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Campbell, C. J.
Complainant filed a bill of interpleader to settle the contending claims of the two defendants to a sum of $2,000, under a member’s benefit certificate issued to Harry Traver, now deceased, who was a member of one of the subordinate lodges of the association represented by complainant.
It appears from the record that the order of which complainant is a corporate representative, or various associations connected with it, became, at different times, incorporated in different states. It also appears that there is a general association to which the smaller bodies are said to conform, having local lodges, incorporated and unincorporated. Just how far the special corporations in different states govern those elsewhere not incorporated, does not fully appear, and is not material in the'present case. We have no judicial knowledge beyond the record, and need not inquire.
In the present case, Traver appears to have been a member of a lodge at Port Huron, in this State, and the complainant, which is the body issuing the benefit certificate, and bound to pay it, is a corporation organized under the laws of Missouri. It is therefore, in all its contract drelations, subject to the conditions imposed upon its corporate powers by those,laws, and no rules or conditions can be lawfully imposed, contrary'to those laws, upon its corporate action, by any private association. It can make no contracts forbidden by the laws of Missouri'to such corporations; and, while the action of the unincorporated supreme lodge may be of more or less service in construing ambiguous arrangements not forbidden, it cannot in any way supersede the statutes.
The benefit certificate, which is dated July 16, 1881, after reciting membership of Traver, and some other similar matters, and some conditions, concludes as follows:
“ The said supreme lodge hereby agrees to pay out of the widows’ and orphans’ benefit fund, to his sister, Mrs. F. F. Richardson, the sum of two thousand dollars, in accordance with and under the laws governing this order, upon satisfactory evidence of the death of said member, and the surrender of this certificate: provided, that this certificate shall not have been surrendered by said member, or canceled at his request, and another certificate have been issued in accordance with the laws of this order.”
On the back of this certificate was a printed form:
“ I hereby surrender to the Supreme Lodge, Knights of Honor, the within benefit certificate, and direct that a new one be issued to me, payable to-. [Signed]-. Attest: -. [Lodge Seal.] -Reporter.”
Upon the certificate in controversy this blank was dated March 25, 1884, signed by Harry Traver, made payable to “ George K. Nairn, in trust,” but not signed or attested by the lodge “ reporter,” or by any one.
Defendant Nairn claims that, by virtue of this indorsement, the fund belongs to him. Defendant Mrs. Richardson claims that nothing has been legally done to divest her of the benefits promised to her by the certificate.
Nairn claims that Traver was an army comrade and intimate friend, who had lived at his house several years, and became hopelessly ill from some injury, in the early part of 1884, which interfered with his doing any considerable share of business, and in October, 1884, he went to Ypsilanti for medieal treatment, where he was under, the care of an aunt and other near relatives and family connections, one of whom was a physician. He died at Ypsilanti in December, 1884.
Nairn testifies that, while going to Ypsilanti, Traver told him he had plaeed a transfer of the certificate, with other-papers, in an envelope, which he had left in a bureau drawer in his room at Nairn’s, and wished him to do according to-the .instructions which he would find there. It does not .appear very clearly when Nairn first looked at this envelope, but it was sealed, and contained on the .outside, in black ink, “H. Traver,” and in blue pencil mark, “For Geo. Nairn, in case of my death.”
After Traver’s death, it was opened by Nairn, in presence of some of Traver’s relatives, and it then contained the certerficate indorsed, as before stated, as of March 25, 1884, and a letter of the same date, as follows:
“ Port Huron, March 25,1884.
“ Reporter of Integrity Lodge, Knights of Honor — Sir : I desire to have the beneficiary in my certificate of membership changed from Mrs. F. F. Richardson to George K. Nairn, in trust; and in the event of my death, two thousand dollars to be paid to him.
“'Harrt Traver.”
There was also a letter in blue pencil, dated June 24, 1884, directed to Nairn, and indorsed, “Geo. K. Nairn, in case of my death,” the purport of which was a request to have his affairs straightened, pay a list of debts enclosed of about $359, and funeral expenses, and apply balance as directed in memoranda. The remainder of the letter explained his business matters and some other things.
There was also a life insurance policy for $500 on the life of Mrs. Richardson, which he requested to have kept for her son. Also a letter, dated October 15, 18S4, (which was the date of his going to Ypsilanti), addressed jointly to his sister and aunt, requesting them, in case of his death, to confer and consult with Nairn,' and rely on him implicitly, saying: “ He has been to me through twenty years or more as a brother, and is as dear to. me as one.” There was no memorandum in regard to what were the terms of Nairn’s trust in the fund, but Nairn says that on the way to Ypsilanti, Traver told him to take what was reasonably due him, and keep the rest in trust for his little girl. He also says that from the spring of 1884 he paid Traver’s lodge dues and assessments at his desire, but never knew that the certificate had been assigned for his benefit till October, as before mentioned.
It is not claimed on either side that this, certificate belonged to Traver as a part of his estate. It is admitted on both sides that he had a power of appointment to change the beneficiary. It is also clear that the beneficiary named in the certificate must take the fund, unless there has been a valid appointment in favor of Nairn. It is claimed, however, that there are two objections to Nairn’s claim:
First, that he is not such a person as could receive a benefit under the rules of the corporation.
Second, that no appointment ever became operative.
The circuit court for the county of St. Clair ordered the money to be paid to Nairn. Mrs. Richardson appeals on her own behalf. The complainant appeals, claiming that certain provisions of the decree are injurious, as changing the conditions on which complainant can be bound.
The constitution of the order, as last adopted in May, 1881, is very explicit that benefits are to be paid, on behalf of a member, “ to such member or members of his family, or person or persons dependent on him, as he may direct and designate by name,” etc. The change of beneficiaries was to' be made by a member, “ while in good standing,” surrendering his certificate, and receiving a new one payable as he shall have directed; “ said surrender and direction to be made on the back of the benefit certificate surrendered, signed by the member, and attested by the reporter under seal of the lodge.” Const. art. 9, § 5.
It appears that under a Kentucky charter, and under the constitution as it stood previous to 1881, the benefits could be made payable to his family, or as the member should direct. This, apparently, would have made Nairn a competent beneficiary, if we can regard these constitutions as controlling the contract. But this benefit is payable by a corporation of the State of Missouri, and the laws of that state very clearly and expressly forbid corporations of this sort from paying benefits to any but the member’s family or dependents. Rev. St. Mo., p. 179, § 972. This prohibition is strengthened by some further provisions, making it unlawful to issue policies of life insurance, or for the benefit of the members themselves in any, shape. Section 973. The restrictions imposed by the laws of Missouri cannot be abrogated or changed by the corporation, and it cannot subject itself to any outside control which will override the laws of its organization as a corporate body.
The intent of the prohibition is clearly to shut out all persons who áre not actual relatives, or standing in place of relatives in some permanent way, or in some actual dependence on the member. While the relations between Traver and Nairn were very intimate, they do not fairly come within the designation of family relations. If there was any dependence, Traver, and not Naim, was the dependent person. But, taking Nairn’s own answer and testimony together, it is shown that he expected, under the alleged arrangement with Traver, to apply this fund, not only to the payment of other debts, but also to payment to himself as a creditor, leaving such .surplus as he chose to leave to one of his own children. The purpose of Traver thus indicated .was not to provide a benefaction to a member of his family, or person dependent, but to use the fund to pay debts — a purpose which is honest, but which is entirely foreign to the benevolent objects of the association, which exclude the member from appropriating the fund to his individual purposes.
The other objection, however, is one which cannot be surmounted. The written contract, so far as it goes, is the measure of the rights of all parties. By the express terms of that certificate, it is provided that Mrs. Richardson shall have the money unless the certificate is surrendered and canceled and a new one issued; and the form of surrender printed on the back conforms precisely to the clause also inserted in the constitution, requiring every surrender and new direction to be signed by the member, and attested by the reporter under the lodge seal, he being the officer into whose hands it must be- placed for transmission to the home office for reissue.
Under this arrangement, the purpose is evident that the corporation shall always be in written contract relations with a member who is alive and in good standing, which ■will show them the identity of the beneficiary to whom they are liable. It is possible — and we need not consider under what circumstances — that when a member has executed and delivered to the reporter his attested surrender, in favor of a competent beneficiary, his death, before a new certificate is rendered, may leave his power of designation so far executed as to enable a court of equity to relieve against the accident. But in the present case, the facts show conclusively that Traver did not mean to have any surrender made until after his death. Nairn was not authorized to open the envelope or handle any of the papers while Traver lived, and Traver retained complete control of them. No one was authorized, while he lived, to take any steps to complete a surrender.
The attestation of the reporter was not a mere ceremony. In this very case, issue is made on the voluntary character and legal validity of Traver’s alleged execution of the various papers. We are not disposed to consider that view of the case. But it is plain that the formality of appealing personally before an officer of the corporation or its lodges, and having the execution seen and attested by such an officer, would be a valuable guard against fraud and forgery, which was not provided for without some intention. In our opinion, Traver never surrendered this certificate, and never attempted to surrender it, within either the letter or the spirit of its conditions, and the right of Mrs. Richardson remains as originally provided- for.
We do not, in reversing the decree, mean to impugn any one’s integrity. We dispose of the case purely on legal grounds, which leave us, in our opinion, no choice in the matter. The contract is one which the parties made on their own conditions, and every one is bound by them.
We do not regard the complainant’s appeal as within the rules of interpleader, and, while we shall not disturb the allowance of $50 made below, we can grant no further costs to it on appeal. The learned argument of the distinguished counsel representing it was instructive, but bore entirely in favor of one of the two defendants.
Mrs. Richardson is entitled to costs of both courts against Nairn, and to a decree for the money in controversy.
The decree below must be reversed, and a decree entered here in her favor.
The other Justices concurred. | [
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Sherwood, J.
The plaintiff brought this suit in ejectment to recover possession of the N. £ of S. E. of section 13, township 8 north, range 15 east, in the county of St. Clair.
The cause was tried in the St. Clair circuit by jury, and the plaintiff recovered. The defendant brings error. Several exceptions were taken upon the introduction of the evidence, and the remainder relate to the refusals to charge, and to the charge as given.
• It appears from the record that the lands were unimproved, unfenced, and unoccupied by any person, and laid in a state of nature, except as some timber had been cut thereon and taken away.
The plaintiff, to establish his title to the land, showed a patent therefor from the United States to Timothy J. Wheaton, dated October 1, 1855; also the record of a deed of the land from Wheaton and wife to Samuel Edison, dated October 5, 1855. This record was objected to as insufficient; that the deed was not entitled to record, — the execution was not witnessed. We think the record of this conveyance, with the evidence relating to its execution and delivery and recording, was properly received in evidence under the previous rulings of this Court: Post v. Rich, 36 Mich. 316; King v. Carpenter, 37 Mich. 369 ; Gaston v. Merriam, 25 N. W. Rep. 614.
Mr. Edison was sworn, testifying to the due execution of the deed, and its delivery, and the recording, also showing the loss or destruction of the instrument; and that Edison bought in good faith, and paid a valuable consideration therefor, does not seem to be questioned.
The record then shows several mesne conveyances, down to Mrs. Nancy Edison, and bn the eighteenth day of July, 1861, Samuel Edison and Nancy Edison, his wife, conveyed the premises in question to James X. Hamilton, which deed was duly acknowledged by both, and the wife, as appears by the certificate of the justice, acknowledged the execution of the deed separate and apart from her husband, as was formerly the custom under the law making such separate acknowledgment necessary.
The record of this deed, when offered in evidence, was objected to on the grounds that such deed conveyed no title to Hamilton; that the wife simply joining in the deed of her husband as his wife, in lands to which she held the title, would not pass the fee to the grantee; that the only interest she could convey by such a deed would be her dower and homestead rights.- We are not able to concur in this view. When the wife joins with her husband in the conveyance of the fee of land of which she is, in whole or in part, the sole owner, she conveys all of her interest therein, though she can only be held liable upon her covenants in such deed to the extent of her sole property conveyed. It is usual, in such cases, to designate in some way in the conveyance the extent of such sole interest, and it is very proper so to-do; but it is not essential to its validity. In this case no such designation was necessary, because the entire property conveyed belonged to the wife, and this, of course, was shown by the record. We think the deed was properly received in evidence, and conveyed the title of Mrs. Edison.
A deed was then offered from Hamilton to Gamble, dated January 21, 1867, of the E. £ of the land in question; also a deed made by the sheriff upon the foreclosure of a mortgage upon the same parcel to Hamilton, dated May 10, 1871. This last deed was objected to because the sale purported to have been made by one of the sheriff’s deputies. This deed was properly admitted. The foreclosure was by advertisement, and the deputy had the right to make the sale: How. Stat. § 8501; Hoffman v. Harrington, 33 Mich. 392.
The plaintiff then offered in evidence a deed of the land in question from Hamilton to Jerry W. Jencks; also the recoi’d of a deed from Jerry W. Jencks to Charles O. Jencks; also a quitclaim deed from Daniel Wheaton, heir at law of Timothy J. Wheaton, to Charles C. Jencks, covering the same premises, and dated the eighteenth day of March, 1881. This deed was introduced to perfect the chain of title which was supposed to be defective on account of the objections taken to Wheaton’s deed made on the fifth of October, 1855, hereinbefore considered, and was objected to because the grantor was not shown to be the only heir of his father.
The deed was certainly competent testimony, and not objectionable on that ground, whatever other objections there might have been, if any, upon other grounds. The plaintiff had the right to put before the jury all the evidences of his title.
After showing a power of attorney, duly executed by Charles O. Jencks to William L. Jencks, to make sale of the property, the plaintiff offered in evidence a warranty deed from Charles C. Jencks and wife to the plaintiff, conveying to him by said attorney the premises in question. This latter deed was claimed to be inadmissible on account of defective certificate of acknowledgment. This objection, however, is not presented in briefs of defendant’s counsel; neither was it pressed upon the argument; and needs no further con ■ sideration by us.
The plaintiff having thus completed the showing of his chain of title giving him the fee of the land, he next offered in evidence a tax deed of the land, made by the auditor general to the defendant, conveying the land in question to defendant, dated March 1,1879, and recorded on thetwentyf'oufth day of the same month.
The plaintiff also offered evidence tending to show that the defendant claimed title to the property in question under this tax deed, and an interest therein. This deed and testimony were objected to by defendant’s counsel. We think it was admissible for the purpose offered. Section 7791, How. Stat.. provides that if the lands are not occupied the action of ejectment must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein. The evidence that the defendant had a tax deed of the premises, had put it on record, and claimed an interest in the premises under it, which he refused to release to the plaintiff when requested, was sufficient to enable the plaintiff to maintain ejectment, when the land was wholly unimproved, unfeneed, uncultivated, and unoccupied, as this was. The defendant’s claim was a hostile and adversary one to the rights of the plaintiff, and he had the right to maintain this under the statute, which was intended to meet such cases: Anderson v. Courtright, 47 Mich. 161; Hill v. Kricke, 11 Wis. 442; Harvey v. Tyler, 2 Wall. 328; Hoyt v. Southard, 58 Mich. 434; Hanson v. Armstrong, 22 Ill. 442; Langford v. Love, 3 Sneed, 308; Banyer v. Empie, 5 Hill, 48.
Neither do we think the plaintiff’s direction to have the property assessed to him, and his payment of the taxes assessed upon the same, nor his occasionally hauling logs or wood from the premises, would change the plaintiff’s right to bring suit. These acts would only be in affirmation of the title under which he claims, and adverse to the interest and acts of the defendant.
The plaintiff introduced evidence showing the defendant’s tax title invalid.
It was claimed that the acts of the plaintiff showed him in the actual occupancy of the premises at the time the suit was commenced, and therefore his suit must fail. The testimony upon both sides upon the question of occupancy was submitted to the jury very fairly in the following charge:
“ If you are satisfied from the evidence that the plaintiff is owner in fee of the land, and also conclude that when this suit was brought the land was not actually occupied by any one, but theMefendant claimed title thereto or an interest therein by virtue of such recorded tax title, then your verdict shall be for the plaintiff; but if you find otherwise, it will be for the defendant.”
The verdict was against the defendant, and this we cannot disturb. The decision involved questions of fact upon which there was testimony given upon both sides.
Ve find no other error assigned needing discussion. The judgment at the circuit must be affirmed.
The other Justices concurred. | [
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] |
Morse, J.
This is an action in assumpsit, brought to recover about 253.000 feet of pine logs, at five dollars per thousand.
Plaintiff alleges that he sold the logs, at the price above stated, to defendant, through one Daniel M. Adams, claimed to be acting as agent of the defendant. He testifies that he contracted with said Adams for the sale to defendant of all the pine timber that should be cut from a certain piece of land, and which Mr. Cody, agreed upon as the scaler, would accept, at five dollars per thousand feet, delivered in the Muskegon river, and that he was to receive pay as fast as he got 100,000 feet afloat.
He also claims that he hired one Adolphus Berry to put the logs in, and was to pay him at the rate of three dollars per thousand for the job.
The defendant claims that he did not authorize Adams to contract for or purchase the logs on his account; that Adams was not his general agent for buying logs, but was the agent of the Newaygo Company, a corporation then organized and existing under the laws of this State, of which company defendant was president and general manager; that Adams-did not buy the logs of plaintiff,-but purchased them of said Adolphus Berry, who claimed to have bought the timber of plaintiff; that Adams bought the logs for the Newaygo Company, and that they were delivered to and received by that company, who were to and did pay Berry three dollars per thousand in full for his share, and to credit and did credit, by Berry’s direction, with plaintiff’s consent, two dollars per thousand upon their boobs to plaintiff for his share; that plaintiff traded at the store of the company a portion of his account, leaving at the time of the trial a balance upon the company’s boobs in favor of plaintiff of $198.39, which the company was ready and willing to pay.
Upon this issue the case went to the jury, who found a general verdict for plaintiff in the sum of $1,343.24, and also-found specially, in answer to questions propounded by plaintiff’s'counsel, that the sale of the logs in question was made by the plaintiff to the defendant, and that Adams bought the' logs for the defendant.
Numerous errors are assigned in relation to the admission of certain testimony on the trial.
The plaintiff was allowed to testify that a certain conversation which he had some two months before the alleged sale of these logs with defendant (which conversation he had detailed to the jury) assisted him in forming an opinion that Adams was acting as the agent of defendant in buying the logs in question. The answer was given in answer to a direct question put by his counsel, against objection.
The jury were the proper judges as to what effect-this conversation had, or ought to have had, upon plaintiff as to inducing him to believe Adams to be the agent of defendant; and it was error to permit plaintiff to state such effect.
The testimony of John Kinney that he sold defendant some logs in October, 1883, two months after the contract claimed in this case, could have done the defendant no harm, as he himself admitted buying some logs during that year on his own account. It was not relevant to the issue, but it could have affected in no way the question in dispute, to wit, the agency of Adams, and was therefore a harmless error.
The witness Adams should have been permitted on redirect examination to have fully answered the following question:
“Question. Weil, in relation to the Hoag & Gidley contract, and that Bonner contract, how was it that they came to be made with D. P. Clay instead of the Newaygo Company ?”
The matter of these contracts had been drawn out by plaintiffs counsel, and defendant was manifestly entitled to a full explanation of them. We are not sure but he was afforded the opportunity, however, as the record is very blind, and not as full as it ought to have been on this subject. It seems the question was at first denied by the circuit judge, but after-wards he said:
“As I understand that these contracts were executed by Mr. Adams, and it is claimed by special authority or special arrangement, and that ho had no general authority to make the contracts, and they wish to show that, let the jury have the testimony on both sides.”
The witness then testified in relation to the execution of some other contracts, but gave no evidence, as appears from the record, as to the contracts mentioned in the question. It appears to us, however, that, under the language of the court above quoted, permission was granted him to do so, and that defendant’s counsel miglit have availed himself of the privilege had he seen fit to do so.
The defendant offered in evidence the deposition of one William II. Sharpnack, taken pursuant to section 7475 of Howell’s Statutes, before Paul Brown, a notary public in and for Cook county, state of Illinois. At the taking of said deposition both parties to this suit appeared by their respective counsel. There was no certificate attached to the deposition showing the official capacity of the notary, as required by the statute. The deposition was received and filed June 2, 1S85. The trial commenced June 9, 1885, but no showing was made that any notice of the reception of the deposition -was served upon the counsel for plaintiff under rule 51 of the circuit court.
The deposition was properly rejected. The proceeding being in derogation of the common law, and the deposition being admissible only by reason of the statute, its terms must be complied with. The argument that the counsel for plaintiff attended upon the taking of the testimony is not tenable. Such attendance could not be regarded as a waiver of any requisite of the statute to be complied with in the return of the deposition. It is also urged that the notarial seal of the officer affixed to his return is a sufficient compliance with the object and purpose of the statute; but the record does not show tliat any such seal was affixed.
Objection is also made to the evidence given in rebuttal of plaintiff, Adolphus Berry, and one Louis Topping, as to the contract between Berry and plaintiff in regard to putting in the logs. This testimony was offered and given, it is claimed, to rebut the claim made by defendant that Berry bought the logs of plaintiff, and to show that Berry did not so buy the logs, but entered into a contract with plaintiff to put them in the river at three dollars per thousand, as claimed by plaintiff. Defendant was not present at this conversation, nor was Adams, who purchased the logs.
We do not think this evidence was admissible. The issue was whether Adams bought the logs of Berry or of Thompson. It was entirely immaterial what talk or agreement Berry and plaintiff had, not in the presence of Adams or defendant, and unknown to them. The defendant offered and gave no evidence to disprove this alleged arrangement between plaintiff and Berry, to which plaintiff testified in his primary case. He contented himself with testimony tending to show that Berry sold the logs as his own.
This proof of a contract between plaintiff and Berry tended to rebut no part of the case made by defendant, and, taking place without the knowledge of defendant or his alleged agent, could have no binding force upon him. Yet the jury were allowed to use the fact of such an agreement as evidence that defendant did not purchase of Berry, but of plaintiff.
Such was the object and manifest effect of the testimony. The circuit judge stated that the evidence was allowed for ■the purpose of showing that the plaintiff did not sell the logs to Berry. We can see no relevancy in admitting such proof, unless the jury were to infer from it that, because the plaintiff did not sell to Berry, therefore Berry could not have sold to Adams, as claimed by defendant.
The defendant claimed that Berry sold the logs pretending to own the timber, and this talk between the plaintiff and Berry, without the knowledge of defendant or Adams, had no tendency whatever to prove that Bei'ry did not sell them as claimed by defendant.
It was also error to allow the witness Berry to testify how much the plaintiff had paid him upon his contract for putting in the logs. It had no relevancy to any legitimate issue in the case, and was entirely immaterial; and we cannot say that its admission may not have prejudiced the jury against the defendant’s case.
Objections are made to the charge of the court, but upon a careful examination of the defendant’s requests as refused, and the instructions of the circuit judge taken as a whole, we can find no error.
The entire charge was a very fair and proper one. It set ■out plainly and clearly the issues between the parties, and the respective claims of each. It sufficiently stated the requisites of a contract as to the meeting of the minds of the parties contracting, and that its terms must be fully understood alike by each. It placed the burden of proof .upon the plaintiff to prove the authority of Adams to act for the defendant.
In speaking upon this branch of the case, the circuit judge, correctly, as we think, under the facts, instructed the jury that if the defendant, previous to the sále of the logs, told plaintiff that Adams was his agent for buying the logs, and plaintiff also knew of Adams buying logs of other parties for defendant prior to or about this time, and not too far away, then the plaintiff would have reason to believe that Adams had a right to buy logs and make contracts binding on the defendant.
It is claimed by defendant’s counsel that there was no evidence to support this part of the charge; but the plaintiff testified, substantially, that defendant told him, about two months before the sale in this case, that Adams was his man for buying logs, and also that he (plaintiff) knew about the-time of his sale of Adams buying logs for defendant of different parties.
The circuit judge also instructed the jury that if Berry sold the logs to the Newaygo Company, or if they were delivered to that company, it understanding that it was buying the logs of Berry, and paid Berry three dollars per thousand for them, and credited the plaintiff with two dollars per thousand, and plaintiff kept on delivering the logs,, knowing all about this, he could not complain here of defendant; or, if he received any pay upon the logs from the Newaygo Company, he could not come into court and claim-lie was dealing with defendant.
The court seemed to cover fairly and fully all the points in controversy, and to give in his general charge substantially all of the requests of the defendant’s counsel that they were entitled to under the law as applicable to the case.
While the verdict of the jury may seem to have been-unwarranted by the evidence, as claimed by defendant’s counsel, we do not think the instructions of the court below were at fault in bringing about such a result.
It does pretty clearly appear, from the whole testimony,, that none of these logs were ever delivered to the defendant,, or were received by him, but were all received and handled by the Newaygo Company, and the judge so stated to the jury. It is also manifest from the record that Berry, who cut and put the logs afloat in the Muskegon river, dealt entirely with the company, and does not deny receiving his three dollars per thousand in full from it. There is no evidence that he had any dealings with defendant. The logs- were scaled by Cody, the scaler agreed upon by Adams and the party with whom he contracted, be it either the plaintiff or Berry, and the scale headed as follows: “ S. D. Thompson, Pine. Scale of Logs put in by P. B. Berry for Newaygo Company.” Nor is it very clear that Thompson did not deal with the Newaygo Company as to his pay instead of with the defendant.
But the plaintiff in his evidence testified that he sold the logs to Adams as the agent of Clay; that he never knew of any credit being made upon the books of the Newaygo Company to him at two dollars per thousand until he went to draw his pay ; and that he knew nothing about the Newaygo Company’s purchasing the pine, nor defendant’s claim that it bought the logs of Berry, until after the commencement of this suit.
And although, as the record is presented to us, we should have found a different verdict, the weight of the testimony was for the jury, and the circuit judge would not have been warranted in taking the case from them; nor is the whole evidence set forth in the record.
For the errors enumerated, the judgment of the court below is reversed and a new trial granted, with costs of this Court to the defendant.
Campbell, C. J. and Sherwood, J. concurred. Champlin, J. did not sit in this case. | [
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Morse, J.
These two cases were argued and submitted together, and involve nearly the same state of facts.
The first bill is filed to foreclose a mortgage executed by the defendant Wadsworth to one Hiram Lewis; and the •other to foreclose a mortgage given by Wadsworth to one Isaac Wan Kersen.
In the summer of 1876, Wadsworth bought the land which is covered by these mortgages, — part of it of Lewis and a portion of Wan Kersen. He executed purchase-price mortgages upon the two parcels, — one to Lewis upon the land bought of him, for $2,074, and one to Wan Kersen upon the other piece, for $3,000.
He then sold both parcels to the Eagle Portland Cement Company, subject to these mortgages, the land becoming a part of the company’s plant. This company was composed of the complainant, who resided in Kalamazoo, where the plant was located, and other parties, most of whom resided in Chicago, Illinois.
The corporation was organized and existed under the laws of the state of Illinois.
On the twenty-fifth day of January, 1878, this corporation, being indebted to various parties, elected the complainant its president, and voted to mortgage its plant in the sum of $25,000. It voted to issue, and did issue, bonds of $500 each for the above amount, and executed its mortgage upon its real estate and property to one George L. Otis, as trustee for the holders of said bonds, and to secure them ; the mortgage being in form an Illinois trust deed.
The corporation at this date was owing Bush & Patterson, the complainants in the second bill, who were copartners in business, the sum of $3,359.40 ; also some floating debts in Kalamazoo; about $12,000 in Chicago; and the amount of these Lewis and Wan Kersen mortgages, less payments of $690; and one year’s interest upon the one to Lewis; and $1,000 and $300 interest upon the one to Wan Kersen,— making in all a total indebtedness of about $21,000.
Some of the stockholders were indorsers upon the Chicago indebtedness, and it was agreed that Bush and the others should take a certain amount of these bonds towards the company’s indebtedness to them, or to indemnify them for their liability as indorsers. The complainant Bush took $2,500 of the bonds, and some of the others also took some, and paid the amount of the same on the Chicago indebtedness. The indebtedness at the latter place was nearly paid in this manner.
The business of the company not prospering as expected,, it is claimed by the complainant Bush that by an agreement between himself and the other directors, and at their request, he was authorized to run the works, with the understanding that he should do the best he could with the business, and if any profit was made, divide the same among the stockholders, who were also to share in the expenses, and the losses, if any.- This claim is supported by the proofs. Thereupon, commencing about February, 1878, the complainant Bush, or Bush & Patterson, it is immaterial which, carried on the business of the company until the foreclosure of the-Otis trust deed and sale of the property thereunder as here-, inafter stated.
The complainant Bush further claims that when the payments of installments of principal and interest, during this-time, became due on these two mortgages, in order to protect the interests of the trustee, Otis, and himself as holder of a-portion of these bonds, he was obliged to pay, and did pay, upon the Lewis mortgage the sum of $1,671.90, and upon theYan Kersen mortgage the sum of $1,200, whereby he became subrogated to all the rights of said mortgagees, as far as these amounts are concerned.
It is admitted that he paid these amounts, but not out of his own or Bush & Patterson’s money, as he claims. The Improved Eagle Portland Cement Company, which defends, acquired the property subsequently, and asserts that these payments were made with moneys belonging to the Eagle Portland Cement Company, and were paid by Bush as the-president of that corporation.
March 1, 1882, at a foreclosure sale of the premises under the Otis trust deed, the land covered by the Lewis and Yan Kersen mortgages was bid in by one John M. Boundtree, who conveyed to the Improved Eagle Portland Cement Company, the corporation defendant in these suits.. This defend ant also holds a deed from the old corporation, the Eagle Portland Cement Company.
In the Otis foreclosure proceedings, the old corporation, Jeremiah P. Woodbury, Allen Potter, and Frederick Bush were made defendants. Woodbury was made a party on the ground that he owned the Van Kersen mortgage, Potter because he was supposed to hold the Lewis mortgage, and Bush for the reason, as therein stated, that he claimed to have-paid out moneys on these prior mortgages for and in behalf of the trustee, Otis. And the decree in that case expressly states and finds that the lands to be sold thereunder are subject to incumbrances which are prior to the trust deed, as follows : To said defendant Woodbury, as holder of Van Kersen mortgage, $1,451.36; to holder of Lewis mortgage, $873.12;- and to Frederick Bush, for moneys advanced upon said prior' mortgages, $3,621.90 ; in all, $5,946.38.
The defendant corporation acquired its title with full knowledge of this decree, and by sale under it.
January 10, 1883, the complainant Bush acquired, by a duly-executed assignment, the note and mortgage given by defendant Wadsworth to Lewis; and on the same day and year the Van Kersen note and mortgage were duly assigned to the complainants, Bush & Patterson. Bush & Patterson also transferred their interest in the Lewis mortgage to Bush.
The defendant corporation in its answers claims, as before stated, that the amounts paid by Bush, or Bush & Patterson, upon these mortgages, before assignment, were paid out of the moneys of the Eagle Portland Cement Company, and as the agent or agents of said company; that the defendant corporation is the assignee of all the property, assets, and choses in action of said Eagle Portland Cement Company, either legal or equitable; and that said complainant Bush had large sums of money in his hands belonging to said old corporation, and it was his duty to apply said funds in payment of these mortgages, and that he had no right to take assignments in his name, or in the name of Bush & Patterson; and that as between complainants and the corporation defendant, as assignee of the old corporation, the mortgages are in fact fully paid and satisfied, and ought to be discharged; that said bonds, secured by the Otis trust deed, were issued to pay the indebtedness of the Eagle Portland Cement Company, including these mortgages; that Bush took and disposed of twenty-two of these bonds, amounting to $11,000, for which he never paid said company, nor accounted to it for the price of the same; nor has he ever accounted for them to the defendant corporation, its successor.
This defendant claims the benefit of a cross-bill by its answers, and prays for an accounting, claiming an indebtedness, over and above the mortgages, from Bush to the corporation.
The decrees below dismissed the bills of complainant without prejudice to the right of either or any of' the parties to file a bill for an accounting in relation to the-matters involved, in said suit.
We are satisfied from the proofs that the complainants are entitled to a decree in each cause for the amount due on the note and mortgage in each case. There is no showing that the complainant Bush was ever obligated by his connection-with the old corporation to pay these mortgages. Under all-the evidence in the case, charging him with the twenty-two-, bonds at $11,000, the old corporation was still in his debt at-the time he took the assignments of these mortgages. Most,, if not all, of the stockholders of the present company were members of the old corporation, and have profited by the foreclosure of the Otis trust deed — at least in the amount of these two mortgages, if not more. The plant was sold expressly subject, by the decree under which the sale wai made, to these mortgages, and also the amount that Bush had paid upon them before the decree was taken. It is natural to suppose that the bidder, Roundtree, who was in fact the agent of the new corporation, obtained the property at public sale with reference to these incumbrances, and at so much less a figure than he would had it been clear and unincumbered.
The evidence goes to show that the non-resident stockholders put the whole burden of this failing business upon- The shoulders of Bush; that some of them refused or neglected to take the share of the bonds they agreed to when they were voted ; that the bonds could not be sold in the market at fifty cents on the dollar; that Bush & Patterson made their own note for $5,000 to keep the concern in funds; that Bush was finally urged by the others to take the remaining bonds and do what he could with them ; that he took them upon his ■own hands, and credited them to the company, in his expense account with it, at their face value; yet it does not appear that there was ever a time when the corporation was not indebted to him, or his firm, even charging him with the full par value of the bonds. He finally sold the bonds at twenty-five cents on the dollar, admitted to be their market value at the time of such sale, to one of the stockholders of the old corporation, who was also a member of the new corporation.
The complainant Bush insists that he never agreed to take these bonds at their face value; nor is there any testimony showing that he so agreed, save the fact of his charging them against himself in his debit and credit account against the old company.’
It seems from the evidence before us that Bush has lost more in this transaction than the other stockholders, and has an equitable claim for a large amount against the old company.
The testimony is very meager and uncertain as to the real state of the accounts between him and the Eagle Portland Cement Company ; but from what does appear from Exhibit Q, introduced by the defendant, and the evidence of Bush, no one else seeming to know anything about it, it is apparent that Bush, instead of using the funds of the company to make the payments upon these mortgages, for which he claims the right of subrogation, was obliged to and did pay the same with his own money, or the money of Bush & Patterson, and for the want of any funds in his possession or within his reach belonging to said company.
If the stockholders of the corporation defendant, who were stockholders and directors of the old company, know anything about the affairs of such old company, or as to the state of its accounts with the complainant, they have certainly failed by the record to acquaint us with their knowledge. The only intelligible testimony we have is that of the complainant and the Exhibit Q, which is a copy of complainant’s-account. His evidence is corroborated by what facts and circumstances appear outside of his own statements. He had the confidence of the Chicago directors, as they admit, and the burden of the whole business was put upon him, and the-whole proofs show that he honestly and faithfully endeavored to fulfill the trust. He used his own credit to buoy up the business, and was a great loser thereby. He has the right to be compensated for the expenditures made to protect the company as well as himself. It was necessary that he should make the payments upon these mortgages, not only to save the property of the company, but his own interest as a bondholder and stockholder. We are satisfied that, in effect, he made these payments out of his own moneys. The fact that he charged these items of payment against the company in hope that the business might pay enough to reimburse him, does not change his equities.
Although it is not here necessary to decide that the clause in the Otis decree recognizing the complainant’s lien upon the mortgaged premises for these payments, is binding upon the defendant corporation as an adjudication of his claim to subrogation, yet, when this corporation became the owner of the property by a purchase under said decree, and by a: sale of the premises expressly subject to this claim, it certainly can urge no equitable defense against his right to a decree for the amount of these payments against the premises, save that the payments were made with the funds of the company, or that Bush was indebted to the company, and therefore in duty bound to pay them for the company. And in these defenses it has signally failed in its proofs.
The decrees of the circuit court for the county of Kalamazoo, in chancery, are reversed, and new decrees will be entered here in each case, in accordance with this opinion and the prayers of the bills of complaint; the complainants to recover costs of both courts.
The other Justices concurred. | [
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Morse, J.
The respondent was convicted in justice’s cour.t of having’ been drunk and intoxicated in an assemblage of people, in the dwelling-house of one Cyrus Smith, in the township of Bingham, in the county of Clinton, “ collected together for the purpose of a social dance,” contrary to section 7 of act No. 259, of the Session Laws of 1881. How. Stat. § 2276.
Upon appeal to the circuit court the question of the constitutionality of this section was properly raised by his counsel. The circuit judge held the section to be constitutional, and the respondent was again convicted.
The case comes to this Court on exceptions.
It is claimed that under section 20 of article 4 of the Constitution, which provides that “ no law shall embrace more than one object, which shall be expressed in its title,” this section is invalid and void. The title to act 259, Laws 1881, reads:
“ An act to regulate the sale of spirituous, malt, brewed, fermented and vinous liquors; to prohibit the sale of such liquors to minors, to intoxicated persons, and to persons in the habit of getting intoxicated ; to provide a remedy against persons selling liquors to husbands or children in certain cases; and to repeal all acts, or parts of acts inconsistent herewith.”
Section 7 of the act is as follows :
“ Any person who, by false pretense, shall obtain any spirituous, malt, brewed, fermented, or vinous liquors, or who shall be drunk or intoxicated in any hotel, tavern, inn, or place of public business, or in any assemblage of people, collected together in any place for any purpose, or in any street, alley, lane, highway, railway, or street car, or in any other public place, shall, on conviction thereof, be punished,” etc.
This section is clearly repugnant to the constitutional provision above quoted. By no reasonable construction can the purpose of this section be said to be embraced within the title of the act. The punishment of a person for being drunk, without reference to where he obtained the means of intoxication, can have no possible connection with the object of the act as set forth in its title.
The whole aim of the statute is to regulate and prevent the sale of liquors, and to provide a remedy for those who are injured by illegal sales.
Under the provisions of this section 7, the offense is general against all persons who may be drunk or intoxicated in certain places. It is not aimed at liquor sold under this statute to the person offending. He may be as drunk as he pleases in his own dwelling or office, if a crowd be not assembled, upon liquor sold legally or illegally under the act, and he is not amenable to this section; but if he imports his liquor from abroad, and becomes intoxicated upon it in any of the prohibited places, he is liable to punishment.
The provisions of this section, if faithfully executed, can have no bearing upon the expressed object of the statute, having no tendency to regulate or prevent the sale of liquors, or to provide any remedy to those injured by such sale. It is nothing more nor less than the insertion, in the body of the act, of a clause creating and punishing a misdemeanor entirely foreign to the ostensible purpose of the statute as entitled.
No person reading the title would dream of any such provision being contained in the act. If allowed to stand, the beneficent purpose of the Constitution is nullified and set at defiance.
The section in the Constitution prohibiting legislation of this character, is a wise and wholesome one, intended to prevent legislators from being entrapped into the careless passage of sections and clauses in bills of which the title gives no intimation : People v. Kurtz, 33 Mich. 281.
The propriety of such an inhibition is apparent to all, and it must be observed and protected by the courts.
The judgment of the court below is reversed, and the respondent must be discharged from custody.
The other Justices concurred.
Repealed by act. No. 172, Session Laws of 1887, p. 180.
Act No. 4, Session Laws of 1887, enacts
“That any person who shall be drunk or intoxicated in any hotel, tavern, inn or place of public business, or in any railway car, or street car, or in any street, alley, lane, highway, or railway, or other public place, or in any public assemblage of people, shall, on conviction thereof before any court of competent jurisdiction, be punished by a fine not exceeding twenty dollars, and the costs of prosecution, or by imprisonment in the common jail of the county notexcceding thirty days, or by both such fine and imprisonment in the discretion of the court.” | [
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Morse, J.
This was an action of replevin, commenced in the circuit court for the county of Alpena, to recover possession of a certain boiler and connections, and some 300 fire brick. The writ and declaration are in the ordinary form. The plea was the general issue, with notice that the defendant, as agent for the owners of the propeller Oconto, held possession of the boiler, etc., by virtue of a lien for freight for transporting the boiler from Port Huron to Alpena. The verdict was for plaintiffs for six cents damages. Judgment was entered on the verdict.
The plaintiffs claimed that late 'in the fall of 1883, they contracted with Capt. McGregor, master of the steamer Oconto, to take the property mentioned in the writ from the dock at Port Huron, and deliver the same at plaintiffs’ dock, in tlie city of Alpena, for the sum of $100 ; that the boiler* and other property were brought from Port Huron to Alpena by the Oconto, but,on its arrival, Capt.McGregor, as master of the vessel, demanded the payment of $150 as freight before unloading; and, on the refusal of plaintiffs to pay more than $100, he delivered the property at Davis’ dock, on the opposite side and further up the river. Plaintiffs then demanded the property of Davis, the defendant, and Davis refused to deliver the same without the payment of $159, — $150 for freight and $9 for dockage. Plaintiffs tendered the dockage charges, and, after such tender and Davis’ refusal, brought this action of replevin.
The defendant claimed that Capt. McGregor made no such contract, but that he told plaintiffs he would bring the boiler up if he came on another trip ; that he did not agree to carry it for any price, but told them he would not be unreasonable in his charges. The fact of his requiring $150, and refusing to deliver it at plaintiffs’ dock without the payment of that sum, is not disputed, nor that he unloaded it at Davis’ dock with instructions to Davis not to deliver'it unless the $150 was paid.
The first question, then, to be settled on the trial, was as to-the contract between' the parties, — the plaintiffs and Capt. McGregor. This was submitted in a special question to the jury, who found the contract to be as stated by the plaintiffs.
The court instructed the jury, among other things, as-follows:
“ If you find that the captain of the Oconto agreed with these plaintiffs that he would bring up the boiler in question to this port for the sum of $100; and if you find the further fact that after that steamer arrived at this port he refused to-deliver it to them for less than $150, then the plaintiffs would have been v entitled to retake the possession of the boiler from the defendant.”
And that if they found a demand was made upon the defendant, or his agent, the plaintiffs had a right to maintain their suit; and that if they found these facts, their verdict should be for the plaintiffs. .
It is urged that this portion of the charge was error, on the ground that the defendant, acting as agent for the captain of the Oconto, was entitled to a tender of the freight, for which there existed a lien upon the boiler, and no such tender was-made before bringing suit.
The evidence shows, without much variance, that while the Oconto was landed at the Davis dock, one of the plaintiffs saw Capt. McGregor, and asked him if he was going to land the boiler at their dock. The captain replied that if they paid the freight, he would. Plaintiffs told him they would give their check for $100 if he would land it there. The captain refused to do it for less than $150, and unloaded it at the Davis dock.
The question arises, therefore, under the plaintiffs’ proofs, the undisputed fact of the refusal to deliver at plaintiffs’ dock for less than $150, and the special finding of the jury that the contract was to deliver it at $100, if the plaintiffs were bound to make a formal tender, money in hand, of the $101) before they were entitled to the boiler. In other words, did the Oconto have any lien upon -the boiler for freight^ which must be released by payment or tender before the conditions of the contract of carriage had been fulfilled?
If the contract was as plaintiffs claimed, and the jury specially so found, then the captain of the Oconto did not perform his contract, and under all the authorities was not entitled to his lien. It was not sufficient that the boiler was brought into the port of Alpena. The contract called for the delivery of the boiler at the plaintiffs’ dock, and the conveyance to Alpena was not enough, without the delivery, or offer of delivery, at the place specified : Fitch & Gilbert v. Newberry, 1 Doug. 15; Abb. Shipp. § 406; Liddard v. Lopes, 10 East. 526 ; Tirrell v. Gage, 4 Allen, 245, 252; Aug. Carr. 5th Ed. § 400 ; Burrill v. Cleeman, 17 Johns. 72.
A partial performance is not sufficient, unless delivery be dispensed with or prevented by the owner: Palmer v. Lorillard, 16 Johns. 356.
This is not the case here. The plaintiffs averred their willingness to pay the sum fixed in the contract, if landed where it was agreed to be delivered; but the fault was in the master of the Oconto, who refused to perform his contract unless he was paid $50 additional. lie did not deny that the contract was to land the boiler at plaintiffs’ dock. Indeed, lie was ready to do so if lie could get his additional $50.
Under the special finding of the jury, which must govern, the defendant’s principal was clearly wrong, and no tender of freight was necessary. The dockage charges being paid or tendered, the plaintiffs were entitled to the boiler, and, upon the refusal of possession, could maintain replevin. There was therefore no error in this instruction.
The court also charged the jury, that if they found no such contract existed as claimed by plaintiffs, and that no price was agreed upon for the carriage of the boiler, then, if they found that the sum of $150 was an unreasonable compensation for the services of the Oconto, and the captain demanded that sum before the delivery of the property, the verdict should be for the plaintiffs after demand.
This is also assigned as error. As the jury found specially that there was a contract to carry and deliver the boiler for $100, the question as to the charge of $150 being reasonable or unreasonable was entirely out of the case, and the instruction complained of had no possible bearing upon the verdict, and therefore did the defendant no harm.
There being no error in the record, the judgment below is affirmed, with costs.
The other Justices concurred. | [
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Campbell, C. J.
Carmody sued defendants in the circuit court for the county of Charlevoix, to recover for the value o'f a steam-engine, and machinery for sawing and similar purposes, and he recovered judgment for the amount claimed. The suit was defended on two chief grounds:
First, that the property was subject to claims beyond what he represented, and that he did not fulfill a part of the agreement to work for the company; and,
Second, that the contract was not individual, but was made on behalf of a corporation known as the Northern Manufacturing Company.
Several assignments of error are alleged, which are practically disposed of by the findings of the jury on questions which were submitted at defendants’ request, and in fact as well as presumably against them as proponents, based on testimony open to the jury to consider.
Plaintiff’s claim, is, that in July, 1883, he owned the property in question, subject to a lien in favor of his vendors, Messrs. Chandler & Taylor, of Indianapolis, for two notes, of $725 each, and interest, one of which he had arranged with a firm named Wilcox & Co. to pay, and of which full1 payment was delayed by non-payment of a check, and the other still due. He sold the engine and machinery, as he claimed, and as the jury found, to defendants, dealing with' Harry Powers in their behalf, for $2,700, which was to be paid by their assumption and payment of the last-named note, and the delivery to him, thereafter, of $2,000 of paid-up stock in a company which defendants contemplated organizing, on a basis which would make the stock worth its face. There was a conflict of testimony whether or not he . agreed to serve the proposed company at fifty dollars a month, but as no time of service was specified this is not material, and if plaintiff was in default, it cannot be claimed that such a default, made after the delivery of the property, could avoid the contract itself or furnish more than a counter-claim for damages. The charge asked, that it would avoid the contract, cannot be supported on any ground. And the same defect exists concerning the charge asked, that if the machinery was subject to any larger lien than was represented, plaintiff had no title which he could convey, and could not recover. lie did not claim to transfer an absolute title, but merely one subject to a lien specified. He claims he fully explained how matters stood. But it cannot be insisted that no value passed, and it is not shown any damage followed or that defendants had to pay more than was stipulated.
The only serious controversy was, whether plaintiff dealt with defendants as individuals or as a corporation. It was not necessary that they should be partners, if they dealt jointly, and as the jury have found that they were not partners, and that they did contract personally with plaintiff, the only question is whether any charge was given or' refused by the court, which misled the jury.
Plaintiff swore positively that he did not deal with defendants as a corporation or supposing them to be such. The contract as he states it, was with these individuals who contemplated forming a corporation in future. The defendants, who claim the transaction was on behalf of the company, did not take the first step necessary to form a corporation, which is the acknowledgment of the articles, until some time after the sale. The jury expressly negatived, not only the existence of the corporation and its doing business at the time, but also plaintiff’s dealing with it at all. They found expressly that he dealt with defendants individually, and neither as a partnership nor as a corporation; and we do not see very clearly how, under this finding of fact, it becomes important to know what the law would have been had he dealt otherwise.
But we do not think that there is any room in such a case as this for the doctrine of estoppel as applied to corporations defacto. We had occasion to consider this somewhat in Doyle v. Mizner, 42 Mich. 332. An agreement with individuals, that when they become incorporated they will give plaintiff a certain amount of paid-up stock, cannot on any rule of law be considered as a dealing with the corporation itself, or as one which would bind the future corporation when organized. It is- possible there may be cases where an existing organization becomes incorporated bodily, but we have no statute which allows manufacturing companies to become incorporated except by the action of separate individuals, acting in their individual capacity and acknowledging their articles. Any bargain made here which looks to a future incorporation must necessarily be a personal one.
We do not deem it necessary, as already suggested, to consider the assignments separately. They are all disposed of by the special findings.
The judgment must be affirmed.
The other Justiees concurred. | [
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Champlin, J.
The plaintiff brought an actiop of trespass against the defendants jointly. The declaration is in two counts. In the first the plaintiff alleges that on the twenty-fifth day of November, 1882, while plaintiff was riding on .a public highway in a buggy, the defendants, with a certain team of horses and wagon, then and there in their possession and under their control, with force and arms drove said horses and wagon against said buggy, thereby breaking the same, and throwing the plaintiff to the ground with great violence, and thus injuring him, etc. The second count alleges the same injury committed in the same manner, but setting out more in detail the special damage which he sustained thereby.
On the trial, the plaintiff gave testimony tending to show that he was traveling over the public highway from Dowagiac to La Grange, with a single horse and buggy, and overtook the defendants. Each was driving a double team attached to a heavy lumber wagon. Engle was ahead, and Lilly about four rods behind. They were going south. At the point where he came up to them there were two traveled tracks. The east track was the most traveled, and was the one defendants were in. Plaintiff took the west track, and started to pass by at a speed of a mile in four or four and a half minutes. As he passed defendant Lilly he spoke to him, and immediately after passing, and as he was about to pass Engle, he says he heard Lilly call out to Engle to “ run him, — run round him.”
At the first exclamation plaintiff turned his head, and saw Lilly make a forward motion with his uplifted hand, and at the same time calling out: “Bun him, or run round him.” At the same instant the team driven by Engle started to run. Plaintiff says he had gotten nearly past Engle, but not wishing to run .with him he reined his horse to the right, and nearly stopped him, when the rear wheel of Engle’s wagon passed upon the inside of his hind buggy wheel, and capsized plaintiff’s buggy, and threw plaintiff to the ground with such violence as to greatly, if not permanently, injure him. The wagons collided with such force as to break plaintiff’s wagon, bend the axle forward, and leave the marks of the defendant’s wheel upon the inside of the buggy wheel from the felloe to the hub.
The place where the accident happened was near the point where the two tracks come together, but there was abundant room there for teams with vehicles to pass without interference with each other.
The plaintiffs contention is, “ that the trespass was willful on the part of both defendants; that if they did not intend to do him a physical injury, they intended to run him out of the road, and break or upset his buggy.”
Engle had been employed by defendant Lilly as a laborer upon his farm, but his term of service expired the day before the injury'to plaintiff; and on that day, in order to get money with which to pay Engle, Lilly hauled two loads of wheat to Dowagiac to sell, and Engle drove one of the teams. It appeared in testimony that one of the horses of this team belonged to David Lilly, the father of defendant Lilly, andi it was shown that this horse was nervous, and when suddenly seared starts right off quick, and if a team comes up suddenly behind them they both will start.
It was on their return home that the collision occurred. Lilly testified, and denied saying to Engle to “ run him— run round him ; ” but that he did call to Engle to look out for his team; “take up! hold on !” and that when Pigott drove up, the team jumped, and the hind wheel struck Mr. Pigott’s buggy; that Pigott turned to the right, and as he turned the wagon wheel struck the .wheel of his buggy. Engle testified that he heard Lilly halloo, and turned partly round to ascertain what he said, but before he could do so the horses started; and he saw a man at his right, who it was he didn’t know at the time, and he went a short distance, and turned to the right, and he -supposed he stopped, and he passed on. The witness was asked: “Did you understand at that time that there was a direction given you by Mr. Lilly ?” “ Did you have it in your mind at that time to make the horses run ?” These were objected to and excluded by the court as entirely improper. The witness was then asked: “ Did you have it in your mind at that time to make the horses go off to the right of the track they were in ?”• This was also excluded for the same reason.
These rulings are the subject of the second, third, and fourth assignments of error; but these errors are not well assigned, for the reason that defendants’ counsel was permitted immediately after, and without objection, to ask the witness whether he did at that time turn his horses out of the track to the right, and the witness testified that he did not, and also that he did not turn them to the right at all. Counsel also asked : “ Did you hear Lilly give you any directions to run the team ?” and the witness answered: “ I did not.” “ Did you see Lilly make any motion to you ?’’ to which the witness answered: “No, sir; I didn’t. I didn’t get around far enough, if he made 400.” On cross-examination the witness was asked: “ Did you understand that Lilly wanted you to stop the team from the call?” And he answered: “No, sir; I didn’t understand anything about it. It was done so quick I didn’t have- time.” So that it appears that he testified fully upon the subject-matter of the inquiries which were excluded, and if there was any error in the ruling it was cured by what subsequently transpired.
The fifth error assigned is upon the exclusion of the answer to the following question put to witness Lilly : “Did you at that time propose or intend to give any direction ?” Although the answer to this question was excluded upon the ■objection of plaintiff’s attorney, yet the record shows that the objection was withdrawn, and the defendant Lilly was again placed upon the stand, and inquired of fully as to his intention, and testified that he had no intention to direct Engle to run his horses, and did not have any intention to direct Engle to run his horses against or around Pigott, or any body else. Under these circumstances this assignment •of error is frivolous.
The defendants’ counsel submitted the following special questions for the jury to answer, viz.:
“ 1. Did the right hind wheel of Engle’s wagon strike the inside of the left hind wheel of Pigott’s buggy?
2. Which way from the main track was the buggy when it' was struck ?
3. Did Engle understand Lilly to direct him to run his team, or run around Pigott ?
4. What did Engle do to start his team, if anything?
5. Did Engle start his team to run before the collision ?
6. Did Engle’s wagon leave the east track ? ”
The circuit judge refused to submit the first, second, fourth, and sixth questions, to which the defendants’ counsel excepted.
There was no error in refusing to submit these questions to the jury. They were all upon immaterial, inconclusive, or admitted matters: People v. White, 53 Mich. 537; Dickerson v. Dickerson, 50 Mich. 37; Swift v. Plessner, 39 Mich. 178; Crane v. Reeder, 25 Mich. 303; Harbaugh v. Cicott, 33 Mich. 241; Johnson v. Continental Ins. Co., 39 Mich. 33 ; Fowler v. Hoffman, 31 Mich. 215 ; Daniells v. Aldrich, 42 Mich. 58. The jury answered the third question, that Engle did understand Lilly to direct him to run his team ; and they answered the fifth question, “Yes.”
The thirteenth assignment of error is based upon the refusal of the judge to charge the jury as follows:
“ No verdict can be given against Lilly, even if the jury should believe that he directed Engle to run or run around Pigott, unless the evidence shows that Engle was aware of such direction being given by Lilly, and committed the alleged trespass in consequence of such direction.”
The circuit judge instructed the jury that,
“No verdict can be given against Lilly, even if the jury should believe that he directed Engle to run or run around Pigott, unless the jui’y are satisfied from all the evidence in the case that Engle acted under and in accordance with such direction.”.
And the learned, judge further instructed the jury as follows :
“ But if Lilly didn’t order, encourage, or countenance, or make motions to, Engle, so that Engle understood him to cause his team to run, — if he had no hand in this act, — then he is not liable, whatever may be the liability of Mr. Engle.”
The modification of the request by the circuit judge was proper, and his instructions upon the liability of Lilly were proper and accurate.
The fifteenth assignment of error is as follows:
“ The circuit judge erred in this, that he refused to instruct the jury that ‘if Engle’s wagon did not leave the east track in which he was traveling" when overtaken- by Pigott, then, upon the admitted facts of the case, the plaintiff cannot recover.’ ”
This instruction could not rightly have been given upon the admitted facts in the case. These f^cts showed that Pigott, being in a light buggy, attempted to pass Engle upon a public highway; that when opposite Engle’s team -they started into a run ; that Pigott turned his horse to the right, and Engle’s wagon collided against Pigott’s and threw him-out; that there was plenty of room,for Engle to pass without running against' Pigott’s wagon; that Engle made no effort to avoid a collision, or to restrain his team. Under these facts it was immaterial whether Engle’s wagon left the east track or not. The fact of the collision was undisputed and incontrovertible, and that it was caused, not by Pigott running into Engle, but by Engle running into Pigott. It is not the law that a person, when driving along the public highway, is not responsible for any injury he may occasion to the person or property of another person using the same highway, if he can do so without leaving the beaten path or traveled part of the highway. The rights of travelers are mutual and co-ordinate; and it is the duty of each to so use his right of passage as not to cause injury or detriment to another having a like right.
The jury found in this case that Engle understood Lilly to direct him to run his team, and that he did start his team upon a run before the collision. There was evidence in the case which warranted the jury in coming to this conclusion ; and under the facts so found, and the other evidence in the ease, there is no room for doubt that their verdict was rightly rendered against Engle. As to Lilly, there was evidence in the case tending strongly to prove that by sign and words he directed Engle to run his team when Pigott was about to pass.
In addition to the instructions with reference to Lilly’s liability above noticed, the circuit judge charged as follows:
“ If Engle willfully or intentionally drove against plaintiff’s buggy, Lilly would not be liable for such act, unless he directed, advised, or counselled, or encouraged it.”
And again:
“ Did Lilly encourage or cause this man Engle to run his team, and in so running did they run into Pigott ? These are matters for you to determine. From all these facts given to you, you make up your verdict in this case. You take the whole testimony ; take the fact of their turning out of the road ; what was said and what was done; what motions were made by witnesses here ; take into consideration the fact of these witnesses who saw motions, — these three ladies; the fact that the team started about that time, — all the facts together, — and say from all this whether you believe that Mr. Lilly encouraged Engle to run his team, or whether the team became frightened and ran away. These are all matters of fact for you to determine.”
And again:
“You take the whole testimony together, and from that make up your minds how this matter occurred ; whether it was an .accident entirely ; whether the horses were frightened and uncontrollable; whether Mr. Engle neglected to control them ; whether Mr. Lilly advised this trespass or not. All these things you take into consideration, and from them say whether either or both of them are guilty or not guilty ; and if guilty, the amount of damage he has received.”
There are some portions of these instructions which perhaps may be open to the criticism which counsel for defendants has made upon them ; but, taken as a whole, they state the law of the case correctly ; and 'I cannot say that the jury were in any manner misled by them. The material points in issue were clearly stated, and the jury’s attention particularly called to them, and there was evidence in the case to fully justify the verdict which they rendered.
The judgment of the circuit court is affirmed.
The other Justices concurred. | [
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Per Curiam.
This appeal presents a custody dispute between a child’s parents on the one hand, and her maternal grandparents on the other. The circuit court entered an order giving temporary custody to the grandparents, and the Court of Appeals affirmed.
We conclude that in the circumstances of this case such an award of custody to the grandparents was improper, and reverse.
I
The child in question, Julie Lesner, was born on June 25, 1969. Her natural mother, defendant Pamela Lesner, was divorced from Julie’s natural father, and then married defendant Rodney Lesner, who adopted Julie. Plaintiffs Richard Ruppel and Charlotte Ruppel are the parents of Pamela Lesner.
This action was commenced on May 4, 1981, when the grandparents filed a pleading entitled, "Petition for Visitation,” relying on MCL 722.27(b); MSA 25.312(7)(b).
After the circuit court denied the parents’ motions for accelerated judgment and summary judgment, a hearing was held on the grandparents’ "Petition for Specific Visitation.” After taking the testimony of several witnesses, the circuit court entered an order indicating that it was taking the case under advisement for three months, but providing that during that time the grandparents could have visitation. Near the end of the three-month period, the grandparents filed a motion asking for continuation of visitation, and the circuit court entered such an order on August 18, 1982.
Then, on November 3, 1982, the grandparents filed a petition for change of custody, alleging that "several incidents have occurred which would indicate that it would not be in the best interests of the minor child for her to remain with the defendants.” Pursuant to an order to show cause, there was a further evidentiary hearing on November 5, 1982. The circuit judge found that when she learned of the petition for custody, defendant Pamela Lesner
"called her daughter a goddamned bitch and then rushed at her and pulled at her and smacked her and said to Julie that she wanted Julie to get out of her life and this behavior caused Julie to be scared and, she said, scared to death, and she fled in her nightgown and robe to a neighbor’s house and called the police.”
The court then made findings as to the statutory standards for determining the best interests of a child and concluded:_
"I find that the testimony and those findings that I’ve made, convince me that despite the presumption that favors custody to the parents, that there’s clear and convincing evidence that custody should be changed to grandparents on a temporary basis.”
The court noted that the issue of permanent custody remained pending and entered an order granting temporary custody to the grandparents and providing that there should be no visitation with the parents.
The parents filed an application for leave to appeal, which the Court of Appeals granted. However, the Court affirmed the temporary order, remanding the case for a determination of the issue of permanent custody. 127 Mich App 567; 339 NW2d 49 (1983). The parents have filed a delayed application for leave to appeal to this Court.
II
The central issue raised by the parents on appeal is their claim that where the parents of a child remain married to each other, where no divorce or separation proceedings have been instituted, and where no finding has been made in an appropriate proceeding of the parents’ unfitness, the circuit court may not give custody to a third party.
MCL 722.25; MSA 25.312(5) creates a presumption in favor of parental custody in disputes between a parent and a third party:
"When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.”
However, the Court of Appeals concluded that if clear and convincing evidence is presented that a change of custody to a third party is in the best interests of the child, the circuit court may so order without a requirement of a showing of a threshold "unfitness” of the parent, relying on Bahr v Bahr, 60 Mich App 354, 359; 230 NW2d 430 (1975):
"Prior to the Child Custody Act of 1970, in a dispute between a parent and a third party or agency the best interests of the child were deemed to be served by awarding custody to the parent unless it could be affirmatively proven that the parent was unfit to have custody or had neglected or abandoned the child. Furthermore the court could not indulge in a comparison between the parental home and the proposed alternative. In re Ernst, 373 Mich 337; 129 NW2d 430 (1964), Rincon v Rincon, 29 Mich App 150; 185 NW2d 195 (1970). Neither of these formerly accepted principles was incorporated within the comprehensive provisions of the Child Custody Act. Since the Legislature is presumed to be aware of the long-standing judicial precedent affecting an area in which an exhaustive codification of the law is undertaken and enacted, we must conclude the omission was intentional. See Alexander v Liquor Control Comm, 35 Mich App 686, 688; 192 NW2d 505 (1971); Jeruzal v Wayne County Drain Comm’r, 350 Mich 527, 534; 87 NW2d 122 (1957).
Further, the Court of Appeals found authority in the statute for the commencement of an action under the Child Custody Act by a third party, relying on Bikos v Nobliski, 88 Mich App 157, 165-166; 276 NW2d 541 (1979):
"The Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq., permits a change of custody if it will be in a child’s best interest. A parent, state agency, or third person (including a grandparent) may sue under this act. MCL 722.25; MSA 25.312(5).”
Ill
We conclude that where a child is living with its parents, and divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness in an appropriate proceeding, the circuit court lacks the authority to enter an order giving custody to a third party over the parents’ objection. The Child Custody Act does not create substantive rights of entitlement to custody of a child. Rather, it creates presumptions and standards by which competing claims to the right of custody are to be judged, sets forth procedures to be followed in litigation regarding such claims, and authorizes the forms of relief available in the circuit court. While custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving di vorce), nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody "dispute” by simply filing a complaint in circuit court alleging that giving custody to the third party is in the "best interests of the child.” When, as in this case, the third parties are close relatives of the child, we must remember that, except for limited visitation rights, grandparents have no greater claim to custody than any other relative, or indeed any other persons. The rule adopted by the Court of Appeals would permit any person to file a circuit court action asking for change of the custody of a child living with parents who were not involved in a divorce or separation procedure. We think it clear that the Legislature contemplated no such result.
In addition, the 1982 amendment of the Child Custody Act further demonstrates that the result reached by the Court of Appeals is not justified by the act. That statute created the right of grandparents to bring an action seeking visitation rights, but only in very limited circumstances:_
"(1) Except as provided in this subsection, a grandparent of the child may seek an order for visitation in the manner set forth in this section only if a child custody dispute with respect to that child is pending before the court. If a natural parent of an unmarried child is deceased, a parent of the deceased person may commence an action for visitation. Adoption of the child by a stepparent . . . does not terminate the right of a parent of the deceased person to commence an action for visitation.
"(2) As used in this section, 'child custody dispute’ includes a proceeding in which any of the following occurs:
"(a) The marriage of the child’s parents is declared invalid or is dissolved by the court, or a court enters a decree of legal separation with regard to the marriage.
"(b) Legal custody of the child is given to a party other than the child’s parent, or the child is placed outside of and does not reside in the home of a parent, excluding any child who has been placed for adoption with other than a stepparent, or whose adoption by other than a stepparent has been legally finalized.” MCL 722.27b; MSA 25.312(7b).
In the circumstances of the present case, with no previous custody matter before the court, and with the Ruppels’ child Pamela Lesner still living, the Ruppels would have no right to bring an action seeking visitation with Julie Lesner. We do not believe that a statute that would not authorize the grandparents to seek visitation would nonetheless allow them to ask for custody, as they have in this action.
Accordingly, we reverse the judgments of the Court of Appeals and the circuit court, and remand the action to the Oakland Circuit Court for entry of judgment for the defendants.
Williams, C.J., and Kavanagh, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred.
Levin, J.
(separate opinion). The opinion of the Court reads a limitation into the Child Custody Act not there expressed. Parents, without abandoning or neglecting their child, might entrust the child to grandparents, other relatives, or friends when the child is an infant. The child is raised in the household of the persons to whom the child was entrusted and psychologically becomes a member of a "new” family. The original parents are not unfit; they maintain a relationship with the child through visits, telephone calls, excursions, gifts, and financial support. But, nevertheless, the child is bonded to the grandparents, other relatives, or friends in whose household the child has been raised since infancy.
At some arbitrary time, the biological parents decide that they want the child back. To say that it is beyond the authority of the circuit court to consider, having in mind the statutory presumption favoring the biological parents, whether the child should be uprooted from the only home the child knows, from "brothers” or "sisters” in that home, and moved to a new home is, I think, contrary to the legislative purpose and an abdica tion of judicial responsibility.
Unfitness, neglect, and abuse are not the only reasons for changing legal custody of a child. Absent a finding of such unfitness, neglect, or abuse, however, unless the parents have done something such as entrusting the child to another person and allowing a separate familial relationship to develop, the court should not — not because it does not have jurisdiction but simply because it is inappropriate — award custody to a third person even if that person could "do more” for the child or could provide a "better home.”
In the instant case, it may be that there was no basis for allowing the grandparents to intrude. The child had not been entrusted to them. As a matter of judicial construction, in the decision of particular cases, a rule might emerge that, absent a special reason justifying third persons intruding themselves, the circuit court should not interfere with or change the custody of the child. Such a rule would implement the statutory presumption favoring the parents. But an absolute rule barring the court from hearing the claim simply because both parents desire custody of the child does not constitute a correct construction of the statute.
This Court should decide this case on its merits.
"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from another action in a circuit court or another or [sic] judgment of a circuit court, for the best interests of the child the court may:
"(b) Provide for the reasonable visitation of the child by the parties involved, the maternal or paternal grandparents, or by others, by general or specific terms and conditions.”
The motion was based on a theory of res judicata, because of a previous probate court proceeding in which a petition by the grandparents seeking to be named Julie’s guardians was denied. GCR 1963, 116.1(5).
This motion was based on the theory that the complaint failed to state a claim for which relief could be granted. GCR 1963, 117.2(1).
MCL 722.23; MSA 25.312(3) defines the factors that are to be considered in judging the best interests of a child:
" 'Best interests of the child’ means the sum total of the following factors to be considered, evaluated, and determined by the court:
"(a) The love, affection, and other emotional ties existing between the parties involved and the child.
"(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
"(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
"(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
"(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
"(f) The moral fitness of the parties involved.
"(g) The mental and physical health of the parties involved.
"(h) The home, school, and community record of the child.
"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
"(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
"(k) Any other factor considered by the court to be relevant to a particular child custody dispute.”
Of course, if the parents abuse, neglect, or abandon a child, proceedings may be brought under the juvenile code to bring the child within the probate court’s jurisdiction, allowing appropriate orders regarding custody. MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. While in this case the grandparents have made claims about the unsuitability of the parents, there has been no finding of unfitness.
The single exception to this principle is in the limited rights of visitation for grandparents created by 1982 PA 340, MCL 722.7b: MSA 25.312(7b).
See, e.g., Deel v Deel, 113 Mich App 556; 317 NW2d 685 (1982) (divorce action — temporary custody with grandmother); Siwik v Siwik, 89 Mich App 603; 280 NW2d 610 (1979) (original divorce judgment granted custody to grandparents); Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1979) (remand for further findings regarding best interest of the child in custody dispute between a parent and an aunt and uncle); Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975) (divorce judgment awarded custody to child’s aunt).
MCL 722.27; MSA 25.312(7):
"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from another action in a circuit court or another or [sic] judgment of a circuit court, for the best interests of the child the court may:
"(b) Provide for the reasonable visitation of the child by the parties involved, the maternal or paternal grandparents, or by others, by general or specific terms and conditions.”
1982 PA 340, effective December 17, 1982. The statute was not, of course, in effect at the time this action was commenced or when the circuit court entered its temporary order.
MCL 722.21 et seq.; MSA 25.312(1) et seq.
"When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” MCL 722.25; MSA 25.312(5).
The "best interests of the child” are the primary goal of the act:
"Best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
"(a) The love, affection, and other emotional ties existing between the parties involved and the child.
"(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
"(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
"(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
"(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
"(f) The moral fitness of the parties involved.
"(g) The mental and physical health of the parties involved.
"(h) The home, school, and community record of the child.
"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
"(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
"(k) Any other factor considered by the court to be relevant to a particular child custody dispute.” MCL 722.23; MSA 25.312(3).
See also fn 2.
The act contemplates that original actions will be commenced under the act:
"The provisions of this act, being equitable in nature, shall be liberally construed and applied to establish promptly the rights of the child and the rights and duties of the parties involved. This act shall apply to all circuit court child custody disputes and actions, whether original or incidental to other actions.” MCL 722.26;, MSA 25.312(6).
"If a child custody dispute has been submitted to a circuit court as an original action under this act. . . .” MCL 722.27; MSA 25.312(7). | [
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Cavanagh, J.
The primary question presented in this case was left open in People v Gonzales, 415 Mich 615; 329 NW2d 743 (1982), modified 417 Mich 968; 336 NW2d 751 (1983), i.e., whether a witness who has undergone hypnosis may testify at trial to facts which the witness recalled and related prior to hypnosis. We must also decide whether Gonzales is to be given retroactive or prospective effect.
I
Defendant was tried and convicted by a jury in February, 1980, of two counts of first-degree murder, MCL 750.316; MSA 28.548. He was sentenced to two concurrent terms of life imprisonment. The Court of Appeals summarized the facts of this case as follows:
"Defendant was arrested for the shooting deaths of James and Sandra Frank. At defendant’s trial, Diane Downer, defendant’s girlfriend and accomplice, testified that she and defendant had planned to take $30,000 from James Frank when he came to their home to complete a prearranged deal to buy $30,000 worth of marijuana. When Frank arrived, Downer let him in and led him to the dining room. As Frank entered the room, defendant hit him over the head with a champagne bottle, but failed to render him unconscious. A struggle ensued which ended when defendant shot Frank in the shoulder.
"Downer testified that to protect their reputations as 'honest’ drug dealers, she and defendant decided to kill Frank. While transporting Frank to a secluded spot, he escaped from the pick-up truck and ran to a nearby home. As Downer and defendant were struggling to get Frank back into the truck, Donald VerHage came to the door of the house. As Nixon placed Frank in the truck, Downer informed VerHage that Frank had been in an accident and they were taking him to the hospital. After this incident, they drove Frank to a secluded spot behind his house where defendant shot him in the head. The pair then went to Frank’s house where they convinced his wife to accompany them to the same spot where they had killed her husband. As she stepped off the truck, defendant shot her in the head.” People v Nixon, 114 Mich App 233, 235-236; 318 NW2d 655 (1982).
Prior to trial, defendant moved to suppress the testimony of VerHage and Clark Porter (a friend of the Franks) on the grounds that they had been hypnotized during the police investigation of the Franks’ disappearance. Defendant also sought to suppress the testimony of Gary Powell, the police detective who had hypnotized VerHage and Porter. After listening to tape recordings made before, during, and after the hypnosis sessions, and examining Powell, the trial court denied the motions. The court concluded that hypnosis was a valid method of refreshing a witness’ memory and that Powell had not suggested any facts to VerHage and Porter. However, defendant was allowed to play the tapes for the jury to assist them in evaluating the witnesses’ credibility and the suggestiveness of the hypnosis procedures. The witnesses were excused from the courtroom while the tapes were played.
VerHage testified at trial that he was not able to get a full face view of the man who helped James Frank into the truck. However, he did notice that the man was white, had straight collar-length hair which covered his ears, had no discernible facial hair, was about as tall as the female, and wore a blue nylon windbreaker. This description was substantially identical to the witness’ statements given both before and during hypnosis. The only discrepancy was that VerHage had described the male as "stocky” while under hypnosis.
VerHage further testified that defendant looked like the man he saw at his home, although defendant’s hair was shorter. On cross-examination, VerHage admitted that defendant was not "stocky,” nor did he resemble the police sketch made by Detective Powell immediately after Ver-Hage underwent hypnosis. He also admitted telling police several days after the incident that he probably would be unable to identify the man. Nevertheless, VerHage identified defendant six months later in a lineup.
Porter merely testified at trial that defendant was present at the Franks’ home shortly before their disappearance. The tapes, which were played at defendant’s request, contained considerably more information, however; e.g., James Frank told Porter that he was going to meet defendant later that evening concerning a marijuana deal, and Sandra Frank stated that she was "scared to death” of defendant because he was violent. Porter’s statements both before and during hypnosis were substantially identical.
Detective Powell testified that he had been an investigative hypnotist for less than a year. His formal training consisted of a 32-hour police seminar. He was also a police artist and had worked for three years with a state police psychologist who practiced investigative hypnosis. Powell further testified that he had asked open-ended questions during hypnosis to avoid suggesting answers to the subject. He also explained that hypnosis is not a truth-seeking device and that it is possible to lie while under hypnosis or to recall facts inaccurately. Defendant presented no expert testimony concerning hypnosis.
The trial court carefully instructed the jury several times that the tapes could be used only to evaluate the credibility of the witnesses, rather than to establish the truth of the matters asserted therein. The jury was also instructed on the credibility of expert witnesses.
The Court of Appeals affirmed defendant’s convictions, holding that a witness can testify about those aspects of a case remembered prior to hypnosis. Furthermore, any error in admitting the posthypnotic testimony was harmless beyond a reasonable doubt because 1) VerHage never positively identified defendant, 2) the pre- and post-hypnotic tapes were played for the jury, thus enabling them to evaluate VerHage’s trial testimony, and 3) the most damaging evidence against defendant was given by Downer. 114 Mich App 237-238. In lieu of granting leave to appeal, this Court remanded the case to the Court of Appeals for reconsideration in light of Gonzales. 417 Mich 932; 330 NW2d 855 (1983). On remand, defendant’s convictions were reversed because his right to cross-examine Ver-Hage and Porter had been unduly infringed by the lasting effects of the hypnosis. 125 Mich App 807, 809-810; 337 NW2d 33 (1983). We granted plaintiff’s application for leave to appeal. 418 Mich 897 (1983).
II
In Gonzales, this Court joined a growing number of jurisdictions which have refused to admit hypnotically induced testimony. Plaintiff does not challenge this holding, nor has it presented evidence that hypnosis is now a generally accepted method of accurately improving a witness’ memory. Instead, plaintiff maintains that defendant’s convictions should be reinstated because 1) Gonzales should not be applied retroactively to the instant case, 2) a previously hypnotized witness may testify at trial to facts which were recalled and related prior to hypnosis, and 3) any error in admitting the testimony does not require reversal.
A
In determining whether a judicially created rule of law should be applied retroactively, a court must consider the purpose of the new rule, the general reliance on the old rule, and the effect on the administration of justice. Stovall v Denno, 388 US 293, 297; 87 S Ct 1967; 18 L Ed 2d 1199 (1967); People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971).
Prior to Gonzales, this Court had not addressed the problem of hypnotically induced testimony. Other jurisdictions had split on whether such testimony was always admissible, admissible only if certain safeguards were met, or completely inadmissible. See Gonzales, supra, 415 Mich 624-626, and cases cited therein. Those jurisdictions which have refused to admit hypnotically induced testimony have generally refused to give their decisions full retroactive effect. See, e.g., State v Collins, 132 Ariz 180, 189-191; 644 P2d 1266 (1982); People v Shirley, 31 Cal 3d 18; 181 Cal Rptr 243; 641 P2d 775 (1982), cert den 459 US 860; 103 S Ct 133; 74 L Ed 2d 114 (1982); People v Adams, 137 Cal App 3d 346, 350-353; 187 Cal Rptr 505 (1982); People v Williams, 132 Cal App 3d 920, 923-926; 183 Cal Rptr 498 (1982); Commonwealth v Kater, 388 Mass 519; 447 NE2d 1190, 1198 (1983); State v Peoples, 311 NC 515; 319 SE2d 177, 188-189 (1984). Cf. State v Koehler, 312 NW2d 108, 110 (Minn, 1981).
The Arizona Supreme Court, in determining that the exclusionary rule enunciated in State v Mena, 128 Ariz 226; 624 P2d 1274 (1981), should be applied only to cases tried or pending on appeal after Mena was decided, evaluated the aforementioned three-factor test as follows:
"The purpose of the holding in Mena and the present case is to exclude from a criminal trial posthypnotic testimony because of its basic unreliability. 'The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a "question of probabilities.” ’ [Citations omitted.] The purpose of the Mena rule does not warrant the reexamination of unknown numbers of jury verdicts. Not every refinement of the law should result in the rejuvenation of post-conviction appeals. Additional' safeguards present during trial minimize the possibility of the miscarriage of justice. The purpose of the rule in Mena ' "[does] not clearly favor either retroactivity or prospectivity[.]” ’ . . . [T]herefore, we must examine the second and third criteria set out by the Supreme Court.
"The reliance police authorities placed on the prior law is the second criterion in deciding if a principle should be retroactively applied. The apparent reliance of the police in the hypnosis area clearly weighs in favor of the prospective application of Mena and the case before us. There was no clear statement of the law proscribing the use of posthypnotic testimony prior to Mena. The police were not on notice pre-Mena that placing persons under hypnosis would then preclude their testimony at a subsequent trial. The argument could be made that the police had notice of the incompetency of previously hypnotized witnesses after State v La Mountain, 125 Ariz 547; 611 P2d 551 (1980). Mena, however, as was noted by the trial judge below, is a much clearer statement of this Court’s position on posthypnotic testimony. Therefore, the reliance that the police placed on the admissibility of the testimony of persons hypnotized pre-Mena operates in favor of Mena having only prospective application. 'The point of reliance is critical, not because of any constitutional compulsion, but because it determines the impact that newly articulated constitutional principles will have upon convictions obtained pursuant to investigatory and prosecutorial practices not previously proscribed.’ Jenkins v Delaware, 395 US 213, 218; 89 S Ct 1677; 23 L Ed 2d 253 (1969).
"The third criterion enunciated by the United States Supreme Court is the effect of retroactive application on the administration of justice.
" 'We are reluctant to apply a constitutional rule of criminal procedure retroactively as "[t]o characterize a past proceeding as unconstitutional and therefore void reflects seriously on the integrity of the law, . . . weakens the confidence of those who trusted in the existence and validity of the rule and undermines the doctrine of the finality of prior determinations.” ’ [Citations omitted.]
"It is possible that juries in Arizona have convicted defendants in trials where post-hypnotic testimony was introduced. But the law is dynamic. It is a continuum of succeeding redefinitions. Not every refinement in the law should call into question all prior convictions. Justice does not demand judicial reexamination of all criminal trials for each new advancement in judicial thinking. The judiciary could not function if there was never any finality to decisions. It is for this reason that only where there is a denial of a basic right of constitutional magnitude that is correctable will retrospective application be invoked. This is not the case here.
"There is practical consideration in addition to the taxing of trial and appellate courts in denying the retroactive employment of Mena. The fact that a witness has undergone hypnosis may not be in the record, and therefore an appellate court would be handicapped in discovering this information.
"Because of the unforeseen change in the law, the burden retrospective application would place on the administration of justice, and the need for finality, we hold Mena to be prospective only.” Collins, supra, 132 Ariz 189-190.
We adopt this reasoning and hold that Gonzales is to be applied only to those cases tried after the date of that decision and those cases pending on appeal which raised the issue. Since defendant’s case was on appeal to this Court when Gonzales was decided and the hypnosis issue was properly raised and preserved, Gonzales is theoretically applicable. Nevertheless, we conclude that Ver-Hage and Porter’s trial testimony was not hypnotically induced.
B
In Gonzales, this Court reversed defendant’s conviction because it was based almost entirely on testimony which was induced by several suggestive pretrial hypnotic sessions. Prior to hypnosis, the key prosecution witness had no recollection of the incident and had not indicated that defendant was involved. We concluded:
"The process of hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed memory, and to permit posthypnotic testimony would unfairly denigrate the defendant’s right to cross-examination. Therefore, we hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.
"We do not foreclose, by this opinion, the use of hypnosis as an extremely useful investigative tool. A party could preserve a witness’s prehypnotic testimony by using an MRE 804(b)(1) deposition. After the hypnotic session, the subject would be considered 'unavailable as a witness.’ ” 415 Mich 626-627. (Emphasis added.)
