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Moore, J.
The husband of Caroline E. Tunnicliff, one of the defendants, died in 1881, leaving a will, which appointed Mrs. Tunnicliff his executrix. The other defendant is an adopted son of Mr. and Mrs. Tunnicliff. By the provisions of the will, the widow was given a life estate in all of the real and personal property. The adopted son was given a legacy of $10,000. Included in the real estate was a home occupied by Mr. and Mrs. Tunnicliff. In 1881 a claim of $2,800 was allowed in favor of Mrs. Tunnicliff against her husband’s estate. A license was granted the executrix to sell the homestead to pay the debts, and it was sold by her, in December, 1881, upon the bid of Andrew J. Gould, for $3,500. The sale was confirmed by the judge of probate, and a deed was executed to Mr. Gould, who upon the next day executed and delivered to Mrs. Tunnicliff a quitclaim deed of the premises. Mr. Gould purchased the property for Mrs. Tunnicliff. Payment for it was made by Mrs. Tunnicliff crediting the estate $2,500 received for the property, and charging it with a like amount paid upon her claim against the estate. She remained in possession of the property until October, 1883, when she conveyed the property, by a deed with the usual covenants of warranty, to the complainant and her husband, who went into possession. Later, Mr. Litchfield deeded his interest in the premises to his wife, the complainant.
In 1893 a dispute arose over the line between the property and the adjacent property, when the title conveyed to Mr. and Mrs. Litchfield was questioned, upon the ground that it was unlawful for the executrix to purchase the real estate, directly or indirectly, sold by her at executrix’s sale. Both parties to the deed conceded there was some question about the title, and efforts were made for the purpose of perfecting it. Mrs. Litchfield claimed she was entitled to a title about which there could be no question, and this claim was conceded by Mrs. Tunnicliff and her adopted son. It was finally agreed between the parties that Mrs. Tunnicliff should perfect the title within one year, or, in default thereof, that she would repurchase the property from the complainant for $4,000. To secure the performance of this agreement, Bob Breck Tunnicliff, who was interested, as a legatee under the will, in having the estate settled, made a mortgage to the complainant. This mortgage was drawn by an able lawyer, and the parties all understood the purpose for which it was made. There •were a number of nonresident heirs to the property, and an effort was made to obtain deeds from them. The effort was not successful. At the end of the year, Mrs. Tunnicliff refused to repurchase the property. The complainant. instituted this proceeding to foreclose the mortgage. A decree was entered in her favor. From this decree, defendants appeal, claiming—
First. That the mortgage was given without consideration.
Second. That the sale made by the executrix was not void.
Third. That the statute of limitations has made the transaction good.
As to the last claim it may be said ejectment could not be brought by the heirs of Mr. Tunnicliff against Mrs. Tunnicliff or her grantee during her lifetime, for the reason that by the terms of the will she was given a life estate in the property.
2 How. Stat. § 6042, reads as follows:
“The executor or administrator making the sale, and the guardian of any minor heir of the deceased, shall not, directly or indirectly, purchase or he interested in the purchase of any part of the real estate so sold, and all sales made contrary to the provisions of this section shall be void.”
This statute has been before this court several times, and the cases are cited in the note to this section. The authorities are not altogether uniform in deciding whether such sales are void or only voidable. See Freem. Void Jud. Sales, § 33; McGraw v. Daly, 82 Mich. 500; Otis v. Kennedy, 107 Mich. 312. We do not deem it necessary to decide whether the title obtained by Mrs. Litchfield was void or simply voidable. The record in the office of the register of deeds showed, long before Mrs. Tunnicliff conveyed the property, that she got her title by means of a quitclaim deed from Gould, dated but a day later than his deed and the order confirming the sale to him. It might well be argued that this was notice to all subsequent purchasers that there was a question about the validity of the sale.
When the complainant obtained her title, she was assured by Mrs. Tunnicliff it was good. She paid for a good title.' At the time the mortgage was drawn, it was conceded there was a question about the title; and it was agreed that, if Mrs. Litchfield would give Mrs. Tunnicliff a year in which to perfect the title, she would do so, or take back such title as Mrs. Litchfield had, paying her $4,000 for it. This was consented to by Mrs. Litchfield, and the mortgage was drawn. The consideration was sufficient. The default in the mortgage had occurred. The decree was properly entered, and it is affirmed, with costs to complainant.
The other Justices concurred.’ | [
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] |
Grant, C. J.
This is a suit for $31, brought to recover for a bill of lumber alleged to have been sold by plaintiff to defendant. Defendant, desiring an improvement upon his house, solicited one Fisher, a carpenter, to bid. Fisher obtained the plaintiff’s assistance in estimat ing the cost, and $55 was the sum fixed as a safe bid. Defendant afterwards saw plaintiff, and asked him' if Fisher had been there to get lumber. After detailing the conversation with Fisher, plaintiff testified: “I said [to defendant] : ‘ Earl, if I furnish the lumber for you, I am not going to charge it up to Fisher; I will charge it to you.’ That was the understanding.” Defendant said he “wanted Fisher to furnish the lumber himself, so he could get his pay out of Fisher; that he owed him; and I said, ‘ I cannot furnish the lumber for Fisher to pay his old bills;’ and he said, £I think there will be enough in the job to pay me, and you for your lumber too.’” One other witness gave testimony from which it may be inferred that the credit was given by plaintiff to defendant, and that defendant so understood it.
1. It is urged that there was no evidence of an agreement or original promise on the part of defendant. We think that the evidence was sufficient to justify the submission of the question to the jury. It was debatable whether plaintiff trusted Fisher or defendant, and whether it was agreed that the credit should be given to defendant. The question was not so clear as to justify the court in disposing of the question.
2. Plaintiff was permitted to introduce in evidence his book of accounts, which he himself kept, showing the amount of lumber, and_that it was charged to defendant. This is alleged as error, under Hodges v. Power Co., 109 Mich. 54.7. If this was error, it was cured by the instruction of the court that the fact that the charge was made to the defendant was only important in case they should find it was so charged by the authority or with the assent of the defendant. Taking this in connection with the instruction that the sole question in the case was whether the agreement was “that the lumber should be charged to defendant, and that the defendant obligated himself to pay for it,” we think there was no error.
Judgment affirmed.
The other Justices concurred. | [
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] |
Hooker, J.
On November 10, 1894, Frank Lawrence-was the owner of a building in Saginaw, upon which he-had previously given a mortgage for $15,000. It was held by the complainant. Lawrence was embarrassed, pecuniarily, and on that day he obtained from defendant Corning his indorsement upon Lawrence’s note for $5,000, which Lawrence negotiated and obtained the money upon. At the same time he executed and delivered to Corning a warranty deed of the premises, which deed contained the following provision, viz.:
“The said Lawrence covenants that he is well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatever, except a mortgage to William L. Webber, executor and trustee, for $15,000; and that he will, and his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, except as against said mortgage to William L. Webber, executor and trustee as aforesaid, which said mortgage is assumed by said second party as a part of the consideration named herein.”
The consideration named in the deed was $20,000. Contemporaneously with this deed, the parties signed an agreement, duly acknowledged, referring to said deed, containing the following provisions:
“Now, it is hereby understood and agreed by and between the parties hereof that said deed is received in trust by the said Edward Corning to secure the said Edward Corning for his indorsement on a promissory note dated November 10, 1894, for $5,000, due in three months, made by Frank Lawrence, and indorsed by Edward Corning, and payable at the Second National Bank of the City of Saginaw, Michigan; and if said Frank Lawrence shall pay said note, or the renewals thereof, with the interest thereon, and also pay the principal and the interest on a $15,000 mortgage now on said property, held by William L. Webber as executor and trustee, and also keep up and pay all taxes and insurance on" said building, and save the said Edward Corning, his heirs or assigns, harmless therefrom, so that he will not be obliged to pay said matters, so that, at the end of five years from the date hereof, the said Lawrence shall not be indebted to the said Edward Corning for any amounts of money which he may be obliged to advance in payment of the said note first referred to, or said mortgage and interest to said William L. Webber, trustee, or for taxes or insurance, then said Edward Corning shall reconvey said property to said Frank Latorence, 'or to whom he may direct; and this deed is intended, and is given and accepted by both parties hereof, to further secure said Edward Corning, his heirs or assigns, for such other or further advances in money or other indorsements than herein referred to, and shall stand as a lien against said property until all such matters that Edward Corning, his heirs or assigns, holds that he has personally advanced or paid, until he has been fully paid for on such matters.”
Also, the following clause:
“In consideration of receipt of said deed above referred to, the said Edward Corning, his heirs and assigns, agrees to allow said Frank Lawrence to remain in possession of said property, to keep it for himself, or to lease the same to other parties, and collect the rents for the purpose above mentioned, and possess and handle the said property in every respect as though said deed had been in form a mortgage. ”
Also, the following clauses:
“Said Lawrence further agrees to collect all rents received from said building, and to deposit such rents in the bank, and the account to he known as ‘Frank Lawrence Special Account,’ and that no money is to be taken from said account, except in the payment of interest, taxes, insurance, and repairs on said building, or to apply on the principal of the same on the mortgage and note herein referred to.
“And said Edward Corning, his heirs or assigns, hereby agrees to provide funds for the payment of the said $15,000 mortgage held by William L. Webber, trustee, in case payment should be demanded, so that no expense, by foreclosure or otherwise, can be made to affect the interest of the said Lawrence; and said Corning hereby agrees that this agreement shall be binding upon himself for five years from the date hereof, and agrees not to incumber said property in any other manner than is herein specified, and that he will reconvey said property to said Lawrence, or to whom he may direct, by deed with covenants as to his own acts, when he has been paid all liabilities for which he may be liable as mentioned in this agreement.”
The bill in this cause was filed June 1, 1896, to foreclose the mortgage mentioned, and Corning is made a party defendant. In it the deed and agreement are set up, and the bill prays that Lawrence and Corning be decreed to pay the amount that shall be found due thereon, and that each shall be decreed to be liable to pay any deficiency arising from the sale of the premises. Lawrence filed a cross-bill, setting up the same instruments, and praying that Corning be decreed primarily liable for the amount of said mortgage, and to save him (Lawrence) harmless from a deficiency, if one should arise upon a sale of the premises; but this was stricken from the files upon motion. ■Corning answered the original bill. The circuit judge decreed foreclosure, and held that Corning was not personally liable for the debt or deficiency. The complainant has appealed.
Lawrence was the principal witness. His testimony shows that he did not deposit the sums received for rentals, or apply all of them in accordance with the terms of the agreement between him and Corning, having used upwards of $2,000 received from rentals for other purposes. It is not certain that this is all, for Lawrence admits that he did not keep an account of the receipts or disbursements; and it does not appear that he has paid the $5,000 note which Corning indorsed. The testimony shows that, before the conveyance and agreement were made, Lawrence and Corning called upon Webber, and an extension of time was obtained upon the mortgage; but the contemplated-arrangement was no part of the consideration for the ex-, "tension. Webber was not informed that such arrangement was in contemplation. Lawrence has been in possession of the premises, and Corning promptly disclaimed ownership ■and denied liability when Webber suggested that he pay the mortgage. It is plain that Corning was, at most, a mortgagee, and no one contends that he is owner of the premises. Consequently it cannot be said that the assumption of the mortgage constituted a part of the purchase price of the premises, and that Lawrence has put into his hands a fund to pay the mortgage with. The most that can be said is ■that Corning promised to advance money to pay the mortgage, upon demand, and that Lawrence gave him security by way of indemnity therefor; and the same instrument made it optional with Lawrence to make the demand, for it was conditioned upon the failure of Lawrence to pay the mortgage, among other provisions. As already stated, Lawrence failed to perform his part of the agreement, and is now seeking, through this proceeding, to-compel the defendant Corning to perform his. Were this an action at law brought by Lawrence to recover damages against Corning for his failure to advance the amount due upon the mortgage, his own breach of the contract would seem to be a sufficient answer. And, if he could not recover in such an action, a court of equity would not afford him relief in this. Hence, if this decree is to be-reversed, it must be by reason of some equity in Webber, the mortgagee.
It has already been said that there is no privity of contract between Webber and Corning, and that there is nothing in the nature of an estoppel, that renders it inequitable for Corning to refuse payment. He has received no fund that he is equitably bound to apply to such payment, and the land which he has taken a deed of (though it is a mere mortgage), if it can be called such a fund, is within the reach of Webber’s mortgage, against the foreclosure 'of which Corning makes no defense. Counsel for the respective parties have cited cases in support of their contentions, but we think it sufficient to say that it would be manifestly inequitable to give the complainant the benefit of an agreement which ought not to be enforced in favor of his mortgagor. While, under-our statute, a court of chancery has the authority to enter a decree for deficiency against one who equitably owes the-debt, through an assumption of thé mortgage debt as part of the purchase price of the premises, such action is always dependent upon an existing equity either between that person and the mortgagee, or more frequently between him and the mortgagor. Here there is no equity in favor of either. In Johnson v. Shepard, 35 Mich. 123, it was said:
“The jurisdiction over persons who have become liable on the debt is not obligatory, but is only permissive. When justice requires that the party shall have a chance to defend himself at law, or to seek redress in 'any other form against his liability, courts have refused a personal decree.”
See, also, North American Fire Ins. Co. v. Handy, 2 Sandf. Ch. 492, and Withers v. Morrell, 3 Edw. Ch. 560.
In Gage v. Jenkinson, 58 Mich. 173, the court said:
“The practice in this class of cases, of allowing a personal decree against even the mortgagor himself, comes from no original equitable jurisdiction, but springs from quite recent statutory authority; and the enforcement of collateral obligations of third persons in a foreclosure suit is a still more recent innovation, and the jurisdiction given over the latter class of persons is permissive only, and not obligatory, and will not be enforced to their prejudice, unless by their own contract or agreement they have themselves made necessary or imperative such enforcement. Johnson v. Shepard, 35 Mich. 115; McCrickett v. Wilson, 50 Mich. 513. There is no pretense in this case that the claimed liability of Jenkinson could be enforced at law.”
We are of the opinion that the learned circuit judge was clearly right in his disposition of the case, and his decree is affirmed, with costs.
The other Justices concurred. | [
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Hooker, J.
Hinds was owner of city lots in Stanton. In 1893 the city authorities built a sidewalk adjacent to these lots, and a special tax was spread therefor against the lots. The tax not being paid, they were bid in for the State, and the State title was sold in June, 1897, to Sherwood, and in September, 1897, he conveyed the property to the plaintiff. Op January 10, 1898, the auditor general issued a certificate of error canceling the deed to Sherwood, and assigning in the certificate, as ground therefor, that the land was erroneously returned delinquent, advertised for sale, and sold for taxes assessed for the year 1893, for the reason that the warrant for the collection of taxes did not include sidewalk taxes for that year. A writ of certiorari was issued to the auditor general, and the retur shows that the certificate of error was given for the reason above stated. The return also shows that it was at the same time shown to the auditor general that the record of the common council of the city of Stanton showed that, after said sidewalk was built by the city, a report was made of the cost thereof, and a resolution to assess the sum of $17.67 against these lots; but the record did not show that any action was taken upon the resolution; and that the record of the council showed further that in March, 1894, a report was made by a committee of the council of the uncollected taxes, and that, — ■
“Owing to a clerical error on the part of Supervisor Lucas in spreading said taxes on the roll, it was considered inadvisable by City Attorney Miller to force collection on the same. Your committee would recommend the correction of the assessment on P. S. Dodge’s description, which was spread at $17.67, but by the county clerk in the certificate at $27.86, and the reassessment for 1894 of the above-mentioned sidewalk tax.”
It was further made to appear that, by reason of the foregoing, the common council caused this tax to be reassessed in the year 1894, and that, being returned delinquent, the land was sold for said tax. On June 29, 1897, on application of Sherwood, this last sale was canceled, for the reason that it was made to appear that the land had been sold in 1893 for the same tax that was reassessed in 1894. On November 30, 1897, Hinds, the owner, applied to redeem from the sale of 1894, and was informed that the same had been canceled. Thereafter, on full investigation, the auditor general canceled the deed for the tax of 1893, and permitted Hinds to redeem from the tax of 1894.
The plaintiff in certiorari contends that matters are set up in the return that are not responsive to the affidavit, and that they are immaterial; that the cancellation must stand upon the alleged defective warrant, if anything; and that, as a defective warrant does not invalidate the lien of the State (Auditor General v. Sparrow, 116 Mich. 574), the action of the auditor general was erroneous.
The circuit court, by its decree, adjudged these lands to be chargeable with and subject to sale for the nonpayment of this tax. Muirhead, v. Sands, 111 Mich. 487. The auditor general, by his action, has held that they were not, and the reasons alleged to justify such action are that the tax was not ordered, and that it had been reassessed. In short, he has reversed the decree of the circuit court.
Section 98, Act No. 206, Pub. Acts 1893, allows the auditor to cancel sales upon any one of three grounds:
1. That the land was not subject to taxation at the date of the assessment of the taxes for which it was sold.
2. That the tax had been seasonably paid.'
3. That the sale was in contravention of some provision of the act.
None of these grounds are shown. The land was subject to, taxation, the tax had not been seasonably paid, and no irregularity in the sale.is shown. This order was therefore erroneous, and should be set aside. The plaintiff in certiorari should recover costs against Hinds.
Grant, O. J., concurred with Hooker, J.
Long, J.
I cannot agree with my Brother Hooker in this case. Whether or not the common council had the power to cancel the tax of 1893 need not be discussed. Such action was taken by the council that the owner of the premises, Mr. Hinds, had the right to assume that he would not be called upon to pay the tax of 1893, as it was reassessed for the year 1894. It appears by the return of the auditor general that on November 30, 1897, Mr. Hinds, the then owner of the land, applied to him for the redemption of the land under the sale for the tax of 1894. This application was made within the time when such lands were redeemable after sale, and the auditor general very properly received the amount of the tax tendered at that time, and canceled the sale for the tax of 1893, which he was empowered to do under subdivision 2, § 98, Act No. 206, Pub. Acts 1893. It is apparent that the owner of the land was led by the action of the common council to believe that by the reassessment in 1894 he would not be called upon to pay the tax within the time limited for the collection thereof under the assessment of 1893, and that a payment of it under the reassessment would be a full compliance with the statute. Feeling secure in this position, he delayed the payment until November 30, 1897, and then it was ascertained that the tax of 1893 had been returned to the auditor general, and a sale made thereunder, and his right to redeem apparently cut off. The auditor general, realizing this condition, and ascertaining that the owner had been misled by the public authorities, canceled the sale of 1893, and received the money in payment of the reassessed tax.
The proceedings in the premises must be affirmed, and writ of certiorari quashed.
Montgomery and Moore, J J., concurred with Long, J. | [
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Montgomery, J.
The petitioner was adjudged insane by the probate court of Wayne county, Judge Lillibridge, of the Wayne circuit court, sitting in place of Judge Durfee, who was’himself the petitioner. After an adjudication of insanity, the petitioner made application to appeal to the circuit court. A bond was presented to Judge Donovan, acting as probate judge, and approved, but, after consideration, Judge Donovan directed the probate register not to receive the bond, for the reason that, in his view, the order was not appealable. The petitioner has now sued out a writ of habeas corpus, and also a' writ of certiorari, and asks a review of the proceedings, claiming: First, that the proceedings resulting in the adjudication of insanity were fatally defective; and, second, that she is entitled to be enlarged, because an appeal was regularly taken, and was authorized by statute.
1. The claim is made that the court did not obtain jurisdiction, for the reason that the petition which set the court in motion was not verified. The statute (Act No. 120, Pub. Acts 1897) does not require a verification of the petition. Counsel cites, as sustaining his contention, the case of Lindsay v. Huth, 74 Mich. 712; but that casé was decided distinctly upon the ground that the statute required the notice which was in question to be verified.
2. Under the law as it existed prior to 1897, no appeal was allowed from a determination of insanity. Sparrow v. Ingham Circuit Judge, 109 Mich. 272. In 1897 the legislature, by Act No. 120, amended section 21 of the act entitled “ An act to amend, revise, and consolidate the laws organizing asylums for the insane,” etc. (3 How. Stat. § 1930a et seq.), and provided for an appeal. The question is whether such appeal is limited to cases arising under section 21, or whether it was the intention to authorize an appeal in all cases. The present proceeding is under section 23 of the act, relating to persons in indigent circumstances. Section 21 relates to all other persons alleged to be insane. The purpose of discriminating against persons in indigent circumstances should not be lightly imputed to the legislature. The grant of an appeal was, doubtless, deemed an added safeguard against the restraint of sane persons in an asylum. Certainly, the restraint of an indigent person who is wrongly adjudged insane is as unfortunate as the restraint of one in better circumstances. The language of the statute is, “In all cases or proceedings arising under this act, any person aggrieved by any order, sentence,” etc., “may appeal therefrom.” This language became a part of section 21, and section 21 was a part of the complete act. The amendment should be read as though it was a part of the original act. When so read, the language is not su'ch as to limit the appeal to cases v arising under section 21, but applies to all cases under the act. We think the appeal should have been allowed, and, as it was duly perfected, the petitioner should be discharged from custody.
The other Justices concurred. | [
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Moore, J.
The following statement of facts, taken from the brief of counsel, is justified by the record:
“In June, 1893, the City National Bank of Greenville, of which Moore was president and actual manager, ceased to do business, and was put into the hands of a receiver (Robert T. Gibbons), Moore being then indebted thereto to the amount of $98,000 and upwards. Moore was also then indebted to the complainant bank in the sum of $4,500 on five several notes, none of which, however, were then due, the earliest one to fall due maturing July 16th, and the latest October 15th. Moore, at the request of the receiver, immediately after the bank failed, promised to turn all his property over for the benefit of the bank; and, relying on that promise, the receiver refrained from taking any steps by process of law to enforce the collection of this indebtedness. After all their notes against Moore had matured, and about October 21, 1893, complainant commenced a suit at law in the Montcalm circuit court against Moore, by declaration, to recover the amount due on the notes. To this declaration the general issue was pleaded. Two months afterwards, on January 2, 1894, the complainant procured an attachment to be issued in the same suit; and on the same day lands belonging to Moore in Montcalm county, valued at $15,000, were attached, and on the next following day the lands in question in this suit were also attached in Mecosta county.
“On January 20th, Moore made his application to the circuit judge of Montcalm county to dissolve the attachment ; and an order that complainant show cause why it should not be dissolved was made on that application, and Moore also threatened to prosecute the complainant for damages for groundlessly suing out the writ of attachment. The hearing of the application to dissolve the attachment was adjourned on motion of complainant; and pending the adjournment, and about February 5, 1894, an agreement was made between the complainant and Moore that the suit should be discontinued and the attachment released; that Moore should sign and acknowledge a mortgage on the Mecosta county lands in question, and should place the same in the hands of defendant Morgan, to be delivered to Leonard, the president of the complainant bank, when - Moore and J. Milton Earle, one of the directors of complainant, should jointly direct Morgan so to deliver it. J. Milton Earle, complainant’s witness, states the agreement as follows: ‘ Mr. Moore agreed with us that in case of his being obliged to give any security to any one, or in case of any financial difficulty whereby he would be obliged to secure any one, or in case of any attachment proceedings, or of any danger, as he expressed it, he would deliver the mortgage to Mr. Leonard, or cause Mr. Morgan to deliver it. The agreement was that the mortgage should be delivered to Mr. Leonard, the president of our bank, by the direction of Mr. Moore and myself jointly. That is what I meart when I say that Mr. Moore agreed to cause it to be delivered in that way.’ Earle, who represented the complainant at that time, was then advised by Mr. McGarry, the bank’s counsel, in whose office and in whose presence this agreement was made, that the complainant bank would have to trust Moore in the matter. Whereupon a mortgage of the lands in question was prepared, and signed and acknowledged by Moore, and was put in an envelope, sealed up, and on the envelope was written:
‘ ‘ * Doctor O. F. Morgan; to,be delivered to H. J. Leonard when so directed by Le Roy Moore and J. M. Earle.
[Signed] ‘“Lb Róy Mooee.
‘“J. M. Earle.’
“This envelope was then carried by Moore, accompanied by Earle, to defendant Morgan, to whom it was handed by Moore in Earle’s presence, with verbal instruction to hold it until he should be instructed by both Moore and Earle together to deliver it to Mr. Leonard, or give it up to them when they both came after it together, but not to deliver it upon request of either one individually; and Morgan was. not informed of the contents of the envelope. Moore retained the possession of the mortgage from the time it was signed and acknowledged until it was by himself placed in Morgan’s hands; and. it has never been in the hands or under the control of the complainant, nor of any of its officers. The suit at law then' pending in the Montcalm circuit court was also discontinued, and the attachment released.
“After this, and about March 29, 1894, Moore, with his wife, executed and delivered to the defendant Potter a deed of conveyance of his property, real and personal, in trust to convert the same into money, and, after pajcment of expenses, to pay the same to the receiver of the City National Bank of Greenville on the indebtedness and liability of Moore thereto; the balance, if any remained after paying such, liability, to be returned to Moore. This deed was duly recorded in the office of the register of deeds of Mecosta county on the 2d day of April, 1894, and defendant Potter immediately took possession of the lands, and continued to hold and manage the same. Neither Gibbons, the receiver of the bank, nor the defendant Potter, had any knowledge, information, or notice of the agreement between Moore and the complainant, or of the existence of the mortgage, or of its deposit with Morgan. They knew the attachment had been released. Moore refused to join with Earle in directing Morgan to deliver the mortgage to Leonard, and refused to direct such delivery in any manner. Both Leonard and Earle have demanded it of Morgan, who has declined to deliver it because Moore has not joined in directing him to do so; and Morgan retained the envelope containing the mortgage, with the seal unbroken, until directed to open it while giving his testimony in this case.”
It is claimed Mr. Moore, at the time the arrangement was made, represented he was solvent. The president and Mr. Earle, a director, say they believed the statement. The cashier says he doubted very much his statement that he was solvent. Subsequent events showed his liabilities were largely in excess of his assets. The only defendant in interest is the City National Bank of Green-ville, then in the hands of Mr. Gibbons, a receiver. The bank and its receiver are not made parties to the proceeding. TheLill is filed for the purpose (1) of compelling the defendant Morgan to deliver the mortgage to the complainant; (2) to declare such mortgage prior in point of right and time to the deed to the defendant Potter; (3) for general relief. The circuit judge dismissed the bill.
It is claimed the City National Bank and its receiver should have been made parties, and, as they were not, the bill should be dismissed. The deed to Mr. Potter was made for the benefit of the bank. He was made a party, and the defense claimed by the bank is entered upon fully by Mr. Potter. We think there is no difficulty in taking care in this proceeding of the rights of all the parties in interest, and the bill will not be dismissed for that reason.
The contest is one between two banks, both of whom are creditors of Mr. Moore, both of whom were promised security by him. One of these creditors has obtained, through the deed to Mr. Potter, some of the promised security. The other creditor claims the transaction between it and Mr. Moore, in relation to the mortgage, resulted in giving it security, which should be treated as prior in time and right to the deed. The law is well settled in this State that a debtor may prefer one creditor to another, and may use any of his property for the purpose of paying or securing his debts, in such order as he may select, and nothing but a distinct lien upon property can prevail against such disposition. People v. Bristol, 35 Mich. 28; Hill v. Bowman, Id. 191; Jordan v. White, 38 Mich. 253; Brigham v. Fawcett, 42 Mich. 542; State Bank of Fenton v. Whittle, 48 Mich. 1; Howard v. Rynearson, 50 Mich. 307; Sheldon v. Mann, 85 Mich. 265; Strauss v. Parshall, 91 Mich. 475; Ball v. Phenicie, 94 Mich. 355.
Even if the mortgage which was left with Mr. Morgan was a present security, as contended by complainant, it was not put upon record so that other creditors had constructive notice of it. All the witnesses sworn who had any knowledge upon the subject testify that Mr. Potter, the trustee, and Mr. Gibbons, the receiver, had no notice of the giving of the mortgage when the deed to Mr. Potter was made and he entered into possession of the property. The mortgage was never delivered to the Belding Savings Bank, or to any one for it. Giving the most favorable construction possible to the language used bj>- the parties, the mortgage was, to be delivered when a contingency, which might or might not occur, had occurred. Whether the event had happened or not was left for Mr. Earle and Mr. Moore jointly to decide. It was agreed by both parties that their joint assent was essential before the mortgage should be delivered to the bank, and a like assent was required before it could be returned to Mr. Moore. This joint action was never had. One of the necessary essentials to the validity of a deed so as to pass title is delivery; not necessarily to the grantee, but it must be surrendered to the grantee or to some third person for the grantee. If the delivery to the third person is unconditional, it would be a good delivery when accepted by the grantee. The grantor must intend there should be a delivery of the deed, to make it effective. Thatcher v. St. Andrew’s Church, 37 Mich. 264; Stevens v. Castel, 63 Mich. 111; Schuffert v. Grote, 88 Mich. 650 (26 Am. St. Rep. 316); Chick v. Sisson, 95 Mich. 112; Burk v. Sproat, 96 Mich. 104. The parties mutually agreed the assent of Mr. Moore should be obtained before the mortgage should be delivered.
The decree is affirmed, with costs.
The other Justices concurred. | [
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Levin, J.
The principal issue presented by these consolidated appeals concerns the elements of the statutory offense of inciting, inducing, or exhorting another person to commit murder.
I
Section 157b of the Penal Code provides that a person who "incites, induces or exhorts” another person to commit certain enumerated offenses, including murder, "shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted.” In each of the instant consolidated cases, the defendant was charged with violating § 157b under circumstances where the contemplated murder was not committed or attempted and thus the contemplated victim was not injured.
A
Vicki Rehkopf was charged with inciting, inducing, or exhorting an undercover police officer to murder her husband, Robert Rehkopf. Before trial, Rehkopf moved to quash, arguing that since an undercover police officer would not commit murder, a necessary element of the offense — that the intended result be likely to occur — was absent. The circuit judge denied the motion and the Court of Appeals denied leave to appeal.
B
John Frederick Snyder was charged with conspiracy to commit murder and with inciting, inducing, or exhorting another person to murder his brother, Arnold Snyder. The conspiracy count was dismissed following the preliminary examination. A jury found Snyder guilty of violating § 157b.
Before sentencing, Snyder moved that the sentence imposed be consistent with his assertion that § 157b of the Penal Code does not require a mandatory life sentence on conviction of inciting, inducing, or exhorting another person to commit murder, or, if it does, that such a mandatory life sentence would constitute cruel or unusual punishment and a denial of equal protection. The circuit judge granted the motion and sentenced Snyder to fifteen to thirty years in prison. The prosecutor filed an application for leave to appeal, and the Court of Appeals peremptorily reversed and remanded for resentencing to mandatory life imprisonment.
II
The legislative history of § 157b of the Penal Code, the circumstances that led to its enactment, and the punishment for solicitation prescribed in other jurisdictions suggest that § 157b is a special kind of accomplice statute designed to enlarge the scope of accomplice liability in certain limited situations, and not a codification of the common-law offense of solicitation enlarging the punish ment when certain dangerous felonies and misdemeanors are involved.
We hold that § 157b does not subject a person to criminal responsibility for utterances that do not result in the commission of the offense sought to be committed. A person who does no more than utter words seeking the commission of an offense is subject to liability only for the common-law offense of solicitation.
A
Section 157b is ambiguous. It appears from dictionary definitions of the words "incite,” "induce,” and "exhort” that "exhort,” and sometimes "incite,” means "to urge,” while "induce,” and sometimes "incite,” refers to an utterance that actually moves the listener to act.
Taken as a whole, the phrase "incites, induces or exhorts” might — emphasizing the word "exhorts” — be read to mean "to urge,” without regard to whether the listener was persuaded or, following persuasion, acted. Such a construction would, however, deny a separate literal or dictionary meaning to "induces” and perhaps make "incites” superfluous. Alternatively, the phrase might — emphasizing the word "induces” — be read to mean "to move to action,” thereby requiring some causal nexus between the words uttered and their intended effect. This construction would, however, deny a separate literal or dictionary meaning to "exhorts” and, again, perhaps make "incites” superfluous.
Thus the maxim of statutory construction that every word is to be given effect* **** is not here determinative, for the maxim cuts both ways. To require a cause and effect relationship — thereby giving meaning to "induces” and "incites” — would tend to deny literal or dictionary meaning to "exhorts.” Nor will it do simply to say that "incites, induces or exhorts” is a disjunctive phrase and must therefore be read at the very least to proscribe the utterance of words urging (exhorting) the commission of one or more of the enumerated offenses without regard to whether the listener was persuaded or, following persuasion, acted. Such a construction of § 157b would deny a literal or dictionary meáning to "induces” and to those separate meanings of "incites” that contemplate action on the part of the listener.
Because there is no linguistic reading of "incites, induces or exhorts” that gives a literal or dictionary meaning to all three words, the phrase "incites, induces or exhorts” is ambiguous. Confronted with ambiguous language, courts generally seek to determine the construction that appears most likely to be in accord with the legislative purpose in light of all the circumstances. Indications of legislative intent or purpose are of primary concern. Ambiguity in penal statutes, moreover, requires application of the rule of lenity.
B
Criminal responsibility as a common-law accessory before the fact — now treated as a principal — required that the crime instigated "have an element of particularity.” Thus, general urgings to crime might subject the speaker to liability for solicitation but might fail to demonstrate a sufficient nexus to establish complicity in offenses actually committed.
The 1967 civil disturbance in Detroit brought to light the fact that the Penal Code did not provide an adequate means of punishing general urgings to commit life-endangering offenses. Section 157b was added to the Penal Code in the wake of the civil disturbance so that a person who "incite[d], induce[d] or exhort[ed]” other persons to actually commit a life-endangering offense would be subject to the same maximum penalty as the person who committed the offense without regard to whether there was any further nexus or concert of action between the speaker and the listener/actor. Section 157b thus filled a gap in the scope of accomplice liability.
While, without regard to § 157b, accomplice liability might attach at common law to a speaker whose specific urgings caused the commission of an offense, the inclusion in § 157b of the word "exhorts” might indicate that such a specific causal relationship would no longer be required. After the enactment of § 157b, a general urging to a crowd or gathering that in fact resulted in the commission of one or more of the enumerated offenses would subject the speaker to criminal liability as an accomplice.
C
The construction of § 157b as a special kind of accomplice statute derives further support from its legislative history. The same day that § 157b was enacted, the Legislature made it unlawful for a person "intending to cause or to aid or abet the institution or maintenance of a riot, to do an act or engage in conduct that urges other persons to commit acts of unlawful force or violence, or the unlawful burning or destroying of property” (emphasis supplied). The maximum penalty was fixed at ten years imprisonment and a $.10,000 fine.
While § 157b applies to conduct that "incites, induces or exhorts,” the riot provision applies to conduct that "urges.” Reading § 157b as applying to conduct that merely urges commission of a dangerous offense, without requiring that the offense actually be committed or attempted, ascribes to the Legislature the intent to punish solicitation — "urg[ings],” that is "exhortations]”— of violent or dangerous felonies with intent to incite a riot by a lesser penalty than solicitation to commit those same felonies without the added danger of a riot.
D
After the third reading of the Senate bill that eventually became § 157b, a substitute bill was offered on the floor of the Senate; it was not seconded and thus was rejected. The dissenting opinion says that the Senate’s rejection of this proposed substitute "is just as consistent — if not more consistent — with an intent to focus on solicitation liability as their rejection of the House proposal [see part II E] is consistent with an intent to focus on accomplice liability” (emphasis in original).
The proposed substitute was addressed to accomplice liability: it defined certain conduct — includ ing solicitation of another person to commit an offense with intent to promote or facilitate the commission of such offense — that would subject a person to criminal responsibility for "behavior of another constituting a criminal offense” (emphasis supplied). The proposed substitute provided that the sentencing provisions applicable to the principal actor would be equally applicable to the accomplice, but also set up an affirmative defense of withdrawal.
The rejection of the proposed substitute is not inconsistent with the view that the Senate, in approving the bill that became § 157b, was concerned with the scope of accomplice liability, particularly in the context of general urgings to crime in a civil disturbance or riot situation. The proposed substitute apparently was addressed to accomplice liability in general and, insofar as it provided that those guilty of complicity through soliciting or aiding or abetting "behavior of another constituting a criminal offense” would be subject to the same sentencing provisions as the principal, was consistent with the accomplice provision in the Code of Criminal Procedure. The original bill that became § 157b as amended, however, also provided — consistent with the traditional punishment for conviction of complicity in a criminal offense — that an offender would be subject to a maximum penalty equal to that for the offense incited, induced, or exhorted. It therefore appears that the rejection on the Senate floor of the proposed substitute does not negate the Senate’s apparent intention to deal with a specific aspect of accomplice liability. In all events, the rejection of the substitute in favor of the original bill as amended does not affirmatively indicate an inten tion to enact legislation enlarging the penalties for common-law solicitation.
E
A proposed House substitute to the Senate bill that became § 157b clearly was addressed to solicitations. The proposed substitute proscribed any "command or solicitation” with intent to cause another to engage in criminal conduct where there is a clear and present danger that such crime would be committed. Punishment was graded according to the maximum penalty prescribed for the solicited offense: solicitation of first-degree murder was punishable by twenty years imprisonment; solicitation of offenses punishable by five years to life imprisonment was punishable by five years imprisonment; solicitation of other offenses was punishable by two years imprisonment.
The Senate did not agree to the proposed House substitute. The conference committee recommended passage of the Senate version. In contrast to the House substitute, the Senate version provided for greater penalties and contained the "incites, induces or exhorts” language rather than the House’s "commands or solicits.”
The rejection of the House proposal in favor of the "incites, induces or exhorts” language and comparatively severe penalties of § 157b indicates that the Legislature was concerned not with mere solicitation but, rather, with the scope of accomplice liability where such offenses were actually completed or attempted.
F
If § 157b were construed to apply to urgings to commit life-endangering offenses that are not in fact committed or attempted, such conduct would be subject to far greater punishment in Michigan than in almost every other jurisdiction. Of those states that have adopted solicitation statutes, many follow the Model Penal Code, which reduces the degree of the offense for solicitation to commit a first-degree felony and provides for a maximum penalty of ten years imprisonment; similarly, most other solicitation statutes authorize penalties no greater than ten years imprisonment. Apparently only two states authorize life imprisonment on conviction of solicitation. The disparity between the punishment that would be permitted by construing § 157b as a solicitation statute and the penalties authorized for conviction of solicitation in most other jurisdictions further suggests that § 157b was aimed at conduct more egregious than solicitation.
G
As a general proposition, conviction of a criminal attempt is punishable by a lesser maximum penalty than conviction for a "completed” offense. Solicitation, in this and other states, generally has been regarded as a less serious offense than attempt. Yet, the construction of § 157b adopted by the dissenting opinion might permit a person who solicits the commission of an offense to be punished more severely than the person who acted on the solicitation. If, for example, a person urged to commit an offense is persuaded to do so but fails in his attempt to complete the offense, he might properly be convicted of and sentenced for a criminal attempt, but the speaker — on conviction for a violation of § 157b — might be sentenced as if he had committed the "completed” offense.
The dissenting opinion’s construction of § 157b might further permit a person who solicits the commission of an offense, but whose solicitation is immediately rejected, to be punished as severely as one guilty of conspiracy. It has been said, however, that every solicitation is an attempted conspiracy, and, under the general grading of punishments, would be expected to carry a lesser maximum penalty than a "completed” conspiracy.
In short, the dissenting opinion’s construction of § 157b creates a drastic exception to the traditionally accepted view that merely soliciting a person to commit an offense that is not actually committed should be punished less severely than a completed or attempted offense or an agreement constituting a conspiracy.
One might argue, of course, that the Legislature actually intended to subject a person who solicits the commission of a crime that is not committed to the same penalty as may be imposed on a person who actually commits the crime, accomplices, and conspirators. The legislative history, however, tends to the opposite conclusion, and given the ambiguity in the statute, the rule of lenity requires that § 157b be construed to apply to incitements, inducements, or exhortations that in fact result in the commission of life-endangering offenses.
H
In the cases before the Court, the conduct charged as a violation of § 157b did not in fact result in the commission or attempted commission of the urged offense. Under the construction of § 157b that we believe to be correct, neither defendant could properly be convicted of violating that section of the Penal Code.
Ill
Several additional issues are presented in Snyder , The construction of § 157b that we believe to be correct, however, makes it unnecessary for the Court to express an opinion on these additional issues.
In Rehkopf, we reverse the circuit court’s denial of the defendant’s motion to quash.
In Snyder, we vacate the Court of Appeals peremptory order increasing the defendant’s sentence, and we reverse the defendant’s conviction.
Ryan, Brickley, Cavanagh, and Riley, JJ., concurred with Levin, J.
Boyle, J.
We granted leave in these two cases to decide issues left unresolved in People v Shafou, 416 Mich 113; 330 NW2d 647 (1982), and People v Formicola, 407 Mich 293; 284 NW2d 334 (1979):
(1) Whether the crime of inciting, inducing, or exhorting another to commit a dangerous felony includes as a necessary element the requirement that the inciting, inducing, or exhorting have occurred under circumstances such that it was likely that same would produce the result incited, induced, or exhorted;
(2) Whether the Legislature intended the crime of incitement to commit first-degree murder, MCL 750.157b; MSA 28.354(2), to be punishable by mandatory life imprisonment;
(3) Whether a punishment of mandatory life imprisonment for inciting to murder constitutes cruel and unusual punishment or a denial of equal protection of the laws; and
(4) Whether the Court of Appeals can properly entertain a prosecutor’s appeal challenging the trial judge’s ruling that a statute constitutes cruel and unusual punishment.
We would hold that the crime of inciting, inducing, or exhorting the commission of an offense proscribed by MCL 750.157b; MSA 28.354(2) does not require proof of either actual incitement or of an overt act by a third party. We-would further hold that life or any term of years is the prescribed penalty for incitement to commit "murder,” and that such penalty is neither cruel and unusual nor a denial of equal protection. Finally, we would hold that the prosecutor may properly appeal the trial court’s refusal to sentence in accordance with statutory requirements.
We therefore would, affirm the denial by the trial court of the motion to quash the information in Rehkopf, and would reverse the judgment of the Court of Appeals remanding the case for resen-tencing in Snyder. We would remand for trial in Rehkopf, and would affirm the judgment of the trial court in Snyder.
I
People v Rehkopf
Defendant Vicki Rehkopf was charged with "inciting, inducing or exhorting” an undercover policeman to murder her husband, Robert Rehkopf, in violation of MCL 750.157b; MSA 28.354(2). Defendant moved to quash the information on the ground that the participation of an undercover policeman posing as a "hit-man” eliminated any likelihood that the solicited murder would occur. Kent Circuit Court Judge Robert A. Benson denied the motion, finding that the "factual impossibility” of the contemplated murder was irrelevant to defendant’s liability under the incitement provision. The Court of Appeals denied leave to appeal.
We granted leave to appeal, limited to the following question:
whether the crime of inciting, inducing, or exhorting another to commit a dangerous felony includes as a necessary element the requirement that the inciting, inducing, or exhorting have occurred under circumstances that would be likely to produce the result incited, induced, or exhorted. [417 Mich 1040 (1983).]
People v Snyder
Defendant John Frederick Snyder was charged with and convicted of inciting, inducing, or exhorting the first-degree murder of his brother, Arnold Snyder, whose murder never occurred because the solicited party apparently "didn’t have enough guts” to follow through with it. Before sentencing, defendant moved for a declaration that MCL 750.157b; MSA 28.354(2) did not require a mandatory life sentence for incitement to commit first-degree murder, or, if it did, that such a sentence is unconstitutional as a cruel and unusual punishment and a denial of equal protection.
Finding that a mandatory life- sentence under these circumstances, where the intended victim has been neither injured nor killed, would constitute cruel and unusual punishment, Judge Benson instead gave defendant a reduced sentence of fifteen to thirty years in prison. On appeal by the prosecutor, the Court of Appeals peremptorily reversed, setting aside the fifteen- to thirty-year sentence and remanding for resentencing to mandatory life imprisonment.
We granted defendant’s application for leave to appeal, limited to the following three questions:
(1) whether the Court of Appeals could properly entertain a prosecutor’s appeal in this case,
(2) whether the Legislature intended the crime of incitement to commit first-degree murder, MCL 750.157b; MSA 28.354(2), to be punishable by mandatory life imprisonment, and
(3) whether a punishment of mandatory life imprisonment for inciting to murder constitutes cruel and unusual punishment or a denial of equal protection of the laws. [417 Mich 1039 (1983).]
II. Definition of the Offense
MCL 750.157b; MSA 28.354(2) provides:
Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense incited, induced or exhorted.
We would hold that the only conduct required to be proved on the part of a person charged under this provision is the inciting, inducing, or exhorting of a third party to commit one of the listed offenses.
This Court previously addressed the meaning of that requirement in People v Shafou, 416 Mich 113; 330 NW2d 647 (1982), a decision that produced three opinions offering three varying approaches.
Chief Justice Fitzgerald, with Justices Williams and Coleman concurring, limited the crime to the mere inciting, inducing, or exhorting of another to commit a referenced offense, and failed to find any legislative intent "that conviction of a crime under this statute would depend on the incidental result of a third party’s conduct, that is, an overt act or proof of actual incitement.” 416 Mich 122. Since it is therefore the use of words soliciting the commission of an offense that is proscribed, Justice Fitzgerald concluded that the crime was complete at the point where the defendant contacted the third party to induce commission of an offense.
Justice Levin, with Justice Ryan concurring, interpreted the statute as reaching only accomplice liability, therefore requiring proof that the solicited offense actually have occurred before a defendant could be convicted of inciting the commission of that offense under this provision. Justice Levin relied on a series of arguments in reaching this conclusion. First, the words "induce” and "incite,” more so than "exhort,” denote the actual bringing about of the desired result, thus injecting the statutory language with ambiguity and justifying a determination of legislative intent. 416 Mich 126-128. Second, the "enormous potential disparity” between penalties provided under this provision and those provided at common law in Michigan and elsewhere for similar conduct "strongly suggests that the rule of lenity should be invoked and that § 157b should not be construed to be a solicitation statute.” 416 Mich 129. Third, the provision was enacted in the wake of the 1967 Detroit riots in conjunction with another provision that specifically proscribed incitement to riot, but with a lesser penalty (maximum of ten years in prison or $10,000 fine, or both). Justice Levin surmised that MCL 750.157b; MSA 28.354(2) was therefore intended not to reach mere solicitation, already addressed in the riot provision, but rather "to fill in the gap perceived following the 1967 riots in the reach of accomplice liability.” 416 Mich 132.
Justice Levin derived further support for his thesis from the legislative history of the provision, 416 Mich 133-141, the disproportionate harshness of treating the inciter more severely than the party solicited who unsuccessfully attempts to commit the offense, 416 Mich 141-142, and the disproportionate harshness of the penalty in comparison with punishment of solicitation in other states, 416 Mich 142-145.
Justice Kavanagh opted for a middle ground between Justice Fitzgerald’s "mere solicitation” and Justice Levin’s "accomplice liability” views of the statute, finding instead that "some overt act resulting in actual incitement of the other person” suffices to establish liability. 416 Mich 149. Thus, while mere solicitation, without more, would fail to constitute a violation under this approach, "[t]he overt act which must be proved to establish this crime need not be the commission of the crime sought to be incited.” Id. Justice Kavanagh therefore required evidence that the other person was in fact incited, though not necessarily to the extent of completion of the solicited offense.
We would adopt Justice Fitzgerald’s view that the words "incite, induce or exhort” are essentially synonymous and that it is "conduct by which a person urges another to commit a specified crime with the intent that such a crime result” that is the focus of this offense. Therefore, liability need not "depend on the incidental result of a third party’s conduct, that is, an overt act or proof of actual incitement.” 416 Mich 122. We are unable to agree with Justice Levin’s view that the legislative history of § 157b suggests a "successful” urging is required before liability can be imposed. First, even assuming the word "induces” was included in the provision to encompass successful urgings, there is no need to deny the other terms used — "incites” and "exhorts” — their natural and ordinary meaning, since it is certainly within the Legislature’s prerogative to proscribe several forms of conduct in one statute. Accordingly, there is no "ambiguity” in the language used to justify a determination of legislative intent in the first place.
Second, the fact that a contemporaneous enactment proscribed "urging” to acts of violence with intent to cause a riot, punishable by a maximum of ten years imprisonment and a $10,000 fine, does not create the inference that § 157b was addressed to accomplice liability. The Legislature may just as likely have intended to place a ceiling on punishment for incitement to riot because of the nonspecific nature of the intent involved — not directed at a particular victim nor urging a particular crime — while implementing a sliding-scale of punishment for the traditional solicitation offense, geared to the severity of the specific crime incited. Thus, the gravity of incitement with the intent that a specific crime be committed is measured by the gravity of the crime incited, while the gravity of incitement with the intent to create a riot is fixed by the "intent to riot” as a ten-year offense.
Third, Justice Levin’s review of the enactment history of § 157b fails to note that, prior to adopting the bill that became the enacted version, the Senate rejected a proposed substitute bill clearly addressed to accomplice liability. 1968 Senate Journal 356. The proposed substitute provided:
Sec. 157B. A person is legally accountable for the behavior of another constituting a criminal offense if:
(A) With the intent to promote or facilitate the commission of the offense:
(1) He solicits such other person to commit the offense;
(2) He aids or abets such other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make; or
(B) Acting with knowledge that such other person was committing or had the purpose of committing the offense, he knowingly provided means or opportunity for the commission of the offense that substantially facilitated its commission.
(C) A person found guilty under this section shall be subject to the same sentencing provisions as apply to a person for whose criminal offense he is legally accountable.
The Senate’s rejection of that proposal is just as consistent — if not more consistent — with an intent to focus on solicitation liability as their rejection of the House proposal is consistent with an intent to focus on accomplice liability (as Justice Levin suggests). Indeed, the language ultimately included in § 157b is closer to the description of a traditional solicitation offense than to language — such as that used in the Senate proposal above — of accomplice liability.
Finally, the fact that a solicitation construction of § 157b would result in more severe punishment of certain solicitations in Michigan than elsewhere (except Montana) is not determinative of legislative intent. Where incitement to murder is involved, for example, a rational basis exists for severe punishment. The harm threatened by incitement to murder is of course of the greatest gravity: the death of another human being. As in the case of conspiracy it can also be said that solicitation is more dangerous than a direct attempt, because it may give rise to that cooperation among criminals which is a special hazard. Deliberate conduct designed to cause or culminate in a murder yields an indication that the actor is disposed toward such activity, not alone on this occasion but on others. Indeed, the solicitor working through his agent may manifest an approach to crime more intelligent and masterful than the hireling.
The operative language "incites, induces or exhorts” in terms permits conviction upon "mere words” spoken with the requisite intent. Thus, we would reject any requirement that the solicitation result in either actual incitement or completion of the solicited offense.
III. Penalty
We would further hold that the words "murder” and "kill” in § 157b are to be interpreted according to their natural, common-law meanings and that the penalty for incitement of those crimes is therefore that provided for their statutory equivalents. Accordingly, in the case of incitement to "murder,” the maximum penalty under this section is that provided for second-degree murder: life or any term of years.
The common law divided criminal homicide into two crimes, murder and manslaughter. See Perkins, Criminal Law (2d ed), p 34. Our prior decisions have consistently recognized that murder is not statutorily defined. See People v Dykhouse, 418 Mich 488; 345 NW2d 150 (1984); People v Aaron, 409 Mich 672, 715; 299 NW2d 304 (1980); People v Scott, 6 Mich 287, 293 (1859).
In light of the long-standing construction of the word "murder” according to its common-law meaning, we are unwilling to conclude that the Legislature intended by § 157b to punish incitement to commit first-degree murder as a separately graded offense, particularly in instances where a murder did not in fact take place. Rather, we interpret the incitement provision as prescribing the penalty for common-law murder — life or any term of years— as the penalty to be imposed for incitement to commit "murder” irrespective of degree. In so construing the provision, we frankly acknowledge that an interpretation requiring a mandatory life sentence for the ineffectual incitement of first-degree murder raises a serious question under the cruel and unusual punishment clauses of the state and federal constitutions. We further note that, had the Legislature intended that result, language such as that used in the Model Penal Code could have been used to clearly incorporate the statutory grading of "murder” into the incitement provision:
(1) Grading. Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree. [Model Penal Code § 5.05. Emphasis added.]
Section 157b, by contrast, refers to "murder” generically, without mentioning grading.
Section 157b as so construed is not inconsistent with the incitement to riot statute, which prescribes a penalty of up to ten years imprisonment or up to a $10,000 fine, or both. MCL 752.544(1); MSA 28.790(4)(1). As suggested in Part II, a greater penalty is imposed where the offense incited "may endanger or be likely to endanger the life of any person” than where the incitement merely encourages random violence or destruction of property. At the same time, we avoid a construction requiring a mandatory life sentence, resolving doubt regarding the legislative intent in favor of the rule of lenity.
While we recognize that this limiting construction of § 157b still punishes incitement to murder more severely than does almost every other state, we are unable to conclude that the penalty provision of § 157b is on its face so grossly disproportionate to the severity of the crime as to constitute cruel or unusual punishment. People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972).
Accordingly, we do not interfere with, nor pass judgment upon, the wisdom of the legislative choice to deal more harshly with persons convicted of this offense than the legislatures of other states have.
IV. Appellate Jurisdiction
Although we would conclude that the trial judge in Snyder properly sentenced the defendant under the incitement statute, we do not intend to suggest that the Court of Appeals may not entertain a challenge to the imposition of an unauthorized sentence. MCL 770.12; MSA 28.1109 as interpreted in People v Cooke, 419 Mich 420; 355 NW2d 88 (1984), does not preclude appellate review of* the trial court’s sentence under these circumstances.
In People v Cooke, decided after the submission of the instant case, a majority of this Court held that the Legislature intended by the reenactment of MCL 770.12(1); MSA 28.1109(1) (1977 PA 34) after this Court’s rulings in People v Blachura, 390 Mich 326; 212 NW2d 182 (1973), and People v Pummer, 399 Mich 326; 249 NW2d 78 (1976), to limit appeals by the prosecution to those situations explicitly set forth in the statute.
On April 28, 1982 the trial court found that the mandatory life penalty for first-degree murder as applied to defendant Snyder constituted cruel and unusual punishment, stating "such a sentence should shock the conscience of the Court.” The prosecution does not allege that the sentence thereafter imposed shocked the conscience, nor does it urge us to address the permissible scope of prosecution appeals of an excessively lenient sentence, an issue left open in People v Coles, 417 Mich 523, 551; 339 NW2d 440 (1983).
The people maintain rather that an appeal may be taken from a sentence illegal on its face, or alternatively that review is permitted by authority of the writ of superintending control. While we note that appellate sentence review does not present any double jeopardy implications, since a successful appeal of the sentence would not subject the defendant to a second trial, but only to correction of the judgment, United States v Wilson, 420 US 332, 352-353; 95 S Ct 1013; 43 L Ed 2d 232 (1975), the instant case is not within "the express provisions of § 12,” People v Cooke, supra, p 434. Accordingly, an appeal by the prosecution under § 12 is unavailable.
We conclude that review by the Court of Appeals was authorized instead by its jurisdiction to issue orders of superintending control under GCR 1963, 711.4. This Court has held that the superintending control order is an appropriate method for reviewing a claim that an inferior court has acted without authority, or has failed to act where it has a clear legal duty to do so. People v Flint Munici pal Judge, 383 Mich 429; 175 NW2d 750 (1970). Moreover, an improperly denominated pleading may be treated as a complaint for an order of superintending control in appropriate circumstances. See Falk v State Bar of Michigan, 411 Mich 63, 86; 305 NW2d 201 (1981); People v Wilkins, 121 Mich App 813, 817; 329 NW2d 500 (1982).
Since People v Cooke would not here authorize an appeal, a refusal to permit review by superintending control in a context such as the instant case would produce the anomalous result that a declaration by a district or circuit court as to the validity of legislative acts would be final:
The fact that an inferior tribunal should declare a criminal statute invalid does not thereby divest the appellate courts of jurisdiction to determine the correctness of that decision. The only possible way that these decisions can be reviewed is by an appellate proceeding initiated by the prosecutor. As such, an order of superintending control, pursuant to GCR 1963, 711, is the proper vehicle to effectuate an appellate decision. [People v Geba-rowski, 47 Mich App 379, 382; 209 NW2d 543 (1973).]
Moreover, given that an appeal is not authorized in this case, there is no other "adequate remedy” for the claimed error. GCR 1963, 711.2.
Because review of this case is clearly warranted and the Court of Appeals and this Court have jurisdiction to entertain the claim at the behest of the prosecution, we would exercise our discretionary power under GCR 865.1(7) and consider the prosecution’s claim of. appeal in Snyder as a complaint for an order of superintending control.
V. Conclusion
We would respond to the questions raised by holding that (1) the crime of incitement to commit an offense listed in MCL 750.157b; MSA 28.354(2) is complete upon the inciting, exhorting, or urging of the conduct specified and proof of actual incitement or of an overt act by a third party is not necessary; (2) incitement to commit "murder,” whether first or second degree, is punishable by life or any term of years; (3) the Court of Appeals properly entertained the prosecutor’s challenge to the trial court’s holding that MCL 750.157b; MSA 28.354(2) was unconstitutional.
In Rehkopf, we would affirm the trial court’s denial of defendant’s motion to quash. We would remand for trial.
In Snyder, we would vacate the decision of the Court of Appeals directing the trial court to sentence defendant to mandatory life imprisonment. We would affirm the judgment of the trial court.
Williams, C.J., concurred with Boyle, J.
"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted.” MCL 750.157b; MSA 28.354(2).
MCL 750.157a; MSA 28.354(1).
At common law, a person who solicited another to commit a felony (or a serious misdemeanor that would breach the peace) was guilty of a misdemeanor. King v Higgins, 2 East 3; 102 Eng Rep 269 (1801); see LaFave & Scott, Criminal Law, § 58, p 415; Perkins & Boyce, Criminal Law (3d ed), pp 648-649. (Alternative descriptions of the requisite actus reus include advised, commanded, counseled, encouraged, enticed, entreated, importuned, incited, instigated, procured, requested, and urged. See LaFave & Scott, § 58, p 419.) .
Solicitation remains a common-law offense in Michigan for which a maximum of five years imprisonment and a $10,000 fine may be imposed. MCL 750.505; MSA 28.773.
If a person solicits another to commit an offense, and if the listener acts on the solicitation, the speaker is liable as an accomplice and, as such, may be punished as if he had directly committed the offense. MCL 767.39; MSA 28.979 (see n 9 for text).
An accomplice is charged and punished as a principal. People v Wycoff, 150 Mich 449, 451; 114 NW 242 (1907); People v Smith, 271 Mich 553, 557-558, 561; 260 NW 911 (1935). As a principal, an accomplice may be found guilty of the substantive offense committed by the actor. Thus, if the listener/actor does not succeed in committing the solicited offense, the speaker is an accomplice only to an attempt. With the exception of attempted murder, MCL 750.91; MSA 28.286, conviction of a criminal attempt carries a lesser maximum penalty than conviction for the completed offense. MCL 750.92; MSA 28.287. (The maximum penalty for attempted murder is less than the mandatory life sentence for first-degree murder, MCL 750.316; MSA 28.548, but is the same as the maximum penalty for second-degree murder, MCL 750.317; MSA 28.549.)
If the listener agrees to the speaker’s solicitation to commit an offense, both might be found guilty of conspiracy. MCL 750.157a; MSA 28.354(1). See People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974). If the listener does not agree to the solicitation and possesses no intention of committing or attempting to commit the solicited offense, the speaker might, nonetheless, properly be found guilty of the common-law offense of solicitation. See LaFave & Scott, § 58, p 414; Perkins & Boyce, p 649.
While accomplice liability requires proof that the principal actor is guilty of the completed criminal offense, see People v Mann, 395 Mich 472, 478; 236 NW2d 509 (1975); People v DeBolt, 269 Mich 39, 45; 256 NW 615 (1934); LaFave & Scott, § 65, p 517, the offense of solicitation is complete as soon as the speaker, with intent that another person commit a felony or serious misdemeanor, solicits that person to commit the crime. Solicitation is punishable without regard to its consequences. The solicited offense need not be consummated or even attempted; nor indeed, must the listener be influenced or persuaded by the solicitation.
A more detailed consideration of the factors, summarized in this opinion, that lead to this conclusion may be found in People v Shafou, 416 Mich 113,124-145; 330 NW2d 647 (1982) (opinion of Levin, J.).
Where the utterances are made with intent to cause or to aid or abet the institution or maintenance of a riot, the offender is subject to ten years imprisonment and a $10,000 fine under a revision of the Penal Code enacted at the same time § 157b was enacted. MCL 752.542, 752.544; MSA 28.790(2), 28.790(4). See ns 13-14 and accompanying text.
See People v Shafou, supra, 416 Mich 126-127 (opinion of Levin, J.).
See People v Burns, 5 Mich 114, 117 (1858).
People, v Gilbert, 414 Mich 191, 211; 324 NW2d 834 (1982); Bell v United States, 349 US 81, 83-84; 75 S Ct 620; 99 L Ed 905 (1955).
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” MCL 767.39; MSA 28.979.
See People v Palmer, 392 Mich 370, 377-378; 220 NW2d 393 (1974).
Williams, Criminal Law: The General Part (2d ed), § 123, p 365.
See Williams, n 10 supra, § 195, p 612.
1968 PA 308.
"It is unlawful and constitutes incitement to riot for a person or persons, intending to cause or to aid or abet the institution or maintenance of a riot, to do an act or engage in conduct that urges other persons to commit acts of unlawful force or violence, or the unlawful burning or destroying of property, or the unlawful interference with a police officer, peace officer, fireman or a member of the Michigan national guard or any unit of the armed services officially assigned to riot duty in the lawful performance of his duty.” 1968 PA 302, MCL 752.542; MSA 28.790(2).
MCL 752.544; MSA 28.790(4).
It is noteworthy that if the Legislature, when it enacted § 157b, had indeed intended to proscribe conduct that merely sought commission of certain offenses without regard to the response of the listener, it might have employed the phrase "conduct that urges,” as it did in the companion riot statute. See n 13.
Post, p 211.
1968 Senate Journal 356.
MCL 767.39; MSA 28.979 (see n 9).
1968 Senate Journal 1513-15Í5.
See People v Shafou, supra, 416 Mich 142-145 (opinion of Levin, J.). As an update to the discussion in Shafou, further research indicates that Georgia (Ga Code Ann, § 16-4-7) and Kansas (Kan Stat Ann, § 21-3303) have solicitation statutes that carry maximum penalties of five and ten years imprisonment, respectively. In Maine, solicitation to commit murder is a grade A felony, which is punishable by a maximum of twenty years imprisonment. Me Rev Stat Ann, tit 17-A, §§ 153, 1252. In Oklahoma, solicitation of first-degree murder is punishable by five years to life imprisonment. Okla Stat Ann, tit 21, § 701.16. In Idaho, solicitation is punished as an attempt to commit the offense solicited and thus is punishable by one-half of the maximum penalty for the "completed” offense. Idaho Code Ann, §§ 18-306, 18-2004.
Model Penal Code, §§ 5.02, 5.05, 6.06.
Okla Stat Ann, tit 21, § 701.16 (solicitation of first-degree murder punishable by five years to life imprisonment); Mont Code Ann, § 45-4-101 (punishment may not exceed penalty for crime solicited).
See MCL 750.92; MSA 28.287.
See, e.g., McDade v People, 29 Mich 49 (1874) (solicitation to commit arson plus furnishing oil and matches held not to constitute an attempt); see also 21 Am Jur 2d, § 162, p 320.
Williams, n 10 supra, § 212, p 669; LaFave & Scott, § 58, p 417.
See n 8.
Snyder claims that the Legislature did not intend that the offense of inciting, inducing, or exhorting another to commit murder be punishable by mandatory life imprisonment, that such a sentence would constitute cruel or unusual punishment or a denial of equal protection, and that the people could not appeal- the decision of the circuit judge.
Justice Levin concluded with the observation that "[i]t would be preferable if the constructional issue were reviewed” in cases involving the solicitation of life-sentence offenses, where the "potential enormity of the penal provisions of § 157b, construed as a solicitation statute, would be more readily apparent.” 416 Mich 145. We note that, if convicted, both defendants in the instant cases will be subject to life sentences for soliciting murder, thus squarely raising the concerns expressed by Justice Levin.
Montana’s statute permits imposition of a penalty not greater than that provided for the crime solicited. See Shafou, 416 Mich 144-145 (opinion of Levin, J.).
Model Penal Code, Tentative Draft No 10, art 5 comments, p 25 (1960).
Wechsler, Jones & Korn, The treatment of inchoate crimes in the Model Penal Code of the American Law Institute: Attempt, solicitation, and conspiracy, 61 Colum L R 571, 621-622, n 4 (1961).
For similar reasons, we also reject the argument that a life sentence for incitement to commit murder effects a denial of equal protection of the law. Contrary to Snyder’s assertion, a defendant who incites one person to murder under MCL 750.157b; MSA 28.354(2) is not treated more severely than one who incites five people to murder under the riot statute, MCL 752.541 et seq.; MSA 28.790(1) et seq., simply because the latter defendant is also subject to prosecution under the incitement provision. The utter reprehensibility of the intent to murder, in conjunction with a serious request to involve another party in performing the act, answers the claim that incitement should not be treated more harshly than the "more severe” offense of attempted murder. As suggested earlier, incitement to murder is not only every bit as potentially dangerous as attempted murder, but the incitement offense indicates an added degree of purposefulness not necessarily present in the attempt context.
The federal courts have recognized a similar procedure to allow prosecutor challenges in the absence of a right of appeal. Federal prosecutor appeals are governed by 18 USC'3731, which provides in relevant part:
"§ 3731. Appeal by United States
"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more courts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
"An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.”
While the provision has been subjected to varying interpretations, a number of decisions have treated prosecutor sentencing challenges as applications for a writ of mandamus to avoid the jurisdictional problem. See United States v Ferri, 686 F2d 147, 152-154 (CA 3, 1982), cert den 459 US 1211 (1983); 15 Wright, Miller, Cooper & Elliott, Federal Practice and Procedure, § 3919; 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure, § 3936, p 263 & n 25. | [
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Per Curiam.
In People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), we held that the person who had stolen property could not be convicted of buying, receiving, or aiding in the concealment of that property under the then-effective language of MCL 750.535(1); MSA 28.803(1). The issue in the instant case is whether the 1979 amendment of that statute, which added possessing and concealing stolen property to the list of proscribed conduct, changes the Kyllonen rule. The Court of Appeals concluded that it did not, and reversed the defendant’s conviction. We disagree, and reverse the Court of Appeals judgment.
I
Defendant Hastings was charged under MCL 750.535(1); MSA 28.803(1) in connection with certain property stolen from a Jackson County home. The defendant agreed to plead guilty. At the plea proceeding, when he gave the factual basis, the defendant said that he and another person had entered the house in question and taken various items, including those which he was accused of stealing. He said that he was arrested while in the process of taking the items to a prospective purchaser. After sentencing, the defendant appealed, raising several issues.
II
At the time of People v Kyllonen, the language of the statute prohibiting "receiving and concealing” stolen property provided:
A person who buys, receives, or aids in the concealment of any stolen, embezzled, or converted money, goods, or property knowing the same to have been stolen, embezzled, or converted, if the property purchased, received, or concealed exceeds the value of $100.00, is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00, or both. If the property purchased, received, or concealed is of a value of $100.00 or less, the person is guilty of a misdemeanor. On a third or subsequent conviction under this section the person is guilty of a felony, punishable as herein provided, although the value of the property purchased, received, or concealed did not exceed $100.00. [MCL 750.535; MSA 28.803, as amended by 1974 PA 55. Emphasis added.]
In People v Kyllonen, supra, we studied the history of the statute in a case, like the instant one, in which the evidence indicated that the defendant was the one who had stolen the property. We concluded:
Although legislative intent often is elusive, the thrust of the statutory wording is clear on its face and consistent with its historical development. It is directed towards those who assist the thief or others in the disposition or concealment of stolen property. The everyday understanding of the language employed excludes the person who committed the larceny.
To interpret the words "buys,” "receives” or "aids in the concealment” of stolen property to mean buying or receiving from one’s self or aiding one’s self in concealment is needlessly to corrupt a forthright and harmonious statute. [402 Mich 145.]
After our decision in Kyllonen, the Legislature amended the statute to include those who possess or conceal stolen property knowing it to be stolen. As amended by 1979 PA 11, the statute reads:
(1) A person who buys, receives, possesses, conceals, or aids in the concealment of stolen, embezzled, or converted money, goods, or property knowing the money, goods, or property to be stolen, embezzled, or converted, if the property purchased, received, possessed, or concealed exceeds the value of $100.00, is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00, or both. If the property purchased, received, possessed, or concealed is of a value of $100.00 or less, the person is guilty of a misdemeanor. On a third or subsequent conviction under this section the person is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00, or both, although the value of the property purchased, received, possessed, or concealed does not exceed $100.00. [MCL 750.535; MSA 28.803. Emphasis added.]
Ill
The defendant’s appeal presented to the Court of Appeals the question of interpretation of the 1979 amendment. The Court divided on the question. The majority found that the amendment did not clearly signal an intention to change the rule of Kyllonen. It concluded:
We do not perceive that the addition by the Legislature of the words "possesses” and "conceals” signals an intent to broaden the scope of the statute beyond that group of offenders traditionally targeted. Such a significant change in the statutory thrust would not have been made so subtly. [People v Hastings, 136 Mich App 380, 383; 356 NW2d 645 (1984).]
Judge Gillis dissented, reasoning:
Based on the statute as worded prior to the 1979 amendment, the Supreme Court strictly construed the statute to exclude thieves who conceal property they have stolen. One year later, however, the Legislature amended the statute, thereby changing the wording relied on by the Supreme Court in Kyllonen and, in my opinion, invalidating the analysis in that case. Further, since criminal statutes are not lightly or frequently amended, we cannot ignore the proximity in time between Kyl-lonen and the amendment and assume that the Legislature meant nothing by adding the words "possesses” and "conceals.” The commentary cited in the majority opinion, 3 CJI, Ch 26 Commentary, Stolen Property, p 27, also supports this conclusion.
The statute, as presently worded, is no longer consistent with the historical development of the crime outlined in Kyllonen. The everyday understanding of the language presently employed in the statute now includes the person who committed the larceny. See Kyllonen, supra, p 145. [Hastings, supra, pp 385-386.]
The prosecutor filed a motion for rehearing. It was denied, with Judge Gillis stating that he would have granted the motion.
IV
We agree with Judge Gillis that the 1979 amendment removes the basis on which People v Kyllonen concluded that the thief could not be prosecuted under the statute. Prosecution of the thief for possessing or concealing stolen property does not torture the language of the statute, as it would have to have so read the former prohibition on buying, receiving, or aiding in the concealment of stolen property.
In addition, the legislative history of the amendment reveals that this was its purpose. The report of the House Legislative Analysis Section on SB 24, the bill which became 1979 PA 11, linked the "apparent problem” to this Court’s decision in Kyllonen:
Michigan’s concealment statute prohibits buying, selling, or aiding in the concealment of stolen property. In January of 1978, the Michigan Supreme Court held that a person who steals property cannot properly be charged under the concealment statute, because buying or receiving from one’s self, or aiding one’s self in concealment is a tortuous interpretation of the present wording of the statute (People v Kyllonen, 402 Mich 135). As a result, a person being tried on a concealment charge who confesses to stealing the property in question cannot be convicted of concealment. Prosecutors view this as a loophole. Since possession of stolen property is often easier to prove than the actual theft of the property, they believe that effective prosecution demands that they have the option of charging suspected thieves under the concealment statute. This could be done if simple possession of stolen property were made part of the concealment statute.
Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for consideration of the other issues raised by the defendant that the Court of Appeals did not reach in its earlier decision. We do not retain jurisdiction.
Williams, C.J., and Ryan, Brickley, Cavanagh, Boyle, and Riley, JJ., concurred._
Levin, J.
(separate opinion). On the merits, I agree, on the basis of the application for leave to appeal, the answer, and the briefs, with the reasoning and conclusion of the opinion of the Court.
I write separately to express my concern about the peremptory reversal of the judgment of the Court of Appeals in this case. Peremptory reversal should be reserved for those cases for which the law is settled and no factual assessment is required. If leave to appeal were granted, there would be full briefing and oral argument. Notice would be provided to counsel representing other defendants affected by today’s decision who might seek to file a brief as amicus curiae.
1979 PA 11.
The Court of Appeals did not discuss the legislative history. So far as appears from the record, it was not called to the attention of the Court until the prosecutor’s motion for rehearing.
See Schweiker v Hansen, 450 US 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error”); Leis v Flynt, 439 US 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error’; Eaton v Tulsa, 415 US 697, 707 [94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]”).
Similarly, see People v Handley, 422 Mich 859 (1985) (Levin, J., dissenting); Sewell v Clearing Machine Corp, 419 Mich 56, 65; 347 NW2d 447 (1984) (Levin, J., concurring); Keenan v Secretary of State, 422 Mich 885 (1985) (Levin, J., dissenting); Pentz v Hendershott, 422 Mich 893 (1985) (Levin, J., dissenting); see also Endicott v General Motors Corp, 422 Mich 864 (1985) (Levin, J., dissenting). | [
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Hooker, J.
The circuit court for the county of Wayne granted a mandamus to compel the respondent to issue to relator a ticket, popularly known as a “family mileage ticket,” described in Act No. 90 of the Public Acts of 1891. This act has been considered in the case of Smith v. Lake Shore & Michigan Southern R. Co., 114 Mich. 460, and held applicable to that company, which, like the respondent, was one of the railroad companies chartered by the legislature previous to the adoption of the Constitution of 1850, which reserves the power of amendment and repeal as to all corporations thereafter created. Many of the questions raised in that case are before us upon this record, but such as are covered by the decision mentioned need not be discussed here.
It is the claim of the railroad company that its original' charter constituted a contract between itself and the State, whereby it was given the right to fix the rate to be charged for the transportation of passengers, within the limit of the maximum rate therein prescribed, of three cents a mile, and to regulate the manner of collecting the same; and that these privileges cannot be revoked or altered except upon compliance with the reservation of power to be found in the charter, viz., by compensating the company therefor. The relator contends:
1. That the legislature has the general power to fix rates of transportation by railroads.
2. That it.cannot part with this authority, by contract or otherwise, so as to bind succeeding legislatures.
3. That, if such a thing were possible, the charter of the respondent should not be so construed.
4. That, even if the charter had the effect contended for, it has been surrendered, or so altered by its consent, that the respondent is subject to the provisions of the general railroad law and the Constitution of 1850.
5. That, if not lost by surrender, it is lost by virtue of Act No. 90, hereinbefore mentioned, which must be treated as an amendment under the charter, taking away the right to fix tolls, but subject to the right of .the company to recover damages from the State in a proper proceeding.
Eelator’s first proposition, viz., that the legislature has power to fix rates, within certain limits, is not an open question. It has been so held in the cases of Wellman v. Railway Co., 83 Mich. 592, and Smiths. Railway Co., 114 Mich. 460, where the authorities are cited.
To the assertion that the right to regulate tolls belongs to the police power, and cannot be bartered away, we reply that the almost uniform current of judicial authority is to the effect that such power may be given to corporations, and that, where the intent to do so is clear, a subsequent attempt by the legislature to fix tolls is the violation of a contract, under the provisions of the Federal Constitution. We will allude to some of the cases which the industry of counsel has collected. In the case of New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, it appeared that the legislature had, in 1875, granted to the gas company the exclusive right for 50 years to supply gas to the city of New Orleans through pipes laid in the public streets. Subsequently, by a new constitution, adopted in 1879, it was provided that the “monopoly features ” in the charters of all existing corporations save railroads should be abolished, and in 1881 the light company was authorized to use the streets of New Orleans for the purpose of supplying gas to the public. A bill filed to restrain this project was dismissed by the local court, and the United States Supreme Court reversed the decree. The unanimous opinion of the court, delivered through Mr. Justice Harlan, recognized the right of the State, in the exercise of the police power, to carry on the business of furnishing gas itself, or select one of several agents to do so, but held that “the police power, according to its largest definition, is restricted in its exercise by the National Constitution; ” that ‘ ‘ this is shown by those cases in which grants of exclusive privileges respecting public highways and bridges over navigable streams have been sustained as contracts, the obligations of which are fully protected against impairment by State enactments.” As supporting the proposition, the distinguished jurist cited Bridge Proprietors v. Hoboken Co., 1 Wall. 116; The Binghamton Bridge, 3 Wall. 51; West River Bridge Co. v. Dix, 6 How. 507, 531. He approved the language of Chief Justice Martin in Pontchartrain R. Co. v. Orleans Nav. Co., 15 La. 404, 413, where he says:
‘ ‘ In the same manner as Congress may reward the discoverer of a new invention or mode of constructing roads by an exclusive privilege, the legislature may reward ■those who employ their capital and industry in doubtful enterprises for the construction of a railway between two points, which may be of great utility to the public, though the success of the enterprise may be precarious.”
Allusion was also made to cases in which it is held that an exemption from taxation for a valuable consideration, at the time advanced, constitutes a contract within the meaning of the Constitution.
In the case of Bridge Proprietors v. Hoboken Co., supra, Mr. Justice Miller, in discussing a grant of an ex-' elusive right to erect and maintain a bridge, said that:
“Without this, they would not have invested their money in building the bridges, which were then much needed, and which could not have been built without some such security for a permanent and sufficient return for the capital so expended. On the faith of this enactment they invested the money necessary to erect the bridges. These acts and promises on the one side and the other are wanting in no element necessary to constitute a contract.”
The case of Binghamton Bridge, supra, involved the question whether a charter to a company, authorizing it to build and maintain a bridge for the accommodation of the public, for which it was given the right to take certain tolls, and providing that it should be unlawful for any one to build a bridge within two miles, constituted a contract within the meaning of the Constitution. The question arose by reason of the erection of another bridge. It was held to be a contract, in the following vigorous language of Mr. Justice Davis:
_ “If anything is settled by an unbroken chain of decisions in the Federal and State courts, it is that an act of incorporation is a contract between the State and the stockholders. * * * A departure from it now would involve dangers to society that cannot be foreseen, would shock the sense of justice of the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the government. * * * The purposes to be attained are generally beyond the ability of individual enterprise, and can only be accomplished through the aid of asso ciated wealth. This will not be risked, unless privileges are given and securities furnished, in an act of incorporation. The wants of the public are often so imperative that a duty is imposed on the government to provide for them; and, as experience has proved that a State should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unwilling to undertake. The legislature, therefore, says-to public-spirited citizens: ‘If you will embark, with your time, money, and skill, in an enterprise which will accommodate the public necessities, we will grant to you for a limited period, or in perpetuity, privileges that will justify the expenditure of your money, and the employment of your time and skill. ’ Such a grant is a contract* with mutual considerations; and justice and good policy alike require that the protection of the law should be assured to it.”
Recurring to the case of New Orleans Gas Co. v. Louisiana Light Co., supra, where the foregoing authorities are commented upon, we find a distinction clearly drawn between cases where the grants have been claimed to confer privileges injurious to public morals or public health, and those where they compensated persons for performing a public service; and the case elaborates still further the proposition that a State cannot justify the repudiation of its solemn engagements by the claim that the police power cannot be diminished.
The existence of this power on the part of the legislature to bind the State, by a grant of a right to take tolls, is one thing, and the question whether it has been exercised is quite another. We shall find numerous cases where it has been held that the State has not parted with this power, and, we may add, many of these seem to admit that such a contract may be made by apt and clear language showing such intent. The case of Stone v. Railroad Co., 62 Miss. 607 (52 Am. Rep. 193), is a case in point. The railroad company was incorporated by an act of the legislature of the State of Mississippi approved February 17, 1882, which contained the following, among other sections:
“Sec. 6. That said company shall have and possess the power of fixing, from time to time, by its board of directors, the rates at which it will do express and telegraph business, and shall transport other express companies as may apply for transportation over its line, at a just and reasonable rate of compensation, and also the rates at which said company will transport persons or property over its railroads and branches: Provided, said last-mentioned rates shall not exceed four cents per mile for each passenger, nor exceed the following rates of freight: * * * but in no case shall the railroad company be limited to a less charge than 25 cents for the transportation of any passenger, parcel, package, or article, however short the distance. The rates so established from time to time by the said board of directors for transporting persons or property as a railroad company, not exceeding the maximum rates for railroad business as above set out, may be charged and collected by said company.”
Subsequently the legislature provided a commission with power to reduce rates. The court of last resort disposed of the case in a forceful opinion, which fully recognizes the rule that a grant of a right to fix tolls may be a valid contract. It is as follows:
‘ ‘ Section 6 of the charter of the appellee confers on the company power to fix, from time to time, by its board of directors, the rates at which it will transport persons or property over its railroads, provided they shall not exceed a maximum specified in the act.
‘ ‘ The power to contract is an essential attribute of sovereignty, and is of prime importance. Its exercise has been productive of incalculable benefits to society, however great may be the evils incident to its injudicious employment. It cannot be denied merely because of its liability to abuse. The power to contract implies the power to make a valid contract. Chartering railroad companies and other similar associations has long been an acknowledged and a favorite exercise of legislative authority. The right to grant charters includes the right to grant such as will be upheld. * * * A grant in general terms of authority to fix rates is not a renunciation of the right of legislative control so as to secure reasonable rates. Such a grant evinces merely a purpose to confer power to exact compensation which shall be just and reasonable. It is only where there is an unmistakable manifestation of a purpose to place the unrestricted right in the corporation to determine rates of compensation that the power of the legislature afterwards to interfere can be denied. It is not to be "presumed that the right of legislative control was intended to be renounced. Every presumption is against that. If the grant can be interpreted without ascribing to the legislature an intent to part with any power, it will be done. Only what is plainly parted with is gone. Fixing rates in a charter is a specification of what is reasonable,' — an exclusion of tacit or implied conditions on the subject. It is an essential part of the contract of incorporation, the most important condition of its existence, the inducing cause of its acceptance.
“That it was the legislative intent to vest in the appellee the unrestricted right to fix-rates within the limits prescribed by the charter is clear. That this was a valid contract by the State, and inviolable by it, we regard as settled authoritatively by Federal and State decisions too numerous for citation. If anything is, or ever can be, settled in American constitutional law, the sanctity and inviolability of a contract between a State and individuals, in the shape of a charter for a business enterprise, accepted and acted on by the corporators on the faith of its terms and provisions, must be so regarded. The appellee has the unquestionable right, from time to time, by its board of directors, to fix the rates at which it will transport over its railroads, provided those rates shall not exceed the ‘maximum prescribed by the charter. That is the contract. These terms were expressly made. On the faith of them capital was invested, and the enterprise set- on foot. It is not allowable now for one of the contracting parties to interfere with the exercise by the other of its plainly granted rights. They are secured beyond the reach of legislation, and cannot be impaired. The State cannot, by an act of its legislature, abdicate the right to govern artificial as well as natural persons, but it may create corporations, and, where they are not a part of the machinery of government, the franchise cannot be resumed by the legislature, or its benefits be essentially impaired, without the consent of the grantee. To hold otherwise would be revolutionary, and disturb the foundations of society as molded by the judicial utterances of half a century of constitutional government in America.”
We think there is no force in the suggestion that this decision might have been different had the legislature itself fixed the reduced rate, instead of attempting to delegate the authority to a commission.
See, also, Georgia, etc., Banking Co. v. Smith, 128 U. S. 174, where Mr. Justice Field said:
“It is conceded that a railroad corporation is a private corporation, though its uses are public, and that a contract embodied in terms in its provisions, or necessarily implied by them, is within the constitutional clause prohibiting legislation impairing the obligation of contracts. If the charter in this way provides that the charges which the company may make for its services in the transportation of persons and property shall be subject only to its own control up to the limit designated, exemption from legislative interference within that limit will be maintained.”
In the case of Reagan v. Trust Co., 154 U. 8. 362, Mr. Justice Brewer said:
‘ ‘ If the charter had in terms granted to the corporation power to charge and collect a definite sum per mile for the transportation of persons or property, it would not be doubted that the express stipulation formed a part of the obligation of the State, which it could not repudiate.”
In the case of Chicago, etc., R. Co. v. Iowa, 94 U. S. 155, Chief Justice Waite used similar language. He said:
“ It was within the power of the company to call upon the legislature to fix permanently this limit, and make it a part of the charter, and, if it was refused, to abstain from building the road and establishing the contemplated business. If that had been done, the charter might have presented a contract against future legislative interference; but it was not, and the company invested its capital relying upon the good faith of the people and the wisdom and impartiality of legislators for protection against wrong under the form of legislative regulation.”
Again, in Peik v. Railway Co., 94 U. S. 164, he said:
“In Munn v. Illinois, 94 U. S. 113, and Chicago, etc., B. Co. v. Iowa, Id. 155, we decided that the State may limit the amount of charges by railroad companies for fares and freights, unless restrained by some contract in the charter, even though their income may have been pledged as security for the payment of obligations incurred upon the faith of the charter. So far this case is disposed of by those decisions. ”
The-same power is recognized in the case of Buggies v. Illinois, 108 U. S. 526.
The case of State v. Maine Cent. R. Co., 66 Me. 488, supports the doctrine that a valid contract may be made, though restrictive upon the subsequent exercise of the police power, — citing numerous authorities; and we may conclude the discussion of this subject as we commenced it, by saying that, as we understand the authorities, they are practically uniform upon the main proposition.
Having reached the conclusion that the State had power to make a valid contract with the respondent, whereby it was authorized to fix rates, we will next examine the charter, to ascertain whether its language should be so construed. The history of this charter is familiar. The State had entered upon' a policy of internal improvement, which, at the time this charter was granted, had been found impolitic and disastrous, and the Constitution adopted soon after reflected public sentiment by prohibiting the State from engaging in any work of internal improvement except by grant of property. It had , commenced to build lines of railroad across the State. The public documents of the day, such as gubernatorial messages and legislative papers, clearly indicate that negotiations were had for the sale of the Central road,, in which the price to be paid and the privileges to be accorded were carefully weighed. ■ In his message to the legislature Gov. Felch said:
“Much complaint has existed, of the high charges for freight on these roads; yet, even at these rates, it is very doubtful whether anything has been received from this branch of their business above the expenses of transportation and the actual injury to the roads and their stock and fixtures. * * * It would seem that true policy requires that the Central road should be speedily rebuilt with T. or H. rail. * * * No direct proposition for the purchase of these works, or either of them, has yet been made, but it is understood that there are those who are ready to negotiate for the purchase, if it can be made on terms sufficiently favorable. The granting of an act of incorporation to the purchasers seems to be deemed indispensable. The reluctance of many of our citizens to see these important works fall into the hands of corporate bodies has occasioned some opposition to the proposed sale, and it must be admitted that this objection is not without weight. If ‘the legislature should entertain the proposition favorably, it will, of course, be in their power to annex to the corporation such guards and restrictions as shall best secure the public interests. A maximum rate of tolls may be established in the charter. The company may be required to finish the road in the best possible manner, and. in such time as the legislature may designate, and to keep it in the best possible repair and in constant operation. The right of repurchase after a certain period and on certain conditions may, if deemed advisable, be retained by the State, and a simple method in case of forfeiture of the chartered privileges may be adopted for annulling the charter and revesting the property in the State. But, while every requisite guard should be thrown around such chartered rights, it should be remembered that the facilities granted in such charter will be regarded as of the utmost importance by those proposing to purchase, and the character of the provisions may very possibly determine the question whether or not a sale can be effected. The utmost discretion is therefore necessary in so framing the provisions of such a charter as to protect as fully as possible the public weal on the one hand, and not to defeat the possibility of a sale by unusual restrictions and impracticable requirements on the other.” Joint Documents 1846, Introduction, pp. 27, 28.
The legislative records show the following:
“The select committee to whom was referred so much of the message of the governor as relates to the sale of the works of internal improvement, and to whom have been also referred great numbers of petitions very numerously signed, and coming from almost every portion of the State, praying for the sale of the public works, beg leave to report: * * * It is without precedent that any company has brought to the West such an amount of money to be invested in any enterprise. In looking through the length of the land, your committee find but one district of country in which capital to that amount can be well spared for investment at a distance, and but one class of men in that district whose vigilant and far-seeing eye would be likely to engage them in such an adventure. The men named in the bill presented are of that class. Of their ability to take and complete the road no doubt is entertained, and your committee have strong grounds to believe that they will purchase the road on tlje terms proposed, if the bill shall become a law in its present shape; but, in case any material alteration is made, they cannot anticipate with any confidence such a result. * * * To protect the people against unreasonable charges for freight and passengers, the maximum for passengers within the State is three cents per mile, and upon the great staples of produce and consumption, flour, grain, lime, plaster, salt, * * * the tolls are limited to the average of tolls on the best New England roads upon the same articles; these rates to be reviewed and adjusted once in ten years, if the State desires it. ” House Documents 1846, Doc. No. 2.
“That the Central and Southern roads present sufficient inducements to capitalists to make a purchase desirable seems to be generally conceded, but the sum of money they will bring cannot, of course, be ascertained until terms of sale are proposed and an offer made. * * * Again, the amount of money which a company would be willing to pay would be increased or diminished by the extent of the privileges and corporate powers which the legislature might see fit to'grant. Unusual restrictions Or reservations would either prevent a sale altogether, or lessen very materially the price which the purchaser might otherwise be willing to give. The policy of the legislature in this respect should be, in the opinion of your committee, to grant a charter delegating liberal powers and privileges, but so defined and guarded as to keep'the companies in proper check and prevent abuse. On such terms a sale could probably be effected, while it might be impracticable to sell should greater restrictions be imposed. , Capitalists will not invest their money where the rights to be acquired are ill-defined, or where they can be interfered with, or taken away, at the option of a legislature.” Senate Documents 1846, Doc. No. 9.
It would seem obvious that the granting of a right to fix tolls within a limit prescribed was intended.
The first section of the act (Act No. 42, Laws 1846) created the corporation. The second provided for the purchase, of the road and property pertaining thereto for the sum of $2,000,000. Section 3 provided for a forfeiture and dispossession in case of a failure to meet the payments as agreed upon. Section 12 provided:
‘ ‘ The said company * * * shall have power to regulate the time and manner in which goods and passengers shall be transported, taken, and carried on said railroad, as well as the manner of collecting all tolls and dues on account of transportation, carriage, and storage.”
Section 15 provided that it should be lawful for said company, from time to time, to fix, regulate, and receive the tolls and charges taken for the transportation of property and persons on said railroad, subject only to a limitation as to passengers of three cents a mile, and ten cents in addition on distances not exceeding thirty miles.
The following provisions of sections 36 and 39 may be mentioned in this connection:
1. The State reserves the right, at any time after January 1, 1867, to purchase said railroad, and all the property, effects, and assets of the company, upon terms named, based upon the market value of the property at the time of such purchase.
2. The rights and franchises vested or which may vest in the company under or by virtue of said act “shall not in any manner be prejudiced or affected save as herein provided, or by judicial proceedings, or by a repurchase of said railroad, to be made by the State ” as in said section (36) provided.
“3. The State reserves the right, at any time after thirty years from the passage of this act, by a vote of two-thirds of each branch of the legislature, to alter, amend, or repeal the same: Provided, that said company shall be compensated by the State for all damages sustained by reason of such alteration, amendment, or repeal.”
Section 15 makes it lawful for the company to use its own judgment in fixing tolls, and provides that it shall not receive more than three cents per mile for the transportation of passengers, and imposes a penalty for charging more. In the case of Georgia, etc., Banking Co. v. Smith, 128 U. S. 174, a charter containing the following provision was before the court:
“The said Georgia Railroad Company shall, at all times, have the exclusive right of transportation or conveyance of persons, merchandise, and produce over the railroad and railroads to be by them constructed, while they see fit to exercise the exclusive right: Provided, that the charge of transportation or conveyance shall not exceed fifty cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement, for every one hundred miles, and five cents per mile for every passenger. ”
At first blush this might seem to authorize the fixing of rates within the limit of five cents a mile. But the court held otherwise. It will be noticed that the provision there construed gave to the railroad an exclusive use of the road, which theretofore was supposed to be open to use by others, upon the proviso that the charge for transportation should not exceed five cents. So long as this price was not exceeded, the right would continue exclusive; but it did not follow that a contract right to fix tolls up to five cents was conferred. The section contained no express grant of power, and none is necessarily implied. Such was the construction of the court, but it was careful to say:
“If the charter in this way provides that the charges which the company may make for its services in the transportation of persons and property shall be subject only to its own control up to the limit designated, exemption from legislative interference within that limit will be maintained.”
