1,
5,
-11,
20,
1,
26,
38,
21,
35,
12,
2,
33,
-38,
9,
49,
8,
24,
-42,
14,
-15,
1,
41,
-20,
2,
33,
15,
9,
31,
23,
-6,
-23,
7,
61,
-2,
-32,
-15,
-29,
-3,
53,
-2,
13,
26,
13,
-26,
-20,
-38,
-19,
19,
63,
33,
-6,
44,
29,
18,
-24,
17,
16,
-38,
-72,
-43,
14,
-13,
-33,
17,
40,
21,
-36,
-21,
22,
42,
-22,
-5,
10,
-19,
0,
-4,
-11,
-49,
23,
11,
-17,
68,
39,
-29,
-11,
53,
23,
-18,
-7,
1,
14,
-40,
-14,
-9,
-25,
21,
-57,
41,
-34,
-17,
-19,
45,
41,
12,
-9,
30,
6,
-17,
-18,
59,
-16,
1,
47,
32,
26,
-10,
-21,
-30,
-17,
19,
5,
-13,
13,
-69,
51,
-16,
-22,
0,
23,
1,
19,
1,
-27,
-34,
18,
11,
-11,
4,
-11,
42,
-30,
-13,
31,
42,
-15,
8
] |
North, J.
This is a mandamus proceeding by which plaintiff seeks to compel payment of drain bonds from general funds of Washtenaw county, relying particularly upon that portion of. 1 Comp. Laws 1929, § 4937, which reads:
“In case the amount available in the drain fund shall be insufficient to pay the principal or interest of any such bonds heretofore or hereafter issued when they become due the same' shall be advanced and paid by the county out of its general funds and reimbursement to said general fund shall be made out of the drain taxes thereafter collected.”
After hearing in the circuit court, the writ of mandamus issued against the defendant county officials. Leave having first been obtained, they have appealed.
Incident to the construction of the Darlington subdivision drain in Washtenaw county, bonds aggregating $31,500 were issued March 1,1927. Provision for issuing such bonds is contained in Act No. 316, Pub. Acts 1923, as amended by Act No. 365, Pub. Acts 1925. These statutory provisions are now embodied in the “Drain Code,” 1 Comp. Laws 1929, § 4838 et seq. Plaintiff purchased 20 of these drain bonds, each in the amount of $1,000. Two of the bonds having matured April 1,1932, were presented for payment, which was refused. Also plaintiff was refused payment of accrued interest due April 1, 1932. There was practically no money in the Darlington subdivision drain fund. This condition seems to have resulted largely, if not wholly, from delinquency in payment of assessments incident to the construction of this drain. From taxes collected the county treasurer had on hand approximately $25,000, which, when properly entered on his books, constituted a part of the county’s general fund. But the record sustains defendants’ claim that, notwithstanding such money in the general fund, there would be a deficit in this fund resulting from the ordinary operating expenses of the county at the end of the current fiscal year. The board of supervisors did not authorize a transfer of any money from the general fund to the Darlington subdivision drain fund, and no appropriation was made to cover any deficiency in such drainage fund. Notwithstanding the facts above recited, plaintiff asserts its right to have payment made to it from the county’s general fund.
Defendants have challenged the constitutionality of the act under which plaintiff asserts right of payment. In part unconstitutionality is asserted on the ground that the title to the drain code is not sufficient to cover the amendments embodied therein, which provide for issuing drainage bonds and contingent payment thereof from the county’s general funds. Prior to the 1929 amendment the title read:
“An act to codify and add to the laws relating to the laying out of drainage districts, the construction and maintenance of drains, the assessment and collection of taxes therefor; to prescribe penalties for violations of certain provisions of this act; and to repeal certain acts relating to drains.”
While, as pointed out by appellants, the title does not refer to the issuing of drain bonds, nonetheless we think that provision therefor in a drain law is clearly and necessarily germane to the general provisions of the act having to do with “the construe tion and maintenance of drains, the assessment and collection of taxes therefor. ’ ’ In 1917 the State Constitution was amended (article 8, § 15a), and express provision embodied therein for issuance of bonds for drainage purposes by drainage districts. In 1923 the legislature codified the drain law of this State and therein provided the manner and conditions for the issuing of drainage district bonds. Act No. 316, Pub. Acts 1923. The title adopted in 1923 remained unchanged and as above quoted until 1929. See Act No. 318, Pub. Acts 1929. Being a codification, the statute necessarily embodied various and somewhat diversified provisions of the drain law. But as against objections here raised, we do not find that the act violates article 5, § 21, of the Constitution, in that it embraces more than one object or because the title is deficient in that it is not sufficiently broad to cover the provisions of the act. Title to a codification statute can scarcely be expected to embody reference to every detail of the act. Such is not the constitutional requirement. If the title fairly apprises legislators and the public generally of the purposes of the act as a whole, such title is sufficient. Vernor v. Secretary of State, 179 Mich. 157 (Ann. Cas. 1915 D, 128). If the title is adequate, and the statute contains only that which is germane to its general purposes, it does not offend article 5, § 21, of the State Constitution which provides: “No law shall embrace more than one object, which shall be expressed in its title. ’ ’ The title specifically refers to the “construction” of drains. Construction necessarily involves provision for payment of cost; and issuing bonds is a commonplace method (possibly too commonplace) for financing the cost of public improvements. Provision for issuing bonds is only incidental to the main general purpose of the drainage act, and reference in the title to such provision is not necessary.
“The requirements of the Constitution, article 5, § 21, that no law shall embrace more than one object, which shall be expressed in its title, are met if an act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if the provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose.” Loomis v. Rogers (syllabus), 197 Mich. 265.
See, also, People v. Stimer, 248 Mich. 272 (67 A. L. R. 552).
Substantially the same may be said of the portion of statute embodied in Act No. 331, Pub. Acts 1927 (above quoted [see 1 Comp. Laws 1929, §4937]), wherein it is provided in case bonds mature or interest is payable and the drain fund is insufficient to meet the obligation “the same shall be advanced and paid by the county out of its general funds and reimbursement to said general fund shall be made out of the drain taxes thereafter collected. ’ ’ Clearly this provision has to do with the marketability of drain bonds. It has an important bearing upon the matter of obtaining funds with which to pay for construction, and is germane to the main purpose of the act. This provision of the drain code is not materially unlike another and earlier provision in the drain law (Comp. Laws Supp. 1922, § 4922 [Act No. 64, Pub. Acts 1921]), which reads:
“Provided, further, That the holder of such (drain) order may, if he so desires, have the right to require payment thereof out of any moneys in the general fund of the county treasury that may be available, if the drain fund is insufficient for such purpose because of delinquency in the payment of drain taxes.”
As against the objection now under consideration, the title was held to cover the above-quoted amendment to the drain law. Moore v. Harrison, 224 Mich. 512. The title is sufficient as against the objections here urged. See Vernor v. Secretary of State, supra.
The amendment to the act wherein provision is made for payment from general county funds (Act No. 331, Pub. Acts 1927) became effective subsequent to plaintiff’s purchase of the bonds involved in this case. Appellants urge that this amendment is not effective as to these bonds except it be construed as an ex post facto law and therefore unconstitutional. We think this contention is without merit and is fully answered in Moore v. Harrison, supra. Appellants’ position is not tenable.
Defendants’ answer denies the authority of the drain commissioner to issue the bonds; denies the duty or obligation to pay the bonds presented on the grounds of lack of money in the Darlington subdivision drain fund; asserts that the county has no right to levy a tax upon the county at large for the purpose of paying these drain bonds; and asserts that the condition of the general fund is such that the payment of the drain bonds would impair operation of necessary county governmental functions; and that, under the circumstances, there is no legal obligation upon the county as such to pay the bonds of the drainage district, the supervisors not having authorized a transfer of money from the general fund to the drainage district fund.
The statutory provision expressly authorizes and empowers the drain commissioner to issue drainage bonds. Appellants’ contention that since a county is not authorized to construct a drain “at the expense of the county,” it follows that a drain commissioner acting for and in behalf of a drain district in issuing bonds cannot obligate the county for the payment of the bonds, cannot be sustained. • The county does not pay or become obligated to pay these bonds except in the event that the drain fund is inadequate to meet the obligation of matured bonds or accrued interest; and in that event the statute provides only that the same shall be advanced and paid by the county out of its general fund and reimbursement to said general fund shall be made out of the drain taxes thereafter collected. Regardless of the temporary advancement by the county, in the end payment is by the drainage district. If the first assessments are inadequate, there is express statutory provision for an additional assessment upon the drainage district. 1 Comp. Laws 1929, § 4940. In passing upon the earlier provision of the drain law relative to drain orders being paid from the county’s general fund, this court said, as might well be here said:
“There was no purpose to impose a tax on the county at large to aid in the construction of a particular drain. Under the proceedings taken, the lands specially assessed would be benefited to the amount of the assessment. There was no presumption that they would be abandoned by the owners by reason thereof. The intent as evidenced by the language of the act, considered in the light of its other provisions, was simply to require the county to advance out of its general fund sufficient sums to retire any orders then unpaid, reimbursing itself when the lands delinquent were either redeemed or sold. The legislature had already imposed certain expenses on the county, presumably in its interest, and for which it would receive benefit. In imposing this additional burden, we do not think it exceeded its power.” Moore v. Harrison, supra, 517.
On this phase of the case appellants, to some extent, rely upon the decision in Spiegel v. Barrett, 189 Mich. 111. Obviously the cited case is not at all applicable, because at that time there was no statutory provisions for paying the amount due on drain orders or drain bonds from the general county fund.
There still remains to be considered appellants’ contention that because there was not sufficient money in the general county fund to cover the expenses of the county’s governmental activities for the current year, refusal to pay these drain bonds from such general fund was justified. The opinion of the trial judge disposes of this phase of the case in the following language:
‘ ‘ Can the issuance of bonds by the drainage commissioner on behalf of the drainage district impair or jeopardize the necessary functions of government?
“In this connection our attention has been directed to the case of Bay City Dredge Works v. Fox, 245 Mich. 523. This latter case was mandamus to compel the county clerk and county treasurer to pay certain drain orders. Plaintiff there held certain drain orders and the drain fund being deficient demanded a payment out' of moneys in the general fund in the county treasury, basing right thereto under Act No. 316, Pub. Acts 1923, as amended by Act No. 365, Pub. Acts 1925, and reading as follows:
“ ‘The holder of such order may, if he so desires, have the right to require payment thereof out of any moneys in the general fund of the county treasury that may be available. ’
‘ ‘ The opinion was by a divided court, but the controlling opinion written by Mr. Justice Wiest held that the statute placed a limitation upon the right to have payment and contemplated that there might be moneys in the treasury not to be used for the payment of drainage orders, for it confines payment out of funds usable for such purposes.
“It was held that the term ‘available’ is employed in the statute in the sense of ‘usable,’ and that the statute did not grant plaintiff right to recourse to any and all moneys in the treasury, but limits resort to such only as are available for the payment of drain orders. Further, that the moneys in the treasury raised by taxation to meet ordinary current county expenses and needed for such purpose are set apart to such use and are not usable to pay drain orders.
“The Bay City Dredge Case, in my opinion, merely interpreted the statute there in question and with particular reference to the language therein contained. I am of the opinion that such reasoning was not intended to control the present situation. Here that portion of the statute under discussion is mandatory. It expresses the clear legislative intent that when the amount available in the drain fund shall be insufficient to pay the principal or interest of any drainage bonds heretofore or hereafter issued when they become due, the same shall be advanced and paid by the county out of its general funds.
“The statute does not include,the word ‘available,’ which under Justice Wiest’s opinion would be regarded as usable for the purpose. It simply states that bondholders shall be paid out of the general fund and that reimbursement shall be made. The wording does not indicate that the legislature intended that the probability or possibility of reimbursement should be determined prior to" any pay ment for the purposes mentioned out of the general fund. * * •
“It is my further opinion that, under the case of Moore v. Harrison, 224 Mich. 512, and the later case of Township of Waterford v. Willson, 257 Mich. 619, that the question of the depletion of the county funds does not enter into the discussion, in view of the statute, which is here upheld, and which provides for no exceptions or limitations upon the use of funds to all practical intents and purposes included in the general fund for the purpose stated.”
Both on the date of instituting suit and on the date of hearing, there was in the Washtenaw county general fund money greatly in excess of the amount of the payment sought by plaintiff. Mandamus was the proper remedy, because plaintiff is clearly entitled to payment, and likewise the duty of respondents as public officers to make such payment out of moneys in the county’s general fund is clearly and specifically imposed by statute. The record presents a clear legal duty on the part of the defendants and a clear legal right on the part of the plaintiff to have such duty performed. Taylor v. Isabella Circuit Judge, 209 Mich. 97; Miller v. City of Detroit, 250 Mich. 633.
The judgment is affirmed, with costs to appellee.
McDonald, C. J., and Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
-18,
57,
31,
-11,
-26,
26,
23,
-30,
-25,
48,
-21,
-32,
37,
4,
-25,
-17,
36,
-38,
-6,
26,
-2,
-27,
6,
18,
-9,
51,
23,
-25,
-13,
-60,
-27,
-33,
-26,
26,
-15,
14,
11,
-13,
38,
-44,
-34,
-26,
-3,
0,
-1,
5,
-3,
0,
-4,
-17,
-32,
1,
-16,
-15,
-27,
13,
23,
-54,
-27,
-3,
-17,
8,
7,
32,
-8,
0,
-60,
20,
38,
-11,
11,
18,
-1,
-32,
22,
11,
-10,
7,
-27,
1,
-19,
0,
-11,
14,
-35,
-5,
-49,
39,
34,
28,
-10,
2,
-38,
55,
12,
4,
-29,
-6,
-13,
-18,
-47,
12,
-8,
25,
39,
-2,
23,
-56,
-16,
-9,
34,
-35,
33,
-26,
-32,
-63,
-29,
-44,
9,
0,
31,
11,
12,
30,
-28,
34,
15,
-7,
-26,
-21,
1,
41,
-6,
21,
-3,
19,
6,
7,
12,
26,
3,
19,
-9,
-4,
45,
16,
59,
-16,
34,
7,
-55,
1,
48,
23,
7,
0,
13,
-23,
0,
21,
38,
36,
0,
-37,
-44,
-7,
2,
30,
-1,
12,
12,
46,
-1,
-53,
23,
7,
15,
-18,
26,
-22,
9,
-32,
12,
27,
-36,
-11,
23,
-51,
-4,
-1,
21,
-16,
-13,
-25,
-21,
41,
18,
17,
16,
5,
13,
-42,
42,
-17,
-21,
-17,
41,
-16,
-28,
29,
7,
-1,
8,
31,
-17,
7,
4,
-8,
-1,
-26,
18,
33,
8,
17,
-13,
43,
45,
-36,
3,
6,
23,
-33,
12,
16,
-10,
-18,
25,
24,
25,
46,
-95,
-16,
-18,
20,
14,
-40,
-32,
-38,
-21,
0,
-58,
-28,
-42,
20,
9,
-6,
10,
-26,
-39,
12,
37,
35,
-32,
7,
-40,
-8,
-25,
-12,
-10,
-36,
-30,
39,
46,
-54,
-3,
-24,
-17,
27,
-21,
23,
-30,
-71,
-26,
31,
14,
23,
-59,
6,
-30,
20,
3,
-10,
-22,
-8,
50,
42,
9,
-50,
61,
34,
-67,
-42,
7,
-14,
42,
-37,
-26,
-7,
-34,
32,
39,
-7,
-21,
17,
29,
32,
18,
-8,
3,
27,
5,
-9,
-35,
-37,
9,
26,
10,
10,
-24,
-14,
-61,
-10,
12,
0,
30,
7,
0,
-57,
1,
-25,
39,
16,
20,
9,
-9,
-26,
-12,
-31,
-40,
-41,
-37,
-4,
-9,
38,
-24,
-40,
-27,
28,
-20,
59,
28,
26,
-34,
-75,
-14,
-27,
-2,
0,
23,
17,
39,
1,
-29,
21,
-12,
40,
-40,
-6,
-10,
-2,
-8,
-45,
5,
35,
17,
8,
31,
-42,
-59,
34,
18,
-17,
1,
16,
-3,
-17,
6,
-4,
-52,
5,
-31,
22,
3,
26,
30,
53,
43,
20,
42,
27,
18,
-21,
8,
17,
-5,
16,
75,
-3,
59,
-38,
26,
7,
23,
-45,
48,
-45,
35,
24,
8,
14,
-5,
30,
46,
8,
14,
13,
-49,
9,
-61,
4,
3,
33,
38,
4,
-18,
-46,
35,
13,
41,
14,
-13,
5,
-14,
-8,
-5,
0,
-6,
-19,
30,
-18,
-43,
-14,
-20,
3,
6,
3,
-21,
30,
35,
-9,
-42,
41,
5,
-7,
-16,
-12,
66,
-50,
27,
-14,
29,
3,
-54,
-32,
1,
-3,
-7,
-36,
-25,
36,
9,
-25,
-44,
8,
71,
74,
-8,
-17,
33,
23,
15,
35,
-14,
-20,
-22,
6,
14,
-6,
-37,
3,
-32,
0,
26,
17,
-29,
13,
6,
-4,
19,
13,
8,
-1,
-37,
-20,
17,
53,
-23,
-3,
3,
51,
15,
-36,
-13,
-26,
-35,
-33,
-34,
26,
-95,
-34,
26,
27,
25,
35,
-34,
-11,
-16,
-12,
-35,
-35,
-49,
-20,
-26,
31,
-14,
12,
-10,
-37,
-11,
-7,
-19,
-21,
23,
-41,
20,
-5,
21,
1,
-1,
-48,
21,
17,
9,
-23,
37,
11,
-33,
-43,
3,
62,
11,
-26,
-14,
-18,
7,
26,
-3,
1,
3,
7,
6,
0,
-23,
-12,
-5,
-16,
2,
42,
6,
-6,
15,
-1,
31,
0,
28,
-21,
-23,
14,
12,
-27,
23,
3,
40,
15,
16,
13,
-20,
-68,
-19,
-55,
28,
4,
10,
26,
9,
-3,
3,
21,
-51,
20,
-17,
-2,
-6,
-6,
25,
32,
-32,
30,
18,
44,
-48,
-10,
-25,
-17,
50,
-44,
0,
-38,
0,
-18,
9,
32,
37,
-1,
20,
14,
-14,
-6,
50,
-47,
59,
0,
-46,
36,
7,
39,
41,
41,
26,
7,
33,
-19,
3,
-30,
14,
-47,
-38,
11,
15,
-7,
10,
-28,
-23,
-18,
-12,
-21,
49,
24,
-15,
-4,
34,
8,
-46,
7,
23,
-18,
-4,
35,
6,
45,
21,
13,
-18,
16,
-26,
-10,
-15,
16,
-18,
2,
-46,
-18,
-12,
20,
20,
10,
42,
-4,
-16,
-4,
-18,
-90,
-55,
17,
14,
-37,
-14,
-21,
-46,
27,
-24,
-8,
10,
-3,
6,
57,
-35,
36,
-24,
-5,
31,
0,
-22,
1,
-40,
-20,
-7,
12,
-29,
22,
-11,
6,
-24,
31,
-55,
2,
-6,
-5,
-7,
11,
-15,
-12,
37,
58,
13,
22,
-35,
-13,
24,
-1,
-3,
-7,
-20,
-61,
45,
-14,
-53,
-13,
9,
-15,
29,
-43,
0,
-5,
1,
-32,
15,
-26,
13,
20,
-37,
-85,
6,
-33,
-5,
53,
71,
-6,
-12,
10,
43,
64,
12,
34,
-5,
13,
-45,
-19,
-35,
20,
-5,
-18,
18,
-21,
33,
56,
-56,
54,
-38,
-28,
10,
63,
2,
7,
-27,
21,
23,
15,
-31,
34,
21,
18,
33,
10,
6,
-32,
59,
-27,
-23,
-27,
-12,
-65,
-16,
12,
-65,
23,
-3,
38,
10,
22,
-14,
-16,
-28,
-28,
2,
42,
-1,
8,
-14,
-22,
14,
43,
1,
9,
-1,
-5,
-24,
-33,
-14,
14,
-14,
-11,
-58,
25,
-9,
9,
6,
3,
-1,
-10,
-47,
50,
30,
-28,
-20,
-11,
-2,
36,
31,
58,
-17,
17,
-61,
-14,
18,
-24,
-6,
-39,
-23,
-43,
30,
-45,
15,
-12,
-8,
-9,
0,
17,
-47,
73,
-26,
1,
-23,
-11,
-83,
-68,
17,
-35,
18,
19,
48,
3,
-52,
15,
-45,
11,
-2,
15,
-34,
15,
-38,
-56,
-15,
36,
7,
-31,
56,
-65,
63,
19,
-1,
-34,
-32,
-10,
32,
30,
13,
-22,
-20,
-12,
-14,
-8,
13,
36,
3,
-24,
-6,
-8,
10,
15,
19,
-1,
17,
-6,
11,
-3,
16,
37,
-3,
25,
-24,
4,
-50,
-18,
10,
-6,
12,
7,
55,
-43,
39,
8,
-6,
35,
-24,
-3,
77,
-20,
-5,
7,
77,
59,
48,
-23,
4,
-1,
-17,
1,
-31,
-9,
50,
13,
38,
-4,
58,
-24,
30,
53,
40,
28,
-26,
26,
9,
21,
-4,
32,
-33,
-31,
16,
2,
38,
-30,
-31,
16
] |
Weadock, J.
The appellants, residents and restaurant proprietors in the city of Ann Arbor, applied to the council for approval of a license to them to sell wine and/or beer within the district south and east of the following line: “Beginning on Fuller street at the city limits of said city, and running thence westerly along Fuller street to Detroit street, thence southwesterly along Detroit street to Division street; thence south on Division street and Division street as extended south to the city limits south of said city of Ann Arbor.” Section 88 of the charter of Ann Arbor, subd. 3, provides that “no person shall keep a saloon or other place except a drug store, where any spirituous, malt, fermented, vinous, or intoxicating liquors are sold, or kept for sale” within the prescribed territory. The University of Michigan is the most important feature of the city of Ann Arbor and is within this portion of that city.
Under home rule principles and pursuant to the charter of the city by Act No. 543, Local Acts 1903, the authorities of Ann Arbor protected the many students of that great institution from dangerous surrounding’s and should, continue to do so. The law in question has not been repealed either directly or by implication, and the council obeyed a plain duty in denying petitioner’s application and the answer of the respondent is a complete and legal answer to the petition. Act No. 64, Pnb. Acts 1933, expressly provides in section 4:
“No snch license (to sell beer, etc.) shall be issued unless approved by the legislative body of the city * * * where the place of business of such vendor is located.”
There has been no action in this matter by the liquor control commission, and it could not issue a license without the approval of the council, and even then the home-rule provisions of the charter would control.
The denial of the petition for mandamus is affirmed, with costs to respondent.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-8,
-1,
52,
-54,
-7,
25,
5,
66,
-53,
64,
-4,
-41,
46,
-31,
63,
23,
45,
10,
-57,
-2,
11,
2,
-27,
20,
-30,
-16,
40,
-15,
-18,
-28,
-1,
-7,
-6,
11,
44,
13,
18,
0,
72,
-13,
-36,
16,
8,
33,
24,
-14,
6,
-52,
23,
2,
-42,
-7,
-39,
28,
-17,
-29,
-33,
3,
-1,
70,
29,
43,
8,
21,
6,
-9,
5,
15,
8,
-14,
-11,
-3,
-49,
-23,
-4,
38,
44,
23,
-19,
13,
-8,
19,
49,
-16,
-3,
44,
-3,
35,
-13,
-57,
10,
-50,
-14,
-5,
-4,
-1,
-72,
-6,
39,
-47,
20,
-8,
-33,
14,
-3,
4,
-12,
26,
10,
-66,
20,
-40,
32,
-38,
18,
-30,
-4,
25,
-40,
36,
56,
1,
40,
-2,
-6,
9,
-34,
-7,
-68,
-25,
16,
-18,
-7,
24,
-7,
46,
6,
58,
16,
2,
24,
69,
22,
-11,
-8,
-37,
-15,
47,
-19,
-51,
-27,
-9,
0,
-5,
-93,
59,
74,
20,
35,
-16,
-36,
-11,
-19,
-6,
-15,
-21,
-2,
-17,
-12,
13,
5,
-30,
30,
19,
59,
-64,
13,
31,
-29,
-27,
-18,
22,
11,
-31,
36,
8,
-19,
-82,
20,
-30,
-21,
-32,
-9,
-19,
15,
33,
-7,
45,
12,
-4,
-40,
15,
-21,
11,
41,
-19,
-15,
40,
-27,
17,
-19,
-14,
-26,
-1,
91,
-38,
-40,
-26,
40,
-31,
16,
-24,
8,
22,
-7,
-18,
-22,
-21,
-55,
-32,
16,
-32,
33,
40,
57,
-41,
2,
27,
17,
28,
-7,
33,
-67,
-20,
-47,
7,
-7,
-22,
56,
11,
53,
-20,
2,
-28,
-59,
15,
-15,
5,
-15,
20,
13,
20,
31,
37,
-58,
16,
35,
10,
-1,
31,
-38,
8,
3,
-4,
-40,
-30,
-11,
-25,
6,
17,
11,
-6,
6,
49,
18,
47,
-22,
37,
-30,
14,
7,
18,
-62,
10,
-6,
-3,
-40,
28,
12,
21,
-9,
48,
-1,
59,
-24,
-46,
-51,
-13,
45,
-57,
-5,
-38,
-72,
15,
30,
-26,
58,
27,
16,
-35,
15,
-25,
-2,
18,
-31,
-40,
44,
7,
-3,
-28,
2,
-5,
-13,
26,
-37,
5,
33,
-69,
-15,
0,
44,
-34,
45,
58,
3,
-13,
-44,
-27,
18,
-56,
-48,
14,
-17,
14,
18,
9,
-24,
20,
-33,
13,
-22,
9,
-21,
68,
12,
-10,
-7,
10,
41,
-5,
-19,
33,
-58,
55,
-7,
-47,
0,
-12,
-33,
25,
19,
-53,
30,
30,
49,
10,
-2,
-74,
-52,
-17,
20,
8,
-19,
-30,
7,
-30,
10,
0,
17,
-24,
-35,
39,
-33,
-20,
-3,
-9,
12,
51,
40,
8,
-71,
-5,
10,
-7,
-28,
86,
8,
-19,
-13,
-6,
-30,
12,
-58,
30,
30,
-53,
-4,
19,
2,
77,
-35,
-12,
14,
41,
-30,
-98,
-15,
-14,
-23,
-3,
-31,
-22,
-21,
-14,
-66,
-40,
-66,
53,
-31,
-24,
54,
32,
-61,
-2,
-17,
28,
-7,
43,
29,
-48,
3,
-5,
-28,
-9,
-37,
8,
-44,
8,
-1,
-44,
-49,
12,
32,
-59,
-33,
-34,
29,
34,
-47,
58,
-9,
53,
27,
10,
-42,
-59,
-14,
0,
-26,
38,
34,
-4,
-10,
43,
-20,
4,
18,
-2,
-16,
38,
36,
-7,
-97,
14,
-9,
-10,
10,
43,
32,
15,
-30,
-20,
-3,
19,
-30,
25,
-31,
-4,
15,
-21,
-6,
5,
-33,
-46,
-9,
48,
48,
-41,
17,
21,
-21,
-10,
-7,
-7,
6,
-42,
20,
55,
11,
39,
43,
-43,
3,
1,
-9,
26,
-5,
-20,
42,
-23,
-42,
2,
-104,
-61,
-5,
9,
-86,
-18,
-46,
2,
-48,
14,
0,
-54,
24,
13,
38,
-6,
25,
0,
5,
32,
23,
-24,
-20,
-31,
44,
-61,
-7,
34,
19,
5,
27,
9,
9,
13,
-13,
-35,
-33,
-26,
-7,
75,
-13,
2,
-13,
-5,
34,
63,
50,
48,
-4,
-11,
28,
21,
-23,
-30,
-23,
-37,
-15,
-44,
24,
13,
-26,
12,
10,
48,
-30,
-9,
3,
-10,
0,
-4,
-36,
-6,
41,
-2,
36,
-16,
45,
50,
-45,
-6,
29,
-16,
0,
49,
13,
26,
-5,
-27,
-36,
-14,
-65,
24,
51,
44,
3,
52,
-23,
13,
-47,
26,
8,
-33,
-19,
-28,
-37,
-24,
45,
6,
7,
37,
-17,
21,
-14,
13,
17,
1,
-6,
26,
18,
44,
2,
-24,
44,
-18,
34,
43,
-25,
57,
-21,
0,
11,
-34,
9,
10,
18,
-11,
19,
-43,
42,
11,
10,
-58,
-25,
1,
-37,
49,
12,
2,
16,
-25,
24,
9,
-62,
9,
8,
-66,
-58,
-7,
44,
-8,
31,
1,
25,
-6,
26,
39,
9,
19,
-9,
-21,
-19,
-63,
17,
6,
-57,
-12,
34,
-5,
-5,
-64,
74,
-55,
14,
47,
12,
-11,
23,
-8,
-7,
12,
-24,
-15,
10,
-35,
-19,
-3,
-2,
-6,
-45,
-7,
-9,
13,
-22,
-14,
-12,
5,
-16,
32,
-10,
-26,
-28,
49,
-2,
5,
1,
51,
41,
6,
26,
-41,
18,
-26,
-38,
-16,
-52,
-33,
32,
11,
18,
-59,
-23,
-43,
29,
-9,
-16,
23,
-7,
-21,
-34,
-2,
1,
43,
-8,
45,
10,
1,
33,
-19,
-28,
-8,
-1,
28,
20,
-24,
-1,
14,
-32,
1,
-13,
8,
14,
-5,
4,
42,
19,
-8,
-3,
-10,
-27,
-5,
10,
22,
-18,
-28,
10,
24,
-11,
-13,
6,
-3,
41,
-26,
7,
2,
9,
-38,
22,
-3,
-40,
38,
1,
55,
-32,
-20,
28,
25,
-26,
6,
-36,
-12,
-7,
-38,
40,
17,
-8,
-14,
0,
73,
47,
38,
24,
14,
-6,
-16,
-2,
-17,
-18,
65,
-13,
-38,
73,
-18,
9,
19,
-32,
-7,
-35,
-10,
65,
13,
45,
-54,
43,
36,
11,
62,
46,
21,
98,
-5,
-8,
61,
-10,
-4,
-33,
-3,
1,
-43,
-44,
-44,
8,
-11,
-27,
-27,
3,
21,
30,
-10,
-17,
2,
-1,
-4,
2,
-50,
-75,
16,
-2,
-26,
29,
7,
-56,
-35,
-65,
13,
-27,
20,
-13,
39,
-31,
-25,
3,
-3,
-60,
-13,
23,
5,
55,
-7,
-71,
48,
21,
-29,
26,
25,
-19,
7,
6,
-17,
-28,
27,
6,
44,
-4,
40,
-40,
50,
-28,
44,
21,
38,
21,
50,
-9,
16,
-15,
15,
58,
28,
-30,
43,
3,
77,
-46,
13,
-39,
10,
58,
22,
-9,
13,
28,
42,
14,
15,
37,
38,
-31,
11,
-38,
-6,
-45,
10,
5,
-1,
-69,
60,
5,
-21,
64,
-7,
-67,
36,
22,
-39,
-31,
-58,
-7,
5,
-52,
-37,
-5,
10,
29,
-17,
25,
24,
-31,
0,
11,
29,
-67,
23
] |
Wiest, J.
Plaintiff, on August 17, 1929, in the employ of defendant, suffered a sprain to his back but soon resumed work and continued to work for several months. The accident was reported by de fendant as noncompensable. Evidently, at the time of the accident, plaintiff had incipient or dormant tuberculosis of the spine, and, some months after the accident, this developed into a pronounced case of Pott’s disease, which is tuberculosis of the spine. Plaintiff also had a tubercular testicle and pulmonary tuberculosis. The testicle was removed, but Pott’s disease brought total disability.
The department found a causal relation between the accident and Pott’s disease and awarded compensation. Upon appeal in the nature of certiorari defendant contends that such finding was without supporting evidence and the claim is barred by the statute of limitations (2 Comp. Laws 1929, § 8431).
The medical experts were not in agreement upon whether or not the accident did, or even could have caused a flare-up of tuberculosis of the spine, but the department accepted the view that it could and did, and this conclusion finds support in the evidence, and we must abide the finding.
We quote from the finding of the department:
“We think it can be said that the weight of medical evidence produced on behalf of the defendant is to the effect that there was a tuberculosis process present August 17, 19.29, in the spine but that the same was not at that time disabling. So that, in so far as the medical evidence is concerned, the question upon this record is — whether or not the accident of August 17, 1929, aggravated and lit up the tuberculosis process in plaintiff’s spine on that date, so that his present disability resulted therefrom. * * *
“We think that the medical testimony establishes beyond any reasonable question that an injury may aggravate or cause to flare up a tuberculosis process in the spine so that disability may result therefrom. * * *
“The accident sprained or injured plaintiff’s back in the region that is now involved with Pott’s disease. His disability is total and was total from the date that he entered the hospital, August 22, 1930.
“Dr. Fahndrich in whose care plaintiff was states that Pott’s disease, at that time, had progressed to the extent that it was totally disabling. We think that the testimony in this case raises a strong inference that there is a causal relation between the injury which has been pointed out involving that portion of the spine in which the Pott’s disease has made considerable progress and we find as a fact that the injury of August 17, 1929, contributed to the disability which plaintiff now suffers.”
It is manifest that plaintiff had Pott’s disease at the time of the sprain to his back in August, 1929, but probably in an early stage. The award is based on the finding that the sprain aggravated or caused the disease to flare up. Pott’s disease is tuberculosis of the bony structure of the spinal column.
Plaintiff’s medical witnesses were of opinion that the fact of his being able to work at hard labor for several months after the sprain was persuasive evidence that the sprain aggravated and intensified the disease to the point of bringing about total disability.
Defendant’s medical witnesses, on the other hand, while conceding the possibility of aggravation by a severe traumatic injury, were decidedly of the opinion that an injury, sufficient to .accomplish such a result, would have produced such an intensifying of the disease as to disable plaintiff from laboring within a month.
So we have an instance of one set of- medical witnesses giving as a reason for their opinion the fact that plaintiff was able to labor for months after the sprain, and, therefore, there was aggravation of dormant or incipient tuberculosis of the spine, and another set of medical witnesses, giving plaintiff’s ability to so work as their reason for testifying that, in their opinion, the sprain had nothing to do with the Pott’s-disease from which plaintiff is now suffering.
The rule limits us to consideration of whether there was evidence supporting the finding, and, no matter what we may think about certain evidence, we must, in this case, concede there was evidence supporting the finding. The law places the responsibility on the department to find the facts and we can do no more, upon review by appeal in the nature of certiorari, than examine the evidence and determine whether there was any legal evidence in support of the decision.
Is the claim barred by the statute of limitations ? Defendant had knowledge of the accident and reported it as noncompensable, as it appeared to be at that time. Plaintiff’s disability did not develop within the six-month period immediately following the accident, but after the six-month period and within two years after the accident. That plaintiff had Pott’s disease was not called to his attention until he entered the hospital in August, 1930. When plaintiff found he had Pott’s disease he called upon the attorney for defendant, told him of the condition of his back, asked for compensation, and later, and about Thanksgiving time that same year, he met the attorney on the street in Battle Creek, again asked for compensation, and was told to write the attorney a letter. The letter was written. The department held that:
“If plaintiff knew of his condition on or about August 20, 1930, and did not make claim until November 29, 1930, he would not make his claim within the three-months’ period, bnt his testimony to the effect that he made a demand upon Mr. Paul for compensation for injury to his back, on August 20th, is not disputed upon the record and we find as a fact that he did on August 20, 1930, make claim upon the defendant for compensation as a result of the accidental injury of August 17, 1929.”
Under such finding there is no merit in the point that the statute of limitations has barred the claim.
Counsel for defendant contend:
“That plaintiff’s disability was and is, under the undisputed evidence, caused by tuberculosis of the lungs and throat, unconnected with the accident. ’ ’
The department held to the contrary and stated:
“The fact that plaintiff has pulmonary tuberculosis which is, or may be, disabling, does not defeat his claim for compensation in this case, as the commission cannot speculate as to what percentage of his disability is caused by the pulmonary tuberculosis or tuberculosis of the throat, and the Pott’s disease aggravated by the injury.”
We think our holdings in Hills v. Oval Wood Dish Co., 191 Mich. 411, and Letourneau v. Davidson, 218 Mich. 334, decisive of the question.
The award is affirmed, with costs to plaintiff.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
-16,
-37,
9,
58,
21,
17,
-22,
-29,
5,
34,
-62,
-40,
66,
17,
-17,
0,
42,
50,
0,
38,
-6,
0,
-17,
42,
15,
0,
-23,
-21,
0,
40,
67,
-41,
22,
-19,
-50,
-10,
31,
22,
30,
-7,
66,
-9,
-40,
5,
11,
1,
-6,
22,
14,
-17,
31,
-26,
-4,
-10,
-36,
-29,
39,
-16,
-6,
-4,
-43,
-18,
0,
-34,
20,
-29,
9,
12,
-28,
14,
-53,
-4,
2,
-49,
-25,
-43,
-19,
57,
9,
15,
17,
-25,
16,
12,
-10,
51,
-41,
-10,
-13,
15,
24,
-38,
20,
-18,
-90,
24,
27,
25,
15,
-1,
-40,
24,
-45,
7,
10,
14,
-16,
-28,
-11,
16,
-48,
49,
-15,
6,
0,
-16,
22,
-5,
40,
57,
38,
-19,
34,
17,
-15,
17,
-57,
17,
-6,
-11,
-15,
-1,
-55,
5,
5,
19,
-21,
-74,
24,
-23,
31,
11,
-21,
-19,
-20,
50,
-44,
-31,
47,
-31,
-25,
-39,
6,
-18,
0,
21,
1,
8,
15,
-23,
-45,
-8,
5,
-5,
10,
-2,
47,
15,
19,
-31,
28,
34,
34,
18,
-6,
85,
62,
-11,
-33,
25,
-38,
-18,
-1,
-7,
4,
-19,
-51,
-4,
61,
-3,
16,
-43,
-9,
-25,
-5,
-13,
-39,
-2,
4,
-36,
-2,
-11,
-51,
-25,
-6,
102,
-28,
32,
39,
-3,
5,
-37,
49,
-59,
-17,
-28,
-10,
7,
-80,
-7,
-26,
6,
35,
-35,
-46,
7,
-16,
2,
43,
-19,
-39,
16,
1,
39,
11,
-37,
-4,
14,
17,
21,
24,
0,
-41,
-21,
-44,
34,
-12,
-17,
-23,
-14,
-10,
26,
-21,
-16,
-38,
4,
14,
26,
-68,
6,
-52,
58,
20,
75,
99,
-1,
-25,
48,
30,
-28,
-38,
-60,
29,
-52,
-59,
-26,
-21,
30,
60,
6,
-30,
15,
7,
40,
7,
-3,
0,
20,
-18,
3,
21,
-55,
-47,
-30,
33,
9,
27,
17,
11,
0,
24,
29,
-17,
20,
-13,
6,
6,
28,
71,
-24,
-33,
21,
47,
-1,
31,
-6,
16,
0,
-9,
-24,
-84,
57,
-32,
12,
19,
-34,
-2,
-35,
-21,
9,
-20,
33,
2,
19,
14,
-65,
-4,
12,
4,
-17,
15,
71,
15,
31,
-13,
20,
17,
-2,
29,
5,
-31,
-6,
68,
-8,
-84,
21,
21,
-44,
-3,
58,
0,
-11,
33,
62,
-40,
-21,
10,
16,
-13,
19,
9,
6,
36,
-30,
-29,
-26,
40,
-11,
1,
5,
0,
72,
-17,
23,
-11,
39,
-24,
-27,
45,
5,
-33,
0,
75,
77,
-55,
3,
-48,
17,
-42,
8,
-53,
-6,
30,
53,
31,
-37,
16,
-27,
-3,
22,
41,
1,
5,
-29,
25,
-36,
35,
-24,
-48,
-32,
54,
-1,
-24,
-60,
-26,
-51,
28,
1,
-31,
-58,
22,
-44,
-7,
-51,
1,
-42,
-15,
-13,
19,
-15,
-28,
-15,
5,
-23,
-6,
80,
24,
21,
35,
16,
-2,
20,
30,
22,
1,
3,
-24,
-22,
21,
6,
-24,
-7,
44,
-22,
71,
19,
-8,
-36,
48,
-8,
28,
-12,
19,
-4,
26,
41,
-19,
0,
26,
-7,
38,
24,
6,
-15,
0,
10,
-38,
4,
-35,
11,
20,
-71,
-40,
9,
-30,
0,
-51,
32,
-47,
6,
-20,
-5,
-59,
-29,
42,
-58,
22,
-25,
19,
-9,
-76,
16,
-7,
-8,
48,
19,
68,
-18,
-36,
-11,
-46,
-2,
-9,
41,
-30,
-10,
4,
-22,
-24,
-62,
71,
-56,
23,
28,
-5,
-8,
-10,
-26,
-9,
-26,
-44,
-8,
28,
-32,
24,
-88,
-36,
-8,
7,
21,
9,
10,
17,
35,
-6,
-10,
44,
32,
31,
-3,
-11,
-12,
9,
12,
12,
-18,
-7,
28,
44,
14,
-14,
13,
3,
0,
-36,
-19,
-70,
17,
-16,
10,
-4,
-42,
68,
24,
-65,
-11,
42,
-35,
-11,
-58,
63,
19,
2,
43,
-13,
21,
14,
20,
-12,
8,
-12,
-35,
-28,
-16,
5,
79,
5,
-24,
32,
-34,
17,
69,
-24,
-52,
-27,
0,
-37,
21,
49,
47,
-69,
22,
-24,
17,
6,
41,
-40,
-39,
-8,
-14,
14,
-1,
-3,
-25,
-15,
44,
44,
36,
-22,
21,
-8,
-6,
43,
-3,
-41,
15,
8,
9,
-40,
-14,
-35,
65,
-77,
31,
-20,
24,
11,
24,
-27,
-12,
-6,
33,
-27,
-50,
3,
30,
-9,
-15,
-2,
-37,
37,
14,
17,
-3,
-4,
-50,
-23,
37,
-17,
6,
-5,
-36,
60,
26,
-16,
3,
24,
9,
58,
-44,
-14,
5,
27,
10,
55,
24,
-6,
-80,
21,
15,
-5,
58,
-60,
9,
15,
38,
-12,
-28,
5,
-43,
34,
6,
-38,
-1,
43,
18,
17,
-24,
-1,
-58,
15,
-4,
-13,
-63,
30,
71,
60,
-8,
1,
-43,
27,
7,
-12,
-8,
-46,
46,
23,
31,
48,
-35,
31,
-26,
43,
51,
-10,
-23,
-2,
-55,
36,
7,
-25,
-32,
46,
-67,
-16,
-23,
8,
2,
15,
29,
-14,
10,
-47,
-58,
-22,
12,
-18,
-2,
-31,
-22,
-15,
15,
22,
-33,
-50,
31,
-3,
-39,
-6,
8,
13,
-23,
17,
72,
-18,
-46,
-6,
18,
31,
14,
-32,
-29,
26,
-15,
58,
13,
-15,
6,
8,
15,
29,
15,
-44,
19,
-9,
29,
75,
59,
0,
-36,
-24,
0,
2,
34,
-35,
-13,
41,
36,
-14,
30,
-5,
27,
-27,
-74,
4,
-4,
21,
-26,
15,
-82,
-33,
-60,
-51,
-12,
60,
39,
1,
-18,
-55,
17,
40,
70,
42,
3,
66,
-49,
17,
54,
-15,
-12,
-35,
-56,
-6,
12,
-43,
-28,
12,
-33,
-13,
24,
14,
12,
-26,
-21,
8,
-37,
-21,
59,
37,
-3,
21,
10,
23,
-43,
-34,
22,
-28,
0,
7,
-14,
4,
-34,
-50,
64,
-7,
17,
-4,
-6,
-46,
0,
0,
-23,
-28,
-51,
7,
-20,
7,
22,
5,
-9,
-53,
27,
55,
18,
-36,
-7,
36,
-44,
-17,
-34,
-18,
17,
-29,
12,
-7,
46,
-4,
50,
3,
43,
6,
-7,
44,
10,
-23,
-34,
-29,
11,
-8,
20,
64,
15,
-5,
-17,
-16,
-36,
8,
-14,
6,
-25,
61,
33,
-6,
72,
-19,
-6,
14,
17,
17,
38,
9,
27,
19,
-8,
24,
38,
4,
9,
19,
24,
-2,
-4,
-42,
22,
-14,
0,
-13,
40,
-30,
-3,
43,
12,
-49,
-20,
-2,
-26,
-6,
7,
5,
13,
-34,
-90,
-66,
11,
-78,
-40,
-42,
5,
2,
-20,
-31,
6,
-54,
48,
2,
2,
22,
-35,
0,
28,
-16,
-24,
-23,
30,
13,
1,
53,
-13,
-27,
-30,
9,
73,
-33,
-21,
32,
25,
-23,
-56,
5,
48,
15,
20,
50,
15
] |
Clark, J.
In this suit on a policy of fire insurance, there being no dispute of loss, and the question being on cancellation and of law, a verdict for plaintiff was directed, on which judgment was entered. Defendant has appealed.
The question is: Did the depositing a notice of cancellation of the policy in this case, inclosed in an envelope deposited at the post office in the city of Pontiac, on December 10,1929, postage prepaid, and registered mail, directed to said plaintiff at his last address as given by him in his application for said insurance, constitute such a notice of cancellation as to relieve the defendant company in this case of liability under said policy, even though said notice of cancellation was not actually received by the plaintiff herein prior to the fire which occasioned the loss upon which this suit is predicated?
The trial judge stated the facts:
“On September 23, 1929, defendant issued its policy insuring plaintiff’s house and household goods situate in Brandon township, in consideration of a premium then paid. On December 5, 1929, defendant’s board of directors deemed the risk un desirable, and passed a resolution canceling the policy in accordance with the following by-law of the company, a copy of which was attached to the policy, section 18:
“ ‘It shall be the duty of the secretary or board of directors to appoint one member iu each township to act as a committee of safety, whose duty it shall be to take risks, and look after the general interests of the company, and, from time to time as the board may direct, examine the property insured by this company, and in the case of decrease in value' or of its becoming more hazardous, or of its being heavily mortgaged, report the same to the secretary or board of directors, who shall take such action as in their judgment the best interests of the company require, and, if they find it necessary, suspend the force or cancel such poliey of insurance and a written notice mailed to the last-known post office address of the insured shall be sufficient notiee of such cancellation.’
“The secretary of the company thereafter, on December 10, 1929, mailed a notice of cancellation of the policy by registered mail accompanied by the company’s check for the unearned premium on the policy. The notice was mailed to plaintiff’s last-known address which was given on the application as Ortonville. The testimony shows that plaintiff in the meantime, about December 15th, moved from his farm near Ortonville to a home near Thomas, a distance, I think, of some 12 to 15 miles, so that his new mailing address was at the latter place. The notice of cancellation was undelivered by the post office and was returned to the defendant about December 26th. The defendant’s secretary thereupon made further inquiry and was informed that plaintiff’s new address was at Metamora and the secretary on December 28th mailed the notice and check by registered mail to plaintiff at Metamora. The letter was never delivered to plaintiff and his home and household goods were destroyed by fire on December 31st.
. “At the close of the proofs, defendant’s counsel made a motion for directed verdict on the ground the policy was not in effect at the time of the loss. The question raised is a new one in this State. The by-laws of the company, to which plaintiff agreed at the time the policy was issued, provided that written notice of cancellation of the policy mailed to the last-known post office address of the insured shall he sufficient notice of cancellation. The notice was mailed in accordance with this provision of the policy, but it is undisputed that it was never delivered. ’ ’
Authorities on the question are in flat conflict. We think the better rule is as stated in 3 Joyce on Insurance (2d Ed.), §§ 1669 and 1669 B:
“Notice of cancellation, if given by mail, must be .received before loss by the party entitled thereto, or by his agent authorized to receive the same, otherwise there is no cancellation, even though a by-law provides for service of the notice personally or by mail. * * *
“A notice of cancellation sent by registered letter, marked return in five days, is insufficient where it was not received by the assured on account of his absence and was returned to insurer in accordance with his request upon the letter and in compliance with Federal statute regulating such matters, even though the policy stipulation made a notice sufficient by depositing the same in the mail addressed to the insured, postage prepaid. ’ ’
For discussion of authorities, see 6 Couch, Cyclopedia of Insurance, § 1440, where it is said:
“And, as a matter of fact, the weight of authority seems to regard receipt of the notice as a condition precedent to cancellation. ’ ’
Affirmed.
This opinion was written by Justice Clark before his retirement and is concurred in by Justices Potter and Sharpe. . | [
-31,
0,
18,
14,
4,
20,
45,
-39,
1,
14,
68,
25,
22,
44,
-39,
-17,
-39,
15,
1,
12,
-41,
-3,
-75,
-30,
-29,
-56,
-1,
-25,
25,
56,
-45,
-4,
-25,
-4,
-43,
1,
-37,
-28,
-32,
6,
-13,
11,
46,
-33,
6,
-29,
-26,
-2,
21,
17,
57,
24,
20,
-23,
24,
12,
-27,
32,
-20,
-23,
-53,
-38,
27,
69,
18,
7,
-14,
15,
16,
57,
17,
16,
-21,
9,
0,
17,
-13,
-27,
-73,
3,
-5,
-64,
1,
6,
-15,
-15,
3,
-17,
-16,
29,
-25,
-30,
-21,
-35,
-1,
-32,
-4,
25,
-21,
39,
64,
6,
-24,
-1,
-1,
0,
7,
-28,
-67,
23,
-45,
20,
-8,
-19,
29,
9,
-11,
9,
38,
-20,
36,
8,
-23,
-18,
22,
26,
31,
27,
-34,
20,
-9,
11,
-19,
38,
15,
-38,
-15,
-18,
19,
-37,
18,
7,
-10,
-27,
-72,
18,
-11,
-19,
-42,
-7,
2,
35,
-17,
6,
-27,
23,
14,
-63,
54,
-52,
-22,
-8,
-24,
33,
-49,
2,
-22,
23,
0,
0,
-1,
-30,
-1,
19,
51,
23,
41,
-27,
-10,
10,
16,
16,
-6,
-19,
35,
-40,
1,
-40,
9,
8,
75,
-54,
-17,
29,
-38,
23,
4,
48,
34,
-34,
6,
-20,
-35,
-24,
-13,
9,
11,
-47,
-6,
43,
-39,
24,
-39,
-47,
7,
36,
-11,
-50,
-5,
-49,
-27,
46,
-61,
21,
-9,
-55,
-48,
1,
-29,
-6,
-41,
24,
27,
29,
16,
32,
53,
16,
27,
31,
20,
34,
27,
-26,
46,
2,
-5,
12,
8,
18,
12,
-14,
9,
42,
5,
-1,
-48,
8,
-17,
41,
-12,
16,
-50,
-15,
58,
-27,
52,
-18,
-17,
3,
15,
3,
32,
-36,
-47,
-65,
54,
-10,
7,
-25,
27,
-8,
-62,
-13,
9,
8,
-2,
-26,
-28,
-41,
13,
-9,
3,
26,
54,
-10,
53,
-22,
-21,
-32,
2,
37,
-5,
-1,
-23,
-11,
-60,
-32,
-44,
19,
-29,
-10,
-44,
12,
25,
-65,
-22,
31,
-13,
-9,
18,
68,
-13,
-26,
-20,
-15,
47,
-10,
0,
20,
-36,
-44,
8,
25,
18,
2,
39,
-18,
-17,
-18,
-5,
-15,
-18,
22,
-51,
42,
4,
32,
3,
3,
-19,
12,
-18,
3,
-6,
15,
46,
-9,
-36,
81,
56,
42,
21,
24,
51,
20,
-4,
36,
-25,
56,
45,
9,
-14,
-36,
-5,
9,
-40,
16,
-68,
20,
1,
-49,
-13,
38,
33,
16,
0,
-5,
-37,
-14,
-34,
-49,
-6,
35,
-21,
-26,
-36,
-7,
-50,
11,
1,
32,
-44,
-24,
-53,
13,
-13,
-60,
-7,
-5,
-32,
14,
18,
-58,
13,
7,
21,
-1,
10,
-18,
28,
-7,
16,
12,
-40,
-48,
56,
18,
13,
11,
-3,
20,
-23,
4,
-14,
30,
-33,
-42,
5,
11,
-40,
-2,
-63,
38,
4,
-57,
-38,
-11,
17,
-40,
12,
6,
-10,
9,
-13,
45,
-28,
-10,
12,
-38,
40,
-11,
-22,
-20,
-24,
41,
37,
-1,
59,
-38,
-24,
-5,
-27,
-46,
-54,
0,
-19,
-25,
-46,
56,
-21,
24,
-41,
22,
-15,
-15,
15,
-15,
12,
36,
58,
34,
-13,
-15,
6,
34,
-47,
11,
14,
-57,
23,
-52,
9,
0,
50,
11,
-28,
-7,
-25,
46,
0,
10,
68,
-9,
26,
82,
-20,
17,
22,
41,
6,
-34,
-66,
-19,
-38,
-32,
5,
-10,
27,
-20,
27,
12,
43,
-13,
4,
67,
20,
15,
6,
-3,
-18,
8,
-26,
53,
-37,
27,
-18,
32,
25,
-19,
-22,
-30,
28,
-8,
27,
3,
34,
-17,
4,
54,
-20,
-1,
48,
0,
4,
-15,
-35,
-1,
-30,
-22,
-14,
-17,
-17,
17,
-22,
31,
0,
-3,
-35,
26,
-8,
-16,
-42,
-22,
33,
12,
3,
-17,
-53,
9,
10,
30,
-17,
-4,
2,
-12,
-21,
-40,
-1,
7,
-38,
21,
-17,
1,
1,
24,
-9,
-27,
-2,
7,
8,
33,
-48,
11,
13,
13,
10,
-10,
48,
-7,
44,
-18,
36,
46,
-10,
-9,
54,
6,
35,
74,
16,
11,
33,
-40,
37,
-27,
-1,
44,
-42,
-29,
-24,
-34,
28,
20,
10,
20,
-47,
-2,
-4,
-19,
-8,
17,
17,
2,
-27,
-30,
53,
36,
21,
-42,
-8,
-24,
11,
16,
-32,
18,
12,
24,
13,
40,
9,
-13,
33,
20,
11,
24,
1,
18,
22,
53,
13,
34,
20,
27,
22,
-1,
-35,
19,
7,
-6,
-16,
5,
-51,
9,
26,
-17,
24,
37,
50,
-10,
-2,
-9,
27,
-1,
-30,
0,
6,
-24,
62,
32,
7,
4,
59,
-32,
-47,
16,
58,
-13,
-53,
-22,
0,
-90,
57,
-2,
-13,
9,
41,
-4,
-12,
26,
43,
-39,
2,
-30,
-25,
7,
50,
-8,
14,
-1,
-16,
-25,
5,
14,
-32,
53,
29,
6,
56,
-2,
0,
-20,
-2,
4,
24,
15,
-1,
14,
10,
-13,
24,
-33,
18,
0,
-17,
3,
16,
-12,
-27,
-64,
5,
23,
5,
-30,
-5,
27,
4,
-65,
-2,
-2,
-18,
16,
11,
26,
-44,
-52,
-16,
-6,
-30,
-5,
15,
46,
-35,
-47,
-33,
34,
16,
-64,
-28,
6,
-15,
17,
-3,
28,
-8,
24,
-50,
48,
27,
-25,
-9,
-9,
15,
-25,
0,
14,
-51,
11,
-9,
4,
-49,
44,
18,
-7,
28,
-69,
1,
-20,
29,
3,
-19,
-30,
-1,
-7,
-24,
-11,
9,
-13,
-29,
-13,
-14,
-22,
-27,
14,
16,
-32,
-31,
18,
9,
-20,
-35,
-23,
16,
55,
-4,
-32,
11,
-44,
19,
6,
13,
13,
-34,
-62,
56,
-14,
-43,
-5,
-18,
-24,
-6,
30,
0,
-21,
-28,
4,
-29,
-73,
57,
-31,
19,
-3,
25,
36,
-65,
-31,
-19,
-11,
-9,
53,
52,
19,
9,
18,
8,
1,
-52,
4,
43,
4,
-2,
-52,
16,
20,
16,
34,
5,
-40,
14,
45,
1,
-11,
13,
-28,
15,
31,
5,
5,
-22,
32,
-15,
3,
13,
-24,
28,
27,
13,
37,
33,
6,
33,
20,
-21,
68,
25,
-59,
-2,
-52,
14,
33,
8,
-51,
12,
-20,
1,
6,
46,
-35,
20,
27,
28,
-18,
3,
38,
-30,
-19,
-19,
39,
-23,
-33,
-59,
-4,
-15,
-7,
-3,
6,
1,
-9,
-4,
-43,
1,
-13,
34,
0,
-60,
-16,
50,
-15,
-47,
-2,
2,
-14,
5,
35,
-5,
31,
7,
-29,
28,
-14,
5,
17,
41,
1,
15,
-29,
-23,
8,
-26,
-32,
70,
-1,
54,
-6,
44,
-4,
-23,
24,
9,
8,
-5,
45,
35,
37,
4,
-12,
-52,
11,
-28,
-4,
38,
57,
3,
2
] |
Potter, J.
George D. Badder, November 23, 1922, gave a mortgage to plaintiff covering real estate in Detroit. July 10, 1930, plaintiff gave notice of mortgage foreclosure sale of the mortgaged premises to be held October 9, 1930, by advertisement. While this advertisement of notice of foreclosure sale was running, and on September 24, 1930, just prior to. the date fixed in the advertisement for the sale of the premises, plaintiff applied to the circuit court of Wayne county for a receiver, and the trial court appointed a receiver of the premises, who collected and disbursed the rent, income, and profits of the mortgaged premises, to the exclusion of the mortgagor and those claiming under him, contrary to 3 Comp. Laws 1929, § 14956, which, as repeatedly construed by this court, prohibits the mortgagee, his representatives or assigns, from taking possession of the mortgaged premises until the title thereto shall have become absolute upon foreclosure of the mortgage. Reliance is placed upon Nusbaum v. Shapero, 249 Mich. 252, to support the action of the trial court. This case was decided upon the particular facts there involved and is not to be construed as changing, modifying, or abrogating the rule declared by statute and repeatedly recognized by this court. Union Guardian Trust Co. v. Rau, 255 Mich. 324; White v. Fulton, 260 Mich. 346; Equitable Trust Co. v. Milton Realty Co., 261 Mich. 571; Bankers Trust Co. v. Russell, 261 Mich. 579. The applicable rule was thus stated in National Lumbermans Bank v. Lake Shore Machinery Co., 260 Mich. 440:
“It seems to be well established that such an appointment can be made only as ancillary to other relief sought in the bill of complaint.
“ ‘Ordinarily, unless perhaps in the ease of infants or lunatics, a suit must be actually pending to justify a court of equity in appointing a receiver.’ High on Receivers (4th Ed.), § 17.
“ ‘As a general rule, a receivership is a purely ancillary remedy and cannot be maintained in a proceeding instituted solely for that purpose.’ 23 R. O. L. p. 11.
“ ‘Unless the case is within a statute providing for the appointment of a receiver upon his application, a general or simple contract creditor who has not reduced his claim to judgment, who has no right or interest in, or lien upon, the property of the debtor, and whose interest or position does not differ from that of any other ordinary creditor, has no standing to obtain the appointment of a receiver of such property.’ 53 O. J. p. 29.
‘ ‘ ‘ The order appointing a receiver was void, for the reason that it was made when there was no suit pending.’ Merchants & Manfrs. Nat’l Sank v. Kent Circuit Judge, 43 Mich. 292, 296.
“ ‘This appointment of a receiver, even if one could have been appointed at any stage of the ease, was absolutely void, as the bill had not been filed and no suit commenced at the time.’ Jones v. Schall, 45 Mich. 379, 380.’ ”
The appointment of a receiver, under the circumstances, was without jurisdiction, unwarranted, and in direct violation of the applicable statute. In Straus v. Barbee, 262 Mich. 113, the mortgage cov ered the rents, income, and profits, while the mortgage in this case does not. It was there said:
“The mortgagors and subsequent holders of title under conveyances from them were and are entitled to the possession of the mortgaged property, and the rents, income, and profits thereof until foreclosure sale and the expiration of the equity of redemption. Wagar v. Stone, 36 Mich. 364. The appointment by the court of a receiver, except under extraordinary circumstances, does not alter this rule. Hazeltine v. Granger,, 44 Mich. 503. The court has no jurisdiction, power, or authority to order, direct, or decree a receiver appointed by the court to take possession of and collect and disburse the proceeds arising from the rents, income, and profits of the real estate mortgaged; to apply the proceeds thereof to the payment of preferred or other creditors. The taxes assessed against the mortgaged property may be a lien against it, but this gives the court no power or authority to direct the application of moneys arising from something not legally mortgaged, upon which the sovereignty has no lien, to the payment of taxes on the mortgaged property so as to relieve it, or the purchasers thereof at mortgage sale, from the lien of the taxes thereon, and thus wrongfully convert property not legally mortgaged to such payment. Wagar v. Stone, supra; Hazeltine v. Granger, supra; Union Trust Co. v. Charlotte General Electric Co., 152 Mich. 568; Union Guardian Trust Co. v. Rau, 255 Mich. 324.”
Decree of the trial court reversed, with costs. A decree will be entered directing the receiver to account, up to the time of the expiration of the equity of redemption, to the mortgagor or his personal representative for the rents, income, and profits of the mortgaged premises in his hands. He will be entitled to credit for the moneys paid, laid out, and expended by bim for the benefit of the mortgaged premises. The receiver is.not entitled to compensation from the estate of the mortgagor for his services.
Clark, Sharpe, Fead, and Wiest, JJ., concurred with Potter, J. McDonald, C. J., and North and Butzel, JJ., concurred in the result. | [
-35,
35,
23,
-42,
-5,
-9,
19,
46,
-35,
-16,
37,
-49,
10,
29,
-19,
-8,
20,
-5,
-42,
-7,
-13,
15,
-40,
-4,
5,
-13,
6,
-71,
15,
-35,
-7,
-27,
-13,
46,
-11,
-8,
-2,
-41,
32,
-21,
4,
46,
14,
-6,
0,
-8,
35,
-21,
4,
12,
-14,
-20,
20,
18,
-4,
-61,
-43,
8,
18,
18,
3,
-28,
12,
-4,
24,
2,
9,
15,
5,
-36,
-35,
-9,
6,
4,
55,
10,
22,
12,
-45,
-32,
46,
-86,
34,
-60,
5,
-31,
22,
16,
-22,
17,
-69,
24,
-10,
62,
16,
-20,
61,
37,
28,
42,
-16,
5,
0,
-4,
3,
1,
-21,
-38,
-46,
-3,
34,
-66,
61,
18,
-9,
-18,
-25,
10,
64,
31,
19,
-44,
14,
-48,
20,
90,
-34,
38,
-9,
-19,
-30,
24,
-20,
48,
-21,
-11,
27,
-12,
-7,
-27,
10,
-39,
-20,
-34,
-43,
-7,
18,
2,
21,
-6,
-29,
51,
6,
60,
17,
36,
44,
-30,
0,
-27,
18,
-83,
-12,
-27,
-53,
5,
-25,
-5,
-47,
14,
26,
-26,
3,
9,
-23,
-41,
19,
15,
2,
5,
24,
-10,
10,
-20,
5,
-44,
-22,
-51,
13,
18,
38,
-40,
-9,
24,
-64,
24,
21,
8,
-15,
-30,
-5,
-23,
-19,
-7,
16,
-3,
0,
-42,
9,
14,
-74,
35,
-24,
-10,
6,
-17,
-10,
-14,
24,
7,
-34,
8,
17,
80,
-6,
-28,
5,
-46,
76,
36,
11,
-26,
-17,
17,
-6,
-14,
4,
25,
-1,
13,
0,
0,
-4,
24,
-36,
10,
20,
1,
4,
-7,
8,
-4,
19,
25,
-25,
50,
-41,
-2,
-28,
-3,
15,
24,
-56,
11,
27,
-13,
35,
1,
-7,
38,
-36,
25,
88,
12,
-22,
-64,
-27,
-9,
0,
-13,
-20,
-14,
-9,
2,
-24,
-8,
35,
-23,
-32,
27,
-27,
3,
-33,
22,
11,
21,
-67,
-29,
74,
7,
-26,
12,
20,
-8,
4,
-46,
-42,
-26,
-10,
-9,
13,
-6,
11,
-42,
44,
30,
-16,
58,
-28,
-5,
75,
-2,
-35,
18,
-9,
-1,
41,
-23,
-53,
40,
-35,
-36,
-17,
9,
2,
45,
31,
-13,
31,
-14,
6,
-7,
-3,
6,
36,
-11,
-8,
13,
-21,
4,
-57,
12,
-31,
26,
10,
13,
-2,
43,
-25,
68,
18,
9,
6,
-45,
33,
-16,
-48,
-39,
43,
10,
17,
21,
10,
-5,
0,
3,
-44,
0,
-33,
17,
24,
-28,
17,
19,
40,
13,
-16,
-19,
35,
-14,
-61,
-22,
25,
14,
-39,
2,
6,
-1,
-53,
-7,
9,
47,
-102,
1,
-36,
2,
10,
-41,
-22,
64,
-3,
2,
-26,
16,
7,
15,
39,
-1,
4,
-33,
28,
-10,
-12,
18,
-11,
4,
36,
0,
18,
40,
-2,
46,
9,
7,
31,
54,
-22,
-23,
-56,
30,
15,
-50,
-26,
-17,
-9,
16,
-35,
-17,
53,
-30,
11,
21,
-9,
34,
15,
-31,
11,
18,
-57,
-47,
81,
-83,
12,
-6,
-86,
-24,
-7,
13,
-8,
15,
-44,
-39,
-15,
-37,
-8,
32,
-2,
24,
-50,
33,
-22,
29,
-1,
25,
-17,
-47,
-34,
-19,
-33,
-36,
14,
-43,
20,
32,
0,
-11,
-39,
-1,
-3,
12,
44,
-18,
38,
24,
23,
11,
-5,
-33,
13,
25,
-37,
-10,
-14,
55,
31,
34,
-15,
-12,
22,
22,
34,
-10,
-23,
-42,
0,
35,
55,
21,
39,
-28,
4,
-2,
37,
23,
12,
15,
-24,
38,
24,
-10,
-11,
38,
14,
29,
12,
37,
-10,
4,
-1,
-61,
-9,
-54,
-41,
-13,
20,
25,
-32,
-8,
71,
7,
-17,
-9,
33,
-25,
33,
-55,
2,
-47,
-66,
11,
-36,
0,
27,
-38,
-28,
-20,
-8,
-44,
-3,
-29,
-27,
-15,
21,
-63,
-3,
-11,
-1,
-52,
29,
70,
7,
-17,
-19,
38,
-29,
-30,
-31,
26,
-12,
28,
-42,
-3,
11,
-40,
-27,
-53,
-18,
-2,
17,
4,
-12,
-7,
-14,
25,
-18,
6,
-4,
3,
-6,
34,
16,
34,
10,
26,
7,
-14,
22,
38,
-11,
13,
-1,
12,
19,
-28,
50,
-8,
15,
-27,
-34,
1,
-57,
7,
-42,
23,
-26,
-20,
-9,
-37,
40,
-28,
-41,
17,
-10,
-2,
27,
-6,
32,
-86,
52,
-24,
5,
-38,
-20,
-8,
39,
2,
51,
0,
-1,
-50,
22,
17,
22,
54,
23,
0,
-40,
42,
17,
24,
4,
-8,
-18,
43,
23,
-20,
69,
-8,
19,
0,
41,
-3,
-26,
-7,
26,
-23,
27,
16,
42,
-30,
45,
-42,
-3,
22,
-29,
34,
-7,
-31,
-1,
-4,
-34,
21,
47,
-16,
18,
42,
7,
-27,
-17,
19,
-38,
-21,
-8,
-17,
-2,
-40,
42,
3,
-37,
18,
2,
-45,
-25,
4,
-23,
-1,
-6,
-7,
-36,
-1,
-16,
-6,
40,
-6,
-4,
12,
17,
28,
13,
-2,
18,
10,
-30,
-16,
34,
-20,
10,
18,
-47,
0,
17,
10,
-3,
15,
37,
52,
3,
-20,
-4,
-73,
-46,
-10,
-21,
-15,
1,
-29,
-20,
-12,
60,
-56,
59,
-33,
14,
-18,
37,
-6,
35,
35,
32,
4,
-19,
5,
-1,
-60,
-10,
2,
55,
-57,
35,
14,
34,
5,
35,
26,
40,
-19,
-13,
-23,
36,
-38,
10,
-34,
11,
-7,
-56,
42,
12,
66,
-25,
-23,
-25,
36,
-4,
-15,
-10,
-32,
-54,
-19,
-14,
33,
33,
-32,
58,
-5,
13,
-55,
43,
21,
43,
-5,
-19,
-34,
-22,
54,
-22,
-2,
13,
-13,
-31,
11,
2,
-2,
8,
23,
0,
14,
-22,
13,
19,
-4,
58,
37,
-12,
5,
19,
-26,
-12,
7,
5,
-15,
30,
13,
12,
-42,
-26,
3,
23,
18,
37,
-64,
-6,
30,
-4,
-5,
-27,
27,
53,
-7,
0,
35,
-6,
42,
-32,
62,
23,
45,
-18,
-7,
50,
-39,
-45,
-35,
-54,
-6,
-17,
24,
-9,
32,
2,
-2,
0,
0,
-46,
-28,
2,
12,
70,
-23,
42,
-45,
-5,
-44,
-54,
-2,
0,
-60,
33,
3,
11,
33,
-24,
23,
-30,
41,
51,
-101,
6,
-3,
32,
3,
-22,
7,
8,
6,
-8,
56,
68,
26,
8,
-22,
-47,
-19,
37,
12,
-14,
11,
-11,
-35,
-36,
-23,
-23,
-29,
23,
-71,
76,
-20,
27,
10,
2,
-11,
-8,
-5,
-8,
-17,
-7,
-4,
15,
33,
18,
4,
-20,
-4,
14,
32,
5,
-30,
27,
-38,
-23,
11,
42,
-2,
6,
55,
-26,
-18,
1,
32,
6,
0,
33,
48,
9,
2,
47,
2,
-20,
15,
-52,
-49,
-35,
-6,
0,
43,
-80,
22,
25,
37,
17,
-30,
59,
18,
-36,
38
] |
Butzel, J.
Simultaneously with the commencement of an action for divorce by L. Philip Van Hartesveldt against his wife, LaVerna Van Hartesveldt, plaintiff Van Hartesveldt brought the instant suit against Dr. William Westrate for alienation of his wife’s affections. LaVerna did not oppose the divorce suit, but on the contrary appeared as a witness on behalf of her husband. The instant suit was tried some time after plaintiff had obtained a decree of divorce. The declaration included a count for simple alienation and a second one for criminal conversation. Prior to the trial, plaintiff was permitted to amend his declaration by adding a' third count asking damages for humiliation, disgrace, etc., which he claims to have suffered through defendant’s alleged actions in preparing for the defense of the suit: Defendant denied all charges, and claimed that the case was part of a conspiracy between plaintiff and his former wife to extort money from him by means of blackmail, and that if the affections of plaintiff’s wife were alienated at all, it was through her association with a party other than defendant.
The facts in the case are unpleasant, and will be referred to only as they may be necessary to discuss the various claims of error.
At the outset, plaintiff found himself confronted with the provisions of 3 Comp. Laws 1929, § 14221, which restricts the testimony of a husband or wife in certain situations, and provides :
“Nor shall either, during the marriage or after-wards, without the consent of both, be examined as to any communication made by one to the other during the marriage, but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.”
As was said in Carter v. Hill, 81 Mich. 275, 279:
“The clear purpose of the statute is to preserve with sacredness the confidences of the marriage state, and to render it impossible for either husband or wife to speculate upon the other’s dishonor, relying upon their own testimony to make or support a case. The purpose of the statute is salutary, and it is the duty of the courts to see that it is not disregarded. ’ ’
When plaintiff took the witness stand, objection was made to his giving testimony revealing the contents of confidential communications made by his former wife during the continuance of the marital relation. In answer to this, plaintiff’s former wife consented in open court to his examination as tq communications made by her to him. His consent to her testimony as to similar communications is apparent, inasmuch as plaintiff called her as his witness and the details of these conversations were brought out on direct examination.
In order to evade the prohibition in the statute, plaintiff withdrew the second count of the declaration before testimony was taken, and thereby sought to change the theory of the case from one brought in consequence of adultery to a simple alienation of affections suit, lacking elements of criminal conversation. Notwithstanding the withdrawal of the second count from the declaration, and the mutual consent of plaintiff and his former wife to testimony revealing confidential communications, any testimony given that tended to indicate that the action was brought in consequence of adultery was clearly incompetent. Plaintiff insists, however, that the testimony tends only to prove simple alienation, and that the admission of evidence in regard to actions and conversations which do not ordinarily indicate criminal conversation, even though an inference to that effect may possibly be drawn, is not improper. Merrill v. Leisenring, 157 Mich. 133; Barnes v. Tibbitts, 164 Mich. 217; Sweikhart v. Hanrahan, 184 Mich. 201.
Imparting their ordinary significance to many of the phrases and expressions employed by plaintiff and his former wife during the course of their testimony,' we are irresistibly inclined to believe that they refer to criminal conversation. The record discloses much improper moral conduct on the part of many of the important witnesses, including plaintiff’s former wife and plaintiff himself. Under these circumstances, none but an extremely gullible jury would assign a more innocent connotation to the ex pressions used. When plaintiff stated that his wife told him that she couldn’t stand living with him any more after what she had done; when counsel twice asked:
“Now on one of those visits, did your wife there in the office make a statement of this transaction, of all her relations with the doctor?”
when plaintiff’s former wife, called as a witness in his behalf, was asked with regard to a conversation with the defendant:
“Did you tell him that if it wasn’t for one particular fact, you might listen to him?”
when again she was asked why she no longer had any love for her husband, and she stated:
“Because I wronged him;”
and when, in response to the question:
“Why did you tell Phil what you did about your relations with the doctor ? ’ ’
she answered:
‘ ‘ Because I had wronged Phil, ’ ’
it is impossible to believe that the jury could have failed to note implications of criminal conversation.
There is further a veiled insinuation that plaintiff was not the father of both of the children borne by his former wife. The declaration, as originally filed, stated that the plaintiff and his wife had one child. Subsequently, it was amended so as to read:
“That there was born to the wife of the said plaintiff two children.”
Practically no mention of the second child was made in the testimony. The judge in his charge made reference to plaintiff, his former wife, and their “child” without any effort on the part of counsel to correct him. Testimony given by plain-_ tiff as to the date when marital relations ceased, the age of the first child, and other facts revealed in the course of the trial, may have given rise to speculation on the part of the jury as to the parentage of the second child. We mention this so that prejudicial insinuations may be avoided should the case be tried again.
All of these facts being considered, together with the size of the verdict ($8,000), we are led to the conclusion that the question of adultery was injected into the case, not by mere inference, but almost by direct testimony. Such a conclusion is inescapable if the testimony referred to heretofore is given its ordinary meaning. We believe that the correct rule was stated in the case of Barnes v. Tibbitts, supra, 220, relied on by appellee, where the court said such testimony is to be excluded when — ■
“the reasonable, and practically the only, inference to be drawn from this testimony, is that it tended to show adultery.”
The appellee, however, contends that in most instances appellant failed to make proper objections or requests to strike from the record the answers complained of. It is also pointed out that no fault was found with parts of the charge to the jury now claimed to be erroneous. The record shows that, in a number of instances, appellant’s counsel objected to these questions but failed to state a valid basis for the objections. Defendant’s counsel states that, had he been more specific in giving his reasons for objecting to the questions asked or requesting that the answers be stricken, he would have emphasized the very evil he was seeking to prevent. We need not discuss each improper question and answer, inasmuch as the case must he reversed on other grounds. If there is a retrial, counsel should exercise due care to prevent a recurrence of the error.
Prior to the trial, traps were set by both plaintiff and defendant in attempts to obtain damaging evidence. It may be that the large verdict of $8,000 was partially influenced by revelations in the course of the trial as to the unusual method employed by a detective agency to put plaintiff in a compromising position. Figuring in the pre-trial maneuvers of the plaintiff was a young man, Wabeke, by name, who occupied desk space in the office of a Holland attorney. Wabeke first appeared in an unsuccessful attempt to record the details of an interview between defendant and plaintiff’s former wife by means of a dictaphone. Later, he composed what was described during the course of the trial as a “fake” or “decoy” letter, purporting to be signed by one of the witnesses. He confronted defendant with this letter, claiming it had been so signed. He also wrote out a statement which was signed by plaintiff’s former wife. Neither the letter nor the statement were ever admitted in evidence.
Counsel for plaintiff strenuously attempted to get the contents of the letter before the jury, although he knew it was not genuine. After the court had made a positive ruling that the letter could not be introduced in evidence, plaintiff’s attorney continued his efforts to get its contents before the jury, compelling defense counsel to make at least three more objections to the reception of this evidence. This persistence on the part of plaintiff’s counsel, coupled with defendant’s unwillingness to permit such improper testimony, must have had a prejudicial effect upon the jury. Similarly, plaintiff’s attorney persisted in trying to bring before the jury the contents of the statement signed by plaintiff’s former wife prior to the trial and used in an effort to force a settlement from defendant. Although the court had already made several rulings that left no doubt as to the inadmissibility of the statement, plaintiff’s attorney, in the presence of the jury, stated:
“We offer it, if they want it.”
The damage caused by the injection of testimony in this manner has often been commented upon and has led to the reversal of many judgments by our court.
Plaintiff attempted to justify his tactics by the assertion that defendant opened the door to such testimony by his references to the spuriousness of the letter and statement. While the door was opened to evidence designed to meet defendant’s contention that Wabeke was the author of these two documents, the truth of their contents was certainly not put in issue thereby. Plaintiff admits that the letter was a “fake,” and that the statement was not one made in court. Under the circumstances, their contents had no place in the record, and plaintiff’s conduct constituted reversible error. Scripps v. Reilley, 38 Mich. 10; In re Fine’s Estate, 249 Mich. 391.
Quoting from the record, we find the following:
“Q. Did the doctor ever say anything to you as to whether or not he had been accused of any misconcjuct with anybody else? • ,
“Mr. Lokker: I object to that, yoiir honor.
“The Court: Objection sustained.
‘ ‘ Q. Did he ever tell you anything about whether he loved his wife?
“Mr. Lokker: I object to that again, your honor.
“The Court: Sustained.
“Q. Did he ever tell you anything about what he would do if he found any other man around his home, making love to his wife?
“Mr. Lokker: I object to that, your honor.
“The Court: Sustained.
“Q. What if anything did the doctor ever say to you about what he would do if he found any other man around his house ? •
“Mr. Lokker: Just a minute, before you answer that, I object to it, your honor.
“The Court: Sustained.”
These questions were highly improper and prejudicial. They cannot be justified by plaintiff’s claim that they were designed to show the highly confidential relationship between defendant and plaintiff’s former wife. One of them might have been overlooked. When one improper question after another is propounded tending to engender prejudice and arouse the indignation of the jury, counsel’s persistence constitutes reversible error, notwithstanding the fact that the questions are excluded by the court as quickly as they are asked.
Inasmuch as appellant has made other claims of error and there may be another trial of the issues, we might add that there was no error in permitting the- amendment of the declaration, nor was it improper to exclude testimony as to the pregnancy of plaintiff’s former wife before her marriage to him and the abortion claimed to have been performed after the marriage. It was proper to exclude testimony by plaintiff as to what his father had said to a third party about the latter’s relations with plaintiff’s former wife, inasmuch, as plaintiff was not present.
■ Other claims of error need not be discussed,’ as it is evident that they will be avoided if the case is retried.
The judgment is reversed, with costs to defendant, and the case remanded for a new trial.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Clark, J., took no part in this decision. | [
-26,
-33,
-9,
26,
-21,
-55,
-11,
7,
-13,
-19,
-40,
0,
75,
-22,
15,
0,
-7,
-21,
25,
-18,
-27,
14,
-10,
24,
55,
34,
-10,
-37,
-13,
-16,
20,
0,
0,
-9,
7,
-80,
0,
10,
-54,
-25,
52,
5,
39,
7,
-44,
-14,
-10,
10,
-35,
9,
-4,
-3,
27,
19,
8,
-48,
-16,
-12,
21,
-27,
24,
-45,
-14,
-35,
-36,
-11,
-24,
-4,
11,
-64,
34,
-80,
4,
-65,
-57,
-64,
-31,
48,
52,
-25,
13,
-69,
0,
-1,
32,
-36,
1,
-11,
-69,
8,
-8,
33,
-11,
-3,
-56,
-32,
26,
9,
51,
66,
-38,
-16,
-10,
30,
2,
52,
-10,
11,
-12,
-66,
33,
-14,
39,
-8,
-10,
-8,
1,
-48,
8,
-19,
7,
-1,
56,
36,
10,
-9,
22,
-19,
55,
-26,
45,
64,
39,
-30,
13,
-22,
18,
-53,
-3,
-18,
-43,
-7,
33,
-13,
44,
-6,
-44,
16,
-50,
-19,
-31,
-31,
-30,
38,
46,
-1,
-51,
-38,
12,
-33,
56,
6,
-49,
-58,
-18,
-20,
-34,
30,
0,
6,
72,
17,
-63,
74,
-30,
-39,
-52,
-29,
-58,
-8,
45,
41,
1,
-8,
-27,
-57,
-17,
-9,
-96,
23,
5,
-26,
12,
29,
65,
22,
-30,
43,
1,
-40,
46,
0,
-21,
15,
-4,
-11,
49,
-17,
0,
-9,
-33,
19,
-20,
-16,
-16,
-22,
28,
-22,
-67,
-4,
44,
10,
24,
52,
-67,
-37,
24,
20,
11,
0,
12,
27,
-36,
-36,
-5,
-22,
8,
28,
55,
33,
-23,
-5,
-1,
-43,
35,
-41,
-4,
39,
30,
8,
-1,
-4,
-19,
7,
-22,
-6,
-22,
-12,
29,
31,
-11,
36,
-3,
61,
-23,
-33,
3,
-2,
28,
-53,
61,
-29,
15,
40,
37,
-36,
-41,
19,
-61,
38,
-29,
-8,
-20,
35,
-21,
-52,
27,
20,
8,
-27,
6,
-18,
-6,
-40,
31,
70,
-53,
7,
7,
54,
11,
-9,
8,
0,
9,
-37,
-11,
-55,
-11,
-50,
2,
30,
50,
-29,
53,
14,
6,
33,
-7,
-41,
4,
-26,
-20,
-17,
-61,
-30,
6,
30,
-9,
34,
-18,
15,
1,
1,
-3,
-34,
-90,
62,
0,
-55,
0,
-8,
-11,
10,
-15,
15,
-29,
-1,
11,
8,
14,
-62,
-16,
0,
-33,
9,
13,
-27,
77,
-67,
30,
55,
-30,
8,
-6,
33,
22,
1,
52,
54,
8,
12,
-37,
-4,
-7,
9,
29,
21,
-35,
34,
4,
-1,
-46,
-40,
33,
16,
-70,
-19,
-17,
15,
-27,
20,
12,
51,
-26,
55,
17,
-52,
5,
37,
-17,
23,
-41,
16,
-49,
-39,
-8,
-32,
-29,
36,
71,
26,
29,
-24,
43,
-8,
5,
12,
26,
35,
-14,
5,
6,
32,
18,
-19,
-59,
-48,
17,
-62,
-13,
13,
5,
-25,
40,
4,
-13,
66,
55,
20,
28,
6,
70,
-16,
0,
24,
19,
-3,
5,
10,
15,
14,
16,
5,
53,
-45,
39,
28,
4,
23,
10,
-18,
29,
-23,
63,
-42,
-46,
-24,
-15,
13,
72,
5,
32,
46,
-26,
4,
-18,
13,
-10,
-23,
9,
8,
30,
-46,
-12,
73,
12,
9,
15,
-25,
-13,
33,
27,
45,
-67,
-3,
31,
5,
-1,
-5,
-58,
53,
32,
-5,
-3,
1,
-3,
39,
32,
51,
5,
-21,
52,
28,
-2,
35,
34,
-22,
-30,
27,
-7,
42,
40,
-38,
-14,
-11,
29,
-11,
-6,
-36,
19,
22,
1,
-44,
-2,
15,
45,
-23,
11,
2,
-29,
5,
41,
-63,
84,
2,
0,
-35,
-25,
42,
-37,
-28,
28,
-13,
26,
1,
42,
0,
-62,
24,
28,
12,
-11,
-23,
-1,
-38,
6,
-30,
25,
-29,
-39,
-41,
34,
-10,
0,
36,
-39,
-13,
13,
-54,
17,
-1,
-55,
12,
-42,
1,
22,
8,
-3,
-5,
-41,
5,
6,
-24,
3,
-25,
-12,
-16,
-31,
-12,
-10,
-6,
-22,
-33,
-53,
4,
25,
9,
4,
-6,
4,
-37,
-9,
21,
3,
25,
-61,
35,
-33,
77,
0,
40,
-3,
-10,
21,
-25,
-6,
25,
2,
-26,
-6,
-46,
-27,
18,
21,
-44,
-4,
26,
15,
8,
20,
35,
-20,
32,
-49,
-6,
10,
2,
13,
0,
-18,
17,
-37,
-3,
14,
1,
9,
-41,
-4,
-1,
-29,
-33,
-39,
-18,
45,
-16,
20,
38,
-55,
-35,
22,
-29,
5,
36,
7,
8,
-29,
47,
21,
23,
18,
8,
1,
4,
-1,
8,
33,
88,
26,
16,
-17,
-69,
-34,
9,
10,
17,
28,
-25,
-26,
0,
3,
-44,
-42,
-22,
14,
-22,
-11,
12,
-12,
-20,
32,
0,
-17,
-78,
12,
9,
20,
-34,
16,
-2,
13,
50,
3,
-77,
23,
39,
1,
-19,
44,
-64,
11,
18,
-9,
-8,
-13,
58,
-5,
6,
19,
-25,
12,
-17,
-2,
1,
40,
-28,
-36,
-12,
-3,
-14,
20,
5,
13,
-5,
-7,
18,
1,
-24,
-30,
24,
-38,
76,
-88,
-87,
-13,
7,
-7,
-20,
64,
-5,
55,
-57,
-3,
-12,
-55,
15,
56,
-16,
-15,
30,
15,
0,
-21,
-20,
53,
-16,
39,
-10,
6,
24,
14,
-46,
42,
7,
19,
16,
-6,
-12,
31,
14,
37,
30,
0,
10,
-45,
12,
0,
19,
-24,
0,
0,
23,
8,
20,
-21,
-18,
-12,
22,
11,
-46,
0,
25,
-19,
18,
54,
25,
29,
-43,
-45,
-48,
30,
-22,
-4,
27,
11,
-22,
45,
-9,
-30,
-2,
4,
23,
-19,
46,
50,
-62,
76,
-10,
29,
-52,
29,
22,
8,
26,
19,
-77,
-67,
23,
0,
-27,
-15,
-22,
-18,
-34,
1,
-18,
13,
74,
60,
-18,
-3,
19,
-69,
-38,
5,
37,
16,
-57,
-36,
39,
-59,
-31,
-70,
5,
-66,
33,
32,
8,
-51,
-49,
39,
60,
82,
12,
-33,
37,
-21,
-6,
41,
-8,
-39,
-12,
-4,
-5,
5,
2,
25,
72,
23,
-1,
22,
0,
-7,
-13,
52,
57,
3,
34,
2,
59,
4,
-12,
-21,
-2,
-16,
-41,
-9,
19,
7,
48,
64,
11,
-56,
-84,
40,
15,
-15,
25,
7,
-15,
10,
0,
-55,
1,
54,
10,
-43,
5,
7,
30,
-56,
13,
34,
-25,
-30,
9,
25,
-43,
20,
10,
-2,
40,
-6,
-28,
-2,
-33,
55,
46,
-16,
-11,
22,
-67,
7,
-48,
-69,
-12,
-19,
34,
-6,
-32,
5,
25,
-10,
3,
-44,
35,
1,
14,
-14,
6,
4,
19,
-54,
32,
26,
31,
29,
-36,
-4,
-13,
-65,
-38,
38,
-13,
-47,
-34,
53,
-5,
22,
59,
43,
-23,
48,
2,
-34,
4,
10,
-25,
23,
-54,
-14,
42,
-30,
43
] |
Fead, J.
July 15, 1930, plaintiff issued to defendant a life insurance policy, annual premium $583, with supplemental agreements for waiver of premium and for income during total and permanent disability, premium $91.50, and double indemnity in case of death by accident, premium $17.50. The life feature of the policy has become incontestable. This bill is to cancel the supplemental agreements for alleged fraud in. concealment of prior disease and medical treatment. Defendant filed a cross-bill to establish the agreements as valid and to recover instalments due thereon. Defendant had decree.
Defendant took sick November, 1930, and it is conceded he became totally disabled in January. He had been treated at the university hospital at Ann Arbor for boils from August, 1929, to June, 1930, and (time not shown) had had an operation for hemorrhoids. Neither was disclosed in his written application or medical inquiry signed by him, although he claims he told both the soliciting agent and the medical examiner of the treatments. The fact of the treatments for boils, with name of attending physician, was communicated to plaintiff before the policy was issued, through report of its agent, after further interview with defendant, but the details of the treatment, symptoms, and diagnosis did not reach the home office. - The court held there was no fraud, and, if there was, plaintiff had waived it. The latter ground is decisive, and has the merit of shortening the opinion.
On February 2, 1931, defendant notified plaintiff of his disability and was advised to wait four months, as required by the policy, before making proof of claim. He made the proof June 2d. In the interim and afterward, with defendant’s co-operation, plaintiff conducted a thorough investigation, by inspection of the hospital records, interviews with defendant’s physicians and his neighbors, and otherwise. The last item of the inquiry seems to have been a supplemental report which plaintiff’s State agent, Mr. Utter, wrote would follow his letter of July 21st. On request of the company, with disclosure of its desire to avoid the liability, Mr. Utter had given personal attention to the matter.
August 7th, with full knowledge of the facts, plaintiff wrote defendant denying liability for the disability because defendant had failed to disclose to the medical examiner the fact that he had been under treatment in 1929 and 1930, he was not in good health at the date of the application, and the company believed his condition represented the progress of his prior disease. Plaintiff further reserved all legal defenses and right to base its declination upon any other existing ground. It said nothing about canceling the contract.
Utter was the general State agent of plaintiff, with duty and authority to collect premiums. Defendant’s second premium was due July 15, 1931, with 31 days’ grace for payment. August 14th, seven days after the company had denied liability, defendant paid at Utter’s office $83.50 in cash, received credit for dividend of $109.50, and the next day executed three notes, one for $167 and two each for $166, dated July 15th and due in three, six, and nine months respectively, representing the balance of the total premium, including the premium on the disability agreement. The first two notes were paid in November and February. The last note was due April 15, 1932.
February 9th defendant commenced action at law to recover the accrued instalments for disability. March 2d plaintiff brought this suit, and a temporary injunction was issued to restrain prosecution of the action at law. April 4th defendant moved to dissolve the injunction because plaintiff had waived the alleged fraud in failing to tender back premiums collected and in collecting premiums after discovery of the facts. April 15th plaintiff tendered to defendant the first year’s premiums collected on the supplemental agreements. It refused defendant’s tender of payment of the last note due April 15th.
Plaintiff’s claim is untenable that, because the remaining note unpaid was greater than the supplemental premiums for the second year, it had accepted no premium on such agreements after discovery of the fraud. No differentiation among premiums was made in the receipts, notes, or notices of due dates of notes, including notice which Utter sent defendant of approaching maturity of the last note. Each payment and note represented a proportionate amount of each feature of the policy. The parties had no other idea of it, nor was other claim made until after litigation arose.
Utter said the handling of the premium was a “clerical mistake” of his clerks. Regardless of the company’s liability for the action of the clerks (14 R. C. L. p. 1160), the claim is not sustained by the facts. The clerks followed routine in arranging the notes and in sending out notices to the insured of their due dates. Mr. Utter knew the situation, as he was actively aiding the company in finding a defense. The record does not show that the clerks were instructed to refuse supplemental premiums from defendant. It does not show that Utter was instructed by the company to refuse such premiums. It contains no basis for defense by claim of error of clerks.
Nor are we concerned with the authority of the general State agent or his clerks to waive anything. The company itself accepted the premiums on the supplemental agreements because it received and kept not only the first instalment but also the portions represented by the three and six months’ notes, which were paid.
Plaintiff’s acceptance of the premiums after discovery of the facts was a waiver,of the claimed fraud and of the attempted cancellation, if, indeed, its letter of August 7th may be construed as a notice of rescission. Hilt v. Metropolitan Life Ins. Co., 110 Mich. 517; Lord v. National Protective Society, 129 Mich. 335; 37 C. J. p. 536; 14 R. C. L. pp. 1158, 1190.
Plaintiff complains of fees allowed by the court to medical witnesses, but we discover no abuse of discretion in that respect.
Decree affirmed, with costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
-18,
-55,
20,
26,
-5,
-6,
25,
-11,
0,
-11,
20,
-2,
95,
17,
-31,
15,
-12,
-36,
-22,
34,
-20,
-16,
9,
23,
-4,
-58,
-18,
-13,
-3,
14,
57,
30,
-16,
3,
-20,
14,
0,
-17,
-10,
-5,
0,
-28,
6,
-28,
1,
-9,
-7,
3,
18,
27,
28,
-48,
7,
-4,
-25,
-55,
16,
7,
-44,
4,
-27,
-33,
53,
-32,
24,
25,
21,
31,
-12,
21,
22,
-2,
-2,
-29,
10,
-63,
22,
-18,
13,
-54,
2,
-51,
-25,
-5,
-2,
62,
0,
47,
-1,
-11,
-43,
-48,
36,
-41,
-46,
-4,
-52,
59,
7,
16,
7,
-23,
-63,
11,
75,
29,
22,
-9,
-24,
11,
-38,
5,
0,
5,
53,
-58,
2,
36,
-33,
26,
10,
-4,
0,
-3,
-11,
49,
-16,
-4,
-15,
16,
-30,
-20,
-4,
85,
-11,
21,
3,
-24,
21,
-56,
-30,
20,
-21,
2,
15,
62,
-15,
-20,
33,
-42,
-6,
49,
7,
-8,
-5,
31,
-8,
-60,
25,
-28,
10,
-50,
14,
44,
-30,
-9,
26,
11,
49,
-11,
38,
-30,
-15,
-19,
-6,
47,
63,
-4,
-28,
18,
-42,
20,
-20,
-21,
22,
-79,
22,
-14,
68,
-33,
27,
-45,
-57,
0,
-23,
19,
2,
31,
3,
-41,
-2,
-30,
-6,
25,
21,
16,
-30,
14,
-14,
37,
3,
-7,
-4,
-57,
-21,
-4,
17,
-40,
-7,
-16,
-30,
7,
1,
2,
-25,
-48,
10,
3,
6,
-37,
-68,
18,
-9,
74,
3,
-3,
3,
17,
11,
41,
-3,
47,
0,
-7,
18,
42,
44,
-14,
-7,
-22,
8,
31,
-14,
31,
-54,
28,
36,
15,
-11,
24,
-52,
30,
0,
45,
74,
-9,
8,
10,
41,
-15,
14,
-29,
51,
-82,
-29,
-83,
-23,
16,
22,
-13,
29,
-18,
-45,
37,
6,
-48,
13,
-23,
-11,
16,
48,
-18,
-41,
-15,
43,
-18,
9,
-26,
-24,
36,
-6,
27,
11,
-1,
0,
0,
8,
-19,
19,
-14,
-28,
4,
-6,
-16,
59,
-45,
-15,
-25,
5,
-30,
9,
14,
-28,
46,
-28,
-103,
18,
-32,
-31,
40,
-72,
-5,
34,
21,
-22,
-44,
9,
-11,
8,
-16,
22,
59,
-34,
4,
-37,
53,
38,
-14,
11,
-48,
-31,
-32,
4,
-9,
-54,
20,
42,
-11,
0,
61,
1,
-2,
-19,
29,
7,
10,
-2,
-30,
-4,
57,
8,
-5,
-31,
-25,
-3,
-13,
-7,
44,
-34,
18,
18,
22,
-30,
53,
-21,
36,
-23,
-41,
-24,
6,
-69,
14,
44,
54,
0,
-25,
-27,
1,
-54,
8,
32,
27,
-14,
17,
27,
0,
15,
13,
-43,
8,
-26,
2,
5,
-68,
35,
0,
39,
-41,
4,
-44,
62,
41,
-27,
-18,
-14,
-8,
38,
8,
3,
-14,
21,
2,
-10,
-36,
52,
-24,
-43,
8,
-2,
35,
-8,
8,
-24,
13,
2,
30,
-14,
34,
53,
-51,
36,
14,
14,
20,
-42,
1,
-17,
0,
-6,
-78,
-20,
-27,
7,
-6,
-20,
12,
-18,
-1,
52,
-27,
-9,
-51,
-10,
-23,
10,
2,
-11,
-23,
-28,
-4,
-44,
0,
17,
-15,
-19,
-9,
-27,
-13,
-42,
17,
20,
-88,
-33,
9,
-13,
16,
-18,
-18,
-25,
-22,
-7,
-18,
22,
0,
15,
-30,
20,
-14,
4,
-2,
-38,
-27,
-31,
21,
45,
27,
37,
-67,
-30,
-11,
13,
35,
-16,
9,
1,
-47,
-11,
-4,
12,
-2,
36,
4,
-6,
-74,
0,
-4,
9,
17,
-43,
-47,
-6,
38,
25,
-14,
4,
-69,
8,
28,
39,
-6,
-17,
-42,
15,
56,
-5,
7,
48,
-17,
-1,
-1,
-33,
-24,
10,
-14,
-17,
19,
30,
-33,
-2,
-28,
-58,
-3,
35,
22,
-23,
5,
-25,
-20,
-15,
32,
7,
-14,
33,
-6,
-60,
69,
14,
-6,
-44,
-34,
30,
26,
4,
-9,
21,
5,
14,
-3,
-15,
12,
16,
-52,
-35,
25,
-17,
43,
-25,
-6,
29,
-58,
10,
40,
15,
-41,
34,
-6,
5,
-15,
16,
30,
6,
35,
38,
17,
41,
35,
-25,
-28,
-31,
20,
69,
-14,
42,
-25,
6,
10,
25,
59,
17,
0,
-17,
-12,
26,
28,
-2,
26,
37,
-33,
-25,
-21,
-19,
35,
-44,
-9,
-36,
-1,
-19,
11,
-27,
49,
-11,
-10,
3,
-4,
14,
70,
78,
-23,
-27,
19,
42,
23,
43,
-19,
21,
-32,
10,
-15,
38,
14,
-32,
0,
-3,
54,
9,
21,
-24,
-6,
12,
-53,
3,
21,
-77,
-60,
3,
6,
0,
-49,
38,
27,
1,
25,
-52,
19,
-46,
5,
1,
-11,
-22,
2,
-1,
-28,
-4,
14,
12,
20,
32,
-9,
-14,
-46,
-4,
-37,
-6,
13,
9,
-11,
46,
66,
12,
9,
0,
1,
-14,
-10,
-34,
18,
40,
-18,
7,
12,
39,
10,
36,
63,
-16,
-23,
8,
-3,
40,
-11,
-28,
-17,
-3,
-22,
-5,
-9,
-14,
15,
58,
0,
-34,
31,
2,
-25,
-19,
12,
-5,
18,
-60,
-15,
12,
42,
17,
-25,
20,
-7,
8,
-55,
-33,
1,
40,
0,
-15,
5,
-25,
-25,
29,
-15,
40,
-7,
-47,
-35,
31,
-5,
11,
18,
46,
-36,
-16,
19,
42,
1,
-18,
64,
-15,
18,
13,
-6,
20,
-42,
-13,
-15,
25,
30,
-30,
-12,
-7,
-56,
-25,
17,
-2,
25,
42,
0,
-23,
-38,
-28,
-15,
31,
-46,
-12,
-24,
14,
2,
22,
39,
18,
-20,
-96,
-10,
-27,
11,
11,
15,
29,
-67,
9,
-4,
16,
-23,
-9,
-94,
21,
-29,
-9,
18,
14,
-19,
32,
10,
9,
-19,
-18,
-15,
43,
-4,
-27,
30,
11,
-17,
-3,
0,
-17,
-87,
-11,
50,
8,
-31,
50,
-43,
-15,
-18,
-24,
45,
-7,
28,
43,
5,
-58,
17,
31,
24,
-9,
-16,
0,
-37,
-41,
44,
16,
2,
41,
-24,
3,
-20,
-40,
18,
5,
-22,
-20,
10,
21,
-37,
0,
-26,
-19,
47,
60,
36,
-24,
29,
23,
-39,
8,
-41,
6,
16,
7,
57,
-11,
59,
68,
22,
-11,
59,
35,
-21,
5,
-14,
-7,
1,
37,
-31,
14,
11,
-28,
5,
26,
-36,
2,
37,
5,
52,
16,
70,
-37,
26,
31,
-13,
-5,
18,
-8,
6,
-39,
-25,
37,
-22,
23,
46,
-16,
1,
32,
-24,
-44,
-20,
-39,
-49,
19,
-10,
-13,
-61,
13,
-29,
-27,
9,
-35,
8,
27,
-22,
20,
0,
15,
44,
-4,
35,
43,
-24,
33,
-8,
1,
-30,
-3,
9,
36,
58,
-15,
-13,
10,
-42,
40,
-15,
6,
40,
-20,
-9,
9,
18,
-14,
-15,
-12,
-38,
20,
8,
44,
-3
] |
McDonald, C. J.
This is an appeal from an order of the Wayne circuit court approving a receiver’s final account and- denying the plaintiff’s claim to the balance of the money in the receiver’s hands.
The defendants Sam Adler and Jennie Adler, his wife, owned vacant property in the city of Detroit on which they desired to build a large apartment house. For this purpose they borrowed $105,000 from the Bankers Trust Company secured by a trust mortgage on the premises. In connection with the mortgage a series of bonds for the full amount of the loan was issued and sold to the general public. The Bankers Trust Company was mortgagee and trustee. The principal of the loan was to be paid in instalments. On April 1, 1930, there was default in the payment of an instalment of $5,000. The mortgagors were unable to pay, so it was agreed that their tenant, the Wolverine Lease & Manage ment Company, should pay from the rents $1,200 monthly to the trustee without prejudice, however, of the trustee’s right to proceed with foreclosure. The money was to be applied in payment of taxes or on principal and interest due on the mortgage at the option of the trustee. Notwithstanding this arrangement, the default continued. The trustee began foreclosure for the unpaid instalment, and, on the sale, purchased the property for the full amount due on the instalment and received the sheriff’s deed subject to a lien for the remaining instalments amounting to $100,000. The sale was had on September 19, 1930, and on November 12, 1930, the plaintiff, Stella L. Krolik, who held a second mortgage, filed' this bill principally for the purpose of securing the appointment of a receiver to collect* the rents and income and distribute them under the direction of the court. The Bankers Trust Company, trustee and first mortgagee, appeared in the suit and consented to a receivership. Without objection the trust company was appointed, qualified, took control of the property, and continued to operate the apartment until the period of redemption expired on its instalment foreclosure on September 19,1931. Shortly after this time the plaintiff filed a petition for an accounting by the receiver and for a determination by the court that the money in the hands of the receiver belonged to her. The court denied her right to the money, and entered an order accordingly, from which she has appealed.
The first of the reasons advanced by the plaintiff in support of her claim to the money is based on the following contention, as stated in her brief:
“The mortgagee who forecloses for an instalment and sells the property subject to the remaining instalments relieves the mortgagor of all personal liability or indebtedness on the instrument.”
There seems to be no doubt as to this proposition, especially in cases where the.value of the mortgaged premises is not less than the remaining instalments. See Shermer v. Merrill, 33 Mich. 284. But that is not decisive of the question here involved. Plaintiff’s theory is that if there be no deficiency, any money in the hands of the first mortgagee after the foreclosure is a surplus, and that, as junior mortgagee, she is entitled to have it applied on her lien under the rule stated in 42 C. J. p. 318. The facts in this case do not sustain the surplus theory. The first mortgage is still in force for $100,000, the amount of the remaining instalments, and by agreement of the mortgagors followed by order of the court the money was to be used to pay principal and interest due and to become due on this mortgage and to pay taxes, of which there was about $10,000 then delinquent. The statute (3 Comp. Laws 1929, § 14426) authorizes instalment foreclosures. Unless otherwise intended, the foreclosure does not extinguish the mortgage. Anderson v. Thompson, 225 Mich. 155. In the instant case the record is clear that on foreclosure for the one instalment it was intended that the mortgage should be kept in force to secure the payment of the remaining instalments. Therefore, on failure to redeem, though title to the premises vested in the trustee, who was the purchaser, it was subject to a mortgage of $100,000. The mortgage still exists with the trustee’s rights except as to amount secured in no way abrogated by the foreclosure; but the plaintiff’s junior mortgage was wiped out. Such was the legal status of the parties when this controversy arose over the ownership and application of the money in question. When the trustee was appointed receiver it had in its hands $5,150 received from the Wolverine Lease & Management Company by agreement with the mortgagors. It is this money that the plaintiff claims belongs to her as junior mortgagee. When the court appointed the receiver he directed how this fund should be applied and in doing so made no substantial departure from the manner of application formerly agreed upon. We quote the applicable portions of the order as follows:
“It appearing to the court that a receiver should be appointed to operate and manage the premises described in said bill of complaint, and to pay out of the rent, income, and profits of said premises, taxes to he assessed and heretofore assessed, the sum found to be due upon a sale of the said premises for default in the first mortgage, on the 19th day of September, 1930, and principal and interest payments upon said first mortgage past due or to become due, on motion of Silberman & Weil, attorneys for said plaintiff.
“It is ordered that’the Bankers Trust Company of Detroit be and it is hereby appointed receiver of the premises described in said bill of complaint. * * *
“It is further ordered that the said Bankers Trust Company apply all sums now in its hands or under its control on account of said premises together with any and all rents, profits, or income by it obtained in the future (after payment of the costs of this receivership, and operating expense), first, to the payment of taxes assessed against said premises in the year 1928, thence to the redemption of said premises from the foreclosure sale, and thereafter in accordance with the directions of this court.”
There was no surplus from the foreclosure. The money was in the hands of the trustee for a special purpose by agreement with the mortgagors and by approval of the court.
The second reason advanced by the plaintiff in her claim of ownership is that the appointment was on her application and for her benefit, and consequently she has a first lien on, the funds in the hands of the receiver. In support of this contention she cites and relies on the recent case of Detroit Properties Corp. v. Detroit Hotel Co., 258 Mich. 156. The doctrine of that case is in harmony with the best current authority. There is no doubt about the rule that “the law will protect and reward the junior mortgagee, who by superior diligence qbtains the appointment of a receiver for his own benefit.”
The doctrine is excellently stated in Wiltsie on Mortgage Foreclosure (4th Ed.), §§ 580, 582, and 583.
But the doctrine does not apply to the facts in the instant case. Here the Bankers Trust Company was a party to the suit and it is very clear that the receiver was appointed for its benefit as well as for the benefit of the junior mortgagee. It is only when the appointment is limited in its benefits to the junior mortgagee that the law gives him an advantage over the first mortgagee as to the money which comes into the hands of the receiver. Here the receiver was appointed for the benefit of both lienholders and the money received from the rents and income must be distributed according to their priorities. An excerpt from the opinion of the trial court is applicable. We quote it with our approval :
“The doctrine, enunciated in many New York and New Jersey cases, and recently adopted by Michigan, that the law will protect and reward a junior mortgagee, who, by superior diligence obtains the appointment of a receiver for his own exclusive benefit, does not apply where the senior mortgagee is made a party to the receivership proceedings, and particularly where the order appointing the receiver extends benefit to the senior as well as to the junior mortgagee. The reason for this is obvious, as illustrated by the facts of our own case. When Stella Krolik prayed for the appointment of a receiver and joined the Bankers Trust Company as a party, the latter could have resisted plaintiff’s petition and could have filed a petition of its own, and could, by virtue of its superior rights, have insisted that the appointment be made upon its application rather than upon the application of «the junior mortgagee. Instead, by agreement with plaintiff,-it consented to the entry of an order which protected its rights as fully and completely as though the order had been based upon its own petition.”
There are no other questions that require discussion. We think the trial .¿court was right in holding that the money remaining in the receiver’s hands does not belong to the plaintiff. The mortgagors have not appeared in the suit and consequently are making no claim to the money. It should be applied under direction of the court for the benefit of the bondholders.
The decree is affirmed, with costs to defendant Bankers Trust Company.
Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. ’Clark and Btttzel, JJ., did not sit. | [
-3,
44,
19,
-11,
-2,
0,
13,
46,
-42,
-13,
-50,
-19,
24,
13,
-35,
0,
-22,
3,
-15,
4,
8,
-33,
-47,
-18,
-18,
-11,
44,
-66,
25,
-17,
-13,
-48,
-23,
64,
-19,
-23,
-6,
-39,
55,
-54,
10,
-20,
-32,
13,
-43,
8,
-2,
-48,
3,
-36,
-10,
-2,
35,
19,
-20,
-41,
-46,
-17,
-22,
-11,
-17,
-43,
49,
3,
0,
-40,
23,
29,
11,
-3,
6,
-17,
33,
-52,
12,
13,
22,
-6,
-18,
-56,
-11,
-76,
36,
17,
-26,
-18,
16,
-12,
-24,
41,
-40,
37,
-16,
25,
29,
6,
35,
10,
1,
41,
-19,
-12,
-22,
48,
60,
32,
-4,
-31,
-45,
17,
2,
-34,
49,
18,
-30,
-9,
-39,
39,
-3,
-22,
-12,
2,
-32,
-87,
36,
59,
-26,
-23,
26,
24,
-33,
14,
-43,
51,
-38,
20,
12,
-3,
-3,
52,
34,
8,
-15,
-42,
-11,
-47,
22,
-70,
55,
-28,
-31,
45,
23,
90,
33,
-18,
-17,
0,
-6,
0,
25,
-29,
38,
-16,
-14,
-10,
-21,
28,
16,
5,
0,
15,
-50,
-50,
-15,
-22,
-16,
-13,
-31,
-29,
-17,
48,
0,
-37,
41,
-43,
10,
-36,
55,
18,
24,
-23,
-13,
14,
-37,
18,
44,
-15,
40,
23,
20,
5,
17,
-21,
25,
-56,
17,
-12,
4,
-39,
-28,
22,
33,
25,
-10,
8,
-30,
-15,
0,
-30,
2,
-23,
-29,
39,
-9,
-30,
20,
-14,
23,
32,
-14,
-11,
1,
10,
-25,
48,
28,
31,
8,
-18,
-35,
-8,
-23,
0,
-71,
-9,
-40,
10,
27,
-12,
-53,
-54,
-4,
5,
-2,
26,
-40,
-21,
10,
-3,
17,
10,
-39,
14,
32,
-11,
-9,
-3,
-11,
-17,
17,
-14,
40,
20,
0,
-57,
-45,
-2,
-28,
-7,
-17,
-20,
-36,
-8,
6,
2,
-18,
-5,
-21,
30,
18,
0,
8,
7,
28,
-71,
-48,
-61,
35,
43,
-38,
-3,
-3,
1,
13,
0,
-20,
-23,
-12,
-29,
51,
-5,
8,
2,
76,
10,
26,
-5,
26,
16,
58,
0,
-37,
19,
45,
17,
-14,
-31,
-76,
10,
-25,
30,
-9,
17,
-5,
14,
33,
13,
42,
0,
-2,
26,
-1,
-17,
21,
-32,
8,
-34,
-16,
61,
-18,
-22,
-29,
36,
10,
30,
24,
34,
-34,
72,
40,
-10,
-19,
-4,
9,
-45,
-30,
-40,
28,
30,
24,
38,
-16,
26,
-22,
37,
-47,
34,
-18,
22,
20,
8,
36,
21,
41,
-39,
30,
-9,
-5,
1,
-52,
24,
-1,
0,
6,
-68,
-3,
-13,
-35,
-49,
-1,
21,
-39,
-6,
-50,
1,
12,
-30,
5,
15,
13,
17,
9,
-7,
-38,
18,
36,
-27,
23,
-23,
8,
-3,
7,
6,
21,
-16,
38,
13,
-19,
13,
-30,
28,
-26,
-26,
13,
38,
-24,
4,
-49,
1,
30,
5,
2,
27,
39,
-27,
-28,
-39,
14,
21,
-35,
40,
0,
21,
-32,
-18,
28,
10,
5,
-26,
50,
-69,
40,
21,
-56,
-8,
8,
-2,
6,
13,
18,
-5,
-9,
-30,
1,
36,
27,
-10,
-41,
-17,
-16,
24,
44,
61,
-39,
-17,
-15,
-54,
-48,
-7,
29,
4,
5,
72,
2,
-10,
-10,
-9,
24,
-49,
5,
-22,
47,
44,
15,
-6,
11,
-71,
-11,
23,
-18,
-30,
-15,
80,
4,
30,
-6,
18,
72,
3,
37,
6,
10,
-3,
-22,
1,
10,
25,
31,
0,
-8,
-25,
-5,
1,
-13,
-2,
-6,
6,
5,
-9,
-29,
-5,
-19,
21,
5,
51,
-27,
-40,
-16,
-19,
-8,
-70,
17,
28,
-10,
-23,
-4,
-14,
11,
32,
-52,
11,
33,
-1,
26,
-74,
-12,
-41,
-23,
-19,
9,
43,
19,
-4,
-7,
-28,
-22,
-45,
-14,
27,
-21,
6,
-2,
-40,
-18,
21,
12,
28,
-45,
75,
20,
-7,
5,
-8,
-12,
3,
-9,
43,
10,
13,
10,
-40,
-26,
-10,
-35,
-68,
0,
14,
35,
-8,
17,
-4,
-11,
10,
-1,
-5,
-6,
-19,
4,
30,
28,
38,
33,
10,
-28,
-13,
20,
-9,
11,
31,
-8,
-1,
30,
-14,
-3,
27,
-9,
1,
-12,
-4,
-53,
49,
-14,
13,
15,
-8,
-17,
-28,
28,
-21,
-44,
9,
76,
2,
13,
-41,
36,
-31,
53,
-36,
47,
18,
-40,
4,
49,
-7,
38,
42,
77,
-1,
2,
7,
59,
21,
21,
24,
-58,
56,
13,
-28,
-4,
-21,
11,
25,
28,
-4,
-5,
-12,
-7,
14,
17,
9,
-22,
-7,
-23,
10,
26,
52,
1,
-16,
24,
-31,
-8,
55,
-29,
10,
-45,
5,
2,
4,
40,
32,
36,
-27,
-2,
35,
6,
-11,
-20,
-10,
-40,
-41,
-28,
-1,
-31,
-58,
1,
-48,
-34,
15,
-16,
-30,
9,
27,
-31,
47,
-48,
23,
-10,
3,
2,
3,
5,
-12,
-39,
-58,
4,
15,
13,
-16,
15,
16,
-31,
20,
33,
-27,
-24,
-7,
-34,
11,
-4,
-21,
6,
-12,
20,
22,
8,
16,
-27,
-72,
-60,
9,
-54,
-4,
-7,
-2,
21,
6,
69,
-17,
-25,
2,
25,
-3,
30,
-7,
24,
55,
25,
-2,
-32,
-22,
-13,
-61,
-34,
54,
60,
-15,
39,
-4,
0,
35,
7,
-19,
20,
-9,
-52,
-14,
32,
14,
0,
-43,
13,
9,
-11,
56,
5,
40,
-33,
10,
-24,
33,
26,
-22,
-43,
-4,
-27,
25,
-40,
46,
24,
-2,
25,
22,
0,
-17,
34,
6,
42,
-54,
-47,
-43,
-31,
24,
5,
1,
-15,
31,
-7,
-1,
-9,
-7,
-2,
-8,
6,
-7,
-10,
27,
12,
-15,
52,
44,
-39,
-30,
14,
-19,
-58,
-27,
5,
31,
2,
31,
-33,
19,
-12,
27,
45,
-20,
52,
-9,
-21,
20,
-7,
-25,
19,
12,
45,
13,
23,
26,
-12,
48,
-47,
-27,
-1,
18,
1,
-48,
71,
-13,
-27,
-68,
-50,
-16,
10,
12,
42,
59,
-6,
35,
-34,
-19,
17,
-10,
-29,
39,
7,
-18,
12,
43,
-20,
-28,
-70,
-4,
11,
-33,
33,
25,
21,
17,
16,
22,
-26,
29,
3,
-49,
-1,
-41,
18,
-4,
-9,
-55,
-14,
4,
5,
12,
49,
-9,
-17,
-18,
0,
-38,
32,
16,
30,
46,
-28,
-74,
-43,
-7,
1,
-6,
11,
-47,
58,
-26,
17,
-21,
7,
7,
-20,
13,
-48,
-66,
-27,
-35,
27,
4,
6,
-44,
55,
-12,
19,
22,
6,
-26,
25,
-29,
-40,
15,
30,
14,
16,
19,
-19,
-20,
60,
19,
35,
3,
39,
17,
56,
0,
18,
-6,
-4,
17,
-39,
4,
-6,
4,
-10,
49,
0,
15,
4,
46,
28,
24,
26,
-24,
-15,
68
] |
Potter, J.
Plaintiff brought suit against the Globe Indemnity Company, Margaret S. Niles, and Dwight W. Ruth, administrator of the estate of Clayton M. Niles, deceased, and Caroline Niles, to recover upon a bond upon which the Globe Indemnity Company was surety in the sum of $10,000 issued to plaintiff. Prom a decree for defendants, plaintiff appeals.
Clayton M. Niles was president of plaintiff bank. He died October 28, 1930, owing the bank $13,650, represented by his four promissory notes. Defendant Globe Indemnity Company was surety upon a banker’s blanket bond to plaintiff insuring it against any dishonest act of any of its employees through theft or destruction while the property was within any of the offices of insured. The word employees included the officers, clerks, and other persons in the employ of the insured. The bond covered bills of exchange and promissory notes. When the late speculative mania subsided and prices began to descend toward normalcy, plaintiff bank appointed an executive committee, which committee insisted that Clayton M. Niles give additional security for the payment of the amount he owed the bank. There had been issued, and was outstanding and in force, a life insurance policy in the sum of $10,000 upon the life of Niles, payable to the plaintiff hank as creditor. It is said to have been the agreement between the executive committee of the bank and Niles that plaintiff: was to surrender and deliver this life insurance policy to Niles, and Niles and wife were to make, execute, and deliver a promissory note and real estate mortgage collateral thereto running to the bank, in consideration of the surrender by the bank to Niles of such life insurance policy. The mortgage is said to have been executed by Niles and wife to the bank as mortgagee. The important question is whether there was delivery of the mortgage to the bank, so as to make it a valid, effective instrument as against the property of Mrs. Niles, widow of Clayton M. Niles, defendant.
On behalf of defendant, widow of deceased, the testimony offered by plaintiff’s officers and employees to show execution and delivery of the note and mortgage was objected to as being equally within the knowledge of the deceased (3 Comp. Laws 1929, § 14219), and it is claimed without the testimony of these officers and agents to show execution and delivery such delivery is not shown. Incident to the question of delivery is that of whether deceased, Clayton M. Niles, unlawfully took the note and mortgage executed by himself’ and wife from the bank so as to bring his actions within the ternas of the policy issued by Globe Indemnity Company to plaintiff. If the note and mortgage were not delivered to the bank, if they were not presently valid security, effective against Niles and wife, then that Niles had the mortgage and note in his possession at his death is no evidence he unlawfully took them from the bank. If, as contended by defendants, the note and mortgage were executed and taken to the bank but were not actually delivered to take effect but the transaction was held awaiting the examination of the abstract of the mortgaged property, passing upon the title by the attorney for the bank, sur render and delivery to Niles of the $10,000 life insurance policy hy. the banlc, assignment of the insurance on the buildings mortgaged to the bank, and the note and mortgage were not in fact delivered by Niles to become presently operative, and were not intended to be so delivered until things were done which at the time of his death were not done, then his acts in taking the mortgage to his home from the bank was not within the terms of the policy. Defendants contend there was no delivery of the note and mortgage; that Niles’ indebtedness to the bank was in process of settlement; the bank had not passed upon the abstract of title to the real estate mortgaged; had not made examination of the title; had not surrendered and delivered to Niles the $10,000 insurance policy; Niles and wife had not assigned the insurance on the buildings mortgaged to the bank; no surrender of the notes given by Niles to the bank was made; no indorsement of payment made thereon; no change was made in the books of the bank in relation to the note and mortgage, and the transaction was in suspense and not completed. It is contended the mortgage was without consideration.
There is no legal objection to the making by the wife of a mortgage to secure her husband’s debts. Watson v. Thurber, 11 Mich. 457; DeVries v. Conklin, 22 Mich. 255; Damon v. Deeves, 57 Mich. 247. The wife may join in a mortgage on property held by her as a tenant by the entirety with her husband to secure his debt (People’s Building & Loan Ass’n v. Billing, 104 Mich. 186), and a mortgage of her own property to secure her husband’s debt is supported by sufficient consideration. Kieldsen v. Blodgett, 113 Mich. 655. Plaintiff claims the bank’s officers and agents were competent to testify to delivery of the note and mortgage by Niles, deceased, to tbe bank, and Ms widow may not object to the reception of such testimony and its consideration by the court. The mortgage covered real property held by husband and wife as tenants by the entirety.
Upon hearing,' the testimony of plaintiff’s officers and agents was objected to as being excluded by the statute, 3 Comp. Laws 1929, § 14219, relating to the testimony of parties equally within the knowledge of the deceased.
It is contended the real estate mortgaged, having been held by decedent and his wife as tenants by the entirety, she as widow did not take title to it under the statutes of descent (3 Comp. Laws 1929, § 13440), but by the original conveyance to her husband and herself in his lifetime,- his death, and by operation of law, independent of her heirship or rights as a widow of the deceased under the statutes of descent.
Tenants by the entirety hold under the instrument by which the tenancy was created, and, upon the death of one, the title to real estate held by the parties as such tenants devolves upon the survivor, not by the statutes of descent but by the death of the other tenant and by operation of law. Attorney General v. Clark, 222 Mass. 291 (110 N. E. 299, L. R. A. 1916C, 679, Ann. Cas. 1917B, 119); Bassler v. Rewodlinski, 130 Wis. 26 (109 N. W. 1032, 7 L. R. A. [N. S.] 701); Estate of Harris, 169 Cal. 725 (147 Pac. 967).
The statute relied upon as originally enacted was designed to afford protection to estates against the knavery and perjury of dishonest claimants (Kimball v. Kimball, 16 Mich. 211); fraud and injustice (Penny v. Croul, 87 Mich. 15 [13 L. R. A. 83]); protect the estate of deceased persons against claims which depended in whole or in part upon testimony of a party wMch could not be refuted by the testi mony of deceased (McHugh v. Dowd’s Estate, 86 Mich. 412); prevent a living party from obtaining an unequal advantage from his own testimony as to matters known only to himself and the deceased, and of which the deceased party could no longer speak (Wright v. Wilson, 17 Mich. 192; Chambers v. Hill, 34 Mich. 523); prevent fraud and false swearing whereby estates became unjustly depleted in cases where no one on the part of the estate except the deceased had knowledge of the facts necessary to refute the unjust claim attempted-to be enforced against it. Brown v. Bell, 58 Mich. 58. The statute does not permit one party to give in evidence his version of a transaction within the personal knowledge of both when death has precluded the other party from being heard. Kimball v. Kimball, 16 Mich. 211.
The statute now provides:
“No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.” 3 Comp. Laws 1929, §14219.
This provision was inserted in 1901 (Act No. 239, Pub. Acts 1901). Many contracts were made by agents. "When the party who acted for himself died, the opposite party was prohibited from testifying, but his agent could testify against the dead man’s estate and the same harm was done which the passage of the general section sought to avoid. In order to carry out. the purpose of the general section, this provision was inserted. Hocking Valley Products Co. v. Tackett’s Estate, 219 Mich. 623.
It is said that Mrs. Niles is not defending as heir, assign, devisee, legatee, or personal representative of deceased, and consequently the statute (3 Comp. Laws 1929, § 14219) may not be invoked by her to exclude the testimony of plaintiff’s agents. Plaintiff is a corporation. A corporation may act only through its officers and agents. Plaintiff bank, if the note or mortgage were delivered by Clayton M. Niles in his lifetime, is an assign of decedent and his wife. Newton v. Freeman, 213 Mich. 673.
The agents of the bank testified in relation to the execution and delivery of the mortgage. Such delivery was necessary in making the contract if one was made. If the note and mortgage were never delivered to and accepted by the bank, they never became valid securities. It is said Mrs. Niles, widow of decedent, is not a legal representative of her husband, Clayton M. Niles, is not claiming the property alleged to have been mortgaged as his heir; she did not take title to this real estate by the statutes of descent, but took title by the conveyance to herself and husband, his death, and by operation of law, and hence she may not invoke the shield of the statute.
The language of the clause above quoted names legal representatives or heirs only, though it may be that “legal representatives” is a sufficiently broad term to cover assigns, devisees, legatees, or personal representatives. In any event, the term “legal representatives” is used and not the term “personal representatives” as in the succeeding clause. The important question is whether Mrs. Niles, widow of decedent, is the legal representative of Clayton M. Niles, deceased, in relation to the property mortgaged.
“The term ‘legal representatives’ is not necessarily restricted to the personal representatives of one deceased, but is sufficiently broad to cover all persons who, with respect to his property, stand in his place and represent his interests, whether transferred to them by his act or by operation of law.” New York Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591 (6 Sup. Ct. 877).
The term “legal representatives,” as used in 3 Comp. Laws 1929, § 14219, above quoted, is sufficiently broad to cover Mrs. Niles, the successor in title to the property alleged to have been mortgaged by decedent and herself. She acquired whatever interest Clayton M. Niles may have had in the property by means of the conveyance by which she and her husband acquired title as tenants by the entirety, his death, and by operation of law.
One clause of the statute (3 Comp. Laws 1929, § 14219), prohibits the opposite party, if examined as a witness in his own behalf, from testifying at all, etc. The clause under, consideration prescribes a rule of competency and declares no person who shall have acted as agent in the making or continuing of the contract with any person who may have died shall he a competent witness in any suit involving such contract.
It is contended the testimony of plaintiff’s officers and agents, though not admissible against Mrs. Niles, is admissible against the Globe Indemnity Company. This construction of the Michigan statute is not permissible. The first clause of the statute declares the opposite party may not testify at all under the circumstances specified by the statute. The clause under consideration prescribes a rule of competency and declares the agents incompetent to testify. If a witness is incompetent to testify, he may not testify at all, and such witnesses, if incompetent to testify against Mrs. Niles, a defendant, are incompetent to testify against any other party defendant.
The sole testimony bearing upon the execution and delivery of the mortgage comes from plaintiff’s cashier, attorney, and members of the executive committee. No other witnesses were sworn except one who testified to the value of the real estate mortgaged, and Mrs. Niles, who was called for examination by plaintiff and whose testimony was objected to. Eliminating the testimony of plaintiff’s agents, there is no testimony establishing that a valid mortgage was made, executed, and delivered by Clayton M. Niles and wife to plaintiff, or that such mortgage was accepted by the bank. There being no competent evidence to' sustain the material allegations in the bill of complaint, the decree of the trial court dismissing it is affirmed, with costs.
McDonald, C. J., and Clark, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
-22,
-55,
-2,
-52,
51,
44,
5,
10,
65,
-36,
0,
-5,
-12,
56,
-54,
4,
-21,
-32,
45,
6,
-3,
-34,
-22,
-42,
-13,
1,
-14,
-47,
8,
-4,
15,
57,
-14,
29,
-24,
-6,
-36,
-17,
-42,
-76,
5,
-41,
22,
-19,
14,
35,
21,
-40,
9,
-52,
14,
-14,
43,
4,
-31,
-21,
37,
33,
7,
41,
12,
-39,
45,
-56,
-39,
-32,
13,
48,
36,
11,
24,
-26,
17,
22,
-2,
-18,
8,
2,
-62,
-90,
-7,
-24,
16,
-2,
1,
24,
-19,
31,
-8,
76,
-22,
26,
11,
-71,
-52,
-23,
4,
47,
-38,
63,
-29,
-55,
-40,
49,
2,
44,
20,
-72,
-19,
-7,
-30,
47,
12,
29,
16,
6,
-20,
8,
9,
52,
6,
-3,
26,
-58,
-24,
74,
-43,
-21,
-11,
-8,
0,
27,
-9,
66,
-3,
0,
43,
-41,
16,
-32,
31,
2,
-39,
-54,
-70,
40,
-12,
4,
-52,
-16,
-70,
22,
20,
37,
7,
-13,
62,
-56,
44,
-52,
-5,
-17,
24,
2,
-85,
-40,
-18,
1,
2,
-19,
22,
2,
-11,
31,
10,
26,
-35,
-15,
2,
51,
-7,
29,
-33,
8,
3,
-57,
-5,
-23,
38,
68,
23,
-49,
-17,
16,
-69,
8,
-18,
-31,
29,
1,
53,
-42,
-53,
11,
8,
13,
17,
1,
20,
-22,
9,
62,
1,
-21,
-51,
28,
-40,
-27,
0,
-18,
-33,
17,
-24,
26,
-51,
-81,
-2,
-23,
18,
-12,
-21,
-16,
-56,
29,
2,
42,
-4,
1,
40,
43,
19,
-39,
-8,
0,
-14,
1,
-11,
-6,
-28,
-1,
-19,
9,
29,
40,
-21,
78,
-24,
-1,
16,
-33,
-36,
36,
-7,
25,
5,
-27,
-2,
25,
63,
18,
-8,
-8,
38,
37,
13,
-55,
-12,
-3,
3,
-37,
33,
-15,
-10,
29,
34,
-27,
55,
16,
-38,
-50,
-15,
-9,
19,
-41,
63,
49,
-12,
-6,
54,
-5,
-16,
-16,
24,
-11,
6,
18,
1,
-2,
-42,
-27,
17,
41,
-48,
-17,
57,
17,
12,
-8,
53,
-63,
-7,
31,
-16,
46,
-23,
-20,
-1,
-2,
4,
45,
-37,
5,
-3,
-63,
-64,
-48,
5,
-32,
3,
-33,
-31,
63,
10,
-14,
-3,
19,
55,
-7,
-50,
6,
-56,
-28,
-10,
-29,
-70,
34,
34,
19,
-57,
80,
-3,
-5,
34,
-1,
7,
-16,
30,
-15,
26,
40,
45,
42,
-23,
-88,
7,
7,
-63,
61,
-27,
16,
25,
31,
43,
-11,
17,
0,
-13,
-10,
1,
-4,
-60,
39,
4,
51,
-46,
-12,
-2,
-20,
-9,
-35,
39,
45,
-48,
-79,
-15,
21,
0,
-36,
-40,
-10,
-7,
3,
37,
0,
1,
-14,
48,
-31,
36,
21,
37,
-37,
23,
-9,
-16,
-34,
-20,
67,
-41,
-17,
-12,
35,
3,
20,
30,
-27,
-45,
9,
33,
38,
59,
2,
40,
13,
2,
8,
0,
-37,
60,
-1,
-32,
59,
10,
51,
-54,
-10,
-21,
70,
5,
-19,
0,
-22,
98,
44,
8,
16,
-20,
16,
31,
-25,
31,
-4,
15,
4,
-57,
-11,
-18,
-48,
-42,
36,
-17,
81,
16,
44,
-19,
-8,
18,
-18,
-6,
-21,
-59,
-43,
28,
14,
-4,
32,
-61,
3,
-51,
-56,
5,
-42,
-33,
4,
-32,
17,
0,
-39,
-17,
25,
52,
-38,
11,
61,
34,
59,
-2,
-19,
16,
5,
-12,
15,
3,
45,
-4,
-39,
19,
65,
61,
5,
-40,
-7,
-43,
-6,
-58,
10,
19,
3,
-4,
-15,
-44,
51,
4,
11,
-36,
-28,
-6,
-6,
-22,
-20,
-41,
-37,
22,
-10,
0,
23,
24,
-6,
16,
21,
-16,
0,
-6,
-11,
-2,
-2,
62,
-6,
-12,
-81,
-88,
5,
13,
4,
-45,
3,
7,
-15,
31,
-66,
-23,
-69,
-31,
-55,
-6,
79,
45,
8,
-49,
-12,
-12,
8,
18,
16,
23,
-8,
-4,
-29,
25,
27,
-16,
-19,
-10,
-46,
-30,
-37,
-3,
-7,
15,
-15,
27,
-55,
5,
7,
-16,
15,
-22,
-12,
-19,
-8,
18,
13,
24,
61,
-8,
19,
-31,
-15,
-19,
18,
12,
-69,
-5,
-13,
-28,
-24,
13,
70,
-10,
-21,
12,
23,
25,
-7,
-49,
17,
13,
-62,
80,
-53,
-35,
59,
4,
-15,
-19,
17,
13,
10,
-31,
13,
-27,
-17,
-9,
-1,
25,
-3,
88,
17,
-25,
-4,
33,
-27,
17,
17,
-7,
2,
-14,
70,
0,
19,
-44,
21,
18,
37,
20,
31,
42,
17,
-42,
9,
-5,
-25,
-23,
-16,
24,
9,
94,
-46,
-2,
-35,
11,
1,
-45,
37,
-20,
-55,
-53,
24,
-3,
39,
25,
-13,
-17,
-25,
-8,
16,
40,
32,
44,
5,
8,
-48,
15,
9,
-27,
6,
15,
32,
-34,
-37,
12,
-22,
-74,
26,
-42,
23,
32,
42,
-7,
-36,
-30,
17,
58,
42,
-26,
-51,
-26,
36,
74,
-6,
16,
23,
-39,
-60,
9,
-71,
-16,
-3,
5,
19,
-67,
14,
51,
-58,
-18,
62,
11,
-14,
6,
-35,
9,
10,
-14,
12,
5,
-7,
7,
-35,
-11,
-14,
25,
-9,
-2,
-18,
47,
-8,
22,
22,
20,
27,
1,
31,
23,
-33,
-43,
6,
38,
34,
0,
-24,
-41,
0,
-75,
80,
21,
12,
17,
-22,
55,
9,
-4,
-63,
38,
19,
-14,
74,
-41,
2,
-51,
-10,
-76,
32,
22,
30,
-10,
23,
-60,
-29,
-78,
-64,
-1,
-5,
1,
-7,
12,
12,
70,
9,
25,
-42,
7,
-24,
-42,
0,
33,
-25,
-26,
-41,
17,
-20,
35,
-36,
39,
53,
-36,
-25,
54,
-36,
59,
-4,
17,
-35,
-59,
6,
71,
25,
-25,
-2,
4,
-2,
22,
46,
-4,
33,
35,
27,
33,
-11,
61,
-2,
-4,
-14,
9,
41,
-23,
-58,
83,
31,
19,
48,
-33,
-42,
3,
33,
2,
-10,
-5,
-47,
13,
7,
13,
-28,
-15,
-15,
-63,
4,
0,
12,
-44,
-4,
53,
2,
-35,
-1,
-24,
54,
37,
70,
-11,
90,
-30,
-32,
-15,
2,
0,
-11,
46,
63,
44,
30,
-5,
77,
-7,
45,
19,
-34,
8,
1,
-63,
9,
53,
5,
-8,
-30,
11,
27,
55,
0,
-5,
11,
-55,
-45,
71,
73,
-31,
-19,
-52,
-11,
11,
-20,
36,
41,
-30,
-38,
19,
42,
66,
-4,
-20,
2,
22,
-42,
6,
-92,
-63,
-45,
37,
-23,
7,
-27,
17,
-27,
-29,
77,
-56,
-11,
53,
-33,
15,
-25,
7,
-8,
0,
36,
25,
-12,
14,
23,
-39,
-16,
-14,
6,
52,
8,
-11,
-8,
2,
6,
43,
-27,
-24,
-75,
40,
9,
-14,
34,
-12,
12,
23,
-48,
45,
-25,
-35,
58
] |
Fead, J.
The action is replevin to recover possession of a monoveyor, sold by plaintiff to defendant on instalment payments. The relevant portion of the contract of sale is:
“Payment shall be made according to the terms of this proposal. Upon default of the purchaser in maid rig any payment upon any account or note, or in carrying out any of the provisions of this proposal the entire purchase price shall at once, at the option of the Galion Iron Works & Manfg. Company, become due and payable.
“The title of all material covered by this proposal, until fully paid for in cash, at the time and in manner herein provided for, and any notes or acceptances given shall have been paid in full in cash at the agreed rate of interest, shall be and remain in the Galion Iron Works & Manfg. Company, and such material shall be and remain, and shall be considered as, personal property, notwithstanding the mode or manner in which such personal property shall be annexed or attached to the realty; and in the event of any default of the purchaser the Galion Iron Works & Manfg. Company may at once, without due process of law, take possession of any material covered by this proposal and remove same from the premisés as'and for its property. In the event of such repossession, all sums paid by- the purchasers are to be considered as rental for use of the aforementioned property and as reimbursement to the G-alion Iron Works & Manfg. Company for the cost of dismantling and removing said property. It is further agreed that the Gralion Iron Works & Manfg. Company shall have the right to avail themselves at their option of the local lien laws in lieu of the right given in this paragraph. ’ ’
About a year prior to the commencement of this suit plaintiff had brought action in assumpsit to recover the whole of the unpaid purchase price. Later it dismissed the suit and commenced this action. Plaintiff had judgment.
The questions are whether the contract of sale is a conditional sales contract or chattel mortgage, and, if the former, whether commencement of the assumpsit action bars recovery in replevin.
The court held the instrument a chattel mortgage solely because of the acceleration clause, on the authority of Heyman Co. v. Buck, 221 Mich. 225; Thomas Spacing Machine Co. v. Security Trust Co., 223 Mich. 164.
Perhaps it would be well to state categorically that the acceleration clause alone is not sufficient to transform an instrument, otherwise a conditional sales contract, into a chattel mortgage. At one time confusion seems to have existed in the profession upon the position of the court as to the tests to be applied in ascertaining the character of the instrument, and the court, recognizing the situation, took occasion, in Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15; Federal Commercial & Savings Bank v. International Clay Machinery Co., 230 Mich. 33 (43 A. L. R. 1245); Nelson v. Viergiver, 230 Mich. 38, to clarify its rulings. It fairly may be said that, with those opinions, the court made a new start on the law of conditional sales.
The rights and remedies reserved by a vendor are of much importance in determining the character of the sale. Under a conditional sales contract, the vendor may reserve the option to recover the purchase price or to reclaim the property, but he cannot do both. At bar, the vendor reserved such option and no more. His right to retake the property was “as and for its property,” i. e., as owner, and payments made were not to be credited on the purchase price as in case of chattel mortgage but were to be considered as rental and reimbursement for expense. No provision was made for sale of repossessed property with pursuit of personal liability for a deficiency. The instrument was a conditional sales contract under the above opinions and In re Petition of Hume, 260 Mich. 555.
The provision for lien was not inconsistent with a conditional sales agreement. F. M. Sibley Lumber Co. v. Wayne Circuit Judge, 243 Mich. 483, 487; Warner Elevator Manfg. Co. v. Capitol Investment Building & Loan Ass’n, 127 Mich. 323 (89 Am. St. Rep. 473).
By commencing suit in assumpsit to recover the purchase price, plaintiff made a binding election to, and did, transfer title to the defendant.
In Nelson v. Viergiver, supra, Mr. Justice Sharpe said:
“If he (the seller) elects to retake the property, and does so, he cannot recover any part of the contract price by suit. On the other hand, if he brings suit to recover the debt due him, he cannot thereafter assert his right to retake possession.”
See, also, H. G. Vogel Co. v. Original Cabinet Corp., 252 Mich. 129; Forgan v. Blythe, 258 Mich. 689, 694.
Title having passed to defendant, and plaintiff having no lien upon the property, the latter is not entitled to possession.
Judgment reversed, and cause remanded for entry of judgment for defendant, with costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
-21,
-17,
-57,
43,
-5,
33,
19,
0,
28,
24,
2,
10,
40,
-22,
-40,
23,
4,
-36,
-26,
40,
23,
-56,
-7,
-39,
6,
-20,
-8,
-29,
10,
21,
-48,
-9,
-54,
57,
-40,
27,
-27,
15,
4,
-42,
32,
58,
-5,
-6,
5,
35,
-15,
-59,
11,
-17,
27,
-29,
-4,
-37,
-35,
-39,
-41,
5,
-35,
26,
0,
-47,
-4,
-15,
-6,
3,
51,
27,
9,
-27,
-16,
1,
-11,
-2,
22,
14,
4,
1,
19,
-44,
-11,
-52,
21,
-49,
14,
8,
-3,
22,
-34,
-19,
-50,
6,
3,
32,
-27,
36,
9,
20,
0,
14,
7,
-9,
-2,
22,
13,
-20,
-13,
-78,
-4,
-8,
17,
-26,
23,
-68,
18,
-6,
-4,
-39,
35,
-32,
27,
-2,
10,
0,
-20,
7,
4,
-63,
9,
22,
25,
12,
-54,
33,
-2,
-3,
22,
31,
10,
-14,
0,
-39,
9,
-49,
-11,
21,
57,
-29,
5,
0,
-43,
6,
1,
3,
13,
2,
34,
12,
5,
-32,
38,
-32,
-29,
5,
-44,
-23,
-20,
-15,
5,
39,
23,
-39,
3,
-43,
-15,
-2,
-1,
10,
-22,
-19,
-6,
-4,
-19,
15,
30,
-35,
16,
5,
62,
7,
30,
-26,
-21,
6,
-57,
47,
-24,
27,
-32,
-22,
-20,
-30,
-1,
-25,
1,
-28,
0,
0,
-22,
2,
-32,
56,
-78,
-1,
-71,
-3,
34,
19,
-10,
6,
-7,
-15,
-46,
18,
-25,
-17,
22,
17,
99,
-10,
-15,
-4,
27,
-21,
-54,
-27,
17,
17,
4,
-9,
12,
-3,
-11,
-25,
-35,
-53,
-23,
-29,
16,
15,
-24,
-42,
-48,
46,
-3,
-27,
-9,
0,
-22,
-10,
9,
47,
-19,
-7,
-11,
7,
25,
-20,
-31,
18,
3,
7,
20,
80,
2,
3,
-23,
74,
-2,
1,
-10,
-3,
-12,
-23,
-39,
21,
0,
53,
-37,
-19,
30,
-26,
24,
-25,
7,
47,
-24,
-16,
9,
18,
9,
-40,
19,
15,
-22,
33,
-7,
6,
13,
-44,
-8,
10,
-15,
4,
16,
-9,
-7,
19,
30,
-9,
27,
-25,
34,
-15,
47,
-80,
20,
-65,
-32,
39,
-8,
-52,
7,
2,
-36,
-11,
30,
-16,
-40,
15,
8,
49,
30,
-41,
22,
13,
-23,
-53,
-10,
39,
-45,
0,
-49,
51,
37,
10,
-18,
54,
-20,
28,
49,
40,
-11,
-53,
0,
7,
-38,
2,
-2,
34,
23,
23,
-31,
-35,
-76,
-25,
-41,
-58,
-25,
13,
14,
-31,
20,
-16,
23,
-30,
-38,
35,
-57,
0,
-18,
-5,
36,
-1,
1,
-58,
27,
-47,
-6,
-21,
35,
29,
-34,
-32,
-55,
-23,
23,
5,
3,
20,
21,
-54,
-46,
20,
-31,
-20,
42,
10,
16,
17,
24,
-13,
-2,
1,
14,
-47,
-6,
-49,
-35,
48,
-54,
-12,
28,
-6,
52,
9,
-48,
-17,
-14,
35,
-15,
9,
-45,
29,
51,
6,
-60,
64,
32,
1,
-26,
9,
24,
-42,
59,
66,
12,
-12,
12,
-49,
31,
-42,
72,
14,
28,
-25,
0,
-8,
0,
11,
-20,
14,
59,
-8,
5,
14,
31,
-4,
-11,
24,
0,
56,
9,
26,
-24,
-31,
-36,
-28,
19,
17,
14,
-78,
53,
14,
-19,
-29,
-2,
17,
26,
22,
5,
-24,
-11,
21,
0,
23,
2,
-41,
-11,
26,
-35,
3,
45,
-3,
33,
15,
29,
-33,
24,
35,
23,
-1,
-49,
22,
-4,
-19,
-26,
45,
14,
9,
9,
-39,
-7,
17,
-46,
-12,
-6,
4,
12,
-4,
-77,
65,
-3,
42,
-42,
40,
-14,
9,
-31,
30,
-53,
-50,
43,
67,
41,
38,
32,
11,
27,
-7,
-58,
49,
25,
1,
71,
-34,
-17,
-37,
-7,
-13,
-45,
12,
18,
14,
22,
-54,
6,
-70,
24,
-17,
-32,
18,
13,
-52,
8,
52,
-14,
30,
17,
10,
-39,
27,
22,
-4,
-39,
-1,
18,
20,
-33,
25,
-26,
-17,
-62,
-38,
3,
-30,
30,
-23,
-13,
21,
30,
-11,
-19,
-1,
-25,
17,
51,
-21,
30,
44,
17,
30,
-8,
22,
-11,
3,
15,
-38,
-52,
17,
11,
-17,
-12,
-11,
-36,
38,
39,
-20,
-5,
-78,
-13,
-3,
-20,
-13,
-5,
-11,
-7,
-5,
30,
-3,
-33,
13,
20,
26,
53,
13,
-13,
9,
17,
-53,
35,
-30,
5,
30,
22,
14,
29,
-62,
15,
-10,
6,
12,
46,
4,
2,
51,
-5,
32,
-16,
16,
-47,
-32,
24,
-2,
-48,
-27,
75,
-29,
0,
-14,
30,
3,
-20,
-29,
-26,
25,
62,
18,
-16,
44,
-2,
22,
2,
37,
-36,
14,
-44,
35,
43,
-26,
49,
6,
-9,
-3,
44,
38,
-35,
1,
-22,
-32,
13,
-29,
28,
-63,
27,
2,
-11,
7,
-30,
2,
-26,
-30,
-49,
46,
-16,
19,
29,
5,
14,
2,
-18,
-5,
9,
17,
43,
-37,
3,
17,
16,
-18,
12,
-8,
-22,
34,
-15,
-19,
-30,
-32,
-39,
45,
19,
34,
-11,
19,
47,
20,
-22,
-47,
-5,
-42,
-1,
21,
9,
-9,
30,
-1,
-8,
8,
70,
9,
4,
-42,
17,
30,
-51,
-56,
24,
-25,
20,
12,
16,
0,
-18,
-8,
-39,
0,
32,
21,
21,
-38,
-36,
-10,
-59,
11,
69,
4,
11,
23,
-28,
-39,
-35,
-65,
-14,
-37,
1,
24,
-14,
35,
24,
23,
-28,
20,
-47,
18,
-48,
-18,
1,
3,
-11,
33,
61,
-27,
-29,
-7,
7,
3,
3,
-22,
16,
-34,
-49,
-49,
10,
6,
23,
-10,
-45,
29,
-27,
-11,
6,
4,
9,
-11,
0,
44,
-9,
28,
19,
-47,
40,
21,
-48,
9,
81,
-28,
-44,
36,
13,
-2,
1,
33,
-44,
43,
66,
14,
-4,
-11,
2,
-14,
-8,
-1,
-53,
0,
-1,
45,
27,
-27,
-21,
64,
35,
1,
-18,
27,
18,
8,
61,
-60,
13,
-3,
12,
14,
33,
26,
61,
19,
-7,
-14,
1,
28,
46,
16,
21,
24,
11,
43,
40,
-53,
43,
38,
39,
-46,
-35,
-63,
5,
-50,
9,
10,
-21,
26,
10,
27,
58,
22,
54,
-29,
27,
-58,
-44,
70,
-6,
-23,
-38,
-28,
1,
5,
28,
-6,
46,
-6,
-41,
35,
85,
24,
0,
14,
2,
-15,
-42,
-51,
30,
48,
-10,
-54,
12,
32,
16,
22,
-1,
-35,
30,
18,
5,
-16,
-28,
11,
63,
-14,
-33,
9,
-10,
-69,
-27,
27,
-16,
-23,
3,
-15,
4,
-65,
24,
-4,
35,
23,
-3,
-20,
29,
21,
42,
-7,
-12,
-12,
-8,
-47,
-11,
-18,
34,
29,
17,
-56,
-45,
-11,
40,
15,
-21,
12,
-72,
52,
13,
8,
68,
18,
-7,
52
] |
McDonald, C. J.
The plaintiff received a verdict and judgment for $8,750 in the circuit court of Ottawa county in an action against the defendant, who is a physician,.for alleged malpractice in reducing and treating a fractured arm.
On October 24, 1931, the plaintiff, Anthony Van Der Bie, then a child three years of age, fell, and fractured his arm just above the elbow joint. He was taken to the hospital at Holland, where the defendant, who had been called to attend him, reduced the fracture, after which he wound the forearm with adhesive tape and drew it back on the upper arm, to which it was taped for the purpose of holding it in position. A padding of gauze about half an inch thick was placed in the elbow joint to protect the flesh. A piece of gauze was then wound lightly about the wrist and carried up around the neck to sustain the arm across the chest. The forearm was left in this flexed position for about two weeks. After the fracture was reduced the boy was taken home. It is his claim that the arm became greatly swollen and discolored; that it caused him intense pain; that sores developed under the gauze on the wrist and forearm, from which pus began to ooze; that the defendant paid no attention to the sores, and did nothing to relieve his suffering; that on November 9th the arm was released and the bandages removed; that at this time, on the advice of Dr. Hodgen, a bone specialist of Grand Rapids, the defendant’s method of sustaining the arm in a rigid position across the chest was abandoned, and an aluminum splint was applied; that the defendant continued to attend the case until January 13th, when the boy was taken to the university hospital at Ann Arbor, where he was treated for several weeks by a bone and joint specialist; that a permanent paralysis of the fingers and hand, known as Volkman’s contracture, developed.
The plaintiff does not claim that the fracture was not properly reduced. The claim is that the malpractice consists in flexing the forearm so acutely as to impair the circulation, in tying* the bandage around the wrist too tightly and leaving it for such a length of time that sores developed which ate into the flesh and injured the ulnar nerve, and in neglecting to discover and treat the sores when the pus stains first appeared on the bandages.
The defendant contends that he properly reduced the fracture; that in flexing the forearm in order to hold the bones in place he followed a method of practice approved by physicians and surgeons; that he did not neglect the sores, but properly dressed them with septic dressings; that the present condition of the boy’s arm is due to an injury to the brachial artery at the elbow joint; that the injury to the artery was caused by the fracture resulting in ail impairment of tlie circulation and the consequent development of Volkman’s contracture, a condition which could not have been prevented by the most skillful treatment.
These issues were submitted to the jury in a charge of which there is no complaint. Judgment was entered on a verdict for the plaintiff. The defendant has appealed, and alleges as cause,, for appeal that the court erred in permitting Dr. Kopprasch, a witness for the plaintiff; to answer the following question on direct examination by Mr. Hoffman:
“Q. Assuming the treatment of this boy’s arm after it was broken to have been set forth in that hypothetical question, what in your opinion would that treatment result in, what would be the result of that kind of treatment?”
