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Clark, J.
The charter of the city of Jackson contains provisions relative to publishing in newspaper or newspapers, namely, the substance of proceedings and votes of the city commission, proposed ordinance to be submitted to the voters, statement of time when nominating petitions may be filed, notices of election, notice of bonding election, notice of meeting of board of review, notice to pay taxes, and all ordinances.
The provisions are mandatory, some upon the city clerk, one upon the city treasurer, and as to publication in local newspaper or newspapers. Some sections speak of publication in “some newspaper,” others of “one of the newspapers of the city,” still others of “one or more of the daily newspapers of the city.”
Although the charter did not specifically require advertising for bids for such publishing, and although in some instances discretion respecting it was vested solely in the city clerk or the city treasurer, the city commission decided to and did advertise for bids.
The Jackson Tribune, having an average daily circulation of 5,200, of which 3,600 is city circulation, filed a bid somewhat lower in figures than the bid of the Jackson Citizen Patriot, having an average daily circulation of 28,510, of which 15,937 is city circulation. While the bid of the latter paper was higher in money, it was lower if measured by circulation.
The bid of the latter paper was accepted, and this bill by plaintiffs, taxpayers, was filed to restrain entering into the contract and to compel acceptance of the bid of the Jackson Tribune. From decree dismissing bill, plaintiffs have appealed.
The charter provision under which bids were sought is:
“Before entering into any contract where the estimated cost of the work or material to be furnished under said contract shall exceed the sum of $500, the city commission shall advertise for sealed proposals therefor, and the contract shall be let to the lowest responsible bidder. * * * In such publication the city commission shall reserve the right to reject any and all bids.”
Passing as made unnecessary to decision the question of the right of the city commission under the-charter to seek bids for this publishing, we come first to the question of whether -such -publishing is “work or material to be furnished” as set forth in the charter. The trial court held it was not, citing Frank v. Board of Education, 90 N. J. Law, 273 (100 Atl. 211, L. R. A. 1917D, 206); and Public Ledger Co. v. City of Memphis, 93 Tenn. 77 (23 S. W. 51). Perhaps the decree for this reason may be sustained, but we prefer to rest decision on other ground. If it be conceded that the city commission might seek bids for the publishing, and if it be further conceded that the same was “work or material” under the charter provision, we have still to consider the effect of the charter provision that the commission “reserve the right to reject any and all bids.”
Applicable law is stated in author’s note, 3 Mc-Quillin on Municipal Corporations (2d. Ed.), p. 919:
“Reservation of right to reject any and all bids, where the authorities have power to make such reservation, gives the right to let the contract to any bidder and reject the others, although the one securing the contract is not the lowest bidder; provided, the authorities act in good faith in the exercise of an honest discretion.”
And in text, § 1340:
“The exercise of discretion to accept or reject bids will only be controlled by the courts when necessary to prevent fraud, injustice or the violation of a trust. The court will indulge the presumption that the authorities acted in good faith in awarding the contract.”
And see 44 C. J. p. 112.
Relative to “lowest responsible bidder,” see 3 McQuillin on Municipal Corporations (2d Ed.), § 1331, and 44 C. J. p. 111.
The purpose of publishing was that the people might have notice and knowledge of the affairs of their city. The larger newspaper gave greater serv ice, and was the better agency in that regard. On the basis of circulation, its publishing was more valuable than that <pf the smaller paper, and its bid was lower. In these circumstances, we cannot find that the action of the city commission in accepting the bid of the larger newspaper was arbitrary, unjust, or in bad faith. On full consideration of the record and briefs, we conclude to affirm the decree, with costs to defendants.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, C. J.
This is a suit for specific performance of a contract for the return by the defendant to the plaintiffs of certain stock and for damages ■alleged to have been sustained by the plaintiff Fred J. Reith incident to the breach of a contract whereby he was employed by the defendant for a period of two years, at an agreed salary of $300 per month. The transactions out of which this litigation arises were almost wholly between the defendant and Mr. Fred J. Reith, and for convenience he will be herein denominated as the plaintiff. In March, 1924, certain officers and agents of the defendant corporation approached the plaintiff and induced him to purchase $11,000 par value of its stock. Payment therefor was made by transferring to the defendant company $11,000 par value in stock of the Detroit Fidelity & Surety Company. As a part of this transaction, it was agreed in writing that the defendant company would return to Reith stock of like value in the Detroit Fidelity & Surety Company, “whenever said Reith shall become dissatisfied or deem himself insecure in his said investment, within a reasonable time after demand for the return of said Detroit Fidelity & Surety Company stock.” Practically at the same time and obviously resulting from the same negotiations, the contract of employment above referred to was consummated. The stock in the defendant company was issued to the plaintiff; and there is some evidence from the records of the corporation that he was elected a director thereof March 11, 1924. He entered upon his employment April 15, 1924. He was notified of his dismissal on the 15th of September following. Two days later the plaintiff caused the following written notice to be served upon the defendant company:
“I hereby notify you that I have become dissatisfied and deem myself insecure in my investment, and hereby demand a return of $11,000 worth of stock of said Detroit Fidelity and Surety Company, and upon its return I hereby offer to return to you all stock of the University Housing Corporation held by me and my wife, Ella B. Reith, also the bonds pledged to secure the agreement. * * * ”
The defendant did not comply with the foregoing demand, and suit followed, resulting in the decree in the circuit dismissing the bill of complaint on the ground that the defendant’s alleged agreement to return plaintiff’s stock to him was ultra vires, and that‘equity did not have jurisdiction of plaintiff’s claim for damages based upon the breach of his employment contract. The plaintiffs have appealed. In this court appellee contends that the decree of the lower court should be affirmed because it appears from the record that the defendant corporation was insolvent at the time the plaintiff sought to have his contract relative to the repurchase of his stock enforced ; and, further, if the insolvency of the defend ant does not appear from the proof in the case, still the plaintiff is not entitled to relief because as ■ a condition of recovery the burden rested upon plaintiff to establish the solvency of the defendant company at the time he sought to have it repurchase his stock.
We are of the opinion that this case is controlled by the law as announced in McIntyre v. E. Bement’s Sons, 146 Mich. 74 (10 Ann. Cas. 143), and Barden v. A. Heller Sawdust Co., 240 Mich. 549. In the latter case Justice Fellows, writing for the court stated:
“We are satisfied that the rule that while a solvent corporation may purchase its own stock, at least when done from surplus, an insolvent corporation may not do so, and that such transactions are invalid and against public policy, is a safe rule and one which should be followed by this court.”
The facts in the case at bar are strikingly similar to those out of which the case of McIntyre v. E. Bement’s Sons, supra, arose. It was therein stated:
“If the evidence were less conclusive upon this point (the question of insolvency of' the corporation), I think, for reasons hereinafter given, there is no theory permitting a recovery by the plaintiff which does not require him in this case to establish affirmatively the solvency of the corporation at the time of exercising his option.”
Under the record in this casé it is a serious question if it does not affirmatively appear that the defendant corporation was in fact insolvent at the time plaintiff sought to recover the property he had delivered to it in payment of his stock. It clearly appears that the plaintiff has failed to sustain the burden of proof in that it is not established by the record that the defendant corporation was in fact solvent at the time plaintiff sought performance of its agreement to repurchase his stock. Under the rule of McIntyre v. E. Bement’s Sons, supra, the plaintiff did not establish his right to the relief sought relative to his stock subscription. The decree of the lower court in this respect must be affirmed.
The other branch of this case, in which the plaintiff seeks to recover damages for breach of contract of employment, presents no issue which would give the equity court jurisdiction. Instead, it is a matter in which the defendant has a right, to a trial by jury, if it so desires. The decree of the lower court must be affirmed, but with the provision that the plaintiff, Fred J. Reith, at his option, may have the case transferred to the law side of the court for the purpose of adjudicating his right to recover damages for the breach of his contract of employment with the defendant. The appellee will have costs of this court.
Fea tv, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, J.
August 23, 1923, the corporate defendants, by Robertson, who was president of both, contracted in writing to sell plaintiff a house and barn, to be removed from the premises, for $1,000, of which $100 was paid down, $400 August 27th. Defendants did not own the premises but Associated Theaters Corporation had contracted to purchase them. Plaintiff was to pay the balance of the purchase' price of the house and barn upon showing of title in defendants and upon delivery to him of good title papers and possession, and was to remove the buildings within 30 days after receiving possession.
The contract contemplated closing of the deal within 60 days, bnt title was not obtained by defendants until February 15, 1924, when Robertson took deed and conveyed to Imperial Building Corporation. The vendor continued in possession until April 4th. By letters to the plaintiff, Imperial Building Corporation, which was handling the transaction, advised him that the date of delivery of possession would be April 15th. Plaintiff made a tender of the balance due, which was refused. He and his attorney testified the tender was made on April 14th. The secretary of defendant admitted the tender and its refusal, uncertainly denied that it was made on the 14th but did not deny it may have been made on the 15th. The tender was not refused on the ground of expiration of time.
Defendants wrecked the building. Accepting their statement, they began a few days after the 15th, after tender by plaintiff and without having made tender of the title papers or possession. Plaintiff brought suit on September 3, 1924. The court directed a verdict in his favor, leaving to the jury only the amount of damages. The judgment runs against the corporate defendants, the suit having been dismissed as to Robertson by stipulation of counsel.
Defendants’ counsel contends the testimony raised a jury question on whether defendants breached the contract. In his brief counsel has not pointed out the dispute either by quotation or citation. It was. undisputed that defendants wrecked the building before putting plaintiff in default by tendering him possession and title papers. Also, plaintiff had at least until April 15th to make payment, there was no dispute that he made tender on or before that date, and defendants wrecked the buildings within the 30 days allowed plaintiff by the contract to remove them. There was no jury issue on liability.
Defendants contend plaintiff cannot maintain the action because he is not the real party in interest (3 Comp. Laws 1915, § 12353), as he was adjudged a bankrupt on July 9, 1925, and under section 70a of the bankruptcy act (11 USCA §110 [a]), his title to the cause of action vested in the trustee.
The petition in bankruptcy was filed June 23,1925, after commencement of this action. The trustee was appointed February 9, 1926, and discharged and the estate closed as a “no assets” case on June 28, 1926. Section 11 c of the bankruptcy act (11 USCA § 29 [c]) provides:
“A trustee may, with the approval of the court, be permitted to prosecute as trustee any suit commenced by the bankrupt prior to the adjudication, with like force and effect as though it had been commenced by him.”
The intervention of the trustee is optional and subject to the direction of the court. The statute was evidently so enacted because it may not be for the best interest of the estate to incur the expense of prosecuting claims of doubtful value. Unless the trustee intervenes, the bankrupt may continue prosecution of the action.
“An action by or against the bankrupt in the State court does not abate upon the adjudication in bankruptcy or appointment of a trustee, and in the absence of an application by the trustee for substitution it may be prosecuted or defended by the bankrupt.” Hahlo v. Cole, 112 App. Div. (N. Y.) 636 (98 N. Y. Supp. 1049).
See, also, Melnick v. Commercial Cas. Ins. Co. of Newark, 221 App. Div. (N. Y.) 599 (224 N. Y. Supp. 516); Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530 (70 S. E. 126, 33 L. R. A. [N. S.] 1061); Griffin v. Mutual Life Ins. Co., 119 Ga. 664 (46 S. E. 870); Thatcher v. Rockwell, 105 U. S. 467; Johnson v. Collier, 222 U. S. 538 (32 Sup. Ct. 104).
The estate having been closed, the presumption is that the control of the claim was properly left in the hands of the bankrupt (Conner v. Southern Express Co., 42 Ga. 37 [5 Am. Rep. 543]), and he may continue prosecution of all actions pending at the time of his bankruptcy and which remained unsettled. Black on Bankruptcy (4th Ed.), §358; Peery v. Carnes, 86 Mo. 652.
In case the defendants have apprehensions that they may be compelled to pay twice, they may be allayed by appropriate action of the bankruptcy court on their petition. Johnson v. Collier, supra; Griffin v. Mutual Life Ins. Co., supra.
The court charged in substance that, in determining damages, the jury should find and use as a basis the fair cash value or worth of the buildings as they stood, keeping in mind that they were .to be removed from the premises, and. allow such worth, less the agreed purchase price. The charge was correct. The amount allowed by the jury can be computed precisely from the testimony. It has not the appearance of a compromise verdict. The reduction by the court was ample, within the testimony, and, as entered, the judgment is not excessive.
Defendants’ other contentions are without merit, and need no discussion.
Judgment is affirmed.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, C. J.
James W. Paisley, while a minor, contracted to purchase certain land of Edward L. Betts, the plaintiff herein. Paisley paid Betts certain sums of money on his contract. Upon becoming of age, Paisley disaffirmed the contract and brought suit against Betts to recover the money he had thus paid. Betts made a motion to dismiss the suit on the ground that the tax on the contract imposed by the statute (3 Comp. Laws 1915, §§ 4268-4277), had not been paid. Section 4275 of the statute provides:
“No mortgage or lánd contract, which is subject to the tax imposed by this act shall be released, enforced, discharged of record or received in evidence in any action or proceeding at law or in equity, nor shall any assignment of or agreement extending any such mortgage or land contract be recorded until the tax imposed thereon by this act shall have been paid as in this act provided.”
The motion to dismiss was denied. Plaintiff herein seeks by mandamus to compel the entry of an order dismissing Paisley’s suit. The question thus presented is determined by the recent decision in McDonald v. Betts, 246 Mich. 585, which was handed down by this court since the order herein sought to be vacated was made. Plaintiff was entitled to an order dismissing Paisley’s suit unless the latter paid the statutory tax on the contract within a reasonable time, which should have been fixed by the court in such order, and a stay of proceedings should have been granted until payment was made. Unless the circuit judge shall enter the order of his own motion, the writ will issue. Costs in this court may be taxed by the plaintiff against James W. Paisley.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, J.
On October 27, 1919, plaintiff opened an individual savings account at a branch of defendant bank in the city of Detroit, deposited $30, signed a signature card and received a passbook, in which she agreed to the rules and regulations of the bank governing savings deposits. Three days later her husband, Louis Savich, deposited $100 in the account and requested that it be changed to a joint account, as he wanted to use it only temporarily to save money to buy an automobile. Defendant’s manager, Ellison, stamped the signature card above plaintiff’s signature with words appropriate to constitute a joint account and Savich signed the card. Ellison and Savich both testified that the change was so made and plaintiff was in the bank on that occasion and expressly agreed to it. Plaintiff did not deny it, except as denial may be inferred from the single statement, “I did not say to Mr. Savich or to the American State Bank that Mr. Savich would be allowed to withdraw $1,100 from my bank account.” No change was made in the passbook.
Several deposits and withdrawals followed. On February 10, 1920, Savich drew $180 in plaintiff’s presence and with her consent. This left the balance of $20. On April 6 and 7, 1920, Savich made four deposits aggregating $1,100. On April 8th he presented the passbook, drew $1,100, received a cashier’s check payable to an automobile agency, and bought a car. There was testimony that plaintiff waited outside the bank in a car at the time, and knew her husband drew the money. She denied this and said she first knew' of the withdrawal when Savich brought the passbook home that day and gave it to her. Within a few days she drew the balance of the account, except $1.00, which the manager induced her to leave to keep the account open. About two years later plaintiff obtained a divorce from Savich.
Plaintiff said she complained to Ellison about the withdrawal of $1,100 a short time after it happened, but he said she did not mention it until the divorce suit was begun and then in complaint against her husband. She commenced this suit July .21, 1925, her declaration being in trespass on the case for negligence of the bank in paying the money out of her account to a person not entitled to withdraw it. She gave no reason for the delay. Plaintiff had verdict of a jury and judgment. Defendant made motion for new trial, which was denied.
The court submitted to the jury two issues upon the question of liability: (a) Whether plaintiff consented to the change of the account to a joint account, and (b) whether the money was actually hers. In the motion for new trial and in the assignments of error defendant raised a number of other issues which it claimed affected liability and should have been included in the charge to the jury. Defendant presented no requests to charge upon such claims, 'nor, when the opportunity was given at the end of the charge for further suggestions, did it mention them. They are not entitled to consideration here.'
The court, in setting out the claims of defendant, instructed the jury that it was claimed that the change to a joint account occurred at the time plaintiff was seen by the bank officials sitting in an automobile outside. This was an erroneous statement of fact, and particularly in view of plaintiff’s failure to categorically deny consenting to the change, it was misleading as to an essential issue and was reversible error.
Upon the issue of ownership of the $1,100, plaintiff testified her husband gave it to her. Defendant was not permitted to show that she had stated under oath in the divorce suit that she had earned the money herself in business. The testimony was competent as tending to impeach plaintiff and should have been received.
Except for remote inferences, plaintiff did not deny consenting to the change of the account. The testimony that she did consent was direct and explicit. Ellison has not been an employee of defendant bank for several years. The verdict was against the great weight of evidence.
Defendant presents several other claims in connection with the admission of testimony, but as they are not likely to again arise they will not be discussed.
Judgment reversed, with new trial and costs.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
A lease of certain premises in the village of Cassopolis by plaintiffs to defendant contained the following provisions:
“The said tenant shall have the right and privilege to lease the said property on the terms provided herein for a further period of four years ,at the expiration hereof, subject to the conditions herein stated. * * *
“This lease and renewals thereof is made subject to the right of the landlords to sell such building after one year from the date hereof. ’ ’
During the third year the plaintiffs sold the premises and sought to terminate the lease. The trial court entered a judgment for restitution. Defendant seeks review by writ of error.
Defendant’s right to possession and occupation of the premises was conditional on plaintiffs’ making-sale thereof, and terminated when such sale was made. Wallace v. Bahlhorn, 68 Mich. 87; Harwood v. Williams, 161 Mich. 368.
The judgment is affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
Clark, J.
Defendant, John C. Mann, owned the Douglas House in Houghton. He entered into an agreement which contemplated sale of this hotel property to Douglas House Company, a corporation'. The corporation entered into possession and management, and began making improvements preparatory to opening and operating. Mr. Mann continued to live at tbe hotel.
Plaintiffs, copartners,- were engaged by the corporation to do plumbing and to furnish material, which they did, and all of which was charged on plaintiffs’ books to the corporation. Plaintiffs filed as against the corporation statement of lien and later a bill to enforce it, which was dismissed. Then plaintiffs began this action in assumpsit to recover of Mr. Mann, asserting as against him a promise to pay. The testimony to support the averment of promise is that Mr. Mann gave certain orders or directions with respect to the work. This is explained by showing that, of the persons about the hotel, Mr. Mann alone knew of the location and installation of heating pipes, etc., and that consequently his advice was sought. It is not disputed that Mr. Mann told plaintiffs that he was not to pay. Plaintiffs ’ direct testimony leaves the time of making such statement somewhat indefinite but on cross-examination this was corrected and made definite and the time fixed as before the furnishing of labor and materials for which recovery is sought.
Plaintiffs had verdict and on decision of a reserved motion to direct verdict the court ordered judgment for defendant on the ground that the evidence presented no issue of fact. Plaintiffs bring error.
We are in accord with the trial court, who based his decision on Steinberg v. Builders Lumber & Wrecking Co., 238 Mich. 181, quoting:
“But the clarification of ambiguous testimony creates no issue of fact for the jury. West v. Railroad, 229 Mich. 590. Conclusions stated by a witness are eliminated by facts subsequently given by him and inconsistent therewith. * * * When a witness makes general statements calling for elucidation by way of specific facts' and elucidates, the explanation governs in considering the direction, of a verdict.”
And on Kurtz v. Railroad Co., 238 Mich. 289:
' “It is a rule of law that testimony by way of correction of a misstatement does not make an issue of fact. ’ ’
Judgment affirmed.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This is an appeal from a judgment in condemnation proceedings by the city of Detroit to take certain land for park purposes.
At the time the proceedings were instituted, the Belle Isle Coliseum Company was a lessee of a portion of the land on which it operated the pier ball room and coliseum of amusements. Francis O. Graukler was the owner of the fee. The unexpired term of the lease was 24 years. Under its terms, the lessee was to erect and did erect the buildings which were to become the property of the lessor at the expiration of the lease. This is the second trial. On the first trial, the lessee was allowed $120,000 for business losses. A new trial was granted. On this trial, the lessee recovered a judgment for six cents. Before verdict in the first trial, the lessor and lessee entered into an agreement the applicable portion of which reads:
“For the purposes of the pending trial of the above entitled cause only and not otherwise, the value of the leasehold interest of the Belle Isle Coliseum Company and all parties claiming under it, are agreed to be $280,000.”
This amount has been paid to the lessee, and when that fact appeared in the second trial, the city took the position that the lessee had thereby relinquished all right to further use of the property, and for that reason could not recover damages for loss of business. It was contended on the part of the lessee that the stipulated sum of $280,000 was not payment for its leasehold interest, but was for the buildings, the use of which it surrendered to the lessor 24 years before the time specified in the lease. It further contended that in any event a settlement for the leasehold interest was entirely apart from its business loss. ' These contending claims present the principle issue in the case.
In view of the plain and unambiguous language of the stipulation, we must assume that the lessee settled with the lessor for its leasehold interest, and received therefor the sum of $280,000. The question is whether it is entitled to recover damages for business losses in addition to the value of its leasehold estate. It is here seeking to recover its prospective profits for the unexpired term of the lease. These profits are estimated from the net profits for the past five years, which, the testimony shows, averaged $43,000 a year. It might be said that the prospective profits are too speculative, but we prefer to rest our decision on other grounds. It is our opinion that all of the damages recoverable in this case are included in the value of the leasehold interest for which the lessee has received payment.
In a condemnation proceeding, the general rule as to damages for the taking of an entire leasehold interest is the fair market value of the lease. Loss of profits and injury to business are not recoverable. Lewis on Eminent Domain (2d Ed.), § 487; cases cited in note, page 869, Ann. Cas. 1918 B, 869.
In Michigan, this court has held that the owner of property taken may recover for interruption of business, but it has not gone so far as to hold that where his entire estate is taken he may recover for loss of future profits as a substantive element of damage. Grand Rapids, etc., R. Co. v. Weiden, 70 Mich. 390; Detroit v. C. H. Little Co., 146 Mich. 373.
■ Where an entire leasehold interest is taken, it is a sensible and just rule that confines the damages to the fair market value of the lease, and, in case of exceptional circumstances where it has no market value, then the damages are the actual value. In estimating the value, it is proper to consider the location of the premises, their special adaptability to the business there being conducted, the length of time it has been established, its earnings and profits, the unexpired term of the lease, and every other fact that may affect its value. All of these matters go to enhance the value of the lease. They are not substantive elements of damages in condemnation proceedings.
In the instant case, the-lessee stipulated that the value of its leasehold interest was $280,000. The profits of the business, now the subject of this suit, are included in the stipulated value of the leasehold, for which it has received payment from the lessor. It does not .claim anything for interruption to business. The only other claim of damage that it could properly urge would be for the value of its lease, and for that it has settled. It follows that there can be no recovery in this case.
The judgment is affirmed, with costs.
North, C. J., and Read, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
The parties are husband and wife. They have no children except a girl three years old whom they adopted.
The plaintiff’s bill for divorce charges cruelty, chiefly that defendant consorted with other men. Defendant filed answer and croSs-bill charging nonsupport.
Defendant had decree awarding her divorce, custody of the child, and a small periodical allowance, four dollars a week, toward support of herself and child. Plaintiff has appealed.
Plaintiff alone made case for divorce. The record is persuasive that defendant, in attending dances with other men, in riding with and consorting with them, has been guilty of extreme and répeated cruelty toward plaintiff. See Bearinger v. Bearinger, 170 Mich. 661; Eistedt v. Eistedt, 187 Mich. 371.
The decree will be modified to award divorce to plaintiff. The child has a good home with defendant’s parents. It'was proper to decree support for a legally adopted child. Burk v. Burk, 222 Mich. 149. And the adoptive mother is preferred respecting this child of tender years. Carlson v. Carlson, 237 Mich. 105. Of course, the decree in this regard may be modified later as occasion may require.
The decree, so modified, is affirmed, without costs.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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1
] |
North, C. J.
On and prior to January 4, 1923, Anthony Kramer and his wife Arline Kramer were the owners as tenants by the entireties of two parcels of land in Wayne county, Michigan. Each parcel had theretofore been sold by Mr. and Mrs. Kramer on a land contract, which gave the vendee immediate possession and contained the other usual terms of such contracts. On the above date Mrs. Kramer died, and at that time there was still unpaid on these two contracts substantially $13,000. Subsequently the balance of one of the contracts was paid to Mr. Kramer and the land conveyed by him to the vendee. And since the death of Mrs. Kramer, the defendant has also continued to collect the installments which have accrued on the other contract. By .this bill for discovery and accounting the administrator and heirs of Mrs. Kramer’s estate seek to- recover one-half of the money thus paid to the defendant. The trial court dismissed the bill on the ground that the defendant as a surviving spouse was entitled to all of the purchase price unpaid on these contracts at the death of Mrs. Kramer. The plaintiffs have appealed, and assert that by entering into the executory contracts for the sale of these two parcels of land, Mr. and Mrs. Kramer terminated their respective rights of survivorship in the properties and became tenants in common; and that one-half of the contract price unpaid at Mrs. Kramer’s death belongs to her estate. This claim is based on the theory that by giving the contracts Mr. and Mrs. Kramer converted their interest in the property into personalty, and that, generally speaking, there is no right of survivorship in personalty in this State.
The property rights herein involved became vested at the death of Mrs. Kramer in 1923, and hence we. are not concerned with subsequent legislation in this State (Act No. 126, Pub. Acts 1925, and Act No. 212, Pub. Acts 1927), which under like circumstances would now vest complete ownership ill the surviving spouse.
■ In certain cases we have held that after sale of real estate upon executory contracts, under the equitable doctrine of conversion, the interest of the vendors became personal property. Bowen v. Lan sing, 129 Mich. 117 (57 L. R. A. 643, 95 Am. St. Rep. 427); Detroit Trust Co. v. Baker, 230 Mich. 551. But, there is no decision' of this court which passes directly upon the question here involved, namely, whether a husband and wife holding real estate by entireties and who sell the same on executory contract thereby divest themselves of the right of survivorship. The holdings of courts that upon the execution and delivery of such a contract, the remaining interest of the vendor in the property becomes personalty and the interest of the vendee realty, are based upon the theory of equitable conversion. It is said the vendor holds the title to the land in trust for the vendee, and likewise the vendee holds the purchase price in trust for the vendor. As has been pointed out by eminent authority, this theory at best is somewhat far fetched. See note to Pomeroy .Equity Jurisprudence (4th Ed.), § 2261. Necessity has compelled the adoption of some rule of property by which the rights of descent and. distribution are definitely fixed; and it may be conceded that in the absence of some controlling circumstances to the contrary, the application of the doctrine of equitable conversion in the manner, above suggested accomplishes a fairly just result, But this theory, which is no more than a legal fiction, should not be applied in such a manner or under such circumstances as will confessedly defeat the disposition that one may make of his or her property so long as such disposition is not in violation of law.
Carried to its logical conclusion, the doctrine of equitable conversion leads to many strange- and serious results, especially as applied to lands held by entireties. If upon giving to a third party an executory contract to purchase, the estate by entire- ties becomes a tenancy in common, then either of the vendors could at once demand and secure partition, and likewise the judgment creditors of either, spouse could levy upon and sell the one-half interest of such spouse to satisfy the claims of such creditors. In the instant case, in fulfillment of one of these contracts, the surviving spouse has undertaken to convey to the vendee complete title to the land which Mr. and Mrs. Kramer held by entireties. If upon execution of the contracts to sell this parcel, they become tenants in common, the attempt by the-survivor to convey full title to the vendee has failed, and instead only a one-half interest has passed under the deed of Mr. Kramer as survivor. This would be in conflict with an understanding and construction of the law of survivorship as applied to estates by entireties which has. prevailed in this State for many years, and would seriously impair the title to every parcel of real estate which has been thus conveyed. Also in the instant case, Mr. and Mrs. Kramer reserved the right to place a mortgage upon their interest in these properties after giving the contracts. Had they given such a mortgage, it would hardly be contended that it was a chattel mortgage because it covered only the interest of the vendors which had become personal property under the doctrine of equitable conversion.
We have noted the above as illustrative of the fact that while it may be convenient and productive of just results to apply the doctrine of equitable conversion for some purposes and under certain conditions, still it will not do to apply it under such circumstances as will obviously defeat the lawful undertaking of the parties concerned. To hold in this case that on account of the equitable doctrine of conversion the respective rights of survivorship between Mr. and Mrs. Kramer were terminated by the execution of executory contracts to sell, is to nullify the settled plan for tbe disposition of their properties which they deliberately adopted without there being the slightest proof of any intention or desire on the part of either so to do. It is of little consequence in this case whether it is held that the remaining interest of the vendors in the contracted lands is realty or personalty. If it is realty, under the well-established law of this State the right of survivorship vested title in Mr. Kramer; and if it is personalty, it is equally plain that under our law these parties had a right to arrange by contract for survivorship in such personalty. Regardless of whát may have been said in some of the earlier decisions of this court, it is now the established law of this State that in the absence of statutory provisions to the contrary a right of survivorship may be created in personal property. Lober v. Dorgan, 215 Mich. 62; Scholten v. Scholten, 238 Mich. 679; In re Peterson’s Estate, 239 Mich. 452; Forler v. Williams, 242 Mich. 639. We think it conclusively appears in ■ this record that Mr. and Mrs. Kramer so arranged their respective properties that in effect it amounted to a contractual undertaking that each should take and hold a right of survivorship in the other’s property. Each was the owner of real property, they deeded to a third party, and he redeeded to them the combined properties as tenants by the entireties. For six years next prior to her death, Mrs. Kramer and her husband continued to hold all their real estate in this manner. Neither of them ever intended or attempted to terminate or divest the estate so created. If Mrs. Kramer by will had left all her real estate to her surviving husband, the court would hold it to be its plain, duty to carry into effect the obvious intent of the testatrix as the same appeared in her last will and testament. It is equally the duty of the court to give the force and effect to the deeds of Mr. and Mrs. Kramer whereby they created each in the other a right of survivorship. Scholten v. Scholten, supra. In so holding we are in entire accord with the rights of survivorship as adjudicated in former decisions of this court. Dickey v. Converse, 117 Mich. 449 (72 Am. St. Rep. 568); In re Morris’ Estate, 210 Mich. 36.
While the question here presented was not specifically passed upon, in New York the right of survivorship does not appear to be terminated when tenants holding by entireties execute a contract for the sale of the land so held. McArthur v. Weaver, 129 App. Div. 743 (113 N. Y. Supp. 1095).
The circuit judge was right in holding that notwithstanding they entered into executory contracts to sell and convey title to these parcels of land, the survivor of these two tenants who held the land by entireties was and is the sole owner of the interest which Mr. and Mrs. Kramer had in the property at the time of her death. The. decree of the lower court is affirmed, with costs of this court to the appellee.
Fead, Fellows, Potter, and Sharpe, JJ., concurred with North, C. J. Wiest, Clark, and McDonald, JJ., concurred in the result. | [
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] |
Fead, J.
This is a suit for divorce in which defendant had decree on cross-bill, with custody of two children, Richard, 4 years old, and Robert, 11. They have two other children, Doris, 16, and Russell, 17.
The parties were married in 1909, and lived together in Muskegon county some 12 years. No serious trouble developed during that period. They then purchased a store in Pine River, Minnesota, and moved there. The store venture was a failure, and defendant returned to Michigan. Plaintiff did not come, but remained in Minnesota with the children. She afterward obtained a divorce in that State. While divorced, she associated with a married man who had an invalid wife. In 1926, she returned to Michigan and remarried defendant. She did not care for him, and said she remarried him because she could not support herself and the children on the money he sent her. In a short time she refused to cohabit with him, and persisted in the refusal. Her claim that he communicated a disease to her does not sound probable as she stated it, and it was not supported by the findings of the physician who examined her. Trouble arose because of a present of money she received from ,the Minnesota man, and from her conduct with one Holman, a leader in the Spiritualist church, of which she became an attendant. Her assertion that her relations with Holman were irreproachable was not substantiated. While there was no direct proof of illicit conduct, their association was too frequent, too late at night, and too disregardful of the protests of her husband, the opposition of her children, and the open threats of her brother to do Holman bodily injury, to warrant the conclusion that it was casual and platonic. Because of it she neglected Richard, kept Robert out of school to take care of him, often left both with Doris, and sometimes kept the children out at entirely unreasonable hours in order that she might be with Holman. If not illicit, the relationship was at least so improper as to render the marital status intolerable. The association continued to the time of trial. The decree of divorce was properly granted defendant.
The serious question is as to the custody of the two younger children. The court held that plaintiff was not the proper person to have the custody while her present course of conduct continues. In the opinion the suggestion was made that plaintiff could move to amend the decree in this respect under changed conditions, thus holding out a suggestion which ought to be a controlling inducement to her to recognize the seriousness of her conduct and the need for reformation. While the natural and statutory (3 Comp. Laws 1915, § 11484; Carlson v. Carlson, 237 Mich. 105) preference of the mother to the care of the children of tender years is undoubted, the welfare of the children is of first consideration. The chancellor had the advantage of personal observation of the parties, and we do not feel that his determination should be overruled.
Decree is affirmed, without costs.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
North, C. J.
The defendant in this case is a physician who has been engaged in the practice of medicine in the State nearly 40 years. In June, 1927, he was convicted of violating Act No. 343, Pub. Acts 1925, which provides for the registration of births. In November, 1928, he was charged with committing a second offense in violation of the same statute. Conviction and sentence followed. The defendant reviews by writ of error. The statute in part is as follows:
“Section 1. The State department of health shall have supervision of the registration of births and deaths in this State. It shall require the registration of all hirths and deaths in each primary registration district, as constituted by this act. The State commissioner of health with the advice and consent of the public health council may formulate such rules and regulations supplementary to the provisions of this act and not inconsistent therewith, as may be necessary to carry out the provisions hereof. * * *
“Seo. 7. The State commissioner of health shall prepare and furnish to the registrars all forms and blanks required by this act * # * . The form of such certificates and blanks and the information to be furnished thereon shall be determined by him but shall conform to the standardized form as nearly as possible. * # *
“Sec. 12. The birth of each child born in this State shall be registered within five days after the date thereof. A certificate of such, birth shall be filed with the registrar of the district in which it occurred. It is hereby made the duty of the physician, midwife, or person acting as midwife in attendance at such birth, to file the certificate. If no physician, midwife, or person acting as midwife was in attendance, it shall be the duty of the father or mother of the child, the householder or owner of the premises or the manager or superintendent of the public or private institution where the birth occurred, in the order named, to report such birth to the local registrar within five days thereafter. If the person required to file such certificate is unable to obtain any item of information required to be furnished, the registrar shall secure the same if possible from any person having such knowledge and complete the certificate of birth.”
The only question involved in this case is the constitutionality of the act under which the prosecution was brought. The defendant’s contention is stated in his brief as follows:
“Respondent’s defense is that the act in question is unconstitutional in that the statutory period of five days in which the physician is to file the certificate of birth and other provisions in the act are so unreasonable, harsh, and oppressive as to bring it within the prohibitive provisions of the Federal and State Constitutions; also, that the act arbitrarily and unlawfully discriminates against the physicians as a class; that it is a taking of private property without due process of' law; that the act is unconstitutional in that it violates the constitutional provisions prohibiting cruel and unusual punishment, being the claim that to arbitrarily punish a physician as provided in the statute where there is no wilfulness or wrongful intent is arbitrary, oppressive, and high-handed legislation, also, that the legislature has delegated legislative power to the department of health.”
The specific constitutional provisions which defendant claims this act offends against are the 5th, 8th, and 14th amendments to the Federal Constitution, and sections 15 and 16 of article 2 of the State Constitution, whereby every citizen is guaranteed (1) equal protection of the laws; (2) that no State shall make or enforce any laws which shall abridge the privileges or immunities of a citizen of the United States; (3) that he shall not be deprived of life, liberty, or property without due process of law; (4) that excessive fines will not be imposed, nor (5) shall cruel and inhuman punishments be inflicted. It is also claimed by the defendant that this act is invalid because it seeks to delegate to the health department powers vested in the legislature, in violation of article 5 of the State Constitution. The statute must stand or fall as an exercise of the police power of the State. The pertinent inquiry is whether the act is a valid exercise of that power. By it certain matters which have to do with public health, welfare, and safety are regulated. In Dobbins v. Los Angeles, 195 U. S. 223 (25 Sup. Ct. 18, 49 L. Ed. 169), it is said:
“Every intendment is to be made in favor of the lawfulness of the exercise of municipal power, making regulations to promote the public health and safety, and that it is not the province of courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people in the community. But notwithstanding this general rule of the law, it is now thoroughly well settled by decisions of this court that municipal by-laws and ordinances, and even legislative enactments undertaking to regulate useful business enterprises, are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or to use and enjoy property.”
Both in his brief and in the oral argument the contentions most stressed by the defendant are (1) that the time limit of five days within which the physician is required to file the report is so short that it is unreasonable, and inasmuch as unintentional violations thereof subject the offender to a penalty it results in cruel and unusual punishment; and (2) also that, since no fee is provided in the act for making the report, it is an attempt to compel service to the State without compensation, thereby depriving the party rendering such service of property without due process of law.
At the trial the defendant offered testimony of numerous other physicians to the effect that an unreasonable hardship is imposed upon them by this enactment, and that in many instances it is impossible to obtain and report all the information sought by the department of health within the time limit of five days. A reading of section 12 of the act itself discloses that provision is made for exactly such contingencies. Obviously, any attending physician becomes possessed' of certain information required by the blank form upon which the report is made to the department of health under this statute. For example, he certainly would have information concerning the following: Whether the child was born dead or alive, the surname, the birthplace, the sex, whether the birth was of a single child, twins, or triplets, date of the birth, whether the child’s eyes had been treated at birth as required by law, and whether there was any apparent serious malformation or defect. In nearly every case the following required information could also be obtained without serious trouble or inconvenience, to-wit: The given name of the child, the number in order of birth in the family, legitimacy; and as to each parent the name, residence, color, or race, age, birthplace, and occupation. Also the number of children born of the mother and the number living* at the time. The foregoing is the extent of the information required by the State health department under this statute. While it is obvious that in certain cases compliance with this law might result in some inconvenience to the attending physician, it cannot be said that it imposes an undue hardship or burden, especially in view of the importance of perpetuating in the form of a permanent record the information thus obtained by the State. Nor can it be said that the requirement of the statute that this information shall be filed within five days after the birth of the child is unreasonable, especially in view of the provision in section 12 that in case a physician “is unable to obtain any item of information required to be furnished, the registrar (with whom the same is filed by the physician) shall secure the same if possible from any person having such knowledge and complete the certificate of birth.” The statute thus contemplates and provides for filing an incomplete report in those cases wherein the physician is unable to obtain all of the desired information.
The contention made by the defendant that, because no compensation is provided in the statute for making and filing the report, he is thereby deprived of property without due process of law, and further, that physicians as a class are thereby deprived of equal protection of the laws, is not tenable. The mere circumstance that there are clerks and other employees in the health department who may render some service in classifying and compiling these statistical facts, and that they are paid for such services, does not render this statute unconstitutional on the ground that in so far as the matter of compensation is concerned, it does not apply alike to all persons within the class affected by it. By its terms the statute is made applicable to certain persons in attendance at the birth of a child: physicians, midwives, etc. This is a complete and logical classification for the purpose of this legislation.
Much reliance is placed by the defendant on State v. Boone, 84 Ohio St. 346 (95 N. E. 924, 39 L. R A. [N. S.] 1015, Ann. Cas. 1912C, 683), and again reported in 85 Ohio St. 313 (97 N. E. 975, 39 L. R A. [N. S.] 1019); but the act there held to be invalid differed from the Michigan act, in that it provided:
“No certificate shall be held to be complete and' correct which does not supply all of the items of information, * # * or satisfactorily account for their omission. And any physician or midwife * * * who shall neglect or refuse to file a proper certificate of birth with the local registrar, within the time required by this act, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined,” etc. 99 Ohio Laws (1908), p. 296.
In the prevailing opinion in the Boone Case it is conceded that the State may require a physician to report births professionally attended by him; and it is interesting to note that such a law without a provision for compensation was enacted in Ohio following the decision in that case and has since remained a part of the Ohio statutory law. Ohio Gen. Code, §218 (1921). In the note appended to the report of the Boone Case in 39 L. R. A. (N. S.) 1015, it is stated: “No case has been found which sustains the position taken in State v. Boone.” We think the law was properly indicated in that case in the following statement from the dissenting opinion of Spear, J.:
“The general assembly has power to require physicians to certify to the proper board such information respecting births and deaths as, speaking in general terms, will naturally come within the knowledge or observation of an attending physician. This upon the ground that the physician is licensed by the State. * * # This requirement is, therefore, not unreasonable, and it is hornbook knowledge that where special privileges are accorded by the State special duties in connection therewith may be exacted without awarding money compensation therefor.”
The practice of medicine is subject to regulation under the police power of the State, Locke v. Ionia Circuit Judge, 184 Mich. 535; People v. Blair, 192 Mich. 183, and any reasonable condition or requirement may be imposed by the State upon those engaged in that profession. The validity of legislation of this type is supported, not only by a recent decision of this court, but by an abundance of authority from other jurisdictions. People v. Wohlford, 226 Mich. 166; Commonwealth v. McConnell, 116 Ky. 358 (76 S. W. 41, 25 Ky. L. Rep. 552); State v. Wordin, 56 Conn. 216 (14 Atl. 801); Robinson v. Hamilton, 60 Iowa, 134 (14 N. W. 202, 46 Am. Rep. 63); Smythe v. State, 124 Miss. 454 (86 South. 870); Bozicevich v. Kenilworth Merc. Co., 58 Utah, 458 (199 Pac. 406, 17 A. L. R. 346); Brown v. State, 137 Wis. 543 (119 N. W. 338); State v. Madden, 81 Mo. 421; Presby v. Klickitat County, 5 Wash. 329 (31 Pac. 876).
In Brown v. State, supra, the court did not pass upon the constitutionality of the act; but a similar statute is still in force in that State (Wis. Stat. 1927, § 69.26), and it requires the filing of the report within five days after the birth.
The record in People v. Wohlford, supra, presents the same contention as is here urged, that, by the terms of the statute, the element of intent is not essential to constitute a violation thereof, thus making it possible to inadvertently commit the offense; and also that the penalty, under the circumstances, is cruel and unusual. Neither of these phases of the Wohlford Case were discussed at length in the opinion, but Justice Sharpe, writing for the court, said:
“This disposes of the question discussed by counsel in their briefs. We have, however, considered the other reasons assigned for arresting judgment and find them to be without merit.”
With equal propriety it might be said of these questions in the instant case that they are “without merit.” That an enactment which is in the exercise 'of the police power of the State does not need to embody the element of intent in creating an offense incident to its violation is well settled. People v. Roby, 52 Mich. 577 (50 Am. Rep. 270); People v. Sybisloo, 216 Mich. 1 (19 A. L. R. 133). And the argument that the punishment provided is “cruel and unusual” can hardly be reconciled with the statute which fixes a minimum fine of $5 for the first offense and a fine of not less than $25 nor more than $100 or imprisonment in the county jail not to exceed 60 days, or both, for each subsequent offense.
Defendant’s contention that the act embodies an unwarranted delegation of legislative power to the department of health is based upon the assumption that the commissioner of health is vested with unlimited powers in determining what information may be required to be included in the reports. This clearly is not a correct construction of the act, which provides that the rules and regulations of the department cannot be inconsistent with the provisions of the act itself, and that the department’s blanks on which the information is furnished shall conform to the “standardized form as nearly as possible.”
Further, by the terms of the act, its penal clause is made applicable only to those who violate its express provisions “or any rule or regulation lawfully established by the State commissioner of health,” etc. The lawfulness and reasonableness of the rules and regulations of the department of health are subject to review by the courts. Rock v. Carney, 216 Mich. 280 (22 A. L. R. 1178). No claim is made that the information which defendant was required to furnish in the instant case was not germane to the purposes of the statute. Should the department attempt to compel a physician to furnish information which was not contemplated by legislative act it would be powerless to do so; but such an attempt would in no way affect the validity of the statute. The act is not an unwarranted attempt to delegate to the State board of health legislative power in violation of article 5 of Michigan’s Constitution. Hurst v. Warner, 102 Mich. 238 (26 L. R. A. 484, 47 Am. St. Rep. 525).
The judgment of the circuit court is affirmed, with direction to proceed to its enforcement.
Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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Potter, J.
Plaintiff traded her summer cottage on one of Oakland county’s lakes for an equity in a rooming house on Avery avenue in Detroit. She filed a bill against defendants for rescission on the . ground of fraud, of which there was ample evidence. The trial court refused rescission, but rendered a joint and several decree for $10,000 against all of the defendants, and decreed the cancellation of a hoot-money note of $450 and a real estate commission note to defendants Kunkle and Chase of $500. Defendant Kunkle appeals.
After the transaction sought to he rescinded, plaintiff defaulted in the payment of the instalments due on the contract of purchase of the Avery avenue property and her equity therein was forfeited. Having permitted forfeiture of the equity in the Avery avenue property conveyed to her in consideration of her deed to defendants of the Oakland county property, and her $450 note, plaintiff cannot restore what she received from defendants, and therefore is not in a position to rescind. Merrill v. Wilson, 66 Mich. 232; Galvin v. O’Brien, 96 Mich. 483; Vernon v. Antona, 222 Mich. 83; May v. Otto, 236 Mich. 540; Papciak v. Morawski, 243 Mich. 157.
Rescission will he denied. Plaintiff’s damages are recoverable at law. The decree will he reversed, with costs, and the cause remanded, with directions to transfer the same to the law side of the court for further proceedings.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Sharpe, J.
In an action brought by plaintiff before a justice of the peace in the county of Saginaw against Philemon Clement, a judgment was entered for the defendant on June 28, 1928. On July 3d, plaintiff’s attorney filed notice of his appearance with the county clerk and served on Riley L. Crane, wlio had appeared as attorney for the defendant in justice’s court, the following notice:
“Kindly take notice that I have been retained as attorney for the plaintiff in the above cause and have filed my appearance accordingly.”
The return of the justice was not filed until July 5th. On July 12th Mr. Crane moved to dismiss the appeal for the reason that no notice of appeal had been given, as required by Circuit Court Rule No. 11. This rule as amended reads as follows:
“In cases of appeal from a circuit court commissioner or the justice’s court, the party appealing shall serve notice of the appeal upon counsel for the opposite party in the court below, if the opposite party had counsel in the court below, or if not, then such notice shall he served upon the opposite party personally or by mail in the manner provided for service upon attorneys by mail, within five days after the return on appeal is filed in the office of the county clerk.”
The language is plain and easily understood. The provision therein for notice is mandatory. Shrager v. Rich, 242 Mich. 419. The filing of the return gives the court jurisdiction over the subject-matter in dispute, but until such notice is given the circuit court acquires no jurisdiction over the appellee. Hosey v. Ionia Circuit Judge, 120 Mich. 280.
In Brockway v. Kent Circuit Judge, 246 Mich. 490, the appellant served notice of retainer and also a copy of a demand for a jury, and a request that the case should he placed on the call of cases for the succeeding term, which had been filed with the clerk. The circuit court file number appeared on all of these papers. It was there said:'
‘‘ The rule does not prescribe form of notice. Substantial compliance is sufficient.”
And it was held that the papers served gave notice that the cause was in the circuit court.
The return of the justice on appeal in this case was not filed until July 5th. At the time of the service of the notice of retainer (July 3d), there was no such case pending in the circuit court. The purpose of the rule is to inform the appellee that the return on appeal has been filed with the county clerk. We cannot say that the notice of retainer, thus prematurely served, was a substantial compliance therewith.
The trial court entered an order dismissing the appeal. The writ of mandamus to require him to set aside such order is denied, with costs to appellee.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Fead, J.
Defendant was convicted of murder in the first degree for shooting and killing Anthony Wasielewski on March 28,1927, sentenced to life imprisonment, and brings error.
Defendant was 27 years of age and was born in Detroit. His sister Anna was married to Charles "Wasielewski, brother of Anthony. About midnight the four returned from a neighbor’s house to the home of Charles and Anna. Defendant had been drinking. He went to bed. A controversy arose between him and Charles, in the course of which Charles ordered defendant out of the house. Charles and Anna testified that this order came because defendant was swearing profusely in the presence of the children, and that Charles threatened to take defendant out and give him a beating if he did not stop swearing. Defendant said he was ordered out because Charles said he did not like him, and that Charles threatened to give him the beating of his life, calling on Anthony to be referee. Anna handed Charles the baby to prevent his fighting, and Charles handed it back. Defendant got up and dressed. He had a revolver in his coat pocket. Deceased stood nearby, with both hands in his hip pockets, and, according to the testimony of Charles and Anna, told and retold defendant that he could not “pack” the gun out of the house. Defendant testified decedent said to him, “You ain’t packing out of this house tonight,” and, although defendant told him he had been ordered out, deceased repeated the assertion, moved closer, and finally came within two or three feet of defendant. Defendant told decedent not to come closer or he would shoot. Decedent whipped his right hand from his hip pocket, wheeled around, said “Shoot,” or “Go ahead and shoot,” or something similar, and defendant shot him, the bullet striking deceased in the leg, severing a large artery, and causing his death. Defendant said that as deceased whipped out his right hand, he, defendant, stepped back and the gun exploded; that he was trembling and nervous. He did not testify that he had shot in self-defense, nor that he deemed it necessary to shoot in order to protect his life or body. There was no evidence that deceased was armed, or that defendant thought he was. There had been no prior trouble between them. Anna testified that when they came back to her home she told defendant that decedent had said that, “If he gets my brother,” he would kill defendant. Defendant said she told him to look out; “they will kill you.”
Defendant contends the verdict was against the great weight of the evidence, and there was no testimony to sustain malice or premeditation to constitute murder in the first degree. The testimony of Charles and Anna strongly indicated that defendant was in an ugly frame of mind, and that deceased intended no more than to prevent defendant from taking the revolver with him for possible use in a fight with Charles, not to assault him. In view of defendant’s failure to claim that he had been in fear of his life or body, or that he shot in self-defense, the testimony was subject to a fair conclusion that there was no justification for the shooting. A deliberate and unjustifiable use of a deadly weapon implies malice. Defendant had warned deceased to keep away from him or he would shoot. He had ample time to form the intent to kill or seriously injure deceased. It was for the jury to say whether there was justification for the shooting and the intent with which it was done.
Bead as a whole, the charge of the court was fair, correctly stated the law, and amply protected the rights of defendant. Defendant’s counsel presented no requests to charge, but his present attorneys now take exception to certain isolated portions of the instructions. Error was alleged upon that portion reading:
“If the respondent had, previous to the killing of Anthony Wasielewski, determined to kill him or to inflict upon him some great bodily harm less than the crime of murder, which might reasonably have been expected, from the nature of the iveapon and the manner of its use, to involve serious consequences to the life of Anthony Wasielewski, and, to carry out such intention, wilfully and deliberately killed him, he would be guilty of murder in the first degree.”
Counsel contend that the italicized words limited the jury in determining guilt by excluding consideration of surrounding circumstances. If limited in their scope, the words merely restricted determination of the character of the injury defendant intended to inflict, if he did not intend to kill, to consideration of the nature of the weapon and the manner of its use. They had no reference to malice, premeditation, or justification, the elements of which, with full discussion of intent, were elsewhere set out at length in the charge. Nor can we imagine that a jury would understand that the manner of use of a weapon did not include all the circumstances surrounding its use and all the evidence bearing thereon, or that guilt was not to be determined from the whole testimony.
Defendant claims that the following instructions set up contradictory charges on self-defense and confused the jury:
“If he himself (defendant) was the aggressor in the conflict he cannot invoke the doctrine of self-defense as an excuse for the killing, unless he was, at that time, in immediate danger of losing his own life or suffering some grievous bodily injury and there was no retreat open for him and his only safety lay in shooting Anthony Wasielewski. Self-defense in proper cases is the right of every person but it will not justify the taking of a human life, unless the jurors shall be satisfied from the testimony: First, that the defendant was not the aggressor, in bringing on the difficulty, that is, that he was without fault; second, that there existed, at the time of the shooting, in his mind a present and impending necessity to shoot in order to save himself from death or some great bodily harm; third, that there must have been no way open whereby he could have retreated as it appeared to him at the time of the shooting to a place of safety and thus avoided the conflict. Unless, you find that all three of these facts are established in this case, then the plea of self-defense fails.”
The court thus presented two rules of self-defense, one for use in case the defendant was the aggressor, and the other in case he was not. They were not contradictory.. The court later defined “aggressor” as follows:
“An aggressor is not necessarily a person who may strike the first blow in a personal encounter or make the first demonstration indicating an intent to strike; but if a person with malice and hatred in his heart towards such a person seeks to provoke a difficulty either by acts or words, with the intent to induce such other person to strike the first blow or make the demonstration, in order to form a pretext to take his life, then the defendant could not avail himself of the right of self-defense.”
In view of this definition, the first instruction on self-defense was more favorable to the defendant than he was entitled to. 30 C. J. p. 47.
Counsel conceded that the second instruction was correct in making the test of self-defense a matter of necessity existing in the mind of defendant. If a more specific instruction had been desired, it should have been requested.
Defendant contends, also, that the instruction threw the burden of proof of self-defense on him. It may bear that construction. But immediately following the quoted language, and in the same paragraph, the court further said:
“The burden of proof of all such matters is upon the people to show that the respondent is guilty of the offense charged and the people’s testimony must be such as to satisfy the jurors that the killing was not done in self-defense. The burden is not on the defendant who makes the defense of self-defense to satisfy the jury of the truth of his claim.”
The court also later covered the subject by general instructions, so that the jury could not have been misled as to the burden of proof of self-defense.
The court urged the jury to carefully scrutinize the claim of self-defense; on the one hand, that defendant should not be punished if he so acted, and, on the other hand, that the plea be not made a means to defeat the ends of justice if it were unfounded. The instruction did not belittle the theory of counsel,' nor imply that the plea was not made in good faith.
Error is also assigned upon cross-examination of defendant by the prosecuting attorney in connection with his having been a witness in a prior murder case and also having been arrested in Chicago, where he went after shooting deceased. The court admitted the testimony as bearing upon the credibility of defendant. The examination was not unduly extended, and there was no abuse of discretion.
"We find no error in the record, and conviction is affirmed.
North, C. J., and Fellows, Wiest, Clark, McDonald, and Sharpe, J., concurred. Potter, J., did not sit. | [
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] |
Potter, J.
Plaintiff is the general distributor for western Michigan for the Radio Corporation of America. Defendant Henry Y. Filkins was appointed local dealer in Grand Rapids of the products of the Radio Corporation of America by it. He did business under the name of the Radiola Sales & Service Company, filed his certificate at the county clerk’s office under the statute governing doing business under an assumed name, and plaintiff was so advised. It sold and delivered to the Radiola Sales & Service Company merchandise from time to time, and this suit is brought to recover a balance due for goods sold and delivered by plaintiff to the Radiola Sales & Service Company. Before this suit was tried, defendant Filkins was adjudged bankrupt, and there was judgment for defendant Stiles. Plaintiff brings error, claiming Stiles is estopped from denying he was a partner with Filkins; that under the uniform partnership act (Act No. 72, Pub. Acts 1917, Comp. Laws Supp. 1922, § 7965 [1] et seq.), Stiles is liable in damages; that appellant’s proposed findings of fact are sustained by the .evidence; and that the acceptance by plaintiff of renewals of notes and trade acceptances without Stiles’ signature, on which original notes and trade acceptances Stiles was liable, did not release defendant Stiles from liability.
Defendant Stiles had been engaged in other business in the city of Grand Rapids. In 1926 his time was not all taken in his own business. He was interested in radio development and its possibilities, and subsequently acquired a broadcasting station. He was a friend of the defendant Filkins and frequently about his place of business. He loaned Filkins substantial sums of money and took his notes therefor. When around the office he answered telephone calls, prepared advertisements for the Grand Rapids papers, and in some cases these advertisements were published over the name of Radiola Sales & Service Company and indicated both Filkins and Stiles as proprietors. A contract for advertising with one of the Grand Rapids papers was signed hy the Radiola Sales & Service Company by W. B. Stiles. About the time Stiles advanced money to Filkins there was a meeting with plaintiff, and Mr. Litscher suggested that Stiles enter into a partnership with Filkins. He told Litscher there would be no partnership. No billheads, no stationery, no change in the bank account, and no sign indicated Stiles was a partner. In 1927 there was a meeting in which Litscher, Mr. Rutherford, one of the officers and directors of the company, Stiles, Filkins, and Leighton Leigh were present. A power of attorney was made and executed by Filkins to Stiles and Leighton Leigh, both and either and the survivor, giving them authority to receive and disburse funds, sign, indorse, and cash checks, and to act for Filkins in all business pertaining to finances of the Radiola Sales & Service Company until such time as its obligations to the C. J. Litscher Electric Company had been fully paid. This power of attorney was signed by Litscher and Mr. Burlingame as witnesses and acknowledged on April 29, 1927. When defendant Filkins entered into a.contract with the Radio Corporation of America to become a local dealer in Grand Rapids, plaintiff was advised, and it never was advised by the Radio Corporation of America there was any change in its dealer in Grand Rapids or that any other person than Filkins constituted the Radio Sales & Service Company.
The testimony of the defendant Stiles is that he gave the newspapers no authority to affix his name to the advertisements of the Radiola.Sales & Service Company as one of the proprietors. Under such circumstances, the fact such advertisements were published is not sufficient to bind him as a partner. Munton v. Rutherford, 121 Mich. 418. Plaintiff pre sented to defendant Filkins a bill for goods sold and delivered amounting to $2,494.11, and, under date of January 17,1927, a draft was made by plaintiff upon the Radiola Sales & Service Company, and this was accepted by the Radiola Sales & Service Company by Walter B. Stiles and H. V. Filkins. It is claimed that, having signed this trade acceptance, defendant Stiles is bound thereon, and the trial court was in error in refusing to so hold.
The language and reasoning in Childs v. Pellett, 102 Mich. 558, warranted the statement in Citizens’ Commercial, etc., Bank v. Platt, 135 Mich. 267, that “The receipt and acceptance of each renewal note and the surrender of the former note constituted a payment of the former.’' But in Molsons Bank v. Berman, 224 Mich. 606 (35 A. L. R. 1289), the decisions were reviewed and the rule of Childs v. Pellett and Citizens’ Commercial, etc., Bank v. Platt limited to cases where the question was whether the non-renewing maker or indorser was released from liability by his failure to sign the renewal obligation. This was the case here. Plaintiff Litscher accepted a renewal of this trade acceptance without defendant Stiles’ signature. Under the facts, we think there was no error on the part of the trial court justifying a reversal of the judgment, which is affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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North, C. J.
The plaintiff, Mary E. Heinig, was formerly Mary E. Edwards. The defendant Frances Mae. Crosier is the daughter of plaintiff and her former husband, John Edwards, who died May 26, 1926. Mr. and Mrs. Edwards had lived on a 40-acre farm in Lapeer county for upwards of 30 years. The daughter had lived at home until she was past 20 years of age, when she was married and moved to Canada, where she has resided for 12 or 13 years with her husband. It is the plaintiff’s claim that she was physically and to some extent mentally incapacitated following the death of her husband, and notwithstanding this that she was immediately importuned by her daughter to have the title to the homestead changed to one of joint tenancy between them. About six weeks after the death of Mr. Edwards, the plaintiff conveyed the property to the defendant Alice Lutz, who in turn conveyed it to plaintiff and her daughter, this being done for the purpose of establishing a joint tenancy in the property. Alice Lutz was made a party for the sole reason that the title was conveyed through her. She has filed a disclaimer and is therefore only a nominal party. Plaintiff seeks the cancellation of the two deeds above mentioned on the ground of failure of consideration, and asks that she be decreed to be the sole owner of the property.
It is the claim of the plaintiff that, as an inducement to convey an interest in this property her daughter represented to her and promised her that she should have a home with the daughter during the remainder of the mother’s life, and that she should be properly eared for as a member of the family, and that no other actual consideration passed for the deed. It is asserted by the plaintiff that instead of carrying out the arrangement between them, the daughter began a course of cruel and inhuman treatment immediately following the execution of the deed, which resulted in the plaintiff being able to remain in the home of her daughter in Canada, where she had gone to reside, for a period of only two or three weeks. Plaintiff thereupon returned to the vicinity of her former home, and did not receive any care or attention from her daughter prior to the filing of this bill of complaint in February, 1928, notwithstanding the mother’s condition was such during a portion of the intervening timé that she had need of care and attention as well as financial assistance.
On the 13th day of November, 1927, plaintiff was married to Mr. Heinig, and they went to reside on the Edwards farm. About a week later the daughter arrived, and plaintiff claims she and her husband were ordered by the defendant to vacate the premises. The daughter admits she made a- rather hurried visit to the old home, but she denies she ordered her mother out, and explains her rather unusual conduct by claiming she was much surprised and grieved by her mother’s marriage. Notwithstanding this claim on the part of the defendant, there is quite conclusive proof that soon after her father’s death she suggested and urged the remar riage of her mother. The finding of the circuit judge contains the following:
“The question here is: (1) The real consideration for the making of these deeds. (2) Has defendant failed on her part to such an extent that equity ought to interfere to return to the plaintiff this land, the sole ownership of which would have remained in plaintiff had not these deeds in question been made.
“Taking up these elements in their order:
“(1) The proofs are convincing that the controlling motive behind plaintiff’s consent to deed, brought about, no doubt, by defendant’s insistence, was the prospect- of congenial relations, kindnqss, care, and a home with the daughter when needed,' coupled with the prospect that the daughter’s husband would assist in improving the premises conveyed. * * *
“This was not a proposition made by plaintiff, and neither is the interest in the land acquired by defendant a gift.
“(2) Plaintiff was directly promised and expected future kind treatment not only from the daughter but the son-in-law as well. It is of the daughter’s conduct in particular the plaintiff complains.
‘ ‘ There is an abundance of proof that the attitude of the daughter was changed as soon as she had the deeds safely of record in the office of the register of deeds. That same evening her mother was informed rather formally that she (the defendant) ‘had her where she wanted her, and now you can neither sell nor mortgage that land.’
‘ ‘ The conduct of the daughter towards the mother at the daughter’s home in Canada was not in keeping with what the mother expected, or was promised.