Again, there is a class of cases where charter provisions give the right to fix rates in general terms. That is no more than the common carrier would have by implication were the charter silent upon the subject of compensation. In Stone v. Trust Co., 116 II. S. 307, the charter under consideration granted to the company the right, “from time to time, to fix tolls and charges.” It prescribed no limit. The court held that, in the absence of words of positive grant, or their equivalent in the law, the power of the State to regulate would not be cut off, and that reasonable doubts should be resolved in favor of the State; -citing the words of Mr. Chief Justice Marshall in Providence Bank v. Billings, 4 Pet. 514, 561, that “its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appearciting, also, Charles River Bridge v. Warren Bridge, 11 Pet. 420; Minot v. Railroad Co., 18 Wall. 206; Bailey v. Magwire, 22 Wall. 215; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Newton v. Commissioners, 100 U. S. 548. Referring to the provision of the charter, the court said:
“We find, first, the authority given to carry persons and property. This of itself implies authority to charge a reasonable sum for the carriage. In this way the corporation was put in the same position a natural person would occupy if engaged in the same or like business. Its rights and privileges in the business of transportation are just what those of a natural person would be under like circumstances; no more, no less. The natural person would be subject to legislative control as to the amount of his charges; so must the corporation be.”
In short, the provision that it might, from time to time, fix tolls, was a grant of nothing that it would not have had the right to do had it not been inserted, and did not have the effect of enlarging its rights, as no intention to do so was apparent.
In Stone v. Illinois Cent. R. Co., 116 U. S. 347, the charter granted power “to establish such rates for trans-' portation as they may deem proper, and to alter and change them at pleasure; ” and it was held that it did not show an intent on the part of the legislature to part with the power to regulate. The provision was substantially the same as that in Stone v. Trust Co., supra. The other railroad commission case — Stone v. New Orleans, etc., R. Co., 116 U. S. 352 — needs no discussion further than to say that the charter there discussed expressly reserved to the legislature the power to regulate rates.
The charter of the respondent contains a direct grant of power to fix, regulate, and receive tolls. It also fixes what it evidently considered a reasonable rate as to passengers, viz., three cents per mile. It clinches the matter by providing that the respondent’s right to fix tolls should be limited by this rate of three cents, and by that only. It was not, then, a general grant of power, and therefore limited to fixing rates the reasonableness of which should be determined by the usual methods, and consequently the same power as any individual or corporation would have without it, but was intended to confer a contract right to fix tolls, within the limit of three cents a mile, as plainly as though it had provided that said road should have the right to charge three cents a mile, or less, in its discretion, for transportation of passengers. It will be noticed in the cases cited- that in no case where a maximum rate was fixed has the right of the company to fix tolls to that amount been denied. This case is even stronger than such, inasmuch as the charter expressly fixes the limitation, and unqualifiedly states that such shall be the only limitation of the company’s power.
But our attention is called to the provisions of sections 11 and 30, which are said to limit the power conferred by section 15. Section 11 contains the provision that “the said company shall have power to charge for tolls and transportation such sums as shall be lawfully established by the by-laws of said company.” Section 30 confers upoh the board of directors the power to do many acts, and concludes as follows: ‘ ‘ And shall have power to pass all by-laws which may be necessary for the carrying into execution all the powers vested in the company hereby incorporated: Provided, such by-laws shall not be contrary to the Constitution or laws of the United States or of this State.” It is contended that these provisions negative any contract right, to the exclusion of regulation of rates by the legislature, that otherwise might be conferred by section 15, and we are cited to Ruggies v. Illinois, 108 U. S. 526, in support of the contention. The charter provisions in that case conferred only a general power to fix rates, and we have already shown that such provisions do not confer a right to do more than fix reasonable rates within the limits that the legislature may, from time to time, prescribe. The provision was as follows:
“Shall have power to make, ordain, and establish all such by-laws, rules, and regulations as may be deemed expedient and necessary to fulfill the purposes and carry into effect the provisions of this act, and for the well ordering, regulating, and securing the affairs, business, and interest of the company: Provided, that the same be not repugnant to the Constitution and laws of the United States, or of this State, or repugnant to this act.”
The court, after quoting the above provision, which was a part of an amending section (section 6), proceeds as follows:
“By section 5 all the powers of the company were vested in and could he exercised by the directors. Clearly, under this authority no by-law can be established by the directors that does not conform to the laws of the State, and this whether the laws were in force when the amended charter was granted or came into operation afterwards. The power of the company for the regulation of its own affairs was thus in express terms subjected to the legislative control of the State. The corporate power was a continuing one, and intended for the ordering of the affairs of the company as circumstances might, from time to time, require. The reserved control by the State was also continuing in its nature, and manifestly intended for the protection of the public whenever, in the judgment of the legislative department of the government, the necessity should arise.
“ Then follows the special provision on which the claim of a contract is predicated. It is as follows:
“ ‘ The board of directors shall have power to establish such rates ■ of toll for the conveyance of persons or property upon the same as they shall, from time to time, by their by-laws, determine, and to levy and collect the same for the use of the company.’ ”
• In commenting upon this the court said:
“Grants of immunity from legitimate governmental control are never to be presumed. On the contrary, the presumptions are all the other way, and, unless an exemption is clearly established, the legislature is free to act on all subjects within its general jurisdiction as the public interests may seem to require. As was said by Chief Justice Taney, speaking for the court, in Charles River Bridge v. Warren Bridge, 11 Pet. 420, 547: ‘ It can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created.’ This is an elementary principle. In Chicago, etc., R. Co. v. Iowa, 94 U. S. 155, Peik v. Railway Co., Id. 164, and Winona, etc., R. Co. v. Blake, Id. 180, it was determined that ‘a State may limit the amount of charges by railroad companies for fares and freights, unless restrained by some contract in the charter.’ The right to a reversal of the present judgment rests on the question whether this company has any such restraining contract, and that depends on the effect to be given the amending section 6.
‘ ‘ The company, by its original charter, was authorized to transport passengers and property, and to receive compensation therefor. This, if there had been nothing more, would, under the rule stated in Munn v. Illinois, 94 U. S. 113, and -the several railroad cases decided at the same time, require the company to carry at reasonable rates, and leave the legislature at liberty to fix the maximum of what would be reasonable. So that, laying aside the limitations of the old charter, the question here is whether the amending section relied on has the effect of taking away from the State this power of legislative regulation. * * * This is the form in which the power to charge and collect compensation for the carriage of person^ and property was granted by the amended charter. The rates must be fixed by by-laws, and no by-law can be made that is at all repugnant to the laws of the State. The first paragraph of the section, with its proviso, prescribes generally what is necessary to the validity of a by-law, and the second allows the directors to fix rates by by-laws. It is undoubtedly true that the first paragraph neither adds to nor takes from the inherent power of a corporation to make by-laws for the regulation of its affairs, and that the proviso is nothing more than a legislative declaration of the principle of the common law that all by-laws must be reasonable, and not in conflict with the laws of the State. But the very fact that such a provision would have been implied adds to the significance of its incorpo ration in express terms into the charter, and manifests a determination not to leave room for doubt as to the right of the State to use its legislative power if necessary for the regulation of the affairs of the corporation, at least by the enactment of general laws applicable to all corporations of a like character and engaged in a like business. There is nothing which, even in the remotest degree, indicates that a by-law fixing rates is to be of a different character from those regulating the other business of the company. When, therefore, in-a section of the charter which expressly declares that no by-law shall be made that is in conflict with the laws of the State, we. find that the rates of charge to be levied and collected for the conveyance of persons and property are to be regulated by by-laws, the conclusion is irresistible that only such charges can be collected as are allowed by the laws of the State. This implies that, in the absence of direct legislation on the subject, the power of the directors over the rates is subject only to the common-law limitation of reasonableness, for, in the absence of a statute or other appropriate indication of the legislative will, the common law forms part of the laws of the State to which the corporate by-laws must conform. But since, in the absence of some restraining contract, the State may establish a maximum of rates to be charged by railroad companies for the transportation of persons and property, it follows that, when a maximum is so established, .the rates fixed by the directors must conform to its requirements, otherwise the by-laws will be repugnant to the laws.”
It is noticeable that in the present case we do not ‘ find the section granting the power to fix rates by by-law in the same section that declares that by-laws shall not be in conflict with the laws of the State,” nor do we find a mere general authority to fix rates, nor a mere mention of a maximum rate. In construing this charter we must, as in any other case, endeavor to • ascertain the intent of the legislature, and we are of the opinion that sections 11 and 30 should not be held to qualify the unambiguous grant •contained in section 15.
We have yet to consider the question whether the right which is claimed under section 15 has been lost by surrender. Counsel assert that it has been lost by reason of. respondent’s acceptance of additional privileges under acts professedly or impliedly amendatory of its charter, and under the general railroad law; and, secondly, by reason of its consolidation with, or absorption of, the property and franchises of other railroad corporations of the State. It is said that in 1846 the Michigan Central Railroad Company became a corporation, with the right of perpetual succession, and the right to complete the half-finished railroad within the borders of this State, and to have a capital of $8,000,000; that at the present time the respondent has a continuous line through the States of Michigan, Indiana, and Illinois, and that it operates some and owns other railroads in this State, all of which it operates in conjunction with its own, the corporations owning which are sáid to have practically ceased to exist; that the roads are known to the public only as parts of the Michigan Central Railroad, and the companies which built them can only be reached through the Michigan Central; and that in some instances it owns the entire stock of such roads. We do not discover that it is asserted that the respondent’s relations with these roads are unauthorized, and, if they were, we are not advised that the claim is made that the charter has been declared forfeited thereby. Our understanding of the claim is that, by drawing to itself these privileges and railroads, it has surrendered its rights under the original charter, and, through a consolidation, has become a new corporation, which, having come into existence since 1850, is subject to the powers reserved by the present Constitution.
In 1848, by Act No. 197, entitled “An act to amend an act entitled,” etc. (describing the respondent’s charter), the legislature extended the powers of the corporation theretofore formed, and authorized it to build and operate a railroad from the southern line of this State to Chicago. The charter, by section 36, reserved to the State the right to purchase the property of this company upon terms therein stated. Counsel say that the act of 1848 contained no saving clause as to the old charter, and that it ■destroyed the option of the State to purchase under section 36, because it destroyed the basis of fixing the price. We think a sufficient answer to this is the question “whether the repeal of section 36, thereby depriving the State of the right to purchase, would have dissolved the corporation.” It must be manifest that it would not, and we know of no authority to support the proposition that an enlargement of the powers of a corporation puts an end to its life, and at the same time creates another. To follow this suggestion to its logical consequence under the Constitution of 1850, it might be contended that an effort on the part of the legislature to increase the powers of a corporation would result in diminishing them by operation of law. We think the amendatory acts had no such effect as to dissolve the corporation, whether they were enacted before or after the adoption of our present Constitution, and that the act of 1855 (Act No. 139) authorizing ■the Michigan Central to build a double track, and to sell bonds therefor, and to make business contracts and arrangements with other railroads, organized or to be organized, for operation thereof by the Michigan Central Company, had no such effect.
It is urged that the necessary effect of that amendment was to amend the general railroad law, inasmuch as it necessarily gave the other companies powers of dealing that they did not have under the general railroad law; and that while, under the general railroad law, they could only consolidate, under this act they could make business contracts and arrangements which amounted to consolidation, though not technically called such, and that the act, if treated as enlarging the charter, was void. We need not concern ourselves, at this juncture, with the question of the validity of this legislation. The only question we are concerned about is whether the then existing Michigan Central corporation was dissolved by it, and whether a new one arose, Phoenix-like, from its ashes. One thing would seem obvious: If the amendatory act was void, as suggested, it could hardly dissolve one corpora tion or create another; if valid, we know of no authority which indicates that it must have the effect suggested. All of the acts purporting to amend the charter contain language indicating the right of the company to accept or reject such amendments, and they were accepted or rejected, as provided by the charter, and they all show an absence of the understanding by any one that they should destroy the existing or create a new corporation. This question was passed upon in the case of Attorney General v. Joy, 55 Mich. 107, where it was held that an act authorizing the Detroit & Pontiac Railroad to take a new name, and under that new name to extend its road from Pontiac to Lake Michigan, did not create a new corporation.
The general railroad law authorizes consolidation by all companies organized under it. We do not find it necessary to inquire whether the respondent could lawfully avail itself-of those provisions if it were disposed. But, assuming that it might, has it done so by compliance with such provisions, or by a course of dealings which should be held to have had that effect ? The law providing for consolidation clearly implies that the result of the statutory consolidation is a new corporation. See 1 How. Stat. § 3343. This is in accord with the majority of such statutes throughout the country, as will be seen by a comparison. Thomp. Corp. § 305. . But this statute does not necessarily imply that the only arrangement for an extension of lines must come through a statutory consolidation, and other statutes' permit arrangements of a different character to be made. We have already cited one, which was added to this charter by amendment. Laws 1855, Act No. 139. Undoubtedly, if a law points out a method by which railroads may consolidate, and provides that, upon compliance with such law, the consolidated companies shall constitute a new corporation, such new company could not deny the effect of its acts. It is not so clear that anything less than full or substantial compliance would enable it to claim new corporate rights. It is not to be presumed that consolidation is favored. On the contrary, it is usual for legislatures to hedge the privilege about with conditions that tend to the preservation and encouragement of competition, and prevent the sacrifice of public interests through monopolies. In Elliott on Railroads (section 323) it is said:
“These enabling statutes are construed to authorize a consolidation only in cases where the companies seeking to combine come fairly within the terms of the statute. * * * Where the statute provides for the mode of consolidation, that mode must be substantially, if not strictly, pursued.”
See Rodgers v. Wells, 44 Mich. 411; Mansfield, etc., R. Co. v. Drinker, 30 Mich. 124; Peninsular R. Co. v. Tharp, 28 Mich. 506.
The intention to consolidate may be an important consideration .where the act is ambiguous or uncertain, and in Elliott on Railroads (section 324) it is said that “a clear intention to consolidate, together with the performance of acts reasonably appropriate to that end, must be shown in order to establish a consolidation,” where the act is consistent with a different intent. Thus, the union of name, officers, business, and property does not, it has been held, change their distinctive character as separate corporations. Nashua & Dowell Railroad v. Boston & Dowell Railroad, 136 U. S. 356. The mere purchase by one railroad corporation of the franchise and property of another does not make the purchaser the successor, by consolidation^ of the purchased road. Thus, in the case before us, the numerous arrangements by which the respondent manages, owns, or is otherwise interested in its several branch lines, and which are not shown in the record, may not amount to a consolidation in a general sense, or, if they do so, not in the sense of the statute. Where the statute is silent in regard to the effect of consolidation, a new corporation is not always the necessary consequence. “Succession is not necessarily consolidation, and a corpora tion may have authority to become the successor of another without having any authority to consolidate.” Elliott, R. R. § 324. “If the merger is complete, it is evident that the one corporation' is extinguished, unless kept alive for certain purposes; while it is equally clear that the other, in which it is merged, is not dissolved.” Id. 335. See, also, Thomp. Corp. § 396, where it is said that the existence of a new corporation as the result of consolidation depends upon the legislative intent manifested in the statute under which the consolidation takes place. Central Railroad & Banking Co. v. Georgia, 92 U. S. 665. If there is no statute authorizing consolidation, the attempt is ultra vires. Elliott, R. R. § 322; Thomp. Corp. § 315, and cases cited. This case is unlike that of Smith v. Railway Co., 114 Mich. 460. In that case the answer of the company to the order to show cause alleged that it had taken the steps prescribed by statute for the purpose of effecting a consolidation. In the present case there appears to be no such admission, and the record does not show that the Michigan Central has ever intentionally proceeded to effect a statutory consplidation. As said in Elliott on Railroads (section 335):
“The term ‘consolidation’ is an elastic one, and may include a union of two or more corporations into a new one, with a different name, with or without extinguishing the constituent corporations, or the merger of two or more corporations into another existing corporation under the name of the latter.”
We have seen that the legislature has, by an amendment to the Michigan Central charter, authorized it to mak business arrangements with other companies owning railroads. If so, it may enforce them. It may operate other roads, possibly buy their property or their stock. But if it be conceded that they cannot lawfully do these things, and therefore that their acts were ultra vires, are they not acts that subject them to a forfeiture of all rights through quo warranto, rather than a new grant of power under consolidation acts which they have neither attempted to act under nor complied with in making business arrangements with other roads ? In the list of charges against this respondent are to be found the extension of lines by building, the operation of other roads, the acquisition of all of the stock of some or the owning of other roads, the leasing of others for long terms, the increase of capital. If these things are ultra vires, it does not follow that a consolidation has been effected, or, if so, that it is a statutory consolidation, which has created a new corporation. If, on the other hand, these are valid arrangements, and lack the substantial requisites of the consolidation provided by statute, the stockholders of the Michigan Central Railroad Company are not thereby deprived of their charter rights. They have never assented to a consolidation. The company could not, as a new corporation, enforce collection of stock subscriptions, and could not compel the State to recognize it as a new corporation.
The further claim is made that, granting all of the foregoing, Act No. 90, Pub. Acts 1891, is to be treated as an exercise of the power of amendment reserved in the charter, and must be accepted and acted upon, subject to the right of the respondent to collect its damages from the State. We think this cannot be. The act does not'purport to be an amendment of the charter, and no provision for compensating the respondent is contained in it. There is no provision of law for the payment of such claim, and the respondent would be powerless to enforce it.
We therefore reach the conclusion that the respondent had a vested right to fix its own tolls, and that to hold the act of 1891 applicable to it would be to impair the.obligation of the contract made between the State and the company. To bring this company under the power of the State .in the matter of the regulation of tolls, if desirable, must be done by the method pointed out in the charter. It would doubtless be a convenience to the public to enjoy the privilege of travel upon this line at a two-cent rate, either under this act or the act discussed; but it cannot be accomplished, under this act, as to the line constructed, under the original .charter. The language of Mr. Justice Harlan in New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 673, is suggestive in this connection:
“If, in the judgment of the State, the public interests will be best subserved by an abandonment of the policy of granting exclusive privileges to corporations other than railroad companies, in consideration of services to be performed by them for the public, the way is open for the accomplishment of that result with* respect to corporations whose contracts with the State are unaffected by that change in her organic law. The rights and franchises which have become vested upon the faith of such contracts can be taken by the public, upon just compensation to the company, under the State’s power of eminent domain. [Citing cases.] In that way the plighted faith of the public will be kept with those who have made large investments upon the assurance by the State that the contract with them will be performed.”
The order of the circuit court for the county of Wayne is reversed, with costs of both courts.
The other Justices concurred. | [
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Montgomery, J.
This bill was filed to restrain the. collection of a special assessment, upon property of the estate represented by complainant, to meet the cost of a lateral sewer. The court below dismissed the bill, and complainant appeals.
It is contended by the defendants that the decree should be affirmed without reference to the irregularities in the proceedings, if any, for the reason that there is no showing of fraud, and the complainant waited, before taking any proceedings, until the work of the construction of the sewer was completed. Defendants cite, to sustain this contention, Lundbom v. City of Manistee, 93 Mich. 170; Byram v. City of Detroit, 50 Mich. 56; Goodwillie v. City of Detroit, 103 Mich. 283; Fitzhugh v. City of Bay City, 109 Mich. 581; and the curative section of the general tax law. We regard the rule laid down in the cases cited as salutary and just, and, if the facts in this case admitted of the application of that rule, we should apply it with great satisfaction to ourselves. For although, as will be shown later, we feel constrained to hold that the basis adopted for assessment was erroneous, and therefore jurisdictionally defective, yet we are left in doubt as to whether the complainant’s cestuis que trustent have really suffered any substantial injury by reason of this departure. We find, however, in this case, an admission of record that the complainant had no knowledge of these proceedings until long after they were taken, and feel that we cannot, in view of this admission, ignore jurisdictional defects without doing violence to established principles.
We need discuss but one defect in the proceedings. Act No. 313, Local Acts 1895, § 2, provides:
“That all lateral and connecting sewers maybe constructed at the cost and expense of the lands, tenements, and premises adjacent thereto and benefited thereby, and the cost thereof may" be levied on and assessed against such lands, tenements, and premises, and collected from the owners thereof, by foot frontage, according to benefits, or by land values, as the common council shall or may determine by ordinance.”
The record shows that the assessment was made on the basis of the value of each parcel, “exclusive of improvements erected thereon.” While it was doubtless competent for the legislature to have authorized an assessment on a basis which would exclude the value of improvements (Cooley, Tax’n [2d Ed.], 649), the statute in question does not do so, but authorizes an assessment based upon the value of the land. Land, of course, includes the structures and improvements thereon. 2 Bl. Comm. 18. It follows that the basis adopted was unauthorized, and the assessment was jurisdictionally defective. The assessment must be set aside, but without prejudice to a reassessment, if the city shall be advised that one may be lawfully made. Complainant will recover costs against the city.
The other Justices concurred. | [
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Long, J.
Action of replevin, in which the court below directed verdict in favor of plaintiff for six cents damages. Defendants bring error.
It appears that in December, 1893, the defendants were the owners of 159£ acres of land in Ionia county. They employed C. E. Temple, a real-estate agent, to borrow $7,000 upon said real estate. Temple applied to the plaintiff for money, and he furnished it, a part being paid, and the balance put into the bank in escrow, to be delivered when required. This loan was being made for the purpose of taking up two mortgages existing on the property, — one for $5,400, and one for $2,100, — both of which had been foreclosed, and the period of redemption nearly expired. The $7,000 being insufficient to take care of both these mortgages, Temple, as agent for defendants, applied to plaintiff for a further loan of $500, either as an addition to the first mortgage or with a second mortgage on the same property as security. Plaintiff refused both these propositions, upon which Temple made application to Royal A. Hawley, of Ionia, to assist in the matter. Hawley signed two promissory notes, one for $225, and one for $275, with defendant Sherwood, both notes being made payable to the plaintiff. To secure Hawley for these indorsements, the defendants gave him a chattel mortgage of $500 on a quantity of personal property; and, as additional security, they transferred their equity of redemption in 59-J- acres of the lands above mentioned. The moneys obtained on these two notes to plaintiff were used in paying np the former mortgages, paying costs, etc.
A short time after giving these notes, mortgage, and deed, Sherwood commenced cutting timber on the lands. The plaintiff thereupon, as mortgagee, obtained an injunction from the Ionia circuit court, in chancery, restraining Sherwood from cutting timber. Hawley thereafter filed a petition asking to have said injunction modified to the «extent of allowing sufficient timber to be cut to pay the $500 notes. Plaintiff thereupon filed a petition praying that Hawley be ordered to exhaust his chattel-mortgage security, or that he (plaintiff)- be subrogated to all the rights of Hawley in the mortgage. Evidence was taken on the petitions; and the court refused to modify the injunction, but ordered Hawley to assign the chattel mortgage to plaintiff, and subrogated plaintiff to all the rights of Hawley therein, and directed that upon such assignment plaintiff be empowered and authorized to sell sufficient of the property to satisfy the expenses of sale and the amount due on the notes, and release Hawley from liability in so far as the amount realized should pay the notes. After the assignment of the mortgage to plaintiff, he, acting under the order of the court and in accordance therewith, demanded the personal property covered by the mortgage from the defendants; and, on their refusal to surrender it, Re brought this action of replevin, took possession of the property, and sold it.
Defendants petitioned the court to set aside the order •directing the assignment of the mortgage to plaintiff. This was denied by the court. The assignment of the mortgage from Hawley to plaintiff recites: “ This assignment is made in order to comply with an order of the (circuit court for the county of Ionia, in chancery, made 'the 13th day of September, 1894.” Upon the refusal of the court to set aside the order directing this assignment, an application was made to this court for a mandamus to compel the court below to set the order aside. On the hearing in this court, the writ of mandamus was denied, on the ground that appeal was the proper remedy. Sherwood v. Ionia Circuit Judge, 105 Mich. 540.
Upon the trial of the replevin case, the defendants sought to show:
1. That they had no notice or knowledge of the hearing -on the petitions of Hawley and plaintiff, and no opportunity to be heard.
2. That the chattel mortgage on which the suit was brought was not given on the conditions and terms of the notes offered in evidence, but was in fact given for the purpose of guaranteeing the honest use of the money received from the timber; and the circumstances under which the mortgage was given, and the real consideration therefor.
3. That a large portion of the personal property covered by the mortgage in question was the sole property of Mrs. Sherwood, and the debt was not her debt.
4. ' That the plaintiff had told Mr. Sherwood that Temple was his agent, and that any arrangement he made with Temple would be all right and satisfactory to him.’
5. That there was an agreement with plaintiff that defendants should have the right to cut timber.
The court held that these defenses could not be made, for the reason that all these questions had been settled in the former proceedings, and that case was res adjudicaba.
In this the court was not in error. The court of chancery had jurisdiction to pass upon these questions. Bigelow v. Booth, 39 Mich. 622; Crittenden v. Schermerhorn, Id. 661 (33 Am. Rep. 440); Reeg v. Burnham, 55 Mich. 39.
In Huyck v. Graham, 82 Mich. 353, it appeared that a sale had been made in foreclosure proceedings, and that the defendant, upon a bill filed by him to set aside the sale for defects in the notice, had been given the right to redeem on paying the amount actually due, which he failed to do, and summary proceedings were brought against him to recover possession of the premises. It was said:
“The decree did not provide for a resale upon failure to redeem, and in this respect was not in accordance with the established practice; but the defendant seems to have been satisfied with it. Whether it was such a one as he asked for does not appear. It is fair to presume that it was, for it nowhere appears that he objected to it, and he did not appeal. The decree is therefore binding upon him. Were he dissatisfied with it, he should have appealed, and had his rights determined - and the error corrected in that suit. He cannot now be heard to attack it collaterally. * * * The court in the chancery proceedings had jurisdiction of the parties and the subject-matter, and, though the decree be erroneous, it is binding upon both parties until set aside.”
In the present case the parties sought to set the order, aside in a mandamus proceeding, and failed because appeal was the proper remedy. They were notified of that fact by the order of this court, and yet took no appeal. In this collateral proceeding they now seek to have the order made set aside. If an adjudication is once had, and the court had jurisdiction, and any question respecting it arises afterwards in a collateral suit, the adjudication will be held conclusive. Jacobson v. Miller, 41 Mich. 94. The exact points now sought to be raised were involved in the former order of the court; and, on the facts, the court found that the plaintiff was entitled to have the mortgage assigned to him for the purpose of foreclosure; that he should foreclose it, and protect Hawley on the notes. This was done.
But one other question is raised which needs‘consideration. It is claimed that the court was in error in directing the verdict for plaintiff for six cents damages. There would be some force in this claim if the property had sold for an amount larger than the plaintiff’s claim, as he had a lien on it only for the amount of his mortgage of $500. But counsel for defendants in his brief admits that it was sold for only $119, and bid in by plaintiff.
The judgment must be affirmed.
The other Justices concurred. | [
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] |
Per Curiam.
Subdivision 19, § 2, 1 How. Stat., provides that the term “general election” means the election held in November, “unless such construction would be inconsistent with the manifest intent of the legislature.” _ There can be no doubt that the election in the spring of 1897 was in- a sense a general election, and that general elections are periodically held, under our statutes, at times other than in the month of November. But that does not lessen the force of the statute quoted, or its application to cases growing out of acts which do not indicate that the term was to be given a different meaning from that pro vided by section 2. What is there in this statute (Act No. 271, Pub. Acts 1895, § 14) to remove the presumption which arises from section 2 ? If nothing, that section must apply. We find nothing in said act to indicate what is meant by the term further than the use of the term, and it must therefore be held to mean “the general election held in November.
The writ is denied, without costs. | [
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Moore, J.
This is one of two cases, both by agreement tried as one, growing out of a collision between an electric car belonging to defendant, and a milk wagon in charge of the wife of plaintiff. A judgment was recovered of $81, from which defendant appeals.
Defendant’s road is an electric road. The wife of the plaintiff was driving a milk wagon in the village of Essex-ville. She had occasion to cross the track from the south. She was riding in a covered wagon, which had doors at the sides, and a small glass window at the back. The weather was cold, and she had her shawl over her head and ears. According to her testimony, before crossing the track, she stopped the wagon, opened the doors, and looked both ways. She could see to the west a half mile. She saw no car, and crossed the track, and turned to the east, on the north side of the track, and parallel with it. The street on the south side of the track was sandy and soft, and for that reason was not traveled to any extent. On the north side of the track, for about nine feet from the track, it was macadamized with broken stone, which was worn smooth only in two narrow parallel tracks, where the wheels of vehicles ran. Mrs. Manor drove her horse so the wheels of the wagon would follow in these beaten portions of the road. She was familiar with this street, having driven on it frequently. She says she supposed she was driving far enough away from the track so that a car coming from the west could pass her without hitting the wagon. There were two cars run over this line. They passed at intervals of one-half hour each. Mrs. Manor says she looked west as she crossed the track, and saw no car. She had driven east about 300 feet when she heard a bell, and instantly attempted to guide her horse away from the track, when at once her wagon was struck by the car which had overtaken her, and the injury was done.
When the testimony of the plaintiff was all in, the court was asked to direct a verdict for the defendant, upon the ground that plaintiff was guilty of contributory negligence. The court refused to do so, and this is said to be error. We cannot agree with counsel in this claim. It is true, the defendant must run its cars upon the rails, and cannot turn out upon the street; but it has no exclusive right to the use of the street. The plaintiff also had a right to drive her vehicle in the beaten portion of the road, and to act as a reasonable and prudent person would under like conditions. She might dress against the inclemency of the weather. The motorman could see her vehicle for a half mile. He had notice of its proximity to the track, and of the danger to it if he let his heavy car run against it. It is true, he says in his testimony that he rang his gong, and saw Mrs. Manor turn away from the track, and he supposed he could pass her safely, when she turned back into the dangerous position again, and was hit. Testimony was offered supporting and rebutting the testimony of the motorman; but it is perfectly evident from the record that but a moment’s delay and a little more care on the part'of the motorman would have avoided the injury. When the motion was made, the defense had not introduced any testimony, and we do not think it could be said as a matter of law that, under the facts then disclosed by the record, the defendant was excused from any liability because of the injury.
After this motion was overruled, defendant put in testimony which, if believed by the jury, made a complete defense. Testimony was introduced to rebut this defense. The case was submitted to the jury in a charge which is claimed by defendant to be erroneous. The record does not disclose that any written requests were preferred by counsel for defendant. So much of the charge as counsel think necessary for the purpose of making their point is cited in the brief. If more of the charge had been quoted, it would have modified what was quoted. So far as it is necessary to quote, the language used by the circuit judge was as follows:
“Now, gentlemen, the view I take of this testimony narrows the points for your consideration down to two propositions. The woman has given her testimony as to crossing the track, and driving along down beside it. There is no evidence in the case that the thoroughfare was crowded, or that there was any occasion for unusual caution on anybody’s part in the matter. She had a right to cross the railroad, and she had a right to drive down the track, just exactly as she did; and if she turned out, or tried to turn out, immediately on the sounding of the gong, she was blameless; there is no contributory negligence in the case. But if, instead of turning out, and getting out of the way, or attempting to, she turned out in part, and turned around and tried to get back to that position, as testified to by some of the witnesses, and that was the reason why the accident happened, she cannot recover in either case; neither can recover a penny. You have heard the testimony upon that branch of the case, and you will judge of it just exactly — You know it just as well as I do; and it is your province and your duty to determine what the facts were about it. That place there was a common street or highway. Both the railroad company and she had a right there, and when one overtakes another— A man might drive ahead of you with a wagon, and you might be so crowded or loaded that you could not get by him; but you cannot have your horses jam onto his wagon; you must wait until your opportunity comes to pass. The same rule applies to a railroad company. The manager of that car must not be guilty of negligence or carelessness. He had a right to run up to the wagon. He must slow down and get con trol of his car more effectually even than the counsel has stated to you here, so that the control is approximately absolute. A street car and a locomotive are tremendous agencies. They are necessary for the good of society, but they are very dangerous; and while the defendant is innocent if merely running its car and managing it as well as it can, or as a prudent, careful, competent man can manage it, it can do all that and be blameless, and no court or jury has any right to find any damage against it for such conduct. But if this statement was that the woman was trying to get away from the car, and he could have stopped it, and prevented the accident, he was bound to do it. Hence, if that is all there is of the case, your inquiry on the merits of the case perhaps might as well end there. But if, going further, you think that she tried to drive in front of the car after she turned out', and it was so near to her that the men could not have stopped, and that that caused or contributed to cause the accident, you will find no cause of action. A great deal of law argument has been had, and law submitted, to the effect that the plaintiff in this case was guilty of contributory negligence in driving along down the street as she did. I don’t think there was any negligence in doing so until she heard the bell from the car; but that is a matter for you to determine.”
In determining whether this charge is error, we must take the facts disclosed by the record into consideration. This accident did not occur in a crowded street, or in a thickly-populated neighborhood, or in an attempt to cross the track. Mrs. Manor was familiar with her surroundings. She knew when she crossed the track there was no car in sight, and that she would be in sight of the motorman approaching behind her for more than a half mile. She also knew the cars ran only once each half hour. The portion of the roadway which was macadamized and used by the public was comparatively narrow. She'was driving in the usually traveled portion of it, at a distance which she thought was far enough away so she would be safe. It was not unreasonable for her to expect that a car overtaking her would not run into her vehicle without first giving her such notice as would enable her to get out of the way. While it doubtless would have been better for the court to abstain from expressing any opinion as to the negligence of Mrs. Manor, he told the jury it was a question for their determination. He reviewed briefly the claims of the parties, and told the jury, if the facts were as sworn to by the motorman and the witnesses for the defendant, plaintiff could not recover. In Laethem v. Railway Co., 100 Mich. 297, it is held, when the driver of a street car sees that a sleigh is standing so near to the car track as to make the striking of it certain unless it is removed, he is bound, if able to do so, to stop his car, if he sees the driver of the sleigh is unable to move soon enough to avoid the accident. See Montgomery v. Railway Co., 103 Mich. 46 (29 L. R. A. 287 ). In the case of La Pontney v. Shedden Cartage Co., 116 Mich. 514, in speaking of the duty of a motorman towards the driver of a vehicle loaded with a merry-go-round, Justice Montgomery used this language: “It was the duty of plaintiff to have the car under such control as to admit of its being stopped after he became able to discern objects on the track, and before a collision with such objects should occur,” — citing a number of cases. See, also, Goldrick v. Railroad Co., (R. I.) 37 Atl. 635, 2 Am. Neg. Rep. 647. Taking the charge as an entirety in connection with the facts shown by the record, reversible error is not shown.
The judgment is affirmed.
The other Justices concurred. | [
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Hooker, J.
The relator asks a mandamus to compel the several boards of election commissioners of the Twelfth congressional district to place the name of the relator upon the Republican tickets throughout the district as candidate for Congress, to the exclusion of the name of Carlos D. Shelden, each claiming to be the nominee of the regularly called convention of the Republican party. The record shows that a congressional convention was called, and the delegates assembled. It is admitted to have been a regularly called convention, and therefore its nominee, if ascertainable, is lawfully entitled to have his name printed upon the ticket.
At the appointed time a large number of persons assembled. Previous to its meeting, George A. Newett, the chairman of the congressional committee, assembled his committee, which, by á vote of three for and two against the proposition, decided that the committee should ascertain in advance what persons were lawful delegates from those counties where there were contesting delegations, and that such persons, and such only, should be permitted to participate in the preliminary work of organizing the convention. For the purposes of this opinion it is sufficient to say that two counties — Dickinson and Marquette — had contesting delegations, and it appears to be admitted that, leaving these counties out, there were 35 delegates who favored'the nomination of Mr. Shelden, and 31 who supported the relator. Here, then, was one assembly, in which 87 delegates were entitled to seats, and there were 66 present who are conceded to have been entitled to seats. The chairman of the committee called the convention to order, and, while reading or about to read the call for the convention, a delegate whose right to a seat was unquestioned arose and said, “I nominate Chase Osborn for chairman,” and himself put the question, and declared it carried; whereupon Osborn, also a delegate whose right to a seat is undisputed, appeared upon the platform, and attempted to preside over the convention; and, as appears by the proceedings of the convention set up in the return of the respondents and affidavits accompanying the same, the business was proceeded with, credentials examined and passed upon, and Carlos D. Shelden nominated,- when the convention, or that portion which had not declined to take part in these proceedings, adjourned sine die, and its members left the hall. Meantime Mr. Newett, who occupied the same stage, had been elected chairman by a faction of the assembly, a secretary chosen, and committee on credentials appointed, who, after the lapse of a couple of hours, and therefore after the adjournment of the other faction, made a report seating delegations favorable to the relator, and, this being adopted, this faction nominated the relator, and adjourned sine die. The officers of each faction filed certificates of nomination with the several boards of election commissioners, and, while we do not find it explicitly so stated, it is perhaps inferable that in some cases these boards refuse to place relator’s name upon the ballot, and that others are disposed to do so, to the exclusion of Mr. Shelden.
The relator contends that it was the right and duty of the chairman, acting under the direction of a majority of ' the committee, to preside over the assembly until the convention should be organized, and to determine who were entitled to vote in effecting such organization, and that the organization of a meeting through the election of Mr. Osborn as chairman was irregular and void, and that the organization perfected by the other faction was the only valid organization, and therefore the only “regularly called convention” whose nominee the law permits to have a place upon the ballot. Political conventions are deliberative bodies, supposed to be made up of representatives of a political party, who assemble at the appointed time and place for the purpose of holding the convention. The delegates usually come armed with something in the nature of credentials which tend to show that they are there by authority; and it has usually been supposed that the assembly itself passes upon the authenticity and sufficiency of such credentials, and it has been quite common for conventions to admit bystanders from an unrepresented district to seats as representatives of tbeir locality, although without other authority. While it has doubtless been the common practice for chairmen of political committees to use the gavel to procure order and silence, to read the call, and then to ask the assembly its further will or pleasure, and put motions until a temporary chairman is chosen, we have not understood it to be the province of the chairman to do more, or so much even, if against the will of the assembly. Certainly, we know of no rule of law authorizing it. The assembly is a law unto itself, and has uniformly been the judge of the qualification of its own members, and its decision final.
The contention of the relator seems to be based upon the assumption that the assembly cannot be trusted to faithfully discharge the duty of sifting out the disqualified, and that for that reason there must be some outside authority which shall have power to determine what individual members of the assembly are prima facie authorized delegates, and what are not, to the end that the convention shall be legally organized; and the claim that party custom has conferred that power upon the committee. It is said that outsiders may capture the convention under any other rule, or that enough contesting delegates may be sent to control the assembly, thus frustrating the will and thwarting the intentions of the constituency. To this the opposition retorts that the relator’s theory is a still better scheme for perpetrating fraud and thwarting the popular will, placing it within the power of a majority of a committee to recognize the partisans of a particular candidate to an extent sufficient to control the organization and the seating of delegates, thereby making his nomination sure and the convention a farce. These difficulties do not now present themselves for the first time. From our earliest recollection party politics has always been a matter of shrewdness and management, not always defensible; yet the people have been left to deal with the difficulties as they arise. It is not to be supposed that com mittees on credentials, however fairly selected, have always dealt justly; and, no doubt, expediency or political exigency has governed their action, to the exclusion of abstract justice. The remedy has usually been either a bolt on the part of the dissatisfied, and the selection of an opposition candidate within the party, or a refusal by the electors to support the nominee; and the courts have been careful not to interfere with the application of these remedies, which have usually been found adequate.
Nothing is more certain than that, when this assembly met, it constituted what the law calls “a regularly called convention; ” and, had there been no split, the right of its nominee to a place upon the ticket could not have been successfully questioned upon the ground that it was organized upon the motion of Hambitzer, instead of under the leadership of Newett. But it did split; and we must do one of two things, viz.: Either follow the precedents, and say that we will not decide between the rival factions, or ourselves decide who were the lawfully elected delegates to the convention. To do this, we might be called upon to investigate every ward or township caucus and county convention, held in the two disputed counties, and, had either side asked it, throughout the district. We have intimated that the assembly is the judge of the qualification of its members; and that back of its decision we cannot go. ’ Its presiding officer is its creature, and it must protect itself. In turn, its voters must protect themselves against fraud upon their convention or misconduct of its delegates, officers, and candidates; and when a considerable faction of a convention leaves the meeting, and nominates a ticket, claiming to be the representative of the party which called the. convention, it is not the province of the courts to determine* upon technical grounds that it is not, and that its action is void, and deny it a place upon the ballot, thereby defeating the purification of methods within the party, or to say which faction was right and which wrong. It is a right of the voter to repudiate wrong and corruption and fraud, if it exists, and to pre vent, or unearth and defeat, corruption, and he should not be hampered by technical rules. If in this case this convéntion was unable to conclude its business in harmony, and the delegates divided and made two nominations, they should not be denied the privilege of going to the polls with both. Each nominee is here contending that he represents the only pure republicanism of the district, and is the lawful nominee of the true party. The electors must decide between them. In such case we know of no way of determining which of these names ought of right to go upon the Republican ticket. If it were left to the voters, there would doubtless be an honest difference of opinion upon the merits of the question. • The same may be true of the boards. They may not know what they should do, and we cannot tell them further than to say that, under the admitted facts and the precedents, both' are entitled to places upon the ballot.
It has been held in this State that, where rival factions of' a regularly called convention of a party nominate and certify different tickets, the election commissioners have no authority to accept one, to the exclusion of the other; and it was held, further, that, under such circumstances, both tickets should be printed upon the ballots; and it was said in that connection that the name of the party as certified should be placed above the ticket, without further addition or distinctive designation than such as was contained in the certificates furnished. See Shields v. Jacob, 88 Mich. 164 (13 L. R. A. 160). That case arose under Act No. 190, Pub. Acts 1891, which provided for what is ordinarily called an “Australian Ballot,” requiring the adoption of a vignette by each party, under which the party ticket was required to be printed.
A similar question arose in Colorado the next year, under a law of like character, which provided that the officer with whom the certificate was filed should pass upon objections seasonably filed. At a convention regularly called, a disagreement arose, which resulted in a division and two tickets; each faction claiming to repre sent the party, and each filing the certificate provided for by the statute. It was claimed that the secretary of state had authority to determine, which ticket was entitled to a place upon the ballot; but the court held otherwise. It was said that his power extended only to the correction of informalities. The court said :•
“As to what were the duties of the secretary of state under the circumstances of this case is still, however, to be decided. Here we have to deal with two conventions, each claiming the right to represent the same political party. The act itself will be searched in vain for any provision for such a contingency. It was not contemplated by the legislature, and therefore not provided for. It should not be a matter of surprise that the act as originally passed is not perfect in all particulars. The beneficent laws of the world have grown with time, as the result of experiment and amendment. There being no provision in the act for a condition such as we have presented in this case, some have reached the conclusion, upon reading section 3 of the act [Sess. Laws 1891, p. 143 ], that the secretary of state could only certify one ticket as the ticket of the Democratic party, and that, therefore, of necessity, the duty devolved upon him of determining which of these conventions was entitled to speak for the Democratic party of the State of Colorado. Certainly a court would be doing violence to the intelligence of any legislative body to assume that it was intended that such a question could be determined within 48 hours from the time objections were filed. The validity of the organization and acts of each convention is embraced in the controversy, the determination thereof involving party usages, party practices, and party principles, necessitating, perhaps, the taking of evidence of witnesses living at widely separated points. The section of the act under which it has been claimed the duty devolves upon the secretary of state to determine which convention is entitled to represent the Democratic party applies to county, city, and town clerks equally as well as to the state officer. It is as follows:
‘“Seo. 3. Any convention of delegates of a political party which, presented candidates at the last preceding election, held for the purpose of making nominations to public offices, and also voters to the number hereinafter specified, may nominate candidates for public offices to be filled by election within this State. A convention, within the meaning of this act, is an organized assemblage of voters or delegates representing a political party which, at the last election before the holding of such convention, polled at least ten per centum of the entire vote cast in the State, county, or other political division or district for which the nomination may be made. A committee appointed by any such, convention may also make nominations to public office when authorized to do so by resolution duly passed by the convention at which such committee was appointed. ’
“The argument upon this section is that, to entitle the convention of any party to nominate candidates for public offices, such party must have polled at least ten per centum of the entire vote cast in the State at the last preceding election, and that only one set of nominations can be filed by a single political party. That the argument has force will be admitted. It is quite probable the legislature had in contemplation the nomination of one ticket only by a political party, as the statute makes no provision for the condition with which we are confronted. In this case we have two certificates of nomination, each in apparent conformity with the law. As we have shown, the secretary of state is not empowered to decide as between these certificates. Therefore it is his duty to certify both tickets to the county clerks, in order that both may be printed upon the official ballots. By pursuing this course, the merits of the opposing candidates will be submitted to the people, the tribunal under our system of government that must ultimately pass upon such questions. The conclusion that the secretary of state should, under the circumstances, certify both sets of nominations to the county clerks, to be printed upon the official ballots, is in harmony with the rule of construction which requires the courts, in cases of doubt between two constructions, to follow that which will afford the citizen the greater liberty in casting his ballot. This is in accordance with the previous decisions of this court. In the case of Kellogg v. Hickman, 12 Colo. 256, Mr. Commissioner Stallcup, in an able opinion, which was adopted by this court after careful consideration, held that this should be the policy of- the courts. See, also, Allen v. Glynn, 17 Colo. 338 [15 L. R. A. 743, 31 Am. St. Rep. 304]. The severe penalties provided by the act for the filing of a false certificate of nomination will, we think, furnish a sufficient safeguard against fictitious certificates; if not, the power is in the legislature to provide adequate protection.
“ Little weight should be attached to the argument that the voters may be deceived by having two Democratic tickets in the field. At one time, no doubt, voters were often misled by having names printed under certain designated headings that did not properly belong thereunder. But this deception was only accomplished by secrecy, and by the lateness of the hour at which such irregular tickets were distributed, usually only upon the day of election. But, under the present law, the danger of deception in the manner indicated is certainly reduced to the minimum. The secretary of state is required to certify these tickets to the county clerks, and the coufity clerks must, in turn, cause the same to be published several days before the election. Thus the fullest opportunity to expose fraud and prevent deception is provided for. In the present instance, different emblems were selected by the two conventions, and this furnishes an additional safeguard against deception.” People v. District Court, 18 Colo. 26.
Phelps v. Piper, 48 Neb. 724 (33 L. B. A. 53), was a case where different conventions, called by different committees, but both claiming to represent one and the same party, held conventions at different times and places; and the question of the right of one ticket to a place on the ballot came before the court of last resort. It was held that both tickets were entitled to places upon the ballot. The court said:
“The relator, by this proceeding, seeks to prevent the certification of the candidates of the Lincoln convention as Democratic candidates. If the action of the secretary of state can be controlled by the court in this manner, it must be because it is his duty in such case to determine, as between two bodies or factions, each claiming to represent a political party entitled to have its candidates’ names placed upon the ballots, which of such bodies or factions, according to the rules and customs of such party, rightfully represents it; and, further, that, when the secretary fails to so adjudicate such question, the court shall determine it, and issue its mandate to the secretary of state accordingly. To our minds neither proposition is tenable. Indeed, we think that the case of State v. Allen, 43 Neb. 651, is conclusive on the first question, at least. It was there held that it is not the province of the secretary of state to determine which, of two rival state conventions of the same party is entitled to recognition as the regular convention ; and, further, that where two factions of a political party nominate candidates, and certify such nominations to the secretary of state in due form of law, the latter will not inquire into the regularity of the convention held by either faction, but will certify to the several county clerks the names of the candidates nominated by each, such practice being in harmony with the rule which requires courts, in case of doubt, to adopt that construction which affords the citizen the greater liberty in casting his ballot. In the case cited, candidates representing the same faction as that represented by the candidates which we will here, for brevity, designate the ‘Mahoney Ticket,’ applied for a mandamus to compel the secretary of state to certify their names as the candidates of the Democratic party, the secretary having refused to do so. The court denied the writ, holding as we have already stated, and, further, that, the record not disclosing that the relators had been nominated by any convention whatever, the secretary of state could not. be required to certify the nominations, because it is his duty to determine, in the case of a certificate filed with him, whether such candidates were in fact nominated by a convention or assemblage of voters or delegates claiming to represent the party; that is, he should satisfy himself of the genuineness of the certificate. But he has no authority, where a convention in good faith, claiming to represent the party, has in fact certified its nominations to him in due form, to refuse to recertify the same to the county clerks. We entertain no doubt of the correctness of the principles announced in that case; and it follows that the court, by a writ of mandamus, cannot compel the secretary of state to perform an act which he has no legal authority to perform. If it was the duty of the secretary to certify both sets of nominations, and if he had no power to determine, between the rival factions, which faction represented the Democratic party, then it seems perfectly clear that the court can neither require him to make such decision, nor can the court itself determine which faction rightfully represents the party, and upon such determination require the secretary to omit from his certificate one set of candidates, which State v. Allen declares it is his duty to include in the certificate.
‘ ‘ The legislature has not provided any means for determining such controversies. Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their will. The voters ultimately must determine every such question. The voters constituting a party are, indeed, the only body who can finally determine between contending factions or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for judicial tribunals, for the courts to undertake in any case to investigate either the government, usages, or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination by an organization which a portion, or perhaps a large majority, of the voters professing allegiance to the particular party believe to be the representatives of its political doctrines and its party government. We doubt even whether the legislature has power to confer upon the courts any such authority. It is certain, however, that the legislature has not undertaken to confer it.”
The case of State v. Johnson, 18 Mont. 556, .arose under a similar statute, and bears a striking resemblance to the present case. The convention was regularly called, but trouble arose when- the secretary of the committee attempted to call the convention to order. In the confusion that ensued, some of the delegates withdrew, and assembled at another place, claiming to act under the regular call. Each faction nominated a full ticket. The question of the respective rights as to places upon the ballot reached the supreme court of Montana, which disposed of the question as follows :
< “The question is simply one of the relative rights of rival factions within the ranks of the regularly elected delegates. Such a contention, under all the facts of the case, it is well to leave to the electors to determine. They cannot well be misled, because the names of the two factions should appear under different heads on the ballot, and each faction will appear but once. At all events, we shall follow the rule laid down in Phelps v. Piper, 48 Neb. 724 [33 L. R. A. 53], and decline to interfere.”
It is observable that all the cases cited deny the authority of the officer or court to determine that the candidate of one or the other of two factions of a party is regularly nominated,.and entitled to a place upon the ballot, where the statute has not expressly or by necessary implication conferred the power. Several of these question the expediency of committing such power to either, and some doubt the power of the legislature to pass such a law. There are several decisions in the State of New York which hold that the courts have authority to pass upon such questions, and determine, between factions of a party, the right to a place upon the ticket. These decisions are not adjudications by the court of last resort, however, and they arise under a statute expressly conferring the power. In the year 1897 a case was decided by the court of appeals (In re Fairchild, 151 N. Y. 359), where it was held that the action of the party authorities — i. e., conventions and committees — should be recognized as of controlling importance. We do not understand from what we are able to gather from the case that it was held that such decision was final or binding upon the court, but that it was proper to follow the determination of the party authorities; but, be that as it may, the important fact that the statute of New York expressly gives the courts jurisdiction in such cases does appear. So, it is not at variance with the other cases cited, except as some of •them doubt the wisdom and others the constitutionality of laws permitting courts to decide one of two rival factions regular. The laws of New York provide that in such a case as the one then under consideration, viz., when two factions claim the same device or name, the secretary of state shall decide such conflicting claims, ‘ ‘ giving preference of device and name to the convention or primary, or committee thereof, recognized by the regularly constituted party authorities.” The constitutionality of such laws does not seem to be questioned in the New York case. The case is interesting, if not important, for its bearing upon the claim made here that the State convention de termined between the rival factions in this case. But we are not disposed to follow it, in the absence of a statute requiring courts to settle these questions. See, also, In re Redmond, (Sup.) 25 N. Y. Supp. 381, and .In re Pollard, Id. 385.
As illustrative of the kind of difficulties which arise when the legislature imposes these duties upon the courts, one of the New York cases may be cited, viz., In re Woodworth, (Sup.) 16 N. Y. Supp. 147. That was not the first time that the matter there litigated was before the courts, as will be seen later. It was a proceeding under a statute to compel a county clerk to print the names of certain parties claiming to be regularly nominated candidates of the Republican party of the county, and its determination involved an adjudication between rival factions (each claiming to be the regular organization) of the regularity of their respective nominations. At the outset the court expressed reluctance, saying:
‘ This simple statement of the nature of the duty imposed is sufficient to indicate that it is one from which any judicial officer would gladly escape, were it possible to do so without disregarding the plain mandate of the lawmaking power of the State.”
Objections were filed to the certificates, and passed upon by the county clerk, and then presented to the court, as the law provided. The court said that the certificates were regular, and that it was therefore necessary to go into extrinsic facts. These disclosed that the county convention split, and, as there were contesting delegations from four towns, which sent delegates enough to control the convention (in view of the fact that the undisputed delegates were evenly divided),it was only possible to determine which faction had a majority by ascertaining which of the contesting delegations were entitled to seats. This the court proceeded to do by investigating the proceedings at the caucuses. For convenience, we call the respective factions “Patterson” and “Mongin.” Each faction had a town committee and a town caucus, and a judicial inquiry was had after the caucuses were called, and the same court decided in favor of the Patterson caucus; but the opinion says: “That fact did not deter the Mongin party from holding the caucus which elected Mon-gin and four others to represent the town of Waterloo in the county convention.” Without discussing the details of the caucuses held in the other three towns, we will come at once to the county convention, and here we find a striking resemblance to this case. The opinion states that—
“Previous to the hour appointed for the convening of the convention, a meeting of the county committee was held. This committee, with a single exception, was composed of persons in sympathy with the Mongin wing of the party; and at the meeting in question it was determined to place upon the roll of delegates the names of the Mongin delegates from the towns of Waterloo, Fayette, and Tyre, while the delegation from the town of Varick was made to consist of 5 Patterson delegates, together with 5 other persons, who made no pretense to an election by any caucus whatever, and each of said delegations was given the privilege of casting one-half a vote. It was further determined that the chairman of the committee should call the convention to order, and declare J. B. H. Mongin, of Waterloo, a pretended delegate, whose title was absolutely without foundation, its chairman. It was also determined that no one should be admitted to the hall unless provided with tickets furnished by the committee, and, to carry this provision into effect, policemen were stationed at the door. As thus constituted, the convention, when it assembled, consisted of 15 Mongin and 15 Patterson delegates whose election was not contested; 10 Mongin delegated from the towns of Waterloo and Fayette, who, as it has been made already to appear, had no right upon the floor of the convention; 5 Mongin delegates with half a vote from the town of Varick, who could not, under any circumstances, make any just claim to an election; and 5 Mongin delegates from the town of Tyre, concerning whose election there was, to say the least, grave doubt.
“The programme thus outlined by the action of the county committee was carried out to the letter, and, when an attempt was made on behalf of the Patterson faction to substitute the name of a delegate whose title to a seat was uncontested for chairman of the convention, the motion was not entertained by the chairman of the county committee. A committee upon contested seats was then appointed, which committee, within half an hour after its appointment, and without affording an opportunity to any one to be heard, reported in favor of seating the delegates placed upon the roll by the county committee. At this point in the proceedings the delegates from the towns of Ovid, Romulus, Yarick, and Junius withdrew from the convention, and organized a separate convention in another place, which was participated in by regularly elected delegates from the towns of Waterloo and Fayette, and also by the Patterson delegates from the town of Tyre; and proceedings were had which resulted in the nomination of persons whose names it is demanded in these proceedings shall be printed upon the official ballot. This body was composed of at least 30 delegates who were duly and fairly elected, while the Johnson Hall convention contained, at most, only 20 whose election, by any stretch of the imagination, can be claimed to be valid. It would seem, therefore, that, within the letter as well as the spirit of the act in question, the former body constituted ‘ an assemblage of voters or delegates representing ’ the Republican party of Seneca county.
“But it is insisted that a political convention is a law unto itself, and that whatever methods it adopts for its own government are conclusive, and cannot be made the subject of judicial inquiry. To a certain extent this contention may be, and doubtless is, true. It certainly was presented with the most consummate force and ability by one whose experience in and knowledge of such matters lends great weight to his opinions. But, where the duty is cast upon courts and judges of determining the regularity and fairness of political methods, those methods must be subjected to the same tests as would those of any other , body of men whose good faith is questioned; and no court or judge would be justified in sustaining them when found to be inconsistent with that degree of sound morals which must characterize an ordinary affair of business, even though they be recognized and approved by senatorial and state conventions of the same political organizations. The trend of public opinion, as well as of legislation, at the present time, appears to be in favor of a radical reform in our political methods; and it is the plain duty of all good citizens, and especially those clothed with judicial authority, to encourage such a sentiment with all the force they can command.”
In short, the court assumed to determine who were the lawful delegates, and held that the faction having the largest number of such delegates was entitled to a place upon the ticket, irrespective of the regularity or irregularity of the organization or action of the convention, upon the assumption, we suppose, that it was a deliberative body only in name, whose delegates would blindly vote for the candidate favored, without deliberate consideration of merits.
But the case did not end here. It came again before the same court, and we quote from the opinion:
“The controversy which has resulted in this application^ is one which arose in the year 1891, between conflicting" factions of the Republican party in Seneca county, each of which claimed to be regular in its organization. At the time mentioned, a proceeding similar to this was instituted for the purpose of obtaining a judicial determination of the matter; and, after a careful examination of the papers submitted, I found myself constrained to decide in favor of that element in the party known as the ‘ Patterson Faction,’ and my reasons therefor were stated in an opinion which was designed to cover all the facts of the case. In re Woodworth, (Sup.) 16 N. Y. Supp. 147. This decision was subsequently affirmed by the general term (64 Hun, 522), and the following year was approved by my learned associate, Mr. Justice Bradley. Notwithstanding these several adjudications, every state convention, and every judicial, congressional, and senatorial convention of the district in which Seneca county is located, which has been held since they were rendered, has seen fit to ignore the same,, and to recognize the opposing or Mon-gin faction as the only lawful representative of the party. The Patterson delegates have been refused admission to all of these conventions to which delegates were sent, while those of the Mongin faction were received into full fellowship, and the county committee of that faction has been made the custodian of such funds and documents as were distributed by the state committee. This being the situation, I am again asked to determine the question of regu larity upon facts which, other than as above stated, are precisely the same as those which existed at the time the first adjudication was had. The proposition, therefore, which presents itself, is simply this: Shall the precedent which has been established by courts and judges, or that which has been established by political conventions, be followed ?
“ When this controversy first required a judicial determination, it became necessary to decide it upon such facts as were established by affidavits, unaided by the action of any convention of the party; and, as those facts'were thus made to‘appear, I had no difficulty in reaching the conclusion before mentioned. I am still satisfied that such conclusion was justified, and should now adopt it without hesitation, were it not for the fact that a different one has been so uniformly reached by the party conventions. In determining a question similar to this which arose in Monroe county (In re Redmond, 25 N. Y. Supp. 381), where the question of regularity had been passed upon by the state convention of the Democratic party, I have just held that the action of that body must be regarded as conclusive; and I see no reason why the same rule should not obtain in this case. The only difference is that here the state organization did not pass upon the question until after it had been determined judicially; but, nevertheless, both factions submitted their claims to that body and, for the reason stated in the opinion in the Redmond Case, I think the defeated party must now acquiesce in its decision. I am aware that this view is at variance with the one expressed by me upon the former hearing, and it likewise appears to be in conflict with that entertained by Mr. Justice Bradley in his opinion in this same matter; but, so far as any contrary view appears in my own opinion, it will be found to be merely the expression of an opinion which was not called for by the facts of the case, and it is one which, upon more deliberate reflection, I am disposed to modify. The conflict between the views here expressed and those of Mr. Justice Bradley is more apparent than real, inasmuch as it now appears that, since his decision was made, the regularity of the Mon gin faction has been passed upon by several additional conventions, and that the opposing faction has so far acquiesced in their decisions as to omit in more than one instance to make any further demand for recognition.
“I still think, as already stated, that the title to regularity of the Patterson faction was pretty clearly estab lished upon the original hearing, and that it would, in view of the provision of the statute which authorizes this proceeding, have been no more than courteous for the party conventions to have adopted the decision of the general term, which was deliberately made, after a careful and impartial hearing; but there is no way in which they can be compelled to do so, and consequently it seems to me that the only rule for courts and judges to adopt in this and all similar contests is that they will interfere only in cases where there has been no adjudication of the question of regularity by some division of the party which is conceded to be superior in point of authority to the one in which the contention arose, provided, of course, that the question of good faith in the making of such adjudication is not involved. The adoption of a different rule would inevitably tend to bring party organizations and the courts into unseemly conflicts over questions which are peculiarly within the cognizance of the former tribunals, — a result which most certainly ought, if possible, to be avoided.” In re Pollard, 25 N. Y. Supp.' 385.
Thus, it will be seen that Mongin and politics triumphed over the judicially determined rights of Patterson. A more unseemly and humiliating chapter is not to be found in the history of jurisprudence in this country, and it is all due to the misguided attempt to impose upon the court the duty of presiding over political conventions and caucuses through the medium of actions or proceedings at law, unfitted for the purpose. In the Case of Fairchild, 151 N. Y. 859, the matter was not disposed of until after the election, and therefore, when heard and decided, involved only a question of costs.
In the case before us, had issue been joined, and the case sent down for trial of the facts, it is not improbable that it would be still dragging along when the term of office for which the parties are candidates shall have expired.
We have seen that this court held in the Shields Case that the tickets of both factions were entitled to places upon the ballot. The same is true in this case, unless we can find a change in the law forbidding it, and requiring us to determine which ticket is entitled to the place.
Another case where two factions resulted from a regularly called convention is that of Beck v. Wayne Co. Election Com’rs, 103 Mich. 192. The application prayed that the respondents be required to rescind their action in placing the name of Joseph R. McLaughlin upon the ballot as candidate for senator, and to place thereon, the name of Robert Y. Ogg. The application was denied. The court discussed several subjects bearing upon the question which faction had a majority of the delegates, and held that the convention was regularly called, and that, after the retirement of the supporters of Mr. Ogg, a majority of the delegates elect remained, constituting a valid convention, and nominated McLaughlin. The court was able to say this from the undisputed facts upon the record. It might also have denied the writ upon the authority of Shields v. Jacob, both cases having arisen under the same law. This case does not discuss Shields v. Jacob, and cannot be said to overrule that case, or even cast doubt upon its correctness, unless it is to be implied from the disposition of the case upon other grounds.
The next case that received the attention of this court was Baker v. Wayne Co. Election Com’rs, 110 Mich. 635. That was not a case where rival factions asserted an exclusive right to a place upon the ballot, but was a controversy over the question of the order in which the tickets should be placed thereon. The crucial question in the case was whether the party represented by the relator, known as the Democratic People’s Union Silver party, was entitled to be printed in the second column as the representative of the Democratic party of the previous election. It was conceded upon all hands that, if it was such representative, it was entitled to second place. The facts upon which the case turned were undisputed, and the question was one of law. The application was denied. Some language in the opinion is thought to have a bearing upon the question before us, and is cited in support of the claim that we have recognized the authority, if not duty, of the commissioners and courts to determine the questions of fact upon which the order of tickets upon the ballot depends, and that they must therefore decide all questions of regularity. It is as follows:
“The reluctance of the courts to enter upon an inquiry, or to permit an inquiry by the election commissioners, into the question of fact as to which of two contending factions truly represents a political party, has been manifested in various cases. State v. Allen, 43 Neb. 651; Phelps v. Piper, 48 Neb. 724 [33 L. R. A. 53]; Shields v. Jacob, 88 Mich. 164' [13 L. R. A. 760]. In Shields v. Jacob it was held that the court would not undertake to determine which of two rival conventions, resulting from a split in a regularly called convention, should be treated as the regular convention of the party; and a mandamus was issued requiring the election commissioners to give to both tickets a place upon the ballot. At the time that decision was rendered, however, the provision requiring that the ticket of the party having the greatest number of votes within the county at the last preceding election should be placed first upon the ballot, and that the position of other tickets should be governed relatively by the same rule, was not a part of the statute, and it was not necessary to determine which of these tickets should be placed first on the ballot. Under the law as it now exists, such an investigation seems necessary, and it would seem that the commissioners did determine the question, and place the Shelby ticket second on the ballot.”
Two questions were involved in the determination in that case: First, the identity of the parties; and, second, their previous votes as compared with those of others. About neither of these is there much opportunity for dispute over the facts, and little danger in leaving the subject to the election boards. In that case it was stated that the facts -were not in controversy.
We are not dealing with a case in which a candidate has been nominated in a regularly called convention, by a majority of the delegates regularly elected, and admittedly entitled to seats in the convention, or shown by the undisputable evidence to be entitled to seats therein, as was the case in Beck v. Wayne Co. Flection Com’rs, 103 Mich. 192. In such a case the question presented may be a mere question of law, and the candidate regularly nominated entitled to a place on the party ticket, to the exclusion of one who may have been nominated by the refractory minority.
It is urged that the statute assigning certain places upon the ballot gives rights to candidates which may be enforced by the court, and that, if the courts may determine the status of parties, they may also determine‘between factions of one party; and the effect of this contention, if sustained, would be to open up the entire field, and make it incumbent upon courts to investigate the regularity, not only of" conventions, but caucuses and primaries as well. We think there is a marked- distinction between determining the places to be given to two'different tickets upon the ballot, and denying to a faction of a party any place whatever. If this claim does not ascribe undue weight to the alleged rights of the candidate, and too little to public interests, it is at least true that judicial methods are too slow, and are inadequate to effectively and justly settle the questions which arise from political contests. Among the dangers that courts should guard against is the unwarranted assumption of power under the false impression that they, and they only, can right all of the wrongs which arise from the conduct of public affairs. They have only such powers and authority as the Constitution and the laws confer upon them. We have seen that several courts have held that not until the intention of the legislature is clearly manifested will they undertake' to control political action. We have held in the Baker Case that it was the province of the court to decide the status of political parties upon admitted facts; but we think it does not follow that it was intended that we should go further, and settle all political controversies. Under the law as expounded in the case of Shields v. Jacob, the commissioners had no authority to decide between these two factions. It was, their duty to print both upon the ballot.
It may be said that under the law of 1895 (Act No. 17, Pub. Acts 1895, § 10), providing that “it shall be unlawful for said board of election commissioners to cause to. be' printed in more than one column on the ballot the name of any candidate who shall have received the nomination by two or more parties or political organizations for the same office,” one or the other of the nominees will be at the disadvantage of having his name appear in a column by itself, as in the Todd Case. Todd v. Kalamazoo Co. Election Com’rs, 104 Mich. 485 (29 L. R. A. 330). We think, however, that the public good requires the private inconvenience; and we cannot hold, in the absence of a statute requiring it, that the nominee may stickle for a comparatively unimportant right, to the general public inconvenience to result from his pursuit of an unauthorized remedy of doubtful efficacy and expediency.
It may be asked which of these nominees should be subjected to this disadvantage. Manifestly, we have no means of determining this question, nor can we lay down the rule for such a case as this further than to say that their names should appear in adjoining columns.
It is therefore ordered that the several respondents give to the names of the nominees adjoining columns, said respondents themselves determining which shall be placed upon the general ticket of the Eepublican party, the other to be in a separate column under the party name and vignette; the full ticket to be placed first upon the ballot. No costs will be allowed-
The other Justices concurred, | [
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Long, J.
Plaintiff entered into a written contract with the defendant to teach the school of the district. The contract is as follows:
“ It is hereby agreed by and between school district No. 4 in the township of Bridgeport, county of Saginaw, State of Michigan, and Miss Hannah O’Leary, a legally qualified teacher, that said teacher is to teach, govern, and conduct the pupils of the public school of said district to the best of her ability; keep a register of the daily attendance and studies of each pupil belonging to the school, and such other records as the district board may require;make the report required by law; and endeavor to preserve in good condition and order the school-house, grounds, furniture, apparatus, and such other district property as may come under the immediate supervision of said teacher, — for a term of three school months, com mencing on the 21st day of September, A. D. 189G, for the sum of twenty-six dollars per school month, to be paid at the end of each month; and the said school district hereby agrees to give her a contract for the remaining five months of the school year if she gives satisfaction; and the said school district hereby agrees to keep the school-house in repair, to provide the necessary fuel and school register, and for the services of said teacher as prescribed above, well and duly performed, to pay said teacher the sum of twenty-six dollars per school month, at the end of each month, during a term of three months, commencing on the 21st day of September, 1896: Provided, that in case said teacher shall be legally dismissed from school, or shall have her certificate legally annulled by expiration or otherwise, then said.teacher shall not be entitled to compensation from and after such dismissal or annullment: Provided, further, that the wages of said teacher for the last month of the school term shall not be paid unless said teacher shall have made the report for the school term as required by law.”
At the time this contract was made, plaintiff held a third-grade certificate from the board of school examiners, which expired on March 28, 1897. She taught the school for the three months commencing September 21, 1896. At the end of that time the board hired another teacher, and advised plaintiff that her services were no longer required. This action was brought to recover what the plaintiff claims is her due under the contract. On the trial the court directed the jury that the contract was for eight months, and, if the board acted in bad faith in discharging her, she might recover for such part of the additional five months as would terminate on March 28, 1897, her certificate expiring at that time, and that she could not recover for services after that time.- The jury found a verdict in her favor, and defendant brings error.
The court was in error in construing the contract as one for eight months. The most that can be said of it is that it was a contract for three months, with an agreement that at the end of that time the board would “give her a contract for the remaining five months of the school year if she gives satisfaction.” At the end of the three months she was not a legally qualified teacher for the full five months thereafter, as her certificate extended only about three months thereafter. The school law provides that:
“No person shall be considered a qualified teacher within the meaning of this act, nor shall any school officer employ or contract with any person to teach in any of the public schools under the provisions of this act, who has not a certificate in force, granted by the board of school examiners or other lawful authority.” Act No. 147, Pub. Acts 1891, § 5, as amended by Act No. 34, Pub. Acts 1893, and Act No. 66, Pub. Acts 1895.
It appeared upon the trial that the board refused to enter into the five-months contract for the reason that the plaintiff had no certificate to teach that length of time. It is therefore evident that she was in no position to compel such action, and the court was in error in leaving the question of the motive of the board in discharging plaintiff to'' the jury. She had no contract for the five months, and was in no position to make one for that length of time. When the court directed- the jury that she might recover for that part of the five months ending March 28, 1897, he was making a new contract between the parties; that is, a contract for three months instead of five. There was • nothing in the case which warranted this. If the board was bound at all, it was to enter into a contract for five months. The plaintiff could not make such a contract, as she did not possess the necessary qualification therefor. The board was therefore released from - any obligations under this contract, even though it could have been enforced if the plaintiff had been qualified to make it, — a point which it is not necessary to determine here.
The judgment below must be set aside. No new trial will be awarded.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). We pointed out in Kneeland v. Wood, 117 Mich. 174, the two remedies provided by the statute in case of payment, or where the owner has been misled by the statement of the col lector. That was an action of ejectment, and we held that a collateral attack upon a decree rendered in a tax suit cduld not be made, but that the owner must resort to one of these two remedies. If he could not make a collateral attack at law, for the same reason he cannot make it in equity. Defendant should have availed himself of one of the above remedies.
Instead of resorting to the action of ejectment, complainants have chosen to go into a court of equity. It is the province of that court to protect the rights of all parties, and do justice between them, when it can be done. It is not only inequitable, but unjust, that a person should lose his land when he has made an honest effort to pay the tax, and has been misled by the statement of the officer, on which he had the right to rely. The law does not contemplate such a result. The case of Kneeland v. Wood had not been decided when this suit was heard. Undoubtedly counsel advised that the defense could be made in this suit. We think it equitable and just that the defendant should be giveh an opportunity to avail himself of either of the above remedies, should he see fit to do so.
The decree will therefore be reversed, and the case remanded, and 90 days given to the defendant within which to avail himself of the statute. The complainants will recover the costs of both courts.
The other Justices concurred. | [
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Long, J.
Respondent was convicted in the superior court of Grand Rapids of an assault upon one Frank Daley, with intent to do him great bodily harm less than the crime of murder. The information was filed under section 9122a, 2 How. Stat. It appears that the respondent was convicted of a misdemeanor under a former complaint made by Daley, the complaining witness in the present case. That case came to this court, and was affirmed. City of Grand Rapids v. Williams, 112 Mich. 247. The case being remanded with directions to proceed to judgment, Williams was sentenced to 90 days’ imprisonment in the county jail, his term expiring about July 1, 1897.
The testimony in the present case introduced by the prosecution shows that, on the 4th of August following his release, respondent was fishing in Grand River from a footbridge, when Daley, in company with a Mr. Bennett, crossed the bridge. Daley passed the respondent some feet, and stopped to talk with a Mr. Ten Hopen. After some conversation, Daley asked Ten Hopen, “What are they fishing with, — worms?” At this respondent said, “Who are you talking to, — me?” Daley responded, “No; to this gentleman.” Respondent then said, “I thought you would have a lot of gall to speak to me;” adding some profane words. Daley responded, “I am not talking to you,” and started to go away, when respondent ran up behind him, knocked him down, and kicked him eight or ten times on the head. Mr. Bennett started to separate them, when respondent took out a knife, and struck at him, and said, “ I will stick this into you.” Bennett retreated, when respondent again knocked Daley down, and again kicked him. Daley finally got up, and started to run across the bridge, but was followed up by respondent, who overtook him, knocked him down again, kicked him, at the same time striking at him with a knife, and cutting a gash in his finger three-fourths of an inch in length, and saying to him, “You made me serve 90 days in jail, and I will cut your-white heart out.” Mr. Bennett then called others who were passing by to come and help him, when the respondent turned, and ran back across tho bridge. On his return across the bridge,' he stated to a Mr. Moon that he would kill Daley if he had to follow him to his house to do it. Daley was badly injured, and confined to his house for some two weeks or more.
The respondent was called as a witness in his own behalf. His testimony does not vary materially from the other witnesses as to what occurred, though he denies having used the knife on Daley. He does admit, however, that he drew it on Bennett, and that he knocked Daley down, and kicked him, as described by the witnesses for the prosecution. Under his own testimony, the jury might properly have found the respondent guilty of the offense charged.
Six errors are assigned by counsel for respondent:
1. A continuance was asked by respondent, for the reason that Mr. Bennett, one of the jurors for that term of court, was one of the res gestee witnesses for the prosecution, his name being indorsed on the information. This was denied. It appears that Mr. Bennett was on the bridge, and present at the time of the assault by respondent. The jurors, when called upon the panel, were fully examined, and were each shown to be qualified to sit. They were asked about their acquaintance with Mr. Bennett. Some of them had no acquaintance whatever with him, and those who knew him stated that such acquaintance would in no wise bias their minds. The mere fact that Bennett was returned as a juror for the term did not prejudice the rights of the respondent, though Bennett was one of the witnesses to be called in the case. If continuances are to be granted because some of the juroi'S are acquainted with the witnesses for the prosecution, it would be difficult to bring criminal cases on for trial at any term. There is no such rule as contended for. The matter of continuance rested in the discretion of the court, and there was no abuse of it here.
2. The trial of the cause was commenced on January 17, 1898. It appears that on January 10th the prosecuting attorney indorsed the names of two witnesses on the information. Before doing so, he called one of the counsel for the respondent to the rooms of the judge of the court, and stated to him that he proposed to so indorse the , names. Counsel made no objection at the time, but thereafter, on consultation with the other counsel, objection was made, and the court was asked to strike these witnesses’ names from the information. This was refused. Section 9549, 2 How. Stat., provides that the prosecuting attorney shall indorse on all informations the names of1 the witnesses known to him at the time of filing the same; and, at súch time before the trial of any case as the court may by rule or otherwise prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him. We think the statute was complied with. The names were indorsed seven days before the trial commenced. It is true that no affidavit was-filed showing the time when the prosecuting attorney became cognizant of the fact that such witnesses were material for the prosecution; but, when their names were indorsed, counsel for respondent made no objection. The names could have been indorsed after the trial commenced, without the showing, if consented to by counsel for respondent. The court very properly refused to strike them off. People v. Howes, 81 Mich. 396.
3. During the trial, the respondent asked to have the name of one Dora Gardner indorsed on the information. This the court z’efused, and exception was taken. On motion for new trial, the same point was pressed, and the court said, in refusing the new trial:
“The prosecuting attorney stated that he had no knowledge of any such person as Dora Gardner being present, and that he had several witnesses who swore that no such woman, nor any woman, was present at the time of the assault, and the court doubts of .her being there at all. This Dora Gardner was used originally to try to get this case over the term, and finally, failing in this, she was used as a witness for respondent by deposition, which could not have been if she had been the people’s witness, so that the fact that her name was not on the information redounded to the respondent’s advantage.”
In addition to this, it appears from the testimony of Dora Gardner that all she saw was that respondent struck Daley, when she ran away from the scene. Under the circumstances, the respondent was not prejudiced by the prosecution’s failure to indorse the name of this witness on the information.
4. It is claimed that the court was in error in not sustaining the challenge for cause made against the jurors John Muir and Cornelius Kelley. It appears that the case of People against Eliza Conway was tried in that court a. few days before the case against respondent was called. Eliza Conway was charged in that case with keeping a house of ill fame. It was shown that respondent and Dora Gardner boarded at the Conway house. The above-named jurors were on the panel for the trial of the Conway case, and testimony was given on that trial as to the character of the house kept. These jurors were asked in the present trial whether they had any opinion, bias, or prejudice .at all on the question of the guilt or innocence of the respondent on the charge he was being tried upon, or any prejudice against him that would in any way affect his credit upon the stand as a witness. They answered, “Not in the least.” The court, in its sound discretion, overruled the motion to reject these jurors for cause. It was said in the case of People v. Thacker, 108 Mich. 654:
“It has been repeatedly held in this State; and may be regarded as the well-settled law, that one is not disqualified from serving as a juror, simply because he has heard and read about the case, and has formed an impression based upon what he has heard and read, if the impression is not of that fixed character which repels the presumption of innocence.”
And in People v. Barker, 60 Mich. 287 (1 Am. St. Rep. 501), it was said:
“The opinion entertained by a juror which disqualifies him is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and in whose mind the accused stands condemned already.”
In the present case the jurors had no fixed opinion whatever, and, in fact, stated they had no bias or prejudice against respondent. The mere fact that they sat in another case, in which another party was charged with immorality, and that the respondent was an inmate in that house, did not disqualify them to sit in the present case. It was not error to overrule the motion to discharge for cause.
5. Counsel tor respondent substantially asked the court to charge the jury that, if they found that respondent was acting in self-defense, they must acquit. There was no testimony in the case which would warrant such a charge; and, as we have before stated, the jury might properly have convicted the respondent upon his own testimony.
This, in effect, covers the remaining assignment of error.
We find no error in the case, and the conviction must be affirmed.
The other Justices concurred. | [
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MOORE, J.
The Hecla Company is in process of dissolution, and is in the hands of a receiver. The city of Detroit, on September 14, 1914, filed a claim for $50.22 for general city taxes for the year 1914, assessed on the personal property of said company, accompanied by a petition, praying that the court make an order directing the receiver to pay said taxes. The receiver filed an answer, stating said taxes were assessed on $2,500 in money deposited in banks without deducting the amount of the debts of said company from the amount of said deposits, and that said assessment was illegal and void. Proofs taken in open court showed that said company filed with' the board of assessors a personal tax statement for the year 1914, in which was listed $2,500 'in money deposited in banks, the only personal property of said company subject to taxation. The tax statement also contained a list of the debts due or to become due from said company, which debts more than equaled the amount of money deposited in the banks. The court denied the petition for an order directing the receiver to pay said taxes. The city of Detroit has appealed to this court from the order.
The claim of the city is:
“There is nothing in section 3832 of our statute that especially exempts money deposited in a bank from taxation. Money is tangible personal property, as much so as any other class of personal property enumerated for taxation purposes in section 3831 of the statute. It was not the intention of the legislature in classifying personal property for taxation purposes, as provided for by said section 3831, to permit the moneys of the taxpayer, although deposited in a bank, to be set off by his debts in assessing taxes against him” (citing several cases).
The case requires the construction of certain portions of sections 3832 and 3842,1 Comp. Laws, sections 1777 and 1787, 1 How. Stat. (2d Ed.). The provision of section 1777, important here, reads:
“The following personal property shall be exempt from taxation, to wit: * * * So much of the debts due or to become due as shall equal the amount of the bona- fide and unconditional debts by the person owing.”
Section 1787 provides for the blank forms to be used by the assessing officer. Under the heading “Personal Property Credits” appears the following:
2. “All credits of every kind owing to such person, * * * including' all deposits in banks.”
As long ago as in 1875, Justice Campbell, speaking for this court, said:
“It is well settled that in the case of all but special deposits the money deposited becomes the property of the banker, and he becomes the debtor of the depositor.” Perley v. Muskegon, 32 Mich. 132, 20 Am. Rep. 637.
To the same effect are Davis v. Bank, 53 Mich. 163 (18 N. W. 629); Neely v. Rood, 54 Mich. 134 (19 N. W. 920, 52 Am. Rep. 802); Grammel v. Carmer, 55 Mich. 201 (21 N. W. 418, 54 Am. Rep. 363); People v. Wadsworth, 63 Mich. 500 (30 N. W. 99); and Stumpf v. Storz, 156 Mich. 228 (120 N. W. 618, 23 L. R. A. [N. S.] 152, 132 Am. St. Rep. 521).
We have examined the cases cited by counsel for appellant, and find them based upon statutory provisions unlike those of our statutes.
The decree is affirmed, with costs.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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] |
Ostrander, J.
(after stating the facts). “Nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage,” is the language of the statute. 3 Comp. Laws, § 10213 (5 How. Stat. [2d Ed.] § 12857).. Objection was not made to the giving of testimony upon this ground, but the objection was that the communication was not in the presence of defendant. The statute evidences a rule of public policy; the privilege being the privilege of the spouse making the communication, the lips of both being sealed, unless both, otherwise, personally consent. The wife is not here objecting to the failure to observe the rule.
The husband’s consent will be presumed, since he testified to the communications. I think it must be said that the wife, also, personally consented. She was living apart from her husband, and in another State, when the action was begun. It appears that whether she would or would not consent to return to this State to give her testimony was a subject which interested both parties to the suit. At the time of the trial she was living with her husband in Milwaukee, Wis.. She attended the trial, and it will be presumed that she knew the nature of the accusations made in her husband’s declaration. In substance and effect her testimony, given with the express consent of her husband, does not differ greatly from that which was given by him concerning their relations, how they were affected by her conduct, and what she said to him. Her consent would therefore be evident, if the record were amended, as desired by appellant. Therefore the motion to amend will be denied.
As to the objections based upon the fact that the defendant was not present when the statements were made, they are overruled upon the authority of Perry v. Lovejoy, 49 Mich. 529 (14 N. W. 485); McKenzie v. Lautenschlager, 113 Mich. 171 (71 N. W. 489). The testimony was introduced to prove the state of the wife’s feelings towards her husband.
2. It is plain that, however willing he may be to do so, a husband should not be permitted to recover damages for the carnal debauching of his wife by another without tendering the issue of criminal conversation and being bound by the rules of evidence which apply to the trial of the issue. The distinction between actions for damages for criminal conversation and those for alienation of affections, where such conduct is not charged, is pointed out in Perry v. Lovejoy, supra, 49 Mich., at pages 532, 533 (14 N. W. 485).
It is the contention of appellant, and the principal one, that the plaintiff has in this case made out by his testimony and has had the advantage of the more serious charge, without alleging it and without affording him the opportunity to meet it. The statement of counsel for plaintiff, in the presence of the jury, that plaintiff abandoned the counts charging adultery was calculated, even if it was innocently made, to acquaint the jury with the fact that the more serious charge had been made. They could only have speculated about the reason for withdrawing it, and it is evident that the result of whatever speculation was indulged might have been favorable or unfavorable to defendant, according to the course of reason ing pursued. It is not the purpose of trials of civil actions to invite or encourage such speculation, however it may result. Evil effects of such suggestions, or statements, may be so apparent as to= compel this court to reverse a judgment. I think they are not apparent here, and that, on the contrary, it is improbable that defendant was prejudiced by the statement of counsel.
The testimony offered by plaintiff tended to support the charge contained in the first count of the declaration. None of it should have been rejected upon the ground that it was not competent for this purpose, namely, to prove alienation of affections unaccompanied by criminal conduct. See Merrill v. Leisenring, 149 Mich. 423, 428 (112 N. W. 1072). No error was committed in refusing to reject it, nor in refusing to rule that the husband and wife were not competent to give it.
3. I have examined the other errors assigned and argued. Testimony showing the conduct of defendant after plaintiff’s wife had left him, and after this action was begun, was competent and was material. If the wife is to be believed, she was willing to leave her husband for defendant, relying upon defendant’s promises to take care of her and, finally, to marry her. If she is believed, her purpose in this direction was halted because she believed defendant to be insincere. And while a defendant is in parlous circumstance when a husband and wife unite in such an action as this, I am not satisfied that prejudicial error is made to appear.
The judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
While the claimant was employed by the Fiege Desk Company at Saginaw, operating a certain machine, a piece of emery flew into his left eye and injured it. The emery was removed, but the eye became inflamed and iritis set in. He was totally incapacitated for work for nine weeks, and full compensation therefor was paid to him by respondents. When claimant returned to work, the inflammation and iritis had subsided, and his recovery was complete, save for the fact that the injury left a scar in the center of the cornea, covering the pupil, which causes a blur and prevents him from seeing an object clearly. This condition reduced the vision of his eye nearly one-half, and is permanent, but it is not thought the vision will be further reduced as a result of the injury. Since claimant returned to his work, he has been doing the same work as before the injury, and is receiving the same wages. On this state of facts, the board made a further allowance, and in so doing, said in part:
“That, the usefulness of the left eye of applicant having been destroyed by said injury to the extent of more than one-third, and somewhat less than one-half, the applicant was entitled to an award of 35 weeks’ compensation in addition to the amount theretofore paid, that being the fair and reasonable percentage of the 100 weeks compensation, which the law provides for the full loss of the eye.”
This award is questioned by respondents, and it is argued that there is no authority in the law by which such an award can be justified. If the award is to stand, some authority in the law must be found to support it. It is obvious that it cannot be sustained under Act No. 10, part II, § 9, Pub. Acts 1912 (Extra Session), because claimant is not wholly incapacitated. It must then be sustained, if at all, under section 10, providing for partial incapacity. Section 10 provides that:
“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter,” etc.
There is then added to the section a schedule of specific injuries fixing the number of weeks for which compensation shall be paid. The partial loss of an eye does not appear in the schedule. It deals with nothing less than the loss of one eye. It is therefore clear that no support can be found for the award in the schedule. Under the general power conferred by section 10 upon the board, an award might be made for such an injury on the theory of a future incapacity in other employment, were they not restricted in determining the loss “to his earning capacity in the employment in which he was working at the time of the accident.” Section 11.
Inasmuch as claimant concedes that he can now do his work as well as before the injury, and that he is receiving the same wages therefor, we are unable to see that the board had any authority under the general power granted by section 10 to award claimant any relief. The award made by the board was a very equitable one, and is one which we would prefer to sustain, if we could do so without attempting to amend the law by judicial construction. It appears to be, however, an exigency which the law has not provided for. We think the relief in such cases lies with the legislature, rather than with the courts.
The award must be reversed and set aside.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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] |
Bird, J.
In July, 1911, while Bertha Roddy, a young girl 16% years of age, was employed in plaintiff’s laundry, feeding a mangle, her left hand was drawn against or under the first ironing roll and burned and permanently injured. As plaintiff was indemnified by defendant against- losses on account of accidents to its employees, it was duly notified of the mishap. After making an investigation, the defendant refused to pay the damage, and denied all liability under its policy, on the ground that Bertha had been employed in violation of law, but it tendered the services of its attorneys to plaintiff to assist in making an adjustment of the claim. A settlement was effected for $1,623. To recover this sum from defendant, this suit was begun and successfully prosecuted in the trial court.
The assignment upon which defendant principally relies is based upon the refusal of the trial court to instruct the jury, “as a matter of law, that the operation of the flat work ironer or mangle is an operation considered dangerous to life and limb.” This request is based upon section 11 of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4019), which provides, that no female under the age of 21 years shall be engaged in any employment “which may be considered dangerous to their lives or limbs.” Bertha Roddy was engaged, when injured, in feeding flat goods into the mangle. Between her and the automatic feeder was a wire feeding basket about a foot wide. An automatic feeder was provided which made it unnecessary for her to feed the clothes to the first ironing roll. In front of the first ironing roll was a guard roll to protect the hands from coming in contact with the hot roll. In the event that she permitted her hands to follow the automatic feed too far, the guard roll would warn her. Her duty was to smooth out the goods on the automatic feed table, and they were then automatically carried into the ironing rolls. She claimed her injury was due to some defect in the automatic feeder. It was shown that the machine had been installed ten years, and that this accident was the first one which had occurred. Witnesses who were familiar, with such machinery expressed the opinion upon cross-examination that mangles like the one in question, equipped with like safety devices, were not dangerous machinery.
We are not of the opinion that this machinery was so obviously dangerous to life and limb that we should declare it so, as a matter of law. The question as to whether machinery was dangerous, within the meaning of this statute, has usually been held by this court to be one of fact. Sterling v. Carbide Co., 142 Mich. 284 (105 N. W. 755); Braasch v. Stove Co., 147 Mich. 676 (111 N. W. 197); Braasch v. Stove Co., 153 Mich. 652 (118 N. W. 366, 20 L. R. A. [N. S.] 500; Syneszewski v. Schmidt, 153 Mich. 438 (116 N. W. 1107); Tabinski v. Manufacturing Co., 168 Mich. 392 (134 N. W. 653); Radic v. Jackson & Co., 178 Mich. 618 (146 N. W. 136). The conditions disclosed by this record are not so radically different from those involved in the foregoing cases as to justify us in disposing of the question as one of law.
The defendant, after assuming the risk, made annual inspections of the laundry, and furnished plaintiff with a copy of the record. The last inspection previous to the accident was in March, 1910. The report of this inspection showed, among other things, the following:
“Q. Is there any specially dangerous work connected with the business?
“A. No.
“Q. Are there dangerous points about machinery which are not protected?
“A. No.
“Q. Is the law respecting the employment of minors observed?
“A. Yes.”
This report was offered and received in evidence over defendant’s objection, but it neither appears in the record nor in the briefs what specific objection was made to it. The character of the argument made in opposition thereto would indicate that it was placed upon the ground of incompetency. But, whatever may have been the ground of objection if defendant made a defense which was inconsistent with its previous declarations and admissions, it was proper to show it.
Error is assigned upon the manner in which the court gave defendant’s requests Nos. II, IV, V, VI, and VII. Requests IV and V asked for an instruction directing a verdict because of the unlawful employment. As this question has already been disposed of, no further comment is necessary. Requests II, VI, and VII were fairly covered by the general charge. It is not argued that they were not so covered, but it is argued that the points raised by the requests were not given the prominence that their importance demanded. A careful examination, of the charge with reference to these requests does not so convince us. We think that all three requests were fairly covered by the general charge, and one of them was given more prominence and placed before the jury more pointedly than was suggested by the instruction.
We find no error in the record which calls for a reversal of the case. The judgment of the trial court is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Kuhn, J.
This is an action in assumpsit, brought to recover payment for certain special taxes levied by the plaintiff against the defendant, arising out of the construction of a sewer known as the “Meridian Street Sewer System,” which sewer was adjacent to some of the right of way of the property of the defendant company.
In the year 1909 the plaintiff city, in accordance with the provisions of its charter, proceeded to take steps to levy a special assessment for the construction of this sewer system. Two-thirds of the cost of construction thereof was to be paid by the property owners to be benefited thereby, and was to be levied in five equal annual installments, and the city was to pay the remaining one-third of the cost.