In allowing an answer to this question it is said by the defendant that the doctor was permitted to invade the province of the jury in violation of the rule of evidence enunciated by this court in DeHaan v. Winter, 258 Mich. 293, and in DeGroot v. Winter, 261 Mich. 660. We think the question was proper. In the instant case two causes for.the boy’s present condition are alleged. The defendant claims that it was due to an injury to an artery by the fracture. Plaintiff claims it is due to the acute flexion of the forearm for too long a period of timé. The doctor was not asked and did not undertake to say which of these claims was correct. He merely testified that acute flexing of the arm under the conditions as claimed by the plaintiff would produce certain results. If asked, he probably would have testified that breaking of the artery at the point of fracture would produce the same results. He was not asked what did produce the result. That was for the jury to determine. It was proper for him to testify that certain conditions would, might, or could produce certain results. The court did not err in permitting the question to be answered.
The second alleged error relates to the cross-examination of defendant’s medical experts. The examination of Dr. Walker illustrates defendant’s contention. He was asked by plaintiff’s counsel:
“Q. Have you any particular authority in mind about that proposition, about how a fracture of this kind should be treated?
“A. Yes, Roberts.
“Q. And what others ?
“A. Kelly.
“Q. What about Scudder?
“A. Well, Scudder says practically this, only he allows you to use splints. Just the treatment I have named. I have read Scudder’s latest work. * * *
“Q. I am asking you if Scudder does not say when there is swelling and discoloration there, to take the arm down?
“A. That is a different thing.
“Q. No; doesn’t he say that?”
Objection to the last question was sustained by the court. Though the witness was not permitted to answer the question, defendant insists that there was error in asking it because of what it suggested, that it gave the jury the impression that Scudder did not agree with Dr. Walker. The statement of the witness as to the treatment prescribed by Scudder was not brought out by any question pf counsel. It was volunteered by the witness. Having injected Scudder’s method of treatment, the way was opened for the cross-examination which counsel was at tempting to pursue .when stopped by the ruling of the court. There is no merit in this assignment of error.
Other alleged errors in the admission of evidence as to the proper treatment of fractures like that in question have been examined and deemed to be without merit. Similar questions are discussed and disposed of adversely to the defendant’s contention in Mayo v. Wright, 63 Mich. 32, and Spaulding v. Bliss, 83 Mich. 311.
It is alleged as cause for reversal that the verdict is excessive and against the great weight of the evidence.
All the medical experts agree that the condition of the plaintiff’s arm and hand is permanent. The muscles of the forearm are atrophied. He has what is known as a claw haxid without any sense of feeling except partially in the thumb. It will never be of any use to him. In addition to this humiliating deformity, which he must carry through life, he endured intense pain and suffering for maxiy weeks after the injury. In view of these facts, we think the verdict was not unreasonable as to the amount of damages awarded. Nor do we think it was against the great weight of the evidence. It is true that the plaintiff called but one medical expert, while the defendant produced several. But the proof of the controlling fact in the case did xiot depend upon professional testimony. They all agreed that the condition of the boy’s arm was caused by impairment of the circulation. They were in agreement as to what would cause the impairment. It was either the defendaxxt’s treatment following his reduction of the fracture or injury to the brachial artery by the fracture. The claim of injury to the artery is supported by the testimony of the defendant, who testified that after he reduced the fracture he could not feel the radial pulse. On his testimony medical experts based their opinion that the artery was injured at the time and by the 'fracture. On the part of the plaintiff, the boy’s father, who was present when the fracture was reduced, testified that defendant told him he could feel the radial pulse. If there was a radial pulse the artery was not injured and the impairment of the circulation must have been caused by the defendant’s treatment. So on the vitally important question in the case the only testimony was that of the defendant and the boy’s father. In respect to the testimony of the medical experts, none of them testified that the treatment as shown by the plaintiff’s testimony was proper. In fact, laymen would know that it was not. The verdict was not against the great weight of the evidence. The rec'ord shows no reversible error.
The judgment is affirmed, with costs to the plaintiff.
Potter, Sharpe, North, Pead, and Butzel, JJ., concurred with McDonald, C. J. Wiest, J., concurred in the result. Clark, J., took no part in this decision. | [
-40,
6,
21,
58,
12,
-28,
16,
-28,
-20,
27,
-37,
-49,
20,
9,
-4,
24,
7,
-38,
-17,
-10,
-11,
-47,
-1,
35,
-17,
-1,
16,
-45,
-10,
-14,
-5,
-10,
3,
15,
-4,
3,
40,
-3,
27,
-25,
55,
-46,
15,
-54,
32,
-2,
38,
23,
-12,
4,
75,
26,
21,
-11,
-91,
-13,
28,
40,
-26,
0,
-14,
-9,
17,
-22,
13,
-33,
-16,
44,
17,
-10,
-25,
1,
8,
-40,
-44,
-4,
-59,
-4,
34,
12,
-22,
1,
47,
23,
-3,
40,
-64,
7,
-37,
3,
49,
1,
8,
-46,
-21,
3,
-25,
18,
-11,
0,
20,
-2,
-20,
41,
19,
19,
-15,
-27,
26,
19,
-57,
15,
2,
-19,
57,
-83,
-2,
20,
30,
50,
-23,
28,
58,
-56,
17,
14,
-32,
-2,
28,
-27,
-53,
-23,
-57,
10,
10,
21,
-33,
-11,
6,
1,
-12,
38,
-3,
11,
-28,
28,
-39,
-79,
16,
5,
-32,
-40,
-13,
54,
18,
21,
-77,
19,
-33,
20,
8,
-14,
35,
17,
-16,
-25,
-38,
8,
23,
29,
41,
20,
-4,
-60,
4,
59,
16,
-4,
-40,
34,
28,
6,
30,
-43,
-8,
-12,
-36,
-23,
49,
2,
-6,
0,
-70,
-26,
4,
-22,
10,
-17,
49,
-2,
3,
-22,
2,
-25,
-10,
-17,
28,
-14,
24,
-7,
3,
-12,
-1,
-12,
1,
-31,
0,
-13,
-50,
-17,
-57,
8,
48,
0,
-28,
-16,
-3,
9,
-12,
-66,
27,
69,
-18,
1,
48,
-16,
-58,
-5,
5,
14,
-24,
-12,
-29,
-27,
-46,
44,
-42,
-20,
6,
-15,
-4,
17,
-2,
8,
-69,
47,
-16,
43,
-60,
81,
-40,
4,
-38,
109,
46,
39,
0,
2,
9,
-7,
-8,
-17,
78,
6,
-29,
-29,
-50,
-29,
38,
-4,
7,
-15,
7,
21,
13,
-24,
-46,
15,
-11,
-13,
29,
-26,
37,
-33,
21,
-48,
24,
-41,
-36,
-47,
14,
23,
9,
15,
-18,
39,
-45,
-11,
8,
-64,
-20,
27,
-16,
-31,
10,
0,
-2,
37,
18,
-7,
-15,
5,
-47,
0,
-51,
-12,
15,
-17,
-22,
19,
34,
19,
-15,
-5,
-30,
-47,
21,
99,
12,
-39,
37,
28,
-17,
-8,
-46,
52,
-11,
16,
30,
-9,
13,
-30,
73,
-12,
-36,
-19,
26,
7,
-10,
-1,
16,
-33,
-12,
-8,
-12,
-12,
6,
42,
-49,
74,
-45,
40,
3,
5,
6,
7,
-10,
33,
-8,
63,
-3,
42,
32,
-9,
-5,
-40,
-60,
-6,
6,
-3,
-66,
10,
63,
-25,
30,
4,
-37,
-50,
33,
-69,
12,
5,
9,
78,
-11,
7,
-5,
-20,
31,
-36,
0,
52,
15,
-48,
32,
10,
9,
-9,
-70,
-32,
47,
27,
-12,
-36,
34,
1,
23,
-29,
-19,
-48,
34,
18,
-15,
-19,
73,
-26,
-17,
25,
0,
-9,
-27,
-52,
36,
-3,
4,
45,
37,
15,
28,
-40,
80,
47,
33,
16,
-27,
-20,
-58,
-11,
-12,
32,
-21,
-24,
-23,
-12,
16,
15,
-2,
-2,
5,
7,
11,
-15,
-32,
-26,
8,
-11,
4,
23,
-29,
6,
6,
-88,
-10,
16,
-7,
-5,
-38,
32,
-45,
-22,
8,
-43,
-2,
48,
-3,
-21,
-46,
28,
-4,
-18,
-29,
-28,
-48,
6,
67,
-13,
57,
-8,
16,
-18,
-90,
22,
-12,
18,
7,
-20,
74,
17,
-14,
15,
-2,
-9,
-5,
9,
-50,
-19,
-21,
22,
-23,
-8,
20,
-34,
-10,
40,
-12,
-27,
0,
-33,
-8,
-11,
20,
-20,
66,
-26,
67,
-54,
-37,
16,
38,
2,
11,
-24,
32,
6,
30,
8,
6,
9,
18,
-47,
22,
40,
-1,
14,
32,
-23,
28,
-36,
59,
-55,
-7,
45,
47,
37,
-50,
-49,
-22,
2,
-2,
24,
21,
-11,
45,
69,
-50,
-13,
93,
-8,
-17,
28,
19,
24,
-14,
60,
-2,
-12,
-8,
-2,
35,
-3,
-16,
-21,
-28,
0,
25,
-30,
-30,
-13,
42,
-35,
7,
4,
-33,
-50,
-42,
-47,
-48,
46,
-16,
50,
1,
-28,
-12,
41,
1,
-34,
-29,
-45,
-37,
17,
43,
-18,
-17,
-32,
-5,
36,
-2,
79,
-7,
26,
-55,
-20,
-21,
-37,
-97,
71,
1,
41,
-59,
-27,
-25,
41,
-38,
55,
-33,
-22,
-1,
-7,
9,
20,
-19,
11,
-5,
-52,
-25,
23,
18,
36,
-13,
-4,
-10,
52,
4,
-70,
-40,
-27,
-37,
83,
20,
-14,
28,
-43,
84,
27,
14,
35,
38,
-7,
32,
-6,
-16,
57,
44,
-30,
38,
10,
28,
47,
-5,
1,
-24,
1,
-8,
0,
15,
5,
26,
-30,
-15,
-21,
4,
-3,
-66,
28,
31,
48,
38,
29,
-5,
3,
2,
-14,
-28,
-9,
21,
8,
27,
45,
7,
-5,
-21,
-27,
55,
-20,
-4,
38,
-1,
31,
-54,
0,
-8,
-27,
-38,
-5,
-11,
10,
0,
1,
-19,
-23,
-19,
45,
-4,
-53,
-36,
-49,
16,
-7,
23,
63,
9,
0,
15,
-54,
-29,
-42,
40,
-13,
-71,
0,
-7,
2,
26,
25,
-15,
-32,
-36,
-63,
15,
10,
9,
17,
66,
61,
-33,
1,
34,
8,
-19,
-20,
-18,
-12,
-21,
-4,
52,
2,
-12,
4,
27,
-50,
60,
24,
22,
11,
-24,
-1,
31,
24,
29,
5,
-9,
17,
12,
-12,
-45,
8,
36,
0,
-34,
18,
13,
12,
-3,
-31,
18,
7,
-25,
-36,
-20,
-51,
-17,
15,
-14,
30,
36,
-1,
-1,
-30,
-26,
17,
7,
57,
-2,
0,
30,
-35,
2,
78,
31,
-41,
17,
-59,
-6,
-34,
36,
-59,
7,
-39,
-10,
15,
-9,
-12,
-47,
-17,
0,
6,
10,
10,
6,
-14,
6,
-33,
-6,
-61,
-26,
27,
-15,
-62,
45,
16,
-6,
-14,
-15,
-66,
33,
-32,
-10,
13,
5,
-13,
-39,
30,
-10,
5,
13,
20,
-49,
40,
48,
40,
8,
12,
15,
-20,
-22,
-59,
54,
4,
-3,
28,
-39,
23,
50,
35,
-24,
47,
28,
48,
-27,
-14,
-6,
-28,
69,
7,
1,
-13,
32,
18,
-17,
64,
11,
-5,
23,
-24,
51,
-9,
-11,
-63,
0,
6,
54,
70,
-49,
79,
-31,
-28,
32,
-19,
-27,
30,
-10,
-66,
-9,
10,
-25,
8,
7,
4,
17,
27,
26,
-32,
-80,
57,
-4,
39,
21,
13,
-17,
-9,
19,
75,
-70,
-46,
13,
-43,
-14,
-3,
43,
11,
6,
-66,
8,
24,
-63,
-6,
-46,
69,
-27,
-21,
-23,
6,
-20,
30,
0,
-29,
49,
-50,
16,
10,
0,
26,
-4,
92,
-80,
-45,
50,
-59,
-28,
28,
56,
74,
32,
-20,
36,
-17,
26,
1,
27,
20,
-6,
-39,
6,
44
] |
Clark, J.
This is an action of malicious prosecution in which plaintiff had verdict and judgment. Defendant has appealed. Plaintiff was a teacher in a public school at Detroit. She married and desired furniture for a home. She had a charge account at defendant’s store and went there for furniture, made her wants known, and was directed to the office of the credit manager, Mr. Reutter, where, on September 18,1926, she signed in blank a lease, so-called, a title-retaining contract. There is testimony that it was usual practice at the store, when goods were to go out on title-retaining contract, for the customer to arrange for the purchase and to sign the paper in advance, and, when selections had been made, to write them into the contract. On or about the date of the contract, plaintiff made selections of furniture. The items and amounts were carried into the contract. It also appears that some articles of furniture which had been charged to plaintiff on open account were likewise carried into the contract. Defendant ceased active business, and its accounts were in charge of Mr. Maynard, who was employed in that regard. Mr. Reutter was not in defendant’s employ after July 30, 1927. Plaintiff stored the furniture, and later took it to Toronto, where it was disposed of. Mr. Maynard, learning of what had befallen the furniture, and after making inquiries, and after having a letter to plaintiff returned, went to the prosecuting attorney, exhibited the contract, and disclosed what he knew. He stated to the prosecuting attorney that he had not seen the contract signed, and that Mr. Reutter had acted for defendant in making the contract. He also gave the information relative to taking the furniture from storage to Toronto. The prosecuting attorney directed that Mr. Reutter and some one from the storage company appear at his office. Mr. Reutter and a Mr. Pemberton of the storage company appeared and were questioned by the attorney, who thereupon directed that complaint be made by Mr. Maynard. Arrest, preliminary examination, commitment for trial, trial, acquittal, and this suit followed.
Plaintiff admitted the signing, denied that she knew it to be a form of title-retaining contract, and testified that she signed her name when requested and because of the change of name by marriage, and that she thought she bought the furniture on open or charge account.
Defendant’s contention is that verdict ought to have been directed in its favor as requested, for the reason that there had been a full and fair statement to the prosecuting attorney of all material facts within the knowledge of Mr. Maynard, the prosecuting witness, that the complaint was made on advice and direction of the prosecuting attorney, and that, therefore, probable cause was established as a matter of law, and that- plaintiff had failed, as a matter of law, to establish want of probable cause.
In this case, as in like cases, it was upon plaintiff to make a case, to establish three elements. Swaney v. John Schlaff Creamery Co., 212 Mich. 567. One of them is that defendant had no probable cause.
The liability here, if any, of the defendant corporation is for the acts of its agent, Maynard. 14A C. J. p. 770; 38 C. J. p. 454; Wachsmuth v. Merchants National Bank, 96 Mich. 426 (21 L. R. A. 278). It is not liable for the investigation conducted by the prosecuting attorney in his questioning of Mr. Reutter and Mr. Pemberton, neither of whom was then an agent or employee of this defendant, nor for what they or either of them said, or did not say, to the prosecuting attorney.
In Swaney v. John Schlaff Creamery Co., supra, it was said:
“If the prosecuting witness has in good faith fully and fairly stated all the material facts within his knowledge to * * * the prosecuting attorney and acted upon his * * * advice, proof of the fact establishes a case of probable cause.”
See Davis v. McMillan, 142 Mich. 391 (3 L. R. A. [N. S.] 928, 113 Am. St. Rep. 585, 7 Ann. Cas. 854).
The record is wholly to the effect that Mr. Maynard disclosed to the prosecuting attorney all material facts relating to the matter within his knowledge. He did not investigate to learn what defense or contention, if any, plaintiff intended to make, nor was he required to do so. Dunlap v. New Zealand Fire & Marine Ins. Co., 109 Cal. 365 (42 Pac. 29). He relied on the contract. If he had gone into its antecedents, had checked the original sales slips, he might have learned that the contract had ‘been signed in blank in accordance with store custom, and that plaintiff had had a charge account from which-.some items were taken into the contract, but he did not do that, and had no such knowledge, nor do we think he was required so to do.
In a note reviewing many cases, 5 A. L. R. 1695, it is said:
“If there are sufficient facts to warrant an ordinarily prudent person in believing that another has committed a crime, failure to make further investigation before instituting a prosecution does not constitute a want of probable cause. ’ ’
And, at page 1699:
“It does not show a want of probable cause for a person to fail to exhaust all sources of information before instituting a proceeding.”
And page 1700:
“It does not show a want of probable cause for a person to fail to verify each item of information received, before proceeding thereon.”
And in Weiden v. Weiden, 246 Mich. 347, where judgment on verdict directed for defendant was affirmed, it was held, quoting syllabus;
“If the facts proven establish probable cause, it is not necessary to defendant’s protection that he was familiar with all of them when he made the complaint, but if he acts as a reasonably prudent man should act under the circumstances, he is not to be cast in damages for malicious prosecution even though the accused be innocent.”
If defendant had instituted a civil suit upon the contract, such contract bearing, „unquestionably, plaintiff’s signature, would have been prima facie evidence in respect of defendant’s rights under it. .
Birdsall v. Smith, 158 Mich. 390, involved prosecution for selling adulterated milk. It was instituted upon a certificate of a department of State showing adulteration. The certificate was prima facie evidence of such adulteration. The complaint had been made by an employee of the department. Investigation would have shown the certificate to have been made in error. Held, no duty rested on such employee to make further investigation of the facts, the certificate being prima facie evidence, and judgment for defendant on directed verdict was affirmed.
Maynard was not required in any aspect of this case to make further investigation. He made to the prosecuting attorney full and fair disclosure of all material facts within his knowledge. He acted upon his advice and direction. Probable cause was established as a matter of law. Verdict should have been directed for defendant. Fleckinger v. Taffee, 149 Mich. 678.
Reversed, with costs, and without new trial.
Sharpe, North, Wiest, and Butzel, JJ., concurred with Clark, J. | [
-7,
-55,
-32,
14,
-29,
-24,
19,
9,
6,
14,
33,
28,
11,
44,
2,
-12,
21,
21,
-36,
-18,
33,
-22,
-46,
-22,
-1,
-8,
-9,
-44,
-37,
34,
-28,
23,
14,
-24,
-25,
3,
0,
-2,
22,
-40,
13,
-22,
-6,
-38,
38,
11,
66,
-6,
79,
-44,
44,
32,
-17,
3,
23,
-49,
-13,
28,
14,
13,
6,
-7,
-9,
-20,
8,
-55,
68,
24,
6,
21,
5,
-4,
7,
-26,
-19,
-56,
-31,
-15,
1,
30,
43,
-44,
16,
-6,
-25,
-2,
-14,
8,
-53,
19,
-1,
3,
-19,
27,
18,
-1,
3,
3,
33,
11,
14,
19,
-10,
11,
16,
37,
2,
-8,
-30,
46,
-20,
17,
49,
-24,
-6,
35,
5,
4,
50,
0,
69,
7,
-29,
-57,
42,
8,
-11,
-16,
11,
12,
-1,
27,
-62,
-43,
-1,
42,
-14,
51,
5,
-9,
21,
43,
9,
-8,
-20,
62,
-11,
-9,
-28,
-9,
-35,
26,
73,
59,
45,
-28,
0,
-25,
0,
-67,
-25,
-26,
-35,
-18,
-17,
-2,
-16,
-21,
-6,
-16,
-39,
-10,
-2,
-41,
25,
29,
31,
-3,
0,
-36,
15,
-8,
-6,
-41,
18,
-35,
0,
-35,
-12,
35,
44,
-28,
11,
2,
-30,
65,
-66,
29,
14,
-7,
20,
-61,
-57,
-15,
-6,
-2,
-7,
-47,
1,
1,
-40,
-10,
-1,
-64,
-23,
-1,
-34,
-29,
6,
9,
-18,
-22,
-11,
54,
-16,
-27,
30,
-8,
22,
2,
-35,
-8,
-26,
11,
-20,
0,
6,
7,
49,
25,
-37,
-18,
-5,
18,
-41,
-33,
-78,
62,
-12,
-1,
-14,
-8,
-28,
81,
-25,
12,
-3,
22,
12,
-6,
-25,
48,
12,
-10,
17,
-18,
42,
11,
-49,
0,
-9,
18,
49,
54,
-12,
-46,
-28,
-4,
6,
-17,
14,
-22,
-28,
-48,
7,
7,
-27,
47,
-25,
-47,
-29,
-3,
6,
-50,
51,
-3,
9,
-49,
-35,
-14,
-20,
-29,
30,
9,
10,
37,
-12,
21,
-27,
2,
-73,
-2,
48,
-38,
-12,
-58,
7,
-7,
0,
-17,
4,
2,
-7,
38,
0,
-42,
20,
-15,
-16,
-12,
30,
-38,
-10,
-63,
-2,
-5,
12,
4,
-12,
-24,
54,
15,
0,
-8,
7,
19,
22,
-8,
-49,
-21,
4,
-48,
-8,
61,
48,
-13,
29,
7,
2,
13,
38,
60,
-9,
-35,
11,
14,
-10,
-26,
20,
33,
1,
-6,
-18,
24,
-39,
-33,
-21,
-64,
-4,
35,
-8,
-48,
7,
16,
13,
-18,
-1,
-6,
26,
47,
-62,
4,
4,
-19,
-2,
-49,
1,
49,
-58,
-57,
-17,
31,
39,
-42,
-34,
36,
-1,
-28,
14,
46,
-28,
18,
-12,
0,
-16,
-35,
23,
-45,
15,
25,
24,
12,
24,
25,
23,
-37,
16,
19,
18,
16,
-2,
17,
-2,
1,
15,
-24,
-69,
-3,
18,
10,
-17,
-9,
-65,
24,
0,
10,
-29,
33,
21,
-13,
25,
12,
-7,
11,
49,
47,
24,
2,
16,
14,
48,
-14,
13,
-29,
13,
22,
39,
-34,
-30,
36,
-20,
-17,
36,
15,
18,
1,
-26,
-14,
14,
12,
25,
51,
47,
-17,
-54,
-25,
-9,
-66,
-22,
29,
12,
-7,
-14,
51,
0,
-5,
24,
17,
-36,
20,
-27,
-40,
28,
21,
36,
3,
-34,
-6,
1,
62,
0,
18,
-2,
24,
13,
27,
24,
30,
28,
20,
70,
45,
-10,
47,
-18,
11,
46,
0,
2,
25,
-2,
32,
13,
-43,
24,
31,
27,
-16,
35,
-26,
-4,
18,
-30,
36,
-47,
-1,
-19,
-36,
13,
2,
21,
10,
25,
-10,
-7,
14,
15,
-20,
-6,
21,
-36,
-13,
26,
-27,
24,
-9,
-23,
-53,
48,
30,
-19,
-13,
17,
6,
-48,
11,
-7,
-33,
0,
-14,
-16,
12,
9,
-33,
-23,
-12,
36,
58,
8,
20,
6,
-41,
28,
-54,
21,
-11,
-27,
2,
40,
-9,
5,
32,
-12,
-45,
-8,
-25,
-6,
55,
-2,
-39,
43,
18,
-26,
-52,
-13,
14,
21,
-17,
5,
16,
27,
-13,
6,
18,
0,
-1,
1,
-38,
19,
-24,
-18,
-4,
5,
14,
-28,
6,
18,
-2,
-19,
-24,
-35,
20,
13,
37,
0,
25,
-28,
6,
8,
-15,
-61,
0,
62,
-10,
3,
-35,
-4,
-16,
-3,
-23,
-17,
-14,
-44,
1,
36,
-7,
4,
-49,
-5,
-25,
15,
5,
23,
28,
19,
6,
2,
-16,
24,
4,
19,
42,
7,
14,
0,
-19,
37,
-22,
-26,
-14,
-2,
-10,
-39,
-13,
-26,
-5,
34,
-40,
0,
9,
14,
-12,
-11,
14,
-5,
-8,
-61,
12,
-51,
-19,
0,
-36,
-1,
10,
-32,
50,
-19,
14,
-44,
4,
-15,
-9,
-1,
-40,
-17,
-2,
26,
17,
5,
2,
49,
-15,
30,
-9,
-4,
19,
8,
-28,
17,
-35,
9,
21,
-29,
-4,
-23,
-12,
-1,
9,
5,
-6,
9,
7,
20,
2,
16,
1,
-18,
-35,
-37,
5,
7,
28,
-64,
-12,
8,
12,
-11,
-25,
4,
-68,
-50,
9,
-7,
-4,
2,
13,
48,
0,
42,
-10,
-5,
-8,
8,
29,
-45,
-36,
19,
0,
50,
31,
13,
1,
-41,
-55,
-36,
38,
35,
-2,
-15,
-37,
1,
38,
-22,
44,
-26,
-4,
-26,
41,
-35,
-40,
12,
7,
-49,
-63,
4,
21,
13,
13,
-6,
10,
1,
10,
-40,
-27,
-23,
-20,
-37,
-26,
-58,
38,
9,
1,
-22,
28,
-9,
14,
15,
-3,
-27,
31,
-27,
40,
3,
10,
28,
29,
10,
21,
64,
-42,
25,
9,
4,
7,
-2,
6,
26,
17,
32,
10,
1,
12,
-26,
-19,
32,
24,
-42,
3,
64,
-10,
39,
19,
7,
19,
33,
31,
-19,
-23,
29,
23,
38,
25,
-2,
23,
-9,
32,
34,
-30,
-37,
2,
8,
45,
-4,
-64,
5,
-39,
48,
-64,
25,
-27,
10,
4,
-9,
27,
-2,
8,
43,
-2,
2,
3,
8,
3,
-1,
31,
-26,
7,
-24,
31,
-3,
9,
26,
-45,
-13,
-5,
35,
-17,
11,
11,
-45,
41,
21,
9,
-6,
35,
19,
0,
1,
-40,
-4,
-26,
-24,
-43,
11,
-8,
3,
12,
6,
-23,
-30,
4,
-37,
51,
-7,
13,
-82,
28,
-5,
-14,
-35,
-38,
-10,
25,
5,
-34,
11,
2,
7,
2,
0,
-22,
-16,
-35,
0,
-9,
-33,
-47,
17,
-17,
-4,
27,
53,
-17,
-19,
27,
22,
-25,
36,
-13,
-20,
-44,
22,
-23,
30,
0,
-15,
-11,
3,
-52,
29,
-14,
3,
-27,
39,
-7,
4,
-39,
41,
9,
-8,
-12,
-17,
-44,
57,
59,
8,
16,
-36,
6,
14,
0,
-3,
6,
-1,
32
] |
Fead, J.
This is mandamus to require repayment in full, as a preferred claim, of a deposit of State moneys.
The Equitable Trust Company is in a condition of suspended animation, pending reorganization or receivership, in charge of conservators appointed by the banking commissioner, with the consent of the governor, under Act No. 32, Pub. Acts 1933. The conservators have refused the demand of the governor, State treasurer, and attorney general, made in behalf of the State, for immediate payment of a deposit of $10,000 of State moneys, made by tbe State treasurer and secured by a corporate surety depository bond, approved as provided in 1 Comp. Laws 1929, § 348.
Tbe State claims preference over all other depositors and creditors of tbe trust company on tbe ground that sucb preference is a sovereign prerogative inhering in tbe crown at common law and attaching to the State on its adoption of tbe common law.
Tbe courts are in hopeless conflict on the existence of tbe prerogative in tbe respective States, its force in tbe law, its waiver, loss, and susceptibility to subrogation. But tbe weight of authority sustains tbe prerogative in States which have adopted tbe common law. Tbe literature on the subject may be found in United States Fidelity & Guaranty Co. v. Bramwell (1923), 108 Ore. 261 (217 Pac. 332, 32 A. L. R. 829); People v. Farmers’ State Bank (1929), 335 Ill. 617 (167 N. E. 804, 65 A. L. R. 1327); In re South Philadelphia State Bank’s Insolvency (1929), 295 Pa. 433 (145 Atl. 520, 83 A. L. R. 1123); Shaw v. United States Fidelity & Guaranty Co. (1932) (Tex. Com. App.), 48 S. W. [2d] 974 (83 A. L. R. 1113.); 65 A. L. R. 1331; 51 A. L. R. 1355, and tbe authorities cited therein.
This is a test case. Counsel ably have presented a number of interesting questions, sucb as the effect of depository laws, deposit at interest, appointment of a receiver, and general statutes on insolvency on waiver or loss of the prerogative. These questions need not be discussed. It is agreed that tbe banking laws are applicable, and, in our opinion, they are determinative.
Tbe judicial history of tbe prerogative in this State is brief. In Commissioner of Banking v. Chel sea Savings Bank (1910), 161 Mich. 691, the prerogative was claimed by the surety on a depository bond which sought subrogation to the State’s preference. The prerogative was denied by the attorney general in his brief and doubted by the court in this language:
“The form of our government, the undoubted power of the legislature in this behalf, furnish reasons for saying that in adopting the applicable rules of the common law as a part of the law of the State, the people did not adopt and thereby assert an arbitrary, prerogative right to priority of payment of its debts, which was recognized by the common law. In any event, the State has never asserted, and does not now assert, such a right.”
The prerogative also darted in and out of Reichert v. United Savings Bank (1931), 255 Mich. 685 (82 A. L. R. 33), without alighting. So far as can be ascertained, this is the first time it has been claimed by the State. In Board of Chosen Freeholders of Middlesex County v. State Bank (1878), 29 N. J. Eq. 268, (1878), 30 N. J. Eq. 311, the court thought that nonuser for 100 years was sufficient to negative the prerogative. At least, such nonuser would cast doubt upon the present existence of the prerogative while the unfavorable consideration it had- from the attorney general and this court on its former presentation and the injury it would work to general bank depositors forbid the rejection of fair evidence of its abrogation or waiver.
If the prerogative inheres in this State, it is by virtue of the adoption of the common law in our Constitution. In the Constitution of 1835 the common law was not adopted in express terms. The schedule, § 2, read:
“All laws now in force in the territory of Michigan, which are not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or be altered or repealed by the legislature. ’ ’
By construction, the court held “all laws” to include the common law. Stout v. Keyes, 2 Doug. 184, 188, 189 (43 Am. Dec. 465).
In the Constitutions of 1850 and 1908, schedule, § 1, read:
“The common law and the statute laws now in force, not repugnant to this Constitution, shall remain,” etc.
We will assume that the prerogative inhered in the State at one time. Has it been abrogated or waived?
The Constitution of 1850, art. 15, § 5, provided:
“In case of the insolvency of any bank or banking association, the bill-holders thereof shall be entitled to preference in payment over all other creditors of such bank or association.”
The provision was the mandate of the people in the exercise of the highest attribute of sovereignty under our form of government, the adoption of a Constitution. It was a limitation of power and bound all departments, executive, legislative, and judicial, to conserve the expressly declared preference. The constitutional preference was repugnant to the sovereign prerogative. No exception was made in favor of the State. The prerogative was not preserved, either in whole, as superior or equal to, or in part, in subordination of, the expressed preference. The prerogative, therefore, was abrogated as to banks and banking associations and could have no future force without constitutional or statutory re-enactment.
Preference to the State is. inadmissible on another principle. Since 1850 banking has been treated in this State as a thing apart. Because of the evils which had developed from the general banking act of 1837 (see Green v. Graves, 1 Doug. 351), the Constitution of 1850, art. 15, § 2, provided that no general banking law should take effect until approved by the people at a general election. The Constitution of 1908, art. 12, § 9, requires that banking legislation have the votes of two-thirds of the members-elect to each house of the legislature.
Under these provisions, three general banking acts have been adopted. Two, Act No. 135, Laws of 1857 (1 Comp. Laws 1871, §2182 et seq.), and Act No. 205, Pub. Acts 1887 (3 How. St. § 3208a et seq.), were approved by the people, and Act No. 66, Pub. Acts 1929 (3 Comp. Laws 1929, § 11898 et seq.), was enacted by the legislature. Amendments have been made from time to time, as lately as the legislative sessions of 1931, 1932 (1st ex. sess.), and 1933.
The banking act of 1857 was rather sketchy but the acts of 1887 and 1929 were complete and comprehensive codes, fully governing the business of banking. The latter has been so declared by this court. Stewart v. Algonac Savings Bank, 263 Mich. 272. It is a recognized rule that general laws do not apply to such codes. Leach v. Exchange State Bank (1925), 200 Iowa, 185 (203 N. W. 31). In Cook County National Bank v. United States (1882), 107 U. S. 445 (2 Sup. Ct. 561), the court held that a general statute giving the United States preference as a creditor does not apply to the national banking act:
“The provisions of that law and of the national banking law being, as applied to demands against national banks, inconsistent and repugnant, the former law must yield to the latter, and is, to the extent of the repugnancy, superseded by it. The doctrine as to repugnant provisions of different laws is well settled, and has often been stated in decisions of this court. A- law embracing an entire subject, dealing with it in all its phases, may thus withdraw the subject from the operation of a general law as effectually as though, as to such subject, the general law were in terms repealed. The question is one respecting the intention of the legislature. And although as a general rule the United States are not bound by the provisions of a law in which they are not expressly mentioned, yet if a particular statute is clearly designed to prescribe the only rules which should govern the subject to which it relates, it will repeal any former one as to that subject.”
In point is Commonwealth v. Commissioner of Banks (1922), 240 Mass. 244 (133 N. E. 625), in which the State made claim of preference under the common-law sovereign prerogative, and it was denied, among other grounds, because—
“It is a general principle that, when legislation covers the entire field, previous provisions of either the common or statutory law in conflict therewith become no longer operative.”
In its reply brief, the State contends that a law permitting deposit of State moneys without preference would be invalid, as a loan of State credit in violation of the Constitution, art. 10, § 12 (White v. Pioneer Bank & Trust Co., 50 Idaho, 589 [298 Pac. 933], followed in Lawson v. Charter, 112 W. Va. 108 [163 S. E. 813]), and, as an express law could not defeat the preference, it could not be waived by the legislature.
This contention, if sound, would not revive the prerogative abrogated by the Constitution of 1850. At most, it might nullify the effect of the general banking laws to waive it.
"We cannot follow the reasoning of the cited cases. Preference as a creditor has nothing to do with the power to loan State credit. The credit cannot be loaned under any conditions or upon any security. Nor, if illegally loaned by means of a deposit, would a preference as a creditor be created thereby. Preference and the doctrine of following trust funds must not be confused. Aside from the fact that our Constitution, art. 10, § 15, recognizes the legitimacy of the deposit of State moneys in banks, we do not think a deposit kept in the ordinary course of business can be considered a loan of State credit within the constitutional inhibition.
Denial of the sovereign prerogative of preference, clearly demanded on legal grounds, does not thwart the will of the people, violate the intention of the legislature, nor work injustice.
The preference to bill-holders in the Constitution of 1850 was not a casual piece of legislation. It, with other provisions, was a considered attempt by the people to maintain the integrity of State bank currency after their experience with “wild cat money, ’ ’ and was a pledge to the world that the bill-holders should have first claim on the assets of the bank. And the failure of the State to reserve a preference in cases of banks was in accord with its already declared policy as to insolvent corporations and individuals. R. S. 1846, chaps. 118, 144; Comp. Laws 1871, p. 1852, § 6607, p. 2002, § 7265.
The act of 1887 provided for distribution of assets of an insolvent bank by means of “ratable dividends” on all claims proved (3 How. Stat. § 3208f6). By Act No. 194, Pub. Acts 1893, it was enacted that savings assets should be segregated and held for the payment of savings depositors. The same provisions have been incorporated unchanged in the revised and codified banking act of 1929 (3 Comp. Laws 1929, §§ 11928, 11962) and constitute the present law, except as to certain preferences (not including general State deposits) declared by Act No. 32, Pub. Acts 1933, an emergency measure, expiring by limitation on June 1, 1935. If the latter act is of any effect at bar, it emphasizes the view that the legislature intended that the State have no preference.
The provisions for “ratable dividends” in the Act of 1887 followed so closely the language of the national banking act of 1864, 13 U. S. Stat. at L., p. 115 (12 USCA, § 194), that it evidently was modeled thereon. The adoption and retention of such basis of distribution were for the purpose of putting State banks on a parity with national banks, in order that banking in the State should be uniform and depositors have equal rights. It is significant of the intention of the legislature and people in 1887 that it already had been decided that the Federal government has no preference as a creditor in national banks (Cook County National Bank v. United States [1882], supra), and of the legislature of 1929, that it also had been held that no preference in national banks can arise out of the State law. Davis v. Elmira Savings Bank (1896), 161 U. S. 275 (16 Sup. Ct. 502).
It seems clear that the people and legislature intended to provide and continue distribution of assets of State banks without governmental preference, in harmony with the rule governing national banks. The law requiring security for State deposits and the general State policy on preferences afforded justification for such intention,
The resurrection of the sovereign prerogative of preference at this time, after almost a century of coma, from which it has been aroused only once before, and then to encounter the disfavor of the executive law officer of the State and the court, could not be otherwise than unfair to the people of the State, who, for 46 years, have been depositing moneys in State banks in a justified belief that, in case of the insolvency of a bank, the distribution of assets would be made in accordance with the written law enacted by them and re-enacted by their representatives. Since 1855 the State has had the advantage of separate “good and ample security” for its deposits. 1 Comp. Laws 1929, § 348. If a State preference were imposed on the assets of a bank, the sureties on the State depository bonds or the security deposited would profit at the expense of the depositors. If prevailing business conditions imperil the State’s security, common fairness requires that the loss to the whole people (the State) be borne by the whole people rather than it be shifted to a small part of the people (the other depositors). And, in any event, the State retains the advantage over others of double assurance against loss by way of participation ratably with other depositors in the assets of the bank and such recovery as its separate bond or security may avail.
On both strict legal principles and equitable considerations, we must hold that the State has no sovereign prerogative of preference as a creditor of banks over other depositors and creditors.
Writ of mandamus denied.
Clark, Sharpe, North, Wiest, and Butzel, JJ,, concurred with Fead, J. | [
22,
-3,
24,
27,
15,
53,
34,
19,
-2,
-24,
33,
-19,
80,
-8,
-38,
-7,
-8,
30,
-15,
4,
-36,
-16,
-7,
-11,
20,
13,
9,
36,
28,
17,
11,
-11,
-33,
18,
-63,
-21,
-27,
-1,
47,
-15,
43,
16,
-23,
44,
-29,
-21,
-66,
-50,
-26,
-39,
-15,
13,
-2,
7,
1,
32,
-6,
-73,
-15,
11,
32,
-24,
57,
5,
-36,
7,
-23,
27,
2,
-4,
-2,
36,
11,
22,
46,
1,
-3,
-7,
1,
-54,
9,
-80,
-6,
-30,
-36,
0,
-53,
16,
-8,
37,
0,
48,
-77,
-25,
-44,
50,
39,
0,
54,
63,
-37,
-64,
7,
3,
-12,
25,
3,
-20,
24,
-7,
33,
-18,
-8,
-21,
-83,
21,
-89,
-2,
-79,
-29,
0,
4,
-38,
-18,
-2,
-31,
37,
-40,
-49,
30,
16,
10,
-50,
31,
-11,
-17,
-4,
-25,
-24,
-17,
-19,
-42,
18,
-22,
-26,
-55,
38,
-35,
43,
25,
47,
18,
-8,
-7,
20,
-6,
-53,
-23,
18,
-1,
-8,
72,
-13,
-6,
-46,
-8,
-15,
64,
-6,
63,
-28,
28,
-23,
-5,
0,
-22,
18,
-13,
35,
5,
-21,
45,
58,
3,
-13,
-6,
-66,
-10,
62,
-12,
-23,
-3,
9,
62,
2,
15,
18,
-12,
-9,
-12,
-21,
16,
-4,
9,
4,
-46,
3,
-41,
-20,
57,
-4,
79,
-41,
16,
-55,
-19,
13,
6,
36,
-24,
3,
54,
-3,
-24,
-8,
-1,
30,
-42,
-20,
-18,
8,
6,
15,
-11,
42,
30,
28,
-2,
39,
30,
4,
32,
-56,
-51,
6,
-50,
-3,
17,
-13,
-1,
2,
28,
-17,
71,
2,
8,
-20,
-2,
-40,
-43,
-9,
6,
-46,
-10,
16,
-31,
-35,
35,
30,
-45,
36,
-15,
41,
-39,
30,
-4,
-25,
10,
-18,
-51,
-8,
20,
-3,
-15,
-26,
3,
-44,
-11,
-34,
15,
60,
-27,
28,
39,
0,
50,
-43,
14,
29,
40,
-10,
30,
17,
12,
25,
34,
-43,
-13,
-55,
-46,
50,
5,
-73,
-10,
49,
-13,
13,
0,
6,
-22,
48,
-43,
11,
-26,
64,
-17,
57,
-15,
-39,
20,
-34,
-8,
12,
-26,
-15,
11,
71,
-23,
-7,
-8,
26,
-20,
4,
-4,
-1,
-11,
-22,
-44,
-64,
24,
-51,
13,
-57,
28,
-29,
-17,
8,
23,
7,
31,
31,
-19,
-8,
11,
33,
26,
-33,
-8,
26,
0,
56,
-49,
-26,
-56,
-31,
14,
-60,
45,
-35,
-20,
23,
-31,
-32,
21,
37,
-2,
-47,
13,
-113,
-41,
-11,
-4,
2,
18,
-48,
-15,
-23,
-36,
-18,
12,
-45,
16,
-33,
-49,
-23,
-16,
20,
-52,
26,
54,
-17,
-17,
-31,
2,
-44,
18,
36,
-32,
65,
29,
-12,
-24,
-2,
1,
0,
-43,
-33,
46,
-37,
-8,
-67,
-4,
-4,
12,
7,
4,
18,
-71,
-15,
17,
58,
16,
30,
13,
30,
21,
-6,
-19,
8,
39,
2,
-11,
30,
-49,
-10,
11,
35,
-20,
45,
-28,
33,
-11,
23,
42,
5,
-3,
-16,
11,
47,
-30,
-1,
-10,
1,
8,
-18,
17,
3,
16,
2,
-30,
1,
59,
11,
-2,
-22,
3,
-15,
-60,
-28,
-43,
-15,
14,
-16,
38,
-14,
2,
-27,
-31,
16,
9,
72,
10,
29,
5,
16,
40,
-29,
-32,
-62,
43,
-23,
-31,
46,
81,
8,
20,
-1,
-6,
12,
55,
8,
28,
-41,
0,
19,
49,
-13,
58,
18,
-28,
-12,
-17,
-3,
20,
-21,
59,
-43,
38,
19,
-52,
-19,
12,
0,
54,
9,
-1,
46,
21,
-45,
-21,
-51,
-21,
47,
42,
0,
-9,
54,
-6,
17,
-18,
-45,
14,
6,
-21,
-19,
-32,
13,
2,
-13,
-14,
31,
-6,
-34,
58,
30,
15,
1,
10,
0,
-29,
-2,
-22,
-13,
-61,
5,
21,
-14,
-44,
16,
-2,
26,
-3,
12,
-6,
-16,
-5,
68,
6,
-22,
55,
2,
21,
-20,
-3,
30,
-25,
27,
29,
-16,
-19,
13,
-2,
34,
9,
-50,
12,
-10,
0,
2,
2,
3,
35,
6,
-47,
16,
0,
23,
-15,
7,
63,
51,
-35,
7,
24,
-50,
1,
-68,
16,
36,
-8,
-50,
0,
-8,
-23,
25,
0,
-13,
36,
68,
24,
-30,
66,
43,
16,
-3,
18,
-21,
9,
13,
-25,
51,
-22,
-17,
43,
10,
65,
-21,
51,
28,
-22,
45,
9,
32,
4,
53,
-14,
0,
25,
-15,
-14,
-77,
3,
-25,
63,
-9,
43,
42,
12,
-30,
-45,
-7,
18,
-39,
-39,
4,
-34,
33,
31,
-47,
24,
33,
0,
-19,
-13,
-48,
-45,
-21,
15,
-10,
48,
6,
-12,
5,
-28,
41,
28,
-12,
-4,
-26,
-40,
3,
-49,
13,
21,
22,
22,
3,
-53,
-51,
-25,
-26,
-34,
-28,
2,
11,
49,
6,
31,
-44,
-44,
30,
18,
9,
59,
-37,
43,
-18,
36,
12,
30,
42,
-23,
-34,
-1,
-34,
28,
-47,
30,
46,
-30,
-63,
29,
0,
13,
19,
-37,
-22,
-22,
-4,
-64,
62,
-54,
-4,
17,
8,
-20,
-1,
-38,
38,
10,
27,
32,
48,
39,
55,
-94,
-2,
-37,
-23,
47,
-6,
-13,
23,
-13,
-1,
58,
44,
-8,
-7,
-15,
-13,
29,
-16,
-1,
25,
15,
7,
-4,
16,
-37,
-4,
-40,
1,
30,
35,
62,
-23,
37,
-68,
-49,
2,
62,
29,
-29,
-61,
45,
-26,
0,
-18,
9,
-22,
-14,
-48,
-28,
15,
-27,
11,
-8,
76,
-5,
28,
-98,
-24,
-13,
27,
-17,
-49,
38,
-13,
30,
13,
-34,
-49,
-13,
62,
-21,
-40,
-18,
14,
-18,
20,
47,
-40,
36,
-7,
-83,
-58,
67,
25,
3,
-28,
58,
-2,
9,
-57,
-12,
49,
4,
-22,
-11,
-38,
2,
-12,
22,
-2,
12,
13,
-2,
-24,
66,
9,
-17,
-37,
33,
20,
-28,
-14,
-53,
-2,
12,
-23,
8,
-41,
-5,
27,
2,
15,
42,
11,
56,
3,
15,
34,
-59,
22,
38,
26,
-31,
-33,
35,
23,
9,
-51,
-3,
-20,
-17,
41,
29,
15,
26,
1,
-11,
4,
14,
28,
19,
0,
-9,
23,
-45,
19,
-64,
-32,
-14,
1,
-6,
3,
10,
-2,
-61,
-30,
9,
6,
19,
9,
0,
-24,
-15,
-17,
-10,
-41,
-26,
25,
-54,
46,
-22,
61,
-68,
-35,
34,
39,
-16,
-35,
-50,
-34,
14,
1,
-57,
18,
-42,
19,
-8,
-22,
1,
-43,
18,
43,
35,
-54,
-2,
68,
28,
-1,
30,
0,
-6,
17,
9,
54,
14,
36,
-39,
27,
-12,
-18,
-29,
-11,
21,
6,
-40,
2,
10,
18,
44,
26,
-2,
10,
-20,
39,
8,
41,
16,
-37,
19
] |
Fead, J.
This is appeal in the nature of certiorari to the department of labor and industry.
September 21, 1926, plaintiff sustained an accident while in the employ of defendant. An agreement for compensation was made and approved. June 1, 1928, petition to stop compensation was filed and, on September 17th, was granted as of May 4, 1928. September 29th settlement receipt was filed but not approved.
August 14, 1929, the case was reopened voluntarily by defendant, and compensation paid to January 11, 1930, when another settlement receipt was filed, but it has not been approved by the department.
January 12,1931, plaintiff filed petition for further compensation. At the hearing plaintiff did not appear. His mother and brother testified that plaintiff did not desire to pursue the claim. February 3d the deputy commissioner made an award denying compensation. August 12,1932, plaintiff filed a petition for further compensation, which, after hearing, was denied by the deputy commissioner, but, on appeal, was granted by the board, and plaintiff was awarded compensation from January 11,1930, at the original agreed rate. No showing of a change for the worse in plaintiff’s condition was made upon either petition for further compensation.
Defendant’s principal contention is that, no appeal having been taken from the award of February 3, 1931, denying further compensation, and no change in plaintiff’s condition since then having been shown, the award is res judicata and final.
The settlement receipt was without force to stop compensation because it was not approved by the department. Richards v. Rogers Boiler & Burner Co., 252 Mich. 52; Lacombe v. Birds Eye Veneer Co., 254 Mich. 233. The petition for further compensa tion was, in legal effect, a petition for review of payments. Gallup v. Western Board & Paper Co., 252 Mich. 68. It was not a petition to stop compensation. Denial of a prior petition to review payments is not res judicata of a later one, nor is it an approval of a settlement unless so provided in the order of the department. Shaffer v. D’Arcy Spring Co., 199 Mich. 537.
Award affirmed, with costs.
McDonald, O. J., and Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Clark, J., took , no part in this decision. | [
-19,
-41,
-26,
21,
14,
15,
14,
24,
-21,
-5,
-48,
-5,
61,
-10,
-21,
5,
9,
3,
-16,
12,
-32,
20,
49,
-2,
-8,
-35,
-16,
-15,
-34,
27,
-7,
-17,
-38,
55,
-61,
-19,
-10,
-1,
35,
3,
1,
-18,
-29,
-19,
-30,
-46,
8,
1,
20,
-9,
27,
-31,
-16,
-31,
26,
38,
1,
-7,
15,
-16,
-2,
56,
33,
61,
17,
12,
-2,
-4,
-22,
10,
-65,
26,
14,
-16,
40,
-13,
-6,
18,
-5,
5,
4,
-7,
-2,
-69,
4,
16,
4,
8,
36,
3,
17,
-4,
-26,
2,
9,
36,
-11,
19,
46,
16,
-53,
19,
3,
-13,
18,
-16,
48,
32,
-12,
22,
42,
-12,
-23,
-12,
-26,
-1,
22,
-18,
-8,
5,
57,
-14,
-11,
32,
-21,
38,
2,
18,
27,
36,
-10,
-3,
-26,
28,
15,
1,
48,
-47,
-4,
-23,
-28,
53,
-64,
-56,
-5,
43,
-22,
-19,
15,
-31,
3,
37,
34,
-32,
-11,
12,
76,
-59,
47,
-20,
0,
27,
-26,
9,
1,
-52,
63,
7,
24,
-29,
0,
2,
9,
-57,
61,
-1,
45,
7,
-32,
77,
-25,
5,
21,
-27,
-18,
-9,
-25,
-2,
40,
-55,
-4,
-18,
2,
-20,
-11,
15,
37,
-12,
39,
34,
0,
-38,
12,
5,
-14,
1,
-2,
-50,
43,
34,
-31,
8,
-4,
-33,
10,
5,
42,
0,
8,
-4,
19,
44,
8,
50,
-26,
-6,
-11,
12,
32,
-2,
-81,
36,
19,
-11,
14,
-23,
11,
3,
48,
1,
-7,
-6,
-34,
18,
-57,
10,
-32,
-45,
37,
10,
-8,
31,
-42,
-25,
-4,
-46,
22,
47,
-39,
-9,
-43,
40,
27,
25,
-16,
-31,
-11,
64,
-19,
-32,
11,
-25,
46,
-11,
18,
-67,
-33,
-8,
78,
44,
-83,
11,
4,
-30,
-78,
15,
-4,
-53,
-10,
19,
42,
-55,
-32,
20,
8,
15,
14,
35,
3,
17,
-46,
-23,
-23,
-53,
34,
12,
-58,
-36,
16,
-8,
1,
-14,
37,
5,
26,
-30,
-30,
4,
24,
-29,
6,
19,
-20,
-41,
-30,
-27,
-5,
-20,
-18,
-3,
-41,
-9,
-25,
48,
9,
8,
36,
-15,
1,
20,
32,
65,
24,
7,
-42,
22,
-10,
-60,
79,
52,
-31,
-28,
25,
5,
3,
0,
9,
-19,
-53,
89,
10,
-16,
-16,
-17,
11,
-6,
-16,
-48,
-3,
34,
11,
22,
23,
-25,
-55,
-50,
-17,
-35,
-22,
27,
-34,
-27,
-25,
-5,
-9,
-14,
20,
32,
-39,
2,
-3,
-46,
25,
0,
-11,
62,
43,
6,
-16,
42,
-6,
32,
-21,
17,
5,
8,
8,
-18,
-25,
48,
27,
-11,
-32,
-29,
18,
-47,
50,
11,
23,
-43,
11,
26,
-10,
15,
-4,
-18,
67,
22,
-4,
-7,
-33,
31,
27,
-52,
-27,
28,
-4,
-38,
-70,
-20,
9,
28,
-36,
13,
-16,
43,
-50,
49,
12,
-5,
9,
-22,
13,
56,
29,
14,
-13,
-1,
47,
-61,
0,
6,
1,
53,
20,
-21,
-2,
36,
36,
22,
-7,
-17,
-22,
-12,
12,
-15,
2,
-11,
27,
11,
-38,
53,
-20,
51,
-4,
5,
-39,
-19,
-1,
9,
18,
-42,
-33,
11,
-63,
6,
-19,
-26,
3,
-11,
-40,
-36,
69,
-14,
57,
-17,
-17,
-45,
19,
12,
-42,
7,
-12,
-22,
-15,
45,
2,
2,
13,
39,
3,
-26,
-26,
13,
-30,
-6,
-43,
-33,
44,
0,
25,
15,
31,
-57,
2,
19,
-9,
7,
-37,
14,
-6,
-3,
-12,
-22,
-8,
18,
-37,
15,
42,
6,
20,
-26,
-17,
-3,
-51,
-8,
39,
7,
0,
-15,
-32,
-8,
5,
35,
-9,
-11,
8,
1,
47,
56,
-11,
27,
40,
29,
17,
21,
-35,
-5,
0,
0,
19,
-14,
32,
-15,
6,
-40,
-3,
9,
29,
2,
-8,
2,
15,
-9,
0,
20,
-11,
14,
-10,
-19,
35,
29,
-53,
-31,
-5,
33,
-48,
62,
24,
-71,
-19,
0,
-47,
-19,
-25,
-17,
-6,
4,
48,
-11,
15,
15,
-28,
-42,
-58,
27,
24,
-7,
-50,
43,
45,
6,
24,
-33,
4,
56,
-24,
-3,
-17,
-9,
22,
18,
29,
16,
-36,
-29,
-44,
0,
-14,
-17,
-18,
26,
-34,
-54,
-20,
23,
57,
-21,
-10,
-11,
6,
0,
-26,
-55,
-57,
2,
10,
20,
40,
40,
36,
5,
61,
-8,
17,
-27,
12,
41,
8,
9,
2,
19,
7,
21,
-16,
33,
28,
16,
-17,
-39,
-17,
71,
-27,
-18,
-14,
9,
2,
-2,
2,
-12,
-11,
-8,
-17,
6,
-32,
-5,
0,
-43,
54,
0,
-28,
6,
-7,
15,
33,
67,
16,
-35,
-6,
-69,
-51,
-59,
30,
21,
4,
28,
30,
-49,
-26,
-6,
-8,
11,
3,
22,
-5,
-43,
2,
7,
8,
-33,
32,
-20,
31,
23,
15,
-23,
65,
38,
-11,
-11,
-9,
-50,
-41,
58,
13,
9,
-7,
-49,
-13,
24,
29,
-13,
-13,
26,
-4,
33,
-6,
19,
-16,
-7,
-21,
-1,
41,
-55,
46,
-11,
5,
-24,
37,
13,
-7,
-42,
17,
23,
-15,
-74,
-30,
-45,
-16,
-34,
-40,
-63,
-21,
-42,
41,
-7,
22,
-63,
-20,
4,
-13,
-21,
24,
14,
22,
16,
14,
6,
-19,
-18,
28,
-57,
-40,
16,
29,
-7,
28,
0,
-12,
-39,
15,
43,
-22,
-22,
30,
-85,
45,
-1,
-15,
0,
-2,
-24,
-39,
73,
19,
-22,
16,
-19,
2,
-4,
39,
-22,
-6,
1,
9,
-18,
-39,
26,
30,
15,
-19,
-68,
-9,
34,
7,
8,
-14,
-50,
-8,
-10,
47,
42,
-41,
-22,
10,
-8,
-53,
-53,
39,
25,
55,
-13,
-3,
-54,
2,
28,
0,
12,
12,
-26,
12,
-71,
69,
-24,
47,
39,
17,
-1,
-27,
37,
22,
11,
18,
35,
1,
-65,
3,
20,
20,
38,
0,
13,
55,
20,
8,
13,
-1,
-17,
4,
75,
-24,
6,
8,
-38,
9,
-21,
6,
2,
8,
21,
47,
12,
-68,
-27,
0,
-8,
4,
47,
-27,
4,
7,
-33,
16,
24,
21,
21,
-5,
-23,
-21,
-18,
-5,
-4,
-25,
-40,
-42,
-34,
-21,
24,
2,
19,
35,
-33,
23,
-7,
-3,
-43,
-7,
10,
3,
31,
-3,
5,
-16,
11,
38,
22,
16,
-16,
-16,
41,
37,
-6,
-51,
-30,
20,
-24,
5,
-33,
10,
-22,
52,
-49,
11,
-15,
-26,
-11,
31,
-37,
-4,
3,
9,
13,
13,
-6,
36,
-39,
12,
-8,
24,
24,
19,
36,
15,
11,
0,
3,
33,
11,
5,
23,
2,
1,
-51,
43,
26,
35,
-40,
-41,
-43,
-9,
49,
-22,
19,
-18
] |
Sharpe, J.
The plaintiff was appointed receiver of the First National Bank of Allegan in May, 1930. The defendant Barker was a stockholder and the cashier of that bank in the years 1924 and 1925. The defendant Moore during those years was engaged in “law business, real estate and investments” in that city.
It is the claim of the plaintiff, as set forth in his declaration, that the defendants conspired together to cheat and defraud the bank by the purchase for it of certain mortgages which were inadequate securities for the money paid for them by the bank, and in the purchase of which both of the defendants received certain commissions. The plaintiff had verdict and judgment in the sum of $1,718.36, from which the defendant Moore has taken an appeal.
There is some dispute in the testimony, but in our opinion the jury were justified in finding that Carl Bambadt was the owner of 90 acres of land in Allegan county, subject to a mortgage thereon. He sold it in 1924 to Charles and Emma Slesdet, taking a second mortgage thereon for $2,400 as a part of the purchase price. He approached Moore with a view of disposing of this mortgage. Moore spoke to Barker about it, and they together went and looked over the farm, and the purchase was made for $1,800. The mortgage was assigned to Barker, who gave Bambadt a cashier’s check on the bank therefor. In consummation of the deal, Barker gave Slesdet a cashier’s check for $220, caused to be credited to Moore’s account in the bank by deposit slip $220, and to his own account the sum of $220. The extra $60 seems to have been accrued interest. The mortgage and note were entered on the bank’s books as its property, and the jury might well have found that Moore knew that Barker was acting for the bank in the transaction.
In March, 1925, Rosa Ridgley owned an 80-acre farm, which she offered to sell for $2,000. Lee and Nellie Moore (not related to the defendant) were willing to purchase it, but were without funds. They conferred with the defendant Moore, who took the matter up with Barker. It was finally arranged that Mrs. Ridgley should deed to the Moores and they give a note and mortgage thereon to the bank for $2,700, and this was done. A certificate of deposit for $2,000, which she afterwards cashed, was issued to Mrs. Ridgley, and, by deposit slips, $350 was credited to the accounts of Barker and Moore.
The bank of which plaintiff is receiver'was a national bank, organized under the provisions of the Federal statutes relating thereto.
“Any national banking association * * * may, make loans secured by improved and unincumbered farm land * * * nor shall the amount of any such loan * * * exceed 50 per centum of the actual value of the property offered as security.” 12 USCA, §371.
“Any officer, director, agent, or employee of any Federal reserve bank, or of any member bank * * * who * * * wilfully misapplies any of the moneys, funds, or credits of such Federal reserve bank or member bank, * * * and every person who, with like intent, aids or abets any officer, director, agent, employee , * * * in any violation of this section shall be deemed guilty of a misdemeanor.” 12 USCA, § 592.
“Except as herein provided, any officer, director, employee, or attorney of a member bank who stipulates for or receives or consents or agrees to receive any fee, commission, gift, or thing of value from any person * *• * for procuring or endeavoring to procure for such person, * * * or for any other person * * * any loan from or the purchase or discount of any paper, note, * * * shall be deemed guilty of a misdemeanor.” 12 USCA, § 595.
It is elementary that an officer of a corporation may not make a private profit for himself in the discharge of his official duties. The liability of Barker to account for the sums thus unlawfully withdrawn by him from the funds of the bank is clearly established. Sparrow v. E. Bement & Sons, 142 Mich. 441 (10 L. R. A. [N. S.] 725); German Corporation v. Negaunee German Aid Society, 172 Mich. 650; Garber v. Town, 208 Mich. 1; 14A C. J. p. 122; 7 R. C. L. p. 458. But counsel for Moore insist that no such relation of trust existed between him and the bank as rendered him liable to it for the moneys thus withdrawn, and that he had a right to make a personal profit in the sale of the securities to the bank.
Barker’s action was certainly a wilful misapplication of the funds of the bank to the extent to which the value of the securities was reduced, and Moore’s participation therein, by acceptance of the sums deposited to his credit in accordance with their agreement therefor, must be treated as aiding and abetting him with a like intent, within the meaning of the statute above quoted. The statute is but expressive of the general rule of law which should be applied to the facts presented. In Old Mortgage & Finance Co. v. Pasadena Land Co., 241 Mich. 426, 434, 435, this court quoted with approval the following from the opinion of the trial court:
“If a third person join with a corporate officer in dealing with the corporation, with knowledge that he is such officer, the contract may be set aside as to him as well as the corporate officer. This is upon the theory that where a stranger participates with the officer of a corporation in the commission of an act of manifest bad faith or breach of duty to it, he, equally with the officer, commits a wrong, and ought not to derive profit from it.”
In North American Coal & Coke Co. v. O’Neal, 82 W. Va. 186, 192 (95 S. E. 822, 825), it was said:
“Them is nothing disclosed in the facts of this case to take it out of the general rule that promoters or directors of a corporation, or those colluding with them, who, in breach of their trust and in fraud of the corporation, take to themselves secret profits, are liable to account for the same to the corporation. ’ ’
Counsel for the appellant requested the court to charge that, in case they found for the plaintiff, the measure of his damages “is the difference in value at the time, and the amount paid by the bank.” Counsel for plaintiff urge that they were prevented from submitting proof of actual loss to the bank by the objection of defendant’s counsel, sustained by the court. Irrespective of the effect of such action, we find no error in the instruction given that the measure of plaintiff’s damages was the loss it sustained by the wrongful act of Barker in using the money of the bank in the way he did, if Moore at that time knew that it was being used for that purpose.
It is urged that the claim under the Rambadt mortgage was barred by the statute of limitations (3 Comp. Laws 1929, § 13976). This statute limits the time within which personal actions such as this may be brought to six years after the cause of action shall accrue. The money of the bank was used in the purchase of this mortgage on October 21, 1924. This action was not begun until March 10, 1931, more than six years thereafter.
Section 13983 reads as follows:
“If any person who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter.”
While a careful audit of the books of the bank would doubtless have-disclosed the facts on which plaintiff now relies for recovery, the evidence submitted shows that it was not discovered by the officers of the bank before the receiver was appointed. It was, we think, the purpose of Barker to have the entries on the books made in a way to conceal from its other officers and directors the nature of the transaction, and such act on his part was a fraudulent concealment thereof, for which, under the circumstances, Moore is chargeable as well as himself. ,
Counsel for the plaintiff urge that, on the undisputed proof, the verdict should have been for $1,798.45 instead of $1,718.36, as rendered. As no appeal was taken in his behalf, the amount thereof may not be changed in this court.
The judgment is affirmed.
McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, C. J., did not sit. | [
31,
39,
4,
-24,
-54,
40,
35,
-9,
1,
-6,
33,
-17,
22,
28,
-4,
-19,
-3,
-22,
0,
-28,
15,
-33,
-13,
-1,
-7,
-24,
-27,
-42,
-9,
0,
18,
10,
2,
11,
1,
-25,
20,
29,
1,
-6,
-45,
44,
30,
49,
-4,
-2,
23,
-39,
17,
-25,
22,
-21,
50,
-23,
-41,
-34,
-5,
22,
-36,
-23,
25,
-27,
28,
40,
21,
-27,
0,
-13,
10,
20,
16,
19,
10,
-56,
33,
-32,
-20,
18,
-39,
-63,
-3,
-54,
39,
-25,
-46,
29,
5,
6,
-36,
45,
-16,
37,
11,
53,
50,
-8,
44,
41,
40,
32,
-17,
-13,
-36,
0,
22,
10,
-45,
-35,
-30,
42,
-27,
0,
55,
35,
5,
-42,
-83,
19,
43,
14,
-12,
19,
-14,
-19,
30,
36,
-63,
-23,
13,
-6,
2,
5,
-22,
39,
-34,
-34,
-12,
-27,
-18,
-43,
-5,
30,
-17,
-17,
-10,
30,
-45,
0,
5,
23,
-66,
-20,
41,
55,
44,
-55,
-3,
-19,
7,
-16,
-3,
-31,
-22,
-6,
-66,
-9,
19,
0,
-4,
-34,
-5,
62,
-39,
-7,
3,
-14,
13,
-8,
-2,
-18,
38,
18,
-2,
26,
-23,
-23,
34,
-17,
14,
26,
28,
-26,
3,
3,
-22,
10,
24,
-51,
0,
-37,
25,
-32,
36,
7,
9,
-36,
42,
2,
36,
22,
-8,
12,
45,
0,
-54,
43,
-11,
-22,
26,
-37,
-13,
0,
-12,
24,
-63,
-26,
42,
-4,
-2,
-18,
-26,
-39,
-30,
36,
-26,
-14,
39,
-13,
13,
0,
-87,
-46,
38,
-8,
-20,
-11,
-29,
-39,
-35,
26,
-30,
35,
-35,
50,
-26,
65,
14,
-36,
0,
22,
-21,
12,
-48,
28,
16,
-16,
-21,
29,
-38,
-14,
-13,
-27,
25,
53,
-21,
-68,
21,
39,
-31,
5,
77,
-5,
-5,
28,
41,
7,
6,
1,
15,
34,
39,
-1,
1,
3,
51,
28,
9,
-54,
76,
-4,
-25,
6,
-19,
-15,
34,
32,
21,
-34,
-48,
-4,
38,
-31,
0,
17,
57,
-5,
-22,
4,
-32,
7,
22,
-3,
-19,
10,
3,
0,
35,
-54,
-34,
16,
-13,
10,
-11,
-14,
-33,
-12,
6,
-1,
3,
-27,
-16,
5,
9,
-5,
42,
-16,
-13,
51,
-13,
-15,
-61,
-31,
-13,
43,
21,
-45,
40,
35,
2,
28,
8,
-12,
10,
17,
5,
31,
-19,
-40,
-6,
22,
44,
6,
4,
2,
-4,
48,
-29,
-27,
-5,
1,
-2,
36,
44,
37,
-3,
-15,
52,
-41,
-22,
53,
-53,
27,
18,
19,
-39,
-40,
17,
-23,
-8,
-74,
-37,
-4,
-1,
5,
-50,
12,
-27,
-4,
6,
24,
6,
-42,
-2,
35,
-26,
-18,
21,
-16,
33,
5,
19,
42,
10,
-65,
8,
-9,
25,
3,
-12,
-1,
16,
42,
22,
-46,
28,
-20,
-38,
11,
-22,
5,
19,
35,
-17,
12,
-30,
-11,
-30,
-35,
59,
31,
-4,
-8,
3,
2,
-29,
-18,
24,
-19,
17,
-61,
59,
-20,
37,
-31,
-17,
-2,
-2,
-18,
8,
14,
-8,
20,
32,
-74,
26,
22,
51,
9,
0,
11,
-8,
-5,
-6,
11,
-32,
-67,
-45,
-51,
-1,
30,
60,
-38,
-6,
12,
2,
59,
36,
2,
-12,
-17,
-14,
-12,
62,
-44,
-1,
4,
7,
-58,
-12,
30,
-30,
-6,
-23,
50,
0,
-28,
2,
16,
-8,
24,
32,
-10,
-23,
-4,
-11,
61,
32,
45,
3,
-41,
-6,
-26,
-40,
-56,
37,
-11,
3,
-18,
-3,
-4,
-18,
-10,
20,
42,
-55,
-1,
13,
-24,
55,
-23,
34,
-23,
5,
-29,
3,
28,
-15,
-61,
-14,
-5,
-26,
-15,
5,
-18,
58,
-35,
7,
-12,
-16,
10,
0,
1,
38,
8,
11,
7,
-13,
-19,
-48,
66,
-24,
0,
-53,
-15,
8,
40,
17,
31,
-24,
5,
23,
-12,
38,
-5,
17,
-20,
4,
-7,
26,
-27,
8,
40,
-67,
23,
-4,
-44,
-44,
24,
-26,
3,
6,
13,
-8,
-11,
59,
18,
14,
-28,
-37,
-25,
13,
21,
8,
-32,
41,
47,
21,
17,
-6,
7,
1,
-18,
32,
20,
-12,
-41,
-4,
-10,
-34,
-9,
-41,
33,
-19,
0,
51,
21,
-10,
-36,
22,
-13,
-19,
0,
30,
-28,
12,
-64,
28,
-25,
-26,
-39,
64,
21,
12,
63,
5,
-6,
40,
5,
6,
5,
13,
-28,
57,
-7,
49,
-15,
-10,
13,
1,
9,
31,
-16,
-32,
1,
-11,
-3,
8,
23,
-30,
7,
0,
4,
-59,
-11,
13,
-51,
4,
-4,
-26,
-34,
48,
-40,
5,
17,
14,
-8,
36,
-27,
-42,
29,
-29,
0,
4,
23,
-33,
11,
-17,
-5,
12,
10,
1,
-58,
46,
-3,
27,
-1,
73,
33,
-6,
-6,
33,
8,
-22,
31,
-4,
12,
-23,
-10,
-41,
10,
5,
4,
-11,
-21,
-10,
-12,
47,
8,
2,
31,
-19,
23,
20,
16,
42,
34,
18,
-9,
-32,
-46,
-16,
59,
-7,
-21,
1,
-3,
59,
-43,
3,
6,
-25,
-2,
-88,
8,
3,
-10,
19,
-41,
25,
-33,
8,
-13,
13,
-36,
41,
-36,
50,
19,
66,
48,
-5,
0,
-22,
8,
-25,
27,
55,
-23,
-2,
-26,
-10,
11,
11,
9,
-11,
9,
15,
19,
-1,
30,
2,
13,
49,
-48,
8,
-4,
-27,
-3,
-40,
0,
8,
13,
-14,
-36,
-41,
-14,
-8,
-1,
-56,
24,
-24,
4,
-21,
35,
22,
11,
-2,
-14,
-7,
27,
-13,
-46,
2,
-2,
65,
-1,
-20,
-2,
-45,
5,
-19,
-44,
-30,
-10,
-76,
-17,
4,
38,
-10,
-13,
10,
-13,
-42,
3,
-31,
-19,
9,
14,
-16,
22,
-42,
19,
-28,
-3,
6,
24,
11,
-16,
43,
-8,
-44,
-41,
20,
75,
-27,
10,
15,
9,
-16,
36,
-46,
16,
-13,
-8,
9,
15,
-29,
-12,
17,
-57,
5,
-1,
10,
10,
20,
-54,
-9,
25,
20,
38,
-17,
-22,
-45,
-61,
-73,
42,
3,
-32,
73,
-15,
-22,
-13,
-7,
29,
10,
-5,
3,
22,
-1,
15,
-16,
24,
-22,
-6,
-36,
18,
-6,
-37,
16,
0,
13,
2,
-18,
0,
-5,
-27,
10,
-6,
-24,
27,
25,
-17,
-27,
54,
-25,
-41,
-56,
-44,
0,
3,
-35,
28,
21,
-35,
30,
-26,
17,
8,
11,
-8,
26,
-63,
4,
-11,
41,
-13,
44,
19,
31,
0,
-15,
11,
-9,
96,
28,
-36,
23,
2,
-18,
34,
7,
28,
39,
37,
-24,
-5,
-20,
1,
-25,
-44,
-5,
26,
15,
20,
27,
-21,
-9,
53,
17,
-41,
-31,
30,
29,
-7,
-34,
1,
0,
-4,
-32,
5,
12,
36,
-37,
82
] |
McDonald, J.
This bill was filed by Joseph Labeikes to set aside deeds of property in Ecorse township, Wayne county, Michigan, on the ground of fraud. After it was filed Mr. Labeikes died. Angeline Szastakauskas was appointed administratrix of the estate. She filed an amended bill alleging that Joseph Labeikes desired to buy the property in question, which consisted of a vacant lot, and, being a Lithuanian unable to read or write the English language, requested defendant, Philomena Warner, to transact the business for him; that he gave her the money; that she purchased the lot but took the deed in her own name and thereafter re fused to reconvey it to him; that after this suit was commenced she deeded the lot to defendant William Budwiedes, whom she afterwards married ; that the deed to Budwiedes was without consideration and given for the sole purpose of placing the property beyond the reach of the plaintiff.
The defendants answered the bill, denied the allegations of fraud, and claimed that the property was purchased by Mrs. Warner with her own money, and the deed to Budwiedes was. given in good faith and for a valuable consideration.
At the hearing the trial court entered a decree dismissing the bill. Subsequently, on motion, this decree was set aside, and, after the taking of further testimony, a decree was filed granting the relief prayed for by the plaintiff.’ From this decree the defendants have appealed.
The issue involves merely a question of fact. There was a sharp conflict in the testimony in support of and in dispute of the allegations in the bill. Mrs. Warner was the principal witness for the defendant. Of her testimony the trial court said:
“I want to say now, as I said on the other hearing, in substance, that I have not full faith in what Mrs. Warner says about the transaction. That is, she was capable of manipulating such a transaction if she set out to do it. I think the circumstances were such that would have permitted her to have done it. * * * I think it has been made more clear now than it was before on behalf of Mrs. Warner that she did not have the funds and money to buy this property. At least, there has been no reasonable explanation given on her part as to where she could have obtained this money or had it. ’ ’
Mrs. Varnis was the principal witness for the plaintiff. Of her testimony the court said:
“I cannot understand why Anna Yarnis should come here and testify to these conversations or where she would get the substance of those conversations if they did not occur. I can hardly believe that she came here and made that all up. * * * I cannot believe that, and I did not see anything in her manner or appearance to infer that. I did not notice anything in the cross-examination to justify that conclusion.”
The appearance, manner, and demeanor of witnesses are not reflected in the printed record of the trial, but they are often the deciding factors in determining their credibility. In this respect the trial judge, in finding the facts, possesses a superior advantage over the appellate court. But we have read the record, and, after careful consideration of the testimony, are agreed that the trial court reached a correct conclusion.
The decree is affirmed, with costs to the plaintiff.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-4,
-11,
-8,
35,
-31,
-3,
35,
6,
-16,
16,
-24,
-1,
58,
59,
-43,
13,
23,
-2,
25,
13,
20,
-27,
-13,
20,
-48,
1,
40,
-18,
-3,
-11,
-30,
7,
-29,
-25,
21,
-6,
28,
22,
-21,
13,
-13,
6,
-12,
5,
6,
7,
8,
-4,
18,
31,
14,
-42,
24,
4,
-11,
-26,
-12,
-27,
-5,
-49,
-22,
-57,
39,
-33,
3,
-2,
19,
-3,
-23,
-73,
27,
22,
-6,
13,
20,
-4,
-73,
-16,
24,
-5,
-29,
-47,
0,
8,
-4,
-31,
-44,
-54,
-23,
4,
-1,
-32,
-16,
15,
21,
7,
80,
65,
33,
24,
-28,
25,
1,
6,
21,
12,
-21,
-11,
-9,
11,
2,
-58,
46,
-15,
30,
0,
-47,
-19,
-3,
-48,
-7,
12,
0,
-34,
-19,
-16,
-7,
15,
7,
6,
11,
-12,
-34,
8,
-24,
-4,
-9,
-19,
15,
-27,
17,
15,
-5,
-22,
2,
-31,
-12,
-36,
12,
-20,
-61,
0,
12,
14,
11,
-15,
18,
-28,
55,
-10,
-1,
-27,
-16,
-57,
-30,
-46,
1,
8,
7,
-22,
29,
-19,
-59,
11,
26,
16,
4,
-24,
-36,
-13,
23,
56,
0,
-1,
-16,
-40,
24,
-66,
18,
-41,
47,
-7,
38,
16,
3,
72,
-11,
37,
-9,
-7,
15,
-74,
-43,
-7,
46,
-30,
6,
6,
0,
39,
-16,
-5,
-9,
-18,
-5,
-12,
28,
-29,
-28,
-44,
72,
-2,
1,
23,
-50,
-35,
46,
-24,
2,
5,
29,
28,
11,
-4,
-38,
20,
-3,
-45,
-31,
41,
0,
5,
28,
-10,
-16,
0,
-17,
11,
3,
-2,
-74,
-23,
-58,
0,
10,
29,
16,
-1,
1,
-7,
-24,
4,
-11,
-17,
19,
34,
18,
0,
-53,
-7,
46,
-27,
45,
-23,
-16,
16,
-12,
-40,
-18,
29,
65,
-13,
-26,
16,
-25,
54,
-36,
44,
15,
7,
-27,
57,
-49,
-1,
14,
44,
16,
-53,
46,
-10,
10,
11,
22,
0,
8,
-42,
33,
-18,
-2,
8,
-48,
6,
-13,
12,
-4,
-4,
-33,
-44,
5,
-10,
24,
-39,
-58,
-23,
40,
3,
20,
-18,
-20,
65,
7,
0,
24,
1,
20,
-38,
40,
-15,
-49,
-52,
21,
-11,
0,
3,
1,
10,
22,
48,
-62,
-46,
-20,
-36,
-23,
16,
-64,
-13,
32,
14,
31,
-5,
8,
8,
-20,
0,
11,
-44,
-4,
-16,
5,
38,
-44,
5,
-63,
11,
11,
15,
-30,
-17,
-2,
-19,
-25,
-17,
25,
34,
27,
53,
14,
-26,
-47,
16,
-14,
8,
26,
33,
38,
-50,
-29,
0,
-55,
-9,
20,
33,
4,
84,
-60,
18,
-20,
12,
-4,
11,
2,
-40,
-8,
-17,
4,
13,
24,
-21,
53,
52,
-25,
4,
13,
-15,
2,
-23,
-34,
13,
52,
-45,
-16,
46,
3,
27,
88,
0,
-44,
7,
-22,
29,
73,
23,
-3,
-16,
11,
57,
-20,
-36,
-4,
-1,
19,
3,
-57,
-40,
44,
26,
41,
-26,
-15,
-14,
-14,
-14,
23,
0,
33,
-33,
6,
-29,
35,
46,
25,
15,
-6,
4,
-40,
-26,
-19,
30,
0,
-7,
10,
-3,
3,
9,
-31,
-7,
-14,
10,
-44,
-7,
47,
-57,
-4,
31,
-23,
-62,
8,
4,
36,
32,
9,
42,
42,
18,
-15,
3,
-3,
6,
-2,
24,
16,
14,
47,
26,
-24,
83,
52,
-15,
59,
14,
5,
-19,
-20,
-4,
11,
0,
46,
50,
-16,
-14,
-17,
-9,
1,
-17,
0,
-19,
43,
-20,
-25,
-7,
-20,
16,
-33,
11,
43,
5,
32,
-45,
34,
30,
-19,
-37,
33,
2,
16,
-2,
42,
-41,
-60,
-15,
-53,
-57,
-20,
-46,
23,
-32,
-4,
-63,
11,
-26,
-40,
-10,
42,
-3,
25,
-13,
-19,
-23,
-39,
69,
-21,
-52,
23,
-30,
26,
79,
34,
22,
-9,
-30,
-10,
-38,
-1,
15,
43,
-42,
24,
-7,
-13,
-12,
-38,
-61,
-41,
-27,
28,
-48,
3,
18,
14,
-10,
-14,
17,
24,
19,
14,
44,
-27,
-47,
-24,
65,
60,
7,
6,
-4,
-2,
-9,
37,
18,
3,
39,
20,
-32,
-7,
24,
-24,
22,
21,
-5,
1,
-5,
-53,
-51,
-50,
19,
-8,
9,
-27,
55,
-52,
-29,
1,
27,
1,
8,
4,
-2,
31,
23,
52,
-29,
56,
-12,
-31,
19,
36,
-31,
59,
-13,
5,
7,
-18,
14,
33,
-18,
4,
-3,
-12,
-16,
24,
34,
4,
-23,
6,
32,
-22,
-1,
-2,
19,
-12,
-18,
-40,
-23,
11,
-12,
19,
-5,
1,
-10,
25,
40,
44,
53,
-49,
24,
-41,
14,
11,
-4,
-27,
-19,
-9,
16,
13,
-29,
-39,
31,
40,
6,
7,
-41,
-36,
-70,
-14,
-60,
-18,
-49,
40,
-13,
21,
29,
17,
47,
-32,
-17,
-9,
20,
-13,
-26,
4,
-21,
-12,
6,
-38,
-37,
9,
-35,
24,
7,
-1,
-3,
11,
40,
-2,
54,
0,
10,
-42,
-11,
7,
9,
-37,
63,
-36,
-16,
16,
-23,
-18,
-12,
10,
-2,
-45,
0,
-44,
21,
7,
16,
38,
-14,
45,
-18,
9,
19,
-32,
-5,
57,
-39,
39,
-16,
13,
17,
0,
25,
14,
23,
-31,
39,
-4,
-32,
8,
-41,
16,
13,
-46,
90,
4,
19,
-80,
49,
-34,
13,
-4,
28,
13,
-27,
-66,
-12,
19,
25,
4,
-20,
20,
10,
-4,
-4,
-28,
-55,
-3,
-26,
-62,
-14,
1,
-13,
-36,
-2,
45,
-45,
30,
5,
-34,
-55,
8,
4,
-25,
39,
19,
-25,
10,
8,
-10,
-28,
33,
-13,
38,
-43,
-21,
4,
9,
4,
12,
26,
34,
-13,
-27,
-49,
-8,
-67,
4,
14,
17,
-5,
6,
19,
-39,
36,
63,
-4,
28,
-27,
-41,
-2,
-4,
84,
-82,
3,
-34,
0,
18,
-30,
-53,
3,
-40,
23,
-10,
-9,
-15,
3,
-4,
-39,
52,
22,
17,
26,
-15,
-46,
-6,
21,
52,
60,
9,
19,
0,
-22,
-3,
-16,
-56,
12,
-5,
21,
-37,
31,
13,
-18,
1,
44,
21,
1,
21,
-5,
-37,
52,
-1,
25,
-42,
-1,
7,
-14,
3,
-30,
27,
-3,
36,
18,
-5,
33,
17,
8,
32,
16,
22,
7,
1,
-12,
50,
28,
-2,
-6,
18,
-44,
-15,
33,
25,
17,
-19,
29,
4,
-19,
-14,
17,
19,
0,
-17,
-18,
-37,
-7,
-38,
-49,
70,
23,
3,
-25,
31,
-18,
-13,
71,
-2,
5,
40,
-27,
-23,
-23,
16,
8,
-7,
-11,
6,
-12,
-1,
-27,
-41,
-35,
47,
13,
8,
-13,
0,
9,
56,
-9,
19,
59,
-29,
-2,
67,
-4,
16,
-3,
35,
9,
19,
-6,
-31,
-7,
29,
97
] |
Potter, J.
Plaintiff and defendant were formerly husband and wife. They were divorced in 1926. At that time they had one child. The court, in the decree entered, provided defendant was to pay to the clerk of the court for the care, maintenance, support, and education of the infant child, the sum of $8 a week until she should attain the age of 16 years. She is now 16 years of age. Prior to the time the daughter became 16 years of age, plaintiff filed a petition in the circuit court asking for a modification of the decree. The matter was brought on before Judge Brown before whom the case was originally tried. The testimony proceeded upon the theory the intention of the trial court before whom the case was originally tried was that defendant should pay alimony until the child should attain the age of 18 years, instead of 16 years. The trial court modified the decree so as to require defendant to pay alimony until the daughter should attain the age of 18 years, but reduced the amount of alimony from $8 a week to $7 a week.
The original decree was warranted by 3 Comp. Laws 1929, § 12738, and its revision and alteration by 3 Comp. Laws 1929, § 12739. The matter is one resting peculiarly within the discretion of the trial' court who reserved jurisdiction to make further modifications in accordance with the facts. We will not disturb his order, which is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-7,
15,
-13,
21,
-7,
31,
-19,
-4,
14,
-29,
9,
-23,
32,
1,
26,
-6,
27,
-28,
4,
-7,
-23,
48,
14,
18,
34,
59,
51,
8,
-22,
2,
-8,
-3,
-37,
30,
-42,
3,
7,
38,
48,
-1,
32,
-64,
-24,
69,
-44,
-25,
39,
-12,
-8,
22,
-25,
-60,
24,
-7,
43,
21,
28,
-37,
-41,
8,
-21,
9,
-23,
39,
21,
4,
-1,
62,
-8,
9,
-22,
-23,
-37,
-4,
29,
-36,
34,
4,
-3,
55,
-13,
-36,
-13,
-39,
4,
-29,
-12,
36,
-30,
14,
-57,
27,
-50,
11,
-29,
65,
4,
-7,
61,
-7,
-8,
-42,
12,
20,
16,
64,
-21,
-37,
-49,
60,
64,
-19,
54,
-13,
-41,
29,
-61,
-9,
-29,
-65,
36,
55,
17,
-5,
31,
-13,
-51,
-32,
5,
-56,
-45,
5,
0,
-20,
25,
0,
2,
-18,
-7,
-27,
-16,
-49,
10,
55,
35,
22,
-28,
-20,
-45,
-22,
0,
-7,
25,
48,
40,
3,
-16,
-21,
21,
-82,
-7,
4,
-19,
0,
-30,
-15,
-20,
33,
-10,
27,
25,
21,
11,
4,
8,
18,
5,
-35,
-26,
10,
-26,
44,
-22,
-18,
22,
49,
-25,
-11,
-30,
7,
-43,
-15,
1,
-6,
15,
19,
53,
0,
13,
10,
-26,
0,
55,
14,
9,
-11,
-12,
22,
-24,
12,
10,
24,
1,
-8,
-52,
0,
-34,
23,
-23,
53,
-2,
-16,
19,
0,
-70,
-51,
-35,
-20,
34,
-2,
12,
43,
7,
7,
-15,
40,
2,
2,
-14,
71,
-16,
-16,
-28,
-40,
12,
63,
-24,
14,
-29,
9,
-21,
71,
-41,
95,
17,
10,
-7,
25,
17,
6,
-22,
32,
6,
-32,
30,
-4,
28,
50,
39,
40,
19,
-51,
35,
-16,
-15,
0,
-45,
3,
-29,
-16,
-55,
16,
-21,
37,
2,
3,
-27,
3,
55,
42,
17,
-16,
52,
-20,
33,
2,
-18,
7,
18,
-25,
33,
-25,
36,
10,
-19,
-6,
-13,
-14,
4,
-48,
-24,
-13,
2,
-2,
-5,
-4,
-50,
-14,
10,
-33,
15,
51,
-21,
59,
-7,
1,
68,
-60,
-34,
10,
-37,
24,
13,
7,
36,
7,
-1,
35,
-20,
22,
43,
29,
61,
47,
11,
-3,
20,
-18,
0,
29,
-15,
29,
52,
0,
-51,
-18,
-7,
-61,
-26,
3,
-8,
-13,
38,
-64,
9,
34,
55,
-15,
-1,
27,
22,
13,
-40,
9,
26,
-6,
21,
52,
32,
18,
-46,
-5,
-7,
-4,
47,
37,
-14,
14,
-28,
-57,
-11,
-16,
18,
-16,
18,
-4,
23,
27,
3,
-8,
-26,
-28,
10,
-26,
4,
21,
-22,
1,
-8,
11,
11,
5,
23,
56,
23,
-15,
24,
-58,
-14,
-10,
-32,
-15,
34,
-28,
-14,
-11,
15,
-57,
-19,
-9,
-23,
29,
-49,
-12,
48,
-34,
-32,
12,
-22,
38,
5,
46,
35,
41,
21,
17,
-23,
-10,
69,
-58,
76,
-29,
24,
10,
39,
-75,
-23,
38,
-46,
-45,
3,
50,
-6,
5,
1,
-31,
-70,
20,
-24,
15,
-63,
4,
-11,
15,
57,
15,
-4,
-9,
9,
49,
-8,
-9,
-104,
5,
32,
-30,
-18,
-43,
-19,
-9,
5,
-78,
-62,
17,
25,
-2,
-46,
4,
-62,
8,
-13,
-22,
47,
-40,
44,
-47,
-19,
-16,
-11,
-19,
-31,
-6,
17,
-20,
21,
-39,
13,
25,
1,
51,
16,
25,
27,
-15,
-7,
16,
20,
4,
-39,
8,
37,
46,
-25,
20,
-17,
8,
-17,
-14,
0,
-11,
-25,
5,
10,
26,
0,
-7,
10,
15,
-32,
4,
41,
-12,
-6,
8,
13,
17,
2,
27,
-10,
-56,
31,
5,
-20,
-7,
38,
-29,
4,
-21,
-4,
34,
18,
-16,
-25,
47,
10,
21,
-7,
28,
-21,
5,
26,
15,
-42,
-31,
-18,
-37,
9,
26,
33,
-16,
-26,
-20,
0,
12,
25,
-49,
27,
-38,
2,
-12,
4,
41,
-25,
-14,
4,
13,
-21,
52,
-21,
-22,
26,
7,
-19,
-24,
79,
-15,
-17,
-16,
-25,
-1,
-27,
-27,
-3,
-23,
41,
-8,
-11,
6,
-33,
10,
0,
-15,
28,
-16,
12,
10,
7,
9,
18,
-31,
37,
47,
10,
12,
-14,
4,
10,
-15,
-36,
-52,
14,
56,
14,
-26,
6,
-33,
23,
-77,
-33,
13,
-18,
-33,
-16,
20,
44,
29,
21,
64,
-16,
-33,
-60,
-3,
15,
66,
50,
17,
-40,
52,
28,
-30,
-16,
0,
1,
-11,
-49,
2,
35,
0,
-15,
-9,
67,
-34,
2,
27,
5,
25,
30,
74,
-24,
7,
-5,
-3,
-21,
-37,
-45,
-2,
-23,
46,
9,
-14,
-56,
12,
-13,
-6,
-11,
-39,
1,
-9,
-45,
-44,
-18,
31,
-12,
11,
-5,
33,
27,
-3,
-11,
-24,
32,
28,
-15,
-13,
19,
7,
-44,
-42,
2,
-54,
34,
-21,
-42,
-13,
-40,
43,
39,
1,
-54,
55,
10,
4,
19,
12,
-23,
28,
48,
5,
-11,
-18,
-23,
19,
43,
43,
-15,
-15,
-16,
-11,
9,
-22,
-26,
-2,
17,
15,
-5,
-41,
-29,
24,
-5,
-61,
21,
7,
18,
-3,
20,
-67,
86,
-52,
29,
41,
-13,
-36,
38,
-22,
27,
55,
-39,
15,
41,
-77,
34,
46,
22,
3,
-19,
29,
-3,
-39,
-34,
-6,
-7,
8,
22,
-8,
-61,
-33,
-17,
6,
-15,
1,
10,
12,
-7,
-7,
32,
-26,
-26,
11,
-30,
-8,
54,
-31,
53,
-30,
-51,
14,
14,
-9,
15,
16,
9,
-28,
3,
-37,
32,
24,
20,
13,
22,
-22,
44,
-25,
-35,
9,
9,
-7,
-25,
0,
-31,
20,
-17,
14,
-5,
-13,
40,
11,
-28,
-1,
18,
-58,
-10,
-37,
0,
-22,
-33,
3,
58,
-35,
10,
9,
32,
-9,
-13,
3,
6,
-3,
-16,
-9,
-25,
36,
-22,
-23,
91,
-49,
-42,
10,
-19,
18,
-1,
-57,
-7,
41,
-28,
-37,
8,
-15,
1,
-9,
-18,
-28,
13,
15,
-30,
38,
18,
-6,
19,
0,
0,
-33,
-12,
-65,
-6,
19,
2,
-30,
-6,
7,
-11,
-13,
44,
-21,
-4,
16,
43,
-7,
-22,
1,
36,
-16,
1,
43,
-53,
11,
-10,
23,
-19,
-13,
14,
-34,
-54,
2,
18,
20,
-11,
-12,
-47,
54,
-15,
24,
-53,
68,
44,
-10,
23,
-57,
60,
3,
-29,
-22,
2,
-48,
-49,
-20,
13,
-24,
77,
-2,
-13,
-22,
0,
0,
-44,
4,
-53,
35,
-22,
28,
-5,
0,
57,
-65,
34,
-20,
17,
-16,
0,
-43,
-8,
-21,
-68,
14,
15,
57,
-35,
-58,
6,
13,
-45,
-9,
1,
16,
-1,
-14,
3,
23,
-43,
10,
26,
-31,
43,
31,
35,
21
] |
Clark, C. J.
Plaintiff, trustee in bankruptcy of Clover Creamery Company, a corporation, sued to recover of defendant the purchase price of 500 shares of the capital stock. In a trial without a jury defendant had judgment. Plaintiff has appealed.
Defendant subscribed for the stock, and the certificate for the shares was issued and delivered to and accepted by him. At the same time defendant gave to the corporation his promissory note for the price, $5,000, payable in 90 days with interest. The note was in common form, except there was written on the bottom of it, “This note taken for plumbing and heating, Clover Creamery Company.” To explain this writing, regarded as ambiguous and incomplete, parol evidence was taken, from which it appeared the corporation intended to put up a large building, defendant was a plumber, and the president of the corporation agreed with defendant that he might do the plumbing and heating work on the proposed building and thus pay the note, hence, the writing on the note. The corporation was unable to carry out its building program for lack of funds, it became financially embarrassed, rights of creditors intervened, and, finally, the president, who was a personal friend of defendant, requested defendant to return the certificate, which he did, and the note was destroyed.
This is not a case of condition precedent, where a condition must be complied with before a subscriber can be held liable on his subscription. Sherrod v. Duffy, 160 Mich. 488 (136 Am. St. Rep. 451). Defendant became a stockholder. He received and accepted the certificate. He was entitled to vote the stock and to have dividends, if any, upon it. He is liable to pay for it. This was a subscription upon condition subsequent, or, as stated by some writers, upon special terms.
Defendant had a collateral agreement that his obligation upon subscription evidenced by his note was to be paid out of a fund to arise upon his being-awarded contract for heating- and plumbing- in the proposed building. Defendant’s remedy, if he has one, for breach of the collateral agreement, is in damages.
The following from 1 Thompson on Corporations (3d Ed.), §712:
“A subscription to the capital stock of a corporation upon conditions subsequent, or special terms, is said to be a contract of absolute subscription on the part of the subscriber, coupled with a contract on the part of the corporation that it will perform on its part certain stipulated acts, and it is absolute from the time it is made. ‘A subscription upon condition subsequent embraces two distinct contracts: first, that of the subscriber to take stock and pay therefor, and, second, that of the corporation to perform the conditions specified in the contract.’ A condition subsequent is a valid consideration for a stock subscription; and, while it does not affect the liability of the subscriber to take' and pay for his stock, it gives him a right of action against the corporation for its failure to perform the condition. ‘A subscription upon special terms is an absolute and unconditional subscription, which makes the subscriber a stockholder, and renders him liable as such, and for the amount of the subscription, as soon as it is accepted, but contains special terms or stipulations. Such a subscription is valid, provided the special terms or stipulations are not such as to constitute a fraud upon the other subscribers or stockholders, or upon the creditors of the corporation, and provided they are not beyond the powers conferred upon the corporation by its charter, nor contrary to law. ’ Some law writers object to the use of the term ‘conditions subsequent’ in this connection. They insist that subscriptions on so-called conditions subsequent are nothing more than subscriptions on special terms. These writers also insist that the so-called subscriptions on conditions subsequent, or subscriptions on special terms, are not conditional subscriptions at all, but are absolute and unconditional subscriptions. The subscriber is a stockholder from the time the subscription is made and accepted, but the subscription may contain special terms limiting the liability of the subscriber in some particular, or impose some special obligation upon the corporation. Where such subscriptions are made, the performance of the condition or stipulation by the corporation is not a condition precedent to the liability of the subscriber: it is simply a collateral or independent agreement, which the corporation undertakes to perform, and for a breach of which it will be liable in damages.”
And from 1 Cook on Corporations (8th Ed.), § 78:
“A conditional subscription is also to be distinguished from a subscription on a condition subse quent. A subscription on a condition subsequent contains a contract between the corporation and the subscriber, whereby the corporation agrees to do some act. It thereby combines two contracts: one the contract of subscription,'the other an ordinary contract of the corporation to perform the specified acts. The subscription is valid and enforceable whether the conditions are performed or not. A condition subsequent is the same as a separate collateral contract between the corporation and the subscriber, for breach of which an action for damages is the remedy.”
And from 2 Fletcher Cyclopedia of Corporations, §601:
“A subscription upon special terms, or upon condition subsequent, on the other hand, is an absolute and unconditional subscription. It makes the subscriber a stockholder, and renders him absolutely liable to pay the amount thereof according to its terms, from the time it is accepted, but contains special terms limiting the liability of the subscriber, or imposing particular obligations upon the corporation. In the latter case, performance of the stipulations by the corporation is not a condition precedent to liability on the part of the subscriber, but is an independent or collateral agreement, for a breach of which the corporation will be liable in damages.”
In Warren Co. Co-op. Ass’n v. Boyd, 171 N. C. 184 (88 S. E. 153), the condition to the subscription did not appear in the subscription itself but in the note given in payment. Held, a condition subsequent (text 1 Cook on Corporations [8th Ed.], § 78, p. 404), and it was said:
“Where, as in this case, the stipulation relied upon, even where valid, is in the nature of a condition subsequent, it is considered as collateral to the principal obligation, and the remedy of the subscriber in case of breach is by an action to recover damages.”
An interesting and instructive case is Natwick v. Terwilliger, 24 Wyo. 253 (157 Pac. 696, 160 Pac. 338).
In Baber v. DeCamp, 96 S. C. 432 (81 S. E. 155, 6 A. L. R. 275), it was held, quoting syllabus (S. E.):
“Where a note for $60.70 was given as a part of the subscription to the capital stock of a bank under an agreement that it should be paid by the purchaser doing advertising and job work for the bank, that the services became unnecessary by reason of the bank’s insolvency did not absolve the purchaser from liability on the note merely because he was ready and willing to render them.”
See Swartwout v. Railroad Co., 24 Mich. 389; Johnson v. Railroad Co., 81 Ga. 725 (8 S. E. 531); Red Wing Hotel Co. v. Friedrich, 26 Minn. 112 (1 N. W. 827); Lane v. Brainerd, 30 Conn. 565; Ridgefield & N. Y. R. Co. v. Brush, 43 Conn. 86; 1 Morawetz Private Corporations (2d Ed.), § 82, 14 C. J. p. 586; O’Dell v. Appalachian Hotel Corp., 153 Va. 283 (149 S. E. 487, 68 A. L. R. 629).
That the note was unqualified promise under negotiable instruments law (a question not considered), see Van Tassel v. McGrail, 93 Wash. 380 (160 Pac. 1053).
Nothing is claimed for the surrender of the certificate and the destruction of the note, and we spend no time on it. See Mills v. Anderson, 238 Mich. 643; Grand Rapids Trust Co. v. Nichols, 199 Mich. 126.
No set-off or counterclaim has been attempted, as to which see Utica Fire Alarm Telegraph Co. v. Waggoner Watchman Clock Co., 166 Mich. 618; 14 C. J. p. 1044.
In fairness to the trial judge, it should be stated that the precise question here decided does not appear to have been, presented to him, indeed, it is difficult to determine what was presented to him. Plain tiff’s case was made on the note. Defendant pleaded the general issue, but seems to have intended defense of fraud. Both sides were surprised by evidence of the writing on the note. Plaintiff, it seems, then sought to stand on the unconditional stock subscription. There is no evidence of fraud. We do not know on what theory the case was defended, although it is stated the plea might be amended to raise question that note was not negotiable. In this situation we were constrained' to request and to receive additional briefs.
Reversed. Costs to plaintiff. Remanded for judgment for plaintiff.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
12,
18,
38,
22,
6,
38,
60,
-49,
38,
40,
27,
43,
33,
2,
-15,
-27,
-1,
-51,
-8,
-24,
-17,
-47,
-63,
1,
-15,
20,
-11,
-5,
10,
52,
-14,
-6,
-56,
-64,
-59,
34,
-8,
16,
17,
9,
17,
-12,
64,
-13,
-10,
-13,
-28,
-31,
34,
-1,
38,
17,
41,
-54,
19,
-2,
-10,
-22,
-23,
-23,
-63,
-44,
44,
-36,
22,
1,
-17,
19,
19,
3,
-24,
0,
-21,
-16,
11,
-51,
13,
-19,
-14,
-52,
48,
-30,
30,
-52,
-47,
-10,
29,
-5,
11,
6,
-2,
2,
-50,
-6,
-19,
-13,
-25,
24,
5,
41,
32,
-55,
-14,
15,
-17,
30,
-8,
-32,
-47,
15,
-30,
-14,
25,
-12,
-51,
5,
-39,
19,
-4,
-63,
23,
26,
-48,
-61,
10,
5,
2,
-6,
-48,
52,
29,
-28,
-62,
20,
-20,
-8,
11,
-34,
2,
12,
-2,
26,
-5,
-15,
-13,
-12,
-21,
-31,
-28,
12,
-4,
42,
28,
14,
6,
24,
-18,
14,
19,
-20,
23,
-1,
-5,
-29,
-19,
33,
-72,
21,
-22,
-17,
-32,
19,
-24,
-64,
-25,
4,
21,
-43,
2,
-66,
-24,
11,
22,
-6,
3,
44,
-36,
-24,
19,
28,
31,
5,
-19,
16,
-21,
-15,
-30,
11,
63,
8,
-38,
-19,
-23,
-29,
-12,
-44,
50,
26,
-15,
-25,
-24,
16,
1,
-23,
7,
3,
16,
-36,
33,
-2,
-36,
-18,
-21,
35,
-21,
-22,
-18,
-21,
-58,
-33,
0,
19,
7,
3,
25,
10,
49,
-5,
59,
43,
-31,
8,
-27,
16,
-4,
-32,
-21,
11,
5,
48,
-4,
-9,
-60,
46,
-21,
-10,
-87,
21,
-19,
-7,
22,
14,
-49,
20,
27,
-67,
35,
-1,
-8,
66,
15,
-21,
10,
12,
-33,
-12,
-14,
-17,
-27,
-22,
69,
-6,
-25,
-20,
-21,
15,
-33,
28,
-78,
-22,
51,
34,
87,
-36,
56,
7,
-12,
-15,
8,
-12,
2,
-24,
-14,
-9,
25,
22,
-58,
5,
1,
-55,
-15,
-8,
-30,
-30,
15,
-21,
1,
31,
25,
-37,
50,
41,
-29,
-7,
31,
29,
55,
-74,
-29,
-7,
1,
-10,
-4,
18,
2,
11,
34,
17,
-17,
0,
58,
12,
18,
-2,
-15,
24,
4,
5,
-49,
-32,
-66,
-40,
-10,
0,
59,
-9,
-1,
1,
-46,
4,
40,
-9,
-18,
-29,
19,
6,
18,
-6,
1,
51,
7,
41,
-37,
-31,
-58,
8,
-7,
-21,
-94,
47,
-20,
-42,
35,
-12,
41,
-35,
-2,
-4,
-14,
-6,
-39,
-15,
-12,
48,
15,
-29,
-37,
6,
-34,
-8,
6,
25,
-4,
-39,
21,
-10,
19,
-19,
10,
69,
-59,
11,
-43,
-34,
-31,
-31,
43,
-48,
10,
30,
26,
-36,
-6,
-24,
17,
-43,
38,
15,
-60,
4,
-26,
32,
-8,
12,
31,
-1,
-71,
-41,
-3,
8,
48,
26,
-45,
5,
53,
35,
21,
2,
27,
7,
5,
-5,
2,
11,
31,
38,
9,
8,
11,
-17,
78,
-20,
22,
-16,
21,
14,
45,
-15,
10,
12,
-44,
26,
34,
29,
-45,
-5,
-23,
15,
-27,
33,
-5,
54,
-20,
-32,
-41,
-10,
-6,
-27,
-15,
17,
16,
23,
16,
34,
5,
9,
-29,
3,
-56,
14,
34,
-32,
7,
8,
17,
-9,
0,
-30,
-3,
30,
-29,
-3,
7,
0,
12,
22,
-13,
37,
21,
69,
48,
20,
-59,
-9,
-50,
15,
19,
42,
57,
2,
16,
-6,
12,
7,
23,
10,
13,
-23,
11,
-18,
-58,
30,
-5,
39,
15,
26,
2,
34,
-43,
37,
1,
-3,
48,
26,
9,
29,
45,
18,
17,
61,
-33,
66,
44,
-27,
40,
2,
-16,
64,
-6,
-1,
-6,
-17,
2,
26,
18,
-30,
-3,
18,
-9,
0,
40,
13,
3,
-55,
-56,
4,
-20,
-12,
11,
10,
-25,
-15,
31,
-34,
4,
8,
57,
-36,
32,
5,
-26,
31,
-23,
-47,
-26,
-13,
-56,
42,
-24,
-43,
-16,
10,
25,
15,
41,
-40,
24,
-16,
-36,
6,
0,
-7,
29,
-7,
-9,
-22,
-3,
-27,
9,
47,
3,
-37,
-57,
-27,
-22,
16,
-31,
0,
-55,
-12,
-15,
1,
29,
0,
39,
-20,
26,
38,
18,
-21,
2,
39,
38,
11,
30,
-46,
60,
23,
32,
-68,
20,
3,
-34,
-11,
15,
-24,
-4,
-9,
4,
1,
22,
7,
-1,
15,
65,
17,
4,
-1,
42,
37,
1,
-4,
-11,
6,
46,
-55,
19,
-8,
10,
-20,
-52,
-70,
-49,
24,
23,
-3,
42,
34,
9,
-3,
0,
-71,
12,
31,
33,
-40,
-76,
43,
4,
24,
65,
-32,
-20,
-21,
-9,
24,
3,
41,
-39,
-36,
22,
-36,
44,
-8,
4,
3,
-7,
-3,
-28,
-7,
2,
-14,
-16,
45,
19,
44,
55,
-78,
-11,
-25,
17,
2,
-55,
-4,
-24,
36,
-14,
41,
-22,
43,
30,
11,
-36,
42,
22,
6,
-42,
-7,
-23,
19,
-39,
8,
4,
-21,
-21,
32,
23,
-12,
29,
-45,
2,
64,
11,
0,
21,
24,
70,
-16,
41,
-29,
3,
4,
30,
2,
-18,
-60,
40,
16,
18,
43,
-1,
29,
66,
-24,
-35,
-22,
44,
58,
15,
-20,
-18,
-11,
-14,
10,
-12,
-13,
-6,
4,
5,
5,
-38,
7,
-18,
29,
39,
17,
-37,
-10,
-2,
29,
-17,
10,
-3,
-9,
23,
40,
-59,
9,
-26,
20,
2,
8,
20,
-11,
0,
7,
34,
19,
-1,
-15,
-22,
-25,
1,
-10,
19,
-16,
-24,
0,
12,
-40,
15,
-7,
-6,
-38,
-8,
-31,
-15,
-9,
-11,
37,
-18,
18,
-35,
36,
37,
-57,
-22,
4,
-17,
14,
-29,
62,
-48,
8,
-2,
22,
19,
-48,
33,
-13,
-21,
-3,
-1,
3,
30,
-25,
7,
9,
-44,
65,
-10,
-47,
-40,
-11,
36,
-46,
14,
-29,
-5,
5,
-14,
-14,
-14,
-7,
11,
50,
7,
0,
33,
43,
18,
-7,
24,
31,
-35,
38,
19,
18,
32,
4,
-19,
27,
0,
2,
-8,
22,
4,
14,
-15,
10,
4,
-15,
-19,
30,
-5,
-38,
-26,
-101,
31,
43,
-13,
-33,
4,
-24,
-11,
-11,
1,
-6,
8,
-30,
-46,
19,
-42,
7,
-17,
-44,
0,
6,
-16,
-14,
-24,
32,
-44,
3,
30,
0,
35,
-16,
-55,
-37,
35,
-17,
-23,
-4,
-43,
49,
8,
-26,
14,
30,
24,
-47,
-13,
18,
-51,
20,
34,
-18,
-29,
-10,
43,
38,
38,
-2,
15,
-39,
31,
12,
12,
-34,
-10,
-22,
-15,
33,
-7,
-38,
-8,
60,
-3,
17,
13,
-31,
79,
36,
0,
15,
-26,
12,
-2,
40,
-2,
15,
38,
61
] |
North, J.
These two suits arising out of the same automobile accident were tried together in the circuit court. There were five parties defendant: Thomas Bayly; Hall-Dodds Company, a Michigan corporation; Of. R. F. Company, a Michigan corporation; Albert Bonstell and Harold Bonstell. Plaintiff in each case had verdict and judgment against the two last-named defendants; but early in the trial the circuit judge on motion of the other three defendants decided to direct a verdict in their favor, and later did so. Prom the directed verdict in each case plaintiff has appealed.
The directed verdicts were based upon the following facts: Hall-Dodds Company, a licensed automobile dealer, on May 23, 1927, received from Thomas A. Bayly a used motor vehicle. Pour days later (May 27th) the dealer entered into a conditional sales contract and delivered this motor vehicle to the defendant Harold R. Bonstell, who thereafter had continuous possession of the vehicle. The conditional sales contract was shortly assigned by the dealer to the G. R. F. Company, a finance corporation. The accident out of which the suits arose occurred June 24, 1927. The certificate of title to the used automobile was not delivered to the HallDodds Company until June 18, 1927. When delivered it was properly signed and sworn to. On the date of its receipt Hall-Dodds Company reassigned the certificate of title to Harold R. Bonstell; and on June 20, 1927, this assigned certificate was delivered by Hall-Dodds Company to the branch office of the secretary of State in Detroit. Harold R. Bonstell had previously executed the application for a new certificate of title by filling out the blank provided for this purpose on the back of the assigned certificate.
Plaintiff contends that since the transfer of the certificate of title was not in exact accordance with the statutory provisions (1 Comp. Laws 1929, §§ 4660-4665 inclusive) title did not pass from the former owners to- Bonstell, that the attempted sale to Bonstell was void, and hence it was error.to direct a verdict as to the three defendants, who as owners or custodians of the automobile permitted its use by Bonstell. Appellant asserts that: (1) The statute (section 4660) requires delivery of the assigned certificate of title to the purchaser at the time of the delivery to him of the motor vehicle, and that subsequent delivery of the assigned certificate of title does not comply with the statute; and (2) since the statute (section 4660) provides that the assigned certificate of title shall be delivered to the purchaser, delivery in this case of such certificate by Hall-Dodds Company to the branch office of the secretary of State instead of the purchaser failed to comply with the statute, and rendered the attempted sale to Bonstell void.
As applied to the facts in this case, these contentions are without merit. As noted above, the accident happened June 24th, and prior thereto, on June 20th, there had been full compliance with the statutory requirements by delivering to the secretary of State at his branch office in Detroit the certificate of title assigned by Hall-Dodds Company to Bonstell, which indorsed certificate bore Bonstell’s application for a certificate of title to him as purchaser. Delivery of the assigned certificate of title to the branch office of the secretary of State, together with the. payment of the statutory fee, complied with the statute requiring the transferee to “present such certificate, assigned as aforesaid, to the secretary of State” (section 4660). Such delivery direct to the secretary of State, instead of to the purchaser, accomplished the statutory pur pose, and was substantial, if not literal, compliance with the law. Obviously Hall-Dodds Company in so doing acted as Bonstell’s agent. It is true this delivery of the assigned certificate was not “within 10 days” after the attempted'sale and delivery of the automobile to Bonstell. But the mere fact that compliance with the statute was somewhat delayed is not a matter of which plaintiff can now take advantage, since there was sufficient compliance with the statute to perfect Bonstell’s' title prior to the date of the accident.
If the sale of a motor vehicle is otherwise effected,' title thereto passes, and the sale becomes fully consummated, upon delivery of the certificate of title properly executed. Until delivery of the assigned certificate, title does not pass, and no sale results; but delivery of the certificate of title properly assigned, notwithstanding such delivery is belated, passes title and consummates the sale.
Judgment is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
-7,
5,
47,
0,
-23,
7,
22,
-14,
4,
19,
-19,
26,
-30,
71,
13,
-21,
23,
-14,
-12,
-18,
15,
-26,
-33,
14,
2,
-30,
11,
-14,
-22,
11,
5,
-1,
23,
5,
-35,
26,
8,
5,
0,
7,
24,
27,
7,
-9,
-4,
-44,
32,
-50,
29,
-15,
0,
-39,
-31,
-15,
23,
-16,
12,
-3,
8,
51,
46,
-29,
19,
4,
-46,
-30,
36,
-26,
18,
-15,
-48,
8,
40,
28,
6,
-44,
17,
18,
-4,
-27,
24,
-19,
70,
-37,
-34,
22,
-12,
4,
-46,
-22,
-87,
-18,
-13,
12,
7,
26,
0,
-23,
7,
-2,
-22,
23,
0,
49,
-28,
34,
10,
-38,
-3,
6,
15,
16,
30,
5,
-37,
-19,
34,
11,
12,
30,
23,
-39,
44,
-5,
11,
14,
-22,
-15,
-27,
8,
23,
-27,
-31,
76,
9,
51,
4,
-18,
-33,
-6,
28,
45,
-23,
-24,
-15,
43,
-9,
28,
1,
-1,
-33,
46,
29,
22,
-6,
-25,
25,
-31,
14,
-35,
-9,
-12,
37,
17,
12,
4,
-31,
38,
-20,
14,
-5,
-2,
43,
-35,
29,
55,
27,
-51,
-41,
7,
-11,
-12,
33,
-21,
-2,
-49,
-15,
27,
0,
-71,
-2,
26,
-12,
33,
-39,
35,
-23,
-9,
9,
35,
-1,
-75,
-25,
-38,
-16,
10,
28,
-10,
17,
23,
-32,
-29,
17,
-19,
20,
35,
-6,
5,
-7,
-37,
8,
29,
-15,
-7,
-12,
-9,
-31,
3,
-2,
44,
23,
24,
-12,
19,
-38,
-30,
0,
-54,
23,
30,
80,
-18,
-9,
-40,
-22,
23,
17,
18,
-6,
-18,
32,
4,
-15,
7,
-5,
-19,
17,
14,
-7,
11,
29,
52,
-23,
53,
-13,
-24,
22,
13,
-16,
22,
-48,
-10,
6,
2,
-14,
-36,
-12,
-12,
36,
26,
-2,
-11,
-12,
-24,
-31,
25,
-25,
25,
-44,
8,
-2,
23,
-2,
9,
-1,
13,
-19,
3,
-66,
-1,
-44,
-15,
13,
31,
16,
-2,
-50,
-24,
-5,
15,
-37,
-43,
66,
-47,
12,
22,
-11,
-25,
29,
-26,
-18,
47,
9,
40,
-15,
38,
31,
-15,
-22,
-29,
20,
8,
2,
-8,
-1,
-41,
36,
-12,
20,
17,
2,
24,
42,
1,
0,
46,
38,
-18,
-34,
3,
-5,
-18,
-1,
-25,
-26,
-31,
40,
-45,
-16,
77,
6,
-26,
1,
32,
-9,
33,
-13,
-4,
5,
81,
-2,
10,
-19,
20,
-46,
-23,
-24,
24,
-27,
42,
2,
-14,
12,
-54,
0,
28,
-10,
-4,
10,
70,
-25,
-13,
0,
10,
-29,
-36,
-15,
12,
-38,
43,
-8,
42,
-42,
-68,
-49,
9,
49,
4,
-31,
5,
-21,
-27,
16,
3,
-4,
-7,
41,
0,
-30,
-4,
4,
1,
-12,
-53,
0,
-15,
30,
25,
-22,
32,
23,
34,
49,
-20,
-4,
19,
5,
-1,
54,
-1,
-2,
-2,
-12,
38,
-10,
13,
25,
-7,
23,
12,
51,
-14,
37,
1,
-13,
24,
55,
20,
27,
-8,
-12,
-79,
5,
-21,
-13,
0,
0,
-20,
22,
-30,
-16,
14,
24,
31,
-36,
-19,
3,
-28,
-5,
13,
3,
48,
-7,
-18,
-46,
-48,
-49,
-7,
-6,
-12,
6,
29,
-19,
30,
-15,
-21,
-45,
12,
-46,
-9,
16,
-13,
17,
5,
38,
0,
16,
-77,
-61,
28,
17,
40,
21,
13,
24,
2,
0,
5,
-9,
42,
42,
26,
-19,
12,
-40,
-38,
34,
0,
19,
-51,
38,
38,
15,
4,
-21,
39,
-12,
10,
-29,
-46,
-13,
29,
-38,
-33,
-20,
-6,
-33,
-13,
17,
-16,
-9,
11,
8,
-31,
-15,
3,
44,
-10,
-17,
30,
-17,
0,
39,
-2,
56,
-15,
2,
-25,
36,
-7,
-43,
-26,
1,
11,
-31,
-21,
0,
8,
-35,
-37,
-12,
27,
24,
-55,
-9,
23,
31,
7,
3,
-49,
15,
0,
2,
-30,
-4,
0,
20,
3,
29,
0,
-11,
2,
-37,
47,
-30,
-5,
-40,
39,
0,
-59,
9,
-25,
3,
-4,
0,
1,
-7,
-27,
17,
42,
-6,
9,
22,
23,
23,
28,
-29,
0,
9,
-16,
28,
4,
-22,
11,
-25,
39,
5,
-2,
-19,
-32,
23,
-33,
1,
-14,
-11,
-43,
-45,
2,
28,
-24,
-64,
23,
-12,
10,
-9,
0,
-5,
-59,
-9,
8,
-2,
-37,
-31,
10,
28,
-10,
22,
2,
39,
51,
43,
-1,
9,
8,
17,
51,
-13,
52,
25,
35,
-30,
8,
-11,
-15,
-25,
-13,
22,
-14,
58,
-47,
-25,
-16,
-33,
-17,
-31,
-2,
1,
28,
-17,
-18,
5,
-34,
-28,
41,
-47,
6,
-12,
19,
2,
5,
22,
0,
10,
-25,
11,
70,
27,
12,
-51,
-51,
-2,
-47,
7,
-57,
0,
49,
21,
-25,
41,
9,
23,
18,
-2,
14,
-22,
23,
10,
-39,
0,
-10,
-21,
7,
22,
-34,
0,
-1,
-2,
37,
26,
-12,
23,
-11,
50,
-8,
-12,
4,
15,
-16,
-8,
-12,
-34,
8,
-6,
-25,
13,
13,
-2,
28,
17,
-53,
-48,
-11,
-4,
-68,
-42,
0,
34,
-5,
19,
-38,
-17,
-96,
3,
40,
22,
-15,
-13,
10,
-40,
13,
40,
-16,
35,
-29,
-46,
-18,
59,
21,
10,
-15,
24,
22,
13,
-10,
-19,
-22,
-3,
-7,
67,
-37,
25,
3,
-5,
-40,
49,
-30,
1,
21,
-31,
-6,
-7,
8,
-2,
4,
-18,
9,
-12,
-15,
-35,
6,
37,
-12,
-16,
38,
-12,
-9,
28,
-24,
43,
8,
-18,
27,
-27,
17,
4,
13,
-10,
18,
29,
-12,
-39,
-13,
-11,
5,
-50,
16,
-5,
-27,
4,
29,
0,
-19,
-47,
30,
2,
-32,
-18,
15,
-25,
37,
-24,
20,
20,
7,
-14,
-1,
32,
-28,
14,
47,
21,
-43,
0,
77,
-29,
-70,
39,
-22,
-45,
27,
-50,
-19,
-48,
-15,
-2,
-16,
31,
13,
36,
-41,
0,
21,
3,
-14,
0,
21,
5,
0,
-41,
39,
30,
-17,
23,
36,
-15,
-1,
21,
4,
38,
0,
29,
-19,
-8,
19,
16,
-40,
-22,
17,
22,
23,
-32,
-9,
-15,
-4,
14,
-38,
1,
-5,
8,
-38,
4,
-16,
-23,
4,
-22,
-47,
12,
16,
-50,
11,
-6,
14,
0,
9,
0,
4,
-59,
-18,
-20,
-5,
-5,
45,
32,
-13,
41,
-34,
17,
-12,
-4,
42,
3,
0,
-41,
-11,
-19,
-64,
61,
19,
-34,
16,
-17,
-8,
-11,
37,
35,
-14,
-16,
-23,
-50,
27,
3,
6,
20,
40,
-33,
15,
39,
23,
12,
-6,
10,
-30,
27,
-12,
-7,
-3,
44,
15,
47,
6,
-47,
-33,
-10,
54,
-3,
48,
-28,
-16,
-21,
-17,
-15,
2,
7,
-9
] |
Sharpe, J.
On October 30, 1928, the parties hereto entered into a written agreement whereby the defendant leased to the plaintiff—
“The first floor and basement of the store, now used for hardware, located at No. 115 south side of West State (now Michigan avenue) of the city of Marshall, Michigan, together with warehouse and two sheds in rear thereof, and' the second story over the hardware, with the exception of the two front rooms, hall and toilet,”—
for a term of four years, at an annual rental of $780, payable in monthly instalments of $65 each.
On November 24, 1928, the defendant caused the following notice to be served on the plaintiff:
“Please take notice that you are hereby required to quit, surrender and deliver up possession to me of the premises hereinafter described, which you now hold of me as my tenant on or before the 1st day of December, A. D. 1928, for the reason' that I intend to terminate your tenancy, and to repossess myself of such premises on the date above mentioned, said premises being described as follows, to wit:
“The shed in the rear of Camilla Bosley store.on West Michigan avenue, in the city of Marshall, Calhoun county, Michigan, said store building being known as 113 West Michigan avenue, in said city of Marshall.*”
The shed described in this notice was soon after removed by Camilla Bosley, whereupon plaintiff filed its bill of complaint herein, seeking to compel defendant to construct a similar building for the use of plaintiff, or, in the event of the denial of such relief, for a decree reducing the monthly rental in an appropriate amount.
Defendant in his answer alleged that the shed in question was not on his property, but belonged to Camilla Gr. Bosley; that it was not included in the lease to plaintiff, and that, in any event, plaintiff had an adequate remedy at law.
The trial court found that this shed was included in the lease, but felt himself powerless to order its reconstruction, and entered a decree reducing the rental of the premises $13 per month, from which the defendant has taken this appeal.
While the shed removed was in fact situate at the rear of lot 113, instead of lot 115, there can be no question but that both plaintiff and defendant intended it to be included in the lease as written. The defendant assumed to have the right to lease it, and did so. This is clearly indicated in the notice above quoted, wherein he speaks of it as that “which you now hold of me as my tenant.” It appearing, however, that this shed and the land upon which it stood did not belong to the defendant, the court could not order him to replace it. The only question presented is whether the decree reducing the rental may stand.
The rule seems well established that a partial eviction of a tenant by a stranger does not suspend the payment of the rental, but results in its apportionment. Fillebrown v. Hoar, 124 Mass. 580; Collins v. Karatopsky, 36 Ark. 316; Halligan v. Wade, 21 Ill. 470 (74 Am. Dec. 108); Poston v. Jones, 37 N. C. 350 (38 Am. Dec. 683). Under the facts here presented, we think such apportionment was properly made by the court in this proceeding.
It is urged that the reduction is out of proportion to the amount of the monthly payments. The testimony shows that this shed was a necessary adjunct to the premises plaintiff was renting, and that, when deprived of its use, he- had to rent another some distance away. After a view by the trial court, he reached the conclusion above stated, and with it we are not inclined to interfere.
The decree is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
1,
11,
-4,
-62,
-35,
-38,
22,
0,
-35,
35,
21,
-43,
0,
3,
32,
-8,
53,
21,
-16,
4,
2,
-21,
-23,
-33,
25,
-12,
-43,
-74,
-9,
0,
-43,
-1,
-32,
32,
-7,
37,
18,
16,
-5,
-33,
-3,
-12,
20,
-28,
39,
-8,
35,
24,
69,
-12,
7,
27,
25,
-26,
-42,
-55,
-13,
26,
-10,
47,
-34,
13,
-8,
4,
25,
-17,
30,
-19,
11,
-29,
-7,
-5,
-14,
0,
12,
-16,
-10,
18,
38,
-8,
70,
2,
18,
-18,
-63,
38,
-20,
-34,
-24,
-18,
-40,
37,
-19,
66,
34,
9,
3,
27,
3,
-23,
-25,
28,
-14,
-5,
31,
-31,
-15,
-5,
-50,
26,
-42,
-2,
63,
42,
17,
-17,
-6,
-26,
53,
5,
22,
37,
-25,
-34,
37,
-1,
22,
-26,
21,
22,
12,
-6,
-9,
8,
34,
11,
19,
17,
-48,
-11,
47,
29,
-3,
-4,
-19,
6,
13,
-21,
-32,
-13,
-36,
7,
16,
52,
23,
22,
30,
-6,
8,
-12,
15,
-27,
3,
-64,
-25,
-26,
10,
52,
-14,
24,
69,
19,
-32,
-28,
26,
-6,
6,
18,
-36,
-47,
-12,
-21,
6,
-46,
-23,
-11,
7,
-22,
21,
20,
48,
-32,
-11,
-25,
-6,
26,
-17,
15,
1,
-39,
-19,
15,
21,
-29,
-16,
-52,
16,
2,
13,
-10,
-28,
-39,
-31,
-4,
15,
16,
-19,
-13,
24,
28,
-3,
-3,
-39,
26,
-45,
-33,
52,
-15,
68,
-10,
-51,
-20,
-4,
17,
0,
4,
-3,
14,
-24,
5,
-20,
-22,
-50,
45,
-50,
28,
-25,
19,
2,
17,
-1,
-24,
-55,
21,
0,
2,
-19,
-9,
-26,
27,
-36,
27,
-26,
9,
70,
6,
0,
-24,
-8,
30,
0,
43,
16,
49,
-51,
-73,
-29,
-13,
50,
-41,
13,
-48,
-3,
16,
19,
-7,
25,
-7,
-34,
43,
-40,
2,
-32,
-16,
58,
-10,
-36,
-20,
-25,
-8,
-28,
5,
-7,
-3,
49,
15,
-1,
-12,
-20,
11,
-33,
-9,
-31,
-15,
20,
-40,
32,
11,
-21,
-28,
22,
-10,
-7,
39,
-29,
-4,
47,
-8,
31,
-17,
14,
-31,
-24,
9,
-34,
54,
17,
-14,
23,
-47,
33,
0,
-34,
0,
-23,
-2,
32,
17,
-39,
-35,
-14,
-33,
-32,
69,
-45,
-10,
16,
28,
-41,
50,
30,
-19,
-2,
-35,
-18,
-6,
-19,
-20,
16,
21,
46,
22,
-3,
7,
5,
-5,
-7,
-42,
-16,
30,
17,
-23,
13,
-5,
38,
-34,
-10,
-68,
-7,
10,
-46,
-5,
31,
-6,
3,
-65,
4,
36,
-13,
-38,
11,
37,
-73,
39,
-44,
-33,
19,
-31,
36,
30,
-23,
-6,
-1,
53,
-30,
15,
4,
-56,
10,
0,
19,
32,
-41,
-6,
0,
-22,
27,
-35,
-19,
19,
-12,
45,
35,
-5,
23,
49,
-83,
-7,
-80,
-19,
-13,
-10,
-50,
-6,
-21,
-4,
-34,
29,
19,
-22,
15,
4,
-26,
-19,
19,
-36,
32,
42,
45,
-6,
69,
-2,
-44,
10,
-5,
4,
17,
-44,
-44,
51,
-62,
36,
-11,
-23,
18,
32,
-14,
-25,
-19,
41,
48,
6,
49,
18,
-2,
-22,
-49,
-46,
-9,
0,
46,
-10,
-19,
2,
24,
6,
12,
6,
5,
12,
-40,
-13,
38,
7,
26,
-22,
1,
-2,
24,
27,
-10,
-16,
13,
27,
9,
1,
-12,
-3,
19,
1,
8,
22,
8,
-11,
18,
1,
50,
14,
-12,
40,
-35,
24,
-12,
-34,
32,
-39,
36,
-20,
12,
18,
-24,
18,
1,
16,
-50,
-2,
-9,
-28,
-33,
-1,
0,
-45,
-18,
9,
-2,
13,
-4,
-17,
6,
38,
15,
21,
-4,
5,
50,
-43,
-13,
6,
-4,
23,
-42,
-13,
34,
-17,
-25,
28,
-56,
-6,
-6,
20,
-43,
-30,
16,
-1,
-19,
-21,
-24,
21,
8,
49,
4,
-20,
5,
-19,
8,
-19,
-21,
14,
-21,
-27,
-4,
-23,
10,
-44,
16,
-28,
-24,
1,
-6,
-4,
21,
37,
4,
9,
8,
54,
34,
-20,
43,
14,
10,
-13,
-4,
24,
-19,
9,
2,
2,
25,
39,
-33,
4,
65,
-5,
40,
7,
53,
17,
-40,
-5,
-38,
29,
5,
20,
-16,
6,
9,
-39,
-17,
-6,
-32,
13,
68,
-13,
51,
-22,
7,
6,
-2,
-18,
-3,
-5,
-41,
-17,
32,
-43,
20,
-36,
41,
24,
-4,
56,
53,
52,
-24,
-41,
-13,
13,
8,
32,
37,
13,
-19,
-1,
10,
-31,
60,
-12,
19,
-23,
37,
-57,
0,
-3,
-5,
24,
-10,
-25,
7,
2,
37,
0,
92,
-2,
-19,
56,
-30,
-22,
-10,
6,
-32,
-2,
4,
-13,
-9,
54,
-44,
35,
0,
-15,
10,
-9,
-7,
-39,
44,
-8,
43,
-49,
8,
3,
24,
28,
1,
-58,
-10,
22,
-9,
3,
24,
20,
13,
-10,
-27,
-18,
-51,
-40,
61,
-11,
-30,
26,
13,
18,
-17,
-8,
23,
-34,
5,
7,
-45,
-5,
-20,
-4,
-70,
-8,
23,
12,
4,
-59,
6,
-30,
-4,
57,
-38,
9,
33,
5,
19,
15,
18,
-50,
18,
-39,
-20,
-18,
-26,
4,
27,
27,
45,
22,
-21,
-42,
-17,
-49,
-24,
18,
19,
3,
-40,
-14,
42,
0,
12,
34,
7,
22,
-32,
7,
-4,
-21,
-22,
57,
-24,
-38,
-40,
5,
3,
71,
-16,
22,
-23,
3,
-34,
4,
5,
-14,
-40,
-18,
-42,
20,
53,
-32,
47,
-3,
11,
-10,
5,
36,
-38,
-6,
-33,
-72,
5,
23,
2,
-10,
27,
-16,
22,
-52,
3,
-24,
22,
12,
-22,
31,
12,
-11,
12,
3,
24,
27,
7,
5,
-10,
0,
11,
-18,
-4,
13,
6,
-12,
-31,
28,
-12,
28,
-28,
-21,
-2,
6,
-5,
29,
4,
-5,
-15,
15,
52,
-37,
-8,
30,
14,
22,
-7,
-20,
13,
-12,
29,
-48,
16,
-73,
36,
-26,
-20,
12,
-4,
-2,
0,
-5,
5,
-22,
-30,
-47,
-55,
-23,
-7,
13,
-11,
12,
30,
20,
21,
-3,
-40,
16,
-4,
36,
0,
16,
5,
30,
2,
27,
-14,
-6,
19,
-30,
28,
-49,
-29,
30,
-16,
8,
-11,
-4,
14,
0,
46,
-12,
30,
0,
-39,
49,
-3,
43,
-1,
-7,
-29,
-26,
-21,
-15,
-39,
4,
15,
-24,
18,
4,
33,
72,
-29,
-8,
-43,
-44,
47,
-4,
4,
18,
30,
9,
28,
25,
-3,
-44,
-12,
41,
15,
-32,
7,
28,
-38,
-12,
33,
-9,
25,
29,
-1,
14,
12,
-13,
-33,
-4,
21,
33,
-14,
25,
37,
-35,
5,
11,
-22,
-8,
-58,
5,
-2,
35,
-1,
22,
-22,
57,
-25,
1,
59,
26,
16,
42
] |
McDonald, J.
Maggie Henry died September 30, 1929. She was survived by Thomas A. Henry, her husband, and Archibald Drew and Myrtle Irwin, two children by a former marriage. On September 8, 1923, she executed her will in which she gave all of her estate to the two children. The will was drawn by Robert T. Speed, ail attorney of Detroit. On September 24, 1929, six days before her death,’ she sent the following letter to Mr. Speed:
“Some time ago I had you make my will. I wish to change it as follows:
“All of my property, estate and holdings to be equally divided between my son Archie, my daughter Myrtle, and my husband Thos. A. Henry, each to receive one-third of my entire estate, real and personal.
‘ ‘ Signed in presence of: Maggie Henry,
X
“Mrs. Bessie Yeager, (Her cross)
“Clara M. Whiting. Bessie Yeager.”
The letter was mailed to Mr. Speed and he acknowledged its receipt on September 25, 1929. On the death of Mrs. Henry, the children presented the former will for probate, and Thomas A. Henry offered the letter as a codicil thereto. Both instruments were contested. The contest was certified to the circuit court, where, on the hearing, a judgment was entered sustaining the original will and denying probate to tbe letter. From this judgment Thomas A. Henry has appealed.
The appeal involves only the question whether the letter is testamentary in character and constitutes a codicil to the former will. It is the contention of the contestants that it is not a will; that it was merely a letter to her attorney instructing him to redraft her former will in accordance with the suggested changes.
“The form of any instrument is of little consequence in determining whether it is a will or not. If it be executed with the formalities required by the statute, and if it is to operate only after the death of the maker, it is a will.” Lautenshlager v. Lautenshlager, 80 Mich. 285.
“If testator does not intend the instrument in question to take effect as his will, but intends it to take effect only when additional formalities are completed, it will not be given effect. For this reason, instructions for a will to be drawn and executed in the future will not amount to a will, although they would be a valid will as far as execution is concerned if testator had so intended.” 1 Page on Wills [2d Ed.], §47, p. 85.
The letter in question indicates that the testatrix intended by that means to dispose of her property to take effect after her death. We must accept the instrument for what it purports to be. It names the beneficiaries, states what portion of her estate each shall take, and is executed with all the formalities required by the statute. It is a valid will unless there is something in its language showing that she did not intend it to operate as such but intended it merely as an instruction to her attorney in redrafting her former will. Her intention must be deduced from the paper itself. If she had intended it merely as an instruction to her attorney, it is unlikely that she would have executed it in the manner required by the statute for the execution of wills (3 Comp. Laws 1929, § 13482). It is possibly true that she intended Mr. Speed should redraft the will, but that would not render the letter ineffective as a will. This letter, having received her sanction as her will, would remain such until the redraft was prepared and executed. In McBride v. McBride, 26 Brat. (67 Va.) 476, it was said:
“It is not necessary that the paper should be the identical one intended by the testator for his last will and testament. If the instrument has once received the sanction of the testator as the final disposition of his property, it will so remain until revoked or canceled in some one of the modes required by the statute. He may have always intended to make another will, but until that intention is consummated by the execution of a posterior instrument, the first will stand as the last will and testament, however little it may reflect the wishes of the testator. ’ ’
In the instant case the testatrix caused this letter to be written and mailed to her attorney six days before her death. In form and substance it purports to be a codicil to her former will. It should have been admitted to probate with that will.
The judgment is reversed and the cause remanded, that proceedings may l?e taken in accordance with this opinion. Costs to plaintiff.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
4,
-32,
0,
-36,
-24,
41,
37,
57,
18,
-7,
-22,
-3,
9,
44,
-51,
-12,
28,
8,
-22,
-12,
-18,
-9,
-33,
-34,
-10,
33,
-3,
-9,
0,
22,
-1,
14,
-55,
45,
26,
-22,
51,
-36,
35,
-38,
-13,
-28,
-23,
70,
-23,
-39,
22,
-20,
-18,
-15,
15,
-66,
25,
-9,
-6,
4,
8,
-50,
-49,
17,
14,
-71,
9,
-6,
-14,
4,
79,
32,
-34,
-20,
0,
-26,
-12,
50,
-60,
17,
43,
11,
-50,
7,
-41,
-25,
-18,
-12,
32,
16,
-6,
-23,
51,
-29,
-34,
-32,
-55,
-2,
-18,
47,
-6,
-5,
18,
38,
-1,
-21,
17,
40,
-36,
-42,
0,
31,
3,
28,
-17,
-1,
22,
20,
-15,
2,
-17,
-36,
2,
-38,
-59,
15,
-15,
0,
16,
24,
-24,
-17,
64,
0,
20,
30,
-4,
-37,
0,
50,
-24,
29,
-51,
-54,
-16,
17,
17,
-58,
-34,
14,
-12,
19,
-23,
-75,
-44,
3,
14,
39,
-44,
-51,
1,
-38,
-2,
-32,
-42,
11,
80,
-9,
-45,
-1,
15,
-29,
-30,
-3,
25,
-20,
3,
3,
25,
15,
19,
-29,
-49,
-7,
-6,
50,
31,
-18,
15,
-21,
25,
29,
-1,
11,
-12,
-12,
57,
34,
-56,
31,
-32,
-11,
-1,
3,
29,
-8,
18,
-14,
-49,
-30,
-37,
-58,
-34,
-13,
4,
6,
-36,
54,
-33,
10,
-41,
-62,
-21,
-3,
-13,
-25,
58,
-20,
2,
0,
11,
-36,
-13,
5,
23,
36,
-75,
44,
-30,
4,
-14,
-26,
-17,
19,
21,
-36,
25,
19,
11,
-15,
13,
18,
53,
34,
-38,
-15,
14,
39,
21,
60,
-27,
0,
57,
-4,
-7,
67,
-7,
-2,
34,
-50,
27,
-60,
-5,
-5,
49,
-35,
15,
34,
11,
-38,
-11,
-29,
-2,
-47,
2,
14,
-70,
-32,
5,
4,
-77,
-74,
4,
1,
12,
22,
-3,
0,
7,
33,
9,
-41,
19,
-47,
-1,
-3,
58,
39,
29,
8,
12,
-49,
30,
-37,
-39,
18,
13,
20,
56,
-7,
-56,
-31,
23,
46,
0,
-7,
-30,
2,
-16,
14,
-56,
49,
-10,
83,
45,
79,
35,
6,
-9,
-12,
23,
39,
-19,
-23,
-5,
-9,
41,
20,
12,
24,
7,
3,
-25,
-27,
-27,
25,
-8,
12,
-29,
-45,
77,
-14,
-13,
52,
-9,
22,
8,
3,
18,
-5,
25,
31,
43,
-8,
22,
49,
-25,
-9,
46,
28,
-21,
22,
32,
13,
-36,
20,
10,
32,
33,
20,
7,
0,
-16,
-7,
-25,
-40,
-42,
23,
10,
-44,
-5,
21,
1,
-36,
-68,
47,
-2,
15,
-43,
88,
-46,
-47,
-48,
11,
40,
29,
56,
-32,
45,
-22,
22,
-40,
39,
21,
-9,
18,
6,
-11,
-60,
-75,
32,
-3,
14,
24,
2,
61,
25,
-20,
20,
13,
27,
46,
21,
7,
-36,
-18,
28,
43,
37,
-7,
11,
-47,
-5,
-12,
29,
-5,
6,
30,
58,
-50,
3,
41,
7,
-1,
-13,
-9,
23,
-10,
-2,
13,
14,
-1,
31,
-47,
-1,
-13,
-5,
28,
3,
-9,
34,
-7,
0,
-20,
16,
59,
-7,
-27,
54,
12,
-51,
-57,
21,
-70,
57,
-19,
36,
-13,
4,
-35,
-23,
-3,
-60,
6,
-22,
-29,
0,
-7,
24,
18,
-44,
-37,
5,
23,
12,
-18,
9,
16,
0,
3,
48,
-23,
15,
42,
-7,
-93,
-6,
-3,
-13,
-24,
77,
20,
12,
-38,
-8,
8,
-14,
-5,
-2,
-8,
-28,
-18,
-10,
-27,
-54,
27,
0,
12,
-24,
-13,
36,
-26,
-22,
-8,
-27,
-48,
-20,
-16,
34,
0,
24,
-10,
-18,
45,
21,
14,
11,
-4,
47,
0,
2,
-1,
-21,
-17,
-45,
-21,
39,
-50,
-7,
-8,
32,
9,
31,
-25,
-32,
-14,
-54,
-5,
44,
27,
-47,
33,
-48,
32,
-5,
2,
-39,
39,
-50,
1,
11,
-41,
-10,
-35,
6,
32,
-4,
6,
-26,
11,
-10,
-26,
67,
-14,
3,
30,
-78,
8,
-19,
11,
35,
-42,
24,
13,
-19,
30,
-9,
13,
6,
-12,
10,
65,
53,
9,
-12,
35,
12,
5,
-67,
11,
-33,
-7,
-7,
-12,
11,
0,
6,
-16,
14,
21,
5,
-1,
18,
38,
1,
-26,
-38,
-9,
-9,
-9,
39,
-25,
6,
23,
1,
-29,
5,
0,
7,
70,
61,
64,
-15,
17,
39,
44,
25,
-2,
17,
65,
-32,
57,
77,
6,
-5,
28,
-24,
58,
69,
-26,
21,
18,
-16,
53,
-29,
-2,
8,
80,
-3,
8,
-17,
74,
12,
-7,
53,
15,
0,
69,
-64,
-36,
-54,
32,
18,
-65,
-13,
43,
-3,
-52,
-22,
-6,
7,
13,
57,
-53,
-9,
-8,
0,
-38,
-76,
33,
-2,
38,
33,
-4,
16,
-43,
-48,
7,
36,
-9,
17,
0,
31,
-11,
-74,
-9,
-39,
-13,
-32,
32,
39,
38,
-30,
2,
39,
6,
25,
2,
18,
-27,
16,
18,
-14,
-36,
13,
25,
-36,
6,
23,
64,
-65,
57,
-13,
-58,
32,
17,
-31,
-2,
6,
-21,
10,
-3,
32,
-5,
-23,
-26,
26,
32,
43,
9,
-4,
-26,
26,
13,
-53,
23,
-35,
-15,
-6,
-14,
-26,
-47,
27,
-30,
60,
-39,
21,
9,
1,
0,
-26,
69,
-48,
-13,
-11,
23,
8,
-45,
-73,
-54,
21,
56,
-39,
-17,
25,
-29,
43,
-48,
-27,
28,
-3,
9,
-64,
31,
12,
1,
11,
24,
-8,
5,
29,
36,
10,
-51,
6,
-38,
48,
22,
17,
19,
41,
43,
13,
-12,
14,
-67,
26,
-6,
-50,
5,
7,
-45,
-12,
23,
-1,
-47,
-16,
-50,
57,
-62,
37,
-12,
22,
28,
-49,
-58,
-67,
-25,
-7,
22,
22,
5,
-5,
11,
31,
52,
0,
19,
7,
-28,
14,
-30,
-10,
-23,
-9,
-34,
56,
7,
-44,
10,
22,
-77,
25,
44,
-47,
-29,
22,
-1,
1,
4,
-2,
-9,
2,
10,
-12,
-43,
12,
31,
11,
-1,
52,
-55,
7,
-43,
20,
-32,
-11,
-7,
46,
-7,
-8,
-5,
-10,
34,
-18,
-3,
-51,
-23,
1,
-13,
44,
0,
36,
23,
1,
29,
-25,
5,
8,
42,
54,
-75,
-33,
32,
-23,
-6,
64,
15,
-116,
68,
-10,
4,
-78,
60,
-1,
13,
-4,
-17,
40,
-55,
-70,
-4,
35,
-32,
-45,
-25,
-18,
-11,
-19,
-82,
52,
11,
-67,
-20,
-20,
12,
-51,
61,
12,
-49,
-38,
-74,
0,
-80,
0,
-32,
-3,
30,
26,
21,
-17,
28,
-14,
47,
-33,
-6,
-1,
-9,
32,
-28,
27,
-24,
-40,
-52,
-39,
-56,
0,
26,
25,
20,
25,
1,
-11,
8,
32,
-3,
27,
-5
] |
McDonald, J.
The plaintiff was substituted as trustee in a trust mortgage given by the defendants to the City National Bank of Lansing. Because of default in the payment of interest and taxes it filed a bill to foreclose. Summons was duly served on the defendants, but they did not appear. Their default was taken, and on January 16,. 1931, after proofs in open court, a decree of foreclosure was entered. Pursuant to this decree the circuit court commissioner regularly advertised and sold the premises on June 18, 1931. Following the usual proceedings the sale was confirmed by the court. The commissioner’s deed was executed and recorded. The equity of redemption expired on December 19, 1931. The defendants had notice of all the proceedings but did not appear or object thereto until action was commenced to oust them of possession. Then, in January, 1932, they filed a petition to set aside the sale, to cancel the commissioner’s deed, and to have an accounting of the amount due under the mortgage. On the hearing of this petition testimony was taken and an order of denial entered. The defendants have appealed.
The chief reason assigned by the defendants for a rehearing is that their failure to appear and contest the foreclosure proceedings was induced by the fraudulent representations and promises of the plaintiff that it would refinance defendants and protect their interests in the property if they did not appear and make a contest. On this question the trial court found that no such representations or promises were made, and we fully agree with his findings.
The sale was advertised and conducted in all respects in strict accordance with the statute, but, in his report to the court, the commissioner mistakenly stated that he had adjourned the sale to the 19th of June instead of to the 18th. The same error appears in the deed. The adjournment in fact was legally made to the 18th, and the sale was held on that day. This was a harmless irregularity which the court properly allowed the commissioner to correct on the hearing of defendants’ petition.
No other questions'require discussion. If defendants had. appeared in the foreclosure proceedings, the record does not show that they had any defense of merit. In any event they were not entitled to a rehearing, in the absence of fraud, after the lapse of two months from the entry of the final decree. Circuit Court Rule No. 48; Union Trust Co. v. Detroit Trust Co., 240 Mich. 646.
The decree of the trial court is affirmed, with costs to the plaintiff.
Clark, C. J., and Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Sharpe, J., did not sit. | [
-28,
3,
29,
0,
8,
7,
20,
32,
-47,
36,
11,
-33,
8,
30,
0,
35,
-4,
-9,
25,
-27,
3,
-36,
-37,
7,
-36,
-18,
26,
-103,
27,
-18,
-5,
-26,
-35,
30,
23,
-24,
-13,
-71,
81,
-32,
13,
-6,
-3,
-28,
-22,
-30,
-12,
-38,
-10,
-8,
21,
-23,
-20,
22,
-17,
-2,
-89,
2,
-16,
-15,
3,
0,
35,
-24,
-16,
10,
-1,
-2,
16,
5,
43,
3,
20,
2,
3,
1,
9,
-26,
-24,
-26,
11,
-53,
36,
-9,
17,
0,
14,
-41,
-11,
17,
-39,
43,
-7,
-14,
10,
-1,
18,
22,
36,
51,
1,
11,
-44,
18,
22,
7,
-30,
-48,
-43,
19,
40,
-28,
48,
-8,
-42,
-10,
-37,
-9,
1,
-31,
-2,
-1,
-40,
-74,
36,
47,
-33,
10,
0,
8,
-48,
4,
-18,
24,
-19,
-5,
-8,
8,
0,
-3,
16,
11,
-3,
-9,
-44,
-25,
17,
-29,
5,
14,
-53,
20,
8,
62,
-4,
-10,
3,
-9,
3,
-18,
21,
5,
-15,
-6,
-12,
23,
-53,
-7,
-7,
-41,
-14,
-10,
-36,
-23,
-14,
-60,
7,
-49,
-23,
-31,
3,
25,
14,
-37,
38,
-27,
-13,
-37,
-3,
14,
20,
12,
-21,
35,
-17,
13,
-14,
21,
52,
46,
10,
22,
4,
-1,
-11,
-44,
34,
-16,
20,
41,
-59,
-4,
-2,
15,
-8,
-3,
21,
-12,
29,
-26,
-9,
15,
-1,
26,
1,
-20,
54,
6,
-9,
52,
-17,
-9,
10,
-24,
-6,
11,
3,
34,
24,
14,
6,
0,
14,
22,
-44,
2,
-25,
-23,
-10,
6,
-38,
2,
-15,
-1,
-4,
34,
-38,
7,
-8,
-11,
74,
4,
-59,
8,
-24,
-23,
13,
26,
13,
-5,
7,
-7,
37,
19,
14,
-8,
-58,
-8,
-32,
-4,
3,
9,
16,
41,
-35,
18,
-1,
23,
-32,
12,
25,
23,
-3,
-1,
35,
-51,
-37,
-30,
55,
23,
-18,
33,
-13,
-24,
-25,
-14,
-28,
-5,
7,
6,
49,
1,
21,
-3,
13,
2,
16,
6,
50,
-13,
41,
-3,
-11,
-13,
10,
12,
58,
-20,
-44,
-4,
24,
-12,
-5,
15,
48,
37,
8,
-8,
0,
15,
6,
50,
-12,
0,
22,
1,
7,
-26,
10,
72,
-30,
-18,
-30,
4,
32,
-10,
-1,
8,
-8,
11,
51,
-3,
-12,
-29,
-6,
-9,
-24,
-36,
29,
60,
30,
14,
-14,
26,
-47,
-12,
-37,
19,
-28,
29,
-23,
-2,
21,
54,
23,
-16,
-12,
0,
-1,
18,
-66,
30,
9,
-3,
8,
-10,
-21,
-6,
-58,
-53,
-7,
46,
-53,
-23,
-29,
14,
-2,
-51,
3,
21,
32,
24,
21,
-15,
1,
-36,
22,
-20,
-2,
-36,
-18,
-15,
4,
-18,
-17,
4,
59,
25,
-16,
9,
5,
37,
-7,
-30,
25,
67,
-40,
-13,
-37,
56,
19,
6,
-40,
2,
70,
3,
-7,
-38,
40,
44,
9,
54,
7,
-17,
-43,
5,
35,
-4,
28,
-44,
63,
-86,
-17,
22,
-50,
-31,
21,
-17,
13,
49,
36,
0,
24,
0,
-34,
51,
0,
4,
-19,
8,
-41,
-2,
7,
20,
-46,
-23,
-75,
-37,
5,
1,
47,
11,
-1,
66,
-31,
-27,
-23,
-34,
5,
20,
22,
-14,
-21,
-7,
64,
-7,
15,
-48,
3,
2,
-36,
-23,
31,
20,
29,
24,
29,
4,
48,
20,
29,
-45,
-34,
-50,
-55,
27,
-4,
62,
-4,
-2,
3,
-2,
28,
24,
-18,
-1,
-23,
15,
36,
30,
-20,
27,
3,
18,
41,
23,
-31,
-29,
-35,
-20,
16,
-56,
-10,
23,
-25,
10,
1,
-21,
5,
21,
11,
28,
40,
2,
14,
-26,
14,
-51,
-20,
-19,
0,
17,
37,
-6,
4,
-14,
-6,
-28,
-2,
54,
-6,
15,
-12,
-54,
-2,
6,
7,
7,
-20,
47,
17,
-10,
-1,
19,
-1,
26,
0,
1,
0,
42,
20,
-10,
-54,
3,
17,
-54,
-4,
13,
23,
7,
-4,
-17,
11,
41,
1,
3,
-13,
-18,
-26,
24,
13,
22,
35,
-32,
-36,
-21,
37,
18,
-24,
7,
16,
-14,
33,
-15,
-36,
-12,
-35,
-7,
0,
0,
-31,
13,
-19,
-5,
-13,
-7,
-30,
0,
24,
-9,
7,
28,
36,
18,
44,
-39,
42,
-44,
78,
-47,
40,
11,
-21,
-2,
15,
-16,
-3,
-7,
36,
46,
45,
5,
38,
21,
18,
11,
-41,
-5,
9,
-43,
-12,
-22,
9,
4,
35,
-23,
0,
0,
-15,
21,
0,
27,
-22,
-14,
-27,
5,
5,
57,
22,
10,
32,
-3,
31,
20,
-44,
15,
-29,
-16,
9,
-17,
-25,
50,
21,
-29,
7,
29,
13,
16,
-10,
-9,
-3,
-26,
-1,
2,
-11,
-34,
54,
-7,
-9,
-30,
-12,
1,
13,
19,
-21,
32,
0,
-9,
-30,
8,
1,
5,
8,
-31,
-25,
0,
-4,
18,
-5,
0,
11,
15,
9,
18,
3,
-14,
-26,
1,
-44,
8,
9,
9,
-2,
-6,
4,
-2,
16,
-19,
-31,
-46,
-54,
-34,
-24,
-56,
14,
-8,
44,
-14,
54,
-25,
-14,
-3,
10,
-7,
27,
-28,
28,
52,
2,
2,
1,
-2,
-55,
-28,
-25,
45,
18,
-48,
3,
3,
-14,
15,
-6,
7,
-20,
21,
-46,
12,
31,
7,
-2,
-29,
4,
-15,
6,
3,
-24,
22,
-43,
-31,
-9,
30,
20,
-39,
-55,
-8,
-4,
0,
-6,
48,
-12,
-24,
-8,
11,
-1,
-9,
17,
45,
37,
-70,
-58,
-38,
-21,
-7,
-46,
40,
-4,
18,
-19,
-3,
0,
-5,
-25,
-25,
-30,
-7,
-16,
8,
19,
-26,
8,
39,
-4,
-27,
36,
-17,
-31,
-15,
-14,
3,
14,
25,
-33,
36,
-9,
8,
34,
-35,
42,
-12,
41,
-5,
1,
4,
-5,
3,
24,
-2,
-9,
53,
-23,
39,
-46,
13,
2,
20,
-6,
-17,
18,
12,
-24,
-27,
-40,
-19,
41,
1,
7,
62,
5,
44,
13,
-8,
-16,
-82,
0,
28,
21,
-35,
-15,
10,
-9,
-38,
-54,
-11,
46,
-48,
8,
13,
21,
19,
9,
40,
-64,
23,
25,
-67,
-2,
-31,
-7,
42,
-26,
-13,
15,
4,
-29,
-20,
29,
26,
-32,
-29,
-16,
-14,
37,
28,
2,
65,
-27,
-38,
7,
-48,
-2,
-13,
37,
-59,
95,
15,
10,
-11,
-23,
-10,
37,
-6,
-46,
-40,
-31,
16,
12,
-8,
-40,
-4,
32,
-12,
13,
15,
9,
-26,
19,
-40,
-9,
-19,
60,
-12,
40,
22,
-35,
-5,
7,
9,
37,
7,
26,
32,
32,
-23,
26,
-34,
7,
17,
-40,
7,
-38,
-36,
0,
51,
-19,
27,
11,
24,
23,
8,
21,
12,
-43,
64
] |
North, J.
