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North, J.
(dissenting). These two cases present the same question and have been consolidated. The commissioners on claims in the estate of Patrick J. Dunn, deceased, allowed a claim of George A. Dunn in the sum of $1,688, and also a claim of Irene Mason for $212.56. Simon E. Dunn, one of the heirs-at-law, sought to perfect an appeal in the circuit court. This seems to have been accomplished May 1, 1924, with the exception that the appellant failed to include in the record of his appeal a certified copy of the report of the commissioners on claims as re quired by section 14154, 3 Comp. Laws 1915. Counsel for claimants entered a general appearance in tbe circuit court May 21, 1924. Substantially three years later (May 16, 1927) the claimants filed a motion to dismiss the appeal because of the failure to include in the record a copy of the commissioners ’ findings. "While the motion was pending a certified copy of these findings was filed in the circuit court. The motion was heard and the appeal dismissed June 11, 1927. It is here on an application for a writ of mandamus to compel the circuit judge to vacate the order of dismissal. Under the holding of Szarama v. Tylman’s Estate, 237 Mich. 676, the application must be denied unless the record sustains plaintiff’s claim that there has been a waiver. See, also, Merriman v. Jackson Circuit Judge, 95 Mich. 277. The plaintiff’s petition contains the following:
“That thereafter (after the appeal to the circuit court) on two occasions when said appeal was reached for trial, the said attorney for George A. Dunn did appear before the presiding judge of the Wayne county circuit and did request and obtain postponements of the trial of said cause on the ground that his client was absent from the jurisdiction; that at no time in his appearances requesting adjournments, did the said attorney make any objections to or call the attention of the court to any imperfections in the appeal nor to any irregularities in the talcing of same.”
The allegations in the foregoing paragraph were not expressly denied in the return filed herein, and therefore they must be accepted as true. City of Lansing v. Eaton Circuit Judge, 232 Mich. 690. But, granting the truth of these allegations, we are of the opinion that the facts of the case as disclosed are not sufficient to constitute a waiver. The re turn of the circuit judge herein states that there is “nothing of record either in the probate court or the circuit court of this county” from which he could determine the truth of plaintiff’s allegation that the claimant requested and obtained the postponement of the trial on two occasions. Evidently the continuances were secured by mere requests rather than by formal motions for a continuance.Had there been a motion for a continuance in the circuit court, it is fair to assume that some record thereof would be,available. We are given no information as to when either of the two applications was made. From the record we do not know whether either was within the first ten days of the term of-the circuit court next succeeding the thirty-day period within which the appeal might have been perfected; and that because of this being the fact the claimants by their conduct may have deprived the appellant of his opportunity to have the appeal reinstated under the provision of section 14154, 3 Comp. Laws 1915. The plaintiff herein relies on Snyder v. Washtenaw Circuit Judge, 80 Mich. 511. But, as was pointed out by Chief Justice Hooker in Merriman v. Jackson Circuit Judge, supra, the reason for the holding in the Snyder Case that there was a waiver of the statutory provision is that “there was yet time to have moved within the ten-day provision (to have the appeal reinstated) when the alleged waiver occurred.” The present case must be distinguished from the Snyder Case because, if we assume the reason urged is otherwise sufficient, the record does not show that there was an application for a continuance during the period within which plaintiff’s appeal, to the circuit court might have been reinstated.
It has been urged herein that by entering a general appearance the appellees have waived the fail ure of the appellant to comply with the statutory provisions. There are decisions in this State holding that literal compliance with this statute may he waived. Snyder v. Washtenaw Circuit Judge, supra; Gorton v. Livingston Circuit Judge, 97 Mich. 561. While it appears from this record that 42 days after the service of the notice of claim of appeal the appellees entered a general appearance, there is no showing that any action was taken by the appellees which was in any way misleading or prejudicial to the appellant. With the exception of making two informal requests, for continuances at times not fixed by the record, the first step taken towards a disposition of this appeal by either the appellant or appellees was the latter’s motion to' dismiss.
“This (the failure to perfect the record on appeal) was a matter affecting the jurisdiction of the circuit court and could be raised at any time in the subsequent progress of the case.” Sokup v. Davis’ Estate, 206 Mich. 144.
In the Sokup Case this question was raised by motion before going to a hearing on the merits, the same as it is here raised; and Justice Stone, speaking for the court, said:
“It cannot he that this objection was waived by the defendant by taking part in the trial, especially where, as here appears, repeated motions were made to dismiss the appeal, and at the trial objection was made to the introduction of any evidence by the plaintiff. Under the statutes and the authorities, we cannot do otherwise than to hold that the appeal should have been dismissed by the court below.”
No prejudice resulted to the appellant from the entry of a general appearance by the appellees and therefore this should not be held to constitute a waiver or work an estoppel. At most, the general appearance gave the appellate court jurisdiction of the person only and not of the subject-matter of the litigation.
The practice under this statute should' be distinguished from the statutory practice governing appeals from justice’s courts to the circuit courts, because this statute contains the provision not found in the sections governing justice’s court appeals that in case the record is not filed in the circuit court as required “within the time herein directed” the appeal ceases to be effective and the former order of the lower court stands as though no appeal had been taken; with a provision for a reinstatement of the appeal within a time limited.
In the Merriman Case, supra, Chief Justice Hooker clearly and forcefully pointed out the reason for adding this provision to the statute; and in the recent case of Szarama v. Tylman’s Estate, supra, Justice Snow said:
“The right of the legislature to provide for time limitation of the various steps necessary to be taken to the circuit court in estate matters cannot be questioned. Expedition in the settlement of estates' demands it. When it is so fixed definitely, as in the statute under consideration, the courts should not extend it.”
While it seems to be somewhat common in the practice, there is no necessity for filing a general appearance in the circuit court by an appellee in this kind of a proceeding. After the notice of the claim of appeal is given, a case goes on the calendar for the next term of the court, without further application by either party. To extend the time for perfecting an appeal on the pretext that entering a general appearance after service of notice on an appellee constitutes a waiver is to inject uncertainty into the practice and to defeat the purpose sought to be accomplished by the statute.
There is no claim made in this record, nor can there be, that the party attempting to make this appeal “has been prevented from perfecting the same by circumstances not under his control.” Nothing on the part of the appellees is disclosed by this record which should be held to be a waiver of the appellant’s neglect or failure to comply with the mandatory provision of the statute. The appeal was properly dismissed, and the application for the writ should be denied, with costs to the appellees.
Sharpe, J., concurred with North, J.
Fellows, J.
The appellees entered a general appearance in the circuit court approximately three years before they made their motion to dismiss. In my judgment this waived the defect in the manner of bringing the case to that court. McCombs v. Johnson, 47 Mich. 592; Hamilton v. Wayne Circuit Judge, 52 Mich. 409; Sherwood v. Ionia Circuit Judge, 107 Mich. 136; Goodin v. Van Haaften, 130 Mich. 386. In the last-cited case, the judgment in justice’s court was rendered August 5th; the affidavit and bond on appeal were not filed until August 23d. Obviously the statutory provision that they shall be filed within five days is mandatory. But there had been a general appearance by the appellee and the case had been noticed for trial. In disposing of the.case, Mr. Justice Grant, speaking for the court, said:
“The general appearance and notice of trial operated as a waiver of the failure to file the bond and affidavit within the time required by the statute, and gave the circuit court jurisdiction of the case.”
In 4 C. J. p. 1353, it is said:
“A general appearance on the part of defendant, however made, or any act or acts which may be con strued as an appearance, waives any objection based on the want of issuance of process or of service thereof, or any objection based on the want of a return of process. So a general appearance to the original action after the filing of a cross complaint carries with it an appearance to the cross complaint.
“Notices. The same principle obtains in regard to notices required to be given. All those forms of notice which resemble process or summons are dispensed with by a general appearance.”
In Sokup v. Davis’ Estate, 206 Mich. 144, cited by my Brother, there had been two motions to dismiss the appeal, both of which had been denied by the trial judge; application to this court for certiorari to review such orders had been denied. There was nothing further could be done except to try the case after again raising and saving the question. Under these circumstances, there was no waiver, and in the absence of waiver the question was open at any time. But Mr. Justice Stone expressly points out that: ‘ ‘ There is no claim that the defendant waived notice of the service. ’ ’ Here, without in any way questioning the regularity of the appeal, there was a general appearance. Recognizing that the appeal was properly taken and that the case was pending in the circuit court, application was then made on two occasions for postponement of the trial. About three years after the appeal was taken and the appearance entered, the jurisdiction of the circuit court was for the first time questioned and the regularity of the appeal assailed. I think the general appearance under the authorities I have cited waived the right to then raise these questions.
In my judgment, the writ should issue.
Fead, C. J., and Wiest, Clark, McDonald, and Potter, JJ., concurred with Fellows, J, | [
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Fead, C. J.
Plaintiff is engaged in tbe city of Detroit in the business of delivering merchandise for retail and wholesale houses to their customers. He had insurance with defendant, which, among other things, covered loss by theft of goods in process of delivery by him. He obtained the insurance from Kelly, Halla, Peacock & Hughes, general agents of defendant for Wayne county, who had authority to issue and cancel policies, receive claims of loss and to deny liability when no policy was in force. Plaintiff brought this suit on the policy on account of theft from his driver on November 5, 1923, and offered competent evidence of loss; and also for prior alleged thefts which the court properly held were not sufficiently proved to warrant their sub mission to the jury as the testimony thereon was hearsay. The jury found for defendant. The principal questions, both of which «were submitted to the jury, involved plaintiff’s failure to file proofs of loss and a claimed cancellation of the policy.
On November 6th, plaintiff reported the loss of November 5th to Kelly, Halla, Peacock & Hughes, who, on November 12th, denied responsibility on the ground that the policy had been canceled. The undisputed evidence of a member of the firm was that it had authority to deny liability on that ground. Denial of liability on the ground of cancellation of the policy, by the insurer or its authorized agent, is a waiver of proof of loss. Improved Match Co. v. Insurance Co., 122 Mich. 256.
On October 22d, Kelly, Halla, Peacock & Hughes wrote plaintiff, complaining of the number of losses he had reported, and said:
“In view of our experience with this policy we could not ask our company to continue on same, and ask that you kindly endeavor to procure this insurance with some other company by November 1st, at which time we would like to be relieved.”
On October 31st, plaintiff replied and expressed surprise that “you propose to cancel Commercial Casualty Policy C. R. 6031, effective November 1st;” explained the reasons for the number of claims; stated, “We are withholding further payments on our account until we receive credit memorandums covering refund on this policy from November 1st;” and concluded, “Do we understand that the insurance covering inside holdup is to be canceled also November 1st? Please advise.” No reply was made to this letter.
Notice of cancellation of an insurance policy must be according to the provisions of the policy and be peremptory, explicit, and unconditional. American Fidelity Co. v. R. L. Ginsburg Sons’ Co., 187 Mich. 264. It is not sufficient if it is equivocal or merely states a desire or intention to cancel. 14 it. C. L. p. 1009.
The policy provided:
“This policy may be canceled' at any time by either of the parties upon written notice to the other party stating when thereafter cancellation shall be effective and the date of cancellation shall then be the end of the policy period.”
Defendant concedes that its notice of October 22d was not sufficient, but contends that plaintiff’s reply constituted a meeting of minds and ratification of cancellation. Defective cancellation may be ratified (26 C. J. p. 143), and, of course, strict policy notice may be waived. But plaintiff’s letter may be fairly construed as no more than the statement, of his assumption that defendant’s agents would carry out their desire to cancel. There was no present cancellation effective later. Future action by defendant was required.- See Chrisman & Sawyer Banking Co. v. Insurance Co., 75 Mo., App. 310, 314. Before loss, no further action was had by way of notice to plaintiff, through submission of the requested memorandum or otherwise, that the desire to cancel had been carried out; nor, before loss, was any act of plaintiff or defendant shown which indicated that either had treated the policy as at an end, or so claimed. Upon the record, the court should have held and directed the jury that the policy had not been canceled.
Judgment is reversed, and new trial ordered, with costs.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Per Curiam.
This case is a companion of Bay City Dredge Works v. Fox, ante, 523, and is ruled thereby.
Affirmed. | [
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Potter, J.
Plaintiff commenced suit in Lenawee circuit, in chancery, against defendant to remove cloud from title caused by a levy by defendant on 80 acres of land. Plaintiff, November 10,1925, made, executed, and delivered to Glenn B. Yeagley a deed of the premises, recorded in the office of the register of deeds of Lenawee county. Simultaneously a contract was executed between the parties as follows:
“In consideration of a deed by Flora J. Salisbury to Glenn B. Yeagley of certain land in Medina township, Lenawee county, Michigan, described as the west one-half of the northwest quarter of section 11, in township 8 south, range 1 east, the said Glenn B. Yeagley and his wife Yera, parties of the first part, in this instrument do hereby agree to furnish to the said Flora J. Salisbury a home with us for and during her natural lifetime, and do agree to support and care for her both in sickness and in health during said period, we do further agree that the said Flora J. Salisbury may, if she desires, cut and sell timber from said lands above described, any time she may desire. We do further agree that in case said Glenn B. Yeagley shall die before the demise of said Flora J. Salisbury, that this, instrument may and shall be treated as a conveyance of the premises above described from us to said Flora J. Salisbury, and shall convey to her all of the interest acquired by said Glenn B. Yeagley, in a deed of this date above mentioned. We do further agree that this instrument shall be deposited with B. D. Chandler of Hudson, Michigan, and shall be retained by him during the lifetime of said Flora J. Salisbury and in case other demise preceding that of Glenn B. Yeagley, said Chandler shall destroy this instrument and same shall be void, but in case of the death of said Glenn B. Yeagley before the demise of said Flora J. Salisbury, then this instrument shall be delivered to said Flora J. Salisbury for the purpose of conveying to her a title in fee simple to the premises above described.”
The contract was recorded in the office of the register of deeds for Lenawee county. Yeagley became indebted to defendant, suit was instituted against him, judgment obtained, execution issued and levied on the premises. The sole question is whether these instruments conveyed such an interest to Yeagley as to be subject to levy and sale under execution.
The arrangement was testamentary in character. In case of the death of Yeagley before that of Mrs. Salisbury, the property became hers. The consideration for the deed was the promise upon the part of Yeagley to care for, support, and maintain the grantor therein. It is undisputed that he never entered upon or performed this contract in. whole or in part, and therefore had no interest in the premises, either legal or equitable.
The trial court held there was no consideration for the deed, — that the consideration absolutely failed, and entered a decree removing the cloud from the title resulting from defendant’s levy. In this we think he was correct.
Decree affirmed, with costs to plaintiff.
Fead, C. J., and North, Fellows,. Wiest, 'Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
This action is brought to recover the damages sustained by plaintiff, due to a personal injury while in the employ of defendant. He had verdict for $7,000. The record discloses that a judgment was entered thereon on the following day. The court, however, afterwards, on defendant’s motion for judgment notwithstanding the verdict, set aside the verdict and the judgment and entered one fox; the defendant. Plaintiff seeks review by writ of error.
1. It is insisted that the motion for a directed] verdict had npt been reserved by the court and that the judgment first entered is a bar to the after proceeding. It appears in the record that at the conclusion of the proofs one of defendant’s counsel said to the court:
“We move the court to direct a verdict in favor of the defendant now at the close of plaintiff’s testimony, for the reason that the plaintiff in this case assumed the risk, he being in charge and having selected his own tools to do the work in question in this case.”
After argument the court said:
“In regard to the motion, the court is somewhat impressed with defendant’s contention, but the disposal of it will be deferred, and, if necessary, counsel may submit a brief, and the case will be submitted to the jury.”
While the court did not say, in the language of the statute (3 Comp. Laws 1915, § 14568), that he reserved decision upon the motion, he clearly gave counsel to understand that he did so. The judgment thereafter was inadvertently entered. It does not appear that plaintiff’s counsel objected to the consideration of the motion for this reason. The court had the power to set it aside as he did, and enter judgment on the motion. Kintz v. Galvin, 219 Mich. 48; Stanaback v. McFadden, 225 Mich. 452.
2. Negligence of Defendmt. Plaintiff entered the employ of the defendant at Bay City, a junction point on defendant’s road, on August 25, 1922. He was engaged in inspecting and repairing cars and “all kinds of different work around the yards,” He occasionally used jacks for raising ears while there. About a year later he was transferred to Owosso. He had no superior officer at that place. His duty was to inspect and make repairs on cars passing through that station or received by the defendant from the other railroads which cross defendant’s line at that point.. He was provided with a tool house in which to store the tools and appliances needed in his work. The key to the lock on this building was in his possession. His work was done under the supervision of the foreman at the Bay City yards, who was seldom, however, at Owosso. He would make .requisition for such tools as he needed in his work. He recalled sending two jacks to Bay City for repairs. He had three jacks in his tool house ' at the time of his injury.
On November 23, 1925, he received an order to go to Bennington to put a new brass into a car which had been placed on a side track. He put such tools and brasses as he thought he would need, including the jack in question, on a motor car provided for his use, and went there and was engaged in this work when he was injured. Plaintiff testified that he raised the car by placing a jack under the journal box on both sides of it, and put the new brass in and started to lower the jack; that it “slipped and broke and struck me on the hand and knee. It came out with a force around out this way, the entire jack and handle;” that he then discovered—
“there was an old crack, about two-thirds across. Eight from the top of the stem and cap, across on a slant. About two-thirds of the cap was broken off. It was an old break — the other third was just a kind of corner out all the way along, and broke right out, gave out with the other two-thirds, kind of ragged like. All the way I could determine that would be an old break, would be black and rusty, and a new break would be kind of a white or silver color. About two-thirds of it was an old break.
“ Q. Now, was that crack one that you could see without a minute inspection?
“A. Well, it might with a close inspection, but not the — I have never had any orders for inspection on that.”
The “jack” is thus described:
“The jack is about 14 inches in height, has a base of about 8 inches across the bottom, is about 3% or 4 inches across the top of the stem, and works on a screw arrangement on the inside of the jack at the base of the jack. This screw is worked by the ratchet being pumped up and down with a handle that is inserted into the socket of the jack.”
The nature of this tool and the manner in which it is operated is so well known, as it is part of the standard equipment of automobiles, that further explanation is unnecessary.
The negligence of which plaintiff complains is a lack of inspection of the broken jack on the part of the defendant.
It is elementary that the duty devolves upon the master, not only to furnish his servant with reasonably safe machinery and appliances with which to perform the work required of him, but he must also, by inspection from time to time, and by ordinary care and diligence in making repairs, keep them in a safe condition. Anderson v. Railroad Co., 107 Mich. 591. To this rule there is an exception in the case of simple tools.
“Where the tool is simple in construction, so that defects therein can be discovered without special skill or knowledge and without intricate inspection, the servant is as well qualified as anyone else to do teet defects and to judge of the probable danger of using such tool while defective; and, the tool being in the possession of the servant, his opportunity for inspection is better than that of the master.” 18 R. C. L. p. 563.
“And so, also, a master is under no obligation to his servants to inspect during their use those common tools and appliances with which everyone is familiar; nor is it the master’s duty to repair defects arising in the daily use of an appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen.” 39 C. J. p. 419.
In Wachsmuth v. Electric Crane Co., 118 Mich. 275, 279, it was said:
“We have decisions sustaining the doctrine that a master must provide safe appliances, and that he must use reasonable diligence in keeping them in repair. In heavy or complicated machinery, and where the person called upon to use the appliance may not possess the skill to detect unfitness, or the opportunities to do so, the law may require diligence upon the part of the master; but where the appliance is a common tool, of which the man who uses it is necessarily well qualified to judge, and who when he uses it has an opportunity to know its condition, a distinction may be made, and the master may rely upon the servant to inform him of the defect, or not use the tool, if it is unsafe.”
This holding wás cited with approval in Toth v. Osceola Mining Co., 180 Mich. 274, by the court of appeals in Northern Pacific R. Co. v. Altimus, 179 Fed. 275, and in Missouri Valley Bridge & Iron Co. v. Nunnemaker, 209 Fed. 32, and in Lynn v. Refining Co., 128 Iowa, 501 (104 N. W. 577). In the latter case, the court said:
“It is only machinery and appliances which are recognized as in their nature dangerous to em ployees using them, or working in proximity to them, as to which the employer owes a duty to the employee of looking out for his safety.”
The decisions of other courts have been collected in the notes to 13 L. R. A. (N. S.) 679; 40 L. R. A. (N. S.) 832; 51 L. R. A. (N. S.) 337; and L. E. A. 1918D, 1141. What is, or is not, a simple tool under the rule stated, and the duty to inspect if it is not, depends much upon the use to which it is to be put by the employee. His age, his incapacity to appreciate danger, the nature of the employment, his familiarity with the work to be done, these and many other things may be considered in determining the obligation resting on the employer to make inspection. His nonliability in such cases rests upon the assumption that the employee is in as good, if not better, position' to observe the defect as the employer. Meyer v. Ladewig, 130 Wis. 566 (110 N. W. 419, 13 L. R. A. [N. S.] 684). The test depends, not only on the simplicity of construction, but also somewhat on whether the tool is subjected to any other stress than the muscular effort of the person using it.
The record does not disclose the length of time this jack had been in the tool hóüse at Owosso at the time of plaintiff’s injury. . He had been there employed for more than two years. No inference can fairly be drawn that it was defective at the time it was sent there for use, whether before or after plaintiff went there. To hold that defendant failed in its duty to inspect this jack, we must say that it was required to keep an inspector ’ at Owosso for that purpose. There were three jacks in the tool house. Plaintiff had frequent occasion to use them. A slight examination of the top of the cap would have disclosed the crack therein. It also appears from the testimony of one of plaintiff’s witnesses that a tap on the cap of the jack would have disclosed its defective condition from the sound thereof, and that this was the usual method of testing castings for defects.
In our opinion no actionable negligence on the part of the defendant was established.
The judgment entered on the motion'therefor is affirmed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
Wiest, J.
September 2,1927, Frank O. Beaty was in the employ of defendant Foundation Company as a caisson worker, engaged in preparing footings for the Union Trust building in the city of Detroit. At the close of his work, at 4 o ’clock in the morning of that day, he went home, there vomited, lost his vision and the use of his legs, and died at 1:30 o’clock in the afternoon. The cause of his death was the caisson disease called “bends,” occasioned, usually, by too rapid decompression of air as the worker comes out of the caisson. The air in the caisson is compressed to the point where it will resist entry of water or oozing earth and sand, and a workman cannot enter the caisson except through a lock box or compartment in which air is gradually compressed to equal that in the caisson. When the workman comes from the caisson he enters the lock box or compartment, and there the air is gradually decompressed until it is safe for him to encounter ordinary atmospheric conditions. Too rapid decompression causes sickness and frequently death. The department found that the packing about the cable passing into the lock box leaked air and accelerated decompression to the point of causing the disease and the employee’s death. Defendants contend that there was no accident and no evidence supporting the finding of the department.
As we understand it, a hoisting rope runs through the lock box and is used to lower and raise workmen in the caisson and take out earth; that compression in the caisson keeps the trap or door in the floor of the lock box shut until compression in the lock box equals that in the caisson and then the trap door may be opened. When the workmen ascend they are hoisted to the lock box, the trap door is closed, and the air in the lock box gradually decompressed to a point rendering it safe for workmen to leave the box. Where the hoisting rope passed through the lock box there was packing, and it is claimed that the packing had become worn and let the air escape from the lock box and this caused too rapid decompression. If such was the case, and that caused the death of Mr. Beaty, then compensation was properly awarded. Upon this question we do not weigh the evidence, but only ascertain whether there was any evidence supporting the finding.
The death of Mr. Beaty was caused by caisson disease, but that fact alone does not fix liability, for such disease may, under some circumstances, be no more than an occupational resultant, and it must be more than that in order to authorize compensation; it must have been occasioned by an accident, that is, by a fortuitous circumstance, preventable and not prevented. Caisson sickness may, under some circumstances, be classed as an occupational disease, and under other circumstances be classed as an accident. Caisson workers do sometimes have the sickness under ordinary conditions and modern protective methods, and when it so happens it is occupational. But when it is caused by a fixed and single fortuitous and preventable circumstance it is not an occupational disease but an accident within the meaning of the workmen’s compensation law.
The principal hazard to caisson workers is in fitting their bodies to meet natural atmospheric conditions, and this is accomplished by gradual decompression of high air pressure in which they have had to work. If the workmen encounter natural atmospheric pressure while they carry appreciable compressed air conditions, they vomit, suffer pain 'in the joints, back, and stomach, have headache, nausea, sometimes paralysis of the legs, and blindness, and die.
Air compression in the caisson is measured in pounds. Informed of the pressure in the caisson, the board held that release from the pressure should not have been more rapid than at the rate of three pounds in two minutes, and, in this instance, the pressure was released in less than one-half the proper time. This finding was supported by evidence. That a fellow workman suffered no sickness was merely a fact for consideration by the board, and the same may be said of previous caisson sickness experienced by Mr. Beaty.
There was testimony by a workman, who was in the lock box, that Mr. Beaty had oakum with him for the purpose of stuffing the rope bearing to prevent too rapid escape of the compressed air, and that Mr. Beaty used the escape valve in releasing the air. There was also testimony that, while Mr. Beaty was in the lock box, the compressed air escaped about the rope to the extent of forcing shreds of oakum out of the stuffing box.
Whether decompression was in part by use of the valve is of no decisive moment. If the decompression was dangerously rapid by valve use, or leakage, or both, or by valve use alone, and that particular instance caused the caisson disease, then there was a compensable accident, unless Mr. Beaty was guilty of intentional and wilful misconduct. There was no evidence of intentional and wilful misconduct.
The evidence supports the finding of the hoard that worn packing about the rope let the air escape too rapidly from the lock box and the sudden decompression occasioned thereby caused Mr. Beaty to have an acute attack of caisson sickness from which he died.
The award is affirmed, with costs.
Fead,' C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Plaintiff, administratrix of the estate of her deceased husband, sued defendant for negligently injuring her husband, causing his death. It is plaintiff’s claim that her husband, an employee' of the post office department, was injured by an explosion of gas negligently allowed to escape and collect under the loading dock at the post office in Grand Rapids, Michigan, which injuries caused his death, There is a direct conflict in the testimony as to the cause of the explosion. Most of the questions involved were for the jury. If the facts were properly presented and submitted to the jury under a legal charge, its verdict is conclusive. The question to consider is whether there was legal error in the trial and submission of the case.
The plaintiff counted, in her declaration, upon the defendant’s negligence in installing a defective gas main and in negligently failing to inspect the main after installation to determine whether or not it leaked. Much testimony was introduced tending to show gas had been escaping from the main for a considerable period of time; that the defendant, in the exercise of reasonable care and diligence, ought to have discovered such escaping gas and stopped the leak. There is no dispute as to the duty of inspection arising from the use of the streets for the laying of mains for the distribution of useful, though dangerous,' gas. That ordinary gas is explosive is well known. The general rules covering the duties of a gas company in relation to its mains are stated in 28 C. J. p. 590; 1 Thornton on Gas and Oil (4th Ed.), p. 1415.
The trial court recognized this issue tendered by plaintiff’s declaration, supported by the evidence, and sustained by law. He charged the jury:
“It is further claimed on the part of the plaintiff that it became and was the further duty of the gas company to use due care and caution and diligence after turning on the gas in its mains to detect any leaks in its pipes from which large quantities of gas might be escaping, and to properly repair the pipes and prevent the leak and the escaping of the gas therefrom.
“It is further alleged and claimed by the plaintiff that the defendant company, notwithstanding these various duties, did not carefully perform them, but carelessly and negligently furnished pipes unsuitable for the purpose for which they were intended, not of a quality to prevent the escape of gas therefrom, and that it failed to inspect the pipes as they were put into the trench, in order to discover obvious defects therein; that it failed to use reasonable care and- caution in the selection and laying of pipes in this main, and by reason of such neglect and failure permitted a defective pipe to be laid therein from which gas could and did escape to the adjoining premises; and that it failed to properly inspect the pipes laid in this main after the gas had been turned on in order to discover any leaks in the main and that, as a result of this neglect of duty, gas did escape from this main through the adjoining soil, gathered under this loading dock, became exploded, causing the injuries complained of in this case.”
By this part of his charge, the court correctly covered this phase of the case.
The court also charged the jury, at the request of the defendant:
“The jury is instructed that the plaintiff, in order to recover, must prove by a preponderance of the evidence the several elements material to a determination of this case; first, that gas accumulated under the loading dock; second, that such gas came from the Division street main; third, that it exploded; fourth, that the gas escaped from the Division street main because of a defective pipe; fifth, that such defective pipe had been installed through the negligence of the defendant in failing to use ordinary and reasonable care in inspecting and testing the pipe before placing it in the ground. I think that is a very good statement of the several elements of this case which you are to determine in order to reach your conclusion. If the plaintiff fails to prove or establish any one of the above matters by a pre ponderance of the evidence, your verdict will be for the defendant.”
An examination of this summary demonstrates that it entirely ignores plaintiff’s claim of defendant’s negligent failure to inspect, set forth at length in plaintiff’s declaration and sustained by evidence tending to support it. This charge, under the facts, eliminated from the consideration of the jury an important element of plaintiff’s case. It is in direct conflict with that part of the charge which the court had already given. The rule is thus stated in 14 E. O. L. pp. 777, 778, as follows:
“Where instructions give to the jury contradictory and conflicting rules for their guidance, which are unexplained, and following either of which would or might lead t'o different results, then ,the instructions are inherently defective and erroneous. And this is true though one of the instructions correctly states the law as applicable to the facts of the case. The reason for this is that where the instructions on a material point are contradictory, it is impossible for the jury to decide which should prevail, and it is equally impossible, after the verdict, to know that the jury was not influenced by that instruction which was erroneous, as the one or the other must necessarily be, where the two are repugnant. A further reason is that conflicting and contradictory instructions in effect leave the jury without instructions to guide them with reference to the law arising upon the evidence in the cause.”
This is the rule in Michigan. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152; Hyde v. Shank, 77 Mich. 517; Madill v. Currie, 168 Mich. 546; Lamb v. Township of Clam Lake, 175 Mich. 77; Silverstone v. Assurance Corp., 176 Mich. 525; In re Bailey’s Estate, 186 Mich. 677; Rathbone v. Railway, 187 Mich. 586; In re Foerster’s Estate, 193 Mich. 440; Barrett v. Insurance Co., 195 Mich. 209; Steele v. Banninga, 225 Mich. 547. This was error.
The defendant contended upon the trial that plaintiff was not the real party in interest, hut that the government of the United States was the real party’ in interest. The trial court correctly ruled otherwise. Cox v. Railway, 238 Mich. 527. The defendant requested the court to charge the jury:
“29h. As bearing upon the interest of the employees of the government of the United States in this case, you have a right to consider that by the statute of the United States under which the plaintiff and her children are receiving compensation, she and they are required to repay the government from any recovery in this case going to her or her children, all sums heretofore paid to her or to them as compensation, and to credit the remainder upon future compensation to be paid, thus relieving the government therefrom to the extent of such recovery; and that the' United States employees’ compensation commission, through its attorney; solicited and procured plaintiff to commence this suit and that under the compensation statute she was compelled to accede to this request or forfeit further compensation.
“29i. You are entitled to consider, as bearing on the actual interest of plaintiff in this case, that by the statute of the United States under which the plaintiff and her children are receiving compensation, she and they are required to repay the government from any recovery in this case going to her or her children, all sums heretofore paid to her or them as compensation, and to credit the remainder upon future compensation to be paid, thus relieving the government therefrom to the extent of such recov ery; and that the United States employees’ compensation commission, through its attorney, solicited and procured plaintiff to commence this suit and that under the compensation statute she was compelled to accede to this request or forfeit further compensation.”
The court, upon this phase of the case, charged the jury as follows:
“As bearing upon the question of the interest of these witnesses in the result of this case, you may consider the fact that the deceased was an employee of the government, and that as such employee bears a certain relationship under the law to the government with reference to compensation. That hasn’t anything to do, as I have repeatedly said during the progress of this trial, with the right of the plaintiff to recover, if she is entitled to recover, full compensation for the injuries as administratrix of her deceased husband’s estate. This question will only bear upon the subject of the interest-of the witnesses and not upon the right of the plaintiff to recover, if you find she is entitled to recover. ’ ’
In Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 51, 53 (40 Am. Rep. 453), it is said:
“The court also told the jury that if they found it necessary to consider the testimony given by the agents and employees of the railroad, they should bear in mind the interest they have in protecting their company and shielding themselves from blame. In doing this a very similar statement was made concerning the testimony of the packers in New York.
“While there may appear on the trial on direct or cross-examination such bias or behaviour as would authorize comment by counsel to the jury, we think it is not within the province of a court to instruct a jury, or suggest to them, that any suspicion attaches to the testimony of agents or servants of a corporation or individual by reason of their employment, or that they have any such interest as requires them to be dealt with differently from other witnesses. Even interested witnesses are now let in by statute? and the policy pointed out by the statute indicates that the old presumption that interest will necessarily or probably lead to falsehood, was unjust and untrue. ’ ’
The charge of the court was error.
Suppose most of the witnesses for defendant were users of gas furnished by the defendant gas company. As a matter of fact, no doubt they were such users. Would it be competent for the plaintiff to show that such witnesses had contractual relations with the defendant gas company; that in case a judgment for plaintiff against the defendant was rendered, this judgment, if paid, would ultimately be reflected in the rates charged and collected from the customers of the gas company, and that therefore the witnesses for the defendant were likely to be biased, prejudiced, and interested in favor of the defendant, and should the time of the court, jury, and witnesses be taken up with the trial of this collateral matter? Yet the interest of such witnesses on behalf of the defendant is much more direct than that of employees of the United States government in the cause of action of the plaintiff in this case.
The plaintiff alleges error upon the conduct of the counsel for defendant. In view of the law having been clarified since the trial of this case, we think the error complained of is not likely to again arise. There is no question about the general rule. Phillips v. Benevolent Society, 120 Mich. 142; Kerr v. Manufacturing Co., 155 Mich. 191; Thomas v. Township of Byron, 168 Mich. 593 (38 L. R. A. [N. S.] 1186, Ann. Cas. 1913C, 686); Grubaugh v. Simon J. Murphy Co., 209 Mich. 551.
As said in the latter case:
“If counsel, well learned in the law, choose to deliberately imperil the interests of their clients by improper advertisement of a fact well known to be prejudicial to a fair and impartial consideration of tbe case by the jury, tbe resulting judgment should be set aside, even though the party who suffers is the innocent client instead of offending counsel.”
Judgment reversed, and a new trial ordered.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Fead, C. J.
Between 2 and 3 o’clock a. m., October 13, 1924, a Maxwell touring car, driven by Fay White, and in which' plaintiff was riding, crashed into a trailer attached to a Federal truck owned by defendants Vroom, and plaintiff was severely injured. She had verdict against both defendants in action for damages. Judgment for defendants notwithstanding verdict was entered by the court on reserved motion, on the ground of White’s contributory negligence, imputable to plaintiff. Plaintiff has brought error and the testimony most favorable to her must be accepted.
White, plaintiff, two other men, two other women, and three children drove from Jackson to Detroit Sunday evening, October 12th, arriving about 10 o’clock p. m. They started on the return trip after 11 o ’clock, the two men riding in the front seat with White and the three women in the back seat, holding the children on their laps. They went through Ann Arbor about 2 o’clock and the accident occurred some 8 miles west.
The Federal truck, with two trailers, facing west, was standing on the pavement on the right side. The truck was under a tree. The east trailer had no rear lights and was slanted somewhat so its east end touched or crossed the center line of the highway. The lights on the truck and other trailer could not be seen from the east.
It was a clear night, quite light. White approached from the east at a speed of 30 miles per hour. When 400 or 500 feet east of the truck, he came to the crest of a grade sloping slightly down toward the west. He then saw the headlights of a. Reo speedwagon, owned by defendant Hall, either standing or coming from the west. White dimmed his lights, reduced his speed to 15 or 20 miles per hour and continued at that' rate until he put on his emergency brake to avoid a collision. At that speed, he could have stopped his car in 15 feet. He could see about 50 feet ahead of the car with his lights dimmed. The Reo lights bothered him some but not enough that he could not have stopped within the range of his vision. He drove to a point distant from the truck, according, to various estimates of White, 15, 30, 40, 50, or 66 feet. At that point the Reo lights, which had a defective lens, blinded him, causing what he termed a “black spot,” in which he could not see ahead. He ran some 10 feet in the black spot. At some time therein, when he realized he could not see, he applied the emergency brake, ran out of the black spot and saw the trailer 12 feet away. At that time the Reo speedwagon had just passed the trailer by three or four feet, and White steered his car to the left for the opening. His car skidded about 12 feet. He struck the rear left side of the trailer.
It is settled in this State that it is negligence as a matter of law to drive an automobile at night at such speed that it cannot be stopped within the distance that objects can be seen ahead of it; and, if a driver’s vision is obscured by the lights of an approaching car, it is his duty to slacken speed and have his car under such control' that he can stop immediately if necessary. Budnick v. Peterson, 215 Mich. 678; Spencer v. Taylor, 219 Mich. 110; Gleason v. Lowe, 232 Mich. 300; Holsaple v. Sup’ts of Poor of Menominee Co., 232 Mich. 603; Lett v. Summerfield & Hecht, 239 Mich. 699.
Plaintiff contends that White, in being blinded by the Reo lights, was confronted by an unusual condition, an element of surprise, something which he had never met before in his 10 years’ experience in driving; that an emergency was thus created, White acted promptly and with due diligence in endeavoring to stop the.car as soon as he realized he could not see ahead, and his negligence was a question for the jury under Diederichs v. Duke, 234 Mich. 136. The latter case is plainly distinguishable. There the plaintiff made timely discovery of the danger, applied the brakes in time to stop and would have stopped in time had not the car slipped on an undiscernible strip of icy pavement.
The rule adopted by this court does not raise merely a rebuttable presumption of negligence. It is a rule of safety. Lett v. Summerfield & Hecht, supra. It is not enough that a driver be able to begin to stop within the range of his vision, or that he use diligence to stop after discerning an object. The rule makes no allowance for delay in action. He must, on peril of legal negligence, so drive that he can and will discover an object, perform the manual acts necessary to stop, and bring the car to a complete halt within such range. If blinded by the lights of another car so he cannot see the required distance ahead, he must, within such distance from the point of blinding, bring the car to such control that he can stop immediately, and, if he cannot then see, shall stop.
Emergencies not to be fairly anticipated may vary the application of the rule. But no such emergency was present at bar. The truck and trailer had been stationary several minutes and "White had seen the undimmed lights of the Reo car several hundred feet away. It is a matter of common knowledge that many headlights 'are blinding to on-coming drivers, especially and increasingly as the cars near each other. Accidents due to their glare are frequent. A prudent person would reasonably have anticipated that the lights might interfere with his view ahead. When cars meet at night each driver must anticipate the possibility of interference with his vision by the headlights of the approaching car,- and, if he cannot see the road beyond such car, must have his own automobile under control which will enable him to stop immediately, or within such distance as he can at all times see ahead. White did not stop within such range.
Moreover, whichever of White’s variable estimates of distance is accepted, his negligence appears. Able to see 50 feet ahead and the Reo lights not appreciably interfering with his vision, if he ran into the black spot within that distance of the trailer, he should have seen it before entering such black spot. If he was so far away that he could not see the trailer when he entered the black, spot, he had ample space within which to stop after he knew he could not see ahead.
Judgment is affirmed.
Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. North, J., did not sit. | [
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Sharpe, J.
Defendant reviews his conviction and sentence to life .imprisonment on his plea of guilty by writ of error allowed by this court on his personal petition therefor. All irregularities in the issuance thereof have been waived by the attorney general.
The sentence was imposed under the mandatory provision of section 12 of chapter 9 of Act No. 175 of the Public Acts of 1927 (the code of criminal procedure), which reads as follows:
“A person who after having been three times convicted within this State, of felonies or attempts to commit felonies, or under the law of any other State, government or country, of crimes which if committed within this State would be felonious, commits a felony within this State, must be sentenced upon conviction of such fourth or subsequent offense, to imprisonment in a State prison for the term of his natural life. Offenders sentenced under this and the last two preceding sections shall not be eligible to parole before the expiration of the minimum term fixed by the sentencing judge at the time of sentence without the written approval of the judge of such court or any judge of such court if the sentencing judge is not then serving. A person to be punishable under this and the last two preceding sections need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section.”
Section 13 provides:
“If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the three foregoing sections, it shall be the duty of the prosecuting attorney of the county in which such conviction was had to file an information in such cause accusing the said person of such previous convictions. Whereupon the court in which such conviction was had shall cause the said person whether confined in prison or otherwise, to be brought before it and shall inform him < of the allegations contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person, or remáins silent, the court shall'enter a plea of not guilty, and a jury of twelve jurors shall be empaneled from the petit jurors serving at the then or a following term of said court to determine the issues raised by such information and plea. The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal cases shall be followed in the empaneling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed five peremptory challenges. If the accused shall plead guilty to such information or if the jury shall return a verdict of guilty, the court shall sentence him'to the punishment prescribed in the three preceding sections, as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated if required. Whenever it shall become known to any warden, or prison, probation, parole, or other peace officer that any person charged with or convicted of a felony has been previously convicted within the meaning of the three preceding sections, it shall become his duty forthwith to report the facts to the prosecuting attorney of the county in which such person is charged or was sentenced.”
The information to which defendant pleaded guilty, and on which the sentence of life imprisonment was imposed, charged that before the filing thereof- the defendant had been once convicted of burglary and four times of violation of the law prohibiting the manufacture or sale, etc., of intoxieat ing- liquors in the circuit court for the county of Ingham, in which such information was filed'. It also charged that on February 2, 1920, defendant was convicted in the United States district court for the eastern district of Michigan of defacing the lawful currency of the United States.
The journal of the court, attested by the signature of the trial judge, reads as follows:
“The prosecuting attorney of the county of Ingham, having filed his information against the said respondent, alleging and charging that the said respondent has heretofore been convicted of six felonies and the said respondent having been duly arraigned on said information and having pleaded guilty thereto; and on examination by the court it appearing that said plea of guilty was voluntarily and understandingly tendered, and said plea of guilty having been accepted by the court; and having been, on motion of the prosecuting attorney, brought to the bar of the court for sentence, and having there been asked by the court if he had anything to say why judgment should not be pronounced against him, and alleging no reason to the contrary; therefore, it is considered by the court now here, that the said Fred Palm be confined in the State prison at Jackson at hard labor for life from and including this day. ’ ’
The manner in which the criminal code was prepared, and the purpose of its enactment, was referred to in People v. Lintz, 244 Mich. 603. The provision for increased sentence when the defendant had been theretofore convicted is not new in this State. Sections 5948 and 5949, 2 Comp. Laws 1857, contained provision therefor, and have been continued in force without change. They appear as sections 15612 and 15613, 3 Comp. Laws 1915. This court has sustained sentences imposed thereunder. People v. Campbell, 173 Mich. 381. The mandatory provision in the present law is its chief additional feature.
Such laws evidence a desire on the part of the people of the State to protect themselves from the acts of habitual violators of law. Such persons, by the repeated commissions of felonies, have shown that they are a menace to society, unfit for liberty, and should be deprived thereof. The punishment in such cases is increased because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws deemed necessary for the protection of the people and their property. Experience teaches that the fear of severe punishment is more likely to rid the State of this type of professional criminals than any effort which may be- made looking to their reformation.
The reasoning on which such laws are sustained is very aptly stated in 8 R. C. L. p. 271, as follows:
“An habitual criminal statute is a thing of modern creation, and while there are many rules of law which may seem inconsistent with its purpose and the procedure adopted to compass it, it is nevertheless sound in principle and sustained by reason. Aside from the offender and his victim there is always another party concerned in every crime committed — the State; and it does no violence to any constitutional guaranty for the State to rid itself of depravity .when its efforts to reform have failed. The true ground upon which these statutes are sustained is, that the punishment is awarded for the second offense only, and that in determining the amount or nature of the penalty to be inflicted, the legislature may require the courts to take into consideration the persistence of the defendant in his criminal course.”
The errors relied on by and on behalf of the defendant will now be considered. ,
■ 1. Title to the Act. Counsel contend that the “purpose of the legislature to define and prescribe punishment” for habitual offenders “is not expressed in the title of said Act.” The act is so easily accessible that we refrain from quoting the title in full. It is therein said to be—
“An act to revise, consolidate and codify the laws relating to criminal procedure; * * * to provide for trials of persons complained of or indicted •for criminal offenses and to provide for the procedure therein; to provide for judgments and sentences of persons convicted of criminal offenses.” * * *
In Attorney General v. Hillyer, 221 Mich. 537, 539, in which the 1917 election law was attacked for the same reason, it was said:
“It would not be possible to embrace in the title the various objects intended to be accomplished in the 25 chapters of the act in question. It is sufficient, as this court said in Loomis v. Rogers, 197 Mich. 265: ‘If provisions in the body of the act not directly mentioned in the title are germane, auxiliary or incidental to that general purpose.’ ”
See, also, Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8; Loomis v. Rogers, 197 Mich. 265; People v. Gogak, 205 Mich. 260; People v. Wohlford, 226 Mich. 166. We find no merit in this contention.
2. Ex Post Facto Legislation. It is next insisted that the act violates the constitutional provision (U. S. Const., Art. 1, § 10) forbidding the enactment of ex post facto legislation. In 1 Cooley on Constitutional Limitations (8th Ed.), p. 553, it is said:
“And the law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into the account, and the punish ment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for the first; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such case, it is the second or subsequent offense that is punished, not the first.”
The rulq thus stated is in harmony with the decisions of this and other courts. In re Miller, 110 Mich. 676 (34 L. R. A. 398, 64 Am. St. Rep. 376); McDonald v. Massachusetts, 180 U. S. 311 (21 Sup. Ct. 389); Graham v. West Virginia, 224 U. S. 616 (32 Sup. Ct. 583); Commonwealth v. Graves, 155 Mass. 163 (29 N. E. 579, 16 L. R. A. 256); Blackburn v. State, 50 Ohio St. 428 (36 N. E. 18); People v. Gowasky, 244 N. Y. 451 (155 N. E. 737); Davis v. Berry, 216 Fed. 413. In the case last cited it was aptly said:
“He is not being subjected to the operation for that which was by him done prior to the enactment of the statute, but because he voluntarily brings himself within a class covered by the statute, and he does this subsequent to the enactment of the statute. ’ ’
3. Discretion of Court. It is urged that the mandatory provision deprives the trial court of exercising a discretion in the imposition of sentence. Under our system of State government, the legislature makes the law, the governor executes it, and the courts construe and enforce it. In People v. Smith, 94 Mich. 644, 646, this court said:
“Upon the legislature alone is conferred the power to fix the minimum and maximum of the punishment for all crimes.”
The courts have no discretionary power in this respect unless it be conferred upon them by law. Under its mandate, murder in the first degree is punished by life imprisonment. Courts have no inherent power to modify a statute in this respect to meet exceptional cases.
4. Procedure, (a) Defendant urges that the court had no jurisdiction to pronounce sentence because section 15767, 3 Comp. Laws 1915, had not been complied with. It reads, in part, as follows:
“No information shall be filed against any person for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination.” * * *
The right of a person accused of crime to such an examination has been sedulously guarded by this and other courts. It is, however, in no way involved in the proceedings here had. In the information filed, in which the several former convictions were averred, and to which defendant pleaded guilty, he was not charged with having committed any crime. In it the court was informed of defendant’s prior convictions. By his plea of guilty thereto he admitted the truth of the charges made therein. The mandatory sentence was imposed pursuant to the provision therefor, because of such plea. The inquiry presented was not whether the defendant had committed a particular offense. The fact of previous convictions alone is before the court, and the sentence which may be imposed is dependent upon the proof of such fact. It may be established by competent evidence or by the defendant’s admission of the truth thereof in his plea of guilty. The affirmative determination reached by the court on such plea, or by the jury if one is impaneled, is the basis on which the additional punishment is imposed. This question has been squarely passed upon and decided adversely to the claim of the defendant in Graham v. West Virginia, supra; People v. Gowasky, supra, and State v. Zywicki (Minn.), 221 N. W. 900.
(b) It is insisted that defendant was not at any time informed that the proceeding in court was being conducted under the provision in the criminal code under which, if he pleaded guilty, a life sentence was mandatory. The journal from which we have' already quoted, states “that said plea of guilty was voluntarily and understanding^ tendered, ’ ’ and was “accepted by the court.” The statute (§13) requires the trial court, when a person so charged is • brought before him, to—
“inform him of the allegations contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not.”
It then provides for a trial by a jury, unless waived, if the accused “says he is not the same person, or remains silent,” and if “the accused shall plead guilty to such information or if the jury shall return a verdict of guilty” he shall sentence him to the punishment prescribed.
We cannot on this record say that this statute was not complied with. The record of sentence states that the plea of guilty was made “voluntarily and understandingly. ” What particularly occurred would doubtless appear in the minutes of the stenographer, and need not necessarily be included- in the record of sentence.
5. Charge of Felonies. The claim is made that, the conviction in the Federal court alleged in the information was not one of a felony under onr State law, and also that defendant’s first conviction was for a violation of the local option law then in force in Ingham county, ancTthat such violation was not a felony. As four other felonies were alleged, these claims need not be considered.
No reversible error appearing, the judgment is affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Potter, J., did not sit. | [
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] |
Potter, J.
Plaintiff, one of seven living children, by the first husband, of Clara Schrieker, deceased, December 18, 1926, filed the bill of complaint herein against John Schrieker to set aside certain conveyances by which at her death he- became the record title holder of the real estate possessed by Clara Schrieker in her lifetime, and to restrain the Peninsular State Bank from disposing of the money which had been hers, and to secure it to her estate. On the hearing’ the Union Trust Company, administrator of Clara Schrieker’s estate, was made party plaintiff. There was decree for plaintiff and defendant appeals. The bill of complaint alleges that Mrs. Schrieker was not mentally competent to transact business, and that her husband, John Schrieker, the defendant, by undue influence, contrived and succeeded in having her transfer the real estate and change her bank account for the purpose of defrauding plaintiff and his brothers and sisters.
At the time of the transactions in dispute, deceased was 61 years of age. She had been married when a young woman and borne several children, seven of whom survived her. Defendant John Schrieker had been an improvident blacksmith, who, up to his marriage to Mrs. Schrieker in 1912, had accumulated no money or property. Mrs. Schrieker had considerable property at the time of her second marriage, which she had-obtained on her first husband’s death. Defendant was a drinking man, maintained a still in the cellar, engaged in the manufacture of whisky, and kept a considerable supply on hand. Both defendant Schrieker and his wife were frequently intoxicated. Up to the fall of 1926 Mrs. Schrieker had been on good terms with her children. She had frequently stated her husband had brought her no property and would not, at her death, share ip her estate. During the summer and fall of 1926 she was sick; was admitted to the Ford hospital in September, 1926, and assigned to the neuro-psychiatric division, coming under the supervision of Dr. Heldt, a graduate of Johns Hopkins Medical College, with wide experience in mental diseases and lecturer thereon at the University of Missouri. She was, when brought to the hospital, suffering from arteriosclerosis, cirrhosis of the liver, due to chronic alcoholism; was mentally disturbed; suffered from delusions of persecution; thought someone was attempting to poison her; did not know where she was; did not always recognize her physician; berated the nurses and doctors; declared ' she had been drinking poison intended for her hus.band; said she saw strange bugs where there were none on her clothing; attempted to pick them off her stockings; and claimed there were millions of gold fishes in the yard where there were none. The Wasserman test revealed no evidence of syphilis, but disclosed changes in the brain tissue. Dr. Heldt said she was insane at the time, and, by reason of her being insane, recommended that she be committed to an insane asylum for further treatment; there being- no prospect of her getting better; the disease being progressive in its nature. She did not get better. Her htisband frequently complained of her treatment of him during* the summer and fall of 1926, said she was crazy and should be sent to an insane asylum, that the devil himself could not live , with her. She locked herself in the house, locked him out of the house, refused to get his meals, and refused to give him money. While she was in the Ford hospital, and on October 19, 1926, defendant Schricker filed a petition in the • probate court of Wayne county alleging she was insane and asking that she be admitted to the insane asylum at Pontiac, or Eloise, or some other suitable place. Her children did not want her taken to an insane asylum. They thought she should be taken care of in her own home, and the petition was dismissed and the old lady taken back home. She was admitted to Providence hospital, and left there November 9, 1926.
During all this period she was feeble, continued to suffer from delusions, complained of being bewitched, had fatty degeneration of the heart, jaundice, and dropsy, and was tapped at least three times to remove the liquid accumulating in the abdomen. She picked up pins, salt, towels, pieces of bread and other things, and, when he was present, put them in her husband’s pocket. She failed to recognize old acquaintances, continued to complain of being poisoned, of suffering for others, held imaginary conversations; talked to herself, and appeared silly. She was rambling and incoherent, appeared mentally irresponsible, did not know what she was doing, was confined to her bed, and stimulated with morphine. She was mentally very low, and gradually sank in bodily and mental strength until December 11, 1926, when she died.
After she came from the Ford hospital, and before the transaction complained of, defendant John Schricker told many persons his wife had made a will giving the property to the children, and that he would get none of her property. The deeds are dated October 30, 1926. They purport to have been acknowledged on that date. They were signed and acknowledged 10 or 15 days later. Defendant Schricker desired to get the property. He approached a Mr. Perry, an attorney-at-law, and asked him to participate in fraudulently procuring a deed' to himself of his wife’s property. After the defendant Schricker procured the deed and transfer of the money, he continued to indulge his appetite for intoxicating liquors; told the children he had fooled Ms wife and obtained a deed of tbe property when she thought she was making a will; said she would kill him if she knew what he had done; promised one of the heirs to give her the house if she would stand by him and help him get the property.
The admissions of the defendant John Schricker, voluntarily made, against his interest, none of which were demed by him, are admissible against Mm as primary evidence. They are presumed to be true until the contrary is shown. Merrill v. Leisenring, 166 Mich. 219. In this case he is the sole beneficiary of the transactions attacked. The rule is well settled that the admissions of a sole devisee, legatee, or other beneficiary of a transaction are admissible against him, but where there is more than one devisee, legatee, or beneficiary, the admissions of one of them are not admissible, on the ground that another should not be prejudiced by such statements. In re Lambie’s Estate, 97 Mich. 49; O’Connor v. Madison, 98 Mich. 183; In re Lefevre’s Estate, 102 Mich. 168; Roberts v. Bidwell, 136 Mich. 191; Bean v. Bean, 144 Mich. 599; In re Hewitt’s Estate, 161 Mich. 536 (21 Ann. Cas. 47); In re McMaster’s Estate, 163 Mich. 210; In re Ganun’s Estate, 174 Mich. 286. The trial court who saw the witnesses had no hesitation in setting aside the transactions involved.
We think the learned circuit judge arrived at the correct conclusion, and the decree- of the trial court is affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
The defendant was arrested about midnight on May 28, 1927, while driving a Reo speedwagon loaded with intoxicating liquor through the city of South Haven, Michigan. After the arrest, which was made without a warrant, the truck was searched and found to contain 100 cases of Canadian ale and 100 cases of beer. He was put on trial under an information charging him with the possession and transportation of intoxicating liquor. A motion was made to suppress the evidence on the ground that it was obtained by an unlawful arrest and search. The motion was denied. The trial resulted in a judgment of conviction, which the defendant here reviews on a writ of error.
The record presents the single question as to the validity of the arrest. A-few hours before the arrest, the chief of police of the city of South Haven received information that a man driving a Reo speed-wagon with an inclosed body, on the side of which was painted the words “Universal Film Exchange,” and which carried an Ohio license number 18223, would arrive in South Haven about midnight loaded with liquor. This information was received by the chief in a conversation with two men who were unknown to him and who did not give their names. Taking another officer with him, the chief watched until about midnight, when he saw the defendant drive into the city with a truck such as the men had described. After following him for a short time, the officers stopped the defendant and questioned Mm. The chief of police testified to the conversation as follows:
“I asked him where he was going, and he said, ‘St. Joe and Benton Harbor.’ I asked him what he was hauling and he said, ‘Films for theatres.’ I asked him where he got the films, and he said he was bringing them from Grand Rapids, and I asked then where his next delivery was to be made; he said, ‘In the theatres of St. Joe and Benton Harbor,’ and I asked him to tell me the name of the theatre he was supposed to deliver those films to; he was unable to do that. He said he didn’t remember the names but he would know the places when he saw them. I asked if his employers didn’t give him a list of the films and names of places where they were to go, and if he had it, I would like to see it. He said that he had no such list. Just had to remember the places where he was supposed to take those films. I then told him I was suspicious of his load; that it was a mighty heavy load for films. I then told him that after placing him under arrest that I would' look at his load. I asked him how he opened up the truck; he said, ‘By opening the door in the rear.’ He jumped out and came around to assist me in opening the door. In opening the door, I saw the truck was loaded nearly to the top with sacks and cases.”
The question is whether the information he received, together with his observation of the truck and the conduct of the defendant as disclosed by his conversation, was sufficient to raise a reasonable belief in the mind of the officer that intoxicating liquor was being unlawfully possessed and transported in his presence.
Instances quite similar to this have been before this court frequently. The rule which we have followed was well stated by Mr. Justice Sharpe in People v. Kamhout, 227 Mich. 172, as follows:
“What we do state to be the rule by which this court will be governed is, that if an officer, charged with the enforcement of the law, from the exercise of his own senses, or acting upon information received from sources apparently so reliable that a prudent and careful person, having due regard for the rights of others, would act thereon, has reasonable and probable cause to believe that intoxicating liquor is being unlawfully transported in an automo-' bile in his presence, he may arrest the offender or search for and, if found, seize the contraband therein.”
In the instant case the information which the officer received did not come to him indirectly. The men came to him. He saw them, talked to them, and had opportunity to judge of their dependability. But there were other facts and circumstances that confirmed the officer’s belief that the information which he had received was reasonably trustworthy. He followed the truck, saw that it was “riding heavy,” as he termed it, heavier than it would have ridden had it been loaded with films; and he talked with the defendant, who failed to give a reasonable account of his movements. These facts, together with the information received from the two men, were sufficient to create an honest belief in the mind of the officer that the defendant was violating the law. As the arrest was legal, the officer had a right to search for and seize the liquor found in defendant’s possession.
Counsel for the defendant complains that in the sentence imposed the court arbitrarily assessed costs of $250 in addition to a fine and imprisonment. The right of the court to impose costs in a criminal case is- statutory. The so-called prohibitory liquor law, Act No. 338, Pub. Acts 1917, § 51 (Comp. Laws Supp. 1922, § 7079[51]), provides that on conviction-for a first offense the sentence shall include the “costs of prosecution.” It is not necessary that these costs shall be taxed by the clerk as in civil cases. The better practice is for the court to determine the amount and state it in the judgment. In re Johnson, 104 Mich. 343. But the costs imposed must bear some reasonable relation to the expenses actually incurred in the prosecution. In this case, they clearly do not. The defendant waived a jury. The trial was brief. The entire record consists of 21 pages. In view of these facts, we may take judicial notice that the $250 imposed is far in excess of the actual costs of the prosecution.
The judgment of conviction is affirmed, and when the case is remanded the trial court is directed to determine the costs in accordance with the above suggestions.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
Fead, J.
These are consolidated actions for specific performance of separate contracts of sale of real estate, the issues being identical. Plaintiffs were denied the relief in the circuit court.
Defendants apparently are not entirely accustomed to business transactions and acted through a real estate broker, Mr. Dille, and an attorney, Mr. Lee; Mr. Hall, an attorney, also represented them in some of the matters. The purchaser was M. Schwartz, but he never appeared during the negotiations, and, if there was such a person, his name was signed to the contract by H. W. Wienner, an attorney, who acted and conducted all the transactions for him.
The contracts, called “purchase proposition,” dated June 3, 1926, declared that Schwartz agreed to purchase and the respective defendants agreed to sell the described property. The sum of $250 was paid • to each defendant, and the agreements provided for execution of formal Union Trust Company form of land contracts, upon which additional down payments of $4,500 were to be made. The provisions of interest here are:
“Seller agrees to grant and convey to buyer a merchantable title to above property, subject to the hereinafter mentioned incumbrances and to such restrictions as may be of record. However, the above premises are not restricted against the erection of apartment houses; and further agrees to deliver within five days from date of acceptance hereof a complete Burton, Wayne county, or Union Trust Company abstract, to buyer, certified to date hereof, showing such title. If, upon examination of said abstract, title is found to be not merchantable, reasonable additional time should be granted seller to make same merchantable.
“This transaction to be closed at the office of Security Trust Company, Inc., on or before June 18, 1926. Possession is to be given on or before date of closing, subject to thirty-day tenancy from July 1st, 1926, at seventy-five ($75) dollars per month.”
Dille delivered the abstracts to Wienner in a few days. Before June 18th, Wienner took exception to certain entries and notified Dille. On June 22d, he put his objections in writing and added to them July 21st. On June 18th, defendants appeared at the appointed place with contracts ready to close the deal. ' Neither Wienner nor Schwartz appeared. Negotiations continued between Dille and Wienner concerning the title, of which defendants were informed. Defendants did not take the objections to the title seriously, hut did not give Wienner notice of such claim. On July 23d, Dille wrote Wienner, offering to declare the deal at an end and return the deposit or to have the contracts executed, and, with the agreed payments, left in escrow pending bill to quiet title, the money to be returned to Wienner if title could not be cleared. On September 15th, Wienner, claiming interest in himself under assignment from Schwartz, made a proposition to pay an additional $400 on each contract and to pay the balance of the first contract payment within six months, but not later than the quieting of title. These propositions were not acceptable to the other parties, and on November 12th, on advice of Mr. Lee, defendants served on Wienner written notices of forfeiture of the agreements of June 3d, for failure to perform. Shortly thereafter, plaintiffs became interested in .the property, dealing with Dille and Lee. On December 3d, they took assignment from Wienner of his interest. In the course of negotiations with-plaintiffs, Lee drafted a tentative agreement on December 3d, to the effect that contracts should be entered into according to the provisions of the agreements of June 3d, and requiring plaintiffs to acquire Wienner’s interest. No mention of title was made in this writing. On December 22d, Lee drafted another instrument to similar effect but requiring plaintiffs to accept the title as it was. Plaintiffs verbally agreed to these terms. The writing also provided that the deal should be closed on or before January 30, 1927. Neither of these tentative agreements was executed by any of the defendants. The matter dragged, plaintiffs urging action, until about January 17th, when a rumor became current that a large office building was to be erected in the vicinity, Lee declared the deal at an end, plaintiffs tendered the down payment to one defendant and attempted to find the others to make tender but were unsuccessful. Plaintiffs then began this suit.
Counsel for defendants brushes aside Wienner’s claims of defects in the abstract title with the assertion that they are groundless, but without demonstration of his assertion. Only one claimed defect need be mentioned. The abstracts show that Gottlieb Beck, then owner of the premises, died August 5, 1855, leaving a life estate to his widow and remainder to his surviving children. Seven children seem to be named in the abstracts, one of whom has not conveyed her interest nor been accounted for. In a subsequent deed, five children conveyed to the sixth, each assuming to convey an undivided one-sixth. Defendants’ titles came through the Beck heirs. Upon the abstracts there appears to be an undivided one-seventh interest in the property out-, standing in Marie Beck. While the item is rather ancient, may be due to a mistake in naming the children, and the probability of its ready cure might be reasonably inferred or be demonstrated by extrinsic evidence, the contracts required the merchantability of title to appear upon the face of the abstracts, and such inference or extrinsic evidence would not cure the defect. Ogooshevitz v. Arnold, 197 Mich. 203; Geithman v. Eichler, 265 Ill. 579 (107 N. E. 180).
Defendants contend that under the “purchase proposition, ’ ’ execution of the formal land contracts with down payments was required to be made on June 18th, and that defects in the abstract title were to be thereafter corrected. Counsel have cited numerous cases but none in point, as all of them rest upon the language of the respective contracts. The obvious purpose of requiring abstract title in advance of execution of a formal contract was to as sure the purchaser, before he should be required to pay large sums on the property, that the vendor had title and the contract would be effective. In this connection, see Waller v. Lieberman, 214 Mich. 428, and Northern Wyoming Land Co. v. Butler, 252 Fed. 971. If no time to remedy defects had been granted vendors, the purchaser would have had a right to withdraw from the agreements and have return of the preliminary payments on failure of vendors to furnish abstracts showing merchantable title before or at the time for execution of the formal contracts. The extension of time for perfecting the abstracts was for the benefit of defendants, to hold the purchaser to the agreement for a reasonable time in order that defendants might cure the defects. The language of the instruments is so plain as to scarcely need construction. It did not require the purchaser to execute the formal contracts until title had been made merchantable' on the abstracts.
Plaintiffs and their assignors were, therefore, not in default. The defendants made no effort to cure the title. Not having perfected it upon the abstracts, the}? were in default. A vendor in default, who is not in condition to perform on his part, cannot forfeit the contract for nonpayment by the vendee. Getty v. Peters, 82 Mich. 661 (10 L. R. A. 465); Bartlett v. Smith, 146 Mich. 188 (117 Am. St. Rep. 625). The declarations of forfeiture of November 12th were not operative.
Defendants also contend that there was no mutuality of obligation in the “purchase proposition” because Schwartz had no existence. The testimony leaves a grave question as to his existence, but does not demonstrate that he was not real. If he was not in being, Wienner was the principal. If he was in being, Schwartz’s title came to Wienner and through Mm to plaintiffs. In either event, the contract was mutual.
Increase in value of property after execution of a contract of purchase is not of itself ground for refusing specific performance. Baller v. Spivack, 213 Mich. 436.
The plaintiffs are entitled to decrees of specific performance, with costs.
North, C. J., and Fellows, Wiest, Clark, Mc- • Donald, Potter, and Sharpe, JJ., concurred. | [
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] |
North,.J.
This is a bill filed in aid of execution. Most of the facts and circumstances out of which the- suit 'arises are reported in Comstock v. Horton, 235 Mich. 282. Subsequent to taking the decree in 'that case, which fixed Mr, Comstock’s liability in the amount of $5,540.17, the plaintiff herein caused successive executions to be issued by means of which partial satisfaction of the decree was obtained; and thereafter he caused another execution to be issued and a levy to be made upon 320 acres of land to which the defendants held title as tenants 'by entireties. This bill was filed for the purpose of securing cancellation of two deeds by which Mr. Com-stock changed the title to this 320 acres of land from his sole ownership to that of himself and wife as tenants by entireties; and to enable the receiver to obtain satisfaction of the uncollected portion of the decree by the sale of this land. Service was obtained ■ upon both Mr. Almon B. C. Comstock and his wife, Hattie Comstock. Mr. Comstock was defaulted for want of answer. Mrs. Comstock contested the case, but a decree was entered against her in the circuit, and she has appealed.
The property in question cost $6,000, and it is the claim of the appellant that she paid one-half of the purchase price from her own funds, and that she therefore has a valid claim upon the property for that amount together with accrued interest. If this claim is satisfied, she has expressed a willingness to release any interest she may have in the property notwithstanding Mr. Comstock had died before the hearing in the circuit court, and she as his survivor had'become the sole possessor of the record title.
The plaintiff herein is the receiver for the Vanderbilt' Exchange Bank, a private banking institution, which, prior to the receivership, was owned and conducted by a copartnership consisting of Mr. Com-stock and two others. It is the claim of the appellee that the change of title of the property in question from Mr. Comstock to himself and wife was without consideration, and since at the time of this transaction Mr, Comstock and his copartners were in debted to the bank on obligations which were later evidenced by the renewal notes on which the decree for $5,540.17 was based, such transaction must be held to be a fraud upon the creditors of the bank, which is now insolvent. The relief here sought by the receiver is invoked under Act No. 215, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 12897), which in part is as follows:
“In all suits begun or hereafter to be begun by the filing of bills in aid of execution, the complainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution with the levy or levies thereon indorsed and proof of the conveyance or conveyances complained of. The burden of proof shall then be upon the judgment debtor, or the person or persons claiming through or under him or the person or persons whom it is claimed are holding property in trust for said judgment debtor to show that the transaction or transactions are in all respects bona fide or that said person or persons are not holding as a trustee or trustees of said judgment debtor.”
The plaintiff having made a prima facie case, the question for our consideration and determination from the record is whether Mrs. Comstock has shown that the transaction whereby she obtained her interest in this property was in all respects bona fide. This change of title from Mr. Comstock to himself and wife as tenants by entireties occurred June 4, 1915. The testimony sustains the plaintiff’s contention that the notes on which the decree against Mr. Comstock for $5,540.17 was based were renewals of former obligations of Mr. Comstock and his co-partners to the Vanderbilt Exchange Bank, which were outstanding at the time Mr. Comstock caused the title to the property in question to be changed to himself and wife,
The bill of complaint charges that the transaction assailed was consummated with the intention of defrauding the creditors of Mr. Comstock and of the bank, and that it was without consideration. If it was without consideration, it was a fraud in law as to existing creditors. Cole v. Brown, 114 Mich. 396 (68 Am. St. Rep. 491). Byreason of the statute above quoted the burden of proof was imposed upon Mrs. Comstock as grantee to establish such consideration. The testimony of Mr. and Mrs. Com-stock was taken by deposition for use in case of Comstock v. Horton, supra, and by stipulation these depositions,have been used in this case. Both Mr. and Mrs. Comstock testified that she "paid $3,000 of her own money towards the purchase price of this property; but notwithstanding this, we find much in the record which seems to render this testimony quite incredible. At the time the depositions were taken Mr. Comstock was a sick man whose memory seemed seriously impaired. He testified he “presumed” his son, who died in 1909, left an estate of $10,000 or $15,000 and “probably” Mrs. Comstock received from that estate the $3,000 which she contributed toward the purchase price of the property here involved.' His son died intestate and Mr. and Mrs. Comstock each received one-fourth of his estate; but Mr. Comstock was unable to recall what amount he received.
Mrs. Comstock told much the same story on direct examination, but when cross-examined it soon developed she was far from being a frank and fair witness. At one time she testified she received from her son’s estate between $4,000 and $5,000, but later she fixed the amount as.being $3,000 to $4,000. From the inventory and final account it appears quite conclusively that Mrs. Comstock’s one-fourth interest therein could not have exceeded $2,000. At first she testified she turned this money over to her husband something like a year after the son’s death, but upon having it called to her attention that the son died five or six years before the land was purchased by Mr. Comstock, she admitted her error. The following indicates the unsatisfactory character of her testimony:
“ Q. You were mistaken when you said about a year’s time after your son died you turned this money over to your husband?
“A. Sure, I’m mistaken.
“Q. Three thousand dollars accounted for. What did you do with the balance?
“A. Did what I liked with it.
“Q. Where did you get the money to buy this property in Ontario ?
“A. I had three or four houses back there. Sold some houses and lots.
“Q. Where did you get this money to start with?
“A. Grot it out of my son’s estate.
“Q. You got between three and four thousand dollars out of your son’s estate and let your husband have three thousand dollars. Couldn’t buy a house with what was left. Where did you get the money?
“A. I am not going to tell you.
“Q. These people want to know where this money came from to buy this house.
“A. I wouldn’t say where the money came from to buy this property in California. I can tell you but I don’t think it any of their business. My mother died a while ago and left me some property.
“Q. How much money did she leave you?
“A. Two thousand dollars.
“Q. How long ago?
“A. I couldn’t tell. ’’
Her attempted explanation- as to where she kept her money during the years prior to the time when she claims she invested it in this property is lacking in probative force. The record discloses that Mrs. Comstock bought and owned the home in California in which she and her husband lived, and that she also possessed some vacant lots, but the value of her interest in these properties is not disclosed by the record. She testified that in 1924, when she was at Grayling, Michigan, she contributed $500 to relieve the distressed condition of the Vanderbilt Bank; and when asked if it was her money and from what source she obtained it, she testified: “I got'some out of interest. I have several mortgages.” Thus it appears that whatever she received from her son’s estate and from her mother’s estate is accounted for, 'and the probability of her having invested this money or any of it in the property here involved, as she now claims, is rather remote. There is credible testimony that Mr. Comstock stated at different times that he was placing his property beyond the reach of his creditors. A Mr. Morford was owing Mr. Comstock $750 on two notes, and at the latter’s request, in lieu of these, a note for that amount, was given by the debtor to Mrs. Comstock. Regarding this transaction Mr. Morford testified:
“He (Mr. Comstock) was very frank in his statement regarding his reasons; he said it was in regard to avoiding responsibility to the creditors of the Vanderbilt Exchange Bank.”
The transaction just noted was remote in point of time from that involved in this suit, but it corroborates other testimony which tends strongly to sustain the plaintiff’s case. We are of the opinion that the defendant has not established the bona fides of the transaction whereby she became possessed ■ of the title to the land involved; but that on the contrary the transaction appears to be one of several whereby Mr. Comstock, in anticipation of financial adversities, sought to put his property beyond the reach of his creditors. The circuit judge decreed that the deeds by means of which Mrs. Comstock became a joint tenant with her husband in this property should be set aside.
That decree is affirmed, with costs to the appellee.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The C. W. Marsh Company, of Muskegon, was organized in May, 1907, with a paid-up capital stock of $5,000, represented by 500 shares of the par value of $10 each. The incorporators, as shown by the articles filed, were C. W. Marsh, Otto Loescher, and John F. Denslow. Marsh and Loescher were each subscribers for 249 shares and Denslow for 2 shares. The purposes of the corporation were the manufacture and sale of leather specialties and knit goods and the purchase and sale of leather. Marsh had been-engaged in such manufacture for several years, and had purchased leather from a tannery in Muskegon, of which Loescher was manager. He turned in his plant as a part of his stock subscription. At the suggestion of their attorney that there must he three stockholders, Marsh and Loescher agreed that one share of their stock should he issued to Denslow, and certificates numbered 1 and 2 were accordingly issued, hut left in the possession of .the secretary. At the organization meeting, at which all were present, the three were elected directors, and at the directors’ meeting which followed Marsh was elected president, Denslow vice-president, and Loescher secretary and treasurer. The minutes of the corporation show that annual meetings were held each year from 1908 to 1926 inclusive. Denslow did not attend any of these meetings. The same directors and officers were, however, elected.
On May 7, 1908, Denslow indorsed one of his certificates to Mrs. C. W. Marsh and the other to Mrs. Otto Loescher, and new certificates (Nos. 5 and 6) were issued to them. On February 3, 1909, these certificates were assigned to Denslow and two new certificates (Nos. 7 and 8) issued to him. "While he acknowledged the receipt of them on the stubs, they were not delivered to him. Certificate No. 7 was kept by Marsh. Certificate No. 8 bears an indorsement assigning it to Otto Loescher, and it has since been in his possession. It appears to have been signed in the presence of David D. Erwin, the then attorney for the company. The ñamé “Otto Loescher” thereon is in the handwriting of Mr. Marsh. The profits were each year divided between Marsh and Loescher.
In 1926, John E. Johnson, who had been in the employ of the company since 1909, and had been its manager for many years, desired to purchase some stock therein. Both Marsh and Loescher were anxious to permit him to do so, but were unwilling to disturb the division of stock held by each. They consulted Mr. Keeney, an attorney at Grand Rapids, as to how this could be accomplished, and represented, as testified to by him, that they were “the owners each of a half interest in that business and they had to consider what would be the effect if somebody else were taken in.” Marsh later wanted his son-in-law taken in.
At the annual meeting in January, 1927, Denslow was present at the request of Marsh. It was the only meeting that he had had notice of or attended after the first one. At this meeting, Marsh and Denslow claimed that Denslow was the actual owner of the two shares of stock represented by certificates Nos. 7 and 8. He was permitted to vote the one share represented by certificate No.- 7, and Loescher was not permitted to vote the share repre sented by certificate No. 8. The result was that Marsh was re-elected presideht, Denslow vice-president at a salary of $1,00.0 per year, and Marsh’s son-in-law, Bradbury, was elected secretary and treasurer at an annual salary of $3,500.
In May following, the bill of complaint herein was filed by Denslow. In his prayer for relief he asked that he be decreed to be the owiier of certificate No. 8, that Loescher be ordered to deliver it to him, and that in default thereof it be annulled and a new certificate for one share of stock be issued to him. In his answer defendant denied, that plaintiff was the owner of the stock in question, and by cross-bill prayed that the court should decree the ownership to be in him and that the action taken by the stockholders at the annual meeting in 1927 be declared a nullity and the officers enjoined from paying the salaries voted thereat. The decree entered granted plaintiff the relief prayed for, and from it defendant has appealed.
We have read this record with care. We are always loath to reverse a trial court on findings óf fact made by him, but the hearing before us is cle novo and we have no right to shirk the responsibility imposed on us of deciding the issues of fact presented. In our opinion the preponderance of the proof does not sustain the finding of the trial court, but leads to the opposite conclusion.
“Actions speak louder than words.” The intent of the parties as to the ownership of this stock is clearly indicated by the following: Plaintiff received two certificates for one share each, not a certificate for two shares; he assigned these certificates to Mrs. Marsh and Mrs. Loescher on request, without claim of ownership on his part; he accepted the new certificates issued in place of those surrendered and at once assigned one of them to Loescher; he was never notified of a meeting of the stockholders or directors, nor .did he attend any such meeting for the 20 years during which he now claims to have been an actual stockholder; he received' no dividends, although the net earnings on two shares amounted to from $200 to $300 per year from 1916 to 1926.
Were the plaintiff now claiming this stock from both Marsh and Loescher, these facts would clearly show that he was not entitled to it. That Marsh now seeks to support his claim cannot overcome the force and legal effect which should be given to them. It is apparent that plaintiff permitted his name to be used as a stockholder at the time of the incorporation to make up the number required by law. . He never had any actual ownership of the stock.
We have not overlooked the fact that Denslow was named as a stockholder in the annual reports made. The records of the company so disclosed. Nor are we unmindful of the testimony of apparently disinterested witnesses as to statements made by defendant of the intent with which he secured plaintiff’s indorsement on certificate No. 8. These conversations were had many years before the witnesses testified, and cannot be said to outweigh the effect of what was actually done by the parties of which there is no dispute.
The cross-bill having been withdrawn, a decree may be here entered dismissing the plaintiff’s bill, with costs of both courts to appellant.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Wiest, J.