After certain proceedings were had under the charter, and the sewer was constructed and the special assessment levied and placed in the hands of the city treasurer for collection, and some of the taxes had been paid, the defendant company filed a bill in chancery against the city, asserting that the special assess ment was void, and praying the court to grant a perpetual injunction restraining the collection of the assessment. This cause was brought to an issue, and upon a hearing on the 12th day of March. 1910, the chancellor who heard the case decreed:
“That the said tax assessed against the said parcel of land belonging to the said complainant, * * * and the said special assessment roll, and the several proceedings to assess the same, are invalid and void.”
To the bill of complaint filed by the complainant in that cause there were attached three exhibits, known as Exhibits A, B, and C — Exhibit A, dated June 7, 1909, being the first or initial resolution, to initiate the proceedings; Exhibit B, dated June 28, 1909, being the second resolution, the report of the board of public works on the sewer; and Exhibit C, dated July 12, 1909, the third resolution, which fixed the districts, etc. It also appears that on August 23, 1909, a resolution was adopted by the council appointing a board of review. Other proceedings were had which need not be referred to, and the assessment roll was placed in the hands of the city treasurer, who proceeded to collect, and did collect, some of the taxes, as before stated.
After the rendition of the decree in the chancery court, the common council on April 18, 1910, passed a resolution rescinding the resolution adopted by the council on August 23, 1909, appointing a board of review, and all subsequent proceedings in connection with the levy of the special assessment roll, which roll was declared inoperative and void by this rescinding resolution, and the assessments paid were ordered refunded. Thereupon other proceedings were had, and finally a new roll was made, under date of April 29, 1910, by the city assessor, as the charter required, and turned over to the city treasurer for the collection of taxes assessed. Defendant having refused payment, the city thereupon instituted suit against it for four of.the five installments of taxes which had accrued thereunder.
To the plaintiffs declaration, the defendant interposed a plea in abatement, upon which issue was joined and a trial had before the court without a jury. The plea in abatement being overruled, the cause was brought here by a writ of error. At the argument of this cause, the question was raised as to whether or not the order overruling the plea in abatement in the instant case was such a final judgment or determination as to justify removal of this cause to this court by a writ of error under section 10484, 1 Comp. Laws (section 14099, 5 How. Stat. [2d Ed.]).
The attention of the court was called to the case of Paccalona v. Bark & Lumber Co., 171 Mich. 605 (137 N. W. 518), where this practice seems to have been followed, although it does not appear from the opinion therein filed that any question was raised with reference to it,. In the more recent case of Wanner v. Martin, 173 Mich. 503 (139 N. W. 249), the practice here resorted to, however, is condemned, as a more expeditious method of reviewing such rulings is created by Act No. 310, Pub. Acts 1905 (5 How. Stat. [2d Ed.] § 12737). However, as the cause has been argued on its merits, it will in this instance be so considered.
It is the contention of the appellant that the first three resolutions of the common council, which were the initial proceedings in the levying of this special assessment, are of no force and effect, and cannot be used as a part of the proceedings to assess the tax in question, because of the expression in the chancery decree, “the several proceedings to assess the same are invalid and void;” and the plea herein interposed asserts, therefore, that these matters are res adjudieata.
It appears that onp of the reasons assigned in the bill in the chancery case for voiding the first roll is that the city attorney could not sit on the board of review, and it is conceded that he did so act without authority in the city charter, which charter specifically provides who should act on such boards. The decree of the chancery court also declared:
“It appears to the court that the equities are with the complainant as to some of the allegations in said bill contained.”
So that it follows that the chancery court confined the invalid proceedings to some and not all of the allegations of the bill. The decree in terms holds no more than that the tax roll and the proceedings to assess the tax are invalid, in so far as they affect the defendant’s land as it appears on the assessment roll.
We are of the opinion that the language of the decree is not subject to the interpretation given thereto by-counsel for the appellant, who contends that the resolutions of June 7th, 28th, and 29th, especially the primary resolution of June 7th, were directly involved in the injunction suit, and that the language of the decree expressly held that they were void and of no effect. In our opinion the language of the decree, “the several proceedings to assess the same,” must be held to refer to those proceedings undertaken by those charged with the performance of assessing the tax. This court has defined the word “assess” to mean “to set, fix, or charge a certain sum to each taxpayer.” Seymour v. Peters, 67 Mich. 415, 418 (35 N. W. 62, 65). It is clear that under this definition the proceedings to assess would be such proceedings as are taken by the assessor and board of review in accordance with the provisions of the charter. Sections 4 and 6, chap. 21, Act No. 418, Local Acts 1903. The common council, under this charter, did not assess or value the property or have anything to do with the proceedings to assess the tax, as these acts were performed by the other charter officers whose duties are pointed out in the provisions above referred to. It follows, therefore, that the “several proceedings,” which are declared invalid and void in the decree, are not the three resolutions of the council here in question. These proceedings could be regular and valid, and still the proceedings to assess might be invalid and void.
It is said, however, that the initial proceeding was invalid, inasmuch as the initial resolution of June 7, 1909, was void for the reason that it did not declare that the improvement sought to be made was a “public necessity,” but followed the language of the charter of the city and the statute, stating simply that the council “deemed advisable” this sewer; and it is contended that the failure to so declare deprives the council of jurisdiction to proceed, by virtue of the ruling of this court in Hoyt v. City of East Saginaw, 19 Mich. 39 (2 Am. Rep. 76). In that case, however, the charter granted to the city by the legislature of the State required from the common council an express preliminary declaration that they deemed the improvement necessary. Where such a declaration of necessity is required by charter or statute, unquestionably a failure to so declare would make void any proceedings based thereon, as it is jurisdictional. 28 Cyc. p. 978; 25 Am. & Eng. Enc. of Law (2d Ed.), p. 1212. But in the case before us the charter of the city does not require any such declaration, and simply provides that the resolution shall be passed if the council deem it advisable, and it is a general rule of law that it is not requisite that the resolution state that the improvement is necessary, unless the charter or statute expressly provides it, for the reason that, such resolution or ordinance having been enacted by the officers whose duty it is to determine the necessity, it is in itself deemed a sufficient declaration of the fact. See 25 Am. & Eng. Enc. of Law (2d Ed.), p. 1212; Page and Jones on Taxation and Assessment, § 832, and cases cited.
In the case of Bay City Traction Co. v. City of Bay City, 155 Mich. 393, at page 402 (119 N. W. 440), the language of the charter provision involved required simply that the aldermen shall by resolution declare that the improvement is expedient. In the case of Crawford v. City of Detroit, 169 Mich. 293 (135 N. W. 314), it is held that the failure of the council to pass a resolution declaring its determination to construct the sewer, in accordance with sections 2795, 2833,1 Comp. Laws, is a jurisdictional defect, and cannot be cured by a subsequent resolution of the council. The cases of Hoyt v. City of East Saginaw, supra, and Bay City Traction Co. v. City of Bay City, supra, are cited with approval.
The proceedings to assess the defendant’s property in the instant case were in accordance with the requirements of the plaintiff’s charter, and therefore the cases above cited do not govern.
Being satisfied that the trial court was correct in its conclusion that it does not appear from the decree that the resolutions here involved were passed on adversely to the plaintiff in the former suit, and that consequently they are not res adjudicata, we are of the opinion that the order overruling the plea in abatement should be affirmed.
Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, and Moore, JJ., concurred. Steere, J., did not sit. | [
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Moore, J.
This case was commenced in justice’s court against defendant Friar and one Martin Stephan.
“The plaintiff declares orally upon the common counts in assumpsit, especially upon agreement for money and materials to his damages $300 or under, the defendant pleads orally the general issue.”
The case was discontinued as to defendant Stephan. From a judgment in favor of the plaintiff, the defendant Friar appealed the case to the circuit court. From a judgment in favor of the defendant, the case is brought here by writ of error.
The case was tried in the circuit court by the judge without a jury. Findings of fact and law were made as follows:
“(1) On March 5, 1906, one Martin Stephan entered into a written contract with one John Leff to build a house for said Leff for the sum of $3,800, and said contract provided that the defendant, James Friar, would handle the moneys and pay all bills, and defendant Friar did not sign this contract.
“ (2) I also find that, for the protection of the said John Leff, Martin Stephan gave a bond with defendant as surety to protect the said John Leff from any liens, levies, and attachments for labor and material going into the construction of said house and for the faithful performance of such work by the said Martin Stephan.
“ (3) I further find that during the progress of this work, when the said Martin Stephan required money to meet his bills, he would inform defendant Friar thereof, who would obtain such money from John Leff, pay it to Martin Stephan, who would pay such bills, taking receipts therefor, and turn them over to defendant Friar; these receipts showing the amounts so paid by Stephan and the purposes for which such payments were made.
“(4) I find that, after the making of the contract between Stephan and Leff, Martin Stephan subcontracted the mason work for said building to Pembrook & Handlin, for $350, and Pembrook & Handlin, desir ing to obtain material therefor from the plaintiff, Abram B. Knowlson, and also $100 in cash gave to said Knowlson an order upon said Martin Stephan reading as follows:
‘“Grand Rapids, Mioh., 4/26/06.
‘“Martin Stephan,
“‘468 Lincoln St.,
“ ‘City.
“‘Pay A. B. Knowlson or order, $350.00 as follows: $200.00 on completion of wall and balance on completion of our mason contract.
[Signed] “ ‘Pembrook & Handlin.’
“This order was accepted by Martin Stephan in writing across its face as follows: ‘Accepted, Martin Stephan, Contractor.’ This order was written in plaintiff’s office and by himself, and, after the acceptance of this order by said Stephan, plaintiff took it to defendant Friar and asked him to O. K. it, or accept it. Defendant refused to accept said order and it was taken away by plaintiff. The materials and $100 cash were furnished Pembrook & Handlin by plaintiff after such visit, the $100 on the same day.
“(5) I further find that on or about May 15, 1906, Martin Stephan took to and deposited with defendant $200 for plaintiff and gave plaintiff an order on Friar for that amount, which plaintiff presented to Friar and received the $200 and was applied by plaintiff upon the $350 indebtedness to him from Pembrook & Handlin, and the accepted order of Martin Stephan of date April 26, 1906.
“(6) And I also find that defendant Friar had no knowledge of the purpose of this deposit and payment by Stephan or of Knowlson’s application of the same, or that it had any relation to the contract between Leff and Stephan.
“ (7) And I further find that, during the construction of the building by Stephan for Leff, defendant Friar paid in full $3,800 for labor and material going into the construction of said building upon orders from said Stephan, and that upon the completion of said building there were still some outstanding and unpaid bills for labor and material going into the construction of said building, including the balance of $150 due plaintiff from Pembrook & Handlin.
“(8) I find that thereafter Pembrook & Handlin filed a lien on this building for $350, and that said lien failed' because it was not filed within the statutory period.
“(9) I further find that thereafter Knowlson commenced an action in justice’s court against this defendant, James Friar, and Martin Stephan jointly, on the order in question to recover the unpaid $150 thereon, and that later the case was discontinued as to Stephan and continued as against defendant alone, and which cause was appealed from justice’s to this court.
“(10) I also find as a question of fact that at the time plaintiff presented the $350 order, accepted by Martin Stephan, he requested defendant Friar to accept the same, and that defendant refused to accept it, never did accept it, and never promised to pay the same or any part of it, and that plaintiff took said order away with him and has ever since had it in his possession and under his control.
“(11) I further find that the claim of $150 now sought by plaintiff to be recovered from defendant Friar was the primary obligation of Pembrook & Handlin, that by its acceptance by Martin Stephan it became a primary obligation against Pembrook & Handlin and Martin Stephan, and that defendant Friar at no time promised to pay the same in writing.
“(12) I further find as a matter of fact that James Friar, the defendant, was the disbursing agent of Leff to the extent of $3,800, and that he was to disburse that amount from time to time as required by Martin Stephan, and that from time to 'time defendant Friar obtained different amounts to meet the orders and requirements of the said Martin Stephan, and that at no time was the said $3,800, or any great part of it, in the hands of the said defendant, James Friar, for disbursement; that the modus operand! concerning such $3,800 was that when the contractor, Martin Stephan, desired money, he would inform defendant Friar as to the amount he wanted and which sum would be obtained from time to time by defendant Friar from the said John Leff and paid over to said Stephan or upon his order, and that the said James Friar disbursed the entire sum of $3,800, being the full contract price and paying for labor and material upon this building and upon orders of the said Martin Stephan.
“Conclusion of Law.
“From the foregoing facts, I conclude that the plaintiff failed to establish by a preponderance of the evidence a primary and independent contract between ■plaintiff and defendant'for the payment of said $150 or any part thereof and to recover which this action was brought, and for that reason plaintiff is not entitled to recover, and a judgment should be entered for the defendant of no cause of action, with costs to be taxed.”
The first assignments of error relate to the admission of testimony. Without going into detail, it may be said that the testimony related to what was said and done by participants in the transaction who were also witnesses at the trial. We think the testimony competent.
One of the most important questions is: What occurred when the order of Pembrook & Handlin, which was accepted by Mr. Stephan, was presented to Mr. Friar? It is agreed defendant declined to accept the order in writing, but it is claimed by plaintiff that he said the order was good, that it was unnecessary for him to O. K. it, that he would pay it. There is testimony supporting this claim. ■ This claim is denied by defendant. He insists he refused to accept or pay it, and there is other testimony than his own supporting his contention.
It has long been the law in this State that a finding of fact by the court sitting without a jury is equivalent to a verdict, and will be disturbed only when it is clearly erroneous, or shows that the judge was influenced by improper motives or misunderstood the evidence. See the many cases cited in the Michigan Digest Annotated} vol. 1, p. 308.
It has already appeared' that the testimony was in sharp conflict, and it may be significant .that the order was not accepted when it would have been the easy and natural thing to do if Mr. Friar agreed to pay it. The finding of the circuit judge upon this question must control.
We cannot present the remaining question calling for consideration better than to quote from the brief of counsel:
“Defendant’s liability was fixed, primarily, when he signed the bond and contract, and accepted the trust and entered upon its performance. He did agree not only in writing to pay plaintiff’s order for the mason work on this job, but for all other bills for labor and materials. He further agreed in writing that these bills would not be paid by him until they were O. K.’d by Stephan. When the latter accepted the order in writing, defendant could not legally neglect or refuse to pay it. He could not deny liability by refusing to O. K. it, as is claimed by him in his testimony. * * *
“The defendant by the terms of the contract was a disbursing agent and banker, and accepting the trust imposed upon him, the agreement on his part to pay all bills for labor and materials furnished and used upon said building was an original and primary obligation and not collateral. Defendant was the disbursing agent or banker for the parties. The money by express language was put in his hands impressed with a trust, viz.: It was in his hands to pay bills. This made it a primary and original obligation on his part.
“Plaintiff contends that the signing of the bond with the contract attached and to which it expressly related and referred, together with defendant’s acceptance of the trust therein created and entering upon the performance of it, made the defendant primarily liable to pay the bills for labor and materials. These bills became due when defendant had notice that they were approved and accepted by Stephan. After such notice of approval and acceptance of bills by Stephan, defendant could not refuse or neglect to pay such bills and orders.”
This contention makes it necessary to consult the contract and bond. For some reason the contract is not contained in the record. There is only an excerpt from it as follows:
‘ “Specifications of work to be done and materials to be furnished in the erection and construction of a four-family tenement flat to be built at No. 115 Scribner street, Grand Rapids, Michigan, for Mr. John Leff according to plans and specifications.
“The contractor is to provide all labor and materials of every description necessary for the erection and completion of above mentioned work according to drawings and as herein specified, all work to be done in a neat, substantial, workmanlike manner. * * *
“Contractor will be obliged to show all bills and receipts for labor and material paid.
■ “The contractor hereby agrees to have building completed in four months after signing this agreement, if not completed the said contractor forfeits five dollars per day.
“James Friar will handle all moneys and pay all bills.
[Signed] “Martin Stephan, Contractor.
“J. Leff.”
It will be noticed that the amount which was to be paid Mr. Stephan for the erection of the building is not stated in what we have quoted, but it is agreed that the amonnt was $3,800. It also appears that Mr. Friar did not sign this contract. Suppose it be assumed that Mr. Friar was trustee in handling the funds. Must it not also be assumed that, when Mr. Leff paid the full' consideration he was to pay under the contract, he would be discharged of further liability? If this is true, would it not follow as to his trustee? The court has found that the full consideration of the contract, $3,800, was paid. This finding is borne out by the record.
But it is said the contract and the bond should be read together, and when so read the liability is established. The bond is as follows:
“Know all men by these presents, that we, Martin Stephan, as principal, and James Friar, as surety, both of the city of Grand Rapids, county of Kent, State of Michigan, are held and firmly bound unto John Leff of the same place, in the sum of thirty-eight hundred dollars ($3,800.00) lawful money of the United States of America to be paid to the said John Leff or to his certain attorney, heirs, executors, administrators or assigns to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, and each and every one of them, firmly by these presents.
“Sealed with our seal, dated the 5th day of March, one thousand nine hundred and six.
“The condition of this obligation is such, that if the above-bound Martin Stephan, his executors, administrators, or assigns, shall in all things stand to and abide by and well and truly keep and perform the covenants, conditions and agreements mentioned and contained in an instrument or agreement this day entered into between himself, and the said John Leff on his, the said Martin Stephan’s part to be kept and performed at the time and in the manner and form therein specified, and to the satisfaction of the said John Leff, for the construction of a certain building on the property known as 115 Scribner street in the city of Grand Rapids, Michigan, copy of said agreement is hereunto attached, and also pay for all labor performed and material used in the construction of said building, and preserve the said John Leff free and harmless from any liens or levies for or on account of such labor performed or material furnished. Then the above obligation shall be void; otherwise to remain in full force and effect.
“Signed, sealed, and delivered in presence of:
“Martin Stephan. [L. S.]
“James Friar. [L. S.]”
It will be noticed that the only parties to the bond are Mr. Leff, Mr. Stephan, and Mr. Friar. We cannot from any aspect of.the case reach the conclusion that the liability of Mr. Friar to the plaintiff has been established.
Judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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] |
Ostrander, J.
Act No. 164, Pub. Acts 1881, contains, as its title indicates, many different provisions relating to public instruction and primary schools. It is a consolidation of the laws relating to these important subjects. Many of its provisions had been in force since 1846. It is divided into 13 chapters, each subdivided into several sections. Each of its provisions applies, in terms, to all school districts in the State.
It goes without saying that, notwithstanding the generality of its provisions, the legislature had authority to erect school districts by special enactment, and that in such districts the provisions of such special enactment would be controlling. But upon this point the legislature left no room for doubt. The con- eluding section of the last chapter (section 11) recites the acts and parts of acts repealed, and the next preceding section (10) reads:
“All provisions of this act shall apply and be in force in every school district, township, city and village in this State, except such as may be inconsistent with the direct provisions of some special enactment of the legislature.”
This last-mentioned qualifying section has the significance, also, of a declaration that, when said Act No. 164 was passed, there were in existence school districts created and governed by special legislative enactments.
The general subject of chapter 2 of Act No. 164 is “formation, alteration, meetings, and powers of districts,” and section 17 thereof, not as enacted, but as amended in 1909 (Act No. 83), reads as follows:
“In all school elections every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, or who is the parent or legal guardian of any child of school age included in the school census of said district, and who has resided in said district three months next preceding such election, shall be a qualified voter. On the question of voting school taxes, every citizen of the United States of the age of twenty-one years, male or female, who owns property which is assessed for school taxes in the district, and who has resided in the district, as above stated, shall be a qualified voter: Provided, that the purchaser of land upon a land contract, who actually pays the taxes upon such land and resides thereon, may vote upon all questions; and where a husband and wife own property jointly and same is assessed for school taxes in the school district, each may, if otherwise qualified, vote upon all questions including the question of raising money.”
The situation being that because of various local acts — special enactments — the provisions of section 17 of chapter 2 were not controlling in all school dis tricts, and that in some districts persons were voters who would be excluded in others, the legislature, by Act No. 146 of the Public Acts of 1913, undertook to establish 'uniform qualifications for voters in all school districts of the State. No one can reasonably be in any doubt about this. How should the legislative purpose be effected? There were, perhaps, several ways. One way is suggested in the opinion of Mr. Justice Brooke. But clearly that is not the only way of indicating the legislative purpose. Indeed, it is not the best way, since it is evident that the legislature intended there should be no doubt about the application of the amended law to every school district in the State. Intending to establish uniform qualifications for voters, the legislature by Act No. 146 of the Public Acts of 1913, instead of amending said section 10 of chapter 13 by way of a proviso or otherwise, amended section 17 of chapter 2 so as to indicate precisely the purpose to be accomplished. It removed, by the amendment, the qualifying effect of said section 10 with respect to the qualifications of voters as plainly as though it had amended some other section or had added a new section. Where before, upon reading the two sections together, we found the universal application of said section 17 limited and qualified by said section 10, we now find it unqualified. It made it plain, by the words of the amendment, that no special legislation should be interposed to qualify the general legislation it was enacting. And no other method of expressing the legislative purpose could make that purpose more certain than it is made.
My Brother Brooke says, and in view of the reasoning he indulges he is obliged to say, that section 17 has not been amended, and he bases his contention upon the fact that the words added to the section by the legislature add nothing to the previous sweeping language of the section. In terms it has always ap plied to all school districts. It does no more now. This seems to me to be a curious begging of the point at issue. Certainly words have been added to the section, and this was an amendment of it, whatever the effect of it may be. Certainly its apparent sweeping application has always before been limited by said section 10. Certainly it was, before amendment, read with said section 10 to discover its meaning and effect. Just as certainly, when now read with that section, it has a different meaning and effect from what it had before.
We ought not to confuse the efféet of the amend.ment with the constitutional duty of the legislature to indicate an amendment in a particular way. In effect, every special'enactment containing provisions unlike those now found in said section 17 is amended or repealed. It is not a new thing to have many existing legislative enactments thus affected by new legislation. The section amended was re-enacted and republished at length as the Constitution provides. The Constitution has been precisely obeyed and the effect of the amendment is, and was intended to be (and no one can misunderstand the meaning of the act as amended), to provide uniform qualifications for voters in all school districts of the State.
I come now to consider Act No. 251, Public Acts of 1913. It is inartificialiy drawn, a„nd contains, apparently, inconsistent provisions. An analysis leaves little or no doubt concerning the legislative purpose, or the real meaning of the law. It is a general law, based upon a classification of the school districts of the State according to population. People v. Brazee, 183 Mich. 259 (149 N. W. 1053); Hayes v. Auditor General, ante, 39 (150 N. W. 331). The expressed purpose is that, in districts coextensive with a city having a population of 250,000 or more the board of education shall consist of seven members elected at large by the electors of the whole district qualified to vote for school inspectors. It provides for a referendum to determine whether it shall or shall not be effective in a particular district. This was unnecessary, because the act is not local in character. The referendum is to the electors of the school district. Who they are is ascertained from section 17 of Act No. 146, Pub. Acts 1913, hereinbefore considered. The electors of a school district may be designated by the legislature, and their qualifications need not be identical with those of constitutional electors. Belles v. Burr, 76 Mich. 1 (43 N. W. 24); Pingree v. Board of Education, 99 Mich. 404 (58 N. W. 333). See, also, Attorney General v. Lowrey, 131 Mich. 639 (92 N. W. 289); Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391); Menton v. Cook, 147 Mich. 540 (111 N. W. 94); Attorney General v. Board of Education, 154 Mich. 584 (118 N. W. 606); Board of Education v. Smith, 183 Mich. 428 (149 N. W. 978), upon the point that the legislature under the Constitution has substantially complete control over school districts. As the legislature might have omitted the referendum, it does not nullify the law that it is limited to persons who are qualified to' vote upon school matters — persons who will elect the school officers under the law. It is true that section 4 of the act refers in one place to a majority of electors having qualifications to vote at elections for school inspectors and in another place to a majority of the qualified electors of the city, meaning, evidently, in both provisions, the same electorate. Considering that the persons qualified to vote according to the act are those possessing the qualifications to vote for school inspectors, the later reference in the same section to qualified electors of the city “voting thereon” may be given a meaning in harmony with the first provision and the general purpose of the act.
The court has nothing to do with the wisdom of this legislation. The legislative power, with certain constitutional limitations, is vested elsewhere. If the court cannot clearly see that, in the exercise of the power, constitutional restrictions have been exceeded, the law must be sustained.
For the reasons expressed, I am of opinion that the act is valid.
Kuhn, Stone, Bird, Moore, and Steers, JJ., concurred with Ostrander, J. | [
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Brooke, C. J.
On the evening of October 3, 1912, the plaintiff, together with five other young men, entered into a contract with one William Billings, son of the defendant, by the terms of which the said Billings was to carry, by automobile, the six young men from Ishpeming to Marquette and return for the consideration of $6, which was paid. The automobile in question was a seven-passenger car. The trip to Marquette was made in safety. Upon the arrival in that city the seven young men visited several saloons and partook more or less of intoxicating liquor. At the expiration of an hour or so of this entertainment, the plaintiff and one of his companions, having made the acquaintance of a couple of young women upon the streets of Marquette, proposed to Billings that a ride be taken around Presque Isle, a driveway within the corporate limits of the city of Marquette. To this request Billings appears- to have at first demurred, but finally consented to go upon the condition that the entire party went. The other young men were then found, and the party proceeded to a hotel in the city where three other young women were added to the party, and the trip around Presque Isle was begun. The automobile during this trip contained 12 persons. Upon the return trip, in making a turn, a tire blew out, the automobile skidded, capsized, and fell upon the plaintiff, causing the injury for which suit is brought.
At the conclusion of the case defendant’s counsel moved for a directed verdict upon the following grounds:
“First. That the plaintiff has failed to show that the defendant in this case was the owner of the car at the time of the accident.
“Second. That the plaintiff has absolutely failed to show himself free from contributory negligence in this case.’’
This motion was denied by the trial judge, and the case was submitted to the jury, with the result that a verdict was rendered in favor of the plaintiff in the sum of $1,250. Defendant reviews his case'in this court by writ of error. There are but three assignments of error, which follow:
“First. The court erred in allowing plaintiff as a. witness in his own behalf, over the objections of the defendant’s counsel, to testify as to the accident complained of, for the reason that the accident which caused plaintiff’s injury occurred during an extra journey in the automobile not contemplated or paid for, which extra journey was. taken at the solicitation and under the direction of plaintiff and some of his companions, and against the objections of the driver of said automobile.
“Second. The undisputed evidence shows that the automobile was hired by plaintiff and his companions from William Billings, without the knowledge or consent of the defendant, between 8 and 9 o’clock in the evening of October 3, 1912, at Ishpeming, Mich., to run from Ishpeming to Marquette and return for a price of $6; that the extra trip around Presque Isle, sometimes designated the ‘Island,’ was not contemplated at the beginning of the journey from Ishpeming; that the trip around the Island was a distinct journey arranged by the plaintiff and some of his companions to give five of their lady friends a ride in the automobile; that the automobile was a seven-passenger car, and the placing in it of twelve persons, five more than the capacity of the car, by plaintiff and some of his companions, overloaded the automobile; that said overloading contributed to, if it was not the primary cause of, the accident; that for said overloading of said automobile during the journey around the Island the plaintiff was chiefly responsible, thereby contributing to the accident and to his consequent injury; therefore the court erred in not instructing the jury as a matter of law, under the undisputed evidence in this case, that plaintiff’s conduct and contributory negligence in the premises precluded plaintiff’s right to recover damages for his said injury against defendant, who had, according to all the testimony in the case, no hand, part, or knowledge of matters leading up to or causing the injury complained of by the plaintiff.
“Third. The court erred in not granting the motion of defendant’s attorney for a directed verdict in favor of defendant in this case, for two reasons: First, that plaintiff has failed to show that defendant in this case was the owner of the car at the time of the accident; and, second, that the plaintiff has absolutely failed to show himself free from contributory negligence in this case.”
In this court defendant’s counsel first argues that the case should be reversed because plaintiff failed to show the relationship of master and servant, or principal and agent, between the father and the driver of the car, William Billings, at the time of the accident, or at any other time, which was a condition precedent to plaintiff’s right to recover. With reference to this point, it is sufficient to say that defendant preferred no requests to charge except his motion for a directed verdict upon the grounds stated, and that there is no error assigned because of the failure of the court to charge that it was necessary for the plaintiff to establish the relationship of master and servant between the defendant and his son, who was operating the car at the time of the accident. There was some evidence in the case from which a jury might have inferred the relationship of master and servant between the defendant and his son; but, in view of the fact that there is no assignment of error covering this point, we deem it unnecessary to consider it at large.
The second point argued in appellant’s brief is that the record indicates that the court’s instructions to the jury were based upon the statute (section 10, Act No. 318, Pub. Acts 1909) which has been declared unconstitutional. This question, like the one last discussed, was not raised in the court below, and is covered by no assignment of error.
The third and fourth points argued relate to the relationship of master and servant and cannot be considered in this court for lack of proper assignments of error.
Assignments of error must be specific. This court will not consider arguments upon alleged errors not covered by assignments. Bills v. Stevens Co., 146 Mich. 515 (109 N. W. 1059).
Defendant next argues for reversal upon the ground “that plaintiff failed to show that defendant was the owner of the car at the time of the accident.” There was testimony introduced on behalf’ of the plaintiff to the effect that the defendant was the owner of the car. The plaintiff himself gave such testimony, as likewise did the witness Paulsmo. ' This evidence was received without objection on the part of defendant and was not attacked upon cross-examination. Further than that, the plaintiff testified that after his injury he approached defendant demanding a settlement, when defendant stated:
“I will tell you what I will do. I have got some money coming from some people who have not paid me for automobile rides, and, if you can collect them, you can have that.”
It is true both the defendant and his son testified positively that the son was the owner of the car. We are of opinion that, unsatisfactory as the evidence of ownership is on this record, it cannot be said that under the circumstances of the case a question for the jury was not raised which was submitted to them under proper instructions by the court.
Defendant’s counsel next claims that the court should have directed a verdict for defendant because the trip around Presque Isle was not included in the original contract hire. This point, likewise, was not raised in the court below, but may perhaps be said to be covered by the first assignment of error. The question was submitted to the jury for their determination, and their verdict indicates that the plaintiff’s theory of the scope of the trip was accepted by them.
The seventh point argued relates to the contributory negligence of the plaintiff and is covered by a proper exception and assignment of error. It may be said that it is not without difficulty. The plaintiff himself seems to háve been the most active in procuring the overloading, or overcrowding, of the car for its trip around Presque Isle. He seems to have imbibed intoxicating liquors with the others and to. have undertaken the journey without ' protesting either as to the overcrowding of the car or as to the alleged excessive rate of speed at which it was driven. It is, of course, elementary that, when seeking to recover damages for injuries caused by the negligent act of another, the plaintiff must show himself free from negligence causing or contributing to his injury. If it can be said in the present instance that the plaintiff acquiesced or participated in the negligence of the driver, he should not be permitted to recover. 29 Cyc. p. 551; Holden v. Railroad Co., 177 Mo. 456 (76 S. W. 973); and Huddy, in The Law of Automobiles, § 114. The court presented the question of plaintiff’s contributory negligence to the jury, and by their verdict they have determined his freedom therefrom. The instructions of the court upon the point, taken as a whole, we think fairly cover the question. While the case is not without difficulty, we have concluded that the record discloses no reversible error.
The judgment is affirmed.
McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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T. (1. Kavanagh, P. J.
This appeal is from the common pleas court for the city of Detroit which granted an award of overtime compensation under the fair labor standards act of 1938, and includes a cross-appeal testing the adequacy of the attorney’s fees which that court awarded.
The plaintiffs were employed by the defendant and her late husband in the paving and repair of certain streets in the cities of Grosse Pointe and Grosse Pointe Farms, Michigan.
Their claim for overtime was asserted on the theory that their work was performed on a facility or instrumentality of interstate commerce. It was defended on the theory that the streets upon which they worked were not an interstate commerce facility and hence their work was exempt as a local activity.
The question stated on appeal is:
“Were plaintiffs engaged in interstate commerce within the meaning of the terms of the fair labor standards act of 1938 as amended to date as such act has been construed by the courts to date?”
The trial court found as a matter of fact that the roads in question were available to and regularly used by persons and articles moving in interstate commerce.
It appears that the streets are used by the United States Postal service and residents of the area going to or coming from their places of employment and their out-of-state journeys. These streets all connect with interstate highways and hence are available to persons engaged in interstate commerce or the production of goods for commerce.
Under this circumstance we find no error in the trial court’s finding and affirm his judgment in this regard.
The cross-appeal questions the reasonableness of the attorney fees awarded under the act. The trial judge did not make findings of fact on this issue as required by our court rules. Counsel for the plaintiffs assert that they spent 92 hours and 20 minutes in the preparation and trial of this case. If this be the fact, an award of approximately $10 per hour does not impress us as a reasonable award in light of the minimum fees recommended by the bar association.
The cause is remanded for findings of fact and the award of a reasonable attorney fee as provided in the statute.
Plaintiffs may have their costs in this Court.
Levin and Vander, Wal, JJ., concurred.
. 29 ITSCA §201 et seq.
. GOB 1963, 517.1. | [
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Burns, P. J.
Defendant appeals from a jury conviction of obstructing, resisting, and opposing a police officer in the performance of his duties. OL 1948, § 750.479 (Stat Ann 1954 Eev § 28.747).
Upon leaving the village of Hubbardston after an investigation, Donald Langoni, a Michigan State police trooper, saw the defendant park a truck which bore expired license plates. The defendant showed Langoni his new license plates and informed the trooper that he was on his way to an oil station to have the new plates put on the truck. When Langoni discovered that defendant’s operator’s license had expired, the trooper told the defendant that he would only issue him a ticket for the expired operator’s license violation. As Langoni started back to his cruiser to write the ticket, the defendant started to leave. The trooper turned around and told the defendant to wait while he completed the ticket. After Langoni began to prepare the ticket inside his cruiser, the defendant again started to leave. The trooper ran to the truck and once again asked the defendant to wait. The officer testified that defendant said, “You are not going to give me a ticket because I won’t take it.” At this time the trooper noticed that the defendant’s brake pedal was all the way to the floor, and he informed the defendant that he would have to inspect the brakes. As Langoni stepped on the running board the defendant struck the trooper, knocked him off the truck and proceeded to the gasoline station. The trooper followed the defendant to the station where another scuffle ensued. The defendant testified that the police officer took his operator’s license and went to the cruiser, but he denied that he was ever told to wait or that he struck the officer.
The defendant has received 3 trials. A jury-found him guilty at the conclusion of the first trial. After he was granted a new trial, the second trial was terminated on defendant’s motion for a mistrial. At the conclusion of his third trial the jury again found him guilty.
The defendant has raised several questions of alleged error, many of which can be consolidated for this opinion.
Defendant argues that the justice of the peace lost jurisdiction of the case when he did not set a date for the preliminary examination within the 10 day limitation of CL 1948, § 766.4 (Stat Ann 1954 Rev § 28.922). Although defendant raised this objection in a motion to quash prior to the second trial, the motion was never noticed for hearing and the case progressed through one mistrial and the trial which is now being reviewed without further mention of the defect. All preliminary questions about the jurisdiction of a justice of the peace should be settled before trial commences. People v. Curran (1916), 191 Mich 583. Under these circumstances it does not appear that the error complained of has resulted in a miscarriag-e of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev §28.1096).
Defendant’s motion for a change of venue based on publicity accorded the original event in the local newspaper was denied. The article was published 14 months prior to the trial and on voir dire examina tion none of the jurors recalled reading it. The defendant was not prejudiced by the trial judge’s denial of the motion.
Defendant claims that certain of his statements, alleged to be admissions and confessions, should not have been received into evidence because of the prosecutor’s failure to give notice pursuant to G-CR 1963, 785.5 (376 Mich xlv) and because defendant was not advised of his constitutional rights in accordance with Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694). The controversial statements, however, were made in the course of and with vocal resistance to the arrest. The statements were part of the res gestae and in no sense could fall within the custodial interrogation reasoning of Miranda; they were not admissions nor confessions and the receipt of such testimony was proper.
Defendant objected to testimony concerning the attempted brake inspection on the ground that it was incompetent, irrelevant and immaterial. The trial judge said that the testimony was relevant and overruled the objection. The brake episode helped precipitate the present charge against the defendant. We consider the testimony not only relevant but also a part of the res gestae.
The defendant alleges that the trial court committed error by failing to give certain instructions to the jury as submitted by the defense. The substance of the charges given adequately covered the essence of 3 of defendant’s requested instructions. See People v. Vinokurow (1948), 322 Mich 26, and People v. Miller (1959), 357 Mich 400. The court refused to give the following instruction:
“An arrest without a warrant is always made at the peril of the officer. He must realize that his con duct is subject to review in court and that his justification is dependent upon the utmost good faith on his part. That he may consider the character and manner of life of the suspected person goes without saying.” People v. Ward (1924), 226 Mich 45.
The case cited by defendant is clearly inapplicable. The undisputed facts justify Officer Langoni’s attempt to issue defendant a ticket for driving with an expired operator’s license. Such an attempted arrest need not be preceded by considerations of the accused’s character and manner of life. The court did not err in refusing to give the above requested instruction.
The defendant alleges several other grounds of error concerning the admission of testimony, argument of the prosecutor to the jury, and questions of whether the defendant received a fair trial. These alleged errors do not merit discussion; they were sufficiently answered by defendant’s counsel at the time of sentence when he said, “Tour honor, I would like to say this: He has been convicted and has had a fair trial.”
Affirmed.
Quinn and Ziem, JJ., concurred.
Repealed June 8, 1967. See 379 Mich, Advance Sheet No 4, p xv. | [
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] |
Sherwood, J.
The bill in this case was filed by the complainant to enjoin a sale, by the sheriff of Kent county, of a house and lot in the village of Sparta., and obtain a release of levy made thereon by the defendant Kinney as such sheriff, under an execution issued out of the circuit court for the county of Lenawee, in chancery, in favor of the defendant, Frances Earll, and against the complainant.
The only question presented by the record, is, whether or not the property levied upon was at the time exempt as the homestead of the complainant.
The circuit judge upon the hearing, which was upon pleadings and proofs, found that it was, and granted relief accordingly.
The following facts appear from what we think may be regarded as the undisputed testimony : Prior to the year 1882, Nathan Earll and Frances Earll were living together as husband and wife in Lenawee county, Michigan. In April, 1882, they broke up housekeeping, and Mr. Earll came to Sparta, in Kent county, and Mrs. Earll remained at Adrian, in Lenawee county.
On the fifteenth of March, 1883, Nathan Earll became the owner of the property in question, consisting of one village lot, .and house and barn thereon.
The deed to Mr. Earll recites a consideration of $500, and it appears from complainant’s testimony, that it has not been worth more than $500 at any time since he purchased it, and that he did not then own, and since then has not owned any other real estate. About the time Mr. Earll purchased this property, Mrs. Earll commenced proceedings to obtain a divorce in the circuit court for the county of Lenawee, and a decree of divorce, providing for the payment to her of the sum of $800 alimony, was entered in that court on the twentieth day of April, 1883.
An execution was issued under this decree and a levy made on the lot in Sparta on July 5, 1883, and in August, 1884, the property was advertised for sale.
It is claimed in behalf of the complainant that this property, as soon as purchased, became, and ever since its purchase has continued to be, the homestead of Nathan Earll, and being within the amount and value of the homestead exemption, is exempt from sale under this execution.
The defendant’s contention is that the property was not at the time of the defendant’s levy occupied as the complainant’s homestead and never had been.
No question seems to have been made but that the quantity and value of the property, came within the constitutional and statutory limits of a homestead, and proofs were taken as to the circumstances of the occupation of the premises, and as to the circumstances and former relations of Mr. and Mrs. Earll, some of which might with great propriety have been omitted.
We think the finding of the circuit judge, upon the facts, fully sustained by a decided preponderance of the testimony ; and when we consider his superior advantages for passing upon the credibility of the testimony, the testimony having been taken. in open court, it would almost be presumptuous in this Court to attempt a change or modification of that finding: Griffin v. Nichols, 51 Mich. 575.
It is upon the incredibility of the testimony of the complainant that his counsel relies principally for reversal.
It appears from the testimony, that some considerable portions of time the complainant’s wife did not live with him, and on one of these occasions, about five months elapsed, when the complainant did not occupy the premises, at all, except in the use of the barn, and the house by a few articles of furniture, but rented it out to a tenant. This, however, would not deprive the property of its character as a homestead if the owner was only absent temporarily for some particular purpose, but intended to continue it as his homestead; and this fact was found by the circuit judge against the defendants.
It was not material whether his wife lived with him or not: Pardo v. Bittorf, 48 Mich. 275: Griffin v. Nichols, 51 Mich. 576; Reske v. Reske, 51 Mich. 541; Scofield v. Hopkins, 21 N. W. Rep. 259 ; Hanlon v. Pollard, 22 N. W. Rep. 767; Edwards v. Fry, 9 Kan. 425.
We find no error in the record. The decree entered by Judge Montgomery in the case is right and should be affirmed. No costs will be given in this Court.
The other Justices concurred. | [
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Morse, J.
The plaintiff in this action declared upon an appeal-bond, signed and acknowledged before a circuit court commissioner of Alpena county, by the defendant Oakes as principal, and the two other defendants as sureties.
The bond was upon an appeal taken from said commissioner’s judgment, in summary proceedings under the statute, for the possession of certain premises, in which proceedings a certain sum was found due for rent; and the bond contained the usual condition that in case judgment was rendered against the defendant Oakes, in the circuit court, he should pay the rent due the complainant (the plaintiff in this action) for the premises up to the time complainant obtained possession of the same.
The defendants Johnrowe and Grant pleaded, and defended on the ground that they never executed the bond in the shape and condition it was when sued upon and put in evidence upon the trial.
The bond, as presented in court, showed that it was originally written with the names of Augustus Johnrowe and Robert M. Donelly as sureties in the body of the bond; and that, the name of Donelly had been erased by running a pen through it, and the name of J. F. Grant written in.
It was claimed, and Johnrowe so testified, that when he signed the bond the name of Donelly had not been erased, nor had the name of J. F. Grant been added; that he would not have signed had he not supposed that Donelly was also going to sign and acknowledge it.
Grant testified that when he signed and acknowledged it the name of Donelly was in it and his was not; but he does not swear that he expected Donelly was to sign it, but that he executed it in the shape it then was without being told anything about it. The commissioner, Newton, also testified that when Johnrowe and Grant signed and acknowledged the bond there had been no erasure or interlineation made, as he remembered it, and that the body of the instrument contained the names of Johnrowe and Donelly as sureties, and that he knew nothing of the erasure of Donelly’s name and the insertion of Grant’s.
The plaintiff. introduced testimony tending to show that Grant said, before suit, that he signed the bond as an accommodation for Johnrowe & Donelly, who were partners; 'that Donelly for some reason did not wisli to sign it, and that he had signed it to accommodate them, and not because he had any interest in the matter himself. This Grant denied.
Before presenting the case to the jury, the court stated that he had some doubts whether he ought to submit the case without some evidence that Mr. Johnrowe, at the time he signed the bond, or afterwards, consented to the delivery of the bond without the signature of Donelly. lie stated the law correctly in saying that, in the first instance,- it was not incumbent upon the plaintiff to establish, by positive or direct evidence, that the alteration or ^rasure was made before the time of the execution of the bond ; there being nothing suspicious upon its face or in its appearance, raising any presumption that the alteration was made after execution. As he stated, the presumption was otherwise: Munroe v. Eastman, 31 Mich. 283; Sirrine v. Briggs, Id. 443; Hommel v. Devinney, 39 Mich. 522; Willett v. Shepard, 34 Mich. 106.
The court further intimated that, upon the testimony of Johnrowe, Grant, and the commissioner, he was inclined to .take the case from the jury. Thereupon the counsel for plaintiff offered the testimony of witnesses to prove that the name of J. F. Grant, as written in the body of the bond, was, in their opinion, in the handwriting of the said commissioner; but without allowing this to be done, the court directed a verdict for the defendants.
We think the case should have gone to the jury. The evidence shows Donelly to have been a partner of Johnrowe at the time the bond was executed, and soon ‘ after ■ he sold out to Grant. The commissioner testifies that Donelly refused to justify when he went to the store of Johnrowe & Donelly to get him to sign it; and then, the next morning, Grant came and signed it. He says, further :
“I never crossed the name (Donelly) out — never filled in the name of Grant — that 1 know of.”
Question. “You don’t remember filling that in?”
Answer. “ No, sir; I don’t think it is in my handwriting.”
Yet he knew that Grant was signing in the place of Donelly, and he affixed the papers of the appeal together, including this bond, and returned them to the circuit; and there is no evidence of any one tampering with them. Grant, at the time, was working in the store for Johnrowe & Donelly, and, from the intimate relations of the three men, and the circumstance of the execution of this bond, the jury might well have inferred that both Johnrowe and Grant knew that Donelly was not to execute the bond, and -were satisfied to execute it without him.
The court should have allowed the evidence as to the handwriting of the alteration. If made by the commissioner, it would have been a strong cdrroboration of _ plaintiff’s theory; and when the court intimated that he should direct, a verdict for the defendants, for want of testimony that this alteration was made at or before the execution of the bond, he should, in justice, have permitted plaintiff to show the alteration to be in the handwriting of the commissioner.
Nothing was said either by Johnrowe or Grant to the commissioner, that they were signing and acknowledging the bond upon the condition that Donelly should also execute it. Not more than two sureties are generally asked or required to sign bonds of this kind, and it might well be argued that this defense was an after-thought to defeat their liability.
There certainly was evidence tending to show that Grant signed with the distinct knowledge that Donelly was not to be a party to the bond, and the understanding and intention of Johnrowe, under the circumstances, were for the judgment of the jury, as they had the right to disbelieve the positive evidence given by him, and find from the circumstances, outside of his testimony, that he executed the bond with full knowledge that Donelly did not intend to join with him, or consented, after Donelly’s refusal, that Grant should be substituted in his place: Woodin v. Durfee, 46 Mich. 427.
The judgment is reversed, with costs, and a new trial granted.
-The other Justices concurred. | [
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Quinn, P. J.
April 28,1966, a jury found defendant guilty of forcible rape. 2Judgment of sentence followed, and defendant’s motions for new trial were denied. This appeal questions the validity of the conviction and sentence because of alleged error in jury instructions. '
It would serve no useful purpose to recite the sordid facts of the case beyond noting that the complaining witness, a 19-year-old divorcee with a 4-year-old daughter, left her parents’ home- at about 1:00 a.m. on the day of the alleged rape in rósponse to a tooting horn and the flashing lights of an automobile to go for a ride with defendant, whose last name she did not know. During the 2-1/2 hours, or more, that the complaining witness was in the car, it was parked most of the time in an alley where the alleged rape occurred. After both parties drank at least 1 bottle of beer and at the request of defendant, the complaining witness kissed him a few times. Thereafter, defendant choked her, threatened to kill her and the first act of intercourse took place in the front seat of the automobile with both parties sitting up,-the complaining witness sitting on defendant’s lap. She had previously taken off her pants, and, at his request, she undid the zipper on his pants, but these events occurred while defendant was either choking her or holding her firmly by the throat and threatening her. A second act of intercourse occurred with the complaining witness lying on the front seat with her head toward the right front door; again defendant was either choking her or holding her by the throat and threatening her. Thereafter, defendant drove the complaining witness to the destination she requested and let her out of the car.
In defining rape in the jury instructions, the trial judge stated in part,
“The word, of course, rape and carnal knowledge, means sexual intercourse and it is sexual intercourse if there is any penetration however slight of the female organ. There was obvious, from the testimony here, sexual intercourse. The question remains whether it was by force and violence.”
In defining the included offense of assault with intent to commit rape, the trial judge stated in part,
“You may find there was not rape committed here and may find there was an assault to commit rape. By that we mean if any person shall assault a female with intent to commit the crime of rape he shall be guilty of a felony. , Now, that is one of the lesser included offenses. In other words, if you find there was an assault and surely there was an assault, # * * JJ
We believe the quoted excerpts from the charge exceed the permissive authority granted a trial judge to comment on evidence as provided in CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052) and GCR 1963, 516.1. Such authority permits comment that evidence supporting a fact is undisputed, if this is the fact, but it does not permit stating as a fact that which the undisputed evidence tends to prove. People v. Pratt (1930), 251 Mich 243.
The people argue that defendant waived objection to the instructions because no objection thereto was made at trial and defendant was afforded the opportunity to object. GCR 1963, 516.2 would control except for the fact we deal here with comment on evidence, not instructions. See People v, Oates (1963), 369 Mich 214.
Reversed and remanded for new trial.
T. G. Kavanagh and Corkin, JJ., concurred.
CLS 1961, § 750.520 (Stat Aim 1954 Rev § 28.788).
OLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280). | [
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] |
T. G. Kavanagh, J.
Defendant, Milton Shields, was convicted of assault with intent to commit murder, CL 1948, § 750.83 (Stat Ann 1962 Rev § 28.278) and assault with intent to rape, CL 1948, § 750.85 (Stat Ann 1962 Rev § 28.280). Only the first of defendant’s seven assertions of error warrants our attention, i.e., did the trial court err in denying defendant-appellant’s petition for proceedings to be taken under the provisions of the following statutes which provide:
“When any person is charged with a criminal offense, whether a felony or a misdemeanor, or has been convicted of or has pleaded guilty to such offense and has been placed on probation, or has been convicted or pleaded guilty to such offense but has not yet been sentenced, and it shall appear that such person is a criminal sexual psychopathic person, as evidenced by such mental disorder which has existed for a period of not less than 4 months, then the prosecuting attorney of such county, or the attorney general, or some one on behalf of the person charged, may file with the clerk of the court in the same proceeding wherein such person stands charged with, or has been convicted of, or has pleaded guilty to such criminal offense, a statement in writing setting forth facts tending to show that such person is a criminal sexual psychopathic person.” CLS 1961, § 780.503 (Stat Ann 1954 Rev § 28.967 [3]).
“Upon the filing of such statement by the prosecuting attorney or the attorney general the court shall, or if filed on behalf of the accused the court shall, appoint 3 psychiatrists qualified by at least 5 years of exclusive practice in psychiatric diagnosis and treatment and chosen from a list consisting of not less than 6 compiled by the department of mental health to make a personal examination of such alleged criminal sexual psychopathic person who shall file with the court a report in writing of the results of their examination together with their conclusions. Said report shall be open to the inspection of the accused or his counsel, but shall not be competent evidence in any other proceeding against accused except the hearing to inquire into his alleged psychopathy. Said alleged psychopath shall be required to answer the questions propounded by such psychiatrists under penalty of contempt of court: • Provided, That such examination shall not violate common law privileges or constitutional privileges against self incrimination. In the event that all 3 of such psychiatrists in such reports state their conclusions to the effect that such person is a criminal sexual psychopathic person with a written statement of facts on which such conclusions are based, then proceedings shall be had as provided in this act prior to a trial of such person upon the' criminal offense with which he then stands charged, or prior to sentence if he then stands convicted and has not been placed on probation, or prior to completion of probation sentence.” CLS 1961, § 780.504 (Stat Ann 1954 Rev §28.967 [4]).
The petition filed on behalf of defendant stated:
“(a) On or about November 12, 1959, in Bay county, Michigan, he was convicted of contributing to the delinquency of a minor;
“(b) On October 24, 1962, in this court, charged with assault upon a minor with intent to rape her, he pleaded to and was convicted of, assault and battery;
“(c) On the 31st day of October, 1965, he committed the indecencies described in the two affidavits hereto attached.”
The court’s order, in part, reads:
“The allegations that defendant has been convicted of contributing to the delinquency of a minor and of assault and battery are meaningless.
“The allegations of defendant’s conduct on October 31,1965 are sufficient allegations of facts tending to share [sic] that defendant was suffering from a mental disorder on that date alone.
“If there were an allegation that on or before October 24,1962 defendant did assault someone with intent to rape, then such petition with the existing allegations would suffice. The fact that the charge was made is not enough.
' “The petition is denied. Petitioner or any other person may file another petition.”
Neither defendant nor anyone on his behalf filed another petition; the case proceeded to trial and resulted in a conviction.
In order to allow a psychiatric examination under this statute, the court must be presented with a statement of facts tending to show that such person is a criminal sexual psychopathic person. Upon filing a sufficient statement of facts, a psychiatric examination will be provided, and, based on the medical opinions, a hearing before the court may follow. The petition must state “facts tending to show or from which a conclusion of criminal sexual psychopathy could reasonably or properly be drawn.” (Emphasis added.) People v. Holnagle (1963), 371 Mich 347, 350. A statement containing mere opinions, or one having only allegations that defendant has been or is presently accused of sexual offenses, in insufficient. (See People v. Artinian [1948], 320 Mich 441; In re Kelmar [1949], 323 Mich 511; In re Carter [1953], 337 Mich 496.) A statement showing prior convictions of sexual offenses has been found to comply with statutory requirements. In re Pryor (1952), 335 Mich 212.
In the present case, the petition filed on behalf of defendant was accompanied by affidavits relating facts of certain incidents which, in the opinion of the lower court, constituted a sufficient showing of a mental disorder “on that date alone.” (Emphasis added.) The implication is that the court required a showing of a continuous mental disorder.
It is our opinion that the statute does not require such a showing. If the lower court believed, as it appears it did, that these affidavits tended to show defendant to be a criminal sexual psychopath, then the petition for a psychiatric examination should have been granted.
As pointed out in People v. Chapman (1942), 301 Mich 584, the proceedings under this statute are civil in nature, closely resembling a statutory inquest for the commitment of an insane person accused of a felony (CL 1948, § 767.27a [Stat Ann 1968 Cum Supp § 28.966 (11)]). Jurisdiction is provided the court by a pending criminal charge against an accused.
It has always been the purpose of the court, where the prosecution petitions for examination of defendant, to protect the accused by requiring the statement to contain something more than allegations, accusations or opinions. In view of that purpose, what, then, must be presented by defendant where he, or one on his behalf, petitions the court under the statute ?
As pointed out in People v. Hilles (1950), 327 Mich 124, the motivating force behind defendant’s petition may stem from his desire to be hospitalized rather than imprisoned. A consideration of motives, however, though proper at the hearing stage, has no place in the grant or denial of a petition for psychiatric evaluation. Where the defendant or someone on his behalf, rather than the prosecuting attorney, has petitioned the court under CLS 1961, § 780.503 (Stat Ann 1954 Eev § 28.967[3]), psychiatric examination should not be denied if there are any facts tending to support the request.
The facts presented by defendant here, apart from the pending charge are not numerous. If true, however, as we must consider them to he, they tend to show abnormal sexual tendencies at the very least and a criminal sexual psychopath at the worst. In cases of this type, for the interest of the individual and society, if a petition is unopposed by defendant and contains any facts to support it, the request should he granted.
Therefore, the sentencing is set aside and the case remanded for a psychiatric examination of defendant and, if appropriate, a hearing pursuant to CLS 1961, §780.505 (Stat Ann 1954 Eev §28.967[5]). We find no error to have occurred at the trial, and therefore, if defendant is found not to be a criminal sexual psychopath, resentencing will he in order.
Lesinski, C. J., and Fouet, J., concurred. | [
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Morse, J.
The complainant’s bill is for the specfic performance of a written contract, under seal (but without witnesses), made between the complainant and the Central Car & Manufacturing Company, a corporation, for the sale of certain real estate to the complainant as vendee, the land having been conveyed subject to the contract, and the contract, when about half paid, assigned to the defendant by a deed containing full covenants. The defendant, having tendered a deed containing a covenant against his own acts, for delivery on the payment of the remainder of the purchase .price, the complainant refused to receive it, and comes into court to compel the defendant to execute a deed with full covenants. The defendant demurred, and the court below dismissed the bill.
The agreement, or contract for a deed, provided : “ And | the said party of the first part, on receiving such payment' at the time and in the manner above mentioned, shall, at its own proper cost and expense, execute and deliver to the said party of the second part, or to his assigns, a good and sufficient conveyance in fee simple of said described lands, free and clear from and of all liens and incumbrances, except such as may have accrued thereon, subsequent to the date hereof, by or through the acts or negligence of said party of the second part, his heirs or assigns.”
The bill shows .that, upon the execution of the contract, the complainant paid some money upon it, and went into possession of the lands, which possession he has ever since held.
The Central Car & Manufacturing Company, by its properly executed and delivered deed, conveyed this land to the defendant, subject to complainant’s contract, which deed contained all the covenants called for by the contract. After the deed and assignment aforesaid, the complainant paid to defendant all the money due upon the contract, except about $50. On the twentieth day of January, 1885, he tendered to said defendant the balance upon the contract, and demanded a deed according to the terms of the agreement. Defendant prepared and executed a deed of the premises, but the same was not a deed with general covenants of warranty, or a warranty deed of usual form, but a deed, being a release or quitclaim, with covenants only against the acts of said defendant. This deed the complainant refused to accept., He then,'on the thirtieth of the same month, prepared a deed of the premises, containing the usual covenants of warranty, to be signed by defendant and his wife, and presented the same to said Potter for execution, at the same time tendering him one dollar for expenses, and offered him sixty-one dollars, being the amount claimed to be due by the defendant upon the contract. Potter refused to accept the money or execute the deed, declaring that he would make no other than the quitclaim aforesaid.
The controversy, therefore, is whether complainant is entitled to the deed he demands of defendant.
There is no averment in the bill expressly stating that complainant has ever consented to the release of the Car Company from its obligation under the contract, and the substitution of defendant in its stead ; but the bill shows that complainant, after the assignment of the contract to the defendant, paid him a large amount upon the contract, which defendant accepted, establishing a virtual substitution and a privity between the parties to this suit.
It has been held in this State that, where a vendor, in a contract like the one under consideration,, had conveyed the land to a third person, in possession of the premises under a contract with the vendee in disregard of the rights of the vendee, the vendee had a right to a specific performance of the vendor’s contract by such third person holding the title:' Bird v. Hall, 30 Mich. 374 The original vendor was made ' a party in that case, because there were no contract relations ¡ between the vendee and the vendor’s assignee; and so, also,' in Daily v. Litchfield, 10 Mich. 29. But in this case, it was not necessary to make the Car Company a party, as the complainant had fully accepted the defendant in its stead.
In equity, the corporation in this case was a trustee of the title of these premises, holding the same for the complainant,'to be conveyed to him upon the performance upon his part, of the contract. The defendant purchased the premises of the corporation, subject to its contract, and with notice of the complainant’s rights. He must therefore be deemed as standing in the shoes of the vendor, and is as much a trustee for the vendee, the complainant, as was the corporation before its assignment of the contract: Murray v. Ballou, 1 Johns. Ch. 566; Saunders v. Dehew, 2 Vern. 271; Laverty v. Moore, 33 N. Y. 658; Smoot v. Rea, 19 Md. 398. The complainant is therefore entitled to a specific performance from the defendant. Taking the conveyance with a full knowledge of complainant’s equities, and succeeding to the interest of the vendor in the premises, and having been tendered the full amount of the balance due upon the contract, he must transfer the title to complainant, and transfer it in substantial compliance with the terms of the contract. The complainant has a right to demand and obtain as good a title in every respect as he would have been entitled to receive, had the vendor not parted with it: Keegan v. Williams, 22 Iowa, 378; Smoot v. Rea, 19 Md. 398; 2 Story Eq. Jur., 6th ed., § 784; Downing v. Risley, 15 N. J. Eq. 93.
It seems to us that the demurrer should have been overruled. The complainant was entitled, under his contract, to a deed containing the usual covenants. The covenant against incumbrances and for seizin not running with the land, a quitclaim deed from defendant would not give him the title his contract guaranteed him : Rawle, Cov. 318, 320; Davenport v. Davenport, 52 Mich. 587; Matteson v. Vaughn, 38 Mich. 373. The defendant has received from the vendor, the Car Company, a warranty deed with full covenants, and the complainant asks from him only the same covenants. There is no good reason why he should not make such a deed. The case set out in complainant’s bill is equitable, and the defendant should comply with his demand or make answer, if he has any defense upon the merits.
We cannot agree with the counsel for the defendant that his client became, by the deed and assignment of the Car Company, the trustee of the corporation, in the sense of being a mere agent whose only duty was to pass over to the complainant the deed of the Car Company to him with his own quitclaim, but he became a trustee, in the sense of succeeding to the rights and also the obligations of his vendor and assignor — standing in its place — and bound, by the Car Company’s contract, which became his own, to give to the complainant as good a conveyance in every sense as the corporation must have done, had he not taken its place.
If equity can allow the defendant to substitute his quitclaim deed for the warranty that complainant demands, the record title of these premises, which is the guide of purchasers, will not show the complete and perfect chain of warranties which dispenses with extrinsic evidence, to the buyer, that the title is good. There can be no hurt to the defendant in executing the deed required by complainant, unless there is something wrong in the title; and, if there is, the contract to which he has become a party cannot be fulfilled without such a deed.
The decree of the court below is reversed, and the demurrer of defendant overruled, with costs of both courts to complainant. Defendant will be allowed 20 days in which to answer.
The other Justices concurred. | [
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] |
Sherwood, J.
This suit was commenced in the circuit court for the county of Wayne on the twenty-first day of December, 1881.
The action is assumpsit on all the common counts, and' the plaintiff’s bill of particulars is made up of the following items:
To services rendered by plaintiff from 1872 to 1876, for said defendant, in obtaining a release of lease made by the trustees of said church to Frederick Rese, in 1831, of the tract of land known as the square on which St. Anne’s Church stands; also of laud known as the “Monier Lot,” on the southeast corner of and - $5,000
To services rendered from 1872 to 1876, in settlement of matters in dispute between said corporation and Casper IT. Borgess, - 5,000-
To services in procuring release of lease made thirteenth o'f March, 1859, by Peter Paul Lefevre to the Sisters of Charity, and also release of lease made twelfth October, 1865, by said Peter Paul Lefevre to said Sisters of Charity, ... 5,000
The defendant pleaded the general issue, with notice of the statute of limitations.
Trial was had at the circuit in the month of October, 1885, resulting in a verdict and judgment for the plaintiff for the sum of $3,000. The case is brought to this Court by writ of error for review on bill of exceptions.
The plaintiff is an attorney at law in Detroit, where he has resided many years.
The defendant is a religious corporation, organized under the act of 1807, adopted April 3 of that year by the governor and judges: 1 Supp. Terr. Laws, 16; 1 Terr. Laws, 209. St. Anne’s Church is the oldest church organization in the-State, and the society’s first house of worship was erected by Cadillac in 1701: Farmer’s History of Detroit, 527. The congregation organized as a corporation under the "statute-the twelfth day of April, 1807, as stated.
By the articles of incorporation the management of the-affairs of the corporation was vested in the curate of the parish and four trustees, and it is therein stated that “ the curate and two of the four trustees, or three of the trustees-with his consent, shall suffice to act and pass all proper-decrees.” The trustees, “ according to immemorial custom,” were to be “elected for four years by the assembly of the former trustees,” etc. These articles are still in force, and, together with the act of 1807, constitute the organic law of the corporation.
The church organization, it will be observed, is made up of three elements: (1) Members of the congregation who have never been trustees; (2) former trustees, who are known as old or ancient trustees, being those who have once been one of the four trustees; and (3) the four trustees constituting the board for the time being, and known as active trustees. Whenever a term expires, or a vacancy occurs, the ancient and-active trustees together elect a successor. Edward V. Cicotte was first elected a trustee in 1837 or 1838, and has been one of the ancient trustees ever since, and has acted as such, more or less.
A meeting of the “ old and new trustees ” was held sometime on or between the twenty-fifth day of December, 1870, and the thirty-first day of December, 1871, at which the first action involved in this case was taken. The exact date of this meeting is not known.
Cicotte claimed, in making out his case before the jury, that he was employed by the curate, the president of the corporation, to do three things: (1) To procure from the bishop; who had a lease for 999 years, dated in 1834, the title to lands of the church, worth at least $200,000; (2) to cancel a balance of about $28,000, due on an account of $103,000 to the bishop; 3, to cancel a lease held by the Sisters of Charity of property owned by the corporation; that he was engaged several years in this business, and finally accomplished it; that all the corporators were aware of the employment and the performance of the services, and that he expected pay; that he associated Prof. Wells, a counselor at law, with himself, and the curate paid him; and that the curate also paid Cicotte’s expenses, and said that he deserved something, but never would pay, out of pique, which arose from the fact that Cicotte was opposed to selling the land.
The record shows that the defendant is not only an ancient trustee, but that on the thirty-first day of December, 1871, lie was elected for the term of four years, and at the expiration of that term he was re-elected for another term of four years.
During the entire existence of this church, until about the year 1875, it held the title to its church property. It, however, executed a lease of the same to the bishop of Detroit on the first day of May, 1834, for the period of 999 years.
In consequence of difference between the church and bishop of Detroit, it was thought desirable, upon some suitable terms, to make a surrender of the lease, and place the title to the property in the bishop, and at the same time adjust an indebtedness of the church to the bishop, claimed by him to exist. The initiative in the matter was taken some time during the.year 1871, at a meeting of the trustees, in which the following appears in its recorded proceedings :
“A committee was appointed by said meeting to meet a committee appointed by the Eight Eeverend Bishop Borgess, to confer with each other in respect to matters in difference existing between the corporation of St. Anne’s and a lease given by said corporation to the Eight Eeverend Bishop Frederick Eese, May 1, 1834. The persons appointed in behalf of said corporation of St. Anne’s were Alex. Cliapotou, Sr., Antoine Morass, and Edward Y. Cicotte ; the Eight Eeverend Bishop Borgess having previously invited by written communication, addressed to the trastees of said corporation, soliciting them to appoint a committee for the above-mentioned purpose.” .
This record is signed by E. Y. Cicotte and thirteen other persons, including Eeverend Father Anciaux, the curate.
This appears to be all the record-showing there is in the case relating to any x’equest or employment of the defendant on the part of the church or its trustees to perform the services for which the judgment in this case has been rendered.
The defendant’s counsel claim that the plaintiff, at the time the alleged service was performed, was an active trustee, and that whatever he did was done in that capacity, in furtherance of a religious and charitable object, and gratuitous; that as trustee, and a member of an appointed com mittee, he had no right to employ himself to perform the service for which he claims; that neither had the curate any authority to make a contract with the plaintiff for the service for which he claims; that there was no contract, either express or implied, between the parties; and that the relations of the parties were such as to repel any presumption to. that effect.
The circuit judge was asked to instruct the jury to return a verdict for the defendant. We do not think the case one proper for this instruction.
It is well settled that.corporations, whatever may be their character, are placed upon the same footing in regard to> their contracts, and the implications upon which they may be based, as natural persons: McCracken v. Halsey Fire Engine Co., 57 Mich. 361; Ang. Corp. § 240; Cape Sable Cols Case, 3 Bland, 606; Hunt v. San Francisco, 11 Cal. 250 ; Chesapeake & Ohio Canal Co. v. Knapp, 9 Pet. 541; Poultney v. Wells, 1 Aiken, 180; Chestnut Hill Turnpike Co. v. Rutter, 4 Serg. & R. 16; Dunn v. St. Andrew’s Church, 14 Johns. 118 ; Baptist Church v. Mulford, 8 N. J. Law, 182; Hayden v. Middlesex Turnpike, 10 Mass. 397.
- The defendant was an attorney at law, and I think he might have been employed in his professional capacity to do the work he has charged for in his bill of particulars. He testifies that he declined to act as one of the trustees in the-matter in which he claims to have performed the service for which he seeks payment. Certainly, the services were not such as he was obliged to perform, either as committee-man or trustee, nor were they against the interest of the church for which they were performed. What was done through his agency seems not to be complained of by St. Anne’s. Church, and there were undoubtedly special reasons why he was earnestly requested by the pastor to act as committeeman, or .in some capacity to aid in bringing about an accommodation of the difficulties between the corporation and the bishop. There is no intimation of fraud or collusive conduct on the part of the plaintiff, nor that his services were not valuable. The case in which the services were rendered does not sliow a sale of the property to one of the trustees, nor to a member of the committee ; neither does it show the plaintiff acting in any save in a fiduciary or trust capacity in the services he performed.
While he was not acting as a trustee in what he did for which he claims pay, he acted for them ; and if there was a .number sufficient to act without his participation in the matter, there was no legal objection to their making a special contract with, him to perform the service. They certainly had the power so to do under their charter and articles of association: People v. Overyssel, 11 Mich. 222, opinion by Justice Campbell ; Mayor of Niles v. Muzzy, 33 Mich. 61; German American Seminary v. Kiefer, 43 Mich. 105 ; Chandler v. Monmouth Bank, 13 N. J. Law, 255; Gardner v. Butler, 30 N. J. Eq. 702, 721.
If the services claimed could be recovered for under a special contract, there can be no good reason given, I apprehend, why an implied liability may not arise for the performance of such service, unless there is something in the circumstances of the case which necessarily repels or excludes such implication. The simple fact that services are rendered does not raise a liability,on.the part of the person for whom they are rendered, even though done at his request, if the circumstances are such as to rebut the inference that compensation is to be made. When services are performed from kindly motives, and with charitable intentions, the law will not imply a promise to compensate for them : Woods v. Ayres, 39 Mich. 345 ; Coe v. Wager, 42 Mich. 49; Van Buren v. Reformed Church, 62 Barb. 495; Lee v. Lee, 6 Gill & J. 316; Palmer v. Haverhill, 98 Mass. 487; Watson v. Stever, 25 Mich. 386.
The evidence in this case, though strongly tending to • show gratuitous services on the part of plaintiff, was not conclusive upon the subject. It was proper to be submitted to the jury, and their finding is against the defendant, and must stand tinless error has been committed by the court in .its rulings or in the charge.
The case should have been submitted fully upon the theory of both sides.
The evidence is clear that there was no express contract for compensation to the plaintiff, consequently the plaintiff was necessarily compelled to rely upon the facts and circumstances entirely to make out this branch of his case, and anything which would tend to contradict, explain,, or in any way weaken or modify, the plaintiff’s testimony, should have been permitted to go to the jury on the part of the defense. The witness Lafferty, we think, should have been allowed' to answer the following question:
“ Will you inform us whether, or not it has been customary for the corporation to pay trustees for services rendered by them ?” •
It was claimed by defendant’s counsel that it was in that capacity these services were rendered, and the custom would . certainly have a tendency to show how the parties understood the question of compensation when the work was requested and being done. It was error to exclude it.
A similar question was propounded to witness Eli Baric ume, viz:
“ Will you state whether or not it has been customai’y for the trustees to receive compensation for such services ?”
The answer to this question was erroneously excluded for the same reason. It was but a fair presumption that Mr. Cicotte rendered his services upon the customary conditions of the other trustees in like cases. All the other questions of like import should have been permitted to be answered. The conversations the plaintiff had with Father Anciauxand with Eli Barkume'about the sales of property to Bagley, and to the Bagley estate, were irrelevant and hearsay, and improperly admitted. The individual recognition of the trustees to the right of plaintiff to compensation was incompetent, and should have been excluded. Their actions and doings and sayings in their official capacity would have been quite proper. The statements of the curate were also inadmissible relating to that subject, upon the same ground.
TJpon the defendant’s theory that the services of plaintiff were gratuitous, and that there was nothing in the facts or circumstances from which a contract for pay could be implied, we think the following requests should have been given:
“ 11. If the performance of the work was voluntary, and both sides supposed the service was given spontaneously, from a desire to promote a cause the plaintiff had at heart, no agreement to pay can be implied.
12. If the work was done under circumstances justifying the belief that no charge was intended, there is no liability to pay.
13. If the relations of the parties, the nature of the service, and all the pertinent facts, show that the plaintiff was not working for money, and that the church did not understand that pay was to be exacted, none can be demanded.”
We do not think the substance of these is found in the general charge of the court.
The question, under the testimony presented in. the record, as to the power of the curate to make any contract for the purpose it is claimed he did, is exceedingly doubtful, and the evidence, while it is incomplete as to the ratification of what the plaintiff did in the business intrusted to the committee, is even less satisfactory as to any understanding as to paying for the services rendered, either express or implied.
The further consideration of this subject is unnecessary, as the errors mentioned render a reversal necessary, and a new trial will be granted.
The other Justices concurred. | [
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] |
Morse, J.
Plaintiff brought suit in the circuit court for the county of Marquette to recover taxes paid under protest.
The corporation paid taxes assessed upon 10,120.24 acres of land for the year 1884. The tax known as “township” or “contingent” tax amounted to $168.15; highway tax, $378.20; county and state taxes, $532.88; total, $1,079.23.
The tax was paid and protest filed December 26, 1884. Under the ruling of this Court in Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 79, it being a voluntary payment, this suit must be based upon the specific allegations of the protest. The cause was tried before a jury, who, under the charge of the court, found a verdict for the defendant, upon which judgment was entered.
Most of the objections against the validity of this tax seem to come within the rulings of this Court ip the case of Sawyer-Goodman Co. v. Township of Crystal Falls, 56 Mich. 597. This was a suit against this same township, defendant here, for taxes paid under protest, assessed and levied in 1883.
The first claim under the protest, and upon the argument here, is that the assessment roll is void, not having been made by the supervisor; and that the property was not estimated by him at its true cash value, according to his best information and judgment.
The evidence shows that the clerical work of making out the roll was done by one Byrne, who placed the valuations of most of the lands “upon the roll under the direction of the supervisor. It appears, however, without contradiction, both by the testimony of Mr. Byrne and the supervisor, that the valuations of the lands were estimated and made by the supervisor, and not by Byrne. In no instance did Byrne, in any way, undertake to fix or assist in fixing values. Whatever values he put down were placed upon the roll under and by the instructions of the supervisor. His duties were only those of a clerk, and his action had no tendency to invalidate the roll.
It is asserted that the supervisor did not pass judgment upon the lands described in the roll, and did not assess them at their true cash value, because he assessed a large lot of the lands not cut* uniformly at $6 per acre, and “ cut ” lands, being lands upon which the pine timber had been cut, at $1.50 per acre.
This town, as was said in Sawyer-Goodman Co. v. Crystal Falls Tp., contains nine surveyed townships, each six miles square, and on several of these the wilderness is nearly unbroken. It was not possible for the supervisor to visit and inspect each parcel of land upon the roll. The supervisor did all, in our judgment, that it was necessary for him to do under the circumstances. The supervisor testifies that he commenced his labors as soon as he was elected, and continued at work, more than eight hours a day, up to the time of the meeting of the board of review. He examined, during that time, personally, nearly all the lands in two townships. He could not reach all the townships, but had been through them before. He made inquiries whenever he had opportunity of persons who were supposed to know what the values of the lands were. He established his judgment upon his own knowledge and that derived from these inquiries. He made what he considered a fair estimate of their true cash value, upon a fair average of the lands. There is no evidence whatever to show that any of these lands were assessed for more than their cash value, or for any unequal assessment, so far as plaintiff’s lands were concerned. What testimony was adduced tended to show that the íands of the plaintiff were all, not cut, worth from $50 to $60 per acre.
The plaintiff offered no proof of the value of its lands, and did not appear before the board of review to complain of the values placed upon them by the supervisor; nor does the counsel for plaintiff here urge that the valuation was either fraudulent, unjust, or unequal in fact, to its detriment, but is contented with the argument that the supervisor should have personally inspected every parcel, or employed agents to do it, and could not legally assess these wild lands at a uniform rate of six dollars per acre.
These same objections were made and overruled by this Court in the case of Sawyer-Coodmam Co. v. Crystal Falls Tp.
The circuit judge instructed the jury, in substance, that there was no evidence in the case tending to show that the supervisor acted fraudulently in the assessment, but that he appeared to have acted honestly, according -to his best judgment and information, and that was all the law required.
It is urged that he should have, at least, submitted to the jury the question whether the supervisor used his best judgment and information, and assessed the lands at their true cash value.
We do not think so. There was no conflict in the evidence. The plaintiff corporation did not appear before the board of review, presumably because it could not rightfully complain that its lands were assessed too high or unequally, as compared with other lands. On the contrary, it is evident that if there was any inequality in the assessment, which is by no means certain, this company were not sufferers, but gainers, thereby, and have no just cause of complaint. If there was any inequality in the assessment against the plaintiff’s lands, by failing to present its case before the board of review, the proper tribunal for adjusting such matters, it has lost the right to assail the assessment in the courts, unless it can show that the supervisor or the board of review acted fraudulently, or some -misconduct on the part of the supervisor amounting to fraud in law : Section 85, Tax Law 1882; Williams v. City of Saginaw, 51 Mich. 120; Porter v. Rockford, R. 1. & St. L. R. Co., 76 Ill. 598; Humphreys v. Nelson, 115 Ill. 45.
There was no tangible claim of any fraud or misconduct on the part of the supervisor to be deduced from the evidence. He acted honestly and in good faith, and did all that, under the circumstances, could be expected of any public officer. He was not required to perform impossibilities,and,in the absence of any showing whatever that his placing the wildlands upon the roll at the uniform rate of $6 and $1.50 per acre, according to their condition as to being cut, has in any way damaged the plaintiff, we are not disposed to hold such action as amounting to a legal fraud vitiating the roll. The plaintiff, by its agents, furnished the supervisor with affidavits, inform-’’ ing him of the descriptions of their “ cut ” lands, and, if dissatisfied with the assessment of the other parcels, should have gone before the board of review with their grievances, and had the values corrected. The object of the law is not to defeat a tax for irregularities or technicalities, but only when substantial injustice has been done. The action of the supervisor has not increased the taxes upon plaintiff’s lands, but, on the contrary, has lessened them. If he had listed and assessed these lands in the manner the plaintiff now claims he should have done, the values of its lands would have been much greater than they were as placed upon the roll. The plaintiff cannot be heard to complain of this: Case v. Dean, 16 Mich. 25, 26 ; Stockle v. Silsbee, 41 Mich. 615; Moss v. Cummings, 44 Mich. 359.
If this corporation were about to sell its lands, it would probably average the price per acre upon the whole tract, and there is not a seintilla of evidence tending to show that there was any particular difference in the value of the different parcels of the lands of this corporation, except as between the two classes of “ cut ” and “ uncut.” See Sawyer- Goodman Co. v. Township of Crystal Falls, 56 Mich. 597.
The fact that there was a difference between the value of hard-wood and pine lands in the township can have no Searing on the question here, without any showing that the lands of this corporation plaintiff were divided into hard-wood and pine, and that there was such a valuation of these as to make their assessment unequal and unjust as compared with the assessment of any such lands of the same quality belonging to others. There was no pretense of any such showing in this case.
The second objection to the tax is stated in the protest as follows: Township taxes were not voted by the electors, and were largely in excess of the amount required for the ordinary expenses of the township, and much greater than required for any legitimate purpose, and were intended for the payment of specified salaries to township officers of a large amount and not authorized by law.
The electors failing at the annual township meeting to raise the necessary amount for township or contingent expenses, the township board, at a regular meeting, held October 2, 1884, voted $4,000 for that purpose, which amount was passed upon and approved by the board of supervisors at their October session of that year.
It is claimed that the township board had no power to vote the same on or after October 1st, because the statute provides that the township clerk shall, on or before the first day of October, make and deliver to the supervisor a certified copy of all records of any vote directing money to be raised thereon for taxation for township purposes : Section 23, Tax Law 1882.
The statute authorizing the township board to vote moneys to defray township expenses when the electors have neglected to do so, does not specify at what time, or within what time, such vote shall be taken. It is only necessary that it be at a regular meeting : How. Stat. § 750.
The object of the requirement that the township clerk shall furnish the supervisor with a certified copy of such vote, is for the purpose of delivery of the same by such supervisor to the clerk of the board of supervisors on or before the second Monday in October : Section 23, Tax Law 1882.
The information contained in this certificate is not for the use of the supervisor, but for the board of supervisors,who act upon the certificate. He is but a mere instrument of conveyance. The board of supervisors, as shown by the record, had the certificate of this vote, and acted upon it. It seems to me to be a sufficient compliance with the statute. The object of the statute was accomplished when the certificate was presented in due time to the board of supervisors, and they approved the-levy, and the clerk of the board gave the necessary certificate to the supervisor to levy the amount. There is no express or implied prohibition in the statute against this action of the township board. The board of supervisors also had jurisdiction. The tax cannot be defeated for a mere irregularity not affecting the jurisdiction of the bodies imposing the tax : Section 85, Tax Law 1882.
The certificate could be executed and delivered by the clerk after the first Monday, if it was in time for the second Monday, in October: Smith v. Crittenden, 16 Mich. 155. There is no evidence tending to show that this money was voted for the purpose of illegal expenditures, and the circuit judge was correct in so charging the jury.
Evidence was introduced for the purpose of showing an illegal expenditure of the money raised the year before, but, even if such money had been used for illegal purposes, it had no tendency whatever to prove that a town board, composed of different persons than the one for the jmar before, intended to follow in their track : Wright v. Dunham, 13 Mich. 414.
It appears that for the year 1883 there was a liquor tax collected in the township of $4,181.75, and in 1884 of $3,517, all of which, except $297, was paid in May of that year. It was shown that out of this liquor tax, which by law goes into the contingent fund, there was paid in the year 1883 quite a large amount for the services of a night-watchman in the village of Crystal Falls (not organized, but a part of the township), and for building sidewalks, and in 1884 for the services of the watchman, but not for sidewalks.
We are not prepared to say that the expenditure for a night-watchman is an illegal one. From the amount of money paid in for liquor tax there seem to have been from ten to twelve saloons in this village of Crystal Falls, which contains about 700 people, and is situated in a mining and lumbering community. It will be seen at once that the very presence of the places from which this large revenue is derived necessitates an increase of police force, and an unusual watchfulness to preserve the peace and property of the citizens of the township; and there is no instrumentality through which this can be done, save private organization, other than the local township government.
It is unnecessary to pass upon the legality of using the contingent fund to build side or cross walks, as the absence •of any expenditure for that purpose in 1884 would certainly look as if it was not intended to be continued in 1885, although it was so used in 1883.
But it is urged that one of the township board testified that in estimating the sum to be voted for 1885 they did not take into contemplation the liquor-tax fund, as they intended to use that for the purposes of building walks and paying a watchman. But there is no allegation in the protest that any taxes were voted for this purpose, the illegal use , being confined to the payment of illegal salaries of township officers.
As before shown, the only right to sue for a payment, which would have been voluntary and not recoverable in this action except by force of the protest under the statute, rests entirely upon the protest; and, in the language of the statute, the tax must be shown to be “ illegal for the reasons specified in the protest:" Section 42, Tax Law 1882 ; Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 79.
The question of salaries, as raised in this record, does not differ from that brought before this Court in Sawyer-Goodman Co. v. Crystal Falls Tp., 56 Mich. 600, and must be governed by the decision in that case.
If, by reason of this alleged illegal expenditure of the contingent fund in 1883, or by an illegal or unauthorized loan, as claimed, to the highway fund, it became necessary for this township to raise more money for legal éxpenses than would otherwise have been required, such levy does not thereb}' become invalidated by the taint of last year’s fraud' or illegality. “ If so, a single misappropriation of money would lose all power to levy and collect taxes thereafter :" Wright v. Dunham, 13 Mich. 415.
We think the court below was right in instructing the jury that the plaintiff had failed to adduce any testimony tending to show this levy of $4,000 to be void or invalid.
The objections to the highway tax are two, namely:
First. The highway taxes were not authorized by the vote of the electors, nor by any officers having authority to levy the same.
Second. There are no highways in any of the surveyed townships where said lands (of plaintiff) are located, and no-highway taxes could be lawfully levied thereon.
The first objection is based upon the same claim of invalidity made against the voting of the contingent fund, to-wit, that it was voted by the township board upon the second day of October. The highway taxes, upon certification-by the township clerk, are dealt with thereafter, as to presentation to board of supervisors and their action and approval, and the certificate of their elei’k, the same as are the contingent or township taxes, and therefoi’e are governed by what has heretofoi’e been- said in this opinion as to the same objection to the township- tax in this case.
The evidence shows that in two of the townships there wei’e no roads at the tixne of the vote to- raise the money for highway purposes, but there was ixo showing that roads were or might not be needed in such townships during the year' for which the taxes were levied, and it clearly appeared that the intention of the township board was to- expend the money so levied in the townships whex-e the money was raised, the money assessed upon the lands i-n any one township to be expended upon the roads in that township. There appears to have been no departure from fair dealing in the levy of this tax, and the fact that there were then no roads in these townships will not invalidate the tax: Sawyer-Goodman Co. v. Crystal Falls Tp., 56 Mich. 599.
The further fact that roads have been laid out in these townships without the legal requisites to acquire the use of the lands from the owners, and that highway moneys have been expended thereon, and are intended to be so used in the future, will not necessarily void the levy.
As long as these roads are used and treated as highways, with the consent or without any objection from the persons interested in the lands over which the roads pass, the tax can be legally used for the purpose of improving and keeping them in repair.
Highways can be acquired by user as well as by proceedings under the statute. It would be a singular rule to establish that no highway funds could be used to work a road not legally laid out under the statute, when no land-owner makes any complaint, or puts any obstacle in the way, of the public passage over his premises. It would prevent the very user which the law provides may be substituted, by sufficient time of such use, for the statutory proceedings to acquire title to a highway.
It appears from the evidence that many of these highways, being in the first instance private roads to mills and mines where there were settlements of the people engaged in labor there, have been adopted as public roads by the consent and also request of the land-owners. If thus used for ten years or more, they would become public highways without any proceedings under the statute. It appears that the moneys in other years expended upon these roads have been so expended at the special instance and request of the large corporations doing business and owning taxable property in the township, the plaintiff corporation being among the number. It seems that having obtained the building of roads by the public moneys to their places of business, for their benefit, they seek now to take advantage of an alleged wrong, to which they were parties, as a fact tending to show a contemplated continuation of the same wrong in the future.
While this course upon the part of these corporations does not commend itself to the Court, it is also a fact to be noticed that, although this has been done in the past, there is no evidence tending to show that the township officers, in voting the tax under consideration here, intended to be persuaded oiled into any such action in the future. There is nothing to show that the money raised in these townships was not intended for the honest building and repairing of needed roads ; nor, considering the extent and character of the township, and the business of its people, do we consider such levy by any means excessive.
We do not consider it necessary to notice in detail the exceptions taken upon the trial to the admission of matters offered in evidence. Most of them were legitimate matters, relevant to the issue, and those not relevant of such a character that their admission could not in any way have affected the result.
Upon the whole case as made, or upon the'case as it would have stood without such matters in evidence, the court could have done no less than to instruct the jury, as he did, to find a verdict for defendant.
The judgment is therefore affirmed, with costs.
The other Justices concurred.
How. Stat. § 750. “ Whenever the qualified electors of any township, at the annual township meeting, shall neglect or refuse to vote such sum or sums of money as may be necessary to defray the ordinary township expenses, the township board of any such township is hereby authorized, at any regular meeting, to vote such sum or sums as may be necessary for that purpose, not exceeding such amounts as are, or may be limited by law.”
Amended by act No. 60, Session Laws of 1887, p. 66, so as to limit the amount to be raised in any one year to one thousand dollars.
How. Stat. p. 1272, § 23. “It shall be the dutjrof the township clerk of each township, on or before the first day of October of each year, to make and deliver to the supervisor of his township a certified copy of all statements and certificates on file and of all records of any vote or resolution in his office authorizing or directing moneys to be raised therein by taxation for township, school, highway, and all other purposes, together with a statement of the aggregate amount thereof; and such certified copies shall by such supervisor be delivered to the clerk of the board of supervisors of the county, on or before the second Monday of said month, and the same shall, by said county clerk, be laid before the board at its annual meeting, and filed in his office.”
Section 23 of act 153, Session Laws of 1885 (our present tax law), is a copy of the above.
It was held in Robbins v. Barron, 33 Mich. 124 (approved in Upton v. Kennedy, 36 Id. 215) that action by the board of supervisors under How. Stat. § 1031, authorizing the levy by the township of taxes for the amounts certified by the town clerk under section 1026, was not essential to the validity of such levy. It will be.seen that the power and duty of the board of supervisors in acting on such certificates are largely increased by section 24, Laws of 1882 (How. Stat p 1272), and section 24, Laws of 1885, p. 184; but what effect these changes have, if any, upon the law as laid down in the cases cited, is perhaps an open question. | [
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Campbell, C. J.
Complainant, who was once wife of defendant Streseveski, but against whom he obtained a divorce for adultery with her present husband, filed a bill to obtain partition or sale of a lot of land in Detroit, which she claims was held by him and herself jointly, under an executory contract from defendant Burton. The court below gave her the relief prayed, and defendant Streseveski appeals, claiming that the contract was made with him solely, and that she never had any interest in it.
It is admitted that the contract was originally made -to him alone. About nine months afterwards complainant, as she testifies, went to Mr. Burton, who represented Hattie J. Burton, and had her name inserted as a joint vendee. Mr. Burton testified that he did not remember distinctly, but thought both were present. Her testimony shows the contrary, and so does that of Streseveski. There is some testimony that, upon being told what had been done, Streseveski acquiesced, and it is shown that she as well as he made payments thereafter. But it is also clear that the money she paid was the money obtained in his business. The utmost that can be claimed is an apparent acquiescence in the change, based on no consideration. "We do not think that there was even any sueh .intelligent acquiescence. Streseveski was unable to read or write, and it would require stronger evidence in such a ease than if he could have read and understood all the papers whieh were executed or received. There are no moral equities to be raised in her favor, when 6he was living in violation of her marriage duties, and used her husband’s money to make all the payments. She says that he authorized her to have the change made in the papers. We do not believe that he did.
We have only referred to the facts, to determine how far Streseveski is morally or otherwise responsible for leading her into paying money for him on his land contract, and we do not think he did. But, so far as the land is concerned, he could not, under the statute of frauds, have his title divested by verbal authority, or by the mere payment of money, and the change in the contract was unauthorized and void.
Had it been made as claimed by complainant, some legal questions would have arisen concerning her right to relief which are very serious, and which we are not disposed to discuss where there is no occasion for it. We think her claim without any legal or moral support, and she has no claim to equitable intervention.
The decree must be reversed, and the bill dismissed, with costs in favor of Streseveski against complainant in both courts.
Morse and Champlin, JJ. concurred; Sherwood, J. not sitting. | [
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Per Curiam.
Chilson was defendant in a replevin suit commenced before a justice. He pleaded to the jurisdiction that the value of the property claimed was $200, and that, therefore, the justice had no jurisdiction. Issue in fact seems to have been taken on this plea, and testimony heard; but afterwards the justice overruled it, and Chilson refused to plead further. Plaintiff finally recovered judgment Upon special appeal the respondent refused to order a trial upon the plea to the jurisdiction, and mandamus is asked to require -him to do so.
In Henderson v. Desborough, 28 Mich. 170, it was held that when the affidavit in replevin made out a case within a justice’s jurisdiction, the justice could not dismiss the ease upon its appearing on trial that the property was worth more, and not worth $500.
As it has always been held that a justice loses jurisdiction when a case is made out beyond it, that case is authority that where the value falls short of $500, which is the constitutional limit, the jurisdiction continues, and if the defendant prevails he can recover the value of the property if not beyond that sum. In deciding that case the language was somewhat guarded, and did not, in express terms, preclude a plea in abatement. But such was its practical effect, as no such plea was ever necessary to destroy the jurisdiction of a justice depending on the sum in controversy, if shown on the trial to be excessive.
No harm could come to the defendant by such a ruling, for if the case should be dismissed for want of jurisdiction his only valuable remedy would be a judgment of return ; and if $100 is the absolute limit of a justice’s jurisdiction in replevin, it might be difficult, without further legislation, to obtain relief if the property cannot be had. Under the rule in the ease cited, the full value can be assessed and judgment given for it. The jurisdiction attaches according to the claim of the affidavit, and, having attached, continues to judgment, at least up to $500, which more than covers this case.
The mandamus is denied. | [
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Champlin, J.
The plaintiff, on the thirteenth of March, 1883, brought replevin to recover possession of 1,276 felled cedar trees, 30 pieces of cedar, and 6 pine logs, cut from the N. i of the N. W. ¿ of section 36, in township 12 N., range 10 E., Michigan.
He introduced in evidence on the trial a deed bearing-date “ the second day of July, in the year of our Lord,” but not naming any year; the evidence, however, tended to-show that it was delivered in the year 1870. This deed conveyed the land above described to Loretta M. Rumble, and immediately after the word “ Michigan ” contained the following words: “excepting timber therein.” The evidence shows that there was at that time standing and growing on the land conveyed, timber of the following varieties : Pine, cedar, hemlock, black ash, and chestnut. Some four or five years after the date of the conveyance plaintiff sold all the pine timber on tlie land to Stevens, Fowler & Holland, who eut and removed the most thereof.