Plaintiffs in this mandamus proceeding are the members of the board of jury commissioners for the recorder’s court for the city of Detroit, appointed under Act No. 330, Pub. Acts 1931. Section 1 provides: “This act shall be known and may be cited as the ‘municipal court jury code.’ ” The commissioners filed claims with the controller of the city of Detroit for compensation due each of them for their respective services, a claim for compensation for services rendered to the commission by a typist, and also claims for certain office supplies, office furniture and typewriters, such supplies and equipment being necessary to the proper discharge of the duties of the commissioners and the. maintenance of their office. Payment of these claims was refused by the Detroit common council. Claiming that refusal of payment by defendants was a violation of their official duty, plaintiffs seek mandamus to compel payment. The defendants urge Act No. 330, Pub. Acts 1931, is unconstitutional. They also deny that the various items of which payment is sought are proper charges against the city of Detroit; and assert that such items of expense are not for a municipal purpose within the meaning of the Constitution and laws of the State and the charter of the city, and that the common council cannot legally appropriate money to be used in paying therefor.
Article 8, § 6, of the Constitution, provides:
“The legislature shall by general law provide for the appointment of a board of jury commissioners in each county; but such law shall not become operative in any county until a majority of the electors of. the county voting thereon shall so decide.”
Prior to the constitutional provision, by Act No. 204, Pub. Acts 1893 (3 Comp. Laws 1929, §§ 13837-13862), the legislature provided for a board of jury commissioners for Wayne county. This board was functioning at the time Act No. 330 was passed, and is still the agency through which jurors are selected for the circuit court of Wayne county. Act No. 330, Pub. Acts 193Í, pursuant to a referendum clause therein contained, was submitted to and adopted by the electors of the city of Detroit. Defendants contend that because of the above-quoted constitutional provision only one jury commission can be lawfully created by the legislature in a given county; and that the legislative enactment by which the present and second jury commission was created in Wayne county is invalid. In this connection it is also urged that the act under which plaintiffs were appointed is a local act, whereas the quoted section of the Constitution expressly provides “the legislature shall by general law provide for the appointment of a board of jury com-missioners.”
We think the act of 1931 providing for boards of jury commissioners for municipal courts of record does not contravene the implied provision of the quoted section of the Constitution that there shall be “a board of jury, commissioners” or one board of such commissioners in each county for which, provision must be made “by general law.” The arrangement of the subject-matter of article 8 of the Constitution is quite conclusive on this phase of the case. Article 8 contains the constitutional provisions relative to “local government.” Sections 1 to 15a, inclusive, are germane to county affairs; sections 16 to 19, inclusive, to townships; and sections 20 to 25, inclusive, to cities and villages. The proper construction of section 6 necessitates confining its terms to county affairs. The section thus construed contains no inhibition against the legislation contained in Act No. 330, Pub. Acts 1931, which is ex-, pressly made applicable to cities having municipal courts of record. This constitutional provision is clearly a limitation upon the power of the legislature to enact laws providing for “the appointment of a board of jury commissioners in each county,” and is not applicable to legislation fixing the method of securing juries for municipal courts. As against the reasons now urged the act must be held constitutional.
Are the items submitted by plaintiffs to the defendants for payment properly chargeable to the city of Detroit? As noted above, these items are for compensation at the statutory rate for services rendered by the respective commissioners and for expenses incurred incident to the discharge of the duties of the commission. Defendants do not question the amount or the validity of the respective charges, but it is insisted that these items are not chargeable against the city because, as stated in defendants’ brief:
“The expense for the operation of the recorder’s court jury commission is not a municipal purpose within the meaning of the Constitution and laws of the State of Michigan arid the charter of the city of Detroit.”
Since Act No. 330 is silent as to who shall pay the compensation of the commissioners and (except as hereinafter noted) the items of expense incurred incident to the commission’s discharge of its official duties, it becomes a matter of statutory construction to ascertain, if possible, the legislative intent in this particular. It will be helpful to briefly note some of the details of legislative development incident to the establishment of the recorder’s court in the city of Detroit and also incident to the creation ,of the recorder’s court jury commission.
Act No. 326, Local Acts 1883, is entitled:
“An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith.”
Chapter 12, § 1. “The office of recorder and the recorder’s court of the city of Detroit, shall continue as heretofore created and established.”
Sec. 4. ‘ ‘ The recorder * * * shall be the judge of the recorder’s court of said city. The judge of the superior court of Detroit may act as judge of said recorder’s court whenever requested so to do by the recorder, or in the absence, sickness or incapacity of said recorder, or whenever there is a vacancy in the office of recorder.”
Section 27 of the act obligates the city to pay the expenses incident to the prosecution of persons charged with violating city ordinances, but the county of-Wayne is made chargeable with reasonable costs and expenses and board of prisoners incurred in prosecutions for violations of the general laws of the State.
Sec. 33. “The board of jury commissioners, as created by act 160, of the session laws of eighteen hundred and eighty-one, shall, * * * select persons to serve as petit jurors for the trial of causes in said court.”
By the foregoing provision jurors for the recorder’s court were obtained through the same agency as those for the circuit court of Wayne county, and the jury commissioners, were paid by the county. Section 47 of the act provides the stenographer of the recorder’s court shall be paid by the county treasurer. Under Act No. 326, Local Acts 1883, the recorder acting as judge of the court received "from the treasury of the State of Michigan, the same annual salary as may be payable to circuit judges; ” and he also received additional compensation payable by the city. It thus appears that in its early existence the organization and maintenance of the recorder’s court was a matter in part chargeable to the State, in part to the county, and in part to the city. But there have been many legislative enactments modifying and supplementing the earlier legislation. It is interesting and somewhat important to note the trend of the successive legislative acts as to the manner of providing payment of compensation to the officers and employees of the recorder’s court of Detroit. As noted above, Act No. 326, Local Acts 1883,- provided that the judge of the recorder’s court should be paid by the State with provision for additional salary payable by the city. Later Act No. 369, Pub. Acts 1919, provided that each judge of the recorder’s court should “receive an annual salary from the county” in the same amount as paid by the State to the circuit judges, and such additional salary as the common council of the city might fix. But still later, in 1923, by Act No. 278 (3 Comp. Laws 1929, §16530), the legislature amended the law by providing that each judge of a municipal court of record should receive from the city where the court was located an annual salary equal to that paid circuit judges by the State, and such additional salary as the common council of the city might fix. While the last-cited enactment, which contains a referendum clause, has not been adopted by Detroit, none the less it seems to appear that the trend of these legislative acts has been to make‘the expense of municipal courts of record a charge upon the city instead of the county or State.
The present city charter (title 6, chap. 6, § 1) provides:
“The revenues and moneys of the city shall be divided into the following funds. * * *
“(24) Recorder’s court fund, to maintain the recorder’s court.”
Act No. 364, Pub. Acts 1921, amending Act No. 369, Pub. Acts 1919, provided for a municipal court jury commission composed of three qualified electors residing in the city wherein the court was located. This act was found to be unconstitutional. Attorney General, ex rel. Cotter, v. Lindsay, 221 Mich. 533. The legislature of 1923 passed Act No. 83, which again provided for the appointment by the governor of a board of municipal court jury commissioners composed of three resident electors with compensation at the rate of “ten dollars per day for time actually devoted” to performance of their official duties. The act did not make payment of such compensation a charge against either the city or the county. For what reason we are not advised, but while this act was in force Wayne county paid the commissioners at the statutory rate for services rendered. Acting under the referendum clause, the city of Detroit subsequently adopted Act No. 330, Pub. Acts 1931. As before noted, the act does not expressly provide how the commissioners shall be paid the statutory compensation of $10 per day. However, it is important to note that in each instance where the burden of maintenance of the municipal court is expressly fixed it is placed upon the city. For example, the act specifically provides that the compensation of the secretary and stenographer shall be paid by the city in the same manner as provided by the charter for the payment of salaries of city officials. The act also provides that the city shall provide a place of meeting for the board of jury commissioners. Further, the act creating this jury commission became applicable to the recorder’s court of the city of Detroit only by reason of the electors of the city having adopted it under the referendum clause. Other electors of Wayne county had no voice in the decision. Not only must the jury commissioners be residents of the city of Detroit, but the jurors drawn by these commissioners must reside within the city limits; and further, the jurisdiction of the court itself is confined primarily, if not exclusively, to the city. The statute requires the commissioners to file their oath of office with the city clerk. In addition to the foregoing we cannot overlook the fact that at the time the act in question was passed by the legislature there was already in existence in Wayne county a board of jury commissioners (3 Comp. Laws 1929, § 13837 et seq.) under county pay and functioning to meet the needs of the^ other courts in that county. And finally, it is surely somewhat indicative of legislative intent or purpose that in the first section of this act (No. 330, Pub. Acts 1931), the provision for a “short title” is:
“This act shall be known and may be cited as the ‘municipal court jury code.’ ”
In view of the history of the legislation and considering the context of Act No. 330, Pub. Acts 1931, we think it must be held that the legislature contemplated that the city should be obligated to pay the compensation of the jury commissioners of its municipal court and other legitimate expenses incident to the discharge of their official duties. In arriving at this conclusion we have not overlooked the contention of the defendants that the act under which the former municipal court- jury commission existed seems to have been construed by the local administrative officers as requiring payment of the compensation of the commissioners by the county; but this is not sufficient in' our judgment to overcome the apparent intent of the legislature. It may be true, as contended by defendants, that in the interest of economical administration of governmental affairs there should be only one board of jury commissioners in Wayne county; but that is a matter of legislation, not of judicial determination.
It is stated in defendants ’ answer that the city of Detroit has no appropriation in its budget for the payment of the salaries of the commissioners or for payment of other expenses incident to the discharge of the commission’s duties. This circumstance does not militate against plaintiffs’ right to the relief sought. The prayer of the. petition is sufficiently broad to entitle plaintiffs to the aid of the court in directing the proper authorities to take the necessary steps to obtain funds with which to discharge these obligations. Batch v. City of Detroit, 109 Mich. 253; Burke v. City of River Rouge, 240 Mich. 12.
Assuming that upon adjudication of the controverted issues, the public authorities will co-operate in the administration of the law, we rest decision without making a specific order at this time requiring action on their part; but if necessary an appropriate writ will issue upon proper application. Because the suit involves the administration of public affairs and all parties concerned have acted in good faith, no costs will be awarded.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
-9,
0,
12,
-20,
17,
0,
-2,
-11,
-53,
24,
5,
-16,
17,
4,
20,
-3,
30,
1,
43,
-33,
-9,
-40,
-25,
0,
-42,
33,
29,
20,
-54,
-51,
-21,
-34,
25,
19,
-16,
-7,
-13,
1,
-4,
-4,
-9,
-6,
-15,
4,
-27,
-9,
37,
22,
6,
-25,
-31,
28,
-19,
30,
-70,
-40,
-18,
-36,
3,
-22,
-4,
15,
39,
-4,
-21,
-58,
-9,
19,
11,
-3,
-1,
31,
25,
-37,
41,
-24,
-41,
-64,
0,
22,
1,
-18,
22,
5,
16,
-9,
8,
-8,
-12,
-6,
10,
-9,
-14,
64,
64,
25,
37,
-6,
35,
0,
-13,
20,
-67,
37,
50,
-24,
-8,
-33,
10,
4,
28,
-21,
11,
-40,
-6,
28,
-11,
-33,
6,
15,
25,
-20,
-23,
-7,
-19,
62,
20,
-20,
5,
-18,
39,
-3,
44,
-35,
2,
20,
-33,
7,
66,
69,
38,
22,
-7,
-15,
20,
3,
-13,
21,
30,
-18,
-15,
-16,
47,
44,
20,
-17,
34,
-23,
57,
-9,
36,
13,
-34,
-29,
-43,
-9,
-18,
-20,
5,
11,
-4,
-19,
43,
-47,
19,
-35,
15,
-2,
-39,
-45,
-6,
45,
-22,
0,
24,
3,
48,
-62,
17,
-42,
68,
-5,
-11,
-45,
-13,
60,
48,
22,
14,
20,
30,
-48,
-4,
-25,
16,
-7,
11,
-45,
-16,
46,
-18,
26,
26,
4,
-16,
-14,
-28,
-42,
-9,
-10,
-19,
2,
25,
47,
-48,
16,
21,
-17,
7,
8,
32,
-25,
-6,
-8,
-32,
-56,
15,
-1,
28,
52,
-87,
-26,
23,
22,
-8,
28,
-39,
-42,
-23,
3,
24,
1,
-31,
-11,
-32,
-9,
15,
-23,
-5,
20,
-7,
20,
-29,
48,
-4,
10,
35,
26,
-4,
16,
-23,
12,
0,
28,
-19,
-25,
2,
10,
10,
21,
-44,
-32,
-2,
-25,
3,
22,
-60,
-16,
-6,
-6,
-16,
12,
-7,
47,
4,
69,
12,
9,
51,
20,
-89,
40,
38,
0,
-5,
-64,
-61,
-20,
6,
27,
10,
25,
18,
-24,
16,
7,
-9,
35,
43,
-3,
-16,
10,
-13,
7,
-37,
-22,
26,
-39,
-38,
-64,
28,
-21,
30,
-31,
14,
-18,
21,
-4,
-39,
-42,
38,
-6,
10,
56,
9,
-8,
-32,
-19,
-12,
-14,
3,
-21,
-10,
8,
-14,
-3,
-6,
-18,
-37,
32,
5,
50,
-43,
-14,
8,
-26,
-29,
-14,
11,
27,
28,
44,
-29,
50,
-20,
-24,
-39,
8,
14,
44,
-24,
-15,
-34,
-35,
41,
5,
3,
-21,
-8,
-3,
2,
15,
-38,
-8,
26,
0,
-37,
-30,
-10,
58,
-14,
21,
0,
66,
-11,
18,
12,
33,
-11,
35,
-20,
-35,
32,
14,
-5,
18,
33,
4,
21,
-11,
23,
23,
26,
-44,
17,
-43,
33,
33,
10,
29,
-15,
-2,
17,
7,
10,
9,
-61,
-47,
8,
-20,
-8,
16,
13,
12,
-4,
-25,
3,
46,
22,
38,
12,
19,
0,
7,
8,
29,
-2,
9,
29,
-36,
-19,
-40,
-12,
-6,
-7,
-10,
-39,
42,
13,
-16,
-34,
7,
-15,
-25,
-30,
-15,
17,
-27,
51,
21,
9,
30,
-38,
10,
-35,
-23,
-6,
-7,
-33,
-30,
27,
-62,
-25,
46,
43,
57,
-8,
6,
5,
6,
14,
13,
-3,
-7,
-11,
5,
-16,
-47,
-3,
6,
-28,
6,
8,
44,
-4,
24,
0,
20,
15,
8,
4,
1,
-76,
5,
-40,
21,
25,
-6,
-12,
-13,
25,
-9,
0,
11,
-1,
-3,
-27,
-4,
29,
-14,
24,
29,
18,
36,
21,
-4,
-54,
-40,
19,
-34,
22,
5,
-24,
-17,
-2,
17,
0,
-25,
1,
37,
-35,
-21,
28,
-21,
30,
23,
22,
-26,
46,
15,
-17,
31,
18,
-13,
-10,
-26,
9,
-23,
-33,
-6,
11,
-10,
33,
-10,
27,
-33,
32,
-7,
-2,
23,
-25,
-3,
-10,
-28,
12,
24,
13,
45,
37,
6,
32,
-8,
-15,
4,
-26,
-5,
-66,
8,
38,
-52,
-4,
-21,
-30,
-10,
19,
20,
-52,
-25,
9,
4,
40,
-12,
69,
-23,
9,
1,
10,
-73,
-55,
-22,
-21,
-9,
19,
-10,
-13,
-19,
22,
23,
3,
26,
-33,
19,
0,
17,
55,
-43,
-45,
10,
13,
-15,
-27,
33,
40,
-38,
-18,
-4,
0,
12,
6,
-61,
13,
-9,
-48,
1,
56,
13,
68,
-7,
39,
-16,
1,
-36,
37,
-23,
-15,
-15,
-73,
46,
-7,
-15,
-7,
23,
-44,
-23,
4,
-1,
-28,
-22,
-8,
-56,
-1,
30,
-4,
1,
28,
-12,
12,
28,
-28,
-1,
-22,
-21,
-8,
17,
-29,
0,
-6,
8,
32,
-76,
-16,
-34,
-36,
-12,
-1,
11,
-13,
-7,
2,
45,
-12,
-53,
-27,
10,
-14,
-38,
-2,
-32,
-22,
28,
5,
-60,
33,
-35,
24,
25,
-28,
-11,
-41,
19,
27,
16,
10,
-1,
-10,
-27,
24,
-35,
-9,
34,
-44,
57,
0,
27,
-14,
37,
-27,
-4,
-16,
4,
-17,
17,
25,
-5,
9,
11,
20,
46,
25,
-19,
-34,
-4,
-9,
-53,
56,
-52,
-6,
-5,
-13,
-47,
65,
13,
29,
0,
-35,
-36,
-3,
11,
-13,
29,
17,
-72,
-13,
-27,
-20,
-8,
20,
-29,
11,
7,
5,
68,
24,
8,
-22,
-10,
-59,
-19,
-10,
34,
3,
35,
0,
-14,
8,
6,
-50,
32,
-25,
-34,
27,
9,
24,
-20,
-16,
-1,
-13,
25,
-53,
75,
35,
11,
14,
26,
1,
9,
22,
16,
-5,
9,
-19,
-8,
-54,
23,
-39,
13,
-32,
32,
-45,
14,
-18,
7,
-40,
34,
7,
10,
17,
0,
-11,
-18,
23,
69,
-15,
-64,
14,
-27,
-36,
-97,
1,
7,
35,
14,
-19,
-5,
14,
1,
6,
-8,
-7,
-30,
7,
-31,
16,
-28,
34,
14,
-14,
6,
-48,
53,
0,
10,
-6,
9,
34,
-12,
-48,
-15,
43,
-39,
-2,
10,
21,
-9,
2,
25,
46,
-11,
-7,
19,
25,
-27,
-28,
29,
-18,
-40,
6,
5,
0,
4,
29,
3,
-25,
-29,
-34,
-44,
10,
-19,
15,
-11,
-40,
-45,
-22,
-19,
33,
3,
8,
-45,
45,
-44,
15,
-27,
35,
-37,
-14,
24,
-46,
44,
-45,
3,
3,
-41,
30,
25,
4,
38,
-12,
2,
-20,
29,
-3,
36,
39,
2,
40,
-15,
-7,
-39,
8,
38,
10,
43,
-32,
-32,
-7,
-24,
-9,
51,
3,
9,
22,
-17,
80,
47,
21,
-3,
24,
-20,
-35,
24,
28,
29,
-5,
-39,
-8,
-24,
28,
27,
33,
-10,
65,
22,
22,
-28,
36,
10,
45,
30,
42,
29,
1,
4,
25,
58,
-35,
35,
14,
-9,
-10,
-27,
42,
-26,
-23,
10
] |
Sharpe, J.
The plaintiffs in 1929 were the owners of certain lands in Grand Traverse county, subject to a contract for the sale thereof, the interest of the vendee in which had been duly assigned to the defendant Hershel L. Hobbs. In January of that year Hobbs sold to the defendant Earl A. Button all the standing timber thereon to be cut into block-wood and paid for at the rate of one dollar per cord; 165 cords were later cut and removed by Button and the other defendants, for which Hobbs received $165.
The vendee’s contract above referred to contained the following provision:
“It is mutually agreed between said parties, that the said party of the second part shall have possession of said premises at once and shall keep the same in as good condition as they are at the date hereof, until the said sum shall be paid as aforesaid. ’ ’
This action was brought by the plaintiffs to recover the damages sustained by them by the depreciation of the value of their real estate, caused by the cutting and removal of such timber. The defendants pleaded the general issue. Plaintiffs had verdict and judgment in the sum of $700. Defendants moved for a new trial. One of the reasons assigned therefor was that the verdict was excessive. The court so found, and entered an order that a new trial would be granted unless plaintiffs remitted $200 thereof, which they did. Defendants have appealed.
In their brief defendants’ counsel say:
“There were but two issues to be decided:
“First: Did Hershel L. Hobbs have a right to sell to defendant Earl Button the wood?
“Second: If he did not have the right, what was the damage caused by the- cutting the wood off of the lands?”
1. Counsel do not very seriously contend that under the terms of the contract Hobbs had any legal right to dispose of this timber. When plaintiffs learned of it, their agent interviewed him as to whether he intended to make a payment on the principal and interest due under the contract, and was informed “that his reason for cutting the timber was to get what he could off the farm before we took it on the contract. ’ ’
“If trees be cut, not for the sake of clearing the land, but for sale, it is waste.” 27 R. C. L. p. 1029.
Clearly, the plaintiffs had the right to bring this action for damages for the waste committed.
2. Defendants' counsel insist that plaintiffs’ damages were limited to the value of the timber removed. The trial court instructed the jury that plaintiffs were entitled to recover such an amount as the fair market value of the property had been reduced by the removal of the timber. In this we think he was clearly right.
“The damages for waste committed are usually measured by the injury actually sustained by the inheritance.” 27 R. C. L. p. 1050.
3. The main contention of the defendants is that the court erred in the reception of evidence which caused the jury to render an excessive verdict. The court permitted plaintiffs’ agent to testify to what Hobbs said to him, as above stated, qnd also permitted Hobbs.to be cross-examined on the same subject. He also permitted evidence to be introduced showing the taxes delinquent on the land and the fact that in a proceeding before the circuit court commissioner plaintiffs, on July 29', 1929, were awarded a writ of restitution to recover possession of the property. This evidence was, we think, admissible as bearing on the good faith of Hobbs in selling the timber. Had his purpose in doing so been to improve tbe land, tbe claim of waste could not bave been sustained. Tbe amount of tbe judgment entered was well within the proof submitted as to tbe damages sustained.
Judgment affirmed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-2,
31,
-32,
22,
-34,
21,
-14,
23,
7,
39,
6,
-1,
28,
62,
34,
10,
4,
-10,
22,
53,
7,
-26,
-10,
4,
30,
-57,
24,
-50,
-29,
19,
-24,
37,
-18,
-34,
-36,
6,
-31,
11,
-54,
18,
13,
0,
67,
-12,
61,
8,
23,
1,
29,
34,
64,
8,
-18,
-37,
-42,
5,
3,
7,
-28,
25,
8,
-45,
-20,
4,
74,
-40,
-64,
35,
38,
-28,
0,
21,
-39,
0,
38,
-25,
4,
-14,
-20,
22,
11,
-17,
6,
-12,
-41,
1,
-52,
-47,
17,
-1,
-14,
-9,
-1,
16,
18,
18,
-4,
12,
-12,
22,
4,
-20,
0,
2,
6,
-23,
9,
-16,
0,
-3,
-15,
19,
3,
-5,
8,
-23,
-29,
-5,
39,
14,
-37,
2,
1,
-12,
4,
9,
-17,
1,
-17,
-8,
36,
-8,
-25,
-42,
11,
46,
-47,
14,
-49,
-8,
21,
8,
-14,
6,
59,
-3,
14,
-8,
-14,
-8,
-27,
13,
-29,
10,
31,
-24,
31,
-40,
47,
-55,
47,
10,
-27,
-41,
-34,
34,
-9,
8,
-11,
32,
44,
20,
-16,
6,
35,
-4,
51,
21,
-11,
41,
-3,
8,
12,
-41,
-28,
-37,
16,
16,
-65,
63,
33,
-60,
-4,
-59,
-45,
33,
17,
17,
-31,
-7,
-5,
-71,
4,
-2,
0,
9,
29,
22,
52,
44,
-32,
4,
-1,
-48,
-11,
8,
-1,
-20,
7,
-32,
26,
33,
-12,
-26,
-26,
-11,
34,
38,
29,
-40,
-54,
3,
29,
4,
-24,
-35,
-13,
13,
-6,
13,
-26,
-41,
-53,
5,
5,
-9,
-32,
-21,
-2,
24,
-52,
-9,
-27,
43,
-16,
23,
15,
-60,
-55,
-20,
-45,
15,
1,
10,
7,
10,
-19,
24,
-15,
34,
-30,
33,
22,
42,
-31,
-46,
-39,
16,
-18,
-14,
57,
-12,
-41,
9,
-8,
13,
-8,
31,
-2,
0,
36,
-9,
-19,
-71,
61,
45,
24,
-44,
62,
-16,
-47,
-13,
6,
4,
3,
40,
25,
-14,
-7,
7,
6,
-35,
-22,
-14,
5,
-2,
16,
-33,
-50,
-37,
10,
8,
9,
22,
-8,
14,
39,
-26,
-5,
41,
-18,
-28,
-10,
-12,
4,
-35,
-7,
-30,
-33,
-2,
48,
29,
0,
24,
22,
7,
-8,
4,
-8,
-33,
50,
17,
15,
36,
3,
-31,
0,
28,
-30,
51,
38,
31,
21,
14,
0,
23,
-9,
-26,
19,
16,
-27,
37,
55,
-2,
13,
-3,
-8,
0,
-72,
29,
-3,
0,
37,
18,
28,
9,
-26,
1,
-13,
-29,
2,
-37,
12,
45,
19,
10,
11,
-5,
-3,
-24,
-35,
22,
19,
8,
-30,
-10,
-4,
-20,
17,
9,
19,
-10,
15,
-4,
8,
-14,
13,
20,
32,
2,
58,
-3,
-7,
-17,
17,
-23,
23,
-12,
-14,
8,
0,
18,
-4,
-2,
10,
20,
-42,
7,
-71,
19,
-31,
0,
-12,
-62,
-30,
-9,
37,
35,
20,
-12,
-5,
-37,
-30,
13,
-7,
-23,
14,
-55,
23,
-16,
5,
3,
16,
-5,
27,
-6,
18,
-68,
20,
26,
15,
44,
37,
-10,
-27,
-13,
8,
-43,
-5,
19,
27,
-8,
23,
53,
-28,
8,
-8,
24,
10,
11,
42,
-19,
46,
-41,
-34,
27,
-1,
15,
72,
46,
-23,
-34,
22,
-12,
27,
-15,
-22,
-24,
5,
61,
-20,
-50,
20,
10,
-10,
31,
11,
-19,
-24,
46,
19,
1,
-23,
15,
29,
12,
23,
9,
33,
-21,
-5,
-28,
-11,
-49,
-20,
2,
-6,
-23,
-44,
-19,
-22,
-6,
40,
29,
-38,
0,
-1,
-9,
12,
-6,
-31,
-39,
-9,
-25,
1,
31,
-29,
-33,
11,
-11,
13,
0,
-7,
-52,
45,
-10,
1,
-26,
27,
57,
-5,
-36,
36,
28,
-44,
9,
-44,
-1,
11,
54,
-35,
-62,
-18,
-2,
-6,
-58,
23,
33,
28,
26,
6,
-8,
-1,
-50,
-38,
-14,
6,
-7,
-34,
9,
-44,
48,
-40,
-28,
-19,
-30,
-5,
24,
0,
35,
23,
7,
-13,
4,
11,
23,
26,
-83,
45,
4,
74,
-35,
-22,
19,
13,
23,
-21,
19,
-34,
17,
-33,
-16,
35,
17,
-7,
14,
31,
33,
-24,
35,
-21,
-19,
-30,
-25,
-29,
9,
-35,
-20,
-29,
-73,
-44,
-17,
24,
4,
8,
2,
6,
-7,
-24,
-29,
56,
4,
-20,
-1,
3,
1,
5,
28,
-20,
57,
40,
-9,
-3,
2,
28,
-23,
-10,
61,
21,
26,
21,
-18,
56,
-18,
-5,
0,
36,
7,
23,
17,
16,
-11,
29,
-2,
-19,
-23,
32,
26,
6,
-3,
-13,
28,
13,
33,
-19,
0,
-54,
-13,
-10,
-8,
-23,
-9,
-4,
6,
-23,
0,
0,
-5,
-8,
-12,
-13,
-19,
19,
-61,
19,
1,
50,
-20,
-46,
-21,
0,
20,
1,
-41,
4,
-23,
1,
19,
-7,
-20,
-2,
-3,
-23,
-12,
-41,
11,
49,
-7,
-16,
-1,
-26,
23,
38,
19,
8,
-72,
-22,
10,
-29,
-12,
58,
-29,
-27,
-33,
6,
-34,
-28,
-61,
47,
-31,
-24,
14,
-37,
-22,
51,
23,
-3,
14,
41,
17,
14,
-51,
-23,
-12,
-60,
-39,
44,
-7,
27,
11,
7,
-55,
-1,
-8,
-37,
-5,
5,
0,
7,
-23,
41,
36,
-15,
54,
15,
36,
15,
-3,
-3,
8,
-22,
4,
13,
-12,
-17,
-11,
-28,
33,
12,
44,
-31,
16,
-26,
1,
30,
7,
14,
16,
-30,
-22,
23,
-34,
0,
39,
33,
-29,
2,
-10,
-67,
-17,
15,
-47,
-3,
-23,
43,
-21,
-3,
7,
-42,
-9,
-29,
9,
9,
32,
-47,
-19,
-46,
4,
37,
19,
1,
0,
-39,
-4,
6,
19,
9,
0,
24,
4,
11,
36,
-1,
-11,
2,
-14,
-45,
-10,
1,
-28,
-38,
17,
-40,
42,
-52,
15,
15,
-17,
26,
42,
26,
-94,
-18,
15,
-5,
-17,
-4,
-21,
12,
21,
-1,
0,
29,
15,
-42,
-16,
25,
-23,
1,
5,
11,
-44,
-44,
-3,
-38,
17,
-8,
26,
27,
4,
36,
-2,
-28,
0,
7,
-49,
10,
4,
-6,
53,
-3,
0,
1,
-29,
15,
-7,
23,
-38,
14,
2,
17,
-12,
23,
20,
11,
-35,
11,
16,
-12,
72,
21,
42,
29,
57,
-15,
12,
-52,
0,
-46,
-14,
-53,
11,
-4,
13,
46,
32,
16,
6,
-13,
-43,
19,
-43,
35,
-23,
14,
-38,
8,
39,
12,
26,
28,
-41,
-51,
33,
24,
14,
-12,
8,
-40,
25,
-22,
38,
26,
6,
-1,
14,
-1,
-12,
-31,
-44,
-11,
-17,
-14,
27,
32,
11,
67,
26,
14,
-18,
-87,
1,
15,
-13,
-14,
33,
-11,
26,
-32,
-33,
54,
6,
11,
76
] |
Potter, J.
Plaintiff filed its bill to set aside, on the ground of perjury, an award, of the department of labor and industry, of compensation to defendant Mae Klettke, and to recover the sum paid to her by it as insurer of the C. & J. Commercial Driveaway, Inc., by whom Henry Klettke was em ployed when he suffered injuries resulting in his death. From a decree dismissing its bill, plaintiff appeals.
Defendant Mae Klettke claimed compensation as the widow of Henry Klettke, deceased. An award in her favor by the department of labor and industry was affirmed in Klettke v. C. & J. Commercial Driveaway, Inc., 250 Mich. 454. Compensation was paid to her by plaintiff, the insurer of the C. & J. Commercial Driveaway, Inc. Plaintiff claims defendant Mae Klettke testified before the department of labor and industry she was the wife of Henry Klettke, married to him by Rev. Paul in Indiana, and that she and deceased had lived together as husband and wife for six years. It is now conceded by her there was no ceremonial marriage between her and Henry Klettke. In this suit she claimed a common-law marriage and gave proof tending to sustain her claim, which proof plaintiff asserts falls far short of sustaining a legal marriage. It claims her false testimony before the department of labor and industry was perjury and constituted such a fraud upon that department as to justify the interposition of a court of equity in granting relief. Perjury is not uncommon in courts. In almost every case there are disputed facts. Courts, juries, and administrative tribunals are constantly called upon to weigh testimony, pass upon the credibility of witnesses, and determine, in legal controversies, who has told the truth. Though the authorities are not agreed, this State is committed to the rule, stated in Pomeroy’s Equitable Remedies (2d Ed.), § 656, published as Pomeroy’s Equity Jurisprudence (4th Ed.), § 2077, as follows:
“The courts hold that perjury is intrinsic fraud and that therefore it is not ground for equitable relief against a judgment resulting from it. We have seen that the fraud which warrants equity in interfering with such a solemn thing as a judgment must be fraud in obtaining the judgment, and must be such as prevents the losing* party from having an adversary trial of the issue. Perjury is a fraud in obtaining' the judgment, but it does not prevent an adversary trial. The losing party is before the court and is well able to make his defense. His opponent does nothing to prevent it. This rule seems harsh, for often a party will lose valuable rights because of the perjury of his adversary. However, public policy seems to demand that there be an end to litigation. If perjury were accepted as a ground for relief, litigation might be endless; the same issues would have to be tried repeatedly. As stated in a leading case, ‘the wrong, in such case, is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is, that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once, it could be done again and again ad infinitum. ’ And to use the language of an eminent court, ‘the maxim that fraud vitiates every proceeding must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been actually tried, or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud, because the judgment is the highest evidence and cannot be contradicted.’
“In atecordance with the principles laid down above, it is held, by the weight of authority, that neither perjury nor forgery is sufficient ground for equitable interference.”
The principles of the text above quoted have been approved by this court. Gray v. Barton, 62 Mich. 186; Codde v. Mahiat, 109 Mich. 186; Steele v. Culver, 157 Mich. 344 (23 L. R. A. [N. S.] .564). We reaffirm such approval.
The decree of the trial court is affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
25,
-7,
-56,
-5,
23,
3,
2,
-27,
-4,
-9,
0,
-25,
58,
-5,
-2,
-14,
17,
0,
56,
-26,
-1,
-32,
12,
1,
4,
33,
3,
-31,
-29,
-2,
7,
16,
-66,
-1,
-11,
-42,
38,
6,
-22,
-15,
-8,
-1,
1,
18,
-21,
19,
-24,
21,
33,
7,
-29,
-81,
-4,
-54,
-4,
-35,
10,
-8,
28,
-39,
9,
-64,
33,
-70,
33,
14,
57,
35,
-51,
-4,
-20,
3,
1,
-20,
-73,
-53,
-15,
55,
-13,
-19,
11,
-50,
12,
-16,
-24,
12,
17,
8,
27,
22,
-55,
7,
-20,
16,
-33,
-4,
42,
53,
39,
48,
-27,
4,
-17,
3,
-4,
-2,
38,
-13,
-14,
40,
24,
-45,
40,
15,
-13,
-39,
14,
-11,
45,
-19,
28,
-48,
-4,
66,
18,
27,
12,
-17,
-6,
19,
56,
-32,
-1,
-17,
38,
3,
37,
-4,
-46,
18,
40,
-14,
-5,
-19,
-14,
26,
-45,
14,
-4,
-47,
-16,
-30,
49,
42,
15,
-40,
-7,
-65,
33,
-40,
28,
-28,
-4,
-29,
-32,
-20,
55,
24,
33,
-20,
48,
4,
-47,
20,
-12,
15,
41,
-8,
-7,
-3,
-4,
11,
-59,
37,
-4,
-15,
-1,
30,
45,
-33,
10,
1,
-29,
47,
-11,
61,
0,
3,
35,
-39,
-6,
-34,
30,
18,
34,
27,
-16,
-48,
-4,
0,
10,
-24,
47,
-30,
-1,
18,
31,
-34,
-14,
-8,
5,
41,
-23,
33,
-37,
-41,
-38,
-28,
18,
-41,
10,
-2,
-15,
0,
-42,
-36,
35,
-51,
33,
-17,
12,
-18,
2,
-38,
-12,
-21,
-12,
23,
4,
70,
-23,
-2,
0,
51,
-7,
-14,
-10,
49,
0,
13,
-26,
34,
-20,
14,
-14,
-33,
-27,
24,
-1,
-8,
60,
-40,
51,
-1,
27,
-66,
-28,
49,
47,
6,
-14,
52,
-60,
-25,
-4,
-2,
-43,
21,
28,
-7,
23,
-18,
-48,
14,
55,
19,
13,
26,
21,
5,
19,
-29,
44,
-56,
1,
-4,
-47,
-44,
-27,
0,
-8,
9,
33,
16,
26,
65,
-22,
-25,
19,
-43,
5,
-18,
-64,
10,
-11,
-15,
-30,
17,
-1,
14,
-21,
80,
35,
4,
12,
-25,
-5,
48,
11,
-31,
35,
6,
32,
-7,
-27,
-7,
31,
0,
12,
-28,
-16,
-28,
-37,
-6,
-12,
29,
45,
-59,
-50,
17,
-29,
15,
8,
11,
-12,
7,
-52,
-39,
16,
-10,
-24,
-8,
-47,
-2,
-23,
-9,
-51,
86,
-28,
14,
-17,
2,
-23,
28,
15,
33,
3,
73,
-30,
31,
-38,
-25,
-7,
21,
-4,
-4,
26,
-9,
-29,
27,
6,
14,
0,
7,
-51,
-30,
1,
-18,
-69,
35,
48,
-4,
-30,
21,
-3,
15,
72,
-28,
58,
15,
86,
1,
15,
-24,
49,
-23,
29,
39,
36,
-47,
-12,
-27,
32,
-51,
6,
-13,
-43,
6,
-36,
40,
-7,
41,
2,
-2,
-17,
29,
9,
11,
-10,
-14,
-6,
46,
1,
51,
-11,
-35,
43,
12,
35,
-30,
-26,
14,
9,
5,
40,
14,
-9,
55,
-9,
7,
54,
-32,
-14,
13,
18,
8,
21,
-37,
13,
-10,
9,
9,
31,
-67,
-37,
-12,
11,
-8,
-4,
-71,
-14,
11,
-30,
-32,
-17,
-18,
-12,
5,
14,
-19,
-49,
15,
21,
-5,
25,
-10,
-22,
-38,
0,
24,
-37,
22,
29,
36,
9,
57,
33,
6,
-25,
26,
-23,
9,
0,
-11,
-7,
-31,
1,
19,
-5,
15,
-28,
21,
31,
-37,
-3,
-6,
13,
-10,
-10,
-27,
-47,
58,
36,
16,
1,
41,
29,
-24,
11,
22,
-4,
-36,
18,
-18,
4,
44,
56,
8,
25,
-25,
-20,
-2,
-18,
17,
-18,
-9,
16,
-34,
18,
11,
-27,
-17,
4,
-23,
15,
4,
-35,
7,
-29,
22,
-31,
-38,
8,
-61,
-33,
-8,
8,
12,
11,
-39,
6,
-32,
-2,
-14,
37,
0,
12,
-22,
32,
4,
8,
-33,
-82,
2,
-28,
-26,
8,
65,
6,
-25,
13,
13,
17,
-49,
28,
11,
-25,
-35,
-16,
41,
-7,
34,
18,
-56,
44,
24,
12,
8,
-7,
-38,
11,
6,
-12,
-5,
2,
10,
0,
34,
-15,
4,
31,
9,
38,
-15,
-25,
-18,
24,
13,
-12,
-64,
-10,
39,
5,
-39,
-21,
13,
33,
15,
-53,
-26,
-33,
-16,
-35,
-20,
19,
-11,
73,
-11,
-9,
-13,
-21,
-56,
-8,
46,
39,
-4,
-2,
4,
-42,
34,
-28,
-18,
48,
31,
-30,
39,
0,
-5,
-16,
-16,
10,
-13,
-13,
30,
32,
3,
-18,
-5,
50,
-51,
15,
20,
1,
28,
-13,
-10,
44,
-15,
-34,
34,
-4,
19,
-17,
-31,
-10,
36,
-8,
-10,
38,
-42,
-41,
-9,
-13,
34,
-4,
7,
43,
-13,
46,
-28,
20,
16,
-46,
3,
1,
13,
-9,
-4,
-33,
-24,
32,
-3,
-32,
-6,
8,
-17,
-20,
-9,
37,
6,
-2,
23,
-11,
9,
12,
-5,
19,
-34,
26,
-33,
-19,
72,
-16,
-82,
-11,
32,
-34,
-16,
14,
27,
6,
33,
-13,
-9,
-4,
9,
33,
0,
13,
8,
2,
-23,
2,
32,
-14,
-3,
29,
-4,
-38,
26,
-55,
-48,
-6,
3,
-9,
-29,
-10,
-6,
-19,
-45,
-1,
-12,
2,
47,
23,
-32,
-10,
-2,
-27,
-14,
41,
7,
-16,
26,
-54,
-14,
7,
25,
-44,
-31,
35,
-17,
-17,
-11,
-18,
-42,
-28,
-31,
-75,
18,
-23,
-31,
-29,
14,
4,
45,
47,
9,
-1,
-12,
11,
-17,
-48,
65,
4,
-5,
-10,
0,
0,
14,
-4,
-64,
17,
42,
27,
-34,
-7,
6,
-17,
27,
7,
-23,
15,
5,
-7,
1,
-32,
11,
15,
-67,
-6,
-13,
-61,
-11,
-7,
24,
16,
-1,
63,
51,
-58,
28,
11,
-18,
1,
-14,
9,
-7,
-25,
15,
35,
13,
33,
-33,
-29,
-31,
19,
-32,
-11,
-43,
3,
-8,
11,
-44,
34,
52,
-14,
-6,
3,
8,
0,
-7,
-32,
43,
30,
39,
2,
61,
-10,
-3,
-7,
1,
-19,
25,
-3,
0,
68,
14,
-30,
40,
-27,
-8,
5,
59,
78,
-3,
-36,
-25,
-21,
0,
-4,
35,
-54,
-4,
-33,
-40,
20,
16,
-20,
30,
2,
35,
13,
4,
-27,
-31,
26,
-3,
-23,
-20,
0,
29,
-39,
-24,
55,
-75,
-9,
63,
16,
-18,
4,
-30,
-1,
-36,
-41,
-26,
8,
27,
-40,
-7,
12,
6,
-11,
33,
-19,
4,
8,
-46,
6,
26,
61,
-8,
9,
16,
5,
-2,
-14,
18,
1,
9,
9,
30,
51,
-2,
59,
24,
44,
-10,
51,
39,
-13,
-33,
53,
-24,
-6,
46,
-18,
-68,
26,
-65,
42,
-5,
-3,
43
] |
Fead, J.
This is review of judgment ordering writ of mandamus to compel defendants to provide for an election to vote upon 13 sections of “amend ments” to the charter of the city of Bay City, proposed by initiative petition of electors.
The charter was adopted under the home-rule act (1 Comp. Laws 1929, § 2228 et seq.). It provides for a city commission of five persons, elected from districts, and a mayor without power of veto. It also requires the appointment of a city manager, whose powers and duties are defined or mentioned in some 67 places of the charter and who is an executive officer of the city.
Ten of the proposed amendments provide for abolishing the districts, for increase of the commission to nine members, to be elected from wards, and for conferring power of veto on the mayor. Another is to abolish the office of city manager and vest his powers and duties in the city commission, with “power to delegate such of said powers and duties to other city officers as the said commission shall by ordinance provide.” Another is to prohibit city officers or employees from being interested in city contracts and to require public bids on certain expenditures. Another is to prohibit diversion of water and light revenues and to provide for service at cost.
The first question is whether the petition is in form to require submission of the proposed amendments to the electors.
Under 1 Comp. Laws 1929, § 2257, which provides that the initiatory petition may set up the form in which proposed amendments shall be submitted on the ballot, the petition provides for separate vote on each of the 13 sections. This would make it possible for the electors to approve some and reject others of the sections pertaining to the increase of the number of commissioners. A certain combination of approvals and rejections would render the charter unworkable. For example, if the electors should approve the abolishing of districts and- reject increase of the number of commissioners, the territory from which the five commissioners are to be elected would not be stated in the charter. Other combinations would' seriously impair the conduct of municipal business, certainly be productive of litigation or result in absurdity in government. A statute should not be construed to produce such results if another construction is fairly possible.
An amendment may be to the charter, to a subject of it, or to a specific section, by alteration, subtraction, or addition. It was the intention of the legislature to provide for orderly change of the charter, not to encourage or sanction confusion in city government. To carry out its intention and to avoid absurdity of result, it is necessary that all proposals pertaining to the same subject and directed to the same purpose be treated as one amendment, as they are in fact, and be voted on as such, although they contemplate change of more than one section. See State v. City of Portland, 65 Ore. 273 (133 Pac. 62).
1 Comp. Laws 1929, §§ 2257-2261, inclusive, in providing for submitting and adopting an amendment to the charter, use the word “amendment” in the singular. Section 2261 provides that other proposals, whether initiated by petition or proposed by the legislative body of the city, may be submitted at the same election. The consistent use of the singular demonstrates that it was deliberate on the part of the legislature and precludes the joining of two or more unrelated amendments in the same petition. It was evidently the intention of the legislature to insure the considered action of the electors on each separate proposal and not to permit the securing of signatures through the trick of combining different proposals in the same petition.
We hold that the petition may embrace only one proposed amendment, to be so voted upon, although it may consist of more than one section, if all sections are germane to the purpose of the amendment. The petition on its face is not in the form required by law, and raised no duty, in defendants to provide for an election.
Counsel discuss at length another question, upon which attorneys of other cities have filed a brief amici curies because of its public interest. Counsel disagree upon whether it is proper for present consideration or should be raised by quo warranto after the election. The determination of the question is more important than decision of the matter of procedure, and, as it will enable electors to take proper steps to change charters and probably save further litigation, we are moved to consider it.
The question is whether the changes of the nature here proposed may be made by amendment to the charter or only by revision. 1 Comp. Laws 1929, § 2254, provides:
‘‘Any city desiring to revise its charter shall do so in the following manner.”
1 Comp. Laws 1929, § 2257, provides:
“Any existing city charter * * * may from time to time be amended in the manner following.”
Either revision or amendment may be initiated by petition of electors. On amendment, the proposal is submitted at the election in the form set up in the petition, if it sets up a form. The sections of the statute pertaining to amendment of a charter adopted under the home-rule act contain no express language indicating that a change in the form of government may be so made. On revision, the charter is prepared by a charter commission elected by the people, and submitted to the electors. At the initial election to determine whether the charter shall be revised, the legislative body of the city or the initiative petitions “may provide for the submission with such question for an advisory vote the question of a change in the form of government of such city.” 1 Comp. Laws 1929, § 2254. Thus, the statute rather clearly points out revision of the charter as the method of changing the form of government, and, moreover, by providing for an advisory rather than a mandatory vote, that the final determination of such change is committed to a charter commission, subject to later approval of the electors.
“Revision” and “amendment” have the common characteristics of working changes in the charter and are sometimes used inexactly, but there is an essential difference between them. Revision implies a re-examination of the whole law and a redraft without obligation to maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine the whole subject and to prepare and submit a new instrument, whether the desired changes from the old be few or many. Amendment implies continuance of the general plan and purport of the law, with corrections to better accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a correction of detail.
“Revision. The act of re-examination to correct, review, alter or amend; review, re-examination, looking at again.” 54 C. J. p. 771.
“The term ‘amendment’ implies such addition to or change within the lines of the original instru ment as will effect an improvement, or better carry out the purpose for which it was framed.” 25 R. C. L. p. 904.
See, also, Livermore v. Waite, 102 Cal. 113 (36 Pac. 424, 25 L. R. A. 312); People v. Stimer, 248 Mich. 272, 287 (67 A. L. R. 552).
In Denver v. New York Trust Co., 229 U. S. 123, 143 (33 Sup. Ct. 657), upon the claim that a proposed charter amendment in regard to the acquisition of a municipal water plant was a revision of the charter, the court said:
“The section is in form and in substance a mere amendment. It does not alter the form of the city government or make extensive changes in the existing charter, but is confined to matters pertaining to public utilities, more especially the acquisition, maintenance and operation of a municipal water plant. ’ ’
In State, ex rel. Miller, v. Taylor, 22 N. D. 362 (133 N. W. 1046), the Constitution provided for two State normal schools, and that no other institution of like character should be established without a revision of the Constitution. In holding that other schools could be established without revision, the court said:
“An examination of the Constitution and of this change in article 19 can lead to but one conclusion, and that is that in its essential elements the addition of one normal school to the public institutions enumerated is, as the word ‘amendment’ is understood popularly, and even generally understood in a legal sense, an amendment; that it calls for and necessitates no general review of the Constitution. It is unrelated to any other subject or article in the Constitution. No other paragraph is affected by the change, and its relation to the whole Constitution, and to each of its parts, is'such that we cannot assume that a review of a single remaining paragraph of the Constitution would be considered by anyone as necessary in connection with the increase of the number of public institutions to the- extent attempted. ’ ’
In State v. City of Portland, supra, upon a group of amendments to change the form of government from the common council to the commission system, the court, in holding they should be submitted as one amendment, said:
“The amendments amount to a general revision of the city charter, and are all germane to the general purpose sought to be accomplished.”
In People, ex rel. Moore, v. Perkins, 56 Col. 17 (137 Pac. 55, Ann. Cas. 1914D, 1154), by a divided court, it was held that proposals to alter the city charter to change the government from the common council to the commission form may be done by amendment. The case did not involve the distinction between revision and amendment as a method of changing the charter, but rested upon the language of the Constitution. The majority of the court stated the issue to be “whether these two amendments constitute a new charter or whether they are in fact amendments to the existing charter.” They held the proposals did not set up a complete “new charter,” that the word “amendment” as used in the Constitution was intended to be unqualified and unlimited in its scope, and said:
“It is true that the amendments are, in a way, a departure from the system heretofore provided for the management of the municipality. In this respect, they are different and are new, so far as the number of officials is concerned; but, regardless of this they are germane to the subject of municipal government, that is the only proper subject embodied in the charter, and they pertain to and affect this subject, 'each covering a separate and distinct branch thereof. * * *
“The amendments include such additional changes within the lines of the subject covered by the original instrument, viz., local self-government, as are thought will improve or better carry out the purposes for which it was framed.”
Two justices dissented, saying:
“While the so-called amendments are germane to municipal government, they are in no sense germane to, nor within the lines of the existing charter. On the contrary, they destroy each and every of the fundamental principles thereof; wipe out, as an entirety, the existing frame of government and substitute therefor another radically different in every substantial respect. The provisions of the existing charter which remain unaffected do not constitute the frame or form of government in any respect. They would necessarily be a part of any charter framed with due regard to the rights of the public. Provisions which would be proper in any charter are not the distinguishing features of government, and, therefore, cannot be employed as a criterion in determining whether a proposed change is in reality a new charter or an amendment to an existing* charter. The distinguishing feature of a charter of a municipality, or of the organic law of a State, is essentially the form and frame of government prescribed therein. * * *
“Now, the charter of the city and county o,f Denver is the organic law thereof, and constitutes the instrument that may be amended. That charter, therefore, is the subject of legislation, and a ‘charter amendment’ to it, therefore, to be proper, must be germane to the plan or scheme of government therein prescribed. And herein, to my mind, the ma jority opinion is most nnsonnd, contrary to authority and far-reaching in its evil effect. It declares, substantially, that any proposed change in the organic law of the municipality which is germane to any plan or scheme of municipal government, constitutes a proposed amendment, and, hence, that by an ‘amendment,’ an existing plan of government may be replaced by another entirely different. If this be true there can be no distinction between a ‘new charter’ and an ‘amendment’ of an existing charter, and the constitutional provisions prescribing a separate mode of procedure in the enactment of each are coalesced. If any measure germane to the subject of municipal government may be properly classed as an amendment to any charter for municipal government, as held in the majority opinion, then an ‘entire charter’ is only an amendment, for it relates to municipal government.”
See, also, Speer v. People, 52 Col. 325 (122 Pac. 768).
The reasoning of the dissenting opinion seems to us the better, especially as applied to a case where the statute draws a distinction between revision and amendment as a method of altering a charter and confines each to its own sphere. It is a specific instrument, the charter, as to which the change must be “within the lines” in order to constitute an amendment, not the general “subject of municipal government” or “local self-government.” The latter, however, is a proper and principal consideration on revision.
There is reason in the distinction made by the legislature. An amendment is usually proposed by persons interested in a specific change and little concerned with its effect upon other provisions of the charter. The machinery of revision is in line with our historical and traditional system of changing fundamental law by convention, which experience has shown best adapted to make necessary readjustments.
From the express implication arising from an advisory vote in proceedings for revision, from the difference in method providing for difference in character of changes, and from the proper meaning of the. words used, we are of the opinion that the statute must be construed to require that a change in the form of government of a home-rule city may be made only by revision of the charter.
Speaking generally and without stopping to examine the precise effect of those at bar, it is .evident that a proposal to increase the number of commissioners from five to nine, with the machinery necessary therefor, would be merely a change of detail and, therefore, an amendment. Sprister v. City of Sturgis, 242 Mich. 68. A change of powers might or might not require revision according to its nature and effect upon the charter as a whole. It is not contended that the proposals regarding city contracts and expenditures and diversion of revenues are not proper amendments.
The city manager, while holding office at the pleasure of the commission, is not a mere hired man. The charter constitutes him an executive officer of the city. His charter powers and duties extend to most departments of city affairs and he has superintendence of or part in most municipal activities. In some matters, his finding, or report is provided as a basis or a requisite to governmental action by the commission. His office is an integral part of the. form of government, and to abolish and transfer his duties and powers to the commission would result in a substantial change of such form.
The proposal to abolish the office does not contemplate a change confined to specific sections or arti cíes of the charter, but it roams through the whole of the instrument. The charter contains 203 sections, of which, of course, most are devoted to the powers and machinery of municipal operation common to charters generally. By counsel’s count, the city manager is mentioned in 67 places, and the proposed amendment would affect directly or by implication 52 sections of the charter. It would be impossible to ascertain the effect of the proposal without a minute examination of all portions of the charter devoted to the form of government and the exercise of powers and to most of the provisions for the operation of city affairs. To produce an orderly charter such as the legislature intended, the extent of the changes as well as their character, necessary to provide transfer of powers of the city manager to other officers, undoubtedly would require a revision.
The difference between statutory revision and amendment could hardly be better illustrated than by the proposal at bar. It provides for vesting the powers and duties of the city manager in the city commission, with authority to delegate them to certain city officers. Such delegation would be necessary because certain powers and duties are individual and cannot be exercised by a board. Some of them must be exercised in certain matters before the commission can act. To make the proper delegation, the city commission would need to make the same examination of the whole charter and distribution of powers and duties as would a charter commission, in order to render the government effective and prevent chaos. In other words, the proposal is in fact for revision of the charter by the city commission instead of by the body authorized by statute.
Both from the number of changes in the charter and the result upon the form of government, the pro posal to abolish the office of city manager requires revision of the charter and must be had by the method the statute provides therefor.
Judgment is reversed, and writ set aside, but without costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, and Butzel, JJ., concurred with Fead, J. Wiest, J., concurred in the result. | [
44,
7,
56,
-45,
-37,
29,
-5,
39,
-13,
45,
10,
-32,
-5,
46,
-6,
5,
-19,
15,
14,
25,
6,
-57,
-8,
-1,
-38,
7,
39,
-23,
-52,
-19,
47,
-58,
23,
18,
-27,
15,
-16,
24,
76,
-9,
33,
-3,
-45,
9,
-25,
-14,
25,
3,
-34,
3,
-92,
14,
5,
59,
-37,
-27,
-40,
-7,
0,
45,
-20,
32,
-30,
14,
-18,
-2,
-7,
23,
66,
-44,
-6,
-9,
11,
-46,
22,
19,
68,
-65,
-24,
34,
-71,
-2,
-52,
0,
47,
4,
-1,
2,
-2,
-39,
9,
-22,
-4,
29,
5,
-19,
17,
-37,
58,
-3,
-19,
-1,
-21,
-7,
-4,
-18,
-11,
26,
109,
-44,
-8,
0,
-27,
-37,
-32,
-16,
-5,
41,
-21,
-39,
43,
21,
-4,
-38,
-37,
-1,
9,
-37,
-37,
-12,
-17,
53,
35,
3,
37,
42,
-4,
13,
78,
30,
21,
19,
23,
3,
-44,
-35,
-31,
25,
1,
-1,
13,
31,
29,
8,
2,
-8,
-24,
-9,
52,
39,
-63,
46,
-22,
-18,
-44,
-23,
-46,
-19,
-2,
44,
-29,
-7,
-23,
-40,
58,
-50,
-28,
3,
-55,
-43,
-39,
79,
13,
4,
-1,
22,
-19,
-39,
5,
-85,
46,
-37,
-15,
-90,
13,
-2,
-5,
38,
-21,
-21,
-11,
-27,
-3,
-8,
-30,
-20,
-82,
16,
-7,
48,
-21,
-8,
-11,
51,
-2,
14,
-1,
-45,
50,
5,
0,
-22,
24,
12,
-26,
17,
28,
12,
14,
10,
15,
-18,
26,
-38,
26,
-5,
7,
17,
23,
51,
-13,
75,
28,
40,
-23,
22,
26,
-43,
27,
21,
2,
-5,
1,
15,
-2,
30,
-9,
-18,
-2,
-6,
44,
2,
42,
-25,
-45,
3,
16,
3,
-6,
64,
-28,
48,
-1,
3,
-29,
85,
-5,
-41,
-7,
-14,
-55,
-8,
8,
52,
-33,
38,
-5,
-17,
11,
-9,
-31,
17,
-16,
61,
50,
7,
17,
-1,
22,
-49,
-24,
51,
56,
33,
28,
-32,
-17,
-10,
24,
-32,
62,
10,
-81,
39,
-23,
-39,
33,
30,
29,
-15,
-10,
-8,
15,
-16,
-39,
-77,
75,
-7,
-55,
10,
47,
-50,
-10,
3,
49,
39,
69,
0,
-62,
-39,
0,
-35,
47,
41,
-11,
-16,
-26,
-54,
-96,
-20,
-33,
36,
-67,
-7,
-53,
-49,
-42,
-4,
-5,
-21,
1,
54,
-14,
-2,
0,
-1,
-4,
28,
10,
9,
4,
-8,
-13,
20,
38,
-27,
13,
44,
-25,
40,
-25,
-25,
25,
-58,
93,
-20,
46,
-8,
-37,
-46,
6,
5,
-53,
-1,
4,
5,
-27,
10,
-15,
8,
-44,
35,
-44,
27,
-45,
56,
3,
-12,
29,
18,
19,
15,
73,
-5,
0,
-17,
14,
-10,
79,
13,
-42,
35,
-13,
-20,
3,
-24,
-20,
-18,
55,
51,
-69,
-22,
31,
-41,
0,
-31,
-18,
-86,
-14,
-35,
-4,
-5,
23,
50,
-37,
-37,
6,
0,
-49,
16,
20,
38,
-44,
29,
21,
4,
-3,
91,
65,
-29,
-28,
-28,
6,
9,
-29,
3,
-73,
69,
39,
-18,
-48,
-23,
16,
32,
-41,
-25,
-12,
70,
-24,
-14,
10,
-22,
-11,
27,
-8,
27,
2,
27,
-44,
-27,
34,
27,
14,
6,
3,
82,
1,
13,
0,
8,
78,
7,
-63,
-15,
-22,
-19,
2,
9,
-2,
-3,
-8,
-34,
8,
40,
-23,
15,
-8,
-72,
-38,
-13,
-31,
-33,
-74,
-21,
11,
33,
18,
-1,
1,
28,
-2,
25,
-44,
37,
-41,
-2,
-43,
25,
8,
5,
27,
-4,
1,
30,
46,
7,
-36,
4,
5,
-15,
-43,
20,
-63,
-45,
-5,
16,
-32,
10,
-3,
60,
-31,
13,
57,
-13,
-8,
27,
-14,
6,
1,
-4,
40,
-24,
-46,
67,
-1,
4,
24,
10,
12,
-8,
18,
20,
-45,
39,
28,
5,
2,
-30,
0,
-17,
-15,
-8,
-28,
-6,
-36,
28,
26,
14,
1,
-39,
-15,
20,
-2,
20,
-47,
-50,
30,
-29,
5,
-33,
-31,
-91,
-9,
54,
25,
49,
-7,
-6,
27,
23,
-35,
-1,
50,
-41,
5,
-67,
50,
-34,
25,
14,
-6,
-6,
-8,
-23,
10,
-31,
-22,
13,
62,
-29,
11,
8,
-24,
-35,
40,
50,
4,
52,
57,
22,
-12,
38,
-14,
-46,
38,
10,
-15,
68,
-2,
-8,
32,
24,
23,
17,
17,
30,
48,
6,
11,
15,
26,
37,
40,
-25,
1,
-5,
33,
16,
-5,
-5,
-30,
67,
-77,
-17,
16,
-46,
13,
-8,
-5,
-14,
25,
-56,
35,
-8,
62,
56,
-34,
17,
-56,
7,
-18,
-33,
-21,
21,
-82,
23,
11,
18,
29,
-58,
-27,
-53,
-47,
20,
51,
-31,
-2,
11,
-1,
13,
-6,
-2,
-60,
15,
22,
11,
2,
-8,
18,
9,
-26,
-27,
-8,
-51,
8,
11,
-21,
4,
37,
-16,
-20,
-28,
25,
-23,
-9,
18,
-13,
-22,
-45,
44,
2,
-17,
14,
3,
-66,
26,
-49,
55,
9,
23,
-42,
-57,
30,
66,
6,
1,
13,
71,
-5,
-3,
61,
-10,
-18,
-11,
24,
-70,
-38,
-26,
15,
-34,
-1,
-5,
-4,
-16,
27,
-39,
-28,
13,
-17,
0,
10,
-28,
-12,
24,
40,
38,
-14,
-30,
40,
1,
-4,
14,
-12,
5,
-12,
30,
-83,
20,
-14,
-2,
-24,
-34,
-9,
45,
62,
-40,
11,
-11,
-63,
-32,
23,
-29,
41,
6,
-5,
7,
32,
31,
0,
33,
43,
39,
-3,
-26,
-14,
-32,
-34,
38,
20,
20,
-4,
-48,
14,
0,
-64,
-22,
-36,
18,
-24,
-6,
-9,
59,
-17,
-47,
29,
15,
35,
-10,
12,
-13,
-5,
114,
43,
-10,
-52,
-54,
-28,
-9,
42,
53,
-32,
-43,
32,
-31,
52,
4,
-22,
-19,
-74,
-18,
-4,
52,
-25,
-23,
3,
34,
-27,
2,
9,
54,
79,
-52,
3,
42,
-5,
23,
17,
-40,
-58,
4,
2,
-32,
30,
-46,
-86,
29,
25,
-15,
-25,
7,
30,
14,
-3,
-27,
7,
-29,
-30,
-48,
-11,
63,
28,
21,
-41,
-13,
-39,
-27,
-27,
6,
23,
26,
-15,
-63,
-32,
0,
32,
-34,
28,
44,
23,
-15,
-50,
-24,
23,
-28,
-1,
25,
-51,
-10,
-5,
-50,
-63,
28,
48,
52,
35,
21,
15,
53,
-43,
-21,
8,
-2,
68,
35,
16,
-41,
-43,
-67,
-43,
13,
38,
30,
-42,
44,
10,
-46,
-15,
-33,
56,
32,
37,
25,
61,
31,
-21,
28,
51,
-47,
-58,
-18,
1,
-17,
44,
-46,
-32,
-50,
-34,
8,
-7,
14,
53,
24,
-31,
-17,
-9,
-20,
-9,
-23,
19,
21,
-19,
-7,
37,
73,
-80,
33,
4,
30,
-20,
-35,
59,
-22,
-26,
-5
] |
Wiest, J.
The information charged defendants with conspiring to obtain money by false pretenses, subtle means and devices, from five named persons. Defendants were convicted and prosecute review.
Defendants operated a private bank and received money to be forwarded to Italy, and, it was claimed, converted the same to their own use. There was also a count in the information for larceny by conversion, but this was waived by the prosecution at the close of all proofs.
The court was requested to instruct the jury as to what would constitute subtle means, devices, and false pretenses, but failed to do so.
The information charged a conspiracy to defraud. This necessarily involved a combination to accom plish a fraud. We find no evidence justifying the finding of a conspiracy. It appears that persons, without solicitation other than the existence of a bank, deposited money to be forwarded to Italy, and such money was not forwarded by defendants. Whether this constituted the crime of larceny by' conversion we need not determine, for such charge was withdrawn.
To constitute a conspiracy, there must exist a combination to accomplish an unlawful end, or a.lawful end by unlawful means.
The verdict was not supported by the proofs, and the convictions are reversed and new trials granted.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
12,
11,
-3,
-9,
-1,
-3,
2,
-10,
-15,
35,
61,
-1,
36,
7,
-56,
-19,
-8,
13,
10,
-24,
34,
-51,
19,
-2,
-23,
-31,
68,
10,
28,
67,
51,
-15,
52,
-22,
-45,
-16,
14,
15,
34,
-71,
16,
29,
-39,
20,
6,
32,
-31,
-61,
0,
-33,
54,
9,
42,
3,
37,
-31,
2,
-28,
37,
38,
25,
-20,
5,
-4,
-39,
-35,
3,
-19,
-33,
-11,
-40,
-19,
-12,
-14,
1,
-34,
-41,
28,
-74,
21,
24,
-37,
1,
8,
-1,
9,
-29,
-36,
-34,
-33,
35,
28,
-10,
-48,
-29,
32,
63,
38,
10,
-18,
3,
-27,
-57,
12,
31,
29,
-20,
-43,
-6,
2,
-30,
-4,
0,
-20,
12,
-7,
-39,
2,
14,
-50,
-101,
-23,
15,
29,
-18,
-39,
-21,
0,
-23,
-13,
-23,
7,
-65,
36,
-32,
53,
-22,
-5,
-5,
1,
1,
24,
-5,
19,
-23,
61,
-18,
21,
37,
0,
-27,
-63,
51,
28,
6,
1,
-69,
-20,
-4,
-45,
-9,
30,
-7,
-39,
9,
-17,
-44,
-13,
13,
7,
-6,
36,
-23,
4,
2,
-33,
11,
-54,
-30,
-14,
13,
42,
4,
64,
7,
-10,
1,
-6,
31,
-61,
24,
26,
-26,
48,
19,
-15,
5,
-7,
52,
-34,
-71,
-9,
-25,
36,
-12,
37,
-18,
10,
33,
-1,
5,
-34,
14,
-39,
0,
-4,
-28,
-1,
18,
-16,
-25,
42,
-3,
-16,
-49,
-9,
-23,
42,
0,
80,
-33,
7,
13,
-9,
-39,
-1,
33,
12,
52,
10,
-26,
-8,
-18,
-52,
24,
7,
43,
14,
-25,
-26,
17,
6,
-9,
19,
-54,
0,
55,
-43,
-11,
0,
-17,
3,
-27,
49,
14,
-26,
29,
30,
-58,
-7,
-52,
-70,
-25,
-78,
-29,
-4,
-65,
0,
-8,
67,
35,
41,
35,
40,
-4,
37,
-1,
29,
18,
37,
19,
30,
13,
-5,
43,
35,
34,
-21,
-18,
-10,
10,
-36,
62,
12,
8,
-2,
21,
7,
-59,
-30,
44,
2,
22,
-7,
58,
5,
0,
-13,
1,
0,
1,
49,
35,
-48,
45,
-16,
59,
-79,
18,
7,
-36,
32,
-4,
9,
-35,
10,
47,
1,
-34,
-49,
-35,
-16,
-9,
-50,
-7,
-15,
-10,
-21,
-33,
-22,
12,
53,
20,
12,
-11,
6,
-29,
-8,
27,
12,
62,
-1,
-13,
30,
23,
34,
-2,
-1,
-20,
64,
-37,
-57,
-57,
15,
11,
8,
-8,
27,
-32,
-16,
-18,
-19,
41,
10,
-14,
-14,
-26,
11,
-21,
37,
-13,
65,
22,
15,
-6,
-12,
-2,
2,
-12,
-31,
-13,
80,
63,
-11,
-72,
10,
39,
-30,
-19,
2,
23,
-15,
50,
-14,
-25,
-32,
13,
-40,
58,
8,
3,
26,
-5,
-7,
-1,
25,
-35,
37,
-27,
-47,
-15,
-1,
-16,
-47,
-23,
14,
1,
2,
-2,
0,
10,
-7,
-41,
48,
21,
-10,
-39,
-61,
45,
18,
24,
25,
-22,
-57,
57,
31,
10,
-50,
49,
12,
20,
-23,
36,
-15,
54,
-21,
-2,
-46,
45,
-49,
3,
-12,
11,
54,
-17,
42,
-13,
42,
-4,
-16,
13,
2,
17,
-50,
11,
-38,
-27,
-14,
-39,
6,
8,
-19,
26,
6,
-35,
-5,
-33,
-29,
5,
2,
-7,
18,
21,
-29,
3,
25,
-49,
-26,
28,
37,
-2,
-6,
20,
-15,
-55,
-32,
-6,
-13,
-40,
64,
-9,
-26,
23,
32,
-34,
1,
-1,
3,
-3,
-13,
10,
-60,
62,
-27,
20,
-58,
1,
-44,
14,
1,
-43,
31,
-8,
50,
4,
24,
18,
-90,
6,
-18,
-30,
4,
51,
38,
-36,
21,
55,
-19,
-49,
-39,
-96,
19,
33,
-15,
42,
-18,
11,
28,
47,
-44,
-3,
37,
-1,
75,
-35,
29,
21,
0,
-38,
-20,
57,
24,
-24,
-48,
3,
80,
-4,
-17,
-36,
-34,
34,
24,
42,
-8,
55,
-24,
12,
-19,
-15,
42,
-11,
-14,
-41,
-33,
-9,
-67,
0,
33,
-45,
-39,
48,
4,
18,
85,
41,
43,
-32,
9,
-6,
18,
-6,
2,
-27,
-4,
4,
-11,
-2,
-16,
1,
-12,
-20,
12,
-36,
-10,
-22,
4,
-16,
13,
-20,
-19,
31,
30,
-14,
-15,
24,
18,
48,
14,
42,
30,
26,
13,
24,
-42,
-7,
22,
13,
-41,
-42,
-11,
-1,
14,
-17,
56,
17,
4,
-9,
-6,
43,
-46,
0,
-80,
20,
2,
31,
-43,
-42,
-1,
-25,
-3,
19,
-30,
-8,
-33,
-19,
11,
9,
-15,
8,
35,
17,
17,
-41,
36,
55,
-1,
25,
-87,
-5,
-13,
30,
-47,
3,
4,
12,
-1,
-7,
-22,
-22,
25,
4,
-33,
-22,
25,
-3,
-54,
-39,
4,
-32,
-31,
-59,
-31,
72,
-23,
5,
6,
13,
-8,
5,
4,
20,
-13,
15,
30,
13,
62,
-45,
29,
49,
28,
42,
1,
6,
15,
-9,
-19,
-1,
-37,
56,
-4,
47,
21,
50,
0,
-55,
13,
-11,
6,
15,
-48,
-15,
53,
-21,
-58,
0,
-29,
-67,
24,
20,
-19,
-48,
-54,
-38,
19,
-77,
84,
-31,
-11,
83,
38,
-11,
41,
-4,
26,
65,
-41,
-39,
20,
10,
54,
-16,
38,
18,
9,
-22,
39,
-24,
57,
27,
-6,
3,
43,
10,
30,
-59,
77,
29,
19,
5,
-17,
1,
-37,
-25,
-41,
-15,
26,
24,
-23,
25,
-59,
-3,
15,
29,
-71,
20,
64,
-25,
-50,
-61,
-9,
-24,
10,
7,
-19,
21,
54,
6,
-37,
-8,
-20,
-28,
-19,
4,
29,
35,
-24,
19,
30,
-22,
-26,
31,
10,
-20,
-25,
-17,
36,
-10,
56,
12,
13,
27,
31,
2,
-30,
-27,
-39,
1,
72,
15,
-7,
-22,
41,
-41,
41,
38,
23,
-5,
40,
-7,
-4,
37,
89,
-8,
3,
-23,
-20,
9,
25,
-5,
17,
-36,
-53,
-31,
-15,
76,
-24,
6,
-52,
24,
23,
-1,
18,
-93,
-3,
24,
1,
0,
63,
-30,
13,
29,
2,
19,
-7,
-9,
49,
76,
-4,
-22,
9,
23,
0,
3,
22,
0,
-15,
-8,
28,
0,
1,
-2,
31,
-23,
-22,
-27,
-37,
-26,
14,
26,
2,
-15,
-12,
-20,
14,
4,
11,
-37,
28,
17,
-31,
-13,
2,
-17,
-17,
26,
35,
-6,
-30,
-13,
-72,
-83,
-26,
-14,
-17,
22,
-5,
14,
-29,
15,
45,
-21,
-2,
-19,
-65,
39,
-35,
34,
-5,
2,
-46,
1,
-20,
-27,
10,
26,
-6,
14,
24,
-8,
-37,
25,
-70,
-11,
-22,
-47,
-23,
14,
-54,
-53,
-83,
-2,
-1,
48,
-16,
40,
5,
15,
32,
11,
-37,
-16,
4,
40,
42,
-17,
-15,
-17,
-22,
27,
14,
-24,
60,
-2,
69
] |
Sharpe, J.
The facts in this case are clearly and concisely stated by the trial court as follows:
“The plaintiff holds a mortgage on a parcel of land in Ottawa county given by defendant Snoeyink, in the year 1925. This was a second mortgage, Snoeyink and wife having given to the Hudsonville State Bank in the year 1915 a mortgage in the sum of $2,600. In the spring of this year the interest on both mortgages was past due, and taxes for two years were unpaid. The cashier of the Hudsonville State Bank called to see the Snoeyinks regarding the payment of taxes and interest, and, on a second visit, without informing the cashier that he had given a second mortgage, the defendant Snoeyink agreed to execute a quitclaim deed of the premises in order to save foreclosure of the bank mortgage. Mr. McEachron, the cashier, had a blank deed with him and they went in the house and explained the matter to Mrs. Snoeyink, and both she and her husband signed the quitclaim deed which McEachron had run to Miss Angie Pellegrom, his sister-in-law. After the deed had been executed, the Snoeyinks told McEachron that they had given and there was outstanding a second mortgage on the premises, which is the mortgage held by the plaintiff. McEachron told them that inasmuch as such a second mortgage had been given, it was probable the quitclaim deed they had just executed could not be used, as it would be necessary to foreclose the mortgage in any event. He further said he was going to Grand Haven to pay up the taxes on the property and would see an attorney and find out if his idea of the law was correct. He did this, and then informed the Snoeyinks on a later visit that the deed could not be used, but he did not return the deed to them, and now it appears that it has been mislaid. The deed never was recorded.
“The plaintiff files this bill to foreclose the second mortgage, and asks that the same be held to be a first mortgage on the premises inasmuch as she claims the Hudsonville State Bank obtained a deed to the premises, and, therefore, the title rests in the bank, which, in effect, cancels the bank’s mortgage. There is no question but what the deed to Miss Pellegrom was executed in order to pass the title to her as trustee for the bank. However, I am of the opinion that no title passed under the quitclaim deed, in view of all the circumstances in this case. Both McEachron and Snoeyink testified in court and they are in accord that the first information regarding the second mortgage was given to McEachron by Snoeyink after the deed had been executed, and that immediately McEachron informed Snoeyink in the presence 'of Mrs. Snoeyink that in his view of the case the deed would have no effect, which opinion he later confirmed. The bank has since foreclosed its mortgage by advertisement, and the sale was made October 15,1931, as I remember it. Of course, all parties have one year from that day in which to redeem. ’ ’
He concluded as a matter of law that plaintiff’s mortgage was subject to that held by the bank, and that, to entitle plaintiff to the benefit of foreclosure, she must redeem from the sale thereof before the time for redemption expired, and decreed accordingly. Plaintiff has appealed.
The acceptance of the deed by McEachron, acting for the bank, was conditional on its not operating as a discharge of the bank’s mortgage, and, when advised that it would have that effect, the Snoeyinks were informed that it could not be accepted as a release of their interest in the property. The deed should have been returned to them, but the omission to do so did not entitle the plaintiff to rely thereon as a merger of the mortgage held by the bank with their title and thus prevent foreclosure. In our opinion the case was properly decided. See Anderson v. Thompson, 225 Mich. 155, and cases cited.
The decree rendered is affirmed, with costs to the appellees.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-9,
42,
-19,
4,
-56,
3,
30,
53,
17,
26,
17,
-30,
34,
25,
11,
18,
9,
-6,
-15,
-9,
-32,
-59,
-19,
-23,
-2,
-5,
16,
-63,
16,
-7,
25,
-28,
-40,
49,
13,
-18,
7,
-1,
-15,
-35,
-15,
-17,
-1,
-24,
0,
-10,
-11,
-24,
-24,
9,
11,
-35,
19,
-16,
5,
10,
-24,
27,
-31,
12,
50,
-24,
-11,
13,
-42,
5,
0,
0,
23,
-24,
13,
-22,
-30,
-63,
36,
24,
-39,
40,
-53,
4,
-18,
-53,
24,
-5,
-40,
-35,
-22,
-56,
-23,
14,
-14,
51,
12,
30,
18,
11,
-12,
42,
19,
53,
1,
15,
46,
42,
-21,
-20,
-8,
-78,
-67,
-17,
-34,
8,
85,
33,
-15,
-64,
9,
-1,
11,
36,
15,
-2,
-20,
-61,
37,
41,
-42,
-5,
-5,
-18,
4,
-29,
-34,
52,
-23,
-48,
15,
-38,
16,
-23,
34,
24,
-18,
-33,
-36,
-9,
-2,
-16,
36,
4,
-91,
40,
4,
23,
-10,
3,
-5,
-31,
7,
-38,
10,
16,
12,
-6,
-95,
-19,
8,
34,
10,
-6,
62,
17,
-69,
10,
21,
-2,
13,
-10,
26,
-7,
24,
31,
32,
11,
-2,
-25,
6,
-27,
35,
47,
0,
-36,
6,
-9,
-63,
58,
-30,
-6,
-2,
-20,
-14,
-26,
31,
-18,
11,
-17,
62,
-29,
-4,
11,
-63,
-28,
-46,
-31,
-32,
24,
1,
-21,
26,
-29,
13,
69,
2,
-5,
-67,
-1,
52,
5,
22,
-3,
-21,
14,
-34,
5,
-22,
-4,
26,
33,
-13,
16,
-4,
-30,
17,
37,
-34,
-36,
-30,
-13,
-14,
27,
-48,
-37,
-44,
27,
1,
13,
-10,
-15,
8,
13,
27,
36,
-37,
-41,
-22,
-19,
-11,
-16,
-12,
-9,
2,
7,
24,
34,
-35,
-42,
-6,
7,
-53,
34,
36,
0,
20,
39,
18,
8,
15,
38,
10,
20,
-14,
-22,
-15,
-12,
6,
-16,
-2,
-53,
22,
6,
-62,
-39,
3,
14,
-17,
6,
-22,
-66,
-15,
3,
45,
9,
3,
6,
39,
2,
-45,
15,
0,
23,
45,
-32,
-20,
-12,
10,
10,
35,
-15,
-15,
35,
13,
-36,
-18,
3,
18,
3,
19,
-33,
-24,
-1,
5,
30,
-29,
-21,
57,
4,
-2,
21,
-1,
-3,
2,
13,
-14,
56,
-44,
-12,
2,
24,
-3,
-1,
35,
24,
-10,
-39,
-20,
16,
6,
-2,
37,
33,
12,
-10,
-29,
-16,
-15,
-27,
-44,
-25,
-9,
21,
23,
1,
36,
55,
26,
17,
-19,
-44,
-34,
-14,
-32,
-36,
8,
14,
16,
-28,
-7,
-18,
-51,
-55,
-3,
-9,
2,
13,
-72,
-1,
0,
-42,
12,
19,
29,
-38,
-29,
1,
-29,
7,
-4,
-3,
31,
-8,
4,
35,
-48,
0,
19,
-9,
-40,
34,
38,
-23,
-7,
82,
2,
8,
57,
27,
-56,
46,
18,
52,
33,
0,
10,
-4,
10,
-10,
-54,
-45,
19,
35,
12,
38,
29,
13,
19,
-8,
29,
-39,
-10,
-39,
60,
-57,
7,
-13,
-8,
-15,
-15,
-53,
-9,
29,
22,
17,
15,
-26,
0,
5,
23,
28,
-22,
17,
35,
10,
35,
9,
0,
-38,
-16,
-10,
29,
1,
21,
11,
49,
25,
0,
-20,
-27,
-3,
-23,
-2,
9,
-12,
1,
-6,
1,
-12,
-1,
-22,
9,
31,
-17,
13,
11,
39,
-25,
5,
23,
6,
17,
61,
0,
-20,
-2,
-37,
-15,
9,
5,
21,
-21,
27,
-39,
12,
-32,
12,
12,
27,
37,
-52,
21,
28,
-35,
31,
-20,
48,
-17,
-28,
-4,
-32,
0,
38,
-37,
-7,
24,
30,
-8,
-6,
24,
-38,
4,
-25,
-8,
-8,
14,
-34,
21,
-50,
32,
-38,
-51,
-84,
-17,
-37,
12,
13,
-18,
-21,
-48,
-49,
-10,
34,
0,
17,
17,
-36,
24,
51,
32,
24,
10,
41,
-25,
22,
12,
15,
-22,
-12,
-17,
14,
-37,
-19,
-57,
8,
-25,
0,
-26,
-40,
2,
30,
7,
23,
-13,
20,
10,
69,
-21,
-3,
13,
-44,
-28,
-23,
32,
60,
-3,
7,
-35,
-9,
61,
9,
-16,
3,
16,
2,
45,
-26,
-21,
-11,
2,
-34,
-1,
-12,
-29,
-29,
-64,
0,
6,
23,
-55,
-21,
39,
-23,
4,
47,
12,
17,
21,
11,
3,
-32,
46,
-28,
80,
-26,
-29,
15,
-8,
-27,
58,
14,
27,
17,
25,
8,
74,
0,
-23,
-20,
-3,
0,
32,
-18,
33,
-25,
22,
14,
26,
-23,
43,
-22,
3,
3,
4,
21,
-33,
0,
-60,
-23,
-9,
62,
-10,
-8,
96,
-23,
1,
-21,
-50,
7,
16,
1,
-36,
38,
-2,
51,
4,
10,
-17,
20,
29,
21,
0,
46,
-6,
-38,
1,
-45,
8,
-34,
27,
-23,
-24,
28,
-16,
13,
-43,
12,
-42,
35,
14,
46,
-15,
-20,
-21,
9,
-21,
5,
-5,
4,
-5,
22,
-10,
1,
12,
39,
0,
-17,
-9,
6,
20,
-18,
-34,
-13,
0,
26,
-5,
-4,
-10,
15,
6,
-30,
-12,
-19,
-67,
14,
-29,
-23,
41,
18,
-9,
-42,
51,
1,
10,
0,
-2,
-25,
49,
-51,
15,
7,
73,
12,
-13,
-18,
-47,
0,
-22,
16,
10,
16,
51,
-21,
-15,
11,
-37,
8,
51,
32,
-35,
30,
7,
9,
-13,
-40,
26,
-37,
-30,
23,
8,
33,
-15,
-1,
8,
38,
-38,
-17,
-5,
29,
-13,
21,
-64,
19,
18,
-30,
-8,
16,
17,
-86,
1,
-11,
-3,
3,
-28,
-12,
-1,
8,
-4,
-21,
20,
-17,
21,
-69,
-1,
2,
36,
0,
-22,
23,
0,
59,
20,
-12,
19,
-9,
-24,
-29,
50,
-22,
-24,
47,
8,
22,
7,
-1,
-28,
15,
57,
4,
40,
25,
29,
-32,
-73,
46,
-2,
49,
-48,
-5,
19,
-4,
25,
0,
-7,
45,
14,
9,
-6,
4,
-15,
-46,
-18,
-5,
36,
-26,
-38,
-7,
-8,
-29,
3,
34,
64,
46,
-46,
-23,
-6,
-59,
-66,
1,
-6,
-7,
-6,
26,
-4,
-19,
8,
1,
-2,
-35,
9,
-8,
-2,
24,
16,
78,
-32,
20,
5,
-9,
47,
-15,
-11,
-10,
3,
-18,
23,
41,
-41,
41,
64,
-9,
7,
57,
-26,
-23,
48,
36,
-12,
-21,
-18,
-64,
9,
8,
12,
11,
3,
-15,
17,
29,
58,
13,
-8,
-8,
-32,
-24,
15,
-31,
-7,
9,
45,
14,
24,
-18,
30,
-36,
-40,
75,
-44,
-8,
4,
-26,
-78,
22,
20,
-5,
27,
-16,
-18,
-29,
26,
-24,
-14,
-18,
68,
26,
41,
7,
41,
1,
26,
18,
-22,
-21,
-45,
-8,
34,
-1,
25,
-18,
18,
51,
-25,
14,
48,
3,
-47,
61
] |
North, J.
Defendants have appealed from an award of compensation to plaintiff. The sole question presented is whether an employee whose contract for employment is entered into in Michigan with a resident employer who is under the work men’s compensation act (2 Comp. Laws 1929, § 8407 et seq.), for services to be rendered wholly outside of the State of Michigan is within the terms of the act so that, if otherwise entitled thereto, he may be awarded compensation notwithstanding the accident occurred in another State and that the employee was at no time a resident of Michigan.
Appellants contend that plaintiff, not hewing been a resident of Michigan, not having rendered any services to his employer in Michigan, and having received his injury outside of this State, is not within the provisions of the Michigan compensation law and therefore not entitled to be awarded compensation. Appellants rely upon the 1921 amendment (herein quoted) to the Michigan compensation act; and at least inferentially seem to concede that prior to this amendment an employee who contracted in this State for employment with a resident employer for services to be rendered outside the State would be protected by the act notwithstanding the employee at the time of accident was a nonresident and sustained his injury outside the State. It is appellee’s position that notwithstanding the amendment he is within the terms of the act. As hereinafter noted, we think there is such a conflict between the different portions of the amended act as necessitates statutory construction.
The Michigan workmen’s compensation statute was enacted in 1912. It is not compulsory, but instead, is optional with both employer and employee. Its provisions are read into and become part of the contract of employment if the parties have elected to become subject to the act. As is general in such acts, it provides in section 1 of part 1 that certain specified common-law defenses shall not be available to the employer in an action to recover damages for the death or injury of an employee sustained in the course of his employment; and in sections 3, 6, and 7 (pt. 1) of the act it is provided:
“Seo. 3. The provisions of section one shall not apply to actions to recover damages for the death of, or for personal injuries sustained by employees of any employer, who has elected * * * to pay compensation in the manner and to the extent hereinafter provided.” (2 Comp. Laws 1929, § 8409.)
“Seo. 6. Such election on the part of the employers mentioned in subdivision two of the preceding section, shall be made by filing’ with the industrial accident board, hereinafter provided for, a written statement to the.effect that such employer accepts the provisions of this act for all Ms businesses, and to cover and protect all employees employed in any and all of his businesses including all businesses in which he may engage and all employees he may employ while he remains under this act.” (As amended by Act No. 64, Pub. Acts 1919 [2 Comp. Laws 1929, § 8412].)
“Sec. 7. The term ‘employee’ as used in this act shall be construed to mean: * * * Every person in the service of another under any contract of hire, express or implied.” (2 Comp. Laws 1929, § 8413.)
The legislature of 1921 amended the Michigan compensation act. This amendment re-enacted the portion of section seven above quoted, and added section 19, part 3 (2 Comp. Laws 1929, § 8458), which reads:
“Sec. 19. The industrial accident board shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this State, in those cases where the injured employee is a resident of this State at the time of the injury, and the contract of hire vas made in this State, and any such employee or his dependents shall be entitled to the compensation or death benefits provided by this act. ’ ’
As noted above, appellants’ contention of nonliability is based upon the portion'of the above-quoted section 19, part 3, which gives the industrial accident board jurisdiction over controversies arising out of industrial accidents occurring outside the territorial limits of Michigan “in those cases where the injured employee is a resident of this State at the time of his injury” and the contract of employment was made within the State. Appellants assert that the statutory requirement as to residence at the time of injury constitutes a limitation upon the jurisdiction of the industrial accident board. This contention would come with much, if not controlling, force if it were not in conflict with other portions of the statute. It is quite significant that this recital as to the employee being a resident at the time of injury was embodied by the amendment in the procedural part (part 3) of the act only; but was not inserted in the part of the act (part 1) which defines and fixes the rights and liabilities of employers and employees. In construing this act this fact was somewhat stressed in Crane v. Leonard, Crossette & Riley, 214 Mich. 218, 230 (18 A. L. R. 285, 20 N. C. C. A. 621). Further, the quoted portion of section- 6 seems conclusive of the fact that the original enactment was intended to cover “all employees” regardless of residence or the locus of the accident. No one has ever questioned, and it would seem that it could not be successfully questioned, that the Michigan compensation act expressly provides compensation for the dependents of a fatally injured resident employee without regard to whether such dependents are residents or nonresidents. It is not uncommon for dependents to be awarded compensation notwithstanding they are of foreign birth and have never resided in this country. As a matter of legislative policy it would be quite inconsistent, to say the least, to deny compensation to an injured employee on the ground that he was a nonresident, but in case of fatal injury to award compensation to his dependents regardless of residence or citizenship. In the absence of a clearly expressed provision in the statute which necessitates such a strange result the legislative intention to accomplish it ought not to be read into the act. If the 1921 amendment were to be construed in accordance with appellants ’ contention it would work a radical change in the scope and effect of the act. We cannot conceive of the legislature intending or attempting to accomplish such a result inferentially, as it were, by including the single quoted phrase in section 19 of part 3. If the legislature intended to so amend the statute, clearly it required a .change in section 6 of part 1, above quoted, which is in no way referred to or changed by the amendatory act. That the legislature did not intend by the 1921 amendment to modify the act in the manner appellants assert is almost conclusively disclosed by the fact that the amendatory act covers section 7 of part 1; and as above stated again re-enacted that portion which defines as an employee “every person in the service of another under any contract of hire. ’ ’ This re-enacted portion of section 7 is in full harmony with the original provision in section 6 that the employer’s election to come under the act is an election “to cover and protect all employees employed in any and all * * businesses” of the employer. While it must be conceded that there is some conflict between the various quoted provisions of the act as amended, we are satisfied that the rea sonable construction and the one necessary to carry out the legislative intent appearing from the whole act is that it covers nonresident as well as resident employees in those cases wherein the contract of employment is entered into in this State with a resident employer.
While not necessarily controlling, a fact worthy of consideration and somewhat persuasive is that the department of labor and industry since the amendment of 1921 has uniformly held the Michigan compensation act applicable to nonresident employees, in accordance with the statutory construction above adopted. Such was the holding of the industrial accident board in McCrary v. Beckwith Co., opinion filed March 19, 1925. In that hearing the defendants urged the same contention as do appellants here. If the legislature did not intend the amended act to be thus construed, we think it would have clearly so indicated by using a few simple words to that effect in the 1921 amendatory act; or at least since the department placed its construction on the amended act, if inconsistent with the legislative intention the act would have been amended again in the intervening years in such a way as to place beyond doubt and render effective the legislative purpose and intent.
While our construction of the amended act is determinative of the controlling question' here presented, we think it proper to add that in holding the workmen’s compensation act applicable to employees contracting in Michigan with resident employers, notwithstanding the employee is a nonresident at the time of the accident, we sustain a construction which is in accord with the humane purposes of the act and also is in accord with the construction of optional compensation acts in several other jurisdictions where the rights of a nonresident employee were in volved. Beall Bros. Suppy Co. v. Industrial Commission, 341 Ill. 193 (173 N. E. 64); Hopkins v. Matchless Metal Polish Co., 99 Conn. 457 (121 Atl. 828); Falvey v. Sprague Meter Co., 111 Conn. 693 (151 Atl. 182); and Jenkins v. T. Hogan & Sons, Inc., 177 App. Div. 36 (163 N. Y. Supp. 707), which case may be said to have been decided on the theory that the employee was a resident of New York, although it appears rather conclusively that he was in fact a resident and citizen of New Jersey. See, also, Festervand v. Laster, 15 La. App. 159 (130 South. 634), which is not a compensation case but which does involve a consideration and discussion of the workmen’s compensation act, and wherein it is said:
“The general rule is that, unless the act expressly provides for no extraterritorial effect, the workmen’s compensation act has extraterritorial effect; and if one be employed in Louisiana by a Louisiana concern to perform labor and be sent into another State to perform that labor and is injured or killed accidentally in the course of his employment in that other State, he or his dependents can collect compensation under the Louisiana law, although the work was being performed in another State and the' injury or death occurred in such other State. If this be true, we see no reason to limit the exemption from seizure (attachment) contained in the act to residents of this State only.
“In the case of Western Metal Supply Co. v. Pillsbury, 172 Cal. 407 (156 Pac. 491, 495, Ann. Cas, 1917E, 390, 12 A. L. R. 1207, note), the court said:
“ ‘The legislature lias determined that the employment of labor in given pursuits entails upon the employer certain responsibilities toward the persons performing the labor and those dependent upon them. There is no constitutional or rational ground for limiting the benefits of this legislative scheme to citizens or residents of this State.’ ”
Adjudications to the contrary will be found in other jurisdictions. Some of these are based upon the express provisions of the particular compensa tion act, and in some of them the adjudicated limitation seems to be read into the act. But as indicative of the growth and development of the law in this and other States in the direction of rendering it effective extraterritorially, see Bradbury, Workmen’s Compensation (3d Ed.), p. 92, quoted by the late Justice Fellows in Crane v. Leonard, Crossette & Riley, supra, 221; also 1 Honnold on Workmen’s Compensation, § 8, where it is said:
“In view of the conflict of authority and differences between the various acts, it is difficult to formulate a precise rule relative to the extraterritorial operation of these laws; but it may be stated on the weight of authority that acts not construed to be contractual in character do not, in the absence of unequivocal language to the contrary, apply where the injury occurs outside the State, while, on the other hand, acts construed to be contractual protect one injured outside the State, where the contract of employment was made within the State and is governed by the laws of the State.”
While the question under consideration was the locus of the accident rather than the residence of the employee as being controlling, we think the following quotation embodied in the opinion of Mr. Justice Fellows in Crane v. Leonard, Crossette & Riley, supra, is at least somewhat indicative of the trend of the law in this jurisdiction, especially as to its extraterritorial application:
“If the workmen’s compensation acts of the several States are to be given effect so as to make them general in their application, they must be held to apply to injuries to employees wherever they occur. If accidents occurring without the State are to be in one class and accidents occurring within the State are to be in another class, every State might have a workmen’s compensation act and yet both the old (common law liability) and the new systems would still be in force and the legislative purpose would not be accomplished. The construction here placed upon the act will give the legislative intent full effect, and if recognized by the courts of sister States will give every employee the remedy provided by the workmen’s compensation act under which his contract of employment was made.” Anderson v. Miller Scrap Iron Co., 169 Wis. 106 (170 N. W. 275, 171 N. W. 935).
In connection with the above quotation Mr. Justice Fellows adds:
“The authorities, and particularly the later ones, lead irresistibly to the conclusion that where the act is an optional one, as is ours, the relations are contractual and the provisions of the act become a part of the contract of employment, the employer agreeing to pay and the employee agreeing to accept compensation in case of accident in accordance with the provisions of the act. That the relation under our act is contractual has been recognized by this court. * * * The rights being contractual accompanied the employee wherever he went within the ambit of his employment. This construction is within the legislative intent when we consider the purposes of the act. And this is the construction it must receive at our hands. ’ ’ Crane v. Leonard, Crossette & Riley, supra, 228, 231.
We think with much the same force it can be said that, in the absence of an expressed provision to the contrary, which we do not construe the statute to contain, there is no ground for holding that an employee, otherwise within the terms of the act, forfeits his protection thereunder merely because he is a nonresident living across the State line. In this connecti.on it may be noted that if appellants ’ theory as to nonresidence being controlling is accepted, a nonresident employee who entered into a contract for employment in this State would not be protected by the compensation act even in cases wherein the injury occurred in this State. We are convinced the legislature by the amendment of 1921 did not so intend. It would also seem to lead to this anomalous situation: Without the consent or knowledge of the employer one employed in this State by changing his residence from without the State to one within the State would automatically place himself within the act, or if during his employment should become a nonresident he would not thereafter be bound by the act, and could maintain a common-law action against his employer notwithstanding the employer had elected to come under the act. While they do not involve the question of residence, as to extraterritorial force of Michigan’s compensation law, see, also, Hulswit v. Escanaba Manfg. Co., 218 Mich. 331; Klettke v. C. & J. Commercial Driveaway, 250 Mich. 454.
In view of the holding hereinbefore announced, we deem it unnecessary to give consideration to the contentions of the respective parties as to the constitutionality of section 19, part 3, of the act; or as to the right of either the employer or employee] each having elected to come under the act, to challenge the validity of this section on the ground that it violates the provision of the Federal Constitution entitling citizens of each State to all the privileges and immunities of citizens of the several States. But see Cooley v. Boice Bros., 245 Mich. 325; Thomas v. Morton Salt Co., 253 Mich. 613, 258 Mich. 231; Quong Ham Wah Co. v. Industrial Accident Commission, 184 Cal. 26 (192 Pac. 1021, 12 A. L. R. 1190). Also 1 Honnold on Workmen’s Compensation, § 19.
The award of the department is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
-11,
-3,
-89,
-42,
-18,
-17,
32,
-2,
-14,
40,
-3,
36,
46,
3,
-13,
-19,
-13,
21,
-11,
53,
-29,
-49,
-32,
20,
-45,
-39,
32,
1,
-24,
23,
-50,
36,
-17,
15,
-36,
-13,
19,
-38,
-21,
18,
2,
-28,
20,
8,
-5,
8,
10,
-8,
17,
-9,
4,
13,
-52,
3,
56,
7,
18,
-12,
-44,
37,
-42,
49,
30,
-1,
15,
-43,
47,
56,
-2,
-12,
-31,
18,
11,
-15,
-1,
-8,
-62,
24,
12,
-14,
12,
-19,
18,
-98,
9,
61,
-30,
22,
-32,
7,
-24,
-11,
-7,
-9,
1,
25,
1,
-15,
0,
-10,
0,
29,
16,
-8,
0,
-18,
-19,
17,
18,
33,
0,
21,
-12,
-22,
-34,
3,
5,
-20,
-13,
44,
17,
5,
25,
16,
12,
-13,
24,
-56,
10,
36,
50,
-1,
3,
12,
-37,
28,
-23,
-11,
22,
18,
11,
15,
27,
-62,
25,
33,
23,
-15,
-19,
-59,
19,
21,
43,
-5,
-24,
-4,
15,
-40,
82,
-6,
17,
11,
-22,
61,
19,
-29,
-10,
16,
29,
-16,
-8,
-17,
44,
-69,
65,
46,
33,
-8,
-43,
15,
-27,
29,
33,
-41,
-4,
-50,
-13,
-31,
45,
-25,
37,
-24,
-13,
-4,
-7,
47,
46,
1,
14,
3,
19,
-67,
14,
15,
18,
-1,
23,
-32,
14,
12,
5,
-29,
-10,
-57,
-15,
10,
18,
-45,
-5,
-47,
10,
27,
-8,
6,
-32,
-32,
-48,
-49,
10,
4,
-1,
-12,
70,
32,
-20,
-38,
-9,
-27,
45,
-20,
7,
-30,
-10,
5,
-9,
-22,
0,
-25,
-20,
-2,
15,
-26,
18,
-6,
-24,
-19,
27,
12,
-34,
-19,
-65,
78,
-34,
48,
6,
-14,
21,
25,
-37,
-3,
-32,
-3,
33,
20,
-55,
-66,
4,
48,
76,
-7,
-34,
25,
-11,
-18,
-58,
27,
-67,
-21,
-27,
24,
9,
-36,
-23,
18,
29,
44,
44,
-29,
-15,
46,
-4,
26,
46,
30,
21,
-19,
-50,
-12,
3,
5,
-4,
0,
-7,
-13,
42,
53,
12,
-16,
32,
-2,
-1,
15,
16,
-51,
-35,
-36,
-14,
-14,
-20,
-30,
-37,
-58,
-15,
35,
0,
-44,
26,
-6,
11,
-13,
29,
-5,
38,
-17,
0,
16,
30,
-18,
38,
-25,
37,
-8,
-6,
-11,
-2,
36,
31,
-13,
-46,
20,
23,
2,
-45,
-29,
-45,
-16,
-20,
-29,
33,
39,
25,
10,
12,
9,
-59,
9,
-29,
25,
-18,
30,
-21,
-7,
-13,
-33,
29,
30,
-12,
-11,
16,
0,
-34,
-51,
22,
29,
-9,
52,
-4,
-6,
-15,
8,
11,
-4,
20,
-8,
-5,
-35,
29,
-17,
-34,
34,
-24,
11,
26,
17,
16,
12,
51,
-18,
38,
4,
90,
5,
-5,
-77,
14,
-27,
-3,
39,
-38,
22,
21,
-15,
46,
-14,
-14,
-40,
-60,
-28,
-17,
5,
-51,
-8,
5,
-16,
-24,
25,
-71,
15,
3,
9,
22,
47,
-4,
54,
-81,
-1,
-13,
19,
56,
-23,
-24,
-47,
9,
-7,
41,
-62,
-41,
13,
20,
0,
-36,
9,
-33,
34,
-3,
-25,
13,
-8,
9,
-9,
-35,
1,
-21,
16,
-49,
-40,
-2,
17,
6,
23,
19,
-18,
-16,
34,
12,
37,
1,
35,
-16,
-23,
8,
6,
-3,
7,
41,
-29,
-20,
-88,
15,
-38,
-59,
25,
12,
49,
0,
-2,
-16,
-6,
10,
3,
-21,
-9,
-42,
-11,
7,
-13,
-46,
-13,
-8,
4,
25,
-26,
57,
-10,
46,
-29,
23,
28,
-24,
-27,
2,
34,
-13,
68,
0,
-2,
-23,
-7,
50,
-2,
-18,
-44,
-40,
-49,
34,
-22,
66,
0,
2,
7,
3,
-2,
10,
19,
13,
2,
11,
19,
48,
10,
-42,
37,
12,
-22,
-32,
8,
28,
-39,
-29,
-9,
27,
-3,
12,
-17,
-19,
-18,
-26,
-34,
33,
-4,
-6,
25,
-40,
0,
20,
7,
-25,
27,
15,
33,
22,
-12,
-82,
20,
25,
22,
-37,
2,
77,
-19,
-48,
28,
3,
-64,
-43,
-12,
-1,
-21,
45,
9,
37,
28,
33,
20,
-46,
25,
48,
-8,
-61,
8,
21,
42,
-22,
-60,
-15,
25,
15,
38,
-3,
-40,
18,
17,
28,
54,
7,
-43,
15,
24,
-19,
-26,
-20,
36,
-33,
-22,
-5,
-17,
-1,
25,
-20,
17,
-23,
-19,
-45,
-7,
12,
55,
13,
-23,
37,
25,
28,
22,
20,
7,
31,
7,
-49,
29,
28,
49,
-15,
-33,
7,
29,
12,
-33,
-26,
-40,
-4,
-8,
-6,
75,
-21,
-36,
-13,
-6,
7,
36,
4,
-33,
-38,
-17,
12,
4,
-16,
37,
-6,
-35,
21,
26,
-37,
-11,
-11,
4,
26,
91,
-12,
-47,
-15,
27,
-49,
-77,
-18,
-37,
54,
16,
-13,
-26,
-15,
11,
12,
-19,
42,
6,
10,
-55,
15,
11,
-57,
0,
37,
11,
34,
8,
5,
-40,
61,
-3,
42,
25,
-35,
25,
43,
36,
3,
-7,
1,
-16,
-65,
27,
2,
7,
19,
34,
11,
-30,
-43,
-2,
22,
-34,
-29,
12,
13,
-38,
59,
-31,
6,
-18,
-39,
-28,
49,
-4,
30,
4,
-68,
-28,
-18,
-89,
-14,
12,
-51,
-14,
-3,
-33,
-6,
-50,
39,
-7,
31,
24,
-20,
-7,
17,
4,
65,
-31,
40,
-15,
31,
-17,
63,
-7,
-6,
25,
0,
13,
-31,
35,
0,
-20,
19,
44,
-32,
-32,
18,
-40,
23,
-20,
-19,
21,
20,
17,
-35,
27,
21,
18,
-3,
31,
6,
-27,
62,
-6,
-20,
42,
8,
15,
-43,
21,
-18,
-37,
-52,
-36,
-49,
52,
14,
20,
-2,
-33,
-19,
35,
-6,
10,
-34,
38,
2,
-17,
-67,
-25,
-46,
18,
-3,
0,
24,
-12,
-28,
19,
-4,
18,
6,
9,
13,
30,
39,
-32,
-29,
25,
-15,
-3,
-53,
43,
27,
41,
-22,
4,
1,
-57,
14,
13,
-16,
-10,
12,
11,
3,
35,
3,
47,
3,
-42,
-15,
47,
-11,
-28,
-5,
17,
42,
8,
-63,
14,
47,
37,
0,
11,
-57,
-51,
-32,
-10,
1,
3,
-16,
-3,
-59,
-36,
-2,
9,
63,
0,
29,
-35,
-22,
-7,
-2,
37,
-15,
-30,
-39,
-11,
-20,
-4,
-39,
24,
20,
12,
51,
58,
9,
-45,
-3,
15,
-45,
3,
-10,
39,
49,
57,
30,
0,
-7,
-80,
21,
5,
2,
-15,
-16,
-35,
34,
-25,
32,
15,
16,
0,
-13,
-32,
-2,
53,
32,
-18,
-2,
-30,
-46,
-12,
6,
16,
37,
26,
-8,
-16,
7,
10,
49,
-21,
54,
3,
-31,
8,
17,
38,
17,
33,
33,
-11,
-8,
47,
12,
14,
-9,
59,
-61,
12,
-66,
7,
43,
-23,
-16,
12
] |
Fead, J.
Plaintiffs had decrees of foreclosure of mechanics’ liens for materials furnished the Jefferson Beach Amusement Company, vendee under land contract, which was adjudged bankrupt and its interest in the premises sold to defendant Beach Development Company, which later acquired vendors’ title.
Fred Bezold. — Claimant filed statement of lien for furnishing “labor and materials in and for the construction of certain roadways and parking grounds,” etc. He furnished cinders. At the hearing, he claimed part of them were used in the construction of buildings and he had decree for such part.
The statute, 3 Comp. Laws 1929, § 13101, permits liens for labor and materials used in “any house, building, machinery, wharf or structure, * * * foundation, cellar or basement” for such structure, or “sidewalks or wells.” This designation would not include general improvements, roadways or parking grounds.
“Where a claim includes both lienable and nonlienable items, and by reason of the method of stating them the nonlienable items cannot be segregated from the general aggregate, the entire lien must fail.” 18 R. C. L. p. 942.
See, also, 40 C. J. p. 247.
Claimant’s statement of lien goes even further than the rule in that it affirmatively shows that all the cinders he furnished were for nonlienable purposes, and he had no lien.
Decree is reversed, with costs.
Multiplex Builders Supply Company. — Claimant filed statement of lien for “labor and material in and for the erection and construction of a certain house and buildings, etc., and amusement park.” It furnished sewer pipe and cement which went into buildings, gravel used partly for buildings and partly for roads, and drain tile to drain the land. It conld not estimate the amount of gravel used in buildings. Construction of roads and draining the land were nonlienable purposes.
The statement of lien included both lienable and nonlienable items without means of separation and was void under the above authorities. See, also, J. E. Greilick Co. v. Taylor, 143 Mich. 704.
Decree is reversed, with costs.
Detroit White Lead & Color Works. — The proof of service of statement of lien recited that an officer “personally served a true copy of the attached lien upon the Jefferson Beach Amusement Company by handing a copy of said lien to Arthur Oehmig;” that he personally served Theodore Halsig and Agnes Halsig, William F. Baecker, and that he served Max R. Mueller, Marie A. Mueller, and William T. Burridge by posting on the premises.
The lien claimant has the burden of proof of compliance with the statutory requirements to establish a lien. R. C. Mahon Co. v. Ford Motor Co., 256 Mich. 255; Roberts v. Miller, 32 Mich. 289.
Oehmig, Halsig, Baecker, and Mueller were vendor owners of the premises. Neither in the pleadings or proofs was it alleged or shown that Oehmig was an officer or agent of the Jefferson Beach Amusement Company, upon whom service could be made. Plaintiff did not sustain the burden of proof of valid service necessary to establish a lien. Wiltsie v. Harvey, 114 Mich. 131; Zilz v. Wilcox, 190 Mich. 486.
Decree is reversed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
-52,
58,
25,
0,
-28,
34,
4,
28,
25,
21,
-13,
26,
12,
15,
-57,
-28,
-13,
5,
-34,
59,
-10,
13,
15,
12,
0,
2,
39,
19,
-19,
28,
23,
3,
-51,
3,
-4,
75,
-37,
-30,
67,
5,
14,
1,
-11,
-47,
8,
-27,
23,
-18,
20,
-23,
-51,
6,
44,
-37,
-39,
-62,
-14,
-12,
0,
-6,
14,
-33,
-48,
22,
-5,
0,
-32,
48,
30,
-29,
-30,
25,
-14,
-23,
28,
-7,
21,
1,
-42,
-71,
-6,
-3,
0,
42,
-71,
2,
-19,
-26,
33,
-26,
-92,
-38,
-2,
39,
-11,
23,
30,
41,
12,
-3,
-38,
18,
3,
42,
1,
29,
-40,
-14,
-23,
11,
2,
-36,
26,
-21,
-20,
-26,
30,
-24,
13,
-93,
28,
-41,
-3,
-40,
-32,
3,
14,
-21,
-85,
-16,
71,
-39,
-27,
25,
-14,
-4,
7,
45,
-56,
-8,
11,
27,
30,
6,
6,
48,
32,
12,
-42,
13,
-23,
-49,
18,
7,
32,
-15,
21,
-33,
54,
-27,
54,
-36,
9,
-32,
-28,
4,
-5,
23,
8,
1,
20,
-25,
-29,
-18,
23,
-2,
14,
-26,
-9,
-19,
-14,
-25,
50,
-9,
21,
-11,
10,
-17,
19,
-3,
68,
-19,
-9,
46,
-59,
-13,
-28,
35,
1,
-10,
-79,
-31,
-25,
-56,
-9,
-3,
-24,
48,
-24,
31,
9,
42,
-42,
-39,
11,
39,
26,
26,
-5,
15,
-21,
49,
-18,
-23,
-32,
-12,
9,
-34,
74,
20,
-49,
-43,
6,
-16,
-10,
-25,
14,
-12,
18,
49,
5,
20,
-84,
-41,
31,
-26,
-13,
-12,
-35,
-17,
-30,
-6,
-3,
-21,
-35,
-32,
-19,
24,
-9,
-5,
13,
60,
1,
-5,
30,
-10,
-23,
-6,
8,
83,
-4,
6,
-11,
-14,
14,
-2,
-29,
53,
-23,
-5,
-70,
-29,
-23,
29,
-18,
17,
10,
-2,
-27,
8,
3,
0,
33,
20,
0,
-13,
9,
-4,
8,
3,
-33,
-33,
-3,
-7,
6,
19,
-1,
6,
-20,
36,
24,
-13,
29,
-3,
5,
19,
28,
-33,
27,
4,
54,
4,
-5,
50,
-14,
-53,
35,
-34,
-42,
17,
9,
-19,
22,
26,
-29,
40,
30,
-54,
-48,
-6,
-25,
50,
28,
-29,
3,
12,
-1,
-37,
17,
-17,
-42,
3,
-28,
-15,
-20,
28,
7,
-12,
-41,
90,
55,
42,
42,
-51,
-21,
43,
-24,
0,
44,
32,
15,
-19,
-13,
44,
43,
-55,
-10,
-1,
-34,
-5,
-4,
28,
40,
-24,
47,
60,
27,
-47,
-25,
-1,
-43,
-48,
2,
41,
31,
-41,
36,
8,
-24,
2,
-64,
33,
-8,
-13,
-31,
25,
34,
8,
5,
-14,
21,
-32,
-35,
-32,
-33,
7,
55,
-22,
17,
16,
38,
-32,
32,
-8,
0,
-63,
-22,
-3,
-8,
19,
-40,
7,
-35,
-39,
5,
5,
-55,
-39,
-23,
22,
-4,
48,
-42,
-12,
68,
9,
-17,
24,
36,
-1,
-3,
22,
-13,
-20,
42,
-10,
-15,
-21,
53,
-35,
-13,
-26,
61,
7,
48,
5,
-3,
-18,
-29,
27,
0,
42,
73,
0,
-38,
-3,
11,
-29,
-28,
33,
6,
33,
14,
-34,
34,
-20,
-3,
-14,
3,
-3,
0,
-29,
6,
-49,
-12,
-24,
-69,
21,
4,
31,
-17,
-27,
0,
21,
21,
10,
-21,
20,
-11,
39,
-3,
4,
10,
35,
46,
68,
31,
-50,
-17,
22,
-26,
43,
-44,
4,
-2,
40,
-26,
59,
8,
2,
19,
3,
-47,
6,
0,
6,
36,
0,
-41,
0,
0,
28,
19,
3,
5,
5,
7,
-9,
-20,
4,
-60,
23,
11,
52,
-22,
31,
-3,
8,
-27,
11,
-21,
16,
-27,
-24,
44,
-25,
11,
0,
-16,
-22,
-87,
-44,
16,
-10,
-54,
-21,
-64,
-21,
35,
-35,
20,
-3,
16,
-21,
-7,
11,
-18,
4,
36,
8,
0,
-31,
-12,
-30,
-39,
23,
-33,
61,
-10,
-32,
-31,
11,
-14,
-22,
-79,
-25,
21,
23,
-10,
-12,
16,
-19,
-7,
-9,
39,
39,
41,
-13,
46,
67,
30,
13,
-56,
36,
39,
41,
0,
9,
-59,
20,
-33,
26,
-29,
46,
4,
-24,
22,
-17,
15,
-24,
14,
21,
-34,
2,
-41,
24,
10,
-16,
55,
17,
-13,
64,
54,
1,
10,
11,
-20,
-21,
-2,
-27,
15,
-29,
34,
48,
0,
13,
42,
0,
-20,
0,
46,
23,
14,
5,
19,
4,
-35,
-8,
15,
51,
14,
-16,
-14,
20,
20,
10,
63,
8,
-7,
-20,
-65,
24,
34,
-18,
30,
72,
6,
0,
2,
34,
12,
-1,
29,
56,
-32,
10,
7,
-42,
6,
51,
-9,
-46,
15,
13,
-4,
59,
41,
-9,
-35,
-47,
-6,
-52,
-13,
-7,
4,
-31,
21,
5,
-24,
14,
-11,
83,
-62,
-18,
18,
16,
-6,
-16,
-3,
-5,
21,
7,
-13,
-42,
-18,
-40,
3,
38,
-10,
33,
-12,
-35,
23,
-7,
0,
-40,
-21,
-43,
-21,
0,
-58,
-19,
17,
8,
-19,
16,
-65,
26,
4,
-45,
-33,
21,
-14,
-48,
66,
12,
-3,
18,
28,
7,
-45,
-10,
41,
39,
7,
-43,
15,
-4,
35,
21,
0,
36,
37,
10,
-18,
-11,
21,
52,
-31,
0,
-21,
17,
-39,
33,
23,
-14,
-55,
22,
17,
-7,
-1,
-69,
-1,
-18,
-6,
-32,
-29,
19,
32,
3,
-14,
46,
-19,
-55,
18,
66,
0,
-19,
-21,
-27,
97,
-57,
19,
42,
72,
-31,
12,
56,
41,
-73,
-14,
-26,
35,
35,
-7,
-54,
-38,
-8,
-26,
68,
-7,
-26,
17,
7,
-29,
37,
14,
20,
-9,
-16,
63,
-6,
0,
36,
34,
-53,
-23,
18,
17,
-35,
80,
57,
-21,
-30,
27,
1,
10,
-12,
-23,
-18,
-44,
33,
36,
48,
-20,
-25,
19,
-12,
-16,
79,
36,
-66,
-33,
19,
-7,
-57,
52,
-48,
-24,
-45,
0,
-27,
-32,
34,
3,
36,
33,
32,
-19,
23,
-7,
13,
-28,
-20,
6,
-8,
5,
19,
-30,
41,
22,
11,
-38,
-21,
-41,
-20,
-24,
24,
2,
40,
-49,
-27,
24,
35,
14,
-13,
-7,
-26,
0,
-21,
-1,
-24,
24,
8,
-28,
-26,
21,
13,
23,
54,
-46,
54,
7,
19,
-14,
-37,
-18,
-13,
-3,
-11,
-23,
4,
2,
2,
-16,
21,
41,
-6,
-36,
-60,
2,
-9,
6,
-5,
-11,
-27,
46,
-34,
-22,
-18,
60,
-47,
9,
1,
-4,
-67,
45,
-30,
-2,
-54,
26,
-33,
38,
5,
-17,
-73,
-39,
36,
-7,
25,
-16,
-7,
-3,
-1,
-9,
24,
41,
9,
21,
-19,
-66,
-19,
1,
52,
8,
29,
-36,
46,
6,
-41,
54,
-11,
10,
32
] |
Fead, J,
This is a summary proceeding to recover possession of real estate on statutory foreclosure of an instalment of a mortgage.
Sale was made March 18, 1930, for about $1,800, to the Bankers Trust Company, the mortgagee, which conveyed to plaintiff March 9, 1931. March 23, 1931, an agent of the Bankers Trust Company exhibited the sheriff’s deed to the caretaker of the building and demanded possession, which was refused. Defendant contends that, by analogy to application for writ of assistance in chancery foreclosure, the deed should have been exhibited to her and possession demanded before summary proceedings would lie.
A summary proceeding is a legal, not an equitable action. The statute, 3 Comp. Laws 1929, § 14975, subd. 3, permits the remedy:
“When any person shall continue in possession of any premises sold by virtue of any mortgage or execution, after the expiration of the time limited by law for the redemption of such premises.”
When the period of redemption expires, continued possession by the mortgagor is unlawful, and no notice to quit is necessary. Lieblien v. Hansen, 178 Mich. 11; Allen v. Carpenter, 15 Mich. 25; Gage v. Sanborn, 106 Mich. 269. The proceedings are statutory, and, as the statute does not make exhibition of deeds and demand for possession a requisite to the action, defendant’s contention is untenable.
About a month after the mortgage sale, an arrangement was made between defendant and the Bankers Trust Company that a contract purchaser from defendant should make payments to the trust company toward redemption. He paid $600. The foreclosure was not waived by such subsequent partial payment, because, while it may be waived by agreement (Dodge v. Brewer, 31 Mich. 227), no intention to waive appears from the arrangement made (Cameron v. Adams, 31 Mich. 426; Audretsch v. Hurst, 126 Mich. 301).
Defendant, however, contends that the foreclosure was void because the payment of $600 was not deposited in the office of register of deeds before expiration of the period of redemption. The argument is that she thereby was prevented from redeeming at such office.. There is no statute requiring such deposit, there was no agreement to deposit, defendant could have redeemed by direct payment to the purchaser, she did not attempt to redeem at all, and this is not a bill for redemption. We discover no reason for voiding the foreclosure on this ground.
Judgment for defendant reversed, and the cause will be remanded for entry of judgment for plaintiff, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
-9,
26,
-35,
8,
-35,
6,
6,
57,
-7,
33,
9,
1,
4,
38,
-8,
8,
-9,
-26,
0,
8,
-24,
-65,
14,
14,
14,
35,
8,
-11,
60,
25,
4,
17,
-41,
46,
28,
-41,
-6,
-13,
74,
-2,
22,
-2,
9,
13,
-50,
-29,
-7,
-41,
2,
-34,
27,
-28,
24,
9,
11,
11,
-15,
-13,
-16,
4,
-4,
-45,
4,
2,
-46,
19,
4,
31,
-4,
-44,
-11,
-40,
-1,
-23,
14,
1,
-8,
0,
-19,
-31,
30,
-78,
21,
-20,
22,
-12,
14,
-28,
-26,
-13,
-33,
47,
-19,
8,
-36,
19,
17,
14,
60,
24,
-3,
1,
25,
48,
-40,
17,
-20,
-70,
-10,
9,
-6,
-23,
34,
-16,
-38,
-45,
-23,
-11,
-27,
-12,
3,
-50,
-11,
-74,
17,
29,
27,
-46,
26,
8,
-33,
11,
-26,
52,
-26,
-16,
4,
-17,
33,
15,
-4,
-51,
9,
-53,
12,
-26,
62,
-18,
-4,
22,
-56,
63,
11,
46,
0,
6,
13,
5,
-31,
-27,
8,
-27,
-18,
-22,
-31,
-7,
-6,
42,
-19,
0,
23,
0,
-21,
-77,
-30,
-13,
3,
20,
20,
-28,
17,
16,
13,
1,
23,
-34,
-38,
-3,
29,
8,
-8,
10,
-19,
41,
-35,
51,
-30,
38,
-20,
0,
-15,
-56,
25,
0,
4,
-44,
30,
-5,
38,
15,
-64,
29,
4,
-9,
-51,
-37,
68,
20,
26,
-13,
-25,
0,
-1,
22,
-41,
-39,
42,
-22,
31,
31,
20,
23,
-6,
-6,
-9,
4,
-1,
13,
32,
10,
24,
0,
-12,
-19,
-44,
-10,
-31,
-16,
1,
-4,
-48,
-20,
-46,
50,
-2,
-2,
0,
-24,
-5,
4,
-17,
42,
-33,
32,
-9,
-21,
-3,
16,
-45,
-2,
-14,
4,
-1,
46,
9,
-30,
-78,
22,
-14,
0,
-15,
-9,
29,
21,
-38,
25,
8,
55,
-1,
40,
29,
-19,
-51,
-9,
11,
23,
-59,
-25,
68,
16,
-18,
-25,
3,
18,
-7,
3,
27,
0,
-1,
-21,
24,
0,
15,
21,
27,
35,
7,
0,
16,
-19,
71,
-4,
3,
-6,
64,
-19,
35,
-44,
-47,
25,
-3,
-13,
-27,
13,
1,
50,
27,
-39,
-2,
20,
25,
13,
-2,
-19,
58,
0,
10,
-38,
-21,
30,
-83,
-12,
-38,
60,
-13,
-35,
2,
25,
-5,
34,
40,
-16,
-7,
-28,
6,
6,
0,
-44,
0,
18,
21,
8,
-21,
3,
-49,
-4,
-29,
-23,
-51,
20,
-6,
-36,
23,
70,
40,
24,
-18,
9,
-15,
-2,
-54,
-1,
33,
17,
0,
-23,
15,
-12,
-46,
-73,
-14,
20,
-40,
13,
-53,
-10,
38,
-35,
-26,
53,
31,
8,
-42,
0,
-26,
20,
44,
5,
35,
-12,
14,
-15,
11,
-13,
0,
-17,
-23,
4,
-28,
-13,
-13,
73,
14,
-51,
35,
38,
-49,
-24,
-34,
60,
46,
-37,
-18,
44,
21,
26,
-19,
-23,
37,
17,
-44,
25,
31,
-10,
-18,
19,
49,
28,
11,
-46,
68,
-62,
29,
32,
-5,
-26,
1,
-32,
0,
23,
29,
15,
-15,
19,
-22,
21,
-28,
30,
-5,
10,
-21,
33,
43,
8,
-38,
-33,
-55,
-65,
2,
-38,
40,
-44,
52,
47,
-32,
-53,
-26,
-27,
12,
17,
21,
-16,
28,
22,
22,
0,
-7,
-13,
10,
30,
-31,
-12,
8,
9,
31,
12,
27,
-20,
21,
44,
-21,
11,
-47,
-28,
-20,
-3,
25,
53,
-3,
-1,
6,
3,
11,
-34,
-3,
38,
2,
17,
46,
-4,
-52,
36,
-27,
42,
32,
52,
12,
-25,
-13,
13,
-21,
-16,
-9,
49,
-3,
18,
11,
-45,
5,
-10,
-26,
31,
47,
-26,
31,
-42,
11,
-42,
-29,
-6,
-52,
1,
8,
1,
-15,
-22,
21,
-6,
-8,
-37,
-1,
1,
1,
-74,
26,
45,
29,
13,
-2,
33,
29,
-8,
-8,
-23,
-31,
-13,
-29,
12,
-7,
25,
-10,
21,
-63,
-18,
2,
-59,
22,
-20,
29,
-19,
-2,
12,
-26,
48,
-38,
11,
20,
2,
-4,
26,
9,
27,
3,
-37,
-23,
-8,
27,
-11,
-47,
-4,
40,
16,
41,
-12,
-26,
4,
-9,
-21,
16,
-45,
-24,
18,
-47,
16,
-1,
-6,
-31,
-22,
69,
-27,
-41,
32,
-15,
-25,
85,
10,
-2,
-47,
41,
-47,
23,
-16,
-50,
-45,
43,
4,
28,
18,
1,
-5,
45,
-7,
18,
4,
-22,
36,
-19,
-1,
47,
16,
-15,
-21,
14,
37,
-11,
-47,
35,
-18,
20,
38,
-3,
-7,
-28,
-1,
-21,
1,
1,
55,
0,
-8,
51,
-34,
26,
0,
-29,
3,
-41,
24,
-31,
0,
-15,
57,
4,
-6,
30,
43,
-25,
-6,
-25,
23,
-6,
-32,
48,
-38,
9,
-36,
49,
-45,
-24,
-49,
15,
8,
-21,
30,
-14,
16,
5,
27,
20,
-4,
8,
36,
15,
-7,
-4,
-33,
-17,
28,
15,
-32,
46,
-9,
-9,
28,
-20,
-7,
-6,
-36,
-26,
25,
-23,
28,
-22,
10,
29,
42,
-12,
-38,
0,
-39,
-39,
-11,
-30,
-14,
7,
-14,
-13,
-15,
57,
-23,
24,
-23,
-5,
-17,
15,
-35,
35,
3,
90,
39,
-13,
-12,
-41,
-27,
-17,
27,
45,
-37,
4,
-7,
-8,
-5,
7,
25,
2,
15,
-36,
-7,
-3,
-27,
0,
-58,
-44,
-35,
38,
26,
12,
41,
-42,
-34,
2,
23,
-12,
-34,
-31,
15,
41,
-20,
-25,
47,
10,
-23,
19,
12,
0,
-17,
22,
38,
39,
-14,
-40,
-44,
-7,
-8,
4,
-14,
5,
-43,
-11,
-32,
1,
-6,
0,
-2,
-30,
38,
-39,
0,
35,
-22,
28,
28,
-13,
-11,
35,
-19,
-57,
16,
50,
35,
28,
32,
-35,
29,
22,
-1,
40,
-8,
16,
-20,
13,
19,
-11,
26,
-11,
21,
30,
-3,
-59,
45,
1,
-6,
-64,
46,
1,
-9,
21,
-64,
-3,
-35,
11,
-47,
-7,
3,
17,
28,
0,
50,
8,
24,
-4,
-9,
2,
-38,
3,
13,
-17,
-44,
15,
40,
4,
12,
-38,
-78,
16,
-44,
29,
36,
-25,
15,
-53,
66,
-36,
23,
30,
-40,
14,
-40,
-13,
-11,
-15,
-28,
-4,
17,
-7,
43,
35,
16,
5,
5,
-35,
-10,
82,
0,
-20,
28,
14,
-48,
-41,
-18,
45,
-4,
0,
-52,
79,
31,
50,
10,
-33,
7,
47,
-28,
-12,
0,
-37,
4,
18,
-34,
-43,
10,
12,
-49,
-5,
-10,
-29,
10,
48,
4,
-13,
-35,
-6,
-21,
4,
23,
-25,
27,
28,
6,
30,
6,
-3,
4,
47,
-56,
28,
-15,
31,
55,
-13,
-33,
-46,
-13,
45,
16,
-22,
-2,
-19,
35,
-34,
16,
40,
-2,
-11,
100
] |
On Rehearing.
Clark, C. J.
It is necessary to state certain facts again. We quote from the by-laws:
“Article 1. — Corporate Powers.
“Section 1. — Insurable Property. This company may insure against direct loss or damage by tornado, cyclone or windstorm the following described classes of property owned by members and situate within the State of Michigan, namely, dwelling houses, stores, and all other kinds of buildings, household furniture, goods, wares and merchandise, and any other property subject to the terms and conditions of the articles of association and by-laws of the company as they now exist and as they may hereafter be amended.”
This provision relates solely to corporate powers as to insuring property. There is nothing in it to permit, or in any way appertaining to, destruction or impairment of outstanding contracts in the hands of policyholders.
Plaintiffs’ policy recites that it is “according to the charter and by-laws,” and the charter recites: “The board of directors shall have power to make, alter, amend and repeal by-laws.”
It should be noted that in this policy contract there is nothing which can be found or construed as consent on the part of plaintiffs to be bound by amendments made subsequent to their contract.
No reason appears for departing from former opinion in this cause, reported in 256 Mich. 76. Prom abundance of authority there set forth, the following from Covenant Mutual Life Ass’n v. Kentner, 188 Ill. 431 (58 N. E. 966), is typical:
“Even if a benefit certificate states that the bylaws are a part of the contract and that they are subject to amendment, subsequent by-laws will be construed to apply only to contracts made after tbeir adoption, unless there is an express agreement that a member shall be bound by future by-laws. ’ ’
The charter and by-laws as then existing were read into the contract with plaintiffs, and of course the contract was subject to them.
Recital in the by-laws that they were subject to amendment is of no importance. They were subject to amendment anyway, and declaring an existing power does not change the power. There was power in the corporation to amend. Defendant’s argument comes to this, that because there was power (here declared) in the corporation to amend by-laws, contracts, of which the by-laws are a part, were likewise subject to amendment. That is not the law. The charter and by-laws which went into the contract were as then existing. The corporation may amend, but, if plaintiffs are to be held to subsequent amendment, an express agreement that they shall be so bound must appear. No such agreement is found.
Affirmed.
McDonald, Sharpe, Fead, and Wiest, JJ., concurred with Clark, C. J. | [
12,
-35,
10,
-11,
14,
16,
22,
-56,
11,
10,
53,
42,
66,
-23,
17,
-2,
-17,
10,
-37,
56,
-39,
-58,
-41,
-28,
-49,
-36,
29,
-67,
14,
48,
-31,
-26,
-43,
-39,
-67,
4,
-26,
1,
-36,
-22,
2,
9,
45,
-43,
-15,
9,
33,
-14,
26,
-16,
35,
24,
-6,
4,
-13,
61,
5,
4,
-27,
21,
-35,
-2,
3,
0,
17,
2,
43,
20,
42,
0,
20,
21,
6,
38,
22,
-1,
20,
4,
-52,
-18,
24,
-10,
5,
-37,
-34,
20,
3,
2,
17,
38,
0,
-18,
-40,
-34,
-5,
-4,
24,
-9,
34,
58,
5,
-41,
-8,
28,
-43,
33,
38,
-6,
7,
-12,
-11,
-11,
-19,
-1,
4,
-21,
17,
27,
38,
8,
37,
12,
-49,
-33,
16,
38,
-1,
-24,
-25,
18,
-6,
-26,
27,
34,
23,
-5,
-2,
-12,
-16,
-45,
-16,
54,
20,
0,
-20,
43,
11,
-19,
-60,
-40,
18,
7,
37,
-5,
-32,
-28,
-31,
-6,
56,
-55,
62,
-11,
-57,
19,
-50,
42,
-2,
-61,
-20,
30,
11,
-39,
0,
-18,
-6,
-6,
23,
-30,
-25,
-17,
-22,
25,
18,
10,
38,
-52,
-19,
-12,
15,
-13,
24,
-43,
-35,
4,
-16,
-11,
-58,
67,
15,
-24,
0,
-13,
-57,
23,
-5,
-10,
36,
-4,
3,
44,
-16,
15,
-38,
-38,
21,
10,
5,
-19,
5,
-24,
21,
6,
21,
28,
-47,
-34,
21,
-16,
-47,
-27,
-12,
3,
7,
13,
0,
48,
3,
0,
85,
20,
-11,
-4,
-12,
29,
12,
-17,
-14,
10,
57,
1,
6,
-14,
23,
53,
-17,
-16,
-40,
31,
-44,
-39,
5,
54,
-88,
-30,
4,
-12,
10,
10,
-15,
20,
21,
41,
27,
-23,
-37,
-21,
0,
-22,
-6,
-34,
-44,
20,
-3,
18,
-25,
22,
-2,
54,
-50,
-48,
51,
8,
25,
3,
15,
4,
12,
-1,
-6,
-36,
-12,
22,
-33,
40,
-27,
16,
-58,
5,
26,
-22,
-28,
27,
-13,
-15,
16,
-30,
-9,
28,
30,
-22,
23,
30,
4,
-14,
-7,
11,
60,
-56,
-3,
16,
-37,
-58,
52,
10,
74,
-2,
15,
-41,
-33,
47,
3,
-1,
64,
-37,
-23,
51,
-23,
-32,
-59,
2,
-51,
27,
-55,
-1,
17,
-4,
26,
0,
-46,
10,
40,
18,
-29,
21,
-7,
54,
-15,
12,
20,
24,
65,
20,
-43,
2,
1,
29,
-16,
0,
-49,
27,
-35,
-36,
22,
-35,
25,
0,
-46,
-20,
-18,
9,
-32,
-43,
-14,
35,
-16,
3,
-29,
17,
-51,
8,
-1,
37,
-28,
27,
1,
32,
-4,
-41,
-3,
6,
-47,
43,
1,
-63,
-24,
30,
4,
-11,
22,
6,
-34,
-46,
-43,
2,
-34,
-72,
-2,
18,
-45,
18,
-38,
-4,
-15,
17,
-16,
-46,
-40,
-11,
-19,
11,
-45,
-3,
-59,
-7,
-8,
-1,
-39,
-41,
34,
-62,
17,
18,
-53,
14,
9,
53,
-3,
44,
25,
-3,
21,
-57,
37,
-7,
48,
-18,
-13,
-14,
20,
16,
-12,
-27,
-38,
84,
-50,
-47,
-39,
1,
-53,
-3,
3,
41,
14,
24,
-23,
-28,
-14,
41,
46,
-1,
26,
40,
29,
-14,
-29,
-23,
-23,
-6,
-39,
-10,
63,
1,
11,
-59,
18,
20,
-12,
-34,
9,
22,
14,
8,
11,
45,
54,
62,
9,
-25,
37,
-28,
19,
-29,
-28,
-28,
-31,
-11,
-18,
41,
21,
-22,
-1,
27,
25,
13,
-6,
14,
-11,
15,
-33,
-10,
-6,
23,
-42,
21,
28,
-5,
44,
-44,
37,
-5,
-43,
-35,
37,
-7,
37,
-16,
21,
13,
22,
60,
-5,
21,
38,
-24,
8,
25,
-7,
-1,
12,
-28,
-44,
-54,
-8,
18,
-5,
-5,
37,
-36,
-10,
-4,
21,
11,
-16,
-4,
9,
0,
-18,
-26,
4,
10,
1,
34,
-34,
-40,
-27,
37,
44,
-16,
-3,
34,
-54,
6,
-11,
-11,
-26,
-15,
48,
-14,
17,
50,
-14,
-54,
-22,
-29,
-9,
23,
18,
5,
50,
0,
-10,
-32,
41,
-11,
-21,
-35,
57,
3,
7,
49,
-5,
21,
-11,
-17,
-12,
6,
31,
-16,
-21,
-17,
-43,
-19,
50,
40,
0,
19,
-21,
54,
12,
-29,
-51,
22,
11,
-3,
33,
19,
29,
18,
46,
-35,
-1,
-13,
-30,
29,
0,
-37,
47,
-11,
34,
-16,
46,
34,
31,
72,
48,
8,
-7,
-5,
22,
96,
-47,
26,
-6,
4,
42,
-4,
-13,
-73,
-7,
22,
33,
-5,
-15,
-42,
-11,
-6,
28,
25,
11,
-24,
-6,
6,
38,
15,
-36,
22,
-72,
10,
71,
-5,
24,
-44,
-21,
-30,
-9,
63,
-8,
10,
-13,
19,
-18,
-56,
46,
-19,
-16,
56,
24,
29,
5,
-13,
-27,
-37,
-51,
-2,
13,
-1,
42,
-10,
31,
0,
43,
19,
29,
-12,
-42,
8,
-24,
-1,
26,
0,
-27,
-12,
4,
3,
-36,
-3,
-51,
25,
-6,
-14,
34,
-10,
-25,
36,
21,
-24,
6,
5,
6,
-56,
-10,
38,
0,
14,
27,
-37,
55,
-8,
-4,
-3,
13,
21,
-9,
-4,
-34,
-66,
40,
-22,
-51,
16,
19,
46,
-2,
-5,
-35,
2,
33,
-22,
23,
-7,
4,
24,
-50,
23,
9,
-7,
-62,
51,
34,
-54,
7,
-25,
-21,
7,
6,
-4,
9,
11,
-9,
-1,
-23,
-10,
21,
-20,
-17,
7,
-21,
-1,
-6,
39,
2,
8,
-63,
10,
-1,
-15,
3,
7,
15,
-35,
23,
-3,
7,
61,
-40,
1,
0,
-12,
-13,
16,
-9,
31,
20,
56,
14,
-18,
-25,
18,
4,
-14,
16,
54,
-18,
-7,
39,
-10,
-40,
12,
-9,
26,
-27,
28,
14,
-9,
-23,
-17,
-8,
-43,
-21,
42,
14,
55,
23,
-14,
-3,
-1,
43,
20,
-39,
31,
18,
-5,
17,
42,
16,
4,
6,
-1,
-20,
-8,
-40,
-6,
-20,
64,
-3,
29,
21,
-19,
-1,
-14,
8,
-38,
8,
-2,
-15,
33,
-17,
-11,
-29,
24,
21,
11,
-23,
-81,
-35,
17,
8,
4,
15,
39,
-32,
0,
-48,
76,
61,
-71,
-7,
-22,
-36,
-40,
-17,
-34,
15,
-21,
-40,
-13,
16,
-32,
-26,
-20,
-42,
10,
61,
43,
-42,
-1,
-28,
7,
-28,
4,
-22,
35,
-17,
-10,
-12,
-29,
-38,
-54,
-19,
-11,
42,
-3,
15,
-8,
-44,
2,
34,
4,
11,
21,
7,
8,
47,
69,
9,
11,
4,
-38,
26,
-73,
-36,
39,
11,
-1,
-17,
-34,
0,
24,
14,
25,
27,
11,
-57,
19,
-11,
29,
-3,
19,
13,
-23,
-13,
-2,
43,
20,
0,
31,
-31,
31,
-18,
-3,
52,
-42,
-28,
-1
] |
Potter, J.
Defendant was arrested, informed against, and convicted of a violation of 3 Comp. Laws 1915, § 15320 (3 Comp. Laws 1929, § 1691(6). This, like all other criminal statutes, is to be strictly construed in favor of defendant. Its object is to punish cheats. In all cases of this kind at least three things must concur. The intent to defraud, the false pretenses made, and the fraud accomplished. People v. Wakely, 62 Mich. 297. In this case defendant owed the bank $7,000, for which he had given his note. He owed other bills to creditors. The bank wanted security for its loan. Defendant was unwilling to give the bank preferential treatment as a creditor; to secure its loan when other creditors would have no security. He wanted to pay or secure all creditors without preference or priority. Finally, defendant and the bank agreed that the bank would advance to defendant sufficient to pay his other outstanding indebtedness. The notes of defendant were to be signed, not only by himself, but by his wife, and were to be indorsed by third parties. Defendant and his wife were to give a real estate mortgage upon defendant’s interest in real estate to secure the payment of $8,200. Defendant represented there was nothing in the title to the real estate which in any way prevented his mortgaging his interest in the same. He told the officers of the bank with whom he negotiated the loan that his father had possession of the real estate mortgaged. After the mortgage was given, defendant made default in the payments thereon, the bank foreclosed the mortgage, and, upon the sale in pursuance of such foreclosure, purchased defendant’s interest in the real estate for $7,500, and took a decree for deficiency against the makers and indorsers of the notes secured by the mortgage. It was unable to realize upon the executions issued on the deficiency decree, and the bank instituted this criminal prosecution. Defendant contends there is no evidence the bank or its officers, in making the additional loan, were in anywise deceived; that he had a right to mortgage his interest in the land; and the bank, having knowledge of his father’s occupancy of the land, were bound by that knowledge to ascertain, at their peril, the extent of the father’s rights; that the representations made by defendant were in the nature of a written warranty and cannot be made the basis of false pretenses; that the court has always recognized a difference between a breach of warranty and false representations and pretenses, even in civil cases, and that the criminal law recognizes and follows the rule laid down in civil cases and therefore the prosecution will not lie.
No inquiry was made by the bank of the father as to his rights in the premises. Inquiry was made of defendant as to his father’s rights. Defendant was asked if the land was incumbered, and says he answered “No.” The father had a writing, not recorded, which, coupled with his possession, amounted to a life lease of the premises mortgaged. This constituted an incumbrance. There was sufficient evidence to carry the case to the jury. Its weight and sufficiency was for their consideration: The charge of the trial court fully covered the issues involved, and fairly submitted them to the jury. We find no reversible error. Conviction affirmed.
Clark, C. J., and Sharpe, North, Fead, and Butzel, JJ., concurred with Potter, J. | [
34,
11,
17,
17,
-29,
-21,
12,
-21,
1,
29,
29,
12,
7,
-43,
-14,
-32,
12,
8,
-8,
1,
10,
-20,
-22,
9,
10,
9,
21,
35,
14,
32,
25,
-13,
-19,
4,
-47,
-31,
26,
-31,
58,
-11,
28,
21,
-36,
16,
-52,
-28,
7,
-43,
37,
-26,
9,
-31,
63,
-22,
-20,
-26,
-11,
24,
15,
-12,
5,
-31,
15,
-27,
-28,
-43,
-5,
49,
-3,
24,
-11,
-10,
-26,
-5,
1,
28,
3,
21,
-57,
-47,
-25,
1,
44,
-41,
-13,
-29,
9,
-3,
-26,
-2,
-22,
17,
17,
8,
1,
-29,
14,
38,
11,
10,
-30,
-27,
-1,
43,
15,
41,
-40,
-55,
-35,
60,
-34,
-5,
39,
0,
-39,
-57,
-70,
9,
8,
-22,
-1,
-2,
29,
-27,
-11,
29,
-60,
-45,
-12,
-13,
12,
23,
-40,
7,
-59,
-33,
-13,
12,
11,
5,
-22,
-56,
-19,
-5,
-11,
22,
-7,
7,
20,
6,
-41,
-13,
15,
61,
6,
8,
-10,
-35,
-47,
-17,
12,
-24,
3,
19,
-29,
12,
-52,
22,
-27,
8,
17,
27,
-27,
6,
21,
-27,
0,
-48,
-2,
0,
25,
38,
-24,
22,
-4,
-4,
-28,
-1,
0,
11,
18,
2,
-36,
48,
16,
12,
-27,
-18,
45,
-57,
-19,
-27,
38,
-39,
22,
-28,
1,
16,
-11,
9,
-22,
-8,
5,
-14,
-52,
36,
-5,
-11,
34,
-16,
-34,
16,
-45,
23,
-30,
-62,
21,
6,
38,
13,
3,
-13,
-6,
11,
-28,
9,
24,
15,
31,
82,
-16,
1,
-59,
-16,
-10,
22,
-14,
34,
-57,
-14,
-50,
-12,
-2,
76,
-37,
26,
-2,
-25,
12,
34,
4,
43,
-18,
1,
8,
-32,
2,
15,
-11,
30,
-35,
-24,
-3,
43,
14,
-14,
-68,
30,
-55,
-46,
20,
5,
20,
60,
31,
-22,
-11,
63,
-4,
0,
27,
-26,
-15,
9,
61,
30,
-17,
-49,
-1,
0,
-14,
-51,
19,
-34,
-4,
3,
24,
-6,
-85,
-37,
58,
20,
0,
26,
36,
-8,
-4,
2,
14,
4,
26,
-24,
2,
22,
14,
-10,
41,
-58,
-18,
9,
-13,
6,
-4,
-11,
0,
36,
31,
-11,
-8,
0,
-49,
13,
33,
-17,
35,
14,
-1,
21,
-67,
10,
-14,
-9,
-25,
18,
-40,
14,
-19,
34,
-9,
44,
37,
5,
3,
-28,
2,
34,
3,
-3,
44,
39,
50,
15,
-36,
-1,
-5,
11,
-38,
-19,
-28,
33,
9,
0,
53,
32,
26,
16,
-21,
0,
-41,
42,
-64,
20,
-13,
-50,
-11,
-34,
51,
11,
-9,
-56,
-10,
19,
-23,
-21,
-60,
-18,
4,
-33,
0,
7,
18,
-4,
6,
63,
-23,
9,
54,
-37,
48,
-23,
-45,
-35,
32,
-28,
48,
0,
-18,
32,
-14,
-9,
-21,
7,
14,
-60,
49,
-5,
-46,
-32,
7,
25,
-11,
13,
38,
40,
28,
19,
-10,
-71,
42,
-6,
-13,
-21,
-10,
9,
3,
-30,
18,
5,
-10,
-38,
9,
15,
20,
-33,
31,
-22,
-5,
-19,
-14,
-10,
4,
-23,
-10,
0,
-9,
23,
0,
24,
-38,
-1,
7,
60,
16,
-13,
-13,
-52,
-51,
-57,
-25,
8,
-1,
-17,
-12,
13,
1,
27,
1,
-20,
-22,
51,
11,
4,
-5,
17,
13,
18,
23,
-14,
54,
100,
-44,
-22,
-1,
66,
8,
-47,
16,
-13,
-25,
34,
42,
-5,
-46,
-10,
-21,
16,
5,
49,
-14,
0,
36,
2,
3,
-38,
-7,
22,
0,
11,
-14,
-35,
-52,
27,
2,
67,
-9,
11,
7,
-37,
21,
3,
-30,
2,
26,
12,
-29,
37,
-15,
3,
3,
-3,
-37,
-16,
37,
-13,
-1,
-14,
41,
2,
-18,
-6,
-31,
6,
-23,
24,
14,
39,
-18,
8,
-19,
-6,
16,
-1,
-10,
-60,
7,
57,
14,
16,
34,
-36,
23,
-28,
42,
-21,
5,
-50,
-32,
-45,
1,
51,
-24,
7,
-38,
-22,
15,
-35,
14,
30,
-45,
-20,
48,
-6,
4,
21,
36,
2,
-25,
-26,
-51,
48,
-1,
-1,
0,
-11,
31,
6,
-10,
43,
-34,
22,
-10,
-12,
-23,
15,
0,
1,
-15,
16,
-30,
-11,
10,
44,
-23,
2,
25,
72,
1,
5,
34,
-28,
-31,
11,
17,
-31,
31,
-48,
-4,
-3,
-20,
-21,
25,
-24,
-25,
60,
35,
-6,
28,
1,
28,
-39,
10,
-43,
46,
30,
8,
-25,
-24,
16,
-8,
-35,
3,
-36,
-1,
-12,
-18,
-1,
54,
8,
-7,
35,
25,
-4,
-30,
-30,
46,
16,
53,
17,
-29,
-4,
45,
-21,
14,
-31,
-25,
6,
-16,
-4,
-12,
-9,
3,
37,
-15,
-5,
16,
16,
-31,
11,
-37,
-2,
-58,
-41,
41,
-21,
28,
8,
29,
3,
0,
-16,
21,
-12,
-37,
17,
9,
-12,
-42,
-12,
-14,
-8,
-7,
28,
-14,
12,
-20,
-47,
-13,
39,
60,
21,
51,
5,
20,
13,
-37,
39,
-4,
-28,
-52,
-27,
-53,
37,
-1,
-3,
-13,
5,
37,
-27,
2,
-57,
-47,
-47,
-45,
4,
-40,
-2,
11,
-59,
34,
-8,
87,
1,
33,
-12,
51,
-21,
12,
1,
25,
37,
8,
10,
-1,
-11,
-10,
63,
26,
14,
26,
-36,
18,
38,
8,
8,
2,
23,
16,
-27,
11,
6,
4,
-29,
-24,
-44,
-27,
32,
6,
-8,
-23,
9,
-15,
39,
0,
-42,
-41,
47,
2,
-30,
-48,
13,
-11,
-5,
3,
16,
18,
-8,
46,
5,
30,
10,
-23,
-38,
-35,
33,
50,
18,
42,
11,
31,
1,
42,
-20,
23,
-21,
-8,
31,
-19,
67,
36,
-20,
42,
-16,
-31,
45,
26,
-9,
-48,
51,
3,
12,
27,
35,
6,
-3,
25,
0,
71,
2,
-1,
12,
-8,
0,
-22,
19,
-28,
38,
-10,
-64,
-30,
31,
-48,
5,
11,
-4,
0,
5,
7,
-46,
0,
-43,
26,
6,
-54,
-44,
-7,
15,
13,
27,
-39,
44,
12,
18,
-20,
18,
-76,
31,
42,
-17,
26,
0,
-30,
3,
0,
28,
-5,
-29,
16,
-10,
3,
38,
15,
24,
-29,
60,
18,
-46,
34,
-33,
36,
-9,
-16,
11,
-8,
-1,
-26,
-32,
26,
-62,
31,
-29,
-97,
25,
-11,
20,
3,
-8,
-38,
-4,
-22,
-31,
-64,
23,
9,
-71,
27,
-9,
55,
-12,
28,
-32,
-11,
-56,
-39,
-60,
7,
-25,
48,
11,
30,
-43,
-38,
-30,
-20,
51,
-35,
-11,
30,
9,
17,
-30,
53,
-15,
38,
48,
5,
-41,
3,
-18,
21,
17,
-2,
12,
43,
-18,
19,
-7,
31,
32,
14,
-53,
-24,
-8,
37,
3,
-32,
5,
16,
50,
13,
-5,
11,
41,
-66,
55
] |
M. J. Kelly, P.J.
These cases involve the distribution of no-fault survivors loss benefits under a policy insuring David Norman Perkins, who was fatally injured in an automobile accident on January 25, 1981. The deceased left a modern domestic entanglement. On May 13, 1981, Nadine Perkins filed suit in Ingham County Circuit Court both on her own behalf and as guardian of her minor son, Kuhn C. Perkins, seeking benefits, interest and attorney fees from the defendant-insurer, Riverside Insurance Company (now Transamerica Insurance Corporation of America). Unaware of this action, defendant filed suit six days later in Kent County Circuit Court, interpleading plaintiffs and Janet Louis Perkins, as guardian of her children, Daniel and Coreen. Following consolidation of the cases in Ingham County Circuit Court, plaintiffs and defendant filed motions for summary judgment under GCR 1963, 117.2(3) and all claims were disposed of by an order of summary judgment dated May 19, 1983. Defendant appeals from the order, challenging the trial court’s determination of the amount to be set off against the no-fault benefits as well as the trial court’s award of interest. Plaintiffs have not filed a cross-appeal. We affirm.