This is a suit to restrain unfair business competition. Some years ago George Belding and his wife, Harriet, purchased the business of cleaning and dyeing clothes at 7422 Kercheval avenue in the city of Detroit, and adopted the trade-name of “Belding’s Cleaners & Dyers.” Later, together with James Domenic, they formed a copartnership and continued the business at the same place under the same trade-name. Still later, the three partners organized a corporation to carry on the business, and named it “Belding’s Cleaners & Dyers.” The corporation continued the business at No. 7422 Kercheval avenue. Mrs. Belding filed a bill for divorce, and, in a property settlement, Mr. Belding gave her his holdings of stock in the cor poration, and severed his connection with the business. The lease of the premises at 7422 Kercheval avenue was in the names of George and Harriet Belding, as lessees, with right to an extension, and, after Mr. Belding left the corporation, he exercised the option in the lease, and had the term extended in his name. The corporation had to give up the premises, and, to continue business, rented a place across the street. George Belding then opened business at the old stand under the trade-name of ‘ ‘ Geo. Belding Cleaner & Dyer,” with window lettering in script and colors closely simulating the sign used by plaintiff. The place, name, and sign occasioned confusion, benefited defendant, and injured plaintiff.
Defendant appealed from a decree restraining him from advertising his name and business in form of lettering similar to plaintiff’s, or using his name in combination with “Cleaners-Dyers” or “Cleaner and Dyer,” or “in such a way as to lead the public to believe that he or his business is in any way connected with that of Belding’s Cleaners & Dyers, a Michigan corporation.” Plaintiff also took an appeal, and asks that defendant be restrained “from using his name in any way in connection with the cleaning and dyeing business at 7422 Kercheval avenue, or in the immediate vicinity thereto.”
Manifestly, defendant purposed to avail himself of the favorable reputation the name Belding, in connection with cleaning and dyeing, had acquired in the very building and' in the vicinity where he established his competing business. Defendant, by employment of the name Belding, in combination ■with the designation, Cleaners and Dyers, when he first engaged in the business, and again during the partnership, and yet again in fixing the name of the corporation, constituted it a trade-name, rendered it, as such, no longer personal to him, and left its exclusive use to the corporation when he disposed of his interest therein. Defendant had a right to use his name in trade. He used his name, and constituted it a distinctive part of the name of the corporation he organized. The corporation, by his act, acquired the right to use his name to identify its business, and there the name remains beyond his recall or of use hv him in a competing business.
As stated in Hopkins, Unfair Competition (4th Ed.), p. 181:
“Promoters of a corporation whose names have been used as a part of the corporate name cannot he permitted to use their names in connection with and as the name of a rival company.”
A corporation must have a name in order to function. The incorporators select or coin the name. Consent by an incorporator to the use of his name and the adoption thereof in naming the corporation gives the name a trade or business identity, and estops the dedicator from thereafter using his name in a competing trade or business.
The principle we here apply is found in Williams v. Farrand, 88 Mich. 473 (14 L. R. A. 161); Penberthy Injector Co. v. Lee, 120 Mich. 174; Gordon Hollow Blast Grate Co. v. Gordon, 142 Mich. 488; Young & Chaffee Furniture Co. v. Chaffee Brothers Furniture Co., 204 Mich. 293; Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manfg. Co., 37 Conn. 278 (9 Am. Rep. 324).
"We think the decree in the circuit, enjoining defendant, “from using in connection with his name and / or business, the combination or combinations ‘Cleaners-Dyers’ and / or ‘Cleaner and Dyer,’ ” awarded plaintiff áll and even more than it claims in its appeal.
The decree should be modified in two respects. (1) The restraint should not run “forever,” but only while plaintiff uses the name. (2) The restraint should be limited to defendant’s use of his name in connection with the cleaning and dyeing business at 7422 Kercheval avenue, or the vicinity thereof, or in competition with plaintiff’s business.
So modified, the decree is affirmed, with costs to plaintiff.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
While a passenger for hire on one of the street cars of defendant’s municipally-owned transportation system on August 26, 1926, plaintiff was seated next to an open window near the front of the car, with his elbow resting upon the ledge, which was 'about three inches in width, and engaged in reading a newspaper. As the car proceeded along Beaubien street, it approached a truck parked near the curb. From the curb to the nearest rail was 9 feet and 10 inches. There was no person on the truck. It is plaintiff’s claim that the front end of the street car came in contact with the rear end of the truck, that the jolt caused his arm to drop out of the window. It was quite badly crushed between the truck and the car. In this action for damages he recovered a verdict for $10,000. Defendant’s motion for judgment non obstante veredicto, which had been reserved, and a motion for a new trial, were denied and judgment entered on the verdict. Defendant seeks review thereof by writ of error.
1. Negligence of the Parties. It will serve no useful purpose to review the .evidence bearing on the questions in dispute. As stated by the trial court, “there was a conflict of testimony as to what really happened, therefore making it a question of fact for a jury.”
2. Admission of Evidence, (a) Dr. Tolman, a physician and surgeon of 34 years’ experience, was sworn as a witness. During his examination the plaintiff was permitted to bare his arm and the doctor explained to the jury the nature of the injury thereto. He testified that in moving both the shoulder and the elbow joint there was a sound “much like an old-fashioned coffee grinder,” and illustrated this fact by the use of plaintiff’s arm. It is said that the plaintiff then made “exclamations of pain” in the presence of the jury, and that error was committed thereby. The plaintiff had theretofore testified that he at times suffered pain. While the doctor might not testify to exclamations of pain on an ex amination made by him for the purpose of testifying (Jones v. Village of Portland, 88 Mich. 598 [16 L. R. A. 437]), we find no error in wbat there occurred. Butts v. City of Eaton Rapids, 116 Mich. 539.
(b) Doctor’s Bills. There was error in the admission of two bills handed plaintiff by the bookkeeper of the surgeon who attended him, without evidence of the reasonable value of the service rendered. Alt v. Konkle, 237 Mich. 264, 270.
3. Instructions to the Jury, {a) The instruction as to what constituted negligence on the part of the defendant is not subject to the criticism indulged in. It fairly apprised the jury of the elements of proof necessary to sustain the charge.
(5) The jury were instructed that if the plaintiff permitted his arm to protrude out of the window so that it might come in contact with vehicles or objects near the car, he would bé guilty of contributory negligence. The court then said:
“That is, if he wilfully, of his own will, permitted himself — as the defendant has contended in this case — did allow his arm to protrude through the window, and that protrusion was the cause of the accident, or contributed to the accident, then, of course, that would be what is known in law as contributory negligence.”
The use of the word “wilfully” was unfortunate. Negligence is predicated on want of care. Leary v. Traction Co., 171 Mich. 365 (45 L. R. A. [N. S.] 359). Witnesses for the defendant testified positively that there was no jolt, that the car did not strike the truck. Under this instruction the jury, could have found for plaintiff unless he intentionally permitted his arm to protrude through the window. There was a further instruction, given at the request of defend ant, which seemingly corrected this error,. To sustain the verdict, we must assume that the jury followed it rather than that above quoted.
(c) In his instructions the court said:
“Under the head of this matter of pain and suffering and humiliation, I am unable to give you any definite rule by which you can assess damages. Nor could any court give you such a rule. However, the law allows jurors to assess damages for pain and suffering and humiliation. Nobody can measure pain and suffering in damages. No one can value them particularly. If a man said to you: ‘What will you take to suffer this or that?’ usually you would not take anything. There is no way of measuring pain and suffering definitely. But, I say to you, ladies and gentlemen of the jury, it is a proper measure of damages. The only thing I can say to you about assessing damages in this kind of a case for pain and suffering is that it is just a question of plain common sense. One judge has said it was just a matter of plain horse sense, and that particular statement was approved by the Supreme Court. Allow just such a sum as you think should be allowed in dollars and cents.” •
This court has many times said that an appeal by an attorney to a jury to consider what they would take to undergo the pain and suffering endured by the plaintiff as a result of an injury is improper, and constitutes reversible error. Daly v. Railroad Co., 197 Mich. 340, and cases there cited.
The members of this court differ much as to the effect of this instruction on the jury. Some of the Justices are of the opinion that it was quite as prejudicial, if not more so, as if the statement had been made by plaintiff’s attorney. An instruction which might have been so understood should not have been given.
4. Excessive Verdict. It is urged that the verdict of $10,000 is excessive. The plaintiff; was 58 years of age at the time of his injury. He had theretofore been employed for about 14 years by a motor company “following watchman’s jobs or investigating, watchman’s positions mostly,” for which he received $35 for 6 days’ service. He resumed the same employment about 7 months thereafter, but at a weekly wage of $25. This reduction is not explained. The nature of his injury does not account for it.
After a careful consideration of the entire record bearing upon the assignments of error, we feel constrained to hold that the judgment should be set aside and a new trial ordered, with costs to defendant.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Fead, C. J.
This is an action for damages for personal injuries arising out of the alleged negligent operation of an automobile. Plaintiff was less than four years old. The injury occurred in Grand Rapids. Plaintiff claimed that defendant Becker, an employee of defendant Sackett, was driving at an excessive rate of speed, and on the left side of the street; that plaintiff stepped off the curb on the left side and was struck. Defendants claimed that Becker was driving at a speed of about 12 miles per hour on the right side of the street, that plain-, tiff suddenly stepped out from the right curb and behind another car, ran against defendants ’ car, and the injury was the result of inevitable accident. Plaintiff had verdict of $2,000.
In the voir dire examination, plaintiff’s counsel inquired of some of the jurors whether they carried insurance in a certain foreign corporation named, or had connections with certain insurance agents. He persisted in such course after adverse rulings by the court. The trial judge, on motion for new trial, thus characterized the incident:
“In the cases of Snyder v. Mathison, 196 Mich. 378; Morris v. Montgomery, 229 Mich. 509; and Fuller v. Magatti, 231 Mich. 213, in each of which this same attorney represented the plaintiff, he has had ample opportunity to learn the rule as announced by the Supreme Court, but in spite of his knowledge and experience with the same, persisted in the same tactics in this case, and did so, as has been stated, after being told by the court that the questions he was asking were improper. It had’ all the appearance of being a deliberate attempt to flaunt the rule announced by the Supreme Court and a disregard of the ruling of the trial court.”
We cannot say that the verdict was against the overwhelming weight of the evidence, even though, as was said by the trial court, the evidence on the part of the plaintiff was not “particularly convincing.” The injection of an insurance company into the situation might easily have been a determining factor in the verdict. The evident purpose of its injection was to arouse prejudice and its tendency was prejudicial. Conduct of counsel was reversible error within the test laid down by this court in Holman v. Cole, 242 Mich. 402, 405:
“Was plaintiff’s counsel acting in good faith and without intention to secure advantage to his client in injecting into the case the fact that defendant was carrying insurance?”
The judgment is reversed, and new trial ordered, with costs to defendants.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Plaintiff filed a bill against defendant to construe a bill,of sale and lease to exclude defendant from operating a restaurant and lunch room on the first floor and basement of the Recreation building in Detroit in competition with plaintiff; to correct and reform the lease, to make it contain an express agreement giving plaintiff the exclusive right to operate a restaurant and lunch room on the first floor and basement of said building; for specific performance of the lease, as reformed, and to enjoin ■ defendant from operating a lunch room, counter lunch or other similar business in competition with plaintiff on the first floor or in the basement of the building, both temporary and perpetually.
The Recreation- building on the corner of Shelby street and Lafayette boulevard in Detroit is a pretentious building devoted to recreation purposes except the basement and stores on the first floor.
Plaintiff claims it was the policy of defendant that no tenant in the Recreation building should be in competition with any other tenant therein; that the parties to the lease in question contracted with reference to this policy; that such policy is impliedly a part of the lease; that it was not necessary, under the circumstances, to insert a covenant therein binding the lessor not to engage in competitive business; and though such express covenant was not included in the lease it was impliedly a part thereof; that the lessor was in the restaurant business in the building; that such business was not successful. It was • selling its business. Plaintiff was purchasing the business from it, and from the facts that defendant was the owner of the building, was selling out the business to plaintiff, was providing in the lease there should be no competition with plaintiff by other tenants, it is bound not to engage in competition with the business sold, which' sale included granting plaintiff a lease and exclusive restaurant privilege, —the principal consideration for plaintiff’s purchasing the property, business, and lease of defend, ant.
The lessee covenanted it would not sublet the store • ' to anyone for the purpose of conducting a business in competition with the lessor or any other tenant of the building; the leased premises, during the continuance of the lease, should be used and occupied for restaurant purposes; the lessee might use the premises for any other legitimate business not in competition with the lessor or the then tenants of the ground floor of the building. The lessor covenanted that during the term of the lease it would not rent any space in the basement or ground floor for a restaurant, dairy lunch, or similar business, and would refuse consent to the transfer of existing leases covering any part of the basement or ground floor so as to permit operation of a restaurant, dairy lunch, or similar business therein. The lease says:
“Provided, however, that nothing herein contained shall prevent the lessor from leasing any portion of the basement or ground floor of said building for the purpose of operating a soda fountain.”
The presumption from the proviso is that but for such proviso the preceding part of the contract would include the subject-matter of the proviso, and the lessor be excluded from renting any portion of the basement or ground floor of the building even for a soda fountain; and that lessor, having by this proviso expressly excepted only leases for soda fountains, has impliedly excluded thereby its right to lease for all other purposes; that the covenant in question was verbally agreed upon but was omitted from the lease by mistake of the parties, and that the testimony shows the lease should be .reformed so as to include such covenant and then specifically enforced.
Plaintiff recognizes that a covenant by a landlord that he will not lease space to one tenant in competition with another, does not of itself prevent the landlord from engaging in such competing business; that it has the burden of showing what the real agree ment was; that the written lease does not, by reason of mistake of the parties, express the true agreement made, and that the presumptions are against its contention; but it contends it has sustained the burden of proof in this case by showing the manner in which the business of leasing stores in the Recreation building has been carried on, by defendant’s failure in the restaurant business and its desire to sell that business, its offer to plaintiff of a lease with exclusive privileges as an inducement to plaintiff to purchase its property and business; that plaintiff paid defendant a sum in excess of the value of the personal property acquired with the understanding it was paying for the business and the lease with exclusive privileges, in addition to such personal property; that the testimony of the parties who conducted the negotiations for each of the parties shows the agreement was as claimed by plaintiff, and that the specific covenant claimed was left out by mutual mistake of the parties when the written lease was prepared and signed.
The trial court found it was clearly understood that plaintiff was to have the exclusive right to operate the restaurant on the first floor and basement; that this was the inducement held out to plaintiff by defendant, and decree was entered in accordance with the prayer of plaintiff’s bill of complaint.
The facts warrant the conclusion reached by the trial court and its decree is affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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North, C. J.
The plaintiff herein, being the owner of 16,880 acres of land in. Alger county, Michigan, entered into a contract on December 4, 1920, with George W. Swigart in behalf of himself and the other defendants whereby the defendants undertook to sell plaintiff’s land. The contract contained these provisions:
“10th. It is considered for the interest of both parties that sales of the lands embraced in the annexed schedule be made as speedily as possible, and to that end the second party agrees that by December 31,1921, he will have sold at least three thousand (3,000) acres and thereafter, that he will sell at least three thousand (3000) acres in each year until all shall be disposed of. * * *
“11th. In case, however, there shall be default in respect to the amount of land sold, or contracted to be sold before December 31,1921, and the amount to be sold by second party each year thereafter, as in clause 10 provided, it shall'be optional with first party, to declare this contract forfeited as provided in clause 12.”
The defendants herein failed to sell 3,000 acres of land by December 31, 1921, as required by the contract. Instead they had disposed of only 839 acres, and thereupon the plaintiff filed a bill for specific performance on the 14th day of January, 1922, whereby it sought to have the defendants compelled to purchase from it the' balance of the 3,000 acres. Specific performance was denied by the trial court,- and upon appeal to this court the decree in that particular was affirmed. Chatham-Trenary Land Co. v. Swigart, 220 Mich. 137. The suit was transferred from the chancery to the law side of the circuit court of Alger county. The plaintiff filed a declaration to which the defendants pleaded the general issue and gave notice of special defenses. The declaration as framed by the plaintiff alleged a right to recover both on the theory of a total abandonment of the contract by the defendants and also on the theory of a breach of the contract-by reason of the defendants’ failure to sell the specified acreage during the year 1921. The record discloses that much consideration was given by the court and counsel to the question as to what was the proper theory upon which the plaintiff’s case should be submitted to the jury. The trial court held that there was no evidence of a total abandonment of the contract by the defendants prior to the date upon which suit was brought (November 29, 1922). It was also held by the trial court, notwithstanding the breach of the contract by the defendants in failing to sell the required acreage during the year 1921, that the dam ages which, the plaintiff might recover in that suit were limited to such as it had sustained by reason of the defendants ’ failure to sell 3,000 acres by December 31,1921. This position was taken notwithstanding the offer of the plaintiff to show by competent’ proof what damages it would suffer by reason of the contract being terminated by defendants’ breach thereof and the consequent failure to sell the remaining portion of the land. Plaintiff’s offer seems to have been rejected on the ground that the contract was divisible on the basis of the minimum acreage required to be sold annually, and therefore the defendants were in default only to the extent of their failure to sell the specified acreage in 1921. On May 15, 1924, the jury rendered a verdict in favor of the plaintiff for nominal damages only. Neither party appealed.
April 30, 1925, the plaintiff filed a declaration in ■ the circuit court of Marquette county, Michigan, in the instant case; and it alleges its right to recover damages in consequence of the defendants’ total abandonment of the contract hereinbefore mentioned, which is alleged to have occurred on the 31st day of December, 1924, and also to recover damages for the breach of the contract because of defendants’ failure to sell the stipulated amount of acreage during each of the years 1922, 1923, and 1924. The defendants moved to dismiss the plaintiff’s declaration on the ground that the verdict and judgment rendered in the circuit court in Alger county is res adjudicate/, of the issues presented in this case. This motion was granted, and the plaintiff reviews by writ of error.
The record conclusively shows that incident to the trial of the case in Alger county the circuit judge ruled adversely to the claim of the plaintiff in holding:
(1) There was no evidence tending to establish total abandonment of the contract by the defendants before that suit was instituted, and
(2) That notwithstanding defendants’ breach of •the contract by failing to sell 3,000 acres of land in 1921, the contract was “severable and the plaintiff is entitled to maintain and recover in this case only as to the value of the sale during 1921.”
After an extended consultation between the court and counsel, plaintiff’s attorney said:
“Then do I understand that your honor is going to limit the damages to the 2,200 acres or thereabouts not sold in 1921?
“The Court: Yes.”
Plaintiff’s counsel had urged that the record was such “as to justify the bringing of one action and the recovery of one set of damages for the entire breach of the contract.” Its offer to prove damages for the years 1922, 1923, and 1924 was objected to by defendants’ counsel and the objection was sustained. The ground of this objection was not made very specific, but it conclusively appears from the record that the defendants were seeking to exclude from consideration and adjudication in the Alger county case plaintiff’s claim for damages resulting from the total breach of this contract; and the defendants were successful in having the court confine recovery in that case to damages for failure to sell 3,000 acres in 1921. In their briefs the defendants assert that plaintiff did not recover damages for the years subsequent to 1921 because of plaintiff’s failure to make the necessary proof. The record does not sustain this contention. Plaintiff’s offer to make the proof was objected to by the defendants and the objection was sustained by tbe court. If the court’s ruling by which recovery was confined to 1921 was correct on the ground that the contract was sever-able, the objection of res ad judicata now urged is not well founded. There is no claim that plaintiff’s right of action for damages because of the failure of the defendants to sell plaintiff’s land other than the 3,000 acres apportioned to 1921 has been adjudicated upon its merits; but the defendants now assert as a reason in support of their motion to dismiss:
“That the contract sued upon in this case is entire and indivisible, and the election of plaintiffs to commence suit in Alger county, Michigan, for a breach of said contract prohibits it from now suing defendants for an alleged breach of the same contract.”
This contention is directly opposite to the position taken by the defendants in the Alger county suit wherein they successfully objected to the introduction of proof by which the plaintiff sought to show its damages for the years subsequent to 1921. The admissibility of this proof was urged by plaintiff’s counsel on the ground that it should be allowed “the recovery of one set of damages for the entire breach of the' contract.” If the ruling of the trial court in confining recovery to 1921 was wrong, it resulted in nothing more than an improper splitting of plaintiff’s cause of action. The primary reason for the rule against splitting a cause of action is that the defendant should not be unreasonably harassed by a multiplicity of suits. Here the defendants, not only had an opportunity to have the question of damages for a total breach of this contract determined in the Alger county case, but the plaintiff urged that it should be litigated in that suit. This the defendants by their objection prevented- They are thereby estopped from now taking an inconsistent position before the court and claiming the benefit of the rule against splitting causes of action.
As above stated, defendants’ claim of res adjudicaba in support of this motion to dismiss is not based upon the contention that plaintiff’s right to recover damages for the total breach of the contract was adjudicated upon its merits; bht upon the claim that the plaintiff ought to have submitted that issue in the Alger county suit. The question actually presented by this record is not strictly a matter controlled by the rule of res adjudicaba, but rather by the application of the doctrine of* estoppel. Without so deciding, we may here assume that the contract involved is entire and indivisible, as is now asserted by the defendants on their motion to dismiss, but none the less by having prevented an adjudication in the former suit of plaintiff’s claim for damages resulting from a total breach, the defendants are estopped from now taking an inconsistent position. The law of estoppel as applied to a similar case has been discussed somewhat at length by Justice Fellows in Hassberger v. Supply Co., 213 Mich. 489. Wei quote only a part of the syllabus:
“Where defendant, in a suit for specific performance, claimed that no valid contract existed between it and plaintiff, and said suit was discontinued, it was-estopped from claiming later, in an action in assumpsit against it to recover the money paid under said alleged contract, that it was valid and enforceable, its admission in the former suit being a judicial one and conclusive upon it in the second trial. ’ ’
This doctrine has been applied by this court in the more recent cases of Majewski v. Barrel & Box Co., 230 Mich. 548; Besonen v. Campbell, 243 Mich. 209.
“A party who has successfully interposed a defense or objection in one action or proceeding cannot shift his ground and take a position in another action or proceeding which is so inconsistent with' his former defense or objection as necessarily to disprove its truth. ” 21 C. J. p. 1231.
“We must call attention to a matter of improper practice. This motion should have been denied by the circuit judge on the ground that the defense of res adjudícala must be pleaded in bar and cannot properly be raised by motion'to dismiss. Vyse v. Richards, 208 Mich. 383. The instant decision should not be considered a precedent for such practice. Cases have been reversed because of like practice. Crete Mills v. Canfield, 222 Mich. 458. However, this question was not raised either in the circuit court or in this court, and since the case has been carefully briefed by the respective counsel, we dispose of the question presented on its merits.
• The order granting defendants’ motion to dismiss was erroneously made. The judgment entered is reversed, with costs to the appellant.
Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. Fead, J., did not sit. | [
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North, J.
This suit was instituted to recover the balance alleged to be due on an open account for the sale of beer. The plaintiff brought the suit as an assignee of the Ironwood Brewing Company; and claims that in 1915 this company entered into an agreement with the defendant whereby it sold to him beer some of which was brewed by the Ironwood company and some by the Duluth Brewing & Malting Company; that for the return of empty containers to the respective companies the defendant was to be credited at a fixed rate; and that the credit for the empty containers returned by the defendant to the Duluth Brewing & Malting Company should be given to the defendant when the Ironwood Brewing Company received the credit memorandum from the Duluth company for each of .said shipments. The last item of the account was for such a credit and was dated October 31, 1918. This suit was started October 28,1924; and it is this last item alone which it is claimed saves plaintiff’s cause of action from being barred by the statute of limitations.
The defendant denies that he purchased any beer from the plaintiff’s assignor with the exception of a small quantity for personal use and for which he paid. He claims that he was employed by the Ironwood Brewing Company as its agent to deliver beer shipped to him by that company for delivery to various saloon keepers and private customers at Wakefield, Michigan, where the defendant resides. In this connection he claims that the Ironwood Brewing Company furnished a, warehouse at Wake-field where the beer was stored and also furnished him with a truck, and horses and wagon with which deliveries were made, and that he was paid a salary and commission for his services. Because the prohibition amendment to the Michigan Constitution became effective April 30, 1918, the business relations between the parties were terminated. It is claimed by the plaintiff the last of the containers were returned to the Duluth company on or about October 17, 1918. Defendant not only denies that he was indebted to the Ironwood Brewing Company for the alleged balance of the account, but claims that there was due him for services rendered about $1,400. The case was tried by a jury and the plain tiff had a verdict and judgment for $6,700.44. The defendant reviews by writ of error and relies upon assignments in which it is claimed the trial court erred:
“(1) In refusing to hold that plaintiff’s alleged right of action was barred by the statute of limitations.
“ (2) In refusing to hold that the plaintiff owned the alleged cause of action, if at all, as trustee of the stockholders of the Ironwood Brewing Company and not personally.
“(3) In refusing to direct a verdict for the defendant. ’ ’
From the verdict rendered it is evident that the jury accepted the plaintiff’s claim that the parties stood in the relation of vendor and vendee rather than that of principal and agent. And so far as there was an issue of fact as to the plaintiff’s suit being barred by the statute of limitations, the question is -also foreclosed by the verdict of the jury. In his notice given under the plea of general issue the defendant claimed he was “entitled to all of the credits set forth in the plaintiff’s bill of particulars,” and this item credited on October 31, 1924, was one of those credits. There is testimony in the record that the defendant admitted the correctness of this item of the account. The verdict of the jury is based upon competent proof and it controls.
A question of law is presented by the defendant’s claim that the credit for the returned containers was due to him at the time the containers were delivered to the Duluth Brewing & Malting Company, and under the proof the last of such deliveries was more than six years before this suit was brought. There would be greater force in this contention if the defendant had been dealing with the Duluth Brewing & Malting Company, but he was not, His con tractual relations were with the Ironwood Brewing Company; and one of the express arrangements between them was that the Ironwood company would give him credit on his account for returned containers when it was advised by the receipt of a credit memorandum that the Duluth company had credited the Ironwood company. The defendant was not entitled to the credit until the Ironwood company received such a memorandum. This was the method of handling these items during the whole of the three years over which the account extended. The credit was given to the defendant on the date he was entitled to it in accordance with their agreed and established method of crediting such items, and it saved the account from the bar of the statute. For a somewhat similar contract see Hebinger v. Ross, 175 Mich. 241, 246.
“In actions brought to recover the balance due on a mutual and open account current, the cause of action shall be deemed to have accrued at the time of the last item proved in such account.” 3 Comp. Laws 1915, § 12324.
“Payments upon an account are sufficient to render it an open and mutual account so as to prevent the remedy thereon from being barred.” Payne v. Walker, 26 Mich. 60; Hollywood v. Reed, 55 Mich. 308.
The claim that there was error in refusing to hold that the plaintiff should have brought this suit as a trustee of the stockholders of the Ironwood Brewing Company and not in his own personal right arises from the following circumstances: Incident to closing up its affairs, the Ironwood Brewing Company, on April 15, 1921, assigned to the plaintiff all of its “book accounts, open accounts and sums of money of whatsoever name, nature,” etc., due to it. On the same day the plaintiff executed and delivered to the Ironwood Brewing Company a declaration of trust showing that the assets of the Ironwood Brewing Company were turned over to him as a trustee for certain express purposes. The assignment and declaration of trust of the same day when construed together clearly constitute an express trust. The Michigan statute, 3 Comp. Laws 1915, § 12353, provides :
“Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust * * * or a party expressly authorized by statute may sue in his own name, without joining with him the party for whose benefit the action is brought.” * * *
It follows that the plaintiff had a right to bring the suit in his own name. Had he so desired, the defendant could have pleaded his claim for $1,400 as a set-off. His failure to do so was a matter of his own choice, and he cannot now be heard to complain. . The questions hereinbefore considered are controlling as to the defendant’s application for a directed verdict. The circuit judge was right in denying this motion.
The judgment of the lower court is affirmed, with costs to the appellee.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, C. J.
In March, 1925, plaintiff’s husband applied to defendant for a policy of life insurance. In the application and inedical report he represented that he did not use intoxicating liquors and had not been drunk within three years. A policy for $5,000 was issued by defendant, with plaintiff as beneficiary. Mr. Speath died December 5, 1926. Defendant, receiving information that his personal habits had not been as represented, sent its general counsel to see plaintiff on January 12, 1927. After some negotiations a settlement was reached, reduced to writing and executed by. plaintiff, under which defendant paid her $2,850 and she surrendered the policy and waived all further claim thereunder.
Without tendering or offering back to defendant the amount she had received in the settlement, plaintiff commenced this suit on May 23, 1927. Her declaration, in substance, set up the issuance of the policy and her claim that Speath told defendant’s agent he used alcoholic beverages once in a while and the agent inserted the false answers in the application without his knowledge; that Speath’s habits were also known to defendant before the policy was issued, through an independent report to headquarters; that, with such knowledge, it executed the policy and later collected all the premiums due it from Speath; that defendant’s general counsel practiced a fraud upon plaintiff by inducing her to accept settlement upon representations by him that defendant was under no obligation to pay any part of the policy because the false answers of the insured regarding his drinking habits voided it, and, if plaintiff commenced suit, she would incur great expense and would recover nothing; that because of plaintiff’s, inexperience in business matters she relied upon his representations; that she did not know the facts regarding defendant’s knowledge of Speath’s habits before the policy was issued; that Speath was only a moderate user of alcoholic beverages and he never concealed from nor misrepresented to defendant, or any of its agents, his habits in regard to the use thereof; and concluded:
“Plaintiff further says that by reason of the aforesaid misrepresentation, deception and fraud that she has a right to recover the balance of the amount due her under the aforesaid policy of insurance, to-wit, the sum of $2,150, together with 'the interest on the same from the 5th day of- December, 1926, and damages in the amount of $3,000.”
Plaintiff had verdict of $2,150 and judgment was entered thereon, with interest added. Defendant moved for verdict and judgment ‘ notwithstanding verdict, on the ground, among others, that plaintiff could not maintain the action without tender, before commencement of suit, of the amount received by her on the settlement.
It is an established and conceded rule that a party may affirm the transaction in which he has been defrauded, retain what he has received by it, and recover damages in an action of tort for injuries arising out of the fraud; or he may rescind, by putting the other party in status quo ante, or tender thereof, and sue on the original contract.' It is also an established and conceded rule that suit at law brought on an original contract would amount to a rescission of a settlement agreement covering such contract, and that tender back of the amount received on settlement would be a condition precedent to such action. The authorities are numerous, and the following are cited merely by way of illustration: Pangborn v. Insurance Co., 67 Mich. 683; Barnhardt v. Hamel, 207 Mich. 232; Randall v. Railway Co., 215 Mich. 413; Cole v. Oatman, 234 Mich. 128.
Even though the action be in form for fraud and deceit, if damages are sought on the claim of rescission, a tender back • is a condition to recovery. Kimble v. Gillard, 177 Mich. 250.
Defendant contends that the suit is on the policy. Plaintiff asserts it is an action in tort for fraud and deceit.. The statement of cause, of action in the declaration is not inconsistent with either contention. The allegations of fact constituting- estoppel and fraud may be regarded as appropriate to an action in assumpsit by way of anticipation of patent and inevitable defenses; or could be considered as proper averments in a tort action. The ad damnum clause, however, made claim for damages to be determined specifically from the contract upon the theory that, because of defendant’s fraud, the balance unpaid was due plaintiff under the policy. The case was tried on that theory. Neither the evidence nor charge of the court suggested any measure of damages other than the difference between the face of the policy -and the amount paid on settlement, nor theory of damages distinct from enforcement of the policy. No authority nor rule has been cited to support the contention that such measure of damages is recoverable in an action for fraud in inducing settlement of a contract. The measure is applicable only in case of rescission of the settlement. The purport of plaintiff’s pleadings, proof, and theory of trial was to repudiate the settlement agreement, reinstate the policy, and seek recovery of the contract sum, with allowance of credit for the amount already paid. This amounted to a rescission and plaintiff was not entitled to maintain the suit because she had made no tender of the amount received upon the settlement.
The judgment is reversed, with costs, and without new trial.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Plaintiff filed a bill for separate maintenance and injunction, for permanent alimony, and for other relief. The defendant filed an answer in the nature of a cross-bill. Upon the trial there was no dispute but that plaintiff was, upon the proof, entitled to a decree, and the court granted a decree of absolute divorce instead of a decree for separate maintenance. The principal dispute arose over the disposition made of the property. At the time of the marriage of the parties, plaintiff was possessed of considerable money and property which she had acquired as the proceeds of insurance policies and from her former husband. Defendant had no real property, and plaintiff says he had no money. The defendant contends he had approximately $1,500 which he had saved. At the time the bill herein was filed, defendant was in the house of correction serving sentence for an assault committed upon plaintiff. Plaintiff has appealed from the decree rendered, and attorneys for defendant concede the trial court was in error in the amount due upon the mortgage upon the real estate which the court said was $3,000, when in fact there was but $2,600 due upon the mortgage; that he did not take into consideration the sum of $919.17 spent by plaintiff for various purposes specified in the record, and it is contended he was in error in the value of equity in the property to the extent of approximately $1,400. Some other matters are in dispute. It is suggested no division of the property held by the parties as tenants by the entirety may be made, in the absence of a prayer in the bill of complaint or answer or cross-bill asking for the same, and any description of the lands so held. This would probably be true if section 11438, 3 Comp. Laws 1915, was the only statute in force. The effect of this statute is to make a division of property mandatory. Section 11416, 3 Comp. Laws 1915, provides the court, in lieu of a money allowance for alimony, may decree such a division between the husband and wife of the real and personal estate of the husband and wife by joint ownership or right, as he shall deem to be equitable and just. Tenancy by the entirety results from joint ownership between husband and wife. The court will divide the property of the parties. Plaintiff to have the real estate purchased and acquired by her, and pay defendant $2,000, upon the payment of which plaintiff will be entitled to a conveyance from him of his interest in the property held by the parties as tenants by the entirety, and if such conveyance is not made a certified copy of the decree herein may be filed in the office of the register of deeds as and for a conveyance thereof. In view of the disposition of the case, no costs will be allowed to either party.
Forth, C. J., and Fead, Fellows, Wiest, Ct.a-r.tt, and McDonald, JJ., concurred with Potter, J. | [
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] |
Reconsideration denied February 28,1992. | [
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Riley, J.
In this case we are asked to determine whether failure by a plea-taking court to adhere to applicable plea-taking requirements during the plea proceeding provides a defendant the opportunity to challenge the validity of a conviction so obtained in a collateral attack. Collateral attacks, as opposed to direct appeals, require consideration of the interests of finality and of administrative consequences.
Therefore, for the reasons set forth in People v Crawford, 417 Mich 607, 614-616; 339 NW2d 630 (1983) (Brickley, J., concurring), we conclude that the Court of Appeals erred in reversing defendant’s conviction. Accordingly, we reverse.
I. FACTS AND PROCEEDINGS
On May 8, 1987, defendant Marion B. Ingram was arrested for operating a motor vehicle under the influence of intoxicating liquor or while having a blood alcohol content of 0.10 percent (ouil). MCL 257.625; MSA 9.2325. Defendant was charged in the Kent Circuit Court with , ouil, third offense. The complaint made reference to four underlying ouil convictions. Two of these convictions were obtained in the 5th District Court, one in 1977 and the other in 1983. The third conviction was obtained in the 61st District Court in 1982, the fourth in the Ottawa Circuit Court in 1983. On March 18, 1988, defendant moved for reduction of the charged offense to ouil, second offense, claiming that three of the four prior plea-based convictions were invalid for the purpose of establishing the factual predicate for ouil, third offense. Defendant conceded the validity of the Ottawa Circuit Court plea-based conviction.
On April 22, 1988, Kent Circuit Judge George S. Buth ruled that the two 5th District Court prior convictions were infirm (having been obtained without counsel). However, Judge Buth ruled that the 1982 61st District Court conviction was not infirm (because defendant had been represented by counsel) and could be used to establish the factual predicate for ouil, third offense. Because two valid underlying ouil convictions remained, defendant’s motion to reduce the charged offense was denied. On December 6, 1988, the Court of Appeals denied defendant’s application for interlocutory review of this issue.
On March 1, 1989, defendant entered a conditional plea of guilty of ouil, third offense, preserving the right to appeal the validity of his prior 61st District Court conviction. Circuit Judge Dennis C. Kolenda, to whom the case had been reassigned, accepted defendant’s plea.
On June 6, 1989, Judge Kolenda denied defendant’s motion for reconsideration of the issue concerning the validity of the 61st District Court prior conviction, concluding that a claim that a court failed to adhere to the applicable plea-taking requirements during the plea proceeding does not provide defendant the opportunity to challenge by later attack. On July 5, 1989, rather than appealing, defendant filed a motion in the 61st District Court to withdraw his 1982 guilty plea which was used to establish the factual predicate for ouil, third offense in the present case. On August 8, 1989, 61st District Judge James B. Howard vacated the guilty plea, set the conviction aside, and reinstated the 1982 case for trial.
On September 20, 1989, Judge Kolenda denied defendant’s motion to withdraw his 1989 plea of guilty to ouil, third offense. Defendant then filed an application for leave to appeal in the Court of Appeals. However, while the application was pending, the circuit court found that defendant had violated the terms of his delayed sentence status. Therefore, on November 27, 1989, the court revoked that status and sentenced him to eighteen months to five years in prison. On February 5, 1990, defendant’s pending application for leave to appeal was dismissed without prejudice. Defendant then appealed as of right.
On December 17, 1990, the Court of Appeals reversed the defendant’s conviction and remanded the case for entry of a conviction of ouil, second offense, and resentencing thereon.
On March 22, 1991, this Court granted leave to appeal.
II. ANALYSIS
Federal and state courts have consistently found that considerations of finality and administrative consequences must become part of the process with which we assure the achievement of proceedings that are consistent with the rudimentary demands of fair procedure. Such considerations have been found to be of particular significance in cases where courts have been confronted with the concerns surrounding the procedural issue of collateral attack of plea-based convictions. We agree and therefore hold that failure of a plea-taking court to adhere to applicable plea-taking requirements during the plea proceeding does not provide a defendant the opportunity to challenge by collateral attack. The validity of such a plea, where the defendant was represented by an attorney when entering the plea or when the defendant intelligently waived the right to counsel, including the right to court-appointed counsel if indigent, is unassailable.
The issue of collateral attack was not directly presented to, nor addressed by, the Courts in Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), or People v Yost, 433 Mich 133; 445 NW2d 95 (1989). The only time that this Court has addressed the issue of a collateral attack of a prior plea-based conviction was in People v Crawford.
In Crawford, the majority stated:
A conviction defective under Jaworski can be challenged by a timely motion by the defendant to quash the supplemental information or to strike from the supplemental information the defective conviction. To be timely, such a motion must be made before a defendant’s plea of guilty or nolo contendere is accepted. [Id. at 613-614.]
However, because the defendant did not make a timely motion, the Crawford Court affirmed his conviction. Thus, by refusing to allow a collateral attack, the Court was not called upon to actually implement the holding it seemed to announce in the above-quoted paragraph. Rather, the Court conceded in its holding that it did not have the factual underpinnings from which to make a ruling regarding the propriety of a collateral attack of a prior plea-based conviction.
However, today, with the issue directly before us, we adopt Justice Brickley’s analysis in his concurring opinion in. Crawford, reasoning that only those prior plea convictions taken in violation of Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), should be subject to collateral attack.
Denial of the right to counsel mandated by Gideon is a deprivation of rights altogether different from the issues before us here. The denial of the right to counsel impugns the integrity of the conviction, raising doubts about the guilt of the accused. It is for that reason, and that reason only, that the use of a counselless conviction is forbidden in collateral proceedings notwithstanding that the defendant did not raise the issue on direct review. The requirement of a record waiver of the right to remain silent, to cross-examine witnesses against him, and to be tried by a jury which is required by Boykin-Jaworski, while undoubtedly important, pales beside the right to counsel.
The United States Supreme Court has never forbidden the use of Boykin-violative convictions in state recidivist proceedings. A majority of this Court does so today because Boykin rights are of constitutional stature. Such reasoning begs the question. The right to be free from unreasonable searches, the right to effective assistance of counsel, the right to a properly instructed jury, and countless other rights are also of a constitutional nature. Are we now to assume that all violations of constitutional rights not raised during direct review of a conviction may now be reviewed during habitual offender proceedings? I agree with Justice Stevens, writing for a unanimous Supreme Court in United States v Timmreck, 441 US 780, 784; 99 S Ct 2085; 60 L Ed 2d 634 (1979) (failure to advise defendant of a special parole term as required by F R Crim P 11 cannot be raised collaterally) when he states:
"For the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.
" 'Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice.’ ” [People v Crawford, supra at 615-616.]
We are also in agreement with Justice Brickley’s conclusion:
The adoption by the majority of this rule does nothing to further the interests of finality. Instead of providing incentive for raising claims on direct review where proper relief can be afforded and the error corrected, the majority allows a claim dormant for ten years to be resurrected when the defendant’s tactical considerations so require. [Id. at 616.]
Moreover, we find the reasoning presented by Justice Brickley in Crawford consistent with the reasoning of the Courts in Boykin and Jaworski. Neither Boykin nor Jaworski dealt with collateral attacks. These cases were decided in the context of direct appeals. Boykin and Jaworski provide procedural safeguards for plea proceedings. However, the technical requirements of these procedural safeguards must at some point be balanced with considerations of finality and administrative consequences in order to best achieve proceedings that are consistent with the rudimentary demands of fair procedure. We believe when confronted with collateral attack, such a point is reachéd. See Coleman v Thompson, 501 US —; 111 S Ct 2546, 2564; 115 L Ed 2d 640 (1991); Engle v Isaac, 456 US 107, 126-127 and ns 31-32; 102 S Ct 1558; 71 L Ed 2d 783 (1982).
The procedural safeguards provided for in Boy-kin and Jaworski, and other requirements of plea-taking proceedings, were not intended to broaden the avenues of collateral attacks on prior plea-based convictions. In fact, one of the purposes underlying the decisions in these cases was to provide a procedure that would "forestall[] the spin-off of collateral proceedings that seek to probe murky memories.” Boykin, supra at 244. In Jaworski, the Court, after reaching its holding, went on to note its concern regarding the waste of judicial time spent on direct review of these cases. Although such direct review was held to be warranted by the holding in Jaworski, it is clear that the Court was concerned with the effect considerations of finality and administrative consequences would have on such a holding. The Court, evidencing its concern, said:
In this case, if we were to follow the philosophy that assuring counsel insures understanding pleas, we should dismiss the petition for review — somewhat leaving counsel hoisted on his own petard as far as serving his client. On the other hand, if we should grant relief, we would in effect be passing judgment sub silentio that we could not as a judicial procedure rely on counsel to fully advise a defendant of his rights.
This leaves unspoken a theoretical further alternative, namely a criminal trial as an adversary procedure not only between defendant and prosecutor, but between defendant and the court as well. The implications of this certainly do not comport with this Court’s philosophy of the proper administration of justice. As a consequence, we shall look to counsel in all criminal cases to advise their clients to the best of their ability, and as well or better than the high standard that the State Bar will seek to impose. But further than that this Court, regarding attorneys as officers of the court, will look to them to cooperate with the courts and not only see that their clients are personally well advised by them, but that the court will be assisted to see that all of a client’s rights are protected on the record. An attorney will do this not only in fulfillment of his oath and duty as an attorney, but also because any petition for review that is based on the defendant seeking a plea review on the grounds he did not enter his plea understanding^ is a reflection on both the court and the defendant’s counsel, and incidentally insofar as proper procedure could have avoided the necessity of review, a burden on the administration of justice, and a disservice, if not an injustice, to others who have occasion to employ or operate the machinery of justice. [Id. at 32-33.]
We find that Justice Brickley’s declaration in Crawford represents the legitimate extension of the concerns expressed in Boykin and Jaworski to the situation where a claim of a defective plea proceeding is raised in a collateral attack. This Court has rejected in the past the claim that Boykin and Jaworski provide a remedy for every defendant who makes any attack on the validity of their plea proceeding.
In People v Kuchulan, 390 Mich 701, 704; 213 NW2d 95 (1973), this Court stated that Boykin
should not be read as imposing on the state or Federal courts as an absolute imperative in every case a requirement that a defendant be informed before he pleads guilty of the three constitutional rights mentioned in Justice Douglas’ opinion. . . .
Whether to require that this information be imparted as a precondition to the acceptance of a plea of guilty is a question of policy for this Court to decide, and not one of Federal constitutional law. We agree that a judge should be obliged to so inform a defendant pleading guilty as attested by our votes to adopt amended rule [GCR 1963] 785.3-785.11. We also accept the authority of Jaworski under the doctrine of stare decisis; the individual Justices of this Court, just as the other members of the profession, are bound by its decisions until a majority of the Court adopts a different view.
The rule of a case is, however, frequently less expansive than the reasoning and generalizations in the opinion of the Court. Jaworski, like most cases, was decided in the context of the facts of that case.
Jaworski was not decided in the context of a collateral attack. The concerns involved in collateral attacks are quite different than those on direct appeal and implicate considerations of finality and administrative consequences. We are per suaded that in order to best achieve the legitimate goals of finality and the efficient and effective administration of justice, while also achieving the goals of Boykin and Jaworski, as well as the goals of all applicable plea-taking requirements and procedural safeguards in these cases, we must follow a policy which provides incentive for raising claims on direct review where proper relief can be afforded and error corrected. See McCleskey v Zant, 499 US —, —; 111 S Ct 1454, 1469; 113 L Ed 2d 517 (1991); Engle, supra at 127-129. Such a policy, we find, would do the most to insure the achievement of proceedings that are consistent with the rudimentary demands of fair procedure. While this Court has not previously articulated this distinction between collateral attacks and direct appeals in the application and adoption of the requirements regarding plea-taking proceedings, such a distinction is now properly drawn, when for the first time the specific issue is directly before us. Kuchulan, supra at 704-705.
For the foregoing reasons, we reverse the decision of the Court of Appeals and affirm defendant’s conviction of ouil, third offense.
Brickley, Boyle, Griffin, and Mallett, JJ., concurred with Riley, J.
Collateral attacks encompass those challenges raised other than by initial appeal of the conviction in question.
437 Mich 926 (1991).
See McCleskey v Zant, 499 US —; 111 S Ct 1454, 1468-1469; 113 L Ed 2d 517 (1991); Coleman v Thompson, 501 US —; 111 S Ct 2546, 2563-2565; 115 L Ed 2d 640 (1991); Murray v Carrier, 477 US 478, 487-492; 106 S Ct 2639; 91 L Ed 2d 397 (1986); Engle v Isaac, 456 US 107, 126-128; 102 S Ct 1558; 71 L Ed 2d 783 (1982); Wainwright v Sykes, 433 US 72, 88-89; 97 S Ct 2497; 53 L Ed 2d 594 (1977); Henderson v Kibbe, 431 US 145, 154, n 13; 97 S Ct 1730; 52 L Ed 2d 203 (1977); Stone v Powell, 428 US 465, 491 and n 31; 96 S Ct 3037; 49 L Ed 2d 1067 (1976).
United States v Timmreck, 441 US 780, 784; 99 S Ct 2085; 60 L Ed 2d 634 (1979) ("concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas”).
The United States Supreme Court has never forbidden the use of plea-based convictions alleged or found to be in violation of plea proceeding requirements. We recognize, however, that there has been some case law development in the federal courts recently which may call into question the use of prior plea-based convictions for the purpose of sentence enhancement when such convictions are alleged or found to be in violation of plea proceeding requirements. See, e.g., Dunn v Simmons, 877 F2d 1275 (CA 6, 1989) (the court, through a writ of habeas corpus, found that the State of Kentucky could not prevent a collateral attack on a prior felony conviction when it was used for sentence enhancement. The prior felony conviction was based on a guilty plea that the defendant claimed was in violation of Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 [1969]). But in any event, we realize that the present case is not a sentence enhancement case.
Furthermore, we note that the United States Supreme Court has continued to recognize and emphasize the importance that the considerations of finality and administrative consequences have in assuring the achievement of proceedings that are consistent with the rudimentary demands of fair procedure. See McCleskey, n 3 supra, 111 S Ct 1468-1469 ("we have taken care in our habeas corpus decisions to reconfirm the importance of finality. . . . Finality has special importance in the context of a federal attack on a state conviction”).
See Hill v United States, 368 US 424; 82 S Ct 468; 7 L Ed 2d 417 (1962), and Timmreck, n 4 supra. The Court held in these cases that " collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the [applicable plea-taking requirements].’ ” Timmreck, supra at 785 (citing Hill, supra at 429).
In United States v Broce, 488 US 563, 574; 109 S Ct 757; 102 L Ed 2d 927 (1989), the Court stated that
"[i]t is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not’ be collaterally attacked.” That principle controls here. Respondents have not called into question the voluntary and intelligent character of their pleas, and therefore are not entitled to the collateral relief they seek.
Mr. Ingram does not call into question the voluntary and intelligent character of his prior 61st District Court plea, and therefore he is not entitled to the collateral relief he seeks. See also Timmreck, n 4 supra at 783-784 (where defendant’s only claim is of a technical violation of a procedural rule — a claim that could have been raised on direct appeal — there is no justification for allowing a collateral attack to serve for an appeal).
The strong interest in preserving the finality of judgments, see, e.g., Blackledge v Allison [431 US 63, 83; 97 S Ct 1621; 52 L Ed 2d 136 (1977)] (Powell, J., concurring); Schneckloth v Bustamonte, 412 US 218, 256-266 [93 S Ct 2041; 36 L Ed 2d 854 (1973)] (Powell, J., concurring), as well as the interest in orderly trial procedure, must be overcome before collateral relief can be justified. For a collateral attack may be made many years after the conviction when it may be impossible, as a practical matter, to conduct a retrial. [Henderson, n 3 supra at 154, n 13.]
Passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible. While a [collateral attack] may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution. [Engle, supra at 127-128. See also McCleskey, n 3 supra, 111 S Ct 1468.]
Justice Levin in his separate opinion expressed his concern that with the majority’s resolution of this case there may be seen increasing noncompliance by the courts with procedural rules (post, p 304). To the contrary, we are convinced that our resolution of this case will provide incentive to all parties, including the courts, to see that any claims of improper procedure during the taking of a plea will be immediately raised and addressed at a time when evidence is fresh, proper relief can be afforded, and any error can be corrected. See McCleskey, supra at 1468-1469; Engle, supra at 127-129. Such incentive provides fairness in the law to all parties concerned by promoting the enforcement of procedural safeguards in every case (including those cases in which the defendant, by pleading guilty, is placed on probation, and thus according to Justice Levin in his separate opinion and Chief Justice Cavanagh in his dissent, does not have an incentive to make sure procedural safeguards were provided) and by reducing the costs to society and burdens placed on the judicial system by this type of collateral litigation. Id.
Perpetual disrespect for the finality of convictions disparages the entire criminal justice system.
"A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the underlying substantive commands. . . . There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern but merely anxiety and a desire for immobility.” Bator [Finality in criminal law and federal habeas corpus for state prisoners], 76 Harv L R [441] at 452-453 [1963]. [McCleskey, supra, 111 S Ct 1469.]
The Court of Appeals in the present case did not make a distinction between direct appeals and collateral attacks relying heavily on this Court’s opinion in Yost Citing Yost and its consideration of the conflict among its panels, the Court of Appeals held that failure to adhere to the plea-taking requirements renders the plea-based conviction infirm and thereby precludes its use.
As evidence of this conflict, the Court of Appeals cites for comparison People v Nydam, 165 Mich App 476; 419 NW2d 417 (1987) (concluding that the prior plea-based conviction was not subject to collateral attack), and People v McKinnon, 139 Mich App 362; 362 NW2d 809 (1984) (concluding that the plea-based conviction was rendered infirm for failure to comply with the applicable plea-taking requirements), but its analysis ignores the distinction between collateral attacks and direct appeals. Nydam dealt with a collateral attack of a prior plea-based conviction while McKinnon dealt with a direct appeal of a plea-based conviction. For the reasons stated previously in our analysis, we find that the Court’s holdings in Nydam and Mc-Kinnon are not in conflict. The different conclusions reached by those panels were in response to the different concerns which need to be addressed in a case on collateral attack as opposed to one on direct appeal. | [
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The Supreme Court authorizes the trial court judge, upon a showing of the necessity therefor, to permit the taking of depositions of specifically named individuals in conjunction with the proceedings attendant to the motion for a new trial. In all other respects superintending control is denied. The motion for oral argument is denied as moot. Jurisdiction is not retained.
Brickley, J.
I do not join in the order of the Court inasmuch as I think that an ad hoc substantive grant of authority in a matter pending before the trial court is an inappropriate exercise of this Court’s authority.
I would treat the complaint for superintending control as a calendar case for the purpose of inviting briefs and oral argument on the question whether or not the trial court was correct in concluding that it did not have the authority under the Michigan Court Rules to grant to a party in a criminal case an order to conduct discovery.
Boyle, J.
I join in the order on the understanding that the decision whether to permit the taking of depositions is for the trial judge to make as is the determination regarding whether an adequate justification is made. | [
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] |
The stay granted pursuant to MCR 9.122(C) is to remain in effect until twenty-one days after the effective date of this order.
Levin, J. I would reduce the discipline imposed to a reprimand. | [
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] |
On order of the Court, the complaint for initiation of original proceedings is considered. Pursuant to MCR 7.316(A)(7), we treat the complaint as one for the exercise of this Court’s general superintending control. Const 1963, art 6, § 4. With the complaint so treated, we order as follows:
1. We assign Hon. Harold Hood, presiding, and Hon. T. John Lesinski and Hon. William R. Peterson as judges to serve as a special panel of masters for the purpose specified in this order.
2. Unless the Legislature by January 15, 1992, by a statute approved by the Governor with immediate effect enacts a law adopting a reapportionment plan, we direct this special panel to submit to this Court no later than February 15, 1992, a plan for redistricting and reapportionment of state legislative election districts.
3. Proceedings pursuant to this order shall commence as soon as possible after the issuance of this order. The special panel shall have the powers of a circuit court, and may permit the intervention of other persons or groups.
4. Except as otherwise required by constitution or by law, the criteria to be employed in adopting a plan are those set forth in In re Apportionment of State Legislature — 1982, 413 Mich 96, 141-142 (1982). However, we intimate no opinion with respect to the range of allowable population divergence (see Mahan v Howell, 410 US 315 [1973], and Brown v Thomson, 462 US 835 [1983]), or with respect to the application of the Voting Rights Act (see Thornburg v Gingles, 478 US 30 [1986]).
[Reporter’s Note: By order of January 23, 1992, Hon. William R. Peterson was relieved of his assignment and Hon. William A. Porter was appointed to the special panel of masters.]
5. In the event the Legislature fails to act by January 15, 1992, and it becomes necessary for the special panel to submit a plan, this Court will take such further steps as may be necessary to assure an orderly election.
6. We dismiss the action now pending before the Iosco Circuit Court in Docket No. 91-7870-CZ. | [
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Brickley, J.
This case presents an opportunity for us to determine whether a township has the authority to regulate docking of boats pursuant to the Township Rural Zoning Act (trza). MCL 125.271 et seq.; MSA 5.2963(1) et seq. Contrary to the opinion of the Court of Appeals in Fox & Associates, Inc v Hayes Twp, 162 Mich App 647; 413 NW2d 465 (1987), we find that the trza does in fact vest townships with such authority, and reverse the decision of the trial court, and remand this case for further proceedings consistent with our decision.
i. factual background
On August 30, 1977, Pine Bluff Estates Association filed a petition with the West Bloomfield Charter Township Board for approval of a site plan and for a special use permit for a commonly owned lot, hereinafter referred to as outlot A, within the Pine Bluff Estates Subdivision. The association was seeking to convert this pie-shaped lot which abuts Pine Lake, into a private park and beach for its members’ use. The petition was filed by the association in accordance with the requirements of the West Bloomfield Charter Township Zoning Ordinance. Neither the necessity nor the authority under the zoning ordinance for the special use permit for docking privileges at outlot a has been questioned by the parties.
On April 11, 1978, the planning commission recommended the board approve the site plan and special use permit for outlot a. The commission indicated that the dimensions of outlot a were not in conformance with the requirements of the zoning ordinance regarding subdivision recreational parcels of land with lake frontage; however, it determined that the association should be allowed to improve outlot a as long as any dock constructed on that lot was not used to launch or moor boats.
On June 19, 1978, the board granted the approval for the site plan and special use permit. However, the board, contrary to the recommendation of the commission, allowed two boats to be moored at the dock.
The boat restriction was acceptable to plaintiffs because few of the backlots within the subdivision had been developed at that time. However, on June 12, 1989, after all eleven of the backlots had been developed, the association submitted a petition to amend the special use permit for outlot A to increase mooring capacity of the dock from two to eleven boats. On July 25, 1989, the commission issued a recommendation to the board that the petition filed by the association should be denied because such use would not conform to the re quirements of the West Bloomfield Township Zoning Ordinance. On October 16, 1989, the board adopted the recommendation of the commission and denied the petition, despite being informed of the Court of Appeals decision in Fox, supra, which had held that the trza does not vest authority to regulate docking upon township governmental units.
On November 3, 1989, plaintiffs filed a six-count complaint in the Oakland Circuit Court. Plaintiffs were attempting to have the court invalidate regulation of the docking privileges as exercised by the board with regard to outlot a. The first count, relying upon Fox, supra, asserted the zoning regulation employed by the board was invalid because there was no authority for regulating the docking of boats through the application of a zoning ordinance. Counts ii through vi included: a claim for mandamus to require the board to accept the petition for a variance, a complaint for superintending control to reverse the decision of the board, an appeal from the decision of the board, a claim for inverse condemnation, and an allegation of a violation of 42 USC 1983, respectively.
Plaintiff brought a motion for partial summary disposition with regard to counts i and iv, relying on the decision in Fox. Plaintiffs alleged that there was no question of material fact in this case and that they were entitled to judgment as a matter of law with regard to count i, pursuant to MCR 2.116(0(10). After hearing oral arguments regarding this issue on May 18, 1990, the trial court, relying upon Fox, determined that the board had acted without authority in regulating the mooring of boats at outlot a. The trial court refused to certify the decision as a final order; therefore, defendants filed an interlocutory appeal in the Court of Appeals which was denied on December 20, 1990. Defendants’ application for leave to appeal to this Court was granted. 437 Mich 1047 (1991).
ii
In Square Lake Hills Condominium Ass’n v Bloomfield Twp, 437 Mich 310; 471 NW2d 321 (1991), a majority of this Court, albeit by more than one opinion, determined that townships possess authority to regulate mooring of boats by ordinance, pursuant to the police power provided by the township ordinance act, MCL 41.181 et seq.; MSA 5.45(1) et seq. In this case, however, defendant West Bloomfield Township enacted the relevant zoning provisions in accordance with the statutory requirements of the trza. Therefore, our only consideration is whether the enabling provision of that act vested the township with authority to regulate the construction of a dock and the ability to limit the number of boats that could be moored there.
The enabling provision of the trza states:
The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures; to meet the needs of the state’s citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water,' energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare. For these purposes, the township board may divide the township into districts of such number, shape, and area as it considers best suited to carry out this act. The township board of an organized township may use this act to provide by ordinance for the regulation of land development and the establishment of districts which apply only to land areas and activities which are involved in a special program to achieve specific land management objectives and avert or solve specific land use problems, including the regulation of land development and the establishment of districts in areas subject to damage from flooding or beach erosion, and for that purpose may divide the township into districts of a number, shape, and area considered best suited to accomplish those objectives. [MCL 125.271; MSA 5.2963(1). Emphasis added.]
A
In Fox, supra, the Court of Appeals found the enabling provision of the trza to be limited to regulation of land activities "and does not extend to the regulation of the riparian rights of a landowner, especially when such regulation attempts to limit access to navigable waters or the number of dock slips a riparian landowner may build or possess.” Id. at 652. That case presented a situation in which a proposed condominium development, which had frontage on Lake Charlevoix, was rejected because of nonconformance with the applicable zoning ordinances. The zoning ordinances involved in that case regulated the building of structures along the shoreline and also the amount of dock space which would have been available to the condominium owners. The Court of Appeals held that the Legislature did not intend to allow such zoning regulation to be exercised by townships, pursuant to the trza, because the language within that act was limited to land use or development and did not mention water activity or riparian rights. The panel employed this interpretation of the trza despite a constitutional mandate of liberal construction in favor of the township.
Even with the liberal construction of the provisions of the constitution in mind, we do not believe that the trza grants authority to townships to regulate or limit boat dockage construction or riparian access rights. After consideration of all the applicable rules of statutory construction, we can only conclude that the Legislature, in enacting the trza, granted authority to townships to zone land use but not water use or to regulate riparian rights. [Id. at 656.]
The dissenter opined that the trza should not have been given as narrow an interpretation as that adopted by the majority, especially in light of the constitutional mándate.
In summary, riparian rights are not different from any other rights that arise out of the ownership or an estate in land. Consequently those rights are subject to the regulation and control of the township under the authority of the Township Rural Zoning Act. [Id. at 662.]
We granted leave to appeal in Fox, on March 22, 1988. See 430 Mich 858. Our order granting leave indicated that the limited issue to be addressed was "whether under the Township Rural Zoning Act ... a township has the authority to enact a zoning ordinance which limits boat dockage and funnel development by riparian owners.” That issue was almost identical to the issue before us today, and would likely have eliminated any need for us to review the instant case. However, we vacated our order granting leave to appeal in Fox on July 19, 1989, after the parties agreed to a consent judgment. 432 Mich 932.
B
The trza makes express references to "land development” and "use of land” within its enabling provision without expressly referring to water or riparian rights. However, that provision also does not expressly prohibit the zoning of water-related uses or riparian rights.
The question becomes whether the term "land,” as used in the enabling provision of the trza when "liberally construed” in favor of the township, "fairly implies]” the inclusion of boat dockage. For the reasons that follow we think that it does.
III
Interpretation of the trza is aided by Const 1963, art 7, § 34, which provides:
The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution. [Emphasis added.]
We must employ this constitutional mandate in conjunction with the following statutory rule of construction in our interpretation of the enabling provision of the trza.
MCL 8.3; MSA 2.212, establishes a statutory rule of construction for interpreting certain enumerated terms found within various statutory provisions.
In the construction of the statutes of this state, the rules stated in sections 3a to 3w shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature. [Emphasis added.]
A statutory definition for the term "land” is included within MCL 8.3i; MSA 2.212(9), which provides:
The words "land,” "lands,” "real estate” and "real property” mean lands, tenements and real estate, and all rights thereto and interests therein. [Emphasis added.]
Accordingly, the statutory definition of land within this provision includes all rights and interests which are associated or attached to any piece of real property.
A
Land which includes or is bounded by a natural watercourse is de&ned as riparian. Persons who own an estate or have a possessory interest in riparian land enjoy certain exclusive rights. These include the right to erect and maintain docks along the owner’s shore, and the right to anchor boats permanently off the owner’s shore. [Thies v Howland, 424 Mich 282, 287-288; 380 NW2d 463 (1985). Citations omitted. Emphasis added.]
Outlot a clearly fits the definition of riparian property since it is a piece of land which abuts a natural watercourse, Pine Lake. Riparian rights are derived from and are dependent on ownership of "land” which abuts a natural body of water; thus, they constitute part of the property possessed by riparian landowners and become their property rights. See Square Lake Hills, supra (Cavanagh, C.J., dissenting); Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967).
Therefore, we conclude that the term "land,” as used within the trza, includes those rights or interests that attach to the ownership of land, which extends to riparian rights. Mooring of boats at a dock adjacent to outlot A constitutes an exercise of the riparian rights of the property owners of that piece of property.
B
Including riparian rights within the term "land” as it is used in the trza is not "inconsistent with the manifest intent of the legislature.” The Legislature indicated its intentions in adopting the TRZA.
The zoning ordinance shall be based upon a plan designed to promote the public health, safety, and general welfare; to encourage the use of lands in accordance with their character and adaptability, and to limit the improper use of land; to conserve natural resources and energy; ... to insure that uses of the land shall be situated in appropriate locations and relationships; . . . and to conserve the expenditure of funds for public improvements and services to conform with the most advantageous uses of land, resources, and properties. The zoning ordinance shall be made with reasonable consideration, among other things, to the character of each district; its peculiar suitability for particular uses; the conservation of property values and natural resources; and the general and appropriate trend and character of land, building, and population development. [MCL 125.273; MSA 5.2963(3). Emphasis added.]
This provision was broadly written to permit townships to regulate activities to promote the general welfare of the public and to protect the character and natural resources of a township community. In order to accomplish this goal, the Legislature must have been aware of the importance of riparian rights with regard to the overall use of land. In a state such as Michigan, with its abundant bodies of water, there would be no way to ensure that land uses are compatible with surrounding properties unless water activities are evaluated. Similarly, the conservation of natural resources, which clearly includes water, cannot be undertaken if there is no means for regulating riparian rights. Finally, the stated purpose of the trza is to allow townships to balance the most advantageous uses of the lands, resources, and properties within their boundaries and to create zoning districts and ordinances in accordance with such evaluations. Such a balance could not be achieved if riparian rights are excluded from any zoning control by the township.
Review of the historical development of the trza indicates the Legislature intended the regulatory authority possessed by the townships to encompass more than activities which are located on "dry land.”
The original version of the trza was enacted in 1943 PA 184. The first sentence in the first section of that act provided the authority for townships to designate zoning districts in which they could encourage, regulate, or prohibit certain types of activities or uses of the land within the zoning districts created, i.e., agricultural, forestry, recreational, residential, etc. The remainder of that section addressed regulation of dwellings or structure sizes within the zoning districts created by the township. There was minimal discussion of the authority of townships to control land development within the several zoning classifications. In 1978, the Legislature drastically amended this crucial provision of the trza to address and correct the inadequacy of the prior version.
An indication of the legislative concern for the environment is apparent from the clause that was added to MCL 125.271; MSA 5.2963(1) in 1978, providing that townships shall have the authority to enact zoning ordinances to "promote public health, safety, and welfare.” This indicates that a much broader grant of authority was intended by the Legislature when it amended the trza in 1978. Additionally, the constitution states that conservation and protection of natural resources shall constitute a paramount concern in the interest of the health, safety, and general welfare of the people of the State of Michigan.
The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction. [Const 1963, art 4, § 52. Emphasis added.]
Thus, by granting townships the authority to promote the public health, safety, and general welfare through enactment of zoning ordinances, the Legislature was complying with this constitutional mandate to protect the environment, including bodies of water, from impairment or destruction.
In order for townships to properly protect the bodies of water from destruction or impairment, pursuant to their zoning power within the trza, there must be an ability to regulate the exercise of riparian rights. To prohibit townships from exercising such regulatory zoning authority over riparian rights would permit the destruction or impairment of the natural resources associated with such bodies of water. To construe the trza in the manner asserted by plaintiffs, and the Court of Appeals majority in Fox, supra, would essentially prohibit townships from protecting the natural resources located within their communities that happen to be associated with bodies of water. This clearly could not have been the intention of the Legislature when it expanded the powers of the townships to regulate land development and to promote the public health, safety, and welfare, pursuant to the zoning authority of the trza. Therefore, our reading of the trza is not only not "inconsistent with the minifest intent of the legislature,” it is manifestly consistent with it.
IV. CONCLUSION
We conclude that the trza permits townships to regulate riparian rights, such as dockage of boats, as part of their zoning power. This interpretation is consistent with the underlying purpose of the enactment of the trza and its subsequent amendment, and is appropriate in light of the constitutionally mandated liberal construction. We reverse the trial court’s grant of summary disposition and remand for further proceedings consistent with this opinion.
Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.
The association represents all twenty-two lot owners within the subdivision. The individual plaintiffs involved in this case are only the backlot owners of the subdivision.
Site plan approval of outlot a was required pursuant to the then existing West Bloomfield Township Zoning Ordinance. That provision provides:
The following uses may be permitted in an R-10, R-12.5 and R-15 one-family residential disfrict añer review and approval of the site plan by the planning commission and provided that the planning commission finds that the use would not be incompatible with already existing uses in the area or would not interfere with orderly development of the area and will not be detrimental to the safety or convenience of vehicular or pedestrian trafiic, subject to the conditions imposed for each use, and subject to final approval by the township board:
(4) Land may be used for privately owned and operated parks, picnic groves or similar facilities for outdoor recreation . which may not be operated for profit; provided, that such use does not impair the natural appearance of such land or tend to produce unreasonable noise or annoyance to surrounding properties, and provided further that no use shall be made of any open land or water for boat liveries or commercial bathing beaches. [Section 26-73. Emphasis added.]
The special use permit was required for outlot A, pursuant to the zoning ordinance, since it only had fifty-eight feet of frontage on Pine Lake and docking privileges were desired.
Where a parcel of land contiguous to a body of water is presented for subdividing, a recreational park bordering on the body of water may be dedicated for the purposes of swimming and picnicking, the privileges of which are to be reasonably enjoyed by the owners and occupants of lots included in any plat or plats recorded within the parcel and only such owners and occupants provided that the recreational park is dedicated at the time for the use of owners and occupants of lots contained in such a recorded plat or plats at least twenty (20) lineal feet of water frontage and one hundred fifty (150) feet in depth shall be reserved therein for the rights of each lot of the size required by this chapter; provided, however, that no recreational park so created shall have less than three hundred (300) feet of water frontage. The launching of boats from recreational parks shall not be permitted nor shall boats be allowed to be docked at recreational parks. [Section 26-78. Emphasis added.]
The format of the township zoning ordinance was changed on June 21, 1982; however, the language of the relevant zoning ordinance provisions was not altered.
The commission also made an analysis of the need for a wetland permit to be obtained by the association. This issue is no longer relevant since the dock which was eventually created was fifty feet in length, which falls within an exemption to the wetland ordinance requirement.
The special use permit did not affect the ability of the eleven lots with frontage upon Pine Lake to moor boats at their own docks.
In light of the court’s granting summary disposition with regard to count i, both parties stipulated that the issue raised in count iv was moot. Accordingly, that issue is not presented for review by this Court. Additionally, we do not address the validity of the other counts raised in plaintiff’s complaint because they were not raised on appeal in this Court.
The plaintiffs alleged preemption by the actions of the Department of Natural Resources, for the first time, in their responsive brief filed with the Court' of Appeals. That issue was not preserved for review by this Court because it was not raised in the trial court. See Napier v Jacobs, 429 Mich 222; 414 NW2d 862 (1987).
We note that each member of the association is considered to possess an undivided 1/22 ownership interest in outlot a. This interest is not severable or alienable from the ownership of the primary lot within the subdivision, therefore we consider the undivided 1/22 interest ownership of outlot A sufficient to permit the relevant riparian rights to attach to each member.
The amended version has remained unaltered since it was adopted in 1978 PA 637 and is currently compiled at MCL 125.271; MSA 5.2963(1). | [
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Griffin, J.
We granted leave to consider the applicability in these consolidated cases of the "economic loss doctrine,” which bars tort recovery and limits remedies to those available under the Uniform Commercial Code where a claim for damages arises out of the commercial sale of goods and losses incurred are purely economic. If plaintiffs in these cases are limited by the doctrine to a warranty action governed by the ucc and its four- year statute of limitations, which recognizes no discovery rule, their claims are time-barred.
The courts below so held. Upon review we agree and affirm the decisions of the Court of Appeals.
i
The facts and procedural background of these cases are very similar. Indeed, both were brought in the Mecosta Circuit Court and were considered by the same circuit judge. With supplementation to be provided in the course of our analysis, we borrow from the concise statement of facts set forth in each case by the Court of Appeals.
NEIBARGER V UNIVERSAL COOPERATIVES, INC
Plaintiffs, owners and operators of a dairy farm, contracted with defendant Charles Brinker to install a milking system. According to plaintiffs, the milking system was designed by defendants Universal Cooperatives, Inc., and Brinker, and was installed by Brinker to begin milking operations on September 1, 1979.
Plaintiffs allege that, after the milking system had been in operation for a period of time, their cattle became ill and died or had to be sold for beef because of their nonproductivity and unsuitability as milking animals, suffered a loss of milk production, had severe instances of mastitis, and experienced a loss of a portion of their udders. Consequently, plaintiffs claim, they were prevented from reaching their herd potential.
Plaintiffs alleged that it was not until fall of 1986 that they discovered that the entire vacuum system on the milking equipment had been improperly designed and installed. Plaintiffs brought suit against defendants on April 13, 1987, and proceeded against them on three theories: breach of express warranty, breach of implied warranty, and negligence. [181 Mich App 794, 796; 450 NW2d 88 (1989).]
After some discovery, defendants filed motions for summary disposition, arguing that because plaintiffs’ claim arose from the commercial sale of goods and they sought only economic damages, their exclusive remedy was a breach of warranty action under Article 2 of the ucc. Further, defendants contended that such an action was barred in this case by the code’s four-year limitation period, which begins running "when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.” MCL 440.2725(2); MSA 19.2725(2).
Plaintiffs, on the other hand, preferred the three-year statute of limitations for product liability actions set forth in the Revised Judicature Act, MCL 600.5805(9); MSA 27A.5805(9), arguing that it would not begin to run until the cause of the action was discovered, or reasonably should have been discovered. Concluding that the ucc controlled and that its limitation period had expired before the complaint was filed, the trial court granted summary disposition for defendants. Plaintiffs appealed, and the Court of Appeals affirmed. After finding that the transaction involved was "a sale of goods with services incidentally involved,” and the damages sought "consisted solely of economic loss,” the Court concluded that "plaintiffs’ remedies fall within the ucc, with its attendant four-year period of limitation, which began to run at the time of delivery.” Id. at 802.
HOUGHTON v ALFA-LAVAL, INC
Plaintiffs, owners and operators of a dairy farm, purchased a milking machine system in July, 1976, from defendant Alfa-Laval, Inc. It was installed according to Alfa-Laval’s design and instructions by its agent, defendant Howard’s Dairy System, Inc.
Plaintiffs represent that they purchased the system in the hopes of increasing milk production. Milk production, however, did not increase despite numerous service calls from Howard’s and advice and inspections from several milk production agencies and nutritionists. The cattle in plaintiffs’ herd began to experience severe instances of mastitis, losses of a quarter of their udders and decreased milk production. Some of the herd became so sick that they died or were sold off for beef due to nonproductivity. Another problem plaintiffs discovered following the installation of the new system was an unacceptably high cell and bacteria count in the milk. Plaintiffs also claim that, due to faulty wiring, stray voltage would enter the system and injure the cattle and that there were problems with the system’s cooling and vacuum systems.
Plaintiffs allege that it was not until some time in 1984 that they were able to pinpoint their problems as stemming from the improper installation of the machine’s washing system. Plaintiffs thereupon filed suit against defendants alleging negligence in design, installation and maintenance of the system and breach of express and implied warranties. [184 Mich App 731, 732-733; 459 NW2d 42 (1990).]
As in Neibarger, and for similar reasons, the trial court granted defendants’ motion for sum mary disposition. The Court of Appeals affirmed, concluding that plaintiffs’ remedies "laid exclusively within the ucc and were subject to the four-year limitation period which began running upon delivery of the milking system in 1976.” Id. at 734.
We granted leave to appeal in both cases to consider the applicability of the economic loss doctrine as well as the proper limitation period. 437 Mich 928 (1991).
II
Michigan adopted the Uniform Commercial Code with the passage of 1962 PA 174, effective January 1, 1964. The stated purposes of the code are "(a) to simplify, clarify and modernize the law governing commercial transactions; (b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties; [and] (c) to make uniform the law among the various jurisdictions.”
To achieve these goals, Article 2 of the code governs the relationship between the parties involved in "transactions in goods.” Under Article 2, a sale of goods is accompanied by the implied warranties of merchantability and fitness and an express warranty may be created by negotiation or by the conduct of the seller. Thus, under the code, the purchaser of defective goods may recover the benefit of the bargain (the difference between the value of the goods as delivered and the value the goods would have had they complied with the warranty) as well as incidental and consequential damages in a proper case. An action to recover for breach of warranty under the ucc must be commenced within four years of tender of delivery of the goods, regardless of the time of discovery of the breach.
Since the plaintiffs’ claims in each of these cases arose out of a sale of goods governed by the ucc, we must determine whether the consequences of its strict limitation period may be avoided by pleading claims sounding in tort. Where, as here, the claims arise from a commercial transaction in goods and the plaintiff suffers only economic loss, our answer is "no” — such claims are barred by the economic loss doctrine. This position is consistent with a considerable body of law that has developed in this state as well as a majority of other jurisdictions.
The economic loss doctrine, simply stated, provides that " '[w]here a purchaser’s expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only "economic” losses.’ ” This doctrine hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commer cial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts.
This distinction stems from the separate and sometimes conflicting purposes of tort and contract law, as explained by the Supreme Court of New Jersey in Spring Motors Distributors, Inc v Ford Motor Co, 98 NJ 555, 579-580; 489 A2d 660 (1985):
The purpose of a tort duty of care is to protect society’s interest in freedom from harm, i.e., the duty arises from policy considerations formed without reference to any agreement between the parties. A contractual duty, by comparison, arises from society’s interest in the performance of promises. Generally speaking, tort principles, such as negligence, are better suited for resolving claims involving unanticipated physical injury, particularly those arising out of an accident. Contract principles, on the other hand, are generally more appropriate for determining claims for consequential damage that the parties have, or could have, addressed in their agreement.[ ]
This distinction was also recognized by the court in Miller v United States Steel Corp, 902 F2d 573, 574 (CA 7, 1990), where Judge Posner explained that the term “economic loss” may be a misnomer:
It would be better to call it a "commercial loss,” not only because personal injuries and especially property losses are economic losses, too — they destroy values which can be and are monetized — but also, and more important, because tort law is a superfluous and inapt tool for resolving purely commercial disputes. We have a body of law designed for such disputes. It is called contract law. Products liability law has evolved into a specialized branch of tort law for use in cases in which a defective product caused, not the usual commercial loss, but a personal injury to a consumer or bystander.
In Parish v BF Goodrich Co, 395 Mich 271, 278; 235 NW2d 570 (1975), Justice Levin alluded to this distinction in explaining the reasons for not applying the ucc (and its statute of limitations) in personal injury cases:
The provisions of ucc §2-725 (a warranty is breached upon tender of delivery), while entirely satisfactory in a commercial setting, are inconsistent with principles developed by the courts in consumer actions against manufacturers for personal injury. While most business losses attributable to a defective product will surface during the four-year period prescribed by § 2-725, consumers often suffer personal injury after a longer period of time has elapsed.
According to Justice Levin, the distinction stems from the bases of tort and contract liability:
Section 2-725 concerns, if not only, primarily claims based on an agreement of the parties to the litigation — including actions based on warranties implied from or in respect of their agreement.
The product liability of a manufacturer, not in direct dealing with the consumer, has, in contrast, been imposed by the courts with little or no regard- to whether there is an agreement between the parties and in the face of attempts by some manufacturers to disclaim liability in recitals accompanying the product into the market place. [Id. at 279-280.]