On April 25, 1983, this Court, on its own motion, modified this holding:
"This opinion should not be read as determining the question of the admissibility of this witness’s testimony concerning facts she was able to recall and relate prior to hypnosis, a question which is reserved until raised on an adequate record in an appropriate case.” 415 Mich 627.
The instant case differs significantly from Gonzales. There, the witness testified almost entirely to matters "recalled” under hypnosis. In contrast, the trial testimony of VerHage and Porter was identical to their prehypnosis statements. We further note that almost every jurisdiction which excludes hypnotically induced testimony allows the witness to testify to facts which were recalled and related prior to hypnosis. See, e.g., Collins, supra, 132 Ariz 209; 644 P2d 1295; People v Quintanar, 659 P2d 710, 711 (Colo App, 1982); State v Collins, 296 Md 670, 702; 464 A2d 1028 (1983); Kater, supra, 447 NE2d 1193; Koehler, supra, 312 NW2d 110; State v Patterson, 213 Neb 686, 690; 331 NW2d 500 (1983); People v Hughes, 59 NY2d 523, 544; 466 NYS2d 255; 453 NE2d 484 (1983); Peoples, supra, 319 SE2d 188; Robison v State, 677 P2d 1080, 1085 (Okla Crim App, 1984), cert den — US —; 104 S Ct 3524; 82 L Ed 2d 831 (1984); Commonwealth v Taylor, 294 Pa Super 171, 175; 439 A2d 805 (1982); State v Martin, 101 Wash 2d 713; 684 P2d 651, 656 (1984). Although California prohibits a witness from testifying to matters discussed during hypnosis, the witness can still testify to wholly unrelated matters. Shirley, supra, 31 Cal 3d 66-70.
Defendant’s argument that hypnosis renders a witness completely incompetent to testify is sup ported by persuasive authority. See Diamond, Inherent problems in the use of pretrial hypnosis on a prospective witness, 68 Cal L R 313 (1980). Nevertheless, we decline to adopt such a rule for the reasons given by the Arizona Supreme Court:
"We recognize, however, that there is danger even in allowing testimony of facts recalled prior to hypnosis, because the subsequent hypnosis does have an effect upon the witness’ confidence in those facts. It is for this reason that we originally adopted Dr. Diamond’s suggestion that any witness who had been hypnotized would be incompetent to testify for any purpose. We are persuaded, however, that with respect to investigatory use of hypnosis, the benefit does outweigh the danger. We also recognize that none of the other states which have adopted the rule of per se admissibility have gone as far as Mena. They allow a witness to testify to those facts which were demonstrably recalled prior to hypnosis. . . . Some of the attendant risks may be minimized by allowing cross-examination of the previously hypnotized witness in order to permit the opposing party to establish the fact of hypnosis and to introduce expert evidence showing the inherent possibility that the witness might have become subjectively certain of events only tentatively recalled before hypnosis.” Collins, supra, 132 Ariz 210.
In order to ensure that the witness’ trial testimony is based solely on facts recalled and related prior to hypnosis, we hold that the party offering the testimony must establish its reliability by clear and convincing evidence. In this regard, we commend for examination the standards articulated in Collins, supra, and Hughes, supra, 59 NY2d 546-548.
C
The trial testimony of VerHage and Porter was consistent with the facts which they had recalled and related prior to hypnosis. These prehypnotic statements were recorded, and defense counsel was given adequate notice of the statements and the circumstances surrounding the hypnosis. Furthermore, the trial court found that the procedures used by Detective Powell were not suggestive. Although additional safeguards could have been undertaken to ensure that the hypnosis did not taint the witnesses’ prehypnotic recollections, we cannot say that the trial court abused its discretion in allowing the witnesses to testify.
The Court of Appeals, on remand, concluded that defendant had been denied a fair trial because the lasting effects of hypnosis deprived him of his right to cross-examine VerHage and Porter completely. However, the mere fact that a prosecution witness has been hypnotized does not automatically preclude effective cross-examination. See Adams, supra, 137 Cal App 3d 352-353; People v Smith, 117 Misc 2d 737; 459 NYS2d 528, 543 (1983). The jury was well aware of the fact that the witnesses had been hypnotized, the techniques used by the hypnotist, and the substance of the prehypnotic statements. Defense counsel vigorously attacked VerHage’s conclusion that defendant looked like the man he saw on the night of the murder. Porter’s trial testimony merely placed defendant at the Franks’ home sometime before their disappearance. Finally, as the Court of Appeals noted in both of its opinions, the most damaging evidence against defendant was presented by Downer, his alleged accomplice. Defendant presented numerous alibi witnesses and made every attempt to impugn Downer’s credibility. The trial was essentially a credibility battle. Under these circumstances, we find that defendant received a fair trial.
Ill
The decision of the Court of Appeals is reversed and defendant’s convictions are reinstated.
Williams, C.J., and Ryan, Brickley, and Boyle, JJ., concurred with Cavanagh, J.
Kavanagh and Levin, JJ., would affirm the judgment of the Court of Appeals for the reasons stated in People v Gonzales.
Levin, J.
(separate opinion). This Court should, until the question arises in a case tried before People v Gonzales, 415 Mich 615; 329 NW2d 743 (1982), was decided or a case not "pending on appeal which raised the issue,” defer consideration of the question whether the rule stated in Gonzales should be applied in such a case.
One of defendant’s alibi witnesses, Jeffrey Scott Dunfee, mentioned during his trial testimony that he had undergone hypnosis at his own expense in order to recall his and defendant’s whereabouts on the day before and of the Franks’ disappearance. Although Dunfee stated that he could not recall anything prior to hypnosis, the assistant prosecutor did not object to his alibi testimony. Plaintiff has not challenged the admissibility of this testimony on appeal.
At the time of this trial, the Court of Appeals had decided only one case concerning hypnosis, and that case was factually distinguishable. See People v Hangsleben, 86 Mich App 718; 273 NW2d 539 (1978) (statements made by a defendant while under hypnosis are inadmissible to prove the truth of the matters asserted therein or to bolster his credibility).
The use of statements obtained prior to hypnosis for substantive, impeachment, and other purposes is governed by the same rules applicable to other prior recorded statements. Statements obtained after hypnosis are inadmissible per se under Gonzales, except as otherwise stated in this opinion and in accordance with applicable evidentiary rules.
The trial court correctly ruled that statements made during hypnosis are inadmissible to prove the truth of the matters asserted therein. See Hangsleben, supra, 86 Mich App 728; Smith, supra, 459 NYS2d 540; 92 ALR3d 442, §§ 6-7, pp 455-461, and cases cited therein. Given the inherent problems of investigative hypnosis, we also hold that statements obtained from a witness during hypnosis cannot be used to bolster or impeach the witness’ credibility. See Hangsleben, fn 2 supra, pp 728-729. Generally, the suggestiveness of the hypnosis session can be adequately conveyed to the jury through the testimony and cross-examination of the hypnotist, as well as the presentation of other expert testimony. Any error in admitting the tapes in the instant case was harmless beyond a reasonable doubt, especially since defense counsel insisted that the tapes be played and used them to impeach the prosecution witnesses’ credibility.
Although hearsay statements contained in the tapes made before and during Porter’s hypnosis were not particularly helpful to defendant’s case and might have been otherwise inadmissible, defense counsel did not request that the tapes be edited before they were played to the jury. | [
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Clark, J.
Plaintiff village had the plan of not permitting gasoline filling stations in its main street, preferring to have all parking space along the street for the convenience of farmers trading at the stores, and of people generally. Defendant proposed to tear up the sidewalk to install a tank and pump and to have the station and conduct the business in and upon the said street and sidewalk in front of his store. The sidewalk there is upon land of which defendant owns the fee, there being of record no deed or formal dedication to the village or the public. It meets the street proper in a curb upon the street line, and it has been used openly, exclusively and continuously as such by the public for upwards of 40 years, though for much of this time, defendant’s building being then used as a hotel, chairs were kept on the sidewalk at seasonable times for use by guests. A board walk was replaced by a cement walk paid for in part by the village and in part by the abutter. Plaintiff refused defendant’s proposal. He began installing, was enjoined, and has appealed.
Clearly the sidewalk was a public one by user and of which the village had control. Section 2646, 1 Comp. Laws 1915; Village of Manchester v. Clarkson, 195 Mich. 354, and cases there cited. The intention to dedicate is shown positively. Vance v. Village of Pewamo, 161 Mich. 528. The having of the chairs upon the sidewalk would afford no ground for claiming prescriptive rights as against the village. Pastorino v. City of Detroit, 182 Mich. 5 (Ann. Cas. 1916D, 768); Weber v. City of Detroit, 159 Mich. 14 (36 L. R. A. [N. S.] 1056), and is of no weight as against the clear and unequivocal evidence of dedication. Campau v. City of Detroit, 104 Mich. 560, and cases there cited. And there has been full and complete acceptance by the village. 18 C. J. p. 90; 11 L. R. A. 55; Vance v. Village of Pewamo, supra.
In conformity to its plan the village had the right to refuse and to prohibit the installing of the filling station and the conducting of the business in and upon such public street of which the sidewalk is a part. Sections 2646 and 2650, 1 Comp. Laws 1915; and see Melconian v. City of Grand Rapids, ante, 397.
We need not determine the interesting question of the right of defendant to permanent use of the subsurface. See 7 A. L. R. 646.
The decree is affirmed.
Fellows, C. J., and Wiest, Bibd, Shaepe, Mooee, and Steeee, JJ., concurred.
The late Justice Stone took, no part in this decision. | [
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] |
Moore, J.
Plaintiff, on November 15, 1919, was driving his automobile east on Ferry avenue in Detroit. His automobile came in collision with a car owned by the defendant which was going south on Chene street. He received injuries and he brought this suit to recover his damages. At the close of the testimony offered on the part of the plaintiff, and again at the close of all the testimony, the defendant’s attorney moved for a directed verdict in its favor. The judge overruled both motions. The case was submitted to a jury which returned a verdict in favor of the plaintiff in the sum of $5,000. The defendant moved for a rehearing for the following reasons:
(1) Because said verdict is excessive.
(2) Because said verdict is contrary to the overwhelming weight of evidence.
(3) Because the court erred in failing to direct a verdict for the defendant by reason of the contributory negligence of the plaintiff.
The trial judge overruled this motion, filing his reasons in great detail.. The case is brought here by writ of error.
Counsel present the same reasons in this court why there should be a reversal of the case that they did in asking* for a new trial, with the following additional reasons:
(a.) The court erred in charging the jury in regard to the ordinance relating to speed of street cars inasmuch as the ordinance provided for an average rate of speed and the testimony was lacking in this respect.
(6) That the court erred in charging the jury in regard to the ordinance relating to street cars stopping on signal for passengers, as under the testimony in this case, this ordinance had no bearing on the question in issue.
(c) There was no actionable negligence proven on defendant’s part.
The last named reason is presented in, this court for the first time. When counsel first moved for a directed verdict he said:
“Mr. Hmwwrd: I move, your honor, at this time, to direct a verdict for the defendant on the ground of the contributory negligence of the driver, of the plaintiff — of course, if his testimony is true, and the testimony of some of the witnesses, there may be evidence of negligence on the part of the defendant, but it seems to me that under the testimony here, the plaintiff himself was careless of his own safety.”
The record discloses an abundance of testimony which, if believed, showed negligence on the part of the defendant.
In overruling the motion for a new trial the judge said in part:
“In this cause plaintiff sued defendant to recover damages for personal injuries which he claims to have suffered as a result of the negligence of defendant’s employees in operating a street car at the corner of Chene street and Ferry avenue in the city of Detroit on the 15th day of November, 1919, at about 2 o’clock in the afternoon. The weather was fair and the pavement dry. Chene street runs in a northerly and southerly direction and Ferry avenue crosses it at right angles. There was a single street railway track on Chene street over which defendant’s street cars ran but one way, from north to south. This crossing is within the three-mile circle from the geographical center of Detroit, and the testimony shows it to be a somewhat busy place as to traffic. Plaintiff was driving a Buick, two seated touring car known as a ‘Light Six/ easterly on the south side of Ferry avenue, and the street car was coming from the north on Chene street; the front curtains of plaintiff’s automobile were rolled up but the rear curtains were closed. There is some evidence tending to show that at a point about 70 feet north of the north line of Ferry avenue the street car was moving at the rate of 80 to 35 miles per hour. Plaintiff was entirely familiar with this location. Plaintiff testifies that he stopped his automobile about in the line of the curb on the west side of Chene street 20 feet from the street car track and looked, and that the street car was then coming about 200 feet north of Ferry avenue. At this point there were no objects in the line of plaintiff’s vision to obstruct his view of the street car coming from the north. At this time some people were standing in the protected area for passengers to take the southbound Chene street cars at a location on the west side of Chene street just north of the north line of Ferry avenue. Plaintiff testified that he expected the street car to stop to take on these passengers. However, the car did not stop.
“An ordinance in force in the city of Detroit provides that street cars shall stop at street crossings to take on passengers on signal. This court will take judicial notice of the established custom that when people are standing in the protected areas at street crossings in the city of Detroit, it is a signal for the street cars to stop to take them on as passengers. This street car did not stop for the reason that it was fully loaded, and at about the middle of the block north of Ferry avenue, the conductor gave the motorman a signal of two bells to indicate to him that the car should not be stopped at Ferry avenue to take on more passengers.
“After stopping and looking as above related, plaintiff testifies that thinking he had time to safely cross the street car track, he started his automobile at first or lowest speed. He testifies he looked again and saw the street car about 200 feet or more distant and he still thought he could cross the street car track with safety for he still expected the street car to stop to take on the waiting passengers and proceeded at a speed of 4 or 5 miles per hour, and that when the front end of the car had reached a point close to the west rail of the street car track (given by him as one foot on direct and five feet on cross-examination), he saw the street car coming 70 or 75 feet away at a speed of 25 or 30 miles per hour. He testifies that he then concluded it dangerous to attempt either to try to stop or to go ahead and he then turned his automobile to the right thinking he could make the turn and escape the street car by going south on the west side of Chene street between the street car track and the curb, but after plaintiff started to make this turn the street car struck his automobile near the left front wheel and he was thrown to the pavement and injured.”
What is said above by the trial court as to the effect of the testimony offered on the part of the plaintiff is borne out by the record.
The testimony offered on the part of the plaintiff was to the effect that before entering upon the danger zone he stopped and saw the car so far away that he was justified in thinking he could cross in safety, and that he would have been able to do so had the motorman been in the exercise of due care. As to this feature of the case it is within Ryan v. Railway Co., 123 Mich. 597; Chauvin v. Railway Co., 135 Mich. 85, Deneen v. Railway Co., 150 Mich. 235 (13 Ann. Cas. 134); Deitsch v. Traction Co., 155 Mich. 15; Theisen v. Railway, 163 Mich. 68; Putnam v. Railway, 164 Mich. 342; Erdman v. Railway, 175 Mich. 691; Powell v. Railway, 206 Mich. 698.
Was the verdict against the weight of the evidence? This court has considered that subject in the following cases: Gardiner v. Courtright, 165 Mich. 54; Fike v. Railroad Co., 174 Mich. 167; Druck v. Antrim Lime Co., 177 Mich. 364; Porth v. Cadillac Motor Car Co., 209 Mich. 89; Lignell v. Bruhns, 211 Mich. 346; Mapes v. Boersma, 216 Mich. 106.
'.The trial judge was decidedly of the opinion that the verdict was not against the weight of the evidence, and we see no occasion to disturb his finding in that regard.
Counsel complain of that portion of the charge relating to the ordinances. We quote from the charge:
“In considering the contributory negligence of the plaintiff himself, you have a right to take into consideration, the two ordinances which have been introduced in evidence, first, that at this particular part of the line the ordinance prohibits the running of street cars at a rate of speed in excess of an average of 10 miles an hour, and second, that the ordinance which provides for street cars — that street cars shall stop on signal to take on passengers desiring to board a car; whether or not plaintiff had a right to expect that the car would stop to take on passengers may be considered by you as bearing upon the question of whether or not he was guilty of contributory negligence in attempting to cross Chene street with his automobile at the time in question.
“This question is whether a reasonably prudent man on approaching the intersection of Ferry (Warren) and Chene street and seeing a car approaching, as plaintiff did see it, and seeing a number of persons standing near the street car track or in the safety zone, would have a right to rely on the fact that the street car would stop to take on these passengers.
“You remember that ordinance provides that cars shall stop on signal. There is no evidence in this case that any signal was given, but the question of whether or not it is not a signal in itself for people to be standing in a protected area when a car goes by, is a question for you gentlemen to consider.”
We think this charge was justified by the testimony and by what is said in Theisen v. Railway, 163 Mich. 68, and Putnam v. Railway, 164 Mich. 342.
The other assignments of error have had our consideration but we deem it unnecessary to discuss them. We find no reversible error.
The judgment is affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision.
the question of attempting to cross street in front of observed street ear as contributory negligence, see note in L. R. A. 1917C, 692. | [
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] |
Wiest, J.
In 1908, Charles Flowers was appointed special guardian, in a proceeding under the statute, to sell real estate owned by minors and gave bond with the Massachusetts Bonding & Insurance Company as surety. The real estate was sold, and in November, 1914, a party in interest petitioned the court for an order for the payment of the proceeds. Mr. Flowers filed a report and also objected to the petition. Testimony was taken and the matter rested until March 17, 1920, when, without notice to Mr. Flowers or his attorney, Judge Hosmer signed a decree presented by the attorneys for petitioner, holding Mr. Flowers liable in the sum of $2,041, with interest thereon from June 5, 1908. March 30, 1920, Judge Hosmer at the request of the attorney for Mr. Flowers set aside the decree of March 17th and ordered á rehearing. Later on, and after a considerable lapse of time, claimed to be excusable because of want of notice of the order of March 30th, a motion was made to set aside the order granting a rehearing. Judge Hosmer having died, this motion was heard by Judge White, sitting in the Wayne circuit, and he vacated the order granting a rehearing and thereby restored the decree of March 17, 1920.. We are asked in this proceeding to direct the vacation of this last order.
If the decree granted by Judge Hosmer was settled and signed without notice to the attorney for Mr. Flowers a motion should have been made to set it aside. If the decree was against the just rights of Mr. Flowers or rendered by reason of a misapprehension of the facts then a rehearing should have been applied for. Judge Hosmer having died, Judge White presiding in the same circuit had authority, under proper showing, to set aside the order made by Judge Hosmer (3 Comp. Laws 1915, § 12139). Judge White found that the order made by Judge Hosmer granting a rehearing was obtained ex parte in chambers without notice, affidavit or petition, and upon insufficient grounds for a rehearing and set the same aside.
The record sustains the finding, and the writ prayed for is denied, with costs against plaintiffs.
Fellows, C. J., and Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice STONE took no part in this decision. | [
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Sharpe, J.
Plaintiffs sue to recover under a policy issued by defendant wherein it agreed to indemnify plaintiffs for loss sustained by the felonious taking of its property by any person. The case was tried by the court without a jury and findings of fact and conclusions of law made and filed. The facts are not in dispute. But one question is presented. The policy issued provides:
“No suit shall be brought under this policy until after ninety days after the claim for loss, as required in provision No. 13, has been filed with the company, nor at all unless begun within twelve months from the date of the occurrence of the loss. If any limitation set forth in this policy is prohibited by the statutes of the State in which the premises of the assured, as herein specified, are located, such limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statutes.”
The defendant is subject to the provisions of Act No. 256, Public Acts 1917. In this act, the laws of this State relating to insurance and surety business are revised, consolidated and classified. New provisions are incorporated therein. The act is divided into five parts, each consisting of several chapters. It is so accessible that we deem it unnecessary to quote from or set forth its provisions at length. An examination of the act itself will, however, indicate the manner in which the several subjects embraced therein are classified and the provisions relative thereto incorporated therein. Chapter 2 of part 3 contains provisions relative to life insurance contracts or policies. Section 3 makes mandatory the insertion of certain provisions and section 4 prohibits •the inclusion of certain others. Among the latter is the following:
“A provision limiting the time within which any action at law or in equity may be commenced to less than six years after the cause of action shall accrue.”
Plaintiffs’ counsel concede that this provision is not by express language made applicable to the policy sued upon but insist that it is made so by the provision in section 8 of chapter 1 of part 3, which reads as follows:
“Such individuals, companies or associations shall be required to comply with the laws of this State regulating the business of life insurance, in respect to making annual statements of financial conditions, and with all the other requirements so far as applicable.” * * *
The subdivision in which this section is included relates to companies engaging in the casualty insurance business. They must obtain a certificate showing their authority to do business. Provision is made for the amount of paid up capital required, the deposit of securities with the State treasurer, the reserve fund which must be maintained, the impairment of capital, etc. Chapter 2 of part 1 imposes certain stringent requirements on life insurance companies. Annual statements on such forms as may be furnished by the insurance commissioner must be made and filed, the company must promptly respond to any inquiries made by the commissioner, and books, records and documents must be produced for his examination when required. A considerable penalty may be imposed on any company failing to comply with these requirements. In our opinion, these and perhaps others are the “other requirements” referred to in section 8.
The provisions as to what life insurance policies must contain and must not contain, of which that heretofore quoted forms a part, are set forth in chapter 2, part 3. Section 1 of this chapter reads:
“Every policy of insurance hereafter issued or delivered within this State by any life insurance corporation doing business within the State shall contain the entire contract between the parties.” * * *
It is significant that though section 3 contains 13 distinct positive requirements and section 4 four negative ones, that in question relating to the time within which suit must be brought is the only one which could in any way apply to the policy in suit.
We feel constrained to hold, as did the trial court, that the provision in section 8 of chapter 1 does not render the prohibition as to limiting the time within which suit must be brought contained in chapter 2 applicable to the policy sued upon. The “other requirements” to which section 8 applies are those of a regulatory character.
The trial court filed an exhaustive opinion from which we have received much aid. In it he traces the history of insurance legislation in this State, from which it appears that though provision was made for the regulation of indemnity insurance in acts independent of those relating to life insurance, no attempt was made to prevent such indemnity companies from limiting the time for beginning suit on the policies issued by them. Without lengthening this opinion to include his review and discussion of these several acts, we may add that their consideration strengthens the conclusion we have reached.
It is, perhaps, not improper to add that there are seemingly good reasons why a limitation of less than 6 years should be provided for in casualty policies. The liability depends upon some unforeseen happening, which plaintiff must establish by proof. The difficulty of meeting such proof in many cases after the lapse of several years is apparent. Similar questions could not well arise in an action on a life insurance policy.
The judgment is affirmed.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Sharpe, J.
The plaintiff brought two suits against defendant in justice’s court in the city of Detroit. In the first (No. 3,453) its amended bill of particulars claimed for material furnished between August 5, 1919, and August 27, 1919, and labor installing same, amounting to $941.63, on which it credited defendant for returned material, $149.11, and cash paid, $300. In the second (No. 3,456) it claimed for material furnished on and after August 14th and labor installing same, $320.62, and gave credit for returned material, $6.11. The pleadings do not appear in the record. Judgment was entered in No. 3,453 for plaintiff for $490 and $6.75, costs, and No. 3,456 for $307.90 and $6.75, costs. A special appeal was taken in both cases. While there are several assignments of error, counsel for appellant in their brief say:
“The right of the plaintiff to separate the account into two claims constitutes the sole question raised in this brief.”
We therefore are at liberty to consider only the rulings made by the trial court wherein such question was raised.
In No. 3,453, the error in respect to the matter here under consideration was thus stated:
“For the reason that the court erred in the denying of defendant’s motion to dismiss this cause for the reason that there is another action pending arising out of the same claim or demand, said other action being No. 3,456, between the above named parties before the above named justice of the peace.”
In No. 3,456, the error alleged in the affidavit on which the special appeal was founded was the action of the justice in allowing costs against defendant contrary to section 14217, 3 Comp. Laws 1915. When the causes were reached in the circuit, the defendant was entitled to have the legal question presented in the special appeals determined as matter of law. An appeal in this respect presents the characteristics of a certiorari. It does not appear that the attention of the court was called to the matter or a decision asked for. Instead, the defendant filed a motion to dismiss No. 3,453 (Circuit Court No. 78,944) and submitted his affidavit in support thereof. The reasons for dismissal are thus stated:
“(1) For the reason that there is another action now pending in this court between the parties hereto on appeal from judgment rendered by John F. McKinley, one of the justices' of the peace in and for the city of Detroit, on April 2, 1920, arising out of and involving the same claim or demand upon which this suit is brought, said other action being No. 78,945, in the circuit court for the county of Wayne.
“(2) For the reason that the amounts which the plaintiff is seeking to recover in this suit and the other suit mentioned above now' pending between the parties in this court, together constitute a part of and are included in air open running account between the parties hereto, said open running account constituting a single and entire demand, which cannot be split into more than one cause of action.
“ (3) For the reason that all the items for which the plaintiff seeks recovery in this action are included in the statement of an account rendered by plaintiff to defendant on October 31, 1919, and another action upon said account rendered is now pending in this court between the above parties.”
No motion was made in No. 3,456 (Circuit Court No. 78,945). The trial court denied the motion to dismiss and entered an order consolidating the two causes as No. 78,944.
The court’s attention was next called to the alleged error by a motion .of defendant to direct a verdict in his favor. The reason assigned was that an action other than 78,944 was pending—
“arising out of and involving the same claim or demand upon which the suit in this case (case No. 78,944) is brought, said other action being case No. 78,945, in .the circuit court for the county of Wayne.”
Other reasons presenting the same question in different language were stated. This motion the court reserved under the Empson act (3 Comp. Laws 1915, § 14568). Defendant preferred requests to charge as though the cases were being tried separately. In 78,944 he asked for a directed verdict for the reasons above stated. In 78,945 his requests related to the law applicable to certain facts in issue. After verdict, a motion non obstante veredicto- was made, based entirely on the motion to direct a verdict. This was denied and judgment entered for plaintiff.
It will thus be seen that at no time did defendant challenge the right of the plaintiff to maintain the second suit for the reason that it was splitting its cause of action, but his contention was that by doing so it could not maintain its first su.it. In this claim he was clearly in error. The plaintiff might sue on such items of the account as it chose. The only matter which could be considered in the first suit was plaintiff’s right to recover on the claim presented by its bill of particulars. For such amount as was found to be due on these items it was entitled to judgment.
When, however, the second suit came on for hearing, defendant with his plea could have given notice that he would insist on the defense he now raises. This question could not be raised by motion. Its disposition depended upon whether it was supported by the proof.'
With considerable reluctance, but impelled by the law which permits us on review by writ of error to consider and pass upon errors alleged to have occurred in the trial in the circuit court only, we must hold that the question as to whether plaintiff could lawfully bring two suits to recover its claim against defendant is not before us. See Mahiat v. Codde, 106 Mich. 387, and cases cited.
The judgment is affirmed.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Grant, J.
(after stating the facts). In the statement of the case the attorneys for both parties have trav eled outside the record, and made a statement of facts evidently as they expected to prove them. We have nothing to do with the facts except as they are set forth in the declaration. The sole question is, Does the declaration state a cause of action ? Counsel for plaintiff assert that this was a contract made by the defendant to pay the plaintiff $500, including the legacy left her by the will, if she would induce her father not to change his will. Counsel for defendant contend that the alleged contract is one relating exclusively to an expectancy and a division of the property of the ancestor. If it is the former, an action at law would lie; if it is the latter, such a contract is void at law, and can only be enforced, under certain circumstances, in a court of equity, in which case it is essential to show that the ancestor was informed of and assented to the arrangement. Needles v. Needles, 7 Ohio St. 432 (70 Am. Dec. 85); Clendening v. Wyatt, 54 Kan. 523 (38 Pac. 792, 33 L. R. A. 278); In re Kuhn’s Estate, 163 Pa. St. 438 (30 Atl. 215); In re Lennig’s Estate, 182 Pa. St. 485 (38 Atl. 466, 38 L. R. A. 378, 61 Am. St. Rep. 725).
We think the court erred in sustaining the demurrer. While not expressly alleged, we think it a fair inference from the declaration that the arrangement was made in the presence of the testator, and that he assented to it. If this be so, and the proof sustains these allegations, the law interposes no objection to a recovery. If, however, it shall appear by the proof that the father was not fully informed of the agreement, and did not assent to it, the plaintiff will not be entitled to recover. A secret contract made by one heir with, another to induce his ancestor to make a will, or to change or not to change a will already made, is against public policy, and void.
The judgment is reversed, and the case remanded for further proceedings.
Hooker, C. J., 'Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The respondent was convicted of the crime of seduction. He has brought the case here on exceptions before sentence. The information charged that the offense was committed August 19, A. D. 1900. The complaining witness testified to the commission of the offense upon that date. After she had given this testimony, the following occurred:
“ Q. Did he visit you recently after the 19th of August, at the time he was to your house on Sunday night?
“ A. Well, I don’t know. I think he stopped maybe once a week as he went through town.
“Prosecuting Attorney: Will I be permitted—
“ The Court: Now, you wish to show when the defendant stopped going to see the complainant ?
“ Prosecuting Attorney: Yes, your honor.
“The Court: And Mr. Eby objects to that. I think that fact alone may be shown.
“Mr. C. M. Eby: They make the election of the 19th of August, f 900.
The Court: Yes; they are bound by that. But this is tending to corroborate, that is all; and I permit you to show just that fact.”
On the cross-examination the witness testified to having had sexual intercourse with respondent the 1st of August, and upon several occasions prior thereto, she relying upon his promise to marry her. After the testimony was all in on the part of the, people, the respondent moved the court for his discharge, for the reason that the testimony of the complaining witness showed she was not a chaste woman on the 19 th of August, when it was charged in the inf or mation and proved on the direct examination the sexual intercourse occurred. Upon the argument of this motion the following occurred:
“The Court: Well, that is not alleged, you know. You select the 19th of August, and you are confined to that date, under the authorities. Now, if they had intercourse the day before, willingly, there is no seduction on the 19,th. The element of seduction is an inducement to seduce, whereby a chaste woman is seduced, — has intercourse. Now,’ of course, if a young girl promised to be engaged to marry, and the man took advantage of the promise, and persuades her, and she consents, why that is seduction. But if that thing has been going on for some time before that, when did the seduction commence? It commenced at the first intercourse, if it was done by virtue of the promise.
“Prosecuting Attorney: Well, if I understand your honor, that is'the evidence in the case. She testified—
“ 'The Court: You are not allowed to use that evidence in the case. You are bound tjy the date you select, and you select the 19th of August. You are permitted to show familiarity prior to that as corroboration of her story, but you can’t show a crime on any other day than the 19th. There are authorities when you elect a date you are bound by it, and that is the date alleged in your papers all the way through. I asked about it at the time, if you selected a date, and if the 19th was named in the complaint and information.”
The judge held the motion until the following Monday, when he overruled it. At the same time, against the objection of respondent, he allowed the complaining witness to be recalled, and to testify to an act of seduction occurring June 24, 1900. No proof was offered on the part of the respondent.
The judge was requested to charge, among other things, as follows:
“ If thejuryfind thatthe partieshad sexual intercourse at any time prior to the time alleged, then the jury must find, beyond a reasonable doubt, that the girl had reformed, and was a virtuous woman, at the time of the so-called seduction. And the burden of proving such reformation is on the prosecution. If the people haven’t so proven to your satisfaction beyond a reasonable doubt, then your verdict must be, ‘Not guilty.’ ”
“If the jury find the prosecutor elected the 19th of August, 1900, as the date of seduction, before any testi|mony was introduced, then they are bound by that date, rand cannot select some other date upon which they can ask a conviction; and, if you find the prosecutrix was not virtuous on the 19th of August, 1900, you must acquit.”
Which requests were refused, and the court charged the jury as follows:
“Seduction may be defined to be the act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasion, or wiles which are calculated and do have that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused. If, in this case, you find that the girl Meta Blanche was before and on August 19, 1900; of chaste character and virtue, and if the respondent, by arts, persuasion, wiles, and promise of marriage, induced her to depart from the path of virtue and to submit to the sexual embraces at that time, this would constitute seduction.
‘ ‘ In order to constitute the offense and convict the defendant, you must be satisfied from the evidence, beyond a reasonable doubt, that on the 19th day of August, or about that time, this girl yielded her person and her virtue to defendant by reason of a promise to marry, made by respondent at the time, and without which she would not have yielded to his embraces.
‘ ‘ If the parties had intercourse for the first time on the 24th day of June, and you are satisfied, beyond a reasonable doubt, that at that date the girl was chaste and pure, and that she yielded her virtue to respondent at that time because of a promise to marry made by the defendant, then the defendant is guilty of seduction, and may be convicted in this case.”
The question presented is whether, under an information charging the offense to have been committed August 19, 1900, and after testimony has been given for the purpose of proving the commission of an offense upon that date, testimony can be given tending to prove the commission of an offense in june, and the jury be allowed to convict upon the latter testimony. It is claimed upon the part of the people that the prosecuting attorney made no election of the date upon which he would rely for conviction. A reference to the record will show that the attorneys and the court understood there was an election. Not only was the offense charged as having occurred August 19th, but, with the presumption of chastity which the law throws around every woman, when the direct examination of the complaining witness was ended, if the jury believed her statement, the offense charged in the information was fully proven as of August 19th. It was not until the complaining witness was cross-examined that it developed that the offense was not committed. It was not a question of mistake in the date. An act of sexual intercourse occurred August 19th, but the cross-examination developéd that the parties had like intercourse, whenever opportunity offered, all through the summer, and so recently before August 19th that it could not be said the presumption was that the woman had reformed. After this had developed upon the trial, it was then sought to show acts in June, upon which a conviction was asked and permitted. We do not see how the case can be distinguished from the cases of People v. Jenness, 5 Mich. 305, and People v. Clark, 33 Mich. 112. In these cases the principles involved are so fully discussed that we do not deem it necessary to repeat the discussion.
The verdict is set aside, and a new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Per Curiam.
The relators, hotel keepers, applied to the circuit court for a mandamus to compel the board of supervisors of Gratiot county to allow a bill of $420 for board and lodging furnished to jurors while engaged in the trial of a cause in said court. The board answered the order to show cause, alleging 'that they had considered the claim, and found the charge to be exorbitant, and allowed the claim at $210, and that such sum was .reasonable compensation. Issue was not joined upon this question, and the writ was denied. The case is before us upon certiorari. The return is conclusive. We cannot determine the question of fact.
Order affirmed, with costs. | [
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Grant, J.
Certiorari to review the action of the boards of school inspectors in establishing a school district. Twenty-two freeholders of the township of Blendon petitioned the boards of school inspectors of the townships of Blendon, Zeeland, and Olive to organize a new school district in said' township of Blendon, to be known as “School District No. 8; ” the boundaries of said district to be formed from fractional districts No. 4 of Blendon and Zeeland, No. 4 of Zeeland and Blendon', No. 5 of Blendon and Olive, and No. 3 of Blendon. The inspectors met March 14, 1901, and proceeded to organize the district. A meeting of the voters of the district was called March 25th, and school officers elected.
The statute requires 10 days’ notice to be given by the township clerk of each township of the time and place of the meeting of the inspectors, by posting the same in three public places in the township, one of which must be in each of the districts to be affected by such alteration. 2 Comp. Laws, § 4653. The clerk of Zeeland township filed an unsworn statement that he posted the notices in three places. There is nothing in the statement made by him to indicate that these were public places. He stated that he posted one “at or near schoolhouse, district No. 4 of Zeeland and Blendon, one at the place of P. Yan Gelderen, and one at the place of C. De Jongh.” Another clerk returned that he posted one notice “near J. Won ninck and one near residence of Welleweerd.” These affidavits of posting contain nothing to show that these places were public places. It may not be essential to state that the places are public ones, but the description thereof must be such as to indicate that they were public places. These statements of posting might be entirely true, and yet the notices be posted in such manner and in such places as to entirely deceive the public, and to be no' compliance with the statute. Neither of the clerks of Blendon and Olive townships stated in his return that one of such notices was posted in the school district to be affected by the change. The posting of such notices and the proof thereof are essential to confer jurisdiction upon the boards of inspectors. Unless they have such proof before them, they act without jurisdiction, and their action is void. Graves v. School Inspectors, 102 Mich. 634 (61 N. W. 60), and authorities there cited.
It is urged that the writ of certiorari is not the proper remedy; citing Fractional School Dist. No. 1 v. Joint Board of School Inspectors, 27 Mich. 3; Jaquith v. Hale, 31 Mich. 430; Parman v. School Inspectors, 49 Mich. 63 (12 N. W. 910); People v. Gartland, 75 Mich. 143 (42 N. W. 687); Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391). Those cases do not control this. In most of those cases the writ was quashed because of delay in commencing proceedings, or failing to prosecute them. Meanwhile the districts had proceeded to complete their organizations, and had incurred expenses. In Jaquith v. Hale, proceeding was brought against the assessor of the school district to review errors, if any there were, to be found in the action of the township authorities. It was held that the remedy was unsuited to the case. In this case the relator moved with promptness. He notified the board at its first meeting, March 25th, that the proceedings were illegal, and he proposed to take steps to test them. The proceeding was commenced within 42 days. Meanwhile no expenses had been incurred, and no one can be injured by the application of this remedy. This case is controlled by Gentle v. School Inspectors, 73 Mich. 40 (40 N. W. 928); Fractional School Dist. No. 3 v. School Inspectors of Martin, 63 Mich. 611 (30 N. W. 198); Graves v. School Inspectors, 102 Mich. 634 (61 N. W. 60).
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Hooker, C. J.
The Stroh Brewery Company is a corporation organized under the laws of the State of West Virginia. All but one of its stockholders reside in Detroit, where its principal place of business is located, and where all of its property is situated and assessed for taxes. The authorities having assessed the relator for the value of his shares of stock in said corporation for city taxes for the year 1902, the circuit court ordered this assessment vacated, and the city has removed the case to this court by certiorari.
The Constitution of this State requires that there be a uniform rule of taxation, and we have held that this forbids double taxation; and while double taxation may occur under any law, and that fact may, perhaps, not invalidate an act not intended nor calculated to impose it, and may not invalidate assessments made under it and according to its provisions, a law which in its terms necessarily requires it, under ordinary conditions, must be held invalid, or so construed as to avoid it. Comstock v. City of Grand Rapids, 54 Mich. 641 (20 N. W. 623); Attorney General v. Board of Supervisors of Sanilac Co., 71 Mich. 16 (38 N. W. 639); Standard Life & Accident Ins. Co. v. Board of Assessors of Detroit, 95 Mich. 468 (55 N. W. 112); Detroit Citizens’ St. Ry. Co. v. Common Council of Detroit, 125 Mich. 675 (85 N. W. 96, 86 N. W. 809).
In this instance, all of the property of the corporation being in Detroit, and substantially all of the stock being owned there, the effect of these assessments is to impose a double burden on the owners of the corporate shares, for it is undeniable that they bear the' burden of the tax imposed upon the corporation, inasmuch as the shareholders constitute the corporation and indirectly own its property. The severity of these assessments is the more apparent, though not more real, because they include all of the property and substantially all of the shareholders of the corporation. If a small portion of the property were situate, and a small proportion of the stockholders resided, here, or if the property and shareholders were scattered •over the State, the difficulty of making assessments which should reach all the shareholders and all of the property without making a double burden would be great. There is no method provided for doing this, and it is doubtful if a rule could be made by which assessors could in all cases accomplish it.
Did the law provide for the assessment of all shareholders upon their shares in domestic corporations, and of all corporate property to the corporation, we should hesitate to say that such law was not in violation of the constitutional provision requiring uniformity. We are aware that many courts have held that such laws do not require double taxation, upon the very technical reasoning that the tax is not levied upon the same property, and that it is not imposed upon the same person; both of which propositions are true in a sense, but are also untrue in another substantial sense, as stockholders are likely to learn if the action of the authorities in this case is sustained. So, several of the text-books assert that the weight of authority sustains the rule that the States may impose taxes upon both corporation and stockholder, though, without exception, they admit the severity and injustice of such measures, and say that the courts will never permit it where the law; is susceptible of another construction. This practice is so palpably unjust that Michigan does not tax shareholders in domestic corporations, where the property of the corporation is taxed. It does not even tax private persons upon property invested in business outside of the State, provided they do not invest in business conducted by foreign corporations; thereby making a most invidious discrimination against the latter, and in favor of the former, class, for they relentlessly tax a citizen who invests in a corporate business outside of the State, and the law goes so far, if technically construed, as to tax the resident stockholder in a foreign business corporation, although such corporation conducts all of its business in this State, and is here taxed upon all of its property; and this is what the authorities of Detroit seek to accomplish in this case. The policy of taxing property here which is not in this State, and which is taxed elsewhere, is an unjust and narrow one, and one well calculated to impede the progress of the State. While we were obliged to hold in Bacon v. Board of State Tax Com’rs, 126 Mich. 22 (85 N. W. 307), that the law might tax citizens whose property was invested in corporations in other States, the corporate property not being in Michigan, we were careful not to recognize the practice as either just or politic. The following quotation from a distinguished law writer indicates the policy of the more progressive States:
“It is undoubtedly within the constitutional power of the legislature of a State to enact a statute that persons residing in that State, who are stockholders in a corporation created by another State, shall be taxed on their shares of stock at their residence within the former State. This principle of law is based on the fact that shares of stock are personal property; that they are distinct from the corporate property, franchises, and capital stock; that they follow the domicile of their owner, like other personal property; and that consequently he may be taxed therefor wherever he may reside. It accordingly is a question of policy and expediency with a State whether or not it will tax its citizens who are stockholders in foreign corporations. A few of the States levy such taxes. But New York pursues the more broad and liberal policy that shares of stock should not be taxed where the corporation is already taxed; that the State which furnishes facilities to the corporation for the earning of dividends should have the sole benefit of taxes on such corporate interests; that a tax on resident stockholders in nonresident corporations would generally result in a double taxation of stockholders not residing in the State creating the corporation; and that interstate comity, interests, and financial investments are promoted best by taxing corporations directly, and not levying a tax on either resident stockholders in nonresident corporations or resident stockholders in resident corporations where the corporation itself is subject to taxation. The injustice of a tax on resident stockholders in foreign corporations is at once apparent when it is considered that the State creating the corporation nearly always taxes the corporation itself or all its stockholders, resident and nonresident, and that, if stockholders residing elsewhere are taxed again where they reside, they are taxed both in the State of the corporation, directly or indirectly, and also directly in the State where they reside. No reduction need be allowed in the latter State for taxes levied upon the corporation in another State.” 2 Cook, Corp. § 565.
New York has long recognized this rule. Pennsylvania has adopted a similar rule. New Jersey imposes no tax upon shares except of banks. Texas does not tax shares where the corporate property is taxed. In California the legislature relieved domestic corporations by the following enactment:
“Shares of stock in corporations possess no intrinsic value over and above the actual value of the property of the corporation which they stand for and represent, and the assessment and taxation of such shares and also of the corporate property would be double taxation. Therefore all property belonging to corporations shall be assessed and taxed, but no assessment shall be made of shares of stock, nor shall any holder thereof be taxed therefor.” 1 Deer. Codes & Stat. § 3608.
This act was sustained and applied in the case of People v. Badlam, 57 Cal. 594, and Spring Valley Waterworks v. Schottler, 62 Cal. 69, 118. “But the temptation to tax stockholders in nonresident corporations was yielded to,” in the face of the solemn declaration that “shares of stock in corporations possess no intrinsic value over and above the actual value of the property of the corporation which they stand for and represent.”
There is reason to believe that the concensus of opinion in Michigan is in accord with the views expressed in the quotation, for the provision requiring shares of stock to be assessed was quite generally disregarded, if not practically obsolete, until brought into prominence through the recent agitation of the subject of “equal taxation,” and the efforts of the authorities to see that all property is listed in obedience to law. The effect is double taxation of such shareholders, as they are taxed at home and abroad. We have been compelled to sustain double taxation in some cases, because we felt constrained to hold that the constitutional inhibition against double taxation only applies to such taxatiqn by this State. See City and County of San Francisco v. Fry, 63 Cal. 470; Bacon v. Board of State Tax Com’rs, supra. It has not been held in this State that a case like the present does not involve double taxation, and we have never held that such a double taxation would be legal. We should hesitate to hold that it would not be double taxation, and therefore legal, in the case of an assessment of shares in a domestic corporation whose property was actually taxed in this State, and we see no justification for declaring a different rule where the corporation is( a foreign one.
The taxation of shares to the shareholder, and property to the corporation, is clearly double taxation, within the spirit of the constitutional provision, and while we appreciate the fact that the shareholders and the corporation are different entities in the law, and that shares of stock are recognized as property, and distinct from the corporate property, it is plain that the shareholders are the corporation, and that they are the owners of its property. The Constitution does not permit the taxation of both property and shares, and we must, if possible, give such a construction to the law as to make it reconcilable with the Constitution.
A reference to the tax law of 1885 shows that it was the policy of the State at that time to tax shares of foreign corporations only when the property was not taxable in Michigan. See Graham v. Township of St. Joseph, 67 Mich. 654 (35 N. W. 808). In this case it was held that the shares were properly assessed, for the reason that the property of the foreign corporation had no situs in this State. The same provision was continued in the tax law of 1889, i. e., “Shares in corporations, the property of which is taxable to itself, shall not be assessed to the shareholder.” Pub. Acts 1889, Act No. 195, § 2. The same provision is found in the law of 1891. Pub. Acts 1891, Act No. 200, § 2. In 1893 the law was changed so as to read: “All shares in corporations organized under the laws of this State, when the property of such corporations is not exempt, or is not taxable to itself; or when the personal property is not taxed.” Pub. Acts 1893, Act No. 206, § 8, subd. 7. And this has been since continued. Subdivision 9 provides: ‘ ‘All shares in foreign corporations, except national banks, owned by citizens of this State.” Thus by a different arrangement of the provisions, which were otherwise substantially unchanged, it is possible to claim that the legislature intended to tax foreign corporations on property, and shareholders on shares, contrary to the established policy of the .State, and contrary to the spirit of the Constitution. Under these circumstances, we feel justified in holding that this exception should apply to both foreign as well as domestic corporations, as it had before the passage of the act of 1893; and this is foreshadowed in Bacon v. Board of State Tax Com’rs, supra.
A discussion of this question should not ignore the authorities, of which there are many. It has been said by many law writers and judges that a State has authority to tax both corporation and shareholder. Mr. Justice Cooley says, in his work on Taxation, that “a tax on the shares of stockholders in a corporation is a different thing from a tax on the corporation itself or its stock, and may be laid irrespective of any taxation of the corporation, when no contract relations forbid.” Cooley, Tax’n (2d Ed.), p. 231. See, also, Burroughs, Tax’n, § 86; 2 Cook, Corp. § 565. These authors refer to substantially the same authorities, of which the following are the more important: President, etc., of Tremont Bank v. City of Boston, 1 Cush. 144; New Jersey R. & Transp. Co. v. Collectors of City of Newark, 25 N. J. Law, 315; Jersey City Gaslight Co. v. Mayor, etc., of Jersey City, 46 N. J. Law, 195; Conwell v. President, etc., of Town of Connersville, 15 Ind. 150; Whitesell v. County of Northampton, 49 Pa. St. 526; Van Allen v. Assessors, 3 Wall. 585; First Nat. Bank of Louisville v. Kentucky, 9 Wall. 360; City of Memphis v. Ensley, 65 Tenn. 558 (32 Am. Rep. 532); Nashville Gaslight Co. v. Mayor, etc., of Nashville, 76 Tenn. 410; Street-Railroad Co. v. Morrow, 87 Tenn. 406 (11 S. W. 348); Salt Lake City Nat. Bank v. Golding, 2 Utah, 8; City of New Orleans v. Canal & Banking Co., 32 La. Ann. 157; State Bank of Virginia v. City of Richmond, 79 Va. 113; C. N. Nelson Lumber Co. v. Town of Loraine, 22 Fed. 54; Cook v. City of Burlington, 59 Iowa, 252 (13 N. W. 113, 44 Am. Rep. 679); Henkle v. Town of Keota, 68 Iowa, 338 (27 N. W. 250); Frazer v. Siebern, 16 Ohio St. 614. Of these, nearly all were cases which did not involve the question of the authority of the State to provide for double taxation under a constitution forbidding it, and while this power, i. e., that of double taxation, is denied by the Iowa supreme court in Cook v. City of Burlington, supra, although there be no constitutional inhibition, many of the cases cited state the true rule to be that, unless restricted by the constitution, a State may impose a double tax. It is true that many of them assert that this is not double taxation, upon the theory herein-before stated, and they are authority to that extent, and therefore pertinent to this question.
On the other hand, we find that this doctrine is denied in Ang. & Ames, Corp. § 461; and in Burroughs, Tax’n, p. 171, § 86, it is said that “in the work of Messrs. Angelí and Ames a contrary doctrine is asserted,” etc., though the author questions the authorities cited. In 2 Spell. Priv. Corp. § 1114, it is said that taxation pf property and shares is duplicate taxation. A large number of cases hold that it is double taxation, while they admit that shares are not corporate property. Smith v. Burley, 9 N. H. 423; Tax Cases, 12 Gill & J. 117; Gordon v. Mayor, etc., of Baltimore, 5 Gill, 231; Mayor, etc., of Baltimore v. Railroad Co., 6 Gill, 288 (48 Am. Dec. 531); State v. Railroad Co., 40 Md. 50; County Com’rs of Frederick Co. v. Bank, 48 Md. 117; State v. Branin, 23 N. J. Law, 484; American Bank v. Mumford, 4 R. I. 478; Hannibal, etc., R. Co. v. Shacklett, 30 Mo. 550; State v. Railroad Co., 37 Mo. 265; State v. Railway Co., 77 Mo. 209; Valle v. Ziegler, 84 Mo. 219; People v. Badlam, 57 Cal. 594; City and County of San Francisco v. Fry, 63 Cal. 470; Same v. Flood, 64 Cal. 505 (2 Pac. 264); Pennsylvania Co. for Ins. v. Com., 22 Week. Notes Cas. 340, 15 Atl. 456; Gillespie v. Gaston, 67 Tex. 599 (4 S. W. 248); Cheshire County Tel. Co. v. State, 63 N. H. 167; Board of Com’rs of Rice Co. v. Bank, 23 Minn. 280. Many of the above cases expressly hold that such double taxation is prohibited by statutes and constitutions requiring uniformity. See, also, Lenawee Co. Sav. Bank v. City of Adrian, 66 Mich. 273 (33 N. W. 304).
It is never to be presumed that a legislature intended a double tax if such conclusion can be reasonably avoided. Pennsylvania Co. for Ins. v. Com., 22 Week. Notes Cas. 340, 15 Atl. 456; Board of Revenue of Montgomery Co. v. Gaslight Co., 64 Ala. 269; Salem Iron Factory Co. v. Inhabitants of Danvers, 10 Mass. 514; Tennessee v. Whitworth, 117 U. S. 137 (6 Sup. Ct. 645); Hannibal, etc., R. Co. v. Shacklett, 30 Mo. 560; State v. Railroad. Co., 37 Mo. 265; New York, etc., R. Co. v. Sabin, 26 Pa. St. 245.
It follows that, when the assessors and board of review were advised of the assessment of all of the corporate property to the corporation, they should have removed the assessment against the shareholders.
We do not feel called upon to ignore the plain meaning of our Constitution by carrying the principles that the corporation and its shareholders are different persons, and the corporate property and the shares different property, so far as to say that the taxing of both is not double taxation in the common acceptation of the term or in the sense of the Constitution.
Moore, Grant, and Montgomery, JJ., concurred.. Long, J., did not sit. | [
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Moore, J.
The plaintiff is an attorney at law. He brought this suit to recover $265.20 for services rendered and for expenses incurred by him, which he claims defendant should pay. The case was tried by a jury, who rendered a verdict for $193.50. The case is brought here by writ of error.
The defense claimed is: First, that plaintiff was never employed by defendant; second, that, when the case which Mr. Lillis was employed to defend was about to be tried, he abandoned it, without cause, making it necessary to employ another attorney, who did not have time to familiarize himself with the case before it was brought to trial, and the service rendered by Mr. Lillis was of no value. In our view of the case, it will not be necessary to express any opinion in relation to the second of these defenses.
The record discloses that in December, 1899, one Erard was injured on the Detroit & Pontiac Railway. At this time the railway company had a policy in the American Mutual Indemnity Company insuring it against loss by reason of such accidents as Erard claimed to have suffered. A similar policy was taken by the railway company in the Pennsylvania Casualty Company, January 1, 1900. In June or July, 1900, Mr. Erard sued the railway company. The declaration commencing suit was forwarded by the railway company to Mr. Kingsbury, who was assistant to the president of the American Mutual Indemnity Company and secretary of the Pennsylvania Casualty Company, living at Scranton, Pa. The declaration was delivered to Watson, Diehl & Kemmerer, who were the general attorneys of the American Mutual Indemnity Company, and local attorneys of the Pennsylvania Casualty Company. Mr. Watson, of this firm, was president of both companies. He was absent from home at this time, and Mr. Diehl, assuming the Pennsylvania Casualty Company was interested in the litigation, sent the declaration by letter to Mr. Lillis, writing him, in the name of Watson, Diehl & Kemmerer, that the railway company was insured in the Pennsylvania Casualty Company, of which his firm were the general attorneys, and directing him to appear in the case, and make a defense. Mr. Lillis entered an appearance in the case, and looked after it, and employed an officer to look up the testimony. Afterwards he did all his correspondence with the American Mutual Indemnity Company, and before bringing suit presented his bill to that company, explaining his action in doing so by saying that he had mislaid the letter from the attorneys inclosing the declaration, and, having attended to a suit of like character before, in which the American Mutual Indemnity Company was looking after the litigation, he supposed it was doing so in this case. Later, Mr. Lynch, who had attended to other business for the railway company, received the following letter:
“Detroit & Pontiac Railway Co., Detroit.
“Office, 217 Hammond Building.
“Detroit, Mich., September 21st.
“James H. Lynch, Esq.,
“Pontiac, Mich.
“ Dear Sir: The Pennsylvania Casualty Company has requested us to take active interest in the Erard matter, and I suppose they have written Mr. Lillis to the same effect. Will you please consult with him, bringing up the matter especially of improving the strength of the medical testimony?
“Yours truly,
“Strathern Hendrik,
“Manager.”
After receiving this letter he showed it to Mr. Lillis, and sought to have a consultation with him. Mr. Lillis took offense at this condition of affairs, and at once wrote to the attorneys who had sent him the declaration, and also to the American Mutual Indemnity Company, withdrawing from the case. Upon receipt of the last-named letter the following telegram was sent:
“Scbanton, Pa., Sept. 24, 1900.
“M. F. Lillis, Esq.,
‘ ‘ Pontiac:
“ I do not understand your letter. Want you to take care of the Erard case. See Kingsbury at the Russell House. ■ W. W. Watson.”
Upon receipt of this telegram Mr. Lillis went to the Russell House, but, as Mr. Kingsbury had gone to Pontiac, they failed to see each other. The result was that Mr. Lillis gave Mr. Lynch such papers and files as he had, and the députy sheriff co-operated with Mr. Lynch, who tried the case. Mr. Lillis did not participate in the trial, which commenced September 26th, and resulted in a very considerable verdict against the railway company. Mr. Lillis presented his bill to, and had some correspondence with, the American Mutual Indemnity Company; and later, having found the letter in which the declaration was sent to him, and being unable to effect a settlement, instituted this suit.
The record is very clear that the Pennsylvania Casualty Company was not the successor to, and did not assume the liabilities of, the American Mutual Indemnity Company. It is also clear it was not interested in the litigation between Mr. Erard and the railway company. It is equally clear that there is an entire failure to show a hiring of Mr. Lillis by the defendant company, or by any one authorized by it to hire him. Mr. Lillis no doubt performed active and valuable services, and acted in good faith. There seems to have been an unfortunate mistake all around as to the relations of the parties to each other. It is probable, had not this mistake occurred, there would have been no trouble, and no occasion for this litigation; but, under the rule of law putting the burden of proof upon Mr. Lillis to make his case, we think it was the duty of the court to direct a verdict in favor of the defendant.
The judgment is reversed, and a new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This is a bill of interpleader, wherein a decree of interpleader was awarded to complainant. There was no appeal taken from this decree. The case then came on to adjust the equities between the defendants, and a decree was made as follows:
“It is ordered, adjudged, and decreed that the fund paid into court by complainant be distributed as follows:
“ First. That the sum of two hundred and fifty-two dollars, and interest from February 14, 1900, be paid to defendant John W. McGrath, he having the first lien upon said fund.
“ Second. That the sum of one hundred and seventy-five dollars, and interest from November 23, 1899, be paid to the defendant James H. Pound.
“ Third. That the sum of one hundred and ninety dollars, with interest from November 23, 1899, to wit, tbe sum of eighteen dollars and eighty-five cents, be paid to Sophia Keith, or her solicitor, Maier B. Breitenbach.
“ Fourth. That the register of said court pay out of said fund the fee on final decree herein.
“ Fifth. That .the balance be paid over to the defendant Thomas S. Parker, receiver of William Jacquemain; it appearing that the amount due said receiver is in excess of the balance of said fund after the payments aforesaid.”
An appeal was duly taken by the defendant Alfred Canney, who insists the decree should be reversed as to the claim of Mr. McGrath and Mr. Parker, receiver; that it should stand as to the claim of Mr. Pound, and be modified as to the claim of Mrs. Keith.
Alfred Canney and complainant, Sophia Canney, were for many years husband and wife, and, before complainant sued him for a divorce, they jointly owned a lot of land in the city of Detroit,— a single lot,— upon which were two dwelling houses, one of which was rented. Complainant filed a bill of complaint for a divorce. There was a contest, in which Mr. McGrath appeared as the solicitor for Mr. Canney. After a hearing, a decree was granted. In this decree Mrs. Canney was required to deed her interest in the real estate to her husband upon his paying her $2,500 within a certain time, and, upon his failure to do so, he was required to deed to her his interest in the houses and lot upon her paying to him $800. Mr. Canney did not pay the $2,500, and, before Mrs. Canney paid the $800, she was notified by various parties that they claimed a lien upon the fund. As she did not know to whom to pay the money, this bill was filed.
A good many questions are raised by counsel, but we regard two of them as decisive. The first question to be considered is whether Mr. McGrath is entitled to a lien upon the fund. It is evident that in the divorce case the circuit judge regarded the real estate, with the two houses upon it, as worth $3,300. The title was in both the parties. Each had an interest in the houses and lot, if each interest was of like value, of $1,650. In addition to decreeing to the complainant the value of her interest, she was awarded a portion of the interest of defendant, so that complainant’s interest in the houses and lot was determined by the decree to be $2,500, while the defendant’s interest was decreed to be $800. Can it be said this $800 is the result of the litigation, or is it the residuum ? Suppose the real estate, instead of being one lot of land with its buildings, was 33 acres of land, each acre of which was of the same value, and it had been decreed that the title to 25 acres should be in Mrs. Canney, and 8 acres in Mr. Canney, would it be claimed the solicitor had a lien upon the 8 acres for the value of his services ? If not upon the land, why upon the proceeds of the land ? In the divorce proceedings an original bill and a cross-bill were filed, in which each of the parties accused the other of wrongs against the marital relation. The primary question was whether a decree of divorce should be granted. As an incident, after that question was settled, the question of the division of the property arose. Both of these questions were decided adversely to Mr. Canney. No property came to him as the result of the litigation which he did not have before it began, but the reverse of that is true. It cannot be said a decree was obtained against Mr. Canney because of the services of his solicitor, but that it was obtained notwithstanding his efforts. In the second edition of Jones on Liens, at page 100 (§ 153), it is said:
“The lien of an attorney upon a judgment is properly denominated a lien in the broad sense of the term, although it rests merely on the equity of the attorney to be paid his fees and disbursements out of the judgment which he has obtained. It is not a lien that depends upon possession, as liens ordinarily do. There can be no possession, of a judgment, for this exists only in intendment of law. The execution issued upon a judgment does not represent the judgment, and the possession of the execution is not a possession of the judgment. In regard to possession, this lien of an attorney resembles the maritime lien of a seaman upon the vessel for his wages. Both liens are exceptions to the general rule as respects the element of possession.
“This lien, therefore, not arising from a right on the part of the attorney to retain something in his possession, but being a right to recover for his services in obtaining a judgment for his client, is called the attorney’s charging lien. It is so called because the costs and fees of the attorney are made a charge upon the judgment recovered, and this charge is enforced by the court. Some confusion has arisen in the decisions on this subject from a failure in many cases to observe the distinction between the retaining lien and the charging lien. The latter lien never extends beyond the costs and fees due the attorney in the suit in which the judgment is recovered;' but a retaining lien extends to the general balance due the attorney from the client for professional services, and his disbursements in connection therewith. In other words, the charging lien is a special lien, and the retaining lien is a general lien.”
At page 102 (§§ 155,156) it is said:
“An attorney’s lien upon a judgment, as by force of usage we are permitted to designate his claim upon the judgment recovered, is .founded upon the same equity which gives to every person who uses his labor and skill upon the goods of another, at his request, the right to retain the goods till he is paid for his labor. This equitable principle is derived from the civil law. It is considered reasonable and proper that an attorney, by whose labor and at whose expense a judgment has been obtained for his client, should have an interest in that judgment which the law will regard and protect. Lord Kenyon declared ‘ that the convenience, good sense, and justice of the thing required it. ’ * * * It was doubtless recognized upon the ground of justice that the attorney had contributed by his labor and skill to the recovery of the judgment, and the court, wishing to protect its own officers, exercised its power to that end; or, as Lord Kenyon puts it: ‘ The party should not fun away with the fruits of the cause without satisfying the legal domands of his attorney, by whose industry, and, in many instances, at whose expense, those fruits are obtained.’”
This does not indicate that where a decree is obtained against a client, and he happens to have some property left after the decree is satisfied, the solicitor has a lien for his services upon that property. The conditions in this case are not such as to give the solicitor a lien upon the $800.
It is said the decree in favor of Mr. Parker, who represents creditors, should not be permitted to stand, because the fund represents the homestead of Mr. Canney; that he had no desire to have his homestead sold; and, because the court compelled a sale, that he cannot be deprived of the results of the sale, but is entitled to the fund, as against his creditors, to reinvest in a homestead. Section 2, art. 16, of the Constitution, provides for the exemption of a homestead to residents of the State. See, also, section 10362, 3 Comp. Laws. These provisions of the Constitution and the statute have been liberally construed. See Eagle v. Smylie, 126 Mich. 612 (85 N. W. 1111), and Corey v. Waldo, 126 Mich. 706 (86 N. W. 122), where there is quite a full collation of the authorities. Under the facts disclosed by this record, we do not think the general creditors of Mr. Canney were entitled to this fund.
The remaining question is, Should the decree as to Mrs. Keith be modified? Mr. Canney was a witness in the divorce case. It was claimed he then committed perjury. He was arrested upon that charge. At about that time he assigned his claim to the fund to his sister, Mrs. Keith. The assignment was in the usual form, and authorized her to receive the money, and to receipt for it. The claim is made that the purpose of the assignment was to enable Mrs. Keith to procure bail for her brother, and to enable her to aid him in making his defense in the criminal case. The solicitor for Mr. Canney in his brief says he wants Mrs. Keith to have all she is equitably entitled to, but claims the amount allowed her is much too large. Mrs. Keith appears to have been, as a sister naturally would be, very much interested in her brother when he was arrested, and spent much time in his behalf. She carried food to him at the jail, she procured bail for him, and,'after it was done, made a home for him at her house. She loaned him money. Counsel was procured for him. There is a dispute between the parties as to what she did, and how much she has received. She certainly rendered services along the line which was contemplated when the assignment of the fund was made to her, and we are not satisfied the circuit judge allowed her too much.
The decree is reversed as to Mr. McGrath and Mr. Parker, receiver, and affirmed in all other respects.
Hooker, O. J., Grant and Montgomery, JJ., concurred. | [
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] |
Grant, J.
(after stating the facts). Defendant introduced the entries upon the docket of the justice of the peace, and rested. Plaintiff then offered in evidence the files in the case, including the affidavit upon which the writ of attachment was based. Defendant objected, insisting that the docket entries were conclusive, and could not be impeached by the introduction of the files. The affidavit was admitted. Defendant introduced evidence tending to show that the affidavit found in the files of the case was not the affidavit upon which the writ was issued. The court found against this contention. The evidence was 'conflicting. We cannot, therefore, disturb the finding.
Statutory attachment proceedings are in derogation of the common law, and the proceedings thereunder must be strictly complied with. The affidavit was in the alternative, and is conceded to be void, under Kegel v. Schrenkheisen, 37 Mich. 174. The affidavit in these proceedings is jurisdictional, and, if the affidavit is void, the whole proceeding falls with it. Jurisdiction will not be presumed. Defendant was required to show a valid affidavit for the attachment and judgment under which it claimed protection. Goodrich v. Burdick, 26 Mich. 39. The affidavit was not offered to impeach the record. The entry did not assert its validity. Without a valid affidavit, the court does not obtain jurisdiction, unless the jurisdictional defect is waived by general appearance.
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. ' . | [
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] |
Moore, J.
Plaintiff sued to recover $300 and interest. The case was tried by the circuit judge, who made findings of fact and law, and entered a judgment in favor of plaintiff for $222.18. The case is brought here by writ of error.
The record discloses that in October, 1897, plaintiff sold defendant her restaurant and bakery for $500. There was at this time in the restaurant a soda fountain bought of one Zwietusch for $450, the title to which was to remain in him until paid for, and two soda founts bought of Tufts for $60, the title to which was not to pass until paid for. The plaintiff gave defendant a bill of sale in the usual form. These soda founts and the soda fountain were included in the list of articles mentioned in the bill of sale. The closing part of the bill of sale was as follows:
“In witness whereof I have hereunto set my hand and seal this 9th day of October, A. D. 1897.
“There is $200.00 yet to pay on soda fountain, which Mr. Walker is to pay.
“Dora Bice. (L. S.)”
The defendant did not sign this bill of sale. He paid $40 at the date of the bill of sale. October 23, 1897, he accepted an order given Mr. Dehn for $120, due, $40 on December 9th, January 9th, and February 9th. These amounts he paid with another payment, making $200 paid in all by him. The two soda forints were taken from him on the 12th day of November. He knew as early as the 1st of December that Mr. Zwietusch claimed there was more than $200 due on the soda fountain, and had some correspondence with him about a settlement of his claim. December 9th Mr. Zwietusch accepted an offer made by-Mr. Walker, but for some reason it was not carried out. December 18th he offered to accept $217.82 as the balance due him on the soda fountain. This was not paid, nor was any payment made by Mr. Walker to apply on the soda fountain. In the latter part of February or the first of March it was taken away by Mr. Zwietusch. When Mr. Walker learned the situation as to the soda founts and the soda fountain, he did not attempt to rescind the shle and return the property to Mrs. Bice, and he has never returned any part of it to her. He did not pay Mrs. Bice the $300 she claimed was due her, and this suit was brought to recover that amount.
Upon the trial Mrs. Bice sought to show that Mr. Walker was informed, at the time the bill of sale was drawn, that nothing had been paid on the two soda founts, but the court refused to permit her to do so. Upon the trial it did appear that Mr. Walker was informed that the payments made upon the soda fountain were represented by notes, which were taken up at the time the several payments were made, all of which notes were, at the time the bill of sale was drawn, delivered to Mr. Walker, so that, if he had looked over these notes, he was fully advised of the amount of payments which were actually made. It was the claim of plaintiff that Mr. Walker was told the amount remaining unpaid was $200 and the interest. It is the claim of defendant that, as the bill of sale represented the title of the soda founts and the soda fountain to be in the plaintiff, and but $200 was unpaid upon the soda fountain, when it appeared this was not so there was a breach of the contract, and defendant was not obliged to pay more than $200 upon the soda fountain, and if, as a result of his refusal to do so, the soda fountain was taken away from him, that he could recoup the value of the soda founts, $60, and the value of the soda fountain less the $200, which would be $250, amounting in all to $310; and, as this was more than the $300 unpaid to Mrs. Bice, a judgment should have been rendered in his favor. The circuit judge held that Mrs. Bice was bound by the statements contained in the bill of sale, and refused to consider the oral testimony as to what was told to Mr. Walker. He allowed the defendant, by way of recoupment, $60, the value of the two soda founts, and also allowed him the difference between the $200 he had agreed to pay and the' $217.82, for which Mr. Walker could have settled with Mr. Zwietusch.
As the plaintiff has not appealed, we are not called upon to decide whether the court erred in refusing to consider the oral testimony, but we are all agreed that defendant has no reason to complain of the result reached by the circuit judge.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery,- JJ., concurre^. Long, J., did not sit. | [
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Montgomery, J.
The plaintiff recovered a verdict and judgment for damages in an action for negligent injury. Defendant brings error.
The defendant is the owner of the steam propeller Ossifrage, plying between Cheboygan and Sault Ste. Marie, and touching at Detour. The plaintiff is a dealer in fish, and was accustomed to furnish fish to the steward of defendant’s boat. On the 23d of August, 1897, he went down to the Watson Dock, so called, on noting the approach of the Ossifrage, for the purpose of taking an order. His evidence shows that he stood a few feet from the dock line, and was called to by the mate of the boat and requested to take the line; that, while in the act of doing so, the steamer came alongside. The force with which the steamer struck the dock broke the fender rope, and caused the fender to fly over against the plaintiff with great force, causing serious injuries. The declaration counts on two grounds of negligence: First, that the boat approached the dock with too great a speed and headway, thus causing the fender strap to break; and, second, that the fender strap was rotten, unsound, and unfit for the purpose for which it was used.
The circuit judge submitted the case to the jury in a charge which appears unobjectionable, if the case was a proper one for the jury to consider. It is contended, however, that a verdict for the defendant should have been directed. It is contended that no negligence was shown on the part of defendant, and that plaintiff was guilty of contributory negligence.
The evidence on the part of the defendant tended strongly to show that the fender strap was a new rope, which had been in use but a few days, and that the boat was properly managed. If this testimony cannot be said to have been contradicted, directly or indirectly, it would follow that no negligence was shown in this respect. We are impressed, however, that it is not the usual thing for the fender strap of a boat to break at every landing, thus causing the fender to fly onto the dock with great force, causing damage to persons or property in its way. The very fact that such a thing occurs suggests an inquiry, at least, as to whether there was fault in management or equipment. An examination of the record satisfies us that there was evidence justifying the inference that the defendant was negligent in each particular alleged. The testimony as to the condition of the rope was its condition and appearance. It was described as an old, dead line, together with the testimony of competent seamen that, under proper management, a new, strong strap would not part, — a statement which we should hope might be verified by experience.
As to the plaintiff’s contributory negligence: Dealing with the subject somewhat abstractly, it would be rather startling to say that one having business with an approaching steamer is guilty of negligence-if he approaches near enough to it to be struck by a projected broken part, in case such part is projected through mismanagement or fault in equipment. Defendant cites plaintiff’s testimony on cross-examination stating that it was dangerous where he stood; but, on redirect, plaintiff stated that, if the fender strap had been sound, there would have been no danger. We think the question of plaintiff’s contributory negligence was likewise a question for the jury.
Judgment affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Grant, J.
(after stating the facts). 1. The negligence alleged is the failure to stop the train a reasonable length of time for her to alight, and the sudden stoppage of the train without notice or warning, or giving her sufficient time to re-enter the car. It is admitted that no warning was given, but it is insisted that she knew of the danger, and was herself negligent in not re-entering the car, or taking reasonable precautions to protect herself.
The conflict of testimony upon the length of time the train stopped rendered the question a proper one to submit to a jury. Every passenger is entitled to sufficient time within which to alight after the train has stopped. 3 Thomp. Neg. § 2876. It is also the duty of the passenger to move with reasonable promptness and speed. If- railroad companies see fit to permit their cars to be crowded beyond their capacity, either upon excursions or otherwise, they are bound to see that passengers have a reasonable time, and are afforded reasonable facilities, to extricate themselves from the crowd and alight. The length of time will depend upon circumstances. Where the train is crowded and passengers are occupying the-aisles, a longer time is required than when the train is occupied with the ordinary number of passengers.
Whether, as a matter of law, the brakeman, under his own testimony, was guilty of negligence in giving no warning to or taking no steps to protect the plaintiff be fore stopping the train, we need not determine. The question of negligence was left to the jury. If the conduct of the brakeman was negligence per se, the defendant has no cause of complaint because it was left to the jury. When a passenger has reached the platform in his efforts to alight, and finds the train moving, it is negligence to cause the train to be so suddenly stopped as to 'throw the passenger down, when no reasonable effort has been made to secure his safety. The evidence upon all these points was sufficient to .justify the court in submitting the question of the defendant’s negligence to the jury.
2. The question of contributory negligence was properly left to the jury. Plaintiff was notified and invited to alight. According to her evidence, she had exercised diligence in moving to the platform for that purpose. Arriving upon the platform, she found the train in motion. Instantly the brakeman signaled the engineer to stop. Evidently it was but a few seconds between her informing the brakeman that she desired to alight and the sudden stoppage of the train. The brakeman: acted in great haste. The risk of stopping a train under these circumstances was not one of the risks assumed by travelers. We cannot say that she was guilty of contributory negligence in not attempting to re-enter the car, or to let go of her dress and take hold of the railing to protect herself. Her conduct, in view of all the testimony, became a question for the scrutiny of the jury. It cannot be said that the average prudent person would have acted differently from what she did, in view of the entire surroundings. It is unnecessary to discuss the facts further. The case is squarely within Strand v. Railway Co., 64 Mich. 216 (31 N. W. 184).
3. The learned counsel for defendant have selected a few isolated sentences from the charge of the court, and allege error upon them. When read in connection with the entire charge, they become harmless, even if they were erroneous. The learned judge very clearly in his charge, read as a whole, left to the jury the two questions of negligence and contributory negligence, with ample evidence on which to sustain the conclusions reached by the jury.
The judgment is affirmed.
Hooker, C. J,, Moore and- Montgomery, JJ., concurred. | [
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5
] |
Moore, J.
The defendant is superintendent of Mackinac Island State Park. In June, 1901, the commissioners having charge of that park adopted the following resolution :
“Resolved, that the park superintendent be authorized and directed to collect a license fee from each driver of vehicles used for hire, as follows: One dollar yearly for each one-seated carriage, two dollars yearly for each two-seated carriage, and three dollars yearly for each three-seated carriage.”
In the summer of 1901 Mr. Kerrigan was the owner and driver for hire of one two-seated carriage and of one three-seated carriage, and on demand of Mr. Poole, superintendent, and under protest, paid license fees amounting to $5 for the carriages owned and driven by him. Mr. Kerrigan had before this paid a license fee exacted of him by the authorities of the city of Mackinac Island. The sole question is whether the commission having charge of this park has the right to collect fees from owners of carriages for hire, using the roads running through the park.
Mackinac Island contains about 2,200 acres, about half of which is contained in this park. The title to the land contained in the park has for a great many years been in the government of the United States. There has been the following legislation in relation to these lands:
An act of Congress of March 3, 1875 (18 Stat. 517), by which all of the island of Mackinac then held by the United States, under military reservation or otherwise, excepting the fort, and the land extending 400 yards each way from the flagstaff, was reserved and withdrawn from settlement, and dedicated and set apart as a national park, under the control of the secretary of war.
An act of Congress of March 2, 1895 (28 Stat. 946), to turn over to the Statfe, for use as a State park, the lands of the National Park on Mackinac Island, which provided:
“Military Reservation on Mackinac Island, Michigan) The secretary of war is hereby authorized, on the application of the governor of Michigan, to turn over to the State of Michigan, for use as a State park, and for no other purpose, the military reservation and buildings and the lands of the National Park on Mackinac Island, ■Michigan: Provided, that, whenever the State ceases to use the .land for the purpose aforesaid, it shall revert to the United States.”
An act of the legislature of the State of Michigan of May 31, 1895, accepting the park, and establishing a board of commissioners, to be known as the “Mackinac Island State Park Commission,” and providing that the -commission should have the control and management of the Mackinac Island State Park. 1 Comp. Laws, §§ 1257-1260.
In 1865 the legislature incorporated the village of Mackinac, which included within its limits the entire island. In June, 1899, the legislature incorporated the city of Mackinac Island; giving to it the same area .the village had, and conferring the usual powers conferred upon cities.
We are satisfied the State never had any jurisdiction or night over' the land in the park and military reservation -until after the passage of the act of Congress of March 2, 1895, by which the park was turned over to the State. By •the act of Congress of March 2,1895, the secretary of war was authorized to turn over to the State of Michigan these lands for use as a State park, and for no other purpose; and it was provided that, whenever the State ceased to use the land for that purpose, it should revert to the United States. ‘The State has no other right to the land. It became possessed of it for use as a park, with all the powers and rights incident thereto — of control, maintenance, improvement, and regulation — that the government itself would have if the land continued to be a national park. We think the commission did not exceed its authority in requiring this license fee to be paid.
The judgment is reversed, and no new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Moore, J.
December 12, 1896, Charles W. Calkins was appointed receiver of the Masonic Life Association by the circuit court of Kent county, in chancery, and entered upon the discharge of his duties. In September, 1899, he presented his report to the court appointing him, purporting to contain a statement of his receipts and disbursements up to that time. He asked that he be allowed a salary of $125 a month as receiver. One of the circuit judges indorsed upon said report as follows:
“The foregoing report and statement examined and approved, and the receiver’s account as therein stated is allowed as correct, this 14th day of September, 1899.
“Wm. E. Grove,
“ Circuit Judge.”
The receiver, in June, 1900, presented a second report, which showed the receipts and disbursements from the 12th day of September, 1899, up to and including the 12th day of June, 1900. The receiver’s affidavit, annexed to the account, stated that the same was a true account “from the 12th day of September, 1899, up to and ihcluding the 12th day of June, 1900,” and that he had served in the capacity ®f receiver “from September 12, 1899, to June 12, 1900, a period of nine months.” The receiver asked for a salary of $125 per month for five months to February 12, 1900, and “$200 per month for the remaining four months embraced in this report, for services.” The circuit court made the following indorsement:
‘‘ The foregoing report and statement examined and approved, and the receiver’s account as therein stated is allowed as correct, this 20th day of June, 1900, and his compensation is fixed as therein set forth.
“Willis B. Perkins,
“Circuit Judge.”
Thompson & Temple were the receiver’s counsel. Their first bill against the receiver was presented September 14, 1899. That bill was intended “to cover all services to March 1, 1899, rendered said receiver.” It amounted to $1,140. That bill contained an item: “To assisting in preparing and signing 1,850 circular letters, looking after replies from the same, consulting with parties in the office that called in response thereto.” The circuit judge indorsed that bill as follows:
“The foregoing bill allowed at $1,000, dated September 14, 1899. Wm. E. Grove,
“Circuit Judge.”
Thompson & Temple rendered a second bill to the receiver. The second bill was for services “from March 1, 1899, to June 12, 1900.” That bill contained an item on its face for “writing and mailing 1,907 letters to collect assessments after the decision of the Supreme Court.” The circuit judge indorsed this bill as follows: “O: K. Willis B. Perkins, Circuit Judge.” On June 19th it was paid in full by the receiver.
August 17, 1900, the petitioners filed a petition asking for the removal of Mr. Calkins, and an accounting. A hearing was had in open court. October 9, 1900, the court made an order removing Mr. Calkins, and also passing upon his account. ITe reduced the compensation of $200 a month for four months, which he had allowed the receiver by the previous order, to $125 a month for all of the time which he served as a receiver. He also reduced the amount allowed by him in June, 1900, to Thompson & Temple to the sum of $500. He directed the receiver to file a final account. Mr. Taft was appointed as receiver, and Mr. Calkins was directed to turn over all the books and assets to him. Later Mr. Calkins filed a petition, in which he recited what had been done in the proceeding, and stated, among other things: ‘ ‘ And your petitioner is ready and willing to comply with the order of the court, and turn over to his successor all property in his hands, or under his custody or control, belonging to the said Masonic Life Association;” and prayed, among other things, “that on filing the receipt of the new receiver for the balance, if any, of the funds and property in your petitioner’s hands, as determined after the allowance of said account and this petition, your petitioner’s bond as receiver may be canceled, discharged, and surrendered.” The final account was passed upon in February, 1901. March 23, 1901, the petitioners appealed. The receiver also appealed. The receiver claims that, under the evidence, the court should not have removed him. On the part of the petitioners it is urged that not only was the circuit judge justified in removing the receiver, but that the latter did not take his appeal from the order of removal in time, and also that, as he stated in his petition of October he was ready to comply with the order of the court which removed him, he is now estopped from raising the question.
It is not necessary to pass upon the last two contentions stated. In Beach on Receivers (section 782), it is said:
“ Inasmuch as the appointment and removal of a receiver are matters which rest essentially in the discretion of the court, it is a general rule that a court of appeal will not review the questions which have been passed upon by a lower court in relation thereto; and the rule is the same whether the one party or the other — the party of the receiver or the party opposed — attempts to prosecute the appeal. ”
It is not necessary to say, if it clearly appeared that the circuit judge had abused his discretion in removing the receiver, we would not review his action. The circuit judge filed a written opinion, in which he said, among other things:
“A review of the proceedings in this case convinces me that at no time since his appointment has the receiver acted with that diligence and promptitude required of him under the plain terms of the statute and the well-understood rules of law regulating the duties of receivers; but, on the contrary, steps looking towards the performance of his duties have been delayed from time to time, until the expenses of the receivership havse become and are out of all proportion to the services actually rendered.”