The follwoing facts were stipulated to by all parties, including Daniel and Coreen Perkins. David Norman Perkins was killed in an automobile accident that occurred on January 25, 1981. The accident did not occur in the course of his employment. Prior to the accident, he was married to and living with Nadine Perkins, with whom he had one minor child, Kuhn Perkins. The decedent had previously married and divorced Janet Louise Perkins, with whom he had two minor children, Daniel and Coreen. As a result of the divorce judgment, decedent was required to pay child support for Daniel and Coreen in the amount of $35 per child per week, or $151.66 per child per month.
The decedent was insured under a no-fault insurance policy with defendant which, as a result of his death, provided survivors loss benefits in the amount of $1,870 per 30-day period. Because the decedent had also been employed by the Michigan Department of State Police as a state trooper for approximately 13 years, he was covered under the Department of Public Safety pension, accident and disability fund act, MCL 28.101 et seq.; MSA 3.331 et seq. Upon his death, Nadine Perkins began receiving a monthly pension of $483.60. Also as a result of his death, Nadine, Kuhn, Daniel and Coreen each began receiving $153 per month in social security survivors benefits.
Defendant does not dispute its liability for no-fault benefits. Defendant does, however, contend that the no-fault benefits should be reduced by the amount of the pension recieved by Nadine Perkins. The trial court rejected defendant’s position as do we.
Section 3109(1) of the no-fault act provides:
"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.” MCL 500.3109(1); MSA 24.13109(1).
The intent of the Legislature in enacting § 3109(1) was to "reduce or contain the cost of basic insurance” by eliminating duplication of certain benefits. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 544; 273 NW2d 829 (1979), app dis 444 US 803; 100 S Ct 22; 62 L Ed 2d 16 (1979). Assuming that a claimant is entitled to other benefits under federal or state law, the test for determining whether no-fault insurance benefits must be reduced by the amount of the governmental benefit is two-pronged:
(1) the governmental benefit must substantially serve the same purpose as that served by the no-fault benefits, and
(2) the governmental benefit must be payable as a result of the same accident. Jarosz v DAIIE, 418 Mich 565, 577; 345 NW2d 563 (1984).
If both prerequisites are satisfied, then the governmental benefits are said to duplicate the no-fault benefits and setoff is required. Id., p 580. Under Jarosz, social security old age benefits do not duplicate no-fault benefits.
Nadine Perkins’ monthly pension of $483.60 is payable under MCL 28.107(4); MSA 3.337(4), which provides:
"If a member who continues as a member of the department of state police on and after the date he acquires 10 years of service credit and dies leaving a surviving spouse prior to the effective date of the member’s retirement, while a member of the department, that spouse shall receive a pension computed in the same manner, in all respects, as if the member had retired effective the day preceding the date of death, and nominated the spouse as beneficiary. The amount of pension payable monthly to the surviving spouse shall be equal to the member’s years of service credit, not to exceed 25 years, multiplied by 2% of his average annual salary for his last 2 years of service. Payment of the pension shall begin the first day of the calendar month next following the month in which the member dies. The retirement allowance shall continue to the spouse until death. If there is no surviving spouse, or upon the spouse’s death, then the pension shall be paid to the children under the age of 18 years, of such member, share and share alike. In the event of the spouse’s death, and no eligible children, there shall be paid to the deceased member’s estate or his legal representatives any residual accumulated contributions and interest made by him into the fund. A monthly benefit shall not be payable under this section if a monthly allowance is payable under any other section of this act.”
Nadine Perkins’ pension is thus payable under state law and must be scrutinized under the Jarosz test to determine whether it duplicates no-fault insurance benefits.
It is not seriously disputed that both benefits are payable as a result of the same accident. The dispositive inquiry is whether Nadine Perkins’ pension serves substantially the same purpose as that served by the no-fault benefits. The trial court concluded that the same purpose was not served by the no-fault survivors loss benefits and the police pension:
"The no-fault survivors’ benefit protects dependents against the loss of a wage earner’s support. The benefits are payable because the wage earner is no longer working and able to provide the support. Conversely, this pension protects a widow from losing the spouse’s retirement security. Here the pension benefits are paid to Mrs. Perkins only because her husband is unable to receive them because of his death. The pension is an asset Mr. Perkins was entitled to based on his contributions and his years of service. Mrs. Perkins receives the pension only as his beneficiary.
"Since it is designed to provide protection against a different kind of loss, the pension does not duplicate the no-fault survivors’ benefit. Therefore, the defendant is not entitled to a setoff for the pension benefits received by Mrs. Perkins.”
We agree with the trial court’s analysis. No-fault survivors benefits are designed to replace the loss of income or wages that decedent would have enjoyed had he continued his employment. Jarosz, supra, p 580. No-fault survivors benefits thus duplicate workers’ compensation benefits, Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980), and social security survivors loss benefits, O’Donnell, supra.
Contrary to the defendant’s argument on appeal, however, we find that the State Police pension is intended to protect the decedent’s retirement contributions and is not intended to replace dece dent’s wages. MCL 28.107(4); MSA 3.337(4) clearly refers to the pension as a retirement benefit. Under that provision, a spouse is entitled to a pension computed as if the deceased had retired the day preceding his or her death. Further, the pension is referred to as a "retirement allowance” payable to the widow until death only if the trooper had accrued at least 10 years of service.
We find support for our interpretation of MCL 28.107(4); MSA 3.337(4) in Teddy v Dep’t of State Police, 102 Mich App 412, 420-422; 301 NW2d 876 (1980), in which this Court held that recovery of a state police pension does not bar recovery of a workers’ compensation award. The Court found that the pension received under MCL 28.107; MSA 3.337 is intended as a retirement pension and does not, therefore, duplicate workers’ compensaion benefits intended to replace income loss. Our opinion extends the analysis one step further: the Michigan State Police pension does not duplicate no-fault survivors loss benefits intended to replace income loss. We thus affirm the trial court’s refusal to consider Nadine Perkins’ pension to reduce her no-fault benefits.
Defendant next argues that the trial court incorrectly computed the amount of the social security benefits to be set off against the no-fault benefits. Under the facts of this case, the different computa tion methods advocated by plaintiffs and by the defendant yields less than a $3 difference. Defendant says it pursues this issue for precedential purposes.
In computing the amount of setoff under § 3109(1), defendant contends that the sum of governmental benefits payable on behalf of the insured should be deducted from the sum of the no-fault benefits payable. The difference between these two sums, assuming that the no-fault benefits are greater, is then distributed as provided under the no-fault act. The trial court employed a different method in computing the amount of setoff in this case. First, each claimant’s no-fault benefits were separately calculated. Each separate award was then reduced by the amount of the governmental benefits payable to that claimant. Thus, after determining that Daniel and Coreen Perkins’ share of the no-fault benefits was equivalent to the amount owing in child support obligations, $151.66 per child per month, the trial court reduced each child’s no-fault award by the amount of social security benefits received and held that neither child was entitled to no-fault benefits. The result is that approximately $3 in social security benefits received by Daniel and Coreen Perkins are not deducted from the no-fault benefits.
The trial court further determined that Nadine Perkins was entitled to the maximum of $1,870 per mouth under MCL 500.3108; MSA 24.13108, reduced both by the amount of social security benefits received by her and her son ($306) and by the amount of no-fault benefits that would have been paid to Daniel and Coreen Perkins but for the social secuirty benefits ($303.33). The trial court thus calculated Nadine Perkins’ share of the no-fault benefits as $1,260.67.
Defendant relies on the Supreme Court’s recent decision in Thompson v DAIIE, 418 Mich 610; 344 NW2d 764 (1984), in which the Court held that social security benefits received by the insured’s wife and dependent children were to be lumped with his social security benefits in determining the amount to be set off against the no-fault benefits otherwise due. In that case, the insured, his wife and children were all part of the same household so that the receipt of social security benefits by any member of that household duplicated the no-fault benefits paid to the insured for the purpose of replacing the amount he would have contributed to the household in wages. Justice Levin expressly acknowledged that the same analysis would not necessarily apply where the insured, due to divorce, is or was not part of the same household as his or her dependents. 418 Mich 617, fn 8. We thus conclude that Thompson is not controlling on whether the social security benefits received by Daniel and Coreen Perkins should be lumped together with the social security benefits recieved by Nadine and Kuhn Perkins for purposes of computing the amount to be subtracted from the no-fault benefits in this case.
Instead, we adopt the trial court’s method of computation where governmental benefits under MCL 500.3109(1); MSA 24.13109(1) are received by an insured’s dependents comprising more than one household. No-fault benefits are reduced by certain governmental benefits only to avoid double recovery or redundant payment windfalls. Social security survivors loss benefits to Daniel and Coreen Perkins duplicate no-fault insurance benefits payable in this case only to the extent that Daniel or Coreen would have enjoyed the benefit of the decedent’s income. Because Daniel and Coreen Perkins would have benefitted from the deceased’s income in the amount of $303.32 per month, that is the correct amount which should be subtracted from the no-fault benefits under § 3109(1) of the no-fault act.
Finally, defendant contends that the trial court erred in awarding both prejudgment interest under MCL 600.6013; MSA 27A.6013 and interest on overdue payments under MCL 500.3142; MSA 24.13142. We disagree on the basis of this Court’s reasoning in Nash v DAIIE, 120 Mich App 568, 572-573; 327 NW2d 521 (1982), lv den 417 Mich 1088 (1983). See also, Wood v DAIIE, 413 Mich 573, 589; 321 NW2d 653 (1982), and Fortier v Aetna Casualty & Surety Co, 131 Mich App 784, 793-794; 346 NW2d 874 (1984).
Affirmed.
Daniel and Coreen Perkins are not parties to the instant appeal. Use of the term plaintiff's throughout this opinion refers to Nadine and Kuhn Perkins only.
Plaintiffs do argue that the pension benefits and no-fault benefits are not payable as a result of the same accident because in order to receive the pension benefits the decedent must also have completed more than 10 years of service. While it is true that 10 years of service is a condition of receiving the pension provided under MCL 28.107(4); MSA 3.337(4), it is clear that the receipt of both benefits are triggered as a result of the same accident. The decedent was not receiving the pension prior to the accident.
At oral arguments, defendant relied for support upon Krygel v Detroit, 135 Mich App 187; 353 NW2d 116 (1984). In that case, plaintiff was a police officer with the City of Detroit and recieved charter benefits pursuant to Chapter 21, § 18 of the 1974 Charter of the City of Detroit. In determining whether those charter benefits should be set off against no-fault insurance benefits, the Court held that because the charter benefits were elected in lieu of workers’ compensation benefits, which may be set off against no-fault benefits, the insurers should also be allowed to set off the charter benefits. This Court agreed with the insurer’s position in Krygel. For reasons already stated in our opinion, Krygel is not dispositive in the instant case. Unlike City of Detroit charter benefits, the state police pension does not duplicate workers’ compensation benefits. | [
-13,
25,
-10,
-2,
43,
-31,
19,
-11,
-2,
-38,
-64,
-36,
38,
59,
-14,
10,
29,
0,
-33,
-23,
-57,
-14,
-8,
-4,
23,
-7,
28,
-67,
-16,
-33,
-7,
-29,
-21,
-34,
-43,
31,
-29,
-38,
-21,
65,
-25,
-54,
64,
6,
-17,
-13,
33,
-3,
25,
32,
-48,
-11,
13,
-11,
17,
3,
92,
49,
-6,
-19,
-37,
-5,
24,
3,
-7,
25,
-6,
17,
38,
-16,
3,
19,
-30,
23,
-2,
-5,
-19,
23,
-7,
-61,
3,
2,
60,
8,
-25,
-7,
-28,
7,
16,
67,
-55,
20,
-10,
-15,
-5,
42,
-22,
26,
-4,
44,
5,
-11,
24,
18,
15,
27,
22,
-58,
-7,
20,
9,
9,
36,
36,
-5,
-6,
-27,
-44,
19,
91,
3,
-16,
17,
-7,
29,
22,
-34,
31,
-8,
-6,
1,
46,
66,
-1,
23,
-18,
19,
-82,
-13,
-23,
2,
-16,
10,
-19,
3,
50,
-6,
-62,
44,
-43,
-32,
26,
12,
0,
0,
-54,
27,
-13,
14,
-42,
-5,
-55,
7,
27,
-47,
-57,
-4,
41,
13,
-20,
20,
-6,
8,
0,
33,
52,
43,
6,
-39,
22,
-4,
4,
-25,
-6,
-9,
-78,
26,
-28,
-26,
6,
45,
-59,
-38,
43,
-30,
26,
58,
19,
21,
23,
32,
-33,
25,
-31,
-5,
22,
13,
-26,
-2,
-5,
52,
-52,
0,
-25,
-35,
22,
-4,
-37,
8,
-61,
-1,
-19,
-21,
-66,
-28,
-40,
-18,
-48,
-54,
-32,
18,
-82,
16,
15,
-57,
39,
-8,
-22,
15,
49,
53,
-51,
18,
-11,
48,
-5,
16,
-13,
-44,
36,
-27,
12,
-33,
9,
2,
12,
14,
46,
-38,
-7,
-23,
51,
-44,
39,
-3,
10,
9,
-27,
-12,
-28,
15,
-1,
56,
-50,
8,
-65,
22,
50,
23,
4,
6,
25,
-13,
-43,
7,
-12,
-35,
-22,
-38,
-22,
-8,
-31,
23,
-39,
35,
0,
29,
-19,
51,
18,
0,
-20,
40,
-8,
-16,
-51,
-22,
-10,
-8,
45,
5,
-5,
0,
-37,
54,
-17,
-5,
-53,
-6,
20,
29,
56,
-43,
39,
-48,
-10,
-1,
41,
18,
17,
-43,
13,
7,
-22,
1,
-72,
-17,
16,
24,
-38,
0,
17,
35,
50,
-9,
-51,
62,
35,
-17,
-16,
-40,
20,
40,
-36,
-18,
25,
56,
-37,
4,
61,
0,
5,
-16,
26,
-30,
15,
24,
2,
-14,
42,
30,
25,
-41,
-4,
-8,
2,
19,
37,
12,
0,
-6,
29,
-5,
17,
10,
27,
-4,
-34,
45,
23,
-21,
-37,
36,
-2,
-53,
-5,
-11,
36,
-34,
39,
-1,
16,
-18,
-24,
41,
71,
-9,
-63,
-11,
-40,
-10,
-57,
62,
0,
-18,
48,
48,
-30,
-33,
5,
5,
64,
-12,
-51,
-11,
-34,
-7,
41,
20,
19,
6,
44,
55,
-50,
40,
4,
-49,
9,
22,
15,
-22,
48,
1,
-28,
-14,
26,
-11,
-12,
77,
-31,
30,
36,
-14,
49,
-63,
-4,
52,
20,
-63,
-56,
-32,
-37,
48,
-10,
13,
-26,
-35,
32,
29,
-35,
-17,
-8,
-5,
-35,
49,
9,
12,
-65,
14,
-10,
-9,
10,
-43,
-9,
-34,
-32,
-14,
-13,
3,
-18,
21,
-26,
-40,
10,
9,
12,
-2,
36,
-14,
-68,
7,
-6,
22,
8,
55,
-21,
-19,
-64,
-66,
-48,
-1,
18,
7,
-8,
9,
30,
-22,
36,
41,
3,
5,
-35,
0,
13,
16,
-5,
-26,
6,
-37,
-35,
-16,
0,
8,
-10,
3,
-6,
-24,
3,
-29,
-47,
8,
6,
-13,
-6,
-44,
-28,
0,
15,
9,
-31,
22,
-19,
-12,
-16,
6,
2,
40,
-8,
-20,
-24,
21,
13,
-20,
-5,
6,
18,
-29,
-31,
27,
-39,
-45,
13,
40,
-33,
-1,
6,
12,
6,
-60,
2,
-3,
34,
-18,
8,
-79,
-47,
-2,
29,
-4,
-35,
-2,
41,
-5,
16,
39,
-13,
5,
-43,
-44,
-56,
-7,
8,
-4,
6,
-5,
19,
-27,
40,
0,
-68,
26,
25,
37,
-33,
-24,
-30,
13,
-42,
16,
-11,
8,
5,
8,
53,
16,
73,
49,
14,
-7,
4,
44,
-15,
4,
-30,
27,
-32,
-19,
55,
15,
-21,
-60,
48,
54,
40,
-60,
-20,
-4,
-44,
1,
-46,
-52,
26,
-11,
-2,
-1,
1,
-25,
-9,
-35,
4,
3,
7,
14,
73,
-31,
-10,
14,
-22,
39,
-6,
-28,
-1,
12,
44,
17,
42,
-39,
47,
-1,
43,
-34,
23,
-4,
4,
-37,
23,
-5,
20,
18,
-25,
-9,
12,
-41,
13,
-6,
-6,
36,
30,
13,
27,
-19,
26,
-56,
-33,
-43,
6,
15,
-10,
9,
25,
-49,
22,
19,
-64,
-34,
7,
44,
-29,
-18,
-51,
-45,
-39,
-40,
-24,
24,
34,
63,
0,
-23,
1,
-9,
-11,
-10,
12,
-11,
18,
27,
2,
-39,
4,
37,
9,
28,
10,
-18,
-4,
-24,
35,
71,
54,
-31,
12,
53,
8,
3,
-27,
47,
33,
17,
0,
32,
-21,
18,
28,
-12,
-19,
-25,
1,
47,
-43,
-37,
44,
-11,
-33,
-1,
9,
20,
-28,
-46,
-8,
7,
24,
20,
-6,
-15,
-39,
20,
-7,
-21,
86,
-16,
42,
32,
0,
9,
9,
-1,
-23,
14,
-15,
64,
71,
-11,
11,
45,
-7,
23,
14,
17,
26,
38,
-1,
5,
53,
-46,
-12,
-46,
8,
-26,
20,
42,
4,
-42,
-21,
-36,
14,
34,
4,
0,
-16,
-36,
0,
28,
29,
-22,
65,
23,
-14,
-29,
-53,
37,
5,
-29,
-5,
-5,
11,
4,
1,
47,
29,
-28,
-80,
29,
60,
-9,
-35,
-10,
29,
-9,
-22,
-31,
-38,
-12,
-6,
14,
28,
-7,
-5,
-20,
12,
-31,
11,
-30,
-7,
-2,
35,
-5,
-33,
4,
-19,
-15,
-24,
10,
39,
-47,
35,
31,
9,
-28,
-4,
-2,
23,
-5,
-59,
-69,
-19,
-31,
48,
11,
-46,
-20,
21,
-56,
10,
0,
42,
-41,
-3,
-1,
-17,
25,
38,
7,
31,
2,
15,
17,
43,
-2,
5,
16,
-35,
-17,
-75,
37,
-47,
-9,
-9,
-44,
48,
0,
-23,
-49,
45,
46,
-14,
14,
7,
-26,
17,
0,
25,
-65,
-5,
-24,
8,
58,
-10,
-41,
0,
73,
-11,
-41,
14,
33,
3,
-10,
43,
-26,
23,
-43,
50,
28,
-28,
89,
-77,
31,
30,
-12,
-29,
24,
-15,
3,
-49,
33,
-61,
18,
46,
34,
0,
-30,
3,
-11,
38,
-29,
36,
-47,
-59,
-81,
10,
0,
39,
-4,
60,
15,
3,
16,
77,
-2,
-30,
26,
18,
-6,
47,
-1,
5,
-26,
21,
39,
10,
-39,
34,
-17,
-41,
-26,
80,
-58,
-29,
11,
-4,
40,
-29,
12,
-32
] |
Per Curiam.
Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to a minimum of 8 years and a maximum of 20 years imprisonment. Defendant appeals to this Court as of right.
Defendant’s first claim is that there was insufficient evidence to satisfy the armed element of the crime of armed robbery. At trial the complainant, Mary Conry, testified that the assailant held his hand in his pocket indicating he had a gun. This evidence was sufficient to support conviction for armed robbery. A defendant may be convicted for armed robbery even if the weapon was not actually seen by the complainant. People v Hayden, 132 Mich App 273, 293; 348 NW2d 672 (1984); People v McCadney, 111 Mich App 545; 315 NW2d 175 (1981); People v Krist, 93 Mich App 425; 287 NW2d 251 (1979), lv den 407 Mich 963 (1980). This case is unlike People v Parker, 417 Mich 556; 339 NW2d 455 (1983), cert den — US —; 104 S Ct 2180; 80 L Ed 2d 561. (1984), where no evidence of the presence of a weapon was adduced at trial. The evidence when viewed in the light most favorable to the prosecution is sufficient as to each element of the offense, so as to warrant a finding of guilt beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), reh den 407 Mich 1164 (1980).
Defendant also suggests that he was denied effective assistance of counsel. The test for effective assistance of counsel is stated in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977). It is a two-pronged test. A lawyer must perform at least as well as a lawyer with ordinary training and skill in the criminal law. A defendant may also be deprived of effective assistance of counsel if trial counsel makes a serious error but for which defendant would have had a reasonable chance of acquittal. Garcia, supra. This test parallels the test for effective assistance of counsel recently announced in Strickland v Washington, — US —; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Under Strickland there is a strong presumption of effective assistance of counsel.
To support his position, defendant points to the fact that trial counsel did not make a motion to quash the information or to suppress evidence nor did he object to an identification obtained during a line-up conducted in the presence of counsel. We disagree. The motions would have been frivolous. The police arrested defendant based on probable cause. Beck v Ohio, 379 US 89; 85 S Ct 223; 13 L Ed 2d 142 (1964). A search incident to a lawful arrest is valid. People v Nelson, 29 Mich App 251; 185 NW2d 183 (1970). The police line-up was constitutionally valid; the subsequent in-court identification was admissible. People v Johnson, 113 Mich App 414, 419; 317 NW2d 645 (1982). Defense counsel is not required to make useless motions. People v Viaene, 119 Mich App 690; 326 NW2d 607 (1982). Defense counsel’s representation of defendant did not fall below the standard stated in Garcia and Strickland.
Defendant’s conviction is affirmed. | [
46,
28,
28,
4,
-45,
-16,
-27,
-14,
-43,
63,
4,
-14,
-43,
-31,
45,
-12,
4,
62,
53,
-73,
-9,
14,
-39,
32,
-43,
-30,
44,
33,
-18,
28,
20,
11,
23,
-5,
-20,
-1,
99,
26,
-6,
19,
26,
13,
18,
55,
-63,
-19,
24,
-18,
31,
1,
22,
2,
-15,
-3,
-20,
-20,
23,
10,
20,
29,
96,
8,
-43,
-26,
-21,
-40,
8,
21,
-37,
-47,
-11,
20,
-13,
-39,
10,
15,
23,
12,
9,
30,
0,
-27,
29,
3,
12,
3,
-5,
-30,
-11,
-20,
-41,
39,
-40,
-28,
-20,
-29,
33,
-91,
37,
21,
-51,
-31,
-6,
-43,
-17,
9,
-67,
-75,
-19,
12,
26,
4,
56,
6,
9,
-38,
-2,
-8,
4,
49,
-26,
39,
40,
0,
40,
-44,
13,
-38,
10,
-4,
-3,
48,
-4,
26,
-27,
-5,
17,
17,
27,
21,
-48,
18,
9,
-22,
33,
23,
-30,
-41,
37,
11,
-25,
17,
-78,
13,
11,
-22,
-52,
-29,
11,
-22,
-11,
13,
0,
-27,
9,
-34,
3,
-15,
-14,
-11,
-39,
-14,
52,
51,
36,
-3,
33,
-7,
27,
-1,
6,
-3,
8,
5,
28,
39,
-43,
2,
-37,
-47,
-26,
-3,
-19,
-34,
56,
9,
33,
-3,
8,
-78,
-13,
-29,
13,
-34,
-8,
9,
12,
-1,
-2,
-9,
23,
9,
-1,
-27,
-13,
-14,
-36,
-40,
-16,
23,
-64,
0,
47,
-58,
39,
-32,
-18,
34,
-9,
25,
40,
0,
-26,
-6,
-22,
29,
-1,
-31,
59,
-6,
-3,
-12,
8,
-63,
24,
-11,
7,
40,
32,
-8,
8,
9,
3,
48,
-32,
14,
35,
4,
-25,
6,
-67,
36,
-33,
-13,
-46,
89,
-13,
3,
-40,
20,
52,
2,
2,
50,
44,
-47,
-46,
6,
-29,
4,
68,
44,
2,
-5,
-3,
-13,
6,
8,
26,
-3,
38,
-27,
-27,
-24,
37,
-13,
-12,
10,
-54,
21,
40,
19,
8,
-2,
-22,
-1,
28,
8,
-56,
-13,
29,
18,
4,
-47,
-3,
-7,
-6,
-70,
21,
13,
-16,
-42,
11,
-41,
55,
-31,
17,
-36,
-37,
-32,
-16,
25,
2,
-12,
-11,
34,
0,
23,
76,
11,
10,
-32,
-4,
3,
14,
16,
0,
34,
-34,
-17,
35,
14,
16,
6,
30,
-26,
-43,
-21,
31,
-17,
12,
-39,
36,
26,
67,
33,
-6,
16,
-9,
32,
19,
-90,
21,
-33,
23,
-20,
40,
40,
0,
-15,
-5,
6,
77,
-23,
-33,
-38,
28,
-38,
-53,
11,
-47,
-13,
10,
-83,
-13,
-15,
-26,
39,
45,
-37,
-49,
0,
25,
-4,
-75,
-17,
-49,
32,
-41,
-20,
-68,
43,
5,
71,
-31,
-35,
44,
-31,
3,
-43,
19,
10,
-2,
-4,
-6,
7,
-17,
-28,
-55,
-57,
0,
0,
27,
17,
41,
-21,
-22,
28,
15,
-4,
-43,
-74,
1,
-24,
25,
12,
-12,
-39,
-19,
-28,
-13,
-35,
46,
-65,
22,
39,
15,
-3,
5,
11,
46,
-27,
3,
7,
51,
-43,
-64,
-49,
35,
-41,
58,
-5,
12,
3,
-23,
17,
10,
39,
12,
7,
31,
31,
21,
-32,
-4,
-44,
-33,
-13,
11,
-6,
18,
-32,
2,
21,
-36,
36,
-28,
-19,
-6,
-30,
-7,
12,
29,
1,
11,
1,
18,
4,
2,
59,
6,
19,
-38,
14,
-20,
-6,
-20,
-10,
-10,
37,
-17,
-46,
-10,
31,
10,
-8,
-24,
-34,
-26,
45,
10,
23,
-33,
-11,
28,
28,
-27,
-33,
3,
-17,
-9,
21,
16,
12,
-3,
3,
23,
-1,
41,
-3,
-4,
7,
46,
-3,
0,
-39,
-6,
-4,
16,
-40,
-47,
20,
42,
49,
-18,
-24,
-25,
-15,
30,
-43,
-18,
59,
-2,
16,
-38,
28,
36,
61,
20,
0,
45,
61,
-34,
-4,
-32,
-3,
53,
21,
-7,
15,
-23,
11,
33,
-13,
-58,
-51,
-26,
-45,
3,
18,
5,
5,
6,
0,
23,
-35,
17,
17,
7,
-18,
68,
-26,
-19,
7,
-78,
-28,
-17,
38,
-72,
40,
25,
13,
44,
21,
-5,
-11,
-26,
-10,
0,
-22,
-15,
-42,
-43,
-8,
-60,
51,
-32,
36,
-41,
-43,
-50,
23,
13,
-51,
7,
17,
-5,
32,
8,
-59,
-4,
20,
4,
-17,
13,
4,
-37,
24,
-24,
-11,
18,
56,
-67,
-21,
32,
47,
27,
7,
3,
4,
-24,
-22,
32,
-44,
-4,
24,
9,
-20,
41,
-45,
-27,
-40,
47,
-10,
-13,
56,
-8,
-31,
26,
6,
19,
46,
9,
-27,
37,
-34,
53,
29,
-24,
22,
3,
-8,
-35,
-18,
14,
45,
-21,
-68,
-11,
-21,
-14,
58,
-17,
9,
9,
-58,
-82,
18,
11,
57,
-28,
-7,
-13,
11,
31,
8,
29,
2,
39,
1,
42,
0,
24,
4,
-9,
20,
-25,
36,
-24,
-16,
-40,
-3,
49,
-57,
-47,
12,
19,
-42,
3,
-40,
28,
40,
-12,
-24,
-8,
53,
40,
48,
-8,
-22,
-15,
5,
5,
-30,
-29,
-21,
-32,
-15,
13,
25,
-22,
-50,
23,
-7,
-60,
27,
-26,
17,
31,
11,
-5,
60,
-8,
13,
20,
-27,
-68,
-25,
-47,
-6,
6,
53,
-4,
24,
-10,
38,
-26,
1,
14,
-20,
51,
1,
25,
-8,
0,
36,
-9,
23,
14,
-19,
43,
-1,
-41,
15,
6,
28,
49,
-25,
30,
-19,
-14,
30,
-27,
-73,
-29,
64,
13,
-13,
-10,
-23,
-56,
-11,
17,
33,
-58,
-26,
-6,
-14,
-16,
35,
1,
34,
-14,
59,
58,
-1,
-21,
-50,
45,
-31,
38,
3,
6,
-24,
3,
-31,
19,
55,
18,
-58,
21,
21,
-14,
0,
2,
88,
20,
-30,
40,
-17,
-16,
0,
20,
0,
-18,
45,
-48,
13,
-18,
79,
32,
11,
-28,
6,
15,
-16,
-15,
-24,
-24,
25,
17,
49,
-25,
-3,
-24,
-20,
41,
-24,
-15,
-18,
18,
-15,
-48,
20,
58,
-13,
7,
32,
-45,
-27,
11,
14,
-6,
33,
-8,
4,
-4,
-19,
51,
-6,
-39,
7,
20,
34,
29,
-85,
19,
-12,
-41,
36,
-36,
10,
61,
-24,
7,
-8,
-3,
-31,
50,
-37,
-22,
13,
-63,
48,
-31,
15,
-56,
-11,
-7,
57,
-37,
-54,
-21,
42,
-1,
-5,
26,
32,
-19,
20,
-35,
-9,
-38,
-5,
38,
64,
-4,
-19,
-17,
28,
26,
-32,
20,
-46,
72,
-25,
21,
-14,
18,
0,
-29,
-38,
12,
-11,
-3,
-3,
7,
43,
-48,
-35,
-25,
45,
16,
14,
4,
12,
56,
-4,
-31,
10,
0,
32,
43,
-11,
-4,
22,
24,
-9,
-49,
-13,
-5,
6,
43,
-27,
-22,
-1,
16,
-23,
2,
-19,
-47,
60,
2,
36
] |
Per Curiam.
While delivering supplies for his employer, plaintiff was involved in an automobile accident. Defendant provides both no-fault and workers’ compensation coverage for the plaintiffs employer. Plaintiff filed claims for workers’ compensation and no-fault benefits. Pursuant to plaintiffs workers’ compensation claim, defendant voluntarily paid wage-loss benefits for a 12-week period. Defendant then ceased paying workers’ compensation benefits based on a medical opinion from its consulting physician which indicated that plaintiff could return to work. Plaintiff then filed a petition for workers’ compensation benefits against defendant. This claim was eventually redeemed for the total sum of $9,426.50.
Plaintiff then brought this suit to recover no-fault benefits. Prior to trial, defendant filed two motions for summary judgment. The first motion prayed that the trial court offset any judgment for no-fault benefits by the $9,426.50 workers’ compensation redemption agreement. The trial court granted this motion. The second motion prayed that the trial court order any judgment for no-fault benefits to be reduced by the sum of $119 per week workers’ compensation wage-loss benefits that plaintiff could have received had he further pursued his workers’ compensation claim and been successful. This would have limited plaintiffs recovery to $8.50 per week since the no-fault wage-loss benefit available to plaintiff was $127.50 per week with a three-year limitation. The trial court denied this motion. The jury then returned a verdict for plaintiff for no-fault wage-loss benefits of $127.50 per week for the statutory three-year period. Defendant appeals as of right.
Defendant argues that the trial court erred in denying its second motion for summary judgment and thereby limiting the amount defendant could set off from the jury verdict to the amount of the workers’ compensation redemption agreement. Defendant argues that it should be allowed to set off the amount of workers’ compensation benefits plaintiff would have received had he successfully pursued his workers’ compensation claim. No-fault insurers are allowed to set off "[bjenefits provided or required to be provided under the laws of any state or the federal government” which are payable for the same injury. MCL 500.3109(1); MSA 24.13109(1). In Thacker v DAIIE, 114 Mich App 374; 319 NW2d 349 (1982), lv den 419 Mich 875 (1984), this Court attempted to define "benefits required by law”:
"The plain meaning of 'require’ (as shown in Webster’s New World Dictionary) is 'to ask or insist upon, as by right or authority; demand’. Applying that language literally to this case would lead us to conclude that the workers’ compensation benefits 'required by the laws of the state * * *’ are those which the compensation provided would have to pay. Or, stated another way, those benefits which the plaintiff had the right to insist upon. That amount is clearly the sum which plaintiff could have received, had he elected to take his periodic benefits for the entire time he was entitled to them. Any lesser amount would not fit the definition.” 114 Mich App 378.
Thacker was followed by another panel of this Court in James v Allstate Ins Co, 137 Mich App 222; 358 NW2d 1 (1984). In Perez v State Farm Mutual Automobile Ins Co, 418 Mich 634; 344 NW2d 773 (1984), three justices in dicta found that:
"By declaring that workers’ compensation payments 'provided or required to be provided’ are to be sub tracted from a no-fault recovery, the Legislature appears to have set forth a straightforward answer to the question it was addressing: an injured worker must pursue available workers’ compensation payments because they are deductible simply by virtue of their availability. The 'required to be provided’ clause does not mean that sums payable as workers’ compensation that are not available to the injured worker because his employer failed to provide workers’ compensation coverage are nonetheless to be subtracted from no-fault work-loss benefits.
"The 'required to be provided’ clause of §3109(1) means that the injured person is obliged to use reasonable efforts to obtain payments that are available from a workers’ compensation insurer. If workers’ compensation payments are available to him, he does not have a choice of seeking workers’ compensation or no-fault benefits; the no-fault insurer is entitled to subtract the available workers’ compensation payments even if they are not in fact paid because of the failure of the injured person to use reasonable efforts to obtain them.
Most recently, this Court in Gregory v Transamerica Ins Co, 139 Mich App 327; 362 NW2d 268 (1984), expressly disagreed with Thacker and found that the no-fault insurer could only set off the amount received in the workers’ compensation redemption agreement. This Court in Gregory first reasoned that Thacker relied on Perez v State Farm Mutual Automobile Ins Co, 105 Mich App 202; 306 NW2d 451 (1981), which was reversed in Perez, 418 Mich 634. The Court in Gregory also found that the plaintiff in that case used reasonable efforts to obtain workers’ compensation benefits because the redemption procedure is authorized and governed by a statute, and a redemption must be approved by the hearing referee before it becomes effective. MCL 418.835; MSA 17.237(835), MCL 418.836; MSA 17.237(836). Finally, the Court in Gregory disagreed with the Thacker analysis on policy grounds. Under Thacker, the circuit court in evaluating the claimant’s no-fault claim would have to determine the amount of benefits payable to the claimant under the workers’ compensation act, thereby invading the exclusive jurisdiction of the Bureau of Workers’ Compensation. This Court also noted that the application of Thacker would curtail the use of redemptions in work-related auto accidents since the claimant would be required to fully pursue his workers’ compensation claim so that he could receive the full amount of benefits due. This could result in lengthy delays. The primary objective of the no-fault act was to provide assured, adequate and prompt recovery for certain economic losses arising from motor vehicle acci dents. Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538; 302 NW2d 537 (1981). The Court in Thacker ignored this primary objective of the no-fault act and instead relied upon the complementary legislative objective which is the containment of the premium costs of no-fault insurance. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979).
Considering both of these objectives, we agree with this Court’s conclusion in Gregory, supra, p 332, that:
"[W]here a redemption agreement is entered into in good faith, the amount 'required to be provided’ under the [Worker’s Disability Compensation Act] is, at most, the amount received by plaintiff under the redemption agreement.”
This Court’s finding in Thacker, that the insurer can set off the sum which plaintiff could have received had he elected to take his periodic benefits for the entire time he was entitled to them, is not applicable to this case. In this case, defendant voluntarily paid workers’ compensation benefits for a short period and then ceased the payments. Defendant sought the opinion of a medical doctor which indicated that plaintiff was no longer disabled. Plaintiff then filed a petition with the Workers’ Compensation Bureau insisting upon the full benefits he was entitled to under the act. The amount plaintiff "could have received” is clearly in question. Defendant’s workers’ compensation division could have been successful and plaintiff would not have received any workers’ compensation benefits. If that had occurred, defendant’s no-fault division would have had to pay the full jury verdict since it would not have been entitled to any setoff. The no-fault division may well have benefitted from this redemption. Both objectives of the no-fault act are therefore advanced by limiting the setoff to the amount of the workers’ compensation redemption. The no-fault insurer is allowed to set off a reasonable sum and the claimant receives prompt and adequate benefits.
At the conclusion of the trial, the court ordered defendant to pay plaintiffs medical expenses. Defendant argues that the workers’ compensation redemption agreement waives plaintiff’s right to receive future medical benefits under the no-fault insurance act. This Court stated in Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 364, n 2; 258 NW2d 227 (1977), that voluntary compromises which are made at redemption hearings are final settlements of an employer’s liability under the Worker’s Disability Compensation Act. It is clear, however, that plaintiff claimed payment for medical expenses under the no-fault act. The redemption agreement therefore did not bar plaintiff’s claim. The facts show that the medical tests and treatment were reasonably necessary to insure a proper diagnosis. The trial court could properly determine that these expenses were reasonable.
Defendant finally argues that the trial court erred in allowing plaintiff to present evidence regarding an alternative cause of action under the authority of Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135; 268 NW2d 317 (1978). Under Nawrocki a plaintiff may be able to continue to receive no-fault wage-loss benefits if he can show that, even though he is no longer disabled, his job with his employer is no longer available for him to return to and the loss is a direct consequence of the disability. Plaintiff did not plead this theory of liability in his complaint. Defendant filed a motion in limine to preclude any motion based upon this theory of liability. The trial court denied defen dant’s motion and plaintiff elicited testimony regarding this theory of liability. Plaintiff never amended his complaint to include this theory and defendant moved for a directed verdict at the close of proofs. The trial court ruled that plaintiff could not mention this theory in his closing argument. During its deliberation, the jury asked if they could rehear some of the testimony regarding this theory of liability. The trial court declined to instruct the jury to disregard any of the testimony relevant to the Nawrocki decision.
Plaintiff was properly allowed to present alternative claims of liability. The trial court also properly ruled that plaintiff could no longer argue liability under Nawrocki. Considering that the Nawrocki theory of liability was never explained to the jury, we find that defendant was not prejudiced by the admission of this testimony. The jury’s request to rehear this testimony does not show any prejudice as defendant claims. There is no indication that the jury based its verdict on the Nawrocki theory of liability. In fact, it is more probable that the jury asked to rehear this testimony since the Nawrocki theory of liability was not explained in closing argument, making the reason for placing this testimony in evidence somewhat confusing. Defendant has failed to prove that it was prejudiced by the jury’s having heard this evidence.
Affirmed.
The Thacker Court relies on the first definition of "require” as found in Webster’s New World Dictionary. That dictionary also defines "require” as "to demand by virtue of law, regulation, etc.” [What is required by law.]
See also Moore v Travelers Ins Co, 475 F Supp 891 (ED Mich, 1979).
Several of the cases discussed by the parties in their briefs are not pertinent where workers’ compensation payments are unavailable to the injured worker because the employer failed to provide workers’ compensation coverage. In Thacker v DAIIE, 114 Mich App 374; 319 NW2d 349 (1982), Moore v Travelers Ins Co, 475 F Supp 891 (ED Mich, 1979), and Luth v DAIIE, 113 Mich App 289; 317 NW2d 867 (1982), workers’ compensation payments were available to the injured worker although they were not actually paid to him. In Thacker and Moore, the injured workers redeemed their workers’ compensation claims for less than the total amount of available workers’ compensation payments they would otherwise have received; in Luth, an injured federal employee elected, pursuant to the federal workers’ compensation statute, 5 USC 8118(c), to utilize the sick and vacation days he had accumulated rather than to apply for available federal workers’ compensation payments.
This construction of the 'required to be provided’ clause of § 3109(1) is consistent with a common definition of the word 'require’. One panel of the Michigan Court of Appeals, in construing § 3109(1) has said that 'the plain meaning of "require” (as shown in Webster’s New World Dictionary) is "to ask or insist upon, as by right or authority; demand” ’. Thacker v DAIIE, supra, p 378.
"Consistent with this definition, the 'required to be provided’ clause of § 3109(1) means that Perez and Lopez must 'ask, demand, or call’ for any workers’ compensation payments that are available to them. If, however, those payments are unavailable to Perez and Lopez because their employer failed to provide workers’ compensation cover age, this provision does not mandate that they nonetheless be subtracted from no-fault work loss benefits.” 418 Mich 645-646.
See also Thacker v DAIIE, 114 Mich App 374, 379; 319 NW2d 349 (1982) (Kaufman, J., dissenting). | [
-8,
36,
-46,
29,
0,
6,
52,
-24,
-37,
30,
-59,
28,
30,
23,
24,
-37,
2,
-44,
-18,
-4,
-60,
-50,
3,
10,
-2,
-7,
13,
2,
-30,
26,
-45,
-12,
-13,
-45,
-75,
3,
-10,
56,
-21,
18,
-35,
-27,
9,
-18,
-13,
-42,
8,
8,
43,
-4,
24,
16,
-6,
-3,
21,
3,
19,
24,
-14,
18,
-17,
2,
66,
0,
-11,
-4,
-18,
18,
21,
0,
-72,
22,
20,
12,
8,
-5,
24,
39,
-38,
-32,
29,
-18,
14,
-13,
-60,
51,
10,
-47,
70,
-72,
-61,
-83,
-39,
36,
-19,
20,
-14,
44,
37,
51,
-49,
15,
21,
5,
8,
-16,
0,
-36,
-16,
60,
0,
13,
23,
5,
-8,
-9,
3,
-4,
17,
55,
3,
-23,
2,
-14,
4,
9,
9,
-21,
2,
14,
26,
6,
-4,
-22,
26,
2,
-25,
-20,
-3,
25,
0,
-7,
-49,
-24,
9,
30,
-9,
-36,
4,
-15,
-6,
26,
19,
5,
-7,
-24,
-13,
-4,
34,
-30,
8,
-14,
-8,
59,
-30,
-41,
10,
5,
28,
2,
29,
-51,
23,
-53,
34,
32,
48,
-34,
-39,
27,
-64,
6,
-22,
16,
-17,
-22,
-18,
38,
9,
-21,
15,
-1,
-33,
14,
3,
13,
38,
12,
13,
38,
9,
-89,
-4,
11,
-12,
31,
32,
16,
33,
-9,
6,
-18,
-7,
-92,
3,
22,
-2,
-16,
-8,
-53,
2,
-1,
-30,
-32,
-40,
-39,
-48,
-31,
63,
11,
-50,
-40,
-24,
21,
6,
2,
-15,
-52,
52,
14,
0,
-50,
-34,
-25,
-29,
-9,
-26,
-17,
-7,
1,
-13,
2,
0,
15,
-17,
-43,
-9,
41,
-33,
-14,
-35,
86,
1,
31,
-23,
-26,
-4,
28,
2,
38,
-42,
-1,
35,
2,
0,
-75,
18,
-13,
29,
0,
-33,
7,
-3,
-53,
-86,
43,
-7,
-58,
-19,
40,
53,
-50,
29,
32,
41,
-8,
-16,
47,
-17,
15,
-5,
-29,
9,
32,
5,
9,
-49,
-12,
-4,
6,
-35,
-75,
45,
-4,
56,
-31,
-21,
-42,
-30,
-19,
12,
75,
-4,
-18,
9,
-45,
5,
-33,
3,
-44,
-31,
3,
-17,
36,
-5,
-37,
-4,
-11,
-4,
1,
9,
29,
40,
12,
-33,
9,
64,
-5,
33,
21,
-13,
-10,
37,
-4,
6,
-13,
51,
-29,
-50,
25,
28,
-31,
-1,
-20,
3,
0,
17,
31,
-12,
44,
-30,
0,
30,
2,
-21,
-47,
22,
16,
-64,
51,
-4,
-7,
64,
-65,
10,
15,
-31,
-53,
12,
-22,
-76,
-20,
-3,
29,
-7,
88,
-40,
-50,
-20,
34,
-4,
-18,
27,
-21,
17,
-24,
15,
-36,
-39,
1,
-1,
-57,
3,
3,
1,
-18,
75,
-2,
-61,
-38,
66,
11,
-21,
-26,
16,
28,
0,
24,
-46,
14,
3,
17,
11,
-39,
-34,
-2,
-44,
-44,
-15,
2,
-32,
9,
-32,
-28,
2,
14,
-32,
-6,
32,
-32,
12,
13,
28,
31,
-39,
6,
23,
23,
-47,
-30,
-13,
-38,
0,
34,
58,
-13,
-36,
22,
54,
-6,
21,
32,
28,
-5,
24,
-6,
-29,
-33,
10,
6,
13,
13,
1,
-6,
-17,
-46,
-35,
8,
-1,
4,
49,
-15,
41,
-55,
-21,
13,
-48,
43,
-30,
-32,
-20,
-30,
-1,
5,
58,
-44,
-14,
-93,
12,
-13,
-32,
21,
5,
17,
44,
14,
-36,
1,
31,
20,
-36,
-24,
-30,
15,
-13,
-20,
-54,
31,
-30,
-28,
-4,
-16,
8,
-25,
-2,
-4,
-3,
-22,
-14,
-20,
-21,
33,
-33,
35,
23,
-21,
-5,
21,
72,
19,
10,
5,
11,
17,
19,
44,
16,
9,
74,
-45,
-6,
25,
1,
30,
10,
45,
19,
-20,
29,
0,
-40,
43,
-13,
-5,
14,
-12,
18,
7,
-24,
-5,
30,
27,
6,
-44,
-44,
-57,
28,
24,
9,
-9,
-16,
29,
-14,
31,
7,
-49,
0,
-7,
-17,
8,
-9,
4,
-83,
-26,
14,
-1,
-65,
27,
89,
-27,
8,
33,
-34,
-45,
-23,
-74,
-33,
21,
16,
48,
16,
-4,
-1,
4,
-45,
36,
0,
2,
-54,
-30,
56,
23,
4,
-50,
3,
28,
-5,
60,
-31,
38,
-38,
34,
42,
8,
-50,
-51,
1,
37,
-5,
-93,
-13,
40,
40,
-53,
22,
10,
34,
10,
-36,
-25,
-28,
19,
-9,
-14,
-15,
15,
-2,
-22,
-11,
27,
62,
-6,
67,
50,
65,
38,
2,
30,
-41,
16,
-40,
-14,
20,
44,
-68,
11,
-25,
-38,
56,
-19,
-35,
63,
0,
-7,
1,
32,
59,
51,
-5,
-6,
3,
25,
-59,
-20,
-8,
17,
-43,
-2,
23,
19,
-41,
-1,
-3,
-25,
-17,
45,
-17,
14,
-7,
-9,
2,
-51,
10,
16,
-38,
47,
8,
-2,
-10,
-29,
-8,
0,
-22,
56,
-20,
-17,
12,
30,
-43,
-17,
48,
35,
0,
27,
27,
-4,
-55,
10,
23,
25,
-6,
-4,
11,
26,
23,
-7,
33,
-30,
-22,
15,
1,
-47,
-19,
60,
0,
11,
-14,
-17,
31,
-39,
-39,
14,
13,
-6,
-1,
-1,
20,
-8,
-45,
-36,
-25,
12,
47,
17,
-33,
-32,
-22,
-35,
-36,
8,
-27,
18,
-22,
-12,
48,
7,
3,
-13,
2,
-26,
6,
24,
0,
-15,
28,
-31,
39,
-8,
46,
-12,
24,
-38,
42,
10,
0,
-20,
-5,
0,
-6,
47,
25,
68,
-53,
-68,
63,
-12,
-2,
-28,
26,
4,
8,
-11,
21,
36,
10,
48,
34,
-13,
-4,
-44,
39,
-9,
-53,
35,
41,
-7,
-51,
19,
22,
27,
-17,
-64,
16,
50,
12,
30,
-19,
-33,
-14,
-34,
1,
-1,
-27,
27,
58,
21,
-31,
12,
-5,
5,
-5,
44,
-32,
-10,
-7,
77,
-14,
20,
8,
-49,
-12,
-4,
7,
25,
-23,
33,
-9,
-5,
-63,
37,
24,
5,
-22,
-1,
-9,
-37,
-32,
35,
43,
-49,
40,
28,
15,
66,
40,
26,
-19,
-11,
-35,
33,
-5,
7,
12,
21,
55,
-4,
-7,
28,
11,
53,
-40,
-17,
-11,
-37,
16,
4,
24,
10,
-42,
-15,
-31,
-33,
3,
19,
65,
24,
-5,
-71,
-2,
0,
-2,
12,
-11,
26,
-76,
-42,
-19,
23,
19,
23,
37,
-11,
18,
14,
12,
-82,
21,
51,
-3,
2,
-25,
43,
36,
-8,
65,
8,
19,
-17,
-47,
-7,
48,
-15,
-33,
-15,
18,
4,
38,
0,
-13,
5,
82,
-22,
-2,
8,
-31,
-4,
-41,
-10,
-32,
9,
9,
-3,
25,
54,
31,
-52,
50,
4,
57,
32,
5,
24,
24,
18,
-27,
24,
0,
20,
47,
-2,
-4,
18,
22,
-29,
50,
68,
-59,
-48,
11,
-30,
48,
26,
32,
36
] |
Per Curiam.
In five cases, consolidated on appeal, the question is presented whether, under MCL 205.735(3); MSA 7.650(35)(3), mailing can constitute filing only when certified mail is used, as provided by Tax Tribunal Rule 201.
On June 30, 1982, appellant General Motors placed in the mail, with ordinary first-class postage attached, its petitions challenging the real estate assessments made by the respondents. The petitions were received by the Tax Tribunal on July 1, 1982, one day after the filing deadline. Four of the cases were dismissed on January 11, 1983, for lack of subject matter jurisdiction, pursuant to sua sponte orders of dismissal in favor of the City of Detroit and the City of Saginaw, an order granting the Livonia Public School District’s motion for accelerated judgment, and an order granting the City of Flint’s motion to dismiss. General Motors’ motions for rehearing, made in each of the four cases, were denied on June 16, 1983. Genesee Township then brought a motion for dismissal, which was granted on September 15, 1983. General Motors has appealed as of right in each of the five cases.
Respondents and the Tax Tribunal have taken the position that a petition is deemed filed on the date received except when it is sent by certified mail. General Motors argues on appeal that Rule 201’s certified mail requirement is not jurisdictional in nature, but, if it is, then it violates the due process and equal protection clauses of the Michigan and United States Constitutions. Assuming that General Motors’ challenge to the rule is valid, we must still affirm because the petitions were not timely filed under the statute.
Our review of the decisions of the Tax Tribunal, "in the absence of fraud, is limited to determining whether the tribunal made an error of law or adopted a wrong principle; the factual findings of the tribunal are final, provided that they are supported by competent and substantial evidence”. Antisdale v City of Galesburg, 420 Mich 265, 277; 362 NW2d 632 (1985). Where, as here, the question involves interpretation of the Tax Tribunal Act, the Tax Tribunal’s construction of the statute is entitled to respectful consideration. Wikman v City of Novi, 413 Mich 617, 650-651; 322 NW2d 103 (1982).
In Wikman, supra, the Supreme Court concluded that certain language in § 35 of the act was not free from ambiguity with respect to its jurisdictional nature. Accordingly, the Court held that the provisions of § 35 do not supersede other applicable and longer periods of limitation. In these cases, General Motors does not suggest there exists any other applicable period of limitations. Thus, we hold that § 35(3) governs the tribunal’s jurisdiction. See Szymanski v City of Westland, 420 Mich 301; 362 NW2d 224 (1985).
Section 35 requires that petitions in assessment disputes be filed no later than June 30 of the tax year in order to invoke the jurisdiction of the tribunal. Our courts have on numerous occasions recognized that, to be filed, a paper or document must be delivered to and received by the proper officer to be kept on file. People v Madigan, 223 Mich 86, 89; 193 NW 806 (1923); Beebe v Morrell, 76 Mich 114, 120; 42 NW 1119 (1889); King v Calumet & Hecla Corp, 43 Mich App 319, 325; 204 NW2d 286 (1972). This well-recognized general rule means that mailing does not constitute filing. Detroit United Railway v Dep’t of Labor & Industry, 231 Mich 539, 540; 204 NW 707 (1925), King, supra, OAG, 1949-1950, No 814, p 2 (July 27, 1948). The Legislature is assumed to have been aware of the prior interpretation of what constitutes filing when it passed the Tax Tribunal Act. Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513, 520; 158 NW2d 473 (1968); Sovey v Ford Motor Co, 279 Mich 313, 316; 272 NW 689 (1937). Thus, we must conclude that the Legislature intended the word "filing” in § 35 to fit the above definition and to preclude mailing as sufficient to invoke the jurisdiction of the tribunal.
We acknowledge that § 35 is subject to some ambiguity. However, we believe that ambiguity is limited to its jurisdictional nature as recognized in Wikman, supra. We do not believe the ambiguity extends to the meaning of filing. Any ambiguity in this respect can arise only out of Rule 201 itself. Since Rule 201 was promulgated in 1975, § 35 has twice been amended but without change in the "filing” requirement. However, apparent legislative acquiescence in an agency rule is not controlling where, as here, it is the lone factor favoring the agency’s position. Magreta, supra.
The tribunal has no authority to invalidate, change or enlarge upon a statute by rule. Eyde v Lansing Twp, 420 Mich 287; 363 NW2d 277 (1985); Sovey, supra, p 316. The tribunal "has no arbitrary power and the statutory limit is conclusive”. Meyers v Iron County, 297 Mich 629, 634; 298 NW 308 (1941). Accordingly, Rule 201’s premise that the jurisdiction of the tribunal can be invoked beyond the deadline by mailing (whether certified or otherwise) is invalid. Petitions must be delivered and received by June 30.
Sovey, supra, provides an apt analogy. There, the 10-day period for filing an appeal from a deputy commissioner’s award of workmen’s compensation benefits expired on a Sunday. The Department of Labor and Industry had adopted a rule that provided for the performance of certain acts on Monday when the last day of the period fell on Sunday. The Supreme Court concluded that the department could not enlarge the statutory 10- day period by its rule. Similarly, in these cases, the tribunal cannot by Rule 201 extend the filing period (and, thus, its jurisdiction) beyond the June 30 time limit as established by statute.
Because mailing does not constitute filing, General Motors did not file its petitions by June 30, so it did not invoke the tribunal’s jurisdiction. For the reasons stated in our opinion, we affirm the tribunal’s dismissal of the petitions.
Affirmed.
Section 35(3) of the Tax Tribunal Act provided in relevant part that "[t]he jurisdiction of the tribunal in an assessment dispute shall be invoked by the filing of a written petition by a party in interest, as petitioner, not later than June 30 of the tax year involved”. As amended by 1983 PA 163, the quoted language now appears in § 35(2).
Tax Tribunal Rule 201 (1979 AC, R 205.1201) provides: "Except in the small claims divisions, an appeal, application for review, or any other proceeding is commenced by filing a petition with the tribunal within the periods prescribed by statute. A petition shall be considered filed when mailed by certified mail addressed to the tribunal or when delivered in person, as permitted by GCR 1963, 107.”
Cf. Mann v Carson, 120 Mich 631, 634; 79 NW 941 (1899). See OAG, 1947-1948, No 774, p 691 (May 10, 1948), OAG, 1947-1948, No 747, p 656 (April 27, 1948).
That mailing does not equal filing has continued to be recognized since the passage of the Tax Tribunal Act, 1973 PA 186. Biafore v Baker, 119 Mich App 667, 669; 326 NW2d 598 (1982); People v Purofoy, 116 Mich App 471, 485; 323 NW2d 446 (1982), lv den 417 Mich 969 (1983); Hollis v Zabowski, 101 Mich App 456, 457-458; 300 NW2d 597 (1980); Thyne v Beggs, 62 Mich App 353, 355; 233 NW2d 278 (1975).
1975 AACS, R 205.1201.
1976 PA 365, 1983 PA 163. | [
-2,
-1,
14,
42,
-6,
39,
27,
17,
-39,
64,
-39,
17,
-18,
3,
-27,
9,
19,
41,
16,
2,
-20,
-11,
-21,
19,
-8,
-16,
7,
15,
25,
42,
-44,
-8,
4,
-23,
-51,
-45,
16,
0,
39,
11,
0,
15,
-3,
10,
-27,
-16,
48,
-11,
38,
-24,
17,
25,
-29,
10,
53,
-8,
1,
-27,
24,
29,
-3,
30,
46,
49,
11,
-6,
14,
14,
21,
2,
-32,
-24,
4,
3,
-22,
5,
-12,
6,
-35,
53,
-11,
-49,
15,
-31,
-14,
27,
-39,
10,
65,
-28,
-4,
-34,
-67,
-1,
24,
39,
62,
2,
-1,
10,
-28,
28,
3,
10,
-24,
-52,
-11,
-13,
-3,
-8,
37,
-11,
-46,
-37,
-31,
12,
33,
19,
27,
-26,
-5,
2,
23,
48,
6,
11,
-14,
2,
10,
23,
10,
76,
12,
26,
19,
6,
45,
-40,
39,
31,
-36,
43,
4,
-5,
-22,
-37,
52,
-6,
4,
-13,
-11,
13,
3,
21,
-52,
2,
44,
-40,
17,
-33,
0,
20,
-14,
-30,
0,
0,
-76,
31,
-18,
-63,
27,
7,
-21,
-13,
45,
-21,
-48,
30,
0,
-22,
-20,
14,
27,
-6,
15,
0,
-25,
3,
7,
-82,
25,
-6,
46,
-50,
-1,
23,
-6,
47,
-40,
7,
2,
-11,
0,
-62,
-17,
-3,
28,
-67,
-39,
30,
-20,
-43,
3,
-11,
42,
-15,
-52,
-30,
0,
45,
9,
21,
8,
11,
7,
-1,
-23,
5,
7,
19,
20,
21,
41,
-29,
8,
-16,
80,
11,
21,
-17,
-10,
2,
21,
-24,
-7,
38,
-58,
4,
44,
-7,
31,
-61,
8,
-34,
-20,
-27,
-9,
14,
22,
3,
42,
44,
-13,
-22,
-65,
47,
46,
22,
-20,
3,
-36,
53,
0,
13,
-17,
-33,
22,
-37,
25,
2,
-66,
-13,
-29,
-47,
-35,
53,
-4,
-41,
-18,
-12,
-21,
-3,
11,
84,
1,
2,
47,
-55,
13,
32,
2,
4,
80,
-42,
8,
-61,
-57,
-25,
12,
-20,
25,
-31,
-3,
-1,
0,
-20,
35,
-49,
66,
-7,
20,
92,
26,
-14,
-24,
2,
14,
-79,
-5,
-18,
19,
22,
8,
17,
25,
-8,
43,
-62,
2,
16,
-18,
-6,
-39,
25,
-32,
-35,
31,
3,
55,
23,
37,
17,
-38,
30,
25,
34,
35,
10,
-41,
34,
-26,
23,
8,
10,
-49,
-39,
-15,
-6,
7,
13,
-7,
-14,
5,
29,
-24,
-38,
-68,
7,
4,
-11,
-17,
-45,
-14,
-1,
47,
3,
27,
0,
44,
-57,
-3,
-18,
-34,
34,
-63,
-51,
43,
-12,
19,
52,
-8,
54,
24,
19,
2,
23,
22,
7,
-60,
76,
-11,
-38,
12,
1,
0,
-18,
13,
23,
28,
-33,
-35,
11,
-22,
-50,
-23,
-15,
0,
50,
1,
25,
-4,
14,
22,
-53,
7,
-13,
15,
-49,
7,
12,
-9,
-29,
-35,
3,
-37,
-35,
0,
11,
-26,
-30,
-3,
1,
-74,
-33,
-9,
-15,
-23,
-19,
42,
-27,
-12,
-35,
10,
-25,
-6,
-17,
-12,
1,
73,
-29,
-44,
-8,
-36,
25,
-27,
-22,
-36,
19,
2,
5,
-70,
10,
-16,
-18,
-31,
50,
-14,
-15,
-26,
-11,
14,
16,
-16,
32,
-39,
44,
-51,
-9,
31,
-1,
24,
-2,
20,
36,
45,
-12,
-28,
17,
-3,
20,
2,
-69,
46,
14,
2,
-2,
-73,
32,
20,
21,
-14,
-30,
-42,
-10,
0,
-1,
29,
-10,
6,
17,
21,
29,
44,
-6,
2,
-7,
-6,
29,
22,
21,
12,
46,
-23,
9,
13,
59,
-56,
-6,
6,
-48,
-23,
-38,
-45,
-3,
5,
-29,
-21,
-4,
-26,
-6,
-36,
20,
67,
-11,
25,
-58,
-43,
8,
8,
-48,
-19,
-24,
31,
-32,
-6,
7,
43,
-36,
-31,
-47,
-28,
25,
-29,
-36,
16,
-16,
13,
20,
25,
-17,
15,
-42,
9,
24,
11,
2,
-33,
0,
48,
-44,
12,
33,
-1,
-37,
-15,
6,
-33,
22,
-30,
-74,
7,
17,
13,
-9,
-38,
2,
-23,
-27,
22,
47,
-17,
-4,
-16,
17,
-5,
6,
51,
1,
-22,
23,
-6,
24,
-47,
5,
8,
-2,
22,
14,
6,
-72,
9,
3,
18,
-7,
28,
-6,
2,
26,
5,
42,
7,
20,
7,
-12,
-18,
30,
46,
-55,
-17,
-59,
17,
-48,
31,
15,
-7,
-8,
-27,
16,
38,
37,
-34,
-16,
-16,
-13,
20,
-10,
-5,
24,
-18,
-1,
1,
54,
-30,
15,
3,
-11,
3,
11,
14,
-30,
8,
32,
-12,
7,
-51,
-18,
-4,
45,
-3,
30,
7,
24,
-40,
37,
-56,
20,
-32,
11,
49,
12,
-38,
2,
21,
-17,
-41,
32,
-7,
-23,
-32,
-45,
16,
-35,
3,
-46,
45,
-18,
-17,
-16,
2,
34,
-2,
-7,
-21,
-9,
4,
10,
26,
53,
-39,
16,
-4,
29,
20,
-10,
-7,
48,
34,
34,
6,
-1,
49,
-2,
-8,
42,
-42,
19,
-1,
-5,
12,
25,
10,
-57,
-6,
53,
22,
21,
-49,
53,
19,
-47,
-3,
20,
23,
3,
5,
22,
-55,
-35,
31,
-33,
-20,
-7,
8,
34,
-1,
-52,
-19,
-18,
-51,
44,
15,
-37,
71,
-56,
21,
11,
4,
14,
2,
6,
-2,
13,
19,
-7,
4,
41,
-79,
15,
65,
34,
1,
28,
-68,
-48,
36,
-1,
11,
40,
-28,
-36,
1,
1,
-8,
6,
-23,
10,
6,
6,
-2,
37,
58,
30,
-26,
26,
-39,
-39,
44,
8,
43,
-40,
5,
-27,
-38,
7,
-16,
42,
-33,
32,
-11,
-22,
-5,
-5,
30,
37,
30,
47,
8,
-15,
33,
46,
57,
59,
-30,
5,
8,
-28,
-12,
-12,
55,
59,
34,
4,
20,
-19,
37,
-32,
-13,
26,
-28,
-20,
51,
1,
28,
-38,
-8,
-27,
23,
0,
-32,
-37,
19,
-21,
-17,
15,
12,
2,
0,
-49,
36,
-42,
0,
18,
19,
3,
16,
50,
-4,
-13,
-40,
-4,
7,
-17,
32,
-9,
6,
-12,
13,
-6,
27,
-19,
45,
27,
-51,
11,
3,
-7,
-32,
6,
9,
-4,
34,
-30,
-46,
29,
29,
-44,
28,
-35,
27,
2,
-26,
-32,
-28,
-21,
-41,
-35,
-42,
12,
17,
-33,
-6,
-51,
51,
21,
-59,
0,
-23,
-17,
-19,
-27,
-29,
16,
17,
0,
-4,
15,
9,
-58,
30,
-11,
-33,
41,
-24,
18,
8,
-24,
0,
11,
-9,
51,
25,
-19,
25,
2,
62,
0,
-6,
-40,
-26,
-19,
15,
18,
61,
-35,
-19,
-24,
12,
14,
-9,
-1,
8,
-7,
7,
-58,
16,
-16,
-1,
-27,
10,
34,
-22,
0,
-17,
9,
16,
4,
-24,
29,
-20,
-55,
11,
-16,
-45,
-9
] |
Per Curiam.
Plaintiffs appeal as of right from a Wayne County Circuit Court order dismissing these consolidated actions on the ground of forum non conveniens. Plaintiffs, insulation workers and their wives, alleged that defendants were responsible for their injurious exposure to asbestos and other materials. The circuit court declined jurisdiction, concluding that Wisconsin was a more convenient forum. We affirm.
Plaintiffs are residents of Wisconsin. They alleged that the exposures to asbestos and other materials occurred while plaintiff husbands worked as insulation applicators in Wisconsin and Michigan. Defendants are manufacturers, distribu tors, and sellers of insulation. According to plaintiffs, defendants negligently caused plaintiff husbands to come in contact with the dangerous substances, resulting in severe physical problems, disability and related damages. Plaintiffs also claimed breach of warranty and civil conspiracy.
Defendants moved to decline jurisdiction, noting as follows: that plaintiff husbands’ medical records and other information were in Wisconsin, beyond the court’s subpoena powers; that many witnesses, including most or all of the nonparty witnesses, were not in Michigan; that a small percentage (10-20 percent) of plaintiff husbands’ job sites were in Michigan, none were in Wayne County, and those in Michigan were, without exception, in the upper peninsula, more accessible to Wisconsin than the lower court in Michigan; that plaintiffs resided in Wisconsin and plaintiff husbands worked out of and received assignments at a union located in Wisconsin, both presently and when the exposures occurred; and that plaintiff husbands received their medical care in Wisconsin. Defendants argued there was no meaningful nexus between the litigation and Michigan, and convenience to the parties dictated that the court decline jurisdiction.
Plaintiffs responded that trial would be more inconvenient in Wisconsin because of transportation problems and because there were no other asbestos cases there with which the present cases could be consolidated. Plaintiffs further argued that, based on trial statements by defendants in other asbestos cases in Wayne County, trial would center on certain repetitive issues, such as intensity of exposure to asbestos and type of asbestos used. Witnesses from throughout the nation would be called. Plaintiffs asserted that Michigan exposures were substantial and that much of plaintiff husbands’ work in Michigan involved high temper ature applications, which involve a particularly lethal form of asbestos.
Plaintiffs claimed they lacked a forum in Wisconsin because it would be difficult to obtain jurisdiction over as many defendants there as in Michigan. No mention was made of any Wisconsin statute of limitations.
The circuit court dismissal of these cases was conditioned on an agreement by defendants to submit to Wisconsin jurisdiction and to stipulate to tolling of any Wisconsin statute of limitations for the period since plaintiffs commenced this litigation in Michigan. In a written opinion, the court explained its decision as follows:
"Notwithstanding the presence in Michigan of some potential factual witnesses who would testify about plaintiffs’ exposure to asbestos-contained products in Michigan, the far greater concentration of sources of cogent discovery and trial evidence available through compulsory process, e.g. factual witnesses concerning out-of-state employments and exposures, medical witnesses and documentation, is in the State of Wisconsin where the accrual of plaintiffs’ causes of action in whole or in part — occurred.
"Plaintiffs’ and defendants’ expert witnesses relative to the hazards to human health resulting from exposure to asbestos-contained products and so-called state of the art witnesses are variously located throughout the United States.
"None of the known witnesses to be called at trial reside in Wayne County. * * *
"Fairness, convenience and the efficient administration of justice to litigants and witnesses dictates that these proceedings be dismissed and that plaintiffs’ claims be litigated in a Wisconsin forum.”
Application of the doctrine of forum non conve miens is within the discretion of the trial judge. Dayton Mall Motor Inn v Honeywell, Inc, 132 Mich App 174, 178; 347 NW2d 15 (1984). The Supreme Court adopted the doctrine in Cray v General Motors Corp, 389 Mich 382, 396; 207 NW2d 393 (1973), stating: "It is within the discretion of the trial judge to decline jurisdiction in such cases as the convenience of the parties and the ends of justice dictate.” The trial judge should consider the following criteria, although they are not all inclusive:
"1. The private interest of the litigant.
"a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
"b. Ease of access to sources of proof;
"c. Distance from the situs of the accident or incident which gave rise to the litigation;
"d. Enforcibility [sic] of any judgment obtained;
"e. Possible harassment of either party;
"f. Other practical problems which contribute to the ease, expense and expedition of the trial;
"g. Possibility of viewing the premises.
"2. Matters of public interest.
"a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
"b. Consideration of the state law which must govern the case.
"c. People who are concerned by the proceeding.
"3. Reasonable promptness in raising the plea of forum non conveniens.” Cray, supra, pp 395-396; Dayton Mall, supra, pp 178-179.
One of the factors of "public interest” herein is the congested docket of the Wayne Circuit Court. Anderson v Great Lakes Dredge & Dock Co, 411 Mich 619, 631; 309 NW2d 539 (1981); Hamann v American Motors Corp, 131 Mich App 605, 609- 610; 345 NW2d 699 (1983). We do not suggest that the judges of that circuit use their backlogs, standing alone, as justification for dismissal of any litigation with a foreign tinge. Nevertheless, where a plaintiffs interest in a forum is slight, the plaintiffs choice of forum is entitled to less weight. Anderson, supra, pp 628-629.
In this case, the trial judge carefully weighed "the relative advantages and disadvantages of jurisdiction and the ease of and obstacles to a fair trial in this state”. Cray, supra, p 396. We conclude that he committed no abuse of discretion by declining jurisdiction. There is only a slight nexus between this litigation and the chosen forum. Anderson, supra, p 629.
Application of the doctrine of forum non conveniens presupposes that two courts can obtain jurisdiction. Anderson, supra, p 628; Cray, supra, p 395; Restatement Conflict of Laws, 2d, § 84. On appeal, plaintiffs for the first time assert that their claims are barred in Wisconsin by a three-year statute of limitations. Wis Stat, §893.54. We decline to address this issue. While the rule forbidding consideration of issues first raised on appeal is not written in stone, such consideration is impossible where the necessary facts are not before us. Loper v Cascade Twp, 135 Mich App 106, 111; 352 NW2d 357 (1984). The Wisconsin Supreme Court recently held that tort claims accrue, not at the time of the injury but, "on the date the injury is discovered or with reasonable diligence should be discovered”. Hansen v A H Robins, Inc, 113 Wis 2d 550, 560; 335 NW2d 578, 583 (1983). There is nothing in the record regarding when plaintiffs discovered or should have discovered their alleged injuries. Moreover, in view of the stipulation by defendants that the Wisconsin statute is tolled from the date plaintiffs commenced this litigation, plaintiffs’ cases are in no greater peril in Wisconsin than in Michigan in this respect. See, MCL 600.5805(9); MSA 27A.5805(9); Connelly v Paul Ruddy’s Equipment & Repair Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972).
Affirmed.
On appeal, defendants have filed an updated stipulation to the same effect. | [
5,
38,
-45,
-3,
3,
15,
3,
-3,
-13,
12,
-34,
2,
53,
-45,
-1,
-71,
19,
19,
19,
27,
-5,
37,
-11,
-4,
1,
-42,
-13,
17,
21,
-10,
-25,
-45,
8,
-41,
-54,
-2,
21,
31,
-56,
26,
-24,
-88,
63,
-35,
-16,
-4,
43,
22,
27,
-8,
39,
48,
-16,
-19,
-35,
1,
-25,
36,
-6,
-35,
-33,
24,
-10,
9,
73,
36,
15,
34,
20,
32,
-3,
8,
-7,
-37,
50,
-33,
-70,
17,
-42,
6,
26,
-3,
22,
-9,
-55,
-1,
-17,
50,
-4,
47,
27,
-6,
-40,
-2,
18,
24,
-10,
36,
40,
-1,
-57,
24,
-4,
14,
-4,
49,
23,
-50,
-9,
3,
5,
7,
-21,
6,
17,
43,
37,
24,
21,
53,
-25,
-50,
-3,
24,
23,
1,
-5,
-11,
-6,
-1,
38,
25,
24,
-9,
8,
7,
5,
-41,
-26,
-13,
-6,
-5,
0,
15,
18,
24,
32,
-63,
16,
-16,
-6,
-15,
5,
6,
-15,
59,
70,
-13,
33,
30,
53,
30,
-50,
-9,
-34,
-81,
-25,
45,
24,
13,
19,
-14,
14,
-35,
10,
16,
22,
-4,
-4,
54,
-4,
-31,
-3,
-27,
30,
-39,
-23,
-6,
-9,
-47,
36,
3,
28,
-3,
-11,
44,
71,
53,
-15,
13,
-9,
-38,
-37,
-21,
-29,
-3,
93,
-29,
27,
-24,
-7,
4,
-20,
-59,
79,
-35,
12,
-36,
-6,
-13,
35,
-2,
38,
27,
-40,
37,
-11,
-49,
58,
-36,
-2,
-50,
32,
3,
-26,
0,
21,
2,
70,
-15,
16,
21,
-21,
22,
-15,
-19,
-98,
-9,
-85,
-14,
-9,
-5,
64,
-10,
-9,
-43,
2,
35,
-85,
-29,
19,
25,
-67,
-28,
39,
13,
-14,
44,
-15,
-15,
-60,
33,
34,
-25,
-48,
-24,
0,
53,
28,
12,
-12,
-18,
23,
-35,
-1,
53,
-16,
-33,
-31,
10,
-9,
4,
-17,
-4,
-6,
22,
10,
-28,
-30,
26,
-29,
3,
-25,
-9,
-17,
-16,
-86,
38,
11,
4,
-13,
0,
-8,
-18,
42,
40,
14,
-5,
9,
-57,
0,
17,
-33,
-61,
-29,
6,
-19,
-13,
12,
-18,
-52,
-46,
-1,
25,
-27,
11,
24,
-12,
-15,
17,
1,
-23,
-34,
19,
-11,
-18,
-16,
-15,
32,
-49,
2,
-37,
47,
-21,
-40,
6,
-18,
-25,
-7,
12,
35,
18,
-32,
25,
-21,
25,
10,
-30,
18,
39,
-48,
-30,
52,
-9,
-3,
14,
-20,
63,
5,
18,
-16,
-61,
38,
5,
26,
19,
-36,
40,
-39,
4,
-12,
-68,
27,
68,
16,
56,
6,
-15,
-19,
37,
27,
38,
-5,
18,
21,
-35,
-7,
-23,
-21,
9,
-21,
-22,
-13,
-3,
14,
8,
24,
-3,
56,
4,
29,
17,
-14,
-39,
-17,
-21,
-16,
17,
-71,
39,
-5,
1,
-16,
10,
8,
25,
-7,
6,
-10,
23,
-25,
-5,
-14,
-87,
5,
-16,
25,
73,
25,
1,
-10,
58,
-6,
-24,
-6,
3,
-25,
-15,
29,
0,
-61,
-25,
25,
9,
25,
-32,
-8,
-2,
55,
4,
18,
22,
-26,
23,
-9,
2,
-7,
3,
-20,
24,
35,
35,
-40,
-23,
7,
-10,
-4,
-33,
-10,
44,
-25,
-9,
39,
1,
7,
-23,
21,
-5,
13,
15,
-22,
0,
-54,
-16,
50,
6,
5,
16,
4,
-4,
11,
-11,
3,
2,
-27,
13,
62,
0,
-27,
40,
-61,
8,
20,
-31,
5,
-12,
20,
-32,
-20,
-11,
30,
0,
28,
-4,
56,
15,
-8,
-7,
-21,
-9,
64,
19,
14,
30,
38,
-65,
-69,
-28,
16,
-22,
-15,
9,
-41,
-11,
7,
13,
-31,
25,
17,
-44,
-15,
-30,
39,
8,
20,
-53,
27,
-39,
45,
23,
-18,
13,
10,
-22,
9,
41,
-12,
-12,
-21,
-16,
-28,
-20,
-39,
-47,
-15,
-67,
4,
-11,
2,
-14,
12,
7,
-50,
0,
42,
-19,
25,
-8,
34,
19,
8,
-35,
-6,
-42,
-7,
43,
-45,
27,
-27,
21,
12,
-29,
-31,
-39,
30,
43,
-5,
-7,
40,
46,
-6,
10,
34,
42,
0,
-22,
18,
-2,
-27,
6,
-40,
30,
1,
-6,
15,
-6,
51,
6,
-24,
-23,
-22,
38,
-21,
46,
29,
-58,
38,
33,
-9,
-19,
-20,
35,
11,
6,
4,
-44,
0,
-29,
-5,
11,
-32,
6,
13,
11,
-35,
-29,
2,
-11,
20,
24,
10,
13,
12,
15,
-6,
-70,
1,
19,
25,
46,
-7,
-10,
35,
-21,
-5,
29,
-4,
7,
-21,
-32,
-21,
35,
27,
-24,
13,
-34,
-9,
-42,
24,
-12,
-78,
99,
25,
-3,
8,
45,
62,
-37,
43,
-11,
-41,
0,
20,
1,
8,
24,
-28,
-23,
-23,
-10,
-18,
-78,
0,
-24,
38,
-44,
9,
0,
-8,
26,
31,
39,
31,
8,
3,
38,
-6,
49,
-34,
7,
73,
-52,
19,
21,
4,
-31,
42,
0,
8,
-55,
-58,
29,
9,
-9,
1,
-24,
2,
-39,
-61,
63,
67,
-36,
41,
-50,
-48,
-50,
4,
-44,
-10,
-47,
-49,
43,
22,
-56,
0,
8,
-45,
-41,
-45,
-16,
-23,
-19,
78,
-50,
22,
-23,
19,
-33,
10,
-22,
-48,
-48,
41,
-49,
-4,
-21,
57,
54,
49,
3,
66,
43,
16,
-3,
-24,
8,
-66,
-54,
6,
31,
40,
-18,
5,
8,
20,
37,
-15,
-3,
-24,
14,
17,
14,
16,
4,
1,
-21,
-32,
-76,
-3,
-32,
6,
10,
37,
18,
-8,
-28,
45,
-18,
28,
21,
25,
-5,
-63,
22,
-13,
44,
-7,
-7,
16,
29,
5,
-14,
5,
40,
17,
2,
-42,
15,
-3,
9,
-21,
28,
-54,
30,
-11,
-18,
-29,
-41,
4,
41,
-16,
-22,
5,
44,
-20,
-47,
-65,
11,
10,
-13,
-4,
23,
49,
-17,
-4,
11,
24,
7,
-22,
-1,
54,
-8,
-12,
20,
-54,
-16,
17,
-46,
18,
-64,
-30,
1,
39,
39,
18,
-3,
9,
-5,
6,
5,
-5,
27,
-15,
32,
24,
6,
-30,
25,
-32,
25,
-31,
26,
6,
5,
-75,
39,
-21,
20,
-13,
18,
-34,
-10,
3,
-23,
-8,
-37,
25,
-19,
21,
-85,
2,
-9,
31,
-13,
-31,
-21,
-13,
-13,
-9,
73,
15,
45,
33,
28,
-31,
6,
17,
1,
-24,
1,
-21,
13,
22,
58,
-29,
-48,
2,
24,
15,
-43,
-39,
-17,
-45,
-42,
-13,
-1,
39,
21,
40,
23,
-40,
-23,
50,
19,
-5,
-59,
-60,
-43,
-28,
-21,
-15,
16,
45,
-27,
-22,
13,
-10,
-27,
-30,
51,
60,
13,
84,
-15,
60,
57,
31,
-2,
79,
66,
-10,
34,
13,
3,
19,
-1,
-86,
-47,
40,
-7,
12,
8,
26,
-2
] |
Per Curiam.
Following a jury trial, defendant was convicted of first-degree felony murder, MCL 750.316; MSA 28.548, and was sentenced to life imprisonment. Defendant appeals as of right.
We first consider whether the trial court erred in allowing testimony that defendant sold gold chains to a jewelry store shortly after the larceny and homicide and in permitting a witness to testify that defendant normally carried a knife. An employee of the Gold Chest Jewelry Store testified that on August 16, 1982, she purchased three gold chains from defendant. Another witness testified that three 14-carat gold chains were missing from the decedent’s home after the larceny and murder. Defense counsel objected to testimony of the employee of the jewelry store on the grounds that there was no evidence that the gold chains sold were the ones taken during the homicide and that the probative value of the evidence was outweighed by the prejudicial effect. The trial court overruled the objection.
The Michigan Rules of Evidence define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”. MRE 401. Relevant evidence is generally admissible; irrelevant evidence is not. MRE 402. Even if relevant, a trial court may, in the exercise of its discretion, exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, wasted time, or needless presentation of cumulative evidence. MRE 403. The trial court’s exercise of discretion will not be overturned unless there is a clear abuse of that discretion. People v Flanagan, 129 Mich App 786, 792-793; 342 NW2d 609 (1983). It is not within the province of this Court to second-guess the trial court’s decision. People v Phillips, 131 Mich App 486, 491-492; 346 NW2d 344 (1984).
Evidence that defendant sold three 14-carat gold chains to a jewelry store within hours after the murder is relevant since it has a tendency to implicate defendant in the crime. MRE 401. We recognize that the chains sold to the jewelers had been melted down, making it impossible to positively identify them. Evidence that defendant possessed goods that fit a general description of the goods stolen during a larceny is admissible. People v Roat, 117 Mich 578; 76 NW 91 (1898); People v Pitcher, 15 Mich 397 (1867). Considering that defendant sold the jeweler the same number of chains that had been taken during the incident and the chains were of the same quality, 14-carat gold, the trial court correctly found that any prejudicial effect of this evidence would not substantially outweigh its probative value. MRE 403. The fact that defendant made the sale hours after the murder lends strong probative value to this evidence. Defendant had every opportunity to rebut the implication of the evidence and, in fact, produced a witness to testify that he had given the gold chains to defendant to settle a debt. The trial court properly admitted the evidence.
We also find that the trial court properly admitted evidence regarding the defendant’s habit of carrying a knife. The victim was killed by stab wounds and the evidence indicated that the defendant normally carried a weapon which could have caused those wounds. Again, the record fails to show that the evidence’s probative value was substantially outweighed by the danger of unfair prejudice. While evidence that defendant carried a knife was to some extent prejudicial, the knife could have been used as the murder weapon and, therefore, was very relevant. The lower court did not abuse its discretion.
Defendant next argues that the trial court erred in instructing the jury that they could infer that defendant committed the larceny if they found that defendant was in definite and conscious possession of items taken during the larceny-murder. The instruction did not suggest to the jury that defendant was in possession of stolen property. On the contrary, the instruction informed the jury that it was up to them to determine beyond a reasonable doubt if defendant was in definite and conscious possession of the stolen property. This instruction is in accordance with the law since the possession of recently stolen property permits an inference that the possessor committed the theft. People v Helcher, 14 Mich App 386, 388; 165 NW2d 669 (1968). The trial court therefore did not err in instructing the jury pursuant to CJI 23:1:02.
We next consider whether the trial court erred in denying defendant’s motion for a new trial based on newly discovered evidence. On March 26, 1984, this Court granted defendant’s motion to remand to permit the defendant to make a motion for a new trial in the lower court. Defendant brought the motion alleging that newly discovered evidence justified a new trial. Specifically, defendant relied on a letter written by David Giroux, an inmate in a state prison, indicating that Timothy Guy Mann, who was referred to as T.J., confessed to killing the decedent and that defendant was not involved. The trial court denied defendant’s motion without prejudice, but granted a motion for analysis of a hair sample found in the victim’s hand. After the hair sample was analyzed, defendant brought another motion. The trial court again found that the letter written by David Giroux was an insufficient basis upon which to grant a new trial. The lower court found that the letter was hearsay and that defendant failed to show any corroboration of its contents.
A new trial will be granted because of newly discovered evidence only when there is a showing that the evidence is newly discovered, that the evidence is not merely cumulative, that the evidence is such as to render a different result probable on retrial, and that the defendant could not with reasonable diligence have produced it at trial. People v Jackson, 91 Mich App 636; 283 NW2d 648 (1979). The granting of a new trial is within the sound discretion of the trial court and this Court will not disturb that ruling in the absence of a clear abuse of discretion. Id.
The trial court properly found that Giroux’s letter regarding Timothy Mann’s alleged statement was hearsay and, therefore, this "newly” discovered evidence probably would not cause a different result on retrial. Defendant claims that the statement is not hearsay, relying on the declaration against interest exception to the hearsay rule. MRE 804(b)(3). Defendant, however, failed to establish Timothy Mann’s unavailability under MRE 804(a)(1). Also, while the statement is obviously against Mr. Mann’s interest, defendant has failed to show any corroborating circumstances that clearly indicate the trustworthiness of the statement. MRE 804(b)(3); United States v Satterfield, 572 F2d 687 (CA 9, 1978), cert den 439 US 840; 99 S Ct 128; 58 L Ed 2d 138 (1978). Not only is there a lack of corroborating evidence, Mr. Mann’s statement directly conflicts with defendant’s defense which denied any involvement in the crime. Mr. Mann’s statement clearly implicates defendant as being involved in at least an attempted larceny. The evidence therefore weakens defendant’s case and a different result on retrial would be highly unlikely. The lower court properly denied the motion for a new trial.
Defendant finally argues that the verdict was against the great weight of the evidence. We find that the trial court properly denied defendant’s motion for a new trial on the ground that the verdict was contrary to the great weight of the evidence. People v Harris, 133 Mich App 646, 653; 350 NW2d 305 (1984). The victim was stabbed to death during the robbery of his home on August 16, 1982. Two of defendant’s fingerprints were discovered inside the front door of the victim’s home. Defendant denied ever having been in the victim’s home. Two young males were seen leaving the victim’s home. One of them matched a general description of defendant. Shortly after the murder, defendant sold gold chains similar to those taken during the robbery. Defendant also denied knowing Timothy Mann, who allegedly was involved in the crime. Witnesses testified that defendant knew Timothy Mann and in fact defendant, at the motion for a new trial, argued for the admission of evidence which indicated that he knew Timothy Mann and was at least involved in the initial stages of the larceny. When arrested, defendant asked what would happen to someone who was present when the murder took place but did not actively participate in it. Defendant also indicated knowledge that the victim’s car was taken from the scene. This evidence, when viewed in a light most favorable to the prosecution, is sufficient to find defendant guilty of felony murder beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). The jury’s verdict was not against the great weight of the evidence and the trial court did not abuse its discretion in denying defendant’s motion for a new trial.
Affirmed. | [
17,
17,
13,
10,
-37,
-11,
-35,
10,
-11,
45,
8,
-44,
0,
-10,
10,
-9,
21,
0,
-10,
-37,
-14,
-7,
-31,
-2,
-24,
-35,
-10,
38,
-6,
27,
-17,
19,
32,
-49,
25,
18,
27,
25,
5,
27,
14,
-9,
51,
-25,
-53,
21,
44,
-39,
37,
-35,
37,
7,
-20,
6,
18,
10,
3,
-5,
34,
41,
26,
-10,
-25,
-45,
-9,
-13,
20,
9,
-46,
-35,
-31,
21,
-7,
7,
-3,
-37,
3,
40,
0,
19,
-23,
-11,
28,
12,
22,
13,
-63,
-26,
-26,
-3,
-5,
11,
-12,
-18,
-20,
-23,
47,
-53,
24,
-15,
-34,
-8,
-24,
-10,
-9,
46,
-45,
-29,
-36,
8,
12,
-5,
30,
-3,
0,
8,
-33,
-1,
16,
12,
4,
-7,
40,
-3,
27,
-23,
25,
-14,
25,
-14,
-47,
66,
4,
-5,
-1,
-3,
-27,
18,
-1,
-1,
0,
23,
37,
-1,
18,
15,
-20,
12,
6,
20,
-23,
10,
-16,
23,
16,
-33,
-30,
-55,
17,
-6,
-25,
14,
-29,
17,
-10,
-35,
18,
-36,
1,
-42,
-13,
27,
47,
22,
35,
-8,
-6,
-2,
3,
-3,
-10,
1,
11,
-2,
-2,
-24,
-43,
-37,
-16,
-17,
36,
1,
-16,
10,
10,
39,
7,
30,
25,
-15,
0,
-60,
21,
8,
12,
22,
-10,
-18,
-11,
-21,
-10,
-6,
-18,
0,
-28,
-29,
-40,
-2,
28,
-16,
-26,
-25,
21,
-40,
21,
0,
18,
11,
7,
-16,
19,
31,
36,
-58,
0,
27,
7,
-2,
15,
-1,
-4,
-44,
26,
-24,
-24,
2,
27,
15,
-3,
-7,
0,
-11,
4,
38,
-45,
-28,
21,
4,
-30,
7,
-14,
65,
-9,
65,
-16,
36,
21,
36,
-90,
26,
-12,
-16,
39,
12,
0,
-24,
-40,
28,
31,
15,
18,
22,
-9,
-32,
-19,
-4,
-79,
66,
20,
46,
14,
19,
-50,
-9,
46,
37,
10,
-45,
9,
-19,
38,
49,
10,
-5,
-17,
33,
12,
52,
-5,
0,
29,
38,
2,
28,
21,
25,
-9,
-37,
73,
-10,
-27,
-21,
-26,
-58,
56,
-33,
3,
-54,
30,
-17,
-13,
-5,
24,
-29,
-15,
-21,
3,
-24,
32,
27,
15,
-33,
10,
-11,
-9,
-4,
7,
26,
-38,
-34,
35,
28,
32,
37,
35,
-53,
16,
-5,
17,
11,
-9,
-8,
7,
18,
-16,
7,
-14,
-38,
16,
49,
23,
-61,
-28,
10,
-28,
0,
29,
-16,
33,
22,
-21,
21,
41,
-2,
-30,
34,
22,
2,
-19,
21,
-27,
-3,
16,
-52,
-17,
-6,
-46,
10,
16,
-18,
-58,
37,
31,
-5,
-64,
-29,
-9,
0,
-10,
21,
-13,
20,
-9,
25,
-21,
-33,
38,
-29,
11,
-35,
62,
25,
7,
19,
0,
-9,
-25,
35,
-5,
-8,
-5,
35,
18,
-29,
3,
21,
-34,
22,
34,
7,
-31,
-19,
-14,
-13,
7,
30,
-25,
-13,
22,
-21,
-14,
12,
-15,
-45,
-12,
51,
-7,
-27,
16,
-16,
51,
-30,
-1,
-3,
28,
10,
-41,
-60,
42,
-17,
42,
-5,
17,
16,
-38,
28,
-4,
32,
29,
7,
57,
44,
-14,
19,
8,
-5,
-62,
-32,
-18,
14,
-29,
-25,
-28,
2,
-44,
17,
-1,
-9,
27,
1,
-22,
-44,
-17,
38,
10,
15,
16,
-30,
25,
7,
7,
13,
-16,
-6,
5,
-9,
11,
-16,
-11,
29,
35,
-56,
-6,
65,
-20,
0,
-20,
-7,
-9,
5,
6,
41,
-4,
-1,
84,
8,
-19,
-36,
-38,
25,
-15,
45,
-23,
41,
-16,
-26,
-14,
-35,
30,
12,
24,
1,
0,
-27,
-9,
-2,
3,
34,
-29,
-45,
-70,
38,
5,
37,
49,
-55,
-4,
-10,
60,
-50,
-20,
10,
-5,
8,
-20,
29,
5,
50,
-34,
27,
5,
37,
-52,
-9,
-30,
19,
58,
24,
-4,
-2,
-32,
2,
56,
-15,
-38,
-24,
-92,
-72,
11,
9,
64,
-26,
-36,
-7,
25,
-43,
-29,
21,
23,
-15,
65,
-3,
-51,
-15,
-39,
8,
-11,
-45,
-55,
62,
26,
7,
-3,
25,
-28,
66,
-35,
-3,
-5,
8,
19,
-23,
34,
-24,
-32,
38,
-8,
12,
-71,
-115,
-11,
52,
23,
-25,
6,
-11,
2,
26,
-5,
-27,
-17,
40,
16,
-16,
17,
44,
-5,
13,
1,
-50,
16,
11,
-52,
-41,
20,
51,
-31,
5,
20,
-35,
-17,
-6,
-20,
-22,
-11,
15,
-49,
-39,
45,
-22,
-36,
-51,
2,
-42,
-18,
-3,
-15,
-23,
13,
-24,
-33,
53,
23,
8,
26,
-39,
22,
25,
-13,
-25,
3,
38,
-23,
16,
3,
-3,
22,
-59,
-21,
0,
-51,
2,
-23,
11,
-30,
-11,
-32,
19,
-13,
-17,
-19,
-18,
55,
-21,
8,
-14,
39,
40,
53,
47,
36,
-19,
-4,
7,
1,
12,
-9,
9,
-40,
1,
-30,
-7,
10,
-44,
-21,
8,
81,
-48,
16,
-2,
31,
95,
10,
11,
-57,
0,
49,
-14,
-28,
-46,
9,
16,
-70,
-18,
0,
-51,
0,
-42,
-27,
2,
-50,
-54,
39,
32,
-37,
46,
-32,
23,
72,
-17,
12,
40,
0,
37,
18,
-13,
-33,
-19,
-13,
26,
-18,
0,
-44,
40,
24,
-17,
11,
8,
37,
0,
51,
11,
35,
7,
7,
29,
18,
7,
-33,
16,
43,
18,
-41,
-7,
6,
10,
-11,
-45,
0,
-17,
1,
-9,
-25,
-51,
-18,
9,
43,
-29,
-2,
19,
36,
6,
-18,
10,
11,
16,
-9,
23,
-7,
-28,
43,
27,
10,
41,
18,
28,
32,
-12,
0,
30,
0,
22,
-4,
-30,
6,
0,
-23,
38,
10,
-8,
31,
50,
-20,
-24,
3,
38,
-15,
19,
18,
15,
6,
30,
19,
24,
31,
51,
-36,
25,
-57,
31,
7,
-25,
21,
29,
4,
-33,
23,
19,
-33,
-16,
-3,
21,
0,
-35,
-30,
-19,
50,
-40,
7,
-22,
-5,
-26,
-40,
52,
39,
-12,
1,
8,
-18,
6,
-14,
-20,
37,
32,
20,
15,
-4,
34,
34,
2,
-12,
45,
23,
9,
32,
-33,
-7,
-23,
-60,
0,
-48,
28,
-1,
-38,
26,
-23,
-3,
-31,
0,
23,
-32,
-16,
-21,
34,
-13,
2,
-21,
37,
12,
-28,
-8,
-4,
-26,
21,
-33,
10,
19,
-36,
-34,
-27,
-32,
44,
27,
0,
59,
46,
-9,
-26,
37,
19,
-26,
-54,
7,
-74,
29,
-64,
50,
15,
-10,
2,
14,
-13,
-34,
-35,
73,
-28,
3,
-2,
-35,
-9,
9,
-63,
19,
-11,
-43,
4,
17,
-9,
-32,
-8,
-42,
23,
18,
43,
17,
-7,
22,
-22,
-45,
-17,
-24,
-16,
11,
-15,
-13,
18,
-17,
-3,
-23,
-12,
-25,
45,
9,
54
] |
Per Curiam.
Appellant, Quality Clinical Laboratories, Inc., appeals from a judgment rendered in the Wayne County Circuit Court affirming a decision of appellee, Michigan Department of Social Services, that required appellant to reimburse the DSS for over $63,000 in medicaid overpayments already made to the lab.
Appellant lab is an independent provider of medical services to medicaid recipients. It provides services to those individuals at the request of their physicians and then files claims for reimbursement with the DSS. The administrative hearing in this case resulted when the DSS determined, after an audit, that it had overpaid the lab during the years 1973 through 1975. The DSS claimed that the lab owed it for overpayments which fell into some 14 categories. The case was fully heard by an administrative law examiner, who made findings of law and fact leading to his conclusion that appellant need reimburse appellee DSS for over $63,000.
On appeal, appellant raises two issues. First, appellant claims that the decision of the administrative law examiner was not supported by competent, material and substantial evidence on the whole record, as required under MCL 24.306(l)(d); MSA 3.560(206)(l)(d).
The substantial evidence test applies to review of social services cases; that test requires evidence which a reasoning mind would accept as sufficient to support a conclusion and consisting of more than a mere scintilla of evidence, though it may be somewhat less than a preponderance of the evidence. Thus, on appeal we examine the whole record before deciding, but our examination avoids invasion of the agency’s fact-finding province, while affording meaningful review of the administrative decision. Review of this record reveals that far more than a scintilla of evidence acceptable to reasoning minds was produced. The trial court’s decision was fully supported by the evidence.
Second, appellant argues that the DSS determination of the refund was arbitrary and capricious. This claim is directed at the DSS sampling procedures used to calculate the refund amount in this case. The lab claims that the statistical extrapolation formula used by the DSS had no rational and supportable basis. The lab claims that the sampling technique was not accurate. The audit consisted of taking a random sample of the claims made by plaintiff for 150 recipients of laboratory services for the period audited. The amount of overpayment was arrived at by determining the percentage of overpayment in the sample of 150 files (error rate) times the total dollars paid the appellant for all services during that period from January 1, 1973, through December 31, 1975. The department listed 14 separate categories as the basis for considering certain claims to be erroneous. They were as follows:
"1. Missing: No documentation to verify that recipient had services performed on that date.
"2. No Results: Either no values printed across from test name or no test at all.
“3. No Request: Either referring physician request does not indicate request or profile ordered does not include such testing.
"4. Culture Only: Either lab or physician documentation confirms non-performance of sensitivity testing or; culture results indicate non-performance of sensitivity.
"5. Included in 8891: Culture count is billed through both codes 8888 and 8891 resulting in a duplicate payment.
"6. Normal Flora Sensitivity: Sensitivity performed on non-pathogenic growth and therefore not reimbursable.
"7. Hemoglobin Coding Error: Hemoglobin Electrophoresis billed while only simple Hemoglobin test performed.
"8. 8224 Results: T7 test billed but PBI performed.
"9. 8508 Results: Australian Antigen test performed but Immuno Electrophoresis billed.
"10. Derived from T3 , T4: Values for this test are obtained by a simple calculation of T3, T4 values and is therefore not reimbursable.
"11. Chiropractic Referrals: Testing referred to laboratory by chiropractor.
"12. Credit to Provider: Provider not correctly reim bursed as a result of Optical Character Reader (OCR) error. Refund amount is expressed negatively.
"13. 8305 Overlap: Values found in 8307, Total Protein and A/G Ratio, are present in 8305, Protein Electrophoresis, and thus is not reimbursable.
"14. Included in 8297: Values for codes 8112, Cholesterol, and 8340, Triglycerides, are present in code 8297, Lipoprotein Electrophoresis and Phenotyping.”
While the initial amount of overpayment indicated by the audit was established at $104,093.45, as a result of meetings and a preliminary conference that amount was reduced to $68,195.42. The trial court responded to this claim as follows:
"Thus, the recognition of statistical methods by the courts of several jurisdictions lends support to the statistical results of the department’s audit. Had the department desired an actual reimbursement figure, rather than a calculated one, it would have had to peruse through thousands of files. This method has been found to be ineffective due to its time-consuming nature. In answer to appellant’s argument that this sampling method is invalid, this court does not find that the statistical survey was self-serving or improper.”
In Illinois Physicians Union v Miller, a federal court has decided this precise issue. The court in that case determined that the use by the Illinois Department of Public Aid of a sampling extrapolation formula for determining overpayments to physicians under the medicaid program was not arbitrary, capricious, or invidiously discriminatory, where there was opportunity to rebut the initial determination of overpayment.
Our review leads us to conclude that no error was created by the use of the statistical extrapolation formula in this case.
Affirmed.
Russo v Dep’t of Licensing & Regulation, 119 Mich App 624, 631; 326 NW2d 583 (1982); Tompkins v Dep’t of Social Services, 97 Mich App 218, 222; 293 NW2d 771 (1980); Soto v Director of the Michigan Dep’t of Social Services, 73 Mich App 263, 271; 251 NW2d 292 (1977).
Freiberg v Big Bay De Noc School Dist, 91 Mich App 462, 468; 283 NW2d 775 (1979), lv den 407 Mich 964 (1980).
675 F2d 151, 156 (CA 7, 1982). | [
4,
-9,
15,
-1,
-8,
-12,
-18,
-45,
-18,
56,
-13,
-41,
45,
71,
7,
-2,
8,
38,
34,
-22,
-18,
10,
-26,
20,
-51,
18,
24,
-4,
35,
6,
0,
-20,
12,
-47,
-14,
24,
76,
39,
0,
-9,
-44,
-41,
-8,
-65,
-34,
11,
17,
23,
34,
37,
-12,
28,
-36,
-20,
15,
37,
3,
-23,
-16,
-40,
7,
7,
21,
-7,
45,
30,
-47,
1,
-18,
-42,
16,
30,
26,
-38,
17,
-38,
25,
5,
-17,
38,
18,
-15,
28,
50,
26,
-8,
54,
2,
32,
4,
14,
-23,
-6,
-13,
-54,
31,
40,
-55,
73,
-11,
-65,
26,
-10,
67,
-35,
23,
39,
-35,
-19,
-10,
49,
15,
0,
-8,
-36,
28,
-3,
19,
14,
-31,
-6,
26,
18,
-60,
-19,
17,
80,
0,
-32,
-4,
7,
5,
-32,
0,
25,
-51,
29,
-43,
47,
-6,
-13,
42,
-28,
-16,
-1,
3,
0,
-24,
18,
-10,
-19,
-53,
20,
11,
6,
-9,
-3,
-35,
10,
-79,
-11,
7,
-82,
-14,
-24,
-1,
27,
19,
36,
-4,
51,
-7,
-5,
-3,
14,
19,
25,
14,
5,
-12,
-65,
-11,
26,
-33,
0,
8,
21,
-60,
14,
-13,
-8,
32,
-26,
0,
-24,
24,
52,
52,
-10,
-32,
-6,
-12,
17,
-15,
-8,
53,
10,
-70,
-24,
17,
36,
28,
30,
-21,
-16,
-56,
-44,
-19,
-10,
45,
-7,
-24,
17,
-10,
-9,
7,
-48,
20,
-8,
-61,
9,
72,
-22,
19,
0,
12,
17,
21,
-20,
-16,
-36,
11,
-28,
-23,
-60,
21,
-14,
7,
-7,
17,
-38,
29,
-10,
14,
-41,
-88,
-4,
9,
-8,
-1,
-21,
50,
-27,
-22,
2,
40,
-11,
31,
3,
11,
-49,
14,
-12,
-43,
40,
-30,
-17,
-46,
11,
40,
-12,
-24,
14,
8,
-3,
31,
-1,
31,
21,
35,
55,
-15,
-4,
-2,
68,
-38,
31,
-6,
7,
27,
-38,
19,
24,
-20,
-33,
7,
20,
74,
-40,
0,
21,
6,
-2,
-15,
45,
-57,
-71,
-100,
48,
-11,
-52,
40,
-23,
16,
19,
0,
-3,
-80,
-44,
-50,
-45,
16,
43,
15,
43,
-19,
-82,
-26,
-27,
-10,
11,
73,
2,
19,
19,
-1,
-28,
-18,
18,
19,
25,
43,
20,
67,
31,
47,
-6,
-43,
0,
26,
-14,
-8,
-16,
-3,
-29,
7,
-1,
-15,
-22,
3,
-36,
-54,
-2,
5,
27,
-34,
-3,
-30,
60,
-15,
-54,
-16,
-29,
31,
-12,
-23,
30,
33,
-24,
-22,
-11,
13,
6,
42,
-17,
0,
-11,
32,
-27,
-3,
17,
-7,
50,
23,
48,
12,
27,
-68,
-21,
19,
-18,
-2,
-25,
2,
-58,
-5,
44,
-24,
-9,
-39,
59,
53,
-39,
-21,
10,
-29,
-12,
5,
-16,
47,
-55,
-69,
-5,
-30,
-1,
-5,
-21,
-45,
-4,
0,
-50,
-7,
-39,
-20,
18,
-21,
36,
-2,
18,
-32,
11,
-61,
5,
-15,
18,
39,
-1,
-60,
10,
-9,
16,
10,
21,
-19,
19,
21,
5,
4,
42,
-14,
-22,
17,
15,
23,
-6,
-6,
-40,
9,
2,
12,
26,
-21,
-17,
10,
-10,
53,
-47,
-19,
-81,
41,
4,
10,
-63,
8,
13,
40,
-12,
-7,
-23,
35,
-36,
-37,
3,
-39,
44,
-86,
12,
14,
-6,
-45,
-10,
28,
11,
31,
-37,
9,
21,
-11,
0,
25,
-4,
26,
-65,
-20,
1,
9,
-2,
-3,
36,
37,
40,
14,
38,
-19,
-35,
4,
34,
39,
14,
-9,
-11,
30,
-12,
51,
-1,
3,
33,
11,
-3,
-3,
26,
13,
1,
50,
-25,
-65,
34,
0,
26,
-30,
-53,
-46,
17,
-9,
15,
-25,
-7,
-1,
38,
-29,
5,
58,
21,
-32,
49,
4,
8,
15,
-34,
-22,
0,
26,
64,
-46,
-1,
-1,
63,
-5,
46,
-30,
14,
-16,
-12,
-36,
-48,
-15,
-26,
-27,
45,
-18,
6,
2,
-23,
9,
-27,
10,
-24,
8,
3,
-54,
47,
-18,
16,
-65,
-46,
-16,
-12,
8,
16,
8,
14,
-15,
22,
8,
-17,
35,
12,
-18,
-31,
-45,
12,
-39,
17,
-6,
-1,
-15,
4,
-19,
-69,
38,
-10,
39,
18,
15,
-24,
-16,
-14,
-32,
-37,
-40,
46,
77,
33,
36,
-27,
28,
52,
-42,
-3,
-18,
6,
32,
-3,
26,
-1,
40,
52,
-6,
17,
-22,
-38,
5,
0,
25,
52,
-51,
32,
-21,
-18,
-19,
-62,
26,
-8,
30,
4,
40,
1,
3,
15,
-32,
-20,
55,
13,
-21,
55,
-59,
17,
8,
0,
6,
-13,
20,
-89,
26,
-4,
22,
2,
22,
-14,
-4,
25,
-2,
40,
-44,
-11,
-27,
6,
79,
3,
-12,
-4,
-41,
4,
32,
41,
-13,
30,
-13,
-1,
-44,
-18,
12,
-3,
31,
-54,
38,
8,
3,
-38,
0,
32,
43,
17,
-3,
-48,
-7,
28,
36,
-40,
37,
3,
-19,
16,
-6,
-57,
15,
-13,
9,
21,
22,
-12,
38,
-41,
13,
-4,
14,
13,
2,
27,
31,
-29,
34,
10,
-53,
7,
3,
-18,
-42,
-10,
-31,
59,
41,
-28,
38,
-22,
-92,
-37,
-14,
-51,
12,
-34,
-39,
52,
-38,
36,
35,
7,
-16,
-36,
-39,
19,
22,
9,
19,
-34,
41,
-22,
-31,
-6,
9,
7,
11,
28,
-11,
22,
-10,
0,
-4,
-66,
9,
71,
50,
-26,
45,
-21,
26,
5,
7,
-39,
7,
16,
19,
11,
-14,
9,
31,
-3,
21,
15,
39,
-36,
6,
-5,
43,
-6,
29,
-59,
-3,
-6,
0,
-7,
-4,
24,
17,
50,
2,
21,
-5,
17,
33,
27,
58,
-14,
5,
6,
88,
7,
-1,
22,
-2,
-8,
21,
-21,
-12,
-15,
6,
0,
5,
25,
-32,
13,
-32,
-47,
0,
26,
-21,
37,
-24,
1,
3,
1,
-33,
-5,
-2,
-9,
-32,
4,
2,
31,
8,
18,
5,
14,
-7,
9,
13,
24,
-8,
-67,
-24,
-40,
5,
15,
-18,
-6,
2,
13,
-5,
20,
9,
-20,
30,
10,
-7,
11,
-40,
8,
-1,
-53,
14,
8,
47,
-12,
73,
0,
-17,
-13,
-43,
32,
-3,
-8,
-6,
-46,
10,
-11,
19,
-83,
-4,
-13,
-37,
20,
-36,
1,
33,
-68,
25,
11,
15,
-50,
2,
-27,
-14,
-3,
56,
0,
42,
-21,
27,
-18,
65,
-10,
-20,
-7,
-96,
0,
-33,
-28,
-10,
-14,
33,
3,
-25,
-76,
-8,
-43,
0,
-25,
-11,
-10,
21,
36,
31,
40,
0,
-28,
-14,
-7,
14,
28,
20,
41,
-56,
-9,
11,
18,
-42,
30,
-27,
-50,
19,
24,
31,
0,
-35,
0,
-21,
23,
-6,
-18,
-5,
-4,
21,
31,
43
] |
T. Gillespie, J.
This appeal is from an order of superintending control in which the Circuit Court for Ingham County reversed an administrative order of the Michigan Liquor Control Commission which had found Aerie No. 3677, Fraternal Order of Eagles, in Sanford, Michigan, in violation of MCL 750.303; MSA 28.535 and 1980 AACS R 436.1013 concerning gaming.
The order of the circuit court is affirmed.
The Fraternal Order of Eagles, Aerie No. 3677, in Sanford, Michigan, is the holder of a club license issued by the Michigan Liquor Control Commission. This license was issued pursuant to MCL 436.24(c); MSA 18.995(c).
As a permit holder, it is subject to regulation under 1980 AACS R 436.1013, which provides:
"(1) A licensee shall not allow unlawful gambling on the licensed premises.
"(2) A licensee shall not allow any gambling devices on the licensed premises which are prohibited by the statutes of this state.”
The permit holder would also be bound under the applicable gaming statute which is MCL 750.303; MSA 28.535 and reads in part:
"(1) A person who for hire, gain, or reward, keeps or maintains a gaming room, gaming table, game of skill or chance, or game partly of skill and partly of chance, used for gaming, or who permits a gaming room, or gaming table, or game to be kept, maintained, or played on premises occupied or controlled by the person, is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00. A person who aids, assists, or abets in the keeping or maintaining of a gaming room, gaming table, or game, is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00.
"(2) This section shall not apply to a mechanical amusement device which may through the application of an element of skill reward the player with the right to replay the mechanical device at no additional cost if the mechanical amusement device is not allowed to accumulate more than 15 replays at 1 time; the device is designed so that accumulated free replays may only be discharged by reactivating the device for 1 additional play for each accumulated free replay; and the device makes no permanent record directly or indirectly of the free replays awarded.”
Early in 1982, officers of the Michigan Liquor Control Commission became aware that the Sanford Eagles Club had a "draw poker” video machine in the club. This machine has five windows. When twenty-five cents is inserted in the machine, a playing card appears in each window. Below each window is a button. If a player is dissatisfied with the card first appearing in a window, he may press the button under that card and the first card will disappear and be replaced by another card.
The machine has two counters on the inside, one which keeps track of the number of quarters placed into the machine and the other which keeps track of the number of free replays erased off the machine without playing them. The device also has a key mechanism which can erase free replays without the replays being played.
Once a satisfactory hand is established, the game is played as five-card draw poker. When certain hands are obtained, credits are given which entitle the player to free plays.
On March 30, 1982, the local inspector ■ for the MLCC, Robert Basket, and his supervisor, Donald French, went to the Sanford Eagles Club and played the machine. Supervisor French won 54 free games on that date.
The officers asked the bartender, Lydia Oswald, if the games could be traded for cash. She informed them that the Eagles did not pay off in cash but only in free replays.
On May 25, 1982, the same Liquor Control Commission officers returned to the club and played the machine. After this the officers confiscated the machine as a gambling device and issued a complaint with the Michigan Liquor Control Commission against the Sanford Eagles Club. A hearing was held before Hearing Commissioner Andrew Metcalf, Jr., who rendered an opinion on December 1, 1982, finding the machine to be a game "partly of skill and partly of chance” and an unlawful gambling device under MCL 750.303(1) and 1980 AACS R 436.1013(2). Commissioner Met-calf also ruled that Automatic Music and Vending Corporation could not intervene in the hearing as it was not an involved party. The commissioner ordered a fine of $250 and costs. He did not confiscate the machine.
Commissioner Metcalfs decision was upheld by the commission on appeal in January, 1983.
Automatic Music then applied to the circuit court for Ingham County for an order of superintending control to review the actions of the commission. Judge Robert Holmes Bell, in a terse order, reversed the commission and found that free replays do not constitute a reward and are not gaming as defined by MCL 750.303; MSA 28.535.
The commission appealed to this Court.
Four issues are raised:
I. Whether Automatic Music may petition the circuit court for an order of superintending control.
II. Whether a "draw poker” video game is a gaming device within the meaning of MCL 750.303(1); MSA 28.535(1).
III. Whether the statute unconstitutionally denies equal protection of the United States and Michigan Constitutions.
IV. Whether MCL 750.303; MSA 28.535 is unconstitutionally vague.
I
May Automatic Music petition the circuit court for superintending control?
We conclude that Automatic Music, while not directly a party to the dispute, was aggrieved by the action of the commission and should be allowed to intervene under GCR 1963, 711.2.
It is well settled that an order of superintending control does not supersede the use of normal appellate procedures. Detroit v Recorder’s Court Judge, 104 Mich App 214, 222; 304 NW2d 829 (1981); GCR 1963, 711. See, also, Beer v Fraser Civil Service Comm, 127 Mich App 239, 242; 338 NW2d 197 (1983).
Automatic Music was not a party to the commission’s administrative proceedings and did not have a right of appeal. However, it was that company’s machine that was confiscated and, therefore, it was aggrieved in this action and superintending control should be available to it. Kassab v Acho, 125 Mich App 442, 451; 336 NW2d 816 (1983). Further, the decision in this case will affect its total business with like machines. Superintending control is a proper remedy when general policies of an inferior tribunal are being reviewed. Detroit v Recorder’s Court Judge, supra.
We conclude that it was proper to allow Automatic Music to intervene.
II
Is a "draw poker” video game a gaming device?
MCL 750.301-750.315; MSA 28.533-28.547 is part of a statutory scheme governing gambling. The purpose of the statutory scheme is to suppress gambling, an activity determined to be "injurious to the morals and welfare of the people”. Michigan ex rel Comm’r of State Police v Nine Money Fall Games, 130 Mich App 414, 419; 343 NW2d 576 (1983), citing Parkes v Judge of Recorder’s Court, 236 Mich 460, 465-466; 210 NW 492 (1926). Under this particular section, it is not necessary to determine whether the game under consideration is one of skill or of chance because the statute makes no distinction as to either kind of game. Michigan ex rel Comm’r of State Police v One Helix Game, 122 Mich App 148, 156; 333 NW2d 24 (1982), citing Henry v Kuney, 280 Mich 188, 192; 273 NW 442 (1937). Gambling occurs whenever there is a chance for profit if the player of the game is skillful and lucky.
The question to be resolved in this case is whether free plays are "reward”, "profit”, or a "thing of value”. The circuit judge decided that the right to free play is not a "reward”. In so doing, he acknowledged: "The Court is not unmindful of a couple of antiquated Supreme Court decisions, dealing with different machines, under different circumstances, at a different time culturally in our nation.”
MCL 750.303(2); MSA 28.535(2) was passed in 1975 and provides in part:
"(2) This section shall not apply to a mechanical amusement device which may through the application of an element of skill reward the player with the right to replay the mechanical device at no additional cost * * * >>
This language clearly appears to be a response of the Legislature to Oatman v Port Huron Chief of Police, 310 Mich 57; 16 NW2d 665 (1944), of which the Legislature is presumed to have been aware.
While both the commission and Automatic Music agree that the "draw poker” video game allows more than 15 replays as provided in that section, it is clear that the Legislature by the enactment of § 303(2) intended to legalize machines which are games having an element of skill and where the "reward” is limited to free games and does not include pecuniary or merchandise rewards.
This was recognized by another panel of this Court in People v Palazzolo, 62 Mich App 140; 233 NW2d 216 (1975).
Ill
Does MCL 750.303(2); MSA 28.535(2) deny equal protection of the laws under the United States and Michigan Constitutions and is it void for vagueness?
The purpose of the statute is to suppress gambling, an activity "injurious to the morals and welfare of the people”. Michigan ex rel Comm’r of State Police v Nine Money Fall Games, supra, p 419.
In the present case, we are not dealing with a suspect class or a fundamental personal right and the test is whether the legislation bears a reasonable relationship between the statutory classification and the public purpose in enacting the statute. Shavers v Attorney General, 402 Mich 554, 612-614; 267 NW2d 72 (1978).
Automatic Music urges that by allowing machines with 15 or less replays to be exempt and by denominating this game, a game of mixed skill and chance, a per se gambling device while treating other games of skill and chance as legal is a denial of equal protection.
It is clear that the Legislature by the passage of subsection 303(2) clearly amended the then law of Michigan by legalizing those machines which require an element of skill. The difficulty lies in the balance of the section which reads:
"* * * if the mechanical amusement device is not allowed to accumulate more than 15 replays at 1 time; the device is designed so that accumulated free replays may only be discharged by reactivating the device for 1 additional play for each accumulated free replay; and the device makes no permanent record directly or indirectly of the free replays awarded.”
This panel finds this subsection vague and arbitrary as did the Palazzolo panel. We are unable to fathom what the Legislature meant by 15 games. What is meant by one replay? What is the purpose of prohibiting a "knock off” button or making recordation of free games illegal? Why is 15 free games legal and 16 free games illegal?
These are all questions which in our opinion make this portion of the act unconstitutional.
In People v Austin, 301 Mich 456, 463; 3 NW2d 841 (1942), the Court said:
" '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ Connally v General Construction Co, 269 US 385, 391; 46 S Ct 126; 70 L Ed 322 (1926).”
We therefore hold that MCL 750.303(2); MSA 28.535(2) is applicable to this case and is constitutional insofar as it legalizes mechanical amusement devices which through the application of an element of skill reward the player with the right to replay the mechanical device at no additional cost.
The balance of that subsection we find to be arbitrary and vague and, therefore, unconstitutional.
We affirm the circuit court.
D. E. Holbrook, Jr., P.J., concurred. | [
6,
20,
19,
20,
0,
5,
-23,
42,
-64,
26,
5,
37,
0,
-3,
41,
-32,
1,
17,
-78,
23,
15,
14,
3,
-18,
-15,
28,
30,
45,
4,
-5,
-20,
-75,
34,
22,
6,
16,
5,
28,
-6,
1,
19,
-13,
-10,
-9,
-54,
-39,
23,
-61,
38,
-22,
-5,
11,
-35,
20,
-68,
22,
2,
-21,
3,
41,
-13,
37,
-5,
24,
71,
-14,
-59,
-16,
22,
-18,
38,
9,
-54,
11,
-5,
-1,
-16,
-6,
-27,
25,
-69,
21,
-6,
-51,
-9,
39,
52,
3,
14,
-75,
-12,
1,
-16,
0,
2,
10,
25,
-1,
29,
-61,
-32,
-25,
-23,
12,
13,
9,
59,
19,
-9,
-29,
7,
-47,
7,
-10,
48,
1,
-38,
74,
3,
14,
-2,
16,
30,
5,
-8,
-30,
76,
-68,
-85,
-4,
25,
-14,
-25,
-7,
-67,
40,
11,
36,
-7,
-28,
34,
23,
35,
19,
29,
-78,
-6,
32,
-11,
-35,
-24,
-22,
27,
84,
-12,
-3,
-56,
43,
32,
10,
-58,
-29,
-17,
-14,
53,
-69,
53,
-18,
23,
6,
48,
1,
22,
-17,
8,
10,
18,
6,
-28,
0,
-69,
77,
2,
-23,
18,
-42,
3,
-92,
-27,
-58,
25,
-41,
14,
50,
10,
10,
21,
56,
-24,
-12,
-1,
-32,
25,
0,
42,
-38,
0,
19,
-94,
-5,
-35,
6,
-30,
14,
-15,
10,
-15,
37,
41,
-23,
-3,
-13,
43,
32,
-67,
-86,
3,
8,
0,
-18,
0,
2,
90,
28,
-31,
-26,
-44,
-16,
33,
36,
-15,
31,
-51,
0,
12,
-19,
0,
-20,
-17,
-26,
42,
-9,
-37,
-23,
-58,
-14,
28,
-10,
-19,
10,
-5,
-54,
-29,
2,
-18,
23,
-18,
-28,
-47,
-14,
48,
-4,
14,
11,
-32,
-33,
46,
33,
51,
8,
13,
10,
-1,
24,
-25,
42,
-46,
-25,
-11,
-34,
-1,
38,
-19,
18,
52,
-66,
14,
-35,
24,
6,
-9,
53,
18,
50,
10,
-14,
3,
-37,
-20,
0,
-33,
-32,
-27,
8,
-6,
-60,
1,
-2,
27,
-3,
26,
-38,
-14,
31,
-46,
-36,
48,
-23,
63,
20,
6,
1,
-22,
41,
-37,
17,
87,
-66,
26,
-1,
0,
-34,
27,
-7,
18,
16,
10,
4,
-44,
-68,
-70,
33,
7,
15,
38,
-8,
2,
-13,
-20,
57,
31,
-29,
-48,
19,
29,
13,
11,
82,
59,
64,
-12,
-28,
20,
34,
10,
20,
-9,
-33,
6,
1,
29,
6,
20,
-36,
-11,
-41,
4,
-51,
-33,
9,
-3,
-14,
-40,
-7,
-5,
17,
28,
43,
42,
-34,
47,
-5,
-19,
45,
-12,
-2,
30,
26,
19,
-11,
-91,
33,
-40,
-1,
4,
48,
-21,
9,
-40,
-40,
14,
20,
-46,
-10,
35,
-82,
-66,
-6,
-24,
63,
-1,
40,
-19,
-11,
-45,
-14,
-19,
12,
-3,
1,
-16,
-40,
-17,
-41,
3,
-40,
-24,
-6,
10,
-35,
82,
27,
-21,
-9,
-18,
28,
-28,
48,
-82,
-29,
18,
-29,
-34,
7,
13,
22,
-89,
14,
1,
3,
-73,
51,
16,
26,
-26,
-28,
87,
-1,
0,
-3,
46,
53,
8,
-6,
-16,
-75,
-1,
47,
9,
33,
-2,
-2,
-23,
13,
5,
32,
-4,
67,
7,
57,
-28,
-8,
26,
2,
-4,
-13,
-32,
-20,
-1,
0,
-27,
27,
31,
61,
9,
24,
59,
-70,
6,
5,
-14,
-21,
-39,
26,
6,
2,
-35,
9,
17,
-24,
12,
26,
13,
-63,
10,
-37,
28,
-9,
-50,
9,
38,
-25,
3,
80,
7,
10,
-2,
-88,
72,
-4,
-12,
69,
-20,
7,
-20,
-7,
-41,
31,
-37,
7,
-55,
41,
-5,
-23,
40,
-15,
-46,
26,
25,
-1,
45,
28,
55,
24,
-7,
-38,
40,
-44,
-9,
25,
27,
19,
28,
17,
36,
32,
-20,
19,
-43,
-25,
-10,
6,
6,
52,
5,
60,
21,
15,
1,
-30,
-15,
-5,
-24,
22,
-5,
-49,
1,
11,
22,
-3,
12,
-3,
-14,
-18,
-26,
63,
30,
-42,
22,
24,
55,
-17,
-15,
-19,
21,
27,
35,
-6,
28,
3,
-37,
6,
34,
-20,
7,
-6,
-18,
17,
-48,
10,
-18,
36,
6,
-33,
25,
35,
0,
38,
-21,
89,
30,
40,
-6,
-8,
-19,
-25,
-61,
15,
21,
-35,
-7,
19,
-5,
59,
1,
-25,
-2,
38,
73,
18,
-21,
22,
4,
-44,
23,
25,
-50,
10,
22,
22,
-52,
-8,
6,
-45,
38,
45,
-32,
12,
27,
-27,
-29,
31,
2,
-20,
24,
27,
-59,
8,
-52,
-56,
-4,
47,
10,
26,
-36,
-4,
-4,
-55,
7,
22,
-69,
30,
70,
15,
0,
22,
-17,
-17,
-53,
-21,
-20,
-26,
-52,
-1,
51,
16,
-30,
-5,
23,
-14,
-23,
-37,
-3,
-4,
38,
35,
-39,
-5,
-21,
66,
-28,
-36,
-23,
-22,
-42,
-33,
39,
25,
18,
-5,
-19,
-3,
-54,
-8,
-49,
1,
-2,
16,
18,
17,
-13,
20,
5,
0,
-9,
-30,
-43,
44,
-3,
4,
24,
-21,
-14,
18,
-6,
-6,
-54,
-39,
-25,
-27,
59,
-5,
12,
-6,
-11,
-16,
-12,
15,
3,
28,
-70,
-11,
23,
13,
-19,
-21,
-9,
21,
60,
-18,
-25,
20,
39,
19,
-45,
0,
3,
-33,
12,
-46,
-11,
-5,
17,
0,
34,
-28,
-11,
-24,
1,
-17,
-2,
-5,
-47,
-73,
-22,
-46,
26,
-15,
-5,
31,
27,
35,
58,
-31,
-1,
-55,
-1,
-24,
4,
3,
-25,
5,
-27,
63,
-43,
-35,
35,
-2,
-17,
30,
-32,
16,
-15,
-70,
-11,
39,
26,
-3,
18,
7,
11,
-9,
-9,
2,
-9,
10,
21,
17,
48,
-27,
0,
-22,
2,
31,
-39,
23,
-15,
-10,
-32,
12,
-1,
-33,
-3,
-18,
58,
-8,
-41,
21,
-10,
27,
9,
7,
-6,
37,
-10,
38,
-20,
0,
45,
-39,
12,
4,
-72,
-25,
15,
18,
-7,
-16,
-23,
17,
-35,
31,
-10,
17,
10,
4,
-59,
-19,
0,
0,
28,
64,
5,
9,
-42,
51,
17,
-79,
-27,
42,
-52,
-24,
19,
0,
-15,
-17,
-6,
41,
58,
-11,
-40,
26,
-9,
49,
-7,
28,
23,
21,
-31,
25,
-49,
8,
-13,
38,
-43,
78,
4,
-8,
8,
11,
-29,
15,
70,
1,
10,
-24,
-42,
-24,
-12,
60,
-25,
8,
6,
49,
-12,
17,
-6,
24,
33,
-22,
-30,
-17,
48,
18,
8,
-4,
-45,
19,
58,
1,
-3,
-50,
-13,
2,
26,
4,
-34,
1,
44,
-25,
65,
-40,
-6,
-9,
48,
53,
1,
-13,
-27,
-1,
-9,
-20,
-14,
-18,
-36,
12,
12,
0,
-62,
-10,
-20,
17,
-64,
-33
] |
Cynar, J.
Plaintiff brought suit alleging that the defendants had violated the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq. After a bench trial in St. Clair County Circuit Court, judgment was granted to the plaintiff for damages, costs and attorney’s fees in the amount of $11,551.31. Defendants appeal from the judgment and order to this Court as of right.
In May 1980, the plaintiff went to the defendant Shepard Lincoln Mercury dealership to inquire about purchasing a Lincoln Mark VI. She spoke to defendant James Shepard, Jr., a salesman for the dealership, about the car. The plaintiff did not decide to purchase the car at that time. Shepard followed up on her interest a few days later with a telephone call. After a few more days, plaintiff stopped by the dealership and offered to trade her house and her 1978 Buick in exchange for $12,000 and the Lincoln.
Defendant Shepard and his father, James Shepard, Sr., president of Shepard Lincoln Mercury, Inc., went to the plaintiff’s residence to examine the property. Defendant Shepard testified that the house was in a state of disrepair, needing a lot of work. The plaintiff disputed that characterization, testifying that her late husband had kept the house in good condition both inside and out. Plaintiff was anxious to sell the house because she no longer wanted to bear the burden of maintaining it and she also wanted to be able to purchase the Lincoln so she could travel.
The parties finally entered into an agreement on May 29, 1980. The plaintiff was to receive the Lincoln, valued at $17,000, and $11,000 in cash. However, $1,000 was deducted for back taxes owed on the property. In return, defendant James Shepard, Jr., was to receive title to her property, including all mineral rights. The property was determined to have a minimum value of $43,000. Therefore, the plaintiff gave the defendants approximately $43,000 in value in exchange for approximately $27,000 in value. Nominally, defendant Shepard was to assume the mortgage. However, in fact, the plaintiff was to remain liable for paying the remainder of the outstanding balance on the mortgage. At the same time, defendant Shepard retained a security interest in the Lincoln. If the plaintiff failed to make the remaining payments on the mortgage, Shepard was entitled to repossess the car.
On the above facts, the trial court held that the Act had been violated because defendants’ actions confused the plaintiff, the consideration that plaintiff exchanged for the car was grossly excessive, and the defendants took advantage of the plaintiff. The corporate defendant was found liable on an agency theory.
The first issue is whether the Act applies to this case. The Act is designed to prohibit certain methods, acts and practices in trade or commerce. MCL 445.903; MSA 19.418(3). MCL 445.902(c); MSA 19.418(2)(c) states:
" 'Trade or commerce’ means the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article. 'Trade or commerce’ does not include franchising but does include pyramid and chain promotions as defined in section 28 of Act No. 269 of the Public Acts of 1974, being section 445.1528 of the Michigan Compiled Laws.”
MCL 445.903(1); MSA 19.418(3)(l)makes unfair, unconscionable or deceptive methods, acts or practices in the conduct of trade or commerce unlawful. When the language of a statute is clear, it is assumed that the Legislature intended the meaning it has plainly expressed. Hiltz v Phil’s Quality Market, 417 Mich 335, 343; 337 NW2d 237 (1983). Where a statute supplies its own glossary, a court must apply the terms as expressly defined. Detroit v Muzzin & Vincenti, Inc, 74 Mich App 634, 639; 254 NW2d 599 (1977), lv den 400 Mich 858 (1977). The plain langauge of the statute makes it clear that the Act applies to this case. This case involves the sales of property; defendant James Shepard, Jr., sold plaintiff an automobile for personal use. The Act is therefore applicable to the case at bar.
Defendants next argue that the conduct in question did not violate the Act. This was a question of fact for the trial court. Findings of fact in a bench trial will not be disturbed on appeal unless the findings are clearly erroneous. Ewald v Pontiac General Hospital, 121 Mich App 793, 795; 329 NW2d 495 (1982); GCR 1963, 517.1. We are not left with a definite and firm conviction that the trial court made a mistake. The record supports the trial court’s conclusions and we will not disturb them on appeal.
Defendants next claim that the Act does not provide for the award made by the trial court. We disagree. MCL 445.911(2); MSA 19.418(H)(2) provides:
"Except in a class action, a person who suffers loss as a result of a violation of this act may bring an action to recover actual damages or $250.00, whichever is greater, together with reasonable attorneys’ fees.”
The trial court’s award was clearly authorized by the statute.
Defendants also claim that plaintiff’s claim should be barred by laches. Mere delay in asserting a claim for a period less than that in the statute of limitations does not constitute such laches as will defeat recovery in law or equity. Kaminski v Wayne County Board of Auditors, 287 Mich 62, 67; 282 NW 902 (1938). The limitation period under the Act is six years. MCL 445.911(7); MSA 19.418(H)(7). Defendants have not shown prejudice by plaintiff’s delay of about two years before filing suit. The claim was not barred by laches.
Finally defendants claim that the trial court erred in finding the corporate defendant liable on the basis of an agent/principal relationship. This was a question of fact. Lincoln v Fairfield-Nobel Co, 76 Mich App 514; 257 NW2d 148 (1977). The finding need not be set aside; it was not clearly erroneous. Ewald, supra.
Affirmed. | [
-4,
32,
6,
-12,
0,
5,
14,
77,
47,
-26,
-5,
-3,
19,
27,
-2,
3,
64,
-10,
-8,
-20,
-30,
-36,
-85,
-12,
-20,
-13,
52,
-32,
-16,
34,
-14,
-18,
17,
-7,
-24,
-8,
12,
-28,
24,
37,
31,
-60,
-17,
-1,
-25,
-42,
54,
-43,
36,
31,
34,
6,
11,
-30,
8,
-24,
48,
0,
-39,
-15,
6,
-50,
19,
11,
-24,
11,
7,
26,
11,
61,
-10,
8,
-5,
15,
18,
17,
-29,
-3,
-1,
-52,
-25,
-21,
87,
-12,
-3,
42,
-17,
15,
-23,
-26,
-10,
25,
-19,
-10,
64,
45,
-26,
16,
16,
11,
-25,
-50,
-7,
46,
15,
35,
-37,
-47,
-12,
35,
11,
-34,
59,
-8,
-2,
-11,
-34,
11,
23,
0,
1,
-3,
-14,
-20,
46,
6,
-20,
-31,
11,
25,
37,
21,
-6,
60,
-18,
-21,
35,
-33,
12,
-14,
11,
-23,
-32,
-38,
3,
27,
43,
-12,
3,
-23,
-77,
31,
11,
34,
7,
-16,
29,
-18,
29,
4,
29,
-35,
-11,
16,
-61,
-52,
-25,
17,
15,
-29,
14,
26,
17,
-60,
27,
15,
2,
-23,
-48,
-15,
-29,
-14,
42,
36,
-13,
-80,
17,
10,
-6,
1,
55,
-24,
22,
30,
3,
41,
4,
9,
8,
37,
28,
-82,
5,
-33,
25,
-47,
19,
-51,
-26,
-18,
9,
0,
-30,
-29,
-72,
-3,
53,
-11,
-4,
-16,
39,
-47,
-7,
21,
-41,
-52,
-18,
-38,
0,
-2,
4,
-2,
23,
13,
-62,
28,
38,
5,
29,
13,
-21,
-14,
14,
-30,
-5,
-12,
-65,
28,
-1,
-14,
0,
-58,
0,
51,
-22,
19,
-20,
-13,
30,
-5,
-1,
74,
-34,
18,
-21,
22,
-16,
-2,
-15,
8,
8,
-15,
-35,
37,
-18,
-40,
-32,
11,
24,
-15,
43,
-22,
-10,
-60,
2,
51,
-35,
19,
-1,
-52,
21,
0,
18,
-40,
-12,
20,
15,
-51,
27,
2,
13,
-48,
12,
12,
-10,
-43,
10,
44,
-7,
33,
9,
-23,
15,
10,
37,
-39,
-32,
-20,
74,
20,
44,
2,
-25,
66,
-60,
0,
18,
14,
-43,
25,
-47,
2,
-20,
-2,
-3,
-44,
42,
-29,
31,
45,
6,
46,
7,
-12,
13,
-23,
34,
10,
-32,
-15,
-35,
2,
-18,
18,
0,
35,
62,
5,
-17,
21,
21,
52,
3,
13,
7,
30,
29,
-12,
-1,
72,
-11,
12,
-20,
13,
-51,
-43,
-58,
-27,
-57,
48,
11,
-41,
17,
10,
18,
37,
-8,
-26,
-2,
-4,
-4,
-47,
15,
12,
0,
-70,
-1,
-5,
-45,
2,
37,
42,
22,
-45,
-32,
37,
35,
5,
-13,
1,
9,
-33,
11,
13,
-16,
-19,
55,
-44,
-13,
-19,
-4,
0,
0,
-20,
90,
-61,
24,
19,
0,
82,
-10,
12,
4,
-43,
57,
-4,
-8,
-14,
36,
49,
35,
82,
8,
-56,
62,
0,
-10,
-2,
37,
-7,
49,
11,
-1,
13,
5,
21,
15,
12,
-16,
-72,
2,
-45,
48,
-46,
-4,
-43,
27,
-3,
-19,
-5,
-4,
36,
4,
-2,
3,
2,
-1,
-25,
-34,
38,
2,
47,
-29,
-24,
-7,
-34,
-55,
-16,
-16,
-21,
32,
-21,
6,
50,
-4,
3,
29,
19,
-2,
-13,
-19,
-16,
-17,
72,
19,
-28,
16,
-4,
14,
3,
-1,
-11,
20,
27,
-52,
12,
14,
2,
33,
88,
3,
11,
-10,
13,
17,
0,
42,
1,
23,
-14,
20,
8,
-21,
21,
8,
-14,
9,
40,
-16,
-37,
7,
24,
7,
-32,
-20,
-37,
-15,
-11,
59,
-12,
-18,
-73,
19,
-8,
-4,
-1,
21,
-17,
-20,
17,
-6,
21,
28,
-3,
12,
-19,
22,
-45,
38,
-16,
-54,
15,
38,
-55,
12,
-23,
1,
-44,
-53,
-48,
-42,
-15,
10,
-29,
-66,
13,
24,
46,
-8,
1,
9,
-37,
19,
6,
18,
4,
33,
-32,
33,
-7,
-7,
-20,
-41,
24,
0,
1,
-28,
79,
-16,
6,
63,
-3,
-8,
-12,
24,
6,
-21,
-64,
27,
40,
9,
-27,
55,
31,
43,
11,
22,
-19,
-15,
-11,
-48,
-59,
-46,
-26,
-34,
-29,
12,
23,
-39,
-52,
-21,
21,
22,
-23,
-30,
-8,
22,
-17,
-12,
-8,
-42,
13,
-20,
46,
9,
10,
5,
-41,
24,
-1,
51,
-34,
-47,
10,
-21,
-7,
55,
2,
-24,
53,
9,
-15,
44,
-11,
48,
36,
-25,
59,
57,
19,
-42,
23,
24,
4,
-52,
-63,
43,
0,
-12,
-37,
-10,
-15,
-26,
17,
-9,
25,
-8,
51,
-27,
19,
-16,
50,
-24,
7,
-66,
56,
5,
42,
-30,
-26,
0,
37,
30,
-39,
6,
0,
30,
-17,
-64,
-27,
-43,
7,
57,
-33,
30,
-56,
13,
-5,
11,
16,
-4,
15,
-19,
-1,
-17,
6,
38,
-19,
-24,
-30,
3,
23,
20,
-54,
1,
-29,
15,
40,
47,
3,
-10,
8,
41,
70,
44,
-8,
-28,
-8,
-16,
-32,
-51,
16,
28,
27,
25,
3,
-9,
-1,
20,
-31,
-72,
39,
4,
-3,
-12,
-11,
35,
-2,
42,
-13,
31,
-25,
23,
-28,
-18,
-9,
57,
0,
15,
2,
27,
51,
4,
-26,
-50,
40,
58,
6,
11,
-41,
6,
26,
-7,
39,
32,
2,
-50,
7,
2,
5,
-10,
-42,
10,
-80,
29,
-17,
21,
3,
-14,
53,
28,
0,
-64,
-24,
-76,
-24,
-10,
-8,
6,
-33,
-19,
-21,
-24,
6,
-36,
12,
25,
5,
4,
-27,
-24,
-27,
-18,
28,
29,
37,
20,
13,
21,
-27,
-64,
-62,
-2,
0,
-31,
-9,
0,
48,
-9,
-20,
-12,
-6,
-40,
0,
53,
-16,
-14,
-8,
19,
18,
-23,
2,
-2,
33,
15,
-5,
34,
-39,
3,
-26,
24,
-43,
-10,
53,
-17,
2,
20,
-28,
-76,
51,
1,
-12,
-2,
7,
-67,
-10,
14,
-5,
95,
-5,
22,
-9,
-31,
-19,
-13,
24,
-1,
23,
-75,
-39,
32,
15,
-13,
14,
19,
-8,
14,
-10,
49,
10,
33,
-6,
-46,
-28,
-14,
1,
-9,
-28,
-19,
17,
2,
5,
-5,
61,
16,
-45,
-18,
-18,
-17,
26,
-5,
-31,
-56,
-8,
-40,
-31,
25,
-27,
-6,
69,
31,
0,
58,
35,
-41,
14,
21,
-75,
-36,
-1,
8,
-6,
53,
-63,
18,
-24,
14,
-5,
5,
21,
-11,
9,
-34,
5,
-22,
-33,
31,
23,
-4,
29,
-43,
-37,
-25,
39,
27,
-5,
-13,
10,
-45,
-24,
-35,
10,
12,
-31,
26,
-2,
18,
23,
38,
-33,
-43,
0,
47,
-30,
-13,
-38,
-13,
1,
36,
-12,
-59,
-16,
14,
-3,
-29,
20,
-25,
35,
24,
-55,
-13,
20,
10,
53
] |
Sharpe, J.
The defendant tea company had been operating a retail store in the city of Gladstone for several years prior to March 6, 1929. Armand LaPointe, hereafter called the plaintiff, had been employed for some time prior thereto in delivering merchandise and “peddling bills” by a former manager, Lawrence Gross, and its then manager, the defendant Chevrette. He was, at the time above stated, 15 years of age. He was attending school and performed the services above stated after school hours and on Saturdays. When the weather was cold, he would go from the school to his home and put. on “a pair of high-topped boots with rubber bottoms, and heavy sweater and heavy leather jacket, and heavier trousers and socks and mittens.”
Armand testified that on March 5th the defendant Chevrette told him that he intended to discontinue the delivery of merchandise and that he could work inside the store; that, when he came to the store on March 6th, Chevrette put him to work piling canned goods on the shelves; that about 5:30 Chevrette asked him “to go out and deliver orders with him;” that he objected to doing so because it was “very stormy,” but was told that he had to go because he knew where the people lived; that he then said he would go home and change his clothing, but was told that there was not time for him to do so, that they would be gone but a short time, and that he “would be all right;” that the merchandise, consisting of “sacks of flour and sugar and large boxes of canned goods and things like that,” was placed on a truck; that, while Chevrette rode in the cab of the truck with the driver, he was required to ride on the back part thereof, “holding the cover over the merchandise and watching that it would not fall off the truck;” that “there was lots of snow drifted and the truck got stuck and we had to get out and push;” that it became colder, and after a time he told Chevrette that he “was so wet and cold that I couldn’t stand it any longer and I wanted to go. He told me we would be only a few minutes more, and I stayed with him; ’ ’ that he had no mittens or gloves on and his feet and legs became wet, and that they left him about three blocks from his home and he “had a hard time” to get there as he was so wet and cold that he could hardly walk; that he was out about two hours; that he was ill during the night, went to school the next morning, but felt dizzy and was given permission to go home, and went to bed. There was evidence that the night was unusually stormy, and that the people were then using the streets instead of the sidewalks. The distance traveled in making the deliveries was about four miles.
Plaintiff’s condition grew gradually worse, and a doctor was called, who found his legs swollen and that he was suffering severe pain. After treating him for a few days, he recommended that he be taken to a hospital, where he was treated for two weeks, and then taken home in an ambulance. He was later taken to different hospitals and operated on a number of times, once in the State Hospital at Ann Arbor. His ailment was diagnosed by several doctors as osteomyelitis, an infection of the bone, which plaintiff claims was caused by his exposure on the evening of March 6th.
His mother was duly appointed as his guardian, and brought this action to recover the damages incident thereto. She had verdict against both defendants for $26,470.80. Defendants’ motion for judgment notwithstanding* the verdict, which had been reserved, was denied, as was also their motion for a new trial, conditioned, however, on plaintiff’s remitting all in excess of $12,000, which she did, and a judgment was entered for that amount, from which defendants have taken this appeal.
Defendants insist that there was no evidence of negligence on their part; that Armand assumed the risk incident to the service rendered, and that he was guilty of contributory negligence as a matter of law.
It may be stated at the outset that—
“The age of the plaintiff, and his tendency to defer to the judgment of his superior are proper considerations in determining the questions of negligence, of assumed risk, and contributory negligence.” Belmer v. Boyne City Tanning Co. (syllabus), 160 Mich. 669.
The employee in that case was also 15 years of age. As a general rule, an employee “assumes the risk of the obvious dangers incident to his employment” (Neifert v. Metler, 165 Mich. 354), and it is not negligent for an employer to direct Mm to perform services the risks of which are apparent to, and appreciated by, the employee (Lewis v. Phelps, 256 Mich. 646).
An exception to this rule is noted and considered at length in 18 R. C. L. p. 655 et seq. We quote therefrom:
“Another element that may affect an employee’s appreciation of the perils of Ms employment, and consequently Ms right of recovery for injuries resulting therefrom, is a command by the employer or his representative to do a particular act, or an assurance that the act may be performed without danger. It is a fundamental of the relation of master and servant that the servant shall yield obedience to the master, and this obedience an employee properly may accord even when confronted with perils that otherwise should be avoided. In any case, but more plainly when a command is sudden and there is little or no time for reflection and deliberation, the employee may not set up Ms judgment against that of his recognized superiors; on the contrary he may rely upon their advice, assurances, and commands, notwithstanding many misgivings of his own. It by no means follows that, because he could justify disobedience of the order, he is barred of recovery for injuries received in obeying it. He is not required to balance the degree of danger and decide whether it is safe for Mm to act, but he is relieved in a measure of the usual obligation of exercising vigilance to detect and avoid the danger. * * *
“The general principle above expressed applies in case the employee performs the service pursuant to assurances of the absence of danger as well as where the inducement takes the form of a command or order. If, suspecting danger, he demurs to the performance of desired acts, and the employer to overcome Ms hesitation assures Mm that no danger exists, he will be entitled as a rule to recover in case he sustains an injury. ’ ’
In 39 C. j. p. 485, it is thus stated:
“But a servant acting in obedience to such command, upon the assurance of the one giving it that there is no danger, may rely upon such assurance and the master will be liable for resulting injuries. ’ ’
The authorities cited in both volumes fully sustain the above statements.
In Fillippon v. Albion Vein Slate Co., 250 U. S. 76 (39 Sup. Ct. 435), the court quotes with approval the following from Williams v. Clark, 204 Pa. 416, 418 (54 Atl. 315):
“If the master gives the servant* to understand that he does not consider the risk one which a prudent person should refuse to undertake, the servant has a right to rely upon his master’s judgment, unless Ms own is so clearly opposed thereto that, in fact, he does not rely upon his master’s opiMon. A servant is not called upon to set up his own unaided judgment against that of his superiors, and he may rely upon their advice and still more upon their orders, notwithstanding many misgivings of his own. The servant’s dependent and inferior position is to be taken into consideration; and if the master gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurredj if the work was not inevitably and imminently dangerous.”
It was Armand’s duty to obey the orders given him by Chevrette. In view of his age and his desire to retain his employment, it may well be said that—
“He obeyed that instinctive impulse to follow the direction of his superior, which is the characteristic of a faithful, resolute, and loyal servant, and his-conduct is entitled to he viewed in the light of reasonable charity.” Sawyer v. Rumford Falls Paper Co., 90 Me. 354 (38 Atl. 318, 60 Am. St. Rep. 260).
He was not fully aware of the danger to which he became exposed by the weather conditions at the time they started to make the deliveries. Neither was it at that time apparent to Chevrette. Ordinarily, it would have taken but a short time to do so, as the distance traveled was about four miles, hut, when the truck became stalled and the weather more inclement as they proceeded, the danger to a boy, dressed as Armand then was, should have become apparent to Chevrette, and, in view of the assurance he had given him that he “would be all right,” it cannot be said as a matter of law that there was not negligence on his part, or that Armand assumed the risk incident to the service he was rendering, or was guilty of contributory negligence in its performance.
The following special questions were submitted to the jury, and answered as indicated:
“1. Was the risk to health arising from delivering groceries under the weather conditions existing on the evening of March 6, 1929, reasonably incident to that employment and such as under the circumstances would be seen and appreciated by an ordinarily prudent person of the age and. experience of plaintiff’s ward?
“Answer: Yes.
“2. Would a person of ordinary intelligence reasonably anticipate that the performance of the services rendered by Armand LaPointe on March 6, 1929, under the weather conditions then existing would probably result in bringing on an attack of osteomyelitis ?,
“Answer: No.
“3. Should a person of ordinary intelligence reasonably anticipate considering the age of plain tiff’s ward that the performance of the services rendered by Armand LaPointe on March 6, 1929, /under all the conditions then existing would result in the damages claimed to have been suffered by plaintiff’s ward?
“Answer: No.”
It is urged that tjie answers to these questions “were inconsistent with the general verdict.” The trial court held that they were not controlling. After due consideration, in view of what has been heretofore said, we have reached the same conclusion. Armand testified that he feared the effect of the exposure, clothed as he was, but was induced to go by the assurance that they would be out hut a few minutes, and that he “would be all right.” It is apparent that Chevrette did not anticipate that the exposure to which Armand was likely to he subjected would result as it did. He no doubt expected that the deliveries would take but a short time, but, when it became apparent that, owing to the condition of the streets, considerable time would be needed therefor, the jury were warranted in finding that he was guilty of negligence in insisting on Armand’s remaining with the truck. The declaration not only charged negligence in ordering him to assist in the delivery, hut in keeping him out in the storm, knowing that he was inadequately dressed to be exposed to severe weather.
In Baker v. Railroad Co., 169 Mich. 609, 618, it was said:
“Where an act is negligent, to render it the proximate cause, it is not necessary that the one committing it might have foreseen the particular consequence or injury, or the particular manner in which it occurred, if by the exercise of reasonable care it might have been anticipated that some injury might occur.”