As developed by the courts, then, the individual consumer’s tort remedy for products liability is not premised upon an agreement between the parties, but derives either from a duty imposed by law or from policy considerations which allocate the risk of dangerous and unsafe products to the manufacturer and seller rather than the consumer. Such a policy serves to encourage the design and production of safe products.
On the other hand, in a commercial transaction, the parties to a sale of goods have the opportunity to negotiate the terms and specifications, including warranties, disclaimers, and limitation of remedies. Where a product proves to be faulty after the parties have contracted for sale and the only losses are economic, the policy considerations supporting products liability in tort fail to serve the purpose of encouraging the design and production of safer products.
III
Heretofore, this Court has not explicitly addressed the economic loss doctrine. However, dur ing the past dozen years our Court of Appeals and the federal courts applying Michigan law have regularly invoked the economic loss doctrine in appropriate cases where conflict arises from the disparate goals of tort and contract law. In McGhee v General Motors Corp, 98 Mich App 495, 505; 296 NW2d 286 (1980), the first such decision, the Court adopted the rationale expressed in SM Wilson & Co v Smith Int’l, Inc, 587 F2d 1363, 1376 (CA 9, 1978):
Where the suit is between a nonperforming seller and an aggrieved buyer and the injury consists of damage to the goods themselves and the costs of repair of such damage or a loss of profits that the deal had been expected to yield to the buyer, it would be sensible to limit the buyer’s rights to those provided by the Uniform Commercial Code. To treat such a breach as an accident is to confuse disappointment with disaster. Whether the complaint is cast in terms of strict liability in tort or negligence should make no difference. [Citations omitted.]
Since McGhee, the validity of this approach has been recognized in virtually every published opinion applying Michigan law to the issue of economic loss stemming from a commercial sale of goods. In A C Hoyle Co v Sperry Rand Corp, 128 Mich App 557, 561-562; 304 NW2d 326 (1983), the Court affirmed the dismissal of the plaintiff’s claim of negligence in the design, manufacture, and delivery of hydraulic motors to be installed on oil tankers, holding that none of the policies supporting products liability law ”would be served in the instant case, which involves contracting parties of relatively equal economic strength who, in a commercial setting, bargain for the specifications of the product.” The doctrine was also applied in Great American Ins Co v Paty’s, Inc, 154 Mich App 634; 397 NW2d 853 (1986), where a farmer sought to recover for damage to a combine which was destroyed by fire, and in Rust-Pruf Corp v Ford Motor Co, 172 Mich App 58, 62; 431 NW2d 245 (1988), where the plaintiff’s tort claim was barred because of an express warranty and lack of any injury other than economic loss. Most recently, in Sullivan Industries, Inc v Double Seal Glass Co, Inc, 192 Mich App 333, 344; 480 NW2d 623 (1991), the Court held that "[a]llegations of only economic loss do not implicate tort law concerns with product safety, but do implicate commercial law concerns with economic expectations.”
Even where the Court of Appeals refused to apply the economic loss doctrine to bar a plaintiff’s claim, in Auto-Owners Ins Co v Chrysler Corp, 129 Mich App 38, 42; 341 NW2d 223 (1983), the Court implicitly recognized the rationale supporting the doctrine, holding only that it "fails when there is no contractual relationship between the parties.” In a strong dissent, Chief Judge Danhof stated his belief that "plaintiff’s negligence claim should be barred for the reasons stated in McGhee, supra.” 129 Mich App 44. His dissent was later adopted by the Court in Sullivan, supra at 339.
This development in the jurisprudence of our state has been recognized by federal courts applying Michigan law. In Sylla v Massey-Ferguson, Inc, 660 F Supp 1044, 1046 (ED Mich, 1984), Judge Harvey explained that "when a plaintiff seeks to impose liability for economic losses only, tort law concerns with product safety no longer apply, and commercial law concerns with economic expectations must govern.” A similar result was achieved in Consumers Power Co v Mississippi Valley Structural Steel Co, 636 F Supp 1100, 1105 (ED Mich, 1986), where Judge Joiner noted:
[T]he tort doctrine of products liability is based on the policy of allocating the risk of dangerous or unsafe products to the manufacturer rather than the consumer. Where all parties involved . . . are commercial businesses, this rationale disappears. Placing the burden of the loss on any particular business will only result in that business raising its prices to pass these costs along to consumers. The courts should have no role in deciding which business should raise its prices, especially in light of the parties’ ability to allocate those risks among themselves.
The economic loss doctrine was also applied in Frey Dairy v A O Smith Harvestore Products, Inc, 680 F Supp 253 (ED Mich, 1988), aff’d 886 F2d 128 (CA 6, 1989), where Judge Cohn applied the reasoning of the McGhee panel in a case in which the plaintiffs sought recovery for reduced milk production and lost profits allegedly caused by defective silos. Noting that the plaintiffs waited almost six years before filing suit, he held that "summary judgment must be granted to both defendants on the grounds that the expiration of the statute of limitations bars the warranty claims and the economic loss doctrine bars the tort claims . . . .” 680 F Supp 256.
The reasoning of these courts comports with the reasoning of courts in the majority of jurisdictions which have adopted the economic loss doctrine. In the decision generally regarded as the genesis of the doctrine, Seely v White Motor Co, 63 Cal 2d 9, 18; 45 Cal Rptr 17; 403 P2d 145 (1965), the California Supreme Court stated its rationale for barring a tort recovery for economic loss:
A consumer should not be charged at the will of the manufacturer with bearing the risk of physical injury when he buys a product on the market. He can, however, be fairly charged with the risk that the product will not match his economic expectations unless the manufacturer agrees that it will. Even in actions for negligence, a manufacturer’s liability is limited to damages for physical injuries and there is no recovery for economic loss alone.
More recently, in East River Steamship Corp v Transamerica Delaval Inc, 476 US 858, 868; 106 S Ct 2295; 90 L Ed 2d 865 (1986), the Supreme Court explained that in cases such as those before us, "the injury suffered — the failure of the product to function properly — is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain.”
IV
We are convinced that the reasoning of those courts which have adopted the economic loss doctrine compels a similar conclusion on our part. In the absence of legislative direction, we believe such a rule is required to guide trial courts facing cases such as those before us which lie at the intersection of tort and contract. Accordingly, we hold that where a plaintiff seeks to recover for economic loss caused by a defective product purchased for commercial purposes, the exclusive remedy is provided by the ucc, including its statute of limitations.
A contrary holding would not only serve to blur the distinction between tort and contract, but would undermine the purpose of the Legislature in adopting the ucc. The code represents a carefully considered approach to governing "the economic relations between suppliers and consumers of goods.” If a commercial purchaser were allowed to sue in tort to recover economic loss, the ucc provisions designed to govern such disputes, which allow limitation or elimination of warranties and consequential damages, require notice to the seller, and limit the time in which such a suit must be filed, could be entirely avoided. In that event, Article 2 would be rendered meaningless and, as stated by the Supreme Court in East River, supra at 866, "contract law would drown in a sea of tort.”
Rejection of the economic loss doctrine would, in effect, create a remedy not contemplated by the Legislature when it adopted the ucc by permitting a potentially large recovery in tort for what may be a minor defect in quality. On the other hand, adoption of the economic loss doctrine will allow sellers to predict with greater certainty their potential liability for product failure and to incorporate those predictions into the price or terms of the sale.
Adoption of the economic loss doctrine is consistent with the stated purposes of the ucc. The availability of a tort action for economic loss would "only add more confusion in an area already plagued with overlapping and conflicting theories of recovery,” while preclusion of such actions will lead to the simplification, clarification, and modernization of commercial law called for by § 1-102(2)(a). Moreover, because a majority of other jurisdictions have adopted the economic loss doctrine, our decision here will promote the uniformity called for in § 1-102(2)(c).
In the cases before us, plaintiffs argue that their claims fall within the class of products liability actions defined in MCL 600.2945; MSA 27A.2945, and that the proper statutes of limitation and accrual are those provided by the Revised Judicature Act, MCL 600.5805(9); MSA 27A.5805(9) and MCL 600.5833; MSA 27A.5833. We disagree for the reasons stated above. Application of the rja to the cases before us would effectively negate Article 2 of the ucc; application of the economic loss doctrine ensures that the ucc will remain effective in governing commercial disputes, while the rja serves to govern noncommercial products liability actions.
v
Having decided that the ucc and the economic loss doctrine reflect the proper approach for reso lution of defective product claims in the commercial arena, we now turn to application of that doctrine to the cases before us. In the Court of Appeals, the plaintiffs argued that the economic loss doctrine does not bar their claims because they are asserting damage to property other than the goods themselves. Although there is support for the view that the ucc does not bar a tort claim where the plaintiffs are seeking to recover for property other than the product itself, we find in these cases that, notwithstanding injury to the plaintiffs’ dairy herds, the damages claimed are economic losses.
At one end of the spectrum, the economic loss doctrine has been interpreted as permitting recovery in tort for injury to property other than the defective product itself. Nat’l Union Fire Ins Co of Pittsburgh v Pratt & Whitney Canada, Inc, 107 Nev 535; 815 P2d 601 (1991); Kershaw Co Bd of Ed v United States Gypsum Co, 302 SC 390; 396 SE2d 369 (1990). Other courts have allowed tort recovery for physical damage to the product itself caused by a defect which is not merely a "disappointment,” but also a safety hazard, Russell v Ford Motor Co, 281 Or 587; 575 P2d 1383 (1978), or which results from a "calamitous” event. Star Furniture Co v Pulaski Furniture Co, 171 W Va 79; 297 SE2d 854 (1982).
In a case factually similar to those before us, Agristor Leasing v Spindler, 656 F Supp 653, 654 (D SD, 1987), the court found that damage to a dairy herd constituted economic loss rather than property damage where the purchasers of a feed storage system alleged that it was negligently designed and manufactured. The plaintiffs claimed that the defective product spoiled the feed it contained and resulted in "their dairy herd suffering medically and reproductively, milk production dropping and, ultimately, lost income.” Finding that the plaintiffs were merely seeking "to recover the resulting losses to their dairy farm due to the Harvestore silo failing to perform as expected,” id. at 658, the court characterized the injuries as economic loss and denied recovery in tort.
We agree. The proper approach requires consideration of the underlying policies of tort and contract law as well as the nature of the damages. The essence of a warranty action under the ucc is that the product was not of the quality expected by the buyer or promised by the seller. The standard of quality must be defined by the purpose of the product, the uses for which it was intended, and the agreement of the parties. In many cases, failure of the product to perform as expected will necessarily cause damage to other property; such damage is often not beyond the contemplation of the parties to the agreement. Damage to property, where it is the result of a commercial transaction otherwise within the ambit of the ucc, should not preclude application of the economic loss doctrine where such property damage necessarily results from the delivery of a product of poor quality.
In Hapka v Paquin Farms, 458 NW2d 683, 688 (Minn, 1990), the Supreme Court of Minnesota opined that "[t]he steady stream of litigation attempting to qualify for the exceptional treatment of damage to other property has convinced us that the exception represents a retreat to the common law in derogation of the essence of the Uniform Commercial Code: a complete and independent statutory scheme enacted for the governance of all commercial transactions.” We agree with this analysis, noting, as did the Hapka court, that the ucc provides remedies sufficient to compensate the buyer of a defective product for direct, incidental, and consequential losses, including property damage. MCL 440.2714; MSA 19.2714, MCL 440.2715; MSA 19.2715. Where damage to other property was caused by the failure of a product purchased for commercial purposes to perform as expected, and this damage was within the contemplation of the parties to the agreement, the occurrence of such damage could have been the subject of negotiations between the parties.
In the two. cases before us, a review of the pleadings and depositions reveals that the damages sought by the plaintiffs are commercial losses which can be remedied only under, the provisions of the ucc.
The physical damage to property alleged by the plaintiffs includes instances of mastitis and other illnesses that allegedly caused the death of some cattle or necessitated culling them from the herd and selling them for beef. However, in his deposition, plaintiff Darwin Neibarger testified that mastitis is a common problem for dairy farmers. Plaintiff Charles Houghton testified that mastitis could occur even where the cows were milked by hand, and his testimony reveals that he was aware that mastitis could be caused by the milking system. Deposition testimony also reveals that culling the cows was a normal part of the dairy business, and that the Houghtons would replace as many as twenty-five percent of their cows every year. Houghton, in fact, testified that he anticipated problems with the new system because some cows would not adapt to the new system and would have to be replaced:
Viewing the complaints in light of this testimony, it is apparent that the damages suffered by the plaintiffs are properly considered to be economic loss, the result of a defect in the quality of the milking systems they purchased. The plaintiffs made business decisions to purchase new milking systems, hoping, as Charles Houghton and Darwin Neibarger testified, to expand the size of their herds and, we presume, thereby increase their incomes. Their commercial expectations were not met, however, and they experienced decreases in milk production and medical problems. Their complaints were properly viewed by the courts below as attempts to recover for lost profits and consequential damages, losses which are compensable under the ucc. Thus, these actions fall squarely within the economic loss doctrine and are governed by the provisions of the ucc, including its four-year statute of limitations.
VI
Plaintiffs also argue that the ucc does not apply to these cases because they are seeking to recover for injuries caused by the services provided by the defendants, rather than for any defect in the products provided by the defendants. If such is the case, their injuries did not arise out of a "transaction in goods” and thus are not governed by the ucc. MCL 440.2102; MSA 19.2102.
In both cases, the Court of Appeals applied the test expressed in Bonebrake v Cox, 499 F2d 951, 960 (CA 8, 1974), to determine whether contracts for mixed goods and services are governed by the code:
The test for inclusion or exclusion is not whether they are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved ... or is a transaction of sale, with labor incidentally involved ....
Applying this test, the Court of Appeals found that the transactions in question were sales of goods, governed by the ucc.
We agree. The Bonebrake test represents the view of the majority of jurisdictions which have considered the issue. It is also the most logical approach, one which allows Article 2 to fulfill its purpose of governing the relationships between buyers and sellers of goods in the commercial arena.
As the Court of Appeals noted, some courts have divided a transaction between the parties into its components of goods and services and allowed a claim outside the ucc where the complaint sought recovery for injuries caused by the services provided by the defendant. For example, in H Hirschfield Sons Co v Colt Industries Operating Corp, 107 Mich App 720; 309 NW2d 714 (1981), the plaintiffs sought to recover for injuries caused by the manner in which an in-ground railroad and truck scale was installed. The Court of Appeals, in a decision which it limited to the narrow set of facts before it, found that the action was not governed by the ucc "because plaintiff’s claim is based entirely on deficiencies in the rendition of services for which the contract contained a separate price rather than on any defect in the goods themselves.” Id. at 727. In reaching this decision, the Hirschfield Court relied on the opinion in Dixie Lime & Stone Co v Wiggins Scale Co, 144 Ga App 145; 240 SE2d 323 (1977), a factually similar case in which the court explained that "[t]here is no claim that the scale itself is defective. The agreement underlying this suit was one for the furnishing of services and labor, and the ucc is clearly inapplicable.” Id.
The two decisions referred to do not persuade us that the transactions at issue here were primarily for services rather than goods. In both cases, the contracts included separate prices for products and installation. In the cases now before us, however, the purchase agreements included no mention of installation or service, nor was any separate price stated for installation or service. The services that were provided, then, must be viewed as "incidental” to the contract for the purchase of a milking system.
We prefer the approach that is illustrated by those cases in which courts have examined the overall thrust of the dealings between the parties to determine the character of the transaction. In one such case, Care Display, Inc v Didde-Glaser, Inc, 225 Kan 232; 589 P2d 599 (1979), the Supreme Court of Kansas considered an oral contract for the design and construction of a display booth to be used in a trade show. The court, examining the overall purpose of the dealings between the parties, found that "the construction, transportation and installation of the display booth was a part of the contract between the parties but the major objective contemplated utilizing the knowledge and expertise of Care Display to create a unique setting in which to exhibit and promote to best advantage the products of Didde-Glaser.” Id. at 239.
In Republic Steel Corp v Pennsylvania Engineering Corp, 785 F2d 174 (CA 7, 1986), the court employed a similar approach in examining the character of an agreement for the design, sale, and installation of two steel furnaces. In that case, the court, noting "Illinois law underscoring the broad coverage of the ucc and emphasizing the need for uniformity in commercial transactions,” id. at 181, held that the fact that design, engineering and purchase agency services were a substantial part of the contract was not sufficient to preclude application of the ucc and its statute of limitations. Applying the Bonebrake test, the court held that "the predominant character of the Agreement . . . was that of a contract for the sale of goods, not for the rendition of services.” Id. at 184.
The same approach is proper in these cases. It is difficult to imagine a commercial product which does not require some type of service prior to its purchase, whether design, assembly, installation, or manufacture. If a purchaser were able to avoid the ucc by pleading negligent execution of one of the services required to produce the product, Article 2 could be easily and effectively negated. A court faced with this issue should examine the purpose of the dealings between the parties. If the purchaser’s ultimate goal is to acquire a product, the contract should be considered a transaction in goods, even though service is incidentally required. Conversely, if the purchaser’s ultimate goal is to procure a service, the contract is not governed by the ucc, even though goods are incidentally required in the provision of this service.
In these cases, the thrust or purpose of the plaintiffs’ contracts with the defendants was not the provision of defendants’ design or installation services; rather, the plaintiffs intended to acquire goods, i.e., milking systems that incidentally required design and installation services. This conclusion is supported by the deposition testimony of plaintiffs Darwin Neibarger and Charles Houghton. Neibarger testified that he "bought the system complete” and hoped "just to go to the barn and turn it on and everything worked.” Houghton viewed the transaction as a purchase of a product as well, testifying that defendant Howard was to install a milking system which he purchased, at least in part, because "it looked like a good machine.” It thus appears from the testimony of the plaintiffs that their goals were to purchase milking systems; whatever design or installation services the systems required were incidental to those goals.
Plaintiffs’ attempts to avoid application of the ucc by arguing that there was no defect in the product, but that it was poorly designed or installed, are to no avail. At the heart of the complaints in these cases is the fact that the plaintiffs purchased products which proved inadequate for their purposes, causing them lost profits and, perhaps, consequential losses or property damage compensable in a timely suit under the provisions of the ucc.
VII
Since the damages sought in these cases are economic losses resulting from the commercial sale of goods, the plaintiffs’ exclusive remedies are provided by the ucc. Because proceedings in each case were not commenced within the four-year period provided by MCL 440.2725; MSA 19.2725, the actions are time-barred. Accordingly, in each case, we affirm the decision of the Court of Appeals.
Brickley, Riley, and Mallett, JJ., concurred with Griffin, J.
MCL 440.1101 et seq.; MSA 19.1101 et seq.
Although the Neibarger case was originally filed in Montcalm County, the parties agreed to and requested a change of venue, which was ordered.
Honorable Lawrence C. Root.
MCL 440.2101 et seq.; MSA 19.2101 et seq.
Plaintiffs also pointed to MCL 600.5833; MSA 27A.5833, which provides that "[i]n actions for damages based on breach of a warranty of quality or fitness the claim accrues at the time the breach of the warranty is discovered or reasonably should be discovered.”
1962 PA 174, § 9991.
MCL 440.1102(2); MSA 19.1102(2).
MCL 440.2102; MSA 19.2102.
MCL 440.2314; MSA 19.2314.
MCL 440.2315; MSA 19.2315:
MCL 440.2313; MSA 19.2313.
MCL 440.2725; MSA 19.2725.
MCL 440.2715; MSA 19.2715.
MCL 440.2725; MSA 19.2725.
Wade, Tort liability for products causing physical injury and Article 2 of the UCC, 48 Mo L R 1, 26, n 87 (1983): "Although there is some disagreement on the matter, the substantial majority rule has come to be . . . that economic loss deriving from a failure of the product to perform in accordance with the implied warranties is not actionable in tort, whether negligence or strict liability.” See also 63A Am Jur 2d, Products Liability, § 970, p 118.
Kershaw Co Bd of Ed v United States Gypsum Co, 302 SC 390, 393; 396 SE2d 369 (1990), quoting Kennedy v Columbia Lumber & Mfg Co, 299 SC 335, 345; 384 SE2d 730 (1989).
See Clark v Int’l Harvester Co, 99 Idaho 326, 335; 581 P2d 784 (1978), Waggoner v Town & Country Mobile Homes, Inc, 808 P2d 649, 653 (Okla, 1990).
See also Wade, n 15 supra, p 24:
Contract law protects the expectation interest. It seeks to place the plaintiff in the position he would have been in if the defendant had not broken the contract. Tort law has as its gravamen the restoring of the plaintiff to the position he had been in before the defendant’s wrongful conduct injured him. The details and ramifications of the two sets of laws were developed in the light of the primary purpose of each.
See however, Ebers v General Chemical Co, 310 Mich 261, 275; 17 NW2d 176 (1945), where this Court allowed tort recovery to a plaintiff who pled breach of warranty. We said the real issue was "whether or not [the manufacturer] was negligent” in selling an inadequately tested insecticide which damaged the plaintiff’s fruit trees. In Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120; 90 NW2d 873 (1958), the plaintiff was awarded damages from the manufacturer of defective cinder blocks used in the construction of the plaintiff’s resort cottages. Both cases were decided before adoption by this state of the ucc.
More recently, in Southgate Community School Dist v West Side Construction Co, 399 Mich 72; 247 NW2d 884 (1976), a decision that focused on privity, the plaintiff recovered in tort from a remote manufacturer for what appeared to be economic loss. To the extent that Southgate may read as rejecting the economic loss doctrine, it is today modified.
On appeal of Frey Dairy, the United States Court of Appeals for the Sixth Circuit certified the following question to this Court: "Under Michigan law, does the economic loss doctrine operate to bar tort claims sounding in negligence and gross negligence where the foundation of the parties’ relationship is contractual and the only losses alleged are economic losses?” After we declined to address the question, 432 Mich 1240 (1989), the court decided the case on different grounds. 886 F2d 131.
See Spring Motors Distributors, Inc v Ford Motor Co, supra.
Moorman Mfg Co v Nat’l Tank Co, 91 Ill 2d 69, 78; 61 Ill Dec 746; 435 NE2d 443 (1982).
See Superwood Corp v Siempelkamp Corp, 311 NW2d 159, 162 (Minn, 1981), overruled on other grounds Hapka v Paquin Farms, 458 NW2d 683 (Minn, 1990).
Clark v Int’l Harvester Co, n 17 supra.
MCL 600.2945; MSA 27A.2945:
"[Products liability action” means an action based on any legal or equitable theory of liability brought for or on account of death or injury to person or property caused by or resulting from the manufacture, construction, design, formula, development of standards, preparation, processing, assembly, inspection, testing, listing, certifying, warning, instructing, marketing, advertising, packaging, or labeling of a product or a component of a product.
See Kershaw Co Bd of Ed v United States Gypsum Co, n 16 supra; Pisano v American Leasing, 146 Cal App 3d 194; 194 Cal Rptr 77 (1983).
See, e.g., Chicago Heights Venture v Dynamit Nobel of America, Inc, 782 F2d 723 (CA 7, 1986) (a leaking roof caused water damage to other parts of an apartment building).
The Minnesota Legislature has since modified the rule stated in Hapka, with passage of Minn Stat, § 604.10, which allows tort recovery for economic loss arising "from a sale of goods that is due to damage to tangible property other than the goods sold . . . but economic loss that arises from a sale of goods between parties who are each merchants in goods of the kind is not recoverable in tort.” ZumBerge v Northern States Power Co, 481 NW2d 103, 107, n 2 (Minn App, 1992).
A motion for summary disposition premised upon the statute of limitations is governed by MCR 2.116(C)(7); in deciding such a motion, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence filed by the parties. MCR 2.116(G)(5).
See anno: Applicability of UCC Article 2 to mixed contracts for sale of goods and services, 5 ALR4th 501, 505.
On appeal in this Court, plaintiffs also attempt to avoid application of the ucc by arguing that there is no privity of contract between plaintiffs and defendants Universal and Alfa-Laval. We note that this issue was not raised in the trial court or in the Court of Appeals and thus is not properly before us. We also note in each case that plaintiffs allege that the defendant retailer was an "agent” of the manufacturer. | [
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The Court of Appeals, in a published opinion, has concluded that the 1988 amendment of MCL 763.3; MSA 28.856 . . did not destroy a vested or substantive right of defendant.” People v Dobben, 187 Mich App 462, 469 (1991). The trial judge has disregarded Court of Appeals precedent in this regard. The Supreme Court directs the trial judge, unless this question is resolved by this Court in a manner inconsistent with the result arrived at in the Court of Appeals decision in Dobben, supra, to abide by that ruling. The matter is remanded to the Recorder’s Court for further proceedings consistent with this order. Jurisdiction is not retained. | [
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Cavanagh, C.J.
We address in this case the validity of a municipal speed-limit ordinance applied to freight trains operating within city limits. We find the ordinance preempted by federal law, and we therefore affirm the judgment of the Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
The relevant facts in this case are undisputed. The City of Fenton, a small community in Genesee County, is bisected by a major freight train line operated by the Grand Trunk Western Railroad Company. Approximately twenty-four trains pass through Fenton on this track each day, operating at speeds up to fifty miles per hour. Several automobile crossings exist within Fenton city limits. The busiest of these, the North Leroy Street crossing, is heavily traversed and has been the scene of a number of fatal accidents over the years.
On October 13, 1986, in response to the safety problems posed by the crossings and the perceived failure of Grand Trunk to address those problems adequately, Fenton passed an ordinance that imposed a speed limit of twenty-five miles per hour on freight trains operating within city limits. The ordinance provides that any violation "shall be considered a misdemeanor punishable by up to 90 days in jail and/or a fine of not to exceed $500.00,” and that "[t]he person in immediate charge and control of a train and/or any railroad company or corporation, owning or operating any railroad in violation of the provisions of this ordinance may be charged with the violation of the provisions of this ordinance.”
On February 26, 1987, Grand Trunk filed a complaint in the Genesee Circuit Court, seeking an injunction against enforcement of Fenton’s ordinance on the ground that the ordinance is void under the Supremacy Clause, US Const, art VI, cl 2, because it is preempted by the Federal Railroad Safety Act (frsa), 45 USC 421 et seq., and regulations enacted pursuant to it by the Secretary of Transportation. On March 13, 1989, following a number of procedural complications not relevant here, the circuit court granted summary disposition for Grand Trunk, and the requested injunction was issued on April 6, 1989. The Court of Appeals affirmed in an opinion per curiam, 184 Mich App 166; 457 NW2d 120 (1990), and this Court granted leave to appeal, 437 Mich 1035 (1991).
II. ANALYSIS
The general principles governing federal preemption are well established:
Our cases have established that state law is preempted under the Supremacy Clause, US Const, art VI, cl 2, in three circumstances. First, Congress can define explicitly the extent to which its enactments pre-empt state law. Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.
Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a "scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it” ....
Finally, state law is pre-empted to the extent that it actually conflicts with federal law. [English v General Electric Co, 496 US 72, 78-79; 110 S Ct 2270; 110 L Ed 2d 65 (1990). Citations omitted.]
In this case, the Federal Railroad Safety Act provides a clear basis for applying the first form of preemption noted above:
The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce. [45 USC 434.]
It is clear under this provision that Congress generally intended to preempt any and all state or local regulation of railroad safety, except for regulations authorized under either of the two exceptions set forth in the statute. See, e.g., Donelon v New Orleans Terminal Co, 474 F2d 1108, 1112 (CA 5, 1973). Fenton argues that both exceptions apply, and that either one is sufficient to validate its ordinance. Grand Trunk makes several arguments against the application of either exception. First, it contends that both exceptions apply only to regulations adopted by a "State,” and not regulations adopted by cities or other units of local government. Furthermore, with regard to the first exception, Grand Trunk contends that the Secretary of Transportation has indeed "adopted a rule, regulation, order, or standard covering the subject matter” of Fenton’s ordinance, namely the federal train-speed regulations embodied in 49 CFR 213. With regard to the second exception, Grand Trunk contends that the ordinance, even if directed toward an "essentially local safety hazard,” is incompatible with the federal regulations and imposes an "undue burden on interstate commerce.”
We agree with Grand Trunk that the. first exception cannot save Fenton’s ordinance, in light of 49 CFR 213. This regulation sets forth a detailed and comprehensive framework of speed limits for freight and passenger trains. See, e.g., 49 CFR 213.9(a), and part 213, appendix a. Fenton contends, however, that these provisions only regulate speed in relation to track and roadbed conditions, with the primary goal of preventing derailments and without regard to the issue of crossing safety in congested urban areas, the primary concern of Fenton’s ordinance.
This issue was recently addressed by the United States Court of Appeals for the Eleventh Circuit in Easterwood v CSX Transportation, Inc, 933 F2d 1548 (CA 11, 1991). Presented by the appellant in that case with essentially the same argument presented here by Fenton, the court in Easterwood stated:
[As] the Supreme Court held in Florida Lime & Avocado Growers, Inc v Paul, 373 US 132, 142; 83 S Ct 1210; 10 L Ed 2d 248 (1963), ... it is irrelevant to pre-emption analysis whether the state law’s objectives are similar to or different from the federal law’s objectives. Pre-emption analysis turns on Congress’ intent to pre-empt state law and on the nature of the federal regulations. The Florida Lime & Avocado Growers Court noted that a comparison of the similarities and divergences in the objectives of the federal and state regulations is simply a poor predictor of whether the federal regulations will pre-empt state law. Id. Moreover, [the appellant] does not point to any legislative history for the speed limits and therefore she asks us to guess at the motives behind the Secretary of [Transportation’s actions]. Such guessing is inherently suspect. While [the appellant] assumes that the speed limits are designed to prevent derailments, it is equally valid to assume that the speed limits were set low enough that, in conjunction with adequate grade crossing signals and gates, the speed limits were intended to lessen the number of grade crossing accidents as well as lessen the chances of derailments. [933 F2d 1554.]
We find Judge Johnson’s opinion in Easterwood to be soundly reasoned and persuasive, and we therefore conclude that the Secretary of Transportation has covered the subject matter sought to be addressed by Fenton’s ordinance.
With regard to the "local safety hazard” exception of § 434, we conclude that, even assuming all other conditions were met, Fenton’s ordinance is necessarily "incompatible with” the regulatory framework of 49 CFR 213. The parties agree that the current speed limit under the federal regulations for freight trains passing through Fenton is fifty miles per hour, in contrast with the twenty-five-mile-per-hour limit imposed by the ordinance. While it is possible for trains to obey both the federal and local limits, it is clear that enforcement of the much lower local limit would substantially interfere with the carefully wrought federal scheme. It is undisputed that trains take many miles and a substantial amount of time to shift between substantially different speeds. Authorizing local speed limits like Fenton’s would raise the specter of a patchwork of conflicting local rules interfering with the uniformity and smooth operation of the federal regulatory framework. As one federal district court has stated:
Congress was concerned that the existence of fifty separate [railroad] regulatory systems in the fifty states would undermine safety. If so, separate regulation by every city, village, township, or hamlet along the mainline would undermine safety infinitely more. Separate municipal regulation of speed is so greatly at odds with the Congressional purpose of uniformity as to need no further argument. [Consolidated Rail Corp v Smith, 664 F Supp 1228, 1238 (ND Ind, 1987), accord City of Covington v Chesapeake & O R Co, 708 F Supp 806, 808-809 (ED Ky, 1989).]
Furthermore, we agree with Grand Trunk’s argument that the § 434 exceptions apply, in any event, only to the states and not to local governments. This conclusion is consistent with the plain language of § 434 and its legislative history, and is
supported by a unanimous line of precedent in the lower federal courts. See Donelon, supra, 474 F2d 1112-1113; CSX Transportation, Inc v City of Thorsby, 741 F Supp 889, 891-892 (MD Ala, 1990); Grand Trunk W R Co v Town of Merrillville, 738 F Supp 1205, 1207 (ND Ind, 1989); City of Covington v Chesapeake & O R Co, supra, 708 F Supp 808-809; CSX Transportation, Inc v City of Tullahoma, 705 F Supp 385, 387-388 (ED Tenn, 1988); Southern Pacific Transportation Co v Town of Baldwin, 685 F Supp 601, 603-604 (WD La, 1987); Chesapeake & O R Co v City of Bridgman, 669 F Supp 823, 826 (WD Mich, 1987); Consolidated Rail Corp v Smith, supra, 664 F Supp 1237-1238; Johnson v Southern R Co, 654 F Supp 121, 124 (WD NC,. 1987); Sisk v Nat’l Railroad Passenger Corp, 647 F Supp 861, 865 (D Kan, 1986).
The United States Supreme Court’s recent decision in Wisconsin Public Intervenor v Mortier, 501 US —; 111 S Ct 2476; 115 L Ed 2d 532 (1991), does not compel a contrary conclusion. Mortier involved an entirely separate federal statutory scheme, the Federal Insecticide, Fungicide, and Rodenticide Act (fifea), 7 USC 136 et seq., replete with its own complexities and peculiarities. While the issue in Mortier bears a superficial similarity to that presented here, in that the petitioner in Mortier claimed that the fifra authorized local regulation of pesticides on the basis of statutory language expressly authorizing only a "State” to regulate pesticides under certain conditions, see 111 S Ct 2482, and 7 USC 136v, there is a crucial difference.
As the Court noted in Mortier, there was no claim that the fifra either expressly preempted local regulation of pesticide use or evinced a Congressional intent, apart from the statutory authorization to the states, to otherwise exclusively occupy that field. See 111 S Ct 2482-2483. Rather, the respondent’s preemption argument with regard to the statutory text rested primarily on the express authorization of "State” regulatory authority, coupled with the statutory silence with regard to local regulatory authority. As the Court held in ruling for the petitioner, "[m]ere silence . . . cannot suffice to establish a 'clear and manifest purpose’ to pre-empt local authority.” 111 S Ct 2483 (citations omitted).
In this case, by contrast, § 434 expressly indicates Congress’ intent to occupy the entire field of railroad safety regulation, subject only to the two exceptions set forth in § 434. Thus, § 434’s silence with regard to local regulatory authority is not itself the basis for concluding that local regulation is preempted; rather, that silence exists against the backdrop of statutory language otherwise generally preempting both state and local regulation. Because only "State” regulatory authority, under certain limited circumstances, is expressly exempted from the scope of § 434’s preemption, it follows that local regulatory authority is not included in that exemption. Just as the statutory silence in Mortier was insufficient to establish preemption in the first place, so the statutory silence here is insufficient to overcome the preemption otherwise expressly mandated by the statute.
Furthermore, the Court in Mortier noted that other provisions of the fifra refer not only to the "States” but also to their "political subdivisions.” See 111 S Ct 2483, and 7 USC 136f(b), 136t(b). As the Court stated, "[i]f the use of 'State’ in fifra impliedly excludes subdivisions, it is unclear why the one provision would allow the designation of local officials for enforcement purposes while the other would prohibit local enforcement authority altogether.” 111 S Ct 2483-2484. For these reasons, the Court’s conclusion in Mortier that local governments remain free to regulate pesticides under the fifra does not conflict with our conclusion that local governments are barred from regulating railroad safety under § 434 of the frsa.
For the foregoing reasons, and despite our sympathy for the genuine safety concerns that motivated the adoption of Fenton’s train-speed ordinance, we are compelled to find that ordinance preempted and void under the Supremacy Clause, US Const, art VI, cl 2.
We affirm the judgment of the Court of Appeals.
Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.
Grand Trunk also alleged that the ordinance imposed an undue burden on interstate commerce in violation of US Const, art I, § 8, cl 3, but neither the circuit court nor the Court of Appeals addressed that issue, and we likewise find it unnecessary to do so.
In the alternative, Grand Trunk argues that cities like Fenton do not possess any delegated authority under Michigan law to regulate freight train speeds. The Court of Appeals did not reach this issue, however, and we likewise find it unnecessary to do so.
It is unclear whether Grand Trunk concedes that the safety problems affecting Fenton’s crossings constitute an "essentially local safety hazard” under § 434. As explained below, we are able to resolve this case in Grand Trunk’s favor under the assumption that they do.
As noted above, see n 1, we do not reach Grand Trunk’s "undue burden” argument.
See H Rep No 91-1194, 91st Cong (2nd Sess), reprinted in 1970 US Code Cong & Admin News 4104, 4116-4117. This committee report refers consistently to a "State’s” authority to regulate railroad safety under the exceptions to preemption of § 434, and makes no mention of excepting local or municipal regulatory authority from the broad federal preemption expressed by § 434. With regard to the second exception, the report states that "[s]ince these local hazards would not be Statewide in character, there is no intent to permit a State to establish Statewide standards superimposed on national standards covering the same subject matter.” Id. at 4117. Because only a state, obviously, would have the power to contemplate "statewide standards” in the first place, this sentence offers further suggestive evidence that only states, not municipalities or other local governments, were envisioned by Congress as exercising the regulatory powers permitted under the § 434 exceptions.
Mortier also involved arguments for preemption on the basis of the legislative history of the fifra, see 111 S Ct 2484-2485; cf. 111 S Ct 2490 (Scalia, J., concurring in the judgment) (objecting that "we are a Government of laws not of committee reports”), but that is of no concern to us in this case because the fifra’s legislative history obviously has no bearing on the frsa. As we have already discussed, the frsa’s legislative history supports our analysis here. See n 5.
We note that municipalities like Fenton are not without remedies for these concerns; rather, they must simply pursue such remedies in cooperation with the state and federal Departments of Transportation, and in accordance with state and federal statutes and regulations. | [
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Per Curiam.
The Court of Appeals reversed this defendant’s convictions on the ground that his trial did not take place within the 180-day time limit that is found in the Interstate Agreement on Detainers. We conclude that the Court of Appeals erred in its calculation of the 180-day period. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
I
In December 1987, a robbery took place at a Jackson restaurant. Following an investigation, the defendant was charged with armed robbery and possession of a firearm during the commission of that felony. MCL 750.529, 750.227b; MSA 28.797, 28.424(2).
For an unrelated conviction, the defendant was incarcerated during 1988 at the Westville Correctional Center in Indiana. On September 7, 1988, he learned that Michigan authorities had placed a detainer on him as a result of the Jackson robbery. That day, he gave the Indiana prison authorities his request for final disposition of the robbery charge.
The Indiana authorities mailed the defendant’s request on September 22, 1988. It was received by the Jackson County Prosecuting Attorney on September 26, 1988.
The defendant’s trial began on March 22, 1989, when a jury was selected. March 22 was 177 days after the request was received in Jackson County, 181 days after it was mailed from Indiana, and 196 days after the defendant delivered his request to the Indiana authorities.
Prior to trial, the defendant had filed a written motion for dismissal under the Interstate Agreement on Detainers (iad). MCL 780.601 et seq.; MSA 4.147(1) et seq. In his motion, he argued that the trial would not begin until after the 180-day limitation found in Article III(a) of the iad.
The trial court heard and denied the motion on the first day of trial. The next day, the jury found the defendant guilty of armed robbery and felony-firearm.
The defendant’s convictions were reversed by the Court of Appeals. The prosecutor has applied for leave to appeal.
II
Article III(a) of the iad provides that a defendant "shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . .” This case squarely presents the question whether the phrase "caused to be delivered” refers to the date when the request is given to prison authorities, or the date when the request is received by officials of the state where the prosecution is pending.
The iad is several decades old and is written in a style that permits the interpretation urged by the defendant. However we are persuaded that the proper interpretation is that urged by the prosecutor. In Article III(b), the iad states a prisoner’s duty to give or send the request to the prison authorities who are holding him. Similar language, which would indicate that the 180-day period runs from the date the request is given or sent to prison authorities, could , easily have been employed in Article III(a), if the drafters had been so inclined. Instead, the period runs from the time when the prisoner has caused delivery, which is actual receipt.
This interpretation is consistent with the explanation offered by the United States Supreme Court in Carchman v Nash, 473 US 716, 721; 105 S Ct 3401; 87 L Ed 2d 516 (1985):
Specifically, Art. Ill requires the warden to inform the prisoner that a detainer has been lodged against him and that he may request final disposition of the indictment, information, or complaint upon which the detainer is based. If the prisoner makes such a request, the warden must forward it, together with a certificate providing certain information about the prisoner’s terms of confinement, to the appropriate prosecuting official and court of the receiving State. The authorities in the receiving State then must bring the prisoner to trial within 180 days, absent good cause shown, or the court must dismiss the indictment, information, or complaint with prejudice, and the detainer will cease to be of any force or effect. [Emphasis added.]
A similar view is found in the report that the United States Senate Judiciary Committee presented when it recommended passage of the iad:
Under the agreement, prison authorities are required to inform prisoners of all indictments, informations, or complaints on the basis of which detainers have been lodged against them by other jurisdictions. Prisoners may then request trial on such pending charges. Any request is transmitted through the warden to the proper official in the other jurisdiction who then has 180 days to bring the prisoner to trial. [S Rep No 91-1356, 91st Cong (2nd Sess), reprinted in 3 US Code Cong & Admin News 4864, 4865 (1970). Emphasis added.]
The rule requiring actual receipt of the prisoner’s request has been adopted in the overwhelming majority of jurisdictions that have considered this question. A typical discussion is found in State v Moore, 774 SW2d 590, 595 (Tenn, 1989), where the Tennessee Supreme Court explained:
In our opinion the receiving state cannot be charged with attempting to try the prisoner within 180 days until the receiving state has been given notice, by the prisoner or by officials of the sending state, of a request to proceed under Article III. Once that burden has been satisfied by the prisoner, the receiving state must, of course, comply with the terms of the Compact. There is a division of authority on this point. A few states have calculated the time from the date of the signing of the request for disposition, Form II, regardless of whether the receiving state receives the request or not. See, e.g., McCallum v State, 407 So 2d 865 (Ala Crim App, 1981), People v Daily, 46 Ill App 3d 195; 4 Ill Dec 756; 360 NE2d 1131 (1977), Commonwealth v Martens, 398 Mass 674; 500 NE2d 282 (1986), cert den 481 US 1041; 107 S Ct 1982; 95 L Ed 2d 821 (1987), State v Wells, 186 NJ Super 497; 453 A2d 236 (1982), and People v [Pellegrino], 131 Misc 2d 118; 499 NYS2d 841 (1986).
By far a greater number of cases, however, have reached the opposite conclusion, holding that the prosecutor or court in the receiving state cannot reasonably be expected to proceed until receipt of notice of the prisoner’s request. See, e.g., Young v Mabry, 471 F Supp 553 (ED Ark, 1978), aff’d 596 F2d 339 (CA 8 [1979]), cert den 444 US 853; 100 S Ct 107; 62 L Ed 2d 69 (1979); Beebe v Vaughn, 430 F Supp 1220 (D Del, 1977); Spears v State, 280 Ark 577; 660 SW2d 913 (1983); People v Bielecki, 41 Colo App 256; 588 P2d 377 (1978); State v Bras-well, 194 Conn 297; 481 A2d 413 (1984), cert den sub nom Braswell v Connecticut, 469 US 1112; 105 S Ct 793; 83 L Ed 2d 786 (1985); State v Minnick, 413 So 2d 168 (Fla App, 1982); Pinnock v State, 384 So 2d 738 (Fla App, 1980); Thompson v State, 186 Ga App 379; 367 SE2d 247 (1988); Scrivener v State, 441 NE2d 954 (Ind, 1982); Holland v State, 265 Ind 216; 352 NE2d 752 (1976); Sweat v Darr, 235 Kan 570; 684 P2d 347 (1984); State v White, 234 . Kan 340; 673 P2d 1106 (1983); Hines v State, 58 Md App 637; 473 A2d 1335 (1984); State v Walton, 734 SW2d 502 (Mo [en banc], 1987); State v McGann, 126 NH 316; 493 A2d 452 (1985); State v Ternaku, 156 NJ Super 30; 383 A2d 437 (1978); State v Reitz, 26 Ohio App 3d 1; 498 NE2d 163 (1984); Commonwealth v Fisher, 451 Pa 102; 301 A2d 605 (1973); State v Moosey, 504 A2d 1001 (RI, 1986). See generally anno: 98 ALR[3d] 160, § [16][a]----
In these cases it has been noted that it would be contrary to the public interest to start the 180 day period before actual receipt by the prosecutor of the prisoner’s request and that this could not have been the legislative intent in enacting the Compact. Article III requires that the receiving state proceed after the prisoner "shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of his imprisonment and his request for final disposition” of the charges pending there. (Emphasis added).
In the present case, the Court of Appeals cited three prior decisions for the rule that the 180-day statutory period is triggered when a defendant provides a request for final disposition to prison authorities. People v Marshall, 170 Mich App 269, 277; 428 NW2d 39 (1988); People v Malone, 177 Mich App 393, 398-399; 442 NW2d 658 (1989); People v Bowman, 189 Mich App 215, 218-219; 472 NW2d 645 (1991). However, an examination of these authorities demonstrates that they are of limited applicability.
In Marshall, a prisoner’s initial request for final disposition was never delivered by prison authorities. Similarly, Bowman involved a complete failure to forward a prisoner’s request. The statement in Malone was dictum.
In light of all these considerations, we are persuaded that the majority rule should be adopted in Michigan. We thus conclude that the Court of Appeals erred when it found that the defendant was not tried within the 180-day period stated in
Article III(a) of the iad. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(F)(1).
Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred.
The defendant was also charged with assault with intent to murder, but that count was later dismissed. MCL 750.82; MSA 28.277.
The defendant was sentenced to a term of from five to twenty years in prison for armed robbery. He also received the mandatory two-year consecutive term for felony-firearm.
Unpublished opinion per curiam of the Court of Appeals, decided June 21, 1991 (Docket No. 119192).
Article III(a) does not explicitly state that the notice must be received in order to trigger the 180-day period. Nor does it say that the prisoner must deliver his request. Instead, the statute requires the prisoner to have “caused” the delivery. Since Article III(b) specifically states that the prisoner is to give the request to the prison authorities (the prisoner is not personally to send the request to the state that seeks to prosecute), one could say that a prisoner who has fulfilled the obligation under Article III(b) has "caused” the delivery to the extent that it is within the prisoner’s power to do so.
An obvious purpose of an interstate agreement is to achieve a uniform body of law in the jurisdictions that have enacted the agreement. Absent sound reasons to the contrary, it is therefore sensible to interpret such an agreement in the same manner as a majority of other jurisdictions.
Since Article Ill(b) states that prison authorities "shall promptly forward” a prisoner’s request, we reserve the question how the iad should be applied in a case where the request is never forwarded or where there is a very substantial delay in delivering the defendant’s request.
Under the analysis applied by the Court of Appeals in Malone, the defendant was timely tried without regard to whether the 180-day period was triggered by the defendant giving notice to prison authorities or by actual receipt in the state where the prosecution was pending.
We have considered the defendant’s other arguments, and are not persuaded that relief should be granted on those claims.
The defendant’s motion for bond pending appeal is therefore denied as moot. | [
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Brickley,
J. In these cases we are again faced with the troublesome question of entrapment. We granted leave to appeal, 436 Mich 880 (1990), after adhering to the objective test and applying it in the plurality opinion in People v Jamieson, 436 Mich 61; 461 NW2d 884 (1990). We continue to adhere to the principles expressed in Jamieson and apply the objective test in determining whether defendants Brown and Juillet were entrapped.
We find that defendant Basil Brown was not entrapped. Under the objective test of entrapment, we cannot say that the government’s activities, although involving questionable conduct, would induce a normally law-abiding citizen, in Brown’s circumstances, to commit the crimes with which he was charged. Therefore, we would affirm defen dant Brown’s conviction. We find that defendant Danny Juillet was entrapped. The police activity in this case did have the likely effect of inducing a normally law-abiding person, in Juillét’s circumstances, to elevate his drug use to that of drug delivery. Additionally, the police conduct was reprehensible with regard to Juillet in that they manufactured the criminal conduct. Accordingly, we would reverse defendant Juillet’s conviction.
I. FACTUAL BACKGROUND
A. PEOPLE V BROWN
This case arose when an unidentified informant told Nancy Kalder, a special agent for the Organized Crime and Public Corruption Unit of the Attorney General’s office, that a prostitute, Kathryn B. Roberts, had received cocaine and marijuana from Brown.
In a night meeting on October 15, 1985, Kalder and Roberts reached an understanding that Roberts would go to Brown’s apartment, as she normally had in the past, and would receive whatever narcotics Brown had available. The narcotics would then be brought back to Kalder as a sample and for possible use as evidence against Brown. The parties agreed that if Roberts completed her part of the bargain, she would be furnished with a place to stay, given some money, and put into a drug rehabilitation program. In fact, Roberts received payments for all her expenses, including a hotel stay, spending money, and rides for any purpose even if not related to the investigation. The Attorney General’s office also enrolled Roberts in a rehabilitation program._
Roberts had been addicted to heroin since 1983 and had used cocaine since 1979. She earned money as a prostitute and previously had been charged at least twice for and had one charge of solicitation pending. After meeting Brown through another prostitute, Roberts was involved with him for over four years. She went to Brown’s apartment at least fifty times as a prostitute and shared drugs with him on many occasions. The only times they did not share drugs were when none were available. Roberts and Brown also exchanged sex or cash for drugs; however, the record does not indicate how many times or how much Brown paid Roberts for her sexual services.
At the time of her first meeting with Kalder on October 15, 1985, Roberts had not contacted Brown during the previous thirty days, and Brown had not called Roberts within the last six months, apparently because he no longer had a phone number through which he could reach her. The reason for the thirty-day lapse was Roberts’ failure to return $130 she received from Brown for the purpose of buying cocaine for him. However, during their four-year illicit relationship, it was not unusual for them not to contact each other for long periods of time. When they first met, Brown even told Roberts never to come to his apartment without calling first. Consequently, she always called Brown before going to his apartment, except for a brief time when she was living with her ex-husband and Brown called her. Sometimes Roberts made several telephone calls before Brown would tell her to come over to his apartment.
On October 17, 1985, Agent Kalder asked Roberts to call Brown and inform him that she had $50 as a partial payment for the money that she had stolen from him and would come to his apartment to repay the money. Roberts then called Brown, and he readily agreed to her suggested meeting. Special Agent Kalder gave $50 to Roberts to partially repay Brown for the $130 obligation. Kalder thought that this payment would ensure Roberts’ entry into Brown’s Lansing apartment.
Before she went to Brown’s apartment, the investigators strip-searched Roberts to make sure that no drugs were taken into Brown’s apartment, and strip-searched her again after she returned to ensure that she had not taken any drugs out of his apartment other than those that she handed over to Kalder. Roberts testified thát when she entered Brown’s apartment, he asked her if she wanted to roll them a joint, and that the marijuana was in his bedroom in a dish. She rolled a joint and both of them smoked it. Roberts and Brown also used some cocaine that Brown had in his apartment. She injected the cocaine with a syringe, going into the bathroom to do so because Brown allegedly did not like to wátch her use the needle. During this visit, as she had in the past, Roberts traded sex for the drugs given to her by Brown. Although they knew this type of conduct occurred frequently, the investigators allowed it to continue on this occasion because they wanted everything to appear as it always had during Roberts’ longstanding illicit relationship with Brown. When she left Brown’s apartment, he gave Roberts a small butt of marijuana to take with her to smoke at home. She gave that marijuana to Kalder.
Through a number of telephone calls, a second visit to Brown’s apartment was arranged for October 29, 1985. Roberts made the telephone calls to Brown to set up meetings with him in the same manner that she had for the preceding four years. During one phone call, as with the other phone calls requested by the Attorney General’s office, Roberts asked Brown if she "could stop by and smoke a joint with him.” Brown agreed to see Roberts. Roberts was again strip-searched before she entered Brown’s apartment. Brown asked'her if she wanted some cocaine, she agreed, and he gave her cocaine to take into the bathroom to inject. Roberts injected some of the cocaine, but put the rest into her purse to give to Kalder.
Another trip to Brown’s apartment was arranged for November 7, 1985. As before, the investigators strip-searched Roberts before she entered the apartment. She said that Brown was smoking when she arrived and asked her if she wanted to roll them a joint. She rolled one out of some marijuana that was on defendant’s dresser and they both smoked it. Roberts and Brown also used some cocaine. Brown snorted the cocaine, and she went into the bathroom three times to inject it. In return for the drugs, Roberts again gave sexual favors to Brown. Roberts put some of the cocaine that Brown had given her into an envelope in her purse and carried it out with her when she left. Roberts gave the envelope to Special Agent Kalder.
On the basis of these contacts, a search warrant and an arrest warrant were signed by a magistrate on November 8, 1985, and Brown was charged in four lower court files.
On March 27, 1986, Brown filed a motion to quash the information in Ingham Circuit Court. The motion focused on the entrapment issue, but also contained several other matters not before us on appeal. Ingham Circuit Judge James T. Kali- man heard the motion and denied it in an opinion and order dated June 4, 1986.
The Court of Appeals initially denied Brown’s interlocutory appeal on December 19, 1986, but we remanded the case for consideration as on leave granted, 428 Mich 851 (1987). The Court of Appeals affirmed Judge Kallman’s findings. The Court said that some of the police conduct in this case was "merely distasteful.” 163 Mich App 273, 275; 463 NW2d 766 (1987). However, it found other aspects of the investigation "truly reprehensible,” including using a known drug addict, allowing her to commit sexual acts with the defendant, and allowing the informant to "engag[e] in a meretricious relationship with the defendant.” Id. at 276. Nevertheless, the Court of Appeals found that although the police "caused” the informant’s contact with the defendant in a broad sense of the term, Brown was not entrapped because the police activity did not instigate the crimes. Id. at 277. Judge Beasley concurred, noting that because Brown did not testify, the Court had to accept the testimony of Roberts regarding their past relationship. Id. at 295. On the basis of the evidence presented, Brown did not prove that the police had "instigated” the crimes charged, and he failed to meet his burden to prove entrapment. Id. at 295-296.
After an interlocutory appeal to this Court, which we denied, and a subsequent conditional plea to an October 17, 1985, delivery of marijuana, MCL 333.7401(1), (2)(c); MSA 14.15(7401)(1), (2)(c), and an October 29, 1985, delivery of less than fifty grams of cocaine, MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv), Brown filed an appeal of right. The Court of Appeals again reviewed his conviction, 173 Mich App 202; 433 NW2d 404 (1988) (Brown II), finding that it was bound by the law of the case doctrine and thereby affirming the prior panel’s findings on the issue of entrapment. Id. at 209-210. We granted leave to appeal.
B. PEOPLE V JUILLET
While only the second of three drug transactions is at issue here, we find it helpful to look at all the circumstances surrounding that charge. On September 8, 1982, Juillet was charged with delivery of marijuana and lsd. MCL 333.7401(1), (2)(b), (2)(c); MSA 14.15(7401)(1), (2)(b), (2)(c). Juillet was also charged with separate incidents of delivery of marijuana and delivery of pop (phencyclidine). MCL 333.7401(2)(b); MSA 14.15(7401)(2)(b). After being bound over for trial on all charges, Juillet requested and obtained a Turner hearing on the question of entrapment. Subsequent to Juillet’s hearing, the trial court ordered that his hearing be supplemented by a more extensive record in a related case. From the record of these hearings, the following facts can be found.
This case initially began when Ronald Bleser, a police undercover informant, moved to the Cheboygan County area on January 12, 1982. Bleser attempted to become part of an alleged "drug subculture” in the Cheboygan area and became known as a user and supplier of narcotics. The Michigan State Police, who were directed to the Cheboygan area by a number of unknown sources, hired Bleser. The Michigan State Police and Cheboygan County paid Bleser for his services and any other expenses that he incurred as an informant. However, when the police paid Bleser, he did not have to account for his use of the money. Bleser, in addition to covering his living expenses, also used the money to purchase alcohol for minors, a fact known by the police, and for the illegal purchase of drugs for his own use.
During the investigation, the police never attempted to determine what activities Bleser was involved in during the course of the investigation. The police officers also failed to thoroughly inspect Bleser’s apartment to determine if he ever possessed or sold drugs. Additionally, the police officers were never instructed to investigate Bleser’s conduct in the event they learned that he may have been involved in criminal activities.
Bleser continually provided drugs and alcohol for parties that occurred at his apartment. One store owner indicated that Bleser usually came into the store a number of times a week and purchased substantial amounts of alcohol. Bleser kept large amounts of alcohol and a tray filled with marijuana in his apartment for all to use. He also possessed and ingested drugs, and may have supplied drugs to Juillet as well as a number of other persons.
During the course of this untargeted undercover operation, Bleser initially encountered Juillet sometime during the last two weeks of January when he inadvertently met him walking down a road. Bleser offered to buy some beer for the two of them and, later, when Juillet was intoxicated, Bleser asked him for some marijuana. Juillet stated that although he had some marijuana, it was not for sale. Bleser continued to ask Juillet for marijuana, and when Juillet finally obliged, Bleser, without Juillet’s asking, gave him a couple of dollars to cover the cost, lit the marijuana cigarette and smoked it. After that day, every time that Juillet saw Bleser, which was just about every day, Bleser asked Juillet for drugs.
In the first transaction with which Juillet was charged, which occurred approximately two weeks after their first meeting on February 1, 1982, Bleser and an undercover officer went to Juillet’s residence where Juillet stated that he knew someone who had some drugs, and the undercover officer replied that he was interested in . making a purchase. Juillet took the officer to another location, where they parked. The officer gave Juillet $50, and Juillet left the vehicle. However, Juillet soon returned and gave the $50 back, indicating no drugs were available. The officer then asked if Juillet could get him some marijuana. Juillet directed the officer to a second location where the officer parked his vehicle. The officer again gave Juillet $50, and Juillet got out. When Juillet returned he simply said "not home” and directed the officer back to Cheboygan. In town, Juillet saw someone he knew and got out of the car again. When Juillet returned he delivered one ounce of marijuana to the officer and kept the $50 the officer had already given him at the second location as the purchase price.
In a second charged transaction, which is the basis of the charge at issue and which occurred on or about March 2, 1982, Juillet was at Bleser’s apartment. Bleser said a friend of his was coming from out of town and asked if Juillet could get his friend some drugs. Later, when Bleser and an undercover officer posing as Bleser’s friend drove past a local arcade in Cheboygan, Juillet flagged them down and came over to the officer’s vehicle. Juillet said there was a man named "Bob” at the arcade who had marijuana and lsd for sale. Bleser asked what Juillet wanted to do, and Juillet replied, "Let’s meet at your apartment in about five minutes.” The parties separated, and the officer and Bleser went to Bleser’s apartment and waited. About ten minutes later, Juillet, another man named Robert Howell, and a white female appeared at Bleser’s door. Howell produced a number of drugs, including one ounce of marijuana and some lsd, which he delivered to the officer for $70.
In the final charged transaction, which occurred on or about March 24, 1982, Bleser and Juillet were at Bleser’s apartment when he asked Juillet to obtain pcp for a close friend, who turned out to be an undercover officer. At the time of the transaction, Juillet was smoking marijuana laced with pcp and was also intoxicated from alcohol.
Juillet admitted that he was a regular user of marijuana and pcp. Juillet also admitted he was willing to get drugs for Bleser and that he previously knew from whom he could get drugs. Juillet was twenty years old at the time he initially met Bleser and only had an eleventh grade education. Furthermore, Juillet indicated that Bleser ingested drugs while in, Juillet’s company.
At the hearings, Bleser admitted that he had no knowledge that Juillet was ever a drug dealer, that he kept up a friendship with Juillet, and that he was generally acquainted with Juillet.
On March 7, 1983, the trial court filed an opinion on the basis of the evidence presented. While the record is not completely clear, it does indicate that the trial court analyzed all three transactions in the same manner and as if they occurred under the same circumstances. The court found that Juillet was not entrapped in the first two transactions. The trial court ruled that because Bleser did not participate in the actual transactions — even though he initiated the contact with Juillet, provided drugs to Juillet, and set up the trans actions — Bleser did not cause the transactions to occur. The trial court felt that the informant’s conduct "was not likely to induce a normally law abiding person in Defendant’s circumstances to commit the delivery . . . .’’The circuit court, however, found that Juillet was entrapped in the third drug transaction, which occurred on or about March 24, because he obtained the drugs for the police informant, was under the influence of drugs at the time of the transaction, and was encouraged into the transaction by Bleser. Subsequently, the prosecution also did not prosecute the first charged drug transaction.
Rather than continue with a bench trial that began on March 9, 1983, on March 11 Juillet pleaded guilty of the marijuana count, which was part of the second charged transaction, in exchange for dismissal of the lsd count. Juillet was sentenced to a three-year term of probation with one year to be served in the Cheboygan County jail. In setting Juillet’s sentence, the trial court noted that factors influencing the court were Juillet’s "70 i.q., the fact that you’re on General Assistance and have been receiving psychological counseling in the past.”
The Court of Appeals affirmed Juillet’s conviction. Unpublished opinion per curiam of the Court of Appeals, decided June 5, 1985 (Docket No. 72990). The Court of Appeals held that "the police or their agents [did not] manufacture[ ] defendant’s crime by conduct likely, when objectively considered, to induce or instigate the commission of the crime by a person not ready and willing to commit it.” Slip op, p 1. The Court of Appeals found no evidence of an exploited friendship or overt pressure sufficient to support a finding of entrapment. From this opinion, Juillet appealed.
II. THE ENTRAPMENT DEFENSE
A. PURPOSE AND HISTORY
The overall purpose of the entrapment defense is to deter the corruptive use of governmental authority by invalidating convictions that result from law enforcement efforts that have as their effect the instigation or manufacture of a new crime by one who would not otherwise have been so disposed. People v D’Angelo, 401 Mich 167, 174; 257 NW2d 655 (1977); People v Turner, 390 Mich 7, 16; 210 NW2d 336 (1973); People v Sinclair, 387 Mich 91, 116-120; 194 NW2d 878 (1972). In Michigan entrapment is not a defense that negates an essential element of the charged crime. Instead, it presents facts that are collateral to the crime that justify barring the defendant’s prosecution. D’Angelo, 401 Mich 179.
We previously defined Michigan’s entrapment defense:
"[W]hen the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced — I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime . . . .” [Turner, 390 Mich 21 (citing United States v Russell, 411 US 423, 445; 93 S Ct 1637; 36 L Ed 2d 366 [1973]) (Stewart, J., dissenting). Emphasis added.]
However, when a defendant is only given the opportunity to commit a crime, or is given aid in furthering an already committed conspiracy so that the government can acquire evidence of that crime, the defendant cannot claim entrapment as a defense. People v Smith, 296 Mich 176, 182; 295 NW 605 (1941).
In applying the entrapment defense, two tests have emerged across the country. Many states and the federal government use a subjective test, while Michigan and a minority of other states follow the objective test of entrapment. In Jamieson, supra, we analyzed both federal and Michigan law and determined that we would continue to follow the objective test, which focuses primarily on the investigative and evidence-gathering procedures used by the governmental agents, rather than the subjective test, which focuses on the defendant’s predisposition or motivation to commit a new crime. Id. at 72.
Under a proper approach, factors of both the subjective and objective tests can be considered and utilized to determine if entrapment occurred. Id. at 79. Both tests are concerned with "the eradication of convictions that result more from law enforcement invention than from law enforcement detection.” Id. at 78. The purpose of the entrapment test is to discourage police conduct that manufactures, induces, or instigates the commission of a crime, rather than simply detecting criminal behavior. Turner, supra at 20.
We do not judge whether a particular scheme or plan used by the police was the best or most effective way to detect criminal behavior. Jamie-son, supra at 82. If we were to decide whether certain types of police conduct were reprehensible because better or more effective ways or techniques to detect criminal behavior were available, we would simply be allowing judges and courts to vent their own personal thoughts and beliefs regarding police investigative practices. However, the objective entrapment test, as formulated in Jamieson, must instead determine whether the police conduct in question has as its "probable and likely outcome the instigation rather than the detection of criminal activity.” Id. at 77.
B. ANALYSIS OF THE NORMALLY LAW-ABIDING PERSON
When we analyzed the objective test of entrapment in Jamieson, supra, we restated that, although the objective test is mainly concerned with the existence of reprehensible police conduct, consideration must be given to "the willingness of the accused to commit the act weighed against how a normally law-abiding person would react in similar circumstancesId. at 74 (emphasis added). We hinged our analysis in Jamieson on whether the police conduct in question would induce or cause a hypothetical person to engage in criminal activity. Id. at 74, 80. By taking into account the reactions of normally law-abiding citizens, we reaffirmed a belief that not all generally offensive police conduct will necessarily support a claim of entrapment. Id. at 76.
Our analysis using the normally law-abiding person is not, as was suggested by the dissent in Jamieson, a new approach to the entrapment test. Even the Court in Turner realized that when reviewing a situation to determine if the defendant was entrapped, a court must consider the defendant’s situation and whether his conduct was induced by the police. See Turner, supra at 22-23. By applying the term "normally law-abiding person,” we were simply restating who could be considered a "person not ready and willing to commit” the crime with which he is charged._
Under the Jamieson analysis, the court can review the circumstances of the defendant to determine whether the police conduct would induce a similarly situated person, with an otherwise law-abiding disposition, to commit the charged crime. The circumstances of the particular defendant may be considered by the trial court in analyzing the ready and willing component of the objective entrapment test, as we stated in Jamieson.
We conclude that the furnishing of contraband by the government is insufficient to induce or instigate the commission of a crime by the average person, similarly situated to these defendants, who is not ready and willing to commit it. We also note that this is not a case where the government’s furnishing of narcotics was for the purpose of trying to escalate the criminal culpability of defendants. [Id. at 89-90. Emphasis added.]
The trial court is entitled to consider the circumstances in which the defendant was situated in relation to the particular criminal charge brought by the prosecution. The court shall consider the effects of the police conduct upon a normally law-abiding person in the circumstances presented to the defendant, including potential vulnerability.
On the record before us, the case simply cannot be made that this sixteen-year-old inmate preyed upon the weaknesses of his captors to the extent that they would be induced beyond a readiness to make contact with an alleged drug supplier outside the jail and to transport drugs inside the jail to such an inmate. [Id. at 85-86. Emphasis added.]
The targets were not unwary or vulnerable. To the contrary, they were trained in law enforcement, sworn to uphold the law, and spent their working days in a most controlled environment in which they were in charge. The plan to uncover the reported source of drugs in the jail did not prey on human weakness (it is hoped that transporting drugs into a jail by correction officers is not seen as a normal human weakness) or friendship or the use of authority to intimidate. [Id. at 93. Emphasis added.]
Therefore, we adhere to the belief that the individual defendant’s circumstances are relevant in determining whether the police conduct rose to a reprehensible level.
This test still bars evidence of the defendant’s predisposition, such as prior convictions or activities not related to the circumstances involved in the current case. By applying the similar-circumstances test, a court can avoid dealing with hypothetical situations, trying to identify what a "normal” person is and what a "normal” person does. We therefore conclude that a test allowing evaluation of the defendant’s circumstances, in light of an otherwise law-abiding disposition, is more in keeping with the purpose of the entrapment defense.
C. FACTORS INDICATING POLICE-INDUCED CONDUCT
To determine whether the governmental activity would induce a normally law-abiding person in circumstances similar to the defendant’s to engage in criminal activity, courts in Michigan and other objective test states have stated a number of types of conduct to consider in addition to the defendant’s circumstances that would be found to have manufactured a crime. In Turner, supra, we indicated that the court could consider whether there existed any appeals to the defendant’s sympathy as a friend, whether the defendant had been known to commit the crime with which he was charged, and whether there were any long time lapses between the investigation and the arrest. 390 Mich 22-23.
A number of other factors exist which have been considered by various courts to determine if a person in circumstances similar to the defendant’s would be entrapped. In addition to the factors indicated in Turner, the courts have also considered any inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding citizen, offers of excessive consideration or other enticement, and a guarantee that the acts alleged as crimes were not illegal. Jamieson, 436 Mich 73-74. Furthermore, the courts consider whether and to what extent any government pressure existed, the existence of sexual favors, whether there were any threats of arrest made by the governmental agents, and the existence of any government procedures that tend to escalate the criminal culpability of the defendant. Id. Finally, the courts have considered the police control over any informant, Jamieson, supra, whether the investigation is targeted or untargeted, People v Duis, 81 Mich App 698; 265 NW2d 794 (1978); see also State v Anders, 560 So 2d 288 (Fla App, 1990); Lusby v State, 507 So 2d 611, 612-613 (Fla App, 1987) (stating that entrapment may exist when an informant goes on a "fishing expedition” and has no reason to believe that a person has any contact with illegal drugs), and whether an informant or undercover officer was a necessary ingredient in the undercover operation. While this list is not intended to be exclusive, these items are some of the more important factors that courts have considered.
III. RESPONSE
In response to the opinions of our colleagues, we think it important, particularly in the matter of the two-part test set forth in the opinion of Justice Boyle, to recapitulate the posture of these cases in relation to the defense of entrapment as it has developed in recent opinions of this Court.
The application for leave to appeal in Juillet came to this Court in early 1986 and in Brown, in early 1987. Both cases were held in abeyance for resolution of Jamieson. Subsequently, while these cases were still in abeyance status and oral arguments had been heard in Jamieson, we asked for rebriefing in that case "with regard to whether we should abandon the objective entrapment test in preference to the subjective test.” Jamieson, 436 Mich 65.
After rebriefing, we decided Jamieson in a plurality opinion which candidly set forth what we considered to be the virtues and shortcomings of these two tests as they are in effect in federal courts and other states. Having done so, we concluded that we had not found sufficient reason to depart from precedent and adhered to the objective test.
As evidenced by the ongoing debate in the courts across the land on this question, the entrapment defense benefits from any analysis it can receive. For that reason, we do not lightly dismiss the usual scholarly effort of our colleague, Justice Boyle, which would have us embark on yet another test. However, given the difficulties inherent in a defense that is conceptually alien to tradi tional notions of criminal culpability, we must strive for some degree of certainty and finality in this particular area of law.
To require that these two cases go through yet another visit to the lower courts on the basis of a totally new test and another inevitable round of appeals is, we suggest, not in the best interest of either the entrapment defense or the administration of justice.
The opinion of Chief Justice Cavanagh, to a limited extent, and that of Justice Boyle, to a greater extent, concern us the most in their efforts to strip the importance of the causality element from the entrapment defense by recognizing that some reprehensible conduct may amount to entrapment without considering the effect on a hypothetical normally law-abiding person. As has been stated by all of us in one way or another, the historical purpose of the entrapment defense is to abate the use of police practices that, in the words of Justice Potter Stewart, a champion of the objective test, are "likely to instigate or create a criminal offense” — not those we do not like, not those that are ineffective, not those that are distasteful. United States v Russell, 411 US 423, 441; 93 S Ct 1637; 36 L Ed 2d 366 (1973) (Stewart, J., dissenting). Once the "instigation” component is severed, as my colleagues’ opinions would propose, it will, in our view, embark the courts of this state on a review of "all police conduct that can or will in the future, on the basis of the shock level of an individual jurist, be considered 'reprehensible.’ ” Jamieson, 436 Mich 76.
In response to Justice Boyle’s claim that we are altering the objective test for entrapment in these cases, we respectfully note that Justice Boyle signed an opinion, only one year ago, which not only endorsed continued adherence to the objective test, but stated "that there is some overlapping in application between the two tests [objective and subjective] and that the best of each can, to some extent, be utilized.” Jamieson at 79. Similarly, the assertion that we have, in these cases, adopted the "defendant’s circumstances” as a new standard for evaluating the claim of entrapment is simply not true. In Jamieson we stated:
When applying the objective test, consideration is given to the willingness of the accused to commit the act weighed against how a normally law-abiding person would react in similar circumstances. [Id. at 74. Emphasis added.]
Therefore, we are clearly not departing from the current jurisprudence which this Court has espoused; any implication to the contrary by Justice Boyle is an incorrect characterization or interpretation of our opinion.
Finally, we are at a loss to understand the need for an evidentiary hearing in either case at bar. Defendant Brown chose not to testify at his entrapment hearing, knowing that he had the burden of proof under existing law. In Juillet, as Justice Boyle acknowledges, the "extensive testimony” did not produce evidence that would satisfy her proposed test for a finding of entrapment. Post, p 105. Furthermore, there is no indication that either Brown or Juillet were denied admission of any evidence, and it would be remarkable if these defendants had not put forth any available evidence which demonstrated either reprehensible police conduct or instigation of the criminal activity and their vulnerability to it. Both of these factors loom heavily in all existing and proposed tests for entrapment.
Whatever error was committed by the lower courts in analyzing the evidence produced for the record, it represents error of law, correctable in the appellate courts, thus not justifying a remand to the trial court for further evidentiary hearings.
IV. APPLYING THE ENTRAPMENT TEST
We note that when the defense of entrapment is raised, the trial court must conduct an evidentiary hearing outside the presence of the jury. D’Angelo, 401 Mich 183. During this hearing, the defendant will have the burden of proving by a preponderance of the evidence that he was entrapped. Id. at 182. In its decision, the trial court must make specific findings of fact on the entrapment issue, and its decision will be reviewed under the clearly erroneous standard. Id. Only when the defendant can prove that the government agents engaged in activities that would impermissibly manufacture or instigate a crime will the defense of entrapment prevail. People v Jones, 165 Mich App 670, 676-677; 419 NW2d 47 (1988).
A. PEOPLE V BROWN
Initially, we note, as did the Court of Appeals, the unusual nature of this case. We are faced with a situation where the defendant did not testify at the requested Turner hearing. Therefore, in reviewing this investigation, we must accept the testimony presented by the prosecutor’s witnesses and attempt to determine whether a preponderance of the evidence exists to support the defendant’s claim that he was entrapped.
As did the lower courts, we find most troubling and offensive such a misuse of a citizen — the informant — to whom the prosecution is purporting to be helpful. However, our distaste of such behavior toward the informant cannot deter us from the task of determining whether the use of the infor mant in this fashion had the effect of causing one not otherwise disposed to commit a crime to do so.
Brown should clearly be denied relief under this analysis. It is simply too much to suggest that one not ready and willing to commit a crime, a normally law-abiding person, would respond positively to the conduct of the police here. The investigators did not manufacture any crime, but only, according to the testimony presented, allowed a course of conduct to continue as it had in the past to obtain evidence of a crime. While the investigators’ strategy of using a drug-addicted prostitute to gather evidence of the sale of drugs is offensive, a simple contact by a prostitute to exchange sex for drugs would not successfully importune a normally law-abiding person to deliver drugs to the prostitute.
The relationship constituting the exchange of drugs for sexual favors was the backdrop in which Brown acceded to Roberts, the prostitute-turned-undercover informant. Each knew what was expected of the other. There were no misunderstandings. The only question would be the defendant’s willingness to continue the alleged criminal activities. At the time in question, the time of contact between Roberts and Brown, the solicitation was no different than the many offers made in routine purchases and sales by police informants and undercover agents every day on our streets.
Unlike other cases which have found that the defendant was entrapped, there is no suggestion that in the several calls made by Roberts there was any play on sympathy or friendship. People v Graczyk, 156 Mich App 632; 402 NW2d 60 (1986); People v Duis, supra; People v Soper, 57 Mich App 677; 226 NW2d 691 (1975). To be sure, there was an appeal to whatever addictions were borne by the defendant, as there was an appeal by Brown to the addictions of Roberts. Addictions are at the root of the narcotic trade and are not a lawful excuse for crimes committed in their furtherance. Although courts have found that appeals to sympathy for an addict suffering withdrawal symptoms may indicate entrapment, Graczyk, Duis, supra, we know of no other court that has suggested, nor would we suggest, that an appeal to an addiction, as such, can be a defense amounting to entrapment.
Entrapment may also be recognized when unusual pressures are placed on the person to succumb to drugs after rehabilitation, when coupled with an appeal to some other factor recognized as an indicator of reprehensible conduct such as sympathy or friendship. See Turner, supra. Brown has not testified, nor has he argued, that he was addicted to drugs or that he was attempting to overcome an addiction. Furthermore, it was not drugs which he was seeking in his ongoing relationship with Roberts.
Courts in other jurisdictions have recognized pressure on the informant as a factor supporting an entrapment defense. See, e.g., Shrader v State, 101 Nev 499; 706 P2d 834 (1985); Commonwealth v Wright, 396 Pa Super 276; 578 A2d 513 (1990). And, in fact, the pressure in this case was on the informant, reinforced by substantial efforts of assistance in solving her problems. We think that the pressure on an informant, while perhaps offensive in its execution, does not amount to pressure on the defendant and does not change the context in which we judge whether the hypothetical or the actual defendant was entrapped.
While there was not a great deal of pressure on the defendant, there was some pressure. Roberts did call Brown to arrange meetings between them. Roberts was also the person who always brought up the use of drugs during discussions. Brown, on some occasions, did protest the informant’s appeals, saying he was "busy” and that he did not want to be bothered. Indeed, it sometimes took Roberts several calls before Brown would let her come over to his apartment. However, this pressure did not rise to the level of entrapment. It should be noted that the very first contact between Roberts and Brown, after the thirty-day lapse in communications, ended with Brown agreeing to see Roberts and exchange sex for drugs. One telephone call does not rise to the level of pressure necessary to support an entrapment claim. Furthermore, even Roberts’ offer to repay Brown does not support his entrapment claim. While evidence on the record does show that the investigators thought Brown might not see her without the money, this evidence does not indicate that Brown would otherwise have refused to see her or otherwise ended their relationship and does not meet Brown’s burden to show entrapment.
As previously indicated, other cases have set forth sexual favors as a factor arguing for the availability of the entrapment defense. See Jamieson, supra; People v Wisneski, 96 Mich App 299; 292 NW2d 196 (1980). However, as the facts of the instant case indicate, the Attorney General’s office asked this particular informant to resume contact with Brown, it did not initiate the relationship between the informant and defendant, but only allowed an already existing course of conduct to continue, which the police had reason to believe involved criminal behavior. Not only was this relationship already in existence, but there exists no preponderating evidence to show that the conduct would not have occurred except for the government’s intervention. This police conduct would not have induced a similarly situated defendant, who was not otherwise ready and willing to commit the criminal behavior, to commit such an offense. Therefore, we must find that Brown was not entrapped. His convictions, and the judgment of the Court of Appeals on the question of entrapment, should be affirmed.
B. PEOPLE v JUILLET
In this case, we must again undertake a separate analysis of the facts and circumstances presented by the defendant to determine whether the police conduct would have induced or instigated the commission of the crime with which Juillet is charged by a normally law-abiding person. In undertaking this analysis, we again note that the burden is on the defendant to prove by a preponderance of the evidence that he was entrapped by reprehensible police conduct. D’Angelo, supra. Here, as in Brown, the police were willing to stand by and allow criminal activity to be undertaken by their paid informant. Unlike Brown, however, in this case the police encouraged and were responsible for the instigation of a relationship that previously did not exist and, in the course of doing so, played on a police-manufactured friendship. For that reason, which we find to distinguish these two cases, we find reprehensibility amounting to entrapment.