* * * The daughter offered her mother no aid nor comfort when she was sick or lame and in the face of the neighbor’s testimony, and that of the physician, the defendant still maintains her mother was not sick nor in need of care after Mr. Edwards ’ death. Finally the daughter ‘took the bits in her teeth’ and ordered her mother to pack up her effects and to leave the farm for Lansing. * * *
“This property belonged to the plaintiff. She had worked 33 years helping to accumulate it. The daughter acquired the interest she has of record by making promises. These promises have not been fulfilled.”
A decree was granted by the circuit judge whereby the deeds in question were canceled, and a consideration of this record satisfies us that he was fully justified in so doing. The decree taken in the circuit is affirmed, with costs to the appellee.
Fead, Fellows, "Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fead, J.
This case involves construction of an oil and gas lease, and marks the introduction into this court of what, from the experience in other States, bids fair to be a prolific and not entirely happy subject of legal inquiry.
The lease was for one year from December 17, 1927. It granted, demised, leased, and let certain premises to plaintiff for the purpose of mining and operating for oil and gas, laying pipe lines, and building tanks, towers, stations, and structures thereon to produce, save, and take care of the products. Plaintiff began no operations on the premises until December 15, 1928. The question is whether, having commenced operations within the year, plaintiff had the right to complete the well after the end of the year.
The issue rests upon the construction, and reconcilement or dominance, of the term and development clauses of the lease. The instrument was on printed form and was originally filled in as a five-year lease, but on defendant’s request it was changed to one year. To indicate the changes we insert the figure “5” where that number appeared in the original draft. With these insertions, the term clause reads:
“It is agreed that this lease shall remain in force for a term of one (5) year from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.”
The pertinent part of the development clause is:
“4th. There is expressly granted to the said lessee the right at any time before one year after this date to begin operations for drilling a well for oil or gas on said premises, and also the right to extensions of time in which to begin such operations for successive periods of twelve months from and after December, 1928, on condition that the said lessee shall on or before the first day of each such respective twelve months’ period, pay to the lessor or deposit to her credit in the Union National Bank of Muskegon, Michigan (which shall continue as the depository regardless of changes in the ownership of said land) the sum of one dollar ($1.00) per acre, provided that if such payment shall not be made within ten days after the first day of each such respective twelve months’ period, then and on such default this lease shall wholly determine; and provided further that these successive periods in which the right may be acquired to begin the operation of drilling a well in search for oil or gas shall not exceed in the aggregate one (5) year from this date, and if such operations shall not be begun on or before the expiration of said one (5) year from December 17, 1927, and continue with due diligence to a reasonable determination of the presence of oil or gas in paying quantities, then this lease shall wholly determine.”
The form of lease is known as “Producers 88.” Producers Oil Company forms are so well known and commonly used that some of them are shown in the textbooks. Summers, Oil and Gas (1927), p. 751; Mills & Willingham, Law of Oil and Gas (1926), pp. 601,.604. As demonstrated by these authorities and Thornton’s Law of Oil and Gas (1925) (4th Ed.), the lease forms in common use are more the result of evolution than of initial drafting. In the early days many leases were for long terms, on nominal consideration, contained no requirement of development and followed the forms of real estate or mining leases. Probably the first important general change came because the courts read into the leases an implied covenant to develop within a reasonable time. Summers, Oil and Gas (1927), p. 398; Mills & Willingham, Law of Oil and Gas (1926), pp. 151,152. This led to designation in the leases of specific time to develop. As other controversies arose and came before the courts, the lease forms changed from time to time to meet the decisions. The evolution is entertainingly and instructively set out in the above textbooks. It is sufficient for our purpose to appreciate the fact of such evolution, and that the lease at bar is not an isolated or private agreement, drafted by uninformed neighbors to roughly express their understanding, but is a technical contract, reflecting the development and present status of the law of oil and gas, as far as it may be said to have a status in view of the bewildering conflict in reasoning and ruling. The lease should be read not only according to its words, but in connection with the purpose of its clauses.
No other lease just like this one seems to have been construed by the courts. Upon other forms, Perkins v. Sanders, 109 Kan. 372 (198 Pac. 954), and Cooke v. Gulf Refining Co., 127 La. 591 (53 South. 874), sustain defendant’s contention that the term clause dominates the time, and that the expiration date therein stated is not extended by a development clause which permits commencement of a well at any time within the fixed term. On the other hand, a majority of the court, in a case closely in point, Lester v. Mid-South Oil Co., 296 Fed. (C. C. A.) 661, has held to the contrary. The latter case involved a Kentucky lease for five years, which provided for rentals for deferring commencement of operations for successive periods during the term. The court held the term and development clauses inconsistent, and that the latter modified the former, so that a well commenced on the last day of the fixed term could be completed after its expiration. In reaching its conclusion, the court pointed out that the development clause was entitled to “additional consideration” because it was later in the instrument than the term clause. This reasoning is in conflict with the decisions of this court, which give preeminence to the first of repugnant clauses. Putnam v. Railroad Co., 174 Mich. 246; Mullreed v. Thumb, 116 Mich. 440; 35 C. J. p. 1179.
By the great weight of authority, the term clause, which is the habendum clause, dominates the period for which the lease shall run, so that, unless it is properly modified by other provisions, all rights of the lessee cease at the expiration of the fixed time stated in the term clause, except in the one contingency that at the expiration of such time the lessee is actually producing oil and gas on the premises. A late start or miscalculation of difficulties or time does not excuse failure to produce. If allowance be made for different conceptions of “production, ’ ’ the rule seems to be sustained by practically unanimous judicial opinion. Summers, Oil and Gas (1927), pp. 292, 294; Mills & Willingham, Law of Oil and Gas (1926), p. 118; Thornton’s Law of Oil and Gas, § 142; Guffey v. Smith, 237 U. S. 101 (35 Sup. Ct. 526); Union Gas & Oil Co. v. Adkins, 278 Fed. (C. C. A.) 854; Brown v. Fowler, 65 Ohio St. 507 (63 N. E. 76). At the expiration.of the fixed time, if there is no production to extend it, the lease ends, not by forfeiture but by its own terms. This distinction has sometimes been lost sight of by courts, with the result of unnecessary conflict. The unanimity of opinion upon the effect of the term clause among courts which are hopelessly divided on nearly all other phases of the oil and gas law is a strong-inducement to sustain its dominating character, in the interest of certainty and uniformity of construction and security of rights.
The question is whether the development clause operates to modify the term clause so as to extend the fixed time without production of oil or gas. The primary purpose of the development clause was to escape the rule that drilling must begin within a reasonable time. There was no necessity for the specific grant to the lessee of the right to begin operations at any time within a year. It had that right by virtue of the original grant. The object was to abrogate the implied duty of development within a reasonable time by an express optional agreement for a definite time. Mills & Willingham, Law of Oil and Gas (1926), p. 153. It is not necessary to construe the clause as- extending the fixed term in order to effectuate such purpose.
The whole clause is listed in the lease as a covenant and agreement of the lessee. The controversial part, the provision for commencement within a year and diligent prosecution of operations to the ascertainment of oil or gas in paying quantities, is in the nature of a condition subsequent (Mills. & Willing- ham, Law of Oil and Gas [1926], pp. 125, 126; Brown v. Fowler, supra), for breach of which forfeiture may be had, the lease shall “wholly determine. ’ ’ It does not purport in words to modify the term clause. It purports merely to designate conditions under which the estate created by the granting clause and held under the habendum clause shall determine. To give it the effect of extending the fixed term would result in the anomaly of the transformation of a covenant by the lessee or condition subsequent upon breach of which an estate already granted may be determined into a grant of a larger estate. In view of the established rule that oil and gas leases are to be construed for the benefit of the lessor and against the lessee (Summers, Oil and Gas [1927], p. 372), of the ease with which, by a few apt words, an extension of the term could be provided, and of the criticism by the profession of some of the Producers forms because they do not cover the contingency of expiration of the lease while the well is being drilled (Mills & Willingham, Law of Oil and Gas [1926], p. 601), such conversion should not be lightly attempted. There is no impelling reason for it, as the textbooks contain a number of forms which plainly provide for extending the time for completion of wells beyond the fixed term and which are accessible to lessees. In fairness to lessors, extension provisions should be made plain.
It must be confessed that, on casual reading, the language of the last provision of the development clause seems to express an intention that the lessee could begin a well at any time within the year and complete it afterward'if it exercised due diligence. However, the actual intention cannot be determined from the language, as much of the clause is inappropriate. The form was not made consistent in filling the blanks. Thus, it provides for extensions of time to begin drilling after December, 1928, and yet it provides that the whole period to begin drilling shall not exceed one year from December 17, 1927; and, although such extensions are impossible, it provides rent of $1.00 per acre for them. Such provisions would have been appropriate in a longer lease. This leads to the speculation that in some leases the last provision may have a useful purpose in entire harmony with the term clause. Thus, in a long-term lease it may be used to require commencement and diligent prosecution at an intermediate period. There may be other proper uses which will be disclosed as what is now an infant industry in this State casts off its swaddling clothes. In any event, the most that can be said in favor of plaintiff’s contention is that the lease is ambiguous. Under the rule, the construction must be in favor of the lessor.
Our construction of the lease is that the term clause dominates the time during which the lessee may operate without production; that the fixed time therein stated is not to be extended by mere commencement of a well, nor by indirect, ambiguous, and negative language in the development clause; but it may, and must, if at all, be extended by direct and affirmative provision therefor. Upon our initiation into this subject of litigation we feel impelled to encourage clarity and certainty in the time provisions of oil and gas leases.
The decree will be reversed, and one entered for defendant on her cross-bill declaring that the lease expired December 18, 1928, with costs to defendant.
North, C. J., and Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
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Fellows, J.
Plaintiffs traded property in the city of Detroit with defendants for a farm in Livingston county. They filed a bill to rescind after the property transferred to defendants had been sold to parties who upon this record were good-faith purchasers. After a hearing the case was transferred to the law side, the court finding in the order that defendants were guilty of fraud. The propriety of making this order or of its contents is not questioned. The case was tried to a jury without any change of pleadings and upon the theory that a fraud was perpetrated on plaintiffs, the trial judge thus instructing the jury:
“There isn’t any claim of fraud or misrepresenting on the part of either Mudge or Moore as to the value of that farm so far as soil and that thing is concerned, but they claim that Moore and Mudge induced them to exchange their property for this farm upon the representation Mudge would furnish them $2,000 with which to go and do the farming; that that is the active fraud they are relying upon here and is the fraud they are seeking in this action to recover damages for.”
In this court it is urged that the agreement of Mudge to furnish plaintiffs money to go to farming with was not misrepresentation of existing facts, was promissory only, and did not constitute fraud, and Boston Piano & Music Co. v. Pontiac Clothing Co., 199 Mich. 141, is invoked. We have searched this record with care and we fail to find a single place where any such claim was ever intimated in the trial court; there is no assignment of error on the language found in the charge and above quoted; there was a motion for a directed verdict, but it was on entirely other grounds, which will be presently considered; there was no request to instruct the jury along the line of the rule laid down in'the cited case; and there was no objection to the voluminous testimony given on the subject. Under cases too numerous to cite, we may not reverse this case on this ground.
There was some personal property on the farm which went to plaintiffs in the deal. They testify that, upon failure of defendant Mudge to furnish money as agreed, they were obliged to sell the personal property in order to live. Defendants ’ counsel moved for a directed verdict on the ground that this placed plaintiffs in a position where they could not put defendants in statu quo. This motion was de nied, but the trial judge instructed the jury that plaintiffs must be charged with the value of the property so used. There is no assignment of error on this instruction. There was but little evidence of the value of the personal property in the case, defendants not availing themselves of the opportunity of showing its value. The record signally fails to show that its value was’ in any degree consequential when the entire amount of the deal is considered. The action of the trial judge was in accordance with the holdings of this court: Holmes v. Borowski, 233 Mich. 407; Stowe v. Mather, ante, 329; Zadel v. Simon, 221 Mich. 180, and authorities there cited. And the rule laid down in these cases and other similar cases is particularly applicable where the property used up is of inconsequential value.
Defendants’ counsel here urge that the trial court should have at least directed a verdict for Mrs. Mudge. It is doubtful if the record permits consideration of any separate rights of Mrs. Mudge, but resolving the doubt in defendants’ favor does not benefit her. She testified that her husband always took title in them both .as tenants by the entire-ties imhis real estate deals and that profits made in them were deposited in their joint names. In Zadel v. Simon, supra, the same question was before us, and we said:
“In the instant case all four defendants joined in the contract rescinded. Jointly they received and now hold $1,000 of plaintiff’s money procured, as the jury found, by fraud. We do not perceive any rule of law which would be violated by requiring them jointly to respond, nor do we perceive that the fact of coverture would permit a married woman to keep money thus fraudulently obtained.”
There was a motion for a new trial in which it was urged that the verdict was against the weight of the evidence and excessive. Upon the theory adopted by both parties in the court below as to what constituted fraud, the verdict was not against the overwhelming weight of the evidence or excessive in amount. Upon the question of whether the promise or misrepresentation, whichever it may be called, was made, the plaintiffs’ testimony strongly preponderated. Upon the question of plaintiffs’ property there were opinions of experienced real estate men justifying the verdict, and also justifying a verdict for a lesser amount. That sustaining the lower figures did not preponderate in a sufficient degree to justify this court as a reviewing court in setting aside the verdict of the jury as approved by the trial judge. Nor may this motion be made the vehicle of raising questions not raised on the trial. Tishhouse v. Schoenberg, 234 Mich. 271, and authorities there cited.
There are some other assignments of error, general in language, which do not require discussion. Upon the record before us, we cannot do otherwise than affirm the judgment.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This is a review by certiorari of an award of the department of labor and industry fixing the fees of defendant, Roberts, for attorney’s services in representing the plaintiff in prosecuting her claim for compensation against the defendants, General Motors Building Corporation and Royal Indemnity Company.
On September 22,1922, Edward Vellenoweth died in the city of Detroit as the result of injuries arising out of and in the course of his employment by the General Motors Building Corporation. He was survived by his widow, Thomasine Vellenoweth, the plaintiff in this case, who resided in Cornwall, England. She employed defendant Henry H. Roberts, a Detroit lawyer, to prosecute a claim for compensation. He performed this service, obtained an award for $3,060, out of which he retained $1,020 for his fees. Claiming that the fees charged were excessive, the plaintiff referred the matter to the British consul at Detroit, who filed a petition asking- that the attorney’s fees be fixed by the department of labor and industry. The deputy commissioner before whom the petition was heard determined that $125 was a reasonable fee for Mr. Roberts’ services, and directed that he return to the plaintiff $775 of the amount which he had retained. The determination of the commissioner was affirmed by the board, and is here reviewed on writ of certiorari.
It is first urged by the defendant that the department of labor and industry is without authority to fix his fees because there is no disagreement between the parties in relation thereto.
Before the claim for compensation was filed, Mr. Roberts wrote to Mrs. Vellenoweth offering his services as an attorney and suggesting that she appoint James H. Cullen of Detroit as her attorney in fact to represent her in this country. He inclosed a power of attorney and a claim for compensation, which he requested her to sign and return to him. As to compensation for his services, the letter contained the following statement:
“Our compensation in this matter will depend upon the amount of work done, of which we will keep a record, and will make as reasonable a charge against you for the services we perform as we possibly can under the circumstances.”
Mrs. Vellenoweth signed the papers, and by her attorneys in England mailed them to Mr. Roberts. In their letter to him they said:
“"We may say our client is exceedingly poor and should.you not be successful in the action she will not be able to pay your expenses. We are afraid therefore you must take same upon the understanding that you will hot be paid unless you are successful in the action.”
Upon receipt of this letter, Mr. Roberts entered upon the services for which the fees in question were charged. It is his claim that he was employed by Mr. Cullen, the attorney in fact, that Cullen agreed to pay him for his services one-third of the amount recovered, that he has been paid that amount, that Cullen is satisfied, that Mrs. Vellenoweth has nothing to say about it, and that therefore there is no disagreement as to fees. We do not agree with this contention. The compensation act undertakes to protect a claimant against excessive attorney’s fees by requiring their approval by the board in case of disagreement between the parties. Pearson v. Gillard, 231 Mich. 541.
On the question of the jurisdiction of the board, we regard it as wholly immaterial whether Mrs. Vellenoweth, who is the real party in interest, employed the attorney or did it through an agent. She disputes the fees, and has a right, under the statute, to have the whole matter passed on by the board. And this right is unaffected by the fact that the agent is satisfied with the fees charged. It is not his matter. We think there is no question as to the jurisdiction of the board to fix the fees in this proceeding.
But Mr. Roberts insists that in any event he is entitled to a fee amounting to one-third of the compensation recovered because that was the agreement with Mr. Cullen who had authority to make a binding agreement for Mrs. Vellenoweth.
Mr. Roberts was not employed by Cullen. He offered his services to Mrs. Vellenoweth by letter, in which he stated in substance that his charges would be on a quantum, meruit basis. She accepted his offer to look after her interest on condition that if he did not succeed in recovering compensation he should receive nothing for his services. It is true that Mr. Roberts did not answer this letter and in express language accept her counter proposal as to Ms fees. But on receipt of it, he at once filed her claim for compensation and .began to render the services in question. By thus going ahead with his employment, after receipt of her letter, he must be held to have done so under the conditions therein proposed, which were that he was to keep a record of his services, make his charges as reasonable as possible, and charge nothing if not successful in recovering compensation. What the agent assumed to do afterwards does not-matter. In view of this conclusion, the question before the board was what Mr. Roberts’ services were reasonably worth. Was there any evidence to support the finding that they were worth $125?
Mr. Roberts kept no record of the services rendered because he evidently expected to be paid on a contingent basis. His testimony as to the time spent was very indefinite, but he placed it at 100-hours. The board was not bound to accept his statement as to the number of hours he worked. The members of the board have had extensive experience in all matters pertaining to the prosecution of claims for compensation. In this instance they had before them the files and all of the proceedings in the original' case, they knew the number of witnesses sworn and the length of time taken on the hearing, and they knew the nature of the case, whether it was a troublesome, complicated issue or a simple matter easily and quickly determined. All of these matters they had a fight to consider in determining the reasonableness of the attorney’s fees charged. We cannot say that there was not evidence to support their finding.
Some other questions are argued by counsel in their briefs. We have considered them but tMnk they do not require discussion.
In the award there was evidently an error in subtracting the $125 fee allowed from the $1,020 retained by Mr. Roberts. The difference is $895 which represents the amount he is required to refund.
With this correction, the award is affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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North, C. J.
Wilbur Goeringer was engaged in the taxicab business in Detroit in 1922. Under the city ordinance he was required to secure and file a taxicab owner’s bond in the sum of $1,000 and a driver’s bond for $200. He obtained these bonds from the defendant corporation, which became surety thereon, the condition of the bonds being, in part, that any judgment arising out of damage or injury to any person or property caused by the negligent operation of Goeringer’s taxicab or by the negligence of Goeringer in operating a public vehicle should be paid. These bonds ran to the city of Detroit and were required by the ordinance as a condition precedent to issuing the annual taxicab and driver’s licenses.
On November 26, 1926, the plaintiff herein, as administrator of the estate of Elmer Flueling, deceased, who was killed by the negligent operation of a taxicab owned and operated by Goeringer, obtained a judgment for $4,500'. February 25, 1928, this suit was brought against the defendant herein as surety to enforce the payment of the judgment to the extent of the penal sum of the respective bonds. The case was heard by the court without a jury, and plaintiff had judgment for the full amount of the bonds, $1,200. The defendant has brought the case to this court by writ of error.
No exceptions were filed to the finding of facts and law, and the only question open for review on this record is whether the facts found by the trial court are sufficient to support the judgment entered. The first assignment of error raises this question. The specific claim made by appellant is that the bonds having been given in connection with the licenses held by G-oeringer for the calendar year 1922, the liability of the surety was limited to that year; and since there is no finding of fact that the accident which resulted in the death of the plaintiff’s decedent happened in 1922 the findings are not sufficient to support the judgment.
The original case was reviewed in this court, Flueling v. Goeringer, 240 Mich. 372. On the trial of the instant case, the record in the former case in the Supreme Court was offered and received in evidence. From that record it appears that the accident which resulted in Elmer Flueling’s death occurred May 8, 1922. This was within the period covered by the bonds; and it is obvious that the alleged error now relied upon by the appellant is of a technical character rather than one going to the merits of the case. The date of the accident was in no way controverted. To sustain appellant’s contention is merely to reverse the case and order a new trial because of the failure to cover in the findings an uncontroverted fact. This should not be done if a different disposition of the case is justified by the record.
An appellant will not be heard to complain that the trial judge omitted to make a special finding of facts when the evidence is such that no finding could have been, made which would have aided him. Slocomb v. Thatcher, 20 Mich. 52. Especially ought this rule of practice to be applicable to cases wherein, as in the instant case, no request is made by the complaining party for an additional or amended finding covering the particular fact. In this case, there is nothing in the finding of facts and law made by the trial court which is inconsistent with the judgment entered. So far as the record discloses, the omission to include this uncontroverted fact in the finding made was not called to the attention of the trial ¡judge in any way incident to the preparation of such finding. Had that been done, obviously an amended finding would have been made and filed. The specific question is presented for the first time in this court, and therefore, cannot be made the basis of a reversal. That the accident happened within the period covered by the bonds is established by the uncontradieted testimony. The record discloses no prejudicial error. 3 Comp. Laws 1915, § 14565. The judgment is affirmed, with costs to the appellee.
Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
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] |
Potter, J.
Plaintiff filed a bill of complaint against defendant for an accounting. There was decree for defendant and plaintiff appeals.
Plaintiff and her husband, Henry H. Stewart, and defendant and his wife, Evelyn, had, prior to 1915, lived in Indianapolis, Indiana, and were friends. Defendant moved to Jackson and was connected with the American Gear Company. ' Stewart and his wife moved to Detroit, where Stewart was a builder. The parties visited back and forth. The American Gear Company was acquired by the Hupp Motor Car Company, whose employ defendant entered, moving, with his family, to Detroit. Stewart and George Veness were partners in the building business. Stewart had an equity in’real estate both on Prentis avenue and on- Webb avenue. Veness had an equity in real estate on Selden avenue.
Defendant had considerable money, and intimated to Stewart he would like to be associated with Stewart and Veness. 'This was agreeable to them, and the Apartment Construction Company was incorporated, and 210 shares of common stock issued and held as follows: DuBois Young, 1 share; Evelyn Young, 69 shares; Henry H. Stewart, 1 share; Pern C. Stewart, 69 shares; George G. Veness, 1 share; Jennie L. Veness, 69 shares. The assets of the corporation were listed at $15,000. Defendant furnished $5,000. A deed to the Prentis avenue real estate was secured subject to a mortgage of $1,700. The balance of $15,000 above Stewart’s equity and the $5,000 was represented by the estimated increase in value of the real estate. Stewart estimated the cost of the apartment building to be erected thereon at $80,000. A mortgage of $55,000 thereon was secured from the Strauss Investment Company. Defendant was elected president. Stewart was made superintendent and foreman of construction, and Yeness was bookkeeper and fiscal agent. Defendant was to furnish the balance of the money above the $55,000 from the Strauss Investment Company, and be secured by a second mortgage on the land and building when it was completed.
Stewart and wife and Yeness and wife organized the Y. & S. Construction Company, a corporation, which issued 200 shares of common stock, of which Henry H. Stewart held 1 share, Fern C. Stewart 99 shares, Geo. G. Yeness 1 share, and Jennie L. Yeness 99 shares; and it undertook the construction of a four-family flat on the Webb avenue property of Stewart.
In the summer of 1916 defendant and his family made an automobile trip through the west, returning to Detroit in September. Defendant soon heard the Apartment Construction Company was not paying its bills promptly, and after making some investigation expressed himself as satisfied with what Stewart had done, but he blamed Yeness as inefficient and dishonest. A corporate meeting was called. Yeness admitted misappropriating the funds of the Apartment Construction Company. An audit of its books was ordered by defendant to be made by the Security Trust Company, and the audit corroborated defendant’s estimate of Yeness.
Yeness and wife and Stewart and wife assigned to defendant all of their stock in the Y. & S. Construction Company and the Apartment Construction Company. Stewart and wife deeded to defend ant all their interest in the Prentis avenue real estate and the Wehb avenue real estate. Yeness deeded to defendant his interest in the Selden avenue real estate. Defendant also received a mortgage for $14,000 on the property of the Y. & S. Construction Company, and from Veness he received 1,000 shares of stock in a cement company, and Yeness and wife were eliminated from further interest in the business of either company or the property above mentioned.
Defendant and wife and Stewart and wife continued on friendly terms, visiting back and forth. Stewart remained superintendent of building operations on both jobs at $150 a month. The building of the V. & S. Construction Company on the Webb avenue property was completed in the fall of 1916, and the building of the Apartment Construction Company on Prentis avenue was completed in January, 1917.
It is plaintiff’s claim that defendant agreed with plaintiff that if Stewart would continue as superintendent of the construction and completion of these .buildings, defendant would furnish the money for their completion, the property would be sold by defendant, and the profits derived from the transactions divided equally between defendant and plaintiff. Real estate values in Detroit mounted with inflated'wartime prices and building costs more than kept pace. Defendant, to complete these buildings, had to invest more money than the original estimates. In 1920 the Prentis avenue property was sold for $150,000. Since that time the Webb avenue property has been sold. It is estimated that defendant’s profits were between $30,000 and $40,000 on these transactions. When plaintiff and her husband learned of the sale of the Prentis avenue prop erty, she requested defendant to account to them. He refused to do so, and the bill of complaint herein was filed May 23, 1921, and an injunction issued restraining defendant from disposing of any of the proceeds of said sale. The injunction was disregarded. An order of discovery was made May 23, 1921, requiring defendant to furnish a statement of the cost of constructing the Prentis avenue building. No such statement was furnished. June 23, 1927, a notice to produce the original of all correspondence had between the parties was filed. This notice was not complied with. The trial court found that plaintiff, by a preponderance of the evidence, proved the promise of defendant to complete the buildings, sell the property, and divide the profits equally with her, but held she was not entitled to relief because the contract was one concerning real estate not in writing and void under 3 Comp. Laws 1915, § 11975.
Plaintiff’s claim is not for an interest in real estate, but for an interest in the proceeds of the sale of real estate. The real estate was deeded to defendant and wife, and they had a right to sell it and convey title and defendant had a right to receive the pay therefor. It is plaintiff’s claim that when the real estate was so sold, and defendant had received the pay therefor, he was to account and pay over to her one-half the profits of the venture. No matter who held title to the real estate, it is not here involved, such title has been sold, defendant’s rights recognized, and the proceeds of the sale paid to him. Such proceeds are not real estate but personal property. The contract has been partially performed. It is not within the statute of frauds. When real estate in which several persons are interested is conveyed to one or more of them upon a parol agree ment that it is to be sold by the grantees and the proceeds divided between the parties in accordance with their respective interests therein, such contract after the sale of the property is valid and enforceable, is not within the statute of frauds, and, if the grantees after sale and receipt of the purchase price refuse to account to any and all persons in interest, they may maintain a bill for an accounting. Carr v. Leavitt, 54 Mich. 540; Edinger v. Heiser, 62 Mich. 598, 612; Davis v. Gerber, 69 Mich. 246; Collar v. Collar, 86 Mich. 507 (13 L. R. A. 621); Petrie v. Torrent, 88 Mich. 43; Lasley v. Delano, 139 Mich. 602; Tuttle v. Bristol, 142 Mich. 148; Mullholland v. Patch, 205 Mich. 490 (18 A. L. R. 468); Bresee v. Robinson, 236 Mich. 633. This is in accordance with the weight of authority. Browne, Statute of Frauds (5th Ed.), § 268, and cases cited; 29 Am. & Eng. Enc. Law (2d Ed.), 897; 27 C. J. p. 221.
“As a general rule a contract relating to the disposition of the proceeds of land, in case of its sale, is not one for an interest in-the land and may be enforced, though not in writing, after the land has been sold.” 25 B. C. L. p. 540.
The other questions discussed are all governed by the rule above. It follows that the decree should be reversed, with costs, and a decree entered remanding the case for an accounting in accordance herewith.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
Fead, J.
Defendant, a corporation, had directed verdict and judgment. The record is not at all satis factory, important exhibits having been omitted and many uncertainties appearing, but it bears the usual certificate of the court that it contains the substance of all the testimony, and, taking it as it is, it discloses the following evidence favorable to plaintiff:
The Super Motor Sales Company, a partnership, owed plaintiff over $600 for labor, paid him about one-half, and retained $332.99 to be applied later on purchase of a car by plaintiff. The partnership incorporated as defendant here and assumed the obligations of the firm, including the debt owing to plaintiff. Some time later defendant agreed to sell a car to plaintiff, crediting as cash payment on the contract $345, representing the debt owing plaintiff, with interest agreed upon. Defendant agreed to deliver the car, but refused to do so. No justification for the refusal appears in the record.
The court apparently assumed plaintiff’s theory to be that title to car had passed to him and directed verdict because there had been no rescission nor proof of damages pertinent to the theory. Plaintiff’s original declaration and bill of particulars afforded excuse for the evident assumption of the court. However, plaintiff had amended his original declaration by incorporating the common counts in assumpsit. No election was required of him, no statement of his theory appears in the record, and it does not disclose assertion or contention which would foreclose him from going to the jury upon any claim within the purview of his pleadings and evidence. His testimony covered no showing of damages other than the down payment, and he urges that he had the right to recover this amount under his pleadings.
By refusing to deliver the car as agreed defendant breached the contract of sale, and title did not pass to plaintiff. 3 Comp. Laws 1915, § 11850, rule 5.-Plaintiff then had the right to treat the contract as at an end and recover the down payment under the common counts. Beardslee v. Horton, 3 Mich. 560; Wood v. Kaufman, 135 Mich. 5; Harty v. Teagan, 150 Mich. 75; Kuchenmeister v. Dusza, 218 Mich. 497; 35 Cyc. p. 603; 41 C. J. pp. 29, 30.
Judgment will be reversed, and new trial ordered.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and' Sharpe, JJ., concurred. | [
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] |
Wiest, J.
This is an action to recover damages for breach of promise to marry. The promise is admitted, and the breach is claimed to have been justified by discovery of the manufacture, possession, and use of “ moonshine ’ ’ whisky by plaintiff. Plaintiff denied making the moonshine, but admitted the manufacture of “home brew,” and claimed defendant told her to make it for the wedding.
The court instructed the jury:
“In this case, in order for the defendant to not be held liable, it is necessary for him to show by the testimony which preponderates in his favor, that this woman did manufacture and have in her possession and used this illicit liquor as he claims, and that she refused to give it up, and that he refused to marry her on that account. ’ ’
The verdict was for defendant.
Counsel for plaintiff complains of the mentioned instruction, stating:
“It is counsel’s contention, that if plaintiff was engaged in a violation of the liquor law after the engagement of the parties, that this would not justify defendant in breaching his contract and escaping liability, but that it would only go in mitigation of damages or result in a postponement of the marriage until plaintiff would give up her occupation in manufacturing liquor. ’ ’
There is no merit in the contention. We approve of the instruction. It is a felony in this State to manufacture or possess intoxicating liquor, and a woman, guilty of such an offense, may not successfully contend that it is no justification for breaking a promise to marry her. If plaintiff manufactured intoxicating liquor during the engagement, and defendant asked her to desist and she refused and disclaimed intention of ceasing to do so in the future, then defendant would have been a dolt to marry her, and, as head of fhe household, render himself liable to prosecution as particeps criminis if she kept the practice up.
About five months .after the engagement was broken and while this suit was pending, plaintiff was convicted of a violation of the liquor law. The fact was brought out in the cross-examination of plaintiff and was proper as affecting the weight the jury would give to her testimony.
In the notice attached to the plea defendant stated that plaintiff consorted with men of questionable character after the engagement and refused to give up such associations. The charge was not supported by any evidence, and counsel for plaintiff alleges error because the court did not permit him to argue the allegation in aggravation of damages. One good reason for breaking the engagement was found by the jury, and that finding barred plaintiff from recovering damages.
We find no reversible error in refusing to permit counsel to employ the pleading for the purpose mentioned.
The record discloses no reversible error, and the judgment is affirmed, with costs to defendant.
North, C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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McDonald, J.
This is a review by certiorari of an order of the circuit court denying a motion to quash a writ of garnishment and to dismiss the principal suit for want of jurisdiction. The plaintiff is a corporation organized under the laws of Great Britain. It is not authorized to do business in this State and does no business here. The principal defendant, Phinney-Walker Company, Inc., is a New York, corporation. It is not authorized to do business in Michigan. The garnishee defendant, General Motors Corporation, is a Delaware corporation authorized to do business in this State. Its principal business office is in the city of Detroit, Wayne county. The principal defendant was indebted to the plaintiff for goods sold and delivered on a contract not to be performed in Michigan. The plaintiff brought action in Wayne county ¿nd gar nisheed the General Motors Corporation. The procedure prescribed in 3 Comp. Laws 1915, § 13150, was followed. The garnishee defendant disclosed an indebtedness to the principal defendant of $60,000 on a contract for the purchase of merchandise. This contract was made and was to be performed without the State of Michigan. The principal defendant appeared specially and moved to quash the writ and dismiss the principal action on jurisdictional grounds. This motion was denied, and the principal defendant has brought the case here for review.
The question is whether the circuit court has jurisdiction in garnishment proceedings where the plaintiff, a nonresident corporation, whose cause of action does not accrue within this State, sues another nonresident corporation and garnishees a corporation, also a nonresident but authorized to do business in this State, and who maintains a business office in Wayne county, where the suit was instituted.
By the great weight of judicial opinion, the jurisdictional test for garnishment is the suability of the garnishee defendant by the principal defendant in the jurisdiction where the garnishment is instituted. Harris v. Balk, 198 U. S. 215 (25 Sup. Ct. 625, 3 Ann. Cas. 1084); Bingenheimer Mercantile Co. v. Weber, 49 N. D. 312 (191 N. W. 620, 27 A. L. R. 1392), and cases cited in annotation in 27 A. L. R. p. 1396.
It is contended that the principal defendant cannot maintain a suit in Michigan against the garnishee defendant for its debt because both are nonresidents.
The, garnishee defendant is a foreign corporation, but, as we have said, it is authorized to do business in Michigan. It operates large automobile plants in this State and maintains a business office in the county where this suit was started. In becoming domesticated by complying with the statute regulating the transaction of business in this State by foreign corporations, it has acquired a local existence for business and jurisdictional purposes and may sue. and-be sued the same as domestic corporations or natural persons. Republic Motor Truck Co. v. Buda Co., 212 Mich. 55.
It follows that the principal defendant could maintain an action in Wayne county against the garnishee defendant for its debt and the court would have jurisdiction to enter a valid judgment. But the defendant contends that the court must also have jurisdiction of the parties to the principal action, and that there is no such jurisdiction in this case because neither the plaintiff nor the principal defendant is a resident and the cause of action did not accrue in Wayne county or the State of Michigan. In support of this contention, the defendant relies on 3 Comp. Laws 1915, § 12340, which in part reads as follows:
“In cases where the plaintiff is a resident of the State of Michigan, suits may be commenced in any county where the plaintiff resides, against any corporation not organized under the laws of this State; and where the plaintiff' is a nonresident of the State of Michigan, where the cause of action accrued within the State of Michigan, such plaintiff may bring action in the county where the cause of action accrued.
The defendant is correct in asserting that the garnishment proceedings cannot be maintained unless the court has jurisdiction of the parties to the principal suit, but notwithstanding the statute above quoted, it is not necessary to jurisdiction in garnishment cases that either of the parties in the original case be residents of this State or that the cause of action accrue here. In Newland v. Circuit Judge, 85 Mich. 151, both parties to the principal action were nonresidents of Michigan and the cause .of action accrued without the State. The court said:
“There is no valid reason why the courts of this State may not acquire jurisdiction over persons and choses in action, as well when both parties to the original action are nonresidents of the State, as where the plaintiff in the original suit is a resident of the State. The plaintiff, a nonresident, comes into the State, and submits himself to the jurisdiction. The statute points out the mode of procedure to acquire jurisdiction over the defendant in the principal suit; not for the purpose of rendering a personal judgment against the nonresident defendant, but to subject the choses in action in the hands of the third party to the payment of the plaintiff’s demand. To this extent the statute confers upon the court jurisdiction to proceed.”
The defendant has argued the situs of the debt as of controlling importance in this case. We have not discussed that question because, under the Michigan garnishment statute, jurisdiction does not depend on situs of the debt. The determining factor is whether the principal defendant can sue for the garnished debt in the jurisdiction where garnishment is brought. If he can do so, his creditor, regardless of residence, can- come into the same jurisdiction and subject the debt to the payment of his claim. That is the purpose of the statute under which these proceedings were brought.
The judgment of the trial court is affirmed. The plaintiff will have costs.
North, C; J., and Fead, Wiest, Clark, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
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Clark, J.
Plaintiff had a contract with defendant corporation by which he became for them a selling agent. Defendant terminated the contract. Plaintiff brought suit claiming damages, $45,000. He filed affidavit for writ of garnishment, stating his suit was a personal action arising upon express contract, and that defendant was indebted to him upon such contract in the said sum.
Plaintiff filed bill of particulars claiming damages on the contract of $3,230.37 and damages for breach of contract $41,769.63. A number of garnishee defendants were brought in and filed disclosures. Defendant moved to dismiss the garnishment proceedings on many grounds, among them that the amount claimed to be due as upon contract had been fully paid and that garnishment will not lie for. unliquidated damages arising upon breach of contract. The motion was denied. Defendant prosecutes re-, view on certiorari. Subsequently defendant gave bond duly approved to release garnishment as provided by statute, 3 Comp. Laws 1915, § 13165, quoting in part:
“The principal defendant in any such action, wherein process of garnishment shall have been issued, may at any time after service of such process, and previous to the rendering of judgment thereon, file with the clerk of the court his bond, with at least two sufficient sureties, to the plaintiff as obligee in a penal sum equal to double the amount of the claim of the plaintiff, as sworn to in the affidavit filed for the writ of garnishment, and with conditions to pay any judgment obtained against the defendant or defendants in such action, and abide the order of the court therein, and which bond and the sureties thereof shall be previously approved by the judge of the court or circuit court commissioner. * * * On filing such bond so approved, with the clerk of the court, the proceedings in garnishment shall be thereby discontinued, and the costs thereof shall abide the event of the principal suit; and if the plaintiff shall recover judgment against the principal defendant, on application to the court, execution thereon may be ordered to issue against the sureties in such bond, as well as the defendant. Whenever any proceedings in garnishment shall be discontinued, by reason of the filing of such bond, as above provided, the clerk of the court shall forthwith notify the attorney for the plaintiff in such suit, of the filing of such bond, and such attorney shall, within twenty-four hours after the receipt of such notice from the clerk, give notice in writing, to the persons against whom process of garnishment shall have been issued, that the proceedings in garnishment in such suit have been discontinued, which notice shall be served upon the attorney for the garnishee, if he shall have appeared by attorney, otherwise upon the garnishee, and may be served in the same manner as other notices are required to be served.”
The condition of the bond is that set forth in the statute. Thereupon plaintiff moved in this court to dismiss the writ of certiorari on the ground that the case here is moot.
Under the plain language of the statute, giving the bond worked a discontinuance of the garnishment proceedings. That being so, there is no occasion to review them on certiorari.
Writ dismissed, with costs to plaintiff.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
Separate bills were filed by the American Employers Insurance Company and the township of Brady, Saginaw county, Michigan, to impress a trust on certain funds belonging to the estate of James R. Sackett, deceased. The causes were heard together and will be disposed of in one opinion.
James R. Sackett owned and conducted a private bank in the village of Oakley, Brady township, Saginaw county. In April, 1924, he was elected treasurer of the township. The American Employers Insurance Company became surety on his bonds. As he received the tax money, he did not place it in a separate fund but deposited it with the general cash of the bank, which was augmented and depleted from time to time during the course of his general banking business. He collected county and State money to the amount of $12,784.40. In January, 1925, he paid the county $7,000, leaving $5,784.40 due and unpaid at the time of his death on February 2, 1925. His estate was insolvent. The surety company paid this balance, and by proper assignment became subrogated to the rights and interests of the county. In its suit, it seeks to recover the amount so paid on the theory that it is a trust fund in the hands of the administrator of the Sackett estate. On the same theory, the township seeks to recover a balance of $4,009.55 which it claims to be due for township taxes. On the hearing, the circuit judge found that the funds collected as taxes were charged with a trust but denied recovery on two grounds, first, because the funds could not be traced and identified, and, second, because the circuit court was without jurisdiction to determine the status of funds in the custody of the probate court. From the decree entered, the defendants have appealed.
There is no doubt that the public funds in the hands of the treasurer were impressed with a trust. The question is, Can the court find the funds so that the trust may be enforced against general creditors ? In Board of Water Com’rs v. Wilkinson, 119 Mich. 655 (44 L. R. A. 493), it was said:
“Having reached the conclusion that the funds of the board in the hands of its treasurer constituted a trust fund, it remains to ascertain whether it can be collected from the receivers. This involves questions of law as well as fact. The theory upon which property is taken from a receiver, and paid to a beneficiary, is that the court is able to find in the hands of the receiver property, or its proceeds, which was held by the. insolvent, not in his own absolute right, but charged with a trust. In such a case a court of equity will hold that it is not subject to the claims of other creditors. But when the fund received in trust has been dissipated, so that it cannot bé traced into some other specific property or fund, the only remedy of the beneficiary is to share equally with other creditors.”
Iir the instant case, Mr. Sackett did not place the tax money in a special fund to be drawn upon for the particular purpose to which it should have been devoted. He was under a legal obligation to keep it separate from other money in the bank. He did not do so, but mingled it with moneys received from other sources and used it in his general banking business. Whether it was entirely paid out in the course of business, we have no means of knowing. Certain it is that a large part of it had been thus used, for when the administrator took charge of the estate there was a balance in the general cash account of but $2,365.32, whereas, the amount of tax money which should have been on hand was $9,793.95. In the absence of any proof on the question, we have no right to assume that the balance in the general cash fund was trust money. If such balance had been maintained at an amount equal to or greater than the amount of the trust fund, there would arise a presumption that the trust money had been kept intact. This presumption would be justified on the theory that a man is presumed to have acted honestly and to have paid out the cash received from other sources rather than that which was committed to him in trust. Board of Water Com’rs, supra; Sherwood v. Savings Bank, 103 Mich. 109; Brady v. American National Bank, 120 Okla. 159 (250 Pac. 1006).
In the instant case there can be no such presumption, for the teller of the bank testified, in substance, that there was never any intention to keep the trust fund intact; that it was deposited with the general cash and used in the same way as money received from other sources. On this record, we cannot find the fund and therefore cannot enforce the trust against the general creditors.
No other question requires discussion. A decree will be entered in each case in accordance with this opinion. The defendants will have costs.
North, O. J., and Fead, Wiest, Clark, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
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Fead, J.
This is an action of ejectment, involving a boundary dispute. Defendants had verdict of a jury and judgment.
Plaintiffs purchased in 1922, defendants in 1914. Suit was commenced in 1927. Defendants ’ land adjoined plaintiffs’ on the north. Practically without dispute, the testimony was that by means of an old fence on the east side, 10 to 15 rods long, a fence row, hedge row, some trees and shrubbery, a definite line between the premises was established; that for 20 to 25 years the parties and their predecessors in title had cultivated, worked, pastured, and used' their respective premises to the fine so marked; that' none had crossed the line, and during all those years no dispute had arisen, and the neighbors had understood it was the boundary. When plaintiffs purchased, Mr. Renwick understood the fence at the east was on the line. When defendants purchased, Mr. Noggle was informed by Harris, the then owner of the Renwick premises, who purchased in 1901, that the fence, trees, shrubbery, etc., marked the line. Some three or four years ago, Cascade road, which is the western boundary, was improved, and the land abutting on it. became valuable. In 1927 plaintiffs had a survey made, found that the line of occupancy was wrong, and this controversy arose. The true line is east and west, while the lines of occupancy run northeasterly from the road.
There was no showing of old survey, dispute, settlement, mutual mistake, or other reason to account for the divergence from the true line. The court did not err in failing to charge upon such matters, as there was no issue upon them.
The rules for establishment of a boundary line by acquiescence are summarized by Mr. Justice Fellows in Hanlon v. Ten Hove, 235 Mich. 227, 231:
“While acquiescence alone is not a defense, if acquiescence follows the resolving of a doubt as to where the line is or the settlement of a bona fide controversy, which settlement agreement contemplates an agreed line, and the monuments of such line are fixed and maintained thereafter, such line so established and acquiesced in is the line, and the acquiescence need not continue for the statutory period; likewise where the line is acquiesced in for the statutory period it is also fixed.”
In that case it was held that the acquiescence of predecessors in title can be tacked on that of the parties, and if the whole period of acquiescence exceeds 15 years, the line becomes fixed, regardless of whether there had been a bona fide controversy as to the boundary.
The court submitted both the location of the line and the question of acquiescence for the statutory period to the jury under proper instructions. By answer to a special question, the jury found the line to be where defendants claimed it was, and by general verdict resolved both questions in their favor. If error was committed by the court in his general discussion of boundaries and surveys in the charge, it was harmless. Objections to the special questions and to the testimony, not having been made at the trial, cannot be considered here.
Plaintiffs’ declaration set up two specific descriptions, one at the east and the other at the west end of the disputed strip. The judgment' as entered located the boundary line across the whole .length of the strip. The verdict and judgment must follow the declaration in ejectment. Bringhurst v. Railroad Co., 78 Mich. 570. The judgment should be amended to conform to the declaration.
Judgment for defendants for the lands described in the declaration -is affirmed, with costs, and the cause is remanded to the circuit court to amend the judgment.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Stone, C. J.
This is an action of ejectment to recover possession of the south fractional half of the southwest fractional quarter of section 30 in township 10 north, range 1 west, being in Gratiot county. To a declaration in the usual form the defendants pleaded the general issue. The case was heard before the court without a jury. From the amended findings of fact filed by the trial judge we compile the following facts:
The lands were duly pre-empted by the plaintiff- on March 6, 1884. Final certificate issued to him February 21, 1885, and a patent was duly issued to bim by the United States on December 11, 1891. On July 27, 1886, plaintiff mortgaged said lands to one Ambler for $200, and on May 13, 1887, he gave another mortgage thereon to one Wannacot for $100. By assignments which were duly recorded these two mortgages became the property of one Caroline E. Squires, who on July 6, 1891 (both mortgages being due and unpaid), filed her bill of complaint to foreclose the same, naming as defendants the said plaintiff, who gave the mortgages, and one William Norris, who. was made a defendant under the clause in said bill which charged that he “has or claims to have rights and interests in the premises described in said indentures of mortgage, or in some parts thereof, as subsequent purchaser or incumbrancer, or otherwise.”
On July 6, 1891, a subpoena in the usual form was issued, “To Wm. Kerr — Greeting,” which was made returnable August 4, 1891, and was returned August 13, 1891, by the sheriff that he was unable to find the defendant. On that day an alias subpoena in the usual form was issued to said defendant Kerr, and there was a like return made on December 23, 1891, and again on said last-named day a pluries subpoena was issued in due form to said defendant Kerr returnable April 26, 1892, and a like return was made thereto. On April 22, 1892, another subpoena was issued in the same form/ to defendant Kerr alone, and returnable May 24, 1892, and the same was served on said Kerr April 25, 1892, in the county of Emmet, Mich., by the sheriff of said last-named county, and due return was made thereof, and the same was filed in the office of the register in chancery on May 3, 1892. In all of said four subpoenas Caroline E. Squires was named as complainant and William Kerr was named as defendant, and no service of any other subpoena issued in said cause was made on said defendant William Kerr, and he did not appear in said cause. The underwriting attached to this last subpoena, which was in the usual form, was signed by solicitors for the complainant, and read as follows:
“A personal decree is sought against the defendant William Kerr, and the bill is filed to reach interests in property, and not to obtain any further relief against the remainder of the defendants.”
On the 1st day of June, 1892, a subpoena was issued returnable June 13, 1892, directed as follows:
“To William Kerr (who has been served by the sheriff of Emmet county) and William Norris — Greeting.”
And the same was served upon said defendant William Norris by the sheriff of Gratiot county. (The record gives the date of service as June 31, 1892, an impossible date.) On July 1,1892, an affidavit of nonappearance of defendant Kerr was filed, and on the same day an order pro confesso as to him was duly entered. On July 13, 1892, the defendant Norris appeared and filed a lengthy answer. On July 20, 1892, suggestion of the death of said complainant was made upon the record, and proceedings were had which resulted in Lorenzo Squires being appointed administrator of the estate of said complainant by the probate court of Gratiot county, and afterwards, and on December 27, 1892, by an order of the court, the said foreclosure suit was revived, and continued in the name of Lorenzo Squires, administrator. None of these proceedings to revive the foreclosure suit was served upon the defendant William Kerr, nor does it appear that he had knowledge of such proceedings.
After the said foreclosure suit was revived and continued in the name of the administrator a replication was duly made and filed on February 6, 1893, to the answer of said defendant Norris, and on February 13th notice was duly given by the solicitors for the complainant to the solicitors for the defendant Norris that complainant claimed the right, under the statute, to the examination of witnesses in open court, and notice of hearing was given to solicitors for defendant Norris, that the cause would be brought on for hearing on March 13, 1893, at the March term of said court, and that the same would be heard on pleadings and proofs taken in open court. On April 20, 1893, the said defendant William Norris by his solicitors filed a withdrawal of his answer, and waived notice of any further steps to be taken by complainant in the case. On May 15, 1893, an affidavit of regularity was filed by complainant, in which it was stated:
“That the said bill has been taken as confessed by the said defendant William Kerr, and the said William Norris, after appearing and answering, _* * * _ withdrew his said answer before the hearing of said cause and after due notice thereof, and made no defense to said cause and the bill of complaint made and filed as aforesaid, and also by his withdrawal waived all right to any notice of any further proceedings in said cause, * * * and that all the proceedings to take said bill as confessed have been regular and according to the rules and practice of this court.”
On May 15, 1893, a decree of foreclosure was made in the usual form, allowing sale of.said premises at any time after June 20, 1893, and thereafter, on June 22d, a notice of sale was given for the 14th day of August, 1893. On July 31, 1893, proof of posting notices of sale was made in the usual form, and on August 14, 1893, proof of the publication in the usual form of notice in the Gratiot Journal was filed.
On the said 14th day of August the sale was made to Aaron L. Squires and Julia E. Squires for tjie whole amount due upon said mortgages, with interest thereon, and costs and charges amounting to $592.78, and a commissioner’s deed was made and delivered to them, and the same was on the same day duly recorded in the office of the register of deeds of said Gratiot county. By mesne conveyances the defendants in the instant, case became the purchasers of the premises in question. It was conceded at the trial that the plaintiff herein was in possession of the said premises until after August 1, 1893, and that the purchasers at said foreclosure sale went into possession in the ,fall of 1893, and that they and all those who purchased under them, including the defendants herein, had continued in possession, to the time of the trial.
The conclusions of law as found by the trial court were as follows:
(1) “Plaintiff raises but one question as to the legality of the foreclosure proceedings, and that is that the chancery court did not obtain jurisdiction in the foreclosure cause so as to cut off his title to the property in question, for the reason that there were two defendants in that chancery ’cause, and the subpoena which was served on him named him alone as defendant.”
(2) “The only question in the case is whether the mortgagor can, nearly 15 years after the sale and deed by the commissioner under the decree of foreclosure in chancery, and where the purchasers at the sale have been in possession of the premises since shortly after the sale was made, recover in ejectment because the subpoena in chancery served upon said mortgagor in the foreclosure proceeding did not contain the name of another defendant who was made so under the subsequent incumbrancers, etc., clause, and when the underwriting states that a personal decree is sought against said mortgagor, and the bill is filed to reach interests in property, and not to obtain any further relief against the remainder of the defendants.”
(8) “I do not think the omission was fatal to the jurisdiction, or that the foreclosure proceedings were invalidated by reason thereof. Other provisions of Chancery Rule 4 seemingly as important as the one requiring the names of all defendants to be inserted in the subpoena have been held merely irregularities that must be called to the attention of the court early. Creveling v. Moore, 39 Mich. 563.”
(4) “And a defendant who is served with subpoena cannot ignore the same and after decree have the proceeding held for naught. Gould v. Castel, 47 Mich. 604 (11 N. W. 403); Colton v. Rupert, 60 Mich. 318 (27 N. W. 520).”
(5) “The invalidity of the argument that, if Norris’ name had been inserted in the chancery subpoena which was served upon defendant Kerr,- he could, have known what suit was pending, and that the omission was misleading, is well shown here. Norris answered, and the answer shows that he was not in any way connected with either the plaintiff or defendant, or with either of the mortgages'in the chancery foreclosure case. He was a mere interloper, denying the rights of both parties, and, so far as it appears, had_ no connection with the plaintiff.^ If he had any rights, it was not connected with the foreclosure case, and could not have been litigated therein. Puterbaugh’s Mich. Ch. (3d Ed.) pp. 344, 346.”
(6) “I think defendant’s counsel is also correct in his contention that the statute of limitations applies. 2 Comp. Laws, § 9714 (3 Comp. Laws 1915, § 12311); Potter v. Martin, 122 Mich. 542 (81 N. W. 424); Semer v. Auditor General, 133 Mich. 569, 576 (95 N. W. 732); West Michigan Park Ass’n v. Railroad Co., 172 Mich. 179 (137 N. W. 799).”
(7) “The claim made by plaintiff’s counsel when the evidence was being introduced that the proceedings to revive the foreclosure suit in the name of the administrator should have been served upon the defendant Kerr was abandoned at the argument.”
(8) “Let judgment be rendered for the defendants, with costs.”
Judgment having been entered for the defendants, the plaintiff brings error, and by appropriate exceptions and assignments of error raises the question of the validity of the foreclosure proceedings, asserting that the decree in the foreclosure case was void because the names of the defendants in that suit were not inserted in the subpoena served upon the defendant Kerr, the plaintiff here.
We are unable to agree with counsel for appellant in their contention that the circuit court in chancery in the foreclosure case did not obtain jurisdiction over the defendant Kerr, and that the decree was a nullity. In addition to the cases cited by the learned circuit judge, we call attention to the following: Parks v. Goodwin, 1 Doug. 56; Johnson v. Johnson, Walk Ch. 309; Calender v. Olcott, 1 Mich. 344; Johnson v. Shepard, 35 Mich. 115; Gould v. Castle, 47 Mich. 604 (11 N. W. 403); Low v. Mills, 61 Mich. 35 (27 N. W. 877); Hennes v. Chas. Hebard & Sons, 169 Mich. 670 (135 N. W. 1073).
We are of opinion tha^the defect was merely an irregularity which, under our broad statute of amend ments, the court could have readily amended. As was said in Johnson v. Johnson, supra:
“When any party wishes to set aside the proceedings of his adversary for a mere technical irregularity, he must make his application at the first opportunity; and a defendant who has not caused his appearance to be entered is entitled to no more indulgence than one who has appeared.”
The chancery rule referred to does not provide that the process shall be void, or be quashed, or set aside, if the rule is not complied with. It cannot reasonably be said that this rule has any greater force than a statute. The power of the court to amend and correct such irregularities of noncompliance with statutory provisions is often exercised. Van Slyke v. Books, 181 Mich. 88 (147 N. W. 579); 3 Comp. Laws, §§ 10268, 10270 et seq. (3 Comp. Laws 1915, §§ 12478, 12480 et seq.).
We think that our own decisions dispose of the question, and that it is not necessary to cite cases from other jurisdictions. The entire argument of .counsel for appellant is based upon the claim of want of jurisdiction in the court to enter the decree in the foreclosure case. We cannot agree with that claim.
We are of opinion that the trial court properly disposed of the case, and the judgment below is affirmed.
Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and PERSON, JJ., concurred. | [
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Sharpe, J.
A highway, running north and south, crosses the line of defendant’s railway almost at right angles at the village of Atlas, in Genesee county. On Sunday, February 20, 1921, about two o’clock in the afternoon, John H. Densmore was driving a Ford roadster, going north, on the highway. With him in the car were his wife, his child Odessa, and Florence Phinney, the wife of plaintiff. Defendant has a small station house at Atlas, located about 50 feet east of the highway. About 1,800 feet east of the crossing, defendant’s track makes a long sweeping curve to the south. One of defendant’s limited interurban cars, going west, not scheduled! to stop at Atlas, collided with the roadster driven by Densmore at the crossing. As a result of the collision, the three adults were killed, and the child was injured.
Plaintiff, as administrator of his wife’s estate, brings this action to recover the loss sustained, due to her death. The cause was submitted to the jury, who found for the defendant. Plaintiff reviews the judgment entered by writ of error. The assignments will be considered in the order grouped and discussed by counsel.
It appears that an electric alarm or signal bell had been installed by the defendant at this crossing. Negligence was predicated on the failure of defendant to keep and maintain this bell in repair and condition to ring when its car approached the crossing. There was conflict in the testimony as to whether it did ring on the approach of the defendant’s car. One of plaintiff’s witnesses was asked: “You may state whether or not the bell always rang as interurbans approached the crossing?” and another: “Tell us whether that bell sometimes rang and sometimes not when a car passed * * * if you had observed?” Defendant’s objections to these questions were sustained. Later, plaintiff’s counsel submitted an offer to prove that the bell was out of repair at the time of the accident, and had been for a long time previous thereto, “so that sometimes when a car approached the crossing it would ring and other times it would not ring; that sometimes it would ring when there was no car approaching.”
During the discussion following the offer, defendant’s counsel said:
“And in so far as this particular bell is concerned, I haven’t any doubt that on many occasions it did fail to operate and was immediately put back in order.”
The court ruled that plaintiff might—
“show that on that occasion and for a period of time sufficient to bring it to the attention of the officials, or ticket agent particularly, I think you ought to be allowed to show that if you can do it, but I won’t allow you to show the irregular ringing covering a long period of time and that it was habitually out of repair and all that.”
A witness was thereupon recalled, who testified positively that the bell did not ring either at 10:30 or 12:30 on the day of the accident, when limited cars went through.
On the cross-examination of defendant’s witness Thompson, the station agent at Atlas, he was asked:
“As a matter of fact you know, do you not, Mr. Thompson, that this crossing bell was very often out of repair so that it did not ring?”
and answered, without objection:
“It was occasionally, it had been out of repair occasionally all the time up to the time of this accident to a certain extent.”
Perry Gale, one of defendant’s witnesses, who- lived near the crossing, was asked on cross-examination:
“You also know, do you not, that for some time before and right up to the day of this collision the crossing bell did not ring?”
and answered, without objection:
“A great many times it did not, that was true as long as I have known it; I don’t know whether it rang all that day up to the time of the crash or not.”
In view of the fact that the proof plaintiff sought to introduce was afterwards placed before the jury, and in a manner quite as effective as if it had been elicited from his own witnesses, it cannot be said that there was prejudicial error in the rulings made.
Error is assigned on the refusal of the court to permit a witness to testify to what Earl Hinkley, defendant’s motorman, said concerning the accident about ten minutes after the collision. In the meantime, he had entered the waiting room and talked with his superior officers over the telephone. The reasons for excluding such evidence were pointed out by Mr. Justice Stone in Hyatt v. Leonard Storage Co., 196 Mich. 337. The authorities are there reviewed and discussed at length. Spontaneous statements, made at the time of the accident, or so closely connected with it as to be evoked or prompted by it, are admissible as part of the res gestse. Counsel discuss this assignment at length, and cite many authorities in support of their contention. We think the rule of determination as to the admissibility of such evidence as laid down in the Hyatt Case should be adhered to. Under it this proof was not admissible. See, also, Link v. Fahey, 200 Mich. 308.
Edward Elford, who was in the employ of the defendant as a conductor on an interurban car at the time of the accident, and had been so employed for several years prior thereto, was asked “what would be the proper thing to do' to stop it as quickly as possible in case of an emergency.” An objection to the question asked was sustained. Error is assigned thereon. Hinkley, called for cross-examination, had testified that he first saw the automobile when his car was 800 or 900 feet from the crossing; that the station house afterwards obstructed his view, and he next saw it when it was about 50 feet from the crossing and his car about 250 or 300 feet therefrom; that he made no special effort to stop until within 100 feet from the crossing, and that he then applied the brakes with full force; that he did “not sound the foot gong, or reverse the motor, nor apply the sand on the wheels;” that he had theretofore sounded the usual crossing whistle; that he considered the application of the air (emergency) brake the safer way to quickly stop his car; that at that time he was going from 35 to 40 miles an hour. He admitted that on a former trial of this case he had testified that he had not applied the brakes until his car was within 35 or 40 feet from the crossing, and, on being asked, “That is right, is it?” answered, “Yes, sir.” Clarence White, a witness for plaintiff, who was formerly a motorman in the employ of the defendant, testified that in case of an emergency the best thing to do in order to stop quickly is to “reverse the car and use the sand on the rails.” Elford had never acted as a motorman. He testified that he had “seen motormen do different things in stopping quick.” Hinkley was called upon to do that which in his judgment, based upon his experience and any instructions which might have been given him, would be the most effective to stop his car when the collision seemed imminent. Whether he at that time neglected or failed to perform this duty, in our opinion, could be tested only by the judgment of other motormen or men having special knowledge of the mechanism provided for stopping cars and the most efficient manner of applying it to secure the desired result.
Error is assigned on the refusal of the court to permit plaintiff’s counsel to show by Elford and other employees of the defendant that Hinkley had the reputation of being a reckless motorman. The authorities cited by counsel in support of his contention that this evidence was admissible are cases in which employees were injured through the negligence of a fellow-servant. We think they have no application to the facts here presented. The jury were concerned only with the manner in which Hinkley drove his car and the effort he made to stop it at the time of the collision. Williams v. Edmunds, 75 Mich. 92, 96; Boick v. Bissell, 80 Mich. 260; Langworthy v. Green Township, 88 Mich. 207, 217.
Error is assigned upon several parts of the charge. It is urged that the instructions given were in the language of requests preferred by defendant, and were not applicable to the facts testified to. The jury were instructed that the negligence of the driver of the automobile was imputable to plaintiff's decedent, and that if he was guilty of any negligence the plaintiff could not recover. It is said that this instruction omitted the necessary qualification that it must be found that such negligence “contributed to t the collision and the injury.” Prior thereto the court had said that in order for plaintiff to recover it must be shown that “the injury was caused by the negligence of the defendant company, and that her own negligence did not contribute thereto.” In the closing language hereafter quoted, it is also so stated. We are impressed that a jury of ordinary intelligence must have understood from the charge taken as a whole that the negligence of Demsmore, to operate as a bar to plaintiff’s recovery, must have contributed to the injury sustained by the deceased.