The defendant Baldwin acquired title to the land above described by a warranty deed from Mrs. Rumble to Mr. and Mrs. Poole, executed in May, 1871, and a warranty deed from them to him before he cut the timber in question
There was testimony introduced upon the trial having a tendency to prove that the plaintiff, after the execution of the deed to Mrs. Mumble, who had then sold the land by warranty deed, in an interview with Mr. Mumble, who made the bargain for the purchase on behalf of his wife, agreed that he was to have five years in which to take the timber off; and that afterwards, some dispute having arisen with reference to plaintiff’s right to the timber, there was an agreement made by which plaintiff’s claim to the timber was fully settled and ended. Both of these transactions, if they occurred at all, transpired between Mr. Bumble and the plaintiff long after Mrs. Mumble had sold to the Pooles, and also several years after Mumble had separated from his wife, and they were living apart. Mumble had no interest whatever in the land or the timber, and no privity or connection whatever with the title or covenants of the deed to the Pooles. He was not authorized by his wife or any other-person to make any arrangements with plaintiff with reference to the timber, or to settle his claim against the timber. What he did, by his own testimony, was as a mere stranger and volunteer, and his acts have never -been ratified or sanctioned by Mrs. Mumble or any other person interested in such action.
His testimony concerning these transactions was admitted against the objection of plaintiff’s counsel, and was submitted by the court to the jury, with instructions that from it they could find an agreement by which the plaintiff agreed that the timber should be removed in five years; and also that they could find that Mr. Mumble, for Mrs. Mumble, had a final settlement with plaintiff of his claim to the timber.
I think the court erred in receiving the testimony of Mr. Mumble upon these two points, and in submitting it to the jury. There was no agency proved, or attempted to be proved. There was no privity of contract established between Mrs. Mumble and plaintiff, and he was .not bound by any such agreement or settlement as Mumble asserted was made, and which plaintiff denies was made,
This is not a case of a sale of land, excepting therefrom the timber, which is to be removed within a certain specified time, or of the sale of timber to be removed within a fixed period ; in which cases it has been held that the limitation of time entei’s into the contract of sale, and the reservation or sale applies to such timber only as is removed within the time limited; and that no title is retained in the one case, or passes in the other, to any timber which remains upon the land after the time agi'eed upon for its removal has expired.
Hei’e, in the deed granting the land, the timber thei’eon is excepted from the gi’ant. The title to the timber remains in the plaintiff, who, by the transaction, has an implied power to enter, fell, and take away the timber: Boults v. Mitchell, 15 Penn. St. 371, 379 ; Wood v. Leadbitter, 13 Mees. & W. 844; Thomas v. Sorrel, Vaughn, 330, 351; Hewitt v. Isham, 7 Exch. 75 ; Pierrepont v. Barnard, 6 N. Y. 279.
Plaintiff’s title to the timber arising from the exception in the deed is of the same binding force and effect as if the whole estate had been granted by the deed, and then Mrs. Rumble had executed a deed to plaintiff of all the timber upon the land; in which case the plaintiff’s right to enter upon the land, and cut and remove the timber at pleasure, would have passed as an incident of the grant, and could not have been revoked by Mrs. Rumble so as to defeat her grant, to which the right was incident. It is essential to the enjoyment of the property, and as such enters into the property rights of the plaintiff in the timber by the assent of both parties. Such a right, where there are no words in the contract showing a limitation of the time of enjoyment, or within which it shall be exercised, is not revocable, nor can it be terminated at the will of the owner or grantee of the land, nor by notice to remove the timber in a reasonable time. The right to enter and remove the timber under the exception contained in this deed does not rest upon the notion of a license from the grantee, but as being connected with the exception as an incident to its enjoyment, and is an interest in the land itself to that, extent.
This being so, the subsequent purchasers from Mrs. Rumble took the title with full notice of what appeared in the deeds forming the chain of title through which they claim, and are entitled to no protection as innocent purchasers. Plaintiff owned the timber, and could maintain replevin for the trees when severed from the land without his permission or authority. No doubt the plaintiff could give a license by parol to defendants to sever the trees, and if he did so, and it was executed before it was revoked, it would be binding upon him: Pierrepont v. Barnard, 6 N. Y. 279. But the case was not defended or submitted to the jury upon this theory.
The judgment must be reversed, and a new trial granted.
Morse, J. concurred. Campbell, C. J. and Sherwood, J. concurred in the result. | [
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Sherwood, J.
The defendant E. T. Barnum Wire & Iron Works was a corporation, having a capital stock paid in, prior to February, 1884, of $279,750.
At that date the company consisted of fifteen stockholders, among whom were the defendants Lucetta R. Medbury, William Gr. Thompson, Charles H. Thompson, and Henry M. Duifield, the last named having purchased his stock, consisting of $5,000 worth, on the twenty-sixth day of January previous.
Some time subsequent to February, 1884, the capital stock seems to have been increased $100,000, and the new stock was taken in April or May, 1884, by defendants Brace, Hall, Croul, Yernor, and others. Shortly after this, Charles Bewick was given some charge over the affairs of the company, and, during his investigations of the concern, discov ered that the company was insolvent, and made report of the fact. This soon became known, and defendants above named, Thompsons, and Medbury, and two creditors, John B. Lee and George G. Morris, besides the appellant in this case, commenced attachment suits against the defendant E. T. Barnurn Wire & Iron Works.
Most of these suits were commenced to recover back money the plaintiffs had been induced to pay the company for its unissued or treasury stock, purchased, as they claimed, upon the fraudulent representation of the president of the company, under which several attachments all the personal property of the corporation within the city of Detroit was levied upon. The claims for which the several suits were brought amounted in the aggregate to the sum of about $80,000.
Lee’s claim was for money loaned to the company, he taking treasury stock as security. His claim was not yet due according to its terms, but he claimed to repudiate the contract on the ground of fraudulent representations concerning the stock, and treat his debt as due from the date the company received his money. The Morris debt was for goods sold to the corporation. His attachment was the last one levied, and the appellant’s was the next preceding it.
The effect of these levies was to suspend work and sales by the corporation at its manufactory, and on the twenty-eighth day of July, 1884, thereafter, the E. T. Barnurn Wire & Iron Works made an assignment for the benefit of its creditors to Abram L. Stebbins, of the city of Detroit, and filed the instrument, with schedules attached, in the office of the clerk of Wayne county.
Stebbins accepted the trust in writing, but neglected to file the required bond. Thereupon the complainants above named, who were creditors to the amount of about $30,000 each, filed the bill of complaint in this cause for the appointment of a receiver pending the final determination of the attachment suits. All parties consented to the appointment of Stebbins as receiver, and he was accordingly appointed and gave the requisite bond, with D. Whitney, Jr.', S. J. Murphy, and Nancy L. Avery as sureties.
The attached property was turned over to the receiver by the sheriff, but under the terms of the order that the lien of the attachment was not to be impaired thereby; and it was tacitly understood that the suit of William H. Brace should be the first one tried as a test case. The appellant claims, for the purpose of preparing for trial it was necessary for the plaintiffs to have access to the books of the corporation to show the financial condition of the company at the time the claimed false representations were made, and at the time the attaching creditors purchased their stock, but they were denied this privilege until it was ordered by the court.
That subsequently all the attaching stockholders, except the appellant, and all the other stockholders who claimed to have been defrauded into subscribing for the stock, except two, formed a syndicate to obtain the possession of the assets of the corporation by a purchase of the debts at fifty cents on the dollar, and the claims of those two were purchased under the direction of the syndicate, and in its interest.
That the receiver was fully aware of the organization of the syndicate, and of the meetings of its members prior to its organization, and furnished to them through his counsel, Mr. Holbrook, a full statement of its assets and liabilities, according to which the assets Avere $37,000 over the liabilities, and the cash assets were $6,000 in excess of fifty per cent, of the unsecured debts; and' that during the same period the receiver intentionally omitted to file quarterly reports as required by statute, and never filed any inventory whatever; and, further, that the syndicate were to retain him as general manager for at least a year after the reorganization.
The appellant further claims that no creditor or stockholder of a date of the alleged fraudulently obtained subscriptions was given an opportunity or allowed to join this syndicate, except D. Whitney, Jr.; that be was a director and stockholder to the amount of $10,000 before and at the time the attaching stockholders subscribed for their stock, and had as a director declared, and as a stockholder received, dividends on his stock within less than a month of the failure ; that he also claimed to be a secured creditor for more than $60,000, and an unsecured creditor for about $30,000, proofs of debt of both of which claims he had filed in the matter of the assignment; that Whitney was also the principal surety on Stebbins’ bond, which was for $150,000, and before signing this bond as surety, and as an express condition to such signing, Whitney required that Stebbins should select for his counsel as receiver D. C. Holbrook, who was, and for many years had been, Whitney’s confidential legal adviser and counsel, as Stebbins well knew; that Holbrook was also Stebbins1 personal counsel, and was so chosen, being substituted for F. H. Canfield, who’had been attorney for the company ; that under Holbrook’s advice the above-mentioned application for an examination of the books was resisted ; that up to the time of the formation of this syndicate, which was in February, 1885, the receiver and the corporation contested all of the attachment suits.
That the appellant, Dufiield, declined to join the syndicate or sell his claim for less than the amount thereof, and thereupon a meeting of the directors of the company was called, at which a majority of the directors present were members of the syndicate, and a resolution was adopted requesting the receiver to withdraw the defense in all the cases except that of Dufiield, and no further defense was made to them; that this course was taken under the advice of Holbrook.
That Morris’ attachment at this time had been put into judgment, after a contest, and the receiver was resisting payment thereof, and that judgments were allowed to be taken in the other cases,except the appellant’s, for the full amount of each claim; and when appellant applied to have his case take the same course, the receiver replied through his attorney, Mr. Holbrook: “ Mr. Stebbins deemed it his duty to defend your suit until otherwise instructed by the parties most interested.”
Thereupon the appellant filed his petition in this case, set ■ting tip substantially the foregoing facts claimed and stated,and in addition avers that David Whitney, Jr., not only claims to be a creditor of the corporation to the amount of $148,000 and interest, and that $60,000 is secured by a land contract for' the lots on which the corporation’s factory is erected, but was, at the time the petitioner contracted for his stock, and «till is, a director of the corporation, and a stockholder to the ■amount of $20,000 ; that he is also the principal surety on the receiver’s bond, given for $150,000.
That as soon as the receiver was appointed he selected as his attorney and counsel the said Holbrook,who had for more than 15 years been said Whitney’s legal and confidential adviser, and «till is, and that Mr. Canfield, of the firm of Moore & Canfield, was the attorney for said corporation up to the time of the assignment, and also the legal adviser of Philo Parsons, its vice-president, and E. T. Barnum, its president, and was also counsel with Holbrook for the receiver.
That they were all laboring for the interest of the syndicate, which was endeavoring to buy up the claims against the company at 50 cents on the dollar, and organize a new company to take the assets, and advance 150 per cent, on the amount of the stock held by each for that purpose, but which it was understood was to be repaid as soon as the syndicate was able to get up the indebtedness at the sum proposed, and receive an equal amount of stock in the new organization as each held in the old corporation; and that it was understood the attachment suits should be used as inducement to compel creditors to accept the compromise of 50 cents on the dollar of their claims.
That said Whitney was given great advantage and preference in the reorganization, and that the receiver was cognizant thereof, and in collusion with the syndicate, and that he lent his knowledge and experience in the conduct of the business to aid such new organization; that he and Whitney were active participants in the furtherance of the designs of the syndicate, and that the actual condition of thecorpor.ation was concealed by the receiver from the general credi tors in order that the prosecution of the work of the syndicate might be more effectually carried on.
And it is further averred in the petition that Holbrook and Canfield were not proper persons to be employed as attorneys and counselors for the receiver; that they were used really in the interest of the syndicate, and not in the interest of creditors; that the claims of the other attaching creditors rested upon the same facts as did the appellant’s, and there was no reason why he should not have been allowed to take his judgment at the time the others took theirs, and that the refusal to allow him to take such judgment was only for the purpose of punishing appellant for refusing to come into the agreement to compromise his claim for 50 cents on the dollar ; and that the receiver and directors fraudulently connived and conspired together and allowed the judgments to be taken for that purpose, and to cheat and defraud him and the other creditors of the company.
And it is further charged in the petition that the receiver sent over to Chicago a third party, in the interest of the syndicate, and bought up the assets of the corporation there for 25 cents on the dollar of their appraised value, to the prejudice and in fraud of the rights of the creditors, and that the sale ought not to stand or be approved; and that it is doubtful whether there are sufficient assets covered by the attachments preceding his, and including the property on which his is levied, to pay all, including his claim, by reason of the improper management of the receiver, and he is therefore prejudiced and deprived of his just rights by the consent of the receiver given permitting the taking of said judgments.
The prayer of the petition is as follows:
1. That the said Abram L. Stebbins be removed as receiver, “ and some proper and impartial person appointed in his stead.
2. That, pending the determination of the matters alleged in this petition, said Abram L. Stebbins be directed not to-make any payments or promise of payment, or deliver any property, or execute any paper, to said attaching defendants upon -any of the judgments above named, or on account of the claims upon which said judgments are formed, or on any account whatever.
3. That said attaching defendants show cause, on a day to be named in the order, why they should not be commanded to set aside their said judgments as obtained by collusion with said company and said receiver, and in fraud of the rights of the general creditors and stockholders of said company.
4. That, pending the determination of the matters set forth in this petition, said Abram L. Stebbins, receiver, be directed not to pay any moneys, or deliver any property, or execute any paper, in favor of any syndicate, or trustees for or members of auy syndicate, rrpon any claims purchased of any creditors, or in any way, manner, or form to disburse any moneys,except for strict running and proper current expenses.
5. That if for any cause full relief, as prayed in this petition, cannot be granted under the prayer of a petition, but should be prayed for in an original bill filed for that purpose, then that such relief as is possible to be given under this petition beso granted, and that leave be granted to petitioner to file the proper bill in this honorable court for such purpose.”
Added to the above was the prayer for general relief.
Separate answers were filed to the petition by defendants Brace, Hall, Medbury, Croul, Vernor, Thompsons, Lee, and the corporation.
The answer of the receiver states substantially, after admitting several things stated in the petition, and denying others, that he “ has nothing to do with the subject-matter of the several agreements among the attaching stockholders; that he is no party to any syndicate, has not confederated with or been a party to any of the schemes mentioned in said petition, nor in any way assisted any party therein, nor advised the carrying out of any project or scheme; that he has never attended any of said conferences or meetings, nor has his solicitor on his behalf taken any part therein, nor was he then, nor is he now, interested therein in any way ; that all he has done was to furnish certain statements of the assets of said company; and he alleges he has furnished and exhibited similar statements to all when desired, and particularly to Emory Wendell, Moore & Moore, and Douglas & Bowen, attorneys for many creditors; that he has never sliown any favor to any one person more than to another; that he has never furnished any money to anyone or for any purpose except to carry on such business as he is permitted by the order of the court. He denies in detail the allegations about the sale of the Chicago assets; avers he has on hand over §390,000 in bank, and is advised petitioner has only to establish his right to recover and he will be entitled to be paid his claim in full. As to the said judgments, he says the directors by resolution declined to further defend the suits mentioned, and thereupon, being thereto requested by the holders of 19-20ths of the indebtedness, he gave instructions to the attorneys that he did not desire to make any further defense; that he is advised by his solicitor that, without the further order of the court, he cannot pay said judgments nor •any other claim, nor does he intend to pay out any money •except by the authority of' the court.”
In the view we take of the matter it will not be important to refer to the answers of the other defendants in the case. A large amount of testimony was taken.
The petition, with the several answers made and testimony taken, was submitted to Judge Speed, who caused to be •entered an order denying the relief asked by the appellant, •and dismissing his petition; but containing the following •clause:
“And it appearing from the proceedings in this cause that the same is necessaiy and proper, it is further ordered and •decreed that Hoyt Post, Esq., be, and he is hereby, designated •and appointed as attorney and counsel for the receiver in this cause.”
The petitioner, on his appeal to this Court, insists the circuit judge erred, as follows :
1. Upon the showing made, he should have removed the receiver;
2. In refusing to order the attaching stockholders, who had obtained consent judgments by collusion with the receiver, to set the same aside;
3. In refusing any relief in the case, and dismissing appellant’s petition.
We have no doubt but that the proceeding taken is a proper one to obtain the relief prayed, provided the appellant can show that he has interest which would be injuriously affected by the alleged illegal acts complained of.
A receiver is not appointed for the benefit merely of a party on whose application the appointment is made, but equally for the benefit of all persons who may establish rights in the case. He is not the complainant’s agent, but should be equally the representative of all the parties in his capacity as an officer of the court: High Rec. §175; Delany v. Mansfield, 1 Hogan (Irish Rolls Ct.) 234.
The exercise of the power to remove a receiver for causéis regarded as a matter properly resting in the discretion of the court, and must necessarily be governed by the circumstances of each particular case, and, as an officer of the court, the receiver should remain unbiased and impartial, or be removed. The position is one often requiring the exercise of soundest judgment, and always the strictest impartiality among creditors: High Rec. §§ 820, 821; Williamson v. Wilson, 1 Bland, 418; 2 Daniell’s Ch. 1715, and cases cited; 5 Wait’s Act. & Def. 353, 381 ; Iddings v. Bruen, 4 Sand. Ch. 417; Davis v. Gray, 16 Wall. 217, 218; Delany v. Mansfield, 1 Hogan, 234; Ellicott v. United States Ins. Co., 7 Gill, 307; Attorney General v. Life, etc., Ins. Co., 4 Paige, 224; High Rec. § 264: Edw. Rec. 110; Merchants' & Manufacturers' Nat. Bank v. Kent Circ. Judge, 43 Mich. 297; Adams v. Woods, 8 Cal. 306 ; First Nat. Bank Detroit v. Barnum Wire & Iron Works, 58 Mich. 124, 315; Ryckman v. Parkins, 5 Paige, 543.
If it were necessary for us to consider all the testimony taken in disposing of the case, or to pass upon the necessity of removing the receiver, and of the sufficiency of the showing therefor, in order to preserve the rights of Col. Duffield in the premises, we should find much difficulty, under the authorities above noted (and which contain the law upon the subjects treated), in doing so, without finding a case made entitling the appellant to the order prayed for in his petition ; and, while we agree with the learned circuit judge in the action he took in appointing an attorney for the receiver in the place of those who had been acting as such for him, we should feel compelled to differ with him in several other conclusions he.has reached, contained in his written opinion filed in the case,- as to the character of the action of the receiver and that of the other defendants.
The answer of the receiver to the petition of the appellant shows, and it was not sought to be controverted in the argument upon the other side, that the receiver has in bank the sum of $90,000, and that he is ready and willing, and is advised it is his right, to pay the appellant the full amount of his claim as soon as an adjudication thereof can be had, and that moneys are set apart under the order of the court for that purpose.
Again, the petition was filed in behalf of the appellant and such other creditors of the corporation as might come in and make themselves parties thereto. None, however, it seems desired to avail themselves of the opportunity to ask for the removal of the receiver, and we have been unable to find in the record any evidence that any others of the creditors of the company desire the removal of Mr. Stebbins, and, in the absence of any such showing, we think it must be presumed that they are satisfied with his action and proceedings.
Under the circumstances, we think that all the appellant can ask in the premises is payment of his debt in full when he shall have established it in such manner that the receiver can make payment in safety. This he already, under the action of the court, has secured to him, and this is the extent of his interest in the matter, and we are unable to discover that it is in the least prejudiced or impaired by a continuance of Mr. Stebbins in the receivership, and so long as all the rest of the creditors are satisfied it would be unjust to them to remove him..
The action of the circuit judge must therefore be affirmed, and each party must pay his own costs.
The other Justices concurred. | [
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Sherwood, J.
The bill of complaint in this cause is filed to establish a lien upon a house and lot in the city of Grand Rapids, and foreclose the same as a mortgage, said lien being for the purchase money of the property.
The circumstances out of which the transaction arose, were substantially as follows:
The complainant is an old man about 68 years of age, and feeble. The defendant is a divorced lady about 35 years of age.
Previous to 1882, the complainant had lived alone for about 18 years, was poor, and earned his living mainly by his own labor. The record shows him to be a man of good intelligence, and of a very kind and benevolent disposition, and confiding in his nature. The parties became acquainted with each other eight or nine years before the hearing, at the house of an uncle of defendant’s, in Jennisonville, Ottawa County, where complainant was boarding at the time. He had no family except a daughter, who was married and resided in Cleveland, his wife having obtained a divorce from him about 14 years before. The defendant had also been unfortunate in her marriage, had separated from her husband, and was then living in the family of her uncle, with whom she had formerly made her home. The parties were much together there, and became interested in each other. “A social, friendly relation sprang up between them,” and they greatly sympathized with each other in their troubles and loneliness; and they finally arranged that the}7 would, in the future, keep house together, and that he should treat her as his daughter, and she him as a father, and that they would maintain themselves by keeping boarders; and from this time on they seemed satisfied with the arrangement, visited each other frequently, and frequently corresponded. He made presents and frequently gave her money, dividing with her his scanty earnings, as he thought she needed it; had his life insured for her benefit; and, feeling that he had secured in her a friend, and having made such arrangements as would provide for himself and her a home, and such care as would be needed to make him comfortable in his old age, he told her he would make her eventually his heir, would take care of her to the best of his ability, and should expect, and depend upon, her kindness and care in case of his sickness and his approaching helplessness; to all of which she, in the strongest language, gave him her consent and assurance,
In December, 1881, he received a legacy of $2000. Ho had told her that he expected it, and had promised her a watch and chain when it should come, which he subsequently gave her. He deposited $1900 of this money in bank. She knew he expected to get this money, and knew that he did get it. He consulted with her, and told her his plans about investing it. First told her that he would loan it on a mortgage on farm property ; then came to the conclusion that, as his health was failing slowly, but surely, he would leave it in the bank at bank interest, but she said : “ You can make more of it by putting it out.” Then she proposed-to him to buy some property in Grand Rapids, He looked at some pieces of property that he did not want, and then told her that he would rather the money would lie in the bank; but he saw that she was very anxious about it, and finally told her, he says, like this:
“ Look around, and if you think we can do better, or I can do better, by putting this money out, buying property,— well I will look it over and see what I think of it myself.”
He then says:
“ She looked around, and found this place, and wrote to me to come up and look at it. I came up and looked at it, and thought it was worth the money.”
After looking at the property, he talked the matter over with defendant at the depot, and told her, uper7iaps we better buy it/” and took out of his pocket a certificate of deposit for $1500, indorsed it over to her, and told her to draw the mouey on it, and pay for the property. She did not complete the trade at once. A discharge of a mortgage, which was held elsewhere, had first to be obtained, and the complainant again came to the Rapids, where the defendant was at this time employed in a millinery store, and she returned to him the certificate to draw the money for the purchase price of the property. He then had the deposit changed into two sums, and brought to her a certificate for $1100, and left it with her to pay for the property when the discharge of the mortgage should come.
When the arrangement was made to purchase the house and lot, the defendant suggested to the complainant, if it was his intention that she should have the property when he died, she would prefer thatthe deed should be made to her, and that she would give him a mortgage upon the property for $1100, which would be a security for his maintenance and support, and it was arranged between them that this should be done. After his return to Grandville, where he was then staying, the deed was received and the purchase completed. She at once rented the property for a year at $12 per month. It was occupied, however, only from August until March, when the parties moved into it themselves. Some considerable improvements were made upon the propei’ty before they moved into it, for which the complainant paid over $100. He continued to live in the house with the defendant about eighteen months. As soon as she obtained the deed, the complainant endeavored to get her to execute to him the promised mortgage, but- she constantly put it off upon one pretext and another, and finally neglected and refused to give him any lien upon the property whatever; but on the twenty-third day of June, 1883, without the knowledge or consent of the complainant, mortgaged the property to another for the sum of $300.
The complainant, failing in all his efforts to get the lien to which he was entitled, and the defendant refusing to recognize her obligation in the premises, on the fifth day of July, 1884, filed his bill of complaint in this cause.
The defendant answered, denying the agreement to give the mortgage, or that the complainant is entitled to any equitable relief against her.
A large amount of proofs were taken in the ease, which was heard before Judge Montgomery, (the proofs having been taken in open court) who rendered a decree granting: the relief prayed in the bill.
We have examined the record, and, without referring in detail to the evidence, must say that we regard the failure of defendant to comply with the request of complainant as unconscionable. We think the complainant’s statement in. regard to the transaction between the parties, fully sustained by the facts and circumstances disclosed in the proofs.
The decree made by the circuit judge is in all things right, and must be affirmed, with costs. ^
Campbell, O. J. and Ohamplik, J. concurred; Morse, J. not sitting: | [
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] |
Campbell, C. J.
Plaintiff sued defendant for the price
of a house and lot sold, and not paid for, except in part. The transaction was had more than six years before suit brought; but, if valid, was kept alive by payments within that time. Some controversy, and apparently the most obstinate, arose out of the claim that such a cause of action could not arise under the common counts. But it is familiar doctrine that an action will lie, under the common counts,.for a sum agreed upon as due, if based on lawful consideration. It is also settled that, where all the facts have been examined, and there is no reason to suppose a defendant has been misled concerning the issue, great liberality will be exercised to allow necessary amendments. In this case no such difficulty exists if the action lies at all.
The facts were, in brief, that Miner, who was the real and beneficial owner of a title held by a friend of his, procured a. conveyance to be made, absolute in form, but in fact a mortgage, to secure defendant for a debt,, and perhaps for some other liability. Such, at least, the jury must have found the facts to be. Some time thereafter, having an offer of $2,500’ for the land, plaintiff so informed defendant, who told him he would like to take the land himself for that price, and so it was agreed he should have it. Plaintiff, as he gives testimony, having had possession, gave it up to defendant, who assumed it, and subsequently sold the land, to the person who had been in treaty with plaintiff, for a larger price. Plaintiff proved several payments on the price subsequently, which defendant disputes as not so made, but which the jury believed were.
The only question argued before us was confined to the admissibility of this parol arrangement under the declaration in assumpsit; defendant claiming the suit should have been in equity.
There is no doubt that the sale of an equitable interest is as good a foundation for a legal contract as any other consideration: Holland v. Hoyt, 14 Mich. 238. The interest owned by plaintiff in the mortgaged premises was such an interest in lands as could only be transferred at law by a written instrument. But, inasmuch as possession was delivered in furtherance of it, so that the contract was carried out by pei'formance, the statute exception in regard to parol contracts partly performed comes in to aid it, and defendant’s transfer to a bona fide purchaser put an end to any redemption. We think, therefore, that the agreement to pay was based on a sufficient consideration, and that the jury were properly allowed to pass upon it. It might also be suggested that, if the parol contract was not valid, defendant would be bound, as mortgagee, to restore any surplus received on his sale of the premises, and he would stand in no better position.
The judgment must be affirmed.
The other Justices concurred. | [
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] |
Champlin, J.
Wasson was proceeded against before a circuit court commissioner for unlawfully withholding the possession of premises after the expiration of his lease, and was found guilty. He appealed to the circuit court, and with the other defendants as sureties, executed the bond upon which this suit was brought. This action was commenced before a justice of the peace, and the bond was not filed with the justice. The declaration was in writing. The plaintiff recovered before the justice, and the defendants appealed to the circuit. The justice failed to include the declaration filed among his papers, but had lost the same. On the trial in the circuit the fact that the declaration was lost from the files of the justice was proved, and plaintiff was permitted to file a copy in-order to restore the lost file and complete the record. This was done against defendants’ objection, and constitutes their first assignment of error. The action of the circuit court was proper, and the first exception is overruled.
In order to show the proceedings had before the circuit court commissioner, and to identify them, the counsel for plaintiff offered in evidence the files in that case, embracing the return of the commissioner to the action, including the proceedings had in the circuit court. The bond declared on appears among the papers returned by the commissioner. The counsel for plaintiff then offered in evidence the bond-attached to the return of the commissioner. This was objected to by defendant for the reason that the execution of the bond had not been proven. The plaintiff’s counsel then urged its admission, on the ground that the declaration alleged the instrument, and it proved itself unless denied. The court overruled the objection, and admitted the bond in evidence, It is urged" here that there was no prejudicial error in this ruling, for the reason that the bond had already been received in evidence as a part of the commissioner’s-return. The record shows that it was not so regarded at the time. The return was offered for a specified purpose, and not for the purpose of putting the bond declared on in evidence, and it cannot be considered as having been received, in evidence for the purpose of establishing the liability of' the defendants as obligors therein. The ruling of the court when the bond was offered to be read in evidence was erroneous. The pleadings were those that were put in before the-justice. And as the bond was not filed with the justice, the plaintiff could not recover without proof of execution by •defendants. No new issue was framed in the circuit, and rule 79 did not apply : Colbath v. Jones, 28 Mich. 280; McMillan v. Beach, 38 Mich. 397.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Sherwood, J.
On the twenty-third day of April, 1877, the defendant and Amos Rathbone were the joint owners of thirty shares of the capital stock of the Continental Improvement Company, a corporation organized under the laws of the state of Pennsylvania.
The said Rathbone and the defendant owned equal interest in the stock, but it was all issued to defendant, and is still held by him, and stands in his name upon the books of the company.
Amos Rathbone died in 1882, leaving a will, which .was probated in Kent county in December, 1882, and executors named in the will were duly appointed and qualified, and as ■such sold and duly transferred, for the consideration of $775, the interest of said Rathbone’s estate to the complainant, on the ninth day of July, 1883.
After this purchase the complainant applied to the defendant for a division 'of the stock, which was refused, and thereupon the complainant filed the bill in this case for the pur pose of obtaining the division asked for, setting forth, among ■others, the foregoing facts.
The defendant appeared and answered, contenting himself ■with a -simple denial of the facts set forth in the bill which would show him guilty of the injustice charged, and adding ¡thereto the following averment, viz.:
“ And this defendant, further answering, says that, in regard to his dealings with the complainant in the stock of said corporation, he caused to be transferred, many years ago, all the stock he paid for either to this defendant or said corporation ; that the certificate standing in his name was the individual property of this defendant; that the complainant never bargained for or paid any consideration for the same, or any part thereof, either to this defendant or to said corporation ; and the defendant further avers whatever complainant’s rights are they are subject to the equities existing between the defendant and the said Amos Rathbone’s estate.”
The cause was heard in the Kent circuit, before Judge Montgomery, upon pleadings and proofs, who rendered a ■decree granting the relief prayed.
We think the decree made was entirely proper in the case.
The testimony tends to show that for a series of years previous to April, 1877, the said Amos Rathbone and defendant did business together of all kinds, nearly; perhaps not as partners, but made joint, purchases of land and other property, holding the same either as joint tenants or tenants in common, taking the title to such property at the time of purchase, sometimes in the name of one and sometimes in the name of the other, and often in the name of both, but in all of which the interest of the parties was equal. In this manner it seems the property sought to be partitioned was purchased.
On the said twenty-third of April, 1877, a settlement was made between the parties, and all the property divided except the above-mentioned thirty shares of Continental Improvement stock, fifty-eight shares of the Grand Rapids & Indiana Railroad stock, and twenty shares of Chicago & Michigan Lake Shore Railroad stock.
These three items of property were not divided at the time of the settlement, and this statement appears in tlieagreement made between the parties at the time of the settlement in relation thereto:
“ There is certain property [meaning these three items of stock] which it is inconvenient at this time to divide; but it. is hereby agreed between the parties hereto that said Rathbone and said White are the joint and equal owners thereof,, and that the same shall be divided equally between them as soon as practicable.”
In the division made each party took a portion of the assets as his share, and each assumed a portion of the liabilities of the parties, each guarantying the other against the payment of the portion he assumed. At the same time the following-agreement was made:
“ Whereas, Amos Rathbone and George H. White have-this day settled up their matters and divided their property, which they have held and owned together; and whereas, they have operated together for a number of years, and taken conveyances of land, sometimes in the name of said Rathbone and sometimes in the name of said White, and the same has been from time to time conveyed, sometimes with warranty,, and the said Amos Rathbone and George H. White have been and are also executors of the estate of A. D. Rathbone, deceased:
“Now, therefore, the said Amos Rathbone and the said George II. White, in consideration of the premises, each with the other agree that they shall mutually and equally pay and discharge all obligations and liabilities which may have or will hereafter grow or arise out of the aforesaid business- and trust, other than those respectively aforesaid assumed by them in a certain contract of even date herewith, executed by the parties hereto.”
The particular reasons why it was not convenient to make-division of the three items of stock at the time of the settlement does not appear in the record. It is therefore quite probable that it was immaterial to this issue. Neither does it appear that the defendant ever had any lien or claim to the estate’s undivided half, nor that the stock was liable in any way to any claim made by the defendant.
The counsel for defendant depends in his brief upon four grounds:
1. That complainant’s remedy is complete at law, and that equity has no jurisdiction.
2. That the contract under which complainant derives title, between Rathbone and White, is entire, and cannot be split up so as to allow the complainant, the assignee of Rathbone’s rights, to call for a division of the Continental Improvement stock without the rest of the undivided stock being embraced in the division called for.
3. That White has a right to an accounting between the Amos Rathbone estate and himself, claiming that Rathbone has not paid the liabilities assumed by him in the contract of settlement.
4. That the contract to divide the stock is entire, and that White is not bound to perform his part until Rathbone has or is ready and willing to perform his, and that the former is not bound to divide any part of the stock until Rathbone or his executors are willing to divide the remainder.
Courts of equity have exclusive jurisdiction of suits for the partition of personal property: Freem. Cotenancy, § 426; Smith v. Smith, 4 Rand. 102; Conover v. Earl, 26 Iowa, 167; Marshall v. Crow, 29 Ala. 278; Irwin v. King, 6 Ired. 219; Crapster v. Griffith, 2 Bland, 5; Tinney v. Stebbins, 28 Barb. 290; Low v. Holmes, 17 N. J. Eq. 148. This is true, even though the defendant denies the complainant’s title: Weeks v. Weeks, 5 Ired. Eq. 118; Smith v. Dunn, 27 Ala. 316; Edwards v. Bennett, 10 Ired. Law, 363. We do not think the first point relied upon by defendant can be maintained. The demurrer claimed in the answer upon that ground does not appear to have been brought to a hearing at the circuit. This is not a, case to enforce a contract for the sale and transfer of stock, neither is it a case to compel a company to transfer stock on its books to the name of the assignee or purchaser, but a bill to compel the performance of an equitable duty springing up and having its origin in the equitable relation of the parties to the property in question, after the parties have acknowledged in writing the existence of such equitable relations.
It is only when the rights of parties spring from legal duties and legal obligations that the law steps in and furnishes the remedy for their enforcement to the exclusion of proceedings in equity; and, even in those cases, where the legal remedy is inadequate to afford the proper relief, and property is wrongfully withheld to satisfy the just claims of parties, and beyond the reach of the law. equity may be successfully appealed to, and will furnish the necessary assistance, in most cases, to prevent a failure of justice: Low. Transf. Stocks, §§ 223, 225.
The second and fourth grounds, above stated, upon .which the defendant relies, furnish no defense in this case. They are not applicable to the facts stated, and so far as the interest of Nath bone and White in the three items of stock is concerned, it is substantially conceded ; but whether it is or ¡not, the record shows it was not a partnership one.
The thirty shares of Continental Improvement stock was ■an entire, distinct, and separate parcel of property, having no natural or necessary connection whatever with the stock in the other two railroad companies, and would, in any sale ■authorized in legal proceedings, ordinarily be required to be •sold separate from the other two items of undivided property, •and could 'as well be partitioned by itself as in connection with the other two parcels, and, in fact, there might be very satisfactory reasons why a separate partition should be made.
No lien was created in favor of either of the parties as against the other under the relation in which they held the property, and none was created under the contract of settlement; and had there been any from any other source, it could not have affected the right of complainant to the partition asked, but only the extent of his interest in the property : Low. Transf. Stocks, §§ 138-141; Butler v. Roys, 25 Mich. 53; Green v. Arnold, 11 R. I. 364 ; Hoyt v. Day, 32 Ohio St. 101; Earles v. Meaders, 1 Baxt. 248.
The defendant’s third ground of defense cannot be maintained. It is only when the partnership relation exists between the parties as to the property sought to be partitioned, or there is some agreement, express or implied, between them that an accounting shall be had before a division of the property can be made, that the rule contended for applies. The record fails to show the first, and the latter is not claimed. This necessarily disposes of the case,- and the •decree at the circuit must be affirmed, with costs.
Campbell, C. J. and Morse, J. concurred. Champlin, J. did not sit, having been of counsel. | [
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Champlin, J.
This is an information in the nature of a quo warranto, filed by the attorney general on behalf of the people, to try the title of the respondent to the office of member of the board of education, Union school district of Bay City, which office it is alleged the respondent has usurped, intruded into, and unlawfully holds.
The respondent pleaded to the information, in which he asserts that he is a resident of the third ward of the city, a tax-payer and property holder therein liable to assessment, and has children between the ages of five and eighteen, who are entitled to attend schools of Bay City; that at the annual election or school meeting held on the seventh of September, 1885, in each of the wards of said city, pursuant to an act entitled “An act to amend an act entitled, ‘An Act to organize Union school district of Bay City, approved March 20, 1867,’ approved June 17,1885,” he was duly elected a member of the board of education of Bay City for the term of one year, and was declared by the board of inspectors of said meeting to be duly elected, and received his certificate of election, which he filed with the recorder of Bay City, and took the constitutional oath of office as required by the said act, entered upon the office, and has since held and occupied the same.
The attorney general filed his replication, in which he sets forth the boundaries of Union school district under prior acts, and shows that they were coincident with the boundaries of, and embraced in, the same territory as the municipal corporation of Bay City, and that under such prior acts the common council appointed Daniel Shannon, on the twenty-fourth of March, 1884, to be member of the board of education of said Union school district, for the third ward, for the term of two years, and his term will not expire until March, 1886, which office he held until the same was usurped by respondent.
The answer then sets forth irrelevant matter at great length, respecting an act of the Legislature revising the charter of West Bay City, and encroachment upon the territory of the city of Bay City by changing the boundaries of West Bay City; and also setting up that the boundaries of Union school district of Bay City, as defined.in the act under which respondent was elected, include some of the territory of West Bay City, as defined in said revising act; and it alleges that the act under which respondent was elected is void.
The respondent demurred to this replication, and the case is here upon the issue thus raised.
It is claimed that the act to amend certain sections of an act entitled “ An act to organize Union school district of Bay City,” approved June 17, 1885, is unconstitutional, because (1) it seeks to change and define the boundaries of the municipality of Bay City, which object is not within its title; and (2) the boundaries so changed include many persons qualified to vote at school meetings who by such change are deprived of the right of voting. We think the intent of the Legislature is plain to erect a Union school district whose boundaries shall be coincident with the territorial limits of the municipality of Bay City, wherever those boundaries may bo; and if the description of the boundaries given in the act is not coincident with such boundaries of the municipality, it must yield to the evident intent, and the boundaries of the school district must follow the boundary line of the city, wherever that may be. We therefore hold the act under which relator was elected to and holds office to be a valid act.
We do not determine where the boundary is between Bay City and West Bay City, for the reason that we do not consider the question necessarily raised upon this record, and for the further reason that neither city is represented in this proceeding, in its corporate capacity.
It need not be said that a city attorney can bring a corporation into court by filing a brief in a case in which the city is not impleaded.
The demurrer is sustained, and judgment entered for defendant, without costs.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). What is the legal character of the game of baseball played upon the Sunday in question? It is conceded to have been prohibited by section 5912, Comp. Laws 1897, which imposes a penalty of not to exceed $10 for such offense. It is an offense against the public peace, under section 11334, which provides:
“ If any persons to the number of thirty or more, whether armed or not, shall be unlawfully, riotously, or tumultuously assembled in any city, township, or village, it shall be the duty of * * * the sheriff of the county and his deputies to go among the persons so assembled, * * * and, in the name of 'the people of this State, to command all the persons so assembled immediately and peaceably to disperse.”
That this was an unlawful assembly is conceded. Was it a breach of the peace ? The right of the State to enact laws for the observance of the Sabbath is beyond the domain of discussion. Nearly every law that has been passed upon the subject has been contested in the courts. Upon no subject is there a greater unanimity in judicial opinions. I find but one decision which has held such a law unconstitutional. Ex parte Newman, 9 Cal. 502. The opinion in that case was by a bare majority of the court, Justice Field dissenting. That decision was overruled by a unanimous opinion of the court in Ex parte Andrews, 18 Cal. 678. These laws do not infringe upon the religious freedom guaranteed by the constitutions of the United States and of the various States. The statute carefully exempts those who conscientiously believe in the observance of the seventh day of the week, and who actually refrain from secular business and labor on that day. Whether they are enacted because of the necessity of a day of rest, or out of regard to the religious practices and beliefs of the people, or from both considerations, we need not consider. In view, however, of the notorious disregard of some of the provisions of these laws, and the notorious neglect of some sheriffs and other police officers to enforce them, a reference to some of the decisions may be pertinent.
The State of Georgia enacted a law prohibiting the running of freight trains in that State on Sunday. It was attacked as conflicting with interstate commerce. The law was held valid; the court, speaking through Mr. Justice Harlan, saying:
“The statute of Georgia is not directed against interstate commerce. It establishes a, rule of civil conduct-applicable alike to all freight trains, — domestic as well as interstate. It applies to the transportation of interstate freight the same rule precisely that it applies to the transportation of domestic freight. And it places the business of transporting freight in the same category as all other secular business. It simply declares that, on and during the day fixed by law as a day of rest for all the people within the limits of the State from toil and labor incident to their callings, the transportation of freight shall be suspended.” Hennington v. Georgia, 163 U. S. 299 (16 Sup. Ct. 1086).
Chief Justice Kent, in 1811, in an indictment for blasphemy, said:
“And why should not the language contained in the indictment be still an offense with us ? There is nothing in our manners or institutions which has prevented the application or the necessity of this part of the common law. We stand equally in need now as formerly of all that moral discipline and of those principles of virtue which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could” be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful.” People v. Ruggles, 8 Johns. 290 (5 Am. Dec. 335).
If the utterance of blasphemy is offensive to the virtuous part of the community, and injurious to the morals of the young, is not an open, boisterous, and flagrant violation of these laws equally offensive and dangerous? When citizens become a part of that civil compact known as the “State,” and surrender certain of their natural rights, in consideration for which the State promises to protect their persons, property, health, and morals, are they not entitled to have these laws enforced ? Is it not demoralizing in the extreme when they are permitted to be openly defied with impunity? A leading case upon the subject is Lindenmuller v. People, 33 Barb. 548, which involved a. statute prohibiting theatrical exhibitions on Sunday. In that opinion appears the following:
“It is exclusively for the legislature to determine what acts should be prohibited as dangerous to the community. The laws of every civilized State* embrace a long list of offenses which are such merely as mala prohibita, as distinguished from those which are mala in se. If the argument in behalf of the plaintiff in error is sound, I see no way of saving the class of mala prohibita. Give every one his natural rights, or what are claimed as natural rights, and the list of civil offenses will be confined to those acts which are mala in se, and a man may go naked through the streets, establish houses of prostitution ad libitum, and keep a faro bank on every corner. This would be repugnant to every idea of a civilized government. It is the right of the citizen to be protected from offenses against decency, and against acts which tend to corrupt the morals and debase the moral sense of the community. Regarding the Sabbath as a civil institution, well established, it is the right of the citizen that it should be kept and observed in a way not inconsistent with its purpose and the necessity out of which it grew, — as a day of rest, rather than as a day of riot and disorder, which would be effectually to overthrow it, and render it a curse rather than a blessing.”
Under a statute which prohibited sporting, etc., on Sunday, baseball games were held to come within the definition of “sporting.” State v. O’Rourk, 35 Neb. 614 (53 N. W. 591, 17 L. R. A. 830). The learned chief justice in that case used the following language:
“ The law, both human and Divine, being thus in favor of abstaining from sporting, etc., on Sunday, is a reason able requirement, and should be enforced. The deliberate violation of such a law, there is reason to believe, in many cases, is but the commencement of a series of offenses that lead to infamy and ruin; and, in any event, the influence upon the participants themselves has a tendency to break down the moral sense and make them less worthy citizens. The State has an interest in their welfare, and may prevent their violation of the law. The State, in order to prevent vice and immorality, may punish licentiousness, gambling of all kinds, the keeping of lotteries, enticing minors to gamble, or to permit one under 18 years of age to remain in a billiard-room; to punish publishing, keeping, selling, or giving away any obscene, indecent, or lascivious paper, book, or picture; and also punish any person who shall lend or show to any minor child any such paper, publication, or picture, etc. The law also punishes the disturber of a religious meeting, school meeting, election, etc. These cases show the importance felt by the legislature of evils of the kind named, and others, by means of which, in addition to wrongs inflicted on the persons injured, a spirit of insubordination is created and fostered, which incites to evil, and tends .to subvert the just and equal rights of some or all. In addition to this, every person has a right to the quiet and peace of a day of rest. He has also a right to the enforcement of the law, so that the evil example of a defiance of the law shall not be set before his children. The State has an interest in their welfare, also, in order that they may become useful citizens, and worthy and honorable members of society. The fact that the defendants were some distance away from the residence of any person can make no difference. It did not change the nature of the offense, nor excuse the act. It was a violation of the law, just the same.”
See, also, State v. Hogreiver, 152 Ind. 652 (53 N. E. 921, 45 L. R. A. 504); State v. Powell, 58 Ohio St. 324 (50 N. E. 900, 41 L. R. A. 854); People v. Havnor, 149 N. Y. 195 (43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707); People v. Bellet, 99 Mich. 151, 155 (57 N. W. 1094, 22 L. R. A. 696, 41 Am. St. Rep. 589).
In 1820 the territorial legislature of Michigan passed an act entitled “An act to enforce the observation of the Sabbath.” Its preamble is as follows:
“Considering that in every community some portion of the time ought to be set apart for relaxation from worldly labors & employments, & devoted to the social worship of Almighty God and the attainment of religious and moral instruction, which are in the highest degree promotive of. the peace, happiness, and prosperity of a people; and whereas, the first day of the week, commonly denominated the Sabbath, has at all times, among Christians in general, been devoted to these important purposes: To the end, therefore, that the good people of this Territory may be enabled, as well on that day as on all proper occasions, freely and without disturbance to perform those great and necessary duties with that decency and solemnity which is suitable to their importance, therefore,” etc. 1 Terr. Laws, p. 643.
The law then enacted is substantially the same as that now upon the statute book.
A breach of the peace is “a violation of public order; the offense of disturbing the public peace. * * * An act of public indecorum is also a breach of the peace.” Bouv. Law Diet. The term is generic, “and includes unlawful assemblies.” 4 Am. & Eng. Enc. Law (2d Ed.), 903. Where the statute prohibited the arrest of any person on Sunday, except in cases of treason, felony, and breaches of the peace, a ball game upon Sunday was held to be a breach of the peace. In re Carroll, 12 Wkly. Law Bul. 9. Under our statute, and under the authorities referred to, this game of baseball was a breach of the peace.
What was the duty of the sheriff? Upon this point we need say but little. The law is not disputed. It was his duty to prevent the game, and, if the players persisted in proceeding with it, it was his duty to promptly arrest them all. Mr. Parshall knew this, and so, in substance, testified. Plaintiff was presumed to know his duty and to perform it. He did not require the advice of the prosecuting attorney that it was his duty to prevent a breach of the peace, and to be present at any place when he received information that one was to be committed. In South v. Maryland, 18 How. 396, it was sought to hold the sheriff’s bond liable for damage resulting to an individual from his neglect to preserve the public peace. Such an action was held not maintainable. In regard to the duty of a sheriff as a conservator of the peace, the supreme court in that case said:
“The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial, but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.”
By statute in New York a sheriff is now made liable for damages to property destroyed by a mob or riot, where notice has been given him of the intended mob or riot, and he fails to take steps to prevent it. That statute fixes the liability, which did not exist at the common law, but his duty as conservator of the peace was the same. Schiellein v. Board of Sup’rs of Kings Co., 43 Barb. 490.
The inquiry is pertinent whether a sheriff, upon notification that a breach of the peace has been planned and is ready for execution, can perform his duty by inquiry of one of the leaders in the proposed breach of the peace, and receiving an assurance from him that he and his fellows would not accomplish the offense without notifying him of their intention. If this can be interposed as a defense, in what classes of crimes or misdemeanors would it not be a defense? In case of a mob, would he be justified in taking the assurance of a supposed leader that they would not accomplish the act without notifying him ? If an attack is 'threatened upon A.’s house at night, and A. notifies the sheriff, has he performed his duty when he has seen the supposed leader of the attack, and received his assurance that he will desist ? Perpetrators of these breaches of the peace will always take steps to put the officers off guard, as they evidently did in this case. Section 11337, 3 Comp. Laws 1897, expressly makes it the duty of the sheriff to suppress every unlawful assembly, and to arrest and secure the offenders; and any neglect upon his part so to do is made a misdemeanor, punishable by fine not exceeding $300. Mr. Parshall testified that he asked plaintiff, “ Whát would be the trouble if we played?” and that' plaintiff replied, “He would have to serve any warrants if any were issued.” We cannot shut our eyes to the fact that this has been a common excuse of sheriffs and other police officers for not enforcing this and other laws. It is the duty of the sheriff and police officers generally to enforce those laws which the people have enacted for the protection of their lives, persons, property, health, and morals, including the laws for the observance of the Sabbath.
Was the article libelous per sef The acts and conduct of a public officer are open to criticism. The law holds the critic to substantial accuracy in stating the facts upon which his criticism is based. The letter charged plaintiff with an intentional neglect of duty. Such a charge is libelous per se. Plaintiff’s oath of office was to perform faithfully the duties of sheriff. What that duty was, the violation of which was charged, has already been shown. The statement that “a violation of an oath is always shameful, — particularly so when it relates to official duties,” is true. The facts stated do not constitute perjury. The statement based upon them, that, “in legal terms, the violation of an oath is called ‘perjury,’” does not, therefore, charge that crime against plaintiff. The three important facts asserted are (1) notification, (2) absence from the scene, and (3) that he had allowed the game to be played. Proof of these would have been a complete justification. Two are conceded, namely, notification and absence. Whether the third was proven depends upon the determination of two questions: JTirst. Was plaintiff notified by Parshall that the game would not be played without notifying him ? And, second, had plaintiff the right' to rely upon such a statement of Par-shall, in view of all the circumstances and facts of the case ?
The court instructed the jury that the mere fact “ that a game of ball was to be played at Caledonia Park upon Sunday does not impose upon the sheriff the duty of going there and stopping it or preventing it.” It follows from what has been said that this is not the law. Neither the sheriffs, police officers, nor courts can close their-eyes to the fact that these games are accompanied with loud and boisterous conduct. They are therefore, per se, against that peace and quiet guaranteed to all citizens by the law on the Sabbath day, and the court should have so instructed the jury.
The court also said to the jury: “A mere rumor that an offense was to be committed somewhere away from his place would not necessarily take him there.” That instruction was not applicable to this case. The information conveyed to plaintiff by these parties was not “mere rumor,” either as to time or place. He was notified by them that the game was publicly announced, and that the grounds were in readiness for it. He chose to rely upon the statement of one member of one of the clubs that the game would not be played without notice to him.
After defendant had been upon the stand and cross-examined, the following occurred:
“Q. Mr. Sweet, did you slide your chair this way and enter into a conversation with Mr. McCurdy at recess ?
“A. I did.
“Q. Did you in that conversation say to him, if we had let you gone into that north-country matter, you would have told something of interest; that you had made the sheriff up there smart, and you would make this man smart before you got done with it ? (Objected to as improper.)
“Mr. Lyon: I offer it for the purpose of showing malice.
“Court: You can answer. (To which ruling the defendant then and there excepted.)
“A. May I ask a question?
“Q. That is a question I want answered by ‘Yes’ or ‘No.’
“Court: He asks me if he may ask me a question. I will allow him to.
“ Witness: If I have to answer that question, may I not relate the whole conversation ?
“Court: That you had with Mr. McCurdy?
“Witness: Yes, sir.
“Court: That will be determined later. I couldn’t rule in advance. I don’t know what it is. Whatever your rights are, they will be protected in one way or another.
“Witness: Let me have the question again. (Question read.)
“A. ‘If this persecution continues.’
“Q. Please answer my question.
“Court (to witness): Did you say that?
“A. I did; yes.”
Redirect examination:
“Mr. Kilpatrick: Q. Now you may explain.
“A. I said, ‘If this persecution continues.’”
We think this testimony was objectionable. It had no reference to the feeling of the defendant at the time of the publication. It related solely to the conduct of the plaintiff in the prosecution of this suit, which the defendant saw fit to call “ persecution.” • It did not tend to show that, at the time of the publication, defendant entertained actual malice towards the plaintiff. It should have been excluded. In view of a new trial, it may be well to state that if defendant was asked on cross-examination about a difficulty with a police officer in Houghton county, for the purpose of attacking his credibility, he should have been permitted to state to the jury the full particulars of that trouble.
There was no testimony upon which to base damages of $50 to plaintiff’s office. Under that head he could recover only the actual damages. It was not shown that he had lost the service of any papers, or had been damaged at all in the emoluments of his office. He could, therefore, recover only nominal damages.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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] |
Long, J.
On the 16th day of February, 1897, Alfred Gaines and wife executed and delivered to William S. Green a mortgage on the property in litigation in this suit to secure the repayment of a loan of $3,000, made at that time. In payment of the first installment of interest, Gaines gave to Green a check on a bank in which he had no funds, which check Gaines never paid, although twice notified by letter that the check had been dishonored. The second installment of interest, falling due February 16, 1898, was not paid, and, after notice to - Gaines by letter, Green filed a bill to foreclose said mortgage. The return of the sheriff of Wayne county showed that personal service of the subpoena was had on both Gaines and wife on the 27th day of April, 1898, and on May 9, 1898, John Gr. Hawley caused notice of -his appearance as solicitor for the defendants to be served, and Mr. Hawley was thereafter recognized as such by the complainant’s solicitors, and copies of all papers and notices of all proceedings in the foreclosure case were duly served upon him. The case proceeded in the usual and regular manner to decree, and on the 20th day of June, 1899, the property was duly and regularly sold to David W. Simons for $3,738.13, report of sale was duly confirmed, and a deed executed. Demand for possession having been made, the bill of complaint in this cause was filed to vacate the foreclosure decree.
The bill is based entirely upon want of notice of the pendency of the foreclosure proceedings, and charges the defendants therein with fraudulent conspiracy to injure the complainant. This charge of fraud and conspiracy was found by the court below to be absolutely disproved. Want of notice was likewise disproved. The court below dismissed complainant’s bill.
Counsel for complainant raise other issues. It is claimed that the sale of the premises was irregular, illegal, and void, and not in pursuance of the decree of the court, in that the mortgaged premises were sold together, and not separately, there being two lots; that the complainant made a tender in the court below of the amount due on the mortgage; and that the price for which the lots sold was inadequate. These claims were not set up in the bill, and cannot now be raised.
The decree of the court below must be affirmed, with costs.
The other Justices concurred. | [
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] |
Moore, J.
This case has been here once before, and is reported in 121 Mich. 212 (80 N. W. 23). Upon the second trial, plaintiff recovered a verdict. The case is brought here by the defendant by. writ.of error.
The counsel for defendant argue over again in their brief the questions passed upon when the case was here before. We do not think any further reference is necessary to that feature of the case. The case was sent back for trial upon a single point, in relation to which the court declared the law to be as follows:
“It is well settled that a violation of the rules of the company will defeat recovery. The exception, to this is where the company itself has sanctioned the custom of its employés to act in violation of the rules, and has thus virtually abrogated them. This exception is based upon the theory that it would be unjust in employers to establish rules, and then sanction their violation, and interpose such violation as a defense. Hunn v. Railroad Co., 78 Mich. 513, 526 (44 N. W. 502, 7 L. R. A. 500); Eastman v. Railway Co., 101 Mich. 597, 602 (60 N. W. 309). Fairly construed, the above rule is notice, to brakemen not to enter between the cars while in motion to.uncouple them, and an agreement not to do so. The danger in doing so is apparent. Only when this rule is violated by brakemen so universally and notoriously that it is a fair inference that the company sanctioned and approved the violation is the company barred from this defense. The court instructed the jury that if they believed that the motion of the cars was so slow that it was not negligence to pass between them to uncouple them, and that such was the usual custom of brakemen under like circumstances, then such act would not necessarily prevent recovery by the plaintiff. There was evidence tending to show that it was usual and customary for brakemen to pass between the cars while in motion to uncouple them. The case was not submitted to the jury upon the theory that the company had sanctioned a violation of this rule. The question was not referred to in the .instructions. * * * When the defendant had entered into the contract with the deceased, in which he acknowledged the receipt óf a copy of these rules, and agreed to abide by them, it had met the plaintiff’s case, even though it was not negligence per se to go between the cars when in motion. The onus prohandi was then cast upon the plaintiff to show that the company sanctioned a departure from the rule by a custom so universal and notorious that the company was presumed to have had knowledge of it and to have ratified" it. This is an important feature of the case, and was not, we think, by the instructions, properly submitted to the jury.
“Counsel for plaintiff urge that the evidence does not show that Fluhrer ever read or saw these rules. The production of the duplicate contract signed by him was prima facie proof that he had received and read them. If there was a conflict of testimony on this point, it should be submitted to the jury under proper instructions.”
Upon the second trial, testimony was given in relation to the custom of the employes about going between the cars when in motion to uncouple them. The jury were properly instructed in accordance with the law as stated by the court when the case was here before, and the jury rendered a verdict in favor of plaintiff.
Judgment is affirmed.
The other Justices concurred. | [
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Moore, J.
The record shows the following state of facts: Prior to June, 1893, Frank D. Weller and his mother, Adelia M. Weller, claimed to be the owners of a two-thirds interest in certain lands described in the bill of complaint. The title to the lands was in litigation. They were parties to the litigation. Harry G. Wiley claimed to be the owner of the other one-third interest in the lands. The Wellers were unable to carry on the litigation, and made an arrangement with the complainant, who is a lawyer, to take charge of it. If he established their rights in the land, he was to be paid $1,000, and was to have a lien upon the land until he was paid. The complainant took charge of the litigation, and conducted it to a successful issue. All of the defendants knew of the arrangement between Mr. Kilbourne and the Wellers, and of the rendition by him of the service, and the amount he was to be paid therefor. Possessed of this knowledge, Wiley, for Judson, Wiley & Judson, entered into negotiations for the purchase of the two-thirds interest belonging to the Wellers, and finally bought the same. Pending the negotiations, Mr. Wiley, who conducted them for Judson, Wiley & Judson, informed Mr. Kilbourne they understood exactly what the agreement was between the Wellers and him, and that, if they bought the property, they would buy it subject to his right to be paid out of the property, and would see that his interests were protected. Mr. Wiley afterwards completed these negotiations, and a deed of the property was made, according to his direction, for Judson, Wiley & Judson. As a part of the consideration for the conveyance of the land, it was agreed that Judson, Wiley & Judson would pay the claim Mr. Kilbourne had against the Wellers, and to secure the payment of which they had agreed to give Mr. Kilbourne a mortgage upon the land. After the deed was made, Mr. Wiley assured Mr.- Kilbourne they had bought the land subject to the payment of the $1,000 which the Wellers had agreed should be paid to Mr. Kilbourne, and promised to pay him as soon as the decree which had been rendered in the circuit court in favor of the Wellers should become a finality. The $1,000 was not paid, and this proceeding-was brought. The complainant filed an amended bill, making both, the Wellers parties thereto. The Wellers do not contest the claim of complainant, but allowed an order pro confesso to be entered before decree. Mr. Frank D. Weller, who represented his mother as well as himself in the arrangement made with Mr. Kilbourne, was a witness upon the trial of this case. His testimony indicates his desire to have Mr. Kilbourne receive his pay. His testimony substantiates Mr. Kilbourne’s claim in nearly all essential particulars. The circuit judge rendered a decree in.the cause in favor of complainant for the $1,000 and interest, and gave him a lien upon the two-thirds interest in the land sold by the Wellers to the defendants.
It is the claim of the defendants Judson, Wiley & Judson that there is no privity between the complainant and them; that he cannot assert a vendor’s lien, because he was not the owner of the land, and did not make the sale; that there can be no lien, because, at the time of the agreement between Weller and Wiley, there was no certain amount fixed upon to be paid in any event, nor at any particular time. It is asserted the complainant has mistaken his remedy; that he should have secured a lien upon the land when he made the agreement with Mr. Weller, but, failing in this, he should have attached the land when he knew Mr. Weller was trying to dispose of the land. It is true that, upon the cross-examination, Mr. Weller says Mr. Wiley did not agree to pay Mr. Kilbourne $1,000, but agreed to settle with him. Another portion of his examination shows Mr. Wiley was informed the claim of Mr. Kilbourne was for $1,000, and that he agreed to pay that claim. It also shows that, in making up_ the aggregate of the consideration to be paid, this claim was figured at the sum of $1,000. Mr. Wiley testified that he knew the claim was $1,000. So that, taking the record as an entirety, we do not think there can be any reasonable doubt as to the amount which was to be paid.
The question of whether the complainant is in a condition to enforce the agreement, and assert a lien upon the real estate, presents serious difficulties, but, unless they are insurmountable, the equities of the complainant are so strong they ought not to prevail. It has been repeatedly held that the vendor of real estate has an equitable lien upon it for the purchase money, where no ‘security for its payment has been taken. Carroll v. Van Rensselaer, Har. Ch. 225; Dnnton v. Outhouse, 64 Mich. 425 (31 N. W. 411). It is also a well-established rule of law that a vendee who has paid prematurely purchase money for real estate has a lien against the vendor analogous to that of a vendor in an opposite case. Payne v. Atterbury, Har. Ch. 414. In Michigan State Bank v. Hastings, 1 Doug. (Mich.) 258 (41 Am. Dec. 549), this language is used:
“No principle is now better settled than that the vendee of lands becomes a trustee to the vendor for the purchase money, or so much as remains unpaid. 2 Story, Eq Jur. 463-465. In such a case the trust is implied, and arises from what are called ‘equitable liens,’ of which courts of equity alone take cognizance. Such liens exist independently of any express agreement, and courts of equity enforce them on the principle that a person, having gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it, and not pay the consideration money. The Roman law declared the lien to exist in natural justice, and this principle, which is now ingrafted in the equity jurisprudence both of England and this country, was borrowed from the civil law. By that law the rule was equally applied to the sale of movable and of immovable property. 2 Story, Eq. Jur. 408.”
Sears v. Smith, 2 Mich. 243.
In Huxley v. Rice, 40 Mich. 73, this language is used:
“It is the settled doctrine of the court that, where a conveyance is obtained for ends which it regards as fraudulent, or under circumstances it considers as fraudulent or oppressive, by instant or immediate consequence, the party deriving title under it will be converted into a trustee, in case that construction is needful for the purpose of administering adequate relief; and the setting up the statute against frauds by the party guilty of the fraud or misconduct, in order to bar the court from effective interference with his wrong-doing, will not hinder it from forcing on his conscience this character as a means to baffle his injustice or its effects. 2 Comp. Laws 1871, §§ 4692, 4693; 1 Story, Eq. Jur. §§ 330, 333; 2 Story, Eq. Jur. §§ 1254, 1265; 1 Spence, Eq. Jur. 511; 2 Spence, Eq. Jur. 194, 294, et seq.; Hill, Trustees, 144; Mestaer v. Gillespie, 11 Ves. 621; Pickett v. Loggon, 14 Ves. 215, 234; Barnesly v. Powell, 1 Ves. Sr. 284, 289; Young v. Peachy, 2 Atk. 254, 257; Brown v. Lynch, 1 Paige, 147; Hutchins v. Lee, 1 Atk. 447; Wolford v. Herrington, 74 Pa. St. 311 (15 Am. Rep. 548); Gregory v. Williams, 3 Mer. 582.”
See, also, Miller v. Aldrich, 31 Mich. 408.
In the case of Tysen v. Railway Co., 15 Fed. 763, it is said :
“When the consideration for conveyance of property is the payment by the vendee of the debt of a third person, a lien exists upon the property conveyed for the benefit of such third person. Nichols v. Glover, 41 Ind. 24; 2 Story, Eq. Jur. § 1244; Clyde v. Simpson, 4 Ohio St. 445; Vanmeter’s Ex’rs v. Vanmeter, 3 Grat. 148; Harris v. Fly, 7 Paige, 421; Hallett v. Hallett, 2 Paige, 15.”
In Lee v. Newman, 55 Miss. 365, this language is used:
“Nor is an obligation to pay the debts of the vendor to a third person, though in parol, obnoxious to that provision of the statute of frauds which requires all undertakings to pay the debts of another to be in writing. Such assumptions are not within the statute. The contract is, not to pay the debts of another, but to pay the party’s own debt to some person other than his own creditor.
“ ‘It maybe stated as a general rule that wherever the main purpose and object of the promisor is, not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although, the performance of it may incidentally have the effect of extinguishing the liability of another.’ 3 Pars. Cont. (5th Ed.) 24
“The statute of frauds was intended to protect from the enforcement of parol contracts to be answerable for the liabilities of others, but not to shield a party from the performance of his own contracts, though the effect of such performance would liquidate also the liabilities of another. Nor will it make any difference that the liability of the original debtor continues after the assumption by the new one. The contract not being within the statute, this cardinal test of whether it is a collateral or an original undertaking (see Sweatman v. Parker, 49 Miss. 19, and Bloom v. McGrath, 53 Miss. 249) does not apply. It is not the debt of another, but his own debt, which he has promised to pay; and neither the fact that the payment is to be made to a third person, nor the fact that in paying his own debt he extinguishes that of another, nor the fact that- the liability of that other continues the same after as before his undertaking, brings it within the statute. * * * Especially will this right to bring suit in his own name exist in behalf of him for whose benefit the promise was made where the consideration of it was money or property simultaneously delivered or sold to the promisor. In such case the property is received under a trust, which will itself form a good consideration, inuring to the benefit of him to whom the payment is due; and, if the purchaser has received credit for the sum thus contracted to be paid to such other person, the law will treat it as money had and received to his use. 1 Chit. Pl. 5; Arnold v. Lyman, 17 Mass. 400 (9 Am. Dec. 154); Hall v. Marston, 17 Mass. 579; Dunlop v. Silver, 1 Cranch, 429 (Append.); Barker v. Bucklin, 2 Denio, 45 (43 Am. Dec. 726); Hendrick v. Lindsay, 93 U. S. 143; Lawrence v. Fox, 20 N. Y. 268; 1 Pars. Cont. (5th Ed.) 466-468.
“In Dearborn v. Parks, 5 Greenl. 81 (17 Am. Dec. 206), and in Whitbeck v. Whitbeck, 9 Cow. 266 (18 Am. Dec. 503), the exact question here involved was presented. The purchasers of real estate had assumed (in one case in writing, and in' the other by parol) to pay a portion of the purchase money to creditors of the vendor. Though these creditors were not parties to the contract, it was held that they could recover the amounts so promised to be paid them by direct action in their own names. A personal recovery in such a case would not be permissible, as before remarked, under the construction of the statute of frauds announced in Marqueze v. Caldwell, 48 Miss. 23, but, as we have seen, the vendor could assert his lien against the land. There can be no good reason for denying the same remedy to him for whose benefit the assumption was made. By reason of the assumption, the purchaser has obtained a diminution in the amount paid to the vendor, and has taken the land charged with an equity in favor of a third person. A court of equity, in analogy to that principle which in a court of law would enable such third person to maintain an action of assumpsit if there was a personal liability incurred by the vendee, will permit him to assert against the land that trust which was fastehed on it for his benefit; and this he can do both against the vendee and against all deriving title through the conveyance, which gave notice upon its face that the purchase money was unpaid, and was to be paid to him.”
In Barrett v. Lewis, 106 Ind. 120 (5 N. E. 910), the court uses the following language:
‘' The lien which arises in favor of the vendor of land, or of the person to whom purchase money is due, is peculiarly of equitable cognizance. Equity has regard in such cases, as in others, for the substance, and not the mere form, of the transaction. Disregarding form, a court of equity will not permit substantial equities, which are clearly established, to be defeated by the interposition of merely nominal or technical distinctions. If, upon looking through the transaction, it appears that a debt is in fact part of the purchase price of land acquired in the transaction out of which the debt arose, no other obstacle intervening, a lien will be declared upon the land so acquired in favor of the person to whom such debt is due. This is clearly the result of the well-considered case of Dwenger v. Branigan, 95 Ind. 221, and the authorities there cited. * * * It is the unpaid purchase money which creates the lien, and it is of no consequence to whom the money is due, so that it can be regarded in equity as purchase money. The lien results from the transactions between the parties, and is manifested by all the circumstances attending each particular case. Boyd v. Jackson, 82 Ind. 525; Nichols v. Glover, 41 Ind. 24.”
In 2 Jones, Liens, § 1094, it is said: “The lien exists in favor of a third person to whom the vendee, at the vendor’s request, has agreed to pay a portion of the purchase money;” citing a long list of cases. See 2 Sugd. Vend. 376, note; 1 Perry, Trusts (5th Ed.), §§ 232-238.
The services rendered by the complainant converted a title about which there was a question into a valid title. For the payment of these services he was to receive a mortgage. Before he received it, the land was conveyed to the contesting defendants, who had knowledge of the agreement, upon their promise to pay as a part of the consideration this claim of complainant, which was recognized by the Wellers. The land has been deeded. Refusal of payment is now made. Does the claim that the title to the land can be held, and the vendees be relieved from the payment of the consideration, appeal to one’s conscience? We think not, and we think the equity power of the court is sufficient to prevent such a wrong, and do not doubt, under the authorities cited, the circuit judge was fully authorized to make the decree he did.
The decree is affirmed, with costs.
The other Justices concurred. | [
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Moore, J.
Prior to January 18, 1899, plaintiff owned a stock of goods in the city of Grand Rapids, upon which the defendant had a $1,000 policy of insurance, “the loss, if any, payable to George H: Reeder, trustee, as his interest may appear.” The plaintiff desired to remove the stock to Holland, and the following indorsement was made upon the policy:
“Permission is hereby granted to remove the insured property to the three-story, composition roof, brick building, occupied as a boot and shoe store, and situated at No. 73 East Eighth street, in the city of Holland, Mich. Insurance to cease at the former and attach at the latter location from twelve o’clock noon on the 18th day of January, 1899.”
The goods were at once removed to this location. The portion of the store in the three-story building was about 30 feet by 50 feet. Just back of this portion of the store was a one-story building about 30 feet by 30 feet, both portions having been used for many years together as one store. Both portions of the building were rented by plaintiff for one rental price. In the partition was a large opening where there had been a door, and also an opening Where there had been a window. Both portions of the building were occupied by the plaintiff, though the major portion of his goods was kept in the front portion. He had a rough door hung in the doorway, which fastened from the inside with a string. There was nothing in the opening made for a window.
The policy of insurance, among other conditions, contained the following:
‘ ‘ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, * * * . or if the hazard be increased by any means within the control or knowledge of the insured, * * * or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises benzine, benzole, dynamite, ether, fire works, gasoline, Greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerin or other explosives, phosphorus, or petroleum, or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be° used for lights, and kept for sale according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight, or at a distance not less than ten feet from artificial light): * * * Provided, a loss shall occur in the property insured while such breach of condition continues, or such breach of condition is the primary or contributory cause of the loss.”
The policy contained no agreement indorsed thereon or added thereto varying in any respect the printed conditions as above set forth.
It is the claim of plaintiff that in March he and his clerk, Mr. Mensching, hired a room over the store, where they intended to live, and to get their own breakfasts over a gasoline stove; that he ordered a gasoline stove, which was to be delivered to him soon thereafter, and, for the purpose of supplying this stove with fuel, he bought a gallon of gasoline, which was put in a one-gallon can, and for the purpose of lighting the store he bought five gallons of kerosene oil. The oil and gasoline were delivered to him on Monday, and placed by him in the rear portion of the store. Prior to Monday, Mr. Mensching entered into other employment, and Mrs. Stewart was hired to take his place in the store. She worked on Monday and Tuesday. It is the claim of the plaintiff' that on Monday noon, when his clerk was gone to dinner, he used about one quart of the gasoline to remove some spots from the clothing which he wore. On Tuesday evening Mr. Boyer gave a key to the store to Mrs. Stewart, and told her she would have to open the store in the morning, as he was going to Grand Rapids that evening, and would not return in time to open the store in the morning.. About 11 o’clock at night the store was discovered to be on fire. About the time the fire was discovered, one of the front windows was thrown forward into the street as by an explosion. This was quickly followed by an explosion which threw the other front window into the street. The fire was then burning in the front portion of the store with great intensity. The firemen soon arrived, and quickly extinguished the blaze. The goods in the front portion of the store were so badly injured as to constitute a total loss. The goods in the rear portion of the building were not injured by the fire, and there was but little fire in that portion of the building. The firemen entered the rear portion of the building from the rear. They found the oil and gasoline cans near the middle of the rear portion of the building. The oil can was about half full of oil. The gasoline can was empty. The cover to the gasoline can, which screwed on, was gone, and it was claimed it was later found in the front end of the store, under a pile of partly-burned goods. Mr. Boyer did not go to Grand Rapids as he expected; he says because he was not feeling well, and because he thought Mrs. Stewart might have trouble in opening up the store; and he denied that he had any knowledge of the fire, or of what caused it, until the morning after the fire. The insurance company refused to pay the insurance, claiming that the conditions of the policy had been violated by allowing gasoline upon the premises without the written consent of the company, and also claiming the plaintiff was responsible for the burning of the building.
Upon the trial, after all the testimony was in, the circuit judge directed the jury to render a verdict for the defendant, upon the theory that the policy was void because plaintiff violated its conditions by allowing gasoline upon the premises. It is claimed by plaintiff that “forfeitures are not favored in the law; that, to enforce the condition in the policy in suit, it is the duty of the defendant to show some substantial violation of the condition; it must not only show a viplation, but it must show a violation of the very words of the condition,' and, as before stated, such violation must be substantial, and not merely technical, fictitious, or imaginary,”—citing Bates v. Benefit Ass’n, 51 Mich. 587 (17 N. W. 67). It is said that having gasoline in the back portion of the building temporarily was not such a violation of the conditions of the policy as to make it void; citing Hynds v. Insurance Co., 11 N. Y. 554; Williams v. Insurance Co., 54 N. Y. 569 (13 Am. Rep. 620); Smith v. Insurance Co., 107 Mich. 270 (65 N. W. 236, 30 L. R. A. 368); and other cases.
■ It is insisted the last-named case should decide this one in favor of plaintiff. We cannot agree with counsel in that contention. In the last-named case the gasoline was in the building for the purpose of being used by the painters when they were making ordinary and usual repairs to the building by painting it where it needed painting. The court discussed the questions involved at length, citing many authorities, and held, in substance, that the making of ordinary repairs, in a reasonable way, even though it increased the risk while the work was going on, and even though an article was used in the work the use of which in the business carried on in the building was prohibited by the policy, would not avoid the policy; that if the use of naphtha at the time and in the manner in which it was used was reasonable and proper in the repair of the building, having reference to the danger from fire as well as to other considerations, it would not render the policy void, but the question was a proper one for the jury. The case proceeded upon the theory that it was in the contemplation of the parties that the insured building should be kept in repair, and that what it was reasonably necessary to do to 'accomplish that purpose would not avoid the policy. But there can be no such claim made here. It is a well-known fact that gasoline is a dangerous article to have in and about a building. The parties had a right to contract that it should not be allowed upon the premises without the written consent of the company. They made such a contract. Gasoline was brought upon the premises, not for the purpose of being used in a reasonable way for necessary repairs, but, according to the version of the plaintiff, for the purpose of using it in a gasoline stove in an up stairs room, having no direct connection with the store, but reached from an outside stairway. "Would it be claimed that a gasoline stove could be used without the consent of the company, and that its use would not invalidate the policy ? If not, could the keeping of gasoline be allowed on the premises for the purpose of using it in a stove without the consent of the company, and the policy remain good? If so, how much might be kept? And for how long ? It seems to me to ask these questions is to answer them against the claim of the plaintiff. The language of the contract is plain and unambiguous, and the parties are bound by it. Vandervolgen v. Assuranee Co., 123 Mich. 291 (82 N. W. 46); Imperial Fire Ins. Co. v. County of Coos, 151 U. S. 462 (14 Sup. Ct. 379); London, etc., Ins. Co. v. Fischer, 34 C. C. A. 503, 92 Fed. 500; Liverpool, etc., Ins. Co. v. Gunther, 116 U. S. 113 (6 Sup. Ct. 306); Ostr. Fire Ins. (2d Ed.) § 25; 1 Wood, Fire Ins. § 58. The other cases cited by counsel are easily distinguished from this one.
It is claimed by counsel that the goods which were insured were in the three-story, composition roof, brick building, while the gasoline was in the one-story building, and did not come within the prohibition of the policy. We think this too technical. Permission was given to remove the insured property to the three-story, composition roof, brick building, occupied as a boot and shoe store, and situated at No. 72 East Eighth street. When this permission was granted, No. 72 included the rear portion of this store as well as the front portion. Both, portions had been occupied for a long time as one store. When the three-story building was erected, there was a door five feet wide and a window three feet wide in the rear partition thereof. When the one-story addition was built, the window sash and the door were removed, and both portions of the room for many years were used as No. 72 East Eighth street, and were so used by the plaintiff when the fire occurred. Some of his stock of goods were there. It is true a rough door had been put in the doorway, which, fastened with a string upon the inside, but both portions were used as one place of business.
It is said there is no evidence in the case tending to show that the gasoline was the cause of the fire; that the fact that the rear portion of the store did not burn is conclusive that the gasoline in no way contributed to the loss; and that the statute of 1897 (sections 5180-5182, 2 Comp. Laws 1897) was designed to prevent the forfeiture of fire-insurance policies by the violation of any condition of the policy when such violation has been without prejudice to the insurer, as is indicated by its title; and that, if we are guided by the title of the act, this case comes within it. It is said any other limitations in the body of the act are unauthorized and void, because in conflict with section 20 of article 4 of the Constitution. It is also said the act, with these limitations left out, is complete, and therefore valid. It is true the body of an act must not, under our Constitution, contain provisions contrary to, or not germane to, the subject-matter indicated in the title; but we do not understand the body of the act must contain all the provisions it might contain under the title to save the act from being unconstitutional. The body of the act contains no provisions not germane to the subject indicated by the title, and not authorized by it. In the absence of the statute, it is clear a breach of the contract of insurance would avoid the policy. Shelden v. Insurance Co., ante, 303 (82 N. W. 1068). The statute of 1897, by its terms, does not take this case out of that rule. The loss occurred during a breach of the contract, and while its terms were being violated. The statute does not provide that under such circumstances the policy shall be valid.
Judgment is affirmed.
The other Justices concurred. | [
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Martin Cn. J.:
We think the Circuit Judge erred in sustaining the objections made to the questions propounded to Pringle, as to the statements of Pool to Mm, touching the schedule. Although the assignment may then have been so far completed as to render it a valid conveyance of Pool’s property, m the absence of fraud, (which is a question not submitted to us) yet these statements, whatever they were, appear to have been made before the schedule was made out and attached, and while Pool was making it. He still had the ostensible custody of the property, but whether under Carr’s employment, or in his own right, was a question to be determined on the trial. The transaction was claimed to be fraudulent, and the defendant below was attempting to prove it to be such. Pringle represented some of the creditors of Pool, and interrogated liim respecting the schedule. Situated as Pool was in relation to the assignment, the property and the assignee, and the object of the inquiry being to ascertain the real nature of the transaction, his answers were competent evidence, and should have been admitted. They would not be the statements of an indifferent party, nor would the evidence be hearsay; but the statements of an actor pending the transaction, made before its full completion. In cases where fraud is the subject of investigation, the statements of the parties charged with it are, and must of necessity be, permissible in evidence if made before the instrument charged to be fraudulent is completed, or while it is being made. Othenvise in the great majority of cases fraud as a fact could never be shown. It would not only be an unsafe but an unjust rule, which should confine a party attaching an instrument upon such ground, to the testimony of the party charged with the fraud. It is claimed that these statements, so long as the assignment had been made, were not a part of the res gestee, and consequently the evidence of Pringle would be hearsay — Pool being the only competent witness, by whom to prove the facts squght to be established. As an actor, his statements may be-proven by any one who heard them, as well as by himself, even although his statements were not strictly res gestae, not being facts in the transaction, nor made by him while in the act of making the schedule, although made during the period which elapsed between its commencement and completion. Much difficulty exists at times in determining Avhat declarations are res gestee, but there is none in holding that the declarations of a party in interest, although at the time he is taking measures to divest himself of his interest, or that those of an actor, before -the transaction is completed, are admissible evidence, on the ground of such interest, or relation to the transaction.
For this error, we think the judgment should be reversed, and a new trial granted.
The third and fourth assignments of error are determined by the cases of Oliver v. Eaton, and Bagg v. Jerome, in 7th Michigan Reports.
The other Justices concurred.
Judgment reversed. | [
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Campbell J.:
The demurrer, we think, ought to have been sustained? Whether we look at the form of the plea, or the subject matter sought to be introduced by it.
A plea in abatement must have the highest degree of certainty and precision: — 1 Chitty Pl. 395; Findley v. People, 1 Mich. 235 — and therefore every allegation necessary to make out the case covered by it must be distinctly and not inferentially- set forth. This plea would require some liberality to sustain it if put in as a plea in bar, under any system of special pleading. To say nothing of other omissions, it contains no allegation from which we can infer that the writ of replevin, under which it alleges the property to have been first taken by Laing, as Sheriff, was directed against the property levied upon. If a Sheriff, with the most regular writ, should seize property not described in his writ, he certainly could not justify under it. Neither does it appear that any affidavit, was annexed to the writ, without which the Sheriff is expressly forbidden to serve it: — Comp. L. p. 1331, §5011 These and other omissions, not perhaps so substantial, would render the plea demurrable, if a plea in abatement were proper at all.
But we think the defense, if valid, should have been offered in bar, and not in abatement. The object of our statutory replevin is to determine the right of possession at the commencement of the action, as well as title to the property for temporary or permanent purposes connected with that possession. Anything going to show that the plaintiff in replevin had no right to the possession when he commenced his suit, is a complete bar to his action. And proof that a Sheriff had taken property on a lawful writ from the plaintiff, and continued lawfully to hold it under that writ, when replevin was brought, would go to negative the plaintiff’s right of possession, and, of course, defeat his suit. «The statute requires an affidavit that the plaintiff is entitled to the 'possession, that the defendant unlawfully detains the property, and that it has not been taken by any of various kinds of process enumerated; but does not in terms require anything more. These facts, if true, cover every case which, could ordinarily arise. If untrue, they go to defeat the right of action entirely, as existing at that time, not only in that suit, but in any action whatever depending on a right of possession. Such a showing is not the ordinary office of a plea in abatement, which, in respect to a former suit pending, does not deny or put in issue the cause of action, but merely objects that it is already in course of litigation.
Whether cross replevins between the same parties will lie, where no new parties are introduced, is a question entirely beside this case. It may be worthy of consideration however, whether, under a plea in abatement, if it lies, the statute provides for a return of the property, or an assessment of damages. It may be found that the provisions on this subject have a bearing on the question of pleading. We are not disposed to consider these questions any further than may be necessary in this case.
In the present case, the plea does not show any idennity of issues, and it would be impossible in the present action to try the merits of the former action. In that, the question involved was simply the title of the Goulds to possession as against the two Beldens; all the other questions of title and damages being incidental, and that being the only ground on which the action was maintainable. In the present action, the question of possessory right arises— according to the plea — not between Belden and the Goulds, but between Belden & Laing. And Laing’s possessory right, if his writ was valid, could not be impaired or affected, although Belden might show a perfect title as against the Goulds. The issues are entirely different upon the right of possession, which is the only foundation of either action.
Judgment must be reversed with costs, and the defendants are required to plead’ over.
Manning and Christiancy JJ. concurred. | [
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Campbell J.:
The defendant in error having obtained a judgment below against the plaintiff in error, for breach of promise to marry, it is alleged that errors occurred upon the trial below, first in hot requiring proof that the plaintiff in error was of full age when he made the promise; second, in allowing proof that he borrowed money of the defendant in error, and renewed his notes one and two years upon his last visit to her, about a week before he married another; third, in excluding proof of the frequent intermarriage of the ancestors of the parties, who were cousins, and of the evil tendency of the marriage of relations in producing deformed or sickly and imbecile offspring.
We think the court below charged correctly on the question, of infancy, which should have been proved if it existed when the contract was made. The case of Beaubien v. Cicotte [ante, p. 9] applies only to the onus prohandi upon the competency of testators, and is confined entirely to such cases, for peculiar reasons not attaching elsewhere. Parties who are living, and sui juris, are able to produce testimony for themselves. And infancy is a substantive defense, requiring affirmative proof.
There was no error in allowing proof of the money transactions. In cases of this kind it is important for the jury to understand, as fully as possible, the mutual conduct of the parties during the existence of the contract, as well as the causes and circumstances attending the breaking off of the engagement. These transactions have some significance in showing the degree of confidence and intimacy existing, and have or may have a very decided bearing upon the view to be taken of the breaking of the promise. An engagement broken off suddenly and without warning, would very naturally create more pain and mortification than if ended under other circumstances; and if a jury were to regard this conduct concerning money matters as calculated, under the circumstances, to have caused additional ground of pain or grievance to the defendant in error, we think they would not be violating ordinary probabilities. We cannot presume that they included the debt in their estimate of damages.
Neither do we regard the exclusion of the evidence concerning the intermarriage of the relatives of the parties, and the physiological consequences referred to, as incorrect. It was undoubtedly competent to show the cousinship of the parties themselves, for all facts bearing upon their intimacy were material, and this would have some weight in explaining it. But plaintiff in error cannot be presumed to have been ignorant of these relationships during the continuance of his intimacy with defendant; and whether ignorant or not, he had means of knowing. Had he broken off the match upon any such avowed grounds, the jury, if they regarded the reasons as given in good faith, would be justified in considering the absence of a wanton and capricious disposition as less ag gravating to the feelings of the defendant than an abrupt and causeless violation of the agreement. But it does not appear that any attempt was made to show that any of these matters were the real or ostensible causes for breaking the ma£ch, or were communicated as such to the lady, or her friend's on her behalf. We do not think them admissible as independant facts. The law permits such marriages. The condition, health or prospects of the parties are not affected by them now any more than originally? and they are bound to consider such matters when they enter into their engagement. A change of health, or any other essential change in condition, may be in some cases a complete bar to an action of this kind; and so may the recent discovery of facts be a bar, or a cause for mitigation of damages, if the party acts upon it in good faith in receding from his contract. But a ground such as is here taken, is of no weight whatever, when it is not shown to have been the real and honest cause of the breach of engagement.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell J.:
The claim in controversy against the estate of Abram LaRoe, is for money laid out and services rendered under a contract made with him in his lifetime. By the terms of the contract, as found by the court, Freeland was to bo paid in case LaRoe returned from California, but if he should not return, Freeland was to have the land. As LaRoe did not return, there was no breach of the contract, unless he had put it out of his own power to fulfil by some other disposition of the property. As this is not shown, Freeland is bound to look to the land as his pay, and not to set up a personal claim against the estate. Whether the Statute of Frauds will apply to prevent his obtaining a specific performance, is a question which can be more properly decided when he shall present his case with its circumstances in a court of equity.
The judgment .of the Circuit Court, allowing the claim, must be reversed, with costs, and a judgment of disallowance entered upon the finding.
We take occasion to suggest that, under our statutes, the more correct form of judgment in the Circuit Court on appeal from the allowance of a claim, would be an adjudication of the allowance of the claim at a certain sum, or a disallowance, and not a judgment against the administrator in the common law form. The statute regards the action of the court as analogous to that of the commissioners:— Comp. L. p. 891, §2941. A formal judgment may not be erroneous in law, but is liable to misapprehension, inasmuch as it can not be literally enforced according to its terms.
The other Justices concurred.
Judgment reversed. | [
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] |
Campbell J.:
It is claimed by the plaintiff in error, that he should not be held responsible to the defendant in error for the articles furnished, because, by reason of the want of power in the defendant in error, no title passed to the articles in question-
TJpon a careful examination of the charter of the Detroit Water Commissioners, we think the Board had power to make such a contract as that made by Houghton in their name. In carrying out the duty of supplying water to the city of Detroit, it was not contemplated that the Board should enter into a general plumbing business; but a regard to the safety of their works requires that they should have some discretionary power, not only in supervising the connections made ,,-by others, but, when large quantities of water are likely to be used, in using means themselves to prevent waste and ensure security. And we see nothing in the charter to prevent [such work as that done in the case before us, if regarded in good faith, by the proper authorities, as a proper ease for the exercise of such discretion. And, so far as third persons are concerned, the superintendent and engineer is made by the regulations the proper medium of negotiation. The duties imposed upon the Board require constant attention, and it could never have been, supposed that such a body, serving gratuitously, and appointed as business men and not as engineers, should devote their time daily to the details of such business. That work must fall upon agents, and the officer referred to is chosen to exercise a general supervision over the whole arrangements, subject,1 of course, to the control of the Board. And while, in the present case, he exceeded his instructions, and the Board had a right, which they exercised, to repudiate his acts, the effect of such repudiation could not injuriously affect third persons, or deprive them of rights obtained in good faith by dealing with an agent upon 'whose authority they had a right to rely. We do not think the Board can regard Mr. Hale as unlawfully in possession of the property in question, and the effect of their refusal to ratify Houghton’s contract amounts, therefore, to an election to look to the latter for payment.
This being the case, Houghton became by this refusal fully empowered to sue in his own name for the labor aijd materials furnished. And although the charge, so far as concerned the authority of the Board, was erroneous, yet the error was not material, and ought not to cause a reversal of the judgment.'
The judgment must be affirmed with costs.
^The other Justices concurred. | [
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Campbell J,:
This suit is brought to recover an ascertained sum found by the united action of the township boards to be due from Oregon to Marathon, upon a division of the latter township, whereby the former was set apart and became liable for its share of the debts to be thus determined:— Comp. B. 247-8.
Putting aside, for the present, all questions concerning the regularity or sufficiency of the proceeding's of the local authorities, the important consideration is suggested, whether an action will lie for the sum ascertained. Townships may be sued in some cases, and judgments obtained against them; but it is claimed by the defendant that actions will not lie in cases like the present.
By examining the statute which fixes the liability upon judgments, we find that when a judgment is obtained against a township “no execution shall be awarded or issued upon such judgment, but' the same, unless reversed, shall be levied and collected as other township-charges,” &c.— Comp. B. p. 1309, §4917. A judgment which can only be enforced in this way, amounts practically to nothing more than a fixed and unchangeable ascertainment or assessment of indebtedness, whereby an open claim becomes liquidated. It is placed on the foot ing of a definitely ascertained township charge. The only way to enforce it, if resisted, is by mandamus.
The action in this case is brought, not upon an open and disputed account, but upon a liquidated claim, determined by a statutory board or tribunal. Although the statute declares the basis of contribution, upon the division of a township, to be the assessment roll previous to the division, yet it is not pretended that any claim for contribution could be enforced until the two township boards convened together and determined the amount to be contributed by each. If the action lies, it lies upon the amount so ascertained and apportioned, and not upon an open account. "Whether any revisory power exists in any court to review the proceedings of the town boards, has not been argued. If such power exists anywhere, it can only be under certiorari, Avhich has not been taken, and which could not now be had, because of the lapse of time. This award or determination is absolute, unless set aside, — if indeed there is anywhere power to set it aside.
Being ascertained by the tribunal, referred to, it becomes, under the statute, a charge upon the township.— And being such a charge, it is the duty of the town officers to see that it is paid. And if they fail to perform this duty, requiring the claimant to obtain judgment upon it cannot serve either to liquidate it any more perfectly, or to make it any more definitely a township charge. Nor would any action of the town authorities, or of the township itself avail, to destroy the validity of the finding.
Where a duty exists in a township to pay a specific and ascertained charge, it would be unjust to both parties, debtor and creditor, to permit or require a suit at law, when the judgment cannot be collected by execution. The township ought not to be put to useless expense by the fault of its officers, and the creditor ought not to be put to delay, or a double pursuit.