In this situation, we are again cognizant that the defendant frequently used drugs. We must determine whether the facts and circumstances involved in this case would indicate that a normally law-abiding person in Juillet’s circum stances would be induced into committing the crime charged because of the actions of the police through their paid informant.
The record indicates that Bleser incessantly requested drugs from all those around him, including Juillet. The record also indicates that on at least one occasion, when Juillet could not obtain drugs for the undercover officer and Bleser, the undercover officer drove Bleser and Juillet to at least two other places before Juillet was able to obtain drugs for the undercover officer. Additionally, contrary to the facts in Brown, the police did not focus on Juillet as a specific target, the police did not supervise Bleser’s activities, and Juillet, a drug user, was convicted for the elevated crime of delivery and sale of narcotics. Duis, supra at 702. See also People v Rowell, 153 Mich App 99; 395 NW2d 253 (1986) (continuous requests at least two to three times per day to obtain drugs were considered entrapment). Therefore, these factors weigh in favor of Juillet’s claim that he was entrapped by reprehensible police conduct.
Unlike Brown, the defendant here took the stand during a Turner hearing and presented his version of the facts. The record that was prepared indicates that Juillet felt he was Bleser’s friend and that he obtained drugs for Bleser because of that friendship. The record also indicates that Bleser stated, on a number of occasions, that he needed to obtain drugs for friends who were coming to visit from another city. This evidence indicates, taking into account Juillet’s testimony, that there was indeed an appeal to friendship.
Although the friendship between Bleser and Juillet does not cover a period of years, see People v Hentkowski, 154 Mich App 171, 174-175; 397 NW2d 255 (1986) (mere acquaintance is insufficient to support a claim of entrapment), the friendship lasted several months and they saw each other on a daily basis. The testimony at the Turner hearings indicated that Bleser did favors for Juillet, took Juillet out to eat, and had Juillet over to his apartment on numerous occasions. Bleser even met Juillet’s parents. These actions would more strongly indicate a friendship to a person of defendant’s age and limited education, if not a dependency, than they would to an average person. See People v Mulkey, 153 Mich App 737; 396 NW2d 514 (1986). Thus, Juillet’s claim of an appeal to his friendship with Bleser is supported by the record.
There also existed police procedures that seemed to escalate Juillet’s criminal culpability. The evidence indicated that Juillet was a former and current user of drugs; however, the testimony at the hearings indicated that there was no knowledge by the police, Bleser, or anyone else on the record that Juillet was ever a drug dealer. The evidence also showed that Bleser requested Juillet to find drugs for him on numerous occasions and persuaded Juillet to set up drug transactions with other parties, himself and an undercover officer.
We note that courts have found, under either the objective or the subjective test of entrapment, that when a drug user is convicted for the sale of drugs where no evidence exists that police had knowledge that the defendant was a drug dealer, the defendant was entrapped. Shrader, supra at 502-504; State v Soroushirn, 571 P2d 1370 (Utah, 1977). Although only one of many factors to con sider, Juillet’s criminal pattern was escalated from that of use or possession of drugs to the delivery of drugs, unlike the circumstances presented in Brown. In this case, the police sent Bleser on a fishing expedition to find "dealers,” and the arrest of Juillet occurred when neither Bleser nor the police had any reason to believe that Juillet was actually selling drugs. This situation is the opposite of that in Brown, in which the investigators had reason to believe that the crimes charged were actually being committed. This factor also tends to- support Juillet’s claim of reprehensible police conduct.
A prior alleged sale of drugs made by Juillet does not require a contrary conclusion. The alleged sale was also a situation where Bleser asked for a marijuana cigarette, was given one by Juillet, and then Bleser paid Juillet back for the cigarette without being asked for any payment. This situation simply indicates a drug user being "sociable” with another drug user as part of a friendship. At the most, this evidence shows that, under the circumstances as objectively determined, Juillet was only a drug user.
It also seems insignificant that Juillet knew drug dealers in the area. As noted by the prosecution and the defense, there was a general "subculture” in the area and the people in that subculture would seemingly have general knowledge of the ongoing activities and of the persons involved in those activities. Therefore, it seems clear that Juillet was not a drug dealer and that the only reason for his delivery of drugs to Bleser was the incessant requests by Bleser and the other activities undertaken by Bleser to induce Juillet into committing the crime._
We do not understand why the trial court differentiated between the March 2 and the March 24 charges. The circumstances did not change significantly, and the fact that Bleser did not personally participate in the March 2 delivery is not controlling. There were incredible appeals to the "friendship” that existed between Bleser and Juillet, and also appeals to Juillet’s sympathy to obtain drugs for Bleser’s friends when they came to visit. In fact, all occasions on which delivery charges were brought involved requests by either Bleser or an undercover officer,
The circumstances in this case establish to our satisfaction the likelihood that a normally law-abiding person, similarly situated to Juillet and not otherwise disposed to the sale of drugs, would have been induced by the investigative techniques here employed.
V. SUMMARY AND CONCLUSION
Under the objective test of entrapment, we find that the Court of Appeals was not clearly erroneous in concluding that defendant Brown was not entrapped. Considering the circumstances surrounding this investigation and the knowledge under which they were operating, the investigators’ conduct would not have instigated or manufactured criminal behavior by a normally law-abiding person. Their conduct merely presented an opportunity for the defendant to continue an illicit relationship.
However, we find that Juillet was, indeed, entrapped. We find that a normally law-abiding person in his circumstances would likely be induced into committing a crime by the situation the police informant presented in this case.
Therefore, we would affirm defendant Brown’s conviction and would reverse defendant Juillet’s conviction.
Riley and Griffin, JJ., concurred with Brickley, J.
Because of the excellent factual review by Judge Beasley in the Court of Appeals, most of this history is taken from his opinion. See 163 Mich App 273, 279; 413 NW2d 766 (1987). We have only added facts and citations to the record where necessary.
In this instance, it was thirty days between contacts; however, during their relationship, there were interruptions of longer duration.
Testimony during a Turner hearing indicated that although Kalder did not give Roberts any syringes, Kalder allowed her to carry a syringe into Brown’s apartment on at least two occasions so that Roberts could inject cocaine in a manner in which she had normally done it. People v Turner, 390 Mich 7; 210 NW2d 336 (1973).
All of the activities used to aggrandize the relationship between the informant and the defendant were not pinpointed in time as they affected each charged offense. We glean from the record that those events were pervasive and continuous from the day that the defendant and Bleser met.
We do not intend to make the entrapment defense simply a "but for” causation analysis. As we indicated earlier, where the defendant is only given the opportunity to commit a crime, no entrapment exists. Ante, pp 52-53.
The Jamieson opinion was signed by Justices Brickley and Boyle, and Chief Justice Riley, and concurred in by Justice Griffin, who expressed in a separate writing his preference for the subjective entrapment test, but nonetheless stated, "In the meantime, while a Court majority persists in using the so-called objective test for resolution of entrapment claims, I wish to make clear that I prefer, and associate myself with, the version of that test articulated by Justice Brickley.” 436 Mich 99.
Only in narrow and specified situations is the remedy for police misconduct the overturning of a conviction otherwise lawfully obtained. Again, it is not the function of the entrapment defense to deter all police abuse against all persons in all situations. Its purpose is to deter the manufacturing of crime that would not otherwise be committed by a normally law-abiding person.
In Jamieson, supra at 90, we implied that escalation of criminal culpability was an indication of entrapment.
We also note that this is not a case where the government’s furnishing of narcotics was for the purpose of trying to escalate the criminal culpability of defendants [citing People v Killian, 117 Mich App 220; 323 NW2d 660 (1982)].
This fact is another example of how the police conduct differed from that in Jamieson. "Further, it was not a fishing expedition, unrelated to specific targets.” Id. at 91. | [
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Per Curiam.
On August 12, 1979, defendant was convicted by jury of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm in the commission of the felony, MCL 750.227b; MSA 28.424(2). Sentenced on October 4, 1979, to six months imprisonment on the felonious assault charge and two years on the felony-firearm charge, defendant appeals of right.
The assault took place after the complaining witness, owner of a Saginaw barber shop, forcefully escorted defendant out the barber shop door for being disorderly. Soon thereafter, defendant returned with a shotgun and fired two shots through the shop window. One shot grazed the complaining witness who was taken to Saginaw General Hospital where the injury was found to be minor. Defendant testified that on the day of the incident he had been drinking heavily, that he aimed his gun at the ceiling of complainant’s shop, and that at no time did he intend to injure the complainant. The trial judge’s instructions to the jury did not include a statement that felonious assault is a specific intent crime.
The initial question posed on appeal is whether the trial court committed reversible error when instructing the jury on the elements of felonious assault, by failing to specifically state that, in order to be found guilty, defendant must have had either an intent to injure or an intent to put the victim in a reasonable fear or apprehension of an immediate battery. Defense counsel failed to object to the omission by the trial court.
Prior to People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), felonious assault was not a specific intent crime. People v Jordan, 51 Mich App 710, 718; 216 NW2d 71 (1974). In Joeseype Johnson, the Supreme Court ruled for the first time that a jury instruction on felonious assault is deficient unless it clearly informs the jury that "there must be an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery”. 407 Mich 196, 210. The trial court’s instructions referred to intent in defining "a dangerous weapon”. But this fleeting reference to intent is hardly the meaningful explanation mandated by Joeseype Johnson. Nowhere in the instructions did the court explain intent as specified by the Joeseype Johnson memorandum opinion. Consequently, reversible error did occur unless Joeseype Johnson is deemed prospective only.
The instant case was tried in August, 1979, and Joeseype Johnson was decided ten weeks later on October 29, 1979. Clearly, the trial court did not have the benefit of the Joeseype Johnson ruling. The crucial question is whether Joeseype Johnson clarifies existing law and consequently is retroactive in application or whether the holding is only prospective under the principles announced in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). On this issue two panels of this Court have come to opposite conclusions. In People v Starghill, 99 Mich App 790, 792; 298 NW2d 641 (1980), this Court held:
"However, Joeseype Johnson was decided on October 29, 1979, after defendant’s conviction. We decline to apply it retroactively in these circumstances. See People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). Therefore, we review the trial court’s decision under prior law.”
On the other hand, when faced with the identical issue a different panel of this Court concluded in People v Szymanski, 102 Mich App 745, 747; 302 NW2d 316 (1981):
"We agree that Joeseype Johnson constitutes a restatement and clarification of previously-existing Michigan case law and is therefore fully applicable to the instant case. No problem of limiting the application of a new rule of law arises under such circumstances. People v Kamin, 405 Mich 482, 494; 275 NW2d 777 (1979).”
We are persuaded that the better logic is expressed in Starghill. Our conclusion is reinforced by the fact that, in the instant case, no exception was taken at trial to the court’s failure to instruct the jury that felonious assault was a specific intent crime. Under such circumstances, it is not necessary to decide whether Joeseype Johnson should be given retroactive application.
Finally, we have reviewed the transcript of the sentencing hearing and agree with defendant that neither defendant nor his counsel were given an opportunity to allocute prior to sentencing as required by GCR 1963, 785.8(2) and 785.9. On this point, the brief of the prosecution agrees and states that resentencing is required so that the comments of the defense may be placed on record.
Affirmed as to the convictions and remanded for resentencing.
"The manner in which an instrument is used or intended to be used in an assault determines whether or not it is a dangerous weapon. If an instrument is used in a manner likely to produce serious physical injury or death, it is a dangerous weapon. It is for you to determine from all the facts and circumstances disclosed by the evidence whether the shotgun in question here was a dangerous weapon.” (Emphasis supplied.)
There were three separate opinions in Joeseype Johnson, viz.: a memorandum opinion, a concurring opinion, and a dissent. Seven justices signed the memorandum opinion, and at least four justices concurred in every statement of the memorandum opinion.
See People v Kamin, 405 Mich 482, 494; 275 NW2d 777 (1979). | [
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Mackenzie, P.J.
On April 10, 1975, Cheryl A. Holmes, an insured of plaintiff, State Farm Mutual Automobile Insurance Company, was severely and permanently injured when an automobile which she was driving struck a train of the Soo Line Railroad Company in Chippewa County, Michigan.
Pursuant to the applicable policy of insurance and the no-fault act itself, State Farm began paying Mrs. Holmes "allowable expenses”, MCL 500.3107(a); MSA 24.13107(a), consisting of medical and rehabilitation expenses, and "work loss” benefits, MCL 500.3107(b); MSA 24.13107(b). As of the date the complaint was filed in the instant case, State Farm had paid $5,032.61 for allowable expenses and $9,687.51 for work loss benefits, for a total of $14,720.12. Mrs. Holmes claimed that State Farm owed her $23,695 for additional allowable expenses for medical treatment.
On November 14, 1975, an action was commenced in the United States District Court for the Western District of Michigan, captioned "Gerald A. Holmes and Cheryl Holmes v Soo Line Railroad Company and Chippewa County Road Commission, jointly and severally”. The complaint alleged that the railroad crossing at which the accident occurred was under the jurisdiction of defendant road commission and that the negligence of defen dant railroad company and defendant road commission, in various respects, was the proximate cause of Mrs. Holmes’s injuries. The complaint sought damages for expenses of "travel, physicians and surgeons, hospitalization, drugs, sedatives, artificial devices * * * nursing care, loss of wages * * * and other and further special damages”.
The federal court action was settled in November of 1978 for $195,000. A stipulation for dismissal was signed by all parties on November 17, 1978, reflecting compensation to Gerald A. Holmes in the amount of $20,000 for loss of consortium and to Cheryl A. Holmes for pain and suffering and impairment to wage earning capacity in the amount of $175,000. The stipulation further recited that the moneys reflected in the judgment did not reimburse the Holmes’s for hospital or medical expenses or for any of the benefits received from State Farm. An order dismissing was signed and entered by the Honorable Noel P. Fox on November 28, 1978.
No payments of any kind were made to State Farm by the defendants, nor was State Farm made a joint payee on the defendants’ drafts.
This action was commenced on May 24, 1979, by the plaintiff, State Farm, for reimbursement of personal protection benefits under MCL 500.3116; MSA 24.13116. Both defendants filed motions for accelerated and/or summary judgment, based on § 3116 of the no-fault act. Following a hearing, the trial court granted both motions for accelerated judgment, holding that § 3116, as amended by 1978 PA 461 (immediately effective October 16, 1978), applied to this action, and that this action was, therefore, barred because the original tort claim from which reimbursement was sought did not arise from an accident occurring outside Michigan, an accident involving an uninsured vehicle, or an accident involving intentional harm.
The trial judge further held that even if the original version of § 3116 applied, no allocation of the tort claim settlement between personal protection insurance type benefits (e.g., pain and suffering) was possible, and, therefore, reimbursement to the personal protection insurer for personal protection insurance benefits was impractical or impossible.
A stipulation and order allowing an amendment to the complaint to allege the uncollectibility of the Holmes’s was entered on November 28, 1979. An order for accelerated judgment on behalf of both defendants was entered on November 29, 1979. Appeal was taken as of right from that accelerated judgment.
MCL 500.3116; MSA 24.13116, as originally enacted by 1972 PA 294, provided, in pertinent part:
"(1) * * * after recovery is realized upon a tort claim * * * [i]f personal protection insurance benefits have already been received, the claimant shall repay to the insurers out of the recovery a sum equal to the benefits received * * *.
"(2) A personal protection insurer with a right of reimbursement under subsection (1), if suffering loss from inability to collect reimbursement out of a payment received by a claimant upon a tort claim is entitled to indemnity from a person who, with notice of the insurer’s interest, made such a payment to the claimant without making the claimant and the insurer joint payees as their interests may appear or without obtaining the insurer’s consent to a different method of payment”.
This section was substantially amended by House Bill 5925, enacted as 1978 PA 461, immedi ately effective on October 16, 1978. The relevant amended portion states as follows:
"(2) A subtraction from or reimbursement for personal protection insurance benefits paid or payable under this chapter shall be made only if recovery is realized upon a tort claim arising from an accident occurring outside this state, a tort claim brought within this state against the owner or operator of a motor vehicle with respect to which the security required by section 3103(3) and (4) and was not in effect, or a tort claim * * * to persons or property * *
Clearly, the language of the 1978 amendment allows no recovery in an action such as this, because Mrs. Holmes’s tort claim did not arise from an out-of-state' accident, an uninsured driver, or an intentional act.
Defendants argue that the amended version of § 3116 should be applied retroactively. We agree with other panels of this Court that the Supreme Court, in Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich 477; 274 NW2d 373 (1979), implicitly ruled that §3116 of the no-fault act is not to be applied retroactively. Schwark v Lilly, 91 Mich App 189; 283 NW2d 684 (1979), Auto-Owners Ins Co v Employers Ins of Wausau, 103 Mich App 682; 303 NW2d 867 (1981).
Accordingly, we find that the trial court erred when it ruled that the amended version of § 3116 was to be applied retroactively.
We must next determine whether § 3116 of the no-fault act, as originally enacted, allows reimbursement of personal protection insurance benefits where the tort action out of which reimbursement is sought arose out of the insured’s claim against a railway company and a road commission when the automobile which she was driving struck a train.
The plaintiff argues that the insured’s tort claims against the railroad and the road commission did not arise from those entities’ ownership, maintenance, or use of a motor vehicle; therefore, the insured’s third-party claim was not limited by the language of § 3135 of the no-fault act. Thus, the insured, who sued for both economic and noneconomic damages, could have a valid basis for the recovery of both. MCL 500.3135; MSA 24.13135 provides:
"(1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered. death, serious impairment of body function, or permanent serious disfigurement.
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by section 3101(3) and (4) was in effect is abolished except as to:
"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his or her act or omission, the person does not cause or suffer such harm intentionally if he or she acts or refrains from acting for the purpose of averting injury to any person, including himself or herself, or for the purpose of averting damage to tangible property.
"(b) Damages for noneconomic loss as provided and limited in subsection (1).
"(c) Damages for allowable expenses, work loss, and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly, and 3-year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured.
"(d) Damages up to $400.00 to motor vehicles, to the extent that the damages are not covered by insurance. An action for damages pursuant to this subdivision shall be conducted in compliance with subsection (3).
We agree with plaintiff that the foregoing section of the no-fault act does not limit the liability of the railroad company and the road commission since their liability is not caused by their ownership, maintenance, or use of a motor vehicle. As our Court determined in Schwark, supra, that the liability of the dramshop defendants did not arise out of the ownership, maintenance, or use of an automobile, but arose under the provisions of the dramshop act, we find the present facts address a type of tort liability outside the intended scope of the no-fault act. Defendants’ common-law and statutory liability for economic and noneconomic damages was not affected by the no-fault act.
Since the liability of the defendants is outside the intended scope of the no-fault act, the claim of plaintiff’s insured was not limited to the requirements of § 3135, and the settlement could have included both economic and noneconomic damages.
While the ability of the insured to proceed in tort against the railroad and road commission is not limited by the provisions of § 3135, the plaintiff’s insured had received personal protection benefits at the time she settled her claim against defendants herein for her "claim in tort based on the same accidental bodily injury”. MCL 500.3116; MSA. 24.13116. The federal court complaint requested damages for economic loss. The settlement releases very specifically disavowed any payment,, however, for economic losses. Also executed as a part of the settlement agreement was a "hold harmless” agreement by which defendants indem nified plaintiffs insured for any liability to her insurer, plaintiff, State Farm.
The question, then, is does the admonition in Workman followed by Schwark and Auto-Owners that § 3116 be construed in light of § 3135 have the result that the reimbursement provision of § 3116 has no applicability to a third-party recovery where the third-party liability arises outside the scope of the no-fault act? We think not. Although Workman held that § 3116 should be construed in light of § 3135, it has never been held that § 3116 is only applicable to § 3135 recoveries. The rule announced was that "an insurance carrier paying personal injury protection benefits is entitled to reimbursement from the tort recovery of a person injured as a result of a motor vehicle accident only if, and to the extent that, the tort recovery includes damages for losses for which personal protection benefits were paid”. Workman, supra, 510. The stated purpose of this rule is "to prevent double recovery’’. Id.
To hold that §3116 has no applicability to a third-party recovery where the third-party liability arises outside the scope of the no-fault act would allow the possibility of double recovery to the motorist receiving injury through actions of a third-party tortfeasor whose liability does not arise out of the ownership, maintenance, or use of a motor vehicle.
The amendment of § 3116 limits the applicability of the reimbursement provision. However, under Workman, plaintiffs insured could have made a recovery of settlement which would have reimbursed the no-fault carrier as contemplated for benefits paid out for economic losses and made the insured whole as well, because there is no conflict between §§ 3116 and 3135 as applied to the facts of this case. This reimbursement of the no-fault insurer and compensation of insured for the remain ing damages would have been in keeping with the intention of the no-fault act to limit double recovery by the claimant and the resulting duplication of payments for the same loss by insurers.
Plaintiffs insured here did not proceed to judgment, however; the case was settled with all the parties in the federal district court suit stipulating that all of the award compensated noneconomic damages. The settlement of lawsuits is desirable and to be encouraged, and we are reluctant to look behind the expressed intent of the parties.
However, when the injured party stipulates to a settlement which does not reimburse the no-fault insurance company in a case where the cause of action is not limited by the provisions of § 3135, the reimbursement provisions of § 3116 may be avoided, frustrating the overall objective of the no-fault act to reduce payment of claims. Subsection (2) of § 3116 clearly intended that the third-party tortfeasor payor (here, defendant railroad and defendant road commission) who pays the injured claimant with notice that the claimant has received personal protection benefits from the payor has the duty to reimburse the no-fault carrier. The record indicates that the defendants did have notice of State Farm’s claim here.
Nevertheless, we conclude that the preferable result under these facts is to give literal effect to the terms of the settlement agreement, accepting the recitation of the parties to the federal court suit, that the payment by the defendants to plaintiffs insured was made solely for noneconomic losses. Plaintiff, then, has no "right of reimbursement under subsection (1)” of § 3116 and the indemnification provisions of subsection (2) are inoperable. Our analysis differs from that of the trial judge, and the case is affirmed on other grounds.
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] |
Danhof, C.J.
These appeals stem from a medical malpractice action commenced by plaintiffs on March 31, 1975. Two amended complaints were subsequently filed and the nature of the action changed as parties defendant were added and dropped and different theories of liability were presented. When the case stood ready for trial in the spring of 1979, the parties consisted of plaintiffs Gloria and Dennis Eisbrenner, husband and wife, in their own behalf and as representatives of their infant daughter Kari Ann Eisbrenner, and defendant William Frederick Stanley, D.O. Plaintiffs claimed that Kari Ann was born severely deformed because her mother had contracted rubella (German measles) during her pregnancy. They alleged that Dr. Stanley negligently failed to diagnose Mrs. Eisbrenner’s rubella, despite the fact that he had seen test results which indicated she had contracted the disease, and that he negligently failed to warn plaintiffs of the possibility that the child would be born with rubella-caused defects. Plaintiffs contended that had defendant acted properly, he would have informed them of the risk during the first trimester of Mrs. Eisbrenner’s pregnancy and the family would have decided upon an abortion rather than taking a chance on birth defects. The parents sought damages for mental distress and costs of the child’s treatment. Damages were requested on behalf of the child for pain and suffering. Kari Ann had lived for over five years and died shortly before trial. The plaintiffs’ complaint also alleged that Dr. Stanley had negligently delayed delivery of the child; this claim was abandoned at trial.
On April 19, 1979, defendant moved for partial summary judgment pursuant to GCR 1963, 117.2(1), claiming that the child’s claim based on a "wrongful life” theory and the parents’ claims for emotional trauma and expenses did not give rise to any damages cognizable at law. On May 10, 1979, the trial court issued an opinion granting summary judgment in favor of defendant as to the child’s cause of action but denying the motion as to the parents’ claims. The case proceeded to trial and on May 22, 1979, the jury returned a verdict of no cause of action. Plaintiffs’ motion for new trial was denied and appeals to this Court followed.
In Docket No. 46108, the plaintiff parents appealed, alleging that a number of errors mandating reversal occurred during trial. Defendant cross-appealed, claiming that the trial court erred in denying his motion for summary judgment as to the parents’ cause of action. Defendant also raised one issue alleging error at trial. In Docket No. 46109, the parents appealed in their capacities as representatives of the deceased child, claiming that the trial court erred in granting the defense motion for summary judgment as to the child’s cause of action.
We first address the issues raised in both appeals concerning the propriety of the trial court’s rulings on the summary judgment motion. In holding that the plaintiff child had no cause of action, the court stated:
"There is apparently no remedy in favor of the afflicted child for having been born under a mental , or physical handicap where the alternative to such status is not to be born at all. A Plaintiff has no remedy against a Defendant whose sole offense is that he failed to consign the Plaintiff to oblivion.”
However, the court ruled that the parents had stated a valid cause of action based in part upon the defendant physician’s duty to disclose his disgnosis and inform the mother of the risks involved in continuing the pregnancy. Plaintiffs were held entitled to damages for both medical expenses and mental distress if they could prove their allegations. The court did state that defendant was under no duty to give counselling on the possibility of a eugenic abortion.
Michigan courts have not dealt directly with the types of actions presented in the instant case, which have sometimes been classified under the labels of "wrongful life” or "wrongful birth”. Our analysis of the decisions in other jurisdictions begins with Gleitman v Cosgrove, 49 NJ 22; 227 A2d 689 (1967), where the majority barred recovery by both the parents and the child. The Court first ruled that the damages claimed on behalf of the child were not really cognizable because any determination of such damages required an impossible value comparison between the child’s life with birth defects and nonexistence due to abortion. The Court utilized the same type of logic in denying the parents’ claim, stating that it was impossible to evaluate the human benefits of parenthood and to weigh such benefits against the alleged emotional and pecuniary injuries. The decision was also based on a public policy consideration whereby the majority viewed recognition of a cause of action for either the parent or the child as contrary to a policy favoring the preciousness of human life.
The Gleitman analysis relating to the child’s cause of action has been followed by other courts. See Stewart v Long Island College Hospital, 35 App Div 2d 531; 313 NYS2d 502 (1970). However, the parents’ cause of action has been recognized. Dumer v St Michael’s Hospital, 69 Wis 2d 766; 233 NW2d 372 (1975), Jacobs v Theimer, 519 SW2d 846 (Tex, 1975). In Jacobs, the Court reversed a summary judgment in favor of the defendant physician, whose alleged negligence was predicated upon his failure to diagnose rubella during the first trimester of the mother’s pregnancy and advise her of the risks to the unborn child. The Court stated that it was impossible to justify a policy which deprived the parents of information by which they could elect to terminate the pregnancy likely to produce a defective child, required that the pregnancy be continued until a deficient child was born and then denied recovery from the tortfeasor of the costs of treating and caring for the defects of the child. The Court allowed recovery of medical expenses but refused to permit damages for emotional suffering on the ground that determination of the latter involved impermissible speculation as to the pluses and minuses of parental mind and emotion.
In Becker v Schwartz, 46 NY2d 401; 413 NYS2d 895; 386 NE2d 807 (1978), the Court allowed the parents of the deformed child to maintain a wrongful birth action but, as in Jacobs, limited the allowable damages by refusing to permit recovery for emotional suffering. The Court found the problem of determining damages fatal to the child’s cause of action, stating: .
"The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. * * * Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant’s parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant’s negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant’s parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, therefore depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. * * * Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant’s damages is best reserved for legislative, rather than judicial, attention.” 46 NY2d 412 (citations omitted).
The New Jersey Supreme Court, in Berman v Allan, 80 NJ 421; 404 A2d 8 (1979), partially retreated from the position it had taken in Gleitman v Cosgrove, supra, by recognizing the parents’ cause of action for wrongful birth. The child in Berman was born with Down’s syndrome and an action was brought by the parents and child claiming that the defendant physicians were negligent in failing to inform the mother of the availability of a testing procedure called amniocentesis, which allegedly would have revealed the existence of the genetic defects early in the pregnancy. The plaintiffs claimed injury because the mother was deprived of the option of deciding whether to have an abortion. The majority rejected the idea that the child possessed an independent cause of action, based on public policy favoring life with physical handicaps over non-life. However, in upholding the parents’ right to maintain the action, the Court noted that their decision whether or not to seek an abortion during the first trimester of pregnancy was not subject to state interference, citing Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). Gleitman v Cosgrove had predated Roe v Wade. The majority stated that the parents could recover damages for emotional distress.
Other cases recognizing the parents’ cause of action but not that of the infant under similar factual circumstances include Gildiner v Thomas Jefferson University Hospital, 451 F Supp 692 (ED Pa, 1978), and Speck v Finegold, 268 Pa Super Ct 342; 408 A2d 496 (1979). There is a California case in which the child’s cause of action for wrongful life was recognized. In Curlender v Bio-Science Laboratories, 106 Cal App 3d 811; 165 Cal Rptr 477 (1980), the child was born with Tay-Sachs disease, a genetic disorder. An action was brought in behalf of the child (the parents brought a separate action) and the complaint alleged that the defendant laboratories erred in performing and interpreting tests which were designed to reveal whether the parents carried genes which would result in their children being born with Tay-Sachs disease. The lower court sustained defendants’ demurrer but the Court of Appeals reversed, holding that the child could bring the action and seek damages for pain and suffering and costs of medical care and punitive damages. The Court recited a number of factors supporting its decision, including a public policy to encourage proper medical practice in the field of genetic counselling and the principle that there should be a remedy for every wrong committed. The Court dealt with the troublesome damages issue as follows:
"The circumstance that the birth and injury have come hand in hand has caused other courts to deal with the problem by barring recovery. The reality of the 'wrongful-life’ concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all. The certainty of genetic impairment is no longer a mystery. In addition, a reverent appreciation of life compels recognition that plaintiff, however impaired she may be, has come into existence as a living person with certain rights.” 106 Cal App 3d 829; 165 Cal Rptr 488. (Emphasis in original.)
We are not persuaded by the reasoning in Cur-lender. The defendants in that case could not have prevented the genetic defects; the only alternative for the child was nonexistence due to abortion. When only two states are possible, measurement of damages allegedly resulting because one state occurred of necessity requires comparison with the only other alternative in determining whether there was a legal detriment. In the instant case, the child’s claim for damages assumes she suffered a detriment by being born defective instead of being aborted. We believe the comparison between nonexistence and deformed life is necessary but impossible to make and juries should not be allowed to speculate on the child’s damages. Recognition of the child’s cause of action would turn the courts into forums for pure gambling events, since damage awards could range from zero to millions of dollars based on essentially the same evidence. It would make as much sense to award damages based on a throw of the dice. We follow the reasoning in Becker v Schwartz, supra, and affirm the trial court’s decision not to allow the child’s action.
The parents’ claims in the present case do not involve the impossible comparison discussed above. Defendant argues that the element of proximate cause was lacking because his alleged negligence did not cause the child’s abnormalities and no treatment existed which could have prevented them. However, this argument misconstrues the plaintiffs theory. The parents claim that, because defendant breached his duty to render proper medical treatment, they were deprived of information which would have led them to terminate the pregnancy at a stage where abortion was legal. From their point of view, the child was born and lived as a result of defendant’s negligence and we believe that plaintiffs properly alleged proximate cause. The fact that plaintiffs’ theory raises the specter of abortion is not significant since the abortion they allegedly would have sought was legal under Roe v Wade, supra. Defendant’s claim that recognition of the parents’ cause of action would force him to terminate the existence of human life is meritless, since he would be under no duty to perform or counsel abortion.
We hold that the trial court properly refused to dismiss the parents’ cause of action and did not err by allowing them to seek damages for both medical expenses and mental distress. In Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971), this Court considered the civil liability of a pharmacist who negligently supplied the wrong drug to a woman who had ordered an oral contraceptive, resulting in the woman’s becoming pregnant and giving birth to a healthy but unwanted child. The lower court dismissed the parents’ action, declaring that whatever damages plaintiffs suffered were more than offset by the benefits of having a healthy child. This Court reversed, stating that there was no valid reason why the trier of fact should not be free to assess damages as it would in any other case. The panel indicated that the damages awarded should be determined under the so-called benefits rule, whereby any benefit to the plaintiff resulting from the defendant’s tortious conduct is considered in mitigation of damages. Restatement, Torts, § 920, p 616. The Court held that plaintiffs could seek damages for medical and hospital expenses, lost wages, costs of rearing the child and pain and anxiety, to be offset by the value to plaintiffs of the child’s services and companionship. The Troppi decision supports the al lowance of damages for mental distress in the present case and it is our opinion that the benefits rule should be applied in similar future cases.
Plaintiffs raised five other issues in Docket No. 46108. They first claim that the trial court erred in admitting hearsay testimony of Gloria Eisbrenner. Mrs. Eisbrenner had testified earlier in the trial that she contacted Dr. Stanley and expressed her fear of exposure to rubella after learning that her nephew, Tommy, with whom she had recently visited, had broken out in a rash. Defense counsel recalled Mrs. Eisbrenner during his case and questioned her about possible prior exposure to rubella, immunization, her knowledge of rubella symptoms and difficulties encountered in prior pregnancies. He began to question the witness about her earlier statements regarding her suspected exposure to rubella via her nephew. The following colloquy occurred:
"Q. Let me ask it this way. Was it before your sister-in-law then called and told you—
"Mr. Lopatin [plaintiffs’ counsel]: Your Honor, may I take up something in the absence of the jury.
"(Whereupon, the jurors were dismissed.)
"Mr. Lopatin: I am anticipating his next question and it’s rank hearsay, and I object to it. The next question is, is it before your sister told you that Tommy did not have German measles, which is hearsay.
"Mr. Ranger [defendant’s counsel]: Not to me.
"Mr. Lopatin: It is to me.
"Mr. Ranger: I mean, it’s not hearsay to this Defendant in this case. I’m not injecting my personality, your Honor, I’m saying that it’s not hearsay to this Defendant.”
Arguments of counsel ensued, and the trial court ultimately ruled the testimony admissible over the hearsay objection, stating:
"The Court: Regardless of how you tear it, the trial of the lawsuit is a search for the truth. A situation has been created in the testimony, so far as the jury is concerned, of the possibility of exposure to rubella. I think the jury is entitled to hear what she heard to the effect that she was not, and I will permit the question.”
Hearsay is defined in MRE 801(c) as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. After the judge made his ruling, Mrs. Eisbrenner stated that her sister-in-law called her and told her a doctor had said that he did not think Tommy had German measles. This is a classic example of double hearsay and the trial court erred by overruling the objection. However, we do not believe that the error mandates reversal. MRE 103(a) states that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. In the present case, part of plaintiffs’ theory was that certain test results indicated that Mrs. Eisbrenner had contracted rubella and defendant negligently failed to inform plaintiffs of the results. The defense theory on this point was that while Mrs. Eisbrenner may have been exposed to rubella, she was immune to the disease and test results reflected that immunity. Plaintiffs never claimed that the nephew was the source of the alleged rubella infection; they only argued that the boy’s rash was the reason Mrs. Eisbrenner consulted Dr. Stanley. It is our opinion that, because the source of the alleged rubella infection was not a disputed question at the trial, admission of the hearsay testimony did not affect the plaintiffs’ substantial rights.
Next, plaintiffs argue that the trial court erred in permitting defense counsel to read and comment on plaintiffs’ pleadings during closing argument. At several points during closing argument, defense counsel made reference to the fact that plaintiffs had filed amended complaints in which the theories of liability changed and had originally named another doctor and a hospital as defendants. Plaintiffs’ counsel objected on the ground that the pleadings had never been offered into evidence and the trial judge overruled the objection, stating that the files were part of the case. On appeal, plaintiffs claim that any reading from the pleadings was improper and that the argument made by defense counsel was improper because it implied that plaintiffs’ case was not worthy of belief because of the amendments.
Our review of the transcript indicates that while defense counsel referred to the pleadings, he did not read them to the jury. Statements of fact contained in pleadings constitute admissions, GCR 1963, 604; MRE 801(d)(2)(C). The trial court did not err in allowing defense counsel to comment on the statements in the pleadings. Vachon v Todorovich, 356 Mich 182, 186-188; 97 NW2d 122 (1959).
The nature of the disputed argument presents a different question. No objection was made below on the basis that the remarks constituted improper innuendo; therefore, absent manifest injustice, reversal on this ground is not justified. Taylor v Lowe, 372 Mich 282; 126 NW2d 104 (1964). The argument in the present case was improper, in our opinion. Defense counsel characterized plaintiffs as parties on a fishing expedition, searching for theories of liability which would permit recovery from someone. The argument runs counter to the liberal policy of this state to allow amendment of pleadings. GCR 1963, 118. We believe the following comments of the Supreme Court in Ward v Reed, 134 Mich 392, 394; 96 NW 438 (1903), are germane:
"Complaint is also made of the remarks of counsel and, we think, justly. It is not proper to interject irrelevant remarks, calculated, if not designed, to prejudice the jury upon the merits of the case. A litigant has a right to a fair trial, and such conduct is unfair, and should be promptly suppressed. Nearly every term of court some case is presented where this practice has been indulged in, and we are sometimes forced to think that there is method in it, and that the reluctance of the court to reverse cases, for reasons not clearly shown to have done injury, is presumed upon, though in most cases (as in the present) we are charitable enough to ascribe it to overzeal, heat, or provocation by opposing counsel. The practice is not ethical, and should be avoided.”
We decline to reverse on this ground due to the lack of a proper objection or a request for a curative instruction, the fact that one of the plaintiffs’ attorneys explained the amendments in his rebuttal argument and the fact that the jury was instructed that remarks of counsel were not evidence.
The remaining issues raised by plaintiffs involve the trial court’s decisions concerning the testimony of expert witnesses, the admissibility of a film and the conduct of rebuttal and surrebuttal. We have reviewed the record and find, with one exception, no error in the court’s handling of these matters. The exception occurred where the judge permitted defense counsel to question Dr. Chasom during surrebuttal about a statement of another witness, Dr. Sillery, which had been made outside the presence of the jury, that Dr. Chasom had agreed that the infant’s brain was a typical rubella brain. Defense counsel asked Dr. Chasom if he had made the statement and he denied it. We conclude error occurred but that it was harmless pursuant to GCR 1963, 529.1 and MRE 103(a). The trial lasted over two weeks and the improper question was isolated. We do not believe the question and answer affected the outcome of the case.
We need not consider the other issue raised by defendant in Docket No. 46108.
Affirmed. No costs, neither party prevailing in full. | [
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J. W. Warren, J.
Defendant was convicted by a jury of larceny in a building, MCL 750.360; MSA 28.592. He was sentenced to a prison term of from two to four years and appeals as of right.
Evidence of the following facts was presented during the prosecution’s case in chief: Security personnel at a K-Mart store in Mt. Clemens suspected one of the cash register operators of selling merchandise to her husband at a reduced rate. A surveillance operation was set up, and, on June 13, 1979, defendant’s activity in the store drew the attention of a security officer. Defendant was observed with a shopping cart containing several items. He entered checkout line #6, staffed by Kathleen Thompson, on several occasions but left the line each time other customers lined up behind him. Defendant returned to the same checkout line for a final time, and the security officer got in line behind him. Defendant removed the merchandise from his cart and placed it on the counter. Kathleen Thompson removed the tags from the items, which was standard procedure, and placed the merchandise in a bag. Defendant put the bag in his cart and left the store. The security officer saw no money change hands. He and another security officer stopped defendant outside the store, and the bag was found to contain cowboy boots, pants, gym shorts, and underwear. None of the prices for these articles appeared on the tape from the cash register. Kathleen Thompson was identified as defendant’s sister.
Defendant contends that he was improperly charged with larceny in a building. No objection to the charge was made below, and ordinarily appellate review of this issue would be precluded. However, defendant’s argument can be viewed as a challenge to the sufficiency of the evidence of larceny, an issue properly before this Court.
The elements of larceny are: (1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with felonious intent, (4) the subject matter must be the goods or personal property of another, and (5) the taking must be without the consent of and against the will of the owner. People v Long (On Remand), 93 Mich App 579; 286 NW2d 909 (1979). Apparently, defendant’s theory is that the third and fifth elements were not established where the evidence showed that he received the merchandise from the cashier — a person in rightful possession of the property by virtue of her status as a K-Mart employee.
We find that this issue lacks merit. This Court has distinguished between possession and mere custody of property in larceny cases. In People v Gill, 12 Mich App 383; 163 NW2d 14 (1968), a night janitor in a retail store had been convicted of larceny after being caught sliding phonograph records under the door to an accomplice waiting outside. He argued that because the records were delivered to his possession by reason of his employment there could not have been the "felonious taking” necessary for larceny. This Court found that defendant’s bare access to the records did not constitute rightful possession where he had no duties to perform with respect to the records other than those of a custodian.
In People v Manning, 38 Mich App 662, 666; 197 NW2d 152 (1972), the distinction between possession and custody was explained as follows:
" 'What amounts to possession and what to mere custody within the meaning of the rules probably cannot be determined according to any settled formula, but the question in any particular case must depend largely upon the capacity in which the defendant was given access to or dominion over the property taken, and upon the powers or duties which the owner gave or imposed upon him with respect thereto. For example, one to whom property is delivered by the owner for some limited, special or temporary purpose may be regarded as having its custody only, and as capable of committing larceny thereof.’ ”
Application of these principles to the cashier in the present case dictates the finding that, at best, she obtained custody of the merchandise. The system used at K-Mart requires the customers to take physical possession of items they intend to purchase and bring them to the cashier. Title passes upon the payment of the price to the cashier. See, State v Boyd, 5 Conn Cir Ct 648; 260 A2d 618 (1969). The cashier has limited authority and discretion in connection with the goods and in the present case her duties did not go beyond tallying the prices, bagging the goods, and receiving money in exchange. Legal possession remained in the K-Mart Corporation. Therefore, we conclude that the cashier lacked the actual authority to consent to the taking of merchandise by defendant without payment. We cannot say that the cashier had apparent authority to give away the store’s property, either.
The jury was instructed that defendant could be found guilty of larceny in a building because he directly committed the crime or acted as an aider and abettor. Defendant now claims that the following instruction was erroneous:
"Mere presence, even with the knowledge that an offense is planned or is being committed, is sufficient to establish that the defendant aided or assisted in the commission of the crime.” (Emphasis added.)
This instruction is incorrect, and a proper statement of the law would be made if the word "insufficient” was substituted for "sufficient”. People v Killingsworth, 80 Mich App 45; 263 NW2d 278 (1977).
The court reporter has submitted an affidavit stating that a review of his notes revealed that the word "insufficient” was actually used. This Court has discretionary power under GCR 1963, 820.1(4) to correct errors in the trial transcript. We hereby exercise such discretion and accept the reporter’s correction.
Finally, we address defendant’s argument that he was denied effective assistance of counsel. In People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), the Supreme Court set forth the test for determining whether a defendant has been deprived of his constitutional right to effective assistance of counsel. The standard requires that defense counsel perform at least as well as a lawyer of ordinary skill and training in the criminal law, and if such action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective. Even if this constitutional minimum for effective assistance of counsel was met, a defendant also has a right to a fair trial. If an attorney makes a serious mistake, but for which a defendant might reasonably have been acquitted, a new trial is necessary. Id., 266.
The first instance of allegedly improper representation occurred when defense counsel, on direct examination, brought out the fact that defendant had been released from prison on parole on the date of the incident at the K-Mart store. It was revealed that defendant had been serving time for a felony conviction, but the nature of that conviction was not disclosed at this point in the trial. We find that this procedure did not constitute ineffective assistance of counsel because it constituted a matter of trial strategy. Defendant’s theory was that if any wrongdoing was committed in the store, it was committed by the cashier and. not by himself. The fact that defendant had just been paroled on the date of the crime would tend to support an argument that he would not be willing to engage in criminal activities so soon after release from prison. Furthermore, defense counsel may have wished to disclose the existence of a prior conviction in order to present defendant as a person with nothing to hide.
Defendant also contends that his attorney erred in failing to object when the prosecutor cross-examined defendant and brought out the fact that defendant was on parole from a 1972 conviction. This indirectly informed the jury that defendant had spent the last seven years in prison. In People v Rappuhn, 390 Mich 266; 212 NW2d 205 (1973), the Supreme Court held that to cross-examine a defendant as to the details and duration of prior prison sentences to test his credibility constitutes error requiring reversal. In Rappuhn, the lower court had allowed the prosecutor to directly question defendant about his sentence for a prior offense. In the present case, however, there was no direct questioning about the terms of the sentence, and any objection by defense counsel at this point might only have emphasized the length of the sentence to the jury. Failure to object in this situation could have been a proper trial strategy decision, and we find no error.
Defendant’s last claim of deficient representation is based upon the failure of defense counsel to move for suppression or limitation of evidence of defendant’s prior convictions. During cross-examination, the prosecutor elicited testimony that defendant had been convicted in 1972 of armed robbery and breaking and entering and had been convicted later of carrying a concealed weapon. It is possible that the trial court would have limited or excluded evidence of the breaking and entering and armed robbery because those convictions were for conduct similar to that involved in the present case. The concealed weapons conviction did not bear on credibility and might have been excluded on that basis. See People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). We are unable to discern any valid strategy reason for defense counsel’s failure to make a suppression motion. It is possible that such failure resulted in prejudice to defendant’s case; however, our analysis of Crawford, supra, and MRE 609 does not convince us that the trial court would have been required to exclude or limit evidence of the prior convictions had the motion been made.
A criminal defendant’s claim of error based on ineffective assistance of counsel will fail, even if actual proof of prejudice is presented, unless but for the alleged errors the defendant would have had a reasonably likely chance of acquittal. People v Bailey, 101 Mich App 144, 154; 300 NW2d 474 (1980). Evidence of the prior convictions related to defendant’s credibility in the present case, an important factor since he told a different story than the security guard who testified for the prosecution. However, after reviewing the transcript, we are unable to say that defendant would have had a reasonably likely chance of acquittal had evidence of his prior convictions been excluded.
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North, C. J.
The defendant heíéin was charged with involuntary manslaughter in consequence of a collision between the automobile driven by him and one driven by the deceased, Alfred Larson. The conviction was for negligent homicide and the defendant reviews by writ of error.
The information contains only one count and charges that (1) the defendant, Maki, was driving at an unreasonable and unlawful rate of speed, (2) that he was driving without having his car under control, (3) that he was driving on the highway while intoxicated, and (4) that he did wilfully, etc., drive his automobile against the automobile of said Lar-r son in a reckless and careless manner and thereby caused the latter’s death. Of these alleged acts of unlawfully operating the defendant’s automobile the first three were not sustained by the proof, and the trial court charged the jury:
“So all of these matters, the speed of the car, the control of the car and intoxication are taken out of the case and taken from your consideration as showing in any manner that the defendant was guilty of negligence in respect to the accident which happened there. The people, however, claim that the defendant was driving on the wrong side of the road.”
The defendant assigns error because the case was submitted to the jury on the theory covered by the italicized portion of the charge above quoted, i. e., that the defendant was driving his automobile on the .wrong side of the road. It is claimed by the defendant that no such charge is contained in the information. This question was timely raised by objection to testimony, by a motion for a directed verdict, by requests to charge, and assignments of error based on the charge as given. Aside from those portions which the trial court held were not sustained by any proof, we find the following charged in the information:
“And (the defendant) did operate said automobile so as to endanger the life of Alfred Larson and did then and there wilfully, feloniously, wantonly, and recklessly drive said automobile into and against the automobile of said Alfred Larson, in a reckless and careless manner, giving to the said Alfred Larson * * * ' mortal wounds and injuries of which * * * said Alfred Larson * * * died.”
By the verdict rendered the jury acquitted the defendant of the charge of involuntary manslaughter ; and hence we are now concerned only with the question as to whether the information properly charges the defendant with negligent homicide. The statute (Act No. 98, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 15226 (2-4)]) provides:
“Section 1. Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause-the death of another shall be guilty of the crime of negligent homicide. * * *
“Sec. 2. The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charged to have been committéd in the operation of any vehicle, and in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter such jury may in its discretion render a verdict of guilty of negligent homicide.
“Sec. 3. In any prosecution under this act, whether the defendant was driving at an immoderate rate of speed shall be a question of fact for the jury and shall not depend upon the rate of speed fixed by law for operating such vehicle.”
We think the portion of the information above quoted sufficiently charges the defendant with having committed the crime of negligent homicide by recklessly and carelessly driving his automobile into and against the automobile of the deceased and thereby causing the latter’s death. Not all of the details of the collision are alleged; but all the essential elements of the offense are charged. If the defendant desired further details of the facts and circumstances out of which the alleged offense arose he might have obtained them by demanding an examination before the magistrate. He saw fit to waive his right to an examination, but he should not be allowed to use this circumstance as a means of obtaining a new trial. As stated by Justice Wiest in People v. Townsend, 214 Mich. 267 (16 A. L. R. 902), so it might be said in the instant case:
“The right of an accused to be fully informed of the nature of the charge against him relates, so far as the information is concerned, solely to the charge and not to the evidence in support thereof. * # * The information sufficiently charges that the unlawful act was the proximate cause of the accident and avers a direct relation between the unlawful act of operating the automobile” in a reckless and careless manner and the accident which followed.
The Townsend Case quotes:
“ ‘This information charges that defendant carelessly, recklessly and with culpable negligence operated and propelled this automobile. * * * It was not, in our judgment, essential that the informa tion should underthke to set out in detail in what such carelessness, recklessness and culpable negligence consisted.’ State v. Watson, 216 Mo. 420 (115 S. W. 1011).”
.The unlawful act charged in this information and relied upon by the prosecution is that the defendant “did operate said automobile * * * in a reckless and careless manner.” This wrongful act in and of itself is not a felony. The syllabus in People v. Townsend, supra, reads as follows:
“In an information charging involuntary manslaughter committed while perpetrating an unlawful act not amounting to a felony, it is sufficient to allege the unlawful act with sufficient particularity to identify it, and then to charge that as a consequence the defendant caused the death of the deceased, and there is no need to aver in detail the specific acts of the accused.”
The foregoing should not be construed to mean that it is always sufficient to charge a statutory offense in the words of the statute alone. The accused has the constitutional right to be informed of the nature of the charge brought against him. Undoubtedly this includes the right to have a definite statement of the time, place, and manner of committing the offense, and likewise a definite statement of the charge itself. Beyond this the details are proper as matters of evidence but are nonessentials to the information. The information in this case specifically charges the time, the place, and the manner in which the alleged negligent homicide was committed, the recital being that it was accomplished by the defendant by wilfully, feloniously, and wantonly driving his automobile into and against the automobile of the deceased, Alfred Larson, in a reckless and careless manner, thereby causing the death of said Larson. It may he conceded it would have been better pleading had the prosecuting attorney set forth this phase of the charge more specifically, but we are of the opinion that his failure to do so has not prejudiced the defendant. The constitutional right of the accused is “to be informed of the nature of the accusation.” We think the information satisfies this requirement. A careful consideration of the record convinces us that the defendant was not surprised at the trial of the case, and that all of the available witnesses as to this phase of the alleged offense were before the court. There was no application for a continuance. The information in People v. Ryczek, 224 Mich. 106, charges the same offense in substantially the same manner. There, as here, it was charged that the defendant was under the influence of intoxicating liquor, but Ryczek was convicted on the theory that he was driving “without keeping a lookout as to where he was going. ’ ’ The information in that case was held to be sufficient. The holding there should be controlling here and this information likewise held to be sufficient.
Error is assigned on the ruling of the circuit judge whereby the prosecuting attorney was allowed to ask one of the people’s witnesses, Frank Salo, if on the evening of the accident he had some drinks of moonshine whisky at Billy Sousa’s Bingo Shop in Negaunee. Salo had ridden from Ishpeming to Negaunee with the defendant in the latter’s automobile earlier in this same evening; and these two were at Sousa’s place together. The witness admitted that he had “about three drinks there,” but he also testified that he did not see the defendant take any drinks. Salo was not with the defendant at the time of the accident. Not being an eyewitness, the people were not obliged to call him. There was no proof that the defendant drank any liquor on the night in question; but he was charged with driving an automobile while intoxicated, and the irrelevant and immaterial testimony that’ the people’s witness, who was with the defendant during the evening some time before the accident, had been drinking moonshine whisky, was highly prejudicial. It is true that in so far as the charge was based upon driving an automobile while intoxicated, it was finally withdrawn from the consideration of the jury; but this only rendered the testimony all the more irrelevant but none the less prejudicial.
The most important question presented in this record is the constitutionality of Act No. 98, Pub. Acts 1921, under which this prosecution is brought. The act is assailed on the ground that it does not definitely define any offense. It is asserted that one convicted thereunder is deprived of his liberty without due process of law and is deprived of the equal protection of the law.
The wording of some portions of the act is subject to criticism, but the intent and purpose of the legislature is plainly indicated. Notwithstanding it is provided that the jury “may in its discretion render a verdict of guilty of negligent homicide, ’ ’ cleaily it was not intended by this portion of section 2 to vest a discretionary power in the jury to convict or acquit irrespective of the facts established by the proof. The statute should not be so construed. It is made plain by section 3 that the legislature intended to permit it to be determined as a question of- fact in each case as to whether the defendant was driving at an immoderate rate of speed. Because section 3 provides that what constitutes driving at an immoderate rate of speed is a question of fact, it is asserted the court cannot define the offense or properly charge the jury, but instead what constitutes an essential element of the offense is to be fixed by the jury rather than by the terms of the statute itself. The criticism is made that this renders the statute so uncertain and indefinite that one cannot know whether his course of conduct in this particular is lawful or unlawful, and that driving a vehicle at a given rate of speed may be found criminal by one jury and entirely lawful by another. This criticism overlooks the fact that notwithstanding the jury determines as a question of fact from the proof whether the defendant under all the'circumstances of the particular case is guilty of driving at an immoderate rate of speed, it is still the duty of the court to instruct the jury as to the rules of law in the light of which the jury shall determine from the-proof the existence or nonexistence of this element of the offense. The very nature of the offense sought to be prohibited prevents its-definition by specific terms. What would constitute a careless, reckless, negligent or immoderate rate of speed in one locality, under certain conditions might well be found to be entirely proper in another place or under different conditions. This element of the offense cannot be defined by the use of exact terms but it does not follow that the offense may not be defined in terms sufficiently definite to meet the constitutional requirement.
“In creating an offense which was not a crime at common law, a statute must of course be sufficiently certain to show what the legislature intended to prohibit and punish, otherwise it will be void for uncertainty. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible. * * * It is not necessary to use technical terms, and the legislature may designate the offense by using words in common and daily use; and a penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited.” 16 C. J. pp. 67, 68.
We have many crimes defined by the use of words of general and flexible meaning, and in consequence thereof the existence or nonexistence of certain essential elements of these statutory offenses becomes a question of fact for the jury to determine from the proof in the case. Reference to only a few of the offenses of this character will suffice to suggest the extent of this type of statutes. The following are statutory felonies (references are to sections of Comp. Laws 1915): Wilful, deliberate and premeditated killing (15192); committing an assault with a deadly weapon (15207); assault with intent to do great bodily harm (15227); assault with a gun, etc., or other dat%gerous weapon (15228); cruelly and unlawfully punishing a child (15230); to go armed with an offensive and dangerous weapon or instrument concealed on one’s person (15236); committing a gross fraud or cheat (15321); malicious injury to property (15331); abandonment of wife or children without necessary and proper shelter, food, etc. (7789); lewd and lascivious cohabitation (15467); use of indecent language, etc. (15533). Each of these and many others which might be added contain one or more essential elements of the statutory offense which is not specifically defined by the statute. In the instant case the charge is involuntary homicide committed by operating a vehicle at an immoderate rate of speed or in a careless, reckless, or negligent manner. The statute does not define immoderate rate of speed or what constitutes carelessness, recklessness, or negligence. It is, therefore, argued that the statute does not define the crime. By the same process of reasoning the statute forbidding abandonment of a wife and children without providing necessary and proper shelter, food, etc., must fail because it does.not specify or define what constitutes “necessary and proper shelter, food,” etc. The same may be said of the statute against “cruelly and unlawfully punishing a child.” Is it more difficult to define and have a jury determine as a fact what constitutes operating a vehicle at “an immoderate rate of speed” than what constitutes “cruelly punishing a child,” or what in a given case constitutes “necessary and proper shelter, food,” etc? Surely the offense in the instant case is as definitely defined as in the others. The standards applied by a jury in passing upon one case may differ from those applied in another case. This is no more than to say that one jury may require more or different proofs than another. In all criminal cases tried by a jury, it is the jury that determines what constitutes proof beyond a reasonable doubt, which is quite as indefinite and difficult of ascertainment as what constitutes “an immoderate rate of speed;” but the former enters into the determination of the guilt or innocence of every person charged with a crime. It is said every person has a right to know what acts are in violation of law; that there must be a definition of criminality. Here again it would seem that it is quite as easy for a well-minded person to determine whether he is operating his vehicle with reasonable care under the circumstances with which he is surrounded as to determine what is necessary and proper food and shelter for his family considering their station in life, or what would constitute cruel punishment of one of his children. The question presented is not new. There is a conflict of authority as to the validity of statutes of this character. State v. Lantz, 90 W. Va. 738 (111 S. E. 766, 26 A. L. R. 894), holds that such acts are unconstitutional. In the note following this ease (26 A. L. R. 897) and reviewing many authorities, it is said:
“It is generally held that statutes or ordinances providing that no person shall drive or operate any motor vehicle recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highways and the general and usual rules of the road, or so as to endanger the property, life or limb of any person, are not invalid on the ground that they are too vague, uncertain and indefinite to sustain a criminal conviction; ’ ’ citing Schultz v. State, 89 Neb. 34 (130 N. W. 972, 33 L. R. A. [N. S.] 403, Ann. Cas. 1912C, 495); State v. Schaeffer, 96 Ohio St. 215 (117 N. E. 220, L. R. A. 1918B, 945, Ann. Cas. 1918E, 1137); Schier v. State, 96 Ohio St. 245 (117 N. E. 229); Mulkern v. State, 176 Wis. 490 (187 N. W. 190); Maxon v. State, 177 Wis. 379 (187 N. W. 753, 21 A. L. R. 1484).
The following authorities are to the same effect: Ex parte Daniels, 183 Cal. 636 (192 Pac. 442, 21 A. L. R. 1172); State v. Goldstone, 144 Minn. 405 (175 N. W. 892); Gallaher v. State, 193 Ind. 629 (141 N. E. 347, 29 A. L. R. 1059).
In Gallaher v. State, supra, numerous authorities are cited and reviewed and consideration given to the questions raised incident to this phase of the present case. In passing upon a like statutory provision, it is stated in State v. Schaeffer, supra:
“In short, the legislature wrote into the statute what has become known as the ‘rule of reason’ ever since Standard Oil Co. v. United States, 221 U. S. 1 (31 Sup. Ct. 502, 34 L. R. A. [N. S.] 834, Ann. Cas. 1912D, 734), and United States v. American Tobacco Co., 221 U. S. 106 (31 Sup. Ct. 632), were decided by the Supreme Court of the United States. In those cases the Supreme Court of the United States read into the statute the so-called ‘rule of reason’ holding that the anti-trust act really was not a denial of all restraint of trade, but only a denial of unreasonable restraint of trade. It would hardly be suggested that the Supreme Court of the United States read into the statute something that made the statute unconstitutional, or read into the statute something that made it so indefinite and uncertain that it was incapable of advising the public as to what was or was not an offense under it, or that made the statute practically unenforceable. And yet, by parity of reason, it is claimed in this case that the legislature, which wrote into the statute the same ‘rule of reason, ’ thereby in effect nullified such statute, because of the indefiniteness and uncertainty of its terms. The contention is not sound.”
Notwithstanding quotations from decisions of the United States Supreme Court which might seem to indicate the contrary, they are not applicable to a statute of this character; and by Nash v. United States, 229 U. S. 373 (33 Sup. Ct. 780), and the recent decision of Chief Justice Taft in Cline v. Frink Dairy Co., 274 U. S. 445 (47 Sup. Ct. 681), the constitutionality of such enactments has been sustained. We quote from the Cline Case:
“On questions of confiscatory rates for public utilities, for instance, courts must examine in great detail the circumstances and reach a conclusion as to a reasonable. profit. But this does not justify in such a case holding the average member of society in advance to a rule of conduct measured by his judgment and action in respect to what is a reasonable price or a reasonable profit. It is true that, on an issue like negligence, i. e., a rule of conduct for the average man in the avoidance of injury to his neighbors, every one may be held to observe it either on the civil or criminal side of the court. It is a standard of human conduct which all are reasonably charged with knowing and which must be enforced against every one in order that society can safely exist. We said in the Nash Case (p. 377):
“ ‘But apart from the common law as to restraint qf trade thus taken up by the statute the law is full of instances where a man’s .fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a' short imprisonment, as here; he may incur the penalty of death. “An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it” by common experience in the circumstances known to the actor. * * * “The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.” 1 East P. C. 262.’
“Following the authority in the Nash Case, we sustained in Miller v. Oregon, per curiam, 273 U. S. 657. (47 Sup. Ct. 344), a conviction of manslaughter under a statute of Oregon, which made the following rule of conduct a standard of criminality:
“ ‘Every person operating a motor vehicle on the public highways of this State shall drive the same in a careful and prudent manner, not to exceed thirty miles per hour, and within the limit of incorporated cities and towns not to exceed twenty miles per hour, and at intersections and schoolhouses not to exceed twelve miles per hour, and in no case at a rate of speed that will endanger the property of another, or the life or limb of any person. ’ (Ch. 371, General Laws of Oregon, 1921, § 2, snbd. 16.)
‘ ‘ The indictment was framed under the last clause of this statute. Such standard for the driver of an automobile on a highway is one to which it is neither harsh nor arbitrary to hold those criminally who operate such a possibly dangerous instrument of locomotion, and who are or ought to be aware of what degree of care is necessary to avoid injury to others under the conditions that prevail on a highway.”
While it is desirable that criminal statutes be expressed in language as specific as is possible considering the subject-matter of the legislation, neither in the Constitution nor elsewhere is there a requirement that the impossible should be accomplished. With many types of crimes it is not possible to describe or define them by the use of specific terms and still have the statute sufficiently broad and inclusive to cover the whole class of offenses at which it is aimed. A maximum rate' of speed may be fixed and other specific acts incident to operating vehicles may be forbidden by statute, but it is not humanly possible to cover by express terms of a statute every type of careless, negligent, or wilful operation of a vehicle resulting in a culpable homicide except by the use of general terms such as are found in this statute. Driving an automobile at a rate of speed well within a maximum which might be specified in the statute would under certain circumstances be grossly negligent. Certainly there must be some limitations upon and control over misconduct of this character provided in our criminal statutes, and the acts sought to be prohibited are so varied in their details that it is not possible to describe and include them in the statute except by the use of general terms. The rights of the accused are not thereby prejudiced. He may gain detailed information by demanding an examination, and under the criminal code now in force he has a right to a bill of particulars by which he may be informed of the details of the charge brought against him. His constitutional right to be advised of the nature of the accusation brought against him is fully respected. This act is not subject to the constitutional objection here urged.
The contention of the appellant that contributory negligence should be a defense to a statutory charge of negligent homicide is not well founded. People v. Campbell, 237 Mich. 424; State v. Campbell, 82 Conn. 671 (74 Atl. 927, 18 Ann. Cas. 236, 135 Am. St. Rep. 293).
Other errors are assigned in the record, but they are not likely to arise incident to a retrial of the ease and need not be discussed here.
For the reason hereinbefore indicated the conviction should be set aside and a new trial ordered.
Wiest and Sharpe, JJ., concurred with North, C. J. | [
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Clark, J.
Plaintiffs, trustees under a trust mortgage in the sum of $1,250,000 made by defendant, a Michigan corporation, brought this suit for the benefit of the bondholders to recover instalments due from the defendant in accordance with express covenants of the mortgage. Plaintiffs made a motion for summary judgment. Defendant filed an affidavit of merits. The motion was granted and judgment entered. Defendant brings error.
Section 12581, 3 Comp. Laws 1915, provides of motion for summary judgment. Circuit Court Buie No.- 34, as amended (233 Mich, xxxiii), sets forth essentials of an affidavit of merits to be filed by defendant. And see Warren Webster & Co. v. Pelavin, 241 Mich. 19; Smith v. Applebaum, 241 Mich. 493; Slebodnick v. La Buda, 238 Mich. 550. The motion and the affidavits set forth fully the claimed facts. This was a construction loan having usual provision for discount, or commission, and for payment of tax and other charges by the borrower. The only defense indicated is usury. The trial court’s conclusion was that there was no issue for trial for the reason that, as a matter of law, plaintiffs’ demands under the mortgage were not open to the defense sought to be made. If the court was right he was also right in pronouncing judgment.
Act No. 335, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 5997), amended section 1 of Act No. 156, Pub.' Acts 1891 (2 Comp. Laws 1915, § 5997), to read as follows:
* ‘ Section 1. The people of the State of Michigan enact, That the interest of money shall be at the rate of five dollars upon one hundred dollars for a year, and at the same rate for a greater or less sum, and for a longer or shorter time, except that in all cases it shall be lawful for the parties to stipulate in writing for the payment of any rate of interest, not exceeding seven per centum per annum: Provided, That this act shall not apply to the rate of interest on any note, bond or other evidence of indebtedness issued by any corporation, association, or person, the issue and rate of interest of which have been expressly authorized by the. Michigan public utilities commission or the Michigan securities commission.”
The amendment is the proviso.
Seeking approval of the Michigan securities commission of the sale of its bonds in the State, defendant filed with the commission a full statement and showing as required by law (3 Comp. Laws 1915, chap’. 230) as amended, Act No. 404, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11945). Thus, as the law contemplates, the commission was fully informed of the mortgage, the bonds to be issued, and the rate of interest thereon, the preliminary contract between the borrower and the lender showing the full amount to be realized by the borrower on the mortgage and issue of bonds, and showing the total of all sums to be retained by the lender, in short, was fully informed as required by law. The commission approved the sale of the bonds giving certificate of permission to sell within the State $1,250,000 of “its first mortgage 7% serial bonds.” Plaintiffs’ position is that because of the statute above quoted the indebtedness evidenced by the bonds and secured by the mortgage is not open to attack on the ground of usury, nor open to the defense here sought to be made.
Defendant contends that the statute is unconstitutional on two grounds:
First, that’ it attempts delegation to the commission of legislative authority, authority to fix a rate of interest.
Of the right to interest we quote from 15 R. C. L. p. 9:
“While both in England and in this country the legal right to take interest may be said to exist in legal contemplation as the creation of statutory enactment, yet as a general rule the statutes on the subject have been of a negative character, prohibiting the taking of an amount beyond the rate allowed, not declaring what character of demands shall draw interest, or requiring it to be paid, but leaving the question of what shall and what shall not draw interest to the contracting parties; or in other words, making the question whether interest is recoverable or not dependent upon agreement, and not law, the latter only limiting the amount of the recovery.”
Interest statutes are in derogation of the common law and must be strictly construed. 33 C. J. p. 187. A statute “which modifies or repeals usury statutes is restorative of the common law, and by the same token, should be liberally construed.” Alston v. Mortgage Co., 116 Ohio St. 643 (157 N. E. 374).
The effect of the quoted amendment is that there is no usury statute relating to those interest bearing securities regularly approved under the act by the commission except that the rate of interest thereon is'left to agreement of the parties subject to approval or authorization of the commission. From, a reading of the amendment of the usury statute, above quoted, and the statute above cited providing of approval or rejection of securities by the commission, it is.at once apparent that respecting the rate of interest on such securities the commission does no more than to approve or to disapprove the rate contracted by the parties. This is not legislative; it is executive. See Merrick v. Halsey & Co., 242 U. S. 568 (37 Sup. Ct. 227), sustaining the constitutionality of the Michigan blue sky law, above cited, as against the contention that it delegated legislative authority.
Second, that the statute is class legislation.
In 15 E. C. L. p. 19, it is said:
“Legislatures are considered to have very broad powers in regard to this subject, and their enactments as to rates of interest will not be held invalid as class legislation if it is possible to avoid such a holding. ’ ’
The classification is sufficient if it is practical and reasonable. It is not reviewable unless it is palpably arbitrary and unreasonable. A lack of abstract symmetry does not matter. 2 Cooley’s Constitutional Limitations (8th Ed.), 813. The question is primarily for the legislature. See Fountain Park Co. v. Hensler, — Ind. — (155 N. E. 465, 50 A. L. R. 1518), for full discussion of the question. For review of cases on ■ statutory discrimination in interest rates, see 2 L. R. A. (N. S.) 813, note; 27 L. R. A. (N. S.) 898, note, and 26 L. R. A. (N. S.) 1135, note.
The purpose of the blue sky law is to protect the investing public from fraud. The interest statute in question relates to those interest-bearing securities which for issue or sale under the act require approval of the commission. The securities are generally of the class treated by'investors as commercial paper and as securities for permanent investment. It is not unreasonable that the legislature denied, by statutory rule, the defense of usury to borrowers who, having the State’s permission so to do, placed such securities in the hands of the investing public. "We cannot hold that the statute is capricious, arbitrary, or unreasonable. The stated characteristics which serve as a basis of the classification are such as to show—
“an inherent difference in situation and subject-matter of the subjects placed in different classes which peculiarly requires and necessitates different or exclusive legislation with respect to them.” Fountain Park Co. v. Hensler, supra.
The classification embraces as near as may be all naturally belonging to the class.
It is urged that the statute in question may be evaded or used to defraud. Interest or usury statutes frequently have been evaded and used oppressively. Borrowers in many instances have been required to pay not only usurious rates of interest, but as well compensation to lenders for the risk of suffering penalty under the statute. The wisdom of such legislation has long been mooted. At one time in England all usury laws were swept out of existence. 15 R. C. L. p. 5. But they are now nearly if not quite universal. The wisdom of the legislation is not for the courts. That the law, in some instances, may be thwarted and that it will not operate with perfect equality, does not establish that it is unconstitutional. The statute is not unconstitutional. Plaintiffs’ demands herein, therefore, are not open to the defense of usury.
It is unnecessary to discuss section 1, chap. 1, pt. 2, Act No. 335, Pub. Acts 1927, which provides that “no corporation shall interpose the defense of usury to any cause of action- hereafter arising,” it being contended by defendant that the statute is not applicable in point of time.
That defendant is not in fact and law the borrower, and that it 'will not therefore be permitted to raise the defense of usury, which is personal to the borrower, also need not be discussed.
That the bonds are negotiable instruments (City of Adrian v. National Bank, 180 Mich. 171 [Ann. Cas. 1916 A, 600]), that the bondholders are holders in due course (2 Comp. Laws 1915, § 5995), of the bonds with benefit of the mortgage (41 C. J. pp. 673, 674; Barnum v. Phenix, 60 Mich. 388), and that the bonds are goods in their hands (Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511), and the indebtedness evidenced by the bonds therefore not open to the defense of usury, are questions not before the court.'
We find no error.
Affirmed.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, J.
Plaintiff was a subcontractor, working for one Scbroeder, who had a contract to construct a building for defendant. This suit is for the balance unpaid on the subcontract, and is grounded upon the claim that defendant orally promised to pay plaintiff the balance in consideration of his completing the work, and that he did so. Plaintiff had verdict of a jury and new trial was denied by the court. Defendant’s contentions are:
1. That the declaration was insufficient to sustain the verdict. Not having challenged the sufficiency of the declaration at the trial by motion, nor objected to the admission of testimony thereunder, nor otherwise raised the question before verdict, defendant waived this objection. McHardy v. Wadsworth, 8 Mich. 349; Stone v. Covell, 29 Mich. 359; Merkle v. Township of Bennington, 68 Mich. 133; Frankel v. Coots, 41 Mich. 75.
2. That plaintiff is estopped from maintaining the suit because of sworn statements and waivers of lien which he delivered to the general contractor. This defense was not pleaded (Circuit Court Pule No. 23, § 2), the record does not show it was suggested at the trial and it is not here for review.
3. That the testimony failed to show consideration running to defendant to take his alleged promise to pay Schroeder’s debt out of the statute of frauds. Plaintiff’s testimony was that defendant promised to pay if plaintiff would complete the work; that, he completed it in all respects except in one, in regard to which he was prevented from performance by defendant’s daughter and by an immediately subsequent letter from defendant himself. This was sufficient consideration. McLaughlin v. Austin, 104 Mich. 489.
4. That the verdict was against tbe weight of the evidence. Plaintiff’s testimony was contradictory. Defendant conceded that the parties had a conversation in which plaintiff’s pay for his work was discussed. The essential difference between them was whether such conversation occurred before or after plaintiff’s work was completed, and whether defendant said he would pay plaintiff or would help him get his pay from Schroeder. We agree with the circuit judge that the weight of the evidence was not so overwhelmingly against the verdict as to justify its reversal.
The judgment is affirmed.
North, C. J., and Clark, McDonald, Potter, and Sharpe, JJ., concurred with Fead, J. | [
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Sharpe, J.
On July 1, 1920, the plaintiff district bonded itself in the sum of $90,000, and on March 1, 1921, in the sum of $30,000, to raise money to be used in the construction of a schoolhouse therein, and such moneys were used for that purpose. This action was taken under the authority conferred by section 5712, 2 Comp. Laws 1915. (The amendments to this section later enacted are immaterial to the decision of the' question here presented.)
Act No. 65, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5870 [51-62]), is entitled:
“An act relative to free schools of cities having a population of two hundred fifty thousand or over, and comprising a single school district.”
Under its provisions the boundaries of the defendant district were automatically changed to correspond with the boundaries of the city of Detroit, and a considerable part of the territory theretofore included in the plaintiff district became detached therefrom and annexed to the defendant district.
Act No. 269, Pub. Acts 1927, is entitled:
“An act relative to the payment of certain bonds issued by a school district where a portion of the district has been annexed to a city school district having a population of two hundred fifty thousand or over.”
It consists of but one section, and reads as follows:
“Where a portion of territory of a school district has heretofore been annexed to a school district of a city having a population of two hundred fifty thousand or over as shown by the last Federal census in accordance with the provisions of section three of act number sixty-five of the public acts of nineteen hundred nineteen, the remaining portion of the school district unannexed shall be liable for and assume payment of all the bonds which have been issued for the purchase of lands and the construction of school buildings located in such remaining portion of the district not annexed to the city school district.
“This act is ordered to take immediate effect.”
Relying on its provisions, defendant here resists plaintiff’s demand for payment of interest which had accrued on said bonds. Mandamus to compel such payment was denied by the trial court, and plaintiff seeks review thereof by certiorari.
The constitutionality of Act No. 269 is attacked for several reasons. The serious question, it seems to us, is, whether it does not violate section 10 of article 1 of the Federal Constitution and section 9 of article 2 of our State Constitution, both of which forbid the enactment of any law “impairing the obligation of contracts.” There is no contract relation existing between the State and the school districts provided for by the legislature. Such a relation, however, does exist between the plaintiff district and the purchasers of the bonds issued by it. While the statute does not in express terms create a lien upon the property of the district for the payment of bonds lawfully issued by it, the only remedy provided to secure such payment is by the levy and collection of a tax thereon. A judgment may be obtained, but the property of the district is not liable to a levy and sale under execution. Payment may be secured only by the assessment and collection of a tax therefor, and this remedy may be enforced by mandamus. Wayne County Savings Bank v. Supervisor of Roscommon Twp., 97 Mich. 630. If a district consisting of nine sections may be dismembered by act of the legislature and one section detached therefrom, any number of sections less than the whole might also be detached and the security of the bondholder be thereby seriously impaired, if not entirely destroyed. The constitutional right of the legislature to enact such a law cannot be made dependent upon whether the bondholder is sufficiently protected by the balance of the property not detached. He purchased the bonds relying on the security afforded him; the right to enforce collection by a tax on the 'property of the district as it existed at the time the bonds were issued. Act Nq. 269 relieves a considerable part of the territory then in the district from the payment of snch tax without making any provision therefor, and for that reason it violates the constitutional provision above referred to.
In Finn v. Board of Sup’rs of Bay Co., 167 Mich. 166, it appeared that a local act had been passed detaching- the township of Gibson from the county of Bay after a bond issue in that county had been authorized, and attaching it to the county of Arenac. Mr. Justice Brooke, speaking- for the court, said:
“The county of Bay, at a time’when Gibson township was a part thereof, duly authorized the issue, and it was not within the power of the legislature thereafter to pass any act which would relieve any portion of the territory affected by the proposed issue without making due provision for the same.”
In Bethany School District v. Township of Bethany, 233 Mich. 327, it appeared that the plaintiff had erected a school building and issued its bonds in payment therefor, and that the lands detached had been assessed therefor. The court said:
“The owners of these bonds were entitled to look to their full security for the payment of the bonds and any attempt to lessen their security would be invalid as to them. Finn v. Board of Sup’rs of Bay Co., 167 Mich. 166. As concerns the rights of bondholders the territory included in the district could not be lessened by detaching therefrom any portion. ’ ’
In the recent case of Grand Rapids Board of Education v. Ellinger, 244 Mich. 28, which involved the annexation of a part of the territory of a school district with a bonded indebtedness to a city district, it was said:
“The contract obligation created by the bond is sue was the undertaking of the whole township district, and 27.87 per cent, of it cannot be released to the disadvantage of the remainder of the district. Any action taken by the school board of the city district which purported to bring about such a result would be an attempt to impair the contract obligation incident to the bond issue, and would be invalid. .The pro rata share of the bonded obligation at the time of annexation was in the nature of an incumbrance and a lien on the property constituting the annexed territory. ’ ’
As was pointed out in that case by Mr. Justice North, there was no obligation upon the part of the city district to have the territory in question annexed to it. The law providing therefor undoubtedly was passed at the request of some of its officials. No hardship results from requiring it to assume and pay the percentage of the bonded indebtedness which the valuation of the territory annexed bears to that unattached as provided for in Act No. 35, Pub. Acts 1923, and as was required to be done in Grand Rapids Board of Education v. Ellinger, supra.
In People, ex rel. Welch, v. Dunn, 168 N. Y. App. Div. 678 (154 N. Y. Supp. 346), relied on by defendant, the act, detaching certain territory from two townships and annexing it to the city, provided for an apportionment of “the debts, demands, claims and charges against the common school district which includes such added territory” by a “board of audit” designated for that purpose. The question presented involved the right of this board to turn over to the city certain insurance moneys which had been collected by the district. In the opinion, it was, however, said:
“The auditing board created by the statute held meetings and it was recognized that bonds to the amount of $13,000 constituted an existing debt against the school district, and these were apportioned to the school district and to the city of Schenectady for payment on the basis of the assessment roll, and no one raises any question that this was a proper disposition to be made of this debt.”