In instructing the jury as to the duty of a person about to cross a railroad track to look and listen and, if need be, stop to ascertain the near approach of a car thereon, the court said:
“If the view is unobstructed and the pedestrian or driver of the vehicle takes this precaution, there is not much opportunity for him to be injured.”
It is urged that the proofs here show that the view was obstructed, and for that reason this instruction should not have been given. This utterance of the court but stated the general rule. It was followed by a specific reference to the fact that the undisputed proof showed that the view of the driver, when he reached a point at least 24 feet from the crossing, was no longer obstructed by the station building, and the jury could but have understood that what was said to them in this respect applied to the duty of the driver after he had reached that point. They were also instructed as to the duty of the defendant to maintain its crossing signal in good repair, and the right of the driver to rely thereon.
The duty of the driver of an automobile when approaching a railroad crossing has been pointed out in many of our recent cases. Molby v. Railway, 221 Mich. 419; Sheets v. Railroad Co., 224 Mich. 588; Britten v. Railway Co., 224 Mich. 91; Eisele v. Railway Co., 224 Mich. 286; Downey v. Railway Co., 280 Mich. 243. The safety of persons riding in the cars, as well as of those in the automobile, demands that he exercise reasonable care to avoid a collision. If. his view of the crossing be unobstructed for a considerable distance each way, and a careful observation discloses that a car or train is not approaching, he may safely proceed to cross without stopping. But, if his view be obstructed from any cause, his duty is plain. He must reduce his speed in order that when he reaches the point at which he can obtain a view of the track, if a car is seen to be approaching the crossing, he may be able to stop before passing thereon. The car has the right of way. The traveling public seems to demand that it shall travel at considerable speed and, as before stated, the safety of its passengers, as well as those in the automobile, imperatively demands that drivers shall be watchful and vigilant at such crossings; look at a point where they may see, and have their automobiles under such control that they may stop if need be to avoid a collision. The charge, taken as a whole, we think fairly instructed the jury as to the duty thus imposed on the driver, and is not subject to the criticism indulged in by counsel. It is apparent to .us from a reading of the entire record that the jury must have found that Densmore drove his automobile in front of the approaching car without the exercise of that care required of him under the circumstances.
In the closing paragraph, the court said:
“I charge you that you should not be influenced in this case by expressions of counsel whereby they express an opinion as to what has been proven or what has been disproven, and particularly you should not be influenced by expression of counsel for plaintiff. That should have no weight with you when he expresses his opinion that Hinkley did not reverse the motor and put on the air was not the best thing to do under the circumstances.. That is the expression of an opinion. It is for you gentlemen to determine from all the testimony in the case whether or not the motorman did his utmost and applied such appliances as he should have done. The point I make is, you should not be influenced by expression of counsel one way or the other. Neither should you be influenced by counsel for defendant as to what opinion he should present as to what credence is to- be given to any particular part of the testimony. That is your duty as jurors. You have seen the witnesses in the chair and it is for you to judge of their candor, the probability, or improbability of the truthfulness of the stories, their interest in the outcome of the case, and from all evidence in the case adduce the plain fact who was to blame. Has the plaintiff proven his case by the preponderance of the evidence? Has he proven in the manner I have defined that the defendant company was guilty of negligence and that he, or his decedent did not contribute thereto? If he has so sustained, by the proofs, his case, it would be your duty to find in his favor under the instruction of the court such a sum as would compensate the estate of the deceased, , no more, no less.”
It is urged that counsel have the right to insist in their argument that certain facts have not been established by the proofs. That is undoubtedly true. We have not before us the argument of counsel, and are not apprised of the opinions expressed, to which the court alluded. We can but presume that they were as to matters of which counsel assumed to have some knowledge not disclosed by the proofs.
Finding no reversible error, the judgment is affirmed.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Steere, J.
Defendant is a real estate broker in the city of Detroit with his main office in the Free Press building and several branch offices in different parts of the city in charge of branch managers with salesmen under them. One of the branch offices was located at the intersection of Grand River avenue and Plymouth road in charge of a branch manager named Canham, with a salesman working for or under him named Wenner. Two men named Williams and Higgs were owners of a contract equity in two lots numbered 9 and 10 of B. E. Taylor’s Detroit city subdivision of the south “i/2 of the N. W. % of N. W. % of fractional section 28, T. 1 S., R. 11 E,” located north of Grand River avenue on the west side of Cherrylawn avenue. They had made Taylor several payments on the purchase price and, desiring to sell their interest in said lots, they had been listed for sale in defendant’s Grand River branch office. Plaintiff Herman Krause had lived in that vicinity just south of Grand River avenue for about two years and knew Wenner who, on March 16, 1920, solicited him to buy the lots. Krause testified that Wenner had a plat of the property called Westlawn subdivision, and pointed out on it lots 9 and 10 as the lots he had for sale. He then went with Krause over on Cherrylawn avenue and showed him as those lots two, marked 9 and 10, which proved to be in another subdivision “called Cherrylawn,” also on the west side of Cherrylawn avenue, but much nearer to Grand River avenue. Krause agreed to take the two lots and paid Wenner $25 down, taking the following receipt:
“Frank P. Miller,
“Builder, Investments, Real Estate,
Loans, Insurance, Rentals.
“Suite 708 Free Press Bldg.
“Detroit, Mich.
“March 16, 1920.
“Received of Mr. Krause, Address 3589 Ohio Blvd. Twenty-five dollars deposit on lot No. 9 and 10, sub division Cherrylawn avenue. Subject to approval of home office.
“Price $2,700. * * *
“Frank P. Miller,
“Per Jno. M. Wenner, Agent.”
The sale was consummated the next day, Canham, defendant’s branch manager, attending to the details. The land contracts for the lots from B. E. Taylor to Williams and Higgs duly assigned by them to the plaintiffs were delivered to Krause and he gave a check payable to them of $520.46 to cover the price for their equity in the lots, and the deal was closed. On the covers of each of the contracts delivered to Krause the number of the lot and the following appeared in large black letters and figures:
“B. E. Taylor’s Detroit City Subdivision, Herman and Ida Krause in account with B. E. Taylor 501-505 Ford Building, Detroit, Michigan.”
On the next day Krause took the contracts to B. E. Taylor’s real estate office when the following was added to each:
“We, the above named assignees, accept the above assignment and agree with B. E. Taylor to perform said contract.
(Signed) “Herman Krause, Ida Krause, address 3539 Ohio Boulevard.
“I hereby consent to the above assignment.
“B. E. Taylor, by R. L. S.”
About ten months later, plaintiffs’ attorney wrote a letter addressed to—
“Mr. Frank P. Miller,
“708 Free Press Bldg.,
“Detroit,'Mich.
“Mr. John M. Wenner,
“657 Bewick avenue,
“Detroit, Michigan.
“Mrs. Jacquetta Higgs,
“3220 Monica avenue,
“Detroit, Michigan.
“Mr. Maurice E. Williams,
“3220 Monica avenue,
“Detroit, Mich.
“Dear Sirs and Madam:”
Stating at length the transaction in substance as already related from the writings in evidence and Krause’s testimony, saying further:
“That the lots pointed out were on Cherrylawn avenue, one block from Grand River avenue, whereas the lots which my clients now for the first time discover that they are buying are located several blocks from Grand River avenue, and are worth very little.
“Either Mr. John M. Wenner made a very careless mistake, and also a very serious one in pointing out the lots that he did to my clients or else he did so fraudulently, and in any event I believe that all of the parties to whom this is addressed are responsible to my clients for the mistake or fraud of Mr. Wenner.
“It appears that the lots he pointed out to my clients were lots No. 9 and No. 10 of Taylor’s Westlawn subdivision. My clients have paid on this property $787.42 and do not propose to pay any more money as they think that the amount of money which they have already paid is more than the lots are worth, and they intend to hold you and each of you responsible for the repayment to them of the amount above stated. Therefore on their behalf I am tendering to each one of you an assignment of the lots in question upon the payment by you to my clients of the above mentioned sum, and in case you do not desire to avail yourself of this, my client will surrender the contracts to B. E. Taylor, and hold you responsible for the sum of money paid.
“Respectfully yours,”
Defendant denied any knowledge of this transaction until he was sued. His secretary, however, wrote plaintiffs’ attorney acknowledging the communication and replying that they were unable to locate Wenner after extended effort and until they could do so they were in no position to discuss the matter. The attorney’s letter is not shown to have been mailed to any of the other parties to whom it is addressed and none of them are made parties to this action, neither were the contracts or an assignment of them ever tendered to Williams and Higgs, from whom he obtained them, nor otherwise than by that letter to defendant but he turned them over to Taylor, the original vendor, for what purpose is not made clear. No testimony was introduced as to the respective or comparative value of the lots involved here. The trial court directed a verdict in favor of plaintiffs for $787.42, being the total Krause testified he had paid for or on .these contracts, and entered judgment thereon.
The principals in this deal were plaintiffs as vendees, and Williams and Higgs as vendors. There is no proof of any notice of rescission or tender back, or offer of restitution in any form, by the vendees to the vendors of those land contracts representing an interest in the property. Neither are made parties to this action. No claim is made that they had knowledge of anything irregular or dishonest in the transaction. Taylor was an innocent outsider to the deal who owned the fee title and at plaintiffs’ request accepted them as assignees of the contracts on their signing them as such, and assuming the vendees’ obligations. Defendant was Williams’ and Higgs’ agent to sell as a broker their interest in that property for a commission. He had no interest in the transaction beyond his commission and there is no proof or suggestion that he or his manager who attended “to the details of the transfer had any knowledge or notice of any claim of anything dishonest or irregular in connection with it, until some ten months after the deal was closed. It may be conceded Wenner was agent 'of defendant Miller to find a purchaser, and could bind his principal within the scope of his agency. He was not, however, authorized to and did not close the deal. What passed between him and Krause was tentative and oral. Just how far the principal in such a transaction as this is bound by or responsible for the unauthorized and unknown false or fraudulent conduct of his agent is a possibly pertinent question, upon which plaintiffs’ counsel is silent. We do not find it necessary to break that silence, except to note that upon the record before us it would at least be a question for the jury. Plaintiffs’ claim of false representation and inducement is based entirely on Krause’s testimony as to what passed between him and Wenner. Krause had lived in that vicinity for some two years, knew there were several subdivisions platted around there, could read and write, had some experience in real estate transactions, knew he was dealing with these parties at arm’s length, and testified more than once that Wenner showed him a plat of Westlawn subdivision and pointed out the two lots 9 and 10 of that subdivision as the lots he had for sale. Those two lots in that subdivision were on Cherrylawn avenue. He knew, or then learned, that Wenner was but a soliciting salesman who did not have any of the muniments of title or power to close the deal. When they came to close the deal defendant’s branch manager produced and gave him the contracts containing a full description of the property indorsed in large black letters with the name of the subdivision and title owner. After he received the assigned contracts he took them to Taylor’s office and secured his written consent to their assignment and assumed in writing the obligations of the contractees under them and thereafter made the periodical payments required by them to Taylor for nearly a year, having in his possession all the time the papers describing the property he was making payments on and receiving receipts for. His only explanation is that he did not read the contracts or notice the indorsements on them and first learned of the mistaken description in them when another party claimed the lots he thought he had bought. Wenner was in defendant’s employ for only about two months and when Krause first made his claim had left Detroit.
The burden of proof was upon plaintiffs to show by a preponderance of convincing testimony, against the plain documentary evidence fair on its face, that in view of all the attending circumstances they had in fact been fraudulently induced to make the purchase, and also to show in order to recover damages their actual and necessary loss. The money Krause testified he had paid Williams and Higgs, and to Taylor his contractor in keeping up payments on the contracts, was not necessarily the test of his damages. He secured in the deal a contract interest in and right to two lots of presumed and indicated value, on the same street as those he claimed he bargained for but further away from Grand River avenue and of less value as he stated, how much less he does not show. If the question of damages was reached that also would be a question for the jury.
The judgment is reversed, with costs to defendant, and a new trial granted.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Champlin, J.
Plaintiffs’ intestate obtained a decree in the circuit court against the defendants, declaring that Eeuben C. Sibley held certain lands in trust for complainant, and had, as such trustee, been guilty of waste, and directing the execution of a deed, and payment of 812 damages on account of waste committed; also declaring a certain mortgage executed by Sibley to defendant Cameron to have been made by Sibley mala fide, and null and void, and directing its discharge of record, and that defendants pay complainant her costs of suit.
After decree, and before the expiration of the time allowed by the statute for appeal, complainant died, and the suit was revived in the names of the above-named plaintiffs.
Eeuben C. Sibley and Caroline L. Cameron appealed from the decree to the Supreme Court, and, as principals, with two sureties, joined in a bond, a copy of which is as follows:
“Know all men by these presents, that we, Eeuben C. Sibley and Caroline L. Cameron, as principals, and Wellington Bidwell and Theodore Hall, as sureties, are held' and firmly bound unto William A. Warner, administrator of the estate of Mary Jane Warner, deceased, Myron A. Warner, Ernest Warner, Cordon Adelbert Warner, and Oar linda E. Oaks, or to their certain attorney, heirs, executors, administrators, and assigns; 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 seals; dated the twenty-fifth day of June, 1883.
“The condition of this obligation is such that if the above-named Reuben C. Sibley and Caroline L. Cameron, impleaded with Harvey B. Hall, as defendants, and now revived in the names of the above-named obligees as complainants, shall pay all costs of the said William A. Warner, administrator of the estate of Mary Jane Warner, deceased, Myron A. Warner, Ernest Warner, Cordon Adelbert Warner, and Carlinda E. Oaks, in the matter of appeal of said cause, without fraud or delay, then this obligation shall become null and void; otherwise to remain in full force and virtue.
“Reuben C. Sibley. [l. s.] “Caroline L. Cameron. |l. s.] “Theodore Hall. [l. s.] “Wellington Bidwell.” [l. s.J
The penalty of this bond was fixed, and the bond approved, by a circuit court commissioner.
Another bond of like import was also approved and filed, but is unimportant in the discussion of the points raised, which apply alike to both bonds.
The Supreme Court affirmed the decree as to all except Mrs. Cameron, and modified it so as to protect her rights as mortgagee. Costs were decreed against Sibley; but as Mrs. Cameron made a joint appeal, and signed & joint bond, it was. decreed that as to her no costs should be granted either in the Supreme Court or the court below, and that no costs should go against her in either court. Warner v. Hall, 53 Mich. 371, 375.
This is a joint action against the obligors in the appeal- bond. The declaration sets forth the bond and conditions, and then proceeds to assign the specific breaches for which the action is brought, as follows:
“And although afterwards, to wit, on the sixteenth day of April, A. D. 1884, at the term of said Supreme Court held at the Supreme Court room in the city of Lansing, said decree of said circuit court, in chancery, so far as it decreed payment and performance by the said defendant, Eeuben C. Sibley, was affirmed, and he, by the final order and judgment of said Supreme Court in the matter of said appeal, was adjudged and decreed to pay the costs of both courts to the said complainants named in the condition of said bond, which amounts to a large sum, to wit, the sum of $177.76, yet the said plaintiffs aver, and in fact say, that the said Eeuben C. Sibley hath not paid the amount of fche judgment and decree so affirmed, and the costs, nor any part thereof, so decreed to be paid by the final order and decree of said Supreme Court, in the matter of said appeal, to 'the said complainants, nor to said plaintiffs, according to the tenor and effect of the writing obligatory; and the final order and decree so as aforesaid affirming said decree appealed from still remains in full force and effect, in nowise satisfied, vacated, or discharged, of all which the defendants had notice.”
The defendants Sibley, Hall, and' Bidwell did not plead, and their default was taken.
Mrs. Cameron demurred to the declaration, and assigned the following grounds:
“ 1. That the said declaration does not set forth any cause of action, as against the defendant Caroline L. Cameron. '
“2. The said declaration does not aver that costs were adjudged against the said Caroline L. Cameron by the Supreme Court in the case mentioned, so as to make this defendant liable upon the appeal-bond therein mentioned and set forth.
“3. No breaches of the séveral bonds declared upon are averred, as against this defendant.
“ 4. The Supreme Court expressly declared and determined in the case referred to that this defendant, Caroline L. Cameron, should not be liable for costs therein, and thereby released her from all liability on said appeal-bond; and also for that the said declaration is in other respects uncertain. informal, and insufficient, as against the defendant Caroline L. Cameron.”
The demurrer was overruled, with leave to plead; but, defendant preferring to stand upon her demurrer, her default was entered for want of a plea, and damages were assessed by the court, which included:
1. The $12 decreed to be paid by Sibley as waste;
2. Costs of the circuit court, in chancery;
3. Costs of the Supreme Court awarded against Sibley;
4. Interest on the several items taxed, viz., on the damages from the date of the decree, and on the costs from date of taxation;—
And judgment was rendered therefor by the circuit court.
The first question presented is whether the declaration alleged a cause of action against Mrs. Cameron. The only breach of condition assigned was that the obligor Sibley had not performed the decree of the Supreme Court in not paying the $12 awarded as damages for waste, and in not paying the costs of the suit decreed against him. This showed a cause of action upon the bonds set out, in which Mrs. Cameron and Sibley were principals, and the other defendants were sureties. Nothing appeared upon the face of the declaration to show that Mrs. Cameron was discharged from any obligation to pay or perform the decree. This defense could not be raised by demurrer, unless the fact appeared upon the face of the declaration.
Upon the assessment of damages, the decree of the circuit court, in chancery, was read in evidence; the two appeal-bonds ; the decree of the Supreme Court made on appeal; and the certified copy of the bills of costs. From this evidence it appeared that the interest which Mrs. Cameron had in the suit was distinct from that of Sibley. She appealed to protect her mortgage interest, and prevailed. So far the decree was in her favor. In the matter of costs, she did not recover any, and none were awarded against her. The condi tion of the bond, so far as she was concerned, was fulfilled.
Appeal-bonds in chancery have been construed by this Court in the following cases: Kephart v. Farmers’ & Mechanics’ Bank, 4 Mich. 602; Daly v. Litchfield, 11 Id. 497; Prosser v. Whitney, 46 Id. 405; Kennedy v. Nims, 52 Id. 153; Michie v. Ellair, 60 Id. 73.
Under these decisions, it was not competent to include in the assessment of damages against Mrs. Cameron the damages decreed against Sibley, nor the costs of the lower court. It is apparent from the opinion reported in 53 Michigan Beports that ifr was not the intention that Mrs. Cameron should be held liable for any costs in the chancery case. Express mention is made of the fact that she joined in the appeal and in the bond with Sibley, and on that account, while not awarding any costs in her favor, which she otherwise would have been entitled to, it was said that no costs should be awarded against her, and it was so decreed. Under these circumstances, she cannot be held liable upon the appeal-bond.
The judgment must be reversed, and a judgment entered here in her favor for the costs of both courts.
The other Justice3 concurred.
The other bond was conditioned for the performance and satisfaction of the decree or final order of the Supreme Court, and the payment of all costs of complainants in the matter of the appeal. | [
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Champun, J.
This suit was commenced by attachment before a justice of the peace, and on the same day a garnishee summons was issued and served upon one Oarl O. Clark.
On the return-day of the attachment writ the officer returned the writ, with his certificate thereon indorsed that he had been unable to find any goods and chattels within his county belonging to the defendant; and, further, that he had been unable to find any last place of residence of the defendant within said county; and, further, that he had served garnishment papers upon Carl O. Clark upon the tenth day of May, 1884, and left with him a certified copy of the writ; and, further, that he was unable to find the defendant within his county.
The plaintiff appeared, but the defendant did not appear, upon the return-day, .and the justice adjourned the cause to a day certain, more than 30 days from the return-day. Upon this day the plaintiff appeared, and the defendant appeared specially, and moved to dismiss the proceedings for the reasons—
1. That the return of the officer did not show that he used due diligence to find the defendant, or ascertain whether the defendant had a last place of residence in his county.
2. That it did not show that the defendant had no last place of residence in the county.
3. That it was no service of the writ to leave a copy with the garnishee defendant, Cari C. Clark, on the tenth day of May, 1884, and such service is only authorized when the defendant cannot be found in the county, and has no last place of residence therein.
4. That the officer’s return was not sufficient to give the eourt jurisdiction, as it showed neither personal nor substituted service, as required by law.
The motion was overruled, and the defendant then appeared generally, and pleaded the general issue, and gave notice of certain facts which he should show by way of recoupment of damages,
By express consent of the parties, two adjournments were •thereafter had, when the parties proceeded to a trial of the merits, each side introducing witnesses, among whom were the parties.
The trial resulted in a judgment for the plaintiff, and the •defendant' carried the case, by special appeal, to the circuit court.
The errors alleged in the affidavit for the special appeal ■were based upon the decision of the justice in overruling the motion made by the defendant to dismiss the proceedings for want of jurisdiction.
The cause of action was assumpsit, and the amount claimed by the plaintiff as due him upon express contract was $40.20. The justice,'therefore, had jurisdiction of the action and the subject-matter, and the only jurisdictional point raised is that the court did not obtain jurisdiction over ■the person of the defendant.
It is not necessary, in the determination of this case, to •decide whether the court obtained jurisdiction over the per.son of the defendant by the return of the officer, or by virtue of the garnishee proceedings. The questions touching .upon that point are very thoroughly argued by counsel for the defendant in his brief. The questions raised in the special appeal were presented to the circuit court, and were decided adversely to the defendant. A trial had in that court, upon the merits, resulted in a judgment for the plaintiff.
It is said by the counsel for defendant in his brief that the decision of the court below upon the points raised in the special appeal was made in reliance on the case of Manhard v. Schott, 37 Mich. 234. We do not see how that case is distinguishable from this, and counsel for defendant has not ^attempted to do so, but has contented himself by asserting that, if that case so decides, it has not been the law, and •ought not to be.
In Manhard v. Schott, 37 Mich. 335, Mr. Justice Campbell said:
“ Instead of resting on the defectiveness of the process to confer jurisdiction, all of these defendants joined in pleading in bar to the merits, and the case was regularly tried on their plea. ,- Pleading to the merits brings the parties before the court, whether lawfully served with process or not, and they cannot thereafter object to the manner in which they are brought in;” citing Hart v. Blake, 31 Mich. 278; Crane v. Hardy, 1 Id. 56; and Pardee v. Smith, 27 Id. 33-38.
To the same effect are Ripley v. Warren, 2 Pick. 592; Carlisle v. Weston, 21 Id. 535; Simonds v. Parker, 1 Metc. 508; Wilmarth v. Knight, 7 Gray, 294; Blackwood v. Jones, 27 Wis. 498; Baizer v. Lasch, 28 Id. 268; Isabelle v. Iron Cliffs Co., 57 Mich. 120.
No valid or sufficient reason can be advanced to show why ■a voluntary appearance, and pleading to the merits, should not be held a waiver of all objections to the manner in which the defendant is brought into court. After such plea is interposed, the justice either has or has not jurisdiction over the person of the defendant. If he has not, he has no authority to proceed in the trial, or render a valid judgment. The ■question does not depend upon the event of the trial. When the defendant joins issue upon the merits, and takes the chances of a trial, he is not in a position to say, if the result is favorable to him, that the court has jurisdiction to render a judgment in his favor, but, if it results unfavorably, the court has no jurisdiction to render judgment against him.
Inasmuch as parties can confer jurisdiction upon the court by a voluntary appearance (How. Stat. § 6833), there appears to be no good reason why a defendant may not confer such jurisdiction after an irregular or void service of process upon him by a voluntary appearance in the cause. If he does so before objections are taken, they come too late; and, if after they are taken, he waives them by submitting to the jurisdiction and pleading to the merits. He cannot rely upon both, because that would allow him to occupy inconsistent positions, wherein he could claim that the proceedings were valid or void, as the result of the trial upon the merits affected his interests.
The contrary view is taken by the court of last resort in the state of New York. The cases cited from that state by defendant’s counsel fully sustain his position, as well as those referred to in the opinion of Mr. Justice Beardsley in Dewey v. Greene, 4 Denio, at page 94, where he says:
“ When the question of regularity is made at the proper time, and improperly overruled, the party is never concluded by pleading to the action. He does what he can, and at the earliest opportunity, to arrest the irregular proceeding; but, being defeated in this by the erroneous decision of the justice, the party cannot be deemed to have waived anything by subsequently pleading to the declaration and making the best defense in his power.”
It seems, however, that the principle in that state is confined to cases where the objection is made to process to bring the party into court, for it is held that other objections improperly overruled are sometimes waived by afterwards going on with the suit. The force of the decisions in that state has not been recognized .in ours, to the extent to which they seem to go there. But the decisions themselves do not seem to me to rest upon satisfactory reasons.
It is the policy of the law that cases between litigants should be tried upon their merits, and that all technicalities and omissions which do not affect the substantial rights of the parties should be disregarded. This is especially so before justices of the peace. These tribunals are comparatively inexpensive, and jurisdiction is given to that extent that the greater part of the ordinary causes of litigation may be determined before them. It seems to me that it would be encouraging litigation, and the multiplication of costs, to hold that a defendant may take objections which, if good, fully protect his rights, and, instead of standing upon them when ruled against him, may submit himself to the jurisdiction of the court, defend the action upon its merits, and, if defeated, be allowed to raise the same preliminary objections in the appellate court. If the objections are such that may be waived, so that the justice would have jurisdiction over the subject-matter and the parties, a general appearance should be held conclusive evidence of waiver in all cases where such appearance was the voluntary act of the defendant.
In support of his position, the counsel calls attention to the following authorities: Wheeler v. Lampman, 14 Johns. 481; Dewey v. Greene, 4 Denio, 93; Pierce v. Rehfuss, 35 Mich. 53; Michels v. Stork, 44 Id. 2; Maxwell v. Deens, 46 Id. 35; Warren v. Crane, 50 Id. 300; Clarh v. Dunlap, Id. 492; Sager v. Shutts, 53 Id. 116.
In Pierce v. Rehfuss, 35 Mich. 53, the return-day of the writ of replevin was Sunday. The defendant, without objecting io the writ, appeared, and pleaded the general issue, and went to trial, and it was held by so doing he must be held as having waived any such objection. The case does not determine what the ruling would have been had the objection been made, and afterwards a plea to the merits interposed.
Michels v. Stork, 44 Mich. 2, was an action on the case by Stork against Michels, for a wrongful levy of an attachment upon his machinery, whereby he was prevented from carrying on his business. The return made by the constable to the writ of attachment did not show proper service of the writ, and gave the justice no jurisdiction to proceed and render judgment in the cause. It appears from the opinion that on the return-day the defendant appeared, and moved to dismiss the writ because no proper service was shown by the return; and this Court held that this was not such an appearance as gave the court jurisdiction. It does not appear that a plea to the merits was interposed. The opinion contains language from which it might be implied that a plea to the merits did not waive the objections previously made to the manner in. which a defendant is brought into court, but it was not necessary to the decision, and, as no mention is made of the case of Manhard v. Schott, in cannot be regarded as overruling the decision in that case.
Maxwell v. Deens, 46 Mich. 35, was a case where the objection was taken for the first time in the circuit court. The party was arrested upon a civil warrant, and brought before-the justice, when he pleaded the general issue. The defect alleged in the circuit court was the insufficiency of the affidavit upon which the warrant issued. It was held by this Court that the defect was waived by going to trial, and judgment, without at any stage of the cause bringing the matter to the attention of the justice. Whether such objection would have been available if made before pleading issuably, was not passed upon, as it was not in the case.
Warren v. Crane, 50 Mich. 300, was a case where the-defendant was arrested upon a civil warrant, and brought before the justice, when he moved to quash the proceedings for defects in the affidavit; but the motion was overruled. .He afterwards pleaded to the merits, and the trial resulted in a judgment against him. He carried the case, by special appeal, to the circuit court, and judgment was there affirmed. The principal error relied upon in the appeal was the motion to quash. It was claimed in this Court that all right to take advantage of the defects in the affidavit was waived by pleading ,to the merits.
Mr. Justice Cooley,
in delivering the opinion of the Court, in answer to this position, said:
. “ We do not think so. Waiver is a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might, at his option, have demanded or insisted upon. But that action is in no sense voluntary which a party cannot decline to take except at the peril of liberty or property, as was the ease-h-ere. The defendant made his objection, and was overruled.. If he persisted in it afterwards, he would have stood undefended in the case, and might have been kept in confinement until judgment. It would be unreasonable to compel a party to submit to this as the condition on which he should be allowed to question the unlawful arrest. Brown v. Kelley, 20 Mich. 27, is directly in point.”
This case, as well as that of Brown v. Kelley, referred to in the opinion, is plainly distinguishable from those in which it has been held that a voluntary appearance and pleading to the merits waives defects in service of process. When a defendant is brought before a justice by civil warrant, he does not', appear voluntarily, and courts, in defense of the liberty of’ the citizen, have always held that, where timely objections were made to the jurisdiction thus sought to be acquired' over his person, he did not waive them by pleading to themerits, or in going to trial upon the issue so formed.
In Clark v. Dunlap, 50 Mich. 492, which was a case in replevin, there was a defective affidavit and bond. The parties, appeared on the return-day, and joined issue without objections being taken to the proceedings; but on the day set for’ trial, and before the trial was entered upon, the defendant moved to quash the writ on the ground that the bond was ■ not approved as provided by statute. This was denied by the ■ justice, but, on special appeal, was granted by the circuit ■ court. It was held by this Court that, by appearing and joining issue, and adjourning the cause from time to time,without any objection whatever, the defendant submitted to' the jurisdiction, and waived all right to set aside the writ.
The last case cited- by defendant’s, counsel is Sager v. Shutts, 53 Mich. 116, which was replevin before a justice. Before pleading, the defendant moved the court to dismiss-on the ground, among others, that the affidavit was insufficient to give jurisdiction, because not stating that the property did not exceed in value $100. This was refused, and plaintiff had judgment. On special appeal, this judgment was reversed, on the ground that the justice erred in retain ing jurisdiction. This Couft affirmed the judgment, on the ground that the defect was fatal, if timely insisted on. The question in that case was different from the one under consideration, in that it went to the jurisdiction of the justice over the subject-matter.
From a consideration of the authorities cited by defendant's counsel, we do not think that the case of Manhard v. Schott has been disturbed, or any intention manifested of overruling 'it. Expressions in deciding cases relative to objections not having been made, when stating facts, cannot be construed as deciding that, had they been made, a general appearance or pleading to the merits would not have waived them. We adhere to the decision in Manhard v. Schott, which is decisive of this case, and the judgment of the circuit court must be affirmed.
The other Justices concurred. | [
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Morse, J.
The plaintiff in this case brought suit against the defendant for injuries received by him on the twenty-eighth day of April, 1885, by his team of horses being frightened at a box car belonging to the railway company, which is alleged to have obstructed the highway, in the village of Fennville, in the county of Allegan, and from such fright running away with him, and throwing him from his wagon. In the Allegan circuit court, before a jury, he recovered a verdict of $1,000.
The errors assigned all relate to the instructions to the jury by the circuit judge.
The defendant’s counsel complain of the refusal of the court to give the following requests:
“5. It appears affirmatively by the plaintiff’s own testimony that the injury complained of was occasioned, not by an obstruction in the highway, but because one of his horses, which was young and tough-bitted, became so frightened at the car in question (a thing not calculated to frighten horses of ordinary gentleness) that the plaintiff in his then position could not control or manage him, but entirely lost control. Your verdict therefore should be for the defendant.
“ 6. If the plaintiff, on the occasion in question, had ^knowledge that his off horse was young, tough-bitted, and in the habit of shying by reason of ■ fright, and his position on the reach of his wagon was such that he could exercise but ■comparatively little of his ordinary strength in keeping said horse under control, and if, by reason of the fright of the horse and the plaintiff’s inability to control him in his then position, he lost such control, and was thereby injured, then you must find that the plaintiff’s own negligence contributed to said injury, and your verdict should be for the defendant.
“7. From the plaintiff’s own testimony, and from the undisputed facts in the case, your verdict should bp for the •defendant.”
Said counsel also excepted to the following portions of the ■charge as given:
“ If you find from the evidence in this case that on the twenty-eighth day of April, 1885, Mr. Peterson was driving a team of ordinary gentleness along the street or highway in the village of Fennville, and that at that time, and for several days previous, there was standing on the south side of said street or highway a box or freight ear on the company’s west side track at that place, and placed there by them, and that the north end of said car came up to or extended to the plank crossing usually used for teams to cross on, and if there was no other crossing for teams on said side track, and stood in such a position that teams could not cross on said planking without the wheels of the wagon or whiffletrees coming in contact with said ear, or the draw-bar or bumper thereof; •and if you further find that, in consequence of the position of said car, and its proximity to the main traveled part of the highway at that place, the team of PeteTson became frightened at said car, and became unmanageable, and shied' -and ran off of said planking over the rails of said crossing north of the planking, and continued to run down the street from such fright occasioned by such car, and that Peterson was exercising due care on his part, and doing all that ha ■could all the time to manage, control, and stop his team, and was unable to stop them, and that the injury did not result from any vice of the horse or horses which Peterson knew • or ought to have known, that Peterson was thrown from his wagon and injured, and that such injury was so caused by the team taking fright at said box car, — then I charge you, under such circumstances, the defendant in this case would be liable for all actual damages sustained by Mr. Peterson from injuries so received.”
“If you find from the evidence in this case that the box car stood upon or so near the usual traveled part of the crossing of the west side track that teams could not cross-said track on the usual crossing without the wheels or whiffletrees coming in contact with the end of said car, or with the bumper or draw-bar of said car, and that said car had stood there at one time for more than five minutes when Peterson tried to cross, then I charge you that the placing and leaving the car in that position, for that length of time, would amount to an obstructing of the highway so far as travel is-concerned.”
The first question to be determined, and the principal one,, is whether or not the case should have been taken from the jury, and a verdict directed for the defendant. It will be necessary, in disposing of this proposition, to state, in substance, the evidence upon the part of the plaintiff, as this-can only be considered in arriving at a conclusion. If the testimony introduced in behalf of the plaintiff was sufficient, to entitle him to go to the jury, the court did not err in submitting it. The weight of the evidence, and the truth of testimony disputed or contradicted on the part of the defense, is to be determined by the jury.
The testimony in plaintiff’s behalf tended to show that the-track of the defendant’s railroad crosses a public highway which constitutes the main street of the village of Fennville. Where it crosses, as aforesaid, there is a main track and two-side tracks in the highway. A box car had been left standing in the street upon the west side track some three or four-days. The crossing was planked, and the car stood so near the usual place of crossing that, if teams kept the usually traveled track, either the whiffietrees or the wheels would have hit or rubbed against the bumper or draw-bar of the ■ car.
The plaintiff was a farmer and fruit grower, and on the-day of the injury was driving a team of ordinary gentleness-hitched to a lumber wagon without a box, and plaintiff was, sitting on the hounds of the wagon. He was going after a load of long plank. When he came near to the railroad, he undertook to cross; and when he got near to this box car on the west side track, one of his horses, a young animal five years old, became frightened at the car, and began to “ sway off.” Plaintiff thought he could urge him across without danger. “ I had my doubts whether I could pass it without one wheel going off, but thought it possible that I might go over.” The horse finally gave a jump, and threw the other horse off from the planking between the open rails, and in that way crossed the three tracks. The jolting of the wheels upon the rails threw plaintiff from his seat, and the wagon ran over him, injuring him quite severely. The horses ran on. The horse took fright at the car before plaintiff reached the planking, and when he was eight to ten feet therefrom. The horse backed and sheered, and plaintiff slapped him with the lines, and then he gave a spring, shoving the other horse off the planking. He tried his best to get them back in the traveled part of the highway upon the planking, but did not succeed. The team came near turning round, but plaintiff managed to prevent their so doing.
Other parties testified of crossing at this same place while the car was standing in the same position with reference to the traveled part of the highway, and some of them had difficulty in passing by reason of their horses shying at the car, and others did not. The general run of the testimony was to the effect that a wagon could not be driven in the usual traveled track without hitting the bumper of the car, and that the plaintiff used every reasonable effort to prevent the accident.
The car in this case was within the limits of the highway, and had been there longer than the law permits if it obstructed the highway. How. Stat. § 3323, subd. 5.
The question whether it obstructed the highway was properly submitted to the jury. Young v. Detroit, G. H. & M. Ry. Co., 56 Mich. 430.
The defendant’s witnesses, seven in number, all testified that the car stood two feet from the planking. The counsel contend that, if the bumper or draw-bar came even with the planking, and did not extend over it, as would be the case if their witnesses were believed, the car might be an encroachment upon the highway, but not an obstruction of the traveled part of the way, and that, under the statute and the decisions of this Court, “the railway company had a right to use any portion of its side tracks within the limits of the highway for a train of cars which was awaiting the arrival of another train at a meeting point, so long as the traveled portion of the highway was left open and unobstructed;” citing Young v. Detroit, G. H. & M. Ry. Co. in support of this claim.
It is a sufficient answer to this contention that the evidence upon the part of the plaintiff tended to show that the bumper of this car extended over the planking, and it was for the jury to decide the disputed fact, which they did, finding against defendant upon this point.
But this freight or box car was not left temporarily “awaiting the arrival of another train at a meeting point;” and if the testimony of defendant’s witnesses is true, I think the car was then an obstruction to the highway within the meaning and intent of the statute. It certainly impeded the safe passage of teams across the traveled track
Much reliance is placed upon the decision of this Court in the case of Gilbert v. Flint & P. M. Ry. Co., 51 Mich. 488, and the court below, as has been seen, was requested by defendant’s fifth request to instruct the jury, in accordance with the doctrine of that case, that this car was “not a thing calculated to frighten horses of ordinary gentleness.”
This Gilbert Case can be distinguished from the one at bar for nearly the same reasons given in the opinion of Justice Champlin in Young v. Detroit, G. H. & M. Ry. Co., 56 Mich. 439-441.
In reference to the subject-matter contained in defendant’s sixth request the court said to the jury:
“ In this case, take into consideration all the circumstances surrounding that transaction, — take into consideration the character of these horses. Were they an ordinary gentle team, or was there something about this off horse that should have put a man specially on his guard? Did he have any reason to apprehend any danger from that horse, from his being tough-bitted, from his being a young horse, or from any other circumstances shown in the case? You are also to take into consideration the position the man was in; that he was sitting on the hounds or reach of his wagon. You should also take into consideration the actions of the horses as he approached that place. Now, would a man of ordinary prudence, with that horse, as he knew him or ought' to have known him, have driven with that wagon in that condition, ■sitting as he did, and attempted to pass that car as it stood there? If a man of ordinary prudence, under all the circumstances surrounding that transaction, would not have made that attempt, in view of the condition in which the horse was acting, and in view of all- the circumstances surrounding the transaction, and injury was there produced, then he was guilty of contributory negligence, and he would, not be entitled to recover, notwithstanding it was negligence, if you find it, in the railroad company to leave the car there.”
The law is fairly and fully set forth above, and the defendant could not reasonably ask any different instruction in this respect.
As to the first portion of the charge as given, objected to by defendant’s counsel, which was one of plaintiff’s requests, the court further said in connection therewith:
“ Of course, you understand me, in order to entitle Mr. Peterson to recover in any event in this -case, it is necessary that he should have been free from fault on his part contributing to the injury. I want that to be understood in connection with that request.”
I can perceive no error in this part of the charge.
It is claimed by the counsel for defendant that because the accident happened after the horses became uncontrollable by-fright, and would not have happened if plaintiff could have controlled them, that the unmanageable and uncontrollable' condition of the team was the direct cause of the injury, and that it cannot be imputed to the position of the box car. He cites Titus v. Northbridge, 97 Mass. 258, 265, to sustain this claim.
It is unnecessary to discuss the soundness of the doctrine enunciated in that case, as it does not apply here. In that case the horse was said to be attacked with a disease of the brain known as megrims, which rendered him uncontrollable, and while so unmanageable ran over an embankment.
The court were of opinion that—
“ When a horse, by reason of fright, disease, or viciousness, becomes actually uncontrollable, so that his driver cannot stop him, or direct his course, or exercise or regaiu control over his movements, and in this condition comes upon a. defect in the highway, or upon a place which is defective for want of a railing, by which an injury is occasioned, the town is not liable for the injury, unless it appears that it would have occurred if the horse had not been so uncontrollable. But a horse is not to be considered uncontrollable that merely shies or starts, or is momentarily not controlled by his driver.”
The accident in that case was not like the one at bar. The' fright or disease which rendered the horse unmanageable was not occasioned by the negligence or fault of the defendant, as here.
The better doctrine is, in my opinion, found in the case of Macauley v. Mayor, etc., of New York, 67 N. Y. 602, where Folger, J., questioned the soundness of the Massachusetts decision, and held that where the fright of the horse was occasioned by the fault of the defendant in the first instance, and in the absence of any evidence that the horse was unusually vicious or excitable, the horse was not to be considered uncontrollable because it shied, or was momentarily beyond the control of the driver. See, also, Smith v. Sherwood, 62 Mich. 159.
The case was properly submitted in this respect.
The court also correctly instructed the jury that, if they found that teams could not cross the railroad track on the usual crossing without the whiffletrees or wheels coming in •contact with the bumper of the car, then the leaving of such •car there was an obstruction of the highway.
There was, in my opinion, no error on the trial, and the judgment must be affirmed, with costs.
The other Justices concurred.
This statute forbids the obstruction of any public highway or street, by cars or trains, for more than five minutes at any one time. | [
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] |
Campbell, O. J.
In this case the controlling facts found are these:
In 1873, Thomas J. Hitchcock came to Michigan, leaving behind him, in New York, a wife, Caroline Hitchcock, and two minor children. The wife knew of his coming, and expected at some time to join him, but was never in Michigan. In March, 1875, Hitchcock bought a vacant lot, and subsequently built on it. Whether he began to build or not before his second marriage does not appear, but the house was finished thereafter.
In December, 1875, he, without divorce from his previous wife, married defendant, who married him in good faith, supposing him to be single. After the house was built, they moved into the house, and had children, who, with the parents, lived in it as their home till he died, when the second wife became owner by conveyance from Hitchcock, unless void by reason of the claims of the former wife to a homestead interest in it. None of the first family ever lived in the house, except that a son, aged then about 18, came and was received as a member of the household, until dismissed for ill-treating the children of the second wife.
It appears from the finding that the first wife never lived in Michigan, and, of course, never lived in the house; that Hitchcock never made or proposed to make it a home for their common occupancy; that it was intended for and actually occupied by the second wife and family, and so always ■continued.
The question, then, is whether it ever became the first wife’s homestead. That is the only question. ' That Hitchcock was guilty of wrong is clear enough. But whether the fact of his wrong-doing changes the character of the occupancy of the house is quite another question, which must be decided as a ■question of fact, and not as one of propriety. The inquiry is not what he ought to have done, but what he did.
The object of the Constitution is not ambiguous. It is to protect that dwelling which has been the actual home of the family from such disturbance as will make them lose its enjoyment. It is confined, by its language, to the property actually occupied as a homestead by a resident of Michigan; and, if the owner has a family, it is the actual home of that family which is protected from seizure by creditors. There is nothing in the statute which contemplates that a wife who has never lived on the premises, or claimed to live there, may, after her husband’s death, claim such an interest by relation as will avoid his dealings with property which he never meant should be the home of the absentee, however much he may have wronged her. The .statute which, after a husband’s death, secures rights to a widow, is confined expressly to resident widows.
Under our legal regulations, no imaginary or imputed intention can supplant the actual intent. It would be little short of absurdity to hold that Hitchcock could at the same time contemplate the occupancy of the house as the home of his second wife and also of the first. This is not pretended by any one. It appears expressly that it was the actual and continued home of the second wife and family, and that all the domestic arrangements and purposes were with this in view. The first wife never contemplated it as her and her husband’s joint home, and would, no doubt, have repudiated any such idea. After this marriage the first wife had no purpose of living with him at all. She never looked upon or used or sought it as a home, and never got the homestead rights of a surviving widow in it. The only right now set up is the right to have the disposition of it made by the-husband avoided for want of her signature.
We have held, and I think rightly, that, where a wife has-once had her home with her husband in his dwelling, he cannot deprive her of that vested right by driving her out. But here the home interest never vested. JThe law was made to protect actual homes, and not mere possibilities, — still less to-change by theory into a home that which is actually the reverse. In the present instance the second wife was made so in good faith, and had some natural equities in the premises which would not probably have been legally recognized without the conveyance. But if the case had been worse, and the house occupied by the husband in a life of shame and indecency, it would, I think, be a very singular rule of law which would protect it as a homestead, and treat it as a home, and especially the home of the absent wife. The occupancy is one which she actually repudiated, and which, in the absence of any showing, she wloud be presumed to repudiate, and she could not decently do otherwise. But to hold it to have been her home in the eye of the law, when she purposely and very properly determined to reside elsewhere, is not, I think, to carry out the great and worthy purposes of the homestead laws.
It must be remembered, not only that the character of any property as a homestead depends on intention, but that it may be entirely destroyed by a removal of residence. There is nothing in the law to prevent such removal at any time, and after it the property stands, like any other property, liable to sale or any other disposal by the owner at his pleasure. Under our laws the sale by a husband whose wife is non-resi dent carries the property free from any right of dower. Actual non-residence in such case, in spite of the marital relation, cuts off any control over the sale of a complete title. There is as much reason for the confinement of the homestead law. Marital rights are mutual. The State of Michigan, had Hitchcock never married defendant, could not have aided him in compelling his wife to join him, or exercised any control whatever over the persons or conduct of the absent children. It might divorce the parties for the wife’s desertion, but it could not regulate their family relations while not divorced. Until divorced, if the first wife could, in the present instance, prevent the sale of the house, she could just as well do so while actually doing all she could to make a family home impossible. Her merits in the one case, or demerits on the other, would not count at all in the decision. The law would be grossly tyrannical if it tied the husband’s hands in the one case at least, and it cannot be possible that such consequences could have been designed by the Constitution. It was designed to protect those who had subjected themselves to its laws, and acted in reliance on them, but not to treat as homes what are not homes, or give powers to non-re'sidents which could not, under any circumstances, be of any use to them personally.
I think the judgment should have been given for the defendant, and that it should be reversed, and so . entered, and the record remanded.
Sherwood, J., concurred. | [
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Morse, J.
The parties to this suit are farmers in the ■.township of Hastings, Barry county. Their farms are sep arated by a highway, running north and south, complainant’s premises being on the east side, and defendant’s land on the west side, thereof.
The complainant seeks to enjoin defendant from further digging and tiling any drains on his farm, by which the water being or falling on his land will be conveyed to and upon the premises of complainant.
His bill alleges in substance that the premises owned and occupied by him are of the value of $5,000; that the highway is his west boundary line; that south of his house and farm buildings there is a field of wheat of about fourteen acres, nine acres of which is lowland; that the land of said defendant, upon the opposite side of the highway, is above and on a higher plane than this lowland of complainant; that upon defendant’s premises are several low places or sags, towards which the water from the rain-falls and melting snow runs naturally by surface descent; that all the water from rain and melting snow which falls upon at least 80 acres of land finds its way into said low places, some of which are more or less swampy; that the lands of said defendant, including these sags, are situated upon a higher grade than the- lands and wheat-field of complainant; that in times of very high water some of the water falling and accumulating on defendant’s premises runs over and under the highway and upon complainant’s land, but that, ordinarily, no damage is or would be done, as the water passes off by evaporation and' percolation in such a manner as not to injure the premises of complainant; that there is no natural channel or run for the water that falls from rain and accumulates from melting-snow on defendant’s premises from said premises to complainant’s, and if any water finds it. way across the highway from defendant’s to complainant’s premises, except in cases of great rains and very high water, it is only by the process of percolation through the soil, and in a manner so gradual and slow as to do no material damage to complainant; that there; is no natural channel or outlet for the escape of the waters which fall upon complainant’s premises, but that all the waters from rains and snow falling on said wheat-field pass away by evaporation and percolation; that defendant, at the time of the filing of the bill, was engaged in digging and tiling a drain from his low lands and swampy places, so as to convey such water on complainant’s premises, and especially on his said 14-acre wheat-field, which will result in the destruction of the growing wheat and complainant’s great injury; that defendant can as easily drain off his waters in another direction, without any damage to complainant’s premises, and that defendant’s action in the premises is taken for the purpose of willfully and maliciously injuring complainant.
Defendant’s answer avers that he has lived on his farm for more than twenty years, during all of which time a ditch or drain has been maintained by him, running from his premises across the highway to the premises of complainant and his. said wheat-field. This water-way existed before complainant, owned or had possession of his said premises.
Complainant has helped' to support, maintain, and keep said ditch in repair, and has laid stone along the highway to keep it open. Such ditch has never injured complainant’s premises, or caused him damage. The “wheat-field” is-low and swampy land, of sniall value and not productive. It was wild land when complainant purchased it, and, in clearing it, he burned off the surface to a depth of 12 or IS inches.
Defendant denies that he was constructing a drain when the suit was commenced, but admits that he had been laying tile in the channel of the ditch for the purpose of covering over the ditch. This tiling did not increase the quantity of water which would flow in the ditch, but improves the value and the appearance of defendant’s land.
He also denies the allegation in the bill that his land can easily be drained in any other direction; an 1 further denies any willful or malicious conduct or intention upon his part in the premises.
The answer, by a demurrer clause, makes' the ■ point that complainant has adequate remedy at law for any and all the grievances alleged in his bill.
The proofs in the cause were taken in open court, and the court below granted the relief asked, perpetually enjoining the defendant—
“ From maintaining any ditches or drains by which the surface water from rains or snows falling upon the land of defendant will be conducted to and upon the land of complainant, or conducting such water by means of tile drains and ditches to and upon said premises of said complainant.”
The facts disclosed by the proofs, as we find them, are as follows:
In a state of nature, the wheat-field or lowland of the complainant, which he avers was damaged by the drainage of defendant’s premises, was a tamarack and whortleberry swamp, containing from seven to nine acres, and was the natural receptacle of the surface water, from rains and melting snows, accumulating upon the lands of the defendant, and running through a ravine or gully on defendant’s premises, and across where the highway now is, to said swamp. It also received more or less surface water from the higher lands of complainant. It is not easy of drainage, and water would stand upon it in the spring and fall, and during high water times, to a depth of from two to five feet, and remain until it disappeared by percolation and evaporation.
Complainant commenced clearing up this swamp some 12 or 13 years before the commencement of this suit. He tried to drain it, but has not been successful in such effort.
For 25 years and upwards there has been a sluice maintained in the highway at the lower point of this ravine for the water flowing therein to pass through upon the lands of complainant. It was there when he bought his farm, and he has acquiesced in it and helped to maintain it. The surface •waters accumulating naturally upon defendant’s land, and the natural overflow of the small sags or basins thereon, have always flowed through this culvert and upon the land of complainant.
The flow of this water during these years has been accelerated somewhat by plowing a furrow at first in the ravine, and by an open drain with stone for the last 10 years, without any serious complaint on the part of complainant, or any preceptible damage to his premises.
We do not think this ravine can be termed a natural watercourse. It is simply an outlet for surface water at certain ■seasons of the year. It has no defined bed or channel, with banks and sides. It has no permanent source of supply, and no living or spring water ever courses through it. It is therefore not governed by the well-settled rules applying to natural streams. No right can be claimed by defendant to run this water upon the land of complainant, or to drain his sag-holes into this ravine, because it is a water-course. He must therefore be governed by the law relating to the flow and disposition of surface water, unless, by the long acquiescence of complainant, he has acquired an easement.
It was held in Boyd v. Conklin, 54 Mich. 583, that, without regard to the law as to the flow of surface water, an easement might by acquired by prescription, by which the water collecting upon the land of one person must be allowed to overflow the lands of an adjacent proprietor. Under this holding we have no doubt of the right of defendant to discharge the surface water of his land through this ravine, where it ran naturally, and has been permitted to run for over 20 years by the complainant, and as it has so run for that number of years. See, also, Earl v. De Hart, 12 N. J. Eq. 280.
The question still remains as to the right of the defendant, by digging ditches or tiling drains, to empty out the sag-holes into this ravine and upon the lands of the complainant to-his damage.
The defendant would have the right, in the interest of good husbandry, and in the good-faith improvement and tillage of his farm, to fill up these sag-holes, so that no water would accumulate or stay in them, even if the water arising from rain-fall or melting snows should thereby, in natural processes* find its way into this ravine and upon the land of complainant, and incidentally increase the flow thereon. Cooley, Torts, 577; Washb. Easem. (3d ed.) 454; Goodale v. Tuttle, 29 N. Y. 467; Pettigrew v. Evansville, 25 Wis. 229; Hoyt v. Hudson, 27 Id. 656; Bangor v. Lansil, 51 Me. 521; Flagg v. Worcester, 13 Gray, 601; Livingston v. McDonald, 21 Iowa, 160, 174.
But he cannot, by artificial drains or ditches, collect the waters of stagnant pools, sag-holes, basins, or ponds upon his-premises, and cast them in a body upon the proprietor below him to his injury. Cooley, Torts, 580; Livingston v. McDonald, 21 Iowa, 160; Butler v. Peck, 16 Ohio St. 334; Martin v. Riddle, 26 Penn. St. 415; Pettigrew v. Evansville, 25 Wis. 223, 227.
The evidence shows but three sags or basins upon the land of defendant, the waters of which overflowed into the ravine. Before the land was cleared and cultivated, and while they were filled with logs, brush-wood, and bushes, they covered more space and held more water than afterwards. Clearing them out, and cultivating the land about them, has filled and dried them up to a more or less extent. But the three together are estimated by the most of the witnesses not to-have contained more than from one to two acres in their greatest capacity. The water standing in them, after the overflow had run off, would average less than two feet in depth. One of these sags had been cleared, drained, and cultivated for 20 years before the commencement of this suit, and has always been kept dry by cultivation and the occa sional turning of a furrow into the ravine. Crops have been raised, upon it every year. This is the low place spoken of by the witnesses as being opposite the log house on complainant’s land.
We.do not think, under these facts, that the complainant, can complain of the drainage of this spot by the defendant,, in the natural and usual course of husbandry; and we cannot, find from the proofs that such drainage has been of any perceptible damage to the premises of complainant.
The other sags are described as follows: A low springy or mucky place, west of the barn on defendant’s land, being in extent about five or six rods long and three or four rods-wide; and the other, a hole containing from one-half acre to-an acre of land, being two and one-tenth feet deep. It is admitted that the overflow of these basins naturally ran into-the ravine.
From this sag west of the barn the ravine heretofore mentioned ran down to and upon the lowland of complainant. The other sag or hole was in a lateral direction from this-main ravine; but a natural depression ran from it into the-main gully, through which its overflow was emptied.
The defendant, at the time of the service of the temporary-injunction in this suit, was digging out the ditch in the maim ravine, and tiling it, as he claims, so that he could cover it and cultivate over it. He had also, before and about that time, deepened the outlets or ravines from these sags so as to-carry out all the water in them. And this has been of some damage to complainant’s land, and, if allowed to be persisted in, will be a continuing damage indefinitely. The evidence shows more water upon complainant’s land, and that some water remains there longer than it did before it received the water held in these basins. Though the amount of damage may not be easily perceived or estimated, the natural consequence of opening these sags and lettiDg upon this lowland of complainant their waters, which otherwise would! have been retained upon defendant’s premises until disap_ .pearance from evaporation and percolation, is to deposit upon the premises of complainant surface water of defendant which complainant in law is not bound to receive. Defend..ant cannot, even in the interest of good husbandry upon his farm, thus transfer the water of his cat-holes to the premises -of his neighbor.
The law does not authorize one farmer, even for the purposes of cultivation and tillage of his premises, to dry up a pond on his place by depositing the waters thereof upon the premises of another, thereby making such other tract more • difficult to redeem. One has a right to ditch and drain and dispose of the surface water upon his land as he sees fit; but he is not authorized to injure, by so doing, the heritage of his • neighbor. He cannot collect and concentrate such waters, and pour them through an artificial ditch in unusual quantities upon his adjacent proprietor. Kauffman v. Griesemer, 26 Penn. St. 407; Barkley v. Wilcox, 86 N. Y. 148; Noonan v. Albany, 79 Id. 470; Adams v. Walker, 34 Conn. 466.
Since the complainant has undertaken to reclaim his low- ' land or swamp, grass and garden crops have been grown upon ; it, and, although the evidence tends to show that the soil has not the necessary constituents' for growing good wheat, ■ there is no doubt but it is capable of use and cultivation, which capability will increase with such use. He has a plain . and equitable right to so use it, and is not required to hold it as a basin for any more of the surface water of defendant than would naturally flow through the ravine, to which fiowage the defendant has gained an easement. The waters not naturally overflowing from the two sags must be held •there by defendant, or disposed of in some way not to the •..injury of complainant.
But we think the injunction, as it now stands, is too abroad.
The decree of the court below will be so modified as to-perpetually enjoin the defendant from emptying the waters-of these two sags, other than the natural overflow, by ditches, tiled drains, or otherwise, into this ravine and upon the lands-of complainant.
We shall award no costs to either party in this Court.
Complainant will recover costs in the court below.
The other Justices concurred. | [
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] |
Campbell, C. J.
Plaintiff sued defendant, as owner of a scow, for seaman’s wages. The defense was that the father of plaintiff was in possession under a parol contract of purchase, with plaintiff’s knowledge, and defendant for that reason was not liable. The circuit judge took the case from the jury entirely, and therefore it must be determined on plaintiff’s showing.
Plaintiff gave testimony that his father, who was captain, employed him, and gave him to understand that both defendant and the vessel were to be looked to for his wages, which would certainly be within the master’s province as authorized to employ seamen. There was testimony which tended to show that the father supposed he had an agreement which gave him as much time as he chose to buy and pay for the vessel; further, that he paid all the other seamen but his son out of the vessel’s earnings/ and paid the entire balance each year, as he got it, to defendant, with that view. There was testimony indicating that plaintiff had been informed of his father’s expectation, but it is not certain that he understood in what shape the supposed contract was.
It appears, further, that defendant stood <as owner at the custom-house, and signed the usual papers for her employment.
In March, 1884, defendant conveyed the vessel to one Runnels for a consideration of $2,799. The captain, plaintiff’s father, was still in commission, and not informed of the sale, which was not recorded for a year after it was made. He swears he had paid $4,000 upon the vessel.
We do not feel disposed to discuss how far a verbal contract or understanding, such as Capt. Bonnah refers to, was binding on anybody. It cannot be claimed that, as he states it, defendant could repudiate it, if valid, and keep all the money which he did keep. By the employment of plaintiff he had a valid claim against defendant, unless his father was in under an independent control, and defendant out. But, as a matter of fact, defendant received all the earnings, including the money which should have been paid plaintiff, and by his sale to Runnels put it out of his power to carry out the only contract which stood — if any existed — between him and the claims of plaintiff. He cannot repudiate the contract, and hold plaintiff cut off by it, and retain the earnings.
The policy of the law is designed to protect seamen from fraud and oppression, and relieve them from unfair advantage. By section 4535 of the Revised Statutes of the United States, it is declared that—
“No seaman shall, by any agreement other than is provided by this title, forfeit his lien upon the ship, or be deprived of any remedy for the recovery of his wages to which he would otherwise have been entitled; and every stipulation in any agreement inconsistent with any provision of this title, and every stipulation by which any seaman consents to abandon his right to his wages in the case of the loss of the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative.”
If this statute applies, and we are inclined to think it does, there can be no doubt of plaintiff’s right to recovery. But, whether it applies or not, the case shows that there was a distinct employment on regular wages, and that defendant received and kept the vessel’s earnings, and has not recognized any binding contract which would put him on any different footing from any other owner. Moreover, the captain was his agent, and any agreement which would pay over plaintiff’s wages to defendant for no valuable consideration could not be valid or enforcible against a seaman.
In our opinion, plaintiff made out a case, and should have recovered. The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred.
The defendant gave notice that the plaintiff’s father was the owner of the scow under a contract from defendant, and had the sole possession, charge, management, and control of the boat, and received to his own use her entire earnings, the title being in defendant as security for the purchase money. | [
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Campbell, O. J.
Plaintiffs replevied from defendants certain teas sold October 16, and November 24, 1884, to the firm of Kirby, Miner & Agnew, the replevy being based on the alleged fraudulent character of the purchase, which plaintiffs claimed a right to rescind, inasmuch as no bona fide purchaser had in the meantime obtained rights.
The court below, holding that the fraud must have existed at the time of the sale, shut out testimony of some subsequent dealings and admissions as not tending to prove such fraud.
The court also, after request to make special findings of fact and law, made only very general findings, and made no findings of law.
A brief statement of the facts supposed to throw light on the controversy, as proved or sought to be proved, will be sufficient.
Prior to October, 1884, defendants Miner and Agnew had been in business at Corunna, in Shiawassee county. In the beginning of that month they started in business at Detroit, in partnership with Alexander L. Kirby, as a firm of Kirby, Miner & Agnew, for the sale of teas and other grocery articles of a similar character. - The partners were to put in $2,500 in equal amounts, which was not completely done. On the fourth of December, 1884, the firm dissolved, and Miner and Agnew agreed to pay all the debts. On the third of December a chattel mortgage was made to Benjamin Miner and Mary E. Agnew, of Corunna, for $1,600, which was, on the next day, December 4, discharged of record, and declared satisfied. This transaction is not explained, and is claimed to have been a fraud. On the eleventh of December a chattel mortgage covering the personal property and entire assets of the firm was made to Albert T. Nichols, of Corunna, for $2,201, to secure several notes aggregating that amount; the first, for $400, being dated September 26, 1884, at 3 months; one October 7, 1884, at 90 days, for $150; one October 9, 1884, at 60 days, for $1,150, marked “Duplicate;" one December 2, 1884, at 30 days, for $200; one December 5, 1884, at 30 days, for $101; and one December 10, 1884, at 90 days, for $200.
On the same day, December 11, 1884, a general assignment was made to Frank D. Andrus. There is nothing in the findings to show whether these were in fact simultaneous. It is claimed that the chattel mortgage was given at the same time to create a fraudulent preference. No testimony was given to show the existence or good faith of the Nichols claim, and the testimony indicated that the assets mortgaged left nothing over for the assignment to cover. Nichols was declared a preferred security holder, and will absorb all the assets, if successful.
It does not appear that any false representations in fact, or any representations at all, were made when plaintiffs sold the teas. Kirby bought them, and says that no representations were made to him when he went into the firm; but he supposed all was as it should be, and never knew of the Nichols or other claims. The case, therefore, does not stand on positive representations.