It has been held in a great many cases, that mandamus was the proper remedy to compel satisfaction, by a municipal body of this kind, of a liquidated demand. Such has been the course in regard to the damages ascertained by appraisers upon opening highways: — Harrington v. County Commissioners of Berkshire, 22 Pick. 263; People v. Township Board of La Grange, 2 Mich. 187; People v. Supervisors of St. Lawrence, 5 Cow. 292; People v. Supervisors of Kings County, 16 Wend. 520; Treat v. Middletown, 8 Conn. 243; People v. Supervisors of Westchester, 4 Barb. 64; Miller v. Bridgewater, 4 Zab. 54.
In this state a mandamus has been issued to compel a board of supervisors to allow the amount of a claim which was adjusted by proper officers under the law: — People v. Supervisors of Macomb, 3 Mich. 475. And we have had occasion to compel the granting of a warrant upon an adjusted claim, in the case of People v. Auditors of Wayne County, 5 Mich. 223. The case of the Commissioners of Highways of Niles v. Martin, 4 Mich. 557, contains some remarks u2>on the impi’opi’iety of subjecting towns to actions for the faults of their officer’s.
In New York the following cases have also a bearing Upon the general question of the projiriety of a mandamus, instead of an action: —People v. Edmunds, 15 Barb. 529 ; Same v. Same, 19 Barb. 468; People v. Supervisors of Columbia, 10 Wend. 363; Bryce v. Supervisors of Cayuga County, 20 Barb. 294. And in Wisconsin the case of School District No. 2 v. School District No. 1, 3 Wis. 333, which was a case of a division of a school district, 'decided that an action would not lie for the sum awarded. It is true the law required it to be levied as if voted. Í8ut we do not think the duty there any more positive than here.
A distinction is asserted between liquidated demands of this kind, and judgments, because the statute is express that on these no execution shall be awarded, “ but the same shall be levied and collected as other township charges.”— If this ascertained balance is a township charge, then the statute in express terms makes the rule of levying and collecting it the rule of levying and collecting a judgment. The statute .is express that the township shall be charged with it, and shall pay it. The township board are authorized to audit and allow claims against the town, and the amounts allowed by them are required to be paid by the Treasurer on their order. There are also claims for damages on the opening of highways. When settled by the commissioners and owner, as they might be when the pro.-» visions of the statutes now under consideration were passed, the law declared “such person shall be entitled to an order from the township board, upon the treasurer of the township, for the amount of damages specified in such agreement:”— R. S. 1846 p. 134. “If appraised, they shall be levied and collected in the township within which such highway is situated, and shall be paid by the township treasurer upon the order of the township board, as other township charges:” — p. 135. The language in regard to judgments against counties is the same as against towns. What then are township charges? We have seen how they are paid, which is by an order from the township board upon the treasurer; and by the law prescribing his general duties, he is required to pay*over and account for moneys in his hands “ according to the order of such township, or the officers thereof duly authorized in that behalf.’’ Comp. L. § 568. It is fair to assume that any amount which is a fixed liability of the township, and entitled to be paid, is a township charge. And certainly, a claim which is to be levied and collected like other township charges, is not to be preferred, above other township charges among which it is classed, or enforced differently. The very object of such a statute seems to be to prevent a judgment creditor of a township, from obtaining a preference. And there is no reason in the- world why one ascertained creditor of a township, should not stand on an equality with all others.
We have no statute now which defines a township eharge at all; but the Statutes of 1838 did so, and recognized claims allowed by the board as such: and they were included in the 'taxes to be raised, in addition to the sums voted by the township meeting: — R. S. of 1838 p. 64. — . No vote beyond their mere allowance was required by law, to include them within the tax levy; but the clerk certified to the commissioners such amounts as were ’•'•to be \raised,” not such amounts as the township or board had 'voted: R. S. 1838, p. 82. The present law requires the clerk to certify in the same manner to the supervisor the amount to be raised for township purposes.
The statutes relative to the voting of money authorize the township meeting to vote such sums as they may deem necessary for defraying all proper charges and expenses arising in the township. The board, upon the neglect or refusal of such meeting to vote “ such sums as may be necessary to defray the ordinary township expenses,” may vote such sums themselves. If the term “charges” means what we have referred to as “ township charges,” and does not come within the term “ ordinary expenses,” then, if after allowance by the board, or when put in judgment, they require any further action, we should have the strange result of a board authorized to repair the neglect of the township for ordinary expenses, yet not authorized to provide for acknowledged and liquidated debts. This would enable the township to repudiate. But although the use of the term “charges” in two different senses is awkward, yet fortunately wo have the means of tracing it out in its origin. The Revised Statutes of 1838, p. 57, authorized the township meeting to “vote such sums of money as they shall judge necessary for the purpose of supporting and maintaining the poor, and for all other necesary and proper charges arising in the township.” And yet the meeting had no power whatever to vote a dollar to pay allowed and li quidated claims; and the term “ charges ” thus used, means any matters which were supposed likely to require expenditures in amounts either definite or indefinite. But in declaring the effect of the allowed claims, the law: requires them to be raised in addition to the amount voted by the town meeting, and puts each claim allowed by the board on the same footing with the aggregate voted sum laid in one general amount by the meeting on the township, declaring the sums thus ascertained by either body “ township charges.” A “ township charge,” then, is fixed in amount. But the charges to be provided for by township vote, are not necessarily liabilities existing, and are. merely estimated sources of expendi-. ture, which may or may not include fixed debts. There are some matters, at least, which are, under no view^ ordinary township expenses', such as those sums which the Board of Supervisors may authorize to be raised by the township for special purposes, as mentioned in §345 of the Compiled Laws; and probably many others; and such matters could not be wisely trusted to the discretion of the board. But there would be no very good reason for leaving liquidated claims to the sole discretion of the township. And if left to them at all, it would be exceedingly difficult to reach such a body by coercive, measures. It is certainly no violation of terms to class the payment of debts ascertained among ordinary expenses,
We think cases like this call for a similar action to that had in the case of The People v. The Supervisors of Macomb County. There the supervisors were compelled to allow the claim as a ministerial act, because it had already been legally adjusted by an authorized board. Should the township board of Oregon refuse to allow this claim and give an order on the treasurer for the amount, we think a mandamus is the proper remedy. And a refusal by any other township officer to do any act which the law requires — which, however is not to be anticipated in any case — would subject him in like manner to a similar mandate.
The court below committed no error in holding that the plaintiff’s action would not lie. The judgment must be affirmed with costs.
Martin Cu. J. and Manning J. concurred.
Christiancy J.
I am unable to concur in the opinion of my brethren in this case. I admit the correctness of all the decisions which they have cited, but I do not think- them applicable to the present case.
In all the cases cited, nothing remained to be done but the performance of a clear ministerial duty, imposed by law upon the officer or board to whom the mandamus was directed. The county, township or school district represented by such officers or board, was not in default; but the neglect or refusal of such board or officers, ivas the only obstacle of which the relator could complain.
If such be the fact in the case before US' — if the toAvnsliip of Oregon has performed all its duties, in reference to the claim of the township of Marathon, and nothing-remains to be done but the performance of a clear ministerial duty of the township board, township clerk, or supervisor of Oregon, in voting-, certifying or assessing- the tax, then the remedy of the relator is by mandamus, to compel the board, the clerk or supervisor, to perform that ministerial duty.
But so far from being the duty of these officers, there is, I think, no power in any or all of them combined, to raise the tax for the payment of this claim, until either the inhabitants have voted to raise it, or until, as a substitute for this vote, a judgment has been obtained against the township.
That the action of the township boards of the respective townships, in making the apportionment, if legally performed, has made this a fixed and definite townshij) charge, I fully admit. If such action has not been legal, then certainly no duty is imposed upon any officers to raise the tax, and no mandamus should issue to compel it. In discussing the form of remedy, however, the legality of the action of the board must be assumed.
But the mere fact that this claim has become a fixed and definite township charge, does not authorize the supervisor to assess a tax for its payment, nor the clerk to certify it to him for assessment.
Ordinary township expenses, when audited and allowed by the board, and especially when orders have been issued for them upon the treasurer, are quite as clearly fixed and definite township charges: — Gomp. JO. §564. But the supervisor cannot, even in such cases, assess the tax for the payment of such charges, nor could the clerk certify the amount to him for assessment, until either the inhabitants, at a legal meeting, have voted to raise the amount (It. /S'. Gh. 16 § 3; Gomp. L. §495) or, in default of such vote by the inhabitants, the township board have voted .to raise it, pursuant to the act of March. 81, 1849 (Gomp. JO. § 597).
But the claim in question in this case, does not, I think, come within the designation of ordinary township expenses; and therefore cannot be voted by the township board.— From the adoption of the Revised Statutes of 1846 until the passage of this act of 1849, there was, I think, no power in any or all the township officers to raise or assess a tax, even for ordinary township expenses, until the inhabitants at a legal meeting had voted to raise the sum. In connection with this act of 1849, see R. S. Ch. 16, §§'12 to 15; Comp. L. §§ 564 to 561. In this respect the Revision of 1838 (p. 64 §40) differed materially from that of 1846 on the same subject: — (Comp. L. §564.) The former, after providing for the auditing and allowance of claims, &c., by the township board, and that the sums so allowed, “as well as any sum directed by a vote of the township to be raised for township purposes, shall be considered proper township charges,” added the words: “ and shall be raised on the taxable pi'operty of the township in the manner provided by law.” This latter provision was left out of the Revision of 1846. And the following additional provisions in the latter Revision, not found in the Revision of 1838, show, I think, very clearly, that the provision just quoted was purposely omitted in the Revision of 1846 ; and that by the latter Revision the Legislature plainly indicate the intent to withhold from the township board the right they had formerly possessed of raising taxes, for claims audited and allowed by them, without a vote of the inhabitants.— These additional provisions are, 1st: That the township board is required to meet annually on the Tuesday next preceding the annual township meeting, for the purpose of auditing and settling all claims against the township: — (Comp. L. §564): and 2d: That “all accounts audited by such board shall be filed, and presented by such clerk for the inspection of any of the inhabitants of the township, and shall be produced at the next annual township meeting, and there read by him, if the same shall be required by the meeting.” This was doubtless required to enable the meeting to vote the sums necessary for their payment under section three of the same chapter {Comp. L. §495).
Thus stood the law till the act of 1849 (Comp. L. §597), which provides that “whenever the qualified electors of any township, at the annual township meeting, shall neglect or refuse to vote such sum or swns of money as may be necessary to defray the ordinary toionship expenses, the township board of any such township is hereby authorized, at any regular meeting, to vote such sum or sums as may be necessary for that purpose, not exceeding such amounts as are or may be limited by law.’’ This act, by a necessary implication, prohibits the board from “voting” any sum for any purpose other than “ ordinary township expenses.” And unless the claim before us is one for ordinary township expenses, it can only be raised by a vote of the inhabitants. This my brethren admit, and they therefore hold it to be an ordinary township expense.— But to reach this conclusion a criterion is adopted for distinguishing ordinary from extraordinary expenses, which, it seems to me, does violence both to the language and the spirit of the statute. The distinction is made to depend solely upon the question whether it is liquidated and has been allowed by the board, or is unliquidated and has not been allowed. If such was the meaning of the Legislature, they were exceedingly unfortunate in their mode of expressing it. To get any such idea from the language, requires divination rather than interpretation. The distinction intended by the statute depends, I think, entirely upon the nature or character of the “ expense,” — whether such expense was of the kind usually, ordinarily, incurred in the transaction of the common township business, or such as could only be likely to happen on extraordinary occasions or unusual exigencies. Whatever difficulty there might be in any case, in determining whether a claim fell under the one or the other, there can be none in the case before us. This is a claim which springs from facts existing before the township; the claim came into existence with the township, and as a consequence of its creation. It can never occur again. It is much larger in amount than the probable ordinary expenses of an entire year, or perhaps several years.
Claims for extraordinary expenses may be audited and allowed, as well as others, and there may be unliquidated and unaudited claims for ordinary expenses; though probably no tax could be assessed by the board for the latter before allowance.
The conclusion .at which my brethren have arrived necessarily assumes, that the power of the board to vote the tax is coextensive with their power to audit and allow claims. I do not think such a conclusion warranted by the statute. The board are expressly authorized to audit and settle “ all claims against the township”: — Comp. L. §564. Their power to vote a tax is, by words equally express, confined to ordinary township expenses'.— Comp. L. §597. Why is the latter limited and the former unlimited?
The township clerk has no authority to determine the amount to be raised by tax; nor can he certify any sum to the supervisor for that purpose simply because it has been audited and. allowed as a township charge; much less is he required to do so: if such were his duty, the provision authorizing- the township board to vote it, when for ordinary expenses, would be utterly useless and nonsesical, not to say repugnant; for as clerk of the board he is bound to file and present all the accounts and claims which have been audited and allowed.' The recognition or allowance of a claim, as a township charge, is one thing; the determination to raise the amount by a tax, is another and different thing, and one over which the clerk has no power, except to certify the fact, when it has been determined by the inhabitants or the board.
It must be borne in mind that this claim was adjusted by the township boards in 1856, under substantially the present law: and the question whether a mandamus will lie, must depend upon the law which was then in force, or the present law. It cannot be helped by the statute of 1838 long- before repealed. My brethren seem to me to take it for granted that, because a mandamus would have lain under the statute of 1838, it may also be supported under the statutes, now in force, which are essentially different. I cannot see how the conclusion follows from the premises.
Without a vote of the inhabitants, then, the township clerk could, I think, have no power to certify this claim to the supervisor under Comp. L. § 807, or Laws of 1858, p. 181; nor the supervisor to assess it under Comp. L. § 815, or Laws of 1858, p. 182. Though the statute makes it a township charge, there is nothing in the language conferring the power, or imposing' the duty, upon any officer or board, to vote or assess a tax forks payment, more than for other township charges not covered by the act of 1849. It does not allude to the subject of levying or collecting the sum by tax. The language of the statute is, “and each township shall thereafter^ be charged with and pay its share of the debts, according to such apportionment.” We must therefore look to some other provision for the power and the duty to impose the tax.
It is only necessary here to say, that if, after the apportionment, each or either of these townships should vote to raise the amount apportioned to it, and any township officer of either should refuse to perform any ministerial duty required of him for imposing the tax, a mandamus might be issued at the instance of a creditor whose claim was against the original township before the division, to compel such defaulting officer of either township to perform his duty. And the township to which the sum was due would be entitled to the like remedy.
But if a mandamus is to issue to compel the assessment of this tax, to whom shall it issue, and what officer or board is to be compelled to raise the tax? It must issue,' if at all, to some board or officer having a power, under some statute, to impose the tax had no mandamus been issued: for no township board or officer has any common law power to levy this or any other tax; nor can the mandate of the writ give the power, or impose the duty. It can simply enforce the execution of a power and the performance of a duty already existing.
As no power in the township is competent to vote or order this tax but the inhabitants at a legal meeting — ■ they having neglected to vote it, the default is with them, not with their officers. Shall the writ issue to the inhabitants to compel them to vote the raising of the tax? This will not be claimed, as it might exceed the power of the court to compel obedience to the writ.
The case of School District No. 2 v. School District No. 1, 3 Wis. 333, cited by my brother Campbell as deciding the question before us, somewhat resembles the present case in some of its circumstances; but the statute of that state providing for the division of school districts is essentially different from ours for the division of townships; and it is precisely upon this difference that the decision of the court in that case rests. The Wisconsin statute required the district board of the district retaining the schoolhouse, to raise the amount “ in the same manner as if the same hacl been authorized by a vote of their district for building a school-house;” that is, by a tax which the board had the power, in such case, to assess. If our statute authorized the supervisor to assess the necessary tax in the present case, in the same manner as if authorized by a vote of the inhabitants, the cases would be parallel, and no one would doubt the remedy by mandamus. Such is the provision of our own statutes in reference to the division of school districts. Comp. L. §2820.
Is there, then, no mode provided to compel the raising of this tax without a vote of the inhabitants? I answer; the statute has provided a remedy, plain, simple and adequate ; and that remedy is by obtaining a judgment against the township. The judgment of a court of competent jurisdiction against the township, dispenses with a vote of the inhabitants, furnishes an equivalent safeguard against dishonesty and abuse, and imposes upon the supervisor the same duties in regard to the levying of the tax as would be imposed by a vote of the inhabitants. And upon producing to the supervisor a certified copy of the judgment, and requesting him to levy the amount, he would, I think, be bound to assess it without a certificate from the township clerk. If not, the clerk upon receiving the like copy of the judgment, and the request, would be bound to certify the amount to the supervisor. Such, I think, is the effect of section 7, chapter 148 (§ 4917) of Compiled Laws, which is in the following words : “ When a judgment shall be recovered against any township, or against any township officers, in an action prosecuted by or against them in their name of office, no execution shall be awarded or [issued upon such udgment, but the rsame, Lunless reversed, shall be levied and collected as other township charges; 'and when so collected, shall be paid by the township treasurer to the person to whom the same shall have been adjudged, upon the delivery of a proper voucher therefor.”
This is the only provision which in any manner alludes to or requires the levying of a tax where it has not been, voted by the inhabitants, or which imposes any duty upon any officer to levy or collect. It is to be “levied and collected as other township charges.” Other township charges are levied by the supervisor, and collected by the treasurer. After such judgment duly brought to the notice of the supervisor, and a request to levy the tax, his duty to assess it would be clear and plain; and if he refuse, he may be compelled by mandamus.
But my brethren hold, that the section to which I allude gives no more authority to assess than existed without it. This, I think, is an error. There is not a word to be found in the provision making the present claim a township charge, nor in any provision in reference to the township board, or any township officer, indicating, in the remotest degree, how the amount is to be. collected, nor referring at all to the subject of its collection, until we reach this provision for the collection of a judgment. — • Hence the common law remedy by suit is necessarily implied: — 1 Chit. Pl. 112; Stafford v. Mayor, 6 Johns, 1; Hawkins v. Trustees, 1 Wend. 53; People v. Brook lyn, 1 Wend. 318; People v. Mayor, 25 Wend. 680 ; Ex parte Lynch, 2 Hill, 45. And the language of this section is, I think, quite as clear an authority for the supervisor to assess a tax, as the provision of the law of 1838 (jp. 64 §40) was for the township board to order it. Neither imposes the duty expressly upon any particular officer or board — both, however, are equally clear by reference. But if this provision (§49D7) only authorizes the board to order the tax, it is still the first and only provision in our present statute by which they have any such authority; and this is after judgment.
My brethren profess to see] in this provision but one object — that of preventing a judgment creditor from obtaining a preference. This is to suppose the Legislature were providing a remedy against a township as an insolvent debtor' — are idea which I cannot think ever occurred to the Legislature. I think this provision, taken in connection with the other provisions cited, indicates an intention to recognize the common law right of bringing suit against a township, not only for torts (when they may be liable) but on all claims disputed by the township and not allowed by the board, as well as those which they have the right to allow, but for which they can not vote, and the inhabitants refuse to vote, a tax; that an execution was denied, and a tax substituted, because townships generally have no property which could be taken on execution, without great detriment to the public interest; and,^ however collected, the amount must ultimately be raised by tax.
Whether the Legislature have adopted the best possible mode for accomplishing the objects they had in view, by these several provisions, I have not undertaken to inquire; because I have not felt at liberty to disregard the provisions they have seen fit to enact, and to substitute others which I might think they should have enac ed. I Avillj however, say that I do not think the operation of these statutes will be improved by the construction which my brethren have felt it their duty to adopt.
Judgment affirmed. | [
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] |
The Chibe Justice :
Although the Recorder of Detroit may have power to reserve for our opinion questions which arise upon the trial of offenses against the general laws of the state, he has none to reserve such as arise upon the trial of complaints for the breach of city ordinances.
In the last instance, he acts in the capacity of a municipal officer simply, and in the enforcement of laws of which we can not take judicial cognizance; while in the first instance he acts under general laws, and exercises the power of a Circuit Judge. It is only then, when he acts in this latter capacity, that he can reserve questions — the statute only conferring that power upon Circuit Judges.
The charter, in prescribing the manner in which trials shall be conducted in his court, merely regulated the practice therein. It conferred no power independent of this. Although causes may be removed into this court from the Recorder’s Court, as they may be from the Circuit Court, yet the reservation of questions for our opinion is in no sense a removal of the cause. It remains below. We can render no judgment, nor can vre make any order in it. Our powers are merely advisory.
The case must be dismissed. | [
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The Chibe Justice:
The proceedings under the Bastardy act are purely statutory, and not after the course of the common law. They are anomalous in character, jiartaking in some respects of a civil and in others of a criminal nature. They may be instituted either in the name of the People, or of the complainant, as they are partly for the benefit of such complainant, and partly for the indemnity of the public. The complainant is, in all cases, a witness; no costs follow the judgment, and the issue to be tried is the paternity of the child with which the complainant is pregnant, or of which she has been delivered. No judgment known to the common law follows the verdict, but, if found guilty, the defendant is adjudged to be the father of the child, and made chargeable with its maintenance, with the assistance of the mother, in such manner as the court shall order, and is required to give bonds to the superintendents of the county poor to perform such order, and to indemnify the county against charge for its maintainance. The proceeding- may either be instituted by the female, or by the superintendents of the poor of the county, when such child is chargeable, or likely to become chargeable to the county, and such superintendants have power to compromise and arrange with the putative father relative to the maintainance of the child, and to discharge him from liability for its support. The judgment of the court upon the question of paternity, and the maintenance of the child, is also declared by the statute to be final.
All these things indicate that the examination or trial of the question of paternity is not after, the course of the common law, and that the proceeding is not strictly either civil or criminal; and it follows that no exceptions can be taken upon which a bill can be signed, nor a writ of error issued to remove the record: — See Comp. L. §§4404, 5332, 6083. The Legislature moreover evidently contemplated that the proceedings in the Circuit Court should be summary; and the declaration that the judgment should be final, clearly indicates the intention that the ordinary remedies for reviewing proceedings and correcting errors should not be available to either party. It amounts to a prohibition of exceptions, and of the writ of error, and clearly shows that the proceeding was regarded as extraordinary and anomalous, and that jurisdiction was limited to the Circuit Court.
This court held in Holbrook v. Cook, 5 Mich. 225, that the writ of error will not lie when the proceedings are not after the course of the common law, and that it is not enough that they are had in a court which ordinarily and primarily exercises common law jurisdiction. The proceedings themselves must be after that course, or the remedy by such writ expressly given.
. It follows that the only remedy available to the party aggrieved, is that of the writ of certiorari.
The motion must be granted. | [
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] |
Manning J.:
“The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things to enable any person to carry on the profession, trade, occupation or business, in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars” {Comp. B. §4465), are exempt from levy and sale on execution. The words' “principally engaged,” are not to to be construed with reference to the productiveness or profit of one kind of business over another, where two or more occupations are followed at the same time, but with reference to the occupation or business on which the party chiefly relies for a livelihood, and that engrosses the most of his time and attention; not for a day, or week, or month, but through the year. We therefore think the court erred in allowing the plaintiff below, who is the defendant in error, to prove which of his two occupations, tailoring or farming, would be likely to bring him in the most. A new business, embarked in as an experiment merely, might temporarily produce more, and require more personal attention, than the old, and yet the latter be one’s principal occupation, because mostlrelied on or looked to for a livelihood, and the one that would be held on to if compelled to abandon either.
The judge was requested to charge that, if the plaintiff gave his principal time and attention to the business of tailoring, the property replevied would not be exempt. This he refused, but did • charge the jury that it was proper for them to consider the amount or extent of the different kinds of business in which he was engaged, as well as his personal labor: that personal labor was not a positive or absolute test of the business in which he was principally engaged, but was a circumstance to be left to them for their consideration. There was nothing wrong-in this. Still, the jury may have been influenced more or less in rendering the verdict they did by the evidence already referred to. They probably were.
Judgment is reversed, and new trial ordered.
The other Justices concurred. | [
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Montgomery, C. J.
This is an action for personal injuries. The sole question presented in the case is whether the plaintiff served a notice upon the corporation counsel such as is required by the amendment to the charter of the city of Detroit, being section 46 of chapter 11 of the charter, as amended. This section reads as follows:
“No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within three months from the time of such injury, to the head of the law department, or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof. The provisions of this section shall not be a bar to a suit for any injury for which there is now a lawful cause of action, but for every such injury suit shall be commenced within six months from the time when this act shall take effect.” Act No. 463, Local Acts 1895, § 2.
The injury to the plaintiff occurred on the 5th of July, 1897, and on the 17th of August, 1897, the following notice was served on the head of the law department:
“Detroit, August 17, 1897.
“Hon. Charles Flowers,
“Corporation Counsel,
“ Detroit, Mich.
“ Sir: You are hereby notified that on the 17th day of August, 1897, 1 filed a claim against the city of Detroit for the sum of five thousand dollars ($5,000), and petitioned the common council of the said city to pay me the said sum, as a just compensation for damages sustained by me by reason of personal injuries received on July 5, 1897, by my falling on a defective sidewalk in the said city. Said defective sidewalk was on July 5, 1897, situated on the south side of Cherry'street, between Sixth and Seventh streets, and extending from Seventh street to the first alley east of Seventh street.
“Yours, etc.,
“Mrs. Michael Tattan,
“15 Johnson Street, Detroit, Mich.”
There can be no doubt that this notice sufficiently described the time, place, and cause of the injury, but the learned circuit judge was of the opinion that the nature of the injury was not sufficiently specified. This statute is one in derogation of common right. It should not be construed with liberality against the right of an injured party to maintain an action against the city, but, on the other hand, should receive a reasonably strict construction. By other provisions of the charter it is incumbent upon an injured party to present his claim to the common council, and the case is then open to full investigation. This, as well as the notice to the head of the law department, must precede the institution of suit. As was said by the court in Brown v. City of Owosso, 126 Mich. 91 (85 N. W. 256):
“This notice is not a pleading, and the requirement should not receive so strict a construction as to make it difficult for the average citizen to draw a good notice, especially in view of the evident intention that a substantial statement should be sufficient, and the serious consequences of reliance upon a defective notice until after the expiration of the 60-day period.”
See, also, Wheeler v. City of Detroit, 127 Mich. 329 (86 N. W. 822); Wilton v. City of Flint, 128 Mich. 156 (87 N. W. 86).
But, while the rule for construing this notice is thus liberal, we cannot ignore an express requirement of statute. The statute, in terms, requires that the nature of the injury shall be stated in this notice. Beyond the fact that it is an injury to the person, rather than to property, there is no attempt in this notice to state the nature of the injury at all. We are of the opinion that this is not a compliance with the statute. The case of Lord v. City of Saco, 87 Me. 231 (32 Atl. 887), is directly in point upon this question. See, also, Brown v. Town of Southbury, 53 Conn. 212 (1 Atl. 819).
The judgment will be affirmed.
The other Justices concurred. | [
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] |
Hooker, J.
Previous to January 1, 1897, a corporation called the “American Potato Flour Company, Limited,” was engaged in the business of manufacturing and selling potato flour, and owned a building in which it carried on business in Saginaw. Robert McKinney was superintendent and owner of an interest in the patent under which it operated, and Michael Keenan was interested as a stockholder. In the year 1896 it contracted for potatoes, and many were delivered and manufactured. Not having money to pay for all contracted, some potatoes belonging to the plaintiff were stored in his name. It was a disputed question whether or not the American Potato Flour Company resumed business; but in the spring of 1897 the business was conducted by some one in the name of the corporation; Mr. Keenan testifying for plaintiff that this name was used by defendants because of the reputation of its product. An arrangement was made to take plaintiff’s potatoes, and they were manufactured and the product sold, and the plaintiff has sued in this action these defendants as the purchasers of his potatoes, and recovered a judgment. McKinney suffered judgment upon default. Defendant Freud has appealed.
The most important question in the case is whether there is any evidence establishing prima facie a partnership. The plaintiff claims, and Keenan testified, that the corporation became insolvent in 1896; that he, Keenan, carried on the business for his sole benefit, under the name of the defendant company, from April 10 to May 20, 1897. Plaintiff asserts that after May 20th Freud and McKinney were copartners, and that he received for 2,264 bushels of potatoes three due-bills, dated, respectively, May 25, $407.75, June 2, $123.25, and July 9, $21. Most of the testimony claimed to show that Freud was a partner consists of conversations with McKinney. McKinney was a defendant, who had permitted his default to be entered. He thereby admitted his liability, and the amount of damages only was to be determined. See 1 Green, Prac. 460. There was therefore no occasion to show the statements of McKinney, and they should have been excluded. As the court told the jury, such statements were not binding upon Freud. Counsel claim that this instruction was equivocal, and contend that it was probably understood to mean that they were not conclusive evidence of partnership against Freud. We think that it would have been better to have given defendant’s fourth request; but the language used should not have been misunderstood, especially as the subject had been mentioned several times during the trial. Many pages of the briefs of counsel have been necessarily devoted to a discussion of the testimony, for the purpose of showing whether or not the question of the existence of a copartnership should have been left to the jury. We cannot elaborate our conclusions, but, after a patient examination of both briefs and record, we are of the opinion that the court could not have done otherwise than submit the question of fact to the jury.
We do not need to discuss the question whether participation in profits alone necessarily makes persons copartners in all cases, as the court did not so charge the jury. It certainly does not. See Dutcher v. Buck, 96 Mich. 160 (55 N. W. 676, 20 L. R. A. 776); Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 616 (65 N. W. 761). The instruction was given that participation in the profits of an enterprise is at least some evidence of a partnership of the parties so participating. Doubtless this instruction was based upon the language used in Dutcher v. Buck, 96 Mich. 163 (55 N. W. 677, 20 L. R. A. 777), where it is said:
“ Much controversy has arisen over the conclusiveness of profit sharing as to the liability to third persons of such profit sharer. The authorities upon that question are not harmonious, even in our own State. All, however, agree that profit sharing is evidence tending to show partnership. It was held in Beecher v. Bush, 45 Mich. 188 (7 N. W. 785, 40 Am. Rep. 465), and in Colwell v. Britton, 59 Mich. 350 (26 N. W. 538), that merely sharing in profits, where third persons have not been legitimately led to believe there was a partnership, does not create one as to them, unless there was one in fact. In hoth of those cases, however, the party sought to be charged as a partner received a percentage of the proceeds as a measure of compensation, — the one as rental, and the other as commission. Both come within the generally recognized exception to the rule laid down by a large number of authorities, that, as to third persons, profit sharing is conclusive as to liability.”
In the present case it was claimed, and there was considerable testimony tending to show, that this profit sharing was in part payment for a loan. The instruction quoted followed the instruction that:
“I submit to you as a question of fact, to be determined from the evidence in this case, whether the defendants, Freud and McKinney, were doing business as co-partners at the time the plaintiff sold and delivered his potatoes; and if you find that they were, and that the potatoes were sold, and as such copartners they purchased plaintiff’s potatoes, then they are jointly liable. If you find it to be a fact, from the preponderance of the evidence in this case, that each of these defendants participated in the profits made from the manufacture and sale of the flour made from the plaintiff’s potatoes, and that they were jointly interested as coprincipals in the purchase of the potatoes, and their manufacture into flour, and sale of the flour, they are jointly liable for the purchase price of these potatoes, even though there were no partnership relations existing between them in reference to this transaction.”
The inference naturally to* be drawn from the instruction that “participation in profits is some evidence,” etc., is that, if there was difficulty in finding that they were jointly interested as “coprincipals,” the fact that they participated in the profits was sufficient evidence of partnership to sustain a verdict in the case. In view of the defense it clearly was not, if the defendants’ testimony was believed.
We think the court was too strict in refusing to permit the defendants to testify what relations existed between them. The witness Keenan was permitted to testify to conclusions in relation to Freud’s interest in the business, although it was not shown that he had any means of information. McKinney certainly knew whether the business was carried on by himself and Freud after May 1st, and whether the corporation was interested in it, but his testimony was rigidly excluded, upon the ground that it involved a conclusion of law. He certainly knew how long the corporation ran the business, and when it ceased, and whether it had an interest in the business in 1897. We think that the defendant Freud was entitled to the benefit of an explicit denial of interest in the potatoes.
Many other questions are raised, which do not call for consideration.
The judgment is reversed, and a new trial ordered.
Moore, Long, and Grant, JJ., concurred. Montgomery, C. J., did not sit. | [
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Moore, J.
The bill in this case is filed for a divorce on the ground of extreme cruelty. The facts as they appeared in the testimony were that the complainant had been mar ried some years to defendant, and that the result of said marriage was a child; that the child died, and, upon the death of the child, the defendant refused longer to live or cohabit with the complainant, and left his home, and went to live with her mother. Complainant was a lake captain, and lived with his wife during winters. The defendant lived with her friends or relatives during summers, while he was absent upon his boat. The ground specified, in the bill — cruelty—is that the defendant refused to cohabit with the complainant, and that for 10 months she has refused to live with him or cohabit with him, stating that she did not care for him and did not love him. The circuit judge was of the opinion that the proofs disclosed a case simply of desertion, which had not continued a sufficient length of time to constitute a ground of divorce, and dismissed the bill. The case is brought here by appeal, complainant contending the case is governed by Whitaker v. Whitaker, 111 Mich. 202 (69 N. W. 1151), and that a decree should have been granted in favor of complainant.
The opinion in Whitaker v. Whitaker is a brief one, and does not undertake to set out the facts disclosed by the record. In that case the defendant, during the entire period of her married life, refused to cohabit with her husband. She insisted upon having all the privileges of her new relation without assuming its duties. No such case is here shown. We think the circuit judge properly dismissed the hill of complaint.
The decree is affirmed.
The other Justices concurred. | [
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Hooker, J.
The complainant is a resident of Belding, in this State, and some of its larger stockholders are interested as stockholders in a concern, presumably a corporation, known as the Spencer Electric Light & Bower Company, which was engaged in the business of commercial lighting in the city. In.the year 1898 the city advertised for bids for street lighting, and the Spencer Electric Light Sc Power Company made a proposition, which it after-wards withdrew, when another offer was accepted, and a conditional contract was made with some citizens to form a corporation, erect a plant, and furnish street lights for a stipulated price. The bill in this cause was filed to enjoin the carrying out of the contract, and was dismissed upon the hearing. The complainant has appealed.
The grounds upon which complainant asks relief are (1) that the council has not authority to make the contract, under the law; (3) that it has not complied with the law; and (3) that there was collusion between the council or its members and the persons with whom they sought to contract, to prevent competitive bidding.
There are two sources from which Belding might derive authority to make its contract — First, its charter; second, Act No. 186, Pub. Acts 1891 (1 Comp. Laws, § 3437 et seq.). Either is sufficient, if authority can be found in it. Act No. 186 is an independent act, and is held to apply to all cities of the prescribed class which were in existence when it was passed, or have been created since. It is contended that it cannot apply to a city whose charter does not provide the manner for letting contracts for public lighting, which it is said the charter of Belding does not. This seems to us a forced construction; a more reasonable one being that it applies to all cities, but requires conformity to charter requirements when they exist. The letting of a contract for a period of 10 years is not so complicated a transaction as to require specific provisions for so doing. In the absence of charter provisions, the council may make a contract with any one whom it chooses.
It is also contended that this act is unconstitutional, because, by providing that cities may do commercial lighting when they erect municipal plants, it is made broader than the title. We think that commercial lighting may be essential to make a municipal plant self-sustaining, and that a provision for it might, perhaps, be within a reasonable construction of such a title. But we find it unnecessary to decide this question, for the reason that such provision might be eliminated, and leave a valid act. It has no importance, therefore, in this case, because the city has not attempted to build a plant. We are of the opinion that it is not affected by Act No. 115 of the same session, which was passed earlier, though it took effect later. Counsel cite no authority for the claim that an act given immediate effect is repealed by one passed earlier, but not given immediate effect. We doubt if such authority can be found.
It is claimed that Act No. 186 cannot apply to Belding, which has a special charter, passed two years after the enactment of Act No. 186. See Act No. 313, Local Acts 1893. We see no difference in this respect between a city specially chartered and one organized under the provisions of the general statute. As said of the waterworks statute, to which this is analogous, in the case of Menominee Water Co. v. City of Menominee, 124 Mich. 395 ( 83 N. W. 130), the act “is a substantive and independent enactment. The city having availed itself of its provisions, the act stands a part of its charter, as a separate chapter dealing with the specific subject. * * * When so read, the case comes directly within the principles laid down in Monroe Water Co. v. Heath, 115 Mich. 277 (73 N. W. 234).” We think these cases conclusive of the question of power under the act, if the steps taken entitled the council to act under it. It is complainant’s claim that, before it could do so, it was necessary to submit' the question whether or not the electors would avail themselves of the provisions of the act, and that this could only be done upon a petition of 100 freeholders, and a resolution which gave the electors the opportunity to determine whether they would have a contract or a municipal plant. Section 2 of Act No. 186 should be reasonably construed. It adopts Act No. 5 of the Session Laws of 1870; but as that act nowhere alludes to contracts, and was designed only to provide for the erection of municipal plants, it should not and cannot be held to prescribe a method for contracting. Moreover, said section 2 provides that the council shall havo power to take action under Act No. 186 whenever it shall by resolution declare it to be expedient to acquire or construct, or whenever it shall deem it expedient to contract. This it may do by virtue of section 1, which makes it lawful for any city to construct or purchase or contract at such times and on such terms as the common council shall direct. But section 2 puts some limitations on this power, and an important one is that, if the council contracts, it must be in a method that conforms to its charter, and for not less than three nor more than ten years. Having thus provided for contracts, a restriction is placed upon the power to purchase or construct a plant, by providing that the council shall, after having by resolution declared the expediency, submit the question of purchase or construction to a vote of the electors. What was the object of section 3 ? Obviously, to impose a duty upon the council where the others gave power, and to compel action whenever 100 freeholders should petition for it. This act does not require a resolution of expediency, nor is a vote of the people necessary, before a contract may be made. The council may lawfully make a contract whenever it deems it expedient, and the making of the contract would be a sufficient declaration of expediency.
It is unnecessary to discuss the questions based alone on the authority of the charter itself, including limitations on, the power to contract liabilities. So far as applicable to the case, those questions are covered by our previous rulings in cases cited in- the briefs of counsel. Counsel attempt to distinguish this case from those of Monroe Water Co. v. Heath, 115 Mich. 277 (73 N. W. 234), and Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480 (78 N. W. 558), upon the ground that in those cases the charter only prohibited excessive indebtedness, whereas in this the word “liability” is used. An examination of section 14, chap. 29, Act No, 313, Local Acts 1893, will show a limitation on the prohibition. It is confined to the fiscal year, and is as follows;
“After the passage of the annual appropriation bill, no further sums shall be used, raised, or appropriated, nor shall any further liability be incurred for any purpose, to be paid from the general fund or street-district fund, during the fiscal year for which the appropriation was made, unless the proposition to make the appropriation shall be sanctioned by a majority vote of the electors voting upon the proposition at the next annual city election, or at a special election to be called therefor by the council.”
We are of the opinion that this provision does not forbid a contract for lighting under Act No. 186. Menominee Water Co. v. City of Menominee, supra. If it is true, as claimed, that the fiscal year ends in May, and that the council had appropriated all of its funds for that year, and could not appropriate more after making the annual appropriation, the council might not be authorized to pay bills for lighting incurred before May 1, 1899, which was probably as early as a plant could have been put in operation. However that may be, it would be a matter between the contracting parties. If no payment was made before that time, the owners of the plant only would be injured, and they are not here complaining.
The council might lawfully contract with private persons who should agree to furnish the light through a corporation to be thereafter organized. We need not concern ourselves with the questions that might arise between the city and corporation. Its contract was with the promoters, if counsel choose to call them such. It knew no other party, and need not unless it should choose to do so, unless the proposed corporation should ratify the action of its promoters, and bind itself as contemplated by the contract.
We discover nothing in Act No. 186 which requires a competitive bid. Substantially, however, there was one, if the complainant’s proposition was a bid; for the bid accepted was, as we understand it, a lower one than complainant’s,1 and competition was only prevented by its withdrawal.
Tho remaining question relates to the question of fraud and collusion between the council and the successful bidders. We are unable to find any evidence of a corrupt bargain, and agree with the learned circuit judge, who saw the witnesses, that the contract should not be held void upon that ground.
The decree is affirmed, with costs.
The other Justices concurred.
J. e., the Spencer Electric Light & Power Company’s. | [
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] |
Grant, J.
(after stating the facts). The appellant moved for a new trial on the ground that the verdict was contrary to the evidence. The court refused to grant it, and appellant duly excepted. While it is unpleasant to an appellate court to review the action of the court below in refusing to grant a new trial for the reason alleged, yet the statute imposes the responsibility, which we cannot evade. The plaintiff’s case is based upon his own testimony alone. No one saw him fall. He made no complaint for over two years, but waited until the station agent had removed from the State; until, in the due course of business, the ticket sold had been destroyed; and then commenced action without having made any claim to the railroad company to give it an opportunity to-examine into the case, or settle if it chose. He was an intemperate man, and was at the time of the trial under bonds to keep the peace. The manner of the accident, as described by him, is improbable. The train had stopped, according to his own testimony. He stood upon the lower step, ready to alight. The train consisted of five cars, two of which were sleepers, — a heavy train. The train was equipped with Gould couplers. Five experienced men testified that it would be impossible to start that train with a jerk sufficient to throw a passenger standing upon the lower step and in the act of alighting. His own version of the accident is as follows:
“When the train stopped, he says, ‘God d — n it, get off from here !’ The train stopped right in front of the depot. When he made that remark, I went to get off. He • shook his lantern this way [indicating] for the engineer to go ahead.
“ Q. What happened then ?
“A. I fell off. I got off in some way. I fell, anyway. I suppose it was the jerk from the engine when he pulled ahead that made me fall. ' It was a sudden jerk. I was on the bottom step of the car, holding on to this handle on this side of the car. I had some glasses in my other hand. I couldn’t tell how I did fall. When I got. off I was headed towards Port Huron. When I got up I was looking towards Detroit. I must have turned a somerset.”
Plaintiff swears positively that one Donohue was conductor, and one Duval the brakeman, of the train. He knew Donohue well, and had known Duval from his boyhood. There was no chance for him to be mistaken. He swore that these were the conductor and brakeman of the train, and that both were present when he was thrown. It is conclusively demonstrated by the records of the company that these two men were not upon that train that night. They were part of another train crew upon an earlier train to Detroit that day. The crew of the train upon which plaintiff claims he was, and by which he was injured, were one Chandler, conductor; Cooper, brakeman; Kelly, baggageman; and Fuller, engineer. These were present in court before plaintiff took the stand as a witness. He knew them, and saw them in the courtroom. Donohue and Duval were not there. After plaintiff had testified so explicitly and positively that these two were the ones in charge of the train, the defendant was able to produce them before the trial ended, and they testified that they were not upon the train, and that no such -occurrence ever happened while they were in charge of any train. The four men comprising the train crew on the night plaintiff claims to have been injured were all produced and sworn, and all testified that no such occurrence ever took place. We then have this plaintiff contradicted by six men, and by the unimpeached record made at the time. It is not too harsh to say that such verdict is based upon something else than the reliable testimony in the case, and it was the duty of the court to promptly set it aside, and grant a new trial.
In Schmeltzer v. Railway Co., 80 Minn. 50 (82 N. W. 1092), plaintiff claimed to have been thrown by the sudden starting of the car while he was entering and was upon the steps. The testimony of the plaintiff and his witnesses as to the manner of the fall and the starting of the car was stronger than in this case. The supreme court reversed the verdict, and granted a new trial, because the testimony was so indefinite and uncertain; and in doing so said:
“We share the respect of' the learned trial judge for the jury system, and our respect therefor is only shaken or lessened when confronted with palpably unjust verdicts, —verdicts which find no support in the evidence, and can only be accounted for on the theory of bias and prejudice.”'
See, also, Brown v. Paper Co., 65 N. J. Law, 111 (46 Atl. 756).
In view of a new trial, it is important to determine one other question: What relation did plaintiff bear to the defendant while on its train ? He contends, and bases his-declaration upon the theory, that he was a passenger, entitled to all the rights and privileges of a bona fide passenger, and that defendant is liable in damages to him for any injury caused by its negligence. The defendant contends that plaintiff was a trespasser, that he had no right to enter this train for carriage to New Haven, and that the defendant would only be liable to him for gross or willful negligence.
If the defendant’s train had been scheduled never to stop-at New Haven, — the plaintiff’s home station, — there would be great force in the contention of the defendant, and many authorities fully sustain it'. But it is conceded, that the defendant’s train did stop sometimes at New Haven, and always stopped when it had passengers from Detroit to that point. We think a passenger knowing this-fact would have a right to enter the train hoping that it might stop there, and that such passenger could not b& placed in the position of a trespasser until the conductor had notified him that the train would not stop there, and that he must stop at some other station before reaching New Haven, or go to the next station beyond. If he had failed to comply with any such requirement on the part of the conductor, he might then be put in the position of a trespasser.
Judgment reversed, and new trial ordered.
Hooker, Moore, and Long, JJ., concurred. Montgomery, C. J., did not sit. . | [
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Grant, J.
{after stating the facts). The contract, being silent as to time, provided for a reasonable time for performance on the part of the plaintiff. It was therefore incompetent for defendant to show that any specific time was agreed upon. This would be in violation of the terms of the contract. Stange v. Wilson, 17 Mich. 342. The ruling of the court in this regard was correct.
The court instructed the jury, in substance, that, by the terms of the contract, the title to the timber had passed from the defendant to the plaintiff, and that, if plaintiff had failed to remove it within a reasonable time, he could not recover; but, if he had not had reasonable time in which to remove it, he was entitled to recover. We think the court correct in holding that the title to the timber had passed. See Whitcomb v. Whitney, 24 Mich. 486. Upon the execution of the contract, all the delivery which was possible was made. The plaintiff entered upon the land, and took all the possession possi ble to take. The defendant had nothing more to do. The price was fixed, and the amount was to be determined by the scale bills made when plaintiff had sold the property. The entire dominion and control over the subject-matter of the contract was, by its terms, lodged in the plaintiff. Whether the title revested in the defendant upon the failure of the plaintiff to remove the timber within the reasonable time provided by the contract is not before us, and is not argued by counsel. The instruction that, if plaintiff had failed to remove it within a reasonable time, he could not recover, and the converse of the proposition, were as favorable instructions as the defendant was entitled to.
Judgment affirmed.
The other Justices concurred. | [
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] |
Long, J;
This bill is filed to compel defendant Pungs to convey to complainant the full quantity of land which it is claimed was purchased from him by the Michigan Railway-Supply Company, the predecessor of the complainant corporation. The bill sets out, substantially, that prior to September 23, 1891, the said defendant William A. Pungs and Cyrenius A. Newcomb were owners in common of property now known as lot 21, Pungs & New- comb’s subdivision of part of outlots 7 and 8, quarter section 58,10,000-acre tract, according to the plat of said subdivision recorded August 21, 1895, in the office of the register of deeds for the county of Wayne, said lot being approximately one acre in extent; that on said 23d day of September the said defendants, William A. Pungs and Addie L. Pungs, his wife, and Cyrenius A. Newcomb, for the consideration of $3,500, conveyed to the Michigan Railway-Supply Company, a corporation organized and existing under the laws of the State of Michigan, property described as follows:
“Land in the city of Detroit, Wayne county, Michigan, described as all that part of lot 7 lying north of the Detroit & Bay City Railroad of the subdivision of section 58 of the 10,000-acre tract, commencing at the intersection of the northerly line of the Detroit & Bay City Railway right of way and the westerly line of said lot 7, and running thence northerly, on said west line of lot 7, 375 feet; thence easterly, at right angles to said westerly line, 100 feet; thence southerly, parallel to said west line, to the north line of said Detroit & Bay City Railway; and thence westerly, along the said line of said railway, to the place of beginning; the parcel hereby conveyed containing about one acre of land.”
That in and by said conveyance all parties thereto supposed and intended that said conveyance should include all of what is now known as said lot 21; that, immediately upon the execution and delivery of said conveyance, the said Michigan Railway-Supply Company took possession of the whole of the property included in said lot, and thereafter treated it as its property; that afterwards, and on the 26th day of December, 1895, the said Michigan Railway-Supply Company, acting through said Newcomb as its president, and said William A. Pungs as its treasurer, conveyed a right of way along the easterly part of said lot 21 to the Anderson Manufacturing Company, a corporation owning the property adjoining said lot 21 to the north, and which corporation has since conveyed its said right in said lot 21 to the complainant.
That on March 2, 189?, the complainant, whose name was at that time the Pungs-Anderson Manufacturing Company, purchased all the property of said Michigan Railway-Supply Company, and, among others, the property known as lot 21; that it was represented to the complainant by said defendant William A. Pungs, who conducted all the transactions and was the principal managing officer of both corporations, that the said Michigan Railway-Supply Company was in fact the owner of all of said lot 21; that in estimating the value of the assets of said Michigan Railway-Supply Company, purchased by complainant, the whole of said lot 21 was included, in accordance with the representations and at the instance of said ■defendant William A. Pungs, and said assets were paid for on that basis; that, after said purchase was completed, the complainant took possession of all of said lot 21, — the same being in the occupation of said Michigan Railway-Supply Company, — and constructed a fence around the same, and used it for the purposes of its business, and has ever since continued to do so; that said Pungs participated in, and had general charge of, said purchase, and directed the transfer of said land and the occupation of it by complainant.
That afterwards the said Pungs severed his connection with the complainant, and his stock in complainant corporation was purchased by other parties interested in the same; that during the month of May, 1899, the complainant filed an amendment to its articles of association, in pursuance of and in compliance with the provisions of law, changing its name to the Anderson Carriage Company, by which name the complainant is now known in law; that, in the course of this change in its business affairs, it became necessary to examine the conveyances of the property held by complainant, all of which had been theretofore managed by defendant William A. Pungs, and upon such examination it was discovered for the first time that the whole of said lot 21 had not been properly conveyed by said William A. Pungs and said Newcomb to said Michigan Railway-Supply Company, but that only the westerly 100 feet in width of said lot had been conveyed, leaving unconveyed the easterly portion of said lot, about ii feet in width; that, upon discovering the said error, complainant applied to said William A. Pungs and said Newcomb to correct the description so as to make the samo conform to tho transfer actually made; that said Newcomb at once complied with this request, and conveyed by deed all his right, title, and interest in and to the unconveyed portion of said lot 31 to complainant; that said defendant William A. Pungs, notwithstanding tho premises, and in fraud of complainant’s rights, has refused, and still refuses, to correct said error, and now claims to own all that portion of said lot 31 which was omitted from said conveyance, and has caused a building to be put up on adjoining land owned by him which projects over upon said unconveyed portion of said lot 31, and has leased the same to a tenant, and is attempting to withhold from complainant the ownership and possession of said land.
Complainant avers that it was at all times intended that the entire property now known as said lot 31 should be conveyed to said Michigan Railway-Supply Company, from whom complainant derives title; that a full consideration was paid for the entire lot, and that both said William A. Pungs and said Newcomb have alwayg acted upon the supposition that such conveyance had been made; that said defendant William A. Pungs was at all times, up to and until after the purchase of said property by complainant, in the control and management of said Michigan Railway-Supply Company and of complainant, and was intrusted by all persons interested in said corporations with full management and control; that by his repeated representations and his acts in actually causing said property to' be occupied and used by said Michigan Railway-Supply Company, and by complainant after it purchased tho same, and further by causing the aforesaid right-of-way deed to be executed by the Michigan Railway-Supply Company, and himself signing the same as treasurer, and in numerous other ways, the said defendant William A. Pungs has recognized the actual ownership of this unconveyed portion of said lot 21 to have been in said Michigan Railway-Supply Company, and the complainant, as its assign, and in equity is bound to make the legal title thereto good, and that his refusal to do so is a fraud upon the complainant.
Defendant Pungs filed an answer in the nature of a cross-bill, setting up that prior to the 4th day of September, 1895, defendant and Cyrenius A. Newcomb were owners in common of lots “A” and 1 to 20, both inclusive, and lots 22 and 23, and lot 21, except that part thereof conveyed by defendant and his wife and Cyrenius A. Newcomb to said Michigan Railway-Supply Company September 23, 1891; that on the 4th day of September, 1895, Cyrenius A. Newcomb, in consideration of $ 100 and other valuable considerations, by quitclaim deed conveyed to defendant all of the above-described property, except that part of lot 21 then owned by said Newcomb and defendant; that, immediately after the execution and delivery of such deed, he, the said defendant, took possession of that portion of said lot 21 which had not been conveyed to the said Michigan Railway-Supply Company, and thereafter regarded and treated the same as his property ; that defendant was not informed, and did not know until after the filing of the bill, that the deed from New-comb to himself of the other property of Pungs and New-comb did not include that portion of said lot 21; and he avers that the said part of.lot 21, which was not included in said Newcomb’s deed to himself, was omitted from said deed unintentionally, by the mutual mistake of Newcomb and himself. He therefore prays in his cross-bill that he may be decreed to be the owner of all that part of said lot 21 which was not included in the deed of September 23d. He further prays that said Newcomb and his wife, who are made parties defendant to the cross-bill, may be decreed to convey to him all that part of said lot 21.
The testimony in the case was taken in open court, and tho court decreed that defendants, Pungs and wife, convey to complainant all that part of lot 21 not contained in. the deed of September 23d; that, in default of the execution and delivery of the deed by said defendants, a copy of the decree be recorded in the office of the register of deeds in lieu thereof, and have all the force and effect of said deed; and that complainant recover its costs.
There is little dispute about the facts, except as to the intent of the parties to the original deed. The court below was of the opinion, evidently, that the parties intended to sell to the Michigan Railway-Supply Company one acre of land, as stated in the deed; and it is shown conclusively that one acre of land would include all the land in said’lot 21. Mr. Newcomb testified that he was joint owner with, defendant Pungs, and that:
“We agreed to sell the new corporation one acre of land, and the price was fixed at $3,500.”
He was asked:
“Q. At the time you signed that deed, did you make any particular examination as to whether the description by metes and bounds carried with it the entire acre of land ?
“A. I did not. I referred the matter entirely to Mr. Pungs. He was the manager.”.
Mr. Pungs was asked:
“Q. You heard Mr. Newcomb’s testimony. Do you recollect any conversation with him with reference to buying an acre ?
“A. No, sir.
“Q. What conversation do you recollect that you had with him about buying an acre, or about the amount of land that was to be deeded ?
“A. When I had the conversation, — the only conversation that I recollect, — the records show that is what land we needed. We bought just what we needed, and no more. We needed just that piece, and no more. We had a building 300 by 75 feet, and that is five times the size of the building that they had before that. It was ample for our use in every respect.”
On his cross-examination defendant was asked:
“ Q. Isn’t it true in the conversation that you had with Newcomb, and the others at the time interested in the company, that your talk was that you would sell them one acre ?
“A. No, sir; if there had been, we would never have said so many feet. * * *
‘ ‘ Q. There was no such talk about an acre at all ?
“A. I do not think so. We might have said that it was about an acre, and gave them the dimensions.”
He was then examined upon the statement in the deed that the property contained about one acre. He was asked:
“ Q. What do you mean by the statement in the deed that the parcel hereby conveyed contained about one acre of land ?
“A. I did not put it in. I asked Mr. Post [the attorney], and he said it was customary when it was anywhere near an acre.”
It appears to us that the facts of this case all teüd to show that the whole of lot 21 was intended to be conveyed by the deed of September 23d. The testimony shows that, after this purchase by the Michigan Railway-Supply Company, it paid the taxes on the entire acre of land, and that Pungs and Newcomb, who owned at that time the balance of the tract, paid the taxes on the rest of the property, Pungs being at the time treasurer of the Michigan Railway-Supply Company, and paying the taxes on the lot out of the company’s money; that, at the time of the consolidation of the companies, defendant was general manager; and that, within 30 days thereafter, a .fence was built along the easterly line of lot 21, inclosing the entire property, and the whole lot continued to be used without any claim of ownership by defendant. A shed along the easterly line of lot 20 was extended onto lot 21 under his direction, and other structures were built on the property. It is admitted by both Pungs and Newcomb that, when Pungs purchased all of Newcomb’s remaining interest in the property, the intention was to buy all of that interest, aside from what had been transferred to the Michigan Railway-Supply Company; and yet in the deed from Newcomb to Pungs this part of lot 21 was not included. Defendant testified that he raised the money for the original purchase by mortgaging all of the property, except that which was sold to the Michigan Railway-Supply Company. The first two mortgages covered all of the property, except that described as conveyed to the Michigan Railway-Supply Company. The two subsequent mortgages described the property as lots 18, 19, 22, and 23, omitting the property sold to the Anderson Manufacturing Company and lot 21. Mr. Anderson, of the Anderson Carriage Company, testified that, when his company was organized, lot 21 was occupied by the Michigan Railway-Supply Company; defendant being at that time connected with that company, and also with the Anderson Manufacturing Company. Mr. Anderson stated that defendant told him that the Anderson Company had lot 20, and that the Michigan Railway-Supply Company owned lot 21; that they were of the same size, each consisting of an acre of land. Mr. Newcomb testified that it was agreed to sell the corporation an acre of land, and the deed recites that the parcel conveyed contained about one acre of land. We are satisfied from the whole record that the court below very properly decreed that Mr. Pungs convey to complainant the balance of lot 21 not conveyed in the deed of September 23d.
The decree below will be affirmed, with costs.
Hooker, Moore, and Grant, JJ., concurred. Montgomery, C. J., did not sit. | [
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] |
Montgomery, C. J.
This action is brought by Daniel Dolson, Sr., as administrator of the estate of his deceased son, Daniel Dolson, Jr., whose death occurred on the 8d day of October, A. D. 1898, under the following circumstances: Deceased and his half brother, James Davis, were engaged in unloading crushed stone from gondola cars standing on defendant’s team track in the yards in the citj’- of Jackson. The stone was owned by one Robert Lake, a business man of Jackson, and was being unloaded into wagons for him by Davis and deceased. There were three cars of this stone standing upon the track at the north end of the yard, at the usual place of unloading into wagons. Standing on the track next north of the stone cars was a box car loaded with granite, and north of that a short distance, on the same track, was a car loaded with hoops. At the time of the accident, Davis and Dolson had unloaded the north car of stone, and about one-half of the middle car, beginning at the south end. These gondola cars are about 30 feet long, with boxes 3 feet high.
About 11 o’clock a. m., yard brakeman French backed down from the south on the team track with an engine and four cars, and told Davis and Dolson that he wanted to take out the car loaded with granite that was on the track beyond them, and that he was going to pull out the stone cars, and for them to pull in their screen. French then coupled to the stone cars, and went south, pulling out the whole string, including the empty stone car and the car of granite. As was their custom, Dolson and Davis remained in the half-unloaded car. Dolson stood on the east side of the car, about six feet from the south end, leaning against the side of the car. Davis stood near the south end of the car, on the west side. This was about the position of the men at the time of the accident, a few minutes later. French took the whole train south and through the switch. The switch was then turned, and the train backed north on the main track. The car of granite and the empty stone car were cut off, and left on the main track, and the train again went south through the switch, which was again turned, and set for the team track. The train then backed north through the switch onto the team track, the train then consisting of the two stone cars in the rear, then four cars and the engine.
After passing out onto the team track, the train being in motion, French cut off the two stone cars, and let them pass on to the north, at the same time saying to Davis to stop the cars where he wanted them. These two cars slowed up or stopped near the cattle-chute. The testimony is in conflict as to whether the cars did or did not come to a full stop. French, seeing that the two cars of stone were not going to run down the track far enough, signaled the engineer to kick them farther back. . The engineer then went back with the engine and the four cars, and overtook the two cars of stone at or near the cattle-chute. Whether the stone cars had then come to a full stop or were still in motion is uncertain. The fact is, however, that the cars came together when the south end of the half-unloaded car was just opposite the cattle-chute. It is claimed on the part of plaintiff that the stone' cars had come to a full stop,- and that the engine and the four cars struck the south stone car with such great and unnecessary force that Dolson, who was standing back about six feet from the south end of the car, leaning up against and having hold of the side of the car with both hands, bracing himself, was thrown over the south end of the car between the two stone cars, and was run over by the south stone car. He was run over by the trucks under the north end of the south stone car, and, to all appearances, drew himself from under the car before the south trucks reached him. His injuries were such as to leave no hope of his surviving them, and he died about midnight of the same day, being a part of the time conscious.
The declaration contained two counts; the one under the survival act, so called, and the other under the death act. A recovery was had under each count, in the sums of $1,200 and $800, respectively. The two principal questions argued are: First, whether plaintiff can recover at all; and, second, whether, if entitled to recover, he is entitled to maintain an action under both the survival statute and the death act, and, if not, under which one he is entitled to recover.
The instruction of the circuit judge upon the first question was as follows: sonably necessary for that purpose, and to have taken the chances of any accident which might result from the use of that amount of speed and force. The use of such speed and force as were reasonably necessary, under the circumstances, to switch the cars, was-- lawful, and the defendant was not negligent in using it. And if the defendant ran its engine and connecting cars against the stone cars with unnecessary speed and force, the employment of such unnecessary speed and force was a negligent act, and constituted negligence, as charged in the first and third counts of plaintiff’s declaration. The question, then, upon this branch of the case, for you to determine,, is, Did the defendant use unnecessary force and speed, under the circumstances, in running its engine and connecting cars against the stone cars, upon one of which the deceased was standing at the time of the accident ? This is a material proposition in the case, and I submit it to-you as a question of fact, to be determined from the evidence bearing upon that subject.”
“The term ‘negligence,’ as used in this case, means a failure by the defendant to perform some legal duty it owed to the deceased at the time of the accident. It was the defendant’s duty, when it determined to move the car on which the deceased was working, and switch it back to the place where it originally stood, if the defendant’s agents who had charge of and performed that work knew that the deceased was standing on the car during the operation, to do the switching with such care and prurience as a reasonably careful and prudent man would exercise under the circumstances, and to run against the ■cars, on one of which the deceased was standing, with only such speed and force as was reasonably necessary for that purpose under the circumstances. It must be assumed that it was necessary to use some speed and force, or the result could not be accomplished. The defendant had the right to run against the stone cars with sufficient speed and force to move them into their proper positions. In doing so the defendant was performing an act necessary to be performed in the usual course of its business; and the deceased boy, when he chose to remain ■on the car during the operation, is chargeable with knowledge that the defendant would and must use such speed and force in running and switching the cars as was rea-
We think that, as applied to the facts of this case, this instruction was correct. Chadderdon v. Railroad Co., 100 Mich. 293 (58 N. W. 998); Illinois Central R. Co. v. Anderson, 184 Ill. 294 (56 N. E. 331).
Upon the question whethdr plaintiff is entitled to recover under both the death act and the survival act, my views have undergone no change since writing the opinion in Sweetland v. Railway Co., 117 Mich. 350 (75 N. W. 1074, 43 L. R. A. 576). On the contrary, my views have been fortified by a re-examination of the cases. Since that case was decided, the supreme court of Wisconsin, in an able opinion, written by Mr. Justice Marshall, and concurred in by the entire court, has held that, under statutes similar to ours, the two remedies are given. Brown v. Railway Co., 102 Wis. 137 (77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579). In addition to the case of Hurst v. Detroit City Railway, 84 Mich. 539 (48 N. W. 44), cited in the Sweetland Case, our attention has been directed to the case of Hyatt v. Adams, 16 Mich. 180, the reasoning of which, in my judgment, supports the contention of plaintiff. The able opinion of Mr. Justice Christiancy can not well be epitomized without detracting from the force of that able justice’s convincing reasoning, but deserves a careful reading.
It is suggested that the Sweet-land Case decides that two remedies do not exist, and that all that now remains for decision is which remedy is open. I do not so read the Sweetland Case. In that case an action was brought with a count under the survival act and a count under the death act. On the trial the defendant had a verdict under the count on the death act. The plaintiff recovered under the survival act, and defendant alone appealed. The judgment was reversed. The holding, therefore, was that no recovery could be had under the survival act, under the facts of that case. Justices Grant and Moore were of the opinion that the testimony showed that the death was instantaneous, and that for this reason no recovery under the survival act could be had. Justice Long held that, in any case where death results, no recovery could be had under the survival act. In this view Justice Grant concurred, but neither of the other justices assented to this view. Justice Hooker expressed the view that, in any case where the death was not instantaneous, the survival act fixed the'remedy, and no remedy was given by the death act. In this view none of the other justices concurred. The writer of this opinion expressed the view that both remedies existed, and that the enactment of Lord Campbell’s act by our legislature was not intended as a repeal of the survival act. It will be seen that the abstract question whether two remedies were given was not before the court for determination.
The question is not different than it would be. if two separate cases were here. In such an event, the question whether a remedy existed under the statute invoked would be presented for decision. If a majority of the court were of the opinion that such a remedy was intended, would it not be applied ? There can be but one answer to the question. True it is that, in determining this question, it would be proper to take into account the question whether another remedy was given by another statute, which was intended to exclude the one invoked; and, in deciding this question, any presumption, more or less strong, that the legislature did not intend two remedies, would be proper to be considered. But this would, of necessity, be but a means to an end, or a process of reasoning, the ultimate question being whether the plaintiff, in the particular case in hand, was entitled to the remedy sought. Under no. procedure known to the law can the abstract question of whether two remedies oxist be presented. If in fact two remedies do not exist, the result must be reached by the process of. subtraction,• — i. e., if a majority of the court decide for the exclusion of either remedy, that remedy is to be counted out; but if, on the other hand, a majority declare for the remedy, that remedy exists; if this be true as to both remedies, both exist.
I do not understand that any one contends that it is incompetent for the legislature to give remedies to two parties for the same wrongful act of another. There is no declaration in either of the statutes that two remedies shall not exist. The question which must be presented whenever either remedy is sought is whether a statute which in its terms gives such remedy is rendered inoperative by the provisions of the other statute. The survival act was first passed. What logic is there in the position of one who asserts that the death act did not repeal the survival act, but that the survival act alone applies to a particular case, and who, notwithstanding this view, holds the exact reverse, i. e., that the death act did repeal the survival act, and that the death act alone applies to the case ? It is impossible for me to find that this court has decided that two remedies do not exist, or that it should.so decide until a majority of the court say that one or the other of the remedies sought is excluded by the other. This has not yet been done.
I understand, however, that a majority of the court are of the opinion that it should be held that, in a case where the death is not instantaneous, there can be no recovery under the death act, so called; 3 Comp. Laws, § 10427. A suggestion is contained in the opinion of Mr. Justice Hooker in this case that the language of the section in question that, “whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action,” etc., is to be construed as excluding a recovery in all cases where a cause of action at any time vested in the injured party. I do not so read the statute, but construe it, as indicated in my opinion in the Sweetland Case, to mean that where, at the time of the death of the injured party, no cause of action existed or remained, the remedy under this act would be excluded. ■ As was said in that case, if the injured party had recovered damages or settled for the injury, he would not, at the time of his death, have been entitled to maintain the action “if death had not ensued.” See, upon this subject, Littlewood v. Mayor, etc., of New York, 89 N. Y. 24 (42 Am. Rep. 371); Legg v. Britton, 64 Vt. 652 (24 Atl. 1016). Clearly, the language of the act, limiting the recovery to cases in which the injured party would have been entitled to maintain an action, should be construed to define the character of the injuries and the circumstances under which they were inflicted, and the words “if death had not ensued” have relation to the time when the action, under section 10427, is planted.
Referring to the construction which is placed upon this •statute in the opinion of Mr. Justice Hooker, it is stated in his opinion in the Sweetland Case that it is possible that this construction is foreclosed by decisions heretofore made by this court. I think I have pointed out in my opinion, both in this case and in the Sweetland Case, that such construction was so foreclosed; and, if it was foreclosed in 1898, it is foreclosed in 1901.
I think the judgment should be affirmed.
Hooker, J.
In the case of Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568), a majority of the court expressed the opinion that the law does not permit recovery by an administrator under both of the statutes which are there called, respectively, the “death” and “survival” acts. While we entertained different views upon these statutes, the result was that the judgment was reversed. The question is now before us again in a case where recovery has been had upon both statutes.
It has always been the policy of the common law not to permit recovery for causing death, nor to permit the survival of actions for personal injuries. While Michigan was still a territory, the rule as to the survival of actions for personal injuries was abrogated by the passage of the survival act, which covered assault and batteries. Under it one receiving a mortal wound had a cause of action which would survive. As yet no action was given for causing instantaneous death, though death following as a consequence was practically covered in assault and battery cases by the survival act, as stated. In 1848 the death act was passed, and it gave to the administrator a right to recover for the benefit of the widow and next of kin in certain cases. This was not an absolute right to the widow and child to recover, each for herself or himself, the damages actually suffered, which would have been a simple provision to make. It was hedged about by limitations. Apparently the legislature was not yet prepared to permit an administrator to recover for the death of the intestate such sum as could be wrung from a jury. It was only when it could be shown that the widow and next of kin had suffered pecuniary injury. Again, they were not permitted to bring several suits; all must be recovered through the administrator. This implies, to my mind, that it was intended that all damages should be recoverable in one action. As the law then stood, that was the only recovery that could be had, after death, where the death was caused by negligence, because the right of action for such did not survive. But, under the plaintiff’s theory, a double recovery might be had when death resulted from assault and battery. Aside from the improbability that the legislature would intentionally give the double remedy in one class of cases and not in the other, or that it repealed the survival act as to assault and batteries by implication, we find the language of the act limiting the right of action to a certain class of cases, viz., cases where the act, neglect, or default would, if death had not ensued, have entitled the injured party to maintain an action. We find, then, that, where death prevented an action from accruing to the deceased, this act gave a remedy, and in no other case; in other words, where the action was not prevented from accruing, it did not give a remedy. This section plainly proceeds upon the theory that death has prevented a right of action from vesting. Such would not be the case where a person lived after the injury, and it would be the case where the death was instantaneous. If this was not the legislative intent, why was this language inserted in the statute ?
It seems clear to me that this act was designed to cover cases of instantaneous death, where there was no other remedy, and that it was not designed to give a double remedy in cases where assault and battery caused death, in which cases the survival act already furnished a complete remedy, giving to the next of kin all of the redress which the deceased would have been entitled to, and not making it dependent upon or limited to an amount of actual- contribution to his or her support. It may be said that this view left no redress to -the widow and next of kin for negligent homicides not instantaneous, because such did not survive under section 10117, 3 Comp. Laws, as originally passed, and would not be covered by this construction of section 10427. This is true, but it does not justify our disregarding a plain condition upon which the right of action was made to rest, viz., that the death prevent a right of action accruing to the deceased. Subsequently this omission was supplied by the insertion in the survival act of the words “for negligent injuries to the person.” So, as the law now stands, the right of action is readily determinable. If the death be not instantaneous, the administrator recovers under the survival act the full measure of damages for the benefit of the next of kin. If it be instantaneous, he recovers under the death act, for the same persons, a limited amount of damages, viz., for such pecuniary injury only as they can be shown to have suffered.
There has never been a time when the common law has. deemed it wise public policy to permit speculation out of homicides, and the States have been conservative in permitting recovery for the death of a person. In New York a limit is placed upon the amount recoverable under the death act. I feel convinced that in our own State the policy has been to carefully limit recovery to actual pecuniary injury, and to one action, and not to permit it in those cases where the survival act is available. The sections of the statute are quoted in the opinion of the writer in the Sweevland Casé. To my mind this is the only con- ' sistent view to be taken of these statutes. It furnishes a. plain and reasonable rule, and, where there is doubt which act is applicable,, a joinder of counts will afford ample protection. It is supported by the decisions of Maine and New Hampshire, as shown in the opinion in the Sweet-land Case. There are many considerations mentioned in that opinion which are not repeated here, which are cogent reasons for this view, an important one being the effect on pending cases, which the survival act certainly wás intended to save, but which fall by the death under another construction, leaving a recovery under the death act a. doubtful contingency. ,
The judgment should be reversed as to the count upon the death act, and no new trial ordered, and affirmed to. the extent of the recovery upon the count based on the survival act. We feel justified in denying costs to either party. | [
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] |
Grant, J.
This case is before us for the second time.
See 117 Mich. 652 (76 N. W. 102), for a sufficient statement of the case. It has been tried again, resulting in another verdict for the plaintiff. We held that, under the evidence appearing upon that trial, the court should have directed a verdict for the defendant. The situation and the facts elicited are substantially the same now as then. Plaintiff is the only witness who has made any substantial change in her testimony.
Was the defendant negligent? The negligence relied on is the failure to give the crossing signals. We said upon the former trial that there was no conflict in the evidence upon this point. Defendant introduced two new witnesses who swore positively that they heard the crossing signals given, and very quickly thereafter heard the alarm whistle given. The sole testimony relied on to sustain the verdict of the jury is that of the plaintiff and the boy Ukle. The boy’s testimony is the same as before. Upon this trial he testified:
“The first thing that attracted my attention was the alarm whistle, and I had not been paying any attention to the train until I heard that.
“ Q. You do not know whether the crossing signals were given or not ?
“A. No, sir. I know where the whistling post is, about halfway to our house.
■ “ Q. You do not know whether they whistled there or not, do you ?
“\A. No, sir; I did not pay any attention to it.”
Plaintiff gives the only testimony relied upon to take the question out of the former decision of this court and leave it a question for the jury. She testified upon, the second trial that she was familiar with the signals that trains give at crossings. She was then asked:
“ Q. State whether any such signal as that whs given for that crossing that day.
“ A. There was not.”
Her testimony upon the former trial is as follows: Cross-examination:
‘ ‘ Q. Prom your recollection, can you state whether the bell was rung or not ?
“ A. I could not tell whether the bell was rung or not.”
Re-direct examination:
“ Q. Do you understand he is calling your attention to what occurred at the crossing or at the station?
“A. I could not hear anything at the crossing where I was struck.
‘ ‘ Q. But just before you were struck, and after you saw the train, you say you first heard the whistle, and then the alarm whistle ?
“ A. Then the alarm whistle.
“ Q. To the time you saw the train was the bell rung?
“ A. I could not tell whether the bell was rung or not. When I saw the train I was listening.
“ Q. Then can you state that the bell at the time you were listening was not rung ?
“A.. I could not say it was not rung, but the alarm whistle made such a frightful noise I could not think of anything else. But that bell might have been ringing. I might have heard it at the same time.
“ Q. But, if the bell had been ringing before you heard the alarm, would you have heard it ?
“A. I should.
“ Q. Was it ringing before you heard the alarm ?
“A. I did not hear it.”
Upon this trial she testified that she did not know whether the bell was rung. Upon the former trial she testified she did not stop, but slowed up as she approached, the track, and all the other witnesses who saw her corroborated her. These witnesses so testified upon the second trial. Upon the second trial she testified that she did stop just as she reached the line of the defendant’s right of way, and looked and listened. She was riding in a buggy with closed sides and back. She was quite deaf in her left ear, — the one nearest the train. Her testimony upon the two trials is so contradictory that it is impossible to reconcile it. The situation is this: Seven witnesses, including those who gave the signals, swore positively that they were given. Plaintiff alone testified that the whistle was not blown, but that she did not know whether the bell was rung. A woman, partially deaf, sitting in a closed buggy, with the noise made by her carriage, is allowed under this record to outweigh the testimony of seven positive fitnesses. Her testimony, under such a state of facts, does not rise to the dignity of evidence. Britton v. Railroad Co., 122 Mich. 359 (81 N. W. 253). Such a verdict is not based upon evidence, but upon either prejudice or sympathy. The language used in Baldwin v. Railway Co., ante, 417 (87 N. W. 380), is applicable here. See, also, County of Montmorency v. Putnam, 127 Mich. 36 (86 N. W. 398).
Was plaintiff guilty of contributory negligence? She testified upon the former trial that she heard the whistle-of the train when it left the station. The engineer then testified that he did not know whether he blew the whistle as the train started, but it was not customary to do so. The train consisted of 16 freight cars. The engine, when it started, stood between 1,900 and 2,000 feet from the crossing. She was then between 250 and 280 feet from the crossing. On the second trial she testified that she heard no whistle then, but did hear the puffing of the engine and the ringing of the bell as the train started from the station. She also testified upon the former trial that she heard the rumble of the train after it left the station. She heard all these sounds while riding in a closed carriage, with the train nearly 2,000 feet away. Upon the second trial she testified that she stopped upon reaching the line of the right of way, but heard nothing, although the train could not have been over 400 or 500 feet from her. If she heard the puffing of the engine,, the ringing of the bell, and the rumbling of the train when she was from 250 to-' 280 feet from the crossing, it is impossible to believe that she would not have heard the train if she had stopped at the line of the right of way. The undoubted fact is, as she testified upon the first trial, and as all the other witnesses who saw her testified both upon that trial and upon this, that she did not stop. If, however, it be assumed that her testimony is true, and that her vision was obstructed from Ukle’s house to the railroad, while she was standing at the right of way, so that she could not see the approaching train, what was her duty under the circumstances ? The train was on time. She knew that it was either on this road or on the Ann Arbor road, but did not know which. There was nothing to induce the belief that it was on one road rather than the other. She had no right to assume that it was on the other road. It was her duty, if she could not see, to stop and ascertain, before attempting to cross, whether the train was on the track which she was approaching. This she could have determined by a wait -of two or three minutes at the longest, without alighting from her carriage. According to her theory, the trainmen could not see her, neither could she see them. They, could not know she was approaching. She might have known, by the exercise of reasonable care, that they were approaching. She could stop, as it was her duty to do. The train could not. The engineer was not called upon to ■attempt to stop until he saw her, and saw that she was in peril. The train was running at a lawful rate of speed, ■and no claim is made that the trainmen did not use all possible effort to avoid the accident when they saw she was in danger. Where two railroads were 264 feet apart, .and a person approaching very much in the same manner •as this plaintiff was approaching saw the smoke of an •approaching train several hundred feet distant, and supposed it was on the farther track, instead of the one nearest to him, and drove on under that belief, we held that he was guilty of contributory negligence, and that it was his duty to stop and ascertain which road the train was on before he attempted to cross. Brinker v. Railroad Co., 121 Mich. 283 (80 N. W. 28). If it was the duty of plaintiff to so act in that case, a like duty devolved upon the plaintiff in this case, who heard the train, and knew it was on one of two roads, but could not tell which without ■stopping. The noise of a moving train was as much a warning to her in this case as was the smoke of a moving train to the plaintiff in that. A wait of two or three minutesj as above stated, would have solved the question for Tier, and saved her injury. It was her duty to wait. I •am of the opinion that she was herself negligent. The .judge should have directed a verdict for the defendant.
. Judgment reversed, and I think that no new trial .should be ordered.
Hooker, J.
We are of the opinion that the judgment should be reversed and a new trial ordered upon the ground- that the verdict was contrary to the weight of the testimony.
Montgomery, C. J., Moore and Long, JJ., concurred with Hooker, J. | [
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] |
Long, J.
This action is brought to recover damages for the death of Henry Rouse, occasioned by the claimed negligence of the defendant. It appears that Rouse, plaintiff’s intestate, a teamster, was riding with his son-in-law, one Garlick, also a teamster, in an ordinary dirt wagon, along Oakland avenue, in the city of Detroit, on the night of September 6, 1898. The men had been some eight miles out in the country, and about 8 o’clock that night, in returning, they drove along Oakland avenue. The defendant operates a double-track street railway on this avenue. Its cars in going north pass over the east track, and in returning southward in the city pass over the west track. ' Rouse and Garlick entered upon Oakland avenue north of the north terminus of these car tracks, the tracks there forming a “ Y,” so that the cars may turn and proceed back to the city. After the men had driven over the “ Y,”£going south, they saw the car pass them, going north on the east track. It appears' that they knew that the car must turn and follow them south on the west track. They were going south between the west track and a ditch on the west side of the avenue, the street being an unpaved one. The distance between the car tracks and the ditch is in some dispute; the plaintiff’s witnesses putting it between 9 and Í0 feet, and the defendant’s between 10 and 11. The parties could see that there was a ditch along the side of the wagon track, but Mr. Garlick claims they could not tell in the dark how deep or dangerous it was, or how close to their wheels; and there was some evidence tending to show that at places the roadway was so narrow that teams were driven into the ditch in the daytime when cars were passing. The ditch was from 18 inches to 2 feet deep. They had never passed over this road before; and the plaintiff’s claim is that they were driving carefully and slowly, that the team was on a walk in the beaten track made by the regular travel, and that Garlick, who was driving, kept the reins steadily in his hands, and let the horses go along the regular way. It appears that the footboard of the car lapped over the roadway outside of the rail 2 feet, leaving only 8 feet or less between the ear and the ditch; that the wagon, from hub to hub, lacked 1 inch of 6 feet in width.
It is claimed by the plaintiff that the deceased and his companion expected that the car would go back, and so kept looking around; that Rouse looked around two or three times; that, the last time he looked, he discovered the car not far behind them, coming rapidly; that he called to Garlick to gee out, which Garlick says he did as soon as possible; but that the wagon was struck just north of the alley north of Westminster avenue, and overturned, injuring Mr. Rouse, and from which injuries he shortly after died. It is also the claim of plaintiff that the car was running at a rate of speed of more than 25 miles an hour; that, when the wagon was struck, it was with such force that a new white-oak reach, 5 inches wide by 21-inches thick, was snapped like a pipestem; that the motorman applied the brakes instantly, and yet the car ran 305 feet farther before it could be stopped; that, when the wagon was struck, the horses galloped away; that the car shot past the horses, and, although they were on a gallop or run, they crossed the track behind the car which passed them, 140 feet south of the place of the accident. It is also the claim of the plaintiff that, as soon as the parties discovered the car approaching, Garlick hastened to drive to the edge of the ditch, out of the way of the car, but it was coming with such speed that it was too late to escape it.
It was the claim of defendant that, just before the car struck the wagon, the horses turned towards the track, bringing the wagon so near the track that the car ran against it. The motorman testified on his cross-examination that: “The first I saw of the wagon, it was about 5 feet ahead of my car;” and further that: “I could not swear that I noticed in that 5 feet that they turned nearer to the track, and that I would have cleared them if they had been as far away as they had been 5 feet before.”
The court submitted the question to the jury under the claims of the respective parties. The jury returned a verdict in favor of plaintiff for $5,550.
Defendant’s counsel contends that the negligence of Mr. Garliek, the driver, contributed to the accident, and the plaintiff was not entitled to recover; that the admission of Garliek that he did not see the car until it struck him is conclusive evidence of contributory negligence. We think this contention cannot be sustained. According to Garlick’s testimony, they were on the lookout for the return of the car. Sometimes Rouse looked backward, and at other times Garliek. He testified that the car was running at a very high rate of speed. Counsel for defendant contends that the case is governed by Fritz v. Railway Co., 105 Mich. 53 (62 N. W. 1007); Blakeslee v. Railway Co., 105 Mich. 468 (63 N. W. 401); Doherty v. Railway Co., 118 Mich. 209 (76 N. W. 377, 80 N. W. 36). We think these cases are not controlling of the present. The Fritz Case was put expressly upon the ground that the driver of a milk wagon turned suddenly and unexpectedly in front of the car. It was said in that case: “It is not a case in which the plaintiff had been driving up the track, and was run down by the motorman, but an attempt to cross the track, unexpected and sudden.” The Blakeslee Case was put upon the same ground, — that a sudden turning in front of the car, without any effort to ascertain if a car was coming, was the cause of the accident. In the Doherty Case a pedestrian was held guilty of contributory negligence in entering upon the railway track in front of an approaching car, which would have been visible to him had he looked when within two or three feet of the track.
The present case falls within the rule laid down in Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139). In that case a woman was driving a covered milk wagon alongside the track, in the ruts made by travel. She heard a hell behind her, and attempted to turn out farther, but, before she could do so, her wagon was struck. It was held that the question of contributory negligence was for the jury. It was said by this court:
“She had a right to drive down the track, just as she did; and if she turned out, or tried to turn out, immediately on the sounding of the gong, she was blameless, and there is no contributory negligence in the case. * * * A man may drive ahead of you with a wagon, * * * but you must wait until your opportunity comes to pass; and the same rule applies to street cars.”
The court instructed the jury in accordance with the rule in the Manor Case.
It is claimed that the court was in error in admitting testimony as to the speed of the cars upon Beaubien street and Oakland avenue at other times than on the occasion of the accident. We think there was no error in this. The car men had testified that the car was running only about six miles an hour, and evidence was called out from them by defendant’s counsel that the cars could not run any faster there because of the lack of power and rough track. The evidence objected to was admitted in rebuttal.
The principal contention in the case is that the court was in error in its charge as to the measure of damages. The court charged the jury:
‘ ‘ I am asked to charge you, and I do charge you, that there can be no recovery in this case for any pain or suffering or other injury of the deceased caused by the accident to Henry Rouse; that the only damage that can be awarded in this case, if the plaintiff is entitled to recover, is the pecuniary injury which has been occasioned by the death of Henry Rouse. * * * If the plaintiff is entitled to recover, she is entitled to recover that pecuniary damage, that actual, money damage, which she has suffered by being deprived of the money which her husband would have given her — given to the family — during his lifetime. In determining how long he should live, you may take into consideration the American Experience Tables, which are published, I think, in Howell’s Statutes, which show the average expectation of life, at his age, 25.99 years; and you may properly find that Mr. Rouse would likely have lived that much longer. Now, the question is what he would have contributed to his family during that time, — what it is probable he would have contributed. You have heard the testimony as to the amount that he had earned. What was it probable that he would have earned in the future, and what portion of his earnings is it probable would have gone to his family ? It is possible, gentlemen, as the children grew up, that they themselves might have contributed to the family, and his own contribution might not have been so much. It is possible that quite the contrary might have been the case, — that his own contribution as the children grew might have been equally large. But all these are questions for you, and not questions for the court. * * * ”
The deceased left surviving him a widow and seven children, — one of them a married woman, the wife of Mr. Garlick. It is the claim of defendant’s counsel that the charge of the court that the damages would be tbe present worth of the sum that deceased would probably have given his family during the period of 25.99 years, his expectation of life, was erroneous, because four limitations were entirely overlooked: (a) The expectation of the life of the widow; (5) the minority of the children; (o) the marriage of one daughter; (d) the earnings of the deceased.
In Hurst v. Railway, 84 Mich. 545 (48 N. W. 46), the question of the measure of damages for the death of a minor is discussed. It was said:
“ There would be a limit upon this, dependent upon the probable duration of the lives of the parents, as no estimate of such prospective earnings [of the son] could extend beyond the expectancy of the lives of the parents and the survivor of them.”
In that case the measure of damages was also limited to the prospective earnings of the child until he became 31 years of age, taken in connection with his prospect of life, less the expenses of his own care and support.
The law requires in this class of cases that the administrator must show that some person has suffered some pecuniary injury, by the death. The statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. This is a matter that must be made to appear by the proper allegation in the declaration, and proof of the fact. Hurst v. Railway, supra. See, also, Nelson v. Railway Co., 104 Mich. 588 (63 N. W. 993); Walker v. Railway Co., 104 Mich. 616 (63 N. W. 1032). These damages must be limited to the pecuniary damage sustained by those legally entitled to support. Van Brunt v. Railroad Co., 78 Mich. 530 (44 N. W. 331).
We think counsel for defendant correct in saying that these limitations should have been stated to the jury. Damages should have been limited to the expectation of the life of the widow. As to the children, no damages could be recovered for their support after they each became of age, and none for the maintenance of the married daughter. The court should also have instructed the jury that the amount of the recovery must be based upon the earning capacity of Mr. Rouse as shown by the testimony; that it would be the present worth of the sum of money he might earn during his expectancy of life and devote to his family, but limited by the expectancy of the life of the widow, if her expectancy of life was less than that of her husband, and the minority of the children, so far as they were concerned in the fund. We do not pass on the'question whether damages might be allowed for a dependent child after he becomes of age.
For this error in the charge, the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Moore, J.
The plaintiff lives in Newaygo county, and was engaged in making and selling railroad ties and lumber. The defendant is a corporation, with its office in Grand Rapids, Mich. Its business was buying and selling railroad ties and lumber. Its officers were William A. Phelps, president, Charles P. Young, vice-president, Charles A. Phelps, secretary and treasurer. Josie A. Young, the wife of Charles P. Young, and the sister of William A. Phelps, was a stockholder in the company. Charles P. Young was the active man in looking after the business in Newaygo county. The plaintiff sold and delivered ties and lumber to the defendant to the amount of more than $10,000. The dealings between the parties commenced as early as 1895. It is agreed that a full set tl'ement was had in March, 1897, and it is not sought to go into the transactions between the parties prior to that date.
In March, 1899, plaintiff gave the following receipt:’
“Grant, Mich., March 20, 1899.
‘ ‘ This article is my receipt in full to the G. R. Bark & Lumber Co. and C. F. Young to date for all demands of every kind and nature, and I am to deliver on car at Grant, on or before March 22nd, 14; 000 feet of No. 1 tamarack piece stuff; I this day having been paid for the same in the Grand Rapids Bark & Lumber Co.’s settlement with me, this receipt covering the delivery of the same. '
“James Shavalier.”
In May, 1899, he gave the following receipt:
“Grant House. May 2nd, 1899.
“Pay Roll James Shavalier.
“Grant, Mich., May 2nd, 1899.
“James Longcore, amount, $23.90; William Longcore, $11.95; Earl Finchman, amount, $4.26; Ed. Schick, amount, $21.00; T. Ashley, amount, $14.74; C. L. Disart, $5.30; brought down, $81.15.
■ “ The above is amount of labor due in full to date. Received this day from Jorgensen & Hemingsen $17.73, and check 4291, for $63.42, to pay above; total, $81.15, — ■ in payment of labor claims to date. Also check 4290, for $80.00, in full settlement of Rice-Lake job, and all claims of every and any nature to date, including the lumber and ties now at Grant.
“ J. Shavalier.”
There have been no business transactions between the parties since the last receipt was given. It is the claim of plaintiff that, when these receipts were given, he supposed credit had been given him for certain items for which he was entitled to credit, and that he was so informed by Mr. Young, but that the items were not in fact credited to him. It is the claim of defendant that statements were rendered from time to time to Mr. Shavalier, that he was credited with all he was entitled to have credited, that defendant owes him nothing, and the jury should have been so instructed. The judge submitted the case to the jury. A verdict was rendered in favor of the plaintiff.
The case is brought here by writ of error.
The items for which plaintiff makes claim are: Upon the Brower mill, $200; timber sold to Abrahams, $300; Jorgensen & Hemingsen bill, $245.77; goods had by Young in Grand Rapids, $55.03. The defendant claims that these items all relate to transactions about which it had no knowledge whatever; that they were transactions between plaintiff and Charles F. Young as an individual. Mr. Young makes the same claim, and says that, in his individual dealings with the plaintiff, he gave him all proper credits, and that plaintiff has been fully paid.
As to the first item, it is the claim of plaintiff that he sold a portable mill to defendant, which it afterwards sold; and that he should have been credited $200 in the transaction. There was introduced in evidence the following:
“COTTRTRIGHT HOUSE.
“Newaygo, Mich., April 27, ’97.
“C. F. Young,
“Grand Rapids, Mich.:
‘ ‘ Please arrange, ” etc. ‘ ‘ I hereby assign to you all my interest in the sawmill and engine sold to Carl Brower; everything, after paying claim of Chas. Fox & Company, to belong to you.
“James Shavalier.”
“Charles Fox.
“Grand Rapids, Mich., March 8, 1900.
“Received from C. F. Young, May 29th, 1897, $50.00; on January 20, 1898, $37.00; and surrehdered to him notes of Carl W. Brower covering engine and sawmill of James Shavalier.
[ Signed ] ‘ ‘ Charles Fox. ”
It is the claim of defendant that it had nothing to do with this transaction. It is the claim of Mr. Young that he had fully settled the matter with the plaintiff.
As to the $300 claim for timber sold to Abrahams, it is the claim of plaintiff that he bought the timber from a number of 40’s from one Yeenboer for $200; that the con tract was made out in his name; that he at once assigned it, as he supposed, to the defendant, as security for any balance he might owe it; and with his consent the timber from part of this land was sold to Abrahams for $500, and he should have been credited $300 in the transaction. The record shows that in October, 1897, Mr. Yeenboer made to the plaintiff a land contract, which, after naming the parties and describing the land, reads as follows:
“ In consideration of the payment to me of $200.00, the receipt of which is hereby acknowledged, I do for myself, my heirs, and all parties interested therein, hereby sell, assign, and transfer to James Shavalier, and to his heirs and assigns, all the timber, standing and down, on the above-described lands, which is over seven (7) inches in diameter, with the right to himself, his heirs and assigns, to go onto said lands, and to manufacture and remove therefrom the said timber, at any time within two (2) years from November 1st, 1897; it being understood and provided that the timber which is removed from section 16 shall be removed within one year from November 1st, 1897.