While the legislature possesses the power to detach a part of the territory from one school district and attach it to another, and may “apportion the common property and the common burdens in such manner as to them may seem reasonable and equitable” (Kies v. Lowrey, 199 U. S. 233, 240 [26 Sup. Ct. 27]), it may not impair the obligation in the bondholders’ contract by taking such action without making provision for the payment thereof.
It is suggested that the bondholder alone may raise the question here considered. The plaintiff has paid the interest on these bonds, and here seeks to compel payment by the defendant. It may hereafter decline to make such payment and of the principal debt when it falls due. The remedy of the bondholder would be as above stated. In our opinion it would not only be unjust to require the bondholder to be put to the expense of such action when its rights can be fully determined in the proceeding before us, but also unjust to the plaintiff to require it to make default in payment and be subjected to the expense incident to such a proceeding.
It is but fair to the trial court to say that the question on which decision is here rested was not presented to or considered by him. It was raised in this court, and briefs were asked for and have been furnished by counsel at our request.
The conclusion reached renders it unnecessary to consider the claim of the plaintiff that Act No. 269 is unconstitutional because it in effect amends Act No. 65 of the Public Acts of 1919 without re-enacting it, and also because it violates the constitutional inhibition relating to local acts (Art. 5, § 30).
The order entered will be vacated and set aside, and the cause remanded to the circuit court, with direction to enter an order in conformity herewith, with costs to appellant.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
McDonald, J.
The defendants seek a review by certiorari of an award of the department of labor and industry. The plaintiff was 17 years of age at the time he was employed by Boice Brothers, a co- partnership engaged in operating a gravel pit near Pontiac, Michigan. On November 30, 1927, about a month after he had been employed, he suffered an accidental injury arising out of and in the course of his employment, which resulted in the amputation of his left arm above the elbow. The employer had accepted the provisions of the workmen’s compensation law with the defendant Central West Casualty Company as insurer. At the time of the accident, the plaintiff’s weekly wage was $30. An agreement was entered into by the parties providing for the payment of $18 a week for 200 weeks. The agreement was not accepted by the department for the reason that it did not appear by the records that it had approved, as not unduly hazardous, the work the plaintiff was employed to perform. The defendants then withdrew the agreement and filed an answer denying liability on the grounds that the 1927 amendment to the workmen’s compensation act relating’ to the employment of minors is unconstitutional. On the hearing, the board upheld the validity of the amendment and awarded the plaintiff compensation thereunder.
The facts are not in dispute.4 The plaintiff was 17 years old. He was employed in a gravel pit to work around moving machinery. While so employed, he suffered the injury for which he seeks compensation. He was illegally employed. The board so found. The finding is not questioned, nor is it claimed that in obtaining the employment there was any fraudulent use of permits or certificates of age. So that unless the amendment (Act No. 162, Pub. Acts 1927) is unconstitutional, the plaintiff is entitled to an award thereunder which provides for double compensation.
The first question presented for our consideration is whether, under the circumstances, the defendants have a right to attack the constitutionality of the act. The board held that they were in no position to do so. This is on the theory that the workmen’s compensation law is elective, and the employer, having elected to be governed by its provisions, and having enjoyed such benefits as it gives, is estopped to deny its validity.
This rule of estoppel in such cases is stated by Chief Justice Taft in Booth Fisheries Co. v. Industrial Commission, 271 U. S. 208 (46 Sup. Ct. 491), as follows:
“More than this, the employer in this case having elected to accept the provisions of the law, and such benefits and immunities as it gives, may not escape its burdens by asserting that it is unconstitutional. The election is a waiver and estops such complaint. ’ ’
And in American Life Ins. Co. v. Balmer, 238 Mich. 580, it was said by Mr. Justice Fellows :
“But a complete answer to plaintiff’s assault on the validity of the act lies in the fact that plaintiff has accepted its provisions and has had the benefit of them. By accepting its benefits it is estopped to deny its validity.”
But the defendants contend that the estoppel by waiver rule of these cases does not apply to the instaqt case because Boice Brothers never elected to accept the 1927 amendment, and have not accepted its benefits.
The election to come under the workmen’s compensation law is made by the filing of a statement to that effect with the department of labor and industry. Section 5428, 2 Comp. Laws 1915, as amended by Act No. 64, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5428), reads:
“The filing of such statement and the approval of said board, shall operate within the meaning of the preceding section, to subject such employer to the provisions of this act and all acts amendatory thereof for the term of one year from the date of the filing of such statement, and thereafter, without further act on his part, for successive terms of one year each, unless such employer shall, at least thirty days prior to the expiration of said first or any succeeding year, file in the office of said board a notice in writing to the effect that he desires to withdraw his election to be subject to the provisions of this act.”
It is conceded that Boice Brothers filed their statement of election and became subject to the provisions of the. act on July 17, 1918, and have not since' given notice of withdrawal. At the time of the accident in November, they were subject to the provisions of the law which included the 1927 amendment. The same situation existed when they employed the plaintiff. The amendment in question was enacted May 12, 1927. It did not go into effect until September 5, 1927. On the date it went into effect, the time for giving notice of withdrawal had elapsed, and therefore,'the defendants say they had no opportunity to withdraw and were compelled to accept the provisions of the amendment. They do not claim that they are not bound by the amendment, but say that they did not voluntarily accept it. Their position is best stated in their brief as follows:
“Therefore, these employers must have given such notice on or before June 17, 1927, if they desired not to operate under the act after July 1,1927. But the amendment in question did not become operative until September 5, 1927. Therefore, these employers liad no opportunity to withdraw from the effect of this amendment until June 17, 1928. For which reason we say the amendment was not elective as to defendants, and that the exceedingly dangerous waiver theory of American Life Ins. Co. v. Balmer, 238 Mich. 580, and Booth Fisheries Co. v. Industrial Commission, 271 U. S. 208 (46 Sup. Ct. 491), does not apply. Which means that these defendants are in a position to claim the unconstitutionality of the amendment. ’ ’
We do not agree with this contention. In conceding that they are bound by the 1927 amendment, the defendants must also concede that they elected to be governed by its provisions. In no other way could it bind them. There is nothing compulsory about the workmen’s compensation law. If an employer becomes subject to its provisions, it is because he has so elected. The State offers it to him. He may come in or stay out as he chooses. If he accepts it, he does so because of the benefits he will receive by escaping large damages in common-law actions by injured employees. And when he elects to come under the law to receive these benefits, he will not be allowed to question its validity. There is nothing dangerous about such a rule. It is both reasonable and just.
The defendants elected to become subject to this law. That section of the statute which provides for the filing of their election contemplates that there may be changes in its provisions. It provides that when an employer has filed his election and the board has approved it, he shall become subject to the “provisions of the act and all acts amendatory thereof.” So that by filing their election, these employers agreed, impliedly at least, to be governed by the provisions of any amendment that might be made to the act as it then existed. If they were not satisfied with the amendment, the statute gave them the right to withdraw at the end of the year. But until such withdrawal, they were hound by the amendment because they had elected to be bound by it. They agreed to come under the act and any “act amendatory thereof.” In this view of the case, the fact that they had no opportunity to withdraw their election after the amendment went into effect is wholly immaterial. The question under consideration is determined by the fact that when they filed their election they became subject to the law then existing and to any amendments that might be made thereto during the year following.
Furthermore, the liability of Boice Brothers to pay the plaintiff double damages in case of injury is contractual. They were not compelled to employ him. But they did so knowing that he was a minor with the same power under the statute to contract as an adult. In their contract of employment, it was agreed that they would be governed by the provisions of the 1927 amendment relating to the employment of minors. Having thus voluntarily made themselves subject to the amendment, can they now consistently claim that they did not elect to operate under it?
The case of Brenner v. Heruben, 170 Wis. 565 (176 N. W. 228), cited by counsel for the defendants seems to support their contention that Boice Brothers did not elect to become subject to the 1927 amendment. But that case is distinguishable not only in certain controlling facts, but is based on a statute quite different from ours. As we have already pointed out, our statute relative to the filing of a statement of election by the employer provides that the filing of the election and its approval by the board operates to subject tbe employer to tbe act then existing and to all acts amendatory thereof. There is no similar provision in tbe Wisconsin statute. For this reason, Brenner v. Heruben has no bearing on tbe question we are considering.
It is our conclusion that tbe defendants, having elected to become subject to tbe provisions of tbe 1927 amendment, are estopped to question its constitutionality.
The award is affirmed, with costs to tbe plaintiff. ■
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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On Rehearing.
North, C. J.
On plaintiff’s motion there has been a rehearing of this case. The facts are stated in O’Connor v. Automatic Irrigation Co., 242 Mich. 204. Plaintiff’s claim was for compensation for services rendered as a' salesman for the defendant under two separate contracts. The first was oral, and he worked under it in the State of Texas for substan tially three months. The second contract was in writing, and under it plaintiff worked in Ohio about eleven months. We held this Ohio contract was ambiguous, and that as to its terms of payment of compensation to the plaintiff it presented a question of fact for the jury. In so holding we reversed the decision of the lower court wherein this was held to be a question of law, and a verdict was directed for plaintiff. On this rehearing the plaintiff strenuously insisted that in holding the contract ambiguous we failed to apply proper rules of construction and reached an erroneous conclusion; and in any event, since both parties asked for a directed verdict in the trial court, the case should be disposed of on questions of law in this court instead of being remanded for a retrial.
Plaintiff’s right to. commission and to a monthly bonus was contingent upon “net sales” being made up to certain amounts fixed by the contract. But, other than quoted in the original opinion, there is nothing in the contract defining what is meant by “net sales.” The plaintiff asserts that it includes the sales of himself and the two subagents. The defendant says “net sales” means plaintiff’s personal sales. These conflicting claims cannot be determined from the face of the contract. This presented a question of fact which should have been determined by the jury. We so held in our. former decision, and we find no reason for altering it.
The trial court also sustained plaintiff’s claim that his commission for sales was earned as soon as orders taken by him were accepted by the defendant. The defendant claimed the commission was not due until payment was received from the purchaser to whom plaintiff sold. In making this contract the parties used one of defendant’s printed form con tracts consisting of 17 paragraphs or clauses. Clauses 2, 3, and 13 were stricken out of this form. The following was added:
“Clause No. 18 — Remuneration.
Expenses paid not charged up $50 per wk.
Salary — $120 per month.
Commission — 4% of net sales providing volume exceeds $1,500 per month.
Bonus — per schedule below.”
Clause No. 3, which was stricken, reads:
“No. 3. You are to take orders on blanks furnished by us, receiving as down payment the amount specified according to terms in effect at the time of sale. Yo-u will retain 50 per cent, of the amount so collected as advanced on your commission, the balance to be paid when customer has remitted for the sale in full. Commissions to be paid twice monthly, 10th and 25th. ”
As to the construction of this contract, plaintiff’s contention is that since the provision in clause No. 3: “The balance (of commission) to be paid when customer has remitted for the sale in full,” was stricken from the contract, it was not possible to construe clause No. 18 as providing that plaintiff’s commissions were not due him until the customer paid, notwithstanding the parties themselves so construed it. This contention in plaintiff’s brief is based upon the legal proposition that:
“An apparently analogous rule is that words inserted in a written contract and then erased by drawing lines through them may be referred to for the purpose of ascertaining the intent of the contracting parties. ” 6 R. C. L. p. 839.
There is no controversy about this principle of law when applied to a proper state of facts; but its inap plicability here is self-evident. Defendant’s printed contract provided for paying the agent on a commission basis only; one-half of the'down payment to be retained by the agent as an advancement on commission, and the balance of the commission to be paid when the customer had paid in full. But plaintiff’s contract was on the basis of a salary of $120 per month with expenses paid up to $50 per week, and with contingent commission and bonus. It needs no argument to demonstrate that the printed clause No. 3 was not at all suited to the terms of plaintiff’s contract, and hence this clause was stricken. It does not follow that there is a conclusive presumption this clause was stricken solely for the purpose of eliminating the provision relative to the time of paying the agent’s commission. The fallacy of plaintiff’s claim in this regard appears from the fact that this same clause was also stricken from the contracts of subagents and no other definite provision made therein as to when commissions were payable; but plaintiff seems to concede in his brief that the correspondence quoted in our former decision shows commissions were not due to the sub-agents until the customer paid. Plaintiff has sought to maintain in his present brief that the correspondence quoted applied to contracts of the sub-agents only. This cannot be so, because in admitting commissions were not due until the customer paid, the plaintiff stated in his letter: ‘ ‘ Otherwise I would have asked you for back commissions due me.” There are other portions of the record which indicate clearly that these parties understood and interpreted the contract to mean that the defendant would not pay commissions until it received pay from the customer. The plaintiff acquiesced in defendant’s deferring payment of commissions for months which would have been due to the plaintiff except for their mutual construction of this contract that plaintiff was not entitled to his commission on a sale until the customer paid. The reason for insisting upon this plan is thus stated in defendant’s letter to the plaintiff:
“That is, we do not let a salesman turn in a whole volume of orders and collect up to the hilt on such orders, and leave us holding the bag as far as collections are concerned. ’ ’
Because of the indefinite terms of the cóntract itself, and the construction which the parties have placed upon it by their acts and by their correspondence, it becomes a question of fact, rather than one of law, whether the plaintiff was entitled to commission when orders were accepted by the defendant or not until payment was made by the purchaser.
The plaintiff is urging on this rehearing that since both parties moved for a directed verdict as to the Ohio contract and no reversible error was found incident to the Texas phase of the case, this court should dispose of the case as one presenting issues of law only. Notwithstanding both parties asked for a directed verdict at the close of the proofs, their motions were denied, and the trial court properly held that as to the portion of plaintiff’s claim arising out of the Texas contract a question of fact was presented, and this was submitted to the jury. We stated in the former opinion that in the trial of this issue there was error in refusing one of defendant’s requests to charge, but we did not pass upon the question as to such error being sufficiently prejudicial to necessitate a new trial. Both in the original opinion and herein we have pointed out that the construction of the Ohio contract involves the trial of issues of fact which should have been submitted to the jury. For these reasons a retrial has been ordered. Plaintiff relies upon People’s Savings Bank v. Railway Co., 235 Mich. 399, but it is not in point under such a record as is here presented.
As heretofore ordered, the ease must be remanded for retrial. The appellant will have costs on this rehearing.
Fead, Fellows,"Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
Plaintiffs gave notice in probate court of a contest of the will of Marion V. Beynolds, their sister. Practically all the estate was willed to charitable and religious societies outside the State. C. Oscar Strand was named executor in the will. Under Act No. 281, Pub. Acts 1923, he petitioned for and was granted authority t,o employ counsel, obtain witnesses, and to take on the prosecution of the proceeding to establish the will. The will was admitted to probate. Plaintiffs in due season filed a notice of appeal, a surety company bond running to Strand and the devisees and legatees in the will, and the probate court made an order for service on Strand alone. In the circuit Strand moved to dismiss the appeal on the ground that he was not the adverse party; plaintiffs moved to bring in the devisees and legatees. Plaintiffs’ motion was denied, and the appeal was dismissed on Strand’s motion. The trial court having declined to entertain jurisdiction, we review on mandamus.
Before the enactment of the act of 1923, this court quite uniformly held that persons named as executors in wills and special administrators appointed by the probate court did not possess such an interest in the estate as to authorize them to expend money of the estate in a will contest, their duty being to conserve the estate and not to engage in a contest between heirs on the one hand and devisees and legatees on the other, in litigation which concerned them alone; and this court went so far as to treat expenditures of the money of the estate in a will contest as a dissipation of the assets of the estate. Zimmer v. Saier, 155 Mich. 388 (130 Am. St. Rep. 575); In re Keene’s Estate, 202 Mich. 646; Stover v. Wayne Probate Judge, 219 Mich. 566; In re Doty’s Estate, 231 Mich. 115. And in Emerson v. Wayne Circuit Judge, 232 Mich. 338, it was held that the administrator was not interested in litigation involving the validity of a will, and was not the “adverse party” under the statutory requirements providing for appeals from probate court. Unless the act of 1923 has, upon a proper order of the probate court being made, clothed the person named as executor in the will with greater authority and a greater interest in will contests than before existed, it must be held, following the cases cited, that his interest is not sufficient even with the added duties and Ms position in the litigation does not make Mm the “adverse party” to the contestants who are seeking the disallowance of the will. We think the legislature, which manifestly was familiar with our holdings, intended a change, and that the language of the act clearly so indicated and provided. Before the act the person who was named executor had nothing to do in a will contest; now upon proper order of the court he has everything to do with it; before the act, he could spend no money of the estate to sustain the will; now he may expend in sustaining the will such funds of the estate as may be necessary, subject, of course, to the approval of the probate court. Before the act he was not a party to the litigation; now he is a party and the active one. His duty now is, under the order of the court, to take such reasonable steps as may be necessary to sustain the will against the assaults upon it. We think the statute makes it clear that he is the adverse party to those seeking its disallowance.
The devisees and legatees named in the will were interested parties, and it was proper to bring them into the case by notice; they being nonresidents of the State, publication would be sufficient. Strang v. Hillsdale Circuit Judge, 108 Mich. 227.
The writ should issue as prayed.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
-Wiest, J.
Plaintiff, beneficiary in an insurance certificate, brought suit thereon in the St. Clair circuit, had judgment, and defendant reviews by writ of error.
Defendant is a fraternal beneficiary society, organized under the law of the State of Ohio, with its home office in that State, and a so-called chapter with a local cashier at the city of Port Huron, in this State. It issues benefit certificates to members complying with the provisions of its constitution.
The facts were in part stipulated and some testimony was taken. December 30, 1916, defendant society issued its certificate of insurance for $2,000 on the life of Selby James Ferris, payable to Susan Marie Ferris, his wife. July 10, 1918, Mr. Ferris disappeared from his home in the city' of Port Huron, and has not been heard of since. January 9, 1923, the insurance had lapsed for, nonpayment of premiums for the two preceding’ months, unless waived by previous dealings, and an application for reinstatement, purporting to be signed by Mr. Ferris, and so certified by defendant’s local cashier, but in fact signed by Mrs. Ferris, was made and the unpaid premiums deposited with the cashier. This application was forwarded to headquarters by the cashier, who knew of the disappearance of Mr. Ferris, but without divulging that fact. Thereafter Mrs. Ferris paid the dues, and, at the expiration of seven years from the time of disappearance of her husband, brought this suit to recover the benefit, relying on the presumption of death of the insured. The defense was fraud in procuring the reinstatement, and that, under the laws of the society and the true facts, no valid reinstatement was had, and the insured had lapsed himself from membership by failure to comply with a law of the society we will later mention. The reinstatement, even if valid under the doctrine of waiver, is of little importance, for the other point governs. After suit defendant deposited with the clerk of the court all premiums received from the beneficiary. Upon trial the court found the facts, stated conclusions of law, and entered judgment for plaintiff.
Two questions of practice are presented.and must first be considered. An order was entered within 20 days after judgment, extending the time in which to settle the bill of exceptions, upon a showing, by affidavit, that a transcript of the testimony had been procured from the court stenographer, but could not be reduced to form within the 20 days. Plaintiff’s subsequent motion to vacate the order on the ground that no certificate of the court stenographer, stating the transcript had been ordered and would be furnished, was filed, as required by 3 Comp. Laws 1915, § 12634, was denied. The court stenographer, having actually furnished the transcript to counsel for defendant, could not make a certificate in the language of the statute, and the showing made by affidavit was sufficient. The purpose of requiring the certificate is to inform the court that steps toward review are being promptly taken. The circuit judge was rightly guided by the sense of the statute.
Plaintiff requested findings, and the court found the facts and stated conclusions of law. Defendant made no such request, proposed no special findings, presented no amendments to the findings, and filed no exceptions within the time required by rule. Findings were filed and judgment entered April 9, 1928. June 7, 1928, defendant moved for an order granting leave at that time to file exceptions to the findings and attached proposed exceptions to the motion. The motion was denied. June 26th exceptions to the findings were filed without leave of court. The exceptions so filed cannot be considered. See Circuit Court Rule No. 45; Township of Clearwater v. Kalkaska Circuit Judge, 242 Mich. 263. This limits review to assignments of error upon rulings admitting and excluding evidence, if controlling of the result, and to the question of whether the findings support the judgment. The last question is presented by the ninth assignment of error.
Counsel for plaintiff contend that the assignment is multifarious and should be rejected. The point is too technical. We find no reversible error in rulings on evidence. This brings us to the question of whether the facts support the judgment.
In his application Mr. Ferris agreed in all respects to be bound by the laws of the society then in force or thereafter adopted.
In September, 1917, while the certificate was in force, and before the-insured disappeared, defendant society amended its constitution as follows:
“Any member of the American Insurance Union who shall abscond, depart, or disappear from his home, or last place of residence, and remain one year, without reporting to the cashier of his chapter his whereabouts * * * shall thereby lapse himself from membership in the society and his certificate shall thereupon become null and void.
“No cashier, representative or officer shall receive from any person any monthly premium or chapter dues on account of any such person. Should any cashier or officer accept such premium in violation of this section, the society shall not be liable to such member or his beneficiary except for the return of the premiums paid from and after the disappearance of the member.”
This amendment, if valid in this jurisdiction, served the purpose of preventing application of the presumption of death from disappearance and seven years unascertainable whereabouts, and also automatically rendered the policy null and void for failure of the insured (who was possibly dead) to notify the society of his new residence.
The circuit judge held that the contract was made in this State, and the validity of the amendment mentioned governed by the rule of law in this juris diction, and not foreclosed by any decision of a court of last resort in the State of Ohio, and adjudged the amendment unreasonable and void as to plaintiff’s rights.
Plaintiff invokes the lex fori as evidenced by Samberg v. K. O. T. M. M., 158 Mich. 568 (133 Am. St. Rep. 396), while defendant urges the lex loci, citing Tisch v. Protected Home Circle, 72 Ohio St. 233 (74 N. E. 188), and McGovern v. Brotherhood of Locomotive Firemen and Engineers, 12 Ohio C. C. (N. S.) 137, affirmed on authority of the Tisch Case, without opinion, in 85 Ohio St. 460 (98 N. E. 1128). Defendant invokes the full faith and credit provision of the Federal Constitution, and also contends that the insurance code of this State, enacted after decision in the Bamberg Case, and in the particular here involved identical with the insurance code of Ohio, renders the holding in that case inapplicable.
The insurance code regulating the business of fraternal beneficiary societies, foreign and domestic, and in effect when Mr. Ferris applied for membership and now in force, is found, as first enacted (1913) in section 9395, 2 Comp. Laws 1915, and as re-enacted (1917) in Comp. Laws Supp. 1922, § 9100 (196). An identical provision appears in the insurance code of the State of Ohio, and, it is stipulated, has been in force there at least since 1915. The Michigan code reads as follows;
“Every certificate issued by any such society * * * shall provide that the certificate, the charter or articles of incorporation^ or, if a voluntary association, the articles of association, the constitution and laws of the society and the application for membership and medical examination, signed by the applicant, and all amendments to each thereof, shall constitute the agreement between the society and the member, and copies of tbe same certified by tbe secretary of the society, or corresponding officer, shall be received in evidence of the terms and conditions thereof, and any changes, additions or amendments to said charter or articles of incorporation, or articles of association, if a voluntary association, constitution or laws duly made or enacted subsequent to the issuance of the benefit certificate shall bind the member and his beneficiaries, and shall govern and control the agreement in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership.”
This language is comprehensive, declaratory of rights, restrictive of remedies, a recognition of self-enacted regulatory laws and permits invocation of such laws in this jurisdiction, and, unless contrary to public policy, decisive in litigation by a beneficiary. Under the statutes of both States, supplemented by express • agreement of the insured to be bound by subsequent amendments to the laws of the society, plaintiff, beneficiary, is bound thereby.
The insurance codes of Michigan and Ohio, regulating fraternal beneficiary societies, have brought concord of laws on the subject here involved. Under the full faith and credit provision of the Constitution of the United States, a beneficiary certificate, issued by a fraternal beneficiary society, organized and existing under the laws of the State of Ohio, to a citizen of the State of Michigan, is governed by the laws of the society valid in the State of Ohio, and, in a suit in this State by the beneficiary, it may not be adjudged here that laws of the society valid there are unreasonable, and, therefore, void. The mutuality and unity of membership in such a nonprofit fraternal beneficiary society extends beyond State limits as between each member and the society, and the constitution of the society, being valid in the State of domicile of the society, is to be held valid and binding everywhere, unless in contravention of statute. See Mooney v. Brotherhood of Railroad Trainmen, 162 Minn. 127 (204 N. W. 957), reversing the former holding in the same case (202 N. W. 341).
Plaintiff contends that defendant may not invoke the mentioned amendment to its constitution, made in September, 1917, because it failed to file with the commissioner of insurance of this State a certified copy of the amendment within 90 days after enactment thereof. The amendment was filed with the commissioner of insurance in March, 1920.
The statute (Comp. Laws Supp. 1922, § 9100 [210]) provides:
“Every society transacting business under this chapter shall file with the commissioner of insurance a duly certified copy of all amendments of or additions to its constitution and laws within ninety days after the enactment of the same. Printed copies of the constitution and laws as amended, changed or added to, certified by the secretary or corresponding officer of the society, shall be prima facie evidence of the legal adoption thereof.”
This suit was commenced in March, 1927, and at that time the amendment had been on file with the insurance commissioner seven years. The statute provides no penalty for failure to comply, nor does it in terms suspend operation of an amendment until compliance. Actual notice of the amendment was given members in a publication put out by the society. We think the amendment operative, at least, from the date of filing.
In this jurisdiction, and perhaps all others, the presumption of death from seven years ’ absence and undiscoverable whereabouts is a rule of evidence, but here we are committed to the doctrine that until the presumption of death obtains the assumption of life remains. Beckwith v. Bates, 228 Mich. 400 (37 A. L. R. 819); Bailey v. Bailey, 36 Mich. 181. At the time the constitution of the society was amended, as above mentioned, the insured was a resident of the city of Port Pluron. For full seven years after his disappearance, there being nothing to show the contrary, the law assumed him to be living, and, therefore, capable of complying with the mentioned law of the society. At the expiration of seven years he was presumed to be dead, but, in the absence of evidence upon the subject, the presumption of death did not relate back to the date of his disappearance. Presumptively alive, he failed to comply with the law of the society, and automatically lapsed himself from membership, and the benefit certificate became null and void. This may be considered a hard rule, but we must remember that the society is a nonprofit one, and members sustain a mutual relation, make their own laws, and all are bound thereby if valid under the laws of the domicile of the society. Any other holding would destroy mutuality, favor some beneficiaries over others, and abolish uniform rights and remedies.
This is evidently what the Supreme Court of the-United States had in mind in Modern Woodmen of America v. Mixer, 267 U. S. 544 (45 Sup. Ct. 389, 41 A. L. R. 1384), in making the following statement:
“The indivisible unity between the members of a corporation of this kind in respect of the fund.from which their rights are to be enforced and the consequence that their rights must be determined by a single law, is elaborated in Supreme Council of the Royal Arcanum v. Green, 237 U. S. 531, 542 (35 Sup. Ct. 724, L. R. A. 1916 A, 771). The act of becoming a member is something more than a contract. It is entering into a complex and abiding relation, and as marriage looks to domicile, membership looks to and must be governed by the law of the State granting the incorporation. We need not consider what other States may refuse to do, but we deem it established that they cannot attach to membership rights against the company that are refused by the law of the domicile. It does not matter that the member joined in another State.”
The amendment was valid in Ohio. Tisch v. Protected Home Circle, supra; McGovern v. Brotherhood of Locomotive Firemen and Engineers, supra, violated no statute of this State, and, under the insurance codes of Michigan and Ohio, must be given effect.
The judgment is reversed, with costs of this court to defendant, and the case remanded to the circuit for entry of judgment in favor of plaintiff for the amount of the premiums paid after the disappearance of her husband.
North, O. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, J.
The plaintiffs herein were vendors in a land contract dated January 12,1927, whereby they contracted to sell and convey to the defendant eight parcels of land in Wayne county, Michigan, for a consideration of $1,837,500, of which $30,000 was paid before the execution of the contract. Further payments were to be made as follows: $20,000 March 1, 1927; $391,000 April 5, 1927; and the balance in annual instalments of $139,650, the final payment being due November 5, 1934. Neither the March nor the April payment was made, and a bill for foreclosure was filed by the vendors April 12, 1927. A hearing was had and a decree of foreclosure was signed and entered October 13, 1927, and enrolled November 9th following. There was a sale of the premises February 4, 1928, for $1,235,000. By stipulation, the amount of the deficiency decree taken against the defendant was limited to $400,000.
On the day of the sale the defendant filed a motion to set aside the decree of foreclosure on the ground that the mortgage tax had not been paid. Later (March 20, 1928) the defendant also made a motion for a stay of the confirmation of the mortgage sale and for an extension of time within which to move for a rehearing, setting up that he had been induced to enter into the contract with the plaintiffs by a misrepresentation that the parcels of land in question contained 1,000 acres, when in fact there were only 873 acres. These motions were denied, and the defendant has appealed.
The mortgage tax amounting to $9,037.50 was paid by the plaintiffs before the motion to set aside the foreclosure decree was brought on for hearing in the lower court. The motion was properly denied. Marussa v. Temerowski, 204 Mich. 271. And, further, the appellant seems to have abandoned his appeal from the order so entered by failure to present it in his brief filed in this court.
The defendant’s motion for an extension of time within which to move for a rehearing was made more than four months after the decree of foreclosure was entered. Circuit Court Buie No. 56, § 1, provides:
“No application for such rehearing shall be heard unless filed within four months from the entry of the final decree.”
In Union Trust Co. v. Detroit Trust Co., 240 Mich. 646 (quoting syllabus), it is said:
“Under Circuit Court Buie No. 56, rehearing may not be granted after the lapse of four months from entry of final decree, in the absence of a showing of fraud. ’ ’
As indicated above, the fraudulent misrepresentation here urged by the appellant, and which he says he believed and relied upon, is that he was told by the plaintiffs or their agents that there were 1,000 acres of land in the eight parcels covered by this contract; and he further asserts that he saw upon the premises a signboard which read: “This 1,000 acres to be developed by Kirby, Sorge, Felske Company.” By a survey made just before this motion was filed it was determined that there were only 873 acres, and Mr. Ellis claims it was then he first learned of the shortage. The appellant asserts that the price was made on an acreage basis of $1,750 per acre, to which was added $87,500 to be paid as commission, The plaintiffs deny making the misrepre sentation charged, and deny that the price made was on an acreage basis, and assert that instead a net price of $1,750,000 was fixed, and the amount of the commission was added. Numerous affidavits were submitted in support of these conflicting claims, and they are made a part of the record. We shall not attempt to review them in detail. We have examined the record carefully, and are convinced that it is not sufficient to sustain the defendant’s claim. The properties in question are traversed by five rights of way for highways, railroads, and an electric railway, and have a frontage upwards of a mile in length on the Detroit river. This makes the exact area uncertain; both because of the irregular shape of some of the parcels and because the parties unquestionably contemplated adding to the area by filling in many acres of the low and flooded lands. But abstracts and a blueprint which appellant possessed and of which he made use before the foreclosure case was heard, gave the acreage with reasonable certainty. From the blueprint and abstracts it clearly appeared that the total area, exclusive of the* submerged land, was less than 1,000 acres. There is a showing that the appellant, in the presence of a Mr. Joseph Kennedy, “figured out” from the blueprint the acreage involved. He also obtained, in November, 1926, a guaranty policy covering title to the land which embodied information as to acreage. The contract contained no reference to a price made- on an acreage basis; and it seems highly incredible that this amount of land with irregular boundaries .’would have been purchased through experienced real estate operators by a man of large means and business experience at a price of $1,750 per acre without a survey being made to ascertain the actual area, and without any provision being placed in the contract of purchase for an adjustment of the price in accordance with the shortage or excess of acreage when ascertained.
Even when fraud is alleged as the ground upon which a rehearing is sought after the expiration of the four-month limitation fixed by the rule, it ought not to be granted without there is reason to believe from the showing made that the charge of fraud can be sustained. Day v. Cole, 65 Mich. 154, 161. The decree which the defendant here seeks to have set aside upon a rehearing was entered by consent of the attorneys for the respective parties. We think on the merits the record is not such as to justify granting a rehearing or extending the time within which to make an application therefor.
The order of the lower court is affirmed, with costs to the appellees.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The questions involved on this appeal are whether the trial court was warranted in entering the decree made, and whether he should have granted defendants’ motion to set the same aside.
There seems to be but little, if any, dispute about the facts. They are thus stated by the trial judge: When the cause was called for hearing in open court at 9 o’clock in the forenoon of November 26, 1923, the court inquired if an effort at settlement had been made. He was informed that it had not, but that the attorneys would be glad to confer with that end in view. The court was advised from time to time during the day that a settlement was probable, but just before the usual time for adjournment he informed counsel that the hearing would better proceed. The request of defendants’ counsel for a little further time was granted, and soon thereafter the attorneys for the parties came into court and one of plaintiff’s attorneys stated to the court for the record:
“Counsel have announced in open court an adjustment and settlement of the matters in controversy, which involves the payment of $10,299 and government tax and interest in instalments, the first of which comes due Monday, December 3d, and on motion of both counsel the court ordered that the further hearing of the case be suspended until Monday, December 3, 1923, at 9:00 o ’clock in the morning. ” •
¥e quote from the judge’s statement:
“It is also true, and not disputed, however, that while not shown by the stenographer’s minutes, it was at the same time also stated in open court, in the hearing and recollection of the court, and evidenced by the written memorandum of Mr. Sempliner, attorney for defendants, that the sum of $10,299 was to be paid in the following instalments: $1,000 by the following Monday (December 3d), $1,500 by January 1st; $2,500 on March 1st; $2,500 on May 1st; and $2,799 on July 1st, with interest at 6 per cent., and that the case was to be held until payment of said amounts.”
"When the court convened on December 3d, it appeared that the defendants had dispensed with the services of the attorney above named and had retained local counsel. These counsel informed the court that the defendants could not meet the terms of the settlement agreed upon, and stated that in their opinion they were not bound thereby. Plaintiff’s counsel then asked the court to enter a decree pursuant to the terms of the settlement, and after some delay, during which time defendants filed objections thereto, such request was granted. Defendants soon thereafter moved to set the same aside, which motion was denied.
Circuit Court Eule No. 4 reads as follows:
“No private agreement or consent between the parties to a cause, or their attorneys respecting the proceedings in a cause which shall be denied by either party, shall be binding, unless the same shall have been made in open court, or unless evidence thereof shall be in writing subscribed by the party or his attorney against whom the same is alleged.”
When a settlement was arrived at, it might have taken the form of a decree of the court or an agreement embodying its terms, signed by the parties. The latter course was attempted, but, owing to the change of attorneys by the defendants, it was not consummated. Compromises of pending controversies are favored by the courts (Hull v. Swarthout, 29 Mich. 249), and will not be disturbed “unless on satisfactory evidence of mistake, fraud or unconscionable advantage.” Prichard v. Sharp, 51 Mich. 432.
No claim is made that the decree does not embody the terms of settlement as agreed upon and stated in open court. The fact that it was so stated clearly indicates that the parties were not thereafter to carry out a private agreement made between themselves, but. that it should be taken cognizance of by the court ánd enforced by it if necessary.
The decree is affirmed, with costs to appellee.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ'., concurred. | [
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Potter, J.
Plaintiff, as assignee of Page L. Carroll, filed a bill of complaint against defendants for an accounting, an abatement or reduction in the contract price of the lands involved for deficiency of title and warranty which defendants are unable to convey, specific performance, an injunction to restrain defendants from selling or disposing of any of the lands, in controversy, and from instituting suit to terminate plaintiff’s rights therein. Defendants filed an answer in the nature of a cross-bill, denying the material allegations of the bill of complaint, alleging the failure of Carroll and of plaintiff to comply with the contract between defendants and Carroll, and asking an injunction to restrain plaintiff from asserting any right or title to the premises, selling or offering for sale any further portion thereof,. and to cancel the quitclaim deed from Carroll and wife to plaintiff, remove the same as a cloud on defendants’ title to the premises, and for other relief.
Defendants were and are the owners of the lands and premises involved herein. January 25, 1924, they entered into a contract in writing with Page L. Carroll, plaintiff’s assignor, to sell him, in accordance with the contract, certain lands in Bay county described as:
“All of the land owned by said parties of the first part and comprising about 200 acres, more or less, situated in sections 32 and 33, town 15 north, range 5 east, and known as Bokotondon Beach lying on both sides of the Kawkawlin river at the mouth, and running along the shore of Saginaw Bay in a northwesterly direction as well as up the river toward the Detroit & Mackinaw bridge on the south side and near to the Henry street bridge on the north side of said river, less any land theretofore sold or contracted to be sold by said first parties and excepting any railroad and other right of way, and lot No. 1 fronting on the Bay shore farthest west as per plat made by Harold Jonkis in the fall of 1923.”
This contract was made by the parties with full knowledge of what the Jonkis plat showed. Defendants had owned the land in question for a considerable time. Carroll had been familiar with the premises from boyhood. There may have been some misconception as to the title of defendants to the land beyond and below the meander line, ’which had been laid bare by the recession of the waters of • Saginaw Bay, and a lack of familiarity with the cases of La Plaisance Bay Harbor Co. v. City of Monroe, Walk. Ch. 155; Lincoln v. Davis, 53 Mich. 375 (51 Am. Rep. 116); People v. Silberwood, 110 Mich. 103 (32 L. R. A. 694); People v. Warner, 116 Mich. 228; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387 (13 Sup. Ct. 110); State v. Fishing & Shooting Club, 127 Mich. 580; Ainsworth v. Hunting & Fishing Club, 159 Mich. 61; State v. Venice of America Land Co., 160 Mich. 680; Olds v. Commissioner of State Land Office, 150 Mich. 134. It is admitted both by Carroll and defendants that the opinion in Kavanaugh v. Rabior, 222 Mich. 68, was discussed by both parties during the negotiations for the sale of the property. This opinion was discussed by Mr. A. H. McMillan in the presence of both Carroll and defendants. Mr. Donnelly, the engineer employed by Carroll to plat the lands after the contract was entered into, says the State made claim to the land beyond the meander line and employed engineers to make a survey to determine the location of that line, that Carroll came to him in consternation and fear and told him the State’s surveyors were running a meander line through the property. October 28, 1924, several owners of property on the shore of Saginaw Bay held a meeting at the office of Stoddard & McMillan in Bay City where a tentative organization was effected for the purpose of instituting or defending necessary suits to hold the riparian property below the meander line against the claim of the State, which it alleged was unjustly claiming title to the land along the shore of Saginaw Bay. Of this meeting, plaintiff herein, was elected and acted as secre tary. An agreement was prepared to be signed and executed by the parties fixing the amount of their •individual contributions to the cause of contesting the State’s rights. Plaintiff, upon the trial of this case, testified that at the time this meeting was held, October 28, 1924, he knew all about the claim the State was making, and when he took the assignment and quitclaim deed from Mr. Carroll in September, 1925, he knew perfectly well what the claims of the State were and where the monuments designating the boundaries of the property were located. During the time the contract existed between defendants and Carroll, and prior to the assignment of Carroll’s rights to plaintiff, a number of lots were sold on contract. Many of the parties so purchasing defaulted and suit was instituted and their rights forfeited. An accounting was had between the parties. The trial court found that a reasonable and equitable computation under the circumstances showed plaintiff indebted to defendants in the sum of $15,000, and a decree was entered determining that as the amount owed by plaintiff to defendants on the contract, providing that if plaintiff paid to defendants the sum of $15,000 on or before March 10, 1928, defendants should deed the premises on the south side of the Kawkawlin river, except such parts as had already been conveyed by defendants to plaintiff, and that if plaintiff did not pay defendants the sum of $15,000 on or before March 10, 1928, plaintiff’s bill of complaint should be dismissed, and he should have no further right in the contract entered into between defendants and Carroll or in the premises described therein lying on the south side of the Kawkawlin river.
It is probably true both defendants and Carroll, at the time the contract was made between them? thought they could hold the title to the land between the meander line and the water’s edge. Neither of them seems to have made any investigation as to their legal rights. They were mistaken as to the law. Under the circumstances, where both parties contracted with notice and knowledge and no misrepresentation or fraud are alleged or proven, plaintiff is not entitled to relief.
We think the decree of the trial court was correct and should be affirmed, with costs.
North, C. J., and Fead, Fellows, Wxest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Clark, J.
In this workmen’s compensation case, where an award to plaintiff is reviewed on certiorari, the question is whether plaintiff was an employee or an independent contractor.
Plaintiff and another man were shown by defendant Faucett a strip of land, sufficiently described, from which they were to cut and to swamp all merchantable logs, at a certain price per log. Plaintiff was to pay a dollar a day for his board at defendant’s camp, and he was to pay for the use of tools furnished him by defendant. Plaintiff and his companion accepted the work. Plaintiff was injured when he had worked nearly two days. Mr. Faucett made out and sent to the department the usual form “report of compensable accident,” which is clearly and wholly to the effect that plaintiff was an employee.
The facts chiefly stressed as tending to show independent contract are that plaintiff had a definite strip to cut off; that his hours were not fixed except that he was expected to do a fair day’s work, and that he was paid by the piece.
The first matter in plaintiff’s behalf is the report of the accident, which is prima facie evidence that there was the relation of employer and employee. This evidence continues in force and in being until it is overthrown by other evidence. 31 Cyc. p. 1172. The department found in effect that it was not overthrown, for which there is support in the record. The finding that Mr. Faucett had such right of control over plaintiff as is characteristic of the relation of employer and employee' likewise has support in the record. The control here was not merely as to results. Mr. Faucett had the right to discharge plaintiff if he did not do a fair day’s work, and if his work was not satisfactory. Also, the contention was not made, and the evidence would be against it, that plaintiff might employ others to do the work assigned to him. It is not necessary further to review the evidence. The facts found by the department are supported by the record, and warrant the conclusion that plaintiff was an employee. Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918C, 664); Opitz v. Hoertz, 194 Mich. 626; Warner v. Hardwood Lumber Co., 231 Mich. 328.
Affirmed.
North, C. J., and Fead, Fellows, Wiest, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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] |
North, J.
In 1897 the plaintiff herein became a member of the Independent Order of Foresters, a mutual benefit fraternal insurance order, and the holder of a $2,000 benefit certificate or policy. In 1908 the plaintiff was required to pay an additional premium on his policy of $2.82 per month; but provision was made whereby these additional premiums might be borrowed from the order at four per cent, interest. The plaintiff elected to borrow the accruing premiums, and, with the interest thereon, they became a charge against his benefit certificate.'
In 1913 the defendant again readjusted its rates by assessing $2.60 per thousand on outstanding policies of the class held by the plaintiff. This amounted to $5.20 on plaintiff’s $2,000 policy, and was payable on or before January 1, 1914; but provision was made that the holder of the certificate might allow this additional assessment to be a lien against the same and pay four per cent, interest on the amount so accruing. This interest charge, amounting to $1.73 per month, was paid by the plaintiff from January 1, 1914, to May, 1916, at which time the plaintiff decided he would reduce his policy from $2,000 to $1,000. His original certificate was surrendered and another bearing the same number was issued to him May 23, 1916, in the amount of $1,000. From this time until and including February, 1921, the plaintiff continued to pay the monthly interest on the $260- which remained as an assessment against his policy.
A still further adjustment of the insurance rates of the defendant order was necessitated in 1917, and plaintiff’s certificate was subjected to an additional assessment of $50 due November 1, 1917; but with the same provision as before, viz., that the insured might pay four per cent, per annum on the extra assessment and allow the amount thereof to-remain a charge against his certificate. The plaintiff did not pay the 1917 assessment, and this item of $50 and accrued interest became and remained a lien against his certificate.
The plaintiff’s policy provided for the payment of an old age disability benefit when the insured attained the age of 70 years. This benefit was 70 per cent, of the amount of the policy after deducting all indebtedness or liens against the same. The plaintiff became 70 years of age July 1, 1924, and on that day he made application for the amount due him Tinder the old age disability provision of his policy. In the course of adjusting the amount due to plaintiff, he was advised by letter that the defendant had charged against his policy the following items:
“Amount borrowed under the 1908 readjustment with interest...............$151.45
1913 assessment with interest.......... 262.60
1917 assessment with interest.......... 64.53
“Total debt.....■.................$478.58”
Thereafter, and on July 31, 1924, the plaintiff signed the following general release:
“General Belease.
“Know all Men by These Presents, that I, Geo. W. Smith, in consideration of the sum of ($700.00) Seven Hundred Dollars less $478.58 owing order a/c borrowing liens and interest to me or us in hand paid, the receipt whereof is hereby acknowledged, do hereby remise, release and forever discharge the Independent Order of Foresters, its successors and assigns, of and from all claims and demands whatsoever and especially all claims under Certificate Ño. 214878 issued to Geo. W. Smith of Court Chicago No. 3044.”
On the day the above release was given the plaintiff accepted the defendant’s check for $231.10 in payment of the balance of the $700 old age benefit provision and also of an item amounting to $9.68 as the plaintiff’s share of the surplus resulting from the 1917 assessment. Plaintiff’s indorsement on the back of this check contained this recital:
‘ ‘ The indorsing of this checque acknowledges that the amount thereof is in full of claim for benefits' under certificate No. B. C. 214878.
(Signed.) “Geo. W. Smith.”
This suit was brought by the plaintiff to recover an amount which he claimed was still due to him under the old age disability provision of his policy, it being his contention that the payment received by him was only a partial payment of the amount due. The defense is that the payment made July 31, 1924, was a full, fair, and final settlement of all that was due .the plaintiff under his policy. The case was tried by the court without a jury and the plaintiff had judgment for $558.70. The defendant filed timely exceptions to the findings of fact and conclusions of law. Among other questions raised, it is asserted by the defendant that paragraph four of the findings is 'Contrary to the clear weight of evidence. This paragraph is as follows:
“Plaintiff’s claim is not.barred by the one year limitation for the bringing of legal action for the reason that delay on the part of plaintiff was occasioned by the repeated promises and misrepresentations of defendant’s officers that the matter of the amount still due would be adjusted by the high court of the order, and that plaintiff was led to believe by defendant’s duly authorized agents, that the matter was in process of adjustment, under subsection 1 of section 201, of defendant’s bylaws.”
The constitution and bylaws of the defendant order are made a part of the plaintiff’s policy, and section 201 of the constitution contains the provision that all civil actions instituted against the order shall be brought within one year after the right of action has accrued. As noted above, the plaintiff made claim to his old age disability indemnity July 1, 1924,'and so-called settlement of which he complains occurred July 31, 1924. This suit was instituted August 18, 1927, more than three years after plaintiff’s claim was first presented. Section 201 of the defendant’s constitution also provides that a person having a claim under one of its policies shall not be entitled to bring any legal proceedings against the order until all the remedies provided by its constitution and bylaws have been ■ exhausted. The plaintiff testified that he accepted the payment made to him July 31, 1924, because the defendant’s supreme secretary informed the plaintiff: “That he would bring my case before the executive council at. the regular meeting held September 14,' 1924.” This representation must have been made to the plaintiff on or before July 31, 1924, and it is urged as a waiver on the part of the defendant and as a justification for plaintiff’s delay of over three years in bringing this suit. This contention was sustained by the finding of the circuit judge above quoted. We are of the opinion that in this there was error. A careful examination of the record reveals no justification for plaintiff’s delay of over three years in bringing his suit: The one-year limitation in plaintiff’s policy within which suit could be brought was valid and binding upon him. He failed to comply with this requirement of his insurance contract and it should have been held to be a defense to plaintiff’s suit. Betteys v. Insurance Co., 222 Mich. 626, and cases cited. Other items of testimony than that above quoted -are relied upon by the plaintiff as constituting a waiver, but in our judgment they are not sufficient. So far as appears from the record, plain: tiff’s claim was never presented to the executive council and no other or different attempt than that above indicated was made by the plaintiff to have his claim submitted to and considered by that body. Nor is it shown that the plaintiff ever made any inquiry to ascertain what had been done, if anything, incident to having his claim so submitted. There is no proof of any other fact or circumstance which would put the plaintiff off his guard as to the necessity of acting promptly. The only fair conclusion to be drawn from the record is that the plaintiff sat idly by for oyer three years after his settlement with the defendant. Under the terms of his insurance certificate whatever right of action he had was barred long before suit was brought. In arriving at this conclusion we have not been unmindful that:
“A forfeiture is not favored either at law or in equity and a provision for it in a contract will be strictly construed and courts will find a waiver upon slight evidence, when the equity of the claim made * * * is, under the contract, in favor of the insured.” Lyon v. Insurance Co., 55 Mich. 141 (54 Am. Rep. 354).
However, careful consideration of this record brings the conclusion that the “equity of the claim” in this instance is not with the plaintiff; but, on the contrary, that in the settlement of July 31, 1924, the plaintiff received the full amount to which he was entitled under the terms of his policy.
The judgment will be reversed and no new trial ordered. The appellant will have costs of both courts.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant in justice’s court on all the common counts in assumpsit. Defendant pleaded former adjudication in bar. There was judgment for plaintiff. Defendant appealed to the circuit court, where there was judgment for de fendant because of a former adjudication. Plaintiff brings error.
The only question is whether defendant’s plea of former adjudication in bar was properly sustained.
Plaintiff, prior to the commencement of this action, brought suit in justice’s court against defendant in trespass on the case, alleging defendant obtained from her $500 by false representations, fraud, and deceit. She recovered judgment in that case in justice’s court, which was reversed by the circuit court, where a judgment of not guilty was entered, which judgment remains in full force and effect. This prior judgment was held by the trial court to bar the maintenance. of plaintiff’s action in as- • sumpsit in the case at bar.
/'■' Defendant obtained money from plaintiff which ( he has not repaid. One may not take contradictory ¡ positions in asserting a right in court, if the assertion of plaintiff’s right in the first case involves a negation of the right as claimed in the second case. Thompson v. Howard, 31 Mich. 309; Black v. Miller, 75 Mich. 323; Mintz v. Jacob, 163 Mich. 280; Brewster Loud Lumber Co. v. General Builders’ Supply Co., 233 Mich. 633; Willard v. Shekell, 236 Mich. 197. An action of trespass on the case for fraud and dej ceit does not involve the same issue as an action of ; assumpsit for breach of contract to repay money lent. Ballett v. Gordon, 128 Mich. 364. There is no inconsistency in the remedies. Mintz v. Jacob, supra; Humiston, Keeling & Co. v. Bridgman, 195 Mich. 82; Pierce v. Mitchell, 87 Vt. 538 (90 Atl. 577); 9 R. C. L. p. 961. That defendant was found not guilty of fraud and deceit in obtaining plaintiff’s money does not prove he does not owe it. Nothing short of satisfaction of plaintiff’s claim waives any concurrent remedy. Rowell v. Smith, 123 Wis. 510 (102 N. W. 1, 3 Ann. Cas. 773); American Process Co. v. Pressed Brick Co., 56 Fla. 116 (47 South. 942, 16 Ann. Cas. 1054); Mills v. Parkhurst, 126 N. Y. 89 (26 N. E. 1041, 13 L. R. A. 472); 34 C. J. pp. 848, 849.
Judgment reversed, and judgment will be entered for plaintiff, with costs.
North, C. J., and Fellows, Clark, McDonald, and Sharpe, JJ., concurred. Fead and Wiest, JJ., concurred in the result. | [
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] |
Potter, J.
Plaintiff brings certiorari to review mandamus proceedings commenced by it in the circuit court for Calhoun county against defendants to compel them to levy and assess a tax against the property of the school district. The pleadings raise issues rendered unimportant by the stipulation that the only question to be determined is:
“Has the Battle Creek school board the legal right to build new buildings and raise by taxation the necessary funds to pay for the same without submitting to the voters of said school district any question regarding said buildings or the raising of funds to pay for the same?”
The trial court answered this question in the negative, and this court is asked to reverse the ruling below.
Plaintiff is a State agency created by law to carry forward the educational policy of the State. Stuart v. School District, 30 Mich. 69; Belles v. Burr, 76 Mich. 1; Muskegon Public Schools v. Wright, 176 Mich. 6; Detroit Common Council v. Engel, 202 Mich. 536; Child Welfare Society v. School District, 220 Mich. 290. It derives its power and authority from the Constitution and law of the State.
Under our Constitution “all political power is inherent in the people,” Constitution, Art. 2, § 1, and remains there, except as delegated by Constitution or statute. Plaintiff is organized under Act No. 490, Laws 1871. No authority is conferred upon either plaintiff or the Battle Creek school board, by the express language of Act No. 490, Laws 1871, to build new school buildings or to raise by taxation the necessary fuhds therefor without a vote of the people of the district. Section 1 of Act No. 490, Laws 1871, provides:
‘ ‘ Such district shall have all the powers and privileges conferred npon school districts and union school districts by general law.”
Section 3 of Act No. 490, Laws 1871, provides:
“Said board of trustees shall have all the powers and privileges conferred npon district and union school district boards by general law.”
At the effective date of Act No. 490, Laws 1871, section 21 of chap. 58 of the Revised Statutes of 1846, as amended by Act No. 67, Laws 1855, Act No. 176, Laws 1861, and Act No. 110, Laws 1869, stood as section 21 of chap. 136, 1 Comp. Laws 1871, and vested the specific power and authority in question in the electors of school districts. All powers and privileges conferred upon school districts and union school districts by general law and upon district and union school district boards, by general law, were conferred upon the district and the board of trustees of plaintiff respectively, as fully and completely as if the provisions of the general school law had been embodied as separate sections in Act No. 490, Laws 1871.
Section 4 of Act No. 490, Laws 1871, was amended by Act No. 341, Local Acts 1877. By the amendment it was made the duty of the board of trustees of the public schools of the city of Battle Creek
“to provide all necessary appendages for the schoolhouses, and to keep the same in good condition and repair; * * * to establish, locate, and maintain a-high school, grammar and primary schools, and generally to do all things needful and desirable for the maintenance, prosperity, and success of the schools in said district, and the promotion of the thorough education of the children therein.”
Plaintiff contends this language confers upon the hoard of trustees the power to build schoolhouses. The language conferring such power is “to establish, locate, and maintain a high school, grammar and primary schools.” If Act No. 490, Laws 1871, as amended by Act No. 341, Local Acts 1877, did not in express language confer upon the district all the powers and privileges conferred upon school districts and union school districts by general law, and upon the trustees of the said school district all the powers and privileges conferred upon district and union school district boards by general law, this might be true; but in the general school law there was express language vesting the power and authority to build schoolhouses and to raise money by taxation therefor in the voters of the school district, and there is no language in Act No. 490, Laws 1871, as amended by Act No. 341, Local Acts 1877, or subsequently, which expressly confers authority upon the board of education of the public schools of the city of Battle Creelc to build schoolhouses and to raise the money therefor by taxation.
In 2 Lewis’ Sutherland Statutory Construction (2d Ed.), § 491, it is said:
“Specific provisions relating to a particular subject must govern in respect to that subject, as against general provisions in other parts of the law which might otherwise be broad enough to include it.”
Act No. 164, Pub. Acts 1881, repealed chapter 58, Revised Statutes of 1846, as amended, and revised and consolidated the laws relating to public instruction and primary schools. All provisions of this act were made applicable to every school district, township, city, and village in this State except such as might be inconsistent with the provisions of some special act. Section 10, chap. 13, Act No. 164, Pub. Acts 1881 (2 Comp. Laws 1915, § 5760). By Act No. 164, Pub. Acts 1881, the power and authority in question was vested in the electors of school districts and not in the school board, trustees, or board of education. When the action in question was taken, Act No. 319, Pub. Acts 1927, was in force. By the provisions of section 9, chap. 2, Act No. 319, Pub. Acts 1927, such power and authority was vested in the qualified voters of primary school districts. The laws governing public schools in any district of the third class, into which classification plaintiff’s population would place it, were expressly continued in force, unless the school electors by a majority vote of the district voting thereon decided to adopt the provisions of Act No. 319, Pub. Acts 1927. No referendum has ever been had. The provisions of Act No. 319, Pub. Acts 1927, were never adopted by plaintiff. Smith v. School District, 241 Mich. 366. Act No. 164, Pub. Acts 1881, was expressly repealed by Act No. 319, Pub. Acts 1927.
In Darmstaetter v. Moloney, 45 Mich. 621, 624. it is said:
“The rule that a piece of legislation for a particular city which adopts under general words of reference a specific regulation in a separate general law is not to be taken as adopting prospectively, the future alterations in the provision of the general law so appropriated, unless the intent therefor is ex* press or strongly implied.”
See, also, 36 Cyc. p. 1094; 2 Lewis’ Sutherland Statutory Construction (2d Ed.), §405; Queen v. Inhabitants of Merionethshire, 6 Q. B. 343; Queen v. Inhabitants of the County of Brecon, 15 Q. B. 813; Nunes v. Wellisch, 75 Ky. 363; Sika v. Railway Co., 21 Wis. 370; Spring Valley Waterworks v. San Francisco, 22 Cal. 434; Ventura County v. Clay, 112 Cal. 65 (44 Pac. 488); Commonwealth v. Kendall, 144 Mass. 357 (11 N. E. 425); Shull v. Barton, 58 Neb. 741 (79 N. W. 732).
“There is another form of adoption wherein the reference is, not to any particular statute or part of a statute, but to the law generally which governs a particular subject. The reference in such case means the law as it exists from time to time or at the time the exigency arises to which the law is to be applied.” 2 Lewis’ Sutherland Statutory Construction (2d Ed.), § 405.
In Cole v. Wayne Circuit Judge, 106 Mich. 692, it is said:
“Section 8307 [2 How. Stat.] does not limit the procedure upon appeal to the provisions of the justices’ act as they then existed. It provided by general reférence to another law, and is intended to furnish, a rule for future conduct, ‘always to be found, when it is needed, by reference to the law existing at the time when the rule is invoked.’ End. Interp. Stat. §493; Kugler’s Appeal, 55 Pa. St. 123.”
The rule stated as adopted and applied in Cole v. Wayne Circuit Judge was applied in Kugler’s Appeal, supra; Jones v. Dexter, 8 Fla. 276; Harris v. White, 81 N. Y. 532; Luzader v. Sargeant, 4 Wash. 299 (30 Pac. 142); Newman v. North Yakima, 7 Wash. 220 (34 Pac. 921); Ford v. Durie, 8 Wash. 87 (35 Pac. 595, 1082); School District v. Fairchild, 10 Wash. 198 (38 Pac. 1029); State, ex rel. Smith, v. Parker, 12 Wash. 685 (42 Pac. 113); City of St. Louis v. Gunning Co., 138 Mo. 347 (39 S. W. 788); Gaston v. Lamkin, 115 Mo. 20 (21 S. W. 1100).
In Culver v. People, 161 Ill. 89 (43 N. E. 812), it is said:
“The general rule is, that an act, which adopts by reference the whole or a portion of another statute, means the law as existing at the time of the adop-. tion, and does not include subsequent additions or modifications of the statute so adopted, unless it does so by express or strongly implied intent. (Endlich on Inter, of Statutes, § 85, and cases in note 107; Sutherland on Stat. Const. § 257, and cases in note 4; Darmstaetter v. Moloney, 45 Mich. 621; Knapp v. Brooklyn, 87 N. Y. 520; Kendall v. United States, 12 Pet. U. S. 524; Matter of Main Street, 98 N. Y. 454.) This rule seems to be strictly adhered to, where the prior act is particularly referred to in the adopting statute by its title. (Jones v. Dexter, 8 Fla. 276.) Where, however, the adopting statute makes no reference to any particular act by its title or otherwise, but refers to the general law regulating the subject in hand, the reference will be regarded as including, not only the law in force at the date of the adopting act, but also the law in force when action is taken, or proceedings are resorted to.”
We think this rule applicable, because (a) of the language of Act No. 490, Laws 1871, as amended, and (b) the express language of section 10, chap. 13, Act No. 164, Pub. Acts 1881 (2 Comp. Laws 1915, § 5760). If Act No. 490, Laws 1871, incorporated the general law relating to school districts then in force, and subsequent amendments to the general school law do not affect that part of the school law adopted thereby, the effect of the statute is in all respects the same as if the express provisions of the general law were incorporated in and enacted by Act No. 490, Laws 1871, and the board of education had no power or authority to build schoolhouses or to appropriate money to build them; the power and authority to build them and to vote money therefor is vested in the electors of the school district.
If it was the intention of the legislature by Act No. 490, Laws 1871, as amended, and Act No. 164, Pub. Acts 1881, that the local law in force in the school district should include and incorporate the general school law of the State as amended from time to time, then plaintiff is not entitled to relief because by Act No. 164, Pub. Acts 1881, the power and authority to raise money for building schoolhouses was vested in the electors of the school district and not in the school board or board of education. The learned trial judge, in an able and exhaustive opinion, held that the legal right to build new school buildings and raise funds to pay for the same by taxation was vested in the qualified voters of the school district and not in the school board. We tbinlr his holding correct. Plaintiff is not entitled to the relief prayed.
The judgment of the trial court is affirmed, but without costs.
Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. North, C. J., did not sit. | [
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Fellows, J.
Defendant Rudolph Engel owned a valuable farm of 160 acres in St. Clair county. He raised quite a considerable family, and signed notes ■with a couple of the boys at plaintiff bank, one for $500 with John and a smaller one with William. The one given by John ran for many years, but finally judgment was rendered on it in the circuit court for $603.55 and costs; judgment was also rendered on the one given by William in justice’s court for $42 and costs; a transcript of the latter judgment was filed in the circuit and executions were issued on both of them and were returned unsatisfied; alias executions were issued and levied upon the farm and this bill in aid of execution was filed.
■ Rudolph and his wife mortgaged the farm for $4,000, used part of the money to buy a house in Tale, the title to which was taken in them as tenants by the entireties, and deeded the farm to their son Fred and his wife Emma, who are the other defendants. This quite effectually made Rudolph execution proof. On the hearing, the judgments, executions with their returns, the levies, deeds, and mortgages were introduced, and, under Comp. Laws Supp. 1922, § 12897—
‘ ‘ The burden of proof shall then be upon the judgment debtor, or the person or persons claiming through or under him or the person or persons whom it is claimed are holding property in trust for said judgment debtor to show that the transaction or transactions are in all respects bona fide or that such person or persons are not holding as a trustee or trustees of said judgment debtor.”
The trial judge, after hearing the testimony of the parties, was satisfied that the deed to Fred and his wife was without consideration and in fraud of plaintiff’s rights as a creditor, and set it aside. No levy had been made on the Tale propertyj so no relief was granted against it.
A preliminary question should be first disposed of. Defendants insist that under section 12301, 3 Comp. Laws 1915, plaintiff may have no relief as to the smaller judgment because it is for less than $100, and Matteson v. Matteson, 132 Mich. 516, is relied upon. If the smaller judgment was the only one involved, that case would be controlling, and we would have to dismiss the bill. But here plaintiff has one judgment for $603.55 and another for $42, so that the amount really involved is $645.55. That amount gives the court jurisdiction under the statute cited, and the fact that it is evidenced by two judgments does not oust the court of jurisdiction as to the cause of action or any part of it.
Defendants claim that this valuable farm was deeded to Fred and his wife to pay him for his work on the farm after he was of age; the deed was executed shortly after their marriage and was recorded shortly after this suit was instituted. If there was due to Fred for his work the amount disinterested witnesses testify the farm is worth above the mortgage, he certainly has earned much more than the average farmer or farm hand is making in this day and age. The transaction has much more the appearance of a wedding present than the payment of an indebtedness. We have no hesitancy in agreeing with the trial judge that it was given to prevent the plaintiff from securing payment of its indebtedness.
The decree will be affirmed, with costs of this court to plaintiff.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This suit was brought to set aside a special assessment for the paving of Emmons boulevard in the city of Wyandotte, Michigan. It is the theory of the bill that Emmons boulevard is not an ordinary street, but is a boulevard within the meaning of the charter of the city of Wyandotte; that it was dedicated and accepted as such, and that the city charter designates the improvement of boulevards as a general public improvement to be paid for by the city at large. The defendant contends that Emmons boulevard is not now and never was a boulevard within the meaning of the law, and that under the provisions of its charter the cost of paving it was properly assessed against those specially benefited. On the hearing, the circuit judge ac eepted the defendant’s view of the law and the facts and entered a decree dismissing the bill. From this decree, the plaintiffs have appealed.
'The first question to be considered is whether Emmons boulevard is a boulevard within the meaning of the law. It is conceded that it was designated as a boulevard in the plat which was approved and accepted by the village of Ford, where the subdivision was then located. The village was subsequently annexed by the city of Wyandotte'. But counsel for the defendant contend that the mere designation in a plat of a street as a boulevard does not of itself fix its legal status as such. With this contention we agree. But there was more evidence of its status than a mere designation by name on the plat. Mr. Welch, one of the owners of the property who assisted in preparing the plat, was a witness on the hearing. He testified:
“Tour honor, this states very plainly and it is so drawn by the engineer, that this is a boulevard, and there was no question—
“The Court: That is the name of it.
“A. That is the name of it, and that indicates there is a parkway in the center, and it is marked as a boulevard — it is drawn as a boulevard. Of course, we gave extra land for this boulevard, to make it a grand boulevard. For instance, the next highway, next street, is only 50 feet and this is 80, so we dedicated extra ground to make it a boulevard. 5 ’
The witness also testified that he planted trees on the boulevard and that he paid for an ornamental lighting system which the city of Wyandotte subsequently installed. It further appears from the plat that Emmons boulevard is the only street on the plat that extends through to the Ecorse river. In all of these ways it was different from any other street in the plat. Its width, its length, its parkway in the center, its trees, and the ornamental lighting system are characteristics of a boulevard as that term is known in the law.
“A boulevard is a public street which is usually of greater width than ordinary business streets, and is given a parklike appearance by reserving spaces at the sides or center for shade trees, flowers, seats and the like, and ordinarily it is not used for heavy teaming.” Haller Sign Works v. Training School, 34 L. R. A. (N. S.) 998 (249 Ill. 436, 94 N. E. 920).
See, also, 9 C. J. p. 143.
We find it established by the evidence that Emmons boulevard is in law and fact a boulevard. At the time the subdivision in which it is located was annexed by the city of Wyandotte, it had been dedicated and accepted as such and still retains that status. MacLachlan v. City of Detroit, 208 Mich. 190; Miller v. City of Detroit, 244 Mich. 38.
Having found it to be a boulevard, the next question is whether the charter of the city of Wyandotte provides for its improvement at the expense of the city at large or by special assessment.
In sections 3, 6, and 7, chapter 14, of the charter, it is provided:
“Section 3. Subject to the provisions of this charter, the city may acquire, own, establish, operate and maintain public utilities for supplying water, heat, light, power and transportation to the city, and to the inhabitants thereof; and may also acquire, own, improve," maintain, constrnct and operate parks, public recreational and play grounds, boulevards, cemeteries, hospitals, alms houses and plants necessary for the disposal of sewage and garbage, etc.
“Sec. 6. All public improvements herein above provided for, either by specific mention or by implication, shall be considered general public improvements. The cost and expense of acquiring the foregoing permanent public improvements shall be paid by the city, etc.
“Sec. 7. The council shall have power to provide for the payment of all or any part of the cost of construction, reconstruction, repair, operation or maintenance of any structure or work in the nature of public improvement, by levying and collecting special assessments upon property specially benefited.”
The defendant claims section 7 as its authority for levying a special assessment to defray the cost of paving Emmons boulevard.
The charter distinguishes between public improvements and general public improvements. It designates the acquiring, and maintaining of boulevards as general public improvements. As section 7 relates to public improvements only, it does not apply to boulevards, and therefore does not authorize the city to improve or maintaiii a boulevard by assessment upon property specially benefited. Section 1 of the charter provides that general improvements shall be paid for by the city at large, and as the paving of Emmons boulevard is such an improvement, it follows that the cost thereof must be paid by a general assessment.
The special assessment complained of by the plaintiffs is void and should be set aside. A decree so providing will be entered in this court, with costs to the plaintiffs.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
Alonzo Middleton and his wife, Carrie B., Floyd Wing and his wife, Ruth, were jointly prosecuted and convicted of having in their possession intoxicating liquor. What disposition was made of the conviction of the wives does not appear from the record. Alonzo and Floyd alone review their convictions. The home was owned by Mrs. Middleton and was occupied by her and her husband. Ruth Wing was their- daughter, and defendants ’ testimony establishes beyond question that she and her husband with their little baby were temporarily staying with her parents and paying board while they were completing a house of their own. There was a search of the premises under a valid search warrant based on an affidavit, correct in form, sworn to by one ITagen stating that he purchased a gallon of whisky of defendant Middleton at the premises on July 3, 1927, at about 5 o’clock in the afternoon.
1. Defendants’ motion to suppress was supported by several affidavits, all tending to show that none of the defendants were at the Middleton home at or about 5 o ’clock of July 3d. Defendants called Hagen and examined him in open court. His testimony established, if believed, that he was mistaken in the date, and he testified that he purchased the liquor on the 2d. The showing of absence from home on this date was quite negligible. Defendants insisted in the court below, and do here, that they were justified in denying the truth of the facts alleged in the affidavit on their motion to quash on the authority of People v. Burt, 236 Mich. 62. While we would be justified in disposing of this question by simply saying that if the showing made presented a question of fact for the determination of the court, the trial judge correctly decided it, we do not think we should even tacitly acquiesce in the contention that the Burt Case opens the door to a denial of or a trial upon all the facts alleged in the affidavit, those which do not go to the jurisdiction as well as those which do. In that case we had before us the method to be used to effectuate the portion of section 30, Act No. 336, Pub. Acts 1921 (Comp. Laws Supp.' 1922, § 7079 [30]), which protected the private dwelling from unreasonable search, and which rendered it immune from such search so long as it retained the character of a purely private home. Mr. Justice Bird there entertained the view that the people must establish on the trial that it had lost such private character before there could be a conviction. t The balance of the court agreed that the legislature had expressly inhibited the search under a search warrant of a purely private home and had guaranteed its owner from such unreasonable search and that such right could be protected by permitting the home owner, on a motion to suppress, to traverse the allegations of the affidavit that the house was used for a prohibited purpose. So if it had been alleged in the affidavit that the home was a “place of public resort,” etc., the proper place to dispute and try out that question was on motion to suppress. What the court there held was that the section cited guaranteed to the purely private dwelling the right of immunity from unlawful search and pointed out the method of protecting such right. It was not intended and clearly was not held, that the section cited opened the door to a trial of all and every allega tion of fact set up in the affidavit. The trial judge both as matter of fact and of law correctly overruled the motion to suppress.
2. It is next urged that the1 section of the act (section 3, Act No. 53, Pub. Acts 1919 [Comp. Laws Supp. 1922, § 7079(3)]) defining “intoxicating liquors,” requires that the liquors be.“capable of being used as a beverage” and it is insisted that there may not be a conviction unless the people establish that the liquor in question was potable. State v. Umlauf, 169 Minn. 422 (211 N. W. 475), is relied upon, and it unequivocally supports defendants’ contention. Defendants moved for a directed verdict on this ground. We need not at this time decide whether we will follow the Minnesota holdings or not, as we are satisfied that there was sufficient testimony that the liquor was drinkable to take the question to the jury. The sheriff testified:
“There was an aunt or mother-in-law in the kitchen, then we proceeded through the dining room into the front room. There were four men in the front room drinking, but none of them were the respondents. Mr. West went upstairs and brought some intoxicating liquor down. It was delivered over to my possession then and I loaded it into my car and took it to the jail and delivered it to a chemist. ’ ’
Of the liquor seized one sample • disclosed an alcoholic content of 33.40 per cent., another 32.20 per cent., another 37.85 per cent. If the four men were drinking the liquor it was some evidence that it was potable; if it contained the alcoholic content testified to by the chemist, it was intoxicating. The court did not err in refusing to direct a verdict for this reason.
3. All the testimony on the subject showed that Mr. and Mrs. Wing were temporarily boarding with Mr. and Mrs. Middleton, paying $5 a week each for their board, and waiting until their own home was ready for occupancy. Mr. Wing worked for the Standard Oil Company. They had a room upstairs and were getting ready for bed when the raid was made. No liquor was found in their room, and there is not a word of testimony showing that they, or either of them, had anything to do with it. Defendants’ counsel moved for a directed verdict for them, which motion was refused. He also preferred an appropriate request on the subject, which likewise was refused, and the court charged the jury:
“And you are further charged that it is the law that it is not necessary that the respondents actually have the intoxicating liquor (I have given that to you in another way) in question in this case in their physical possession, but if this liquor was in the home occupied by the respondents, it is, under the law, in their possession, and it is your duty to render a verdict of guilty as charged against all of said respondents, if you so find beyond a reasonable doubt. ’ ’
Upon this branch of the case the trial judge was clearly in error. Earlier decisions pointed the way to a correct decision of this question, but it was directly decided in People v. Harter, 244 Mich. 346, handed down since the trial of the instant case in the court below.
The conviction of defendant Middleton will be affirmed, that of defendant Wing reversed, and he ■will be discharged.
Eead, C. J., and North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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Fead, J.
November 1, 1916, John and Ida Stewart sold certain premises on land contract to Jonathan A. Zahn for $15,000, with down payment of $2,500 in cash, note and security. Zahn became in default on the contract, and on June 1, 1920, the Stewarts had decree of foreclosure in chancery, which provided for sale of the premises and redemption period of six months after sale. No sale was made under the decree. Charles E. and Alice M. Fales were named as defendants in the decree, but the reason did not appear, as the chancery proceedings were not made a part of the record in this court, although they were in. evidence and apparently were used by the chancellor in stating the facts in-his opinion. On August 5, 1920, the Stew-arts sold the premises by warranty deed to Charles E. Fales, subject to Zahn’s contract, which Fales agreed to assume, and took a mortgage back, which was later foreclosed and title reinvested in the Stewarts in 1923. On July 25, 1923, the Stewarts sold to Alice M. Fales, and she, on July 24, 1924, gave warranty deed to Davis Investment Company. August 25, 1924, Zahn and wife executed a quitclaim deed to plaintiff Smith, conveying all their interests under the land contract of November 1, 1916. Plaintiff seeks specific performance of the Zahn contract, and was denied such relief - in the circuit court.
Except identification of the contract by Zahn, there was no oral testimony. Defendants deny-plaintiff’s right to specific performance because he had long been in default, there was no showing of performance on the part of Zahn or plaintiff nor of willingness, readiness, offer, or tender of performance; and while plaintiff alleged in his bill that he had offered and tendered the amount due on the contract, and by his bill then offered performance, the answers denied the allegations, and there was. no testimony to substantiate them.
While, ordinarily, the failure of a vendee to tender performance and demand a deed before filing a bill for specific performance only affects the question of costs (Morris v. Hoyt, 11 Mich. 9), the plaintiff must show some equity running to himself to move the court to grant the remedy. In Lake Erie Land Co. v. Chilinski, 197 Mich. 214, 224, Mr. Justice Fellows stated the rule governing the remedy:
“Remedy by specific performance is not a remedy of right. It rests in the sound discretion of the court. That discretion should not be exercised, unless the case is clear. It should never be exercised where the moving party does not come into court with clean hands, with equities in his favor.”
A vendee who has defaulted in his payments for four years, has permitted six more years to elapse without evidencing any intention to meet his obligation or assert rights under the contract, has offered no explanation or excuse for the default nor shown ability or readiness to perform, has raised no equities which entitle him to the discretionary aid of the court. He must at least demonstrate ability, readiness, and willingness to perform. 36 Cyc. pp. 693, 779; 25 E. C. L. p. 335; Pomeroy, Specific Performance (3d Ed.), §§ 323, 327.
Plaintiff relies wholly upon the decree of 1920, which gave Zahn the right to redeem within six months after sale. If any rights accrue to plaintiff under such decree, the remedy is in that proceeding.
Decree is affirmed, with costs.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
This is certiorari to review mandamus. Qualified signers, sufficient in number, petitioned the board of supervisors for Oakland county to adopt a resolution, in accordance with Act No. 279, Pub. Acts 1919, directing an election be held in the township and city of Royal Oak, on a day designated, to determine whether specified territory should be detached from the township and annexed to the city. Power of the board of supervisors to direct, such an election was conferred by Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1915, § 3304 et seq.), and amendments thereto. By mistake the petition made reference to a statute wholly foreign to the subject. The mistake was noticed by the board; the prosecuting attorney advised the board that the petition, in that respect, might be amended by the board; the amendment was made by the board and a special election ordered to be held on November 8, 1927, and due notice thereof was given to the township and city officials. The township board declined to hold the special election unless the expense thereof, in the sum of $1,100, was put up by petitioners. Thereupon plaintiffs herein petitioned the circuit court for • the county of Oakland for a writ of mandamus, directing the township board to hold the election. In answer to an order to show cause the township board claimed that the petition for the election was void because of the mentioned mistake, and tbe amendment thereto a nullity, and that the special election would cost $1,100 and there was no money in the township treasury to meet such expense. The circuit judge found the action by the board of supervisors legal and ordered the township board to hold the election. It was then too late for the township to comply with the necessary preliminaries to an election on November 8, 1927, and plaintiffs requested the court to set a new date. This the court felt was a matter solely within the province of the board of supervisors and declined to set another date.
Three questions are presented.
(1) Was it legal to amend or rather correct the petition?
(2) Was the township bound to hold the election at its own expense?
(3) Had the court power to set a new election day?
1. The petition needed no amendment. The mistake was patent but not with'reference to essential subject-matter and was, therefore, mere surplusage. It was not necessary in the petition to point out the statute authorizing its filing and empowering the board to act. Act No. 279, Pub. Acts 1919, relates to the State department of animal industry. Defendants direct attention to the following language in Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1915, § 3311):
* * * “and if, before final action thereon, it shall appear to said board or a majority thereof that said petition or the signing thereof does not conform to this act, or contains incorrect statements, no further proceedings pursuant to said petition shall be had.” * * *
Clearly this relates to matter of substance. Plaintiffs also direct attention to the following provision in the same act:
“After the adoption of such resolution neither the sufficiency nor legality of the petition on which it is based may be questioned in any proceeding.”
We need but say that the petition, without reference therein to any statute, was sufficient, and the amendment only served to make it look better.
2. The township board, in performance of a ministerial duty, was required to hold the election, and lack of funds to pay the expense thereof was no excuse for refusing to do so, or of imposing the condition that the expense be met by petitioners.
S. The province of the writ of mandamus is to direct. The court could do no more than direct obedience by the township to the order of the board of supervisors. It is the province of the board of supervisors not only to order an election but as well to fix the date of the holding thereof. If it happens, as here, that the election cannot be held on the day set by the board then the board, and not the court, must act anew in fixing another date. The law does not require a special election day, and, in fact, forbids a special day if a general election is to occur within 90 days, and we cannot but note that, since the special date fixed by the board, the annual April election and the general fall election in 1928 have been held, and an election upon the question of annexation could well have been directed at one or the other of such times had application been made to the board to so order.