The only question seems to be whether fraudulent intent can be shown by the general history of the transactions of Miner and Agnew, subsequent as well as previous to the sale.
It appears, in fact, that, without Kirby’s knowledge, if the Nichols claim is a real one, Miner and Agnew, during the existence of the firm, created undisclosed liabilities to a large extent in their joint name to Nichols, and that just before the dissolution they gave a firm chattel mortgage on all the firm property to persons who bear the same name for $1,600, which was not a firm debt, and was released when Kirby went out the next day, and is claimed to have been entirely fraudulent; that, instead of carrying out the dissolution agreement, and paying the firm debts, they applied the whole of the assets towards paying their own obligations, if they were obligations, and misappropriating assets entirely, if they were not, and made an assignment when there was practically nothing left to assign.
We are not prepared to say that it was not competent to show all these transactions, with a view of establishing that their whole Detroit business was a dishonest scheme. If it was, then the purchases made in pursuance of it would be affected by the same fraudulent conspiracy. The rulings of the court below rendered it unnecessary for defendants to explain their dealings, which they might, perhaps, have done. But we think there was an assumption that went too far in favor of them. It is unquestionably true that fraud must have existed when the teas were sold, in order to avoid the sales. But it is quite possible that fraud can be made out by proof of subsequent acts throwing light on what was done before the dealings assailed.
The witness Smith, who sold the teas, testifies that, when he heard of the mortgage of December 3, he saw Miner and Agnew, and had a conversation, in which they told him. they had no other indebtedness than this mortgage, which had been canceled. This testimony the court struck out as not bearing on the facts existing at the time of the sale, and, by the form of the ruling, shut out all subsequent acts as irrelevant and not competent.
The immediate tendency of this testimony was to prevent •any action by plaintiffs to protect themselves, as they might have done, against fraudulent disposal of assets. It was untrue, if the Nichols debt existed. And we think that, in ■connection with the recent chattel mortgage, if that was unfounded, and with the other series of undisclosed notes, which, if known, would have put an end to any means of ■credit, these matters might have been coupled with the other facts without impropriety.
The court below evidently considered that fraud could not be made out by the assistance of subsequent doings, and must have been confined to-misrepresentations made at or before the sale. Having made this ruling, it must be assumed his ultimate conclusion was based on it, and we cannot conclude that other testimony might not have changed the result, or that no prejudice could result from the failure to find more specifically the facts and law, which plaintiffs had requested.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred.
See Ross v. Miner, 35 N. W. Rep. 60. | [
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] |
Morse, J.
On the first day of August, A. D. 1881, the plaintiffs executed to the defendant a mining lease of the south-east quarter of section 28, township 47 north, range 26 west, in the county of Marquette.
The lease provided that the premises were leased—
“Eor the purpose of exploring for, mining, taking out, •and removing therefrom the merchantable shipping iron ore which is, or which hereafter may be, found on, in, or under said land: Provided, That said party of the second part shall have the right at any time to terminate this lease, by giving said first party three months’ notice in writing personally or by mail, and thereupon this lease shall terminate, and all arrearages and sums which may be due hereunder up to its termination shall be paid in full by said second party to ■said first party.”
The second party was authorized to erect buildings and -.machinery on the premises, which became real estate; but at the termination of the lease, if arrearages were paid, snch buildings and machinery eould be removed by second party within 60 days. He had the right, also, to cut timber for fuel for mining purposes, and all other purposes connected therewith. He was to pay a royalty of 50 cents per ton of 2,240 pounds on all iron ore removed from said premises during the lease.
“Fifth. Payments of such royalty shall be made quarter yearly, on or before the fifteenth day of November, February, May, and August, for the iron ore removed from said premises during the three calendar months immediately preceding, to such person or party as the parties of the first part, their heirs, executors, administrators, or assigns, may designate.”
“Eighth. The said party of the second part shall, on or before January 1 following the levy thereof, pay all taxes and assessments, ordinary or extraordinary, general or specific, which may be assessed on said lands, iron ore, or improvements on said lands, and furnish, at time of payment, duplicate receipts thereof to said first parties.”
“Ninth. Said second party shall mine and remove at least five thousand (5,000) gross tons within one year from the first day of August, A. D. 1881, and shall mine and remove at least eight thousand (8,000) gross tons the second year,— that is, between the first day of August, A. D. 1882, and the first day of August, A. D. 1883, — and ten thousand (10,000) gross tons each and every year thereafter during the continuance of this lease, or, in case such quantities are not mined and removed, the said party of the second part, his executors or assigns, shall nevertheless pay royalty upon said minimum amount, to be paid pro rata quarter yearly, as aforesaid; but ore paid for in any one year, and not mined, may be credited on. any excess of said minimum amount mined and paid for in the year next succeeding, but not thereafter. Said second party further agrees to diligently and continuously prosecute mining operations on said lands during the existence of this lease, and to mine and remove as great a quantity of iron ore in each and every year in excess of said minimum amount as can be profitably mined and removed.”
“Twelfth. The right of possession of said lands not occupied by said -second party for mining purposes shall always remain in said first parties, their heirs or assigns, who shall have the same right to use and occupy said lands as if these presents were not executed, whenever the same does not evidently or manifestly interfere with the mining operations of said second party.”
The term of the lease was for 20 years from and after its date.
We have set forth above those portions of the lease necessary in the determination of this controversy.
The plaintiffs in this action sued the defendant upon a special count in assumpsit for the rent or royalty from the date of the lease to December 18, 1882, and under the common counts for the taxes upon the premises which the defendant failed to pay, and which plaintiffs were obliged to pay to save said premises from sale.
Upon the trial in the court below, the plaintiffs introduced evidence tending to show that the defendant accepted the lease, and entered into possession of the lands at its date, and began at once to search and explore for iron ore, and continued in possession until about the first day of June, 1882. The defendant then ceased exploring, claiming that he had made diligent search for iron ore, but was unable to find any, and he refused to p.ay any rent, royalty, or taxes whatsoever; but he did not surrender the lease, neither was the same forfeited by the plaintiffs, until the eleventh day of December, 1882. Plaintiffs also showed the amount of the taxes for the year 1881 upon the premises, which defendant, refused to pay, and which they paid, to be $160. They further testified that the amount due them for royalty, under the ninth clause of said lease, was $2,000.
The defendant, to maintain the issue on his part, introduced evidence tending to show that, after receiving said lease from plaintiffs, he immediately entered on said lands, and commenced exploring for iron ore, and in the course of one year expended the sum of $14,000 cash in such explorations, but was unable to find any merchantable iron ore, or any iron ore having any value, on said lands; and that, so far as he could discover, no mine or mines of iron ore existed •on said lands, and that he had removed no iron ore whatever from said lands, for the reason that he could not discover .any iron ore on said lands.
The defendant also introduced the testimony of skilled miners who had examined said land since the commencement ■of this action, and they testified that in their opinion the •said defendant had expended as much money on said lands in exploring for iron ore as was necessary, and that in their •opinion no mine of iron ore exists on said lands.
The circuit judge instructed the jury that the lease was intended hy the parties to be a lease of this land for the purpose of mining merchantable iron ore, and that it was in the •contemplation of the parties that there was such merchantable iron ore in paying quantities upon the property in question.
“ The defense, in order to avoid the payment of fifty cents per ton upon eight thousand tons provided for in the second year, must prove to you that there was not merchantable iron ore upon that property in sufficient quantities to make it pay; in other words, he must prove to you that there was not a mine of that description upon the property in question.”
“ I think I have said — if I have not, I will say now — that the defendant in this case was bound, under the terms of this •lease, to go on and work upon that property, and conduct the explorations, — to use endeavors to find what is there, —in the usual, customary mining manner. He was bound to ■do all that good mining would require in order to obtain- the results contemplated by the lease. If he has done so, and no good ore was found by virtue of such exertions, then the plaintiffs in this ease could not recover; that is, on that branch of the case.”
He also instructed them that the defendant was liable for the taxes.
The jury found for the defendant on the royalty, but gave •a verdict for the plaintiffs for the taxes, assessing their damages at $168.41,
Two bills of exceptions were settled in the cause, and bothi parties come to this Court on writs of error. The plaintiffs claim they are entitled to the royalty as a matter of law, and. the defendant contends that the court erred as to the taxes.
We think the court was right in both instances.
W6 consider the lease clearly one by its terms for mining iron ore. The plaintiffs, by the twelfth section of the lease, expressly reserved to themselves the use and possession of the-land for every other purpose; and the right to cut timber on. the land wns also expressly restricted to such timber as might-be wanted for mining purposes. Being such a lease, if, upon diligent search and exploration, no iron ore was found, and none exists in or under the soil, the defendant cannot be held liable for the royalty upon such ore. Cook v. Andrews, 36 Ohio St. 174; Brick Co. v. Pond, 38 Id. 65; Reed v. Beck, 66 Iowa, 21 (23 N. W. Rep. 159).
But the tax clause of the lease stands upon a different, basis. The taxes he agreed to pay were not those that might be assessed or levied upon the iron ore alone, but upon the-whole property, — the land and improvements thereon as well as the ore. Having retained possession of the, lands while exploring, and until December, 1882, we think the defendant-was liable for the taxes of 1881.
It is also equitable that he should pay them. While he was in possession, no other person could test the lands for iron ore, and he was authorized to cut and probably used timber belonging to plaintiffs for fuel, and in the erection of machinery upon the premises. He cannot complain that he should pay the taxes upon his own improvements upon the premises, which were made by the contract part of the real estate, but which he could remove, or upon the lands which he had the privilege of testing for ore, without any other payment for rent or royalty if he failed to find ore.
The judgment is affirmed, with costs.
The other Justices concurred. | [
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] |
Ghamplin, J.
Plaintiff commenced an action of assumpsit •in justice’s court upon a bond given by the defendants in an attachment suit, wherein Rudolph Seifert was plaintiff, and Herman O. Hahn was defendant.
The plaintiff declared orally upon the bond given in the •attachment suit, and assigned as a breach that the plaintiff had failed to recover judgment in that suit, and claimed ■damages of $100.
The defendants pleaded the general issue, and gave notice that they would offer in evidence the docket of the circuit court commissioner and the order dissolving the attachment, and that they would prove that Rudolph Seifert, plaintiff in that suit, appeared before the, justice, and prosecuted said writ of attachment to judgment, and recovered judgment against Herman O. Hahn, defendant therein, in the sum of $78 and costs.
Upon the trial before the justice defendants obtained judgment, and plaintiff appealed, and upon trial in the circuit court a verdict was directed for the defendants, and the case is before us upon writ of error.
It appears that some years prior to August 16,1886, and at that time, plaintiff was engaged in the drug business at Lansing. On that day a constable levied a writ of attachment sued out by Rudolph Seifert upon his stock of goods, took possession, and locked him out. The officer remained in pos •session of the store and stock of goods four days, during which time the plaintiff was excluded. His average sales ■during several weeks before and after the time when his stock was held under the attachment was $12.50 per day, and his profit on such was 40 per cent. He applied to a circuit court commissioner, and obtained a dissolution of the attachment •on the twentieth of August, and his property was restored to him. His attorneys charged him $15 for their services in procuring a dissolution, and he paid $2.50 commissioner’s fees.
Hahn appeared in the attachment suit upon the return-day •of the writ, and confessed judgment for the amount of Seifert’s claim, and judgment was rendered thereon. The confession of judgment is in due form, and was entered upon a •different docket from that in which the attachment suit was entered, and a question is raised that the judgment so rendered was not in the attachment case, but was an independent proceeding.
The justice testified that the parties appeared before him •on the return-day, when Mr; Dodge, the attorney of Seifert, said that Mr. Hahn had agreed that the account or claim was .all right, and that he would confess judgment for the amount; that Mr. Hahn said: “Yes, it is all right; ” and thereupon he took the docket having the forms for confession of judgment in, and made the entry as it appears upon the docket; that there was no formal declaration; all there was, the .amount of the claim was stated, — the amount of the claim was agreed upon between the parties.
He was asked:
“ Q. A judgment was asked for that amount on the part •of the plaintiff, was there not ? A. Yes, sir; and Mr. Hahn said that he would confess that; and, instead of going on under this attachment suit on this docket, which would have made a good deal more work, I turned back to the other docket, where there is a blank confession of judgment.”
He also testified that the docket entries, although made after the commencement of this suit, are according to the actual facts as they occurred. These entries connect the entries in the two dockets as the proceedings in the attachment suit, and were sufficient, we think, to establish that the judgment entered was a judgment in the attachment suit.
It is also contended by counsel for the plaintiff that where a suit is commenced by attachment, and the defendant summoned according to the command of the writ, and then the attachment is dissolved, the suit is no longer an attachment suit, and. a judgment rendered therein is not rendered in the attachment suit within the meaning of that term as used in section 6838 of Howell’s Statutes, requiring the bond to be conditioned to pay the defendant all damages and costs he may sustain by reason of the issuing of the attachment, if the plaintiff shall fail to recover judgment in such suit, and consequently he is entitled to his remedy upon the bond given under the above section.
We cannot give the statute this construction without interpolating into the section the words " or if such attachment shall be dissolved.” The condition is statutory, and the suit-referred to is the suit in which the bond was given; and, if the suit is prosecuted to judgment, the condition of the bond is satisfied. We agree with plaintiff’s counsel that the statute ought to be so amended as to afford a remedy upon the bond in cases where the attachment is -dissolved.
The judgment of the circuit court is affirmed.
Campbell, O. J., and Sherwood, J., concurred. Morse, J., did not sit.
August 23, 1886.
See Churchill v. Goldsmith, 64 Mich. 250; Kingsbury v. Borland, 31 N. W. Rep. 620; Langtry v. Wayne Circuit Judges, 36 Id. 211. | [
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] |
Sherwood, J.
The plaintiff brings ejectment to recover 80 acres of land lying in the township of Hersey, in the county of Osceola.
The plaintiff claims under two tax deeds made by the Auditor General upon sales of the land for the taxes of 1875 and 1876, assessed and levied under the law of 1869, and the amendments thereto.
The defendants Thomas W. Palmer and Lizzie Palmer claimed title from the government through sundry mesne conveyances, which they obtained previous to 1875, since which time they have continuously claimed title to the said land under said.conveyances down to the present time; and defendant Goff is in possession of the landj and was so in possession of the same for six months prior to the commencement of this suit, as the tenant of the other defendants; and they all claim that the tax titles under which the plaintiff seeks to recover possession of the property are invalid.
The cause was tried in the Osceola circuit, by jury, before Hon. J. Byron Judkins, circuit judge, who at the close of the testimony directed a verdict for the plaintiff, upon which judgment was entered, and the defendants bring the case into this Court for review.
It appears from the stipulation of the parties in this case that the defendants are in possession of the property, and were at the time suit was commenced, claiming title thereto derived under a patent issued by the United States. It is unnecessary to consider their claim further, until the title of the plaintiff has been examined.
The testimony shows, without contradiction, that the Palmers sold the land, by contract, in 1872, to one John Baker, and that his interest under the contract, after several transfers, was purchased by George Sample, who afterwards took a contract of purchase of the same land from the defendants Palmer. Sample took possession of the land about the first •of May, 1874, and about the fifteenth of June commenced work upon the land. In the fall of the same year, under an arrangement with his brother, John Sample, three or four acres of the land was put into wheat. In the month of April, 1875, the wheat was growing upon the land, and George himself worked thereon, and had men at work upon it clearing it up and making rails for fencing. At the time Baker owned the land, a log house was erected thereon, .standing partly in the highway when it came to be laid out. A lot on the north-west corner of the land was fenced in.
■ In 1875 and 1876 there was 10 acres cleared and partially improved on the land. During this time George made his home with his father or brother Albert, both of whom lived within a half mile of the. land, and had had his home with them for years previous. He also paid the taxes on the property for 1874, and worked out the highway taxes for 1875, and ■caused them to be worked out in 1876, and at this time it was his intention to make a home for himself upon this land.
The land for the years 1875 and 1876 was assessed as nonresident.
Upon the foregoing facts, the defendants claim that the land should have been listed, for the years 1875 and 1876, upon the resident list. We think this position is correct, and the authorities cited by counsel for defendants fully sustain this view.
The provision of the statute upon that subject is as follows:
“All personal estate within this State, except in the cases where other provision is made by the third and eighth sections of this act, shall be assessed to the owner in the township where he shall be an inhabitant on the second Monday of May, and all resident real estate to the person occupying it on that day, unless the same shall be given in by some other person for assessment to him.” How. Stat. § 1007.
We think the facts show the defendant an occupant of the land in 1875, under the decision of Tweed v. Metcalf, 4 Mich. 586.
It will be noticed that the “loss or destruction” of the first deed, and “its date, if possible,” are facts required by the statute to be recited in the second deed. They are the facts which must exist before a second deed can be lawfully made, or have any effect as a conveyance; and a second deed, not containing these statements and statutory requirements, is no evidence of title, and the one offered in this case should not have been admitted in evidence. Cooley, Tax. (2d ed.) 516; Grimm v. O’ Connell, 54 Cal. 522; Wiggin v. Temple, 73 Me. 380; Atkins v. Kinnan, 20 Wend. 241; Boardman v. Bourne, 20 Iowa, 134; Smith v. Hileman, 1 Scam. 323; Williams v. McLanahan, 67 Mo. 499; Hubbell v. Campbell, 56 Cal. 527.
The title for the taxes of 1875 is also invalid, for the reason that the tax levied was in excess of the amount authorized by law. The excess charged against the land in question was small, — only between five and six cents, — but, under our decisions, it is fatal to the title.
There was also an unauthorized tax of $60 levied upon the lands in the school district in which the defendants’ land was located, and a ratable portion of which was assessed against defendants’ lot, and which constituted a part of the sum for which the defendants’ property was sold for tax of 1876. This rendered the plaintiff’s tax title, based upon the sale for taxes of that year, void. Cooley, Tax. (2d. ed.) 339; Moser v. White, 29 Mich. 59; Maxwell v. Paine, 53 Id. 30; Williams v. Mears, 61 Id. 86.
It is unnecessary to consider the case further. The judgment must be reversed, and a new trial granted.
The other Justices concurred.
Sections 6 and 35, tax law of 1885, provide for the assessment of real estate to the owner if known, and, if not, to the occupant, if any, and, if not occupied, as unknown. The tax law of 1882 contains like provisions.
How. Stat. § 1164.
A second, tax deed was issued for the tax of 1875, the original having been lost, and it was objected to, when offered in evidence, as not conforming to How. Stat. § 1164. It contained the statement that it was “a second deed, issued under section 162, tax law.”
For statement of facts, see head-note 4 | [
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] |
Sherwood, J.
The plaintiff in this case is a corporation, located at Wheeling, West Virginia.
In 1883 a corporation, located at Crystal Falls, in this State, known as the Great Western Iron Company, was engaged in mining iron ore in the vicinity of that place. The defendant was president of the company, and the plaintiff had an agent at the same time located at Chicago, whose name was Frederick K. Bowes. The plaintiff’s business was the manufacture of iron and nails.
In 1883 the defendant bargained with the agent of th& plaintiff at Chicago to ship to the Great Western Iron Company, at Crystal Falls, a car-load of “ T ” rails and splice-bars and bolts, and, in accordance with the agreement, the iron was forwarded by the plaintiff to the Great Western Iron Company, and on its arrival at Crystal Falls the defendant gave his individual acceptance for the iron purchased, amounting to $853.87, due in four months, at 8 per cent.; on the receipt of which, the plaintiff wrote the defendant as follows:
“ We acknowledge the receipt of your valued favor of the 26th inst., covering acceptance for eight hundred fifty-three and 87-100 dollars, in settlement of account as stated.”
Defendant’s acceptance was not paid at maturity. About the first of August thereafter, another agent of the plaintiff called upon the defendant for the purpose of collecting or making some disposition of the draft, and, in the negotiation of the matter, the agent, whose name was Timothy S. Casey, acting for the plaintiff, surrendered the draft accepted by the defendant, and therefor received a draft on the Great Western Iron Company, accepted by the company, due in 60 days, for the amount of the overdue draft, less $30, which was paid in money.
The record does not show whether this acceptance of the Great Western Iron Company was ever presented for payment or not. It was not, however, paid when due, and in 1884 the plaintiff brought this suit against the defendant, declaring upon the common counts, accompanied by a bill of particulars, containing as items the car-load of iron.
On the trial, the plaintiff claimed that when its agent, Casey, received the Great Western Iron Company’s acceptance, it was upon representations that the Great Western Iron Company was solvent, and that its acceptance would be paid when due; and that neither of these things were true; and that, by reason thereof, the defendant continued to be liable for the value of the iron purchased.
Upon the trial of the cause, the jury found a verdict for the plaintiff for the amount of its claim.
The defendant asks for a review in this Court, and claims that the plaintiff’s evidence, undisputed, failed to make a case for it, and that the verdict should - have been directed by the court accordingly. This position of course disposes of the whole case, if found to be correct.
It is quite clear that, when the iron was purchased, it was for the use of the Great Western Iron Company; also that the defendant gave his own individual acceptance therefor, due in four months, and received credit for the same on the books of the Great Western Company. When the draft became due the defendant gave the acceptance of the company, for what was before his individual paper, due in 60 days, and was then charged with the amount of the company’s acceptance upon the company’s books. When the defendant gave the plaintiff’s agent the Great Western Company’s acceptance for his own liability, it does not appear that he was asked to accompany the same with his individual liability in any way, or that he promised it to the plaintiff in any form. If the plaintiff expected that liability to continue for 60 days longer, the ordinary way of securing it would clearly have required the draft to have been drawn in such manner that he would have indorsed it. This was not done, and it has a bearing upon the question in what manner and for what purpose the acceptance of the company was received, — whether as payment or as security. This circumstance, taken in connection with the fact that the defendant’s individual acceptance was regarded by the plaintiff as a settlement of the account for the iron purchased, and which was delivered up unconditionally to the defendant, is, I think, clearly sufficient prima facie to show that the acceptance of the company was received by the plaintiff as payment.
A bill or note should be regarded as payment whenever it ■appears such was the intention of the parties, and “that such was the understanding of the parties may be proved by. circumstances, such as the acts and conduct of the parties, as well as by direct proof of an express promise or agreement.” 2 Pars. Cont. 624; Hotchin v. Secor, 8 Mich. 494; Sage v. Walker, 12 Id. 425; Brown v. Dunckel, 46 Id. 32; Burton v. Wells, 30 Miss. 688; Patten v. Hood, 40 Me. 457.
The surrender of the evidence of the debt or liability •strongly indicates payment, as whatever is received therefor is to be regarded as payment. Witherby v. Mann, 11 Johns. 518; Johnson v. Weed, 9 Id. 310; Gardner v. Gorham, 1 Doug. 507; Sears v. Smith, 2 Mich. 243; Burchard v. Frazer, 23 Id. 224; and authorities above cited.
I have been unable to find any evidence in the case tending to contradict the prima facie case that the company’s acceptance was received in payment of the first draft, and defendant’s acceptance thereon. We think that all the testimony shows that the first draft, accepted by the defendant, was received by the plaintiff in payment for the property. These views would seem to be sufficient to dispose of the case, but another point is made by the plaintiff for our consideration.
It is claimed by the plaintiff that, when the company’s acceptance was exchanged for that of the defendant, it was with the promise made by him, and relied upon by the plaintiff, that the Great Western Iron Company was solvent, and that its acceptance would be paid when due.
This suit is not brought upon the defendant’s acceptance upon the first draft, but for the value of the property purchased, and if the original contract of purchase, whether express or implied, was fully satisfied and performed when the defendant made his acceptance, it is difficult to see upon what ground that original contract of purchase can be revived, so as to entitle the plaintiff to bring this action. The •question at once arises, after the defendant gave his acceptance as payment, had the plaintiff any right of action against the defendant, save upon the acceptance? But we may leave this subject here, and consider now the ground mainly relied upon by the plaintiff for recovery, viz., that the representations relied upon entitle the plaintiff to recover.
The following are the statements made by the defendant when the acceptance of the company was given, as narrated on the stand by the plaintiff’s agent, to whom, it is alleged, they were made: Mr. Casey testified, after stating that he was
the plaintiff’s agent at Chicago, and received the defendant’s acceptance of the first draft from plaintiff, with directions to go to Crystal Falls, and make settlement of it, that he met a gentleman on the train, before he got to Crystal Falls, who appeared to be well acquainted in that section of the country, and he got in conversation with him before arriving at the Falls, and then says :
“ During the conversation, I asked him in regard to the Great Western Iron Company, — if he knew them, and what their condition was, and as to how much ore they were getting out, — before I knew it was Mr. Hall; and I asked him if he knew Mr. Hall. He said that was his name; so then I told him who I was, and what my business was. I said that I came up there to collect the draft; but if the condition of the works and his own affairs were such that time was what was required, that the company would have no objections in extending, — giving him an extension of time, — as would be reasonable and proper. He stated to me that that was exactly what was wanted; that their affairs were just in such shape then that a little time would enable them to complete some arrangements that they were then to work on, — sinking of shafts, or something of that kind, putting in new machinery, — and that in sixty days he thought there wouldn’t be any question at all but what they would be able to pay all of their indebtedness.
“ Well, when I went into the town, I made some inquiries of some friends of mine there, and they rather corroborated what Mr. Hall said in regard to the situation at the mine; and I went out there and saw for myself what the condition of it was. I didn’t know much about iron mining; but I could see what was going on, and had a very good idea of the condition that the works were in, and I had no hesitation in saying or believing that Mr. Hall had told the truth in regard to the situation at the mine, and believed, also, that in sixty days, as he stated, the payment would be made. That is all the conversation that 1 had.
“ Q. I call your attention: Was there anything said further about Mr. Hall giving paper of the Great Western Iron Company for his draft?
“ A. Mr. Hall said he would make the settlement with the paper of the Great Western Iron Company, on sixty days’ time, if that would be satisfactory, — if the time would be satisfactory, — and that there would not be any question in his mind but what it would be paid at maturity.
“ Q. What was done afterwards with this draft of Mr. Hall that you had after these statements were made by Mr. Hall to you?”
In the answer to this, and other questions put to the witness, it appears that the acceptance of the company was given to the agent of the plaintiff, and the first draft given up to the company for Mr. Hall.
We have looked through the record, and have found no testimony showing or tending to show that the Great Western Iron Company was not solvent at the time of the exchange of these acceptances. Neither does it appear but that the defendant had good reason for stating all that he said to the plaintiff’s agent.
The agent, it appears, after making both diligent inquiry and careful observation of the standing of the company and the situation of its property, came to the conclusion that what the defendant said was true. And it does not appear that the solvency of the company was ever tested by the plaintiff, by the presentation of its acceptance for payment.
Under all the circumstances of this case, we think it plainly appears that the plaintiff was not entitled to recover, and the circuit judge should have given the first request to charge presented by counsel for defendant.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, O. J.
Mary Storick, an elderly woman who was given by her husband’s will control over all his realty, consisting of three farms, during her life, and the use of all his personalty, had lived on and managed the home farm from her husband’s death, in the early part of 1884, until September, 1885, when her son David and her daughter Mary began these proceedings in the probate court for Berrien county. Her husband’s will left the remainder in one farm to David, and in another to her son Simon, both of whom she had allowed to enjoy their farms in advance. Her daughter Mary, who has the remainder in the home farm, had, up to that time, lived with her mother on it. Some dissensions seem to have arisen in the family, and this application was evidently the result. The judge of probate granted the guardianship, and it was affirmed on appeal by the verdict -of a jury, who were given in charge the entire issue, and found no facts. The verdict, which is put in a statutory form, was not the result of any issues laid before them, and is the form which the court adopted as the result of their .-general finding; the court having ordered them to find generally.
The jurisdictional facts set out in the petition in the pro-late court, so far as they relate to her condition, were as follows:
“ That she is feeble in body and mind, so that she is not ■able to manage her business affairs with a. proper degree of judgment and skill; her mind being so weak that she can be influenced by others in any direction they may see fit to lead her, even right against her own interest, and the interest of her family, and can, by any person almost, be induced to part with her property without just compensation therefor.”
Upon the appeal at the circuit, instead of leaving specific issues to the jury, which in such a case as this are desirable, if not absolutely required, they were, as already stated, •ordered to find a verdict, not even generally as to competency, but merely for the one party or for the other. This makes it impossible to know on what idea they acted. The charge did not require them to pass upon insanity or idiocy in any form or degree. They were only required to ascertain whether, in their opinion, she. could manage, not property generally, but all the farms and personalty, a large part of which she had not attempted to manage, but had left to her two sons. They were told that the fact that Simon had great influence over her, if true, would authorize a guardianship ; and from beginning to end of the charge great stress was laid upon the danger of its being squandered. Among other refusals, the court refused to charge the following, and gave no equivalent instructions:
“The infirmity which justifies the appointment of a, ■guardian over the person and property of Mrs. Storick must be equivalent to insanity. It must be such as renders her incompetent to have charge of any affairs, or to do any business. If it does not extend that far, then she should not be-found by you incompetent.”
Also:
“You should not find the contestant incompetent, if she is-able to take care of herself in the home and place devised to-her by her husband.”
Also:
“If she has sufficient sense and judgment to transact the business affairs pertaining to her situation in life, then she is not to be found by you incompetent.”
Also:
“ If you believe from the testimony that Mrs. Storick is possessed of ordinary sagacity and insight into affairs, so that she knows howto care for her house, and table and clothing, to deal and transact ordinary affairs, and is not insane, nor so foolish or imbecile as to have no mind or intelligence-regarding ordinary matters and affairs which she is accustomed to know of, then you are not to find her incompetent.”'
These were all proper requests.
There are two classes of cases in which guardians may be-appointed, on proper showing, over persons who are of mature years. One is^where “ the person in question is incapable of taking care of himself, and managing his property,” by reason of extreme old age,- or any other cause. How. Stat. §§ 6314, 6315. The other is the case of spendthrifts. Section 6317.
The petition in this case does not undertake to treat Mrs. Storick as a spendthrift, and the testimony shows that such a pretense would be ridiculous. It was meant to be filed under the earlier sections.
The sections 6314 and 6315 expressly confine their operation to a person who is not compos mentis, and whose mind has-become affected by old age or other causes so as to lose its normal condition. The statute does not say merely “ incompetent,” but “mentally incompetent.” It does not refer to-persons who are sane, but not, perhaps, as wise or intelligent as some other persons. It applies to those whose mind is so affected as to have lost control of itself to such a degree as to-deprive the person afflicted of sane and normal action.
Unless the petition either follows the words of the statute,- or uses language and states facts fully equivalent, it cannot give jurisdiction. This is a class of eases in which the citizen is sought to be deprived of both liberty and property, and those who seek to accomplish such a result must do so upon statements that, if true, leave no doubt that the case.falls within the statute.
In the Case of Brown, 45 Mich. 326, the petition was much fuller and more pointed than that now before us; for it stated that Brown was old and infirm, and was “ incompetent to have the care, charge, and management of his property.” It further set forth that he was addicted to intoxication to such an extent as to be liable to become the victim of designing persons, and that, through intoxication and foolish speculation, he had wasted more than half of a considerable estate.
That petition was held substantially and fatally defective, and not equivalent to an averment of mental ineompetency. As there stated:
' “The statute contemplates the existence of insanity, or of mental infirmity that is equvalent in destroying mental competency.”
The allegations before us, meager and uncertain as they are, went further than even the petitioners ventured to go- in their testimony. There is no testimony whatever in the record which tends to show that Mrs. Storick is non compos. She is shown by everybody — and even the testimony of petitioners does not show otherwise — to have been in the same condition as when her husband saw fit to leave her in charge of all his property, and as she had been always, so far as we can judge. She is apparently not educated, and possibly, although this is hardly borne out by most of the testimony, of no great brightness.of intellect; but she has acted with average judgment and economy, has been prudent and careful, and has given no reason for any of the insinuations of petitioners'-beyond objecting more or less to a suitor of her daughter, who is old enough to act for herself if she chooses, and making moderate gifts from her savings to two of her daughters less favored by the will than petitioners. Objection to such rational liberality does no particular credit to persons who desire to prevent the exertion of influence to hamper her free action; and such gifts from a mother out of her savings indicate good sense and good feeling rather than imbecility. Had the issues been presented in proper form on the record, and laid plainly before the jury, we cannot believe they could have found them established. .'
Not only was there error in refusing the charges asked as above noted, but the charge in its general tenor left the jury under a wrong impression as to the policy of the law concerning old people, even when infirm, as she was not.
Persons who can be safely trusted with taking care of themselves are seldom, if ever, liable to guardianship. One may be so sick or crippled as to be compelled to leave his affairs in the hands of servants or agents, and is no more incompetent for that reason than a very wealthy man is who cannot possibly look after the details of his business. Neither is there any legal standard of business wisdom. Men may be unwisely speculative or unwisely penurious, but this is not insanity. A jury of merchants might very easily approve or ■disapprove where a jury of persons unaccustomed to commercial ventures and expenditures would think the reverse. Every man may spend or save as he chooses, so long as he does not come within the prohibitions of law. As long as he possesses a mind normally sound, he is entitled to free agency. It is as cruel and unlawful to interfere with the liberty of the old as of anyone else; and the law cannot favor or permit this liberty to be diminished.
The case shows no reason for interference with Mrs. Storick, and there was no jurisdiction to attempt it. The proceedings in both courts must be quashed, with costs of all the courts against petitioners.
The other Justices concurred.
See Loomis v. Armstrong, 49 Mich. 521; S. C. 63 Id. 355. | [
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] |
Morse, J.
The Attorney General files an information in this case to determine the right of the respondent to hold the office of supervisor of the township of Iron wood in the county of Ontonagon.
The Legislature of 1885, by Act No. 382 (local acts), organized certain territory in Ontonagon county into a township,, to be called Ironwood.
At an election held pursuant to the provisions of said act, on tbe sixth day of July, 1885, the respondent was elected supervisor of said township, and duly qualified, and entered upon the duties of his office. No election was held in said township in the spring of 1886, and the respondent claims to hold over under the statute until his successor has been duly elected and qualified, in manner and form as provided by the statute.
The organization of this township is attacked on the ground that no bill was legally introduced or enacted as a statute creating the township of Ironwood.
The replication of the Attorney General to the plea of the respondent shows that no bill for the organization of the township of Ironwood was ever introduced into the Legislature, but, before the expiration of the constitutional limit of .50 .days in which to introduce bills, Senator Stephenson introduced a skeleton bill, under the title of “ An act to organize the township of Au Train;” that said skeleton bill was no bill at all, and simply consisted of the title as above given, indorsed on a blank sheet of paper; that said township of Au Train was to be located in Alger county.
After the expiration of said-50 days, and on June 3, 1885, the chairman of the Senate committee on towns and counties reported, as a substitute for the skeleton bill so introduced by Senator Stephenson, a bill to organize the township of Ironwood in the county of Ontonagon, and on the same day the rules of the Senate were suspended, and said bill, as a manuscript bill, was passed by the Senate. Subsequently it passed the House, and was approved by the Governor, June 9, 1885.
The replication was demurred to by respondent.
The Attorney General contends that the' Constitution (Art. 4, § 20) was violated in its spirit, because the title of the bill as introduced did not express the object of the act a® passed. We cannot extend the provisions of the Constitution beyond its express terms in this respect. If the object of the act as passed is fully expressed in its title, the form or status of such title at its introduction, or during any of the-stages of legislation before it becomes a law, is immaterial. To hold otherwise would, in many cases, prevent any alteration or amendment of a bill after its introduction, as, in legislative practice, it frequently becomes necessary to amend the title as introduced in order to conform to changes in the bill. The title to a bill is usually adopted after it has passed the House, and is not an essential part of the bill, although it is-of a law. Larrison v. Peoria, A. & D. R. R. Co., 77 Ill. 17.
The showing of the replication, however, if we can consider the facts therein gathered by parol, and not found in the legislative records, involves a plain violation of the Constitution in another respect. No bill was introduced, but a title was handed up to pass as a bill until convenience or some future interest might enable the member introducing it to ingraft upon it any legislation he might desire.
The object of the Constitution, in providing that no new bill shall be introduced after the first 50 days of the session (Art. 4, § 28) is—
“To prevent hasty and improvident legislation, and to-compel, so far as any previous law can accomplish that result, the careful examination of proposed laws, or, at least, the affording of opportunity for that purpose.” Cooley, Const. Lim. 139.
Another purpose was, no doubt, to give the people of the-State, or of any locality in the State, an opportunity to be-heard upon proposed legislation affecting their interests. The legislative journals, referring as they do to the titles of all bills introduced, give some warning to the people of the-measures introduced. The right of petition and protest has ever been recognized as one of the established privileges of the people in a free country; and they have a right to notice •of proposed legislation, and an opportunity to express their assent or dissent. If there was no constitutional inhibition ■against Such practice, bills might be introduced upon the last days of the session, and rushed at once through both houses, without any chance for the people to be heard before their passage, or to rectify the action until another biennial session of the Legislature. The title of the bill in question as introduced gave no notice to the inhabitants of the territory embraced within the limits of this township of Ironwood as organized by this act. And if any person suspecting anything of the kind had investigated the matter, before the •expiration of the 50 days, he would have found nothing but a title, which, without any bill attached thereto, would have conveyed to him no intimation of the act as passed. He would also have been justified, under the provisions of the Constitution, in believing that the title could not be used for any purpose.
While the questionable practice of so amending bills, after the expiration of the 50-day limit,r as to make the act passed entirely different from and foreign to the bill introduced,— in fact a new bill, — has obtained to á great extent in our legislative practice, it is to be hoped that the introducing of mere titles, without any body, is seldom resorted to. If it can be successfully maintained, the safeguard of the Constitution will be completely broken down, and its provisions, nullified.
But it is contended by the counsel 'for respondent that the proceedings of the Senate, as setbforth in its journal, do not show that this was a skeleton bill, as the bills introduced are not printed in such journal, or preserved, and that this fact is ascertained by parol; that the presumption is always in favor of the legality of legislative proceedings, and, where the record does not show the contrary, the proceedings are Conclusively presumed to have been in accordance with the constitutional requirements.
The legislative journals show that on'the sixteenth day of February, 1885, a bill was introduced “to organize the township of Au Train,” which was read a first and second-time by its title, and referred to the committee on counties and townships. The first day of the session was January 7, 1885. June 3,1885, this committee reported, as a substitute for this bill, a bill to organize the township of Ironwood, county of Ontonagon. The substitute was concurred in, the rules suspended, and the same read a third time and passed, yeas 25, nays O. Senate Journal, p. 1120. It was transmitted to the House on the same day, and there read the first and second time by its title, and referred to the committee on towns and counties. House Journal, p. 1604. It was reported back to the House by' the committee, and June 5, 1885, the rules were suspended, the bill read a third time, and passed. It was also given immediate effect. House Journal, pp. 1652, 1657, 1658. It was approved by the Governor, and became a law, June 9, 1885.
Every reasonable intendment is to be made in favor of the proceedings of the Legislature. It is not to be presumed that they have violated the provisions of the Constitution, either purposely or through carelessness or inadvertence. When nothing appears to the contrary in the legislative journals, it is to be considered that all the constitutional requirements have been complied with in the passage of an act. The journal of the Senate positively states that a bill was introduced to organize the township of Au Train. If such a bill was introduced, it would be presumed that the bill substituted, to organize the township of Ironwood, had in view the same general purpose as the first bill, — to give to the inhabitants of the territory described a distinct municipal government. And no one would deny the competency of the Legislature to amend a bill by enlarging or diminishing the bounds of the territory included in such bill. Pack v. Barton, 47 Mich. 520.
The question then arises, can it be shown by parol, in contradiction of the legislative journal, that in fact a “skeleton bill, or no bill at all, was introduced?” The Constitution (Art. 4, § 10) provides that—
“Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy.”
Are these journals kept by the clerks of each house, and read and corrected each day by each body, and duly certified by the proper officers to be correct, to stand as conclusive evidence of their proceedings, or are they liable to l e disputed and overthrown by parol testimony, either of individual officers and members, or of strangers, who may be interested in nullifying legislative action? It would seem that there can be but one answer. The legislative record must prevail. Any other ruling woul& necessarily lead to dangerous and alarming results.
“ The testimony of an individual could not be received to contradict a'statute, and, if not, why receive it to contradict an entry upon the journal?” State v. Moffitt, 5 Ohio, 363; Miller v. State, 3 Ohio St. 475, 484.
It is claimed by the Attorney General that it is admitted on the pleadings that no bill was ever introduced, but that, the title indorsed upon a piece of blank paper was put in„ Courts do not allow parties to stipulate or agree, or admit by pleading, that a statute was not properly or constitutionally passed by the Legislature. If the Constitution has not been complied with in the passage of an act, that fact must be shown by the printed journals, or the certificate of the Secretary of State, the custodian of legislative proceedings. Such fact cannot'rest in parol. Happel v. Brethatier, 70 Ill. 166; Miller v. State, 3 Ohio St. 475. And unless the journal shows affirmatively that the constitutional directions were not complied with, it must be presumed that they were followed. Schuyler Co. v. People, 25 Ill. 181.
Courts are authorized to take judicial knowledge of the legislative journals.
The journals in this case show that the bill was read the first and second time in both houses by its title only. The Attorney General contends that this action was in violation of article 4, § 19 of the Constitution, which provides that—
“Every bill and joint resolution shall be read three times in each house before the final passage thereof.”
It is a sufficient answer to this objection that the same is not set out or raised in the pleadings. We do not care to go outside of the record to hunt for flaws in the legislative journal upon the passage of this bill, if any exist.
It appears that the board of supervisors of Ontonagon county, since the passage'of this act, have undertaken to form two townships, Bessemer and Ironwood, the territory of which townships, so organized by the supervisors, embraces the territory contained in the township of Ironwood as organized by the Legislature. The petition, however, upon, which the supervisors acted 'in organizing such townships, was signed by persons representing themselves as citizens and freeholders of the townships of Carp Lake and Ontonagon. Such action cannot stand in the way of the legislative organization. No freeholders of the township of Ironwood joined in the petition, as shown upon its face. How. Stat. §486.
Judgment must be rendered in favor of the respondent, sustaining his demurrer, and declaring him entitled to the office.
The other Justices concurred.
How. Stat. § 685, provides that all officers elected at the annual -township meeting, except justices of the peace and school inspectors, shall hold their offices for one year, and until their successors shall be elected and duly qualified. | [
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Chahplin, J.
PlaintifE brought an action of trover against defendant to recover damages for the wrongful conversion of 34 sheep. The plea was the general issue.
The plaintifE claimed that, shortly after shearing time in the spring of 1882, he turned his flock of sheep, consisting of 22 ewes and 12 lambs, into the public highway; that they strayed away and became lost to him; that they remained in the highway in the vicinity of Henry Quick’s farm from four to six weeks previous to the alleged conversion. This was about five and one-half miles from plaintiff’s residence.
Defendant owns a large number of sheep, dispersed among the farmers in Cass and other counties, and had made a contract with one Root to deliver him some 500 wethers; and in November, 1882, he was selecting out from his various flocks sheep to fill this contract. The sheep were to be delivered to Root at Oassopolis on the twenty-fifth of November. He had in his employment a number of persons to assist in driving. Mr. Quick owned a farm within a mile and a half of Cass•opolis, and defendant had arranged with him to keep his •sheep over the night of November 23. T.he first flock to arrive at Quick’s farm was driven by defendant’s servant Gray. It was nearly dark when he arrived there, and, although he had been told, he had forgotten Quick’s name. He. saw Mr. Quick standing by the pump as he was driving the sheep, .and stopped and had a conversation with him. This fact" was ■called out by the plaintiff, whose witness Gray was, on the ■direct examination. He was asked by plaintiff’s counsel:
“ Q. When you got along by Mr. Quick’s, did you see Mr. Quick anywhere?
“A. Yes, sir. When I got along by Mr. Quick’s I noticed a ffock of sheep about 25 or 30 rods ahead of my flock.
“ Q. Did you make some inquiry about that flock of sheep of Mr. Quick?
“A. Yes, sir.”
On cross-examination he was asked if he had a conversation with Mr. Quick when he saw him there, and he replied that he did. Counsel for defendant then asked him this question:
“ Q. What did you say to him, and he to you?
“.A. I asked him whose sheep they was in the road, and he said they was a stone-pile; and I said: ‘No, beyond that.’”
At this point the plaintiff’s counsel interposed an objection that the conversation was not proper, as introducing the declarations of Mr. Quick. The objection was sustained, un less it was offered for the purpose of showing that Gray made-some statements to Quick different from what he swore to. Counsel for defendant then asked:
“ Q. You may state if, in that conversation, you told Mr-Quick whose sheep you were driving.”
This was also objected to and excluded. These rulings are-the basis of the twentieth and twenty-first assignments of error, and will be noticed hereafter.
It appears that Gray, after the conversation with Quick,, drove his sheep on and into the flock of sheep which he saw in the road, and they became mingled; that, at about that time, defendant came from the direction of Cassopolis, and met Gray, who informed him that some stray sheep had run in with his. It was then too dark to separate them, and they drove all of the sheep back, and turned them into Quick’s field, -and • defendant then notified the neighbors that some-stray she.ep had got in with his, and inquired about them at several neighboring farms, but found no owner or claimant,. After putting a second flock of sheep, which other employéshad driven for him, into another field on Quick’s farm,, defendant, with two of his drivers, Gray and Goodenough,. drove to Northrop’s, and stayed all night, while two other drivers, Brown and Shaffer, went on to Hale’s, beyond Northrop’s, and there stayed all night.
Plaintiff claims that, early on the morning of the twenty-fourth, defendant drove to Hale’s, got Brown, a boy then 13-years of age, and drove directly to the field, some five or six miles distant, and there separated plaintiff’s sheep from his. own, drove them through two fields, taking down the fences, and turned them into the fair-ground, and then returned,. Brown going to meet the other employés, while defendant drove by a circuitous route into Cassopolis; that the sheep-remained in the fair-ground about a week, and then were driven away by defendant. Brown testified directly and positively to going with defendant on the morning-of the twenty- fourth, leaving Hale’s with McGill at 7 or 7 o’clock and 15' minutes, and separating out the sheep, and assisting defendant in turning them into the fair-ground. Mrs. Marsh testifies to seeing defendant and Brown driving the sheep to-the fair-ground about 9 o’clock in the morning. Brown was corroborated, as to the time he and defendant went to Quick’s farm in the morning, by witnesses Grim and Shanna-felt. Mrs. Marsh was the only witness who testified to seeing the defendant drive the sheep away from the fair-ground.
The defendant claimed that on the twenty-third he was driving two flocks of sheep, to fill a contract for 500 wethers on the twenty-fifth; that the flock driven by Gray were all wethers, and that they were, by previous arrangement, to be put in Quick’s field; that they reached the field ahead of him, and turned the corner, and he took Gray in his buggy and drove past them to turn them back, and, as he headed them, he thought a number ran in with them; that it was then dark, and he supposed that the sheep that ran in were strays; that it was so dark they could no.t separate them, so they were all turned into Quick’s field; that he then drove back, and had the second flock put in another field, and then drove to Northrop’s, notifying the neighbors of the supposed stray sheep, and making inquiries of them; that he and Gray and Goodenough stayed at Northrop’s, some five and a half miles from Quick’s, south-east of Cassopolis, and Brown and Shaffer stayed at Hale’s, still further away; that' the nest morning he did not leave Northrop’s before half past 7, and drove directly to Hale’s, where his whole force was engaged in sorting sheep until 9 o’clock; that he left them after the-sheep were sorted, and drove to the widow Norton’s, where-more sheep were sorted, and then, leaving his men to bring on the sheep, he drove to Cassopolis, and got Mr. George to-go with him to Quick’s and sort out the supposed strays;: that they got some salt, and left Cassopolis at about 10:30,. drove direct to Quick’s field, and discovered that the sheep. were all fine-wooled wethers, marked with chalk, and with no strays among them; that he notified the neighbors that there were no strays among his flock, and then, after dinner, drove home, leaving the sheep at Quick’s until the next day, when he delivered them to Root.
The defendant positively denied having or seeing plaintiff’s sheep; denied ever taking any into or out of the fair-ground; and denied being at Quick’s, or Quick’s field, earlier than after 10 o’clock on the twenty-fourth, or of ever beiog there with Brown except on the evening of the twenty-third as stated. To support his testimony he called Ezra Shaw, Andrew Kittell, Mrs. Kern, and read the testimony of Shaffer and Goodenough taken on a former trial, showing his presence at Hale’s until 9 o’clock on the morning of the twenty-fourth, and corroborated it with the testimony of Mr. Northrop and Mr. George. He also introduced testimony showing contradictory statements made by Brown.
The defendant contends that he did not have a fair trial; that his case was prejudiced before the jury by the rulings of the court, and by his instructions to the jury.
There are 23 errors assigned, all of which are relied on for ¡a reversal. We shall notice but two.
The defendant was entitled to the conversation inquired after between the witness Gray and Mr. Quick. The plaintiff saw fit to go back of the actual conversion of the sheep by the defendant, and introduce facts and circumstances ■which preceded and led up to the conversion complained of. All such facts and circumstances were a part of the res gesics, ■and were so treated by the trial judge in his charge to the jury, who directed the jury that it was proper for them to ■consider the fact of plaintiff’s sheep straying away, of his ■description of them, of a flock being in the highway of a ¡similar description, the mingling of the sheep, and turning them into the field with his own; that they must take all the testimony, and examine it, and take all these things into consideration, and say whether there is a preponderance of evidence that defendant did convert these sheep to his use.
It appears that defendant had made arrangement with Mr. Quick to keep his sheep over night, and that he had told the witness Gray of that fact, but he says he had forgotten his name. The plaintiff called out the fact.that he had a conversation with Quick when he arrived-at his place; that he saw these sheep 25 or 30 rods ahead of his Sock; but he was not inquired of what the conversation was. The conversation was relevant, and might be important. It may have afforded the reason of Gray’s driving the sheep forward into this other flock, instead of turning them into Quick’s field, as it was agreed should be done.
It is true that the fact that a witness is asked if he had a conversation at a certain time, and the matter is left with an affirmative reply, does not always entitle the other party to call out what the conversation was, as was held in Beaubien v. Cicotte, 12 Mich. 484. But it depends upon whether such conversation would have any bearing upon the controversy. If it would, it is proper to elicit the conversation. Moreover, the objection in this case was interposed.too late. It was not competent for plaintiff’s counsel to delay making objection until the witness had partially answered the question, and then interpose the objection so as to shut out the balance of the conversation. It was competent to show that he told Mr. Quick whose sheep he was driving.
The circuit judge charged the jury as follows:
“Now, gentlemen, the first thing proper for you to consider is, whose sheep was this flock that was running in the road by Mr. Shannafelt’s place? Were those sheep the sheep •of Mr. Dunbar? And, in determining that, you will take into consideration all the facts that have been shown in relation to that. You have heard Dunbar’s description of them. You have heard him state what kind of sheep they were, and how many lambs there were, how many old ones there were. You have also heard the description other folks gave of that flock; more especially Amos J mes. I think he gives a more minute description than any other witness of those that were-running there. It is for you to say, under all these circumstances, was the flock that was there, and had been running there (and nobody else had claimed them), — all these facts, taken together, was there a probability that these were Dunbar’s sheep? In other words, is there more evidence to show that these were Dunbar’s sheep than that they were not his. sheep? If there is, you are warranted in finding that they were Dunbar’s sheep. .If you come to the conclusion that, the evidence does not sustain that they were Dunbar’s sheep, that would be the end of the case, and your verdict would be-for the defendant. If you find that these were Dunbar’s, sheep, — that there is a greater probability that they were. Dunbar’s sheep than that they were not, — the next question is, were they turned into the field that evening, — into Quick’s, field, — as is claimed by the plaintiff.”
We think this instruction was misleading. It leaves out of view an important element to be considered.in the application of the preponderance of probabilities; and that is,, the testimony introduced tending to show that these were plaintiff’s sheep must have been of such character and weight as satisfied the jury that the sheep which mingled with defendant’s, and which it was claimed defendant converted, were the property of the plaintiff. This question did not depend upon whether there was more evidence to show that these were Dunbar’s sheep than that they were not his sheep, but upon the question whether there was sufficient evidence to satisfy the jury that they were his sheep.
There was no evidence introduced that they were not Dunbar’s sheep, and there was no positive evidence introduced that they were. The evidence tending to show that they were his rested entirely upon inference; and its sufficiency should have been submitted to the jury, and their attention called to it as one of the necessary facts to be proven by the plaintiff.
The j ury were told — and they may have -acted upon the instruction — that, if there was more evidence to show that these were plaintiff’s sheep than that they were not, they would be warranted in finding that they were his, and yet the evidence may have failed to convince them that such was the fact. The jury are not warranted in finding a fact established by a greater probability unless, also, the evidence satisfies them that the fact exists. The conclusion that it exists may be drawn from a preponderance of probabilities in its favor, but the probabilities must be such that the conclusion may be and is drawn, or it is not proved.
The judgment is reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Morse, J.
Plaintiffs recovered in the court below upon s, fire insurance policy, written by the defendant in favor of Barrington, Wilson & Co., upon mill property at Round lake, near the city of Cadillac, in the county of Wexford.
The defense gave notice, under the general issue, that there was an application and survey on file with its agents, which was a warranty of the assured, and made a part of the policy sued upon; and alleged a breach of the warranties therein contained^ and forfeitures of the policy, as follows:
“1. That the insured property was worth $12,000.
“2. That the said property was incumbered only to the amount of a $2,000 mortgage, and part of machinery was on contract.'
“3. That no other persons were interested in the said property than Barrington, Wilson & Co., and the said mort-. gagee.
“ 4. That the mill insured, and ground on which it stood, were owned by the insured, Barrington, Wilson & Go.
“ 5. That there was and should be on the insured premises a watchman, at all times when the mill (insured) is not running, during the running season.
“ 6. That there was always on hand, ready for use, ladders-of sufficient length to reach the roof covering said property.
“ 7. That barrels of water will be kept on the roof (covering said property) during the mill-running season, in the summer.
“8. That lumber was not, and should not be, piled nearer to the insured (mill) than 200 feet.
“9. That if the situation or circumstances (of the insured property) are changed, or risk increased, or property (insured) becomes incumbered in any manner or way, the said insured would notify the agent of defendant forthwith of such alteration, increase of risk, or incumbrance.
“ 10. That the shavings used in said mill for fuel were and would be conveyed to the furnace with an iron chain.”
During the year 1882, and since, the firm of Sawyer & Bishop have been insurance agents at Cadillac, representing, among others, the defendant company. In 1882, while the mill was in process of construction, these agents wrote builder’s risks upon it, which were carried until its completion.
January 2, 1883, when the mill was completed, Copley and Barrington went to the office of these agents, and applied for insurance. They told Sawyer, who filled out the application, that the firm of Barrington, Wilson & Go. was composed of Barrington, Wilson, and Copley. Barrington signed the- application, which named $8,000 as the snm to be written. Nothing was said as to the companies which should carry it. The agents put $3,000 in the defendant company, and the balance in two Philadelphia companies. The policies all expired in one year from their date.
January 24, 1883, the insurance in defendant company was reduced one-half, and $1,500 written in another company, the German-American. About a week before the policies expired, Sawyer visited the mill, and wanted to renew the insurance, which expired J anuary 2, 1884.
Before this time Copley had retired from the firm, and two brothers, by the name of Hiatt, had taken his place, but the firm name remained as at first. This was known to Sawyer. The firm did not feel able to take $8,000 again, but, after-some talk, Sawyer was authorized to write the property up-for $6,000. Upon his return to Cadillac he wrote new policies in the same companies, dropping out the German-American. Only $1,000 was taken in the defendant company, which is the policy in suit. It was made payable to Marthinson & White (the plaintiffs), mortgagees, as their interest might appear. Nothing was said about any application or survey. No new application was made or survey taken.
The defendant’s agents speak of these policies as being renewals, but new policies were written, and the one sued upon was for a different amount than the old one.
July 29, 1884, the mill and other property insured was destroyed by fire.
When the policy of insurance was offered in evidence, it was objected to on the ground that the policy contained, upon a printed slip attached thereto, the following clause:
“Reference is made to application and survey on file, which is a warranty of assured, and hereby made a part of this policy.”
The defendant’s counsel contended that plaintiffs should produce the application and survey, the same by the terms- of the policy being a part of it, and introduce the two papers together. The court inclined to this view of the case, but, upon the claim of plaintiffs’ counsel that there was no application and survey accompanying the policy in suit, admitted the policy, and allowed oral proof to be introduced bearing upon the question whether there was any such application or survey, as applied to the new policy.
He also submitted to the jury, in this connection, the following special question:
“Was the written application of the old firm of Barrington, Wilson & Co., dated on the second day of January, 1883, made a part of the new policy issued January 2, 1884?”
To which the jury answered, “ No.” This action is assigned as error.
We are inclined to the view that the submission of this question to the jury was a proper one. The policy sued upon could not be considered strictly, by its terms, a renewal of the old one. Upon its face it differed from the other, being for a less amount, and containing no reference to any previous policy. The application was not made with reference to any policy of insurance in this or any other company, but was a general one. The reference to an application and survey on file in the policy sued upon was not specific or certain enough. 1 Wood, Fire Ins. (2d ed.) § 160, and cases cited.
But, in our view of the whole case, it is not necessary to pass upon this question, as will appear hereafter.
The plaintiffs also claimed that there had been a waiver of some of the breaches of the warranties contained in the application before the loss, for the reason that the agents of the defendant company, Sawyer & Bishop, and also special agents, were at the mill frequently during the year 1883, and knew that barrels of water were not kept on the roof of the mill during the summer season, and that, the shavings were not conveyed to the furnace by an iron chain, and of other breaches; that, knowing this, they took the insurance of 1884 without saying anything about these breaches, or requiring that such warranties should be thereafter complied with, and therefore it must be considered that they placed this insurance in reference to the property as it then was, and as it had been used and kept under the old policy; and that such action was a waiver of these conditions.
Plaintiffs also claimed a waiver of all the breaches of warranties in the application, and of the conditions named in the policy, after the loss, which claim was submitted to the jury, who found such waiver as claimed. This is also assigned as error.
To dispose of this last question of waiver after loss, which in our view is the controlling issue in the case, it will be necessary to refer to the proceedings of the parties, after the fire, as to proofs of loss, and steps taken looking towards an adjustment of the same.
The property burned July 29, 1884. Notice of the fire was at once given to the local agents at Cadillac, Sawyer & Bishop. Soon after, an adjusting agent of the defendant company went to the mill, and looked the matter over.
On August 21,1884, two of the adjusting agents met Barrington and the Hiatt Brothers, at Cadillac, having before that time notified the firm to meet them there to consult with them relative to adjusting the loss. At this meeting one of the Hiatts and Barrington were examined, separately and at length, by these agents, and their statements taken in writing, and under oath, before a notary public, who was a member of the insurance firm of Sawyer & Bishop, and a local agent of the defendant.
These statements were put in evidence by the defense.
From these statements the defendant company was informed upon that day of the breaches of warranties. Hiatt* s statement, on oath, was to the effect that the shavings were not conveyed to the furnace by an iron chain, that there were no barrels of water on the roof at the time of the fire, and no watchman kept at the mill all night.
Nothing was said, however, about any claim of forfeiture of insurance, and no intimation was given from which Barrington or Hiatt could infer any intent on the part of the insurance company to refuse or contest the payment of the loss. The agents pocketed the statements, and went away.
On the second of September the assured procured blanks, and obtained some instructions, from the local agents, and made out their proofs of loss, and submitted the same to such agents, who forwarded them to Chicago. No attention was paid to them until October 3, when the general superintendent at that place wrote to them the following letter:
“ Chicago, III., October 3, 1884.
“ Barrington, Wilson & Co., Cadillac, Mich. — Gentlemen: On returning from an absence of some days, I find on my desk papers purporting to be proofs of loss under policy No. 600,794, claiming to have been sustained by a fire, July 29, 1884, which appear to have been served upon Sawyer, Bishop, Haire, and by them forwarded here. We have given the papers examination at our earliest opportunity, and beg to herewith return the same to you, declining to accept the same as due and sufficient, under the conditions of said policy, and to which we refer you for a more particular and exact statement ; and we specify for your particular attention the following objections thereto:
“ 1. By your own showing on said papers, purporting to be proofs of loss, your claim against us, as made therein, is unjust, excessive, and incorrect, and the same should be corrected accordingly.
“ 2. The statement as to ownership of the building, which appears to have been a part of the realty, and to have been insured as such, and that the same had two chattel mortgages thereon, would seem to clash; and we desire that the same be set forth more clearly as to the exact interest of the assured in said building, and the parties’ names, and their several interests therein, going to make up the firm of B.,' W. & Co., assured.
“ 3. In like manner, it is stated that part of the machinery was held on contract by Cobbs & Mitchell, strangers to our contract (if any exists), and we desire the exact interest of the assured to be stated, and a certified or verified copy of said ‘ contract ’ to be furnished as a part of said claimed proofs.
“4. The affidavit and signature to said paper purporting to be proofs of loss are insufficient, and perjury could not be predicated thereon only as against J. W. Bárrington. We desire the signatures and the oaths of the members composing the firm, — all of them,— unless legal disability, or other unavoidable obstacle, exists to prevent the same.
“ 5. The paper purporting to be a certificate of the nearest magistrate is ambiguous, and, in our opinion, faulty, and not formal, in that it certifies to an ‘ amount’ far below the claim made in the preceding paper, and, if correct, one-sixth thereof would be far below the claim you endeavor to make against us elsewhere in said paper.
“ You. will please take notice that-each, of the above objections are separately made, and the one is. not dependent upon the other.
“ You will further take notice that in returning said papers, and making the objections thereto, and in all other matters herein, this company waives none of its rights and defenses under their said policy, but expressly reserves each and every one thereof unto itself.
“For the Company, . W. B. Cornell, Supt.”
Endeavoring to comply with the requirements of this letter, new proofs of loss were prepared of date March 9, 1885, and sent to Chicago. T. J. O’Brien, as attorney for the assured, also wrote two letters to Cornell, of date April 15 and 22.
May 15, 1885, Cornell replied as follows:
“Registered, L. B. Chicago, III., May 15, 1885.