“Witness my hand and seal this 4th day of October, A. D. 1897.
“M. Yeenboer.”
Indorsed on the back as follows:
“Grant, Mich., Oct. 4th, 1897.
“For a valuable consideration, the receipt of which is hereby acknowledged, I hereby assign all my rights and title to the within timber to Josie A. Young.
“James Shavalier.”
The $200 was paid to Mr. Yeenboer with a check given by Mrs. Young. Mr. Shavalier never put a dollar into the transaction. The record also shows that afterwards Mr. Shavalier negotiated a sale of timber from some of this land to Mr. Abrahams for $500, and represented to him the land belonged to Mr. Young. Shavalier was paid $50 commission for his part in the transaction by Abrahams. It is the claim of defendant that it had nothing to do with this transaction. It is the claim of Mr. Young that he bought the timber of Yeenboer, and sold part of it to Mr. Abrahams. The record shows the defendant paid plaintiff 14 and 15 cents apiece for the ties. Mr. Young-claims that his purpose in buying the timber was partly to supply the timber to enable Shavalier to make ties, and that, while defendant was to pay 14 and 15 cents apiece for the ties, the plaintiff was to receive in fact, by virtue of an agreement between himself and Young, but 11 and 12 cents, and that the other 3 cents was to be paid to Young for the timber which went into each tie, and that defendant company had no knowledge of this arrangement. The plaintiff admits he was to be paid but 11 and 12 cents for the ties originally, but that he was paid more because he could not afford them for that price. As bearing upon the question, the following paper, which Mr. Shavalier testified he executed and delivered to Mr. Young, was introduced in evidence:
“Hotel Butler.
“Newaygo, Mich., May 31, 1898.
“ In connection with my agreement to cut the logs, and manufacture into ties, and deliver at railroad track for the G. R. Bark & Lumber Co., the tamarack timber from swamp land, known as ‘Rice-Lake Job,’ at 11 cents per tie, and to pay $1.00 per thousand feet stumpage for the logs which I remove or have removed from said swámp land and manufactured into lumber, I further agree to take from the stump and lands, manufacture, and deliver in the cross-pile at Grant, the elm and ash standing and down on the northwest quarter of the southwest quarter of section 10, township of Grant, together with the elm and ash known as the ‘ Dr. Yeenboer Lands,’ and to deliver such elm or ash lumber in cross-piles at Grant, at not to exceed $5 per thousand feet, mill culls out, in addition to the cost of saw bill, and delivered in cross-pile in Grant. I am to have one-half of the net profit from the sales of said hardwood lumber.
“James Shavalier.”
Mr. Young claimed this agreement was carried out in full.
As to the item of $245.77, the record shows that, about the time the parties began to deal together, Mr. Young introduced the plaintiff to the firm of Jorgensen & Hemingsen, and arranged that they should sell supplies to the plaintiff at 10 per cent, discount; that monthly statements should be made, and that defendant would pay the bills, and charge the amount paid to the plaintiff. These bills aggregated nearly $4,000. The first monthly statement was sent to the office of the defendant. Mr. Young then requested that no more of them be sent to the office, but that he would call for them. The account had not been opened very long before Mr. Young began to take home with him chickens, butter, eggs, and other family supplies, which amounted in the aggregate to $245.77, which were charged to the plaintiff. After the first month, Mr. Young called for the bills, and his claim is that he and the plaintiff went over them carefully, checking off the items, and that he gave Mr. Shavalier credit on his personal account for all the items which he personally had. Mr. Shavalier admits that many of these statements were shown him, and some of them bear his check marks. As bearing upon the same question, it was shown that Mr. Shavalier opened in his own books an account with “ C. F. Young, Personal,” in which some of these items appear.
The other item was of substantially the same character as that of Jorgensen & Hemingsen. It is the claim of Mr. Young that he gave the plaintiff credit for all these items, and that he has been paid in full.
We do not deem it necessary to discuss all of the many assignments of error. We shall not discuss the effect of giving the two receipts, or whether it was error to allow plaintiff to show by parol that, when he assigned the Yeenboer contract to Mrs. Young absolutely, he supposed he was assigning it to the defendant as security, nor whether he could contradict by parol the written assignment of the mill contract to Young, and show he sold it to defendant. As before stated, Mr. Young testified these items were all his individual dealings with the plaintiff. The other officers of the corporation testified they were not the business of the corporation. The record is entirely barren of any competent testimony that defendant had authorized Mr. Young to engage in any of the transactions out of which these items grew, or that it had ever been benefited by them, or, after knowledge of them, it had ever ratified his action. There is not nearly the proof tending to show authority upon his part to act for defendant that was shown in the case of Bond v. Railroad Co., 62 Mich. 643 (29 N. W. 482, 4 Am. St. Rep. 885), where the court said a verdict should have been directed. If there is any occasion for any litigation in relation to these transactions on the part of Mr. Shavalier, it is not with the defendant. The court should have granted the motion of the attorney for the defendant to direct a verdict in its favor.
Judgment is reversed, and new trial ordered.
The other Justices concurred. | [
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Hooker, J.
Myers & Co., residents of Niagara Falls, N. Y., were the payees and holders of the note in suit. It was a negotiable promissory note, payable to their order. It was sold before maturity to the Citizens’ Savings Bank of Detroit, under circumstances which admittedly made the bank a bona fide purchaser. It was sold to this bank by E. F. Bacon, the attorney of Mjmrs & Co., to whom it had been sent for collection. It does not appear whether or not Myers & Co. directed such sale. Bacon indorsed the note before sale in blank, as Myers & Co. had previously done. The note went to protest for nonpayment, and subsequently it was indorsed to “ any bank or order,” over the signature of the Citizens’ Savings Bank, and transferred to the State Bank of Croswell, which sent to the Citizens’ Savings Bank its check for the amount due upon the note. The plaintiff is the cashier of the Croswell bank, and testified that he is not the owner of the note, having brought this action for the benefit of the bank. This is a substantial statement of plaintiff’s case.
The defendant, who is the maker of the note, sought to show that the note was obtained by fraudulent representations made by an agent of Myers & Co. He caused Bacon to be called as a witness, who testified that he received the note before maturity for collection, and indorsed and sold the note to the Citizens’ Bank, and received payment of the consideration, which he put in the bank to his own credit, and checked out, as he did other money. He testified that he sold the note because he wanted to, and did not know that he was directed to do so by Myers & Co. It was shown that, after protest of the note, Bacon had a conversation about the note with a stockholder and director of the Croswell bank, who was also its attorney, who said that his bank would take it. Bacon also wrote the plaintiff, who was cashier of that bank, about the, note, as did also the Citizens’ Bank, after Bacon had told its officers that the Croswell bank would take the note. The court permitted the jury to find that the purchase of the note by the Croswell bank was collusive, as agent for Myers & Co., — holding that, if it was not a purchaser in the ordinary sense, it would not be entitled to set up the bona fides of the Citizens’ Bank, — and refused to direct a verdict for the plaintiff.
The judge instructed the jury that:
“ Upon the third proposition, I need say but little about it, outside of the request that I shall give you, except to say that it does appear, if I am correct, that the note was not indorsed for collection by the bank over to Battersbee, and that the suit was not brought by Battersbee for the use and benefit of the bank, but was brought in his own name, and the plaintiff admits he was not the owner. Beyond that, I think I need not say anything, except as to what will be covered by the request. On the part of the defendant I charge you as follows, and the request has a bearing upon the second and third propositions involved in the case: If the jury find from the evidence that the plaintiff was not the owner of the note in suit at the time the suit was brought (I have already stated to you that he does not claim to have been the owner when suit was brought), then, under the pleadings, the plaintiff is not entitled to recover, unless he has shown affirmatively, by a preponderance of evidence, that he had authority to bring the suit; and I state it in that way because there is no indorsement by the bank at Croswell to the plaintiff, and no authority in writing to bring the suit in his own name is produced at the trial. I ought to add to that, gentlemen, I think, however, that if the bank did give Mr. Battersbee, as its cashier, authority to collect this note, and he brought suit with full knowledge of the bank, and for its use and benefit, and that is all there is of that part of the case, then you could not refuse collection of the note merely because the suit happened to be brought in the name of Battersbee, rather than in the name of the bank. But I mean to leave it in shape that, the bank not having used the note or any of the proceeds from Batters-bee after collection, the authority to bring suit must have been affirmatively shown by the plaintiff, before he could recover.”
The plaintiff’s counsel says that, being indorsed in blank, the possession of the note was sufficient proof of plaintiff’s right to sue, and that it was error to permit the jury to defeat the plaintiff upon this ground, which they may have done under the charge.
In the case of Kost v. Bender, 25 Mich. 515, it was held that the payee of a note could not avoid the equities in favor of the maker by repurchasing the note from a bona fide holder, to whom he had sold it. This rule should apply in this case, if, as claimed, the transfer to the Croswell bank was colorable only, to cover an actual payment or repurchase by Myers & Co., or by their attorney on their behalf. There was testimony from which this might be inferred; and in this connection we may add that the conduct of the plaintiff and Myers & Co. and their attorney, as well as any concealment or refusal to show the true inwardness of the transaction, were in the case for the consideration of the jury, and it was not error on the part of the judge to so state, or to give the instruction that “I think I should feel obliged to decline to compel him to produce the letters, but you may comment upon it if the case goes to the jury;” and on the argument to the jury defendant’s attorney, following the suggestion of the judge, says, “You may take into consideration the attitude of Mr. Bacon on the stand, the interest he has in the case, and the refusal to submit to you the letters and correspondence.” There may be cases where such instruction would not be warranted, but, in view of the relation-of all of these persons to the transaction, we think it proper in this case. See Staal v. Railroad Co., 57 Mich. 239 (23 N. W. 795).
We are of the opinion, however, that the court erred in his instruction upon the subject of plaintiff’s ownership. The plaintiff was trying his case upon the theory that the bank owned the note. If it did own it, it was lawful for it to permit suit to be brought upon it in the name of another, and, the note being indorsed in blank, the possession was presumptive evidence of ownership by the plaintiff. Furthermore, the plaintiff was the cashier of the bank, and presumptively authorized to represent the bank in the collection of its paper. Whether the bank owned this paper, or held it as agent for Myers & Co., there was no testimony in the case tending to overcome the presump tion that the plaintiff was entitled to bring an action upon the note. He had a presumptive title, he was cashier, and represented the bank in whatever capacity the bank acted (Boyd v. Corbitt, 37 Mich. 52; Moore v. Hall, 48 Mich. 143 [11 N. W. 844]; Coy v. Stiner, 53 Mich. 42 [18 N. W. 552]); and, if it did not act at all in the premises,. there is nothing to show that plaintiff was not authorized to collect the note for whoever owned it.
The judgment must be reversed, and a new trial ordered.
Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit. | [
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] |
Hooker, J.
The plaintiff cut and claims to own certain logs and bark which grew upon land described in the declaration. It was afterwards taken from his possession by the defendant under a claim of ownership — First, as purchaser at a sale by the sheriff, under an auditor general’s warrant; second, under a deed from one Ida Farnham, who is alleged to have owned the premises. Thereupon the plaintiff replevied .the logs and bark. The evidence offered upon the trial showed that the property sold by the sheriff consisted of 1,764 logs. The jury found a verdict for the plaintiff for all of the property except the 1,764 logs, and for these gave a verdict for the defendant, from which the plaintiff has appealed. His brief states that the questions are three, viz.:
“1. Were the proceedings had by the sheriff in making the sale of the 1,764 logs under the auditor general’s warrant void ?
“2. Were the proceedings had in the circuit court of the county of Alcona, in chancery, decreeing the sale of the lands for the taxes of 1893, void ?
“3. Should the circuit judge have granted a new trial upon any of the reasons assigned in the motion for a new trial ?”
The learned circuit judge held the proceedings upon the tax of 1893 valid, and those for the taxes of other years void. We may therefore confine our inquiry to the proceedings for the tax of that year.
Did the court err in holding the proceedings of the circuit court valid in decreeing the sale of the land for non payment of the tax of 1893 ? The testimony shows that the order fixed the 15th day of October, 1895, as the day for hearing the auditor general’s petition. Upon that day court was opened, and adjourned to October 29th upon the written order of the judge, according to the statute. Court was in session October 29th, 30th, and 31st, on which days tax matters were heard by Judge Kelley, of another circuit. Court continued in session November 1st and 2d, when it adjourned sine die. On the 5th of November the decree was filed as of the 31st day of October. Nothing indicates that objections were filed during the intervening time. Counsel contends that the landowner had a right to file objections within the first five days after October 15th, and that after the hearing on the 31st there was no opportunity to file objections. We are of the opinion that there was ample opportunity to file objections, under the decision in the case of Miller v. Brown, 122 Mich. 147 (80 N. W. 999). Had the decree been entered on October 31st, as it purports to have been, the court would have promptly set it aside upon a proper showing that objections had been seasonably made. In fact, it was not entered until the 5th, as the filing shows, it being filed nunc pro tunc as of the day of hearing. On the face of the testimony the court was not in error in sustaining the tax proceedings for 1893, and he might have added that title to the land was in the State.
The title to the land being in the State, it was the lawful owner of the timber thereon, and the plaintiff was a trespasser in cutting it. It did not become his by such cutting; nor was the original owner able to convey title to him, because she had no title, it having been devested by the sale for taxes, whereby her interest vested in the State absolutely after the expiration of the period for redemption. The defendant purchased and paid for the title of the State through proceedings intended to conform to a statute authorizing it. 1 Comp. Laws, § 3936. The plaintiff attacks this purchase upon the ground that the sale did not conform to the statute — First, because the notice posted was a notice of eight days only, and the notice of ■adjournment did not state the hour or place of sale; second, because the sale was not made within sight of the timber sold. We incline to the opinion that the plaintiff cannot question the regularity of this sale. The State has received its pay for the timber, and there is nothing to indicate that it questions the validity of the sale. Being good between the parties, plaintiff, a trespasser, cannot complain.
The only remaining question relates to the denial of a new trial. In this, we think, the court did not err.
The judgment is affirmed.
Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit. | [
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Montgomery, C. J.
The facts of this case are very clearly stated in the opinion of the trial court, rendered on. directing a verdict for defendant:
“ The defendant in this case has made a motion to take-the case away, from the jury, and direct a verdict for the defendant, for the reason that the circumstances of the case and the facts therein fail to indicate that the services, were rendered or received for compensation to be given by the defendant, but clearly repel the idea» that such payment was to be made or asked for. The facts in this case are as follows: The Kent Scientific Institute is an association which has been in existence since 1869. In 1885 the plaintiff became a member of the same, and was its secretary until 1889, at which time he was elected treasurer, and has remained treasurer from that time until the commencement of this suit. In 1896 he was re-elected secretary, and remained such until the commencement of this suit. In 1892, about the month of June, he was nominated by the defendant for the office of curator, and confirmed by the board of education of the city of Grand Rapids. The duties of curator were, substantially, to take care of the museum which belonged to the defendant, but which was practically used in connection with the high school of the city of Grand Rapids. In February, 1893, the board of education of the city of Grand Rapids placed the plaintiff upon its pay list at the rate of $900 a year. For the year 1893 and 1894 he was placed upon the pay list at a salary of $600 per year, which employment continued until the end of the school year 1897. From that time until the present the said plaintiff has been in office as curator, and continued as such until the present year, about May 10th. During the years 1897 and 1898 he submitted monthly bills to the board of education at the same rate that he had been getting from the board for his previous services, — $60 per month. These bills, as they were presented at the end of each month to the board of education, were not allowed by the said board of education. Plaintiff made efforts from time to time to have the board of education place him upon the pay list of its teachers, and pay'him for the work which he performed as such curator. In 1898 he spoke to Col. Fox, president of the board of directors of the defendant association, in regard to getting some pay for his services, and, as stated by the plaintiff in his testimony, for the sake of giving him pay for his services he was employed, under a special agreement, to make a catalogue of the museum, being limited in the amount to the sum of $50. It is also in evidence in the case that, in the fall of 1897, the plaintiff met Dr. Holmes, the president of the defendant association, and informed him that he had given up his key to the janitor, and that Dr. Holmes told him that he ought not to have done that, and thereupon he went and got the key of the museum, and retained possession of the same. He wrote in 1899 to Professor Volland, stating that he would like to have some arrangements made for his pay for back services and for future services, as there was no prospect of getting the same from the board of education. He also, it seems, wrote to other directors; and in December, 1899, the board took action upon the matter, declaring that they were not legally bound for any services which he had rendered.
“There is no question in the case but that the plaintiff did render services in connection with his duties as curator, but that can make no difference in this case, unless the facts and circumstances are such as imply a promise on the part of the defendant to pay for them. It will be noticed that the plaintiff, when he first became curator, in 1892, served until February, 1893, and that nothing whatever was said about pay, either by him or by any one connected with the institute, whereby he expected to charge, or did charge, the defendant for the same; that after the end of the school year 1893, when his salary was dropped by the board of education from the rate of $900 to $600 a year, without any question but that the services were worth just as much as they ever were, he made no effort to have the defendant make up any difference to him, or pay him anything in addition to what he was receiving from the board of education. During the vacations of the year, when he was on the paid list, the museum must and did need his attention, and yet he has made or makes no charge whatever for his services, nor has he done anything which would indicate in the slightest degree that he ever expected that any of the services that he performed upon the museum, or in connection therewith, were to be paid for other than by the salary which he received from the board of education.
“Now we come down to 1897, after he was dropped from the pay list. The plaintiff joined this institution in 1885. He knew its resources. He knew what its income was. He knew what the sources of income were. He knew that there were not more than from 25 to 50 members, paying the nominal sum of $2, and that the ordinary expenses of the institution took nearly all, if not quite all, of this amount for running expenses. He knew, all this time, that there was no money in the treasury, and no source from which any money could come, which could in any way be used to pay for the services of a curator. After 1897 he continued as before, but he rendered his bills to the board of education. As those bills were rejected, he made no complaint to the defendant of the same, or in any way indicated that he considered that they were liable for his services. It is true that in February, 1898, a communication was addressed to the hoard of education, at the instance of the defendant, through their committee, Dr. Holmes and Col. Fox, whereby they sought to have the plaintiff placed again upon the pay list, and speaking very highly of his services, and that the requirements of the museum were such that it needed the services of a curator about all the time. But, while this may be so, — and the evidence does not contradict that point, — still it does not seem to me that there is any circumstance in that which would indicate that there was any implied promise, or any implied contract, either on the part of the plaintiff to receive any pay for those services frpm the defendant, or on the part of the defendant to pay for the same to the plaintiff.
“The matter runs along until the date of this special agreement made for cataloguing the museum. No effort had been made by the plaintiff, or anything done by him, up to that time, which would indicate to the board that he ever did charge them with the services he had rendered, or that he expected them to pay for the same; and, when this contract was made, it was made, according to the testimony of the plaintiff himself, to quote his language:
“ ‘ I called upon. Col. Fox, as president of the board of directors, and asked for some pay for my services; and, for the sake of giving me pay for my services, I was employed to make that catalogue.’
“This clearly indicates that, while the plaintiff thought he ought to be entitled to pay for his services, .yet he did not consider that the defendant was holden for the same, and the making of this contract, in the manner and under the circumstances in which the^ plaintiff said it was made, negatives any idea of an implied contract for the services which the plaintiff claims that he rendered as curator.
“Again, there was some talk and some correspondence in reference to the museum being transferred to the State normal school at Ypsilanti; and the plaintiff, in that correspondence, holds the idea that he would be willing to work for so much, a part of which would go to reimburse him for the time and labor that he had already spent without remuneration, showing again conclusively that he was not holding this defendant liable for his pay for his services as curator.
“The only inference that can be drawn from the testi mony in this case is that this plaintiff has worked in and about the museum, familiarizing himself with all the various details of the same, until he may be said to be almost, a part and parcel of it, and so considered himself; that,’ wherever the museum would go, he, as a part of the museum, would go with it. I do not mean to be understood by this that it is anything uncomplimentary to the plaintiff, but rather otherwise. It is true that, if there was any reasonable inference to be drawn from the facts in the case that there was an implied contract on the part of the defendant to pay for the services rendered, the case should be submitted to the jury upon that theory; but, taking the whole facts in the case together, there is nothing in my mind whereby any such inference can be drawn; and, while I have every sympathy with the plaintiff in the matter, and while it may be true that such services as he did render as curator should not have gone unrewarded, yet still I fail to see where there can be any liability upon the part of the defendant. As is said by Justice Champltn in the case of Covel v. Turner, 74-Mich. 408 (41 N. W. 1091), where the facts are undisputed, whether a contract is made out or not is for the court to determine; that where the testimony negatives the idea that the defendant expected to pay for the services, or that the plaintiff expected to charge the defendant for the same, there could be no agreement, either express or implied; and that the court was right in directing a verdict for the defendant.
“To sum up the entire case: Here is an association which pays no officer; has never, in its whole history, paid out its funds for the services of any officer. Here is the plaintiff, belonging to the association for 15 years, knowing all the facts and circumstances connected with it, its source of revenue, its expenses, and knowing that its financial condition expressly negatived the idea that a curator was to be paid, or any other officer. In view of these facts, and of those which I have detailed, all the facts and circumstances in the case seem to me to expressly negative the idea that there was an implied agreement on the part of the defendant to pay the plaintiff for his services, and therefore the motion must be granted.”
We think, upon this statement of facts, that the trial judge committed no error in directing a verdict for defendant. It seems perfectly apparent, from the relations of the parties, that the services were rendered without any expectation that the defendant would compensate the plaintiff. The case, in this respect, is very similar to St. Jude’s Church v. Van Denberg, 31 Mich. 287. See, also, Cicotte v. St. Anne’s Church, 60 Mich. 553 (27 N. W. 682), and Hough v. Comstock, 97 Mich. 11 (55 N. W. 1011), and cases cited.
The judgment will be affirmed, with costs.
Hooker, Moore, and Long, JJ., concurred. Grant, J., did not sit. | [
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Montgomery, C. J.
This action is brought to recover of the defendants, who are, sureties upon an appeal bond, the amount of a judgment rendered in a summary proceeding to obtain possession of. lands. One George W. Wool had contracted with the plaintiff’s predecessor for the purchase of a certain parcel of land. The contract provided that, in case of default in payment, the vendor might declare the contract void, and re-enter upon the premises, and that, in case the contract should be so declared void, the second party, Wool, should thenceforth be termed a mere tenant at will of the first party, and liable to be proceeded against, etc., and that the vendor should have the right to recover damages by reason of the nonperformance of the contract. Wool went into possession of these premises under the contract, but on the 24th of September, 1896, plaintiff served a notice of forfeiture of the contract, accompanied by a notice to quit the premises, on Wool and his wife. On December 6, 1897, plaintiff commenced a suit to recover possession of the land before a circuit court commissioner. On December 15, 1897, judgment of restitution was given in favor of the plaintiff, and on the 20th of December Wool appealed to the circuit court, and filed the usual bond, upon which the two defendants are sureties. The evidence further shows that, from the time the said appeal was filed in the Wayne circuit court, the case was reached for trial at four different terms of court, and at each time postponed at the request of Wool, and with the consent of Walker, administrator, upon the payment to Walker of certain sums of money, namely: On July 12, 1898, $50; on July 18, 1898, $100; on November 28, 1898, $25; on April 21, 1899, $100. The circuit judge found, as matter of law, that, by his consent to delay the' trial of the cause, the plaintiff had released the bondsmen from all liability as sureties, and rendered judgment for the defendants.
It is contended by the plaintiff that the surety upon a bond submits himself to the acts of the principal and to the judgment; citing Dudley v. Conely, 125 Mich. 300 (84 N. W. 286). In that case it was held that a stipulation in. the ordinary conduct of the case, although it involved some delay in the proceedings, would not release the surety. But the case is unlike this in very important particulars. In the present case, the plaintiff had the right, on the failure of Wool to pay the amount due upon the contract, to declare a forfeiture, and proceed to recover possession of the property, or to press his remedy, and collect the contract price. See Goodspeed v. Dean, 12 Mich. 352; Hamilton v. Park & McKay Co., 112 Mich., at page 142 (70 N. W. 437). The plaintiff had, before bringing this proceeding, declared the contract forfeited, and was entitled, according to his contention, to proceed to obtain a recovery of the possession and the rental value of the property. The purpose of his suit could legitimately be for the latter object only. But payments were made from time to time. It is the contention of the plaintiff that these payments were made upon the contract. If so, the receipt of the payments amounted to a waiver of the right to proceed to recover possession, either in toto or pro tanto. If it be said that they were a waiver pro tanto only, and only operated to waive the right to insist upon his forfeiture previously declared until the termination of the time covered by the stipulation, yet it cannot be doubted that such waiver was, to that extent, binding upon the plaintiff, and that the payment by Wool was a sufficient consideration for it. As each succeeding payment was made, the plaintiff was in a position where he had elected to treat the contract as forfeited, and was entitled only to proceed against the land. New relations were established between the parties by each succeeding payment, and this furnished a consideration for the continuance. This case is unlike any of those cited by plaintiff’s counsel, in which mere delay, without any new consideration moving to the plaintiff, has been held insufficient. We think the case, on principle, is the same as it would have been had the defendants guaranteed the payment of rent, and the plaintiff disabled himself from taking legal proceedings to enforce the payment. A case involving this principle is Ducker v. Rapp, 67 N. Y. 464.
We think no error was committed by the trial judge. Judgment will be affirmed, with costs.
The other Justices concurred. | [
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] |
Hooker, J.
In 1886 Considine, Sullivan, and Parkin-
son became sureties for Jeremiah Connor upon an executor’s bond for $5,000 in the estate of Gallagher. Upon Connor’s final accounting he was found indebted to the estate in the sum of $3,943.76, and, upon appeal by the legal representatives of Sullivan (he being dead), the judgment in favor of the Gallagher estate was affirmed in the circuit court and in this court. In re Gallagher's Estate, 120 Mich. 365 (79 N. W. 570). In a subsequent action upon the bond a judgment was rendered against the obligors for $4,454.25 damages and $61.60 costs. This judgment was taken in form against Connor and Considine, both Sullivan and Parkinson having died. The complainant, as trustee for Considine and the estate of Sullivan, purchased this judgment for the sum of $4,400; the purchase price being furnished one-half by the Sullivan estate, and one-half by Considine. In an effort to obtain contribution from the Parkinson estate, the complainant procured the allowance by the probate court of a claim for $1,466 on March 28, 1900; and this bill is filed to enforce payment against property the title to which at one time stood in Parkinson, but which was conveyed by him to other defendants. Complainant claims that these were voluntary conveyances, and therefore void as against creditors. One of these parcels was Parkinson’s homestead, worth about $7,000, which he conveyed to his wife a short time before his death; the other, an undivided half interest held in common with his daughter, to whom he executed a deed 'designed to give her rights of survh vorship. In the circuit court the bill was dismissed.
The evidence satisfies us that for many years Parkinson was allowed by his wife to receive and appropriate the earnings of her property. The homestead was purchased from one Robinson on September 17,1875, for $7,000. In payment therefor Mrs. Parkinson and her son deeded property in which she had at least a life estate, for an agreed price of $4,000. A mortgage of $2,500 was given back to Robinson upon the homestead. Where the re maining $500 came from, does not appear. The title was taken in Mr. Parkinson’s name. On December 9, 1880, he deeded it to his wife, the deed being recorded July 8, 1884; and on October 11, 1884, she deeded it back to him. In 1892 Parkinson gave his wife a note and mortgage upon the premises for $7,000. This was recorded October 5, 1896. On October 29, 1896, Parkinson met with an accident, which caused his death soon after; and on the same day he executed a deed of the premises to Mrs. Parkinson, and at the same time she executed a discharge of the mortgage, and both were recorded on October 30, 1896.
The testimony convinces us that Mrs. Parkinson’s property paid for the homestead, and that she did not willingly part with her title'to it after her husband deeded it to her; having-yielded to his importunity for the sake of peace, and upon the repeated promise that she should have it again. He recognized hér claim by mortgaging it in 1892, and again by the deed which he made in October, 1896. We think neither of these instruments can be called a voluntary conveyance; and the fact that the security was not recorded should not postpone her to the claims of other creditors who had not meantime acquired' liens upon the property. Her claim and the homestead interest, which might be the subject of gift, exceeded the value of the property which she received. Dull v. Merrill, 69 Mich. 49 (36 N. W. 677).
The other parcel of land was purchased by Parkinson and his daughter, and was conveyed to them by a deed which made them tenants in common. Each owned an undivided half. At the time of the purchase he told his daughter that, if she survived him, she should have the place, and afterwards a quitclaim deed was made by each to the other, and they were deposited in his secretary, to which both had access. After his death her deed was destroyed, and his deed to her was recorded. The place was purchased subject to a mortgage of upwards of $2,000, u pon which she has made payments of interest and prin cipal. We are of the opinion that Mr. Parkinson’s interest in these premises should be subjected to the complainant’s claim, after deducting therefrom such sums as Ida Parkinson has expended for its benefit in the way of reduction of the mortgage, interest, taxes, insurance, and repairs, less its share of the rents received by her, and subject to its share of the mortgage still unpaid.
A decree in conformity to this opinion, wherein the amount of complainant’s claim will be settled, may be taken, with costs against Ida Parkinson, and the cause remanded for further proceedings. Defendant Jane Parkinson will recover her costs against the complainant.
Montgomeey, C. J., Mooee and Long, JJ., concurred. Geant, J., did not sit. | [
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] |
Moore, J.
On the 22d day of October, 1887, complainant purchased from Hibbard Baker, by land contract, lot No. 162 of the Waterworks subdivision of private claim 257, in the township of Hamtramck, county of Wayne, for a consideration of $500. Fifty dollars of the purchase price was paid at the date of the contract, $50 and interest November 25, 1887, $300 and interest during the year 1888, $50 February 1, 1890, and the final payment of $50 and interest April 1, 1890. Complainant did not record her contract. The lot was a vacant, unimproved one. Complainant received a warranty deed of the lot from Hibbard Baker and wife, in pursuance of said contract, on the 22d day of September, 1890, and two days later recorded it.
On May 3, 1887, Hibbard Baker and Howard G. Meredith executed to the State Savings Bank a mortgage on 45 lots of the Waterworks subdivision for a consideration of $5,000, which mortgage contained the following clause: “With the privilege of having any lot released at any time on payment of $300 and accrued interest, with three months’ extra interest.” This mortgage included lots 162, 251, 252, and 253. Releases were executed by the State Savings Bank at various times, releasing all the lots from this mortgage, except the four lots mentioned.
On the 28th day of February, 1889, Hibbard Baker and Howard G. Meredith executed to Caroline E. Richards a warranty deed for lots 251, 252, and 253. On the 18th of March, 1889, Caroline E. Richards deeded said lots to Gustave E. Mann, and on January 31, 1890, he deeded them to the H. M. Loud & Sons Lumber Company, which deed was recorded on the 15th of March, 1892.
On the 12th day of April, 1895, after all the lots subject to the mortgage had been discharged therefrom except lots 162, 251, 252, and 253, the State Savings Bank assigned the mortgage to the H. M. Loud & Sons Lumber Company for $472.42. Immediately on obtaining the assignment of this mortgage, the H. M. Loud & Sons Lumber Company commenced foreclosure proceedings against all of these lots, and on the 12th day of August, 1895, lot 162 was bid off to the H. M. Loud & Sons Lumber Company for $520.49, being the entire amount claimed to be due on said mortgage, together with the costs and expenses of foreclosure and sale. On the 13th of October, 1899, the H. M. Loud & Sons Lumber Company sold and deeded lot 162 to Anthony Muer for the sum of $750. The defendant the H. M. Loud & Sons Lumber Company had no knowledge of the existence of this mortgage to the State Savings Bank until some time after it purchased, in 1892. The complainant had no knowledge of the existence of this mortgage until the 3d day of February, 1896, and she paid all the taxes on this property from the time she purchased it until November, 1895.
November 24, 1899, complainant filed this bill, asking: (1) That the purchase of the mortgage by the Louds from the bank be decreed to be a full payment and satisfaction thereof as against Gray; (2) that the foreclosure and sale of lot 162 by the Louds may be declared null and void against Gray, and that the Louds may be decreed to release to Gray all their title and interest in and to lot 162 under and by virtue of the mortgage and foreclosure thereof; (3) for general relief. The court made a decree that neither party was entitled to have the other’s land sold prior to its own, but that the balance due on the mortgage, and expenses, amounting to $520.49, should be paid ratably by each of the four lots. The court also held that, as the defendant had sold lot 162 to a bona fide purchaser for $750, that amount was a fair valuation of the lot, and that the defendant should account to the complainant for that sum, less $130.12; and a decree was entered requiring the defendant to pay to the complainant the sum of $619.88, that being the difference between the amount for which the lot was sold and one-quarter of the mortgage and expenses. Both parties appealed from this decree, though complainant does not object to having it affirmed.
It is the claim of the complainant that, having pur chased, and substantially paid for, her lot before the other lots were sold to defendant’s grantors, although her conveyance was recorded subsequent to the record of the first conveyance of the other lots, she was entitled to have those lots sold first for the satisfaction of the mortgage; citing Cooper v. Bigly, 13 Mich. 463; James v. Hubbard, 1 Paige, 228; Ellison v. Pecare, 29 Barb. 333; Libby v. Tufts, 121 N. Y. 172 (24 N. E. 12). In Libby v. Tufts, though the second purchaser put his conveyance on record first, the first purchaser had fully completed his contract, and entered into possession of the premises. A reference to the other cases will show they, too, are not controlling in this one.
Complainant insists that, even though she may not insist upon the lots being sold in the inverse order of alienation, the decision of the circuit judge is undoubtedly in accordance with the law applicable to all cases where it would be inequitable to apply the general rule, and is as favorable to the defendant as the circumstances warrant; citing Cooper v. Bigly, 13 Mich. 463; Bernhardt v. Lymburner, 85 N. Y. 172; Woods v. Spalding, 45 Barb. 602; Hill’s Adm’rs v. McCarter, 27 N. J. Eq. 41. In Hill’s Adm’rs v. McCarter the first purchaser took his deed subject to the mortgage, and the court very properly held his land was not wholly relieved from the lien. An inspection of the other cases cited will show they are not decisive of this case in favor of complainant.
If Miss Gray’s contract had been put upon record, or if she had gone into possession of her lot, and her possession had been so obvious that it would have been notice to subsequent purchasers, her contention that the lots purchased by the defendant must first be sold would be sustained by the great weight of authority. As she did not put her contract upon record, and her lot was a vacant, unoccupied lot, can the decree of the circuit judge be sustained ? When Miss Gray-obtained her land contract, and made payments thereon, she obtained an interest in the land de scribed therein. Balen v. Mercier, 75 Mich. 47 (42 N. W. 666). Section 8988, 3 Comp. Laws, reads:
“Every conveyance of real estate within this State hereafter made, which shall not be recorded as provided in.this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.”
Sections 9035-9038, 3 Comp. Laws, provide for the recording of land contracts.
The object of the recording laws is to protect subsequent bona fide purchasers (Godfroy v. Disbrow, Walk. Ch. 260), and to prevent fraud by securing certainty and publicity in such dealings (Atwood v. Bearss, 47 Mich. 72 [10 N. W. 112]). In Burns v. Berry, 42 Mich., at page 179 (3 N. W. 924), in commenting on the policy of the recording acts, the court says:
“The protection which this statute gives to a bona fide purchaser does not proceed upon the theory, and is not made to depend upon the fact, that the grantor, at the time of such conveyance, had any interest in the premises whatever, or that any passed from him by his conveyance to such subsequent purchaser. It is not by force of the conveyance, but by the terms of the statute, that such subsequent purchaser acquires title to the premises. His grantor, having previously conveyed, has no title left to convey, and could therefore by his deed, unaided by the statute, pass none to any third person. Our registry laws, however, step in, and, for the purpose of protecting an innocent purchaser, give him what he supposed, and from an examination of the records had a right to suppose, he was acquiring by his purchase, and to this extent cut off the previous purchaser who negligently failed to record his conveyance.”
Cooper v. Bigly, 13 Mich. 463, throws much light upon the question involved in this case. Justice Campbell, speaking for the court, said:
“ It has always been understood to be the settled law of this State that, where mortgaged premises are conveyed or incumbered in parcels, they are, upon a foreclosure, to be sold in the inverse order of such conveyances or incumbrances, unless the mortgagee will be prejudiced by having the property sold in parcels, — a'thing which can never happen where the property, when mortgaged to him, was treated as separate. This doctrine was recognized in Mason v. Payne, Walk. Ch. 459, and Caruthers v. Hall, 10 Mich. 40, in both of which cases the principal exception to the rule was referred to and enforced. The same principle was recognized and explained in James v. Brown, 11 Mich. 25. It rests chiefly, perhaps, upon the grounds that, where one who is bound to pay a mortgage confers upon others rights in any portion of the property, retaining other portions himself, it is unjust that they should be deprived of their rights so long as he has property covered by the mortgage out of which the debt can be made. In other words, his debts should be paid out of his own estate, instead of being charged on the estates of his grantees. Any other rule would be, in effect, to enable him to enjoy for his own benefit that which he has once vested in another, and, in a measure, to recall his own grant. The rule cannot, therefore, depend upon the existence or nonexistence of covenants of warranty. It depends simply on the fact whether he has or has not seen fit, in making a disposition of a part of his incumbered premises, to charge it primarily with the payment of the incumbrance. Whenever he so charges any part, the purchaser takes it subject to the burden, and the relative date of his purchase is immaterial. See cases cited above; Welch v. Beers, 8 Allen, 151; Kilborn v. Robbins, Id. 466. It has, indeed, in several cases cited at the bar, been held bhat the covenant of warranty was very important in determining the intent of the mortgagor not to charge the mortgage on the property sold. But there is no satisfactory authority holding that, in the absence of such a warranty, no such intent could be presumed. On the contrary, wherever the doctrine of priority is respected at all, it has been enforced unless an opposite intent was made out. And such appears to us the common-sense inference; for a man owing a debt, for which his own property remains liable, must naturally be supposed to expect to have it paid out of his own means, unless he has bargained to the contrary. And this equity, having arisen in favor of the first purchaser, must remain in his favor against any subsequent equities of other parties derived from his grantor.
“There are some States in which all parcels of mort gaged land are held liable ratably. See cases collected in notes to Story, Eq. Jur. §§ 633, 635, 1233a. And it has been suggested by Judge Story, and was claimed on the argument, that a purchaser of one lot cannot be expected to search the record for the title of other lots, and therefore should not be subjected to equities attaching to them. But this reasoning entirely passes over the well-settled rule that, where a person is obliged to take notice of a deed, he is bound by notice of all that it contains which can affect him. Having notice of a mortgage covering other lots besides his own, he is bound to ascertain whether those lots have been sold previously in such a way as to throw any peculiar burden on the one he is purchasing, just as much as whether that lot has been directly, instead of indirectly, conveyed or charged, prior to his purchase, by his grantor or his predecessors in the title. The registry laws furnish the means for one investigation as easily as for the other. And the construction put upon these laws is in accordance with this view. Chapman v. West, 17 N. Y. 125; Chase v. Woodbury, 6 Cush. 143; Brown v. Simons, 44 N. H. 475. This latter case is a well-considered case, and collects the authorities quite fully upon the whole subject, so that it will not be desirable to multiply the citations.”
Brown v. Simons is an instructive case, not only because it is quoted with approval by Justice Campbell, but also because it comments upon and disapproves Ellison v. Pecare, which is relied upon by the complainant. We quote:
‘ ‘ If, however, at the time of the subsequent conveyance by the mortgagor, the grantee has no notice of the prior conveyance, in fact or constructively (the same not having been registered), such subsequent grantee ought not to take the land so granted subject primarily to the whole debt. On the contrary, as the prior grantee has failed to record his deed, and thus give notice of the true state of the title, the subsequent grantee, unless otherwise notified, may rightfully regard the land which is thus apparently in the hands of the mortgagor as primarily liable for the whole debt. It is true that the first grant by the mortgagor of a part of the property does not in terms impose a lien upon what is left, but in effect it creates upon it, as between the parties, a new incumbrance, and makes it liable pri marily for the whole debt, as much as if such mortgagor had mortgaged it to such purchaser to indemnify him against the original mortgage. It makes a case, then, that clearly comes within the spirit of our statute of enrollments, which is designed for the security of subsequent purchasers and creditors, to give notice of all conveyances of any estate in lands, whether legal or equitable. 1 Story, Eq. Jur. § 403; Parkist v. Alexander, 1 Johns. Ch. 398; 4 Greenl. Cruise, 448, 452, and notes; General Ins. Co. v. United States Ins. Co., 10 Md. 517 (69 Am. Dec. 174); Brush v. Ware, 15 Pet. 113. The Middlesex register act, which requires to be enrolled ‘all deeds and conveyances,’ was held to extend to every species of deed or instrument by which lands may be conveyed or affected; and therefore an appointment under a power is considered as a conveyance within the register acts. 4 Greenl. Cruise, 448; Scrafton v. Quincey, 2 Ves. Sr. 413. In that case it was contended that this deed was nót a separate conveyance, but only the execution of a power under a deed that was registered; but the court held that, if this. construction was to prevail, there would be an end of the registry law, for by this means a secret deed might be set up to defeat him who had registered before; and the court say the case is clearly within the mischief recited, which is to prevent a party from being defeated by a secret or pocket deed.
“In Brush v. Ware, before cited, the court, in discussing the general doctrine of notice, lays.it down that ‘no principle is better established than that a purchaser must look to every part of the title which is essential to its validity.’ And again, it is laid down in the same case that ‘ the law requires reasonable diligence in a purchaser to ascertain any defect of title; but, when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny.’ In accordance with such views it was held in Reeder v. Barr, 4 Ohio, 458 (22 Am. Dec. 762), that where a patent was issued to Newell, the assignee of Henson Reeder’s administrator, a subsequent purchaser was charged with notice of the equitable rights of the heirs of Reeder, because by the laws of Ohio an administrator has no power, unless authorized by the court of common pleas, to convey an interest in land. So, in Brush v. Ware it was held that, as the executor had no power of sale unless given him by the will, the •purchaser was bound to look into the will and see if such power was given. See, also, Backman v. Charlestown, 42 N. H. 134.
“If the first conveyance by the mortgagor, after the mortgage, is duly registered by the grantee, he has done all that he can do to give notice of the new burden that is thereby thrown upon the part which is retained by the mortgagor, and a second purchaser, charged, as he clearly is, with notice of the mortgage upon the whole land, and, when the deed is registered, knowing that the extent of the burden upon his own purchase must depend upon the fact of there having been a prior conveyance by the mortgagor, would, upon due inquiry, and in the exercise of reasonable diligence, be led by the record to a knowledge of the true state of the title, and the extent of the incumbrance upon the land conveyed to him. This he is directly interested to know, and the first purchaser has placed the means of knowledge reasonably within his reach, and it is his own fault if he neglects to avail himself of it. In the ■examination of the title to the part he proposes to buy he is led directly to the original mortgage, and he finds that Lis is but part of an entire tract in which his grantor has only a right of redemption, and which was originally subject to a common burden, but liable to be affected by a prior sale of another part of the entire tract. Under such •circumstances the different parcels of the tract mortgaged cannot, we think, be regarded as separate and distinct, so as to relieve him of the duty to inquire into the title to the other part; but we think that, in examining the title to the part he proposes to buy, he is led directly to a deed that puts him on inquiry as to the remaining part of the land. 2 Fonbl. Eq. book 3, chap. 3, § 1, note; 4 Greenl. Cruise, 452, note; Parkist v. Alexander, 1 Johns. Ch. 398. In accordance with these views is the doctrine of Chase v. Woodbury, 6 Cush. 143, where a mortgagor conveyed the whole of the mortgaged property to S. and R., to each an undivided half, and S., having recorded his deed, conveyed his half to C. before the deed to R. was registered; and, upon the payment by the representative of R. of the whole mortgage debt, it was held that he could not require contribution of C.,. because C. had purchased without any notice of the sale to R., and might, therefore, rely upon the other half being first held for the whole debt, although, had the deed to R. been recorded, it would have been notice of a lien on the land sold' to S. equally with the other; but the failure to record it was a failure of one claiming an incumbrance, namely, a lien on the estate for a contribution for one-half the money he might pay to redeem it, and this, the court held, stood upon the same-footing as if R. had a mortgage from the first grantor, which he had failed to record. The result of this case is. that & party purchasing a part of an estate under mortgage would be charged with notice of a registered conveyance of another part, when the effect would be to render his part so purchased liable to contribution equally with the other; and for the same reason he would be charged with such notice in a case where the effect would be to make his purchase primarily liable for the whole debt. The case of Chase v. Woodbury is directly in point, and fully sustains the views we have expressed.
“ It is true it has been suggested that this right to have first applied the lands remaining in the mortgagor’s hands, and those last sold, is a mere equity, and not a lien or incumbrance that comes within the provisions of the register laws, and so it is directly held in Ellison v. Pecare, 29 Barb. 333; and therefore it was decided that the deed first delivered would take precedence over a subsequent deed of another parcel, although the latter was. first recorded. In this case, however, it appeared that neither of these purchasers had knowledge of the original mortgage at the time of their purchase, and the court expressly decline to give an opinion as to the result had the second purchaser known of the existence of the mortgage, and had he examined the records, and, finding no previous conveyance, been induced to buy, supposing in good faith that he was the first purchaser; in which case it is said there would be some show of equity in favor of the second purchaser. In the case of La Farge Fire Ins. Co. v. Bell, 22 Barb. 54, it was held, upon much consideration, that the register act; which provides that ‘ every conveyance-not recorded shall be void against a subsequent purchaser in good faith of the same real estate, or any portion thereof, whose conveyance shall first be duly recorded,’ does apply to the equitable right which is acquired by a purchaser of a parcel of the mortgaged property to have the residue first applied to the payment of the mortgage debt, and that such equitable right will not be defeated by a prior conveyance of that residue,' unless it be by deed duly recorded, or other notice at the time of his purchase; and the reasons assigned for this doctrine are in no degree shaken by the subsequent case of Ellison v. Pecare, which appears to have been decided without an examination of the case of La Farge Fire Ins. Co. v. Bell. Indeed, it is difficult to see how any other result can be reached. The deed of a parcel of the tract mortgaged carries with it a well-established right to require the mortgagee first to exhaust the residue in the hands of the mortgagor before applying the parcel so conveyed; and, whether this right can be enforced only in equity or not, it is clearly a substantial interest in such residue, and one which it is the policy of the registry laws to protect. See Montgomery, v. Dorion, 6 N. H. 255; French v. Gray, 2 Conn. 108; 4 Kent, Comm. 456; Brown v. Manter, 22 N. H. 468.”
See 2 Jones, Mortg. (4th Ed.) § 1620.
When the defendant’s grantor purchased the three lots, the record did not disclose a sale to Miss Gray, and he had a right to assume that the mortgagee would resort to the land still standing in the name of Mr. Baker before selling the land purchased by him.
Counsel say:
“The mortgage contained the following provision: ‘With the privilege of having any lot released at any time on payment of $300 and accrued interest, with three months’ extra interest.’ Under this clause complainant was entitled to have her lot released at any time from the mortgage on payment of $300, and her lot should not be made liable to more than that amount on foreclosure of the mortgage, and any excess over that amount would have to be borne by the other lots, in any view of the case,” — citing Clarke v. Fontain, 135 Mass. 464.
It is doubtless true that complainant might have had her lot released from the mortgage by paying to the mortgagee $300, but she never sought tó do so. She waited nearly four years after the mortgage foreclosure before filing this bill, and it is not a part of the theory of the bill.
It is claimed there was paid to the bank about $70 extra interest, which was usury, and which should have been applied as a general payment on the mortgage debt. It has been repeatedly held that the defense of usury is a personal one, and may be waived. Sellers v. Botsford, 11 Mich. 59; Gardner v. Matteson, 38 Mich. 200.
The case is an unfortunate one for the complainant, but it is made so by her failure to put her contract upon record.
The decree is reversed, and the bill of complaint dismissed, with costs.
The other Justices concurred. | [
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Hooker, J.
The plaintiff’s son, 11 years of age, was driving a steady team before a wagon heavily loaded with lumber, upon which he sat. The plaintiff had left him a ■short time before to drive the team, while he should ride with a man employed by him in driving a similar team and load immediately in advance of that driven by the boy. At the place in the highway where the accident involved herein occurred, there was a culvert, which formed a part of the highway ditch in an intersecting road. There was a jog in the highway upon which these persons were traveling, which it is claimed made it necessary for the horses to begin turning before the wagon had passed the culvert. The boy was run over and killed at this spot, and it is plaintiff’s theory that he was shaken from the wagon by reason of an alleged abrupt drop of six inches from the top of the culvert to the roadbed. No one saw this accident, but it was discovered an instant later that the boy had been run over. He died soon after, and this action is brought by the father, as administrator, to recover damages. A verdict and judgment of $800 was rendered, and the defendant has appealed.
Error is assigned upon a failure to direct a verdict for the defendant upon the ground that there was no testimony showing how the accident occurred, and that it should not be ascribed to the defective culvert, in the absence of proof, and for the further reason that there was no proof that the deceased exercised due care. Error is also alleged on the refusal of the court to direct a verdict for the defendant upon the ground of the contributory negligence of the father, who noticed the defect when he crossed the culvert in the morning, yet permitted the son to drive over it in the evening without warning. Error is assigned, also, upon several rulings during the introduction of evidence, and upon the instructions relating to the rule of damages.
Defendant’s counsel cite several cases to the proposition that, where there is no evidence tending to show how an accident occurred, a jury should not be permitted to base a verdict upon speculation and conjecture. That doctrine should not be carried so far as to say that a jury may not base a verdict upon testimony fairly tending to show a probability, as in such instance the case would be beyond the realm of conjecture or speculation. The theory of the plaintiff is a plausible one. He showed a faulty condition of the culvert, and a situation of tracks and ditches that indicated a necessity for the horses to turn the wagon while its wheels were upon or back of the culvert, so that they could not pass squarely over it, whereby the wagon would naturally lurch violently. The first wagon to cross experienced this, nearly throwing the men from the load. The team was steady, and the boy accustomed to driving. The same testimony bore upon the question of the boy’s care. The natural conclusion from these circumstances is that the boy was not negligent. A minute before, his team was going steadily along in an orderly manner, under the guidance of its driver, and it stopped without evidence of fright soon after the boy was run over. It was proper to leave the entire subject to the jury. Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508).
The plaintiff testified that he noticed the dangerous condition of the culvert in the morning, and then forgot about it, and it is said that he was therefore guilty of contributory negligence in forgetting, and leaving the boy to drive over the bad place without warning. The court was requested to direct a verdict upon this ground. Instead of doing so, he gave the following charge upon the subject:
“ The father, who prosecutes this action, has a personal interest in any recovery here; consequently, if he was negligent on this occasion, which negligence contributed to the injury, there can be no recovery in this case. And in this connection you should consider the age of the boy, and the character of the load, and the father’s knowledge of the culvert, if any, and the boy’s experience, the time of day, and everything else in connection with the circumstances, and say whether it was negligence to permit this boy to drive alone over that culvert under the circumstances. The boy himself would only be chargeable with the ordinary care and prudence of an average boy of that age. As I say, the father has a pecuniary interest in this recovery, and if he was negligent, and his negligence contributed to the injury, then there can be no recovery.
“Mr. Bope: May it please the court, in regard to the consideration of the negligence of the father, we would like to have the jury instructed further that the prior knowledge of the defect in the cjilvert, coupled with the testimony of temporary forgetfulness of the defect, would not be proof of negligence.
“ The Court: Well, that instruction is probably nearly correct. Highways are constructed, and people, by their construction, are invited to travel upon them; and, although there may be defects in them, yet people are not prohibited by that fact from traveling over them. They are held to only reasonable care in traveling where there are defects. While you may take into consideration the fact, as this plaintiff testifies, that he drove over the culvert in the morning and noticed that there was a jolt or jar there, yet he would have a right to drive back over the same culvert, and the mere fact that he had forgotten it was there would not bar his recovery, if he was using ordinary care and prudence in driving at that time. His mere lapse of memory would not bar his recovery, but you may take the whole of the facts into consideration, and say upon the whole testimony and all the facts whether there was negligence upon his part such as would prevent his recovery.”
It was pot dark when the accident occurred, and it is not improbable that the boy saw the condition of the culvert. The court said, in effect, that they had a right to-drive over the culvert, and, if in doing so the boy was using ordinary care and prudence, the forgetfulness of his father, did not contribute to the injury. The request was properly refused; and, while he might have been asked to charge more fully on the subject of forgetfulness (see Bouga v. Township of Weave, 109 Mich. 523 [ 67 N. W. 557]), he was not, and the instructions given were not erroneous.
Several witnesses familiar with the locality and the use of wagons were allowed to testify that, in order to pass safely, it would be necessary for a wagon coupled for 16-foot lumber to begin turning while over or upon the culvert. Others acquainted with the boy were allowed to testify as to the value of his services. We think this testimony was competent, and that the witnesses showed themselves qualified to give opinions.
Some other points are raised, but we think further reference to them unnecessary. The cause was tried with fairness, and a clear and comprehensive charge was given.
The judgment is affirmed.
The other Justices concurred. | [
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Long, J.
This action is brought to recover for injuries received by the plaintiff, a brakeman, while engaged in uncoupling cars on defendant’s road at Flint on the evening of March 13, 1899. Plaintiff was about 30 years of age, and had had 10 years’ experience as a brakeman before going into defendant’s employ. He commenced work for the defendant about the middle of December, 1898, and worked continuously on the road between Saginaw and Plymouth, going out from Saginaw one day, and returning the next day, and generally on the return trip did switching where the accident occurred. He was the head brakeman, and the train was under his control. At the place where the accident occurred, the main track of the railroad extends north and south. On the east side of the main track is a side track running parallel with it. On the main track are two switches, from 25 to 28 feet apart. One leads to the north, connecting with the side track; the other leads to the south, also connecting with the side track. In the train upon which the plaintiff was working, five cars were to be taken out and run over the south switch, and placed upon the side track. These cars were uncoupled from the train, leaving the other cars, forming the rear of the train, with the caboose, on the main track south of the south switch. The train, with the five cars which were to be cut off, was moved forward north of the north switch, and then was backed down to go over the two switches, in order to leave the five cars on the side track south of the south switch. The conductor and the plaintiff were standing about a car’s length north of the north switch, on the east side of the track (that is, on the right-hand side of the train, looking towards the engine), and, as the train moved back to where they were, the conductor pointed out to the plaintiff the place in the train — between what cars of the train- — -the uncoupling was to be made. The plaintiff proceeded to do the uncoupling by going between the cars while they were moving at a speed of four or five miles an hour, and, in doing the work, he was run over by the cars and injured.
His statement as to the manner of the injury is that, when the conductor pointed out the place in the train at which the uncoupling was to be made, he was about a car’s length north of the north switch; that he immediately attempted to pull the pin and make the uncoupling, and in doing that ran along on the outside of the rail until near the north switch; then went inside, and got onto the brake-beam, and rode on it, trying to pull the pin, until he was past the.north switch; that he then got down onto the ground between the cars, and ran along at a slow trot between the rails, trying with his right hand to pull the pin, holding his lantern in his left hand, down near the pin; that the night was dark; that the two cars between which he was going were about three feet apart; that the bottom of the cars was about as high as his thigh; that, just before reaching the south switch, he got the pin out, and went to go from between the cars, and stepped his left foot into a hole beside the east rail, said hole being between the cars, and stumbled; that he tried to catch onto something upon the car ahead of him, but could not do so, and fell across the center of the track, and was injured so that he lost one foot, and one hand was badly hurt. It appears, further, from his testimony, that he did not see the hole into which he stepped, and that he is unable to locate it definitely, except that he says it was beside the east rail and between the switches, and was between the cars; that his feet went down into a hole when he stumbled; that this hole was 13 to 14 inches outside the rail of the main track.
Mr. Frank E. Penny was a brakeman on the same train that night. He testified that he found the plaintiff after the accident a few ties north of the south switch; that he was a few ties — maybe a tie or two — north of the switch; that he noticed the condition of the tracks; that he found cinders between the north and south switch; that it looked to him as if the sectionmen had been working on them; that they were excavating out there to a certain extent,— that is, north of the south switch; he did not know how many ties, but, anyway, six or seven or eight. Conductor McDowell testified upon this point that he saw the plaintiff stumble possibly 20 feet south of the north switch, not south of the south switch; that plaintiff was between the two switches.
The defendant introduced testimony tending to show that there were no piles of cinders there, and that the only excavation or hole on the main track was at the switch, where it was necessary to have a trench for the purpose of drainage; that the dirt and cinders were cleaned out from between the ties so that the switch could be moved. It is undisputed that it was necessary to maintain this condition between the ties at the place where the south switch was located, so that the bars of the switch could move backward and forward between the ties; that the unfilled space between the east ends of the same ties, and the trench to the east from those ties, were necessary for the drainage of the switch; and that these conditions were continuous.
The cause of the accident, as alleged in the first count of the declaration, was a hole or rut into which the plaintiff stepped, as follows:
“ At a point, to wit, 300 feet south of where Hursley street, in the city of Flint, crosses the main track of said company, and at the switch located at that point on said main track, where it became necessary for plaintiff to uncouple the said cars, and along the outside and next to the east rail of the main track of said switch, located as aforesaid, there existed a deep hole or rut, and piles of dirt and cinders at said point, and the same had existed a long time previous thereto, and plaintiff did not see the same; and, as the cars were uncoupled by him, plaintiff stepped out from between the cars so uncoupled, and into the hole, along the outside and under the east rail at the point aforesaid.”
The second count states:
‘ ‘ Said defendant carelessly and negligently allowed its road to be and remain out of repair for a long time, to wit, for a period of a year, prior to the happening of the injury "herein complained of, in that it allowed a large hole or rut, into which plaintiff stepped, and piles of dirt and cinders, as set out in the first count, to be and did remain close up to the outside of the rails, and between the rails, of said main track, for said period. And on the 13th day of March, when it became necessary to place said freight-train cars on the said side track as aforesaid, it became necessary for said plaintiff to go between two of said cars of said freight train to uncouple the same while in motion; and, just as said plaintiff had uncoupled said cars'from said train, he stepped out from between them and into said hole, close up to the outside east rail of said main track, and in the bed of said road, which was about six or eight inches in depth, and into which hole he stumbled, and fell across the main track, just where the side track connects with said main track.”
The court, in its charge to the jury, after stating the action of the plaintiff in going between the cars at the direction of the conductor, said:
“He claims that the hole that he stepped into was a short distance north of the south switch. It is further claimed by the plaintiff that there was a pile of cinders, dirt, gravel, or snow along the outside of the east rail of the track, and within a short distance of such east rail. * * * It is further claimed by the plaintiff that the cinders or ballast was taken from between the railroad ties just north of the south switch to a depth of three or four inches; that the ties at that point were one foot apart, and in some places not that distance, but that they were far enough apart so that a man’s foot could be caught between the ties; that those were the conditions as they existed on the main track. The plaintiff’s claim is that he did not consider it dangerous to make the uncoupling when the train was in motion, running at a rate of speed of from four to five miles an hour, as he knew nothing about a hole existing where he claims he was injured, but supposed it was a safe place to work, and that he did not in any way contribute to the injury.
“ The defendant’s claim is that at the point where the plaintiff claims he was injured, and between the two switches, there was no bole between the ties, on the outside or between the rails; that dirt, gravel, or cinders were filled in between the ties, and that the track was ballasted even with the ties, except at the split switch, where the dirt had to be taken from under the draw-bars between the ties so the switch could be operated; that a small ditch, about three inches deep and about one foot wide, extended from the ends of the ties near the switch to the rails on the west side, so as to drain the water off, so it would not freeze or obstruct the operation of the switch; that this drain was cleaned out, and the dirt carried away; and that there was no pile of cinders, dirt, snow, or ice either upon the east or west side of the track. It is further claimed that the way the plaintiff was injured was by his getting upon the drawbars between the cars, and that, when the cars were uncoupled, the plaintiff fell between them, and was injured; * * * and that, if he fell into a hole, it was at the split switch, and was thrown down, but was not thrown down by stepping into a hole north of the switch. These are questions of fact for you to consider, and not for the court.”
We think this was a fair statement of the controversy between the parties. The plaintiff claimed that the hole existed some little distance north of the south switch, while defendant contended that no hole existed there, and, if there was any hole at all, it was at the switch, and was necessary for its drainage.
But defendant’s counsel contends that the case which was presented for trial, and which defendant was called upon to defend, was an alleged defect in defendant’s road, which was distinctly described and identified by the declaration, but that by the charge of the court recovery was allowed for an entirely different defect. We think this contention cannot be sustained; but, even if there were a variance between the declaration and the proofs, we think the defendant cannot now be heard upon the objection it makes. The controversy between the parties during the whole trial was whether a hole existed north of the south switch. No objection was made by defendant’s counsel to the introduction of any evidence under the declaration. The case was tried on the theory that the declaration alleged that the hole existed at some distance north of the south switch. Defendant’s counsel was not taken by surprise on the. trial when the proofs were offered locating the hole into which plaintiff stepped as at some distance north of the south switch. Had counsel at that time raised the question of variance between the proofs and the declaration, the court undoubtedly would have permitted plaintiff to amend his declaration. Ross v. Township of Ionia, 104 Mich. 320 (62 N. W. 401); Grattan v. Village of Williamston, 116 Mich. 462 (74 N. W. 668).
Several requests were asked by the defendant in reference to the location of the hole, among which was the following:
“ If the evidence does not show that the plaintiff’s injury was caused by his stepping into a hole at that place [that is, a hole located outside of the east rail, at a switch leading from the main track of defendant’s road], the verdict should be for the defendant. The evidence must show the manner in which the plaintiff was injured, or there can be no recovery. The jury are not permitted to guess or conjecture as to the manner in which the plaintiff’s injury was caused.”
This request was refused, and the court charged the jury:
“It was the duty of the defendant to provide a reasonably safe place for the plaintiff to do his work in, and, if you find by a preponderance of the evidence in this case that the defendant failed to keep the track at the place where the plaintiff claims he was injured in a reasonably safe condition, then the defendant is liable, and your verdict should be for the plaintiff, unless you find that the plaintiff in some way contributed to the injury. * * * In determining the question of carelessness and negligence on the part of the plaintiff, the jury will take into consideration all the facts and circumstances proven, including the condition of the track between the two switches described by the witnesses at the place where the plaintiff claims that he was injured, and also what it is claimed he said to the other witnesses. * * * If you should find that the track north of the switch was not ballasted even with the top of the ties, or that there was an excavation or hole, as claimed by the plaintiff, he cannot recover, unless you further find that he was free from negligence; and he must satisfy you of these facts by a preponderance of the evidence. * * * But it is claimed by the plaintiff that he was not injured at the switch, and that the hole in which he claims his foot was caught, and threw him under the car, existed along the main track north of the switch. If this is true, then it was not a risk which the plaintiff assumed, and he is not precluded from recovery upon that ground, providing you find that he is free from negligence.”
We think there was no 'error in the refusal of the request, as the court fully explained the contentions of the parties.
Defendant’s attorney asked the court to charge the jury:
“The railroad company’s rules provided that, before exposing himself to danger, it was the plaintiff’s duty to examine the condition of all machinery, tools, cars, engines, or track that he was required to use in the performance of his duties, and to satisfy himself, so far as he reasonably could, that they were in safe working order, and that it was the plaintiff’s right and duty to take sufficient time to make such examination, and to refuse to obey any order which would expose him to danger. The rules further provided that entering between cars and engines in motion to couple or uncouple them should never be done except under favorable conditions, such as low rate of speed, absence of frogs, switches, guard rails, etc., and where good footing could be obtained, and then only when necessary. The evidence shows that Mr. Jarvis did not obey this rule, and the verdict should be for the defendant.”
The court charged the jury on this point:
“The defendant provided the plaintiff with rules for his guidance and direction, and it was his duty to follow the instructions given. One of these conditions is that it was the plaintiff’s duty to examine the condition of all machinery, tools, cars, engines, and track that he was required to use in the performance of his duty, and to satisfy himself, so far as he reasonably could, that they were in safe working order, and that it was the plaintiff’s right and duty to take sufficient time to make such examination, and to refuse to obey any order which would expose him to danger; and if you find from all the evidence in the case, and the surrounding circumstances, that the plaintiff did not take sufficient precaution in doing his work, he is not entitled to recover; but in considering these questions you are to take the surroundings as they were, and as they have been testified to by all of the different witnesses. Did plaintiff act as a prudent and a cautious man would under like circumstances? * * * The rules further provide that entering between cars and engines in motion to couple or uncouple them should never be done except under favorable conditions, such as low rate of speed, absence of frogs, switches, guard rails, and where good footing could be obtained, and then only when necessary. It is for you to determine, from all the evidence and circumstances in the case, whether the plaintiff violated the rules or not, keeping in. mind the rules that were offered in evidence and read to you; and, if you find that he did not, he is not precluded from recovery upon those grounds. Plaintiff was not compelled to enter between the cars to make this uncoupling from anything that the conductor might have said to him, as the testimony in this case shows that the train was under his direction when he attempted to make the uncoupling. It is for you to say, from all the testimony and circumstances in the case, whether he exercised that care and precaution that a prudent person would in uncoupling the cars as he did, and at the place he did.”
It is contended by defendant’s counsel that the testimony is undisputed that the plaintiff disobeyed these rules. If the plaintiff’s testimony and the testimony of his witnesses be true, that the hole existed outside of the rail of the track north of the south switch, and plaintiff was injured at that place, and not at the switch, as contended by defendant, we think the court was not in error in his charge in reference to these rules. It would have been negligence on the part of the company to leave a hole at the point in the track or roadbed where the plaintiff contends he was injured; and we think it was a question for the jury to determine whether, if the hole was at that place, the plaintiff was guilty of negligence in going between the cars while in motion at that rate of speed, and attempting to uncouple them. It would be no disobedience of the rules to enter there under the circumstances he related. He was an experienced brakeman. It was shown he- was accustomed to couple and uncouple cars in moving trains, if the other conditions were favorable. He had been accustomed to do switching over this track for several months, almost daily, and sometimes twice a day. He must have been familiar with the roadbed between these switches. The switches were from 25 to 28 feet apart. He had a right to believe that the company would keep its main track evenly ballasted between these switches, and he would have been in no more danger in running upon the ground between the switches, even though it was dark, if the company had discharged its duty, than he would have been in any other place- along the roadbed farther away from the switches. If he was injured at the switch,— that is, if the hole existed at the switch, and not at a distance from the switch, — the rule would be very different, and if he entered there it would have been a disobedience of the rules.
In Denver, etc., R. Co. v. Smock, 23 Colo. 456 (48 Pac. 681), it appeared that the plaintiff went before a train moving faster than a walk to make a coupling, and, observing that the link would not enter the drawhead, started to get out, when he was injured. A rule of the company required that employés “must be particular to notice the speed of the cars while moving, and, if at a dangerous rate, no attempt must be made to couple by getting between them.” Of this rule the court said:
“ It requires the utmost care in coupling or uncoupling cars, and directs employés to notice in particular the speed of the cars, and, if moving at a dangerous rate, they are not to attempt to couple them; but it leaves the question of what is a dangerous rate of speed to be determined by the employe.”
And so the rule in the present case does not prohibit the employé from entering between cars to couple or uncouple, but leaves him to judge of the favorable conditions, the rate of speed, and whether or not the footing is sufficient to warrant him in entering between them.
It is said that that part of the charge was erroneous where the court instructed the jury (using counsel’s punctuation):
“ It is for you to determine, from all the evidence and circumstances in the case, whether the plaintiff violated the rules, or not keeping in mind the rules that were offered in evidence and read to you; and, if you find that he did not, he is not precluded from recovery upon those grounds.”
That this is a distinct statement to the jury that if, from all the evidence and circumstances, they found that the plaintiff violated the rules, or did not keep them in mind, those facts would not preclude him from recovery; that this charge took the rules, and the observance of them, out of the case.
We think the learned counsel for defendant entirely mistakes the meaning of this charge. In the stenographer’s notes of the original charge a comma is omitted after the word “not,” making the sentence read as quoted by counsel, and which possibly might have the interpretation contended for by him; but with the punctuation more in accordance with grammatical construction, and in accordance with what was involved in the case, the sentence reads:
“It is for you to determine * * * whether the plaintiff violated the rules or not, [ you, the jury] keeping in mind the rules that were offered in evidence and read to you; and, if you find that he did not [violate the rules], he is not precluded from recovery upon those grounds.”
We think this is the most natural meaning, and that the jury could not have misunderstood it. So interpreted, there is no error in this charge.
From a careful examination of the whole record we are satisfied the case was fairly tried, and that no error of which defendant can complain was committed.
The judgment must be affirmed.
The other Justices concurred. | [
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] |
Montgomery, O. J.
This bill is filed by the complainant, as guardian of Isabelle Domling, for the purpose of setting aside a deed executed by complainant’s ward to Frank P. Domling on the 3d day of March, 1891. The facts, as they appear from the testimony, are that one Moritz Domling, the father of Isabelle and Frank P., was the owner of two pieces of land, — the one a homestead of 37 acres, and another piece of 18 acres. Isabelle Domling was an unmarried daughter, who appears, by all the testimony, to have been mentally incompetent to transact any business. On the 17th of January, 1891, a deed of the homestead was made to Isabelle Domling. This was recorded on the 19th of January, 1891. On the 3d of March, 1891, Moritz Domling conveyed to his son, Frank P., the 18-acre tract of land, and on the same date Isabelle Domling went through the form of conveying the homestead to Frank P., for an expressed consideration of $1, and the care and support of Isabelle Domling and • Morit Domling during their lives, and the payment of ' their funeral expenses; and the deed contained a proviso that said Frank P. Domling should “faithfully carry out and furnish the considerations above mentioned.” It appears that Moritz Domling died in 1892, and Frank P. Domling died in 1896. His wife, the defendant Barbara Wallrobenstein, succeeded to his interests in the property. She remained unmarried for a few years, and then remarried. Frank P. Domling cared for his father until his death, in 1892, and for Isabelle until 1896. Since the death of Frank P. Domling the defendant has continued to care for Isabelle until the appointment of complainant as guardian, in January, 1900. The circuit judge dismissed the bill of complaint, upon what ground does not appear.
It is the contention of the defendants that the deeds of January 17th to Isabelle and of March 3d from Isabelle to Frank P., as well as the deed of the 18 acres on the latter date to Frank P., are to be considered as one transaction. We do not see how the transaction can be so construed. There can be no doubt of the fact that a conveyance was made to Isabelle on January 17th, and the deed at once recorded. No further steps were taken until March 3d. The title had then vested in Isabelle, and a conveyance by one competent to make it was necessary to pass the title from her. This conveyance was never made.
Defendants further contend that there are, in any event, strong equities in favor of the defendants, and that a lien should be declared upon the property in their favor. But we think that Frank P. Domling and the defendants have received adequate compensation for what they have expended upon the property and upon the care of Moritz Domling and Isabelle. It appears that the father, in addition to the 18 acres of land conveyed to Frank P. Domling, gave him some money, variously stated at $140 and $175. It also appears that the complainant sent to Frank $300. The 18 acres of land passed absolutely to Frank P. Domling and his successors, and they have all the time had the use of the land. We are satisfied that, considering the work which Isabelle was able to do about the house and on the farm, and the very plain manner in which she was clothed and supported, there are no substantial equities in favor of the defendants.
The decree, therefore, will be that the deed be set aside. “We do not think, however, that the defendant Barbara should, in the first instance, have been charged with costs, as she assumed the responsibility of the situation, as it appeared to her, in good faith. No costs of the trial court will, therefore, he awarded to either party, but the complainant will recover costs of this court.
The other Justices concurred. | [
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Moore, J.
Complainant brought summary proceedings to recover the possession of a strip of land about four feet wide. It was her claim that Dr. McGurk was the owner of the south half of a lot, and she was the owner of the other half; that he desired temporarily to build a stairway upon her land, leading to the upper story of his building; that he agreed to1 remove it whenever she wanted him to do so; that he agreed to build a gutter to take care of the water, and would make it right for the use of the land; and that she consented to this. It was the claim of defendant upon the trial that he and his grantor occupied the property so long that the line cannot now be disturbed. It is the claim of counsel for defendant in their brief that “the sole question in the case was, Where is the boundary line between the north half and the south half of lot 4 ? and this question cannot be tried in this form of action; ” while counsel for complainant says the real question is, Did the grantor of defendant enter into possession of the land as the tenant of complainant ? The court below held that the question of title could not be litigated in this proceeding.
The following special questions were submitted to the jury, all of which were answered in the affirmative:
“1. Did Dr. McGurk in 1876 obtain possession of a strip of land 32 inches in width along the south line of the north half of lot 4, in block 1 north, of range 1 east, according to Walker’s plat of the village of Capac, from the plaintiff, as her tenant ?
“2. Before the stairway was built on the McGurk building, was the center line of lot 4 in question agreed to by plaintiff and Dr. McGurk,' and marked by a stake set by Dr. McGurk ?
“3. Did Dr. McGurk build a stairway on his building 32 inches north of the line agreed to by plaintiff ?
“4. After the stairway was built, did Dr. McGurk cut a notch in the door sill on a line with the stake, to mark said line ?
“5. Did Robert McGurk inform the defendant, before he deeded to him, that the stairway extended over on plaintiff ? ”
An inspection of the record shows there was an abundance of testimony to justify the findings of the jury. Where the relation of landlord and tenant has existed, the statute provides when summary proceedings may be commenced. 3 Comp. Laws, § 11164, and the many cases cited in the note. The court is not devested of jurisdiction simply because defendant pleads title. Butler v. Bertrand, 97 Mich. 59 (56 N. W. 342). If the proofs bring the case within the terms of the statute, the court retains jurisdiction. Butlero v. Bertrand, supra; Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32). We think the case was carefully and properly tried.
Judgment is affirmed.
The other Justices concurred. | [
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Taylor, J.
These cases present the issue whether the second sentence of MCL 691.1407(1); MSA 3.996(107)(1), which affirms governmental immunity as it existed before July 1, 1965, codified the “two-inch rule” regarding municipal liability for sidewalk defects despite this Court’s abolition of the two-inch rule in Rule v Bay City, 387 Mich 281; 195 NW2d 849 (1972). Because the two-inch rule is a negligence rule rather than a principle of governmental immunity, we hold that subsection 7(1) could not reinstate the two-inch rule. Regarding defendants’ alternative contention that this Court should adopt the two-inch rule as a threshold for lack of “reasonable repair” under MCL 691.1402(1); MSA 3.996(102)(1), we hold that such arguments are properly directed to the Legislature.
FACTS AND PROCEEDINGS
These two cases arise out of slip and fall accidents involving sidewalk defects of less than two inches. In Glancy, the portion of sidewalk at issue was between IV4 and IV2 inches higher than the surrounding sidewalk. In Ashton, the sidewalk portion at issue was between 1 and IV2 inches higher than the surrounding sidewalk. Defendants in both cases moved for summary disposition under MCR 2.116(C)(7) and (10), contending that subsection 7(1) reinstated the two-inch rule. In each case, the trial court granted defendant’s motion for summary disposition, concluding that subsection 7(1) codified the two-inch rule into Michigan law. In Glancy, the Court of Appeals reversed, concluding that subsection 7(1) only preserved pre1965 immunity for the state, not other governmental entities, i.e., municipalities. 216 Mich App 390; 549 NW2d 78 (1996). In Ashton, the Court of Appeals reversed on the basis of Glancy. Ashton v Hazel Park, unpublished memorandum opinion of the Court of Appeals, issued April 4, 1997 (Docket No. 182876).
STANDARD OF REVIEW
Appellate review of a trial court ruling on a motion for summary disposition is de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). “MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties.” Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992).
MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. The court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submit ted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. [Spiek, supra at 337.]
I. MUNICIPALITY LIABILITY FOR SIDEWALK DEFECTS
The governmental tort liability act, MCL 691.1401 et seq.) MSA 3.996(101) et seq., provides governmental immunity for governmental agencies, including municipalities like defendants here. “[T]he heart of the act, § 7, provides for broad immunity from tort liability for governmental agencies engaged in governmental functions.” Wade, supra at 166. “[Exceptions to governmental immunity are to be narrowly construed.” Id. MCL 691.1402(1); MSA 3.996(102)(1) sets forth the “highway exception” to governmental immunity. Subsection 2(1) states in pertinent part:
Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency.
Subsection 2(1) requires municipalities to maintain sidewalks in “reasonable repair.” Under the two-inch rule, sidewalk defects of two inches or less did not constitute a lack of “reasonable repair” as a matter of law. See Weisse v Detroit, 105 Mich 482, 483, 487; 63 NW 423 (1895); Harris v Detroit, 367 Mich 526, 528; 117 NW2d 32 (1962). In 1972, Rule, supra, abolished the two-inch rule.
H. AFFIRMATION OF PRE-1965 GOVERNMENTAL IMMUNITY
Subsection 7(1) of the governmental tort liability act, as amended in 1986, provides:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
The second sentence of subsection 7(1) “retains preexisting governmental immunity law except where provided otherwise in the act” and mandates an historical approach. Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 147, 170; 422 NW2d 205 (1988).
By its terms, this provision of subsection 7(1) applies to “the state.” MCL 691.1401; MSA 3.996(101) provides distinct definitions of “state” and “municipal corporation” and defines “governmental agency” to include both. In the context of the first sentence of subsection 7(1), which uses the term “governmental agencies,” the use of the term “the state” in the second sentence might be read to indicate that this provision applies only to the state, not to governmental agencies generally.
However, in Li v Feldt (After Remand), 434 Mich 584, 592-593, n 8; 456 NW2d 55 (1990), which involved tort liability of municipalities, this Court stated that § 7 should be read to put “all agencies of government on the same footing with regard to tort liability.” This Court noted that the stated purpose of the governmental tort liability act is to “make uniform the liability of municipal corporations, political subdivisions, and the state . . . when engaged in the exercise or discharge of a governmental function.” Id. In Hadfield, supra at 168-169, which involved actions against a county and municipality as well as the state, this Court recognized a trespass-nuisance exception to governmental immunity on the basis of the historical approach mandated by § 7. These authorities indicate that the second sentence of subsection 7(1) applies to all governmental agencies, not just the state, despite the use of the term “the state” in this provision.
The present case does not require this Court to reconsider whether these authorities accord with the statutory language of subsection 7(1). Rather, this Court may assume, without deciding, that this provision of subsection 7(1) applies to municipalities because this provision would not affect the two-inch rule.
ID. WHETHER THE TWO-INCH RULE IS A GOVERNMENTAL IMMUNITY PRINCIPLE THAT SUBSECTION 7(1) WOULD AFFIRM
Here, defendants contend that the second sentence of subsection 7(1) mandates the continued application of the two-inch rule despite this Court’s abolition of it in 1972. The basis of the two-inch rule is the concept of “reasonable repair.” The highway exception, subsection 2(1) of the governmental tort liability act, subjects governmental agencies to liability when they fail to maintain highways in “reasonable repair.” The two-inch rule was a bright-line rule stating that defects of two inches or less constituted “reasonable repair” as a matter of law.
The roots of the two-inch rule can be traced to Weisse, supra, which involved injuries allegedly arising out of a defective crosswalk. The Weisse Court noted that, in 1887, the Legislature amended the statute, imposing a duty on municipalities to maintain highways so that it required “reasonable repair” rather than “good repair” and imposed a duty that streets be “reasonably safe,” not absolutely safe. 105 Mich 486-487. The Weisse Court concluded that the street at issue was reasonably safe despite the alleged defect of approximately two inches and held that the trial court should have given the defendant’s request to charge that “as a matter of law that no such defect existed as authorized a recovery.” Id. at 483.
In Rule, supra at 283, this Court abolished the two-inch rule:
[W]e will no longer hold as a matter of law that a depression or obstruction of two inches or less in a sidewalk may not be the basis for a municipality’s liability for negligence.
In abolishing the two-inch rule, the Rule Court relied on Justice Adams’ dissent in Harris, supra. Justice Adams stated that the two-inch rule “gradually hardened into a rule of law that where a defect in a walk was less than 2 inches in depth, the walk would be considered to be safe and the city free from negligence.” 367 Mich 531 (emphasis added). He agreed with Colorado authority indicating that it is improper to determine “actionable negligence” by an arbitrary measurement and concluded that the facts and circumstances of each case must be considered to deter mine if there is an issue to submit to the jury regarding whether the defendant is negligent. Id. at 535-536.
As this Court has previously noted, tort actions against governmental agencies generally raise two separate issues: 1) whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity, and 2) whether the plaintiff can establish the elements of a negligence action. Whether a defect is over two inches bears on the issue of negligence, i.e., whether the municipality failed to keep the sidewalk in “reasonable repair.” The cases applying the two-inch rule as well as those abolishing it indicate that the two-inch rule barred recovery because a plaintiff would be unable to prove actionable negligence, i.e., lack of “reasonable repair,” rather than because a municipality was govemmentaily immune from liability for defects of two inches or less. Thus, the two-inch rule was not a rule of common-law immunity; rather, it was a common-law threshold for negligence based on the “reasonable repair” standard of care of the statutory highway exception.
The two-inch rule’s relationship to the statutory highway exception distinguishes it from common-law principles of immunity like the trespass-nuisance exception recognized in Hadfield, which are properly the subject of the second sentence of subsection 7(1). By its terms, this provision of subsection 7(1) affirms pre-1965 common-law immunity that is not addressed by the governmental tort liability act. There is no need to resort to pre-1965 common law with respect to the statutory exceptions explicitly set forth in the act. For these reasons, subsection 7(1) would not resuscitate the two-inch rule after this Court abolished it in Rule.
Moreover, even with respect to immunity principles, subsection 7(1) does not preserve governmental immunity law in a time capsule as of July 1, 1965. Subsection 7(1) states that the act “shall not be construed as modifying or restricting” immunity as it existed before July 1, 1965. But this provision does not prohibit this Court from reconsidering and amending or abolishing pre-1965 precedent regarding governmental immunity. In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 609; 363 NW2d 641 (1984), this Court reiterated that “ ‘to read the second sentence of [subsection 7(1)] as “preserving for all time state governmental immunity heretofore recognized by case-law” would be to “assume that the Legislature failed to recognize that the evolution of case law precedent is exclusively committed to the judicial branch of government.” ’ ”
IV. WHETHER TO ADOPT THE TWO-INCH RULE UNDER SUBSECTION 2(1)
Alternatively, defendants argue that even if subsec tion 7(1) did not codify the two-inch rule, this Court should adopt the two-inch rule as a threshold for lack of “reasonable repair” under subsection 2(1). In support of adopting the two-inch rule, defendants cite the great expense to municipalities of defending lawsuits for injuries arising out of sidewalk defects of two inches or less. The Legislature, with its ability to consider testimony from a variety of sources and make compromise decisions, is much better positioned than the judiciary to consider such policy arguments and make policy choices. “The responsibility for drawing lines in a society as complex as ours — of identifying priorities, weighing the relevant considerations and choosing between competing alternatives — is the Legislature’s, not the judiciary’s.” O’Donnell v State Farm Mut Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979). “Under the Michigan Constitution and its division of power between the Legislature and the judiciary, [the judiciary is] only authorized to implement statutes, not change them in response to policy arguments, regardless of how persuasive.” Miller v Riverwood Recreation Center, Inc, 215 Mich App 561, 563; 546 NW2d 684 (1996). In other words, while the judiciary has authority to formulate policy regarding common-law issues, which could include adopting a bright-line rule, it may not adopt rules that change statutes on the basis of policy arguments. Rather, the judiciary’s role in determining the policy behind a statute is to attempt to determine the policy choice the Legislature made. In subsection 2(1), the Legislature set forth a duty of “reasonable repair.” Policy arguments regarding adoption of a bright-line rule that defects of two inches or less do not constitute a lack of “reasonable repair” under subsection 2(1) should be directed to the Legislature. Moreover, even if we were to consider these policy arguments, they would be unavailing because defendants fail to meet the great burden incumbent upon them to overcome the presumption in favor of the validity of our past holding in Rule. See Brown v Manistee Co Rd Comm, 452 Mich 354, 365-366; 550 NW2d 215 (1996), regarding stare decisis.
CONCLUSION
For these reasons, we affirm the Court of Appeals decisions in both Glancy and Ashton. While we agree with the result in both cases, we analyze the issues differently than did the Court of Appeals. The two-inch rule is a rule of negligence, not a common-law principle of governmental immunity that the second sentence of subsection 7(1) would codify. Policy arguments in favor of adopting the two-inch rule as a bright-line threshold for lack of “reasonable repair” under subsection 2(1) should be addressed to the Legislature.
Mallett, C.J., and Brickley, Boyle, and Weaver, JJ., concurred with Taylor, J.
This Court articulated the two-inch rule as “a depression in a walk which does not exceed 2 inches in depth will not render a municipality liable for damages incident to an accident caused by such depression.” Harris v Detroit, 367 Mich 526, 528; 117 NW2d 32 (1962).
Subsection 2(1) specifically states that the duty of the state and counties to maintain highways does not include “sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.”
See, e.g., Canon v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988) (“Courts should take care not to confuse their separate inquiries into immunity and negligence”).
In further support of the proposition that the two-inch rule bears on negligence rather than governmental immunity, the Ashton plaintiff notes that this Court has at least considered the two-inch rule in the context of actions against nongovernmental defendants. See Crowe v Michigan Central R Co, 142 Mich 692; 106 NW 395 (1906); Sherman v Consumers Power Co, 199 Mich 543; 165 NW 844 (1917). The Ashton plaintiff also notes that Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), abolished common-law governmental immunity for municipalities. That it was still necessary for this Court to abolish the two-inch rule in Rule in 1972, after Williams, indicates that the two-inch rule is a rule of negligence, not a principle of immunity.
The version of subsection 7(1) applied in Ross affirmed immunity “as it existed heretofore”; in 1986 this portion of the statute was amended to “as it existed before July 1, 1965.”
An example of the adoption of a bright-line rule by statutory presumption is MCL 257.625a(9); MSA 9.2325(1)(9). | [
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Cooley, J.
None of the objections made to the proceedings to condemn land in this case appear to us well taken.
The oath of the jurors is not to be construed by itself, but as a part of the proceeding in which it was taken; and so construed, everything the statute requires is there in substance if not in form.
The report of the jury was correct in awarding an undivided sum to the two claimants. The petition treated their interest as joint; they appeared jointly, and jointly demanded a jury. Their own action precludes them from insisting that their interests should have been separately regarded.
There is no defect in the finding that the land was required for the public use. The jury report specifically on that point, and meet fully the objection held to be fatal in The Mansfield &c. Railroad Company v. Clark, 23 Mich., 523.
The petition we think sufficient in form and substance; and the want of publication of notice to owners and parties interested cannot be insisted upon where all concerned voluntarily appear.
Proceedings affirmed.
Graves, Ch. J., and Campbell, J., concurred.
Christiancy, J., did not sit in this case. | [
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] |
Graves, J.
Desborough prosecuted Henderson in replevin before a justice of the peace, and in his affidavit made to obtain the writ be described the property in question as a cow and heifer, and alleged them to be of the value of ninety-nine dollars, and not exceeding in value one hundred dollars.
The writ being issued on such affidavit, the cattle were seized upon it and delivered to Desborough. On the return day of the process, Desborough appeared and declared in the usual form, aud alleged the value of the property to be ninety-nine dollars, and his damage on account of the detention twenty-five dollars. And Henderson thereupon pleaded the statutory general issue.
On a subsequent day, and before another justice to whom the canse had been transferred, the parties appeared and? proceeded to try the issue so formed by the pleadings. Desborough testified in his own behalf, and produced some other evidence, and then-rested. And it having appeared from his testimony that the cattle were worth one hundred and fifteen or one hundred and twenty dollars, and more than one hundred dollars, the justice, on Henderson’s motion, adjudged that the value of the property exceeded the jurisdiction, and that the cause should be dismissed therefor.
Thereupon Henderson waived return of the property, and the justice received evidence upon the value, and gave judgment in favor of Henderson and against Desborough for one hundred and forty dollars, besides costs, which were taxed at five dollars and eighty-nine cents.
Desborough subsequently removed the cause by certiorari to the circuit court, and assigned for error that the justice erred in holding that his jurisdiction to try the case on the merits was excluded by the circumstance that the plaintiff’s testimony showed that the property was of greater value than one hundred dollars, and also assigned for error that the justice erred in giving judgment against the plaintiff for an amount exceeding one hundred dollars, in, replevin.
The circuit court reversed the judgment, and Henderson has brought the case here on writ of error, and now insists that the justice decided rightly when he refused to try the issue joined upon the merits after the testimony of the plaintiff that the property was worth over one hundred dollars, and that he also decided rightly when, after holding that he lacked jurisdiction to investigate the merits, he proceeded to give judgment for the defendant for more than one hundred dollars.
If the justice erred on either of the points mentioned, then the judgment of reversal by the circuit court was-correct, and must be affirmed. We think it very clear that the justice did err in holding that the showing by the plaintiff’s testimony on the issue joined, that the property was worth more than one hundred dollars, took away his jurisdiction to proceed with the case on the merits. The counsel for plaintiff in error admit that the affidavit, writ and declaration gave the justice jurisdiction of the parties and the subject matter up to the time of trial, but he contends that as it then appeared, from the plaintiff’s testimony, that the value of the cattle exceeded one hundred dollars, the justice was ousted of his jurisdiction by the plaintiff’s own showing.
We cannot accede to this view. It is undoubtedly true that the justice obtained jurisdiction as admitted by the counsel for plaintiff in error; but we think that the fact that the plaintiff in replevin testified that the property was worth more than one hundred dollars, did not divest tfie jurisdiction.
The right of the justice to proceed in the case, and dispose of it upon the merits, so far as any objection founded on the value of the property was concerned, was complete when the parties proceeded to trial upon the general issue, if not before. The question of jurisdiction, as depending on the value of the property, if not closed by the affidavit for the writ, was certainly not open under the general issue.
That plea was to the merits, and by putting it in and going to trial upon it without objection, the defendant admitted the authority of the justice to investigate the merits. The justice therefore erred in holding that his right to try the case was determined, and in giving judgment for the defendant in replevin on that ground, and as a consequence the judgment of reversal in the court below was correct.
This conclusion would excuse any inquiry as to whether the justice, if the case had been so circumstanced as to justify a judgment against the plaintiff for the value, would have been authorized to give one beyond one hundred dollars. Still, in view of the circumstances of the case, and of the doubt which, it seems, hangs over the point, •we deem it expedient to state our opinion that whenever,, in replevin before a justice, the defendant becomes entitled to recover for the value of the property taken from him on the writ at the instance of the plaintiff, the judgment for the value and for damages in the aggregate may, in consequence of the statutory terms in which the general jurisdiction is given (Comp. L., § 5249), and the special and exceptional provisions regulating replevin (Comp. L., § 5291 and the four following sections, also Comp. L., §§ 6758, 6759),. be rendered for the real amount, whatever it may be, proved by the evidence, and not exceeding the limit fixed by the constitution, which is five hundred dollars. — Const., Art.. 77, § 18.
If therefore the justice had committed no error in his earlier ruling, his judgment could_ not have been reversed for being above his jurisdiction. But as he was wrong in holding that he lacked power to try the ease on the-merits, the reversal was correct, and must be affirmed, with costs.
Campbell and Cooley, JJ., concurred.
Christiancy, Ch. J., did not sit in this case. | [
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] |
Christiancy, Ch. J.
This was a bill to remove a cloud from the complainant’s title to one hundred and sixty acres of land in Ingham county. The title, and the facts affecting it, as shown by the evidence, were as follows: Cornelius (Jadwell, being then a minor, purchased the land at the United States Land Office, December 23, 1848, and on the 5th day of October, 1850, while still a minor (and only twenty years old in July of that year), sold and conveyed the land to George A. Wallace, for the consideration of one hundred and twenty-five dollars, as stated by Cadwell, who says only one hundred dollars of it was paid, or for from one hundred and twenty-five to one hundred and fifty dollars, as stated by Wallace, who says it was all paid, by a horse and cow, and the balance in money. Shortly after the execution of the deed, in the spring of 1851, and while yet a minor, Cadwell left the state and went to California, and thence to Central America, and did not return to this state until the latter part of August, 1857.