The judgment in the circuit is affirmed, with costs against plaintiffs.
North, C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Wiest, J.
This is a suit against the surety on the official bond of Frank Cleveland, sheriff of Dickinson county, in 1926, to recover damages for assault and battery and false imprisonment. The condition of the bond omitted some statutory language, but contained the essential requirement that the sheriff should “well and faithfully perform all and singular the duties incumbent upon him * * * as said sheriff.” While the terms of the official bond are prescribed by 1 Comp. Laws 1915, § 2442, tbe statute is -directory, and substantial compliance therewith binds the surety. The bond was the statutory one. Mechem, Public Officers, § 268.
May 20, 1926, plaintiff, at the city of Iron Mountain, was convalescing from an operation for a double hernia, and, having been advised by his physician to take moderate exercise, went out of his boarding house to the street steps, and, suffering pain, sat down. Just then the sheriff came along and said, “I am sheriff of Iron Mountain, Dickinson county, and I clean up the place,” grabbed hold of plaintiff, jerked him from the steps, pounded him on the head, struck him in the ribs, led him to an automobile a short distance away, pushed him in, took him to the county jail, there locked him up, refused him leave to call his physician or attorney, kept him in jail until afternoon of the next day, and then took him before a justice of the peace, laid no charge against him, and plaintiff was released. A few days later the sheriff left for parts unknown. The sheriff had no warrant, and plaintiff had committed no offense.' In the circuit court a jury awarded plaintiff $1,000 damages, and the circuit judge, notwithstanding the verdict, entered judgment for defendant, holding the surety not liable for the “unprovoked, unwarranted, unofficial, personal, acts of the sheriff, committed, if we may apply normal assumptions to his conduct, for there is no evidence on the subject, to satisfy a personal grudge.” Plaintiff negatived ill-will.
The court was in error in holding the acts complained of were not committed, in the eye of the law, by virtue of or under color of office. The holding finds support in some jurisdictions, is sharply criticized and wholly rejected in others, and is opposed to the weight of modern authority. The opin ion in Norris v. Mersereau, 74 Mich. 687, committed this court to the modern rule of liability of the surety, and we affirmed the rule in Bostatter v. Hinchman, 243 Mich. 589, decided since the case at bar was heard in the circuit. The rule in this jurisdiction holds the surety liable to all persons unlawfully injured by nonfeasance, misfeasance, or malfeasance perpetrated by the sheriff, virtute officii or colore officii. Norris v. Mersereau, supra; Bostatter v. Hinchman, supra. This rule is in accord with the weight of authority. Lee v. Charmley, 20 N. D. 570 (129 N. W. 448, 33 L. R. A. [N. S.] 275); American Guaranty Co. v. McNiece, 111 Ohio St. 532 (146 N. E. 77, 39 A. L. R. 1289); Geros v. Harries, 65 Utah, 227 (236 Pac. 220, 39 A. L. R. 1297); 24 R. C. L. p. 965, § 59. See, also, Clancy v. Kenworthy, 74 Iowa, 740 (35 N. W. 427, 7 Am. St. Rep. 508), a case quite on all fours.
' The old-time fiction between acts committed colore officii and virtute officii should no longer be regarded. See Geros v. Harries, supra.
The sheriff unlawfully assaulted and beat plaintiff, wrongfully arrested and imprisoned him in the jail, of which he was the keeper by virtue of his office, and the surety on his bond is 'liable.
As ground for not holding the surety, it is stated in the brief for defendant, that the acts of Cleveland were mere bold, groundless claims of authority, citing State v. Mankin, 68 W. Va. 772 (70 S. E. 764). We think that good ground for holding the surety liable.
The judgment is set aside, and the case remanded to the circuit court with direction to enter judgment, for plaintiff on the verdict. Plaintiff will recover costs.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
On February 1, 1927, plaintiffs entered into a written contract with the defendants to sell and convey to them certain real estate in the city of Grand Rapids, then occupied by them in the conduct of a wholesale meat market, for the sum of $35,000, and all the personalty used by them in connection with said business for the sum of $10,000, to be paid for by defendants as follows:
1. By the assignment to plaintiffs of a real estate and chattel mortgage on 1,920 acres of land in Lake county, spoken of as the Voss ranch, and the chattels and personal property thereon, in the sum of $13,968.45, held by the Hendershots, but subject to a first mortgage thereon in the sum of $15,000, on which $750 had been theretofore paid.
2. By conveying to plaintiffs a property in South Bend, Indiana, known as the Bungalow inn, at the price of $27,500, subject to mortgages thereon in the sum of $8,227, with accrued interest to date.
3. By conveying to plaintiffs certain lots in Grand Rapids, completing a house then in course of erection on one lot and erecting a residence on another to sell for $6,500 or more.
Within a few days thereafter the deal was consummated by the execution and delivery of the conveyances provided for. Plaintiffs then took possession of the South Bend property and thereafter collected rent from the tenant therein, and defendants took possession of the meat market and conducted business therein. As security for the erection of the. residence, the defendants George Hendershot and Merle R. Voss gave plaintiffs a promissory note for $6,000, payable within 6 months. The plaintiffs had looked over the ranch property during the preceding summer, and had visited the South Bend property and the lots conveyed before the contract was executed.
In their bill of complaint, filed in August, 1927, they aver that the conveyance made by them was secured by fraud, and pray that it be set aside and defendants required to reconvey the same to them relieved of a mortgage defendants have placed thereon, and that they be permitted to retain the property conveyed to them “to such an extent as will compensate your petitioners for any property they have lost by reason of fraud practiced upon them, or upon such other terms as to the court shall seem just.”
After a hearing, in which the proofs were taken in open court, the trial court dismissed the bill of complaint. He, however, found that an incumbrance of $200 on the South Bend property had been inadvertently omitted from consideration when the conveyances were executed, and gave plaintiffs a personal decree against the defendants for that amount. Plaintiffs appeal.
The material allegations of fraud will now be considered.
1. It is insisted that as an inducement to their purchase of the South Bend property the defendants “stated positively that they had a buyer for Bungalow inn, who would purchase it for $27,500.” Both of the male plaintiffs testified that Hendershot said he could sell this property for $27,500 in six months’ time. One of them said:
“Why, he said he could get us $27,500 and possibly more. He said he had a buyer. He said this Lukkas’ wife, that he was to marry, was going to get $20,000 life insurance, and they was going to buy it.”
The other said:
“Well, he said that Lukkas, if I understand that right, or the lady, had $20,000 life insurance, and she would buy it.”
These representations are said to have been made while the parties were driving to South Bend to look over the property. They there met Lukkas, who was then occupying it. No inquiry was made by the plaintiffs of his intention or ability to purchase it. Hendershot denied making these statements. He testified that one of the plaintiffs talked to Lukkas when they were there, and that Lukkas told him that $27,500 was a fair price for it, and also told him ‘ ‘ about what money his wife had, and, if they were successful the first year, he would buy the inn.” But, assuming them to have been made, we do not think actionable fraud can be predicated on them. They were but boastful utterances of Hendershot, intended no doubt to satisfy plaintiffs that the property was worth $27,500 and that they would receive that amount for it. As stated by plaintiffs, his expectancy of selling was based on the marriage of Lukkas and the willingness of his wife to put her insurance money into the property. Plaintiffs ’ counsel rely on Kefuss v. Whitley, 220 Mich. 67. The holding in that case was by a divided court, and may not be extended to apply to such a representation as is here relied upon. It may not be improper to add that, while plaintiffs had proof of apparently competent witnesses that this property was worth but from $12,000 to $15,000, defendants’ witnesses, no less competent, testified that it was worth from $30,000 to $35,000.
2. One of the plaintiffs testified that Hendershot stated that the second real estate mortgage — on Yoss ranch — was “as good as money in the bank, just as good as gold. ’ ’ It cannot be said that sound business men, as plaintiffs were, relied on such a statement as to the value of this mortgage. The defendants insist that it is worth all it calls for, and, if the witnesses called by them who testified to the value of the ranch property are to be believed, it was a sound investment for plaintiffs to make.
3. The promises of the defendants to erect a dwelling on one of the vacant lots, and to complete the one in course of erection* were not such representations as, if unfulfilled, will render the contract void. These and the statements as to the amounts due on the mortgage were matters in which the plaintiffs might have fully protected themselves in the contract. The trial court, who saw and heard the witnesses, found that the parties—
“were and still aré on an equal basis as to business experience, intelligence and a mutual desire on their part at the time of this transaction to dispose of their respective properties. They were dealing with each other at arm’s length. There were no fiduciary relations existing between them. It appears that the transaction was not consummated in haste but on due deliberation by both parties, for both parties were careful to look over the property proposed by the other to be exchanged; after such careful investigation both parties seem to be satisfied to complete the transaction.”
This fairly expresses the views of this court after a consideration of the evidence submitted.
‘ ‘ This was a trading transaction and both parties seem to have boosted somewhat the values of their respective properties. ” Hull v. Hostettler, 224 Mich. 365, 369.
But, as was said in that case, we have discovered no testimony that would justify a conclusion that the plaintiffs were induced to make the trade by false representations of the defendants.
The decree is affirmed, with costs to appellees.
North, C. J., and Fead, Fellows, Wiest, McDonald, and Potter, JJ., concurred. Clark, J., did not sit. | [
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•Wiest, J.
An information, filed in the Gratiot circuit, charged Charles Ingersoll and Mildred Snellenberger with the crime of negligent homicide. Mildred was tried and acquitted. "When.defendant Ingersoll, herein styled defendant, was brought to trial, he moved to quash the information, on the grounds that he had had no separate examination before a magistrate and the information was bad because it chaiged two persons with the commission of the crime, and, under the statute defining negligent homicide, only one person can commit the offense. The court denied the motion, and a severance was had. The criminal code (Act No. 175, Pub. Acts 1927, chap. 7, § 75), sustains the ruling upon the pleading. The other point will be taken up later.
Defendant waived a jury, and, upon trial before ■ the court, was convicted, and prosecutes review by writ of error. At tbe trial defendant requested findings of fact, and findings were made, amendments thereto proposed and denied, and exceptions taken. No such practice prevails in criminal cases.
We are asked to extend the provisions of Circuit Court Rnle No. 45 to the trial of criminal cases before the court without a jury, it being contended that unless this be done a defendant so tried will be deprived of adequate method of review. The Constitution, art. 2, § 19, accords to every accused the right of trial by jury, and the criminal code recognizes such right, but leaves it to an accused to have such trial or waive the right and be tried before the court. Section 3, chap. 3, Act. No. 175, Pub. Acts 1927, permits an accused to elect to be tried before the court without a jury, and requires the election to be in writing, signed by the defendant and filed and made a part of the record of his trial. In the writing the accused must state: “I fully understand that under the laws of this State I have a constitutional right to a trial by jury. ’ ’ The record shows that defendant waived the right of trial by jury in accordance with the quoted provision of the code. It may be that waiver of trial by jury bars review as broad as upon trial by jury, but this affords no reason for supplementing the code procedure by rules of civil procedure.
The information did not refer to the statute of negligent homicide by its title, and defendant contends that section 57, chap. 7, Act No. 175, Pub. Acts 1927, known as the criminal code, makes reference mandatory. That act provides:
“In pleading a statute or a right derived therefrom it is sufficient to refer to the statute by its title, or in any other manner which identifies the statute and the court must thereupon take judicial notice thereof. ’ ’
It was not necessary to refer to any statute in the information in order to have the court take judicial notice of the law of the State. If the information charged an offense denounced by statute the court, of course, would take judicial notice of applicable law. Whatever the purpose of the quoted section of the criminal code, it does not require statutes to be specially pleaded in informations, except, possibly, in a negative sense. The information charged a single crime, and evidence that Mildred had no driver’s license did not render the charge bad for duplicity. It is elementary that an offense may be set forth in a single count of an information, even though it includes a lesser offense committed in the perpetration of the one charged.
Five miles south of the village of Ithaca in Gratiot county, the north and south public highway, known as trunk line U. S. 27, crosses a creek, over a planked bridge 27 feet long and 16 feet wide in the clear. There are hills north and south from the bridge.. Sunday morning, July 31, 1927, a minister, on his way to camp meeting, with members of his family and friends, in a Ford touring car, came down the bill to the north of the bridge. At the same time defendant and Mildred Snellenberger, with two friends in a Ford sedan, driven by Mildred, came down the hill to the south of the bridge. As the minister approached the bridge he slowed his car and turned to the west edge of the road. As Mildred approached the bridge she shut off the supply of gas, applied the foot brake to her car, evidently thinking she could not make the bridge ahead of the other car. Defendant was seated by her side, with his left arm over the back of the driver’s seat, and stated that they could get across, reached over and applied the gas, the ear shot forward, Mildred was frightened by the sluing of the car in loose gravel, lost control thereof, defendant took hold of the steering wheel, prevented the car from striking the west rail of the bridge, by turning it quickly, but grazed the east rail and then went diagonally across the roadway to a point about 50 feet from the bridge to where the minister’s car was close to the ditch and struck that car, tipped it over into the ditch and killed Eva Lehner, who was riding therein. Within the outline stated will now be mentioned specific acts showing defendant’s negligence.
The evening before the accident defendant drove the Ford sedan to the city of St. Louis and from there, near midnight, accompanied by a young man and two young girls, drove to the city of Alma. At Alma, Mildred Snellenberger, one of the girls, wanted to drive the car, and defendant let her do so, after being informed that she had no driver’s license and had never driven a Ford car or any other, except her father’s Dort touring car on one occasion. Defendant placed the girl in control of the car, and occupied the seat beside her and she drove all night, visiting several towns and traveling in all about 125 miles. She was still driving as the car approached the scene of the accident and until defendant undertook control.
The statute under which the charge was laid provides :
“Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of the crime of negligent homicide. ’ ’ * * * Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [2]).
Many errors are assigned, and we will mention such as merit discussion.
Two persons may be charged as principals in negligent homicide. Story v. United States, 57 App. D. C. 3 (16 Fed. [2d] 342, 53 A. L. R. 246). Negligent homicide is not a crime necessarily limited in commission to one person. In the Story Case writ of certiorari was denied by the Supreme Court, 274 U. S. 739 (47 Sup. Ct. 576). As said in the Story Case:
“If the owner of a dangerous instrumentality like an automobile knowingly puts that instrumentality in the immediate control of a careless and reckless driver, sits by his side, and permits him without protest so recldessly and negligently to operate the car as to cause the death of another, he is as much responsible as the man at the wheel.”
But in the case at bar it is said that the girl drove the car all night without difficulty and thereby demonstrated her ability to drive, and, this being known to defendant, he was not guilty of negligence in continuing to let her drive. The recklessness in letting her drive was demonstrated as soon as the girl was confronted with a situation not out of the ordinary. The girl did not know what to do, and lost control of the car, and it was such loss of control by her and defendant’s attempt to assume control aiid his inability, at that point, to control that caused the collision and death. It would be strange, indeed, to hold the girl not responsible because, in her inexperience, she lost control of the car, and defendant also not responsible because he let her drive, and, when her want of experience brought a situation inviting disaster, he tried to avert a collision and could not do so. Defendant’s automobile did not come down the highway and crash into the other car without human agency. It was a reckless disregard of consequences for defendant to permit the inexperienced girl to drive at all and especially all night, and the very event that happened was one reasonably to be expected, or at least one to have been guarded against, by not affording means for its accomplishment. No court in a civil action would think of holding defendant not guilty of negligence.
Under the statute of negligent homicide, if defendant’s negligence caused the death of a human being then he is guilty. Defendant’s endeavors were no more than efforts to avert an accident made imminent by his own negligence. He killed Eva Lehner in trying to control the car when the incompetent driver he had intrusted with its operation lost control, and he is not to be judged only by what he then did, but upon all the facts and circumstances leading up to and ending in the killing. It was negligence on defendant’s part to permit an inexperienced girl to drive the car as well as unlawful to let her do so without a driver’s license, and also negligence, under such circumstances, to assume operation of the speed of the car by accelerating its motive power. At the time of the accident defendant held the steering wheel and was operating the car. The fact that the loose gravel, the inexperience of the girl and his act in accelerating the speed occasioned loss of control of the car by the girl, and defendant, in the emergency, took control and attempted operation to avoid the accident, cannot be held to excuse him from being held responsible for negligent homicide.
What we have said renders it unnecessary to discuss other assignments of error, for none call for reversal.
The conviction is affirmed.
North, C. J., and Fead, Fellows, McDonald, and Sharpe, JJ., concurred. Clark, J., concurred in the result. Potter,. J., did not sit. | [
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] |
Fead, C. J.
On February 6,1918, Joseph Hewelt, widower, father of the parties to this suit, executed to his eldest son, defendant John Hewelt and to the latter’s wife, by the entireties, a deed to a lot in the city of Detroit, subject to a life lease back to the grantor. At the time of the conveyance, John was the only married child of Joseph Hewelt. Joseph, taken sick, had gone to live with John a short time before. Joseph died March 13, 1918, leaving 10 children, 4 of whom were minors, ranging in age from 8 to 16 years. After the father’s death, defendants cared for the 3 minor children in a church boarding school, paying their expenses, although some of the other brothers made casual contributions of clothes.
This suit was brought to impress a constructive trust upon the premises so deeded to defendants by J oseph Hewelt, on the ground of fraud. There was no testimony of the circumstances under which the deed was executed, although it appeared that one of the subscribing witnesses was available. Plaintiffs-’ showing consisted of oral admissions made by defendants after the death of Joseph, together with a letter written by John Hewelt to his sister about a year after the father’s death. The evidence of oral admissions was to the effect that defendants had taken the property with the understanding that, when J oseph died, defendants would sell the lot and divide the proceeds equally among the children; or, as otherwise stated, that defendants would care for the three youngest children until they became 16 years of age, and would then make distribution of the balance. The letter indicated a purpose to share with the other children the proceeds of the property on sale. It was not claimed that the letter was a sufficient declaration of trust to satisfy the statute of frauds, nor could it have that effect. Innis v. Michigan Trust Co., 238 Mich. 282.
Constructive trusts do not arise by agreement or from intention, but by operation of law; and fraud, active or constructive, is their essential element. 39 Cyc. p. 169.
The breach of a promise by the grantee of real estate to dispose of it in accordance with an oral agreement with the grantor does not, standing alone, constitute fraud. Boston Piano & Music Co. v. Pontiac Clothing Co., 199 Mich. 141. To raise a constructive trust, an oral promise. to dispose of land as directed by the grantor must have been an inducing cause of the conveyance and relied upon by the grantor. Willis v. Robertson, 121 Iowa, 380 (96 N. W. 900), cited with approval in Longe v. Kinney, 171 Mich. 312; Stahl v. Stahl, 214 Ill. 131 (73 N. E. 319, 68 L. R. A. 617, 2 Ann. Cas. 774, 105 Am. St. Rep. 101); Ahrens v. Jones, 169 N. Y. 555 (62 N. E. 666, 88 Am. St. Rep. 620).
The most that can be said for the showing of the plaintiffs is that defendants orally agreed to sell the property and make division of the proceeds. It did not indicate whether such promise was made before or after the execution and delivery of the conveyance. Because of the lack of evidence that the defendants’ promise was an inducing cause of the conveyance, it must be held that fraud was not proved. The case is ruled by Funk v. Engel, 235 Mich. 195.
The decree of the circuit court, dismissing the bill, is affirmed with costs to defendants.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
Plaintiff holds drain orders, issued by the drain commissioner for Bay county, in the matter of constructing Pinconning and Indian Town drains. April 25, 1927, the drain fund being deficient, plaintiff demanded payment out of moneys in the general fund in the' county treasury, basing right thereto under Act No. 316, Pub. Acts 1923, chap. 9, § 4, as amended by-Act No. 365, Public 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 county clerk refused to draw orders on the treasury, and the treasurer refused to make payment out of the general fund of the county. In the circuit court plaintiff was refused a peremptory writ of mandamus directing the clerk to draw orders and the treasurer to make payment. Plaintiff reviews by certiorari,.claiming right to be paid out of any money in the general fund. Such contention ignores the condition that money must not only be in the treasury, but as well be available for payment of drain orders.
In response to an order to show cause in the circuit, the clerk and treasurer set up the fact that, on the day plaintiff made demand, there was but $35,827.63 in the general fund, and that sum was $54,770.60 short of the amount necessary to meet the current county expenses for the year 1927. The fund then in the treasury was not sufficient to meet the salaries of county officers for the balance of the year 1927. This showing of deficit was unquestioned, and the circuit judge held that the money in the general fund, being insufficient to meet current expenses of the county for the year, was not available for payment of the drain orders. If the circuit judge was right in point of law in so deciding we need not consider other questions urged in support of his denial of the writ of mandamus.
The statute places a limitation upon the right to have payment, contemplates there may be moneys in the treasury not to be so used, for it confines payment out of funds usable for such purpose. The term “available” is employed in the statute in its sense of usable. The statute does not grant plaintiff right of recourse to any and all moneys in the treasury, but limits resort to such only as are available for the payment of drain orders. 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. If moneys in the county treasury are insufficient in amount to meet ordinary current expenses then there is no money available for the payment of drain orders. It was not intended that the county borrow money to pay drain orders; neither was it intended that money on hand to meet ordinary current county expenses be used to pay drain orders and the county be left to borrow money to meet the deficit.
The drain orders here' involved are not obligations of the county to be met by tax levy, neither may moneys in the treasury, raised by tax for ordinary county expenses, be used to pay drain orders to the depletion of county funds below need for ordi - nary current 'county expenses. The condition that moneys in the treasury be available was fixed advisedly and must be accorded its protective purpose. The term “available” is, employed in a restrictive sense and opens the fund for the purpose of drain orders only in case the moneys on hand are capable of use for such purpose, and this requires consideration of the nature and extent of the fund and present and prospective demands upon the same for ordinary current county expenses.
The record discloses that the moneys in the fund are not capable of being used to accomplish the pur pose sought by plaintiff. The statute states and intends that drain orders be paid out of any moneys in the general fund of the county treasury that may be available, and that means out of moneys capable of use for such purpose, and does not mean payment out of any moneys in the treasury whatsoever, regardless of ordinary current county needs and expenses.
The ruling in the circuit court is affirmed, with costs against plaintiff.
Fead, Fellows, Clark, and Potter, JJ., concurred with Wiest, J. | [
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] |
Fellows, J.
Greenlawn subdivision, through which run Oollingwood and Lawrence avenues, is a high-class residential district. It is all built up with fine residences. The language of the restrictions in conveyances of lots does not inhibit the erection of apartment houses. Defendant corporation erected without objection or protest an apartment house on lots 68, 69, and 70 at the corner of Collingwood avenue and Third 'avenue. Upon learning that portions of the ground floor on the corner and fronting on Third avenue were being used for business purposes, i. e., grocery store and butcher shop, public restaurant and drug store, plaintiffs, who reside on Collingwood and in the immediate vicinity, filed this bill. The locus in quo is a block away from lot 86 of the subdivision, also located on Collingwood avenue, and which was the subject-matter of the litigation which reached this court in Sanborn v. McLean, 233 Mich. 227. The trial judge held that the instant case was controlled by that case, and enjoined the maintenance of the drug store and the grocery and butcher shop, and restrained the operation of a dining room for others than tenants of the building. Defendants appeal, but concede that upon the main question the Sanborn Case is controlling unless upon a reconsideration we overrule it. Counsel say in their brief:
“On the question of restrictions, the facts of Sanborn v. McLean, 233 Mich. 227, are unquestionably identical with the facts in the instant caseras shown in the record but not as disclosed in the opinion. For this court to uphold our contention is undoubtedly to reverse its finding in Sanborn v. McLean. It is only our implicit faith in the soundness of our doctrine that prompts us to attempt so arduous a task.”
The earnestness of counsel has prompted us to again consider the question before us in the Sanborn Case. As a result of such reconsideration, we are strengthened rather than weakened in our belief that the correct rule was there announced and applied. It is doubtless true that we went further in that case than we had been called upon to go in preceding cases. It was there recognized that our earlier cases were not on all fours with the one in hand, but it was pointed out that the underlying principles laid down in earlier decisions required the holding there indulged in. If a subdivider could sell with strict restrictions all lots in his subdivisions except the corner ones, which he retained until after a fine residential district was built up, and could then dispose of such corner lots freed from any reciprocal easements and thus permit a place of business on every corner, there would be but little value to building restrictions, and their enforcement would depend on the integrity or the avarice of the sub-divider. We have no disposition to change the rule announced in the Sanborn Case, and, after careful consideration given to it, reaffirm it.
As usual in this class of cases, it is urged that plaintiffs have lost their rights by laches. It is insisted that the filing of the application for a permit with the department of buildings of the city was constructive notice that the ground floor of the apartment-house was to be turned over to business. It is doubtful if the filing of such an application is notice of its contents to the inhabitants of the subdivision. But in the instant case the plans accompanying the application did not give notice that the ground floor was to be turned over to business. They did show a space for the “lounge,” which was used eventually for the grocery store and butcher shop, and a space for a “coffee shoppe,” which was eventually used for the drug store. There was also space for dining rooms. Had plaintiffs fully examined the plans filed to obtain the permit they would have had no notice that the premises or any part of them were to be turned over to stores or to be used for general business purposes. There is no constructive notice in the case. - ■
During construction there was a board fence around the premises, and the public was kept out. Inquiries of those in charge elicited only the statement that the building was to be a high-class apartment house. Such a building was permitted in the subdivision. The drug store and the grocery and butcher shop were opened after the middle of June. Judge Tuttle, one of the plaintiffs, had been in Bay City holding court during most of June, returning to his home, which was diagonally across from the apartment house, the evening of July 1st. The next morning he found at his door an advertisement of the opening of the drug store. He went to the apartment building, but got scant recognition from the manager or those in either of the stores. He consulted with other residents, and attorneys were hired that day, and a few days later, and as soon as the bill could be prepared, this suit was instituted. It is insisted that plaintiffs should have investigated the premises, that they had notice by advertisements appearing in the newspapers, and could have found out sooner. But people having homes in purely resi dential districts are not bound to prowl around building operations or apartment houses or patrol the streets to daily assure themselves that the building restrictions of the subdivision are being observed. If they act with reasonable promptness after they lcnow or should know of such violations, they will not be turned from a court of equity on the ground of laches. There was no laches either as matter of law or as matter of fact.
The decree will be affirmed, with costs.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
Defendant and two others were charged in an information filed in the circuit court for Wayne county with robbery armed, with intent to kill or maim if resisted. The defendants were represented by counsel and counsel of their own choice, so far as this record discloses. On May 1, 1928, a jury had been impaneled, but no testimony had been taken, when all the defendants asked leave to withdraw their pleas of not guilty and plead guilty of assault with intent to rob, being armed with a dangerous weapon, etc. The trial judge conducted an examination of defendants to determine whether their pleas were voluntarily entered; that of defendant Goldman appears in this record. It was complete, full, and searching, and leaves no doubt on this record that defendant Goldman’s plea was voluntarily made; it affirmatively and conclusively established, if believed, that no inducements had been held out to him by anyone. On May 19th, defendant Goldman was sentenced to the Ionia reformatory for a term of 15 to 25 years.
On May 22d, defendant Goldman, through his present counsel, filed a motion to set aside his plea of guilty and the sentence imposed and to grant him a new trial. Accompanying the motion was his affidavit that he was advised by his former attorney that if he was found guilty of the crime charged in the information his sentence would be greater than for an assault with intent to commit the crime, and that his attorney advised him “that deponent’s sentence would probably not exceed five years. ’ ’ He also says in his affidavit that he heard the assistant prosecuting attorney say to his attorney that the sentence would probably be 5 to 15 years, or possibly 7% to 15 years. This was denied m toto in an affidavit of the assistant filed in the case.
The motion for a new trial came on to be heard June 16th, at which time defendant’s counsel sought to urge as a further ground that defendant Goldman was advised by his former attorney “that the penalty was 15 years in prison,” and he offered to call the former attorney, - who had declined to make an affidavit, and examine him in open court. The trial court was of opinion that under section 2, chap. 10, Act No. 175, Pub. Acts 1927 (criminal code), and Nichols v. Houghton Circuit Judge, 185 Mich. 654 (Ann. Cas. 1917 D, 100), it was not permissible to admit such new ground after the expiration of the time fixed for moving for a new trial. This ruling is assailed in the first assignment of error. Quite likely the court was right in so holding, but we need not so decide. The most defendant can claim for the ruling is that the court declined to permit him to amend the grounds of his motion. Such an amendment was permissible only in the discretion of the trial judge. The defendant in his affidavit had sworn to a different claim, and there was little to move the discretion of the court. But beyond all this lies the fact that a careful examination of the authorities is convincing that under the law the result would be the same whether defendant was so advised by his attorney or not.
Upon the argument in this court, counsel for the defendant most earnestly contended that it is patent from the record, and that we should conclude that all actively engaged in the case, prosecutor, trial judge, and defendants’ then counsel, labored under a misapprehension that sections 15206 and 15207, 3 Comp. Laws 1915, were still in force, and that all were ignorant of the fact that both sections had been amended by Act No. 374, Pub. Acts 1927, which, among other things, increased the penalty for the assault. Unless forced to by the state of the record, we should not reach such a conclusion. No presumption to that effect arises; all presumptions are to the contrary. If such was the view of any one connected with the case, it was not justified by the record. The practice of the prosecutor’s office in Wayne is to indorse on the information the name of the assistant drafting it, together with the statute claimed to have been violated. This information bore this indorsement:
“Drafted by ‘Walling.’
“Statute Act No. 374, P. A. 1927.
“McD”
It is difficult to perceive how everyone in the case could, under these circumstances, be wanting in knowledge, or notice, at least, that Act No. 374 had been enacted, and that it amended the former act.
This brings us to the meritorious question of whether the trial judge was in error in refusing leave to defendant to withdraw his plea of guilty after sentence. In some States by statute defendants may withdraw their plea of guilty at any time before sentence, and possibly this court is committed to that doctrine. People v. Utter, 209 Mich. 214, 224. That case is relied upon by defendant here, but a reading of the proceedings in the court below, quoted somewhat at length in the opinion, shows that although defendant had formally entered a plea of guilty, from first to last he insisted that he was not guilty and demanded a trial by jury. People v. Merhige, 212 Mich. 601, is also relied upon, but that case was reversed on the ground that yfhat occurred in the court below did not amount to a plea of guilty (p. 610). People v. Scofield, 142 Mich. 221, was of like purport. The record before us is much more like People v. Williams, 225 Mich. 133, and People v. Kobrzycki, 242 Mich. 44, than any other Michigan cases that, have been called to our attention.
Courts quite generally agree'that, in the absence of a controlling statute, the granting of leave to withdrawn plea in a criminal case rests in the sound discretion of the trial judge, .subject to review only for an abuse of such discretion. See People v. Pisoni, 233 Mich. 462; Greene v. State, 88 Ark. 290 (114 S. W. 477); State v. Stevenson, 67 W. Va. 553 (68 S. E. 286); State v. Cimini, 53 Wash. 268 (101 Pac. 891); State v. Olson, 115 Minn. 153 (131 N. W. 1084); State v. George, 134 La. 861 (64 South. 800); Commonwealth v. Tucker, 189 Mass. 457 (76 N. E. 127, 7 L. R. A. [N. S.] 1056); Reed v. Commonwealth, 98 Va. 817 (36 S. E. 399); Pope v. State, 56 Fla. 81 (47 South. 487, 16 Ann. Cas. 972); Mounts v. Commonwealth, 89 Ky. 274 (12 S. W. 311); State v. Garrett, 78 Kan. 882 (98 Pac. 219). In the last cited ease, it was said:
“The voluntary plea of guilty solemnly entered by the defendant while he was duly attended by his counsel was the highest evidence of guilt, and the court did well to weigh with caution the defendant’s affidavit; filed after the jury had been discharged for the term, stating that he had looked further into the evidence for and against him and had found that it ought to be submitted to a jury, and that he was innocent. Yery clearly the district court did not abuse its discretion in refusing to allow the plea of guilty to be withdrawn. ’ ’
The clearest statement of the rule we have been able to find is that of the supreme court of California in People v. Miller, 114 Cal. 10 (45 Pac. 986), where it was said:
“Appellant’s contention is that the court abused its discretion in not allowing him to withdraw his plea, interpose a plea of not guilty for the second time, and go before a jury for trial. Before judgment, the court may, at any time, permit this to be done (Pen. Code, § 1018), and the discretion thus vested is one to be liberally exercised. The law seeks no unfair advantage over a defendant, but is watchful to see that the proceedings under which his life or liberty is at stake shall be fairly and impartially conducted. It holds in contemplation his natural distress, and is considerate in viewing the motives which may influence him to take one or another course. Therefore, it will permit a plea of guilty to be withdrawn if it fairly appears that defendant was in ignorance of his rights and of the consequences of his act, or was unduly and improperly influenced either by hope or fear in the making of it. But the mere fact that a defendant, knowing his rights and the consequences of his act, hoped or believed, or was led by his counsel to hope or believe, that he would receive a shorter sentence or a milder punishment by pleading guilty than that which would fall to his lot after trial and conviction by jury, presents no ground for the exercise of this liberal discretion.”
See, also, Beatty v. Roberts, 125 Iowa, 619 (101 N. W. 462); State v. Wilmot, 95 Wash. 326 (163 Pac. 742); Mastronada v. State, 60 Miss. 86.
In the instant case there was no abuse of discretion, and the case must be affirmed.
Defendant was admitted to bail pending the hearing in this court, conditioned, among other things, that he would comply with the orders of this court. An order will, therefore, be here entered that defendant shall surrender himself to the warden of the Ionia reformatory forthwith. This is substantially the practice adopted in People v. Merhige, supra, where the charge was the same as here, and where, as here, the defendant had been admitted to bail.
Fead, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. North, C. J., and Potter, J., did not sit. | [
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] |
Shaepe, J.
Defendant, in response to a “community drive” in the city of Menominee, signed a document, dated December 5, 1924, wherein he agreed to subscribe for the purchase of 10 shares of the capital stock -of the par value of $100 each in a corporation to be organised under the laws of this State, the object of which was stated therein to be—
“to buy and hold a parcel of real estate in the city of Menominee and erect thereon and own a building to be occupied or leased for a department store, moving picture theater, office and other business and recreational purposes.”
Certain persons were designated therein to act as his attorneys in fact to sign and to acknowledge the articles of association of the company to be formed. These articles were executed on March 13, 1925. The purposes of the corporation were therein stated to be:
“To purchase, hold, sell, improve and lease real estate, and mortgage and incumber the same, and to erect, manage, care for, and maintain, extend and alter buildings thereon.”
Many of the citizens acted as solicitors, and there were more than 1,500 subscribers. The subscription of the defendant was secured by John J. O’Hara. O’Hara did not have a salesman’s license, nor was any dealer’s license secured by the incorporators. This action is brought by the corporation to compel payment by defendant of the amount due on his subscription agreement. The plaintiff had judgment upon a directed verdict, and the defendant seeks review on case-made.
Defendant’s counsel contend that he is not liable because (1) of the variation between the purposes as expressed in the subscription agreement and the articles of incorporation, and because (2) the agreement was procured in violation of law.
1. The wording of the agreement and the articles has been already stated. The incorporation was, of course, a condition precedent to defendant’s liability.
“A material change in the character of the enterprise, the capital stock, or purpose of the proposed company releases those who do not assent thereto.” 1 Cook on Corporations (8th Ed.), § 62.
The corporation when organized “must, as to its purposes, powers, and otherwise, be the same corporation as that contemplated by the subscription agreement.” 14 C. J. p. 518. But, as is said in 7 B. C. L. p. 258:
“Subscribers in many cases have been astute to discover grounds upon which to defeat their contracts, and numerous and ingenious are the defenses that have been interposed in actions on subscriptions. The tendency of the courts very properly has been to discourage these efforts of subscribers to repudiate their acts.’'’
The trial court held that “the organization was in substantial accord with the subscription,” and with this conclusion we agree. While the purpose as expressed in the articles is somewhat broader than that stated in the agreement, the organization was in effect the one contemplated therein. The main purpose — that of erecting a community building— was not departed from.
The subscription agreement was signed on December 5, 1924. The articles of association were executed on March 13, 1925. The first meeting of the stockholders was regularly called for May 21st. Defendant did not personally attend the meeting, though urged to do so. He gave his proxy to John J. 0 ’Hara, who was present and voted his 10 shares of stock. Those present selected the site and authorized the directors then elected to proceed with the work. Notices requesting payment were sent to the several subscribers. The record does not disclose that defendant, although chargeable with notice of what had been done, raised any objection to the proceedings had or taken. His first denial of liability would seem to have been when this action was begun. There was no repudiation of the agreement by him as there was in Plank’s Tavern Co. v. Burkhard, 87 Mich. 182. He should not now be heard to say that he is released from liability by the action taken. International Fair Ass’n v. Walker, 83 Mich. 386.
2. It is conceded that Mr. O’Hara, who solicited and obtained defendant’s subscription, had not obtained a license as a salesman, nor were the proposed incorporators authorized to sell stock by the Michigan securities commission. It is urged that the subscription was obtained in violation of Act No. 220, Pub. Acts 1923 (the blue sky law). Section 5 of this act provides:
“And, except as hereinafter provided, the provisions of this act shall not apply to the sale of any security in any of the following transactions: * * *
“ (/) Subscriptions to capital stock necessary to qualify for incorporation made by incorporators in a proposed Michigan corporation.”
In Decke v. Baker, 201 Mich. 608, this court approved the holding of the trial court wherein it was said:
“Subscribers are not purchasers of stock within the purview of the securities statute; they are ere ators of the corporation as much as are those who execute the articles of incorporation in behalf of all.”
The solicitor who secured defendant’s subscription was not a salesman governed by the provisions of that act.
The judgment is affirmed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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North, J.
In July, 1924, the plaintiffs purchased by a land contract four vacant lots fronting on Wyoming avenue in the city of Fordson, Wayne county, Michigan. These lots, which are in the Paige Gardens subdivision, were supposed to be 100 feet in depth and so appeared on the plat filed in the register of deeds’ office. In 1926 the city paved this street, and in locating the lines incident to this work it was made evident that the lots as platted extended into the street approximately 6 feet. In June, 1927, the plaintiffs brought this suit in ejectment against the city of Fordson. Under the plea of general issue the defendant gave notice that it claimed to own ’ the land in controversy by reason of its having been condemned for street purposes in December, 1913, and that the claim of plaintiffs was barred because the highway had been used as such in its present location for upwards of 10 years. The plaintiffs assert (1) that the proceedings of December, 1913, whereby an attempt was made by the township highway commissioner of Springwells township (in which these lots were located) to establish and lay out this highway by condemnation were void because the so-called county road law (1 Comp. Laws 1915, §§ 4347-4377) had become effective prior thereto and thus the right and power of the township highway commissioner to act was terminated; and (2) that whatever rights the public may have had in the lots in question were lost by the act of the township board in approving the plat of the Paige Gardens subdivision in 1919. At the conclusion of the proofs each of the parties moved for a directed verdict. The circuit judge held that the highway was legally established by the proceedings instituted in 1913, as claimed by the defendant, and directed a verdict in its favor. The plaintiffs are reviewing by writ of error.
The conflicting claims of these parties have arisen from the fact that Wyoming avenue (formerly Snyder road) as laid out was not centered on the section line on the westerly side of section 9 of Springwells township (now the city of Fordson), this being the section on which plaintiffs’ lots are located. This section line angles at the quarter post, but the highway was laid out 66 feet in width centered on a straight line extending from the section post at the southwest corner of the section to the section post at the northwest corner thereof. Thus, instead of coinciding with the section line, the center line of the highway was located easterly thereof, and in front of plaintiffs’ lots the distance between these two lines was approximately 6 feet. This placed the easterly line of the highway at this point substantially 39 feet east of the section line. Notwithstanding the highway was so laid out in 1913, the township board in 1919 approved the plat of the Paige Gardens subdivision, which located the front line of plaintiffs’ lots 33 feet east of the section line, and thus they extended into the highway about 6 feet.
In this ejectment suit the plaintiffs have the burden of establishing their right to the land in controversy as against the defendant’s claim of highway rights therein. The record does not sustain the plaintiffs ’ contention that the adoption of the county road system by Wayne county supplanted or terminated the authority of the township highway commissioner to lay out and establish this highway. Provision is made in the so-called county road law for townships continuing to operate under the township system of constructing highways. 1 Comp. Laws 1915, § 4377. The proof here shows that Springwells township was so operating; and the presumption prevails, until the contrary is established, that the township acted according to and within the provisions of the statute. No proof was offered which indicates otherwise.
From this record it appears that this highway was originally laid out by the highway commissioner of Springwells township. From his determination of necessity and award of damages an appeal was taken to the township board, and from the determination of the board an appeal was perfected to the circuit court by William J. Gray, as trustee. The controversy involved in this appeal was adjusted, the appeal was dismissed April 10, 1916, and the road as laid out was improved and used as such continuously thereafter for upwards of 11 years before this suit was brought (June 9,1927). Section 4307, 1 Comp. Laws 1915, provides:
“All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or more, shall be deemed public highways.” * * *
The foregoing provision is conclusive of the questions raised by the plaintiffs in the lower court as to the regularity of the proceedings by which this highway was established and as to the effect of an alleged failure to make proper record of such proceedings. It is urged in appellants’ brief that this is a highway which became “such by time and use,” and therefore by the provision of the statute (1 Comp. Laws 1915, § 4307) the land belonging to such road is two rods in width on each side of the section line. This contention is not well founded, because this highway was not established by use, but instead it was laid out and established “in pursuance of existing laws.” As laid out, it includes the land now claimed by the plaintiffs, but their alleged ownership cannot be sustained because of the statute above quoted.
The right of the public to hold this land as highway was not affected by the act of the township board in placing its approval on the plat of this addition, notwithstanding some of the lots as platted extended into the highway. It is not within the province of township officers to admit away the right of the public in its highways. Campau v. City of Detroit, 104 Mich. 560. The method of vacating highways is provided by statute and they cannot be otherwise vacated except by nonuser, which is not here claimed. Ellsworth v. City of Grand Rapids, 27 Mich. 250, is a somewhat similar case, and it was there said:
“The mere making and recording of a plat upon paper, ignoring the existence of the road, was not an act calculated to interfere with or disturb the use of the way by the public.”
The fact that this highway as laid out varied slightly from the course described in the petition therefor in no way renders the proceedings invalid. Yeatter v. Myers, 241 Mich. 325.
We have considered other issues urged in the lower court, and find them without merit. Some questions are presented in appellants’ briefs which were not raised in the circuit court. Such questions cannot be based upon an assignment of error, and will not be considered in this court. The circuit judge was right in directing a verdict for the defendant.
. The judgment is affirmed, with costs to the appellee.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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McDonald, J.
The defendant seeks to review by certiorari an award of the department of labor and industry. The plaintiff claims that while in the employ of the defendant he received a compensable, accidental injury that resulted in the total loss of the sight of his right eye. At the time of the accident, he was traveling on a railroad train from Salt Lake City to Chicago. He had been sent by the defendant on a business trip which took him to the west coast and back to the home office of his employer in Detroit, Michigan. His duties' required that he go from Salt Lake City to Chicago, where he had business for the defendant with the Gimball Motor Company. He had no special hours within which to do his work, and sometimes traveled at night to save time. He received a monthly salary. While sitting on the observation platform of the train, a cinder hit him in the eye. When he reached Chicago, he received treatment and again in Detroit, but the eye continued to grow worse and finally had to be enucleated.
The defendant denies liability on the ground that the injury did not arise out of the employment. On the hearing, the commission awarded the plaintiff compensation for 100 weeks at $18 a week for the loss of an eye, and $720 for medical, surgical, and hospital services.
The following excerpts from defendant’s brief state the issue involved:
“This cause presents only one question for determination : Did the injury arise out of the employment? Defendant concedes that the injury occurred in the cours,e of the employment and that the loss of the eye was the direct result of the injury. * * *
“George Widman’s presence on the train was of course justified by his employment. He was acting in the course of his employment but by his employment he was subjected to ‘no greater hazard or different risk than that sustained by every member of the general public, ’ at least on that train. ’ ’
In the latter quotation is suggested the principal defense, which is a reliance on the general rule that an award is not authorized where the employment does not subject an employee to a greater risk than that to which the general public is exposed. But there are certain well recognized fundamentals of responsibility which very often render this general rule inapplicable. There are present such fundamentals in the instant case. Chief of these is the nature of the duties which the plaintiff was required to .perform. It was a condition of his employment that he should be on this train, which turned out to be a place of danger. The risks to which he was exposed from riding on trains from place to place as he was directed were incidental to his employjnent. He was required to ride on trains in the performance of his master’s business. This condition of the employment was the proximate cause of his injury. These undisputed facts fix the responsibility of the defendant regardless of the fact that others riding on the train were exposed to the same risks. In Cook v. Assurance Corp., 243 Mass. 572 (137 N. E. 733, 29 A. L. R. 114), in speaking of street hazards assumed by a servant in his employment, the court said:
“When these hazards thus become connected with, and incidental to the employment, and are the direct cause of the accident, such accidents arise out of, as well as in the course of the employment. And the fact that others engaged in their own affairs are more or less exposed to the same street risks does not preclude recovery by an employee who is necessarily exposed to them in performing the duties of his employment contract.”
The case of Kunze v. Detroit Shade Tree Co., 192 Mich. 435 (L. R. A. 1917A, 252), is also very much in point. In that case the record shows that the employee was required to ride on street cars as he went from .place to place to do tree surgery for his employer. While in the performance of his duties he was injured at a street intersection as he was about to take a street car. In holding that the accident arose out of his employment, the court said:
“It is true that in going from one place to another, as was his duty, he naturally was compelled to assume risks not in any way connected with the trimming, planting, and treating of shade trees. But his employment extended further than this and necessarily obliged him, in the discharge of his duties, to go from place to place, and in so doing to assume the-risks of traffic upon the streets. Where employees are compelled during the course of their employment to travel about the streets, it does not seem to us to be unreasonable to say that the danger of being-struck by street cars, automobiles, and traffic of every description should be taken account of. We think it must be said that the very nature of the occupation of the deceased itself exposed bim to the unusual risk and danger of an accident of this nature. ’ ’
The case of Favorite v. Kalamazoo State Hospital, 238 Mich. 566, is distinguishable in its facts from the one before us, but in that case the court quoted with approval the following holding of In re Harraden, 66 Ind. App. 298 (118 N. E. 142):
“Where the employment of- the injured person requires him to be at the place where his injury is received, and he is in fact at such place in pursuance of the discharge of the duties of his employment, the risk thereby encountered is held to be incident to such employment, though the injury may have resulted from conditions produced by the weather to which persons generally in that locality were exposed.”
It is not necessary to extend this opinion by the further quotation of authorities. Many cases more or less applicable are cited in the annotations to 29 A. L. R. 120, and 20 A. L. R. 319.
In view of the law and the undisputed facts, it is our opinion that the commission was right in holding that plaintiff’s injury arose out of and in the course of his employment.
The award is affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
Defendant owned some vacant lots which he desired to exchange for income-producing property. Plaintiff, a real estate broker, had a two-family flat listed with it by one Wilcox. Defendant in writing offered to turn in his lots at $5,000 and assume a mortgage for $6,000 on the flat, taking it at $11,000, possession to be given November 15, 1927. Wilcox and his wife accepted the proposition in a writing which deferred giving possession until December 1st. Plaintiff acted as a middleman, and both parties agreed in the writing to pay it a commission. The testimony of the parties is in direct conflict. There was testimony in the case that plaintiff notified defendant that Wilcox desired the 15 days ’ extension and he consented to it; there is also testimony that plaintiff learned that Wilcox was buying on a contract and so informed defendant, offered to have a deed and mortgage given to literally comply with the terms of the contract, but defendant expressed a willingness to let the title stand as it was and to go ahead with the deal. Wilcox and his wife were at all times ready to carry out the deal and tendered proper conveyances; defendant refused to close the deal with Wilcox or to pay plaintiff. A judgment for the agreed commission is here reviewed by defendant.
The argument against the judgment in the main is this: The agreement between defendant and Wilcox having to do with the sale and exchange of real estate must be in writing; it was reduced to writing; the written agreement could not be modified by parol, and parol testimony was inadmissible to establish that it was modified by the parties; such modified agreement, not having been reduced to writing, was void; plaintiff could only recover in case a valid agreement was made by Wilcox and defendant. Plaintiff, on the other hand, points out that the validity of the agreement between the vendors and vendees is not here involved; that defendant agreed in writing to pay it a commission; that it produced a purchaser, able, willing, and ready to take the property on terms satisfactory to defendant, and that it has, therefore, earned its commission ; that it was to be paid for producing a customer, not for consummating a completed sale.
In the main, the cases relied upon by defendant are cases between vendors and -vendees, some of them involving specific performance, and a few deal with commission agreements payable only on consummation of the sale. This is not such an action. The rule is well stated by Mr. Justice Clark, speaking for the court in Sotham v. Kern, 221 Mich. 5, where he said:
“If plaintiff produced within the time a customer who was ready, able, and willing to purchase on de fendant’s terms,- his commission was then earned. See McOmber v. Campion, 219 Mich. 604. It was not necessary that the deal between defendant and G-rindley be completed before plaintiff had earned his commission. Blakeslee v. Peabody, 180 Mich. 408. Plaintiff’s undertaking was not to consummate a sale (Horton v. Inmen, 145 Mich. 438), but to find a purchaser. 9 C. J. p. 595.”
See, also, Fuday v. Gill, 195 Mich. 613; Cochran v. Staman, 201 Mich. 630; Garrisi v. Kass, 201 Mich. 643; McOmber v. Campion, 219 Mich. 604; Badger v. Finlayson, 219 Mich. 660; West v. Newton, 229 Mich. 68; Greenberg v. Sakwinski, 211 Mich. 498; Casey v. Hetherington, 220 Mich. 176; Rice-Wray v. Palma, 216 Mich. 324; Brittson & Smith v. Kroll, 217 Mich. 180.
It is insisted that plaintiff may not recover because it has not complied with the provisions of Act No. 306, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 6897[24] et seq.), as amended, hence the agreement sued upon is invalid. The most that can be said of the record is that it does not affirmatively show that plaintiff has complied with the act. But if defendant desired to urge the invalidity of the contract for this reason, he should have given notice of such defense under section 2, Circuit Court Rule No. 23. This he did not do. The defense is, therefore, not available to him.
Finally, it is urged that the agreement- was to pay D. and W. Rottschafer, and that plaintiff corporation may not recover on such agreement. In the caption of the paper the corporation is named, and it is not seriously questioned that the dealing was with it. This objection is answered by the language of Chief Justice Wiest in Lutheran Church v. Guaranty Co., 222 Mich. 256. There-was.a mis nomer of the church and the construction company. In holding that such misnomer did not defeat recovery on the surety bond, he said:
“There is no occasion to halt justice in this case because of the careless manner in which the names of the plaintiff and the contractor appear to have been stated in the writings. Defendant, apparently, did not’hesitate to go on the bond of the contractor because its name was given as the Singer Chimney Company instead of the Singer Chimney & Construction Company, or because the bond was given to St. Matthews Evangelical Lutheran Congregation instead of the Evangelical Lutheran S.t. Matthews Church. Defendant then knew, perfectly well, for whom and to whom it engaged its suretyship and it is too late now to insist there is a want of identity arising out of variance in names. The identity of plaintiff and that of defendant’s principal in the bond could not possibly have been in doubt at any time by any of the parties, and such identity is not in doubt now. It is an old rule, and a sensible one; that the misnomer of a person or corporation in a written instrument will not defeat a recovery thereon, if the identity sufficiently appears from the name employed in the writing or is satisfactorily established by proof.”
The judgment will be affirmed.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.» | [
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Sharpe, J.
A plat of the Pomeroy-Bonbright addition to the city of Flint was made and filed in 1908. Three additions have been made thereto, the third in 1914. Defendants, the trustees of the Christian and Missionary Alliance Gospel Tabernacle, in the city of Flint, appeal from a decree enjoining them from proceeding with the erection of a building in the third addition to be used for church purposes. The plaintiffs, 23 in number, reside on lots adjacent to or within a few blocks of the proposed construction. The question presented is whether the erection of the proposed building will violate the restrictive provisions contained in all of the deeds from the plat owner to purchasers in the subdivision. These restrictions read as follows:
“This deed is made subject to the following building restrictions which have been adopted for the Pomeroy-Bonbright First, Second and Third additions :
“First: No houses shall be erected in the First addition which shall cost less than six hundred dollars, nor in the Second addition which shall cost less than one thousand dollars, nor in the Third addition which shall cost less than twenty-five hundred dollars.
“Second: The front foundation wall of all houses shall not be less than twenty-five feet from the street line.
“Third: All houses shall have a suitable foundation of brick, stone or cement, and shall be built in a good and workmanlike manner, the frame work to be of suitable material, and the studding and raft.ers used thereon shall be not less than two by four in size.
“Fourth: No buildings other than a'dwelling shall be built within twenty-five feet from any street line, except on lots reserved for store sites as hereinafter provided in clause 5.
“Fifth: A store or public building, costing not less than three thousand dollars, the outside walls of which are constructed of brick, stone or cement with block finish, may be erected on any lot adjoining Saginaw street in the Third addition without regard to any building line. ’ ’ ,
The front of defendants’ building was located 25 feet from the street line. The first restriction limits the cost of “houses” to be erected. The second prescribes the distance of the foundation wall from the line of the street. The third provides for the manner in which the “houses” shall be built. The fourth is the troublesome one. It reads :
“No buildings other than a dwelling shall be built within twenty-five feet from any street line, except on lots reserved for store sites as hereinafter provided in clause 5.”
The fifth releases stores or public buildings on Saginaw street from compliance with the building line.
It is urged by defendants’ attorney that, in view of the limitation of the building line in the second restriction, the fourth was unnecessary unless the intent was to permit buildings other than residences to be erected if compliance therewith be had. While the first three refer to “houses,” only the fourth applies to “buildings other than a dwelling.”
This court has gone far to protect the owners of property in residential districts from the invasion of buildings intended for use for business or public purposes. We can, however, but give the language used a fair construction. We may not add thereto for the purpose of 'broadening the restriction, nor deduct therefrom for the purpose of limitation. As the restriction appears in the deed, it must be construed strictly against the grantor, and any doubt arising will be solved in favor of an unlimited use of the property. Austin v. Kirby, 240 Mich. 56, and cases cited.
If we read the restrictive covenants omitting the fourth, the intent to restrict the use of the property to dwellings except “on any lot adjoining Saginaw street in the Third addition” is quite clearly apparent. Why was the “Fourth” restriction inserted? May we treat it as surplusage? The claim of the plaintiffs is based upon our duty to do so. The language used is not ambiguous, nor does it contradict or vary the provisions in the other four. After providing the conditions under which “houses” may be built in the first three and permitting stores or public buildings to be built in the fifth, it plainly says that “No buildings other than a dwelling shall be built within twenty-five feet from any street line.” The restriction in this respect is clearly stated. The word “buildings” must, therefore, have been intended to refer to a structure other than a dwelling.
The evidence discloses that apartment houses have' been erected in the third addition and two churches in the first addition. These contained similar restrictions. The gravamen of plaintiffs’ complaint is well stated in the testimony of one of them:
“We don’t object to any ordinary church. We have one little church near us there that we have no objection to. I object to this particular denomination. We have always known them that they were noisy; that is why I object to them. The Lutheran church is just a block from us east. It is about five blocks to the Catholic church. The Dort school is four blocks north from us, and about five blocks south to the big Catholic school they are building now. * * *
“Q. If this were a Catholic church that was being built where this Tabernacle is being built, you would not object to it, would you?
“A. I guess not. I would not think that was objectionable and a damage to the community, and nobody else seems to think so.”
Counsel for plaintiffs relies on the construction placed on the restrictions in Stewart v. Stark, 181 Mich. 408. The word “building” as distinguished from “house” also appeared therein. It was said:
“The language of the restrictions and the condition of the property when it was platted support the idea that it was intended and supposed that residences only and necessary and convenient outbuildings would be erected on the property. ’ ’
This strongly supports plaintiffs’ contention, but, as pointed out by defendants’ attorney, it was also said:
“It is unnecessary for us to consider whether the restrictions impliedly deny the right to build store buildings upon the property.”
The decree of the trial court will be set aside, and one may be entered here dismissing the bill of complaint, with costs to defendants.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
Wiest, J.
This is a building restriction case, and presents the question whether use of property, restricted by covenant running with the land to “one single private dwelling house,” prohibits the erection and use of a college fraternity or chapter house. Plaintiffs own and reside upon premises in a residential district in the city of Ann Arbor, restricted by deed, as above mentioned. Defendants Lloyd purchased premises adjoining plaintiffs, subjected by deed to the same restriction, and sold the premises to defendants Menefee on land contract, carrying the restriction, and the Menefees sold their contract interest to defendant Phi Sigma Delta House Corporation, subject to the restriction. Other neighboring property is restricted likewise. Defendants appealed from a decree enjoining construction of a fraternity house on the premises.
The language employed in stating the restriction is to be taken in its ordinary and generally understood or popular sense, and is not to be subjectéd to technical refinement, nor the words torn from their association and their separate meanings sought in a lexicon. The term as a connected whole was employed for a purpose and if such purpose is manifest, and the words to accomplish it apt, we need only make application thereof to the facts established by the evidence. We here find the term employed for restrictive purposes in deeds, a land contract, and transfer thereof, and, therefore, it is a restrictive covenant running with the lands burdened and benefited thereby. We have before us, even as defendant corporation had before it in the very transfer under which it claims, a restriction couched in a few English words of common use and general understanding, and we must accord them their ordinary or popular sense in the accomplishment of the purpose the words as a term express. The restriction was imposed by an owner when he sold lots in a residential district, and the purpose was to preserve such character with its assurance of privacy and quiet enjoyment for the reciprocal benefit of all purchasers of lots.
Abstractedly stated, the words dwelling house are of multiple meanings (19 C. J. p. 843), but they assume concrete meaning, to accord with the sense in which they are employed, in particular instances. In building restriction cases involving covenants, the term “private dwelling house” means a building designed as a single dwelling to be used by one family. Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Kingston v. Busch, 176 Mich. 566; De Galan v. Barak, 223 Mich. 378. Defendants do not quarrel with such meaning of the term, but think it inapplicable.
It is the contention of defendants that a college fraternity, being an association of students, bound by ties of friendship and mutual obligations for convenience in having living quarters and accommodations, inclusive of recreational advantages and society purposes, constitutes the members one family and the fraternity house a single private dwelling house. A college fraternity may assume some attributes characteristic‘of a natural family relation, but does so for the comfort of the members and for convenience of management, and it is obvious that the relation is purely artificial, is a business proposition, and more nearly approximates the character of a club, boarding house, or apartment house, with added recreational privileges, than a family.
The defendant corporation does not intend to erect a single private dwelling house upon the premises. Such a house would be of no use for its purposes. It needs a large building to serve as a boarding place for many members, sleeping accommodations for 30 or more, and club and recreational and gathering headquarters for all of its members. But it is said that the house is to have but one kitchen and such fact will constitute it one single private dwelling house. We do not think so. A family hotel, a boarding house, lodge quarters, churches, clubs, and restaurants may have but one kitchen, and yet not one such be able to qualify under the term “one single private dwelling house.”
Plaintiffs cite Hannan v. Harper, 189 Wis. 588 (208 N. W. 255, 45 A. L. R. 1139), and defendants cite City of Syracuse v. Snow, 205 N. Y. Supp. 785. The Hannan Case involved the law of landlord and tenant, and it was held that right of quiet enjoyment by a tenant, renting the first floor of a dwelling house, prevented the landlord from renting the second floor to a college fraternity. The Syracuse Case involved construction of a zoning ordinance, under which a sorority, qualified by ordinance definition to be in one class and location, was placed in another.
Definitions, adopted for legislative purposes in housing codes and zoning ordinances, cannot be employed in interpreting or construing a restrictive covenant running with land. The purpose of the restrictive covenant in the case at bar was to maintain the quiet, the privacy, and family character of a residental district.
We hold that a restrictive covenant running with land, limiting use thereof to “one single private dwelling house,” means one house, for a single family, living in a private state, and prohibits a college fraternity, or chapter house, intended to provide board and rooms for part of the members and a gathering place for fraternity purposes for all 'members.
The decree in the circuit is affirmed, with costs to plaintiffs.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fead, J.
From its organization in 1901 to September, 1925, E. A. Holden was secretary and treasurer of plaintiff company, had general management subject to the approval of the president, possessed the confidence of the directors, and was the dominating figure in its affairs. The company wrote farm fire insurance, designating the risks as classes 1 and 2. In 1920, under a law of 1919, it began to write mercantile and other risks as class 3, Harold P. Holden was made superintendent of agents, a force of solicitors and reviewers of risks was built up, and approximately $3,000,000 of class 3 business was written.
About the beginning of 1921, E. A. Holden, his son Harold, and his brother Berto organized an insurance partnership under the name of Holden Agency, with Harold as active manager. As secretary of plaintiff, E. A. Holden made a verbal arrangement with Harold by which the agency took over the soliciting and writing of class 3 insurance for the company on a commission basis of 25 per cent, of premiums and one-half of membership fees on business produced by it. Under order of E. A. Holden, the class 3 insurance then in force or in process of closing was turned over to the agency and it received commissions approximating 5 per cent, thereon.
In October, 1922, the State insurance department, after report by its examiner Treanor, criticized the agency arrangement on the ground that there was no contract between the company and the agency,' and because E. A. Holden, as secretary of plaintiff, was dealing with himself as a member of the partnership. E. A. Holden, for plaintiff, and Harold, for the agency, then executed a written contract which they dated November 1st. On November 20, 1922, the board of directors of plaintiff, after considering the Treanor report and hearing E. A. Holden’s statement that he had withdrawn from the agency, adopted the following resolution:
“Moved and unanimously carried that this board confirm and approve of the arrangement and con tract with the Holden Agency for producing class 3 business and the giving said agency 25% of all receipts on class 3 business other than policy 'and membership fees and 50% of all such fees, copy of which contract is hereto attached.”
The agency continued to write class 3 business until 1925, when the State insurance commissioner expressed the opinion that the agency was sapping the finances of the company, and, at a meeting in September, plaintiff’s board of directors, after reading the contract, declared it canceled and notified the agency.
Shortly thereafter, E. A. Holden resigned as secretary, and audit was made of his accounts, and, after conferences looking to an adjustment, this suit was commenced to require him and the members of the Holden Agency to account for a large number of items which plaintiff claimed had been misappropriated by them or some of them. At the hearing, plaintiff withdrew some of its charges; the chancellor allowed some and rejected others.- Defendants denied misappropriations, and the Holden Agency claimed damages of over $40,000 for cancellation of contract, on account of being deprived of commissions on business written during .the period provided in the contract for notice of cancellation and also for loss of commissions on future renewals.
Defendants made preliminary motion to dismiss the bill on the grounds that it was multifarious, there was misjoinder of defendants, and plaintiff had an adequate remedy at law. Equity may compel an accounting, where fraud is charged or fiduciary relations exist. Both were charged. There was no misjoinder. Michigan National Bank v. Hill, 181 Mich. 7. The bill had one primary object, to reach funds misappropriated by or through E. A. Holden. The motion was properly denied.
The issue around which many of the items in dispute revolve is the validity of the contract between plaintiff and the Holden Agency. In addition to provisions for payment of commissions and fees, the written contract contained the following :
“The agency shall have exclusive right to all renewals on business it contributés to the company.
“This contract may be canceled at -any time as regards new business by either party hereto by giving ninety days’ notice.
“This is the oral contract or mutual understanding under which the company and the agency have been, operating for nearly two years and now for the first time put into writing.”
Defendants contend that this contract was ratified by the resolution of the board of directors on November 20, 1922. Plaintiff claims that the clause regarding renewals was not known to the directors, and the contract was not ratified. One directer testified that a contract was read at the meeting of ratification. The others denied this. No lay director actually read the contract himself at that time nor until after difficulty arose. The effect here claimed for it was not explained to them.
An officer of a corporation may deal with the corporation if his acts are open and fair' and known to the directors and stockholders. Barnes v. Spencer & Barnes Co., 162 Mich. 509; Quinn v. Manufacturing Co., 201 Mich. 664.
“The rule obtaining in a majority of jurisdictions is that a director may deal or contract with the corporation where he acts in good faith and the corporation is represented by a quorum of disinterested directors or other independent officers or agents authorized to contract for it. Such a contract is not void per se nor is it voidable, except for unfairness or fraud, for which it will be closely scrutinized in equity. Similarly an officer may deal with the corporation if his acts are open and fair and known to the directors and stockholders; but all dealings between an officer of a corporation and the board of directors must be scrutinized carefully, and to bind the stockholders must bear evidence of having been in the interests of the corporation. * * *
“The burden of showing the validity of the contract and the fairness and honesty of his dealings with the corporation is on the director, officer or agent.
“The contract is valid and unassailable when it has been authorized, consented to, or ratified, by the body of the stockholders, or by all the stockholders, or by all the stockholders and directors. Also the contract is capable of being ratified by the lawful action of the board of directors expressed by a vote taken by a disinterested quorum.” 14A C. J. pp. 118-120.
Defendants contend that the contract gave the Holden Agency perpetual right, to commissions on renewals of all business it contributed to the company; that it could not be canceled as to such business ; that this provision was fair and in accordance with the usual practice of insurance agencies.
They did not substantiate the claim of fairness by the testimony of any witnesses familiar with the insurance business other than themselves. "Without such testimony, it could hardly be held reasonable that an agency have a perpetual right to renewals; nor to any renewals, after termination of the contract, on the same basis as for writing the original business.
The resolution of ratification contained no indication that the contract covered perpetual renewal right. The evidence is convincing that the directors of plaintiff did not understand that this provision, was in the contract when they adopted the resolution in November, 1922. The fact that the first agreement .was in parol, made by the secretary alone with his own firm, and that the subsequent written contract was executed by him for the company in advance of the meeting of the directors and was made with his close relatives and partners, are causes of grave suspicion. If the deal were fair, an officer of a corporation under such circumstances ordinarily would have submitted the whole matter to the directors for negotiation, or at least have insisted upon participation by disinterested officers'with authority. The written contract was so drafted that its full effect might easily escape notice, especially of men who, like directors of plaintiff, were not versed in such affairs and had confidence in their secretary. The reading of the contract, if it was read at the meeting, would not have been likely to convey to the hearers the purport of the perpetual renewal clause. Nor did the secretary perform his duty in merely reading the contract. He owed the duty of complete frankness and disclosure in fully informing the directors not only of the words of the contract but of precisely what they meant. It is hardly conceivable that they would have approved the right to renewals after cancellation of the contract, without some limitation. The contract was not authorized nor ratified by the directors of plaintiff company in the form written. Their ratification did not go beyond the particular specifications set out in the resolution.
The original oral contract, if of the substance of the written agreement, was invalid becausé made by the secretary of plaintiff with a partnership of which he was a member, it was not shown to have been fair, and it was not authorized by the board of directors or stockholders. The original contract having been invalid, the withdrawal of E. A. Holden from the agency, assuming the withdrawal was actual and effective, did not constitute the other members of the agency innocent third parties dealing at arm’s length with the corporation. To rely upon ratification of the contract, it was incumbent upon them to know that it was ratified by a quorum of disinterested directors with full knowledge of its character and purport. The written contract was of no effect to bind plaintiff because by its terms it was merely written evidence of the void oral agreement, and, as a new engagement, it was not ratified by the board of directors with knowledge of its contents and effect if indeed, under the circumstances, the board had power to ratify. The Holden Agency is not entitled to damages for its cancellation, but is entitled to reasonable compensation for services it nerformed for plaintiff in connection therewith.
Defendants ask reimbursement on the quantum meruit for over $23,000 which they claim they expended in excess of commissions received by them, to write the insurance before cancellation of the contract. The computation was given by Harold P. Holden in a lump sum without substantiation by books or records and without specifications. There was no acceptable testimony of the value of the services in excess of receipts. We are particularly inclined to hold that the commissions and fees constituted fair compensation for business written by the agency because it was so conceded by plaintiff, and the testimony leaves an abiding impression that such was the original agreement, as disclosed to and understood by the directors, and that the insertion, of the permanent renewal clause in the written contract was done and concealed from them under plan of E. A. Holden and Harold to secure an advantage over the corporation. The allowance by the chancellor of the agreed commissions and membership fees for work done by the Holden Agency in writing class 3 business is approved.
The record in the case is exhaustive, the accounts complicated, the items in dispute numerous, and no good purpose would be served in detailed discussion of them. They will be dealt with briefly.
In connection with collection of delinquent assessments from 1915 to 1917, E. A. Holden made an agreement with.an attorney to collect on a per diem basis, represented that the agreement was for percentage and had returns made to the company on the latter basis. While the applicable rule would charge Holden with all sums not properly accounted for, we appreciate the difficulty of explaining ancient matters, the accounts were not entirely clear, and we think the court reached a fair result in charging ■him with amounts traced directly to him, in the sum of $1,667.34.
On February 10,1922, E. A. Holden received payment from the company of $150 for depreciation and use of his car by W. H. Keddy on Holden Agency business. The allowance of this item is approved but it should run against E. A. Holden personally.
The other items affecting E. A. Holden personally and not the agency are conceded debit of $58.60 and credit of $2,362.85.
Items of $13,765.31, $365.61 and $83.85 are conceded credits to plaintiff in agency transactions.
Defendants did not show that their charge of 5 per cent, for keeping accounts of insurance written by plaintiff’s employees in 1921 was reasonable, and allowance of item of' $1,241.11 to plaintiff is approved,
No testimony that membership fees on policies written by plaintiff’s agents in 1921 were retained by Holden Agency was pointed out by plaintiff’s counsel nor discovered in the record. The item of $618 allowed plaintiff, should be stricken.
At a June, 1923, meeting of the board of directors, a special assessment of $90,000 was ordered, $43,128.08 was voluntarily paid to plaintiff before October 10th, and $36,444.04 was collected by the Holden Agency or voluntarily paid to the company. The board did not authorize the employment of the agency to make the collection. But shortly thereafter, E. A. Holden, H. E. Straight, director of plaintiff and an employee of the agency, and Harold Holden made a verbal arrangement by which the Holden Agency should collect the assessments and return to plaintiff 75 per cent, of the original amounts, nothing being said about stipulated damages. Defendants claimed that President Moore participated in the agreement. Moore denied this. Whether true or not, Moore knew the agency was collecting. In July a meeting of a quorum of the board was had, the special assessment, discussed, arrangements made for a vigorous campaign for collection by the company, but the claimed agreement with the Holden Agency was not presented to the board, not ratified, and several members did not know of it, while others had heard that the agency was to collect and understood it was to receive 25 per cent, of the amounts it actually collected. In a letter to the policy holders, E. Á. Holden represented that the duty of collecting was upon him, and the whole reserve belonged to them. As payments came to the company they were turned over to the agency, which deducted 25 per cent, and returned the balance to the company. To permit the agency commission on assessments voluntarily paid to the company -before there was any necessity to employ collectors, under an arrangement so máde, would be a fraud upon the policy holders. The agency would be entitled to reasonable compensation for the services it performed. Its claim of great expense in excess of receipts was not substantiated by the production of books or records nor by specifications capable of appraisal. The allowance to plaintiff of item of $10,782.02, retained by Holden Agency on collections made by the company before October 10th, is approved.
In connection with such special assessment the Holden Agency collected some stipulated damages. There was nothing in its claimed arrangement which gave it the right to retain such damages. The amount of such damages chargeable upon assessments collected by the agency, after damages accrued, would be $8,436.05. It is claimed, and doubtless true, that such amount was not collected because the validity of such damages was in doubt until the opinion of this court in State Mutual Rodded Fire Ins. Co. v. Randall, 232 Mich. 210 (41 A. L. R. 973). Defendants have not shown the amount actually collected, and the court had no recourse except to charge the full amount to them. The penalty of overcharge, if any, must be laid to failure of defendants to make frank disclosure or to keep proper records. However, the chancellor did not allow the agency collection fees on these damages, and we think they should be awarded. This item will be reduced 25 per cent.
The other items of the account have been given due consideration and the findings of the circuit court thereon are approved. Except as to the items named as applying to E. A. Holden personally, the decree charging the misappropriations to all the defendants is approved.
The decree will be modified in accordance with this opinion and affirmed, with costs to plaintiff.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred; | [
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Potter, J.
Plaintiff began suit January 14, 1925, by declaration and rule to plead, against the Grand Trunk Bailway Company to recover damages from injuries claimed to have been sustained in a crossing accident in the city of Hamtramck, October 19, 1924. The sheriff’s return showed service on W. C. Tom-kins, treasurer of the Grand Trunk Company. January 30, 1925, the Canadian National Bailway Company filed a plea of the general issue. October 5, 1925, application was made by plaintiff to make the Grand Trunk Bailway Company of Canada, the Detroit, Grand Haven & Milwaukee Bailway Company, the Chicago, Detroit & Canada Grand Trunk Junction Bailroad Company, the Grand Trunk Bailway System, and the Detroit & Canada Grand Trunk Junction Bailway, parties defendant, which application was granted, the court directing process to be issued against each of them. Service was made on M. J. Broderick, chief clerk of all the above-named railways. October 23, 1925, the Canadian National Bailway Company appeared. It said the Grand Trunk Bailway Company of Canada was amalgamated with other corporations January 31, 1923, under the name of Canadian National Bailway Company; that there was no such corporation as the Grand Trunk Bailway Company of Canada; that as successor by such amalgamation the Canadian National Bailway Company was the lessee of the Chicago, Detroit & Canada Grand Trunk Junction Bail-road Company; and that the Grand Trunk Bailway System was not a corporation, but a trade-name used to designate several affiliated companies. The Detroit, Grand Haven & Milwaukee Bailway Company and the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company appeared. January 14, 1925, plaintiff filed an amended declaration against all the defendants above named. December 29, 1927, a motion was made by plaintiff to amend the declaration so as to read in the plural number instead of the singular, and this motion was allowed. On the same day a motion was made to amend the name of the defendant named in the declaration as the Grand Trunk Railway Company, a corporation, so as to read the “Grand Trunk Western Railway Company, a corporation,” and to amend the return of process so as to show service of the declaration and rule to plead on the Grand Trunk Western Railway Company in the place and stead of- Grand Trunk Railway Company. This motion was, on January 9, 1928, granted, whereupon the Grand Trunk Western Railway Company filed exceptions to the action of the court in naming it a defendant against its objections, for the reason there was no showing of service upon it prior to the running of the statute of limitations, and it had not previously entered its appearance in said cause. On January 17, 1928, the Grand Trunk Western Railway Company, the Detroit, Grand Haven & Milwaukee Railway Company, and the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company, filed a plea of the general issue. The Chicago, Detroit & Canada Grand Trunk Junction Railroad Company gave notice it would insist, in its defense under the general issue, its railroad and property were under lease to the Canadian National Railway Company, successor by amalgamation to the Grand Trunk Railway Company of Canada, and said property and railroad were under lease and not operated by it at the date of the accident described in plaintiff’s declaration. May 1, 1928, the cause came on for trial before the court and a jury, and resulted in a verdict of $10,000 for plaintiff against defendant Grand Trunk Western Railway Company, whereupon plaintiff made a motion that the verdict directed against the plaintiff in favor of the Canadian National Railway Company, and the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company be set aside and a judgment entered against said defendants on the verdict of May 3,1928, because, by the admission of counsel for the Canadian National Railway Company, it was one of the owners and operators of the engine moving the cars resulting in plaintiff’s injuries, and the evidence showed the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company was required by the State to lower the gates where car movements were made at the .crossing of its tracks with Conant avenue in the city of Hamtramck, which duty it failed to perform at the time plaintiff was injured, which failure was one of the proximate causes of the accident. Plaintiff asked, if this motion was denied, that a new trial be granted as against the Canadian National Railway Company, and the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company for the reasons set forth therein. Plaintiff excepted the Grand Trunk Western Railway Company and claimed to make the same without waiver of any rights against the Grand Trnnk Western Railway Company, moving solely against the Canadian National Railway Company and the Detroit & Canada Grand Trunk Junction Railroad Company. Judgment was entered for plaintiff against defendant Grand Trunk Western Railway Company upon the verdict May 3, 1928. June 23, 1928, the defendant Grand' Trunk Western Railway Company brought on for hearing a motion for a new trial, which motion was overruled by the court, whereupon defendant assigned 25 errors grouped under 5 heads:
First. The Grand Trunk Western Railway Company was not properly before the court as a de- ■ fendant on the second trial for the reason it was error for the circuit judge to grant the order of January 7, 1928, making it a party; and because there was an order of dismissal on February 20, 1928, during the first trial, dismissing the suit as to the Grand Trunk Railway Company, and this constituted a dismissal of the suit as against the Grand Trunk Western Railway Company.
Second. The court was in error in holding the Grand Trunk Western Railway Company to be the party defendant legally responsible if there wás any liability; defendant claiming the verdict should have been directed in favor of the Grand Trunk Western Railway Company because the responsible party defendant, if any, was the Canadian National Railway Company.
Third. The verdict was against the overwhelming weight of the evidence, and defendant’s motion for a new trial should have been granted.
Fourth. The court erred in excluding from evidence the records of Grace hospital alleged to indicate plaintiff had an alcoholic breath when brought to the hospital after the injury; and
Fifth. The court erred in excluding the transcript of the testimony of the towerman given on the previous trial. .
The case was submitted here at the October, 1928, term. Afterward a motion was made in the circuit court to correct the calendar and journal entries of February 20, 1928, indicating the cause was dismissed as to the Grand Trunk Railway Company, and the circuit court entered an order amending said calendar and journal entries by striking the same, whereupon a motion was made here October 29, 1928, to amend the record by incorporating therein the order of the circuit court correcting said calendar and journal entries, and asking, if the same was denied, that the record be remanded to the clerk of the circuit court of Wayne county with instructions to return to this court a true and corrected record of the calendar and journal entries in the office of the clerk for the circuit court. This motion was noticed for November 6, 1928, and, no opposition being made thereto, was granted. This eliminates the errors assigned upon the proceedings subsequent to the order of February 20, 1928, dismissing the suit as to the Grand Trunk Eailway Company, which it was claimed constituted a dismissal as to the Grand Trunk Western Eailway Company.