Four years had elapsed after the appointment of the' receiver when the judge made the order of removal. We think it clear from the record that, though there was much for the receiver to do, he did not accomplish what he ought and would have accomplished had he exercised the diligence of a prudent man in winding up a business of his own. We are not inclined to say the circuit judge did not properly exercise his discretion in removing the receiver.
It is said that the court, after making an order granting the receiver $200 a month for four months, could not after-wards reduce the amount to $125 a month. The record discloses that this order was made ex parte. No one interested in opposing it had notice that the court proposed to make such an order. The circuit judge, in his later order, states that he was not advised of the facts when he made the ex parte order, and that, had he been, he would not have made the additional allowance. When the final order was made, the receiver was still an officer of the court, and was in the administration of the trust. The compensation allowed was generous for the work done. We do not think the court erred in modifying the earlier order.
The judge charged the receiver with several assessments which had been made and not collected. The persons against whom the assessments were made are dead, and left estates from which the assessments could have been collected if the claims had been properly presented. It is urged on the part of the receiver that he did not know of the death of these persons, and ought not to be charged with the assessments. The office of a receiver is not a perfunctory one. It was his duty to learn why the assessments were not paid, and in these instances, had he been diligent, he might have collected these claims. The court did not err in charging him with them.
We now come to the action of the court in surcharging the receiver with part of the attorney’s fee paid by him to Thompson & Temple after their bill had received the O. K. of the circuit judge. A receiver is an officer of court, and amenable to it for a proper discharge of the trust confided to him. When he is in doubt as to what he ought to do, he should take the advice of the court. In this case, before paying the counsel’s fee, the receiver presented it to the court, which passed upon it favorably before it was paid by the receiver. Under such circumstances, the receiver ought not to be charged back with funds paid out by him, and the order should be modified in that respect.
The remaining question to be considered is, Did the court err in fixing the compensation of the receiver at $125 a month ? It is the claim of petitioners that the receiver is operating under the provisions of chapter 300, 3 Comp. Laws, and that section 10870, reading as follows: “Such receivers shall, in addition to their actual disbursements, be entitled to such commissions as the court shall allow, not exceeding the sum allowed by law to executors and administrators,” — fixes the measure of compensation, and the receiver should receive only 5 per cent, on the first $1,000 collected and accounted for by him, and 2£ per cent, above that amount to $5,000, and for all above $5,000 at 1 per cent;, in addition to a per diem charge of $1 per day. It is not conceded by counsel for the receiver that this proceeding is governed by chapter 300, 3 Comp. Laws, but it is contended that it comes under the organic act providing for the organization of the association (see section 7518, 2 Comp. Laws), and that the court may not only appoint the receiver, but may fix the amount of his compensation.
We do not deem it necessary to decide which of these contentions is the proper one. Section 9438, 3 Comp. Laws, relating to the compensation of executors and administrators, reads as follows:
“ When no such compensation shall be provided by the will, or the executor shall renounce all claim thereto, he shall be allowed commissions upon the amount of personal estate collected and accounted for by him, * * * as follows: For the first thousand dollars, at the rate of five per cent.; for all above that sum, and not exceeding five thousand dollars, at the rate of two and one-half per cent.; and for all above five thousand dollars, at the rate of one per cent.; and the same commissions shall be allowed to administrators; and in all cases such further allowances may be made as the judge of probate shall deem just and reasonable for any extraordinary services, not required of an executor or administrator in the common course of his duty.”
Should it be conceded that the provisions of this section should govern this proceeding, does it follow that the court did not have the right to grant to the receiver the compensation he did ? The work done by the receiver was not according to the common course of the duty of an executor or administrator. The assets available to him consisted almost wholly of the right to levy and collect assessments for the purpose of paying liabilities. This involved dealing with nearly 2,000 people. The record discloses that the members of the association early decided not to pay any assessment, and it became necessary to institute legal proceedings to compel them to do so. It was not until one of those cases was followed by the receiver to this court (Calkins v. Angell, 123 Mich. 77 [81 N. W. 977]), that the receiver was able to collect a large proportion of the assessments. All this called for extraordinary services on the part of the receiver, for which he should be paid. Wisner v. Mobley's Estate, 70 Mich. 271 (38 N. W. 262). No one is in a position to know what allowances should be made so well as the court appointing the receiver. We think the compensation fixed by the court was earned, and should be paid.
The other questions raised have been considered, and will not be discussed. The order will be modified as indicated, and affirmed.
Hooker, C. J., and Grant, J., concurred. Montgomery, J., did not sit. | [
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Moore, J.
This is an action in assumpsit, brought to recover the sum of $331.96, highway labor tax, and $39.61, special highway tax, assessed upon plaintiff’s land, situated in highway district No. 4 of defendant township. The case was tried without a j ury, and a judgment of no cause of action was rendered.
Upon the 25th day of May, 1899, the highway commissioner took action to have a highway labor tax of one-half per cent, assessed upon the taxable property of the township, which was done. The township board also caused to be assessed a money tax. The amount assessed against the land was labor tax, $331.90, money tax, $39.61, which was paid under protest. The plaintiff bases its right to recover on two grounds: First, inasmuch as the question of how much highway tax should be assessed was not submitted to the electors of said township at the annual meeting for the year 1899, and no action was taken by them, the commissioner had no authority to assess the money tax; and, second, because there was enough money on hand, available for use in building new highways and making all improvements necessary and contemplated by the authorities of said township for the year 1899.
Section 4073, 2 Comp. Laws, provides that the commissioner in each township shall render to the board, at the annual meeting thereof in each year, an account stating, among other things, the condition of the roads and bridges, an estimate of the amount of highway labor which, in his judgment, should be assessed for the next ensuing year, the improvements necessary to be made in the highways and bridges during the year, and the amount of money tax that should be levied for that purpose beyond what such estimated highway labor will accomplish. Section 4074 provides that such statement shall be submitted to the electors at the next annual township meeting, and such meeting may determine, by a majority of the electors present and voting: (1) The amount of highway labor to be assessed; (2) the amount of money tax to be assessed, — within the limitations provided in section 4073. Section 4075 provides, in case the 'electors shall neglect or refuse to vote any rate of labor tax, the commissioner may assess not exceeding one-half of 1 per cent., and the board may order to be levied such money tax as such board may deem necessary within the limit provided, if the electors refuse or neglect to do so.
In this case the commissioner submitted no report or estimate to the annual township meeting, and no opportunity was given the township electors to determine how much highway tax they desired assessed for the year 1899. Upon the 25th day of May the commissioner assessed a labor tax of one-half of 1 per cent., basing his action upon the neglect of the electors to do so at the annual meeting, and the township board also voted a money tax.
Upon the trial the counsel for plaintiff stated to the court:
“ I want, to say now that I believe I was mistaken as far as the special highway tax is concerned. I believe the proper proceedings were taken at the annual township meeting in voting that $200 of which this $39 that we paid is a part. As a matter of law, I believe that the electors had a right to vote that tax, provided that, as a matter of fact, it was necessary to perform the labor in that township. If the court finds as a matter of fact that it was necessary to make the improvements and repairs in building the highways contemplated for the ensuing year, then, of course, the electors had a right to vote this special highway tax.”
The trial judge, m order to reach the judgment he gave, must have found it was necessary to raise this fund. It is now urged there is no testimony upon which to base this finding, and, as to the $39.61, the plaintiff should have been allowed to recover. It is true there was a very considerable highway fund already in the treasury when this sum was voted, but the record discloses there were upwards of 30 miles of highways in the road district; that there were a number of high embankments, difficult to keep in place; that there were eight bridges, one of which had to be replaced. The highway commissioner testified that, in his judgment, it was necessary to raise this fund. In view of this situation, we do not think it can be said there was no testimony upon which to base the conclusion of the circuit judge.
Was the remaining portion of the tax valid ? We have already seen the commissioner of highways did not sub mit an account in writing, as required by section 4073. The record does not disclose that any action was taken by the electors at the annual township meeting, or that their attention was called to this matter, as provided in section 4074. These two sections and section 4075 and sections containing like provisions have been construed by this court in Harding v. Bader, 75 Mich. 316 (42 N. W. 942); Newaygo County Manfg. Co. v. Echtinaw, 81 Mich. 416 (45 N. W. 1010); Auditor General v. Railway Co., 116 Mich. 122 (74 N. W. 505); Weston Lumber Co. v. Township of Munising, 123 Mich. 138 (82 N. W. 267),— where it is held the question of raising the tax must be submitted to the electors at the township meeting, and they must have neglected and refused to act, before the commissioner is authorized to act.
Judgment is reversed, and new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
The sole question presented on this application is whether the relator in a mandamus case •may on his „ own motion, and without any suggestion o£ the necessity of framing an issue, or any order of the court in that respect, file a replication, and proceed to a hearing of the case on petition, answer, and replication. We think this question should be answered in the negative. Cir. Ct. Rule 46 c provides that “all m.aterial allegations of the petition in mandamus proceedings, not specifically answered by the respondent, may be taken as admitted by the respondent to be true as alleged.” Subdivision d provides that the proceeding “ shall stand for hearing upon the .return day of the writ, without notice of trial or hearing, unless the court; for cause shown, shall order a postponement of such hearing.” This rule does not contemplate the filing of a replication as matter of right. No provision is made for it. And while the court may frame an issue upon the application of the relator, and when an issue is framed a replication is a very proper pleading, we do not think that a replication is to be regarded as one of the regular pleadings in the case. The return in this case shows that no application for the framing of an issue was made to the court, and the ruling striking the replication from the files is sustained.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. . | [
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] |
Moore, J.
This is an action of ejectment brought by plaintiff to recover possession of certain lands in the county of Hillsdale, State of Michigan. Plaintiff recovered the land, but defendants were given a judgment in the sum of $11,000 for improvements on the property. The defendants claimed title to the land under a sale of said lands for taxes for the year 1893. The court charged the jury that this tax deed was absolutely void, and that defendants had no title to the land. It is claimed that after this tax title was obtained, and before the improvements were made, defendants had notice that the grantor of plaintiff claimed to be the owner of the land. It is the claim of defendants that, before the improvements were made, they submitted their title to reputable attorneys, and were advised it was good, and that they acted in the utmost good faith in building ice-houses upon this property, which are claimed to have cost somewhere between $16,000 and $17,000. The plaintiff has brought the case here by writ of error.
The first important question involves a construction of section 10995, 3 Comp. Laws. It is the claim of counsel that, at the time the Wagner Lake-Ice Company took the lease of these premises, they had knowledge that some interest in the premises was claimed by plaintiff, and although they may have taken counsel as to the validity of their title, and honestly believed their title good, they are not occupants in good faith, within the terms of the statute, and are not entitled to recover compensation for the improvements made; citing cases. This statute received a construction in Miller v. Clark, 56 Mich. 337 (23 N. W. 35), and in the recent case of Petit v. Railroad Co., 119 Mich. 492 (78 N. W. 554, 75 Am. St. Rep. 417). See, also, Griswold v. Bragg, 19 Blatchf. 94 (6 Fed. 342). The trial court charged the jury upon this question in substantial accord with these cases.
The second important question is,'Were the improvements of such a character as to be within the statute ? It is the claim of the plaintiff that this question ought to be answered in the negative;, that as the buildings were put up for the express purpose of enabling the ice company to carry on the ice business, and were not adapted to the needs of the agriculturist, and belonged to the defendant the Wagner Lake-Ice Company, they never became a part of the realty, but are trade fixtures, and not such improvements as the statute contemplates. The principle involved was discussed in Petite. Railroad Co., supra. Under the proofs, the question became one for the jury, under proper instructions from the court, which we think were given.
The other assignments of error relate to the admission of testimony and the charge of the court. While a few sentences of the charge, standing by themselves, might be adversely criticised, when they are read in connection with the rest of the charge we do not think it can be said the jury was misled.
The judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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64
] |
Moore, J.
A reference to the accompanying plat will help to understand the situation.
The defendant is charged in the declaration with having kept and maintained a large reservoir as a part of its waterworks system. It is claimed also that, by reason of the construction, location, and appearance of this reservoir, “ it had a great tendency to and did excite the curiosity of, and was an attractive place for, children to play, many of whom frequented the same as a matter of childish curiosity.” The reservoir is so constructed that the top is between 20 and 25 feet above the streets. The outside of the reservoir is banked up with sufficient slant to be self-supporting ; the inside is of puddled clay and cobblestone, with a cement coating. The slope on the inside is approximately 45 degrees, and the capacity is estimated at 96,000,000 gallons. Around the entire property there was a tight board fence about seven or eight feet high where it is not on the wall. On the northeasterly side of the reservoir the outer base of the reservoir was supported by a stone wall, and at this point the fence was built upon the wall. The wall did' not continue all the way around the reservoir. Near one end of the stone wall the earth had been either dug out or washed out, making a hole under the fence.
On the 3d day of July, 1899, the deceased, Ruby M. Behrend, left her home at about 9 o’clock in the morning, and went away to play. One of her playmates told her and her companion that there were flowers “up there,” and about 11 o’clock Ruby, with a companion 10 years of age, left the traveled portion of the street, went through under the fence, climbed up the steep incline to the top of the reservoir, removed her shoes and stockings, and in attempting to wade in the water was drowned. The plaintiff, as administrator, brought this action against the city, and recovered a judgment of less than $400. The case is brought here by writ of error.
Several questions are discussed by counsel, but, as one of them is controlling, no reference will be made to the others. At the time of the trial of this case the opinion in Ryan v. Towar, 128 Mich. 463 (87 N. W. 644), had not been rendered. The writer of this opinion did not agree with the conclusion reached by a majority of the justices in Ryan v. Towar, but since it was filed it must be regarded as the law in this State in all like cases. Nearly all the cases cited in the able briefs of counsel filed in this case are referred to in one or the other of the two opinions filed in the case of Ryan v. Towar. The opinions are long and carefully considered. The case was decided so recently it is not necessary to repeat here what was said. I.do not think it possible to distinguish this case from that one.
The, judgment is reversed, and no new trial ordered.
Hooker, O. J., Grant and Montgomery, JJ., concurred. | [
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] |
Montgomery, J.
In various cases in the circuit court for the county of Montmorency, wherein the Richardson Lumber Company, the Huron Land Company, Limited, and Thomas S. Sprague filed petitions in the original proceedings in the matter of the petition of the auditor general for the sale of certain lands for the taxes assessed thereon, the circuit judge of Montmorency county made decrees by which the lands were to be released from the lien of the State upon the payment of certain taxes thereon, together with the sum of $1 for each description of land appearing in said petitions, which sum, it was declared, should become a part of the general fund of the State. All other expenses and charges against said lands were set aside. It appears that the Richardson Lumber Company, the Huron Land Company, Limited, and Thomas S. Sprague paid the amounts decreed against the lands, including the sum of $1 for each description, to the county treasurer, who issued receipts therefor. The auditor general, on receiving the report of the county treasurer, claimed that, in addition to the amounts collected, there should have been collected the sum of $1 for each description for each year during which the lands were delinquent, making a total difference of $322, which he charges to the county of Montmorency, and proposes to deduct from the amount owing by the State to the county. This application is for mandamus to require an adjustment between the State and the county upon the basis of the decree.
The respondent contends that the circuit judge had no jurisdiction to make such an order, for the reason that secton 59 of the tax law (Act No. 262, Pub. Acts 1899), it is contended, provides for an expense charge of $1 for each description for each year that the lands are delinquent; and therefore, it is said, as the statute fixes this charge, the circuit judge was without jurisdiction to set it aside, and to permit a redemption from the tax list without the payment of this sum. If it were urged to us that the circuit court erred in his decree, and if this were a proceeding brought to review that action directly, there might be force in this contention. But there is a wide distinction between a judgment of a court which is simply erroneous, and a judgment passed without jurisdiction of the subject-matter. It will not do to say that, because a decree or a judgment is wrong, in so far as it is an error the court proceeded without jurisdiction. Such a rule would leave nothing settled by adjudication, and such is not the law. See Wells, Res Adj. §§ 479, 480. The court having determined this question in a proceeding in which jurisdiction is distinctly conferred upon the court, his decree must be held to conclude all parties to the proceeding; and it follows that the county is not chargeable with the sum uncollected, and which, under the decree, its treasurer had no authority to collect.
The mandamus will issue as prayed.
Hooker, O. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Moore, J.
This is a bill filed for the purpose of foreclosing a land contract made between the complainants and Charles T. Miller. The defendant the Fairview Land Company and the complainants have appealed. The ether defendants are content with the decree as it stands.
The testimony, when considered as a whole, fairly shows that, prior to the making of the contract, a number of .gentlemen were of the opinion that certain real estate was likely to appreciate in value, and agreed among themselves to form a corporation for the purpose of acquiring real estate and selling it again. A number of them contributed sums amounting in the aggregate to $8,500, with the understanding that a corporation was to be formed, -and stock issued to them for the money subscribed by them. Dr. Sherrill was most active in the enterprise. He saw Mr. Miller, who was a real-estate agent, and informed him of the proposed formation of a company, and that, if he could acquire the title to certain real estate, the proposed association would take it from him. Mr. Miller entered into negotiations for the purchase of lands owned by the complainants. On the 15th of February, 1893, a contract under seal was made between Mr. and Mrs. Esper, parties of the first part, and Charles T. Miller, party of the second part, wherein the Espers agreed, for a consideration of upwards of $32,000, to sell to the party of the second part certain real estate. This contract was in the usual form of land contracts. At about the time it was executed, the Espers were informed by Mr. Miller that the parties for whom he was acting were responsible, but they were not informed who they were, and Mr. Miller himself did not know the names of the persons, except Mr. Sherrill and Mr. Rathbone, who were to go into the proposed corporation. At the time the land contract was executed, Mr. Miller paid upon the contract $4,000, which he received from Mr. Sherrill and Mr. Rathbone, less his commission of $649.45, which was paid to him by the Espers, they indorsing upon the land contract a payment of $4,000.
Shortly after the land contract was signed, the Fairview Land Company was duly and properly organized. On the 29th of March, 1893, Mr. Miller assigned the land contract to the Fairview Land Company. A copy of this assignment was afterwards indorsed on the copy of the land contract in the possession of the Espers. Several indorsements were made in 1893. Five indorsements were made in 1894 upon the contract, nine in 1895, and six in 1896, signed by Mathias Esper. These payments were all made by the Fairview Land Company. The other payments called for by the land contract were not made, and this bill was filed. The circuit judge made - a decree dismissing the bill as to all of the defendants except Mr. Miller and the Fairview Land Company, fixing the amount due upon the contract, and providing for a sale of the land, a report upon the amount of the deficiency, if any, and for a personal decree for the deficiency against the Fairview Land Company.
The first question demanding uconsideration is whether a personal decree should have been rendered against the individuals who subscribed for stock and became members of the corporation which was afterwards formed. In Ferris v. Snow, 124 Mich. 559 (83 N. W. 374), it was held that a party not named in a sealed instrument cannot be made liable upon it in the absence of some .act of subsequent ratification. See the authorities cited in the opinion. It is claimed on the part of the complainants that when the contract was assigned to the corporation, and stock was issued to and accepted by the individuals, this was a ratification of the acts of Mr. Miller in buying the land. We cannot agree with that conclusion. Who of the individuals expected personally to pay $32,000 for the land, or as individuals expected to get any title to the land ? Mr. Miller was not buying the land for himself. He did not understand he was buying it for Dr. Sherrill, or for any other individual, but he understood he was buying it for an association which was afterwards to be formed, and which was in fact formed, and to whom he assigned the contract. No individual subscribed any money to buy an individual interest in land, the title to which was to be held by them as individuals, but the subscriptions were made for stock in a corporation afterwards to be formed, which was to issue stock for the money subscribed. No individual ever did get any interest in the land as an individual. The fact that the money which was subscribed for stock was used in making the $4,000 payment did not give the persons who paid in that, money any interest in the land. 3 Comp. Laws, § 8835. We think the circuit judge was right in holding that a personal decree could not be rendered against the individuals.
Was he right in holding that a personal decree could be rendered against the Fairview Land Company ? It is said the pleadings are not such as to warrant such a decree. The bill of complaint set out the understanding of the complainants. In the prayer, among other language used, was the following:
“And that this court will ascertain from the proofs and determine who were the real principals as vendees in said land contract, * * * and that the true principals in said land contract, whoever they may be found to be, shall be decreed by this court to be liable to your orators on said land contract personally for the said purchase moneys remaining due and unpaid on said land contract, and that such land contract be enforced in all respects against the true principal vendees, and against all persons liable thereon, and liable to your orators on account thereof, and for such purchase moneys, and that the persons personally responsible be decreed to make payment to your orators of the amounts remaining unpaid upon said land contract to your orators, * * * and that your orators may have such other relief or further relief as the premises will warrant.”
We think this prayer sufficiently broad. Proctor v. Plumer, 112 Mich. 393 (70 N. W. 1028).
It is urged upon the part of the Fairview Land Company that, as it was not in existence when the contract was made, it cannot be bound by the acts of Mr. Miller. It must be conceded the authorities are not in harmony upon this proposition. It has already appeared that the complainants regarded Mr. Miller as acting for them as well as for his undisclosed principal. They paid to him upwards of $600 in the way of commissions for making the sale. He and they knew he was not acting for himself. He knew he was not acting for individuals, but for a corporation, which was to be called into being later; and; when it had a corporate existence in fact, he assigned the land contract to it, making the transaction, so far as he was concerned, as between himself and the corporation, a completed one. His knowledge was imputable to the complainants. We think there can be no reasonable doubt that the corporation, after it had been formed, recognized that Mr. Miller had been acting for it, and took over such title as he had in the contract, for which money had been paid in by prospective stockholders, to whom stock, for the money paid in, was issued. Mr. Miller paid no money of his own. He never expected to pay any, and it was not expected he would pay any. There was abundant evidence that the corporation ¿undertook to ratify his acts. Hammond v. Hannin, 21 Mich. 374 (4 Am. Rep. 490); Hanchett v. McQueen, 32 Mich. 21. It is certainly not equitable that a company called into being for a definite purpose, for whom property has been acquired by a written contract, can take over that property, by receiving an assignment of the contract and exercising acts of ownership over the property, without performing that part of the contract which is unperformed; and such we do not understand to be the law. We think the decree holding the Eairview Land Company liable under the facts disclosed by the record is sustained by Whitney v. Wyman, 101 U. S. 392; Bell’s Gap R. Co. v. Christy, 79 Pa. St. 54 (21 Am. Rep. 39); Grape Sugar Manfg. Co. v. Small, 40 Md. 395; Van Schaick v. Railroad Co., 38 N. Y. 346; Battelle v. Pavement Co., 37 Minn. 89 (33 N. W. 327); Mesinger v. Saddle Co., 44 App. Div. 26, (60 N. Y. Supp. 431); and St. Johns Manfg. Co. v. Munger, 106 Mich. 90 (64 N. W. 3, 29 L. R. A. 63, 58 Am. St. Rep. 468).
Decree is affirmed, with costs.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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] |
Moore, J.
This statement of facts and the claims of the parties is taken from the brief of counsel for respondent:
The petition asked for a writ of mandamus requiring the Edison Illuminating Company of Detroit to issue to the relator 27 shares of the common capital stock at par, for which he has subscribed and tendered to the company the par value, $25 for each share. The shares so claimed are a part of an increase of the common capital stock of said company voted at a recent stockholders’ meeting, and the amount to which the relator would be entitled as his proportionate share; he being a stockholder of the company. The meeting at which the increase of stock was voted was the regular annual stockholders’ meeting of the Edison Illuminating Company of Detroit, held on the 27th day of January, 1902, in the city of Detroit. The notice of said meeting was in accordance with the by-laws of the corporation, and contained an express statement that a proposal to increase the capital stock of said company from $900,000' par value to $1,000,000 would be submitted to said stockholders for action. Of the 36,000 shares of said company’s stock outstanding, 28,349 shares were represented at the meeting, and the affirmative vote on the resolution to make the increase of stock was 27,849 shares, which is more than two-thirds. The relator’s 140 shares were voted in the negative, and 360 shares did not vote, as the proxy was limited to election of directors.
The action taken at the stockholders’ meeting to which the relator objects was:
“That said new stock be offered to the present stockholders for subscription at the price of $31.35 per share (which is a premium of 35 per cent.), to be paid for on or before March 1, 1903, and that such of said stock as is not subscribed by the present stockholders on or before the 15th day of February, 1903, be sold by the officers to new stockholders, for the best interests of the company. ”
It is conceded relator was entitled to 37 shares of the increase, that he made a lawful tender of the par value of the shares to the company within the time prescribed by the action of the stockholders, and that the tender was refused because it did not comply with the requirements of the stockholders’ action.
The other facts set up by the answer are that on the 37th of January, 1903, the Edison Illuminating Company of Detroit owed the sum of $138,537.78 upon bills payable. This indebtedness represented money borrowed from time to time to pay for new machinery purchased and installed in its plants, in improvements of various kinds upon said plants, and in the extension of the company’s lines, both underground and overhead, in the city of Detroit. Such indebtedness was necessarily incurred to increase the company’s manufacturing facilities, and the extension of its lines, to provide for the natural increase of its business. Such increase of plants and facilities is a part of the capital investment of said company, and required the proposed increase in the company’s capital stock to provide, substantially, for the indebtedness so incurred. The company has no issue of bonds or other outstanding obligations except such temporary loans, but has always provided for extensions of its plant and lines by increasing its capital stock as the growth of its business required.
The sole question in the case is whether a stockholder, under such circumstances, has a right to subscribe for his proportionate part of the increase of the company’s capital stock at par; or, in other words, whether two-thirds, the ■statutory majority, of the capital stock, legally represented •at a meeting duly called for that purpose, can, under the fourth subdivision of section 2 (§ 7038) of chapter 188, 2 Comp. Laws, provide and require that the shares of stock representing the increased capital may only be subscribed for by the present stockholders at a premium above par, not exceeding the market value of the stock. The relator •claims the right to subscribe for his proportionate part at par, and that the action of the stockholders fixing the price of purchase at a premium is an invasion of his rights, and that he is entitled to a writ of mandamus requiring the company to accept his tender, and issue to him 27 shares on his paying par therefor. The repondent’s position is that, under the Michigan statute cited above, the body of stockholders have abundant authority, in voting the increase of the capital stock, to fix a reasonable time and manner in which the stockholders shall exercise their right of subscribing for their proportionate shares, and that so long as all stockholders are treated alike, so that no one secures an advantage over another, they can fix (within reasonable limits, — say, under market value) the price at which the stockholders’ right of subscription shall be exercised. Respondent also claims that a corporation has rights distinct from the rights of the individual stockholders, which should be protected in taking action for increase of capital. When the proper action has been taken under the statute, and the increase of capital is ready for subscription and allotment, it is the property of the corporation, which is to be sold for the purpose of raising money to discharge the indebtedness of the corporation, or to purchase property to be used by the corporation in the conduct of its business and the exercise of its legal functions. The payment of such debt or the purchase of such property is for the common good of the company and all the shareholders, and it is to the advantage of all interested that the stock shall be sold for as near its market value as it may be.
The question involved has not been passed upon by the courts in this State. In Tayl. Priv. Corp. § 569, it is said:
“If the capital stock is increased by the proper authorities, the right to take the additional shares vests in the shareholders pro rata. This right may be waived; but the directors cannot deprive a shareholder of it, nor burden it with conditions unauthorized by the charter or enabling act, — as, for instance, the payment of so much per share for the privilege of subscribing. Accordingly, when a corporation is issuing new stock generally, and refuses to issue to a shareholder his due proportion, he can compel it to do so by a suit in equity; at least so long as there remains stock undisposed of.”
In 2 Thomp. Corp. § 2094, it is said:
“Where the corporation increases its capital stock, or ■declares and issues what is sometimes called a stock dividend, the new stock must be distributed ratably among the subscribers to the old stock, or else sold to create a fund which inures to the common benefit. Each stockholder, it has been held, has a right to the opportunity to •subscribe for and take the new or increased stock in proportion to the old stock held by him; so that a vote at a stockholders’ meeting directing the new stock to be sold, without giving to each stockholder such an opportunity, is void as to any dissenting stockholder. Some observations of the court in support of this conclusion deserve to be quoted. Gilfillan, C. J., said:
“ ‘When the proposition, that a corporation is trustee of the corporate property for the benefit of the stockholders, in proportion to the stock held by them, is admitted (and we find no well-considered case which denies it), it covers as well the power to issue new stock as any other franchise or property which may be of value, held by the corporation. The value of that power, where it has an actual value, is given to it by the property acquired and the business built up with the money paid in by the subsisting stockholders. It happens not infrequently that corporations, instead of distributing their profits in the way of dividends to stockholders, accumulate them till a large surplus is on hand. No one would deny that in such case each stockholder has an interest in the surplus, which the courts will protect. No one would claim that the officers, directors, or majority of the stockholders, without the consent of all, could give away the surplus, or devote it to any other than the general purposes of the corporation. But when new stock is issued, each share of it has an interest in the surplus equal to that pertaining to each share of the original stock; and if the corporation, either through the officers, directors, or a majority of stockholders, may dispose of the new stock to whomsoever it will at whatever price it may fix, then it has the power to diminish the value of each share of old stock by letting in other parties to an equal interest in the surplus, and in the good will or value of the established business.’ Jones v. Morrison, 31 Minn. 140, 152 (16 N. W. 854).”
Section 2097 reads:.
“An early case in Massachusetts [Gray v. Bank, 3 Mass. 364 (3 Am. Dec. 156) ] holds that a stockholder in a bank that is authorized to commence business with one amount of stock, and to increase the amount afterwards, is entitled to subscribe for and hold the additional stock in proportion to his original shares; and the bank is liable to him if its officers, or the corporation, refuse to allow him thus to subscribe therefor; and the measure of damages will be the excess of the market value above the par value of the number of shares to which he was entitled, with interest on such excess.”
Section 2098 is as follows:
“ From this principle it also follows that, where there is a statute permitting corporations to increase their capital stock by increasing the number of their shares, which shares are to be allotted pro rata to the stockholders according to their respective interests, it is not competent for the corporation to charge a bonus to the shareholders who receive the new shares in distribution, and that equity should enjoin the company from refusing to allow a stockholder to receive his allotment at par without paying a bonus.”
See, also, 2 Beach, Priv. Corp. § 473; 2 Clark & M. Priv. Corp. § 408; 1 Cook, Corp. § 286; 1 Mor. Priv. Corp. § 454; Jones v. Morrison, 31 Minn. 140 (16 N. W. 854); Gray v. Bank, 3 Mass. 364 (3 Am. Dec. 156); Cunningham’s Appeal, 108 Pa. St. 546; Dousman v. Smelting Co., 40 Wis. 418; Jones v. Railroad, 67 N. H. 234 (30 Atl. 614, 68 Am. St. Rep. 650); Eidman v. Bowman, 58 Ill. 444 (11 Am. Rep. 90); Dawson v. Insurance Co., 5 Ry. &Corp. Law J. 154; State v. Smith, 48 Vt. 266. It is also said, “Any stockholder may sell his right to subscribe for his proportion of the new stock.” 1 Cook, Corp. (4th Ed.) p. 558; Jones v. Railroad, 67 N. H. 234 (30 Atl. 614, 68 Am. St. Rep. 650); Electric Co. of America v. Edison Electric Illuminating Co., 200 Pa. St. 516 (50 Atl. 164).
It would seem from these authorities that the right to subscribe for any increase of stock at par if he desires to do so, or to sell that right if he- does not desire to exercise it himself, is one of the rights acquired by the stockholder when he becomes a subscriber to the stock. If the business is profitable, the stock may be worth much more than par. If it is, it becomes so because of the investment and use of the money put into the business by the original stockholders, and we can see no hardship done to any one when this fact is recognized. Of course, if the original stockholder does not avail himself of his right, either by exercising it within a reasonable time or giving to some one else the right to do so, the corporation may reap the advantage of his failure to do so. Notwithstanding the zeal of the very able counsel engaged in the case, our attention is not called to an authority which holds that an original stockholder is not entitled to his pro rata share of stock upon tendering its par value. We have been unable to find such an authority.
The judgment of the court below in issuing the writ of mandamus is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). Two questions are presented: (1) Did the action of the council operate as a waiver of the provisions of the statute in regard to the notices required? (2) Was there sufficient evidence of negligence on the part of the defendant to justify the sub-' mission of that question to the jury F
Plaintiff neither filed any notice with the clerk, nor presented any claim to the council of the village in writing. 'The verbal report which, it is urged, was made hy her son, specified no damages, and in no respect complied with the statute. In every case where this court has held that the municipal authorities, have waived the provisions of this statute, there has been a written claim which was defective, or the case has been tried without any such defense being set up, and the attempt was made to raise the question upon a motion for a new trial. In Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444), the question was raised for the first time on the part of the defense on a motion for a new trial. In Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663), an unverified claim was presented and acted upon. The same state of facts existed in Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141). In Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78), the claim was verified by the attorney for the claimant, whose verification was void under the statute. No objection was made. The claim was duly considered and rejected. In Foster v. Village of Bellaire, 127 Mich. 13 (86 N. W. 383), a written claim was presented, hut without itemizing or verification. The opinion does not show what acts were relied upon to constitute a waiver. The question of waiver was left to the jury. We are now asked to carry this doctrine of waiver still further, and hold that where a party appears for the claimant without any authority being shown, — for there is nothing in the record to show that plaintiff ever authorized her son to present this claim to the council, — and states that an injured party presents a claim, and wants to know what the village is going to do with regard to it, and the matter is then referred, not to the usual committee for the consideration of claims, but to another committee, which does not' even meet, and makes no report, these wise provisions of the statute have been waived. If this be the case, the statute is of little worth.
Everybody is presumed to know the law- If this plaintiff authorized her son to appear before the council, she probably understood that some notice was necessary. The object of this law is not only to notify the village authorities, so that they may at once examine into the case, the nature of the injuries, and the justice of the claim, but it •is also in the interest of the public and the taxpayers, so that they may know what claims are made against the corporation. Another evident purpose of the statute is to promptly put claimants upon record as to the manner of the accident, the character of the injury, the defect, as well as time and place, and thus avoid these matters resting in parol until the day of trial. Every purpose of the statute is annulled if the ruling of the court below prevails. The committee did not meet, and made no report. Two of them met, and one of them notified the son that his mother should have filed a claim in writing. Whether this was before or after the expiration of 60 days is not entirely clear. The testimony of the son is such that a jury might find upon this point either way. We think there was no waiver of the statute, and that the court should have directed a verdict for the defendant. It follows that the judgment must be reversed, and new trial ordered.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Grant, J.
(after stating the facts). 1. The sale was made pursuant to the decree of this court, which was definite as to dates and amounts. The items and the amount of the taxes were specifically stated and entered in the tax record, which was held valid. All that remained for the officer to do in making the sale was to add interest upon the “Aggregate,” which appeared under the heading “13.” The order of the circuit court is a virtual annulment of the decree of this court. The objection made against the sale is purely technical, and has no merit. The circuit court should have issued the writ of assistance. Morgan v. Tweddle, 119 Mich. 350 (78 N. W. 121), and First Baptist Church of Bay City v. Roberts, 130 Mich. 704 (79 N. W. 910), do not apply. Those cases involve that provision of section 66 of the general tax law (1 Comp. Laws, § 3889) which requires the register of the circuit court to enter opposite each parcel of land, under the heading ‘ ‘Amount Decreed against Lands,” the total amount of the taxes held 'to be valid. That provision does not apply to sales under decrees in this court.
3. It is urged that the order of the court in denying the writ of assistance and holding the sale void is reviewable only upon appeal. That may be the rule as between the relator and the original owner of the land, who were the sole parties to the writ of. assistance, but it does not apply to the auditor general. He was not made a party to it, and is entitled to his day in court, which he did not have until the relator commenced these proceedings. The relator was the only one adversely affected by the order denying the writ. He alone had the power to appeal, but chose to rest content with the order. If he desired to bind the auditor general by that proceeding, he should have made him a party.
The writ is denied, with costs.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Grant, J.
(after stating the facts). Plaintiff claims that this private road has been converted into a public highway. She bases her claim solely upon the statute above cited, and insists that user alone by those having occasion to travel over it is sufficient to convert it into a public highway. The question, therefore, is, Under what circumstances does a private road become a public highway by user, as provided by the statute ? This road was originally built for private gain, over private grounds, and to a private dock and ferry. The record is absolutely barren of any testimony tending to show that the original owners of the land and the builders of this road intended to make it a public highway. At what period and by what acts was its private character changed into a public one ? It is true that for nearly 35 years every one who had occasion to pass that way walked or drove over it without objection from the owners of the land. Not only that, but those who built it and their successors invited every member of the public to use it, for every member of the public paid them for the use of the dock and ferry at its terminus. It is also true that, for the same length of time, the township authorities took no action, either in writing or by act, to indicate that the township ever intended to establish or accept this road as a highway, or that they considered the township liable in any way for its condition, or that they were under any obligation to keep it in repair. Its use by the public has been no other •or different during the past 30 years than it was the first year after its construction. There has been no change in the character of the travel. The relations between the owners and the public have never changed. Neither has done anything to indicate to the other that they understood that its original character had been changed. The learned counsel for plaintiff seem to be of the opinion that, when one opens a private road, it becomes his duty to put up some notice to show that it is not a public, but a private, way. They say in their brief:
“The record does not show that the owners of the land over which the road passed ever did a thing to show that they considered it other than a public highway. No one who desired to use it was ever turned back, or his right to use it questioned. • It was used as uninterruptedly by the public as Woodward avenue, in Detroit.”
It would certainly be a strange rule which would require the original constructors of this road to turn people back, or question the right of any traveler to use it, when the traveler was invited to use it, and its use required the payment of toll at the dock or ferry at its terminus. The above statement made by counsel is undoubtedly true, for, the greater the travel, the more money for the owners of the dock and ferry. A private way is just as much open for use by those who have occasion to use it as is a public way. If Woodward avenue, in Detroit, which extends to the water line of the river, and was so established originally, had been laid out and constructed to within only 200 feet of the river, and the owner of the land between the foot of the street and the river had opened it for his own dockage and ferry purposes, had paved it, kept it in repair, and had not only permitted but invited the public to pass over it for ferriage to Windsor, Belle Isle Park, and other places upon the river, would such use for 10 or 100 years make it a public highway, take exceedingly valuable property from the owner for a public use, and impose heavy burdens upon the city of Detroit for neglect to keep it in repair ? If this be so, then every owner of land along the river front in the city of Detroit and elsewhere, who builds a private dock or establishes a ferry, and opens a road from the public highway to such dock or ferry, loses the title to his land by such use. No case cited maintains such a doctrine. The defendant township had constructed and maintained the River road and the Sodus road for the public use. There is nothing to indicate that its public authorities ever intended to adopt this road along the side of this steep bank as a part of its system of highways.
A farmer may open a private road from one public high way to another across his farm, which will accommodate not only himself, but all who choose to travel that way. His permission to the general public to travel that way is not an act hostile to his title, or to his right to close the road at any time. So a manufacturer may establish his plant in the center of his lands, and open a road to the public highway upon either side, and permit the public to use it, and merchants and peddlers to travel it, carrying their goods for sale to the houses^wned by him and occupied by his employés and tenants. But such use is permissive, and gives the public no permanent rights in it as a highway. So a mining corporation, as is often the case, constructs roads from the public highways in, over, and around its mine, built and kept in repair by the company, and permits the public the free use of them. But this does not make them public highways within the meaning of the statute. Such permissive or invited use is not that use contemplated by the statute which will convert a private road into a public highway. The use required by the statute is one accompanied by some act on the part of the township authorities open, notorious, and hostile to the private ownership; some act which gives the original owner notice that his title is denied. Alton v. Meeuwenberg, 108 Mich. 629 (66 N. W. 571); Diamond Match Co. v. Village of Ontonagon, 72 Mich. 249 (40 N. W. 448). Mr. Elliott says:
* ‘ It must appear that the owner fully consented to the change, or there must be some element of estoppel to deprive him of his rights as the owner of the fee. Where a way is laid out and used as a private way, the mere fact that the public also makes use of it without objection from the owner will not make it a public way.” Elliott, Roads & S. § 5.
This doctrine applies with special force to those roads built in a new country, and for such purposes as was the road in question. The mere use, however long, is not sufficient to effect a change. District of Columbia v. Robinson, 180 U. S. 92 (21 Sup. Ct. 283); Lewis v. City of Lincoln, 55 Neb. 3 (75 N. W. 155); Speir v. Town of New Utrecht, 121 N. Y. 429 (24 N. E. 692); Lewis v. Railroad Co., 123 N. Y. 502 (26 N. E. 357); Downend v. Kansas City, 156 Mo. 60 (56 S. W. 902, 51 L. R. A. 170); Stewart v. Frink, 94 N. C. 487 (55 Am. Rep. 619);. Root v. Com., 98 Pa. St. 170 (42 Am. Rep. 614).
In Speir v. Town of New Utrecht it is said:
‘ ‘ The mere fact that a portion of the public travel over a road for 20 years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be' kept in repair or taken in charge and adopted by the public authorities. * * * A private way, opened by the owners of the land through which it passes for their own uses, does not become a public highway merely because the public are also permitted for many years to travel over it.”
In Stewart v. Frink it is said:
“It would be unjust, as well as ungracious, to take advantage of his [the landowner’s] generous permission to use his land for public convenience, and the law will not allow this to be done.”
This statute was not passed with the view to convert private roads into public ways. It was designed to remedy defects in establishing and recording highways. Green v. Belitz, 34 Mich. 512.
Among the cases cited by counsel for plaintiff as conclusive of their position is Ellsworth v. City of Grand Rapids, 27 Mich. 250. That case well illustrates the purpose of this statute and its necessity. The road there in dispute was originally laid out by the commissioner of highways, but there was a mistake in the survey or in recording it. It formed one of the principal thoroughfares in and out of the city of Grand Rapids. Immediately after it was laid out, it was worked by the city authorities, and continued to be worked and maintained solely by them. The language relied upon in that case has no' application to a case like the one now before us. In all the cases cited, the municipal authorities had taken some action hostile to the claim of the landowner that it was a private road, and by failing to assert his rights he was estopped after 10 years from setting them up.
The action of the board of supervisors in establishing a ferry has no significance. It does not even tend to show that the supervisors considered the road a public one. But, even if they did, they could not bind the township. The river was navigable, and, under the statute, the board of supervisors had control over bridges and ferries across it, and, under the police power, were authorized to license private ferries and establish requirements for their management.
The judgment is reversed, and a new trial ordered.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Hooker, C. J.
At its last session the legislature passed an act under the title “An act to prevent deception in the manufacture and sale of imitation butter.” Pub. Acts 1901, Act No. 22. Section 1 of said act provides that:
“No person, by himself or his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell, any article, product, or compound made wholly or in part out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk, or cream from the same, which shall be in imitation of yellow butter produced from pure unadulterated milk, or cream of the same: Provided, that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.”
Section 2 prescribes a penalty for the violation of the act.
The defendant was a grocer in Emmet county, and is shown to have sold a package of oleomargarine, which by an analysis was proven to have contained artificial coloring matter, and that said oleomargarine was not made wholly from unadulterated milk, or cream from the same, and that it was made in imitation of yellow butter produced from unadulterated milk, or cream from the same. The court was asked to direct a verdict of not guilty upon the grounds:
1. That the object of the act was not expressed in the title, as required by section 20 of article 4 of the Constitution of this State.
2. That the act violates the fourteenth amendment to the Constitution of the United States, and article 6, § 32, of the Constitution of this State.
3. That it was not within the police power of the State.
The evidence conclusively shows that no deception was used in selling the oleomargarine, and there is nothing to indicate that there was any harmful ingredient therein, but that, on the contrary, there was not such ingredient. The defendant was convicted, and the case is here on exceptions before sentence.
It is contended that the title to the act indicates that the act was designed to prevent deception in the manufacture and sale of imitation butter, while the act attempts to go further, and prevent all.sales of such colored oleomargarine. If oleomargarine colored yellow closely resembles yellow butter made from milk or cream, it cannot reasonably be said not to resemble or imitate yellow butter. Butter is a well-known commodity. From time immemorial it has had but one origin, viz., from the churning of milk or cream. Whatever may be said of the possibility of making a product from other compounds than milk or cream that shall closely resemble or be chemically identical with butter, the world has but one understanding of what is meant by the word “butter,” and we must assume that such is the sense in which our legislature used the term. 1 Comp. Laws, § 50, subd. 1. A fair inference from this statute is that thei legislature undertook to prevent deception by preventing the sale of any yellow oleomargarine, and it undertook to accomplish this by the most effective means, viz., by prohibiting the coloring of oleomargarine yellow, thereby avoiding the embarrassment which would otherwise arise from the necessity of proving in each case that deceit was used in selling it as and for butter. We think this is fairly within the title, whatever must be said of the other points raised. We are referred to the case of Northwestern Manfg. Co. v. Wayne Circuit Judge, 58 Mich. 381 (25 N. W. 372, 55 Am. Rep. 693), as conclusive upon this question, in which case it is said that “ all that could be done under such a title would be to prohibit and prevent the sale of such articles under false pretenses.”' We are of the opinion that this language is too restrictive, and that it is at variance with the settled doctrine in this State that gny provision naturally calculated to accomplish the object expressed in the title may be included in the act. See Soukup v. Van Dyke, 109 Mich. 681 (67 N. W. 911); People v. Worden Grocer Co., 118 Mich. 607 (77 N. W. 315). The case cited wás rightly disposed of upon another ground, and it is possible that the language above quoted should be considered a dictum. Moreover, the cases are distinguishable, for, whereas that act attempted to prevent all sales of imitation butter, and was therefore, perhaps, inconsistent with the title, which apparently contemplated lawful sales, the statute under consideration in the present case does not prohibit sales of oleomargarine which is not tainted with the prohibited ingredients.
It is unnecessary to discuss the other points at length, for the reason that the uniform trend of judicial opinion is that such laws are valid. State v. Myers, 42 W. Va. 825 (26 S. E. 539, 35 L. R. A. 844, 57 Am. St. Rep. 887); State v. Marshall, 64 N. H. 549 (15 Atl. 210, 1 L. R. A. 51); Powell v. Pennsylvania, 127 U. S. 678 (8 Sup. Ct. 992); People v. Arensberg, 105 N. Y. 123 (11 N. E. 277, 59 Am. Rep. 483); Butler v. Chambers, 36 Minn. 69 (30 N. W. 308, 1 Am. St. Rep. 638); People v. Worden Grocer Co., 118 Mich. 604 (77 N. W. 315); State v. Crescent Creamery Co., 83 Minn. 284 (86 N. W. 107, 54 L. R. A. 466); State v. Ball, 70 N. H. 40 (46 Atl. 50); Wright v. State, 88 Md. 436 (41 Atl. 795); Com. v. Vandyke, 13 Pa. Sup. Ct. Rep. 484; Com. v. McCann, 14 Pa. Sup. Ct. Rep. 221; Armour Packing Co. v. Snyder, 84 Fed. 136; Capital City Dairy Co. v. Ohio, 183 U. S. 238 (22 Sup. Ct. 120). We are of the opinion that the legislature had the power to pass this law, and its wisdom or policy is not for our consideration.
The conviction is affirmed, and the court directed to sentence the defendant.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This is an appeal from a decree m chancery. Ira Carley, complainant, is the owner of 40 acres of land. Llewellyn A. Jennings, defendant, is the owner of the 40 acres lying directly south of the Carley 40, and separated from it by a highway running east and west. The contention of the complainant is that there has always been a stream of water entering his 40 from the swamp on the east near the north end, and' running south and west and across the south line of said 40, flowing onto and across the land of Jennings; that Jennings dammed this stream, causing the water to back up on the land of Carley, causing him damage. The defendant claims that no such natural stream ever existed, but that the lowest part of the swamp on the two 40’s was that part now crossed by the highway, and that the water always accumulated there at its greatest depth, and flowed upon his land only in small quantities, until the ditches which were dug concentrated the water at that place; and that only in time of flood did the water overflow his end of the swamp, which was higher than the road. The complainant asked to have the defendant enjoined from setting the water back upon his land. The case was heard in open court. The circuit judge filed written findings, which, after stating the pleadings, are in part as follows:
“ After listening to the evidence and the arguments of counsel, I viewed the premises in company with the parties and their solicitors, in order that I might more clearly appreciate and understand the evidence. The principal controversy upon the hearing was whether there was originally and by nature a brook or stream across the said lands of the parties, respectively. A highway has existed for more than 20 years, running east and west upon the section line between the complainant’s said land and that of the defendant. More than 20 years ago a corduroy road was built on the low land between these two 40’s, and a culvert was placed there, substantially where the culvert stands today. From the point on complain ant’s said land where his present ditch exists, and near the northeast corner thereof, to where the same empties into the highway on the south line, at the highway and above the culvert, there is a gradual fall; but the decline is slight, and probably does not exceed one foot. By a clear preponderance of the affirmative evidence it was shown, and I find, there was a natural stream or place where the water flowed down over complainant’s said land, and across the road at and under the culvert, and onto defendant’s said land, before either of said parcels of land was cleared or improved. The water in this stream or brook did not run at all seasons of the year. It was what was termed by some of the witnesses a ‘swamp’ stream or brook. Its banks were, I am satisfied, open and defined in places, and in other places the stream ran under the roots and fallen timber, coming out again where the ground was open.' The same condition exists now above where the water enters the complainant’s land. Both parcels of land have been cleared, and from that of complainant the stumps and roots have been taken. Since clearing his said land, the complainant has dug a ditch uniform in size and depth along the course of what was the original stream. This is evident from the appearance of the surface. There is no evidence that there were sinkholes or low places of any considerable size upon complainant’s said land, but at the south line, where the ditch exists, it is somewhat depressed, and it is the lowest point of land on said lot. I do not think that the complainant, in the clearing of his land and straightening the stream, has increased the flow of water across his premises. In fact, I think the flow is lessened by the clearing up of the ground, except in case of heavy rains or freshets. It is undisputed that the land of the defendant in question lies below that of the complainant, and that the water, in its natural course, passes from the north to the south, and goes onto defendant’s land, and naturally can go nowhere else. Defendant denies that there was any natural watercourse here, but it appears from his own testimony that, after the stones and obstructions were placed in the ditch •on his premises, the result was to set back the water, and raise it upon the lower part of complainant’s lands. And. he admits that, in times of high water, the flow was south from the complainant’s high land onto that now owned by him.- It is the settled law of this State that the natural flowage of water from the upper estate is a natural servitude which the owner of the lower estate must bear.
“ The natural condition south of the culvert was a matter that was much in controversy on the hearing. The complainant claimed that, upon the line of the present ditch, there was a natural bed or stream, while the defendant contended that no natural channel existed south of the culvert, but that complainant dug the ditch there. The culvert opening having existed there for more than 20 years, it is natural to suppose that, at least in time of high water, there would be some escape of water below. Barney Corcoran testified that in 1894 (being the year of the labor riots in Chicago) he was employed by complainant to do something below the culvert on' the south side. * * * I think that the evidence of this witness as to the existence of a channel below the culvert down .to the fence and onto the defendant’s land was corroborated by the witnesses Burton and Hanley, who both testified to clearing out the stream below the culvert before Corcoran worked there in 1894, and that there was a natural waterway there. So I think, from the testimony of the above-named, and of many other, witnesses, it was shown by a clear preponderance of the evidence that the channel existed substantially as it is now from the culvert down onto defendant’s land, about 15 feet from the fence, for many years.
“ It appears that refuse stuff from a mill had been hauled onto the corduroy bridge, and from time to time in high water it had been carried below, and had filled up the old channel on Jennings’ land, and that Corcoran, at a point from 12 to 20 feet below the fence, left the old channel, and dug a new ditch. Since 1894 the stumps have been pulled in that vicinity, and the former condition of the surface has been much changed. The old channel on defendant’s land having been filled with refuse matter, Corcoran dug a new ditch from about 15 feet south of the fence some distance, and until he found what would seem to be the bed of the stream. I do not think that complainant had any right to change the location of this natural stream, even though the channel had been filled by the action of the natural causes. Complainant has the right to have the water pass away from his land and onto and over defendant’s land in its natural way, but he had no right to dig an artificial channel, even near the old one. Defendant claims by his pleadings and testimony that it is a damage to him to have the water flow down this ditch dug in 1894, and wants it (the water) to remain on the land. I am wholly unable to appreciate the’ claimed benefit. But so long as he does not disturb or interfere with the natural flow of the water that comes down from complainant’s land, I do not think that the complainant can justly complain.
“ It is undisputed that, before the filing of the bill of complaint, the defendant caused to be placed in the channel just-below the highway fence, and on his premises, a quantity of stpne, damming the flow of water, and causing it to be set back upon the lower part of complainant’s land. I find that this obstruction was placed in the old channel, which was cleared out by Corcoran in 1894. While complainant is entitled to the natural flow of the water below this old channel, I think that defendant has a -right to fill up the new ditch, dug in 1894, where it left the old channel, so long as he does not raise the water in the old channel, or interfere with the natural flow below. From the evidence I find that the old channel was left and departed from by Corcoran, in 1894, at a point in the present stream Í5 feet below the highway line and fence. After thé bill was filed, complainant removed most of the stone from this old channel, and at the time of the hearing that part of the stream was practically unobstructed. The water which had been set back upon complainant’s premises by the said obstruction escaped downstream, when such obstruction was removed, in a large measure; but the land of complainant has been somewhat affected by the water standing on it in the early part of May. The season has been wet, and the present condition of complainant’s land near his south line at the ditch, in fact, is owing to this fact. It is difficult to estimate the damage caused to complainant by the conduct of the defendant. Though the amount of damage may not easily be estimated, and in fact in a given season may be small, yet I think that the complainant is entitled to enjoy the natural flow of the water in the old channel on defendant’s land, and the defendant should not be allowed to in any way dam or set back the water therein, and should not interfere with the natural escape of the water below the old channel. In my judgment, the law of the case is set forth by our Supreme Court in the cases of Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831), and Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367):”
Some photographs are attached to the supplemental brief of the solicitor for complainant, which were not pre sented in the court below. They will not be considered here.
Counsel for defendant insist the learned judge reached wrong conclusions in relation to the facts, and that under the law the defendant had a right to do all that he has done and all that he proposes to do. The trial court had the great advantage which comes from seeing and hearing the witnesses. He also viewed the premises. It would not be practicably or profitable to attempt to state in this opinion all that is contained in the record. Leaving out of consideration the advantage of seeing the witnesses and the premises, of which we have already spoken, we think the record, as it appears here, fully justifies the decree which was made in the court below.
The decree is affirmed, with costs.
Hooker, C. J., Grant and Montgomery, JJ., concurred. . | [
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Grant, J.
(after stating the facts). 1. The first assignment of error relates to the ruling of the court in admitting testimony. No objection was made to the question, and it therefore cannot be considered in the appellate court.
2. Some time after defendant had sold the plaintiffs’ lumber, they had an interview, in which defendant testified that he informed plaintiffs that he could make arrangements to go on and complete the contract, and that he was ready to do so. His counsel then asked him what it would have cost to fill the contract at that time and deliver the lumber. The objection to its immateriality was sustained by the court. The ruling was correct. Plaintiffs had not agreed to take any other lumber than that which had been bought by them, and had been marked “Sold” to them. By this contract defendant agreed to ship this lumber to the plaintiffs. He sold it to other parties instead. Plaintiffs’ right of action was complete, and it is no defense to say that the defendant subsequently offered to deliver other lumber.
3. Defendant offered testimony to show that such lumber had depreciated in value between the dates of the contract and the institution of suit. The testimony was excluded as immaterial. The determination of this question depends upon the measure of damages applicable to the case. No fraud is alleged in the making of the contract or in its execution until this lumber had been set •apart by the defendant as the property of the plaintiffs. Both parties agree that the title had passed and was in the plaintiffs. The fraud complained of is that defendant disposed of and delivered the lumber to other parties. Plaintiffs claim the right to recover the difference between the moneys advanced and the purchase price of the lumber received. The defendant contends that, inasmuch as the title had passed, the measure of damages is the value of the lumber when so taken and appropriated by the defendant.
The declaration complains of defendant “in a plea of trespass on the case upon promises,” and at the close claims damages “arising out of such express contract for the fraud so committed by the defendant against plaintiffs.” The declaration is not in form in trover. It, however, states facts which show a conversion. Plaintiffs had two remedies open to them, viz.: To sue in trover for conversion, or to waive the tort and bring assumpsit. Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652). The facts set forth in the declaration are applicable either to an action of trover or to an action for breach of contract. Defendant had committed a breach of contract in failing to ship the lumber as agreed. If the declaration had been in trover, or an action on the case for fraud, the measure of damages in each case would have been the value of the lumber at the time of its appropriation by the defendant. If it was worth more than the contract price at the time of its conversion, that worth is the measure of damages. , If it was worth less, that worth is the measure. If it was worth the same, then the purchase price becomes the measure. If the declaration is based upon the contract, for a breach thereof, which we think it is, it is difficult to see why the measure of damages is not the same. In either form of action they have lost their property. It has been appropriated by. the defendant. Their loss is not what they paid for it, but its-worth when wrongfully disposed of by the defendant. We are of the opinion that the measure of damages is the value of the lumber at the time defendant appropriated it by sale and delivery to other parties.
Other errors are assigned, but it is unnecessary to discuss them.
Judgment reversed, and new trial ordered.
Hooker, O. J., Moore and Montgomery, JJ., concurred. | [
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Moore, J.
Mr. Ezekiel D. Webb died July 15, 1898. William Peck was appointed executor of his estate. In September, 1898, the executor filed an inventory showing property belonging to the estate of the face value of $8,642.95. For some reason, no appraisal of this property was made. The executor filed an annual account, showing a balance in his hands of $7,122.12. No contest was made in the probate court, and the account was allowed. Some of the heirs at law, who claim to have had no notice of the hearing in probate court, appealed the case to the circuit court, where it was tried by the circuit judge, who disallowed some items of the account. Complaint is made of the action of the circuit judge, stated as follows by counsel: '
“1. An item of disbursements which appears in the account, and which reads: ‘Advancements made to N. H. Webb, to apply on legacies to him, and made at different times, $567.34.’ This item was wholly disallowed by the circuit court.
“2. An item of disbursements which appears in the account, and which reads: ‘ My collection fees, per statute, $226.42.’ This item was allowed at $97.12.
“3. Another item of disbursements, which reads: ‘ For additional compensation for services rendered, $200.’ This was wholly disallowed.
“Costs were awarded by the circuit court against the executor personally, and, while this may be discretionary, the executor contends that, if so, it was an abuse of discretion, which did him, personally, a very great wrong.”
The circuit judge made findings of fact and law, which, so far as they are important, are as follows:
“The said William Peck and Nathan H. Webb have had mutual, personal dealings, which in no wise pertained to the matters of said estate. Nathan H. Webb made the said Wiilliam Peck his banker, and deposited with him various sums of money. Mr. Webb also loaned to Mr. Peck, individually, various sums of money. Mr. Webb also withdrew from the custody of Mr. Peck different sums of money, and purchased from the Montague Hardware Company, of which Mr. Peck was manager, various articles of merchandise. The only account of these dealings kept by Mr. Peck was upon the books of the Montague Hardware Company. The account of these private dealings between Mr. Peck and Mr. Webb has not been liquidated, and there is a controversy between these parties concerning the same. The items making up said account do not pertain in any way to the administration of said estate, but relate solely to private dealings between Mr. Webb and Mr. Peck and the Montague Hardware Company.
“Up to the time of rendering his said first annual account, viz., August 25, 1899, said William Peck, as such 9xecutor, had collected the sum of $2,884.95 belonging to said estate, and no more.
“Said William Peck, as such executor, has rendered no extraordinary services for which he should receive extra compensation. * * *
“The item of disbursements contained in said account, ‘August 25, 1899, advancements made to N. H. Webb, to apply on legacies to him, -and made at different times, $567.34,’ should be, and hereby is, disallowed.
“ The executor is entitled to commissions in accordance with the statute upon the sum of $2,884.95, which has been collected and accounted for by him. Said commissions amount to the sum of $97.12. Said executor should be, and he is hereby, allowed as such commissions said Sum of $97.12; and the item of disbursements contained in said account, ‘August 25, 1899, my collection fees, per statute, $226.42,’ should be, and the same is hereby, disallowed.
“ The item of disbursements contained in said account, ‘August 25, 1899, for additional compensation for services rendered, $200,’ should be, and the same is hereby, disallowed.
“The contestant, Nathan H. Webb, should be, and he is hereby, awarded the costs of this suit against the said William Peck individually, and not against William Peck as executor, nor against said estate. Said costs shall be taxed, and execution may issue therefor against the individual property of said William Peck.”
As to the first item: Did Mr. Peck make advancements to Mr. Webb as legatee? The testimony was as conflicting as it could well be. Mr. Peck testified he did. Mr. Webb testified he did not. Mr. Peck claimed Mr. Webb gave him a receipt and voucher, which was not produced upon the trial, because Mr. Peck claimed it had been lost. Mr. Webb denied he had ever given such a paper, and said that, if Mr. Peck ever had a paper of that purport, it was a forgery. The judge saw the witnesses. He found that the dealings between the parties did not in any way pertain to the administration of the estate. In Gee v. Hasbrouck, 128 Mich. 509 (87 N. W. 621), the court said:
“Upon the argument it was urged by the appellants’ counsel that we should review the merits as contained in the findings of fact. On the other hand, appellees insist that the findings must be treated as final upon all questions of fact where there is dispute in the testimony. We are of the opinion that the latter is the correct practice, and must treat the findings of fact as conclusive where supported by testimony.”
There was an abundance of testimony upon which to base the conclusion of the circuit judge, and it will not be disturbed.
As to the second item: It is claimed the executor is now entitled to the statutory commission upon the estate as inventoried, even though many of the notes are not yet collected, and only a small portion of the estate has been distributed. The statute in controversy is section 9438, 3 Comp. Laws. It provides for commissions to the executor “ upon the amount of personal estate collected and accounted for by him.” The circuit judge allowed the commission for the full amount collected at the time the annual account was filed. There will be time enough to make further allowances if the executor becomes entitled to them when his further or final account is presented.
As to the item of $200 for additional compensation: The statute provides this may be allowed “for any extraordinary services, not required of an executor or administrator in the common course of his duty.” A charge of a lump sum of $200 was made for these services. No effort was made to itemize the account. The circuit judge found no extraordinary services had been rendered. There was testimony upon which to base this finding, and what we have before said disposes of this item.
The remaining question relates to the action of the circuit judge in granting costs against the executor personally. This is a matter of discretion, which we are not inclined to review unless we are satisfied the discretion has been abused. An examination of the record does not so satisfy us, but, on the contrary, the record fully justifies the action of the circuit judge.
The judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Grant, J.
(after stating the facts). It appears both from the petition for writ of mandamus and in the answer that at the time the petition was filed no school had been taught in the new district. The petition says that the school officers have contracted with a teacher to conduct the Deckerville high school for the winter and spring terms. The petition was filed January 13, 1902. The apportionment of the school moneys in November, 1901, was based upon the reports of 1900. The interest upon this primary school fund is computed to the 1st day of April in each year by the auditor general. It is after that apportioned by the superintendent of public instruction to the various school districts, based upon the number of children in each school district for the previous year, and is apportioned semi-annually between the 1st and 10th days of May and the 1st and 10th days of November each year.
We think the court was wrong in holding that, under the terms of the act, the relator had a right to a division of the primary school moneys apportioned to the respondent. The moneys to be afterwards ascertained and apportioned were not included within the terms of the act. The answer, which must be taken as true, alleges that no teachers have been employed by the relator since its organization; that the respondent has maintained a school, and that it has been open and free to the whole of the original district; and that a large number of pupils residing within the territory of that district have attended the respondent’s school, and are now in attendance, without charge for tuition. Further, by section 5, art. 13, of the Constitution, no school district which neglects to maintain a school for at least three months in each year shall be entitled for the ensuing year to its proportion of the primary school fund. Although the relator had been organized for eight months prior to the time of filing its petition, and more than six months prior to the apportionment to the respondent, yet it had no school. It could not, under this provision, receive the money directly from the 'State.
Judgment reversed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This action was commenced by summons •dated- September 30, 1901, and returnable December 1, 1901. Service was made on the defendant on the 1st’day •of November. The suit was brought upon a promissory note dated September • 22, 1894, due on or before October 1, 1895, upon which note no payments had been made. The plea of the general issue was interposed, with notice that the note was procured without consideration. Notice-of the statute of limitations was also given. The only defense the court allowed to go to the jury was the running of the statute of limitations.
The important question in the case is, Did the court err in submitting to the jury the question of whether the suit was commenced before the note was barred by the statute •of limitations ? On the part of the plaintiff it is insisted that what constitutes the commencement of a suit is a question of law, and that whether the facts of a case showed a suit properly commenced would likewise be a question of law. If there were no dispute about the facts, this contention would doubtless be true. It is conceded by counsel for the defendant, and the court so instructed the jury, that if the summons was delivered to the sheriff, for the purpose of having it served, on or before October 5, 1901, the statute of limitations would not run; but the question of when the summons was placed in the hands of the sheriff is in dispute. It is the claim of the plaintiff that it was given to him for service October 4th, while defendant claims the summons was not issued at all until after October 5th, and that it was not given to the sheriff until about October 15th. The local attorney for the plaintiff testified it was given to the sheriff October 4th. He does not testify when it was issued, but admits that, upon the date it was issued, the clerk of the court, at his request, dated it back. The trial judge allowed testimony to be given of the circumstances surrounding the issuance and service of this summons. The clerk and the sheriff were both sworn as witnesses. Neither of them is at all clear in his recollection as to when the summons was issued, nor when it was given to the sheriff. The trial court submitted the question, under proper instructions, to the jury, who rendered a verdict in favor of defendant. There was an abundance of testimony upon which to base this verdict.
The other questions have been considered, but we do-not deem it necessary to discuss them.
The judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Hooker, C. J.
A former review of this cause is reported in 124 Mich. 263 (82 N. W. 881). Upon the last trial it was submitted to the jury upon two grounds of negligence, viz.: First, that of the fireman; second, a want of reasonable inspection of the boiler. The cause is here upon over 100 assignments of error. We have patiently examined each of them, and feel justified in saying, as to some of them, that, if counsel had as carefully examined the record, they could not. have failed to see that they were groundless, and many of them are frivolous. Of them all we find but two that we care to mention specifically, viz., the fortieth and forty-second. The defendant’s counsel sought to show that it was not practicable to remove the flues from the boiler for the purpose of ascertaining the condition of the braces. Again, they sought to show to the jury the construction of the boiler. .This testimony was excluded.
It may well be doubted whether one who owns a boiler should be expected to remove all of its flues periodically to ascertain whether the braces áre defective, and a jury, before passing upon that question, should be allowed to understand the construction of the boiler, and the usual practice among those using similar ones; for the question is whether ordinarily prudent and careful men would do so. If not, it is not negligence to omit it. This testimony should have been received.
We are constrained to reverse the judgment, but in the taxation of costs the appellant will be allowed but half of the items for printing the record and brief.
Moore, Grant, and Montgomery, JJ., concurred. | [
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Moore, J.
September 16,1900, plaintiff was riding on the rear platform of one of defendant’s cars. Upon the platform was one Miller. It is the claim of the plaintiff that Miller and the conductor got into an altercation, when the conductor called the motorman to his aid, and that not only Miller, but the plaintiff, was thrown off the car, and plaintiff received injuries for which this action was brought. It was the claim of the defendant that it was Miller, and not its employés, who pulled the plaintiff from the platform. The jury returned a verdict for $1,900. Amotion was made for a new trial, which motion was overruled. The case is brought here by writ of error.
Complaint is made of the admission of certain testimony. If the testimony was inadmissible, the error was cured by the court’s instructing the jurors they were to disregard the testimony objected to.
The judge was requested by defendant to charge.
“ There is no evidence in this case that the injuries claimed to have been received by the plaintiff are permanent.” He did not do so, and failed to call the attention of the jury to that subject at all. In disposing of the motion for a new trial, the judge said:
“There is an inadvertence, possibly, in not precisely charging that there was no evidence of permanent injury. The permanent injury, if any, in this case, was left rather doubtful, — too doubtful, alone, on which to found a verdict. I had supposed that this point was clearly covered, and that the defendant road certainly had every element in the charge in their favor, to cover and include their theory perfectly and beyond question.”
The fact that the omission was due to an inadvertence does not remedy the harm done. Under the facts disclosed by the record, the defendant was entitled to this request, especially if counsel made the argument to the jury upon that subject which it-is alleged he made.
Objection is made to part of the charge bearing upon the question of how the jurors should arrive at their verdict. The language used was not very definite, and is open to the charge of being ambiguous; but, as for other reasons the case is to be reversed, we will not decide whether the language used was reversible error, as it.will not be repeated.
The other assignments of error have been considered. They are either not well taken, or the action of which complaint is made is not likely to occur again.
The judgment is reversed, and a new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Montgomery, J.
This case involves no question of law. The facts, briefly stated, are that on November 3, 1898, the plaintiff sold to the defendants five acres of land in Charlevoix county. One Saltonstall held a mortgage on that land and other lands for $900. According to plaintiff’s contention, the Bakers were to pay one-half of the interest on the mortgage until such time as they should pay the cash for the land. The defendants’ testimony is to the effect that they were to pay one-half of one month’s-interest, and that this they have paid. At the time of the original negotiations, the defendants paid plaintiff $10’ down. On the 13th of December, a deed was prepared and signed by the plaintiff. In the meantime the defendants had negotiated a loan, and prepared a mortgage running to Osborn, Mills & Master, of Kalamazoo, for $1,000. The parties met in the office of Judge Mayne, where the deed was prepared, and Mr. Baker, Judge Mayne, and the plaintiff then went to the bank of Mr. Buttars, where plaintiff says that he supposed the bank was the one to do the business, to pay the mortgage, distribute the money, and pay the balance to him; but he doesn’t recall whó mentioned going to the bank; that he does not know who paid the money that he was to receive into the bank” but had always understood that Judge Mayne passed in a $1,000 check. He then testifies that the Saltonstall mortgage and note were passed over to him; that he demanded $18, forgetting that he had received $10, and received $17 and 80 odd cents. Mr. Buttars testified that he paid him in all about $80, which would be substantially the amount coming to him. Judge Mayne testifies in corroboration of the testimony of Mr. Buttars. Plaintiff testifies that he afterwards went to the bank and inquired about the balance due, it having been left there by mistake; that the mistake occurred by his not recalling that he had paid the interest on the $900 note, and, as he testifies:
“The interest was already paid, and I left it there and didn’t demand it, as I have already said.
“ Q. Then your mistake was in paying the bank one year’s interest that had already been paid ?
“ A. Leaving it there and not demanding it at all, from the thousand dollars.”
He further testifies that he demanded the $18 of the bank, ‘ ‘calculating to leave the interest on the whole note for a year there to pay Saltonstall.” The testimony was undisputed that the Bakers did not receive the money from the bank.
The circuit judge was of the opinion that, under this showing, the plaintiff was not entitled to recover from the Bakers; that plaintiff had acquiesced in the payment of this money to the bank; had himself determined how much he was to receive, and how much was to be applied on his indebtedness to Saltonstall; and that, if any one was liable to him, it was the bank, whom he had, to a certain extent, made his agent to ^receive the money and apply it on the Saltonstall mortgage. We think this the correct inference from the testimony, and, as this is the only question presented by the record, the judgment will be affirmed, with costs.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). Counsel for respondent state their contention thus:
“ The requirement of the statute, when taken m connection with other provisions of the same act, prescribes a discriminating tax operating to the disadvantage of like products of other States when introduced into Michigan, and is therefore in effect a regulation in restraint of commerce among the States, ‘and as such is a usurpation of the power conferred by the Constitution upon the Congress of the United States.’ It is to be observed that, while by the provisions of section 5379 wholesalers of malt liquors are required to pay an annual tax of $500 in each place where they operate a warehouse or depository, manufacturers of malt liquors, on the other hand, are only required to pay a tax of $65 per annum, and are not required to pay any wholesaler’s license whatever; so that, while the importer of malt liquors into the State of Michigan must pay a wholesaler’s license of $500 in each place where he operates a warehouse or depository for the storage of his product in original packages, the local manufacturer, although operating a warehouse or depository in the same place where the importer operates and maintains his, is not compelled to pay any wholesaler’s license whatever. A burden, therefore, is placed upon the foreign product not borne or sustained by the home producer, and consequently the former cannot compete in the local market with the latter. The discrimination, therefore, in favor of the product of the home brewer is clear; and is just as clear as it would have been if the legislature had declared in express terms that beer not produced or brewed in Michigan, but transported into that State from other States for sale there at wholesale, should be subject to the payment of a tax not imposed upon a similar product brewed or produced at home. This discrimination being clear, no conclusion can be reached except that the statute authorizing and directing the same is repugnant to the interstate commerce clause of the Federal Constitution.”
If the premises assumed by the learned counsel are true, their conclusion inevitably follows; for the statute would then prescribe a discriminating, tax, which has been held by many decisions of the Supreme Court of the United States to be void. The defect in the argument of counsel lies in the falsity of their premises. No manufacturer of brewed or malt liquors can establish a warehouse or depot or place of sale at aqy other place than that of his brewery, and avoid the payment of the tax as a wholesaler. People v. De Groot, 111 Mich. 245 (69 N. W. 248). That case is conclusive upon this point. Certainly the same rule must apply to manufacturers from outside the State as applies to manufacturers within the State.
The right to manufacture necessarily implies the right to sell the manufactured product at the manufactory. One who thus sells the liquors mentioned in the statute, manufactured by him, is not a ‘‘ wholesaler ” of liquors, within the popular or legal definition of that word. The provision that “no person paying a manufacturer’s tax on brewed or malt liquors under this act shall be liable to pay a wholesale dealer’s tax on the same ” neither enlarges nor restricts the right of the manufacturer to sell his product. The statute, without this language, would give him the same right of sale that he has with it, viz., the right to sell his product at his brewery. The manufacturer is entitled to keep his goods in store at the place of manufacture for the purposes of sale when receiving orders, and in so doing is not a “wholesaler,” within the popular or legal definition of that word. “Articles which the consumer recognizes as single the retailer keeps wrapped up in dozens, the wholesaler sends the gross, and the manufacturer supplies in packages of a hundred gross. ” 8 Cent. Dict. Enc., under definition of the word “wholesaler.”
It is manifest from an examination of the various provisions of this act that the legislature intended to limit the right to manufacture or sell at wholesale or retail in but one place without the payment of an additional tax. Before either can do business in any place in any county, he must file with the county treasurer a statement in writing and on oath, giving his name and residence, and the ward, village, or township in which he proposes to carry on the business, whether to manufacture, to sell at retail, or wholesale. One cannot carry on two saloons in the same municipality without the payment of two taxes. A manufacturer cannot maintain two separate breweries in the same municipality without paying two*taxes.
There is no discrimination in this case between the home and foreign manufacturer. Either can freely sell his products upon orders received at his place of manufacture, both within and without the State, and each is subject only, in such manufacture and sale, to the regulations imposed by the law of the State where his manufactory is located. This law places both the home and the foreign manufacturer upon the same basis by providing that when each establishes a warehouse in which he deposits his products for sale, and there establishes an agent to carry on the business of selling, he becomes a wholesaler, and is subject to the laws of the State where he assumes to carry on such business. Such, in fact, is the provision of the act of Congress passed after the case of Lyng v. Michigan, 135 U. S. 161 (10 Sup. Ct. 725), was decided. That act was approved August 8, 1890. It is entitled, “An act to limit the effect of the regulations of commerce between the several States and with foreign countries in certain cases.” It provides that “all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein, for use, consumption, sale, or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” 26 Stat. 313.
Under the stipulated facts, the Minneapolis Brewing Company placed the respondent in charge of selling its product at Gladstone, in the State of Michigan, and sent its product to him for sale. Under the above act the business then came within the control of the people of this State. We think that this question is fully settled against.the contention of the respondent by Reymann Brewing Co. v. Brister, 179 U. S. 445 (21 Sup. Ct. 201). It is there stated (at page 456):
“If they [brewing companies] establish places within the State, distinct from the manufactory, where their goods are to be stored, for the purposes of sale and delivery, and such goods are there sold and delivered, then they become traffickers, within the meaning of the law, and are liable to pay the tax.”
The law involved in that case is substantially the same as the one now before us for construction, and the facts are almost identical with those in this case.
It follows that the conviction must be affirmed, and the court below instructed to proceed to sentence.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Montgomery, J.
The facts appearing on the trial are summarized by the circuit judge as follows:
“Plaintiff, a passenger on defendant’s street car, alighted from that car at the intersection of Congress street and Joseph Campau avenue, and, as she passed around the car after alighting, her foot caught in a rope that was dragging, and she was seriously injured. The testimony abundantly proves that some boy who was in the habit of hitching sleds or cans or something of the sort — at least, that is the natural and necessary inference from this testimony — had left that rope attached there. Now, the question is whether there is any evidence of negligence on the part of the street-car company. The question is whether there is any evidence from which it can be inferred that they were negligent in not' discovering the rope and removing it. Bear in mind to what part of this car the rope was attached. It was not attached above, but below, the projection, which is practically level with the platform. Bear in mind that it was after dark; between 6:20 and 6:30 on the evening of January 12th; some time after dark. Of course, the only way a rope of this sort could be discovered would be by close examination. None of the men on the back of that car saw the rope until some one was struck by it, except the one who passed around it when he alighted. I think you would be justified in inferring from the testimony of Reid, who got on at the corner of Woodward avenue and Congress street, that the rope was on from Woodward avenue, from a mile and a quarter to a mile and a half; that it took ?£ minutes to go from Woodward avenue to this place; and, if it was on there, perhaps it was on some time longer. * * *
“ Now, the other suggestion is that, inasmuch as it has been shown to be a custom on the part of the boys on Congress and Baker streets, and upon the other streets upon which this car lin'e is operated, to hitch on, that precaution ought to have been taken. The testimony shows, from all the witnesses except two, that, as soon as the conductors discovered boys were hitching on, they stopped them. There is no custom, in other words, that permitted this, to be done. It is true, two witnesses testified that they had seen boys hitching there without the conductor stopping them, while half a dozen or more witnesses testified that the conductor always stopped them. The only inference I can draw from the testimony, then, is that it was the custom not to permit them.”
The circuit judge was of the opinion that no actionable negligence was shown, and directed a verdict for defendant. In this opinion we concur. The rope was no part of the equipment of the car, and was placed there by a trespasser. ^ The only fault which the plaintiff’s counsel attribute to the defendant is the failure to discover the fact of the trespass and remove the rope. As pertinently suggested by the trial judge, if it was incumbent upon the defendant’s employes to make an inspection every few blocks, or as often as every 7£ minutes, it is difficult to see why such inspection should not have been continuous. The testimony does not show that the conductor in charge of the car in question had any reason to expect that such a rope had been left dangling in the rear of this car. True, there was testimony that on one occasion a rope had been found attached to another car of defendant company, and was cut off; but the conductor of this car is not shown to have had any knowledge of it. And it was a circumstance so unusual that it cannot be held that its occurrence entailed upon the company the duty of providing for a special and continuous inspection to prevent a repetition of such a trespass. A similar question was considered in McCaffrey v. Railroad Co., 47 Hun, 404, which was ruled against the plaintiff. See, also, Fredericks v. Railroad, 157 Pa. St. 103 (37 Atl. 689, 22 L. R. A. 306); Jakoboski v. Railroad Co., 106 Mich. 440 (64 N. W. 461).
The judgment is affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Grant, J.
(after stating the facts). 1. Plaintiff made its prima facie case by introducing the note in evidence. Defendants thereupon moved the court to direct a verdict for the defendants on the ground that the plea and notice showed that the defendants were husband and wife, and the duty rested upon the plaintiff to prove such a consideration as would bind her. Upon its face the note was hers, and it imported a consideration paid to her. It was indorsed by her husband. There was no presumption against the legality of such a note. The burden rested upon the defendant to prove facts which would relieve her from liability. The motion was properly overruled.
2. The defendants then entered into the merits of the controversy, and testimony was taken; the cashier of the bank and Mr. and Mrs. Miller giving testimony. The cashier gave the following testimony in regard to the transaction:
“Mrs. Miller came and asked me if she could borrow a thousand dollars from the bank. I says, ‘ What on ? ’ and she says, ‘ On my note.’ I says, ‘ On what security ? ’ She says, ‘Ain’t .my note good ? ’ I says, ‘ I presume it is, Mrs. Miller, but we are in the habit of having some collateral security or indorser on notes of any size.’ ‘Why,’ she. says, ‘you didn’t ask me for any security on that $200.’ I said, ‘That was a small amount, and I knew you were all right; but I think on an amount of this size our people would want some security.’ She says, ‘ I don’t know what security to give you; haven’t any to give you that you would take.’ I says, ‘ Could you give us an indorser ? ’ She says, ‘ I don’t know who to ask to indorse.’ I says, ‘Wouldn’t Mr. Miller indorse for you ?’ She says, ‘ I presume he would if I would ask him, but don’t want to ask him to indorse my note.’ I took her application down on the book without indorser, and says: ‘ If you want me to submit your application in this shape, will submit it, but am afraid our people will not take it. Think Mr. Miller would not hesitate to indorse the note, and, if he would, thinkthey would take it.’ She says, ‘You may put it down with Mr. Miller’s name;’ and I put it down, and it was passed upon by tbe committee favorably. The note is dated on the 24th of February, 1893, the same date of the application.”