“ T. J. O’Brien, Esq., Attorney at Law, Grand Rapids, Mich. — Dear Sir: In the matter of claim for loss Barring-ton, Wilson & Co., beg to say that, on my return home from an extended absence, I find on my desk your letter of April 15, 1885; also papers purporting to be proofs of loss in the above matter, dated March 9, 1885. I also find returned tome original papers purporting to be proofs of loss, accompanied by your letter of April 22, 1885. As no one in our' office was familiar with this matter except the writer, no answer could be made until my return. • I make haste to advise you in the premises immediately upon my reading same, that no delay may be charged against us. This company decline to accept either the ‘ original ’ papers or the supplementary papers purporting to be proofs of loss, and we specify, among, others, the following reasons why we decline to do so:
“ 1. Neither set of papers is in compliance with the explicit terms and conditions of our policy, to which you are respectfully referred for a complete statement thereof.
“2. The ‘original’ papers not having any amendment attached thereto, and in all respects being unchanged themselves, are again objected to as per our letter of October 3, 1884, addressed to Barring-ton, Wilson & Co., at Cadillac, Mich., to which you are respectfully referred.
“3. That the supplementary papers do not comply with or relieve Barrington, Wilson <fc Co. from the first and fourth specific objections made in said letter of October 3, 1884, and the same are herewith reiterated, and again specifically and separately insisted upon.
“ 4. That as to our second, third, and fifth objections named in said letter, we are still of the opinion that the compliance attempted has not been full and complete under said policy conditions, and we leave any amendment thereto to you, to make the same or not, at your own peril.
“5. That more than a reasonable time has elapsed in which Barrington, Wilson & Co. could and should have complied with the conditions of our policy, and this company ought to be excused from' any liability under the same, if any ever existed, because of inexcusable laches.
“6. As you nowhere indicate that you are the attorney for Barring-ton, Wilson & Co., we can only address you as we have, and say that we do not, for that reason, return the papers to you (‘original’ and ‘supplementary’), but we hold them subject to your order, declining to accept the same for reasons above stated, as well as other defects therein.
“ Take notice that onr objections are made separately, and not the one dependent on tbe other, and the company hereby expressly waives none of its rights or defenses under their said policy, but expressly reserves each and every one of them unto itself.
“ For the Company, W. B. Cornell, Supt.
“Will return the papers, postpaid, to wherever you may direct, as the same came from you. W. B. C., Supt.”
Upon the receipt of this communication, work was commenced to perfect such proofs of loss, and finally, on the eleventh of July, 1885, they were received at Chicago the third time. These proofs complied with all the requirements of the policy, with two exceptions, to wit:
1. The oath and signature of "Wilson was wanting, as he could not be found.
2. There was a delay in completing the proofs which might be claimed to be beyond a reasonable time after the loss.
July 23, 1885, another letter was received from Cornell, as follows:
“Registered. Chicago, III., July 23, 1885.
“T. J. O’Brien, Esq., Grand Rapids, Mich. — Dear Sir: I have yours of the eleventh inst., inclosing a new batch of papers, purporting to be f supplementary proofs of loss,’ in the claim of Barrington, Wilson & Co.
“You do not yet state that you are the attorney for any one interested in this matter, but, as the papers come from you, I reply that the first, second, and third batch of papers are declined and refused as the due and formal proofs of loss that the conditions of our policy call for, and to which you are again referred, and all of said papers are subject to your order as attorney for the claimants, or the order of the latter themselves.
“We can only again refer you to our respects of October 3, 1884, to claimants, and to our respects to you of May 15, 1885, and repeat our position as assumed therein, and our demands as made therein, that yet remain uncomplied with. Certain of these demands were made October 3, 1884, and the claimants have had over eight months in which to comply, and compliance was possible, unless, indeed, the member of the firm who has not yet sworn to or subscribed the ‘ papers ’ sent me is afraid to swear to and subscribe to the facts that our policy calls for to constitute due and formal proofs, and a legal claim on the company.
“ We join issue with you in your statement, ‘ the claim is an honest one,’ and feel all the more strong in our belief now that one of the members of the firm of claimants, who was on the ground at the time of the fire, evades or refuses to make and sign on oath as have the others. In all the papers sent me, the claim against this company has been unjust and excessive, and the amount thereof is not supported by the papers themselves.
’ “ Again, the statement of the amount of the pretended loss, upon various items named, is beyond their actual value; and this company is entitled, after due and formal proofs, to an appraisal as to what is or was the correct and actual loss or damage by fire thereto, a difference having arisen as to the same.
“ Repeating our former objections and demands, and standing thereon, and waiving none of our rights, objections, or defenses under our policy, I am,
“ For the Company, W. B. Cornell, Supt.”
On the twenty-fourth of the same month this suit was commenced.
In relation to these proofs of loss, the circuit judge instructed the jury that it was for them to determine whether the omission of Wilson’s signature and oath was excused, and that, if they found that the assured employed all means possible to obtain his name and oath to the proofs, the want of such name and oath would not invalidate the proofs; and, further, that the first proofs were submitted in time, or, if not, the time was waived by the letter of Cornell of October 3.
“ The company delayed one month before it made known any objections. It is for you to say whether or not the company itself was guilty of laches in this respect, and how far, if at all, this delay of the company caused the subsequent omission and delay in presenting further proofs of loss.”
It is evident from the record that the assured did all they possibly could do in the matter of the perfecting of these proofs, and the letters of Cornell show an express purpose to embarrass and hinder them in the making of such proofs. There is a lack of candor and straightforward dealing on the part of the company, not commendable, to say the least. There seems to have been an evident purpose to impose blind conditions, in the hope of being able to legally reject the proofs of loss.
The charge of the court was correct, and the jury were justified in finding that the proofs of loss were a substantial compliance with the conditions of the policy, and that there was no unreasonable delay in completing them. Soon after the fire, the members of the firm, which was broken up thereby, separated, and all the delay, not chargeable to the laches of the agents of the defendant company, was occa sioned by the difficulty of finding Barrington and the inability to find Wilson.
The proofs of loss being found to be not in fault, and sufficient, by the jury, upon a fair submission of the question to them, we do not think it necessary to examine into the •errors alleged upon the question of waiver before loss, or to inquire into any breaches of tfie warranties contained in the application, or the conditions of the policy, or to determine whether or not the court erred in admitting oral proof upon, or submitting to the jury, the question whether this application attached or not to the policy in suit.
By the course of proceeding in reference to the reception and making of the proofs of loss by the defendant company, it must be considered as having waived all defenses based upon breaches of warranty or forfeiture under the insurance contract.
When the adjusting agents of the company were at Cadillac, on the twenty-first of August, 1884, by their examination of Barrington and Hiatt, they were put in possession of evidence, by the way of admissions of third parties under oath, which gave them the opportunity then of making the defense sought to be established upon the trial. They had ■only to say to the assured:
“ By your own admissions, your policy is forfeited, and we refuse, therefore, to pay your loss.”
On the contrary, they saw fit to remain silent, and, without notice of these different items of defense, put the assured to the inconvenience, trouble, and expense of perfecting their proofs of loss, and in the very last letter content themselves with objecting to such proofs. With a knowledge of .all the acts creating the forfeiture claimed upon the trial, the defendant company put the assured to expense in perfecting proofs of loss, which, under the present claim of defendant, was wholly unnecessary, as the proofs, however perfect, were valueless, if the defense of forfeiture was a good one. By this action the defendant company must be held to have waived such defenses. Carpenter v. Continental Ins. Co., 61 Mich. 635; German Fire Ins. Co. v. Grunert, 112 Ill. 69, 78; Titus v. Glens Falls Ins. Co., 81 N. Y. 419; Gans v. St. Paul, etc., Ins. Co., 43 Wis. 109.
This question of waiver was submitted to the jury, but we regard it as a question of law, as the facts of the action of the company and the assured are undisputed, and mostly furnished by written evidence. The jury ought to have been instructed that the defendant had waived all defense based upon warranties or forfeitures.
It is argued by defendant’s counsel that the defendant saved its rights, and waived none of its defenses under the application or policy, by reason of the last clause of Cornell’s first letter, to wit:
“ You will further take notice that in returning said papers, and making the objections thereto, and in all other matters herein, this company waives none of its rights and defenses under their said policy, but expressly reserves each and every one thereof unto itself;”—
Which clause, in substance, was repeated in the other letters. We do not think this general reference to other possible defenses was sufficient. It devolved upon the defendant to specifically state its defenses, or some of them, if it had any other than those going to the defects in the proofs of loss. If the company had frankly stated that it refused to pay the alleged loss because of the breaches of warranty and forfeiture by the conditions of the policy, the knowledge of which it then possessed, the assured would have, in all probability, gone no further into cost and trouble to perfect such proofs of loss, as its refusal to pay on other grounds would have rendered it unnecessary. This loose and general reservation of- its rights cannot be considered as an adequate notice of the defenses insisted upon at the trial, and it must be held that such defenses were waived by its conduct. Mercantile Ins. Co. v. Holthaus, 43 Mich. 423.
It was proper to compute interest upon the amount of the loss from the date of the commencement of the suit, and to add such interest to the amount of said loss in making up the verdict.
The judgment is affirmed, with costs.
The other Justices concurred.
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Champlin, J.
About the month of January, 1877, Nathan S. Boynton entered into a contract with the city of Pittsburgh to manufacture ladders, the contract price amounting to between six and seven hundred dollars. To enable him to carry out his contract he assigned his contract with the city to defendant, McMorran, as security for any advances he might make to Boynton to enable him to complete such contract. Defendant made advances from time to time, and in some instances paid orders drawn on him by Boynton.
Plaintiff is a blacksmith, and after the assignment Boynton employed him to iron one of the ladders, which he did, and his bill therefor amounted to $62.30. Plaintiff was not aware of the assignment to defendant, nor with his agreement to furnish advances to Boynton, and the work was not performed for nor credit given to defendant by plaintiff for the work and material upon the ladder. Plaintiff testified that he finished work upon the ladder June 1, 1877. Boynton testifies that he shipped the ladders in May, 1877, to Pittsburgh, in McMorran’s name as assignee. When they arrived there, the city refused to receive them, and a suit was brought in May, 1879, in the name of N. S. Boynton, plaintiff, for the use of Henry McMorran, against the city of Pittsburgh, which resulted in a judgment for Boynton on the twelfth of March, 1880, for $632. In October, 1880, a petition was presented by Boynton for a rule upon the treasurer of the city to show cause why the judgment should not be paid out of the appropriation to the fire department. In April, 1881, the judgment was paid and satisfied in full. The avails received by the defendant were $503.42.
After plaintiff had finished his job of work for Boynton, he presented his bill and requested payment. He was then informed of the assignment of the contract to defendant, and Boynton offered to give plaintiff an order upon defendant, and plaintiff agreed to take such order. A few days thereafter Boynton drew up and delivered to plaintiff the following order, viz.:
“Poet Huron, Mich., Dec. 27, 1877.
“ II McMorran: Pay to the order of Geo. Mitts the sum of sixty-two 30-100 dollars out of any funds that may come into your hands from the Pittsburgh acc’t for ladders outside of your bill. N. S. Boynton.”
A day or two afterwards Mitts presented this order to defendant, “who received it, and said, “All right,” or that he would pay it when he received the money from Pittsburgh, or that he would pay it if there was anything due Boynton after he got his pay. The testimony was conflicting upon the subject as to what was said when the order was presented to defendant. The defendant, however, kept the order in his possession, and produced the same upon the trial of the cause. After defendant received the money from Pittsburgh, he refused to pay the plaintiff, for the reason that he had no money after satisfying his own demands against Boynton.
After the plaintiff had closed his proof and rested, the defendant’s attorney inquired of plaintiff upon what theory he sought to recover, to which he replied that he sought to-recover upon the agreement made at the time the order was presented. Thereupon the defendant introduced his proofs.
After the testimony was introduced the circuit judge - charged the jury as follows:
“ In this case it is claimed by plaintiff that on or about December 27, 1877, Boynton was indebted to him in the sum of sixty-two dollars and thirty cents; that Boynton at that time gave him the order which has been offered in evidence;, that he then presented it to Mr. McMorran, who said he would pay it when he received certain moneys from Pittsburgh. There was no agreement between Boynton and Mitts,, or between Mitts and McMorran, that Boynton should be no longer liable, or that McMorran should take Boynton’s place as creditor to Mitts. Mr. McMorran, at the time he received the order from Mitts, was not indebted to Boyntoü, and was in no way interested in the matter of account between Mitts and Boynton. There was no consideration whatever for the provision which Mitts claims was made by McMorran; and; that being the case, and the promise not being in writing, the plaintiff can maintain no action upon it, even if the matter occurred as he states. You will find a verdict for the defendant.”
The plaintiff’s attorney presented several requests to the-court to instruct the jury, all of which were refused. The third, eighth, eleventh, twelfth, thirteenth, and fifteenth requests were as follows:
“ 3. It is-for you to determine what the agreement between Mitts and McMorran was. If from all the evidence you find that McMorran agreed to pay Mitts when he got the money from Pittsburgh, and Mitts, relying on that agreement, looked no longer to Boynton for his pay, such an agreement would be valid, and the plaintiff would be entitled to your-verdict.”
“ 8. The assignment of the Pittsburgh contract to McMor •ran, and the order given by Boynton to Mitts on McMorran, must be construed together.”
“11. The order drawn by Boynton on McMorran directs McMorran to pay Mitts $62.30 out of any funds that might -come into his (McMorran’s) hands from the Pittsburgh Account for ladders outside of his (McMorran’s) bill. It is your duty to determine the meaning of the words ‘outside of your bill.’ The plaintiff claims that the bill referred to was the advances made by McMorran from time to time to complete the ladders. The defendant claims that it refers to Boynton’s indebtedness to McMorran, whether growing out of the assignment of the contract, or out of advances to complete the ladders or otherwise.
“ 12. If you determine that the ‘bill’ mentioned in the order was the advances made from time to time by McMorran to complete the ladders, and that, after paying such advances, there remained in his hands enough to pay Mitts’ claims, or Any part thereof, your verdict should be for the plaintiff for the amount of his claim, or, if there is not sufficient to pay in full, then for so much as remains in McMorran’s hands, ■with 7 per cent, interest since McMorran received the money.
“13. The assignment from Boynton to McMorran of the Pittsburgh contract, and the purposes for which it was made; the conversation between Boynton and McMorran about the Mitts claim before the order was given; the order drawn by Boynton on McMorran and given to Mitts; and the conversation between Mitts and McMorran when the order was presented, — should all be considered together in determining whether or not McMorran agreed to pay Mitts the amount of his claim.”
“ 15. If Mitts had a valid claim against Boynton, and Mc-Morran/ with Boynton’s consent, assumed and promised to pay Mitts when certain money in which Boynton had an interest came into his hands, and he has received the money, and Mitts, relying on McMorran’s promise to pay him, has lost his right of action against Boynton, the plaintiff is .entitled to recover.”
There was testimony in the case which authorized these ■requests, and they should have been given.
The circuit judge, we think, misconceived the case as made by the testimony. If the testimony showed only that Mc-Morran promised to pay Boynton’s indebtedness to Mitts when he received certain moneys from Pittsburgh which be longed to himself, the promise would have been collateral,, and void under the statute of frauds. But there was evidence which tended to show that Boynton had placed in, defendant’s hands a fund or means for obtaining money belonging to Boynton, and, at Boynton’s request and by the-consent of Mitts, defendant promised Mitts to pay him the debt which Boynton owed him out of the money which should be received by him belonging to Boynton. This would be an original promise, and not within the statute of frauds. The whole contract was assigned to defendant by Boynton as-security for advances, and, as to the surplus, he would be-indebted to Boynton. His promise to Mitts, at Boynton’srequest, was not a promise to pay Boynton’s debt to Mitts, but a promise to Mitts to pay a debt which he owed to Boynton to him, so far as such surplus was concerned, to the extent of $62.30. Welch v. Kenny, 49 Cal. 49; Berry v. Doremus, 30 N. J. Law, 399; Crosby v. Jeroloman, 37 Ind. 264; Crim v. Fitch, 53 Id. 214; Runde v. Runde, 59 Ill. 98; Balliet v. Scott, 32 Wis. 174; Buchanan v. Paddleford, 43 Vt. 64; Andrews v. Smith, 2 Cromp. M. & R. 631; Clark v. Hall, 11 N. J. Law, 78; McCray v. Madden, 1 McCord, 486; Prather v. Vineyard, 4 Gilm. 40; Farley v. Cleveland, 4 Cow. 432; Antonio v. Clissey, 3 Rich. 201; Putney v. Farnham, 27 Wis. 187.
In so far as the agreement made at the time the order was-delivered to the defendant is in writing, such writing must control. That requested the defendant to pay Mitts $62.30-out of any funds which should come into his hands from the Pittsburgh account for ladders outside of his bill. There is-no pretense that Boynton ever changed this request, and it is quite unlikely that defendant would have made a promise so-different from its terms as to promise to pay the full amount of the $62.30, regardless of whether there should be sufficient to pay his bill against Boynton or not. This order is dated December 27, 1877, and it is plain that nothing could be- ■ charged against the fund after that date, save the expenses ■ of the litigation, and time spent and disbursements rendered necessary to collect the debt, which would be to the detriment •of plaintiff’s claim.
The plaintiff claimed that he had introduced proof which tended to show that, allowing all legitimate items in defend•ant’s bill properly chargeable against the fund, there was still an overplus which should be applied to the payment of plaintiff’s claim, and he contended that there was sufficient overplus to pay the whole thereof. It is in this view of the ■case that the above instructions requested by him were proper to be given.
It was also claimed by plaintiff’s counsel that the only items the defendant could properly charge against the fund ■in question were those which defendant advanced to enable Boynton to fulfill this contract for ladders, and that his account for other items should not be included in his bill. This would depend upon the contract between Boynton and defendant, and the intention of those parties. It was a subject-matter of inquiry, and the evidence as to what items were intended to be included in the bill referred to in the order should have been submitted to the jury as a question -of fact to be ascertained by them.
It was also claimed, and plaintiff offered to show, that ■other contracts had been assigned to defendant by Boynton to secure his indebtedness to defendant. If he could show that such contracts were assigned, and that defendant collected or received anything thereon, it would be admissible to do so; but if nothing was received from such sources, it would be immaterial to prove the assignment of other contracts.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Campbell, O. J.
Plaintiff fell when leaving one of defendant’s trains, and had his foot crushed. He sued for damages, and the court refused to allow him to recover, because he was held to have been contributory by negligence to the injury. The case comes up on error, and he claims he had a right to have the jury pass on the facts.
In such, a case the plaintiff has a right to have his own side of the controversy assumed to be true, and it cannot be affected by counter-proofs. There was in this case some conflict on material facts, and on the argument, through inadvertence, allusion was made more or less to defendant’s proofs.
Taking plaintiff’s case as he and his witnesses present it, he and several other persons were in the smoking car of a regular passenger train, having tickets for Diamond Lake, in Newaygo county. Just before reaching that place, it was called. Plaintiff sat within four or five feet of the door, and, as soon as the train stopped, he rose and moved out, preceded by one person and followed by two others. On reaching the car door he went out, and down the steps on the platform side, and when he stepped off he fell. He testified that his coat was caught or held by something or somebody, and that threw him down. The other persons who followed him got off after he did, on the other side, safely. The person who preceded him also got off safely on the same side, and is not certain whether the car had then started. All testify that they got out and off as fast as they could. When plaintiff got off the cars were moving, and there is a very great conflict of testimony how fast they moved. The conductor was behind plaintiff, on the same steps, and got off with or after him. One of defendant’s witnesses said they came off together, and it seemed to him as if the conductor was holding him on.
In considering the particular question before us, it must be assumed that all these parties moved immediately on the stopping of the car, and got out as fast as they could, and that the cars moved on before they could get off. There is more or less testimony about minutes, and similar divisions of time; but they were not timed by any watch, and must be taken in the popular sense, which does not indicate any particular number of seconds. And the question is simply whether a person near a ear door, who is warned to get off, and endeavors to do so as soon as he can', and steps off the cars, which have started in that brief interval, is necessarily negligent. Their speed was in some controversy.
In order to make him so, he must, as in all other cases, decide upon facts as they appear, as a man of ordinary care would do under the same circumstances. It is not right of any passenger to run evident risks to his safety; but the rule of prudence binding on him must be that which, under just such circumstances, would restrain all men of ordinary prudence. If the mind of an ordinarily prudent man would be impressed with a belief of danger, he has no right to incur the danger. If the danger would not be apparent, he is not negligent in acting on that assumption.
We cannot be aided very much by precedents, where a few differences in the surroundings may make a great difference in the dangers. The principle stated is what all courts agree on, and it must stand as the rule to guide us.
The conduct of a person under such circumstances cannot be severed from the circumstances themselves. According to the case made by plaintiff, the defendant had undertaken to. land him at Diamond Lake, with sufficient warning and suf-. ficient stoppage to enable him to get off from the train with-, out hurrying or perplexing him. He had therefore a right to expect he could do so. The cars began to move before there was time to get off conveniently, but while he was on the way from his seat to the steps, and as he was coming out,, or just after. That circumstance would have a tendency to. disturb and hurry him. It would be absurd to expect of a person, thus suddenly called on to decide, the same coolness and calculation that an uninterested by-stander might manifest.
It is plain enough that the motion of a train may be such as to indicate danger to any sensible person. But cars do not, instantaneously reach fast motion, and a person who has been. asked to alight, and is proceeding to do so, may not unreasonably assume it is safe, unless his senses tell him plainly to the contrary. The mere fact that other persons do as he does is not necessarily enough to justify him in what he does. But the fact that others, warned as he was, are moving in the same way to get off, and do get off safely after he got off, has some bearing on the actual speed of the cars and the danger of the attempt. If the conductor, although with the best of motives, held his clothes as he was stepping off, the jury might very well have regarded that, as plaintiff considered it, as an active cause of the result in jerking him. down; and there was testimony from which the jury might have come to that conclusion.
We do not think that the court below had a right to determine that the speed of the cars was such that plaintiff was bound, as he was situated, to refrain from getting off, or that the getting off unhindered would probably have caused the mischief. The case should have been submitted to the jury.
The judgment must be reversed, and a new trial granted.
The other Jastices concurred. | [
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] |
Sherwood, J.
It is shown by the record in this case that Emma Lesser was carrying on a mercantile business in the city of Ishpeming, in January, 1885. -Her husband, Morris Lesser, took charge of her business, and acted as her agent. He had shortly before been a member of a firm at the same-place, consisting of himself and one Wisotsky, who had; failed in business, and Mrs. Lesser became the successor to the business of that firm.
A fire occurred in January, in her store, doing damage to her goods, which were insured in several different companies, of which the defendant was one. The loss against the defendant, when adjusted and apportioned, was the sum of $214.29.
On the fifteenth of January Mrs. Lesser duly assigned all her right to. the said money to Joseph Lesser, of the city of New York, in payment of her alleged indebtedness to him, and the defendant was at once notified of the assignment.
On the twenty-fourth of January the plaintiff commenced suit against Mrs. Lesser for goods sold and delivered to her (and subsequently recovered a j udgment therein against her for $2,891.32), and on the same day made and filed an affidavit for a writ of garnishment against the defendant, as garnishee of Emma Lesser. The writ was directed to the sheriff of Wayne county, and was by him returned served—
“ Upon Fireman’s Fund Insurance Company, by serving James J. Ciarle, its attorney, the garnishee therein named, by shoiving the same to James J. Ciarle, and at the same time delivering to him a true copy of said writ,” etc.
An answer, purporting to be by the garnishee, “by Thomas S. Ohard, manager,” was filed in the case, February 23, 1885. On February 12 the plaintiff’s attorney filed a demand for “ a trial of the statutory issue framed in the above-entitled cause against said garnishee.”
On the second of March following an ex parte order was obtained, requiring Joseph S. Lesser, of the city of New York, to appear within four months from the date thereof> “and show and maintain his right under ” the assignment to him by Emma Lesser “ of the property in the hands of the said garnishees.” The order provided for personal service upon said Joseph S. Lesser, or six weeks’ publication in a newspaper of the county.
On the fourteenth day of August, 1885, a special motion was made by the attorney for the garnishee to dismiss the proceedings and discharge the garnishee, because—
“ 1. The affidavit for the writ does not identify the indebtedness sworn to with that sued upon.
“2. It does not describe the. garnishee as a corporation, but proceeds against it as such.
“ 3. It does not state that the garnishee is a non-resident or foreign corporation, and yet the writ is directed to tho sheriff of Wayne county for service, and the only service made was made in said county of Wayne.
“ 4. The writ purports, by the return indorsed thereon, to have been sewed by serving it upon a person described as the garnishee’s attorney.
“ 5. The disclosure of the garnishee was not filed on or before the time appointed therefor in said writ, and no further order was made for such examination of the garnishee, as provided by law in such case, nor was the time enlarged for appearance and disclosure,
“ 6. The cause against the garnishee was not placed on the docket for trial, nor notice thereof in writing given to the garnishee, at either the March or June, A. D. 1885, terms of said court which were held, and although judgment was directed against the principal defendant at said March term of said court, to wit, on the eleventh day of March, 1885; and the said principal defendant did not, within two days after the rendition of said judgment, serve upon the garnishee notice of motion for a new trial, or of his intention to remove the cause to the Supreme Court; nor was any jury ever demanded by said garnishee in said cause, nor was said cause against said garnishee ever regularly continued at any term of said court, but said cause has remained since the rendition of said judgment, on the eleventh day of March, A. D. 1885, without having been placed on the court docket for tri¡ 1, or being continued to the present time, without the eausing of the said garnishee.”
The cause was tried on the fifteenth day of April, 1886, and the plaintiff obtained judgment against the garnishee for $214.29, the amount of the insurance. The defendant brings error, and asks a review of the rulings and charge of the court.
It is claimed, first, the court erred in refusing to dismiss the proceedings in the case on motion made for that purpose. The second ground of the motion is urged with much earn-estness by counsel for defendant. This case involves proceedings purely statutory, — a clear' departure from the common law, and in which no presumptions can be indulged to support jurisdiction. At the common law, the debtor had the privilege of choosing who should be his creditor. Under this statute of garnishment, he is deprived of that privilege. 'The law steps in between the two, and says another shall be his creditor, although the latter may be his worst enemy; .and the debtor is also compelled to submit to the vexation and expense of a suit, in which the advice and counsel of a good lawyer must be secured, in order to avoid the hazard of a double liability. The first creditor is always on the alert to -see that his claim is legally transferred to the second, which he has a right to do; and it is not unfrequently the case that these proceedings are resorted to for the purpose of forcing payment of a claim in violation of the rights of parties, who •find themselves compelled to submit because of the danger and expense of a contest.
If a creditor seeks to collect his debt under this statute, the reasons are abundant and manifest why he should pursue -the statute strictly, and under the most strict construction. The proceeding is founded upon the affidavit required by the statute. If this affidavit is defective, the court acquires no jurisdiction. It is not a case in which jurisdiction can be acquired by voluntary appearance of the parties, or aided by presumptions. Neither can any substantial requirement of the statute be waived in any of the proceedings by the debtor garnished, because others have an interest in the result quite •equal with those of the parties to the suit. Weimeister v. Manville, 44 Mich. 408; Conway v. Ionia Circuit Judge, 46 Id. 28; Iron Cliffs Co. v. Lahais, 52 Id. 394.
The affidavit in this case reads as follows:
■“ STATE OF MICHIGAN, COUNTY OE MARQUETTE, SS. — THE CIRCUIT COURT FOR THE COUNTY OF MARQUETTE.
“ Benjamin J. Ettelsohn, Plaintiff, v. Emma Lesser, Defendant.
“Benjamin J. Ettelsohn, being duly sworn, deposes and says that he is the above-named plaintiff, and that a personal action, arising upon contract, has been commenced, by declaration, by the above-named plaintiff against the above-named defendant, in the circuit court for the county of Marquette.
“This deponent further says that the said defendant is now justly indebted to the said plaintiff in the sum of two thous- and dollars over and above all legal set-offs, upon express contract, for the recovery of which said suit is brought; and that the said plaintiff is justly apprehensive of the loss of the •same unless a writ of garnishment issue to the Fireman’s Fund Insurance Company, hereinafter riientioned.
“And this deponent further says that he has good reason to believe, and does believe, that the Fireman’s Fund Insurance Company is indebted to said defendant; and further deponent says not. B. J. Ettelsohn.
“ Sworn to and subscribed before me this twenty-fourth day ■of January, A. D. 1885.
“John P. Outhwaite,
“Notary Public in and for said County.”
It will be noticed that the proceedings in this and in the principal suit were had in the circuit court for the county of Marquette. The party named in the affidavit is “Fireman’s Fund Insurance Company,” and nowhere else in this or in the principal case do we find that name used. Whether this ■company was a corporation, domestic or foreign, or a copartnership ; whether it was located in this State, or in any other state or country; or whether it ever did any business, or ever had a legal existence, even, — the affidavit wholly fails to inform us.
We think the affidavit is fatally defective. It does not show that the company named as garnishee was a party amenable under our laws, and this was essential before the writ could be issued. The statements and description given in the writ can be considered only so far as they correspond with those given in the affidavit. The disclosure could have no effect, so long as no garnishee was described in the writ. The court had no jurisdiction in the case. This being the fact, no other questions raised will be considered.
The judgment must be reversed, and the proceedings dismissed, with costs.
Campbell, C. J., concurred with Sherwood, J.
The writ recites the commencement of a personal action, arising upon contract, in the circuit court for the county of Marquette, by declaration, and the filing of an affidavit stating, amongst other things, that affiant had good reason to believe, and did believe, “ that the Fireman’s Fund Insurance Company, a foreign corporation doing business in this State under its insurance laws, is indebted,” etc. | [
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] |
Sherwood, J.
James Davenport, on the twelfth day of December, 1863, owned 100 acres of land lying in Monroe county, and upon which he and his wife, Louisa, had lived since 1855.
The road ran east and west through the farm, leaving about 40 acres on one side, upon which the buildings were erected, and which constituted his homestead, and 60 acres on the other. At that date James and his wife gave a mortgage upon the entire 100 acres, upon which it is claimed there was due, April 21, 1886, §1,080.58. This mortgage was duly assigned to James Armitage, the complainant in this case.
On the ninth day of February, 1870, the defendant James Davenport executed a second mortgage to defendant Alfred Toll, upon the same property, which his wife, Louisa, did not sign, and upon which there was due, as claimed, $1,621.31, on the sixth day of March, 1885. Immediately after- the description in this mortgage follows this clause:
“And the said James Davenport, by these presents, selects and chooses the north 40 acres of said above-described 100 acres as his homestead, under the statute in such case made and provided.”
This mortgage was assigned by Alfred Toll to defendant Nancy D. Toll. Two other mortgages given subsequent to the Toll mortgage — one signed by James Davenport and his wife, and the other, by James alone — are shown by the record to be upon the same property; but, in the view I take of the case, it will be unnecessary to consider those further.
The bill in the case is the usual foreclosure bill, and is filed to foreclose the first mortgage. Mrs. Toll appears and answers, and asks that the complainant shall be decreed to sell the homestead to satisfy his mortgage before resorting to the parcel of 60 acres. Defendant Louisa Davenport appears and answers, and prays that her homestead be last sold to satisfy complainant’s mortgage sought to be foreclosed in this suit. Charles Toll appeared and disclaimed. James Davenport allowed the bill to be taken as confessed against him.
Proofs were taken before Judge Joslin, in open court, who, after hearing the testimony in the case, entered a decree therein that the 60 acres must be first sold to satisfy the complainant’s mortgage, and only in case of deficiency can resort be had to the homestead.
Defendant Nancy D. Toll alone appeals.
The question raised in this case is, in foreclosing a mortgage upon several parcels of land, including a homestead, can that only be sold to pay the deficiency remaining after a sale of all the other property mortgaged?
It is as much the right of the wife, either at law or in equity, to protect the homestead rights of herself and family as it is that of the husband. Dye v. Mann, 10 Mich. 291; McKee v. Wilcox, 11 Id. 358; Sherrid v. Southwick, 43 Id. 515.
The execution of a mortgage upon a homestead by husband •and wife does not operate to release the homestead right, or waive it, only to the extent it may become necessary to satisfy the mortgage. I do not think it can well be claimed that Mrs. Davenport, when she signed the mortgage, contracted with the mortgagee that her homestead only should be made liable for the mortgage debt; and I have no doubt, as between them, equity would require, on a sale of the mortgaged property, that the 60 acres should be sold first, and that the homestead should only be sold for the deficiency.
I am not able to see how Mrs. Toll’s mortgage can give her any right to have the liability of the homestead increased. •Certainly she has no contract to that effect with Mrs. Davenport, and no interest whatever in the homestead. Neither does the law create any such contract for her with Mrs. Davenport. The law which gives the homestead right is to be liberally construed and favorably regarded. Courts of equity look with favor upon the benefits sought to be accomplished by this statute.
The welfare of the family, the community, and the State are all alike interested in the maintenance of the family and the home.
I have failed to discover any reason why the law should create a new contract between Mrs. Davenport and the mortgagee, or make a contract, where one never existed, between Mrs. Davenport and Mrs. Toll. It will not do to allow any fiction or theory to subvert and destroy rights secured by both statute and constitutional provisions. But I know of no fiction or theory which will allow this to be done.
It has been expressly decided in this Court that—
“The law excludes the homestead from all remedies of •creditors in all courts, and the power of the creditor to take it against the will of the owner is absolutely subverted. There is no question left as to whether there is or should be a remedy somewhere to subject the homestead. The law has closed the door against all discussion about it.” Smith v. Rumsey, 33 Mich. 192.
The rule in equity that where a prior mortgagee holds a lien upon lands, and a subsequent mortgagee holds a mortgage upon a portion of the same lands, on foreclosure by the prior mortgagee he should first offer. for sale that part not covered by the junior mortgage, has no application to the present case, for the reason that the land covered by the first and not by the second mortgage is the homestead of the mortgagors, which is not subject to the rights of or remedies given to creditors, only so far as the wife has seen fit to convey. The rule does not apply to eases where the lands omitted in the junior mortgage “are excluded from all remedies of creditors in all courts.”
If we were to adopt the rule contended for by counsel for Mrs. Toll, the homestead right would be of little value, indeed, to the wife and family of a dishonest or unfortunate husband. A wife, to gratify the requirements of a mortgagee, might be quite willing to allow her homestead to be placed under a mortgage, with other lands, worth four or five times the amount for which the mortgage was given, while she would utterly refuse so to do if the whole amount could be thrown upon her homestead, against her consent, by reason of some contract her husband could afterwards make without consulting her. The practical operation of such a rule as is contended for is very well illustrated by the following extract from the brief of defendant’s counsel.
“ Had, James and Louisa joined in a mortgage of the entire 100 acres for say $1,500, the value of the homestead, defendant James might the next day, without the consent of his wife, and against her protest, mortgage the same property for as near the full value of the remaining 60 acres as he could obtain. The second mortgagee could force the first to sell the homestead for his claim, while the second mortgagee sold the remainder; and the wife, who had refused consent and protested against the second mortgage, would, with her family, be driven from her home.”
Thus would the homestead statute, with all its intended benefits, be clearly subverted.
By the constitutional provision it was never intended that the homestead of the family should be at the mercy of every creditor of a husband who could procure his wife’s signature to a mortgage which should cover the homestead with other property, in any such way.'
In signing the first mortgage Mrs. Davenport waived nothing except as to that claim alone. Vermont Sav. Banh v. Elliott, 53 Mich. 256.
The junior mortgagee had full notice of the homestead interest at the time he took his mortgage, and his rights, and those of his assignee, are the same as they would have been had the homestead not been included in the first mortgage, and no other or greater.
I think the decree at the circuit was right, and should be affirmed.
Chahplin and Morse, JJ., concurred.
Talcott E. Wing, counsel for Mrs. Davenport.
In this case it is held that a surplus of $1,500 arising from the sale of a mortgaged homestead incapable of division, and exceeding in value $1,500, is exempt from execution for the husband’s debts, and should be applied on a second mortgage given after the levy of such execution. | [
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] |
McDonald, J.
The defendant was convicted on the charge of possession of one quart of intoxicating liquor on June 17, 1927.
Isaac Beverly is a farmer living in Monroe county, Michigan. One Walter Krueger was his hired man, and lived on the farm with him. On June 17, 1927, a man known as ‘ ‘ Scotty, ’ ’ accompanied by an officer, went to the Beverly farm and purchased one quart of moonshine whisky from Krueger, On the following day, June 18, 1927, officers searched the Beverly premises and found one gallon of moonshine whisky. Beverly was arrested, charged with the possession of the one gallon on the 18th. Krueger was arrested, charged with the sale of one quart on the 17th. On the trial in the circuit court, Beverly was acquitted. Krueger was a witness for him. He testified that Beverly had no knowledge of the sale or of the presence of liquor on his premises. Immediately after Beverly’s trial, Krueger entered a plea of guilty to the salq on the 17th, and was given a prison sentence. Before being taken away, he made a confession to the officers, in which he stated that he had testified falsely in the Beverly trial, that in truth Beverly had possession- of the liquor as charged by the people, and that in making the sale on the 17th, he was acting for Beverly. The prosecuting attorney then caused a warrant to issue charging Beverly with possession of one quart of whisky on June 17th. On the trial for this offense, he-was convicted. He says the conviction should be set aside because his acquittal on the charge of possession on June 18th is a bar to his prosecution for possession on the 17th. This defense was raised by plea and by motion to quash the information and discharge the defendant,
' The question involves a consideration of the law of former jeopardy as applied to the facts in this case. The decisions of the courts are not harmonious, probably due to the fact that the tests commonly adopted are by no means infallible. But all hold to the general rule that one who relies on former jeopardy as a bar to a prosecution must show that the former conviction or acquittal was for the identical offense charged in the second indictment. In 8 R. C. L. p. 143, it is stated:
“The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof, against a second jeopardy, apply only to a second prosecution for the identical act and crime both in law and fact for which the first prosecution was instituted.”
To determine whether the first and second offenses are identical, the following test is commonly used:
“One test is to ascertain whether the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first, and if this is the case, then the crimes are assumed to be identical. * ' * The safest general rule is that the two offenses must be in substance precisely the same, or of the same nature or of the same species, so that the evidence which proves the one would prove the other.” 16 O. J. p. 264.
Let us apply this rule to the facts of the instant case. Mr. Beverly was acquitted on a charge of unlawful possession of one gallon of intoxicating liquor on the 18th of June, 1927. Time was not an element of the offense. A conviction would have been warranted if the prosecution had shown that he had possession on the 17th. The quantity of liquor possessed was not an element of the offense. It was just as much a crime to have one quart as to have one gallon. So, if on the former trial the evidence had shown that the defendant was in possession of one quart of liquor on the 17th of June, it would have been sufficient to warrant his conviction on the charge of being possessed of one gallon on the 18th. The second prosecution was for possession of one quart on the 17th. As we have shown, the facts necessary to convict on this second trial would have convicted on the first trial. It follows, under the rule commonly used as stated in Corpus Juris above quoted, that the offenses are identical and therefore the first prosecution is a bar to the second.
The facts in this case are that the defendant had a quantity of liquor in his barn. How much is not shown, but let us suppose that he had five gallons, and that he had it there for one week. The prosecution could not divide the time that he had possession or the amount possessed and thus create separate offenses. If the defendant could be convicted and compelled to pay a penalty for every day that he was in possession, he would have to pay seven penalties for a single offense.
Having liquor in his possession for several days was all one transaction; it was a continuing offense as long as possession existed and for such an offense the statute provides but one penalty.
It is our conclusion that the defendant’s acquittal in the first case bars his prosecution under the present information. .
The judgment of conviction is reversed. The defendant will be discharged.
North, C. J., and Fead, Fellows, Wiest, Clark-, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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Clark, J.
Plaintiff’s daughter, since her birth, nearly three years, has been with defendant. Habeas corpus was instituted to recover the child. The matter was referred by the court to Hon. Edward Pokorny, friend of the court, whose report is “that the present custodian, Mrs. Mae Holton, and the mother of the child, Mrs. Alberta Sarazin, are suitable and satisfactory persons to assume the responsibility of the upbringing of this child.” He also found that the home of each party was satisfactory. In these circumstances, he recommended that the child be awarded to plaintiff, the mother. The trial court dismissed the writ. Plaintiff brings certiorari. The evidence of practically equal fitness of the parties to have custody of the child, and of the character of their respective homes, establishes as a matter of law the correctness of the finding and report of Mr. Pokorny. The statute, 3 Comp. Laws 1915, § 13955, as amended by Act No. 344, Pub. Acts 1921, here controls, quoting:
“The father or mother of the minor, and if one of them be deceased, then the survivor thereof’ being respectively competent to transact their own business, and otherwise suitable shall be entitled to the custody of the person of the minor and to the care of his education.”
And see Partch v. Baird, 227 Mich. 660, and 230 Mich. 615; Greene v. Walker, 227 Mich. 672.
Reversed. Remanded, with direction to enter judgment for plaintiff.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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McDonald, J.
This bill was filed to foreclose a land contract for the sale of a farm in the township of Augusta, Washtenaw county, Michigan. The consideration was $12,600. A down payment of $4,000 was made. The balance was to be paid in semiannual payments of $250 each with interest at 6 per cent, except as to amounts in default, which were to bear interest at 7 per cent. The contract contained the usual acceleration clause. At the time of the sale, the plaintiffs desired to remain on the farm and rented it by written lease for one year at a rental of $200, which was paid in advance. They are still in possession as tenants on the same terms. The contract was executed April 19, 1926. The first payment on the principal came due in October. It was paid. When the second payment became due in April, 1927, the defendant deducted the rent, which he claimed was due in advance, and tendered payment of the balance. The plaintiffs refused to accept it, and began proceedings before the circuit court commissioner, where they recovered a judgment. The defendant paid the amount found to be due. Hostilities were resumed when the next payment became due, in October, 1927. The plaintiffs refused to pay the rent, and the defendant insisted on his right to deduct it from his payment. The result was a declaration of forfeiture by the plaintiffs and this suit to foreclose the contract. On the hearing, the circuit judge found that the defendant was in default and under the acceleration clause of the contract determined that the whole of the unpaid balance of the purchase price was due and payable. He decreed a sale of the property and gave the defendant 30 days in which to redeem. The defendant has appealed.
The court was wrong in his determination of the amount due. The acceleration clause of the con tract was valid and binding, but should not have been applied, because there was an honest dispute over the amount which the defendant was required to pay. He claimed that the rent for 1927 was due, and that he had a right to deduct it from the payment as he had done the previous year. The first year’s rent was paid in advance. Thereafter the plaintiffs held over from year to year without any different agreement as to time of payment. The defendant was not unreasonable in insisting that they were holding over on the same terms as in the original lease and that he had a right to deduct the rent from the payment. In view of these facts, it would be inequitable to enforce the provision of the contract providing for acceleration of payments. Wilcox v. Allen, 36 Mich. 160.
With the acceleration clause eliminated, there is no difficulty in determining the exact amount due.' The bill was filed December 22, 1927. It is conceded that on January 17, 1928, defendant made a lawful tender of $646.09, the total amount due at that time. This tender was renewed during the hearing. In his brief, the defendant expresses a willingness to pay the amount due on the contract up to the time of the decree of this court. He should be given that privilege. From this amount should be deducted the unpaid rent, on which the plaintiffs will be charged with interest at 5 per cent. As a proper tender of $646.09 was made on January 17, 1928, the plaintiffs are not entitled to interest on that amount from the date of tender. On all other unpaid amounts, the defendant will-pay interest at 6 per cent, from their due dates. A decree will be entered in this court in accordance with this opinion. The defendant will have costs.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
North, C. J.
This is an action in replevin by which the plaintiff, a Michigan corporation, seeks to repossess a house which it sold to the defendant Stanley W. Nichols. The building is described as a “sectional house-size 20 x 24,” and it was placed upon cedar posts set about three feet in the ground and on a lot which the defendant Nichols was at that time purchasing under a land contract from a Dr. McCandless, the latter not being a party to this litigation. This house is thus further described:
“The inside partitions were built in — carpenter built' in — papering, sheetrock, wiring, electric light fixtures. It comes in sections four feet wide and eight feet long; you merely take the sections wherever you want to place the house and bolt them together.”
After the house was placed upon the lot, Nichols assigned his interest in his land contract to the defendant Casper C. Johnson, but before purchasing Johnson learned by inquiry that Nichols still owed substantially $1,200 to the plaintiff on the purchase price of the house. The plaintiff claims that it advised Johnson at the time that the purchase by Nichols was on a contract which provided the vendor should retain title of the chattel sold until payment was made. This is denied by Johnson. Johnson gave a subcontract to Charles W. Morris, who was in possession when suit was started. Demand of possession was made on Morris and the writ of re plevin was served on him. At the trial of the case, Morris, as a witness for the plaintiff, testified:
“I am not appearing as a defendant in this suit and am not represented in the case.”
While Morris had no knowledge of plaintiff’s title-retaining contract before this suit was started, upon being advised thereof he discontinued making payments and in time vacated the property and abandoned any claim of an interest in the subject-matter of this suit. Thereafter Johnson, who in the meantime had entered his appearance and given a bond to release the house from the possession of the sheriff, proceeded to sell the place to another party. Other than hereinbefore indicated, there is little if any dispute relative to the facts involved. At the conclusion of the proofs the plaintiff moved for a directed verdict, as did also the defendants Nichols and Johnson. Under the direction of the court the jury rendered a verdict in favor of the plaintiff, and it is before us for review on writ of error.
Two questions are presented:
(1) The defendants claim that a verdict should have been directed on their motion on the ground that the proof conclusively shows they did not have possession of the house in question at the time suit was started; and (2) that the subject-matter of this suit is real property rather than personalty, and therefore is not subject to replevin.
The undisputed proof shows that the defendant Nichols was not in possession at the time this suit was started. He had never occupied the house. He did not claim any interest in the subject-matter of this litigation, nor is there any proof that he had made any such claim since he sold to Johnson two months before suit was instituted. His motion for a directed verdict on the ground he was not “in possession at the time this suit was started,” should have been granted.
A like contention made by the defendant Johnson is not well founded. Through his vendee he asserted an interest in the property which plaintiff sought to replevin, he gave a bond by means of which he secured possession from the sheriff, and before the case was tried Johnson again sold the property to a third party. That Johnson claimed both an interest in the property and the right to possession is too clear for controversy. He cannot now take an inconsistent position and be heard to say he neither had possession nor claimed the right thereto.
The only remaining question is whether, under the circumstances of this case, this “sectional house” set up on cedar posts was personal property and subject to replevin. The circuit judge stated that “the claim of tona fide purchaser without notice” could not be made by Johnson. We think' the record sustains this determination. The contract under which this house was sold by plaintiff provided:
“The seller shall remain the sole owner of the * * * property and shall retain the title thereto until all of the deferred payments * * * are fully paid. If default be made in the payment * * * the seller shall thereupon have the right to enter the premises of the purchaser with or without force, demand or process of law, and take possession and remove said property without liability for any damage by reason of taking possession. * * *
“It is further understood and agreed that the property * * * shall at all times be considered as personal property belonging to the seller and removable by the seller as such until his contract shall have been fully determined and the indebtedness above described fully paid.”
This “house” in fact was designed by the builders as a garage. There is testimony that it could be removed without damaging the lot; and evidently the circuit judge so found. The owner of the fee to the land is not a party to this suit and so far as the record shows is asserting no right in the property. Johnson as the .contract purchaser is not an innocent party purchasing without notice. Under these circumstances the building must be held to be personal property and subject to replevin. Many cases will be found sustaining this holding. That of Page v. Urick, 31 Wash. 601 (72 Pac. 454, 96 Am. St. Rep. 924), is very similar in the facts involved. See, also, Commissioners of Rush County v. Stubbs, 25 Kan. 322. The general rule is thus stated in 34 Cyc. p. 1366:
“Since the title to land cannot be litigated in an action of replevin, the general rule is that replevin cannot be maintained for the recovery of possession of a house attached to the freehold. However, a house, which by the express contract of the parties, or by implied agreement, is treated as personalty, may be the subject of replevin; and where a house has been severed from the realty, the owner may maintain replevin for its recovery” — citing Cutter v. Wait, 131 Mich. 508 (100 Am. St. Rep. 619); Michigan Mutual Life Ins. Co. v. Cronk, 93 Mich. 49.
See, also, Myrick v. Bill, 3 Dak. 284 (17 N. W. 268); Brearley v. Cox, 24 N. J. 287; Weathersby v. Sleeper, 42 Miss. 732; Waters v. Reuber, 16 Neb. 99 (19 N. W. 687, 49 Am. Rep. 710); McDaniel v. Lipp, 41 Neb. 713 (60 N. W. 81); Hartwell v. Kelly, 117 Mass. 235; Central B. R. Co. v. Fritz, 20 Kan. 430 (27 Am. Rep. 175); and Fitzgerald v. Anderson, 81 Wis. 341 (51 N. W. 554).
The judgment entered in the circuit court against the defendant Johnson is affirmed with costs of this court. As to the defendant Nichols, the judgment of the lower court is reversed with costs of this court against the appellee, and the case remanded to the circuit with directions to set aside the judgment therein entered against Nichols and to enter one in his favor.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Chahplin, J.
Complainant seeks the rescission of a certain agreement, entered into between himself and defendant,, and the reconveyance of certain real estate, and retransfer of certain personal property, to him, on account of the alleged fraudulent representations and conduct of defendant.
The bill of complaint was filed on the twenty-second day of September, 1885. It states that on the eighteenth day of September, 1885, complainant was the owner of an undivided half interest in lot 12 of Barnard’s subdivision of lot 1, block 242, in the city of Lansing, with the appurtenances, which consisted of a mill building, used and operated as a custom feed mill, with machinery and fixtures complete; that he operated this mill in partnership with one Joseph Ingersoll; that the property was incumbered by a mortgage for $550, and was worth over the incumbrance $625; that he owned personally property described particularly in the bill;, that the defendant, Frederick B. Piatt, was on that day, and prior thereto had been, the owner and possessor of 80 shares-of the capital stock of the Capital City Manufacturing Company, a corporation organized and doing business under the laws of the State of Michigan, the par value of which shares-was $25 each, and upon which said Piatt had paid into the-corporation $1,000; that Piatt had been employed as foreman in the shops of the corporation at a salary of $800 a-year; that the corporation had been for more than a year engaged in manufacturing in said city, employing a large number of men, and engaged apparently in a safe, prosperous,, and continuing business; that it owned certain buildings and machinery, stock, lumber, and manufactured articles, and leased other buildings, lands, and machinery.
That defendant, on said eighteenth day of September, and on many days prior to that day, falsely and fraudulently represented to complainant that the Capital City Manufacturing Company was then and had been doing a successful and prosperous business; that said shares of stock had earned him in one year a dividend of about $180; that said corporation was hard up for money to enable it to push its business, but that this want would be met by an assessment of stockholders, or by an increase of capital stock; that said company was all right, and its stock worth par; that it owned the plant and realty, and machinery operated by it, and all of said plant; that it. would continue in business; that complainant could have the position said Piatt held as foreman for the corporation, which position complainant was competent to fill, and, to assure complainant of this fact, took him to said corporation’s mill, and made, on said eighteenth of September, agreements with the brother of said Piatt, who-was the superintendent ‘ for the corporation, and whose-province if was, among other things, to employ men for • the-company, to give to complainant the position of foreman in the employ of said company, at wages of two dollars a day for a short period, and two dollars and a half for the full time of one year.
That, relying on these representations, complainant was induced to and did agree with defendant to transfer to him, in exchange for 80 shares of the stock of said corporation, the real estate hereinbefore mentioned, and personal property enough to be of the full value of $1,000; that he was told by the defendant that it would, under the by-laws of the company, require a period of two weeks before said stock could be transferred on the books of the company.
Complainant then states his agreement with the defendant,, particularly, as follows: .
“Your orator further shows to the court that his understanding and agreement with said defendant was as follows: He (your orator) agreed to deed to said Piatt his undivided one-half interest in said real estate hereinbefore described,, subject to tbe mortgage aforesaid, for the sum of six hundred and twenty-five dollars; to transfer to said Piatt his (your orator’s) interest in the stock and material on hand in your orator’s said mill for fifty-two and 50-100 dollars; his interest. in unearned insurance premium, agreed to be in value sixteen dollars; his interest in wagon, for ten dollars; in a new extra mill-stone, for twelve and 50-100 dollars; a note, to be made by the said Joseph Ingersoll, for the sum of two hundred and fifty-nine dollars; and^nough of the book accounts and bills receivable of said Harris & Ingersoll to make the full and true sum of one thousand dollars.
“ And your orator says that the said Piatt, defendant, by said agreement was to transfer to your orator, and procure to be transferred on the books of said corporation, eighty shares of the capital stock of said corporation, upon account of which the said Piatt had paid one thousand dollars, and to give up to your orator his (defendant’s) place as foreman in said company’s employ, which employment of your orator had been agreed to by the said superintendent of said company, the brother of defendant; that no certificates of stock were ever issued by said corporation; that it was further understood and agreed by and between your orator and said Piatt that, in consideration of the time it would take to transfer said stock, the deed of the real estate of your orator should be executed by your orator and his wife; and deposited with some third person, to be delivered to said defendant only upon the production by said Piatt of a certificate from the secretary of said company, showing a transfer of said stock to your orator upon the books of said company; and it was expressly understood and agreed that if, during the said interim, anything should occur to said company affecting injuriously its standing or the value of its stock, your orator might, at his option, refuse to proceed further with said transfer and bargain, and the agreement was not in that case to be carried out or completed.”
Further, complainant says that arrangements had been fully made by which complainant was, on September 21, to begin work as foreman for the company; that in pursuance with such agreement, on the eighteenth of September, himself and wife joined in executing and acknowledging a warranty deed of the real estate hereinbefore described to defendant, which was deposited with Mr. J. B. Humphrey, and with it was deposited Mr. Humphrey’s written memorandum, which provided in substance for the delivery of the deed to defendant upon the transfer of said stock, or payment of money received therefor, should any of the directors of said company, or stockholders, desire to purchase the same, under the by-laws of said company;. that, upon depositing the deed, he allowed defendant to go into possession of the personal property so far as he could do so; that on the same day, September 18, complainant left Lansing, and did not return until Sunday evening, the twentieth of September; that he went to the works of the company on the twenty-first of September to enter upon - his duty as foreman, and was then informed by stockholders of the company that the stock of the corporation was not all right, as represented by defendant, and was not, and had not been for a long time, worth par; that it did not and never had owned its plant at Lansing, but leased the larger and more valuable property used and occupied by it.
Complainant charges, on information obtained from the same and other sources, that, at a meeting of the stockholders of the corporation, held on the evening of the eighteenth of September, and after complainant had executed and deposited said deed, a resolution was adopted, which provided for the transfer of the entire property interest of said corporation, excepting bills receivable, to certain individuals, at a price which was 60 per cent, of the invoice value thereof, and provided for the discontinuance of business operations by said corporation; that on the nineteenth of September said bargain was completed, and property, materials, and fixtures of said corporation transferred by it, which sale and transfer was completed at about 1:30 p. m.
That such sale and transfer had been talked about by the members for two weeks before it was accomplished, and defendant had all the time been informed • thereof, and was ■present at the meeting of said corporation held on the evening of September 18, and knew of the action of such meeting, and took part therein, and well knew of said transfer and sale by said corporation of its property and material, as made; that the debts of the corporation largely exceeded in amount the value of its bills receivable, and that it had retired from business, and would and had ceased to manufacture as before; that said corporation was in fact dead, and its stock of little, if of any, value.
That the defendant, well knowing all these facts, at a meeting of the board of directors held on the afternoon of September 21, procured the assent of said directors to have immediate transfer of the said 80 shares of stock on the books of the company, procured from the secretary of the corporation a certificate of such transfer, and took such certificate to the said J. B. Humphrey, in whose custody said deed was, and received from him the said deed, and sent the same to the register of deeds of Ingham county, who received and entered the same for record; that on the twenty-second of ¡September complainant executed and offered to deliver to defendant an assignment in writing of said 80 shares of stock, and demanded from him a deed of the realty and possession of the personalty, which he refused.
The defendant answered fully, and denied fully the false and fraudulent representations stated and charged in the bill of complaint.
To the charges contained in the bill, as to what occurred at the stockholders’ meeting after the deed was deposited, he answers, and says:
“Further, the defendant says that at a meeting of the stockholders, held on the evening of September 18th inst., defendant gave notice, in accordance with the by-laws, of his desire to sell and have transferred to complainant eighty shares of his stock, and asked the stockholders to waive their option and transfer the stock, which was not done, for the reason that there were some who doubted the authority to make such waiver, and held the matter under advisement until the morning of the nineteenth, when said stockholders’ meeting was to reconvene, and at which time the stockholders’ rights were waived, and a resolution was passed waiving the option, and directing the secretary to make the "transfer; whereupon the said Humphrey, being officially notified and satisfied that the conditions on which the deed was to be delivered had been fully complied with, delivered to defendant complainant’s deed for said mill property, which' •deed is duly recorded in the office of the register of deeds for Ingham county, Michigan; and defendant is now, and has been since September 16, in full possession of said mill and personal property, save as he is now restrained by the inj unction of this court.
“The defendant, further answering, says that it is true that at a meeting of the stockholders of said corporation, ■held on the evening of September 18, a proposition was made by part of the stockholders to purchase the assets of said •corporation, and that such proposition was accepted by the stockholders on the nineteenth, said sale being at the price •of sixty cents on the dollar of the appraised value of said corporation’s assets; and that, at said meeting, this defendant was present, and voted his forty shares of the capital stock, but that said Harris was not present, nor were his eighty shares of stock voted at said meeting.
“ Defendant, further answering, says that, at the time of the trade with said complainant, he had no knowledge of the intention of any stockholder to sell -the assets of said corporation, and that the first he heard of it was at the meeting on the evening of September 18, and after the trade with complainant had been completed, and his deed to defendant deposited with said Humphrey, and defendant’s order for the 'transfer of the stock to said complainant had likewise been ■deposited with said Humphrey, by which said complainant would get the eighty shares of stock, or, if the company or stockholders chose to take the stock, complainant would get the price thereof; so there was nothing to do to complete the trade, — the delay with the papers in said Humphrey’s hands being merely to await the action of the siockholders, which ■would determine, not whether complainant and defendant traded, but whether the corporation would take the stock, or let complainant have it, as assignee of defendant’s rights in the eighty shares.
“Defendant again says that,- until the evening of the •eighteenth of September, he had never heard of an intention on the part of the stockholders to take any other action than the making of an assessment, and that the proposal to sell out was a surprise to defendant; and he further says that it •is not true that said corporation’s stock is valueless, but that ■the company still maintains its corporate existence, and will continue to do so, and that it has large and valuable franchises, and if the sale made by it is carried out, after it pays its debts, there will be an overplus to the credit of the stockholders ; denies that the board of directors of said company, at a meeting on the twenty-first day of September, assented to the transfer of the eighty shares of stock, and affirms that the consent of the corporation to the transfer of the stock, and the only consent given, was, as before stated, at the stockholders’ meeting on September 19.
c< Defendant, further answering, says thát all his dealing with complainant was done in the utmost good faith; that said Capital City Manufacturing Company has a valuable business, and has succeeded to the satisfaction of the stockholders, considering the capital invested, and, with the addition of the full amount of its subscribed capital, will prove an enterprise of great value; and that if any of the stockholders, prior to the evening of the eighteenth day of September, had entertained any thoughts of a sale of the assets, it was entirely unknown to defendant.”
Proofs were taken in open court, and a decree rendered in favor of the complainant.
There is some conflict of testimony between complainant and defendant, but certain facts appear to be well established by proof. There is not much disagreement respecting th e-essentials of the agreement entered into between the parties, aside from the alleged representations, claimed to have been made as an inducement for complainant to enter into it.
It appears beyond doubt that complainant believed that he was buying stock in a going concern, and that, whatever embarrassments they, were at the time laboring under, they were temporary, and would be fully relieved from by an assessment upon the stock; that defendant did know, and complainant did not know, that, as early as September 12, a vote-had been taken at a stockholders’ meeting, at which defendant was present, to entertain a proposition to sell and transfer the machinery, buildings, stock on hand, and miscellaneous property; that during the negotiations for exchange of property between these parties the defendant did not inform complainant of such proposition; that on the evening; of the same day the deed was left with Mr. Humphrey the defendant attended a stockholders’ meeting, and there, as a stockholder, voted to accept the proposition for sale, and to authorize the directors of the company to convey the property on the proposition made, at 60 cents on the dollar of the inventory value of the property,'being the sum of $13,645.41; that at the same meeting, after voting to dispose of all the property of the corporation, a motion was made that 80 shares of the capital stock of the corporation be transferred from F. B. Piatt to Charles J. Harris, which motion, on the request of the president, 'was withdrawn; that another sponta-' neous meeting of the stockholders was held on the nineteenth of September, at 11 o’clock A. m. Notice of the meeting was waived, and the written waiver was signed by defendant with others. At this meeting further authority was given to the board qf directors to transfer the property of the corporation to the Capital City Wagon Company. The defendant voted in favor of this grant of authority. The by-law was, by resolution, waived requiring two weeks’ notice to be given of sale of stock.
The board of directors, on the nineteenth of September, voted to accept the notes of the Capital City Wagon Company, to the amount of $13,645.48, in payment of the stock, tools, buildings, machinery, merchandise, and miscellaneous property purchased that day by the Capital City Wagon Company, and the transfer of such property to take immediate effect. The board then accepted and placed on file the proposition of defendant to sell complainant 80 shares of the capital stock of the Capital City Manufacturing Company, and instructed the secretary to transfer 80 shares of the capital stock of the said company, then standing in the name of F. B. Piatt, to Charles J. Harris. On the same day Piatt obtained a certified copy of the resolution directing the trans fer, presented it to Mr. Humphrey, and demanded and obtained the deed.
Of all these transactions complainant was ignorant; in fact, he was absent from the city. The defendant, after the agreement had been entered into, and before it was fully consummated, by his active participation destroyed the entire value of the property which he had agreed to transfer to the complainant. By his act he wrought such a change in the subject-matter of the contract as to authorize the other party to the agreement to rescind it in toto. He had no right to depreciate the value of the stock which he had agreed to deliver to complainant by selling the entire assets of the corporation for 60 cents on the dollar. From the moment this sale was consummated, the stock became worthless. A transfer of such stock was not a carrying out of the contract.
We are satisfied that the decree of the circuit court is correct, and is affirmed, with costs.
The other Justices concurred. | [
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] |
Morse, J.
The complainant filed his bill in the circuit court for the county of Saginaw, in chancery, to enjoin defendants from plowing up and digging and ditching upon his premises.