1. Was the Grand Trunk Western Eailway Company properly before the court as a defendant? The original declaration was against the Grand Trunk Eailway Company, a corporation. The return of the sheriff shows it was served on W. C. Tomkins,' treasurer of the Grand Trunk Company. W. C. Tomkins was treasurer of the Grand Trunk Western Eailway Company. If the suit had proceeded to judgment against the Grand Trunk Eailway Company, such judgment would have been res judicata of a subsequent suit against the Grand Trunk Western Eailway Company. Youngblood v. Railway Co., 239 Mich. 136. This court has approved the rule laid down in 31 Cyc. p. 487, as follows:
“As a general rule, under the statutes, a misnomer of a plaintiff or defendant is amendable unless the amendment is such as to effect an entire change of parties. But where the right corporation has been sued by the wrong name and service has been made upon the right party, although by a wrong name, an amendment substituting the true name of the corporation may be permitted.”
See, also, Daly v. Blair, 183 Mich. 351; Parke, Davis & Co. v. Railway System, 207 Mich. 388; Youngblood v. Railway Co., supra. The court had authority, under the statute (3 Comp. Laws 1915, § 12478), to grant the amendment.
2. Was the court in error in holding the Grand Trunk Western Railway Company legally responsible, defendant claiming the verdict should have been against the Canadian National Railway Company, if anyone?
Defendant’s witness John Keleher testified:
“I am an employee of the Grand Trunk Railway System. I was in their employ oh October 19, 1924. * * * On October 19, 1924, I was yard conductor with the Grand Trunk Railway System. * * * On October 19, 1924, I was working for the Grand Trunk.
“Q. What do you mean by ‘Grand Trunk’?
“Mr. Geer: Tour honor, I object to that; if it is for the purpose of binding any one railroad, why, this man is not the proper party for cross-examination.
“The Court: We will take the answer.
“A. I just mean it is Grand Trunk. That is on our pay check, is ‘Grand Trunk’ and I got a Grand Trunk book of rules and I am working for the Grand Trunk. That is all I know. I don’t carry my book of rules down here. They are in my working clothes. I have no necessity for them here. .(A book produced was thereupon marked ‘Exhibit 7’ by the reporter. Exhibit 7 is apparently a Grand Trunk Railway book.)
“Mr. Geer:- No objection.
“The Court: Do you offer the exhibit?
“Mr. Bresnahan: Not at this time, your honor.
“As near as possible all of the rules of the Grand Trunk were observed that day on this particular switching movement. I am familiar with Rule 102 of my road. .That rule has nothing to do with that day. On the 24th of October I was not working for the Canadian National Eailway. I was working for the Grand Trunk. * * *
“A. Man, I don’t know. I hired out for the Grand Trunk Eailway, my check is signed ‘Grand Trunk,’ and the rule book is Grand Trunk. Now, what am I supposed to know; I ain’t a lawyer. I don’t go to all the trouble to find out all inside and outside where I am working. I am getting paid for what I do.
“The Court: That is enough.”
Defendant’s witness Isaac J. Heath testified as follows:
“I am employed by the Grand Trunk Eailway System. I was employed by them on October 19, 1924. At that time I was engineer. * * *
“Q. I will ask you, Mr. Heath, who you are working for?
“A. So far as I know, the Grand Trunk.
“Q. Did you ever hear of the Canadian National Eailway?
“A. Well, yes.
“Q. Are you working for them?'
“A. Well, all I know is Grand Trunk on the pay check.
“Q. That is the thing you are principally interested in, is the pay check?
“A. Every two weeks, yes.
“ Q. Well, have you ever seen the name of Canadian National Eailway on that pay check that you get?
“A. No, I never did.
“Q. Did you get the same sort of check, the same printing on it and the same names—
“A. Yes, but I think the paper is a little different shade of color at times.
“Q. Did you ever get hold of a pink pay check?
“A. Well, I couldn’t just recall as to that.
“Q. I see. Now, are you sure you never got a ■pay check from the Canadian National Railway?
“A. Well, I am quite sure.
“Q. Did you ever work for the Canadian National Railway?
“A. Well, as I say, so far as I know, I am working for the Grand Trunk.
“ Q. Well, did you ever hear of a railroad called the Canadian National Railway?
“Mr. Geer: Your honor, I object to this line of questioning.
“A. Yes, I have heard about it.
“The Court: The answer may stand.
“Q. Have you ever worked for them?
“A. Not that I know of.”
Defendant’s witness Ray Wells testified as follows :
“I am in the employ of the Grand Trunk Railway System. I was employed by them on October 19, 1924, in the capacity of yardmaster. * * * I am working for Grand Trunk, and was on the 19th of October, 1924.
“Q. Grand Trunk what?
“A. Grand Trunk Railway System.
“Q. Were you working for the Canadian National?
“A. Not to my knowledge.
“Q. On that day?
“A. Not to my knowledge.
“Q. Not to your knowledge?
“A. No, sir. * * *
“Q. And did you ever work for the Canadian National Railway System or Railway Company?
“A. Not to my knowledge.
“Q. Has the Canadian National Railway Company got a railroad in Detroit?
“A. Not to my knowledge.
“Q. And you are pretty familiar -with the different divisions of the Grand Trunk, are you?
“A. In the western lines.
“Q. On the western lines?
“A- Yes, sir;
“Q. West of the Detroit river?
“A. Yes, sir.
“Q. And west of St. Clair river?
“A. Yes, sir;
“Q. Did you ever hear of the Canadian National Bailway Company operating any trains on any road or ány portion of the Grand Trunk System west of the Detroit river?
“A. No, sir.
“Q. They don’t do that?
“A. Not to my knowledge.
“Q. Do you know who the attorneys for the Canadian National Bailway System are?
“A. No, sir. * * * I think I hired out to the Grand Trunk Western Railway. That is the company I hired out to.
- “Q. Well, then, it is not the Grand Trunk Railway System you are working for. It is the Grand Trunk Western?
“A. What would be the difference?
“Q. I am asking you now if you are working for the Grand Trunk Western or Grand Trunk Railway System?
“A. Well, I don’t know as—
“ Q. You hired out for the Grand Trunk Western?
“A. Yes, I believe the application does say ‘Grand Trunk Western.’
“ Q. You have never been discharged or quit your job with the Grand Trunk Railway, and you still are working for them and have been for seventeen years ?
“A. I wouldn’t say that I have been hired by them; but I haven’t been fired by them.
“Q. Well, yon are still working for them, aren’t yon?
“A. Yes, sir.
“Q. Grand Trunk Western?
“A. Yes, sir.
“Q. Yes, sir.
“A. I suppose.
“Q. And Keleher here works for the Grand Trunk Western, too, doesn’t he? * * *
“The Court: Take the answer if he knows.
“A. I suppose he works for the Grand Trunk Western, yes, sir.
“Q. Well, he is working for the Grand Trunk Western?
“A. So far as we know.
“Q. And he has been working for them for five years, has he?
“A. Approximately that.
“Q. And who does Heath work for — Grand Trunk Western?
“A. We all work for the Grand Trunk Western, yes, sir. * * *
“Q. And the Grand Trunk Western Railway have large engines with names ‘Grand Trunk Western’ printed in big white letters on the tender, haven’t they?
“A. Yes, sir.”
This testimony was sufficient to bring the case within the rule of Brandt v. C. F. Smith Co., 242 Mich. 217.
3. Was the verdict against the overwhelming weight of the evidence? The testimony, both of the plaintiff and of the person who accompanied him at the time of injury, was directly opposed to that of the witnesses for defendant. The plaintiff was corroborated by another witness. The facts were in dispute; the testimony in irreconcilable conflict. The jury were judges of the facts. There was ample testimony to support the verdict.
4. Did the court err in excluding the evidence of the records of Grace hospital? The witness, Engelbach, sworn by defendant, produced a record from Grace hospital purporting to be of the doctor’s orders, all laboratory work, the examination of the patient by the interne, progress notes on the patient, and, one week, — the temperature and pulse respiration chart, — and the record for one week of the nurse’s notes. It does not appear by whom this record was made. It was signed by Doctor Schroeder. The witness had nothing to do with making the report, and was not connected with the hospital at the time the memorandum was made. The record was one kept in the ordinary course of business, was under the supervision of witness at the trial, having been turned over to him the day before. The witness did not claim to know anything about the case except as shown by the record. In the 'absence of statute, hospital records are, as a rule, not admissible as evidence of the facts therein stated. 22 C. J. p. 902. Records made by others than those examining the patient are inadmissible (Meyer v. Railroad Co., 152 N. Y. App. Div. 709 [137 N. Y. Supp. 529]), and records made in part by a physician and in part by others, not produced, are not admissible (Levy v. Mott Iron Works, 143 N. Y. App. Div. 7 [127 N. Y. Supp. 506]). To be admissible, written memoranda must be made contemporaneously with the facts to which they relate. Ribas v. Revere Rubber Co., 37 R. I. 189 (91 Atl. 58). The hospital records were written memoranda, and, as offered, hearsay. Caldwell v. Bowen, 80 Mich. 382. The court properly refused to admit the testimony.
5. Was the court in error in excluding the transcript of the testimony of the towerman given on the previous trial? At the time of the trial under consideration, he was out of the State. The defendant offered in evidence what purported to be a transcript of the testimony, on the previous trial, of the towerman at the crossing. The testimony was not authenticated and was properly excluded. Toohey v. Plummer, 69 Mich. 345.
Judgment affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This action is brought to recover on a policy issued by the defendant on July 13, 1925, guaranteeing plaintiff against loss to an amount not exceeding $25,000 due to insolvency of his debtors during one year thereafter, resulting from bona fide sales of scrap iron and metals delivered to firms in the United States or Canada having in the latest published book of the Bradstreet Mercantile Agency a commercial rating and its accompanying credit rating as tabulated in the policy.
There were two corporations, named Railway Materials Company, one an Illinois corporation, with plants at Stevens Point, Wisconsin, and Phcenixville, Pennsylvania, and the other an Ohio corporation, with a plant at Toledo. William M. Simpson was president of both companies. The stock of the Ohio corporation was all owned by the Illinois corporation. Both corporations became insolvent. The Illinois one alone had the rating required by the terms of the policy.
. Plaintiff’s action is predicated upon sales claimed to have been made to the Illinois corporation. The amount is not in dispute. Plaintiff had verdict and judgment. Defendant seeks review by writ of error.
We will consider the assignments in the order discussed by counsel.
1. Admission of Proof. It was incumbent on plaintiff to prove that the sales were made by him to the Illinois corporation. While the policy was not issued until July 13, 1925, plaintiff stated on cross-examination that the Railway Materials Company at that time owed him about $15,000'. He was then asked: “And you wanted to have the company indemnify you for that backward, didn’t you?” On objection by plaintiff’s counsel for the reason that plaintiff made no claim for loss antecedent to the date of the policy, defendant’s attorney insisted on the answer “as leading up to his knowledge as to the party with whom he was dealing later on in the transaction. ’ ’ During the discussion which followed, the court said:
“It is possible evidence is admissible to show that he knew of the other company, but not what his losses were.”
While other rulings were' made which counsel- say prevented them from pursuing this line of inquiry, when the entire cross-examination is read we think they were permitted to and did get before the jury their claim that plaintiff had extended credit to the Ohio corporation before the policy was issued, and that the sales thereafter were made to the same company. They were permitted to show that after the financial failure of both corporations plaintiff signed a hill of complaint for filing in the district court of the United States for the northern district of Ohio, western division, in which he alleged that the Ohio corporation was indebted to him in the sum of $23,009.23, and prayed for the appointment of a receiver for said company. This bill of complaint was not verified by.him or filed. He explained the manner in which it was prepared by attorneys for the defendant and his lack of knowledge of its legal effect. While defendant’s counsel preferred a number of requests to charge, there was none which presented the effect of such action, on the part of the plaintiff. The jury were instructed several times in the charge that in order to find for the plaintiff they must find that the goods were ordered by the Illinois corporation and shipped at its request to Toledo. That there was evidence to support this finding clearly appears. After plaintiff’s Exhibit 2, which was a list of the invoices sent to “The Railway Materials Company,'.Chicago, Illinois,” on shipments made by.plaintiff “direct to Toledo plant,” had been received in evidence, President Simpson was asked: “You purchased all materials referred to in plaintiff’s Exhibit 2 as president of the Illinois corporation?” and answered: “Yes, written on Illinois letterheads.” Plaintiff’s statement of account was made and sent to “The Railway Materials Company, Wrigley Bldg., Chicago, Illinois.” It also appears that promissory notes, dated at “Chicago, Illinois,” and signed by “The Railway Materials Co., M. L. Garrity, treasurer,” were sent to plaintiff from time to time to apply on such account. While more latitude could well have been allowed in connection with plaintiff’s dealings before the policy was issued, we cannot say that error affecting the verdict resulted from the rulings of the court in relation thereto.
2. Confusion of Corporate Entities. It is urged that the jury were confused as to the liability, of the defendant for loss sustained by the plaintiff; that it was not made clear to them that unless the credit was extended to the Illinois corporation no liability attached. Counsel are, we think, over-technical in discussing this assignment. Early in the trial, and during the direct-examination of the plaintiff, his counsel said:
‘ ‘ To simplify this I can say this that all my questions and all my claim is with reference that we were dealing with the Illinois corporation, and not with the Ohio corporation. That is our claim.”
In his instructions to the jury, the court said:
“If you find as a fact from the evidence in this case that the plaintiff sold, shipped and delivered said scrap iron and metals to the Railway Materials Company of Toledo, Ohio, then your verdict should be for the defendant, of no cause for action.”
The issue was thus squarely presented to the jury, and there can be no uncertainty as to their finding.
3. Error in the Charge. One of defendant’s requests reads:
“And I charge you that for the plaintiff to recover in this case he must not only show by a preponderance of the evidence that he sold to the Illinois corporation and not to the Ohio corporation, but that he also shipped to the Illinois corporation and not to the Ohio corporation, and that he also made delivery to the Illinois corporation and not to the Ohio corporation. He must show that he did all three things, sold, shipped, and delivered to the Illinois corporation and not to the Ohio corporation and show each item by á preponderance of the evidence. ’ ’
We do not understand this to be the law. The court clearly stated in the instruction heretofore quoted that, if the sales were made to the Ohio corporation and the goods shipped and delivered to it, plaintiff could not recover. If the orders were received from and the sales made to the Illinois corporation, its liability would in no way be affected by the direction given to ship to the Toledo plant. It is not unusual in business for orders to direct delivery to be made to a party other than the one giving the order, and a delivery so made is in legal effect a delivery to the party ordering the shipment.
4. Verdict Against the Weight of the Evidence. The record is quite convincing that the plaintiff did not know when the shipments were made by him that there were two Railway Materials corporations. The Ohio corporation maintained no office at Toledo, where its plant was located. Its business was handled from the Chicago office of the Illinois corporation. As before stated, the same persons acted as officers of both corporations. The test here to be applied is: Had the Ohio company alone failed, conld recovery have been had by the plaintiff against the Illinois corporation? The orders filled after the policy was issued were all sent to plaintiff on the letterheads of the Chicago company and signed by its president. We are unable to see what defense it could have made to an action brought by plaintiff to recover thereon.
It appears that the first information defendant received that there were two corporations was about November 3, 1925. What the plaintiff did thereafter was at the request, if not under the direction, of the officials and attorneys of the defendant company.
We cannot say, after a consideration of the entire record, that the verdict is against the great weight of the evidence.
The judgment is affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
Potter, J.
Samuel Farbman and wife were owners of an equity, under a land contract, in real estate in Detroit. • Farbman sought to acquire, from Acme Lumber Company, building material to erect a building on the premises. He was unable to do so. He entered into a partnership with one Gfalper. The partnership contract was presented to Acme Lumber Company and materials furnished by it in reliance thereon. The contract recites the parties have agreed to become copartners for the purpose of erecting and constructing a two-family flat; each agrees to contribute one-half the amount required; the parties agree to purchase the piece or parcel of land described therein, being the land in which Farbman and wife had an interest; the partnership is to continue during the period required to construct and complete a two-family flat thereon and until sale of the same. There is no other proof Farbman and wife conveyed their interest to the partnership.
A partnership may buy and sell real estate. It may be conveyed only by the partnership. The signatures of the wives of the partners are not necessary for the conveyance thereof. Section 8, Act No. 72, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 7966 [8], subd. 3). Section 14796, 3 Comp. Laws 1915, provides:
“Every person wbo shall, in pursuance of any contract, express or implied, written or unwritten, existing between himself as contractor, and the owner, part owner dr lessee of any interest in real estate, build, alter, improve, repair, erect, ornament or put in, ot who shall furnish any labor or materials in or for building, altering, improving, repairing, erecting, ornamenting or putting in any house, build- ■ ing, machinery, wharf or structure, or who shall excavate, or build in whole, or in part, any foundation, cellar or basement for any such house, building, structure or wharf, or shall build or repair any sidewalks, or shall furnish any materials therefor, a,nd every person who shall be subcontractor, laborer, or material man, perform any labor or furnish materials to such original or principal contractor, or any subcontractor, in carrying forward or completing any such contract, shall have a lien therefor” etc.
The building was built as the partners contemplated. It enhanced the value of the real estate. The partners defaulted in their contract to purchase the land, if they had such contract. In any event Farbman and wife, who had an equitable interest in the land, lost their interest by foreclosure of the land contract under which they held, and that terminated their rights. They had no record title to the premises at any time.
“Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title, shall have a lien therefor upon such [building] buildings or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid. In case the property covered by the lien is held by the vendee in a land contract, and he surrenders or forfeits his rights thereunder, the person or persons holding such liens may be subrogated to the rights of such vendee, as his rights existed immediately before such surrender or forfeiture, by performing the covenants contained in such contract within thirty days after such forfeiture or surrender is made.” 3 Comp. Laws 1915, § 14798.
Mrs. Farbman had no record title to the land. If she- had any interest, such interest has been terminated. She does not hold or possess any equities to be affected by the establishment of a lien. The lien, if any exists, is against the building only — not the land. She furnished nothing and will lose nothing. Whatever rights she aiid her husband had they had as vendees under land contract. They surrendered .or forfeited their rights. Whatever rights they had in the partnership with Galper have been terminated. The lien claimant may be subrogated to the rights of the vendee under the land contract, if he performed the covenants in the contract within 30 days after such forfeiture or surrender. 3 Comp. Laws 1915, § 14798.
Notice of forfeiture of the vendee’s interest in the land contract was given February 15, 1927. By judgment, still in full force and effect, rendered March 30, 1927, the interest of the Farbmans in the premises was terminated. The Acme Lumber Company tender was made July 6,1927. Its tender came too late. The statute prescribes a method by which a' lien claimant is entitled to subrogation. That method is exclusive. It was not complied with.
The decree of the trial court is affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Sharpe, J.
In 1925, and again in 1926, the defendant applied to the plaintiff commission for a permit to “operate common carrier motor vehicle freight service between .Sault Ste. Marie and Detour,” in the county of Chippewa, in accordance with the provisions of Act No. 209, Pub. Acts 1923. Both applications were denied. The commission granted a permit therefor to the Chippewa Motor Transport Company. In its bill of complaint plaintiff alleges that defendant is, and has been for several years, engaged in the business for which such permits were sought without obtaining the same, in violation of the penal provision in such act, and prays for an injunction restraining him from doing so.
The defendant, in his answer, admits that he is, and has been, engaged in such transportation business, but avers that he has done, and is doing, so as a private carrier, and not in violation of the statute. A decree was entered dismissing the bill, from which plaintiff appeals.
The title and first section of this act were quoted at length in Rapid Railway Co. v. Utilities Commission, 225 Mich. 425, 428, and need not be here repeated. The second section empowers the commission to prescribe rules and regulations governing such carriers. It may not refuse a permit “without just cause.” Section 7 requires those to whom permits are granted to carry insurance for the protection of the property transported, and section 8 requires them to pay to the commission a fee for the privilege of engaging in such business, which shall be paid into the State treasury and used for highway purposes. The 9th section provides a penalty for a violation of any of its provisions.
Many of the States have somewhat similar statutes, but in some of them the purpose of the acts, as indicated by their titles and provisions, is to regulate the transportation of persons or property by motor vehicles. Under these acts it has been held that all carriers for hire, whether common or private, must submit to reasonable regulations and pay the license fees required as a condition to their use of the public highways. See Rutledge Co-operative Assn. v. Baughman, 153 Md. 297 (138 Atl. 29, 56 A. L. R. 1042), and Barbour v. Walker, 126 Okla. 227 (259 Pac. 552, 56 A. L. R. 1049), and cases cited therein.
Act No. 209, however, as appears from its title and provisions; has a different purpose. It is designed to regulate and control those engaged in the business of common carriers upon the public highways of the State. This court has so construed it (People v. Carr) 231 Mich. 246), as has also the Supreme Court of the United States (Michigan Public Utilities Comm’n v. Duke, 266 U. S. 570 [45 Sup. Ct. 191, 36 A. L. R. 1105]).
The commission is empowered in the public interest “to determine the number of persons, firms or corporations who should be permitted to so operate.” Rapid Railway Co. v. Utilities Commission, supra. In granting a permit to the motor company the commission determined the necessity as a matter of public convenience for the operation by a common carrier of a service for transporting property by motor vehicle for hire between Sault Ste. Marie and Detour. And by its denial of a permit to defendant it also determined that but one such permit should be granted. In other words, it determined that the transportation business between these places did not warrant the granting of a permit to two persons to engage therein.
There is proof in the record from which it may fairly be inferred that the defendant was engaged in business as a common carrier between Sault Ste. Marie and Detour before the permits were refused. He was then, as now, carrying the United States mail under contract, and carried passengers and property in connection therewith. His applications for permits clearly evidenced a desire on his part to continue in such business as a common carrier. The record discloses that after such permit was refused the defendant and several of his former customers sought the advice of. an attorney, and, as a result, separate written contracts were entered into by the defendant with all, except two, of those engaged in the retail business at Detour who required such service, wherein the defendant, in consideration of a stated amount to be paid to him monthly, agreed “to act as drayman or expressman and to carry freight and packages” for them “at and in the village of Detour and from Detour to Sault Ste. Marie, Mi'ch., or to any points intervening,” as might be designated by them. The last paragraph thereof reads as follows:
“It is further agreed that his employment will not preclude the party of the first part from making similar contracts for the carriage and transportation of freight and parcels for other parties.”
A similar contract was entered into with a woman who conducted a business at Drummond Island near Detour. The service required by these contracts was performed by defendant. He used two trucks for that purpose. He transported for' others than those with whom he had contracts. As to some of these transactions, he testified that if persons at Detour wanted something from Sault Ste. Marie they would tell him about it and he would buy it ánd pay for it and get a discount on it to pay the cost of delivery; that he would go to the express office in Sault Ste. Marie and the agent there would tell him that he had “parcels for people in Detour and I have taken these parcels from the express office and delivered them. The same thing has been true of the Soo line freight office and the South Shore freight office.” Among these were shipments from mail order Houses to people in Detour. He also made deliveries to parties along the line of road. He would “pick up cream on the route that is covered by the Chippewa Motor Bus Company for Storey who has a creamery outside of the city;” that, when re quested to get some lumber by a man at Detour, be would say, “Now, Gus, I can’t bring in lumber here for you, but I can buy and sell it for you,” and lie was advised that this was a safe thing for him to do, and he did so, charging a percentage for the delivery; that he had handled “a great deal of merchandise” in that way “in the last two years.” He further testified, .“I pick up all I can in this territory.” He was asked: “You can’t name to the court here anyone who contracts freight shipments between the Soo and Detour or between Detour and the Soo whose business you would get if you had a permit, other than those with whom you are now contracting?” and answered: “Well, I haven’t gone around to find that out. ’ ’ He further testified:
“ Q. And you would engage in a private contract from Detour to the Soo with any responsible party who would sign up — would you not?
“A. To any business man, yes.
“Q. Any business man that you thought would pay?
“A. That had any amount of freight coming that would be worth my while.”
Several of the business men with whom defendant had contracts were called as witnesses. They testified that their goods were handled in the same way as before the contracts were made; that occasionally they would request defendant to handle something for one of their customers, and thus bring it within their contract, where defendant would have handled it independently before the contracts were made.
The question here presented is whether defendant was engaged in the business of a common carrier. A comprehensive definition of this term was given in Jackson, etc., Iron Works v. Hurlbut, 158 N. Y. 34 (52 N. E. 665, 70 Am. St. Rep. 432), as follows:
“A common carrier is one who, by virtue of "his calling, undertakes, for compensation, to transport personal property from one place to another for all such as may choose to employ him; and every one who undertakes to carry for compensation the goods of all persons indifferently, is, as to liability, to be deemed a common carrier.”
This definition is, in effect, that adopted by the writers of the text in 10 C. J. p. 41 and 4 R. C. L. p. 546, and is in line with the cases cited in the footnotes thereto. There must be an undertaking on the part of the carrier to transport personal property for all who may choose to employ him. The element of public service, the serving of all persons indifferently who apply for service, is recognized in all of the eases. It is the character of the business carried on that is determinative of its nature. It is a mixed question of law and fact. What constitutes a common carrier is a question of law. Whether the service rendered comes within that meaning is a question of fact.
It is urged that defendant did not transport for all those who might “choose to employ him;” that he did not undertake to carry for all persons “indifferently.” The test generally recognized is that a common carrier is obliged, within the limits of his ability, to serve all who apply, while a private carrier is under no such obligation. In Michigan Public Utilities Commission v. Duke, supra, it was said:
“One bound to furnish transportation to the public as a common carrier must serve all, up to the capacity of his facilities, without discrimination and for reasonable pay.”
We cannot be insensible to the fact that defendant is now doing substantially all of the carrying business between Sault Ste. Marie and Detour; that which the motor transport company may lawfully do under its permit. To all intents and purposes there has been no change in the nature of the business done by him after the last permit was refused, except that he sought to protect himself from a violation of the law by securing the contracts entered' into from his regular patrons and performing other services which might be called “errands” for customers. The law will not permit such an evasion of the intent and purpose of the statute. In People v. Carr, supra, wherein the defendants were prosecuted criminally for violating the act, this court said:
“Defendants had a right, in the prosecution of their taxicab service, to solicit business in their line at the village of Hart, and to carry patrons to Muskegon, or elsewhere, over the identical route served by the auto bus system operating under permit from the commission. They also had a right, upon request, to go to Muskegon to get patrons wanting their service to reach the village of Hart or be taken elsewhere, and, while so in Muskegon had a right to take any person, so requesting, to Hart or intermediate points. They could not, however, establish a service between Hart and Muskegon, or elsewhere, under schedule, or even intermittent, for the purpose of rendering a general auto bus service to the public, in competition with the auto bus service under State regulation, without a permit to do so from the commission. * * * Of course if the carriage of passengers is ‘but a subterfuge to avoid regulation and the privilege tax imposed by the act, then there is guilt.”
In Frost Trucking Co. v. Railroad Commission, 271 U. S. 583, 599 (46 Sup. Ct. 605, 47 A. L. R. 457), while holding that private carriers may not, by legislative fiat, be made common carriers under the California act, which provided for the regulation of such carriers, it was said:
“The court below seemed to think that, if the State may not subject the plaintiffs in error to the provisions of the act in respect of common carriers, it will be within the power of any carrier, by the simple device of making private contracts to an unlimited number, to secure all the privileges afforded common carriers without assuming any of their duties or obligations. It is enough to say that no such case is presented here; and we are not to be understood as challenging the power of the State, or of the railroad commission under the present statute, whenever it shall appear that a carrier, posing as a private carrier, is in substance and reality a common carrier, to so declare and regulate his or its operations accordingly.”
In Restivo v. Public Service Com’n, 149 Md. 30 (129 Atl. 884), the court said:
“It is difficult to determine with exactness just when the owner of a motor vehicle is operating as a common carrier, as that term is ordinarily understood in the law, but the courts have not been inclined to excuse the increasing number of those who earn their livelihood by transporting persons or goods for hire in motor vehicles, from the responsibilities of common carriers simply on technical grounds, and they have been particularly slow to excuse them when their plan of operation bore evidence of being a studied attempt to reap the rewards of common carriers without incurring the corresponding liabilities.”
And in Public Service Com’n v. Western Maryland Dairy, 150 Md. 641 (135 Atl. 136):
“The effort of the appellee to escape the supervision of the commission upon the grounds stated by it, is, we think, to say the least, an attempt to evade the statute, and it should be so treated. ’ ’
The effects of defendant’s operation are identical with those of common carriers. If he may, by entering into these contracts and conducting his business in the manner testified to by bim, relieve bimself from complying with the law requiring a permit, and from being placed in the class of common carriers, it will furnish an easy way to escape liability. He was engaged in the same business now conducted by him at the time the law became effective. He recognized its application thereto, and twice applied for a permit thereunder. He should not be permitted to evade the requirement of the statute as he is now doing.
The decree entered will be reversed, and one entered here as prayed for in the bill of complaint, with costs to plaintiff.
North, C. J., and Fead, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Potter, J., did not sit. | [
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Fead, C. J.
In March, 1920, plaintiff, as broker, negotiated a sale of property at Pontiac, known as the National block, .to defendants at the price of $382,500. Preliminary contract was executed and $10,000 paid thereon, followed by a formal land contract with additional down payment of $40,000. Defendants had difficulty in obtaining the $40,000 and plaintiff agreed to turn over to them his commission, or $10,000 of it, when received. Upon execution of the formal contract, he collected his commission and paid $10,000 to defendants. They gave him a receipt reading, “Received of Fred G. King, $10,000, as his interest in the National block.” Defendants commissioned plaintiff to sell the property, but he was not successful. Defendants carried the contract until May, 1923, when, being unable to sell, they surrendered it,
Plaintiff brought this suit in 1924 to recover from defendants the $10,000' he so had paid over to them. The first count of his declaration and his bill of particulars stated his theory that the transaction was a loan. The declaration also contained the common counts in assumpsit. Defendants ’ claim was that as defendants were not quite able to finance the pay-' menf of $40,000, and as plaintiff was not entitled to a commission until the formal contract was executed; plaintiff agreed to contribute his commission to the enterprise, to have a proportionate interest in the property, to take his share of the profits on resale, and upon that agreement he paid them the money.
When the proofs were closed, plaintiff moved for a directed verdict. The motion was reserved under the statute. The case was submitted to the jury on the sole theory that plaintiff could not recover unless the transaction was a loan. The jury found for the defendants. The court, on the reserved motion, later entered judgment for plaintiff notwithstanding the verdict, on the theory that defendants ’ claim of the transaction disclosed a contract void under the statute of frauds and the money paid thereunder was recoverable in the suit. Defendants' have set up only two assignments of error, (a) that the court erred in granting plaintiff’s motion for judgment notwithstanding the verdict, and (b) that the court erred in ordering and entering judgment for plaintiff notwithstanding the verdict.
In the circuit court, defendants conceded that their version of the transaction disclosed a contract which contemplated that plaintiff have an interest in real estate. • Being oral, the contract was void under the statute of frauds and .nloney paid thereon may be recovered under the common counts in assumpsit. Kuchenmeister v. Dusza, 218 Mich. 497. They con tend, however, that plaintiff, by his bill of particulars, was restricted to the theory of loan and he could not recover on the basis of defendants’ version of the transaction. If the bill of particulars was insufficient to support a verdict (see Murphy v. Dalton, 139 Mich. 79), this court may treat it as amended to cover . the proof made (Feiertag v. Feiertag, 73 Mich. 297).
Defendants further contend that, as the jury rejected plaintiff’s testimony that the transaction was a loan, he cannot now recover on a state of facts opposed to his own theory, citing Harlow v. Leclair, 82 N. H. 506 (136 Atl. 128, 50 A. L. R. 973). In that case it was held that where a party himself testified to facts about which he could not be mistaken and which, if proved, would defeat his cause of action, he cannot recover on the testimony contradicting him. The rule is not applicable here. The plaintiff was entitled to recover if the jury accepted his own claim of the facts. He was also entitled to recover if defendants’ version was approved. The finding of the jury had no effect upon the motion for judgment notwithstanding the verdict because the motion was made and must be considered on the situation as it existed before submission of the cause to the jury.
After judgment was entered this court handed down the opinion in Bresee v. Robinson, 236 Mich. 633. Defendants now claim that the agreement with plaintiff was not that he should have an interest in the real estate, but merely that he should have an interest in the profits on its sale, and, under the above decision, the contract was not within the statute of frauds. Assuming that their testimony was susceptible of such construction, at most it would have raised an issue of fact for the jury. The point was not presented to the circuit court at the trial, nor on the reserved motion after verdict. It is not covered by the assignments of error. No ruling thereon by the circuit court is here for review.
Defendants also urge that plaintiff was estopped from claiming benefit of the statute of frauds because he induced them to enter into the formal contract. Plaintiff denied defendants’ claim in this respect. The testimony was in dispute and raised a question for the jury. The point was not presented to the circuit court nor covered by the assignments of error. Defendants’ relief on matters which should have been presented to the jury must be found, if at all, in the circuit court.
The judgment is affirmed.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, J.
The petitioner, Ernest P. LaJoie, seeks to have determined the amount of his fee for professional services rendered to Charles H. LeBeau, herein called the .defendant, and to have the same declared to be a lien upon funds in the hands of the •receiver heretofore appointed in this cause. The facts involved in the main case will be found in Fannon v. LeBeau, 238 Mich. 376. LeBeau appealed from the decree entered in the circuit court in the original case. After the record had been prepared and filed in the Supreme Court, it developed that the attorney to whom LeBeau had looked to brief and present the case on appeal would not be able to do so because of ill health. Less than a week before the case was to be submitted to the Supreme Court, LeBeau asked the petitioner to prepare a brief and argue the appeal. At first the petitioner declined to undertake the task on the ground that there was not sufficient time within which to examine the rec-ord and prepare a brief; but upon being asked again on the following day the attorney decided he would accept the undertaking. By devoting' his time exclusively to this one matter and by working more than the usual hours per day, the petitioner succeeded in preparing the brief for the Supreme Court in about three days and it was printed and filed in time to preserve to the appellant the right of an oral argument in this court, and such.an argument was made in his behalf by the petitioner. After the announcement of a decision favorable to his client, the petitioner and LeBeau had some talk about the former’s compensation, and LeBeau was then told that the attorney proposed to charge him $5,000 for the services rendered. They were unable to agree, and thereupon this petition was filed. After a hearing in the circuit court,- the petitioner’s fee was fixed at $4,500, and an order entered that the same-should be a lien upon the funds in the hands of the receiver. LeBeau has appealed from this order, and insists:
(1) That the trial court was without power to decree the petitioner’s fee to be a lien upon the funds in the hands of the receiver, and
(2) That the amount of the fee awarded was .excessive.
1. Did the court have the right to decree the petitioner’s fee to be a lien upon the funds pos-, sessed by the receiver? It is rightly• stated in appellant’s brief:
“An attorney may have a special lien upon a fund in court or in the hands of a receiver, recovered, by him, and a court of equity having such funds in its possession, will protect the attorney in retaining out of it a reasonable compensation for his services.”
It is urged that the petitioner herein did not recover any portion of the funds in the hands of the receiver; but, instead, all of the assets of the receivership were in the possession of the receiver before the petitioner was identified with the case in any way. While this is true, under the decree rendered in the circuit court the receiver was holding assets in excess of $20,000 for the purpose of accounting to the adverse party in the original case. The exact amount claimed to be due him was in dispute, but it was admittedly in excess of $13,000. The trial judge stated in the opinion filed by him that the decision secured in the Supreme Court by the petitioner “resulted in realizing for the respondent between $15,000 and $16,000, which sum was otherwise lost to him. ” A further objection is urged that an attorney who is identified with a case as of counsel only has no right to a lien for services rendered. See 1 Jones on Liens (3d Ed.), §144; and Brown v. Mayor of New York, 9 Hun (N. Y.), 587. In the instant case we need not be concerned with the distinction sometimes made between an attorney regularly of record and one acting as counsel only in determining the right to a lien for services rendered, because the petitioner herein was in fact acting as the attorney of record for Mr. LeBeau. The latter admits that he “employed Ernest P. LaJoie * * * and that thereafter Ernest P. LaJoie did cause this petitioner’s brief to be prepared and filed in the Supreme Court and did thereafter argue the cause on the date it was submitted.”
“It is immaterial that an attorney, who claims a lien upon a judgment for his services, was styled upon the record as ‘of counsel’ merely, where it appears that he actively assisted in the preparation for and conduct of the trial.” (Syllabus) People, for use of Simon, v. Pack, 115 Mich. 669.
It is well settled in this State that courts of equity have the power to protect an attorney in securing his compensation by giving him a lien upon funds in the hands of a receiver. In Wipfler v. Warren, 163 Mich. 189, it is said:
“We have no doubt of the power of the court which made the original decree to so direct its receiver that the lien of the solicitor should not be impaired, and find no reason or authority for denying the power to determine upon the application of the fund owners the extent of the lien.”
2. The remaining question is the reasonableness or fairness of the amount of the attorney’s fee as determined by the circuit judge. The appellant is urging that the fee of $4,500 is excessive, considering the subject-matter of the litigation and -the amount of services rendered by the petitioner. The brief filed for LeBeau by the petitioner consisted of 23 pages 'and presented in the Supreme Court a question of fact only, that being the sole matter involved. We are aided by a record which discloses rather definitely the extent of the services rendered, the circumstances under which such services were performed, and the result obtained. Attorneys of high standing in the profession testified as to the amount which in their judgment would constitute reasonable compensation. The maximum figure was $5,000, while other testimony fixed fair compensation at $1,200 to $1,500. It appears from the record that the attorney first employed by LeBeau had agreed to write the brief and argue the case in the Supreme Court for $500. After a full consideration of the matter here presented, we are constrained to hold that the amount of the fee as fixed in the circuit court is more than should have been allowed; and we are of the opinion that it should be reduced to' $2,500, and that amount should be decreed to' be a lien upon the assets in the receiver’s hands. The appellant does not appear to have tendered any definite amount to the petitioner, and has denied the petitioner’s right to a lien, and therefore no costs will be awarded in this court.
Fead, C. J., and Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. Clark, J., did not sit. | [
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Potter, J.
Plaintiff sued defendant for damages for injuries resulting from hitting her with his automobile. There was judgment for defendant on directed verdict, and plaintiff brings error.
Plaintiff charges she was injured while crossing East Forest avenue in Muskegon, by defendant operating a Hudson sedan at an excessive rate of speed, without brakés and without lights, off the traveled portion of the highway, without his car being under control. Plaintiff claims she was in the exercise of due care and caution and without fault or negligence. The injury is alleged to have occurred October 23, 1926. Plaintiff, at the time of the accident, was about 57 years of age. The night plaintiff was in jured was dark and rainy and the pavement slippery.. There was no proof defendant was driving at an excessive rate of speed, without adequate brakes, or without lights, off the traveled portion of the road, and no evidence the injury occurred by reason of defendant’s wanton or wilful misconduct. Plaintiff, between 6 and 7 o’clock in the evening in question, saw, before she was about to cross the street in question, a truck going in the opposite direction from that defendant was driving. She crossed about when this truck passed and was struck by defendant’s car. She says she saw no car coming; she looked to see if there was any other ear coming after the truck passed her; she did not remember where she was when the car struck her; she could not see where she was on the pavement at the time she was struck; after the truck passed she started north and that was the last she remembered. She did not remember doing anything else but just started ahead — just went on north; she did not remember which way she looked and that she did not see any lights. The court directed- a verdict for defendant on the ground plaintiff was guilty of contributory negligence. In this we think he was correct. Plaintiff was in the full possession of all her faculties. Defendant was operating his car within, the speed limit, with the lights on. Plaintiff was not struck by the front of the car, but apparently by its side. If plaintiff failed to look to see if cars were coming, she was guilty of contributory negligence. If she looked and failed to see what was in plain sight, she was guilty of contributory negligence. If she went across the street heedlessly, without knowing where she was, and ran into defendant’s automobile, she was guilty .of contributory negligence. If she did not listen or did not hear defendant’s automobile by reason of carelessness and inattention, she was guilty of con- tributary negligence. Hutchins v. Sleigh Co., 61 Mich. 252; Bedell v. Berkey, 76 Mich. 435 (15 Am. St. Rep. 370); Ramsay v. C. K. Eddy & Sons, 123 Mich. 158; Steger v. Immen, 157 Mich. 494 (24 L. R. A. [N. S.] 246); Larned v. Vanderlinde, 165 Mich. 464; Leary v. Traction Co., 171 Mich. 365 (45 L. R. A. [N. S.] 359); Schock v. Cooling, 175 Mich. 313; Wilson v. Johnson, 195 Mich. 94; Hill v. Lappley, 199 Mich. 369; Quigley v. Yellow Taxicab Co., 225 Mich. 275; 29 Cyc. p. 513; 42 C. J. p. 1031; 45 C. J. p. 947.
As said in Quigley v. Yellow Taxicab Co., supra:
“There was no claim of incompetency due to age, sex, intelligence or physical infirmity. There was therefore no reason why a different or less degree of care should be required of her than of other persons of ordinary prudence. * * * The degree of care which she must exercise is ordinary care, such care as persons of ordinary prudence would use under similar circumstances. It is not to be measured by comparison with people of greater or less intelligence, but with people of ordinary intelligence. If she did not use ordinary care for her own safety she is not to be excused, on account of her age, because she was neither too young nor too old to be unappreciative of the dangers to which she was exposed. Nor is sex any excuse for her carelessness. * * * Hassenyer v. Railroad Co., 48 Mich. 205 (42 Am. Rep. 470).”
Under any theory of the ease presented, we think the trial court was correct, and the judgment is affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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North, C. J.
In the bill of complaint filed in this cause the plaintiff, Richard W. Nebel, is seeking an accounting from the defendants Thomas G. Sullivan, Marcella A. Sullivan, and Elizabeth Sullivan Pelton. The defendant Charles W. Harrah filed a cross-bill wherein he charges fraudulent misrepresentations by the defendant Thomas G. Sullivan, in consequence of which the defendant Charles W. Harrah seeks to have the transaction set aside out of which the plaintiff, Nebel, claims the profits arose incident to which he seeks an accounting. The relief sought in the cross-bill was granted in the circuit court to the defendant Harrah. The plaintiff and the three defendants first above named have appealed.
Hereinafter, Thomas G. Sullivan, who is the principal defendant, will be referred to as the defendant; and unless otherwise indicated in using the term defendants, reference will be made to Thomas G. Sul livan, Marcella A. Sullivan, and Elizabeth Sullivan Pelton. The facts involved in substance are as follows : At the inception of this transaction Thomas G-. -Sullivan was about 66 years of age, and for many years he had been engaged in the lumber business in the northern peninsula of Michigan. Marcella A. Sullivan and Elizabeth Sullivan Pelton are his daughters and are women of mature years. On October 23, 1919, Thomas G-. Sullivan entered into a contract to purchase what are known as the “Vincent lands” consisting of 2,413.35 acres at $10 per acre. He made a down payment of $133.50, leaving a balance of $24,000, of which $8,000 was to be paid January 10, 1920. Prior to the date last mentioned the defendant approached the plaintiff relative to the latter’s becoming jointly interested with bim in the purchase of this property, it being expected that they would be able to dispose of it in a comparatively short time at a substantial profit. These two men thereupon entered into a contract in writing which provided that in consideration of the plaintiff’s assistance in financing the proposition and in disposing of the land he should have a one-half interest in the land contract. Mr. Nebel arranged with the vendor of the Vincent lands that in consideration of the payment of interest on the purchase price to July 10, 1920, amounting to $720, an extension to the latter date within which to pay the first installment of $8,000 would be granted. Mr. Nebel advanced the $720 necessary to obtain this concession. Thereafter both the plaintiff and defendant made efforts to secure a purchaser for this property. A sale was not consummated within the six months’ period for which the extension was secured. However, the plaintiff claims he had secured a bona fide offer for this property of $16 per acre.
As the extension of time was about to expire which had been granted for the payment of the $8,000 (July 10,1920), the defendant again approached the plaintiff and the necessity of further financing the proposition was discussed. These parties disagree as to just what transpired between them. The plaintiff asserts that he was willing to continue to finance the proposition by advancing one-half the funds necessary on condition the defendant would do the same. The defendant claims the plaintiff refused to advance any more money to be used in the enterprise, and agreed that a third party might be taken in w]io would be allowed to share equally with the plaintiff and defendant in any profit that might be realized from the transaction. The defendant arranged with the vendor Vincent that, upon paying $720 as the semi-annual interest upon the unpaid purchase price, another extension of six months within which to make the payment of $8,000 would be granted. The defendant secured the money with which to make this interest payment, and it is claimed that this sum was obtained by him from his son Ernest Sullivan, in accordance with his understanding with the plaintiff that a third party might be taken in. The plaintiff denies there was any arrangement whatever contemplating the participation of a third party.
Prior to the arrangement for the second extension of time above noted, Mr. Sullivan had gotten into contact with the defendant and' cross-plaintiff, Charles W. Harrah, this having been brought about through an agent by the name of Wood, who was endeavoring to dispose of a steamship owned by Mr. Harrah and who had been informed by the defendant Sullivan that this boat, the “W. H. Wolf,” might be accepted as part payment in exchange for the lands which defendant had for sale. In the course of the negotiations it developed that Harrah would be interested in a larger acreage of timbered lands than that constituting the Vincent tract. Thereupon the defendant, without the knowledge of the plaintiff, secured an option on what is known as the ‘ ‘ Consolidated Lumber Company land, ’ ’ consisting of 1,502.03 acres. The price of this property was $7.15 per acre, making the total consideration $10,731.45. After some considerable negotiation and on the 14th day- of August, 1920, a contract was entered into between the defendant and the cross-plaintiff. whereby the Vincent lands and the Consolidated Lumber Company lands were sold to Mr. Harrah for $42 per acre, total price being $164,444. In part payment of the consideration Mr. Sullivan accepted the steamship “W. H. Wolf ” at a valuation of $100,000. He was paid $5,000 on the date of the transaction and $20,000 six days later, August 20, 1920. Before this suit was brought, the balance of the purchase price was paid excepting $19,444. By stipulation, four notes for this amount have been left in the possession of the First National Bank of Alger County to await the outcome of this litigation.
Concerning the steamer “W. H. Wolf,” involved herein, it should be stated that this was an old wooden boat said to have been built in 1887 or 1888. It obviously was out of date as a commercial craft, was in a bad state of repair, and of doubtful value. Beyond question, the $100,000 at which Mr. Harrah turned the boat over to Sullivan was out of all proportion to its actual value. In a supplemental finding made by the trial judge its value was fixed at $30,000. There is no occasion for our reviewing this determination, but we may say in passing that we are convinced that the amount so fixed was suffi ciently liberal. Instead of having the title of this boat transferred to himself, the defendant Sullivan had it transferred to his daughter Marcella A. Sullivan. Shortly thereafter an arrangement was made with a Mr. Edward H. Ho’rne, who had managed the boat for Mr. Harrah, that he should become a half owner thereof and continue as its manager. At the time title to the boat was transferred by Mr. Harrah it was insured for $85,000. Later this amount was increased to $100,000. In October, 1921, the boat was destroyed by fire, and $85,000 insurance was paid incident to this loss. By reason of repairs made, costs of operation, etc., there were outstanding charges in large amounts which had to be paid from the insurance; $10,000 of the insurance is said to have been paid to the captain of the boat; and Mr. Horne, by reason of being a part owner, shared in the insurance. The total amount received by Marcella A. Sullivan incident to her ownership of this boat is fixed at $24,650.
It is the claim of the cross-plaintiff that Thomas G-. Sullivan falsely and fraudulently represented to him that there were 7,000 feet of lumber per acre on this land, which was worth $6 per thousand, and that it was on this basis that the valuation of $42 per acre was reached. It is asserted that this representation was untrue both as to quantity and value; that Mr. Harrah did not know the falsity thereof; and that he believed and relied upon these representations of Mr. Sullivan in purchasing the timber on these lands. It is on this ground that the cross-plaintiff seeks to have the transaction rescinded. The defendant denies making the alleged false representations. The testimony on this phase of the case is voluminous; and contrary to the determination of the trial court, we are of the opinion that Mr. Harrah’s contention that he relied upon the alleged misrepresentations and was deceived and defrauded thereby is not sustained by the record in the case. We will not attempt to review the testimony in detail, but deem it sufficient to call attention to certain phases thereof. Mr. Harrah resided in the city of Detroit and is a man of very large experience in real estate transactions. For a number of years he has been engaged in promoting subdivisions in and about the city of Detroit. He testified he had promoted about 60 such subdivisions. On one occasion he was interested in the purchase of a tract of timber in Mississippi. On another he was a party to a transaction of large proportions incident to the purchase of lands and timber in Cuba. He took the pains to make a trip from Detroit to the northern peninsula, where this timber was located, for the purpose of making a personal investigation. While his investigation was rather superficial, none the less he was on the ground and had the opportunity of making such an examination as he saw fit. A man of his experience must have been well aware of the necessity of examining property of this character for the purpose of ascertaining value. That he did so understand and that he did so act are evidenced by the fact that he engaged the services of a timber cruiser by the name of Sweeney and sent him from Detroit to northern Michigan for the purpose of cruising these lands. This was done by Sweeney and a detailed report of- the result of his investigation made to Harrah before this transaction was closed. By that report Harrah was advised of the fact that instead of there being substantially 27,000,000' feet of lumber on these lands, as he claims was represented by Sullivan, Sweeney estimated the amount at 21,770,000 feet. An attempt is made in the record to show that Sullivan induced Sweeney to make an over-estimate of this timber. We are not' impressed with the showing made* in this regard; and it is rather strange if Sullivan were fraudulently inducing Sweeney to make a false report that he would be content with one which disclosed that Sullivan’s claim was excessive to the amount of 5,000,000 feet and upwards. Likewise the record discloses, notwithstanding his claim to the contrary, that Harrah did not rely upon the statement of .Sullivan as to the value of this timber. Instead, both he and his agent Wood made repeated inquiries as to value from a Mr. Scott who had had extensive experience and was dealing in property of this same character in the northern peninsula. We feel constrained to disagree with the trial judge wherein he found: ‘ ‘ That the representations made to Charles W- Harrah were the inducing cause for his entering into the contract of purchase. ’ ’ Instead, we are thoroughly convinced from this record that the inducing cause in consequence of which Mr. Harrah became the owner of this timber was that he possessed an ardent desire to unload at the price of $100,000 an antiquated wooden boat, which, under the same manager who had operated it for Harrah, seemed to be a liability rather than an asset. A careful consideration of this record brings the conviction that in this transaction neither Mr. Sullivan nor Mr. Harrah was depending on the other for guidance, but instead they were dealing with each other at arm’s length, each knowing these properties were being put into this transaction at excessive valuations. They had never met prior to these negotiations. Each relied upon and acted upon his own judgment in making this trade, and not upon the trade talk of the other. The cross-bill of Mr. Harrah should have been dismissed and the relief sought therein denied.
We still have for consideration the plaintiff’s 61aim for an accounting on the theory that he was a partner of Thomas G. Sullivan, or at least was interested in a joint enterprise which had to do with the sale of the Vincent lands, and that in consequence thereof he is entitled to one-half of the profits realized from that transaction. There is no material conflict in the testimony touching the circumstances preceding the advancement of $720 by Mr. Nebel and the execution of the agreement of January 10, 1920, between himself and the defendant, whereby it was agreed the latter “would give him (Nebel) a one-half interest in and to said land contract” under which Sullivan was purchasing the Vincent lands. Seriously conflicting testimony was given by and in behalf of the respective parties as to what happened or what was agreed upon between them just prior to July 10, 1920, when interest was again due and the extension of time within which the $8,000 was to be paid was about to expire.
As hereinbefore stated, the defendant claims he talked with the plaintiff, who suggested they secure a third party to advance $720 in payment of the semi-annual interest and thereby secure a second extension of time within which to pay 'the $8,000 on the Vincent contract; that plaintiff said he did not have the necessary funds and would be willing to divide the profits three ways if the proposed arrangement could be made; and that the defendant did thereupon secure from his son, Ernest Sullivan, $720, paid the interest, and secured the extension. The plaintiff says he told the defendant at the time: “If he could not sell these lands, I could,” referring to his opportunity to sell for $16 per acre. The defendant thought he could close the deal with Harrah within 30 days. Plaintiff says he told the defendant lie would put up dollar for dollar with him to carry the deal along, but denies there was any talk about getting a third party to advance the money and share in the profits. The negotiations with Harrah were all carried on by Sullivan. The deal was closed August 14, 1920. Two days later the defendant wrote plaintiff: “I feel I will close this trade this week.” It was already closed, $5,000 had been paid, and the title to the steamer “W. H. Wolf” transferred. On August 23, 1920, these parties met at St. Ignace, and there the plaintiff learned the land had been sold, and on the train going to Munising, where they resided, the defendant told him: “He had closed the deal at $32-per acre,” according to plaintiff’s testimony. As above indicated, the sale to Mr. Harrah was for $42 per acre. Plaintiff claims nothing was said about the steamer “W. H. Wolf” having been taken in part payment. He did not know of this until May 1,1923, when the information came to him at the trial of a case in the Federal court in Marquette involving in some manner the operation of the steamer “W. H. Wolf,” in which the Sullivans were interested. The day after these parties came from St. Ignace to Munising (August 24, 1920), the defendant gave the plaintiff a check for $4,000. When produced at the trial this check had written upon it: “In full to date settlement.” The plaintiff denies that the check bore this notation at the time he accepted it, and asserts that when Mr. Sullivan gave it to him nothing was said about its being plaintiff’s share, but, instead, that the details of the transaction' were to be settled later; and that there was thereafter talk of this character between the parties on frequent occasions. But the defendant claims that the words above quoted were on the check when delivered to the plaintiff, and that the plaintiff accepted it as his share of the profits, expressing himself as more than satisfied. The defendant’s claim that this check constituted a settlement in full is based upon the testimony of himself and his son George, to the following effect: That after defendant had secured the second extension of time on the Vincent contract he and his son George went to the plaintiff’s office, and there the defendant expressed to the plaintiff his dissatisfaction in consequence of the plaintiff’s having refused to put any more money into the deal, and complained that the defendant had been spending his time and money incident thereto, and that the plaintiff thereupon stated he could sell the Vincent land for $16 an acre, and the plaintiff made the defendant an offer to accept in satisfaction of his interest in the deal whenever the defendant might sell the Vincent property one-third of the profit on the basis of a sale at $16 per acre; and that this offer of the plaintiff was accepted by the defendant. This testimony is contradicted by the plaintiff.
It would serve no good purpose to detail the other testimony in the record bearing upon the controversy between these parties which arises from the defendant’s claim on the one hand that the plaintiff has been paid in full as above indicated, and the plaintiff’s contention on the other hand that he is entitled under the written agreement of January 10, 1920, to one-half the profits derived from this transaction. We have considered the record carefully and find it difficult to give credence to the defendant’s contention. Among incidents leading to this conclusion are the following: He carefully concealed from the plaintiff the actual consideration received from Harrah; he told him nothing at all definite about the steamer “W. H. Wolf;” he wrote plaintiff a letter stating: “I feel I will close this trade this week,” two days after it had already been closed; later he told the plaintiff (according to the latter’s testimony) that the lands were sold for $32 per acre, when in fact the undisputed evidence shows they were sold for $42 per acre, and also that $10,000 had been received on the purchase price, when in fact $25,000 had been paid; and, notwithstanding the plaintiff often approached the defendant relative thereto, the latter never gave a statement embodying the details of the transaction. Of course, the defendant claims the payment of $4,000 constituted a settlement in full by reason of the alleged agreement entered into between the parties in July, 1920; but even under this agreement the plaintiff was entitled to a detailed statement of the transaction so that he might ascertain whether $4,000 was the amount he was entitled to receive, assuming that defendant’s contention as to this subsequent agreement is correct. We are thoroughly in accord with the finding of the circuit judge wherein he stated: “The testimony shows that every artifice was indulged in by Thomas G. Sullivan to deceive Mr. Nebel.”
The plaintiff is entitled to an accounting, which should not be restricted by any apparent rights of the defendants Marcella A. Sullivan or Elizabeth Sullivan Pelton, because in so far as either of them has become possessed of the proceeds of this transaction or has benefited or profited thereby, she has done so without consideration and without right as against the plaintiff. The record discloses that the defendant’s bank account is carried in the names of his two daughters; that part of the money received from this transaction was used to pay off mortgages on property standing in the daughters’ names; that the four unpaid Harrah notes have been transferred to Marcella A. Sullivan, and title to the so-called Alger lands which were purchased with money received from Harrah is also in the name of Marcella A. Sullivan. The rights of these defendants in the particulars indicated are subordinate to the plaintiff’s right to an accounting.
Both plaintiff and defendants Sullivan agree that the record now before us does not contain all the information essential to a detailed and accurate accounting. It is doubtful if an absolutely accurate accounting can ever be effected between these parties, because no record has been made of many details incident to the transaction involved. The bill of complaint was filed over five years ago, and it would be fortunate for all concerned if their rights could be determined without further delay. If substantial justice can be so accomplished, the final result should be determined upon this record. We construe the agreement of January 10,1920, between the plaintiff and the defendant to give to the plaintiff the right to have one-half of the net profits derived from the sale of the timber on the Vincent’ lands. Under the circumstances of this case he is not entitled to share in that part of the profits which should be apportioned to the Consolidated Lumber Company’s property. The defendant found it necessary to include the Consolidated property in order to consummate the transaction with Harrah. This was to plaintiff’s advantage, as it resulted in a profitable sale of the Vincent property, which otherwise could not have been accomplished. Surely the plaintiff has no reason to complain, and he should not be allowed to profit by the sale of the timber on the Consolidated lands, in which he had absolutely no part, and which was accomplished without his knowl edge or the use of any of his funds. These two properties were put into the Harrah transaction at the same price per acre. The money received therefor should be apportioned according- to acreage, substantially 61% per cent, to the Vincent property, and 38% per cent, to the Consolidated Lumber Company property. The net profit cannot be determined accurately, but so far as the Vincent property is concerned it may be substantially determined as follows: Cost, including interest paid, $27,468.58. Exclusive of Harrah’s four unpaid notes aggregating $19,444, not including accrued interest, the defendant has received: (1) from the sale of the steamer “W. H. Wolf” approximately $24,650, and (2) cash from Harrah $45,000, making a total of $69,650; 62% per cent, of this total, or $42,834.75, was received from Harrah for the Vincent property. Deducting from this its cost of $27,468.58, we have the net profit received to date on the Vincent lands . as $15,366.17. One-half of this ($7,683.08) belongs to Mr. Nebel, but he has been paid $4,000, thus leaving his share of the paid-in profits on this parcel as $3,683.08. Defendant should account to the plaintiff for this amount with interest thereon at 5 per cent, per annum from August 14, 1920. Sixty-one and one-half per cent, of any amount hereafter collected on the four outstanding Harrah notes will be a further profit on the Vincent property, one-half of which will belong to the plaintiff. Unless counsel can agree upon some other plan, the collection of these notes or other disposition of them must be worked out through a receiver under the appointment ‘and control of the circuit court. For the purpose of satisfying the terms of the decree the plaintiff will have a lien upon all sums collected on the outstanding Harrah notes which otherwise would be due to tbe defendant; and he may also have a lien upon the interest of the defendants Sullivan in the so-called Alger lands which were purchased with money received from Mr. Harrah; and, if necessary, the plaintiff may be subrogated to the former rights of the mortgagees in the Munising property belonging to the Sullivans to the extent the mortgages were satisfied by funds received from Mr. Harrah incident to this transaction, the amount so used having been fixed in the decree entered in the circuit as $13,264.67.
A decree may be taken granting the relief herein-before indicated to the plaintiff and dismissing the cross-bill of the defendant Harrah. However, if upon settling the decree, it is made to appear that the method of accounting hereinbefore suggested does not work out substantially a correct result, provision will be made for remanding the case for an accounting. The appellants will have costs against the defendant Harrah, and the costs of the plaintiff may also be taxed against the defendants Sullivan.
Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. Fead, J., did not sit. | [
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Potter, J.
The Grand Rapids Electrotype Company, a Michigan corporation, a general creditor of the Powers-Tyson Corporation, a Delaware corporation, filed a bill against the Powers-Tyson Corporation claiming a receiver should be appointed to manage the defendant’s business, settle and collect its bills, and pay over the balance to defendant. The bill did not ask for a dissolution of the foreign corporation; did not claim plaintiff was a judgment creditor; and the .proceedings for a receiver were not ancillary to any other suit against defendant. The defendant filed an answer consenting to a receiver, and the court appointed a receiver for the Powers-Tyson Corporation. The Ostrander-Seymour Company intervened and sought to recover machinery held by the receiver of the Powers-Tyson Corporation, of which intervener claimed title. The receiver contends intervener is not entitled to recover because though there is a clause in the contract purporting to retain title in the Ostrander-Seymour Company, the instrument is a chattel mortgage, and, not having been filed in accordance with the statute, is voidable, and the Ostrander-Seymour Company is only a general creditor.
1. In People, ex rel. Port Huron, etc., R. Co., v. St. Clair Circuit Judge, 31 Mich. 456, it is said:
“The directors or other board of management of a corporation having general authority to manage its concerns, are vested by law with the only discretionary power that can exist in any one to carry on the corporate business; and such management cannot be assumed by a court of chancery, or vested in a receiver; neither can it be taken from the board, except under proceedings instituted to wind up the corporation under the statutes. 2 Comp. Laws 1871, chaps. 206 and -207.
‘ ‘ The appointment, ex parte, of a receiver to manage the corporate business, and the granting of an injunction in like manner on an interlocutory ex parte application, whereby the control of the business is taken from the directors, are more than irregular, and are absolutely void, as entirely beyond the power of the court; and are such an abuse as may be required to be corrected by mandamus.
“The nullity of such attempts to divest rights by interlocutory and ex parte orders was somewhat considered in People v. Simonson, 10 Mich. 335, and Salling v. Johnson, 25 Mich. 489. See, also, Barry v. Briggs, 22 Mich. 201.”
The bill of complaint conferred no jurisdiction on the court to appoint a receiver.
Many cases from other jurisdictions are cited to show the consent of the Powers-Tyson Corporation was effective to confer jurisdiction on the court to appoint a receiver. If the* facts set forth in the bill of complaint do not confer jurisdiction on the court to appoint a receiver, defendant’s consent does not confer it. A court is something more than an arbitrator chosen by agreement of the parties. It can act judicially only when it has jurisdiction of the subject-matter of the controversy; otherwise it acts prejudicially. Jurisdiction of the subject-matter cannot be given by consent, especially where the law has withheld it. Allen v. Carpenter, 15 Mich. 25; Kirkwood v. Hoxie, 95 Mich. 62 (35 Am. St. Rep. 549); Peninsular Savings Bank v. Ward, 118 Mich. 87; Hull v. Hull, 149 Mich. 500; Bradfield v. Bradfield, 154 Mich. 115 (129 Am. St. Rep. 468); Maslen v. Anderson, 163 Mich. 477; People v. Meloche, 186 Mich. 536.
The proceedings to appoint a receiver of the Powers-Tyson Corporation were without jurisdiction and void.
2. The contract between the Ostrander-Seymour Company and the Powers-Tyson Corporation provided :
“Upon default in the payment of either or any of said notes said Ostrander-Seymour Company, their successors or assigns, may commence suit upon the same which shall not be a waiver of the OstranderSeymour Company’s title to the said property, and the same may be retaken under this contract and said property held until judgment is obtained upon said notes when said property may be sold to satisfy such judgment and if there be any deficiency the same shall be valid claim against the undersigned; it being the intention of this obligation to give the said, The Ostrander-Seymour Company the option of two remedies, one to take the property and credit payment in full for use, wear and tear of said property, and the other, to foreclose a vendor’s lien by obtaining judgment and sale of the property.
* * * “it being expressly understood and agreed that the title to the said property shall under the circumstances remain in said Ostrander-Seymour Company, its successors or assigns, until all of said notes are cancelled and delivered up and said indebtedness paid in full.”
“Title cannot be retained and passed at the same time.” Thomas Spacing Machine Co. v. Central Trust Co., 223 Mich. 164, 169. See, also, Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15; In re Parkstone Apartment Co., 243 Mich. 401.
In Nelson v. Viergiver, 230 Mich. 38, it is said:
“A conditional sale contract may reserve to the seller two inconsistent rights. It may give him the election to sue upon the obligation to pay or to retalce possession of the property. He cannot, however, do both. If he 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. He cannot recover a judgment for the price while the title to the thing sold yet remains in him.”
In Burroughs Adding Machine Co. v. Wieselberg, supra, it is said:
“The right to retake the property, retain payments made, estimate wear and tear, compute damage and look to the buyer for deficiency in the agreed price is consonant only with remedies under instruments providing for security in the nature of a chattel mortgage; for in such a case the security is but an incident of a debt absolutely due from the buyer to the seller.”
It follows that the order dismissing intervener’s petition must be affirmed, with costs. | [
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Fead, C. J.
On July 28, 1924, Roy O’Keeffe had pro confesso decree of divorce from plaintiff herein. The decree provided:
“It is further ordered, adjudged and decreed, that the plaintiff, Roy O’Keeffe, shall pay to the defendant, Peggy Alfredia O ’Keeffe, 'the sum of fifteen hundred ($1,500) dollars, said sum to be paid at the rate of one hundred twenty-five ($125) dollars per month beginning on the 15th day of August, A. D. 1924, which sum shall be in lieu of her dower or dower interest in and to any property now owned by the said Roy O’Keeffe, or which he shall hereafter acquire, and shall be in full satisfaction of all claims that the said defendant may have in and to any property now owned by the said Roy O ’Kéeffe, or which he may hereafter acquire, and shall be in full satisfaction of any claims the said defendant, Peggy Alfredia 0 ’Keeffe, may hereafter have under and by virtue of the statutes of the State of Michigan. ’ ’
This provision was made in pursuance of a property settlement between the parties. O’Keeffe still owes $880 of the award. On November 29, 1927, plaintiff commenced proceedings against him for contempt in not paying the sum due. On return of order to show cause the court dismissed the order on the ground that the provision in the decree was not for payment of alimony, but was in lieu of dower rights. This action is mandamus to compel the court to set aside its order of dismissal.
The statute requires every decree of divorce to make provision in lieu of dower. 3 Comp. Laws 1915, § 11436. An order of court for payment of alimony, either permanent or temporary, is enforceable by proceedings for contempt. 3 Comp. Laws 1915, § 12268, subd. 5. Other orders for payment of money are not so enforceable unless by law execution for collection cannot be awarded. 3 Comp. Laws 1915, § 12268, subd. 5; Carnahan v. Carnahan, 143 Mich. 390; Jones v. Wayne Circuit Judge, 236 Mich. 313. Decrees of a court of chancery may be enforced by execution. 3 Comp. Laws 1915, § 12965.
Alimony is “the substitute for the common-law right of marital support.” West v. West, 241 Mich. 679. Permanent alimony has been defined as a provision for the support and maintenance of a wife out of her ■ husband’s estate during her lifetime, ordered by a court on decreeing a divorce. It is essentially a different thing from a division of property. Mesler v. Jackson Circuit Judge, 188 Mich. 195. It is also different from an award in lieu of dower. Thus, the court has power to revise and alter the amount of alimony allowed in a decree. • 3 Comp. Laws 1915, § 11417. But a provision in lieu of dower or on a property settlement is final and cannot be modified or altered except, of course, for fraud or other cause upon which any other final decree may be reviewed. Kutchai v. Kutchai, 233 Mich. 569. A final decree for general payment of money is a debt; for payment of alimony it is not. Toth v. Toth, 242 Mich. 23.
In Mesler v. Jackson Circuit Judge, supra, relied on by plaintiff, the wife obtained the decree. The settlement agreement was filed in the cause, referred to in the decree, and recited that it was a release of claims for support, alimony, counsel fees, etc. The purpose of the allowance made was not stated in the decree. The court held it was evidently an award of alimony and enforceable by contempt proceedings. The settlement agreement on file in the cause was properly taken into consideration, in construing the decree, under the rule that, where a decree is ambiguous or incomplete, the pleadings and record may be consulted in aid of construction. 21 C. J. p. 689.
Here no written agreement of settlement was filed. The parties have made affidavits in which they agreed that the provision was a settlement in full, but neither averred that it was support money. The proportion of payments to principal sum indicated a property settlement. The wife was defendant in the divorce suit. It is not usual for a defendant wife to be awarded alimony in a pro confesso decree. If the surrounding circumstances were open to consideration, they would not aid plaintiff.
Where a decree is complete and unambiguous in itself, extraneous matters cannot be resorted to for the purpose of giving it a meaning which its language, without such help, would not carry. 21 C. J. p. 690. This decree is complete and unambiguous. It plainly declares the award to be in lieu of dower and in satisfaction of property claims. It is not a decree for alimony. Execution can be decreed upon the award, and contempt proceedings will not lie for its enforcement. If the decree did not set up the true purpose of the settlement, the remedy is in direct proceedings for amendment.
The writ will be denied, with costs.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
Defendants gave plaintiff an option to purchase certain real estate in the county of Oakland. It provided for acceptance in writing by h specified date. It was not so accepted. This bill is filed for specific performance. Plaintiff’s counsel concede that “the provision must be complied with unless that form of acceptance is waived.”
It appears that on several occasions before the time for acceptance had expired the plaintiff tendered to the defendant Richard Muirhead the payment specified in the option to be made on the acceptance thereof and demanded a contract pursuant to its terms. Plaintiff testified that the only reason given by- Muirhead for his refusal to accept the money was that “they didn’t want to sell the farm.” Counsel contend that defendants’ “repudiation of the contract” for the reason stated constituted a waiver of its right to insist on a written acceptance. They rely on the holding in Crolius v. Lorge, 192 Wis. 130 (212 N. W. 253), and Jones v. Sowers, 204 Pa. 329 (54 Atl. 169), to sustain this contention. Without passing on defendants’ claim that these cases were not properly decided, it is sufficient to say that the holding in. the Grolius Case was predicated on the fact that after, parol acceptance the optionor at the request of the optionee delivered an abstract of title to the property and caused expense to be incurred in the examination thereof, and that in the Jones Case it appeared that the conduct of the optionor had been such as to indicate “that he intended to dispense with the requirement of a written notice.” It would seem that decision in those cases might more properly have rested upon the doctrine of equitable estoppel than on waiver. In our opinion defendants’ naked refusal to perform in no way relieved plaintiff from accepting the option according to its terms, and constituted neither a waiver of his rights thereunder nor an estoppel to insist thereon.
In James on Option Contracts, § 839, the author points out the distinction between an election to be bound by the option and acts in the performance thereof; that the latter—
“are merely matters of performance of the contract raised by the election, the sufficiency and timeliness of which are tested by the rules of law relating to the performance of contracts generally and not by the rules of law peculiar to the acceptance of offers.”
This distinction is also pointed out'in 27 R. C. L. p. 343, as follows:
“The fact that the'vendor before the time for exercising the option has expired gives notice that he will not comply with his contract does not excuse the other party from giving proper notice of his election to purchase and offering to comply with the terms of the option. The reason for this is that until the acceptance of an option in accordance with its terms, no contract of purchase exists, and the party giving the option is under no obligation to convey the property mentioned therein.”
We are in accord with the conclusion reached by the trial court that plaintiff did “not establish an enforceable contract which will entitle him to relief in a court of equity, ’ ’ and the decree dismissing the bill is affirmed, with costs to appellees.
Fead, C. J., and Noeth, Fellows, Wiest,. Claek, McDonald, and Pottee, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant to recover damages alleged to have been caused by defendant’s' negligent operation of an automobile. He claimed serious injury; that he was compelled to incur great expense for hospital bills, doctors’ services and nurse hire, and would continue to suffer from his injuries in the future so as to be prevented from attending to his business. On the trial it was conceded defendant was negligent. In this court, defendant concedes liability. The only question is whether- the court gave the jury proper instructions on the subject of - damages for future suffering. Defendant claims there is a distinction between the rule that such damages shall be reasonably probable, and the rule that they shall be reasonably certain to result from the injury complained of. It is contended in this case, before such damages for future pain and suffering may be recovered, it is necessary the jury be satisfied to á reasonable certainty they would result from the injury sustained. Brininstool v. Railways Co., 157 Mich. 172; Marshall v. Railroad Co., 171 Mich. 180; Kethledge v. City of Petoskey, 179 Mich. 301; Matthews v. Lamberton, 184 Mich. 493; Norris v. Railway, 193 Mich. 578; Laskowski v. People’s Ice Co., 203 Mich. 186 (2 A. L. R. 586); Main v. Railway Co., 207 Mich. 473. The court charged the jury they could consider damages for future pain and suffering,
“If you find that his injury is incurable, and that the same will continue throughout the plaintiff’s life, so that he will continue to suffer pain from the same * * * you should determine from the testimony whether you are convinced by a preponderance of the testimony that his injury is permanent; then, if so, what pain and suffering will result in the future from it, if any, and if it will go into the future, then allow for it.”
The defendant contends this court has defined ‘ ‘ preponderance of evidence ’ ’ as that which indicates the greater probability in favor of the party upon whom the burden rests (Hoffman v. Loud, 111 Mich. 156; Cline v. Studebaker Corp., 189 Mich. 514 [L. R. A. 1916 C, 1139]); and, therefore, the charge of the court amounted to no more than stating the rule of reasonable probability which Kethledge v. City of Petoskey, supra; Norris v. Railway, supra, and Laskowski v. People’s Ice Co., supra, held erroneous. It was not necessary to charge in the precise language contended for by defendant. King v. Neller, 228 Mich. 15; Tabor v. Carey & Leach Bus Lines, 242 Mich. 9. The court charged that the burden of proof was upon plaintiff, and, before damages for future pain and suffering could be awarded, the jury must be satisfied by a preponderance of the evidence plaintiff suffered such permanent injury and would continue to suffer for the same.
There are but two rules of evidence so far as its weight and sufficiency are concerned. The one applicable to criminal cases and the other to civil cases. This was declared in Peoples v. Evening News Ass’n, 51 Mich. 11, and has not been departed from. See, also, Hoffman v. Loud, supra; Walsh v. Taitt, 142 Mich. 127; Carpenter v. Lennane, 166 Mich. 610; Fitch v. Vatter, 143 Mich. 568; Worden Lumber Co. v. Railway Co., 168 Mich. 77; Silverstone v. Assurance Corp., 176 Mich. 525; Thomas v. Miller, 202 Mich. 43; Hetfield v. Mortimer, 236 Mich. 214. The jury was not permitted to guess at a verdict. Baird v. Abbey, 73 Mich. 347; Hoffman v. Loud, supra; Strand v. Railway Co., 67 Mich. 380. They were not, under the charge given, warranted in finding a fact established by a greater probability unless the evidence satisfied them' the fact existed. Dunbar v. McGill, 64 Mich. 676; Strand v. Railway Co., supra; Dupuis v. Traction Co., 146 Mich. 151; Gardiner v. Courtright, 165 Mich. 54; Niemann v. Niemann, 225 Mich. 365. The charge to the jury was that they must find as a fact the existence of incurable injury and a continuation of pain and suffering, and by a preponderance of the testimony, before they could consider it in awarding damages. This was sufficient.
Judgment affirmed, with costs to plaintiff.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Potter, J.
(dissenting). Wanda Hintz, petitioner’s wife, filed a bill for divorce against him in the circuit court for Wayne county, in chancery. He filed an answer and cross-bill. A motion for temporary alimony was made by the wife. The affidavit in support of the motion for temporary alimony alleges defendant to be a strong, able-bodied man, with an income from real estate collections of $3,000 and upwards a month, $100 a week from a confectionery business, and alleges he owns 90 per cent, of the Telegraph Park subdivision, valued at $225,000. The affidavit shows plaintiff, in the divorce case, in straightened circumstances. Petitioner, in opposition to this motion, presented an answer denying the amount of collections from real estate, alleging he was to receive by contract $734 a month and that he actually received but $265 a month. He denies he ever received anything from his interest in the confectionery store, denies the value of the Telegraph Park subdivision, and sets up a schedule of indebtedness he has succeeded in accumulating. The matter was referred to the friend of the court, and the circuit judge, upon hearing the motion, made an order requiring defendant therein to pay $12 a week for the support of the plaintiff and $35 attorneys’ fee? and to make all payments to properly finance all arrearage on the premises occupied by plaintiff. Defendant brings mandamus to set aside the order made by the circuit judge.
Temporary alimony is based upon the common-law obligation of the husband to support his wife. Story v. Story, Walk. Ch. 421; Goldsmith v. Goldsmith, 6 Mich. 285; Bialy v. Bialy, 167 Mich. 559 (Ann. Cas. 1913 A, 800); Van Dommelen v. Van Dommelen, 218 Mich. 149. It rests in the sound discretion of the court (Jordan v. Westerman, 62 Mich. 170 [4 Am. St. Rep. 836]; Rossman v. Rossman, 62 Mich. 429); and the findings of the chancellor will not be disturbed (Haines v. Haines, 35 Mich. 138), except for a clear abuse of discretion. 19 C. J. p. 229. Temporary alimony is based not more upon the husband’s ability to contribute, than upon the wife’s necessities. The allowance for temporary alimony and solicitor’s fees herein was within the discretion of the court. The property which the defendant in the divorce case was ordered to finance was owned by the parties as tenants by the entirety and was valued at $30,000. It was the home, and should be preserved pending the determination of the divorce case. The court, at the conclusion of that case, has authority by decree to determine the rights of the respective parties in this property. Notice of forfeiture had been served upon both parties to the divorce case, and proceedings were threatened to foreclose the land contract under which it was being purchased. It was the duty of the husband to provide his wife with food, clothing, and shelter, — with a home, during the time the marriage relation existed between them, and when by answer and cross-bill he appealed to the conscience of the chancellor for relief of a permanent nature, he must do equity as a condition of receiving it. The action of the circuit judge in compelling defendant in the divorce case, who is petitioner here, to keep up the payments upon the home property so as to prevent the loss thereof, was within his discretion. The writ should be denied, with costs.
Fead and Clark, JJ., concurred with Potter, J.
Wiest, J.
The part of the order for temporary alimony requiring defendant “to make all payments and properly finance all arrearages upon the premises occupied by plaintiff” was in excess of power in the court and a nullity.
We are advised by the record that it will require the sum of upward of $5,000 to finance such property against immediate existing grounds of forfeiture and loss
Judicial power to decree divorce and all interlocutory proceedings, inclusive of temporary alimony, expense money, and counsel fees, is purely statutory, and the ordinary principles of equity jurisdiction do not obtain. That the power is strictly statutory, see Maslen v. Anderson, 163 Mich. 477; Heck v. Bailey, 204 Mich. 54. As stated by Mr. Justice Potter in Ritzer v. Ritzer, 243 Mich. 406:
“The power to award alimony is wholly statutory. ’ ’
No statute vests power in the court to direct or compel the husband, by interlocutory order, to pay out money to conserve his property rights or those of his wife.