He further testified that he relied upon her statements in making the loan, and understood that .the money was obtained for her separate estate. Mrs. Miller did not deny this testimony of the cashier. She did not tell the cashier that the money was for her husband. If she obtained the money representing that it was for herself individually, and for her separate estate, she will not be heard to defend on the ground that her husband persuaded her to take this course, and to obtain the money for him. She herself testified that she was under no threats or coercion. It is evident from her own testimony that she gave the cashier to understand that she was acting in her individual capacity, and desired the money for her own use in regard to her separate estate. We think the court committed no error in leaving the question to the jury.
3. Conversations which took place between the defendants were incompetent, since no attempt was made to show that they were either in the presence of, or were communicated to, the cashier of the bank.
4. The court allowed a wide latitude to the plaintiff in inquiring into, the business relations between the defendants, and the amount of property and extent of business carried on by each. We think the case was one justifying such inquiry, and that the court committed no error in admitting such testimony.
Judgment is affirmed.
Hooker, O. J., Moore and Montgomery, JJ., concurred.^. | [
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] |
Moore, J.
The plaintiffs recovered a judgment against defendants for $335.30. The defendants have brought the case here by writ of error. It is claimed the court should have directed a verdict in favor of defendants.
The plaintiffs are farmers residing in this State. Defendants reside in Worcester, Mass., and are dealers in hay. Mr. William Pratt lived near Hudson, Mich., and made an arrangement with defendants by which he was to buy hay for them. It is claimed by plaintiffs that, while he was the agent of defendants, they sold him the hay for which this suit was brought. It is claimed by defendants that Mr. Pratt was never authorized by them to buy hay on credit; that, before the transaction in question, the agency of Mr. Pratt had been terminated; that the hay was sold to Mr. Pratt personally, and not to him as the agent of defendants.
"We cannot say, as a matter of law, which of these claims was established. It was shown that, after Mr. Pratt made his arrangement with defendants, he visited a bank, presumably for the purpose of doing business with it. The bank caused a letter to be written to defendants, and under date of August 11, 1900, received a letter, in which it was stated:
“ Dear Sir: Your letter of the 10th inst. at hand, and contents noted. We have engaged Mr. W. J. Pratt, of Prattville, Mich., to work for us on a salary, and we will pay the drafts which he may make on us with bills of lading attached. Yours very truly,
“ J. W. Doon & Co.”
It was also shown that Mr. Doon came on to Michigan, and rode about with Mr. Pratt, and represented that Pratt was buying hay for his firm. To use Mr. Doon’s language:
‘ ‘ I gave the farmers to understand that he was going to buy hay for me; yes, sir. I told the farmers that, if they sold Mr. Pratt any hay, they were to get their cash for it.”
It was also shown that Mr. Pratt bought hay of a number of farmers, and' stored' it in what was known as the ‘ ‘ mill property ” at Prattville, and after this suit was commenced the hay was claimed by defendants, and in at least one instance a balance which was unpaid on the hay by Mr. Pratt was paid by Mr. Doon. It is true Mr. Doon testified that the authority of Mr. Pratt was terminated before this hay was bought, and that his firm never received the hay; but it is claimed that his testimony was inconsistent with statements he made at the time the hay was attached, and we are not prepared to say it was not. We think the testimony made a question for the jury as to whether the agency existed when the hay was sold.
Complaint is made about the admission of the testimony of Mr. Bryant as to what Mr. Pratt told him about the' agency. If there was a doubt about the testimony, we think it was made admissible by the fact that it was first drawn out on the cross-examination that “after Pratt came back from the East he told me the arrangement he had made, and who he was working for, and all about it.”
Error is assigned upon the refusal of the court to give certain requests to charge. We think these requests, so far as they were proper, were fully covered in the general charge of the court.
After the verdict was rendered, a motion was made for a new trial. This motion was overruled, and this is assigned as error. The motion was based upon affidavits, which showed that one of the defendants had stated to their counsel what he expected to prove by witnesses living at Clayton, Hudson, and Prattville, which testimony would make a defense; that, at the time of the attachment proceeding, he saw one of his attorneys for but a short time, and arranged that he was to be notified in ample time to get ready for trial; that he received no notice until September 11th, when he was at Indianapolis; that he came to Hillsdale as soon as he could, arriving there September 12th, and found the trial then in progress, and upon the evening of that day he did all he could by ’phone to learn from parties at Hudson, Prattville, and Clayton what they might know, and to persuade them to attend court in the morning. It was also made to appear that one of the attorneys, who had recently been called into the case, and given charge of it, on September 3d wrote defendants the case had been set for September 11th, and, supposing defendants lived at Providence, R. I., wrote them there, and the letter was returned September 12th to the writer; that on the morning of September 10th one of the attorneys received a letter from Mr. Doon that he would be in Indianapolis, and telegraphed him, and the attorneys did all they could to get him there. The trial occurred at Hillsdale. Counter affidavits were filed, showing that this case was commenced by attachment in March; that Mr. Doon came on from Massachusetts, and secured a release of the property, and was about Hudson and Prattville for at least a week, and that during that visit he employed counsel; that the attorneys for said defendants stated in open court the last day of the trial that they had made an effort to get witnesses from Hudson and Clayton by telephone, but that they did not have subpoenas issued, and did not endeavor to have subpoenas served upon any of the parties whom they desired as witnesses ; that said attorneys for said defendants stated that the parties they had endeavored to secure were E. H. Cogswell, Mr. Gale, and Mr. Cole; that a train ran east from Hillsdale at 9:15 p. m.; that Hudson is east from Hillsdale about 16 miles, and Clayton about 22 miles; and that a train was due from the east about 9 o’clock a. m. It further appeared that, after Mr. Doon arrived, no application was made to postpone the case because Mr. Doon vfras not ready for trial, but the case was allowed to proceed ; Mr. Doon testifying at length, giving his version of the transaction. When a lawsuit is commenced, the parties to it are not justified in waiting until the case is about to be tried before looking up their testimony. Under the facts disclosed by the record, we are not prepared to say the circuit judge did not properly exercise his discretion in refusing a new trial.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Hooker, C. J.
The appellant presented a claim against the estate of Niram A. Fletcher, deceased. It was based on a promissory note for $2,500, with interest at 8 per cent., dated December 29,1881, due two years after date, and signed “Simonds & Fletcher.” A number of unsigned indorsements of payments were written on its back; also the following:
‘‘ Feb. 1, ’87. I consent to any extension of time which may be given to O. H. Simonds on the within note.
“N. A. Fletcher.”
The defendant answered, among other things, that the note was barred by the statute of limitations, and the probate court so held, as did the circuit court upon appeal, a verdict being directed for the defendant. Plaintiff has taken a writ of error.
Five points are raised by the appellant’s counsel, viz.:
First. Was Mr. Fletcher a party to the payments made, and within six years ?
Second. Did Mr. Fletcher acknowledge the debt in writing within six years of his decease, and within the meaning of the statute of limitations of the State of Michigan ?
Third. Was the term ‘ ‘ extension, ” used by Mr. Fletcher on the back of the note, intended to mean indulgence, and intended for an indefinite length of time ?
Fourth. Were the statements of Mr. Fletcher to Mr. Sessions, that he was “as much holden as he possibly could be,” of such a nature that it would operate as a fraud to hold them to have been false ? In other words, is Mr. Fletcher estopped from denying that he told Mr. Sessions the truth ?
Fifth.: After all parties knew of Mr. Fletcher’s surety-ship, did he remain a joint maker, within the meaning of the statute, so that a payment by the principal would not renew the paper as to him ?
For a better understanding of the several points, we will state the facts in connection with the discussion of the questions raised.
The note in question was given when Simonds and Fletcher were in copartnership. Subsequently they dissolved their copartnership, and Simonds left the State. There seems to be no doubt that, as between them, it was afterwards the duty of Simonds to pay the note, and that this was understood by the payee. Counsel for the plaintiff states in his brief': “Now, Mr. Fletcher was a party to this note, and was a surety after the dissolution.” The note became due on January 1, 1884, and the statute ran against it in six years, i. e., January 1, 1890, except as it may have been affected: First, by Simonds’ non-residence'; second, by payments; third, by new promises.
The record is not very clear as to the circumstances of the various payments; yet counsel seem to concede that they were made as indorsed on the note, and that Simonds furnished the money paid in each instance. Whatever the rule may have been at common law (see Mainzinger v. Mohr, 41 Mich. 687 [3 N. W. 183]), our statute has provided that no joint contractor shall lose the benefit of the statute of limitations, so as to be chargeable, by reason only of any payment made by another joint contractor. 3 Comp. Laws, § 9745. And if it should be claimed that payment made by one copartner would bind another, upon the ground of his agency growing out of the copart nership relation, it could not apply here, under our statute, because of the termination of the agency by the dissolution of the copartnership. 13 Am. & Eng. Enc. Law (1st Ed.), 761, and authorities cited.
It is contended, however, that Fletcher was a party to such payments in a way and to a degree that makes him liable. The theory upon which a part payment arrests the running of the statute is that it implies a new promise to pay; and a payment made under'circumstances inconsistent with such an inference is not effective. See Wood, Lim. § 97, and notes. In Mainzinger v. Mohr, 41 Mich. 687 (3 N. W. 183), the statute is construed, and the doctrine stated that the statute requires a new promise, and that it cannot be.implied from the act of one who has not authority to make an express promise. In that case an undisclosed surety, who was a joint maker, went with the principal to the creditor, where the money was paid by the principal under circumstances which justified the creditor in understanding such payment to be the act of both and treating it as a joint act; but the case does not negative the general rule that a new promise must be naturally inferable from the circumstances of the payment, a doctrine that has since been recognized in the cases of Home Life-Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334), and Patterson v. Collier, 113 Mich. 12 (71 N. W. 327, 67 Am. St. Rep. 440).
Several letters which passed‘between Fletcher and Simonds were introduced at the trial, and it is claimed that these contain evidence that the payments were made under circumstances which implied a new promise by Fletcher. These letters were usually written either at the request of the payee, or after demand of payment made to Fletcher by him. It does not appear that any of these letters were written to the payee, or that he ever saw them. One written by Fletcher to Simonds on February G, 1885, states that “ Borden has been bothering me about the interest on your note,” and states that “if he had any Simonds & Fletcher funds on hand he would pay it.” On February 9, 1886, he wrote:
“Mr. Borden has been in a great many times lately, urging me to write to you, asking that something be paid on your note. I have delayed doing so until now, and I could not put him off any longer.”
On December 11, 1888, Simonds wrote Borden as follows:
“Duluth, Minn., Dec. 11th, 1888.
“Andrew Borden,
“Jefferson Ave.,
“Grand Rapids, Mich.
“ Dear Sir: I understand Fletcher paid you $500 on my account. If so, please write me, giving date, and say that it is indorsed on my note.”
In answer to this, Mr. Fletcher wrote as follows:
“Dec. 17th, 1888.
“ Dear Omar: Mr. Borden brought your letter to him, and asked me to answer it. I paid the $500 to him on the 3d day of December, and indorsed the amount on the note myself. He seems to be in very good humor, and wanted me to send you his kindest regards, and said that he wished you much prosperity.”
The following is an extract from a letter’ written by Fletcher to Simonds on January 21, 1891:
“ Mr. Borden was in here about two weeks ago, and asked me to write you requesting you to send him some money. He did not name the amount. I promised to do it, but forgot it. He was in to see me again today, to know what reply you had made, and I told him frankly that I had forgotten to write you at all, but that I would be sure to write you today. I do not think that he feels at all uneasy, or that he cares for any great amount. If it is not convenient for you to pay him any just now, I believe if you should write him a letter to that effect, he would say to let the matter run.”
On June 15, 1891, Fletcher wrote:
“ Dear Omar: I inclose Beckwith’s computation on the Borden note. He says that he found a mistake in the computation of interest made in February, 1886, in which a mistake of over $100 against you was made. He thinks that this computation is now right, but you have the figures, and can go over it and satisfy yourself about it.”
On October 16th he wrote the following:
“Dear Omar: Andrew Borden called on me today, and said that he expected you to send him a new note for amount his due after you received the computation which Mr. Beckwith made and which I sent you. He is anxious to get it, and wanted me to write you at once.”
On October 22, 1891, Simonds sent note to Fletcher as requested, and Fletcher replied on October 24th, as follows:
“Near Omar: I have received your letter of October 22d, with note for $1,077.96 for Andrew Borden, and I will deliver it to him. I do not see why you made it draw 8 per cent, interest, because I think he would have been willing to have let you have it at 7 per cent.”
On March 31, 1892, Fletcher wrote as follows:
“Near Omar: Since you sent me a note last summer to take up Borden’s old note, I have never met him in the office until this morning. You will remember that you sent me one bearing 8 per cent, interest, and that I asked you to send another bearing 7 per cent., as I thought he would be satisfied with that. ■ It seems that I kept them both. I now cancel and return them to you. Mr. Borden has figures from Mr. Beckwith showing much larger sum due than these notes call for, and I said to him that I would write to you and ask you to return me the computation which Beckwith made, and which I sent to you. I will keep it here, and when you come we will make a new note for him, and take the old one up. Please send the computation, and write me telling me when you are likely to be here, and what the news in Duluth is.-”
The computation was returned, and on April 30, 1892, Fletcher wrote to Simonds that “it was clear that Beck-with had made a mistake in his computation,” and sent data from which Simonds could make a computation, expressing the opinion that Borden’s computation was correct. He added:
“Borden wants a new note, and he suggests that he would be glad to have some cash to reduce the amount. He insists on the note drawing 8 per cent, interest.”
Fletcher also wrote the following:
“Sept. 15th, 1892.
“Dear Omar: Mr. Borden and his daughter came in here a few days ago, and asked me to write to you requesting a remittance of such amount as you could spare. I urged him to do the writing himself, but he seemed very anxious that the letter should go from me. I promised him to write immediately, but it slipped my mind, and I am now at least four or five days behind time.”
“Jan. 6th, 1894.
“Dear Omar: Rodney Sessions came in here this afternoon for Mrs. Borden, and said she seemed to be very much exercised about the interest on her note, and had been telling him that, if the interest was not paid promptly, she would demand the principal. I explained to him that the delay in forwarding the other notice to you was owing to neglect on my part. Mr. Sessions said that, if the interest was taken care of promptly, he would use his influence with her to have the principal remain as it is for a time. I wish you could send her some money at once.”
“Jan. 29th, 1894.
“ Dear Omar: I return the note for $1,000 of the Calumet Construction Company, dated November 23d, 1893, which I paid here on the 26th.
“I wrote a letter, and directed it to Chicago, warning you against Edward R. Gilman, and calling your attention to the fact that Mrs. Borden has received no remittance from you. Sessions came in today, and said that she was very angry about it, and was insisting on collecting the note in full, but through his persuasion she had been held off. He says that if a good remittance does not come at once she will not wait longer. You wrote me on the 9th of January that you would send a remittance in a few days.”
There is nothing in these letters that can be construed into a new promise to pay this note. It is perhaps infer-able (though not clear) that demands of payment and threats of suit were made of and against Fletcher, and that Fletcher, at the instance and request of Borden, in some instances, and "perhaps for his own protection, urged Simonds to pay the note, and sought to arrange for new paper, and in one instance said in a letter to Simonds, “We will make a new note for him, and take the old one up.”. If this could be given the force of a similar statement made in a letter to Borden, and it could be held sufficient to arrest the running of the statute even if it were written to him, — which we do not intend to intimate, —the letter seems to have been written more than six years before the claim was filed, and is for that reason ineffective. We have been unable to find just when Mr. Fletcher died, but it is stated in appellant’s brief that the last payment was made in 1899 (August 24th), and that Fletcher died afterwards, and promises made or letters written before August 24, 1893, would not, therefore, be effective to meet the defense; and this enables us to eliminate all of the letters except those of January 6 and January 29, 1894, so far as the question of payment is concerned, neither one of which contains the semblance of a promise, though the earlier expresses a wish that Simonds would make a payment at once. Payments were made a month or so later by Simonds, and it is perhaps not unreasonable to say that they were made at the request of Fletcher.
It seems to be conceded that payments were made as per the indorsements. The evidence is silent as to who paid the money over, though we understand it to be claimed that all was paid by Mr. Simonds after October 17, 1892, on which occasion a payment of $250 was received from or through Mr. Fletcher, according to the testimony of Mrs. Eby, and possibly that should be treated as a disputed fact if it were important. The only evidence that can be said to connect Fletcher with payments made within six years before Fletcher’s death consists of the last two letters. From them we may infer that the money was sent by Simonds to the creditor by reason of the threat contained in the latter letter, and the request of Fletcher as shown by the former. These two letters contain all the evidence of a new promise by Fletcher inferable from pay ments made within six years before the death of Fletcher, which occurred after August 24, 1899. They and they alone show the circumstances of the payments. Stated in its most favorable light for the plaintiff, was a payment by Simonds, induced by the request of Fletcher, one which the creditor had a right to treat as a payment made by Fletcher ?
The day has gone by when it can be held that a mere payment by one joint maker of a note can arrest the running of the statute as against another. Our statute (3 Comp. Laws, § 9745) has changed the common-law rule, and as was said in Mainzinger v. Mohr, 41 Mich. 687 (3 N. W. 184):
“A* payment under this statute is equivalent to a new promise; and, as one cannot make the express promise for the other, neither can he make for him the indirect.promise which a payment implies.”
It is only when authority is given to one to make a payment on behalf of another that such payment can bind a co-contractor of him who makes the payment. Where it can be said that the payment is the act of both, and the creditor has reason to so understand it from the fact that both principal and surety are present and participate in it, there being nothing to inform him that the money paid was not furnished in whole or in part by the surety, it has been held that the case must be looked at from the standpoint of the creditor, and in the light of the appearances as they were then presented to him. Such was the case of Mainzinger v. Mohr, supra, where it was said that:
“ The debtors came together [to the creditor’s place of business]; their sole business was the payment of interest on his demand; it was reckoned up, paid, and credited in the presence and with the apparent co-operation of both. Naturally, he would suppose that the money paid was the money of the one who, as between himself and his creditor, ought to pay it; but he was only concerned with the fact that what they did was by co-operative and conjoint act. He had, therefore, a right to understand that this was a mutual payment, and that the parties thereby mutually renewed their promise of payment. If Main-zinger, at the time, had in his own mind any purpose to consider and treat the transaction as being something different from what the appearances indicated, it was his duty to notify Mohr that Miller alone was making the payment, and Mohr tuould then have been put on his guard, and would have had only himself to blame if he had lost his remedy by subsequent delay.”
The present case is not so strong a case for the plaintiff as the one discussed. Fletcher did not go with Simonds to pay the money, and, so far as we can discern, there was nothing that would lead the creditor to believe that the money was furnished or paid by Fletcher. On the contrary, he knew that it was not. At his request Fletcher had written, urging Simonds to pay it. It was unnecessary for Fletcher to notify Borden that Simonds alone was paying the money lest he should, from the appearances, be led to believe the contrary, as in the Mainzinger Case, for the contrary was not only true, but it was apparent. It will be seen, therefore, that this case is not within the reasoning of the Mainzinger Case, unless we can say that a desire that Simonds should pay, and willingness to induce him to pay, an honest debt of his own, can be said to make Fletcher such a participant in the transaction as to justify the plaintiff in believing the payment to be one made by him. If we devest the question of the apparent hardship of allowing the Fletcher estate to avoid its obligation to pay by virtue of the statute, we shall find nothing to justify us in saying that this ought to be treated as a payment by Fletcher, which it clearly was not, or that Borden so understood it, which he clearly did not. The question of payment as a substitute for a written new promise is separate and distinct from an express promise, and, if it were not, there is no promise here, oral or written, which could have given any different color to this matter of payment, which is at most a payment by Simonds at the request of his surety, and was so understood.
We may next consider the second question: Did Mr. Fletcher acknowledge the debt in writing within six years of his decease, and within the meaning of the statute of limitations? 3 Comp. Laws, § 9740, provides:
“In actions founded upon contract, express or implied, no acknowledgment or promise shall be evidence of a continuing contract, whereby to take a case out of the provisions of this chapter, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing, signed by the party to be charged thereby.”
The only writings signed by Fletcher within six years before his death are the two letters quoted, and we have no hesitation in saying that they do not contain an acknowledgment of a continuing obligation, under the authorities cited in the note to that section.
The third question arises upon the consent to an extension of the note. It was indorsed on the note, and signed by Fletcher, and to get any benefit from it the plaintiff must contend that it was a continuing consent to indulgence. This was dated in February, 1887, and was never renewed. On the contrary, Mr. Fletcher refused to extend the security longer by signing again, when asked to do so by the creditor’s agent. He said he had signed it once, and the note was just as good as though he signed it. This occurred about six years after the extension. Counsel for defendant insist that this was a contract for a legal and technical extension, whereby,, for a valuable consideration, the creditor, should give to the principal debtor, Simonds, a valid and definite enlargement of time, which should give him immunity from suit upon the note during the interval, and that it was a consent to but one such extension, and that such extension was never given. On the other hand, plaintiff’s counsel says that this language is susceptible of another meaning, viz., a consent to indulgence, and that, construed in the light of surrounding circumstances, it may be reasonably given that construction.
The testimony shows that the debt was due to a client of Fletcher, and it is reasonable to infer that he was reluc tant to bring suit against him, and it is clear that he yielded to Fletcher’s request that he give Simonds time. It is manifest that he did not wish to release Fletcher, for he took the writing in 1887. This was a little over three years from the time the note became due. It was unnecessary at this time except upon the theory that Fletcher was a surety, and that it was the intention to give Simonds a valid extension of time that might release him. On the other hand, there is no evidence indicating a design to give such an extension, or that Fletcher sought for anything more than forbearance, which he was continually aiding Simonds to obtain; and, indeed, there is nothing but the consent itself that indicates that technical extension was ever asked, and there never was a time when the holder of the note was under contract obligations not to sue. When the subject came up between Sessions, acting for claimant, and Fletcher, neither party seems to have thought that it referred to technical extension merely. Sessions appears to have feared that the consent might soon become inoperative by the lapse of time, and Fletcher assured him that it was as good as though he signed it again. The court allowed testimony of Fletcher’s refusal to stand, and struck out the reason for such refusal infer-able from his language. We are of the opinion that this testimony was competent, as a circumstance which, with others, tended to show the light in which the parties at all times regarded this agreement, which was susceptible of two interpretations. It was followed by similar conduct, Fletcher asking and the holder granting forbearance for several years thereafter; and as late as March 31, 1892, he appears to have considered himself bound, for he then wrote to Simonds that they would give another note. Here was at least a question of fact whether the parties did not intend and understand the consent to relate to forbearance and successive indulgences as to all or a portion of the note, unless we must say that the written consent was so unequivocal in its terms as to preclude the idea of ambiguity.
The language used in this writing is not necessarily ambiguous, but, when taken in connection with the circumstances, is susceptible of a different construction from that which its language imports if taken in its technical sense; yet it is doubtful if the sense contended for by the claimant is not that which would be generally understood by persons outside of the profession of the law. See Columbus Sewer-Pipe Co. v. Ganser, 58 Mich. 391 (25 N. W. 377, 55 Am. Rep. 697); Moran v. Lezotte, 54 Mich. 83 (19 N. W. 757); Home Sav. Bank v. Hosie, 119 Mich. 125 (77 N. W. 625). Parol evidence is admissible to aid in arriving at the intention of parties in the use of equivocal words in a contract. The rule is stated in 2 Am. & Eng. Enc. Law (2d Ed.), p. 291, as follows:
“The true doctrine seems to be that, while direct evidence of intention is not admissible in explanation of ambiguous terms in a writing, yet proof of collateral facts and surrounding circumstances, existing when the instrument was made, may be properly admitted, in order that the court may be placed as nearly as possible in the situation of the testator, or contracting parties, as the case may be, with a view the better to adjudge in what sense the language of the instrument was intended to be used, and to apply it to the subject-matter.”
Among the cases supporting the rule permitting the interpretation of language, susceptible to two constructions, in the light of surrounding circumstances, is Facey v. Otis, 11 Mich. 213, where parol proof of such circumstances was resorted to, to determine whether the contract was made by one party for himself or as agent for another. The case of North American Fire-Ins. Co. v. Throop, 22 Mich. 146 (7 Am. Rep. 638), is another case where parol proof of surrounding circumstances was received to explain the sense in which equivocal language was used. In Waldron v. Waldron, 45 Mich. 350 (7 N. W. 894), the identity of land devised turned upon such evidence of surrounding circumstances; while in the case of Moran v. Lezotte, 54 Mich. 83 (19 N. W. 757), the words “running to the rear” were made to read “running towards the rear,” through the force of surrounding circumstances. See, also, Cook v. Brown, 62 Mich. 479 (29 N. W. 46, 4 Am. St. Rep. 870), and Home Sav. Bank v. Hosie, 119 Mich. 123 (77 N. W. 625). We have a number of cases which hold that it is competent to show that a name written upon the back of a note was placed there before uttering the note, thereby making one a joint maker who might otherwise be an indorser, and perhaps would be understood to be such from the writing unexplained. Rothschild v. Grix, 31 Mich. 150 (18 Am. Rep. 171); Herbage v. McEntee, 40 Mich. 337 (29 Am. Rep. 536); Greusel v. Hubbard, 51 Mich. 97 (16 N. W. 248, 47 Am. Rep. 549); Farwell v. Ensign, 66 Mich. 600 (33 N. W. 734); Sibley v. Bank, 41 Mich. 196 (1 N. W. 930). See, also, Eckford v. Berry, 87 Tex. 415 (28 S. W. 937). In Kendrick v. Beard, 81 Mich. 182 (45 N. W. 837), parol evidence was used to determine whether an instrument was intended as a mortgage or conditional sale. For cases permitting evidence of the acts of the parties under the contract as aids to construction, see 2 Am. & Eng. Enc. Law (2d Ed.), p. 293; Kendrick v. Beard, supra. Again, it is stated in 2 Am. & Eng. Enc. Law (2d Ed.), p. 303, that “parol evidence may be admitted where it appears from extrinsic evidence that there are two persons or objects or modes of performance corresponding to the terms of the contract;” and the doctrine is illustrated by cases cited in the note. See, also, Id. 297, 298.
We do not overlook the cases cited by defendant’s counsel. The case of Rochester Sav. Bank v. Chick, 64 N. H. 410 (13 Atl. 872), arose upon a consent quite similar to that in the case before us, except that it was a part of the note itself at the time the note was signed. The case was apparently barren of circumstances indicating any understanding beyond what the words themselves imported. We think the case distinguishable from this case. The case of Gray’s Ex’rs v. Brown, 22 Ala. 262, is also distinguishable. The other cases cited need not be discussed further than to say that if this consent was an agreement for indulgence, and the same was given in reliance upon it, a consideration for the consent cannot be said to be wanting.
We think the learned circuit judge erred in directing a vei’dict for the defendant.
The judgment is reversed, and a new trial ordered.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
This is an action upon a promissory note in the sum of $200, made by the defendant in the name of Hine & Co., payable to the order of the Valley Coal Company, indorsed on the back, “Valley Coal Company, I. J. Hiller, Secretary.” The plaintiff recovered judgment by direction of the court, and defendant brings error.'
Objection was made to the introduction of the note in evidence, upon the ground that the authority of Hiller to make the indorsement had not been proved. The record shows that the note in question was given in part renewal of other paper made by the defendant and indorsed by the secretary, who was also manager; that, when the note in question was made, it replaced in part the former note. The president of the Yalley Coal Company was also the cashier of the bank, who accepted the note in question. It also appears that the secretary and president had made another note, accepted by the defendant, and this after a consultation of the officers of the company relative to the transactions between the Yalley Coal Company and defendant. We think enough appears, therefore, to show prima facie that the authority of the secretary to indorse this, paper was recognized by the corporation. See 1 Daniel, Neg. Inst. § 394.
The only other question presented is whether this defendant is in position to assert, as against the ,bank, equities existing between herself and the Valley Coal Company. The facts are that at the time of the execution of the original note, of which this is in part a renewal, the Valley Coal Company undertook to sell and deliver to defendant 1,333J tons of coal, and two notes were given in payment for the same, and the coal was the only consideration for the paper; and it was expressly agreed that, if the coal company failed to deliver the amount of coal contracted, the defendant should be liable on the paper only for the coal delivered. The company failed to deliver any considerable portion of the coal, so that, as between the defendant and the Valley Coal Company, the equities are with the defendant, and a complete defense exists. The testimony is undisputed, however, that the plaintiff bank discounted the original paper immediately upon its execution, and without notice of any defect in the same, except as hereinafter stated, and that the present paper was given in renewal of such first note. The defendant sought to show notice to the bank by showing the fact that the cashier of the bank, Mr. Shaver, was also president of the Valley Coal Company, and that he knew of the contract above referred to, and that, as he discounted the paper, the bank was chargeable with knowledge of the infirmities of the paper. The record shows without dispute that, when the note was offered for discount by the secretary of the coal company, Mr. Shaver consulted two of the directors, and after consulting them took the paper, and discounted it in the regular course of the banking business. The question whether, under these circumstances, the bank was chargeable with the knowledge of the cashier, who was acting in a dual capacity, has been recently considered by this court in the case of State Sav. Bank v. Montgomery, 126 Mich. 327 (85 N. W. 879). The reasoning in that case decides the present. See, also, Innerarity v. Bank, 139 Mass. 332 (1 N. E. 282, 52 Am. Rep. 710), and the cases cited in State Sav. Bank v. Montgomery, supra.
Judgment affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). The jury, by their verdict, have settled the questions of fact submitted to them in favor of the plaintiff. These were:
1. Did the plaintiff proceed in the erection of the wall without the permission of the architect, defendant’s authorized agent ?
2. Did he protect the wall in the usual manner by the use of manure, and as directed by the architect ?
3. Was the wall properly bonded, and was the use of some stones smaller than those mentioned in the contract a violation of it ?
4. Was the trouble with the wall caused by extreme cold weather, which froze and billed the mortar ?
5. Was the mortar made as required by the contract?
6. Had plaintiff substantially performed the contract ?
Upon these questions there was a conflict of evidence.
Plaintiff was not an insurer of the success of the work. He agreed to perform it in accordance with certain plans and specifications. If he made the mortar as provided by the contract, and protected it as he agreed, and performed the work as he was directed or permitted to do by defendant’s proper authorities, he is not responsible for the condition of the wall caused by freezing. He did not guarantee that the-wall should stand the weather. That risk was assumed by the defendant. A similar question arose in Filbert v. City of Philadelphia, 181 Pa. St. 530 (37 Atl. 545); Harlow v. Borough of Homestead, 194 Pa. St. 57 (45 Atl. 87). These cases fully support the instructions of the court.
Counsel for defendant insist that the work was not done to the satisfaction of the board of public works; that that body was the final arbiter upon the question, and its judgment should be conclusive. Counsel, however, upon the argument, conceded that the defendant could not arbitrarily determine that the wall was not satisfactory, that plaintiff had not complied with the contract, and refuse payment. This concession leaves open the question for a court or a jury whether such determination is arbitrary, and this, as a matter of course, involves the question whether the plaintiff had substantially fulfilled his contract. Under this concession it would seem almost idle to examine the authorities. The defendant’s counsel, notwithstanding this concession, seek to bring the case within the following decisions of this court: Gibson v. Cranage, 39 Mich. 49 (33 Am. Rep. 351); Walter A. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57); Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35 N. W. 841); Platt v. Broderick, 70 Mich. 577 (38 N. W. 579); United States Electric Fire-Alarm Co. v. City of Big Rapids, 78 Mich. 67 (43 N. W. 1030); Pierce v. Cooley, 56 Mich. 552 (23 N. W. 310); Koehler v. Buhl, 94 Mich. 496 (54 N. W. 157); Housding v. Solomon, 127 Mich. 654 (87 N. W. 57).
Those cases do not control contracts of this character. In Gibson v. Cranage the agreementVas for the painting of a portrait, which should be perfectly satisfactory to the person for whom it was painted. In Walter A. Wood Machine Co. v. Smith a harvesting machine was delivered under a contract of sale, which provided that the purchaser need not keep it unless it worked to his satisfaction. The others are similar cases. In those cases it made no difference what the character of the picture or machine was, or whether the one was properly painted ©r the other properly constructed. Those cases involve no work to be performed according to plans and specifications. In every case but one the vendor retained possession of his property, or it was returned to him when the purchaser had decided that it was not satisfactory. In Koehler v. Buhl the contract was one of employment, the services rendered to be to the satisfaction of the employer. Plaintiff was paid for The full time he worked. Upon being discharged, he sought to recover for the balance of the term of employment. It was held that the employer was not bound to give any reasons for discharging him; it was sufficient that the employer was not satisfied. Contracts of this character are well described in Walter A. Wood Machine Co. v. Smith:
“The cases of this class are generally such as involve the feelings, taste, or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capable of being seen and appreciated by others.”
A good illustration of this class of contracts is found in Richison v. Mead, 11 S. Dak. 639 (80 N. W. 131), where R. agreed to sink a well for M. which would produce a Row of water satisfactory to M. The court, held (citing many authorities) that the contract was fulfilled by the production of a supply of water reasonable and sufficient for M.’s wants and needs upon his farm.
“It will not do for the defendant to say that he is not satisfied with the flow of water, without showing that the supply of water furnished by this well was insufficient for the uses of his farm. ”
Furthermore, the conduct of the defendant, through its inspector and architect and board of public works, estops it from now claiming that the contract was not fulfilled. Its authorized agents were there during the entire progress of the work, charged with the duty to see that it was properly done. The city, through its board of public works, acted weekly upon the reports made, and paid the amounts due for the estimates. The law would not permit defendant to see this work go. on, to ratify it day after day and week after week, to see plaintiff putting in stone not in exact accord with the contract, and then say, when the work is done, “You have not complied with the contract.” Its time to accept or reject was when the work was being done. It could not lull the plaintiff into the belief that this work was satisfactory, and, when completed, reject it. Laycock v. Moon, 97 Wis. 59 (72 N. W. 372); Lauman v. Clark, 73 Ill. App. 659; Ashland Cement Co. v. Shores, 105 Wis. 122 (81 N. W. 136).
We think the court’s instructions are sustained, both by reason and authority. It is unnecessary to discuss the errors assigned upon the refusal to give certain of the defendant’s requests. They are antagonistic to the instructions given, and, under our holding, were properly rejected.
We find no error upon the record, and the judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). 1. We do not deem it essential to enter into a detailed statement of the testimony in regard to the negotiations between these two-corporations which culminated in the latter’s becoming possessed of all the business and assets of the former. "It is sufficient to say that there was evidence to sustain the charge of the court, and to show that defendant had swallowed up all the business and assets of the former-company, had notified the holders of contracts in the former company that it (the latter) had assumed them and would pay them, and that one consideration for such transfer was the assumption by the defendant of the contracts made with the former company, and that plaintiff and other contract holders in the former company acted in accordance therewith. The instruction was in direct accord with the former holdings of this court. Shadford v. Detroit, etc., Railway, 130 Mich. 300 (89 N. W. 960), and authorities there cited. Counsel for the defendant characterizes the transaction as one solely of purchase, in which the purchaser is not liable for the debts of the vendor. As shown in the above cases, that principle does not apply to cases of this character.
2. The defendant is not in position to assert that these contracts are ultra vires. There is nothing to indicate that they were not entered into in good faith. The defendant has received the plaintiff’s money. The law estops it to now assert, “You cannot have what I promised to give, because I had no authority to make the contract.”
3. It is next asserted that this is a gambling contract, and void, as against public policy. We cannot so hold. The contract provides for the payment of $80 in cash, and the agreement to deliver, in consideration therefor, a diamond, which the party (the vendee) may keep or sell back, as he chooses. It was contemplated that many forfeitures would occur from failure to make weekly payments, and that the corporation would make large gains from this source. They are not gambling contracts upon their face, nor does the testimony taken in this case show them to be such. There is no mutuality in a gambling contract; no opportunity for both sides to make gains; no consideration to be paid by one and received by the other. One must gain, and the other must lose. This contract is not within the definition of gambling contracts. 14 Am. & Eng. Enc. Law (2d Ed.), 581, 582.
"We have not before us the question of whether the State should permit corporations to be organized for such purposes, or permit foreign corporations to carry on such business within the State. That question may arise in a direct proceeding by the State against the corporation.
The judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J.,'did not sit. | [
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] |
Campbell, J:
The city of Grand Rapids brings error on a judgment recovered against it by defendant in error, for the obstruction of a highway by building a reservoir across it, whereby he was damaged as a lot owner. The city had taken no-steps to vacate the highway or any part of it, and the chief contention was as to the dedication and acceptance of the-street, and the damages.
The foundation of the public right was in a plat purporting to be made by the owners of the land.. Proof was introduced by producing the recorded copy, and not the original, and this, although bearing the certificate of a notary,, was not under his seal. At the date of this plat, October, 1872, the law required the acknowledgment of plats to be-under the seal of the acknowledging officer.—C. L., § 1345.
Our attention has not been called to any statute making the unauthorized record of plats prima facie evidence of their execution and validity.
Although the objections to the rulings of the court are-in some respects informal, yet we find nothing in the record before us to indicate that there was any other adequate evidence of dedication by the owner of the land. Title was-not shown in the parties making the plat, so far as we can determine, and it does not appear from the printed return that any recovery could have been had without the production of the registry. There was evidence tending- to prove-corporate action, but it meant nothing independent of the-plat. There was a second plat properly acknowledged under the amended act of 1873, but it does not in any way identify or help out the plat of 1872, which covered the property in dispute.
We think the court erred in receiving the- earlier plat,, and that it should have been ruled out..
The other objections to testimony as set forth in the-record are very vague, and the rulings refusing charges-asked by the plaintiff in error were not excepted to. It-would therefore be of no use to- discuss, questions which if raised again will probably come up in a better shape for decision.
Judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Campbell, J:
Lucy M. Maynard, by her last will, directed the residue of her estate, real and personal, not otherwise disposed of, to be sold and converted into money and applied under the following provisions:
“The effects thereof I give to David A. Woodard, Harmon Allen and Thomas Richards, district board for fractional school .district No. 1 in Milan and No. 1 in York, and their successors forever, in trust for the following named purposes: I direct that the funds so placed at the disposal of the said district board shall be placed at interest by them and the interest be annually used for purchasing and adding to a school library, the said library to be selected and cared for by the said district board or their legal representatives. And it is my wish that such books be selected as will be suitable for people of all ages and classes within the said district, and so used by them under proper rules and directions of the said board as shall best promote the interest of education, general literature and morality.”
The validity of this bequest is attacked by two of the heirs at law. The circuit court of Washtenaw county, affirming the order of the probate court, held the provisions to be valid; and the conclusions from the facts found were, “that the fair result of the bequest is to constitute the school district referred to, acting through its district board, trustee; and that the residue now remaining in the hands of the executors should be assigned to the persons constituting the district board of said school district, and their successors forever, for the uses and purposes expressed in. said will.”
From this order, two of the heirs, David and John Maynard, appeal. In order to determine the questions raised by the appeal, it is necessary to consider the legal position of school districts and school boards.
Every school district is a corporation, and the technical corporate name of this district is fractional school district number one in Milan and number one in York.
The district board .have custody and care of all the property and moneys of the district (except such as may be confided under certain circumstances to the director), and are required to apply and pay over all school moneys belonging to the district in accordance with law. Where there are district libraries, these are under the care and management of the district board, whose control is general, and who make selections and purchases, and provide for the safe keeping and use of the books.
It is manifest, therefore, that both the intended beneficiary and the managers are persons known to the law as competent to take and use all property destined for the legitimate uses of school districts, when sufficiently designated'and granted.
The object of the will is entirely plain. It proposes to appropriate money to be used and managed permanently for the purposes of a district school library. The books are to be selected by the board for the time being, .and the selection is with a view to promote the interests of “education, general literature and morality.”
The ordinance of 1787, under which this region was first set apart for its future creation into states, which have been organized under its sanctions, declared that religion, morality and knowledge were necessary to good government, and the happiness of mankind, and provided that for these expressed purposes “schools and the means of education shall forever be encouraged.” It is somewhat strange, therefore, to have it suggested that libraries are not within the proper range of school apparatus, or that the purposes set forth in this will are in conflict with public school purposes. When schools cease to be used for such purposes, they will cease to be worthy of support or toleration. Nothing but poverty can make it proper for any school district to deprive itself of the valuable aid of libraries, which enlarge and supplement the work of the teacher, and educate people of all ages as no other instrumentalities can educate them. The bequest in controversy, if invalid, must be so held because of some infirmity in the legal constitution of, the district, or of some defect in the declaration of the trust.
The bequest is for a purpose coming within the range of charities, but it is not one which requires any consideration of the doctrines which apply under the English system to imperfectly defined gifts and trusts. The property and the trusts are definite, the beneficiary is definite and the trustees or managers are definite. If no' managers were named, the administration of the trust would devolve on those officers who manage district business, and the board designated perform that function. The discretion involved, therefore, is the discretion of the lawful administrators of the district, and is a corporate discretion. There is no room for technical criticism upon the question whether the bequest is to the district or to the board. The intention of the will is not obscure, and the testatrix has directed the money to be paid just as she would have paid it in person had she desired during life to make a gift, to the district.
There is really but one question of any importance on the record. That is, whether the corporation is legally capable of administering such a trust, which the appellants claim is not within the statutory powers; and they insist these bodies have none but statutory powers, and cannot go beyond them.
Upon this point the diligence of counsel has collected much learning, but it seems to have been overlooked that the subject has already been disposed of in this court, and we do not care to enlarge upon it.
In Stuart v. School District No. 1 in Kalamazoo, 30 Mich, R., 69, there was an examination into the powers of school districts to enlarge and extend their courses of instruction, and it was held the statutes could not be narrowly construed without doing violence to their intent. In Hatheway v. Sackett, 32 Mich. R., 97, the contest was over a bequest to a village of fifteen thousand dollars to be used in the erection of a building for a high school. The objection was made there which is made here, that the purpose was foreign to the objects of the corporation. It was held, however, not to be repugnant, on the ground that education was a recognized factor in all civilization, and that schools were as important instruments of public advancement as municipal institutions, and neither foreign nor incongruous elements in municipal affairs.
Whether school districts could, without statutory authority, raise money for any library not meant for the purposes of the schools, is a very different question from whether a district library, if obtained without taxation, would be foreign to the educational interests of the district. We are not disposed to regard the present library law as having any especial bearing on this matter. The argument which in the absence of such a law would exclude a library, would, possibly, stand iii the way of keeping up any library not in all things patterned after the statute, and supported in the same way. But we have no hesitation in holding, in accordance with the previous decision, that there is nothing in our laws which cuts off public corporations from accepting benevolent offerings to enable them to extend their usefulness and benefit their people, by enlarging their opportunities for culture and refinement, without multiplying or increasing their burdens. We do not hold that they may not reject such gifts if they have not intelligence enough to appreciate them. But we think the acceptance of such a bequest as this by a school district is in the direct line of corporate-authority.
The judgment of the court below must be affirmed, with costs of both courts, and the order be remitted for further-proceedings.
The other Justices concurred. | [
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Graves, J:
The board- of supervisors of Ingham county, at a special meeting in March last, passed a resolution to remove from office two of the county superintendents of the poor, namely: Messrs. Hayner and Huntington, and to appoint in their place Messrs. Craddock and "Williams. Both Hayner and Huntington had some time to serve. The relator was the third superintendent under an appointment made previously, and was not disturbed.
This proceeding by the supervisors was caused by conflicting action concerning the purchase of a poor-house farm for the county, a majority being of the opinion that Messrs. Hayner and Huntington had violated faith with the supervisors in certain transactions connected with the purchase and had attempted a fraud on the county, and it was upon this ground that the resolution was based. It was not founded on the authority contained in subdivision 14 of section 11 of the general act defining the powers and duties of boards of supervisors. — § 477, C. L. They were not complained of for any neglect to report or give bonds, and the resolution failed to receive the vote required by that statute.
Having passed the resolution to oust Hayner and Huntington, and to put Craddock and Williams in their place, the supervisors ordered the respondent to pay all orders signed by a majority of the board of superintendents, made up of relator, Craddock and Williams.
A few days afterwards, and on March 19, the relator and Craddock and Williams met, and assuming to be the board of superintendents, united in drawing an order in favor of one Woodworth or bearer for six dollars and forty-four cents on the respondent, and he refused to pay it, on the ground, in substance, that Craddock and Williams were not superintendents, and hence that the order was not sanctioned by a majority.
The relator insists that Craddock and Williams were superintendents, and that the order was well drawn, and he asks that a mandamus may be awarded to compel the respondent to pay the order, it being admitted that he has funds applicable to legal orders.
The counsel for relator have not been able to point out any provision giving express power to the board of supervisors to make the removal attempted in this case, and we have not been able to discover any, and we think the argument in favor of implying the power is not well founded.
The statute fixes the term of the superintendents at three years, and the supervisors are required to appoint for such term. — § 1817, G. L. And under the provision contained in the supervisors’ act for making removals the supervisors are empowered to remove on the specific grounds of neglecting or refusing to report or to give bonds.—Ch. 10, C. L., sub. 14, § 477.
The general statute concerning removals (ch. 11, G. L.) contains no provision applicable 'to superintendents of the poor. Hence there would seem to be no provision for the removal of these officers except the specific regulation in the supervisors’ act. It would therefore seem that the legislature meant to confer on the supervisors a power to remove on the two specified grounds, but had no intention to give the right on any other ground, or to delegate to the supervisors a discretionary general power to remove. The pro vision in the supervisors’ act, in so far as it applies to superintendents of the poor, would be rendered entirely gratuitous if a general authority to remove were to be implied or should be considered as a consequence of the power to appoint.
Our state system favors appointments for fixed periods, .and almost entirely rejects the policy of removals at will, .and this rule of action appears to have been observed in the regulations concerning superintendents.
Considering, as we must, that the supervisors were not ■empowered to remove Hayner and Huntington for the cause assigned, it follows that the resolution for their removal created no vacancy to be simultaneously filled by the appointment of Craddock and Williams. Their appointment consequently was not a valid one. It may be well to observe here that the respondent’s duty to recognize orders made upon him would not necessarily depend on the legal "title of the superintendents. The important question on application for mandamus to compel him to pay must be uather upon the actual status of the makers of the orders -and the attitude of the general public towards them, and the inquiry here concerning the validity of the appointment is not to make the event of the application turn upon the result of that inquiry.
The appointment is considered, not to try the right to •office, but because the question is inseparably connected with ■the question of the position in fact of the appointees.
As we have seen, the appointment was not authorized, and unless it appears that notwithstanding the want of title ■Craddock and Williams actually got possession and were generally reputed to be superintendents, and hence were-•officers de facto, this application cannot be sustained.
Now, if Hayner and Huntington, who were lawfully in •office, have never yielded, but have held on and continued to act, then Craddock and Williams have never got possession and cannot be regarded as officers de factor
The office of superintendent is single, and it is legally impossible that it should be occupied by two at the same time. The relator’s case in this connection is, that Craddock and Williams qualified, and that the supervisors recognized them at once as lawful officers, and that they assumed to act in the single instance of making the order now in question, and that relator, as third superintendent, with an undisputed title, acted with them on that occasion and so recognized their right.
As the supervisors acted without authority in making the appointment, their immediate recognition of the appointment as one to be respected cannot be regarded as of any importance. They merely attributed validity to their own invalid act. The fact of making the order in question can scarcely be urged as something helping to show authority to make it, and the circumstance that relator joined is of small consequence to show that Craddock and Williams were in and reputed to be officers. He was a party to the controversy which caused the attempted change, and desired that Craddock and Williams should hold. He believed they were entitled and sided with them. This is not mentioned as any thing improper, but as a fact giving color to his acceptance of Craddock and Williams as colleagues or co-superintendents. .
As relator he does not claim that those gentlemen actually got possession of the places or were generally reputed to be superintendents.
On the other hand, however, the answer, which for the purpose of this hearing must be taken to be true, explicitly avers that Hayner and Huntington have retained the files and- records, and have refused to surrender them to Craddock and Williams, and have constantly denied the right of the supervisors to make the removal, and have continued to act and are now acting as superintendents.
The effect of the statements in the answer is, that, Hayner and Huntington have never yielded possession, and that Craddock and Williams have never obtained it, and the effect of the whole showing is, that the latter gentlemen have never been superintendents by general repute, have never been iii a course of acting as superintendents, with general acquiescence in their right to act so.
It does not appear, therefore, that the facts existed which made it the legal duty of the respondent to pay the order in question, and as a consequence the writ must be denied.
We give no opinion as to the correctness of the action had in regard to purchasing the farm.
The other Justices .concurred. | [
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Marston, J:
A bill of complaint was filed in the circuit court for the ■•county of Kent, in chancery, to foreclose a mortgage given by defendant to complainant. A decree was obtained and -the premises were sold by the circuit court commissioner thereunder on the 5th day of April, 1875, to complainant, who was the highest bidder. The purchaser, upon the 22d ■day of May following, conveyed the premises to Horace Tompkins, who entered into possession of the premises and made improvements thereon.
Defendant Jarvis, upon the 26th day of September, 1876, •filed his petition in said court to have the sale of April 5, 1875, set aside and held for naught, and a sale de novo -ordered, for the reason that the sale was on a day of gen•eral election; that the lands were bid off before the ho.ur mentioned in the notice of sale, and inadequacy of price. -Affidavits were filed in support of, and also against, the facts set forth in the petition. A hearing was had, and on the 7th day of December, 1876, the sale was set aside and held for naught, and a new sale ordered in case defendant made default in payment of the amount of the-original decree, with costs. Afterwards a motion was made to vacate and set aside this order, which was denied. Complainant then appealed from both orders.
It appeared upon the first hearing that the subsequent purchaser, Tompkins, had no notice of the proceedings then being taken, and this was one of the reasons assigned in the motion to vacate the order of December 7th.
No question is raised as to the right of complainant to appeal because of a want of interest, he having sold to a third party. We think it must be assumed that a complainant who has purchased at a foreclosure sale and after-wards conveyed to a third party, would necessarily be injuriously affected by an order setting aside the sale under which he acquired the title which he afterwards parted with.—Berry v. Innes, 35 Mich., 189. Upon the question of notice to Tompkins, when it appeared that third parties had acquired rights in the premises under the sale sought to be set aside, no further proceedings should have been taken until they had notice and an opportunity to be heard.—Crawford v. Tuller, 35 Mich., 57. The order setting aside the sale and ordering a new one must be reversed, with costs.
The other Justices concurred. | [
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] |
Cooley, Ch. J:
The action in the court below was replevin, brought for the recovery of property described in the writ as “one span of horses — one brown named Charley, and one bay named Dave — of the value of two hundred dollars; one lumber wagon of the value of fifty dollars, two pairs of logging trucks of the value of one hundred dollars, seven pairs of logging bobs of the value of one hundred and five dollars, and two sets of road bobs of the value of twenty-five dollars.” The plaintiff showed that he ’bought this property of one Andrew Moody. The defense was, that in Moody’s hands the property was subject to a mortgage given by him to Raynsford, covering real as well as personal property, and given for the purchase price of the whole; that a bill in equity had been filed in the Kent circuit court to foreclose this mortgage, making this plaintiff, among others, defendant, aud that in that suit Austin had been appointed receiver and had taken the property in pursuance of his order of appointment. The existence of this mortgage and of the suit in equity upon it were not disputed, and it was shown that the mortgage was duly filed as a mortgage of chattels and recorded as a mortgage of realty. The prin ■cipal contest appears to have been over the question whether the property was so described in the mortgage as to make that instrument constructive notice to a purchaser, though there appears to have been a claim also that some of the property replevied was not embraced in the mortgage at all. 'The following is the description in the mortgage: “All the following described real estate and personal property, to-wit: the northwest quarter of the southwest quarter, and the •■south half of the southwest quarter of section seven (7), and the north half of the northwest quarter of section eighteen (18), all in town ten (10) north, in range ten (10) west, in the county of Kent, state of Michigan; and also the northeast quarter of the southwest quarter of section six (6), in town and range aforesaid, consisting in all of and comprising two hundred and forty acres of land; also the steam saw-mill situated on said land, and the machinery and appurtenances thereto belonging or in any wise appertaining; also the following described property: five horses, one shingle •shed, one yoke of oxen (white or nearly white); one lumber wagon, one pair of trucks, two sets of harness, twelve sets of bob-sleighs, and all tools, chains, and implements of ■every kind used in and about the said mill; also all the pine timber on the northeast quarter of the southwest quarter of section seven (7), in said town ten (10), range ten (10), aforesaid, being the same property this day sold and ■conveyed by said Kaynsford to said Moody, and this mortgage and notes herein described being given to secure the •■unpaid purchase .money, together with the tenements, her■editaments and appurtenances thereunto now or hereafter ■belonging or in any wise appertaining or thereupon situated.”
In the order appointing a receiver, the property was "referred to merely as “the real and personal property and estate mentioned and described in the mortgage set up and ■described in the bill of complaint herein.” The following, among other instructions, were given to the jury: “The "court instructs you that if the property referred to in the ■mortgage was such that there was not .sufficient description of the property, then it would not operate as a constructive notice to an innocent purchaser.
“The court further instructs you that if you find from the evidence before you that there was such a description as that a person looking at the mortgage, and then making inquiries indicated by the mortgage, could reasonably ascertain whether this identical property was there, that would be a sufficient description of the property.”
Both these instructions appear to assume that the mortgage might have been sufficient to enable the mortgagee to hold the property as against the mortgagor, and yet not sufficient as against the 'plaintiff, who had purchased from the mortgagor. In this assumption the judge must have overlooked the fact that the point was necessarily involved in a suit to foreclose the mortgage against this plaintiff, and thair the order appointing a receiver was, if not a final, at leash an interlocutory adjudication against this very claim. The-suit in replevin, by which French seeks to try at law the-same question which the bill in equity necessarily requires-him to meet, is really in the nature of an appeal in a collateral proceeding from the order appointing a receiver, and if the judge is correct in his rulings, and French is enabled thereby to sustain his claim that the mortgage does not affect him, the court of chancery is in effect ousted of its: jurisdiction before decree has been reached. But manifestly this is erroneous.
The question the judge should have submitted to the-jury was, whether the property replevied, or any part thereof, was the same property mortgaged to Baynsford by Moody;-, if it was, the suit as to that property must fail, and French-must make his defense in the suit in equity. The questions-of the sufficiency of the description to affect a purchaser-with only constructive notice, and whether French when he-purchased had any actual notice, were questions to be raised in the first suit, and not by attacking the proceedings in that suit through an action at law. The same question cannot be tried in both suits; much less can a party re move it from one court to another in this collateral way. The court of equity has cognizance of it now, and there it must remain until regularly disposed of, by decree or otherwise.
As this view renders a new trial essential, we need not comment upon the error of the judge in submitting to the jury as a question of fact the sufficiency of the description in the mortgage. The case was probably tried before the decision of this court in Willey v. Snyder, 34 Mich., 60, was reported. The mortgage was not void on its face for indefiniteness; if it were so, it might be questionable whether the- property is sufficiently described in the writ; for the description there, as to some of it, is no more particular than in the mortgage.—See Stevens v. Osman, 1 Mich., 92; Farwell v. Fox, 18 Mich., 166. But it is sufficient to say here that the question of the validity of the mortgage as a lien on the property intended by it in the hands of French, belonged to the court of chancery. In the suit at law French must recover, if at -all, by establishing the fact that the property described in the writ was not property which Moody bought of Eaynsford and. mortgaged back for the purchase price.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Marston, J:
Corbitt brought an action against Finn upon a judgment recovered in the Kent circuit court against Finn and in favor of Levi Husband, for the damages he, Husband, had sustained by reason of certain trespass upon the rights and property of said Husband. He also set forth in his declaration that before the rendition of said judgment, the plaintiff therein had sold and assigned “his right of action and claim for recovery of damages against the said defendant for said trespass” and the judgment that was afterwards rendered therein, to the plaintiff in this suit.
The defendant pleaded the general issue and gave notice of set-off.
Upon the trial plaintiff introduced in evidence the rec ord of said judgment and also an assignment as set forth in the. declaration. The plaintiff also gave evidence showing notice to defendant of the assignment of said judgment, two or three days after the rendition thereof, and rested.
The defendant then introduced evidence tending to show that both before and after the rendition .of said judgment he had and held claims against .the plaintiff therein which would have been proper matters of set-off against said judgment.
The court instructed the jury in case they should find “that the cause of action was assigned to Mr. Corbitt for value received, before the rendition of the judgment, if you find at the time the judgment was rendered it was the property of Mr. Corbitt, then the court instructs you there was no set off.”
The position taken by counsel for defendant in error is, that the action being trespass, no set off was then admissible, and that so soon as the judgment was rendered, it was his, defendant in error’s, property, so that “there was never one moment’s time that it was the subject matter of set-off while owned by Husband.”
This court has heretofore held that torts for taking and converting personal property or for injury to one’s estate, and generally all such rights of action for tort as would survive to the personal representatives, might be assigned so as to pass an interest to the assignee which could be enforced in a court of law.—Final v. Backus, 18 Mich., 231. It was also recognized in the same case as a 'general rule, that the right of action for a tort is not the subject of assignment. The action brought by Husband against Finn, and which he afterwards assigned to Corbitt, was one of trespass. The record does not show the particulars or nature of the claim out of which his cause of action arose. It does not show that there was anything which could have been the subject of assignment.
Husband also assigned any judgment that he might ob taiu against Finn, but notice of this assignment was not given to Finn for some clays after the judgment was obtained. ■ Until such notice was actually given to Finn, any offset which he then had against the judgment creditor, could be used against the assignee in an action brought upon the judgment. — § 5796, Compiled Laws.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Campbell, J:
The relator, who is director of the district, asks a mandamus to compel the respondent, who is moderator, to-countersign an order in favor of the assessor of the school district, for district money in the hands of the town treasurer.
The statute is very clear that the disbursement of all school moneys shall be made by orders drawn on the assessor by the director and countersigned by the moderator. — O. L., gg 3623, 3612, 3609. It is equally clear that all moneys-belonging to the district in the town treasurer’s hands shall be paid to the assessor on warrants drawn by the director and countersigned by the moderator. — O. L., §§ 1,025,. 3609, 3623. These orders on the town treasurer are not negotiable, but are designed to transfer the moneys to the assessor officially, as the depositary or treasurer of the -district, who is to hold all such moneys until properly drawn out by warrant.—Fractional School District v. Mallary, 23 Mich. R., 111; Fox v. Shipman, 19 Mich. R., 218.
It is made the express duty of the director to “draw and sign warrants upon the township treasurer for all moneys-raised for district purposes, or apportioned to the district-by the township clerk, payable to the assessor of the district” fg 3623), “and present them to the moderator to be signed by him.” — Id.
It is made the duty of the moderator to countersign such warrants. — § 3609.
When moneys are in the hands of the town treasurer-belonging to the district, they are not subject to be applied to any district purpose except through the hands of the assessor, and the duty of suing to thus transfer into the ■custody of this officer if qualified, is laid on the director. As the assessor is the only legal district depositary, the duty of procuring this transfer within some reasonable time is not discretionary, but absolute, and the moderator is bound, under ordinary circumstances, to countersign all orders of the director for that purpose. The assessor’s bond is deposited with the moderator, who cannot, therefore, be ignorant as to his position, and the town .treasurer has no concern in the matter. It is impossible for the district to be legally damnified by the reception of its own money. In the case of disbursements out of the fund in'the assessor’s hands, the moderator may no doubt object to signing any unauthorized warrants.—Stockwell v. Town Board of White Lake, 22 Mich., 341. But it must be a very plain case of wrong, if any case is possible when there is a qualified assessor under good bonds, where the moderator can refuse to enable the district to obtain its own funds. And the town treasurer has no right to object.—McPharlin v. Mahoney, 30 Mich., 100.
It is objected that the assessor, and not the director, should appear as relator.
We are not prepared to say that the assessor would not be a competent relator. — § 3613, G. L. But under the statute, which makes it the duty of the director to present the warrant to the moderator for signature 3623), it is plain that the assessor is expected to receive the warrant in its completed form from the director, and that a warrant not countersigned is not to be delivered over. As the director is to be the active party in procuring the moderator’s signature, we think he may properly be a relator to obtain it by compulsion of law when refused. He is the proper custodian of the completed warrant for the purpose of delivery to the assessor.
The objection to the mandamus is upon the claim that no money is in the hands of the township treasurer belong ing to the district, and that there is no right, therefore, to any warrant.
The fact is admitted, that on the 4th of September, 1870, the town treasurer had in his hands one hundred and twenty dollars of district money. It is also admitted that the relator, the assessor and the moderator, are the persons named in the papers. Bespondent now occupies the double position of moderator and town treasurer. He claims that as- town treasurer, and before he is averred to have become moderator, he paid over the money to a former assessor named Hiram H. Bradford, on the 5th of September, 1876, and that Bradford disbursed it to pay a teacher who had a valid contract against the district, but it is not claimed this payment was under any warrant.
As an assessor can pay out no money lawfully without a warrant, such use of the money is quite foreign to this issue. The question here is, whether the payment to him by the treasurer was warranted. If not, then his use of it becomes unimportant. There is ho averment that he paid it out in such a way as would have been lawful. No payment not authorized by warrant would be a valid official payment so as to preclude the district from holding him responsible for moneys lawfully in his hands. And on the other hand, a town treasurer has no right to pay money to an assessor until he produces the warrant of the director and moderator. All district funds once in the hands of the town treasurer must in law be regarded as continuing in his official custody until lawfully drawn out. Payments made otherwise are made in his own wrong, and cannot diminish the fund for which he is responsible.—McCormick v. Bay City, 23 Mich., 457.
In this case the moderator is seeking to set up a defense which belongs properly to the treasurer. Still the exhaustion of the fund by legal payments might be a sufficient reason for not compelling a warrant to be issued which would be nugatory.
But there is neither suggestion nor pretext that any of the district fund of one hundred and twenty dollars was ever drawn out of the treasurer’s hands by warrant. We need not conjecture why no previous warrant was drawn in favor of the old assessor, or why he ceased to be assessor. There are certainly ways imaginable for an assessor to be lawfully removed, and reasons — as for example, his failure to give bond — why moneys might not have been placed in his hands by the director and moderator. We need not speculate on the reasons which may have led the treasurer to pay money which he had no right to pay. Such a payment was not a lawful payment as against the district, and affords no reason why he should not answer the call of a warrant, and furnishes no excuse to the moderator for not signing it. His double functions as moderator .and treasurer will not relieve him in one capacity from doing his duty in another.
No reason is shown why the mandamus should not be issued, and it is allowed as prayed.
The other Justices concurred. | [
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Marston, J:
Plaintiff in error, claiming to be owner of an undivided one-fourth leasehold interest, for ninety-nine years from and after Sept. 28, 1850, in the southwest quarter of section ten, township 47 north, of range 27 west, in 1875 brought an action of ejectment to recover .possession thereof.
Upon the trial, to maintain the action, he introduced in evidence:
First; A certified transcript of articles of incorporation, dated February 21, 1853, whereby the defendant became a body corporate;
Second, Original articles ofv) copartnership of the Marquette Iron Company;
Third, A copy of a patent, dated December 1, 1851, of the lands in question, from the United States to Isaiah Briggs.
He also introduced certified copies from the records of of the following instruments:
Fourth, A lease from Isaiah Briggs to Robt. J. Graveraet;
Fifth, An assignment of the same by Graveraet to the Marquette Iron Company; and,
Sixth, A deed from said Graveraet to Amos R. Harlow and Waterman A. Fisher, whereby said Graveraet did “recede and retire” from the partnership known as the Marquette Iron Company, and did thereby yield, quit-claim and forever release to said Fisher and Harlow aU rights, claims and titles, legal or equitable, to the property and effects, both real and personal, of said company, excepting certain property not affecting the lands in question.
The plaintiff farther introduced evidence tending to prove that he took possession of the property' in question in February, 1857, and erected a log house thereon, and remained in possession thereof about six weeks; that on returning to the premises in October following he found the defendant in possession, and that his right therein was disputed. It also appeared that Edward Clarke died in August, 1849. Having rested, the defendant’s counsel moved the court to strike out and exclude from the evidence introduced:
First, The lease from Briggs to Graveraet;
Second, The assignment thereof to the Marquette Iron Company;
Third, The deed from Graveraet to Harlow and Fisher of the partnership assets of the Marquette Iron Company; because
First, They were not admissible under the declaration;
Second, The assignment was void and could vest no title in the Marquette Iron Company, said company being a co-partnership and not a corporation; and
Third, If any interest was vested in the plaintiff it was as a partner; and it not appearing that the affairs of the partnership had been settled, plaintiff could not maintain ejectment thereon.
The motion was granted, and no other evidence having been introduced, the court directed the jury to return a verdict for the defendant, and ^o all of which, counsel for plaintiff excepted. A verdict and judgment having been rendered for the defendant, the plaintiff brings the case here for review upon writ of error.
The copartnership known as the Marquette Iron Company, when formed, was composed of Waterman A. Fisher, Edward Clarke, Amos E. Harlow and Kobert J. Graveraet. Clarke died in 1849, and Graveraet withdrew therefrom in August, 1852. While it appears from the .record that the Marquette Iron Company did carry on business for some time after its formation, it does not appear that any thing was done by it, under the Briggs lease, upon the lands in dispute. A number of questions growing out of the rela tions of the plaintiff with the Marquette Iron Company, similar to those raised in the court below, were elaborately discussed upon the argument. We do not, however, deem it necessary to consider them, as the view we take of this case upon a construction of the lease, is, we think, decisive of the present action.
Conceding, for the purposes of the present case, that the plaintiff has shown in himself an undivided one-fourth interest under the lease, and his right to maintain an action of ejectment therefor, which, to say the least, is very doubtful, let us turn to that instrument and ascertain from it, examined as a whole and in the light of the circumstances existing and known to the parties at the time of its execution, what rights the lessee acquired thereunder. A copy of the lease is given in the margin. It is not claimed that the rights then granted have since, either by construction of the parties, possession of the premises thereunder, or otherwise, been enlarged, although the plaintiff’s interest therein may have been increased by the death of Clarke and the deed from Graveraet.
It is unnecessary to attempt to define or even to discuss in this case all the rights which a lessee of wild lands would have in this state. We may, however, for the purposes of this case, consider the law as settled, giving to a lessee of lands for years the right to work an open mine upon the premises, unless restricted by the terms of his lease; and it is also equally well settled that he would not have the right to open a new mine, unless the right so to do was expressly granted. Such, it is said, are the general rights of lessees of lands in which there are minerals. — 1 Wash., 412'.
It is not claimed that there was an open mine upon the premises in dispute at the time the lease was executed, and while one of the chief objects in view, if not the only one, was to grant, on the one part, and acquire on the other; certain mineral rights, defendant insists that but a mere right to enter, search for, dig and raise minerals, with the right of ownership of the minerals thus raised was granted, and that for such a right ejectment will not lie. The plaintiff claims that the lease from Briggs to Graveraet was intended to and did lease an undivided one-half of the land itself for the period therein mentioned and for the purpose therein stated.
If; would not only be unjust but contrary to the well' settled rules of construction to dispose of this case upon any narrow or technical view, based upon any particular word or clause in the lease. When we examine the entire instrument as a whole, we think there is no difficulty in arriving at a correct conclusion, one that will be in entire accord with the intention of the parties making it, in harmony with the surrounding circumstances then existing, and consistent with each and all the various provisions of the instrument itself. And while a consideration of some particular part, if standing alone, might point to a certain definite result, yet we must still recognize the fact that any such clause may be controlled by the connection in which it is used, or by other parts of the same instrument; and that the legal construction or conclusion arising from the entire instrument, may be entirely different from, or even contrary to, and at variance with, the conclusion which a part standing alone would seem to indicate.
The instrument at the outset purports to be a lease of the undivided one-half part of a certain description of land, and if it had gone no further, it is not at all likely that any question could have arisen thereon. This clause is, however, we “think, controlled and limited by what follows. It is not a lease of the lands, with the privilege of mining thereon, or together with the ore and minerals to be found upon said lands, nor are there any words contained therein, indicating that this first clause is to be in any way added to, extended, or enlarged by what follows, or that any additional right is intended to be conferred and added thereto. That other rights, rights which the law would not have implied, viz.: to open mines and work them for the lessee’s sole benefit, are granted, is clear, but they are not in the nature of additional rights and privileges, but are placed there to limit and define the nature and extent of the clause immediately preceding and of which they form a part.
When the right is thus defined in the lease, it is no longer a lease of the land, to be used by the lessee for such purposes, within the limits allowed by law, as he might deem proper, but to be used for a particular specific purpose, so far as might be necessary to the successful accomplishment of that purpose, and for none other. A specific purpose having been thus set forth in the lease, excludes all others which the lessee might otherwise have been entitled to. This mining privilege might of course have been so expressed in the lease as to indicate clearly an intention to confer the same in addition to any and. all other rights which -the lessee, even without such a clause, would have had; but the language used in this instrument will not authorize any such enlarged construction. Had the lessee or his assignees entered into actual possession of the lands described in this lease, and upon examination ascertained that the mining interest thereon could not be made productive and profitable, and for that or any other reason have concluded not to engage in the business of mining thereon, could they have retained possession of the lands for any other purpose? Could they have taken any of the wood upon said lands and used it except in connection with the mining interests thereon? Could they have erected and maintained buildings thereon for any other purposes ? In a word, could they have enjoyed any of the rights and privileges usually enjoyed by lessees under a lease of lands, in case they did not engage in and carry on the business of mining thereon? And if they did engage in and carry on the business of mining thereon, were not the purposes for which such lands could be used confined to such as would make the mining interest on said lands productive and profitable?
They had no right to a use of the land for any purpose except as an incident to the mining right granted. While engaged in mining, the lessees could use so much of the land as would be necessary for that purpose, but they could use it for no other. In case the mining business proved unprofitable and was abandoned or not carried on, then they were not entitled to the possession or use of the land for any purpose. In other words, if plaintiff’s claim is cor rect, -that the lease was one of lands, with the right of mining in addition thereto, then the result would be that they had a lease of lands without any of the usual rights of incidents pertaining thereto; they had a grant of land so limited as to make the grant itself of no effect, while the additional or mining right gave them, as a necessary incident, certain rights in the land. The additional privilege of mining gave them all their rights in the land, while the lease of the land itself gave them no rights whatever therein. It is almost needless to say that we cannot adopt the theory of the plaintiff.
The interest or right leased ivas an undivided one, and gave the lessee the right to prospect upon any part of the lands and open and work such mines as he might deem proper, with the further right to appropriate to his sole use and benefit all ores and minerals procured by him. He had also the right to obtain -wood for said purposes, to erect and maintain buildings suitable and needful for the business. All these rights were expressly granted, and that the rights thus granted might be fully enjoyed, all necessary privileges in the land would pass as incident thereto.
What, then, is the extent of the lessee’s interest in the land itself under such a lease? This must be determined from the extent of his mining operations. If he opened one or more mines and erected buildings suitable and needed for the business, it would seem that for such purpose at least, and perhaps others in connection therewith, he would be entitled to the exclusive possession of portions of the soil, and that an undivided half interest would not be sufficient for such purpose. And if it appeared in this case that the lessee or his assignees had entered upon the land, opened mines, erected buildings and in other ways taken actual possession of some definite parcel or parcels of the land, from which they had been ousted, and had brought their action to recover possession thereof, a different question would have been presented. But until actual possession of some part of the land is taken, their right therein is floating and indefinite; it is a mere incorporeal right which is not capable of enforcement by an action of ejectment.—3 Blackstone, 206; Tyler on Eject., 41, and cases cited.
There are other provisions in this lease strongly corroborative of this view. The lessor expressly retains the use of all this land for agricultural purposes, “saving what is needed for mining purposes.” There is nothing in the case tending to show that either now or at the time this lease was executed, these lands were capable of or could be used for any purpose other than mining or agricultural purposes. Even if they were, the fact that the lessor retains, for the entire term, their use for agricultural purposes, which would necessarily exclude their use by the lessee for any purpose except mining, shows that the lessee’s interest in the land was a mere incidental one, dependent upon the mining right; and the clause relating to taxation favors the same view. It is, however, insisted by the plaintiff that the provisions in the lease by which the lessor agrees not to sell, assign, or encumber “said undivided interest hereby leased,” unless the lessee or his assigns shall have the first refusal to purchase the same, or, “if said quarter-section be divided, then that said Graveraet, his heirs or assigns, shall have the first refusal to purchase said divided half,” and also giving Graveraet the right to have the land divided, are all inconsistent with any view other than the one taken by the plaintiff. We see nothing in these several provisions inconsistent with the view we have taken, and the nature and extent of the interest leased called for the insertion of .some such provisions ■ in the lease to prevent disputes thereafter. At the time this lease was executed it was undoubtedly supposed that the lands described therein were valuable for mining purposes, but whether mining thereon would prove a profitable investment or not, was something that could not then be determined. Even if rich in minerals, large sums of money must be expended in prospecting, opening mines and developing. its mineral resources. If it proved profitable the lessee would be anxious to have his tenure enlarged, and rather than have an incumbrance placed upon the property, they provided that the lessee should first have the privilege of purchasing.
The right leased was that of an undivided one-half. This would give the lessee the right to prospect over the entire lands and open and work as many mines as he might have thought proper. This right he could undoubtedly have assigned or conveyed to a copartnership or corporation, giving it the same right. But he could not, we think, have cut and carved it into several distinct and separate rights, to be held and operated by more than one person, company or corporation. It was, we think, a single right, and could not be subdivided, although it might be owned and operated by a single body composed of several individuals.—Caldwell v. Fulton, 31 Penn. St., 476. Now the right granted by the lease being an undivided one-half, a similar right remained in the lessor. He or his assignees or grantees could also open and work mines upon this same property. And it is highly probable that if mining upon the property proved profitable, a conflict might arise between two individuals, companies or corporations, each owning an undivided half, with the right in each to appropriate to its sole use and benefit all ores and minerals it might procure from said land, and that a division to prevent such a conflict would be necessary. It was but reasonable therefore, and a wise forethought, to provide for a division of their rights, or even for a division and sale of the lands, and that in case of a contemplated sale, encumbrance, or division by the lessor, that the lessee should have the first privilege of purchasing. Such provisions are not inconsistent with, and could not enlarge the previous provisions of the grant.
That a right such as the one here granted is not exclusive, and does not preclude the lessor from exercising or granting a like right to others, see Chetham v. Williamson, 4 East, 476; Stockbridge Co. v. Hudson Co., 107 Mass., 322; Union Petr. Co. v. Bliven Petr. Co., 72 Penn. St., 173.
Looking then at the apparent intention of the parties as-collected from the whole context of this lease, and at what was done under it, we are of opinion that the lessee acquired no such interest in the land as would enable him or his assignees to maintain an action of ejectment for any particular part thereof or interest therein, and that the court did not err in striking out and excluding from the evidence the lease and assignment thereof, and in instructing the jury to find a verdict for the defendant. TJpon the other questions we express no opinion.
The judgment must be affirmed, with costs, and the record remanded for further proceedings under the statute.
The other Justices concurred.
“Enow all men by these presents, that, whereas, I, Isaiah Briggs, of Marquette county, state of Michigan, have this day obtained a pre-emption to, and have paid the full consideration to the receiver of the land office at íáault Ste. Marie, for the quarter section of land lying in Marquette county and state of Michigan, known and described as the southwest quarter of section ten (10), in township forty-seven (47) north, of range twenty-seven (27) west, to which a full title will be perfected: Now, in consideration of five hundred dollars, to me paid by Robert J. Graveraet, of Marquette county and state aforesaid, receipt whereof is hereby confessed, I do hereby let and lease to said Robert J. Graveraet, his heirs or assigns, the equal undivided one-half part of said southwest quarter of said section ten (10), in said township and range, for the full end and term of ninety-nine years from and after the date of these presents, fully to be complete and ended, for all the purposes of mining of iron ore and other minerals, and for all the business of said mining, obtaining ore, roasting the same, obtaining wood for said purposes, erecting and maintaining buildings suitable and needed for said business and calling, and for all purposes of making the mining interest on said land productive and profitable, and granting to said party the right to appropriate to his own sole use and benefit all ores and minerals procured from said land during the term of said lease; and further, I hereby agree and bind myself not to sell, assign, or encumber said undivided interest hereby leased, unless said Graveraet, his heirs or assigns, shall have the first refusal to purchase said undivided one-half, or if said-quarter section be divided, then that said Graveraet, his heirs or assigns, shall have the first refusal to purchase said divided half, on terms to he agreed on between the said parties or their representatives; and said Graveraet shall, on notice to said Briggs, have the right to have said land so divided, o-r to purchase the same as undivided at any time within this lease, by consent of said Briggs; and in case said parties cannot agree'to a division, the price and terms of purchase, then each party shall select one disinterested person, and these two appraisers select a third who shall decide as to a division or purchase, or both; and the award of such appraisers shall hind the respective parties. It is, however, expressly understood that said Briggs retains the use of this land until sold to said Graveraet for agricultural purposes, saving what is needed for mining purposes as .above written; and for a description to said quarter section it is known and described as “fractional quarter section;” and further, this lease is only operative after a confirmation or said pre-emption claim, and said Graveraet is to pay one-third of all taxes to he laid on said fractional quarter section during the term of said lease. This lease hinds, the heirs, administrators, executors and assigns of the respective; parties.
“Signed and sealed at Sault Ste.Marie this twenty-eighth day of September, A. D. 1850.” | [
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Graves, J:
For some years before August 26, 1871, and thereafter until June 27, 1872, complainant was the wife of the defendant Jerome B= Waldo, and as husband and wife they lived together at Williamston, in Ingham county, up to the date first mentioned. At or just previous to that time she became satisfied that he was guilty of criminal intercourse with a woman living a few rods distant, and she hence withdrew from him at that date with the fixed purpose of not living or coliabiting with him longer, and which purpose she has kept; and with the further purpose of obtaining, as the bill states, a separate maintenance.
Desiring legal advice and assistance, she came to this city and consulted with and employed Mr. Wiley, a lawyer then in practice here. She seems tq have placed her inter ests entirely in liis hands, and to have empowered him, so far as she was capable, to take such steps as he in his discretion might deem best, and she seems to have fully acquiesced in his doings as they occurred, and to have sanctioned the whole as though done by herself in person.’ Under his direction, and on her complaint therefor, a warrant was issued by a magistrate against Waldo, then her husband, for the crime of adultery, and given to an officer for service. This was on Saturday, the 26th of August, and the officer, following Wiley’s directions, deferred service until the next -day, Sunday, in the evening, when, and about half-past ten, Waldo was arrested at the house of the woman before mentioned, under circumstances nearly or quite conclusive that he was then at least criminal. On the succeeding Tuesday, being the 29th of August, he appeared before the magistrate under arrest upon the warrant. The prosecuting attorney having consented that Wiléy, who had made a request therefor, should have control of the prosecution, the examination was by consent adjourned until the 4th of September, at four o’clock in the afternoon. On the forenoon of Monday, the 28th of August, and being the day succeeding the arrest, negotiations were begun between Wiley and Waldo on the basis of a pecuniary benefit from Waldo to complainant on the one hand, and a stoppage of the prosecution, on the other,* and during the interval between the amicable adjournment of the examination on the 29th of August and the 4th of September, to which the adjournment extended, the negotiations terminated in an agreement. Waldo paid Wiley one hundred dollars in cash, gave his note for four ¡hundred dollars more, which he paid subsequently, and paid as costs of the criminal proceedings twenty-six dollars and forty cents. He also gave Wiley, in trust for complainant, his bond, conditioned for the payment for her benefit of two hundred dollars every six months during her natural life, and with a stipulation to pay the round sum of five thousand dollars and all arrears of. interest, as a fixed gross amount in case of default on any half-yearly payment, and to secure performance ©f this bond Waldo, together with his brother James and wife, gave a mortgage on real estate. On the other hand, the criminal prosecution was stopped by Wiley’s direction, and was not resumed. Neither was any other instituted, and the offense was treated as a matter settled and barred.
During the entire transaction Wiley was allowed to guide, control and use the prosecution in the name of the people, without interference, to obtain the money and securities before mentioned, and they were given and taken as satisfaction for the offense imputed, the costs and charges of the magistrate and arresting officer, the individual charge made by Wiley, and to secure the stifling of the pending criminal prosecution.
Within two or three days, and on the fifth of September, complainant filed her bill against Waldo for a divorce from the bonds of matrimony, and the specific charge in the’ bill was an act of adultery alleged to have been committed on the evening of the arrest, and which was considered provable by the arresting officer and a person who attended him. No claim for any allowance was preferred, and no allowance was made.
Waldo offered no defense, and on June 27th, 1872, divorce was granted. A few days later, and in the next month, he married the worn an implicated in the previous charges against him, and a little more than two years thereafter complainant married her present husband, Mr. Lyon.
Waldo proceeded to make the stipulated, half-yearly payments, and continued doing so up to the payment due August 29, 1874, but after paying that, he refused paying further.
Wiley died intestate in April, 1874, and complainant filed the present bill in her own name to foreclose the mortgage and claimed the gross'sum of five thousand dollars and back interest.
The defendant, her former husband,, answered and urged several grounds of defense, the most material being that the mortgage was contaminated by- unlawful consideration and hence was not enforceable.
After examination the circuit judge became convinced that the recourse to the criminal law on the part of complainant was not in good faith; that the prosecution was moved and used for the purpose of private gain and advantage and not to vindicate public justice, and that in fact-the giving of the mortgage was brought ábout directly by the influence of the proceeding, and that the giving up of the prosecution was matter of consideration; but he came to the conclusion after all, that the security was not made thereby utterly uncollectible, but only voidable, and that Waldo’s subsequent acts of payment confirmed it and rendered it enforceable; and acting .in this view he allowed a decree of foreclosure, and Waldo appealed.