"Was the plaintiff an employee of the tea company? The defendant Chevrette, in his answer to the declaration, admitted “that plaintiff was in the employ of the tea company on March 5,1929. ’ ’ The defendant tea company, in its answer afterwards filed, made a denial thereof. On the same day, an amended answer of Chevrette was filed, which also contained a denial of such employment. Both defendants were at all times represented by the same attorneys. The plaintiff testified that he was employed by Chevrette, and that the money paid to him was taken ont of the cash register in the store. Chevrette testified that he had no knowledge that such an admission was made in the answer first filed; that the company did not pay for deliveries, and that he personally paid plaintiff for the services rendered by him. Chevrette was the manager in charge of the tea company’s store. He makes no claim that he told plaintiff that he was paying for the deliveries himself. He testified that deliveries were being made at so late an hour because “the people were coming in and complaining about not delivering the orders,” and that deliveries were made “in compliance with the custom of the store.” The plaintiff, unless otherwise informed, had the right to assume that he was rendering services for the company, and not for Chevrette personally.
The trial court carefully instructed the jury as to the relation of principal and agent, and that, to entitle plaintiff to recover, it must appear that Chevrette’s act in hiring him “was within the real or apparent scope of the presumed authority.” In Grand Rapids Electric Co. v. Walsh Manfg. Co., 142 Mich. 4, 9, it was said:
“It is equally well settled that, having ascertained the general character or scope of the agency, the party is authorized to rely upon the agent’s having such powers as naturally and properly belong to such character, and, in the absence of circumstances putting him upon inquiry, is not bound to inquire for secret qualifications or limitations of the apparent powers of the agent.”
See, also, Brandt v. C. F. Smith & Co., 242 Mich. 217, and Central Railroad v. DeBray, 71 Ga. 406 (48 L. R. A. [footnote] 765).
While “the apparent authority for which the principal may be liable must, however, be traceable to him and cannot be established by the acts and conduct of the agent” (Maryland Casualty Co.v. Moon, 231 Mich. 56, 62), the act of the defendant company in establishing and maintaining for a length of time a store for the sale of-merchandise, some of which must be conveyed to the homes of customers by some sort of vehicle, might well be found by the jury to confer authority on the part of its manager to provide for its delivery. That it was the policy of the company to make no deliveries is in no way controlling unless by advertisement or otherwise the customers and the help employed by the manager were informed thereof.
Error is assigned upon the admission of the testimony of several doctors that in their opinion the alleged exposure “did cause the result complained of” under the holding of this court in DeGroot v. Winter, 261 Mich. 660. The objection now urged was not made at the trial, nor were the errors in this respect complained of on the motion for a new trial. They may not be considered on this appeal. Rice v. Katz, 255 Mich. 1; Burke v. Henry, 261 Mich. 74.
On a motion for a new trial, it was insisted that the verdict was against the great weight of the evi deuce, and that the amount for which the judgment was rendered is still excessive. The trial court held that there was evidence to support the verdict, and, although disputed, its weight was for the jury. He heard and saw the witnesses. We are unwilling to disturb the conclusion reached by him in this respect.
He also had opportunity to observe the physical condition of the plaintiff at the time of the trial, and heard the witnesses testify as to his suffering and then condition. In Kinsler v. Simpson, 257 Mich. 7, it was said:
“If reasonably within the range of the testimony, the determination of the trial judge as to the amount of damages to be awarded will not be disturbed, on appeal.”
When the plaintiff rested, and also at the conclusion of the proofs, the defendants moved for a directed verdict on the ground, among others, that—
“The suit purports to be brought by the guardian, and she is named as plaintiff throughout the pleadings. The suit is brought by her by designation as guardian, etc., being merely a designation of a person, and there is no proof in the case of any injury or damage in the case to the person named as plaintiff.”
In disposing of this question on the motion for judgment notwithstanding the verdict, the trial court said:
“The first reason, which is to the effect that the suit purports to be brought by the guardian for injuries to herself, and that the description of her as guardian is merely description of the person, is not borne out nor supported by the language of the declaration taken as a whole and taking its fair import. While the declaration can hardly be said to be a model of legal craftsmanship, its meaning is plain, the evidence was all directed to injuries to the boy, and if its defects are more serious it can be now corrected by amendment.”
The length of this opinion would.seem to preclude the insertion in it of the declaration in full. Under the liberal rules applied to pleadings in this State, we think the motions were properly denied for the reason stated by the trial court.
The other errors assigned have been considered, but do not merit discussion.
The judgment is affirmed.
McDonald, C. J., and Potter, North, Fbad, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
-21,
29,
13,
28,
17,
-5,
0,
5,
-28,
42,
-75,
-1,
31,
66,
0,
-17,
-7,
-12,
-7,
-17,
18,
-69,
50,
-32,
24,
-36,
-48,
-50,
-39,
47,
23,
55,
20,
-56,
13,
13,
3,
-16,
6,
-20,
1,
25,
28,
13,
40,
1,
6,
39,
68,
-13,
75,
28,
35,
-8,
9,
55,
-20,
3,
11,
50,
-30,
-18,
33,
-5,
7,
-50,
-26,
51,
-50,
67,
-43,
-41,
-18,
13,
21,
-37,
-39,
-8,
30,
9,
5,
9,
4,
-34,
-70,
17,
-31,
0,
-56,
9,
31,
21,
-20,
13,
20,
12,
-12,
43,
0,
-21,
5,
-6,
29,
-15,
1,
8,
-21,
-36,
-54,
13,
-70,
41,
80,
-35,
1,
-45,
10,
-23,
40,
45,
20,
-1,
-17,
-35,
32,
-56,
-53,
14,
-72,
6,
-7,
24,
-3,
26,
0,
17,
-34,
0,
-13,
-9,
38,
66,
25,
-5,
-25,
17,
-75,
20,
-31,
19,
-26,
-41,
-22,
-36,
-1,
51,
41,
-46,
15,
-19,
-1,
-3,
34,
-49,
-30,
-24,
-40,
48,
-42,
3,
17,
9,
5,
5,
24,
7,
16,
12,
-1,
-4,
-30,
-30,
4,
0,
-2,
-8,
-4,
-2,
48,
9,
16,
-50,
-7,
-4,
-28,
7,
-3,
-53,
39,
-24,
-4,
19,
-31,
-8,
-1,
-11,
26,
32,
-18,
9,
-32,
1,
6,
-60,
-14,
18,
-42,
-61,
21,
-25,
-4,
32,
-2,
11,
-26,
-22,
-19,
79,
0,
-29,
10,
-2,
-14,
49,
11,
-21,
36,
-23,
22,
63,
-37,
-33,
7,
-14,
-27,
21,
-39,
-28,
-29,
58,
-25,
8,
-8,
-13,
-35,
-48,
-4,
-19,
21,
29,
16,
41,
19,
51,
46,
25,
12,
71,
4,
25,
-4,
-13,
78,
2,
-12,
13,
16,
24,
48,
7,
8,
-1,
-3,
0,
20,
-19,
-17,
1,
5,
44,
40,
-9,
6,
3,
69,
6,
25,
40,
-45,
6,
5,
2,
-45,
8,
3,
45,
-36,
-7,
32,
-18,
-20,
-30,
-37,
-3,
-6,
-54,
39,
11,
25,
3,
-16,
8,
24,
57,
-2,
9,
14,
24,
48,
-18,
52,
-43,
-8,
-52,
-25,
-15,
-5,
51,
47,
-21,
-42,
69,
-36,
-18,
-9,
10,
63,
45,
-23,
-44,
56,
-14,
73,
23,
9,
10,
30,
-20,
3,
25,
33,
-82,
4,
2,
16,
16,
20,
29,
-21,
33,
-23,
13,
18,
-27,
-10,
-73,
-16,
-34,
-37,
41,
30,
-76,
23,
-16,
1,
-34,
1,
-19,
-4,
-7,
1,
41,
-1,
5,
-19,
50,
22,
3,
13,
-52,
18,
38,
36,
-10,
5,
-34,
-5,
0,
48,
1,
-9,
-35,
-1,
-18,
-20,
-41,
25,
-7,
-8,
30,
34,
33,
31,
9,
60,
-16,
-10,
8,
30,
-16,
-4,
-30,
2,
-34,
-72,
13,
-14,
-45,
5,
-49,
-36,
-29,
0,
28,
16,
1,
-17,
-6,
65,
-57,
-27,
-1,
55,
18,
27,
1,
-21,
0,
62,
44,
-32,
50,
-37,
24,
44,
30,
20,
-8,
-33,
14,
-43,
30,
-18,
0,
-2,
44,
33,
27,
17,
17,
-25,
-9,
54,
29,
-3,
-49,
6,
2,
12,
79,
48,
-15,
-23,
-20,
5,
-7,
-11,
28,
14,
20,
-68,
-43,
2,
0,
20,
-16,
-31,
3,
41,
-10,
-7,
23,
21,
-27,
5,
9,
-22,
38,
8,
57,
20,
28,
-14,
48,
-27,
36,
22,
-3,
-13,
-51,
35,
-12,
22,
18,
11,
5,
67,
-8,
-2,
-12,
-6,
12,
-21,
-36,
-26,
1,
-3,
39,
10,
29,
51,
30,
34,
-31,
-19,
-19,
-38,
-13,
39,
12,
-11,
53,
25,
0,
19,
-49,
0,
54,
41,
-15,
-66,
-20,
1,
83,
-24,
57,
-28,
0,
-24,
15,
31,
-21,
0,
22,
-11,
24,
53,
-21,
-39,
7,
18,
-18,
-18,
26,
13,
-3,
-68,
9,
18,
-41,
8,
19,
-19,
-7,
0,
-31,
-59,
-28,
-23,
-12,
13,
-2,
-10,
-35,
12,
-28,
-4,
-1,
6,
17,
-4,
-31,
-23,
23,
-40,
-18,
-14,
-47,
-30,
5,
-1,
-9,
32,
27,
-31,
-25,
39,
26,
-63,
-55,
-17,
-77,
6,
-53,
-53,
18,
-16,
4,
-8,
-38,
-27,
-7,
57,
22,
-2,
-24,
10,
6,
-46,
-22,
-19,
-33,
-51,
-2,
10,
0,
-22,
0,
-35,
-16,
0,
-15,
-56,
-25,
-2,
-31,
-4,
-16,
6,
20,
-1,
9,
60,
7,
-1,
4,
36,
-22,
19,
-68,
-28,
-26,
-9,
-39,
28,
14,
-12,
-5,
12,
-76,
-47,
13,
23,
6,
-3,
-20,
-30,
-34,
-13,
54,
0,
-22,
15,
34,
-9,
-3,
-28,
12,
17,
-14,
8,
-15,
81,
-2,
62,
8,
24,
-33,
-32,
34,
28,
63,
14,
-46,
43,
14,
5,
-21,
-8,
19,
-43,
-26,
-22,
7,
-21,
-26,
-18,
-11,
-24,
6,
0,
38,
32,
-23,
33,
-33,
20,
26,
-61,
-18,
-20,
-26,
6,
-2,
37,
2,
33,
-27,
14,
-21,
7,
-12,
-43,
18,
-25,
-17,
-29,
16,
34,
-25,
25,
-5,
1,
-13,
-5,
0,
6,
-1,
64,
-26,
-29,
-43,
-81,
-8,
-62,
-21,
-9,
-2,
23,
-12,
-12,
3,
-44,
72,
27,
15,
12,
-25,
0,
0,
-18,
23,
-11,
-9,
48,
3,
-14,
-49,
10,
38,
9,
-33,
4,
-22,
4,
12,
3,
13,
-17,
-26,
7,
-25,
-10,
12,
-42,
0,
-5,
-30,
-10,
17,
-14,
13,
23,
20,
1,
-13,
44,
41,
-46,
-45,
6,
-2,
-27,
1,
56,
-25,
-8,
-30,
-12,
32,
-12,
-26,
-44,
-15,
5,
30,
-21,
-20,
40,
-1,
33,
29,
4,
-13,
-19,
27,
-15,
18,
30,
-5,
9,
-41,
43,
44,
-11,
17,
14,
-47,
-20,
14,
-34,
-56,
-51,
-61,
-11,
-48,
7,
-17,
-56,
-7,
21,
25,
-48,
-2,
-10,
-63,
10,
-26,
9,
-3,
-20,
-14,
-7,
-11,
9,
10,
-32,
72,
8,
-17,
-11,
-33,
38,
47,
47,
39,
31,
-10,
25,
41,
11,
39,
65,
0,
-22,
12,
-5,
-40,
-7,
8,
8,
24,
-61,
-18,
-10,
-13,
47,
-32,
17,
-5,
-10,
-22,
-36,
29,
-27,
-8,
-57,
-29,
-11,
-2,
-21,
21,
29,
14,
-11,
34,
41,
5,
-15,
-53,
5,
-29,
61,
16,
19,
-45,
22,
-31,
47,
-8,
5,
17,
-21,
40,
-12,
6,
-30,
12,
-85,
-6,
-40,
4,
60,
36,
29,
-23,
-21,
-11,
21,
-18,
-43,
-19,
-28,
6,
-31,
46,
-4,
32,
-54,
12,
-8,
-39,
0,
3,
9,
-25,
43,
37,
-31,
19,
13,
5,
4,
46
] |
North, J.
Plaintiff had judgment against the defendant Joel Stockard & Company for $9,000. Upon instituting the principal suit, a garnishee summons was served on the Peoples Wayne County Bank, and subsequently judgment taken against the bank for the amount due on the principal judgment; The garnishee defendant has appealed.
At the time the Peoples Wayne County Bank was served with garnishment process the principal defendant was indebted to it on a promissory note in a large amount and had deposited with it as collateral security to such indebtedness certain stocks and bonds. These included 697 shares of the American State Bank stock. While the garnishment proceeding was pending the bank, exercising its right under the defendant’s collateral loan note, undertook through its brokers to sell the 697 shares of American Bank stock. The brokers negotiated the sale, but, upon attempting to consummate the transaction by delivering the stock of Joel Stockard & Company, it was found that delivery could not be made because at that time Joel Stockard & Company was in the hands of a receiver, and the certificates were not in proper form. Instead of selling this stock through its brokers the garnishee defendant secured a like amount of stock from other sources and consummated the negotiated sale. It resulted in a profit for which the broker accounted to the bank for upwards of $16,000. Other items of collateral held by the garnishee defendant in connection with the indebtedness of Stoekard & Company were also sold. As the result of such sales, the amount received by the bank, not including the profit made on the sale first above mentioned, is somewhat less than the indebtedness of Joel Stoekard & Company to the bank. But if the $16,000 profit were to be included, the money thus received by the bank would exceed the amount due it from the principal defendant, and such excess, to the extent of plaintiff’s judgment, would then be subject to garnishment.
It is the claim of the garnishee defendant that, since the $16,000 profit was not derived from the sale of the collateral belonging to the principal defendant, no obligation arises on the part of the bank to account to either the principal defendant or to the plaintiff in this garnishment proceeding for any portion of the profit received. On the other hand, it is plaintiff’s claim that, since the transaction which resulted in the profit was undertaken by the bank incident to an attempt to realize upon the collateral deposited with the bank by the principal defendant, there must be an accounting for the resultant profit. This claim is on the theory that, when collateral is pledged incident to a loan, the bank, as pledgee, in the event it seeks to enforce its right by sale of collateral, acts as a trustee for the pledgor and is bound to proceed in good faith and account for any and all sums received by it as pledgee and trustee incident to such transaction. It may be conceded that appellee’s contention in this particular is well founded, but it is not applicable to the facts in this case. No trust relation or duty to account, in the manner asserted by appellee, arises unless and until there is a sale by the pledgee of the pledgor’s property. Here the sale from which the $16,000 profit arose was not a sale of the pledg- or’s stock, and hence the pledgee (the garnishee defendant) was under no obligation to account therefor to Joel Stockard So Company. The latter company was in no way a party to the contract of sale. Its stock was not sold. The identical 697 shares of stock pledged by Joel Stockard So Company to the bank were produced at the trial of the garnishment issue. The bank as pledgee was under no obligation to sell the pledgor’s stock. Allen v. Hook, 198 Mich. 122 (L. R. A. 1918 A, 441). Not being liable to Joel Stockard & Company, the bank is not liable as garnishee defendant to plaintiff herein. Kidd v. Minnesota Atlantic Transit Co., 261 Mich. 31.
In view of the above determination, it is not necessary to discuss other questions raised in appellant’s brief. The judgment entered in the circuit court is set aside, and the case remanded, with directions to enter judgment in accordance herewith. Costs to appellant.
McDonald, C. J., and Clark, Potter; Sharpe, Wiest, and Butzel, JJ., concurred. Fead, J., did not sit. | [
2,
17,
-2,
-13,
7,
12,
36,
-12,
-5,
0,
-33,
-6,
4,
41,
57,
-52,
0,
-30,
6,
-52,
22,
-38,
9,
3,
-36,
6,
-25,
-8,
34,
-14,
-36,
-10,
-30,
23,
-21,
42,
-22,
27,
-2,
-7,
-9,
-6,
30,
23,
6,
29,
-22,
-40,
8,
-10,
26,
12,
-7,
-26,
-7,
17,
7,
0,
-39,
5,
18,
-31,
54,
-48,
5,
-19,
0,
39,
21,
-8,
-55,
12,
23,
9,
37,
-34,
-11,
2,
-7,
-61,
26,
-9,
17,
4,
-32,
3,
-20,
-9,
-19,
27,
-26,
42,
-30,
-29,
-33,
34,
-20,
5,
36,
48,
-7,
-26,
-60,
-4,
0,
14,
-9,
-79,
-11,
18,
25,
-22,
47,
-7,
-5,
-22,
-23,
-44,
19,
41,
32,
15,
16,
-25,
41,
-5,
6,
-27,
-28,
-12,
37,
5,
-87,
54,
6,
29,
-17,
-46,
7,
-18,
48,
-40,
-13,
-22,
-22,
1,
54,
-28,
-11,
-17,
-91,
19,
8,
-8,
24,
17,
21,
-33,
-6,
-57,
12,
-6,
6,
-3,
-45,
-21,
7,
10,
-40,
14,
16,
47,
-1,
-43,
-2,
10,
50,
-74,
-36,
48,
-2,
48,
-3,
35,
27,
-9,
-19,
-37,
19,
5,
8,
10,
-10,
13,
-36,
11,
50,
-14,
3,
14,
27,
-42,
0,
42,
23,
-30,
39,
-19,
-6,
11,
3,
23,
22,
-30,
-32,
20,
19,
-60,
7,
-10,
4,
13,
-32,
-1,
12,
-48,
40,
-42,
32,
5,
-25,
-77,
-28,
1,
-19,
0,
34,
-4,
61,
6,
-23,
-17,
-7,
-48,
-4,
-8,
-53,
-15,
-23,
25,
0,
-25,
-59,
28,
-11,
-42,
-31,
-26,
-37,
7,
50,
47,
-38,
4,
-13,
-29,
-6,
28,
-84,
11,
9,
-54,
24,
4,
-16,
-53,
-6,
-10,
-31,
13,
38,
-3,
27,
39,
7,
10,
5,
-3,
8,
37,
36,
62,
23,
21,
18,
37,
-49,
0,
64,
23,
-35,
0,
24,
12,
-22,
4,
-9,
-62,
-15,
-18,
55,
-22,
-51,
-39,
37,
-33,
-11,
16,
22,
-15,
13,
-4,
-28,
-12,
48,
-12,
2,
-25,
-13,
-14,
15,
-5,
-41,
-19,
-22,
-35,
37,
-5,
35,
2,
3,
-13,
29,
25,
12,
-17,
13,
11,
12,
-16,
-34,
-17,
-2,
35,
23,
-5,
-14,
21,
-31,
43,
46,
-23,
11,
-68,
17,
12,
6,
31,
34,
82,
24,
13,
18,
-13,
-16,
-17,
-72,
-31,
4,
39,
26,
-31,
36,
-10,
19,
8,
-12,
-18,
-50,
11,
-37,
4,
33,
43,
-21,
-44,
0,
-35,
-32,
-34,
16,
10,
17,
30,
-66,
-28,
-17,
-7,
-26,
14,
-1,
-59,
-33,
17,
-36,
9,
20,
22,
38,
1,
42,
4,
5,
-37,
23,
-5,
0,
30,
-38,
29,
-43,
35,
10,
30,
51,
12,
-32,
6,
10,
26,
25,
-1,
26,
21,
57,
3,
-9,
-34,
16,
68,
-5,
-28,
19,
6,
16,
33,
11,
-23,
17,
7,
46,
-47,
27,
63,
-31,
-11,
8,
-2,
3,
11,
-17,
9,
7,
35,
-36,
-4,
0,
-5,
26,
23,
24,
28,
24,
-43,
-64,
-36,
-20,
-16,
-14,
16,
-4,
-22,
23,
-5,
39,
-13,
8,
0,
12,
-11,
21,
-10,
-16,
-25,
0,
12,
-36,
-77,
-26,
36,
-14,
-8,
4,
51,
23,
34,
-22,
48,
17,
13,
4,
26,
-68,
26,
-16,
-2,
1,
26,
0,
14,
-34,
-1,
-29,
0,
32,
20,
-7,
3,
24,
-13,
-52,
56,
-39,
6,
-9,
-2,
7,
-41,
25,
-39,
-6,
-61,
63,
6,
17,
26,
-10,
-16,
5,
-22,
-39,
50,
1,
-21,
86,
-29,
10,
-46,
-13,
-47,
-21,
-6,
-5,
0,
18,
-14,
-24,
19,
20,
-42,
-32,
-28,
14,
-77,
-37,
33,
51,
4,
13,
32,
36,
-17,
7,
-40,
13,
-70,
12,
-4,
37,
46,
6,
-11,
-11,
0,
41,
-64,
-38,
50,
0,
5,
57,
14,
-22,
25,
1,
-69,
6,
4,
-46,
-2,
2,
7,
25,
-3,
10,
21,
-16,
-42,
10,
0,
15,
-55,
-9,
-4,
-20,
19,
-32,
19,
-37,
50,
-42,
-13,
9,
0,
61,
-44,
-31,
32,
11,
20,
-15,
56,
56,
31,
-1,
-26,
26,
11,
-7,
-60,
26,
-27,
-26,
41,
36,
-43,
15,
17,
25,
31,
11,
-38,
27,
-4,
40,
19,
-13,
18,
-12,
29,
-25,
6,
-8,
8,
-53,
-69,
-10,
11,
17,
-46,
18,
16,
-51,
-2,
11,
-2,
-19,
4,
-27,
-35,
22,
8,
-48,
34,
10,
-26,
-29,
-22,
11,
-13,
60,
-46,
-25,
33,
29,
20,
2,
5,
-60,
20,
-57,
-5,
28,
-2,
1,
-45,
33,
-21,
-27,
10,
-9,
42,
10,
66,
-33,
50,
9,
-47,
-37,
-11,
40,
13,
12,
15,
-36,
8,
21,
72,
-21,
-9,
17,
40,
-31,
-2,
-7,
52,
-5,
-58,
-21,
13,
-18,
18,
-25,
-3,
23,
5,
-14,
-20,
-29,
-40,
-9,
-11,
-12,
33,
19,
14,
38,
-10,
27,
0,
31,
-29,
-1,
8,
-15,
-58,
11,
57,
7,
24,
7,
-17,
-34,
-67,
-6,
24,
81,
45,
47,
-52,
-40,
3,
16,
-7,
33,
-8,
33,
-8,
36,
6,
-25,
8,
30,
-10,
-8,
65,
-40,
-1,
-32,
-15,
-4,
31,
-1,
-21,
-20,
19,
-44,
-18,
5,
39,
-29,
-55,
16,
11,
18,
-22,
34,
2,
33,
-32,
-4,
-29,
-70,
-13,
47,
13,
36,
-30,
-20,
-49,
2,
-27,
-5,
-17,
-5,
-2,
1,
5,
-4,
-9,
23,
14,
-53,
-15,
24,
-2,
-47,
22,
-21,
-24,
-14,
80,
-41,
68,
18,
67,
43,
-18,
6,
-33,
24,
13,
-29,
12,
-13,
-5,
32,
-12,
8,
7,
-1,
-23,
-27,
9,
42,
-12,
7,
-43,
46,
-27,
20,
-31,
-17,
0,
-32,
-18,
-18,
3,
-12,
51,
2,
24,
21,
4,
-40,
31,
52,
-1,
30,
38,
4,
-13,
-43,
26,
-15,
6,
59,
10,
11,
4,
-14,
-18,
-20,
53,
10,
-40,
-12,
-62,
17,
8,
28,
-17,
14,
-12,
-33,
-28,
11,
-4,
-56,
-35,
25,
1,
8,
21,
-20,
-45,
-20,
-34,
-14,
20,
5,
22,
-13,
19,
-6,
9,
46,
7,
-25,
-39,
10,
-51,
-37,
-25,
-17,
38,
19,
-10,
-7,
10,
24,
-27,
-45,
41,
-37,
-19,
-28,
29,
-40,
36,
55,
33,
44,
0,
34,
-7,
30,
-17,
-35,
-19,
26,
-6,
60,
-18,
23,
-9,
4,
21,
-27,
-9,
-5,
-19,
45,
42,
-1,
-18,
16,
23,
16,
43,
10,
-4,
9,
83
] |
Sharpe, J.
The question here presented is whether, under an assignment of a land contract to a bank, made as an additional security for indebtedness then owing it, in which a blank form was used and which contained the usual assumption of, and agreement to pay the amount due thereon, the assignee may be held liable for a deficiency arising upon a sale of the property under a foreclosure proceeding in equity. There was dispute as to whether the assumption provision had been erased before execution of the assignment. The trial court found that it had not, and held that the assignee was liable under it for the deficiency.
The vendee in a land contract is personally liable to the vendor for such part of the purchase price as remains unpaid. Payment may be enforced in an action at law, or by a personal decree for deficiency upon a sale of the property in a foreclosure proceeding. When a vendee disposes of his contract interest, he must make an assignment thereof in writing to the purchaser. He is not relieved from liability thereby unless release be made by the vend- or. To protect himself as far as possible, a provision is usually inserted in the assignment under which the purchaser as assignee assumes and agrees to pay the amount unpaid upon the contract. This agreement may be enforced by the vendee.
“As between the assignor and the assignee, the latter becomes the principal debtor and the former a surety.” Barnard v. Huff, 252 Mich. 258, 264 (77 A. L. R. 259).
In a proceeding to foreclose the contract, the assignee may be joined as a party defendant. His undertaking will be held to inure to the benefit of the vendor, and, under the doctrine of subrogation, and to avoid a multiplicity of suits, decree may also be had against him for the recovery of any deficiency resulting from the sale of the property.
But when an assignment is made for security only, even if it be, on its face, unconditional, the vendee still retains an equitable interest in the contract, and, on satisfaction of the obligation secured thereby, he is entitled to a reassignment thereof. In such a case there is no assumption of the contract debt by the assignee, and the neglect to erase the provision therefor in the printed form of the assignment creates no personal liability on his part. He does not thereby become “the principal debtor” and the assignor “a surety.” The right of the vendor to be subrogated to that of the vendee is dependent upon the liability of the assignee to the vendee. The vendee in this case would certainly have no legal claim against the assignee if he was compelled to pay a deficiency, and if no such liability exists there is no obligation to inure to the benefit of the vendor.
It appears that, when foreclosure was threatened, the plaintiffs, as vendors, offered to release the vendee from personal liability if he would surrender his contract, and that he stated to the officials of the assignee that the property would not sell for more than the amount due thereon and requested its reassignment to him and that the assignee refused to do so. This fact is stressed as indicating that the assignee claimed to be the owner of the contract.
It is undisputed that the assignment was made as additional security to the vendee’s indebtedness to the bank. Soon after it was executed and delivered, the bank advanced to the vendee the- further sum of $2,000, with which he made payment to the vendors on the contract. As assignee it surely had the right to retain its interest under the assignment in the hope that it might thereby realize some payment on the indebtedness of. the vendee to it out of the proceeds of the sale of the property.
The decree entered, in so far as it adjudges the defendant bank to be liable for any deficiency arising upon a sale of the premises, is reversed and set aside, with costs to it, and one may be here entered eliminating such provision.
McDonald, C. J., and Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., did not sit. | [
-41,
-15,
-42,
-28,
-23,
3,
53,
19,
-3,
39,
42,
-13,
0,
51,
-13,
-2,
-15,
14,
-63,
16,
-38,
-51,
-40,
2,
29,
30,
13,
-44,
17,
33,
-4,
26,
-76,
54,
13,
19,
-51,
-40,
-6,
-31,
54,
12,
-11,
5,
-8,
-6,
-26,
-45,
14,
-33,
63,
34,
39,
-24,
-70,
31,
-10,
-30,
-4,
16,
-14,
-45,
-53,
-53,
-64,
-11,
20,
42,
33,
0,
8,
-67,
-8,
8,
15,
18,
-32,
9,
-43,
-19,
30,
-52,
-10,
-31,
5,
33,
-18,
7,
-62,
11,
-40,
-9,
8,
16,
-60,
13,
33,
57,
0,
17,
4,
-22,
-34,
62,
28,
-29,
-42,
-74,
6,
-30,
58,
1,
22,
-21,
-31,
-1,
-45,
41,
28,
-18,
4,
29,
14,
-81,
-26,
-4,
-5,
-37,
-96,
-2,
12,
-18,
-88,
49,
-48,
4,
-16,
13,
-35,
-22,
0,
-20,
19,
-43,
-7,
24,
2,
-68,
-15,
1,
20,
-34,
19,
37,
-25,
-35,
-13,
-52,
-8,
-104,
49,
-38,
21,
-34,
-65,
27,
-32,
52,
-24,
45,
54,
18,
-15,
-1,
11,
-51,
16,
-13,
-7,
-30,
46,
0,
-30,
-20,
17,
5,
-64,
29,
-2,
7,
-31,
-32,
-7,
85,
-27,
29,
-50,
38,
3,
-25,
-17,
-11,
-14,
28,
-24,
-6,
-7,
-11,
17,
47,
-56,
8,
-26,
-28,
-34,
4,
52,
1,
-7,
4,
9,
17,
-32,
-25,
-7,
-37,
3,
-2,
16,
11,
38,
-26,
25,
77,
-10,
1,
25,
-21,
-17,
41,
40,
4,
-25,
-7,
-11,
-34,
-8,
-13,
-43,
-1,
-54,
36,
-34,
41,
15,
-11,
-28,
-13,
-41,
-24,
-19,
18,
-17,
2,
19,
-14,
10,
7,
9,
-16,
1,
27,
-18,
20,
-30,
8,
-43,
6,
-81,
8,
8,
10,
-47,
56,
1,
-12,
28,
56,
-17,
5,
19,
-32,
26,
-33,
54,
14,
0,
-13,
25,
-25,
-10,
-31,
42,
66,
-2,
26,
-18,
25,
-32,
-40,
2,
50,
-40,
5,
-20,
6,
54,
-29,
10,
1,
25,
27,
35,
8,
20,
9,
51,
-36,
13,
61,
6,
-51,
-19,
-41,
14,
-4,
30,
12,
-82,
-22,
3,
17,
34,
-21,
61,
3,
-5,
-33,
-66,
38,
-12,
80,
-32,
49,
-26,
-14,
45,
6,
11,
-2,
39,
8,
-2,
-16,
-18,
-7,
-39,
53,
-8,
44,
30,
40,
-25,
-61,
-28,
13,
-2,
38,
-29,
24,
18,
26,
-4,
26,
27,
-11,
-50,
6,
12,
-10,
-35,
-32,
-18,
3,
-3,
-13,
33,
-24,
-48,
-100,
30,
46,
-17,
-18,
-71,
12,
9,
-59,
2,
30,
20,
49,
28,
-40,
-58,
17,
47,
14,
33,
31,
17,
-36,
4,
17,
3,
-42,
-20,
14,
-31,
15,
-20,
11,
5,
-24,
46,
-38,
-65,
-42,
-3,
38,
-7,
-22,
-20,
5,
5,
45,
-23,
-5,
8,
-24,
32,
0,
9,
21,
26,
-9,
50,
-48,
-4,
4,
8,
-26,
30,
-16,
15,
-33,
-29,
-55,
4,
5,
-47,
7,
43,
4,
6,
4,
-68,
7,
-30,
32,
18,
-17,
23,
5,
-40,
-24,
-21,
0,
-22,
8,
15,
-19,
2,
-9,
11,
-38,
23,
4,
9,
68,
45,
68,
30,
29,
-2,
-5,
-16,
-61,
31,
63,
-40,
-38,
33,
44,
39,
19,
40,
-42,
30,
27,
39,
38,
-38,
-58,
28,
34,
-23,
52,
24,
19,
9,
-25,
22,
-53,
-29,
58,
13,
-7,
-17,
-37,
-58,
67,
7,
67,
10,
53,
48,
-5,
-16,
12,
-18,
-18,
79,
47,
-24,
28,
41,
-19,
28,
3,
-14,
46,
-17,
-28,
49,
-14,
40,
-21,
-23,
-44,
-37,
-66,
-28,
40,
-28,
-25,
-8,
-59,
3,
-3,
-31,
-19,
11,
-32,
41,
41,
13,
11,
51,
20,
58,
20,
1,
-28,
-3,
-29,
-11,
22,
-5,
28,
-70,
49,
-44,
-16,
26,
-52,
40,
0,
4,
-1,
-7,
2,
53,
53,
14,
15,
45,
-35,
-25,
13,
29,
67,
-6,
-8,
-9,
13,
41,
-21,
-21,
3,
41,
-16,
28,
12,
-51,
17,
50,
-44,
20,
-37,
-17,
-21,
-36,
-10,
10,
2,
-23,
4,
79,
-44,
-22,
65,
28,
-10,
53,
-15,
-71,
-27,
25,
13,
15,
-43,
-5,
19,
9,
27,
-4,
-2,
-14,
-19,
30,
24,
-26,
-36,
19,
35,
21,
20,
37,
-7,
19,
-12,
19,
5,
-50,
0,
8,
-44,
44,
31,
35,
2,
-55,
-80,
34,
-57,
40,
23,
3,
0,
62,
-37,
16,
-14,
-27,
34,
-43,
11,
-71,
22,
73,
26,
-2,
-1,
-18,
12,
-3,
1,
-22,
-6,
-37,
-13,
41,
-73,
25,
30,
1,
-18,
-15,
-2,
-18,
-29,
-20,
-24,
23,
-6,
47,
24,
-14,
2,
-5,
43,
-4,
6,
-26,
-15,
-36,
19,
15,
-7,
18,
-9,
25,
0,
-8,
0,
-43,
14,
-26,
-5,
-23,
19,
-5,
16,
6,
-27,
-24,
-54,
30,
-46,
-31,
-19,
-28,
4,
29,
11,
48,
-46,
58,
-17,
6,
-26,
58,
-5,
11,
-41,
9,
-34,
31,
23,
18,
16,
-48,
13,
-39,
-26,
22,
0,
-16,
-27,
-3,
-10,
-61,
32,
69,
59,
-11,
43,
2,
-20,
-5,
-26,
-30,
42,
1,
12,
-31,
55,
26,
-24,
-51,
72,
-1,
-14,
-79,
49,
4,
-37,
-26,
25,
0,
0,
0,
34,
10,
-15,
-36,
-21,
1,
-13,
-12,
-48,
-3,
-24,
42,
-29,
-39,
25,
-15,
-7,
-20,
12,
37,
16,
0,
-5,
-31,
27,
0,
-13,
43,
-6,
-13,
11,
35,
-6,
-22,
42,
34,
-19,
57,
28,
-2,
56,
28,
6,
20,
-28,
-1,
-12,
-18,
61,
-32,
52,
-66,
1,
41,
-3,
-20,
47,
47,
14,
-68,
30,
0,
-34,
9,
-11,
-41,
13,
21,
16,
-25,
-57,
-34,
20,
-33,
49,
31,
2,
48,
-16,
-4,
-6,
-14,
54,
-7,
-19,
35,
23,
29,
7,
-9,
-34,
32,
-20,
-5,
39,
1,
16,
6,
56,
-1,
78,
76,
-66,
0,
23,
7,
-44,
14,
-55,
-27,
-11,
-25,
-20,
26,
-54,
18,
21,
-55,
56,
20,
18,
19,
-14,
-39,
-23,
-26,
-63,
-33,
31,
-1,
-46,
43,
39,
49,
-20,
-55,
-36,
16,
-4,
21,
-24,
19,
-8,
47,
-37,
-6,
-3,
-4,
-46,
-20,
44,
-14,
20,
32,
-12,
-36,
-79,
15,
23,
17,
47,
-52,
1,
0,
13,
25,
6,
18,
4,
-26,
-18,
-37,
-32,
39,
26,
-12,
13,
-19,
13,
17,
0,
0,
-8,
-6,
29,
-21,
-27,
57,
33,
-11,
60
] |
North, J.
In an assumpsit suit against the principal defendant and before judgment therein, plaintiffs garnisheed the Ernst Kern Company. Both the principal defendant and the garnishee defendant moved to quash the writ of garnishment on the ground that the suit was against a national bank and garnishment proceeding could not be instituted prior to judgment. In so asserting, defendants rely on 12 USCA, § 91 (R. S. § 5242), which in part reads:
“No attachment, injunction, or execution shall be issued against such association or its property before final judgment in any suit, action, or proceeding in any State, county, or municipal court. ’ ’
The motions to quash were granted. Leave having been obtained, plaintiffs have appealed.
Reference is not expressly made to garnishment proceedings in the above-quoted statute; and appel lants contend that since garnishment is not mentioned it is not included within the statutory prohibition. On the other hand, appellees assert, and the circuit judge held, that garnishment is a form of attachment and should be held to be within the purpose and spirit of the quoted statutory provision.
Obviously the purpose of the quoted congressional act is to prohibit the seizing or impounding of assets of national banks by a mesne process before final judgment. It seeks to prevent impairment of a bank’s ability to function normally. It is common knowledge that a large portion of the assets of any bank consists of debts due the bank. Doubtless such assets usually exceed the value of a bank’s tangible assets which would be subject to attachment. Hence the purpose of the quoted act would not be accomplished should the word “attachment” as used therein be so strictly and narrowly construed as to exclude our writ of garnishment.
“A thing which is within the spirit of a statute is within the statute, although not within the letter; and a thing within the letter is not within the statute, unless within the intention.” Common Council of City of Detroit v. Rush, 82 Mich. 532, 542 (10 L. R. A. 171).
‘ ‘ The intention of the legislature, when discovered, must prevail, any existing rule of construction to the contrary notwithstanding.” Michigan Central R. Co. v. State, 148 Mich. 151.
“But the primary object of all interpretation or construction of statutes is, to ascertain the real intention of the legislature; and no specific or artificial rules of interpretation can be of any value, which do not contribute to this end.” People, ex rel. Whipple, v. Judge of Saginaw Circuit, 26 Mich. 342, 344.
See, also, Von Hoene v. Barber, 215 Mich. 538.
While there are in our State well-defined distinctions between . garnishment and attachment, still each impounds assets of the defendant, which assets in general are held subject to the further order and judgment of the court after final adjudication of the principal case. In our former decisions it has been said:
“The process of garnishment is in the nature of an equitable attachment.” Bethel v. Judge of Superior Court, 57 Mich. 379, 381.
See, also, J. T. Sinclair Co. v. I. T. Becker Coal Co., 263 Mich. 617.
It is unnecessary to cite numerous like decisions from other courts. In other jurisdictions process like unto our writ of garnishment is known by other names, such as attachment, trustee process, or factorizing process. See Drake on Attachment (7th Ed.), §451.
“Garnishment has very pfoperly been defined as an attachment by means of which money or property of a debtor in the hands of third parties, which cannot be levied upon, may be subjected to the payment of the creditor’s claim.” 12 R. C. L. p. 775.
Holding now, as we have formerly held, that garnishment is a species of attachment, or at least in the nature of attachment, it follows that plaintiffs had no more right to proceed in garnishment prior to final judgment than they would have had to institute attachment proceedings. The impropriety of instituting such proceeding in violation of the quoted enactment and the right to have such proceeding dismissed have been determined by the Supreme Court of the United States. Pacific National Bank v. Mixter, 124 U. S. 721 (8 Sup. Ct. 718); Van Reed v. People’s National Bank of Lebanon, 198 U. S. 554 (25 Sup. Ct. 775, 3 Ann. Cas. 1154). The syllabus in the latter case reads as follows:
“National banks are q^asi-public institutions, and for the purpose for which they are instituted are national in their character, and, within constitutional limits, are subject to control of Congress, and not to be interfered with by State legislative or judicial action, except so far as Congress permits.”
The order and judgment of the circuit court quashing the garnishment proceeding is affirmed, with costs to defendant First National Bank — De- . troit.
McDonald, C. J., and Weádock, Potter, Sharpe, Wiest, and Btttzel, JJ., concurred. Fead, J., did not sit. | [
-38,
-11,
18,
-9,
32,
21,
60,
-23,
-25,
5,
-15,
6,
1,
28,
8,
14,
4,
-37,
30,
35,
9,
-40,
40,
-11,
34,
33,
28,
-12,
63,
-26,
-44,
-20,
-11,
56,
-15,
-84,
-2,
-2,
47,
-32,
-26,
2,
19,
32,
-7,
-4,
9,
-12,
10,
-45,
37,
-32,
-33,
20,
-7,
32,
-5,
-16,
-39,
40,
-14,
-38,
25,
-16,
-34,
-7,
13,
23,
1,
-34,
-25,
37,
21,
-10,
15,
-66,
-30,
17,
-25,
-10,
-13,
-59,
-30,
22,
13,
-5,
-47,
41,
-9,
-21,
-62,
27,
-75,
-19,
-22,
2,
12,
18,
24,
-1,
-8,
-5,
-27,
42,
-13,
-6,
17,
-83,
34,
3,
19,
-26,
-10,
-46,
-52,
-35,
-30,
-17,
29,
-3,
30,
9,
19,
16,
0,
-7,
-32,
-10,
8,
28,
22,
30,
-45,
24,
-8,
24,
-10,
-31,
-25,
-45,
-11,
-34,
2,
-36,
-18,
4,
53,
-4,
-19,
-27,
-44,
21,
17,
27,
-21,
12,
-1,
-16,
20,
-48,
4,
26,
-32,
22,
-6,
-43,
-25,
-5,
21,
35,
-29,
35,
-25,
17,
-6,
4,
-2,
-35,
1,
-5,
0,
53,
-5,
46,
16,
-18,
-19,
-22,
-5,
-42,
-2,
12,
4,
41,
-24,
53,
27,
15,
13,
-24,
5,
-17,
-16,
16,
-13,
-9,
82,
-5,
7,
48,
-40,
5,
7,
-8,
-31,
-23,
-8,
-21,
0,
22,
-12,
42,
-33,
12,
-35,
-13,
-18,
-34,
14,
7,
-10,
-18,
-25,
11,
11,
23,
47,
3,
59,
27,
-30,
37,
-30,
-30,
29,
-29,
-20,
-2,
-3,
-17,
-25,
-37,
24,
55,
-17,
-18,
-41,
-40,
-44,
-21,
-2,
62,
-28,
2,
-17,
-38,
14,
22,
-45,
43,
-1,
-9,
35,
62,
23,
-48,
-19,
-17,
-19,
-7,
-34,
14,
-12,
-9,
-17,
7,
-2,
-26,
32,
29,
14,
-11,
-23,
79,
-1,
74,
-14,
-23,
11,
81,
-25,
-38,
10,
16,
0,
-32,
-23,
-18,
0,
-56,
23,
-1,
-30,
5,
34,
21,
9,
31,
31,
-38,
25,
35,
4,
-33,
17,
-5,
-7,
-33,
-20,
-4,
34,
-46,
2,
21,
7,
-8,
21,
-25,
-34,
-23,
16,
0,
3,
-8,
-21,
42,
-2,
41,
22,
8,
-49,
21,
-19,
14,
66,
-76,
-36,
30,
-36,
47,
-19,
2,
19,
-79,
34,
36,
-18,
-17,
21,
29,
-53,
15,
-10,
-12,
-62,
-17,
-48,
10,
10,
21,
-16,
-22,
48,
42,
9,
-23,
-3,
17,
11,
38,
2,
-22,
2,
66,
6,
-41,
-38,
-9,
-10,
10,
-22,
50,
-17,
-21,
-24,
-18,
-3,
-50,
-12,
16,
2,
4,
15,
63,
-34,
32,
31,
1,
87,
-43,
15,
26,
-16,
-46,
-24,
-12,
-7,
-11,
-24,
-17,
-14,
30,
2,
-3,
2,
31,
-30,
-38,
-6,
7,
12,
-19,
17,
17,
-48,
-12,
-12,
-27,
34,
-11,
24,
-26,
-26,
-18,
14,
-10,
13,
-6,
-3,
13,
40,
-62,
6,
82,
-12,
-3,
-2,
-29,
30,
-3,
2,
-37,
-5,
54,
-21,
13,
-8,
51,
-11,
-8,
-2,
26,
29,
-24,
-28,
0,
-20,
-33,
2,
-26,
18,
5,
32,
13,
13,
-26,
-44,
0,
-3,
3,
35,
31,
30,
-6,
47,
4,
-51,
-38,
11,
43,
-1,
23,
68,
46,
-8,
28,
-15,
9,
34,
-2,
1,
-3,
-106,
2,
-95,
18,
6,
23,
-1,
1,
9,
-26,
22,
-21,
6,
24,
0,
7,
7,
17,
-31,
51,
-11,
37,
-17,
14,
-53,
-42,
-6,
-6,
-52,
-35,
57,
-5,
-18,
5,
-27,
-3,
66,
-16,
-59,
74,
-2,
-22,
58,
-15,
11,
-26,
-44,
-73,
-25,
11,
22,
-11,
-17,
-1,
39,
-37,
7,
-44,
-47,
22,
-17,
-51,
19,
14,
-17,
-28,
-9,
-19,
13,
30,
-26,
7,
-20,
-49,
-65,
24,
6,
51,
-7,
22,
-13,
-23,
15,
-29,
11,
-38,
8,
-2,
20,
7,
-17,
18,
-24,
-50,
-12,
-18,
7,
10,
4,
-9,
2,
-4,
-5,
-8,
-10,
7,
12,
-20,
12,
3,
11,
-47,
-7,
11,
-18,
23,
6,
-26,
-8,
18,
6,
37,
15,
-71,
12,
59,
44,
0,
18,
54,
23,
0,
36,
14,
20,
9,
31,
-44,
8,
-15,
-13,
-14,
11,
27,
16,
44,
0,
34,
21,
-41,
24,
24,
56,
19,
-32,
6,
38,
-52,
-54,
-17,
-3,
20,
-20,
12,
26,
-31,
17,
-11,
39,
18,
-31,
14,
29,
-2,
-39,
33,
-23,
2,
11,
-61,
0,
-2,
-6,
-22,
-81,
-12,
60,
19,
21,
-31,
16,
-10,
9,
56,
8,
40,
-52,
13,
-23,
-21,
-5,
-4,
-27,
-35,
51,
-33,
-30,
42,
-3,
-41,
-7,
47,
-34,
27,
19,
-19,
-20,
31,
4,
56,
26,
36,
-20,
12,
-28,
42,
21,
-9,
14,
17,
39,
15,
-70,
28,
7,
-36,
-14,
20,
-23,
48,
-10,
9,
14,
-1,
-19,
6,
-3,
-42,
-25,
-27,
20,
16,
-3,
10,
-15,
-21,
6,
-21,
51,
-8,
16,
36,
-11,
5,
26,
7,
2,
31,
19,
-20,
-37,
-55,
14,
16,
10,
7,
-18,
1,
-24,
-1,
4,
-8,
-3,
15,
-3,
26,
38,
-3,
4,
-62,
22,
-18,
13,
30,
-50,
23,
-47,
-56,
3,
73,
-9,
-17,
11,
29,
5,
-41,
-12,
24,
26,
-21,
-18,
13,
37,
17,
40,
26,
96,
-34,
-33,
-17,
-29,
-26,
-10,
35,
6,
2,
7,
-58,
26,
-15,
-24,
35,
53,
0,
-12,
-15,
11,
-2,
22,
22,
-4,
-32,
19,
-40,
-98,
10,
22,
6,
37,
40,
-41,
36,
7,
-7,
39,
-4,
-33,
-15,
10,
56,
-6,
-37,
-12,
27,
-27,
-38,
-13,
-2,
28,
36,
-21,
40,
72,
4,
-2,
-93,
-16,
-19,
-13,
-17,
-13,
32,
-5,
15,
27,
57,
-10,
26,
-9,
43,
19,
23,
5,
57,
18,
-28,
24,
33,
39,
4,
16,
-40,
-22,
13,
21,
47,
-7,
22,
-51,
-1,
-41,
14,
-2,
-55,
-36,
-28,
31,
29,
-63,
-4,
17,
7,
-11,
-30,
0,
-9,
-9,
-28,
-33,
-7,
31,
-19,
21,
-41,
-4,
-4,
-37,
13,
-7,
14,
-15,
-20,
49,
8,
-7,
18,
-13,
-46,
0,
-9,
-23,
-32,
-53,
-15,
56,
2,
-48,
41,
47,
-47,
18,
41,
-27,
6,
-2,
7,
0,
-3,
36,
4,
33,
15,
-1,
-18,
16,
-20,
-29,
12,
-5,
8,
46,
-33,
30,
15,
-28,
10,
12,
7,
-5,
-32,
26,
39,
5,
-24,
-41,
22,
-7,
25,
14,
7,
-48,
65
] |
Sharpe, J.
The plaintiff, in April, 1930, was “a selling corporation,” with its place of business and warehouse on Kirby avenue in the city of Detroit. Defendant is a manufacturing concern, located on Bellevue avenue in that city. On April 17th of that year, the defendant gave plaintiff a written order for a “3 % Model A — 5 Hole Cleveland Automatic” at a price of $1,800, on which a “4-Spindle Brindley” was to be traded in for $300 as a down payment, “balance of amount to be determined later. ’ ’
On April 23d following, defendant gave plaintiff another written order for two other somewhat similar machines at the same price, on which two other machines were taken in part payment at $300 each, “terms to be determined later.” The defendant made certain payments thereon, amounting to $1,450, the last one- on June 26, 1931, leaving a balance of $3,050, to recover which this action was brought on November 30, 1932.
The facts are not in dispute. It seems to be clearly established that these machines were sold on an understanding between Herbert C. Roushkolb, plaintiff’s president, and Alfred H. McCracken, defendant’s vice-president and general manager, that the balance due thereon should be paid by the defendant out of the profits made by it in the use of the machines in its manufacturing business. Mr. Mc-Cracken made report of the offer of plaintiff to sell to the hoard of directors of his company, and it authorized the purchase on the above terms. Delivery was made and accepted, and the machines taken by plaintiff in part payment turned over to it.
The trial court found that the proofs did not disclose that any moneys were due plaintiff under the sales contracts; that the terms of payment were not “determined later,” and the contracts unenforceable for that reason, and entered a judgment for the defendant, from which the plaintiff has appealed.
There was here a sale and delivery by plaintiff to defendant of three machines at a price agreed upon. Three machines were accepted in part payment at $300 each. It appears that defendant made repairs on the machines at a cost to it of about $500. It also appears that it has sold goods manufactured by these machines amounting to more than $11,000. It does not appear that any part of this sum was set apart as “profits” due plaintiff on the contracts, although it made certain payments thereon. It also clearly appears from the testimony of Mr. McCracken that no percentage of profits to be applied on the payments was mentioned at the time the sales were made.
Had there been an agreement in this respect, and had defendant credited, and thereafter paid to plaintiff, the amounts thereof when received by it, a different question would be presented. But on the record before us the plaintiff has parted with the title to its property, and under the contracts of sale as construed by the court has no lawful means of securing payment therefor.
The title to these machines passed to the defendant when delivery was made to it. It afterwards made substantial repairs thereon. The price was agreed upon. The time within which payment was to be made was left indefinite. The defendant did not credit plaintiff with any specific percentage of its profits on the goods manufactured by the machines, nor did it make proof as to what would be a reasonable percentage thereof to apply on its indebtedness. It thereby created a condition rendering it both uncertain and indefinite as to the time at which plaintiff should receive any payment and the amount thereof.
Under these circumstances the law will imply that performance was intended within a reasonable time. McArthur v. City of Cheboygan, 156 Mich. 152; Martin v. DeYoung, 232 Mich. 112; 13 C. J. p. 683. Two and one-half years elapsed between the time of the sales and the time when this action was brought. In the absence of proof to the contrary, and in our opinion the record discloses none, this must be considered a reasonable time.
The judgment is reversed and set aside, with costs to plaintiff, and the cause remanded with direction to the trial court to enter a judgment for plaintiff for the amount unpaid, $3,050, and interest from the date of the commencement of suit.
McDonald, C. J., and Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
-7,
11,
11,
-42,
0,
-11,
-13,
-9,
-3,
5,
-33,
5,
-22,
17,
16,
11,
51,
-1,
17,
9,
33,
-78,
-3,
-38,
-14,
10,
-18,
-73,
4,
21,
-25,
7,
9,
40,
-43,
33,
-9,
17,
-11,
-33,
-3,
7,
-4,
30,
3,
-5,
53,
-14,
45,
-28,
39,
10,
30,
-57,
-44,
-37,
2,
53,
-43,
46,
22,
1,
44,
3,
2,
-23,
0,
0,
-23,
37,
-54,
-59,
44,
1,
9,
-37,
-17,
28,
-15,
-44,
10,
-39,
15,
8,
-30,
63,
13,
0,
-38,
-28,
-11,
32,
6,
75,
41,
-3,
6,
10,
-15,
18,
41,
25,
-21,
24,
8,
-27,
-17,
-27,
-29,
36,
0,
42,
38,
78,
15,
-19,
-11,
7,
28,
52,
8,
18,
-22,
-7,
34,
29,
-31,
-9,
9,
25,
19,
-9,
-3,
18,
21,
-6,
-17,
20,
-12,
47,
30,
28,
-16,
23,
19,
24,
-23,
27,
21,
-9,
-43,
-32,
16,
59,
31,
-39,
5,
-5,
22,
-24,
18,
4,
60,
7,
-49,
35,
-24,
-6,
-30,
1,
-7,
-6,
-27,
-46,
24,
13,
-33,
20,
-31,
-44,
-29,
20,
0,
-46,
-10,
-29,
22,
-6,
15,
16,
49,
-26,
-36,
-6,
-51,
9,
11,
-3,
30,
0,
74,
-46,
12,
-42,
-6,
-9,
-10,
24,
-31,
44,
-24,
-14,
41,
-60,
-22,
28,
-22,
-63,
23,
9,
44,
-27,
-19,
14,
-30,
-9,
32,
12,
17,
1,
-7,
32,
-31,
16,
-37,
-25,
-26,
-5,
7,
6,
-48,
-36,
4,
-5,
-6,
26,
-2,
-36,
-22,
23,
0,
3,
-47,
14,
-23,
-32,
-29,
-8,
35,
8,
-13,
54,
-26,
36,
30,
19,
13,
1,
-5,
35,
-66,
-32,
-14,
26,
-40,
-83,
-10,
25,
27,
-14,
-13,
-57,
-40,
-26,
43,
4,
-17,
14,
-44,
31,
11,
29,
23,
-23,
38,
27,
-3,
-18,
3,
-9,
-77,
7,
4,
-26,
39,
31,
-39,
-8,
-10,
-5,
-45,
-41,
-9,
4,
42,
-31,
-8,
13,
39,
-5,
-9,
68,
-27,
44,
6,
-4,
53,
-26,
27,
-29,
18,
22,
11,
14,
-29,
-43,
33,
2,
38,
-4,
-5,
60,
23,
1,
-11,
7,
31,
-14,
4,
-21,
-5,
-30,
-18,
30,
4,
-10,
39,
39,
-24,
43,
42,
-15,
13,
13,
-10,
0,
5,
-7,
-40,
78,
8,
28,
-70,
15,
5,
-44,
-44,
-14,
15,
32,
8,
0,
21,
-23,
5,
0,
32,
-12,
-33,
19,
-48,
29,
3,
8,
-11,
-46,
15,
-28,
-8,
-64,
23,
27,
-20,
16,
1,
-34,
27,
24,
1,
1,
-14,
-28,
6,
4,
-28,
-33,
21,
-4,
-21,
-16,
10,
29,
-53,
1,
66,
-24,
36,
15,
-4,
-11,
2,
33,
9,
-65,
8,
6,
-53,
51,
-15,
4,
-24,
-4,
-32,
22,
20,
-44,
-5,
21,
41,
-3,
33,
-3,
31,
16,
31,
-26,
8,
-36,
31,
-2,
-4,
-50,
14,
-19,
-52,
-9,
59,
-27,
12,
20,
-46,
31,
15,
-62,
14,
1,
13,
-21,
24,
-33,
-23,
9,
17,
16,
-37,
-13,
-56,
-3,
-9,
17,
45,
-35,
0,
1,
6,
38,
-13,
32,
6,
24,
-26,
-59,
50,
-20,
-39,
-19,
24,
-56,
8,
27,
-28,
-13,
-9,
-12,
40,
-13,
-5,
66,
17,
32,
32,
13,
-3,
21,
-8,
3,
19,
-27,
5,
-42,
10,
-29,
-27,
-19,
-14,
-43,
-20,
-37,
0,
4,
-16,
-12,
0,
-9,
-59,
-22,
-30,
-10,
6,
-5,
23,
0,
36,
7,
9,
-31,
-4,
-21,
-9,
28,
-47,
12,
5,
-4,
50,
-5,
-26,
-18,
4,
-37,
-9,
24,
47,
60,
-14,
-11,
1,
-6,
-28,
-9,
-5,
27,
-2,
-41,
-54,
-9,
27,
57,
9,
27,
-11,
-12,
20,
22,
19,
27,
-7,
39,
35,
-55,
23,
8,
-38,
-22,
-50,
-38,
-46,
19,
15,
-58,
18,
23,
-13,
-31,
14,
0,
-34,
-27,
10,
-25,
29,
1,
-43,
37,
31,
41,
15,
-8,
-48,
30,
-35,
-16,
15,
36,
-1,
-27,
56,
1,
-32,
-6,
-39,
-5,
31,
-23,
-18,
14,
-66,
-12,
-16,
-8,
-10,
-19,
75,
-34,
-21,
-5,
28,
-16,
-16,
-30,
18,
-13,
4,
-5,
33,
17,
-2,
-24,
24,
-22,
26,
41,
39,
-47,
-15,
13,
-37,
42,
5,
8,
12,
1,
-15,
34,
17,
9,
33,
-13,
15,
-25,
8,
15,
-18,
-50,
-9,
6,
30,
1,
-12,
-75,
41,
0,
-8,
45,
-17,
24,
-34,
21,
10,
0,
25,
-26,
-2,
-10,
-7,
53,
-29,
15,
-23,
-23,
10,
-4,
29,
-39,
2,
33,
10,
0,
-40,
-10,
9,
-14,
13,
-44,
-1,
33,
-42,
-51,
-53,
12,
9,
33,
19,
-5,
-37,
-30,
54,
13,
-1,
34,
-2,
62,
79,
11,
31,
-15,
6,
9,
-40,
-9,
-7,
5,
5,
-16,
8,
27,
5,
-27,
-22,
-45,
-16,
3,
-33,
11,
2,
-26,
-9,
3,
37,
-37,
32,
-33,
-8,
2,
-23,
-43,
0,
77,
54,
34,
32,
-56,
7,
3,
-37,
-8,
28,
-6,
15,
7,
27,
-16,
34,
-3,
13,
-27,
20,
-12,
73,
-39,
-21,
-8,
-12,
-58,
19,
-10,
-43,
4,
-33,
-10,
-5,
-21,
-42,
21,
-17,
2,
-19,
16,
-53,
55,
68,
-12,
16,
51,
-27,
51,
27,
-19,
-27,
-11,
-30,
-33,
-6,
50,
44,
33,
-38,
14,
-15,
-37,
-5,
17,
-9,
-31,
-1,
4,
11,
29,
8,
51,
45,
23,
-39,
2,
37,
-20,
-47,
-11,
13,
-9,
33,
48,
29,
-47,
-31,
39,
-32,
-7,
35,
35,
-15,
-14,
20,
12,
-10,
-4,
31,
-28,
-1,
34,
-41,
-21,
-11,
-38,
52,
-27,
-35,
-16,
98,
-64,
17,
-7,
29,
12,
38,
16,
5,
-1,
-51,
2,
25,
-58,
-7,
-19,
-55,
26,
40,
26,
8,
3,
-25,
-50,
-18,
5,
41,
-5,
7,
-6,
46,
17,
28,
-55,
34,
-5,
21,
-4,
-12,
-64,
-13,
-12,
17,
16,
8,
1,
-15,
-34,
-19,
6,
-28,
4,
16,
-34,
-22,
50,
-43,
-21,
-39,
-69,
15,
-14,
58,
18,
13,
-2,
10,
16,
0,
0,
13,
-51,
-21,
-2,
15,
-24,
53,
-27,
60,
-34,
-14,
-1,
8,
-15,
9,
60,
50,
-40,
39,
4,
-32,
11,
-10,
0,
-15,
16,
-16,
-6,
21,
18,
36,
-51,
13,
-18,
14,
-3,
-3,
-19,
-6,
-21,
-35,
19,
-8,
18,
-25,
15,
-34,
11,
25,
-12,
-36,
-36,
66,
13,
-9,
9
] |
Clark, J.
(dissenting). On plaintiff’s appeal from judgment notwithstanding the verdict, we notice chiefly one of the several defenses presented, namely, that the policy of fire insurance sued upon was made void by increase of hazard.
The building insured was a barn. The contract provided in part:
“This company will not insure against or be responsible for property destroyed by fire caused by the use of stoves or other fire apparatus in barns or any other outbuildings * * * nor for loss occasioned by permitting smoking or the use of open lights in or about barns or other places liable to take fire. * * *
“This entire policy shall be void if the hazard be increased by any means within the control or knowledge of‘the insured.”
Barn dances were held. Patrons smoked cigarettes in the barn. A wood burning stove was installed and used. An oil stove for cooking red hots was set up and operated. Gasoline lanterns were used. There were cracks in the barn floor and in the basement below the floor which was used as a barn were chaff and other accumulations common to barns. The fire started below the floor and during a dance.
The trial judge held increase of hazard under the policy and hence breach of the contract established as a matter of law.
The general provision last above quoted cannot be held as destroying’ the special provisions first above quoted. These special provisions deal with stoves or other fire apparatus, smoking, and the use of lights, and a breach of these conditions, or any of them, to be a defense, must be shown to have caused the fire, as provided by the contract. It was not shown what caused the fire. The remaining feature to come under the general provisions against increase of hazard is that dances were held in the barn. This alone, the said special matters being eliminated, is not sufficient to support the finding of increase of hazard as a matter of law.
The fact that plaintiff’s building was used by a tenant does not render the ownership of plaintiff other than unconditional as required by the policy. 26 C. J. p. 182. The building was a barn and was largely used as such despite the fact that barn dances were held in it occasionally,' and was within the risks defendant might insure under its charter.
Fraud in procuring the insurance is suggested, but this, if an issue, is one of fact and does not sustain judgment non obstante veredicto. No other question is presented by assignment of error.
Judgment should be reversed, with costs, and remanded for judgment on the verdict.
McDonald, C. J., and Potter, J., concurred with Clark, J.
North, J. Appellant’s first question submitted for review is as follows:
“Where public dances are held once a week in a farm barn at which cigarettes and cigars are sold and smoked on the premises, was it a question for the jury, whether or not the fire hazard was increased under the terms of a policy which provides that it shall be void if the hazard be increased by any means within the control or knowledge of the insured?”
Appellant asserts that a question of fact is presented. Appellant’s statement of facts contains the following:
“At the time of the fire there was a dance being held in the barn attended by a company of persons, some of whom were smoking. * * * Dances had been held in the barn other Saturday nights quite regularly. When cold weather set in a stove was installed. There was a hot dog stand with an oil stove and a cigar stand where cigars and cigarettes were sold. A false ceiling (of building paper) was put in the barn and it was lighted with gas lamps.”
In the face of these and other undisputed facts a finding by a jury that the fire hazard had not been increased would necessarily be set aside as contravening the testimony. The trial judge was right in holding as a matter of law that plaintiff’s tenant had increased the fire hazard. Plaintiff admits that he knew his tenant was conducting dances in the barn as early as August 1, 1930. Such dances held nearly every Saturday night were attended by a large number of people. They continued until the night of the fire December 8, 1930. Plaintiff’s lease to Bovier expressly provided that in no case were the premises “to be used for any business deemed extra hazardous on account of fire.” Clearly the extra hazardous condition brought about by plaintiff’s tenant was not only within plaintiff’s knowledge but it was a matter under his control if he saw fit to act. Under the record here presented plaintiff was responsible for and chargeable with knowledge of his tenant’s acts which increased the fire hazard.
The judgment is affirmed, with costs to appellee.
Sharpe, Fead, Wiest, and Butzel, JJ., concurred with North, J. | [
2,
-4,
-2,
5,
41,
21,
0,
22,
10,
36,
76,
37,
82,
-4,
0,
-34,
-33,
68,
-29,
36,
6,
-9,
-86,
-9,
-16,
6,
31,
-36,
-26,
69,
13,
-14,
-42,
-1,
-63,
8,
-27,
34,
-20,
-6,
8,
-25,
59,
-71,
24,
-6,
18,
-13,
69,
32,
23,
3,
30,
-25,
22,
8,
-2,
59,
-30,
-27,
-1,
-13,
-39,
23,
20,
5,
11,
-1,
-19,
14,
36,
12,
-53,
-33,
-12,
-6,
-2,
13,
-39,
-5,
-15,
-45,
29,
-4,
-50,
31,
34,
-2,
-69,
3,
-37,
2,
-14,
-29,
-23,
7,
-28,
19,
-12,
22,
30,
-11,
-31,
23,
-30,
21,
-1,
-17,
-18,
-33,
-7,
0,
-21,
-5,
57,
-22,
1,
30,
-35,
-21,
31,
15,
3,
-41,
-2,
27,
20,
4,
-62,
0,
-19,
-2,
-31,
36,
-24,
-34,
-26,
35,
-14,
-31,
22,
7,
6,
14,
-12,
6,
-5,
-70,
-50,
-32,
30,
8,
0,
-3,
-17,
-15,
-36,
-24,
32,
-52,
12,
-16,
-56,
39,
-13,
0,
17,
17,
12,
-9,
7,
-20,
-33,
0,
73,
25,
32,
-76,
-35,
-2,
-12,
19,
-3,
8,
65,
-21,
-51,
-2,
11,
-1,
21,
-30,
-40,
3,
20,
24,
2,
60,
0,
-49,
-13,
5,
-14,
-9,
54,
24,
-45,
3,
15,
16,
-43,
31,
-38,
-61,
-11,
16,
-29,
-36,
-29,
-31,
-38,
9,
-26,
-18,
-45,
-67,
-34,
-3,
26,
-22,
-72,
-18,
22,
27,
-32,
-31,
36,
-20,
25,
24,
20,
59,
-29,
26,
6,
-25,
-21,
53,
32,
11,
-13,
-18,
42,
37,
16,
-4,
-10,
2,
-44,
-12,
2,
36,
-44,
-2,
77,
9,
1,
-3,
-7,
57,
-32,
8,
13,
2,
-50,
-46,
-1,
35,
-17,
-1,
41,
29,
-24,
4,
-40,
39,
24,
16,
-44,
-64,
38,
-38,
6,
0,
47,
7,
31,
7,
1,
-12,
24,
-11,
2,
5,
-17,
-26,
-60,
-20,
-30,
-7,
-43,
-5,
-26,
21,
0,
-55,
-21,
18,
-27,
-48,
62,
8,
0,
5,
-40,
-64,
35,
-69,
15,
53,
-42,
8,
28,
49,
21,
6,
11,
-20,
-13,
26,
-12,
-6,
44,
-46,
-18,
59,
22,
-6,
7,
-48,
-18,
29,
12,
0,
-14,
-17,
64,
2,
-29,
15,
33,
4,
23,
49,
20,
4,
19,
-30,
-27,
2,
13,
-36,
-17,
-6,
-5,
25,
-15,
64,
-46,
42,
19,
-72,
2,
-23,
11,
14,
13,
-22,
-31,
17,
-42,
-40,
18,
15,
0,
14,
-26,
-4,
-19,
8,
25,
11,
-5,
-60,
-26,
10,
-16,
-74,
-15,
8,
-39,
47,
-26,
-44,
4,
41,
10,
-21,
24,
-2,
62,
-46,
34,
30,
27,
-55,
11,
9,
-41,
-4,
-56,
6,
-60,
-7,
-36,
-15,
-32,
-31,
-8,
19,
-12,
2,
-33,
25,
9,
10,
-13,
22,
17,
-11,
-1,
-5,
10,
39,
-7,
17,
20,
-27,
-7,
6,
23,
-8,
-22,
-28,
45,
-2,
-37,
-12,
62,
-23,
2,
-28,
11,
-25,
-4,
5,
-39,
10,
-42,
29,
6,
42,
28,
28,
-29,
-46,
7,
27,
20,
-2,
59,
42,
3,
-52,
-51,
8,
0,
-10,
-14,
-13,
-32,
-28,
-28,
-31,
64,
1,
8,
-28,
32,
29,
12,
-15,
73,
-11,
13,
2,
35,
-4,
12,
3,
7,
-45,
-15,
-11,
3,
5,
-37,
7,
16,
-29,
42,
-12,
49,
-24,
0,
21,
60,
-12,
2,
-37,
-29,
30,
-4,
27,
3,
8,
-7,
-15,
7,
27,
12,
-27,
11,
20,
-7,
41,
2,
7,
-17,
43,
-20,
-5,
27,
10,
25,
-19,
10,
9,
42,
-1,
-6,
-33,
13,
-25,
-17,
-25,
10,
-19,
-28,
7,
-38,
21,
9,
-14,
-18,
15,
-19,
21,
-14,
2,
10,
38,
18,
-18,
-33,
-12,
20,
-45,
0,
11,
-29,
3,
-49,
-36,
8,
19,
41,
-1,
27,
8,
17,
1,
-34,
-36,
30,
53,
9,
16,
31,
-2,
2,
-7,
-11,
-7,
-3,
7,
0,
40,
20,
30,
-43,
-20,
35,
-38,
33,
-15,
25,
30,
-82,
-19,
-14,
-32,
13,
22,
-5,
45,
-6,
33,
7,
-49,
1,
1,
5,
-26,
5,
-15,
-4,
13,
1,
-53,
-15,
-32,
35,
52,
-37,
0,
23,
0,
-70,
25,
13,
-5,
46,
83,
39,
22,
-12,
-5,
9,
37,
12,
-40,
3,
-27,
59,
-24,
-21,
-26,
22,
-2,
0,
-4,
1,
-12,
33,
13,
15,
2,
32,
-25,
15,
-43,
52,
1,
-27,
18,
32,
-65,
15,
27,
18,
44,
58,
-20,
-18,
-37,
-11,
3,
-46,
0,
15,
-74,
60,
1,
-20,
-30,
55,
17,
14,
-52,
-16,
-53,
-30,
-10,
4,
27,
31,
-19,
32,
-15,
8,
36,
43,
29,
-52,
9,
26,
-17,
54,
0,
5,
-8,
-8,
-22,
-5,
26,
-20,
0,
-17,
-39,
67,
-17,
-3,
-2,
18,
-16,
8,
-13,
17,
-88,
32,
49,
3,
-26,
19,
41,
21,
-67,
2,
8,
46,
-35,
24,
-5,
-61,
-26,
14,
-21,
-14,
13,
6,
64,
20,
-20,
-47,
-7,
-14,
-12,
3,
-19,
1,
26,
29,
21,
7,
6,
-26,
-4,
42,
-47,
24,
-38,
37,
-5,
-29,
9,
-50,
7,
-16,
27,
17,
82,
-6,
0,
40,
-21,
-2,
-65,
4,
-23,
13,
-39,
-12,
29,
30,
-7,
-19,
16,
-22,
-12,
13,
13,
20,
113,
9,
-39,
-27,
-21,
-13,
18,
-24,
-6,
32,
12,
1,
-14,
-25,
-15,
40,
20,
-38,
8,
19,
17,
31,
-17,
-24,
56,
-22,
2,
-36,
45,
9,
24,
-31,
20,
-29,
-32,
24,
-7,
17,
0,
-28,
33,
-1,
-5,
-36,
-24,
-6,
65,
78,
8,
3,
66,
-6,
0,
-18,
-3,
30,
-53,
-37,
-42,
-19,
19,
6,
28,
19,
-37,
-3,
-7,
-6,
12,
9,
-35,
18,
70,
-11,
-30,
-40,
17,
-8,
-11,
29,
-32,
-12,
34,
-15,
-5,
-2,
37,
-15,
14,
-11,
81,
-8,
-40,
-6,
-12,
2,
-14,
-2,
-21,
62,
37,
-18,
-4,
0,
-25,
-21,
16,
-18,
63,
-6,
33,
-24,
0,
-49,
-1,
-30,
-14,
-68,
48,
-27,
-22,
6,
-29,
22,
28,
-79,
-25,
22,
-39,
49,
-1,
-38,
-5,
14,
-8,
-42,
-36,
-3,
-28,
12,
-13,
-18,
7,
-16,
-5,
18,
-33,
-22,
5,
25,
16,
-42,
-38,
-11,
-1,
6,
-8,
19,
25,
25,
17,
71,
-1,
11,
19,
0,
-30,
-23,
19,
40,
22,
-46,
-13,
-29,
26,
4,
-24,
80,
62,
23,
0
] |
McDonald, C. J.
James E. Meredith and the Union Trust Company of Maryland were trustees in a trust mortgage given by the defendants to secure the payment of two notes totaling $69,000. There was default, and James E. Meredith, without the consent and co-operation of the other trustee, foreclosed by advertisement. : During publication, James E. Meredith resigned his trust, and the plaintiff, D. Neil Reid, was appointed successor trustee. Publication of the notice continued in Meredith’s name. The plaintiff purchased the property at the sale for $78,387.86, and received the sheriff’s deed. About 10 months thereafter the defendants began a suit in assumpsit against D. Neil Reid to recover the difference between the $78,387.86 and the actual amount owing on the mortgage, which they claimed was about $40,000 at the time' of the sale. After the period for redemption had expired, the defendants refused to surrender possession, and the present suit, which is an action in summary proceeding for restitution, was commenced. The defendants appeared and defended on various grounds affecting the validity of the mortgage foreclosure. The issue was tried by the court and jury. Both parties moved for a directed verdict. The plaintiff’s motion was based on the contention that, by their suit in assumpsit to recover .the surplus in the hands of the mortgagee, the defendants elected their remedy; that they confirmed the sale and could not thereafter question its validity. The trial court did not agree with this contention, but held the sale invalid as a matter of law, and directed a verdict against the plaintiff. From the judgment entered the plaintiff, has appealed.
"We think there was merit in the contention as to election of remedies, and that the court should have directed a verdict in favor of the plaintiff. It is well settled that
“A man may not take contradictory positions, and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again.” Thompson v. Howard, 31 Mich. 309.
See, also, Thomas v. Watt, 104 Mich. 201; H. G. Vogel Co. v. Original Cabinet Corp., 252 Mich. 129; 20 C. J. p. 20.
“The rule that a party will not be allowed to maintain inconsistent positions in judicial proceedings is not strictly one of estoppel, partaking rather of positive rules of procedure based on manifest justice, and, to a greater or less degree, on considerations of orderliness, regularity, and expedition of litigation.” 10 R. C. L. p. 698.
The parties do not disagree as to the rule applicable to the election of remedies, but defendants claim it is not applicable in this case because, at the time they began their assumpsit action, they had no knowledge of the facts essential to a determination of their rights and the proper procedure to be adopted in obtaining them; that they had no knowledge of the facts which they now claim render the mortgage sale invalid. The record negatives this contention. One of these facts most strongly relied on is that the mortgage was foreclosed by advertisement. It is their claim that a trust mortgage cannot be foreclosed by advertisement, and, therefore, the sale was invalid. They knew how it had been foreclosed when they began their assumpsit action. Another fact alleged against the validity of the sale is that the power of sale in the trust mortgage required the joint action of the two trustees, the Union Trust Company of Maryland and James E. Meredith, and that the foreclosure was carried on by Meredith alone. They knew of this fact from the terms of the trust mortgage and from the notice of publication. They say they did not know that the other trustee had refused to join in the foreclosure, but that does not matter. It was sufficient to know that Meredith was acting alone. These and other material facts were matters of record. It is idle to assert that defendants had no knowledge of them 10 months after the foreclosure, when they began their assumpsit suit.
There were three methods of procedure available to defendants after foreclosure. They could waive irregularities and invalidity of the sale and sue in assumpsit for the $40,000 surplus which they claimed was in the hands of the trustee. They could file a bill and have the sale set aside, or, which was equivalent thereto, hold over after redemption had expired and test the validity of the sale in the summary proceedings. They chose to sue in assumpsit; such action necessarily implied a valid sale and is inconsistent with their subsequent action in attempting to have the sale declared invalid. After suing to recover a money judgment on the theory that there was a valid sale, the defendants cannot change their position in a subsequent action and ask for other relief on the theory that there was no valid sale. There was an election of both rights and remedies.
The judgment is reversed, and the cause remanded for the entry of a judgment in favor of the plaintiff.
Clark, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-35,
-21,
14,
30,
-31,
23,
33,
19,
10,
23,
-21,
-29,
4,
73,
-25,
-26,
4,
-33,
-25,
-23,
6,
-50,
-58,
-17,
21,
-48,
23,
-79,
22,
-39,
0,
15,
-49,
27,
-36,
-28,
-35,
-16,
3,
-24,
-17,
20,
-18,
29,
-38,
-4,
-71,
-55,
-8,
16,
41,
-17,
18,
6,
3,
4,
-23,
60,
13,
-42,
0,
-32,
3,
8,
-48,
-35,
-9,
-30,
5,
25,
7,
-42,
29,
12,
-4,
-6,
8,
-25,
-47,
-24,
-47,
-83,
81,
-44,
31,
-39,
6,
-9,
-14,
48,
9,
34,
-25,
3,
-11,
40,
41,
43,
23,
46,
-17,
-4,
15,
59,
2,
15,
-28,
-78,
-8,
23,
-3,
20,
41,
-17,
-56,
-14,
-40,
-17,
-7,
-6,
-29,
-25,
-15,
-69,
19,
29,
28,
-34,
-68,
-6,
-3,
19,
-48,
7,
-4,
-12,
-4,
-29,
12,
14,
35,
7,
1,
-60,
-32,
-4,
29,
-56,
6,
17,
-34,
69,
-9,
36,
23,
-48,
37,
-10,
-12,
-19,
13,
14,
-17,
-33,
-25,
-24,
21,
19,
4,
46,
13,
16,
-53,
-36,
-23,
20,
30,
-35,
15,
-50,
-29,
-22,
26,
16,
-6,
-42,
-31,
-19,
6,
34,
56,
-23,
1,
42,
18,
9,
-14,
-5,
11,
26,
-40,
-27,
10,
6,
11,
0,
63,
-56,
-29,
23,
-28,
32,
-8,
-22,
-8,
24,
9,
-9,
32,
-50,
18,
-2,
-47,
13,
-43,
-27,
31,
-19,
6,
57,
-26,
-13,
-1,
-25,
7,
2,
9,
28,
-10,
6,
-11,
-6,
-27,
-8,
-17,
-13,
-15,
8,
2,
33,
-102,
-28,
5,
54,
50,
8,
-23,
-5,
-27,
5,
44,
9,
-76,
3,
-22,
-20,
-9,
-29,
9,
-2,
6,
26,
12,
29,
38,
-14,
-83,
43,
-46,
-17,
46,
-8,
-20,
-20,
-44,
21,
-18,
30,
-17,
25,
37,
-8,
8,
-24,
38,
-22,
-30,
-28,
37,
-4,
5,
4,
-8,
13,
-11,
22,
-26,
-2,
-18,
-40,
27,
-25,
-6,
14,
66,
12,
20,
-7,
-2,
-33,
16,
-1,
5,
-21,
-2,
-6,
56,
-7,
-11,
26,
-3,
-31,
0,
7,
30,
-6,
37,
-49,
-2,
-10,
30,
-5,
-8,
-26,
9,
-42,
4,
0,
-43,
94,
-1,
43,
-4,
23,
-2,
11,
9,
27,
0,
24,
60,
12,
-69,
-20,
25,
-15,
-29,
1,
-8,
41,
55,
28,
-11,
-21,
-39,
1,
-61,
43,
-34,
48,
-28,
4,
53,
4,
-21,
29,
-65,
-1,
-33,
-10,
-51,
4,
-6,
9,
52,
-38,
15,
-19,
-28,
-7,
26,
22,
-21,
-68,
-56,
18,
36,
-77,
10,
4,
-5,
36,
10,
2,
-46,
6,
38,
29,
-9,
17,
-1,
-11,
-1,
2,
21,
-28,
-4,
46,
-24,
-27,
-15,
50,
1,
3,
12,
42,
-13,
-11,
-24,
56,
18,
-35,
-26,
30,
18,
-25,
17,
7,
57,
23,
-7,
34,
0,
-23,
-18,
15,
35,
-40,
48,
-20,
64,
-23,
9,
29,
26,
-35,
7,
-10,
-8,
-27,
45,
13,
-3,
8,
-36,
41,
20,
-10,
-26,
-1,
-19,
0,
-1,
5,
-20,
-36,
-72,
-33,
-14,
-23,
35,
54,
3,
13,
-58,
11,
11,
-65,
-16,
13,
-10,
-3,
-13,
23,
56,
-12,
-4,
-41,
-12,
12,
-37,
-1,
32,
55,
-7,
-17,
2,
13,
8,
26,
55,
-27,
-63,
3,
-17,
5,
2,
57,
-1,
13,
14,
-13,
7,
34,
-20,
45,
43,
3,
25,
-2,
-19,
70,
-9,
73,
6,
24,
6,
-17,
-15,
14,
-5,
-46,
28,
43,
-10,
19,
-6,
-66,
27,
-33,
3,
-3,
16,
-21,
3,
-34,
25,
14,
-22,
26,
-14,
-46,
-12,
12,
55,
5,
-56,
-17,
-17,
4,
42,
-36,
50,
-55,
20,
10,
18,
9,
-15,
19,
-6,
10,
-42,
-32,
8,
-3,
-9,
13,
-12,
31,
-57,
0,
-37,
16,
45,
-61,
-3,
44,
-14,
-15,
0,
-9,
38,
32,
-56,
-34,
-8,
8,
-41,
22,
28,
48,
17,
-23,
-10,
29,
-8,
16,
-1,
3,
69,
-27,
10,
15,
-24,
32,
-80,
-12,
-7,
5,
-25,
29,
-17,
-17,
-41,
-31,
-13,
-27,
66,
-23,
-15,
23,
35,
44,
25,
-51,
24,
-13,
-16,
-44,
45,
-20,
-20,
63,
-2,
-2,
6,
39,
23,
21,
9,
-14,
48,
1,
18,
21,
1,
16,
-9,
30,
-18,
-8,
69,
-13,
5,
-19,
25,
-17,
-1,
2,
0,
-17,
-25,
-27,
-12,
-18,
33,
104,
-14,
11,
31,
4,
27,
1,
17,
-18,
-3,
27,
7,
-21,
59,
12,
21,
-11,
9,
45,
10,
53,
-16,
-17,
4,
-11,
34,
-49,
-4,
-16,
13,
-39,
-15,
-36,
-29,
-7,
1,
49,
-39,
42,
23,
-13,
-26,
-18,
-20,
-9,
43,
14,
-4,
21,
-19,
40,
15,
-2,
45,
-29,
-10,
5,
0,
-5,
-15,
-3,
2,
-16,
-22,
68,
-11,
9,
27,
24,
29,
-32,
-32,
1,
-26,
-20,
-21,
-30,
-38,
-17,
3,
-18,
26,
-5,
23,
9,
26,
-28,
-7,
-39,
28,
1,
-3,
47,
9,
-41,
-67,
22,
-9,
21,
77,
-53,
-48,
-37,
11,
27,
2,
48,
-49,
17,
-31,
-13,
-8,
-6,
-26,
1,
16,
-37,
31,
-25,
-16,
50,
-27,
0,
-14,
30,
-38,
-36,
4,
36,
10,
13,
-54,
47,
-3,
-56,
-41,
11,
30,
-41,
-24,
-17,
45,
-33,
-42,
-77,
-70,
-15,
27,
0,
0,
-11,
0,
-64,
-10,
24,
-4,
-24,
-9,
-13,
-14,
3,
-11,
-32,
61,
45,
-13,
-7,
-28,
1,
27,
57,
-30,
45,
0,
19,
-7,
16,
-35,
49,
38,
-56,
12,
18,
-11,
-9,
-25,
50,
-17,
-15,
33,
7,
-47,
22,
-20,
24,
-47,
-4,
9,
17,
61,
-24,
27,
3,
3,
13,
-1,
18,
47,
-28,
-8,
43,
13,
-9,
22,
-27,
-21,
-18,
-18,
55,
56,
31,
33,
48,
15,
5,
-36,
-10,
15,
-35,
6,
17,
0,
25,
7,
41,
-12,
35,
-17,
-16,
-21,
-51,
-14,
15,
12,
-35,
-9,
0,
-25,
19,
21,
11,
-12,
-12,
-47,
-5,
32,
6,
14,
16,
-30,
-22,
-38,
-39,
-10,
-61,
-8,
-76,
65,
-28,
24,
-13,
-19,
-15,
7,
-3,
-5,
-68,
-47,
12,
16,
-14,
-1,
-18,
20,
12,
26,
0,
30,
52,
36,
23,
-44,
-19,
38,
27,
32,
44,
-16,
18,
28,
21,
42,
15,
12,
12,
60,
-36,
-25,
5,
47,
27,
9,
-34,
-51,
-57,
32,
17,
23,
59,
1,
21,
34,
-17,
-10,
19,
-21,
91
] |
North, J.
Plaintiffs are respectively mother and brother of Huston Johnson, whose death resulted from an injury received at the time he was in the employ of the Novo Engine Company. As alleged dependents plaintiffs made claim for compensation. Upon review before the department of labor and industry, plaintiffs’ claim was disallowed, on the ground that the accident resulting in the death of the employee did not arise out of and in the course of his employment.
We quote the following from the opinion, of the department:
‘ ‘ There were two overhead cranes in the plant in which the decedent was working, known as the east and west cranes. He was engaged to operate the east crane, and one Tony was employed to operate the west crane. The west crane was out of repair and defendant’s foreman had directed that it be placed in what is known as a neutral zone between upright posts. The operator of the crane went to the cab from which the crane was operated by ascending ladders attached to the posts at the side of the bay over which the crane operated. The decedent was not employed to operate the west crane and at this time the crane was out of repair. The electricians were on the crane repairing it. The decedent, without any authority and contrary to instructions given to him by his foreman, attempted to go to the cab of the west crane. He evidently ascended the ladders on one of the posts and shinned along the rail to where the crane was standing. His foot accidentally came in contact with a live wire and he was injured. He fell to the floor below, a distance of about 25 feet, resulting in injuries causing his death on the day of his accident.”
After noting that both parties were subject to the compensation law, and that since deceased was killed while working at defendant’s plant the burden was upon defendant to show that the accidental injury resulting in his death did not arise out of and in the course of his employment (Papinaw v. Railway Co., 189 Mich. 441 [12 N. C. C. A. 243]; Wishcaless v. Hammond, Standish & Co., 201 Mich. 192), the opinion of the department continues:
“But if the decedent violated the instructions of his foreman in going on this crane, he having no duty there to perform, and being in a place where his duties did not call him to be, his dependents cannot recover compensation. There is no proof upon the part of the plaintiff justifying the decedent’s being on this particular crane. There is no evidence on the part of the plaintiff which would justify a finding of fact that he was on the west crane in pursuance of any duty he had to perform for his employer. On the other hand, there is evidence on the part of the employer that he was there in violation of instructions from his foreman. * * *
“It is clearly established that the decedent was at a place where his duties did not call him to be, and in violation of his employer’s instructions. His dependents cannot recover compensation on account of his death. This case is controlled by the cases of Spooner v. Detroit Saturday Night Co., 187 Mich. 125 (L. R. A. 1916A, 17, 9 N. C. C. A. 647); Buvia v. Oscar Daniels Co., 203 Mich. 73 (7 A. L. R. 1301) ; and Gacesa v. Consumers Power Co., 220 Mich. 338 (24 A. L. R. 675).”
We quote from the testimony bearing upon the question of whether the employee was acting in violation of his employer’s instructions at the time of the accident:
“ (Herman Bapelje) Q. Were you employed by tbe Novo on tbe day Huston Johnson met his death?
“A. Yes, sir.
“Q. What is your capacity?
“A. Foreman, foundry department. * * *
“Q. How long before the accident were you at the scene? * * *
“A. I was there not exceeding five minutes.
‘ ‘ Q. Did you see Huston Johnson at that time?
“A. He was standing down at the south of the crane.
“Q. Did he say anything to you ?
“A. He did.
‘‘Q. What did he say to you?
“A. He said, ‘How am I going to-get that dinner pail?’
“Q. What did you say to him?
“Mr. Wilson. I object to that as being incompetent, what was said between these parties five minutes before.
“Commissioner: He may answer. .
“Q. What did you say to him?
“A. ‘ Stay to hell away from that crane. ’
“Q. Did Huston Johnson have any duty that called him to get upon that west crane?
“A. No, sir.
‘ ‘ Q. And you told him five minutes before that to stay to hell off that crane, is that correct?
“A. Yes.”
While the testimony is not very definite, it appears that the dinner pail referred to probably belonged to another employee who operated the west crane. The question of admissibility of the testimony offered to show that decedent at the time of his injury was acting in violation of his employer’s orders is of prime importance. Bapelje was the only witness who testified on this phase of the case. Appellants urge in their brief that his testimony above quoted was incompetent, as being equally within the knowledge of the deceased. 3 Comp. Laws 1929, § 14219. This question was not passed upon in the opinion rendered by the department. • We think the record justifies the conclusion that it was not properly presented by the record or relied upon. The only objection made to this testimony was: “I object to-that as being incompetent, what was said between these parties five minutes before.” There was no intimation whatever that the objection was based upon the statute; but instead, the fair inference is that counsel contended the testimony was inadmissible because in point of time it did not coincide more closely with the accident. Obviously, objection on such ground is untenable. t
“It is the duty of a party objecting to the admission of evidence, to state the ground of his objection with perspicuity, that the court and the opposing party may not be misled by it. ’ ’ Hoard v. Little, 7 Mich. 468.
See, also, Stevens v. Hope, 52 Mich. 65; Merlde v. Township of Beannington, 68 Mich. 133.
“Where the objection to the introduction of a lease in evidence is that the party offering it has not called either of the subscribing witnesses to prove its execution, the specific objection should be pointed oiit' so that the court can remove it by calling the witnesses ; it is not enough to object to it as incompetent and immaterial.” Jochen v. Tibbells (syllabus), 50 Mich. 33.
“A contention that the contents of a lost execution were not sufficiently proved will not be sustained, on appeal, where there was proof of a valid judgment, and the issue and levy of an execution thereunder, and the only objection to the testimony was that it was ‘incompetent and immaterial.’ ” Crane v. Waldron (syllabus), 135 Mich. 73.
Regardless of the merits of the objection now asserted in appellants’ brief, it was not fairly presented at the hearing, and cannot be sustained in this court. To hold otherwise would afford the means of tricking a party litigant into relying upon the record made at the hearing, where it might have been amplified, and on appeal being confronted for. the first time with an objection which would defeat the accomplishment of justice.
With the quoted testimony in the record, the holding of the commission on the issue of fact, that at the time of his injury the employee was acting in violation of instructions, must be sustained. On review, the Supreme Court does not weigh the evidence, but confines its determination to ascertaining whether there is any competent evidence to support the finding of the commission. Beaty v. Foundation Co., 245 Mich. 256. The instant case is very similar to Bischoff v. American Car & Foundry Co., 190 Mich. 229. See, also, Spooner v. Detroit Saturday Night Co., 187 Mich. 125 (L. R. A. 1916A, 17, 9 N. C. C. A. 647).
The determination of the department is affirmed, with costs to appellees.
McDonald, C. J., and Clark, Potter, Sharpe, Pead, Wiest, and Butzel, JJ., concurred. | [
-15,
16,
-55,
-49,
14,
-1,
1,
5,
71,
1,
-40,
0,
54,
9,
-24,
-2,
-7,
2,
-36,
-17,
-1,
-7,
5,
-26,
-6,
-24,
3,
-28,
-22,
25,
-13,
-13,
-21,
-18,
4,
92,
21,
-14,
-16,
-11,
-20,
-24,
49,
-17,
47,
14,
27,
-9,
27,
-15,
0,
1,
27,
-21,
11,
11,
46,
16,
-3,
49,
15,
-33,
45,
-40,
23,
1,
-25,
32,
-18,
34,
-18,
76,
-5,
-25,
-6,
-32,
-31,
58,
-15,
-18,
16,
-4,
8,
-41,
-64,
76,
-29,
3,
-23,
6,
-24,
-15,
-25,
24,
-67,
48,
-36,
36,
-81,
-16,
-14,
29,
14,
-31,
-18,
-31,
8,
-8,
41,
10,
-7,
31,
7,
60,
3,
-34,
47,
-12,
-40,
40,
16,
8,
29,
-7,
0,
32,
0,
-2,
-2,
16,
14,
26,
-65,
9,
-32,
5,
4,
-26,
0,
2,
-13,
30,
-26,
-20,
-22,
26,
-14,
42,
-13,
-45,
-10,
35,
21,
-34,
-10,
-5,
-4,
-4,
38,
63,
23,
-15,
49,
13,
-17,
-53,
-10,
18,
11,
-38,
-6,
6,
-20,
-83,
43,
31,
9,
-31,
-48,
29,
-9,
-15,
18,
-13,
-31,
-74,
19,
0,
24,
31,
17,
-17,
-49,
8,
-45,
12,
20,
-11,
55,
35,
35,
3,
-12,
-45,
22,
34,
-11,
-14,
-7,
-21,
24,
45,
-21,
-46,
-61,
5,
-38,
-54,
-35,
-41,
8,
38,
-2,
-41,
-36,
-10,
-29,
-16,
31,
-32,
10,
-37,
42,
-9,
0,
-56,
33,
-18,
77,
-1,
42,
29,
-41,
-19,
0,
-78,
-5,
-31,
-22,
8,
22,
-13,
-11,
38,
-6,
-11,
-8,
12,
-23,
-47,
-12,
20,
-58,
45,
41,
-12,
-46,
34,
-63,
-27,
-1,
-21,
69,
-23,
-31,
-67,
46,
48,
53,
20,
-48,
44,
-7,
-37,
-61,
45,
-39,
-36,
-23,
19,
39,
-37,
27,
-50,
45,
6,
48,
1,
-71,
13,
-36,
3,
22,
-8,
46,
32,
-43,
-25,
4,
1,
-13,
7,
6,
-12,
21,
48,
-38,
11,
1,
12,
-24,
23,
-11,
-20,
-24,
-24,
-24,
17,
94,
-5,
-8,
37,
-30,
25,
-12,
-25,
15,
21,
-40,
-16,
8,
17,
29,
-26,
-28,
-16,
40,
-3,
32,
-16,
-9,
-22,
33,
-41,
18,
33,
34,
5,
-24,
102,
68,
-16,
-14,
5,
-36,
-28,
5,
-35,
-1,
19,
9,
-9,
-19,
-5,
-25,
1,
-45,
62,
-3,
57,
7,
-55,
15,
-42,
-65,
21,
-2,
17,
-31,
93,
-17,
-58,
25,
54,
27,
86,
-21,
49,
1,
-18,
-16,
14,
-32,
-23,
4,
44,
8,
-10,
9,
-15,
-21,
-38,
52,
-11,
-17,
2,
69,
-18,
-8,
13,
45,
-12,
14,
-17,
38,
-12,
-7,
6,
-9,
-49,
3,
-22,
56,
-18,
-38,
-27,
-30,
-9,
-33,
10,
-62,
-34,
16,
-12,
-2,
20,
-20,
-1,
11,
-6,
3,
44,
31,
69,
-21,
-23,
4,
-5,
40,
-10,
-60,
-9,
57,
26,
52,
-16,
19,
-7,
58,
-1,
-4,
-4,
-8,
28,
-1,
-50,
8,
12,
-3,
8,
-36,
35,
13,
-15,
-35,
-31,
30,
14,
47,
24,
1,
34,
6,
-54,
0,
19,
-16,
44,
-25,
-44,
-31,
-13,
12,
-1,
23,
-66,
-31,
-63,
-40,
-20,
-69,
1,
27,
3,
-58,
13,
-10,
37,
28,
-9,
27,
-11,
-62,
25,
-39,
-43,
-25,
0,
-6,
-50,
37,
-46,
36,
7,
15,
-31,
0,
14,
7,
-27,
-13,
34,
14,
15,
-23,
-27,
-12,
58,
12,
3,
33,
-19,
-4,
-10,
15,
-18,
57,
11,
4,
6,
12,
18,
-18,
31,
38,
-8,
7,
39,
87,
-32,
-42,
29,
17,
-8,
-20,
28,
8,
29,
-12,
19,
0,
6,
7,
27,
-42,
-27,
-23,
-12,
5,
-8,
-35,
32,
-17,
-16,
53,
-32,
9,
-17,
-20,
-28,
34,
-40,
-50,
7,
6,
29,
-47,
-5,
38,
-28,
-18,
14,
-33,
-22,
-12,
-1,
-4,
-26,
46,
0,
5,
21,
-16,
-4,
-52,
53,
24,
10,
-8,
0,
-11,
31,
-18,
-37,
-9,
-23,
56,
30,
11,
-14,
48,
11,
18,
2,
-88,
-82,
13,
-3,
-6,
21,
7,
-12,
8,
21,
-7,
3,
-6,
27,
-2,
-28,
-8,
-14,
12,
31,
-6,
37,
-8,
-4,
-21,
9,
62,
56,
-13,
24,
-13,
17,
-35,
26,
14,
5,
9,
-13,
-3,
-11,
52,
-20,
3,
-21,
10,
-21,
-72,
15,
19,
28,
12,
71,
-1,
-27,
14,
10,
-40,
-4,
47,
25,
6,
-4,
-2,
-37,
-11,
4,
-15,
-29,
21,
0,
29,
45,
0,
-66,
-11,
-51,
-13,
-16,
-5,
-2,
29,
52,
25,
11,
-51,
-20,
-9,
-57,
-4,
44,
-7,
-26,
0,
8,
-14,
23,
55,
-17,
9,
16,
-14,
-28,
18,
3,
40,
14,
-20,
24,
4,
-20,
-48,
-37,
28,
-8,
-34,
-28,
25,
-31,
84,
1,
-17,
6,
-46,
1,
38,
-31,
-8,
1,
30,
-53,
18,
45,
-42,
-46,
-12,
37,
-15,
-23,
72,
34,
-21,
-16,
-30,
-37,
7,
27,
-11,
13,
-2,
9,
26,
-42,
-31,
8,
3,
25,
-40,
-37,
-27,
27,
42,
-57,
30,
15,
-2,
-14,
36,
-33,
-30,
3,
-35,
35,
0,
-2,
27,
29,
11,
105,
-6,
-45,
24,
-31,
46,
-28,
42,
15,
24,
-37,
-63,
2,
39,
28,
-1,
18,
42,
-23,
30,
9,
-36,
58,
24,
5,
-23,
14,
-32,
10,
-40,
-60,
36,
38,
1,
-32,
3,
-25,
1,
8,
-10,
-44,
-16,
20,
-28,
19,
-65,
41,
-32,
19,
-2,
-4,
5,
-4,
-56,
-4,
-40,
26,
33,
-30,
21,
0,
23,
13,
12,
43,
-7,
-24,
6,
41,
35,
34,
-13,
-28,
-18,
-17,
6,
30,
4,
14,
-12,
30,
18,
34,
2,
-18,
-58,
-78,
-48,
-1,
-10,
10,
4,
-30,
-31,
43,
-19,
35,
-11,
21,
-58,
18,
-15,
-21,
-21,
23,
-1,
-6,
-14,
9,
-28,
-60,
41,
-14,
31,
-14,
7,
-39,
-57,
-26,
-2,
19,
-9,
-21,
-14,
-65,
-6,
-25,
-14,
23,
17,
-4,
-6,
-6,
30,
-68,
34,
12,
-1,
8,
1,
19,
28,
70,
41,
6,
59,
-9,
-18,
-75,
59,
-17,
-16,
-77,
39,
-54,
-2,
33,
-12,
-1,
30,
-30,
17,
34,
0,
-46,
7,
-62,
-11,
16,
8,
10,
11,
31,
3,
17,
-14,
0,
37,
5,
66,
-12,
14,
49,
35,
59,
22,
37,
28,
34,
-42,
62,
-62,
48,
29,
65,
-70,
-34,
-24,
-3,
49,
-6,
39,
-46
] |
Butzel, J.
County of Muskegon, plaintiff, brought suit against the Michigan Surety Company, defendant, upon a depository bond of $20,000. On October 22, 1930, the board of supervisors of the county designated the Peoples State Bank for Savings of Muskegon, Michigan, as depository for the funds of the county of Muskegon for the years 1931 ánd 1932, the bank agreeing to furnish a surety bond in the amount of $300,000 to secure deposits made by the county. The bank was unable to furnish such bonds, and, on January 20,1931, a redesignation was made, whereby the National Lumbermen’s Bank of Muskegon and the Peoples State Bank for Savings were both designated as county depositories, each to receive approximately 50 per cent, of the county funds and each to furnish a surety bond in the amount of $150,000.
The Peoples State Bank for Savings furnished bonds as follows: Michigan Surety Company for $20,000, dated December 30, 1930; Fidelity & Deposit Company of Maryland for $25,000, dated December 29,-1930; Century Indemnity Company for $10,000, dated January 17, 1931;. ¿Etna Casualty & Surety Company for $15,000, dated December 29, 1930; Hartford Accident & Indemnity Company for $55,000, dated December 29, 1930; and Metropolitan Casualty & Insurance Company of New York in the amount of $25,000, which, according to stipulation filed, was in full force and effect on October 2, 1931. The terms of this latter bond are not set forth in the record. All of the other bonds contained provisions similar to the following clauses in the Michigan Surety Company bond:
“4. The surety shall not be liable for a greater proportion of the amount on deposit at the time of default hereunder, after deducting therefrom the value of all collateral delivered by the principal to or for the use of the obligee to secure such deposit, than the amount of this bond bears to the aggregate amount of all bonds, indemnity and collateral (other than collateral delivered by the principal as aforesaid) held by the obligee at the time of such default and liable therefor.
“7. This bond shall be deemed cancelled at the close of business upon the effective date set forth in a written notice served by the surety upon the obligee or by the obligee upon the surety, or sent by registered mail. Such date shall, in case of cancellation by the surety, be not less than five days from such service, or, if sent by registered mail, not less than 10 days from the date borne by the sender’s registry receipt. In case of cancellation the unearned premium, if any, shall be returned upon demand. ’ ’
During the latter part of June, 1931, all of the surety companies, with the exception of the Michigan Surety Company and the Metropolitan Casualty & Insurance Company of New York, sent notices of cancellation, so that on July 1,1931, only two bonds, totaling $45,000, remained uncanceled. The Peoples State Bank for Savings furnished a certificate of deposit for $55,000, which the county accepted as a substitute for a canceled surety bond of like amount. The certificate of deposit was later surrendered, and $105,000 of government bonds accepted in substitution for the certificate of deposit of $55,000 and other canceled surety bonds aggregating $50,000. The Bankers Trust Company of Muskegon was appointed trustee to hold these government bonds, which equaled in amount and were accepted in lieu of all the bonds that had been canceled. It is claimed that the bonds were not properly canceled, but the exhibits filed show beyond any question that the cancellations became effective when the board of supervisors accepted them, marked “canceled” across the bonds, and demanded and received government bonds as security in their places.
On October 2, 1931, the Peoples State Bank for Savings failed to open for business. The records of the bank show that at the close of business on October 1,1931, it owed the county $211,708.63. According to the books of the county, its claim against the bank was only $156,603.78. This was due to the existence of a large number of outstanding checks which had not been presented for payment at the bank. Checks amounting to $1,099.48 had been issued within 48 hours prior to the closing of the bank, so that the total amount due, if the drawer’s liability should be denied on all unpresented checks issued more than 48 hours prior to the closing of the bank, would be $157,703.26. Of this amount, however, the sum of $46,659.72 consisted of game warden funds, sums received for inheritance, mortgage, State, and delinquent taxes, and escheats, redemption, poor, unidentified dead estate, and State highway district funds. It is claimed that this entire sum belonged to the State of Michigan and not to the county. It is further claimed that delinquent tax funds belonging to townships, public schools, cities, and villages, totaling $73,199.99, although deposited in the designated depository of the county as county funds, were in fact funds of the State or other governmental divisions and were not covered, therefore, by the terms of the bonds of the defendant surety, protecting “funds of Muskegon county, Michigan.” If, however, all of these funds were protected by the bond, the $105,000 of government bonds, plus the $20,000 bond of defendant surety and the $25,000 bond of the Metropolitan Casualty & Insurance Company are insufficient to pay the balance due, even after deducting the total cheeks outstanding over 48 hours prior to the time the bank closed. Suit was brought against the Michigan Surety Company on its $20,000 bond, and judgment rendered in favor of the county for the full amount of the bond and interest. Numerous questions are raised on appeal.
It is claimed that there was no competent testimony to show the amount due from the bank. The county treasurer testified as to the amount on deposit at the time the Peoples State Bank closed by reading from a bank statement he had received. Even assuming that such testimony were mere hearsay, there still remains the perfectly competent testimony of the deputy treasurer, based upon a checking of her records.
It is contended that defendant was discharged from liability on the bond because timely notice of default was not served upon defendant in accordance with the terms of the bond. The requirement of notice conflicted with the statutory mandate that the bond be conditioned for the safekeeping and repayment of moneys deposited. The bond was a public bond and the provisions as to notice were surplusage. See Township of Forest v. American Bonding Co., 187 Mich. 657. Although cancellation and pro rata provisions may be described as consistent with the statute in that they affect the penalty rather than the conditions of the bond, it is clear that a requirement of notice adds a condition precedent to liability. No showing was made of any injury resulting to defendant from lack of notice. Grinnell Realty Co. v. General Casualty & Surety Co., 253 Mich. 16.
Defendant further contends that, as surety on a county treasurer’s depository bond protecting “funds of Muskegon county,” it is not liable for any funds deposited in a county account which may belong to other political divisions of the government. While such funds collected by the county treasurer must eventually be turned over to other governmental agencies, nevertheless these moneys were originally payable to the county and became intermingled with the county’s own funds, the county assuming responsibility as custodian. They are protected by depository bonds until paid over to the proper governmental agencies. The bond was given in accordance with Act No. 99, Pub. Apts 1909 (1 Comp. Laws 1929, §§ 1193-1202), which authorizes the designation of depositories for all public moneys received by county treasurers, and requires surety bonds to be given by such depositories. The terms of the statute must be read into the bond. See Lawrence v. American Surety Co., 263 Mich. 586.
Defendant further claims that although the pro rata clause is a legal and proper provision, the cancellation clause must be read out of all of the bonds; that for this reason the canceled surety bonds, amounting to $105,000, are still in force; that under the pro rata clause, if the total amount of these bonds were added to the $105,000 of government bonds plus the two uncanceled bonds of $20,000 and $25,000, respectively, defendant’s pro rata share of the loss would be considerably less than the $20,000 face amount of its bond. There was a legal cancellation of the $105,000 of bonds. See Lawrence v. American Surety Co., supra. The pro rata clause, by its very terms, applied only to bonds held by the obligee at the time of the default. The only bonds and securities held by plaintiff at that time were the $105,000 of government bonds, the $20,000 bond of defendant, and the $25,000 bond of the Metropolitan Casualty & Insurance Company of New York, the aggregate of which is insufficient to pay plaintiff’s loss.
The judgment is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Wiest, JJ., concurred. | [
-10,
12,
27,
23,
-8,
26,
1,
-18,
18,
-44,
2,
-40,
32,
-11,
-27,
43,
23,
39,
12,
-3,
-12,
-32,
-37,
-16,
-54,
17,
14,
-16,
21,
-48,
-35,
-1,
-20,
34,
-18,
0,
3,
-5,
-35,
-20,
3,
-21,
52,
38,
-30,
-33,
24,
-20,
36,
-26,
4,
22,
14,
9,
-13,
4,
-1,
7,
-6,
12,
38,
-31,
46,
14,
-1,
-24,
-13,
38,
53,
-11,
39,
42,
-17,
-8,
-6,
-9,
-16,
9,
-61,
-50,
7,
-98,
36,
-4,
-38,
-29,
-58,
8,
-42,
7,
-24,
22,
-42,
-11,
25,
-2,
-30,
1,
1,
43,
-17,
-33,
10,
51,
31,
21,
7,
-49,
-42,
11,
-11,
-24,
-14,
-9,
32,
-6,
-21,
22,
44,
44,
31,
-10,
22,
-32,
12,
25,
1,
0,
10,
-41,
33,
42,
-13,
6,
-2,
21,
33,
-17,
1,
14,
-21,
-1,
-21,
-1,
-12,
-45,
54,
-67,
16,
4,
-44,
10,
35,
53,
-23,
9,
-22,
0,
11,
-43,
17,
-6,
14,
-36,
-63,
-27,
-17,
23,
-6,
5,
-19,
2,
28,
-11,
-15,
39,
8,
-14,
-3,
25,
3,
21,
30,
20,
22,
-48,
-28,
-24,
13,
21,
32,
19,
-48,
24,
-14,
60,
-12,
52,
-30,
0,
49,
-74,
27,
-42,
11,
-29,
35,
-69,
-11,
-22,
-19,
-32,
-2,
12,
-25,
36,
8,
-16,
12,
-39,
-7,
33,
-26,
26,
-3,
-24,
44,
-5,
-12,
-3,
0,
-80,
40,
23,
1,
82,
56,
15,
69,
12,
-24,
-38,
-45,
14,
-15,
-66,
-16,
-32,
-1,
4,
-15,
-22,
-43,
38,
-19,
13,
0,
-34,
-45,
0,
-22,
2,
-28,
29,
-2,
11,
-2,
28,
-37,
-32,
10,
-37,
67,
-29,
-18,
-39,
43,
-25,
-20,
3,
32,
-7,
-21,
22,
-1,
-2,
2,
-17,
-47,
-26,
-9,
28,
14,
-5,
41,
27,
-23,
-53,
33,
65,
-3,
48,
-4,
-36,
-18,
-9,
-37,
-12,
-37,
-2,
15,
-22,
-23,
-19,
48,
-9,
58,
42,
26,
5,
18,
64,
-13,
21,
10,
26,
17,
12,
-12,
-1,
-47,
-33,
2,
-17,
-42,
-39,
31,
-14,
53,
-29,
32,
20,
30,
45,
-18,
-23,
-16,
-14,
1,
-48,
18,
-10,
-39,
27,
-46,
52,
35,
44,
-4,
31,
29,
30,
2,
41,
15,
-47,
-50,
21,
19,
49,
70,
36,
-30,
0,
26,
-5,
-64,
6,
-45,
29,
12,
49,
9,
-3,
24,
-3,
32,
-13,
-54,
-3,
-63,
-11,
7,
48,
-4,
5,
-2,
-41,
-56,
-55,
3,
67,
-28,
-4,
15,
28,
38,
1,
51,
31,
-11,
-27,
25,
-13,
-7,
0,
19,
-6,
18,
-24,
14,
11,
-46,
-7,
33,
-45,
-12,
55,
-49,
-50,
0,
32,
-5,
41,
45,
-9,
-37,
15,
15,
-8,
25,
63,
37,
-31,
5,
18,
-2,
32,
36,
0,
-7,
29,
-38,
-38,
-19,
49,
52,
-34,
-10,
-34,
-8,
-38,
36,
-9,
18,
-22,
8,
-55,
47,
-18,
12,
21,
6,
-24,
-3,
-22,
52,
-35,
31,
12,
-11,
31,
-13,
-21,
-55,
-20,
-5,
-14,
-9,
18,
20,
-5,
-18,
44,
-13,
49,
-48,
-3,
24,
0,
-29,
-9,
-18,
19,
-19,
35,
-26,
-72,
-31,
19,
-27,
-28,
6,
48,
19,
41,
-15,
8,
-21,
11,
-26,
31,
-41,
-4,
34,
50,
-35,
5,
-5,
8,
-18,
-34,
8,
4,
-18,
25,
16,
38,
-26,
-30,
23,
-28,
34,
11,
24,
-29,
-58,
7,
-8,
-26,
-56,
-24,
18,
40,
4,
11,
-19,
-24,
-5,
-5,
-22,
7,
-26,
-13,
-41,
-9,
-49,
-41,
-29,
-77,
-14,
21,
12,
-6,
37,
14,
-15,
-58,
6,
-10,
44,
10,
7,
-39,
-24,
56,
12,
-5,
-37,
11,
34,
3,
-34,
-15,
31,
29,
15,
29,
-8,
11,
8,
7,
-4,
12,
6,
-55,
-9,
37,
5,
14,
-12,
-21,
13,
20,
-44,
-30,
-12,
-28,
17,
6,
34,
39,
70,
35,
20,
36,
22,
-12,
-46,
49,
-24,
-52,
-21,
-36,
-6,
-10,
-25,
49,
20,
-22,
-62,
-25,
10,
0,
-3,
-24,
-34,
13,
47,
-11,
-21,
-10,
49,
31,
0,
-32,
-19,
1,
38,
-31,
27,
-19,
-59,
29,
-34,
6,
33,
-5,
62,
0,
62,
-36,
-14,
-45,
-1,
-52,
-16,
41,
9,
0,
-3,
29,
-12,
15,
43,
-14,
-18,
35,
6,
-38,
1,
42,
-75,
-23,
-16,
-19,
-25,
46,
13,
-21,
29,
48,
3,
-21,
-69,
31,
-40,
-25,
-32,
48,
-10,
-8,
12,
33,
6,
20,
6,
-25,
-31,
-3,
-73,
-72,
-5,
-15,
11,
4,
0,
-52,
-75,
10,
-29,
-9,
3,
-20,
1,
7,
20,
40,
-12,
14,
36,
4,
17,
10,
-27,
52,
22,
33,
-14,
0,
-11,
25,
20,
33,
5,
-47,
-61,
50,
-23,
10,
-25,
13,
22,
0,
9,
6,
-9,
-7,
14,
-38,
19,
-15,
-8,
-5,
-13,
-14,
14,
-69,
12,
36,
28,
-4,
47,
-34,
16,
-35,
55,
8,
11,
-33,
0,
-11,
11,
10,
-33,
64,
51,
32,
-11,
-10,
-25,
77,
-43,
36,
0,
-5,
-35,
16,
8,
-5,
-13,
6,
55,
-7,
19,
57,
-57,
31,
-49,
-43,
-68,
35,
24,
-37,
-38,
-11,
-25,
9,
-3,
1,
7,
12,
-28,
-38,
49,
-18,
15,
3,
-26,
-29,
38,
-63,
-58,
29,
-28,
-10,
6,
-6,
-6,
11,
-20,
5,
22,
53,
31,
-5,
14,
12,
-18,
-41,
56,
21,
-59,
-58,
15,
-32,
-43,
-11,
-53,
11,
28,
15,
-27,
1,
0,
3,
-2,
-37,
-6,
-9,
-32,
31,
60,
-46,
-55,
0,
39,
18,
14,
39,
3,
38,
-42,
35,
11,
-3,
-25,
-27,
4,
-5,
39,
4,
-52,
0,
6,
27,
28,
21,
5,
29,
4,
-20,
0,
-31,
-40,
-25,
19,
-11,
-1,
-3,
-52,
-50,
-55,
-4,
-21,
36,
32,
91,
-8,
28,
-2,
16,
-8,
15,
5,
-5,
10,
-23,
25,
-36,
41,
-44,
1,
-11,
-6,
5,
29,
17,
-42,
42,
12,
8,
56,
47,
-45,
10,
-5,
-15,
15,
-3,
-60,
-9,
30,
-11,
68,
3,
42,
-51,
28,
-4,
18,
-7,
-2,
-38,
-38,
0,
13,
10,
28,
-41,
9,
2,
-9,
40,
-53,
4,
5,
-3,
-58,
10,
22,
26,
23,
-34,
17,
-31,
52,
5,
-28,
-56,
64,
8,
53,
16,
-34,
-16,
45,
29,
-15,
44,
-2,
1,
27,
-6,
45,
52,
-3,
14,
42,
8,
28,
14,
-47,
51
] |
Wiest, J.
Defendant, by writ, attached restaurant fixtures and furnishings of plaintiff company, its tenant, receipted to the sheriff, and converted the same to its own use. The attachment was dissolved, and plaintiff company brought this suit, now prosecuted by its receiver, to recover damages for malicious attachment and conversion, and had verdict. Previously the defendant had recovered a judgment for rent against plaintiff company, and in the suit at bar gave notice of set-off. After verdict, and before judgment, defendant moved the court to set off its judgment against the damages found in favor of plaintiff. The court granted the motion and so reduced the verdict and entered judgment. Plaintiff, by appeal, claims the court was in error in so doing, and also in refusing to permit recovery of the expense incurred by plaintiff company in procuring dissolution of the attachment. Defendant prosecutes a cross-appeal, alleging errors upon the trial.
The adjudications so brought to confrontation were between the same parties and in the same court, and the action taken rests upon the inherent power of the court and is not governed by statutory provisions relative to set-off and recoupment’ in pending actions. The power exercised is ancient and well established. Set-off of executions is provided for by statute,. 3 Comp. Laws 1929, § 14550 et seq.
The mutual claims of the parties having* been judicially determined, the court, under its general jurisdiction over suitors, had an undoubted right to set off one judgment against the other, and thereby limit process of enforcement to what was then due.
The rule is well stated in 34 C. J. p. 701, § 1084:
“The courts have power to order the set-off of mutual judgments. This power formerly belonged exclusively to courts of equity, and of course still continues in them; but it has long been recognized as one which may be exercised equally by courts of law, proceeding on equitable principles. Although in some States a set-off of judgments is authorized by statute, the power to order it does not fundamentally depend upon statutes, but is independent of them; it rests upon the general and inherent jurisdiction and control of courts over their judgments, process, and suitors. • The recognized remedy at law by motion is so convenient, speedy, and inexpensive, that the courts have shown no disposition to restrict unnecessarily the exercise of this power.”
And in 15 R. ,C. L. p. 820, § 288, it is stated:
“The power to set off one judgment against another between the same parties existed at common law, and was not derived from any statute, and has been exercised by the courts from time immemorial. Accordingly courts of common law today have equitable jurisdiction in cases of set-off independently of statute. The exercise of the power depends mainly on the general jurisdiction of the court over its suitors and process, and may be said to be part of the inherent powers of courts in the administration of justice.”
See, also, 2 Freeman on Judgments (5th Ed.), §§ 1142, 1143, where, under the latter section, it is stated:
“To he the subject of set-off a judgment must be one for money, which may be enforced by execution. If judgments are in part only for money they may be offset to that extent but no further. But it is no objection to set-off of judgments that the claims upon which they were based could not have been offset against each other. A judgment founded upon contract may be set off against a judgment for damages suffered from a tort, and vice versa. The fact that the claim upon which a judgment was obtained was an unliquidated one is no objection to offsetting such judgment against another one, since when reduced to judgment the claim becomes liquidated and merged. ’ ’
See, also, People, ex rel. Wells, v. St. Joseph Circuit Judge, 39 Mich. 21; Robinson v. Kunkleman, 117 Mich. 193; In re Farmers’ & Merchants’ Bank of Lawrence, 194 Mich. 200.
The court was not in error in setting off defendant’s judgment against plaintiff’s verdict.
In behalf of plaintiff, it is claimed that the expense of procuring a dissolution of the attachment amounted to $2,000, and, on the ground that the attachment was malicious, this expense should be assessed against defendant.
The jury, in answer to a special question, found that defendant submitted all the facts and circumstances surrounding its claim against the plaintiff, known to it or its officers or agents, to its attorneys prior to December 10,1930, at which time the attachment process was issued.
This special finding eliminated plaintiff’s charge that the attachment was maliciously sued out. This was equivalent to a finding that defendant had prob able cause for suing out the attachment. Such being the case, plaintiff may not recover the expenses incurred in procuring a dissolution of the attachment.
The receiver for plaintiff having been’ appointed after commencement of the suit at bar, there is no merit in the point that, to permit the setting off of one judgment against the other, leads to a preference over other creditors.
It was held in Re Farmers’ & Merchants’ Bank of Lawrence, supra, quoting syllabus:
“It is well settled in this State that a receiver succeeds only to the title and right to property which the person, firm, or corporation he represents had at the time of his appointment, subject to all existing liens and equities, including the equitable right of set-off. ’ ’
In Gray v. Lincoln Housing Trust, 229 Mich. 441, it was held, quoting syllabus:
“A receiver does not take title as a bona fide purchaser, but takes assets subject to equities existing between the parties, and therefore his title and right can be no greater than the one for whose assets he is receiver and in whose shoes he stands.”
When defendant, after verdict, moved the court to set off its judgment it necessarily elected to treat the verdict in favor of plaintiff as final, for such set-off is only in cases of final judgments. The set-off of defendant’s judgment against plaintiff’s verdict, and entry of judgment in accordance therewith, precluded defendant from prosecuting an appeal to effect, on errors challenging plaintiff’s verdict, and from seeking a new trial, in case of affirmance of the set-off.
Plaintiff’s appeal was from the set-off and denial of expenses, and, upon affirmance of the judgment in such respects, defendant’s cross-appeal must be, and is, dismissed.
The judgment is affirmed, with cost's to defendant.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, J., did not sit. | [
-109,
-17,
9,
11,
-38,
-15,
-3,
-47,
-8,
19,
-52,
10,
22,
23,
-15,
-4,
-11,
-10,
-30,
74,
11,
-28,
-9,
19,
36,
-38,
43,
-74,
40,
14,
3,
-65,
-45,
31,
-25,
-6,
9,
54,
-11,
-25,
15,
68,
40,
-7,
6,
41,
-15,
-58,
43,
-53,
16,
25,
-20,
-4,
-4,
-63,
-12,
-24,
-21,
84,
5,
-5,
-45,
-1,
4,
50,
21,
-30,
-24,
-8,
-20,
-6,
44,
13,
-39,
-60,
-52,
17,
26,
-38,
-2,
-33,
-28,
2,
-16,
18,
-3,
1,
-29,
-9,
-26,
56,
-59,
-35,
-52,
-8,
36,
10,
22,
1,
6,
26,
-40,
23,
-7,
35,
40,
-66,
4,
-13,
23,
6,
29,
-22,
-46,
-4,
-62,
-7,
57,
26,
22,
15,
23,
-10,
21,
-1,
-14,
-13,
-9,
4,
-38,
-8,
-11,
1,
-3,
21,
-32,
1,
-42,
-28,
25,
-45,
-26,
5,
-23,
31,
20,
32,
-27,
14,
9,
7,
44,
53,
8,
17,
6,
7,
-24,
-31,
80,
-2,
-24,
-44,
13,
-37,
-40,
22,
12,
44,
2,
15,
-6,
18,
-41,
-1,
-31,
-47,
-65,
-40,
-62,
54,
43,
34,
34,
-54,
9,
7,
20,
31,
2,
4,
-30,
32,
38,
2,
11,
22,
52,
33,
-15,
-9,
-11,
-34,
-23,
12,
63,
1,
12,
-7,
-67,
32,
-45,
-13,
-26,
-23,
-2,
-49,
-8,
15,
8,
37,
37,
32,
-20,
-44,
-35,
33,
89,
42,
-15,
26,
-11,
16,
24,
-19,
-7,
-1,
6,
-26,
8,
82,
0,
-38,
-35,
-24,
18,
-3,
-25,
-23,
0,
-19,
17,
43,
5,
-2,
-69,
22,
-16,
1,
1,
35,
-18,
-13,
-14,
30,
2,
-8,
-16,
-34,
-35,
-6,
57,
7,
-12,
-21,
-19,
-23,
1,
11,
22,
10,
28,
16,
-57,
25,
41,
7,
-6,
29,
-30,
-19,
33,
1,
23,
57,
-9,
-8,
13,
-30,
-53,
-47,
36,
80,
-14,
-5,
-33,
37,
14,
-33,
-52,
-48,
9,
2,
72,
-8,
-43,
3,
-15,
-58,
12,
20,
-9,
-44,
-8,
-56,
-4,
16,
-36,
1,
8,
5,
28,
-29,
6,
-37,
12,
56,
-4,
9,
42,
-43,
-13,
-48,
3,
-5,
44,
11,
-13,
-20,
-28,
-19,
-19,
27,
22,
-26,
11,
-25,
-16,
-13,
32,
-63,
-47,
-25,
35,
30,
27,
21,
-20,
30,
-49,
53,
-43,
-45,
14,
-7,
-67,
-19,
-51,
36,
2,
-65,
47,
3,
14,
-16,
-50,
29,
-14,
22,
-2,
15,
-4,
21,
-6,
27,
-67,
19,
-45,
-14,
42,
6,
12,
-4,
-83,
8,
17,
6,
-7,
53,
11,
-24,
38,
-22,
-9,
40,
10,
53,
30,
-33,
45,
-3,
6,
-48,
15,
11,
8,
-42,
-42,
-19,
-16,
21,
-3,
22,
-5,
29,
-24,
-8,
-7,
51,
-70,
-59,
-32,
-2,
1,
-10,
-25,
-64,
16,
76,
15,
-12,
53,
-2,
7,
24,
26,
-44,
21,
10,
53,
-48,
-28,
2,
51,
-29,
1,
-12,
-31,
-16,
16,
-20,
-12,
37,
-30,
-3,
12,
75,
14,
-19,
58,
15,
-2,
-15,
16,
35,
-25,
42,
12,
6,
16,
8,
38,
-27,
-36,
-21,
-51,
29,
-77,
30,
-20,
-50,
-27,
-3,
28,
6,
-34,
-62,
15,
11,
-13,
14,
67,
55,
-28,
2,
15,
33,
13,
15,
17,
-38,
-12,
-3,
-115,
-42,
-32,
47,
-24,
-77,
-2,
17,
25,
-16,
3,
3,
-7,
-72,
27,
-7,
-14,
22,
45,
74,
15,
35,
14,
-65,
41,
16,
-9,
-3,
29,
5,
-6,
-13,
-2,
-24,
33,
-31,
9,
10,
-20,
12,
10,
-14,
-1,
-43,
5,
66,
1,
26,
-22,
8,
-10,
-23,
-25,
-17,
-7,
-17,
3,
19,
4,
-3,
33,
-49,
-13,
-1,
37,
-13,
12,
21,
-52,
-62,
39,
-11,
30,
4,
39,
9,
-54,
18,
-33,
-10,
-1,
-30,
50,
34,
41,
15,
38,
5,
-45,
-5,
-4,
15,
35,
-25,
-6,
67,
45,
-18,
-32,
50,
42,
6,
14,
-19,
-20,
-20,
8,
24,
-36,
3,
2,
40,
10,
15,
9,
-5,
-52,
26,
23,
-51,
-36,
22,
-50,
9,
42,
33,
0,
52,
22,
-20,
26,
13,
-18,
-11,
12,
-16,
-25,
-25,
9,
-19,
14,
18,
-35,
9,
8,
-16,
30,
33,
67,
25,
-13,
2,
-2,
-39,
-32,
34,
-4,
10,
-30,
50,
-14,
-11,
10,
16,
53,
25,
-40,
-35,
-21,
-6,
21,
26,
-34,
-10,
-19,
-41,
-34,
-19,
50,
41,
-18,
-13,
-52,
-3,
-10,
6,
-30,
-57,
0,
14,
30,
22,
33,
-4,
-21,
32,
3,
-28,
56,
-60,
48,
37,
-19,
26,
8,
-43,
23,
-48,
11,
47,
-15,
-10,
-34,
39,
-36,
-16,
54,
-16,
-16,
1,
-53,
-16,
-46,
28,
8,
19,
66,
26,
32,
-42,
-64,
-8,
15,
-1,
-4,
-20,
24,
6,
-38,
38,
11,
5,
1,
-26,
42,
-35,
-33,
-14,
3,
-36,
0,
34,
17,
-17,
-34,
0,
-2,
5,
-13,
63,
8,
10,
-4,
-46,
-22,
21,
-17,
-28,
-2,
3,
-34,
-10,
-5,
-3,
-59,
-31,
-10,
33,
-13,
-2,
-3,
38,
23,
36,
-11,
-46,
4,
5,
0,
-16,
30,
-29,
-40,
0,
-15,
17,
-11,
71,
-11,
-14,
37,
-58,
36,
-12,
-81,
66,
-4,
-36,
-55,
21,
75,
0,
12,
11,
24,
-29,
-32,
-1,
-1,
-23,
9,
-36,
34,
5,
-31,
39,
29,
3,
12,
43,
-17,
-2,
-16,
-50,
-28,
-9,
-59,
-3,
-24,
-18,
-35,
-8,
-55,
40,
1,
19,
0,
11,
-11,
11,
-47,
21,
13,
2,
-41,
10,
-9,
37,
-30,
25,
-30,
11,
33,
2,
-24,
62,
11,
-19,
-7,
38,
19,
5,
-20,
-19,
-15,
-3,
-14,
29,
-8,
44,
28,
-27,
-22,
63,
-16,
-2,
-5,
6,
54,
-1,
59,
59,
-9,
-19,
17,
-10,
13,
22,
-22,
-32,
-21,
4,
37,
-16,
42,
45,
-29,
-27,
54,
14,
-52,
-35,
-18,
-11,
4,
-9,
-13,
4,
-15,
5,
-22,
7,
-13,
57,
-4,
4,
-56,
29,
-8,
-30,
-48,
-22,
23,
-9,
-58,
-36,
-17,
26,
61,
-18,
15,
44,
1,
-7,
-28,
-20,
13,
-14,
54,
-40,
-30,
0,
-6,
0,
14,
60,
-11,
-12,
8,
33,
11,
6,
19,
-17,
30,
-34,
62,
-1,
-29,
29,
-44,
2,
35,
-7,
-9,
11,
20,
27,
-20,
-53,
30,
42,
38,
41,
-18,
19,
-17,
20,
61,
13,
-11,
-15,
-14,
-36,
-2,
-8,
-2,
52,
58,
61
] |
Butzel, J.
Detroit Trust Company was appointed receiver in bankruptcy of J. L. Kelley Company by the United States district court for the eastern district of Michigan and ordered to forthwith file a report of the financial condition of the bankrupt, list its liabilities and assets, and make recommendations. In order to do this, it found it advisable to have an audit made, and accordingly employed Gibbs, Leslie & Company, public accountants, a corporation in which plaintiff, George K. Gibhs, was actively interested. The accountants, referred to herein as the company, had been working on an audit for the Kelley Company, whose business was very involved. The company had received payment on account from Kelley, but there was a balance of approximately $150 remaining unpaid on an incomplete audit. It was agreed that in consideration of the payment of the balance due and an additional sum, estimated to be about $600, the company would complete the audit. The Detroit Trust Company, as receiver, thereupon petitioned the court for authority to have the audit made for the sum of $750, and an order was so made. Later, the company informed an agent of the receiver that the books of the bankrupt were in such condition that nothing in them could be assumed to be correct, and that it would be necessary to obtain information from outside sources in order to build up a statement which would reflect the true condition; that this would cost an additional sum of $750. The company, was told to proceed with the-audit. It knew that the trust company had been appointed receiver. It must have known from its con tacts with the receiver, as well as from the very nature of the work, that it was working for a receiver. It unquestionably looked for its compensation to the receiver, to whom it rendered its bills. The trust company, as receiver, filed its final report showing an indebtedness of $1,500 due the company. The bankrupt made an offer of composition, and filed a $10,000 bond to pay a 10 per cent, composition and all of the expenses of administration; $750' was paid to the accountants by check of the receiver. The bankrupt failed, however, to make a sufficient deposit to pay many of the creditors and expenses of administration, including the balance of $750 due the company. An order was thereupon issued directing the bankrupt and its surety on the deposit bond to show causé why they should not pay the amounts due and unpaid. However, nothing further was paid. Plaintiff went to the referee in bankruptcy to ascertain why its claim had not been paid, and it is evident from the memorandum made by plaintiff, as well as by all the other circumstances, that the company was looking solely to the receiver for payment. Thereafter, plaintiff filed a verified petition in the United States district court setting forth that he was a certified public accountant and successor to Gfibbs, Leslie & Company, who were employed by the receiver to audit the books of the bankrupt; that it was agreed between the receiver and the company that the latter should receive $1,500 for its services; that it had presented its bill to the receiver before the estate was distributed, and that it had only received $750, and that when it demanded payment of the balance of $750 it was informed by the receiver that the estate had been distributed find that there were no funds available. It prayed that the Detroit Trust Company show cause why it should not pay the balance of $750. Upon the hearing, plaintiff’s petition was denied without prejudice. He thereupon began a suit in assumpsit, and set forth in the declaration that the Detroit Trust Company, receiver, had employed the company and that it was agreed between the receiver and the company that the sum of $1,500 would be paid for such services; that the services were rendered to the receiver, but that defendant, in its individual capacity, had not paid the balance of $750, for which plaintiff asked judgment. The declaration concluded with the common counts. Both declaration and testimony show that the work was performed for the receiver, and with the company’s full knowledge of the receivership; that the contract was not with the defendant individually, but with it as receiver. There was no mistake of fact or any reason to even remotely believe that the defendant was contracting in its individual capacity. Plaintiff, however, claims that inasmuch as the defendant neglected to present a petition'for authority to pay the additional sum of $750 for the audit, it should be held liable. The amounts that were paid to the creditors, as well as the partial payments made for expenses, were paid directly by order of the bankruptcy court. It is not claimed that the defendant either accepted or approved of the bond filed in the bankruptcy court. While it is not determinative of the question, there is no showing whatsoever that the failure to secure an order to pay the additional $750 in any way prejudiced plaintiff’s .rights. It is evident that the sole cause of the failure to recover was the fact that a bond, which proved to be worthless, had been accepted. The declaration alleges that the contract was with the receiver and not with defendant as an individual. Every action on the company’s part shows it was looking solely to the receiver. The trial court held that a receiver is responsible for indebtedness incurred without authority, and referring to the cases of In re Kalb & Berger Manfg. Co., 91 C. C. A. 573 (165 Fed. 895), and Vansenden v. Kerr, 89 W. Va. 62 (108 S. E. 483), found in plaintiff’s favor and rendered a judgment against defendant.
While the case presents a very close question, we believe that the trial court was in error under the facts in the instant case. The cases referred to by the court not only present different facts from the instant case, but they decide questions of practice and pleading under particular conditions. The rule laid down by the learned judge in the instant case is subject to certain qualifications. Where a contract is made solely with the receiver by one who has full knowledge of the facts and intends only to bind the receiver, without any intention of holding the receiver personally, and by his subsequent conduct' shows that he looks solely to the receiver, he cannot collect from the receiver personally when it is later ascertained that the bond filed by the bankrupt to pay the expenses was inadequate. We believe that the case very much resembles that of Wilson’s Estate, 252 Pa. 372 (97 Atl. 453), where the court said:
“There was no concealment or misrepresentation of the facts alleged, and the officers of the bank, in dealing with the receiver, were bound to take notice of, and recognize, the limits of his authority, and contracted with him at their peril (citing .cases). * # #
“In the present case there was no agreement that the receiver was to be bound in his individual capacity, as was suggested by the court in the above case, as a possible precaution. On the contrary, the attempt is to hold the receiver personally liable after the claimant was disappointed in not receiving payment out of the corporation’s estate. In absence of fraud,'or concealment, or an intention or agreement to assume liability, we are unable to agree with the contention that the receiver is personally, liable whenever he does an act in excess of his authority. The principle which holds that one dealing with a receiver is bound to know the limits of his authority, and contracts with him at his peril, does not sanction a shifting of the liability to the receiver, so long as he acts fairly and in good faith, and conceals or misrepresents nothing. The logical result of the principle referred to is the opposite conclusion — that the loss must be borne by the person upon whom it falls, unless the parties expressly, or by the form of the instrument, contracted for personal liability.”
Also, see Southern Supply Co. v. Mathias, 147 Md. 256 (128 Atl. 66).
Judgment of the lower court is reversed and the case remanded with directions to enter judgment for defendant, which will recover costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, and Wiest, JJ., concurred. Fead, J., did not sit. | [
-28,
4,
21,
-24,
-5,
-9,
11,
-25,
-32,
-23,
-3,
-11,
7,
14,
-36,
7,
13,
2,
-5,
-48,
55,
17,
-36,
-13,
-48,
-8,
7,
-50,
51,
-56,
-19,
-28,
2,
9,
-9,
2,
9,
-3,
2,
-38,
-29,
-4,
6,
47,
-4,
-43,
36,
-61,
62,
-8,
10,
32,
13,
-19,
1,
-59,
-4,
10,
-1,
-41,
23,
-33,
88,
-27,
-17,
-7,
8,
12,
50,
-17,
-12,
36,
20,
32,
20,
-41,
34,
-31,
-41,
-39,
0,
-56,
11,
1,
31,
-51,
7,
27,
-34,
47,
-50,
13,
-21,
32,
-2,
15,
0,
-13,
-5,
48,
-20,
-12,
-12,
43,
29,
-21,
40,
-36,
-27,
13,
55,
-34,
5,
-12,
-60,
3,
7,
-8,
-10,
-7,
-21,
17,
9,
-29,
24,
33,
36,
-7,
3,
26,
20,
16,
-20,
9,
-70,
-24,
-22,
-36,
-16,
39,
-26,
-4,
-12,
44,
-65,
9,
2,
3,
35,
-11,
-7,
19,
2,
36,
19,
37,
-5,
5,
43,
-65,
27,
-33,
-3,
-53,
-36,
7,
-22,
27,
-8,
43,
20,
-29,
1,
-15,
-30,
37,
15,
-33,
7,
21,
17,
-8,
6,
-25,
30,
-36,
68,
-9,
2,
-39,
-8,
34,
-20,
35,
-28,
17,
32,
45,
9,
7,
-24,
-5,
-24,
-14,
27,
-11,
71,
-20,
13,
-29,
-23,
38,
64,
36,
-13,
14,
-1,
-20,
25,
-9,
17,
25,
6,
24,
-2,
-15,
-6,
3,
-29,
-23,
-4,
-77,
-1,
-23,
-25,
33,
61,
9,
14,
-26,
-8,
-16,
-17,
10,
5,
-41,
-18,
-19,
23,
17,
-42,
57,
32,
-21,
-15,
-10,
-46,
6,
1,
16,
8,
17,
-74,
10,
15,
-45,
6,
32,
5,
-7,
19,
-8,
32,
-12,
24,
-26,
0,
-18,
-44,
14,
-55,
-39,
-43,
-20,
-29,
0,
25,
-35,
-17,
-17,
14,
1,
41,
-15,
22,
11,
-46,
-19,
-3,
12,
-6,
18,
-24,
13,
2,
48,
-43,
-1,
-12,
-28,
-2,
13,
-4,
-28,
44,
-28,
35,
2,
14,
23,
29,
36,
-21,
46,
3,
10,
1,
-3,
-50,
-6,
40,
-16,
4,
18,
-3,
15,
40,
-22,
28,
9,
4,
-9,
18,
29,
8,
-1,
20,
-9,
-15,
37,
-23,
-17,
-7,
39,
27,
75,
55,
38,
-46,
58,
15,
-52,
24,
24,
-26,
-67,
-54,
11,
43,
21,
24,
16,
-45,
-5,
2,
42,
-39,
-32,
-33,
5,
-24,
1,
-4,
-5,
32,
-64,
27,
10,
-5,
46,
-32,
35,
37,
22,
-70,
-19,
-7,
-4,
-51,
27,
4,
41,
-31,
40,
-36,
9,
35,
-14,
41,
30,
2,
-3,
21,
4,
-50,
-21,
56,
6,
29,
-17,
12,
-14,
-14,
-34,
9,
-36,
-14,
29,
-18,
-25,
-38,
14,
-4,
-28,
16,
7,
-7,
0,
-7,
21,
19,
-27,
-10,
9,
14,
10,
2,
3,
71,
57,
-12,
-17,
-32,
23,
38,
56,
19,
-3,
-3,
28,
-7,
-51,
35,
-5,
-37,
10,
70,
2,
39,
24,
7,
-3,
-18,
-17,
-35,
-22,
38,
-13,
-19,
58,
-14,
14,
4,
0,
-74,
7,
44,
-44,
-46,
20,
24,
19,
8,
40,
-16,
-17,
-31,
18,
15,
-7,
4,
-29,
30,
-42,
13,
-12,
-1,
-33,
-49,
-2,
-2,
-9,
2,
17,
13,
30,
-37,
-7,
73,
22,
22,
40,
-43,
3,
-38,
41,
3,
23,
58,
-36,
47,
20,
-4,
9,
-48,
-20,
4,
32,
-9,
-23,
27,
-14,
12,
4,
28,
24,
-21,
43,
7,
-23,
-41,
-60,
18,
-17,
28,
-6,
39,
-18,
42,
14,
-36,
10,
-8,
-7,
9,
-46,
-54,
-4,
-14,
-1,
20,
24,
7,
18,
31,
4,
8,
-36,
1,
-66,
-17,
-28,
0,
-66,
10,
20,
6,
-20,
-35,
32,
-11,
-44,
-62,
-28,
-14,
14,
44,
-10,
45,
17,
-27,
-19,
-4,
-31,
-18,
-50,
-32,
25,
-9,
1,
-8,
-68,
41,
-11,
-55,
-7,
-18,
-17,
-12,
79,
-3,
35,
32,
-14,
30,
34,
40,
37,
-25,
-2,
-3,
-11,
2,
28,
-28,
1,
24,
2,
-10,
-17,
-10,
-32,
-21,
-27,
4,
-59,
-24,
22,
49,
20,
2,
-10,
68,
45,
-13,
-17,
34,
-54,
5,
-41,
11,
14,
-9,
38,
55,
13,
-8,
-6,
53,
1,
-23,
2,
-16,
30,
5,
-30,
-53,
57,
-10,
6,
1,
47,
10,
24,
-7,
-16,
22,
-2,
-20,
-47,
-8,
-11,
-64,
2,
11,
35,
15,
28,
0,
-74,
7,
-46,
-25,
60,
12,
15,
-45,
10,
-39,
41,
43,
6,
21,
-12,
-3,
30,
-27,
2,
-33,
-18,
-51,
-49,
4,
-6,
-1,
-42,
-2,
-35,
-33,
-40,
-19,
-25,
6,
24,
-29,
30,
-42,
-55,
-52,
-32,
43,
17,
-2,
-27,
-30,
18,
4,
71,
-5,
-5,
42,
34,
12,
61,
-8,
12,
-14,
-43,
-41,
33,
-22,
45,
2,
-11,
21,
30,
-14,
22,
2,
-53,
-34,
19,
-66,
-15,
-52,
-35,
21,
15,
-2,
-36,
36,
8,
1,
43,
71,
-36,
33,
21,
21,
-14,
-21,
-9,
55,
-23,
6,
54,
88,
72,
-11,
-24,
-13,
46,
5,
35,
-7,
-19,
-52,
-49,
41,
13,
0,
-5,
26,
-23,
18,
8,
-13,
5,
-28,
-9,
-59,
49,
17,
-30,
-33,
-39,
-54,
-8,
-23,
29,
-18,
8,
9,
-16,
23,
-23,
40,
10,
-1,
-35,
-30,
6,
-67,
32,
-39,
17,
-46,
-16,
-61,
39,
-14,
-16,
0,
5,
0,
17,
-38,
-9,
-38,
-34,
-8,
37,
3,
-44,
-30,
10,
-28,
-36,
6,
-36,
15,
32,
-48,
4,
-15,
26,
44,
-11,
30,
-24,
-15,
6,
25,
-8,
-5,
33,
45,
-33,
41,
46,
-33,
13,
-6,
-1,
8,
15,
24,
-37,
40,
11,
-23,
13,
-74,
7,
30,
43,
-5,
40,
-19,
56,
9,
33,
-17,
46,
-39,
26,
34,
20,
18,
-10,
-12,
-80,
-17,
52,
11,
-29,
68,
42,
22,
32,
44,
-4,
-17,
21,
17,
-88,
-13,
-38,
26,
-38,
18,
-12,
-35,
-33,
41,
-20,
-16,
18,
-13,
-45,
9,
-17,
25,
15,
-42,
0,
-57,
0,
-22,
-40,
-55,
-40,
-10,
-22,
32,
21,
-11,
-54,
-12,
-2,
-23,
-6,
-58,
-32,
3,
-28,
18,
5,
-5,
-33,
10,
20,
-9,
30,
-32,
-42,
32,
-3,
1,
4,
46,
12,
48,
-6,
11,
-42,
29,
37,
13,
16,
1,
-41,
3,
28,
-27,
26,
27,
62,
-31,
5,
24,
-8,
25,
29,
-33,
7,
-24,
25,
52,
-1,
-11,
19,
-10,
46
] |
Butzbl, J.
Nils Evensen and wife, plaintiffs, are the owners of lot 40 of Oscar LeSure’s subdivision of sections 19 and 30, Greenfield Township, town 1 south, range 11 east, in the city of Detroit, Michigan. The property has a frontage of 100 feet on Stansbury avenue, and a depth of 330 feet. Through condemnation proceedings to open and widen Schoolcraft avenue, the city acquired the southerly 68.79 feet of lot 39, which is immediately north of and abuts the plaintiffs’ lot. The city, however, laid out School- craft avenue as a 40-foot street, paved the street, and huilt a six-foot sidewalk three feet from the curb. It left a strip of land from seven to eight feet in width between the sidewalk and plaintiffs’ property. Plaintiffs secured a decree enjoining the levying of assessments against their property for. the street widening, paving, and laying of sidewalk.
The city, in its appeal, claims that strip of property intervening between the sidewalk and plaintiffs ’ property was legitimately acquired solely for the purpose of making the street wider than 40 feet at some indefinite time in the future, when it expects to use the abutting strip in a “master plan,” so as to eventually make Schoolcraft avenue a super-highway, not 68.79 feet but 120 feet in width, and thus conform with the width of the avenue some considerable distance from plaintiffs’ property.
In the meantime, however, the city is the sole owner of the strip, may-sell it or use it for further street widening or any other purpose it sees fit. If, and when the street again is widened, and the city should use the intervening strip for street widening purposes, the question of an assessment against plaintiffs ’ property may then arise. For the present, the laying and paving of a street 40 feet in width, the building of a curb and a six-foot sidewalk, indicates that the street is only 40 feet in width, and the intervening strip belongs to the city. The street abuts the city’s property.
The case is ruled by Linski v. City of Detroit, 260 Mich. 385; Malolepszy v. City of Detroit, 260 Mich. 387; Kubit v. City of Detroit, 260 Mich. 388.
The decree of the lower court is affirmed, with costs to plaintiffs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
-13,
46,
23,
-31,
-5,
-12,
16,
6,
-28,
30,
-5,
-21,
69,
5,
25,
4,
13,
-17,
-22,
11,
-73,
-10,
-35,
-61,
-15,
60,
54,
10,
36,
6,
5,
-46,
-37,
38,
-9,
51,
13,
29,
46,
17,
41,
-26,
-18,
-47,
0,
-21,
32,
4,
49,
12,
-30,
40,
12,
-18,
-25,
-8,
-48,
48,
-43,
10,
-11,
3,
-9,
28,
36,
18,
29,
5,
45,
-86,
-39,
1,
12,
29,
47,
23,
32,
12,
-22,
-9,
1,
-19,
34,
15,
34,
2,
-35,
-28,
-21,
8,
-21,
-69,
50,
25,
-11,
24,
52,
-48,
-21,
-19,
1,
56,
19,
21,
-39,
-20,
-21,
-6,
29,
-21,
-47,
9,
31,
-16,
-15,
-16,
22,
35,
7,
2,
-58,
-4,
-7,
3,
-40,
0,
-10,
-17,
-9,
-63,
0,
4,
29,
22,
46,
47,
0,
22,
9,
50,
-1,
2,
-15,
-4,
-17,
24,
10,
-12,
-22,
-86,
-40,
-3,
-36,
13,
3,
14,
-19,
-16,
39,
-15,
-31,
-58,
16,
8,
-50,
14,
-54,
68,
11,
60,
53,
-28,
18,
-64,
-23,
15,
-18,
53,
0,
-36,
33,
-1,
47,
-32,
-39,
-30,
-45,
-37,
-19,
-24,
57,
-9,
-26,
4,
-20,
57,
-17,
31,
-31,
-64,
-22,
-17,
-4,
-17,
-26,
0,
29,
-8,
1,
11,
-4,
42,
10,
29,
73,
-10,
25,
11,
3,
-54,
9,
-22,
13,
-24,
-21,
25,
-8,
11,
74,
-29,
-4,
-24,
14,
-31,
-15,
10,
1,
28,
-34,
-39,
-8,
14,
-33,
9,
-18,
32,
-24,
-32,
61,
-12,
-11,
-18,
-10,
-21,
-2,
-21,
-22,
-16,
36,
40,
48,
63,
21,
-13,
23,
54,
7,
-3,
-60,
17,
-35,
39,
-25,
43,
-37,
-34,
-30,
-10,
14,
42,
-14,
-37,
-14,
26,
8,
42,
22,
36,
-18,
-21,
-8,
49,
-15,
-43,
-1,
0,
-3,
-27,
26,
44,
-21,
33,
-37,
12,
50,
-15,
5,
-4,
76,
18,
0,
-19,
-6,
-7,
-21,
-13,
14,
14,
40,
-1,
30,
23,
-10,
37,
-25,
0,
-5,
-3,
-39,
5,
24,
-11,
1,
47,
-4,
2,
50,
-12,
-73,
-38,
7,
24,
22,
15,
47,
26,
-60,
52,
8,
9,
-5,
-15,
-59,
35,
-44,
26,
10,
2,
-34,
24,
42,
30,
36,
-13,
-52,
-28,
-32,
34,
12,
11,
-34,
13,
-20,
46,
47,
-51,
-15,
-40,
-45,
33,
16,
-22,
57,
-2,
79,
1,
-22,
-21,
-4,
-43,
-20,
-9,
5,
11,
23,
-54,
2,
0,
-5,
-27,
0,
19,
-16,
37,
-79,
-17,
26,
-19,
38,
12,
-27,
-25,
74,
-16,
-23,
-4,
0,
-24,
-21,
37,
-22,
32,
7,
-19,
-10,
-27,
-13,
3,
4,
29,
-43,
16,
-3,
-16,
19,
-5,
-17,
-39,
-26,
-27,
-35,
27,
-43,
-17,
-3,
-2,
-29,
16,
-5,
-2,
23,
67,
-24,
-16,
16,
-8,
-8,
25,
59,
-19,
-4,
-16,
-9,
-48,
-21,
-11,
-32,
-29,
-1,
0,
-29,
46,
-19,
-9,
40,
14,
0,
27,
-37,
7,
-21,
-21,
-10,
-13,
0,
32,
23,
10,
-55,
27,
18,
19,
52,
0,
38,
10,
-10,
21,
4,
12,
-17,
15,
-21,
-55,
0,
-35,
-6,
38,
-26,
16,
1,
-16,
-30,
31,
-1,
51,
-23,
-47,
27,
-33,
-17,
5,
-16,
-5,
32,
1,
48,
21,
-5,
-9,
4,
-32,
-34,
2,
-19,
-11,
-10,
11,
6,
6,
-37,
16,
25,
-26,
-20,
29,
23,
22,
44,
2,
-45,
-53,
-5,
-43,
-1,
-17,
-15,
-56,
15,
19,
-1,
43,
22,
2,
44,
-12,
7,
-42,
0,
2,
-27,
6,
51,
-76,
-20,
12,
-17,
1,
-45,
17,
-4,
-4,
-3,
-25,
27,
52,
45,
-31,
22,
12,
2,
-18,
-44,
-39,
-30,
11,
26,
56,
20,
-24,
30,
6,
-38,
-11,
-25,
-63,
-44,
-21,
0,
-17,
14,
6,
-20,
67,
-2,
59,
19,
6,
58,
23,
-1,
-8,
36,
18,
6,
8,
5,
39,
-72,
18,
-10,
5,
-2,
18,
40,
-57,
55,
-21,
-2,
-4,
-21,
12,
-35,
-18,
-17,
-45,
-31,
29,
-23,
37,
-50,
39,
38,
-15,
25,
-10,
-9,
-19,
-21,
-22,
17,
-5,
-15,
-24,
-57,
-26,
47,
-24,
19,
-40,
-9,
53,
-30,
31,
17,
-24,
-9,
41,
60,
76,
35,
0,
-22,
-1,
42,
6,
27,
26,
13,
-4,
3,
-35,
21,
-77,
13,
15,
5,
18,
14,
-8,
-30,
68,
26,
15,
-61,
28,
3,
42,
-10,
-10,
46,
19,
1,
37,
-31,
8,
-3,
5,
-1,
1,
37,
-14,
-65,
-58,
17,
-76,
-9,
-36,
-29,
79,
-9,
19,
38,
-51,
-29,
25,
4,
-9,
24,
-95,
-6,
-31,
-38,
-36,
-77,
-29,
56,
27,
-34,
-25,
-24,
-2,
32,
34,
1,
-37,
-7,
22,
-37,
-15,
-50,
-33,
-17,
35,
25,
-51,
12,
5,
14,
0,
0,
22,
-70,
2,
-9,
3,
-26,
-28,
49,
-34,
-12,
11,
2,
-24,
-30,
-9,
25,
25,
34,
26,
-20,
6,
9,
3,
-32,
39,
-22,
-11,
38,
-62,
-7,
11,
1,
61,
0,
1,
-101,
20,
24,
52,
-16,
20,
-4,
-30,
36,
2,
4,
68,
-18,
0,
0,
8,
-71,
-7,
20,
-5,
4,
-11,
23,
4,
85,
18,
21,
26,
-36,
-21,
-3,
48,
34,
-30,
-32,
-56,
-53,
22,
14,
40,
-27,
1,
-7,
31,
-52,
29,
17,
-14,
32,
-4,
-26,
-27,
-14,
5,
82,
-11,
-27,
24,
11,
17,
12,
-89,
31,
64,
-10,
19,
-3,
-6,
16,
-9,
-91,
-38,
-21,
-18,
40,
-21,
46,
-56,
-84,
-22,
11,
20,
16,
44,
-2,
23,
13,
1,
-30,
9,
-47,
21,
37,
-38,
-29,
-2,
12,
-25,
-39,
-7,
0,
72,
-34,
-38,
-39,
-58,
-22,
11,
-31,
-30,
-109,
27,
13,
22,
10,
21,
-60,
1,
-64,
-4,
-25,
17,
-24,
60,
5,
12,
-17,
-10,
39,
-23,
36,
-67,
-1,
-53,
48,
13,
-19,
16,
53,
-5,
13,
-21,
27,
-28,
7,
20,
34,
32,
-56,
-42,
-39,
4,
-17,
3,
17,
27,
-17,
-29,
17,
0,
24,
10,
31,
12,
-73,
8,
-7,
0,
16,
-16,
-40,
-3,
0,
-14,
7,
7,
13,
42,
-53,
-3,
25,
1,
-34,
17,
-9,
40,
17,
-13,
-38,
-17,
-19,
67,
2,
10,
13,
33,
13,
21,
-39,
0,
79,
-28,
45,
4,
-37,
41,
31,
-14,
44,
7,
-25,
63,
9,
-10,
28,
-2,
-39,
81
] |
Clark, J.