. He claims that he is the owner in fee, and has had possession, by himself and his grantor, for 12 years prior to the filing of his bill, of a strip of land about one-half mile in length, lying between the Cass river and the Flint & Pere Marquette Railroad track and right of way; that said strip is occupied by him and fenced, and contains about 10 acres, and is of the value .at least of $1,000; that the same is under cultivation, and a ■valuable crop of grass was growing thereon, when the defendants entered upon the premises, and proceeded to dig up the land, and destroy said crop; that said defendants threaten to continue to enter upon his lands, and destroy his fences inclosing the same, and to dig up and ditch said lands so as to make them unprofitable for cultivation, and thereby valueless; that this strip of land is from four to fifteen rods wide, and part of the bottom lands of the Cass river, and subject to overflow; and that the operations and trespasses of the defendants, as aforesaid, will cause the surface soil, as the complainant fears, to be washed away in the freshets of said river, and the value of said land be destroyed.
The defendant Lesia answers, admitting the ownership of the premises to be in the complainant, and the cultivation of the same, but claims that said ownership is subject to the easement of a public highway running through the lands, which highway is not under cultivation, and has been for over 30 years a well-defined and used public highway.
He avers that he is highway commissioner for Bridgeport^ within which township the said highway is situated, and that he entered upon such lands in the performance of his duty as such commissioner, and the other defendants entered as laborers under him; denies that he or they did any injury, or threatened any, to the land or crops of complainant; avers that said land embraced, as he claims, in the highway, has been open and occupied as a public highway for 35 years, up to and including the year 1871, and since 1871 has been used as a highway by parties in that vicinity who desired to use the same; that before 1871 there was a public bridge across the Cass river, from the foot of State street, in the village of Bridgeport, and in that year a new bridge was built across the same river about one-half mile above said old bridge, which new bridge was afterwards used for crossing the river, instead of the old one, until the summer complainant’s bill was filed (1882), when said last-built bridge became rotten, and unfit for use and unsafe for travel; that the people of the township of Bridgeport voted to build a new bridge, in pursuance of the statute, upon the site of the first-named or old bridge, and that the authorities of said township, acting under vote, have made a contract for the erection of a bridge upon said old site, the cost and expense of which will exceed the sum' of $1,500, and that, in order to make said highway passable and fit for public use, it'is necessary to repair and improve said highway where it runs through complainant’s lands; that said highway and bridge will be the only means of crossing said Cass river in the town of Bridgeport.
He also avers that in 1861 himself and one Jesse Irish were highway commissioners of Bridgeport; and, the original record of the laying out of this highway being lost, the said commissioners, for the purpose of re-establishing said highway, caused the same to be surveyed, which survey is set forth in his'answer.
Under the issue made by the pleadings, as aforesaid, the case was heard in December, 1882, by a jury called by the circuit judge in order to determine in an advisory manner these questions of fact:
1. Was there a highway across complainant’s land July 10, 1883?
2. If so, where was the same located?
The jury found there was such a highway, and that it was located upon a survey made by one Pettibone.
October 26, 1885, the cause was heard, upon pleadings and proofs, before the same circuit judge, Hon. Chauncey H. Gage, who entered a decree dismissing the bill of complaint.
Upon a careful examination of the record, we think the decree of the court below is wrong, and that the complainant is entitled to the relief sought in his bill.
It appears from the proofs that in an early day, as far back as 1810, people residing in the vicinity commenced traveling along the river bottom, partially upon the land now owned by complainant, crossing the river by ferry or fording.
Between 1852 and 1857 a bridge was built over the Cass river for the accommodation of this travel, which bridge was used continuously until 1871, when it became old and rotten, and was torn down, and a new bridge built.
The highway claimed by defendants was never laid out and established as a public road, nor is there any evidence of any proceedings attempted under the statut 3 for that purpose. There is some misty testimony of a survey made in 1845, or thereabouts, but nothing tangible.
In 1861 one Pettibone, a civil engineer, made a survey of this highway, the center line of which he claims was then the traveled part of the road. This survey was recorded in the record-book of the commissioners of highways of the township wherein the road was situated. He also testifies that the line of his survey is the same as the road worked by the defendant. Another surveyor testifies, however, that the present line does not agree with the survey of Pettibone.
If this highway, as now claimed by the defendants, ever became a public road, it became one by user only.
We do not think the testimony as to the land used for travel üp to the time of Pettibone’s survey is definite enough to establish a highway by user. The land was wild, unoccupied, and uncultivated. The testimony shows there were several tracks, and people traveled all over the bottom, as suited their convenience; shaping their course also in reference to high and low water times.
After Pettibone’s survey, there was more or less highway work done upon this road, and the public seemed to have treated it as a public highway up to the year 1871.
In 1870 or 1871 a new bridge was built over the Cass river, about half a mile from the site of the old one; and thereupon, as we think, the public formally abandoned the highway then located and used upon the line of the Pettibone survey.
This highway was known as the Taymouth road, and on the twenty-first day of February, 1870, an application was made to the commissioners of highways, by a large number of freeholders, to alter this road, so that it might cross the new bridge instead of the old one. The commissioners proceeded under the application, and altered the same.
After this action, the road now claimed by the defendants was virtually discontinued and abandoned. The travel thereafter went the new way.
In 1874 that portion of the old highway, from river bank to river bank, the site of the first bridge, was discontinued and vacated by the commissioners.
For a period of 12 years, from 1870 to 1882, there was no travel over the old road upon the Pettibone survey, except by stragglers and lumbermen on foot, and the teams of persons owning the land, who used the same for their convenience in working the premises.
The lots owned by complainant, and comprising the lands involved in this controversy, were State lands until 1851. In that year Isaiah J. Hudson purchased these lots from the State, and received a certificate therefor from the proper officer. Some of this land was improved and worked in 1859. The complainant rented the premises about two years before he purchased, and in 1876 fenced them in, which fence remained until disturbed by defendants.
No action was taken by the public, after the abandonment of this highway, to re-establish it, but the defendant claims it has never ceased to be a public road.
In this State it has been decided that a highway, or any portion of it, can be lost by non-user alone. Gregory v. Knight, 50 Mich. 61, 64.
But it is also contended by defendant that the non-user must be for the statutory period of 15 years, and that the time falls short in this case. But where there is a formal abandonment, and the opening of a new road, and its use instead of the old one, the case is different.
The only objection urged against the action of the commissioners in altering and practically vacating, by such alteration, this part of the road upon complainant’s premises, is that the records do not show that the highway commissioners gave the notice required by law to the persons owning the lands embraced in tbe road vacated. As long as the complainant and others owning the premises raised no question upon this point, and the action of the commissioners has for 12 years been accepted as valid by every one concerned or interested in the premises, as well as by the public generally, we do not think the public authorities can now be heard to establish the illegality of their own proceedings in order to acquire the lands of the complainant for public use without compensation. Under their action, in which all have acquiesced, he has gone on and improved the premises, and perhaps purchased them, relying upon the fact that the road was abandoned, as he bought the land since the discontinuance of the highway.
There is no principle of equity that will sanction or sustain the action of defendants in now seeking to rehabilitate this extinct road with the life it may have once had by reason of its user before its abandonment.
The decree of the court below dismissing the bill of complaint is reversed, and a decree will be entered in this Court enjoining defendants, in accordance with the prayer of complainant’s bill, and costs of both courts awarded him.
The other Justices concurred.
See Coleman v. F. & P. M. R. R. Co.,post. | [
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Champlin, J.
This is a suit for personal injuries to a little girl two years and seven months old. The child’s parents lived on Ferdinand avenue, in Detroit, a street which crossed the track of the Wabash, St. Louis & Pacific Railway Company at right angles at about 150 feet distant from the house.
The case was before us at the January term, 1887, (ante, 494), and we refer to the report of the case for a map showing the location of the place of the accident and the surroundings.
It appears from the testimony that plaintiff was injured on the afternoon of a July day in 1884. Her father was a street-car driver, and was absent from home at the time, attending to his daily avocation. His family consisted of his wife and two children, and his wife’s father, then about 80 years old. The younger child was then a baby. His wife attended the family, and did the marketing. Mrs. Battishill, the plaintiff’s mother, testified that, on the day of the accident, she went up to the city to buy groceries, and see her sister, who was sick; that she took the street car at half past 2, leaving the plaintiff at home in the care of her father, who was 81 years old and in ordinary health. She left her younger child at home asleep. Her father was lying down when she left the house, but said he would get right up when she left the little girl with him. She did not take the plaintiff with her up town to get the groceries, because she could not carry her basket with the child. She knew the railroad was close by, but she never knew the child to go near it before. She had been in the habit of going away and buying groceries, and leaving the child.
She reached home between 4 and 5 o’clock, and found her child had been injured, and the doctors there. The child’s leg had been crushed between the foot and knee, and the surgeons amputated the limb between the knee and hip. In some manner not explained the child had gone upon the track of the railroad operated by defendants as receivers, ahd was injured at or near the point where Summit avenue crosses the railroad track.
George Lewis testifies to having witnessed the accident; and he says that plaintiff, when he first saw her, was on the track going across a culvert towards home. She was pretty near the middle of the culvert. He saw the train coming, and ran down, and tried to catch her off. She was walking across the culvert, with her feet on both sides of the rail. He tried to pull her off, but her stocking caught, so that he could not, and the train ran over her leg.
There is a clear view of the track west from Summit, avenue for two or three miles, and also from that point east to Clark avenue. The train of cars which did the injury was composed of an engine and tender, and four or five freight, cars. The engine and tender were running backwards, drawing after them the freight .cars. The train was properly manned with an engineer, fireman, conductor, and one brakeman. The engineer and fireman were at their proper stations, and the brakeman was upon the top of the car at the west, and the conductor on the top of the east car. The train was going east. All of these who were sworn — and they were all sworn except the fireman, who was absent from the State — testified that they were keeping a proper lookout, and none of them saw the child upon the track, or were aware of the accident until after they-were informed of it upon their return to' Delray. The distance from Summit to Clark avenue is 320 feet.
John Levison was loading cinders on a car which stood on a side track five car-lengths west from Clark avenue. He saw the child on the track on the crossing at the culvert, and the train, at thé time, was at John O. street, which is 492 feet west from Summit avenue. It was coming towards him •at the rate of about three miles an hour. He looked away when the train got close to the child. He then, with Mr. Brandt and Mr. Bidgedale, went and picked up the child. They found her 10 or 12 feet from the cattle-guard at the crossing, inside, in the middle of the track between the rails. The train was going towards the city, and did not stop. They took the child to her father’s house. He testified that there is a straight track to the west to Delray, which is about two miles and a half, and there was no obstruction to the view.
Frederick Brandt testified that he was with Levison, loading cinders into the ear. He first saw the train at Junction avenue. This, by measurements testified to by Mr. Battishill, would be a distance of 738 feet west from Ferdinand .street. He says that he saw the child upon the track before she was run over. She was on Summit 'avenue, on the track; and he saw the train come up, and run over her. It was running faster than he could walk, — say five miles an hour. The train went on to the city without stopping. As soon as he saw that the child had been run over, he and his two companions ran to her, and found she had a leg off, and they picked her up and carried her home.
There was testimony introduced which tended to show that those in charge of the engine failed and neglected to give the required and usual signals of alarm upon approaching the Summit-avenue crossing; and on the other side the testimony was positive that such signals of alarm were given. On this point the question was properly submitted to the jury.
Several of the errors assigned relate to the method pursued by the plaintiff’s counsel in conducting the trial.
It is improper for counsel engaged in a second trial of a cause to state, in the presence and hearing of the jury, what occurred upon the former trial; and where the Court can see that the remarks were likely to influence or prejudice the jury, the judgment will be reversed for that cause. It is competent, however, to interrogate a witness as to testimony given by him upon a former trial, for the purpose of refreshing his recollection, or of impeaching him. I do not think the first exception taken well grounded.
The fourth exception was taken to the remarks of counsel for plaintiff while addressing the jury, and the objectionable remarks stated by counsel for defendants were excluded by the court on exception being taken, as were also the remarks which were the subject of the sixth exception.
The seventh, eighth, ninth, and tenth exceptions purport to be based also upon the remarks of counsel in his argument to the jury. The record does not show the remarks made, or the connection in which they were made; but, in taking the exception, the counsel embodies certain expressions as having been made by the counsel for plaintiff. As some of these were disputed by counsel at the time, we cannot assume that he was correctly quoted in the exception. Others not disputed may be assumed to have been made. In some instances, when exceptions were taken, the court corrected counsel for plaintiff at the time; and, with respect to the eighth, he took occasion to correct him in his charge to the jury, as requested by counsel for defendants.
Upon the whole matter of the exceptions to the remarks of counsel, while we do not approve, yet we cannot say that, they were likely to or did mislead or prejudice the jury against defendants. Extravagant expressions are apt to be used in the heat of argument. Invective is sometimes resorted to, persuasions made, and forensic skill employed,— all with the design to influence the jury in behalf of a client. But all these arts and appliances are permissible so long as-confined within legitimate bounds of the discussion of the facts before the jury; and if courts are to take it upon themselves to set aside verdicts because some irrelevant remarks are made use of by counsel in their arguments, they will find constant employment, and few indeed will be the verdicts which will be sustained.'
The twenty-first assignment of error is based upon the refusal of the court to instruct the jury that.there was no evidence to support the third count of the declaration. That count averred that it was the duty of the defendants to use and exercise proper care and precaution in the running of their trains, and to employ competent and careful lookouts, agents, and servants, who should be stationed on or about the locomotive engines of their ■ trains, who should be attentive to their duties, and, in case of apprehended danger, who should arrest the engines of their 'said trains, and stop the same in time to avert danger and accident, and to otherwise exercise-proper care and precaution in giving the signals-of warning required by the statute in such cases made and-provided ; yet the defendants, neglecting their duty in that behalf, neglected to exercise such reasonable care and precaution aforesaid, and recklessly, wantonly, and maliciouslv ran and propelled one of their trains over the said plaintiff, who-was then an infant about three years of age, without stopping the train in time to avoid the accident and injury to the* plaintiff, when the said train, by the exercise of proper care- and precaution upon the part of defendants, and without recklessness and wantonness on their part, might have been. ■arrested and stopped. It also averred that the plaintiff was in the exercise of due care upon her part.
The learned counsel for the defendants insists that there was not a particle of testimony to support this count, because the engineer, the conductor, and the brakeman in charge of the train all and each testified that they were upon the lookout, and did not see the child. We do not think the conclusion follows from the testimony in the case. At least three persons testified to seeing this little girl upon the track when she was run over. The place where the accident happened was in the township of Springwells, then a suburb of the city of Detroit, and now included within the city limits.
It would have been reckless negligence for persons employed by defendants to have started this train at the junction, and left it to proceed into the city without any one on board and having control thereof. It would likewise have been reckless for such train to have been run without any person to look out for accident or danger to individuals upon the track or upon the street crossings, which were numerous in that locality. It would be no less reckless for such train to be run while the person charged with the duty of keeping a lookout to avoid danger or accident neglected such duty. What is the inevitable conclusion from the testimony? When three persons on the train testify that it was their •duty to keep a lookout, and two of them testify that they occupied positions where they could have seen the child had it been upon the track, and swear they did not see it, and three witnesses swear they saw the child upon the track, and the train approaching several hundred feet away, and the child is run over in the broad light of a summer afternoon, were the persons in charge of that train performing their duty of keeping a lookout or not? If they were, they would have seen the child in time to stop the train and avoid the accident. If they had seen it upon the track the same distance from it that Levison and Brandt saw it, they could have ■stopped the train, and avoided the injury to plaintiff. That they did not see it under the cireumstanees is conclusive proof that they did not keep a proper lookout. As well might the train have been run with no one- in charge. It ■would have been no more reckless and more culpable than, with four men in charge, to run over this child, who was ■upon the track in plain sight, without seeing it. It shows in these men a reckless indifference to their duty under the situation and surroundings. The law does not require impossibilities, but it does require care on the part of persons in charge of such dangerous machinery and force. What others saw in looking along the 'track, these employés could have seen; and that they did not observe the child under the circumstances shows them guilty of reckless negligence.
The defendants being guilty of'reckless negligence under the circumstances disclosed by the testimony in running their train without keeping a proper lookout, and in consequence thereof having run over plaintiff, and injured her, the question of contributory negligence does not arise, even had the plaintiff been of that age at which the law would have imposed upon her the duty of exercising due care to avoid injury. Having reached this conclusion, it would be unprofitable to discuss the subject of imputed negligence, as the disposition of the case does not depend upon that question.
The judgment is affirmed.
Sherwood, C. J., and Morse, J., concurred. | [
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] |
Morse, J.
This is a bill filed to quiet title to lands under a tax deed, under the provisions of section 1168 of Howell’s Compilation, being section 166 of the tax law of 1869.
The substantial facts averred by the bill are these: March 12, 1883, the Auditor General executed a tax deed of the premises to one Marvin A. Farr. This deed was made by virtue of Act No. 229 of the Laws of 1881, the lands having been sold to the State for the back and unpaid taxes for the years 1873 to 1880, inclusive, which taxes were regularly assessed and levied upon said lands.
The deed was recorded in the proper office, April 9, 1883. Complainant is the holder of this title.
The records show that the United States patented this land to George L. Hutchinson before the year 1873, who quit-claimed his title to Norman McLeod. McLeod subsequently quitclaimed all his title and interest in the premises to defendant, in whom the title now appears by said records in the office of the register of deeds of Marquette county. Hutchinson and his grantees paid no taxes upon said premises down to the year 1885, for which year some person unknown to complainant paid the taxes. Complainant paid the taxes from 1880 until 1885.
Neither the complainant nor the defendant is in actual possession or occupation of the land, the same being wild and uncultivated. The complainant is unable to learn whether the defendant now claims or asserts any title to the said property, but claims that the deeds evidencing the-original title constitute a cloud upon his title.
The defendant demurred generally, which demurrer was sustained by the court below. The complainant declining to amend his bill, the same was dismissed, with costs.
The complainant cannot maintain his bill under section 1168. The act of 1869 was repealed by Act No. 11 of the Laws of 1882, so far as it related to the future assessments of taxes, and the steps to collect the same. The act remained in force only for the completion of proceedings before that time begun for the collection of taxes, and for the protection of all rights gained thereunder, and conveyance of land before sold, or to be thereafter sold, and all actions then commenced and pending. The act took effect March 14, 1882.
The act of 1882 contained no provision similar to the one embodied in section 1168, and the act of 1885 contains no provision of that character.
The complainant had no rights under this section 1168 at the time of its repeal. The tax deed under which he claims was not executed until March 12, 1888, — a year lacking two days after the repeal of the section under which he seeks to file his bill. The section cannot now be considered alive as far as his alleged title is concerned.
Independently of this statute, being out of possession, he cannot proceed in equity for the purposes sought in his bill.
We think, further, that he- can bring ejectment. The record of a deed, which deed appears by the records in the register's office to be the end of a direct chain of title from the government, is a sufficient assertion of title to warrant an action of ejectment, under our statute, against the grantee in such deed, when no person is in actual occupancy of the land. Hoyt v. Southard, 58 Mich. 432, 434.
The decree below is affirmed.
The other Justices concurred.
See Supervisors v. Grand Rapids, 61 Mich. 173 (note), for amendment of 1887 (Act No. 260), authorizing such proceedings by party out of possession. | [
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] |
Champlin, J.
The defendant filed a general demurrer to •a declaration in an action brought by plaintiff to recover damages claimed under a written contract between the [parties. The contract is set out in full in the declaration, and breaches thereof alleged. No objections to the declaration, either as to form or substance, are specified in the demurrer.
,How. Sfcat. § 7358 enacts:
“ When any demurrer shall be-entered in any action, and issue be joined thereon, the court shall proceed and give judgment according to the very right of the case and matter in law shall appear, without regarding any defect Or other imperfection in any process or pleading, so as sufficient matter appear in the pleadings to enable the court to give judgment according to the very right of the case, unless such defect or other imperfection be specially expressed in the demurrer.”
Section 7359 provides:
“ After issue shall be joined on any demurrer, the court ¿shall amend every such defect or other imperfection in any process or pleading in the last section mentioned, other than those which the party demurring shall specially express in ■his demurrer.”
And rule 34 of the circuit court rules reads:
“ When either party shall demur to any pleading, he shall briefly but plainly specify the objections, in matters of substance as well as those of form, upon which he intends to rely on the argument; and, if the pleading shall be adjudged bad for any cause not so specified, the party pleading, when allowed to amend on terms, will be permitted to do .so without costs.”
It is the intention of the statute and the rule to require -every objection, either of form or matter of substance, to be ¿specified in the demurrer. If this is not done, and the dec laration sets forth a cause of action, the demurrer will be overruled.
We think the declaration in this case does contain and set forth a cause of action. It alleges the execution of the contract whereby the plaintiff agreed to construct works for the purpose of supplying the city of Adrian, and the inhabitants thereof, with water. A clause in the fourth section of the contract provides:
“Said works to be considered complete when complying with the conditions and capable of performing all of the requirements as described in section seven of this contract.”
Section 7 reads as follows: •
“ Sec. 7. Said second party covenants and agrees that said water-works, when completed, shall be first-class in every detail; the pipes of standard weight, tested at a pressure of three hundred pounds to the square inch before being laid down, and shall have sufficient capacity and power to throw eight fire streams to a perpendicular height of one hundred feet, or maintain its equivalent in pressure at the nozzle; said streams to be thrown through fifty feet of hose, and through one-inch nozzles, not more than two to be taken from a six-inch line, four from an eight-inch line, six from a ten-inch line, and eight from a 12 or 14 inch line.
“'And said second party, shall, during all the time aforesaid, keep said water-works up to said capacity and power; and that upon the completion of said works, and before any liability shall attach to said city under this contract, said works shall undergo and fulfill said requirements in capacity and power, and that it .must be fully demonstrated by submitting said works to such tests as may be reasonable to ascertain their utility, and as the common council of said city may require: Provided, however, that said tests shall not exceed two days’ duration, and comply with the requirements of this section.
“If said works, when completed and tested, shall not comply substantially with the requirements in letter and spirit of this section, or are not, as soon as practicable, made so to comply, the party of the first part shall have power to require such compliance, and they shall not incur any liability for rent until the works are brought up to said required standard. But, should said water-works, at the time above mentioned, and during said tests, comply with the requirements of this section in letter and spirit, then said works shall, by the party of the first part, be accepted as completed; and, from the time of such acceptance, shall commence the rents of the above-mentioned hydrants; and such tests are to be made as soon as the second party shall require.
“ Said second party agrees to construct the building in which said pumping machinery shall be placed, of brick, and to be reasonably secure against danger or loss by fire. Said second party also agrees that the hydrants shall be the Holly double nozzle, with frost-jackets, and of the latest improved pattern; the pumping machines and engines shall be of three million gallon capacity, and be either of the Gaskell duplex or the Holly quadruplex.”
The counts demurred to adopt by reference the contract set out in the first count, and also the construction and completion of such contract, and the tests alleged in the first count; and aver that the water-works appeared to be and were in all respects completed in accordance with the terms • of the contract. The first count set up particularly the performance of all the requirements of the seventh section of the contract.
The breach alleged is the refusal of the defendant to accept said works as completed, although the same were in every respect complete according to the terms of the contract. We are clearly of opinion that the declaration sets forth a cause of action, and that sufficient matter appears to enable the court to give judgment according to the very right of the case. The defect claimed in support of the demurrer consists in the failure to show a cause of action, in that there is no averment in either count that the company had provided a supply of water according to the requirements of the contract. This claim is founded upon a clause in the contract relating to the payment by defendant of an annual rental for water supplied to the city, as follows:
“ The payment of this sum of ten thousand dollars per annum to be dependent upon the said second party supplying wholesome water during all the term aforesaid, to wit, thirty years, unless said party of the first part shall, before the expiration of the same, purchase said works; water to be taken from wells and springs sufficient to supply all the inhabitants •of said city with wholesome water for domestic and fire purposes. And, further, that, notwithstanding anything in this •contract set forth, no liability shall attach to said party of the first part, nor shall the rental of said hydrants begin, un-, ■til said water-worts are fully completed in such substantial •compliance with the terms, requirements, and conditions of this contract, and said works are accepted by the common ■council of said city.”
Defendant insists that it is made a condition precedent to payment for use of water, or to acceptance of the works, that the water shall be taken from the wells and springs, and that it shall be sufficient in quantity, before defendant is obliged to accept the works, to supply all the inhabitants of the city for 30 years with wholesome water for domestic and fire purposes, and that performance of this condition must be alleged ■in the declaration.
We do not agree with counsel for defendant in this construction of the contract. The several clauses of the contract must be construed together, and the intent of the parties arrived at from the whole instrument. It provides, in positive and unmistakable terms, when the contract shall be accepted, in section 7. It would be an unreasonable and strained construction of the contract to hold that the company must, in advance 'of its requirement for use for 20 or 30 years, have a .■supply of water sufficient to supply all the inhabitants the city will contain 20 or 30 years hence. The clause is a condition subsequent to acceptance, and the covenant a continuing one, and protects the city from paying the rent in ■ case the water is not supplied according to its terms.
The demurrer must be overruled, and the cause remanded, with leave for defendant to plead in 20 days from notice of filing remittitur. The plaintiff will recover costs of both «courts.
The other Justices concurred. | [
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] |
Campbell, C. J.
Plaintiff recovered in the circuit court-for Livingston county, on a claim against the estate of Phcebe Jenkins, for breach of a covenant of warranty contained in a deed of certain lands in that county, made to him by Mrs. Jenkins in May, 1875. Having proved his eviction under writs of possession dated February 25, 1885, under judgments in ejectment rendered in favor of Emma Austin and G-id’eon S. Ramsdell, in February, 1883, and October, 1884, plaintiff rested, without proof of notice to Mrs. Jenkins, and was allowed to recover his damages.
Evidence was received, under objection, from Rollin H. Person, who was attorney in the case of Mrs. Austin, where there was a special finding, that in the previous trial of the Ramsdell case, in which he took no part, he was present, and thought the testimony was the same, in substance at least.
Defendant showed a tax deed from the State to Frederick J. Lee, dated March 1, 1873, duly recorded, and a conveyance thereafter from Lee to Mrs. Jenkins, of the same date with her deed to Hines. Nothing was shown to controvert the validity of this deed.
The court below, nevertheless, took the case away from the-jury, and ordered a verdict for the plaintiff. This seems to-have been done under the assumption that it was decided in Mason v. Kellogg, 38 Mich. 139, that eviction under a judgment in ejectment was presumptive evidence of a breach of the covenant, and of better title than the one conveyed.
The judgment below cannot be maintained even on that basis, because the finding of facts on which the ejectment judgment in Mrs. Austin’s case was based does not identify this tax deed at all. It refers to an earlier conveyance to Mrs. Jenkins of a tax title, which the court found to have been invalid by reason of certain facts in pais, not appearing in any of the tax records; but it does not refer to the title obtained under this deed, which is presumptively valid.
But we are not prepared to say that the case of Mason v. Kellogg sustains any such doctrine as was held below. In that case the opinion does not so decide. It was decided that the ejectment judgment was not binding on the warrantor without adequate notice to defend. -It was further decided that if the judgment was prima facie evidence of the superiority of the title of plaintiff in ejectment, who claimed against an administrator’s deed, that presumption was no better than the one raised by law in its favor, and could not overcome it. But, in speaking of this prima facie effect claimed for the judgment, it was distinctly said: “We do not say it is proof to that extent.” The majority of the Court, concurring in giving judgment against the plaintiff, did not decide that the judgment was evidence of anything beyond the fact of eviction; and some very strong reasons were given by the judge who delivered the opinion in that direction.
It is very manifest that to allow a judgment to which Mrs. Jenkins was not privy to stand as proof, complete or presumptive, of her breach of covenant, is to give such a judgment greater force than any other judgment which is res inter alios, and practically to throw on the defendant the burden of proof, instead of leaving it where it belongs, on the plaintiff. It was shown in Mason v. Kellogg that a judgment in ejectment could never in itself prove anything more than that the plaintiff in it had a better title than defendant, and that it was no proof that that title did not emanate from the defendant, or from some source which would not impugn the grant containing the warranty, which might have been perfectly good at its date. Only one of these ejectment judgments is based on a special finding. That finding may, perhaps, show that the plaintiff in ejectment prevailed against the title derived from Mrs. Jenkins. In reciting the defects in her title, they all appear to have been made out by parol evidence of matters which are not, even in the finding, shown to have been within her knowledge. Without notice to defend the ejectment suits, she was not in a position to inquire into the character or legal admissibility of that proof, or to obtain the judgment of an appellate court whether the finding itself was such as to support the judgment, or would have been sustained on a proper bill of exceptions.
This finding itself shows a good presumptive title in Mrs. Jenkins; and in Mason v. Kellogg, 38 Mich. 139, it was held that the fact that the title shown in the ejectment suit was presumptively good overthrew all the presumptions against it, so far as the warrantor was concerned, which arose from the judgment in ejectment. To hold that Mrs. Jenkins was bound by the conclusion of the court, from the evidence introduced there to overthrow this presumption, would be to hold her bound by proceedings where she was not heard, and by testimony which she, even after the finding, had no means of identifying or meeting.
It seems to us that the learned circuit judge, who appears to have held in the first instance that plaintiff,.in the absence of notice to defend, was bound to prove a failure of title, was misled by the citation of Mason v. Kellogg on the trial, and decided as he did on a misapprehension of what was really settled by it. To allow a judgment between strangers to prove any more, whether presumptively or absolutely, than what was alleged and determined as between them, would, we think, be very unjust and dangerous, by shifting the burden of proof in one case according to something done in another, in which the party had no power to intervene. The whole defense would consist in overthrowing a presumption created by proofs of which defendant was ignorant, and which, if she had been present, might have been excluded or destroyed. There is no justice in such a doctrine, and, whatever dicta may be found in its favor, it is not only contrary to the whole doctrine concerning judgments in all other cases, but contrary to decisions which are worthy of great respect. See Rawle, Cov. (4th ed.) 227-253, and notes.
In the present case, as already pointed out, the tax deed set up in defense does not appear to be the same set forth in the finding, and could not be affected by it on any theory whatever. The finding also sets out facts which raised a presumption of good title in Mrs. Jenkins, such as was held in Mason v. Kellogg to overcome any presumption which could arise from the judgment itself, although it was, as between the parties in ejectment, overthrown by the judgment.
It may further be remarked that, instead of seeking a new trial, or notifying Mrs. Jenkins or her estate so as to give an opportunity for claiming one under the statute, this eviction was allowed under a first judgment, which Mrs. Jenkins could not come in and have set aside without the permission or requirement of Hines, who saw fit to allow himself to be put out without giving any chance to his grantor to try the facts except on his suit upon the covenant. This exemplifies the importance of holding a grantee to give notice to his grantor if he desires to have the ejectment judgment binding in an action on the covenant.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Sherwood, J.
The bill in this case is filed for the purpose of requiring the defendant Dorothea Spiegel to convey to William J. Spiegel lot 13, in Dr. Kiefer’s resubdivision of Van Dyke’s section 2 of the A. Beaubien farm, between Beaubien and St. Antoine streets, in the city of Detroit, and asks that the deeds from said William J. Spiegel and wife to defendant Oldekopff, and from him and wife to Dorothea Spiegel, of the same property, may be decreed void, and that an injunction issue restraining the said Dorothea Spiegel from mortgaging or otherwise conveying to others, or exercising any acts of ownership over, said lot.
The bill charges that defendant William J. Spiegel and complainant were, on March 4, 1885, man and wife; that William J. Spiegel was the owner of a house and lot on Montcalm street, Detroit, which was his homestead, and in which Clara had inchoate dower; that on the fourth of March, 1885, William, by misrepresentation and fraud, induced Clara to join with him in a deed of this property to defendant George Oldekopff; that within a few days thereafter Oldekopff and wife conveyed the property to defendant Dorothea Spiegel, who is the mother of William J. Spiegel; that the conveyances were without consideration, and operated as a fraud upon complainant; that both George Oldekopff and Dorothea Spiegel were parties to the fraud; and prays that these deeds may be set aside, and complainant’s rights restored.
The answer admits the conveyances, denies the fraud, and claims that there was a good consideration in each instance.
Among the witnesses sworn were the complainant, and defendants Dorothea Spiegel and George Oldekopff. The defendant William J. Spiegel was not sworn. The cause was heard in the Wayne circuit, before Judge Jennison, who dismissed the complainant’s bill, with costs.
The defendant William J. Spiegel was a widower, with three children, one an infant, one four, and the oldest seven, years old, when, on December 2, 1884, he married the complainant, who lived at that time in her father’s house, at 194 Leland. street, Detroit, where she was married. He owned, as his homestead, lot 13, hereinbefore described, but which at that time was rented out until the next April. He also owned city lot 71, of Hibbard & Baker’s subdivision of lot 4, etc., in Detroit. After their marriage they resided temporarily at the homestead of the wife’s father, in the city, expecting to return to their homestead on lot 13 when the tenant’s term expired. They lived, with the children, in her father’s house until about the fourth of March, 1885, using a part of their furniture where they lived, and the remainder remaining at the house of his father. William J. Spiegel’s homestead was situated on Montcalm street.
During the winter the wife was in poor health, and William complained much of the poor outfit her father gave her, and of the great expense the wife and children were bringing upon him ; that it cost him five dollars per week to support his wife and three children; and in all his complaints it appears that he had much sympathy from his mother, who occasionally gave some very unpleasant expressions of her feelings upon the subject. The testimony in the case shows that, as early as February, he was found making such complaints as above, saying he could not live with her, and intended to make an effort at an early day to obtain a divorce.
His property, so far as the record shows, aside from household goods, consisted of the two lots mentioned, one being the homestead, worth at least $3,500; and, I think, with a view, as the evidence clearly shows, of divesting his wife of all her interest in said property preparatory to taking divorce proceedings, he transferred to his mother, through the agency of Mr. Oldekopff, an old friend of the family, the homestead, and obtained the signature of his wife thereto, under the false pretense that he wanted to get away from the locality of his mother, because she made him so much trouble, and buy a homestead on Fourteenth street which was not worth so much, and would do so, and would use the rest of his money to go into business with, and that he then had a good opportunity to sell the property to Oldekopff, who would pay in ten days for the same. At the same time he obtained her name to'a deed to his father, without knowing what it was until after she had signed it, conveying the other lot.
These conveyances were both signed on the same occasion, on the fourth day of March, 1885, and in five days thereafter Oldekopff and wife conveyed the property to Dorothea, the mother of William. Oldekopff says he gave to William his note, due in 10 days, for the property, and that when he sold it to Dorothea it was for the same price he agreed to pay for it, and received his pay from Dorothea by taking back his own note, and that Dorothea substituted her note to William for the same amount, due in five years, with interest at 5 per cent, per annum. This business, the testimony shows, was consummated on the thirteenth day of March, 1885, and on the next day Dorothea’s deed was duly recorded. It nowhere appears that either Oldekopff or Dorothea paid a dollar in money for the property.
On the fourteenth, William told, his wife that it was her fault that he had to sell his property, and wanted her to go to her home on a visit; that he was going to Ann Arbor to play for the students (he was a musician, and when in the city earned from three dollars to five dollars per night). On the fifteenth he directed his wife to take the children to his mother’s, and on that day he met his father-in-law; told him that his wife needed too much money; that she wanted five dollars per week; that he had just got through having trouble with his first wife, she being sick, and that he had the same trouble again, and he was not satisfied; denied that his property had been purchased by his mother. He told his wife he had got his money from Oldekopff on his note, and had left it at Stoll’s, the man who drew the deed, and had taken his bank-book away for fear it would burn up; that he was going to board with his mother, and, when she said to him she did not want to go there, said he did not care, he should go there, and she could go “where she liked.” She then went to William’s mother’s, and asked her if they were going to board there; and Mrs. Spiegel replied, “no,” but she would keep the children; and she then told the wife of William that she had bought the homestead, and said, “ William is going backwards instead of forwards.” On that night William packed up his house furniture. The next day he went to Ann Arbor, and on his return In the evening said to his wife she should not go with him “any more.” The complainant commenced this suit the same day.
Thus it will be seen that, within four days after William’s mother received the title of the homestead, he had abandoned his home, packed up his goods, and took his children to his mother’s to live, "made her house his abiding place, and discarded his wife. After a careful reading of this record, and giving to all the circumstances and testimony bearing upon the questions at issue due consideration, I cannot avoid the conclusion that a gross fraud was attempted by William with the intention to deprive his wife of ■her homestead and dower interest in said lot 13, and that such purpose was within the knowledge of the other defendants.
I quite agree with the learned counsel for the complainant that “ the transaction was fraudulent in its inception and in its execution, and that it has resulted in a fraud upon the complainant,” greatly to her injury. Very much of the complainant’s testimony is uncontradicted, and the other testimony in the case, and the circumstances disclosed, are of the most convincing character, and are not limited to inferences and presumptions not rising to the plane of evidence. I have not quoted the testimony to any great extent, but have contented myself rather in giving herein the conclusions I have reached on a review of the case as presented by the record.
I think the decree at the circuit should be reversed, and a decree entered in this Court in accordance with the prayer of the bill, with costs of both courts.
The other Justices concurred. | [
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Campbell, O. J.
Plaintiffs sued to recover taxes paid under protest upon personal property belonging to them, and assessed in the name of S. Babcock, in Beaver Creek township. The testimony and findings show that, after the tax roll had been placed in the treasurer’s hands for collection, he made demand by correspondence with plaintiffs, who, by an agent, in compliance therewith, subsequently paid under protest.^
The court found that plaintiffs, being a non-resident firm, residing elsewhere, and having no such place of business as the law contemplates in this township, were not taxable there; and, having further found that the payment was involuntary, and other specific facts completing a cause of action, gave judgment for plaintiffs.
Several different requests were made upon points on which we think the facts actually found present the law points with sufficient fullness, and we think it unnecessary to consider these requests in detail. The finding of facts is full, and there is no difficulty in reaching the entire issue.
It is claimed that, because the plaintiffs set up that the tax was bad because laid upon property largely in excess of what they owned, they cannot rely upon any other ground. This was not a protest under the statute, which does not appear to cover the case. It was on a payment claimed to have been involuntary, and therefore, if not due, liable to be demanded back. If the treasurer had accepted the tax on a part of the sum assessed, and remitted the balance, then, perhaps, this question, might be presented. But he had no power, at that time, to make any division or remission, and could not have accepted a smaller amount in lieu of all. Whatever was paid was lawfully kept entirely or not at all. It was money paid without consideration, under legal pressure, and recoverable as such, if at all. We do not think the protest stood in the way.
We think the payment was involuntary, unless the form of the assessment made a difference. The treasurer had the tax roll, and was undertaking to collect under it. A tax roll means the roll in proper form to warrant the treasurer in enforcing the tax, and under the finding it must be held to have been a good roll. There was no occasion for any more full finding concerning its nature. The law prescribes what it must be, and there was no testimony to the contrary. We think the court rightly found the payment involuntary. Under the tax law it could have been collected of Babcock, who is claimed to have been assessed on the firm property.
Under the statute it is declared by section 84 that a tax shall not be held invalid because assessed in another name than the owner’s; and personal property is authorized, in the very class of cases which the township authorities regarded this as being, to be assessed to persons in control. Section 11. By section 5, each partner is made liable individually for the whole partnership tax. This being so, we do not see that an assessment to Babcock individually would have been beyond the authority of the statute. The testimony and finding are not ambiguous or deficient in identifying what was meant to be assessed. The burden, whoever paid it, belonged, if valid, on plaintiffs’ property, and it was their right to so treat it, especially when they were called upon to meet it. We do not think the payment was any the less involuntary because the assessment was in form against Babcock alone.
A demand of payment by an officer having a warrant involves an implication that payment will be enforced if not made; and the authorities do not require an actual levy, or require proof that a levy could be made on tangible property. If the party yields to the legal menace, it cannot be presumed, in favor of the exactor of payment, that he could have found nothing to levy on, or that there were no means of enforcement. When the court found the payment made to have been involuntary, and made as set forth, there was no occasion to find any more on that head.
This disposes of all the substantial issues. Upon the facts no other judgment could lawfully have been rendered, and nothing more is material.
The judgment must be affirmed, with costs.
Sherwood and Champlin, JJ., concurred. Morse, J., did not sit.
The reason given for claiming the assessment illegal was that the protestants did not have to exceed $1,000 worth of personal property in the township at the time it was made, which was assessed at $6,250.
See tax law of 1888, §42; Lyon v. Guthard, 52 Mich. 271.
The finding was as follows: “The supervisor of Beaver Creek on the second Monday of April, 1884, made an assessment on his roll based upon logs, lumber, and sleighs, identified in this suit as belonging to plaintiffs, of $6,250, * * * and upon this valuation, at the proper time, the supervisor levied a tax of $142.19. In January, 1885, the treasurer of Beaver Creek, having in his possession the tax roll for 1884, made written demand of the plaintiffs for their personal taxes.” | [
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Ohamplin, J.
This suit was commenced by attachment The declaration filed is upon the common counts in assumpsit, and the plaintiff claims to recover back money paid for stock in defendant corporation, under the count for money had and received, on the ground that it- was obtained from him by the fraud and false and fraudulent representations of the defendant.
Under an order of the court obtained on motion of defendant, he filed a bill of particulars of the fraud charged in obtaining the money, as follows:
“The specific fraud charged in obtaining said money is this: That it was obtained under color of a sale to the plaintiff, by the defendant, of 200 shares of the capital stock of the defendant (not theretofore issued to any stockholder, but by the action of the company then remaining in the treasury of said company to be sold in behalf of the defendant by the directors for cash), upon the representations made to the plaintiff by the defendant, to induce said sale, that the capital stock of the company, of which said 200 shares were a part, was intrinsically of par value, and of a greater value than the par or face value thereof; that the value of the cash and other assets of the defendant over and above the amount •of its liabilities was much greater than' the amount of all its capital stock issued and unissued; that said defendant had made larger profits in each of the years 1882 and 1883; that in said year 1882 it had paid to its stockholders large dividends out of said profits, and had transferred out of said profits large amounts, over and above said dividends, to its surplus .account; and that, from the business of the year 1883 (in the business of which year it was stated that said 200 shares of •stock were to participate), then just closing, other large profits had been made, and that large amounts were on hand, and out of them would be paid to its stockholders large amounts of dividends, and other large sums would be kept remaining which could and would be transferred to its surplus account; that it had a large surplus in its treasury; that it had a large surplus in its assets over and above its existing liabilities, and its dividends for 1882, and the dividends able to he made for 1883.
“ That all and each of said representations, statements, and pretenses were false and fraudulent, and each and every one •of them was a material inducement to the plaintiff in paying in to the defendant said sum of money for said 200 shares of stock, and each and every one of which said statements, representations, and pretenses said plaintiff in good faith believed ; and that said sum of money was so as aforesaid paid by said plaintiff to said defendant on the faith and belief of said plaintiff in the further false and fraudulent representations and pretenses made by the said defendant that it had been doing a profitable business, and that its assets were very materially and much greater than they actually were, and that its liabilities were very materially and much less than they actually were; besides other false and fraudulent and deceptive material statements, representations, and pretenses made by the defendant and believed by the plaintiff. Plaintiff claims interest in said sum so as aforesaid paid by him.”
Afterwards the plaintiff filed an amendment to his bill of particulars, setting up that he would prove, under his declaration, that said corporation, and the officers thereof, had no authority to issue the shares of stock thus fraudulently .sold to plaintiff; that the same was issued without lawful authority therefor, and was void; and that said officers fraudulently represented to said plaintiff that the same was valid stock of said corporation, which representation said plaintiff, at the time of said purchase, relied upon and believed to be true.
The defendant pleaded the general issue, and gave notice thereunder that, at the .time of the commencement of the suit, the defendant corporation was largely indebted, and unable to meet all its liabilities in the ordinary course of business, which indebtedness was contracted and liabilities incurred after plaintiff subscribed for capital stock in the •corporation, and while he was a stockholder therein; and being so indebted, on July 28, 1884, made a voluntary -assignment for the benefit of its creditors, and afterwards, on the twelfth day of August, 1884, upon a bill filed by certain of its creditors against defendant and the assignee and certain attaching creditors, Abram Stebbins, the assignee, was, by the order of the circuit court for the county of Wayne, in chancery, appointed receiver of the assets of defendant corporation, who duly qualified as such, and received from the defendant corporation a conveyance of all its property and effects, and became invested with all the-rights and interests in the property that was conveyed to the assignee by the assignment, and became charged with the duty of converting the estate and assets of the corporation into money, and paying its indebtedness if the assets shall prove sufficient, otherwise pro rata.
The receiver took upon himself the burthen of defending-the action for the benefit of the .creditors represented by him.
The testimony shows that the plaintiff subscribed for 200 shares, of the par value of $25 each, of the capital stock of defendant corporation, on or about the twenty-fourth of January, A. D. 1884, and agreed to and did pay therefor $26 a share, and interest from February 1, 1883, with the agreement that he should participate in the dividends and profits from that date, and he received a certificate of stock for the 200 shares, dated January 25, 1884, signed by the president, and secretary of the corporation.
The plaintiff thereafter, and on March 4, 1884, by his duly-authorized proxy, attended a meeting of the stockholders of the corporation, at which certain corporate business was transacted, and an adjournment had until April 4, 1884, at which adjourned meeting plaintiff also attended by his-duly-appointed proxy. At this meeting, a dividend of 7 per cent, was declared, payable June 1, 1884, and passing the balance of the profits for the year past to surplus account. It was unanimously resolved that they, the stockholders, fully concur in and approve of the manner in which the directors- disposed of the profits of: the last year’s business, and that their action be ratified and approved.
The directors also reported to this meeting that, in view of the increased business of the company, it was expedient to increase the capital stock $100,000, and they recommended that the capital stock be increased from $300,000 to $400,-000. The stockholders thereupon resolved that the capital stock be increased from $300,000 to $400,000, divided into shares of $25 each, and that the board of directors be increased from five to seven; that the president and directors make the necessary certificates thereof, to be signed and recorded in the office of the Secretary of State and the county clerk’s office of the county of Wayne. The board of directors was authorized to issue the increased stock when in their judgment the business required it.
After this action, and after the subscription of plaintiff, stock was subscribed, paid for, and issued to nine different, persons, aggregating $32,500.
Between the date of plaintiff’s subscription and the assignment, new indebtedness and liabilities were incurred to-the amount of over $250,000, ¿which constitute the bulk of the indebtedness of the defendant corporation. The plaintiff received the dividend, of 7 per cent, upon his stock, which was paid him on the second day of June, 1884. Soon after this rumors were afloat that the corporation was in financial distress. Meetings of the stockholders were called, and plaintiff attended. A committee of three stockholders, of' which the plaintiff was one, met to investigate the affairs of the company, and see whether the rumors and gossip about the company’s condition were true or not. He went, with another member of the committee, who was an experienced book-keeper, and ascertained that there was not any way of getting out. The result of the investigation was that they were of the opinion that they could not find out anything-from the books, without a detailed inventory of the assets off the company.
Mr. Bewick, who was acting as general manager, made an inventory, but before it was fully completed attachments were levied upon the property, aggregating over $70,000, in the main by persons who had subscribed for stock, and who ■claimed that such subscription was obtained by fraud. Plaintiff knew of these attachments, and of the grounds upon which they were issued, from one to three days before he tendered back his dividend, which he did after being informed of the result of the inventory. He then instituted-this suit on the same day that the assignment was executed, but previously thereto.
The court took the case from the jury by directing a ver•dict for the defendant.
The question raised by the record is whether one who buys stock of a corporation, attends stockholders’ meetings, votes to increase the capital stock, votes and receives dividends, .and does nothing to repudiate or rescind the contract for six months, is not estopped, by his conduct and laches, from re•scinding his contract of subscription on the ground of fraud, after the corporation has become insolvent, as against creditors of such corporation who have become such after he ■became a subscriber and before the contract is rescinded.
In passing upon this question, it is quite unnecessary to ■decide or even express any opinion whether the testimony-shows that the fraud alleged in plaintiff’s bill of particulars was made out upon the trial. I do not myself see how fraud ■can be made out or inferred from acomparison of inventories made while the corporation was in active operation, and, so far as appears, free from embarrassment, with those after financial disaster had overtaken the corporation. It would .seem that the plaintiff ought to be required to show that the inventories upon which the representations to him were based •were false and fraudulent, and made for a fraudulent purpose. The question of fraud, not having been submitted to ■the jury, must, in the disposition of the question now before ■us, be.deemed to have been established.
The rule that fraud vitiates all contracts, at the option off the person defrauded, applies as well to stock subscriptions in a corporation as to other contracts. Vreeland v. New Jersey Stone Co., 29 N. J. Eq. 188.
Contracts induced by fraud are hot void, but voidable, and the injured party has a right to have them abrogated. Relief can be had either at law or in equity, but will not be granted where the subscriber has been guilty of negligence in informing himself of the actual facts, or where, in consequence of his delay in repudiating the contract, innocent third parties, either shareholders or creditors, have acquired rights which would be prejudiced by its rescission. Thomp. Liab. Stockh. § 142. And it makes no difference in what aspect the question is raised, — whether the subscriber who has paid for his-stock repudiates the contract on the ground of fraud, and sues to recover it back, or the subscriber is sued for unpaid subscription, and defends on the ground of fraud. In either case, if the stock subscriber has been negligent in informing himself of the actual facts, or if, in consequence of his-apparent relations with the corporation as a stock subscriber, innocent third parties have acquired rights upon the faith off such relation which would be prejudiced by his rescission, he will be held as a subscriber, and will not be allowed, in the one case, to withdraw the capital which he has paid in, or, in the other, to escape payment. Ogilvie v. Knox Ins. Co., 22 How. 380; Upton v. Tribilcock, 91 U. S. 45; Chubb v. Upton, 95 Id. 667; Payson v. Withers, 5 Biss. 269.
The rule requiring the party defrauded to proceed with dil-» igence to ascertain the truth or falsehood of such representations in order to entitle him to a rescission of the contract is well established in the courts both of this country and England. Haff v. Jenney, 54 Mich. 511; Dickinson v. Seaver, 44 Id. 624, 630, 631; Cunningham v. Edgefield & K. R. R. Co., 2 Head (Tenn.), 23; Upton v. Englehart, 3 Dill. C. C. 496, 506; Farrar v. Walker, 13 N. B. R. 82; Oakes v. Turquand, L. R. 2 H. L. 325; Lawrence’s Case, L. R. 2 Ch. App. 412; Kincaid’s Case, Id. 426; Wilkinson’s Case, Id. 536; Peel’s Case, Id. 674, 684.
But want of diligence alone in discovering the fraud, when the rights of third parties have not intervened, will not affect the right to rescind. Dayton v. Monroe, 47 Mich. 193.
The action for money had and received is an equitable one, .and any facts and circumstances may be given in defense to the action which show that in equity and good conscience the plaintiff ought not to recover.
The rule, so well established, that one who claims to have been defrauded must be diligent in discovering the fraud, is .applicable here. I do not see from the testimony that any diligence was exercised on the part of the plaintiff to discover whether the statements which he claims were made to induce him to purchase the stock in question were true or not.
As between him and creditors of the corporation whose rights have intervened since he apparently became a member of the corporation, he must be held to have had a knowledge of the condition of the corporation and its affairs. He was in a position where he could ascertain, and where it was his right and duty to ascertain, its condition before taking action which would affect their rights. He should have investigated the standing of the corporation before voting to increase its capital stock, and authorizing its sale; for if he was at that time defrauded, — and he then was, if ever, — by his act and participation in the stockholders’ meeting he perpetrated a «fraud upon others who subscribed to this increased stock. He does 'not invoke the equitable doctrine with clean hands. Some of the debts incurred after he subscribed Avere for labor, and for such debts the law makes the stockholders individually liable. The assets are not sufficient to pay the debts in full. This liability he escapes if he prevails in this .-action, and leaves the burden of the labor debts to be borne, in part at least, by those who took the stock which he voted to issue.
The rule which should control actions of this kind is, I think, correctly stated in Morawetz (1st ed.) on the Law of Private Corporations (section 595). He says:
“ When a person subscribes to the capital stock of a corporation, he must be held to contemplate and intend that the corporation shall incur debts and pledge its capital, including the subscriptions of its members,.as security. Creditors who in good faith trust the corporation upon the faith of this security stand in the position of innocent purchasers for value, to the extent of their equitable lien; and it would be .most unjust to permit a stock subscriber to disaffirm his contract, and refuse to pay his share of the capital, after it has thus been pledged, with his knowledge and consent, to innocent third parties. It has accordingly been settled that, if a corporation is insolvent, a shareholder whose contract of subscription was obtained by the fraud of the company’s agents cannot diminish the security of Iona fide creditors by rescinding his contract to contribute the amount of capital ■subscribed by him.”
The authorities cited in the note, both English and American, support the text. These decisions are based upon the .ground that the rights of creditors have intervened before the' contract was repudiated, and the insolvency of the corporation. To affect the right, there must be both creditors and insolvency or bankruptcy of the corporation before the right to rescind is exercised. In this case the right to rescind was not asserted or exercised until after plaintiff knew of the insolvency of the corporation, and the rights of creditors, who are represented by the receiver in this case, had intervened. It was then too late. Their rights are superior to his, because of his conduct and laches. The following authorities support the views above expressed: In re Reciprocity Bank, 22 N. Y. 17; McHose v. Wheeler, 45 Penn. St. 32; Haywood, etc., Co. v. Bryan, 6 Jones, Law, 82; Greenville, etc., R. R. Co. v. Coleman, 5 Rich. Law, 118; Graff v. Pittsburgh, etc., R. R. Co., 31 Penn. St. 489; Hays v. Pittsburgh, etc., R. R. Co., 38 Id. 81; Dayton, etc., R. R. Co. v. Hatch, 1 Disn. 84; Hager v. Cleveland, 36 Md. 476; Pott v. Eyton, 3 C. B. 32; Hoare’s Case, 2 Johns. & H. 229; Gouthwaite’s Case, 3 De Gex & S. 258; Philadelphia, etc., R. R. Co. v. Cowell, 28 Penn. St. 329; Hull Flax & Cotton Mill Co. v. Wellesley, 6 Hurl. & N. 38; Adler v. Milwaukee Patent Brick Co., 13 Wis. 60; Sanger v. Upton, 91 U. S. 60.
In the last case it was held that the capital stock of unincorporated company is publicly pledged to those who deal with the corporation for their security, and that creditors-have a lien upon it for the payment of their debts; that, when debts are incurred, a contract arises with the creditors-that it shall not be withdrawn or applied otherwise than upon their demands until such demands are satisfied.
I think, under the facts of this case, the judgment of the-superior court should be affirmed.
Morse, J., concurred with Champlin, J.
Oampb ell, C. J.
This suit was brought to recover back: the money paid for stock of the defendant corporation, on' the ground that it was obtained by false representations' amounting to legal fraud. The suit is defended in the interest of the receiver, who occupies the place of an assignee under a general assignment made by the defendant corporation, and therefore represents the insolvent estate. The court below, upon the trial, ordered a verdict for defendant, upon the ground that he had lost his right of action, if one existed.
The plaintiff’s suit was begun by levy of attachment, on the twenty-eighth day of July,' 1884, previous to the assignment, which was made the same day. The purchase was made in January, 1884, from Mr. Barnum, the chief stockholder and officer of the corporation, who sold the stock for the corporation, and did so upon representations of a state of facts which, if correct, would have made it valu able. After the purchase, Mr. Duffield acted like any other stockholder, attending meetings in person or hy proxy, and in June received a dividend, which he tendered back before repudiating the purchase. The testimony did not tend to show any knowledge by him of the real condition of affairs until the time he renounced his purchase. The directors who had .made reports concerning the state of affairs, of a ñattering kind, appear to have been deceived themselves in the matter, and probably not to have done intentional wrong.
The case of fraud was sufficiently made out by testimony. It has been settled here as well as elsewhere that legal fraud exists when a person has been misled, to his injury, by false statements of fact, on which he was induced to rely and act, whether those who led him into tho arrangement knew of the falsehood or not. Mr. Barnum, who was authorized to bring about the sale, which was acquiesced in by the corporation, represented it in what he did and said, and it was there-' fore responsi'le for his doings. Tho testimony bore fully on the representations and their incorrectness, and they were not only material, but so important that no person of good sense would have made the purchase had he known the real condition of affairs. That such false statements, acted on, are in themselves sufficient to make out fraud, notwithstanding a possible innocence of actual fraudulent knowledge to the contrary, see Converse v. Blumrich, 14 Mich. 123, and the other Michigan cases following it, cited by counsel.
This doctrine has been applied directly to cases of fraud in' obtaining stock subscriptions, in Smith’s Case, In re Reese River Silver Min. Co., L. R. 2 Ch. App. 604.
It is not questionable that, where such a fraud has been committed by a corporation, the stock may be repudiated, and suit brought for the consideration, or case brought for damages. Upon this there is no conflict; and unless, by reason of subsequent waiver, the party injured has lost his action, he can recover. The court below held, as matter of law, that he had become estopped, and lost his remedy.
There is no ground in reason, and very little, if any, in authority, which makes mere delay much longer than this fatal to an action, if the fraud is not discovered. Neither is there any ground for holding a person to have lost his remedy by acting, until such discovery, in the same way as any other stockholder. That a stockholder should not culpably shut his eyes when informed of essential facts .is, of course, true. But he is not culpable or negligent unless he omits to discover what he ought to have discovered; and the law requires nothing which is unreasonable. In the multitude of corporate enterprises, with numerous stockholders, which are found doing business everywhere, a stockholder .who is not an officer cannot usually have means or be expected to acquaint himself with the internal affairs of the company. He usually has a right to place reliance on the statements and representations of those who are in charge of the business, and required by their official obligations to examine into it, and keep their shareholders properly informed of the condition of affairs. Unless some peculiar circumstances arise, a stockholder cannot intermeddle with business details, or require information except by the usual methods. The action of the directors in this company was such as was apparently regular and based on their knowledge, and their declaration of a dividend was the strongest assurance of their estimate of its financial profits. There is nothing in the record, that we have discovered, which put the plaintiff in fault for assuming that they had done their duty.
It does not appear to us that the regularity of the issue of this stock is open in this suit. The purchaser had means of knowing what stock he was purchasing, as all steps to in crease the capital stock are within reach of any one concerned to find them. And we are not prepared to say that there was any fatal defect in those proceedings.
The question seems to be narrowed to the inquiry whether plaintiff is deprived of his remedy by the subsequent assignment. If there was no fault in not discovering the wrong, and if the suit was brought before any opposing claims had obtained a preference, it cannot be said there was. any waiver, and it is difficult to see anything which can be treated as an estoppel.
There is no foundation in reason or in law, so far as we can discover, for holding that he is debarred of complaint because others have also been subsequently defrauded. A creditor who becomes such by fraud in obtaining his money for one purpose has as distinct an equity as those who were afterwards defrauded or persuaded into giving credit for goods or supplies. Under our statutes, stockholders are not personally liable to contribute beyond what will pay up their stock, and creditors cannot enforce any rights, under the assignment, against paid-up stock at all. But the suit of plaintiff is based on the claim that he never was properly to be considered a stockholder by the company; and, under this assignment, if anything had remained unpaid on his shares, it would have been as a balance collectible by the company as his subscription, and not a debt due to creditors themselves as such.
In England the winding-up process is mainly to enforce contribution from shareholders, upon the theory that credit is given them as such. But even there it is very clearly held that the distinction taken between defrauded stockhollers who sue before winding-up proceedings, and those who delay until after, does not depend upon any principle of estoppel in favor of creditors acting in faith of their membership, but upon the legal position which they are placed in by the winding-up proceedings, whereby all persons registered as share holders become, by operation of law, bound to contribute, because those proceedings themselves fix their status.
This is very clearly explained in Stone v. City & County Bank, Limited, 3 C. P. Div. 282; and in that same case, where the authorities are reviewed and explained, it was strongly intimated that while, after proceedings begun for winding up, the plaintiffs could not avoid being treated as shareholders, they might have sued in that capacity for the damages incurred by the fraud of the company which induced them to buy stock, and been treated as creditors for the damages.
In Smith’s Case, before cited, it was expressly decided that creditors had no better claim than defrauded shareholders to sue for redress, and could not be preferred to them under circumstances which did not fix a legal priority. Lord Cairns there remarks:
“ It is one of the risks, and it ought to be known that it is one of the risks, which creditors are liable to in dealing with limited companies, that it may turn out that some person whose name has been entered as a shareholder in the list has a right to have his name taken off the list, if he can prove that it has been fraudulently inserted there, and if he comes with promptitude to have the fraud redressed.”
In other words, it is considered that, unless personally in the wrong in some way, all creditors stand on an equal footing for redress until, by some process which the law has authorized to have that effect, they are placed on a different footing; and, if this is so, any remedy which is seasonably resorted to must be sustained.
It is the settled law of this State that a creditor who has obtained security by attachment or otherwise before a general assignment cannot be deprived of his preference by that or any other subsequent action of his debtor. If he was defrauded, it is equitable that he should have a remedy; and, if he has not contributed himself to mislead other creditors, there is no legal provision in this State to prevent him from seeking it in tbe same way as if no other creditors existed. None of our corporation statutes create any such difference in ordinary cases. How far it is done in the specific cases of personal liability existing in some instances by constitutional or statutory provisions we need not inquire. The present caséis no such case, and the assignee, or the receiver, who represents him, only holds the property and rights of the corporation, and not rights which the company itself could ■not enforce, except, perhaps, where property of the company has been fraudulently transferred. In this respect it varies considerably from the English winding-up acts. But, as the .suit here preceded the assignment, it would have been in season even there.
In our opinion, the plaintiff had a plain right to maintain his action, based on the fraud complained of, and the court below erred in holding otherwise.
The judgment should be reversed, and a new trial ordered.
Sherwood, J., concurred with Campbell, O. J.
Isaac Marston, counsel for appellant, cited: Steinbach v. Hill, 25 Mich. 78; Beebe v. Knapp, 28 Id. 76; Stone v. Covell, 29 Id. 364; Webster v. Bailey, 31 Id. 36; Match v. Hunt, 38 Id. 6; Baughman v. Gould, 45 Id. 482; Tregent v. Maybee, 51 Id. 191. | [
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Campbell, C. J.