In the mean time, Wallace, on the 28th day of October, 1850, conveyed the land to one Phoebe Ann Skidmore, who, on the 14th of September, 1853, conveyed the same to one Charles Koegel, who was in possession of the land when Cadwell returned from Central America in 1857. In November, 1857, Cadwell, then living in Washtenaw county, some eighteen or twenty miles from the land, went and saw Koegel, informed him that at the time he made the deed to Wallace he was a minor, and that the deed was not good; but offered to give him a deed for seventy-five dollars in money. Koegel offered to pay him that amount in,stock, which Cadwell refused, and Koegel said he would have the money the next May. Cadwell again called upon Koegel the next May for the money; but Koegel then refused to do any thing about it, claiming that his title was good, whereupon Cadwell, as he testifies, caused a notice of ejectment to be served upon Koegel. Nothing further, however, appears then to have been done. In the winter of 1859 or 1860 Cadwell went and resided at Leroy in Ingham county, within two miles of the land, where he seems to have resided till the latter part of 1864 or the spring of 1865, when he removed to Williamston, in Ingham county, whence, in the spring of 1865, he was drafted into the army, and returned in September, 1865.
Some time between 1857 and 1865 (the exact date does not appear), Koegel died, leaving, as we infer from the evidence, a tenant in possession, who had gone in previous to his death. While Cadwell was in the army he was informed that this tenant had left the land and the premises were vacant, and he thereupon authorized one Lewis Haviland, the son of Lewis J. Haviland, next mentioned, to take possession of the land for him; which he did, and continued in possession until June 1st, 1865, when Cadwell sold and conveyed the premises by warranty deed do Lewis J. Haviland, who took possession under his deed and remained in possession until December 17th, 1867, when he sold and conveyed the premises to complainant, who took and holds possession under his deed.
On the third day of November, 1865, some five months after Cadwell had conveyed to Haviland, and while the latter was in possession, the administrator on the estate of Koegel, in pursuance of a license from the probate court, sold the land, or the interest of the deceased therein, to the defendant Wiley, and the report of the sale by the administrator to the probate court (which was confirmed), states, among other things, that there was an adverse claim to the premises sold to said Wiley, and that another party claims to hold the same.
' The amount of the improvement upon the land was small, being only about or a trifle over twenty acres, some of which was imperfectly cleared, and the buildings poor and of little value. Whatever of improvement there was upon the land seems to have been mostly made by Keogel, while Cadwell was absent in California and Central America, and if any were made after his return, they were made, so far as the case shows, after Koegel had received notice from Cadwell that he repudiated the deed, or did not intend to be bound by it. And there is no evidence in the case tending to show that Cadwell stood by, after his majority, when improvements were being made upon the land, without objections or notice, or that he was ever aware of any improvements going on upon the land. In our view, therefore, the case is disembarrassed of auy question of estoppel upon this ground; and the only question in reference to the validity or effect of the minor’s deed, is whether his neglect to make an actual disaffirmance of the deed, by entry or conveyance, until the time he undertook thus to disaffirm it, did, under the circumstances of this case, operate as an affirmance or confirmation of the deed executed during his minority; for, though the question has sometimes been raised whether the conveyance to another person after becoming of age, would, without entry, operate as a disaffirmance, there was here both an actual entry and a conveyance, which clearly operated as a disaffirmance, unless the delay which had previously occurred amounted to an affirmance, and cut off the right to disaffirm.
Upon this question of the affirmance of a deed executed during minority, by mere lapse of time, or in other words, by mere silence or acquiescence for any particular period of time, after the minor has attained his majority, it is sufficient, without citing and analyzing authorities, to say that, by the great weight of authority, both English and American, such delay or acquiescence, without any affirmative act indicating an intention to affirm, or tending to mislead the grantee into a belief of such intention, or any circumstances of equitable estoppel, such as standing by and seeing improvements made or money expended, or a sale of the property to another, without asserting his claim (or some such special circumstance), will not operate as an affirmance or confirmation of the deed executed during minority, nor prevent the minor from disaffirming it and reclaiming the land at any time allowed him by the statute of limitation for bringing an action. The question, in such a case, is substantially but a question of the time within which an action may be brought; and the legislature having fixed the time which to them seemed reasonable for this purpose, it is not within the power of the judiciary to change it. But when facts exist which create an equitable estoppel, as above intimated, or some other special circumstances such as are above alluded to, so that ■the question ceases to be one merely of the length or lapse of time, it, may perhaps be very proper to hold, as many cases have held, that the infant should manifest 1m purpose to disaffirm within a reasonable time: and what should be held to be a reasonable time, might depend much upon the special circumstances of the particular case.
This distinction reconciles nearly, though not quite all of the decisions upon this subject.
In the present case, we can discover no grounds of equitable estoppel and no such special circumstances as can properly be held to change the question from that of simple delay or lapse of time in disaffirming the deed; and we must therefore hold that Cadwell had the right to disaffirm, to re-enter upon the land and to convey to Haviland; and that the complainant therefore obtained and holds the title, and is entitled to the relief he asks to remove the cloud created by the administrator’s deed to the defendant.
But the complainant stands only in the place and succeeds only to the rights of Cadwell, who, while a minor, had conveyed to Wallace; and the defendant occupies the place and is entitled to the equities to which Wallace would have been entitled, had he not conveyed and Cadwell had sought to disaffirm the deed and convey the propertjr. Neither complainant nor defendant has obtained any other rights or equities than would have existed between Cadwell and Wallace. And as the privilege of infancy is a shield for the protection of the infant, and not a weapon of attack, nor to be used as an engine for defrauding others, and he cannot, therefore, especially in a court of equity, be allowed to disaffirm and repudiate his deed and regain the property, • without restoring the consideration he had received for it (there being no evidence of bad faith in Wallace in making the purchase). And as the complainant, standing in his place and clothed only with his rights, is compelled to ask the aid of the court of equity to remove the cloud upon his title, he should, I think, as a condition of that relief, consent to do equity to the other party. — Hillyer v. Bennett, 3 Edw. Ch., 222; Locke v. Smith, 41 N. H, 346; Strain v. Wright, 7 Geo., 568; Bailey v. Barnberger, 11 B. Monroe, 113; Weed v. Beebe, 21 Vt., 495; 2 Kent’s Com., 240.
But upon this point my brethren clo not concur in laying down the principle thus broadly, though my brothers Cooley and Graves concur in the result upon this point in the present case, on the ground that complainant makes no objection to the allowance to defendant of the amount of the consideration, and by implication admits its justice in the present case, while my brother Campbell thinks the principle inapplicable, even upon this ground, without the clear and express assent of .complainant, in a bill like this, to quiet title.
What was the amount of the purchase price, whether one hundred and twenty-five dollars or one hundred and fifty dollars, is left uncertain hy the evidence. But as part of it was paid in property and part in money, we think it safe to call it one hundred and twenty-five dollars. And though there is a discrepancy between the testimony of Cad well, on the one _ side, and Wallace, on the other, whether the whole amount had been paid, the former saying there ivas twenty-five dollars unpaid, and the latter that the -whole price was paid, there is reason to suspect that Cadwell merely set up the want of payment, as an excuse or-apology for repudiating his deed; and upon this point we are inclined to believe the testimony of Wallace, that the whole consideration was paid. This one hundred and twenty-five dollars, with interest from October 5th, 1850, should therefore be refunded by the complainant to the defendant.
A decree of this court should therefore be entered affirming the decree of the court below in favor of the complainant, on condition that complainant, within sixty days from this date, pay to the defendant the said sum of one hum dred and twenty-five dollars, and with interest to the day .of such payment; otherwise that complainant’s bill be dismissed, with costs to defendant.
The other Justices concurred. | [
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] |
Cooley, J.
Of tbe errors assigned on this record several relate to the admission of evidence which the defense in the court below insisted was immaterial. We bave considered each of their objections in the light of the argument that has been made here, and are of opinion that no incompetent evidence was received which could bave. prejudiced the defense. And while we agree' that the erroneous reception of evidence is presumptively injurious, yet when the cases are so numerous in which the distinction between that which is admissible and that which is not is faint and shadowy, it becomes absolutely necessary in the administration of justice that an appellate court should guard against being over nice and technical in reviewing the decisions of the circuit courts on the reception of testimony, especially when to all appearance the rulings were harmless. Otherwise a cause may be kept for an indefinite time passing from the circuit to the supreme court on writ of error,' and back again for new trials, because those courts happen not precisely to agree on some of the numerous questions of evidence which may arise, and which, decided either way, it can be seen would not be likely to influence a decision on the- merits.
The objection that the daughter of the plaintiff was allowed to testify to the value of articles burned, without having been shown to possess the proper knowledge to qualify her to speak as an expert, was not well taken. She testified that she bought a good many of the articles, and was present when others were bought. On this evidence she had some knowledge of values which it was proper she should communicate to the jury. The extent of that knowledge, and its sufficiency as a basis for a verdict, were to be tested by her examination, and by the good sense and judgment of - the jurors.
The most important questions in the case relate to the existence of other insurance. The policy in suit contained a. provision that it should be void if the insured should have or procure any other insurance on the property without consent of the defendants endorsed on their policy. It was undisputed that the husband of the plaintiff had previously obtained in his own name an insurance on the same property in the Genesee County Farmers’ Mutual Fire Insurance Company, which had not been surrendered or cancelled at the time insurance by the defendants was applied for, and was not noted on the policy. The plaintiff claimed, however, that this previous insurance was void, because the husband was not the owner of the property, and also because the Genesee company, by their articles, were prohibited insuring city property, which this had . become by an enlargement of the boundaries of the city of Flint since it was obtained. The plaintiff also claimed that this insurance was actually cancelled before the other was obtained, and gave evidence to that effect. The defense, on the other hand, produced testimony that the cancelment took place the day after their policy was issued, and they claimed that there was evidence from which the jury might infer that the husband, in taking the first policy in his own name, acted with • the authority and as agent of the plaintiff, and that she relied upon it as a valid insurance, so that all the evils and temptations designed to be guarded against by the condition against double insurance would exist in the case to the same extent as if the first policy had been valid in fact. And they claimed the right to go to the jury on this theory.
We are not satisfied that the defense did not have the full benefit of this theory before the jury, but we do not pause to demonstrate this, because we think it unimportant. The undisputed facts are that while the second insurance was being negotiated, both parties were aware of the exist- . ence of the prior policy, and it was a part of their understanding that it should be cancelled. It was cancelled in fact, but whether before or after this second policy was delivered, is the disputed point. The most that the defense can claim is that it was not_ cancelled until the following day. Their witness was the secretary of the Genesee company, who testifies that plaintiff’s husband came to him with the second policy, and asked him to look it over to see if it was good, expressing a purpose to have the first policy cancelled if it was; and on being told it was, the cancelment took place. At this time it is conceded that the premium on the second insurance had not been paid. Now the defense were entitled to have the jury draw any legitimate inference from this evidence; but we have been unable to discover that it tends to show any purpose on the part of the plaintiff to hold the two insurances in force at the same time. On the contrary, all the evidence on both sides shows that it was not only fully understood and agreed that the first insurance should (be cancelled if the second was taken, but that this understanding was carried into effect by an act which, if not actually before the manual reception of the second policy, was substantially contemporaneous. The cancelment of the first policy, under the circumstances, was one of several steps which were to be taken to complete the second insurance, and whether taken a few minutes or a few hours before or after any other step necessary to effect a completed contract, was immaterial, if all were taken substantially at the same time, and before the transaction was considered closed. In this ease there was no delay between the several steps which indicated that the plaintiff considered the transaction closed, before the surrender of the first policy; but on the contrary, the evidence most favorable to that view, only showed ° that plaintiff’s husband delayed the cancelment until the second policy could be shown to an expert for his- opinion upon its provisions. There was nothing unusual or suspicious in this, and the inference is that plaintiff did not consider herself as having finally accepted delivery of the policy before taking this step to satisfy herself that it gave her the protection she was seeking.
Further exceptions relate to a policy subsequently applied for by plaintiff’s husband in her name in the Hartford Fire Insurance Company, notice of which was not given to the defendant. It appears by the evidence on both sides that such a policy was made out by an agent of the Hartford company, and was taken from his office by Mr. Horton. The premium was not paid, and it is left uncertain on the evidence whether it was or was not countersigned by the agent. No written application had been made for it by the plaintiff or her agent, as was customary. Both Horton and the agent testified that it was never delivered, and the former claimed to have taken it in order to submit it to an examination by an attorney. It bore date four or five days before the fire, and was not .returned to the agent until the morning after that event. Although all the direct evidence was to the effect that this policy was never understood to have been delivered, defendants insisted that there were circumstances which indicated the contrary, and that the jury might reasonably conclude that the plaintiff’s husband, as her agent, had obtained and held it as valid insurance, and only surrendered it in order not to lose the benefit of the policy in suit.
The circuit judge correctly charged the jury that the provisions of the policy in regard to other insurance are a part of the contract, with which, if material, the plaintiff must comply, and with which if the jury are satisfied she did not comply, she cannot recover. Also, that to make a valid delivery of a written contract, the one party must deliver it intending that it should take effect as his contract, and the party receiving it must accept it as a binding contract to take effect on its acceptance. On the question of the authority of plaintiff’s husband to procure insurance for her, he was requested to charge that if Horton was the agent of the plaintiff, authorized to transact her business generally, as well insurance as other business in the care and management of the plaintiff’s property, he would be authorized to obtain insurance on her property without her special or direct assent or direction. This request was granted with a modification effected by the insertion of two words only, as follows: That if he was the general agent of the plaintiff, authorized to transact all her business, etc. This modification was excepted to. It is true that the instruction given in that form contained an element of error, inasmuch as, by implication at least, it required something more than authority in the husband to effect insurance for his wife, to warrant his doing it without her special assent or direction. But the instruction requested contained precisely the same error, for that also assumed that to authorize the husband to act in the particular case without special assent or direction, he must have the powers of general agency in addition to the power to effect insurance. But though both were in this particular inaccurate and self-contradictory, we find it impossible to convince ourselves that men of ordinary intelligence, which jurors must be supposed to be, could have been misled by either. But if they could be, the fault in this case rests rather with the defense, in making such a request, than with the court in carelessly following, and perhaps making more prominent by the modification, the erroneous implication. Had the defense requested a distinct instruction that if the husband was authorized to effect insurance for the wife, he might do so without special direction or assent, it is not likely the request would have been denied; and a request for instruction that if he were her general agent he would have the like authority to insure her property, would have been equally proper and correct; but to couple the two as necessary elements in the authority to insure for her without special direction or assent was to suggest an error which the court seems inadvertently to have fallen into. We are not disposed to reverse the judgment for an error thus originating, especially when we cannot think it likely to mislead. The record does not show that the request as made was read in the presence of the jury, and if not they could not be misled by having their attention directed to the modification made. We can draw no inference either way on this question of fact.
There was evidence in the case that previous to the making out of the Hartford policy an attempt had been made to burn the house insured, and there was testimony both ways on the question, whether this fact was communicated to the agent of the Hartford company. The defense requested the judge to instruct the jury as follows:
“If the plaintiff recognized and regarded the Hartford policy as valid at the time of the loss, and the same had been taken by the agent, whether by previous direction or subsequent assent of the plaintiff, or within the scope of his authority, without notice to the defendant, the fact that said Hartford policy was voidable merely by proof of some extrinsic fact not appearing on the face of the policy, will not have the effect to destroy its character as additional insurance, but possession of the Hartford policy by plaintiff, or her agent with her consent, plaintiff supposing it to be valid and subsisting insurance, would vitiate the policy in suit, and plaintiff cannot recover.
“If the jury are satisfied that notice of the attempt to fire the building was brought to the attention of the agent who issued the Hartford policy, before he issued the same, and that such notice was sufficient to put him upon inquiry, the Hartford company will be charged with notice of such attempt, and the policy cannot be held void in this suit for want of notice.
“ The question of the concealment of the fact of a former attempt to burn the building, from the agent of the Hartford company, is a fact to be pleaded by the Hartford company, and being a fact extrinsic of and not appearing on the face of the policy, cannot avail the plaintiff in this action to divest the Hartford policy of the character of additional insurance, if said Hartford policy was regularly issued and accepted by the plaintiff.”
All these requests were refused. And however correct they may have been as abstract propositions, we think they were correctly refused, unless the plaintiff was relying on some extrinsic fact to defeat the Hartford policy. The record does not show that such was the fact. That being so, the defense had no interest in suggesting possible infirmities in the Hartford policy, which the plaintiff was not urging. It was sufficient for the defense to answer the objections to that policy actually made by the plaintiff, and any thing more was a work of supererogation in which they were not entitled to assistance from the court.
A question was made on the trial whether the plaintiff was owner of all the property insured, and the judge instructed the jury that if the ownership of the property was incorrectly or fraudulently represented by the plaintiff, as an inducement to the issuing of the policy, this would avoid the contract, and the plaintiff could not recover. But he refused to charge in the following words: “If the jury are satisfied that plaintiff procured insurance on the property covered by the policy, representing it to be her property, and that the title or ownership of the property was material to the risk, and that any considerable portion of the property covered by policy and included in loss did not belong to the plaintiff, the same having been insured by defendant supposing it to have all belonged to plaintiff, which belief was induced by plaintiff or her agent, such representations would be a fraud upon the defendant which would vitiate the policy.” How this request differs from the charge actually given, except in being more verbose and less explicit and clear, is not apparent. We think the circuit judge was justifiable in declining to charge as requested. And if he had refused to sign the bill of exceptions until everything was stricken from it which was immaterial to the points of law presented, he would not only have been entirely justifiable, but would greatly have simplified and relieved the labors of counsel and court in examining and passing upon the record here.
We think the judgment should be affirmed, with costs.
The other Justices concurred. | [
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Mallett, C.J.
In these combined cases, we granted leave to determine whether the highway exception to governmental immunity applies to accidents involving pedestrians. MCL 691.1402(1); MSA 3.996(102)(1). In Sutiles, the Court of Appeals affirmed the trial court’s grant of defendant’s motion for summary disposition. 216 Mich App 166; 548 NW2d 671 (1996). In Brown, the Court of Appeals, by peremptory order, reversed the trial court’s denial of defendant’s motion for summary disposition. Because the factual record in Suttles is unclear, we would remand the case with instructions to the trial court. We would affirm the decision of the Court of Appeals in Brown because it correctly applied Mason v Wayne Co Bd of Comm’rs, 447 Mich 130; 523 NW2d 791 (1994).
i
A. SETTLES v DEP’T OF TRANSPORTATION
On March 15, 1992, plaintiff’s decedent got out of the passenger side of an automobile that was parked outside a church on Saginaw Street in downtown Flint, Michigan. She alleges that she slipped and fell because of an unnatural accumulation of ice and snow on the highway next to the curbed parking area. Her personal representative originally filed a complaint in the Genesee Circuit Court against the city of Flint. The city filed a motion for summary disposition, alleging that before the accident the state of Michigan had jurisdiction over Saginaw Street because it was a designated state trunk line. The circuit court granted the city’s motion. Plaintiff then refiled the complaint in the Court of Claims, naming the state of Michigan, Department of Transportation, as defendant. The Court of Claims granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) and this Court’s opinion in Mason, supra. Plaintiff appealed, and the Court of Appeals affirmed the Court of Claims order dismissing plaintiff’s complaint on governmental immunity grounds.
B. BROWN v DEP’T OF TRANSPORTATION
On July 1, 1993, plaintiff’s next Mend was struck and injured while attempting to cross the intersection of M-119, West Bluff Street, and State Street in the city of Harbor Springs, Michigan. M-119 is a part of the state trunk line in Harbor Springs that runs in an east-west direction. State Street runs north-south and West Bluff Street runs east-west until it dead ends into M-119, which, at the intersection in dispute, angles in a northerly direction into West Bluff Street. At all times relevant to this appeal, State and West Bluff Streets were under the jurisdiction of the city of Harbor Springs.
As plaintiff’s next friend and her companion approached the intersection on M-119 while heading toward downtown Harbor Springs, they intended to cross the intersection by way of the crosswalk installed as part of the traveled portion of the M-119 highway. As plaintiff’s next Mend attempted to tra verse the M-119 crosswalk, she was struck by an automobile traveling westbound on M-119. Plaintiff alleges that the intersection design was unreasonably dangerous because it is necessary for vehicular traffic heading south on State Street and attempting to turn left on eastbound M-119 to proceed into the intersection to adequately view oncoming traffic. Plaintiff claims the state owed a duty to plaintiffs next friend because it was foreseeable that an injury to a pedestrian would occur as a result of the negligently designed intersection.
Plaintiff filed the instant action against the city of Harbor Springs in the Emmet Circuit Court and against the Department of Transportation in the Court of Claims. The two cases were consolidated in the circuit court. The city and department moved for summary disposition pursuant to MCR 2.116(C)(7) and (8), which the trial court denied. The Court of Appeals reversed by peremptory order, relying on this Court’s decision in Mason, supra. We granted leave to appeal in both cases, consolidated for the purpose of this appeal, to address whether the Legislature intended to include pedestrians within the highway exception to governmental immunity.
n
A
It is well settled in this state that governmental agencies are immune from tort liability while engaging in a governmental function unless an exception applies. MCL 691.1407; MSA 3.996(107); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984). It is also well settled that the exceptions are to be narrowly construed. Id.; Reardon v Dep’t of Mental Health, 430 Mich 398, 411; 424 NW2d 248 (1988). Here, this Court is again faced with the task of interpreting the highway exception to governmental immunity. MCL 691.1402(1); MSA 3.996(102)(1).
In Sutiles, the trial court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7). In Brown, the lower court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). In determining whether a plaintiff’s claim is barred by governmental immunity, we must consider all documentary evidence, including any pleadings, depositions, admissions, or any other documentary evidence submitted by the parties. Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992); Gibson v Grand Rapids, 162 Mich App 100; 412 NW2d 658 (1987). In order to survive a motion for summary disposition under MCR 2.116(C)(7), the plaintiff must allege facts in the complaint “justifying application of an exception to governmental immunity.” 439 Mich 163.
A motion pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows only consideration of the pleadings. Id. Under both (C)(7) and (8) motions, courts must accept all well-pleaded facts as true and construe them in a light most favorable to the nonmoving party. Id. at 162-163. A motion under MCR 2.116(C)(8) may only be granted where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. at 163.
B
We acknowledge that the notion of governmental immunity, its interpretation, and its practical application have been difficult at times, stemming in part from the decisions of this Court and from the confus ing nature of the statute itself. The history of governmental immunity has been well documented in prior decisions of this Court, but, we believe, the facts of these cases require a brief look at the history once again. This Court concisely set forth the history underlying the highway exception to governmental immunity in Scheurman v Dep’t of Transportation, 434 Mich 619, 629; 456 NW2d 66 (1990):
The cases before us today center on the highway exception statute, MCL 691.1402; MSA 3.996(102). The origin of the statute is the enactment of 1879 PA 244; 1 How Stat 1442, which imposed liability upon municipalities “in favor of any person ‘sustaining bodily injury upon any of the public highways or streets in the state, by reason of neglect to keep such public highways or streets, and all bridges, cross walks and culverts on the same in good repair, and in a condition reasonably safe and fit for travel Roy v Dep’t of Transportation, 428 Mich 330, 336-337; 408 NW2d 783 (1987). With the passage of 1887 PA 264; 3 How Stat 1446c, the Legislature amended the statute and expanded its scope of liability to include sidewalks. Id. at 337.
However, when the Legislature codified governmental immunity in 1964, it specifically reduced the purview of the highway exception statute. Section 2 of the governmental immunity act expressly excludes the state and the counties from liability for “sidewalks, crosswalks or any other installation outside of [sic] the improved portion of the highway designed for vehicular travel.” MCL 691.1402; MSA 3.996(102). Furthermore, the duty of the state and the counties created under § 2, “shall extend only to the improved portion of the highway designed for vehicular travel . . . .” [Emphasis in original.]
We find this synopsis of the history underlying the highway exception instructive. The 1879 enactment articulated a broad exception to immunity that allowed “any person” a cause of action for an injury sustained on or by any of the areas listed. The 1887 amendment increased the scope of the liability to include sidewalks, perhaps the only area not provided for in the original exception. With the codification of governmental immunity in 1964, the highway exception was significantly narrowed and no longer allowed liability for the state and county for injuries incurred in three specific areas: (1) sidewalks, (2) crosswalks, or (3) any other installation outside the improved portion of the highway designed for vehicular travel.
The import of this specific limitation indicates, we believe, the Legislature’s intent to significantly limit a pedestrian’s ability to recover. With this background in mind, we proceed with these cases, while keeping to our mandate of interpreting the exceptions to governmental immunity narrowly. See Ross and Reardon, supra.
c
Today we address the specific question whether pedestrians are covered by the highway exception to governmental immunity. A review of MCL 691.1402(1); MSA 3.996(102)(1) and previous decisions of this Court lead us to conclude that pedestrians may come within the exception in limited situations.
Recent decisions of this Court provide guidance in this area. In Roy v Dep’t of Transportation, the plaintiff was injured while riding his bicycle on a bicycle path adjacent to a portion of 1-275. Id. at 332. The plaintiffs bicycle hit a “bump” that allegedly posed a danger to bicyclists and which was covered by weeds that had been previously cut and piled by the defendant. As a result, the plaintiff suffered severe injuries. Id.
The issue presented in Roy was whether a bicycle path that ran parallel to, but detached from, the traveled portion of the roadway was part of the highway, so as to fall within the highway exception to governmental immunity. We held, under the facts of that case, that the plaintiffs claim was barred by governmental immunity. In reaching that result, we noted:
Section 2 [MCL 691.1402(1); MSA 3.996(102)(1)] does not reveal a legislative purpose to protect bicyclists in general, as suggested by the Court of Appeals. Indeed, the statute does not offer general protection to pedestrians or motor ists without regard to location. The statute announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel. [Id. at 341 (emphasis added).]
A case that presented both an issue and set of facts similar to Roy was Gregg v State Hwy Dep’t, 435 Mich 307; 458 NW2d 619 (1990). The plaintiff in Gregg was injured when his fourteen-speed racing bicycle hit a pothole and overturned. Again, we considered whether the bicycle path in that case was part of the highway so as to fall within the highway exception to governmental immunity. We held that because the bicycle path in Gregg was part of “the west shoulder of [the] highway,” unlike Roy where the path was not a part of, but ran parallel to, the roadway, the plaintiffs claim fell within the exception. Id. at 310.
Justice Brickley utilized the following rationale from Roy to support this Court’s finding that the plaintiff’s claim in Gregg was not barred by governmental immunity:
“[T]he exception to immunity found in § 2 of the governmental immunity act does not apply to bicycle paths. The [highway exception to immunity] does not apply to ‘an installation outside of the improved portion of the highway designed for vehicular travel.’ A bicycle path is not designed for vehicular travel, in the common sense of ‘vehicular’ as relating to motor vehicle. [428 Mich 340.]
“[T]he statute does not offer general protection to pedestrians or motorists without regard to location. The statute announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel. [428 Mich 341.]” [Gregg, supra at 312.]
We concluded in Gregg-.
[N]ot only did Roy concern a bicycle path that was separate and apart from the roadway and the shoulder of the highway, but it concerned a path on which motor vehicles would have no occasion to enter for any reason. Furthermore, our analysis of Roy supports the different result in this case. In concluding our analysis in Roy, we said:
“This interpretation fits within each of the inteipretative clues identified above. It satisfies the express wording of § 2 which limits the duty created there to less than the full highway. It does not frustrate the policy announced in other statutes of protecting bicyclists by requiring them to use bicycle paths, where provided, in preference to roads, because bicycles on bicycle paths are not exposed to the hazards which arise from, mixing bicycle and vehicular means of travel." [Id. at 316, quoting Roy, supra at 341 (emphasis in original).]
The crux of the analysis we utilized in Roy and Gregg applies to the facts of these cases as well. We noted that “ ‘the statute does not offer general protection to pedestrians or motorists without regard to location.’ ” Gregg, supra at 312, quoting Roy, supra at 341.
We more recently addressed the applicability of the highway exception to an injured pedestrian in Mason v Wayne Co Bd of Comm’rs. There, the plaintiff alleged that the county was liable for failing to install school warning signs near an elementary school in Detroit. A majority of this Court rejected that argument because “[t]he plaintiffs’ action . . . [did] not present a special danger to vehicles. The highway exception abrogates governmental immunity at ‘points of special danger to motorists ....’” Id. at 135, quoting Grof v Michigan, 126 Mich App 427, 434; 337 NW2d 345 (1983); Comerica Bank of Kalamazoo v Dep’t of Transportation, 168 Mich App 84, 86; 424 NW2d 2 (1987). We noted that because the limiting sentence of the highway exception excluded “specific installations whose only rational purposes narrowly service the unique needs of pedestrians,” it indicated “a [legislative] conclusion that pedestrians and users of these installations have been sufficiently protected by the separation of them from motorists, without any need to impose a duty of maintenance and repair enforced by liability for resultant injuries.” Mason, supra at 136-137.
The following analysis from Mason supports this interpretation:
[Tjhe phrase “designed for vehicular travel” can only be reasonably interpreted to mean “intended for vehicular travel.” The explicit removal of exclusively pedestrian installations from the highway exception, coupled with the express language of the provision itself, permits but one conclusion: Pedestrians who trek upon Michigan highways must and do venture beyond the protective mandates of MCL 691.1402(1); MSA 3.996(102)(1).
The exclusion of crosswalks from the highway exception is consistent with the idea underlying the highway exception — that drivers of vehicles should be able to keep their minds on the traffic, and should not have to worry that dangerous surprises lie ahead. Pedestrians are situated differently than vehicular traffic, which may approach obstacles in the highway too quickly to avoid them, or may avoid obstacles only by jeopardizing traffic in the adjoining lanes.
This legislative line drawing is also explicable on the ground that expanding the right to sue past a certain point does not prevent accidents, and amounts to nothing more than an expanded obligation to pay. The Legislature may well have concluded that governmental liability for injuries to pedestrians crossing the street will not enhance vehicular safety. [Id. at 137-138.]
In Roy and Gregg, we indicated that we examined not the class of individual, but the area on which the individual traveled. As long as the individual was injured on the improved portion of the highway and was not injured in any of the three areas listed in MCL 691.1402(1); MSA 3.996(102)(1), we have consistently held that that individual stated a cause of action so as to avoid governmental immunity.
In light of this, we now turn to the facts of these combined cases in an effort to further the legislative purpose underlying the highway exception to governmental immunity, keeping in mind our mandate to construe the conditions and restrictions of the statute narrowly.
m
Plaintiff Suttles contends that as long as a person is on the improved portion of the highway and is not within the specifically exempted areas of crosswalks, sidewalks, or other pedestrian installations, the government is not entitled to immunity. Plaintiff Brown alleges that because of a design defect at the intersection in question, the defendant breached its duty to maintain the improved portion of the highway safe for vehicular travel.
A
Plaintiff Suttles got out from the passenger’s side of the vehicle in which she was traveling and was injured when she allegedly slipped and fell on an unnatural accumulation of ice and snow. The record is replete with varying accounts regarding the specifics surrounding plaintiff’s injury. For example, in her deposition taken before her death, the plaintiff indicated, at one point, that she was on the improved portion of the highway at the time she fell. Later, she indicated that she was on the curb or sidewalk when she was injured.
There was also conflicting testimony regarding the location of the ice and snow. The plaintiff indicated the accumulation was both on the sidewalk and on the improved portion of the highway. The plaintiff’s personal representative testified in his deposition that he found the plaintiff laying on the sidewalk next to the ice and snow that had been piled on the sidewalk and spilled over onto the curb. The accounts regarding snowfall on the day in question also conflicted.
Finally, the maintenance workers and the security personnel from the office building located immediately adjacent to the area where plaintiff was injured also testified. The city of Flint’s street maintenance supervisor testified as well. These individuals gave different accounts regarding whose responsibility it was to remove snow and ice, and the origin, size, and location of the snow accumulation in this case.
To the extent the answers to these and other issues relate to the duty, if any, owed to plaintiff by defendant at the time of her injury, they must be resolved by the trial court on remand. If plaintiff is found to have been injured on the sidewalk, then neither the county nor the state owed her a duty under the high way exception to governmental immunity. MCL 691.1402(1); MSA 3.996(102)(1). If, however, plaintiff was injured in the traveled portion of the highway because of defendant’s negligence, then she may have pleaded a cause of action within the highway exception to governmental immunity.
The record indicates the vehicle in which the plaintiff was traveling parallel parked along the curb in a portion of the highway that had been specifically designated for parking by an alcove-like curbed area. This Court’s holding in Mason provided that if a plaintiff is injured on a sidewalk, in a crosswalk, or on any other installation outside the improved portion of the highway designed for vehicular travel, no duty is owed to that plaintiff by the state or a county. If, on remand, it is determined that plaintiff was on the sidewalk when she fell, the analysis is simple: The defendant did not owe a duty to her.
If, however, it is found that the plaintiff fell and was injured by a defect in the improved portion of the highway, then she may have pleaded a cause of action so as to avoid governmental immunity. Hence, we would reaffirm the analysis adopted in Gregg, which allowed suit by a nonvehicular traveler who was injured on the improved portion of the highway designed for vehicular travel. We would leave it to the trial court on remand to ascertain the answers to these questions.
We reiterate, however, that the immediately preceding discussion should not be interpreted to mean the defendant is automatically liable to the plaintiff even if it is found that she was injured on the improved portion of the highway designed for vehicular travel. Plaintiff must still demonstrate the requisite elements of a negligence cause of action. If on remand the trial court determines that the plaintiff has sufficiently pleaded a cause of action so as to avoid governmental immunity, the existence of a duty owed to plaintiff by defendant has been established. Plaintiff must then prove defendant breached that duty, and that the breach was the proximate and factual cause of her injury.
B
Plaintiff Brown’s next friend was injured when she was struck by an automobile while crossing M-119 on a crosswalk. The mandate of MCL 691.1402(1); MSA 3.996(102)(1) is clear: Neither the state nor a county owes a duty to a pedestrian while the pedestrian is in a crosswalk. This issue was decided by this Court in Mason, and we would specifically reaffirm that holding today. Because it is undisputed that plaintiff’s next friend was injured while she was in the cross walk, neither the state nor the county owed her a duty. Summary disposition under MCR 2.116(C)(7) and (8) was therefore proper.
w
For the foregoing reasons, we would reverse Sutiles and remand the case to the trial court with instructions for further factual development, and we would affirm the Court of Appeals decision in Brown.
Boyle, J., concurred with Mallett, C.J.
This Court has previously held that the Legislature intended to use applicable terms in the governmental tort immunity act with the same meaning as they have in the motor vehicle code, MCL 257.1 et seq.; MSA 9.1801 et seq. See Roy v Dep’t of Transportation, 428 Mich 330, 338; 408 NW2d 783 (1987).
The motor vehicle code, MCL 257.10; MSA 9.1810, defines “Cross-walk” as
(a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs, or in the absence of curbs from the edges of the traversable highway.
(b) Any portion of a highway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.
Crosswalks as defined above are not to be confused with a “pedestrian overhead walkway.” MCL 257.627a(3); MSA 9.2327(1)(3). See also Mason, supra at 136, n 5.
It appears from the record that the trial court granted in part and denied in part the city of Harbor Springs motion for summary disposition. The city has not taken part in this appeal.
454 Mich 895, 896 (1997).
The highway exception provides:
Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21 of chapter IV of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Michigan Compiled Laws. The duty of the state and county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. A judgment against the state based on a claim arising under this section from acts or omissions of the state transportation department is payable only from restricted funds appropriated to the state transportation department or funds provided by its insurer.
The Court of Appeals majority in Suttles noted the confusing nature of the statute as well:
The express language of the highway exception indicates that the duty of highway authorities to repair and maintain the highways “shall extend only to the improved portion of the highway designed for vehicular travel.” The provision then states that such duty “shall not” extend to three types of installations: (1) “sidewalks”; (2) “crosswalks”; and (3) “any other installation outside of the improved portion of the highway designed for vehicular travel.” (Emphasis added.)
This language is confusing for several reasons. First, its structure implies that installations 1, 2, and 3 are exclusions from the highway exception. Yet, it is difficult to fathom how “sidewalks,” unlike “crosswalks,” could be construed as part of the “improved portion of the highway designed for vehicular travel,” even absent their explicit exclusion from the highway exception. Second, the “any other installation” language of the third exclusion to the highway exception follows a specific enumeration of terms that by implication also describe installations “outside of the improved portion of the highway designed for vehicular travel”; “crosswalks,” however, clearly do not fit this description. In other words, it is unclear why “sidewalks” are expressly excluded from the highway exception and it is equally unclear why “crosswalks” are implicitly described as installations “outside of the improved portion of the highway designed for vehicular travel.” [Id. at 168-169.]
The injured plaintiff and his wife filed suit against the Department of Transportation. The plaintiffs wife’s claim was derivative only.
In Gregg at 311, n 3, this Court specifically noted the fact that the plaintiff was “entitled to travel on the improved portion” of the highway. Stated otherwise, the plaintiff was an intended and permitted user of the improved portion of the highway.
The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. [MCL 691.1402(1); MSA 3.996(102) (1). ]
This foEows Chief Justice Riley’s analysis in Scheurman, supra at 630, n 20:
Another seemingly obvious reason to construe the highway exception narrowly is the language of the specific § 2 phrase that we are interpreting today. The Legislature provided that the duty of the state and the counties “shall extend only to . . . .” (Emphasis added.) Common sense suggests that the “only” implies that the Legislature intended the duty to be strictly construed.
In every instance where a plaintiff alleges a cause of action based on the highway exception to governmental immunity, MCL 691.1402(1); MSA 3.996(102)(1), the court must engage in a two-step analysis. The first step requires a determination whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity. First, a court must determine whether the plaintiffs accident occurred on the improved portion of the highway designed for vehicular travel. The next question that must be answered under the first step is whether the plaintiff’s injury occurred on a sidewalk, in a crosswalk, or on “any other installation outside of the improved portion of the highway designed for vehicular travel.” Id. Under the latter inquiry, if the injury occurred in any of the three delineated areas, the plaintiff’s claim does not fit within the exception to governmental immunity, i.e., the plaintiff’s claim is barred. However, if the injury occurred in an area of the improved portion of the highway, other than in one of the three specifically excluded areas, the plaintiff has pleaded a cause of action circumventing governmental immunity and the plaintiff may proceed with the negligence cause of action.
Under the second step, a plaintiff must prove a cause of action under traditional negligence principles. Concepts such as the “intended and permitted user” language derived from Gregg apply to the negligence analysis and bear on whether a defendant owed a duty to the plaintiff or whether the plaintiff was comparatively negligent. See Mason, supra at 136, n 5. A plaintiff, in order to recover, must satisfy both legs of this analysis.
This opinion should neither be interpreted as overruling the established line of authority that a governmental agency’s failure to remove natural accumulations of ice and snow does not automatically constitute negligence on the part of that governmental agency, see Reese v Wayne Co, 193 Mich App 215, 217; 483 NW2d 671 (1992), and cases cited therein, nor should it be interpreted as establishing a cause of action under the highway exception on the basis of unnatural accumulations of ice and snow. Because neither question is properly before us today, we need not address either one.
We note plaintiff’s complaint is, perhaps purposefully, ambiguous regarding where she fell. It could be read to allege a fall on the improved portion of the highway or on the sidewalk. In addition, as noted earlier, plaintiff’s deposition testimony in this regard was contradictory.
The author notes that the position taken here may seem inconsistent with that of the dissent in Mason, supra at 139, which this author signed. Given the majority holding in Mason and the clear language of MCL 691.1402(1); MSA 3.996(102)(1) concerning the lack of duty for injuries sustained in crosswalks, the author recognizes that Mason is controlling.
The dissent would allow plaintiff’s decedent to maintain a cause of action against the state for an injury sustained on the improved portion of the highway, her case premised on an alleged defect in the design of the intersection at which she was injured. We find this interpretation of the highway exception to be both overbroad and unsupported by the law of this state. Indeed, the dissent does not cite a single case to support its contention. This omission is not based on neglect, but instead on a lack of legal authority. No decision of this Court that has recognized a cause of action for a design or construction defect in a highway involved a pedestrian. See Killeen v Dep’t of Transportation, 432 Mich 1; 438 NW2d 233 (1989); Peters v State Hwys Dep’t, 400 Mich 50; 252 NW2d 799 (1977); Carver v Detroit & Saline Plank Rd Co, 61 Mich 584; 28 NW 721 (1886). The dissent’s interpretation would establish a previously unrecognized cause of action for individuals outside the class of persons the highway exception was designed to protect.
Since we reaffirm our decision in Mason that pedestrians in crosswalks are not covered by MCL 691.1402(1); MSA 3.996(102)(1), we need not address plaintiff Brown’s allegation that there is a design defect at the intersection where plaintiff’s next friend was injured. | [
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Christiancy, J.,
delivered the opinion of the court, holding that the proofs failed to establish the incapacity of complainant at the time of the execution of the deed, or to show any fraud or undue influence on the part of the defendants, or either of them, or that there was any thing improvident or injudicious on the part of complainant in conveying the property to his wife.
Decree belovv reversed, and bill dismissed, with costs of both courts to appellant. | [
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] |
The Court
held that a bill of exceptions in a criminal case should contain every ruling raising a question of law,, whether on the trial or in the proceedings preliminary thereto, by which the defendants claim that their- rights-were in any way prejudiced: and the proceedings upon a motion to quash the information are always proper to be incorporated into the bill of exceptions, if required by the-defendants.
Mandamus granted. | [
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Christiancy, Ch. J.
Complainant, as the administrator of Moses Dillon, deceased, filed his bill to foreclose a mortgage executed by 'defendants, Garhardus Langdon and Francina, his wife,' to said Moses Dillon, dated the 25th day of August, 1870, upon forty acres of land' in Hillsdale county, which. Dillon had conveyed to Garhardus Langdon ; the mortgage being given for one, thousand five hundred dollars of the purchase money, payable five years from the date of the mortgage, with interest thereon at ten per cent, per year, payable annually. The mortgage was accompanied by the promissory note of Garhardus Langdon. Dillon, the mortgagee, died on the 11th day of November, 1870, and complainant, having -been appointed administrator, filed this bill on the 28th day of February, 1872, to foreclose for the amount of one year’s interest (one hundred and fifty dollars), which he claimed to have become due on the 25th of August, 1871.
The defense relied upon was, that Dillon had at two different times between the execution of the mortgage and his death, indorsed, or rather directed said Francina E. Langdon, who was his grand-daughter, who had kept house for him, and to whom he was much attached, to indorse upon the mortgage the amount of one thousand dollars, in two sums, one of four hundred and one of six hundred dollars, and that she had done so under his direction and in his presence, for the purpose, and with the intention, on his part, of forgiving or donating so much of the mortgage debt, and to extinguish it to that extent; and that the defendant Ferguson, to whom the mortgaged premises had in the meantime been conveyed by Langdon and wife, had, on the 9th day of September, 1871, tendered to the complainant the sum of sixty dollars, the amount due for the first year’s annual interest, and thereby to that extent extinguished the lien of the mortgage.
It was proved upon the trial that Dillon had, on the 25th day of August, 1870, (the date of the mortgage), conveyed to said Francina (the wife of Garhardus Langdon) one-half of his farm, including, as we judge from the evidence, the dwelling house; and there was no proof that for this conveyance there was any pecuniary consideration paid, but that she had executed back to him a life, lease-free of rent; and that Dillon had for a short time before, and did afterwards to the time of his death, live in the house with said Garhardus and Francina; that on the same day he also conveyed to said Garhardus the other half of his farm, and that this mortgage was given for the purchase money, or part of the purchase money for this last conveyance; but there was evidence tending to show, and we think such was the fact, that the sum agreed to be-paid by Garhardus for the conveyance to him was two thousand dollars; that five hundred of it was paid, and that the mortgage was given for the balance, fifteen hun dred dollars, and that the property so conveyed to Garhardus was-not worth ‘over sixteen hundred, dollars' at the time.
It was claimed on the part of 'the complainant, and he introduced evidence tending to show, -that Dillon was an intemperate man, about- sixty-seven years old, and that at the time of the conveyances'-mentioned, and afterwards when these indorsements -on- the mortgage were claimed-by the defendants' to have been made, he was incompetent,- from' drunkenness, for the proper ‘transaction of business; that after, if not also before the execution of the deeds, and' while Dillon was living In the same house with defendants Garhardus and-Francina, said Garhardus encouraged him' in his habits of drinking, and -furnished him - liquor and1 drank with him,' and that both he and his wife wished to get rid of him, and.were anxious for his early, death.
Complainant also claims, and there was some -evidence tending to show,- that said Francina, the grand-daughter of Dill'on,-had at all times -access to his papers, and that she had made the indorsements on the mortgage without his direction.
n-the-, other-hand -the evidence-on .'the- part of the defendants strongly tended to- show his entire competency to transact business; his strong attachment-to his grand-daughter, Francina, his hostility to his own children,- with whom he declared he could not live, his deliberate purpose to' give most of his property to Francina, or to her and' her husband, because she had shown more sympathy for him, and- lived with and kept house for him, took care of him and treated him better than his own children had done; and that he repeatedly declared his intention of so-arranging his-affairs that his children should not have his-property. And there -was strong evidence, both direct and' circumstantial, that the endorsements were made upon the mortgage by said Francina at his : own suggestion - and request and in his presence, and that after they were made he declared his satisfaction with and approval of them; that they were made for the deliberate and intelligent pur pose of donating and extinguishing so much of the mortgage debt.
Upon all of these questions the testimony is very conflicting, and judging of it only as it appears upon paper, it would seem upon some of these questions to be nearly equally balanced; though we think, upon the whole, after a careful examination, there is a slight preponderance in favor of the case as claimed by the defendants. We are quite satisfied of the competency of Dillon, and of his deliberate purpose not to allow his property to go to his children ; and we are inclined to the belief, from the evidence, that the indorsements upon the mortgage were made at his suggestion, by his direction, and in his presence, for the purpose already stated. Upon this point especially the credit to be given to the conflicting testimony would depend greatly upon the appearance, manner and deportment of the witnesses, in giving their testimony. Of these means of estimating the weight due to the evidence of the respective witnesses we are deprived. And as all the evidence was given in open court, in the county in which, the witnesses and the judge resided, we think it right to say that his finding is entitled to much weight, and ought not to be overruled, where the evidence appears to us to be so nearly balanced.'
He found the evidence in favor of the defendants, and dismissed the bill, and from our own view of the evidence we cannot reverse his decree upon the ground that his finding upon the evidence wqs erroneous.
We must therefore hold that the indorsements constituted a gift or donation, or rather, an extinguishment or forgiving of the mortgage debt to that extent, unless there be some rule of law which, notwithstanding the intention of the donor to make the gift, or effect the extinguishment, prevents its taking effect as such.
It is objected, however, by the counsel for the complainant, that this being a gift inter vivos, delivery and acceptance were essential to its validity; and that as here was no delivery, it could not take effect. Doubtless such, is the rule where the gift consists of tangible personal property which admits of actual delivery; and the same rule would probably apply where the notes or bond of a third person is the subject of the gift. Whether, if the whole mortgage debt, in the present case, had been the subject, delivery of the note and mortgage, or one of them, would not have been essential to its validity, we need not inquire. In the present case it was but a part of the sum secured by the note and mortgage, and the attempted donation was to the debtors themselves. And it is difficult to conceive how any delivery could have been made. But it is said that there must have been a delivery of the papers, or of a release ox-receipt for the portion of the debt intended to be given; because, without something of this kind, it would have been in the power of the donor to retract; and this he might doubtless have done, if this had been an executory agreement undertaking to make this gift. But here the purpose and intention of making the gift was fully executed, and by one of the donees actually accepted at the tihie; and the acceptance by the other, of the extinguishment of a part of a debt against himself, may be very safely presumed. And if it remained in the power of the donor to retract, it would have been equally so, if purely a gift, had a receipt been given, and equally so, for aught we can discover, had a release been given, there being no consideration, and under onr statute (Comp. L. of 1871, § 5947), which makes the seal no more than prima facie evidence of a consideration. The want of consideration could, therefore, in either case, have been shown.
As the debt which was the subject of the gift, when considered with reference to the fact that the donee was the debtor, and that only part of the debt was attempted to be given, did not admit of actual delivery, and as all Was done that could well be done, under the circumstances, to render the gift effectual, we do not think the act and intention of the donor should be defeated merely because tbe subject did not admit of an actual or technical delivery.
But we think from the testimony the donor evidently contemplated the transaction as a disposition of his property in view of his own death, and that it must therefore be considered as somewhat in the nature of a testamentary disposition, and, in this view, the donation was one for which the donor recognized in the kindness of the donees, in taking care of him, something in the nature of a consideration, one at least satisfactory to himself. The gift must therefore be sustained.
The answer alleges a tender by Ferguson of sixty dollars as the interest (meaning for one year) due on the mortgage after the allowance of the indorsements. No testimony, however, was adduced upon this point; but the record states that “complainant admits that there was a fender of the interest on five hundred dollars, made to him before this suit was commenced, by Mr. Ferguson, one of the defendants,” and this is all that appears' in the proofs. But the interest on five hundred dollars for the year is but fifty dollars, while the indorsements were made, August 31st, 1870, six hundred dollars; October 17th, 1870, four hundred dollars. And the whole principal (one thousand five hundred dollars) drew interest to August 31st (six days), which is...................................$2 50 And nine hundred dollars drew interest from August
31st to October 17th, 1870.....................11 50
And five hundred dollars from October 17th, 1870, to
August 25th, 1871 (ten months, eight days),42 79
$56 79
Deduct tendered as per admission__________________ 50 00
$6 79
The tender upon this basis was too little by six dollars and Beven tv-nine cents.
But as the language of the admission is a little ambiguous, when considered with reference to the pleadings and the facts of the case, and the court must have understood the admission as intended to admit a tender of the interest due after allowing the indorsements which reduced the amount to five hundred dollars, or he could not have dismissed the bill, and we think it highly probable all parties must so' have understood it, and it does not appear that any objection was made on the ground that the amount was not sufficient, if the indorsements were allowed, we must consider the tender of the whole interest due as sufficiently proved. This tender destroyed the lien of tbe mortgage for interest accrued up to August 25th, 1871.
The decree of the court below dismissing the bill must therefore be affirmed, with costs.
The other Justices concurred. | [
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Mallett, C.J.
Following a jury trial, the defendant was convicted of first-degree murder, assault with intent to murder, and possession of a firearm during the commission of a felony. The Court of Appeals affirmed. We reverse the judgments of the Court of Appeals and the trial court because the prosecution failed to exercise due diligence in its attempts to produce a key witness.
i
The case arises from events that occurred in the early morning hours of January 4, 1992. Donavan Car-gill was the passenger in a car driven by his cousin, Eric Martin. Shots were fired, and Mr. Martin was killed. Mr. Cargill survived, and was one of two persons who later testified at the preliminary examination of defendant Kimani Bean.
Mr. Cargill testified at the preliminary examination that, as their car came to a stop at a traffic light, he noticed the defendant standing by a nearby building, on the passenger side of their car. The defendant was illuminated by the headlights of the cars, and was carrying a “mac 12” automatic weapon. As Mr. Martin’s vehicle came to a stop, the defendant and another person began shooting. Mr. Martin was killed as a result of three shots to the head. Mr. Cargill was struck thirteen times, and spent the next two months in the hospital.
The second witness at the preliminary examination was Martez Pryor. He testified that he was a pedestrian who witnessed the shooting. With him was a friend named Demetrius Anderson. Mr. Pryor saw the defendant in a car that was driven by someone named “Meatman” (who was later identified as Frank A. Caldwell). Mr. Pryor testified that he saw the defendant jump out of the driver’s side, and Mr. Caldwell jump out of the passenger’s side of the car, and begin to shoot at the car that contained Mr. Cargill.
On cross-examination, Mr. Pryor acknowledged that he had not approached the police with his story until about ten months after the shooting. He did so only after a friend named Antonio Jones was shot in an incident that, Mr. Pryor believed, involved Mr. Caldwell. However, he denied that the reason for his decision to testify was to get even with Mr. Caldwell’s friend, defendant Kimani Bean.
On this testimony, the defendant was bound over on charges of first-degree (premeditated) murder of Mr. Martin, assault with intent to murder Mr. Cargill, and possession of a firearm during one or both of those felonies. MCL 750.316(l)(a), 750.83, 750.227b; MSA 28.548(l)(a), 28.278, 28.424(2).
Before trial, the defendant filed a notice of an alibi defense. Presumably, the prosecution filed a witness list that included the names of Mr. Pryor and Mr. Anderson, since they were res gestae witnesses and the record confirms that the court issued subpoenas for them.
During the trial, the assistant prosecutor asked for a hearing on whether due diligence had been exercised in the attempts to locate Mr. Pryor and Mr. Anderson, neither of whom had been produced for trial. The purpose of the hearing was to gain permission to use Mr. Pryor’s preliminary examination testimony at trial. The prosecutor also sought to foreclose an instruction that Mr. Anderson’s testimony could be inferred as having been unfavorable to the prosecution.
After taking testimony from three Detroit police witnesses, the trial court ruled that due diligence had been demonstrated. Accordingly, the court allowed the preliminary examination testimony of Mr. Pryor to be read to the jury. Also in keeping with its ruling regarding due diligence, the court did not instruct the jury with regard to an inference to be drawn from the nonproduction of Mr. Anderson.
At trial, the prosecution expanded its proofs, but the key witnesses remained Mr. Cargill and Mr. Pryor (who did not appear, but whose examination testimony was read to the jury). The defendant did not testify, but he presented an alibi defense. One alibi witness testified in some detail regarding a trip he and the defendant had taken to Chicago several days before the offense occurred. He said they attended a concert at the Rosemont Horizon, and then stayed in Chicago several days, not returning until after the shooting occurred. Another alibi witness (a sergeant employed full time by the National Guard) testified that he had traveled separately to Chicago for other reasons, and happened to encounter the defendant at a night club in the early morning hours of January 4, 1992, just about the time this crime took place.
The jury found the defendant guilty as charged. The trial court imposed the mandatory life term for first-degree murder, a ten- to fifteen-year term for assault, and a two-year consecutive term for felony-firearm.
The defendant appealed, and the Court of Appeals affirmed. We granted leave, limiting the issue to “whether the trial court committed reversible error in finding that plaintiff exercised due diligence in attempting to locate witnesses Pryor and Anderson.”
n
The Sixth Amendment of the United States Constitution, and § 20 of article 1 of the Michigan Constitution of 1963, grant an accused the right “to be confronted with the witnesses against him.” As this Court reiterated in People v Dye, 431 Mich 58, 64; 427 NW2d 501 (1988):
[T]he purpose of the Confrontation Clause is to provide for a face-to-face confrontation between a defendant and his accusers at trial. This confrontation is an important right of the defendant because it enables the trier of fact to judge the witnesses’ demeanors. . . . Demeanor evidence is important.
In this case, however, the prosecution was unable to produce Mr. Pryor at trial, and sought instead to introduce his transcribed testimony from the preliminary examination.
In separate opinions, we unanimously agreed in Dye that the constitutional right to confront one’s accusers would not be violated by the use of preliminary examination testimony as substantive evidence at trial only if the prosecution had exercised both due diligence to produce the absent witnesses and that the testimony bore satisfactory indicia of reliability. Dye at 64-67, 89, 98-99.
In support of the conclusion that due diligence must be shown, a majority of this Court in Dye also relied on the statute governing the use of preliminary examination testimony at trial:
Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony, become insane or otherwise mentally incapacitated to testify. [MCL 768.26; MSA 28.1049.]
The constitutional principle identified in Dye is also reflected in the Michigan Rules of Evidence. The prosecution may present at trial the transcribed testimony of a witness at the preliminary examination, MRE 804(b)(1), if the witness is unavailable in the sense explained in MRE 804(a)(5):
“Unavailability as a witness” includes situations in which the declarant—
* * *
is absent from the hearing and proponent of a statement has been unable to procure the declarant’s attendance ... by process or other reasonable means, and in a criminal case, due diligence is shown. [Emphasis added.]
MRE 804 and Dye thus provide that the introduction of Mr. Pryor’s preliminary examination testimony as substantive evidence was permissible only if the prosecution showed due diligence in its attempt to produce Mr. Pryor. Accordingly, it is necessary to examine closely the attempts that were made to locate him.
m
A
The test for whether a witness is “unavailable” as envisioned by MRE 804(a)(5) is that the prosecution must have made a diligent good-faith effort in its attempt to locate a witness for trial. The test is one of reasonableness and depends on the facts and circumstances of each case, i.e., whether diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it. Barber v Page, 390 US 719, 724-725; 88 S Ct 1318; 20 L Ed 2d 255 (1968); Dye at 67, 83. The trial court’s determination will not be disturbed on appeal unless a clear abuse of discretion is shown. Dye at 83, 93 (Archer, J., concurring); People v McIntosh, 389 Mich 82, 87; 204 NW2d 135 (1973); People v Starr, 89 Mich App 342, 345; 280 NW2d 519 (1979). We hold that the record in the instant case indicates that the prosecution failed to exercise a diligent good-faith effort to produce Mr. Pryor and the trial court abused its discretion in holding otherwise.
B
As indicated, the trial court conducted a midtrial hearing regarding the efforts of the police to locate Mr. Pryor. The police witnesses were Sergeant Robert Gerds, Donald Stawiasz, and Richard Ivy.
Sgt. Gerds testified that, when Mr. Pryor spoke to the police in November 1992, he gave the police his name, social security number and birth date. He also provided the name, address, and phone number of his grandmother, with whom he was living. In addition, the police obtained an address and phone number for Mr. Pryor’s mother (but not her name). Mr. Pryor gave no place of employment.
Sgt. Gerds’ later efforts to contact Mr. Pryor were limited to placing unsuccessful telephone calls. He called Mr. Pryor’s mother, and left a message on April 29, 1993. He called the phone number again on May 10, 1993 (the first day of the defendant’s trial), and received no answer. Sgt. Gerds said that the witness’ phone was disconnected — presumably he meant the phone of the grandmother, with whom Mr. Pryor was living.
Donald Stawiasz, at the time of these events, was an investigator with the Detroit Police Department. On April 28, 1993 (twelve days before trial), he went looking for Mr. Pryor. The address given for him was an abandoned house, but Mr. Stawiasz had been told to try a house across the street. He did, and was told that Mr. Pryor’s mother had moved to the Washington, D.C., area. He was further told that he should ask at another house, next door.
There, he met a Carolyn Brown, who was a relative of the Pryors. Ms. Brown supplied the name of Mr. Pryor’s mother and confirmed that she had moved a week earlier to the D.C. area. Ms. Brown thought Mr. Pryor had gone with his mother. The move was prompted by a government job of some sort, but Ms. Brown knew neither the agency that employed Ms. Pryor nor in what city the Pryors lived. Mr. Stawiasz asked Ms. Brown if she knew of any local girlfriends or other contacts for Mr. Pryor, but she did not. He left his business card with Ms. Brown, but she did not contact him thereafter. Mr. Stawiasz’ efforts were limited to what he did on April 28.
Richard Ivy, at the time of these events, was also an investigator with the Detroit Police Department. He assented when asked whether he was “the officer in charge of the investigation of the death of Eric Martin.” He said that, when he went to get Mr. Pryor for the defendant’s preliminary examination, Mr. Pryor was standing on the sidewalk in front of the address the police had for him. But when he went back to get Mr. Pryor for Mr. Caldwell’s examination, the house was boarded up.
Like Mr. Stawiasz, Mr. Ivy also tried the house across the street from Mr. Pryor’s known address. He checked for two days, without success. When he returned from a short vacation, he learned from Mr. Stawiasz that Mr. Pryor and his mother had apparently moved to the Washington, D.C., area. Mr. Ivy had checked the Wayne County jail and the Oakland County jail, looking for the missing witnesses, but he ceased looking locally for Mr. Pryor after he was told of the move to Washington, D.C.
Mr. Ivy stated that he did receive a telephone call from a woman who asked to speak with Mr. Stawiasz. When he told the caller that Mr. Stawiasz was not available, she left the message, “Tell him that I couldn’t find Mr. Pryor . . . .” Realizing that this message related to the present case, Mr. Ivy asked the caller to identify herself, but she responded, “No, I don’t want to leave that information. I don’t know where they’re at.” After taking that call, Mr. Ivy went back once more to the boarded-up house that had been Mr. Pryor’s address and to the house across the street, but he did not find Mr. Pryor.
In questions posed to these witnesses during cross-examination, defense counsel was able to highlight many of the steps that they did not take in their efforts to locate these witnesses. For instance, although the police tried to telephone Mr. Pryor’s grandmother, they never went to her address after learning that her phone was disconnected. Neither did they inquire with regard to her whereabouts, after learning that Mr. Piyor and his mother had moved. The police had a telephone number in Detroit for Mr. Pryor’s mother, but never sought the assistance of the telephone company in matching the number to an address; neither did they ask the phone company for access to information provided by Mr. Pryor’s mother or grandmother at the time they obtained telephone service. No contacts of any kind were attempted with police departments or other agencies in the Washington, D.C., area. The police never checked with the Postal Service to see whether change-of-address forms had been filed. The police did not check with the Michigan Department of Corrections to see whether Mr. Pryor was incarcerated there, and the police did not contact the Department of Social Services (Family Independence Agency) to learn whether there was a current address for receiving public assistance benefits.
After receiving these proofs, the trial court ruled that the police had exercised due diligence in attempting to locate Mr. Pryor.
The next day, Mr. Ivy testified briefly concerning an additional attempt that had been made to locate Mr. Pryor. He testified that he asked some officers who were familiar with Mr. Pryor to look for him during their evening patrol. They went to the addresses that had already been checked, with the same results — Mr. Pryor’s house was boarded up, and persons in Mr. Pryor’s neighborhood told the officers that he and his mother had moved to Washington, D.C.
Defense counsel then asked the trial court to reconsider its earlier ruling. However, the court adhered to its conclusion that the police had exercised due diligence.
rv
This is not a case in which the police did nothing in their attempt to locate Mr. Pryor. Neither, however, did they exercise due diligence. The police phoned his grandmother, were told that her phone was disconnected, and then ceased all efforts to contact her. At no time did the police contact any Detroit or Washington agency that might have information regarding the whereabouts in Washington of Mr. Pryor’s mother. The police took no steps to track down her Detroit-area home or other local sources of information about her. The police simply returned several times to Mr. Pryor’s boarded-up, empty house, and to the houses across the street where they were told of the move to Washington, D.C. — sources that had already proven themselves not to be helpful.
In examining the efforts made to locate Mr. Pryor, who was believed to be out of state, one may usefully compare the steps taken in Dye. That case involved three missing witnesses, each of whom was known to have left the state. As the opinions of this Court recount, the prosecution was in contact with authorities in Iowa, California, and Tennessee, where the witnesses were thought to be. Significant effort was expended to locate the witnesses in those foreign jurisdictions. Further, there was a wide variety of local efforts, including checks of jails, hospitals, and morgues, and contact with utility companies and government agencies. 431 Mich 67-73, 85, 99-103.
The efforts in the present case to locate Mr. Pryor were less extensive than those described in Dye. The authorities in the present case took no steps whatsoever to locate Mr. Pryor or his mother in the area to which they had evidently moved. This Court having found the efforts in Dye insufficient, we cannot escape the conclusion that the steps taken in the present case did not constitute due diligence. Hence, it was error to allow Mr. Pryor’s transcribed testimony from the preliminary examination to be read to the jury as substantive evidence at the defendant’s trial.
This error was not harmless. The cross-examination of Mr. Pryor at the preliminary examination was brief, and concerned only the issue of bias. Counsel did not explore his ability to observe the disputed events. At the preliminary examination, Mr. Pryor acknowledged a link between the shooting of Mr. Jones (his friend or cousin) and his decision (ten months after the event) to report the present crime. In this context, the term “harmless” cannot be applied to the denial of the defendant’s constitutional right to confront Mr. Pryor at trial, or the jury’s lack of opportunity to observe Mr. Pryor’s demeanor. This, when coupled with the fact that Mr. Pryor was a key witness in the prosecution’s case against the defendant, simply cannot be deemed harmless. We concur in Justice Marshall’s statement in Barber at 725, “[t]he right of confrontation may not be dispensed with so lightly.”
For these reasons, we reverse the judgments of the Court of Appeals and the trial court, and remand this case for a new trial.
Brickley, Cavanagh, Weaver, Kelly, and Taylor, JJ., concurred with Mallett, C.J.
Charges were brought against Mr. Caldwell, but the prosecutor’s inability to produce witnesses eventually caused the charges to be dismissed.
This prosecution did not get under way until Mr. Pryor made his report — apparently there were no suspects until then.
Mr. Jones was later described as Mr. Pryor’s cousin.
Defense counsel began to ask Mr. Pryor whether he believed that the defendant also was involved in the shooting of Mr. Jones, but counsel was sidetracked by an objection. Though the objection was overruled, counsel moved on to a related question concerning the defendant’s friendship with Mr. Caldwell, and did not get an answer to her question whether Mr. Pryor thought the defendant had also been involved in the shooting of Mr. Jones.
Such a list is required by MCL 767.40a(3); MSA 28.980(1)(3), but a copy is not in the court file.
The assistant prosecutor was mindful of CJI2d 5.12, which reads:
_is a missing witness whose appearance was the responsibility of the prosecution. You may infer that this witness’s testimony would have been unfavorable to the prosecution’s case.
While the appeal was pending, the defendant persuaded the Court of Appeals to remand the case to the trial court, so that the defendant could move for a new trial on the ground that he had been denied the effective assistance of counsel. Unpublished order of the Court of Appeals, dated May 27, 1994 (Docket No. 167029). The trial court conducted an evidentiary hearing, but denied the motion for a new trial.
Unpublished opinion per curiam, issued January 9, 1996 (Docket No. 167029).
456 Mich 878 (1997).
The Sixth Amendment applies to the states through the Fourteenth Amendment. Pointer v Texas, 380 US 400; 85 S Ct 1065; 13 L Ed 2d 923 (1965).
This Court has, in the context of a witness’ prior testimony and the Confrontation Clause, interchangeably used the terms “due diligence” and “good faith” when addressing the prosecution’s burden to produce witnesses before any prior testimony may be admitted. See People v McIntosh, 389 Mich 82, 87; 204 NW2d 135 (1973); People v Starr, 89 Mich App 342, 345; 280 NW2d 519 (1979). The “good faith” language steins from the United States Supreme Court’s holding in Barber v Page, 390 US 719, 725; 88 S Ct 1318; 20 L Ed 2d 255 (1968). In that case, the Court held that the state authorities failed to make a good-faith effort to secure an endorsed res gestae witness at trial before admitting the transcript of the witness’ preliminary hearing testimony. Since that decision, the courts of this state have adopted the “good faith” standard, and in some instances have referred to it as a “due diligence” standard. We specifically note that while the terminology is different, any difference is merely a matter of semantics and may be used properly in either form when analyzing this constitutional issue.
Given the conclusion we reach with regard to due diligence, we need not address the second step, whether the examination testimony of Mr. Pryor bore “satisfactory indicia of reliability”
Mr. Anderson did not testify at the preliminary examination, and no accusation of his was used against the defendant at trial (the court inquired about his nonproduction only to determine whether to give CJI2d 5.12) so that the defendant’s constitutional right to confront Mr. Anderson was violated. Furthermore, the defendant has not argued that the prosecution’s failure to locate Mr. Anderson was harmful to his defense. We therefore hold that the issue is abandoned because the appellant did not brief it. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Hence, we need not address the situation involving Mr. Anderson any further.
This was the day before Mr. Caldwell’s scheduled preliminary examination.
The materials at hand do not indicate that any of these persons were receiving public assistance.
No effort was made to invoke the uniform act to secure attendance of witnesses from without the state. MCL 767.91 et seq.; MSA 28.1023(191) et seq. | [
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] |
Kelly, J.
We granted leave in this case to decide whether there is a right to trial by jury in an action under the Whistleblowers’ Protection Act. MCL 15.361 el seq.-, MSA 17.428(1) el seq. If the right does exist, does it obtain when the defendant is the state or one of its political subdivisions? We hold that the act contains a right to a jury trial, and that the right exists in suits against the state of Michigan and its subdivisions. We thus affirm the result reached by the Court of Appeals, but for a different reason.
i
Plaintiff began an action under the Whistleblowers’ Protection Act in circuit court against Michigan State University and Professor Rudolph Band. She alleged that her contract as a research laboratory worker had not been renewed because she had complained to the university’s Environmental Affairs Office about conditions in a university laboratory. The circuit court granted a defense motion to strike the plaintiff’s jury demand.
Plaintiff filed an application for leave to appeal. The Court of Appeals granted the application and held that there is a right to a jury trial in an action brought under the act. 216 Mich App 561; 550 NW2d 544 (1996). It held, also, that the right to jury trial exists even when the defendant is a state entity. We granted defendants’ applications for leave to appeal. 456 Mich 865 (1997).
This Court is asked to review the Court of Appeals reversal of the trial court’s decision to deny plaintiff a jury. The trial court granted defendants’ motion to strike plaintiff’s jury demand because it determined that the act provided no right to a jury trial. Defendants pose a question of law, which we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
n
A
The Legislature designed the Whistleblowers’ Protection Act to protect the public from unlawful conduct by corporations and government bodies. The act protects the public by removing barriers to the reporting of violations of law by employees. Dolan v Continental Airlines, 454 Mich 373, 379; 563 NW2d 23 (1997). It defines “employees” to include essentially all workers except those in state classified civil service. MCL 15.361(a); MSA 17.428(1)(a). It governs “employers.” Under subsection 1(b), the state and its political subdivisions are to be considered employers for its purposes. MCL 15.361(b); MSA 17.428(l)(b). The act forbids employers from retaliating against employees who report, or are about to report, violations of the law. MCL 15.362; MSA 17.428(2).
Section 3 describes the steps to be taken by employees who believe that their employers have not complied with the act:
(1) A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act.
(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his or her principal place of business.
(3) As used in subsection (1), “damages” means damages for injury or loss caused by each violation of this act, including reasonable attorney fees. [MCL 15.363; MSA 17.428(3).]
Section 4 delineates the potential remedies that are available to a successful claimant:
A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate. [MCL 15.364; MSA 17.428(4).]
B
The foremost rule of statutory construction is to discern and give effect to the intent of the Legisla ture. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). See also Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). If statutory language is clear and unambiguous, lawmakers must have intended the meaning they clearly expressed, and the statute must be enforced as written. No further construction is required or permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). See also Western Michigan Univ Bd of Control v Michigan, 455 Mich 531; 565 NW2d 828 (1997).
i
There is no express provision in the Whistleblowers’ Protection Act specifying whether an action brought under it is to be tried before a jury or before a judge sitting without a jury. On the basis of this silence, the dissent would hold that no jury right is available in Whistleblowers’ Protection Act actions. The dissent suggests that the Legislature’s failure to specifically state that a jury right exists means the Legislature did not intend whistleblowers’ suits to be tried by a jury. We disagree both with the rule suggested by the dissent and the dissent’s analysis of the jury issue.
The rule suggested by the dissent is inappropriate in this case. It could be used alternatively to support a conclusion that the jury right is given, or that it has been withheld. As the dissent suggests, it is clear the Legislature knows how to expressly provide that an action is to be tried to a jury. It is also clear that the Legislature knows how to provide that an action is to be tried to a judge. For example, in the Employee Right to Know Act, the Legislature specifically stated that the court was to “award” damages. One could apply the dissent’s rule to the case at hand and legitimately reach the opposite conclusion from the dissent’s: given that the Legislature knew how to provide that the court should “award” damages, but did not, it did not intend for a judge to decide that issue.
Defendants argue that the Legislature’s use of “court” rather than “court or jury” is determinative. We disagree. What is important in understanding the Legislature’s intent is not that it used the word “court” instead of “jury,” but, rather, what it provided that the “court” should do. The Legislature described the court’s role in wpa actions in terms of “render[ing] a judgment,” not in terms of “awarding damages.” The expressions are not interchangeable; “awarding damages” and “render[ing] a judgment” have different meanings.
When a court renders a judgment, it is entering an order based on previously decided issues of fact. “Rendering judgment” does not mean the judge is making a determination of the entitlement of a party to an award of actual damages. Instead, it is the procedural step the judge takes after the factfinder has made that determination.
The difference in the terms is made clear by the statute itself. The wpa provides that the court is to “award attorney fees.” Deciding the entitlement to an award of attorney fees has traditionally been the job of a judge, not a jury. Because the act provides that the court should award attorney fees, it is clear that the Legislature intended that a judge should decide whether a party is entitled to fees, and in what amount.
2
The defendants in the case before us argue that the remedies available in § 4 of the act indicate that a judge, rather than a jury, should decide factual issues. Section 4 empowers a court to order any of several equitable remedies: reinstatement, back pay, reinstatement of fringe benefits and seniority, or a combination of them.
Defendants argue that the act provides for an equitable proceeding, only. They urge the Court to adopt the reasoning of a federal district court that construed all actions under the Ohio Whistleblowers’ Protection Act to be equitable proceedings. Rheinecker v Forest Laboratories, Inc, 813 F Supp 1307 (SD Ohio, 1993). Defendants and amici curiae urge that the use of the word “court” in § 3 of the act is determinative. This, too, comes from Rheinecker, because the court there opined that the legislature would have used the word “jury” had it intended a jury to hear claims under the act. However, as the court stated, its decision was based not only on the absence of the word “jury,” but, also, on the remedies that the act provided:
Furthermore, although perhaps not controlling, the Act specifically speaks in terms of the Court’s authority, not the jury’s. Thus, in the face of the enumerated equitable remedies and the language of the statute itself, the Court is not persuaded by the Plaintiff’s argument that the Act gives rise to a right to trial by jury. [813 F Supp 1314 (citation omitted; emphasis added).]
We do not find that the reasoning in Rheinecker regarding the Ohio act is persuasive authority for construing the Michigan act. The comparison to Rheinecker is inapposite, because our act provides for a legal remedy in the form of actual damages, while the Ohio act does not. In cases involving both equitable and legal issues, juries may decide factual issues relating to money damages, while judges retain the authority to determine the facts involving equitable remedies.
C
The existence of actual damages is significant because it distinguishes the Michigan act. Also, it indicates that the Legislature intended that the damages issue be tried by a jury, upon request. On its face, the language of the Whistleblowers’ Protection Act does not answer whether a jury right is available in an action brought under it. The statute neither explicitly requires nor attempts to forbid a jury. Where the language of a statute does not answer our questions, we must look behind its words to determine the Legislature’s intent. Therefore, it is necessary to broaden the scope of our inquiry to determine whether the Legislature intended to provide a jury right in suits brought under the act.
In Lorillard v Pons, the United States Supreme Court found a statutory right to a jury in the Age Discrimination in Employment Act (ADEA), 29 USC 624 et seq. One of the reasons it concluded that the adea contained the right to a jury was Congress’ inclusion of “legal” relief among the remedies available under the act. The Court explained how it inferred a statutory right to a jury from Congress’ inclusion of the words “legal relief”:
This inference [that the adea provides a statutory jury right] is buttressed by an examination of the language Congress chose to describe the available remedies under the ADEA. Section 7(b) empowers a court to grant “legal or equitable relief” and § 7(c) authorizes individuals to bring actions for “legal or equitable relief” (emphasis added). The word “legal” is a term of art: In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial. “[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.” We can infer, therefore, that by providing specifically for “legal” relief, Congress knew the significance of the term “legal,” and intended there would be a jury trial on demand to “enforc[e] . . . liability” .... [434 US 583 (citations omitted).]
We find the Court’s reasoning in Lorillard persuasive, and apply that reasoning to the whistleblowers’ act. Using this analysis, we conclude that the Legislature’s use of the term “actual damages” is significant. It indicates the Legislature’s intent to provide for a jury right in suits brought under the act.
While the ADEA provides a “legal” remedy, analogous language in the whistleblowers’ act provides for “actual damages.” “Actual damages” is also a term of art. Actual damages is a legal, rather than an equitable, remedy, and legal issues are traditionally tried to a jury.
Moreover, the notion that the Legislature might intend a jury trial without explicitly so stating is not new. More than one hundred and forty years ago, the Legislature provided a statutory cause of action for actual damages that contained the right to a jury. However, the act itself did not expressly provide for jury trials. It was an 1875 cause of action for the benefit of wives and children of certain persons to whom liquor was sold. It provided:
Every wife, child, ... or other person who shall be injured in person or property, means of support, by any intoxicated person, . . . shall have a right of action in his or her own name against any person or persons who . . . have caused . . . the intoxication and in any such action, the plaintiff shall have a right to recover actual and exemplary damages. [1875 PA 231, § 3 (emphasis added).]
In Friend v Dunks, this Court considered the appropriate form of action under the statute, stating, “The statute does not prescribe the form of remedy, so that the party seeking to recover under either of these provisions must resort to the common law for an appropriate form of action.” Id. at 27. The Court held that the cause of action for actual and exemplary damages was an action on the case, and was properly tried by a jury. Ironically, the Court relied on an Ohio Supreme Court decision that held under one of that state’s statutes, “ ‘What those damages are, in any given case, the legislature have seen proper to leave in these broad terms to a jury to determine.’ ” Id. at 32, quoting Mulford v Clewell, 21 Ohio St 191, 196 (1871).
Like Congress, when it adopted the Age Discrimination in Employment Act and included “legal remedies,” the Michigan Legislature created a cause of action in the wpa and provided for “actual damages.” As far back as 1877, the Court has held that a jury is proper where a statute creates a cause of action for actual damages without specifying before whom the action is to be tried. The Legislature is deemed to be aware of the meaning given to the words it uses, including the jury right that accompanies actual damages. Our holding recognizes that the Legislature imported into the wpa the meaning of actual damages, just as Congress had imported the jury right into the adea by providing for legal relief in Lorillard. We hold that, by including that term, the Legislature intended that the act contain a right to a trial by jury.
d
There is another aspect of the Supreme Court decision in Lorillard supportive of our conclusion that the whistleblowers’ act provides a right to trial by jury. In addition to Congress’ use of the term “legal remedy,” the Court’s conclusion in Lorillard was based on an historical analysis of the ADEA. Upon examining the adea and its history, the Court found that Congress intended to import into the ADEA the procedures and practices of the Fair Labor Standards Act. This contributed to the Court’s conclusion that the structure of the adea provided a right to a jury trial.
The Court noted that Congress had selectively adopted provisions from the flsa by choosing to include those consistent with the adea scheme, and to exclude those not appropriate for the adea. Id. at 578-580. The ADEA specifically stated that suits brought under it were to be tried in a manner similar to suits brought under the flsa.
“Long before Congress enacted the adea, it was well established that there was a right to a jury trial in private actions pursuant to the ELSA.” Id. at 580. Where it “adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law . . . .” Id. at 581. Congress had been selective in the provisions it chose to include in the ADEA. Hence, its inclusion of the remedy provisions indicated to the Court that Congress intended to provide a jury right in the ADEA. A similar historical analysis of the WPA supports our conclusion that the Legislature intended trials by jury under that act.
The language of the WPA has a long history traceable to the Fair Employment Practices Act, MCL 423.301; MSA 17.458(1), enacted in 1955. The FEPA was designed
to promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies based upon race, color, religion, national origin, or ancestry .... [Id,.]
The act created the Fair Employment Practices Commission, which it empowered to create rules to enforce the act’s requirements and to investigate and hold hearings on alleged violations.
The FEPA required that complaints be brought to the commission. If a person involved in a proceeding under the act was “aggrieved by a final order of the commission,” only then was the person entitled to appeal from the commissioner’s decision to the circuit court. MCL 423.308; MSA 17.458(8). There, the appeal was to be tried de novo. Subsection 10(c) of the act provided:
This act shall be so construed that [the constitutional guarantee of the right to jury trial] shall apply in any circuit court to any case or action arising under this act ....
In Lesniak v Fair Employment Practices Comm, this Court held that the de novo and jury trial provisions were in direct conflict with the act’s other provisions. Id. at 504. The act called on the courts to undertake the administrative task of hearings, violating the separation of powers. Id. at 505. The Court interpreted the de novo review provisions to operate, instead, as if on a grant of certiorari. Id. at 505-506.
The people of this state reenacted their constitution in 1963. One of the new provisions in the 1963 Constitution was Const 1963, art 5, § 29, which established the civil rights commission. In turn, the Legislature enacted enabling legislation that described the commission and outlined its duties. MCL 37.1; MSA 3.548(1). This act abolished the fepc and transferred all its powers and duties to the newly created commission.
The Civil Rights Commission legislation itself was repealed in 1976 and reenacted, MCL 37.2601; MSA 3.548(601). The 1976 Civil Rights Act provided the following additional remedies:
(1) A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.
(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business.
(3) As used in subsection (1), “damages” means damages for injury or loss caused by each violation of this act, including reasonable attorney fees. [MCL 37.2801; MSA 3.548(801).]
The Legislature included nearly identical language in the Whistleblowers’ Protection Act. It contains the wording from the CRA authorizing a suit in the circuit court:
(1) A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act.
(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, the county where the com plainant resides, or the county where the person against whom the civil complaint is filed resides or has his or her principal place of business.
(3) As used in subsection (1), “damages” means damages for injury or loss caused by each violation of this act, including reasonable attorney fees. [MCL 15.363; MSA 17.428(3).]
The Civil Rights Act also contained a specific provision dealing with attorney fees:
A court, in rendering a judgment brought pursuant to this article, may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate. [MCL 37.2802; MSA 3.548(802).]
The Whistleblowers’ Protection Act contains the language from this subsection of the Civil Rights Act in a single provision describing both the fees and remedies available under the act:
A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate. [MCL 15.364; MSA 17.428(4).]
In enacting the wpa, the Legislature included the enforcement provisions from the CRA in the new act. Although the act contains no explicit statement that CRA procedures should be followed in wpa actions, the Legislature’s use of identical language is meaningful. As the Supreme Court in Lorillard explained:
We are not unmindful of the difficulty of discerning Congressional intent where the statute provides no express answer. However, we cannot assume in the face of Congress’ extensive knowledge of the operation of the flsa, illustrated by its selective incorporation and amendment of the flsa provisions for the adea, that Congress was unaware that courts had uniformly afforded jury trials under the flsa. Nor can we believe that in using the word “legal,” Congress was oblivious to its long-established meaning or significance. We are therefore persuaded that Congress intended that in a private action under the adea a trial by jury would be available where sought by one of the parties. [Id. at 585.]
The cra and fepa both contained a right to a jury trial. We are persuaded that the Legislature intended suits under the wpa to be brought before a jury as well. We deduce from its inclusion of essentially identical enforcement provisions, an intent for wpa actions to be tried by a jury, as CRA actions are. We also find the inclusion of actual damages to be significant in light of the historical jury right available where actual damages are at issue. For these reasons, we hold that the wpa contains a statutory right to trial by jury.
E
Defendants argue that the Court of Appeals constitutional conclusion is contrary to Conservation Dep’t v Brown, 335 Mich 343; 55 NW2d 859 (1952). In Brown, this Court held that trial by jury was not required by the constitution in a statutorily created in rem forfeiture action brought against the defendant’s property under 1948 CL 300.14.
The statute involved in Brown provided for a summary forfeiture proceeding against the property seized. Then, as now, the right to a trial by jury was guaranteed to the extent it existed before enactment of the state constitution. “ ‘Such summary proceedings as were known to the common law were not triable by a jury as a matter of right.’ ” Id. at 348, quoting State v Kelly, 57 Mont 123, 130; 187 P 637 (1920). Therefore, we held that the right to a jury trial in summary proceedings under that act was not constitutionally guaranteed.
Our decision in Brown does not control the present case because we do not need to reach the constitutional issue involved there. The jury right defined is in the nature of a floor, not a ceiling. Brown did not hold that the constitution forbade trials by jury, only that the constitution did not require them and the statute in question did not provide for them.
Consistent with civil actions generally, the right to a trial by jury under the Whistleblowers’ Protection Act depends on the nature of the claim made and the relief sought. Where (1) an action by its nature is not jury barred, (2) the claim is for money damages, (3) the Legislature provided for it to be brought in circuit court, and (4) the Legislature did not deny the right to a jury, the plaintiff properly may demand a trial by jury.
m
Having found that plaintiff may properly demand a jury in her suit under the act, we now decide whether the existence of a state defendant changes this result. Defendant MSU argues that, even if a jury right exists generally under the act, MSU is immune from suit before a jury because it is an arm of the state.
Defendant has confused the test we use to determine whether the state is immune from liability with the test used for determining whether the state is immune from suit. As the Court noted in Ross v Consumers Power Co (On Rehearing), the state’s sovereign immunity from liability and its immunity from suit are not the same.
Defendant MSU and amici curiae argue that the state’s sovereign immunity from a trial by jury can be waived only by “express statutory enactment or by necessary inference from a statute.” They are incorrect. The quoted language comes from this Court’s opinion in Mead v Public Service Comm, 303 Mich 168, 173; 5 NW2d 740 (1942). In Mead, we examined portions of the motor vehicle law, 1929 CL 4724. In ruling on Mead, we overturned one of our own prior decisions, Miller v Manistee Co Bd of Rd Comm’rs, 297 Mich 487; 298 NW 105 (1941). We held that Miller had given the language of the motor vehicle law too broad a construction when it extended liability to the state. Mead, supra at 172-173.
In Miller, the Court had construed the motor vehicle law to waive the state’s immunity from liability as the owner of a vehicle. Id. at 490. However, the motor vehicle law made only the driver of a vehicle liable. The act provided:
“The provisions of this act applicable to the drivers of vehicles upon the highways, shall apply to the drivers of all vehicles owned or operated by this State or any county, city, town, district or any other political subdivision of the State subject to such specific exceptions as are set forth in this act.” [Mead, supra at 172-173, quoting 1929 CL 4724.]
In overruling Miller, the Court in Mead explained:
It is sufficient to note that the above-quoted portion of the statute by its express terms affects only the duties and liabilities of drivers. It does not enlarge or modify the duties or liabilities of the State as owner of a motor vehicle. [Id. at 173.]
The motor vehicle law did not, by its express terms or by necessary implication, provide liability for the state as an owner. Therefore, we held that the state had not waived its immunity to liability. Id. at 173-174.
The Whistleblowers’ Protection Act satisfies the Mead test for waiver of immunity from liability. The Legislature expressly applied the act to the state by including the state and its political subdivisions in the definition of “employer.” See MCL 15.361(b); MSA 17.428(l)(b). Because the state is expressly named in the act, it is within the act’s coverage.
However, Mead does not provide a test for determining whether a jury right exists against the state. The Court of Appeals dissent cited Mead for the proposition that the state’s immunity from suit before a jury could be waived only by express statutory enactment or by necessary inference. 216 Mich App 590 (O’Connell, J., dissenting). However, Mead does not concern the state’s immunity from suit. Rather, the state was subject to suit in the Court of Claims, and we held merely that it was immune from liability under the act involved in that case. As we noted above, immunity from suit and immunity from liability axe distinct mattexs. See Ross, supra at 601.
Thus, the language from Mead to the effect that the state waives immunity only by express statutory enactment or by necessary inference applies only to the state’s immunity from liability. It has no application to the state’s immunity from suit, or to immunity from trial before a jury, which is at issue here.
The rule for immunity from suit was recognized by this Court in Ross: “ ‘The State, as sovereign, is immune from suit save as it consents to be sued, and any relinquishment of sovereign immunity [from suit] must be strictly interpreted ....’” Id. at 601, quoting Manion v State Hwy Comm’r, 303 Mich 1, 19-21; 5 NW2d 527 (1942).
The Legislature created the Court of Claims in 1939, permitting the state to be sued before a judge. Ross, supra at 600. The broad language of the act creating the Court of Claims mandates that suits against the state for money damages are typically brought in that forum. Id. See MCL 600.6419; MSA 27A.6419.
As Ross makes clear, the Legislature was free when enacting the Whistleblowers’ Protection Act to waive the state’s immunity from suit. Ross, supra at 601. Section 3 of the act allows suit to be brought in the circuit courts. The statute specifically includes the state among the bodies to be regulated by defining “employers” subject to the act to include the state and its political subdivisions. Nothing in the act suggests that the state is not to be treated the same as a business for purposes of the act’s protection of non-civil service employees like the plaintiff. We find it significant that the Legislature chose to subject the state to suit in the circuit court rather than in the Court of Claims.
The express language of the act indicates that the Legislature intended to submit the state to the jurisdiction of the circuit court. As indicated above, the court rules govern in civil actions in circuit court. They provide that legal actions for money damages are to be tried by a jury upon request. Hence, it necessarily follows, the Legislature consented that the state may be tried by a jury in Whistleblowers’ Protection Act cases.
We uphold the result reached by the Court of Appeals on the question whether the case against msu may be tried by a jury. We find that MSU is subject to a trial by jury under the Whistleblowers’ Protection Act as provided by the court rules, generally. Plaintiff is entitled to a jury in her suit against both defendants.
IV
Because the right to jury trial exists as a matter of legislative intent under the Whistleblowers’ Protection Act, it is unnecessary for us to reach the question whether such a right is preserved by the Michigan Constitution. Hence, we vacate the reasoning in the Court of Appeals opinion, while affirming the result. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Cavanagh, and Boyle, JJ., concurred with Kelly, J.
See Dolan v Continental Airlines, 454 Mich 373, 378, n 9; 563 NW2d 23 (1997), quoting the legislative analysis of the act:
Violations of the law by corporations or by governments and by the men and women who have the power to manage them are among the greatest threats to the public welfare. [Citation omitted.]
The pertinent portion of the Right to Know Act, MCL 423.511; MSA 17.62(11), states:
[T\he court shall award an employee prevailing in an action pursuant to this act the following damages:
(a) For a violation of this act, actual damages plus costs.
(b) For a wilful and knowing violation of this act, $200.00 plus costs, reasonable attorney’s fees, and actual damages. [Emphasis added.]
A judge can also render a judgment by making a decision on the case as a matter of law. See, for example, MCL 73.17; MSA 5.1445 (“If judgment is not rendered ... on account of errors of law or defects in the proceedings and if the appeal is not dismissed, the parties may proceed to trial by jury”).
As the following statutes illustrate, rendering a judgment is merely the formal step of entering an order granting already-determined relief. It is not synonymous with “awarding damages.” See, for example, MCL 128.161; MSA 8.151, which provides “the said circuit judge shall . . . divide the sum awarded by said jury between the claimants . . . rendering against said township a separate judgment for each of the amounts so awarded.” (Emphasis added.) MCL 128.156; MSA 8.146 (The “court shall . . . render judgment for the sum specified in the certificate signed by [the] jury”).
Section 3 of the act provides that a court may order one or a combination of the remedies available, as appropriate.
In this regard, we note that, under MCR 2.509(D), the court, on motion or its own initiative, may use a jury in an advisory capacity to try equitable issues. The parties may consent to have a jury decide issues that otherwise are not triable to a jury as a matter of right. Also, under subrule B, if a party has a right to a trial by jury but does not demand it, the court has discretionary authority to order a jury trial anyway.
Moreover, as explained by the Court of Appeals in Dutka v Sinai Hosp of Detroit, 143 Mich App 170, 173-174; 371 NW2d 901 (1985):
The parties have a constitutional right in Michigan to have equity claims heard by a judge sitting as a chancellor in equity. Abner A Wolf, Inc v Walch, 385 Mich 253; 188 NW2d 544 (1971). If a plaintiff seels only equitable relief, he has no right to a trial by jury. Robair v Dahl, 80 Mich App 458, 460-462; 264 NW2d 27 (1978). However, in this case, the plaintiff sought both equitable relief in the form of specific performance and legal relief in the form of damages. In this situation the plaintiff had a right to have a jury hear his damage claim.
These cases, which allow a chancellor to award consequential damages along with equitable relief, do not bar plaintiff’s demand for a jury where legal remedies are sought along with equitable relief. The cases defendant relies on only suggest that in some instances a chancellor may also award money damages in fashioning the appropriate remedy. The cases do not bar a jury trial on legal claims when it has been properly demanded. [Emphasis added.]
See also B & M Die Co v Ford Motor Co, 167 Mich App 176; 421 NW2d 620 (1988).