The parties were partners in a restaurant business. Plaintiff was wrongfully excluded by defendant, who took over the assets. Plaintiff filed bill for accounting, dissolution, and other relief. He had decree. Defendant appeals.
The trial judge found the value of the partnership assets to be $3,000. This is challenged. The finding of value is within the evidence and not against the preponderance thereof, and therefore is permitted to stand. No other question merits discussion.
Affirmed, with costs to plaintiff.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
0,
21,
-23,
7,
-14,
-3,
15,
13,
-3,
39,
0,
16,
61,
1,
5,
27,
-9,
-17,
14,
-48,
-4,
-12,
-59,
12,
0,
18,
38,
-5,
-8,
16,
-16,
-48,
-18,
-3,
-26,
42,
4,
31,
-16,
-12,
29,
-8,
31,
-36,
-10,
33,
-9,
-59,
24,
-22,
1,
-18,
-2,
-5,
47,
-21,
-24,
17,
-32,
-15,
4,
16,
-14,
-16,
25,
-11,
-7,
-37,
4,
-9,
-24,
45,
0,
-12,
-38,
-97,
-27,
-5,
-16,
-36,
9,
-12,
13,
32,
-25,
39,
12,
17,
10,
-5,
-38,
33,
-25,
27,
-43,
9,
10,
-12,
22,
-18,
40,
5,
-69,
3,
-15,
63,
-24,
0,
1,
9,
-8,
-11,
38,
-10,
-33,
11,
-15,
-40,
-23,
-38,
-3,
37,
15,
-25,
38,
-19,
-8,
1,
-19,
34,
15,
-3,
-69,
0,
-23,
-46,
-20,
54,
-47,
16,
68,
-20,
-3,
28,
1,
-8,
-15,
0,
-7,
-14,
-2,
64,
6,
37,
20,
-7,
-20,
0,
50,
-77,
-33,
-2,
-17,
-12,
49,
-13,
25,
28,
9,
-44,
29,
15,
-35,
-8,
-28,
49,
-13,
-45,
-37,
-44,
12,
41,
17,
-33,
65,
-22,
-20,
-2,
-66,
6,
4,
0,
-18,
26,
0,
-22,
58,
33,
13,
9,
-31,
-22,
5,
-14,
0,
-14,
102,
20,
-45,
0,
-17,
0,
5,
-71,
-58,
-1,
22,
-59,
10,
-6,
0,
-22,
-32,
-23,
-44,
-62,
-16,
2,
0,
-7,
-53,
33,
-9,
-26,
6,
-4,
25,
9,
27,
0,
-36,
-2,
-42,
-34,
2,
-1,
12,
49,
2,
44,
-26,
-24,
-24,
54,
-15,
-17,
-18,
58,
-27,
-13,
-13,
44,
-24,
3,
-9,
-3,
36,
-8,
15,
28,
13,
-13,
1,
29,
23,
-27,
-38,
34,
-76,
36,
17,
-4,
-22,
-12,
20,
7,
-25,
10,
65,
-12,
9,
19,
35,
-80,
50,
-8,
-23,
11,
-1,
-22,
16,
-24,
23,
76,
-32,
-34,
18,
46,
1,
-20,
-8,
18,
2,
-8,
74,
4,
-48,
46,
-1,
-19,
1,
31,
-10,
-44,
6,
-20,
48,
-60,
0,
-5,
23,
48,
9,
-2,
7,
-38,
22,
-25,
11,
8,
56,
-51,
-9,
14,
18,
-2,
-5,
8,
13,
-28,
-47,
-25,
-9,
55,
68,
-5,
3,
-12,
-46,
0,
15,
-59,
-10,
-34,
-30,
41,
-7,
-6,
-20,
41,
-4,
32,
-29,
26,
-50,
21,
-7,
1,
-32,
9,
-27,
-56,
14,
27,
33,
41,
16,
-29,
-21,
-19,
-30,
8,
15,
-8,
-2,
33,
-61,
-1,
9,
-22,
-14,
-11,
28,
0,
-52,
-29,
30,
-62,
-7,
35,
-7,
20,
17,
-1,
-28,
33,
-1,
-36,
-11,
29,
63,
-13,
-20,
-12,
-6,
-52,
-44,
0,
2,
-1,
-82,
19,
-62,
-53,
50,
3,
-8,
-25,
17,
2,
-34,
-2,
-17,
-22,
-4,
4,
-26,
-3,
3,
20,
-22,
35,
0,
45,
-11,
0,
2,
-58,
7,
-18,
69,
4,
-16,
-43,
31,
-38,
-15,
-28,
13,
53,
-18,
45,
61,
29,
-49,
25,
-14,
29,
0,
41,
-1,
35,
-6,
11,
-51,
12,
-30,
21,
12,
-13,
29,
20,
33,
10,
-12,
-6,
18,
29,
-35,
-45,
-16,
5,
-15,
-30,
25,
-15,
-45,
-30,
32,
0,
-45,
6,
56,
-15,
-37,
-13,
21,
59,
18,
53,
36,
-19,
-48,
23,
-43,
-6,
-45,
10,
45,
-13,
14,
57,
-15,
-4,
-39,
3,
29,
-39,
15,
-16,
-55,
36,
-12,
19,
2,
41,
0,
-6,
-2,
24,
-10,
5,
35,
41,
-11,
-14,
29,
5,
14,
-16,
-60,
2,
-67,
2,
33,
-52,
-7,
-13,
24,
-9,
-7,
-11,
12,
18,
-3,
-26,
15,
-17,
-6,
17,
-31,
22,
-2,
-16,
-75,
18,
44,
48,
28,
-14,
-32,
-39,
6,
-21,
36,
-30,
-23,
-37,
11,
27,
-1,
-20,
-53,
-55,
15,
-36,
-38,
-5,
4,
-5,
43,
61,
-6,
-12,
59,
-12,
34,
-23,
-3,
23,
34,
-3,
-2,
-26,
30,
0,
-2,
12,
11,
0,
32,
-42,
15,
-18,
-15,
62,
-6,
28,
-54,
-25,
71,
22,
3,
24,
-7,
-11,
20,
42,
-43,
-12,
41,
35,
32,
63,
16,
13,
-5,
-26,
31,
-32,
23,
4,
42,
55,
-9,
5,
19,
37,
52,
13,
-34,
2,
31,
34,
59,
46,
-59,
-24,
-47,
9,
41,
-90,
-18,
8,
-19,
-17,
23,
0,
29,
-35,
-36,
47,
-26,
-55,
-31,
13,
17,
55,
-10,
22,
-15,
-45,
19,
21,
26,
10,
-32,
18,
-21,
41,
12,
9,
-11,
13,
-10,
-8,
-4,
58,
-36,
-19,
45,
-64,
29,
-32,
-24,
8,
-5,
8,
12,
-16,
35,
-25,
34,
16,
-41,
57,
8,
-49,
-31,
-18,
5,
24,
-25,
2,
-11,
27,
-11,
0,
-32,
80,
-18,
27,
-18,
41,
6,
18,
19,
0,
-25,
-15,
-39,
10,
-93,
-17,
-9,
-24,
-5,
-33,
-2,
-7,
-55,
5,
1,
-5,
-23,
44,
22,
36,
11,
-10,
1,
-19,
-6,
52,
-10,
-34,
11,
-25,
18,
55,
0,
24,
37,
2,
36,
-13,
2,
9,
8,
-33,
-14,
52,
29,
16,
-2,
1,
-13,
56,
10,
1,
-16,
-33,
10,
0,
-4,
7,
-32,
-9,
-27,
-26,
3,
9,
2,
-18,
-7,
-36,
-4,
7,
-32,
-12,
37,
-74,
-26,
9,
22,
35,
10,
26,
-65,
-37,
22,
3,
-27,
38,
50,
0,
-71,
4,
-1,
-45,
31,
37,
44,
-29,
-7,
-32,
-26,
2,
3,
-1,
-6,
25,
-15,
-24,
4,
19,
-18,
32,
21,
-12,
3,
65,
-2,
22,
28,
31,
13,
-3,
-44,
-21,
-18,
10,
-36,
0,
9,
17,
36,
-7,
-35,
34,
8,
-14,
-7,
-31,
34,
2,
-34,
-43,
46,
0,
-40,
5,
-50,
36,
58,
-8,
25,
8,
17,
27,
18,
38,
56,
-9,
15,
35,
13,
26,
2,
-1,
2,
35,
-26,
-16,
8,
-34,
-22,
13,
-43,
-3,
-12,
-4,
18,
-7,
-55,
-41,
-13,
-36,
1,
80,
-16,
-75,
48,
65,
-17,
1,
-33,
46,
-27,
-3,
-21,
29,
-67,
1,
-38,
-7,
21,
-8,
-24,
-31,
-52,
-4,
7,
3,
15,
1,
11,
-15,
-14,
-46,
-1,
-32,
-31,
-52,
-31,
2,
22,
-11,
-53,
28,
63,
2,
-22,
5,
26,
2,
8,
-1,
22,
3,
42,
-11,
11,
-5,
12,
8,
42,
21,
11,
-27,
-65,
37,
21,
1,
35,
-8,
19,
34,
-30,
11,
-15,
13,
57,
29,
-10,
24,
-44,
23,
8,
24,
-42,
58,
-11,
41
] |
Wiest, J.
(dissenting). This is an appeal by defendant from a judgment ousting him from the office of attorney for the city of Battle Creek. Battle Creek operates under a home rule charter, with an elected mayor, who is ex officio a commissioner, and four commissioners. The charter provides for appointment of a city attorney for a two-year term. At a regular meeting of the city commission on April 5, 1932, all members being present, John A. Wagner was appointed city attorney for a term of two years from that date. Commissioner Hoyt voted for the appointment, but stated that he did so for the purpose of moving reconsideration. No motion to reconsider or other dilatory motion was made at that meeting. The next day, April 6th, Mr. Wagner filed written acceptance of the appointment and oath of office and entered upon the duties of city attorney. The next day, April 7th, following a meeting of the commission to canvass municipal election votes, commissioner Hoyt filed a notice, directed to the city commission and clerk, of his intention, at the regular meeting on April 11th, to move reconsideration of. the action appointing Mr. Wagner. At the meeting on April 11th, Mr. Hoyt moved reconsideration and the motion prevailed, an intervening election having changed the personnel of the commission. On April 18th, the commission appointed Walter P. North city attorney, and he qualified, .demanded the office, and, being refused, filed an information in the nature of quo warranto.
Rule No. 28, Battle Creek City Manual, provides:
“A motion to reconsider a vote on any question shall not be in order after one regular meeting of the commission has intervened between the decision and motion for reconsideration, but it shall be in order for any commissioner of the prevailing- side to move for a reconsideration thereof during that period, provided that he shall file with the city clerk, within 48 hours of the time at which the motion to be reconsidered was passed, a notice of his intention to so move to reconsider it, and the same number of votes shall be required to reconsider any action of the commission as was required to pass or adopt the same. ’ ’
Rule No. 35 provides:
“Rules of parliamentary practice comprised in Roberts’ Rules of Order shall govern the commission in all cases in which they are applicable, provided they are not in conflict with the laws of the State of Michigan.”
The governing point is whether the commission, in voting the appointment of Mr. Wagner, exercised the power of appointment to a finality. Much depends upon whether the exercise of such power was administrative, executive, or legislative. If administrative or executive, and plenary in nature, the exercise thereof was a finality. If legislative, its exercise might, or might not, depending on circumstances, be open to reconsideration. Was the power, in the instance at bar, exercised by the commission acting in a legislative capacity? It should be remembered that, under a commission form of gov ernment, former checks and balances are removed, and, instead of confirming appointees of the executive, the commission is vested with former executive and administrative power and acts direct and not as a check in a confirming or rejecting capacity.
The power of appointment to a public office, if plenary, is, in its exercise, an executive function. When the power is plenary and is exercised and the appointee accepts, by qualifying, the office is filled, and, until there is a vacancy, no other appointment can be made. Speed v. Common Council, 97 Mich. 198, citing and quoting from People, ex rel. Mosher, v. Stowell, 9 Abb. N. C. (N. Y.) 456, where the common council had plenary power to appoint. The charter of Battle Creek created the office of city attorney and vested power in the commission to fill it by appointment. This called for executive action without any exercise of legislative functions.
“Appointments to office, by whomsoever made, are'intrinsically executive acts. Taylor v. Commonwealth, 3 J. J. Marsh. (26 Ky.) 401.” State, ex rel. Coogan, v. Barbour, 53 Conn. 76, 85 (22 Atl. 686, 55 Am. Rep. 65).
It was said in Achley’s Case, 4 Abb. Prac. (N. Y.) 35, 37:
“The exercise of the power of appointment to office is a purely executive act; and when the authority conferred has been exercised, it is final, for the term of the appointee.”
See, also, Casler v. Tanzer, 134 Misc. 48 (234 N. Y. Supp. 571); State, ex inf. Hadley, v. Washburn, 167 Mo. 680, 696 (67 S. W. 592, 90 Am. St. Rep. 430); Marbury v. Madison, 1 Cranch (5 U. S.), 137.
Plaintiff invokes the mentioned procedure rule and contends that reconsideration was allowable. It is not necessary, and we do not decide the question of whether reconsideration could be had after change in personnel of the commission.
We call attention, however, to the following comment in Kendell v. City Council of Camden, 47 N. J. Law, 64 (54 Am. Rep. 117):
“In the present case the common council took no proceedings to reconsider or change their action until a year after their decision had been given; and when nine new members were introduced, with the hope of a better result the former contestant renewed his protest. The impolicy of permitting such efforts to unseat members of a municipal body when the election of new members makes it feasable because of the increased bitterness of partisan strife and personal feeling that must be excited, makes it desirable that some remedy shall be found, if possible, to prevent them. It does not seem to me to be difficult in this case to indicate the remedy and the reasons for it. The resolution of the council, appointing a committee to investigate again the right of the present incumbent, Kendell, to his seat, is not a mere attempt at reconsideration, by a legislative body, of its own action, but it is, in effect, an appeal to another tribunal composed of different members.”
The rule has no application to the appointment, for, in exercising such plenary power, a final result was reached, and the rule could not annex to the appointment a possibility of disfeasance, or render it inchoate. Defendant had a right to act upon the record of the meeting, and, upon qualifying, assert his legal rights thereunder.
Legislative power to reconsider confirmation of an executive appointment was involved and decided in Attorney General, ex rel. Dust, v. Oakman, 126 Mich. 717, and People, ex rel. MacMahon, v. Davis, 284 Ill. 439 (120 N. E. 326, 2 A. L. R. 1650), and plaintiff cites such cases as determinative of the issue at bar. In those cases the finality of confirmation was arrested by motions to reconsider at the same sessions. But passing this, the pivotal question in the case at bar was not there presented nor decided.
2 McQuillin, Municipal Corporations (2d Ed.), § 644, states the law and draws the true line between exercise of plenary power of appointment to office and power of confirmation. We quote:
“Accordingly the law appears settled that after an election, acceptance, and qualification by the officer the council cannot reconsider and elect another. * * * (Citing State, ex rel. Burdick, v. Tyrrell, 158 Wis. 425 [149 N. W. 280]; State, ex rel. Calderwood, v. Miller, 62 Ohio St. 436 [57 N. E. 227, 78 Am. St. Rep. 732]; Regina, ex rel. Acheson, v. Donoghue, 15 Up. Can. Q. B. 454.) But the application of the rule to the confirmation of an executive appointment has been denied. Thus an appointment of a member of a board by the mayor and confirmation by the legislative body, it has been held, may be reconsidered.” Citing, upon the last point, People, ex rel. MacMahon, v. Davis, supra, and Attorney General, ex rel. Dust, v. Oakman, supra.
For pertinent comments on the Davis Case see City of Kankakee v. Small, 317 Ill. 55 (147 N. E. 404).
“There appears to be some conflict in the authorities as to what constitutes an appointment to office. The most approved statement is that an appointment has been made where the power is absolute and the appointee has been determined on and no further consent or approval is necessary.” 22 R. C. L. p. 422, citing Draper v. State, ex rel. Patillo, 175 Ala. 547 (57 South. 772, Ann. Cas. 1914 D, 301).
“It seems that the element of the exercise of discretion is of the essence of an appointment.” 22 R. C. L. p. 422.
“The weight of authority appears to be in favor of the view that an appointment to office cannot be recalled after the appointing power has once exercised its functions.” 22 R. C. L. p. 423.
“There is, however, a conflict of authority as to this when the appointing power is vested in a collective body. Some courts hold that in making an appointment to public office the appointing body is exercising a legislative function and that the appointment is revocable under the ordinary parliamentary rules. On the other hand some courts hold that the making of an appointment to public office is a glossi-executive duty, incapable of revocation when once exercised.” 22 R. C. L. p. 424, citing to the last point Speed v. Detroit, 98 Mich. 360 (22 L. R. A. 842, 39 Am. St. Rep. 555).
“The appointment of officers is intrinsically an administrative or executive act.” 22 R. C. L. p. 424.
In 43 C. J. p. 510, under the title “municipal corporations” and subject “reconsideration and rescission” it is well stated:
“A municipal council has the power, if the rights of third persons have not intervened and if vested rights are not interfered with, to reconsider or rescind action previously taken provided this subsequent action is not prohibited by, or inconsistent with, charter or statutory provisions, or rules of the council; and the fact that a statute is silent on the subject of submitting a proposition for reconsideration of a decision does not operate to forbid it. On the other hand, if the rights of third persons have intervened and vested rights would be interfered with, no right of reconsideration or rescission ex ists; and such is the case where the action taken by the council exhausts its power in the matter sought to be reconsidered.”
And in note 52 (c), p. 511, it is stated, under the heading “appointment or election of officer:”
“The common council of a city having once appointed or elected a person to an office, for a stated term, in pursuance of authority given to it by law, its power in that regard is exhausted and it cannot thereafter rescind and annul the appointment, and appoint or elect another person to the same office,” citing State v. Phillips, 79 Me. 506 (11 Atl. 274); People, ex rel. Mosher, v. Stowell, supra.
Also note 51 (c):
“After election of a city attorney by the common council and his acceptance and qualification, the council could not reconsider their action and elect another person,” citing State, ex rel. Burdick, v. Tyrrell, supra, and directing attention to State, ex rel. Scofield, v. Starr, 78 Conn. 636 (63 Atl. 512), where the rule is recognized.
The parliamentary rules of the commission were procedural only, where applicable, and conferred no substantive right to act over after exhausting power in action taken.
This court said in Speed v. Common Council, supra, 207:
“It is well settled that when the appointing power has once exercised its functions it has no more control.” (Appointment of city counselor by mayor.)
See, also, Attorney General, ex rel. Speed, v. Corliss, 98 Mich. 372.
Defendant was duly appointed city attorney and the attempted reconsideration and appointment of plaintiff was a nullity.
The judgment in the circuit court should he reversed and ouster of defendant denied. Defendant should recover costs.
McDonald, C. J., concurred with Wiest, J.
Butzel, J. For reasons stated in Thorne v. Squier, ante, 98, the judgment is affirmed.
Clark, Potter, Sharpe, and Fead, JJ., concurred with Butzel, J. North, J., did not sit. | [
17,
1,
5,
5,
-45,
52,
-14,
36,
-16,
44,
33,
-38,
55,
2,
7,
-14,
33,
-10,
24,
13,
-26,
-31,
-6,
3,
-5,
-15,
17,
-24,
-37,
-26,
16,
-56,
5,
-17,
-39,
-12,
30,
32,
30,
-31,
30,
-19,
13,
13,
-35,
-17,
-25,
-23,
-27,
-43,
25,
42,
-38,
24,
-30,
-20,
38,
2,
9,
21,
-45,
59,
-26,
60,
29,
0,
-22,
51,
58,
-53,
-9,
31,
32,
-5,
20,
-9,
11,
-46,
0,
54,
-42,
35,
35,
-6,
41,
16,
38,
15,
12,
-27,
36,
35,
-20,
-5,
48,
15,
11,
-34,
61,
-74,
14,
5,
22,
40,
-49,
-51,
18,
-26,
73,
-27,
44,
25,
28,
-59,
-20,
11,
-12,
-8,
37,
-27,
64,
13,
-7,
76,
17,
-4,
-26,
-4,
-39,
-33,
-36,
42,
40,
-52,
41,
41,
16,
6,
7,
22,
63,
47,
19,
0,
-17,
-13,
-14,
19,
-26,
19,
-22,
-13,
18,
22,
-4,
6,
33,
-46,
49,
2,
-9,
29,
0,
-35,
-18,
-21,
4,
-12,
22,
17,
38,
10,
0,
-7,
22,
-43,
-5,
1,
-17,
-2,
-39,
15,
29,
-35,
35,
-10,
33,
-31,
1,
-52,
6,
-1,
-8,
-35,
38,
38,
0,
43,
6,
0,
-42,
-8,
-14,
28,
-34,
7,
3,
-24,
24,
28,
-35,
-3,
-32,
-50,
33,
0,
-23,
14,
5,
-8,
56,
-20,
33,
43,
-56,
6,
14,
7,
-26,
18,
32,
13,
-4,
-28,
3,
13,
-27,
70,
17,
-31,
-17,
34,
64,
57,
-55,
7,
-36,
-17,
-7,
19,
33,
-51,
16,
27,
-39,
0,
-10,
-26,
-32,
29,
28,
9,
0,
-4,
-28,
7,
14,
53,
33,
-12,
-2,
21,
28,
33,
-46,
42,
-11,
-58,
24,
6,
-11,
5,
7,
44,
2,
36,
-24,
4,
37,
-28,
19,
7,
-21,
35,
39,
-12,
16,
23,
-7,
-39,
26,
27,
-6,
48,
13,
-13,
-17,
-18,
37,
13,
34,
4,
3,
18,
22,
13,
-25,
22,
27,
-79,
2,
30,
0,
-15,
-76,
-47,
24,
7,
-34,
-70,
18,
-24,
8,
10,
56,
-21,
34,
7,
-41,
9,
-4,
-45,
52,
0,
-5,
-7,
5,
-36,
2,
-14,
-15,
15,
-35,
-7,
-33,
-38,
-5,
-45,
18,
-52,
7,
41,
-34,
-27,
-15,
2,
-25,
-5,
13,
27,
-36,
-28,
-48,
-9,
-30,
-5,
14,
23,
-41,
57,
-24,
-68,
-10,
3,
40,
-31,
17,
42,
-28,
-40,
-9,
7,
-7,
-6,
-30,
30,
0,
-11,
-14,
-3,
-6,
10,
26,
45,
-12,
27,
-18,
16,
25,
59,
-10,
-34,
46,
-37,
38,
-36,
-4,
29,
62,
9,
-13,
13,
-42,
-23,
24,
-6,
18,
-40,
38,
-1,
19,
-36,
14,
-71,
-16,
-21,
-13,
-20,
-18,
-2,
-42,
-2,
-14,
15,
-41,
-40,
-47,
-5,
-26,
61,
23,
25,
9,
-46,
-12,
27,
4,
-22,
46,
10,
4,
-56,
-9,
-20,
-14,
-2,
-40,
43,
27,
24,
-5,
23,
-22,
39,
-46,
-1,
-9,
7,
12,
4,
-24,
-26,
-17,
23,
-6,
-4,
0,
-44,
37,
-30,
9,
43,
-5,
-6,
16,
40,
6,
4,
-35,
-1,
-20,
20,
-41,
-34,
-3,
-40,
14,
-53,
0,
15,
-15,
9,
29,
18,
-34,
46,
24,
5,
-28,
-20,
21,
-36,
-19,
-27,
-33,
81,
-38,
-45,
-3,
-24,
20,
8,
9,
-5,
13,
-16,
-25,
11,
20,
10,
0,
-8,
13,
1,
-9,
-15,
-36,
9,
38,
-25,
-33,
14,
-27,
-14,
-25,
21,
-3,
6,
8,
9,
22,
-4,
33,
-5,
6,
28,
-7,
8,
54,
40,
17,
26,
-28,
38,
16,
23,
30,
19,
-9,
11,
10,
5,
-27,
-3,
20,
-32,
25,
-32,
-15,
-22,
-38,
-22,
-64,
-20,
-34,
20,
36,
17,
35,
-27,
0,
25,
-29,
32,
-17,
15,
1,
-4,
11,
13,
-16,
-3,
-35,
-14,
-1,
72,
-8,
15,
51,
-25,
-14,
-14,
46,
-42,
-20,
-64,
34,
-18,
13,
4,
-14,
-51,
-4,
-9,
-13,
10,
3,
29,
16,
-2,
7,
11,
2,
-62,
11,
26,
-50,
-9,
-2,
13,
33,
36,
16,
-38,
17,
-27,
45,
18,
38,
-53,
-4,
24,
-26,
-48,
-49,
23,
26,
10,
-29,
-5,
31,
14,
17,
-36,
11,
6,
45,
32,
-32,
14,
-10,
-43,
-27,
-32,
-13,
2,
-36,
-14,
23,
17,
6,
19,
16,
-54,
2,
-2,
8,
28,
24,
-2,
-19,
-26,
45,
33,
-48,
2,
0,
-39,
-14,
-26,
-14,
-1,
-28,
11,
7,
-7,
-3,
-17,
6,
19,
19,
-45,
-31,
-12,
27,
31,
-37,
-6,
27,
-54,
22,
-31,
54,
-20,
-23,
30,
18,
14,
28,
10,
5,
4,
-7,
9,
-7,
23,
2,
-26,
-56,
-15,
-37,
-21,
-6,
14,
-28,
27,
4,
7,
-23,
10,
1,
13,
1,
52,
-11,
14,
23,
0,
8,
-29,
-17,
-21,
13,
-8,
6,
-8,
0,
-29,
29,
-37,
-24,
3,
-16,
15,
-47,
-11,
-3,
-13,
-32,
-8,
9,
-66,
-34,
29,
20,
34,
-27,
-54,
22,
13,
-14,
-1,
-1,
10,
-51,
19,
-17,
93,
-7,
-13,
-17,
39,
13,
-25,
26,
-29,
-2,
26,
-36,
-15,
4,
0,
14,
-1,
-29,
-18,
16,
-18,
-8,
30,
-9,
-14,
2,
0,
-14,
-12,
-20,
45,
38,
44,
30,
-31,
9,
8,
-35,
18,
-19,
34,
-1,
23,
-31,
0,
-43,
-23,
3,
0,
-29,
-19,
3,
-28,
-2,
86,
35,
-58,
8,
-39,
-44,
-50,
22,
39,
-27,
-52,
-12,
-10,
-20,
3,
-10,
11,
-35,
-60,
-14,
13,
1,
-60,
-36,
13,
-37,
12,
4,
58,
33,
-3,
-42,
0,
2,
19,
-10,
23,
-16,
81,
-17,
-10,
45,
-41,
-29,
-18,
33,
31,
1,
4,
-17,
-1,
-4,
-26,
37,
-48,
-60,
-41,
-28,
51,
35,
50,
-10,
-2,
-34,
-33,
2,
-10,
-20,
7,
10,
0,
-3,
-53,
5,
-8,
40,
-16,
-9,
-21,
-67,
-36,
1,
-5,
0,
8,
-26,
22,
-2,
26,
-30,
-6,
11,
41,
9,
35,
11,
33,
-21,
-39,
28,
-1,
25,
12,
12,
11,
-53,
6,
-12,
30,
43,
16,
-27,
-8,
-27,
-20,
-35,
-13,
-10,
19,
29,
41,
-5,
70,
-3,
20,
-9,
-17,
-29,
-20,
-7,
-15,
6,
-82,
0,
-7,
-33,
-33,
-5,
26,
24,
64,
-34,
-3,
6,
5,
19,
29,
-3,
12,
35,
12,
21,
88,
-63,
24,
8,
14,
-36,
7,
0,
-3,
-44,
-34
] |
Fead, J.
Defendant Simula and plaintiff live in northern Michigan and are brother and sister. They desired to attend the funeral of a relative in the city of Detroit. Simula had an automobile, and plaintiff proposed that he drive to Detroit and she would pay for the gasoline, his meals, and the repairs, if any, for the car. The offer was accepted, and they started on the trip, and had not proceeded far when the automobile went into a ditch at a turn in the road and plaintiff was injured.
In the declaration, first filed, plaintiff alleged that she “was being conveyed as a guest,” and the accident occurred by reason of defendant’s negligence. That declaration stated no case because it failed to allege that the accident was “caused by the gross negligence or wilful and wanton misconduct” of defendant. 1 Comp. Laws 1929, § 4648. In an amended declaration plaintiff alleged that she “was being-conveyed as a passenger for hire.” That declaration, as pointed out later, released defendant insurance company from liability to the principal defendant. In still another amendment she alleged that she was a “passenger and guest paying for her transportation. ’ ’
Plaintiff tried the case on the theory she was a passenger for hire, and the court submitted it to the jury on an issue of ordinary negligence on the part of defendant, and plaintiff had judgment for $1,000 damages. Upon the judgment plaintiff sued out a writ of garnishment against defendant company, the insurance carrier for her brother. The insurance company filed a disclosure of no indebtedness, and demanded trial of the issue thereon. The court tried the issue, and found the insurance company liable. The insurance company prosecutes this appeal, claiming that, if plaintiff was a guest, the statute barred recovery unless the driver of the car was charged with and was guilty of wanton or wilful misconduct, and, if plaintiff was a passenger for hire or paying for her transportation, the policy of insurance expressly relieved the insurance company from liability.
The insurance policy required the company to defend any suit brought against the assured to enforce a claim, whether groundless or not, and to pay any judgment not in excess of the limit of liability mentioned in the policy, but provided:
“This policy does not cover while the automobile herein described is being used for carrying passengers for a consideration actual or implied or rented or leased. (Incidental purchase of gasoline by a passenger is permitted.)”
Under her declaration as amended, plaintiff recovered a judgment against her brother on the ground that she was a “passenger and guest paying for her transportation.” Such relationship was within the exception of the policy.
But plaintiff now claims that in fact she was not a passenger for hire. Whether plaintiff was a gratuitous passenger or one for hire is not here for determination. Having prevailed in the principal suit on the theory that she was “paying for her transportation,” she estopped herself from now recovering in an ancillary garnishment proceeding on the insur anee policy which expressly excludes from its terms damages arising while “carrying passengers for a consideration.” Chatham-Trenary Land Co. v. Swigart, 245 Mich. 430; Hassberger v. General Builders’ Supply Co., 213 Mich. 489.
The judgment against the insurance company is reversed, with costs to appellant, and the cause remanded to the circuit court with direction to enter judgment for defendant insurance company.
McDonald, C. J., and Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
-23,
6,
13,
-38,
45,
-3,
34,
-26,
1,
-20,
5,
-19,
50,
4,
-1,
0,
29,
7,
-4,
-32,
-9,
-53,
-30,
3,
-23,
-18,
66,
-29,
13,
-19,
13,
9,
12,
-27,
6,
-9,
-28,
14,
-44,
68,
28,
13,
46,
-17,
13,
-13,
16,
-38,
16,
-12,
28,
-12,
-47,
-14,
-26,
-47,
7,
1,
-6,
19,
-15,
-24,
31,
-29,
-53,
13,
13,
89,
-17,
44,
-4,
49,
12,
38,
-21,
-19,
-24,
8,
14,
-13,
12,
-66,
15,
-71,
-28,
38,
-36,
-11,
-5,
-50,
-50,
-29,
-23,
-6,
4,
22,
-23,
3,
-13,
-9,
5,
23,
23,
26,
-10,
33,
-4,
-37,
7,
-7,
-50,
6,
18,
-31,
1,
-1,
-36,
19,
29,
-28,
-9,
-60,
19,
-18,
-16,
-15,
39,
9,
9,
13,
81,
10,
6,
31,
6,
18,
-27,
-19,
-22,
36,
1,
-1,
13,
50,
9,
55,
39,
18,
-22,
-20,
8,
45,
5,
16,
-33,
-14,
-21,
-27,
46,
-21,
4,
-28,
10,
52,
-28,
1,
-16,
57,
6,
-4,
14,
-32,
-14,
-46,
45,
19,
-19,
-15,
-83,
-31,
-15,
68,
-7,
-11,
13,
-94,
25,
2,
-15,
-29,
42,
-27,
-41,
53,
-22,
84,
-4,
9,
7,
-8,
47,
-48,
-29,
10,
1,
-39,
-36,
0,
44,
-30,
6,
-3,
-32,
-32,
-29,
-25,
52,
-10,
-26,
-35,
-15,
-8,
-15,
-15,
-38,
-12,
-47,
-66,
-2,
-6,
18,
-20,
-20,
42,
-94,
-8,
0,
-36,
24,
0,
15,
15,
18,
-35,
49,
-8,
22,
-23,
-24,
5,
37,
-37,
28,
12,
-40,
-23,
27,
18,
28,
2,
-46,
42,
-5,
48,
15,
-9,
-22,
-22,
15,
-42,
4,
-6,
16,
-26,
2,
-62,
27,
29,
57,
21,
-23,
12,
-67,
-21,
-26,
25,
-5,
-2,
5,
20,
24,
-39,
24,
32,
-4,
12,
27,
-5,
-21,
12,
38,
18,
31,
58,
45,
-26,
-16,
15,
-17,
-8,
-22,
-13,
-39,
31,
46,
8,
20,
-25,
21,
-15,
28,
8,
-42,
66,
-39,
-20,
12,
-45,
-1,
-2,
-29,
-10,
10,
4,
-14,
-37,
-1,
0,
-61,
-29,
20,
21,
-30,
-9,
-1,
56,
39,
10,
-38,
-37,
-54,
-21,
-11,
-31,
-33,
-11,
73,
-30,
-38,
40,
6,
-9,
-25,
11,
36,
-2,
19,
33,
-14,
79,
15,
-43,
-65,
-12,
-48,
-96,
-15,
4,
-54,
48,
-1,
-74,
-25,
-41,
-7,
23,
-65,
-40,
-54,
20,
-12,
-5,
31,
7,
0,
-19,
0,
29,
-46,
12,
26,
58,
13,
0,
-8,
0,
32,
10,
-4,
7,
-32,
-14,
18,
-5,
38,
35,
69,
-6,
-2,
-21,
25,
-1,
-6,
-42,
29,
-54,
-17,
36,
-4,
17,
38,
-17,
35,
-5,
47,
3,
-53,
-75,
11,
37,
34,
35,
-18,
17,
0,
15,
-18,
2,
4,
-38,
69,
-2,
59,
0,
3,
24,
16,
31,
-44,
-23,
-4,
-52,
36,
-12,
0,
-29,
22,
3,
35,
13,
-18,
5,
-63,
11,
16,
-43,
-24,
-13,
-19,
17,
-75,
2,
33,
-50,
15,
-25,
27,
13,
29,
0,
19,
-27,
-47,
24,
-22,
6,
-5,
45,
-22,
-38,
-22,
14,
2,
22,
17,
-32,
-36,
-33,
9,
-9,
5,
5,
13,
1,
34,
63,
0,
-18,
41,
-8,
-12,
54,
-32,
-14,
-25,
-37,
23,
4,
22,
-26,
32,
-24,
10,
-10,
-17,
-13,
27,
6,
40,
-21,
18,
59,
-15,
-66,
7,
-8,
-11,
-17,
36,
7,
5,
4,
-11,
-51,
52,
-6,
27,
-35,
-6,
45,
-17,
27,
26,
1,
12,
-3,
17,
-14,
52,
-69,
-75,
6,
18,
-36,
-42,
24,
24,
-31,
-77,
-24,
-27,
9,
1,
6,
-49,
4,
-50,
42,
0,
-50,
-11,
14,
8,
-2,
74,
-1,
39,
-33,
9,
-7,
14,
-9,
-49,
20,
30,
26,
-25,
-3,
17,
0,
5,
34,
-32,
-16,
26,
13,
-7,
-41,
59,
19,
-6,
-32,
43,
56,
22,
-4,
25,
0,
-16,
-47,
-22,
-19,
-21,
-23,
-13,
-13,
65,
59,
7,
-28,
22,
16,
50,
5,
9,
-12,
-18,
34,
-32,
-23,
-48,
42,
-35,
-51,
4,
26,
-37,
37,
-23,
17,
-41,
-11,
-21,
4,
-18,
-33,
36,
-16,
26,
0,
33,
-44,
18,
62,
42,
43,
-32,
45,
-1,
30,
-16,
7,
40,
2,
-18,
19,
-28,
37,
53,
-51,
-30,
12,
-21,
2,
12,
23,
27,
27,
-27,
-17,
-17,
-31,
-32,
17,
-48,
-8,
-19,
-7,
21,
6,
5,
13,
52,
-40,
-15,
65,
-9,
10,
-62,
-10,
-6,
-30,
23,
-9,
-18,
-15,
27,
-4,
-39,
25,
35,
-21,
-7,
-22,
-4,
-8,
41,
-42,
2,
-7,
9,
54,
48,
30,
-23,
-33,
-34,
10,
30,
16,
-21,
17,
41,
70,
10,
1,
0,
28,
-7,
-70,
-11,
1,
27,
10,
1,
17,
-28,
39,
-4,
-39,
-31,
25,
19,
-78,
11,
29,
53,
-16,
-23,
-3,
50,
-32,
4,
-4,
3,
4,
11,
-13,
40,
7,
15,
21,
43,
-22,
-10,
-4,
35,
7,
8,
5,
6,
12,
-26,
61,
7,
-8,
19,
23,
21,
-20,
26,
-31,
0,
-51,
0,
11,
-1,
23,
-43,
-9,
19,
13,
-2,
-16,
0,
-10,
-52,
-4,
-26,
-34,
-23,
-44,
-14,
17,
-25,
85,
62,
-36,
-27,
-45,
39,
4,
-38,
63,
21,
-1,
0,
-9,
-4,
18,
-15,
-61,
-14,
13,
-19,
13,
-30,
-19,
-23,
11,
-60,
-58,
-46,
-11,
18,
-14,
-10,
-10,
-11,
11,
22,
76,
-5,
39,
23,
-4,
63,
-35,
23,
-11,
-5,
-17,
-15,
83,
-50,
9,
12,
-29,
-72,
54,
59,
-23,
6,
-17,
-55,
-22,
-38,
25,
51,
-58,
-30,
6,
-45,
18,
-49,
3,
25,
-30,
-90,
25,
13,
11,
15,
36,
41,
54,
-16,
19,
-4,
48,
16,
8,
2,
-22,
-3,
12,
28,
13,
23,
29,
-19,
-36,
-44,
22,
62,
-31,
-11,
-6,
6,
-32,
29,
16,
24,
29,
-15,
-16,
35,
-11,
-27,
36,
32,
51,
-4,
70,
-32,
0,
2,
1,
-17,
23,
7,
6,
19,
-3,
26,
-38,
-13,
-11,
18,
28,
19,
21,
-12,
-20,
0,
-27,
60,
-18,
-43,
2,
-3,
-57,
-29,
19,
-16,
-45,
-16,
-25,
-47,
-5,
7,
11,
-5,
16,
33,
-8,
13,
19,
-3,
-36,
-11,
10,
21,
23,
-32,
-38,
-8,
11,
44,
17,
-11,
2,
-2,
23,
7,
51,
-29,
13,
-33,
-30,
28,
31,
41,
-5
] |
North, J.
In a suit upon a promissory note, defendant bad judgment and plaintiff bas appealed. Tbe case was tried* by tbe circuit judge without a jury.
Prior to November, 1927, Samuel L. Graff and Mrs. Fannie Rose, as copartners, conducted a retail automobile tire and accessory business. At the time indicated the business was incorporated as the Service Tire Company. The corporate name was later changed to the Ben Rose Tire Company, the defendant herein. Its stock consisted of 2,000 shares of the par value of $10 each, held as follows: Samuel L. Graff 950 shares; Annette R. Graff, his wife, 50 shares; Benjamin I. Rose 750 shares; Fannie Rose, his wife, 250 shares. The four continued to constitute the list of stockholders, directors, and officers of the corporation. On May 28, 1929, Mr. Graff entered into a contract with Mr. and Mrs. Rose, in which he agreed to sell to them 1,000 shares of the capital stock of the Service Tire Company for $12,000, $10,000 payable in cash and “a promissory note of said'Service Tire Company payable to the order of party of the first part (Mr. Graff) and indorsed by the parties of the second part in the sum of $2,000.” This note was not paid at maturity. Mr. Graff having died in the meantime, this suit on the note was instituted by the administrator of the estate of deceased, October 19, 1931. In its answer, defendant pleaded lack of consideration, that the note was executed without corporate authority, and was not binding upon the corporation.
In an agreement entered into at the time the note was delivered to Mr. Graff, the following is embodied :
“It is understood and agreed between the parties hereto that the payment of the money aforesaid and the notes aforesaid are. in consideration not only of the transfer of stock as aforesaid, but further in consideration of the release and discharge of a claim of $2,000 or thereabouts which party of the first part has asserted against the said Service Tire Company.”
The agreement was signed by Mr. Graff and Mr. and Mrs. Rose; but it was not executed by Mrs. Graff or by the corporation. However, in fulfillment of the agreement, Mrs. Graff seems to have transferred her stock in the corporation to Mr. and Mrs. Rose. The only evidence offered of any claim on the part of Mr. Graff against the defendant company was the recital in the contract above quoted. The admissibility of the recital in the contract for this purpose is challenged by appellee on the ground that the corporation, as such, was not a party to the agreement. Appellant takes the position that, since the transaction was between and involved all the stockholders of the corporation, corporate fiction should be disregarded. Regardless of the merits of the respective contentions, proof was taken in behalf of defendants which, though of a negative character, tended to indicate that Mr. Graff, in fact, was not asserting any claim against the corporation. On this issue the trial judge decided in favor of the defendant. Review of the record satisfies us that this determination was correct.
In view of the above holding, the remaining question is whether there was any consideration moving to the corporation in consequence of which plaintiff is entitled to recover. The' transaction incident to which the note was given now develops to have been one wherein two stockholders purchased the holdings of the two remaining stockholders in the corporation, and sought to have the corporation give its note in part payment therefor. We are not here concerned with a case wherein the corporation had accumulated profits or a surplus on hand out of which such payment might be made. This record discloses at the time of the transaction in question the capital of this corporation had already been depleted to the extent of $706.82, and its business had recently been operated at a substantial loss. Under such circumstances, it would be a clear violation of tbe law governing corporations to bold, as appellant contends, that tbe corporate entity should be disregarded, and tbe consideration to the extent of $2,000 for tbe purchase by Mr. and Mrs. Bose of stock from plaintiff’s decedent should be paid by tbe corporation out of its capital. Tbe assets of a corporation may not be taken by a stockholder or officer to satisfy bis individual debts. Fowler v. McQuigg, 222 Mich. 178. See, also, Miller v. Griswold Building Co., 217 Mich. 192. To do so would be to impair the capital of tbe corporation to that extent to tbe injury of its present or future creditors. So far as tbe corporation is concerned, tbe result of tbe transaction here involved would more effectively impair its capital than would a purchase of its own stock. In this transaction tbe corporation would receive nothing for this expenditure, but an investment in its own stock would to that extent decrease its outstanding stock liability.
“While a solvent corporation may purchase its own stock, at least from surplus, an insolvent corporation may not do so; such transactions being invalid as against public policy.” Reith v. University Housing Corp. (syllabus), 247 Mich. 104.
In tbe absence of testimony tending to show that tbe financial condition of tbe corporation was any different at tbe time tbe suit was instituted than at tbe time the note was given, it must be presumed that there was no change which would inure to plaintiff’s advantage.
Tbe judgment entered in tbe circuit court is affirmed, with costs to appellee.
McDonald, C. J., and Clark, Potter, Pead, Wiest, and Butzel, JJ., concurred. Sharpe, J., did not sit. | [
13,
33,
76,
4,
-5,
5,
22,
-8,
34,
21,
-10,
40,
23,
61,
-30,
17,
46,
-25,
7,
-55,
-53,
-44,
-23,
26,
-9,
-6,
-29,
1,
29,
58,
8,
0,
-13,
-15,
-39,
41,
-9,
21,
17,
-29,
11,
-2,
64,
15,
3,
-3,
-9,
-51,
-20,
-32,
17,
-11,
12,
-11,
22,
-27,
1,
-1,
-47,
28,
-13,
-89,
36,
-6,
-5,
-12,
-8,
25,
56,
-6,
-37,
-57,
-8,
25,
24,
-65,
10,
20,
-42,
-45,
42,
-60,
22,
35,
2,
9,
-15,
-6,
-7,
44,
-42,
5,
-19,
-1,
-45,
16,
-33,
5,
-16,
20,
15,
-79,
-40,
24,
-9,
45,
-41,
-29,
3,
16,
-43,
24,
28,
-12,
-41,
-48,
-8,
-24,
-16,
-14,
-19,
-7,
3,
9,
37,
15,
-31,
16,
9,
2,
44,
-20,
-40,
71,
-37,
-17,
6,
-60,
-38,
10,
5,
32,
17,
20,
-19,
30,
20,
-14,
-45,
7,
-5,
43,
1,
22,
-14,
19,
-15,
-41,
34,
-23,
5,
-6,
38,
6,
-13,
35,
-15,
-3,
-32,
-6,
-10,
57,
-22,
-60,
-25,
-1,
28,
-29,
-17,
-10,
19,
7,
3,
-1,
13,
6,
-35,
21,
36,
-13,
20,
-13,
-4,
23,
-29,
-37,
-52,
-3,
35,
13,
-30,
-40,
-6,
2,
-40,
-7,
12,
7,
-25,
-6,
18,
66,
-11,
7,
-55,
21,
24,
-60,
0,
-14,
-12,
4,
-42,
-11,
-30,
-63,
15,
-29,
-11,
-13,
-43,
31,
-26,
11,
-5,
19,
30,
-37,
33,
29,
-14,
-5,
-15,
-15,
4,
-4,
-6,
22,
16,
17,
0,
8,
-49,
69,
33,
-36,
-21,
-3,
22,
26,
-3,
61,
-35,
42,
46,
-54,
6,
-1,
-51,
54,
19,
-70,
5,
-10,
19,
-23,
20,
10,
2,
-29,
5,
-34,
-29,
15,
1,
35,
5,
23,
-33,
-3,
51,
64,
50,
-36,
14,
21,
-20,
-7,
-21,
41,
-77,
13,
-37,
-17,
19,
-17,
-38,
-11,
-28,
-20,
2,
-23,
-24,
-43,
53,
10,
-9,
3,
33,
-22,
-20,
15,
-24,
42,
37,
1,
29,
-32,
-1,
-10,
12,
-6,
-1,
-3,
-13,
-11,
76,
31,
-36,
-34,
-27,
67,
15,
5,
2,
-3,
25,
23,
-33,
15,
-51,
-53,
-6,
-11,
-42,
17,
39,
20,
-65,
50,
-1,
10,
14,
-12,
-26,
13,
-5,
7,
3,
61,
2,
37,
-11,
-60,
-27,
-33,
-28,
-3,
-47,
26,
-8,
-44,
49,
22,
11,
22,
-29,
-18,
-26,
5,
-40,
9,
4,
56,
-3,
-22,
19,
2,
-63,
-24,
11,
30,
-45,
5,
-50,
-54,
29,
-33,
-13,
19,
34,
7,
31,
-17,
6,
-4,
17,
-6,
5,
-5,
61,
-8,
-36,
-44,
24,
-42,
38,
-6,
-5,
18,
-41,
33,
-5,
-25,
45,
1,
-4,
20,
27,
23,
42,
50,
-20,
28,
48,
5,
28,
-28,
59,
6,
19,
52,
34,
26,
-4,
23,
23,
26,
-3,
-44,
35,
-15,
29,
18,
-22,
19,
32,
-2,
-20,
27,
-22,
2,
55,
35,
-15,
13,
32,
-30,
0,
33,
-21,
66,
19,
-41,
27,
-44,
-22,
-30,
-36,
7,
-12,
0,
22,
6,
7,
27,
-36,
-22,
-4,
4,
3,
-18,
-8,
18,
-9,
26,
5,
-34,
-15,
2,
0,
-17,
38,
28,
31,
48,
48,
-31,
6,
32,
3,
28,
-75,
52,
-36,
-7,
9,
25,
23,
13,
25,
27,
-37,
-24,
13,
-43,
-16,
21,
5,
-32,
-36,
11,
-27,
26,
-28,
-54,
2,
3,
-35,
-11,
-6,
-28,
22,
18,
17,
48,
38,
12,
28,
13,
-25,
89,
14,
-10,
57,
-22,
-8,
6,
-27,
-14,
-48,
-17,
32,
26,
-16,
-19,
-12,
30,
-4,
-47,
-8,
0,
-7,
-45,
-21,
-8,
26,
-1,
-31,
-14,
-16,
-17,
-13,
-23,
-36,
-44,
45,
2,
12,
45,
-22,
12,
-40,
0,
-35,
-47,
-8,
56,
56,
-52,
3,
-36,
0,
4,
30,
-37,
18,
-34,
59,
-10,
-68,
30,
11,
-9,
18,
-25,
-21,
18,
13,
38,
27,
-90,
34,
13,
-37,
16,
-15,
61,
-51,
-25,
45,
17,
38,
-44,
20,
-62,
7,
-11,
57,
-14,
4,
54,
64,
-26,
-15,
-19,
-1,
16,
-49,
-13,
-8,
2,
-31,
42,
30,
3,
24,
-27,
16,
21,
21,
17,
-3,
-41,
13,
30,
28,
12,
36,
50,
11,
12,
-21,
16,
2,
-38,
29,
17,
10,
0,
-12,
0,
-48,
26,
-26,
12,
25,
4,
-10,
-6,
14,
-10,
-12,
62,
10,
-24,
-54,
41,
-11,
31,
37,
-47,
-34,
-17,
-12,
-7,
10,
41,
-16,
-57,
15,
-17,
-11,
-16,
-38,
24,
50,
11,
-1,
35,
13,
4,
-11,
17,
-5,
23,
29,
-69,
-10,
-38,
27,
-33,
-29,
57,
-77,
52,
-12,
15,
2,
-12,
-4,
5,
5,
17,
2,
-8,
-29,
-36,
-18,
-54,
-35,
27,
22,
0,
-18,
29,
-30,
-31,
-2,
-22,
-12,
22,
-37,
-31,
2,
-22,
19,
-24,
39,
19,
-11,
0,
31,
31,
2,
-28,
-12,
42,
52,
33,
-1,
32,
-25,
-24,
0,
37,
14,
48,
37,
-10,
-22,
-1,
-38,
2,
17,
-29,
-4,
24,
34,
12,
-26,
-42,
-5,
-5,
58,
85,
-44,
39,
-14,
2,
-23,
-20,
6,
4,
-51,
26,
-22,
-11,
-10,
18,
31,
-75,
19,
3,
-33,
11,
34,
18,
18,
-22,
14,
-49,
-27,
9,
17,
-20,
-23,
26,
33,
-49,
20,
0,
-34,
-37,
-51,
-10,
8,
-7,
-21,
-6,
-35,
-17,
-38,
3,
50,
-29,
-48,
-28,
5,
7,
-10,
36,
-17,
6,
-27,
5,
41,
-24,
25,
12,
-26,
15,
-4,
33,
-46,
-23,
25,
21,
-16,
18,
-44,
-5,
-75,
-49,
46,
-38,
51,
-57,
36,
26,
-3,
-15,
22,
-7,
-28,
34,
6,
-2,
-31,
32,
67,
-36,
43,
7,
-58,
59,
11,
35,
14,
-4,
5,
-40,
-35,
-8,
-14,
7,
47,
17,
27,
17,
18,
21,
7,
-31,
-16,
-41,
-29,
-36,
22,
38,
58,
-19,
-11,
14,
-5,
-31,
33,
-28,
14,
-9,
17,
37,
-27,
33,
-38,
-14,
-11,
10,
32,
7,
-9,
-8,
-15,
19,
-8,
-3,
18,
-2,
-46,
-27,
21,
-5,
-5,
-34,
-41,
-4,
25,
-8,
-34,
10,
-20,
-28,
-3,
34,
0,
-9,
44,
28,
-19,
-19,
38,
-29,
11,
20,
9,
-8,
9,
18,
30,
-20,
6,
-46,
-22,
-10,
-4,
-20,
3,
-10,
-39,
32,
-31,
-49,
25,
68,
6,
30,
-52,
-14,
19,
26,
0,
4,
16,
25
] |
Wiest, J.
In September, 1928, plaintiff filed a bill for divorce in the Washtenaw circuit, alleging therein that defendant was worth $100,000, and prayed for a share thereof. Defendant filed an answer, and, by cross-bill, alleged desertion on the part of plaintiff, and asserted that whatever he was worth was, in the main, accumulated after defendant’s desertion. The parties were married in December, 1892, and have one child, a son 35 years of age, a veteran of the World War, suffering from shell shock and now upon a farm provided by defendant. Plaintiff was awarded $40 a week, temporary alimony, and $100 for attorney fees.
In November, 1929, the case came to a hearing in open court, and, during the co'urse of the hearing, the parties agreed upon a property settlement, and the court, upon proofs, dismissed plaintiff’s bill, granted defendant a divorce on the ground of desertion, and awarded plaintiff, as permanent alimony, and in lieu of dower, $100 per month for life, and her attorneys $1,100 for their fees. The award to plaintiff and her attorneys was in accordance with the agreement signed by the parties. The decree required defendant to deposit $20,000 in a bank to insure payment of the $100 per month to plaintiff, and, upon her death, the deposit to go to their son, if living, or to his children in case of his death. No appeal was taken, and plaintiff has received the monthly award.
April 25, 1931, plaintiff filed a petition in the circuit court, in which she alleged that her attorneys were recreant in inducing her to agree to the property settlement and in not procuring for her a share of defendant’s property, and that her brother-in-law, acting in the interest of defendant, induced her to sign the agreement, and she prayed the court to reopen the decree, dismiss defendant’s cross-bill, grant her a decree of divprce and award her permanent alimony. The petition was heard by the judge who granted the decree, and dismissed for want of merit. Plaintiff prosecutes review by appeal, and asserts error in dismissing the petition without taking proofs.
The petition was argued and its merits submitted to the judge and found wanting. If the petition, upon its face, did not call for the taking of proofs, then the dismissal was proper. The petition did not state any ground for modification of the award in the decree. No new facts or change of circumstances, arising after the decree, were alleged. This was fatal upon the question of modification. Sherman v. Kent, 223 Mich. 200; Quinn v. Quinn, 226 Mich. 239; Gould v. Gould, 226 Mich. 340; Schweim v. Schweim, 233 Mich. 67.
Plaintiff’s petition also asked for a rehearing of the original case, or, at least, a review of the equities of the decree. Time had barred a rehearing. Court Rule No. 48. The circuit judge was clearly right in dismissing the petition.
Counsel for plaintiff asks that the petition be “treated as an original bill and have proof taken in court.” We decline to do this.
The averments of fraud do not reach defendant, except as mere conclusions drawn by plaintiff from sketchy hearsay.
The order dismissing the petition is affirmed, with costs to defendant.
Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, C. J., and McDonald, J., did not sit. | [
-47,
32,
-10,
52,
-23,
-17,
12,
11,
14,
-8,
-43,
-23,
24,
-26,
-29,
19,
11,
0,
-30,
-24,
-28,
-6,
1,
9,
56,
68,
35,
-61,
8,
-6,
6,
3,
-44,
-2,
-29,
-82,
24,
-42,
10,
1,
2,
-65,
-12,
16,
-22,
-4,
-18,
-45,
11,
-45,
-19,
-61,
-5,
-26,
-8,
14,
12,
-17,
-29,
-3,
17,
4,
-56,
5,
-16,
14,
32,
50,
11,
-15,
-5,
-29,
-5,
-49,
-2,
-61,
-35,
6,
-48,
-5,
20,
-54,
8,
7,
-23,
10,
-2,
13,
9,
42,
-4,
90,
-43,
-25,
-21,
-6,
54,
43,
0,
18,
-51,
-3,
-29,
17,
16,
47,
1,
10,
-26,
20,
49,
-3,
41,
24,
17,
-20,
-26,
-44,
31,
-1,
35,
17,
4,
14,
29,
-37,
-70,
21,
48,
-31,
6,
13,
-15,
3,
37,
-17,
13,
-79,
-18,
-7,
19,
-23,
-1,
-15,
16,
26,
-33,
-20,
-6,
-59,
-47,
16,
84,
15,
63,
-7,
22,
-15,
11,
-44,
14,
25,
-16,
-35,
-23,
-45,
33,
13,
12,
11,
11,
-4,
-15,
-28,
23,
45,
49,
-2,
-48,
15,
33,
43,
-4,
-11,
18,
-19,
-14,
-9,
-71,
-21,
-19,
-21,
-5,
-37,
6,
16,
36,
-6,
-10,
48,
-10,
-86,
7,
12,
-51,
-1,
24,
12,
-25,
-33,
0,
-8,
-8,
-55,
-54,
3,
3,
-25,
-16,
-27,
0,
12,
16,
19,
-51,
-59,
22,
-3,
11,
21,
-44,
-12,
-10,
-1,
-25,
8,
5,
22,
34,
16,
-23,
-3,
-5,
7,
-19,
-17,
-50,
30,
-4,
24,
-13,
50,
-65,
40,
-31,
14,
27,
3,
-27,
-29,
-37,
25,
5,
37,
-1,
-13,
-12,
-5,
4,
-48,
27,
-28,
12,
-40,
11,
-31,
-52,
1,
-25,
23,
-4,
22,
-13,
19,
10,
32,
-1,
-13,
22,
5,
13,
-34,
-15,
-52,
14,
27,
-31,
-19,
13,
20,
-15,
-52,
8,
-21,
-25,
-45,
-13,
-16,
13,
10,
1,
-16,
45,
7,
49,
19,
-8,
-2,
-31,
-14,
30,
45,
-34,
9,
-29,
17,
-4,
-41,
-26,
15,
-51,
36,
18,
27,
0,
-44,
13,
7,
8,
-33,
67,
0,
13,
23,
-7,
-23,
19,
14,
23,
3,
-45,
-18,
-37,
3,
-62,
-28,
23,
-30,
17,
2,
-5,
24,
19,
0,
21,
16,
12,
-4,
6,
10,
4,
35,
-8,
35,
-14,
11,
-3,
21,
-31,
31,
-32,
28,
8,
93,
-1,
16,
-8,
-16,
-17,
10,
-4,
5,
8,
23,
6,
8,
19,
-29,
-79,
14,
0,
47,
40,
33,
2,
8,
29,
-19,
-53,
24,
26,
-36,
19,
-6,
82,
-16,
-4,
-19,
25,
10,
5,
19,
0,
23,
-36,
8,
38,
-37,
6,
-39,
22,
25,
9,
18,
31,
4,
-15,
27,
-36,
28,
14,
88,
13,
0,
-37,
41,
-53,
-43,
14,
19,
35,
3,
24,
29,
47,
-27,
26,
7,
-12,
-11,
21,
-7,
39,
11,
32,
-55,
-16,
12,
8,
24,
26,
2,
-7,
36,
15,
5,
12,
-21,
14,
-13,
10,
13,
-13,
-30,
14,
25,
-59,
-38,
-17,
-44,
22,
-70,
11,
38,
3,
-51,
-45,
-28,
-15,
-18,
-12,
11,
18,
-36,
22,
-8,
-38,
-49,
8,
20,
-14,
-39,
6,
0,
-28,
10,
25,
-13,
-6,
25,
-26,
7,
19,
3,
13,
-27,
41,
-20,
-60,
18,
-13,
40,
14,
-43,
-2,
21,
-39,
-28,
-30,
-36,
-1,
-29,
50,
-10,
25,
8,
-14,
-22,
1,
19,
-19,
-19,
-17,
31,
-23,
9,
-6,
8,
-19,
-37,
2,
-30,
-6,
-28,
10,
-13,
-12,
-24,
-12,
46,
-22,
13,
30,
-3,
-5,
9,
-35,
-5,
-22,
26,
33,
19,
-6,
-28,
-2,
-28,
-24,
33,
-37,
22,
8,
-1,
13,
-13,
36,
-44,
66,
-9,
22,
10,
9,
-11,
-33,
-17,
-81,
0,
-27,
77,
18,
-41,
36,
39,
20,
23,
18,
47,
49,
-19,
-25,
-7,
27,
44,
30,
-10,
21,
-8,
38,
3,
0,
28,
10,
-6,
14,
-9,
34,
14,
-32,
20,
28,
15,
-14,
23,
-4,
7,
-22,
2,
-18,
-33,
-26,
-29,
9,
30,
7,
1,
-13,
1,
57,
-37,
16,
-1,
22,
-22,
-29,
79,
0,
14,
27,
26,
9,
39,
13,
-23,
49,
-11,
17,
-5,
-25,
34,
20,
21,
16,
-5,
-1,
86,
-13,
-36,
19,
18,
22,
-10,
-10,
10,
-36,
33,
-4,
5,
14,
24,
7,
17,
12,
23,
-14,
-29,
-31,
17,
-7,
-6,
-34,
-12,
-44,
-9,
-17,
22,
-7,
18,
45,
-15,
-25,
-25,
-24,
8,
34,
-42,
49,
38,
28,
-28,
10,
-15,
38,
3,
23,
16,
-44,
21,
-29,
37,
0,
0,
47,
-29,
-6,
45,
-11,
7,
17,
5,
-16,
3,
-7,
-35,
35,
-1,
-27,
10,
-13,
-8,
-1,
6,
-18,
66,
5,
7,
-38,
-7,
-47,
-31,
64,
-2,
-74,
5,
-33,
-31,
-1,
-4,
-32,
-7,
9,
-12,
10,
0,
-24,
-5,
37,
-26,
47,
-19,
22,
12,
-43,
-55,
43,
-19,
8,
19,
-10,
-6,
6,
-55,
26,
42,
-2,
-5,
-7,
55,
-20,
51,
-40,
23,
-5,
1,
-20,
-11,
-6,
9,
-10,
-2,
-8,
5,
13,
16,
22,
-21,
13,
-28,
-10,
4,
-66,
-22,
-22,
-21,
-1,
-12,
17,
8,
67,
-19,
-23,
0,
29,
-39,
-29,
-2,
22,
-11,
45,
1,
48,
16,
10,
-66,
23,
12,
-56,
-20,
-27,
0,
-11,
-29,
-24,
-24,
-8,
-67,
-4,
-19,
4,
1,
32,
-22,
-16,
-18,
-34,
21,
6,
16,
54,
-2,
0,
22,
-17,
10,
0,
30,
-22,
52,
35,
29,
-50,
33,
-15,
-8,
13,
-14,
6,
-11,
-22,
-74,
-13,
-6,
28,
27,
-11,
2,
-7,
-23,
-3,
72,
24,
9,
0,
-34,
-27,
-7,
-24,
-12,
2,
15,
-43,
-4,
1,
-19,
-23,
-6,
-22,
1,
3,
17,
-42,
58,
9,
-28,
-22,
-17,
-9,
-9,
-29,
19,
62,
-15,
-11,
-23,
-12,
-17,
10,
7,
24,
0,
-29,
46,
-25,
19,
-1,
41,
-9,
35,
17,
27,
-20,
27,
9,
20,
-11,
-7,
21,
-30,
17,
69,
12,
22,
-5,
-5,
-57,
-32,
-15,
-19,
34,
37,
8,
-29,
3,
-4,
14,
21,
-27,
3,
22,
-30,
-54,
-3,
21,
34,
5,
18,
15,
-20,
59,
-21,
-50,
-19,
-39,
-14,
28,
35,
11,
-4,
3,
28,
-51,
11,
-20,
4,
25,
24,
-26,
62,
-70,
-57,
-31,
-13,
22,
42,
46,
60
] |
North, J.
Plaintiff by intervening assignments became, on October 16, 1926, the holder of the vendee’s interest in a land contract covering lot 105 of the Southfield Villas subdivision in the township of Southfield, Oakland county. He failed to meet the accruing monthly payments, and on September 3, 1929, defendant, who through mesne assignments and conveyances had become the holder of the vendor’s interest in this lot, served notice of forfeiture. Thereupon plaintiff filed this bill of complaint and prayed that defendant specifically perform the contract vendor’s agreement to lay sidewalks and gravel the streets in this subdivision; and also that defendant be restrained “from proceeding to foreclosure” pending this suit. From a decree dismissing his bill of complaint, plaintiff has appealed. The original contract provided:
‘ ‘ The sellers hereby agree to put in sidewalks and gravel the streets, at its own expense. * * *
“The covenants, conditions and agreements herein contained shall be for the benefit of and binding upon the several parties hereto and their respective heirs, legal representatives, successors and assigns as hereinbefore provided.”
The assignment of the vendor’s interest under which defendant holds contains the following:
“Said assignee covenants to perform the obligations of the seller in said contract, the lands therein described having been this day conveyed to the assignee by deed of even date.”
The streets of the subdivision were not graveled and the walks were not laid. It is appellant’s contention that defendant should not be permitted to forfeit the contract while there is default on the part of the vendor in performing that portion of the con tract requiring the vendor “to put in sidewalks and gravel the streets.”
The remedy of specific performance is a matter of grace rather-than of right. Mowat v. Walsh, 236 Mich. 391. Whether or not specific performance will be granted is determined by the peculiar circumstances of each case. Farrell v. Hannan Real Estate Exchange, 251 Mich. 669. It may not be arbitrarily refused (Gregor v. Olde, 218 Mich. 187); but it will not be decreed where so doing would be unjust or inequitable. Brear v. Baumgartner, 249 Mich. 633.
In the instant case is plaintiff equitably entitled to specific performance? The original vendor is not a party to this suit. Defendant’s only interest in this subdivision is that of vendor of the one lot here in suit. There is a total of 337 lots in the whole subdivision, and the total length of streets exceeds one and a half miles. It requires no argument to demonstrate how preposterously inequitable it would be to require defendant because of her interest in a single lot to gravel the streets and lay the sidewalks in this whole subdivision as a condition precedent to exercising her right of forfeiture in the event of plaintiff’s failure to pay the small amount due and unpaid on his contract.
As a condition of decreeing dissolution of the injunction, the circuit court required defendant to lay the sidewalk and gravel the street in front of plaintiff’s lot. While this by no means is full compliance with the undertaking of the original vendor, we think it is all that could be equitably required of defendant.
The decree entered in the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
-12,
39,
-54,
-35,
-39,
0,
59,
39,
6,
70,
34,
2,
28,
42,
5,
11,
-39,
-41,
-21,
8,
-38,
-48,
-14,
-2,
-1,
14,
18,
-51,
8,
10,
6,
-23,
-26,
52,
-20,
38,
12,
-44,
26,
-1,
38,
-42,
2,
-10,
19,
-24,
-12,
-44,
16,
-14,
33,
28,
25,
-25,
-51,
-5,
-31,
-2,
-10,
8,
-13,
1,
-19,
-8,
1,
-23,
10,
25,
48,
-21,
-45,
41,
3,
-8,
49,
19,
-58,
-26,
-2,
-6,
12,
-23,
8,
16,
-24,
31,
-38,
-26,
-3,
27,
-39,
-12,
30,
19,
-10,
32,
19,
13,
13,
-25,
11,
6,
-28,
-19,
-19,
-34,
-39,
-33,
0,
25,
34,
-12,
41,
-46,
-7,
-11,
-2,
20,
53,
-13,
18,
-21,
-16,
-24,
-14,
0,
-2,
-16,
-26,
-15,
30,
-1,
-21,
58,
-23,
35,
-16,
29,
23,
30,
47,
-3,
5,
-18,
-6,
-4,
-36,
-9,
-34,
-22,
-36,
-9,
27,
35,
30,
-33,
47,
-24,
54,
-33,
39,
-55,
-2,
-7,
-40,
-21,
-9,
37,
-2,
19,
37,
4,
19,
-114,
-25,
-57,
48,
20,
13,
4,
29,
28,
27,
-48,
9,
-20,
-40,
-40,
16,
-16,
20,
3,
-7,
17,
3,
19,
-49,
16,
4,
-12,
-15,
-42,
-5,
-15,
-23,
-28,
-2,
-34,
-20,
49,
-22,
-30,
-39,
-36,
-8,
16,
86,
13,
3,
-1,
33,
13,
8,
-1,
-27,
-42,
2,
-27,
-3,
-4,
32,
-62,
-4,
0,
-25,
4,
4,
3,
-19,
22,
41,
12,
-11,
-5,
-36,
22,
-13,
9,
29,
-15,
0,
-3,
-50,
-4,
-5,
-21,
-17,
15,
-34,
1,
0,
36,
-40,
11,
-24,
-11,
21,
9,
-61,
56,
-49,
29,
3,
15,
-74,
-49,
-9,
-24,
-6,
65,
19,
-51,
42,
8,
-8,
36,
-9,
68,
-36,
-17,
10,
-6,
-23,
-15,
-18,
49,
-5,
-27,
-3,
14,
-35,
-12,
25,
59,
15,
-32,
7,
-20,
32,
32,
41,
-16,
-1,
-40,
-55,
28,
-11,
0,
16,
-31,
38,
-21,
0,
32,
-3,
-14,
31,
8,
-16,
10,
47,
-34,
1,
-8,
-9,
19,
22,
-26,
-67,
-21,
26,
42,
21,
-3,
41,
28,
5,
-9,
-31,
1,
-48,
-19,
-56,
3,
5,
29,
20,
-18,
-13,
40,
39,
19,
3,
-77,
7,
-7,
-22,
16,
20,
54,
28,
29,
-23,
13,
-28,
-26,
-45,
-1,
-29,
42,
8,
4,
27,
54,
34,
-13,
-64,
-16,
15,
-2,
-30,
-11,
-5,
19,
4,
19,
-8,
9,
-52,
-15,
48,
57,
-17,
28,
-29,
-12,
21,
-27,
-4,
39,
-46,
10,
18,
-25,
7,
14,
13,
9,
18,
9,
61,
49,
37,
9,
48,
-28,
27,
-1,
8,
45,
-28,
24,
27,
-23,
41,
-6,
-55,
-47,
-34,
14,
-23,
17,
-19,
-19,
-2,
25,
-75,
-29,
20,
-22,
61,
50,
-27,
33,
-1,
3,
41,
-20,
43,
-51,
5,
-52,
-20,
6,
-8,
-33,
-21,
33,
-25,
40,
-22,
11,
42,
-1,
-34,
8,
-10,
-16,
-4,
32,
-35,
5,
-5,
26,
3,
-52,
-14,
-11,
-39,
20,
26,
-24,
3,
21,
54,
-44,
0,
23,
41,
78,
61,
18,
-10,
44,
-16,
18,
-1,
-37,
-8,
10,
-21,
-17,
40,
52,
-2,
22,
46,
-41,
20,
-3,
26,
35,
-42,
-33,
5,
21,
39,
1,
-25,
18,
14,
-14,
9,
-23,
18,
-25,
-9,
25,
0,
-23,
1,
64,
-5,
-1,
-23,
46,
18,
25,
9,
-3,
2,
-48,
38,
-26,
-11,
11,
58,
-23,
-1,
28,
-30,
21,
25,
-22,
66,
30,
49,
-53,
-9,
47,
-74,
-38,
28,
-33,
-54,
14,
-7,
-33,
-18,
-4,
-9,
-14,
34,
-55,
35,
46,
47,
-2,
13,
35,
12,
16,
-12,
-47,
-18,
-16,
-8,
40,
46,
0,
31,
6,
-39,
1,
-24,
-53,
-64,
-16,
31,
-38,
-6,
14,
-7,
37,
-5,
62,
18,
-25,
20,
24,
3,
18,
43,
29,
2,
39,
7,
27,
-63,
12,
-4,
-38,
44,
-25,
20,
-7,
14,
-23,
-42,
-13,
-31,
-13,
-48,
21,
-21,
3,
-52,
2,
30,
-2,
-25,
66,
10,
-24,
24,
-22,
-12,
-8,
-17,
0,
38,
-35,
-38,
27,
25,
15,
44,
-19,
15,
29,
26,
17,
-12,
-1,
-5,
-3,
-9,
30,
58,
28,
-2,
7,
-8,
50,
13,
-53,
3,
-10,
21,
-25,
0,
18,
-14,
-9,
-5,
-38,
9,
17,
17,
-15,
8,
30,
34,
-3,
-2,
33,
-1,
-6,
-34,
-4,
-38,
-11,
24,
37,
-1,
94,
31,
17,
-23,
35,
-4,
-23,
-3,
-25,
52,
-59,
15,
-18,
7,
12,
-2,
16,
28,
-27,
7,
-8,
48,
2,
-23,
-38,
3,
-34,
-62,
0,
-13,
-17,
41,
2,
-27,
-3,
-6,
1,
-4,
47,
12,
-22,
-6,
-23,
-51,
21,
-5,
12,
-10,
30,
23,
-66,
-8,
-7,
16,
-18,
-26,
12,
-62,
-26,
20,
-41,
-2,
8,
3,
-27,
-3,
-18,
12,
-56,
-32,
-4,
5,
-14,
33,
53,
-9,
0,
-41,
3,
-58,
-33,
31,
8,
34,
-28,
-22,
3,
-12,
35,
10,
17,
-67,
28,
24,
16,
0,
13,
-13,
-18,
14,
53,
-33,
57,
18,
-13,
-15,
17,
-41,
-16,
-33,
-10,
25,
-22,
14,
10,
68,
-27,
-18,
65,
-25,
-27,
11,
-15,
2,
-17,
7,
-38,
-26,
5,
30,
-27,
-18,
4,
21,
-33,
-58,
15,
-12,
-7,
-41,
9,
-39,
-1,
9,
9,
20,
-20,
-32,
-10,
21,
2,
-13,
-24,
13,
42,
8,
33,
-11,
21,
76,
1,
-30,
-58,
-7,
-21,
-5,
41,
23,
30,
-64,
-6,
-1,
11,
8,
56,
0,
20,
-39,
1,
-38,
-40,
-41,
-23,
-21,
-11,
29,
-8,
-6,
-58,
-66,
25,
-30,
38,
8,
3,
-12,
-44,
-24,
17,
-57,
-7,
-59,
10,
3,
29,
7,
-7,
-59,
-13,
-20,
-21,
-7,
13,
-2,
37,
-38,
5,
-7,
11,
58,
-26,
42,
-40,
-31,
-51,
8,
12,
-1,
-34,
-17,
-15,
13,
-1,
12,
12,
-43,
43,
-16,
24,
0,
-13,
-15,
13,
1,
-32,
9,
33,
31,
-13,
7,
-3,
30,
5,
7,
5,
7,
-34,
-31,
-2,
-29,
-6,
3,
37,
-14,
-10,
-13,
-21,
-20,
8,
0,
8,
57,
-14,
-39,
-42,
19,
12,
26,
0,
-2,
27,
-5,
-4,
-7,
-30,
6,
-4,
1,
-30,
5,
35,
61,
10,
4,
-17,
-25,
35,
28,
61,
-18,
16,
-25,
10,
-14,
-15,
14,
-18,
-15,
46
] |
North, J.
Nathan Amster and his wife, the former herein called plaintiff, filed this bill to foreclose a land contract between himself as vendor and defendants as vendees; also to foreclose a chattel mortgage which defendants gave plaintiff to secure certain instalments which accrued under the land contract but were not paid. Defendants by cross-bill sought-cancellation on the ground they had been defrauded by plaintiff incident to the purchase. A decree was entered for plaintiff, and defendants have appealed.
In the latter part of Angnst, 1927, the defendants purchased from plaintiff on a contract 120’ acres of land in the township of Antwerp, Van Burén county. The contract price was $6,500. The particular fraud alleged in defendants ’ cross-hill, and in consequence of which rescission is sought, is that during the period of negotiations between the parties plaintiff stated to defendants that he was selling the property to them for the same price he was paying for it. This was not true; but instead, practically at the same time plaintiff contracted to sell.to the defendants for $6,500 he purchased this property from another for $4,600. In circuit court plaintiff consented that the contract price should be reduced $1,900. Defendants were allowed this reduction and also a further credit of $500 for services rendered by them in harvesting the 1927 grape crop and for other services in making improvements upon the premises. The amount for which the decree granted foreclosure was arrived at on this basis, and defendants given a reasonable time within which to redeem.
It is appellants’ contention that they were entitled to a decree canceling the land contract and granting them an accounting by which they claim a substantial sum would have been found due to them from plaintiff. On the other hand, the appellee insists that even though the alleged misrepresentation was made, the defendants were not deceived or damaged thereby; and that in fact it had nothing to do with the consummation of the contract between the parties.
There is no question that plaintiff made the alleged misrepresentation. He admitted it in his testimony, and while the proof is not very convincing, we think it probable that the testimony sustains defendants’ contention that they were influenced by this misrepresentation in purchasing the farm at the agreed price of $6,500. But for reasons hereinafter indicated, we think the disposition made of this controversy by the circuit judge afforded defendants all the equitable relief to which they were entitled. As against the amount which otherwise would have been unpaid on the contract price, the circuit judge credited not only the $1,900 which plaintiff added to the purchase price, but also an additional sum of $500. This disposition of the case was justified by reason of the fact that during the years in which» these parties were transacting business with each other they so complicated their affairs that anything like an .accurate and just accounting as between them is practically impossible of obtainment. Defendants’ demands on their face are inequitable. At the time of the decree defendants had occupied this 120-acre farm nearly four years. During that period they met only a small portion of their contract obligation ; and they would not only have the payments so made returned to them, but they seek an additional payment of several hundred dollars for work done upon the farm. They propose to allow nothing for the use and occupation of this 120 acres during all of that period. Clearly the circuit judge was correct in refusing to decree cancellation and an accounting on this basis. Equitable relief by way of cancellation is not strictly a matter of right, hut rather a remedy the granting of which rests in the sound discretion of the court. And clearly rescission should not he granted in cases where the result thus obtained would be unjust or inequitable. Windisch v. Mortgage Security Corp., 254 Mich. 492.
“An application to a court of equity for the rescission, cancellation, or delivering up of agreements and securities is not founded on an absolute right, * * * but is rather an appeal to the sound discretion of the court, which in granting or refusing the relief prayed acts on its own notions of what is reasonable and just under all the surrounding circumstances.” 9 C. J. p. 1161, citing a large number of cases.
“As in the case of specific performance, relief by way of cancellation lies within the sound discretion of the court, to be exercised according to what is reasonable and proper under the circumstances of each particular case.” 4 R. C. L. p. 487.
“It is an established doctrine that a court of equity will not rescind a contract on the ground of fraud, when the party asking the relief is not able to put those against whom it is sought into the same situation in which they stood when the contract was entered into.” Merrill v. Wilson (syllabus), 66 Mich. 232.
See, also, Vernon v. Antona, 222 Mich. 83; Papciak v. Morawski, 243 Mich. 157.
In the instant case these defendants, if granted rescission and accounting, will by no means place plaintiff in statu quo. In the meantime defendants have erected a barn upon the premises and here seek to charge plaintiff with their labor in so doing. Defendants also claim they have very materially improved the grape vineyard on the premises, that they have constructed fences, have dug a drain and have rendered extensive services in harvesting grapes produced on the premises. These are some of the things which not only render anything like an accurate accounting between-these parties a practical impossibility, but also produce a situation where upon cancellation defendants cannot restore these premises to plaintiff in the same condition in which they were received.
By minimizing the contract price as above noted, the circuit judge fully relieved defendants -of any damage they sustained by reason of the alleged misrepresentation. There is much other detail in the record which we need not here review; but after giving all of it our careful consideration we are of the opinion that the justness of the decree entered in the circuit court is sustained by this record and in its result is equitable as between the parties. If, as suggested by appellees on the oral argument, there is an error in computation of interest it may be corrected on settling the decree. Subject to such correction, appellants'will be given 30 days after the fillug of this'opinion within which to redeem from the amount.found due by the circuit judge; and, in default of redemption within the time specified, foreclosure of the land contract and the chattel mortgage given incident thereto may be had in accordance with the terms of the decree entered in the circuit court.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
34,
26,
-7,
-4,
2,
-17,
48,
39,
-9,
63,
45,
-60,
-4,
70,
2,
-15,
11,
-57,
11,
-18,
-32,
-44,
-7,
12,
-4,
-37,
22,
-87,
-36,
63,
2,
-2,
-47,
-1,
-7,
-18,
-36,
-16,
21,
-5,
-15,
-17,
26,
-14,
4,
1,
-23,
-31,
17,
45,
33,
-20,
6,
-36,
-10,
-13,
-38,
-24,
1,
-32,
12,
-41,
5,
-32,
-6,
25,
-28,
13,
31,
-20,
14,
-21,
-7,
-32,
39,
-57,
-10,
-17,
-18,
-37,
19,
-42,
33,
2,
21,
-2,
-6,
-43,
-9,
45,
-41,
36,
-5,
7,
12,
7,
27,
38,
22,
2,
-4,
-13,
-62,
30,
42,
14,
-64,
-28,
-8,
20,
2,
-31,
54,
-18,
-50,
-27,
-37,
-17,
16,
-29,
-3,
-16,
-18,
-15,
-4,
45,
-50,
-26,
-56,
4,
50,
-56,
-28,
35,
-17,
-9,
-27,
-10,
-67,
-27,
12,
-17,
1,
-13,
17,
25,
7,
-40,
-9,
-22,
-35,
-3,
3,
44,
28,
-27,
-7,
-51,
-10,
-46,
56,
-12,
-44,
-34,
-38,
23,
-10,
-1,
6,
-17,
12,
11,
-2,
-14,
27,
-31,
40,
5,
-17,
0,
32,
38,
-34,
8,
16,
-59,
16,
-17,
1,
22,
15,
3,
1,
-17,
-15,
28,
-22,
24,
33,
9,
-47,
-26,
16,
14,
-15,
-35,
73,
-58,
-21,
29,
-18,
-33,
-9,
-51,
-46,
1,
11,
-18,
8,
-9,
10,
3,
-30,
34,
-28,
-24,
25,
-8,
47,
-8,
-31,
-45,
-17,
-7,
-18,
-31,
52,
-2,
-2,
53,
-33,
12,
-6,
-25,
-10,
16,
-8,
-26,
-14,
34,
-47,
-16,
-48,
49,
-14,
12,
-22,
-3,
-27,
6,
20,
-9,
-37,
15,
-8,
-13,
11,
19,
21,
43,
0,
-26,
12,
42,
-15,
-25,
-45,
3,
16,
22,
44,
1,
-11,
41,
7,
35,
10,
47,
0,
-11,
49,
-62,
-26,
-41,
15,
6,
-30,
-10,
45,
-1,
-41,
-24,
9,
-16,
3,
-31,
-4,
28,
15,
-10,
5,
8,
3,
1,
9,
-13,
10,
-6,
-4,
-16,
47,
-23,
3,
35,
0,
9,
48,
-25,
5,
37,
-28,
8,
5,
-5,
13,
-30,
-14,
4,
-65,
-47,
9,
39,
-11,
11,
10,
35,
-37,
26,
-28,
-6,
-22,
-13,
-39,
53,
10,
-38,
13,
8,
-27,
34,
44,
38,
-28,
0,
43,
41,
-15,
-58,
-13,
50,
-35,
59,
-16,
-18,
-18,
-21,
-61,
3,
-48,
15,
-9,
-14,
-5,
48,
87,
-10,
-35,
-45,
2,
13,
-45,
-41,
-17,
19,
5,
0,
-8,
-39,
-40,
-42,
14,
2,
-22,
-16,
-63,
36,
-15,
-4,
1,
-24,
30,
-23,
39,
-4,
-3,
7,
17,
26,
27,
5,
49,
30,
37,
5,
64,
-40,
49,
-33,
-4,
59,
-12,
31,
1,
-1,
48,
5,
-36,
-22,
-39,
48,
-25,
29,
0,
-9,
23,
-5,
-59,
-10,
52,
-3,
29,
27,
19,
9,
-2,
28,
38,
-45,
-16,
-59,
32,
-7,
4,
-69,
2,
-10,
8,
1,
-9,
-3,
16,
18,
44,
5,
-19,
35,
17,
-6,
-48,
71,
-9,
6,
22,
-18,
-15,
-17,
-27,
9,
11,
15,
18,
-2,
22,
54,
-10,
-30,
1,
16,
7,
26,
-22,
6,
50,
-12,
60,
3,
-36,
-3,
31,
50,
-37,
-4,
17,
15,
-25,
12,
3,
-13,
31,
38,
36,
-35,
-28,
-35,
-32,
15,
23,
21,
32,
17,
-35,
-9,
-5,
-60,
-47,
6,
-14,
45,
42,
-15,
-64,
52,
15,
26,
-25,
50,
9,
7,
-14,
-24,
16,
-37,
57,
21,
-30,
17,
1,
-40,
-9,
-14,
14,
4,
9,
-27,
59,
-16,
28,
-52,
-15,
33,
-21,
-23,
42,
2,
-32,
-31,
-41,
-26,
11,
40,
-29,
-24,
7,
-27,
21,
42,
56,
4,
5,
0,
-8,
0,
17,
-38,
-20,
-34,
2,
7,
26,
75,
1,
38,
-66,
-16,
10,
-36,
-33,
25,
-18,
32,
11,
0,
-14,
42,
58,
10,
1,
-53,
3,
27,
30,
-26,
-3,
-9,
-2,
-4,
10,
-5,
-25,
49,
-2,
-15,
36,
0,
-42,
-2,
-17,
43,
-34,
-20,
-9,
-4,
-39,
-4,
-61,
11,
-14,
3,
21,
-10,
-17,
39,
26,
34,
8,
-21,
41,
-9,
-8,
-11,
63,
-18,
-45,
17,
23,
-37,
53,
5,
-5,
-8,
15,
-45,
3,
6,
42,
-17,
-10,
35,
17,
23,
0,
23,
29,
20,
-10,
26,
19,
19,
-19,
22,
-1,
-1,
-54,
3,
10,
13,
-12,
-4,
6,
0,
26,
6,
-5,
-20,
-11,
22,
-1,
-6,
13,
39,
4,
-10,
-8,
18,
-1,
-7,
33,
16,
-10,
-34,
7,
-29,
14,
-44,
-9,
-67,
46,
-23,
-13,
18,
4,
19,
24,
-25,
-18,
65,
21,
-4,
-42,
-25,
-56,
-11,
-34,
-1,
21,
-14,
2,
59,
21,
-13,
33,
7,
0,
37,
19,
-8,
-57,
-24,
-18,
-25,
23,
62,
-69,
-12,
24,
-19,
20,
-59,
22,
17,
-60,
-3,
-73,
-20,
28,
-7,
-1,
11,
55,
-10,
-8,
-8,
1,
-31,
-4,
-53,
48,
-5,
37,
20,
16,
-10,
-18,
-26,
-44,
36,
1,
-18,
40,
-12,
28,
1,
-48,
43,
0,
0,
-55,
21,
20,
-29,
12,
-2,
21,
-33,
-16,
26,
-1,
-4,
-5,
-9,
8,
51,
0,
0,
-51,
27,
-21,
-7,
-32,
23,
33,
-46,
20,
38,
46,
-4,
6,
-17,
-43,
-12,
-30,
-24,
-1,
1,
16,
7,
6,
-11,
-59,
-10,
-11,
-27,
25,
30,
-21,
-18,
-15,
21,
-42,
18,
22,
5,
-22,
-47,
40,
-10,
0,
10,
1,
0,
12,
-3,
-13,
58,
30,
0,
11,
-36,
37,
-16,
-11,
6,
-49,
48,
-44,
20,
48,
27,
-37,
22,
-28,
18,
-27,
15,
16,
-23,
-31,
-51,
26,
21,
11,
-13,
-4,
-36,
6,
-7,
-24,
37,
0,
28,
45,
-8,
-6,
-22,
-32,
45,
19,
1,
3,
9,
-15,
16,
-3,
3,
6,
8,
18,
12,
28,
16,
-12,
15,
33,
22,
11,
-34,
-7,
-8,
25,
7,
33,
-8,
-7,
9,
-23,
-12,
20,
-30,
-40,
37,
-20,
7,
22,
8,
3,
-24,
-37,
-1,
-30,
-25,
-23,
-20,
14,
-43,
33,
7,
18,
59,
-15,
15,
6,
-26,
-29,
-21,
6,
-21,
44,
29,
-10,
30,
15,
-28,
-1,
47,
-4,
23,
-1,
42,
-15,
15,
44,
37,
73,
40,
9,
-16,
-13,
7,
-12,
-14,
-29,
-10,
11,
-12,
35,
-47,
13,
23,
15,
-15,
-40,
-26,
58,
29,
-22,
19,
-8,
0,
1,
-22,
10,
45,
-15,
75
] |
Wiest, J.
This is an appeal from an adjudication that Rugby boulevard, now renamed Forrer avenue, in the city of Detroit, is in fact and law a boulevard from Grand River avenue to Fenkell avenue, and property abutting thereon is not subject to special assessment' for paving. Rugby subdivision was platted in the township of Redford, Wayne county, in October, 1913, and the proprietors thereof, in accordance with the mandatory language of the statute (3 Comp. Laws 1929, § 13209), dedicated to the use of the public “the streets and alleys shown on said plat.” Rugby boulevard extended the length of the plat, or four blocks, and was laid out 100 feet in width, and, by subsequent extension, serves as an important thoroughfare. The plat was approved by the township board and the auditor general and duly recorded. In 1923 the subdivision was annexed to the city of Detroit, and in 1926, Rugby boulevard was renamed Forrer avenue by the city council, and, in 1927, upon petition therefor, the city graded and paved it the width of 40 feet in the center. Previous to paving there were cindered drives on each side of a center grass plot suitable for' trees, - shrubbery, and ornamentation, and now there are'grass plots, from lot lines to the curb of the pavement on each side, 30 feet wide.
The circuit judge viewed the street and surroundings, and determined that it had the characteristics of a true boulevard, and was such in fact and law.
It is to be observed from our decisions that each case, ■ in which this question has been presented, stands upon particular facts.
In Oprisiu v. City of Detroit, 248 Mich. 590, Mr. Justice Sharpe, speaking for the court, there summarized our holdings in Miller v. City of Detroit, 244 Mich. 38; Doherty v. City of Detroit, 244 Mich. 660; and Coburn v. City of Wyandotte, 245 Mich. 314, as follows:
“The paving of a boulevard is not a local improvement ; a city may not, after annexation, change the designation of boulevards to streets, and thus render lot owners liable to special assessments for paving; determination as to whether a certain highway is a street or boulevard does not depend solely upon the name given to it on the plat, but is dependent upon its physical aspects, its width, its length, provision for giving it a parklike appearance by reserving spaces at the sides or center for shade trees, etc.”
The fact that lot owners petitioned for the pavement does not preclude resisting liability for special assessment. Miller v. City of Detroit, supra.
It is evident that purchasers of lots were induced to select location by the width and parklike character of the boulevard.
The decree is affirmed, with costs to plaintiffs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
-11,
44,
37,
-48,
-36,
25,
53,
-20,
-28,
6,
-15,
-3,
35,
31,
-21,
41,
-28,
12,
-46,
37,
-40,
1,
1,
-61,
18,
40,
71,
-25,
5,
51,
15,
-66,
-25,
93,
-37,
21,
30,
-32,
65,
18,
42,
-33,
-60,
-15,
22,
6,
60,
-56,
15,
-10,
-27,
47,
0,
2,
-61,
-25,
-30,
9,
-51,
-25,
-34,
31,
-44,
43,
21,
-21,
22,
15,
49,
-49,
-45,
-38,
-21,
-21,
34,
13,
28,
33,
-56,
-12,
-17,
-28,
45,
13,
-22,
25,
-4,
-38,
0,
-9,
24,
-42,
35,
-31,
-32,
15,
30,
-40,
-41,
-56,
21,
51,
39,
6,
-14,
-8,
-15,
-22,
36,
15,
21,
12,
37,
14,
18,
-16,
18,
15,
52,
-2,
-24,
8,
11,
33,
-50,
9,
-66,
-27,
-63,
-34,
20,
-16,
12,
10,
9,
40,
-51,
18,
-41,
83,
30,
34,
-2,
-20,
-27,
22,
-16,
-23,
-14,
-70,
34,
-30,
1,
-8,
-11,
10,
1,
-9,
49,
12,
-4,
-53,
54,
11,
-52,
55,
-58,
47,
-2,
74,
50,
-14,
65,
-52,
-4,
-5,
10,
45,
-22,
-1,
19,
7,
28,
-22,
-6,
-17,
-41,
-20,
-8,
-34,
34,
-28,
4,
-33,
-5,
21,
3,
20,
-24,
-47,
-15,
-21,
-38,
-10,
-21,
22,
-32,
51,
11,
43,
-16,
-24,
-12,
-2,
86,
-19,
72,
-32,
30,
20,
14,
23,
46,
-59,
-28,
-5,
-62,
-17,
41,
16,
-4,
-20,
0,
-8,
-30,
36,
-14,
24,
-44,
-1,
26,
51,
-29,
2,
-43,
54,
-19,
0,
44,
13,
47,
-21,
11,
-74,
-26,
-13,
-7,
-3,
30,
40,
21,
88,
17,
1,
52,
40,
-1,
13,
-53,
5,
-69,
22,
-45,
2,
-71,
-56,
25,
-24,
1,
42,
-19,
-31,
-8,
42,
15,
50,
-29,
0,
-49,
15,
-2,
5,
-31,
-12,
-19,
-4,
-11,
-12,
18,
4,
12,
40,
-20,
9,
0,
-46,
-28,
18,
72,
26,
-5,
-21,
11,
-14,
17,
39,
42,
35,
32,
-36,
13,
47,
22,
34,
-4,
8,
7,
-28,
-32,
-14,
9,
15,
28,
52,
14,
9,
93,
5,
-35,
-39,
-23,
5,
11,
21,
34,
15,
-52,
28,
5,
12,
-15,
21,
-13,
-6,
-48,
-35,
53,
39,
-33,
27,
56,
39,
43,
-5,
-52,
-18,
-74,
24,
11,
12,
-2,
-8,
-4,
68,
59,
-23,
71,
-17,
-13,
18,
-11,
-19,
13,
-12,
37,
-32,
-34,
-15,
3,
-31,
-43,
19,
-10,
38,
-37,
-24,
32,
54,
-5,
16,
7,
55,
-13,
33,
-13,
7,
30,
-3,
30,
-4,
-27,
-12,
71,
-9,
2,
14,
-28,
-31,
-27,
27,
-1,
32,
1,
-15,
14,
-27,
41,
39,
-38,
-18,
-19,
5,
2,
-48,
9,
20,
-34,
-28,
-8,
-30,
-71,
20,
-7,
23,
-58,
18,
-44,
22,
-9,
-32,
73,
35,
-9,
24,
-48,
-35,
-17,
30,
52,
-8,
29,
-25,
-19,
-43,
-30,
4,
-18,
-3,
-3,
25,
-12,
46,
-10,
-49,
-2,
-31,
5,
-25,
-46,
-34,
-27,
-21,
0,
9,
-34,
0,
-16,
-1,
-25,
36,
3,
10,
-7,
13,
23,
-44,
5,
27,
-17,
-12,
21,
-2,
-40,
3,
8,
0,
2,
11,
19,
28,
1,
8,
-5,
45,
9,
71,
-35,
-15,
37,
-42,
-42,
-51,
-17,
-31,
51,
29,
13,
9,
21,
1,
15,
0,
39,
-38,
-29,
-29,
-40,
2,
-14,
-25,
-7,
-2,
31,
-29,
-41,
52,
20,
-28,
15,
-22,
-17,
2,
-26,
-41,
-22,
-39,
-21,
-70,
-13,
42,
-28,
11,
45,
4,
7,
7,
32,
-11,
-27,
-2,
-47,
47,
25,
-47,
-53,
16,
10,
-33,
-14,
-11,
-25,
-5,
-37,
-23,
38,
59,
12,
-44,
-11,
21,
-21,
-2,
-2,
0,
-7,
20,
17,
73,
52,
-27,
59,
-14,
-20,
-26,
-45,
-18,
-20,
-26,
14,
-14,
13,
5,
-48,
71,
-9,
89,
-14,
31,
69,
0,
7,
17,
3,
-10,
-37,
-21,
21,
46,
-44,
40,
-27,
10,
-17,
14,
53,
-58,
54,
6,
5,
-15,
-20,
-11,
-12,
0,
7,
41,
-53,
69,
-17,
4,
-61,
54,
-6,
-83,
-10,
-26,
20,
3,
-14,
9,
0,
-13,
22,
-10,
-50,
-12,
-36,
-46,
45,
-26,
10,
36,
-13,
7,
11,
-52,
17,
31,
53,
47,
17,
-31,
-35,
50,
40,
-34,
0,
0,
63,
15,
15,
11,
-14,
-39,
18,
5,
-12,
-33,
0,
-26,
-22,
31,
53,
63,
-39,
11,
-3,
14,
-45,
-84,
26,
-24,
-11,
-11,
-51,
32,
-3,
33,
33,
10,
34,
-28,
-53,
-72,
48,
15,
-46,
-46,
1,
62,
-1,
-4,
34,
-61,
-36,
0,
4,
-4,
31,
-29,
-14,
-19,
-9,
16,
-63,
-36,
-1,
10,
11,
16,
-31,
6,
28,
-39,
29,
-41,
-4,
23,
-12,
7,
15,
-55,
-33,
34,
-17,
-59,
0,
48,
17,
0,
-56,
2,
-26,
29,
-40,
27,
-65,
9,
80,
-39,
-28,
0,
19,
-1,
-13,
12,
-22,
25,
12,
19,
-31,
7,
-50,
15,
-49,
20,
-18,
-31,
85,
-11,
-40,
9,
0,
-25,
9,
-17,
-41,
41,
27,
34,
-24,
3,
1,
-15,
18,
21,
0,
81,
-21,
0,
1,
-26,
-2,
3,
21,
-1,
-23,
-19,
47,
9,
12,
-7,
26,
58,
-51,
10,
5,
8,
6,
-18,
-10,
7,
-23,
-1,
-34,
50,
-36,
22,
15,
10,
-71,
58,
-23,
-17,
5,
23,
6,
-16,
-12,
37,
86,
-13,
-25,
0,
-5,
-30,
14,
-69,
49,
-20,
-25,
54,
15,
-34,
-13,
0,
-44,
-24,
-41,
38,
48,
-13,
32,
-42,
-55,
-36,
2,
36,
20,
34,
23,
0,
5,
17,
-20,
-21,
-54,
63,
45,
-52,
-43,
-42,
-19,
-27,
-66,
15,
24,
79,
2,
-5,
-55,
-54,
12,
19,
-8,
-12,
-102,
-58,
-3,
1,
21,
47,
-33,
-38,
-50,
-10,
4,
-2,
-40,
45,
-31,
-12,
-10,
-3,
0,
-23,
45,
7,
-29,
-67,
24,
28,
-11,
26,
23,
-13,
2,
56,
31,
-9,
-9,
6,
-21,
32,
11,
-12,
-43,
-22,
-11,
26,
16,
40,
16,
-32,
-26,
-53,
21,
2,
21,
43,
-65,
8,
-23,
31,
31,
-20,
-60,
2,
11,
-20,
-14,
-33,
51,
82,
-36,
8,
-12,
6,
26,
-50,
-81,
2,
-24,
-23,
-15,
2,
-15,
41,
-16,
-18,
0,
56,
-20,
22,
7,
27,
71,
-44,
19,
-32,
-76,
42,
-7,
81,
33,
16,
13,
56,
-17,
-4,
42,
-18,
-68,
36
] |
Wiest, J.
Three circuit judges, sitting en banc, heard evidence in support of charges preferred by the attorney general against defendant, found him guilty of unprofessional conduct as an attorney at law, and suspended him from practice for the period of three years. Defendant reviews by appeal.
The nature of the review herein, under the statute and court rules, whether in the nature of certiorari or a hearing* de novo, must first be determined. Defendant and the attorney general both contend that the review here is de novo. We do not so hold.
Court Buie No. 55, effective January 1, 1931, provides :
“Every order, determination, decision, sentence, action, judgment or decree of a judicial or quasi-judicial nature, rendered in any civil proceeding by any court, officer or tribunal (whether administrative or judicial), if reviewable in a court of record by writ of error, appeal, case-made, certiorari, mandamus, prohibition, or in any other manner (except by the commencement of an action and the fil ing of pleadings in such court of record), shall be reviewed by notice of appeal, and such review shall be designated an appeal. This rule shall not be deemed to restrict or enlarge the right of review provided by law, nor to make any order, determination, decision, sentence, action, judgment or decree reviewable which otherwise would not be reviewable.”
This rule terms all former methods of review appeals. Right of review is statutory, but procedure is subject to court rules.
At the time the rule was adopted, the statute (3 Comp. Laws 1929, § 13585) provided for review by writ of certiorari under the regular rules of this court. The statute was amended by Act No. 171, Pub. Acts 1931, and at the time of defendant’s suspension provided, and now provides:
“Any person feeling himself aggrieved by the determination of the judges hearing any proceedings for disbarment or reinstatement, may have the proceedings reviewed by the Supreme Court of this State on application thereto by a motion of appeal under the regular rules of said court.”
“Motion of appeal” must mean application for, and allowance of, an appeal. Our rule has not destroyed former writs in terming them appeals. The legislature evidently endeavored to make the amendment to the statute speak the language of our mentioned rule. The rule relating to appeals, however, applies one general term to several writs of review, inclusive of certiorari. It is true that, by the amendment, the legislature, in permitting review, departed from former specific designation of certiorari and accepted the omnibus term “appeal,” as employed in our rule, but this does not indicate a review de novo. The statute permits an “appeal under the regular rules of said court,” and the regular rules term review hy certiorari an appeal.
Our omnibus nomenclature of appeals leads us now to look through the verbiage of the statute and rule, and term the review an appeal in the nature of a writ of certiorari.
Review in this case is well stated as follows in Matter of Goodman, 199 N. Y. 143 (92 N. E. 211):
“In a proceeding of this character the power of review ends in this court when it appears that the proceeding has been instituted and conducted in accordance with the statutes and rules authorizing it; that no substantial legal right of the accused has been violated; that no prejudicial error has been committed in the reception or exclusion of testimony; and that there is some evidence to sustain the findings upon which the order is based. Further we cannot go, for the power and discretion of the appellate division in the infliction of punishment when guilt is established are not subject to review in this court.”
If we hear the case de novo, then we must enter judgment anew, and this we cannot do.
Defendant contends that disbarment proceedings are gwa-si-criminal. At the time the petition herein was filed by the attorney general, the statute was silent on the subject, but before the hearing in the circuit, the statute was amended, and now declares such proceedings to be civil in nature (3 Comp. Laws 1929, § 13584, as amended by Act No. 171, Pub. Acts 1931). This, of course, only bears on the quantum of proof. The amendment of 1931 added restrictive consequences to disbarment. We think the law in force at the time of suspension governs the consequences. The proceeding is civil, not quasi-criminal, and, beyond discipline of an officer of the court, serves the purpose of protecting the public and removing from the profession an unworthy member.
The proofs support the finding that defendant was not only neglectful of his duty toward Eva Meyer, his client, in a suit in chancery, but deliberately misled her. The question is one of professional ethics and not whether pecuniary loss was suffered by the client.
We do not think the proofs justified the finding that, in borrowing money from his client, Mrs. Furneis, defendant was guilty of unprofessional conduct. He borrowed $1,500, and gave his notes for $2,000. No fraud was employed. An attorney may, in good faith, borrow money from a client, but it is an unwise thing to do, for it subjects the act of the attorney to close scrutiny, and he assumes the burden of establishing fair and open dealing, uninfluenced by the confidential relation.
Defendant received pay to perfect an appeal from the court of common pleas to the circuit court, waited until the last day, and then did not get in touch with his client to have him sign the necessary bond. No appeal was taken, and defendant promised to return the fee he had received, but did not do so. Such inattention to duty to client, unaccompanied by moral delinquency, may call for censure and subject the attorney to civil action, but does not,, standing alone, constitute grounds for disbarment. When, however, as here, the attorney retains the fee for a service promised, and not performed by reason of his own neglect, there was justification for finding him guilty of unethical and unprofessional conduct.
The circuit judges found that Earl V. Frazier—
‘ ‘ was interested in a memorial park development in Macomb county, but had been unable to secure the necessary permit. He was advised to engage respondent, who told complainant he conld and would get the permit for $2,000. This was in March or April, 1929. In May, respondent vas paid $500 on account by Frazier and in July vas given a note for $2,500; he having, in the meantime, demanded more compensation. In the early part of August Mr. Frazier, becoming satisfied that respondent vas making little or no effort to secure the permit from the proper authorities, demanded the permit at once or a return of his money and note. Respondent promised action within a few days. Whether or not he made any effort to obtain the permit, he vas unsuccessful, and was then discharged, but refused to return either the money or the note. We believe and find that respondent accepted $500 and promised to get the permit, and that, after receiving the money, he made very little effort to do as he had agreed. If unable to keep his promise, he should have returned the money and the note, but has done neither. It is our belief, and we so find, that respondent is guilty on this charge of fraud, deceit, and unethical conduct.”
The evidence sustained this finding.
Upon the findings, here approved, the order made in the circuit court is affirmed.
Clark, C. J., and McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. Butzel, J., did not sit. | [
-8,
-13,
-6,
-9,
-6,
41,
-11,
3,
-28,
32,
-48,
-18,
10,
-40,
-22,
-46,
1,
32,
-19,
32,
7,
30,
39,
62,
-2,
2,
37,
25,
40,
-19,
5,
-44,
-26,
50,
-8,
-29,
40,
76,
15,
25,
59,
18,
-41,
21,
-91,
-39,
10,
4,
21,
-11,
14,
18,
-29,
6,
36,
1,
0,
-5,
-12,
51,
-11,
53,
8,
5,
7,
23,
-35,
-11,
14,
-7,
-87,
24,
-17,
-16,
-32,
-20,
-3,
0,
-34,
3,
-28,
28,
40,
-12,
32,
17,
12,
1,
-42,
40,
13,
8,
-57,
-39,
-49,
-21,
0,
-64,
49,
-27,
-24,
-58,
-4,
-4,
-5,
3,
8,
-15,
18,
-26,
7,
19,
-5,
-43,
-27,
-40,
24,
20,
19,
-21,
48,
61,
6,
44,
31,
-11,
-1,
20,
9,
10,
-45,
64,
5,
-14,
24,
11,
-14,
-17,
-12,
-51,
32,
20,
-6,
-49,
29,
9,
34,
16,
5,
55,
13,
2,
45,
31,
-35,
9,
-13,
-33,
3,
-14,
32,
39,
-77,
-54,
-5,
-3,
-6,
-40,
31,
9,
-18,
55,
71,
55,
-15,
-19,
40,
-28,
-35,
23,
-39,
58,
35,
-1,
-5,
4,
-50,
-20,
-53,
-37,
-35,
9,
6,
-64,
17,
-19,
-10,
40,
16,
4,
-80,
-5,
-6,
-23,
-19,
49,
1,
-22,
4,
-27,
-61,
-13,
-52,
-43,
-3,
-59,
-17,
1,
-30,
23,
-19,
14,
46,
-9,
-5,
-7,
19,
42,
6,
22,
30,
17,
-12,
9,
1,
24,
1,
44,
65,
8,
12,
56,
37,
-67,
-36,
16,
23,
0,
18,
-10,
45,
45,
13,
-40,
-18,
-32,
24,
-16,
-56,
2,
-2,
22,
-19,
29,
-37,
-21,
-32,
59,
-31,
-13,
0,
2,
35,
9,
-14,
10,
-13,
-71,
48,
9,
-35,
-6,
40,
-36,
-81,
60,
-29,
-2,
78,
24,
-5,
-10,
-43,
57,
29,
36,
0,
53,
-16,
-37,
9,
-13,
-31,
63,
0,
-21,
-37,
10,
15,
-37,
-16,
-52,
33,
43,
-17,
-2,
-53,
31,
-27,
-35,
-41,
-36,
18,
-56,
22,
-25,
32,
-19,
40,
-49,
13,
-20,
27,
-12,
69,
7,
10,
35,
0,
45,
55,
-28,
-19,
28,
-15,
-17,
-30,
-11,
52,
40,
-56,
-8,
22,
33,
-61,
-71,
-10,
-49,
-18,
-19,
44,
-3,
5,
-51,
37,
20,
25,
41,
-1,
-7,
-27,
17,
1,
-17,
-33,
-15,
13,
-39,
-13,
29,
-47,
30,
10,
32,
-9,
-27,
-31,
12,
-53,
-9,
5,
-11,
-9,
18,
-30,
56,
32,
27,
-1,
18,
-33,
25,
30,
5,
-12,
94,
2,
-4,
23,
69,
58,
11,
22,
9,
11,
16,
27,
20,
56,
-73,
-25,
-44,
-31,
2,
-13,
-10,
0,
-30,
36,
-5,
-30,
-51,
-1,
-38,
-35,
21,
-2,
11,
-41,
27,
-57,
-31,
-47,
2,
-30,
6,
1,
-29,
-17,
-10,
18,
31,
42,
-37,
0,
-34,
6,
2,
-39,
13,
60,
-11,
-13,
61,
11,
-52,
-46,
8,
8,
-23,
3,
6,
-19,
31,
-9,
-40,
40,
50,
5,
-7,
79,
-20,
-53,
-4,
7,
-19,
-73,
-34,
-17,
-77,
-19,
19,
37,
-24,
-24,
29,
0,
-48,
-53,
3,
-2,
28,
-12,
-50,
12,
-28,
-8,
-1,
58,
47,
-8,
40,
21,
12,
3,
-18,
-3,
-16,
-39,
-9,
38,
-8,
-27,
15,
-83,
-3,
-43,
-3,
-8,
-11,
39,
3,
-10,
-37,
-1,
45,
-28,
-52,
13,
8,
-33,
14,
25,
44,
5,
-12,
0,
18,
29,
1,
21,
29,
-30,
1,
-32,
-5,
-20,
6,
44,
-12,
13,
9,
5,
51,
22,
24,
-43,
-20,
24,
20,
33,
-3,
5,
36,
17,
-29,
9,
6,
0,
-35,
31,
17,
10,
6,
61,
-28,
-10,
1,
39,
-45,
-3,
22,
9,
17,
-23,
-17,
0,
-17,
45,
6,
-31,
56,
23,
5,
5,
41,
5,
18,
-25,
25,
69,
33,
-50,
20,
-6,
4,
21,
19,
-15,
-2,
-47,
-52,
-71,
-45,
24,
0,
20,
10,
6,
36,
35,
-6,
-28,
-19,
-38,
17,
-7,
-41,
34,
66,
5,
25,
15,
-58,
0,
22,
13,
26,
4,
33,
-3,
76,
9,
-37,
-1,
-23,
77,
-18,
3,
-16,
11,
-52,
-41,
8,
0,
49,
-32,
40,
17,
32,
38,
14,
44,
-24,
4,
61,
2,
28,
-27,
-27,
-12,
-32,
-9,
44,
-23,
-14,
-17,
1,
35,
39,
-4,
13,
35,
-37,
52,
7,
51,
-4,
-17,
-13,
-17,
-38,
12,
-25,
-7,
-24,
-14,
-18,
9,
-36,
-47,
-14,
-19,
25,
38,
-52,
0,
-25,
8,
-27,
30,
-4,
7,
-45,
14,
50,
3,
35,
54,
-17,
-19,
-10,
-7,
0,
-64,
25,
-21,
8,
34,
33,
32,
8,
-12,
0,
8,
3,
18,
44,
-14,
-30,
60,
29,
6,
0,
-91,
33,
45,
-43,
-18,
19,
3,
4,
-51,
45,
-30,
22,
-10,
13,
-2,
20,
1,
-46,
42,
-37,
12,
39,
5,
0,
28,
-3,
-65,
18,
3,
65,
58,
-48,
-54,
-109,
-17,
4,
5,
-17,
-53,
22,
28,
-5,
-18,
-59,
1,
-20,
11,
-21,
-8,
-34,
-1,
23,
-2,
26,
-10,
-1,
31,
-15,
-36,
-34,
24,
-35,
56,
-3,
32,
-60,
11,
30,
21,
-31,
18,
18,
58,
-53,
40,
44,
-35,
-20,
3,
19,
72,
-63,
-15,
-20,
35,
-14,
-46,
-2,
-2,
42,
30,
-19,
14,
10,
-23,
17,
2,
-4,
0,
-9,
-5,
-50,
-25,
-79,
-1,
-33,
18,
53,
18,
-59,
-24,
-6,
4,
45,
49,
33,
1,
-12,
11,
-53,
-47,
22,
5,
-16,
-33,
-27,
0,
-17,
-8,
-30,
3,
-14,
-31,
2,
-34,
24,
40,
-12,
21,
44,
-17,
19,
25,
-10,
-30,
-12,
-10,
4,
72,
42,
27,
13,
-15,
16,
-22,
14,
-17,
12,
5,
16,
44,
19,
1,
-22,
-5,
-10,
32,
43,
-33,
-21,
-25,
-49,
-17,
-53,
-17,
7,
15,
-10,
-4,
-17,
-42,
-31,
-12,
10,
38,
-21,
-36,
10,
16,
-18,
-43,
21,
-57,
16,
-9,
10,
-9,
-43,
-56,
-15,
-13,
-3,
61,
24,
0,
-26,
-18,
3,
32,
-13,
-4,
21,
-10,
13,
-5,
4,
9,
-15,
9,
-6,
-39,
-21,
-21,
0,
-8,
28,
-45,
-66,
-26,
19,
-33,
-44,
-23,
-17,
24,
-32,
12,
-26,
22,
-25,
15,
63,
-3,
-42,
-26,
46,
50,
32,
5,
-34,
-12,
42,
1,
26,
-31,
-4,
7,
1,
3,
54,
-45,
2,
9,
-95,
-24,
14,
-24,
62,
-19,
-3
] |
Wiest, J.
The Saginaw Hotels Company, Inc., executed a mortgage to the Standard Trust Company, as trustee, to secure an issue of bonds. The mortgage contained an assignment of rent clause under Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§ 13498, 13499),.and a clause for the appointment of a receiver. The Standard Trust Company filed a suit in the Saginaw circuit to foreclose the mortgage, and, under power of the mortgage, collected rents. The Standard Trust Company became insolvent, and Everett W. Barber was appointed its general receiver by the Wayne circuit court. November 3, 1930, an order was entered in the Wayne circuit removing the Standard Trust Company as trustee because of its insolvency, adjudging that Barber, as receiver, had “no right, title or interest or claim in, to or upon said trust estate,” and that the Standard Trust Company and Barber, as its receiver, convey and deliver to the successor trustee all moneys belonging to the trust. The Fidelity Trust Company became the successor trustee and was made plaintiff in the foreclosure suit by order of substitution in the Saginaw circuit.
As successor trustee and substituted plaintiff, the Fidelity Trust Company petitioned the Saginaw circuit court to appoint a receiver, to collect rents and income during pendency of the suit, setting up that:
‘ ‘ One of the properties covered by said mortgage is an uncompleted hotel building, which requires the services of watchmen; that watchmen have been employed to conserve the property, and your petitioner is now informed that they have owing to them for back wages a large sum of money, to-wit: $1,000, and upwards;”—
that the tenant of the Benjamin Franklin Hotel refused to pay rent, and that unpaid taxes have reached the amount of $10,000.
The court appointed Charles Robinson receiver of the properties covered by the mortgage “for the purpose of maintaining and conserving the same,” and directed:
“That the receiver shall exercise all such powers as shall be necessary to maintain and conserve the property in a proper physical condition, and shall be empowered to make such repairs as shall to him seem reasonably necessary to maintain the building in a proper physical condition, and preserve the same in a safe condition, pay all taxes and all charges in the nature thereof, due and to become due upon the same, until the further order of the court, said receiver being hereby given authority to employ any and all agents, workmen, etc., which in his judgment it shall be necessary to employ to carry out this order, as well as to employ watchmen for the purpose of guarding the vacant portions of said property, and to pay such agents, employees, watchmen, etc., from any moneys collected by him through rents, or income, or from any moneys derived through the issuance of receiver’s certificates, and also to pay the watchmen now employed to guard the vacant portions of said property any salaries lawfully due them for past services as such. ’ ’
The receiver then, by petition, informed the court :
“That there are many and various pressing obligations and expenses which make necessary the use of any moneys which are available from the income of the said property or from funds which have been paid under the said mortgage and now available for the payment of such obligations and expenses; that the obligations which require instant attention consist of services of the watchmen for the so-called Tavern property and for repairs to the said property and the Benjamin Franklin Hotel property; that the said watchmen have threatened to quit their employment and leave the property exposed and unwatched unless immediate provision is made for their compensation and for past services rendered; and your petitioner is further informed and believes that repairs to the Benjamin Franklin Hotel property are needed at once if the said property is to be preserved in a safe condition; that it is now in an unsafe condition and if allowed to stand may cause great damage to the property and .to others; that there likewise remain unpaid certain taxes which cannot be allowed to remain longer in delinquency without great danger of causing a cloud on the title; that your petitioner is likewise informed and believes that certain insurance is due or will be due which must he paid if the premises are to be protected from hazard.”
The receiver asked that funds from rents, collected by the Standard Trust Company, while it was trustee, and in the hands of its' receiver, be ordered paid to him as receiver, and thereby made available for payment of obligations and conservation of the mortgaged properties.
Plaintiff, trustee, admitted there was money due it from the receiver of its predecessor trustee, but asserted that, when received, it is to be held for the use and benefit of holders of the bonds, and that:
“there is necessity for the payment of the watchmen’s salaries, and also that there are some repairs which are necessary to be made to the properties, and that the taxes are unpaid, but denies that it is necessary, proper or legal to make use of any of the funds which may come into the hands of this plaintiff and which were received or collected by former trustee prior to the appointment of said receiver ; ”—
admitted that there was due from Barber, receiver of .the Standard Trust Company, approximately $8,000, but denied that such money was available for the purpose sought by the receiver without consent of plaintiff, and also denied the necessity of using such funds for the preservation of the property.
Plaintiff also claimed that the court had no jurisdiction and no legal authority or right to require plaintiff to turn over any of said funds to the receiver or to permit the receiver to do any act or acts other than to take charge of the property, preserve the same, and collect the income therefrom.
The court granted the order and plaintiff, by appeal, presents the following question:
“Can a receiver, appointed under a trust mortgage containing an assignment of rent clause under the provisions of Act No. 228, Pub. Acts 1925 (3 Comp. Laws 1929, §§13498, 13499), require the trustee, under said mortgage, to turn over to the receiver (appointed to take possession of the property of the mortgagor and collect the rents and income for the trustee) moneys in its hands belonging to said trust and received prior to the appointment of the receiver?”
The receiver was appointed at the request of the trustee to collect rents and conserve the properties, but, when need was shpwn, and no other funds available, the contention was made that the rents collected by the trustee before the appointment of the receiver may not be employed for such purpose.
It is the duty of a mortgagee, in possession under power granted in a mortgage, to receive rents during pendency of foreclosure, to preserve the property, at least within means furnished by the rents.
As stated in 2 Jones on Mortgagés (8th Ed.), §1443: '
“Until foreclosure, the mortgagee, although in possession for the purpose of foreclosing, is not the owner of the property, but beyond securing payment of the debt due him is really in the position of trustee for the owner. He has no authority to make the estate better at the expense of the mortgagor, but is bound to use reasonable means to preserve the estate from loss and injury. * * * What is a proper expenditure must depend upon the circumstances of each case. * # *
“The mortgagee in possession is bound to ruake all reasonable and necessary repairs, and is responsible for loss occasioned by his wilful default or gross neglect in this respect.”
Such is a duty and not merely optional, and, being a duty, the trustee is in error in contending that funds from rents belong to the bondholders, regardless of preservation of the main security.
“A mortgagee by invoking the power of the court to appoint a receiver thereby submits to the reasonable discretion of the court the management and control of the property, through its receiver, and the action of the court in that respect binds the mortgagee. After thus generally submitting the property to the discretion of the court, the mort gagee may not say that the court had no power as to him to do any act in the conservation and management of the property which lessens the lien of the mortgage, without his especial consent.” 42 C. J. p. 127.
The receiver is an officer of the court, and, in this instance, was appointed at the request of the mortgagee to collect rents during foreclosure and save the mortgaged properties from material damage and loss. When the mortgagee so invoked the aid of the court it called into action a power with sufficient reach to subordinate collected rents during the pendency of foreclosure, and in the hands of the trustee, to the carrying out of the needed conservation of the properties.
The order appealed from is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
4,
15,
0,
-19,
-41,
5,
49,
35,
-6,
-42,
28,
-28,
2,
-4,
0,
17,
-27,
14,
-52,
14,
6,
-29,
-65,
-6,
6,
8,
25,
-75,
44,
6,
25,
-15,
9,
18,
-44,
-42,
-23,
-8,
-21,
-30,
-29,
41,
4,
36,
-22,
-7,
9,
-83,
0,
-24,
-38,
-2,
25,
48,
2,
-28,
-47,
-17,
-13,
55,
26,
-17,
-9,
-4,
-34,
-17,
4,
35,
31,
-13,
40,
20,
-1,
30,
39,
34,
28,
1,
-41,
-27,
-7,
-86,
-2,
-21,
-47,
-25,
5,
11,
6,
7,
-71,
30,
-1,
14,
-27,
2,
28,
16,
41,
40,
-53,
-36,
-10,
32,
35,
0,
30,
-35,
-27,
51,
-3,
-72,
56,
-3,
-31,
34,
-19,
12,
49,
14,
-15,
-30,
12,
-15,
9,
-3,
-22,
-18,
-28,
-3,
5,
16,
-41,
70,
12,
1,
9,
-49,
-13,
-24,
18,
-20,
2,
13,
-66,
-29,
21,
-13,
31,
-7,
-25,
19,
40,
55,
47,
25,
-21,
-4,
-14,
-46,
2,
-69,
-11,
-32,
-39,
-22,
25,
-29,
2,
83,
-30,
3,
0,
0,
-16,
41,
50,
-12,
-45,
-25,
-18,
30,
17,
-2,
35,
-50,
34,
-25,
26,
5,
4,
-20,
-9,
17,
-64,
6,
8,
-19,
-18,
36,
-21,
6,
-28,
-9,
0,
-5,
30,
-16,
11,
-1,
-28,
35,
-35,
27,
6,
11,
-30,
3,
47,
-48,
-34,
30,
-2,
90,
-9,
-45,
13,
15,
2,
22,
-8,
-30,
36,
-4,
-31,
1,
-9,
54,
-5,
-5,
1,
0,
-14,
33,
-41,
-36,
-28,
-35,
-39,
-23,
-26,
17,
0,
41,
-48,
5,
-21,
1,
-9,
-41,
24,
-52,
-78,
26,
34,
-25,
-14,
33,
11,
15,
0,
19,
64,
-14,
-5,
-63,
-37,
4,
-31,
-9,
5,
-63,
0,
40,
-26,
-16,
42,
-41,
-21,
30,
9,
44,
23,
15,
21,
-21,
-80,
-15,
47,
-13,
-48,
18,
-18,
53,
-10,
19,
-8,
10,
14,
-2,
38,
-14,
-35,
-9,
36,
-17,
29,
33,
-42,
-24,
46,
4,
-33,
10,
10,
15,
18,
21,
-46,
1,
-37,
-40,
-33,
-20,
8,
30,
25,
-10,
16,
3,
9,
-7,
-18,
-5,
-11,
-9,
59,
2,
-43,
9,
-74,
28,
-16,
-5,
-14,
50,
56,
77,
0,
33,
34,
-8,
-1,
7,
14,
-30,
-66,
48,
67,
17,
32,
3,
1,
12,
0,
39,
-65,
17,
-67,
35,
26,
14,
40,
11,
11,
-36,
-56,
-4,
-26,
33,
-24,
4,
0,
58,
-42,
15,
-23,
0,
-77,
6,
-34,
56,
-30,
31,
-30,
-11,
51,
-61,
6,
79,
-10,
17,
7,
-22,
7,
-18,
0,
-18,
68,
-13,
5,
-17,
-24,
1,
-1,
0,
20,
38,
-59,
-18,
-32,
-10,
-42,
5,
22,
25,
-11,
-4,
-21,
7,
19,
-19,
0,
0,
26,
28,
-22,
-72,
17,
49,
20,
26,
-6,
40,
18,
-1,
16,
13,
26,
21,
76,
-64,
73,
10,
-43,
0,
21,
-22,
-7,
8,
5,
-20,
-42,
7,
-27,
-37,
24,
1,
-32,
-1,
20,
25,
57,
40,
6,
0,
-16,
-1,
-30,
29,
33,
-19,
28,
36,
24,
0,
-39,
14,
-13,
-22,
32,
-52,
12,
2,
-8,
-17,
-40,
-46,
-61,
32,
-18,
-19,
30,
74,
17,
-13,
2,
-66,
34,
14,
35,
43,
-7,
12,
-47,
24,
5,
67,
19,
-31,
-24,
4,
22,
0,
-4,
-36,
11,
1,
2,
-15,
-9,
-7,
27,
7,
26,
23,
15,
-44,
-30,
-31,
-43,
-26,
20,
-16,
-5,
26,
43,
-22,
30,
7,
-54,
2,
41,
-9,
4,
-32,
-64,
-16,
-35,
0,
-16,
-2,
1,
30,
-27,
9,
-26,
-52,
-15,
6,
18,
21,
41,
-53,
-10,
9,
-19,
3,
-60,
106,
7,
12,
4,
35,
22,
-11,
19,
25,
-45,
14,
-105,
-48,
29,
-1,
-70,
-27,
-5,
37,
30,
4,
-27,
-35,
52,
38,
-47,
38,
40,
-13,
10,
32,
58,
56,
45,
17,
32,
11,
43,
17,
2,
17,
-29,
-5,
-2,
-11,
17,
-17,
7,
-25,
18,
18,
-50,
-19,
-23,
0,
-2,
5,
-4,
-36,
66,
17,
-51,
35,
23,
22,
-2,
-17,
8,
-13,
33,
-38,
29,
30,
-19,
54,
40,
40,
40,
19,
52,
21,
79,
-5,
32,
46,
44,
-35,
-49,
27,
-13,
-32,
4,
57,
-7,
57,
21,
-8,
2,
-50,
41,
-10,
2,
0,
-52,
-3,
46,
-13,
25,
-9,
0,
-37,
23,
-45,
3,
14,
-27,
-12,
-6,
-44,
-72,
-19,
4,
-22,
11,
0,
34,
33,
-5,
30,
-10,
33,
-62,
-49,
20,
-7,
23,
-16,
3,
-16,
-49,
-28,
-18,
-64,
13,
25,
-36,
-34,
-39,
32,
-29,
-38,
32,
11,
3,
37,
-52,
-2,
-3,
19,
26,
-5,
0,
44,
-58,
-30,
20,
-34,
-10,
23,
35,
10,
-20,
53,
15,
27,
32,
-6,
-13,
17,
18,
-72,
-29,
29,
-46,
-24,
1,
-21,
29,
-3,
-26,
-41,
-5,
-49,
1,
-20,
17,
-39,
13,
50,
66,
-18,
-33,
-12,
9,
-32,
-53,
31,
74,
22,
-5,
-13,
-2,
74,
-39,
21,
35,
7,
-32,
-15,
-14,
-15,
-48,
-5,
44,
-28,
17,
10,
4,
65,
-12,
8,
-30,
36,
15,
-51,
14,
-39,
-32,
0,
-60,
30,
-42,
21,
-23,
-2,
49,
-57,
7,
-26,
29,
-11,
-21,
-35,
-14,
37,
-8,
-70,
15,
-20,
-36,
-4,
-9,
-15,
-4,
13,
-19,
21,
-30,
-1,
26,
-42,
-36,
31,
0,
0,
-28,
3,
-42,
-38,
-29,
-22,
-11,
12,
7,
-38,
-61,
-8,
72,
23,
16,
-54,
-33,
28,
-21,
13,
7,
16,
42,
31,
47,
80,
-14,
-76,
-21,
65,
22,
44,
24,
-53,
34,
-1,
-41,
7,
-102,
-30,
-38,
1,
20,
66,
23,
16,
-7,
13,
-30,
-21,
11,
2,
1,
-54,
29,
-2,
-15,
-48,
-41,
1,
15,
-40,
24,
15,
30,
53,
4,
36,
-42,
13,
41,
-63,
-9,
79,
7,
-4,
-10,
-57,
13,
-42,
6,
-7,
28,
25,
0,
-40,
-12,
4,
-9,
39,
8,
40,
2,
-42,
-32,
-32,
1,
-21,
49,
-39,
36,
-21,
24,
-30,
1,
-2,
3,
-3,
-38,
-7,
-11,
9,
19,
52,
64,
-29,
-7,
-43,
32,
35,
-20,
-23,
52,
-18,
-9,
0,
57,
-3,
-35,
25,
7,
-1,
41,
9,
-23,
-12,
46,
8,
15,
0,
19,
47,
-14,
2,
-27,
-28,
-31,
-42,
5,
78,
-21,
21,
-44,
-2,
39,
-17,
73,
-21,
-21,
53
] |
Wiest, J.
Defendants Wells and Sanders are brother and sister, and conducted a storage and trucking business under the name of Security Storage & Transfer Company, with Wells as active and managing partner. Wells, in the name of the company, signed an order for a liquid roof preservative, sold by plaintiff, and the product was billed to and received by the company. This suit was brought to recover the contract price of the product, was tried without a jury, and defendants had judgment.
The court found the matter was outside the scope of the company, and defendant Sanders, not having authorized or ratified the transaction, was not liable, and defendant Wells was induced to sign the contract by false and fraudulent representations, and was not liable. The name “Security Storage & Transfer Company” plainly indicated the scope of the business carried on. Storage in a warehouse and carriage by trucks was, and for many years had been, the sole business of the company. Defendant Wells could not depart from the scope of the partnership without authorization and bind his copartner by a wholly foreign contract. Uniform partnership act, 2 Comp. Laws 1929, § 9849; McIntosh v. Detroit Savings Bank, 247 Mich. 10.
It must have been manifest to plaintiff’s agent that the purchase was not one, apparently, for carrying on the business of the partnership in the usual way, unless it was to make deliveries of orders procured by plaintiff.
We find no assent by defendant Sanders, no acts of ratification by her, and no evidence justifying application of the doctrine of estoppel. As soon as defendant Sanders discovered the transaction she repudiated it and refused to be bound thereby, and so notified plaintiff.
The court found that plaintiff’s agent:
“fraudulently represented and stated to the defendant (Wells) that the said Delta Asbestos Company, Incorporated, has been a company carrying on and conducting a large business in the sale of roofing material throughout the United States, that it was especially interested and desirous of establishing an agency in Grand Eapids for the sale of its material, and that it had many requests and orders from a large number of purchasers and prospective purchasers in and around Grand Eapids, and that it desired to have the defendant (Wells) act as its agent in Grand Eapids, Michigan, to purchase same (some) stock, and fill all of said orders, and stated and represented to him that if he did purchase said material from said plaintiff, it would immediately turn over to him all of the orders which it had on hand, which would be enough to cover the material purchased, and that all that he would have to do was to fill said orders of said purchasers, and collect the money and receive the profits between the purchase price, and the sale, and that it would forward to the said defendant all of said orders which it had on hand from prospective purchasers of said material, and that the same was sufficient to take up all the material which it proposed to sell to, defendant under said contract. It appears from the evidence in this case that all of these representations were made by the said plaintiff to the said defendant, Harry Wells, and that he relied upon the same in making the said contract and purchasing said material and that all of said statements which were made by said plaintiff’s representative to induce him to purchase said material were false, and that said plaintiff did not have any orders on hand from prospective purchasers, and never did forward to the said defendant any orders covering the purchase of said material, and there was no demand for said material in and around Grand Rapids as represented, and that upon discovering said false and fraudulent statements, he, the said Harry R. Wells, notified the agents and representatives of the said plaintiff, of this fraud and misrepresentation, and then and there repudiated and rescinded said contract, and tendered back to said plaintiff said material which it refused to accept.
“I, therefore, find that under the evidence in this case the said plaintiff cannot recover from the said defendant, Harry Wells, on account of its said false and fraudulent representations so made to him to induce him to purchase said material, and I, therefore, find that he is not liable on said contract. ’ ’
Plaintiff contends that evidence of fraudulent representations was inadmissible because it tended to vary the terms of the contract.
We said in Plate v. Detroit Fidelity & Surety Co., 229 Mich. 482:
“It is elementary that fraudulent representations inducing a contract will void it. Plaintiff does not seek to vary the terms of the contract, but claims that the contract is void because she was induced to execute it by false and fraudulent representations made by Mr. Scott.”
In that case the contract signed contained the provisions :
“This subscription is not subject to countermand and no conditions, agreements or representations either written or verbal, other than those printed herein, shall be binding on said company. * * * This subscription contains the entire contract between the subscriber and the company. ’ ’
Of this we said:
“It has long been settled that such provisions in a contract do not prevent showing the contract is void by reason of false and fraudulent representations in its procurement. Peck v. Jenison, 99 Mich. 326; J. B. Millet Co. v. Andrews, 175 Mich. 350; J. B. Colt Co. v. Reade, 221 Mich. 92.”
The representations were inclusive of alleged existing facts. The circuit judge saw the witnesses and there is support for his findings.
It is urged that the judgment is against the clear weight of competent evidence. We find no motion for a new trial. We decline to weigh the evidence.
The judgment is affirmed, with costs to defendants.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
-3,
13,
-11,
-2,
-46,
13,
-28,
48,
-17,
32,
-35,
-7,
63,
-2,
9,
5,
37,
90,
-16,
1,
5,
-33,
-25,
44,
3,
-27,
11,
-5,
38,
52,
-25,
20,
30,
-71,
-58,
50,
7,
47,
28,
-6,
30,
45,
27,
-8,
16,
-52,
36,
-23,
66,
-23,
40,
-3,
24,
-19,
-1,
-34,
19,
-6,
35,
-7,
22,
-39,
5,
24,
-2,
-20,
-33,
63,
-25,
72,
-12,
-4,
1,
-29,
22,
-46,
-35,
30,
-20,
-30,
60,
-49,
57,
-41,
-59,
104,
-35,
-11,
2,
-2,
-18,
-19,
-30,
-57,
-30,
32,
11,
15,
-12,
-8,
-24,
-9,
-28,
16,
-10,
54,
18,
5,
-15,
36,
-42,
-1,
-4,
-10,
-7,
-15,
-11,
18,
-13,
8,
-11,
4,
25,
27,
4,
-48,
-11,
-46,
-22,
-30,
36,
19,
-37,
45,
-17,
80,
0,
-32,
-6,
-6,
-1,
30,
-21,
4,
-19,
36,
52,
8,
-24,
-36,
-44,
-20,
27,
1,
-6,
13,
-17,
11,
26,
-64,
34,
-15,
10,
0,
-44,
-8,
22,
24,
-58,
14,
-15,
-8,
-22,
-19,
28,
36,
16,
-12,
-61,
-56,
-2,
-11,
-9,
23,
8,
-39,
25,
-5,
14,
-9,
25,
1,
-38,
26,
-56,
43,
-24,
46,
15,
19,
15,
-58,
-37,
-17,
-7,
32,
29,
7,
38,
-24,
8,
0,
-32,
-66,
-19,
-20,
-55,
-24,
-24,
-70,
-5,
-28,
-10,
54,
-12,
-33,
16,
4,
-12,
3,
-7,
-27,
-18,
19,
-12,
-26,
29,
-19,
28,
17,
46,
-49,
-47,
-6,
12,
-39,
-15,
2,
-34,
14,
-44,
-35,
-23,
26,
-15,
-33,
-43,
-4,
-46,
-11,
11,
55,
-68,
4,
41,
14,
-7,
-16,
-63,
-11,
-39,
-29,
20,
-18,
-26,
-20,
-39,
18,
37,
-52,
22,
-21,
-31,
-38,
-7,
39,
-21,
40,
-49,
14,
-14,
19,
13,
-54,
57,
9,
1,
-20,
-30,
9,
-37,
-24,
-5,
1,
30,
26,
-13,
23,
3,
-19,
-5,
-13,
-20,
-12,
7,
-9,
51,
8,
-13,
-41,
15,
27,
30,
41,
-18,
-16,
13,
-7,
71,
0,
-18,
11,
-8,
-41,
-25,
-57,
38,
-31,
-11,
10,
5,
18,
15,
-19,
-1,
1,
43,
-44,
-47,
-36,
-31,
-24,
9,
37,
-8,
14,
-5,
13,
-19,
49,
19,
-18,
-23,
26,
-15,
23,
20,
56,
5,
67,
-24,
-22,
-20,
-12,
20,
-15,
-54,
-38,
-57,
19,
-35,
-26,
73,
-43,
20,
5,
-55,
-4,
6,
58,
-74,
0,
15,
70,
11,
-48,
-32,
-4,
-21,
3,
33,
79,
-1,
-42,
-28,
-23,
31,
-51,
-21,
1,
29,
-20,
-21,
-8,
-24,
-9,
51,
-26,
23,
20,
14,
-29,
-69,
-4,
26,
-50,
1,
25,
-59,
-10,
-32,
16,
14,
2,
-22,
0,
-47,
19,
8,
38,
-37,
-11,
-61,
-33,
20,
3,
30,
-7,
15,
-16,
43,
61,
48,
18,
45,
42,
23,
-6,
30,
-16,
-2,
-4,
67,
-27,
12,
-4,
47,
-65,
9,
33,
1,
60,
17,
41,
-19,
-31,
22,
12,
-4,
20,
11,
98,
3,
-17,
29,
-42,
-20,
-29,
-11,
1,
7,
0,
17,
-20,
-16,
14,
4,
18,
-2,
11,
-12,
-8,
20,
37,
10,
-11,
-36,
-3,
-11,
37,
27,
-2,
32,
3,
-10,
24,
-2,
22,
-21,
49,
-25,
29,
-13,
22,
-7,
29,
25,
30,
40,
-21,
18,
15,
48,
30,
3,
-33,
18,
-7,
-38,
-19,
-8,
-10,
6,
-9,
-13,
-9,
-14,
-18,
-28,
-28,
-23,
10,
-1,
18,
-12,
-17,
27,
23,
10,
-17,
-86,
15,
-3,
-53,
65,
-29,
16,
8,
43,
56,
-27,
18,
14,
26,
11,
0,
-16,
-2,
-63,
24,
6,
11,
70,
-67,
-50,
4,
23,
16,
-8,
-4,
29,
-50,
20,
-14,
53,
-13,
40,
-52,
-9,
15,
-23,
-36,
-13,
-41,
-38,
-7,
-2,
26,
-13,
2,
6,
13,
-4,
-24,
23,
35,
4,
-29,
41,
3,
18,
16,
-13,
46,
5,
43,
1,
17,
36,
5,
-43,
-33,
-31,
5,
45,
-11,
35,
7,
-15,
-2,
31,
1,
40,
-31,
1,
-56,
25,
27,
36,
16,
-41,
37,
24,
5,
-25,
36,
-1,
-38,
41,
-24,
6,
-19,
-65,
21,
16,
-25,
13,
-37,
48,
-29,
26,
-34,
5,
-26,
52,
5,
55,
21,
0,
70,
17,
29,
26,
18,
28,
-15,
46,
4,
-12,
-58,
-20,
-22,
-61,
13,
6,
-7,
-21,
-46,
-11,
-28,
-33,
11,
-33,
28,
-20,
16,
-22,
4,
0,
4,
0,
-57,
-1,
0,
15,
40,
-34,
37,
-23,
-41,
-29,
-46,
55,
-39,
-17,
50,
10,
-21,
-8,
-2,
25,
0,
35,
25,
-1,
41,
-47,
-33,
-7,
-34,
35,
5,
29,
36,
-47,
-33,
27,
2,
16,
-13,
30,
19,
30,
-3,
-11,
-22,
-29,
36,
-48,
-12,
-9,
-6,
11,
-38,
-12,
4,
-37,
-32,
39,
-63,
-30,
7,
-19,
-3,
-32,
51,
34,
-20,
38,
1,
25,
-21,
0,
32,
23,
-55,
42,
0,
62,
25,
-9,
35,
35,
-19,
-34,
37,
26,
73,
6,
-38,
40,
36,
-13,
25,
12,
-2,
-8,
-23,
7,
-19,
4,
-50,
9,
0,
40,
0,
-33,
1,
-24,
52,
-9,
-7,
-49,
-42,
-55,
-44,
-3,
-9,
-38,
-3,
11,
5,
-33,
-5,
21,
28,
65,
-21,
-1,
-69,
36,
-9,
-12,
18,
65,
-52,
-10,
22,
12,
-18,
-17,
-2,
19,
-21,
13,
8,
-47,
-2,
43,
55,
20,
-11,
-33,
45,
-5,
-49,
-13,
-6,
24,
3,
-11,
39,
13,
2,
4,
-34,
10,
28,
-8,
16,
-41,
60,
17,
56,
-21,
-15,
29,
-8,
-36,
59,
9,
-71,
-69,
-12,
-15,
-15,
45,
-41,
26,
-16,
7,
-26,
-8,
29,
-10,
-7,
22,
44,
-34,
-46,
27,
7,
21,
31,
12,
11,
20,
27,
-29,
60,
-18,
23,
-15,
-5,
-58,
35,
-18,
5,
30,
34,
-18,
-36,
-9,
4,
-13,
-62,
-16,
4,
-10,
-32,
2,
-44,
-20,
-8,
1,
-21,
1,
32,
28,
-14,
11,
31,
-1,
35,
-43,
14,
-24,
-5,
-37,
-34,
26,
59,
-4,
26,
-18,
-7,
64,
10,
-9,
0,
5,
26,
-24,
-23,
-10,
-37,
-13,
-3,
32,
21,
-4,
-41,
-52,
40,
11,
0,
-18,
0,
0,
-6,
12,
26,
-5,
28,
-7,
10,
37,
40,
-38,
-18,
15,
-26,
-38,
-9,
-16,
43,
41,
12,
33,
-3,
-28,
-55,
22,
62,
-32,
5,
-74,
-10,
-35,
-18,
-5,
3,
22,
53
] |
Sharpe, J.
In this action, tried by the court without a jury, the plaintiff recovered a judgment for $3,000 against the defendant Stone for damages sustained by him resulting from a collision of the car in which he was riding, and which was owned by him, and a car driven by the defendant Stone, but owned by the defendant Gordon. As to the latter, there was a finding of no cause for action. The defendant Stone seeks review by appeal.
The collision occurred at the intersection of Theodore and Brush streets in the city of Detroit. In a carefully prepared opinion the trial court reviewed the evidence at length. He found the defendant guilty of negligence, and that the driver of plaintiff’s car was free from contributory negligence. On a motion for a new trial, in which it was urged that his findings were against the great weight of the evidence, he again reviewed the testimony and declined to disturb the judgment entered. It will serve no useful purpose to state or comment upon the proofs submitted. There was much conflict in the testimony, but a careful reading of the record satisfies us that the finding as to the liability of the defendant should not be disturbed.
It is urged that the damages awarded were excessive. The plaintiff was a physician, engaged in practice at the time of his injury. His right collar bone and two ribs on his right side were broken. His head, his left hand, and his left foot were bruised. He was confined to his bed for about three weeks, and to his house for a week longer, and still suffers some pain as a result thereof. He testified that his earnings before his injury had been about $60 a day. His car, for which he had paid $550 a few months before the accident, was totally destroyed. He valued it at $375. The trial court fixed the damages at $3,000, made up of $1,500 for loss of earnings, $375 for the car, and the balance for pain and suffering. In our opinion this amount cannot be said to be excessive.
The judgment is affirmed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, J J., concurred. | [
-56,
60,
-13,
-4,
-42,
3,
49,
-11,
-11,
-18,
36,
-2,
6,
-20,
9,
-36,
12,
-6,
19,
-14,
-13,
-37,
21,
-16,
-18,
-50,
-14,
-15,
-7,
3,
23,
-14,
14,
30,
-40,
50,
12,
30,
-6,
38,
47,
-3,
-1,
18,
-2,
-15,
44,
-16,
3,
-41,
0,
-15,
-27,
-43,
45,
-15,
23,
61,
-35,
-26,
24,
15,
41,
-10,
44,
17,
-16,
-3,
8,
39,
-82,
-19,
29,
15,
-33,
-16,
11,
39,
-25,
14,
-2,
-5,
55,
9,
-3,
-4,
15,
-4,
-65,
-57,
-1,
-13,
22,
25,
2,
38,
-20,
-44,
49,
-7,
10,
18,
2,
3,
9,
-21,
-20,
-49,
-6,
15,
-12,
42,
45,
43,
-2,
-35,
-14,
-1,
24,
-13,
5,
-21,
-12,
-10,
-2,
9,
-10,
-3,
6,
-7,
56,
-21,
15,
14,
-26,
-29,
-55,
-22,
-6,
52,
55,
14,
0,
11,
19,
38,
7,
2,
2,
-8,
-7,
-21,
-1,
-4,
17,
-33,
-30,
-21,
75,
-27,
68,
3,
10,
57,
11,
21,
-34,
1,
-7,
14,
31,
-14,
35,
-40,
28,
28,
-10,
12,
-44,
-14,
0,
31,
33,
-15,
-21,
-15,
18,
12,
9,
-29,
26,
7,
-91,
-5,
-12,
4,
42,
15,
39,
-23,
9,
-48,
-33,
-30,
-12,
3,
25,
-3,
41,
11,
17,
-11,
-2,
-58,
27,
14,
21,
-66,
3,
-76,
23,
-37,
-7,
-21,
-38,
-11,
-63,
-10,
-14,
14,
17,
24,
-23,
47,
-24,
-37,
0,
-32,
46,
-11,
-11,
4,
5,
11,
19,
25,
-27,
7,
-26,
10,
64,
5,
-5,
-21,
-32,
-23,
57,
17,
7,
32,
-14,
99,
-6,
31,
24,
-4,
-18,
8,
-14,
-11,
-54,
-29,
14,
5,
-22,
-77,
-25,
3,
32,
38,
-6,
-39,
-56,
-1,
8,
59,
-1,
0,
45,
-9,
1,
-49,
22,
8,
-2,
0,
10,
-12,
-39,
1,
7,
49,
25,
54,
30,
15,
-9,
15,
2,
8,
-13,
-58,
21,
54,
40,
5,
-23,
0,
1,
-38,
-6,
33,
-73,
-7,
18,
7,
53,
-70,
-30,
-62,
-4,
38,
11,
46,
18,
-43,
21,
12,
2,
-11,
32,
-22,
8,
-24,
3,
22,
-6,
-11,
-6,
20,
-71,
-25,
39,
14,
-44,
9,
37,
-37,
-4,
-7,
38,
-23,
37,
29,
-48,
-13,
-8,
12,
-68,
98,
-10,
-22,
-9,
-19,
-16,
-53,
47,
-34,
-13,
68,
3,
4,
14,
-44,
20,
16,
-36,
-40,
-53,
-3,
-51,
10,
42,
-1,
-38,
19,
7,
-19,
-19,
-14,
-14,
11,
33,
17,
-24,
-9,
13,
25,
-1,
-6,
-23,
4,
41,
4,
15,
36,
53,
36,
-78,
-22,
20,
50,
-14,
-51,
25,
-23,
14,
17,
-44,
9,
13,
7,
16,
-61,
44,
-4,
-35,
-14,
3,
-20,
-62,
6,
-12,
34,
7,
21,
-9,
36,
58,
11,
44,
-11,
34,
25,
5,
-10,
4,
-38,
2,
-29,
7,
-62,
-33,
-38,
-21,
-37,
-25,
-15,
35,
-40,
-10,
30,
-21,
0,
30,
-32,
-25,
7,
-30,
54,
-37,
-14,
-12,
45,
-33,
11,
-50,
14,
-33,
26,
19,
0,
0,
-13,
5,
34,
-21,
35,
-46,
-25,
-32,
2,
-67,
-23,
32,
-38,
2,
-44,
22,
-26,
-36,
34,
-17,
-8,
8,
2,
-33,
-11,
56,
3,
1,
6,
-19,
19,
-11,
-26,
-16,
-15,
-16,
-34,
16,
-3,
-13,
-4,
-25,
-22,
6,
-21,
-3,
1,
-45,
24,
-13,
-22,
-10,
-24,
5,
20,
69,
42,
10,
-4,
-1,
-29,
25,
-26,
58,
-26,
24,
1,
-8,
3,
0,
52,
26,
21,
16,
-33,
43,
5,
-8,
35,
21,
-10,
-37,
-28,
12,
15,
-81,
-60,
-9,
-4,
-47,
-11,
-41,
-23,
15,
0,
34,
-32,
3,
9,
30,
4,
-28,
11,
-8,
-1,
19,
-9,
1,
7,
-20,
-13,
9,
-1,
-13,
3,
-1,
-23,
57,
24,
-39,
-24,
2,
5,
-18,
5,
15,
-2,
16,
-35,
13,
-27,
38,
-6,
0,
16,
-84,
-44,
-32,
7,
2,
33,
-25,
11,
50,
17,
-51,
-8,
20,
32,
50,
5,
10,
27,
-43,
1,
-60,
3,
-29,
36,
-15,
-42,
2,
-6,
50,
-47,
-33,
-18,
12,
29,
-17,
23,
-35,
11,
-25,
0,
18,
11,
7,
24,
64,
-6,
34,
13,
-17,
27,
2,
-10,
15,
-13,
-2,
10,
-10,
-22,
-66,
15,
75,
-14,
-19,
53,
-25,
-64,
-9,
24,
63,
12,
-29,
-15,
-15,
-31,
-22,
12,
6,
15,
12,
13,
20,
18,
8,
15,
-32,
-11,
-2,
20,
0,
-16,
-50,
0,
16,
-69,
2,
-50,
4,
-4,
-21,
6,
-13,
-12,
33,
-44,
4,
12,
-32,
-18,
6,
-37,
-54,
-33,
15,
21,
28,
11,
-24,
-46,
8,
11,
14,
14,
-9,
20,
36,
16,
6,
-8,
53,
-18,
-20,
-29,
3,
17,
14,
-15,
-26,
2,
6,
18,
-6,
-7,
-24,
20,
-3,
-33,
-49,
24,
-16,
-26,
11,
-33,
12,
-13,
12,
59,
-38,
-22,
-43,
-17,
35,
58,
43,
-25,
2,
-3,
30,
-28,
-1,
-30,
22,
4,
29,
47,
60,
-10,
27,
20,
27,
36,
73,
33,
3,
-4,
24,
-12,
7,
-3,
18,
22,
-21,
10,
15,
-2,
-35,
-42,
8,
35,
-16,
-28,
28,
21,
25,
-44,
6,
43,
-20,
67,
33,
-6,
-46,
4,
38,
2,
-62,
4,
55,
17,
-31,
-2,
-18,
0,
-11,
-41,
0,
-8,
3,
0,
-12,
-31,
15,
1,
15,
0,
-53,
-24,
11,
10,
1,
26,
-17,
21,
20,
75,
-48,
12,
-28,
52,
42,
-9,
27,
-4,
2,
-19,
24,
37,
-48,
-25,
-4,
-57,
-44,
46,
-6,
-14,
25,
-72,
-21,
-9,
-69,
62,
41,
-46,
14,
12,
14,
46,
12,
-6,
0,
19,
-17,
-20,
4,
-4,
-11,
23,
-3,
33,
-18,
-2,
20,
0,
-7,
24,
-21,
-33,
-2,
8,
-19,
-14,
-22,
3,
0,
-31,
-16,
-24,
25,
-13,
30,
-46,
-39,
0,
48,
15,
-7,
22,
16,
-48,
-27,
11,
-39,
18,
56,
-9,
-42,
49,
-32,
-2,
-24,
-12,
29,
14,
4,
12,
3,
-37,
4,
-20,
6,
-23,
-10,
31,
-6,
17,
-5,
-18,
39,
-43,
33,
4,
-9,
-44,
-22,
-49,
-5,
32,
-15,
-40,
10,
-8,
-22,
19,
-35,
21,
-33,
31,
3,
3,
27,
-37,
26,
-31,
-17,
4,
13,
3,
31,
6,
3,
35,
2,
28,
-16,
63,
-1,
-16,
-21,
33,
-20,
-6,
1,
-35,
14,
41,
41,
22
] |
Fead, J.