Now there is no room for controversy about the facts. There is no evidence to show that the securities were given or received as a provision for complainant’s maintenance as a married woman apart from her husband. On the contrary, the proof is strong that the arrangement contemplated a speedy dissolution of the marriage • at complainant’s instance. And again, there is no evidence to show that the existence of the securities had any influence upon the matter of alimony or allowance in complainant’s suit for divorce. That the criminal proceeding was made use of solely to drive the accused to make over or secure to the accuser and her agent something like an estimated one-third of his property, and that the mortgage originated in the execution of this plan and as part of its fruit, and that a portion at least of its consideration was the suppression of the prosecution, are facts substantially admitted, and in such a state of facts I cannot concur with the circuit judge. It is of no consequence whether what was obtained did or did not exceed the claims of moral justice. The question concerns the means employed to get what was obtained. The law wisely and sternly disallows the use of measures which dishonor it and falsify its processes and pervert the duty of its ministers to reach ends which in the abstract may be excellent, and the nature of the thing and the principle on which the court acts in entertaining such objections in cases to enforce contracts are inconsistent with the notion that acts of part performance can obviate the difficulty or reverse the duty of the court.
Where a contract is tainted with illegal consideration it is rendered incapable of confirmation by acts of part performance. Whatever is done towards carrying it out is regarded as done under the obligation of honor, and not under the sanction or obligation of law, and what remains stands on the same basis. The performance of it may be required by the sentiment of honor, but the law does not attach and bind the party to complete the unlawful compact. The principle is recognized in Snyder v. Willey, 33 Mich., 483, and in other cases too numerous for citation. Cole v. Gibson, 1 Ves. Sr., 503, is one among the earlier authorities.
The defense of illegality is a peculiar one and in its nature differs from most others.- The objection is “rather that of the public, speaking through the court, than of the defendant as a party to the contract. The law disallows all proceedings in respect of illegal contracts, not from any consideration of the moral position and rights of the parties, but upon grounds of public policy.” — Fry on Sp. Per., ch. 9, § 309. However dishonorable, however culpable- the defendant may be, the result is the same, and however numerous may have been the acts of part execution, they cannot cleanse the contract of the impurity of its origin and cause it to be the duty of a court of justice to respect and enforce it.
The learned counsel for complainant makes no question concerning the general rule. He argues, however, that the case is not within it; that in confining the initiation of a criminal prosecution to the injured spouse, the legislature clearly indicated their opinion that the offense of adultery partakes more of the character of a private than of a public Wrong, and is not properly subject to the same regulations or the same consideration as other offenses, and that public policy requires that private compromises of such prosecutions should be permitted to the accuser and accused in case there is no oppression or moral unfairness, and that testing the present transaction by this rule, thq objection to the enforceability of the mortgage is not sustained. We cannot yield to this argument. It contains assumptions and implications which are hardly warranted. The legislature must be taken to have been cognizant of the reasonable and long well settled doctrine in law and equity on this subject; and had it been designed to exclude its application in cases of this sort it is reasonable to suppose the will to do so would have been distinctly made known. This has not been done. So far from it, the actual' facts and incidents imply the •contrary. The mind of the legislature was particularly turned to the subject of authorizing private adjustments of matters criminally prosecuted, and they made specific provision for the settlement in that way of some kinds of public prosecutions, but not for public prosecutions for adultery. And their sense of the mischief which might arise from an unrestrained power to settle, even in the class of cases contemplated, is plainly shown by the conditions imposed. The settlement is required to hare the express sanction of • the •court.—§§ 7870, 7872, C. L.; Com. v. Dowdican’s Bail, 115 Mass., 133.
The implication is certainly somewhat strong against any purpose to tolerate private settlements of public prosecutions for adultery; at any rate to the extent of making their suppression by such means a valid consideration for securities made by the accused to the accuser.
When the legislature ■ included adultery among felonies, they were naturally observant of the offense in its domestic as well as other aspects, and were led to take pains to confine the right to put the criminal law in motion to the injured spouse. The final purpose was the good of society, and as that must be closely connected with the peace of families, it was considered that the latter ought not to be left at the mercy of outside informers, or that the injured party should be restrained or precluded from forbearing complaint. ■ If ■ the innocent spouse preferred to live ¡ on without calling- forth the energy of penal law and, making public family infelicities and impurities, and perhaps visiting innocent children and other relatives with affliction if not disgrace, it was deemed expedient and most for the general good that the public should riot be allowed to intervene.
The reason for limiting to the injured spouse the right to move the criminal law would seem to find its bounds in considerations of this sort, and we think it incapable of being so far extended as to imply a right to resort to public prosecution to compel a division of property. When the innocent party has resolved to forbear no further, and. has actually set the law in motion and the case is launched, the reason and policy of the provision, limiting the right of complaint would' seem to be satisfied, and the public right would appear to have attached. The construction contended for, instead of favoring family peace and forgiveness and forbearance, would tend to encourage persecutions and plots and schemes unfriendly to domestic concord. A new and unworthy inducement to prosecute would be held out, and that its influence in families and communities would in many ways be extremely pernicious, seems too plain to admit of controversy.
In what has been said concerning the invalidity of securities made to stifle a prosecution for adultery, there has been no purpose - to imply any opinion touching any penal liability of the party who prosecutes and assumes to compromise. No question of that sort is considered as involved.
Finally, in -view of the facts disclosed, I see no ground on which the- mortgage can be regarded as an enforceable security, and it ■ follows, therefore, that the decree below should be reversed, and the bill dismissed.
Campbell, J., concurred.
Cooley, Ch. J:
I should agree with Mr. Justice Graves that there could be no reasonable doubt that the mortgage in suit was obtained by means of the prosecution for adultery, but it does not necessarily follow that the prosecution was instituted for that purpose. The guilt of the defendant appears to have been unquestionable, and the criminal proceedings were certainly not colorable, and they were not conducted in a manner specially oppressive. The arrest, it is true, was made at an unusual hour, but the time seems to have been selected with a view to detecting the defendant flagrante delicto, and if not excusable, the choice of time was certainly not very censurable.
The point in which I disagree with the opinion just read is, in holding the security wholly void; and upon that I shall state my views very briefly. The complainant when she caused her husband to be arrested was fairly justifiable in refusing to live with him longer, and in demanding a reasonable separate maintenance. Had she filed her bill for divorce and maintenance, the courc would unquestionably have awarded both. Having this legal right, she might negotiate with the defendant respecting it, and unless fraud or duress was employed, the courts would not disturb their arrangements so far as respected the property. So much is unquestionable.
The husband entered into such negotiations, which resulted in the giving of the securities in suit, but he claims that these were extorted from him by duress. Duress is a good defense, if it is made in good faith and seasonably; but the misuse of legal process to obtain securities is to be regarded as a species of fraud.—Seiber v. Price, 26 Mich., 518; Gallaway v. Burr, 32 Mich., 332. And where a party relies upon it in equity as a ground for avoiding his security, he ought, as in other cases of frauds, to move promptly, and not sleep upon his rights. If he goes on and by his conduct assumes the contract to be in force until the position of the other party in respect to it has changed, he ought to be held to have affirmed it.—De Armand v. Phillips, Wal. Ch., 186.
Let us see, then, what was done by the parties respectively in this case after the securities were given. For two yea'rs, at least, the husband recognized the securities as valid, for he made two annual payments upon them. Meantime the complainant had proceeded to obtain a divorce from him. Belying upon the arrangement already made, she asked for and obtained no alimony. This was a very important change in her circumstances as regards her right to a maintenance from the husband, and if the husband allowed her to suppose he intended to recognize the validity of the securities, and only repudiated them after, in reliance upon this supposition, she had lost other rights, this was such a fraud upon her as deprives him of any consideration in equity. And it is a significant fact that we only hear of the repudiation of the securities after Mr. Wiley, who acted as trustee in taking them and who was cognizant of all the facts, has passed 'away, so that complainant cannot have the benefit his explanations.—See Campau v. Shaw, 15 Mich., 226.
I am therefore of opinion, on the facts shown, that defendant is not entitled to relief. I base my conclusion upon the delay, and the change in the condition and circumstances of the parties induced by or accompanying the acquiescence in the securities.
I cannot agree with complainant’s counsel that the injured wife is entitled of right to settle criminal prosecutions for the adultery of the husband. The power to do so would be susceptible of innumerable and enormous abuses, and would prove intolerable. But for the reason stated, I think the decree should be affirmed. | [
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] |
Graves, J:
Defendant in error sued in assumpsit for certain benefits claimed as his due from the company under their articles of association and by-laws.
The declaration contained three counts, to which the company demurred generally, and also on special grounds. The court overruled the demurrer, and gave final judgment against the company, the damages being assessed at two hundred and forty dollars and sixty cents. The company brought error.
The first count is open to objection for duplicity; it attempts to base a cause of action on one set of regulations for a monthly allowance, and a distinct cause of action on another set of regulations for a round sum, claimed to accrue to a retiring member of the company.
The actionable grounds of these claims are distinguishable and separate, and ought not to be united in the same count. But passing this objection, which is one of form only, the count appears to be subject to others, which are substantial.
The claim for allowance under section one of article six of the by-laws, on account of disability caused by injury, is not supported by any averment of a demand, or of any assumpsit by the company. No facts are stated on which the law might infer a liability in assumpsit. The allegation that the company became indebted to and promised to pay Phillips twenty-four dollars and twenty-six cents as a consequence of his withdrawal in January, 1875, as provided by the by-laws, is not a statement of a cause of action. There should be facts to explain in what way the withdrawal led to and involved the asserted consequence. How the by-laws might help to the liability cannot appear unless they are shown, with such other matters as would bring the state of' facts into legal order. In regard to the claim for two hundred dollars on account of the withdrawal, the count proceeds upon the theory that by the contract between the parties, as embodied in the article and by-laws, it was necessary as a condition precedent to any right to withdrawal money, that a certificate of Phillips’ medical attendant should be given to the board of trustees, and that the board should have at least reasonable opportunity to act upon the case. Whether the theory of the count, or the truth of the case, would require it to appear likewise, that in fact there was approving action by the board, is not necessary to be considered now.
It is sufficient to observe, that if .the count be taken as intending only that reasonable opportunity for the board to take action was a necessary preliminary, and certainly its scheme goes thus far, it is still defective in substance. No facts are set forth to show that opportunity was actually given to the'board to act upon the case, or that they neglected or refused to act.
The second count is clearly bad. It refers to certain supposed by-laws as entitling Phillips to claim two hundred dollars in a given contingency, and in case of certain steps taken by him. No cause of action is apparent here; facts are wanting to justify the conclusion. The by-laws relied on are not set out in any way, and some other matters which would be essential in connection with them are omitted. The court cannot say upon this statement that Phillips was in law entitled to any thing.
The only difference between this and the third count,is, that the latter alleges that on receiving the certificate of Phillips’ medical attendant, the board neglected and refused to take action. This count is also fatally defective. We cannot know what right the membership of Phillips, and his withdrawal as alleged, and the refusal of the board to act, gave him to claim two hundred dollars, or any other sum. We cannot take judicial notice of the supposed bylaws, nor can we assume that the ■ company agreed, through a by-law, or otherwise, that upon Phillips’ disablement and withdrawal he should receive two hundred dollars, or any other amount.—Company of Feltmakers v. Davis, 1 B. & P., 98; Plant v. Wormager, 5 Blackf., 236.
There are other defects in this declaration, but it is not necessary to refer to them.
The judgment must be reversed, and the cause remanded, that judgment may be entered for plaintiffs in error on the demurrer, with leave to defendant in error to amend under the rule of court. Plaintiffs in error will recover their costs of this court.
The other Justices concurred. | [
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Campbell, J:
Suit was brought aud recovery obtained on a policy of insurance alleged to have been in force at the time of the destruction of certain mill property of defendant in error in August, 1874.
There were several counts in the declaration, and among other things it is claimed the court erred in refusing to charge that there could be no recovery except under the first count, which was for a renewal of a policy which had expired on the 2d day of April, 1874, by its extension for one year, including the engines and boilers, which were not covered by the original policy.
We think that as the case was left to the jury, this instruction was in fact given, inasmuch as their attention was strictly confined to' questions depending entirely on the existence and validity of the renewal agreement. The important questions in the case arise out of other matters of more direct bearing on the merits.
Another objection is perhaps proper to be considered by itself, namely, the rulings concerning the testimony of the witness Hewitt, whose statements were in part ruled out originally, and in part, left to the jury to receive or reject, as relating to privileged communications between attorney and client.
After the fire, Mr. Hewitt was employed to prepare the proofs of loss, and seems to have had some other work to do in hunting up the documents and making inquiries. It is difficult from the record to determine, — supposing him to have been a professional adviser, — precisely what part of the transactions came within professional privilege. Hewitt and Beynolds were directly at variance concerning the existence of the relation at all, during some part of the occurrences. The court excluded some matters and received some matters during Hewitt’s examination. In the charge it was left to the jury to exclude his testimony of interviews entirely, if they were satisfied from the evidence before them that the conversations took place while Hewitt was Beynolds’ attorney.
We do not think it improper to leave to the jury the question of the existence of such a relation when disputed. The judge may determine upon the statements of a witness himself whether -he is competent or not; but it does not properly belong to a judge to decide upon the truth of matters which have come out during the examination of witnesses who conflict. And it has been held that on an intricate question of fact the jury may very properly be consulted.—1 Edw. Ph. Ev., 4. We understand this to be correct practice, and in many cases to be the only safe rule for determining such questions. It is laid down very plainly by Greenhaf.—1 Gr. Ev., §§ 49, 425.
But in the present case, we think too large a range of exclusion was left to the jury. They were left at liberty to exclude all the conversations between Beynolds and Hewitt during the period of the professional employment. There was room to claim that all of their intercourse was not privileged or confidential, and some testimony was given by the plaintiff himself, concerning what took place between-them, which might possibly be at least a partial waiver of the privilege as to the occasions referred to. At one of the principal meetings Mr. Case was present and took part in the deliberations, which could not, therefore, be regarded as within professional confidence. The judge undoubtedly did not intend to shut out any but confidential matters, and the failure to define them was probably inadvertent.
The principal controversy arose concerning the existence of the renewal of the policy. The evidence was uncontradicted that the insurance company hold it cancelled in May, 1874. It was returned to them by their orders, from the agent, Kirchhofer, who had countersigned it, but who had always kept it in his custody for Eeynolds. The contest, therefore, was as to whether this cancellation was operative or not as against Eeynolds. He claimed to have paid the premium, and to have received no notice of cancellation.
It is necessary, therefore, to know something of the surroundings of the case. Eeynolds owned a valuable mill property in Manchester, where Kirchhofer and he resided. He kept up a large insurance, amounting with that in dispute to about thirty thousand dollars. Of this, twenty •thousand dollars was obtained of companies for which Kirchhofer was agent. An arrangement existed between them whereby, in consideration of dealing with Kirchhofer, Eeynolds was to have an abatement of five per cent, out of the premiums, to be allowed out of Kirchhofer’s commissions. The latter also gave him time on his payments of premiums, and did not exact cash down.
There was evidence also of a further understanding that Kirchhofer should look after the insurances and see to their renewal; and that Eeynolds left the whole custody and care of the documents with him, and never informed himself except through Kirchhofer concerning the risks. He made no personal application to the insurers. All that was done was done by the agent.
There was a dispute of fact, whether Eeynolds made any specific payment of renewal premiums, and also whether he had notice of the cancellation. -There was also a question concerning the date of any payment, if made.
Upon the trial, in order to show a recognition by the company of a policy as existing after the cancellation, Eeynolds was allowed to introduce two lists of insurances in various companies certified to him by Kirchhofer, on the 29th of July, 1874. One of these was-a list of risks taken by Kirchhofer, purporting to include the policy now in controversy, as dated April 2, 1874, for three thousand dollars, at a premium of one hundred and thirty-five dollars. ' This list made up twenty thousand dollars insurance. The other list showed eight thousand dollars insurance in different, companies, taken by another agent in Tpsilanti. There was also a receipt dated July 30, 1874, for nine hundred dollars, being the aggregate of all the premiums in Kirchhofer’s list, including this policy. This included past payments and a. note and the five per cent, commission.
These papers were inadmissible. They had nothing to-do with any business pending between Reynolds and the" company. If he had any rights they grew out of a previous insurance. Kirchhofer did not represent the company,so far as we can perceive, so as to estop them by such admissions, and they were not made in the course of his ageny. The statements were his own statements as the agent of Reynolds, and for the information of Reynolds as his principal concerning his private agency business. It would be-improper to treat such papers as equivalent to a policy of insurance, or as in any sense a communication from the-insurance company. They were merely memoranda of the-transactions which Kirchhofer had carried on for Reynolds, as the receipt was his personal voucher for money paid him to reimburse him for advances. If untrue, it was a fraud on Reynolds, for which no one but Kirchhofer could be held responsible.
It is no part of an insurance agent’s duty to his company to look after the insurances of other persons, and all that he does in that way beyond what relates to insuring in his own company in the usual course of business, and for premiums paid, is outside of his official character. As an. insurance broker he represents the- insured, and 'not the-insurer. And inasmuch as there was evidence in this case, which was open to the jury (even if seriously disputed, which in many things it was not), tending to show thatKirchhofer did not exact payments for premiums when’ due, but kept a private account with Reynolds, who only paid him when called upon, — the effect of this upon various-questions in controversy is quite important.
If notice of cancellation was necessary, and if repayment. of .premium was necessary to complete it, as is usually the* case, it may be questionable how far such notice is required, when the agent of the company is also the only agent or person with whom the company has acted on behalf of the* insured. It is certainly not necessary to give notice to a. principal who deals through a broker who is notified, or to* repay money to any one but the broker who pays the premium. If the jury believed that the arrangements with* Kirchhofer were such that he gave a personal credit to Reynolds, and advanced or arranged the premiums out of his*, own moneys or credits with the company, then the restoration to him was a sufficient repayment. And his subsequent collection from Reynolds of money on which there-was no existing insurance, and without any agreement to-apply it on future insurance, could not have the effect of reviving an insurance that the company had canceled. It might be a fraud against Reynolds, but it could not bind the company. To revive a canceled policy already rejected by the company, would require evidence of authority in the agent to rescind or recall the action of his principal, which could not be presumed, and would also require clear proof of an understanding that that specific act was intended to be done.
So far as we can determine from the record, there is an absence of proof of any such arrangement, as well as of any power to make it; and the charges resting- on the saving effect o,f payments made before July 29th are erroneous, unless they can be sustained by confining them to payments made specifically on this policy in advance of, or in the absence of any legal cancellation, and in the absence of such refunding as was required.
We have already said, that if Kirchhofer was acting in the capacity of an insurance broker for Reynolds, and keeping an account with him generally, not receiving specific premiums as they were due to and reported to the company, his knowledge of cancellation and the return or credit to him by the company of the premium, would bind Reynolds. As it was Kirchhofer’s duty to notify persons insured, and to deal with them in cases of cancellation, the failure to do so was a breach of duty; but if he was himself the party to receive as well as to give notice, the company was exonerated when dealing with him as the agent of the insured, as it would have been in dealing with any other agent of that person. Reynolds, by employing him in this double and anomalous capacity, directly contributed to producing the complication. The whole arrangement whereby Kirchhofer procured the insurances by extra inducements to Reynolds in the way of sharing the commissions on premiums, had a tendency to lessen his vigilance in guarding the company’s interests, and taking doubtful risks, and the credit arrangements were in the same direction. It is not presumable that either of these elements were within the scope of any authority granted by the company, and they indicate very clearly an agency from Reynolds.
A question arose concerning actual notice and acquiescence in the cancellation, which became very material in one view of the case. An agent named Chandler testified to a conversation which, if believed, showed this beyond dispute. Reynolds denied it. Kirchhofer’s testimony corroborated Chandler’s. The court, when requested, refused to charge, .that if the renewal was canceled, and if a conversation was held in substance as testified to by Chandler, the plaintiff -could not recover. No equivalent charge was made, and the assumption seems to have been, that without a return of .the premium, neither notice of cancellation nor personal ■acquiescence in it without conditions would avail.
We can -see no sufficient reason for this refusal. The question does not come within the mischief of the decisions which hold it objectionable to ask for an instruction putting the whole case on the -credit .given by a jury to a single witness. This conversation was a specific and vital fact in itself, and quite distinct from many things testified to by -Chandler. It did not depend on his testimony alone, and .was not so rested by the request to charge. It was a proper request, unless incorrect in law. But the conversation, if accepted, showed that Reynolds did not pretend to have any rights under the renewal which had been cancelled, and made no claim that he paid any premium, and claimed no reimbursement. It was entirely inconsisteht with any right or claim of right. It also tended to show a different renewal from that declared on.
We think, therefore, that the case was not presented to the jury as plaintiff in error had a right to have it laid before them.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Campbell, J:
This is a certiorari to review proceedings condemning lands for a railway. The proceedings were had in the probate court for Ingham county, under a petition presented on '.the 8th day of November, 1876. The commissioners met .and acted on the 11th of November, no one being present representing the plaintiff, and awarded him one dollar for a strip of land one hundred feet wide, extending across a quarter section of land. The affidavit for certiorari shows facts which, if true, indicate that the proceedings were intentionally concealed from the resident agent of the land •owner.
The statute requires that if the company has not been •able to acquire title the reason of the inability must be set out in the petition to the probate court, which must also ■■show the residence of the parties interested, if known or ascertainable with reasonable diligence. It provides that notice of the proposed presentation of the petition may be .served personally on an agent residing in this state, or on the non-resident owner of land personally, wherever he may be, or by publication in a newspaper for six weeks, and by sending to the land owner by mail, if known and non-resident, if his residence is known, a copy of the petition and notice of hearing, thirty days before the time of presentation. —L. 1873, pp. 511, 512.
The petition shows that the inability to get title arose from non-agreement upon terms. It is silent upon the point of the existence of a resident agent, but it mention® plaintiff’s residence as at Aurora, New York, where it wa® in fact.
Notice was mailed to plaintiff, directed to him at Batavia, Cayuga county, New York.
Without considering the other serious questions presented, this notice was not sent to the proper direction, and was therefore void. As the jurisdiction of the probate court could not attach without proof of a valid notice, the whole proceedings were void, and must be quashed, with costs.
The other Justices concurred. | [
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Graves, J:
Judge Ninde, Conrad Krapf and Asher A. Terry, having been appointed under ch. 158, G. L., commissioners on claims' against the estate of Louis R. Buchoz, deceased, Joseph Pray presented a contingent claim he held against the estate, together with his proof thereof.
February 25th, 1876, the commissioners made their report to the probate court and therein set down the presentation of the contingent claim by Pray and that it was disallowed. The report neither contained nor was technically accompanied by the proof made on the claim. At the same time, however, a full and perfect report was prepared on the subject and filed in the probate court on the 29th of March; but this was only signed by Judge Ninde, the other commissioners not joining in it. On the day this last paper was filed, Pray entered in the court of probate a claim of appeal from the decision of the commissioners disallowing his contingent claim, and on account of the failure to state in the report the proof adduced before them on such claim.
The circuit judge proceeded to hear the matter without a jury, and at length made a special finding and reversed the determination of the commissioners and awarded a conditional judgment in Pray’s favor in dollars and cents.
The administrator then brought error and the return to the writ contains, with the other proceedings, a bill of exceptions, and also exceptions taken to the law findings. An examination of the statutes and the record compels an opinion that the proceedings for the most part have been taken and carried on under a misconception of the purpose and effect of the provisions which relate to the subject.
First, The failure of the commissioners to state in their joint report to the probate court the proof adduced upon the claim, if of any special importance after the separate report of Judge Ninde, was not, as a consequence of its intrinsic nature, the subject of appeal to the circuit court.
The duty to report the proof is not judicial, but ministerial, and its omission cannot be remedied, rectified or redressed by appeal. Its observance must be enforced by warrant (§ 5200, O. L.), or by mandamus, or attachment, or the proof must be supplied, if necessary, in some special way. The judge of probate, on entertaining the claim of appeal, refused to notice this ground, but the circuit judge seems to have considered it as before him.
Second, The right of appeal from claim commissioners to the circuit court is given and governed by ch. 158, G. L., and not by ch. 177, which contains provisions about appeals from certain rulings and decisions of the- judge of probate.
And as the question is not only involved, but expressly made, it is necessary to see whether ch. 158 assumes to give any right of appeal from commissioners to the circuit court in case of contingent claims, not asserted or capable of being asserted as absolute. If it does not, it follows that the proceedings in the circuit court were unwarranted.
Now, the language of the chapter1, wherever it relates to demands to be adjudicated before the commissioners, is uniform and distinct. The power and duty of the commissioners over non-contingent claims are referred to in clear and unvaried terms.
Such-claims are always to be allowed or disallowed, wholly or in part. They are to be adjudicated upon, and an allowance, in the obvious sense of the statute,, is a determination that so much is actually owing, and not that there is -a possibility of future indebtedness. — §§ 4428, 4430, 4431, 4433, 4434, 4435, -4438, 4441, 4443, 4444, 4446, 4447, 4449, C. L.
The right of appeal is not extended beyond cases in which the commissioners are required to allow or disallow. On the contrary, it is strictly confined to such cases. — §§ 4439, 4440, 4441, 4443, 4444, 4446, 4447, 4449, C. L.
When we leave the provisions concerning absolute claims,. and which are subject to adjudication, and pass to- the procedure in regard to claims remaining contingent, we notice .at once a very natural distinction.
The language is no longer that the commissioners shall allow or disallow. Such action is felt to be utterly inappropriate. No power to adjudicate is given to the commissioners. They can neither allow nor disallow. The definition of the claim is express. It is one, in the language of the statute itself, “which cannot be proved as a debt before the commissioners, or allowed by them.’' — § 4464.
It may be presented with the proper proof, and in caso it is, the commissioners are required, not to allow or disallow it, wholly or in part, .but to state the presentation of the claim . and the proof relating to it, in their report to the probate court. — Id. The purpose to be subserved is pointed out. That tribunal, having the facts before it, may require the representatives to retain assets against the possi bility of their being needed upon the claim. — § 4465. But no hearing for allowance or disallowance is authorized until the claim comes up as absolute, and at that time a hearing is authorized and contemplated.
"Whether allowance or disallowance shall take place, cannot be settled at any earlier hearing.
The utter inappropriateness of any action by commissioners by way of allowing or disallowing possibilities, or by way of allowing claims against an estate contingently, is very clearly explained by Judge Ellsworth in Bacon v. Thorp, 27 Conn., 251.
The statute is consistent. It confers no power on commissioners to make allowance or disallowance in such cases, and gives no right of appeal against such action. The statement of disallowance in the report was void upon its face, and as the matter was not appealable, the court below assumed authority - without warrant.
The proceedings in the circuit court should be set aside, with costs, and the cause must be remanded to the probate court, to the end that such action may be there taken in regard to the claim as justice may require.
The other Justices concurred. | [
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] |
Cooley, Ch. J:
This case comes before us upon a finding of facts, of which- the following are the material portions:
“During the years 1874 and 1875 William Sanborn and •James M. Sanborn were engaged in lumbering business, as partners, under the firm name of Wm. Sanborn & Brother.
“During the years of 1874 and 1875 the .plaintiff rafted a quantity of pine logs and timber for said Sanborn & Bro., •delivering different rafts to different tugs for them.
“On the 21st day of August, 1875, the plaintiff left in “tow of the tug Wilcox, for said Sanborns, a raft which the ^plaintiff had rafted for them, and received their acceptance therefor, payable in sixty days, which, with interest included therein for sixty-three days, amounted to eight hundred and forty dollars and forty-seven cents, which the plaintiff procured to be discounted on endorsing the same.
“On the 5th day of October, 1875, the plaintiff left in tow of the tug Livingstone, for said Sanborns, a raft of logs which the plaintiff had rafted for them, and received their acceptance for such rafting for the sum of eleven hundred and ninety-six dollars and ninety-two cents, due in ninety days, which acceptance included interest for ninety-three days at ten per cent. These logs were rafted at the request of Sanborn Brothers.
“January 6th plaintiff received an order from Sanborn Brothers, dated September 20, 1875, directing the plaintiff to deliver all of their, Sanborn’s, logs and timber in the Au Sable river to Howard & Son, meaning John Howard and Henry Howard.
“During the seasons of 1874 and 1875 the plaintiff received within their boom limits in the Au Sable river, six hundred thousand feet of pine logs, being the same logs described in the petition filed at the commencement of proceedings, and a portion of the same lot of logs from which the rafts were made and acceptances given. These logs were transferred from the boom limits, so called, into the booms-of the plaintiff, or most of them, between the first of October, 1875, and the first of December, 1875. The boom limits referred to embrace all of the. Au Sable river above the plaintiff’s boom for a distance of thirty miles, and in which the plaintiff receives logs and runs them to their booms. Said logs were purchased by Howard & Son, September 20, 1875.
“No part of the two acceptances hereinbefore mentioned and described, or either of them, has been- paid, and there is now due thereon, exclusive of interest, the sum of two-thousand and thirty-seven dollars and thirty-nine cents, as set forth in the plaintiff’s petition.
“No demand has been made upon Howard & Son, nor upon any other person or persons, for any charges, either for running, sorting, booming, rafting, care and storage of said six hundred thousand feet of logs and timber, or any part or portion thereof.
“The usual custom of the plaintiff is to require payment for the running, sorting, booming, rafting, care and storage of logs and timber, on delivery of the same to the owner, but in consenting to take the acceptances of Sanborn & Brother as aforesaid, the same was at their special request,, and as an accommodation to them.
“Immediately upon receipt of an order from Meásrs. San-born & Brother to deliver the logs and timber to Messrs. Howard. & Son, they were notified (between the 10th and the 15th of January, 1876), by letter, that plaintiff held the said logs and timber for an account due from Messrs. Sanborn & Brother of two thousand and thirty-seven dollars and thirty-nine cents, and claimed a lien thereon for the-satisfaction of the same, but no legal proceedings were taken in the matter until the filing of the petition in this cause.”
Hpon these facts the circuit judge gave judgment against the lien. In this we think there was no error.
The taking of the acceptances, according to the well settled doctrine in this state, was not payment of the demand in the absence of evidence of an agreement that they should be received in payment.—Gardner v. Gorham, 1 Doug. Mich., 507; Hotchin v. Secor, 8 Mich., 494. There is no evidence of such an agreement here. It does-appear, however, that the acceptances taken were payable at a future day, and we understand from the finding that, they covered the whole amount then due. As no agreement to the contrary is shown, the owners of the logs must have had the right to demand and receive them at any time, subject to the payment only of any sum then due; for we cannot imply an understanding that the logs on hand should ■be retained as security for the payment at a future time of a sum not presently payable. The owners of the logs, therefore, must have had a right to remove them after the ••acceptances were given; and if so, there could have been •no lien, and a lien once lost could not be revived by the ■maturing of the acceptances. If once waived it is permanently lost.—Cowell v. Simpson, 16 Ves., 275; Hewison v. Guthrie, 2 Bing. N. C., 755. If there could be any ■question of this as between the boom company and the •original owners, there could be none as between the com,pany and a third person to whom the property is sold without notice of any claim for services in respect to logs previously delivered. If one by his purchase acquires an ¡immediate right to remove his property, he cannot lose it by any subsequent default of his vendor.
The Howards made their purchase September 20, 1875. <One of the acceptances was then out; the other was taken •before the boom company was notified of the purchase. While the boom company were justified in continuing to' •deliver to the Sanborns until they were informed that they •had parted with their interest, it does not follow that as .against purchasers they could retain a lien for services on logs actually delivered. Purchasers would have no implied notice of such a lien, and if informed that one had existed, but that the logs had been delivered on receiving negotiable paper for the amount, would have had a right to suppose the paper was received in payment.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Campbell, J:
This is a foreclosure case, iu which the chief defense was usury. The decree haying allowed this defense and fixed the debt equitably, the cause is appealed by the defendants upon some minor grounds.
It is first claimed that the court should not have decreed without a reference to compute the amount due; and that the decree should not have covered any thing which has fallen due since the suit began. These points are not well taken. The court should always pass for itself on the testimony, which in this case was all aimed at determining the amount of the mortgage debt. And while the statutes and the practice under them require a new inquiry into any installments accruing after decree (Brown v. Thompson, 29 Mich, R., 74), the practice has always prevailed of giving a decree for everything due at the time it is granted. In •this case the whole amount had become due, and no payments were pretended.
. We have found no testimony in the printed record concerning an item of taxes of fifty-seven dollars and thirty-four cents,^ included in the decree. But it appears that, there is such a voucher in the original record, and there can be no doubt of the propriety of allowing a party to-protect his mortgage interest against taxes. The objection to its allowance is not well taken.
As there was nothing to show that the land should be sold in parcels, and as it was originally described as one lot, there is no reason for disturbing the decree which allows a. sale as an entirety.
The decree must be affirmed, with costs-..
The other Justices- concurred. | [
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] |
Marston, J:
Plaintiff in error brought an action to recover the “undivided one-third part of the undivided one-half of that part of the Westbrook farm, so called, deeded by John J. Vanderburgh to Frederick H. Vanderburgh, * * * as her reasonable dower, as widow of her husband, William T. Westbrook, deceased.”
It appears from the finding of the court, that in July, 1835, Andrew Westbrook, the patentee, conveyed certain lands, of which the lands claimed form a part, to William. T. Westbrook, who in May, 1836, conveyed the same to Joseph P. Minnie and William Orvis, through whom defendant, who is and has been for many years in possession and occupation of the same, claims title adversely to all other persons; that in December, 1833, plaintiff was married to said William T. Westbrook; that they lived together as husband and wife until September, 1868, when he died, leaving plaintiff and several children surviving him; that prior to the death of William T. Westbrook, he made his last will, which was duly probated and allowed, by which he gave and bequeathed to his wife, the plaintiff, to be held by her during her natural life, the farm on which he then resided, with the appurtenances belonging thereto, and that the plaintiff has, under said will, continued to use, - occupy, and enjoy the provisions so made for her, and has never made an election waiving the provisions of the will. The court, from the facts found, as conclusions of law, held, that under the provisions of §§ 4286 and 4287 of the Compiled Laios, the plaintiff’s right to dower was barred, and judgment was rendered for defendant. Upon this conclusion error is alleged.
The only question raised is, does the acceptance by the widow, of the devise to her under the provisions of her husband’s will, bar her of dower in the real estate he sold and conveyed in his lifetime, after their marriage, and in the conveyance of which she did not join.
The statutes of this state provide, that “the widow of every deceased person shall be entitled to dower, or the use during her natural life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof.” — § 4269, Comp. L.
The territorial laws in force at the time the conveyance was made, required the wife to join with her husband in order to pass her estate iu the lands.— 2 Territorial Laws, § 4, p. 362. It is not shown or claimed in this case, that the plaintiff has done' any act by which her right to dower in the lands conveyed would be barred, unless her acceptance under the provisions of the will amounts to such bar under the sections of the statute referred to. Section 4286 is as follows: “If any lands be devised to a woman, or other provisions be made for her, in the will of her husband, she shall make her election whether she will take the lands so devised, or the provisions so made, or whether she will be endowed of the lands of her husband ; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.” Section 4287 requires guch election to be made within one year after the -death of her husband.
The question raised, therefore, depends upon the proper construction of § 4286, and in arriving at this construction, we would do well to examine it in connection with the other provisions of this chapter. Section 4269, already quoted, entitles the widow to dower in all lands whereof her husband was seized of an estate of inheritance, “at any time during the marriage,” unless lawfully barred thereof; while under the provisions of Section 4286, she is to make her election whether she will take under the provisions of the will, “or.whether she will be endowed of the lands of her husband.” The difference in the provisions of these two sections is noticeable at a glance. The term “lands of her husband” means lands of which he died seized, and cali mean nothing else. If he had previously conveyed them, they would not be his lands. The conveyance would be good as against him, and conveys all his interest therein, so that the term could have no application to lands previously conveyed by him, and in which he did not have an estate of inheritance at the time of his death. The first section entitles her to dower in all lands whereof her husband was seized of the proper estate at- any time during their marriage, unless lawfully barred thereof; but there is not such clear and comprehensive language in the latter section.
The supreme court of Pennsylvania, in construing a similar statute in a case like the present, said: “The truth is, no one can read these statutes, and those that have followed them of like import, without at once perceiving their operation was intended to be confined to lands an intestate had left to descend on his heirs, or a testator had given to his devisees. The simple absence of any direct expression indicative of a design to bring lands aliened within the purview of the enactments, ought, in itself, to be accepted as sufficiently proving no such design was entertained; for, surely, had the law-maker intended so important a change in the existing law, he would not have left it to a doubtful inference drawn from inconclusive reasoning.”—Borland v. Nichols, 12 Pa. St., 42.
It is also insisted in this case, that one object in view, by the provisions of the statute already referred to, and also, by § 4296, was to protect the heirs of the deceased from, damages for a breach of the covenants contained in his conveyance, and if this could not be done, then the provisions of the statute would be futile. It is a sufficient answer to this to say, that the statute does not, either in express terms, or by implication, attempt to protect the heirs from the effect of any such covenants, if they are liable thereon.
An argument has been based upon the fact that the property enjoyed by the plaintiff under the provisions of the will has been and is very valuable; that she had enjoyed it for some six years prior to the commencement of this suit, and that it would be unjust, therefore, to endow her in lands of which the defendant has for so long a period been seized and possessed. This, at first sight, seems plausible, but it is only so. It is but fair to presume that parties purchasing lands subject to dower, where the wife does not join in the conveyance, do not pay so much therefor as they would for a clear and unencumbered title, freo from all such objections. The wife may not survive her husband, and if she should not, they have gained just so much by the transaction. They took the chances, and the result, in such a case, would be a favorable one. If, however, she survives her husband, still they have had the same use of the land during his lifetime they would have had upon j>ayment of a full consideration, and they have also had the difference in amount between the consideration paid and what they would have paid had she joined in the conveyance. In other words, they, at the time of purchasing, concluded not to purchase her dower interest until after the death of her husband, with a possibility in their favor that they would obtain it, in case of her decease during her husband’s lifetime, without purchase. Under such circumstances there is nothing unjust or inequitable in requiring them, upon the happening of the event contemplated, to then purchase from, or deliver up to, the wife her dower interest.
Had the husband, at the time he made the conveyance, received this increased consideration on account of her joining therein, we have a right to assume that she would have derived some benefit from it, either in the purchase of other real estate in which she would have had a dower interest, or in some other way, as a recompense for parting with her interest in the land.
For these reasons we are of opinion that the conclusion of the court below was erroneous; that the judgment must be reversed, with costs of both courts, and a judgment rendered in this court upon the s]:>ecial finding for her interest, as claimed in the declaration.
This being an action of ejectment, the record will be remanded for further proceedings under the statute.
The other Justices concurred. | [
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] |
Cooley, Ch. J:
This action is brought to recover damages for the breach! of a contract whereby the defendant agreed to allow and permit the plaintiff to make, construct, and use a certain improvement in artificial gums and palates in his profession of dentistry. The breach of the contract as set up consists in the suing out a writ of injunction. The contract was entered into in 1869, and the injunction was sued out in 1870. The plea, filed in September, 1875, had appended to it a notice that defendant would prove in bar of the suit, a suit pending on the equity side of the circuit court of the-United States for the western district of Michigan.
The making of the contract, and the suing out of an injunction afterwards, are established by the finding of the court below. It is not shown, however, that any suit was actually commenced in equity by the service of subpoena or appearance, but it is claimed that the court afterwards ren dered a decree in the injunction suit, and it is said, that the court being one of general jurisdiction, it must be taken as a conclusive presumption of law that the court had jurisdiction. It is further urged that the decree would be-conclusive of the matters here in controversy, as it would necessarily cover them. It' is a sufficient answer to this argument that no such decree is set up or relied upon in the-pleadings, and it was not admissible in evidence. All we-have of this suit, therefore, is an injunction issued and served without subpcena. The suit that was pending when the plea was filed was commenced in February, 1875. The: pendency of that suit, if relied upon at all, should have been pleaded in abatement; it was not a bar to this suit. — I Chit. Pl., 454. It would seem, therefore, that the only question that the record presents is, whether the suing out, and service of the injunction constitutes a breach of the contract to allow the plaintiff to make use of the patented improvement.
Had the defendant in the injunction suit moved to set aside the writ on the ground that no subpcena was served with it, probably it would have been set aside for irregularity.—Peltier v. Peltier, Har. Ch., 19. Possibly he might-have been justified in disregarding such a service altogether, though this might depend on circumstances. In general a party is bound by an order for injunction of which he has-notice, though no writ is taken out. — High on Injunctions, § 852; Kerr on Injunctions, 638. If, however, an injunction were sued ou.t and served, without any service of subpoena or other evidence of bona fide purpose to proceed with the suit, we think a court would hesitate long before-imposing any punishment on one who disregarded it. But-it is not necessary to consider hypothetical eases; in this case the writ was obeyed, and whether the purpose in suing it out was bona fide or not, is not very imjjortant. The plaintiff had a right to treat it as a public and formal declaration on the part of the defendant not to abide by the contract recently made with him, and unless the necessary ¡steps were taken to bring him before the equity court in the, injunction suit, he was under no obligation to present himself there to get rid of the writ. There was as to him no Us pendens until he was served with process or voluntarily appeared, but there was by the injunction an impediment interposed to the enjoyment of the benefits of his contract. It does not lie with the defendant to say that he might have been relieved from the injunction in the chanpery suit, by producing and proving his contract; ■doubtless he might have done so, but to compel him to do ¡so, the party complainant in that court should have £aken the proper proceedings to bring him in.
Our judgment is, that the court below erred in its con- ' elusion, and that the plaintiff is entitled to maintain-this action. ■■ ,-
The judgment must be reversed, with costs, and a new trial ordered.
'The other Justices concurred. | [
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] |
Cooley, Ch. J:
In a suit brought by Eeed against the bank to recover for dividends due him on stocks, the bank sought to set off certain sums which he, when acting as president of the bank some years ago, had paid out or directed to be paid out to one Bennett under circumstances which it is claimed should render him personally liable. It was shown very clearly that while Reed acted as president he took general charge of the business, and that the cashier obeyed his directions. The first item in dispute was two hundred dollars drawn by Bennett, Dec. 16th, 1809. The cashier’s testimony was, that this was paid to Bennett by Reed out of banking hours when the witness was not present, and that when he came in and inquired about it, he told Reed the directors would not like to open an account with Bennett, as he was insolvent, but Reed told him to charge it to Bennett, and he, Reed, would see it paid; that Bennett was-to use the money in buying potatoes, and would send the money received therefor to the bank. The- next item was one of five hundred dollars which Reed allowed Bennett to draw in the cashier's absence, December 27th, 1869. In respect to this the cashier testified that when it was brought to his attention he- objected to it, but Reed directed him to charge it to Bennett, and said that he, Reed, would see it paid, and added that he was interested with Bennett in the profits of the potatoes. The cashier also gave evidence that Reed at various times requested him to say nothing about these transactions to the directors, and he would settle the matter. This statement of evidence is perhaps sufficient to admit of a proper understanding of the legal questions. The set off which was- claimed, embraced the two items mentioned, and a further sum of five hundred dollars which Bennett was allowed to draw a little- later.
Reed was sworn on his own behalf, and his attention being called to the sums drawn out by Bennett, he denied having told the cashier he was interested with Bennett, and also denied having agreed to see the amounts repaid. He was then asked this question: “ Did you ever regard yourself as liable?” and was allowed against objection, to reply: “I never did.” This question and answer were manifestly objectionable. They put before the jury no fact beyond the state of mind of the witness at the time, and that had no necessary bearing on the case. He might have promised to see the moneys repaid, and yet haye believed he was not liable to do so; or he might have so believed because he had never promised. The answer, therefore, gives us no information of any value whatever, and the- purpose could only have been to influence the jury with the witness’ opin-" ion respecting his legal liability; an opinion with which they had no concern.
The judge, in submitting the cause to the jury, was requested to instruct them that “if the jury find from the evidence that the plaintiff at the time he was president of the defendant, took and delivered or caused to be taken and delivered to Bennett, without the knowledge of the defendant, in the months of December, 1869, and January, 187.0, the three several sums- of money testified about in this cause, he, the plaintiff, knowing or having- good reason to know that the said Bennett was insolvent, then the defendant should be allowed the amount of the moneys as a set off.’’ This request was refused, and in stead thereof the judge-instructed the jury that “if the money paid on Bennett’s, check and telegram was on Bennett’s account, if the credit, was given to him originally, and not to Keed, then and in that case it cannot be made- a charge against Keed by reason or because of any interest which Keed may or may not have-had in the potato business with Bennett.’’
The instruction refused and that which was given must, be considered in the light of the- evidence which showed that the original transaction- with Bennett was one in which no one participated but Keed himself; that it was in effect a loan to a person supposed at the time to be irresponsible, without taking any security, and that it was charged to Bennett only on Keed’s- authority. We do not think such a charge would necessarily determine the transaction as a loan from the bank to. Bennett;, on the- contrary, we think that the bank, independent of any subsequent act of ratification or acquiescence, would have had a right to repudiate it as a transaction'with Bennett, and to insist on repayment ¡by Reed ; especially if it should appear that Reed was interested with Bennett in the business for which the money was ■obtained.
Taking the statement of the cashier as true, the act of Reed in allowing Bennett to draw moneys from the bank was wholly irregular and unwarranted. It was without the knowledge of the proper financial officer of the bank, — the ■cashier, — and without taking security. These facts, in connection with the supposed insolvency of Bennett, made it a gross breach of trust. It is not to be suggested that the directors had in law notice of the transaction, for it is shown that no one knew of it but the president himself. We therefore regard the case as within the decision in Austin v. Daniels, 4 Denio, 299, in which it was held that bank officers who abuse their powers must personally account to the bank for what it shall suffer thereby. See also, Commercial Bank v. Ten Eyck, 48 N. Y., 305. This is fundamental law, and only applies to officers of corporations the same rules which are applicable to the agents of individuals. A loan by the president under the circumstances indicated would be a fraud on the bank; and the president, if he persuaded the cashier not to make known the facts to the directors, could claim nothing because of the cashier’s knowledge; that officer’s silence might make him accessory to the fraud, but could not tend to excuse the principal.
We cannot undertake on this record to determine what effect should be given to the long silence of the bank directors after the Bennett account was entered on the books. As before stated, the question is one of ratification, and should be submitted to the jury as such.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Graves, J:
Taylor sued Young on the common counts, and joined a special count therewith.
Young demurred, and assigned for cause, that the. special count was in tort, and that there was consequently a misjoinder of causes of action. The court overruled the demurrer, and Young pleaded over to the merits.
The cause was then tried without a jury, and the judge made a general finding in favor of Taylor for .two hundred and ninety-four dollars, and judgment was entered upon it. No special findings were made. A point was made upon the alleged misjoinder of causes of action at the trial, and it is now insisted on. The special count which gives rise to the objection is certainly very inartistic and not to be commended. It does not, however, set up a cause of action in tort. On the contrary, we think it embodies the substance of a good count in assumpsit. The gist of it is, that the parties agreed to make a joint purchase of certain land, and that each should pay one-half of the price; that Young made the purchase for one thousand five hundred dollars, but informed Taylor that the price was two thousand dollars, and thereby induced him to pay one thousand dollars instead of seven hundred and fifty dollars as his share. The right to' the amount thus caused to be paid by Taylor over his share, with the interest, is then demanded, and apparently upon the principle that the tort imputed to Young might be waived by Taylor, and a right of action asserted against Young as upon a promise. The theory is not wrong. We cannot say therefore that there was a misjoinder of causes of action.
It is alleged for error that the judgment is not supported by the evidence. The record does not show that all the evidence is reported. The case contains, the general finding made by the judge, and a bill of exceptions, and we cannot say that the evidence returned afforded no basis for the finding. We cannot go behind that and .weigh the evidence.
The claim that there was no evidence that Taylor suffered damage, is without force for the reasons just stated. This disposes of the assigned errors.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Campbell, J:
Staley was sued for unpaid taxes, and the foundation of the claim was, that he had given and the town treasurer had received two worthless highway orders in part payment of his taxes on real and personal property, the amount of such orders being fifty dollars, and the amount paid in money eleven dollars and seventy-six cents. The town treasurer gave receipts for the taxes and returned them as paid, and was allowed the amount in his settlement with the township board, who assumed the enforcement of the deficiency and directed the supervisor to bring suit.
Staley received the orders and paid them over in good faith. The illegality was not suspected by either party. Judgment was rendered against Staley for the amount of the deficiency.
The only case provided for by statute wherein suit may be brought for unpaid taxes by the township is where taxes on personalty have been returned unpaid for want of property on which to levy.—C. L., § 1014. In such case the treasurer may sue in the name of the township. Taxes on real estate may be collected by distress on goods and chattels (§ 1003), but if not so collected the tax is returned unpaid and the land sold to make it.
The tax-roll is itself as complete and adequate as an execution on a judgment would be, if there are goods and chattels within the treasurer’s jurisdiction. It would be a foolish ceremony to sue for land taxes when the land itself can be sold to pay them. But where personal taxes are unpaid, the debtor may have property subject to execution not open to seizure and sale by the treasurer, and a suit is in such case proper and necessary to secure payment. The statutory provisions are based on plain policy, and preclude the idea of suit in any case not named.
The statutes are very liberal in providing for extensions where taxes are not paid, and the treasurer could, by proper application and showing that these were unpaid, have ob taincd farther time for collecting them or returning them •as unpaid. These orders were received by him on the 15th of December. His warrant did not ran out until the first of February, and might on a proper showing have been renewed or extended two months. — § 1004. It does not appear by the record when he made his return. But by pursuing the course which he adopted he precluded the possibility of any further action by the public to collect the taxes, and became personally chargeable for them himself. The taxes were therefore in law paid, and not unpaid, and any suit which is brought for the amount of the orders must be a private controversy between the treasurer and Staley, and not a township action. How far Staley is indebted to the treasurer, if at all, is not to be determined in this cause.
The judgment must, be reversed, and judgment entered for plaintiff in error, with costs of both courts.
The other Justices concurred. | [
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] |
Campbell, J:
The Keystone Iron Company sued below in replevin, to recover certain lumber, claimed to have been purchased from the Michigan Iron Conpany by parol contract, and delivered. The plaintiffs in error, wbo rvere defendants below, claim to hold the lumber by general assignment, executed by the Michigan Iron Company for the benefit of creditors.
The controversy, therefore, involves no questions which would not have arisen between the two companies had there been no assignment. The only contest on the merits is, whether, as against the Michigan Iron Company, possession could have been asserted by the plaintiff below, who was allowed by the rulings of the court and determined by the finding of the jury to prevail as so entitled.
Upon the facts as they must have been found by the jury, the Keystone Iron Company held a demand against the Michigan Iron Company for four thousand dollars, and required payment. The debtor company had a lot of iron ore received from the Keystone company, which was alleged to be unsatisfactory. A bargain was made verbally, to receive back this ore at an agreed price, which was done, and to pay the remainder in lumber. Having estimated what balance would be due, several piles of lumber were designated and set apart for that purpose, and it was agreed that if found excessive the Keystone company should pay for the excess. If deficient, the Michigan Iron Company was to-pay the deficiency. At first an average price of eleven dollars per thousand feet was agreed upon, which was after-wards changed to varying prices for the several qualities of common, dimension, and clear. The piles were designated on a diagram of the yard and subsequently marked, and were put in charge of a person who accepted the duty, by consent of the Michigan Iron Company, in whose general employment he was engaged at -the time.
The finding of the jury rests upon the unquestionable facts that there was a distinct verbal agreement that the-whole lumber in the specified piles should at once pass at agreed prices to the purchaser, who' was to become owner of all of it, that the piles were designated and set apart specifically, and that they were by mutual consent put in the-charge of a specified agent as the property of' the vendee.
We are very much at a loss to imagine what more could be done to complete the delivery and acceptance of property such as was here disposed of. It was only capa ble of constructive delivery, and it was not only distinctly set apart from all the rest of the lumber in the yard, but it was also put in charge of a keeper. Under these circumstances. the objections to the validity of the sale are entirely groundless, and require no serious consideration. The whole amount was sold absolutely, and to be absolutely paid for. Nothing was necessary to identify the property sold, and the intention to transfer it at once was manifest. The subsequent measurement and inspection were only necessary to ascertain the price, but were not necessary to pass the title, in the face of a contrary intent. The case falls within the principle of Adams Mining Company v. Senter, 26 Mich. R., 73, not only as to the question of title, but also upon another point suggested, that a person could not at the same time act as agent for two principals. In the present case, however, the agency of the keeper, concerning the lumber in controversy, was single throughout, and if the point had any force it would not apply here.
We may also remark that if the possession of the lumber was transferred to the purchaser, to be held by him until the future measurements and computations should be made, we are not aware of any principle which would make a possession any less valid, against the vendor himself, because the sale might be incomplete. Possession for purposes of future disposal under a bailment designed to secure the bailee payment out of the property or its proceeds, could hot be disturbed by the bailor. Possession given under any contract for contract purposes, is rightful as between the parties and those who have no superior rights.
While, therefore, we regard the instructions of the court as correctly holding the transactions in controversy to have made a valid sale of the lumber, we think there would have been no error had the sale been incomplete, where possession was given and received by the purchaser for the purpose of retaining the whole, and where the veudor was under no circumstances to receive back any part of the lumber. If it had been no more than a peculiar bailment, it was not a revocable bailment.
We have not referred specifically to the particular rulings complained of, because the court only authorized a finding for the plaintiff below upon the conditions which, in our judgment, made up a completed sale. The charges were much more favorable to the plaintiffs in error than they were entitled to.
Objections were made to the reception of certain testimony of the sayings and doings of various agents of the parties. They could not have affected the issue in- the case, and therefore we need not discuss them. We have not discovered any error in the rulings, but we regard them as not material.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Marston, J:
Counsel for the school district claim, and counsel for plaintiffs in error concede, that the order of March 7th, a copy of which, is sot forth in the finding of facts, is void. It is not pretended that the charts in question were purchased pursuant to instructions given by the district board, or that the board at any time after the purchase ratified it. It is claimed that section 3618 makes it the duty of the director to provide the necessary appendages for the schoolhouse, and keep the same in good condition and repair, and that under this section he could purchase the charts in question. We think that these charts can in no proper sense of the term be considered a necessary appendage within the meaning of this section. If they could be so considered, then it would be difficult to draw the line, and at all limit the power of the director in this direction. Nor do we think that there was any such necessity for the purchase of these charts as would bring the case within the principles of School District v. Snell, 24 Mich., 350, as claimed. The fact that these charts have been retained and occasionally placed in the school-house by the director, would not be such a ratification of an unauthorized and void contract as would entitle plaintiffs to recover. The director could not in this way ratify a contract which he was incapable of ' making in the first instance.—Township of Taymouth v. Koehler, 35 Mich., 22.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Campbell, J:
A decree was made at the last term, in the case of Bellair v. Wool and Prentis, which rested on a fraud charged to have been practiced by Wool on complainant, under circumstances indicating a gross abuse of confidence. We thereupon entered an order to show cause why he should not be ¡struck from the rolls.
Upon the return of this order, certain affidavits were presented, to which reference will be made directly, and a •question was suggested as to the correct practice in such a case as this, and a suggestion was made that a reference ought to be granted.
The charges made against Wool in the bill of complaint, which formed the only basis of action in that case, were .such as, if true, were enough to render him deserving of punishment. If no such suit had been brought, and a •complaint had been laid before us against him, a full hearing on evidence taken in some adequate way would have been necessary. But no method of examination adopted in ¡summary proceedings could have been so full or suitable as that furnished by the issues and hearing in an equity cause, where the witnesses are examined and cross-examined in such manner as the parties desire, and there is time for an exhaustive scrutiny. After such a hearing there is no very good reason why any further showing on the main facts should be had, unless under circumstances which would justify a rehearing. Accordingly, where the court has itself heard the cause and passed upon the facts, as is done in equity, an order to show cause is properly based on the decree, and might have been incorporated in the decree itself. This was the practice followed in Goodwin v. Gosnell, 2 Collyer’s Ch. R., 457, where reference is had to a similar practice adopted by Lord Rosslyn in an unreported case, Dungez v. Angove, found in the Registrar’s books. The law-courts act always in a summary way on such complaints, whether based on convictions or new charges, and the Queen’s< Bench, where the master of the crown office occupied a peculiar position, is the only law court which allowed the testimony to be taken out of court before him, though still acting itself on-that evidence. See 3 Chitty’s Gen. Pr., 38; Smith’s Case, 1 Br. & Bing., 522; 1 Tidd Pr., 88, and cases cited.
In the case of Goodwin v. Gosnell, there was evidence-of subsecpient good conduct and reparation, which induced the court to regard the respondent as not so guilty morally as to render it necessary to inflict the extreme punishment, which would otherwise have been ordered.
In the present case we were disposed to permit the respondent to make any showing he thought proper, leaving-its effect to be considered afterwards. The showing has'been confined to affidavits intended to support the credit of Mr. Minoek, one of the witnesses for the defense, and to-corroborate Wool in a few specific facts which he had sworn to, as well as to assail the reputation of the complainant, Mrs. Bellair, and her husband, who were main witnesses for complainant’s case. There is also a suggestion, purporting to be founded on statements of the judge who tried the cause below, indicating that his belief was based on discrediting the complainant’s testimony.
So far as this latter point is concerned, it had its due weight in our consideration of the appeal. The fact that a judge who has perhaps some better personal knowledge-of the witnesses than is to be presumed in an appellate-court, has believed one side rather than the other, must always weigh with the latter, who will not overcome the presumption of his correctness unless plainly convinced. But no appellate court has a right to abdicate its own duty of determining every case upon its own view of the facts. Every party has an absolute statutory right of appeal; and it would be wrong and unjustifiable to give the form of a remedy and yet hold that the decision below must govern the court of review.
In considering the grounds now laid before us, we have felt it proper to examine again into the record, as we feel no desire to take any step which we can fairly avoid which will lead to such serious consequences as the loss of professional standing.
It is one of the difficulties attending all tribunals passing upon facts, that the reasons for believing particular witnesses or particular testimony in preference to others cannot be defined. Every tribunal passing on facts must act on the belief which the testimony creates. That belief does not usually, as it certainly does not with us in this case, involve either the rejection or acceptance of all that is said by any particular witness. In our previous decision we abstained from any elaborate discussion of the conflicting facts, and contented ourselves with the conclusions which had impressed us all. We do not now intend to do much more; and we should have abstained entirely from any further statement, had it not been compelled by the peculiar nature of the new showing which we have no doubt rests on some misapprehension as to our former views.
A considerable and very respectable showing is presented in favor of the character of Mr. Minock, who, as notary public, took the acknowledgment of the deed which we held fraudulent. The present showing seems to be based on the assumption that we could not have reached our conclusion without regarding him as involved in the fraud.
Upon this it is sufficient to- say, that if he acted, as he claims to have acted, as a mere notary, having no special knowledge of the transaction in issue, it would have been very strange if his memory had retained a minute recollection of the surroundings; and his testimony, however honest, would deserve little consideration if opposed to the probabilities, and to facts about which there can be no great doubt. It is a very common thing for an honest witness to confuse his recollection of what he actually observed with what he has persuaded himself to have happened, from impressions and conclusions not really drawn from his own actual knowledge. Mr. Minock did not remember clearly what he did in regard to a separate acknowledgment, aside from his belief founded on his usual practice; and yet that was a fact concerning himself and about which he would have been likely to recall the truth, as he would as to things done by others. It would have been suspicious if he had paid extraordinary attention to a transaction which, if an honest one, would have presented no strange features; for very few notaries can be found who after so great a lapse of time could possibly recall the ordinary incidents of a conveyance. If he was unsuspicious, it would not be difficult for a shrewd person, intending a fraud, to handle papers in such a way as to escape detection.
"We have not regarded any of the testimony of the parties concerning the manner of the fraud as necessarily correct, because they were equally unsuspicious, But they could not be ignorant concerning the central fact of a fraud committed by some means, and by some decejjtion as to what was signed.
Affidavits of the bad character of Mrs. Bellair could not have been received to affect her credit if the affiants had been sworn upon the stand. If we regarded them as important, we should desire cross-examination, as well as some information concerning at least a part of these persons, before we should be justified in trusting to such an 'impeachment.
But the record shows that no attempt was made even by cross-examination to destroy the credit of the complainant and her husband as witnesses, and this was not accidental, but intentional. We are nevertheless satisfied that Mrs. Bellair, — as appears plainly from the record, — is not a person of unimpeachable character; and we have been mindful of this in scanning her story, which is in some respects, as we think, incorrect, but which in the one leading feature of the case we believe to be true.
The same circumstances which show her character show that she had intimate and improper relations with Wool, and was much under his influence; and while her statements require scrutiny, they are no. more open to criticism-on this account than Wool’s, who was in the same moral complications, and equally interested in the result.' An opening of the subject of her character would not have been one-sided.
Oliver Bellair has no interest whatever in the case; and while we are not impressed with the idea that his testimony should not be rigidly examined, he is nevertheless, so far as motives go, in a better position than any of the parties-themselves.
The minor surroundings, cannot be very decisive in determining the leading fact. Wool was charged with defrauding-Mrs. Bellair by procuring a deed to himself and Prentis of an interest of Oliver Bellair, in future enjoyment, of a valuable estate in Detroit, -when it was supposed the conveyance-was made to Mrs. Bellair. The interest was one-eighth part of a tract devised by Bellair’s mother. The complainant’s claim was, that her husband, from whom she had separated, had agreed to convey it to her for a small sum, in view of' her having custody of their child. Bellair swore to this-positively, as did Mrs. Bellair, and their testimony was corroborated by disinterested evidence. The substitution, or some other deception, in passing the deed, is supposed to have taken place at Minock’s office.
'Wool in answering did not undertake to set out when or how he made any bargain for Bellair’s interest for himself and Prentis, and gave no explanation of it. His testimony, which in the most-important portions was given under leading questions of his own counsel, is equally silent on this subject. The matter was one which was important, and which he was directly called on to explain; and he leaves it in obscurity, contenting himself with controverting complainant’s testimony.
The production of the original deed, which ivas not before us on the first hearing, and which we had supposed might- have been incorrectly printed, presents some very pe culiar appearances, which we cannot account for on any theory of defendant’s testimony. Mrs. Bellair’s name is written over an erasure not explained by any one, and there are singularities about both signatures. But this we do not regard as in itself very important. It appears that instead of talcing from Bellair a quit-claim or transfer of his interest in one-eighth of his mother’s estate, this deed, if genuine, conveyed or purported to convey by full present warranty a legal title in fee simple to the whole estate, and not to the future enjoyment of an undivided eighth part of it. It is very certain Bellair never agreed to make any such conveyance to any one; and it is equally clear that he never could have signed such a deed without having been deceived as to its contents. If, as some of the witnesses indicate, he examined a deed at Minock’s office, in such a way as to learn its contents, this could not have been the deed he examined. Neither Bellair nor his wife could possibly have supposed they were signing such a deed as the one before us, even if Wool had purchased the interest he claims. It is so manifest that this deed, on any possible theory, was a fraud, that the testimony upholding it is entitled to no credit; and the substitution of such a document for something else can hardly be doubted. It is not oven pretended that any bargain was ever made for such a conveyance, and the fraud is palpable. It is not made much worse, if at all, by the theory of the complainant’s bill.
We need not repeat the further reasons which have convinced us that the case was made out by the proofs. The law does not deny its protection against frauds to all but the virtuous, although it may require strong proof that they have been defrauded. We think the present case is fully proved.
An- order must be made removing respondent from his office of attorney.
The other Justices concurred. | [
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Graves, J:
Tbe company is a corporation, and McAlister, claiming; that it owed him a certain balance for services as superin -tendent, brought this suit to recover it. The alleged em- • ployment arose under a resolution of the directors, in these "terms: “Resolved that Mr. N. M. McAlister be appointed -superintendent of the Kalamazoo Novelty Manufacturing "Company -for the term of two years, provided he gives satisfaction to the 'company, at a salary of fifteen hundred 'dollars per annum.”
It appears also, that F. I. Kellogg, who was treasurer, 'Was constituted'“ consulting director,” “with whom the superantendent was to advise.” McAlister was allowed to recover 1:six hundred -and-eighty-seven dollars and fourteen cents, and '<the company ‘allege error.
To prove that there was a balance due him from the Company, and to establish its amount, he was allowed, after some preliminary testimony in regard to the time he was occupied in the company’s service, to introduce, against the objection of the company, the following paper:
-“ $622.21. Kalamazoo, May 29th, 1874.
“This is to certify that the Kalamazoo Novelty Manufacturing Company is indebted to N. M. McAlister, late superintendent of said company, in the sum of six hundred and twenty-two dollars and twenty-one cents for balance of salary. F. I. Kellogg,
“Treasurer Kalamazoo Novelty Company.”
No account of McAlister had been presented to the company or board of directors. He had asked for a settlement but there had been -no audit. He swore he could not fix the amount due him except by this paper. The instrument was introduced and received as an admission of the company of the fact of indebtedness and of the amount.
This we thin’k was error. It could not be entitled to reception in evidence as an admission of the corporation without its being made to appear that Kellogg had authority to make it as an act of the corporation.—Green’s Brice, 425 and note. There was no direct evidence of such authority. No by-law or resolution conveying the power was shown.
His position as consulting director implied no power to liquidate and fix tlie sum which the company should pay Mc-Alister or to state the amount fixed as a fact admitted by the company. Moreover, the paper in question, though made as McAlister insists on much deliberation, was neither drawn or received as performed by Kellogg in character of consulting director. On its face it professes expressly to have emanated from his authority as treasurer. That it was within his power and province in that capacity, cannot be assumed. The document is not a mere transcript or brief from the company’s books, and was not adduced as such. It imports that it was ascertained and determined that the company was in fact the debtor of McAlister to the specified amount, and it was put in evidence as an admission of the company to that effect. The general duty of the treasurer of a private corporation is to collect, receive, hold and disburse the funds, and unless specially empowered, his authority could not be supposed to extend so far as to allow him to settle and audit -disputed claims brought for salaries ' by other agents of -similar grade, and to issue written admissions of his determination binding on the corporation.
Such duties would regularly fall on the board of directors, and -the evidence in the ease goes to strengthen the inference that -such was the fact here. The resolution relied on by McAlister, tends to show that it was for the board to speak on the part of the company concerning his wages, and not the treasurer, and he testified that it was the board who called on him to quit.
In the progress of the trial the secretary’s book of records was produced, and some three pages of its contents were admitted in evidence.
On submitting the case -to the jury, the judge allowed them, against the objection of counsel for the corporation, to take with them to their room, the book in question, and directed them to look only on page forty-four. The record is not so framed a-s to enable u-s to say whether the court was warranted in-confining the jury to one of the three pages of the book which -were given in evidence, or not. That it is sometimes proper to allow documents in evidence to be taken to their room by the jury, is beyond question j but the practice is one which is exposed to much risk, and; it ought not to be allowed except in cases where the propriety of it is very obvious. And in general it should not be indulged when either party objects. Still cases are liable ta arise in which justice would require it, and where refusal to consent would be unreasonable, and on such occasion® the dissent ought not to prevail. It is hardly safe to attempt a definition of the proper rule by the mention of the exact documents or kinds of documents which should be suffered to go to the jury-room. In the present case the entire book was suffered to be taken, when but three pages were in evidence. The effect was to allow to be taken, and against objection, considerable matter which was not in evidence, and the only security consisted in the direction to the jury to confine their attention to one page.' This was error. It can scarcely be claimed that an instruction not to look at unproved matter should be taken as relieving its admission to the jury-room from error. The books speak of effectually sealing up parts of documents when part is submitted to investigation and part is withheld from it. But I am not aware that the practice has been applied to such cases as this, and am not prepared to say it ought to be.
The other questions cease to be of any importance in the case.
The judgment should be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Graves, J:
This cause was heard at the same time as the case of Grover v. Fox & Richfield, supra, p. 453, and it is a branch of the same general "controversy to which that case belongs.
It will not he necessary to repeat the facts given in the other suit.
The present hill was filed by Grover for relief against proceedings to foreclose the Parker mortgage, mentioned in the other case, by advertisement, and Holmes was joined as defendant on account of his connection as register of deeds with the proceedings. After hearing on pleadings and proofs, the. circuit court allowed Grover opportunity to redeem on ■certain specified terms, and both parties appealed.
It will be remembered that the mortgage was given by-Powell Grover and Elizabeth Grover, his wife, to Alvin E. Parker, October 19th, 1867, on the Grover farm in Homer, in the county of Calhoun, containing four hundred and forty acres, to secure payment of six thousand dollars of principal, in five years from October 3, 1867, with interest at ten per cent., payable semi-annually.
The mortgage further provided for the payment of an attorney’s fee of seventy-five dollars in case of foreclosure, and also that interest not paid when due should become principal and draw interest at the rate previously prescribed until paid.
The farm consists of nine distinct parcels of land. The mortgage contains ten descriptions, but the last only covers the eighth and ninth, and gives no additional quantity.
As appears in the other case, complainant acquired an interest entitling him to redeem prior to the bill.
In January, 1870, the defendant Pox, together with John P. Houck -and Isaac L. Ostrom, acquired the mortgage, and June’ 12, 1873, gave notice of foreclosure and sale pursuant to the power of sale and the regulations of the statute. The present solicitor and counsel of Fox acted as their attorney in the statutory foreclosure. The sale was postponed from time to time until the 9th. day of January, 1874, and on that day the whole premises were sold to Fox for the aggregate sum of ten thousand four hundred dollars.
The defense maintains, and the claim is sustained by the evidence in the record, that in fact Fox and his co-owners of the mortgage treated the premises at the sale as comprised of nine separate and distinct parcels salable separately, and that they actually sold each of such pieces by itself and for a distinct price, and that the several parcels brought the following sums: One brought sixteen hundred dollars, one two thousand dollars, one eight hundred dollars, one thirty-two hundred dollars, one sixteen hundred dollars, one six hundred dollars and three others two hundred dollars each.
The only matter in the record indicating the order of sale gives it as here stated.
When the sale was finished, the attorney for Fox, Houck & Ostrom, prepared the deed they desired the sheriff to execute to Fox, and which should be placed on file in the office of the register of deeds. But this deed imported that the whole premises had been sold in one parcel to Fox, and for the sum of ten thousand four hundred dollars, and contained no indication that the farm had been sold in distinct tracts or pieces and for specific sums.
The sheriff executed and acknowledged the deed as of January 9, 1874, and on the same day he made affidavit of the sale, and therein represented it as a sale 'of the whole farm as one parcel and for one sum.
On the same day, also, an affidavit by the printer was made, showing what publication of notice had been given, and on the 10th or 11th of January, 1874, these papers, with the sheriff’s certificate on the deed, showing when it would be absolute, were filed in the office of the register of deeds.
For nearly ten months, and until the 6th of November, 1874, no other papers were filed. At that time, however, the attorney for Fox prepared a new deed, describing the sale according to the fact and showing that the premises were sold in parcels, and stating the order as hereinbefore given. In other -respects this deed was like the first. It was antedated to January 9, 1874, and signed by the sheriff, and his acknowledgment of execution was certified as of January 9, 1874. A new affidavit of sale by the sheriff, and also a new affidavit of publication by the printer, were made, but the jurats were antedated to January 9, 1874. This new deed, with its erroneous date and antedated certificate of acknowledgment, and antedated certificate of the time when the deed would become absolute, together with the irregular affidavits, were caused by Fox to be filed in the register’s office, November 6, 1874.
The first papers were not removed or changed. They were suffered to remain in the place they had previously occupied, and being the place devoted to regular papers of that class, no warning or explanation was put on file to show that these papers were-irregular or not confided in, or that they were considered as superseded. They stood with the same apparent significance they had borne from the beginning. Having the purpose to redeem the whole or at least a part of the farm, complainant called repeatedly and examined the papers before the second set were filed. ■ He also called subsequently with the same object, but neither discovered nor was shown any of the new papers. Finally, and on the evening of January 8, 1875, being the last day for making redemption, he, together with his attorney and two others, waited at the register’s office to effect, if practicable, a redemption of the homestead, and possibly of another parcel.
His business was made known to the register to whom he tendered money enough, as turns out, to redeem the two parcels.
The register examined the first deed, and finding that it contained no basis for the redemption of part, refused the tender, and refused to recognize any right to redeem less than the whole. He gave no intimation that the first deed had been superseded, or that a second set of papers had been placed on file.
He must have forgotten the filing of the new instruments, and been misled by seeing the others where the papers in the case belonged. In other words, the placing of two sets of papers on the files, where the law contemplated but one, caused him to act upon the first set, and as though it was the only set on file. ■ Neither complainant nor his attorney had any knowledge or notice of the existence of the second set of papers.
January 11, 1875, the attorney for Fox called upon the register and desired him to record the second deed. At the same time he took and carried away the first deed, against the register’s objections. That deed has been practically repudiated and cancelled by - Fox, and is admitted to be a nullity.
Immediately succeeding the request made to him to record the second deed, the register notified its existence to complainant’s attorney.
On one or two occasions after the expiration of the year, Fox, speaking through his attorney, informed complainant he could have ten days to redeem the whole or part of the premises. This could not avail to correct illegalities or to preclude complainant from taking advantage of them and demanding to redeem as matter of right. If the right existed, it was not competent for Fox to impose conditions. The terms would depend upon the requirements of equity, and the limit of ten days was not equitable or based on any legal authority.
We come then to the general question, was the mortgage foreclosed and the right of redemption cut off by 'the steps taken therefor.
It is well settled that in executing the power of sale in a mortgage the statutory proceedings must comply substantially at least with all the conditions set by the legislature, and those who conduct the foreclosure must observe good faith and pay a proper regard to the interests of all who may be affected by the proceedings, and no defect or misstep in matters of substance will be cured or excused by any proof that it happened by mistake and was not induced by a bad purpose.—Lee v. Mason, 10 Mich., 403; Doyle v. Howard, 16 Mich., 261; Sandford v. Flint, 24 Mich., 26; Dodge v. Brewer, 31 Mich., 227; Udel v. Kahn, Id., 195; Montague v. Dawes, 14 Allen, 369; Roche v. Farnsworth, 106 Mass., 509; Byers v. Surget, 19 How., 303.
Fox and his co-owners of the mortgage sold and he bought in parcels, and complainant regarded a sale in that way as lawful, and both parties have assumed in argument, that although the premises were composed of contiguous parcels and made one farm and were occupied as one parcel, still a sale in parcels was essential to a valid foreclosure. Not being required to pass upon that question, no opinion is given on it.
In the circumstances of this case, it is sufficient that in fact the farm was disposed of in parcels.
The sale must be contemplated as it was, rather than as it was not. If incapable of being sustained as a sale in parcels it cannot stand as a sale in bulk ; because all are agreed that there was no such sale as that.
Without dwelling on others, there are three grounds of objection to the proceedings which may be noticed: first, in Doyle v. Howard, ubi supra, this court held that unless the proper deed was filed within a suitable time, and certainly within the year, the sale would be void. All admit that the first deed was not a proper one. If it be conceded that the filing of the second about two months, only before the expiration of the year was in a suitable time, was the deed itsef in compliance with law? The statute contemplates that the deed when placed on file is finished and in a'shape to be recorded in case redemption is not made, and although no acknowledgment of execution is in terms required by the chapter regulating foreclosures, still the profession have always considered that the general statute applied and rendered it necessary that the execution should be regularly authenticated to complete the deed for record. So universal has been the opinion, that there has never been any deviation in practice. Even in this very case the necessity was recognized.
The deed relied on bore the form of a certificate of acknowledgment pursuant to § 4210, C. L., which requires the “true date” to be expressed. The certificate was false, however. It imported an acknowledgment of execution taken nearly ten months before the deed was in fact made. This was designed, and was not only known to Fox as the party foreclosing and purchasing, but was in reality the act of his attorney. Admitting that no wrong was intended, it rvas still not a lawful proceeding. There is strong reason for the opinion that in consequence of this the deed was not such a deed as the law requires, and that Fox’s connection with the illegality disentitled him from demanding that the deed .should stand and be recorded. Assuming this to be so, then no proper deed Ayas filed within the year.
Second, The first deed is admitted to have been invalid.. It was deposited Avhere it would have rightly belonged if it had been valid, and accordingly in the exact place Avhere those interested in ascertaining were to look for any deed made on the foreclosure of the mortgage. It Avas allowed to remain there until the year for redeeming had expired. These proceedings Avere dictated- by Fox through his attorney, and he was responsible for them. However blameless in intention, the course so pursued caused the files to grossly misrepresent the sale, and to hold out false colors to the public and mislead complainant.
The first deed, and no other, being found soon after the sale, in the place set apart for foreclosure deeds, and having been repeatedly seen in the same place, ’and unaccompanied by any other for nearly ten months, complainant had no reason thereafter, upon finding the first deed as usual, to suppose that there would be found by further search the second and different deed Avhich Fox’s attorney caused to be placed on file on the 6th of November.
The perception of the old deed under the circumstances must naturally have put an end to search. The laAV provided for only one deed, and the first one presenting itself, as it did, implied that there was no other, and Fox is not entitled to hold complainant against the fact to a knoAvledge of the second deed from its having been placed in the files which held the other. Complainant did not discover it, and had no notice in fact of its existence, and the course*taken in the proceedings, and for which Fox is responsible- naturally and plainly served to veil the second deed from complainant and to defeat the leading purpose of the law in requiring such deeds to be filed, and so completely was the intent of the regulation defrauded, that even the register, who had certified the filing of the second deed, was himself entirely misled when called on in the evening of January 8th to attend to a redemption of part of the premises!
These unauthorized and improper proceedings were deceptive and inequitable and not a fair and just execution of the power of sale, and considering the actual positions and attitudes of Fox and complainant, Fox’s situation as claimant under the proceedings was no better as against complainant than it would have been if no deed at all had been filed within the year.
But suppose the fact had been different, and complainant, instead of being led to believe that the first deed was the only one filed, had actually discovered the second deed in the'files also; he was legally entitled to have the files inform him distinctly and without ambiguity about the sale, and whether the land had or had not been sold in parcels, and in regard to the price or prices, and was also entitled to have the files identify the very deed to be wholly -or in part canceled in case of redemption, and to be recorded as a conveyance if not canceled by redemption. The law required this, and did not contemplate extrinsic inquiries to settle such matters. It was intended that the files should make known these important facts. Now here were two deeds made to carry out the same foreclosure, and alike on their faces in every particular except as to the manner of sale, one denoting that the farm was sold in one parcel and for one sum, and the other that it was sold in nine parcels with a specific price for each parcel, and the files contained no sign or hint to show which of these deeds must be rejected and which acted upon.
Here, again, the proceedings were confused, ambiguous and irregular.
Third, The notice of sale, dated June 12, 1873, claimed that there was due at that time, for principal and interest alone, the sum of nine thousand four hundred and sixty-three dollars and ten cents. If to this be added the interest to the time of sale, on January 9, 1874, together with all the costs and expenses charged, the aggregate is found to be considerably less than ten thousand four hundred dollars, at which the premises are admitted to have been sold, and yet there is no intimation or pretense that Fox paid any thing beyond the mortgage debt and the costs and expenses. Indeed, the case implies that he did not, and that the debt, costs and expenses were treated as an equivalent.
It is next observable that according to the agreed computation found in the record, and of which Fox does not complain, the whole sum required to satisfy the mortgage and pay all costs and expenses at the time of sale was in fact but nine thousand three hundred and fourteen dollars and eighty-eight cents, and much less than was claimed some seven months earlier in the notice of sale for the bare principal and interest, and yet during that seven months interest accumulated on the principal sum at the rate of ten per cent.
Whether this sum of nine thousand three hundred and fourteen dollars and eighty-eight cents should not be regarded as excessive, is not material for the present purpose. It is sufficient that Fox does not complain that it is too small.
Now we have seen that nine parcels were separately sold, and that the sales aggregated ten thousand four hundred dollars and exceeded by one thousand and eighty-five dollars and twelve cents the required amount as shown by the agreed computation, and likewise considerably exceeded the required-amount if the sum claimed in the notice of sale is taken as a basis.
And it is further seen that prima facie too much was sold by three parcels at least if the sum found by the computation is taken as the true one, and too much prima facie by one parcel at least even if the claim in the notice is taken as correct. The conclusion is unavoidable that grave error was committed on this side of the proceeding, and that the power of sale was unlawfully executed in respect to the number of parcels sold. When enough had been sold to satisfy the mortgage debt and all costs and expenses, the power was exhausted, and the holders of the mortgage were without authority to make sale of more parcels. The statute recognizes this natural and plain limit, and in order to guard .against abuse, expressly forbids the sale of more parcels, tracts or lots than shall be necessary to satisfy the amount due at the date of the notice of sale, with interest and the costs and expenses allowed by law. — § 6918, G. L.
On the whole, it is quite evident that the statutory foreclosure cannot stand in the way of adequate relief to complainant.
The only material question which remains concerns the form the relief ought to take, and a few words will dispose of it.
The decree below was grounded on the theory of allowing redemption from the sale under the proceedings to foreclose, instead of allowing it against the mortgage as an unforeclosed security; and in ascertaining the amount to be paid on redemption, a rest was accordingly made in computing interest at the date of the sale.
Complainant’s counsel has made this the basis of an argument against compound interest, which he urged the court had allowed on the strength of the provision in the mortgage for the payment of interest on overdue installments of interest. The argument was scarcely warranted by the decree, which did not contemplate the compounding of interest in any accurate sense, and certainly there is no occasion for discussing the subject. The defense sets up no claim for compound interest, and no scheme of relief suggests itself as proper which would involve the allowance of it.