434 US 575; 98 S Ct 866; 55 L Ed 2d 40 (1978).
The dissent incorrectly asserts that Lorillard does not support our holding. It apparently concludes that we must find no jury right under the wpa because the Supreme Court, in Feltner v Columbia Pictures Television, Inc, 523 US _; 118 S Ct 1279; 140 L Ed 2d 438 (1998), found no statutory jury right under the Copyright Act. Two things, in particular, distinguish Feltner from the present case. First, the wpa, on its face, leaves the question of a statutory jury right open, while the Copyright Act required a judge to hear the case. Second, the dissent fails to point out that the plaintiff in Feltner was suing for statutory damages, while our holding is premised on the availability of actual damages under the wpa.
Also, the dissent passes over the fact that Feltner recognized that Lorillard relied both on the reference to the adea as well as the existence of a "legal” remedy. Id. at 118 S Ct 1284.
37 Mich 25 (1877).
Id. at 32. The Court also determined that damages for mental anguish, loss of society, and the like were available under the statute, but stressed that care had to be taken to avoid damages that were too remote. Id. at 30-31. The jury, it seemed, was the proper body to so limit the plaintiffs’ recovery:
This whole question of permitting all the facts and circumstances in this class of cases to be laid before the jury, under such instructions and advice from the court as would tend to prevent the allowance of such as might be merely possible, or too remote and fanciful in their character to be safely considered as the result of the injury .... [Id. at 32.]
This statement specifically pertains to the admission of evidence before the jury rather than a jury right. However, the Court’s discussion leaves no room for doubt that the case was to go before the jury as a matter of course.
We note that the Seventh Amendment does not apply to the states, so it does not bind our conclusion on this issue. However, the holding in Lorillard did not recognize a constitutional right to a jury under the adea. Instead, the Court relied on Congress’ use of the term “legal” as an indication of what it intended under the act. Because “legal” remedies have been held to be constitutionally triable by a jury, and Congress used that word, it showed Congress’ intent to provide for trial of the legal issues by a jury.
29 USC 201 et seq.
In particular, each act had two enforcement mechanisms. The secretary of labor could sue to force compliance with the acts, or a private litigant could bring a cause of action for legal and equitable relief. Lorillard, supra at 578.
364 Mich 495; 111 NW2d 790 (1961).
Art 5, § 29 provides in part:
There is hereby established a civil rights commission .... It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. The legislature shall provide an annual appropriation for the effective operation of the commission.
Repealed by 1976 PA 453, § 804.
“Cases in state courts brought under both [cra] and fepa have been and currently are being tried by juries.” Lambert v Rockwell Int’l Corp, 518 F Supp 665, 667 (ED Mich, 1981). See, for example, Matras v Amoco Oil Co, 424 Mich 675; 385 NW2d 586 (1986); Howard v Canteen Corp, 192 Mich App 427; 481 NW2d 718 (1992).
Id. at 346. Const 1908, art 2, § 13 provided: “The right of trial by jury shall remain . . . .”
The Court there noted that the action in question was “ ‘a new proceeding, and therefore, if jury trial cannot be had in it, that method of trial is not cut off, but is simply not given.’ ” Id. at 350, quoting State Tax-Law Cases, 54 Mich 350, 363; 20 NW 493 (1884).
We note that MCR 2.509(C) describes the sequence of trial when some issues are to be tried by the jury and others by the judge. It expressly provides that the constitutional right to a trial by jury must be preserved “according to the basic nature of every issue for which a demand for jury trial has been made under MCR 2.508.” Subrule D, which pertains to advisory juries and juries that are convened by consent, also refers to actions that are not triable by a jury by right “because of the basic nature of the issue.”
420 Mich 567, 601; 363 NW2d 641 (1984).
Mead stands for the proposition that “the common-law doctrine of sovereign immunity from tort liability could not be waived or abrogated except by statute.” Ross, supra at 601.
See, for example, Barbour v Dep’t of Social Services, 172 Mich App 275, 280; 431 NW2d 482 (1988):
In most types of actions, the state cannot be tried in front of a jury because the Legislature requires those actions to be tried in the Court of Claims, where cases are heard without a jury ....
Had the Legislature intended all civil rights claims against the state to be tried without a jury, it would seem that it would have conferred jurisdiction over such suits upon the Court of Claims, not the circuit court. | [
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Mallett, C.J.
We granted leave in this case to determine whether the remainder beneficiaries of an inter vivos trust are entitled to a jury trial in probate court of the issues whether the trustee acted in good faith, with ordinary diligence, and with prudence while maintaining the trust corpus. We hold that the remainder beneficiaries are entitled to a jury trial on all factual issues except the issue of the trustee’s prudence, because that determination is properly left to the probate court. The Court of Appeals is reversed in part and this case is remanded to the Kent County Probate Court for a jury trial on any remaining factual issues.
i
On January 10, 1939, a trust agreement was established between Frances Williams Messer, the grantor, the Michigan Trust Company, as the corporate fiduciary, and Maurice A. Lambie, as the individual trustee. Old Kent Bank, the appellant herein, is the successor corporation to the Michigan Trust Company and was the sole trustee during the period relevant to this lawsuit.
An inter vivos trust was established for the benefit of the settlor’s son, John Messer, to provide income during his lifetime. The trust also provided that upon John Messer’s death, the trust was to terminate and the remainder of the trust corpus was to be divided among his three children. John Messer died in 1991 and his children, the appellees herein, are the remainder beneficiaries.
Frances Messer initially funded the trust with notes, mortgages, bonds, stocks, and cash in the amount of $107,468.61. Part of the stock funding included 1,085 shares of E. Tyden A B, Inc., valued at nearly $57,000. The Tyden Corporation was founded by Frances Messer’s father and a Mr. Tyden. The trust agreement contained a restriction that prohibited the trustee from selling any Tyden stock without the prior consent of Frances Messer’s son-in-law. When the son-in-law died, the absolute restriction was replaced by a provision in the trust agreement in which the settlor expressed a nonbinding preference for the retention of her industrial stocks.
Between 1981 and 1989, in five separate transactions, the trustee sold portions of the Tyden stock back to the corporation, allegedly to reduce the proportion of trust assets represented by the Tyden stock. Evidently, the price of each sale was dictated by Tyden and ranged from thirty-five to sixty percent below the book value of the stock.
In April, 1991, John Messer died. The trustee soon thereafter distributed the remaining assets to John Messer’s children, the remainder beneficiaries, pursuant to the terms of the trust agreement. The trustee also rendered a final accounting, petitioned the Kent County Probate Court to approve the accounting, and requested to be discharged from further obligations in relation to the trust.
The remainder beneficiaries objected to the trustee’s accounting and claimed the trustee should be surcharged for imprudent management of the trust assets. In addition to filing their objections, the remainder beneficiaries filed a jury demand as well. The trustee argued that the remainder beneficiaries had no right to a jury trial because inter vivos trusts were based on equitable principles and, therefore, no right to a jury trial existed. The probate court struck the jury demand because it held factual issues in an equitable proceeding were governed by the laws of equity and therefore were to be resolved by the trial court as the trier of fact. Following a bench trial, the probate court ruled that the trustee acted with reasonable prudence in handling the Tyden stock portion of the trust assets. It then entered an order both approving the trustee’s final accounting and granting its request to be discharged.
The remainder beneficiaries appealed and claimed the probate court erred by denying their demand for a jury trial and by not finding error in the trustee’s management of the trust. The Court of Appeals reversed the decision of the probate court and remanded the case for a jury trial. It held, under In re Allwardt Estate, 278 Mich 80; 270 NW 223 (1936), that trust beneficiaries have the right to a jury trial regarding whether the trustee acted imprudently when dealing with trust assets. Applying In re Allwardt Estate to the facts of this case, it concluded that the remainder beneficiaries provided sufficient evidence to allow a jury to decide whether the trustee acted imprudently. The trustee appealed, and we granted leave.
n
The first Probate Code of this state was enacted by the Legislature in 1838, the year after the state was founded. During the first one hundred and forty years after its enactment, the Probate Code was the subject of several major revisions and modifications. Some of these revisions, both the remainder beneficiaries and the trustee contend, determine the outcome of this case. In order to fully comprehend the parties’ arguments as they relate to the issues in this case, it is necessary to understand the Probate Code both as it existed in 1838, and as it exists today following its various amendments.
The Probate Code in its original form, 1838 RS, part 3, tit 1, chap 4, § 3, provided jurisdiction in the probate court for all issues relating to
the probate of wills, and to grant administration of the estates of all persons deceased, . . . and of all who shall die without the state, leaving any estate to be administered within such county; and also to appoint guardians to minors and others in cases prescribed by law.
This grant of jurisdiction encompassed only testamentary trusts, decedent’s estates, and guardian-ships. Inter vivos trusts, because they were not statutorily created, but were instead created by common-law principles, were not subject to the jurisdiction of the probate court. Section 21 provided for appeals from the probate court to the Supreme Court. Section 31 provided that if, during such an appeal, “any question of fact shall occur, that is proper for a trial by jury,” the Supreme Court was to order a jury trial of those issues.
A similar provision was found in the Compiled Laws of 1857. However, one substantial change did occur. Under 1857 CL 3631, any appeal from a probate court was no longer to be filed in the Supreme Court, but instead was to be filed in the circuit court. 1857 CL 3635 provided a right to a jury trial de novo regarding factual issues appealed from the probate court:
When such certified copy shall have been filed in the Circuit Court, with the evidence of filing the requisite bond, and of giving notice as aforesaid, such Court shall proceed to the trial and determination of the question according to the rules of law; and if there shall be any question of fact to be decided, issue may be joined thereon, under the direction of the Court, and a trial thereof had by jury.
Hence, after 1857, the circuit court, not the Supreme Court, had jurisdiction over an appeal from a disputed issue of fact as it related to a testamentary trust. No other substantive changes to the Probate Code that involved questions of fact occurred until 1971.
In 1970, the Legislature enacted the precursor to what is now MCL 600.857(1); MSA 27A.857(1). The current section provides:
If a party to a proceeding in the probate court would have had a right before January 1, 1971 to demand a jury to determine a particular issue of fact in the circuit court upon a de novo appeal from that proceeding to the circuit court, that party shall on and after January 1, 1971 have the right to demand a jury to determine that issue of fact in the probate court proceeding.
This amendment applied only to testamentary trusts and not to inter vivos trusts. As is evident, the one change in the section was to extend the right to jury trials regarding questions of fact determinable in the circuit court to the probate court.
Finally, in 1978, the Revised Probate Code, MCL 700.1 et seq.; MSA 27.5001 et seq., was enacted. Pursuant to MCL 700.805; MSA 27.5805, for the first time, the probate court’s jurisdiction was extended to include inter vivos trusts. MCL 700.805(1); MSA 27.5805(1) provides:
The probate court has exclusive jurisdiction of proceedings initiated by interested parties concerning the internal affairs of all trusts. Proceedings which may be maintained under this section are those concerning the administration and distribution of a trust, the declaration of rights, and the determination of other matters involving trustees and beneficiaries of a trust. [Emphasis added.]
This is significant because, as noted above, before this time, the probate court had jurisdiction over testamentary trusts only, not over inter vivos trusts. By combining the two, the Legislature granted exclusive jurisdiction to the probate court over the internal affairs of all trusts. The Legislature also retained the provision that allowed jury trials in probate courts. MCL 600.857(1); MSA 27A.857(1).
With this background in mind, we now apply the law, as the Legislature intended when it enacted the Revised Probate Code, to the facts of this case.
in
A
We wish to note that both parties have provided compelling arguments to support their respective positions. However, because all types of trusts are now governed by statute, we must, in reaching our decision, apply the statute as written. It is well established that the primary goal of judicial interpretation of statutes is to give effect to the intent of the Legislature. In re Certified Question, 433 Mich 710, 722; 449 NW2d 660 (1989). It is also well established that the Legislature is presumed to be familiar with the rules and that provisions of a statute must be construed in light of other provisions of the statute to carry out the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 (1993).
The standard of care that trustees in this state are held to is the “prudent person” rule. MCL 700.813; MSA 27.5813. A trustee is expected to “observe the standards in dealing with the trust assets that would be observed by a prudent man dealing with the property of another, and if the trustee has special skills or is named trustee on the basis of representations of special skills or expertise, he is under a duty to use those skills.” Id. In addition, this Court has held prudence means acting with care, diligence, “integrity, fidelity and sound business judgment.” In re Buhl Estate, 211 Mich 124, 132; 178 NW2d 651 (1920); In re Green Charitable Trust, 172 Mich App 298; 431 NW2d 492 (1988).
Prior decisions of this Court have held that the issue of prudence has never been a question of fact for the jury, even in cases involving testamentary trusts. In In re Allwardt Estate, supra, we held that the determination of the administrator’s good faith should have been submitted to the jury. We also noted that it was improper to submit issues of a trustee’s or an administrator’s propriety and discretion to the jury. Id. See also Wisner v Mabley Estate, 70 Mich 271; 38 NW 262 (1888), and Gott v Culp, 45 Mich 265; 7 NW 767 (1881).
In Wisner, the executor of an estate filed a motion in the probate court for payment of “extraordinary services, involving unusual difficulty and responsibility, not required in the common course of duties in the settlement of an estate.” Id. at 273-274. Evidently, the executor deemed the extra services essential to the maintenance of the trust. The probate and circuit judges ordered payment for the services, and the devisee of the will appealed to this Court. She claimed that the executor was not deserving of the additional compensation and a jury should have determined the issue. We disagreed. In support of our decision, we stated:
There was no error in the ruling denying the motion for a jury. In this class of cases, in all matters where the executor or administrator is required by the statute to use his discretion as to what he shall do, the question is not one for the jury, nor is the discretionary power of the court to be exercised, to be passed upon by them. [Id. at 277 (emphasis added).]
In reaching the result in that case, we relied on Gott v Culp, supra. In Gott, the ward of a trust challenged her guardian’s accounting. She specifically alleged that the guardian failed to invest her money properly, overcharged for expenses, and, generally, had disregard for his duty. Id. at 268-269. We disposed of these issues in the following manner:
[A guardian’s accounting] involves not merely the ordinary items of debit and credit, but also considerations as to the propriety of charges and investments and as to the allowance of compensation, with which a jury cannot meddle.
* * *
Such questions of discretion in a case like this, might include the responsibility of the guardian for failure to keep investments, the necessity or propriety of exceeding the income, the rate of compensation, and some others. [Id. at 275-276 (emphasis added).]
Hence, it has been established in this state, at least as far back as 1881, that the issue of a trustee’s or other fiduciary’s prudence is not a question for a jury but, instead, a question for the probate court to decide.
The issue whether the trustee’s prudence is properly decided by a jury or the probate court, as this Court’s research has revealed, has not been widely addressed. Guidance on this topic, from case law from this and other jurisdictions, from various annotated resources, and from legal treatises, is sparse. However, one jurisdiction that has recently addressed this issue is New York.
In In re Janes Estate, 90 NY2d 41, 47-48; 681 NE2d 332 (1997), the New York Court of Appeals, the highest appellate court in that state, held that the coexecutor in that case acted imprudently when it failed to diversify the stock portfolio of the trust. The beneficiaries of the trust objected to the coexecutor’s failure to divest the trust of high concentrations of Eastman Kodak Company stock that began to rapidly lose value. The New York court provided the following analysis when it addressed the issue of a trustee’s prudence:
No precise formula exists for determining whether the prudent person standard has been violated in a particular situation; rather, the determination depends on an examination of the facts and circumstances of each case .... In undertaking this inquiry, the court should engage in “ ‘a balanced and perceptive analysis of [the fiduciary’s] consideration and action in light of the history of each individual investment, viewed at the time of its action or its omission to act’ ” . . . . And, while a court should not view each act or omission aided or enlightened by hindsight . . . , a court may, nevertheless, examine the fiduciary’s conduct over the entire course of the investment in determining whether it has acted prudently .... Generally, whether a fiduciary has acted prudently is a factual determination to be made by the trial court .... [Id. at 50 (emphasis added).]
Hence, in New York, in light of the above, the determination whether a trustee acted imprudently is a factual determination for the trial court. This rationale has been followed in other jurisdictions as well. See In re Cooper Estate, 81 Wash App 79; 913 P2d 393 (1996); In re Ames Estate, 152 Wis 2d 217, 230-233; 448 NW2d 250 (1989) (holding that the prudent-person test is a mixed question of law and fact; what the trustee did or did not do is a question of fact, and what a reasonable trustee would have done is a legal question, both properly determined by the trial court). We believe the preceding analysis utilized by our sister states applies equally to trustees in our state. We now apply that analysis to the facts of this case.
B
The Court of Appeals in the instant case examined the “nature of the action” to determine whether a party “would have been traditionally afforded a right to a trial by jury.” Unpublished opinion per curiam of the Court of Appeals, issued June 25, 1996 (Docket No. 174624), slip op at 2. Its review indicated that, historically, jury trials were not afforded in equitable proceedings. Id. However, it indicated that it felt compelled to follow this Court’s decision in In re Allwardt Estate, supra, and remanded this case to the probate court for a jury trial with respect to the prudence issue.
In In re Allwardt Estate, the administrator of an intestate estate filed an accounting to which the heirs of the estate objected and charged the administrator with failure and neglect of its duty in handling the affairs of the estate. 278 Mich 82. The heirs also requested that the administrator be surcharged for all losses suffered by the estate as a result of the administrator’s failure to sell stock that rapidly lost value. They also cited an alleged lack of good faith on the part of the administrator that led to the decline of the value of the estate itself. Id. In reaching our decision that the heirs had a right to a jury trial regarding the issue of good faith, we relied on 1929 CL 15968, which provided for jury trials on appeal to the circuit court on questions of fact.
The trustee urges us to reverse the decision of the Court of Appeals because it believes In re Allwardt Estate is distinguishable from the present case and therefore should not have been relied on by the Court of Appeals. First, the trustee asserts that because the issue in In re Allwardt Estate involved a decedent’s estate and not an inter vivos trust, the Court’s analysis does not apply here. Next, it maintains that because inter vivos trusts originally were creatures of equity, the 1970 revision of the Probate Code did not and could not extend the right to a jury trial to inter vivos trusts because, before 1971, inter vivos trusts were not within the jurisdiction of the probate court. Finally, the trustee argues alternatively that In re Allwardt Estate held that the right to a jury trial exists only with respect to a trustee’s good faith and not a trustee’s prudence.
The remainder beneficiaries contend that In re Allwardt Estate was correctly decided and, therefore, they are entitled to a jury trial regarding all factual issues related to the trustee’s duty to the trust. In support of their argument, the beneficiaries maintain that when the Legislature enacted the Revised Probate Code in 1978, it included MCL 600.857(1); MSA 27A.857(1), a provision that allowed jury trials in the probate court with regard to questions of fact that was substantially similar to MCL 700.45d(l); MSA 27.3178(45.4)(1), its 1970 counterpart. Hence, when the 1978 code is read in its entirety, the beneficiaries claim it is clear they are entitled to a jury trial regarding questions of fact in any type of trust proceeding, not just with respect to issues of fact relating to testamentary trusts. They claim that the factual issues subject to a jury trial include whether the trustee acted in good faith, with ordinary diligence, and with prudence while performing its duties in relation to the trust.
c
The remainder beneficiaries argue that when the Legislature enacted MCL 700.805(1); MSA 27.5805(1), which provided the probate court with exclusive jurisdiction over the internal affairs of all trusts, it also abolished any distinction between types of trusts. Otherwise stated, the former distinction between inter vivos trusts, once governed by the law of equity, and testamentary trusts, governed by statute, no longer exists. We agree.
The trustee contends that under MCL 600.857(1); MSA 27A.857(1), unless a party had the right to demand a jury trial on appeal on factual issues before 1971, that party does not have that right now. It continues its analysis by stating that because before the 1978 revisions of the Probate Code, probate courts did not have jurisdiction over inter vivos trusts, no jury trial is available to the remainder beneficiaries in this case. We disagree because such an argument does not encompass the Legislature’s intent underlying combining all trust issues in the probate court. When the Legislature included inter vivos trusts within the jurisdiction of the probate court, it included the jury trial provision as well. It easily could have omitted the jury trial provision when it revised the Probate Code in 1978. We think it telling that it did not.
All previous distinctions regarding the right to a jury between trusts created by equity and trusts created by law were abolished when the Legislature enacted MCL 700.805(1); MSA 27.5805(1). As noted above, the significance of MCL 600.857(1); MSA 27A.857(1), is that only those parties who, before the amendment, would have had the right to a jury trial on appeal regarding issues of fact in the circuit court, now have the right to a jury trial with respect to factual issues in the original proceeding, i.e., in the pro bate court. This, however, does not change the fact that, almost since the beginning of this state’s jurisprudence, the issue of a trustee’s prudence has been deemed by this Court to be a question to be determined by the trial court. Simply because an issue may arise from a trust that was historically based on equity or law is no longer of any significance.
Today’s holding, we believe, has practical significance as well. The probate court, not a jury, is in the best position to make the determination whether a trustee has breached its duty under the prudent-person rule. In a situation such as this, where the language of the statute, MCL 700.813; MSA 27.5813, provides broad discretion to a trustee, any determination with respect to a breach of that decision-making process is best handled by the probate court. The court has the added benefit of day-to-day experience that makes it uniquely qualified to make such reasoned determinations.
The foregoing, however, should not be interpreted to be an attack on the jury process or an attempt to eliminate juries from sitting in the probate courts of this state. Indeed, the Legislature has seen fit to allow juries to resolve some factual disputes in this forum for nearly one hundred and fifty years. It is this Court’s opinion, however, consistent with both case law and statutory mandate, that some issues are best left to the trial court for determination and not to a jury. The issue of a trustee’s prudence in maintaining trust assets is one of those instances.
IV
In conclusion, we hold that the issue of a trustee’s prudence is a question for the trial court. All other factual issues are properly submitted as jury questions. This decision is based not only on case law of this state, but is in accord with the policy behind the Legislature’s enactment of MCL 700.805(1); MSA 27.5805(1) as well. With the enactment of that section, and by retaining the jury trial provision of MCL 600.857(1); MSA 27A.857(1), the Legislature abolished all distinctions previously associated with inter vivos and testamentary trusts, allowing probate courts jurisdiction over all trusts. The issue of a trustee’s prudence, however, has traditionally been an issue for the trial court to decide, and this notion was not affected by the enactment of MCL 700.805(1); MSA 27.5805(1).
For the foregoing reasons, we reverse the decision of the Court of Appeals in part and remand the case to the Kent County Probate Court for a jury trial regarding any remaining factual issues.
Brickley, Cavanagh, and Kelly, JJ., concurred with Mallett, C.J.
The record indicates the individual trustee, Maurice Lambie, died before any of the events that gave rise to this lawsuit. Old Kent Bank has since succeeded the Michigan Trust Company as sole trustee.
An inter vivos trust has been defined as follows:
Trust created by an instrument which becomes operative during the settlor’s lifetime as contrasted with a testamentary trust which takes effect on the death of the settlor. [Black’s Law Dictionary (6th ed), p 1511.]
E. fyden A B, Inc., is the successor corporation to the Viking Corporation, previously known as International Seal and Lock.
The Tyden Corporation stock was classified as “founder’s stock” and, evidently, had sentimental value to Frances Messer. Hence, a provision was placed in the trust agreement that delineated the specific treatment it was to be given by the trustees.
The Court of Appeals reversed the probate court’s order, but did so reluctantly, explaining, “We do so only because we are required to follow Supreme Court precedent. We urge the Supreme Court to reconsider its prior holdings on this issue which we consider to be wrongly decided.” Unpublished opinion per curiam, issued June 25, 1996 (Docket No. 174624), slip op at 1.
455 Mich 868 (1997).
Defined as:
Trust created within a will and executed with the formalities required of a will .... A trust which does not take effect until the death of the settlor. [Black’s Law Dictionary (6th ed), p 1513.]
The current section is substantially similar to the original section, MCL 700.45d(1); MSA 27.3178(45.4)(1), which was enacted by 1970 PA 143.
Courts have also imposed fiduciary duties of honesty, loyalty, restraint from self-interest, and good faith. Hertz v Miklowski, 326 Mich 697; 40 NW2d 452 (1950).
MCL 700.45d(1); MSA 27.3178(45.4)(1), currently cited as MCL 600.857(1); MSA 27A.857(1).
We believe the public policy reasons underlying this rule to be sound as well. To allow a jury to determine the issue would potentially subject a trustee to the whim of every impatient or unsatisfied beneficiary who is displeased with the trustee’s business decisions. That prospect is one that will benefit neither the trustees nor the beneficiaries of this state. | [
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Carr, J.
Defendants were charged in Saginaw county with the offense of assault and battery committed on the person of one Ernest Schuler on August 15,1958. They were convicted in the municipal court of the city of Saginaw where they were tried before the judge of said court without a jury. They appealed to the circuit court, of the county, and on jury trial were represented by counsel.
■ Verdict was returned finding both defendants guilty as charged, and on February 13, 1959, they were placed on probation for a period of 18 months from and after the date of the order which provided, in addition to the usual statutory conditions, that each should pay a fine of $50 and make restitution in the sum of $107.62. The court further reserved the right to require each defendant to be imprisoned in the county jail or in the Detroit House of Correction for not more than 6 months as a condition of probation, such imprisonment to be served at such time, or intervals, as the court in its discretion might require, subject, however, to the provision that the aggregate jail term should not exceed the maximum period of imprisonment which might have been imposed by law for the offense.
On leave granted defendants have appealed to this Court, claiming that in the course of their trial in circuit court prejudicial errors occurred of such nature as to entitle them to a new trial. In their behalf such a motion was made before the trial judge and was denied. The testimony in the case was conflicting. The complaining witness, Ernest Schuler, was the father-in-law of defendant Smith, and apparently there had been some unfriendly feelings between them. The offense in question was charged as committed at a certain tavern within the county to which Mr. Schuler went late in the afternoon. According to his testimony he did some drinking there. During the evening he noticed the defendants sitting together at a table, and directed the bartender to give them drinks. Defendants refused the proffered hospitality. Later Schuler went to their table and some conversation occurred, apparently not of a friendly nature.
The complaining witness testified that the defendants cursed him and, in turn, they claimed, as witnesses in their own behalf, that Schuler called them vile names. Thereafter the parties left the tavern and an affray occurred outside, defendants asserting that Schuler had swung at Smith with a beer bottle and that the latter had struck Schuler and knocked him down, while Schuler asserted that defendants were responsible for initiating the attack on him. The claims of defendants were corroborated to a certain extent by 2 eyewitnesses in their behalf. Schuler was the sole witness' for the prosecution as to the alleged assault.
Defendants’ first claim of error is predicated on the action of the trial judge in limiting the length of argument to the jury. Apparently following the closing of the proofs the judge stated that counsel might have 15 minutes on a side. Counsel for defendants was interrupted at the end of 15 minutes of argument, and after an additional 5 minutes was required to stop his address to the jury. At the time counsel protested that he was not able to finish, and it is now insisted that the action of the judge in enforcing the limitation constituted prejudicial error in view of the provision of circuit Court Rule No 37, § 3 (1945), declaring that:
“Counsel upon either side shall be allowed at least 1/2 hour if it is desired.”
Such provision is subject to local rule, if any, governing the disposition of so-called short causes, but it does not appear that there was such rule in the Saginaw circuit.
That the action of the trial court was taken in disregard of the court rule is not open to question. It may be noted in passing that the trial continued for approximately 2 days, and apparently was vigorously contested on both sides. On behalf of the people it is claimed that defendants’ counsel waived the right to object to the limitation of argument by failing to protest when the judge indicated that each side would be allowed but 15 minutes for argument. Obviously, however, counsel for defendants was not in position to determine what matters he would be compelled to argue, or the length of time necessary therefor, until the prosecuting attorney had made his opening argument to the jury. We are not impressed that the prosecution’s claim of waiver is well-founded. The obvious fact remains that the court rule was not observed, and that counsel for defendants was deprived of the privilege thereby-granted. A similar question was involved in Harrison v. Howe, 109 Mich 476, where the trial court limited the argument to 10 minutes on a side, which was materially less than the time permitted by the court rule then in force. In passing on the matter, it was said (p 480):
“The court was in error in limiting the argument to 10 minutes on a side.”
We think a like conclusion must follow in the case at bar.
Defendant Smith, in testifying in his own behalf on the trial, indicated on his cross examination by counsel for the people that his father-in-law had caused him trouble and that he did not want anything to do with him. Thereupon the trial judge intervened in the cross examination, and the following occurred:
“The Court: What trouble did this man cause you? (Directed to witness.)
“A. He had me arrested 3 times.
“The Court: You didn’t marry this girl, who was in a family way, did you, until after you had talked with the prosecutor’s office?
“A. No, sir.
“The Court: You say that is causing trouble?
“A. Well, it is trouble.
“The Court: She was pregnant, wasn’t she?
“A. Yes, sir.
“The Court: Weren’t you the guy?
“A. It appears to be that way.
“The Court: You call that trouble? He didn’t have a right to see about his daughter getting married?
“A. (No response.)
“The Court: Eh?
“A. Yes.
“The Court: That caused trouble for you?
“A. Yes.
“The Court: How about trouble for him?
“A. I told him I would marry her.
“The Court: When?
“A. After the baby was born.
“The Court: They don’t usually do that, do they?
“A. Not too often.
“The Court: Sometimes, because of that, they bring out a shotgun. Did you ever hear anything about that ?
■ “A. Yes.
“The Court: If he had wanted to cause you trouble, he could have got a shotgun, but, instead, he went to the prosecutor’s office. I don’t know what your idea of the law is, but he abided by the law. He was doing what the law says he has a right to do, and you were not doing what the law says you should do. Get that straight, witness, in connection with your idea that he was causing you trouble.. That was the first time?
“A. Yes, sir.
“By Mr. McDonald: The testimony of the girl—
“The Court: The testimony by the witness is, he says he was down in August.
“By Mr. McDonald: The girl said, Your Honor, he said he would marry her. It was her father’s idea to go to the prosecutor, and that’s the trouble the witness has referred to. I don’t like the jury to get the wrong impression. The girl—
“The Court: The only thing is, I want the jury to understand so far as causing this man any trouble is concerned, about the daughter who was pregnant at that time, the father acted within his rights in going to see the prosecutor to get something done about the father of the child his daughter was carrying. That’s the law.
“By Mr. McDonald: But those weren’t the facts.
“The Court: That is the law. He said the man made trouble for him. I want the jury to understand, if that was the kind of trouble he was making, he had a right to do that.
“By Mr. McDonald: His trouble—
“The Court: He said the first time was when he was brought down to court. I think the jury got the picture. You are not kidding the jury, and I’m not kidding the jury. I think the jury got the picture from what the man said. If you don’t like it, Mr. McDonald, object, I’ll rule, and sit down, that’s the thing to do. I am trying to get this thing straightened out.”
We are impressed that the cross examination of defendant Smith by the circuit judge could scarcely have failed to create in the minds of the jurors the belief that the judge was familiar with the difficulties between such defendant and his father-in-law, and that he considered defendant responsible therefor. The questions asked suggested a comparison of the 2 men, to the disadvantage of defendant Smith. The complaining witness was depicted as a law-abiding citizen who did only what he had a right to do, the implication therefrom being that defendant Smith was not of like character. '
The examination of defendant Smith by the judge must be considered in connection with certain statements in the charge to the jury. It was stated therein that “there is only 1 question for you to decide, which of the parties in this case is telling the truth as to what occurred out there.” After referring to the claims of the parties being in conflict, the judge also said: “There is no dispute about the assault having been made.” Referring to Smith’s claim that he acted in self-defense, the court charged-.
“In this regard you must consider the law frowns upon the use of self-help except in cases of .grave danger to one’s self. The courts'aré’open for the redressing of wrongs and no man may act as final arbiter in his own case and enforce his own determination. That statement means that no one has the right to take the law into his own hands, and in this regard I want to call your attention to the fact that in all of the previous associations between the complaining witness, Schuler, and his son-in-law, the complaining witness has always gone to the law, — with regard to the marriage of his daughter, — with regard to the nonsupport, — so you should bear that in mind, that up until this time he has always gone through the orderly processes of the law, while the defendant, Smith, on the witness stand, didn’t think that should be done.”
It thus appears that in his charge to the jury the trial judge was directing attention to his cross examination of the defendant Smith and in effect repeating his opinion of the complaining witness and of said defendant. The cross examination and the charge did not involve merely a comment on testimony but extended to characterization of the individuals whose conduct was in question. This constituted prejudicial error.
- Were the errors committed in the course of the trial sufficiently prejudicial to require the setting aside of the convictions of the defendants and the granting of a new trial? The test to be applied is whether because of the matters referred to defendants did not have a fair trial in the ordinary acceptance of that term. People v. Neal, 290 Mich 123. Consideration of the record in the case leads us to the conclusion that the question must be answered in the affirmative.
The convictions of the defendants are reversed and the case is remanded for further proceedings.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Carr, J.
This ease involves the alleged right of plaintiff to a license to operate a drive-in theater in defendant city, and to a building permit therefor. Following its incorporation defendant city adopted an ordinance prohibiting the establishment of drive-in theaters within the municipality. In Bzovi v. City of Livonia, 350 Mich 489, it was held that such prohibitory clause of the ordinance was invalid on the ground that its purpose was to prevent the carrying on of legitimate business enterprises. Thereafter the city through its legislative authority adopted certain ordinance amendments permitting the use of lands within the city, zoned as industrial, for drive-in theater purposes, the establishing thereof being subject to certain prescribed conditions. Among other provisions was a requirement that the approval of the city planning commission should be obtained, but such provision was subject to the right of the city council to approve an application for the issuance of a drive-in theater license notwithstanding disapproval thereof by said commission. The controlling ordinance (No 193) also contemplated favorable action by the city department of health and the Livonia police and fire departments. As a matter of procedure in the instant case the city council, in its consideration of plaintiff’s application for a license, also requested approvals from the city-traffic commission, the department of public works, the building department, and the Michigan State highway department. Such approvals were given.
Being unsuccessful in its attempts to procure permission to operate the drive-in theater and a necessary building permit, the plaintiff filed its petition in the circuit court of Wayne county asking for a writ of mandamus to compel the defendant city clerk to issue the license authorizing operation of the drive-in theater and to compel defendant planning commission to issue the building permit. It was alleged in said petition that prior to the incorporation of plaintiff in November, 1958, application had been made by Raymond Schreiber, now plaintiff’s president, for a drive-in theater license for operation on certain land, approximately 30 acres in extent, on the north side of Plymouth road, between Levan and Newburgh roads, which under the city ordinance was zoned for “light industrial, M-l” uses, expressly including drive-in theaters. Plaintiff alleged that the land referred to was purchased at an agreed price of $180,000 of which amount the sum of $50,400 had been paid at the time of the bringing of the action.
Plaintiff further alleged the expenditure of large sums of money in connection with the preparation of plans and specifications for the construction of the theater. Thereafter application was made for a building permit and for approval by the common council of the city of an application for a drive-in theater license. The common council approved the issuance of such license to Raymond Schreiber, but the mayor of the city vetoed the resolution of approval. The council failed to overrule such veto, 5 votes for such purpose being required.
Following the above mentioned events, as alleged in plaintiff’s petition and established by exhibits in trodueed in the ease, Mr. Schreiber assigned to the plaintiff corporation whatever right, title, and interest might be vested in him by virtue of the proceedings to obtain the requisite license and permit. It appears, however, that plaintiff did not rely on the approval by the common council but, apparently for the purpose of avoiding any legal question with reference to such assignment, made a new application for a drive-in theater license on June 4, 1959, paying at the time the sum of $1,200 as a license fee. In such application reliance was had on approvals of municipal authorities obtained by Mr. Schreiber. Following the new application to the city council plaintiff sought the approval of the defendant planning commission, which was refused on the alleged grounds that in its proposed location the land use in question would be injurious to the surrounding neighborhood.
Under date of September 14, 1959, the city council considered the application of plaintiff previously filed on June 4th of said year, and gave approval thereto, authorizing the city clerk to issue the license. The mayor interposed a veto to the resolution and filed with the city council a message setting forth the reasons for his action. Again the council failed to overrule the veto. Thereafter the city clerk declined to issue the license, and plaintiff’s application for a building permit was also denied.
On the hearing of the petition for writ of mandamus the matters in controversy were submitted on a stipulation of facts, the greater part of the stipulation being expressly based on exhibits incorporated therein by reference or by being set forth in full, which exhibits are in accord with the averments in plaintiff’s petition for the writ insofar as the procedure observed was concerned. Following consideration of the stipulated facts and the arguments of counsel with reference to the legal issues raised, the trial judge concluded, as indicated in the opinion filed by him, that plaintiff was not entitled to the relief sought. An order was entered accordingly and, on leave granted by this Court, plaintiff has appealed.
It is the claim of appellant, among other arguments advanced in support of the appeal, that under the charter of the city the mayor had no authority to veto the resolution approving plaintiff’s application. It is argued in substance that the power to exercise the veto is limited by the charter to legislative matters, that the granting of a license for the drive-in theater was purely administrative, and that, in consequence, the action of the council in approving the application was final. Such claim was disputed in the trial court on behalf of defendants, and the trial judge, citing and quoting from pertinent provisions of the charter, rejected the argument advanced by counsel for plaintiff, and concluded that the mayor had the authority to veto the resolution. We are in accord with such conclusion.
Chapter 4, § 22, of the city charter declares that the council shall act only by ordinance or resolution, the latter term being limited to official action in the form of a motion pertaining to the internal affairs of the city government, or specifically provided for by charter or statute. The following section relates to the enactment of ordinances, it being specified that all legislation of the city must be in such form. It thus appears from the provisions of said sections that action on administrative matters was intended to be taken by resolution and in legislative matters by ordinance. The veto power of the mayor is expressly covered in section 24 of said chapter, which reads as follows:
“The mayor shall have the power to veto, except as otherwise in this charter provided, which veto, with his reasons therefor in writing, must be made and filed with the city clerk prior to the time of the next regular meeting of the council, at which said meeting the clerk shall present such veto or vetoes to the council. The council may, only at said meeting or at any adjournment thereof, reconsider the vote by which such proceedings were passed and adopted; and if it so elects, may, only at said meeting or at any adjournment thereof, re-adopt such proceedings by an affirmative vote of 5 of - the members elect, in which event the mayor shall have no further right to veto, and in which event, all such proceedings, except ordinances, shall take effect on the day succeeding said meeting of the council; and ordinances so passed shall become effective when published according to law. All resolutions and proceedings, not vetoed by the mayor in the manner and within the time hereinabove specified, shall become effective on the day succeeding the date of the next regular meeting of the council; and ordinances not so vetoed by the mayor shall become effective when published and recorded according to law.”
It will be noted that the quoted section refers to “proceedings” of the council. The intent is clearly indicated that the veto power extends to both resolutions and ordinances. The provision with reference to the taking effect of the council action in the event of the overruling of the mayor’s veto is significant. All proceedings, except ordinances, were to be effective on the day following the action of the council. Clearly the reference to “all such proceedings” includes action taken by resolution, the authority of the council to act being limited to one or the other of such forms of expression. The language used is wholly inconsistent with the claim that the veto power granted to the mayor by the charter does not extend to resolutions pertaining to administrative matters.
On. the issue as to the mayor’s authority the charter is conclusive. In the framing and adoption of said instrument the electors of the city had the right under the Constitution and statutes of the State to prescribe and regulate the authority of the council and also of the mayor with respect to administrative matters of the character in question here. Counsel for appellant have called attention to Fish v. City of Dearborn, 351 Mich 169. However, the provisions of the charter of Dearborn, there considered in the opinion of the Court, did not contain the express language controlling in the interpretation of the provisions of the Livonia charter above considered.
The further argument is advanced by plaintiff that the reasons given by the mayor for his veto of the resolutions adopted by the city council were insufficient to support his action. It will be noted that chapter 4, § 24, of the charter, above quoted, imposes no requirement with reference to the sufficiency of reasons impelling a veto of either a resolution or an ordinance. The provision that the mayor shall state his reasons for his action was presumably based on the theory that the members of the council, being vested with authority to overrule a veto, were entitled to know the mayor’s objections to the end that proper consideration might be given thereto. The weighing of such objections in the instant case rested solely with the council.
As a result of the exercise of the veto power by the mayor, and the failure of the common council to override such action, there was no valid resolution of approval of the application of the plaintiff, or of its assignor, for a license to operate a drive-in theater on the property involved. The conclusion necessarily follows that the defendant city clerk was not authorized to issue such a license by the terms of the city ordinance providing therefor. The peti tion filed by plaintiff in circuit court did not challenge the validity of the provisions of either ordinance 193 or 194, here involved, except as to a clause requiring that a drive-in theater shall not be permitted to operate between December 1st and April 1st of any license year. Such provision is obviously not involved in the instant controversy. The substance of plaintiff’s claim is that it is entitled to .a license to operate, and a building permit, under the city ordinances cited.
Neither the averments of the petition nor the stipulation of facts on which the case was heard in the trial court suggest any possible claim that plaintiff is being deprived of the right to make profitable use of its property. In other words, there is nothing before us tending to establish the confiscation of the property in question because of plaintiff’s inability to obtain the requested license and permit. Said property is in an industrial zone, and so far as this record discloses its value for nonob jectionable industrial use may be as great or even greater than for the use thereof for a drive-in theater.
As the situation now stands, plaintiff is not entitled to the remedy sought against the clerk or the planning commission. The remedy of mandamus is discretionary and such a writ will issue against public officials only to compel the enforcement of a clear legal duty. No relief is here sought against the city council. Neither it nor its members are parties to the case. Plaintiff cannot operate a drive-in theater in the absence of approval by the council of an application for a license therefor. At the present time there is no valid approval because of exercise of the mayor’s veto and the failure to overrule it as authorized by the charter. The conclusion follows that plaintiff has failed to establish its claimed right to a license to operate a drive-in theater, and the requi site building permit, under the provisions of the municipal ordinances involved.
On the record before him the trial judge correctly-disposed of the matters at issue under the pleadings, and the proofs. The order from which the appeal has been taken is affirmed.
Dethmers, 0. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Kavanagh, J.
In March, 1956, Everett B. Kennison and his wife Pauline were murdered while on a vacation trip in Mexico. Mr. Kennison, at the time of his death, was president of the Kennison Sales & Engineering Company, Incorporated. He owned 1% of the stock of the corporation and his wife Pauline owned 98%, the remaining 1% being-owned by Dennis H. Robinson, a neighbor of the Kennisons. The firm was incorporated on October 4, 1954, and had been previously operated as a sole proprietorship by Mr. Kennison. The firm’s original registered office was on Cass avenue in Detroit, while part of the corporate files and other books and records were maintained at the Kennison home on Evergreen avenue in Detroit. Some of the business was also done at that location.
Shortly after the Kennisons’ burial, Mr. Dennis H. Robinson, a director of the corporation, Mr. Til-den Grallagher, attorney for the corporation, Mr. Charles J. Dormal, brother-in-law of Mrs. Kennison, and Adrian Kennison, brother of Mr. Kennison, went to the home on Evergreen avenue to examine the effects of Mr. and Mrs. Kennison. They found personal records of the Kennisons and records and files relating to the Kennison Sales & Engineering-Company, Incorporated. In addition they found 4 sealed, white, unmarked envelopes. The first envelope contained $10,000 in cash; the second envelope $8,200 in cash; the third envelope $195 in Canadian funds; and the fourth envelope $8,000 in cash. This cash, except the Canadian funds, amounting to $26,200, is the subject matter of this suit. In addition there were found cashier’s checks amount ing to $20,554.88 payable to Kennison Sales & Engineering Company, Incorporated; a lady’s purse containing cash in the amount of $1,449.65; and a cashier’s check for $780 payable to Pauline Kennison.
An inventory was made by the parties followed by a discussion of what to do with the funds. They decided to turn them over to Brinks for safekeeping. The parties later turned the $26,200 over to the National Bank of Detroit.
On May 28,1956, the Wayne county probate court appointed the National Bank of Detroit administrator with will annexed of the estate of Everett B. Kennison. On March 29, 1956, Charles J. Dormal was appointed administrator of the estate of Pauline Kennison.
Mr. George E. Bowles was appointed attorney for the estate of Everett B. Kennison. Mr. Tilden Gallagher was retained as attorney for the administrator of the estate of Pauline Kennison.
Mr. Dormal, Mr. Bowles, and a Mr. Arthur A. Ude were elected directors of the Kennison Sales & Engineering Company, Incorporated. These directors appointed the National Bank of Detroit as agent for the corporation and turned over all the corporate books and records to it. From 1956 up to February 16, 1959, meetings of the board of directors of the corporation were held frequently at the National Bank of Detroit.
At the direction of 1 of the directors, the National Bank of Detroit paid claims against the estate of Everett B. Kennison totaling $2,932.95. These payments were made with the knowledge and consent of the directors of the corporation.
The funds in question were not included in the inventory of the estate of Everett B. Kennison filed with the probate court. The only explanation given for this in the record is that the estate of Pauline Kennison, through its attorney, had indicated it intended to file a claim to part of this fund and the bank did not want it included in the inventory until the claim was resolved.
On February 20, 1959, a petition for the dissolution of Kennison Sales & Engineering Company, Incorporated, was filed. William B. Browning was appointed receiver.
On March 14, 1960, the receiver filed his petition for an order to show cause why the National Bank of Detroit should not be ordered to turn over the funds in question to him. Hearings were had and the trial judge concluded from lengthy testimony that “the bank’s position has been one of at best, a dual capacity — administrator for the estate of Everett Kennison, and the agent for the corporation.” The court made clear he was not determining-title to the cash, but only the right to possession. He directed that the cash be turned over to the re-receiver forthwith and that the receiver hold the sums intact. He provided for the increase of the receiver’s bond commensurate with the amount of money in his hands.
The National Bank of Detroit, through its attorney, offered a proposed order which directed that the National Bank of Detroit, as fiduciary of the estate of Everett B. Kennison, should forthwith deliver and pay over to the National Bank of Detroit the $26,200 plus any and all income earned therefrom during the period which the bank was in possession of such sum as fiduciary of the estate of Everett B. Kennison, setting up certain terms upon which the bank was to hold the funds.
The circuit judge refused to sign such an order and entered one directing the National Bank of Detroit as stakeholder and agent to turn over the sum of $26,200 to the receiver forthwith.
The hank, as administrator with will annexed of the estate of Everett B. Kennison, has appealed, claiming the circuit court was in error in entering an order in a summary proceeding transferring possession of the cash fund held under a claim of title by the administrator to the receiver; that the order appealed from was unconstitutional; and that the administrator would be irreparably injured by the order transferring the fund to the receiver.
Appellant’s argument is based on the well-established rule that a receiver may not invoke the aid of a court in a summary proceeding to take possession of property held by a stranger to the proceeding. With this general rule appellee does not disagree. Appellee contends, and we think correctly so, that the general rule that a person claiming adversely cannot be ordered to surrender possession of property to a receiver in a summary proceeding-does not apply where such adverse claimant is a party to the receivership proceeding or is an agent of or in privity with such party.
The trial court found the National Bank of Detroit was at best acting in a dual capacity — that of administrator of the estate of Everett B. Kennison and agent for the corporation.
This Court in the case of Stowe v. Wolverine Metal Specialties Co., 242 Mich 624, speaking through Justice Fellows, recognized the general rule but said (pp 628-630):
. “But corporations may only act through their officers and agents, and while the rule above referred to has generally been recognized, it has likewise been generally recognized that it is not applicable to the officers and agents of corporations. In High on Receivers (4th ed), § 312a, it is said:
“ When a receiver is appointed over a corporation, with the usual powers of receivers, and specially empowered by the order of the court to receive all the effects and choses in action of the corporation, snch order involves a correlative duty upon the part of the corporate officers to deliver the assets, to the receiver, even though such delivery is not specifically directed by the court. A failure, therefore,, by the officers of the corporation to deliver its assets to the receiver, and their sale by such officers, constitute a contempt of court and will be punished as. such.’
“And in section 144 of the same work it is saidr
“ ‘The receiver, being the officer or agent of the court, is entitled to its assistance in obtaining possession of property which is the subject-matter of his receivership, and may have an order of court to-procure possession of such property, not only against defendant in the action, but in a proper case against his agents and employees, although not parties to the record, requiring them to deliver up the-specific property.’
“In 1 Tardy’s Smith on Receivers (2d ed), p 872,, § 345, it is said:
“ ‘A failure of the officers of a corporation over which a receiver has been appointed to deliver its-assets to such receiver, even though the delivery is not specifically ordered by the court, constitutes: a contempt of court.’
“In Tolleson v. People’s Savings Bank, 85 Ga 171, 178 (11 SE 599), it was said:
“ ‘When a court acquires jurisdiction over a corporation as a party, it obtains jurisdiction over the official conduct of the corporate officers so far as that conduct may be involved in the remedy against the-corporation which the court is called upon to enforce.’
“And the commitment of the officer for contempt was affirmed. In the case of In re Cohen, 5 Cal 494, 496, where this question was before the court, it was said:
“ ‘Courts of equity unquestionably have the power1 to appoint receivers and to order them to take possession of the property in controversy, whether in. the immediate possession of defendant or his agent, and in proper cases, they can also order the defendant’s agents or employees, although not parties to the record, to deliver the specific property to the receiver.’
“See, also, Brandt v. Allen, 76 Iowa 50 (40 NW 82, 1 LRA 653); State, ex rel. Cameron, v. District Court, 48 Nev 198 (228 P 617); Blaise v. Security Brewing Co., 124 La 979 (50 So 816); Thornton v. Washington Savings Bank, 76 Va 432; Young v. Rollins, 90 NC 125; Wheeler v. Mathews, 70 Fla 317 (70 So 416); Edrington v. Pridham, 65 Tex 612. And this Court has recognized the rule in Baldwin v. Wayne Circuit Judge, 101 Mich 119 (25 LRA 739), although in that case the officers had been garnisheed and it was hold that under such circumstances the trial judge properly refused to commit them for contempt.”
The sole question to be determined in the instant case, then, is one of fact as to whether or not the National Bank of Detroit held these moneys as an agent and stakeholder for the corporation or whether it held them as administrator of the estate of Everett B. Kennison.
In analyzing the testimony with respect to this point the trial court had before it the inventory in the estate of Everett B. Kennison, which did not list these funds as an asset of the estate. An experienced trust officer of a large bank certainly would have listed all the assets in the inventory and made reference to the alleged claim of the estate of Pauline Kennison. Following is some of the testimony of Malcolm McMillan, assistant trust officer of the National Bank of Detroit:
“A. We were agent for the directors and they were having periodic meetings in which all these things were discussed verbally and there was no formal minutes at those meetings taken and they were cognizant of everything that went on.
“The Court: Because you were agent for the directors ?
“A. Yes, your Honor.
“The Court: And, your agency came about by reason of what, may I ask?
“A. Well, an agency agreement.
“The Court: Is there such an agreement in existence?
“A. There is some sort of an agreement. I don’t remember whether it was a letter or a formal document, but there was a writing of some type.
“The Court: And when did your agency commence? What is your best recollection?
“A. Well, shortly after he died.
“The Court: Did your agency include the right to or the duty to gather up any assets of the corporation and the estate?
“A. Yes, I would say so, yes.
“The Court: Would you have any objection in the interest of assisting me in making a determination to letting us see the correspondence and that agreement and what the dealings were in relation to this money ?
“A. I have no objection, your Honor, seeing the agreement by which we were made, no, sir.
“The Court: Or whatever correspondence you have relative to these funds.
“A. No, I wouldn’t have any objection to that either, although I don’t think that there is a lot of correspondence because as I say we had almost weekly meetings at the start.
“The Court: At those weekly meetings, were the board of directors there?
“A. That’s right, your Honor, they were.
“The Court: And, yourself as fiduciary for the estate.
“A. Yes.
“The Court: You were also agents for the directors?
■ “A. Yes..
“The Coiirt: Now, at those meetings, did you ever discuss these funds — the money that was found in the house and the checks and so on.
“A. We discussed everything concerning both the ■estate and the corporation.”
Mr. Tilden Gallagher, who had testified with respect to the acts of the bank, participated in a colloquy between court and counsel as follows:
“Mr. Gallagher: Oh, yes, the bank acted in accordance with an authorization in writing of the board of directors. The bank acted as an agent for them— for the Kennison Sales & Engineering Company.
“The Court: After he died?
“Mr. Gallagher: Surely.
“The Court: And, this is their accounting, is it?
“Mr. Gallagher: Let me say this, your Honor, this ■statement of the National Bank of Detroit is for the Kennison Sales & Engineering Company for the period referred to by Mr. Sugar from March 28 to May 14, 1959. I haven’t seen this before so that if it is going to be in evidence, I think it should be.
“Mr. Sugar (attorney for the receiver): Your Honor, may I suggest this, Mr. King, do you have any objection if I introduce this in evidence?
“Mr. King (attorney for the bank): I haven’t seen it.
“Mr. S%t,gar: You haven’t seen it? It was made available by your client.
“Mr. Gallagher: Let me say something else in connection with this exhibit, in fairness to the witness, let’s find out if he has even seen it. He is being cross-examined on it.
“Mr. Sugar: My cross-examination, your Honor, related itself to only 1 aspect of it. I think that Mr. Dormal has already testified to that portion which I am satisfied with. I have no objection to the introduction of the exhibit into evidence. It was made available by the National Bank of Detroit to us and I am proffering it to their counsel. They are the ones that prepared it.
“The Court: Now, the state of this record is such that from this situation I learn that the bank as an agent of the board of directors of the corporation holds money found in the corporate office.
“Mr. Sugar: And which Mr. McMillan stated was not for safekeeping, but that he now claims it is a representative of the fiduciary or the National Bank of Detroit in the estate of Everett Kennison.
“The Court: I want to see that exhibit when you are through with it.
“Mr. King: Your Honor, the file in the receivership shows that the National Bank of Detroit acted as agent for the corporation. I don’t think there is any secret about that.
“The Court: The fact is that I want this record to emphasize, if this case should go to the Supreme Court, that here was clear adverse relationship that were never disclosed to this court.”
Mr. King, in a statement to the court, said:
“There is the petition for dissolution. There is an item in the record which indicates in paragraph 4, that an inventory of all the assets of the estate, both real and personal, in law and equity that this corporation has access to or any part hereof and all books, vouchers and so on, of the corporation are in the hands of the National Bank of Detroit, which has been acting as agent for said corporation under an agreement with the said members of the board of directors of said corporation.”
An examination of the petition discloses this statement to be true.
Receiver’s exhibits 5, 6, 7, and 8 were admitted without objection from Mr. King, attorney for the bank, or from Mr. Gallagher, attorney for the estate of Mrs. Kennison. Exhibit 5 purports to be an inventory of assets as of March 28, 1956, made by the National Bank of Detroit of the Kennison Sales & 'Engineering Company, Incorporated. Exhibit 6 is a statement of receipts and disbursements by the bank in behalf of the corporation from March 28, 1956, to May 14,1959, and an inventory of the assets as of May 14, 1959. Exhibit 7 appears to be an accounting of receipts and disbursements by the bank for the corporation from May 14, 1959, to August 11, 1959. Exhibit 8 is an inventory of the assets as of August 11,1959, made by the bank for William B. Browning, receiver.
Clearly, the National Bank of Detroit, as indicated hy these exhibits, was acting as agent for Kennison Sales & Engineering Company, Incorporated, from March 28, 1956, through August of 1959 after the receiver was appointed. As such agent it was a party to the proceedings and subject to the control ■of the chancellor in the receivership. There was evidence from which the court could, and did, find that the funds came into its possession and were retained by the National Bank of Detroit as stakeholder and agent for the corporation and not as an asset of the ■estate of Everett B. Kennison.
The rule permitting the receiver to obtain possession of the property held by a party’s agents and privies in a summary proceeding is a logical application of the agency rule based on the view that the agent’s possession is the possession of his principal. Upon his appointment, the receiver succeeds to the principal’s right of possession against the agent. The property is within the constructive possession of the receiver and is thus brought within the jurisdiction of the court.
We conclude that the court was correct both as to his findings of fact as to the agency of the National Bank of Detroit and his right to order the funds turned over to the receiver forthwith.
The order of the trial court is affirmed. The receiver shall have costs.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, and Souris, JJ., concurred.
Black, J., did not sit. | [
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Smith, J.
This is a zoning case. The validity of the ordinance is not assailed, rather, its construction and application to the facts before us.
Upon' the premises in question the defendant, Waldo Wilson, conducts what, he agrees, is a com mercial radio station. He receives messages on the telephone for subscribers to his service and broadcasts them by radio. The subscribers (an electrician, doctors, building contractors, and -wreckers’ services, among others) have radio receivers, as well as transmitters, in their cars or trucks and thus are enabled to receive messages broadcast to them. The equipment required in their cars is owned by defendant, leased to them, and installed by defendant, sometimes in a vacant lot near his home. In addition, repairs are also made at times at his home, at times after dark.
The tower employed for such broadcasting, combined with its antenna, is 120 feet in height, resting on a concrete slab. But defendant has purchased a new tower, weighing about 6,100 pounds, to be approximately 150 feet in height, resting upon 3 foundations of concrete (one for each leg of the tower), each foundation containing some 12,000 pounds of concrete. Some of the neighbors have experienced difficulty with television reception, allegedly because of Mr. Wilson’s broadcasts. In fact, it was testified, in addition to “blacking out” the picture on certain channels, talking could also be heard, and messages, such as “Go to Bill Stern’s, fryer won’t work,” “Number 18 * * * He went to get breakfast, as far as I know, he’s still there,” and “Number 15, Sandra fell and cut her chin and would like to talk to you.” When Mr. Wilson’s equipment was not in operation, such interference was not experienced.
The neighbors objected to these activities and the matter was brought to a head by the defendant’s purchase, and contemplated erection of the new tower described above. The city of Muskegon Heights, plaintiff herein, brought its bill in chancery to enjoin the operation of the station, and for incidental relief, asserting such operation to be in violation of section 3 of the zoning ordinance of the city.
Section 3 provides as follows:
“In the 'A’ residence district no building or premises shall be used and no building shall be hereafter erected or altered, unless otherwise provided in the ordinance except for 1 or more of the following uses:
“1. Private and 2-family dwellings.
“2. Churches.
“3. Schools.
“4. Libraries.
“5. Farming and truck gardening.
“6. Accessory buildings and uses incident to any of the above uses when located on the same lot and not involving conduct of a retail business, including 1 private garage and including also home occupations engaged in by the occupants of a dwelling not involving the conduct of retail business on the premises, and including also the office of a physician, surgeon, dentist, musician, artist or similar vocations when situated in the same dwelling used by such physician, surgeon, dentist, musician, artist or similar vocations as his or her private dwelling; provided no name plate exceeding 1 square foot in area containing the name and occupation of the occupant of the premises, nor a sign exceeding 8 square feet in area appertaining to the lease, hire or sale of a building or premises shall be permitted in the ‘A* residence district.”
The opinion of the trial chancellor, so far as it pertains to matters now before us, was that “it is rather obvious that there is some violation of the ordinance in question, in the nature of the operation that has been conducted.” He continued, however, with the hope that the parties might amicably adjust the matter between themselves and thus held it in abeyance for 90 days. This opinion was delivered at the close of trial on April 21, 1959, and filed on May Í2, 1959. The hope seems to have been unavailing, however, for many months later, in November of 1959, a decree was filed, which held that the described broadcasting was “not a permissible ‘home occupation’ within the meaning of said section 3” and permanently enjoined “the conduct and maintenance of a commercial radio station for the transmission and reception of radio messages for gain” upon the described premises, as well as allowing other and further relief.
The section of the zoning ordinance before us for construction has a historical basis, an understanding of which is necessary to its proper interpretation. As described in Bassett’s treatise, it became apparent at an early stage in the growth of the law of zoning that residential districts could not be confined to residential purposes only. From earliest times it had been customary, for example, for the doctor, or the lawyer, to have an office in his home. This was true, also, of the milliner, the music teacher, and the seamstress. But in all of these cases the business use is merely incidental or accessory, the house remaining primarily a home, not the headquarters for a business. In arriving at decision as to which use is predominant, the courts consider such factors as the customs and practices of the community, as well as of the occupation involved, the amount and kind of machinery necessary to the accomplishment of the business objective, the traffic, both personal and vehicular, incidental thereto, the effect of the conduct of the business upon the tranquility and residential character of the neighborhood, and similar factors. What the ordinances seek to avoid, in other words, is the infiltration of residential areas with small businesses or their appurtenances. So it was that we upheld the prohibition of the use of a private 3-car garage for the storage of the owner’s trucks containing perishable fruits and vegetables, despite the fact that they required no; more space than similar noncommercial vehicles. People v. Scrafano, 307 Mich 655.
But, the defendant argues, where the phrase “home-occupation” is not qualified by the word “customary,”' that limitation will not be read into the ordinance, citing Jantausch v. Borough of Verona, 24 NJ 326 (131 A2d 881). The city argues, on the other hand, that such words in the ordinance as “accessory” and. “incident [al]” carry their own gloss of meaning in which custom plays a large part. We agree with defendant that the use of these premises as a commercial broadcasting station is not a customary home use. We do not, however, agree that the absence of such word is conclusive of the issue presented, or that it throws the residential area open to the invasion of whatever business may be new to the times, regardless of its effect upon the character of the business or of the neighborhood. We find no error-in the trial chancellor’s determination that the operation of this station involved a violation of the ordinance in question.
A subordinate issue concerns the use made of the premises for other than a broadcasting station. A garage was built in the rear in 1952 and a breezeway in 1955. Only once has a car been placed in the garage. Rather, it and the breezeway contain parts of 3 pipe organs, automobile tires, a saw, and miscellaneous gear of various kinds, it being impossible at the present time to drive a car into the garage-The building inspector testified that in the breezeway there was only an 18-inch space available for walking through, the balance being taken up with wire and equipment. Upon these facts the trial chancellor decreed that defendant be enjoined from using the buildings on the premises having “the ■design of a garage and breezeway, for the purpose of storing equipment and junk and for purposes other than the housing of automobiles.” The thrust of the injunction is clear. There is nothing here prohibiting the use of an organ, or a home workshop, in a home, or the use of a garage for its normal purposes. We find no error therein.
There is no merit in appellant’s contention that the matter of the interference of appellant’s station with his neighbors is a matter solely within the jurisdiction of the Federal communications commission. The question before us is one of zoning, a province of the local government. See Presnell v. Leslie, 3 NY2d 384 (165 NYS2d 488, 144 NE2d 381).
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
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Kelly, J.
Plaintiff claimed defendant contractor breached a contract for paving Recreation avenue, in the city of St. Clair Shores, by not paving according-to specifications, and that the cost of repair would amount to $32,935.
Defendants deny the work was substandard and allege that defendant L & L Construction Company was forced by the city to do the work at an unseasonably late period in the year because of pressure from residents on the street.
Defendants filed counterclaim against plaintiff in the amount of $12,000, claiming misrepresentation of subsoil conditions.
The contract, dated August 31, 1955, did not provide a time limit for completion. The Cook Construction Company had in the early part of 1955 released itself from a similar contract of construction because of plaintiff’s lack of funds.
The paving was installed in the months of November and December. Defendant was prevented from beginning construction at an earlier date because defendant had to wait until a storm drain had been installed by another contractor. •
During the course of the work 5 payments were made to defendant contractor and 5% of the contract price was withheld. The final inspection in late April or early May of 1956 showed the pavement in various stages of disintegration.
The trial was held before Hon. Alton H. Noe, circuit judge for the county of Macomb, without a jury. At the conclusion of plaintiff’s proofs, defendants moved for judgment in their favor (styled in the record motion for directed verdict), which was granted. After the trial court granted defendants’ motion, defendant contractor withdrew its counterclaim. Thereafter plaintiff moved to increase the ad-damnum from $35,000 to $120,000, which motion was denied.
The inspector for plaintiff city inspected the job daily and did not at any time, or in any way, object or complain about defendant contractor’s method of construction.
In Schliess v. City of Grand Rapids, 131 Mich 52, 62, we said:
“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.”
The trial court, in ruling upon the instant case, stated:
“But I am impressed with this, however, in the first place, this job would never have been done except for extreme pressure on the part of some land developers. Because from all the testimony here, and this is all plaintiff’s testimony, it was quite ■evident that the situation was such as to have made .anybody extremely cautious about having this contract performed. It would not have been performed ■except for the extreme urgency brought about by the necessity for putting down the pavement and selling homes.
“Now in view of that, and I think the cases cited here have considered questions that have been quite .akin to this in this respect, that all parties knew that an extreme risk was being undertaken here, the plaintiff as well as the defendant. Plaintiff frankly concedes that.
“What happened so far as the plaintiff is concerned? Plaintiff had an engineer who was in charge ■of this and states that he knew of the conditions. He specifically states, I believe, in response to a question somewhere along the line, that he certainly didn’t recommend it. He said that the paving wasn’t done ■during November and December under his direction, but only with his acquiescence, which would serve to indicate that the representative of the city was not at all willing to say that this was the proper thing to do. * * #
“It was an unusually bad November and December, and never under any other circumstances, except the urgency of the urging of certain land owners, only under their urging was this done. Everybody acknowledges that sensibly it should never have been done at that time. It seems to me that the plaintiff has failed to show that the defendant failed in any part of his contract, in the performance of his contract, that there was any failure in living up to his contract so far as the plaintiff is concerned.”
The record sustains the trial court’s granting of ■defendants’ motion for judgment and denying plaintiff’s motion to increase the ad damnum from $35,000 to $120,000.
Affirmed. Costs to appellees.
Dethmers, C. J., and Carr, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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] |
Souris, J.
Plaintiffs’ car had stopped in response to a red traffic light. Defendant had stopped his car immediately behind plaintiffs’. When the traffic signal became green, both cars started in motion, plaintiffs’ turning right and defendant’s moving straight ahead. Just before completion of the right turn, plaintiffs’ car stopped suddenly and was struck from behind by defendant’s. Plaintiffs are husband and wife, Mr. Bishop, being the driver.
Mrs. Bishop started suit for damages for the injuries she incurred. Mr. Bishop sued for recovery of the cost of repairing his car and of his wife’s medical expenses and damages for his loss of his wife’s services. The cases were consolidated for trial by consent of all parties and the jury returned a verdict of $1,000 for Mrs. Bishop and found no cause for action in her husband’s suit.
Contributory negligence by Mr. Bishop was pleaded as a defense by defendant, and it was an issue submitted in the trial court’s charge for jury determination. In view of the verdicts returned, it is a fair inference that the jury found defendant action-ably negligent and, while denying Mr. Bishop recovery because it found him to be contributorily negligent, it awarded Mrs. Bishop a judgment against defendant because her host driver’s contributory negligence may not be imputed to her. Bricker v. Green, 313 Mich 218 (163 ALR 697). This is the only logical explanation of the verdicts, assuming they were made within the scope of the trial court’s charge to the jnry.
Both plaintiffs appeal, claiming that there was no evidence whatever of Mr. Bishop’s contributory negligence and that injection of that issue in the court’s charge was not only prejudicial to him, but in the absence of an instruction on damages where concurrent negligence results in a single indivisible injury, the charge was prejudicial to Mrs. Bishop as evidenced by what plaintiffs consider to be a totally inadequate award of damages to her. In effect, they claim (1) that Mr. Bishop, as a matter of law, was not guilty of contributory negligence and, (2) that if the evidence supported a finding of Mr. Bishop’s contributory negligence, the trial court should have instructed the jury that Mrs. Bishop was entitled to recover her full damages, if any, from defendant notwithstanding the fact that Mr. Bishop may be found to have been contributorily negligent.
In Banzhof v. Roche, 228 Mich 36, 41, this Court said:
“It is elementary that where injury results from the concurrent negligence of 2 or more, each proximately contributing to the result, recovery may be had against 1 or more, although but 1 satisfaction may be had. If the negligence of the defendant company caused the injury, it is not absolved from liability because the concurrent negligence of Roche contributed to the result.”
See, also, Barkman v. Montague, 297 Mich 538; 1 Shearman & Redfield on Negligence (6th ed), § 122; and Maddux v. Donaldson, 362 Mich 425, quoting from 1 Cooley, Torts (3d ed), p 247, Prosser, Torts (2d ed), p 226, and 4 Restatement, Torts, § 879. Plaintiffs’ counsel was entitled to request the trial judge to instruct the jury that if it found defendant guilty of negligence which was a proximate cause of Mrs. Bishop’s injuries, even if Mr. Bishop were found by the jury to have been contributorily negligent, Mrs. Bishop was entitled to recover a judgment against defendant for her entire damage. Had request been made, the trial judge would have erred had he refused to give such an instruction. However, no such request was made by counsel. Our problem is: Was the trial court’s omission of such instruction, in the absence of a request therefor, reversible error %
Not infrequently these days, our trial courts hear automobile negligence cases like these of the Bishops consolidated for trial by consent for the convenience of the parties, of the court, and of the public. One inherent danger in consolidation of such cases is that breaches of duty by one party plaintiff may erroneously be attributed by the jury to another party plaintiff, even when care is exercised by the trial court in his charge to the jury to keep the legal rights of the litigants separate. For example, in this case, contributory negligence of plaintiff driver might have been imputed to Mrs. Bishop, a guest passenger, had the court not given a protective instruction based upon Bricker v. Green, supra. Once the court submitted the question of Mr. Bishop’s contributory negligence to the jury, it was an essential requirement of fair and full instruction on the law applicable to Mrs. Bishop’s case that he also instruct the jury that Mr. Bishop’s contributory negligence, if any, should not be imputed to Mrs. Bishop, a guest passenger, and he did so. Had he failed to so instruct on such an important element of the law applicable to the facts in this particular case, he would have committed reversible error even though no request were made to so charge. See Martiniano v. Booth, 359 Mich 680, 688-693, 695.
In consolidated actions such as these, it is not enough that the judge instruct the jury on each plaintiff’s right to recover; to fulfill his obligation to instruct the jury as to the law applicable to such cases, he must also instruct the jury properly and fully on each measure of damages each plaintiff is entitled to recover if liability of the defendant to him be established. It would be a futile act to require an instruction on such an important element of the law as Mrs. Bishop’s right to recover against defendant notwithstanding her coplaintiff’s contributory negligence, without also requiring an instruction on the equally important element of the law that she is entitled to recover her full damages against defendant notwithstanding such contributory negligence by a coplaintiff; in short, that the jury must not attempt to apportion her damages between her coplaintiff and defendant. She was entitled to such an essential instruction whether or not her counsel requested it. In the absence of such an instruction, it is a fair inference that once the jury found Mr. Bishop negligent and that his negligence contributed to Mrs. Bishop’s injuries, it failed to assess against defendant that portion of Mrs. Bishop’s damages it charged to her husband’s negligence. That is the logical course, and since nowhere in the court’s instructions was the legal course prescribed, we must assume that the jury followed the logical course. Mrs. Bishop is entitled to a new trial.
Mr. Bishop’s appeal presents a more fundamental problem of liability. Mr. Plumb, the defendant, testified that he stopped behind Mr. Bishop’s car heading south while the traffic light was red. When the light became green, he saw a pedestrian step off the southwest curb of the intersecting street just as Mr. Bishop began his right turn onto that street. There was a truck at Mr. Plumb’s left, barring his moving into the adjoining lane to get around plaintiffs’ turning car. Mr. Plumb averted his gaze from straight ahead to his left to see “how close” the truck was and:
“Well, when I glanced back, Bishop had stopped. Well, I applied the brakes and at the same time we hit.”
On cross-examination, he testified that the moment he glanced back, the rear stop lights on Mr. Bishop’s car went on and it stopped instantly without leaving tire skidmarks.
He further testified that had Mr. Bishop proceeded another 1 to 1-1/2 feet into his turn, there would have been room enough for southbound traffic to pass without hitting the Bishop car. According to defendant, the pedestrian was 4 to 5 feet across the. easthound lane of the 2-lane intersecting street at the time of the collision, and he claimed that Mr. Bishop could have completed his turn without endangering the pedestrian.
Mr. Bishop, on the other hand, relied at the trial upon the statute imposing upon a driver making a turn a duty to yield the right-of-way to a pedestrian lawfully in a crosswalk. He claims that stopping his car to yield the right-of-way to the pedestrian lawfully in the crosswalk could not constitute an act of negligence on his part in this action and, therefore, that the trial court erred in submitting the question of his contributory negligence to the jury. We cannot agree.
It is true that the statute required Mr. Bishop to give the pedestrian in the crosswalk positive preferential treatment. See Bartlett v. Melzo, 351 Mich 177, 187, where this Court so characterized a similar city ordinance. As was further said in that case, the care required of the motorist goes beyond the common-law rule of ordinary care to which the pedestrian is entitled even without such legislative mandates. Indeed, whenever an automobile collides with a pedestrian lawfully within a crosswalk, it may well be that the motorist is guilty of violating the statutory standard of care, in the absence of extraordinary circumstances such as a deliberate suicidal movement by the pedestrian or the more familiar ¡situation where a pedestrian suddenly panics and moves backward into the path of an automobile. See Switzer v. Baker, 178 Iowa 1063 (160 NW 372) People v. McLachlan, 36 Cal App2d 754 (93 P2d 280); and Giles v. Happely, 123 Cal App2d 894 (267 P2d 1051). But in the case at bar, there was ample competent testimony to support a jury’s finding that Mr. Bishop could have completed his turn in safety without endangering the pedestrian or interfering with his right-of-way. Under these circumstances, it was for the jury to determine whether or not' Mr. Bishop was guilty of contributory negligence in stopping as he did. The trial judge’s charge correctly submitted this question to the jury. We find no prejudicial error in the trial of Mr. Bishop’s case.
Accordingly, the verdict and judgment in Mrs. Bishop’s case must be set aside and the case remanded for new trial. The judgment in Mr. Bishop’s case is affirmed.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Souris, J.
Court Hule No 37, § 9 (1945).
On cross-examination plaintiff testified the intersecting street was a 2-lane street, each lane about 10 feet in width. However, the pedestrian (plaintiff’s witness) testified on eross-examination that at the point of collision the intersecting street was about 30 feet wide and that he was about 1/2 way across the eastbound lane.
CLS 1956, § 257.612 (Stat Ann 1960 Eev § 9.2312), which reads in part as follows:
“Sec. 612. * * * TRe following colors shall be used and said terms and lights shall indicate and apply to drivers of vehicles as follows:
“(a) Green alone or ‘Go’.
“Vehicular traffic facing the signal, except when prohibited under section 664 may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.” | [
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] |
Souris, J.
Plaintiff sued in assumpsit to recovei a portion of its 1957 taxes paid under protest. The taxes were assessed upon plaintiff’s mineral properties located in defendant township of Allouez, in Keweenaw county. Circuit Judge Leo J. Brennan entered a -judgment in plaintiff’s favor, after trial without a jury, for $9,510.53, the amount by which lie found plaintiff’s taxes to exceed the maximum amount for which it could be assessed legally.
Plaintiff, to sustain its judgment, urges upon us a construction of section 24 of the general property tax law (CLS 1956, § 211.24 [Stat Ann 1960 Rev § 7.24]), particularly the third proviso clause, added by PA 1947, No 93, which would except from the process of equalization by the State equalization board all mineral properties required by that section to be valued for tax assessment purposes by the State geologist. Section 24 provides that the State geologist or his deputy shall determine the true cash value of such mineral properties and certify the result to the supervisor of the township who shall then assess such value to the owner. The proviso clause involved in this appeal reads
“Provided further, however, That it is the intent of this act that mineral properties shall be valued and assessed in the future for ad valorem taxes in accordance with the formula used in the valuation of mineral properties prior to the effective date of this act.”
The effect of this language, plaintiff contends, is to make the geologist’s determination of true cash value final and binding upon the governmental units of the State so long as it is made in accordance with the formula to which reference is made and in the absence of fraud or mistake. To permit the geologist’s valuation to be modified by the State equalization board would result, plaintiff argues, in a valuation and assessment of such properties other than “in accordance with the formula.” Furthermore, plaintiff says, by providing that mineral properties throughout the State be valued and assessed by a single State official in accordance with a single speei fied formula assures “a uniform rule of taxation” as required by article 10, § 3, of the Constitution (1908) without resort to equalization of assessments by a State board. Finally, plaintiff says that the-requirement of article 10, § 7, of the Constitution (1908) that all property shall be assessed “at its cash value” bars modification by equalization of the value of mineral properties determined by the State’s geologist because, by legislative definition, the value the geologist determines is true cash value.
The difficulty with plaintiff’s theory is that it proves too much. If the geologist’s determination of value of mineral properties cannot be modified by equalization processes because it is true cash value, why cannot it be said that the township supervisors’ and the city assessors’ determinations of value of other properties cannot be modified by equalization, either, because they are required by law to assess at true cash values, too? The fact is that assessments of property are required to be made at cash value as determined by the assessing officer, whether township supervisor, city assessor, or State geologist. Their determinations of cash value are by no means final until subjected to the statutory process of county and State equalization. See Huron-Clinton Metropolitan Authority v. Boards of Supervisors of Five Counties, 304 Mich 328, and School District No. 9, Pittsfield Township v. Washtenaw County Board of Supervisors, 341 Mich 388, 400-407. By specifying the formula by which the value of mineral properties are to be determined initially by the geologist, the legislature cannot override the constitutional mandate found in article 10, § 8 that—
“The legislature shall provide by law for an equalization of assessments by a State board, on all taxable property, except that taxed under laws passed pursuant to sections 4 and 5 of this article.”
Mineral properties are not among those excepted from section 8, nor does section 8 except from its provisions properties assessed throughout the State by the State’s geologist or any other single authority. Once the geologist’s valuation of mineral properties is made and that value is used by the township supervisor or city assessor as the assessed value, the assessment and taxation of such property is no different than the assessment and taxation of all other property in the State.
Only one other issue involved in this appeal need he considered. After the State equalization hoard had met in 1957 and increased Keweenaw county’s total assessed valuation, the increase was spread among the county’s 5 townships. Normally, the increase allocated to Allouez township would have been spread equally among its property owners by uniformly increasing the assessed values determined by the local assessors, hoards of review, and the State tax commission. In 1957 the township’s local assessed value was $2,258,400 and the State equalized value was $3,004,094, an increase of 33%. Thus, normally, plaintiff’s properties assessed by the geologist at $1,358,000 would have been increased 33% to $1,806,398.67, thereby arriving at its State equalized value. Instead of increasing the local assessments on each of the properties in the township by 33% and then applying the township’s millage of 21 mills, the constitutional maximum, the local officials saved themselves 1 step in the task of computing the tax upon each of the properties by increasing the millage rate by 33% from 21 mills to 27.934 mills and applying the increased millage to the original assessment. The net dollar result, of course, was exactly the same as it would have been had the original assessments been increased in accordance with the State equalization adjustment and the legal maxi mum of 21 mills applied to the State equalized assessment.
Had we determined that the geologist’s valuation of plaintiff’s mineral properties could not be affected by the actions of the State equalization board, we would agree with the circuit judge’s conclusion that computation of plaintiff’s tax at the rate of 27.934 mills was illegal. However, having concluded that plaintiff’s mineral properties were subject to State equalization adjustments, it is our judgment that plaintiff was required to pay no more in taxes than it would have been had they been computed properly.
Reversed and remanded for entry of judgment in conformance with this opinion. Defendant may tax its costs.
. Dethmers, 0. J., and Carr, Kelly, Smith, Black,. Edwards and Kavanagh, JJ., concurred.
Pursuant to CL 1948, § 211.53 (Stat Ann 1960 Rev § 7.97).
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Souris, J.
Plaintiff appeals from a judgment based upon a jury verdict in tbe precise amount of his medical expenses incurred as a result of injuries suffered when tbe car in which be was sitting was struck from tbe rear by defendants’ car. He charges that tbe verdict was grossly inadequate because it did not award him damages for bis pain and suffering and for loss of earnings.
In Fordon v. Bender, 363 Mich 124, 126, decided last April, we reversed a judgment for inadequacy of a jury verdict in a personal injury case because tbe great weight of tbe evidence compelled an award of damages for pain and suffering and because failure to award such damages by returning a verdict equal only to plaintiff’s special damages manifested disregard by tbe jury of proper instructions given by tbe court.
We are compelled to reach tbe same result in tbe case at bar and for tbe same reasons. There was evidence from plaintiff that he suffered pain immediately after tbe impact at tbe scene of tbe injury and a policeman testified that, indeed, plaintiff then complained of pain. Plaintiff also testified of his various pains, dizziness, headaches and shortness of breath from tbe date of injury to tbe date of trial. His doctor confirmed bis continuing complaints of pain and testified that pre-existing scoliosis and arthritis could have been aggravated, with resulting pain, by the injury to plaintiff. Defendants’ doctor testified that be found tenderness in plaintiff’s dorsal spine, where the scoliosis and arthritis were located, upon percussion and backward bending. We are convinced by a review of the testimony on this point that the great weight of the evidence preponderates in favor of a finding that plaintiff did, in fact, endure pain and suffering as a result of the injuries caused by defendants’ negligence.
As a matter of fact, the jury must have so found, for included in the plaintiff’s medical expenses were the cost of diathermy treatments and hypodermic injections given him to relieve pain. By its verdict the jury found such treatments and injections to be reasonable in cost and necessary to the treatment of plaintiff’s injuries. Having found there was pain and suffering and having awarded damages to compensate plaintiff for the medical cost of relieving such pain, the jury could fail to award plaintiff damages for the pain already endured only by arbitrary, capricious disregard of the trial judge’s explicit instructions to the jury. The verdict must, therefore, be set aside.
In view of the foregoing conclusion, other questions raised in this appeal, not likely to recur on retrial, are not discussed.
Reversed and remanded for new trial. Costs to plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred. | [
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Souris, J.
Defendant doctor treated plaintiff for various injuries incurred in an automobile accident. Following his discharge by defendant, another doctor discovered that plaintiff had suffered a fractured skull which necessitated surgical repair and which, according to plaintiff, resulted in permanent damage. Plaintiff brought this suit charging defendant with malpractice for failure to diagnose and treat the fracture. The suit was filed 25 months after plaintiff’s discharge from defendant’s care, and 23 months following his discovery of the fracture. At the conclusion of the opening statements, the trial judge directed a verdict in defendant’s favor. He did so on the ground that plaintiff’s statement of his case and of the facts which he expected to prove would not, as a matter of law, support his theory that defendant fraudulently concealed the cause of action, thereby tolling the 2-year statute of limitations applicable to malpractice actions against physicians.
In this appeal, plaintiff attacks the trial judge’s direction of the verdict on 2 grounds: First, he says that the statute of limitations does not begin to run against actions for malpractice until the patient discovers the malpractice. Second, he says that where a fiduciary or confidential relationship exists, such as exists between doctor and patient, even mere silence where there is a duty to speak may constitute fraudulent concealment. Thus, on either or both grounds, plaintiff urges reversal. As to the first, he maintains suit was brought within 2 years of his discovery of the alleged malpractice. As to the second, he maintains his opening statement was sufficient to support proofs of defendant’s repeated assurances that plaintiff’s head pains would soon disappear, which assurances were made when defendant knew or should have known of the skull fracture.
This Court has had occasion in the past to consider what acts constitute fraudulent concealment of a cause of action against a doctor for malpractice. Kroll v. Vanden Berg, 336 Mich 306; Draws v. Levin, 332 Mich 447; Buchanan v. Kull, 323 Mich 381; Weast v. Duffie, 272 Mich 534; De Haan v. Winter, 258 Mich 293; and Groendal v. Westrate, 171 Mich 92 (Ann Cas 1914B, 906). In the last case cited, but the first of those cases decided, Groendal v. Westrate, the Court displayed the law’s proper regard for the protection of the rights of one whose relationship to another is subservient because it is confidential or fiduciary in nature. It is to be regretted that the facts of the other cases dealing with allegations of fraudulent concealment of a cause of action between a patient and a doctor did not require the Court to acknowledge the Groendal Case, which recognized that the “relation of physician and patient, * * * of itself, begets confidence and reliance on the part of the patient” and that in cases where fraudulent concealment by a physician is charged the relationship of the parties “must be critically examined.” It is to be regretted because it might be thought from examination of the subsequent cases that the law of this State draws no distinctions in fraudulent concealment cases between those who deal with one another at arm’s length and those whose relationship is confidential or fiduciary. In malpractice actions against doctors, the law is, and has been at least since the Groendal Case, that a higher standard is applied in determining whether a doctor fraudulently concealed a cause of action from a patient than is applied where fraudulent concealment is alleged in cases between 2 corporations or 2 businessmen dealing at arm’s length. The law does critically examine the relationship between patient and doctor, the disparities between them in knowledge and experience and the reliance placed upon the doctor by the patient in determining whether there has been fraudulent concealment of a cause of action. Such factors must be considered before the Court can determine that the doctor made sufficient disclosure of the facts to his patient, in meaningful language, or that what he did say, the manner in which he said it, or what he failed to say, constitutes fraudulent concealment.
In the case at bar, plaintiff was admitted to a hospital in Alpena for treatment of injuries received in an automobile accident. Dr. Hier examined plaintiff and diagnosed his injuries as lacerations of the forehead and contusions of the chest. He sutured the forehead, and on the following day X-rays were taken of the chest area, but none was taken of the head notwithstanding plaintiff’s complaints of head pains. The doctor assured plaintiff that the headaches would subside in the near future. The next day the doctor again assured plaintiff that the headaches would subside in due time and released him from the hospital with instructions to’ have the sutures on his forehead removed by his family physician. Such were the facts alleged in plaintiff’s declaration and repeated in substance in the opening statement which the trial judge found legally insufficient to constitute fraudulent concealment.
Whatever may be said regarding the medical treatment of plaintiff by the defendant doctor, and it must be kept in mind that we are not yet concerned with the question of malpractice, the trial judge was right in concluding that plaintiff’s allegations of fact did not support his claim that his cause of action was fraudulently concealed from him by Dr. Hier, thereby tolling the statute of limitations.
It was in De Haan v. Winter, 258 Mich 293, in which this Court described what fraudulent concealment is, what must be fraudulently concealed. It was there said (p 296) that “fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action.”
In Weast v. Duffie, 272 Mich 534, an unusual suit in which plaintiff sought in a court of equity to rescind a covenant not to sue which he claimed he was fraudulently induced to give his doctor, the Court considered whether the statute of limitations would have been tolled by the doctor’s alleged fraudulent concealment of a cause of action for malpractice. Fraudulent concealment was there (p 539) defined by reference to 37 CJ, Limitation of Actions, §§358, 359, p 976:
“The fraudulent concealment which will postpone the operation of the statute must be the concealment of the fact that plaintiff has a cause of action. If there is a known cause of action there can be no fraudulent concealment which will interfere with the operation of the statute, and in this behalf a party will be held to know wbat he ought to know, pursuant to the rule hereinbefore stated (i. e., by the exercise' of ordinary diligence).
“It is not necessary that a party should know the-details of the evidence by which to establish his cause of action. It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.”
The De Haem description of fraudulent concealment was applied in Buchanan v. Kull, 323 Mich 381, and the Court ruled that plaintiff’s cause of' action had been fraudulently concealed from her by defendants’ repeated false diagnosis of her continuing complaints following the act of malpractice. It was also applied in Draws v. Levin, 332 Mich 447.
These cases serve only to emphasize the point that it is the cause of action which must be fraudulently concealed by failing to disclose the fact of injury resulting from the malpractice, by diverting the patient from discovering the malpractice or the party responsible therefor, or by other means the effect of which is to conceal from the patient his right to sue. In the case at bar, plaintiff’s own allegations negate his charge that Dr. Hier fraudulently concealed plaintiff’s cause of action. Assuming there was negligence constituting malpractice by the doctor, his concurrent actions as alleged by plaintiff hardly were calculated to draw the veil of secrecy over the act, for Dr. Hier directed plaintiff to his family physician for the purpose of removing the sutures. Were his purpose one of concealment, it is hardly likely that he would have referred plaintiff to one who could be expected to discover the malpractice, as ultimately occurred. Dr. Hier’s referral of plaintiff to his family physician distinguishes this case from Kroll v. Vanden Berg, 336 Mich 306, in which the Court said that had the jury found that the doctor knew the needle was left in the patient’s abdomen and failed to disclose such fact (p 311) “though in the confidential relationship of surgeon and patient,” it could have found such withholding of knowledge was a fraudulent concealment within the meaning of the statute. We can find no purpose to conceal anything in what Hr. Hier is alleged to have done.
Having concluded that defendant did not fraudulently conceal plaintiff’s cause of action and, therefore, that the 2-year statute of limitations applicable to malpractice actions was not tolled, we must determine whether this action was commenced within the time limitation of that statute. The issue is crucial to plaintiff because his suit was started by filing the summons about a month more than 2 years after he was discharged from Hr. Hier’s care. Relying upon De Haan v. Winter, 258 Mich 293, and Draws v. Levin, 332 Mich 447, defendant contends that our Court has determined a cause of action for malpractice accrues at the time of last treatment by the physician and, hence, that plaintiff’s action was barred by the statute.
Plaintiff, on the other hand, insists that in malpractice eases the cause of action accrues only upon discovery by the patient that he has a cause of action, and he maintains that we have so held, citing Kroll v. Vanden Berg, 336 Mich 306. The Kroll Case is not authority for the proposition urged upon us by plaintiff. The opinion in that case deals exclusively with the claim that the statute of limitations was tolled by fraudulent concealment. The Court’s references to plaintiff’s failure to bring action within 2 years after she was informed of the facts constituting the alleged malpractice related, solely to the fraudulent concealment provision in our statute.
Whatever else may be said for or against the last, treatment rule of the De Haan Case, followed also in Buchanan v. Kull, 323 Mich 381, as well as in Draws v. Levin, 332 Mich 447, it does afford that protection against stale claims, and all of their concomitant evils, sought generally to be avoided by statutes of limitations. Having said that, however,, we feel compelled to limit our application here of the last treatment rule to the facts of this case, a case where the patient discovered his cause of action just a month or two after the date of last treatment by defendant but still did not bring suit within the 2-year period. By so saying, we reserve-for future consideration applicability of the discovery rule urged upon us by plaintiff for a case-which presents a factual situation more appealing-than that presented here. See Huysman v. Kirsch, 6 Cal2d 302 (57 P2d 908); City of Miami v. Brooks (Fla), 70 So2d 306; and Ayers v. Morgan, 397 Pa 282 (154 A2d 788).
Affirmed. Costs to defendant.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Souris, J.
Dethmers, C. J., and Carr and Kelly, JJ., concurred in result.
Court Rule No 37, § 2 (1945).
CLS 1956, §§ 609.13, 609.20 (Stat Ann 1959 Cum Supp §§ 27.605, 27.612).
31 Mich L Rev 875, 901.
For an excellent summary of the subject, see Shartel and Plant, The Law of Medical Practice, § 3-29, pp 155-157, and authorities cited therein, particularly 5 11 of Detroit LJ 202 (Í942). | [
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Per Curiam.
In 1957 defendant Malow, then as plaintiff, sued plaintiff Petosky Asphalt Paving Company, then as defendant, in Detroit common pleas to recover the allegedly agreed price of road gravel delivered by Malow for Petosky on 4 public road jobs. In that suit Petosky gave notice of setoff and recoupment, alleging that the delivered gravel did not satisfy contract specifications and, on account thereof and related allegations, that Petosky had suffered damages recoverable against Malow in the sum of $3,000.
Trial to the common pleas judge resulted in a judgment for plaintiff Malow and against defendant Petosky in the sum of $2,705.07 and judgment disallowing . the pleaded counterdemand. Defendant Petosky appealed and the circuit court reversed with remand to common pleas for a partial new trial. According to Petosky’s counsel the common pleas judge thereupon “challenged the right of the circuit court to reverse his findings and refused to grant a partial new trial * * * and reinstated his original judgment for plaintiff.” Another appeal was thereupon taken' to circuit where, according to all counsel, it awaits judicial disposition.
The present suit was filed June 22, 1959, in the Macomb circuit, by Petosky as plaintiff against Ma-low as defendant. The declared cause is the same cause as was counterpleaded and remains counter-pleaded in common pleas. The only difference is that the amount of the bill of particulars has been increased, over the particularized amount billed in common pleas, to $11,240.36.
Defendant Malow moved to dismiss. Judge Spier granted the motion. Plaintiff Petosky appeals.
Affirmed on authority of Chapple v. National Hardwood Co., 234 Mich 296 (44 ALR 804). Costs to defendant.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
Defendant Petosky’s counterclaim totaled $7,647.20. However, for the pleaded purpose of bringing the demand within common pleas jurisdiction, Petosky voluntarily reduced the amount thereof to $3,000. | [
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