Defendant, by condemnation proceedings, acquired the whole of a certain lot for the purpose of opening and widening an avenue. It used only part of the lot for such purpose, leaving unused a five-foot strip between the street and plaintiffs’ property. It levied special paving and sidewalk taxes, itself paid the assessment on the five-foot strip and assessed plaintiffs as owners abutting the street. Plaintiffs brought this suit to set aside the assessment, restrain its collection, and for other relief appropriate thereto, and had decree.
The case is ruled by Panfil v. City of Detroit, 246 Mich. 149, and the decree is affirmed, with costs.
Clark, C. J., and McDonald, Potter, North, Wiest, and Butzel, JJ., concurred. Sharpe, J.', took no part in this decision. | [
-51,
38,
28,
-49,
-35,
-2,
16,
2,
-18,
5,
14,
-10,
42,
46,
-18,
-3,
-9,
-4,
-14,
24,
-64,
-24,
-23,
-5,
29,
-24,
15,
1,
33,
15,
22,
-9,
-37,
39,
-11,
19,
-13,
-2,
76,
13,
36,
2,
-53,
-43,
2,
-20,
34,
-40,
26,
-11,
-54,
-13,
-3,
-40,
-28,
-65,
-17,
-15,
-20,
16,
13,
12,
-35,
54,
-2,
0,
-11,
-7,
56,
-53,
-30,
-12,
-3,
5,
80,
-42,
19,
-4,
-11,
-26,
11,
-1,
20,
43,
7,
37,
-22,
-35,
-13,
-24,
-69,
-42,
31,
18,
-11,
44,
58,
-14,
-22,
-24,
17,
47,
-39,
16,
16,
-1,
-6,
-41,
24,
-43,
-4,
1,
3,
-2,
-7,
-25,
-14,
-3,
35,
-44,
-29,
-30,
-21,
-8,
-53,
-3,
-25,
-47,
-20,
-23,
47,
13,
-13,
60,
25,
51,
4,
7,
27,
60,
14,
-23,
1,
-18,
3,
17,
24,
-12,
36,
-41,
-36,
-1,
-10,
0,
21,
20,
23,
-4,
48,
-23,
20,
-71,
2,
14,
-23,
-1,
-35,
56,
16,
27,
35,
-24,
7,
-52,
-16,
-28,
-15,
58,
-23,
-21,
16,
-2,
34,
10,
-3,
-30,
-11,
-17,
11,
-41,
47,
-35,
-38,
-33,
-19,
32,
-1,
23,
-8,
-26,
-38,
-13,
-18,
-23,
11,
-13,
7,
14,
-5,
0,
9,
33,
-2,
-38,
28,
-12,
28,
1,
-8,
-30,
20,
-23,
-48,
-13,
-4,
14,
-3,
12,
38,
-9,
-31,
-5,
-9,
3,
-17,
-19,
-6,
49,
-49,
-1,
7,
83,
-11,
-10,
-18,
80,
19,
-17,
22,
-8,
7,
12,
-42,
-20,
-26,
-31,
0,
-7,
40,
24,
8,
68,
-3,
-32,
33,
43,
5,
-38,
-23,
8,
-33,
27,
-26,
-12,
6,
-57,
-53,
-8,
-4,
78,
-30,
-34,
-52,
30,
15,
63,
11,
22,
31,
15,
-14,
25,
-3,
-9,
14,
-5,
-3,
-13,
15,
19,
-60,
62,
-18,
53,
39,
-13,
29,
0,
57,
29,
28,
2,
-17,
17,
8,
-2,
24,
-38,
62,
10,
0,
28,
-29,
53,
-24,
-17,
37,
-6,
-18,
15,
23,
-8,
31,
-7,
-48,
12,
55,
-19,
-38,
-11,
-4,
19,
23,
-26,
72,
36,
-42,
-12,
9,
-12,
-39,
4,
-16,
-3,
-48,
-20,
26,
4,
-12,
54,
39,
10,
45,
-24,
-47,
13,
-13,
-24,
-11,
24,
-6,
-1,
-25,
54,
0,
-28,
40,
-43,
-46,
15,
4,
-15,
20,
36,
73,
-13,
17,
-18,
-10,
-30,
-26,
-4,
16,
11,
14,
-67,
19,
3,
-25,
33,
20,
24,
9,
31,
-68,
-25,
48,
47,
25,
22,
-10,
-15,
13,
-23,
-39,
41,
16,
-27,
-29,
34,
29,
-2,
-4,
-24,
-30,
-29,
18,
2,
-14,
1,
-46,
14,
-4,
-55,
50,
48,
-38,
-46,
-44,
-9,
-33,
1,
-27,
-16,
15,
-30,
-36,
38,
1,
17,
38,
37,
0,
29,
-28,
3,
4,
-33,
80,
-25,
0,
-8,
-16,
-57,
-48,
-25,
-36,
4,
-15,
8,
-48,
48,
1,
-23,
42,
-13,
-33,
0,
-33,
26,
14,
-26,
24,
36,
-17,
8,
-2,
-14,
-55,
15,
37,
11,
61,
18,
41,
-39,
1,
8,
16,
-15,
5,
13,
-23,
-7,
23,
-6,
14,
20,
11,
11,
-4,
-15,
2,
56,
10,
49,
-30,
-39,
43,
-21,
-23,
17,
-28,
0,
27,
14,
39,
26,
-11,
29,
19,
-18,
-52,
-22,
-35,
-16,
-12,
-2,
19,
-4,
-36,
10,
17,
-19,
6,
-2,
1,
5,
33,
10,
-20,
-36,
-15,
33,
-50,
-7,
9,
-60,
10,
7,
-37,
45,
-2,
-11,
54,
-30,
30,
-94,
-13,
0,
-48,
-23,
31,
-30,
-27,
0,
1,
-19,
-32,
-30,
-7,
14,
-33,
-2,
27,
49,
43,
7,
1,
-8,
18,
10,
-5,
-4,
-6,
7,
-3,
67,
26,
-30,
35,
-7,
-51,
-39,
-48,
-17,
-18,
-49,
8,
-22,
20,
-18,
-20,
32,
42,
89,
43,
-12,
88,
36,
11,
-13,
5,
2,
18,
-4,
-9,
-36,
-81,
26,
6,
-36,
16,
43,
21,
0,
57,
5,
16,
-20,
-37,
5,
-14,
21,
-18,
6,
-68,
-5,
15,
38,
-38,
64,
32,
-15,
1,
-19,
-46,
-41,
4,
-13,
19,
9,
-11,
9,
-9,
-28,
45,
-43,
35,
-15,
-5,
39,
32,
18,
16,
-22,
6,
11,
40,
36,
-30,
7,
-59,
41,
3,
-1,
11,
32,
34,
7,
17,
-12,
-20,
-63,
-13,
29,
11,
15,
1,
25,
-17,
41,
20,
1,
-35,
25,
1,
50,
3,
-44,
53,
-18,
-37,
43,
-6,
39,
-6,
5,
2,
1,
54,
-29,
-35,
-62,
63,
-52,
-6,
-3,
0,
62,
-4,
14,
18,
-5,
-29,
-9,
-24,
-4,
45,
-83,
9,
26,
-15,
-15,
-32,
-53,
29,
35,
-31,
33,
-9,
-7,
15,
7,
-23,
-42,
-33,
36,
-17,
-3,
-79,
-38,
-35,
3,
9,
-56,
5,
6,
3,
1,
-52,
10,
-34,
-25,
-33,
-2,
-24,
8,
29,
-17,
-46,
-17,
10,
22,
-13,
5,
10,
7,
38,
46,
-21,
-46,
-20,
9,
-11,
5,
-14,
8,
44,
-27,
5,
48,
1,
-14,
-8,
41,
-68,
49,
15,
4,
-7,
-51,
-38,
-7,
7,
-3,
19,
24,
-8,
-14,
-1,
11,
-10,
6,
-29,
-10,
-5,
-24,
44,
-8,
67,
-19,
-3,
72,
-43,
-20,
2,
17,
-7,
-27,
-15,
-53,
-34,
-4,
-4,
12,
-50,
25,
5,
21,
-39,
24,
7,
14,
5,
45,
31,
11,
-7,
56,
97,
20,
-37,
-10,
10,
2,
1,
-50,
48,
58,
32,
61,
37,
-11,
12,
10,
-38,
14,
-48,
-23,
22,
2,
-17,
-30,
-46,
-5,
37,
4,
-23,
50,
44,
-23,
-23,
5,
10,
-31,
-48,
-5,
48,
-39,
-7,
-32,
26,
2,
-20,
-12,
27,
36,
6,
-13,
-14,
-36,
4,
15,
-28,
-19,
-45,
-10,
-11,
23,
27,
62,
-52,
-29,
-54,
-38,
-24,
3,
-11,
22,
-5,
-38,
7,
10,
14,
-8,
42,
-28,
-32,
7,
8,
-33,
14,
7,
28,
11,
-14,
8,
50,
7,
11,
0,
39,
26,
-30,
20,
-53,
-41,
-8,
-14,
16,
20,
-8,
-35,
5,
-27,
30,
2,
4,
44,
-31,
-9,
24,
11,
42,
-43,
-53,
-14,
-42,
-43,
18,
-49,
41,
-10,
-55,
66,
35,
5,
-24,
-38,
24,
-1,
-10,
-30,
-16,
-2,
7,
57,
5,
-23,
-20,
58,
-18,
-8,
-27,
19,
42,
-28,
14,
2,
-71,
19,
-23,
51,
-1,
55,
-21,
66,
-32,
-28,
8,
-7,
-18,
37
] |
Potter, J.
Plaintiffs filed their bill of complaint against defendant to reform an insurance policy issued by defendant so as to show the true intent of the parties to cover the personal property contained in all the buildings on plaintiffs’ farm. From decree for defendant, plaintiffs appeal.
Plaintiffs owned and operated a large dairy farm in Livingston county, upon which were several farm buildings and considerable personal property. Desiring to insure the buildings and personal property on the farm, C. L. Wilson, one of plaintiffs, went to Howell and called on L. H. Crandall, with whom he was acquainted. Crandall went with Wilson to see Borden, secretary of defendant company, where the question of insurance was discussed with Borden. Plaintiffs wanted insurance upon the buildings and personal property on the farm; full coverage; and desired to have Borden visit the property and issue a policy sufficient to protect them. Borden thought defendant might be able to insure all the property except the large dairy barn upon the premises. Borden suggested he get in touch with another insurance company in Lansing, of which he was an agent, and see if it would handle the large building and contents. He got the other company to carry the building, and defendant insured the smaller buildings and contents and the personal property. The real dispute here is over the con tents of the large barn. Plaintiff Charles L. Wilson says Borden wanted to carry all the smaller buildings and all the contents and have the other insurance company carry the big barn. Borden suggested splitting the insurance between the two companies. Plaintiff Charles L. Wilson talked with no one except Borden. The matter of procuring insurance in accordance with the agreement between Charles L. Wilson and Borden was left to Borden, who procured the issuance of two insurance policies which he delivered to plaintiffs. After the verbal application for insurance was made by Charles L. Wilson to Borden, Borden and a Mr. Moore went over the property to be insured, through the large dairy barn, and Borden said he could not carry the big barn, but defendant would like to carry its contents. George J. MaDan, connected with the Harvest Mutual Insurance Company which wrote the policy on the big barn, was told by Borden his directors had agreed to take care of the personal property if MaDan’s company would write a policy covering the buildings. It was talked over between Borden and MaDan that Borden’s company, defendant, was to carry the personal property and MaDan’s company was to carry the big barn. The only property discussed between Borden and MaDan was the big barn and contents. Mr. Crandall went with Borden and Charles L. Wilson to the farm to look over the property to be insured. He testified:
“Mr. Borden stated that he could carry the smaller buildings pr the buildings that were adjacent to this larger risk, and-the personal property, but he would be unable to carry the other. It was left he would insure what he could carry and what he couldn’t would be carried in the Lansing company. ’ ’
Defendant’s secretary, Borden, admits Wilson came in to get insurance covering all the insurable property on the farm. Wilson wanted defendant to insure all the property because it was a local insurance company and plaintiffs were owners of a large farm in Livingston county. It was Borden’s suggestion defendant could not carry the insurance on the big barn. It was Borden’s suggestion he get some other company to carry the insurance on the big barn and defendant would carry insurance on the smaller buildings and contents. Borden handled the entire matter of insurance and intended to insure the personal property in question; and, until a loss occurred, and the question arose, he thought he had done as he intended to do. He testified:
“Q. I am asking you, did you or would you do with any business man when he came to you to get coverage of insurance, would you deliver these policies to him without knowing whether he got it or not? That is what I am getting at.
“A. I evidently did.
“Q. At that time you thought he was protected and covered?
“A. Yes, sir, I thought he was.
“Q.' You thought so up to the time this controversy arose?
“A. Yes, sir.
“Q. That is what you took his money for?
“A. Yes, sir.”
The policy provides ‘ ‘ on personal property in said buildings or in sacks or stacks on said premises $10,000. Personal property also insured in buildings and on premises owned and insured by Enoch H. Henry, section No. 8, township of Howell.” The sentence, or part of a sentence, “Personal property also insured in buildings and on premises owned and insured by Enoch H. Henry, section No. 8, township of Howell,” is written in by typewriter. No amount of insurance is placed opposite that sentence or part of sentence. Borden admits the $10,000 item on personal property /was intended to be a blanket item covering all personal property on the premises insured. The policy, by its terms, covers personal property in the buildings, only, insured by defendant. The typewritten part of the policy covers personal property not in the buildings insured by the policy. The personal property in the big barn was not covered by-the precise language of the policy. It was intended both by Wilson and Borden to have been covered. The fact it was not covered was a mistake upon the part of both parties. Plaintiffs have sustained the burden of proof up op the proposition of establishing a mutual mistake, and are entitled to relief unless barred by some legal defense.
Borden, secretary of defendant, - was its agent. The powers of an agent are prima facie coextensive with the business intrusted to his care. Union Mutual Life Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222; Tubbs v. Dwelling-House Ins. Co., 84 Mich. 646. He was authorized to receive applications for insurance in defendant, write and issue policies therein, deliver the same, and collect the premium therefor. Application was made for insurance on all the insurable property on the farm. He visited the farm and examined the property. He told plaintiffs defendant could not carry the policy on the big barn. He suggested that he procure coverage of the barn by another company. He was agent of that company. Nothing was concealed from him. . There is no claim of over insurance. He assumed to handle the placing of the insurance desired. Without the coverage claimed on the contents of the big barn, there is no reasonable explanation of the item of $10,000 on personal property. He prepared the policy of defendant. He delivered both policies to plaintiffs. He intended to cover the property in controversy by defendant’s policy. Plaintiffs supposed the policies delivered covered it. Borden charged for and collected the premium on the coverage. If either plaintiffs or defendant had not believed defendant’s policy covered the property in controversy, plaintiffs could have procured coverage elsewhere.
As said in Ætna L. S., F. & T. Ins. Co. v. Olmstead, 21 Mich. 246 (4 Am. Rep. 483):
“If the application is not in due form, and if it fails to give all the information called for, it must be either because the agent was too ignorant of the business to be properly intrusted with the agency, or because he was so negligent or reckless that he did not trouble himself to draft them correctly, or lastly, because he was disposed to take Olmstead’s money on the fraudulent pretense of giving him indemnity ydien te knew he was giving none whatever.
“The.general rule undoubtedly is, that in the absence of fraud, accident or mistake, a party must be conclusively presumed to understand the force of his contracts, and to be bound by their terms, But it cannot be tolerated that one party shall draft the contract for the other, and receive the consideration, and then repudiate his obligation on the ground that he had induced the other party to sign an untrue representation which was, by the very terms of the contract, to render it void. Still less can this be allowed when the representation itself is so ambiguously worded as to be well calculated to conceal its real meaning, • and to deceive the party signing it.”
The principles above stated have been repeatedly approved. Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Michigan Mutual Life Ins. Co. v. Reed, 84 Mich. 524 (13 L. R. A. 349); Tubbs v. Dwelling-House Ins. Co., supra; Beebe v. Ohio Farmers’ Ins. Co., 93 Mich. 514 (18 L. R. A. 481, 32 Am. St. Rep. 519). It is contended the charter and by-laws of defendant, a mutual fire insurance company, are a part of the contract of insurance and Borden, defendant’s secretary, could not waive any of their provisions: Becker v. Farmers’ Mutual Fire Ins. Co., 48 Mich. 610; Kamm & Schellinger Brewing Co. v. St. Joseph County Village Ins. Co., 168 Mich. 606; Leonard v. Farmers’ Mutual Fire Ins. Co., 192 Mich. 230. This is the general rule.
Belief in cases of this kind is based upon other grounds:
‘ ‘ The insurance. business of the world is done through agents almost exclusively, and the maxim qui facit per alium facit per se applies with special force to their acts. These agents assume to have, and generally do have, much more intimate knowledge of the business than those with whom they deal. They may also be fairly presumed to understand the requirements of their principals, and how properly and legally to fill up the blank applications and other papers with which their principals intrust them. The community in general do not assume to be familiar with these matters, and would not venture in any case to set up their own view (‡ what was or was not the proper form of an application, against the positive assertion of an expert. The forms and requirements of different insurers are different, and when an agent, who at the time and place is the sole representative of the principal, assumes to know what information the principal requires, and after being furnished with all the facts, drafts a paper which he declares satisfactory, induces the'other party to sign it, receives and retains the premium moneys, and then delivers a contract which the other party is led to believe, and has a right to believe, gives him the indemnity for which he paid his money, we do not think the insurer can be heard in repudiation of the indemnity on the ground of his agent’s unskillfulness, carelessness or fraud. If this can be done it is easy to see that community is at the mercy of these insurance agents, who will have little difficulty in a large proportion of the cases, in giving a worthless policy for the money they receive.” Ætna L. S., F. & T. Ins. Co. v. Olmstead, supra.
In Westchester Fire Insurance Co. v. Earle, supra, 151, it is said:
“It has been more than once held by this court, that where an agent in giving a policy has, by his own conduct, misled parties into making applications or accepting conditions under a misapprehension as to their literal accuracy, the company is estopped by his action.”
In Beebe v. Ohio Farmers’ Ins. Co., supra, 522, 523, the court considered the applicability of a bylaw prohibiting any waiver by an agent of an insurance company. It is said:
“The agent had the right, under the policy, to grant permission to place other chattel mortgages upon the property, but was required to write such permission upon the policy. He granted the permission, took an active part in procuring the money upon the mortgages, advised in regard to it, and assured the plaintiff that she was protected, though he did not enter in writing upon the policy the permission to do so. With the power vested in him by the company to issue policies, we think it would be a gross fraud upon the insured to hold that this condition was not waived by tbe consent of tbe company. ’ ’
Itiis claimed that Borden had no power and authority to write or issue a policy of insurance in defendant as claimed by plaintiffs, and plaintiffs, by accepting the policy applied for, are estopped from claiming otherwise.
“The company sought to protect itself from unauthorized acts of its agents by virtually declaring in what respect their powers were limited, and giving the plaintiff full notice thereof in the policy. He is estopped by accepting the policy from setting up in this case powers in the agent at that'time in opposition to the limitation of the conditions.” Catoir v. American Life Ins. & Trust Co., 33 N. J. Law, 487.
“When the policy itself contains an express limitation. upon the power of agents, an agent has no legal right to contract as agent of the company, with the party to whom the policy has been issued so as to change the terms of the policy or dispense with the performance of any part of the consideration, either by parol or in writing; and such party is estopped, by accepting the policy, from setting up powers in the agent, at the time, in opposition to limitations and conditions in the policy.” Merserau v. Phœnix Mutual Life Ins. Co., 66 N. Y. 274.
The rule of the cases last above quoted was expressly approved in Cleaver v. Traders’ Ins. Co., 65 Mich. 527 (8 Am. St. Rep. 908), where it is said:
“When the policy of insurance, as in this case, contains an express limitation upon the power of the agent, such agent has no legal right to contract as agent of the company with the insured, so as to change the conditions of the policy, so as to dispense with the performance of any essential requisite contained therein, either by parol or writing; and the holder of the policy is estopped, by accepting the policy from setting up or relying upon powers in the agent in opposition to the limitations and restrictions in the policy.”
Defendant insured plaintiffs “according to the tenor, terms and conditions of the charter and bylaws. ’ ’ The charter provides for insurance on ‘ ‘ contents of said buildings” and specific personal prop-' erty “being upon the premises of the insured and belonging to members.” The secretary is to “countersign and issue all policies in conformity with the charter and by-laws. * * * On acceptance and approval of such proposal for insurance a policy of insurance shall be issued. * * * All propositions' or agreements for insurance shall be subject to the approval or rejection by the president or secretary. ” The by-laws provide: “A single policy of insurance shall not cover personal property on premises other than those described in said policy.” The policy is fairly open to the construction that the $10,000 item on personal property covered the personal property on the Henry farm.
No doubt the proposition to insure this personal property was approved by the secretary. The policy makes propositions for insurance subject to the approval or rejection by defendant’s secretary. Personal property not in the buildings insured by the policy issued to plaintiffs was covered by the terms of the policy in question. Other personal property was intended to be covered. Plaintiffs paid and defendant received the insurance premium on such insurance. We think plaintiffs entitled to the relief prayed.
Reversed, with costs, and decree will be entered for plaintiffs.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
15,
-13,
67,
-10,
-6,
-9,
17,
-9,
-11,
-5,
3,
-14,
20,
42,
-23,
-19,
-8,
-74,
3,
21,
-32,
0,
-51,
37,
-25,
-43,
4,
-30,
-56,
19,
0,
37,
-34,
21,
-35,
-18,
43,
-4,
-53,
52,
-9,
-49,
50,
-47,
12,
-7,
37,
-5,
26,
31,
19,
-24,
-2,
6,
-40,
-64,
3,
63,
-14,
-36,
-24,
-31,
3,
-18,
35,
14,
16,
30,
-17,
-66,
8,
33,
-10,
-19,
63,
-3,
43,
-59,
-31,
-25,
-26,
-3,
49,
-51,
-69,
43,
0,
-16,
0,
7,
-62,
-4,
-53,
-4,
34,
7,
-13,
64,
0,
33,
-15,
-11,
-48,
10,
-48,
63,
0,
0,
-31,
13,
0,
-19,
33,
0,
11,
-25,
16,
12,
-6,
8,
-20,
1,
29,
-73,
-20,
10,
-19,
-24,
-20,
5,
23,
29,
-25,
15,
-12,
-15,
29,
-52,
-10,
-54,
11,
8,
-23,
-29,
-53,
10,
-70,
-49,
-13,
27,
3,
40,
-11,
19,
-1,
-22,
-20,
-37,
31,
-9,
-10,
-24,
-22,
27,
-25,
-5,
9,
6,
-1,
8,
-9,
-31,
9,
10,
3,
9,
38,
-6,
-63,
44,
-11,
-26,
-16,
7,
-22,
-63,
1,
39,
-69,
26,
82,
-57,
-46,
14,
-16,
25,
19,
-2,
13,
-22,
14,
-35,
22,
-23,
4,
-11,
17,
-23,
-23,
-34,
-15,
15,
-54,
3,
-3,
41,
1,
-21,
8,
-17,
2,
20,
-43,
4,
-40,
-50,
-15,
-44,
21,
-48,
-14,
-19,
38,
57,
-26,
6,
14,
-26,
-14,
82,
-6,
12,
-9,
-58,
20,
42,
-40,
20,
51,
16,
18,
-2,
-2,
17,
12,
0,
-21,
-3,
-38,
-20,
3,
-11,
-16,
24,
91,
-17,
-27,
1,
20,
76,
20,
-34,
-7,
16,
-31,
-52,
8,
10,
-1,
-43,
24,
5,
-18,
28,
19,
-3,
47,
32,
-54,
-63,
18,
-15,
17,
-15,
13,
27,
2,
-15,
1,
-21,
-15,
44,
-26,
-56,
21,
5,
-57,
-74,
-6,
-5,
-11,
23,
-27,
-68,
6,
-14,
12,
26,
-25,
-28,
10,
17,
-12,
57,
-28,
-8,
26,
-39,
21,
57,
-30,
-17,
41,
18,
-21,
-25,
27,
7,
52,
-13,
48,
52,
26,
2,
-30,
17,
20,
24,
-14,
-4,
-23,
-7,
-19,
2,
-2,
-5,
45,
33,
-68,
11,
28,
54,
-22,
-10,
-27,
-18,
-18,
-26,
14,
18,
1,
-20,
30,
9,
11,
12,
-1,
85,
-38,
12,
70,
-32,
6,
4,
19,
13,
-19,
0,
-4,
45,
-17,
-36,
41,
47,
9,
-28,
1,
-4,
-32,
34,
39,
30,
-47,
31,
-51,
37,
-7,
-64,
-31,
-21,
-30,
-34,
12,
37,
-18,
48,
15,
-24,
23,
10,
13,
28,
13,
-35,
45,
-42,
45,
-30,
2,
10,
-13,
-6,
-26,
14,
32,
1,
-20,
-68,
0,
3,
-18,
28,
-34,
47,
-17,
1,
-35,
7,
34,
-34,
12,
11,
-35,
-11,
-65,
23,
34,
35,
16,
-56,
39,
2,
-19,
-35,
35,
11,
-2,
7,
40,
6,
0,
-28,
8,
-17,
2,
-6,
-1,
-42,
-27,
31,
10,
23,
-14,
42,
1,
-86,
-8,
47,
-6,
6,
39,
-24,
-36,
0,
0,
46,
-8,
-17,
-4,
-33,
-1,
22,
45,
-17,
43,
39,
9,
2,
18,
67,
10,
-71,
7,
5,
21,
28,
1,
4,
8,
-42,
4,
-35,
0,
-16,
48,
-1,
50,
5,
60,
17,
46,
25,
-37,
-39,
-26,
-10,
2,
54,
6,
-28,
0,
23,
39,
-1,
-28,
-21,
4,
-12,
20,
-69,
29,
-42,
29,
5,
22,
39,
8,
-12,
11,
21,
29,
-11,
1,
9,
37,
-30,
20,
33,
10,
-17,
-32,
-32,
52,
-4,
-5,
20,
-56,
-8,
5,
34,
-47,
-32,
-18,
-30,
-8,
4,
3,
-3,
-25,
-18,
0,
-10,
-29,
7,
27,
-29,
6,
-28,
13,
12,
-47,
-40,
-26,
4,
10,
16,
-43,
16,
-9,
-12,
-5,
-20,
-2,
1,
36,
13,
19,
-25,
47,
-22,
2,
-39,
24,
27,
25,
-20,
9,
38,
28,
28,
1,
-53,
17,
-4,
0,
-10,
19,
99,
-12,
19,
-49,
-8,
11,
-17,
-65,
6,
0,
-7,
-16,
-59,
-43,
46,
38,
4,
-38,
-30,
6,
-1,
-53,
5,
35,
-36,
-29,
15,
-19,
-23,
81,
-32,
4,
41,
46,
-23,
4,
51,
38,
-9,
9,
51,
-2,
62,
13,
-7,
-3,
46,
46,
14,
35,
-3,
-4,
-25,
19,
-40,
7,
13,
-14,
-46,
14,
-14,
-30,
-14,
37,
26,
27,
-34,
-8,
23,
-2,
-46,
2,
-15,
43,
-9,
16,
-37,
9,
28,
-22,
25,
26,
-30,
7,
-14,
54,
-5,
-8,
23,
57,
6,
51,
34,
-17,
24,
-17,
15,
-10,
26,
21,
11,
15,
-44,
-16,
2,
26,
0,
-2,
6,
-42,
-32,
29,
13,
2,
41,
-18,
-21,
-32,
-35,
-24,
-12,
-14,
-14,
30,
-11,
0,
8,
-32,
-27,
26,
-13,
-13,
-26,
-37,
64,
-36,
-24,
21,
-17,
20,
-37,
0,
-25,
-24,
7,
11,
-81,
0,
27,
68,
-51,
30,
-6,
-48,
24,
-5,
-52,
-48,
19,
47,
17,
21,
-15,
21,
21,
-5,
53,
0,
-21,
-6,
52,
-15,
32,
-15,
20,
9,
-55,
-47,
9,
-40,
14,
-50,
43,
-80,
39,
52,
33,
9,
-23,
-21,
-10,
-22,
-34,
1,
-13,
-21,
24,
46,
0,
30,
5,
-44,
14,
37,
-25,
3,
37,
13,
-17,
35,
-11,
-14,
-16,
-24,
-24,
22,
19,
8,
-25,
0,
-45,
-19,
21,
10,
-29,
-18,
41,
7,
-9,
13,
-17,
-46,
18,
-23,
10,
-8,
-37,
60,
5,
-33,
-46,
36,
5,
-39,
-35,
-22,
7,
-38,
15,
51,
-16,
-22,
18,
42,
0,
-28,
30,
6,
-7,
10,
-3,
42,
-56,
-14,
-11,
12,
32,
-11,
30,
-11,
28,
-2,
2,
14,
-43,
-9,
-17,
-30,
37,
4,
-13,
-11,
24,
3,
-29,
17,
33,
-18,
-11,
-3,
24,
48,
46,
23,
-22,
-16,
-1,
-15,
-48,
22,
-45,
-24,
35,
38,
-2,
-10,
-18,
12,
-9,
25,
-41,
-5,
42,
2,
-8,
5,
45,
14,
-17,
-48,
3,
31,
22,
-48,
28,
-21,
-9,
-4,
-62,
5,
49,
-17,
-31,
15,
-24,
12,
-11,
0,
-8,
41,
15,
25,
13,
2,
-41,
-31,
63,
-14,
44,
-40,
-4,
-69,
7,
-11,
80,
42,
30,
21,
-2,
-60,
50,
-34,
22,
-11,
12,
59,
63,
-1,
-14,
19,
0,
27,
-14,
-36,
48,
21,
-17,
-6,
20,
-8,
0,
-24,
-100,
7,
48,
-8,
52
] |
Fead, J.
September 15, 1922, Benjamin London and wife executed to plaintiff a construction mortgage for $120,000, to erect a 39-apartment building. Following tbe description of the land was:
“Together with any and all buildings, improvements and appurtenances now standing, or at any time hereafter constructed or placed upon said lands, or any part thereof including all screens, curtains, fixtures, window shades, ice-boxes, ranges, furnaces, vacuum cleaners, refrigerators, heating, plumbing, ventilating, gas and electric light fixtures, elevators and fittings and machinery, apparatus and fittings and fixtures and machinery of every kind in, or that shall be placed in any building now or here- . after standing on said property or any part thereof.”
The instrument was recorded as a real estate mortgage but was not filed as a chattel mortgage. On January 22, 1929, the property was purchased by plaintiff on foreclosure sale by advertisement. A few days after the period of redemption expired, Benjamin London sold all the personal property in the building to his brother, Julius, who, according to the testimony, bought for value and without notice of the mortgage.
The controversy is between plaintiff and Julius . London. The question is whether the gas stoves, Murphy wall beds, radiator shields, ice-boxes, and iceless refrigerator equipment in the building ar.e real fixtures belonging to plaintiff or chattels belonging to' Julius London.. The court held them fixtures and plaintiff had decree enjoining' their removal.
All the articles are attached to the building, but may be easily removed without damage to it. The radiator shields received scant attention from counsel and are apparently of little consequence. Originally, the ice-boxes were movable, on casters, but in 1927 the iceless refrigeration system was installed, with power plant in the basement, copper tubing leading to the apartments and the necessary equipment put in the ice-boxes.
The articles meet two of the three general tests of fixtures, as stated in 11 R. C. L. p. 1059, and approved in Morris v. Alexander, 208 Mich. 387, and Peninsular Stove Co. v. Young, 247 Mich. 580, in that (1) they are annexed to the freehold, and (2) they are adapted to the uses and purposes of the building. The essential inquiry is whether they meet the third test — intention of the parties to make them permanent accessions to the freehold.
By the terms of the mortgage, the articles are “included” in the buildings, improvements, and appurtenances. The instrument was executed as a real estate mortgage, and contains no affidavit of bona fide consideration or other language indicating that the parties deemed it to cover or describe chattels. In a statement to obtain money from plaintiff on the loan, in which Benjamin London represented that he had let contracts to complete the building and listed the materials and labor contracted, he included gas fixtures, wall beds, gas ranges, and refrigerators. All the rest of the list covered purely building construction items and no item of personal property. The statement, therefore, indicates that the articles so listed were treated by him, with understanding of plaintiff, as part of the building, in conformity with the description in the mortgage. It was also shown by oral testimony that the pro viding of such conveniences in apartments was a very desirable, and rapidly becoming necessary, item in the successful operation of apartment buildings. On the other hand, testimony was offered that Benjamin London told his brother he was installing the equipment as sort of an experiment and if it did not pay he would remove it.
Benjamin did not testify. Counsel recognize that his secret intention was immaterial. As the articles could be either -fixtures or personalty, the joint intention or agreement of himself and plaintiff is the essential inquiry. It seems obvious that they intended the articles named to be integral and permanent accessions to the building.
The mortgage covered after-placed fixtures. The iceless refrigeration system was in the character of, for the same purpose as, aild was in fact merely an improvement of, the ice-box system. It physically attached the ice-boxes to the freehold. And the evidence does not show that the parties intended it to have a different status than the ice-box system, which they had agreed was part of the building.
London purchased the iceless refrigeration system on title-retaining contract, and it is claimed that it remained a chattel because of want of unity of title of the system and the real estate. The contention would be good were the vendor seeking to reclaim the equipment. Schellenberg v. Detroit Heating & Lighting Co., 130 Mich. 439 (57 L. R. A. 632, 97 Am. St. Rep. 489); Woodliff v. Citizens Building & Realty Co., 240 Mich. 413. As between the mortgagor and mortgagee, the agreement of parties was that the equipment should be subject to the mortgage as part of the real estate and the mortgagor, or his assignee, cannot avoid the lien by showing title in another. It is a sensible rule that, as be tween the contracting parties, an article may be attached to the freehold as a fixture, although it be purchased on conditional sales contract, and, as to the vendor therein, may remain a chattel. 41 A. L. R. 615, note; Grubbs v. Hawes, 173 Ala. 383 (56 South. 227); In re Erie Lithograph Co., 260 Fed. 490.
We think the articles in dispute were fixtures and passed with the real estate. The other questions raised need no discussion.
Decree affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
4,
23,
27,
-16,
-68,
-18,
10,
46,
37,
4,
-25,
17,
39,
-9,
-13,
14,
-33,
-21,
-43,
17,
17,
-21,
-43,
-13,
7,
23,
15,
-24,
-15,
64,
68,
-9,
-8,
-5,
-43,
29,
-16,
37,
41,
-37,
27,
1,
-30,
14,
8,
47,
-12,
-33,
8,
-15,
15,
20,
67,
-11,
-1,
-44,
-61,
94,
-27,
46,
41,
-21,
6,
111,
40,
36,
58,
2,
-2,
26,
21,
-12,
5,
-50,
54,
6,
-41,
15,
-6,
-47,
18,
8,
36,
-23,
-13,
-22,
-35,
21,
-16,
-4,
-38,
1,
21,
41,
-16,
2,
1,
0,
23,
-2,
-20,
-3,
-32,
29,
22,
20,
-8,
-19,
2,
-13,
-47,
1,
9,
47,
-3,
16,
23,
2,
0,
4,
1,
13,
-25,
-75,
-41,
36,
-38,
-54,
6,
-10,
-83,
44,
-43,
26,
-47,
-12,
34,
41,
-37,
6,
3,
6,
-15,
-36,
8,
15,
45,
-27,
-27,
5,
-6,
6,
-4,
-13,
34,
12,
7,
-9,
1,
-3,
-9,
-36,
-5,
-52,
3,
-18,
-20,
-3,
33,
5,
3,
23,
-26,
-61,
16,
1,
-39,
-25,
-57,
-30,
12,
-2,
52,
7,
34,
-34,
-63,
11,
0,
4,
61,
-7,
-39,
-14,
-64,
24,
-35,
44,
38,
-51,
18,
51,
-39,
-99,
31,
16,
30,
28,
-9,
19,
-39,
42,
-58,
-45,
-12,
-3,
-33,
-2,
-6,
30,
18,
-32,
-30,
67,
-39,
-3,
-2,
24,
49,
-19,
-101,
56,
-3,
-4,
-4,
-26,
-31,
38,
6,
57,
21,
28,
-43,
5,
-34,
-4,
-38,
11,
-20,
-13,
-22,
-31,
-31,
38,
4,
-3,
-13,
43,
-8,
4,
21,
34,
-6,
-24,
58,
17,
32,
-69,
12,
111,
-60,
-10,
7,
42,
-41,
-13,
-27,
-12,
14,
7,
14,
-26,
5,
18,
4,
16,
22,
2,
-22,
-16,
-1,
-17,
-11,
-33,
25,
18,
-2,
-11,
-2,
-28,
-49,
8,
49,
-28,
-4,
6,
29,
22,
-17,
4,
-5,
-36,
-52,
19,
21,
-40,
23,
19,
-2,
-35,
52,
-13,
-7,
-46,
22,
-44,
-11,
-59,
0,
40,
-2,
-56,
-41,
20,
-47,
21,
60,
-16,
17,
2,
-22,
40,
9,
-70,
-1,
38,
19,
-15,
-41,
-26,
-18,
0,
-20,
45,
-12,
9,
-1,
85,
17,
31,
54,
-12,
-14,
-14,
-53,
-42,
0,
-37,
-37,
31,
36,
-5,
-57,
-2,
24,
40,
-80,
31,
2,
9,
-2,
-35,
17,
4,
-10,
-17,
3,
-36,
0,
14,
-8,
-7,
-18,
24,
18,
-52,
-21,
-18,
-23,
-38,
55,
41,
-49,
-26,
-32,
21,
43,
-4,
-2,
28,
-24,
-16,
21,
-31,
-41,
5,
-35,
-25,
50,
26,
-40,
46,
11,
23,
-17,
-27,
45,
-14,
-31,
8,
-43,
23,
-27,
12,
30,
8,
-35,
-42,
-43,
-10,
-18,
20,
-27,
27,
14,
24,
-8,
31,
59,
3,
-11,
39,
1,
0,
7,
-49,
24,
-44,
57,
-18,
5,
10,
11,
-47,
-29,
-18,
-28,
-22,
-49,
10,
-16,
2,
-8,
-10,
-5,
15,
-11,
8,
-30,
-28,
-7,
1,
36,
37,
-36,
-20,
-76,
-7,
-17,
30,
1,
2,
12,
-25,
-27,
3,
11,
-21,
0,
-9,
-22,
-12,
16,
25,
68,
27,
-62,
-11,
41,
18,
3,
-23,
-21,
34,
2,
-23,
33,
-18,
15,
-3,
6,
26,
-9,
-6,
-7,
0,
57,
18,
30,
4,
29,
-15,
-3,
41,
-15,
-36,
54,
6,
24,
-22,
12,
55,
-2,
30,
-19,
9,
-12,
-22,
-70,
-11,
25,
-35,
-29,
24,
-21,
-48,
-6,
-5,
-44,
40,
-80,
52,
36,
-19,
4,
-17,
18,
-52,
15,
-26,
-41,
8,
-3,
-11,
-35,
-5,
-57,
-33,
-15,
20,
-43,
5,
22,
1,
-13,
76,
-44,
24,
-15,
-3,
-42,
-18,
0,
8,
50,
-24,
-46,
54,
-17,
-10,
-2,
-12,
12,
-60,
-33,
-4,
-41,
46,
-7,
10,
35,
-25,
-7,
-10,
-9,
36,
50,
5,
6,
24,
14,
2,
-19,
0,
-14,
-6,
13,
22,
-46,
54,
-48,
41,
7,
0,
86,
-28,
21,
-36,
-17,
-40,
-28,
-15,
-51,
-21,
-77,
31,
-15,
-17,
12,
25,
-21,
-37,
10,
56,
48,
-20,
18,
-14,
22,
2,
-1,
-82,
18,
32,
64,
-24,
46,
-6,
-24,
-28,
-9,
-2,
15,
56,
-9,
34,
-12,
-5,
41,
23,
-13,
-2,
-52,
42,
45,
0,
47,
-47,
29,
-37,
-36,
-19,
57,
-54,
37,
28,
-16,
-32,
24,
33,
17,
-43,
45,
29,
-51,
19,
-5,
-17,
-7,
11,
34,
16,
56,
3,
34,
33,
25,
20,
-38,
-23,
11,
-50,
17,
1,
19,
-6,
-19,
77,
-36,
25,
0,
-36,
-27,
-6,
-10,
43,
15,
-24,
44,
-6,
-18,
2,
45,
33,
-4,
-43,
15,
21,
25,
6,
-14,
14,
-21,
18,
-6,
-53,
0,
-36,
-25,
-17,
-7,
6,
3,
20,
28,
37,
33,
-14,
-11,
-71,
-16,
9,
-31,
-14,
32,
53,
-55,
-24,
53,
-40,
-10,
-37,
27,
-20,
-5,
-7,
28,
0,
67,
14,
-40,
0,
47,
-12,
-66,
-15,
-2,
-20,
-32,
-23,
-22,
13,
-2,
4,
21,
-15,
-19,
34,
13,
-32,
5,
-49,
4,
-49,
9,
-15,
17,
34,
1,
-1,
-15,
31,
-36,
16,
43,
-10,
-20,
-12,
-15,
0,
18,
-28,
27,
75,
37,
-40,
-15,
50,
-3,
-26,
3,
-14,
-11,
61,
3,
-18,
-9,
33,
4,
45,
-7,
23,
23,
25,
22,
7,
17,
27,
-6,
-1,
20,
-10,
22,
19,
4,
-26,
-24,
44,
-24,
36,
29,
12,
40,
-44,
32,
14,
-25,
9,
9,
4,
-2,
-16,
-14,
-23,
42,
55,
3,
-9,
-21,
28,
-3,
0,
-65,
-11,
-7,
2,
56,
-40,
33,
-33,
-45,
-59,
-43,
21,
-48,
-19,
27,
10,
11,
-53,
45,
-9,
-52,
12,
20,
6,
19,
-21,
-11,
29,
-4,
-53,
-36,
9,
12,
24,
0,
11,
6,
102,
50,
23,
12,
46,
23,
-24,
0,
-7,
-47,
-37,
17,
-31,
60,
8,
-38,
48,
19,
-67,
16,
-42,
-26,
65,
-13,
1,
-59,
-17,
-27,
-7,
-53,
3,
0,
10,
17,
-40,
35,
1,
58,
9,
-45,
-61,
2,
-25,
35,
-30,
16,
-11,
5,
12,
7,
7,
28,
8,
13,
12,
11,
-35,
29,
-69,
5,
-20,
28,
-29,
-5,
0,
5,
-30,
67,
-1,
10,
-16,
21,
5,
28,
-1,
-17,
56,
-6,
2,
19,
-55,
-62,
-49,
49,
56,
-74,
51,
-29,
46,
40,
-32,
39,
-32,
4,
22
] |
Clark, C. J.
Plaintiff, averring its sole right as owner of lands fronting on Lake Superior to take gravel from the lake and within one mile from shore of such lands, and that defendants had taken gravel from such portion of the lake wrongfully, sued for the value thereof. The case is planted on 2 Comp. Laws 1929, §§ 5981 and 5982, quoting:
“5Q81. Removal of earth from bed of Great Lakes; exclusive right in owners and lessees fronting lakes Superior and Michigan; mode; special clause in lease; valuation of removable material, period; removal of obstructions; application of act, extent. Sec. 27. The owners and lessees from the State of lands fronting upon Lakes Superior and Michigan, and the bays and harbors connected with said lakes, shall have the exclusive right and privilege of taking and removing marl, stone, sand, gravel and earth from the bed of any of the Great Lakes, and the bays and harbors connected with said lakes, adjoining and lying immediately in front of their respective lands, and extending one mile from the low water mark of said lakes, bays and harbors. And for the purpose of removing such marl, rock, stone, sand, gravel and earth, any owner or lessee from the State shall have the right to anchor, by piling or otherwise’, dredges, scows, boats and vessels and shall have the right to make excavations in the bed of the Great Lakes, and the bays and harbors connected with said lakes, fronting such owner’s and lessee’s land and within one mile from the beach or shore at low water mark: Provided, That the right and privilege of taking and removing marl, stone, rock, sand and earth, shall not accrue to nor be exercised by any person or persons, firm or corporation unless the same is included in a lease of such lands or made the subject of a special clause of a lease, application for which shall be made in the saíne manner as provided herein with respect to leases for other purposes. The said public domain commission is hereby authorized and empowered and it is hereby made its duty to evaluate the marl, rock, stone, sand, gravel and earth so proposed to be taken and removed, and to enter into agreements in such leases for periods not exceeding ten years with respect thereto and grant to such applicants, as lessees, the right and privilege of taking and removing such marl, stone, rock, sand, gravel and earth, excepting deposits of gold, silver, iron, copper and other valuable minerals, upon such conditions and for such consideration as may be deemed fair and reasonable by said public domain commission, based upon the valuation made, not inconsistent with the other provisions of this act. Any special clause in a lease relating to the removal of marl, rock, stone, sand, gravel and earth, shall be considered and deemed a separate agreement, which shall expire by limitation at the determination of the period provided for therein, independent of the other terms of such lease: Provided, That nothing herein contained shall be construed to prevent the removal of obstructions and deposits at the mouths of the several rivers and harbors of the State for the purpose of maintaining and improving navigation: and provided further, That the provisions of this act shall not apply to owners and lessees of such lands fronting upon Lakes St. Clair, Huron and Erie, at a greater distance than five hundred feet from the shore line of such lands at low water mark, and the public domain commission shall not by lease, grant or otherwise purport to extend to any owner or lessee of such lands, the ownership, use or control of the bed of said lake beyond a distance of five hundred feet from the shore line thereof at low water mark.
“5982. Same; paramount public rights; unlawful without consent; civil liability, penalty. Seo. 28. The rights of such owners and lessees under section twenty-seven of this act shall be subject to the para mount rights of navigation, hunting and fishing, which rights are to remain in the general public and government as now existing and recognized by law. It shall be unlawful for any person to remove marl, rock, stone, sand, gravel and earth from the bed of the Great Lakes, and the bays and harbors connected with said lakes along and in front of the land owned or leased from the State by any other person and for a distance of one mile from the beach or shore at low water mark, without such owner’s or lessee’s consent. And any person who shall remove marl, rock, stone, sand, gravel or earth from the bed of the Great Lakes, and the bays and harbors connected with said lakes, in front of the lands of any other person.and within one mile of the beach or shore at low water mark, without such owner’s or lessee’s consent, except as provided in section twenty-seven hereof, shall be liable to the owner or lessee of such land for the full value of the marl, stone, rock, sand, gravel and earth thus taken, and also be liable to a penalty of one hundred dollars to be recovered in a suit at law.”
The material covered by the act will be called gravel.
Plaintiff had acquired no lease or right to take the gravel under the statute.
Defendant dredging company had entered into a. lease with the department of conservation of the State which purported to give right to defendant to remove the gravel in question.
A verdict was directed for defendants and judgment entered thereon. Plaintiff has appealed.
The record title to the shore lands was not in plaintiff at and before bringing suit, but, due to blunder in conveying, was in Fred O. Lapish, who. owned nearly all the capital stock. The consideration was furnished by the plaintiff, and Lapish acted for it in the transaction and ought to have taken title in plaintiff, and his failure so to do is constructive though not intentional fraud. The blunder being discovered just before trial, Lapish conveyed to the corporation. Lapish, acting for the corporation, had caused this suit to be commenced. He was the chief witness in its behalf at the trial. The plaintiff was the only party injured by the trespass complained of, for the lands and the right of action, in truth and fact, belonged to it alone, and at all times here in question it had “the right to every substantial interest in the property 'conveyed” (Uhl v. Weiden, 122 Mich. 638), and the absolute right to have the record title. 3 Comp. Laws 1929, § 12975.
We recognize the general rule that one may not sue first and acquire the right of action afterward (Schwier v. Atlas Assurance Co., 227 Mich. 104), and that generally courts do not clothe the merely equitable claimant with the ability to adopt legal proceedings in his own name (Forrest v. O’Donnell, 42 Mich. 556), but this case is most exceptional. To make exception here would not actually invade the province of trustees, for this merely constructive trust is strictly not a trust at all but merely a remedy administered in certain fraudulent breaches of trusts. 1 Perry on Trusts (7th Ed.), § 166. No one would be harmed. Judgment here would be conclusive. We think of no just reason for the refusing the holding suggested in Moyer v. Scott, 30 Mich. 345, an action by a land contract purchaser in trespass to lands, quoting:
“If the land had been entirely paid for, or if the contract had been performed in full, a question might arise whether such a possessory right had not arisen that it needed no further aid from the holder of the legal title. And, in case that should be deemed essential, the question whether a deed to which the purchaser was at the time absolutely entitled might not, when subsequently executed, relate back to such time to uphold an action, would differ very much from the question presented here. In both of those cases, the purchaser is the only person who can be injured by the spoliation of the land.”
Plaintiff had right of action.
The first sentence of section 27, above quoted, gives to owners and lessees from the State of shore lands the exclusive right to take gravel as stated. It does not give a mere preference to such owners and lessees, but the exclusive right. But such right may not be exercised until and unless such an owner or lessee enters into the lease provided by the act. A lessee of shore lands from the State may have incorporated into his lease the statutory provision respecting taking gravel from the lake.
Section 28 repeats in substance the first sentence of section 27 by saying that no one may take the gravel without consent of such owner or lessee of the shore lands. And it gives right of action to such owner or lessee against anyone who takes gravel without his consent, and owner or lessee may not consent, of course, until and unless he has entered into the lease .provided by the act.
The paramount right of the Federal government in navigation is recognized.
As both parties claim under the statute, it is not contended to be invalid in any respect, nor is it argued to be without the power of the State nor in violation of its holding of lake bottom lands in trust. Nedtweg v. Wallace, 237 Mich. 14. It is assumed that taking the gravel from the lake is “without detriment to the public interests in the lands and waters remaining.” Illinois Central R. Co. v. Illinois, 146 U. S. 387 (13 Sup. Ct. 110). There are reasons for provision that shore owner of privately-owned lands shall have exclusive right to enter into such, lease, namely, riparian (or littoral) rights, which are property not generally to be taken by the State without just compensation to the owner. There can be no invasion of these rights for the mere purpose of selling gravel.
In Hilt v. Weber, 252 Mich. 198, 225 (71 A. L. R. 1238), it is said:
“Generally speaking, riparian rights are:
“(1) Use of the water for general purposes, as bathing, domestic use, etc. (2) To wharf out to navigability. (3)' Access to navigable waters. 27 R. C. L. pp. 1070, 1375; 45 C. J. p. 491; Black’s Pomeroy on Water Rights, p. 517. * * * (4) The right to accretions.
“Riparian rights are property, for the taking or destruction of which by the State compensation must be made, unless the use has a real and substantial relation to a paramount trust purpose. 45 C. J. p. 491; 1 Farnham on Waters and Water Rights, p. 297; United States v. River Rouge Improvement Co., 269 U. S. 411 (46 Sup. Ct. 144); Illinois Central R. Co. v. Illinois, supra. The State cannot impair or defeat riparian rights by a grant of land under water (McLennan v. Prentice, 85 Wis. 427 [55 N. W. 764, 23 A. L. R. 772, note]); nor cut off the owner’s access to the water by construction of a highway (1 Farnham on Waters, p. 301); nor grant to strangers the right to erect wharves in front of his property (Id., pp. 382, 383); nor erect a bathhouse on the shore to interfere with the right of access (Tiffany v. Oyster Bay, 234 N. Y. 15 [136 N. E. 224, 24 A. L. R. 1267]). On the contrary, the right of the State to use the bed of the lake, except for the trust purposes, is subordinate to that of the riparian owner (Town of Orange v. Resnick, 94 Conn. 573, 578 [109 Atl. 864, 10 A. L. R. 1046]), where it was said:
“ ‘The only"substantial paramount public right is the right to the free and unobstructed use of navigable waters for navigation.’ ”
The statute does not invade riparian rights. It recognizes them by according to the shore owner exclusive rights to enter into the lease and to take the material from the lake. ' It is hardly to be thought that the legislature would ignore the riparian proprietor and provide that his right of bathing might be violated, that his right to wharf out to navigability might be impaired, or that any of his rights might be invaded. Indeed, it is said this statute was passed on petition of shore owners along Lake Michigan who complained of sandsuckers destroying bathing beaches.
It is not questioned that the legislature may provide for such leasing so long as the holding in trust of such lake bottom be not violated, and the paramount right of the Federal government in navigation and the rights of riparian owners be not invaded. As to what may and what may not so offend, we are not called upon to discuss.
A shore owner is not required to enter into a. lease as contemplated by the act. He may do so and he may not. This conclusion is urged as a dog-in-the-manger attitude — the owner does not take lease and no one else may do so. It is argued that if the owner does not take lease within a reasonable time (presumably after the passage of the act) any person may be given the lease. Exercising rights under such a lease might impair or destroy valuable property rights of the riparian owner, without notice or hearing, without compensation, without due process of law; this the legislature did not intend.
A riparian owner, as such, is not concerned with appropriation of material on bottom of the lake so long as his rights are not interfered with. What might or might not constitute such interference we need not consider, as the act before us offers no possible prejudice to such owner.
We find in this statute no authority conferred on the department of conservation to enter into the lease with defendant to take gravel from the lake in front of plaintiff’s lands, and hold such lease void.
Right of the department of conservation to make the lease above mentioned is urged under Act No. 326, Pub. Acts 1913 (2 Comp. Laws 1929, § 5955). This is a general statute providing that all unpatented overflowed lands, made lands, and lake bottom lands belonging to the State, or held in trust by it, shall be held, leased, and controlled by the State board of control, now department of conservation. Acts Nos. 17 and 164, Pub. Acts 1921. The authority of the department is statutory. The legislature has dealt specially with respect to leases for taking gravel from lake bottom within one mile from shore, and this legislation is a restriction upon the general authority of the department to lease and it is bound thereby. The lease to defendant is contended to be sustained by practical construction of the statute first above quoted by proper State officers. A construction so plainly repugnant to the statute cannot be indulged.
Judgment reversed, with costs. New trial granted.
McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Sharpe, J., did not sit. | [
-16,
63,
-6,
-47,
-26,
77,
18,
21,
35,
51,
47,
2,
32,
-61,
-1,
-10,
-48,
-24,
-31,
30,
17,
0,
6,
-57,
16,
-45,
30,
3,
4,
25,
-67,
39,
-24,
-42,
8,
23,
11,
-32,
-13,
51,
1,
0,
52,
-9,
56,
27,
54,
-4,
-4,
-2,
30,
50,
24,
-37,
-20,
-18,
-27,
-58,
6,
24,
-34,
-47,
11,
18,
44,
27,
-32,
11,
53,
-8,
-27,
77,
-27,
12,
54,
10,
13,
-12,
-8,
31,
35,
26,
35,
-2,
-40,
-31,
-27,
23,
39,
-9,
-68,
11,
-78,
4,
13,
-30,
31,
-40,
11,
3,
25,
43,
-24,
0,
-20,
11,
-26,
-3,
3,
-12,
46,
1,
24,
-52,
13,
-17,
-4,
-20,
25,
-15,
-5,
-39,
-34,
-22,
-39,
-28,
-16,
-8,
-13,
12,
10,
-29,
0,
-32,
13,
37,
-74,
-20,
-2,
14,
-12,
47,
12,
-6,
-6,
13,
-10,
16,
0,
32,
-53,
18,
0,
15,
32,
24,
7,
-9,
65,
-20,
0,
-29,
-19,
-22,
-45,
9,
24,
-12,
6,
23,
47,
-55,
-2,
-22,
0,
4,
18,
29,
6,
-12,
44,
-6,
43,
-20,
-50,
-6,
-7,
-14,
-44,
38,
34,
-33,
34,
-68,
-34,
53,
8,
65,
-52,
-22,
25,
-45,
-20,
-28,
8,
-46,
77,
49,
-6,
21,
21,
55,
-1,
-101,
-17,
33,
18,
-25,
7,
-41,
44,
-36,
-2,
24,
-3,
-11,
-25,
22,
4,
-46,
0,
-60,
19,
-17,
-21,
27,
39,
12,
34,
5,
-15,
-14,
-40,
-45,
41,
-4,
-29,
7,
3,
36,
-16,
-29,
-27,
20,
-15,
24,
23,
-35,
-46,
-13,
-41,
32,
-28,
4,
-23,
32,
-19,
-8,
-10,
-5,
-8,
41,
21,
-11,
-68,
-40,
-7,
23,
-30,
18,
57,
-35,
0,
17,
-35,
2,
-46,
19,
-19,
8,
-29,
29,
19,
-23,
2,
52,
43,
-44,
6,
38,
3,
-8,
-18,
31,
16,
6,
-11,
37,
45,
1,
-10,
23,
-43,
17,
-19,
19,
12,
-13,
46,
-31,
43,
36,
-30,
21,
-77,
50,
38,
-7,
-22,
36,
20,
-16,
6,
-11,
-2,
18,
5,
-45,
-38,
18,
58,
-23,
36,
-3,
-12,
-21,
-39,
3,
51,
-42,
-9,
26,
-7,
39,
37,
17,
1,
-43,
-25,
52,
82,
0,
46,
-2,
16,
12,
-21,
-29,
42,
-2,
-19,
37,
18,
29,
-12,
9,
33,
-17,
-55,
3,
13,
0,
60,
39,
35,
24,
-11,
-5,
-35,
4,
-23,
-76,
-15,
41,
-14,
27,
-7,
1,
-15,
-26,
-11,
46,
7,
8,
24,
-21,
47,
-5,
20,
-5,
-9,
1,
21,
22,
2,
-11,
57,
20,
28,
25,
3,
16,
-17,
-7,
-4,
-33,
21,
-22,
26,
11,
-24,
54,
3,
-10,
25,
-15,
-64,
-13,
-32,
31,
-22,
27,
37,
-44,
-49,
-44,
-28,
45,
-34,
-56,
-24,
84,
-51,
29,
-27,
28,
22,
-4,
25,
2,
-30,
11,
29,
-24,
-32,
-37,
-20,
-12,
14,
39,
7,
40,
62,
-47,
-26,
-12,
-23,
50,
-35,
10,
25,
-16,
-16,
-20,
-21,
-15,
30,
13,
17,
-26,
19,
-4,
24,
-11,
31,
-64,
-36,
2,
48,
14,
39,
0,
-16,
17,
23,
4,
9,
24,
36,
46,
-5,
-11,
22,
23,
-12,
7,
23,
-40,
0,
29,
-9,
20,
-27,
13,
-10,
3,
9,
-49,
13,
-10,
4,
-30,
-36,
14,
-18,
-25,
29,
6,
-30,
10,
39,
-41,
11,
12,
-12,
44,
5,
-9,
37,
-20,
-34,
18,
-3,
-21,
-3,
25,
-49,
-7,
-43,
-21,
-45,
10,
13,
-39,
24,
21,
8,
-54,
15,
30,
-47,
11,
63,
-70,
-30,
49,
-4,
-28,
-25,
31,
-24,
-52,
-68,
-38,
-24,
-6,
13,
-10,
16,
-1,
-37,
-43,
-4,
-27,
-27,
15,
52,
44,
13,
-17,
9,
11,
-26,
1,
-16,
-16,
-10,
-18,
23,
6,
24,
-26,
-9,
37,
23,
21,
32,
-36,
39,
5,
16,
-32,
39,
0,
-14,
12,
-22,
20,
-39,
6,
-53,
1,
-50,
10,
45,
3,
2,
43,
-14,
15,
-33,
14,
-32,
26,
-3,
54,
67,
11,
-36,
-35,
-19,
73,
17,
40,
9,
19,
-3,
9,
2,
-8,
54,
-18,
-29,
0,
32,
-12,
-30,
34,
8,
5,
6,
9,
5,
37,
-8,
-31,
1,
39,
21,
87,
1,
0,
1,
-21,
20,
13,
-16,
15,
5,
4,
1,
3,
11,
-9,
22,
-23,
40,
6,
-14,
-5,
-31,
66,
48,
6,
9,
5,
-22,
-4,
-8,
13,
13,
-6,
10,
15,
18,
73,
-58,
2,
-21,
6,
17,
-80,
-11,
-5,
8,
-19,
-58,
38,
-65,
37,
2,
-8,
21,
-18,
-2,
-3,
-13,
-20,
-46,
-25,
24,
-26,
-26,
3,
-11,
15,
25,
13,
-36,
30,
-70,
-14,
-17,
55,
16,
-53,
-29,
26,
-33,
-5,
30,
8,
-25,
-13,
-15,
-60,
-1,
-24,
23,
-23,
-5,
10,
-31,
-20,
6,
-31,
-22,
56,
14,
5,
-17,
-21,
-18,
-12,
-26,
-49,
-1,
-36,
-1,
6,
-6,
1,
-10,
-7,
-22,
-24,
27,
-7,
-22,
-31,
-21,
17,
-5,
3,
-10,
2,
-51,
-27,
-59,
4,
-57,
-44,
-47,
-18,
6,
8,
14,
58,
56,
20,
-11,
0,
-12,
-11,
27,
23,
55,
-39,
-18,
-20,
53,
8,
-5,
24,
54,
-64,
10,
3,
32,
31,
-35,
-18,
-17,
-37,
11,
-37,
-25,
-30,
14,
2,
-28,
9,
-4,
45,
24,
-18,
5,
-1,
43,
-2,
7,
6,
-42,
36,
2,
-4,
10,
16,
-23,
25,
43,
3,
0,
21,
0,
24,
-35,
-82,
-37,
34,
-3,
32,
8,
-2,
-61,
-55,
4,
8,
24,
35,
0,
-60,
3,
-26,
-25,
-1,
16,
-66,
-18,
-12,
-19,
-14,
17,
48,
-11,
-18,
-15,
0,
55,
-2,
-32,
4,
-37,
-1,
-58,
-9,
-11,
67,
22,
20,
30,
44,
-7,
0,
-49,
4,
-39,
17,
-32,
35,
-78,
-27,
-21,
-26,
16,
31,
5,
-69,
-25,
17,
-37,
-25,
29,
17,
0,
15,
4,
-6,
19,
53,
0,
-1,
-18,
31,
-15,
18,
7,
-23,
-24,
0,
-37,
-17,
30,
38,
-12,
-49,
9,
-36,
17,
-21,
-29,
-75,
2,
-18,
-25,
-24,
-6,
51,
17,
-22,
8,
-32,
1,
-3,
37,
17,
34,
-22,
-7,
17,
-12,
24,
48,
2,
3,
-24,
-18,
-35,
-42,
-18,
-4,
18,
-30,
37,
34,
11,
49,
12,
20,
-25,
-52,
11,
49,
30,
-8,
22,
-27,
23,
10,
-32,
17,
-8,
-46,
62
] |
Wiest, J.
Plaintiff filed a bill for separate maintenance. The case being at issue, it was placed on the assignment call by the executive judge. Plaintiff applied for a continuance on the ground of sickness, and submitted the affidavit of a physician stating that she was suffering from arthritis, preventing her from “the exertion of attendance at court, and taking part in any extensive lawsuit for at least a period of one week.” Defendant’s counsel suggested the advisability of having another physician examine plaintiff, and an examination was so made, and, by affidavit, it was shown that “there was no evidence of arthritis and no evidence of swelling of the joints,” and that plaintiff was suffering only from a slight cold and septic sore throat. Defendant also filed an affidavit stating that the evening before plaintiff’s application for a continuance she traveled three miles and met him at the home of friends and talked with him for upward of two hours.
The executive judge refused the continuance, and assigned the case to another judge for immediate hearing. Under local .court rules the application for continuance had to be made to the executive judge previous to the time the case had reached a certain point on the assignment call.
Plaintiff renewed her application for a continuance before the trial judge, and it was again denied. Thereupon, plaintiff not being present with her witnesses and no proof being offered and defendant withdrawing his cross-bill, the bill was dismissed.
Defendant was anxious to have the case disposed of because he had an opportunity to obtain employment in New York, and, upon dismissal of the case, he went to New York.
Plaintiff petitioned the court to set the decree aside and reinstate the case, alleging her inability, on account of sickness, to attend the hearing. Further affidavits and counter-affidavits were filed, and the petition was denied.
Plaintiff reviews by appeal in the nature of mandamus, contending that the denial of reinstatement was an abuse of discretion. An examination of the proceedings fails to disclose an abuse of discretion. There has been no adjudication upon the merits of the case.
The order appealed from is affirmed, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
-12,
-44,
-27,
49,
22,
6,
-34,
-9,
-17,
73,
-9,
-17,
68,
-21,
-34,
2,
7,
-2,
-16,
-9,
-71,
8,
-2,
23,
-18,
17,
-12,
23,
-35,
24,
27,
-34,
-30,
-3,
-40,
-40,
61,
29,
2,
4,
15,
-28,
-4,
3,
-17,
-9,
-45,
19,
6,
-15,
22,
11,
-33,
-26,
-43,
-39,
5,
-41,
-17,
15,
-9,
7,
-29,
-50,
-26,
56,
23,
22,
-50,
3,
-38,
0,
-20,
-71,
-15,
-37,
-16,
7,
1,
41,
36,
-17,
-1,
9,
-21,
74,
-5,
3,
1,
-2,
-1,
35,
-61,
-44,
-87,
21,
8,
15,
62,
7,
-20,
10,
-2,
15,
15,
40,
10,
18,
-25,
-14,
21,
-24,
13,
-8,
34,
0,
7,
58,
-8,
2,
24,
9,
29,
3,
7,
-2,
-7,
24,
-54,
4,
32,
8,
2,
14,
27,
-5,
13,
-34,
8,
10,
24,
31,
20,
11,
1,
16,
-1,
-23,
-35,
4,
-1,
21,
37,
-16,
-7,
31,
-4,
-26,
14,
4,
24,
35,
-16,
-44,
7,
-8,
30,
43,
63,
-10,
52,
20,
9,
-41,
-55,
10,
32,
2,
-19,
-19,
-5,
42,
9,
-47,
54,
-2,
-65,
-37,
-2,
-27,
-7,
-30,
28,
15,
57,
-17,
27,
10,
1,
-4,
-28,
-13,
-18,
-7,
-14,
60,
9,
-23,
0,
-26,
-25,
-3,
-28,
-81,
-18,
-35,
17,
-15,
-54,
-2,
-19,
11,
28,
-28,
-72,
-12,
10,
28,
18,
8,
-9,
-17,
3,
58,
4,
-5,
18,
-15,
52,
3,
-63,
65,
27,
-21,
-27,
14,
-28,
32,
-17,
-44,
21,
0,
6,
24,
-38,
-36,
2,
-26,
-40,
5,
21,
19,
-35,
27,
31,
-32,
55,
41,
43,
-48,
0,
13,
10,
-46,
-11,
-5,
-25,
-21,
-1,
14,
-15,
4,
-67,
10,
-21,
32,
25,
1,
34,
21,
6,
-56,
-10,
5,
17,
-13,
-7,
21,
-39,
-23,
-27,
-36,
17,
57,
-46,
2,
-30,
6,
40,
-52,
19,
0,
33,
0,
31,
-5,
-31,
-8,
-52,
-88,
8,
19,
-19,
4,
-42,
-63,
-16,
-46,
38,
-21,
4,
24,
5,
14,
32,
-24,
-1,
16,
-38,
-18,
43,
26,
-38,
28,
-23,
17,
18,
-44,
46,
24,
-28,
-26,
34,
13,
-6,
-32,
11,
-16,
-7,
7,
-13,
14,
10,
-10,
10,
0,
34,
31,
19,
30,
-28,
-42,
-28,
-13,
-10,
-40,
-9,
29,
-1,
25,
-7,
-32,
8,
46,
-4,
41,
-30,
-7,
27,
-16,
-18,
-4,
13,
55,
-43,
-6,
-36,
3,
-18,
77,
15,
-2,
40,
48,
7,
-5,
5,
0,
-11,
44,
-8,
-8,
-16,
-25,
21,
-11,
-6,
16,
27,
-45,
22,
-12,
-6,
8,
2,
-31,
18,
-37,
47,
-32,
-19,
-45,
0,
15,
10,
-7,
6,
-37,
7,
22,
-17,
-26,
-30,
-44,
-31,
26,
7,
-22,
-14,
-12,
8,
-10,
63,
-12,
39,
-15,
-13,
8,
0,
-6,
0,
-46,
-35,
-21,
76,
19,
-10,
-11,
3,
3,
42,
-10,
15,
41,
-8,
-16,
-38,
13,
-3,
9,
12,
44,
21,
-15,
0,
27,
-11,
-23,
-22,
13,
-4,
-68,
13,
55,
-40,
-39,
-30,
-28,
-88,
2,
-12,
12,
-7,
23,
23,
-68,
-22,
-4,
32,
18,
-69,
-23,
18,
25,
-24,
-4,
36,
8,
0,
59,
5,
-2,
-4,
9,
-51,
6,
-7,
-10,
-13,
0,
47,
16,
48,
-10,
24,
-3,
-7,
-36,
15,
2,
-20,
60,
31,
13,
54,
-25,
6,
10,
-5,
36,
3,
2,
15,
25,
-40,
0,
40,
20,
39,
-34,
-20,
-2,
6,
-3,
44,
9,
19,
4,
19,
20,
-28,
12,
21,
6,
-14,
-6,
-15,
8,
-22,
-9,
-3,
9,
6,
-12,
-18,
6,
12,
-11,
-10,
-37,
-14,
-17,
31,
-10,
17,
-28,
0,
-29,
13,
12,
-6,
-1,
-44,
-17,
-69,
29,
2,
38,
30,
-43,
34,
46,
-10,
-63,
-25,
-9,
3,
16,
1,
34,
23,
28,
2,
-27,
2,
-38,
0,
-18,
2,
-7,
8,
-36,
24,
-29,
15,
18,
-39,
-14,
9,
-9,
-17,
17,
-9,
-20,
-21,
19,
58,
-44,
-31,
-6,
15,
81,
18,
4,
-5,
13,
30,
-8,
-14,
-13,
-7,
-27,
-14,
29,
1,
25,
35,
17,
-17,
-6,
26,
25,
40,
-10,
21,
-29,
16,
-1,
-35,
4,
-18,
-21,
22,
38,
-16,
-15,
42,
16,
46,
-10,
-13,
-14,
7,
8,
-8,
8,
-9,
-35,
20,
30,
14,
19,
-8,
4,
-22,
21,
-21,
-14,
-28,
-4,
-5,
-40,
-12,
22,
42,
17,
7,
33,
14,
-45,
6,
-15,
10,
-21,
27,
52,
11,
-2,
46,
-61,
-12,
-8,
2,
19,
-43,
0,
2,
4,
-9,
20,
79,
48,
38,
12,
-33,
9,
-14,
-10,
-6,
1,
8,
-35,
-29,
-32,
-27,
16,
18,
-46,
40,
45,
26,
9,
6,
8,
-34,
-6,
-22,
1,
-23,
23,
-41,
23,
60,
-81,
-6,
57,
-41,
-24,
0,
0,
-38,
-24,
-14,
35,
13,
-46,
14,
-3,
-14,
18,
-29,
-50,
20,
-30,
19,
18,
-31,
11,
18,
-11,
47,
41,
-13,
31,
-16,
57,
-42,
45,
-40,
-22,
-14,
-24,
36,
9,
-3,
-53,
18,
-5,
-36,
-38,
1,
61,
3,
-5,
29,
-13,
-13,
-9,
18,
-26,
-10,
-61,
-6,
5,
12,
46,
20,
-4,
-29,
0,
20,
22,
20,
26,
23,
-43,
13,
10,
1,
34,
10,
10,
22,
-7,
-4,
-46,
8,
-11,
-12,
8,
-7,
24,
-8,
-91,
15,
-21,
-33,
10,
77,
-36,
14,
-21,
-23,
-1,
-18,
13,
7,
-16,
-26,
-13,
10,
-9,
-52,
52,
19,
6,
28,
3,
-70,
18,
35,
-1,
3,
-15,
-36,
18,
-8,
32,
-31,
16,
-12,
35,
59,
0,
12,
-23,
5,
29,
-8,
-30,
-17,
17,
18,
-19,
34,
0,
19,
22,
-49,
-1,
-5,
10,
26,
-11,
-21,
-35,
10,
-10,
-9,
3,
58,
-47,
9,
32,
25,
-59,
12,
-7,
10,
8,
-15,
-50,
33,
13,
1,
4,
-14,
37,
-8,
62,
-14,
-10,
14,
-22,
-40,
31,
54,
-11,
2,
0,
34,
-13,
-22,
22,
0,
-3,
24,
54,
-38,
19,
5,
-6,
-22,
-23,
-54,
9,
-11,
23,
-12,
26,
8,
-64,
-21,
14,
-46,
39,
-24,
17,
-21,
-47,
20,
25,
3,
14,
-4,
15,
-21,
-27,
-23,
40,
-21,
5,
-20,
2,
46,
10,
27,
-1,
-18,
-5,
11,
12,
35,
-25,
13,
-22,
-38,
-72,
-41,
-8,
0,
50,
61,
8
] |
Per Curiam.
Defendant appeals as of right from a jury conviction of receiving and concealing stolen property, MCL 750.535; MSA 28.803. Following conviction on a supplemental information charging him with being a fourth-felony offender, defendant was sentenced to a term of from 5 to 10 years in prison. We reverse.
On July 20, 1982, twelve Lansing police officers executed a search warrant at a private residence located at 1521 Reo Road where they discovered several TV’s, stereos, jewelry boxes, bedspreads and firearms, all of which were later identified as stolen property. At trial, the prosecution introduced evidence establishing that the owner or tenant of the home was Alla Fay Thornsbury and that defendant resided there with her, at least for the two-month period immediately preceding the execution of the search warrant.
Thornsbury was the only defense witness presented at trial. She testified on direct examination that she had lived at the Reo Road residence for approximately five years with her three sons and one daughter. During the two months prior to July 20, 1982, defendant was a regular visitor at the residence and spent some nights. According to Thornsbury, defendant paid no rent or bills or maintenance costs and had no authority or control over the house. The witness further testified that a friend had asked her if he could leave the stolen property at her home and that defendant was unaware of the arrangement.
On cross-examination, Thornsbury refused to divulge the name of the friend who had deposited the stolen property at her house. Thornsbury continued to refuse even after the court instructed her to answer. The prosecutor then asked the court to strike her testimony. The court complied and the jury was instructed to disregard her entire testimony.
On appeal, defendant contends that the trial court erred in striking Thornsbury’s entire testimony and that the effect of the error was that he was denied his constitutional right to present a defense. Upon analysis of this very difficult question, we find that it was error for the trial court in this case to strike the entire testimony of the noncooperative witness.
In Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967), the United States Supreme Court held that a fundamental element of due process is the right of a criminal defendant to present his or her own witnesses at trial to establish a defense. That right is not absolute, however, and must in some cases be weighed against the need for "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence”. Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). The balancing of these competing interests in determining the admissibility of a witness’s testimony is a matter within the discretion of the trial judge. People v Carter, 96 Mich App 694, 703; 293 NW2d 681 (1980), lv den 410 Mich 872 (1980).
In cases where a prosecution witness testifies on direct examination and then refuses to answer certain questions on cross-examination, courts have generally focused upon three criteria in deciding whether to strike the witness’s testimony. (1) If the information sought on cross-examination closely relates to the issues being tried and if the inability to develop the information deprives the defendant of his right to test the credibility of the witness, then the noncooperative witness’s entire testimony should be stricken. (2) A less drastic approach is preferred where the information sought on cross-examination is only partly connected to the issues being tried or to the information obtained on direct examination. Under these circumstances a partial striking of the witness’s testimony on direct examination is sufficient. (3) Finally, where the information sought on cross-examination is merely collateral or cumulative, the refusal of a witness to be cross-examined on those matters does not require that any testimony be stricken and an instruction to the jury is all that is necessary. United States v Stephens, 492 F2d 1367, 1374-1375 (CA 6, 1974).
We believe that the same general considerations are applicable in cases where a defense witness refuses to submit to cross-examination by the prosecutor. In this case, the only information that was refused on cross-examination was the name of the person who delivered the stolen property to the witness’s home. While that information may have been probative of the witness’s credibility on the question of how she and the defendant came to possess the property, it did not relate to testimony regarding her sole possessory interest in the Reo Road residence or to testimony regarding the defendant’s pattern of visitation during the two months preceding the execution of the search warrant. We conclude that a balancing of the compet ing interests requires, at most, a striking of the witness’s testimony only as it relates to the circumstances under which the stolen property was delivered to her house.
We cannot say that the error in this case was harmless. While we believe, contrary to the defendant’s position on appeal, that the evidence introduced at trial was sufficient to support his conviction, we are persuaded that the case presented by the prosecution to the jury was a close one. As explained to the jury by way of CJI 26:1:03, concealment involves the intentional hiding, putting out of sight, disguising or disposing of property to avoid discovery or observation. The evidence introduced at this trial established that defendant resided at the Reo Road residence and occupied the bedroom in which much of the stolen property was discovered. Defendant’s residency spanned the time period during which the property had been stolen from the owners. Further, the evidence established that defendant used some of that property. We find that a reasonable trier of fact could have concluded from this evidence that defendant intentionally aided in the concealment of property stolen, People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980), particularly given the court’s instruction that defendant was not under a duty to report stolen property to the police.
Because of the closeness of the case, however, we find that Thornsbury’s testimony was particularly critical to a fair determination of defendant’s guilt or innocence. Since we cannot say that the exclusion of that testimony was harmless error we must reverse the defendant’s conviction.
Defendant also contends that the charge against him should be dismissed because his preliminary examination was conducted more than 12 days after his arraignment. He was arriagned on July 28, 1982, and the preliminary examination was conducted on August 19, 1982, resulting in a 22-day delay.
MCL 766.4; MSA 28.922 provides:
"The magistrate before whom any person is brought on a charge of having committed a felony shall set a day for a preliminary examination not exceeding 12 days thereafter, at which time a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the accused, in regard to the offense charged and in regard to any other matters connected with the charge which the magistrate considers pertinent.”
Until recently, this Court has declined to reverse criminal convictions for noncompliance with the 12-day rule where there was no showing of prejudice to the defendant. In People v Weston, 413 Mich 371; 319 NW2d 537 (1982), however, the Michigan Supreme Court rejected the "no prejudice/no reversible error” rule, interpreting the 12-day rule as "an unqualified statutory command that the examination be held within 12 days”. 413 Mich 376.
The prosecution argues that the intent of the Legislature in enacting MCL 766.4; MSA 28.922 was to prohibit the state from holding a presumptively innocent defendant in custody for longer than 12 days in the absence of any probable cause hearing. The prosecution then reasons that because defendant in this case was arrested at Thornsbury’s house on an escape charge, the time spent in custody between the arraignment and the preliminary examination would have been served regardless of the results of the probable cause hearing. We conclude that this argument falls within the "no prejudice/no reversible error” rule rejected by the Supreme Court in Weston. Thus, reversal of defendant’s conviction is also required under MCL 766.4; MSA 28.922. As in Weston, however, reversal is without prejudice to the prosecutor’s right to reinstate a prosecution.
Reversed. | [
-20,
-9,
-29,
-8,
-46,
-20,
-72,
28,
-19,
-4,
23,
1,
2,
-6,
27,
-4,
-17,
0,
36,
-36,
18,
-34,
-38,
77,
3,
-51,
59,
0,
-33,
4,
-3,
-16,
44,
-58,
-20,
-28,
53,
15,
-10,
73,
19,
8,
9,
-40,
-44,
-21,
16,
46,
4,
-39,
20,
-3,
-21,
17,
0,
4,
18,
10,
43,
14,
25,
30,
-35,
-8,
-10,
30,
40,
-34,
-41,
-31,
19,
-26,
-15,
-32,
36,
-5,
-2,
43,
16,
24,
27,
16,
6,
4,
28,
-7,
22,
-33,
3,
-14,
-14,
11,
-29,
8,
2,
-17,
32,
-34,
88,
23,
-54,
-20,
-14,
36,
7,
1,
-43,
-45,
4,
-26,
22,
-18,
24,
26,
-23,
-28,
-22,
10,
-42,
-8,
43,
45,
39,
-19,
63,
-16,
19,
-70,
20,
-17,
21,
44,
10,
-42,
-6,
10,
3,
-13,
-1,
-39,
10,
-1,
35,
-14,
46,
-30,
0,
23,
-9,
43,
-3,
0,
-36,
38,
-4,
3,
-46,
-17,
0,
16,
22,
34,
-65,
-21,
20,
-28,
1,
13,
31,
-34,
-4,
-22,
-9,
-16,
26,
-38,
-1,
3,
5,
-31,
-32,
16,
13,
19,
-23,
-35,
-46,
16,
-38,
-1,
11,
24,
-9,
-14,
10,
42,
-11,
39,
19,
-42,
54,
-13,
2,
-19,
42,
-43,
50,
-38,
54,
0,
-36,
-5,
-10,
-32,
5,
-24,
-11,
6,
-4,
64,
-27,
6,
-33,
-44,
-23,
35,
39,
-3,
18,
16,
46,
14,
20,
-24,
-15,
9,
-35,
-11,
36,
22,
-15,
-20,
10,
-26,
23,
-26,
4,
-1,
-1,
-18,
-11,
34,
-27,
21,
-4,
6,
10,
-23,
10,
-21,
25,
45,
2,
0,
-38,
9,
12,
32,
-65,
-15,
-24,
10,
-38,
52,
3,
5,
-12,
31,
0,
-15,
-14,
8,
7,
4,
-11,
-30,
18,
64,
60,
5,
20,
-28,
-39,
18,
9,
6,
-11,
-29,
-46,
-7,
29,
-21,
-11,
18,
16,
10,
45,
-10,
8,
37,
50,
12,
31,
22,
-5,
54,
-25,
-42,
-18,
-8,
-51,
-38,
-28,
-9,
25,
5,
29,
-68,
-4,
3,
15,
16,
-13,
4,
-2,
21,
1,
-27,
4,
21,
13,
-37,
14,
-60,
37,
41,
-21,
47,
-66,
24,
0,
24,
-27,
-3,
13,
-54,
-40,
-17,
-33,
1,
29,
20,
-8,
13,
-17,
-12,
-2,
-51,
33,
28,
-2,
-71,
6,
-11,
-58,
3,
-4,
-44,
-10,
37,
6,
-35,
35,
1,
-5,
-9,
-12,
-12,
17,
34,
-17,
-23,
34,
-60,
-9,
0,
-11,
10,
19,
7,
-51,
18,
-5,
10,
-68,
-25,
-38,
17,
-7,
-18,
-5,
-1,
32,
43,
-37,
-28,
-21,
-50,
31,
0,
-32,
-9,
-15,
4,
0,
-18,
-32,
19,
20,
14,
17,
-6,
-6,
-52,
43,
11,
-58,
-36,
-8,
20,
-10,
25,
-31,
11,
28,
-3,
-25,
-48,
19,
-12,
7,
19,
-13,
-23,
-18,
-10,
115,
-7,
-2,
-3,
39,
-33,
-11,
10,
-3,
-3,
-16,
-49,
0,
19,
65,
15,
37,
-8,
-37,
24,
-32,
37,
-41,
23,
33,
20,
16,
4,
-5,
29,
-18,
-52,
40,
-6,
-15,
17,
12,
41,
-8,
10,
22,
-25,
27,
12,
1,
34,
-4,
-4,
67,
-1,
40,
-16,
36,
26,
-19,
-3,
-41,
30,
-40,
-8,
22,
-24,
18,
15,
10,
-4,
-2,
-19,
-42,
27,
12,
18,
-31,
8,
17,
39,
-18,
-1,
31,
7,
-10,
-16,
-18,
19,
-25,
36,
24,
56,
-15,
-9,
4,
-42,
-20,
-21,
6,
-3,
-19,
-8,
-2,
-21,
8,
21,
15,
7,
-14,
-15,
69,
-13,
23,
-11,
-16,
1,
9,
0,
31,
9,
-63,
-11,
-19,
25,
-8,
31,
-18,
10,
-37,
42,
-3,
-27,
5,
-12,
-13,
13,
52,
-8,
-42,
1,
36,
-46,
-15,
-45,
-78,
-73,
1,
9,
2,
1,
-29,
39,
1,
-44,
31,
22,
-23,
-7,
75,
-16,
-2,
-44,
17,
16,
-27,
-40,
-36,
4,
13,
-12,
-38,
15,
5,
-57,
-26,
34,
-8,
-27,
-10,
-21,
-9,
21,
8,
-9,
-7,
-10,
-18,
0,
-5,
13,
-13,
-7,
-22,
-15,
16,
-77,
10,
-45,
-49,
47,
7,
-18,
55,
16,
17,
13,
46,
-19,
9,
-2,
-83,
-12,
-13,
-2,
-30,
-53,
49,
21,
20,
-18,
5,
37,
-31,
12,
20,
-34,
10,
-25,
4,
-18,
-15,
28,
-7,
-19,
-7,
-27,
32,
-21,
-1,
-14,
29,
16,
15,
-21,
60,
-4,
-23,
31,
-35,
8,
12,
4,
-19,
-1,
6,
-12,
-12,
-1,
-46,
10,
0,
-27,
23,
-38,
-53,
-9,
19,
48,
-8,
8,
33,
-5,
-1,
-30,
44,
-24,
57,
-6,
14,
10,
14,
23,
12,
44,
-27,
17,
4,
14,
-31,
39,
25,
-70,
17,
-13,
39,
-34,
-10,
17,
46,
54,
50,
10,
-24,
23,
0,
-5,
-38,
-23,
10,
6,
10,
-40,
-26,
5,
-8,
-25,
28,
39,
-36,
-20,
39,
-11,
-27,
29,
14,
7,
73,
-17,
22,
14,
-21,
-18,
49,
0,
8,
15,
-28,
23,
2,
7,
-63,
3,
4,
9,
-24,
1,
16,
-12,
37,
-14,
73,
0,
5,
9,
-26,
40,
-42,
27,
16,
-22,
-36,
-33,
19,
-3,
32,
-3,
64,
-19,
-9,
20,
-37,
19,
-58,
43,
22,
-60,
4,
17,
-37,
-22,
-3,
54,
0,
-33,
13,
59,
13,
3,
3,
11,
-7,
-7,
18,
56,
-36,
5,
-17,
53,
19,
-31,
30,
19,
8,
-20,
-27,
32,
16,
-9,
-31,
-5,
11,
-8,
-7,
19,
-6,
-28,
49,
5,
4,
26,
-14,
27,
32,
5,
2,
29,
-7,
33,
7,
-9,
-36,
4,
37,
24,
-24,
-17,
-10,
-2,
-6,
31,
32,
16,
-28,
6,
36,
-18,
-4,
-31,
21,
-25,
-24,
28,
26,
0,
18,
7,
-38,
-31,
-1,
-7,
-56,
-28,
45,
3,
-66,
-35,
0,
-8,
0,
42,
-41,
-2,
-5,
-41,
30,
-16,
-36,
36,
2,
-26,
-29,
4,
36,
-26,
56,
-52,
29,
-6,
-44,
-25,
-42,
18,
-46,
25,
0,
37,
18,
25,
-41,
-3,
5,
23,
0,
15,
29,
-43,
-13,
0,
-12,
76,
48,
-21,
26,
18,
38,
-7,
-25,
18,
1,
-56,
10,
-56,
-29,
-36,
4,
42,
-17,
-7,
-16,
-29,
-27,
14,
8,
-28,
12,
-2,
-34,
-14,
-8,
-23,
24,
34,
11,
46,
-42,
-22,
7,
35,
-43,
7,
16,
1,
-18,
-28,
-7,
-6,
-50,
4,
-46,
-63,
37,
30,
-48,
12,
-37,
27,
-46,
-28,
17,
29,
20,
66
] |
Per Curiam.
Plaintiff appeals from the trial court’s grant of accelerated and summary judgments in favor of defendants. GCR 1963, 116.1(5), 117.2(1). We affirm.
This case arises from the termination of plaintiff’s employment with Kwik Car Wash, Inc. Plaintiff alleges that he was suspended from work on October 8, 1982, because of an argument with defendant Wasson. According to plaintiff, he then went to the labor board and complained that he was not receiving overtime pay. Plaintiff contends that when he reported to the car wash on October 12, 1982, to find out when he was to return to work, Wasson told him that "they didn’t like people that went to the labor board” and that he was "laid off for lack of work since they couldn’t fire” him. Defendants dispute this version of events, claiming that plaintiff was discharged on October 8, 1982, for poor attitude and inadequate work performance, reasons unrelated to any subsequent report he made to the labor board.
I
The basis for Count I of plaintiff’s complaint is the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. The trial court found that this claim was barred because plaintiff failed to initiate this action within the 90-day limitation period set forth in MCL 15.363(1); MSA 17.428(3)(1):
"A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act.”
On appeal, plaintiff does not claim that he filed within the statutory limitation period. Rather, he claims that the 90-day limitation period should be construed as permissive and not mandatory, that is, "that one is allowed to start such action within 90 days of the occurrence complained of and is not prohibited from starting suit thereafter”. We find this argument without merit. Plaintiff’s construction renders the 90-day limitation period meaningless.
Plaintiff also contends that if the statute is to be construed as a statute of limitations it only bars the two forms of relief specified in that provision, injunctive relief and actual damages, and does not bar an action for the other remedies enumerated in MCL 15.364; MSA 17.428(4). MCL 15.364; MSA 17.428(4) provides:
"A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.”
To adopt plaintiff’s construction would lead to an absurd result, which this Court is bound to avoid. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 114, n 4; 252 NW2d 818 (1977). Our Supreme Court has stated the rule:
"The fundamental rule of construction of statutes is to ascertain and give effect to the intention of the Legislature; courts are bound, whenever possible, so to construe statutes as to give them validity and a reasonable construction; seeming inconsistencies in the various provisions of a statute should be reconciled, if possible, so as to arrive at a meaning which gives effect to all parts of the statute; a construction leading to an absurd consequence should be avoided.” In re Petition of State Highway Comm, 383 Mich 709, 714-715; 178 NW2d 923 (1970) (Citations omitted.)
The statutory definition of "damages” as that term is used in MCL 15.363(1); MSA 17.428(3)(1) is set forth in MCL 15.363(3); MSA 17.428(3)(3):
"As used in subsection (1), 'damages’ means damages for injury or loss caused by each violation of this act, including reasonable attorney fees.”
A logical construction would be that the Legislature intended the 90-day limitation period to apply to claims for all damages. The language "appropriate injunctive relief’, as used in MCL 15.363(1); MSA 17.428(3)(1), is sufficiently broad and encompasses the specific forms of injunctive relief set forth in MCL 15.364; MSA 17.428(4).
We hold that MCL 15.363(1); MSA 17.428(3X1) is a statute of limitations and that, if not met, it bars an action under the Whistleblowers’ Protection Act, regardless of the remedy requested.
Plaintiff next asks this Court to find that the period of limitation is unduly and unconstitutionally short. According to plaintiff, he, and non-union, non-governmental workers like him, who most need the protections of the statute, are naive about the law and unaware of their rights, so that a short 90-day period of limitation is unjust.
In creating a right, the Legislature may place reasonable restrictions on the exercise of that right, including specific time limitations. Forest v Parmalee, 402 Mich 348, 359; 262 NW2d 653 (1978). Statutes of limitations are generally considered to be procedural requirements. Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971). As such, they are upheld by our courts unless it can be demonstrated that they are so harsh and unreasonable in their consequences that they effectively divest plaintiffs of the access to the courts intended by the grant of the substantive right. Forest v Parmalee, supra, p 359.
Here, the facts contradict plaintiff’s assertion. By plaintiff’s own admission, within one month of his severence from employment he sought advice of counsel and was specifically informed by labor board personnel of his potential cause of action against defendants under the Whistleblowers’ Protection Act. Plaintiff has failed to make any showing that the statute of limitations has operated arbitrarily or capriciously in barring his cause of action. Id., p 357. The trial court’s grant of accelerated judgment was proper.
II
Plaintiff next claims that it was error for the trial court to grant summary judgment in defendants’ favor, finding plaintiff had failed to state a cause of action for breach of implied covenant of fair dealing and/or retaliatory discharge. Defendants assert that plaintiff’s cause of action under the Whistleblowers’ Protection Act is exclusive.
When a statute creates a new right or imposes a new duty having no counterpart in the common law, the remedies provided in the statute for violation are exclusive and not cumulative. Correlatively, a statutory remedy for enforcement of a common-law right is deemed only cumulative. Pompey v General Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Plaintiff has cited no authority for the proposition that there exists a common-law right to be free from discharge from employment for reporting an employer’s violation of the law.
This Court has recognized a "public policy” exception to the general rule that at-will employment may be terminated at any time for any reason. Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976); Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978). This exception is based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. These proscriptions are most often found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty. The Whistleblowers’ Protection Act, MCL 15.362; MSA 17.428(2), is one of these statutes. Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982).
The existence of a specific statutory prohibition against retaliatory discharge is critical in this case. Unlike Pompey, supra, which dealt with the exclusive-cumulative dichotomy regarding statutory remedies in the context of fundamental or civil rights, the instant case involves an alleged violation of a proprietary right. Lamphere Schools, supra. In Ohlsen v DST Industries, Inc, 111 Mich App 580; 314 NW2d 699 (1981), this Court considered whether a plaintiff had an action for retalia tory discharge where a specific provision of the Michigan Occupational Safety and Health Act prohibited retaliatory discharges. The Court stated:
"The plaintiff cites Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976), to support his argument that when an employer terminates the employment of an 'at-will’ employee, for purposes of circumventing the statutorily established public policy, the employee-victim of such conduct does have a cause of action.
"We adopt the rationale of the trial court:
" Sventko can be distinguished from the present case by the fact that the workmen’s compensation statute does not prohibit retaliatory discharges of employees who file claims under the act, while MIOSHA specifically prohibits such actions. See MCL 408.1065; MSA 17.50(65). Since the workmen’s compensation statute does not directly prohibit retaliatory discharges by employers, the Court carved out an exception to the general rule that either party may terminate an employment at will for any reason or no reason by providing the discharged employee a remedy where none is provided under the statute.
" 'In the present case, however, retaliatory discharges are expressly prohibited under the MIOSHA statute, and, in addition, a remedy is provided to an employee who claims a violation of the statute. Therefore, unlike the plaintiff in Sventko, the plaintiff in the present case has a remedy provided by the statute under which he is suing.’
"The Sventko decision does not extend to this case where the statute involved prohibits retaliatory discharge and provides an exclusive remedy.” 111 Mich App 585-586.
Ill
Plaintiff also claims that the trial court erred in granting summary judgment on Count IV of the complaint, finding that it failed to state a cause of action against defendants Wasson and Spengler, officers of defendant corporation. There is case law support for a cause of action in favor of a discharged employee against a corporate official for tortious interference with the employee’s at-will employment with the corporation. Tash v Houston, 74 Mich App 566; 254 NW2d 579 (1977). However, the facts pled by plaintiff here do not establish such an action. Plaintiff alleged that defendants terminated his employment because he reported to the labor board that the corporation was not paying overtime wages. This is a complaint against the corporation, not against corporate officials acting in their own personal interest. Id., p 574.
The trial court was correct. Under the facts of this case, the Whistleblowers’ Protection Act is plaintiff’s exclusive remedy.
Affirmed. | [
28,
-12,
-49,
77,
51,
18,
-8,
-66,
-17,
67,
-6,
4,
32,
-68,
32,
-6,
15,
17,
8,
0,
15,
-3,
28,
5,
-20,
-12,
-21,
4,
7,
37,
-15,
-35,
-20,
-71,
-37,
-33,
23,
27,
13,
42,
-6,
-42,
7,
-22,
-8,
-33,
-16,
30,
31,
-29,
38,
22,
-16,
1,
14,
-38,
26,
-27,
-26,
9,
-31,
5,
58,
-36,
51,
28,
-26,
36,
-13,
-5,
-17,
13,
6,
-42,
-22,
-59,
3,
53,
13,
4,
3,
-44,
15,
-8,
-27,
40,
-19,
7,
-45,
13,
-46,
-44,
-26,
-58,
-52,
-2,
9,
-6,
44,
20,
-15,
29,
14,
-18,
-17,
11,
-17,
-18,
-41,
30,
14,
30,
17,
-12,
-25,
-61,
30,
64,
-16,
6,
13,
19,
45,
9,
27,
-28,
-24,
18,
-22,
58,
-4,
20,
17,
-10,
34,
10,
69,
-29,
0,
-16,
-42,
-13,
-23,
-42,
22,
26,
17,
32,
42,
-3,
-37,
9,
18,
21,
6,
13,
-35,
-25,
16,
-4,
19,
-3,
-8,
-6,
4,
-34,
-31,
42,
27,
-19,
9,
3,
5,
2,
-13,
0,
-1,
-14,
-34,
0,
-65,
0,
0,
28,
33,
-3,
-58,
-13,
1,
-2,
1,
-9,
53,
14,
28,
-21,
67,
34,
42,
10,
9,
-24,
20,
0,
5,
17,
46,
6,
-17,
4,
-24,
-2,
8,
-53,
-22,
-52,
2,
11,
1,
-25,
-8,
-12,
-36,
6,
-6,
7,
8,
32,
47,
-1,
-3,
25,
36,
26,
-28,
-10,
63,
41,
67,
22,
-22,
3,
4,
-8,
-60,
16,
-36,
2,
50,
8,
10,
38,
21,
12,
-43,
-28,
-49,
40,
-18,
-21,
37,
38,
-16,
-20,
-29,
2,
-39,
73,
-39,
-34,
15,
3,
77,
6,
-13,
-45,
-15,
-22,
14,
-8,
-49,
22,
-25,
-43,
-76,
-15,
46,
-27,
19,
2,
12,
-28,
-30,
30,
51,
-8,
10,
30,
0,
12,
-16,
-53,
-18,
-16,
5,
-4,
-57,
2,
0,
-36,
-15,
-7,
44,
-15,
-9,
-4,
-15,
-6,
20,
-40,
17,
13,
5,
-7,
-18,
-39,
0,
-32,
28,
-46,
26,
-24,
-43,
15,
43,
0,
26,
22,
22,
10,
10,
23,
13,
-1,
-44,
37,
31,
18,
46,
33,
21,
2,
0,
3,
40,
39,
25,
-20,
-57,
3,
16,
-17,
-48,
-22,
2,
57,
-25,
-13,
-9,
34,
-27,
-25,
-15,
-12,
-23,
-16,
-20,
28,
-20,
49,
31,
-28,
51,
-41,
8,
38,
10,
8,
1,
-63,
-37,
-15,
-4,
23,
7,
6,
-29,
9,
27,
37,
-59,
-18,
0,
-12,
34,
-7,
9,
21,
-29,
47,
-14,
27,
28,
25,
-26,
-38,
19,
-9,
40,
-45,
51,
2,
6,
-14,
0,
-21,
16,
44,
-4,
-11,
8,
-6,
-9,
-67,
-57,
55,
-11,
-48,
-10,
-24,
-31,
-9,
-24,
-43,
17,
26,
1,
-57,
6,
-14,
8,
2,
45,
27,
-12,
-27,
0,
1,
-20,
42,
-3,
-31,
-23,
57,
26,
-4,
21,
-3,
-9,
18,
27,
0,
6,
40,
-27,
-40,
9,
44,
48,
6,
5,
28,
8,
-33,
-36,
18,
-29,
-23,
11,
-37,
40,
5,
-29,
1,
-22,
-26,
-27,
-14,
-22,
10,
-39,
-25,
57,
-11,
43,
-52,
2,
-71,
0,
-1,
-28,
-14,
34,
52,
39,
23,
-31,
28,
-6,
16,
-7,
9,
-5,
-10,
-39,
-20,
-27,
-9,
-13,
11,
13,
44,
49,
-39,
68,
26,
-8,
-22,
-46,
-21,
17,
36,
-1,
50,
65,
-20,
-17,
-17,
26,
31,
7,
-10,
-5,
5,
12,
2,
29,
28,
47,
-10,
-13,
15,
40,
40,
-17,
17,
-40,
-12,
30,
8,
-2,
40,
27,
17,
3,
50,
24,
21,
-17,
-34,
-1,
8,
-17,
-48,
-20,
-64,
10,
-3,
24,
-37,
10,
-68,
-40,
-15,
80,
-8,
-39,
-27,
7,
27,
37,
-14,
-84,
-9,
-17,
24,
-23,
12,
53,
19,
6,
42,
-63,
-35,
-25,
-55,
0,
0,
11,
21,
27,
36,
-6,
-10,
-37,
35,
7,
1,
-29,
-10,
-14,
-21,
-29,
-31,
26,
-49,
5,
0,
-12,
8,
30,
37,
57,
9,
-17,
-53,
41,
10,
-21,
-23,
-32,
57,
33,
-11,
-1,
-4,
25,
-34,
25,
-45,
-5,
-19,
-12,
-3,
-13,
-28,
-10,
-31,
-16,
-6,
49,
0,
42,
68,
59,
28,
-42,
-21,
-18,
-1,
-22,
-29,
33,
5,
4,
-10,
57,
-45,
37,
-22,
-9,
-3,
9,
-14,
-3,
29,
1,
33,
7,
-24,
-67,
34,
-8,
8,
-14,
17,
-10,
-27,
46,
43,
-57,
-23,
-10,
-37,
25,
2,
-1,
-21,
-54,
-18,
15,
-22,
-2,
-28,
34,
49,
1,
-53,
-11,
-29,
-5,
55,
0,
45,
-61,
0,
-11,
-21,
-36,
11,
75,
15,
58,
-19,
-35,
7,
-11,
24,
1,
2,
-10,
5,
-15,
11,
0,
12,
11,
-8,
-59,
-21,
-8,
1,
39,
-18,
-13,
-37,
-35,
-24,
68,
-48,
-31,
-9,
66,
14,
6,
16,
-38,
-28,
-23,
-13,
-8,
17,
0,
41,
27,
-18,
-15,
-21,
15,
36,
10,
-65,
4,
-25,
27,
23,
7,
3,
13,
-53,
16,
-19,
-1,
-4,
29,
-8,
32,
-9,
0,
-63,
17,
-23,
-15,
8,
15,
0,
-13,
16,
-28,
-5,
0,
56,
-66,
-40,
46,
-22,
-9,
-27,
31,
48,
17,
-30,
-29,
98,
-9,
-6,
34,
-3,
14,
-43,
24,
-44,
0,
-25,
31,
12,
-25,
29,
9,
17,
12,
-49,
0,
25,
47,
28,
-18,
-57,
-8,
0,
16,
-26,
-4,
-16,
1,
-8,
-72,
-23,
50,
0,
21,
-24,
-17,
14,
-79,
-13,
-19,
-12,
6,
-9,
6,
29,
21,
21,
26,
2,
-32,
-10,
-36,
22,
25,
0,
9,
-26,
-6,
14,
21,
-8,
-18,
-17,
6,
19,
34,
39,
-4,
14,
-38,
-15,
-37,
25,
-17,
24,
15,
-14,
57,
8,
-49,
27,
-10,
-13,
-33,
-17,
-42,
-4,
20,
-30,
12,
-3,
-26,
-5,
3,
-35,
6,
31,
22,
6,
-7,
-47,
27,
-14,
-38,
-62,
16,
45,
-69,
-24,
-48,
1,
-4,
36,
-21,
11,
31,
20,
-10,
0,
-1,
-22,
17,
-12,
12,
-3,
23,
39,
60,
-5,
20,
-8,
-42,
-25,
31,
-40,
8,
11,
29,
27,
-6,
36,
-31,
17,
60,
-29,
-11,
-4,
1,
-13,
-35,
-47,
-27,
-12,
26,
36,
60,
30,
3,
-19,
-56,
-6,
21,
60,
24,
31,
2,
-38,
-19,
46,
34,
-36,
-7,
-8,
6,
1,
22,
-34,
21,
11,
-26,
-11,
-20,
-5,
-1,
-12,
-36,
20
] |
Per Curiam.
Three cases have been consolidated on appeal in this matter. In case No. 75590, plaintiff-appellant Florence Humphrey appeals as of right from a December 6, 1983, Oakland County Circuit Court order granting the appellees’ motion for accelerated judgment. In case No. 75589, she appeals by leave granted from a decision of the Oakland County Circuit Court entered on July 22, 1983, affirming an order and opinion of the Oakland County Probate Court rendered on March 5, 1980. And in case No. 53322, she appeals as of right from the probate court’s allowance of respondent-appellee Detroit Bank & Trust’s second annual account and from the denial of her motions to set aside the account and for a rehearing. Appellant contests the allowance of fiduciary fees, attorney fees and certain disbursements.
On August 5, 1955, Charles E. Humphrey established a revocable inter vivos trust (hereinafter Thirty Trust), which consisted primarily of stock in two businesses owned by Humphrey and his brother. Humphrey controlled the trust as trustee and his brother Howard and his Ohio attorney were co-trustees. Humphrey named himself as the life beneficiary, with his two sons, Charles E. Humphrey, Jr., and John N. Humphrey, as the remaindermen. Thirty-two days later Charles Humphrey brought an action for divorce against his then-wife Betty. On February 1, 1957, a decree of divorce was entered in Wayne County Circuit Court. On or about June 1, 1957, Charles Humphrey married his second wife, Florence Humphrey, the appellant in these cases.
In 1973, Charles Humphrey amended the Thirty Trust by naming Detroit Bank & Trust Company as successor trustee in the event of his death. He also executed a will naming appellant as the sole beneficiary under the will and designating the same bank as executor.
On December 22, 1976, Charles Humphrey died and Detroit Bank & Trust Company assumed its duties as both the executor of Mr. Humphrey’s estate and trustee for the Thirty Trust. On May 23, 1978, the first annual account of the bank as executor and a petition for allowance were filed in probate court. The account did not include as estate assets the inter vivos trust set up by the deceased or three GMAC bearer notes, totalling $112,000. On May 30, 1978, appellant filed objections to the first annual account based upon alleged violation of the rule against perpetuities by the Thirty Trust. The objection stated that the trust was invalid and that the trust corpus should be included as part of the estate assets. On June 27, 1978, the probate court conducted a hearing on the first account. At that time, Mrs. Humphrey’s attorneys orally withdrew their objections. On July 13, 1978, an order was entered allowing the first account as stated.
After obtaining the services of her current counsel, Florence Humphrey filed a petition in the probate court to remove the bank as executor of the decedent’s estate, to set aside the first annual account, and to hold the Thirty Trust invalid. She contended that the bank should be removed as executor based on a conflict of interest in the bank’s acting as executor of the estate and as trustee of the Thirty Trust. She requested the first annual account be set aside, again arguing that the three GMAC bearer notes should be included in the estate inventory, not as Thirty Trust assets.
Pursuant to the petition filed by Mrs. Humphrey, numerous hearings, including evidentiary hearings, and depositions were conducted concerning the request to remove the bank as executor of the decedent’s estate. Moreover, the probate court incorporated depositions taken of the bank’s trust officer, Martha Runnels, into the record. As one example of the alleged conflicts of interest, Mrs. Humphrey claimed that the executor should have sought to have the GMAC notes included in the estate assets. Martha Runnels testified that the GMAC notes were correctly included as trust assets because the notes were derived from prior trust notes that had been "rolled over” by Charles Humphrey on their expiration date. Mrs. Runnels’ determination was concurred in by her supervisor, William Penner.
Another reason alleged for removal of the bank as executor was that the bank was not acting properly in its handling of an IRS audit of the federal estate tax return. The IRS had indicated in March, 1978, that it was conducting an audit and informed the bank that it felt that the marital deduction on the estate return was overstated and therefore the tax submitted was deficient by approximately $30,000. The bank, however, felt that the IRS was wrong in its position and, instead of paying the alleged deficiency, asked its attorneys to contest it with the IRS.
At approximately the same time that the hearings on the petition for the bank’s removal as executor were being conducted, the bank filed motions in the probate court contending that the allowance of the first account was res judicata as to the later-raised issues of the validity of the Thirty Trust and the lack of inclusion of the GMAC notes in the estate and that summary judgment should be granted against Mrs. Humphrey’s claim that the Thirty Trust was invalid. After examining the briefs of both parties, Oakland County Probate Court Judge Barry M. Grant ruled in an opinion and order of March 5, 1980, that there were no conflicts of interest in the bank’s acting as both executor of the estate and trustee of the Thirty Trust; that Mrs. Humphrey’s pleadings failed to state a cause of action regarding the alleged invalidity of the Thirty Trust; that the allowance of the first account was res judicata as to the inclusion of the GMAC notes in the trust assets; and that the GMAC notes were properly included in the trust as trust assets. Appellant appealed the denial of her petition to this Court, but we dismissed her appeal because the orders were not "final orders” and appealable as of right. In re Humphrey Estate, 107 Mich App 778; 309 NW2d 722 (1981).
Pursuant to our prior decision that the probate court order was not appealable to this Court as of right, appellant appealed to the Oakland County Circuit Court, where, on August 12, 1983, the probate court’s order was affirmed. Case No. 75589 is an appeal from the circuit court’s affirmance of the probate court’s order of March 5, 1980.
In the meantime, on December 18, 1978, appellant had filed an action in Oakland County Circuit Court, seeking to void the Thirty Trust. In her second amended complaint, appellant alleged that the trust was illusory in nature in that there was improper consideration, that the trust was a mere agency agreement, that it was testamentary in nature and did not comply with the statute of wills, and that it was a fraud on her to deprive her of her statutory share of her deceased husband’s estate. She also alleged that, since the stated purpose of the trust was a desire of the grantor to preserve control of the family-owned businesses within the grantor’s direct lineal descendents, the purpose of the trust came to an end because the grantor, Mr. Humphrey, sold the stock of the family-owned businesses. On February 20, 1979, defendants moved for accelerated judgment, pursuant to GCR 1963, 116.1(5), claiming that the allowance in the probate court of the first account of the executor of the decedent’s estate, after objections thereto were withdrawn by Florence Humphrey, precluded her from contesting the validity of the Thirty Trust. After denial of this motion and several subsequent motions (to be discussed infra), the lower court eventually granted the motion for accelerated judgment on December 6, 1983. Appellant appeals as of right from the grant of accelerated judgment (No. 75590).
Meanwhile, the saga continued. On April 16, 1978, appellee (the bank) filed a petition for allowance of the second annual account, the subject of case No. 53322. Appellee requested approval for payment of certain disbursements and fees, including the following:
(1) $400 to Farquharson & Pointon, Certified Public Accountants, for tax services;
(2) $1,500 to the Detroit Bank & Trust Company for services as executor;
(3) $16,117.50 to Evans & Luptak, attorneys for the estate, for legal services rendered; and
(4) $169.83 as reimbursement for disbursements made by Evans & Luptak.
The account also showed that appellee had paid a tax deficiency of $750.56 and $70.71 interest on that deficiency. Appellant filed objections to the second account, challenging the executor’s refusal to list the GMAC bearer notes as inventory of the estate, the payment of the tax deficiency and interest, and the payment of all accountant fees, attorney fees, and executor fees.
On April 22, 1980, a hearing was held on appellee’s petition. The only witness called to testify was William Penner, vice-president of the personal trust department of Detroit Bank & Trust Company. Following his testimony that he had assisted in the preparation of the second annual account and that it accurately stated the disbursements and receipts of the estate, appellee moved for allowance of the account. Appellant then cross-examined Penner extensively concerning appellant’s objections to the account.
On May 13, 1980, the probate court entered an order approving the second annual account, but disallowed $200 in attorney fees and $145 in disbursements. Approval of a $400 accounting fee was held in abeyance pending submission of a copy of the invoice for the court’s examination. The record on appeal contains a letter dated May 1, 1980, from appellee’s attorney, including an attached invoice for the accounting fee; however, it does not contain an order approving the $400 fee. On August 8, 1980, the probate court denied appellant’s motion to set aside the second annual account and for rehearing and, on August 22, 1980, appellant filed her claim of appeal with this Court.
No. 75589
Appellant first argues that appellee Detroit Bank & Trust should have been removed as executor of the decedent’s estate for reasons of conflict of interest and wrongdoing. Appellant reasons that, as both executor of the estate and trustee of the Thirty Trust, there is no way by which the bank can avoid being involved in a conflict of interest. Appellant further asserts that the bank has breached its fiduciary duty as executor by unilaterally assigning the GMAC bearer notes to the trust account, by not seeking to have the Thirty Trust declared invalid (thereby recovering the assets of the trust for the decedent’s estate), and by not seeking to have the law firm that drew up decedent’s will reimburse the estate for any tax deficiencies that arose due to the ambiguity of the will itself.
Section 574 of the Revised Probate Code governs removal of a fiduciary. It states in pertinent part:
"If a fiduciary resides out of this state or, after due notice by the court, neglects to render his account and settle the estate according to law or to perform any order of the court or absconds or otherwise becomes unsuitable or incapable to discharge the trust, the court may remove the fiduciary by an order therefor following hearing * * *.” MCL 700.574; MSA 27.5574.
It is appellant’s contention that appellee bank is "unsuitable or incapable” due to a conflict of interest.
As the permissive language of the statute suggests, the question of whether a fiduciary should be removed is one entrusted to the discretion of the probate court. Grand Trunk W R Co v Kaplansky, 270 Mich 135, 137; 258 NW 423 (1935); Breen v Kehoe, 142 Mich 58, 60; 105 NW 28 (1905). Accordingly, the lower court’s decision will not be reversed absent an abuse of discretion.
In this case, the bank is both executor (now known as personal representative) of the decedent’s estate and trustee of the Thirty Trust. In its opinion of March 5, 1980, the probate court resolved this issue as follows:
"In this case at hand, the bank did not commingle the trust assets with the probate estate assets; and, in fact, was diligent in separating both types of assets into different and distinct entities. * * *
"The petitioner alleges that the bank committed a wrongdoing by placing three (3) GMAC notes in the trust estate rather than in the probate estate; however, it is important to recognize that the aforesaid three (3) notes were not registered in the decedent’s name and were found in the decedent’s safe deposit box, which was registered in the name of the decedent’s trust and business; thus, the said box was not registered at the time of the decedent’s death in the decedent’s name personally or individually. It is significant that the decedent chose not to register the notes in his name or place the same in an envelope with his name upon the said container nor to indicate in any manner that the notes were joint property, nor did he ever tell Florence Humphrey that the notes should go to her upon his death. She testified that she and her husband never discussed the notes or that type of business. Hence, there is no evidentiary basis to place the said three (3) notes in the decedent’s probate estate; therefore, the allegation that the placing of the same in the trust is without merit as it pertains to wrongdoing. In fact, if the bank placed the notes in the decedent’s probate estate, that act would have constituted a negligent act upon the bank.
"In reviewing the testimony of the petitioner, it is significant to discover that she never testified that the notes, to the best of her knowledge, were in the decedent’s own name. The petitioner testified as follows, which substantiates that the three (3) notes do not belong in the decedent’s probate estate; Florence Humphrey testified that she did receive the inventory and that in response to the question: 'Were the GMAC notes listed on the inventory of the probate estate?’ She answered 'no’. The widow testified that, as far as she knew, the GMAC notes 'were not of the probate assets’. In addition, Florence Humphrey stated to this Court that she 'never saw the particular notes before your (my) husband passed away nor did he ever discuss (the) notes with her before he passed away’.
"There was absolutely no proof shown in this matter that there was any wrongdoing on the part of the bank; and, at best, the petitioner was attempting to draw inferences, which were not substantiated by testimony or evidence; therefore, there are no grounds, such as any wrongdoing, to remove the Detroit Bank & Trust Company as the fiduciary; and,
"The petitioner’s request to remove Detroit Bank & Trust as such is denied.”
A trust accountant, Jack Farquharson, informed Martha Runnels that the GMAC notes were derived from prior trust notes that had been "rolled over” by Mr. Humphrey on their expiration date. Appellant herself knew of no reason why the notes should be treated as estate assets except that she thought they were to be used for a vacation. Given the above, we cannot say that the lower court abused its discretion in refusing to remove the bank as personal representative on the basis of the bearer notes. We find the lower court’s conclusion to be supported by the evidence.
Appellant also alleges wrongdoing on the part of appellee with respect to the Internal Revenue Service’s finding of a tax deficiency and the failure to seek to have the Thirty Trust invalidated. Testimony at the hearings, however, made it clear that the bank was protesting the alleged tax deficiency found by the IRS.
With respect to appellant’s assertion that the bank improperly failed to seek invalidation of the trust, the probate court stated:
"This court has considered all possible defects which might invalidate the turst [sic], including those relied upon by petitioner. First, it is important to analyze whether the grantor had the ability to create such a trust. There was no showing that, at any time, the grantor of said trust was not of sound and disposing mind and memory. All proofs consistently indicate that he was fully competent and that he was a successful businessman who understood the affect [sic] of creating such a trust.
"There was no evidence of fraud or duress in the creation of the trust. A person has the fundamental right to create a trust if they [sic] so desire, even to the dismay or hardship of their [sic] spouse.
"The said trust operated for over twenty (20) years. The petitioner has not proven that the trustee committed any wrongdoing. * * *
"* * * It is quite apparent that on the face of the trust, the said instrument is valid and properly constructed. The petitioner alleges that the trust should terminate upon the diminution of assets. There is no provision in the trust which would indicate that the trust become void or dissolved because assets are removed or reduced. The Thirty Trust was not illusory nor invalid; the grantor created this trust before he married the petitioner herein, Florence Humphrey, and he had many years and many opportunities to modify, revoke, or change the trust at any time to provide for Florence Humphrey. Obviously, he chose not to do so, which was certainly his fundamental right to dispose of his property as he saw fit.
"The trust does not violate the rule against perpetuities. The trust does not contain any provision which terminates the instrument during the decedent’s lifetime and certainly he was cognizant of the trust provisions and the operation of the same since he continually received income during his life from the trust, thus indicating he was certainly aware of the said instrument.”
Again, we find that this is supported by the evidence and that there is nothing to indicate that the trust was invalid. Accordingly, we cannot say that the lower court abused its discretion in refusing to remove the bank as personal representative on the basis of wrongfully failing to contest the validity of the trust. This claim of error does not require reversal.
Nevertheless, while we believe that no actual conflict of interest existed to the extent that it made the bank "unsuitable or incapable” of performing its duties, and that no wrongdoing occurred because the bank did challenge the IRS and there was little doubt that the bearer notes belonged to the trust, not the estate, we direct the bank at this time to make an election between the trust and the estate. Inasmuch as all of the assets involved belong to either the trust or the estate and any fees incurred must be assessed against either one or the other, we believe that the bank’s dual capacity must inevitably lead to an actual conflict. Thus, even though we find that the court’s resolution of the alleged instances of wrongdoing by the bank does not required reversal, this dual capacity should not persist. We find little merit to the bank’s argument that appellant’s remedy is to file a suit for damages against the executor. She may have that remedy as well, but it does not preclude removal of the bank as executor. See §574 of the Revised Probate Code, reproduced above.
Next, appellant argues that the executor’s motion for summary judgment was not made pursuant to any probate court rule, but was based on the general court rules, which do not govern probate proceedings. The probate court’s opinion of March 5, 1980, in addition to refusing to remove the bank as executor of the estate, also found that the Thirty Trust was valid and that appellant was barred from raising the issue of the GMAC notes by the doctrine of res judicata.
We initially note that appellant’s contention concerning the probate court’s authority to grant accelerated and summary judgment has already been decided adversely to her position. This same issue was before this Court in In re Easterbrook Estate, 114 Mich App 739, 747; 319 NW2d 655 (1982). There, we held that a probate court can summarily dismiss a claim if there is an obvious statutory disability and it cannot be overcome. This includes the power to "grant motions for accelerated and summary judgments in accordance with GCR 1963, 116 and 117 [because such] is an inherent power of that court that is necessarily implied by the nature of our judicial system”.
Appellant also argues that summary judgment was improperly granted because a genuine dispute of material fact existed. We note, however, that a judgment granted for the reason of res judicata should be rendered through accelerated judgment, not summary judgment. Thus, if the probate court properly found that the doctrine of res judicata applied, accelerated judgment would be proper, GCR 1963, 116.1(5), and we may treat the probate court’s order as one granting accelerated judgment. Robinson v Emmet County Road Comm, 72 Mich App 623, 637; 251 NW2d 90 (1976). Thus, whether such was properly granted depends upon whether the doctrine of res judicata applies to the instant case. We first turn to the ruling below as it relates to the first annual account and the GMAC bearer notes.
Appellant disputes the application of res judicata because, according to her, the first annual account filed by appellee as executor did not disclose the disposition of the GMAC notes, so that she is not barred from seeking recovery of the notes by her failure to object to the account. We disagree.
Annual accounts by a fiduciary are required by MCL 700.563; MSA 27.5563. The finality of an annual account is dealt with in subsection 4 of MCL 700.564; MSA 27.5564, which states:
"Subject to the right of appeal, and except in case of fraudulent concealment or fraudulent misrepresentation on the part of the fiduciary, the order of the court allowing an account of a fiduciary shall be final and conclusive against all persons in any way interested therein who are legally competent at the date of the order and against all other persons who are or may become interested therein although legally incapacitated to act in their own behalf if the persons designated by law or supreme court rule are eligible to be served on their behalf, assented to the account, have been heard thereon, or given notice of hearing thereon, as provided in this act.” (Emphasis added.)
Appellant relies upon Green v Old Kent Bank & Trust Co, 3 Mich App 654; 143 NW2d 581 (1966), for the proposition that res judicata may not be applied here to matters not actually addressed in the prior proceeding on the first annual account. Green, supra, dealt with an estate accounting where the defendants attempted to raise the bar of res judicata in a subsequent proceeding to construe provisions of the underlying will. This is based upon MacKenzie v Union Guardian Trust Co, 262 Mich 563; 247 NW 914 (1933), which held that a probate court’s order allowing the accounts did not constitute a construction of the will. Here, however, the issue sought to be barred relates directly to the account, and, therefore, is clearly distinguishable from Green, supra, and MacKenzie, supra. This case is more closely analogous to McDannel v Black, 270 Mich 305, 310-313; 259 NW 40 (1935), in which the Supreme Court held:
"The general principle of res judicata applies to the orders of the probate court on final accounts of executors and administrators. * * *
"A settled account is conclusive between the parties unless some fraud, mistake, omission or inaccuracy is shown (Hager v. Thomson, 1 Black [66 U.S.], 80, and Eccard v Brush, 48 Mich.3); and if the party seeking relief was aware of the facts at the time of the settlement of the account, then the subsequently sought relief will be refused. * * *
"Res judicata applies not only to issues which were determined on their merits, but also to matters which the parties had an opportunity to present for adjudication on the merits. * * *
"To hold, as we do, that the judicial settlement of an executor’s account bars the later assertion of claims for compensation for extraordinary services when the executor is able to show no justifiable excuse of the original omission of the item, will, we hope, help preserve that degree of conclusiveness of the adjudication of final accounts which is necessary for the prompt settlement of estates and yet not unreasonably restrict the presentation of just claims by executors.”
Accordingly, where, as here, the matter is one concerning items that should have been included in the accounting, a prior settling of the account will bar such later action. MacKenzie, supra, and Green, surpa, do not require a different result. They simply observe that the settling of an account may not be a bar to construction of the provisions of the underlying instrument. This is in keeping with the purpose of the accounting.
In this case, appellant’s original objection to the first annual account, filed May 25, 1978, made no mention of the GMAC notes, but was based on the alleged invalidity of the Thirty Trust. That objection was withdrawn and she did not object to the GMAC notes not being included in the annual account until her amended petition of February 20, 1979, eight months after the order allowing the account was entered. It is undisputed that appellant was aware of the existence of the GMAC notes. She was present when they were discovered in her late husband’s safety deposit box. She also testified that she knew the GMAC notes were not considered part of the decedent’s estate and she expressed no dissatisfaction with the absence of the GMAC notes from either the probate inventory or the annual account. With any diligence whatsoever, the absence of the GMAC notes from the first annual account could have been contested in a timely fashion. It was not. We hold that the probate court (and the circuit court in upholding the probate court’s ruling) properly applied the doctrine of res judicata.
In his order and opinion of March 5, 1980, Judge Grant did not find that the annual account was res judicata as to the validity of the Thirty Trust. Instead, he decided the issue of the validity of the trust on the merits in addressing appellant’s claims of wrongdoing, and thus whether the first annual account was res judicata as to the validity of the Thirty Trust will not be addressed.
Appellant also suggests that the probate court was without jurisdiction to determine the validity of the Thirty Trust, and, therefore, res judicata may not be applied with respect to the trust because no lawful judgment entered. This is the essential argument raised in case No. 75590, to which we now turn.
No. 75590
Appellant argues that the circuit court erred in granting appellees’ "fourth” motion for accelerated judgment. She asserts that the court rules allow only one motion for accelerated judgment to each party and that the doctrine of res judicata was erroneously applied inasmuch as the probate court had no jurisdiction to determine the validity of the Thirty Trust so that its opinion cannot be res judicata to the claim. She also suggests that the parties were not the same in both actions.
On December 18, 1978, appellant filed suit in Oakland County Circuit Court, seeking to invalidate the Thirty Trust. On February 7, 1979, she amended her complaint. On February 20, 1979, the defendant bank and remaindermen moved for accelerated judgment pursuant to GCR 1963, 116.1(5), claiming that the allowance of the first account of the executor of the decedent’s estate in the probate court precluded appellant from contesting the validity of the Thirty Trust. This motion was denied without prejudice. Thereafter, on May 30, 1979, appellant filed her second amended petition in Oakland County Probate Court, requesting that the probate court declare the Thirty Trust invalid. As a result, on December 4, 1979, the bank and remaindermen filed a second motion for accelerated judgment pursuant to GCR 116.1(4), asking that the circuit court action be dismissed because of the petition pending in the probate court. This motion for accelerated judgment was denied as premature.
After Judge Grant of the Oakland County Probate Court rendered his opinion and order of March 5, 1980, granting the trustee bank’s motion for summary judgment, the defendant bank and remaindermen filed the third motion for accelerated judgment based upon GCR 1963, 116.1(5). The motion alleged that Judge Grant’s decision upholding the validity of the Thirty Trust was res judicata as to appellant’s circuit court action seeking to have the trust declared invalid. On May 21, 1980, the circuit court ruled that it would not grant defendants’ motion at that time but would hold everything in abeyance until this Court ruled on the appeal from the order of March 5, 1980. After this Court decided that appellant’s proper avenue of appeal was in the Oakland County Circuit Court and the circuit court affirmed the probate court, the bank and the remaindermen renewed their motion. After a hearing, the circuit court granted their motion for accelerated judgment on December 6, 1983.
Appellant correctly notes that GCR 1963, 116.2 limits a party to one motion for accelerated judgment. However, the motion for accelerated judgment which was granted by the circuit court in the present case was based on a defense which had previously been unavailable to defendants, namely, res judicata. They raised the defense within a reasonable time after it became available to them and renewed the motion after the decision on appeal to the circuit court upholding the validity of the Thirty Trust.
GCR 1963, 13 states as follows:
"These rules are to be construed to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceedings which does not affect the substantial rights of the parties.”
To disallow the motion would not secure "a just” determination, nor would allowing it affect the substantial rights of the parties.
Moreover, the purpose of the one-motion rule is to "prevent the dilatory practice of postponing an answer on the merits by raising special defenses by motions seriatim”. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1984 Supp, p 114. The rule is also directed at precluding the moving party "from asserting such omitted defenses by motion”, i.e., it precludes raising new defenses omitted in the first motion for accelerated judgment. 1 Honigman & Hawkins, Michigan Court Rules Annotated, (2d ed), p 324. Here, an omitted defense is not being asserted. The same defense was raised each time. And there is no question of delaying tactics. Finally, defendants’ motions were denied without prejudice, held to be premature and held in abeyance, respectively, so that this was not a "fourth motion” in the true sense. For all these reasons, we find no error. Appellant was not prejudiced by a "fourth” filing.
Appellant next contends that res judicata was erroneously applied because the parties to the two actions are not the sáme. In the action to invalidate the Thirty Trust in probate court the respondent was Detroit Bank & Trust, as executor of the estate of Charles E. Humphrey, deceased. In her circuit court suit to have the trust declared invalid, Mrs. Humphrey named Detroit Bank & Trust as successor trustee of the Thirty Trust, as well as Charles E. Humphrey, Jr., and John N. Humphrey, beneficiaries and remaindermen of the Thirty Trust. However, the parties need only be substantially identical in order for res judicata to apply; that is, it applies to the same parties or their privies. Braxton v Litchalk, 55 Mich App 708, 717-718; 223 NW2d 316 (1974). Although in the two proceedings Detroit Bank & Trust was named in its two different fiduciary capacities, we are of the opinion that the parties were substantially identical in both the probate court and the circuit court proceedings to invalidate the Thirty Trust. And, it is beyond dispute that the same claim was raised in both proceedings.
Appellant’s final claim of error is that the probate court is without jurisdiction to decide the validity of the Thirty Trust. She argues that the former probate code governs the instant action and that it contained no provision granting jurisdiction to decide issues on the legality or validity of an inter vivos trust. She states that the Legislature granted such authority only by adoption of the Revised Probate Code, effective July 1, 1979, but that prior to this time no such authority existed.
The first question to be decided is whether the former probate court or the Revised Probate Code is applicable. Section 992(a) of the Revised Probate Code provides as follows:
"This act applies to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this act.” MCL 700.992(a); MSA 27.5992(a).
Although the first annual account was allowed on June 27, 1978, no court made a decision about the validity of the Thirty Trust until the probate court handed down its decision of March 5, 1980. There are only limited exceptions to the rule that the Revised Probate Code applies to pending proceedings as of the effective date. In re Cunningham Estate, 131 Mich App 251, 253; 345 NW2d 681 (1983). Because appellant’s probate court proceeding which resulted in the opinion and order of March 5, 1980, was pending on the effective date of the Revised Probate Code, and that opinion addressed the validity of the trust, the Revised Probate Code was applicable.
Moreover, Const 1963, art 6, § 15, provides that the probate court’s jurisdiction, powers, and duties shall be provided by law. The jurisdiction and power of the probate court is set forth in MCL 600.841; MSA 27A.841 as follows:
"(a) As conferred upon it under the revised probate code.
"(b) As conferred upon it under chapters 10, 11 and 12a of Act No. 288 of the Public Acts of 1939, as amended, being sections 710.21 to 712a.28 of the Michigan Compiled Laws.
"(c) As conferred upon it under Act No. 258 of the Public Acts of 1974, as amended, being sections 330.1001 to 330.2106 of the Michigan Compiled Laws.
"(d) As conferred upon it under this act.
"(e) As conferred upon it pursuant to any other law or compact.”
The Revised Probate Code, MCL 700.21; MSA 27.5021, vests the probate court with exclusive jurisdiction of:
"(c) Proceedings concerning the internal affairs of trusts including proceedings concerning the administration and distribution of trusts and the declaration of rights or the determination of other matters involving trustees and beneficiaries of trusts, including proceedings to:
"(i) Appoint or remove a trustee.
"(ii) Review the fees of a trustee.
"(iii) Review and settle interim or final accounts.
"(iv) Ascertain beneficiaries.
"(v) Determine any question arising in the administration or distribution of any trust, including questions of construction of wills and trust; instruct trustees, and determine relative thereto the existence or nonexistence of an immunity, power, privilege, duty, or right.” (Emphasis added.)
Finally, MCL 600.847; MSA 27A.847, a complementary amendment to the Revised Judicature Act, provides that the probate court has "the same powers as the circuit court to hear and determine any matter and make any proper orders to fully effectuate the probate court’s jurisdiction and decisions”. This, in conjunction with the probate court’s jurisdiction over any matter, including proceedings to construe a trust, which arises in the distribution of the trust, confers jurisdiction on the probate court to invalidate a trust. Accordingly, we hold that the probate court had jurisdiction over appellant’s claim that the trust was invalid and, therefore, res judicata was properly applied on the basis of the probate court’s order of March 5, 1980.
No. 53322
This appeal involves the second annual account and the allowance of certain fees. Appellant first argues that appellee introduced no evidence at the hearing in support of its claim for the $1,500 fiduciary fee and that the probate court refused to allow appellant to examine the appellee’s witness concerning the issues of fraud, negligence, and bad faith, precluding the appellant from demonstrating that the executor was not acting in the best interest of the probate estate and therefore was not entitled to the fee.
Under MCL 700.541; MSA 27.5541 (formerly MCL 704.33; MSA 27.3178[284]), a fiduciary is entitled to compensation for services and expenses. However, a fiduciary fee can be charged against an estate only where the services rendered were on behalf of and beneficial to the estate. In re Baldwin’s Estate, 311 Mich 288, 314; 18 NW2d 827 (1945).
At the hearing, appellant attempted to show that appellee was not acting in the best interest of the estate during the time period covered by the second annual account. Appellant pointed to the appellee’s opposition to her petition to have the Thirty Trust declared invalid and certain assets, such as the GMAC notes, included in the estate inventory. Appellant also attempted to show that appellee, because of its position as trustee of the Thirty Trust, favored the interest of the trust beneficiaries to the detriment of the appellant’s interest.
The probate court limited appellant’s examination on these matters, ruling that these issues had been resolved in the order of March 5, 1980, where it determined that there was no conflict of interest, the GMAC notes were assets of the Thirty Trust, and that the trust was valid. We agree with appellee that appellant should not be allowed to relitigate the issues determined by the order of March 5, 1980. And appellant’s objections to the fiduciary fee were based upon similar allegations, i.e., that the executor acted against appellant’s interest by "consulting with an adverse interest”. It was previously held that the GMAC bearer notes were not a proper asset, of the estate and that there was no actual conflict of interest. Appellant offered no further proof in opposition to the $1,500 fiduciary fee, aside from the claim that the fee was improper because of a conflict of interest.
Additionally, the former probate code which was in effect at the time the second annual account was submitted, MCL 704.33; MSA 27.3178(284), lends guidance. For an estate this size, the bank’s commission would have been set at over $4,000. Under these circumstances, in conjunction with the court’s finding that there was no conflict of interest and that the bank acted properly and not adversely to the estate, we cannot say that the lower court erred in allowing the fiduciary fee of $1,500 or in disallowing testimony on matters already determined. The court was "fully informed of the nature and extent of the services rendered”. In re Estate of Weaver, 119 Mich App 796, 800; 327 NW2d 366 (1982). We cannot say that a fee of $1,500 was not justified.
Next, appellant asserts that the probate court’s approval of the $16,117.50 in attorney fees and $400 in accountant fees, and payment of the $750 federal income tax deficiency, was an abuse of discretion and should be reversed because these fees were not incurred in the best interests of the estate. First, appellant contends that a portion of the attorney fee ($906.25), the accountant fee, and the income tax deficiency were incurred because of the negligence of appellee, its counsel, and its accountants, and that, second, the remaining portion of the attorney fee was incurred by appellee while counsel was representing appellee’s interest as trustee of the Thirty Trust or representing the Humphrey brothers. Appellant concludes that appellee did not sustain its burden of proving that these fees were incurred in the best interest of the estate by properly documenting the fees.
The probate court is authorized to approve reasonable compensation for services rendered by counsel for the estate. MCL 700.543; MSA 27.5543. However, attorney fees may be charged against the estate only where the services rendered were on behalf of and beneficial to the estate, Baldwin’s Estate, surpa. In order to ascertain the reasonable value of services to an estate, the court should consider the time spent, the amount involved, the character of the services rendered, the skill and experience called for in the performance of the work, and the results obtained. Becht v Miller, 279 Mich 629, 640; 273 NW 294 (1937); Weaver, supra. The standard of review applied by this Court to a probate court’s determination as to the amount of attorney fees to be awarded is whether the court abused its discretion. Weaver, supra; In re L’Esperance Estate, 131 Mich App 496, 501; 346 NW2d 578 (1984).
Appellant’s first contention is that the probate court abused its discretion by approving the payment of the 1976 tax deficiency and accountant and attorney fees resulting from the 1976 tax audit. We disagree. Appellee sustained its burden of proving that there was no negligence in the preparation of the tax returns. Appellant was also given the opportunity to call into court the attorney who performed these services and cross-examine him regarding the work done. This offer was declined at the hearing. Thus, the taxes, the accountant fees for the audit, and the attorney fees were properly charged against the estate. Baldwin’s Estate, supra, pp 301, 312-314.
Appellant also argues that the claim for the entire attorney fee of $16,117.50 was not properly documented. The original statement attached to the second account does not justify the allowance of the attorney fees. The statement contains no designation of the time spent in performing the claimed services, nor description of the subject matter, and no designation of who performed the services. Thus, the statements submitted by appellee did not give the probate court any means of determining the reasonableness of the time spent in performing the various legal services to the estate. See In re Kiebler Estate, 131 Mich App 441; 345 NW2d 713 (1984). However, at the hearing, appellee submitted a computer printout which it was directed to turn over to appellant. Furthermore, the probate judge noted on the record the time spent, the subject matter and the person performing the services indicated on the computer printout. While we do not have benefit of the computer printout, the lower court found the fees to be reasonable, billed at about $38 per hour. Information supporting the proper factors for consideration was given the court. We cannot say that the probate court abused its discretion. See Weaver, supra, pp 798-799.
Appellant also contends, however, that the evidence shows that much of the attorney fee was for services rendered to the appellee in its capacity as trustee of the Thirty Trust and to the Humphrey brothers. The parties agreed that appellee would submit to appellant whatever documents were desired regarding this matter. The record does not indicate whether anything else was requested or submitted. Accordingly, we cannot review this claim. Additionally, the parties agreed that attorney fees in the amount of $200 and disbursements in the amount of $145 relating to this claim would be disallowed. Since appellant stated agreement on the record, we find no error.
Appellant’s final contention, that the estate should not be charged with the attorney fees in curred for the defense of appellant’s petition to have appellee removed as executor, the GMAC notes included in the estate inventory, and the Thirty Trust declared invalid, has some merit. The probate court ruled that appellee had a right to defend itself and, thus, the attorney fees were properly chargeable against the estate. We agree. Since no conflict of interest or wrongdoing was proven by appellant, the attorney fees incurred by appellee to defend its position as executor are properly chargeable against the estate. Baldwin’s Estate, supra, p 314. However, that portion of the attorney fees which was incurred by appellee in defending appellant’s petition seeking inclusion of the GMAC notes in the estate and a declaration that the Thirty Trust was invalid are not properly chargeable against the estate, since they were not beneficial to the estate. The services did not increase or preserve the assets of the estate but, in fact, were detrimental to the estate and benefited the Thirty Trust beneficiaries. Therefore, that portion of the attorney fees was not properly chargeable against the estate. In re Brack Estate, 121 Mich App 585, 591; 329 NW2d 432 (1982).
Affirmed in part; reversed in part._
We note that while the attorney fees are not properly chargeable against the estate, this does not vitiate the validity of the fiduciary fees previously discussed. The fiduciary fee was ostensibly reasonable and involved other matters of management of the estate. A fiduciary is entitled to a "just and reasonable” fee, see § 541, whereas attorney fees must be based on "necessary legal services in behalf of the estate”. See § 543. Appellee’s fees incurred in defense of the petition seeking inclusion of the GMAC notes in the estate and a declaration that the Thirty Trust was invalid were not as a result of "necessary legal services in behalf of the estate”. Nor does disallowing this portion of the attorney fee indicate that there was a conflict of interest. Indeed, by disallowing such fees, we specifically avoid any conflict and resultant prejudice to appellant. This result merely confirms the propriety of the bank’s actions in determining that the GMAC notes were not estate assets and that the trust was valid, but recognizes that once these valid determinations were challenged, defense of such challenge was undertaken on behalf of the trust. | [
-12,
-7,
23,
1,
-21,
48,
25,
15,
52,
-34,
-32,
3,
20,
5,
-59,
-8,
-21,
53,
6,
-29,
9,
-9,
-27,
34,
-17,
3,
19,
3,
17,
-58,
-7,
-61,
-12,
2,
-22,
-6,
36,
-26,
19,
-24,
-42,
-60,
26,
-2,
-65,
10,
58,
-36,
5,
-39,
-26,
31,
2,
-2,
2,
-1,
-35,
-51,
-3,
-5,
4,
8,
51,
33,
40,
28,
42,
23,
5,
-34,
16,
0,
52,
-16,
15,
-64,
-17,
18,
-16,
-41,
29,
-32,
-15,
5,
-38,
-16,
-35,
45,
-24,
10,
-11,
-9,
-41,
-59,
-32,
7,
7,
-18,
48,
48,
-2,
-37,
47,
43,
0,
23,
6,
-7,
-9,
-18,
45,
-14,
12,
37,
6,
26,
-62,
-7,
-13,
6,
-28,
-9,
-8,
-13,
41,
18,
-23,
-3,
40,
49,
-19,
24,
-8,
1,
11,
-8,
-21,
-20,
-6,
-19,
58,
0,
19,
5,
41,
4,
12,
-45,
72,
5,
-29,
65,
13,
72,
28,
15,
-13,
22,
3,
48,
-1,
-2,
16,
27,
-14,
3,
-32,
27,
25,
5,
-17,
25,
-19,
-25,
-48,
35,
-9,
8,
-12,
44,
-26,
38,
48,
5,
18,
-20,
4,
-23,
-19,
5,
-34,
-20,
14,
28,
-28,
29,
31,
-9,
24,
27,
21,
-12,
28,
37,
13,
-80,
10,
-12,
-3,
-17,
5,
13,
21,
1,
-27,
-28,
-39,
-20,
-9,
23,
38,
22,
15,
-10,
-24,
0,
-21,
-39,
-55,
-1,
-4,
15,
0,
6,
-12,
43,
41,
42,
41,
18,
-3,
-10,
45,
4,
-49,
1,
9,
35,
-6,
27,
-27,
0,
-52,
17,
10,
19,
3,
0,
48,
-23,
-7,
25,
-57,
32,
13,
9,
-19,
0,
12,
9,
-20,
25,
51,
-37,
-4,
-37,
5,
37,
-9,
26,
2,
-10,
-25,
-8,
8,
15,
-38,
-12,
7,
53,
-5,
9,
43,
-33,
8,
-19,
-45,
-47,
-11,
4,
-29,
44,
24,
-4,
6,
8,
-8,
-51,
-29,
-15,
45,
27,
22,
1,
29,
-7,
-10,
0,
34,
-28,
40,
-1,
-10,
25,
-3,
-23,
7,
-38,
-5,
29,
-21,
34,
-11,
-13,
-27,
-16,
59,
-34,
-15,
-13,
31,
20,
32,
24,
25,
-30,
6,
-41,
18,
24,
-38,
-6,
5,
14,
7,
5,
48,
-21,
-44,
45,
11,
-1,
33,
-10,
3,
21,
-21,
29,
57,
0,
16,
2,
-17,
0,
15,
39,
-55,
12,
32,
-4,
-27,
7,
27,
21,
45,
-27,
-9,
27,
-17,
14,
-39,
-5,
30,
9,
-45,
13,
3,
17,
-32,
17,
12,
17,
-24,
23,
1,
51,
11,
-36,
-13,
9,
-25,
-25,
39,
16,
17,
-19,
64,
-41,
0,
36,
-14,
1,
-25,
-36,
-70,
18,
-17,
39,
-30,
-15,
-3,
32,
16,
-8,
43,
21,
-22,
-7,
-9,
26,
56,
46,
42,
3,
3,
32,
-28,
-51,
61,
34,
-6,
26,
-1,
-17,
-27,
-19,
11,
46,
-64,
-50,
55,
-23,
40,
17,
-22,
-17,
5,
32,
76,
3,
-26,
51,
-48,
-21,
-22,
-23,
14,
-9,
-22,
-51,
28,
41,
-13,
70,
-30,
20,
13,
-80,
-18,
-38,
0,
-23,
-14,
44,
0,
-13,
-64,
-27,
3,
-39,
20,
-9,
40,
-1,
4,
1,
-50,
-82,
-40,
0,
-26,
-33,
2,
52,
-22,
-7,
28,
9,
43,
25,
-6,
13,
8,
25,
12,
12,
20,
51,
53,
16,
-16,
22,
-13,
-27,
-37,
-23,
-9,
2,
-19,
7,
-28,
41,
-12,
17,
-32,
8,
-31,
-34,
-18,
-53,
-14,
-36,
-32,
-19,
59,
-26,
20,
-24,
-9,
-8,
-8,
17,
33,
-39,
21,
-41,
-25,
-72,
13,
7,
-19,
14,
19,
-8,
3,
25,
28,
19,
-51,
-16,
9,
-2,
-62,
-24,
-13,
50,
33,
15,
-30,
-27,
12,
2,
19,
-20,
-5,
10,
0,
-2,
33,
4,
42,
-32,
-39,
-21,
-22,
-37,
-58,
23,
17,
-85,
38,
8,
-24,
-2,
-13,
10,
-13,
-48,
19,
2,
-29,
29,
52,
0,
-6,
9,
37,
-13,
-18,
40,
28,
-24,
11,
-13,
-2,
1,
-11,
17,
-32,
-43,
-23,
62,
20,
4,
16,
-38,
32,
-48,
28,
-6,
2,
28,
-10,
4,
15,
-27,
74,
-21,
47,
-48,
21,
3,
-21,
26,
9,
26,
-28,
34,
31,
-14,
0,
-2,
32,
12,
27,
15,
-70,
24,
23,
16,
-48,
9,
-71,
13,
13,
-35,
17,
-12,
-31,
21,
0,
0,
-65,
-15,
-10,
5,
3,
55,
-12,
15,
-13,
34,
38,
44,
-44,
-43,
-72,
10,
-18,
17,
-73,
-25,
-36,
-36,
-36,
-13,
5,
-31,
8,
-36,
-21,
-55,
-46,
8,
-29,
-13,
15,
-14,
-46,
-13,
17,
-46,
23,
-17,
12,
-20,
9,
18,
0,
30,
2,
2,
17,
-1,
-36,
-4,
-21,
34,
-19,
27,
35,
52,
8,
22,
-24,
-46,
7,
-14,
7,
-20,
-33,
4,
18,
4,
-11,
19,
-28,
20,
-19,
-17,
14,
25,
12,
39,
-30,
-33,
-21,
-6,
59,
-2,
0,
-6,
49,
15,
60,
-40,
29,
-13,
8,
47,
-4,
-54,
27,
-28,
20,
40,
19,
5,
40,
-37,
-9,
43,
22,
39,
-9,
-1,
-44,
-9,
-13,
5,
-18,
-18,
-13,
0,
-4,
17,
-46,
11,
-62,
13,
-4,
19,
8,
-4,
-46,
33,
-31,
25,
-6,
39,
10,
-31,
-8,
6,
-13,
-11,
77,
34,
14,
-74,
-5,
-17,
-53,
-32,
7,
42,
-1,
-10,
28,
-17,
-12,
-24,
6,
7,
21,
-6,
8,
9,
4,
20,
-22,
33,
-33,
-10,
-2,
-3,
-18,
-8,
18,
63,
-64,
24,
-54,
32,
9,
18,
55,
30,
-9,
-27,
-9,
-36,
-18,
-37,
-16,
25,
48,
12,
-20,
3,
-16,
3,
-28,
-27,
8,
-9,
-55,
-49,
0,
-17,
-14,
-29,
-43,
6,
-27,
36,
16,
41,
13,
29,
-19,
12,
-41,
-19,
-7,
26,
21,
-2,
-18,
-3,
-10,
-44,
-46,
-28,
-11,
-41,
22,
4,
-48,
4,
21,
8,
-53,
-47,
-42,
16,
16,
-7,
30,
33,
18,
11,
-21,
25,
-12,
38,
3,
12,
-26,
-55,
-20,
-77,
19,
28,
-32,
46,
-2,
-1,
-15,
29,
-15,
6,
4,
4,
41,
-50,
51,
-36,
0,
51,
-38,
-56,
-38,
-50,
-18,
-20,
23,
28,
0,
-17,
25,
-23,
2,
39,
-54,
-42,
-21,
-44,
-5,
-27,
58,
6,
30,
-38,
0,
-4,
67,
18,
13,
0,
6,
18,
49,
13,
-2,
-17,
-7,
34,
-35,
-23,
3,
44,
-30,
39,
7,
0,
12,
9,
43,
-5,
-27,
-47,
-5,
-3
] |
Bronson, P.J.
This case arises from plaintiff’s attempt to secure insurance premiums owed by defendants. Plaintiff, an insurance agency, filed its complaint seeking $14,878.38 owed by defendants, residents of Florida, for insurance premiums, costs, interest and attorney fees. Count III of plaintiffs complaint requested the trial court to issue a prejudgment writ of garnishment against Associated Aviation Underwriters, Inc., which owed defendants refunds on several unrelated insurance policies. An affidavit from plaintiff’s attorney was included, stating that defendants were not subject to in personam jurisdiction in Michigan, that he was apprehensive of plaintiff’s losing the $14,878.38 if a writ did not issue, and that plaintiff had no other remedy against defendants. On the basis of this affidavit, the court issued a writ pursuant to MCL 600.4011(3); MSA 27A.4011(3).