By Act No. 35 of the Laws of 1885 (Laws 1885, p. 32), under which the county of Iron was organized, it was provided that the temporary county-seat should be at Iron Kiver until the permanent county-seat should be fixed as in said act provided. The act further required that the permanent county-seat should be determined by vote at the next general State election, which would occur in 1886, when the qualified voters were to east their ballots for such place as they should designate, and the place receiving the highest number of votes should be the permanent county-seat. These votes were to be canvassed by a board, consisting of persons appointed on the day of election by the several boards of township inspectors, who were to meet at Iron River on the second Tuesday succeeding the election, and canvass them. It was made the duty of the secretary of said board to “file a certificate of the number of votes cast for each location voted for, for said county-seat, and a certificate of the place designated and selected by said votes, signed and certified by himself as secretary, and countersigned by the chairman, with the Secretary of State, and with the township clerks of the several townships of said county.”
This board met and organized, and adjourned without canvassing the votes. A mandamus is now asked to compel them to meet and make the canvass.
The return does not deny that they met and adjourned without day; and claims that, having done so, they have gone out of office, and have no further functions.
They further claim that no legal votes were cast; the only intelligible ground for this claim being the alleged invalidity of the statute. They also claim that no legal ballots were cast for the place which received the majority of all the votes cast at the election, which were for “Crystal Falls/’ because there is such a township of large dimensions, and no definite place named within it. They also claim that no notice was given of the general election, and that separate boxes were provided for county-seat ballots; and they undertake to set up various other reasons, resting on alleged frauds and irregularities in the election at different precincts.
Before considering the statute as regards its legal validity, it is proper to refer to the various methods attempted by respondents to"avoid the performance of their legal duties. This statute defines who shall be canvassers, and respondents are the canvassers provided for. It requires them to organize with chairman and secretary, which they also have done. It then imposes upon them the single and specific duty of ■canvassing the votes certified by the election officers, and •certifying the number of votes cast for each location, and the place designated. They are not a judicial or quasi judicial body. They are not a permanent body with administrative functions. They are created for a single occasion and for a single object. They have no means given them to inquire, ■and no right to inquire, beyond the returns of the local election boards. They have no right to raise outside issues to decide themselves, or to ask us to decide. When they have figured up the returns exactly as handed over to them, they have completed their task and exhausted their powers. Until they have done so, they have no right to dissolve their meeting. They can only get out of their office by completing its work. It would be worse than absurd to allow a board of canvassers to defeat the popular will, and destroy an •election, by refusing or neglecting to do what the law requires them to do. They may bring themselves within the punishment of the law by such misconduct, but they cannot destroy the vote.
We do not very well see what they have to do with inquiring whether the ballot-boxes were separate or single, nor is it their function to inquire into the geographical character of the vote. But we have no doubt that a separate ballot-box was lawful, and more convenient than any other. This is expressly provided for on votes to remove county-seats. How. Stat. § 491. Neither is there any difficulty in holding that the vote for “ Crystal Falls ” means the settlement of that name. The law does not require the county-seat to be •on a particular village or city lot or square, although there have been some instances of that kind; and it cannot be presumed that, as between a large territory and a fixed settlement, the location was meant to be at large and not definite.
The statute makes the time and occasion of this election imperative. It is required to be at the next general State election. Where such a direction is given, it cannot be made nugatory by any failure to give notice. Every one is bound to take notice of what the statute requires. People v. Hartwell, 12 Mich. 508; People v. Witherell, 14 Id. 48.
An objection is also made to the jurisdiction of this Court because it is claimed that the proceeding- to fix the county-seat is a political one, and does not involve judicial questions. The cases referred to by counsel are those where certain nonjudicial bodies are given the determination and management of various public affairs, and given powers of final judgment» Such is the case where proceedings have been regularly carried to an election under the statutes relating to the removal of county-seats. Attorney General v. Supervisors of Lake Co., 33 Mich. 289; Attorney General v. Supervisors of Benzie Co., 34 Id. 211; Hipp v. Supervisors of Charlevoix Co., 62 Id. 456.
But it is within the province of courts to restrain public bodies, and officers of counties and other municipal divisions,, from exceeding their jurisdiction, and also to require them to perform such specific duties as the law imposes on them. The power to review action which is not judicial is in no way similar to the power to keep respondents within the line of their duty. This jurisdiction is constantly exercised, and the doctrine too elementary to discuss. Every term of court presents instances of such interference.
The only really pertinent question presented is whether the law itself is valid. The clause of the Constitution supposed to stand in the way is section 8 of article 10, which declares that—
“ No county-seat, once established, shall be' removed until the place to which it is proposed to be removed shall be designated by two-thirds of the board of supervisors of the county, and a majority of the electors voting thereon shall have voted in favor of the proposed location in such manner as shall be prescribed by law.”
It is not seriously contended, and could not be under our Constitution, that the Legislature may not make such pro vision as they see fit for the original establishment of the county-seat of any county. Rice v. Shay, 43 Mich. 380. But it is claimed that the statute of 1885 established the county-seat of this county at Iron Eiver, and so exhausted its power.
It is very clear that this was not the purpose of the act. It is impossible to get county business started efficiently without some place where it is temporarily centralized. Sometimes this is done by requiring courts and other bodies to meet at some place named or appointed until a county-seat is established, and sometimes by naming some place directly as a temporary county-seat for all purposes. Such a temporary selection is in no sense an establishment. That means a selection intended to be permanent. Undoubtedly it might be possible, under the pretext of a temporary selection, to attempt to do something more. But that is not to be anticipated. If the Legislature, instead of fixing the place themselves, or appointing commissioners to do so, as we held was lawful in Rice v. Shay, supra, preferred, as they did here, to let the people themselves indicate their preference, it could only be done effectively at some election at which the people would be likely to vote, and until such election there must be some place for doing county business. When this act was attacked on a precisely similar constitutional ground on the appointment of county officers for Iron •county, we held in Attorney General v. Weimer, 59 Mich. 580, that the constitutional right of the people to choose their own officers was not infringed by the provisional appointment of persons to act as county officers until a regular election should be held at the next general election, which was the same election at which the county-seat was voted on. The principles then laid down were precisely analagous to those that govern this case. Provisional action for the purpose of setting county affairs in motion cannot be dealt with as permanent action. We think there is no room for doubting the purpose of the Legislature in making the location at Iron River temporary and provisional.
The bitterness and persistency with which the establishment of this county has been obstructed have been very noticeable, and have gone beyond reason. It is the duty of the persons intrusted with public functions to obey the statute. In the present case there has been a plain disregard of legal provisions, which, if the respondents obeyed far enough to hold and organize their meeting, should have been, followed out to a conclusion. The rights of the people cannot be allowed to be thus violated. The mandamus will be allowed as prayed, requiring prompt action.
The other Justices concurred. | [
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Morse, J.
The controversy in this suit is stated in 58 Mich. 148, by Justice Sherwood, in his opinion filed when the case was here before.
The claim of the plaintiff is for driving logs for the defendant, put afloat in the Chippewa river in 1883; which logs were hard-wood, and marked “ Diamond F.” He also sued upon the claim of one Curry, assigned to him, for driving hard-wood logs in the same river, put afloat therein by the ■defendant in 1882, and marked “ E. F. E.” For the driving of these logs he and Curry were to receive each 20 cents per 1,000 feet.
The defendant claims that Curry abandoned his drive, and notified him that he should not go back after the logs left behind; that by this action on Curry’s part, and also the negligence of both Curry and Hudson in not taking proper care in driving the logs, many of them were left along the stream, to his damage, which damage he sought to recoup against plaintiff’s claim, and which he contends amounted to more than said claim.
The jury found a verdict for plaintiff for $84.35.
A number of errors are assigned, some of which do not need discussion.
A witness, Michael Garvin, was permitted to testify, against ■objection, that he was employed by Curry to pay off men that worked on the river, and to detail the manner in which he paid them off, and what Curry told him about paying them, and how to pay them. He did not. know where the men that he paid off were working. Upon objection being made that this evidence was incompetent and immaterial, and upon motion to strike it out of the case, plaintiff’s counsel stated that he proposed to show, as evidence tending to prove that Curry endeavored to take in his rear, including the “ E. F. E.” logs of defendant, that he employed the witness, Garvin, to settle with the men who worked on this drive, and that he proposed to follow it up by the testimony of witnesses Hoe and Campbell that Curry sought to take in his rear, and sent his foreman and Campbell and others back to take it in, but they could not do so on account of the stage of the water; and that, if the logs left behind had not been-taken out of the stream and sawed by the defendant, there was high water later in the season, by which they might have been run out.
The testimony was permitted to stand, and witness further to state that among the men paid by him were Curry’s foreman — Hoe—and Campbell.
Plaintiff’s counsel failed, however, to introduce any evidence in support of his proposition, outside of Garvin’s, although Campbell was sworn as a witness, and the deposition of Curry introduced in evidence. This failure left Garvin’s evidence unsupported by the proposed showing, and clearly incompetent and immaterial.
It was probably used as a basis before the jury for the claim that Curry did go back and try to take up his rear. The circuit judge, in his charge to the jury, stated correctly that Curry must be responsible for the damage and expense-occasioned to the defendant by any want of diligence in driving the logs; or, if the jury found that Curry stated to the agent of defendant that he would not go back and take any of the logs that were left behind, and, in consequence of such statement, defendant went back himself and took the logs out of the stream, at Mt. Pleasant, and sawed them into lumber, and that was the most reasonable way of taking care of them to prevent loss, then, as to such logs as Curry might, have got had he gone back and taken in his rear, the defendant could charge, in this suit, to Curry the extra expense it was to him over and above what it would have cost had they been run down the river to Saginaw. But he qualified this as follows:
“If, however, you find that Mr. Curry did not absolutely refuse to go back and take in the rear, but declined only to go back at that particular period of time, when he was requested to do so by Mr. Brazee [the agent of defendant], and at that time it was impossible, from the very nature of the stream, for him to comply with Brazee’s request, under such circumstances he would only be responsible for such logs as he neglected to drive in the early spring; and he ought, under such circumstances, to have had the opportunity of going back and taking in the rear, if he desired to.”
There was absolutely no evidence upon which to ground this portion of the charge, except the testimony of Garvin, and the proposal of plaintiff’s counsel to follow it up by.other evidence, which he failed to do.
If this incompetent and immaterial evidence of Garvin, coupled with the counsel’s offer, misled the court, as it evidently did, it probably had the same effect upon the jury, which effect, under this charge of the court, may have influenced the verdict.
The evidence appears to be uncontradicted that Curry refused to go back and take in. his rear at all, and that he did not go back for that purpose. He does not deny this in his deposition.
For these errors the judgment in the court below will be reversed, and a new trial granted. I find no other error prejudicial to the defendant in the proceedings.
The other Justices concurred. | [
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T. M. Burns, P. J.
Plaintiffs purchased their home in Genesee County in February, 1962. In 1965, plaintiffs began to experience flooding in their basement which they traced to an east-west storm sewer drain running under their property. Plaintiffs checked the public records and found that said drain was never recorded.
Plaintiffs’ basement continued to flood at least once annually. After several requests to the county drain commission to take whatever action was necessary to stop the flooding and after the county health department reported that the drain was carrying raw sewage, which when flooded created a serious health hazard, plaintiffs requested that the drain be dug up and rerouted. The county informed plaintiffs that the condition complained of was a private matter and would have to be done at their own cost.
Plaintiffs then filed their suit against the defendants on October 20, 1972. Count one alleged that since no easement for the drain had been recorded, the drain commissioner was trespassing on their property. Count two alleged that due to disrepair and lack of maintenance of the drain, a nuisance had been created which not only caused damage to plaintiffs’ home, but also created a serious health hazard.
On January 11, 1973, defendants filed their answer and a motion for accelerated judgment on the ground that the initial damages had occurred more than three years before suit was commenced, and thus any cause of action was barred by the statute of limitations.
After a hearing on the motion, the trial court granted defendants’ motion for accelerated judgment and entered an order on March 21, 1973, dismissing plaintiffs’ action. It is from this order granting accelerated judgment that plaintiffs appeal.
Plaintiffs raise two issues in this Court which shall be discussed in the manner presented below.
Plaintiffs first contend that the statute of limitations for a nuisance does not begin to run at the time the nuisance is discovered when the nuisance is of a continuing nature.
The law is clear that where there are wrongful acts of a continuing nature, the statute of limitations does not begin to run from the date of the first act. In Defnet v Detroit, 327 Mich 254; 41 NW2d 539 (1950), the plaintiffs sued the City of Detroit for trespass due to the existence of a city-owned sewer running under their property. Upon obtaining a deed to their house in 1928, they were informed by their grantor that there was a "blocked off” sewer under their property. The next year cracks appeared in their house and it began to settle. Other damages developed later, and continued as late as 1944. In 1945, plaintiffs filed a bill in equity and a jury awarded them damages of $5,000. The trial court set aside the verdict and entered judgment for the defendant because, among other reasons, the trial court determined that the statute of limitations had run. The Supreme Court, in vacating the trial court’s judgment and remanding the cause for entry of a judgment on the jury’s verdict, stated:
"Where there are continuing wrongful acts within the period limited by statute (1948 CL 609.13 [MSA 27.605]), recovery is not barred. Longton v Stedman, 196 Mich 543; 162 NW 947 (1917). See also Grand Rapids & Indiana R Co v Heisel, 47 Mich 393; 11 NW 212 (1882); Phelps v City of Detroit, 120 Mich 447; 79 NW 640 (1899); Long v New York Central R Co, 248 Mich 437; 227 NW 739 (1929); and Bator v Ford Motor Co, 269 Mich 648, 669; 257 NW 906 (1934).”
In Phelps v Detroit, 120 Mich 447; 79 NW 640 (1899), cited with approval in Defnet, supra, the Court held that the fact that a nuisance is of such a permanent character that it will continue without change from any cause but human labor, does not preclude application of the rule that the statute of limitations does not bar recovery from a continuing wrong which has subsisted during the limitation period preceding the commencement of the action.
Based on the authorities cited above, we hold that the trial court erred in dismissing the case on the ground that the statute of limitations had run. It is clear that the acts complained of by plaintiffs were continuing in nature and thus the statute of limitations does not apply to bar recovery. Whether or not they were wrongful is a matter to be decided by the trial court or a jury at trial.
The second and final question to be decided on this appeal is whether the drain commissioner’s failure to publicly record the easement constituted a trespass against the property of the plaintiffs.
Plaintiffs assert that under MCLA 280.11; MSA 11.1011, the defendant drain commissioner was required to record all easements in his possession at the time of the enactment of this statute in 1955. Plaintiffs, therefore, claim that since this was not done, the presence of the drain on their property constitutes a continuing trespass. We disagree.
At the time this easement was obtained, 1923 PA 316, a predecessor of the current statute, was in effect. That act provided that easements such as the one in question were to be recorded in the office of the county drain commissioner. In 1929, the easement in question was obtained and recorded in the office of the county drain commissioner as the act required.
In 1955 the present law was enacted requiring recording with the register of deeds. However, this law makes no mention of existing easements, but rather requires that "all easements, rights-of-way or releases of damages hereafter obtained in connection with any existing drain shall be recorded in the office of the register of deeds * * * ”. There is no requirement to record prior existing easements. Therefore, there was no trespass on the part of the defendant drain commissioner.
For the reasons delineated above, the judgment is reversed and remanded.
All concurred. | [
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Van Valkenburg, J.
Defendant was found guilty by a jury on April 11, 1969, of the felony of robbery armed, MCLA 750.529; MSA 28.797, was sentenced to a prison term of from 10 to 20 years on May 16, 1969, and appeals on leave granted.
On December 1, 1967, a certain Detroit bar was held up by Andrew Goeppner and John Carl, III. Goeppner and Carl were found guilty in a joint nonjury trial and were sentenced to life imprisonment. Their convictions were affirmed by this Court. See 20 Mich App 425; 174 NW2d 143 (1969). Subsequent to that trial Carl implicated defendant. Both Carl and Goeppner testified at defendant’s trial to the effect that defendant herein planned the robbery, furnished the information as to where the money was kept within the bar, supplied the gun, and divided the proceeds; but that defendant remained in the automobile outside the bar during the perpetration of the robbery. Defendant took the stand and testified that while he knew Goeppner and Carl, he took no part in the robbery.
Somewhat more than two years after defendant’s conviction, Goeppner and Carl moved for new trials before the trial court. Their motions were granted. They thereafter pled guilty to armed robbery and were sentenced to 7-1/2 to 15 years.
On appeal defendant argues that he was denied due process and equal protection of the laws by reason of the fact that he received a harsher sentence than Goeppner and Carl received upon retrial. Defendant further argues that he did not receive a fair trial since the jury should have been informed of the deal made with Goeppner and Carl to secure their testimony and the jury should have been instructed as to the caution with which an accomplice’s testimony should be viewed.
Defendant’s argument with respect to equal protection of the laws is not. well founded. Equal protection does not demand equal sentences, providing the different sentence or treatment was not based upon some arbitrary classification such as race or religion. See People v Sawicki, v Mich App 467; 145 NW2d 236 (1966), and People v Smyers, 47 Mich App 61; 209 NW2d 281 (1973).
There is no question that if Goeppner’s and Carl’s testimony was secured by promises of leniency, the jury must be apprised of that fact. See Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972); People v Nettles, 41 Mich App 215; 199 NW2d 845 (1972). The question thus becomes whether there was, in fact, some deal made by the prosecutor to secure the testimony.
It should be noted that the question of whether a deal had been made was explored and argued at trial. Both the witnesses and the prosecutor denied that there was any deal made. Defendant, however, points to the fact that the witnesses were later granted new trials which resulted in reduced sentences. Had the temporal relationship between the giving of the testimony and the granting of the new trials been closer, we would be inclined to remand the matter to the trial court for a hearing to determine whether a deal had been made at the time of defendant’s trial. Here the very fact that the motions for new trial were made more than two years after the testimony was given militates against a finding that there was any deal made by the prosecutor to secure the testimony. The fact that the trial court may have taken the witnesses’ cooperation into consideration in granting the new trial would not affect the fairness of defendant’s trial, providing there was no hidden promise of leniency made to secure the witnesses’ testimony. Upon this record, we find that there is not a sufficient showing of any deal to justify further inquiry.
While defendant was probably entitled to an instruction as to the caution with which an accomplice’s testimony should be viewed, there is no need for the trial court to give such an instruction sua sponte. Defendant’s failure to request such an instruction precludes his raising such failure as error on appeal. GCR 1963, 516.2; see also People v Love, 43 Mich App 608; 204 NW2d 714 (1972).
The remainder of defendant’s allegations of error are of no merit. The question of the failure of the prosecutor to endorse and produce an alleged res gestae witness is not properly before this Court, since defendant failed to preserve the question by a motion to endorse before the trial court. Likewise the question of whether the verdict was against the great weight of the evidence was not preserved, since no motion for a new trial was made below.
Affirmed.
V. J. Brennan, P. J., concurred. | [
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V. J. Brennan, P. J.
Defendant, Joe Eddy Watson, appeals from his conviction of first-degree murder (MCLA 750.316; MSA 28,548) by a jury in the Recorder’s Court of the City of Detroit.
On this appeal defendant initially asserts, as he did in his motion for new trial, that his conviction and sentence should be reversed because the jury’s verdict was against the great weight of the evidence. The proper standard by which we must judge such a claim is whether the evidence presented during trial is sufficient to support a finding of guilt beyond a reasonable doubt. People v By num, 21 Mich App 596; 175 NW2d 870 (1970), lv den, 383 Mich 776 (1970). In the case at bar it was clearly established that a gunman, during the commission of an armed robbery, shot and killed Richard Holley, the deceased. Although the identity of defendant as the gunman was hotly contested in the court below, we cannot say that the evidence presented was insufficient to support a finding of guilt beyond a reasonable doubt. People v Hayton, 28 Mich App 673; 184 NW2d 755 (1970), lv den, 384 Mich 825 (1971). Witnesses were presented by the prosecution who testified that defendant was the person who shot the deceased and then bent over the body and removed his wallet. Defendant’s alibi was ably presented and the prosecution’s witnesses vigorously examined by defendant’s attorney. The credibility of identification testimony is a matter left solely to the jury who, after listening to all the testimony and viewing the demeanor of the witnesses, chose to disbelieve defendant. We are not about to substitute our judgment for theirs. People v Harper, 43 Mich App 500, 204 NW2d 263 (1972); People v Hayton, supra.
Defendant’s second and third assignments of error focus on the conduct of the trial judge in the proceedings below. Defendant contends that he was denied a fair trial and his cause prejudicially influenced in the minds of the jurors when the trial judge questioned certain of the witnesses, interrupted and criticized defendant’s attorney in the presence of the jury, and called a recess after defendant’s attorney had begun to cross-examine one of the witnesses. We find defendant’s allegations of error in this regard to be without merit. In order for us to find that the conduct of the trial judge constituted reversible error we would be required to say that what occurred prevented de fendant from having a fair and impartial trial. People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972), lv den, 388 Mich 809 (1972); People v Roby, 38 Mich App 387; 196 NW2d 346 (1972). This we are unable to do. The questions propounded by the trial judge were generally made in an attempt to clarify matters to which testimony had previously been directed and did not approach the degree of judicial impropriety condemned in People v Bedsole, 15 Mich App 459; 166 NW2d 642 (1969). The further acts of the trial judge which defendant relies upon to establish that he was denied a fair trial, when examined in the context of this heated trial, are not of the "magnitude necessary for reversal on the ground that the trial court pierced the veil of judicial impartiality”. People v Turner, 41 Mich App 744; 201 NW2d 115 (1972), lv den, 388 Mich 790 (1972). See MCLA 768.29; MSA 28.1052.
Defendant’s next assertion is that the trial judge abused her discretion when she denied, on two occasions, defendant’s requests that lineups be held, prior to any in-court identifications, for witnesses who had not confronted defendant prior to trial. Defendant properly recognizes that the decision to grant or deny such requests is left to the sound discretion of the trial judge. People ex rel Ingham County Prosecutor v East Lansing Municipal Judge, 42 Mich App 32; 201 NW2d 318 (1972). The test to be employed in determining whether the denial of such a motion requires reversal of a defendant’s conviction was stated in the following terms by the Ninth Circuit Court of Appeals in United States v Williams, 436 F2d 1166, 1168-69 (CA 9, 1970), cert den, 402 US 912 (1971).
"Absent abuse of that discretion resulting in procedure 'so unnecessarily suggestive and conducive to ir reparable mistaken identification’ as to amount to a denial of due process of law * * * we should not question the trial judge’s ruling.”
Defendant has failed to establish any such abuse of discretion in this case. Accordingly, we hold that reversible error was not here committed.
Defendant next contends that the trial judge committed reversible error by allowing the prosecution to introduce certain time cards into evidence. Defendant asserts that the admission of this evidence constituted a violation of his constitutional right of confrontation as guaranteed by Const 1963, art 1, § 20 and the Sixth Amendment to the United States Constitution. The time cards upon which defendant bases this assignment of error were admitted into evidence only after defendant’s attorney stated that he had no objection. The issue now sought to be raised by defendant with respect to the propriety of receiving these time cards into evidence is not, therefore, properly before us. Defendant’s attorney, by stating that he had no objection to the admission of these time cards, acquiesced in their admission and defendant cannot now be heard to complain. This was not a situation where defendant’s attorney failed to object to the proffered evidence, as was the case in People v Lester, 50 Mich App 725; 213 NW2d 793 (1973), but, rather, was a situation where defendant’s attorney, for whatever reason, acceded to the prosecution’s offer of evidence. We, therefore, decline the invitation to consider this issue on appeal.
Defendant finally alleges that certain remarks made by the prosecutor during the trial and in closing argument were so prejudicial as to deny him his right to a fair trial. We have closely examined the remarks of the prosecutor made during the course of the trial and find ourselves unable to say that they were so prejudicial as to cause the jury to suspend its own power of judgment in receiving the evidence before it. People v Gray, 45 Mich App 643; 207 NW2d 161 (1973); People v Turner, supra. The statements of the prosecutor made during closing argument which defendant also assigns as error were not objected to at trial. Since an objection and the appropriate curative instruction could have eliminated any prejudice arising therefrom, we are precluded from considering the issue of their appropriateness on this appeal. People v Tarpley, 41 Mich App 227; 199 NW2d 839 (1972); People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970).
Conviction affirmed.
Van Valkenburg, J., concurred. | [
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McGregor, P. J.
This case arises as a result of an accident which occurred when plaintiff, operating a motorcycle, struck a pile of gravel and debris in the parking lot of a shopping center owned by defendants Fastenberg and managed for them by defendant Woodsmall. Late on the date of May 2, 1968, the plaintiff rode his motorcycle from his residence to a bar located in the shopping center where he consumed a beer in the company of three friends, including one woman. Approximately one-half hour later, plaintiff left the bar with the woman to take her for a ride on his motorcycle. With the woman behind him on the motorcycle, plaintiff started the vehicle, accelerated it to approximately 20 miles per hour and, after travelling about 200 feet, struck a pile of gravel and debris which was approximately 4 feet high. This pile of debris was situated on a paved roadway which led to an exit from the shopping center parking lot. After the motorcycle struck the debris, the plaintiff lost control of it and fell to the pavement, sustaining a fractured kneecap and multiple dirt abrasions on his left arm and left leg in the fall.
Several witnesses testified that there were no lights illuminating the area at the time of the accident; there was, however, no testimony as to the condition of the pavement in the vicinity of the accident.
Plaintiff testified that he had difficulty seeing and distinguishing the pile of debris because it blended in with its surroundings and, further, that he had the low beam of his motorcycle headlight on while he was driving the vehicle. He also testified that, once he saw the pile of debris, he applied his rear brakes instantly, but that he did not apply his front brakes because he thought that such an act would result in the loss of control of the vehicle and that, by applying the rear brakes only he would be able to decelerate from approximately 20 miles per hour to approximately 5 miles per hour.
The pile of debris and gravel had been placed in the roadway by defendant Milbrand Maintenance Corporation, an independent contractor employed by defendants Woodsmall and Fastenberg to repair the roof on a store in the shopping center. In its contract with defendant Woodsmall, Milbrand Maintenance had agreed to keep the debris from this roofing construction cleared away so that it would not interfere with the activities of either the tenants or the customers of the shopping center.
At the close of plaintiff’s opening statement, the defendants unsuccessfully moved for a directed verdict. This motion was thereafter twice renewed and twice denied. The jury returned á verdict finding the defendants jointly and severally liable and assessing damages in the amount of $12,000.
On appeal, defendants argue that the trial court erred in denying their motions for a directed verdict and should have dismissed the case at the end of plaintiffs opening statement to the jury because the pleadings and opening statement failed to state a cause of action.
In this Court, defendants contend that, since they contracted with defendant Milbrand Maintenance, an independent contractor, to have the roof on one of the stores in the shopping center repaired, they owed no duty as a matter of law to plaintiff to see that the shopping center was safe for business invitees.
The general rule, which fully supports defendants’ position, is that a contractee is not vicariously liable for injuries to third persons which are sustained as a result of the negligence of an independent contractor employed by him. See Prosser, Torts (4th ed), § 71, p 468; 2 Restatement Torts, 2d, § 409, p 370; 41 Am Jur 2d, Independent Contractors, § 24, p 774; 57 CJS, Master and Servant, § 584, p 353. However, the difficulty in this, as in most cases involving independent contractors, is that the recitation of this general rule serves merely as a prelude to a discussion of why it does not apply. Although plaintiff has not seen fit to favor us with a brief in support of the trial court’s denial of defendants’ motions for a directed verdict, we would be remiss in our duty as an appellate court if we failed, for that reason, correctly to determine whether or not the general rule governs the disposition of this appeal.
In large measure, confusion in this area of the law is attributable to precedential disregard of a fundamental distinction when dealing with the nonapplicability of the general rule. There are a number of situations in which the general rule definitionally is not involved because the contractee is personally at fault, i.e., the contractee’s own negligence is a proximate cause of the injury sustained. For example, where the contractee negligently employs an incompetent contractor to perform work which results in injury to some third person, the contractee is held liable to the injured third person directly for his own negligence, rather than vicariously for that of his independent contractor. Although other courts have generally referred to such situations as exceptions to the general rule, it would seem analytically more accurate to denominate them exclusions from that rule, since vicarious liability is not involved and the rule is thus not called into play. Contrariwise, true exceptions involve factual settings in which the contractee, himself not negligent, is nonetheless held vicariously liable for the negligence of his independent contractor, notwithstanding the general rule. Generally, such liability is predicated upon a finding that the contractee owed a nondelegable or absolute duty to the third person which prevents the contractee from shifting the responsibility for the proper performance of the work to the contractor. We will analyze the present case in this conceptual framework.
It was established at trial that defendant Wood-small inspected the work of defendant Milbrand Maintenance three or four times per week. Thus, the most arguably pertinent exclusion from the general rule of nonliability is codified in 2 Restatement Torts, 2d, § 414, p 387, which states:
"One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”
However, on appeal, there is no indication that the inspections conducted by Mr. Woodsmall were intended to insure anything other than satisfactory completion of the work. In light of this fact, Comment C to § 414 is relevant:
"It is not enough [to impose liability under this section] that he [the contractee] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right to supervision that the contractor is not entirely free to do the work in his own way.” (Emphasis added.)
In our judgment, the facts adduced at trial support neither a finding nor a reasonable inference that defendant Milbrand Maintenance was "not entirely free to do the work in [its] own way”. Because of defendants’ lack of control over the manner in which the work was done, there can be no finding that defendants were personally negligent in this respect.
Having determined that there is nothing in the lower court record to support a finding that defendants were, themselves, negligent, the question remains whether they must answer for the negligence of defendant maintenance corporation.
It is precisely from this vicarious liability that the general rule proposes to shield the contractee. However, just as there are exclusions from the general rule, i.e., situations in which the general rule by its very terms does not apply, so, too, there are exceptions to the general rule, i.e., situations in which the general rule, although definitionally applicable, does not relieve the contractee of liability for the negligence of his independent contractor because of some overriding policy consideration. Because we now deal with the question of defendants’ vicarious or derivative liability, we must turn our attention to these exceptions.
It would serve no useful purpose for this Court to catalog the reasons why the great bulk of the judicially recognized exceptions to the general rule do not apply in this case. Rather than generating such dicta, we will focus our attention on, and limit our inquiry to, that exception which is obviously relevant to the question of defendants’ liability.
The facts adduced at trial clearly indicate that defendant lessors, through their agent Woodsmall, employed an independent contractor to make repairs on the leased premises and, as a result of the negligence of the independent contractor in making these repairs, plaintiff, a business invitee, was injured. Thus, the exception discussed and codified in 2 Restatement Torts, 2d, § 420, p 403, is pertinent:
"A lessor of land who employs an independent contractor to make repairs which the lessor is under no duty to make, is subject to the same liability to the lessee, and to others upon the land with the consent of the lessee, for physical harm caused by the contractor’s negligence in making or purporting to make the repairs as though the contractor’s conduct were that of the lessor.” (Emphasis added.)
Section 419 of Restatement 2d confirms that this same rule applies when the lessor is under a duty to make the repairs. The only difference between the lessor’s liability under § 419 and § 420 is that, in the former, the lessor may be liable for the contractor’s failure to make a repair at all, whereas there is no such liability under the latter section.
Similarly, Dean Prosser has noted:
"When the lessor does in fact attempt to make repairs, whether he is bound by a covenant to do so or not, and fails to exercise reasonable care, there is general agreement that he is liable for resulting injuries to the tenant or to members of his family or others on the premises in his right.
"When the lessor entrusts the repairs to an independent contractor, the general weight of authority is that his duty of care in making them cannot be delegated, and he will be liable for the contractor’s negligence. Nearly all courts are agreed on this where the work is done on a part of the premises over which the lessor has retained control, or where it is pursuant to his contract with the tenant, but there is a division of opinion where no control is retained, and the repairs to the leased premises are gratuitous. Even here the better view seems to be that the tenant’s right to rely on the landlord is such that the responsibility cannot be shifted; and the more recent cases have tended to take this position.” Prosser, Torts (4th ed), § 63, pp 410-412. (Emphasis added.)
This rule—that a landlord has a nondelegable duty both to his tenant and others rightfully on the premises with respect to repairs undertaken by him—finds further support in 49 Am Jur 2d, Landlord and Tenant, § 875, p 846:
"It is a well-established principle that one cannot relieve himself of the consequence of neglect in the performance of his agreement by employing an independent contractor to do the work, and the courts generally agree that a landlord who undertakes to make repairs or improvements for the benefit of his tenant, whether he is obligated by law or by agreement with the tenant to do so, or whether he does so gratuitously, cannot relieve himself from his liability for negligence in making such repairs or improvements by employing an independent contractor to do the work; if he does employ an independent contractor who does the work so negligently as to cause injury thereby, the landlord is liable to the same extent as if he had done the work himself. The landlord, in making repairs and improvements on the demised premises, owes a duty of reasonable care to the occupying tenant which he cannot escape by placing the work with an independent contractor, especially if the work to be done is attended with danger to the tenant or one in his right. The rule extends in favor of members of the tenant’s family and his guests and invitees—those to whom the landlord owes the same duty of care and protection from negligent injury as he does to the tenant. ” (Emphasis added.)
Michigan law on this problem is less than clear. With reference to the existence of a nondelegable duty, it is stated in 13 Callaghan’s Michigan Civil Jurisprudence, Independent Contractors, § 37, pp 314-315:
"The rule that where one owes an absolute duty to another, he cannot acquit himself of liability by delegating that duty to an independent contractor, has particular application to cases involving the relation of landlord and tenant. Thus, where a landlord undertakes to make repairs or improvements for his tenant, he cannot relieve himself of the consequences of neglect in the performance of his agreement by employing an independent contractor. Even though the repairs or reconstruction are made by a cotenant with the permission of the landlord, rather than by the landlord himself, the landlord remains liable to a tenant for damage resulting from the negligence of an independent contractor.”
Thus, in Michigan, a tenant may recover for property damage sustained as the result of the negligence of an independent contractor employed by the landlord to repair the leased premises. Such recovery is allowed irrespective of whether or not the landlord undertook to have the repairs gratuitously made or did so pursuant to the agreement between him and the lessee. Peerless Manufacturing Co v Bagley, 126 Mich 225, 85 NW 568 (1901).
The obvious difficulty in the instant case is whether or not such liability on the part of the landlord should extend to situations involving personal injuries to business invitees of the tenant.
This Court’s unaided research has disclosed only one Michigan case that deals with the question of a landlord’s liability for personal injuries sustained by a tenant’s business invitee as the result of the negligence of the landlord’s independent contractor, namely Sorenson v Kalamazoo Auto Sales Co, 201 Mich 318; 167 NW 982 (1918). In that case the plaintiff was injured when a gate on a garage elevator failed properly to close and he drove into the elevator shaft. The premises were owned by one Watkins and leased by him to defendant Kalamazoo Auto Sales Company, which operated the gabage. The defendant company frequently had the gate on an automobile elevator located in the garage repaired and maintained by one McNally. Shortly before the occurrence of the accident, the sales company was notified by Mc-Nally that it would be advisable to place the posts which supported the elevator gate nine inches further apart. The defendant sales company declined to pay the cost of putting the new posts in, whereupon McNally contacted defendant Watkins, who agreed to pay the necessary expense to set the posts further apart. As a result of the faulty operation of the gate, the plaintiff drove his car into the elevator, expecting, of course, that the elevator floor would be there. As he later learned, the elevator was one or two stories above the point at which he drove into the elevator shaft. Plaintiff instituted suit against both Watkins and the sales company, and recovered a verdict and judgment against both. Motions by each defendant for a directed verdict and judgment notwithstanding the verdict were denied, as were their motions for new trial. Defendants thereupon sought review in our Supreme Court.
On appeal, a majority of the Supreme Court reversed the judgment as to defendant Watkins and held that McNally was an independent contractor, for whose negligence defendant Watkins was not answerable. Although the basis of the majority’s decision is less than clear, they did note (p 335):
"Assuming, however, that at the moment of the accident the gate was not properly operating that fact cannot be used to fix liability upon defendant Watkins, the owner (Brady v Klein, 133 Mich 422; 95 NW 557 [1903]), because the sales company through their employee, Tucker, either knew or should have known of the defect.”
Two important aspects of the Sorenson case serve to distinguish it from the one presently under consideration. First, there is no contention in this case, as there was in Sorenson, that the landlord’s tenant knew or should have known of the defect. Indeed, the argument has been made here that the landlord’s agent knew or should have known of the defect. In light of Mr. Wood-small’s capacity as a supervising agent for defendants Fastenberg, it would appear that, if anyone could be chargeable with actual or constructive notice of the pile of gravel and debris, it would be the landlord and not the tenant. Second, in the Sorenson case, the repairs undertaken by the land lord had been completed at the time of the accident, whereas in this case, the repairs were still being made when the plaintiff was injured as a result of the independent contractor’s negligence.
Thus, in our view, the Sorenson case is distinguishable and does not provide a ready answer to the question before us now.
In the absence of controlling Michigan authority, we feel free to adopt the approach suggested by the Restatement, Dean Prosser, and American Jurisprudence. We do so in the belief that the views expressed by these authorities are consonant with those policy considerations which underly the concept of a nondelegable duty and are a logical extension of existing Michigan precedent.
As noted earlier, our Supreme Court has allowed recovery by a tenant against his landlord for property damage sustained as a result of the negligence of an independent contractor employed by the landlord to make repairs on the leased premises. Peerless Manufacturing Co v Bagley, supra. In that case the Court noted (p 229):
"There is, however, another rule, and which may be called an exception to that above stated, viz., that, where one owes an absolute duty to another, he cannot acquit himself of liability by delegating that duty to an independent contractor. To apply the rule to the present case, it may be thus stated: Where a landlord undertakes to make repairs or improvements for his tenant, he cannot relieve himself of the consequences of neglect in the performance of his agreement by employing an independent contractor.”
If the intervention of an independent contractor does not shield the landlord from liability for property damage sustained by his tenant, why should it shield him from liability for personal injuries sustained by a foreseeable business invitee of a tenant? The national authorities discussed above urge that the rule of the Peerless case be extended to include factual situations identical to that now before us. This Court is unable to justify a refusal to do so.
Once it is conceded that the risk of injury is foreseeable, as it must be in this case, the only remaining question is whether the attendant duty to exercise reasonable care to avoid the injury is delegable to an independent contractor. The answer to that question depends on policy considerations with respect to the defendant’s ability to prevent the injury and to absorb and distribute the loss in the event the injury occurs.
In Bleeda v Hickman-Williams & Company, 44 Mich App 29, 33; 205 NW2d 85 (1972), Judge (now Justice) Levin quoted approvingly from 2 Harper & James, Law of Torts, § 26.11, p 1400, that:
"[T]he chief warrant for vicarious liability must be found in the principle that an enterprise (and its beneficiaries) should pay for the losses caused by the risks which it creates (even without its fault).”
In the present case, defendants Fastenberg were responsible for setting in motion the course of events which resulted in plaintiff’s injuries; it is they who benefited economically, along with their tenants, from the operation of the shopping center; and it is they who can most easily bear and distribute the loss occasioned by plaintiff’s injury.
The considerations support the conclusion that defendants Fastenberg owed plaintiff, a foreseeable business invitee, a nondelegable duty to exercise reasonable care in making repairs, whether gratuitously or otherwise, on the leased premises. Although defendants would of course transfer the task of making the repairs to an independent contractor, they could not thereby shift their duty to plaintiff to make the repairs with reasonable care.
We therefore hold that defendants Fastenberg are vicariously liable for the negligence of their independent contractor in making repairs on the leased premises which resulted in injury to plaintiff, a business invitee.
Thus, the plaintiff’s pleadings and opening statement did state a cause of action and the trial court did not err in refusing to direct a verdict in defendants’ favor. We hasten to emphasize that we are not holding that the proofs adduced at trial establish defendants’ personal negligence; rather, we are simply saying that, notwithstanding the absence of such proof, they are nonetheless vicariously liable for the undisputed negligence of their independent contractor. Thus we express no opinion on the merits of any possible action by the Fastenbergs against Milbrand Maintenance for indemnification.
Defendants additionally argue that the trial court erred in not granting a directed verdict in their favor on the basis that plaintiff was contributorily negligent as a matter of law.
It is well established that this Court must view the evidence in the light most favorable to plaintiff when reviewing the trial court’s denial for a requested directed verdict on the basis of the plaintiff’s alleged contributory negligence for failure to make proper observations. See Birkhill v Todd, 20 Mich App 356; 174 NW2d 56 (1969); Pollock v Farmers Mutual Fire Insurance Co, 349 Mich 12; 84 NW2d 238 (1957). Moreover, it has been held that only in the rarest of cases should a jury not be allowed to decide the issue of contributory negligence, where plaintiff is charged with failing to make the proper observation of road conditions. Barron v Detroit, 348 Mich 213; 82 NW2d 463 (1957).
Albeit in the instant case, there is substantial evidence from which the jury could find the plaintiff was guilty of contributory negligence in the operation of his motorcycle, it is far from conclusively established that he failed to make proper observation. There was no evidence that plaintiff ever deviated his observation from the road ahead of him while he was operating his motorcycle. Additionally, plaintiffs testimony that the pile of debris blended in with its surroundings and was difficult to see because of the absence of artificial lighting in the area could have been reasonably relied upon by the jury in determining that he was not negligent in failing to see the pile of gravel and debris. Viewed in the light most favorable to plaintiff, this evidence could support the finding that he was not guilty of contributory negligence.
Moreover, it was not conclusively established that the two years’ experience which the plaintiff had in riding motorcycles, his lack of sleep, or his consumption of alcohol diminished his ability to operate the vehicle. Therefore, reasonable minds could differ as to whether plaintiff was incompetent to operate his motorcycle at the time of the accident.
The facts in the instant case are not so unusual or rare that the issue of contributory negligence should have been taken from the jury. Therefore, the trial court did not commit reversible error in failing to find plaintiff contributorily negligent as a matter of law.
Judgment affirmed.
All concurred. | [
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] |
Bronson, J.
This automobile negligence case arose out of an automobile collision which occurred on April 8, 1970, in the City of Sterling Heights. Defendant Ernst was employed by defendant City of Sterling Heights as a police officer and was driving a vehicle owned by defendant city at the time of the accident. On October 16, 1972, a jury verdict of no cause of action was returned against plaintiffs, Patricia and Joseph Placek. From this verdict, plaintiffs have appealed.
Although plaintiffs raise three allegations of error on appeal, we find one decisional:
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING PLAINTIFF PATRICIA PLACEK TO BE QUESTIONED ON HER FAILURE TO WEAR A SEAT BELT AND SHOULDER HARNESS.
During cross-examination of Mrs. Placek, defense counsel asked whether she was wearing a seat belt at the time of the accident. Following plaintiffs negative reply, her attorney objected and moved to have the answer stricken as immaterial. The trial judge overruled the objection. The court declared that everyone knew what the law was and, if there was any question concerning the matter, the jury could be properly instructed.
Defense counsel then asked Mrs. Placek whether she was wearing a shoulder harness at the time of the accident. Plaintiffs counsel again objected to the entire line of questioning as being immaterial. In allowing the question, the trial court stated:
"She may answer whether she had any on. I’ll tell the jury later that the law says you don’t have to wear a seat belt and you don’t have to wear a harness and it’s not negligence if you don’t, that’s the law in Michigan.”
The trial court never instructed the jury with respect to a person’s failure to wear a seat belt or shoulder harness as not being negligence under Michigan law.
In holding that a failure to wear a seat belt was neither evidence of contributory negligence nor a factor to be used in mitigating damages, I agreed with Judge Fitzgerald in Romankewiz v Black, 16 Mich App 119, 125-126; 167 NW2d 606 (1969), wherein we stated:
"To impose a standard on a plaintiff and submit to a jury the question of contributory negligence for non-use of seat belts (when perhaps only 2 or 3 of that jury use belts) stretches too far the facts of automobile travel today and, indeed, common-sense rules of statutory construction by implication.
"The proliferation of devices to promote safety, such as harnesses, sideview mirrors, and headrests, to name but 3, with the concomitant lack of requirement of their use, leads us to the conclusion that such non-use was not intended to be punished or prohibited.
"Accordingly, we hold that as a matter of law, Robert E. Morrow had no duty to wear a seat belt. The plaintiffs failure to fasten his seat belt was not such negli gence as to contribute to the cause of the accident. Unbuckled plaintiffs do not cause accidents.”
Thus, an individual’s failure to wear a seat belt has absolutely no bearing upon his right to recover from a negligent party. In light of Romankewiz, we now hold that in an automobile negligence case it is reversible error for a trial court to allow a plaintiff to be questioned concerning his or her failure to wear a seat belt with or without a shoulder harness. The introduction and allowance of such testimony can only lead the jury to believe that this was a factor for them to consider in determining whether plaintiff was contributorily negligent.
We have no way of knowing what consideration the jury attributed to plaintiff’s failure to wear her seat belt or shoulder harness. We cannot assume that the testimony elicited did not improperly influence them in their decision to render a verdict of no cause of action. Plaintiff is, therefore, entitled to a new trial at which such testimony shall not be allowed.
We note that the trial court’s offer to later instruct the jury on the rule of law in regard to seat belt usage does not make this error harmless when no such instruction was actually given.
Reversed and remanded for a new trial. Costs to appellant.
All concurred. | [
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McDonald, J.
The plaintiff asks for a writ of mandamus to compel the defendant to set aside a certain order entered on June 30, 1929, quashing service of summons upon one Elmer Kirchofer. On October 8, 1928, a truck driven by Kirchofer in the village of St. Clair Shores, Macomb county, Michigan, collided with an automobile owned by the plaintiff. Immediately after the collision, Kirchofer left the truck to report the accident. While he was gone, the chief of police tied a tag on the truck notifying him to appear in justice’s court on the 10th of October, 1928, to answer a charge of reckless driving. Kirchofer was a resident of Wayne county. He did not appear on the 10th, but his attorney arranged with the justice to have the hearing adjourned to the 26th. When he appeared on that day, the plaintiff, who in the meantime had instituted a suit for damages, caused a summons to be served on him. He moved to quash the service on the ground that he was not a resident of Ma-comb county and at the time was exempt from service of civil process by virtue of 3 Comp. Laws 1915, § 12446. The circuit judge adopted this view and entered an order quashing the service. The plaintiff here seeks a writ of mandamus to compel him to set aside this order.
Mr. Kirchofer claims exemption from service of the summons in this case by virtue of the statute, 3 Comp. Laws 1915, § 12446, the applicable portion of which provides that any party or witness who is in attendance on a “suit or proceeding” in a county in which he does not reside is exempt from the service of civil process issued out of any other suit commenced in that county. He was a resident of Wayne county. At the time of the service of the summons in question, he was attending a proceeding of some kind in a justice’s court in Macomb county. Was it such a proceeding-as entitles him to the privilege afforded by the statute? In Watson v. Judge of Superior Court of Detroit, 40 Mich. 729, Mr. Justice Cooley said:
“There is no doubt whatever that the privilege exists in the case of all proceedings in their nature judicial, whether taking place in court or not.”
And in 21 R. C. L. p. 1309, the scope of the privilege is stated as follows:
“Originally the exemption from process by privilege could be invoked only for attendance on courts, but it is now extended so as to embrace every proceeding of a judicial nature, taken in or emanating from a duly constituted judicial tribunal, which directly relates to the trial of the issues involved.”
In this case the question is, Was Mr. Kirchofer in attendance on a judicial proceeding before the jus tice of the peace in Macomb county when he was served with the summons ?
On the day of the collision, he received the following notice from the chief of police of the village of St. Clair Shores:
“No. 2988 Dated October 8, 1928.
“To Elmer Kirehofer, defendant.
Address............................
“You are hereby notified that I shall forthwith file a sworn complaint against you in court for the village of St. Clair Shores, because of your violation, this date, of the laws indicated below:
“X Reckless driving.
“Place where violation occurred: Violet Boulevard and Harper avenue.
“I shall be present at the session of the justice court at town hall, Harper and Town Hall Road, to be held on October 10, 1928, at 7:30 p. m. to prosecute said charge. Unless you are present at said session of said court to answer said charge a warrant will be asked for your arrest.
“Nelson, patrolman.
‘ ‘ B adge number ..........”
It is true, as pointed out by the plaintiff, that this notice is not a process authorized by any law of the State, and Kirehofer was under no legal obligation, to respond to it. But touching the matter in issue, it was not necessary to his privilege that he should have been brought before the justice by subpoena or criminal process. It was sufficient if there was a judicial proceeding before the justice and he was in attendance either as a witness or as a party. Whether his presence was voluntary or compulsory does not matter. So we regard the notice as important only in showing the nature of the proceeding before the justice. It is plain that the purpose of the proceeding was to inquire into the facts rela tive to a charge of reckless driving and to determine if a warrant should issue. For such a proceeding, no sworn complaint in writing was necessary. The court had authority to determine probable cause from the oral testimony of any witness who came before him. Mr. Kirchofer was invited to be present at such hearing on threat of arrest if he did not do so. As he had authority to do, the justice assumed to act and set October 26th as the date of the hearing. Kirchofer came with his attorney. That he voluntarily came into the county and submitted himself to the jurisdiction of the court did not destroy his privilege to be exempt from the service of civil process which the statute gives to witnesses and parties. The hearing which he came to attend was a judicial proceeding within the meaning of the statute. For reasons of public policy and the due administration of justice, the courts have uniformly given such statutes a liberal interpretation in favor of the privilege. Thus, it is well established by judicial authority that parties and witnesses who are in good faith in attendance on a suit or judicial proceeding in a county in which they do not reside are privileged from the service of civil process from any other court in that county during such attendance and for a reasonable time while going and coming. This is the rule whether their attendance is voluntary or compulsory. The authorities on this question are collected in the note to Mullen v. Sanborn, 79 Md. 364 (29 Atl. 522, 47 Am. St. Rep. 421), in 25 L. R. A. 721.
The writ of mandamus is denied, with costs against the plaintiff.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
Plaintiff here' seeks by cross-bill to enforce a lien upon an apartment building erected by defendants Young and Taan for the price of 49 gas ranges which were installed therein. These ranges were delivered on the premises by the plaintiff, and were installed by employees of the defendants by placing them against the walls in the several apartments and connecting them with a gas fixture which had been placed therein. Plaintiff appeals from the decree entered dismissing its cross-bill.
3 Comp. Laws 1915, § 14796 (mechanics’ lien law), provides that—
“Every person who shall, in pursuance ,of any contract, * * * furnish any * * * materials in or for building, altering, improving, repairing, erecting, ornamenting or putting in any house, building * * * or structure, * * * shall have a lien therefor. ’ ’
The test to be applied is whether these gas ranges were fixtures and became annexed to the real estate when installed. What are fixtures and become part of the realty was considered at length in Morris v. Alexander, 208 Mich. 387. This court there approved of the three general tests which may be applied as stated in 11 R. C. L. p. 1059. These are, “first, annexation to the realty, either actual or constructive; second, adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and third, intention to make the article a permanent accession to the freehold.” In applying these tests, consideration must be given to the nature of the structure and the use to which it was to be put when completed. The building was erected for use as an apartment house, a family to occupy each - apartment. As is usual in such buildings, the several apartments become homes for the occupants, with the usual conveniences for housekeeping installed therein. Among these are the appliances for heating, lighting, and cooking. Their use for this purpose necessitated the installation of stoves or ranges, and desirable tenants could not likely be secured without them. G-as ranges were decided on as the practical way of supplying this need, and a uniform design was adopted for each apartment. While there is direct proof that one of the owners stated that it was his intent that these ranges “were to become part of the building,” we also think such intent, in view of the use to be made of the several apartments, might well be inferred. In our opinion, these ranges became fixtures, annexed to the realty, and the plaintiff was entitled to a lien thereon for the price thereof.
The conclusion reached finds support in Lyle v. Rosenberg, 192 Ill. App. 378; Porch v. Agnew Co., 70 N. J. Eq. 328 (61 Atl. 721); Union Stove Works v. Klingman, 20 App. Div. (N. Y.) 449 (46 N. Y. Supp. 721), aff. without opinion in 164 N. Y. 589 (58 N. E. 1093); Turner v. Wentworth, 119 Mass. 459; Hanson v. Vose, 144 Minn. 264 (175 N. W. 113, 7 A. L. R. 1573); and in our recent case of Vander Horst v. Apartments Corp., 239 Mich. 593.
The failure to serve process on the owners was clearly waived by their voluntary appearance and answer to the cross-bill, and need not be further considered.
The decree entered is reversed and set aside, and one may be entered here granting the Peninsular Stove Company the relief prayed for in its cross-bill, with costs of both courts.
■ North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Potter, J.
Plaintiff filed a bill to quiet title to a strip of land approximately 14 feet in width along the back end of lots facing Maple street in Hunter’s Plat of Birmingham, Michigan. October 5, 1895, William McClelland acquired all of the land in volved. January 10, 1900, McClelland and wife conveyed to Mathew McBride one parcel of land:
—“excepting and reserving a strip of land across the south end of the said lot, fourteen feet wide running east and west for an alley, a right of way from the south end of said above devised premises to Saginaw street is granted by first parties to second party. ’ ’
January 22, 1900, McClelland and wife conveyed another parcel of land to Walter Nichols;
—“excepting and reserving from the above described premises a strip of land on the south side thereof, fourteen (14) feet wide, as an alley or right of way for second parties from the south side of the above devised premises to Saginaw street in the said village.”
October 26, 1904, McClelland and wife conveyed another parcel of land to Seeley Peck and wife;
—“reserving a strip of land 14 feet wide off the south end of above described land for alley.”
The exceptions and reservation above form a continuous strip of land. By mesne conveyances all of the land out of which the exceptions and reservation were made has been merged in plaintiff, who contends the language created a mere easement, and, when the land to which the easement was appurtenant was acquired, the easement merged in the ownership of the land. Defendants contend the 14-foot strip was owned by William McClelland; that he never parted with his title thereto, and hence title remained in him to his death, at which time it descended to his heirs, and is now vested in them. The words “reserving and excepting” are used with carelessness. Hall v. City of Ionia, 38 Mich. 493. They are not to defeat the intention of the parties. Erickson v. Michigan Land & Iron Co., 50 Mich. 604. Whether a particular provision is an exception or a reservation depends upon the nature and effect of the provision itself. Martin v. Cook, 102 Mich. 267.
“If the grantor, no matter what the words may be, retains in himself title to a part of the land described in the deed, it is an exception. In such case words of inheritance are not necessary to retain in him the title for himself and his heirs. This is reasonable, because the deed did not purport to convey the title to the part excepted, nor to devest him of it. ‘Whatever is excluded from the grant by exception remains in the grantor as of his former title or right.’ ” Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264.
By the deeds here involved, there is an exception of the 14-foot strip. It is not conveyed by the grantor to the grantee in any deed. A right of way over this 14-foot strip was given by the grantor to the grantee, but the fee was retained by the grantor.
“A grantor who states in his deed that he excepts a certain portion of the land because he wants it for a certain purpose cannot be held to have conveyed that which he has expressly excluded because he afterwards devotes it to a different purpose.” Mayor, etc., of New York v. Railroad Co., 69 Hun, 324 (23 N. Y. Supp. 562); Delano v. Luedinghaus, 70 Wash. 573 (127 Pac. 197).
If this 14-foot strip was excepted from the deeds of McClelland, the title thereto remained in him, and,, upon his death, passed to his heirs, subject to the easement.
Decree reversed, with costs, and decree entered for defendants.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
The question here presented is thus stated by counsel for the appellant:
“Is the track and right of way of the defendant company situated outside the corporate limits of a city or village liable to assessment for benefits for construction of a public drain, or is such track and right of way exempt from such taxation?”
Prior to 1909 the drain ’ law provided that the commissioner should include in his assessment for benefits all property through which a proposed drain should run. 2 Comp. Laws 1897, § 4344. This law was amended by Act No. 320, Pub. Acts 1909. Section 1 of chapter 5 provided for apportionment of the per cent, of benefit “to accrue to any piece or parcel of land, or right of way of any railway or railroad company, telephone or telegraph company, by reason of the construction of such drain,” etc. The law was again amended by Act No. 185, Pub. Acts 1911. Section 1, after providing for the assessment of a stated per cent, thereof upon the entire township, contained a similar provision to that in Act No. 320, except that all reference to the land or right of way of railroad, telephone, or telegraph companies was omitted therefrom. This section was again amended by Act No. 202, Pub. Acts 1915, in a manner not material to the issue here presented.
The general tax law (1 Comp. Laws 1915, § 4001, subd. 8) exempts the track, right of way, etc., of railway companies paying a specific tax from “taxation for any purpose, except that the same shall be subject to special assessments for local improvements in cities and villages.-” The railroad property on which the drain tax here sought to be recovered was assessed is in the township' of Lansing, in Ingham county, and without the limits of any city or village. ■
Counsel for appellant contend that, as 2 Comp. Laws 1897, § 4344, was silent as to the right to im pose a drain tax on railroad property, and as such property was included in the act of 1909, its omission from the act of 1911, when read in connection with the above provision from the general tax law, clearly exempts such property from the payment of the tax in question.
It is axiomatic that all property, unless specially exempted, shall bear its fair share • of taxation. Under the general tax law a specific tax is collected from railroads. This takes the place of the general taxes spread upon other property to pay governmental expenses. Special assessments for local improvements in cities and villages are not general taxes within the meaning of that term as used in our tax laws, and no special provision therefor in a statute is necessary to support the levy of such a tax. Blake v. Metropolitan Chain Stores, ante, p. 73, and cases cited. It is conceded in the agreed statement of facts that the defendant’s right of way on which this drain tax was spread, “if not exempt is subject to the aforesaid assessment in the sum of $359, and is benefited in that amount by this improvement. ’ ’ To relieve the defendant therefrom is to exempt its property from payment of its fair share, of the cost of this improvement and thereby to increase, the cost to other property benefited thereby. We cannot conceive why the legislative act of 1909 contained the reference to railroad property. It. in no way increased the liability for such an assessment theretofore resting on such property. We think it may fairly he inferred that when this section was again considered by the legislature in 1911 it was apparent , that this language was superfluous, and that its omission may be thus accounted for. Exemptions from taxation are not favored. As was said by the trial court:
“While, of course, it lies within the power of the legislature to create an exemption from such special assessment, any such grant must he thoroughly and definitely expressed. The general rule is that any exemption from any form of taxation will-he strictly construed. In 37 Cyc. p. 892, it is said:
“ ‘Such a privilege or immunity cannot be made out ‘by inference or implication, but must be conferred in terms too clear and plain to be mistaken, and in fact admitting of no reasonable doubt, and where it exists it should be carefully scrutinized and not permitted to extend either in scope or duration beyond what the terms of the concession clearly require. ’ ”
To relieve defendant’s property from this tax we must imply an intent on the part of the legislature to exempt it by the omission in the act of 1911 of the provision in that of 1909. Its property was liable for such a tax prior to the act of 1909, it was liable under that act, and is, in our opinion, still liable under the act of 1911.
The judgment is affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Potter, J.
Defendant insured plaintiff’s barber shop against loss by fire. The shop burned, defendant was notified of the loss, and its adjuster visited the premises and interviewed plaintiff. No proof of loss was filed in accordance with the terms of the policy. It is claimed defendant’s negotiations with plaintiff waived filing such proof. Plaintiff sued on the pplicy to recover the amount of his loss. The case was tried without a jury, and judgment rendered for defendant. Plaintiff brings error. If defendant did not waive the filing of proof of loss by plaintiff there can be no recovery. Defendant claimed there was no waiver and there was ample evidence to support its claim. The trial court found for defendant on this disputed but decisive question of fact. We ought not, under the circumstances, to disturb his finding. Inasmuch as this finding is controlling, the other assignments of error become unimportant.
Judgment affirmed, with costs to defendant.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
A writ of summons, issued out of tbe circuit court for tbe county of Oakland by William J. Law, assignee of Edward B. O’Neill, plaintiff, on January 26,1928, was served upon tbe vice presi dent of the plaintiff company at the city of Grand Rapids, in the county of Kent, the location of its business office. The default of the plaintiff herein was duly entered and judgment rendered on May 1, 1928. An execution was issued thereon on September 15, 1928. Plaintiff herein, on being informed of such fact, appearing specially for the purpose, entered a motion to set aside the execution and vacate the judgment, for the reason that the court was without jurisdiction to render it. Plaintiff here seeks review by mandamus of' defendant’s order denying such motion.
Section 12340, 3 Comp. Laws 1915, reads as follows:
“Suits may be commenced against * * * domestic insurance companies * * having for their object insurance against * * * accident * * * or any form of risk whatever; * * * in the circuit court of any county in this State, in which the plaintiff resides, and in which such company is authorized to issue policies, or take risks.”
This section is but á re-enactment in substance of section 4360, 1 How. Stat., and section 10444, 3 Comp. Laws 1897. In both of these compilations it was followed by a section reading as follows:
‘ ‘ Such suits may be commenced by declaration or by writ, which may be served upon any agent of such company or association, residing or found within the county by the sheriff of the county where the suit is brought, or by the sheriff of any county where an agent may be found, or by the sheriff of the county where the principal office of such company or association is located.”
Both sections were re-enacted without material change by Act No. 51, Pub. Acts 1901. The right to make service thereunder was sustained by this court in Miner v. Benefit Ass’n, 63 Mich. 338, and in Monger v. New Era Ass’n, 145 Mich. 683.
In the judicature act, from which section 12340, 3 Comp. Laws 1915, is taken, the second section, providing for the manner of service, is omitted. Section 12436, 3 Comp. Laws 1915 (said to be a new section), provides:
“In all cases of domestic or foreign insurance companies, fraternal, co-operative and mutual beneficiary societies, orders or associations, and in all other cases where it is required by law that any company, society, order or association, shall appoint in writing the commissioner of insurance, the secretary of State, or any other officer of this State, as their agent or attorney, upon whom all legal process in any action or proceeding may be served, if such appointment shall have been made, service of process shall be made upon such officer. In cases against fire and marine insurance companies service of process may be made in the manner herein provided or in any other manner permitted by law.”
In a note to the compilation of 1915 it is said that this section “supersedes and merges” section 10445 of the compilation of 1897, above quoted.
We have looked in vain to find any statute requiring a corporation, such as plaintiff apparently is, to appoint an agent upon whom process may be served. The insurance code (Act No. 256, Pub. Acts 1917, Comp. Laws Supp. 1922, § 9100 [1] et seq.) requires such an appointment to be made by foreign companies desiring to do business in this State (part 2, chap. 2, § 4, Comp. Laws Supp. 1922, § 9100 [69]), and by fraternal beneficiary societies (part 3, chap. 4, § 17, Comp. Laws Supp. 1922, § 9100 [205]). The pmission to include domestic corporations such as plaintiff renders this section inapplicable.