The principle of allowing redemption from the sale does not appear sound, and a departure from it will obviate certain objections made by complainant at the hearing, and render a special reference to them unnecessary.
The proceedings to foreclose have been found irregular, insufficient and inequitable, and not of force to bat redemption against the mortgage and to require the complainant to seek redemption from the sale, and hence the premises should be held redeemable from the mortgage as an unforeclosed security, and not from the invalid sale.
And under the circumstances, the general scheme of the decree ought to be the same a in Fosdick v. Van Husan, 21 Mich., 567.
There the irregular proceedings at law were set aside and not allowed to stand and mystify the title, and redemption was authorized against the mortgage, and it was provided that in the event of failure to redeem, a sale as on foreclosure should be had to produce satisfaction.
The result is, that the decree below should be reversed, and a new decree entered, setting aside the proceedings to foreclose under the power of sale, and authorizing complainant within some reasonable time to redeem the premises from the mortgage on payment to defendant Fox, or. his solicitor, or to the register of the court below, the proper amount therefor, and providing, on the other hand, for a sale of the premises as a foreclosure in equity, in case of complainant’s failure to redeem within the time allowed therefor.
There appears to be no objection to Fox’s claim on account of taxes which he paid and which are specified in the computation made under stipulation, and hence they should be allowed, with interest at seven per cent.
The interest at the rate of ten per cent, on the mortgage should be brought down from October 3, 1867, to the date of the decree, and except six hundred dollars paid, should be added to the principal. The interest at seven per cent, on the sums paid' for taxes should also be brought down from the several times of payment to the date of the decree, and added to the sums paid for taxes; and on the sum made up of principal and interest on the mortgage, interest should be allowed at the rate of ten per cent, from the date of the decree to the redemption or sale, as the case may be, and on the sum made up of taxes and interest thereon, interest should be allowed at seven per cent, from the date of the decree to redemption or sale. The addition, at the time of redemption, of the two principals and the accrued interest, will give the sum required for redemption. Complainant should recover costs of both courts.
The other Justices concurred. | [
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Campbell, J:
Haynes was sued for the conversion of the partnership property of Knowles & Littlefield aud for breaking up their business by its seizure and retention without right.
His justification was a l'evy under a writ of attachment directed against Lon P. Littlefield, under which he made the seizure in question. The plea was the general issue, without any special notice. The .property seized was hides, meat, fresh and salt, and a lot of articles used in carrying on a market. The evidence tended and was found by the jury to show a complete ouster of both parties and the entire destruction of their business.
The evidence introduced further showed a levy on all the specific property, item by item, and its appraisal in the same- way, on the 10th of April, 1875, under the attachment in question.
The defense controverted some of the facts shown by the plaintiffs, and also undertook to show an amendment made by the sheriff of his own return, under an ex parte order of the court issuing the attachment, the averment as amended being, that he levied on “all the interest of Lon B. Littlefield in all the partnership property and goods of the firm of Knowles & Littlefield, a copartnership composed df said defendant and one Roswell Knowles,” etc. The original return made no mention of any partnership interest, nor did the appraisal.
This amendment was made and applied for on the same day, December 13, 1876, while the present suit was on trial, and without notice to any one; and the affidavit, which was entitled in the original attachment suit, showed that the suit had been discontinued long before.
The court rightly excluded this testimony. If it is possible under any circumstances to amend a return on which jurisdiction over property depends, after the suit has been discontinued, it certainly cannot be done in any ease without notice to the parties to be affected by it.—Montgomery v. Merrill, 36 Mich. R., 97. But the idea that a person who is sued for misconduct in office can be allowed, pending his trial, to manufacture ex parte evidence for himself, is preposterous. The amendment is inconsistent and legally false, because the appraisal still stands in contradiction of it, showing that the appraisers valued the entire property item by item; and this appraisal, which is required to conform to the levy, was served on the defendant in attachment, with the writ.
We cannot quite understand how the court was induced to hold that under the original return the presumption was that the levy was only made on the partnership interest. But this error was in favor of the present plaintiff in error, and the jury came to the conclusion, nevertheless, that the seizure and ouster from the whole property were fully made -out, as we think they were quite right in finding. The property having been burned up, the loss became complete.
Such a levy cannot be justified. A levy on the interest of a partner, as intimated in Sirrine v. Briggs, 31 Mich. R., 443, if it can be made at all under an attachment, cannot be made on specific chattels. Such a levy is a trespass. The partner not sued cannot on any principle of justice be placed in any worse condition by a creditor of his partner than he could have been by his own partner. To have partnership business interrupted and broken up by a sheriff’s interference on mesne process, when it may turn - out, as it did in this case, that no final judgment will be .rendered against the defendant in attachment, is a result so unjust and destructive of valuable rights, that it does not commend itself. The machinery of our attachment laws, especially concerning appraisements, is not adapted to such seizures. The hopeless confusion in the authorities as to the manner and effect of levies on partnership interests, shows the difficulty of finding any safe rule to govern them, and we are not called upon to attempt it in the present ease. It is clear that such a levy as was here made cannot be justified.
The trespass made by an unlawful levy is injurious to both partners, and may therefore be the subject of a joint action, where the injury is tangible and the property disturbed or destroyed. There is no objection, therefore, either to a joint suit, which was not objected to here, nor to a joint judgment, which was objected to. Littlefield was as much damnified as Knowles, as his business was destroyed, and his property was not returned to him when the attachment was dissolved; and we are not concerned with any speculative questions which might have arisen had the levy been regular, and the property preserved.
The damages allowed for the destruction of the business come clearly within the rule in Chandler v. Allison, 10 Mich. R., 460; and Allison v. Chandler, 11 Mich. R., 542.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Graves, J:
Defendants in error, as co-partners under the style of Rose, French & Losey, were dealers in musical instruments in Clinton and some other counties. They were supplied-with pianos, organs, etc., by C. J. Whitney & Co., of Detroit.
In November, 1874, they agreed with Jeudevine to supply him with such instruments, and in connection with that arrangement, he, with the Taylors as his sureties, executed to Bose, French & Losey this bond: • .
“Know all men by these presents, that we, Warren H. Jeudevine, of Mount Pleasant, Isabella county, Mich., and Joseph K. Taylor, and William Taylor, and Aaron B. Taylor, of St. -Johns, Michigan, are held and firmly bound unto Bose, French & Losey, of St. Johns, Michigan, in the sum of two thousand dollars ($2,000) lawful money of the United States of America, to be paid to the said Bose, French & Losey, or to their certain attorneys, heirs, executors, administrators, or assigns, to which payment well and truly to be made, we bind ourselves, heirs, executors, and administrators, and each and every of them firmly by these presents.
“ Sealed with our seals and dated the 3d day of November, one thousand eight hundred and seventy-four.
“The condition of this obligation is such that, whereas, it has this day been, agreed between the said Jeudevine and said parties of the second part, that parties of the second part shall sell to said Jeudevine the C. J. Whitney &,Co. pianos at thirty-five per cent, less than the published catalogue price, with freight added from Detroit, to.be sold by said Jeudevine in the counties of Isabella, Gratiot, and Clare, Michigan, and which the said Jeudevine is to pay said parties for, either in cash or in good bank notes, with ten per cent, interest, payable not more than one year from date of note, wdiich note or notes shall be given fifteen days after shipment of said • pianos. Also the Packard organ to be sold in said counties by said Jeudevine, and for which he is to pay said second parties at a price thirty-five per cent, less than list prices, with freight added from Fort Wayne, Ind., either in cash or good bank notes with ten per cent. interest, payable in not more than six months from fifteen ■days after date of shipment of said organs; also the Estey ■organ, to a limited extent, to be sold in said counties by ¡said Jeudevine, and for which he is to pay said second parties at a. price thirty-five per cent, less than the published list price and freight added, either in cash or good bank notes, with ten per cent, interest, payable in not more than three months from the first day of the month next following date of shipment, provided that the amount due from said Jeudevine to said second parties shall at no time exceed two thousand dollars.
“Now, therefore, if the said Jeudevine shall well and truly keep and perform his said agreement, and said notes given by said Jeudevine shall be paid at maturity, so that said second parties receive payment in full for all said instruments at the time hereinbefore specified, then this obligation to be void, otherwise in force.
“Warren II. Jeudevine. [Seal.]
Wir. Taylor. [Seal.]
A. B. Taylor. [Seal.]
J. K. Taylor. [Seal.]”
December 17, 1874, Eose, French & Losey sold and delivered to Jeudevine under this arrangement an Estey organ and took his note therefor, which was afterwards paid.
Subsequently and prior to January 11th, 1875, and before any further sales were made to Jeudevine under the arrangement, the sureties on the bond called on Eose, French and Losey, and forbade their making further sales to Jeudevine on the credit of the security, and gave notice that they would not be responsible on account of any such further sales.
Notwithstanding this notice the defendants in error, on January 11th, 1875, sold and delivered to Jeudevine on the footing of the original arrangement three other organs, and took his note for the price, being four hundred and two dollars and twenty-five cents. This note was made payable to the order of C. J. Whitney & Co., 'at the First National .Bank of St. Johns, May 1st, J 875, and carried interest at ten per cent.
On its receipt by Rose, French and Jjosey, they endorsed and sent it to O. J. Whitney & Co., to be credited on account, -and in due season O. J. Whitney & Co. sent it forward with their endorsement, for collection, and it not being paid by Jeudevine or the sureties, Rose, French and Lo:sey took it up.
No other sales were made on the basis of the arrangement.
Rose, French and Losey then sued upon the bond to recover the amount of this last mentioned note.
The cause was tried without a jury, and the judge found ■the foregoing facts, and decided as matter of law, that the •defendants in error were entitled to recover, and judgment was entered pursuant to <the finding.
The charge of error is, that the facts do not support ■the judgment.
The chief question is upon the effect of the notice by ■the sureties to the defendants in error.
Plaintiffs in error claim that upon the facts as found ■the notice exempted the sureties from liability on the bond tor the subsequent sales for which the note was given.
Defendants in error maintain the contrary.
In considering the point our attention must be confined •■strictly to the precise state of facts presented.
Very slight differences might require a different opinion.
It is certainly not admissible to say that the primary agreement between Jeudevine and defendants in error was ■designed to continue without any limit as to duration.
The parties thereto must have contemplated some time •or event not very remote for its termination.
But no such time or event is mentioned, and the intention as to the duration of liability of the sureties is left entirely uncertain by the wording of the bond.
Where such is the case in regard to instruments of sure’•tyshipi given to secure performance of future mercantile engagements, the courts lean strongly to a construction which will confine the liability in point of time within reasonable bounds.
The rule when fairly applied is sensible and just. In case the parties have failed to manifest, in what they have said and done, a design that the liability is to continue indefinitely, it is not to be presumed that so extraordinary a risk was meant to be exacted on one side or voluntarily taken on the other.
To admit a contrary inference would be to suppose on general principles that the parties taking security sought what was not reasonable for them to ask for, and that the sureties were regardless on their part of the suggestions of interest and the dictates of ordinary prudence.
Defendants in error stipulated for no specific time, neither did the sureties bind themselves for any.
Of course the past could not be recalled. As to transactions already had, there could be no withdrawal. Accrued liability could not be canceled.
Still, in the absence of obligation for a continuance of liability in point of time, there would seem to be no reason for precluding a withdrawal as against transactions in no way entered upon, ajid considering the situation of the parties and that .a continuing liability in time was not specified, it would seem a reasonable and just construction, that as to transactions not yet initiated, not as yet in existence, the guaranty was meant to be at the will of the guarantors, and to be subject as to such matters to be ended by a manifestation of their will to that effect through actual notice.
There is nothing to show that any change of circumstances by defendants in error occurred on the faith of a longer continuance of the suretyship and whereby they would suffer injury by a withdrawal of the security at the time notice was given. There is no ground for raising any consideration of that kind.
The transactions in question were all had after full notice and in the face of an express declaration that the sureties withdrew and would not be responsible for further dealings, and there is not a fact to show that any thing whatever had been done towards the transactions before the notice, or that defendants in error had changed their position in contemplation of the further continuance of the guaranty, or, indeed, that the retirement of the sureties prevented the collection of the note. So far as the case shows, the whole business in question was begun and ended after the notice and with full knowledge that the sureties refused to be liable, and, moreover, nothing appears to show that Jeudevine is not himself responsible for the claim. In view of the actual state of facts, we think it should be held that the guaranty ceased to be current after the notice, and inoperative as to transactions thereafter entered upon, and' that the sales on which the note was given shonld be deemed as sales made on the credit of Jendevine, and not on the security of the bond.
The judgment should be reversed, and one entered here for plaintiffs in error, with costs of both courts.
The other Justices concurred. | [
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] |
Markman, J.
We granted leave to appeal in this case to consider whether gender-based harassment that is not at all sexual in nature is sufficient to establish a claim of sexual harassment under the Civil Rights Act (cra), MCL 37.2101 et seq. The circuit court granted summary disposition in favor of defendants, concluding that plaintiff had failed to establish a prima facie case of hostile work environment based on sexual harassment. The Court of Appeals reversed, concluding that gender-based harassment is sufficient to establish a claim of sexual harassment. We disagree. The cra prohibits sexual harassment, which is defined in that act as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature . . . .” MCL 37.2103(i). Accordingly, conduct or communication that is gender-based, but is not sexual in nature, does not constitute sexual harassment as that term is clearly defined in the CRA. Therefore, we reverse the judgment of the Court of Appeals and reinstate the circuit court’s order granting summary disposition in favor of defendants.
I. FACTS AND PROCEDURAL HISTORY
Two capitol security officers with the Michigan State Police, Virginia Rich and Canute Findsen, shot and killed each other, while on duty. After the incident, plaintiff, the personal representative of the estate of decedent Rich, brought suit under the cra against the state of Michigan, the Michigan Department of State Police, and two state police supervisors. Plaintiff claimed that Findsen had sexually harassed Rich by making hostile and offensive comments about her gender, thus creating a hostile work environment that caused Rich to complain to her supervisors, who failed to take remedial action.
Defendants filed a motion for summary disposition under MCR 2.116(C)(7) and (8), arguing that the alleged conduct was not sexual in nature and, thus, not sufficient to establish a claim of sexual harassment. Although plaintiff conceded that the alleged offensive conduct was not sexual in nature, she argued that the conduct was gender-based and that allegations of gender-based harassment are also sufficient to establish a claim of sexual harassment. The circuit court granted defendants summary disposition, concluding that plaintiff had failed to plead three of the five necessary elements to establish a prima facie case of hostile work environment based on sexual harassment. Specifically, it concluded that plaintiff had failed to plead that Rich was subjected to unwelcome sexual conduct or communication; that the unwelcome sexual conduct or communication was intended to, or, in fact, did, substantially interfere with Rich’s employment or create an intimidating, hostile, or offensive work environment; and respondeat superior.
The Court of Appeals reversed the circuit court’s order granting summary disposition for defendants. The Court relied on Koester v Novi, 458 Mich 1; 580 NW2d 835 (1998), which held that allegations of gender-based harassment can establish a claim of sexual harassment under the CRA. Defendants, the state of Michigan and the Michigan Department of State Police, applied for leave to appeal to this Court, which we granted.
H. STANDARD OF REVIEW
“The decision to grant or deny summary disposition is a question of law that is reviewed de novo.” Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Also reviewed de novo are questions of statutory interpretation, such as the question at issue here — whether harassment that is not sexual in nature, but is gender-based, is sufficient to establish a claim of sexual harassment under the cra. Id.
III. ANALYSIS
The cra, MCL 37.2202(1), provides in relevant part:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
Accordingly, it is unlawful for employers to discriminate against an individual with respect to a condition of employment because of sex. The cra, MCL 37.2103(i), further provides:
Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment, public accommodations or public services, education, or housing.
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.[ ]
Plaintiff alleges that the conduct in this case violated subsection iii by creating a hostile work environment. To establish a prima facie case of hostile work environment based on sexual harassment, plaintiff must show the following:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis of sex;
(3) the employee was subjected to unwelcome sexual conduct or communication;
(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and
(5) respondeat superior. [Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993); see also Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000).]
The first element is easily met because “all employees are inherently members of a protected class in hostile work environment cases because all persons may be discriminated against on the basis of sex.” Radtke, supra at 383. In this case, plaintiff meets the first element because Rich was an employee who was allegedly discriminated against on the basis of sex.
This Court concluded that, in order to meet the second element, a plaintiff need not show that the conduct at issue was sexual in nature; rather, a plaintiff need only show that “ ‘but for the fact of her sex, she would not have been the object of harassment.’ ” Id. (citation omitted). This second element is derived from the language of MCL 37.2202(1), which prohibits an employer from discriminating against an employee “because of” sex. Obviously, an employer cannot be said to have discriminated against an employee “because of” sex unless, but for the fact of the employee’s sex, the employer would not have discriminated against the employee. In this case, plaintiff alleges that Findsen sexually harassed Rich by making hostile and offensive comments about her gender. Accordingly, plaintiff has sufficiently alleged that, but for the fact of Rich’s sex, she would not have been the object of harassment, and thus plaintiff meets the second element.
However, in order to recover for sexual harassment, plaintiff must not only show that the employee was discriminated against because of sex, she must also show that the employee was “subjected to unwelcome sexual conduct or communication.” Radtke, supra at 382. This third element is derived from MCL 37.2103(i), which provides that “[s]exual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature . ...” In this case, plaintiff concedes that there were no “unwelcome sexual advances, requests for sexual favors, [or] other verbal or physical conduct or communication of a sexual nature . . . .” Plaintiff argues, instead, that the communication was gender-based and that this type of communication can also constitute sexual harassment, pursuant to Koester.
In Koester, supra at 10, this Court, in a four-to-three decision, concluded that “harassment on the basis of a woman’s pregnancy is sexual harassment.” Again, the CRA, MCL 37.2202(1), prohibits employers from discriminating against individuals on the basis of sex with respect to a condition of employment. The CRA, MCL 37.2201(d), further provides that “ ‘[s]ex’ includes, but is not limited to, pregnancy . . . .” Accordingly, discrimination because of a woman’s pregnancy is a form of discrimination because of sex. However, it is obviously not the only type of discrimi nation because of sex under the CRA. MCL 37.2103(f) also provides that “[discrimination because of sex includes sexual harassment.” Accordingly, sexual harassment is another type of discrimination because of sex.
Although Koester, supra at 11, correctly recognized that “discrimination on the basis of a woman’s pregnancy and sexual harassment are ‘two subsets of sex discrimination,’ ” it incorrectly concluded, in our judgment, that “harassment on the basis of a woman’s pregnancy is sexual harassment.” Id. at 10. Even assuming that harassment based on pregnancy may constitute discrimination based on pregnancy, and thus sex discrimination, harassment based on pregnancy that is not at all sexual in nature simply is not sexual harassment. That is, although harassment based on pregnancy and sexual harassment may both constitute sex discrimination, they clearly do not both constitute sexual harassment.
Pregnancy discrimination is sex discrimination, but it is not sexual harassment. In order to prove pregnancy discrimination, one must show that the employer discriminated against the employee on the basis of a pregnancy. However, in order for one to prove sexual harassment, one must show that there was either “unwelcome sexual advances, requests for sexual favors, [or] other verbal or physical conduct or communication of a sexual nature . . . .” MCL 37.2103(f). Accordingly, pregnancy discrimination and sexual harassment consist of substantially different elements, and thus a person asserting a claim of sexual harassment must prove something considerably different from a person asserting a claim of pregnancy discrimination.
Further, although article two of the CRA, MCL 37.2201(d), defines “sex” to include pregnancy, the Supreme Court in Koester erred in applying this definition of “sex” to the definition of “sexual harassment” found in article one of the CRA, MCL 37.2103(i). Koester stated, “to say that comments of a ‘sexual nature’ do not include comments about a woman’s pregnancy ignores the specific definition of sex as contained in the act.” Koester, 458 Mich 10-11. However, the definition of “sex” found in article two, which includes pregnancy, is preceded by the lan guage, “As used in this article . . . .” MCL 37.2201 (emphasis added). Therefore, this definition of “sex” is only applicable to article two. That is, although “sex” includes pregnancy for the purposes of article two, “sex” does not include pregnancy for the purposes of article one, the article at issue here. Accordingly, the Koester Court erred in applying article two’s definition of “sex” to the definition of “sexual harassment” found in article one.
To recapitulate, the CRA, MCL 37.2202(l)(a), prohibits employment discrimination because of sex. The cra, MCL 37.2201(d), defines “sex” to include pregnancy. Therefore, by concluding that harassment based on pregnancy is sexual harassment, the Koester Court also concluded that harassment based on gender is sexual harassment, even though such harassment is not at all of a sexual nature. However, the CRA, MCL 37.2103(i), defines “sexual harassment” as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature . ...” It is clear from this definition of sexual harassment that only conduct or communication that is sexual in nature can constitute sexual harassment, and thus conduct or communication that is gender-based, but that is not sexual in nature, cannot constitute sexual harassment. Accordingly, we overrule Koester to the extent that it concludes that harassment based on gender that is not at all sexual in nature constitutes sexual harassment under the cra.
The CRA, MCL 37.2103(i), clearly defines a hostile-work-environment claim based on sexual harassment as one involving “unwelcome sexual advances, requests for sexual favors, [or] other verbal or physical conduct or communication of a sexual nature . ...” In this case, plaintiff concedes that there were no “unwelcome sexual advances, requests for sexual favors, [or] other verbal or physical conduct or communication of a sexual nature . . . .” Accordingly, plaintiff clearly has not established a claim of sexual harassment under the CRA.
[U]nlike the general language of title VII, the CRA specifically defines “sexual harassment” as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature. The Legislature’s choice of language forecloses our reliance on title VII precedents to interpret sexual harassment under the cra. [213 Mich App 668-669.]
IV. STARE DECISIS
Overruling precedent must, of course, be undertaken with caution and must only be done after careful consideration of the effect of stare decisis. That is, courts must consider “(a) whether the earlier decision was wrongly decided, and (b) whether overruling such decision would work an undue hardship because of reliance interests or expectations that have arisen.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d 567 (2002).
With regard to the first inquiry, we believe, as we have already observed, that Koester was wrongly decided. The CRA, MCL 37.2103(i), specifically defines “sexual harassment” as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature . . . .” Therefore, the conclusion reached in Koester that gender-based harassment that is not at all sexual in nature can constitute sexual harassment is clearly wrong.
With regard to the second inquiry, we must examine “whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce
not just readjustments, but practical real-world dislocations.” Robinson v Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000). We conclude that the decision in Koester has not become “so embedded, so accepted, so fundamental” within our legal system that overruling it will interfere with any legitimate reliance or expectation interests. “[T]o have reliance, the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event.” Id. at 467. Overruling Koester will not disrupt any reliance interests as neither the plaintiffs decedent nor the defendants could conceivably have relied on our decision in Koester to their detriment. In no respect did any of them alter conduct in an attempt to conform such conduct to our decision in Koester. That is, assuming that the employer here did harass the plaintiffs decedent on the basis of gender, it certainly did not do so in reliance on our decision in Koester, which concluded that such conduct, in fact, constituted sexual harassment under the CRA. Nor could the plaintiffs decedent here have altered her conduct in any way in detrimental reliance on Koester. Moreover, it is hard to envision how any employer or employee conceivably could have altered their conduct in any way in detrimental reliance on Koester. Further, as this Court stated in Robinson, supra at 467:
[I]t is well to recall in discussing reliance, when dealing with an area of the law that is statutory . . . , that it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of law: to know in advance what the rules of society are. Thus, if the words of the statute are clear, the actor should be able to expect... that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest.[ ]
Accordingly, our decision today, that gender-based harassment that is not sexual in nature does not constitute sexual harassment under the plain language of the cra, will not create any “practical real-world dislocations.”
For these reasons, we conclude that Koester was wrongly decided and that overruling it will not interfere with legitimate reliance or expectation interests. Accordingly, after considering the imperatives of stare decisis, we believe that it is appropriate to overrule Koester to the extent that it is inconsistent with our decision here today, and with the CRA, that harassment on the basis of gender that is not at all sexual in nature does not constitute sexual harassment.
V. RESPONSE TO THE DISSENT
First and foremost, the dissent seems to be confused about what this case is and is not about. This confusion has led the dissent to construe our opinion to mean something that it clearly does not mean. That is, the dissent repeatedly mischaracterizes our opinion as concluding that hostile-work-environment actions are limited to claims of a sexual nature. At no point in this opinion do we draw such a conclusion. Rather, the only conclusion that we reach is the unremarkable one that, because the CRA specifically defines sexual harassment as “conduct or communication of a sexual nature,” MCL 37.2103(i), in order to establish a hostile-work-environment case based on sexual harassment, a plaintiff must show that the conduct complained of was sexual in nature. That is sexual harassment means sexual harassment. The dissent would construe sexual harassment to mean harassment of any kind.
The dissent argues that we should reach this conclusion because, since an employer cannot discriminate against an employee on the basis of gender, MCL 37.2202(l)(a), it necessarily follows that “an employer may not turn a blind eye to conduct that creates a hostile work atmosphere,” post at 328, on the basis of gender. However, we do not even address the substance of this argument because plaintiffs only allegation here is that the employee was sexually harassed and that this sexual harassment created a hostile work environment. Therefore, the only issue before us is whether plaintiff has established a prima facie case of sexual harassment. Accordingly, there is no need for us to reach out and address whether the cra recognizes a claim for hostile work environment based on anything other than sexual harassment. See n 9.
Further, we disagree with the dissent’s assertion that this Court is somehow bound to interpret Michigan’s Civil Rights Act in accordance with the federal courts’ interpretation of the federal civil rights act. See n 11. Even if, as the dissent states, the Michigan Legislature relied heavily on the federal civil rights act in drafting Michigan’s Civil Rights Act, the Michigan Legislature was clearly not bound by the federal civil rights act. That is, the Michigan Legislature was free to adopt a civil rights act that differed from the federal civil rights act, and although, as the dissent points out, there are many similarities between the two acts, the Michigan Legislature did, in fact, choose to adopt an act that is different from the federal act. Despite the dissent’s determination not to allow them to do so, the Michigan Legislature is allowed to determine for itself the extent to which it wishes to track the language of the federal law. In particular, Michigan’s Civil Rights Act is different from the federal civil rights act with regard to its treatment of sexual harassment. The dissent fails to respect this difference and, instead, concludes that because these acts are nearly identical they must be construed to mean exactly the same thing. We cannot agree that any time the Michigan Legislature creates a law that is “similar” to a federal law, it must be made identical, and the two laws must be interpreted to mean exactly the same thing.
Title VII of the federal civil rights act, like the Michigan Civil Rights Act, prohibits discrimination because of sex. However, unlike our civil rights act, title VII does not specifically prohibit and define “sexual harassment.” Our civil rights act specifically defines “sexual harassment” as “conduct or communication of a sexual nature . . . .” MCL 37.2103(f). Title VII, on the other hand, simply prohibits discrimination because of sex and the federal courts have construed this to include sexual harassment. Meritor Savings Bank, FSB v Vinson, 477 US 57, 66-67; 106 S Ct 2399; 91 L Ed 2d 49 (1986). That is, “federal case law has created a cause of action for sexual harassment under the general prohibition against gender discrimination,” Koester, 213 Mich App 668, while, the Michigan Legislature has specifically created a cause of action for both sex discrimination and sexual harassment.
VI. CONCLUSION
The CRA prohibits sexual harassment, which is defined in that act as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature . . . .” MCL 37.2103(f). Accordingly, conduct or communication that is gender-based, but is not sexual in nature, does not constitute “sexual harassment” as that term is defined in the CRA. Therefore, in this case, where plaintiff concedes that the communication was not sexual in nature, but contends that it was gender-based, plaintiff has not set forth a claim of sexual harassment under the cra. For these reasons, we reverse the judgment of the Court of Appeals and reinstate the circuit court’s order granting summary disposition in favor of defendants.
Corrigan, C.J., and Taylor and Young, JJ., concurred with Markman, J.
Weaver, J.
I concur in the result and reasoning of the majority, except that I do not join in part v, “Response to the Dissent.”
Unpublished opinion per curiam, issued September 28, 2001 (Docket No. 221535).
The proper recourse for conduct or communication that is gender-based, but not sexual in nature, is a sex-discrimination claim, not a sexual-harassment claim.
Although the harassment of Rich allegedly came primarily from Find-sen, who may have held the belief that females did not belong in law enforcement, he was not the only officer who allegedly harassed Rich.
The circuit court also dismissed plaintiffs claims against the two state police supervisors, and the Court of Appeals affirmed that decision. In addition, plaintiff voluntarily accepted the dismissal of a weight-discrimination claim.
As discussed below, the five necessary elements to establish a prima facie case of hostile work environment based on sexual harassment are:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis of sex;
(3) the employee was subjected to unwelcome sexual conduct or communication;
(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and
(5) respondeat superior. [Radtke v Everett, 442 Mich 368, 382-83; 501 NW2d 155 (1993); see also Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000).]
The circuit court concluded that plaintiff had failed to plead the last three elements.
466 Mich 889 (2002).
Subsections i and ii are commonly known as quid pro quo sexual harassment, and subsection iii is commonly known as hostile work environment sexual harassment.
When we refer to harassment based on pregnancy and pregnancy discrimination in this opinion, we are referring to conduct or communication that is pregnancy-based and that is not sexual in nature. This sort of conduct or communication is not sexual harassment. However, contrary to the dissent’s contention, we do not foreclose the possibility that pregnancy-based comments may rise to the level of sexual harassment where they are also of a “sexual nature.”
The Court of Appeals panel in Koester v Novi concluded that, even though evidence of harassment based on plaintiff’s pregnancy is not proof of sexual harassment, it may be proof of sex discrimination. 213 Mich App 653, 670 n 5; 540 NW2d 765 (1995). In the present case, we do not address whether harassment based on pregnancy may constitute sex discrimination because, even assuming that it does, that does not change the fact that harassment based on pregnancy is not sexual harassment, and thus, that the Supreme Court in Koester erred in holding otherwise. likewise, because the plaintiff in the present case only asserts a claim of sexual harassment, we do not address whether harassment based on sex may constitute sex discrimination.
As Justice Weaver in her partial dissent in Koester explained:
While sexual harassment technically may be a “subset” of sexual discrimination, a claim for sexual harassment requires different proofs including proof of “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature.” Thus, while sexual harassment is always a form of sex discrimination, all cases of sex discrimination do not necessarily amount to sexual harassment. [458 Mich 22-23.]
The dissent misconstrues our opinion as concluding that “gender-based harassment ‘is not at all sexual in nature Post at 322. To the contrary, our conclusion is not that conduct cannot be both gender-based and sexual in nature, and thus that conduct that is gender-based can never constitute sexual harassment; rather, our conclusion is simply that “conduct or communication that is gender-based, but is not sexual in nature, does not constitute sexual harassment as that term is clearly defined in the cra.” See p 304. However, if conduct is gender-based and sexual in nature, it may well constitute sexual harassment.
The Supreme Court in Koester erred in relying on a United States Supreme Court case that concluded that under title VII (now title 42) “[a] trier of fact may find sexual harassment when ‘the harasser is motivated by general hostility to the presence of women in the workplace.’ ” Koester, supra at 15, quoting Oncale v Sundowner Offshore Services, Inc, 523 US 75, 80; 118 S Ct 998; 140 L Ed 2d 201 (1998). The CRA specifically defines “sexual harassment,” while title VII does not. Therefore, while the United States Supreme Court may not be bound by any specific definition of “sexual harassment,” this Court is. As the Court of Appeals explained in Koester.
The dissent states that “[p]laintiff alleged that decedent Rich . . . suffered . . . harassment of a ‘sexual’ nature,” post at 323, that plaintiffs hostile-work-environment action is “allegedly nonsexual,” id. at 326, and that “[pjlaintiff’s counsel did allege harassment of a sexual nature,” id. at 342. However, no allegations of harassment of a sexual nature can be found in plaintiffs complaint. Further, at the hearing on defendant’s motion for summary disposition, plaintiff’s counsel specifically stated that the alleged harassment was not sexual in nature. The dissent mistakenly looks to plaintiffs motion for reconsideration and its accompanying affidavits for support for its assertion that plaintiff alleged harassment of a sexual nature. The trial court denied plaintiff’s motion for reconsideration and the merits of that decision are not presently before this Court. Instead, what is before this Court is whether the trial court erred in granting sum rnaiy disposition to defendants on plaintiff’s sexual-harassment claim. Only the pleadings may be considered when a motion for summary disposition is based, as this one was, on MCR 2.116(C)(8). MCR 2.116(G)(5). Therefore, there is absolutely no basis to look to plaintiff’s motion for reconsideration and its accompanying affidavits to determine whether the trial court erred in concluding that plaintiffs pleadings “failed to state a claim on which relief can be granted.” MCR 2.116(C)(8).
Contrary to the dissent’s contention, we do not “ignore]] the effect on this particular plaintiff's decedent], and any plaintiff with a pending hostile-environment claim that is not specifically sexual in nature.” Post at 335. Rather, we have specifically considered and addressed this issue and, as explained above, have concluded that plaintiffs decedent could not have possibly changed her conduct in any way in reliance on our decision in Koester. Further, we are not deciding here that plaintiff is not entitled to any relief. Rather, we are simply deciding that plaintiff is not entitled to relief for the claim of hostile work environment based on sexual harassment.
The dissent criticizes us for “ignor[ing] the instability that results from this Court’s weak adherence to the principle of stare decisis.” Post at 335. However, the dissent seems oblivious to the instability that results from courts of law failing to accord serious consideration to the clear words of the law. While the majority hi this case, at least, has sought to balance these respective instabilities, the dissent appears not to recognize the latter. Nor does the dissent appear to recognize that a recurrent source of disagreement between this majority and the dissent arises from the majority’s determination to give meaning to the clear words of the law. A principal rationale for doing this, of course, is to limit the extent to which this Court in the future must contribute to either of these potential sources of legal instability. To conclude, as the dissent does, that sexual harassment includes conduct or communication of a nonsexual nature, even though MCL 37.2103(f) clearly defines “sexual harassment” as “conduct or communication of a sexual nature,” would be, in our judgment, to disregard the words enacted by the Legislature and, not incidentally, create future instability in the law.
During oral argument, plaintiff’s counsel, himself, admitted that an overruling of Koester will not cause any “practical real-world dislocations”:
Justice Young-. Do you anticipate that employers, if Koester is trimmed in terms of its broad implication, or overturned, that employers generally are going to change their personnel policies to reflect an ability — change from what they’re doing now?
Mr. Boog-. No because I think most employers want their employees to be free of any type of harassment.
Justice Young-. I’m asking do you anticipate, given your experience, that they’ll change their policies.
Mr. Boog-. I would tell them to keep the same policies for the sake of employee morality [sic].
Further, employers will still have to consider the possibility of liability under the different language of title VH of the federal civil rights act.
Contrary to the dissent’s contention, it is clear from plaintiffs complaint that she is seeking recovery on the basis of a sexual-harassment claim. Specifically, plaintiffs complaint states, “[t]his is an action primarily for offensive work environment-sexual and weight harassment . . . ”; “[t]hroughout the course of Decedent Rich’s employment, and including, but not limited to within three years of her death, Decedent Rich was sexually harassed . . . ”; and “[t]he conduct of Defendants, and the agents, employees and representatives of Defendants State of Michigan and Michigan Department of State Police in sexually harassing Decedent Rich . . . .” [Emphasis added.] In addition, as the dissent recognizes, during oral argument, when specifically asked if the only claim that was alleged was one based on sexual harassment, plaintiffs counsel answered in the affirmative.
Contrary to the dissent’s overheated assertions, our opinion does not “oversimplif[y] the Civil Rights Act’s hostile-work-environment proscription,” “necessarily confine [] hostile-work-environment claims to those authorized by MCL 37.2103(i)(iii),” “severely constrict]] the scope of Michigan’s Civil Rights Act,” or “eviscerate[] Michigan’s hostile-work-environment jurisprudence” by “necessarily precluding the recognition of actions for hostile work environments based on religion, race, color, national origin, age, sex (inasmuch as the harassment is not overtly ‘sexual’), height, weight, or marital status under § 2202 of Michigan’s Civil Rights Act.” Post at 322, 326, 327. Instead, our opinion does not even address whether Michigan’s Civil Rights Act creates a hostile-work-environment action based on something other than sexual harassment because, as explained above, all that is before us today is a hostile-work-environment action that is based on sexual harassment. Plaintiff has not even attempted to bring a hostile-work-environment action based on anything other than sexual harassment. Contrary to the dissent’s assertion, we are not concluding that “victims of (hscrimination [may no longer] assert hostile-work-environment claims unless the activity at issue is ‘sexual’ in nature,” post at 334; instead, what we are concluding' here today is that a plaintiff may not assert a hostile-work-environment claim based on sexual harassment without showing that the complained of conduct was of a sexual nature.
The dissent further criticizes us for failing to recognize that in a hostile-work-environment action a plaintiff need not prove that she suffered a “tangible employment action” or an “economic loss.” Post at 329, 343. We are baffled by this criticism because nowhere in this opinion do we even suggest that a plaintiff in a hostile-work-environment action must prove that she suffered a tangible employment action or an economic loss. Instead, we simply conclude that, because it is uncontested that the conduct complained of here was not at all sexual in nature, plaintiff has not established a prima facie case of hostile work environment based on sexual harassment because the cra clearly defines sexual harassment as “conduct or communication of a sexual nature . . . .” MCL 37.2103(f).
The dissent criticizes us for “depart[ing] from this sound tradition and, in doing so, mak[ing] sweeping changes to our employment-discrimination jurisprudence.” Post at 326. To say the least, it is no “sweeping change” to construe different laws in a different manner. Unlike the dissent, we refuse to ignore the Michigan Legislature’s express definition of “sexual harassment,” and, instead, to adopt the federal courts’ definition of “sexual harassment” pursuant to an altogether different law. This refusal is not based on a preference for one definition over the other, but on our recognition of our obligation to adhere to the clear language of the law.
The dissent characterizes our attempt to give effect to the Legislature’s express definition of “sexual harassment” as “a perfunctory textual analysis that misconstrues our Legislature’s intent.” Post at 327. It is unfortunate that the dissent feels this way because we do not know how the Legislature could have made its intent any more clear. The Legislature defined “sexual harassment” as “conduct or communication of a sexual nature . . . .” MCL 37.2103(f). In light of this clear definition, we are at a loss to know how the dissent can conclude with a straight face that the Legislature intended sexual harassment to include conduct or communication of a nonsexual nature. If, as the dissent seems to believe, sexual har assment includes conduct or communication of a sexual and of a nonsexual nature, wouldn’t that mean that sexual harassment simply includes all conduct or communication? Unlike the dissent, we are comfortable in concluding that the Legislature intended what it said. Further, we do not find the Legislature’s intent that “sexual harassment” means harassment that is sexual in nature to be in the slightest bit surprising or unexpected.
For these reasons, we agree with the analysis in the Court of Appeals decision in Koester, 213 Mich App 668-669, and in the partial dissent to this Court’s decision in Koester, 458 Mich 23-24, concluding that we should not rely on title VII precedents to interpret sexual harassment under the language of our very different civil rights act. | [
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Young, J.
Plaintiff appeals the judgment of the Court of Appeals regarding several issues involving the Petition Clause of the First Amendment. We reverse that judgment and reinstate the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff, a construction company, submitted a bid to perform a masonry contract for the city of Wayne. Plaintiff was the low bidder for the contract. Pursuant to the Wayne City Charter, the city council was obligated to award the contract to the lowest qualified bidder unless it determined that the public interest would be better served by accepting a higher bid. Wayne City Charter, § 13.1(d).
Defendant Mark King, a Bricklayers & Allied Craftsmen Union field representative with fifteen years experience as a mason, discovered that plaintiff, a nonunion employer, was the low bidder for the masonry contract. He thereafter set out to dissuade the city council from awarding the contract to plaintiff. In this effort, defendant presented privately to the city manager, and to the city council in public session, deceptive photographs of plaintiffs masonry work that suggested plaintiffs workmanship was of poor quality. He also represented that plaintiff might not be able to perform the contract in a timely manner. After plaintiff attempted to respond to these allegations during the public meeting of the council, defendant made reference to the fact that plaintiff was a nonunion contractor that did not pay the prevailing wage to its employees.
Because of its concerns regarding the allegations defendant made against plaintiff, the city council referred plaintiffs bid to the city administration for further review. Following that review, the city council awarded the masonry contract to the second lowest bidder, stating in its resolution that “the Council had concerns as to the low bidder because of claims made about faulty workmanship and because of concerns about noncompliance with the payment of prevailing wages and fringe benefits . . . .”
Having lost the contract bid, plaintiff filed a complaint against defendant for defamation and tortious interference with business expectations. Applying an ordinary negligence standard, the trial court found that defendant’s statements regarding the quality of plaintiff’s workmanship and plaintiff’s prospective ability to complete the job on time were false and defamatory, but that plaintiff failed to meet its burden of proving that defendant’s prevailing wage statements were false. Regarding the defamation claim, the trial court rejected defendant’s argument that a qualified privilege existed because the statements were made while petitioning the government, reasoning that the qualified privilege “actual malice” standard was inapplicable because plaintiff was a private, not a public, figure. Having found defendant’s statements regarding plaintiff’s workmanship and prospective ability to timely complete the project to be false, defamatory, and unprivileged, the trial court held defendant liable for defamation under MCL 600.2911(7).
In addition, the trial court concluded that the defamation formed the foundation for tortious interference with business expectations. The court declined to protect defendant from liability from this claim on the basis of the principles of the Noerr-Pennington doctrine, which protect petitioning activity from antitrust violations when the petition concerns legislative or regulatory issues. The court concluded that defendant’s statements were not made in an attempt to urge legislative or regulatory policy decisions. In essence, the trial court applied what the Court of Appeals and the parties have termed a “market participant” exception to the Noerr-Pennington doctrine.
The trial court awarded plaintiff damages of $57,888, the loss of expected profits under the contract for both the claim of defamation and the claim of tortious interference with business expectations. Attorney fees of $104,286.95 and interest of $26,044.51 were also awarded to plaintiff.
Defendant appealed, and the Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. The Court of Appeals concluded that where petitioning activity is involved, the “actual malice” standard for defamation claims established in New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), applies regardless whether plaintiff is a private or public figure. Because the trial court only issued a finding that defendant’s defamatory statements were negligent, the Court of Appeals remanded the case to the trial court for a determination whether defendant’s conduct constituted “actual malice.”
Regarding the claim of tortious interference with business expectations, the Court of Appeals held that “ ‘the Noerr-Pennington doctrine is a principle of constitutional law that bars litigation arising from injuries received as a consequence of First Amendment petitioning activity, regardless of the underlying cause of action asserted by the plaintiffs.’ ” 245 Mich App 730, quoting Azzar v Primebank, FSB, 198 Mich App 512, 517; 499 NW2d 793 (1993). Relying on Azzar, the Court of Appeals concluded that defamation is actionable on the basis of petition activity only where the petitioning was actually a “sham.” Further, the panel reversed the trial court’s application of the “market participant” exception to the Noerr-Pennington doctrine, writing that “[i]t is not obvious why different rights, duties, or immunities should apply when one is lobbying for political action in the form of outright commercial patronage, as opposed to legislation or enforcement actions.” 245 Mich App 736.
We granted leave to appeal. 466 Mich 859 (2002).
H. STANDARD OF REVIEW
Plaintiff’s appeal raises three issues of federal constitutional law regarding the Petition Clause: first, whether a private-figure plaintiff must prove “actual malice” in a defamation claim against a defendant whose contested statements were made while petitioning the government; second, considering the Noerr-Pennington doctrine, whether a cause of action exists for tortious interference with business expectations as the result of statements made by a defendant while petitioning the government; and third, whether there exists a “market participant” exception to the Noerr-Pennington doctrine.
The protections provided by the First Amendment, including the Petition Clause, have been extended to the states by the Fourteenth Amendment. Whitehill v Elkins, 389 US 54, 57; 88 S Ct 184; 19 L Ed 2d 228 (1967). We review de novo issues of constitutional law. McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999).
HI. DISCUSSION
A. DEFAMATION
The first issue presented is whether the private-figure and public-figure dichotomy embodied in defamation case law on freedom of speech and freedom of the press from the United States Supreme Court extends to defamation involving the right to petition. The United States Supreme Court has never been squarely presented with, or decided, this question.
However, we are guided by the general Petition Clause defamation concepts announced in McDonald v Smith, 472 US 479; 105 S Ct 2787; 86 L Ed 2d 384 (1985). In rejecting an argument that absolute immunity attaches to the right to petition, the McDonald Court wrote:
To accept petitioner’s claim of absolute immunity would elevate the Petition Clause to special First Amendment status. The Petition Clause, however, was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. These First Amendment rights are inseparable and there is no sound basis for granting greater constitutional protection to statements made in a petition to the President than other First Amendment expressions. [McDonald, supra at 485 (internal citations omitted; emphasis added).]
By this reasoning, at least regarding the constitutional law of defamation immunity, the Court has made clear that it considers the Petition Clause as offering no greater protection than that of the Free Speech Clause and the Free Press Clause. In so concluding, we believe the Court has strongly signaled its view that all the Free Speech Clause and Free Press Clause defamation doctrine developed in the past forty years is to be imported without change to constitutional adjudications arising under the Petition Clause. Accordingly, an analysis of relevant United States Supreme Court case law on free speech and free press defamation is essential. Production Steel Strip Corp v Detroit, 390 Mich 508, 514; 213 NW2d 419 (1973).
Under long-settled constitutional principles concerning the First Amendment rights of freedom of speech and freedom of the press, a public-figure plaintiff must establish that a defendant made defamatory statements wdth “actual malice” in order to prevail in a defamation action. New York Times, supra (establishing the “actual malice” standard for liability for defamation of public officials); Curtis Publishing Co v Butts, 388 US 130; 87 S Ct 1975; 18 L Ed 2d 1094 (1967) (extending the “actual malice” standard to public figures). “Actual malice” exists when the defendant knowingly makes a false statement or makes a false statement in reckless disregard of the truth. New York Times, supra at 280. In other words, a defamation defendant is entitled to a qualified privilege in the form of a heightened “actual malice” standard required to be met by a public-figure plaintiff.
In contrast, a defamation defendant whose alleged defamatory statements pertained to a private figure receives no such constitutional protection under case law on freedom of speech and freedom of the press. Rather, the states are left to decide for themselves whether a private-figure plaintiff must establish more than ordinary negligence as a predicate for recovery for defamation. Gertz v Robert Welch, Inc, 418 US 323, 346-348; 94 S Ct 2997; 41 L Ed 2d 789 (1974). In Rouch v Enquirer & News of Battle Creek, 427 Mich 157; 398 NW2d 245 (1986), this Court held that a defamation defendant is not entitled to a qualified privilege in a case involving a private-figure plaintiff under Michigan law, and thus declined to extend greater protection than constitutionally required under Gertz. More important, the Michigan Legislature codified the Rouch holding in 1988, statutorily providing that defamation of a private figure requires only a showing of negligence, not actual malice. MCL 600.2911(7).
Because the United States Supreme Court has concluded that the right to petition should be accorded no greater protection than the rights to free speech and free press, McDonald, supra at 485, we conclude that the private-figure and public-figure dichotomy that applies to defamation claims involving the Free Speech Clause and the Free Press Clause, Gertz, supra at 342-347, also applies to defamation claims involving the Petition Clause. Accordingly, we reverse the judgment of the Court of Appeals that the “actual malice” qualified immunity standard of New York Times applies in Petition Clause defamation cases regardless whether the plaintiff is a private or public figure. Extending Gertz in the manner suggested by McDonald, a defamation defendant whose statements about a private figure are made while petitioning the government is not constitutionally entitled to a qualified immunity in the form of the heightened “actual malice” standard. Because MCL 600.2911(7) provides no greater protection for such defendants, the Court of Appeals erred. The trial court’s decision concerning plaintiff’s defamation claim is reinstated.
B. TORTIOUS INTERFERENCE WITH BUSINESS EXPECTATIONS
Although we maintain reservations about the judgment of the Court of Appeals regarding the claim of tortious interference with business expectations, concerning the Noerr-Pennington doctrine and any “market participant” exception to that doctrine, we need not review those issues here.
The trial court awarded damages for lost business profits under alternative theories of defamation and tortious interference with business expectations based on defamation. Attorney fees were awarded pursuant to MCL 600.2911(7), which pertains to defamation actions. In light of our reversal of the judgment, of the Court of Appeals regarding defamation and the resulting reinstatement of the trial court’s decision on that claim, the full judgment amount awarded by the trial court to plaintiff is restored.
Accordingly, our disposition of the remaining federal constitutional issues raised by the parties and decided by the Court of Appeals will not alter the ultimate resolution of this case. This Court will not unnecessarily decide constitutional issues, People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001), and it is an undisputed principle of judicial review that questions of constitutionality should not be decided if the case may be disposed of on other grounds. MacLean v Michigan State Bd of Control for Vocational Ed, 294 Mich 45, 50; 292 NW 662 (1940).
For these reasons, we decline to address the federal constitutional issues presented concerning the Noerr-Pennington doctrine and the suggested “market participant” exception to that doctrine. Although we question the analysis of the Court of Appeals regarding those issues, our resolution of the case makes it unnecessary for us to address them.
CONCLUSION
The Court of Appeals incorrectly concluded that the private-figure and public-figure dichotomy present in freedom of speech and freedom of the press, case law is inapplicable to defamation claims involving the right to petition. In McDonald, supra at 485, the United States Supreme Court stated that “there is no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” Accordingly, it is clear that the constitutional rules regarding defamation claims involving the Free Speech Clause and the Free Press Clause are applicable to defamation claims involving the Petition Clause.
The private-figure and public-figure dichotomy being one of the constitutional rules, we hold that private-figure defamation plaintiffs are only constitutionally required to prove ordinary negligence in order to establish defamation in cases involving the right to petition. No qualified immunity is constitutionally provided to defamation defendants whose statements about private figures are made while petitioning the government. Because MCL 600.2911(7) does not provide greater protection for defamation defendants than constitutionally required, ordinary negligence is the standard required to be met by private-figure defamation plaintiffs in cases involving the Petition Clause.
For these reasons, we reverse and vacate the judgment of the Court of Appeals and reinstate the judgment of the trial court.
Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with Young, J.
Section 13.1(d) specifically provides:
Purchases shall be made from the lowest qualified bidder meeting specifications, unless the Council shall determine that the public interest will be better served by accepting a higher bid, sales shall be made to the bidder whose bid is most advantageous to the City. In any case where a bid, other than the lowest, is accepted, the Council shall set forth its reasons therefor in its resolution accepting such bid.
Because the trial court found that King was acting in his capacity as a union representative and thus on behalf of the defendant union during the events at issue, we will refer to both defendants in the singular.
MCL 600.2911(7) provides:
An action for libel or slander shall not be brought based upon a communication involving a private individual unless the defamatory falsehood concerns the private individual and was published negligently. Recovery under this provision shall be limited to economic damages including attorney fees.
The Noerr-Pennington doctrine is derived from two United States Supreme Court cases pertaining to the Petition Clause and antitrust laws: Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc, 365 US 127; 81 S Ct 523; 5 L Ed 2d 464 (1961), and United Mine Workers of America v Pennington, 381 US 657; 85 S Ct 1585; 14 L Ed 2d 626 (1965).
The “market participant” exception to the Noerr-Pennington doctrine, adopted in some jurisdictions, but rejected in others, generally provides that a petitioner is not insulated from liability for defamation while petitioning the government where the governmental entity is acting as a market participant, as opposed to making policy. 245 Mich App 722, 733-734; 631 NW2d 42 (2001), citing George R Whitten, Jr, Inc v Paddock Pool Builders, Inc, 424 F2d 25 (CA 1, 1970) (adopting an exception to NoerrPennington where the government is performing a proprietary function); Greenwood Utilities Comm v Mississippi Power Co, 751 F2d 1484, 1505 n 14 (CA 5, 1985) (expressly rejecting Whitten).
The trial court also rejected defendant’s argument that plaintiff’s claims are preempted by the National Labor Relations Act, 29 USC 151 et seq. The Court of Appeals affirmed the trial court’s decision regarding this federal preemption issue. Defendant has not cross-appealed on this issue or moved to have it added as an issue of dispute before this Court. Accordingly, we will not address that portion of the judgment of the Court of Appeals.
Const 1963, art 1, § 3 provides that “[t]he people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.” However, the parties have neither rested their arguments on this state constitutional right nor suggested that this provision is interpreted any differently from the Petition Clause of the First Amendment. Accordingly, our consideration is limited to the federal constitutional issues presented.
While in this opinion we conclude that McDonald v Smith, 472 US 479; 105 S Ct 2787; 86 L Ed 2d 384 (1985), provides sufficient guidance to resolve the pending issues, we believe the Supreme Court has never directly addressed whether the private-figure and public-figure doctrine of free speech and free press defamation law announced in Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974), discussed below, applies in a petition case.
The Court had no cause to discuss the Gerlz doctrine in McDonald, inasmuch as the McDonald plaintiff was a public figure and, thus, defendant was constitutionally entitled to the qualified immunity “actual malice” standard of New York Times, as a result of the McDonald Court holding that the Petition Clause provided no greater defamation protection than the Free Speech Clause and the Free Press Clause. In addition, under the state common law of North Carolina, which was at issue in McDonald, “actual malice” was the governing standard for both private-figure and public-figure defamation actions. As a result, the fact pattern in McDonald did not invite or require a discussion of the private-figure and public-figure dichotomy.
In interpreting the federal constitution, state courts are not privileged to provide greater protections or restrictions when the Supreme Court of the United States has refrained from doing so. Arkansas v Sullivan, 532 US 769, 772; 121 S Ct 1876; 149 L Ed 2d 994 (2001).
Gertz specifically held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347. Accordingly, defamation against a private figure still requires that fault be established. In addition, private-figure plaintiffs may only recover actual damages under a negligence standard for defamation. In order to recover any presumed or punitive damages, Gertz requires proof of actual malice. Id. at 350.
Where the alleged defamation concerns both a private figure and a matter of private concern, the burden of proving that the statement was not false rests with the defendant. However, where the statements are of public concern, the private-figure plaintiff bears the burden of proving falsity. Rouch, supra at 181, citing Philadelphia Newspapers, Inc v Hepps, 475 US 767; 106 S Ct 1558; 89 L Ed 2d 783 (1986). In this case, plaintiff proved falsity at trial.
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] |
Taylor, J.
We granted leave to appeal in this case to determine whether the examining magistrate abused his discretion when he refused to bind defendant over for trial in the circuit court. Finding such an abuse occurred, we affirm the circuit court judgment that reinstated the charges.
I. proceedings below
Donna Yost was charged with open murder, MCL 750.316(l)(a), and felony murder, MCL 750.316(l)(b), of her seven-year-old daughter Monique, who died of an overdose of a prescription medication called Imipramine on Sunday, October 10, 1999.
The preliminary examination lasted seven days. The prosecution called several lay witnesses and two expert witnesses, Dr. Kanu Virani, a forensic patholo gist who performed an autopsy, and Dr. Michael Evans, a toxicologist who analyzed a blood sample obtained during the autopsy. The defense also called several lay witnesses and three experts, Dr. David Fleisher, an expert in pharmocology; Dr. Laurence Simson, a forensic pathologist; and Dr. Alan Berman, a clinical psychologist. The district judge, in his role as examining magistrate, refused to bind defendant over for trial for lack of credible evidence of a homicide.
The prosecution appealed to the circuit court. That court reviewed the lengthy transcripts and determined that the record established a sufficient basis for finding that a homicide was committed and probable cause to believe that defendant committed it, and that the magistrate therefore had abused his discretion in refusing to bind defendant over.
Defendant appealed the circuit court’s decision to the Court of Appeals. The Court of Appeals denied leave to appeal “for failure to persuade the Court of the need for immediate appellate review.” The Court of Appeals subsequently denied defendant’s motion for rehearing.
Defendant next filed an application for leave to appeal with this Court. We granted leave to appeal limited to the issues
(1) whether the refusal of the magistrate to bind the defendant over for trial was an abuse of discretion, (2) what is the appropriate role of the magistrate at a preliminary examination in assessing the credibility of witnesses and how does that assessment affect the bindover decision, and (3) whether the reviewing court applied the correct standard of review in this case?[ ]
H. PRELIMINARY EXAMINATIONS
Preliminary examinations are not constitutionally required. Hall, supra at 603. Rather, the preliminary examination is solely a creation of the Legislature, i.e., it is a statutory right. MCL 766.13 provides:
If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other court having jurisdiction of the cause, for trial.
As the statute indicates, the preliminaiy examination has a dual function, i.e., to determine whether a felony was committed and whether there is probable cause to believe the defendant committed it. At the examination, evidence from which at least an inference may be drawn establishing the elements of the crime charged must be presented. People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979). The probable-cause standard of proof is, of course, less rigorous than the guilt-beyond-a-reasonable-doubt standard of proof. Id. at 103. Probable cause requires a quantum of evidence “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief” of the accused’s guilt. People v Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652
(1997). Yet, to find probable cause, a magistrate need not be without doubts regarding guilt. The reason is that the gap between probable cause and guilt beyond a reasonable doubt is broad, id., and finding guilt beyond a reasonable doubt is the province of the jury. People v Goecke, 457 Mich 442, 469-470; 579 NW2d 868
(1998) .
m. STANDARD OF REVIEW
Our case law has sometimes indicated that a reviewing court may not reverse a magistrate’s bindover decision absent a “clear abuse of discretion,” e.g., People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933); Doss, supra at 101. At other times our case law has omitted the word “clear” and has simply required a reviewing court find an “abuse of discretion,” e.g., Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974); Justice, supra at 344.
In defining what an “abuse of discretion” is, this Court has frequently invoked the test adopted in Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959). As Spalding stated the test, an abuse of discretion occurs when the lower court’s decision is “so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” Id. at 384-385.
IV. MAGISTRATE’S CONSIDERATION OF CREDIBILITY
Our prior case law recognizes the propriety of an examining magistrate’s considering the credibility of witnesses. In People v Paille #2, 383 Mich 621, 627; 178 NW2d 465 (1970), the examining magistrate, when faced with several collusive witnesses, was struck with their inability to coordinate their testimony. He concluded that their testimony was incredible and “could not possibly convince a disinterested arbiter of facts of their good faith or their truthfulness.” Id. at 624. They were, as he described it, engaged in “calculated prevarication to the point of perjury . . . .’’Id. This Court, in reviewing the matter, indicated that a magistrate in determining whether a crime has been committed has not only the right, but the duty, to pass judgment on the credibility of the witnesses. Id. at 627.
While this holding clearly allows a magistrate authority to consider the credibility of witnesses, we have also instructed examining magistrates to not refuse to bind a defendant over for trial when the evidence conflicts or raises reasonable doubt of the defendant’s guilt. Yaner v People, 34 Mich 286, 289 (1876), Doss, supra at 103, and Goecke, supra at 469-470.
With regard to expert testimony, after the expert has been properly qualified by the court, credibility determinations are generally handled in the same manner as for lay witnesses.
V. THE MAGISTRATE’S DECISION
Analysis of a blood sample by a laboratory revealed Monique died from an overdose of Imipramine. Dr. Virará testified that he did not find any pill residue or granular material in Monique’s stomach during the autopsy. He used this fact as the basis for his opinion that Monique had not taken the pills intact, i.e., the pills probably had been liquified and then ingested. Dr. Virani also opined that children at the age of seven do not commit suicide. Putting these propositions together, Dr. Virani concluded that a crime, homicide, had taken place.
Defendant called several expert witnesses. Dr. Fleisher, a pharmacology expert, calculated that Monique had taken eighty-nine Imipramine pills and, because he was familiar with the dissolution characteristics of Imipramine, concluded there was no reason to expect to find pill residue in Monique’s stomach even if she had taken the pills whole. A forensic pathologist, Dr. Simson, testified that, having considered Dr. Fleisher’s dissolution testimony, he was not surprised that no pill residue was found and he could not conclude that a homicide had occurred. Finally, Dr. Berman, an expert in suicidology, testified that while rare, children as young as seven have been known to commit suicide.
The magistrate in stating his ruling indicated that Dr. Virani’s two major premises were rejected as “not credible.” First, he disregarded Dr. Virani’s opinion that there would have been pill residue in Monique’s stomach if the pills had been taken intact because Dr. Virani was not qualified in pharmacology or pharmaceutics and because this conclusion was “completely refuted” by qualified defense expert testimony. Second, he disregarded Dr. Virani’s conclusion that children as young as seven do not commit suicide because Dr. Virani had limited training in psychiatry or psychology and because this conclusion was refuted by Dr. Berman. The gist of this was that the magistrate thought Dr. Virani was simply not qualified as an expert in these two areas. Having rejected these two points of Dr. Virani’s testimony, the magistrate concluded that one would have to speculate to conclude that a homicide had occurred. Moreover, if a homicide did occur, there was little to link the defendant to it. Thus, the magistrate refused to bind defendant over.
VI. THE CIRCUIT COURT’S OPINION
The circuit court found that there was credible expert testimony on both sides and, thus, the magistrate had exceeded his authority by comparing the credibility of the experts. The court stated that Dr. Virani’s expert opinion was not inherently incredible or unbelievable and, given the conflicting expert opinions, it was the responsibility of the fact-finder, not the magistrate, to resolve them.
The circuit court further indicated that, leaving aside Dr. Virani’s two premises, there was enough other credible circumstantial evidence from which one could conclude that Monique’s death was a homicide and that defendant killed her. Circumstantial evidence included that (1) defendant had the opportunity to give Monique the pills because she was alone with the child during the day when the child ingested the pills and died, (2) there was evidence of motive in that defendant was angry and frustrated with Monique and had been punishing her (for leaving the yard without telling anyone) at the time Monique ingested the pills, (3) defendant initially told the police after Monique’s death that all the family’s medications were accounted for and that Monique could not have gotten into any of them, (4) defendant failed to tell the police at that time that Monique had previously been taking Imipramine, (5) three days after Monique died, forty-six Imipramine pills mysteriously appeared in an upstairs room on the second floor, when, according to a neighbor, no pills were present in the room the day after Monique died, and (6) after the pills were “discovered,” defendant told the police the pills must have been what killed Monique (this was before the toxicology report had been completed).
On the basis of all these, the judge concluded that these circumstances were sufficient to warrant a conclusion by a cautious person that the defendant had committed murder. The judge observed that the defendant was free to argue at trial that Monique committed suicide, but the possibility of suicide did not preclude a bindover of defendant where there was sufficient other proof of homicide. Thus, the circuit judge concluded that the magistrate had abused his discretion and the charges should be reinstated.
m ANALYSIS
After carefully reviewing this matter, we agree with the circuit court that the examining magistrate abused his discretion in refusing to bind defendant over for trial.
The magistrate rejected Dr. Virani’s opinion testimony that the lack of pill residue suggested the pills were not taken whole, but liquified first and then swallowed. It was the magistrate’s view that Dr. Virani was not qualified to render such testimony where he did not know how long it took Imipramine to dissolve in gastric juices. It is unnecessary for us to determine whether this ruling regarding Dr. Virani’s qualifications was correct because Dr. Virani’s conclusion was echoed in the testimony of another expert, the toxicologist, Dr. Evans, who, because of his own knowledge of the dissolution characteristics of Imipramine, concluded that, given the large number of pills taken, residue should have been present.
The second opinion component of Dr. Virani’s testimony was that children at the age of seven do not commit suicide. Again, we need not deal with the ruling on Dr. Virani’s qualifications in this area because the bindover decision could be made without expert testimony on the propensity of children to commit suicide. There were proofs in this case that would cause a cautious individual to have probable cause to believe that the prosecution had circumstantially established that defendant had committed murder. This is not to say that at trial a fact-finder could not be convinced that the child self-administered the pills, but that the prosecution has no duty at the preliminary examination to negate that theory to get defendant bound over for trial. It is enough that a reasonable person could believe that a crime by poisoning was shown and that defendant had motive and opportunity, as well as arguably incriminating actions and explanations.
In sum, we agree with the circuit court that the expert testimony in tandem with the circumstantial evidence, which included evidence relating to motive and opportunity, was sufficient to warrant a bindover. We conclude that the magistrate failed to give any weight to Dr. Evans’s expert testimony when he should have, failed to give any weight to the lay testimony related to defendant’s possible motive and opportunity, and gave undue weight to the testimony regarding the propensity of children to commit suicide. Thus, the magistrate abused his discretion when he concluded from all the evidence that probable cause to bind defendant over for trial did not exist.
The fact that the magistrate may have had reasonable doubt that defendant committed the crime was not a sufficient basis for refusing to bind defendant over for trial. As we stated in Justice, supra at 344, a magistrate may legitimately find probable cause while personally entertaining some reservations regarding guilt.
For these reasons we affirm the judgment of the circuit court.
Corrigan, C.J., and Young and Markman, JJ., concurred with Taylor, J.
Cavanagh, Weaver, and Kelly, JJ., concurred in the result only.
“Murder committed in the perpetration of, or attempt to perpetrate . . . child abuse in the first degree . . . .”
Unpublished order, entered June 6, 2001 (Docket No. 234065). If the Court of Appeals had denied leave to appeal “for lack of merit,” we would comment no further. However, the ground cited by the Court of Appeals for denying leave to appeal was “failure to persuade the Court of the need for immediate review.” This reason was flawed. If defendant went to trial and were found guilty, any subsequent appeal would not consider whether the evidence adduced at the preliminary examination was sufficient to warrant a bindover. People v Hall, 435 Mich 599, 601-603; 460 NW2d 520 (1990) (an evidentiary deficiency at the preliminary examination is not a ground for vacating or reversing a subsequent conviction where the defendant received a fair trial and was not otherwise prejudiced by the error).
Unpublished order, entered July 24, 2001 (Docket No. 234065).
465 Mich 966 (2002).
However, as explained in People v Glass (After Remand), 464 Mich 266, 271; 627 NW2d 261 (2001), the right to a preliminary examination does not apply if a defendant is indicted by a grand jury.
While the propriety of utilizing the Spalding test in criminal cases has been questioned, People v Williams, 386 Mich 565, 573; 194 NW2d 337 (1972), and People v Talley, 410 Mich 378, 393-397; 301 NW2d 809 (1981) (Levin, J., concurring) overruled in part on other grounds, People v Kaufman, 457 Mich 266, 276; 577 NW2d 466 (1998), we have continued to utilize the Spalding test, People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002); People v Jackson, 467 Mich 272, 277; 650 NW2d 665 (2002), and find no occasion to revisit this question today.
Similar statements authorizing the examining magistrate to assess the credibility of witnesses are found in Talley, supra at 386, People v King, 412 Mich 145, 152-154; 312 NW2d 629 (1981), and Justice, supra at 343 n 14 (citing King with approval).
There is some tension between these two principles. However, we find no need to clarify the interplay between these two principles in this opinion.
As we stated in People v Christel, 449 Mich 578, 587; 537 NW2d 194 (1995), before permitting expert testimony, the court “must find that the evidence is from a recognized discipline, as well as relevant and helpful to the trier of fact, and presented by a witness qualified by ‘knowledge, skill, experience, training, or education . . . .’ MRE 702[.]”
This medication had been prescribed to Monique to help prevent bedwetting.
The district court’s written opinion never mentioned Dr. Evans’s testimony, and thus it is unclear that this testimony was ever considered. This omission is significant because it suggests that the district court, in making its bindover decision, overlooked significant evidence that was relevant to whether there was probable cause to bind over defendant for trial. Dr. Evans’s testimony tended to support the prosecutor’s theory of the case while Dr. Fleisher’s tended to support the defense’s theory. Because the testimony of both experts was relevant to a substantial, disputed issue in this case, and because each witness’s testimony was competent and credible, resolution of the conflict between them should have been left for the fact-finder at trial.
The testimony established more than one possible motive. As the circuit court noted, defendant was angry and frustrated with Monique’s behavior of leaving the yard without telling anyone where she was going. However, in addition to anger and frustration, there were other possible motives. Defendant told the police that Child Protective Services had been out to the house because Monique had said that defendant had mistreated her. Also, there was testimony that defendant knew the prosecutor’s office wanted to interview Monique regarding allegations that she had been molested by a teenager who had previously stayed at their house and that the teenager had indicated that Monique’s nine-year-old brother had been molesting Monique. Further, neighbor Mary Jo Sheldon testified that just a few days before Monique died Monique had told her that her brother and father had molested her. Ms. Sheldon indicated that she reported this to defendant and that defendant slapped Monique and called her a liar.
While motive is not an element of the crime, evidence of a possible motive was relevant to the bindover decision in this case.
While a child’s propensity to commit suicide was potentially relevant to whether a crime was committed and to the defense’s theory of the case, the conflicting testimony on this issue amounted to the type of disputed fact that should normally be resolved by the trier of fact. | [
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Kelly, J.
With this case we determine whether a lender that charges a fee for the completion of standard mortgage documents engages in the unauthorized practice of law under MCL 450.681. The Court of Appeals held that the lender is so engaged and reversed a circuit court order granting summary disposition in favor of defendant. We conclude that such conduct does not constitute the practice of law and, accordingly, reverse the Court of Appeals judgment and reinstate the circuit court order in favor of defendant.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, plaintiffs obtained from defendant Ameribank a real estate loan secured by a mortgage on their home. In connection with the loan, the bank prepared an adjustable rate note and a mortgage. On its settlement statement, it designated a $400 fee for “document preparation.” It provided written material to plaintiffs stating that the document preparation fee was “a separate fee that some lenders charge to cover their cost of preparation of final legal papers, such as a mortgage, deed of trust, note or deed.”
Plaintiffs brought suit alleging that the charging of a fee for completing the mortgage documents constituted the unauthorized practice of law and violated the Michigan Consumer Protection Act (mcpa), MCL 445.901 et seq. In March of 1999, the case was certified as a class action to provide potential relief for other borrowers who also had been charged a document preparation fee by lending institutions.
The circuit court granted summary disposition to defendant under MCR 2.116(C)(10) and denied reconsideration. On appeal to the Court of Appeals, plaintiffs again argued that defendant’s assessment of a document preparation fee constituted the unauthorized practice of law. The Court of Appeals ruled for the plaintiffs, noting that the statutes governing the unauthorized “practice of law” do not specifically define that term and that this Court has never decided the issue. It held that the charging of a separate fee for the preparation of legal documents by an interested party constitutes the unauthorized practice of law. It held, also, that neither of the exceptions to the statutes proscribing the unauthorized practice of law applied to defendant’s conduct.
The Court of Appeals concluded that defendant had violated the mcpa and the Savings Bank Act (sba), MCL 487.3101 et seq. Because the trial court had erred in dismissing plaintiffs’ claims of unauthorized practice of law, the Court reasoned, it erred also in dismissing the sba and mcpa claims. Basic to these conclusions was the determination that, because defendant was engaged in the unauthorized practice of law, its activities were proscribed by the Credit Reform Act’s prohibition on excessive fees. MCL 445.1857(3). Consequently, given that the fees were excessive under the Credit Reform Act, they were not authorized by the sba. MCL 487.3430(l)(a).
Similarly, the Court of Appeals concluded that, because defendant was in violation of the sba, plaintiffs’ claims under the mcpa were also valid. MCL 445.904(2)(d); see also Smith v Globe Life Ins Co, 460 Mich 446, 467; 597 NW2d 28 (1999). Thus, the Court of Appeals reversed the order of the circuit court and remanded the case. We granted leave to appeal.
II. STANDARD OF REVIEW
Issues concerning the proper interpretation of statutes are questions of law that we review de novo. Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 569; 592 NW2d 360 (1999). Similarly, this Court applies a de novo standard when reviewing motions for summary disposition made under MCR 2.116(C)(10), which tests the factual support for a claim. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). We consider the facts in the light most favorable to the nonmoving party, in this case, the plaintiffs. Smith, supra at 454.
III. INTERPRETING THE UNAUTHORIZED PRACTICE OF LAW STATUTES
In Michigan, the practice of law is regulated by statute. MCL 450.681 provides, in part:
It shall be unlawful for any corporation or voluntary association to practice or appear as an attorney-at-law for any person other than itself in any court in this state or before any judicial body, or to make it a business to practice as an attomey-at-law, for any person other than itself ....
It is the cardinal principle of statutory construction that courts must give effect to legislative intent. Omelenchuk v City of Warren, 466 Mich 524, 528; 647 NW2d 493 (2002). When reviewing a statute, courts must first examine the language of the statute. If the intent of the Legislature is clearly expressed by the language, no further construction is warranted. Helder v Sruba, 462 Mich 92, 99; 611 NW2d 309 (2000).
In the past, this Court concluded that it is impossible to formulate a specific and enduring definition of the practice of law “ ‘for the reason that under our system of jurisprudence such practice must necessarily change with the everchanging business and social order.’ ” State Bar of Michigan v Cramer, 399 Mich 116, 133; 249 NW2d 1 (1976), quoting Grand Rapids Bar Ass’n v Denkema, 290 Mich 56, 64; 287 NW 377 (1939). We disagree with that conclusion.
Although formidable, the task of formulating a definition of the practice of law is not impossible. The full meaning of the language in MCL 450.681, and in its sister provisions, prohibiting the unauthorized “practice of law” and engagement in the “law business” may not be immediately apparent. However, the language is capable of being construed. In order to accomplish that, we review the purposes of the unauthorized practice of law statutes.
These purposes are discemable from the regulations governing the legal profession that preceded and coincided with the enactment of the statutes. From them, it is possible to extrapolate a sufficiently accurate definition of the “practice of law” to guide parties in their dealings with each other.
A. THE PURPOSE OF THE UNAUTHORIZED PRACTICE OF LAW STATUTES
Regulation of the legal profession began early in the English legal tradition. See, generally, 1 Pollock & Maitland, History of English Law (Boston: Little, Brown, & Co, 2d ed, 1899), pp 211-217; Baker, An Introduction to English Legal History (London: Butterworths, 3d ed, 1990), pp 21, 179. In our nation, also, regulation of the practice of law has been an innate characteristic of the legal tradition. See Pound, The Lawyer from Antiquity to Modem Times (St Paul: West, 1953), pp 130, 135-136; see, e.g., 2 Works of John Adams (Boston: Little & Brown, 1850), pp 45-50.
In the period between the American Revolution and the Civil War, however, regulation of the profession receded. By the turn of the last century, increasing concern had developed that the spread of unlicenced practitioners was harmful to the profession and dangerous to the public. See Comment, Unauthorized practice of law — The full service bank that was: Bank cashier enjoined from preparing real estate mortgages to secure bank loans, 61 Ky L J 300, 303-304 (1972).
Thus, at the time our unauthorized practice of law statutes were enacted, there was a trend toward restoring the organized bar as a means of regulating the practice of law. At the core of this movement and of all other attempts to regulate the practice was an interest in protecting the public from the danger of unskilled persons practicing law. See Comment, supra at 301-302, 304. It became the basic purpose for our unauthorized practice statutes. As we stated in Cramer, “ ‘Laymen are excluded from law practice . . . solely to protect the public.’ ... It is this purpose of public protection which must dictate the construction we put on the term ‘unauthorized practice of law.’ ” Id., at 134, quoting Oregon State Bar v Security Escrows, Inc, 233 Or 80, 87; 377 P2d 334 (1962).
Having discerned the purpose of the statutes, we now explore the extent of their reach. In this regard, we find persuasive the analysis of the trial judge in this case, Judge Dennis Kolenda.
B. CONDUCT PROSCRIBED BY THE STATUTES
Judge Kolenda noted:
Some activities are plainly the practice of law. “ ‘It is too obvious for discussion’ ” that “ ‘the conduct of cases in courts’ ” is the practice of law, as is “ ‘tire preparation of pleadings and other papers incident to actions . . . and the management of such actions and proceedings on behalf of clients before judges and courts . . . [.]’ ” Detroit Bar Assn v Union Guardian Trust Co, 282 Mich 216, 222[ 276 NW 365] (1937), quoting In re Duncan, 83 SC 186; 65 SE 210 (1909); and Denkema, [supra] at 63. Doing those things, at least doing them well, demands the unique training and skills of an attorney. It is likewise obvious that, for the same reason, the practice of law includes “the giving of legal advice in any action taken for others in any matter connected with the law,” [id.] at 63, even though unrelated to any action in court. Much of what lawyers do is “ ‘performed outside of any court and [has] no immediate relation to proceedings in court,’” [id.] at 64, quoting Opinion of the Justices, 289 Mass 607, 613; 194 NE 313 (1934), and giving competent legal advice requires a lawyer’s training and skill.
More problematic is the drafting of documents. In Denkema, supra [at 63], our Supreme Court said that the practice of law includes “the preparation of all legal instruments of all kinds whereby a legal right is secured,” and in Detroit Bar Assn, [supra] at 221, that Court quoted holdings from other courts which included within the practice of law “ ‘the drafting of legal documents of all kinds. [...]’ ” Very significantly, however, the Court prefaced those quotations with the reservation, “[w]ithout giving full sanction thereto,” Id., and a careful reading of those and subsequent cases discloses that such a broad definition has never actually been applied in this State. Only some documents, e.g., wills, have actually been held to constitute the practice of law, [Denkema, supra] at 65. When composing a document requires “the determination of the legal effect of special facts and conditions,” that activity is the practice of law, [Ingham Co Bar Ass’n v Walter Neller Co, 342 Mich 214, 228; 69 NW2d 713 (1955) (citations omitted).] “[Profound legal knowledge [is] necessary” to properly draft such documents. Detroit Bar Assn, [supra] at 223 (citations omitted).
The practice of law does not, on the other hand, encompass drafting “the ordinary run of agreements [used] in the every day activities of the commercial and industrial world,” Detroit Bar Assn, [swpra] at 229. Legal training and knowledge are not necessary to properly compose them. Drafting simple documents, which drafting does not entail giving advice or counsel as to their legal effect and validity, is not the practice of law. Denkema, [supra] at 66. Specifically, the preparation of ordinary leases, mortgages and deeds do not involve the practice of law, [Walter Neller Co, 342 Mich 226-227.] They have become “ ‘so standardized that to complete them for usual transactions requires only ordinary intelligence rather than legal training.’ ” Id. at 224, quoting Hulse v Criger, 363 Mo 26, 44; 247 [SW2d] 855 (1952). To insist that only a lawyer can draft such documents would impede numerous commercial transactions without protecting the public, [id,.] at 229, i.e., would not further the purpose of restricting the practice of law to trained and licensed attorneys. Cramer, [supra] at 133.
Hence, our courts have consistently rejected the assertion that the Legislature thought that a person practiced law when simply drafting a document that affected legal rights and responsibilities. Walter Neller, 342 Mich 228-229; Cramer, 399 Mich 133. Instead, our courts have found a violation of the unauthorized practice of law statutes when a person counseled another in matters that required the use of legal knowledge and discretion. We agree and reiterate that a person engages in the practice of law when he counsels or assists another in matters that require the use of legal discretion and profound legal knowledge.
This definition is in accord with the purpose of the statutes, the protection of the public. It maintains the integrity of the legal profession without overburden ing our normal economic activities with unnecessary restrictions. Also, it provides parties with a commonsense approach to conforming their conduct so as to avoid committing the unauthorized practice of law.
IV. APPLICATION OF THE STATUTES
Plaintiffs contend that defendant’s activities constituted the unauthorized practice of law because they affected plaintiffs’ legal rights and responsibilities. Plaintiffs also contend that defendant’s decision to charge a fee for its services compels a holding that it engaged in the practice of law and the “law business.”
As we noted previously, the preparation of ordinary mortgages is not the practice of law. Plaintiffs do not assert that the bank’s preparation of their mortgage document was in conjunction with anything other than an ordinary transaction in the normal course of the bank’s business. The bank’s employees did not draft the mortgage document. They merely completed a standard form document that the federal government compiled and that is readily available to the public.
In performing the act of completing the standard form mortgage, defendant was acting as an amanuen sis, a kind of secretary for plaintiffs. No legal knowledge or discretion was involved in the document’s completion. The bank did not counsel plaintiffs with regard to the legal validity of the document or the prudence of entering into the transaction. In general, the completion of standard legal forms that are available to the public does not constitute the practice of law. State Bar of Michigan v Kupris, 366 Mich 688, 694; 116 NW2d 341 (1962); see also Denkema, 290 Mich 68; Walter Neller, 324 Mich 222. Accordingly, defendant was not practicing law when it completed the mortgage form at issue in this case.
Moreover, because defendant was not practicing law when it completed the mortgage, it was not engaged in the “law business.” It is immaterial that it charged a fee for its services. Charging a fee for nonlegal services does not transmogrify those services into the practice of law.
CONCLUSION
We hold that a person engages in the practice of law when he counsels or assists another in matters that require the use of legal discretion and profound legal knowledge. Defendant completed standard mortgage forms for plaintiffs and charged a fee for the service. But it did not counsel or assist plaintiffs in matters requiring legal discretion or profound legal knowledge. Therefore, it did not engage in the practice of law and did not violate MCL 450.681. Accordingly, we reverse the Court of Appeals decision and reinstate the circuit court order granting summary disposition in favor of defendant.
Corrigan, C.J., and Cavanagh, Taylor, Young, and Markman, JJ., concurred with Kelly, J.
United States Department of Housing & Urban Development, Buying Your Home (Washington, DC: United States Government Printing Office, 1997), p 19.
MCL 450.681 and MCL 600.916.
The Court of Appeals specifically held that the pro se and “as otherwise authorized by law” exceptions to the statute did not apply. 247 Mich App 133; 635 NW2d 328 (2001).