Defendants entered a special appearance to contest jurisdiction and to quash the writ. Defendants argued that if the insurance contracts were executed in Michigan, the Michigan long-arm statutes provide for in personam jurisdiction and therefore the prejudgment garnishment statute would not apply. Alternatively, defendants argued that if the court did not have in personam jurisdiction, the prejudgment garnishment statute was unconstitutional. The trial court found that no in personam jurisdiction existed over defendants and denied defendants’ motion to quash the writ. Defendants now appeal by leave granted. We reverse.
MCL 600.4011(3); MSA 27A.4011(3) states:
"A writ of garnishment may be issued before judgment only as provided in this subsection. Upon ex parte application showing that the person against whom the claim is asserted is not subject to the judicial jurisdiction of the state or, after diligent effort, cannot be served with process as required to subject him to the judicial jurisdiction of the state, a copy of the writ of garnishment shall be served upon the person against whom the claim is made in the same manner as provided by rules of the supreme court for service of process in other civil actions in which personal jurisdic tion over the defendant is not required. Upon rendition of judgment in the principal action, the obligation or property garnished shall be applied to the satisfaction of the judgment.”
Under the terms of this statute, prejudgment garnishment is available only where the court issuing the writ of garnishment does not have personal jurisdiction over a defendant. Personal jurisdiction may be obtained over an out-of-state defendant under the Michigan long-arm statutes to the farthest extent permitted by due process. Sifers v Horen, 385 Mich 195; 188 NW2d 623 (1971). Due process requires only that a defendant have certain minimum contacts with the state such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. International Shoe Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945); Kiefer v May, 46 Mich App 566; 208 NW2d 539 (1973). It is, therefore, only in the absence of minimum contacts that the prejudgment garnishment statute is applicable.
It is apparent that plaintiff in the instant case is seeking to obtain quasi in rem jurisdiction for its contract action by garnishing an obligation owed to defendants. In Shaffer v Heitner, 433 US 186; 97 S Ct 2569; 53 L Ed 2d 683 (1977), the Supreme Court held that quasi in rem jurisdiction may not be obtained in the absence of minimum contacts by a defendant with the forum state.
We hold, therefore, that MCL 600.4011(3); MSA 27A.4011(3) is unconstitutional in that it allows jurisdiction over defendants in derogation of the minimum contacts standard. The trial court’s orders are set aside and the writ of garnishment is dissolved. We remand to the circuit court to deter mine whether in personam jurisdiction exists and for further proceedings on plaintiffs contract action in accordance with that determination.
Reversed and remanded. | [
22,
-27,
-12,
-4,
33,
30,
31,
-59,
-26,
-10,
16,
-30,
-26,
16,
12,
3,
-15,
0,
25,
-22,
-65,
-36,
-2,
28,
5,
-59,
50,
8,
60,
-2,
-16,
14,
-12,
43,
-18,
-60,
-13,
-38,
-7,
23,
3,
-36,
33,
5,
-57,
-13,
-40,
5,
26,
-7,
0,
10,
-50,
16,
-59,
-9,
2,
17,
0,
5,
-61,
9,
36,
9,
-47,
7,
42,
67,
-1,
21,
34,
8,
73,
30,
23,
-31,
-47,
-27,
-7,
6,
24,
-23,
-5,
-10,
39,
27,
-32,
-1,
-11,
2,
-54,
26,
-62,
-24,
1,
14,
31,
10,
60,
42,
-14,
41,
-12,
28,
-31,
32,
11,
-51,
-27,
28,
25,
9,
9,
-36,
-8,
-30,
-12,
14,
0,
0,
-32,
-30,
28,
14,
13,
0,
21,
-37,
1,
51,
77,
10,
-5,
0,
3,
10,
33,
-26,
-11,
-29,
30,
-10,
14,
-33,
11,
19,
94,
-53,
-55,
-9,
11,
-2,
-16,
19,
17,
6,
-19,
-13,
36,
-44,
30,
20,
-24,
15,
25,
-47,
19,
16,
42,
-12,
27,
-31,
10,
-63,
-6,
-9,
26,
-33,
-23,
-8,
-9,
56,
20,
-51,
8,
-28,
-11,
-50,
-34,
-46,
12,
6,
6,
60,
20,
50,
70,
26,
21,
16,
0,
-75,
-6,
-33,
-15,
1,
62,
-25,
-39,
36,
-20,
-64,
-52,
-33,
-40,
7,
55,
5,
9,
-3,
-25,
-6,
-3,
-27,
8,
-1,
-73,
-8,
-7,
1,
-13,
-67,
27,
60,
-32,
-4,
-7,
14,
57,
16,
-34,
37,
13,
-22,
63,
51,
-18,
17,
-5,
-10,
16,
2,
16,
-12,
-24,
-21,
0,
11,
-61,
7,
-55,
32,
-71,
-40,
-10,
-13,
31,
-6,
1,
-42,
-40,
6,
14,
14,
32,
-38,
-27,
39,
4,
6,
16,
42,
-33,
-2,
-28,
5,
20,
3,
43,
30,
-10,
8,
-28,
35,
-4,
-11,
15,
-47,
17,
46,
4,
34,
41,
40,
-25,
-66,
3,
-45,
-41,
-22,
16,
49,
-47,
-19,
11,
0,
2,
-20,
24,
-54,
17,
46,
-9,
1,
-20,
-27,
14,
-31,
-11,
-20,
-18,
-55,
-17,
29,
25,
-77,
-28,
14,
8,
0,
-11,
10,
-24,
29,
-39,
56,
26,
5,
21,
-5,
-18,
4,
-37,
19,
12,
-34,
44,
13,
-40,
35,
1,
27,
-30,
-37,
29,
50,
-11,
22,
-16,
53,
0,
-7,
-25,
-39,
-59,
-31,
-66,
11,
-27,
28,
1,
-58,
-4,
11,
21,
-33,
-45,
-20,
-20,
-53,
-24,
-3,
28,
14,
-5,
17,
-53,
-31,
-13,
37,
16,
50,
14,
8,
-29,
29,
22,
-33,
-30,
-23,
-9,
-43,
19,
45,
4,
21,
7,
23,
57,
-67,
9,
39,
-15,
-58,
0,
-56,
25,
45,
-17,
10,
24,
37,
15,
-16,
35,
22,
-59,
-50,
53,
47,
-15,
15,
-18,
-36,
0,
-49,
-15,
23,
4,
-6,
57,
-12,
-24,
16,
-65,
-16,
-29,
-22,
6,
-44,
12,
-53,
-7,
35,
-12,
-11,
15,
45,
35,
-50,
-9,
-2,
-80,
34,
-57,
3,
-26,
13,
-26,
11,
-44,
0,
-6,
-51,
-4,
10,
9,
17,
-14,
-20,
-17,
-33,
-16,
40,
0,
-45,
-53,
4,
-13,
-25,
46,
28,
47,
25,
70,
-28,
-42,
-23,
-42,
14,
-41,
-7,
52,
13,
28,
22,
-12,
-39,
37,
-18,
-65,
-14,
-69,
-25,
-10,
9,
-30,
32,
28,
39,
-12,
-28,
61,
-40,
-19,
15,
-6,
32,
14,
22,
42,
64,
32,
48,
11,
35,
-45,
-30,
5,
-60,
-25,
-46,
47,
-25,
-25,
8,
4,
-44,
54,
-12,
4,
12,
12,
3,
-2,
0,
6,
-2,
0,
-32,
-37,
19,
31,
-3,
-25,
28,
8,
-23,
-31,
-27,
-56,
17,
17,
-47,
-7,
13,
-40,
-8,
24,
-53,
-3,
37,
11,
-19,
10,
6,
-13,
-25,
46,
15,
18,
34,
-44,
0,
-4,
-33,
32,
28,
16,
7,
23,
46,
-16,
9,
24,
-13,
15,
-29,
16,
4,
28,
-8,
57,
26,
-8,
5,
-21,
-11,
-39,
21,
53,
3,
12,
-29,
-15,
-16,
-44,
40,
-38,
-16,
-5,
27,
11,
34,
-6,
-31,
35,
-35,
-18,
-24,
-41,
81,
-27,
17,
21,
-36,
2,
50,
1,
35,
-22,
-22,
-43,
6,
7,
23,
20,
-24,
49,
49,
-7,
-25,
-19,
18,
21,
2,
-36,
60,
-8,
-1,
-48,
18,
-1,
35,
22,
18,
-55,
-7,
29,
-23,
-10,
57,
-35,
7,
42,
-19,
-32,
39,
8,
-8,
-15,
32,
-21,
18,
-40,
7,
-27,
-52,
71,
11,
-31,
12,
46,
15,
28,
57,
7,
19,
-38,
7,
-8,
-68,
-5,
-10,
-2,
-9,
47,
-33,
-9,
24,
16,
18,
25,
34,
-58,
38,
38,
-20,
-65,
56,
44,
6,
50,
-2,
-29,
15,
11,
55,
56,
21,
-10,
22,
9,
42,
-30,
20,
12,
-18,
27,
39,
-4,
50,
-4,
22,
-16,
-23,
-9,
-4,
0,
-24,
-40,
-1,
41,
-24,
10,
22,
20,
-11,
-62,
-56,
41,
25,
-12,
-18,
-19,
-14,
-19,
-53,
-9,
10,
1,
-26,
3,
-11,
-21,
1,
42,
16,
-18,
7,
6,
-8,
12,
-8,
-5,
22,
1,
-1,
10,
-27,
-12,
-28,
30,
4,
0,
15,
-43,
3,
-47,
-34,
-2,
55,
-43,
19,
-10,
-25,
-19,
-41,
-53,
32,
12,
-25,
-21,
-5,
-29,
40,
9,
3,
-21,
-19,
41,
-36,
-39,
20,
37,
64,
-36,
2,
-21,
-23,
-1,
-69,
-1,
42,
22,
-22,
0,
-15,
-42,
14,
33,
4,
-6,
-12,
20,
2,
-9,
-9,
-12,
-15,
2,
59,
19,
11,
51,
12,
55,
-23,
15,
-19,
-3,
35,
-16,
-6,
-26,
33,
-2,
-11,
-69,
38,
89,
0,
-7,
15,
40,
-8,
-14,
-13,
46,
-16,
-19,
-18,
0,
-3,
-7,
10,
7,
-19,
-37,
40,
14,
39,
-27,
2,
21,
17,
4,
1,
-28,
34,
6,
19,
-13,
-36,
-41,
23,
32,
46,
29,
11,
9,
-58,
-67,
42,
21,
-56,
22,
-40,
-28,
30,
-50,
15,
24,
-23,
-34,
26,
1,
5,
-18,
46,
-24,
-37,
16,
43,
-63,
0,
0,
-23,
-13,
17,
-13,
26,
-23,
-9,
65,
3,
29,
-19,
-18,
16,
38,
-28,
-24,
-46,
-24,
-22,
53,
20,
-12,
34,
0,
-29,
-3,
19,
47,
-7,
-32,
-22,
-10,
-8,
20,
10,
22,
0,
41,
20,
23,
4,
-59,
36,
4,
3,
20,
-9,
-9,
13,
-1,
-16,
44,
-2,
11,
43,
44,
-19,
-4,
45,
-39,
7,
-35,
-22,
31,
-1,
-37,
21
] |
Per Curiam.
Defendant Wayne County Road Commission appeals as of right from an order of the Wayne County Circuit Court issuing a writ of mandamus. The third and fourth paragraphs of the judgment and order read as follows:
"It is further ordered, adjudged and decreed, that the defendant, Wayne County Road Commission, has the duty to keep in reasonable repair all improved county roads located within the plaintiif-townships so that said roads are reasonably safe and convenient for public travel; and
"It is further ordered, adjudged and decreed that a writ of mandamus be and the same hereby is issued compelling the defendant Wayne County Road Commission to continue its dust palliative program in the same level and frequency and on the same roads, as it existed prior to December 15, 1981.”
Defendant road commission contends that the issuance of a writ of mandamus ordering the continuation of the dust palliative program was improper. We agree and strike the fourth paragraph of the order.
The controversy first arose when the road commission, on December 15, 1981, notified township authorities in Wayne County that the scheduled dust palliative program for local gravel roads would be discontinued. The road commission’s dust program, which had been operative for more than 20 years, involved three yearly applications of calcium chloride to local gravel roads. The chloride solution was applied to minimize the dust level on local county roads. The program was terminated because of the increasing expense involved, the increasing demand for service, and the necessity to redirect resources to the county primary road system.
After the road commission notified the townships that the dust program would be terminated, the Wayne County Department of Health began issuing violation notices to the townships for violations of Article VI, § 6.6 of the Wayne County Air Pollution Control Regulations. They were issued for failure to eliminate the escape of contaminants from the unpaved roadways. The violation notices informed the townships that they were responsible for determining why the violations occurred and informed them that they were to take the necessary steps to prevent the further escape of contaminants. The township officials were also contacted by citizens and police agencies, who complained about the hazardous driving conditions on the unpaved roads. Users of the unpaved roads had problems with visibility — clouds of dust rising from the unpaved roads impaired their vision.
The townships initiated an action against the road commission, alleging that the road commission was responsible for violations of the Environmental Protection Act of 1972 and raising claims of negligence and nuisance. Additionally, the townships prayed for declaratory relief and a writ of mandamus. Specifically, the townships asked the court to compel the road commission to properly maintain the townships’ roads by continuing the dust program.
At the evidentiary hearing, a great deal of evidence was presented to the effect that the dust is harmful to health and that it impedes safety by impairing drivers’ vision. Testimony also established that dust palliative programs are part of road maintenance. However, a maintenance engineer for the Michigan Department of Transportation testified that dust palliative programs were a low priority in terms of necessary maintenance objectives, even though they were clearly part of safety and maintenance.
After the hearing, the trial court found that plaintiffs had standing to sue, that there was no adequate remedy at law and that money damages would not make the plaintiffs whole. The court found that the burden of collecting taxes to maintain the dust program should not be placed on the townships, and ordered the road commission to continue the program.
The preliminary issue raised by the road commission is whether plaintiffs have standing to bring this suit. The threshold question is whether they have an interest in the outcome of the lawsuit sufficient to invoke the controversy-resolving power of the court. Saginaw Public Library Board v District Court Judges, 118 Mich App 379, 385; 325 NW2d 777 (1982), lv den 417 Mich 974 (1983).
The plaintiff townships have an interest in the outcome of this litigation sufficient to invoke the controversy-resolving powers of the judiciary. Plaintiffs received citations from the Wayne County Department of Health for the failure to eliminate the escape of contaminants from the unpaved roads and were informed that they were to take the necessary steps to prevent further escape of the contaminants. Thus, the road commission’s failure to maintain the roads in a reasonable condition with respect to dust levels has had a direct impact on the plaintiff townships. Plaintiffs have asserted a sufficient stake in the outcome of this controversy to seek a writ of mandamus to compel the road commission to maintain the unpaved roads in the townships.
Defendants next argue that the issuance of a writ of mandamus ordering the continuance of the dust program was improper, because the road commission has no specific duty to operate the program.
"Mandamus lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of such duty. Miller v Detroit, 250 Mich 633; 230 NW 936 (1930). The specific act sought to be compelled must be of a ministerial nature, that is, prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v Ottawa Circuit Judge, 343 Mich 440; 72 NW2d 146 (1955), Bills v Grand Blanc Township, 59 Mich App 619; 229 NW2d 871 (1975), State Board of Education v Garden City School District, 62 Mich App 376; 233 NW2d 547 (1975).” (Footnote omitted.) Oakland Bd of County Road Comm’rs v State Highway Comm, 79 Mich App 505, 509; 261 NW2d 329 (1977), lv den 402 Mich 907 (1978).
It is undisputed that the road commission has a broad, general duty to keep all county roads in reasonable repair so that they shall be reasonably safe and convenient for public travel. MCL 224.21; MSA 9.121 provides in pertinent part:
"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.” See Arrowhead Development Co v Livingston County Road Comm, 413 Mich 505, 512; 322 NW2d 702 (1982).
However, the methods employed by the road commission in maintaining the roads are left to their discretion.
MCL 224.19; MSA 9.119 provides:
"(1) The board of county road commissioners may grade, drain, construct, gravel, shale, or macadamize a road under its control, make an improvement in the road which it considers best, and may extend and enlarge an improvement. The board may construct bridges and culverts on the line of the road, and repair and maintain roads, bridges and culverts.
"(3) The construction, improvement, and maintenance of roads, bridges, and culverts, shall be in accordance with plans and specifications furnished or approved by the county highway engineer, who shall have supervision of the construction. The county road commissioners shall have all the authority in respect to the roads, bridges, and culverts which is vested in highway officers in townships, including the right to condemn gravel for road purposes and to petition the county drain commissioner for an outlet drain as provided in section 8 of chapter 15.”
This statutory language, providing that the commission "may” make improvements they consider best, illuminates the discretionary authority of the road commission. The statute does not list any specific methods which must be employed by the road commission in keeping the roads safe and convenient for public travel. Thus, the road commission has no clear and specific legal duty to control the dust on county roads via the specific program involved.
The trial court may order the road commission to maintain the gravel roads, which it has a clear duty to do. MCL 224.21; MSA 9.121. Evidence of the safety and driving hazards posed by unacceptable dust levels established that this duty of maintenance was not discharged by the road commission. Since this duty lies with the road commission, the County Department of Health was in error in issuing violation notices to the townships for failure to eliminate the escape of contaminants from the unpaved roadways. Such violation notices in the future are to be directed to the road commission.
Because the methods used to maintain gravel roads and reduce their dust levels are within the discretion of the road commission, the issuance of a writ of mandamus ordering the speciñc dust program was improper. Oakland Bd of County Road Comm’rs, supra. Thus, the fourth paragraph of the trial court’s judgment and order is stricken. If the road commission can discharge its duty of maintenance by other means, then it is free to do so under the statutes.
We do not address the road commission’s remaining arguments relating to the trial court’s ordering the continuance of the dust program.
Remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction. | [
-3,
-1,
27,
10,
-7,
24,
-15,
-17,
-26,
31,
25,
-14,
56,
-26,
-11,
-65,
1,
29,
-6,
72,
-28,
48,
30,
26,
-14,
2,
-18,
31,
-37,
27,
-54,
-53,
7,
10,
-15,
-6,
7,
36,
41,
23,
-17,
-40,
-17,
-16,
-26,
-59,
32,
42,
3,
0,
-16,
57,
-8,
-31,
-64,
-12,
-35,
-8,
0,
-35,
-18,
17,
-12,
9,
24,
42,
-31,
24,
17,
49,
-10,
3,
-3,
-24,
44,
0,
20,
-26,
-32,
20,
-27,
-11,
34,
49,
-24,
23,
-12,
-23,
27,
11,
-14,
-51,
-26,
-20,
16,
43,
-23,
-40,
-2,
-35,
-1,
34,
36,
32,
29,
-6,
33,
-3,
-47,
3,
42,
-36,
-13,
-44,
33,
48,
-9,
16,
59,
-5,
10,
-41,
7,
-19,
-26,
-33,
43,
-18,
-44,
2,
44,
-4,
16,
5,
13,
18,
-4,
-14,
17,
13,
-13,
-8,
21,
38,
7,
-6,
2,
-31,
16,
-45,
-36,
-9,
35,
1,
16,
-9,
44,
-35,
22,
-22,
33,
63,
5,
-23,
-47,
-23,
-40,
32,
-30,
33,
58,
21,
0,
-33,
20,
-27,
-8,
46,
3,
57,
-26,
-16,
-22,
18,
3,
-17,
-4,
-29,
-11,
-65,
59,
-22,
57,
-24,
22,
17,
26,
44,
-3,
-40,
-23,
3,
2,
-3,
-16,
0,
-35,
-13,
-26,
19,
12,
-1,
14,
-10,
11,
-10,
4,
-34,
2,
26,
-1,
0,
38,
-36,
-14,
0,
-16,
-17,
-4,
-17,
45,
-33,
27,
6,
-23,
-16,
42,
20,
-20,
32,
-24,
16,
-10,
0,
-1,
57,
-30,
-8,
4,
3,
23,
-33,
-18,
-37,
-9,
-55,
20,
-6,
27,
-16,
59,
45,
5,
14,
19,
8,
-3,
-3,
-10,
-24,
-22,
16,
6,
-71,
-64,
31,
43,
-16,
10,
-9,
23,
-55,
-26,
-32,
36,
83,
-15,
-26,
-24,
-29,
2,
-21,
-28,
80,
-19,
33,
41,
-35,
-16,
-10,
-14,
16,
-54,
-27,
25,
-10,
-63,
-26,
25,
28,
31,
-33,
20,
21,
-34,
5,
4,
-21,
49,
-16,
-26,
40,
-7,
-12,
-50,
1,
5,
-9,
14,
-25,
5,
7,
44,
17,
42,
-1,
11,
26,
-52,
-5,
30,
6,
-6,
43,
-4,
-15,
18,
0,
6,
-3,
11,
34,
37,
38,
-51,
-24,
-26,
-51,
-32,
64,
-10,
-5,
-10,
-2,
12,
6,
13,
50,
-34,
5,
-8,
-7,
32,
1,
-3,
-11,
-10,
-4,
37,
-5,
22,
-20,
12,
-17,
-11,
11,
-55,
20,
-46,
-22,
-19,
-66,
-34,
25,
-30,
0,
43,
5,
8,
63,
-43,
2,
-43,
64,
46,
0,
2,
-8,
3,
-16,
-65,
-21,
-8,
-5,
35,
35,
53,
23,
45,
-31,
24,
38,
36,
-72,
-11,
-51,
13,
17,
30,
70,
1,
-1,
12,
8,
-7,
16,
-33,
-57,
17,
-20,
-21,
10,
15,
-21,
-25,
-16,
12,
12,
14,
-18,
36,
52,
-8,
-22,
-3,
51,
-22,
30,
9,
-25,
-3,
-16,
-12,
-42,
-2,
18,
-10,
30,
36,
-27,
-61,
45,
-2,
20,
-15,
-46,
-5,
-10,
4,
6,
33,
29,
-64,
-11,
44,
-42,
31,
13,
-67,
22,
-2,
-43,
-3,
-16,
45,
10,
-31,
-12,
15,
21,
29,
-3,
-38,
53,
-49,
-6,
5,
25,
-31,
-2,
-10,
-21,
15,
37,
2,
63,
35,
-11,
8,
-8,
-28,
-22,
-10,
-18,
32,
39,
-9,
-7,
-15,
-6,
25,
-24,
11,
-10,
37,
34,
-24,
3,
-27,
-21,
22,
16,
-32,
-2,
13,
-59,
-21,
12,
13,
-15,
-20,
0,
-41,
-42,
-11,
-3,
-25,
11,
11,
-1,
-54,
0,
3,
3,
33,
18,
-18,
-9,
43,
27,
-7,
-3,
23,
-28,
31,
67,
-24,
-5,
-40,
-12,
-7,
-28,
-32,
22,
22,
-10,
37,
5,
11,
-46,
-25,
-4,
28,
-11,
14,
-7,
11,
-22,
36,
-30,
0,
-40,
10,
3,
14,
7,
8,
-16,
-18,
-18,
-2,
-52,
-95,
0,
-21,
38,
-14,
28,
43,
-8,
-39,
-5,
2,
2,
15,
1,
-10,
10,
-4,
44,
-38,
-5,
-8,
-4,
53,
-47,
10,
33,
-3,
2,
-47,
-3,
7,
-28,
46,
-28,
7,
35,
-1,
54,
0,
55,
-6,
-40,
-21,
19,
48,
-23,
-11,
-20,
25,
-21,
-12,
-28,
-36,
-10,
-9,
33,
-9,
0,
-2,
17,
12,
-33,
-32,
-27,
-13,
-11,
31,
5,
-9,
25,
-13,
-48,
-62,
-11,
-5,
54,
-1,
-39,
-15,
1,
-53,
27,
-36,
-2,
-5,
-4,
8,
15,
-17,
82,
-33,
57,
-63,
14,
32,
0,
4,
-30,
-71,
-37,
-8,
30,
-11,
7,
13,
21,
0,
-8,
21,
-51,
-47,
-18,
-30,
-33,
-10,
-26,
-43,
22,
9,
30,
-9,
-31,
47,
1,
41,
0,
-27,
1,
34,
-18,
12,
3,
-10,
-17,
53,
11,
-49,
-18,
-13,
4,
-34,
-10,
0,
3,
26,
10,
3,
9,
56,
-33,
14,
22,
-3,
-64,
3,
1,
5,
36,
-11,
52,
18,
-10,
-9,
-13,
-42,
-1,
-34,
-18,
-64,
2,
42,
0,
-12,
-42,
-30,
-35,
-9,
-5,
22,
-13,
34,
-34,
12,
2,
2,
40,
21,
-30,
65,
68,
8,
23,
-18,
11,
-52,
-13,
1,
39,
9,
78,
60,
11,
56,
15,
-15,
59,
-37,
21,
31,
-29,
24,
-8,
-8,
-3,
-2,
-39,
26,
29,
29,
-26,
-5,
23,
-11,
11,
16,
6,
5,
-51,
20,
-27,
4,
-32,
-23,
19,
-34,
16,
3,
64,
-18,
-14,
-16,
-15,
38,
55,
-8,
-37,
3,
-33,
46,
17,
-27,
-52,
-11,
0,
-49,
-23,
27,
-8,
9,
0,
-19,
47,
-20,
-38,
-29,
-56,
-4,
-24,
-10,
-28,
38,
9,
5,
-33,
-20,
1,
17,
26,
31,
17,
-61,
-4,
-2,
13,
1,
-4,
13,
-59,
1,
0,
44,
-24,
-19,
4,
11,
13,
6,
13,
-61,
-23,
-10,
4,
-30,
-24,
38,
5,
-12,
-1,
22,
25,
10,
-8,
-55,
1,
-68,
1,
4,
3,
-2,
-29,
3,
-8,
2,
-38,
-15,
-52,
52,
-71,
36,
-8,
-2,
23,
-5,
0,
-9,
-24,
6,
15,
21,
-26,
6,
0,
-38,
-4,
-14,
7,
24,
0,
-18,
-1,
38,
0,
-13,
-1,
-35,
7,
-47,
49,
-5,
26,
-13,
31,
-32,
-25,
-2,
45,
27,
13,
4,
-50,
69,
39,
-52,
9,
15,
15,
-34,
-15,
17,
56,
35,
-35,
14,
22,
-48,
24,
-3,
32,
48,
4,
46,
6,
61,
31,
7,
-13,
4,
53,
0,
8,
-13,
-5,
15,
3,
0,
-27,
-10,
21,
-2,
-12,
-11,
5
] |
McDonald, C. J.
This is a suit to recover past due instalments on a land contract involving the sale of a vacant lot. The plaintiffs, who were the owners, listed the lot for sale with Albert Brothers, realtors. It was sold to the defendants by Howard Jacobson, a salesman in their employ. The sale price was $900. There is no question as" to the amount due on the contract. The defense is that the defendants were induced to purchase the lot by the fraudulent representations of Mr. Jacobson as to value and his promise to resell it for them within six months at a profit of at least $50; that Jacobson’s promise to resell was ratified by Albert Brothers to whom' defendants made their payments; that though the property was not-sold as agreed they continued to make payments for two years relying on the statement of Albert Brothers that they required more time to carry out the promise which their salesman had made and that when they became convinced that the property was not to be resold, they rescinded the contract and tendered it to Albert Brothers for cancellation. These claims which are denied by the plaintiffs comprise the issue involved on the trial. At the conclusion of the proofs the court directed a verdict in favor of the plaintiffs. The defendants have appealed,
Passing the contention of fatal variance between defendants’ pleading and proofs which is not without merit, we will dispose of the issue as framed by the testimony.
The theory of' the defendants’ testimony is that there was fraud in misrepresenting value and a breach of contract to resell. As to representations of value, Mr. Van Dam testified:
“He told me he had a lot that had been sold for $1,200, and that there was $900 still due- on it, and it was a wonderful buy. # # #
“Q. What did he say the value of it was?
“A. $1,200.”
It is the plaintiffs’ contention that this alleged statement of value, if untrue, was not a false representation but a mere opinion which cannot be made the basis of an action for fraud. We do not agree with this contention.
“The rule that expressions of opinion do not constitute actionable fraud * * * which is a rule subject to exceptions (see French v. Ryan, 104 Mich. 625), is applicable only when the opinion stands by itself as a distinct thing.” McDonald v. Smith, 139 Mich. 211.
In the instant case the opinion that the lot was worth $1,200 does not stand by itself as a distinct thing. It was accompanied by the statement that it had sold for $1,200. The latter was a statement of fact evidently advanced in support of the-opinion. But, conceding that false representations of value were made as claimed by the defendants, we think as. a matter of law they are barred by long delay in asserting them as. a defense to. this action on the contract. The testimony is, undisputed that not until the commencement of suit nearly five years after the contract was executed, did they make any claim of fraudulent representations. The only complaint they made was that Mr. Jacobson had breached his promise to resell the property and on that ground alone they claimed the right to rescind. Mr. Van Dam so testified:
“I told Mr. Albert Mr. Jacobson would sell that lot for us inside of six months, and we expected him to live up to that. * * *
“I told him we couldn’t’ put any more money in it and keep on putting money in it, and that when I bought it from Mr. Jacobson, he had agreed to sell it for me in six months, and every time they needed more time. They told me that. They told me they needed more time. They never told me that they did not intend to live up to this agreement. * * * I told him I wouldn’t pay any more money. I had the contract with me. I told him I was not going to make any more payments because they did not live up to their end of it.
“Q. Did you offer the contract to him?
“A. I offered the contract back. I was willing at any time to turn the contract back on their not living up to this agreement. * * *
“Q. But up to the time you made this last payment, did you at all times rely upon this agreement?
“A. Yes, sir.
“Q. That Mr. Jacobson had made to you?
“A. Yes.
“Q. And you made these payments upon the strength of that?
“A. Yes, sir.”
The defendants’ claim of fraud comes too late. They are barred by their laches from asserting it as a defense to an action on the contract.
The promise to resell the property within six months, if made, did not constitute fraud. There was no evidence from which a jury could say that it was made without any intention to keep it or as part of a scheme to defraud. It was a mere contractual obligation and was so regarded by the defendants. Because of its breach they sought to rescind the contract. Neither Mr. Jacobson nor Albert Brothers had authority to make such a promise. Authority to sell does not carry authority to repurchase. Not only was there no authority to bind the plaintiffs by the agreement to resell, but it was contrary to the express provisions of the written contract which provided that “statements or representations made by salesmen not embodied herein shall not be binding on the first party.”
The court did not err in ruling that there was no question for the jury and directing a verdict in favor of the plaintiffs.
The judgment is affirmed, with costs to the plaintiffs. .
Clark, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
8,
32,
5,
2,
19,
-25,
54,
18,
-48,
68,
39,
-13,
35,
25,
-9,
-6,
26,
28,
21,
-27,
-27,
-56,
-4,
30,
-26,
-14,
26,
-57,
0,
32,
-8,
1,
-22,
-6,
20,
31,
11,
7,
20,
0,
32,
8,
19,
-43,
13,
0,
-10,
-57,
36,
36,
35,
-19,
29,
4,
-12,
-36,
-46,
26,
-8,
-1,
-9,
-47,
14,
-14,
16,
-29,
3,
42,
21,
10,
-22,
11,
20,
15,
8,
-16,
0,
-4,
4,
-38,
-21,
-45,
62,
32,
0,
33,
3,
-59,
19,
10,
-30,
-9,
15,
-2,
5,
18,
38,
26,
-6,
4,
8,
9,
-35,
26,
-20,
3,
-47,
-37,
-18,
33,
12,
-14,
36,
-29,
-29,
-32,
-5,
-11,
-18,
-47,
-16,
-10,
14,
-23,
-19,
30,
20,
-3,
-26,
1,
16,
31,
-63,
18,
-13,
-9,
2,
-21,
10,
-10,
2,
34,
-27,
-44,
-27,
40,
17,
-14,
-41,
-36,
-47,
-35,
-12,
31,
0,
-57,
11,
-31,
0,
-86,
51,
-24,
-12,
0,
-13,
14,
-3,
-29,
-38,
-29,
29,
-47,
-49,
-54,
12,
0,
39,
12,
-39,
-41,
-3,
-1,
26,
-10,
-50,
-37,
0,
-6,
-15,
3,
40,
-3,
-10,
12,
0,
30,
-42,
37,
22,
-13,
-49,
-39,
3,
-23,
-10,
-32,
3,
6,
-12,
22,
-57,
6,
-5,
-27,
-13,
10,
-7,
-40,
15,
-44,
5,
-15,
-40,
48,
18,
-35,
58,
26,
14,
10,
-24,
26,
12,
-25,
-15,
-32,
68,
22,
2,
12,
6,
-32,
-19,
-18,
-8,
50,
-11,
0,
38,
38,
-38,
-46,
-27,
9,
-29,
0,
-35,
45,
-52,
-1,
8,
29,
-13,
0,
-13,
-24,
6,
-28,
-20,
21,
31,
-18,
-5,
24,
-2,
-10,
-64,
7,
-8,
4,
5,
-21,
8,
4,
-15,
27,
9,
84,
-15,
-33,
13,
9,
26,
-51,
43,
-32,
-4,
-18,
43,
-22,
-4,
-29,
29,
-24,
-10,
-31,
-17,
-32,
-15,
-25,
-1,
-2,
-14,
-9,
-11,
-4,
-24,
-3,
66,
-10,
33,
-9,
23,
38,
47,
-17,
37,
-27,
-36,
0,
35,
9,
-5,
21,
33,
-17,
18,
-27,
-15,
13,
26,
27,
-39,
-2,
32,
52,
-4,
-13,
-34,
15,
-11,
-34,
-30,
38,
15,
-13,
26,
21,
3,
28,
37,
19,
-1,
-30,
-24,
13,
-27,
-35,
7,
52,
7,
41,
-30,
26,
-4,
-16,
-41,
-30,
-44,
31,
-3,
-15,
15,
38,
60,
-54,
-34,
-64,
-41,
12,
-48,
-15,
-14,
45,
18,
-53,
-36,
-17,
20,
-42,
-17,
24,
-4,
-5,
-28,
17,
-4,
-32,
-12,
-1,
24,
-2,
2,
-22,
-1,
15,
31,
42,
-15,
-9,
41,
-11,
12,
6,
30,
-75,
46,
30,
-35,
28,
-31,
20,
4,
-47,
19,
31,
-35,
-8,
-25,
50,
-18,
6,
-41,
8,
33,
-36,
-24,
18,
-3,
5,
-9,
81,
-23,
15,
-26,
10,
51,
-63,
31,
-44,
27,
-44,
9,
-26,
5,
-37,
4,
-23,
1,
24,
50,
32,
16,
3,
-15,
28,
23,
-10,
-15,
-27,
-13,
11,
-2,
-33,
-20,
-2,
-76,
19,
-35,
-17,
12,
3,
3,
42,
-45,
-33,
-17,
0,
21,
7,
-2,
5,
10,
28,
22,
-18,
39,
-17,
38,
19,
-28,
-22,
16,
3,
13,
36,
53,
-2,
23,
34,
40,
-35,
-61,
-17,
-21,
0,
-11,
37,
10,
-4,
-3,
-11,
-14,
0,
-24,
-41,
22,
-4,
31,
13,
-32,
30,
-6,
29,
42,
42,
-8,
-2,
-1,
8,
23,
-64,
40,
67,
-17,
36,
12,
-17,
17,
-1,
-39,
63,
22,
-10,
85,
-33,
-1,
-9,
11,
-4,
-36,
-23,
62,
-9,
-20,
-48,
-7,
-34,
9,
41,
-31,
15,
-14,
-27,
-35,
49,
36,
44,
14,
28,
-14,
-15,
4,
-12,
5,
22,
-5,
-35,
-6,
4,
21,
-26,
-86,
-11,
0,
-55,
-30,
-42,
13,
6,
0,
47,
14,
19,
5,
6,
12,
-35,
5,
24,
44,
25,
-4,
-15,
-4,
8,
-21,
24,
-43,
43,
5,
-43,
-12,
-19,
28,
-4,
25,
9,
-70,
-33,
4,
6,
-21,
-1,
10,
4,
-26,
47,
-16,
-31,
-13,
33,
64,
23,
12,
5,
11,
-25,
44,
-40,
65,
0,
-52,
-31,
-34,
-32,
23,
-7,
58,
5,
6,
-12,
-8,
11,
16,
38,
9,
14,
21,
20,
17,
-50,
27,
10,
18,
-2,
0,
-11,
25,
21,
-33,
19,
10,
-5,
-1,
0,
39,
22,
16,
-2,
-8,
-1,
0,
19,
-10,
53,
-4,
-10,
-23,
13,
8,
38,
3,
-36,
-18,
74,
29,
49,
-43,
-29,
40,
-30,
12,
-53,
14,
-15,
54,
10,
-12,
1,
-17,
44,
-23,
-11,
-7,
56,
31,
-38,
-50,
-20,
-47,
-8,
16,
-13,
-13,
-28,
16,
22,
-24,
-24,
3,
19,
26,
18,
-13,
-19,
-56,
15,
-5,
-7,
9,
1,
-80,
-11,
3,
-13,
25,
-66,
-24,
-33,
-65,
-6,
-2,
3,
10,
20,
33,
47,
58,
10,
-28,
14,
-18,
56,
-31,
-11,
9,
15,
15,
50,
-8,
-13,
-11,
15,
-11,
-9,
27,
-4,
12,
-34,
-31,
6,
-7,
38,
-28,
6,
-36,
24,
26,
-31,
0,
-45,
-25,
-32,
-42,
21,
-9,
28,
-7,
-2,
6,
-13,
-28,
-13,
-25,
0,
33,
-4,
-23,
20,
38,
-43,
-22,
58,
0,
19,
-1,
-34,
-8,
-40,
-6,
-11,
-66,
45,
18,
-6,
-41,
29,
0,
-31,
-3,
24,
13,
-17,
-14,
-30,
-14,
7,
51,
29,
50,
-6,
-16,
24,
39,
-17,
5,
59,
6,
-2,
34,
35,
-18,
10,
35,
30,
1,
-39,
9,
3,
0,
16,
-44,
16,
11,
-23,
39,
-7,
-28,
29,
11,
1,
-41,
0,
-38,
-16,
-16,
-12,
42,
3,
10,
-10,
9,
-3,
37,
-2,
6,
38,
-5,
30,
26,
-32,
35,
-5,
-8,
13,
14,
-1,
7,
2,
11,
34,
-67,
-10,
41,
-36,
-26,
10,
19,
7,
-8,
21,
-2,
34,
17,
-26,
9,
-45,
-38,
50,
-14,
-37,
0,
39,
-55,
-22,
2,
-12,
-18,
16,
-34,
21,
35,
60,
-16,
53,
-45,
-71,
-38,
-66,
12,
-13,
3,
-29,
57,
17,
-2,
36,
-17,
-10,
9,
-1,
-35,
-55,
8,
-5,
19,
-10,
-40,
12,
53,
-13,
-14,
6,
58,
11,
-5,
9,
-24,
-3,
46,
11,
42,
29,
-28,
-6,
15,
15,
8,
-16,
0,
-2,
9,
-41,
4,
-7,
47,
-2,
14,
-19,
-46,
-10,
29,
10,
-6,
18,
34,
17,
39,
-3,
17,
9,
-7,
49
] |
Fead, J.
September 25, 1923, Ellen McElroy executed a real estate mortgage for $2,600 to plaintiff. Payment of the loan was guaranteed by the local organization provided for in the Federal farm loan act, the Pleasant Valley National Farm Loan Association. Plaintiff and the association are different entities.
Three semi-annual instalments of the loan, for September, 1924, and March and September, 1925, became delinquent, and the mortgagor abandoned the farm. Under such circumstances, if no other means are available to avoid loss to itself on its guaranty, the local association tries to ñnd a responsible purchaser to take the land and pay the mortgage. Accordingly, it approached defendant and negotiated a deal. On March 5, 1926, it delivered to defendant' a quitclaim deed from Mrs. McElroy. In the letter of delivery it stated that if defendant accepted the deed and signed an agreement to assume the mortgage, his first assessment would be on March 25, 1926. As part of the transaction defendant executed an undertaking to assume the delinquent instalments and insurance, $295.50, and pay them to the association on or before January 1,1927. He also executed the following instrument, upon which this suit is brought:
“Loan No. 30,020. Pleasant Valley N. F. L. A. agreement to assume mortgage.
“This is to certify that in consideration of the forbearance of the Federal Land Bank of St. Paul, a body corporate of the city of St. Paul, county of Ramsey, State of Minnesota, to declare a default and enforce the payment of all sums due and payable upon a certain mortgage executed and delivered to it by Ellen M. McElroy, widow, on the 25th day of September, 1923, and duly recorded in the office of the register of deeds in and for the county of Antrim, State of Michigan, in book 59 of mortgages on page 543-4, upon the conveyance to Samuel J. Nothstine, Mancelona, Antrim county, Michigan, of the prem ises upon which said mortgage constitutes a first lien, do hereby assume and agree to pay the same according to its tenor and that of the note accompanying it. The principal amount secured by this mortgage now is $2,587. It is further certified that the purchase price is $2,587 consisting of cash paid $-; second mortgage given for $-hereby acknowledge his personal liability therefor and agree to be subject to all terms, conditions, covenants and agreements in the said mortgage and the Federal farm loan act, approved July 17, 1916, by the Congress of the United States of America. Date farm was purchased March 5, 1926.”
Later, defendant paid the delinquent amount, but the testimony does not show to whom, and also paid plaintiff the subsequent mortgage instalments until September, 1929. For failure to pay the principal of such instalment, $84.50, and interest, and insurance premium of $63.25, plaintiff declared the whole debt due and commenced foreclosure by advertisement January 10,1931. At the sale on April 14th plaintiff bid in the property for $1,500. In September it commenced this suit at law on the above instrument to recover the difference between the amount due on the mortgage and the bid price and had directed verdict and judgment of $1,327.60.
The question is whether defendant’s agreement to assume and pay the mortgage debt was made with plaintiff. If not, plaintiff could not recover at law on the agreement. Tapert v. Schultz, 252 Mich. 39.
Plaintiff’s argument is that it must be held to be a party to the instrument because of the recital in the undertaking that defendant’s promise was in consideration of plaintiff’s forbearance, that plaintiff was the only party who could forbear, and it did forbear.
The argument overlooks certain facts and lack of evidence. There was no testimony that the associa tion acted for plaintiff in any respect, or that plaintiff had any part in the transaction in which defendant acquired the property, or that the instrument of assumption was to be delivered to plaintiff. The whole deal was conducted between defendant and the association. The latter was the moving party and acted in its own personal interest to save loss on its guaranty.
The record is wholly devoid of testimony that plaintiff, in fact, agreed to forbear enforcement of the mortgage for the delinquency. If any facts raise an inference that it did so agree, the inference is that it agreed with the association, guarantor of the debt. The inference arises, not only from the manner in which the deal was handled, but particularly from the fact that defendant agreed to pay the association, not the plaintiff, the delinquent amount. . This would indicate that the association had assumed responsibility for the delinquency under such arrangement with plaintiff and in such a way that it had a right to bargain for it. If so, plaintiff had nothing to forbear, as to defendant, and the recital in the instrument did not furnish a consideration by plaintiff for defendant’s promise to assume the mortgage.
The only agreement or promise of forbearance made known to defendant was that of the association, when, in the letter of delivery of the deed, it represented that the first assessment would be on March 25th. Upon the record as presented, it must be held that defendant’s engagement to pay the mortgage was made with the association, not with plaintiff, and the latter cannot recover at law thereon.
Judgment reversed, without a new trial.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
-19,
22,
12,
1,
-18,
31,
39,
47,
-15,
-18,
-18,
-11,
55,
18,
-53,
33,
19,
-39,
8,
-4,
-14,
-68,
-31,
-1,
20,
-4,
15,
-61,
20,
22,
-22,
18,
-60,
55,
-29,
-14,
-40,
-6,
8,
-37,
2,
17,
0,
-2,
18,
9,
-33,
-49,
29,
-6,
-12,
-60,
26,
4,
5,
-31,
-45,
34,
-32,
15,
52,
-58,
-32,
14,
-1,
5,
-13,
22,
29,
-9,
12,
-15,
-14,
-49,
54,
6,
15,
7,
-27,
-32,
-27,
-13,
67,
-8,
-38,
-25,
-27,
12,
25,
-28,
-78,
11,
22,
28,
-14,
7,
-24,
36,
6,
17,
-27,
-27,
0,
22,
-13,
-11,
-25,
-64,
-13,
1,
-9,
-13,
59,
8,
19,
-38,
-44,
25,
22,
30,
-28,
-41,
-29,
-49,
-12,
24,
-21,
-5,
-14,
-7,
45,
-47,
-7,
47,
-47,
-22,
2,
10,
46,
-20,
17,
18,
-19,
-31,
-3,
6,
-1,
-70,
0,
-7,
-29,
40,
22,
54,
16,
-39,
20,
-13,
11,
-23,
42,
-17,
0,
-14,
-47,
-37,
-11,
8,
14,
-30,
68,
40,
-43,
-17,
24,
-54,
49,
-18,
16,
6,
-69,
51,
-23,
-11,
-17,
-23,
12,
20,
7,
14,
4,
-62,
-25,
10,
-53,
38,
-50,
-22,
-19,
-10,
3,
-44,
16,
-9,
40,
-49,
-2,
-28,
30,
33,
-20,
-30,
-12,
30,
-38,
2,
10,
4,
14,
-11,
-20,
14,
-29,
30,
-10,
-79,
0,
-16,
44,
2,
-68,
9,
21,
35,
37,
-11,
52,
58,
12,
31,
-18,
-9,
25,
-9,
-28,
3,
11,
-44,
11,
14,
-40,
4,
0,
11,
-9,
39,
9,
12,
-27,
34,
14,
19,
19,
20,
-21,
-28,
-55,
-4,
-1,
25,
32,
-25,
12,
0,
-54,
-33,
-25,
-19,
-51,
-5,
70,
-16,
-40,
36,
26,
17,
22,
32,
-61,
-8,
6,
-15,
-27,
-37,
38,
-42,
-3,
-55,
54,
51,
-56,
-37,
-16,
-17,
-34,
-30,
-57,
-52,
-45,
-57,
19,
-24,
23,
-49,
4,
-30,
-13,
-37,
7,
-15,
19,
-17,
-3,
34,
5,
4,
35,
-34,
-83,
77,
-11,
-25,
-10,
86,
-21,
3,
30,
0,
-5,
-26,
57,
59,
0,
37,
18,
-11,
-31,
2,
10,
-1,
-24,
-1,
-15,
26,
-45,
-43,
24,
35,
-6,
46,
2,
35,
-29,
-2,
19,
35,
29,
-29,
-25,
44,
2,
45,
-1,
-25,
-17,
-5,
-4,
11,
-38,
32,
31,
-7,
21,
116,
40,
-49,
-21,
-32,
-47,
2,
-52,
-23,
-39,
16,
34,
-67,
47,
-2,
-73,
-52,
18,
49,
-19,
-48,
-42,
47,
2,
-38,
8,
22,
58,
4,
-10,
-4,
-1,
4,
37,
-20,
11,
15,
1,
10,
-4,
9,
37,
-11,
10,
-28,
-21,
17,
-27,
53,
-8,
6,
55,
-4,
-43,
50,
-39,
54,
90,
25,
36,
-12,
-11,
-5,
-11,
-18,
53,
-29,
16,
6,
-22,
15,
11,
23,
11,
-22,
5,
-96,
0,
-39,
16,
17,
-20,
-5,
8,
-23,
43,
37,
-5,
-10,
86,
-9,
22,
-11,
26,
4,
-47,
20,
-42,
-16,
20,
-14,
-1,
-26,
-63,
-21,
-34,
41,
31,
0,
-27,
85,
-55,
17,
74,
-16,
13,
21,
11,
7,
34,
33,
5,
8,
34,
0,
31,
-5,
-28,
-80,
25,
73,
-14,
58,
-25,
5,
11,
60,
-22,
27,
-22,
-32,
-18,
6,
28,
38,
12,
10,
-2,
0,
-48,
-9,
2,
29,
-5,
33,
24,
-13,
-1,
2,
-14,
42,
-49,
17,
11,
-48,
-1,
20,
-16,
-53,
44,
19,
29,
11,
-8,
-18,
-22,
-29,
-46,
-13,
25,
-25,
41,
-49,
32,
-14,
-33,
-18,
-34,
-25,
5,
4,
14,
-17,
-68,
-19,
-62,
26,
-32,
-10,
-23,
6,
-23,
77,
50,
31,
3,
18,
-12,
30,
3,
8,
-2,
-42,
-5,
28,
14,
-21,
-41,
11,
-51,
10,
-29,
-18,
7,
27,
-2,
3,
-68,
12,
55,
40,
56,
-61,
39,
-41,
13,
16,
-11,
20,
1,
-41,
-37,
-2,
45,
27,
-7,
38,
-19,
-14,
30,
-35,
-1,
34,
-25,
42,
-21,
-34,
-43,
-26,
-68,
25,
-26,
-9,
3,
-15,
48,
-10,
-40,
12,
12,
-13,
-4,
-17,
7,
-21,
1,
12,
92,
6,
-37,
8,
-16,
-18,
78,
65,
4,
35,
0,
-32,
51,
-2,
27,
9,
16,
37,
45,
19,
-20,
19,
0,
26,
1,
57,
39,
-2,
-18,
22,
-13,
41,
-54,
13,
12,
-51,
15,
65,
-36,
27,
89,
18,
-27,
39,
-42,
58,
-12,
-30,
-16,
7,
14,
-11,
16,
17,
-15,
50,
41,
4,
-7,
-1,
0,
-28,
-17,
-52,
18,
-14,
-6,
-8,
33,
33,
20,
34,
-29,
-9,
-21,
21,
2,
36,
-25,
-26,
-39,
-28,
12,
0,
8,
-28,
-45,
20,
-18,
-25,
-24,
-46,
-3,
9,
-26,
-18,
-29,
22,
-12,
-8,
-28,
41,
-40,
31,
13,
-6,
-4,
-25,
-35,
3,
50,
40,
-16,
11,
18,
-47,
55,
-13,
35,
5,
37,
3,
59,
-72,
17,
-59,
42,
6,
41,
26,
12,
-5,
14,
20,
-38,
27,
46,
-36,
-10,
-16,
-15,
-16,
-43,
69,
-9,
29,
-39,
3,
-3,
17,
-2,
-53,
1,
-20,
-10,
47,
-1,
30,
-59,
6,
-20,
18,
44,
-30,
-31,
-23,
14,
-15,
-10,
-1,
5,
-25,
2,
3,
-2,
-7,
-2,
0,
-11,
26,
5,
-15,
-3,
-30,
33,
-38,
-49,
28,
14,
-41,
-25,
-33,
41,
33,
-20,
14,
-38,
54,
-24,
-51,
6,
-25,
-68,
-6,
7,
10,
-1,
21,
14,
27,
-21,
15,
-2,
23,
54,
-6,
48,
-55,
30,
13,
-4,
11,
-51,
38,
-37,
54,
10,
73,
17,
34,
13,
9,
-38,
49,
24,
-27,
-26,
-62,
-13,
-34,
22,
-9,
-24,
-1,
-29,
-3,
-15,
56,
-6,
27,
-9,
-28,
-20,
-14,
-69,
59,
0,
-41,
-1,
72,
5,
-17,
-58,
-58,
-17,
9,
-27,
38,
21,
24,
14,
51,
-18,
0,
-11,
20,
34,
-33,
-17,
-17,
22,
27,
42,
1,
-9,
26,
27,
-25,
-7,
32,
-20,
36,
52,
24,
0,
-1,
-26,
-15,
42,
19,
2,
8,
6,
-69,
29,
-34,
-3,
7,
20,
44,
23,
-33,
1,
7,
17,
-26,
4,
16,
32,
-45,
-1,
-50,
-19,
44,
1,
27,
32,
-19,
-50,
-24,
32,
-87,
14,
32,
29,
-32,
29,
37,
-2,
-65,
-2,
0,
33,
-13,
-7,
-42,
-13,
-41,
2,
1,
-34,
-41,
-4,
-6,
39,
10,
44,
5,
12,
60,
36,
-14,
-19,
69
] |
Butzel, J.
On June 29, 1931, Pete Johnson, appellee, of the city of St. Joseph, Michigan, received a compensable injury, while in the course of his employment, as the result of a fall of 20 feet from a window. At the time, appellee was a bricklayer of many years’ experience, and, according to the compensation agreement, was averaging $72 weekly in the employment of Joel Pearson, defendant. Pearson and his insurer, the Builders & Manufacturers Mutual Casualty Company, also appellant herein, entered into a compensation agreement to pay appellee $18 per week. The agreement describes the injuries as a “fracture of the left fourth and fifth ribs, fracture of acromion process scapula.”
, On December 2, 1932, appellants filed their petition to stop or reduce compensation. An order was issued stopping compensation after testimony had been taken and a finding made by a deputy commisr sioner of the department of labor and industry that the disability had ceased. Johnson thereupon appealed to the commission, and obtained a reversal of the order. Defendants have brought an appeal in the nature of certiorari.
The case presents difficulties, as the testimony is conflicting and rather barren of any but subjective proofs of the continuation of appellee’s incapacity. On a petition to stop compensation, however, the burden of proof is upon the petitioner. Johnson v. Folwell-Ahlskog Co., 253 Mich. 271; Warner v. Railway Co., 248 Mich. 60.
Appellants complain of a statement in the opinion of the commission to the effect that appellee fractured six ribs. This is ostensibly an error that does not affect the result, for no attempt was made to connect the rib fracture with the cause of continued disability. Plaintiff apparently claims the disability is due in large measure to a fracture of the left elbow. No mention of this fracture was made in the compensation agreement, and the physician who treated plaintiff testified that, although the elbow was injured, the injury was not revealed by an X-ray taken after the accident. X-ray plates taken by Dr. Evans, one of the defendant’s expert witnesses, revealed the presence, however, of a “healed fracture involving the head of the left radius,” or elbow. There is little doubt but that this fracture dates back to the accident.
Appellee testified that he was still incapacitated for work as a bricklayer. He claims he is unable to maintain a firm grasp on brick, and complains of a click or snap in his left arm, with attendant pain, when he attempts to lift brick into place. Appellee’s brother-in-law testified that he was a contractor and had ample work with which to keep appellee busy, but that the latter had failed in all attempts to work. The other lay witness, a son of the contractor, gave like testimony in regard to an instance in which Johnson had been unsuccessful in his presence.
Defendant’s expert witnesses testified that X-rays taken more than a year following the injury revealed no evidences of any injury which should incapacitate him for his trade. The doctor who had attended plaintiff after the accident and another physician called by plaintiff testified that, although the X-ray photographs revealed nothing, appellee apparently displayed subjective symptoms of a continuing injury; that he had been able to lift a chair with his right arm without any difficulty; that considerable difficulty was encountered in raising it with his left hand; and that he was 'almost unable to raise his left arm above his shoulder.
In issuing its order, the commission took these facts into consideration, as well as appellee’s previous history and the fact that appellee would be able to earn much more than the $18 received weekly from appellants, were he able to pursue his trade. The commission may rely upon the testimony of plaintiff and lay witnesses in determining the duration of an injury. Geis v. Packard Motor Car Co., 214 Mich. 646; Margenovitch v. Newport Mining Co., 213 Mich. 272. It is not exclusively bound by medical testimony to the contrary. Austin v. Davidson, 246 Mich. 599; Gaffney v. Goodwillie, 203 Mich. 591; Leitz v. Labadie Ice Co., 229 Mich. 381. In the instant case, the burden was upon appellant to show that appellee’s disability had ceased. There was some testimony indicating that appellee was still incapacitated, and, on an appeal in the nature of certiorari, we must affirm the award if there is any competent testimony supporting it. King v. Peninsular Portland Cement Co., 216 Mich. 335; Martilla v. Quincy Mining Co., 221 Mich. 525 (30 A. L. R. 1249) ; Kibbey v. L. O. Gordon Manfg. Co., 260 Mich. 531; Bjorkstrand v. Klagstad, 262 Mich. 186.
Award affirmed, with costs to appellee.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Clark, J., did not sit. | [
-7,
-25,
-19,
55,
11,
-9,
-1,
19,
11,
-4,
-46,
-35,
53,
-42,
40,
40,
-2,
20,
-20,
0,
-19,
-23,
7,
4,
-39,
-33,
2,
0,
4,
3,
-1,
-14,
16,
-16,
-40,
28,
50,
11,
-9,
12,
16,
-38,
25,
-29,
20,
-8,
13,
-19,
5,
-22,
21,
-22,
-15,
-41,
-4,
-30,
32,
9,
15,
-34,
-9,
-17,
29,
-50,
24,
-36,
17,
47,
22,
-11,
-29,
46,
9,
-3,
-29,
-17,
-7,
54,
-9,
-18,
27,
-42,
28,
1,
-33,
49,
-30,
52,
-51,
-4,
-29,
-3,
18,
6,
-17,
-4,
-15,
23,
2,
24,
10,
1,
14,
0,
19,
-32,
6,
4,
5,
32,
12,
-4,
14,
49,
29,
-38,
28,
9,
13,
54,
16,
-4,
24,
-10,
31,
49,
33,
-41,
-17,
-2,
0,
9,
-42,
35,
9,
15,
12,
-36,
2,
8,
-2,
38,
-36,
-9,
-33,
29,
-2,
-30,
17,
-27,
-25,
38,
59,
18,
0,
10,
-40,
13,
26,
-10,
9,
-15,
8,
20,
-30,
-48,
-32,
22,
21,
-4,
45,
8,
11,
-71,
-1,
78,
53,
-37,
16,
56,
-7,
-6,
30,
-47,
-23,
-52,
-33,
13,
72,
32,
21,
-13,
-53,
24,
-18,
5,
22,
16,
36,
-25,
25,
-47,
26,
6,
-3,
8,
23,
9,
38,
22,
30,
-22,
-5,
-20,
4,
17,
35,
2,
-10,
-38,
4,
5,
-17,
-20,
-29,
-17,
-9,
-14,
-3,
-50,
-7,
-17,
47,
18,
5,
-21,
18,
6,
57,
-37,
-11,
-4,
-33,
-21,
-40,
-20,
-67,
-44,
13,
-2,
28,
28,
-37,
-2,
-54,
-8,
23,
30,
-53,
0,
-43,
19,
0,
51,
72,
7,
2,
46,
4,
-63,
13,
-17,
63,
0,
-14,
-85,
-12,
5,
53,
-18,
-31,
-4,
-14,
-48,
-30,
13,
0,
-15,
-50,
-21,
38,
-55,
27,
-37,
29,
-16,
-2,
-15,
-22,
7,
-18,
-7,
-7,
-9,
22,
27,
-36,
-7,
16,
-41,
-54,
-29,
65,
-74,
6,
6,
0,
8,
40,
-57,
-1,
42,
-37,
3,
-25,
-24,
-43,
19,
-39,
-6,
-7,
41,
-42,
44,
-30,
-17,
20,
13,
15,
4,
13,
26,
41,
31,
-55,
36,
5,
-26,
46,
-6,
-58,
-15,
47,
-2,
0,
83,
0,
-40,
-16,
63,
5,
-19,
-36,
25,
-41,
-20,
-37,
-31,
-22,
22,
31,
48,
37,
-39,
-14,
-9,
8,
6,
20,
78,
24,
56,
-2,
-29,
-24,
6,
-14,
-30,
4,
30,
-76,
-26,
63,
16,
-4,
17,
16,
6,
20,
-35,
-62,
-14,
-1,
41,
24,
17,
22,
2,
-38,
34,
-3,
4,
22,
-42,
24,
27,
62,
16,
-54,
-8,
22,
-10,
16,
-22,
36,
-18,
-20,
20,
-25,
-36,
3,
16,
39,
-26,
25,
-21,
-13,
-9,
-23,
-16,
-6,
4,
9,
-24,
-3,
42,
-16,
67,
15,
-32,
3,
18,
-35,
35,
3,
-21,
-3,
-25,
-34,
-29,
0,
-28,
33,
16,
55,
-12,
-13,
-27,
41,
10,
39,
-38,
-22,
2,
15,
-47,
11,
-14,
18,
8,
-54,
27,
-4,
-32,
-72,
4,
-5,
-6,
10,
17,
32,
-68,
-10,
-40,
-19,
-10,
-51,
52,
-54,
-4,
-57,
30,
24,
-24,
41,
-38,
-3,
-46,
5,
12,
-107,
-14,
-27,
23,
7,
-9,
43,
14,
-1,
7,
2,
0,
-26,
15,
-29,
-41,
-44,
26,
-2,
-29,
39,
-32,
33,
-1,
11,
20,
18,
30,
-19,
-25,
2,
10,
-1,
-24,
55,
-61,
-51,
52,
55,
18,
0,
-20,
7,
9,
7,
-20,
7,
28,
5,
-10,
-18,
-15,
13,
34,
-1,
29,
-5,
33,
23,
-24,
-52,
41,
50,
-14,
-19,
37,
32,
6,
-41,
-33,
40,
-24,
25,
18,
-53,
-39,
51,
4,
23,
3,
11,
1,
31,
27,
13,
-21,
41,
12,
-10,
-8,
8,
-21,
-44,
-2,
35,
18,
-34,
3,
49,
-28,
-19,
13,
-47,
-46,
-72,
-12,
-14,
-2,
14,
35,
-11,
56,
12,
-8,
0,
55,
-4,
12,
-36,
-35,
9,
-4,
2,
-74,
-5,
52,
25,
7,
2,
4,
-16,
-13,
7,
32,
-52,
-54,
-9,
9,
-6,
-4,
-64,
29,
-53,
19,
-16,
-1,
-17,
-4,
-59,
-9,
-37,
50,
-32,
-30,
11,
19,
43,
-20,
30,
14,
55,
39,
-16,
-20,
2,
-38,
-45,
54,
-11,
-11,
20,
-15,
33,
42,
12,
16,
0,
-20,
4,
-67,
-33,
64,
-11,
-29,
-44,
13,
17,
4,
3,
-20,
-2,
-5,
-24,
-3,
0,
21,
17,
3,
-18,
31,
-11,
-5,
-19,
29,
22,
79,
3,
-47,
-22,
-41,
-27,
-11,
8,
-28,
20,
-2,
37,
6,
-39,
-55,
-18,
-42,
-8,
6,
-44,
1,
-44,
20,
-26,
8,
51,
-28,
-7,
12,
-25,
-23,
53,
4,
7,
16,
-31,
15,
17,
-29,
-15,
-13,
2,
-7,
-22,
45,
-9,
13,
-33,
10,
-19,
-8,
-14,
-30,
-27,
-26,
14,
47,
-9,
-35,
5,
-1,
-7,
-74,
-18,
-17,
46,
-25,
43,
41,
-21,
-27,
10,
-27,
8,
-23,
-13,
-35,
7,
-55,
68,
-27,
25,
6,
-10,
-7,
-22,
28,
-4,
24,
8,
7,
12,
-3,
4,
6,
-16,
-40,
0,
44,
-53,
13,
14,
0,
-4,
13,
15,
37,
-24,
-44,
43,
-28,
-28,
-4,
51,
2,
-13,
19,
-28,
37,
38,
20,
7,
-21,
-34,
-22,
70,
5,
-35,
0,
41,
-28,
-20,
51,
-26,
-5,
9,
-47,
23,
-2,
-10,
38,
19,
-20,
6,
-17,
17,
9,
-30,
-25,
-21,
8,
-59,
41,
-12,
7,
39,
-8,
33,
-55,
-10,
8,
-49,
-44,
36,
1,
-33,
-25,
18,
-9,
8,
-1,
-7,
-7,
15,
20,
-11,
38,
8,
-16,
-18,
-30,
-43,
54,
62,
45,
43,
82,
27,
42,
27,
11,
5,
-27,
-37,
35,
-32,
-11,
36,
-7,
-28,
30,
25,
28,
0,
16,
-6,
-31,
-14,
-4,
-27,
24,
16,
26,
-39,
10,
29,
-45,
22,
-1,
66,
-25,
8,
-103,
7,
-19,
23,
7,
-28,
24,
-13,
-37,
-9,
-13,
-8,
16,
25,
22,
63,
6,
-14,
-17,
7,
35,
8,
-6,
-7,
5,
-40,
29,
43,
39,
48,
-62,
-17,
-34,
24,
-35,
-62,
-49,
7,
-12,
-1,
0,
21,
-4,
40,
1,
0,
-3,
-29,
0,
39,
0,
-35,
16,
-23,
11,
-49,
32,
25,
-23,
16,
-1,
56,
26,
23,
-28,
14,
72,
-30,
20,
42,
13,
1,
-3,
14,
42,
-9,
-25,
61,
56,
-74,
-6,
42,
-14,
66,
-15,
21,
11
] |
Fead, J.
The action is to recover real estate brokerage commission. Summary judgment was denied •plaintiff, but was entered for- defendants.
Plaintiff negotiated a trade of land between defendant Industrial Land Company and the American Blower Corporation. An instrument was drafted by representatives of the corporations, in form and words a binding contract. It provided:
‘ ‘ The Industrial Land Company agrees to pay H. E. Archbold the sum of $8,575 for his services if this deal is completed. ’ ’
The instrument was signed: “Approved: J. S. L.” “O. K. with me: C. Gr. B.” “O. K. with me: C. T. M.” It was so signed by C. Gr. Bowker and J. S. Lillie, respectively president and vice-president of the industrial Land Company, and C. T'. Morse, vice- president of the American Blower Corporation. A copy of the instrument was given plaintiff.
The above-quoted clause satisfies the statute of frauds, 3 Comp. Laws 1929, •§ 13417 (5), as a written promise to pay commission (Claxton v. Margolis, 248 Mich. 199), if the agreement was executed for and upon authority of defendant corporation. A signature by initials is sufficient. 27 C. J. p. 287. As the name of the corporation appears in the body of the instrument, the signature of its agent need not further set up the corporate name nor the fact that he signs as agent of the corporation. 27 C. J. p. 299; Johnson v. Wolfe, 223 Mich. 10.
Plaintiff made affidavit, on his personal knowledge, that the signing officers had authority to and executed the instrument in behalf of their respective corporations, and that, at a meeting of the board of directors of defendant company attended by him, Bowker had been expressly authorized thereto. The authority was denied by defendants. The affidavits on the motions for judgment raised issues of fact for trial, particularly upon whether the instrument was executed by authority and on behalf of the respective corporations or was merely a personal memorandum of the negotiating officers.
Judgment reversed, and cause remanded for trial, with costs to plaintiff.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
12,
-18,
2,
7,
-12,
21,
35,
15,
19,
11,
40,
12,
50,
-11,
-17,
12,
42,
30,
30,
-1,
-44,
-90,
17,
13,
3,
-26,
0,
-24,
10,
7,
-9,
-3,
-42,
7,
-65,
17,
-3,
-8,
9,
0,
-5,
25,
-29,
12,
-3,
-41,
-23,
-48,
-1,
-10,
34,
7,
45,
-22,
-37,
-59,
-30,
13,
6,
17,
14,
-65,
19,
14,
-13,
14,
17,
17,
43,
38,
-37,
-7,
26,
37,
31,
-22,
29,
7,
-7,
-21,
5,
-3,
-11,
-12,
32,
58,
48,
-24,
71,
-15,
-24,
-32,
19,
3,
-27,
35,
-21,
6,
-15,
5,
30,
-10,
-33,
-30,
11,
15,
-8,
-5,
70,
20,
-3,
-46,
11,
-60,
-13,
-6,
8,
-13,
-3,
-12,
-10,
-11,
0,
20,
-26,
30,
-7,
-46,
-55,
28,
43,
-57,
-62,
67,
20,
0,
3,
-8,
-2,
7,
-11,
20,
-27,
16,
-45,
10,
-30,
13,
-68,
-25,
-18,
-13,
1,
-9,
-5,
-10,
19,
-51,
49,
-72,
52,
0,
-22,
-1,
-27,
-12,
4,
2,
-64,
-1,
18,
-5,
3,
-85,
-15,
-42,
45,
22,
-52,
5,
1,
34,
-18,
17,
28,
-1,
12,
17,
48,
-29,
8,
22,
-2,
32,
-53,
9,
-37,
49,
43,
3,
2,
-18,
13,
13,
-32,
-9,
9,
9,
1,
74,
-6,
30,
-7,
-56,
-4,
9,
48,
-33,
44,
5,
28,
-23,
-23,
53,
-32,
-50,
38,
7,
29,
18,
-16,
13,
30,
19,
-9,
-22,
17,
-11,
54,
-1,
5,
21,
-5,
23,
4,
-11,
-31,
-11,
17,
19,
-53,
-19,
-47,
48,
-28,
8,
-26,
15,
0,
-10,
4,
23,
-14,
29,
-30,
-2,
-16,
-9,
-15,
19,
48,
-34,
-20,
29,
-26,
-11,
-32,
17,
-35,
-62,
14,
0,
-67,
-6,
-36,
41,
25,
21,
-73,
-42,
58,
39,
-1,
-14,
44,
-18,
-44,
-34,
34,
-3,
-25,
-14,
15,
-28,
14,
-24,
-15,
-21,
-21,
-16,
41,
12,
33,
-37,
-7,
3,
17,
-40,
30,
-49,
14,
54,
-2,
15,
33,
-5,
18,
-24,
3,
15,
-6,
11,
7,
30,
-9,
13,
35,
-2,
-50,
0,
16,
18,
24,
-17,
-9,
65,
30,
-8,
-21,
8,
-26,
-80,
-58,
-17,
-18,
-30,
30,
21,
-17,
26,
14,
21,
-11,
-33,
3,
3,
-36,
-1,
-17,
27,
-41,
45,
-39,
-42,
-15,
-30,
-27,
-30,
-66,
39,
19,
-38,
-1,
-3,
45,
-31,
-18,
4,
-33,
-26,
-34,
-16,
-8,
29,
-8,
-10,
18,
-55,
-24,
5,
14,
27,
-31,
-3,
-74,
12,
22,
1,
-33,
-6,
-4,
-5,
3,
-29,
-15,
5,
29,
16,
42,
29,
21,
-43,
-30,
-3,
14,
-17,
29,
-13,
-37,
-16,
-56,
15,
-4,
-21,
36,
1,
-54,
7,
-40,
60,
-6,
-7,
-62,
14,
16,
-6,
-41,
7,
9,
15,
37,
41,
14,
74,
28,
35,
26,
27,
70,
-45,
-2,
7,
54,
-21,
-2,
-24,
50,
1,
-30,
35,
2,
-1,
-16,
26,
-15,
-18,
-21,
0,
-60,
41,
-55,
33,
14,
-7,
-11,
-15,
-30,
7,
15,
-26,
32,
-20,
62,
-17,
-41,
-20,
-10,
23,
36,
34,
21,
-42,
13,
22,
7,
37,
15,
21,
1,
49,
-19,
0,
15,
23,
-6,
71,
-17,
-14,
-9,
102,
21,
-42,
-70,
15,
-41,
-31,
5,
43,
20,
3,
0,
10,
-6,
12,
-8,
-14,
0,
28,
-9,
-1,
-30,
18,
-13,
9,
-35,
19,
6,
-19,
-10,
0,
-37,
-75,
74,
-2,
-26,
31,
67,
1,
-6,
-9,
-25,
43,
11,
-9,
59,
-8,
-2,
12,
0,
-9,
-38,
-2,
24,
29,
49,
-57,
-27,
-4,
4,
-4,
-12,
14,
26,
-33,
-46,
25,
-23,
-24,
10,
31,
-42,
0,
7,
-33,
-32,
-9,
33,
8,
-9,
49,
4,
2,
-96,
-14,
-20,
-23,
35,
28,
-10,
-45,
-4,
-21,
11,
37,
37,
13,
71,
-5,
2,
43,
38,
18,
26,
-27,
35,
-10,
-10,
-12,
-26,
45,
1,
-15,
-67,
42,
-10,
17,
-25,
2,
-15,
-31,
39,
-34,
-20,
-24,
53,
-46,
-31,
9,
65,
8,
17,
-1,
31,
-39,
18,
17,
-18,
0,
-10,
6,
-6,
-13,
-5,
-20,
18,
-14,
61,
-33,
21,
30,
43,
19,
50,
-9,
31,
35,
41,
24,
28,
12,
25,
4,
26,
24,
5,
-5,
16,
2,
-19,
4,
-43,
19,
-39,
-26,
-33,
-2,
7,
-20,
-25,
1,
11,
-7,
-41,
45,
-18,
-5,
20,
6,
19,
-21,
33,
-27,
-6,
41,
0,
44,
6,
31,
-58,
-21,
-25,
-31,
5,
-58,
-22,
5,
14,
18,
-9,
12,
4,
-6,
10,
50,
8,
14,
23,
-77,
-36,
-40,
21,
-32,
33,
12,
-16,
-16,
12,
19,
-18,
-14,
49,
5,
10,
22,
16,
37,
-49,
-3,
-5,
3,
-44,
3,
0,
19,
19,
29,
-11,
-39,
2,
-5,
-30,
29,
-30,
24,
3,
-15,
10,
1,
14,
-19,
24,
-25,
-11,
18,
-29,
-30,
-9,
-3,
9,
31,
-8,
-33,
-29,
-24,
-13,
-28,
16,
16,
4,
-30,
1,
-15,
-46,
35,
12,
-33,
-25,
-8,
44,
-10,
-26,
-14,
0,
-35,
57,
20,
-6,
6,
-8,
-16,
-37,
0,
6,
11,
-15,
-21,
-10,
-14,
-14,
44,
8,
-53,
-21,
22,
-37,
25,
34,
-4,
8,
-18,
-14,
-51,
3,
-55,
26,
-48,
-80,
39,
-16,
-55,
6,
-12,
-7,
-2,
-1,
32,
23,
26,
5,
-12,
6,
16,
-40,
11,
55,
-64,
-49,
-42,
39,
-52,
30,
7,
10,
15,
22,
8,
-2,
-21,
42,
10,
-2,
51,
-16,
-22,
8,
37,
34,
-21,
-47,
53,
0,
-48,
-28,
2,
17,
-33,
33,
-52,
32,
31,
-12,
20,
-3,
-10,
7,
38,
-9,
-8,
-23,
-8,
68,
-16,
10,
7,
-47,
4,
5,
-34,
-7,
42,
23,
-3,
-28,
-30,
15,
-14,
14,
80,
25,
30,
16,
-47,
55,
13,
44,
17,
-27,
-13,
-38,
-50,
12,
-54,
-8,
-32,
2,
-38,
-35,
-7,
-32,
33,
-36,
73,
33,
26,
-5,
-26,
5,
1,
-6,
-53,
32,
16,
-52,
10,
35,
-17,
17,
17,
-33,
4,
52,
13,
-49,
21,
6,
-30,
28,
10,
-51,
-26,
4,
6,
9,
61,
8,
28,
-12,
-33,
1,
16,
4,
-31,
15,
2,
29,
-36,
36,
-28,
28,
-61,
-22,
-2,
-10,
-29,
12,
23,
8,
-12,
7,
14,
-5,
-53,
64,
63,
-35,
40,
-17,
-9,
28,
0,
1,
-20,
-14,
19
] |
Wiest, J.
Joseph A. Braun and William H. Kittle planned to acquire at least 76 per cent, of the stock of the Hartwick Lumber Company and then merging the Hartwick Lumber Company and the Braun Lumber Company into a„new corporation, and, in furtherance of the plan, Mr. Kittle, who was vice-president and general manager of the Hartwick Lumber Company, procured from the stockholders in that com pany an option granting “J. A. Braun and associates” an option to purchase their shares within 90 days. This option was not exercised, however, hut the record discloses that Mr. Kittle was the associate referred to, and this is manifested by the association agreement between Braun and Kittle, dated four days later. We quote from that agreement :
“This agreement made and entered into this 29th day of January, 1926, between J. A. Braun, hereinafter referred to as the party of the first part, and W. H. Kittle, hereinafter referred to as the party of the second part, both of the city of Detroit, and State of Michigan, witnesseth
“Whereas, the party of the first part is desirous of obtaining an option of all or at least 76 per cent, of the stock of the Hartwick Lumber Company, and
“Whereas, said party of the second part is in a position to obtain' such said stock control, and
“Whereas, said parties hereto are desirous of merging the Hartwick Lumber Company, and the Braun Lumber Company, into a new corporation, to be known as the Braun-Hartwick Lumber Company, or such other name as may be mutually agreed upon, and
“Whereas, said parties hereto are desirous of being mutually interested in the said Braun-Hartwick Lumber Company, and
“Whereas, an option of purchase of the shares of stock of the Hartwick Lumber Company has been taken in the name of J. A. Braun and associates, it is hereby declared that said associates in said option is the party of the second part to this agreement, and said agreement is attached hereto and made a part hereof, the purpose of said option being to acquire the control of said Hartwick Lumber Company, with the fixed intent of consolidating said properties with the Braun Lumber Company, and the affiliated companies of the Braun Lumber Company having-title to the realty used in the business of said Braun Lumber Company.
“Now therefore, the parties hereto mutually covenant and agree to-wit:
“That the Braun-Hartwick Lumber Company shall have seven directors, of which three shall be named by each of said parties to this agreement, the seventh director being named by the bankers instrumental in financing said merger. * * *
“It is agreed that in the event of the consolidation of the Hartwick Lumber Company, and the Braun Lumber Company, and its affiliated companies, that the real estate and improvements of said companies are to be reappraised by the American Appraisal Company of Milwaukee, and that the other assets shall be valued by Price, Waterhouse & Company on like terms and conditions, for the purpose of said merger.
“It is further agreed, that all profits arising from the purchase of the said shares of stock of the Hart-wick Lumber Company in said merger shall be equally divided in preferred stock of the new-created corporation of the Braun-Hartwick Lumber Company by the said party of the first part and the party of the second part, that in determining the profits arising therefrom, the proportional interest of the said party of the second part shall be credited with the full reappraisal value of his interest in the said Hartwick Lumber Company.
“It is further agreed, that in the issuance of the no-par value stock of the said Braun-Hartwick Lumber Company, the same shall be apportioned in the ratio of 85 per cent, to the party of the first part, and 15 per cent, to the party of the second part. # * *
“It is further stipulated and agreed that said parties hereto shall so pool their interests in the newly-formed corporation, so as to perpetuate the representation upon its board of directors, and the election of said officers hereinbefore referred to for a period of five years from the date hereof, and said party of the second part hereby agrees to remain with said newly-formed corporation for a period of five years from the date hereof.
“It is further agreed that for a period of two years from the date said merger becomes effective, that the salaries of said parties hereto, shall be fixed and payable monthly at the rate of $36,000 per annum each, and at the end of the two-year period, that said salaries shall be readjusted as the financial condition and earnings of the company justify, but at all times shall be equal in amount. # * *
“It is hereby agreed and stipulated that said contract attached hereto, together with the two copies of this agreement, which are hereby declared to be the only copies in existence, shall be deposited in a safety box of the Security Trust Company, and shall be available of access only upon the joint application of the parties hereto or their heirs, in the event of the death or incapacity of either of the parties hereto. * * *
“It is agreed that in the event the option attached hereto is exercised, and the merger planned herein is fulfilled, that this agreement shall be in full force and effect for five years from the date hereof.”
This agreement was signed by Mr. Braun and Mr. Kittle. As we have said, that option was not exercised. Neither was the Braun-Hartwick Lumber Company created by merger, but, on April 30, .1926, Mr. Braun was given a new option by all of the stockholders of the Hartwick Lumber Company for the purchase by him of their shares of stock at a price to be determined in a manner specified. This option was exercised by Mr. Braun on July 7, 1926, and assigned by him to the Braun Lumber Corporation on July 8, 1926, and that corporation furnished the money to pay the Hartwick stockholders. The Braun Lumber Corporation filed its articles of association June 28, 1926, was organized by and through the efforts and direct action of Mr. Braun and Mr. Kittle, and Mr. Kittle was a director and vice-president from the time of its organization until some time in 1927, and he acquired 10 per cent, of the class B stock of that corporation and $80,000 of the class A stock and received a salary of $36,000 per year. In 1928 Mr. Kittle severed his connection with plaintiff corporation, and Mr. Braun acquired his stock.
Among the property acquired under the exercised option were 21 acres of land, suitable for industrial purposes and appraised in the deal at $189,000.
The suit at bar was brought to recover damages from the stockholders of the Hartwick Lumber Company on the ground that they concealed the fact that a portion of this, 21-acre parcel had been platted and streets and alleys therein dedicated to the public, lessening its value for industrial purposes. The tract at the time of the trial was vacant property and intact. Plaintiff had judgment for one-half of what it had paid for the tract, or $94,500, together with interest thereon, or a total of $121,143.75. Defendants prosecute review.
The agreement between Mr. Braun and Mr. Kittle, from which we have quoted, although relating to an option not exercised, has a direct bearing* upon th'e subsequent and exercised option, for that agreement was carried out by Mr. Braun and the Braun Lumber Corporation in every detail, with the slight exception that Mr. Kittle obtained 10' per cent, of the class B stock instead of 15 per cent. While Mr. Braun and Mr. Kittle contemplated turning* the stock purchase over to the corporation to be formed, and in which they were to be directors and officers and have large salaries, they also intended to make the turnover at a nice profit, to be divided between them, and they succeeded. Mr. Braun is the principal stockholder of the Braun Lumber Corporation. The platting of a part of the tract in question was contemplated by the Hartwick Lumber Company, in connection with an adjoining subdivision, before any option was given to Mr. Braun and was carried out in fact before Mr. Braun exercised the option, and was good business judgment in case Mr. Braun failed to exercise the option.
Mr. Kittle was active in forming the Braun Lumber Corporation, and joined with two others in executing the articles of incorporation on June 23, 1926, and was designated therein as director and vice-president.
In obtaining the option and acquiring the Hart-wick Lumber Company property and the organization of the Braun Lumber Corporation, Mr. Braun and Mr. Kittle were engaged in a joint venture for their mutual profit, and if Mr. Kittle knew about the platting, neither Mr. Braun nor the plaintiff corporation can complain of want of similar information by Mr. Braun, for whatever Mr. Kittle knew is imputed to his associate, and the corporation can have no relief not open to its assignor. Mr. Kittle knew all about the platting. He was vice-president of the Hartwick Lumber Company and was active in the management of that company. Mr. Kittle was a principal in the acquiring of the stock of the Hart-wick Lumber Company, and his actual knowledge of the true situation is, under a salutary rule of law, to be held as well the knowledge of his coprincipal. Mr. Braun looked to Mr. Kittle to obtain the option, and, had each stockholder informed Mr. Kittle that the tract had been platted, such notice would have bound Ms associate, Mr. Braun, and the effect is no less the same where Mr. Kittle had full knowledge of the platting.
Mr. Kittle not only had full knowledge of the platting but wanted evidence to lay before his associate. Some time in May, 1926, and while Mr. Braun and Mr. Kittle were acting in concert toward accomplishment of their joint purpose, Mr. Kittle, whom defendant Karen B. Hartwick considered, and rightly so, Mr. Braun’s representative, asked her for a blueprint of the plat to give to Mr. Braun, and she directed him to where it could be procured. Mr. Kittle was in California at the time of the trial, gave no testimony, and is now dead.
We hold that, under the relation between Mr. Braun and Mr. Kittle, whatever Mr. Kittle knew about the property was, in point of law, equally the knowledge of Mr. Braun. Plaintiff made no case.
The judgment is reversed, without a new trial, and with costs to defendants.
McDonald, C. J., and Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
19,
38,
89,
4,
-14,
2,
23,
31,
6,
-47,
-29,
-21,
3,
9,
26,
94,
68,
41,
12,
41,
71,
-16,
-9,
9,
-3,
-4,
27,
-44,
-9,
27,
-21,
-9,
10,
-20,
-57,
33,
-40,
7,
-3,
-43,
-14,
-21,
16,
-21,
68,
47,
32,
-74,
54,
-29,
40,
23,
10,
20,
14,
-14,
-22,
47,
16,
59,
-4,
-57,
-10,
3,
9,
9,
0,
106,
51,
-37,
30,
-51,
-22,
-34,
8,
-35,
-16,
20,
-48,
-22,
17,
-23,
28,
19,
-26,
79,
-20,
12,
-31,
66,
20,
-27,
8,
-6,
-4,
2,
11,
58,
-79,
44,
-10,
-19,
29,
-36,
-43,
-6,
82,
19,
57,
5,
-17,
-21,
24,
3,
7,
-41,
42,
-66,
46,
38,
-17,
-9,
-24,
68,
-15,
28,
-60,
-69,
-16,
-35,
13,
-3,
-41,
34,
38,
6,
-1,
-8,
-11,
21,
-1,
70,
-84,
11,
-60,
38,
0,
-7,
29,
-8,
-28,
26,
26,
-59,
-32,
59,
-23,
64,
39,
-25,
13,
-54,
31,
-40,
-53,
25,
-36,
-7,
-50,
117,
-13,
-14,
13,
-27,
-9,
54,
23,
6,
-40,
2,
-24,
9,
38,
35,
1,
-102,
50,
41,
18,
-19,
10,
-5,
-17,
11,
-29,
7,
-23,
30,
-5,
65,
7,
-62,
-47,
-16,
-25,
-39,
-16,
53,
8,
21,
-19,
46,
-22,
-12,
-31,
37,
-28,
-51,
72,
-78,
87,
18,
23,
32,
-3,
-27,
49,
46,
50,
-45,
-48,
-20,
-9,
36,
-4,
-15,
-9,
-17,
20,
-46,
32,
-18,
-9,
9,
2,
-18,
-60,
-1,
89,
9,
-55,
-5,
-63,
-23,
-7,
14,
-70,
-53,
16,
-1,
-67,
32,
-53,
25,
34,
-2,
-29,
-17,
-13,
0,
-12,
8,
4,
-34,
-23,
21,
19,
-19,
-30,
-18,
0,
-36,
31,
-9,
-1,
36,
37,
30,
-80,
-45,
41,
62,
68,
-59,
41,
5,
-47,
-2,
2,
-11,
-54,
5,
-64,
-36,
17,
-24,
-41,
-38,
39,
24,
-23,
-33,
27,
-61,
8,
-63,
67,
86,
0,
17,
9,
-25,
9,
32,
-14,
-22,
-31,
47,
-8,
28,
18,
-45,
-29,
22,
-48,
-69,
40,
28,
36,
35,
37,
34,
55,
19,
-9,
-83,
0,
0,
3,
-43,
11,
-78,
-40,
24,
-36,
10,
-15,
82,
22,
3,
55,
47,
41,
55,
0,
8,
-17,
32,
49,
27,
-24,
6,
-35,
9,
52,
14,
-42,
-28,
-61,
12,
17,
-26,
49,
-2,
46,
6,
19,
-3,
-6,
33,
-58,
-5,
-17,
83,
-38,
-34,
49,
-73,
-47,
-63,
-2,
25,
30,
-11,
-14,
26,
47,
18,
-4,
-12,
24,
-32,
-2,
-41,
-5,
-47,
-49,
15,
-44,
12,
18,
8,
-64,
-20,
56,
-26,
10,
8,
-23,
-10,
-41,
13,
16,
27,
14,
5,
19,
-50,
20,
4,
14,
9,
-15,
-12,
-10,
-2,
-14,
45,
28,
32,
0,
51,
-6,
0,
33,
30,
-26,
-16,
35,
34,
-22,
-25,
49,
7,
3,
6,
44,
-34,
0,
76,
-16,
-15,
64,
0,
-24,
-56,
17,
-48,
11,
-12,
16,
-26,
1,
17,
-65,
-43,
12,
-26,
-3,
0,
47,
6,
13,
-24,
-35,
-3,
-6,
-1,
45,
19,
1,
-2,
-1,
0,
-51,
22,
16,
-51,
8,
19,
9,
-80,
0,
12,
-35,
34,
-44,
-3,
3,
32,
14,
11,
-34,
65,
4,
27,
94,
-44,
34,
9,
35,
-13,
25,
-16,
-19,
-75,
-30,
-1,
-8,
-29,
63,
-128,
23,
-47,
-23,
-7,
-4,
-28,
3,
-51,
-78,
-6,
-16,
-41,
53,
78,
23,
4,
-29,
0,
-3,
28,
3,
-91,
23,
-15,
-40,
47,
-4,
82,
-43,
36,
13,
52,
5,
-11,
-5,
16,
13,
-65,
-15,
-68,
21,
-20,
-58,
83,
-8,
-23,
-73,
23,
-20,
-47,
-40,
-14,
42,
-25,
108,
48,
27,
3,
-36,
9,
-12,
-8,
-34,
-19,
-6,
77,
45,
13,
-20,
-28,
35,
28,
-62,
35,
40,
16,
54,
19,
-60,
80,
-23,
18,
56,
47,
1,
12,
52,
28,
-45,
-3,
-50,
60,
-7,
-11,
37,
-3,
14,
8,
41,
-51,
-18,
-65,
-22,
-25,
-38,
36,
61,
27,
-12,
-47,
5,
32,
-14,
11,
10,
16,
-1,
-35,
25,
20,
-1,
38,
-22,
-24,
-29,
-37,
40,
-5,
36,
27,
-27,
-40,
14,
64,
-4,
61,
8,
84,
34,
43,
-45,
3,
5,
-52,
74,
8,
-12,
-3,
14,
10,
0,
11,
-46,
55,
-23,
-44,
66,
-4,
-13,
12,
-2,
44,
-19,
-16,
-52,
38,
-30,
-14,
44,
-61,
-37,
-11,
12,
70,
-19,
-26,
21,
-65,
-37,
19,
48,
-79,
68,
8,
-31,
-73,
-1,
-20,
-38,
-8,
3,
-40,
-39,
10,
-45,
0,
0,
-11,
34,
-7,
-40,
18,
-73,
8,
-17,
32,
29,
-24,
16,
-29,
22,
30,
15,
-42,
-27,
-20,
-91,
46,
-30,
-12,
-32,
17,
-2,
38,
-7,
-54,
5,
-40,
-49,
30,
-16,
62,
8,
-69,
21,
-14,
48,
65,
-4,
-67,
-56,
-35,
-19,
1,
54,
-7,
51,
-24,
-37,
-11,
42,
-21,
4,
22,
17,
70,
75,
-27,
-25,
6,
-70,
21,
-21,
-32,
49,
41,
-16,
-13,
-57,
-32,
27,
-68,
76,
-9,
5,
-11,
-41,
89,
-49,
-13,
2,
-18,
0,
37,
-41,
1,
-25,
27,
-29,
-47,
-22,
-23,
34,
-33,
22,
64,
-8,
38,
12,
18,
54,
-11,
-23,
-29,
-4,
10,
-14,
-29,
-26,
-17,
-14,
23,
-68,
-7,
0,
52,
8,
7,
-15,
14,
-28,
9,
-55,
-47,
9,
-4,
8,
-38,
-51,
-51,
5,
-38,
0,
11,
-11,
0,
-12,
-5,
-13,
36,
35,
5,
-38,
91,
9,
-11,
76,
24,
-10,
-52,
-69,
13,
50,
-48,
36,
9,
-24,
58,
-53,
-19,
5,
20,
-30,
14,
8,
13,
-14,
14,
9,
-7,
74,
-10,
-44,
-5,
10,
-1,
6,
6,
67,
-77,
-37,
0,
-44,
18,
13,
20,
9,
47,
-4,
52,
-21,
-23,
-52,
-43,
-14,
-43,
-1,
50,
13,
49,
-28,
13,
1,
-34,
36,
-46,
-31,
39,
61,
52,
3,
17,
42,
-2,
18,
20,
-38,
-17,
15,
-35,
31,
8,
-22,
-33,
-2,
21,
-2,
-7,
33,
-18,
6,
13,
-40,
31,
-65,
-15,
-10,
-32,
-25,
-20,
-24,
84,
3,
-2,
-1,
45,
-22,
37,
-45,
15,
-9,
-33,
-11,
21,
-9,
9,
-10,
-30,
13,
-76,
-12,
-2,
-27,
5,
-2,
-10,
-11,
-43,
-44,
-5,
-3,
11,
-2,
30,
-26,
8,
51,
0,
-30,
-29,
-39,
78
] |
Potter, J.
{dissenting). Plaintiff sued defendant to recover upon a bond executed by it as surety for the First National Bank of Reed City to plaintiff given December 28, 1928, to be in force from January 1, 1929, to January 1, 1930; subsequently renewed for 1930 and 1931 in accordance with the terms of the bond. From a judgment for plaintiff, defendant appeals. Plaintiff’s declaration is on the contract of suretyship and the common counts. The defendant admits the bond was in force for the years 1929 and 1930 and for 1931 up to the time it alleges it canceled the bond. The bond contained a provision:
“This bond shall be deemed canceled at the close of business upon the effective date set forth in a written notice served by the surety upon the obligee or by the obligee upon the surety, or sent by registered mail. Such date shall, in case of cancellation by the surety, be not less than five days from such service, or if sent by registered mail, not less than 10 days from the date by the sender’s registry receipt. In case of cancellation the unearned premium, if any, shall be returned upon demand.”
Under date of September 16th, defendant served upon the county clerk of defendant county a notice of cancellation as follows:
“September 16, 1931 “Copy for the information of
“First National Bank,
“Reed City, Michigan.
■“Me. Ale Zimmerman,
“County Treasurer,
“Reed City, Michigan.
“Dear Sir:
“Notice is hereby given that the Michigan Surety Company has elected to and does hereby cancel and terminate and withdraw from liability as surety under its bond No. 14,607, dated December 28, 1928, and effective January 1, 1929, in the sum of $20,000 on behalf of the First National Bank of Reed City, Michigan, and all continuances or renewals of said bond, which said bond was in favor of the county of Osceola and was given for the protection of funds of the county deposited in said bank.
‘ ‘ This cancellation and termination and withdrawal is effective five days from the date of the service of this notice upon you and is pursuant to provision therefor contained in the seventh paragraph of said bond, lines 45 to 50 inclusive.
“This cancellation is for the purpose of effecting reduction in the amount of suretyship and so that substitute bonds may be executed and filed. Concurrently herewith there is submitted a new bond on behalf of the First National Bank of Reed City in the sum of $10,000, which is intended to supersede and replace the present bond of $20,000, which is canceled by the above notice. This new bond of $10,000 is effective September 23d and is properly signed and sealed by the bank and surety. Cancellation of the $20,000 bond will become effective at midnight September 22cl, and the new bond for $10,000 will immediately thereupon become operative and effective. Thereafter appropriate adjustment of premium will be made.
“The First National Bank is a depository for a number of school districts in the vicinity of Reed City, and-the statutes require the school districts’ depositories furnish security to said districts. At the present time depository bonds are difficult of procurement and the bank wishes to reduce the bond covering county funds from $20,000 to $10,000 so as to make it possible for us to execute these several depository bonds to various school districts, for which it is depository. This, then, is the particular reason for the reduction in bond covering county funds. Immediately following the 23d instant, we will execute and forward to the bank the several bonds covering school districts’ funds. We make this explanation so that the cancellation and substitution of reduced bond will not be misconstrued.
“This notice is served upon you by messenger and we ask that you favor us with an acknowledgment of its receipt by signing the inclosed copy.
‘ ‘Very truly yours,
“Michigan Surety Company “WHL.WH (Signed) By Walter H. Lewis
“Vice-president
“Receipt of the above and foregoing cancellation notice is acknowledged this 17th day of September, 1931.
(Signed) “Ale Zimmerman,
“County Treasurer.”
This notice is a notice defendant has elected to cancel the bond; that it does cancel it; that it terminates and withdraws from liability as surety thereon; that the cancellation and termination is effective five days from the date of service of this notice. The date of service was acknowledged to be September 17, 1931. A bond for $10,000 was tendered by -the surety company in the place of the canceled bond. This $10,000 bond was not accepted. The bank closed October 2, 1931. The cancellation was in accordance with the terms of the bond.
The question is whether defendant is liable as surety on this bond. Prior to the execution of the bond, the First National Bank of Reed City had been regularly designated by the board of supervisors of Osceola county as a depository for county funds. The bond was furnished by the First National Bank of Reed City in pursuance of. such designation and was accepted and approved by the board of supervisors of the county. The real question is, Is the cancellation clause of the bond above quoted valid? Plaintiff contends it is invalid; defendant that it is valid. In 1909 the legislature provided banks might compete for the deposit of county money. The bank or banks bidding the highest rate of interest to the county were to be awarded by being designated as county depositories. They were to give bonds to indemnify the county. Thereupon it was made the duty of the county treasurer to deposit the money which came into his hands as such, with some exceptions, in .such designated depository or depositories; the statute providing, if he did so, the county treasurer, in the absence of his own negligence, should not be liable in case the depository suspended payment. What kind of a bond was to be given to the county by such designated depositories?
Such bond—
a. was to be executed and delivered to the board of supervisors of the county;
b. in an amount at least .equal to the maximum amount to be deposited in such bank;
c. with such sureties as should be approved by the board of supervisors and the prosecuting attorney of the county;
d. conditioned for the safekeeping and repayment of such moneys or any part thereof on demand and the payment of interest.
e. Such bond, “shall contain such other conditions as may be required by the board of supervisors * * * not inconsistent with the provisions of this act.” 1 Comp. Laws 1929, § 1195.
It is, by statute, made the duty of the board of supervisors “to fix and determine the amount and kind of said bond and the class and character of the surety executing same."” 1 Comp. Laws 1929, § 1194.
The board of supervisors may require new and additional bonds of security from the designated depository or depositories. 1 Comp. Laws 1929, § 1197. The board of supervisors may direct the county treasurer to withdraw county funds from any designated depository whenever it shall deem it unsafe to continue said deposits with any such bank or banks. 1 Comp. Laws 1929, § 1198. The statute provides for the release of sureties on depository bonds. 3 Comp. Laws 1929, § 12420. If the surety on a depository bond may be released by law, they may be released by agreement between the parties. The provision in the bond in question providing for the release of the surety thereon from liability must be construed as one approved by the board of supervisors and under 1 Comp. Laws 1929, § 1195, and valid in accordance with its terms.
The board of supervisors doubtless read the conditions, stipulations, and limitations in the bond in question, accepted and approved the bond containing them, and the county must be held to be as much bound by the contract entered into as the surety company. Mayor and Council of Brunswick v. Harvey, 114 Ga. 733 (40 S. E. 754). Suit in this case is not brought entirely upon the original bond. It is brought upon the original bond as renewed for 1930 and 1931. Such renewal is a new and distinct con tract, keeping the original bond in force by reference and incorporation in the renewal agreement. 1 May on Insurance (4th Ed.), § 70a; Ostrander on Fire Insurance (2d Ed.), § 344; Richards on Insurance (2d Ed.), §156; 4 Joyce on Insurance (1st Ed.), § 3485; Mayor and Council of Brunswick v. Harvey, supra. The terms and conditions of the bond in question, ratified and approved by the board of supervisors, including the clause providing for its cancellation, is such a bond as the county, through its board of supervisors, was authorized to take; the parties are hound thereby; the cancellation was regularly made. Upon the cancellation being made the hoard of supervisors did not direct the withdrawal of the county funds from the designated depository, and defendant is not liable.
It is suggested defendant should have tendered back the unearned premium upon giving notice of cancellation of the bond, which provided in case of cancellation for a return of the unearned premium on demand. Notice of cancellation was given in accordance with the provisions of the bond. A different bond was tendered. Defendant said if it was accepted appropriate adjustment of the premium would he made. The notice of cancellation was good without an actual tender to plaintiff or the bank of the unearned premium (Home Ins. Co. v. Curtis, 32 Mich. 402; Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114 [32 L. R. A. (N. S.) 298]; American Fidelity Co. v. R. L. Ginsburg Sons’ Co., 187 Mich. 264; Molyneaux v. Royal Exchange Assurance Co., 235 Mich. 678; Beaumont v. Commercial Casualty Ins. Co., 245 Mich. 104), in accordance with the general rule in this country (3 Joyce on Insurance [2d Ed.], pp. 2557-2630), and in England (17 Halsbury’s Laws of England, pp. 495-499).
“It is competent for the parties to stipulate that under certain conditions or the happening of some event, or the not happening of a specified contingency, a part of the premium shall he returned. Such stipulations may lawfully be, and should be, inserted in the policy, or otherwise made a part of the contract, and when so made are enforceable.” 3 Joyce on Insurance (2d Ed.), p. 2561, § 1391.
Where the condition of the bond is substantially .that required by the statute, the fact that it contains further undertakings does not take the bond out of the statute.
“It has been frequently held that, in the absence of a prescribed statutory form, and of a declaration that bonds not in accordance therewith shall be void, if a bond be taken under a statute, with a condition in part prescribed by statute, and in part not so prescribed, yet, if it be clearly divisible, a recovery may be had upon it for a breach of the part prescribed by statute. The superadded part may be rejected as surplusage.” Board of Education of Detroit v. Grant, 107 Mich. 151.
The bond in question does not fall within the class of bonds under consideration in the case last above cited. Certain conditions of the bond are prescribed by statute. The form of the bond is not so prescribed, nor is there any declaration in the statute that bonds not in accordance with the statute shall be void. The statute prescribes certain conditions, and that the bond may contain other conditions required by the board of supervisors. That is, conditions which may be agreed upon between the surety and the board of supervisors.
“A statutory bond may be good as a common-law obligation, although insufficient under the statute because of noncompliance with-its requirements, pro vidéd it is entered into voluntarily and on a valid consideration and does not violate public policy or contravene any statute. But this rule cannot be extended to cases in wbicb to hold the parties liable as on a bond at common law would be to charge them with liabilities and obligations greater than, or different from, those which they assumed in the instrument executed by them.” 9 C. J. p. 27.
The rule of the text above quoted has been repeatedly recognized and acted upon by this court. St. Joseph County Supervisors v. Coffenbury, 1 Mich. 355; People, for use of Clinton, v. Laning, 73 Mich. 284; Lustfield v. Ball, 103 Mich. 17; Board of Education v. Grant, supra; Buhrer v. Baldwin, 137 Mich. 263; 9 C. J. p. 27.
The parties to this bond, under any circumstances, are bound by the words of the instrument. If the words do not make the surety thereon liable, nothing else can. There is ordinarily no construction of an instrument which is plain in its terms. There is no equity against sureties. The bond is to be enforced in accordance with its words. This court has no power or authority to write into the bond terms and conditions not contained therein,, and it has no power and authority to eliminate therefrom other conditions than those expressly named in the statute, which, by the terms of the statute itself, the board of supervisors and the surety may include therein. The surety in question is a paid surety. The general rule of construction is that a noncompensated surety is only to be held liable in accordance with the strict terms of the contract. Spencer on Surety-ship, § 259; Arnold, Suretyship and Guaranty, § 232; Pingree, Suretyship and Guaranty (2d Ed.), §442. A more liberal rule of construction applies to compensated sureties, but though the surety involved is a compensated surety, that does not authorize the contract to be construed otherwise than in accordance with its terms agreed to by the surety in its execution of the bond and ratified and approved by the board of supervisors of the county. Whether we consider the bond in question as strictly a statutory bond, or as a common-law bond, defendant is not liable.
Judgment should be reversed, with costs.
McDonald, C. J., concurred with Potter, J.
Sharpe, J. In my opinion, the notice of cancellation, quoted in full by Mr. Justice Potter, was not intended to, and did not, terminate the obligation in defendant’s bond at midnight on September 22d. Its purpose was thus stated:
“This cancellation is for the purpose of effecting reduction in the amount of suretyship and so that substitute bonds may be executed and filed. Concurrently herewith there is submitted a new bond on behalf of the First National Bank of Reed City in the sum of $10,000, which is intended to supersede and replace the present bond of $20,000, which is canceled by the above notice. This new bond of $10,000 is effective September 23d and is properly signed and sealed by the bank and surety. ’ ’
It appears that a similar notice was delivered to the county clerk and receipt acknowledged by him.
A reading of the entire notice and a consideration of the testimony of the county clerk and county treasurer satisfies me that the vice-president who signed the notice and Charles C. Blair, the “special agent” who delivered it, understood at the time it was delivered that the county clerk or county treasurer, one or both, had the power to accept the cancellation and to accept and approve the new bond for $10,000 tendered with it. The notice was delivered in the office of the county treasurer, and both he and the county clerk were then present.
Alf Zimmerman, the county treasurer, when asked about the delivery of the notice, testified:
“Q. When it was turned over to you, did you accept it?
“A. I told them I couldn’t do it because I have no right. I told them it was a matter concerning the board of supervisors.
“ Q. What did they say ? What did the representative of the surety company say?
“A. The representative of the surety company said to me ‘We ask you to keep it in your office, and to present it to the board, ’ something of that nature. I don’t just exactly remember the exact words, but that was the meaning anyway.
“Q. To present it to the board of supervisors?
“A. Yes, sir.
“Q. Were the board of supervisors then in session?
“A. No, sir.
“Q. Were they in session from that time until after the time the bank closed its doors?
“A. No, sir.”
He also testified that the $Í0,000 bond was delivered to him at the same time, and—
“Q. What did you say when this notice and bond was turned over to you, — the $10,000 bond?
“A. I told them I had no right.to accept it, whatever.
A‘Q. Accept what?
“A. This bond of $10,000.
“Q. What else did you tell them here?
“A. Because it was not my duty; it was the duty of the board of supervisors to accept the bond and not mine.
“Q. So when he turned it over to you, you took the bond and notice, but told him you would not accept it?
“A. Yes, sir.”
The county clerk, John F. Gardner, testified as to what occurred at that time:
“Q. When he turned this notice over to you, what did he say?
“A. He said, in effect, what it says in there,— that the bank — -that they were carrying all of the bonding of the bank that they could, under the condition of the times, and that the bank wished them to carry some bon.ds for township treasurers in the various townships and in order to do that, they would have to reduce their bonds with us.
“Q. What did you say?
“A. I said it would be impossible, as he only had $20,000 bonds and we could hardly keep, the deposits below that amount.
“Q. Was Mr. Zimmerman there at the time?
(( A cnv
“Q. What did he say?
“A. Well, I then said — in the second place, I wouldn’t have any authority to accept that from you anyway, because it is" a question for the board of supervisors, and that therefore I could not accept it as an acceptance of the notice.
“Q. The board of supervisors then in session?
“A. No; they were not.
“Q. When did they convene?
“A. I think the second Monday in Octobej.
“Q. And that was the regular time, as provided by law?
“A. Yes, sir.
“Q. They convened at that session?
“A. Yes, sir.
“Q. And at that time?
“A. Yes, sir.
“Q. But had they been in session, — had the board of supervisors been in session from the time of this notice, on the 17th of September, up until the second Monday in October, 1931?
“A. They were not in session from the time they ended their June term until they came to their October term.
“Q. So you told him that, and what else did you say?
“A. Well, he said, of course we understand that, but we want you, — we have got to deliver it to you, and you can present it to the board of supervisors, and I said, on that basis I will receipt for it.
“Q. That is, that you would present it; present what?
“A. This cancellation notice.
“Q. This cancellation notice?
“A. Yes, sir.”
Mr. Blair was questioned as to the statements made by him above referred to, and answered: “I don’t remember of any such conversation.”
In my opinion but one conclusion can fairly be drawn from this testimony and the language employed in the notice of cancellation. The defendant expected that the county officers would approve the $10,000 bond and that it would take the place of the one for $20,000. This is clearly indicated by the statement in the cancellation notice:
“Cancellation of the $20,000 bond will become effective at midnight September 22d, and the new bond for $10,000 will immediately thereupon become operative and effective. Thereafter appropriate adjustment of premium will be made. ’ ’
And, when informed by the county officers that they could not accept the notice of cancellation, and that approval of the $10,000 bond must be had by the board of supervisors, Mr. Blair said, “We ask you to keep it in your office, and to present it to the board. ’ ’ Surely be had no thought, nor had the clerk and treasurer, that after midnight on September 22d the county would be without protection by a depository bond. Had the county treasurer so understood, it would have been his duty to have withdrawn the moneys of the county in the bank or required other security therefor. Both he and the county clerk rested content upon their understanding that the status quo would be maintained until the board of supervisors would meet and pass upon the $10,000 bond or take such other action as they might be advised.
Entertaining this view, I do not deem it necessary to discuss or pass upon the contention of the plaintiff that the provision in the bond for cancellation is surplusage and unenforceable.
It appears that the bank had also given a depository bond of the United States Fidelity & Guaranty Company, which expired on January 31, 1931, and that the board of supervisors had requested the bank to furnish bonds to take its place. On April 16, 1931, the board adopted a report of the ways and means committee, which stated that they had consulted with the bank—
“with regard to securing a bond in the sum of $30,000 running to January 1, 1932, as a depository bond for the coverage of Osceola county deposits and when said bonds will be furnished and submitted to the prosecuting attorney for acceptance as soon as said bond can be procured.”
Pursuant thereto, the bank executed a bond with Arthur Adamy as surety and another with Edward E. Bettin as surety, each in the sum of $15,000, and dated May 11, 1931, and delivered the same to the county treasurer. The county clerk testified that, at a meeting of two of the officials of the hank and a committee of the board of supervisors and the prosecuting attorney, the matter of their approval was discussed, and that the prosecuting attorney declined to accept and approve them for the following reasons:
“First: Because of the fact they were not surety bonds, and there was no authority in the records of the board of supervisors to accept anything but surety bonds;
‘ ‘ And second: He was not satisfied with one of the people that gave the bond, — Mr. Adamy;
‘ ‘ Third: He questioned the authority of the board of supervisors to delegate to him, as they had in their resolution, authority to accept for the board.”
This testimony was admitted over the objection of defendant’s counsel that it was “hearsay and self-serving testimony.” The defendant in its answer gave notice that at the time the bank closed it had given the county other depository bonds aggregating $30,000 in amount, and that its liability was limited thereby, and its counsel had, before this testimony was admitted, cross-examined the county clerk relative to these bonds. There being no record evidence as to their presentation to the county officers, and the action taken thereon, this testimony was admissible to show that they had not been approved and the reasons therefor.
Counsel urge that action might have been brought on these bonds, and that the sureties would have been estopped from insisting on a lack of approval thereof. People v. Johr, 22 Mich. 460. Had the treasurer accepted them from the bank and filed them in his office, a different question would be presented. But the officer to whom the board of supervisors had directed that they should be submitted for acceptance refused to approve them, and no binding obligations on the part of the sureties thereon were created. See, 9 C. J. p. 18; 18 C. J. p. 586; Bachelor v. Korb, 58 Neb. 122 (78 N. W. 485, 76 Am. St. Rep. 70); Maryland Casualty Co. v. Pacific County, 158 C. C. A. 171 (245 Fed. 831).
The amount on deposit in the bank to the credit of the county treasurer at the time it closed on October 2d was $19,986.40. The county treasurer’s books showed an indebtedness of but $4,484.34. This discrepancy is accounted for by outstanding checks which had not been presented for payment. On September 21st, the treasurer had sent two checks to township treasurers for primary money, amounting to $9,257.10, and on September 28th he had sent a check to the auditor general for $6,308.88. These, and a few small checks issued prior to September 21st were credited to the bank on the treasurer’s books, but had not been presented for payment at the time the bank closed.
The defendant insists that as to all of these checks, except the last, which is hereafter considered, there was an inexcusable delay in their presentment for payment, which discharged the county, and that the indebtedness of the bank to the county was reduced thereby. As between the drawer and the person to whom a check is made payable, the failure of the latter to present it for payment within a reasonable time discharges the former from liability. 2 Comp. Laws 1929, § 9435. But, in my opinion, this question cannot be raised by the defendant. It had obligated itself in its bond to pay to the county on legal demand all moneys deposited by the county treasurer in the bank which had been named as a depository therefor. When the bank closed, it had on deposit $19,986.40, deposited therein by the county treas urer, and the fact that checks had been drawn thereon, but not presented or paid, in no way relieved it of such indebtedness. Our attention is not called to any authority in which this question is discussed or decided, but, in my opinion, no other construction can fairly be placed upon the obligation of the bank or that assumed by the defendant in its bond to the county.
The books of the county treasurer disclosed that at the time the bank closed there were credits thereon to the mortgage tax fund of $47; to the delinquent tax fund of $3,736.40; to the teachers’ institute fund of $89.27; to the township fund of $2,702.31; to the city and village fund of $92.69; to the escheats fund of $564.68; to the redemption fund of $3,131.88, and to the May tax sale fund of $3,941.53, a total of $14,305.76, and it is insisted that this sum—
“is not a proper claim under the bond for the reason that they were not funds of the county of Osceola within the terms of the bond. ’ ’
It is the duty of the county treasurer to receive such moneys and to pay them out to the parties entitled thereto. The bond recited that the bank “has been designated as a depository of funds of Osceola County, Michigan.” The obligation of the defendant as a surety is thus stated:
“Now, therefore, the condition of the above obligation is such, that if the above bounden principal shall, in due course, pay on legal demand made during the terms of this bond, all moneys deposited pursuant to such designation, including any balance on deposit at the beginning of said term, together with interest at the rate agreed upon, then this obligation shall be void, otherwise of full force and effect. ’ ’
The agreements and limitations therein in no way affect this obligation. These moneys, and that for which the check was sent to the auditor general, heretofore referred to, were deposited by the county treasurer pursuant to such designation, and the defendant is in no way relieved by the fact that they were, strictly speaking, not moneys belonging to the county. See, Lawrence v. American Surety Co., 263 Mich. 586.
The judgment is affirmed.
Clark, North, Fead, and Butzel, JJ., concurred with Sharpe, J. | [
4,
-6,
5,
40,
-27,
29,
12,
-8,
-3,
2,
47,
-10,
23,
2,
-31,
9,
9,
6,
4,
26,
-60,
1,
-3,
-45,
-31,
24,
-10,
-9,
15,
-1,
-6,
-2,
-24,
45,
-29,
7,
24,
-22,
10,
0,
-23,
11,
11,
-7,
-23,
-38,
-7,
-28,
18,
-36,
8,
-14,
3,
-14,
5,
-3,
-16,
-25,
-34,
37,
21,
-27,
6,
18,
-21,
-29,
0,
73,
22,
34,
12,
28,
-15,
16,
15,
-38,
25,
-7,
-59,
-12,
-8,
-32,
39,
-42,
-21,
-13,
-27,
1,
-31,
1,
-14,
-7,
-19,
-34,
5,
12,
-46,
7,
20,
-11,
-17,
-23,
-43,
21,
17,
-4,
25,
-75,
-18,
30,
-13,
-2,
21,
-4,
-9,
-28,
-45,
12,
44,
20,
32,
22,
15,
-23,
23,
-12,
-11,
-30,
0,
1,
15,
25,
7,
66,
-15,
18,
3,
17,
13,
12,
35,
3,
-21,
-5,
-27,
16,
63,
-6,
7,
21,
-83,
17,
10,
30,
-23,
5,
34,
-65,
-10,
-49,
28,
6,
-25,
26,
-65,
-8,
8,
20,
32,
19,
10,
38,
1,
20,
15,
27,
-38,
9,
8,
-7,
-18,
30,
12,
-14,
24,
-17,
-7,
-45,
22,
77,
24,
4,
-71,
35,
-41,
83,
-3,
-10,
-7,
-35,
21,
-88,
11,
23,
-15,
-7,
73,
-38,
22,
54,
-48,
-9,
15,
-16,
-36,
-8,
-29,
-22,
16,
-14,
-2,
5,
-31,
27,
-25,
-52,
8,
1,
0,
-11,
-30,
-9,
8,
78,
-9,
24,
55,
11,
42,
24,
-48,
-9,
-7,
12,
-48,
-20,
-14,
-30,
18,
18,
-1,
-24,
-6,
63,
-2,
19,
-16,
-50,
-20,
26,
6,
60,
-57,
5,
5,
-12,
1,
17,
-7,
6,
21,
-62,
37,
18,
-7,
-44,
9,
-18,
27,
-18,
-5,
5,
-62,
81,
34,
21,
-9,
17,
24,
-37,
32,
-23,
-15,
-1,
53,
3,
1,
-37,
36,
29,
30,
-15,
8,
-26,
-40,
1,
-3,
13,
-43,
2,
-8,
27,
-18,
4,
57,
-1,
31,
23,
29,
-38,
-9,
75,
-25,
2,
-8,
-6,
7,
-11,
-17,
21,
-30,
-4,
-5,
2,
-35,
-11,
40,
-77,
-6,
-16,
8,
20,
15,
22,
0,
-7,
19,
-20,
-14,
4,
-14,
18,
9,
20,
-54,
15,
27,
2,
-40,
79,
-14,
31,
12,
14,
42,
-30,
1,
18,
7,
34,
35,
20,
-32,
-13,
17,
-7,
-36,
-46,
-30,
29,
12,
16,
27,
19,
60,
11,
4,
-13,
-63,
-10,
-56,
-41,
-13,
15,
-21,
-35,
21,
-24,
-58,
-27,
-11,
29,
-2,
-18,
-34,
13,
-19,
-5,
5,
0,
2,
-2,
-17,
13,
-23,
-14,
15,
5,
37,
-26,
13,
-5,
-17,
4,
19,
-47,
16,
19,
-1,
6,
2,
28,
-18,
-10,
28,
-23,
-19,
-21,
-19,
20,
-5,
24,
27,
-14,
-2,
9,
8,
-1,
38,
-18,
21,
36,
-17,
6,
-13,
3,
19,
31,
28,
-42,
21,
-24,
5,
-18,
-44,
6,
-22,
-52,
16,
-5,
-13,
19,
27,
-13,
2,
0,
49,
-14,
-29,
24,
-2,
7,
8,
45,
11,
-40,
-8,
-92,
25,
-6,
27,
2,
-25,
-15,
-31,
47,
-50,
-21,
-31,
-13,
5,
-33,
-32,
35,
30,
50,
13,
-48,
-8,
17,
-13,
-4,
35,
17,
-4,
0,
-33,
-2,
-13,
54,
-22,
-20,
-13,
-20,
-4,
41,
-27,
19,
35,
6,
3,
31,
10,
9,
2,
20,
-20,
17,
-34,
5,
-49,
24,
9,
62,
-47,
-14,
-30,
-1,
14,
11,
-57,
-68,
4,
23,
-5,
43,
-5,
16,
3,
-21,
-17,
17,
32,
14,
-3,
-25,
-6,
-16,
-16,
-72,
-46,
-16,
24,
12,
27,
-6,
14,
-13,
-35,
-21,
-21,
-15,
-34,
7,
-15,
8,
11,
-15,
-17,
29,
35,
-17,
31,
-19,
-15,
-15,
1,
20,
0,
28,
6,
18,
-15,
7,
-9,
-45,
-65,
21,
-6,
50,
9,
16,
6,
-21,
7,
-8,
-2,
-40,
25,
43,
26,
-16,
27,
29,
-8,
4,
-5,
-54,
-29,
64,
-54,
-37,
-6,
-12,
-5,
22,
-14,
41,
-35,
-19,
-30,
16,
53,
-23,
25,
-2,
-27,
5,
12,
-22,
-17,
38,
60,
-15,
-1,
3,
41,
-10,
9,
-39,
3,
-8,
-42,
-12,
-36,
10,
38,
72,
2,
7,
55,
-37,
31,
-27,
96,
-5,
2,
13,
6,
9,
-16,
-16,
-2,
-13,
-18,
4,
4,
7,
-18,
9,
29,
70,
-45,
21,
-18,
-31,
29,
49,
-1,
14,
0,
10,
-12,
8,
-80,
-11,
-40,
-2,
42,
41,
0,
22,
-5,
3,
-32,
10,
17,
15,
-44,
-15,
-43,
-54,
16,
24,
-28,
2,
-8,
1,
4,
12,
15,
1,
-8,
-16,
-24,
-7,
-5,
7,
-6,
-15,
-26,
10,
-29,
0,
-32,
-2,
4,
-11,
4,
-25,
35,
0,
-31,
30,
8,
-37,
-28,
-14,
-17,
-10,
-36,
-2,
27,
21,
11,
-2,
-10,
-6,
0,
-22,
-14,
-2,
-6,
32,
25,
33,
12,
-38,
33,
10,
5,
-33,
8,
2,
3,
-55,
47,
28,
-24,
44,
-16,
-20,
-18,
-34,
-13,
43,
74,
-11,
-2,
-12,
26,
22,
-12,
37,
3,
-12,
-3,
31,
17,
-21,
-19,
-6,
28,
-15,
-17,
44,
-51,
-1,
-25,
-6,
-52,
17,
4,
-8,
-51,
7,
-29,
-15,
-24,
-3,
27,
-32,
18,
-8,
7,
-20,
28,
8,
32,
7,
8,
-83,
-14,
9,
11,
7,
11,
-18,
11,
-8,
-30,
-8,
1,
10,
-2,
11,
4,
15,
-11,
47,
16,
25,
-46,
-45,
83,
-29,
-45,
-16,
14,
-8,
35,
-20,
6,
30,
4,
0,
13,
-37,
27,
-17,
-8,
11,
12,
-11,
-30,
-19,
31,
-5,
-22,
19,
32,
-9,
6,
18,
-19,
4,
-21,
-51,
30,
8,
40,
-15,
-28,
-28,
-36,
-30,
31,
18,
4,
0,
-5,
0,
-6,
4,
0,
-2,
5,
-22,
17,
40,
-27,
-3,
-14,
-15,
-2,
31,
-16,
51,
2,
14,
25,
35,
-36,
36,
3,
-5,
32,
-14,
8,
-8,
13,
-64,
-25,
-37,
-29,
33,
54,
-9,
-4,
9,
-18,
-3,
44,
52,
-39,
-6,
-5,
-5,
4,
-4,
-19,
30,
-7,
-22,
19,
32,
11,
4,
3,
-3,
-10,
-19,
4,
-18,
-56,
-29,
45,
3,
-11,
-6,
8,
-49,
-27,
35,
-21,
4,
14,
-22,
-6,
-19,
9,
17,
24,
-22,
5,
-34,
21,
-9,
-31,
8,
9,
30,
23,
10,
55,
-27,
36,
14,
-5,
12,
-15,
-6,
2,
-21,
37,
57,
-42,
36,
5,
27,
64,
17,
-39,
59
] |
North, J.
We quote from the opinion filed by the trial judge :
“Marcus Tobian and Harry Tobian, copartners, bring this action against the New Center Development Company, H. G. Christman-Burke Company, Batchelder-Wasmund Company, and the Acme Cut Stone Company jointly and severally. The declaration is in assumpsit for work and labor performed, and materials delivered, on a building known as the Fisher Building in the city of Detroit, belonging to the first-named defendant. Plaintiff has declared specially on a contract, and also upon the common counts. No issue was raised during* the trial as to the reasonableness of the items contained in the declaration. The sole question in the case is the determination of who is liable legally for the services admittedly performed. * * *
“The H. G. Christman-Burke Company was the general contractor; Albert Kahn was the architect; and the stone setting work on the building was done by the Batchelder-Wasmund Company and the Acme Cut Stone Company, who seem to have had the contract for this work jointly. These two concerns were subcontractors under the PI. G. ChristmanBurke Company. They, in turn, had a subcontractor, who was the present plaintiff here.
“In the original construction of the building, the method followed was that the owner furnished the stone, and the joint organizations, the Batchelder-Wasmund Company and the Acme Cut Stone Company set the stone which involved the necessary operation of setting the stones in mortar and supplying the anchors which bound the stones to the steel framework of the building*. After this operation the Tobian organization went over the joints which had been raked, and pointed them, and cleaned the wall. * * *
“The Tobians seem to have been paid in full for their work, which seems to have been performed in an entirely satisfactory manner to all concerned.
“On or about the 2d day of May, 1930, a stone fell from the 18th story to the sidewalk below. Immediately following* this the architect wrote a letter to the H. G. Christman-Burke Company, demanding an inspection of all the stone work on the building, without cost to the owner. Mr. Burke, of that organization, passed this information on to at least one of his subcontractors, the Batchelder-Wasmund Company. * * * Several meetings were held, at which the following were present: Mr. Wasmund, who assumedly represented both the stone cutters; Mr. Fettes, representing the architect; and Mr. Blake, representing the New Center Company. At these meetings the demand of the architect for an inspection was talked over. As a result of these conferences, Mr. Marcus Tobian was called in and told that an inspection was desired. No statement as to who was employing him, or who would pay was made by any one present, so far as any of the testimony in the case reveals. There was testimony, however, to the effect that those present told him to go ahead with the work, that they would see that he got his money. The testimony seems to disclose that the Acme organization was not represented at the meetings. Mr. Burke, of the H. Gf. ChristmanBurke organization was present, but Tobian testified that he did .not look to Burke, and therefore the H. G. Christman-Burke Company has been already relieved from liability on motion. There is no testimony that the architect’s demand was communicated to Tobian. There is no testimony that the owner disclaimed an intention to pay. There is no testimony that Wasmund-undertook and agreed to pay the bill. It seems to have been intended among themselves that the stone setters and the owner would divide between themselves the cost and ex pense, but this intention was not disclosed to Tobian, and therefore cannot bind him.
“We have, then, a situation in which the parties have made no express contract. The work and labor has been performed, and the benefits have been received by the owner. This work was demanded by the duly authorized agents, and accepted by the duly authorized agents of the owner. The owner has received the benefits thereof, and it is therefore the conclusion of this court that the work must be paid for at a fair and reasonable válue by the owner.
“Much of the time of the trial was taken up by the discussion of the rights of the various defendants among themselves. It was the suggestion of the court at one stage of the proceedings that this case might be entirely disposed of if it were transferred to the equity side, and the mutual rights and liabilities of the defendants determined in this same proceeding. The consent of all parties was necessary to this course of action. This consent was not obtained. Therefore, but one question is presented on this record. That question is answered by directing that a judgment may be entered in favor of the plaintiff against the defendant, the New Center Development Company, and a judgment of no cause of action as to all the remaining defendants. Obviously, the rights inter se of these defendants are not passed on here. ’ ’
The testimony taken sustains the reasoning and conclusion of the circuit judge. The main appeal is from his judgment in favor of plaintiffs and against the New Center Development Company as the owner of the property for $6,160.50 damages and costs. Of the damages so awarded the New Center Development Company admits its liability for new or additional work done for it by plaintiffs simultaneously with the repair work. This new work amounted to upwards of $1,600. All of the direct or tangible benefits for which this suit is brought were received by the owner of the property, the New Center Development Company; and the judgment entered against it is sustained by the record.
’Plaintiffs have perfected a cross-appeal, asserting a right of recovery against two other defendants. They do not claim they are entitled to a judgment against the H. G. Christman-Burke Company; and as to the defendants Batchelder-Wasmund Company and Acme Cut Stone Company there is a direct conflict in the testimony as to either having expressly agreed to pay plaintiffs for the repair work on this building. The record is such that as to these two defendants we would not be justified in disturbing the determination of the circuit judge wherein he said: “We have, then, a situation in which the parties have made no express contract.”
It follows that plaintiffs ’ cross-appeal, wherein they claim they are entitled to judgment against these two subcontractors cannot be sustained.
The judgment entered in the circuit court is affirmed, with plaintiffs’ costs in this court against the New Center Development Company. The Acme Cut Stone Company will have costs against plaintiffs.
McDonald, C. J., and Potter, Sharpe, Pead, and Wiest, JJ., concurred. Butzel, J., did not sit. Clark, J., took no part in this decision. | [
-25,
3,
-10,
-36,
-28,
11,
9,
18,
38,
-28,
-20,
23,
-4,
-19,
51,
0,
8,
28,
20,
4,
-29,
-15,
3,
-55,
-4,
21,
0,
-28,
27,
0,
-12,
12,
3,
-10,
-61,
18,
39,
-27,
16,
6,
-14,
-20,
1,
-60,
18,
-6,
52,
-41,
11,
0,
9,
52,
8,
-8,
16,
-73,
18,
53,
-47,
37,
44,
-3,
19,
-12,
24,
-13,
-20,
30,
50,
10,
-36,
33,
19,
-51,
-1,
-14,
-19,
2,
-23,
-30,
-24,
-5,
54,
-37,
-40,
39,
-2,
28,
12,
-6,
-9,
12,
24,
57,
-15,
45,
-26,
30,
-25,
12,
16,
8,
-79,
22,
-16,
-16,
-30,
-46,
28,
47,
49,
9,
31,
-1,
-33,
-17,
26,
9,
-34,
-33,
-1,
6,
-42,
7,
-11,
25,
15,
-35,
-39,
-24,
16,
-18,
-4,
-3,
-53,
38,
7,
12,
-26,
21,
-6,
32,
-31,
28,
-39,
19,
21,
63,
-42,
-11,
-17,
-54,
-37,
34,
0,
-30,
-17,
-33,
45,
-6,
23,
-38,
-2,
3,
-17,
-11,
-3,
16,
8,
41,
12,
-8,
25,
-37,
30,
-15,
17,
-8,
-47,
-12,
20,
7,
21,
-28,
22,
-54,
-10,
0,
40,
36,
27,
-6,
-100,
48,
-51,
45,
-28,
20,
30,
-45,
-14,
0,
9,
-61,
-19,
15,
60,
-21,
38,
-4,
19,
10,
-5,
-28,
-9,
-20,
-27,
-20,
11,
-20,
-4,
-33,
-27,
18,
-56,
-24,
7,
29,
-8,
-39,
-12,
-26,
25,
37,
20,
9,
63,
5,
-19,
33,
5,
8,
-43,
6,
-16,
11,
-48,
-6,
-23,
-26,
9,
24,
0,
-4,
-15,
13,
-35,
7,
4,
-47,
-6,
7,
-28,
-7,
6,
-12,
-19,
15,
-22,
45,
-62,
31,
-17,
53,
-14,
-49,
7,
17,
34,
10,
-63,
-12,
-11,
-12,
12,
41,
7,
13,
-40,
-48,
47,
-12,
13,
-19,
53,
46,
-38,
-25,
-31,
1,
-45,
24,
34,
11,
8,
43,
-31,
35,
2,
55,
40,
-41,
9,
-1,
-5,
57,
11,
34,
35,
-25,
21,
13,
-21,
12,
0,
-39,
3,
-4,
13,
-13,
10,
28,
-4,
38,
-47,
21,
39,
-19,
-22,
9,
0,
21,
36,
-49,
-34,
27,
-29,
-25,
-37,
13,
18,
-2,
-42,
20,
28,
49,
3,
17,
-15,
9,
82,
-12,
36,
21,
-74,
-22,
-35,
-1,
12,
67,
-62,
13,
-84,
-2,
-22,
-4,
-11,
19,
-23,
45,
1,
18,
19,
-6,
29,
6,
-10,
4,
-41,
0,
-19,
-33,
21,
24,
5,
-79,
-11,
12,
16,
-9,
-15,
18,
20,
-2,
-11,
-1,
13,
5,
-44,
-3,
-26,
-3,
10,
2,
-15,
12,
26,
14,
20,
32,
14,
30,
0,
-22,
20,
-22,
-12,
18,
-6,
13,
-66,
-2,
-25,
-21,
-13,
-7,
-42,
-23,
-46,
12,
-58,
29,
-58,
-14,
-9,
6,
13,
51,
61,
0,
20,
7,
-13,
21,
-7,
-49,
-16,
-9,
73,
37,
-2,
-2,
41,
-29,
-19,
7,
-15,
9,
-16,
38,
-3,
-9,
30,
-4,
-22,
-26,
22,
8,
-22,
16,
19,
-6,
22,
30,
-47,
-33,
4,
13,
-30,
7,
58,
13,
-9,
-28,
1,
16,
-9,
-13,
2,
38,
-21,
-15,
-33,
-4,
32,
-14,
31,
-56,
21,
42,
-30,
-46,
11,
23,
-10,
-27,
24,
30,
-10,
57,
-1,
7,
-3,
18,
11,
7,
28,
28,
9,
-29,
43,
-12,
-8,
74,
-22,
-7,
23,
-24,
12,
-28,
4,
6,
8,
10,
-16,
21,
-12,
33,
15,
-18,
-29,
1,
-35,
5,
1,
-18,
34,
5,
-45,
6,
-40,
19,
68,
4,
59,
-1,
-10,
-60,
51,
-22,
-36,
17,
7,
-12,
-41,
-2,
-24,
5,
-13,
-51,
-8,
-52,
-37,
-18,
-32,
37,
34,
31,
-8,
16,
-27,
-8,
-28,
-22,
-16,
-23,
14,
31,
33,
25,
21,
-36,
-33,
-29,
-41,
-16,
-28,
34,
45,
-22,
23,
-20,
-19,
-29,
-16,
38,
-22,
-24,
43,
40,
13,
-57,
-23,
16,
48,
71,
27,
-7,
-44,
-12,
-55,
7,
26,
17,
29,
-28,
55,
-2,
-15,
5,
9,
24,
-21,
-8,
-54,
-4,
20,
33,
26,
38,
12,
31,
84,
-13,
-15,
-20,
-10,
-36,
-15,
-31,
35,
-6,
21,
24,
6,
-1,
35,
22,
36,
0,
-2,
14,
26,
23,
15,
8,
-19,
19,
1,
2,
28,
-14,
-24,
26,
24,
-46,
-5,
-28,
-7,
-46,
-47,
23,
32,
-44,
3,
62,
32,
6,
3,
-3,
-40,
3,
62,
20,
4,
17,
-8,
-16,
-4,
5,
32,
-13,
-40,
-8,
-21,
90,
-38,
-4,
-75,
16,
32,
-38,
13,
-3,
20,
-18,
-28,
46,
-35,
-6,
12,
-51,
9,
24,
0,
17,
-34,
-27,
-36,
-6,
-3,
-9,
-31,
-20,
-47,
-25,
40,
6,
-8,
16,
-58,
23,
31,
-18,
39,
-47,
-43,
-37,
-26,
27,
-8,
-43,
16,
-16,
49,
0,
13,
6,
18,
-34,
-31,
11,
-10,
-13,
-12,
18,
1,
-33,
23,
9,
-2,
-1,
16,
48,
-14,
4,
36,
8,
36,
76,
19,
-18,
38,
-11,
-15,
-24,
-33,
38,
7,
-2,
2,
42,
39,
34,
-8,
-22,
-41,
-6,
57,
8,
-21,
-23,
40,
-54,
-10,
39,
-16,
20,
1,
18,
-83,
19,
-14,
0,
25,
-16,
-17,
6,
0,
-5,
60,
-50,
-6,
68,
5,
25,
-12,
61,
12,
-31,
8,
-35,
-10,
26,
12,
9,
-53,
23,
-52,
13,
-27,
13,
0,
-23,
2,
-5,
-33,
4,
18,
44,
30,
-18,
-62,
40,
18,
-42,
-32,
-6,
-19,
-23,
42,
22,
-4,
-38,
12,
-18,
0,
-45,
30,
-54,
-10,
62,
25,
-25,
-43,
-30,
34,
23,
27,
61,
42,
-33,
3,
9,
-3,
-19,
-3,
-22,
25,
-12,
-37,
-6,
66,
30,
23,
34,
-24,
58,
-5,
-34,
15,
29,
-18,
2,
-7,
21,
-27,
7,
-27,
-1,
-6,
-15,
-57,
-21,
-40,
-12,
-21,
33,
-11,
45,
-28,
-13,
36,
10,
76,
-26,
4,
-55,
-54,
-44,
5,
-44,
2,
-7,
0,
-25,
-28,
-62,
-8,
-23,
33,
40,
-48,
37,
-9,
-36,
-10,
41,
-13,
-54,
19,
-3,
-1,
-11,
27,
-22,
21,
-14,
37,
-47,
19,
20,
-12,
-19,
-9,
-35,
-44,
21,
11,
31,
13,
-16,
2,
18,
-1,
-25,
48,
-19,
-14,
-35,
31,
-5,
-43,
-17,
-23,
-25,
17,
-4,
-13,
-19,
29,
25,
15,
-40,
-3,
10,
52,
1,
62,
-22,
-32,
18,
0,
10,
9,
48,
-65,
-6,
5,
-50,
2,
9,
-22,
58
] |
Potter, J.
Defendant, convicted of embezzlement, appeals. The information filed contains four counts charging him with, 1. embezzlement; 2. felonious abstraction; 3. fraudulent misapplication; and 4. fraudulent misappropriation; of $12,480.52, from the Cooperative Savings & Loan Association of Flint, of which he was secretary-treasurer, director, and agent.
(1) The offense of embezzlement has been much discussed. Taylor v. Kneeland, 1 Doug. 67; People v. McKinney, 10 Mich. 54; People v. Butts, 128 Mich. 208; 20 C. J. p. 409; 9 R. C. L. p. 1264. In this State it was, at the time the offenses charged are alleged to have been committed, covered by statutes. 3 Comp. Laws 1929, §§ 16911, 16914, 16932, 16980, 12160, 16981, 17274.
(2) The information filed charged different offenses, in separate counts, growing out of the same transaction, covered by the same testimony. There was no error in the trial court refusing to compel an election between counts. People v. Sweeney, 55 Mich. 586; People v. McDowell, 63 Mich. 229; People v. Prague, 72 Mich. 178; People v. Summers, 115 Mich. 537; People v. Durham, 170 Mich. 598; People v. Warner, 201 Mich. 547; People v. Hatfield, 234 Mich. 574.
(3) The prosecuting attorney, in his opening statement, charged defendant was guilty of forgery. On the trial he offered proof of it. The forgery, if any existed, which is, under the testimony, doubtful, related to a separate and distinct transaction. The proof offered was proof to establish a separate and distinct offense. The prosecuting attorney was in error in making reference thereto in his opening statement to the jury. The trial court was in error in receiving proof of such forgery. People v. Jenness, 5 Mich. 305; Lightfoot v. People, 16 Mich. 507; People v. Schweitzer, 23 Mich. 301; People v. Pinkerton, 79 Mich. 110; People v. Betts, 94 Mich. 642; People v. Bennett, 122 Mich. 281; People v. Ascher, 126 Mich. 637; People v. Peck, 139 Mich. 680; People v. Collins, 144 Mich. 121; People v. Klise, 156 Mich. 373; People v. Neely, 171 Mich. 249; People v. Rice, 206 Mich. 644; People v. Wheaton, 207 Mich. 173; People v. Rajona, 208 Mich. 633.
(4) The right of the trial court to comment upon the testimony and character of witnesses is given by statute. 3 Comp. Laws 1929, § 17322. The statute is not to be construed to deprive defendant of a trial by jury, to which he is constitutionally entitled; to enable the trial court to deprive defendant of a fair trial; to permit the trial court to usurp the functions of the jury or to direct a verdict upon disputed questions of fact. People v. Lyons, 49 Mich. 78; People v. Hare, 57 Mich. 505; Hicks v. United States, 2 Okla. Crim. 626 (103 Pac. 873); Roberson v. State, 40 Fla. 509 (24 South. 474); People v. Faczewski, 242 Mich. 523; People v. Kasem, 230 Mich. 278; People v. Lintz, 244 Mich. 603.
(5) One Clampert, a witness for the people, was asked, on cross-examination, about his receipt of $1,000 in connection with the sale of the Citizens Building & Loan Association of Saginaw to the Cooperative Savings & Loan Association of Flint. He testified he got the money from the undivided profits of the Saginaw company. It was developed he received the money from the Cooperative Sav mgs & Loan Association of Flint while he was an officer of the Saginaw company. He was subject to rigid cross-examination to show his interest and possible prior corrupt conduct as bearing upon his credibility. The trial court interrupted and said:
“I can say the witness has been truthful, honest, and fair in his answers here, and there is no reason for mailing that statement on the record.”
Defendant had a right to show the truth, if possible, by the witness’ cross-examination; the source from which he received the $1,000; whether it was in payment of an honest claim, or a colorable settlement of a fictitious claim to cover the consideration he received from the purchasing company for selling out the company with which he was connected; and the trial judge ought not to have vouched for his truthfulness, fairness, and honesty. His honesty, truthfulness, and fairness were questions for the jury.
(6) It is claimed the trial court erred in receiving evidence and charging the jury on the subject of conspiracy.
a. All acts and facts upon which any reasonable presumption of the truth or falsity of the charge made in the information could be founded were admissible. Unless as admissions or confessions or given for the purpose of explanation or qualification, proof of subsequent acts and statements of a party are not admissible. Dillin v. People, 8 Mich. 357. There must be some known and ordinary connection between the facts proposed to be shown and the ultimate facts to be proven, and the former must have some logical tendency to prove the latter. Linn v. Gilman, 46 Mich. 628.
b. Hearsay testimony, evidence of what someone else said, is not proof of the truth of what is claimed to have been said. The essential right of cross-examination is absent. When there is a conspiracy — when persons are engaged in a common enterprise — and there is mutual agency, evidence of statements of one conspirator may be introduced against other conspirators. Without the existence of a conspiracy — the existence of agency — testimony otherwise hearsay is not admissible. People v. Fritch, 170 Mich. 258; People v. Lay, 193 Mich. 476; People v. Salsbury, 134 Mich. 537; People v. Pitcher, 15 Mich. 397; People v. Mol, 137 Mich. 692 (68 L. R. A. 871, 4 Ann. Cas. 960).
c. What was said or done by one of the alleged conspirators before the conspiracy was formed or after its object was attained and its work fully completed, not in the presence or hearing of the others and not brought to their knowledge and ratified by them, is not admissible against them (People v. Parker, 67 Mich. 222 [11 Am. St. Rep. 578]) for the reason the basic element of joint agency does not exist. They are statements made before the conception or after the completion of the offense, to which defendant is not a party and by which he may not be bound. People v. Butts, supra.
d. The res gestae in such cases is limited to the period during which the parties are engaged in the unlawful enterprise. People v. Woods, 206 Mich. 11; People v. Lay, supra; Hamilton v. Smith, 39 Mich. 222; People v. Pitcher, supra.
e. Evidence of acts or conduct of defendant such as the fabrication of a false statement to exculpate him, attempts to mislead the prosecution, conceal defendant’s guilt, suppress testimony, procure perjured testimony, or of acts indicating alleged co-con spirators were devising means to avoid exposure was admissible. People v. Arnold, 43 Mich. 303 (38 Am. Rep. 182); People v. Salsbury, supra; People v. Mol, supra.
f. There was no error in the opening statement of the prosecuting attorney to the jury in stating the offenses charged in the information were committed by defendant by reason of a conspiracy entered into by defendant with other persons, prior to the date of the alleged commission of the offenses. Hamilton v. Smith, supra; People v. McGarry, 136 Mich. 316.
(7) Frank E. Burgess was president of the Cooperative Savings & Loan Association of Flint. He testified to the custom of the company and to its practices, and that records were subsequently made. The trial court said:
“The directors or officers, after this money was unlawfully taken out, can’t make minutes whereby they cover up the acts of the directors or officers of the company.”
This comment assumed the unlawful taking of the money, the principal question in issue, and ought not to have been made.
(8) Defendant offered proof of good general reputation for truth, veracity, honesty, integrity, and as a peaceable law-abiding citizen, to establish good character. He proffered an appropriate request to charge, which was refused by the trial court. The rule as to good character, the manner of proving it, and its effect, has been many times considered. The charge given did not conform to the well-settled legal rules. People v. Garbutt, 17 Mich. 9, 26 (97 Am. Dec. 162); Lenox v. Fuller, 39 Mich. 268; In re Thayer’s Estate, 188 Mich. 261; People v. Woods, supra; 10 R. C. L. p. 954. The charge as given, and the failure to give defendant’s request to charge on good character, was error. Other errors are assigned; they are not likely to arise on a new trial.
Conviction reversed. New trial granted.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
19,
-6,
-4,
1,
-34,
6,
-12,
-44,
-33,
10,
23,
-39,
28,
-35,
-31,
-40,
28,
-2,
31,
-17,
13,
-23,
-14,
20,
-10,
13,
-3,
55,
-40,
-21,
-18,
32,
7,
-29,
-16,
6,
19,
34,
5,
-18,
5,
-50,
-33,
-2,
-14,
-11,
22,
-5,
27,
-25,
28,
-29,
11,
-23,
1,
-46,
12,
-25,
27,
-47,
31,
28,
11,
-15,
11,
-65,
10,
40,
-42,
-6,
-34,
-5,
-20,
-17,
-19,
-1,
8,
15,
-47,
17,
-23,
-11,
1,
-19,
25,
-14,
-13,
4,
0,
-33,
-38,
-8,
-1,
-1,
70,
-30,
13,
-4,
28,
-18,
-57,
7,
-8,
35,
-9,
10,
-17,
-20,
-28,
34,
-45,
-23,
17,
-12,
-24,
-68,
-29,
-40,
46,
-17,
-1,
-19,
22,
20,
20,
15,
-5,
-24,
27,
28,
33,
52,
-37,
-35,
-55,
9,
18,
-19,
29,
35,
-35,
-17,
-3,
24,
-22,
33,
-4,
27,
28,
-20,
-60,
-22,
27,
23,
-4,
12,
-5,
-62,
12,
-29,
-20,
-2,
-10,
-17,
-29,
10,
14,
-9,
12,
-45,
-33,
-10,
-17,
-8,
16,
4,
-26,
17,
32,
-20,
40,
24,
10,
32,
-39,
-12,
-14,
-12,
9,
-9,
63,
23,
-57,
-10,
27,
53,
-45,
26,
41,
-105,
-3,
-69,
50,
-47,
4,
-14,
3,
-26,
19,
4,
-27,
-38,
76,
-26,
12,
35,
-11,
-35,
30,
-12,
-39,
15,
-24,
38,
-19,
7,
-8,
14,
14,
-12,
-10,
-19,
29,
-35,
-34,
-40,
-27,
-13,
6,
12,
-83,
-72,
3,
-21,
19,
24,
0,
25,
-36,
56,
-1,
8,
-12,
13,
-29,
30,
23,
-16,
-18,
60,
-16,
63,
-1,
-12,
-54,
13,
20,
22,
-31,
52,
-28,
-38,
3,
31,
10,
5,
-63,
44,
33,
9,
18,
6,
25,
14,
51,
58,
-54,
79,
32,
-31,
-24,
-34,
-10,
9,
53,
39,
12,
-56,
8,
-6,
-11,
13,
14,
-47,
20,
-11,
20,
-33,
-74,
-21,
74,
17,
-18,
43,
42,
-20,
24,
4,
23,
14,
0,
-1,
-36,
0,
10,
-30,
11,
-35,
-17,
3,
-28,
-6,
3,
-34,
-18,
-10,
8,
-33,
15,
7,
-7,
-8,
49,
-1,
-10,
24,
-8,
8,
-20,
-37,
5,
-36,
18,
41,
-6,
-13,
16,
-3,
-29,
36,
-15,
4,
35,
-15,
13,
1,
-26,
-16,
35,
26,
9,
-28,
-39,
0,
23,
-31,
-14,
-26,
-31,
9,
-39,
14,
19,
-1,
63,
-46,
2,
30,
-44,
15,
-40,
44,
-15,
-23,
-23,
6,
10,
-9,
0,
-12,
15,
50,
22,
18,
-64,
-5,
-29,
43,
8,
2,
41,
13,
-20,
32,
-5,
-44,
65,
-7,
49,
-12,
24,
21,
-1,
-73,
50,
0,
-1,
51,
21,
-20,
-2,
28,
47,
-68,
85,
21,
-35,
-39,
-39,
14,
24,
11,
17,
38,
26,
-38,
-38,
0,
21,
21,
-11,
30,
-55,
-37,
38,
14,
33,
-27,
16,
-60,
-43,
18,
-17,
-53,
-19,
4,
-1,
-22,
2,
20,
20,
-5,
-46,
-4,
-28,
31,
35,
-20,
0,
7,
31,
38,
-47,
-23,
20,
-37,
-4,
-64,
-46,
-38,
-3,
-8,
-4,
20,
39,
38,
-58,
-4,
13,
41,
-1,
26,
-32,
-15,
43,
57,
45,
-30,
38,
56,
-26,
19,
0,
15,
-20,
-19,
34,
-17,
-3,
34,
0,
-15,
-3,
30,
16,
35,
11,
0,
-8,
20,
11,
-10,
-11,
17,
0,
-25,
-21,
5,
-18,
-2,
21,
41,
45,
43,
-11,
-5,
-25,
-39,
38,
13,
10,
-21,
-24,
19,
-27,
22,
-2,
16,
40,
-48,
-42,
-21,
46,
-18,
-6,
-14,
-4,
-21,
3,
-49,
16,
-3,
17,
9,
11,
52,
29,
-6,
5,
7,
9,
-5,
-15,
-35,
22,
37,
21,
7,
41,
-4,
30,
-37,
-4,
19,
7,
-18,
-36,
-43,
42,
14,
38,
-17,
-51,
-22,
39,
-22,
-5,
10,
-54,
-14,
54,
-5,
3,
-22,
11,
16,
-55,
-49,
-34,
23,
-17,
-27,
30,
-10,
79,
-28,
-40,
19,
-41,
-21,
7,
-39,
-46,
45,
13,
16,
2,
15,
-21,
-3,
-6,
27,
10,
-13,
29,
17,
-22,
-17,
2,
-22,
-8,
35,
20,
-25,
-9,
-7,
29,
10,
-40,
-23,
25,
23,
-35,
-8,
-18,
16,
57,
-17,
45,
-26,
-11,
-59,
26,
-12,
27,
-53,
-22,
0,
5,
-19,
2,
-21,
12,
8,
0,
-2,
9,
34,
-47,
-19,
11,
57,
-45,
-6,
32,
2,
59,
-29,
1,
-31,
-13,
-4,
32,
-16,
-12,
5,
-5,
-18,
-1,
8,
-21,
21,
-1,
32,
-1,
12,
-64,
-5,
-31,
28,
-43,
-43,
3,
4,
27,
-27,
40,
-5,
36,
-23,
0,
-16,
6,
17,
46,
21,
-8,
43,
-38,
44,
17,
-9,
-25,
-30,
-20,
-10,
41,
-6,
44,
-9,
44,
75,
24,
53,
-41,
29,
7,
-18,
-32,
-51,
-28,
2,
0,
-16,
-28,
23,
28,
17,
-2,
-39,
-26,
-9,
-12,
21,
-52,
-1,
-21,
-48,
26,
-23,
82,
11,
-12,
7,
34,
-11,
5,
37,
-12,
25,
-5,
-20,
6,
-21,
2,
24,
6,
7,
27,
-2,
7,
33,
24,
30,
-24,
60,
19,
2,
29,
-10,
1,
23,
24,
-50,
25,
11,
-8,
-11,
-24,
-51,
-20,
20,
-20,
-16,
-64,
11,
-23,
13,
-70,
-19,
-16,
35,
19,
34,
35,
-7,
19,
16,
-15,
43,
27,
-53,
-22,
19,
0,
56,
21,
6,
-10,
-23,
36,
5,
-17,
-21,
-3,
52,
7,
29,
42,
29,
38,
18,
-28,
39,
-12,
-4,
-10,
-23,
-14,
-8,
-8,
7,
-34,
-22,
32,
10,
15,
34,
-8,
-40,
-35,
-6,
3,
-34,
14,
2,
18,
-64,
-24,
37,
-14,
13,
-5,
-2,
-27,
-35,
5,
-28,
0,
-42,
69,
-18,
-11,
-28,
7,
-11,
25,
-23,
-9,
14,
0,
0,
-7,
18,
-54,
-32,
29,
36,
15,
-12,
-24,
29,
0,
57,
-4,
-24,
30,
14,
-12,
44,
2,
25,
-38,
-3,
35,
-5,
40,
-79,
82,
-2,
7,
14,
-23,
-12,
-12,
12,
-54,
-29,
-21,
24,
-74,
-9,
48,
68,
-25,
-21,
-4,
-55,
13,
-48,
8,
22,
-16,
-32,
2,
11,
-25,
-47,
47,
17,
-8,
-35,
-43,
-42,
26,
-41,
28,
-19,
16,
-17,
13,
-34,
-53,
23,
30,
-13,
36,
16,
-3,
10,
41,
40,
48,
-11,
20,
-1,
-6,
-51,
-12,
-37,
28,
15,
25,
9,
45,
1,
9,
12,
5,
-12,
19,
-26,
7,
-31,
-52,
48,
-14,
48,
-27,
-73,
9,
22,
-46,
66
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.