The writ will issue directing the circuit judge to set aside the part of the order we hold null and void. No costs.
North, C. J., and Fellows, McDonald, and Sharpe, JJ., concurred with Wiest, J. | [
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McDonald, J.
This suit was brought to recover money invested by the plaintiff in a partnership business which she claims she was induced to enter by fraudulent representations of the defendant. The defendant was engaged in a wholesale candy business in the city of Detroit, Michigan. On July 1, 1920, he entered into a partnership agreement with the plaintiff whereby she was to have a half interest in the business for $15,000. The partnership continued until May 25, 1921, when, by mutual consent,. it was dissolved and a bill of sale was executed transferring the business to the Curts Candy Corporation. For their respective partnership interests, each partner was to receive 9,500 shares of common stock and 2,000 shares which were to be held jointly. The corporation went into bankruptcy in May, 1922. The plaintiff says that in December, 1921, she first learned that she had been fraudulently induced to enter into the partnership agreement. She demanded a return of her money, but did not get it. On March 17, 1922, she began suit against the defendant by capias ad respondendum to recover damages for fraud and deceit. On March 29, 1922, by stipulation an order was entered quashing the capias. The case stood without further action until. May 19,1923, when the present counsel for the plaintiff appeared and filed a motion to amend the declaration. Over the objection of defendant’s counsel, the court permitted an amendment setting forth a cause of action based on a rescission of the contract. On this theory the cause was tried. At the conclusion of the case, the defendant moved for a directed verdict, and, in addition to other grounds, urged that the plaintiff could not recover on her amended declaration, the theory of which was rescission, after having filed the original declaration on the theory of affirmance. The court reserved a ruling on the motion under the statute and submitted the case to the jury. Plaintiff received a verdict of $11,802.03. On motion, the court entered a judgment'for the defendant non obstante veredicto. The plaintiff has brought error.
As we are of the opinion that the plaintiff cannot recover on her amended declaration, it will not be necessary to discuss other questions presented by the record. "When the plaintiff discovered the fraud, she had a choice of two inconsistent and independent remedies. First, she could affirm the contract and sue for damages occasioned by the fraud; or second, she could rescind it and bring an action to recover the money which she had paid. She chose the first. She began suit by capias, and in both her affidavit and declaration alleged that she had an action for damages for fraud and deceit. Subsequently the writ was quashed by stipulation. Nothing further was done with the suit until more than a year later, when the amended declaration wras filed on the theory of rescission. There was no mistake in the remedy first chosen. There was nothing to prevent a prosecution of her suit for damages on the theory of affirmance. She chose that remedy with full knowledge of the facts, and in so doing irrevocably fixed the status of her rights. She could not thereafter rescind the contract. It was no longer voidable. Thomas v. Watt, 104 Mich. 201; Cooper v. Smith, 109 Mich. 458; Mintz v. Jacob, 163 Mich. 280; Weiss v. Stein, 209 Mich. 482; 35 A. L. R. 1153-1163, notes.
The judgment of the circuit court is affirmed, with costs to the defendant.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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North, J.
August Alex, who was a deaf mute from early childhood, died intestate at the age of 62 years, leaving an estate of $6,449.63. Over 20 years before his death he was adjudicated mentally incompetent, and during the, last 11 or 12 years of his life his brother, Herman Alex, one of the defendants, acted as his guardian under an appointment of the probate court of Alpena county. The two plaintiffs are sisters of Herman and August Alex. The defendant Amelia Shubert is referred to in the record as a half sister of the deceased; and by agreement between these litigants, her interests are not to be affected by the outcome of this suit. On April 23, 1927, five days after August died, Herman filed a petition for appointment- as administrator of his brother’s estate. On the 28th day of April, 1927, he filed his final account as guardian. This account was accepted, but the guardian was not discharged. Herman was appointed administrator of his brother’s estate May 19, 1927. The plaintiffs entered into an arrangement with their brother Herman whereby each of them in consideration of $500 paid to her by Herman assigned to him all her interest in the estate of the deceased brother. One of these assignments was acknowledged April 29, 1927, and the other May 3, 1927. By their bill of complaint the plaintiffs seek a cancellation of their assignments to Herman on the ground of “misrepresentation, fraud and deceit.” They claim they had no knowledge of the amount of the estate left by August, and that Herman would not tell them the amount of the same, but “intimated” it was small, and that $500 was a “fair share” for each sister; and unless that amount was accepted the estate would be handled in such a manner that the plaintiffs would get nothing. It is alleged in the bill that the plaintiffs were without business experience, that they acted without counsel and believed the statements of their brother, and that, relying upon his statements, they accepted the sum of money which was much less than their respective shares of the estate. The alleged misrepresentations and threatening statements are denied by the defendant Herman Alex. The plaintiffs had a decree in the circuit, and Herman Alex has appealed.
Referring to the alleged misrepresentations, the circuit judge said:
“I do not believe he made them. On the other hand it is conceded he did not state'to them (the plaintiffs) the amount of their brother’s estate. I think he should have done so fully. He was a trustee of his brother’s property during his guardian ship, and at his death he became a trustee of the same with the heirs-at-law as beneficiaries.”
In appellant’s brief it is stated:
‘ ‘ There is only one legal question involved in this case: Was there a fiduciary relation existing between the plaintiffs and Herman Alex at the time he made the settlement with plaintiffs and acquired their interest in their brother’s estate. If such fiduciary relation actually existed as a matter of law, the settlement should be set aside for it is not claimed by Herman that he did affirmatively disclose to plaintiffs the extent of the property in the estate. He explains this omission by stating that he supposed plaintiffs knew the extent of the deceased brother’s estate and that it was not necessary for him to tell plaintiffs.”
In behalf of the appellant the following is urged:
“It is the theory of defendants that the fiduciary relation existing between the guardian and ward terminated upon the death of August Alex; that Herman Alex was liable to account to the proper persons or court after the fiduciary relationship had been terminated, but the right to an accounting is not evidence of the existence of a fiduciary relationship. * * *
“In short, it is defendant’s contention that the fiduciary relationship between guardian and ward is a personal one and ends with the death of the ward, and it is something separate, distinct and different from the continuing obligation of the person who was formerly guardian to account to a court or persons.”
We cannot accept this restricted interpretation of the law relative to the duties of one who acts in a fiduciary capacity as did the appellant. In a technical sense it is true that the relation of guardian and ward was terminated by the death of August Alex; but the duties of the guardian who had been intrusted with the estate of the incompetent were not fully discharged until he had accounted for the assets of his ward’s estate. Purchasing and taking an assignment of the respective rights of those who had an interest in the estate was nothing more than a method of settling. In doing this he was bound to exercise the utmost good faith and was not justified in withholding any information concerning his trust and thereby profiting at the expense of those for whose benefit the estate was then held.
The duty which this guardian owed to these plaintiffs was not unlike the duty imposed by law upon a guardian to act in the utmost good faith in accounting for the estate of a minor after the ward becomes of age. Upon attaining his majority the disability of the ward is removed and except for the accounting the guardianship is terminated ipso facto. Tate v. Stevenson, 55 Mich. 320. But the duty to fully disclose and truly account for the assets of the trust estate still exists notwithstanding the ward is sui juris. This duty is an attribute of the' trust and binds the trustee until he has accounted and is discharged. Upon the death of August Alex these plaintiffs became possessed of a beneficial interest in the trust estate, and they were entitled to a full and fair disclosure and accounting incident to the estate held by the guardian. It is self-evident that during the years he had acted as guardian Herman Alex acquired a knowledge of the trust estate which was superior to that possessed by his sisters. He was still holding the property as a guardian while awaiting his appointment as administrator of the estate of his deceased ward. There was imposed upon him the duty of dealing fairly with his sisters in closing the estate. He failed to do this, and instead he knowingly took an unfair advantage of their inexperience and lack of information, and purchased their shares in his ward’s estate at one-third or one-fourth their actual value. They are entitled to equitable relief.
“If a .person obtains the legal title to property * * * by virtue of a confidential relation and influence under such circumstances that he ought not, according to the rules of equity and good conscience as administered in chancery, to hold and enjoy the beneficial interest of the property, courts of equity, in order to administer complete justice between the parties, will raise a trust by construction out of such circumstances or relations; and this trust they will fasten upon the conscience of the offending party and will convert him into a trustee of the legal title, and order him to hold it or to execute the trust in such manner as to protect the rights of the defrauded party and promote the safety and interests of society. Such trusts are called constructive trusts.” 1 Perry on Trusts (6th Ed.), p. 261.
“Trustees cannot use'their relations to the trust property for their personal advantage.” Id. p. 353.
See, also, Ellicott v. Chamberlin, 38 N. J. Eq. 604 (48 Am. Rep. 327); Morris v. Vyse, 154 Mich. 253 (129 Am. St. Rep. 472); and Weir v. Union Trust Co., 188 Mich. 452.
The decree of the lower court is affirmed, with costs to the appellees.
Fead, O. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
(after stating the facts). It cannot be questioned since John Hancock Mutual Life Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), that in this State a court of equity has jurisdiction to cancel an outstanding insurance policy where grounds for equitable relief are present. Appellants’ counsel do not question such jurisdiction, nor do they deny the general rule that a court of equity having assumed jurisdiction will retain it to settle the entire controversy, to do justice to the parties. They insist that such rule is not applicable where the matter in controversy between the parties is" wholly independent, as it is here, of the matter which gave the court jurisdiction, %. e., the matter alleged in the bill. So far as we have been able to ascertain, the textwriters and courts sustain this contention. In 10 E. C. L. p. 374, it is said:
“Furthermore, it may be said that while the doctrine that equity having jurisdiction for one purpose disposes of all matters involved in the case, though some be of legal cognizance, is generally true where the rights concerned arise out of the same transaction, nevertheless it has no application where the rights involved grow out of other .contracts or-independent transactions.”
In 21 C. J. p. 148, the rule is thus stated:
“The doctrine of retaining jurisdiction to settle the entire controversy is confined to the determination of rights dependent upon, or at least germane to, the subject-matter and main purpose of the bill. Jurisdiction will not be retained to adjust independent controversies between the parties, or controversies beyond the scope of that raised by the bill.”
In Poe v. Insurance Co., 126 Md. 520 (95 Atl. 164), it is held (quoting from the syllabus):
“The doctrine that equity will retain jurisdiction to settle the entire controversy is confined to the determination of rights dependent upon or germane to the subject-matters and main purposes of the bill. Jurisdiction will not be retained to adjust independent controversies between the parties, or controversies beyond the scope of that raised by the bill.”
In Haggins’s Heirs v. Peck, 10 B. Mon. (Ky.) 210, it was said by the court:
“It does not follow because a court of equity has jurisdiction of one matter of controversy between parties, that, therefore, it may proceed, for the purpose of putting an end to litigation, to take cognizance of all matters of controversy between the same parties, whether legal or equitable.”
See, also, Deepwater Co. v. Motter & Co., 60 W. Va. 55 (53 S. E. 705, 116 Am. St. Rep. 873); Fulton v. Fisher, 239 Mo. 116 (143 S. W. 438); Lodor v. McGovern, 48 N. J. Eq. 275 (22 Atl. 199, 27 Am. St. Rep. 446); Harris v. Smith, 133 Ark. 250 (202 S. W. 244); Hooe v. Harrison, 11 Ala. 499; 116 Am. St. Rep. 877, note; 1 Pomeroy, Equity Jurisprudence (3d Ed.), § 237.
Courts of equity are not provided with the necessary machinery to try the ordinary tort case. Parties to such actions are entitled to a trial by jury. The fact that such parties may have disputes properly cognizable by a court of equity does not draw to such court jurisdiction of independent controversies. Let us illustrate: “A” had a policy of accident insurance in “B” insurance company. “A” receives personal injuries by an automobile owned by the “B” insurance company and negligently operated by its agent. “A” claims that he is entitled to recover on his policy of insurance and also to recover in an action of tort for the negligent operation of the insurance company’s car. Could it be successfully contended that the “B” insurance company by filing a bill to cancel the policy of insurance on the ground of fraud could and would thereby draw to the chancery court jurisdiction to try and determine the personal injury case upon the theory that the court of equity having acquired jurisdiction would retain it to settle all disputes between the parties? Manifestly not. The asking of the question furnishes its answer.
So far as the decree cancels the insurance policy, it is affirmed. So far as it decides the facts involved in the Gratiot county case and restrains its further prosecution, it is reversed. Appellants will have costs.
North, O. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, J.
October 26, 1926, plaintiff sold defendant certain premises on land contract. February 21, 1927, defendant was in default and plaintiff gave notice of forfeiture of the contract. Defendant paid up, later again became in default in payments, and on May 19,1927, plaintiff gave it another notice of forfeiture. There is no claim that the notice was not sufficient nor effective. Nothing further was done by either party until July 23, 1927, when plaintiff filed this bill for foreclosure of contract, praying sale of the premises and deficiency decree. Under the contract defendant had right of possession of the premises, but it had no actual possession as the property was vacant. The contract contained the usual provision that on default of the vendee the vendor had the right to declare the contract void, retain moneys paid and improvements, and retake possession. Defendant concedes plaintiff’s right to take possession. Plaintiff had decree of foreclosure and for deficiency.
Having so declared forfeiture, can plaintiff maintain this action? On vendee’s default in a land contract containing the usual forfeiture clause, vendor may treat the contract as continuing in force and sue at law upon it for payments due or bring action in equity for foreclosure of the vendor’s lien and deficiency decree; or he may declare it forfeited. Ejectment or summary proceedings to regain possession are no part of forfeiture. Crenshaw v. Granet, 237 Mich. 367. The purpose and effect of a valid declaration of forfeiture are to end the contract and discharge vendor of the duty to convey and vendee of duty to pay. Consequently, after forfeiture, action at law will not lie for recovery of any part of the purchase price. Goodspeed v. Dean, 12 Mich. 352; L. R. A. 1916 C, 893, note. By the same token, suit in equity for foreclosure and deficiency decree cannot be maintained.
“If the vendor exercises his option to declare the contract at an end, he cannot change his position and thereafter hold the purchaser liable to complete the purchase or pay any part of the unpaid purchase money. . The remedy of the vendor by way of a cancellation of the contract and the continued liability of the purchaser for the purchase money are totally inconsistent, and the exercise of the former termi nates any further liability of the purchaser for the purchase money.” 27'E. C. L. p. 666.
However, forfeiture may be waived. Krell v. Cohen, 214 Mich. 590. Commencement of suit for foreclosure of vendor’s lien is a waiver by vendor of prior forfeiture. Old Second National Bank v. Savings Bank, 115 Mich. 548. Plaintiff here leans heavily upon the latter authority. But in that case the vendee made claim of waiver and vendor relied upon the forfeiture. Here the positions of the parties are reversed. Vendee claims the forfeiture as continuing and vendor asserts it was waived and the contract reinstated by commencement of this action. Waiver is a relinquishment, not a conservation of rights. It prevents, not permits, assumption of and choice between inconsistent positions. It would be a novel and unjustifiable extension of the doctrine of waiver to permit a vendor to forfeit a land contract, discharge the obligations of both himself and the vendee, and, at a future time when the exigencies might work in his favor thereby, reinstate the contract and its liabilities by his own act, without the consent or acquiescence of the vendee.
A court of equity will sometimes relieve a vendee against forfeiture where his default has been merely in the payment of money and his general conduct has not been such as to render it unjust that he should be relieved. Lozon v. McKay, 203 Mich. 364. Defendant does not ask reinstatement of the contract nor offer to redeem. The forfeiture is effective.
The decree will be set aside and one entered dismissing the bill, with costs of both courts to defendant.
North, C. J., and Fellows, Wiest, Clark,. McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
Plaintiff, an unmarried woman, 42 years of age, had been employed as saleswoman in stores for nearly 20 years, the last 4 years in the store of defendants Simkins and Stoll, trading as Specialty Dry Goods Shoppe, in Grand Rapids. Defendant employers, suspecting that plaintiff was stealing from the store, became watchful, and in that had some assistance from other employees. The other defendants, detectives, were engaged. Finally, plaintiff was told by defendants the results of their efforts and observations. She signed a writing, called a confession, settled the claim of her employers for $3,000, and paid the charges of the detectives, $1,000. Further investigation convinced the employers that they had settled too cheaply. Plaintiff was asked to pay more. She .gave her note for $2,500, secured by collateral. She commenced this suit to recover back what she had paid, averring that she had stolen nothing, and that the settlement had been produced by duress. She also claimed damages for false imprisonment. The defendant detectives aided in bringing abont tbe first settlement. Toward tbe close of proof, the trial court having the opinion that the detectives were not connected with the second settlement, and plaintiff’s counsel also, it seems, coming to that opinion, the matter of the second settlement was withdrawn from the case. The case went to the jury on the averments relating to the first settlement and to false imprisonment. Plaintiff had verdict and judgment for $6,591.66. Defendants bring error.
The decisive question is that the verdict is against the great weight of the evidence. Plaintiff’s case for the jury was made by her own testimony, with very little corroboration. Her testimony is seriously challenged in important particulars. We speak of but three of them. She said that the written confession, so-called, had been greatly altered after she had signed it, and she made a pencil mark on the paper to indicate the extent of the alteration. .An examination of the document itself and a consideration of the circumstances and the testimony of the other witnesses in respect to it are very convincing that plaintiff’s testimony in this regard is not true. Her testimony of harsh and threatening conduct of the detectives just before making the confession is against the circumstances and against the convincing testimony of many other witnesses. Witnesses testified of purchasing goods, paying for them in money, of receiving a sales slip for but part of the purchases, not for all as the rules of the store required, and of observing that plaintiff rang up on the cash register but that part of the amount paid which corresponded to the sales slip. The goods actually delivered to the witnesses, the cash register records respecting such sales, and the testimony of the witnesses is near to complete refutation of plaintiff’s testimony in that regard.
Plaintiff’s case then rests very largely on her own testimony, seriously challenged, if not discredited, and in some respects inconsistent and contradictory, and is met by the testimony of many witnesses, convincing and consistent in itself and with the circumstances. We conclude that the verdict is against the great weight of the evidence. Miller v. Railway, 200 Mich. 388.
A serious question is prejudicial argument of plaintiff’s counsel, but, in view of the conclusion reached, it calls for no discussion. Other questions, now well briefed and not difficult, are not likely to arise again, and are passed.
Judgment reversed. New trial granted. Costs to appellants.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
The plaintiffs’ claim is based upon an assignment to them of a contract entered into by the defendant Hagan to purchase a motor vehicle from F. J. Quinlan of Mt. Pleasant. It contained the following provision:
“It is agreed that the title to, ownership in, and right of possession of said chattel are vested in you and your assigns until said indebtedness and all other sums of money payable to you, whether evidenced by note, book account, or otherwise, also any judgments which you, your successors or assigns may obtain therefor, shall have been fully paid in money, at which time ownership shall pass to me.”
This instrument was not recorded. It seems to be conceded that if it be found to be a chattel mortgage, the action of the trial court in directing a verdict for the defendant Chase and entering judgment thereon should be affirmed. Under it the vendor retained title not only until the balance due on the contract was paid but until all other sums, however evidenced, which he then owed and any judgments obtained therefor were fully paid. Under it he might sue and obtain judgment and yet retain title. This provision clearly stamps it a security — a chattel mortgage, under the repeated decisions of this court. Among them are Young v. Phillips, 202 Mich. 480, and Nelson v. Viergiver, 230 Mich. 38. It cannot be said that the subsequent provisions change its nature.
That the contract between Quinlan and Hagan was void because Quinlan failed to comply with the mandatory requirements of the statute (section 3, Act No. 46, Pub. Acts 1921, as amended by Act No. 16, Pub. Acts 1923), as was pointed out in Endres v. Mara-Rickenbacker Co., 243 Mich. 5, admits of no doubt. As tbis question was not raised in tbe trial-court, we do not, however, rest decision upon it.
Tbe judgment is affirmed.
Dead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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McDonald, J.
The purpose of this suit was to restrain the defendants from erecting a store building on Livernois avenue in the city of Detroit in violation of building restrictions. The property is located in Robert Oakman’s Livernois and Oakman Highway subdivision which consists of 656 lots in the northeast corner of Livernois and Davison avenues. By deeds from the common grantor, all lots were restricted to residential purposes except three lots deeded to the Central Savings Bank and those fronting on La Belle avenue, which were intended for business use. The plaintiff owns lot 280 on Pasedena avenue, and the defendants own lot 408 on Livernois avenue. Both lots are restricted to residence use only. The validity of the restrictions is not questioned, but the defendants claim that there has been such a change on Livernois avenue that it would now be inequitable to enforce the restriction. On the hearing, the circuit judge entered a decree in which it was held that there had been no substantial change in the character of the lots on Livernois avenue, but that the plaintiff was not entitled to enforce the restriction because he had not shown that he would suffer any actual damages or inconvenience because of the store building.
There has been no material change on Livernois avenue since these residential restrictions were imposed. With three exceptions, all of the abutting property is still vacant. The only testimony of any change is as to traffic conditions on the street. It has become a busy thoroughfare, but that fact would not be sufficient to render the restrictions ineffective. There are two or three frame buildings on the east side of the street which are used for real estate offices. , The evidence shows that they are of a temporary character, such as are used in the development of outlying districts about rapidly. growing cities. How long they have been so used does not appear. However, they do not constitute such a departure from the restrictions as is contemplated by the defendants in the erection of a permanent brick store building.
The plaintiff’s lot is about 965 feet distant from the proposed building. It was the opinion of the trial court that he could not be affected by a violation of the building restrictions so far distant from his property. The restrictions imposed were according to a general plan and for the benefit of every lot in the subdivision. The plan has been uniformly followed. The record shows that as far as it has been developed the district is now made up- of fine residences costing from $10,000 to $19,000. Every lot owner in the subdivision has a right to maintain this residential character. Every lot owner has a right in the nature of a negative easement in every other lot. It is a valuable property right attached to his lot which he may enforce in equity regardless of the extent of his damages in case this right is invaded. -Under this doctrine of reciprocal negative easements, no lot owner can use his lot in any manner forbidden to the owners of other lots. Sanborn v. McLean, 233 Mich. 227.
As affecting the enforcement of this right, it is wholly immaterial to what extent any other lot owner may be injured by the forbidden use. This is because the restriction is a valuable property right to every lot owner in the subdivision on which it is imposed. In Allen v. City of Detroit, 167 Mich. 464 (36 L. R. A. [N. S.] 890), it was said:
“Building restrictions are ■ private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor.”
In the instant case, the plaintiff’s right to maintain the restrictions is not affected by the extent of the damages he might suffer for their violation. What this court said in Longton v. Stedman, 182 Mich. 405, 414, applies here:
“The restrictions in the deeds have been violated. The amount of damages complainants have suffered is wholly immaterial. Such restrictions will be enforced. 3 Pomeroy’s Equity Jurisprudence (2d Ed.), § 1342.”
The decree of the circuit court is reversed, with costs to the plaintiff, and a decree granted as prayed for in the bill.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
In October, 1925, the defendants Mr. and Mrs. Crook leased what is known as the Lucy Ann apartments in the city of Detroit, then owned by them, to Sherman U. Blake and Ida M. Blake, his wife, for the term of 10 years, at a rental of $680 per month. The Crooks left for California in November. They had been trying to dispose of the apartment building, and before leaving, in answer to an inquiry of Blake, Mr. Crook said they would sell it for $100,000 net to them. Blake at once set out to obtain a purchaser. Through a real estate agent, Frederick W. Leighton, he got in touch with Dr. Hall of the plaintiff company. Blake told Leigh-ton, and afterwards Dr. Hall, that he had an apartment fon exchange in which he had invested “in real cash” approximately $30,000, the income from which was about $1,200 per month.
The plaintiff was the equitable owner of a farm of 121 acres in Washtenaw county, the title to which, however, stood in the name of Ben Breitenwischer. The three of them went to look at this farm. Blake was unwilling to exchange his equity in the land contract for the farm. Dr. Hall, on behalf of the plaintiff, agreed to also convey 6 lots owned by the company in a subdivision adjoining the Washtenaw Country Club. A preliminary agreement embodying these provisions was executed on February 2, 1926. The deal was to be closed on February 15th. This agreement was signed by Breitenwischer. Blake’s consideration was stated therein to be $31,000, “My equity in Lucy Ann Apt., No. 1632 Gladstone avenue, Detroit, Michigan, subject to $94,000 approx.”
Pending these negotiations, Blake wrote Crook, Vt ho was still in California, telling him the nature of the deal he was making, and sent him for execution a land contract, dated October 15,1925, in which Crook and his wife agreed to sell the apartment property to the Blakes for $125,000, of which $30,000 was acknowledged to be then paid, and the balance in monthly instalments of not less than $750'. At the time of its execution, Crook, at Blake’s request, indorsed on it as received by. him the monthly payments due in November, December, and January following. Crook understood that Blake was to pay him but $6,000, which sum, together with the $94,000 unpaid upon the contract, amounted to the $100,000 he asked for the property. For this Blake was to secure the farm and the lots. This contract was not returned to Blake. It was sent by Crook to his son in Detroit and placed by him in the hands of an attorney, and there signed by the Blakes.
On February 24, 1926, Mr. and Mrs. Blake executed an assignment of this land contract to the plaintiff. On the following day, the deeds from Breitenwischer and his wife to Mr. and Mrs. Blake of the farm and from the plaintiff to them of the lots were placed on record and possession of the apartment building given to plaintiff. The contract and assignment thereof were not delivered to plaintiff until March 28, 1926. Blake represented that Crook held possession of the contract as a security for money owing to him, and after the record of the deeds to him he executed a mortgage on the farm to a bank at Manchester for $3,500, which was recorded on March 1, 1926. The check therefor was not delivered to Blake, but to the attorney for Crook. It also appears that Blake turned over other security to him to make up the $6,000 he had agreed to pay to Crook as a consideration for the land contract.
It was some time later that plaintiff learned that there had not been an actual sale of the property from the Crooks to the Blakes. Mr. Blake died on April 26,1926. In an interview sought by Dr. Hall. Mrs. Blake was uncertain whether her husband had paid the $30,000 to the Crooks. She made an affidavit at his solicitation, wherein she stated that ‘ ‘ she and her husband were not possessed of assets in the sum of thirty thousand ($30,000) dollars or any such sum as of October 15, 1925, or thereabouts.” She thereafter, however, sold the farm and lots, and they were at the time this suit was commenced in the hands of innocent'purchasers.
On August 4, 1926, the Crooks served notice of forfeiture of the land contract on the plaintiff, and on the same day plaintiff served notice of rescission of the contract and tendered an assignment thereof to Mr. Crook. The bill of complaint herein was filed on the next day. In it plaintiff prayed that the assignment of the land contract to it be decreed to have been procured by fraud, and that it be rescinded and canceled; that the threatened proceeding to forfeit the contract be enjoined; that the amount paid by it be decreed to be an equitable lien upon the apartment building, and for an injunction restraining the disposing of or incumbering the property, and for other relief.
Mr. and Mrs. Crook answered, and by way of cross-bill prayed for foreclosure of the contract. The bill was afterwards amended to state the facts later coming to the knowledge of plaintiff, as above stated. A decree was entered as prayed for in plaintiff’s amended bill, setting aside the contract and giving plaintiff a lien upon the building for $21,000, which the court found to be the fair value of the farm and lots conveyed to the Blakes. The defendants appeared by separate attorneys, and all of them appeal therefrom.
In view of the fact that Mrs. Blake had disposed of the property deeded by plaintiff before the commencement of this suit, the right of plaintiff to seek relief in a court of equity might be questioned. The parties, however, ask decision on the record as here made, for the reason that a proceeding to foreclose a mortgage on the apartment building property is now pending, and we have concluded to. do so. We make reference to it, however, in order that this case may not be considered as a precedent to secure the remedy sought.
Counsel for Mr. and Mrs. Crook does not defend the action of his clients in the execution of the land contract to the Blakes. He here contends :
(1) That the plaintiff was guilty of laches; and,
(2) That it was not defrauded.
1. Laches. It is urged that plaintiff connived at, if not encouraged, transfer of her property by Mrs. Blake, and that it delayed proceedings until that had been done and the parties could not be placed in statu quo in order to secure a money decree.
We have read the record tending to support this charge with care, and cannot find that it does so. Both Mrs. Blake and Dr. Hall make denial thereof. The deal was concluded on March 28, 1926. Dr. Hall testified that soon thereafter he was told that Mr. Crook had offered the apartment property for sale for $100,000. After an interview with Mrs. Blake, he secured the affidavit from her, above referred to, on May 18th. He submitted this affidavit to his attorney, and was advised that it did not furnish sufficient proof to justify a suit, and that he would better see Mr. Crook. In a talk with Crook over the telephone the latter said, in effect, that he had nothing to do with the deal made with Blake. The date of this conversation is not given, but it was probably in June, 1926. This suit was begun on August 5th of that year. Plaintiff was not at that time fully advised of the facts on which relief is now sought. The last amendment to the bill of complaint was filed on the second day of the trial. In the meantime, the deed from Mrs. Blake was recorded on May 24, 1926. There is nothing in the record to indicate that there was collusion between Dr. Hall -and Mrs. Blake, or that the former in what he did was not acting under the advice of reputable counsel. In Barron v. Myers, 146 Mich. 510, 514, it was said:
“The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. ’ ’
This statement was quoted with approval in Zadel v. Simon, 221 Mich. 180. See cases cited in the latter, and, also, Bailey v. Perkins, 224 Mich. 27.
The bill of complaint first filed is criticised, as is also the form of the notice of rescission. It is apparent that these were prepared by plaintiff’s .at torney, based on the information then communicated to him by Dr. Hall. The case should be disposed of on the record before the trial court at the time of the hearing.
2. Proof of Fraud. It is the claim of counsel for the defendants that the plaintiff was not defrauded; that Dr. Hall had not seen the Blake contract until after the deal was closed; that plaintiff placed no reliance on it, and knew that the $30,000 had not been paid thereon.
Blake’s purpose in securing the contract from Mr. and Mrs. Crook, wherein the purchase price was stated to be $125,000 and $30,000 was acknowledged to have been paid thereon, and certain monthly payments thereafter made, is apparent. He wanted to satisfy Dr. Hall that he had an equity in the property of $30,000 at the time it purported to have been executed in October, and that by the- indorsements thereon he had increased his equity to $31,000. While there is no direct proof that Dr. Hall saw this contract after it was executed by Mr. and Mrs. Crook and placed in the hands of their attorney, it cannot be doubted that he was informed of its contents. The deal was consummated on the understanding that Blake’s equity was $31,000, and not $30,000, as he had at first told Leighton. Dr. Hall understood that the reason the contract was not in Blake’s possession was that Crook insisted that a personal obligation of Blake’s, amounting to $6,000, must be paid before delivery, and that the mortgage was placed on the farm to assist in raising this amount. It was unfortunate that Mr. Blake had passed away before the trial. But on the record before us we cannot but say that there is a preponderance of evidence supporting plaintiff’s claim that it relied on the fact that Blake had entered into a contract to purchase the property, and that he had actually paid Crook $31,000 thereon.
It cannot well be said that if this fact be found plaintiff is not entitled to relief. While parties dealing with each other may indulge in “seller’s talk” as to the value of their respective properties, a false representation of a fact bearing thereon, relied upon by the purchaser, and which becomes an inducing cause of the contract made, is actionable on the ground of fraud. Pratt v. Allegan Circuit Judge, 177 Mich. 558. The holding in that case was cited with approval in the recent case of German Bundesheim Society v. Schmidt, 242 Mich. 139, and also in Merlau v. Kalamazoo Circuit Judge, 180 Mich. 393. In the latter case, one of the false representations relied on, and held to be actionable, was the statement of the defendant that he had sold the property on a land contract for $4,000 and received a payment of $1,500 thereon. Clearly, the plaintiff was entitled to relief against the estate of Mr. Blake and against Mrs. Blake.
While there probably was no intent to defraud on the part of Mr. Crook, his unwarranted action made it possible for Blake to perpetrate the fraud upon the plaintiff. He could but have understood that Blake wanted this contract for the purpose of satisfying the plaintiff that the oral statement theretofore made by him was true. In Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321, 324, it was said:
“Where one deliberately gives another a false statement in writing, knowing the purpose for which it is to be used, which that other uses to deceive a third party, he is a joint' wrong-doer, and must be held responsible for the consequences which follow.”
That Crook received no benefit from the fraud is no defense.
“All persons who are active in defrauding others are liable for what they do, whether they act in one capacity or another.” Haener v. McKenzie, 188 Mich. 27, 35.
The decree is affirmed, with costs to appellee.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Campbell, J.
Complainant obtained a decree of divorce from ber husband, the defendant, in the Wayne circuit court, for cruelty. He appeals.
The parties were married in 1881, complainant being a widow of a year or two under fifty, and defendant, a widower, -about ten years older. Both had grown-up children. They had been neighbors and acquainted during most of their lives.
On the 29th of August complainant left her husband, and ion the next day a somewhat voluminous bill was filed which <could hardly have been drawn during the interval, in which she sets up as grounds of divorce several instances of opprobrious language and conduct, some neglect, and some acts of violence.
This bill defendant answered on the 22d day of September, 1883, with averments which met the bill, and denied or explained the charges, and set up various other reasons against the allowance of a divorce.
On the 8th of October, 1883, complainant filed another independent bill to set aside certain conveyances of land made by defendant to his children before he married complainant/and as she claimed in fraud of his intended marriage. The circuit court in that case held the deeds void as .against her interests, and decreed her a homestead interest in the farm which the parties last occupied, which was not the defendant’s homestead when they married, nor for along time thereafter. From this decree, by an apparent mistake, no appeal, was taken. The record, including the testimony, was for some purpose introduced by complainant as part of the testimony in this case. It has no bearing on her aliegations in the divorce suit, and it does not come within the' appeal now before us so that we can review /it. It may have some pertinence as not consistent with some purposes of the divorce suit.
Upon a careful examination of the record, aided by full discussion, we are notable to agree with the court below that any divorce should have been granted. Leaving.out complainant’s testimony, there is nothing proven which could possibly establish any case against defendant. Every essential fact which she states as a witness is either denied by defendant or sufficiently explained to do away with its seriously bad features. The testimony of the other witnesses decidedly preponderates in his favor.
It would not be of any use to rehearse and place upon record in our reports the family dissensions which we have been called _ on to consider. There is testimony of some harsh language and some other exhibitions of temper on the part of defendant. But the record does not exhibit him as éither brutal or extremely harsh in his disposition. He seems to have been somewhat irascible, and the record gives much reason to believe that the instances of temper detailed by complainant were frequently, if not generally, provoked by complainant’s tantalizing and exasperating acts and insinuations, which were well calculated to annoy and vex him. Her own testimony shows this very clearly, and shows also that the annoyance was not given in ignorance of its probable effect. So far as any one else could see, the defendant’s conduct did not prevent the pair from living in a reasonably comfortable way for the most part. The acts of violence charged, are, in our opinion, effectually disproved, and a comparison of evidence makes it plain that the largest share of grievances have become magnified by nursing, and probably appear to complainant’s imagination much larger than they did at the time. There has been probably on both sides less forbearance and unselfishness than ought to be found. between husband and wife. But we can see nothing in such facts as we regard as established to indicate any good reason why complainant with reasonable prudence and temper could not have secured a fair amount of peace and comfort. No complaint is made of any lack of the ordinary needs of a decent and respectable home. Defendant’s children treated complainant with proper courtesy. A decree dissolving this marriage ' must, if granted, be made to rest on grounds which would render this most important relation subject to dissolution for causes that might destroy a large share of the households in any region. Those who form such ties cannot shake them off because their partners are not exempt from infirmities of temper, or do not bear with meekness and good nature the annoyances which vex them. And those who complain of others are bound to show consideration and reasonable conduct themselves. There is not usu ally much trouble in keeping peace if both parties do their share towards maintaining it.
We think this decree should be reversed, and the bill dismissed. So far as the decree in the other case is concerned, it is difficult to see what use can be made of it, but, as it is not appealed from, we cannot deal with it.
Defendant has been put to so much expense in this double litigation, that we are not disposed to put him to further charges. Our decree will be without costs to either party.
The other Justices concurred. | [
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Sherwood, J.
This is an application for a mandamus to compel the respondent to vacate and set aside an order staying proceedings at law in a certain cause pending in the circuit court for the county of Wayne, wherein Edgar O. Durfee, Judge of Probate, for the use of Edmund F. Culver v. John McKeown, William W. Abbott and Alexander D. Fowler are the parties.
On the 1st day of February, 1875, John T. McKeown gave to the relator, payable to his order three years from date, his note for $1100, with interest at ten per cent, per annum, payable semi-annually. This note was secured by two mortgages upon real estate given by the said McKeown. After giving the note and these mortgages John T. McKeown died testate on the 18th day of October, 1875, leaving John McKeown executor of his estate, also residuary legatee under his will. Said John McKeown, as such executor and legatee, with William W. Abbott and Alexander D. Fowler his sureties, on the 18th day of October, 1875, gave his bond to the judge of probate of Wayne county in the sum of $10,000, conditioned for the faithful performance by the said John McKeown of his duties as executor, and that he should pay all the debts of the testator. On the 6th day of August, 1878, the relator having neglected to present his claim upon the note to the commission on the estate of John T. Mc-Keown, deceased, for allowance, and having made an application to the judge of probate for a revival of the commission or for him to hear and allow the claim, the court granted the application; and on the hearing of the claim, on the 5th day of September, allowed the same at the sum of $1100, and interest thereon from the 1st day of February, 1878, at ten per cent, per annum.
On the 9th day of November, 1878, the relator filed his bill to foreclose the two mortgages against John McKeown, and made [a party] therein one Caroline Crossman, who was a prior mortgagee as to part of the property covered by the mortgages, and obtained a decree of foreclosure for and sale of the mortgaged premises, which was sold in pursuance thereof, but not for enough to satisfy the mortgage debt ; and a personal decree for the payment of the deficiency, amounting to the sum of $852.85, and interest thereon from January 2, 1880, was taken against the said John McKeown on the 29th day of April, 1882, and on the same day execution issued thereon to collect the same.
On the 8th day of March, 1880, the relator, by order of the probate court, was permitted to bring suit upon the bond given by the said John McKeown as residuary legatee, and his sureties, to recover the amount of the note secured by the said mortgages. In pursuance of the leave given under the order of the judge of probate, the relator did on the 2d day of April, 1880, bring his action against tlie said John McKeown and his sureties upon the said bond to recover the said deficit upon the foreclosure of the mortgages, commencing his suit by declaration. ■
The defendants offered and filed a plea of the general issue, and on the trial of the cause on the 12th day of January, 1882, the relator obtained a verdict for $1021.71 upon which judgment was rendered on the 19th day of April, 1882. This judgment was subsequently removed to this Court on writ of error and the judgment at the circuit reversed and a new trial granted on the 11th day of April, 1883. Durfee v. Abbott 50 Mich. 278. A remittitur was filed, and the relator, by order of the circuit court, dated June 23, 1884, was permitted to amend his declaration. A stay in the proceedings in the case was obtained by defendants on the 10th day of September, 1881, and at the following October term of this Court a motion for mandamus to compel the circuit judge to vacate his order granting such amendment was denied. Abbott v. Judge Chambers 55 Mich. 110.
On the 18th day of February, 1885, the circuit judge denied a motion to set aside relator’s proceedings in the suit on the bond, based upon the fact that he had never obtained leave from the court in which the foreclosure was had, to bring a suit at law for the deficiency. On the 13th day of March following, counsel for defendant obtained an order from the judge of the Superior Court in chancery, in the foreclosure case, staying all further proceedings on the part of the relator in his suit against the defendants upon the bond, and the further prosecution thereof. This order is based upon the grounds that the claim sought to be recovered in the suit on the bond is the same as the deficiency on the foreclosure sale, and that no leave was ever granted to relator bj7 the Superior Court in chancery, to bring the suit at law. The mandamus now prayed for is to require Judge Chipman to vacate the order made by him in the Superior Court restraining the relator from prosecuting his suit upon -the bond to. judgment.
Counsel for respondent rely upon How. Stat. § 6703, to support the action taken by the judge of the Superior Court. It reads as follows: “After such bill [meaning the foreclosure bill] shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt- secured by the mortgage, or any part thereof, unless authorized by the court.” This statute came to us from that adopted in the state of New York, and seems to be a copy of the same.
Before the adoption of this statute no decree for a deficiency could be rendered in a foreclosure suit. Dunkley v. Van Buren 3 Johns. Ch. 330. The court could only decree a sale of the mortgaged premises and the application of the proceeds to the debt secured by the mortgage. A separate suit at law upon the bond or note was necessary for the recovery of the deficiency, where one arose, and the creditor had the right to institute proceedings upon the personal security, even during the pendency of the foreclosure suit. Jones v. Conde 6 Johns. Ch. 77. The debtor Avas thus subjected to a “ double litigation,” and the object of the statute is said to have been in that state to abolish such oppressive proceedings and give to the court of equity power to afford complete relief in mortgage cases by awarding a decree for the deficiency, and permitting execution to go thereon, retaining, however, power in the court to allow a suit at law to be brought in exceptional cases, the general rule being that the creditor must elect in which tribunal he will take proceedings to collect his claim. Engle v. Underhill 3 Edw. Ch. 250; Suydam v. Bartle 9 Paige 294; Insurance Soc. v. Stevens 63 N. Y. 341; Scofield v. Doscher 72 N. Y. 491.
It seems to be very well settled also in New York that no proceeding can be taken at law upon the personal security; to enforce payment of the deficiency, without leave of the court in which the foreclosure was had; and this seems to be the tenor of the decisions in this State, so far as the question has come under review in this Court. Glover v. Tuck 24 Wend. 153; Porter v. Kingsbury 5 Hun 597; and cases above cited. Also Joslin v. Millspaugh 27 Mich. 517; Innes v. Stewart 36 Mich. 286; Le Mill v. Port Huron Dry-dock Co. 30 Mich. 38. This rule, however, properly applies only to remedies upon the personal securities given with the mortgage, or which are intended to be secured by it, and only to parties to such instrument or instruments, and to those who are liable thereon or properly made parties to the chancery proceeding in the foreclosure suit. It is not claimed that the defendants in the suit upon the residuary legatee’s bond are liable to the complainant in the chancery case by reason of any contract relation between him and the defendants contained in the note or mortgage. Neither could the deficiency be enforced against them in consequence of the contract contained in the note and mortgage. And leave is only necessary to be obtained from the equity court to prosecute at law for the deficiency upon the liability of the parties incurred upon the contract contained in the note and mortgage. Defendants Abbott and Fowler, in the suit at law, and who are upon McKeown’s bond, were not parties in the foreclosure suit; and, if they might have been properly made parties (upon which question we express no opinion), they were not necessarily so. Neither could they be sued upon the bond at the instance of a creditor without the order of the judge of probate. How. Stat. § 5996.
The bond is a statutory one; the statute authorizing it provides the method for its enforcement, and in such case it is usually exclusive of all others. This would seem to render the exclusive direction claimed for its enforcement in the equity court untenable. How. Stat. § 5836; Hatheway v. Sackett 32 Mich. 102. In those cases where leave of the equity court to bring suit at law is required, such leave can seldom be held jurisdictional. It is usually a question of practice, and does not involve the merits. The right to bring suit on the claim, whether it be for the amount of the note, or for the deficiency on the mortgage foreclosure, exists at common law, and the object of the suspension of the right by the equity court is, not to limit the remedy, but to avoid unnecessary litigation and oppression, and when suit at law is brought without an order granting leave, it is usually no more than an irregularity; and when nothing of substance is to be gained by restraining the proceeding in the law court, it is difficult to see upon what ground a stay of pro ceedings can be properly justified. Goodrich v. White 39 Mich. 490; Innes v. Stewart 36 Mich. 285.
In this case it appears that the decree in the equity court .had been taken for the deficiency, and execution issued thereon, and the relator failed to make his money on the deficiency in such proceeding. If this were a case in which the statute invoked was properly applicable, its efficacy appears to have been exhausted, and no reason is apparent for the chancery court retaining the further management and direction of the claim; but I do not think the record presents a case-requiring leave to be obtained of the equity •court before the relator could bring his suit at law. If it were such a case, however, and the failure being an irregularity only, it might be very properly held that the action taken by respondents in the premises was a waiver of the irregularities. High on Receivers, § 261; Hubbell v. Dana 9 How. Pr. 424; Lane v. Salter 4 Rob. 239.
It is unnecessary to consider further the points made by counsel on either side. We do not think the order staying proceedings, made in the Superior Court, ought to be sustained, and a
Mandamus in accordance with the prayer of relators must be granted..
The other Justices concurred. | [
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Sherwood, J.
It appears from the record in this case, that, during the year 1882, the plaintiff was in possession of and used, and had for many years previous thereto, two mills in the township of Sherman, in Isabella county. These mills were run by water-power upon Chippewa river. One was a grist-mill and the other a saw-mill, and stood side by side, and were joined together, and located about nine miles below the junction of the north and south branches of the •Chippewa, which constitute the main stream. The defendants at the same time possessed and controlled a dam known as the “ Hudson Dam,” and banking ground for logs below the dam, where they were deposited in large quantities by •defendants; and this dam was used by them for the purpose of flooding the logs away from the banking ground, and running them to the jam below. The dam was sixteen miles, by the current of the stream, above the mills of the plaintiff, and located on the south branch. The plaintiff brought this suit against defendants for unlawfully holding back and diverting the waters of the river in the south branch, thereby preventing him from using his mills. The plaintiff in his declaration particularly sets out the wrong •complained of, and alleges that he was thereby deprived of the use of his mills and the profits thereof which he would have made if the waters of the Chippewa had not been diverted.
The defendants pleaded the general issue. The case was tried before "a jury, and upon the trial the plaintiff introduced testimony tending to show that after the middle of June •of each year logs could not be driven on the south branch «of the Chippewa river without the use of floods, and that the defendants drove the logs so deposited by them on the banking ground above referred to by the use of floods from the Hudson'dam, and that the waters of the south branch ■were held back by means of the dam, and that floods were let off from the dam at intervals during the season of 1882, commencing in the latter par-t of June and lasting up to the first of December ; that by this use of the water the water was retained from the mills of plaintiff and let off in such a way that the plaintiff was deprived of the use of his mills during the season from the latter part of June.to the first of December; that during this time the plaintiff was so deprived of the use of the saw-mill entirely, and of the full use of the grist-mill a portion of the time, and that the irregular manner in which the defendants let off the water was the cause of the failure of the mill to be operated during those times.
There was no evidence that the defendants detained the water in any way other than by means, of the dam. The testimony of the plaintiff also showed, or tended to show, that the highest head of water that could be raised at any time in 1882 at the Hudson dam, and which was taken therefrom, was four feet two inches, and that during the summer of that year the usual head of water, when the sluice-gates-were shut, was two feet and six inches, and that after the-gates of the dam were opened, the pond on the Hudson dam-’ would be emptied in about three hours. And the plaintiff.’ also introduced testimony tending to show that the usual and! ordinary flow of the waters from the two branches of the-Chippewa referred to would furnish him with sufficient water with which to run his two mills to their full capacity during the entire season; that the waters of the north branch-were not sufficient for that purpose; that plaintiff called upon the defendants during the fall of 1S82 and told them-the injury they were doing him, and asked <them to stop-holding the water back, and that the' defendants refused this-request, and told plaintiff he could not have the water nor have any pay for it.
Tlie defendants on their part introduced testimony tending to show that the waters from the north branch of the Chip pewa river were sufficient in volume to run the mills of plaintiff from the middle of June to the close of the season of 1882, and that the volume of water flowing into the plaintiff’s mill-pond, aside from what went into the same from the south branch of the Chippewa river, was sufficient to have enabled the plaintiff to have run and operated his mills con. tinuously during the time aforesaid without the aid of the water from the south branch of the Chippewa river; that the pond of the plaintiff covered from sixty to eighty acres, and in some places was about twelve feet deep ; that the greatest extent of pond caused by the detention of water at the Hudson dam by the head of four feet six inches would be from six to eight acres; that the sluice-boards in the dam, during the months of June, July, August and September, leaked so that about one-quarter of the natural volume of the water passed through ; that the use of the Hudson dam by the defendants did not interfere with or affect the head of water in the pond at the dam of plaintiff, and that the water of the south branch was not detained such length of time or in such manner as to affect the flow of water in the pond of plaintiff; that during the time in question there was a dam and mill between the forks of the Chippewa river and the mills of plaintiff, and also during the same time there was from five to seven million feet of logs in the channel of the stream, and that, by reason of the distance between the dam maintained by defendants and the mills of the plaintiff, and of the logs and other obstructions that were in the stream between the two, the water of the south branch flowed into the pond of the plaintiff in substantially its natural flow.
The jury, upon the evidence, and under the rulings and charge of the court, rendered their verdict in favor of the plaintiff for $766, and judgment was duly entered therefor. The defendants bring error.
A large number of exceptions were taken upon the trial, and to the charge and refusals to charge. As appears by briefs of counsel, the two main questions upon which a ,review of the case is desired by this Court are the following: First. Were the rulings and charge of the circuit judge correct as to the defendants’ right to hold the water back, as charged in the declaration % and second. If the jury found the facts to be as the plaintiff claimed them, was the rule of damages as laid down by the court correct, and could the plaintiff recover for the use of his mills, while idle, for the want of water wrongfully diverted by the defendants ?
For the purposes of this suit we must regard the testimony offered sufficient prima facie evidence that each party was the owner of the premises he occupied and used upon the stream. The record shows these parties proprietors on the same stream, and as such each has a right to a fair and reasonable participation in the use of its waters. This right the law will always protect, and when violated, will furnish the proper means of redress. This right is common to all proprietors, and an in jury to one, which is incident to the reasonable enjoyment of the common right by another, is not actionable. It is only the unreasonable use, detention or diversion of the water that is actionable. Dumont v. Kellogg 29 Mich. 420; Hoxsie v. Hoxsie 38 Mich. 80; Buchanan v. Grand River Log Co. 48 Mich. 367; Pettibone v. Maclem 45 Mich. 381; Pitts v. Lancaster Mills 13 Met. 156; Thunder Bay River Booming Co. v. Speechly 31 Mich. 336.
IJpon the first question above stated the circuit judge held and charged the jury: “The plaintiff had the right to have the water of the south branch of the Chippewa river flow into and through his pond in its usual and ordinary mode of flowing, and any detention of the water by defendants, for the sole purpose of securing a flood, in such a manner that it could not be used by plaintiff in the running of his mills, was unreasonable and unlawful as to plaintiff, and entitles him to compensation for the resulting damages. If you find from the evidence that by reason of defendants’ holding back the water by means of the dam, that plaintiff was thereby prevented from obtaining a sufficient supply with which to operate his mills, he is entitled to recover such damages as he has suffered by reason of being deprived of the use of his mills.” ¥e think these charges are not subject to the exceptions taken, but that the rule laid down is within the former ■decisions made by this Court, and particularly the last case above cited, which is very much like the present in its facts. We find no occasion for modifying the views therein presented in any respect.
Upon the second question, the circuit judge charged the jury: “ The measure of damages is such sum as the use of the mills was worth to the plaintiff during the time in the summer and fall of 1882, as plaintiff was unable to use them by reason of the water being held back. If the jury find for plaintiff they will award him such sum or damages as they find from the evidence that the use of the saw-mill was worth to plaintiff between July 1, 1882, and December 12, 1882, if you find from the evidence that he was unable to run or (use his saw-mill between those dates solely on account of defendants holding the water back; and also such sum as they may find from the evidence that plaintiff has lost by reason of not being able to run the grist-mill to its full capacity between those dates, by reason of defendants holding the water back.” The law upon the subject of damages thus stated was applicable to the facts as claimed by the plaintiff and entirely proper upon his theory of the case.
We further think there was no error committed in receiving the testimony upon the subject of damages, which was objected to by counsel for defendants.
The judgment must be affirmed.
The other Justices concurred.
The plaintifi was permitted to testify against the objection of the defendants, as to what the use of the saw-miJl was worth to him in the summer and fall of 1882 for the purpose of manufacturing lumber with * head of water with which to run it, and also what the use of the grist .mill for the same time was worth with .water with which to run it. | [
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] |
Cooley, C. J.
The bill of complaint in this case sets forth :
That on November 17, 18S2, the defendants Daniel D. McDonald and Hugh McDonald entered into a contract in writing, a copy of which is given with the bill, whereby Daniel, in consideration of three dollars per thousand feet, agreed to permit Hugh to go upon certain described lands and cut and remove all white pine timber, except such part thereof as would make board timber, and run and drive the same down the rivers, but not below tbe locks at McArthur, •Smith & Co.’s mill, until Daniel had been paid tbe stumpage price therefor; the logs to be paid for before delivery to any mill or to any other parties, and Daniel retaining the absolute title and ownership until payment.
That on the same day, and after the execution of the above-mentioned contract, Hugh entered into another contract-in writing with complainant, whereby he agreed to sell to it all the logs and timber so to be cut by him, and to run, drive, and deliver the same at a place to be designated on the Cheboygan river, above tbe locks, at the sum of eight dollars and fifty cents per thousand feet, board measure; payment to be made as specified in the contract with him, a copy of which is also given.
That the two contracts above mentioned were entered into -substantially at one time, and as one transaction, and the effect was that Daniel and Hugh, in concert, were to furnish and deliver the logs to complainant, — Daniel furnishing the standing timber, and Hugh the necessary labor; and Daniel was therefore bound by a clause in complainant’s contract with Hugh, whereby complainant was-to have a lien upon the logs to cover all advances and payments by complainant under that contract.
That the contracts having been made, Hugh and Daniel, acting in concert, proceeded to put a large quantity of logs into the river, and complainant made payments and advances to Hugh which, on May 16,1883, bad amounted to $3059.73, for which complainant claims a lien on the logs superior to any lien of said Daniel.
That on or about said sixteenth day of May, 1883, some misunderstanding occurred between said Hugh and said Daniel, in consequence of which Hugh surrendered his infer- est in bis contract to Daniel, and Daniel assumed its performance and informed complainant of that fact, at the same time-requesting complainant not to pay the orders of Hugh except as they should be marked by him for payment; that complainant agreed to this, and afterwards paid Hugh’s orders,, with. Daniel’s mark upon them, to the amount of $1144.03.
That complainant, about July 3, 1883, finding it had paid nearly the contract price for the logs, declined to- pay any more, and thereupon Daniel declined to run the logs any further ; that complainant then put on men to run them; that the-logs were mixed in the stream with timber of said Daniel^ and complainant expended in running them the sum of $2301.07, which is chargeable to said Hugh and Daniel, making in all $6504.83 ; ,.
That the logs, when they reached their destination, only-amounted to 657,000 feet, or thereabouts, which was very much less than the complainant had been told by said Hugh when he was obtaining advances, so that complainant has paid about $1000 more than the contract price for the logs.
That Daniel has made a bill of sale of the logs to J ohn W. McGinn, and that said Daniel, Hugh and John have combined and conspired to cheat and defraud complainant out of the logs, and of the moneys paid for them.
That William M. McDonald, and sixteen other persons named, claim to have labor liens on the logs, for different sums of money, for labor in cutting, running, hauling and driving the logs, and some of them have levied attachments on the logs, and proceeded to judgment and execution, and William Harrington, sheriff of the county of Cheboygan, who holds said executions, threatens to sell said logs thereon. The liens are alleged to be void, and the law under which they are claimed is alleged to be unconstitutional.
The bill makes Daniel and Hugh McDonald, McGinn, Harrington and all the parties claiming liens, defendants, and prays that “the said defendants may come to a just and fair account touching the amounts paid by your orators aforesaid and various other matters herein set forth ; and that by the writ of injunction to be issued out of and under the seal of this honorable court, and by the final decree of this court, the said defendants may be restrained perpetually from bringing any suit or suits at law to remove from your orators the possession of said logs, and from bringing any suits at law to enforce any of said pretended liens, and from in any way whatsoever interfering with your orators in their possession and use of said logs, and removing them to their mill or any other place, and disposing of the same as they see fit; and that, by the final decree of this honorable court, all of such pretended liens, jirdgments and executions may be set aside as against your orators and as against said logs, .and your orators’ title to said logs, free of all liens, may be declared and established; and that your orators may have such other and such further relief in the premises as shall be agreeable to equity and good conscience.”
The defendants who claimed labor liens appear to have answered in the case; but as they have not appealed from the decree, which was in favor of complainant as against all of the defendants, their defense requires no notice. The only defendants who have appealed are Daniel McDonald and McGinn. Their answer, while admitting the two contracts, denies that they had any connection which made Daniel McDonald a party to the contract with complainant; denies that Daniel McDonald ever took upon himself the performance of the last-mentioned contract, or that he ever gave complainant to understand he had done so; denies that he has received from Hugh the payment for the timber, or any par-thereof, or that Daniel has ever waived any right thereto.
The case was heard on pleadings and proofs. Defendants insisted that the case was one for a court of law, but this view was not sustained. ¥e think it should have been.
Daniel McDonald claimed the logs by virtue of having the legal title as security for the payment of the sum to be paid to him as stumpage. McGinn claimed under him, and stood in the same right. The question of this title was purely legal, and we do not discover in the case any embarrassment that could possibly attend its trial and determination in a court of law, unless the existence of the labor liens could create such embarrassment. But the labor liens could give no jurisdiction to a court of equity. These also, if valid, were legal claims, and they were not dependent upon the rights of Daniel McDonald, or upon any equities that might exist as between him and the complainant. Their great number, under such circumstances, instead of being a reason in support of equitable interference; was a reason against it; for each as. serted lien rested upon its own facts, and the only matter in which the claimants had a common interest was the question of the validity of the.lien law; and as to this, Daniel and Hugh McDonald and McGinn were not concerned with them.This suit, therefore, is an attempt to bring into a court of equity a large number of legal controversies, which rest neither upon the same states of fact nor the same questions of law. It could not, therefore, diminish either the number of controversies or the number of issues to be tried; and it was neither a bill of peace, nor a proper bill to prevent multiplicity of actions.
But, as has been stated, the cases of labor liens are not before us, and the printed record does not inform us on what issues they were disposed of. We have reason to suppose, however, that proofs were not gone into on those claims. As Daniel McDonald and McGinn did not demur, except by demurrer clause in their answer, we have examined the evidence, and shall now dispose of the case upon the merits.
We find in the record no evidence which puts upon Daniel McDonald responsibility for the contract of Hugh with complainant. That contract was made with Daniel’s contract in view, but the two were in no way connected, except as all parties understood that the logs were to be had under the second contract only on performing the first. Hugh’s failure to perform on his part has created all the difficulty that the parties have met with; but it is a failure which Daniel had never undertaken to be responsible for.
The complainant has produced some strong evidence that Daniel said, in May, 1883, that he had taken the performance of Hugh’s contract with complainant upon his own hands. This is explicitly denied by Daniel, who testifies that he never assumed to take charge of the drive, and never did do so. Whether he did or not, we do not think is material in this case. We find no evidence of any payments made to him for which he can now be called to account, and none that he ever was satisfied for his claim for stumpage. That claim, therefore, he is entitled to have paid by the party that has taken the logs which were held by him in security. If complainant overpaid Hugh for the labor done by him, the loss is a misfortune which cannot be charged to Daniel. His making of orders for payment to Hugh appears in the evidence rather as a friendly act on his part to save further loss than as an assumption of responsibility; and it certainly did not indicate any understanding on his part that he had become principal in the contract, but rather the contrary.
Daniel McDonald, then, is entitled to his stumpage, to be diminished by any just claim the complainant may have against him. Complainant has a claim to a small amount, and it also-claims that labor arid expense were incurred on the timber of Daniel, which should be paid for by him. As to these matters, the complainant may have a reference to a commissioner.
The decree should be reversed as to the defendants who-appealed, and the record remanded for' further proceedings. The two defendants who appealed will recover costs of this Court, and the costs below will abide the result.
Sherwood and Ohamplin, JJ. concurred.
Campbell, J.
I am not satisfied that there is any error in. the decree.
This memorandum of agreement made and entered into this 17th day of November, 1882, by and between Daniel D. McDonald, of Cheboygan, Michigan, of the first part, and Hugh McDonald, of the same place, of the second part, witnesseth as follows:
Said first party, for and in consideration of the sum of three dollars per thousand feet, board measure, hereby agree to permit said second party to go onto the following described lands situated in the county of Otsego, State of Michigan, to wit: The E. 4 of S. W. 4 sec. 19; the N. B. 4 of N. W. 4 sec. 20; the S. 4 of N. E. 4> the IS. W. 4 of N. B. 4. the S. B. 4, the B. 4 of S. W. and the S. W. 4 of S. W. 4. sec. 29; the N. 4 of N. E. 4> and the N. 4 of N. W. 4> sec. 31, all in town 31 N., of range 1 W., at any time prior to the first day of May, 1884, and to cut and remove all the white pine timber, except such part thereof as will make board timber, now standing and being thereon, and to run and drive the same down the rivers, but not below the locks at McArthur, Smith & Co.’s, mill; until he shall have been paid the stumpage price therefor; said first party reserving the right to determine and direct where and upon which part of said lands said second party shall‘operate first, and also what timber said second party shall cut and shall remove. Said second ptrty, on his part, hereby agrees to purchase, and by these presents does purchase, the said timber upon the lands above described, and to pay said first party therefor at the rate of $3 per thousand feet when and so fast as any part of the logs to be taken from the said lands shall have been run down the rivers, and before delivery to any mill or to any other parlies. • An,d he also agrees to cut and to remove such timber all clean so far as lie goes or proceeds with, the work. It is agreed and distinctly understood, by and between the parties hereto, that the absolute title and ownership of, in, and to the logs and’ timber to be taken from said lands shall be, continue, and remain in said first party until he shall have been paid the consideration price for the stumpage as above provided, and that upon said stumpage price being paid as above provided, that thereupon the title therein and thereto shall pass and become fully vested in said second party. The logs to be cut from the above-described lands shall be marked "P,” with'a marking hammer, by said second party before being put into the water. The quantity of logs taken from the said lands shall be determined by the scale and measurement of the same, by which they shall be sold by said second party, if that shall be practicable; if not, then they shall be measured by some competeut scaler.
In witness whereof, the parties hereto have hereunto set their hands the day and year first above written.
Daniel D. McDonald. his
Iluan X McDonald. mark.
In presence of Geo. W. Bell.
This memorandum of agreement made and entered into this 17th day of November, 1882, by and between Hugh McDonald, of Cheboygan, Michigan, of the first part, and the Southern Michigan Cedar & Lumber Company (Limited), of the second part, witnesseth as follows:
The said first party, for and in consideration of the sum of eight 50-100 (8.50) dollars per thousand feet to be paid by said second party as hereinafter expressed, hereby agrees to go onto the following described lands situate in Otsego county, Michigan, to wit: the E. i of S. W. J sec. 19; the N. E. i of N. W. i sec. 20; the S. * of N., E. -J-, the N. W. i of N. E. ¿, tile S. E. i, the E. i of 8. W. i, and the S. W. ■£ of S. W. J, sec. 29; the N. •£ of N. E. and the N. of N. W. J sec. 31, all in town 31 N. range 1 W., and to cut, draw, run, drive and deliver to said second party, at the place to he designated by second party in the Cheboygan river and above the locks, all the merchantable white pine timber standing and being upon the above described lands, except such part thereof as will make hoard timber, and to cut said timber into said logs, and in a good and workmanlike manner, and of proper merchantable lengths. It is understood that said first party is to deliver under the terms of this contract all merchantable butts and tops left and remaining from the making of hoard timber in said lands — that is. all such butts and tops not less than ten feet in length that will make good merchantable timber to work into ■shingles — and to so cut at least 600,000 feet and not more than 1.000,000 *feet during the present ensuing winter, and deliver the same as aforesaid on or before the 15th day of August, 1883, and the balance to so cut during the winter next ensuing thereafter, and to deliver the same as aforesaid on or before the 15th day of August, 1884; said timber to be cut down to ten inches in diameter at the small end, and no smaller. Said second party, in consideration of the premises, and the delivery of the logs as aforesaid, hereby agrees to purchase from said first party the logs to be taken from the lands aforesaid, and to be cut and delivered as above specified, and to pay him therefor at the rate of $8.50 per thousand feet, hoard measure, and to pay the same as follows: At the rate of $1.50 per •thousand feet when and so fast as the same shall he cut and skidded, and the further sum of $1 per thousand feet when and so fast as drawn and ■put on the rollways at the river, and the further sum of $2 per thousand feet for the running, driving, and delivering as aforesaid, and to pay the same as shall be necessary during the time of running and driving, provided'said second party shall at all times hold back or retain a sufficient part of the said $2 per thousand to insure the delivery as aforesaid, and the balance to be paid when .the logs shall have been delivered as above provided, and in manner following: to pay to D. D. McDonald at the rate of -$3 per thousand feet, that being the amount of his claim for stumpage for the timber, and the balance, to wit, at the rate of $1 per-thousand feet, to pay to said first party. The logs to be got out under the terms of this agreement are to be marked by said first party before-being put into the water, as follows: “P.” with a marking hammer. The quantity of logs skidded and drawn to the rollways, upon which payments are to be made at certain rates as above provided, shall be determined by monthly estimates of the same by the parties jointly, and payments to be made according to such estimates, the expense of which is to be borne equally by the parlies hereto. And the quantity of logs that shall be delivered shall be determined by a scale and measurement at the place of delivery; by some scaler, to be agreed upon by the parties hereto, which scale and measurement is to be taken and adopted as a basis of settlement of all matters and things under this contract. And it is agreed that if it shall be found by said scale that said second party shall have-paid a greater sum on account of this contract than is above provided, or in case a less sum shall have been paid, then in such case it shall be adjusted at the time of delivery, whether it shall amount to a greater or less sum than at the rate of $1 per thousand; the consideration price for the logs being $8.50 per thousand feet, according to a scale to be made as last above provided. Said second party are to furnish chains and boom-sticks for booming said logs at the place of assorting below the rapids in Black river. It is agreed that said second party are to and shall have a lien upon the logs to be taken from the above-described lands, to cover any and all advances, and to secure any and all such advances that said second party may make said first party, or shall pay on account of this contract.
In witness whereof, the parties hereto have hereunto set their hands, the day and year first above written, his
Hugh X McDonald mark.
Southern Michigan Qedar & Lumber Co. (Limited),.
Per F. S. Packard, Manager. | [
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Campbell, J.
In this ease it appears that a part of the plaintiffs were defendants in a chancery suit in which they were decreed to have no title against the second wife of John Probasco. It was their duty in that case, if they had any superior title, to maintain it. If they found newly-discovered facts which would make out a defense, it would have been their duty, if they desired to avail themselves of them, to have the decree opened by bill of review. They cannot attack it collaterally.
The deed from John Probasco to Uzal was, according to the testimony of - Uzal, part of an' entire contract for the exchange of lands, which was abandoned.' Uzal therefore took nothing by it. And I think that the action of John Probasco in giving it a different direction, and obtaining a conveyance to his wife, delivered to himself, and not to her, could not be; operative on behalf of her heirs without some evidence that she was cognizant of and a party to the delivery by some acceptance or approval. - ■
A new trial should be granted.
Ohamplin, J. concurred. | [
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] |
Champlin, J.
The defendants exchanged horses with ■plaintiff, giving him one they had obtained from one Evens. The plaintiff shortly after sold the horse to Thomas Connolly. Henry Stevens replevied the horse from Connolly in justice’s ■court, claiming that he was the owner, and that the horse had been stolen from him some six years before. In this suit ■Stevens recovered judgment, and thereupon Connolly sued Axford, the plaintiff in this suit, in assumpsit for failure of title, and recovered. In that suit Axford gave the defendants written notice to appear and defend the title. After-wards Axford brought this suit against the defendants, his vendors, for-the failure of title. He offered in evidence the said judgment of Connolly against him, and the notice to these defendants to appear and defend, and insisted that the judgment was conclusive evidence as to the title to the horse, and the defendants should not be permitted to prove that Stevens was mistaken as to his ever having owned the horse, and that the title to the same was rightfully in John D. Evens, the vendor of these defendants; and in this view plaintiff was sustained by the court.
The defendants offered to show that Axford, the plaintiff, had charge of the defense of Connolly when sued by Stevens; that he employed the counsel who tried the suit, and was present and sworn, and that he afterwards refused to permit the vendor of the defendants, Evens, to appeal the suit, and that the horse actually belonged to Evens, and not to Stevens; that these defendants were called on as witnesses, but had no notice of it otherwise, and nothing to do with the conduct of the case or employment of counsel. This evidence was objected to, and ruled out by the court, and exception taken. '
All the assignments of error are upon the conclusiveness of the judgment in Connolly against Axford, upon the defendants in this suit, as to the question of title under the facts-proved and offered. The questions in the second and third assignments were preliminary merely to showing the title,, and who had charge of the defense of the Stevens suit. What the defendants claimed, and do now, is that as Axford took charge of the defense in the case of Stevens v. Connolly and refused to permit the appeal, he was bound by the judgment, and as to him it was conclusive; that, this being so, it would have been futile for the defendants to attempt any defense in the suit of Connolly v. Axford. The learned circuit judge, howeyer, held that if the jury should find that Graham and Haskell, the defendants, knew of the pendency of the suit of Thomas Oonnolly against William IT. Axford for damages for reason of the failure of the title to the horse in question, and were notified to come in and defend the title to said horse in that suit, then they, the defendants in this suit, will be concluded by the judgment in that case, and they should find for the plaintiff.
We think the court erred in excluding the testimony offered. If defendant should establish the fact that Axford was notified by Connolly to appear and defend the title of the horse in the suit brought by Stevené, and he did so appear and defend, he was bound by the judgment in that case, and neither he nor his vendor could successfully assail it in ari action by Connolly against Axford. The proper course for plaintiff to have pursued when notified by Connolly to defend the title was for him to notify the defendants to defend the title, and in that case the judgment rendered in the suit of Stevens v. Connolly would have been binding and conclusive upon defendants.
Judgments of courts having jurisdiction are held conclusive upon parties and privies. But the reason why they are eomclusive is because an opportunity has been afforded to the party thus concluded to assert or defend his right before the-court rendering the judgment. In this case, questions concerning the title to the horse are settled and,concluded against all parties who have had an opportunity of contesting; the title before the court. For this reason Axford is concluded by the judgment in the suit of Stevens v. Connolly. But the defendants are not concluded by the judgment in the suit of Connolly v. Axford, because they could not litigate the title in that suit for the reason that Axford could not, he being concluded by the prior judgment. To hold them precluded by the judgment in'that suit would be the same thing as to hold them conclusively bound by a judgment in which they have had no opportunity to litigate the subject-matter, or contest the facts upon which the judgment was rendered'. This suit affords them the first opportunity to litigate the title to the horse, and they should have been permitted to have gone into that question.
The judgment must be reversed and a new trial ordered.
The other Justices concurred. | [
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] |
Campbell, «T.
This case appears from the bill of exceptions to have been tried on the theory that defendant was indebted to plaintiff in the sum of $1200, as part of the •amount due for capital stock-in the corporation, of which he was an original member. As the court directed a verdict for •the defendant, no other questions arise except as to the correctness of this ruling.
The company was organized under articles which set out 'that the capital stock was $500,000, being 20,000 shares of $25 each. They recited that $50,000 of the said capital stock is paid up. The number of shares taken was 16,900, of which defendant held 2000. The largest holder was Menzo D. Halsey, who held 12,000 shares, or $300,000.
The declaration contained one special count and the comunon counts. The special count averred the sale by the corporation to defendant Donovan of 2000 shares for $1200. But there was no evidence of any such sale. He was an ■ original associate in organizing the company, and by the : articles he was put on the statutory basis of all other stockholders — -bound to pay $25 a share, in such installments as should be required, by regular assessments.
The only evidence of any $1200 arrangement was that before fhe company was organized an arrangement was made ■by defendant, Halsey, and Mr. Dickinson that they would ■organize on a basis that defendant and Dickinson should each have 2000 shares, and pay $1200 for them, and that Halsey should have 12,000 shares for the machine which was the ■ chief purpose of the incorporation. There was never any recognition of such an arrangement by the company or its ■directors, and no such thing appears in the articles, which .leave these parties on the same footing with the others named, ■ and liable to the statutory liability for what they had not paid.
The statement that $50,000 had been paid up, does not show who had paid it. All of the stock was not taken, and it could not be a percentage of two dollars and a half a share. No charge was made on the books indicating that defendant had been credited without paying, or charged on any such basis, or had assented to any such liability. No assessment was ever made.
It is impossible on such a state of things to hold defendant liable for $1200, or any other sum, as due for stock under the issue in this case.
If, as claimed, there are equities arising out of the method -of dealing after the organization, they cannot be enforced in this action of assumpsit for the price of stock, or for stock calls, as none were ever made.
The judgment below so holding must be affirmed.
The other Justices concurred. | [
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Champlin, J.
The bill is filed in this case to wind up a partnership. Complainant states that he entered into a partnership agreement with the defendant, the terms and conditions of which were stated in said bill as follows:
“ Your orator undertook and agreed to lookup and discover valuable and desirable pieces or parcels of land in said county of Mecosta, on which the taxes were unpaid, and at the sale of such lands for such delinquent taxes as was or should be provided by the law of this State, your orator agreed and undertook to bid on and purchase the same, and to procure good and proper deeds from the State for the lands so purchased, and in consideration of your orator’s looking up desirable pieces of lands and bidding in same when sold for such delinquent taxes, and purchasing and procuring deeds therefor from the State, and in consideration of your orator giving his time and experience in buying land as aforesaid, and procuring deeds therefor, and doing all the business connected therewith, the said Patrick Erikson undertook and agreed to advance what money was necessary to pay for said lands so bought, and in procuring the deed therefor, and for such disbursements and expenses as should be necessary to carry on said business. That, out of the sale of said lands so acquired, the said Erikson should first be paid and receive the amount of money advanced by him as aforesaid. That your orator and said Erikson were to have an equal interest in said lands and venture, and the balance of the said proceeds received by the sale of the lands acquired as aforesaid should be divided equally between them.
It was further agreed, by and between your orator and said Erikson, that the papers, certificates and deeds for the said lands purchased by them as aforesaid should be made in-the name and run to said Patrick Erikson, but to be held in trust by him for said firm, in order that the said Erikson might the better be secured and indemnified for the money advanced by him in the purchase of said lands. That the duration of said partnership was not specified or limited to any time. That all and singular the terms and conditions of said agreement were agreed, consented to, and concurred in by said Patrick Erikson. That afterwards, and pursuant to said agreement, your orator devoted his time and attention to said business, and at the sale of lands for delinquent taxes-in October in said year, in Mecosta county, your orator bid off and purchased a large number of parcels of land in saidi county, and afterwards negotiated and received the deeds therefor from the Auditor General of said state. That said Patrick Erikson furnished and advanced the money to- pay for said lands so purchased, as was provided in said agreement. Tour orator bid off said' lands and got the deeds therefor in the name of said Patrick Erikson, as was provided in said agreement. That afterwards your orator and said Erikson, according to the terms and object of said agreement, sold and conveyed, and contracted for the sale of, divers pieces of lands acquired as aforesaid, to different persons. That your orator received part of the purchase money for said lands so sold, but that the greater part of the money and consideration received for said land was paid direct to-said Patrick Erikson. That in the sale of said lands by your-orator and said Erikson, and giving contracts for the sale of the same, your orator and said Erikson acted in unison and< concurrently, each one consulting the other. That of the-pieces and parcels of land purchased by your orator pursuant to said agreement mentioned, all have been sold except certain descriptions particularly specified in the bill.”
The complainant prays for an accounting and sale of the-lands on hand, and for a dissolution of the partnership.
The defendant interposed a general demurrer for want of equity. The court below sustained the demurrer and dismissed the bill. The case in this Court was submitted upom briefs without oral argument.
The defendant insists that the court must find that the agreement between the parties, as set forth in the bill of complaint, conclusive!}1, establishes a partnership between* them, or the decree below must be sustained; that a sharing; ■in profits does not necessarily constitute one a partner, but such sharing may be in lieu of salary or compensation to an ■ agent or employee ; that the contract set out makes a case of ■employment, and for the services rendered complainant was ■to receive one-half the proceeds arising from the sales of ■ such tax titles after deducting costs and expenses of pur- • chasing the same.
' This position would be quite conclusive were it not for certain other allegations in the bill, which, by demurring, the defendant has admitted to be true. The bill states that the complainant and defendant were to have equal interest in said land and venture, and the balance of the proceeds received by the sale of the lands acquired should be divided equally between them. It is thus asserted that there was a community of interest in the subject-matter of the venture, giving to each the like control over the management and disposition of the property acquired in the business, and this •communion of interest under the agreement extended both to the profit and loss. The fact that the titles to the land purchased were to be and were taken in the name of the defendant, did not place the absolute control and disposition ■of the lands in defendant. The complainant would have authority to make contracts of sale as a member of the firm, ■ and his contracts could be enforced in equity. Complainant states in his bill that he and defendant, according to the object and terms of their agreement, sold and conveyed, and •contracted for sale, divers pieces of land to different persons, acquired as aforesaid. It is true that if, under the agreement, the relation of master and servant exists, there is no partnership ; but if they, on the contrary, stand to each other in the relation of principals, and in carrying on the business ■of the firm act merely as its agents, then a partnership does exist. The latter is the true position of the parties under the ■ agreement.
The complainant was to contribute to the common enterprise his skill and personal services. The defendant was to advance the money necessary to pay the purchase price of the .lands purchased, and other incidental expenses, which there upon became a debt due from the firm to the defendant, having priority of payment out of the sale of assets. The balance of the proceeds was to be equally divided between them. This balance of proceeds represents the profits or loss made or suffered in the business. The agreement, although silent as to the losses, if any shall happen, very plainly implies that they are to be borne equally, since the basis of division of proceeds, after paying advances, is share and share alike.
We had occasion to consider an agreement to speculate in lands in Wells v. Babcock 56 Mich. 276, decided at the April term, and we there, held that each.purchase appeared to be a separate and distinct venture, and not to constitute a partnership between the parties. Here the case is different. The cqmplainant was clothed with authority to purchase, according to his judgment, without' first obtaining the approval or consent of the defendant; and here, also, the purchase and sale of a parcel did not constitute a distinct and separate transaction. The moneys advanced were to be paid out of the first moneys realized from sales, irrespective of whether it was advanced to purchase the particular tract sold.
The decree appealed from must be reversed, and the record remanded. The defendant will have leave to answer in twenty days after notice that the record is remanded. Complainant will recover his costs.
The other Justices concurred. | [
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