MCL 600.916 prohibits individuals, as opposed to corporations, from engaging in the unauthorized practice of law or the law business.
See, e.g., Ind Const 1851, art VII, § 21 (“Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice.”)
As used in this opinion, “person” refers to any legal entity.
A report by the American Bar Association’s Task Force on the Model Definition of the Practice of Law supports our conclusion that this definition comports with the general purpose for regulating the practice of law. The Task Force reviewed the regulation of the practice of law among the several states and ultimately recommended “that every jurisdiction adopt a definition of the practice of law . . . [that] include [s] the basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.” See Report of the American Bar Association Task Force on the Model Definition of the Practice of Law to the House of Delegates, http://www. abanet.org/cpr/model-defitaskforce_rpt_429.pdf. (accessed June 11, 2003).
Plaintiffs’ reliance on Walter Neller and Kupris for the proposition that charging a fee for a law-related service constitutes the practice of law is misplaced.
In Walter Neller, we remarked that a realtor who charged a separate fee for a real estate closing might be engaged in the practice of law. However, the holding in the case was that the defendant was not practicing law by completing and executing form documents that were incidental to his business.
In Kupris, the defendant real estate broker was enjoined from advising another broker and that broker’s clients in the preparation of a chattel mortgage. The fact that the defendant had charged a fee for the service does not bind that case to this. Rather, what distinguishes Kupris from both Walter Neller and this case is that there the defendant took upon himself the role of advising others about the legal effect of a document. Kupris, 366 Mich 692-693.
Because the discussions about charging a fee were not necessary to the resolution of either case, they are obiter dicta Thus, neither discussion constitutes a holding to which the binding principle of stare decisis is applied. People v Bouchard-Ruhland, 460 Mich 278, 286 n 4; 597 NW2d 1 (1999), citing Roberts v Auto-Owners Ins Co, 422 Mich 594, 596; 374 NW2d 905 (1985). | [
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Corrigan, C.J.
We granted leave to appeal to consider whether an order reimbursing the state for the cost of caring for defendant, a prison inmate, violates the Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq. The trial court ordered defendant to receive his pension benefits at his prison address and directed the warden to appropriate the funds from defendant’s prison account under the State Correctional Facility Reimbursement Act (scfra), MCL 800.401 et seq. The Court of Appeals reversed because subsection 1056(d)(1) of ERISA prohibits an assignment or alienation of pension benefits.
We hold that the trial court’s order did not violate the federal statute. An order requiring a prisoner to receive his pension benefits at his current address is not an assignment or alienation of those benefits. Moreover, once the funds are in the inmate’s account, the warden may distribute them under the scfra. The federal ban on alienation or assignment of pension funds does not extend to benefits that the pensioner has already received. We thus reverse the judgment of the Court of Appeals and reinstate the trial court’s judgment.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The State Treasurer filed a complaint under the scfra seeking to recover the costs of confining defendant Thomas K. Abbott, a prisoner under the jurisdiction of the Michigan Department of Corrections. Plaintiff submitted documentation of the costs it has incurred and expects to incur in caring for defendant during his incarceration. Plaintiff argued that defendant’s monthly pension payments should be sent to his prison address, deposited in his prison account, and appropriated by the warden. The trial court ordered defendant to show cause why the funds should not be appropriated. Defendant filed a responsive pleading.
After reviewing the pleadings, the trial court ordered defendant to direct his monthly pension proceeds to his prison address. The court further ordered the warden to provide $20 of each payment to defendant, with the remainder divided between defendant’s wife (sixty-seven percent) and the state (thirty-three percent). In addition, the court ordered the pension plan to send the benefit payments to defendant’s “new address of record” in prison in the event that defendant failed to direct the plan to do so.
Defendant subsequently filed a pleading entitled a “writ of mandamus.” The trial court treated the “writ of mandamus” as a motion for reconsideration and denied it. Defendant filed a delayed application for leave to appeal, which the Court of Appeals denied for lack of merit in the grounds presented. Defendant then applied for leave to appeal to this Court. In lieu of granting leave to appeal, we remanded the case to the Court of Appeals for consideration as on leave granted. In a published opinion, the Court of Appeals held that ERISA barred the deposit of funds into defendant’s prison account. Plaintiff filed an application for leave to appeal to this Court, which we granted.
II. THE COURT OF APPEALS OPINION
In concluding that the trial court’s order violates erisa’s antialienation provision, the Court of Appeals relied on State Treasurer v Baugh, 986 F Supp 1074 (ED Mich, 1997). In Baugh, the State Treasurer sought an order under the SCFRA directing a pension plan to deposit benefits into an inmate-beneficiary’s prison account. The federal district court held that erisa preempted such an order:
The Court agrees that once pension benefits are placed in a personal account, erisa no longer operates to protect those funds. However, in the instant case, defendant Chrysler Corp. would not be voluntarily depositing the pension funds into [the inmate’s] personal prisoner account but would be doing so only by court order. Such an involuntary transfer clearly constitutes an assignment. [Id. at 1077 (citation deleted).]
The Court of Appeals followed Baugh:
There is no dispute that directly garnishing defendant’s pension benefits to reimburse the state would violate the erisa’s antialienation provision. Baugh, supra. Plaintiff attempts to distinguish Baugh by asserting that plaintiff did not make a claim against the pension plan in this case and did not seek an order compelling the plan to do anything. Plaintiff argues that ordering defendant to direct his pension to be sent to his prison address is consistent with Baugh and does not violate the erisa. This argument fails for two reasons. First, defendant did not voluntarily change his pension address to his prison address and did not voluntarily have the pension funds deposited into his personal prisoner account, but rather was ordered by the court to do so. The court’s order effectively required the pension fund to make the pension payment to defendant’s prison account against defendant’s will. Such an involuntary transfer clearly constitutes an assignment and conflicts with the erisa’s antialienation provision. Second, if defendant refuses to direct the pension fund to pay the benefits to his prison account, the only method of ensuring that the benefits reach the prison account is by reliance on the order directing the fund to send the money to the prison, just as in Baugh. [249 Mich App 107, 113; 640 NW2d 888 (2001).]
III. STANDARD OF REVIEW
Whether the trial court’s order effectuates an alienation or assignment of pension funds under 29 USC 1056(d)(1) is a question of law. We review questions of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
IV. PRINCIPLES OF INTERPRETATION
This case requires us to interpret a federal statutory provision. Where a federal statute clearly addresses the issue at hand, we apply the statute as written. If, however, the text is silent or ambiguous regarding the issue before the Court, we must defer to a federal agency’s interpretation if it is based on a permissible construction of the statute. Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).
V. DISCUSSION
The trial court’s order requires that (1) defendant receive his monthly pension payments at his prison address and (2) the warden distribute the funds after their deposit in defendant’s prison account. We conclude that this arrangement does not alienate or assign the pension proceeds in violation of ERISA.
We note initially that the SCFRA permits the trial court to provide reimbursement to the state from “assets” owned by a prisoner for expenses incurred in caring for the prisoner. MCL 800.404(3). The statute defines “assets” to include “income or payments to such prisoner from . . . pension benefits . . . .” MCL 800.401a.
It is not disputed that the trial court’s order was proper under the scfra. The question presented is whether erisa’s prohibition on assignment and alienation of pension benefits supersedes the scfra in this case.
A. RECEIPT OF THE FUNDS AT DEFENDANT’S PRISON ADDRESS
Erisa’s antialienation provision states: “Each plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 USC 1056(d)(1). To determine whether the order requiring defendant to receive pension benefits at his prison address alienates or assigns those benefits, we must discern the meanings of the statutory terms.
Erisa does not define the terms “alienate” and “assign.” Because the federal statute is silent on the question presented, we defer to a federal agency’s definition. Chevron, supra. The Treasury Department has defined the term “assignment” as “[a]ny direct or indirect arrangement (whether revocable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the partici pant or beneficiary.” 26 CFR 1.401(a)-13(c)(l). This definition plainly contemplates a transfer of the interest to another person, i.e., a person other than the beneficiary himself Sending a pension payment to a beneficiary at his own address, and depositing it in his own account, does not assign that payment. Neither the warden nor any other third person acquires a right or interest enforceable against the plan when the pension proceeds are sent to defendant at his current address.
A property interest is assigned or alienated when it has been transferred to another person. The trial court here did not order defendant to have his pension proceeds sent to another person’s address. On the contrary, the court ordered defendant to receive the benefits at his own address. Moreover, the deposit of the funds into defendant’s prison account did not transfer any legal title to, or interest in, the funds to another person. The warden’s access to defendant’s account does not alter the fact that the account is in defendant’s name. Legal title was not conveyed to the warden or to any other person when the funds were deposited in defendant’s account.
We respectfully decline to follow the federal district court’s opinion in Baugh. The Baugh court held that “an order by this Court forcing [a pension plan] to deposit pension funds into an [inmate’s prison] account from which [the state] may withdraw monies clearly operates as an assignment.” Baugh, supra at 1077. The Baugh court characterized the transfer of the funds to the inmate’s prison account as an assignment because it was “involuntary.” The involuntary nature of a deposit does not establish an assignment unless a person other than the beneficiary acquires a right or interest enforceable against the plan. An assignment does not occur where the pension proceeds are sent to the pensioner’s current address and deposited into his own account.
The dissent argues that an assignment or alienation occurred because the pension fund itself was directed to send the benefit payments to defendant’s prison address in the event that defendant did not ask the fund to do so. The dissent’s argument ignores the Treasury Department’s definition of the term “assignment.” The federal statute would be violated if the court had ordered the fund to send the payments to another person, i.e., to a person other than defendant, and thereby granted a right or interest enforceable against the plan to that third person. Thus, if the court had ordered the pension fund to distribute the payments directly to the state of Michigan, an assignment or alienation would result. Here, however, the court ordered the funds to be sent to defendant himself at his current address and deposited in his own account. Because defendant thus receives the funds, no assignment or alienation occurs.
B. APPROPRIATION OF THE FUNDS AFTER DEPOSIT IN DEFENDANT’S ACCOUNT
We next consider whether the distribution of pension funds after they are deposited in defendant’s account contravenes ERISA. The prevailing view is that erisa does not protect pension funds after the beneficiary receives them. We adopt this view and hold that erisa does not preclude distribution pursuant to the SCFRA after the funds are deposited in an inmate’s account.
The leading case on this subject is Guidry v Sheet Metal Workers, 10 F3d 700 (CA 10, 1993) (Guidry II), mod on reh 39 F3d 1078 (CA 10, 1994) (Guidry III). In these Guidry cases, a former union official pleaded guilty of embezzling funds from his union. The union asserted an interest in the embezzler’s pension benefits. The federal district court granted the union a constructive trust against the pension plan, thus preventing the beneficiary from receiving the funds. On its review, the United States Supreme Court held that this remedy violated erisa’s prohibition of alienation and assignment. Guidry v Sheet Metal Workers, 493 US 365; 110 S Ct 680; 107 L Ed 2d 782 (1990) (Guidry I).
On remand, the district court granted a different remedy: garnishment of the pension benefits after their deposit in the beneficiary’s account. The United States Court of Appeals for the Tenth Circuit affirmed the garnishment order and held that it did not violate ERISA. Guidry II, supra at 716. The court determined that the text of subsection 206(d)(1), now subsection 1056(d)(1), (“[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated”) was unclear. The statute was ambiguous regarding whether the term “benefits” refers to “the right to future payment or the actual money paid under the plan and received by the beneficiary.” Guidry II, supra at 708.
In light of this ambiguity, the Guidry II court deferred to the Department of Treasury’s reasonable interpretation of the statute. The department’s ERISA regulations define “assignment” and “alienation” as “ ‘any direct or indirect arrangement (whether revocable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.’ ” Guidry II, supra at 708, quoting 26 CFR 1.401(a)-13(c)(l)(ii) (emphasis added). The regulations .refer to a right or interest enforceable against the plan.
[The union] seeks only to enforce a judgment against Mr. Guidry by garnishing his bank account containing pension benefits paid and received; [the union] does not seek to enforce an interest or right against the plan. Because garnishment of Mr. Guidry’s received retirement income is not an action against the plan, we conclude it is not prohibited by erisa 206(d)(1) as implemented by the ERISA Regulations. [Guidry II, supra at 710.]
The Guidry II court opined that the Treasury Departmént’s interpretation was reasonable. The court rioted that other statutes expressly protect benefits after they are received. For example, the Social Security Act, 42 USC 407(a), provides that “none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution,' levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” (Emphasis added.) Also, the Veterans’ Benefits Act, 38 USC 5301(a), expressly precludes attachment or seizure of benefits “either before or after receipt by the beneficiary.” The Guidry II court concluded;
Because Congress did not include similar explicit language protecting benefits in the related context in erisa, we infer Congress made a deliberate decision [that] retirement income paid and received was not thereafter protected from garnishment. A similar argument was made by then Judge Kennedy writing for the Ninth Circuit in denying application of the anti-garnishment provision of the Consumer Credit Protection Act to wages that had been paid. Usery [v First Nat’l Bank of Arizona, 586 F2d 107, 111 (CA 9, 1978)]. Although not conclusive, the absence of explicit language extending to paid benefits supports the erisa Regulations. [Guidry II, supra at 712. ]
Several courts have followed the Guidry II decision. See, e.g., Trucking Employees of North Jersey Welfare Fund, Inc v Colville, 16 F3d 52, 56 (CA 3, 1994) (agreeing with Guidry II that the Treasury Department regulation reasonably “construes the statute to forbid alienation of rights to future payments, rather than alienation of the actual money paid out”), and State v Pulasty, 136 NJ 356; 642 A2d 1392 (1994) (holding that ERISA did not preempt a state restitution order because received pension benefits are subject to judgment). But see United States v Smith, 47 F3d 681 (CA 4, 1995) (declining to follow Guidry II and holding that pension benefits that had been received were not subject to restitution).
Of particular interest is the decision in Wright v Riveland, 219 F3d 905 (CA 9, 2000). In Wright, a class of inmates sued the state of Washington’s department of corrections, challenging the deduction of pension funds from the inmates’ accounts to pay for the costs of incarceration under a state statute. The United States Court of Appeals for the Ninth Circuit held that ERISA’s antialienation provision did not prohibit the deductions. The court found that subsection 206(d)(1) was unclear regarding whether it prohibits the alienation or assignment of funds after they are distributed to the beneficiary. The court then discussed the Treasury Department regulation and Guidry II, Colville, and Smith, and found Guidry II and Colville more persuasive than Smith.
Accordingly, we follow the lead of the Third and Tenth Circuits. We conclude that [the Treasury regulation’s] interpretation of [subsection] 206(d)(1) is not arbitrary, capricious, or manifestly contrary to the statute and hold, based on the regulation’s interpretation of [subsection] 206(d)(1), that this section does not preclude the Department from deducting funds pursuant to the [state of Washington] Statute from benefits received from ERISA-qualified pension plans. [ Wright, supra at 921. ]
We also prefer the approach adopted by the overwhelming majority of federal courts. Once pension funds are deposited in an inmate’s account, erisa does not protect them. We agree with the Guidry II court that the text of subsection 206(d)(1) does not address whether benefits that the pensioner has already received are protected. The statute’s silence on this issue requires deference to the reasonable interpretation set forth in the Treasury Department regulation. Guidry II, supra; Chevron, supra. That regulation clarifies that the statute protects against the alienation or assignment of rights against the plan itself. Other statutory schemes, including the Social Security Act, clearly protect benefits after their receipt. Congress did not include such expansive language in ERISA.
The Ninth Circuit Court of Appeals decision in Wright directly supports our decision. It expressly rejected an erisa challenge to a state statute that permitted deduction of pension funds from an inmate’s account to pay for the costs of incarceration.
While courts may not create exceptions to ERISA’s prohibition on assignment and alienation, Guidry II and its progeny do not create exceptions. They hold merely that the statutory prohibition does not apply after the funds have been received. The dissent asserts without any apparent basis that we have created an exception. In truth, we merely follow the prevailing federal authorities and hold that the appropriation of funds that have been received does not alienate or assign those funds. Where no alienation or assignment has occurred, the statutory prohibition does not apply. We have no occasion or need to “carve out exceptions” to a statutory prohibition that does not apply.
Defendant received the pension funds when they were sent to his current address and deposited in his prison account. At that point, erisa did not protect the funds, and the state was free to seize and distribute the funds in accordance with the procedures set forth in the SCFRA and the trial court’s order in this case.
VI. CONCLUSION
The SCFRA sets forth procedures to reimburse Michigan taxpayers for the costs of caring for prison inmates under the jurisdiction of the Department of Corrections. An inmate’s pension benefits in his account are “assets” that are subject to the SCFRA. The federal prohibition on alienation and assignment of pension benefits is not violated where an inmate is directed to receive pension benefits at his own address. Further, prevailing federal authorities estab lish that erisa does not protect pension proceeds that an inmate has already received. The state may distribute the funds after they are deposited in the inmate’s account to the extent permitted under the scfra. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s decision.
Weaver, Taylor, and Young, JJ., concurred with Corrigan, C.J.
We will refer to Thomas Abbott as “defendant.” The other defendants in this case are not involved in this appeal.
The documentation reflects that the state expects to incur approximately $479,490 in caring for defendant during his incarceration. Defendant began serving his sentence in 1996. His earliest possible release date is in 2015.
Unpublished order, entered December 4, 1998 (Docket No. 209836).
461 Mich 911 (1999).
249 Mich App 107; 640 NW2d 888 (2001).
466 Mich 860 (2002).
It is not disputed that defendant’s pension plan is covered by erisa.
Moreover, we note that the accepted legal meanings of the terms “assignment” and “alienation” are consistent with the Treasury Department definition of “assignment.” Black’s Law Dictionary (6th ed) defines “assignment” as:
The act of transferring to another all or part of one’s property, interest, or rights. A transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein. It includes transfers of all kinds of property, including negotiable instruments. [Emphasis added; citation omitted.]
See also Allardyce v Dart, 291 Mich 642, 644-645; 289 NW 281 (1939):
In 4 Am Jur, p 229, an assignment in law is defined as “A transfer or setting over of property, or some right or interest therein, from one person to another, and unless in some way qualified, it is properly the transfer of one’s whole interest in an estate, or chattel, or other thing. It is the act by which one person transfers to another, or causes to vest in another, his night of property or interest then-ein.”
The American Law Institute has defined an assignment of a right in its Restatement of the Law of Contracts, p 171, § 149(1), as “[a] manifestation to another person by the owner of the right indicating his intention to transfer, without further action or manifestation of intention, the right to such other person or to a third person.”
This court has defined the word “assignment” in the language of Webster as meaning “to transfer or make oven* to another," and in the language of Burrill’s Law Dictionary as “to malte oven or set over to another, to transfer.” Aultman, Miller & Co v Sloan, 115 Mich 151, 153 [73 NW 123 (1897)]. [Emphasis added.]
The term “alienation” similarly refers to a “conveyance or transfer of property to another. ” Black’s Law Dictionary (7th ed) (emphasis added).
The dissent asserts that the warden obtains a property interest in the funds before depositing them in defendant’s prison account. The trial court’s order, however, compels the warden to deposit the funds in defendant’s prison account, thus ensuring that defendant receives the funds before they are distributed under the scfra. The warden essentially acts as a bank teller — he must deposit the funds in defendant’s account upon receipt. Thus, the warden does not obtain any interest in, or title to, the pension funds before depositing them in defendant’s account and has no discretion or right to use the funds.
The dissent observes that the trial court’s order refers to the warden as a “receiver.” This language in the order does not alter our conclusion that an assignment has not occurred.
Fundamentally, a receiver is not an assignee. The terms have separate legal mganings. Black’s Law Dictionary (7th ed) defines a “receiver” as “[a] disinterested person appointed by a court, or by a corporation or other person, for the protection or collection of property that is the subject of diverse claims (for example, because it belongs to a bankrupt or is otherwise being litigated).” By contrast, an “assignee” is “[o]ne to whom property rights or powers are transferred by another.” Id. Erisa does not state that a court may not protect and preserve funds that are subject to dispute.
Moreover, the warden does not act as a receiver when he deposits the funds in defendant’s account. We are not bound by the label used by the trial court when describing the warden’s role.
A receiver is an officer of the court who protects and preserves property on behalf of the parties to a pending lawsuit. 65 Am Jur 2d, Receiv ers, § 1, p 654. The purpose of a receivership is to protect the parties’ rights to the property until a final disposition of the issues. Id., § 6, p 657. A receiver also may control and manage property. 19 Michigan Law & Practice (1957), Receivers, § 1, p 351.
The characteristics of a receivership are not present here. The warden does not manage, control, or even preserve the funds. His legal duty is to place the pension benefits in defendant’s account.
If the warden were a receiver, he still would not acquire a property interest:
As a general rule it may be stated that property in the possession of a receiver is in the custody of the law, and the receiver’s possession is the possession of the court for the benefit of those ultimately entitled.
A receiver’s possession of chattels does not of itself confer title on the receiver, or give the receiver, as distinguished from the court appointing him, an absolute right of possession, or determine or even affect the rights of the parties except so far as it preserves and retains control of the property to answer the final judgment. A receiver’s right, being purely for the purposes of the suit, cannot outlast the suit or be used for any purpose not justified thereby. [19 Michigan Law & Practice, supra, § 41, p 382.]
Also, a receiver “is appointed to subserve the interests of all persons interested in the subject-matter committed to his care. A receiver, by his appointment, does not become a litigant in, or party to, the suit in which he is appointed.” Id., § 51, p 388. The appointment of a receiver does not affect parties’ contractual rights. Rowe v William Ford & Co, 257 Mich 646, 650; 241 NW 889 (1932).
Assuming the warden were a receiver, he would have no greater title or interest than the court itself. The court’s order merely requires the pension fund to mail the checks to defendant’s prison address, where the warden deposits the funds in defendant’s account. The warden does not acquire a property interest in the funds when they arrive at the prison. The dissent has not identified any property interest that it believes the warden acquires.
The modification of the opinion on rehearing in Guidry III did not affect the original panel’s holding regarding the erisa issue.
The Guidry II court also noted that the law of the case doctrine did not apply. The Supreme Court’s opinion in Guidry I “did not explicitly decide in dicta that its holding with respect to the constructive trust extended as well to benefits paid from the plan and received by the participant.” Guidry II, supra at 706.
Also, on rehearing in Guidry III, the Tenth Circuit Court of Appeals, sitting en banc, “affirm[ed] the primary holding of the Guidry II panel and conclude[d] erisa section 206(d)(1) protects ERISA-qualified pension benefits from garnishment only until paid to and received by plan participants or beneficiaries." Guidry III, supra at 1083.
See also anno: Effect of anti-alienation provisions of [erisa] on rights of judgment creditors, 131 ALR Fed 427-463 (collecting authorities).
The dissent suggests that the trial court’s order is similar to the scheme struck down by the United States Supreme Court in Guidry I. Guidry I, however, involved a constructive trust imposed on the pension fund itself. Guid'ry II and its progeny make clear that funds that are appropriated after the beneficiary receives them are no longer protected by erisa’s antialienation clause. In this case, the pension fund itself is not garnished, nor is a constructive trust imposed on the fund. Rather, the fund is merely required to send the pension funds to defendant himself at his current address, where the funds are then deposited directly in defendant’s own account. At that point, defendant has received the funds, and, as the overwhelming majority of federal courts have held, the funds are no longer protected by erisa.
The United States Supreme Court’s reasoning in Guidry I supports the distinction drawn by federal courts between garnishments from plans and appropriation of funds that the beneficiary has already received. The Guidry I Court noted that the policy underlying the antialienation clause is “to safeguard a stream of income for pensioners . . . .” Guidry I, supra at 376. Once the benefits are received, the stream of income has safely reached the pensioner. In light of this language, the Tenth Circuit Court of Appeals in Guidry II determined that the law of the case did not preclude the garnishment of funds deposited in the beneficiary’s bank account: “As [Guidry I\ refers only to a ‘stream of income’ that must be received, and not to the disposition of the income after it was received, we fail to see how the ‘law of the case’ bars garnishment of received income. The payments do not lose their character as income because they are used to satisfy debts.” Guidry II, supra at 706. Nearly every federal court has adhered to this view. | [
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Corrigan, C.J.
We granted leave to appeal to consider whether the trial court abused its discretion in denying defendant’s motion for relief from judgment on the basis of a new, third-party confession. We hold that the trial court did not abuse its discretion when it concluded that the third-party confessor was not credible and that the confession, therefore, did not make a different result probable on retrial. The trial court’s decision necessarily hinged on determinations of credibility and was supported by the evidence. The Court of Appeals impermissibly substituted its judicial opinion for that of the trial court. We thus reverse the judgment of the Court of Appeals and reinstate the trial court’s order denying relief from judgment.
I. FACTUAL AND PROCEDURAL HISTORY
In 1985, a jury convicted defendant of first-degree felony murder, MCL 750.316, in the death of seventeen-year-old Patty Rosansky. The victim’s body had been found in a ravine covered by a refrigerator door. Two pieces of tree limbs were found in her throat, and the autopsy revealed that the cause of death was a brain injury resulting from one or more blows to the head with a club-like object. The victim had defensive wounds on her hands and extensive bruising on her legs. She was clothed from the waist up, but was naked from the waist down, with her under wear around her feet. There was evidence of forced anal penetration.
No physical evidence connected defendant to the murder and no eyewitnesses were identified. Rather, the case against defendant consisted primarily of the testimony of several witnesses to whom defendant had admitted murdering the victim. Defendant took the stand and denied that he killed the victim or that he had told anyone that he did so. He stated that he was delivering papers on February 3, 1983, and presented an alibi witness, Doug Moore. Defendant also presented the testimony of people who claimed to have seen the victim with a man other than defendant after the date she disappeared.
The Court of Appeals affirmed defendant’s conviction on direct review. Unpublished opinion per curiam, issued February 4, 1988 (Docket No. 86748). This Court denied leave to appeal. 431 Mich 856 (1988).
In 1997, defendant filed a motion for a new trial on the basis of newly discovered evidence. Although defendant presented three separate arguments in support of his motion, the only argument at issue in this case is that Michael Ronning, an inmate in an Arkansas prison, had admitted murdering the victim.
Battle Creek Police Detective Dennis Mullen first discovered Ronning’s potential involvement while investigating another crime, an August 1982 murder. Ronning was initially reluctant to cooperate, but then agreed to confess to multiple murders in exchange for a transfer to a Michigan prison so he could be closer to his family. Ronning passed a polygraph test in which he admitted committing three homicides in Michigan. During the polygraph test, however, no questions were asked specifically about the murder in this case. In addition to taking the polygraph test, Ronning confessed to the murder in this case. In his confessions, Ronning claimed: (1) Rosansky, the victim, calmly got into Ronning’s car without a struggle and crouched down on the floor while he drove her to Fort Custer; (2) once at the woods, Ronning had Rosansky remove all her clothes except her socks, and they smoked a joint; (3) Rosansky was not dis tressed, but was rather “quite comfortable” with him, even laughing and giggling; (4) he tried to have sex with Rosansky in the car, but specifically remembered that he did not and could not have sex because he “was too loaded up on drugs”; (5) he may have penetrated Rosansky’s vagina with his fingers, but did not penetrate her rectum; (6) when they got out of the car, he followed Rosansky as she walked, holding on to her hair; (7) he strangled Rosansky with his left arm in a headlock-type hold for approximately four minutes; (8) Rosansky did not fight back or struggle in any way; and (9) after he thought Rosansky was dead, he stood over her and threw a rock at her head one time. Ronning also accompanied police on two unsuccessful attempts to locate the scene of the crime. Ronning later signed an affidavit attesting that he alone had murdered Rosansky.
The trial court originally granted defendant’s request for a new trial on the basis of Ronning’s confession. The court held:
It is important to note some observations concerning the trial testimony. There were no eyewitnesses to the murder of Patricia Rosansky. . . . There was absolutely no physical evidence linking the Defendant, Mr. Cress, to this crime. The only evidence connecting him to the crime was the testimony of several witnesses ... all of whom testified that Mr. Cress had admitted to each of them his involvement in Ms. Rosansky’s murder.
* * *
This Court has had the opportunity to review the videotaped statements of Michael Ronning in which he confesses to the murder of Patricia Rosansky. Parts of his statements agree with the established facts in this case, and parts of his statements may not agree with the established facts.
* * *
It appears to this Court that to deny the Motion for a New Trial in this case, one must be able to conclude that Mr. Ronning’s confession is incredible, unbelievable, or simply unsubstantiated by the established facts. This I cannot do for several reasons.
First, there are portions of Mr. Ronning’s statements which do conform to the established facts in this case. Second, although there are parts of his statements which may not be in conformity with the established facts, it must be noted that we are dealing with events which occurred 14 years ago. Given that lapse of time, it is possible that one’s memory of some of the specific details may be sketchy. And finally, there is the testimony at the hearing of Battle Creek Police Detective Dennis Mullen.
Detective Mullen testified that he has been working on this murder case and two others since the 1980s. He stated under oath at the Hearing that he encouraged the Prosecutor’s office to issue an arrest warrant against Michael Ronning for the murder of Patricia Rosansky. The testimony clearly indicates that Detective Mullen, based upon his knowledge of the circumstances surrounding Patricia Rosansky’s murder and his subsequent investigation, believes Mr. Ronning’s confession is true.
It is obvious that Detective Mullen and the Prosecutor’s Office have a difference of opinion concerning the believability of Michael Ronning’s confession. That difference simply indicates to this Court that the Ronning confession cannot be summarily dismissed. Ultimately, at a new trial, the jury may believe Mr. Ronning and acquit Thomas Cress. On the other hand, the jury may totally reject Ronning’s confession and convict Mr. Cress of Murder.
Considering the fact that at Mr. Cress’ trial, there was no physical evidence connecting him to the crime; that his conviction was based solely upon the statements attributed to him by several prosecution witnesses; that some of those witnesses may have recanted their trial testimony; and that Mr. Ronning’s confession cannot be deemed incredible or unbelievable, I believe that the Defendant has met his bur den of establishing the four factors . . . required for granting a new trial....
It will be up to a new jury to weigh all the evidence presented, including Mr. Ronning’s confession, and then determine whether there is evidence beyond a reasonable doubt that Thomas Cress committed the murder of Patricia Rosansky.
The prosecutor applied for leave to appeal to the Court of Appeals. Defendant then filed a motion in the trial court “for evidentiary hearing and dismissal of the charges,” claiming bad-faith destruction of evidence.
The Court of Appeals denied the prosecutor’s application for leave to appeal and stated that the trial court had not abused its discretion in granting defendant a new trial. Referring to evidentiary materials developed after the trial court’s ruling, however, the Court noted that “denial of leave to appeal does not preclude a party from asking the trial court to revisit the merits of its order . . . based on information developed subsequent to such order,” including evidence derived from the forensic testing of the decedent’s remains following exhumation.
The prosecutor moved in the trial court to reopen the proofs regarding defendant’s motion for a new trial. The prosecutor sought to present new evidence attacking the veracity of Ronning’s confession and more evidence regarding the allegedly recanting prosecution witnesses. The trial court granted the prosecutor’s motion. At the hearing, several prosecution witnesses testified that Ronning had told them that he falsely confessed to the victim’s murder. Ronning testified that he killed Rosansky, but refused to answer any questions about the circumstances of the murder, claiming that to do so would somehow violate his agreement with the government. As a result, Ronning’s confessions to the murder of Rosansky have never been given under oath, and have never been subject to the crucible of cross-examination.
After the hearing, the trial court vacated its December 1997 decision and denied defendant’s motion for new trial. The court explained that it no longer found Ronning’s confession persuasive:
The evidence presented since the Court granted the Prosecution’s Motion to Re-open Proofs has established overwhelmingly and convincingly that Michael Ronning is in fact a false confessor to the Patricia Rosansky murder. The primary reasons for this conclusion are as follows:
1. Mr. Ronning stated in his confession that he strangled Ms. Rosansky, and he demonstrated how he struck her one time with a rock to the back of her head. This Court heard from four expert witnesses concerning the blow(s) to her head: two Forensic Anthropologists . . . and two Forensic Pathologists .... Some of the professional opinions of these witnesses are contradictory. When weighing this evidence, one must consider not only the expert’s qualifications (all of which are impeccable), but one must also consider the underlying facts and circumstances giving rise to those opinions. After considering the expert testimony presented in this matter, this Court is convinced that there were in fact multiple blows to the head and neck of Patricia Rosansky. That fact finding is important because although Mr. Ronning is vague and claimed a lack of memory about many details in his description of the murder, he consistently claimed striking her in the head only one time. The expert testimony, whether it be the number of blows to Ms. Rosansky’s head, or the presence of defensive wounds, or the lack of any evidence of strangulation, or the linear, rod-like shape of the object used to strike Ms. Rosansky, all rebut Mr. Ronning’s version of the manner of Ms. Rosansky’s death.
2. There were four people who testified in December, 1998, that at various times over the course of the last several years, Mr. Ronning confided in each of them that he was falsely confessing to this murder in order to do his prison time in Michigan. . . .
It was an acknowledged fact from the outset that Mr. Ronning had a motive to confess to the Rosansky murder
Of those four witnesses, Melissa Meyer was particularly persuasive. Mr. Ronning had been her guardian in 1983-84, and she had a close relationship with him. She testified that Mr. Ronning admitted to her that he had committed the murder in Arkansas. He also told her that his goal was to do his time in Michigan and that he had not committed the murder of Ms. Rosansky. She also testified that Mr. Ronning told her he had obtained information from the secretary of his Michigan attorney, had read some transcripts of the court proceedings in this matter, and had attempted to memorize the facts contained therein. She also testified, based upon her prior relationship with him, that Mr. Ronning is a very intelligent and a very manipulative person.
* * *
The testimony of these four witnesses is a direct attack on Michael Ronning’s believability. It consistently establishes that Mr. Ronning’s confession is self motivated and untrue. After considering the testimony of these four witnesses, their demeanor while testifying, and any motives which may have influenced their testimony, this Court finds that this evidence is credible and believable.
3. Perhaps the most compelling evidence which causes this Court to now conclude that Mr. Ronning is a false confessor comes from Mr. Ronning himself. In April, 1997, Detective Mullen and others had Mr. Ronning attempt to show them where the scene of the crime was. This was videotaped and admitted as Exhibit 54. Although there was evidence that Detective Mullen may have caused some confusion by using the wrong two-track to enter the area, eventually Mr. Ronning did come to an area where he believes the murder occurred. He stated on that videotape that there was a clearing where he could turn his car around. He described where the car would have been, where the body was placed after he strangled her, from which direction he would have thrown the rock, and how far the rock would have gone “with the roll.”
The area Mr. Ronning stated “may very well be the place” is shown on the videotape. Although Mr. Ronning qualified his identification of the crime scene by saying “this could be it” and “this has to be it, but I don’t really recognize it per se,” he nonetheless was firm and definite in stating that if the particular clearing they were in wasn’t it, it nevertheless “was a place like this.” The area where Mr. Ronning believes the murder occurred is a flat piece of ground, a clearing next to a two-track. There are no man-made landmarks in the immediate vicinity.
At the hearing in December, 1998, numerous photographs were admitted into evidence of the scene of the crime taken in 1983. Those photographs clearly show that Ms. Rosansky’s body was not found in a flat, open area as described by Mr. Ronning. Rather, her body was found in a ravine. This ravine was not just a slight indentation in the ground. Each side rose to a height of seven or eight feet, according to the testimony of Trooper Zimmerman. The body was found at the bottom of the ravine, within view of a concrete well station. Mr. Zimmerman testified that the ravine and well station look similar in appearance today, compared to 1983. Indeed, Mr. Zimmerman testified that a metal roof vent shown in the 1983 crime scene photographs is still there. He had no difficulty locating the area where Ms. Rosansky’s body was found.
When one compares the videotape of the area Mr. Ronning concludes was the scene of the crime (or as he said, “it was a place like this”) to the photographs of the scene of the crime, the difference in topography and terrain is dramatic. This is not a situation where Mr. Ronning’s recollection is clouded due to a lapse in time. On the 1997 videotape, Mr. Ronning describes the crime scene based on his recollection. When one compares his description of the crime scene to the actual crime scene, the only reasonable conclusion one can draw is that Mr. Ronning didn’t know where the crime scene was because he did not commit the crime. Indeed, Mr. Ronning was shown the cement well station which is located at the beginning of the ravine about 40 feet from where the body was found. Mr. Ronning said he would have remembered that well station if it had been visible from the scene of the murder. Mr. Zimmerman testified it is easily observable.
The trial court further rejected its prior reliance on Detective Mullen’s opinion that Ronning killed the victim, noting that other police agencies and detectives disagreed with Mullen that Ronning killed three young women in Michigan, including the victim. The trial court also found it significant that Mullen did not investigate the victim’s murder, speak with the state police who had initially investigated the victim’s murder, read defendant’s trial transcript, or speak with witnesses from defendant’s trial or with defendant himself before reaching the conclusion that Ronning killed Rosansky. The court concluded that “it would be inappropriate in effect to enhance the credibility of Michael Ronning based upon one investigating officer’s professional opinion” because apart from Ronning’s statement, “Detective Mullen’s opinion that Mr. Ronning committed the Rosansky murder is based primarily upon his professional opinion and instinct, as opposed to any newly-discovered facts or evidence obtained during the course of his investigation.” The court noted that Ronning “had the ability and opportunity over the years to obtain information from various sources . . . about relevant facts and circumstances surrounding the Rosansky murder . . . .” The court denied defendant’s motion for new trial because it “no longer believes that a different result at a re-trial is probable.”
The Court of Appeals reversed the trial court’s denial of defendant’s motion. The majority held that the trial court erred in (1) finding that Ronning’s confession lacked any probative value in establishing defendant’s right to a new trial, (2) failing to address the fact that Ronning passed a polygraph examination during which he confessed to the Rosansky murder, (3) failing to consider evidence that several prosecution witnesses had recanted, (4) dismissing the fact that Mullen believed Ronning had committed the crime, and (5) failing to consider that the prosecutor may have destroyed potentially exculpatory physical evidence. The majority stated that although no medical experts had opined that the cause of death was strangulation, it could not be definitively ruled out as a cause of death. The majority remanded for a new trial, directing that the jury was to resolve whether the prosecutor intentionally or in bad faith authorized the destruction of potentially exculpatory evidence.
The dissenting judge disagreed with the majority’s conclusion that the trial court abused its discretion in denying the motion for a new trial. The dissent opined that although defendant had presented newly discovered evidence that was not cumulative, the trial court did not abuse its discretion in holding that the evidence would not render a different result probable upon retrial. Although the case was a “close call,” 250 Mich App 161, and although the trial court’s original decision that defendant was entitled to a new trial would not have constituted an abuse of discretion, great deference must be accorded to the trial court’s assessment of the credibility of witnesses. The trial court did not make a mistake of law in its analysis of the new evidence. Although the veracity of the testimony of three prosecution witnesses had been questioned, four other nonrecanting witnesses had testified regarding “how defendant had admitted in graphic terms how he raped and killed the victim.” 250 Mich App 162.
This Court granted the prosecutor’s application for leave to appeal, limited to the issue “whether the defendant is entitled to a new trial on the basis that there is newly discovered evidence in the form of a confession by another to the crime of which the defendant was convicted.”
H. STANDARD OF REVIEW
This Court reviews a trial court’s decision to grant or deny a motion for new trial for an abuse of discretion. People v Lemmon, 456 Mich 625, 648 n 27; 576 NW2d 129 (1998). A mere difference in judicial opinion does not establish an abuse of discretion. AlkenZiegler, Inc v Waterbury Headers Corp, 461 Mich 219, 228; 600 NW2d 638 (1999). A trial court’s factual findings are reviewed for clear error. MCR 2.613(C).
in. DISCUSSION
We agree with the dissenting judge in the Court of Appeals that the trial court did not abuse its discretion in denying defendant’s motion for a new trial on the asserted ground of newly discovered evidence. For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (1) “the evidence itself, not merely its materiality, was newly discovered”; (2) “the newly discovered evidence was not cumulative”; (3) “the party could not, using reasonable diligence, have discovered and produced the evidence at trial”; and (4) the new evidence makes a different result probable on retrial. People v Johnson, 451 Mich 115, 118 n 6; 545 NW2d 637 (1996); MCR 6.508(D).
After considering the conflicts between Ronning’s confessions and the facts established at trial, the trial court concluded that Ronning was not a credible witness and was a false confessor. A false confession (i.e., one that does not coincide with established facts) will not warrant a new trial, and it is within the trial court’s discretion to determine the credibility of the confessor. People v Simon, 243 Mich 489, 494; 220 NW 678 (1928); People v Czarnecki, 241 Mich 696, 699; 217 NW 781 (1928).
Ronning’s confessions sharply deviated from the established facts regarding the crime: (1) he stated that Rosansky did not struggle or resist, but the evidence at trial showed that she had defensive wounds and extensive bruising; (2) he stated that he strangled Rosansky, but the medical experts testified at trial that there was no evidence of strangulation and the cause of death was brain injury caused by blunt-force trauma to the head; (3) he stated that he hit Rosansky once with a round rock, while the medical evidence tended to show multiple blows with a linear, club-like object; (4) he did not mention the tree-limb pieces placed in Rosansky’s throat; (5) he stated that Rosansky was almost completely naked, wearing only her socks, when in fact she had been found clothed from the waist up; (6) he stated that he “specifically remembered” not having or being able to have intercourse with Rosansky and denied digitally penetrating her rectum, although the medical evidence showed evidence of forced anal penetration; and (7) he could not find the location where the body was found, even when that location was shown to him and despite the fact that he claimed that he left Rosansky’s body in an area that he lived near as an adult. Further, it was not disputed that Ronning had an incentive to confess, and several witnesses testified that he admitted that he fabricated the confession. Finally, Ronning also refused to testify regarding any details concerning Rosansky’s murder at the evidentiary hearing, thereby casting doubt on whether he would testify at a new trial. In light of the above inconsistencies between Ronning’s confession and the established facts, the trial court did not abuse its discretion in deciding that Ronning was a false confessor and that his testimony (even presuming he would testify at a new trial) would not make a different result probable on retrial. The Court of Appeals erred in substituting its judicial opinion regarding Ronning’s credibility for that of the trial court. See Alken-Ziegler, supra.
Further, the Court of Appeals erred in holding that the trial court erred in not considering the polygraph-examination results. Although Ronning was questioned regarding the number of murders committed in Michigan, none of the polygraph questions specifically mentioned Patty Rosansky. Therefore, the results are simply irrelevant to a determination regarding the veracity of Ronning’s confession to the Rosansky murder. The trial court did not abuse its discretion in refusing to consider the polygraph results.
Finally, the Court of Appeals erred in concluding that the trial court had impermissibly rejected Detective Mullen’s testimony. The trial court’s opinion demonstrated that the trial court heard and considered Detective Mullen’s testimony. The court found that Detective Mullen’s testimony was not likely to make a different result probable on retrial because (1) Detective Mullen was not involved in the Rosansky investigation; (2) other police agencies and detectives who were involved in the investigation disagreed with Mullen that Ronning killed three young women in Michigan, including the victim; and (3) Mullen did not speak with those in the state police who initially investigated the victim’s murder, did not read defen dant’s trial transcript, and did not speak with witnesses from defendant’s trial or with defendant himself before concluding that Ronning murdered Rosansky. The trial court did not abuse its discretion, and the Court of Appeals erred in merely substituting its view of the weight of Detective Mullen’s evidence for that of the trial court.
IV. CONCLUSION
The trial court did not abuse its discretion in denying defendant’s motion for a new trial based on newly discovered evidence in the form of Michael Ronning’s confession. Ronning’s confession contradicted many of the established facts surrounding the Rosansky murder, and he told several witnesses that his confession was a lie. It was well within the trial court’s discretion to find Ronning’s confession incredible and to determine that he was a false confessor. It was similarly within the court’s discretion to refuse to consider irrelevant polygraph evidence that did not refer to the Rosansky murder. Finally, the trial court did not abuse its discretion in concluding that Detective Mullen’s professional opinion, in light of the factors surrounding the formation of that opinion and the above determination regarding Ronning’s veracity, did not make a different result probable on retrial. The Court of Appeals impermissibly substituted its judicial opinion for that of the trial court. Therefore, we reverse the judgment of the Court of Appeals and reinstate the circuit court’s denial of defendant’s motion for a new trial.
Weaver, Taylor, Young, and Markman, JJ., concurred with Corrigan, C.J.
John Moore testified that he lived with defendant and heard defendant state in February 1983 after coming home in the evening, that “he felt a little better because he went and knocked off a piece.” He testified that he also heard defendant say he had killed the victim.
Terry Moore testified that he lived with defendant and that, in July 1983, defendant took Terry, his brother Walter, and Cindy Lesley to a wooded area and pointed out the location of the victim’s body. The victim’s body was later found in that location.
Candy Moore testified that defendant came to her house almost every day in the spring of 1983 and told her on two different occasions that he had killed a girl named Patty and put her in a ditch.
Emery DeBruine testified that in May 1983 defendant saw him in a bar and told DeBruine that defendant had raped and killed a girl because she refused to have sex with him. Defendant also said that it was a perfect crime and that no one would know about it.
Walter Moore, a convicted felon, testified that defendant had stated that he had picked the victim up and that they had smoked marijuana. Defendant wanted to have sex and when the victim refused, he raped her, killed her, and dumped the body in a wooded area.
Cindy Lesley testified that defendant had taken her out to the ravine where the victim was found and told her that he had killed the victim and left her body in the ravine after he covered her. Lesley called the police and eventually received a monetary reward.
Officers Nick Pestum and Marion Bagent testified regarding prior consistent statements of Walter Moore, Candy Moore, and Cindy Lesley, for the limited purpose of refuting defendant’s charges that the witnesses were influenced.
Shirley House testified that she was the Moore family’s landlady. She testified that when she was at the house repairing the steps, she heard defendant say, “I cannot believe that I got so hard up I had to kill the bitch for a piece of ass.”
Detective Mullen did not personally investigate this case.
250 Mich App 110; 645 NW2d 669 (2002).
The issue of bad-faith destruction of evidence has been resolved and is no longer before the Court. This Court remanded the case to the trial court for an evidentiary hearing concerning defendant’s allegation of bad-faith destruction of evidence, clarifying that that issue was to be decided by the court and not a jury. 466 Mich 883 (2002). The circuit court filed its opinion and order on August 16, 2002, finding that the prosecutor’s office did not engage in the bad-faith destruction of evidence.
467 Mich 890 (2002).
Whether the dissent is correct that this case constitutes a “close call” is something that we need not address in light of our agreement that there was no abuse of discretion on the part of the trial court in denying defendant’s motion.
Further, as the prosecutor observed in his brief:
Nor can Ronning’s total inability to locate the scenes be attributed to a failed memory or a change in geography. This is so for the following reason[] . . . Exhibit 25, the map drawn by Michael Ronning clearly shows an area identified by Ronning as the crime scene and site of the body. The map places the scene and the body near the V. A. Hospital at Fort Custer. It actually appears to be right near the entrance to Fort Custer. The map is wrong. The map does, however, mirror Detective Mullen’s testimony of what he told Ronning about where the murder took place ....
According to Timothy Dixon, one of those who testified that Ronning told him that he was falsely confessing to the Rosansky murder, Ronning also told him that Detective Mullen was unknowingly giving Ronning information about the circumstances and details of the murder that he was merely stating back to investigators. See, e.g., n 7. In this regard, it is noteworthy that Detective Mullen apparently suspected Ronning of four murders, including that of Cheri Edwards, but only told Ronning about three of these murders, including Rosansky’s. Ronning testified about only the three murders, not including that of Edwards. | [
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] |
Reported ante, 261.
Kelly, J. I would grant rehearing. | [
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On order of the Court, the motion of the Legal Aid and Defender Association of Detroit, Inc. to intervene as a party plaintiff is granted, and the complaint and brief filed with the motion are accepted. The motion for admission pro hac vice of Martin S. Piñales and the motion for leave to file a brief amicus curiae are granted.
The complaints for superintending control are considered, and relief is denied because the Court is not persuaded that it should grant the requested relief. We are not persuaded by plaintiffs’ complaints and supporting papers that the Chief Judges of the Wayne Circuit Court have adopted a fee schedule which, at this time, fails to provide assigned counsel reasonable compensation within the meaning of MCL 775.16. | [
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AFTER REMAND
Young, J.
The Court of Appeals reversed the trial court’s denial of defendant’s motion for relief from judgment on the ground that defendant was not “lawfully imprisoned” as contemplated by MCL 750.197c. We reverse.
I. BACKGROUND
Defendant was stopped by the police for allegedly trespassing, failing to obey a police officer, and assisting in a traffic violation. After the stop, the police discovered that defendant was carrying a concealed weapon without a permit in violation of MCL 750.227. As a result, defendant was placed under arrest and taken to the county jail.
While at the county jail, defendant assaulted a law enforcement officer. Consequently, defendant was charged with assaulting a corrections officer, MCL 750.197c, and being an habitual offender, fourth offense, MCL 769.12. Defendant was convicted of these offenses at trial and his convictions were affirmed by the Court of Appeals. Defendant’s application for leave to appeal was denied by this Court.
In separate proceedings, defendant was convicted of unlawfully carrying a concealed weapon, MCL 750.227, and being an habitual offender, fourth offense, MCL 769.12, for the events that had led to his arrest and imprisonment in the first place. However, these convictions were reversed by the Court of Appeals because there was insufficient probable cause to initially stop defendant for trespassing, failing to obey a police officer, or assisting in a traffic violation. Accordingly, the Court of Appeals held that evidence of the concealed weapon subsequently discovered should have been suppressed under the exclusionary rule. Plaintiffs application for leave to appeal was denied by this Court.
Armed with the reversal of his concealed-weapon conviction, defendant filed a motion for relief from judgment for his conviction of assaulting a corrections officer under MCL 750.197c. Defendant argued that § 197c requires one to be “lawfully imprisoned” and that the reversal of the concealed-weapon conviction because of the unconstitutional initial stop and subsequent search meant that defendant had not been “lawfully imprisoned” at the time he struck the officer in the county jail. The trial court denied the motion on alternate bases. First, the trial court held that the arrest was valid for purposes of § 197c because an outstanding bench warrant for defendant’s arrest existed at the time of his detention. Second, the trial court reasoned that a subsequent finding that there was insufficient probable cause to arrest does not render an arrest unlawful for purposes of § 197c.
The Court of Appeals affirmed, but on different grounds from the trial court. The Court of Appeals majority held that the text of § 197c does not necessarily require a defendant to be “lawfully imprisoned.” The dissenting judge, on the other hand, read the statute such that the phrases “lawfully imprisoned” in the statute collectively applied to all the subclassifications listed in the statute.
After this Court granted defendant leave to appeal in order to consider whether the Court of Appeals majority properly interpreted the requirements of § 197c, the prosecution conceded that the Court of Appeals dissent correctly construed the statute. That is, § 197c requires under all circumstances that the defendant be “lawfully imprisoned” in order to be convicted of violating the statute. We concurred with the prosecution’s concession that the Court of Appeals dissent correctly stated the requirements of § 197c and, in a summary disposition order, reversed the judgment of the Court of Appeals and remanded the case to that Court to decide whether the defendant’s imprisonment was, in fact, lawful.
On remand, the Court of Appeals reversed the trial court’s denial of defendant’s motion for relief from judgment, adopting the reasoning of the previous dissenting opinion that defendant was not lawfully imprisoned. The Court wrote:
The prosecution argues that defendant’s incarceration was lawful because he had committed the crime of carrying a concealed weapon and there was an outstanding bench warrant for defendant’s arrest when he was stopped. However, there is no evidence that police were aware of either fact at the time of the stop. The fact that the search of defendant’s person led to evidence is irrelevant. A search, in law, is good or bad at the time of commencement, and its character does not change on the basis of its success. People v LoCicero (After Remand), 453 Mich 496, 501; 556 NW2d 498 (1996). [247 Mich App 322, 324; 636 NW2d 303 (2001).]
We granted the prosecution leave to appeal.
II. STANDARD OF REVIEW
At issue is the proper interpretation of MCL 750.197c. We review de novo questions of statutory interpretation. People v Thousand, 465 Mich 149, 156; 631 NW2d 694 (2001).
III. ANALYSIS
At the time of the alleged offense, MCL 750.197c provided:
A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place, including but not limited to hospitals and other health care facilities or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from a prison, for a crime or offense, or charged with a crime or offense who, without being discharged from the place of confinement, or other lawful imprisonment by due process of law, through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian or breaks the place of confinement and escapes, or breaks the place of confinement although an escape is not actually made, is guilty of a felony. [Emphasis added.]
The issue presented is whether the reversal of defendant’s conviction of the concealed-weapon offense, effectuated by an application of the exclusionary rule, means that defendant was not “lawfully imprisoned” as contemplated by MCL 750.197c.
To say that an action is “lawful” is to say that it is authorized by law. Black’s Law Dictionary (6th ed), p 885. In this case, defendant committed, in an officer’s presence, the felony of carrying a concealed weapon without a permit. Consequently, defendant was detained pursuant to MCL 764.15(1), which provides:
A peace officer, without a warrant, may arrest a person in any of the following situations:
(a) A felony, misdemeanor, or ordinance violation is committed in the peace officer’s presence.
As a result, by the authority granted to him by MCL 764.15(l)(a), the police officer was authorized to imprison defendant. Accordingly, defendant’s imprisonment was “lawful” as contemplated by MCL 750.197c.
Defendant advances, nevertheless, that the subsequent suppression of the evidence of the concealed weapon because of the application of the exclusionary rule causes the police officer’s conduct to be retroactively considered “unlawful.” We disagree. Simply put, for purposes of MCL 750.197c, a subsequent determination concerning a defendant’s prosecution cannot and does not serve to retroactively render “unlawful” the actions of a law enforcement officer where those actions are authorized by law.
Rather, for the purposes of MCL 750.197c, an imprisonment cannot be Tmlawful where a law enforcement officer has been given the authority under law to imprison the individual. Because defendant was detained pursuant to the officer’s legal authority under MCL 764.15(l)(a), he was “lawfully imprisoned” under MCL 750.197c.
CONCLUSION
For these reasons, we reverse the judgment of the Court of Appeals and reinstate the trial court’s denial of defendant’s motion for relief from judgment.
Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with Young, J.
Cavanagh, J., concurred in the result only.
Kelly, J.
I respectfully disagree with the majority’s conclusion. I believe that a defendant who has been illegally stopped cannot be “lawfully imprisoned” within the meaning of MCL 750.197c. The majority’s conclusion to the contrary has no basis in the law. Moreover, it circumvents constitutional protections and sanctions, even encourages, illegal conduct by police officers.
The majority’s reasoning is that police officers may arrest a suspect if they observe him committing a felony, although their observation was possible only because of their own illegal activity. Thus, applied to this case, the majority holds that a later determination that the officers’ initial stop of defendant’s vehicle was illegal will not render unlawful the imprisonment that followed the stop.
I think the decision is ill-advised. First, this case implicates the exclusionary rule that the United States Supreme Court fashioned to deter illegal police conduct. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961); Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The protection of the rule is vitiated by a holding that the imprisonment of a suspect can be “lawful,” even if the initial stop were constitutionally impermissible.
Under the majority’s decision, the police could seize a suspect with neither probable cause nor reasonable suspicion, literally for no legally sanctioned reason, hoping to find evidence of a felony. If they found such evidence and imprisoned the suspect, the imprisonment would be “lawful.” Surely the same rationale that renders the fruit of the poisonous tree inadmissible renders the imprisonment arising from an unconstitutional seizure unlawful.
This is a case where defendant’s stop was illegal, lacking probable cause. As a result, the search that revealed the concealed weapon was also illegal. However, the majority finds that the imprisonment that was based on the search was legal. It makes this finding because MCL 764.15(1) gives an officer the right to arrest a person who commits a felony in the officer’s presence. In so ruling, the majority not only discards from consideration the fact that the officer’s presence in this case was illegal, it equates lawful arrest with lawful imprisonment.
MCL 764.15(1) makes the arrest lawful. However, MCL 750.197c, the statute in question, refers not to “lawful arrest,” but to “lawful imprisonment.” The police have the legal right to arrest an illegally stopped suspect, for example, to prevent the furtherance of a felony. But there is no legal basis for a finding that either the evidence seized or the imprisonment of that suspect is “lawful.” The rationale underlying the exclusionary rule would dictate the opposite result.
If the imprisonment were lawful, then could not the police (1) illegally break into someone’s home and search it, (2) without a warrant or permission, (3) allege that the owner possessed some kind of contra band, (4) imprison him, and (5) if the owner, feeling wronged, escaped confinement, charge and convict him of prison escape under MCL 750.197c because he was “lawfully imprisoned” when he escaped?
The Legislature has used no language in MCL 750.197c from which one can conclude that it intended such an outrageous result. Rather, it took pains to specify that, for the statute to apply, the imprisonment must be lawful. The majority’s only authority shows that it was lawful to arrest, not that it was lawful to imprison.
The case before us on appeal is not one in which a straightforward application of criminal law as written allows defendant to escape the consequences of his criminal behavior. The prosecutor could have charged defendant with, and presumably seen him convicted of and sentenced for, assault and battery, MCL 750.81, and resisting or obstructing an officer, MCL 750.479. These offenses constitute a ninety-day misdemeanor and a two-year felony, respectively. It is apparent that, here, the prosecutor seeks an extension of the law for the purpose of charging defendant with a more serious crime, a four-year felony under MCL 750.197c.
I believe that a holding that one may be “lawfully” imprisoned under MCL 750.197c after an illegal stop lacks legal authority. Morever, it constitutes a flagrant disregard for the protections of our constitution. If a constitutional violation can be so easily sanitized after the fact, there will be less incentive for police to observe constitutional protections. For those reasons, I would affirm the decision of the Court of Appeals.
Unpublished opinion per curiam, issued January 21, 1997 (Docket No. 183102).
456 Mich 888 (1997) (Docket No. 108578).
Unpublished opinion per curiam, issued April 11, 1997 (Docket No. 183101).
456 Mich 876 (1997) (Docket No. 109947).
Given our disposition of this case, we need not address the prosecution’s appellate argument regarding the propriety of the trial court’s bench warrant rationale.
239 Mich App 365, 369; 608 NW2d 76 (2000).
463 Mich 906 (2000).
463 Mich 970 (2001).
247 Mich App 322, 323-324; 636 NW2d 303 (2001).
466 Mich 860 (2002).
1998 PA 510 inserted a subsection 2 to include public and private youth correctional facilities in the definition of “place of confinement” and independent contractors in the definition of “employee.” These later amendments do not appear to alter our analysis of the legal issue before us.
To be certain, we note that in concluding in this case (Docket No. 120024) that defendant was lawfully imprisoned as contemplated by MCL 750.197c because of the authority vested in the law enforcement officer by MCL 764.15(1), we are not reconsidering whether in defendant’s other case (Docket No.. 109947), concerning the underlying charge of unlawfully carrying a concealed wrnapon, MCL 750.227, the law enforcement officer had probable cause to stop or search defendant or whether the seized evidence should have been suppressed. We already denied leave to appeal in that case, 456 Mich 876 (1997), and regardless, as our analysis above indicates, those issues are not relevant to the issue before us. Accordingly, to the extent that the dissent suggests that an exclusionary rule analysis is relevant to the issue presented, we disagree.
In addition, we find curious the dissent’s conclusion that under MCL 764.15(1) and MCL 750.197c an arrest is lawful but an imprisonment following such a lawful arrest is not. Such an interpretation would lead to a mandatory “catch and release” system of law enforcement, whereby criminals may be lawfully “arrested,” but not lawfully “imprisoned” until a defendant has the opportunity to have any suppression motions acjjudicated. The statutes at issue simply do not permit such an interpretation.
Further, we fail to find any logic in the dissent’s position that statutorily permitting police officers to arrest and hold an individual seen committing a crime under MCL 764.15(1), before a determination of the constitutionality of such an arrest through subsequent judicial process, somehow “sanctions, even encourages, illegal conduct by police officers.” Post at 269. Under this “encouraged behavior theory,” one must accept that police officers will seek to arrest individuals with the hope that these arrested individuals later assault a police officer while being held, causing significant injury to the police officer, so that the defendant will then be subjected to greater punishment for the assault. | [
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Per Curiam.
We granted leave to appeal in this case to consider whether the trial court erred in questioning the defendant at the degree hearing. The defendant pleaded guilty to charges of open murder and possession of a firearm during the commission of a felony, MCL 750.227b. At the plea hearing, the trial court accepted the defendant’s plea after the court, pursuant to MCR 6.302(B)(3), advised the defendant that he was waiving his trial rights, including the right to remain silent. Pursuant to MCR 6.302(D)(1), the court also established support for the finding that the defendant was guilty of these offenses.
At the subsequent degree hearing held pursuant to MCL 750.318, the court heard from other witnesses and, without objection, questioned the defendant to determine the appropriate degree of the murder. The court ultimately found defendant guilty of first-degree felony murder. The Court of Appeals concluded that, although the trial court violated defendant’s right against compelled self-incrimination, US Const, Am V; Const 1963, art 1, § 17, by calling him as a witness at the degree hearing, the error was harmless. Thus, the Court of Appeals affirmed the first-degree felony-murder conviction. 247 Mich App 14; 634 NW2d 370 (2001).
Although we too affirm the first-degree felony-murder conviction, we reject the Court of Appeals conclusion that the trial court erred by calling defendant to testify at the degree hearing. A defendant may invoke the privilege against compelled self-incrimination at any point during a plea proceeding, but the privilege is waived if not asserted. By invoking the privilege, the defendant risks losing the benefit of any plea bargain if the judge refuses to accept the plea. Because defendant simply complied with the judge’s request to testify and never asserted his right to remain free from compelled self-incrimination, he may not now claim error.
i
The opinion of the Court of Appeals provides this factual summary:
On January 18, 1998, Allen Russell Stewart was shot in the back in his mother’s front yard and died the same day from his gunshot wound. There were no eyewitnesses to the shooting, although the next-door neighbor recalled seeing two men standing by a tree shortly before Allen was shot, and stated that she heard the gunshot. Allen’s mother, Charlene Stewart, also heard a loud noise at the time of the shooting and observed Allen staggering into her kitchen with blood on his head. Charlene said that after Allen was shot, she was unable to locate his wallet or several pieces of jewelry that he normally wore. A police officer who responded to Charlene’s 911 call noticed that Allen had duct tape on his wrists. After a search of Allen’s room at his mother’s house, the officer found what appeared to be drug-trafficking paraphernalia and 10.98 grams of crack cocaine with an estimated value of $1,000.
The police subsequently received information that defendant may have been involved in the shooting. A police detective traveled to Kentucky, where defendant was in jail on an unrelated charge, and interviewed defendant after he waived his Miranda rights. According to the detective, defendant initially denied any involvement in the shooting or that he had ever been to Michigan. During a third interview, defendant allegedly admitted that he and a friend, Ardell Robinson, went to the neighborhood to attend a party and sat on the hood of Allen’s car waiting for the party to begin. Defendant claimed that Allen pushed him and his gun went off as he slipped and fell. In a fifth interview, defendant allegedly told the detective that Robinson gave him a gun before they arrived in Allen’s neighborhood. Defendant said that Robinson grabbed Allen, and when Allen broke away and approached defendant, he pulled his gun and it went off. The detective claimed that defendant further admitted that he and Robinson discussed robbing someone.
The prosecution charged defendant with open murder and felony-firearm. At a hearing on November 4, 1999, defendant pleaded guilty to both charges and claimed that he shot Allen after the two fought. During the course of the plea hearing, the court informed defendant that by pleading guilty he was waiving his right to a jury trial and the right to remain silent at that trial. Defendant indicated his understanding of his rights and the consequences of his plea and waived his rights on the record.
On November 8, 1999, the court held a degree hearing pursuant to MCL 750.318. At the hearing, the prosecution presented several witnesses, including Charlene Stewart, the police officer who responded to the scene following the shooting, and the detective who interviewed defendant. The prosecution also called a forensic pathologist who testified that Allen had scrapes on his forehead and face and died as a result of the gunshot wound. According to the pathologist, the bullet entered Allen’s back, traveled down through his body, perforating his aorta, and stopped in his thigh. After the prosecution and defense rested, the court called defendant as a witness, and he was questioned both by the court and the prosecution. Defense counsel did not object to the court calling defendant as a witness or to defendant’s testimony. During his testimony, defendant denied robbing Allen and continued to insist that the shooting occurred as the two fought.
In an oral decision following the degree hearing, the trial court found that defendant planned to rob Allen and that the shooting could not have happened in the maimer described by defendant. The court then concluded that the killing constituted felony murder because it occurred during the course of a robbery.
II
A trial court’s authority to examine a defendant at a degree hearing following the hearing at which a guilty plea for open murder was accepted is a question of law, which we review de novo. People v Riddle, 467 Mich 116; 649 NW2d 30 (2002).
hi
Before accepting a guilty plea, a trial court must question the defendant to ascertain whether there is support for a finding that the defendant is guilty of the offense to which he is pleading guilty. To facilitate compliance with a defendant’s procedural rights, this Court adopted MCR 6.302(D)(1), which provides:
If the defendant pleads guilty, the court, by questioning the defendant, must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading.
The court must also ascertain the degree of the offense after a defendant pleads guilty of open murder. MCL 750.318 provides that if a defendant “shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.” Hence, on defendant entering a plea of guilty of open murder, a court must determine whether the defendant is guilty of either first- or second-degree murder as defined in MCL 750.316, 750.317.
The scope of inquiry at a plea colloquy is a function of the questions posed by the court and the information offered by a defendant.
[A court may] make whatever inquiry it deems necessary in its sound discretion to assure itself the defendant is not being pressured to offer a plea for which there is no factual basis. A defendant who withholds information by invoking the privilege against self-incrimination at a plea colloquy runs the risk the . . . court will find the factual basis inadequate. [Mitchell v United States, 526 US 314, 324; 119 S Ct 1307; 143 L Ed 2d 424 (1999).]
The degree hearing is simply an extension of the plea hearing. At the plea hearing, the court questioned the defendant to determine whether there was a sufficient factual basis to support the guilty plea of open murder, and, at the degree hearing, the court questioned the defendant in order to fulfill its duty under MCL 750.318 to determine whether there was a factual basis to support a finding that defendant was guilty of first-degree murder or only second-degree murder.
The Court of Appeals erred in its application of Mitchell, in which the United States Supreme Court concluded that an accused’s waiver of the right against compelled self-incrimination did not waive the right to invoke the privilege at a sentencing proceeding. The Court of Appeals relied on Mitchell and concluded that defendant did not, by waiving his right to be free from compelled self-incrimination at the plea hearing, waive that right for the purposes of the degree hearing, and that the trial court, therefore, erred in compelling defendant to testify at that hearing. Mitchell is inapposite not only because a degree hearing is not akin to a sentencing proceeding, but also because the defendant in Mitchell expressly invoked the Fifth Amendment privilege at the sentencing hearing, whereas defendant voluntarily answered the trial court’s questions in the case at bar.
The right to be free from compelled self-incrimination is not self-executing, and the Court of Appeals erred in suggesting that the trial court compelled defendant to incriminate himself. Because defendant never invoked his privilege against self-incrimination, the right must be considered waived.
IV
We have reviewed defendant’s remaining claims and find no basis upon which to grant the defendant relief. Therefore, although we reject the Court of Appeals conclusion that the trial court erred by calling the defendant to testify at the degree hearing, we affirm defendant’s first-degree felony- murder conviction.
Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred.
467 Mich 868 (2002).
(B) An Understanding Plea. Speaking directly to the defendant, the court must advise tire defendant and determine that the defendant understands:
* * *
(3) if the plea is accepted, the defendant will not have a trial of any land, and so gives up the rights the defendant would have at a trial, including the right:
*
* *
(h) to remain silent during the trial. [MCR 6.302.]
Defendant did not challenge his felony-firearm conviction.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
MCL 750.318 provides in pertinent part:
The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.
See People v Smith, 257 Mich 319; 241 NW 186 (1932) (“In all cases where a personal privilege exists for a witness to testify or not, if such witness does testify without objection he will be deemed to have done so voluntarily.”). | [
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Markman, J.
We granted leave to appeal to consider the jurisdiction of the Court of Claims over this case, which involves a contractual claim for declaratory judgment against a state agency. The Court of Appeals, relying on Silverman v Univ of Michigan Bd of Regents, 445 Mich 209; 516 NW2d 54 (1994), determined that the Court of Claims lacked subject-matter jurisdiction because the complaint did not request monetary damages. Because we conclude that the Court of Claims has exclusive jurisdiction over the claim, we reverse the judgment of the Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
In 1973, plaintiff, a limited dividend housing association, received a mortgage from defendant Michigan State Housing Development Authority to finance the construction of an apartment complex for low-income and moderate-income residents. In September 1998, plaintiff informed defendant of its intention to pay off the mortgage on October 1, 1998, and requested a payoff letter showing the amount due. Plaintiff also inquired whether the balances in all escrow and reserve accounts would be applied against the amount due or paid directly to plaintiff. In response, defendant indicated that it would retain any amounts remaining in the accounts after payment of the full limited dividend to which plaintiff was entitled. Plaintiff then filed a “Complaint for Declaratory Relief” in the Wayne Circuit Court, seeking a declaration that the money contained in certain escrow accounts belonged to plaintiff and that plaintiff would be entitled to possession of the accounts when plaintiff paid the full balance due under the mortgage. The circuit court dismissed the case, finding that the claim was within the exclusive jurisdiction of the Court of Claims.
Plaintiff appealed from the circuit court’s dismissal, and refiled its complaint in the Court of Claims. Both parties filed motions for summary disposition. The Court of Claims granted summary disposition for defendant. Plaintiff appealed from the Court of Claims judgment.
The Court of Appeals consolidated plaintiff’s two appeals and, in a split decision, reversed. The majority determined that, because plaintiff’s complaint sought only a declaratory judgment concerning the ownership of certain money, contingent on certain circumstances, and did not seek monetary damages, the circuit court possessed subject matter jurisdiction. Additionally, the majority concluded that because the Court of Claims only has jurisdiction over claims for monetary damages, and because plaintiff’s complaint did not seek monetary damages, the Court of Claims lacked subject matter jurisdiction and its rulings were void.
The dissenting Court of Appeals judge concluded that the claim would ultimately result in money damages if plaintiff were granted the relief requested in the complaint, and, therefore, that the case was properly before the Court of Claims.
Defendant filed an application for leave to appeal, and plaintiff filed an application for leave to cross- appeal the Court of Claims decision on its merits. We denied plaintiff’s application and granted defendant’s application, directing the parties to address the jurisdictional question in the context of the relevant statutes, MCL 600.6419 and 600.6419a, and this Court’s decision in Silverman.
II. STANDARD OF REVIEW
In order to resolve this jurisdictional issue, we must consider the Court of Claims Act. This is a question of statutory construction, which is reviewed de novo as a question of law. Cruz v State Farm Mut Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002).
m. DISCUSSION
A. STATUTORY PROVISIONS
The jurisdiction of the Court of Claims is provided by statute. The main statutory provision, MCL 600.6419, grants the Court of Claims exclusive jurisdiction over certain claims against the state and its subparts:
(1) Except as provided in sections 6419a and 6440, the jurisdiction of the court of claims, as conferred upon it by this chapter, shall be exclusive. . . . The court has power and jurisdiction:
(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies.
In regard to the jurisdiction of the circuit courts, MCL 600.6419 provides:
(4) This chapter shall not deprive the circuit court of this state of jurisdiction over . . . proceedings for declaratory or equitable relief, or any other actions against state agencies based upon the statutes of this state in such case made and provided, which expressly confer jurisdiction thereof upon the circuit court....
Additionally, MCL 600.6419a, which was added in 1984, gives the Court of Claims concurrent jurisdiction with the circuit courts over any claim for equitable and declaratory relief that is ancillary to a claim filed under § 6419:
In addition to the powers and jurisdiction conferred upon the court of claims by section 6419, the court of claims has concurrent jurisdiction of any demand for equitable relief and any demand for a declaratory judgment when ancillary to a claim filed pursuant to section 6419. The jurisdiction conferred by this section is not intended to be exclusive of the jurisdiction of the circuit court over demands for declaratory and equitable relief conferred by section 605.[ ]
B. CASE LAW
Michigan courts have interpreted § 6419(l)(a) “as limiting the jurisdiction of the Court of Claims to actions for money damages.” AuSable Manistee Action Council, Inc v Michigan, 182 Mich App 596, 598; 452 NW2d 832 (1989) (citations omitted). This interpretation was first set forth in Taylor v Auditor General, 360 Mich 146, 151; 103 NW2d 769 (1960), which was decided before the 1984 amendment, when this Court, noting that the Court of Claims was created as a court of limited jurisdiction having “no ‘equity side’ as that term is employed in respect of the jurisdiction of Michigan courts,” concluded that the Court of Claims did not possess jurisdiction over declaratory-judgment actions.
Relying on Taylor, Michigan courts have since adhered to the view that the Court of Claims lacks jurisdiction over a claim that is solely for declaratory relief. See, e.g., AuSable, supra at 598; 77th Dist Judge v Michigan, 175 Mich App 681, 699; 438 NW2d 333 (1989). However, in Greenfield Constr Co, Inc v Dep’t of State Hwys, 402 Mich 172; 261 NW2d 718 (1978), six participating justices agreed, in five separate opinions, that the circuit court lacked jurisdiction over the plaintiff’s suit for declaratory judgment against a state department. Id. at 198 (opinion by Ryan, J., Coleman and Fitzgerald, JJ., concurring), 202 (opinion by Levin, J., Kavanagh, C.J., concurring), 231 (Williams, J., concurring that the circuit court lacks jurisdiction over a citizen suit against a government agency for a declaratory judgment).
After the addition of § 6419a, the Court of Appeals noted that, “The holding in Taylor, premised on the absence of an equity side to the Court of Claims, was discredited in view of the subsequent abolition of procedural distinctions between the law and equity sides of a court docket.” 77th Dist Judge, supra at 699. Nonetheless, the Court in 77th Dist Judge concluded “declaratory judgment is appropriate in the Court of Claims only if the underlying dispute or controversy is of a nature lending itself to an eventual remedy in money damages against the state or one of its branches.” Id. at 700.
In 1994, this Court in Silverman, supra at 216-217, noted the uncertainty regarding the Court of Claims jurisdiction over declaratory claims before the addition of § 6419a. According to Silverman, with the enactment of § 6419a, “the Legislature authorized the Court of Claims to exercise jurisdiction over claims for declaratory and equitable relief against the state, provided that the plaintiffs suit also seeks money damages from the state or one of its agencies.” Id. at 217. Significantly, Silverman also noted that the actual “nature of the claim,” not how the plaintiff phrases the request for relief, controls whether the Court of Claims possesses jurisdiction. Id. at 216 n 7.
C. ANALYSIS
Plaintiff concedes that this case involves a contract-based claim. However, plaintiff argues that, inasmuch as the complaint sought declaratory relief only, the Court of Claims did not possess jurisdiction, because MCL 600.6419(l)(a), interpreted in light of MCL 600.6419a, only grants the Court of Claims exclusive jurisdiction over complaints that request monetary damages. Defendant, on the other hand, argues that, because this is a contract-based claim against a state agency, it comes squarely within the exclusive jurisdiction of the Court of Claims under § 6419(l)(a).
In order to resolve the jurisdictional question presented, we must first consider the “nature of the claim.” Plaintiffs prayer for relief states:
Wherefore, Plaintiff requests that the court adjudicate and declare that the accounts which are the subject of this complaint are assets belonging to Plaintiff, subject to Defendant’s custodial rights while the mortgage is in force, and that Plaintiff shall be entitled to sole possession of the accounts at the time Plaintiff pays the full balance due under Defendant’s mortgage. Plaintiff also requests its costs and attorney fees and such other relief as the court determines to be just.
From the face of the complaint, it is apparent that plaintiff is seeking a declaration regarding its entitlement to money in certain accounts, at such time that it prepays the mortgage. Pursuant to MCR 2.605(A)(1),
[i]n a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.
Considering the language of the court rule, it appears that plaintiff is seeking a court declaration regarding its rights relative to the contract between the parties. Plaintiff does not directly request monetary damages, although the complaint pertains to money that is con- tamed in certain accounts. Instead, plaintiff asks for a court ruling regarding its rights and the effects of its future actions. Thus, plaintiffs complaint may be properly characterized as seeking solely declaratory relief.
In light of our conclusion that this case involves a complaint for declaratory relief only, we must next consider whether this claim falls within the exclusive jurisdiction of the Court of Claims pursuant to § 6419(l)(a). In resolving this issue of statutory interpretation, our primary aim is to effect the intent of the Legislature. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). First, we examine the language of the statute. Id. “If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.” Id., citing People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001).
The plain language of § 6419(l)(a), the primary source of jurisdiction for the Court of Claims, does not refer to claims for money damages or to claims for declaratory relief. Rather, in broad language, this provision grants the Court of Claims exclusive jurisdiction of “all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state . . . .” Because the present case involves a contract-based claim for declaratory relief against a state agency, we conclude that it falls within the exclusive jurisdiction of the Court of Claims under the plain language § 6419(l)(a).
In reaching this conclusion, we recognize that in Silverman this Court suggested that the circuit court is the appropriate forum for complaints against the state that request only declaratory relief. Silverman, supra at 217 (“A complaint seeking only money damages against the state must be filed in the Court of Claims. A complaint seeking only equitable or declaratory relief must be filed in circuit court.”). As previously discussed, the idea that the Court of Claims lacks jurisdiction over declaratory-judgment actions was first articulated by this Court in Taylor in 1960 and was premised on the lack of an equity side to the Court of Claims. Subsequently, the Court of Appeals in 77th Dist Judge, supra at 699, indicated that Taylor's holding was “discredited” on the basis of the later “abolition of procedural distinctions between the law and equity sides of a court docket.” Despite this, and despite the plain language of the statute, cases have continued, with the exception of Greenfield, to interpret the jurisdiction granted by § 6419(l)(a) as extending only to claims for money damages. As we have indicated, however, § 6419(l)(a) clearly provides the Court of Claims with exclusive jurisdiction over “all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state . ...” In light of this language, we conclude today that the grant of exclusive jurisdiction conveyed to the Court of Claims by § 6419(l)(a) includes jurisdiction over declaratory-judgment actions against the state that involve contract or tort without more; that is, the claim need not expressly claim money damages. We disavow any contrary statements found in Taylor and Silverman.
In reaching this conclusion, we recognize that, with regard to the jurisdiction of the circuit court, our constitution provides that “[t]he circuit court shall have original jurisdiction in all matters not prohibited by law . . . Const 1963, art 6, § 13. In addition, § 6419(4) recognizes that the circuit court has jurisdiction over
proceedings for declaratory or equitable relief, or any other actions against state agencies based upon the statutes of this state in such case made and provided, which expressly confer jurisdiction thereof upon the circuit court....
In our view, § 6419(l)(a), by its explicit grant of exclusive jurisdiction to the Court of Claims of “all claims and demands ... ex contractu and ex delicto” against the state, deprives “by law” the circuit court of jurisdiction over these types of claims. Under the language of MCL 600.605, § 6419(l)(a) is an instance “where exclusive jurisdiction is given ... by statute to some other court . . . .” Thus, we construe § 6419(4) as maintaining the jurisdiction of the circuit court over those declaratory claims against the state that do not involve contract or tort.
IV. CONCLUSION
For these reasons, we conclude that the Court of Claims possesses exclusive subject matter jurisdiction over this case, which involves a contract-based complaint against a state agency seeking solely declaratory relief. Today we hold that pursuant to the plain language of § 6419(l)(a), the Court of Claims has exclusive jurisdiction over complaints based on contract or tort that seek solely declaratory relief against the state or any state agency. We disavow any contrary statements found in our prior case law that have seemingly interpreted § 6419(l)(a) as granting the Court of Claims jurisdiction over claims for money damages only. We, therefore, reverse the judgment of the Court of Appeals on the jurisdictional issue. We remand to the Court of Appeals for consideration of the merits of the Court of Claims rulings, which were not previously considered.
Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, and Young, JJ., concurred with Markman, J.
The State Housing Development Authority Act, MCL 125.1493(b), allows the authority to establish a reasonable and proper rate for cumulative dividends payable to members of limited dividend housing associations and provides that on dissolution of the limited dividend housing association, any surplus shall be paid to the authority:
That every member of a limited dividend housing association shall be deemed, by acceptance of a beneficial interest in the limited dividend housing association or by executing the document of basic organization, to have agreed that he or she at no time shall receive from the limited dividend housing association any return in excess of the face value of the investment attributable to his or her respective interest plus cumulative dividend payments at a rate which the authority determines to be reasonable and proper, computed from the initial date on which money was paid or property delivered in consideration for the interest; and that upon the dissolution of the limited dividend housing association, any surplus in excess of those amounts shall be paid to the authority or to any other regulating governmental body as the authority directs.
Unpublished opinion per curiam, issued October 26, 2001 (Docket Nos. 218433, 229448).
467 Mich 897 (2002).
MCL 600.605 provides:
Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.
Three justices also opined that the Court of Claims has jurisdiction over a declaratory-judgment action against the state. Id. at 200 (concurring opinion of Coleman, J.), 230 (opinion by Levin, J., Kavanagh, C.J., concurring).
It is noteworthy, however, that at oral argument, plaintiff’s counsel indicated that this case “involves a million and a half dollars approximately,” and thus that the losing party will likely seek to return to this Court for consideration of the merits of the case.
We construe the enactment of § 6419a as having added to this jurisdiction by clarifying that the Court of Claims also has jurisdiction over other declaratory and equitable claims, specifically, those that relate neither to contract nor tort — over which the circuit court would otherwise have exclusive jurisdiction — when those claims are ancillary to a claim within the court’s exclusive jurisdiction under § 6419.
In addition, we disavow similar statements contained in various Court of Appeals cases, including 77th Dist Judge and AuSable.
However, we specifically reaffirm the statements in Silverman recognizing that the nature of the claim, rather than how the plaintiff phrases the request for relief, controls how a court will characterize the claim.
Similarly, MCL 600.605, which is quoted in its entirety in n 4, grants circuit courts jurisdiction over “all civil claims and remedies, except where exclusive jurisdiction is given ... by statute to some other court (Emphasis added.)
This jurisdiction of the circuit court is concurrent with the jurisdiction of the Court of Claims over such claims in the circumstances set out in § 6419a, see n 7. That is, when such a declaratory action is ancillary to another claim within the Court of Claims exclusive jurisdiction under § 6419, the circuit court and the Court of Claims have concurrent jurisdiction over the declaratory action. | [
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] |
Weaver, J.
(nonparticipation statement).
Although I am not prejudiced or biased in this case, I have decided not to participate in the motion for rehearing in order to expedite the case for the sake of tire minor child, JK. In my May 20, 2003, statement I said that I was not participating for three reasons:
• First, to expedite for the salce of the child this case, which has been in the Supreme Court for over a year;
• Second, to defer to the decisions of the respondent party, the biological mother, and her attorney not to remit/waive any possible disqualification; and
• Third, to maintain public trust and confidence in the judiciary. [468 Mich 202, 220; 661 NW2d 216 (2003).]
The full and complete explanation of the circumstances leading to my decision not to participate in either the May 20, 2003, decision in this case or the motion for rehearing can be found in my original statement of non-participation.
At the time the Court issued its May 20, 2003, opinion, this case had been in the Supreme Court for over a year (13 months), leaving JK, his biological mother, and his adoptive parents in a legal limbo. This Court should ensure that so excessive an appellate delay by the Supreme Court never occurs again. I urge the Court to publish for comment the proposed court rule, outlined below, which would ensure that termination-of-parental-rights cases would be resolved in the Supreme Court within 3 months — less than one quarter of the time (13 months) that this In re JK case was at this Court.
Since the May 20, 2003, opinion was issued, this Court has amended Michigan Court Rule 7.302 in a modest first step to reduce delay in termination-of-parental-rights cases. Previously, all applications for leave to appeal to the Supreme Court were to be filed within 21 days from a Court of Appeals decision, and delayed applications for leave to appeal had to be filed within 56 days. The recent amendments increase the time limit for filing an application for leave to appeal from an order terminating parental rights from 21 days to 28 days, and further provide that delayed applications for leave to appeal will not be accepted. Because delayed applications are eliminated, the amendments reduce the maximum potential time for filing an application for leave to appeal to the Supreme Court by 49 days (7 weeks).
Although the elimination of delayed applications for leave to appeal may be somewhat helpful, this revision is neither significant nor sufficient to truly expedite these cases in the Supreme Court. These recent amend mente to MCR 7.302 do not address the real problem of delay — this Court’s own actions — as highlighted by this case. The amendments impose time restrictions on the parties, but not on the Supreme Court itself. These amendments would have had no effect on the 13 months that this case, which was timely filed, spent in the Supreme Court.
This Court should act promptly to take a second step by publishing and adopting a court rule that will significantly reduce delays by the Supreme Court in termination-of-parental-rights cases. To this end, as promised in my May 20, 2003, statement of nonparticipation, I propose the following court rule for termination-of-parental-rights cases. The proposed court rule also suggests strict time limits on appeals in the Michigan Court of Appeals, which the Court of Appeals dependency appeals work group and this Supreme Court should consider. I urge this Court to publish and offer the proposed court rale for public comment.
If this proposed court rale were adopted, an appeal would be in the Court of Appeals for not longer than thirty-five (35) weeks [eight (8) months] and in the Supreme Court for not longer than thirteen (13) weeks [three (3) months]. The goal of this proposed rale is to ensure that at most eleven (11) months, not the twenty-two (22) months that this case took, would elapse from the date a claim of appeal is filed to the date that a final decision is issued by the Supreme Court.
In that statement I noted that there are no court rules establishing the procedure for a Michigan Supreme Court justice’s decision whether to refrain from participation in a case, that the decision traditionally had been left to the discretion of the individual justices, and that nothing of that decision-making process had been revealed to the public.
I proposed for public comment amendments to Michigan Court Rule 2.003, which would provide that when the issue of disqualification is raised, a justice should publish in the record of the case the reasons for the decision to participate in the case or not, and would outline the proce dure for a justice to raise his potential disqualification with the parties and their attorneys:
(C) (5) Disqualification of a Justice. If a justice’s participation in a case is challenged by a written motion or if the issue of participation is raised by the justice or another justice, the challenged justice shall decide the issue and publish in the record of the case that justice’s reasons for the decision to participate or not.
(D) (2) Procedure for a Justice. If it appears that there may be grounds or possible grounds for disqualification, the justice may have the clerk of the supreme court send the parties the justice’s written explanation of the grounds or possible grounds for disqualification, and ask the parties and their attorneys to consider whether to waive any disqualification. If, following disclosure of any grounds or possible grounds for disqualification other than personal bias or prejudice concerning a party, the parties all notify the clerk of the supreme court in writing that the justice should not be disqualified, and the justice is then willing to participate, the justice may participate in the case.
I continue to follow this procedure in this motion for rehearing.
In September, 2002, the Court of Appeals convened a dependency appeals work group, which has been examining ways to reduce the time it takes to receive and resolve appeals involving a termination of parental rights and those involving custody of minor children. This case was resolved in the Court of Appeals in a timely fashion — within eight months. My proposed rale would ensure that future cases would be resolved in a similarly timely fashion. | [
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Young, J.
We granted leave to appeal in these cases to consider whether the lower courts properly applied the exclusionary rule to evidence seized pursuant to (1) a search warrant that was issued in violation of MCL 780.653 and (2) a bench warrant that was issued in violation of MCR 3.606(A).
Because we conclude that neither the statute nor the court rule contemplates application of the exclusionary rule, we reverse in both cases. In People v Hawkins (see unpublished opinion per curiam of the Court of Appeals, issued September 28, 2001 [Docket No. 230839]), we hold that evidence of firearms and cocaine seized pursuant to a search warrant should not have been suppressed on the ground that the warrant was issued in violation of the affidavit requirements of MCL 780.653(b). In People v Scherf (see 251 Mich App 410; 651 NW2d 77 [2002]), we hold that evidence of marijuana seized from defendant following his arrest should not have been suppressed on the ground that the bench warrant pursuant to which he was arrested was issued in violation of the affidavit requirements of MCR 3.606(A).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. PEOPLE v HAWKINS
Detective Todd Butler of the Grand Rapids Police Department received tips from two informants that illegal controlled substances were being sold from a residence located at 921 Humbolt, S.E., in Grand Rapids. On the basis of the information provided by these sources, Butler sought a search warrant to search the residence. Butler’s affidavit set forth the following facts in support of the issuance of the warrant:
1. Your affiant received information from an informant on 10/14/99 that the resident of 921 Humbolt S.E. was involved in the sale of narcotics. The informant stated the residence [sic] is selling the controlled substance crack cocaine. The informant described the resident and seller of the controlled substance as “Chris,” B/M, approx. 20, 5’8”, 170 [lbs], medium build/complexion, short hair.
2. Your affiant met with a reliable and credible informant on 11/3/99. Your affiant was advised that the informant had observed the controlled substance cocaine available for sale from the residence within the past 36 hours.
3. Your affiant was advised by the informant the entry door to the suspects [sic] apartment has been reinforced to delay a police entry.
On November 3, 1999, a judge of the 61st District Court issued the requested warrant, and the residence was searched the same day. During the search, police seized two stolen firearms, approximately 20 grams of cocaine, and other contraband. Defendant, who was not present during the search, was stopped by police while driving his vehicle. Defendant was then arrested and later bound over for trial on several charges.
Defendant sought suppression of the evidence seized in the execution of the search warrant, arguing that the affidavit in support of the warrant was con stitutionally deficient in that it did not support a finding of probable cause, the information it contained was stale, and it did not clearly reveal whether one or two informants had supplied the information. Defendant additionally contended that the affidavit did not meet the requirements of MCL 780.653(B) because it did not include information concerning the credibility of the unnamed informants or the reliability of the information they supplied.
The circuit court granted defendant’s motion to suppress the evidence and dismissed the case on the grounds that the affidavit was both constitutionally deficient and in violation of MCL 780.653. The court declined the prosecutor’s invitation to apply the federal “good-faith exception,” under which the Fourth Amendment exclusionary rule is not applicable to evidence seized by officers acting in reasonable reliance on a warrant that is subsequently adjudged constitutionally deficient.
On appeal, the Court of Appeals affirmed the circuit court’s order to suppress evidence on the sole basis that the affidavit supporting the search warrant did not meet the requirements of MCL 780.653. Slip op at 3. The panel concluded that People v Sloan, 450 Mich 160; 538 NW2d 380 (1995), in which this Court held that evidence obtained under a search warrant issued in violation of § 653 must be suppressed, was dispositive. Slip op at 2. Accordingly, the panel declined to address the constitutionality of the warrant or the prosecution’s argument that the good-faith exception was applicable. Id. at 3.
We granted the prosecution’s application for leave to appeal to this Court, limited to the issue whether the exclusionary rule applies to a violation of § 653. 466 Mich 860 (2002).
B. PEOPLE v SCHERF
In a prior case, defendant pleaded guilty of manufacturing with intent to deliver between five and forty-five kilograms of marijuana in violation of MCL 333.7401(2)(D)(ii) and was sentenced to probation. Defendant allegedly moved out of Michigan without permission and thereafter failed to report to his probation officer in violation of two of the terms of his probation. Consequently, defendant’s probation officer filed a standard form petition requesting that a bench warrant be issued for his arrest. The petition contained the following statements:
Petitioner requests that a bench warrant be issued and Michael Brandon Scherf be arrested and held in contempt of court for the following reason(s):
Violation of Rule Number 3: The defendant has failed to report as ordered and his whereabouts are unknown. Violation of Rule Number 4: Failure to notify agent of change of address.
The petition contained the statement, “I declare that the statements above are true to the best of my information, knowledge, and belief,” and was signed by the probation officer. The district court issued the requested bench warrant.
Subsequently, police were interviewing defendant in connection with an unrelated larceny complaint when they discovered, via the Law Enforcement Information Network (lein), the outstanding bench warrant for his arrest. Defendant was arrested pursuant to the warrant. During a search incident to the arrest, police seized several grams of marijuana from defendant’s person. Thereafter, defendant was charged with possession of marijuana in violation of MCL 333.7403(2)(d).
Defendant sought suppression of evidence of the marijuana on the ground that the bench warrant petition was technically deficient in that it was not supported by affidavits as required by MCR 3.606(A), which governs contempt offenses committed outside the immediate presence of the court. The prosecutor conceded that MCR 3.606(A) was violated because no affidavit was submitted in support of the probation officer’s petition. The prosecutor argued, however, that the district court division of the Isabella County Trial Court should apply the federal “good-faith exception” to the exclusionary rule. The district court division denied defendant’s motion, holding that the bench warrant petition was confirmed by oath or affirmation and was therefore properly issued. Additionally, the district court division noted that it found Arizona v Evans, 514 US 1; 115 S Ct 1185; 131 L Ed 2d 34 (1995), which reaffirmed and applied the good-faith exception, to be persuasive authority.
Defendant appealed, and the circuit court reversed the district court division’s order, granted defendant’s motion to suppress the marijuana evidence, and dismissed the case. The court held that although the failure to provide an affidavit with the bench warrant petition was merely “technical,” it rendered the warrant invalid. The court rejected the prosecutor’s argument that the good-faith exception was applicable, stating on the record that the exception was not recognized in Michigan.
The prosecutor sought leave to appeal to the Court of Appeals, asserting that the good-faith exception should be applied under the circumstances. The Court granted the prosecutor’s application and affirmed the circuit court division’s order. 251 Mich App 410. The majority noted that the bench warrant petition “was not supported by an affidavit as required by MCR 3.606,” id. at 411, and that “it is undisputed that defendant’s arrest, and the resultant search of defendant and seizure of evidence, were based on an invalid bench warrant and, therefore, the arrest and consequential search were unlawful,” id. at 415. The majority indicated that it would have applied the good-faith exception to the exclusionary rule and reversed the circuit court division’s decision if it were not obligated under MCR 7.215(I)(1) to follow People v Hill, 192 Mich App 54; 480 NW2d 594 (1991), in which another panel of the Court specifically declined to recognize the good-faith exception to the exclusionary rule. 215 Mich App 415-416.
This Court granted the prosecutor’s application for leave to appeal the judgment of the Court of Appeals. 467 Mich 856 (2002).
II. STANDARD OF REVIEW
Questions of law relevant to a motion to suppress evidence are reviewed de novo. People v Hamilton, 465 Mich 526, 529; 638 NW2d 92 (2002); People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999).
We must determine in these cases whether suppression of evidence is required when MCL 780.653 or MCR 3.606(A) has been violated. Where a state statute is involved, “whether suppression is appropriate is a question of statutory interpretation and thus one of legislative intent.” People v Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001), quoting Stevens, supra at 644, quoting People v Wood, 450 Mich 399, 408; 538 NW2d 351 (1995) (Boyle, J., concurring). Similarly, “[t]he interpretation of a court rule is a question of law and is reviewed de novo.” Hinkle v Wayne Co Clerk, 467 Mich 337, 340; 654 NW2d 315 (2002); see also People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002).
III. ANALYSIS
A. INTRODUCTION
First and foremost, it is important to understand what is not before this Court in deciding the issues presented in these cases. We are concerned solely with application of the exclusionary rule to a statutory violation (People v Hawkins) and to a court rule violation (People v Scherf). The judgment of the Court of Appeals in Hawkins was based exclusively on the conceded violation of MCL 780.653, and the Court specifically declined to address the constitutional validity of the search warrant affidavit or the good-faith exception to the constitutional exclusionary rule. Likewise, in Scherf we are not concerned with the constitutional validity of the bench warrant or of the potential application of the good-faith exception. Although the Court of Appeals majority in Scherf indicated a willingness to apply the good-faith exception in order to avoid suppression of the evidence for the conceded violation of MCR 3.606(A), application of that exception would have been wholly premature, given that neither the circuit court division nor the Court of Appeals panel had found a constitutional violation in the first instance.
With that in mind, we must determine whether the statutory and court rule violations in these cases warrant suppression of the evidence.
B. THE EXCLUSIONARY RULE
The exclusionary rule is a judicially created remedy that originated as a means to protect the Fourth Amendment right of citizens to be free from unreasonable searches and seizures. See Stevens, supra at 634-635; see also Weeks v United States, 232 US 383; 34 S Ct 341; 58 L Ed 652 (1914), overruled on other grounds in Elkins v United States, 364 US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960); Adams v New York, 192 US 585; 24 S Ct 372; 48 L Ed 575 (1904); Boyd v United States, 116 US 616; 6 S Ct 524; 29 L Ed 746 (1886). The exclusionary rule, modified by several exceptions, generally bars the introduction into evidence of materials seized and observations made during an unconstitutional search. Stevens, supra at 634, 636. However, application of the exclusionary rule is not constitutionally mandated, and
[t]he question whether the exclusionary rule’s remedy is appropriate in a particular context [is] regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. [Illinois v Gates, 462 US 213, 223; 103 S Ct 2317; 76 L Ed 2d 527 (1983).]
Moreover, the exclusionary rule is not designed to “make whole” a citizen who has been subjected to an unconstitutional search or seizure. Rather, the aim of the rule is one of police deterrence:
The wrong condemned by the [Fourth] Amendment is “fully accomplished” by the unlawful search or seizure itself . . . and the exclusionary rule is neither intended nor able to “cure the invasion of the defendant’s rights which he has already suffered.” . . . The rule thus operates as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” .... [United States v Leon, 468 US 897, 906; 104 S Ct 3407; 82 L Ed 2d 677 (1984).]
Irrespective of the application of the exclusionary rule in the context of a constitutional violation, the drastic remedy of exclusion of evidence does not necessarily apply to a statutory violation. Whether the exclusionary rule should be applied to evidence seized in violation of a statute is purely a matter of legislative intent. Hamilton, supra at 534.
“ ‘Because our judicial role precludes imposing different policy choices from those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. . . . When a statute is clear and unambiguous, judicial construction or interpretation is unnecessary and therefore, precluded.’ ” [Sobczak-Obetts, supra at 694-695 (citations omitted).]
Likewise, whether suppression of evidence on the basis of the violation of a court rule is appropriate is controlled by the language of the rule. “This Court applies principles of statutory interpretation to the interpretation of court rules. When the language is unambiguous, we must enforce the meaning plainly expressed, and judicial construction is not permitted.” Hinkle, supra at 340.
C. PEOPLE v HAWKINS
At issue in Hawkins is whether evidence seized from a residence pursuant to a search warrant was properly suppressed because the affidavit supporting the search warrant did not meet the requirements of MCL 780.653 in Michigan’s search warrant act, MCL 780.651 to 780.659. MCL 780.653 provides, in pertinent part:
The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her. The affidavit may be based upon information supplied to the complainant by a named or unnamed person if the affidavit contains 1 of the following:
* * *
(b) If the person is unnamed, affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information and either that the unnamed person is credible or that the information is reliable.[ ]
MCL 780.653(b) derives from the defunct “two-pronged test” enunciated by the United States Supreme Court in Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969), for detemiining whether an anonymous informant’s tip established probable cause for issuance of a search warrant. See People v Sherbine, 421 Mich 502, 509; 364 NW2d 658 (1984). Under the Agui lar-Spinelli formulation as it was generally understood, a search warrant affidavit based on information supplied by an anonymous informant was required to contain both (1) some of the underlying circumstances evidencing the informant’s basis of knowledge and (2) facts establishing either the veracity or the reliability of the information. See Gates, supra at 228-229; Sherbine, supra at 509.
This Court has previously held that a violation of the affidavit requirements of MCL 780.653 warranted suppression of evidence. Sloan, supra-, Sherbine, supra. Because we are unable to conclude that the Legislature intended application of the exclusionary rule where the requirements of § 653 have not been met, we overrule Sloan and Sherbine to the extent that they so hold, and we conclude that defendant was not entitled to suppression of evidence on the basis of the statutory violation.
In Sherbine, this Court held that suppression of evidence was required where a search warrant affidavit violated a previous version of § 653 in that it did not make any showing that an informant was a credible person and that he supplied reliable information. Although this Court specifically declined to decide whether satisfaction of the federal Aguilar-Spinelli test is required under Const 1963, art 1, § 11 — that is, whether the requirements of § 653 are rooted in Michigan’s constitutional search and seizure provision— this Court nevertheless applied the exclusionary rule to the statutory violation. In so doing, this Court failed to examine the language of § 653 to determine whether the Legislature intended that such a drastic remedy be applied to a violation of the statutory affidavit requirements. Rather, this Court relied on People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), in which this Court similarly applied the exclusionary rule to a statutory violation without performing the requisite examination of legislative intent. We concluded, “The statutory violation here is clear. The statute requires proof that the informant who sup plied the information be credible. The affidavit here failed to satisfy this requirement. The evidence must therefore be suppressed.” Sherbine, supra at 512.
Justice Boyle dissented, opining that preamendment § 653 required a showing of either reliability or credibility, and that this Court had misconstrued the statute as an expansion of Aguilar. Sherbine, 421 Mich 513-514. Additionally, Justice Boyle questioned whether suppression of the evidence was required under the circumstances: “I cannot conceive of a reason why we should apply the exclusionary rule to the supposed violation of a statute where the affidavit would pass constitutional muster under either Const 1963, art 1, § 11, or US Const, Am IV . . . .” Id. at 516.
In Sloan, this Court held that a violation of a different provision in the current version of § 653 required application of the exclusionary rule. A search warrant was issued to obtain a blood test from the defendant, who was later charged with manslaughter with a motor vehicle, operating a motor vehicle while under the influence of intoxicating liquor causing death, and felonious driving. The portion of § 653 at issue was the provision that “[t]he magistrate’s finding of reasonable or probable cause shall be based on all the facts related within the affidavit made before him or her.” This Court held that this provision was violated when the magistrate looked beyond the affidavit, to unrecorded oral testimony of a police officer, in issuing the search warrant. Rely ing on Sherbine, this Court further concluded that the blood test evidence had to be excluded because of the statutory violation:
In Sherbine, we held that evidence obtained specifically in violation of MCL 780.653 . . . must be excluded. The Legislature appears to have acquiesced in this particular construction of MCL 780.653 .... While the Legislature subsequently amended MCL 780.653 . .. because it disagreed with portions of our statutory analysis provided in Sherbine, it is significant that the Legislature when instituting such amendments did not alter our holding that evidence obtained in violation of the statute must be excluded. To change the law in that regard would have been an easy and convenient task for the Legislature. Neither the language in the amendments, nor the legislative history pertinent to the amendments provide a basis for concluding that a sanction other than exclusion is appropriate for the violation of MCL 780.653 .... Clearly, the Legislature shares our view that no remedy other than exclusion is as likely to assure the full enforcement of all of the requirements under MCL 780.653 . . . — a statute specifically designed by the Legislature to implement the constitutional mandate for probable cause under Const 1963, art 1, § 11. [Sloan, supra at 183-184.]
Justice Boyle, joined by Justices Riley and Weaver, dissented, arguing that the statute was complied with and that, in any event, a violation of § 653 did not require application of the exclusionary rule:
Application of the exclusionary rule to any technical violation of our search warrant statute that may have occurred in the present case is unwarranted. Particularly where the magistrate is a sitting judge, as are virtually all magistrates in this state, I cannot conclude that the risk of relying on after-the-fact allegations are [sic] so substantial that we must suppress evidence. The exclusionary rule is intended to serve a deterrent purpose, and loses any useful force and effect when applied to technical errors that do not rise to the level of negligent or wilful conduct, serving then only to deprive the trier of fact of relevant and probative evidence. As explained by the United States Supreme Court in Michigan v Tucker, 417 US 433, 446-447; 94 S Ct 2357; 41 L Ed 2d 182 (1974):
* * *
“The deterrent purpose of the exclusionary rale necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pin-sued in complete good faith, however, the deterrence rationale loses much of its force.” [Sloan, supra at 200 (Boyle, J., dissenting).]
Justice Boyle additionally criticized the majority’s invocation of the “legislative acquiescence” doctrine:
The majority’s assertion of legislative acquiescence in the decision in Sherbine ... to use of the exclusionary rale to suppress evidence obtained in alleged violation of the statute before us is wholly mistaken. In Sherbine, this Court’s majority interpreted the former version of the statute as if it imposed a more restrictive standard than the Fourth Amendment and suppressed evidence on the basis of that consideration. The swift reaction of the Legislature was to amend MCL 780.653 ... to make it clear that the Court was incorrect in concluding that what had occurred was a statutory violation. The Legislature had no need to say what should not be excluded; it relied on the Court’s word that were it clear that the Legislature had authorized the warrant, suppression would not be ordered.
Acting on our representation, the amended legislation tracked the Fourth Amendment. Because “our holding that evidence obtained in violation of the statute must be excluded” . . . was wholly derived from our narrow reading of MCL 780.653 . . . , the legislative amendment of the statute is not an acquiescence in, but rather a repudiation of, the view in Sherbine that the evidence should be excluded. [Sloan, supra at 202-203 (Boyle, J., dissenting).]
We agree with Justice Boyle and once again reaffirm that where there is no determination that a statutory violation constitutes an error of constitutional dimensions, application of the exclusionary rule is inappropriate unless the plain language of the statute indicates a legislative intent that the rule be applied. Hamilton, supra at 534; Sobczak-Obetts, supra at 694. Moreover, we reject the Sloan Court’s conclusion that the Legislature’s silence constituted agreement with this Court’s application of the exclusionary rule in Sherbine. As we have repeatedly stated, the “legislative acquiescence” principle of statutory construction has been squarely rejected by this Court because it reflects a critical misapprehension of the legislative process. See Robertson v DaimlerChrysler Corp, 465 Mich 732, 760 n 15; 641 NW2d 567 (2002); Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 177-178 n 33; 615 NW2d 702 (2000). Rather, “Michigan courts [must] determine the Legislature’s intent from its words, not from its silence.” Donajkowski v Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999).
The dissent asserts that “the majority [has] imposed its own policy on the Legislature . . . .” Post at 522. Respectfully, we disagree and believe that it is not this majority but the Sherbine and Sloan majorities that imposed their own policy choices on the Legislature with respect to the application of the exclusion ary rule to a violation of § 653. Citing nothing in the text of the statute, the Sherbine Court simply declared, without further analysis, that because the statute was violated, “[t]he evidence must... be suppressed.” Sherbine, supra at 512. Similarly, the Sloan majority opined that “no remedy other than exclusion is as likely to assure the full enforcement of all of the requirements under MCL 780.653 . . . .” Sloan, supra at 184.
The dissent purports to apply a “contextual analysis” of § 653 in reaching the conclusion that the Legislature intended the exclusionary rule to apply to a violation of that statute. Yet, as the dissenters readily admit, the text of § 653 is entirely silent in this regard. Post at 515, generally. Clearly, there is no principled basis for the contention that this Court’s injection of the exclusionary rule in Sherbine and Sloan is grounded in the statutory text.
The dissent attempts to draw a distinction between legislative silence and reenactment of a statute following judicial interpretation. While we have no reason to contest that the “reenactment doctrine” can sometimes be a useful tool for determining legislative intent where the statutory language is ambiguous, such a tool of construction may not be utilized to subordinate the plain language of a statute. This Court’s constitutional charge to interpret the laws does not end merely because the Legislature reenacts a statute. In the absence of a clear indication that the Legislature intended to either adopt or repudiate this Court’s prior construction, there is no reason to subordinate our primary principle of construction-to ascertain the Legislature’s intent by first examining the statute’s language-to the reenactment rule.
The Legislature has stated its views on the construction of its statutes, in part by providing that all words and phrases that are not terms of art be given their “common and approved” meanings. MCL 8.3a. Such is consistent with our most fundamental principle of construction that there is no room for judicial interpretation when the Legislature’s intent can be ascertained from the statute’s plain and unambiguous language. See Stanton v Battle Creek, 466 Mich 611, 615; 647 NW2d 508 (2002). Accordingly, we decline to apply the “reenactment rule” when the Legislature’s intent is evidenced by the plain language of the statute and there is no clear indication of any intent to adopt or repudiate this Court’s prior construction.
Nothing in the plain language of § 653 provides us with a sound basis for concluding that the Legislature intended that noncompliance with its affidavit requirements, standing alone, justifies application of the exclusionary rule to evidence obtained by police in reliance on a search warrant. Moreover, applica tion of the exclusionary rule is particularly inappropriate under the circumstances of this case, where the objective of the rule — to sanction police misconduct as a means of deterrence — would not be served. See Sobczak-Obetts, supra at 712. Because we applied the exclusionary rule to the statutory violations at issue in Sherbine and Sloan without performing the requisite examination of legislative intent, we are compelled to overrule those decisions to the extent that they conflict with today’s holding.
Accordingly, we conclude that the Court of Appeals erred in holding that suppression of the evidence was required as a remedy for the violation of § 653 in this case. Because the Court of Appeals declined to address the prosecutor’s additional arguments on appeal, we remand this matter to that Court for further proceedings.
D. PEOPLE v SCHERF
The Court of Appeals held in Scherf that a bench warrant issued in violation of a court rule was invalid and that suppression of evidence obtained in connection with defendant’s arrest pursuant to that warrant was therefore required. We disagree.
MCR 3.606(A) provides:
Initiation of Proceeding. For a contempt committed outside the immediate view and presence of the court, on a proper showing on ex parte motion supported by affidavits, the court shall either
(1) order the accused person to show cause, at a reasonable time specified in the order, why that person should not be punished for the alleged misconduct; or
(2) issue a bench warrant for the arrest of the person.
Nothing in the wording of MCR 3.606(A) provides any indication that the exclusionary rule should be applied to a violation of its affidavit requirement. To engraft the exclusionary rule — a harsh remedy designed to sanction and deter police misconduct where it has resulted in a violation of constitutional rights — onto the technical provisions of a rule of court in this manner would extend the deterrent well beyond its intended application. Indeed, the task of scrutinizing the police papers submitted in support of a warrant for technical compliance with the law falls squarely with the judicial officer. In the absence of language evincing an intent that suppression of evidence should follow from the violation of MCR 3.606(A), we decline to infer one.
IV. CONCLUSION
The exclusionary rule was improperly applied to the violations of the statutoiy and court rule affidavit requirements at issue in these cases. We cannot conclude, on the basis of the plain language of MCL 780.653, that the Legislature intended that noncompliance with its terms should result in suppression of evidence obtained by police acting in reasonable and good-faith reliance on a search warrant. Likewise, MCR 3.606(A) does not provide for suppression of evidence on the basis of noncompliance with its affidavit requirement, and we decline to infer an intent that the exclusionary rule should apply under these circumstances.
In Hawkins, we reverse the judgment of the Court of Appeals and remand to that Court for further proceedings. In Scherf we reverse the judgment of the Court of Appeals and remand the matter to the district court division for further proceedings. We do not retain jurisdiction.
Corrigan, C.J., and Taylor and Markman, JJ., concurred with Young, J.
These cases have not yet been tried. Our statement of facts is derived from the preliminary examination and motion hearing transcripts and from the documentation contained in the lower court records.
Defendant was charged with possession with intent to deliver less than 50 grains of cocaine, MCL 333.7401(2)(a)(iv); maintaining a drug house, MCL 333.7405(l)(d); possession of a firearm by a felon, MCL 750.224Í; driving with a suspended license, MCL 257.904(3)(b); and two counts of receiving and concealing a stolen firearm, MCL 750.535b. Additionally, defendant was charged with being a second-time drug offender, MCL 333.7413(2), and a fourth-time felony offender, MCL 769.12.
See Arizona v Evans, 514 US 1; 115 S Ct 1185; 131 L Ed 2d 34 (1995); United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984).
Judge Jessica R. Cooper concurred in the result only.
The Court subsequently declined to convene a special panel to resolve the potential conflict with Hill, supra. People v Scherf, 251 Mich App 805 (2002).
See also People v Hudson, 465 Mich 932 (2001).
Moreover, defendant Scherf did not preserve for our review any argument that the affidavit in support of the issuance of the bench warrant was constitutionally deficient. Rather, his sole argument in support of his motion to suppress was that the affidavit did not meet the technical requirements of MCR 3.606(A).
For example, the “good-faith exception,” which has been asserted by the prosecutors in the cases at bar, permits admission of evidence seized by police officers in reasonable reliance on a constitutionally defective search warrant. See Arizona, supra; Leon, supra. As noted, because of the procedural posture of the instant cases, we do not reach the constitutionality of the warrants at issue and, consequently, we do not address the applicability of the good-faith exception to a violation of Michigan’s counterpart to the Fourth Amendment, Const 1963, art 1, § 11. We note that leave has recently been granted in People v Goldston, 467 Mich 939 (2003), in which this Court will consider whether to adopt and apply a good-faith exception to the exclusionary rule.
The exclusionary rule is particularly harsh in that it is neither narrowly tailored nor discerning of the magnitude of the error it is intended to deter. By taldng no cognizance of the effect of a police error upon a particular defendant, or of the actual guilt or innocence of a defendant, the exclusionary rule lacks proportionality. Given these characteristics, we decline to expand the use of this rule in the absence of an explicit constitutional or legislative requirement.
Section 1 of the search warrant act, MCL 780.651, provides in part:
(1) When an affidavit is made on oath to a magistrate authorized to issue warrants in criminal cases, and the affidavit establishes grounds for issuing a warrant pursuant to this act, the magistrate, if he or she is satisfied that there is probable cause for the search, shall issue a warrant to search the house, building, or other location or place where the property or thing to be searched for and seized is situated.
In Gates, the United States Supreme Court abandoned the AguilarSpinelli two-pronged test in favor of a “totality of the circumstances” approach. Accordingly, in determining whether a search warrant affidavit that is based on hearsay information passes Fourth Amendment muster,
[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Gates, supra at 238.]
In 1984, § 653 provided:
The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein.
We concluded in Sherbine that preamendment § 653 expanded the Aguilar-Spinelli test to require that the affidavit set forth facts showing both that a confidential informant was credible and that the information was reliable. Sherbine, supra at 509-510. The current version of § 653, as amended by 1988 PA 80, makes clear that a showing of either credibility or reliability is required.
In Dixon, this Court held that suppression of evidence was required, and reversed the defendant’s conviction on the ground that a search of the defendant at a police station was in derogation of his right to bail under MCL 780.581. This Court cited decisions from California and Oregon courts suppressing evidence for similar statutory violations, but noted that in several of those decisions the courts specifically found Fourth Amendment violations. Id. at 704, n 18. Acknowledging that its decision was not premised on the Fourth Amendment, id., this Court nevertheless concluded that suppression of evidence obtained in derogation of the statutory right to bail was required because “no other remedy [was] as likely to assure its full enforcement,” id. at 705.
MCL 750.321.
MCL 257.625(4).
MCL 752.191.
As in Sherbine, the Sloan Court specifically stated that it was not addressing whether the probable cause determination was constitutionally defective. Sloan, supra at 183 n 17. Indeed, this Court noted that the affidavit requirement of § 653 was not constitutionally mandated under either Const 1963, art 1, § 11 or the Fourth Amendment. Id.
Taken to its logical conclusion, application of the reenactment doctrine under circumstances such as those present in the case at bar would undoubtedly lead to results never anticipated or intended by the Legislature. For example, suppose that the Legislature amends a statutory code to make all pronouns gender-neutral, but otherwise reenacts the code as originally written. It would be neither accurate nor reasonable to pre sume, as the dissent would have us do, that the Legislature intended to adopt in toto every appellate decision construing or applying the code.
Even the United States Supreme Court has acknowledged that there has been no stable, consistent formulation of this amorphous doctrine. Helvering v Griffiths, 318 US 371, 396; 63 S Ct 636; 87 L Ed 843 (1943). Under the broadest formulation of the reenactment doctrine, there is no reason why only judicial interpretations of statutes should be incorporated by implication upon reenactment of a statute. Indeed, even administrative interpretations of statutes have been recognized as binding. See United States v Safety Car Heating & Lighting Co, 297 US 88, 95; 56 S Ct 353; 80 L Ed 500 (1936).
Our point is not that the reenactment doctrine, properly limited and applied, is without value as a statutory construction aid, but that it cannot be employed indiscriminately and without recognition of the fact that its more expansive versions impose an unreasonable burden on the Legislature to affirmatively scan our appellate casebooks to discern judicial constructions of statutes that the Legislature desires for entirely other reasons to amend. Applying the reenactment rule here would, in our view, be the effective equivalent of imposing an affirmative duty on the Legislature to keep abreast of all binding judicial pronouncements involving the construction of statutes and to revise those statutes to repudiate any judicial construction with which it disagrees. For similar reasons, we have rejected precisely such a duty in other contexts. See, e.g., Donajkowski, supra at 261-262.
To apply the reenactment doctrine under these circumstances would not only likely fail to give effect to legislative intent, but would also presumably violate separation of powers principles. See Grabow, Congressional silence and the search for legislative intent: A venture into “speculative unrealities,” 64 BUL R 737, 759-761 (1984). Accordingly, before we ignore the plain meaning of the text of a statute, we reject formulations of the reenactment doctrine involving circumstances that fail to demonstrate the Legislature’s conscious consideration of a judicial decision, coupled with some compelling indication that the Legislature intended to accept or reject that interpretation. As is illustrated by Justice Boyle’s dissent in Sloan, discussed ante at 505-507, it is a perilous exercise to attempt to discern legislative intent from the Legislature’s silence, even when a statutory amendment responds to some portion of a judicial decision. See Sloan, supra at 202-203.
We note that in the case of a term of art, application of the “reenactment rule” would generally be appropriate because such a term by definition carries with it the construction accorded it by the courts. See People v Law, 459 Mich 419, 425 n 8; 591 NW2d 20 (1999). In contrast, in this case we are confronted with the amendment of a statute following the imposition of a judicially created remedy that is grounded nowhere in the text of the statute. Our dissenting colleagues opine that “the Legislature could have easily modified the applicability of the exclusionary rule when enacting 1988 PA 80,” post at 519, and that therefore the Legislature must have intended to adopt, sub silentio, the exclusionary rule. However, an equally plausible conclusion is that, because the Legislature could easily have modified the statute to expressly provide for the application of the exclusionary rule, it must have intended to reject this Court’s decision in Sherbine. This precisely illustrates one of the reasons that the “legislative acquiescence” doctrine is an untrustworthy indicator of legislative intent, as well as why the “reenactment rule” should not be applied as an aid in interpreting legislative silence.
Any error concerning the search warrant in this case rests squarely on the shoulders of the district court judge, whose duty it is to ensure that warrants are issued in compliance with state and federal law. There is no indication in the record that the officer who applied for the search warrant, or the officers who executed the warrant, acted improperly.
Indeed, we note that the Legislature has specifically provided for a sanction in the case of misconduct in the execution or procurement of a search warrant. See MCL 780.657 (“[a]ny person who in executing a search warrant, wilfully exceeds his authority or exercises it with unnecessary severity, shall be fined not more than $1,000.00 or imprisoned not more than 1 year”); MCL 780.658 (“[a]ny person who maliciously and without probable cause procures a search warrant to be issued and executed shall be fined not more than $1,000.00 or imprisoned not more than 1 year”). That the Legislature has elected to deter police misconduct in the manner indicated by MCL 780.657 and MCL 780.658 further evidences the lack of any legislative intent that the exclusionary rule be applied under the circumstances of this case.
Our dissenting colleagues charge us with ignoring this Court’s prohibition-era decisions in People v Knopka, 220 Mich 540; 190 NW 731 (1922), People v Moten, 233 Mich 169; 206 NW 506 (1925), People v Bules, 234 Mich 335; 207 NW 818 (1926), and People v Galnt, 235 Mich 646; 209 NW 915 (1926), all of which involved search warrant requirements as set forth in § 27 of Michigan’s “liquor law,” 1922 CL 7079(27). As we explained in Sobczak-Obetts, supra, Knopka involved a violation of Const 1908, art 2, § 10, not merely a statutory violation. The Moten, and Buies Courts applied, without analysis, the Knopka exclusionary rule to purely statutory search warrant violations. The Galnt Court, similarly to the Knopka Court, expressly found a constitutional violation. The Moten and Buies decisions, which conclusorily applied the exclusionary rule without determining that there was any constitutional violation, are distinguishable in any event because they did not involve the search warrant statute at issue. See Sobczak-Obetts, supra at 700 n 11. Moreover, as we noted in Sobczak-Obetts, supra at 707, the statutory violations in Moten, Bules, and Galnt pertained to the warrant form; in such a case, “the resulting search may be constitutionally defective.” (Emphasis in original.) As we have taken pains in this opinion to malee clear, we are reviewing only the Court of Appeals application of the exclusionary rule to the alleged violations of a statute and a court rule, and we do not address any claims that the warrants at issue were constitutionally insufficient.
In light of the prosecutor’s concession of error, we need not address whether the issuance of the bench warrant was actually violative of the affidavit requirement of MCR 3.606(A). | [
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Per Curiam.
This case presents the question whether a successor personal representative has two years after appointment to file an action on behalf of an estate under the wrongful death saving statute, MCL 600.5852, or whether the two-year period is measured from the appointment of the initial personal representative. The Court of Appeals affirmed summary disposition for defendants, holding that the plain language of the statute refers only to one set of letters of authority issued to the personal representative. 248 Mich App 640; 645 NW2d 279 (2001). However, the Court of Appeals misread the statute and then relied on that erroneous reading in reaching its decision. We reverse the judgments of the circuit court and the Court of Appeals because the statutory language simply provides that the two-year grace period is measured from the issuance of letters of authority.
i
Decedent received kidney dialysis treatment from defendants-appellees on June 21, 1996. She died the next day.
Decedent’s widower was appointed temporary personal representative and issued letters of authority on April 4, 1997. He died on August 20, 1997.
Plaintiff, the son of the decedent and the first personal representative, was appointed successor personal representative, and letters of authority were issued to him on December 8, 1998. Plaintiff filed a complaint alleging medical malpractice on June 9, 1999.
Defendants moved for summary disposition under MCR 2.116(C)(7). Defendants argued that the action is barred by the two-year statute of limitations, MCL 600.5838a(2), which, they claimed, expired on June 21, 1998, two years after decedent’s last treatment. Defendants also argued that the wrongful death saving statute, MCL 600.5852, does not apply because the complaint was not filed within two years after the appointment of the first personal representative on April 4, 1997. Plaintiff responded that another two-year period began when he was appointed as successor personal representative. The circuit court agreed with defendants and granted summary disposition.
On appeal as of right, the Court of. Appeals affirmed. The Court characterized plaintiff’s argument as one advocating an “expansive reading” of the statute, whereas the law requires that the saving provision be given a “narrow reading,” citing this Court’s decision in Lindsey v Harper Hosp, 455 Mich 56, 65; 564 NW2d 861 (1997). The Court held that the statute should instead be construed and applied according to its plain terms.
Furthermore, the plain language of the saving clause refers to one set or “the” letters of authority, not multiple letters of authority. The statute applies to “the” personal representative, not “a” personal representative, which might suggest that any personal representative who receives letters of authority, initially or as a successor, has two years to file a claim. Clearly, if the Legislature had intended that the two-year grace period begin anew each time an appointment is terminated and a new appointment made, it could have easily done so by specifically stating as much. Absent language to that effect, we are bound to construe the saving provision strictly: the two-year limitation period begins when the probate court issues the letters of authority to the personal representative, regardless of whether the court later appoints one or more successor personal representatives. [248 Mich App 649.]
Plaintiff has applied for leave to appeal.
n
We review de novo the interpretation and application of a statute as a question of law. If the language of a statute is clear, no further analysis is necessary or allowed. Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644 NW2d 730 (2002).
m
The question presented is of first impression. Although the Court of Appeals purported to construe and apply the plain language of MCL 600.5852, the Court misquoted the statute by inserting “the” before “letters of authority.”
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after [the] letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run. [Id]
The Court relied on this misquotation in holding that a personal representative must bring an action within two years after the initial letters of authority are issued to the first personal representative. This is not, however, what the statute says. The statute simply provides that an action may be commenced by the personal representative “at any time within 2 years after letters of authority are issued although the period of limitations has run.” Id. The language adopted by the Legislature clearly allows an action to be brought within two years after letters of authority are issued to the personal representative. The statute does not provide that the two-year period is measured from the date letters of authority are issued to the initial personal representative.
Plaintiff was “the personal representative” of the estate and filed the complaint “within 2 years after letters of authority [were] issued,” and “within 3 years after the period of limitations ha[d] run.” MCL 600.5852. The action was therefore timely.
Accordingly, we reverse the judgments of the circuit court and the Court of Appeals and remand this case to the circuit court for further proceedings. MCR 7.302(F)(1).
Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred.
The Court of Appeals did not explain how, if at all, a “narrow reading” of the statute would differ from its plain meaning. | [
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Markman, J.
This case concerns whether plaintiff acted as a real estate broker under § 2501(d) of the real estate brokers act (reba), MCL 339.2501 et seq. The trial court denied defendant’s motion for summary disposition after finding that a question of fact remained concerning whether plaintiff participated in negotiations regarding the sale of a business. The Court of Appeals reversed the order of the trial court and held that reba required plaintiff to be a licensed real estate broker because it had acted as a “finder.” We reverse the judgment of the Court of Appeals and remand this case to the trial court for a determination whether defendant’s transaction here constituted a “real estate” transaction for purposes of reba.
I. BACKGROUND
Plaintiff is a registered investment advisor, but it is not a licensed real estate broker. Plaintiff introduced itself to defendant, a security-systems company, in order to discuss how it might assist defendant in acquiring other security-systems companies. According to plaintiff, the parties entered into an oral contract, which specified that plaintiff would receive a “success fee” for any company plaintiff contacted on defendant’s behalf that defendant subsequently purchased. Plaintiff eventually introduced defendant to a company, MetroCell, a subsidiary of Rao Corporation. Subsequently, defendant purchased the alarm contracts of MetroCell and its customers, and plaintiff sought the “success fee.” However, defendant refused to pay, claiming that reba precluded plaintiff from bringing suit because plaintiff had acted as an unlicensed real estate broker. The trial court denied defendant’s motion for summary disposition, concluding that there was a genuine issue of material fact regarding whether plaintiff had acted as a “real estate broker.” The Court of Appeals, in a two-to-one decision, reversed. 247 Mich App 247; 635 NW2d 370 (2001). This Court granted plaintiff’s application for leave to appeal.
H. STANDARD OF REVIEW
Statutory interpretation is an issue of law that is reviewed de novo. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
ffl. ANALYSIS
This Court must determine whether plaintiff’s conduct fell within the scope of Michigan’s real estate brokers licensing act. To determine whether plaintiff acted as a “real estate broker,” this Court must first determine: (a) whether the Legislature intended the definition of “real estate broker” to encompass the brokerage of non-“real estate” transactions; and, if so, (b) whether plaintiff conducted itself as a “real estate broker,” as defined in § 2501(d) of the Occupational Code. MCL 339.101 et seq.
A. REBA LIMITED TO REAL ESTATE TRANSACTIONS
MCL 339.2501(d) provides:
“Real estate broker” means an individual ... [or entity] who with the intent to collect or receive a fee, compensation, or valuable consideration, sells or offers for sale, buys or offers to buy, provides or offers to provide market analysis, lists or offers or attempts to list, or negotiates the purchase or sale or exchange or mortgage of real estate, or negotiates for the construction of a building on real estate; who leases or offers or rents or offers for rent real estate or the improvements on the real estate for others, as a whole or partial vocation; who engages in property management as a whole or partial vocation; who sells or offers for sale, buys or offers to buy, leases or offers to lease, or negotiates the purchase or sale or exchange of a business, business opportunity, or the goodwill of an existing business for others; or who, as owner or otherwise, engages in the sale of real estate as a principal vocation. [Emphasis added.]
When construing a statute, the Court’s primaiy obligation is to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute. Chandler v Co of Muskegon, 467 Mich 315, 319; 652 NW2d 224 (2002). If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed. Tryc v Michigan Veterans' Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).
Real estate brokering is not the only profession regulated by the Legislature under the Occupational Code. MCL 339.101 et seq. Rather, the Code regulates a number of other professions, including public accounting, barbering, hearing-aid dealing, and residential building. See MCL 339.720 et seq.; MCL 339.1101 et seq.; MCL 339.1301 et seq.; MCL 339.2401 et seq. A common theme prevails throughout each of these articles — namely, that each article deals with a single or discrete group of identified professions. For example, article 11 deals only with barbering and does not contain language that would suggest that it applies to any other professions, such as dog grooming.
The doctrine of noscitur a sociis, i.e., that “a word or phrase is given meaning by its context or setting,” affords us assistance in interpreting § 2501(d). See Koontz v Ameritech Services Inc, 466 Mich 304, 318; 645 NW2d 34 (2002). Thus, we utilize this doctrine, and apply this theme of a “single or discrete group of identified professions” in the Occupational Code to REBA. Because there is no reason to believe that in drafting reba, the Legislature chose not to employ this “single or discrete group of identified professions” theme, we find this to be the first indication that reba applies only to the brokering of real estate.
However, our inquiry does not stop there. Next, we apply noscitur a sociis to the individual phrases of § 2501(d), as well as to the other provisions of reba because the emphasized language does not stand alone, and thus it cannot be read in a vacuum. Instead, “[i]t exists and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute . . . .” Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982). “[W]ords in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole.” Gen Motors Corp v Erves (On Rehearing), 399 Mich 241, 255; 249 NW2d 41 (1976) (opinion by Coleman, J.). Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context. McCarthy v Bronson, 500 US 136, 139; 111 S Ct 1737; 114 L Ed 2d 194 (1991); Hagen v Dep’t of Ed, 431 Mich 118, 130-131; 427 NW2d 879 (1988). “In seeking meaning, words and clauses will not be divorced from those which precede and those which follow.” People v Vasquez, 465 Mich 83, 89; 631 NW2d 711 (2001), quoting Sanchick v State Bd of Optometry, 342 Mich 555, 559; 70 NW2d 757 (1955). “It is a famil iar principle of statutory construction that words grouped in a list should be given related meaning.” Third Nat’l Bank in Nashville v Impac Ltd, Inc, 432 US 312, 322; 97 S Ct 2307; 53 L Ed 2d 368 (1977); see also Beecham v United States, 511 US 368, 371; 114 S Ct 1669; 128 L Ed 2d 383 (1994).
The emphasized language of reba’s definition of “real estate broker,” part iii(a) above, includes the phrase, one “who . . . negotiates the purchase or sale ... of a business, business opportunity, or the goodwill of an existing business for others . . . .” MCL 339.2501(d). In interpreting this language, we examine its context and must give it a meaning that is not only logically related to the type of broker specifically defined in § 2501(d), but also a meaning logically related to the other five phrases used in § 2501(d) to define a “real estate broker,” and the other provisions of reba. Vasquez, supra at 89.
Section 2501(d) defines not merely a broker, but specifically a “real estate” broker, and thus provides the first indication that the Legislature intended that reba apply only to persons brokering real estate. Further, immediately following reba’s definition of “real estate” broker, the Legislature defines “real estate” salesperson, in terms that expressly cross-reference the definition of “real estate” broker, i.e., a “real estate salesperson” is one who is employed by a “real estate broker.” The Legislature also defines five other terms in § 2501, all of which are defined by express reference to “real estate” or “real property.” The Legislature then employs six definitional phrases in § 2501(d) to give meaning to the term “real estate broker,” and each of those phrases, with the exception of the one at issue, either expressly uses or references the term “real estate.” The Legislature proceeds to employ these same definitional phrases in giving meaning to “real estate salesperson.”
Moreover, there are other textual indicators that reba applies only to “real estate.” First, the courses an applicant must complete in order to receive a license under this act, a license as a “real estate” broker, all not surprisingly concern real estate. Second, amid this focus on real estate, there is nothing within reba that suggests any legislative intent that it apply to non-“real estate” transactions. Thus, application of the “single or discrete group of identified professions” theme, along with an examination of the text of § 2501(d), as well as the text of reba’s surrounding provisions, together suggest that reba’s licensing requirement only applies to “the purchase or sale . . . of a business, business opportunity, or the goodwill of an existing business” when that purchase or sale involves a real estate transaction.
The purpose of REBA, which is to protect the integrity of real estate transactions by ensuring that they are brokered by persons expert in that realm, requires the interpretation that reba applies only to real estate transactions. The conclusion that the emphasized language of § 2501(d) applies only to real estate transactions affords reasonable meaning to this language within the context of the provisions that surround it, while maintaining the focus of reba on transactions involving the purchase or sale of business real estate.
Alarm contracts are not real estate and, thus, at least on the basis of the present record, reba is not applicable to this transaction, which apparently involved only the purchase of such contracts. However, because our interpretation of § 2501(d) has not been previously set forth, and because this case was resolved on summary disposition where the record may not have been fully developed in light of this interpretation, we remand this matter to the trial court for a determination of whether a real estate transaction was involved here.
B. “REAL ESTATE BROKER”
If, on remand, the trial court determines that defendant’s purchase of MetroCell’s contracts involved a real estate transaction, the trial court must then address a further issue: whether plaintiff is prohibited by MCL 339.2512a from seeking compensation for its services because plaintiff was not a licensed “real estate broker.” MCL 339.2501(d).
As previously stated, § 2501(d) defines a “real estate broker” as an individual or entity that “sells . . . buys ... or negotiates the purchase or sale ... of a business, business opportunity, or the goodwill of an existing business for others. . . .” MCL 339.2512a provides:
A person engaged in the business of, or acting in the capacity of, a person required to be licensed under this article, shall not maintain an action in a court of this state for the collection of compensation for the performance of an act or contract for which a license is required by this article without alleging and proving that the person was licensed under this article at the time of the performance of the act or contract.
The Court of Appeals held that “plaintiff’s activities constituted ‘negotiations [for] the purchase or sale or exchange of a business’ as contemplated by the act and that, therefore, [plaintiff] was required to procure a real estate brokers license in order to collect fees for its service.” 247 Mich App 252-253. In reaching this conclusion, the appellate court relied on Cardillo v Canusa Extrusion Engineering Inc, 145 Mich App 361; 377 NW2d 412 (1985), observing:
Here, plaintiff found business assets for defendant to purchase, conduct which falls squarely within the definition of activities performed by a “real estate broker” under the act. . . . [I]t is clear that plaintiffs conduct in attempting to locate business assets for purchase by defendant constitutes action of a “real estate broker” as defined by the statute. [247 Mich App 256-257.]
In Cardillo, the plaintiffs alleged that the defendant orally agreed to pay a fee for successfully finding a buyer for the defendant’s engineering firm. The defendant moved for summary disposition, contending that reba precluded the plaintiffs from bringing an action seeking compensation because the plaintiffs were unlicensed as real estate brokers. Cardillo, supra at 364-365. Although the plaintiffs claimed not to be brokers, the Court of Appeals opined:
In interpreting this statute, the trial court concluded that a mere finder or middleman is not included in the definition of a broker. We do not agree. . . . Sometimes, performing one of the usual functions, such as finding a purchaser, will be enough to subject a person to the broker licensing requirement.
* * *
Under this analysis [after reviewing reba], we would hold that in finding a purchaser for defendants’ assets under a commission agreement, plaintiffs were subjected to [reba]. [Id. at 368, 371 (emphasis added).]
Thus, under Cardillo, one must be a licensed real estate broker when one merely performs one of the “usual functions” of a real estate broker, including among other things “finding” a purchaser for real estate.
However, in our judgment, REBA does not require one to be a licensed real estate broker when one merely performs a “usual function” of a real estate broker, such as “finding” a purchaser. Rather, REBA expressly requires that one be a licensed real estate broker only if, for a fee, one “sells or buys” real estate or “negotiates” a real estate transaction for another. MCL 339.2501(d). Accordingly, to the extent that Cardillo holds otherwise, we believe that it reads too much into § 2501(d), and, thus, we reject its interpretation of this provision.
In rejecting Cardillo’s interpretation of § 2501(d), we instead believe that Turner Holdings, Inc v Howard Miller Clock Co, 657 F Supp 1370 (WD Mich, 1987), correctly interpreted this provision. In that case, the court held that one need not possess a real estate broker’s license for merely “identifying and advising” a client about a purchase of a business. Likewise, unless plaintiff’s actions here are covered by § 2501(d) — that is, unless plaintiff’s activities can reasonably be characterized as “sell[ing], . . . buy[ing], . . . or negotiating]” the purchase or sale of real estate for another for a fee, it is not required to possess a real estate license.
Although, in our judgment, Cardillo's interpretation of reba is incorrect, we agree with Judge White in her dissent in the instant case, and would also remand to the trial court for consideration of whether plaintiff, in fact, “negotiated” a real estate transaction with MetroCell (or its parent Rao Coiporation). There is a genuine issue of material fact relating to whether plaintiff participated in real estate negotiations. For example, defendant offered the following evidence of plaintiffs participation in real estate negotiations: (a) that plaintiffs lawyer sent defendant a letter, acknowledging that it “represented [defendant] in negotiations with Rao Coiporation for the purchase of MetroCell Security over a period of several weeks”; (b) that plaintiffs business brochure stated that plaintiff often engaged in transactions requiring it to perform “acquisition negotiations”; and (c) that plaintiff had meetings with Rao Coiporation to engage in business “discussions” of some uncertain character. However, plaintiff presented the following evidence in response: (a) that plaintiff only introduced itself to defendant as an investment banker; (b) that the alleged oral contract between plaintiff and defendant never mentioned negotiations; (c) that the purpose of plaintiffs initial meeting with Rao Corporation was merely to determine whether MetroCell was for sale; and (d) that the only evidence regarding negotiations are those that occurred between defendant and MetroCell, not between plaintiff and MetroCell. Therefore, if, on remand, the trial court determines that a real estate transaction occurred here, the trial court must then determine also whether plaintiff “negotiated” such transaction.
IV. RESPONSE TO THE DISSENT
The dissent criticizes the majority’s interpretation of § 2501(d) by asserting that we “ignore[] the clear language of the reba” and “sidestep [] the plain meaning of the words . . . .” Post at 434, 437. We respectfully, but strongly, disagree. Although we may reach a different conclusion than the dissent, we do not “ignore” the language of the statute. Rather, our conclusion that the real estate brokers act is limited to transactions involving real estate is predicated on the following analysis: (1) that § 2501(d) defines a specific type of broker, a “real estate” broker; (2) that the Legislature defines other occupations in this provision, all of which expressly cross-reference “real estate” broker; (3) that the Legislature defines five other terms in § 2501, all of which are defined by express reference to “real estate” and “real property;” (4) that five of the six definitional phrases used by the Legislature in § 2501(d) either expressly use or reference the term “real estate”; (5) that the Legislature then proceeds to employ these same definitional phrases in giving meaning to “real estate salesperson”; (6) that all the courses that a person is required by the statute to complete to become a “real estate broker” concern real estate; and (7) that other sections of reba only discuss “real estate” and “real estate brokers.” Thus, it is only on the basis of its language that we reach our conclusions concerning the meaning of reba.
Next, the dissent contends that the majority’s interpretation that reba applies only to transactions involving real estate is in error because it “ignores the historical evolution of the statute,” which evidences the legislative intent that reba “encompasses the brokerage of business opportunities that do not involve real estate transactions.” Post at 442, 446. However, because the meaning of § 2501(d) can be reasonably ascertained, in our judgment, by examining its language, including the context of this language, and therefore is not ambiguous, there is no need to resort to the legislative history of the act to assist in our interpretation. Nonetheless, to the extent that this history is examined, we believe that it is consistent with our interpretation of reba.
In 1919, the Legislature enacted the brokers license act, 1919 PA 306, which was titled, “An act to define, regulate, and license real estate brokers, real estate salesmen and business chance brokers and to provide a penalty for a violation of the provisions hereof.” Section 2 of that act defined “business chance broker” as “any person, firm, partnership association, copartnership or corporation, who for compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of a business, business opportunity, or the good will of an existing business for others as a whole or partial vocation.” On the basis of this definition, this Court found in Hague v Delong, 292 Mich 262; 290 NW 403 (1940), that a person must be a licensed real estate broker even though a transaction does not involve real estate. Subsequently, in 1943, the Legislature eliminated this separate provision concerning “business chance brokers” and expanded the definition of “real estate broker” to include the activities previously assigned to a business chance broker.
While we agree with the dissent concerning the facts of this history, we do not agree about its significance. While the dissent views the 1943 amendments as evidencing the Legislature’s intent that the broad definition of “business chance broker,” as defined in Hague, be fully retained as part of reba’s modified definition of “real estate broker,” we view this differently. Rather, the Legislature can just as easily be viewed as having transferred a phrase, originally defining a broad term (“business chance brokers”) occurring within a broad act (encompassing both “real estate” and “business chance” brokers), and reincorporated this phrase within the definition of a more narrow term (“real estate broker”) occurring within a more narrow act (encompassing only “real estate” brokers). Not only does the term itself that is being defined (here, “real estate broker,” rather than “business chance broker”) afford some textual clue about its own definition, see discussion at 442, but the different statutory contexts within which the term is located (here, a statute confined to real estate brokers, rather than one encompassing both real estate and business chance brokers) affords some textual clue about its meaning. We do not believe that a given grouping of words — in this case “business, business opportunity or good will of an existing business”— has an invariable meaning regardless of what it pur ports to be defining, regardless of the words and phrases that surround it, regardless of the organization of the statute in which it is contained, and regardless of the overall purposes of this statute.
Moreover, we believe that it is necessary to ask why the Legislature in 1943 would have undertaken this apparently substantial rewrite of reba — modifying its title, and amending the statute in accordance with this title modification by eliminating coverage for “business chance brokers,” and limiting the statute’s coverage to “real estate brokers”-if it had intended that there be no change whatsoever in the scope of the act’s coverage. By itself, the decision to alter the statute suggests some intent to effect a substantive change in the statute. Further, consider that this alteration of the statute occurred against the backdrop of a decision of this Court finding that the 1919 act was clear and encompassed transactions involving the sale of all businesses, real estate or otherwise.
For these reasons, we cannot join the dissent in concluding that the Legislature intended that “real estate broker” within reba be understood to mean “broker,” or “a broker of all things, real estate or otherwise.”
V. CONCLUSION
Reba applies only to real estate transactions. Further, under § 2501(d), one must only be a licensed real estate broker when, for a fee, one “sells or buys” real estate or “negotiates” a real estate transaction for another.
For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the trial court for a determination of whether a real estate transaction occurred here. If no such transaction occurred, the trial court must merely determine whether an oral contract existed between plaintiff and defendant and compensate plaintiff accordingly.
However, if the trial court determines that a real estate transaction occurred, then, consistently with the language of § 2501(d) and this opinion, the trial court must also determine whether plaintiffs actions constituted those of a “real estate broker” and proceed accordingly.
Corrigan, C.J., and Cavanagh, Kelly, and Taylor, JJ., concurred with Markman, J.
We deny plaintiff’s motion to file a postargument supplemental brief regarding plaintiff’s failure to submit at the time of oral argument a signed affidavit on defendant’s motion for summary disposition in the trial court. However, we do not find this issue dispositive of this case in any way.
Defendant disputes the existence of such an oral contract.
466 Mich 889 (2002).
“Property management,” “property management account,” “property management employment contract,” “employment,” and “independent contractor relationship.” MCL 339.2501(a)-(c),(f), and (g).
Section 2501(d) defines a “real estate broker” as one who, for a fee, “sells ... or buys . . . real estate”; “rents . . . real estate”; “leases . . . real estate”; or “who otherwise engages in the sale of real estate.” A 1994 amendment of reba expanded the definition of “real estate broker” to include one who “engages in property management,” defined in MCL 339.2501(a) as “the leasing or renting ... of real property . . . .”
MCL 339.2504(3). For example, these courses include: (1) real estate licensing law and related regulatory laws; (2) real property law; (3) conveyances, including contracts, deeds and leases; (4) appraisal of real property; and (5) real estate securities and syndications.
For example, MCL 339.2502 creates the board of real estate brokers; MCL 339.2504 mandates continuing education requirements of real estate brokers; MCL 339.2505 provides the licensing requirements of real estate brokers; MCL 339.2506 states the method by which a real estate salesperson’s license is issued; MCL 339.2507 mandates that a real estate salesperson’s license be returned by the real estate broker department upon termination of employment; MCL 339.2508 defines the scope of a real estate broker’s license; MCL 339.2509 provides for the issuance of associate real estate broker’s licenses; MCL 339.2510 sets forth the commissions to which a real estate salesperson is lawfully entitled; MCL 339.2512b provides that referral of prospective tenants does not constitute participation in a real estate transaction; and MCL 339.2514 states that nonresidents can become real estate brokers.
Purchase of “the premises in which [the] business is conducted” is one way to acquire “goodwill.” Black’s Law Dictionary (6th ed) (emphasis added). In our judgment, because goodwill can be acquired merely through a business’s premises, i.e., real estate, and because the surrounding text and provisions of reba relate only to real estate, we find that the “goodwill” language of § 2501(d) applies only to situations in which the purchase or sale of an existing business’s goodwill is made in conjunction with the purchase or sale of the premises in which that goodwill was acquired. We believe that such language was inserted in § 2501(d) to prohibit an unlicensed broker from contending: (1) that it can be compensated for that portion of a real estate transaction that involves non-“real estate,” including the purchase or sale of the existing business’s goodwill, or (2) that it can be compensated for the entire transaction because the purchase or sale of the business’s real estate was incidental to the purchase or sale of the existing business’s goodwill. Moreover, the meaning we accord “goodwill” as it is used in reba is not, as the dissent asserts, “patently false and taken out of context,” post at 438 n 3, because, as set forth in its dictionary definition, goodwill can be acquired, among other ways, through the “premises in which the business is conducted.”
In the present case, the Court of Appeals refused to follow Turner Holdings because “decisions of a federal district court interpreting Michigan law are not binding precedent on Michigan courts . . . [and] [w]e further decline to extend the reasoning of Turner Holdings to the present case, and reaffirm the Cardillo Court’s interpretation and application of the statute as correct.” 247 Mich App 258. Of course, we agree that federal decisions interpreting Michigan law are not binding on Michigan courts, but we do find Turner Holdings nonetheless to be persuasive.
In her dissent, Judge White stated:
Taken in the light most favorable to plaintiff, there is a genuine issue whether plaintiff seeks compensation for the performance of an act . . . for which a license is required by the statute. Plaintiff does not claim compensation for offering to buy MetroCell or for any negotiating respecting the sale. Rather, plaintiff seeks compensation for providing information concerning the nature of the industry, the approach defendant should take to strengthen its position in the industry, and the type of business it should attempt to acquire, and for targeting MetroCell as such a business. [247 Mich App 261.]
Nor have we rejected the dissent’s interpretation of the statute in order to avoid the “enforcement of a policy [that we] reject as unsound.” Post at 441. Rather, the majority has taken no position on the “soundness” of a broader or narrower reba and, instead, has rejected the dissent’s inteipretation entirely on its own merits.
Moreover, we disagree with the dissent that the interpretative doctrine of noscitur a sociis cannot “properly” be applied in the instant context because the language being defined in § 2501(d) has only a single “customary meaning.” Post at 440-441. We disagree, and we believe that the dissent’s “pig” hypothetical example makes our point. Concerning this hypothetical example, noscitur a sociis can not only be “accurately” applied, but must necessarily be applied. Contrary to the dissent’s assertion, the term “pig” does not have a single, invariable meaning. Rather, it has several separate and distinct meanings, including: (1) a swine; (2) a person who is gluttonous, greedy, or slovenly; or (3) an oblong mass of metal that has been run into a mold of sand while still molten. Random House Webster’s College Dictionary (2d ed). Further, “pig” may also be defined as: (4) a segment of a citrus fruit or an apple; (5) a device that fits within an oil or gas pipeline to clean or inspect its insides; or (6) an earthenware pitcher, jar or other vessel. New Shorter Oxford English Dictionary (4th ed). That the first of these definitions would suggest itself to a “native speaker of English as the common, most likely meaning of the term,” post at 440 n 5, is surely a correct, but an irrelevant, observation on the part of the dissent We do not accord words “default” definitions on the basis of their order of appearance in the dictionary. Rather, because the term “pig” has several different meanings, we initially apply noscitur a sociis (whether or not in an explicit fashion) to accord it one of these meanings-that which is contextually related to the language that surrounds “pig.” Such a meaning, we assume, is that which is most likely intended by the lawmaker. In the dissent’s hypothetical example, after examining the immediately surrounding terms, all of which have in common that they relate to animals, we accord “pig” its only meaning possessed in common with these other terms, i.e., “a swine.” Moreover, our analysis would not necessarily stop there. Instead, depending on the matter in controversy, noscitur a sociis might have to be further applied to determine an even narrower common characteristic between “a swine” and the other listed terms, for example, that each of these terms can be characterized as an animal that is a mammal. Similarly, we believe that the instant phrase is susceptible to different meanings, at least until noscitur a sociis refocuses our inteipretative gaze from the phrase itself to the words and phrases that surround it. | [
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Weaver, J.
After waiving his right to a jury trial, defendant was convicted in a bench trial of violating MCL 750.41 la(l), which makes it a crime to intentionally make “a false report of the commission of a crime to a member of the Michigan state police, a sheriff or deputy sheriff, a police officer of a city or village, or any other peace officer of this state knowing the report is false . . . ,” The issue presented is whether defendant may be convicted of filing a false report pursuant to this statute, where defendant provided false details concerning the crime. We hold that defendant may be convicted pursuant to the statute, and, therefore, we reverse the Court of Appeals reversal of defendant’s conviction.
FACTS
On April 14, 1998, defendant called 911 and reported that he had been carjacked. Officer Robert Sanchez responded to the call. He testified that he and his partner met defendant at South Fort and Francis streets in the city of Detroit and that defendant informed them that he had been carjacked by four unknown black males. Defendant informed Officer Sanchez that he was carjacked in the area of South Fort and Outer Drive and that the carjackers kicked him out of the car at South Fort and Francis. Defendant indicated to the officer that one of the men had put a gun to defendant’s head and two of the other men had jumped into the car with baseball bats and that he had been beaten with a baseball bat. He informed the officer that the men had stolen his wallet, a gold necklace, and a gold ring. Officer Sanchez and his partner made a report of the carjacking. Defendant’s car, a Honda Civic CRS, was found about an hour later being driven by William Bonner. After a brief chase, Mr. Bonner crashed the car into a tree and was arrested.
Officer Sanchez testified that he informed defendant that he did not believe that defendant was actually carjacked. He explained that his assessment was based on defendant’s demeanor, which he described as defensive and hostile, and the fact that defendant did not live in the area and gave no explanation for why he was in the area. Officer Sanchez also testified that he did not observe any physical injury to defendant and that defendant did not request any kind of medical attention.
Detective Sergeant Randell Schnotala testified that at the time of the incident, he was assigned to the carjacking task force working out of Detroit Police headquarters. He was assigned to investigate the reported carjacking. After speaking with Mr. Bonner, Detective Schnotala became suspicious of the truthfulness of the report filed by defendant and made several attempts to contact defendant to discuss the incident. A few days later, defendant telephoned Detective Schnotala and agreed to meet the detective at police headquarters.
Detective Schnotala testified that he immediately informed defendant that defendant was not under arrest, that defendant did not have to speak with him, and that defendant could leave at any time. Detective Schnotala explained that he had some questions and concerns about the report that had been filed. He testified that defendant then told him that the report was not true “beginning with the location.” Detective Schnotala stated that defendant informed him that defendant was a crack cocaine user and that he had given a false location because he did not want the police to know why he was in the area. Detective Schnotala testified that
[a]t that time I told him we could reduce this to writing, take care of matters, get him on his way. He could go about the business of getting his car back, but that he would be charged with filing a false police report. At this time he became very agitated with me and refused to talk any more about the incident and stormed out of my office.
Detective Schnotala explained that he informed defendant that he would be charged with filing a false police report because defendant said that the report he had filed was not true.
Defendant testified that he was in southwest Detroit on April 14, 1998, to purchase crack cocaine. He spotted the supplier from whom he had purchased crack cocaine earlier in the day and let the supplier get into defendant’s car. Defendant informed the supplier that he wanted $20 worth of crack cocaine, and they drove to a house. The supplier went into the house to get the crack cocaine. Defendant stated that when the supplier left the house, the supplier returned to the car. As the supplier was again sitting in the passenger seat showing defendant the crack cocaine, defendant heard the hatchback of his car open. Two men entered the car. Defendant testified that the supplier pulled the keys out of the ignition and that one of the men in the back pointed a gun at defendant, demanding that defendant give them everything defendant had. Defendant stated that he told them that the gunman would have to kill defendant because defendant “had a lot of gold on.”
Defendant testified that the gunman then put down the gun and began choking him from behind until he passed out and that the supplier was hitting defendant. When defendant “came to [he] was half in [his] car and half out.” Defendant further explained that when he “came to,” his jewelry, his watch, his necklace, his rings, and his wallet had been taken. He stated that he observed four men walking down the road and ran after them. He testified that the men surrounded him and began attacking him, one of them beating him with a pool cue and another hitting him in the jaw. He stated that he received a cut on his head and felt like he had broken his hand during the attack after being hit with the pool cue. Defendant testified that when he asked them to give him his keys so that he could go home, they told him to move away from his car. Two or three of the men jumped into his car and drove off.
Defendant testified that he then ran to Fort Street, entered a restaurant, and called the police. He stated that he told police that he was at the gas station and that he had just left his sister’s house when he was carjacked and made to drive to the gas station. Defendant stated that he had lied about the location because he did not want anyone to know that he was buying crack cocaine. He stated that he showed the cut to the officer and indicated that his hand felt like it might be broken. However, when the officers asked if he wanted an ambulance, he declined. Defendant acknowledged that when he spoke with Detective Schnotala, he did not give the detective any specific details or provide any written statement about what had actually occurred.
At the conclusion of the trial, the trial court found defendant guilty of the charge. The trial court stated:
This is somewhat of an interesting case in the sense that he’s charged with filing a false report of a felony.
And without going into a lot of detail as far as fact finding goes, I do believe from all the evidence and the testimony that the defendant, Mr. Chavis, was carjacked. I believe that his car was taken from him with the use of force, and that he didn’t voluntarily turn it over or surrender it.
And that’s essentially what happened.
However, in this case, because of, and I believe some of the defendant’s testimony, too. I believe his testimony about using crack. I believe his testimony about going around looking for crack and having contact with various incendiary people in terms of seeking out some crack cocaine.
And I do also believe and find that the defendant did tell, did lie to the police about how it happened, where it happened, and some other miscellaneous details.
So on the one hand I believe that the defendant did make some false statements and give some false facts [sic] about the crime itself. And I do believe that in essence the defendant was the victim of a carjacking.
And when the defendant told the police officer those false facts, he knew that they were false and deliberately made those false statements.
And for that reason, I’m going to find the defendant guilty of the charge.
I find that the elements of the offense have been made out.
Defendant appealed, and the Court of Appeals reversed the conviction. 246 Mich App 741; 635 NW2d 67 (2001). The Court of Appeals explained:
Here, the statute proscribes the intentional making of “a false report of the commission of a crime.” MCL 750.411a(l) (emphasis added). The plain language of the statute provides that those who make police reports falsely claiming that a crime has been committed are guilty of making a report of a false crime. See, e.g., People v Lay, 336 Mich 77; 57 NW2d 453 (1953) (the defendant was convicted, under the predecessor of § 411a, of making a “fictitious report of the commission of any crime” after falsely telling the police that he had put poison in a bottle of home-delivered milk). To construe the statute to encompass false information concerning the details of an actual crime would be a significant departure from the plain language of the statute. Because the false information reported by defendant in the present case did not pertain to whether a crime occurred, the conviction for filing a false report of the commission of a crime cannot be sustained. Accordingly, we reverse defendant’s conviction and sentence.
[246 Mich App 743-744.]
On April 30, 2002, this Court granted the prosecutor’s application for leave to appeal. 466 Mich 860 (2002).
STANDARD OF REVIEW
This case concerns an issue of statutory interpretation. Issues of statutory interpretation are reviewed de novo. People v Thousand, 465 Mich 149, 156; 631 NW2d 694 (2001).
ANALYSIS
MCL 750.41 la(l) provides:
Except as provided in subsection (2), a person who intentionally makes a false report of the commission of a crime to a member of the Michigan state police, a sheriff or deputy sheriff, a police officer of a city or village, or any other peace officer of this state knowing the report is false is guilty of a crime as follows:
(a) If the report is a false report of a misdemeanor, the person is guilty of a misdemeanor punishable by imprison ment for not more than 93 days or a fine of not more than $100.00, or both.
(b) If the report is a false report of a felony, the person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both. [Emphasis added.]
When interpreting a statute, our goal is to ascertain and give effect to the intent of the Legislature. People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002). We begin by reviewing the plain language of the statute. If the language is clear and unambiguous, no further construction is necessary, and the statute is enforced as written. Id.; Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001).
The issue in the present case centers on whether lying about details concerning a crime constitutes “a false report of the commission of a crime . . . .” MCL 750.41la(l). The Court of Appeals and the dissent construed this language to mean that only “those who make police reports falsely claiming that a crime has been committed are guilty of making a report of a false crime.” 246 Mich App 743. We disagree with this interpretation and find it inconsistent with the plain language of the statute.
As placed in the statute, the word “false” modifies the word “report,” not the word “crime,” as the Court of Appeals and the dissent’s interpretations suggest. The word “false” is defined as
1. Not trae or correct; erroneous; wrong: a false statement.
2. Uttering or declaring what is untrue; lying: a false wit ness. 3. Not faithful or loyal; treacherous; hypocritical: a false friend. 4. Tending to deceive or mislead; deceptive: a false impression. 5. Not genuine; counterfeit.... [Random House Webster’s College Dictionary (1997).]
The word “report” is defined as “1. A detailed account of an event, situation, etc. usu. based on observation or inquiry. 2. A statement or announcement. . . .” Id. It is not disputed that defendant made untrue and misleading statements when he provided his original account of events to the officers. First, defendant clearly acknowledged that he had lied about where the carjacking occurred and what he was doing at the time the carjacking occurred. Second, he informed police that he did not know any of the perpetrators when, in fact, he knew one of them from his previous purchase of crack cocaine. Third, although defendant stated that he had been beaten with a pool cue or baseball bat, resulting in a cut to his head and an injuiy to his hand, the officer stated that he observed no physical injuries on defendant and that defendant did not request any medical attention. Thus, in describing what had occurred, defendant made a false report.
Our inquiry does not end there, however. Following the phrase “false report” in the statute are the words “of the commission of a crime.” Defendant’s false report must be “of the commission of a crime.” “Commission” is defined as “the act of committing or perpetrating a crime . . . .” Id. Replacing the word “com mission” with its definition, the statute prohibits making a false report of “the act of committing or perpetrating” a crime. One who provides false details about the crime has made a false report of “the act of committing or perpetrating” a crime. Thus, the plain language of the statute is not limited to only those situations where no crime has been committed,-, it also applies where one reports false details about the crime. Because defendant reported false details about the crime, he can be convicted under the statute.
For these reasons, we reverse the judgment of the Court of Appeals and reinstate defendant’s conviction.
Corrigan, C.J., and Cavanagh, Taylor, Young, and Markman, JJ., concurred with Weaver, J.
Defendant was sentenced to thirty days in jail and the remainder of one year on probation.
On cross-examination, defendant stated that he did not drive the supplier to the house — they were already there.
Defendant denied that he had stated that one of the men had a baseball bat.
Our research has unveiled no Michigan cases where a defendant was convicted of the crime of making a false report of the commission of a crime for lying about details other than whether a crime had actually been committed. Our research of federal and foreign states’ case law has not unveiled any cases where a defendant was convicted of this type of crime for lying about details other than whether a crime had actually been committed. See, e.g., Smith v Arkansas, 1999 WL 200671 [unpublished opinion] (Ark App, 1999) (false report that husband broke into home); People v Trimble, 181 Ill App 3d 355; 537 NE2d 363 (1989) (defendant falsely told police his car was stolen); State v Matilla, 339 NW2d 54, 55 (Minn, 1983) (defendant falsely reported being burglarized); State v Kachanis, 119 RI 439, 440; 379 A2d 915 (1977) (defendant falsely reported his car stolen).
The trial court’s finding that a carjacking actually occurred is unchallenged on appeal.
Defendant admitted to the police officer that he had lied. Accordingly, there is no dispute about whether defendant’s statements were made intentionally and lmowingly.
While the false statements in the present case occurred in defendant’s initial communications with the police, we note that the definition of “report” does not require that the statements always be made at the outset of an investigation. The definition could cover subsequent communications as well.
The dissent criticizes our opinion as failing to provide guidance to the bench and bar and suggests that it will inhibit victims from reporting crimes for fear they will be convicted for insignificant misstatements. We would remind the dissent that the statute requires a person to intentionally make a false report of the commission of a crime. This intent requirement should obviate many of the “problems” that the dissent asserts our opinion will create.
The dissent also criticizes our opinion as allowing the prosecutor “unfettered discretion,” post at 99, in determining when to bring charges under the statute. It is invariably the case that the prosecutor always has great discretion in deciding whether to file charges. Such executive branch power is an established part of our constitutional structure. Any apprehension that the prosecutor may abuse this power should be tempered, in part, by the knowledge that there are significant systemic protections afforded defendants, including the defendant’s right to a preliminary examination and right to a jury trial. Moreover, there are other protections against the misuse of power that spring from daily scrutiny by the media as well as from periodic elections, which call all office holders to account to their constituents.
Our interpretation and application of the statute is consistent with one of the purposes of the statute, which is to avoid distracting the police and misusing police resources. | [
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Grant, J.
(after stating the facts). The judgment is erroneous. Plaintiff’s claim is as fully set forth in his affidavit as it could have been in a declaration. Defendant treated the affidavit as a declaration, pleaded thereto, and went to trial upon the merits without objection. He waived the filing of the declaration, and submitted to the jurisdiction of .the court. It was his duty to raise objection in the justice’s court. Having failed to do this, he will not be allowed to raise it in the appellate court. As this is fatal to the judgment of the circuit court, we need not discuss the other questions raised. It was the duty of the circuit court to permit a declaration to be filed.
Judgment reversed, and case remanded for trial.
The other Justices concurred. | [
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Per Curiam.
This is an application for a writ of mandamus to require respondent to quash an indictment. In People v. Thompson, 108 Mich. 583 (66 N. W. 478), we held (following the authority of Palms v. Campau, 11 Mich. 109), that we would not, in advance of a final determination of a case, review the action of a circuit judge in refusing to quash an indictment. It was said in that case that the practice ought to be uniform, and the fact was then stated that the court had, in numerous cases not reported, adhered to the same rule. It was strenuously insisted, both on the original application and on a motion for a rehearing, that in view of exceptional circumstances, and of the great expense involved both to the accused and to the State, and of the disgrace which might follow an unauthorized conviction, an exception should be made of that case. ' These considerations were not deemed sufficient to justify a departure from settled practice. That case has since been steadily adhered to. In view of this settled practice, we must deny the motion. | [
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