Counsel for the defendant urge that the court is given jurisdiction over the plaintiff by section 12340, 3 Comp. Laws 1915, and, in the absence of statutory provision, it has, by necessary implication, the right to cause its process to be served on an officer of the corporation in another county, as was done. The manner of securing jurisdiction over the person of a defendant by the service of process is statutory. The merits of this action could be as well disposed of in the county of Kent, where defendant maintains its office, as in the county of Oakland. We must assume that, by omitting the provision for service of process issued under section 12340, 3 Comp. Laws 1915, the legislature intended to render it operative only as to companies required to appoint an agent, or to cases in which proper service could be had in the county in which the process was issued. The judgment was void for want of jurisdiction in the court to render it.
It is urged that mandamus is not the proper remedy. The execution issued must be set aside as well as the judgment vacated. No question of discretion is involved. Mandamus may be resorted to for such a purpose. Palazzolo v. Judge of Superior Court, 234 Mich. 547.
If necessary, the writ will issue, with costs against the plaintiff in the action.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
Wiest, J.
The bill herein was filed to foreclose two mortgages, securing the payment of two notes. The mortgages and notes were executed by defendant Blanche M. Cowles to defendant Theodore Beeker. The notes, after maturity, were indorsed and the mortgages assigned, by the mortgagee, and defendant Elizabeth H. Beeker, his wife, to plaintiff. The bill was taken as confessed by Mr. and Mrs. Beeker. At the hearing it developed that the mortgagor had no title subject to foreclosure and the court entered a personal decree on the notes against the mortgagor and the mortgagee and his wife. No appeal was taken. After time for taking an appeal had expired the mortgagee and his wife petitioned the court to grant a rehearing. The petition was denied as to Mr. Beeker and the decree amended to the discharge of his wife. From' that denial and the amended decree, Mr. Beeker took an appeal. We denied the motion of plaintiff to dismiss the appeal. ■
It now appears, from the record before us, that the motion should have been granted. The first decree against Mr. Beeker stands unmodified, and his appeal brings no different decree before us for review, and, as there was no appeal from that decree^ we have nothing to determine. The motion for á rehearing, denial thereof as to Mr. Beeker, and modification of the unappealed decree as to Mrs. Beeker did not operate to extend the time of appeal from the first decree, or open the same for review. Potaschnik v. Kaimola, 216 Mich. 406.
Finding nothing to review, we now dismiss the appeal, with costs against Mr. Beeker.
North, C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
On April 10,1926, the present plaintiff brought suit by summons in the Wayne circuit against Detroit Speedway Association, a Michigan corporation, and John H. Atkins. The officer’s return is as follows:
“State of Michigan,)
County of Wayne )ss'
“I hereby certify and return that, on this 17th day of April, A. D. 1926, at Detroit in said county of Wayne, I served the within summons upon John H. Atkins for the Detroit Speedway Association, and John H. Atkins, personally, the defendants named in said summons, by then and there showing the said above named defendants the within summons, with the seal of the court impressed thereon, and delivering to him, said defendant, a true copy of said summons.
“Geo. A. Walters, “Sheriff of said County.
“Eugene W. Sage, “Deputy Sheriff.”
May 7th defendants’ default was entered and on May 28th, judgment for plaintiffs for $1,041.60 was entered. Execution was issued and returned unsatisfied. January 20, 1927, writ of capias was issued, and, on February 23d following, defendant John-H. Atkins was released. The following year motion to set aside the default and judgment was filed, and on November 3, 1928, this motion was granted. This mandamus proceeding tests the validity of the last-named order.
Plaintiffs insist that in a suit in chancery upon a bill filed by John H. Atkins, the validity of.the judgment and proceedings leading up to it were sustained, and that such suit is res adjudicata. The defendant circuit judge returns that he did not hear the case and is unfamiliar with it or the issues involved in it. A decree dismissing a bill filed by Mr. Atkins against the present plaintiffs appears in the record, but the bill does not appear in the record, and we are, therefore, left to conjecture as to its contents and purpose. Upon the record as made we may not decide the question of res adjudicata. Defendant’s brief claims that present plaintiffs have not filed their certificate of partnership with the county clerk, hence, may not maintain this action. As there is nothing in the record to either confirm or disaffirm this claim, we will likewise pass this question by. Confining ourselves, as we should, to those questions which are raised by counsel and are presented by the record, we are limited to these questions: (1) Was there proper service of the summons? (2) Did the declaration state a cause of action, and if not, could the question be here raised?
Where there is personal service, the motion to set aside the default must be made within six months. Circuit Court Rule No. 32, § 4; Cemetery Ass’n v. Wayne Circuit Judge, 238 Mich. 119; Hakes v. Kent Circuit Judge, 213 Mich. 278, and authorities there cited at page 285. The default must be regularly filed or entered. The rule so provides, and this court has so held on numerous occasions.
(1) The return of the officer does not show that Mr. Atkins was an officer, director, trustee, or agent of the defendant corporation, nor was any such showing made in the case. The service, therefore, did not bring the corporation defendant into court. 3 Comp. Laws 1915, § 12432; Kirby Carpenter Co. v. Trombley, 101 Mich. 447; Hoben v. Citizens’ Tel. Co., 176 Mich. 596; but it is obvious that the service was good as to Atkins, the individual defendant. He was personally served and was before the court.
(2) "We need not determine whether the default of, and judgment against, Atkins are a nullity because the declaration would not be good as against a general demurrer (see 3 Comp. Laws 1915, §§ 12482, 12480), as we are satisfied the declaration states, somewhat imperfectly, a cause of action. The count purporting to allege fraud is not good, but the other count alleges that plaintiffs paid defendants $800 under an agreement with them that they would do certain things therein alleged, and that they have not done the agreed things to plaintiffs’ damage. We think a cause of action is stated, although somewhat imperfectly.
The writ will issue, if necessary, directing the setting aside of the order vacating the default of John H. Atkins and the judgment entered against him thereon.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., -concurred. | [
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Clark, J.
Walter Neureitber owned lease and stock and equipment of a garage business wbicb he sold on conditional sale agreement to defendant Thomas Hansen; $300 was paid down, and the remainder, $2,500, was to be paid in installments of $75 per month and interest, according to a series of promissory notes made by Hansen to Daisy Neureither, wife of Walter. The notes were made payable to the wife because the husband was indebted to her. Notes were payable at Dime Savings Bank. Hansen paid the first of the series of notes, and then sold what he had bought to one Lucier, who agreed with Hansen to assume, and to pay remaining notes at the bank. Lucier paid a number of the notes at the bank, and defaulted as to those still unpaid. Plaintiff sued Hansen on the notes. The defense is novation. Defendant had verdict and judgment. Plaintiff brings error.
There is discussion in the briefs of Mr. Neureither’s selling the' garage as agent of his wife, the plaintiff. Record is otherwise. He alone is seller in the agreement. Hansen bought from him alone. Uncontradicted record is that notes were made payable to plaintiff because she had advanced money to her husband. But the decisive point is that the record fails wholly to establish two of the four elements necessary to novation, namely, the consent of all parties to the substitution based upon sufficient consideration and the extinction of the old obligation and the creation of a valid new one. The only evidence to establish these elements is that the substitute, Lucier, paid some of the notes. This is not sufficient.
“It is true that it has been held that it is not essential that the assent to, and the acceptance of, the terms of novation be shown by express words to that' effect, but that the same may be implied from the facts and circumstances attending the transaction, and the conduct of the parties thereafter. Such consent, however, is not to be implied merely from the performance of the contract or the payment of money by the substitute, for that might well consist with the continued liability of the original party. Illinois Car & Equipment Co. v. Wagon Co.. 112 Fed. 737, 50 C. C. A. 504.” Harrington-Wiard Co. v. Blomstrom Co., 166 Mich. 276.
Verdict for plaintiff ought to have been directed as requested. Reversed, with costs to plaintiff. New trial granted.
' North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Defendant was arrested, charged with manufacturing and having in his possession a quantity of moonshine whisky. Before the justice of the peace, before whom he was brought after arrest, he moved to suppress the evidence gained by what he claims to have been an unlawful search and seizure. This motion was overruled, and defendant bound over for trial and was later convicted in the circuit court. Upon the trial in the circuit he renewed his motion to suppress made before the justice, and seasonably objected to the introduction of any evidence covered by the motion. His motion and objections were overruled, and defendant brings error. The question is whether, under the facts, this motion should have been granted and the evidence suppressed at the trial.
The sheriff of Mecosta county, prior to defendant’s arrest, had received reports that defendant was operating a still on the premises in question; that he was engaged in the liquor business. The premises had been watched prior to that time. On the morning in question, the sheriff, with others, went to the premises without-a warrant for defendant’s arrest and without a search warrant. The windows of the house were covered with papers, blankets, and quilts, so that no one could see in. The smell of mash pervaded thfe premises as it had the day before. Those present could hear the pouring of liquid from one container into another. The defendant opened the door. The sheriff told him that he was under arrest. The defendant stepped back' and shut the door. The officer and those present then heard someone breaking jugs and containers. They then opened the door into the woodshed and pushed open the door into the house. The defendant said, “All right, boys, come in.” They found 11 barrels of mash, a still, two oil stoves, and a quantity of moonshine whisky. Defendant’s family and defendant lived in Big Rapids. The place raided was known as the- Mary White place. Defendant had a contract for its purchase, but her furniture was still on the premises.
The sheriff says that from the facts shown by the record he believed a felony was being committed in his presence prior to defendant’s arrest. We think the facts justify this conclusion (People v. Woodward, 220 Mich. 511), and that under the circumstances the search was not illegal.
It follows that defendant’s conviction should be affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Fead, J.
October 23, 1926, plaintiffs and Carl Reichle entered into a construction contract for the erection of an apartment house, plaintiffs deeding the lot to Reichle, taking back a land contract, with credit of down payment of $20,000 represented by the lot, and balance of $86,500, the cost of the building, to be paid at the rate of $700 or more per month. Plaintiffs paid $3,605 on principal and interest from December, 1926, to May, 1927. They made no payments thereafter. Reichle commenced summary proceedings before a circuit court commissioner and had judgment of restitution on January 11, 1928, with amount found due $5,627.48. Writ of restitution was issued. On March 14th, plaintiffs filed bill to set aside the summary proceedings on the ground of want of service of summons, and also asked damages for faulty construction of the building. They obtained a preliminary injunction restraining Reichle from taking possession. On motion to dissolve the injunction and dismiss the bill, which was denied, the court appointed Detroit Trust Company as receiver, with instructions that plaintiff Stanley act as janitor and that plaintiffs have a room in the building, the receiver having authority to discharge and eject them without the necessity of making application therefor if the services were unsatisfactory. The suit came on for hearing.and the court found that service had been regularly made in the summary proceedings, held the judgment therein was res adjudicada, and refused to hear the question of damages. A final decree was entered on November 2d, dissolving the preliminary injunction, dismissing the bill, terminating the receivership, ordering that Reichle have possession of the premises, and directing issuance of writ to put him in possession. Plaintiffs gave notice of appeal and petitioned for leave to file a bond to stay proceedings, asking that the receivership be continued. On November 17th the court entered an order denying plaintiffs possession, ordering that Reichle and Ms wife have exclusive possession during the appeal, but enjoining them from disposing of the premises and requiring them to keep an accurate account of all receipts and disbursements and setting the appeal bond at $150 to cover costs. On November 26th a further order was eqtered denying plaintiffs’ petition that the receiver continúe in possession during appeal and that the court fix the amount of an appeal bond to stay proceedings. On petition for writ of mandamus this court issued an order to respondent to show cause why he should not set aside the order of November 26th, denying plaintiffs’ motion, (a) to permit the receiver to remain in possession pending appeal, and (b) to fix the bond and stay proceedings pending appeal.
The first part of the order presents for review the discretion of the chancellor in refusing to continue the receivership pending appeal. Upon the order to show cause the circuit judge returned that the plaintiffs were not in possession of the premises when they commenced their suit; that after a full hearing the summary proceedings and judgment therein were held valid; and that Reichle’s equity in the premises is sufficient to secure any judgment for faulty construction which the plaintiffs might obtain in case the summary proceedings be finally held invalid. The plaintiffs had long been in default in their contract before the proceedings to oust them were begun. The chancellor heard the testimony in the summary proceedings and his refusal to continue the receivership during appeal is indicative that he found little merit in plaintiffs’ claim of invalidity of the judgment of restitution. We cannot say the court abused its discretion. As bearing upon the situation at the present time, it appears that, although plaintiffs have had ample time to present their appeal of the main case at the pending term of this court, they have not done so. The writ is denied as to this ground.
Under the statute, 3 Comp. Laws 1915, § 13756, it is the duty of the court to fix the penalty of a stay bond on review. Luther v. Kent Circuit Judge, 151 Mich. 71. The effect of the bond upon the pre liminary injunction or in staying execution of the writ of restitution, Hulan v. Wayne Circuit Judge, 159 Mich. 605; Brevoort v. City of Detroit, 24 Mich. 322; Wilkinson v. Dunkley-Williams Co., 141 Mich. 409 (7 Ann. Cas. 40), is not in issue. Plaintiffs were entitled to give a bond to stay execution of the decree of the chancery court, whatever may have been its effect upon other proceedings.
The writ will issue to require respondent to set the penalty of the appeal bond, but without costs.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
North, C. J.
The defendants in this case were fruit merchants at Iron River, Michigan. They desired to purchase a carload of grapes from the plaintiff and they both wrote and wired to him relative thereto. Thereupon the plaintiff replied by wire that he had a carload of grapes on the tracks at Iron River, a part being muscat grapes, which he offered for $45 per ton, and the remainder zinfandell grapes which he offered at a price of $85 per ton, all f. o. b. California. This wire authorized inspection of the car by the defendants, gave them the price of $994.40, and requested that, if the shipment was found satisfactory, the purchase price be wired to the plaintiff immediately. The defendants inspected the car in question September 29, 1924, and wired the plaintiff as follows:
“Will accept car check will be sent by mail.”
Following the inspection and acceptance of the shipment, the defendants proceeded to unload the. ear, which they claim required several days. October 6th. defendants wrote to plaintiff complaining about the condition of the shipment and also -that instead of being in part muscats there were no grapes of this variety but the shipment was made ,up of zinfandell and malaga grapes. However, there is testimony that “the malaga grape has more value in the market than the muscat. ’ ’ The defendants declined to make payment and asserted that the grapes were not worth- more than the freight charge of $641.13, which they had paid: The plaintiff brought suit for the purchase price. There was trial by jury, and a verdict rendered in favor of the plaintiff. Defendants have brought the case to this court by writ of error.
The errors assigned are as follows:
“1. That the trial court erred in excluding from the evidence testimony tending to show that the carload of grapes, which was rejected by the original purchaser and is the subject-matter of this suit, and which was subsequently resold to the defendants, was rejected because the grapes were not of the kind and quality as required and contracted for, but were of a different kind and of an inferior quality and in the process of decay.
“2. That, the trial court erred in excluding testimony in part showing the extent to which inspection of the car was practical and possible as a business venture and proposition.
“3. That the trial court erred in ruling on the admissibility of evidence, and discussed the same in such a manner as to impress the jury trying said cause that all the grapes were inspected as far as defendants saw fit to inspect them, which was not the fact nor the testimony in this cause.
“4. That the trial court erred in instructing the jury as follows: ‘The defendant had the opportunity to make such inspection as he saw fit, and he did so. He didn’t go further, and know more definitely what was in the car; that was his own fault, and not the fault of the plaintiff. Having gone as far as he saw fit to go with his inspection, he accepted the car’ omitting to direct the attention of the jury to the fact that before inspection could be made of the car, as shown by the testimony, the defendants had to pay the freight, amounting to $641.13, and were therefore obliged to take the car to salvage their own losses on account of the freight paid, as far as the contents of the car, when accepted by the defendants, would permit.”
The first three assignments of error above quoted might be disposed of summarily by simply noting that they do not conform to the Supreme Court Eule No. 11, which provides:
“Every assignment of error on such writ (of error) shall be special, and no judgment or proceedings shall be reversed or annulled for any other defect or error than such as shall be thus specially assigned.”
See O’Neil v. Newman, 132 Mich. 489, and cases there cited.
But notwithstanding the insufficiency of the assignments, we have gone over the record carefully and are satisfied that the rulings of which complaint is made were not erroneous. An unlimited opportunity for inspection was afforded to the defendants by the plaintiff. If they saw fit to accept the shipment without making as thorough an inspection as should have been made they cannot now be heard to complain. The assignment of error based on the charge to the jury is without merit. The rule of caveat emptor applies. Baker v. Kamantowsky, 188 Mich. 569; E. P. Stacy & Sons v. Moher, 200 Mich. 81. The circuit judge held that because of the misstatement in the plaintiff’s telegram as to the kind of grapes shipped in the car, there was not a meeting of minds of the parties to the transaction; but, that since the shipment was accepted by the defendants after inspection they were bound to pay therefor the fair market value at the time and place of such acceptance. This holding was not prejudicial to defendants’ rights. The issue was properly submitted to the jury. As stated above, the plaintiff had a verdict, and we find no reason for disturbing the judgment entered thereon. The case is affirmed, with costs to the appellee.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
.Wiest, J.
This is' a suit in assumpsit, with declaration upon the common counts, brought by plaintiffs to recover from defendants compensation for repairing a house damaged by fire. In the circuit the case was heard by the court, and judgment entered for defendants.-
The legal question, presented by a most unsatisfactory record, may be stated as follows: In case of damage, by fire, to a residence, being purchased under land contract and occupied as a homestead by the purchasers, may [if] parties called by an adjuster, representing' an insurance company thought to be liable for the loss, and not shown to be otherwise, and who gave the adjuster an estimate of their charges for making the repairs, and were told by the adjuster “to go out there,” and were told by the purchasers that “it was all right, to go ahead and replace it to the amount paid by the. insurance company,” and it was the intention of the purchasers that the insurance company would pay for the repairs and the intention of the parties making the repairs to look to the insurance company for their pay, and, after the repairs were nearly completed, the adjuster stated to the repair men that the insurance did not cover the loss, are the purchasers under legal obligation to pay for the repairs so made?
Plaintiffs claim the right to recover under an implied contract.
The defendants are husband and wife, and in no event can-the wife be held personally liable. Farmer v. Best, 246 Mich. 434.
Plaintiffs cannot recover on the theory of a contract implied in fact, for the work was not done and the materials not furnished under circumstances authorizing plaintiffs to entertain an expectation of pay from defendants. The plaintiffs expected the insurance company’to make payment out of the insurance, and only after denial of liability by the adjuster did they seek to fasten liability upon defendants under an implied contract.
Is defendant Joseph Magryta liable upon a quasi or constructive contract?
There are two kinds of implied contracts: one implied in fact, and the other implied in law. The first does not exist unless the minds of the parties meet, by reason of words or conduct. The second is quasi or constructive, and does not require a meeting of minds, but is imposed by fiction of law, to enable justice to be accomplished, even in case no contract was intended.
In order to afford the remedy demanded by exact justice and adjust such remedy to a cause of action, the law sometimes indulges in the fiction of a quasi or constructive contract, with an implied obligation to pay for benefits received. The courts, however, employ the fiction with caution, and will never permit it in cases where contracts, implied in fact, must be established, or substitute one promisor or debtor for another.
Liability of the insurance company for the loss was not made an issue in this case, and, for aught appearing here, it may be liable. The record does not disclose the name, even, of the insurance company, or the amount of the insurance, or to whom the policy, if any, was issued. The statement by the adjuster to plaintiffs, after the repairs were practically completed, that defendants herein were not protected by insurance, did not establish such fact or authorize plaintiffs to look to defendants instead of the insurance company for their pay. It seems to have been the practice, in cases of damage by fire, for the adjuster to call upon plaintiffs to make an estimate of the cost of repairs and to settle with an insured, either by paying such estimated amount or having the repairs made by plaintiffs and arrange to pay them out of the insurance.
Under the Michigan standard form of fire insurance policy, an insurance company has the option to repair the property damaged. Comp. Laws Supp., 1922, §9100 (243). The adjuster exercised the option, and, to satisfy the loss, assumed for the insurance company the obligation to repair the damage, and sent plaintiffs to do the work. The defendants could not, while the insurance company was exercising the option right to repair, do otherwise than submit. Out of such submission no implied contract to pay plaintiffs could arise.
There is in the testimony this significant admission by the plaintiff Cecil M. Cascaden:
“Q. Were you present at the time Mr. Williams spoke to Mr. Magryta and says: ‘Don’t you worry. The insurance company will take care of you. We have our contractor, Mr. Cascaden. He will do the work.’ Do you remember that?
“A. He told them — yes, Mr. Williams told them that the insurance company would pay it. ’ ’
Under the circumstances here disclosed, there was no implied contract in fact, and the court may not find one, quasi or constructive.
The judgment is affirmed, but without costs, no brief having been furnished in behalf of defendants.
North, C. J., and Fead, Fellows, Clark, McDonald, Potter,, and Sharpe, J'J., concurred. | [
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Sharpe, J.
.On February 2, 1900, Reuben S. Spangler and Hanna M. Spangler, his wife, conveyed the land in question in this suit to Reuben R. Clark and Barbary M. Clark, his wife, by warranty deed. The words “andBarbary M. Clark, his wife” were interlined therein. The trial court found the fact to be that such interlineation was made prior to the execution of the deed by the grantors. It was recorded on March 18, 1901, but the interlineation was omitted therefrom. On discovery of this fact by plaintiff, it was re-recorded on October 4, 1927.
. Reuben R. Clark departed this life on May 19, 1904. On December 22, 1904, Barbary Clark, “in her own right as well as survivor in estate of joint tenancy with Reuben R. Clark,” conveyed the land to the plaintiff herein. This deed provided that plaintiff should execute and deliver to Barbary, his mother, a life lease thereof, and also should, on or before her death, pay to the defendants, his three sisters, the sum of $150 each. Barbary died on May 29, 1927. Plaintiff tendered to appellant the $150, and, on her refusal to accept, filed the bill of complaint herein, paid the $150 into court, and prays for a decree quieting his title to said land.
1. The finding of the trial court that the deed to Reuben R. and Barbary M. Clark contained the interlineation at the time it was executed is supported by the preponderance of the evidence.
2. It is undisputed that Barbary • executed the deed to plaintiff in 1904, and left it with the scrivener, Mr. Goodydn. Counsel for appellant contends that the proof does not justify the finding of the trial court that Goodwin delivered it to plaintiff at his mother’s request in 1925.. Goodwin so testified. His testimony is in no way impeached, nor does it appear that he has any interest in the controversy. It does appear that the mother was at that time living with the appellant at her home in Traverse City. During a part of the time she was in ill health, but, while aged, it does not appear that she was incompetent. She had lived with the plaintiff after the father’s death in a home in Carson City, and afterwards upon the land in question until 1912. The proofs justify the finding that while living with the appellant she received from the plaintiff “the full rental value of the land.” While there is testimony tending to negative the fact of delivery, we are of the opinion that the finding by the trial court, who heard and saw the witnesses, is supported by the preponderance of the evidence.
3. It is urged that the provision in the deed that plaintiff should execute and deliver to his mother a life lease of the farm was a condition precedent to title passing to him thereunder. Title did not pass to plaintiff until delivery of the deed to him in 1925. In the meantime, he had been farming the land and paying to her its fair rental value, under which she received all that a life lease would have entitled her to. She had reached an advanced age at the time she instructed delivery to be made to the plaintiff, and doubtless felt assured that she would receive such rental value thereafter. That she did not at that time insist on plaintiff’s giving her the life lease is not a sufficient reason for holding that title did not pass to him.
The other questions discussed have been considered, but do not seem to merit discussion.
The decree is affirmed, with costs to plaintiff and appellee against the appellant.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Fellows, J.
(dissenting). The sole question submitted on this record is the validity of that portion of Act No. 7, Pub. Acts 1927, which provides that one charged with an escape shall be tried in the county where the administrative offices of the prison may be irrespective of where the escape took place. Defendant was sentenced to the Jackson prison, and while there, and before his time had expired, was' sent to a road camp in Clinton county to work on road construction; there he escaped. Some two days later he was recaptured and was tried in Jackson for the escape, and convicted.
The writer feels bound by three earlier decisions of this court to sustain the defendant’s contention. Only by the adoption of a legal fiction, which to my mind is fallacious, can these decisions be circumvented, and it be held that' a crime actually committed in Clinton county was in contemplation of law committed in Jackson county. In Swart v. Kimball, 43 Mich. 443, the act was to punish the cutting of timber on State lands. By the terms of the act the prosecution might be brought in the county where the crime was committed or in other counties. Kimball was prosecuted in Ingham county for trespass on State lands located in Alpena county. He was discharged on habeas corpus and brought the action for false imprisonment. It may be noted that all the records and files necessary to be used on the trial were located at Lansing, and it is here pointed out that all the records and files are here located at Jackson, so that the same question of convenience Was present in both cases. The opinion by Mr. Justice Cooley is a most forceful one. The case has been cited by this and other courts of last resort time and time again. We quote some excerpts from the opinion:
“The circuit judge who tried the action for false imprisonment seems to have sustained the act. In this hé was plainly in error. The act is not only tyrannical and oppressive in the last degree, and such as no legislature, even if its power was ample, should ever have passed, but it is manifestly in conflict with one of the plainest and most important provisions of the Constitution.
‘ ‘ The Constitution of the State provides that ‘ The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law. ’ Article 6, § 27. The right is to remain. What right? Plainly the right as it existed before; the right to a trial by jury as it had become known to the previous jurisprudence of the State. * * * _
_ “Now that in jury trial it is implied that the trial shall be by a jury of the vicinage is familiar law. Blackstone says the jurors must be ‘of the visne or neighborhood; which is interpreted to be of the county where the act is committed.’ 4 Com. 350. This is an old rule of the common law; Hawk. P. C. b. 2, c. 40; 2 Hale P. C. 264; and the rule was so strict and imperative that if an offense was committed partly in one county and partly in another, the offender was not punishable at all. Hawk. P. C. b. 2, c. 25; 1 Chit. Cr. L. 177. This overnicety was long since dispensed with, but the old rule has in the main been preserved in its integrity to this day.
# * *
“We have not the slightest hesitation in declaring that the act of 1857 (No. 100) so far as it undertakes to authorize a trial in some other county than that of the alleged offense, is oppressive, unwarranted by the Constitution, and utterly void.”
The next statute of similar purport which came before this court (2 Comp. Laws 1871, § 7605) permitted prosecutions for embezzlement in the' county where the principal place of business of the employer was located. The embezzlement had taken place in Wayne, but under the terms of the act the prosecution took place in Washtenaw. Following the Swart Case, it was held that the proceeding was a nullity and “the constitutional guaranty on this subject is too plain to be controverted.” Hill v. Taylor, 50 Mich. 549. Again the legislature attempted to confer original jurisdiction upon counties other than those in which the crime was committed by providing that prosecutions for stealing from a railroad car might be brought in any county through which the car passed (3 Comp. Laws 1897, § 11633). And again this court held such legislation unconstitutional. People v. Brock, 149 Mich. 464 (119 Am. St. Rep. 684). There is an air of finality in the language of Mr. Justice Hooker, who wrote for the court, when he used the following language in concluding the opinion:
“Whatever may have been held by the courts of other States, the cases of Swart v. Kimball, supra, and Hill v. Taylor, 50 Mich. 551, settle the rule for Michigan. ’ ’
While these three decisions unequivocally negative the power of the legislature to confer original jurisdiction upon counties other than those where the crime was committed, this court, in recognition of the right and the importance of the right to a trial by a fair and impartial jury, has sustained the validity of a statute permitting the transfer of a case to another county where a fair and impartial tri.al may not be had in the county where the crime was committed. People v. Peterson, 93 Mich. 27; People v. Fuhrmann, 103 Mich. 593; Glinnnan v. Judge of Recorder’s Court, 173 Mich. 674; People v. Rich, 237 Mich. 481. This court has likewise recognized the validity of legislation which extended jurisdiction over a small strip adjoining the county line (People v. Donaldson, 243 Mich. 104), quite necessary and important in early days when section lines had not been definitely established, and to legislation which extends jurisdiction over the Great Lakes (Andrews v. Ellsworth, 190 Mich. 157), which, of course, are not organized into counties and where without such legislation crime on the Great Lakes would go unpunished. But in none of the decisions on these subjects has the quoted language Mr. Justice Cooley used in deciding, and necessarily used in deciding, Swart v. Kimball, supra, been questioned. It is quite likely the provision before us would convenience the State; it might not seriously inconvenience defendants; I do not know. But I do know it will be an opening wedge thrust into the fundamental law, into the foundation of the building. Depriving our meanest citizens of their constitutional rights is not only an offense against them but also an offense against our institutions.
I think this conviction should be set aside without a new trial.
Wiest, J.
(for affirmance). I am constrained to disagree with the conclusion reached by Mr. Justice Fellows.
The right of an accused to be tried in the jurisdiction where it is alleged he committed crime is ancient and valuable and should be maintained. But, in case of escape of a prisoner, in confinement under sentence, to a State prison, is the mere place of the act to fix the venue or may the act itself, in its relation to the imprisonment, be declared by law to fix the venue ? In order to be guilty of an escape, a prisoner need not break doors or walls; he escapes if he removes himself from the imposed restraint over his person and volition. In Clinton county the defendant was a prisoner of the State, in fact under confinement, and in law considered in the State prison. It is true that he departed from custody in Clinton county, but his escape was from imprisonment in the State prison, and such escape, and not the mere place of his departure, was the gist of the offense, and he cannot be heard to say that he has been deprived of a constitutional right by trial in Jackson county.
In Bradford v. Glenn, Judge, 188 Cal. 350 (205 Pac. 449), a prisoner, employed in road work, escaped in one county and the court held he could be tried in another county under a statute which provided that a charge of escape from a prison may be tried in any county in the State. It was there said:
“We are of the opinion that a person serving a sentence of imprisonment in a State prison is, in contemplation of law, a prisoner therein, as well when at work outside under the surveillance of prison guards as when confined within its walls, so that if he escapes when outside he escapes from a prison, within the meaning of section 787.”
To like effect see People v. Vanderburg, 67 Cal. App. 217 (227 Pac. 621).
I think the statute valid, and the conviction should be affirmed.
North, C. J., and Fead, Clark, McDonald, Potter, and Sharpe, JJ., concurred with Wiest, J. | [
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Clark, J.
Facts necessary to decision of this case are fully stated in Stuart v. Dorow, 216 Mich. 591. There Stuart filed bill for specific performance against August Dorow and Matilda Dorow, and had decree. The defense attempted and held without merit was, quoting from the opinion:
“Defendants sought to evade the terms of the contract by claiming that plaintiff and Eben C. Smith, who was acting for Stuart, made false representations to them as to the value of the land, and that Smith, who was pretending to represent defendants, did not disclose to them that this and adjoining lands were being purchased for a contemplated suburban village with rapid transportation service to Detroit via the Pere Marquette railway.”
In this case the Dorows brought an action for damages for fraud, above indicated, against Smith and had verdict, but, on decision of a reserved motion to direct, defendant had judgment, and plaintiffs bring error. The trial judge gave a number of reasons for ordering judgment. It is not necessary to consider more than one, namely,
. .“Because the plaintiffs have failed to show fraud or bad faith on the part of the defendant.”
That defendant was not guilty of fraud toward plaintiffs is clearly shown, as a master of law, in the statements and conclusions set forth in the opinion above cited, which we here adopt as applicable to this case.
It follows that the judgment is affirmed.
North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Champlin, J.
A bill of complaint was filed in the superior court of the city of Detroit, of which the following is a copy
“Edwin Pardridge, of the city of Chicago, county of Cook, and State of Illinois, brings this his bill against Annie-Walsh, James Phillips, and Michael Brennan, all of the city of Detroit, county of Wayne, and State of Michigan. And. thereupon your orator complains and says:
“ 1. That your orat.or is engaged in the dry-goods business in the said city of Detroit, and that said business is more particularly carried on and managed by Willis D. Nve as the agent of your orator.
“2. That, in the regular course of said business, your orator has from time to time, for a number of years, purchased, at auction and otherwise, goods and merchandise of the firm of Thomas Walsh & Co., auctioneers, etc., which said firm of Thomas Walsh & Co., at the time hereinafter mentioned, was, and for some years had been, doing business under said firm name in the city of Detroit aforesaid; that the principal member of said firm was the late Thomas Walsh, but your orator alleges that he, and his said agent Nye, were led to suppose, and from the manner in which said business was conducted had good reason to believe, that said firm contained other members, and especially that the defendant James Phillips was a partner of the said Walsh in said business at the time of the transactions hereinafter stated.
“3. That on the sixteenth day of September, 1885, said Nye, as agent for your orator as aforesaid, attended an auction sale at the store of said Thomas Walsh & Co., No. 17 Monroe avenue, in said city of Detroit, and purchased at said auction sale certain goods and merchandise from said firm,, for which he agreed to pay a certain sum; that said sale was regulady conducted, as had been other previous sales of said firm; and that nothing occurred at such sale to arouse the suspicion of your orator’s agent aforesaid, as your orator is informed and believes, and that said goods were purchased by said Nye, as agent of your orator, at full and fair value.
'' 4. That subsequent to said purchase of said goods, and on, to wit, the seventeenth day of September, 1885, the defendant James Phillips came to said Nye, agent as aforesaid, at your orator’s store in Detroit, and offered to duplicate said sale made to your orator on the day previous, and to sell to your orator á like bill of goods as your orator had purchased at auction as aforesaid, for a like price, and that said Nye, as agent for your orator, bought said second lot of goods as so offered, and afterwards, to wit, on the eighteenth day of September, 1885, all of said goods were delivered by said Thomas Walsh & Co., to your orator, at your orator’s stores, Nos. 14 and 16 Monroe avenue, in said city of Detroit.
'' 5. That afterwards, and on, to wit, the twenty-first day of September, 1885, said Phillips came to said Nye, agent of your orator, and presented to him a bill bearing dqte Septem-. ber 16, 1885, for both of said lots of goods purchased by your orator as aforesaid, and said Nye delivered to said Phillips a check for $3,696.10 in payment thereof in full, and said Phillips at the same time delivered to said Nye á receipt for the same, signed, 'Thomas Walsh & Co., per J. Phillips;’ true copies of which said bill, check, and receipt are attached hereto, marked 'Exhibits A, B, and C,’ respectively, and made a part of this bill of complaint.
" 6. Your orator further alleges, upon information and belief, that after your orator’s purchase of the goods, as herein-before set forth, of Thomas Walsh & Co., to wit, on the sixteenth day of September, 1885, and before your orator made payment therefor, as stated, on the twenty-first day of Sep tember, 1885, Thomas Walsh, of said Thomas Walsh & Co., died. The exact time of his death your orator does not know, but alleges the same to have occurred between the sixteenth and twenty-first days of September, 1885.
“7. Your orator further shows, upon information and belief, that Annie Walsh, defendant herein, is the widow of said Thomas Walsh, deceased, and that the defendant James Phillips has paid over to said defendant Annie Walsh a part or all of "the money paid by your orator for said .goods purchased, as aforesaid, from Thomas Walsh & Co.
“8. Your orator further alleges that said Thomas Walsh, deceased, left a last will and testament, duly executed, which said will was filed in the probate court for the county of Wayne on the twenty-third day of September, 1885, a copy of said will being hereto attached, marked ‘Exhibit D,’ and made a part of this, your orator’s bill of complaint. And your orator further alleges that he has caused an examination to he made of the records of said probate court, and that said Annie Walsh, although named as sole executrix of said will, has failed and neglected to make any application for the probate of said will, or her acceptance of the trust imposed upon her by said will.
“9. Your orator further shows unto the court that the defendant Michael Brennan, as special administrator of the estate of said Thomas Walsh, deceased, on the twenty-sixth day of October, 1885, instituted a suit on the law side of this honorable court in trover against your orator, and has attached your orator’s property, for the purpose of recovering from your orator said goods, or their value, so purchased from said Thomas Walsh & Co., and paid for as hereinbefore alleged; that hereto attached, marked ‘Exhibit E,’ is a copy of the affidavit of the said Michael Brennan, upon which he caused the issuance of the writ of attachment against your orator aforesaid, and which affidavit your orator makes a part of this his bill.
“10. Yobr orator further alleges that said Michael Brennan was appointed special administrator of the estate of said Thomas Walsh, deceased, upon the application of one of the creditors of said Thomas Walsh; that at the time of his bringing said suit against your orator, and for some time prior thereto, said Brennan knew well all the facts hereinbefore stated as to the purchase of and payment for said goods, and of the payment of the money therefor over to Annie Walsh by said Phillips.
“ 11. Your orator further alleges that said goods were purchased'by your orator in good faith, and also that said payment was made therefor by said Nye to said Phillips only after said Phillips positively assured and represented to said Nye that he, said Phillips, had full power and authority to sell and deliver said goods, and receive payment therefor, and that in making Such payment your orator relied entirely upon such assurances and representations of the said Phillips, and upon the full belief that the said Phillips was a partner of the said Thomas Walsh in the business aforesaid; but your orator avers that he has, since such payment, been informed and believes that said Phillips had no such authority, either in fact or law, and that he was only a clerk in the employ of said Thomas Walsh, and that he, the said Phillips, combined and confederated with the defendant Annie Walsh, and with divers other persons as yet to your orator unknown (but whose names, when discovered, your orator prays may be inserted herein, and they made parties hereto, with proper and apt words to charge them), to cheat and defraud your said orator out of said money, as aforesaid; that said defendants Phillips and Annie Walsh have converted the money so paid by your orator for said goods to their own use.
“And your orator further shows unto the court, upon information and belief, that the defendants James Phillips and Annie Walsh are financially irresponsible,' and your orator has good reason to believe that, unless restrained by the court, said defendants will squander said money paid by your orator as aforesaid; and, in case your orator be found liable to said defendant Brennan in tue suit at law so brought by him against your orator as aforesaid, then your orator will be and now is remediless, and will suffer great loss. All of which actings, doings, and pretenses of the said defendants are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppression of your orator, for which your orator has no sufficient remedy at and by the .strict rules of the common law.
“Your orator therefore prays the aid of this honorable ■court in the premises, and that this court may determine by its decree herein—
“ 1. Whether the said purchases of the goods made by your ■orator, as aforesaid, from said Thomas Walsh & Co., were made of, and payment made to, the proper party, having right and authority to the same.
“2. That if the court shall determine that said defendant Phillips had no authority to sell, deliver, and receive payment for said goods as aforesaid, then that your orator have a decree for the repayment, by said defendants Phillips and Annie Walsh, of said money to yonr orator, or that the same be paid to said Brennan as special administrator, or his successors, or to the proper personal representatives of said Thomas Walsh, deceased.
“ 3. That said defendant Michael Brennan-may make disclosure as to the moneys received by him as special administrator of said Thomas Walsh, deceased; and if it be.found that said Phillips or said Annie Walsh have paid over, or are-ready to pay over, to said Brennan, special administrator, said money paid to said Phillips by your orator as aforesaid, then that said Brennan, special administrator, be enjoined from prosecuting said suit instituted against your orator as-aforesaid, and that said Brennan, special administrator, be enjoined from prosecuting said suit until the determination of this suit.
“4. Your orator further prays that a receiver may be appointed by this court, with full power to demand immediate payment to him, by either or both of said defendants James-Phillips and Annie Walsh, or their or each of their agents or attorneys, of the said sum of money, to wit, three thousand six hundred and ninety-six dollars and ten cents, so paid as aforesaid by your orator to said defendant James Phillips, to-be held by said receiver as this court may direct, and to await the final disposition thereof by the decree of this court in this case; and your orator prays that the said defendants Annie Walsh and James Phillips may be directed, by a peremptory order of this court, to forthwith pay and surrender said sum of money to such receiver as aforesaid.
“ 5. And your orator further prays that, in case this honorable court does not appoint a receiver as hereinbeforeprayed, then that said defendants Phillips and Annie Walsh, or their or each of their agents or attorneys and servants, be restrained and enjoined from disposing of, or in anywise transferring any of, said money received from your orator as aforesaid, or any property, moneys, or effects in their hands, which have been received by them, or either of them, since the death of said Thomas Walsh, deceased, directly or indirectly from his estate, or which said Annie Walsh and said Phillips received from the business and resources of the said firm of Thomas Walsh & Co. during the last sickness of said Thomas Walsh, deceased; and that they, or either of them, if they have removed such property, money, or effects-out of the jurisdiction of this court, be decreed to bring such property, money, or effects again within the jurisdic Non of this honorable court; and that they, and each of them, be decreed to hold such property, money, and effects in trust for your orator; and if any liability be established .from your orator to Michael Brennan, special administrator ■of Thomas Walsh, deceased, in said suit inst tuted by him against your orator as aforesaid, then that the amount of such liability, if any, may be decreed by this honorable court to be paid to your orator out of the property, moneys, and ■effects in the hands and possession of said Phillips and Annie Walsh, obtained by them, or either of them, as aforesaid.
“ Your orator further states that he is ready and willing -to prove the allegations of this his bill in such manner as this court may direct, and that this bill is brought as soon ■after the discovery of the frauds as the circumstances could -be investigated, and that your orator’s bill could be prepared.
“ May it please the court to grant unto your orator the -writ of injunction in the usual form, and in accordance with Nie foregoing prayer therefor.
“Also may it please the court, the premises being considered, to grant unto your orator the writ of subpoena m the usual form, to be issued out of and under the seal of this honorable court, the same to be directed to the defendants, -James Phillips, Annie Walsh,.and Michael Brennan, and thereby commanding them, and each of them, on a certain ■day and under a certain penalty, to be therein inserted, personally to be and appear unto this court, then and there to .show cause, if they can, why your orator should not have the relief prayed for herein; and also there to make full, true, and complete answer, without oath (answer under oath being hereby expressly waived), to all and singular the premises, .and to all the separate matters hereinbefore stated and charged, as fully and particularly as if the same were repeated and they interrogated as to each of said matters, and to stand to and abide by such further order, direction, and ■decree as this court shall make, and as shall be agreeable to -equity and good conscience.”
To this bill of complaint the defendant Michael Brennan interposed a general demurrer for want of equity. Such •demurrer admits all the allegations of the bill that are well pleaded.
The parties defendant in a bill of complaint are those .against whom process of subpoena is prayed.
There is no process of subpoena prayed against the defend ant Brennan in his representative .capacity. He is proceeded against in his individual capacity. The bill against Brennan is brought for the purpose of enjoining proceedings at law; that is, the prosecution of the trover suit. But that suit was instituted by Brennan as the .special administrator of the. estate of Thomas Walsh, deceased. I merely point out this in passing. Such defect would be open to amendment, and the case is not disposed of on this ground.
The only relief prayed against Brennan is the following :
That Michael Brennan may make disclosure as to the moneys received by him as special administrator of said Thomas Walsh, deceased; and if it be found that said Phillips or said Annie Walsh have paid over, or are ready to pay over, to said Brennan, special administrator, said money paid to said Phillips by complainant, then that said Brennan, special administrator, be enjoined from prosecuting said suit instituted against complainant, and that said Brennan, special administrator, be enjoined from prosecuting said suit until the determination of this suit; and if any liability be established from complainant to Michael Brennan, special administrator of Thomas Walsh, deceased, in said suit instituted by him against complainant, then that the amount of such liability, if any, may be decreed to be paid to complainant out of any property, moneys, and effects in the hands and possession of said Phillips and Annie Walsh, obtained by them, or either of them, as stated in the bill of complaint.
There is no prayer for general relief. The bill contains no statement or charge that the money paid over to Phillips, or any part thereof, has come to the hands of Brennan, special administrator. On the contrary, it expressly charges' that Phillips and Anuie Walsh have converted the money so paid by complainant to their own use; that they are irresponsible, and, unless restrained, will squander said money; and, if it should be found that complainant was liable in said suit at law, he would be remediless. There is therefore no statement or charge in the bill upon which Brennan, as special administrator, can be called upon to make disclosure as to the moneys- received by him as special administrator of Thomas Walsh, deceased. There is no charge that Brennan is conspiring with Phillips and Mrs. Walsh to cheat or defraud complainant, or that he is engaged in carrying out a fraud previously concocted. And nó reason is shown by the bill why the administration of the estate should be interfered with or arrested in this manner.
The, complainant prays that if it should appear that Brennan has received any of the money complainant paid to Phillips, which he alleges Phillips and Mrs. Walsh have converted to their own use, or if Phillips and Mrs. Walsh are ready to pay it over to him, then that he be enjoined from prosecuting the trover suit. These statements are entirely insufficient to base the relief prayed for upon. If his statements relating to the manner of dealing with Thomas Walsh & Co., and with Phillips as a member thereof, be true, or if the fraud alleged as against Thomas Walsh be true, they are available in his defense of the trover suit. If there was no fraud or was no partnership, it is difficult to see how he can reach the general assets of the estate, without averring, which he does not do, and proving, that the administrator has received the money which belongs to him. Whatever his remedy may be against Phillips and Mrs. Walsh, I do not think he has made a case for the relief prayed for against the special administrator.
The decree of the circuit court must be reversed, and the bill of complaint dismissed as to the defendant Michael Brennan, with costs of both courts. The record will be remanded for further proceedings as to the defendants Walsh and Phillips.
The other Justiees concurred. | [
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] |
Morse, J.
Chandler sued the Careys in justice’s court. He ■declared orally in assumpsit upon the following instrument as a promissory note:
“$119.00.
“ For value received, we jointly or severally promise to pay Alonzo Heath, or bearer, one hundred nineteen dollars, on or before the first day of October next, upon completion of the work to be done by said Heath on a dwelling-house to be built by him for said first parties.
“February 7, 188J/.. Abbey J. Carey.
“D. W. Carey.”
The defendants pleaded the general issue, and gave notice of set-off and recoupment.
Upon the trial in that court the plaintiff testified that he owned the note, and purchased it before due, and paid value for it, and offered the instrument in evidence.
The defendants undertook to show a conversation with Heath, the payee named in the note, but were not permitted to do so.
No further evidence was offered or introduced by either party, and the justice rendered judgment for the plaintiff for the sum of $123.16, and costs.
The plaintiffs in error then sued out a writ of certiorari to the circuit court, which court affirmed the judgment of the justice. The case is brought here upon writ of error.
The judgment should be reversed.
The instrument sued upon is not a promissory note, but a simple contract to pay a certain sum of money when certain work is performed by Heath. Brooks v. Hargreaves, 21 Mich. 254. There was no evidence that Heath had done the work named in the agreement, and therefore no liability was shown upon the part of the Careys to pay the sum specified in the contract.
The judgment of the circuit and justice’s courts must be reversed, and judgment entered here for the plaintiffs in error for the costs of all the courts.
The other Justices concurred. | [
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J. H. Gillis, J.
Defendants Village Plaza, Inc., Fairborn Property Co., Inc., Schostak Brothers & Company, Inc., and Bank of the Commonwealth appeal a jury verdict awarding plaintiffs Frank and Anthony Fera $200,000 for breach of a lease.
On January 14, 1965 plaintiffs Frank and Anthony Fera signed an "intent to lease” and deposited $1,000 as security on a location in Fairborn’s proposed Village Plaza shopping mall. On August 20, 1965, plaintiffs and agents of Fairborn-Village Plaza executed a ten-year lease, for a "book and bottle” shop at a certain contested location in the mall at $1,000 minimum monthly rent and 6% rent override on annual receipts in excess of $240,-000.
Suffice it to say, complications arose. The mall, scheduled for completion in 1966, suffered from 26 work stoppages, skyrocketing costs, and sundry crises. Tenants did not move into the still unfinished mall until 1969. Much earlier, in February 1967, Bank of the Commonwealth, the construction lender, accepted Fairborn’s $5,750,000 mortgage on the mall. When Fairborn defaulted, the permanent lender terminated its commitment. On March 20, 1968, the bank took a deed in lieu of foreclosure from Fairborn and Village Plaza, undertaking to complete and operate Village Plaza as Fairborn’s "agent”. In August 1969 the bank re-conveyed the property to Fairborn. In the interim, Schostak Brothers managed the property and served as leasing agent in the bank’s behalf.
In late 1968, after finding an unexecuted lease for 576 feet, dated July 1967, Schostak’s agent contacted plaintiffs. When plaintiffs asserted the existence of the prior lease, Schostak’s agent requested production. However, the agent’s demand could not be met because plaintiffs had surrendered their sole copy of the lease to Fairborn’s agent for certain modifications. An impasse ensued. The agent claimed he offered plaintiffs "alternate space” which they accepted. Plaintiffs vehemently denied that contention. (When negotiations began, the disputed space was available; however, Schostak leased the contested space to third parties in late 1968 or early 1969.)
Plaintiffs had once operated a liquor store, and currently operated several bookstores. Since 1969, they have developed "Little Professor’s”, a 24-store franchise operation, in 17 states. Relying on that expertise to prove damages, Frank Fera submitted an annual budget for an unnamed year reflecting $18,000 first-year profits. He claimed a 6% profit increase each year thereafter. A defense expert testified a $14,000 loss would result.
The trial court excluded defense hearsay testimony about the bankruptcy of several Village Plaza stores, but permitted testimony about occupancy rates, traffic patterns and volume as relevant to lost profits.
A Liquor Control Commission regional supervi sor and a former commission member both testified that the described book and bottle store could not obtain a license. Finally, defense witnesses testified that plaintiffs lost interest in the original space, refused an offer of better space, and never operated the business. The jury awarded $200,000 to plaintiffs, finding all four defendants liable.
Defense motions for directed verdict and new trial were denied.
On appeal, defendants claim the trial court erred in finding waiver of the nonjury trial provision in the lease. We do not agree. The instant pretrial proceedings support the trial judge’s conclusion. Further, the sequence of events creates some doubts about the parties’ good faith in the conduct of discovery proceedings. Plaintiffs had sued on the theory of a lost or destroyed lease executed in January, 1965. Defendants denied the lease for "lack of sufficient information to form a belief’. Plaintiffs thereafter demanded a jury trial without defense objection, although the missing lease contained a nonjury trial provision. At the pretrial conference and in the pretrial summary, defendants never objected to the jury trial. On the first day of trial, some three years after filing of the complaint, answer, and commencement of discovery, defendant Fairborn produced at last the August, 1965, lease. Plaintiffs submitted an unexecuted copy. Defendant bank then moved to strike the jury, in contravention of the pretrial statement.
No error arose in finding waiver in these circumstances. GCR 1963, 301.1(2), provides:
"In every contested civil action the court shall direct the attorneys for the parties to appear before it for a conference to
"(2) * * * determine whether a jury trial shall be had pursuant to demand, if any, theretofore made.”
GCR 1963, 301.3, provides:
"The judge shall prepare, file, and cause to be served upon the attorneys of record, at least 10 days in advance of trial a summary of the results of the pretrial conference specifically covering each of the items herein stated. The summary of results controls the subsequent course of the action unless modified at or before trial to prevent manifest injustice. "(Emphasis supplied.)
The modification of the pretrial summary rests within the trial court’s sound discretion. Reinhardt v Bennett, 45 Mich App 18; 205 NW2d 847 (1973). Different from Reinhardt, supra, where a disputed issue had been sufficiently raised in the pleadings to avoid unfair surprise, the nonjury trial provision here presumably caught plaintiffs unaware. While the waiver clause appeared in small print in plaintiffs’ unexecuted lease copy, knowledge of that provision is more properly chargeable to defendants who used a variety of standard shopping center leases, some incorporating a waiver of jury trial provision. Even assuming plaintiffs were aware of that provision, defendants had the burden of timely assertion. Defendants’ inaction permitted plaintiffs to assume defendants were satisfied with a jury trial. Assertion of the waiver provision could therefore have caused unfair surprise, even assuming some prior knowledge of that provision. The court rule requires a showing of manifest injustice. We find none.
Next, defendants claim that plaintiffs’ failure to assert their right of occupancy under the lease estops them from suit. Abandonment requires proof of an intent to abandon and acts of abandon ment. Log-Owners’ Booming Co v Hubbell, 135 Mich 65; 97 NW 157 (1903). The burden of proof rests on the party asserting it. West Michigan Park Association v Department of Conservation, 2 Mich App 254; 139 NW2d 758 (1966). The parties introduced conflicting evidence as to acts of abandonment. The fact-trier’s resolution of a disputed factual issue will not be disturbed on appeal unless no evidence supports that finding. Credibility is for the jury. Here, the jury could have found that plaintiffs’ delay in asserting their rights could reasonably be attributed to construction delays and ongoing negotiations with Schostak’s agent. Failure to assert occupancy rights does not constitute abandonment in this context.
The trial court did not permit defendants to amend their pleadings to add failure to mitigate damages as an affirmative defense. Since parties suing for breach of contract have the affirmative obligation to mitigate damages, Van Lierop v Chesapeake & O R Co, 335 Mich 702; 57 NW2d 431 (1953), cert den, 346 US 834; 74 S Ct 40; 98 L Ed 357 (1953), the assertion of that defense could not have surprised plaintiffs.
However, the issue was directly presented, and the trial court properly instructed the jury about plaintiffs’ duty to minimize their damages. Only harmless error arose from failure to permit amendment of the pleadings.
Testimony presented by defendants contended that they offered plaintiffs an alternate and superior location in the plaza. Plaintiffs testified that the sought-after space was unique and the proffered location was inferior to the agreed-on space. We cannot say as a matter of law that the alternate space was superior; the issue was one for the jury. Since sufficient evidence supports the jury’s necessary finding of inferiority, we do not disturb that finding.
We cannot conclude, however, that sheer volume of testimony in this case removed the plaintiffs’ attempted proof of lost profits from the realm of speculation. We, therefore, reverse and remand for a new trial on the issue of damages. The sole testimony supporting plaintiffs’ claim for lost profits is the budget and proof of the option to purchase a liquor license.
A mere showing that plaintiffs operated other bookstores, and once operated a liquor store, is insufficient to prove this business had been "interrupted” as our cases have defined it. This case, therefore, does not fall within the exception to the ancient rule:
"[T]he measure of damages when a lessor fails to give possession of the leased premises is the difference between the actual rental value and the rent reserved. 1 Sedgwick on Damages (8th Ed), § 185. Mr. Sedgwick says:
" 'If the business were a new one, since there could be no basis on which to estimate profits, the plaintiff must be content to recover according to the general rule.’
"The rule is different where the business of the lessee has been interrupted. Taylor v Cooper, 104 Mich 72; 62 NW 157 (1895).” Jarrait v Peters, 145 Mich 29, 31; 108 NW 432 (1906).
These circumstances do not warrant treating the proposed book and bottle store as an established business. Cf. Jarrait v Peters, supra, p 32.
The rationale which precludes recovery of lost profits for a new business is simply that no basis exists to estimate profits. Plaintiffs’ testimony about future profits is incompetent because speculative. See Taylor v Cooper, 104 Mich 72, 75; 62 NW 157 (1895); Stern Co v Friedman, 229 Mich 623; 201 NW 961 (1925). A tenant compelled to move in violation of a renewal agreement, who operated his business for some time, can clearly recover lost profits estimated from evidence of profits before and after his removal. Rooks v Booth, 160 Mich 62; 125 NW 69 (1910). Similarly, in Redinger v Standard Oil Co, 6 Mich App 74; 148 NW2d 225 (1967), where plaintiff had operated exactly the same business in the new location, albeit for a short time, he could rely on lost profits as a measure of damages.
While Sinclair Refining Co v Gutowski, 195 F2d 637 (CA 6, 1952), states the modern trend and perhaps better rule, the Court in that case did not consider extant Michigan authority, never overruled, cited supra. We do not, therefore, read that case as relevant authority.
We think different considerations are attendant upon damages for breach of a lease than affect other contract breaches. Given ancient authority, never overruled, only the Supreme Court has the prerogative to blur those distinctions; ours is to follow settled authority.
Assuming, however, Sinclair Refining Co v Gutowski, supra, is reliable authority, plaintiffs are barred from recovery because proof of lost profits was entirely speculative. The issue was not jurysubmissible.
Plaintiffs are entitled to recover their $1,000 deposit.
The trial court erroneously permitted lost profits as the measure of damages for breach of the lease.
In light of our conclusion, other allegations of error are rendered moot.
Reversed and remanded for a new trial on the issue of damages, not inconsistent with this opinion. No costs, neither party having prevailed in full.
McGregor, P. J., concurred.
The use of the term "agent” does not preclude our finding that the bank acted as a principal in the transaction.
"Appellant contends that the judgment for $8,000.00 should be set aside because it represents the loss to appellee of prospective damages; that the Sinclair station was a new business, and that the profits therefrom to appellee would be too speculative. There was expert testimony to the effect that this amount would represent the minimum profit that would be realized. We cannot say that the amount so ñxed was not the natural and probable consequences of the breach or within the reasonable contemplation of the parties. We find no reason for setting it aside or disturbing the discretion of the Court in sustaining it. See Marquette Cement Mfg Co v Campbell Const Co, 6 Cir, 184 F2d 352, 354 [1950].” Sinclair Refining Co v Gutowski, 195 F2d 637, 640-641 (CA 6, 1952). | [
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Boyle, J.
The question before this Court is whether the State Boundary Commission exceeded its statutory authority when it determined that appellee, the Charter Township of Shelby, was not exempt from annexation under MCL 42.34(1); MSA 5.46(34)(1). The commission found that Shelby was not exempt on the basis that neither the amount of water services nor the amount of sewer services Shelby provided met the standard for exemption set forth in §34(l)(f). Shelby appealed the commission’s order of annexation to the Macomb Circuit Court, which set the order aside as in excess of the commission’s statutory authority pursuant to § 106(l)(b) of the Administrative Procedures Act, MCL 24.306(l)(b); MSA 3.560(206)(l)(b). The court held that MCL 42.34(l)(f); MSA 5.46(34)(l)(f) plainly and unambig uously exempts a charter township which provides any water or sewer services from annexation, and that the commission had therefore exceeded its statutory authority in finding the amount of water and sewer services provided by Shelby to be insufficient for exemption from annexation. The Court of Appeals, with some qualification, affirmed, 129 Mich App 650; 341 NW2d 855 (1983). We granted leave to appeal, 422 Mich 857 (1985), and now reverse.
FACTS
On December 14, 1977, the City of Utica filed a petition with the State Boundary Commission to annex one-half square mile of Shelby territory. MCL 117.9; MSA 5.2088. While the petition was pending before the commission, 1978 PA 242 and 1978 PA 591, amending MCL 42.34; MSA 5.46(34), were enacted, and Shelby began the process of incorporation, becoming a charter township on November 30, 1978. As amended by 1978 PA 591, § 34(1) provided:
Sec. 34. (1) A charter township existing on June 15, 1978, or a township incorporated after June 15, 1978 as a charter township that complies with the following standards, is exempt from annexation to any contiguous city or village except as 'provided in subsections (2) to (8):
(a) Has a state equalized valuation of not less than $25,000,000.00.
(b) Has a minimum population density of 150 persons per square mile to be determined by the secretary of state by dividing the most recent regular or special census of population by the number of square miles then under the jurisdiction of the charter township not to include the population or territory within the jurisdiction of an incorporated village.
(c) Provides fire protection service by contract or otherwise.
(d) Is governed by a comprehensive zoning ordinance or master plan.
(e) Provides solid waste disposal services to township residents, within or without the township, by contract, license, or municipal ownership.
(f) Provides water or sewer services, or both, by contract or otherwise.
(g) Provides police protection through contract with the sheriff in addition to normal sheriff patrol or through its own police department.
Nevertheless, at an adjudicative meeting held May 2, 1979, the commission held that Shelby was not exempt from annexation because it did not meet the standards of § 34(l)(f).
The evidence presented to the commission pursuant to Utica’s 1977 petition indicates that Shelby’s population consisted of approximately 40,000 residents in approximately 11,000 households, and that Shelby’s land area consisted of approximately 35.6 square miles. According to the commission’s undisputed findings with respect to the standards set forth in MCL 42.34(1); MSA 5.46(34X1), Shelby (a) had a 1977 state equalized valuation of $262,736,360, (b) had a population density of approximately 1000 people per square mile, (c) had a full-time, forty-member fire department, (d) had a comprehensive zoning ordinance and master plan, (e) provided solid waste disposal services, and (g) had a full-time, forty-nine-member police department. In these respects the commission found that Shelby met the statutory standards for exemption from annexation. According to the evidence before the commission, however, Shelby provided sewer services to only 1200 residents in 500 homes on six percent of the township’s territory, and provided water services to less than one-third of the popula tion, that is, to 12,000 residents in 4000 homes. The commission found that neither the amount of sewer services, nor the amount of water services, provided by Shelby met the standard set forth in § 34(l)(f), "[provides water or sewer services, or both, by contract or otherwise.” The commission consequently held that Shelby was not exempt from annexation under § 34(1).
After further proceedings not relevant here, the commission granted Utica’s petition at the May, 1979, adjudicative meeting. On December 11, 1980, the commission entered its final order of annexation. After initially staying the order, the Ma-comb Circuit Court reversed. The circuit court held that § 34(l)(f) unambiguously requires no more than the provision of any water or sewer service and was therefore not subject to interpretation by the commission. Since Shelby provided some water and sewer services, the circuit court held that "the State Boundary Commission decision is in direct violation of MCL 42.34 and ... is in excess of the statutory authority and jurisdic tion of the agency.” The Court of Appeals affirmed with the qualification that "[a] township that only provided token services would not be exempt under this statute since courts will depart from a literal construction of a statute when such a construction would produce absurd and unjust results.” 129 Mich App 656.
BACKGROUND
The boundaries of a unit of local government affect the tax base of the unit, the tax rate of its residents, the level of services provided to residents, and the potential for further development of the unit. Issues regarding annexations of part of a local unit to another therefore tend to be politically volatile. In accordance with long-established law in this state, and with federal constitutional law, this Court has recently held:_
The annexation question is essentially political, and political considerations cannot be avoided whether the power is exercised by the Legislature itself or by an authority to which the power is delegated. The ultimate decision will be a value judgment based on the particular facts and circumstances of the annexation under consideration. ... In this context it is . . . relevant that the power here delegated does not involve any vested right or legally protected interest. * * *
[N]o governmental authority or person has any legal right in the boundaries of a city, village or township. [Midland Twp v Boundary Comm, 401 Mich 641, 669, 670-671; 259 NW2d 326 (1977).]
Prior to 1970, all annexations had to be approved by the electors of the affected district, which was defined as "the whole of each city, village, or township from which territory is to be taken or to which territory is to be annexed,” MCL 78.5, 117.9; MSA 5.1515, 5.2088. A majority vote in favor of the annexation was required, first, in the area to be annexed, and, second, in the remainder of the affected district "voting collectively.” Id. These referenda elections frequently generated a great deal of divisiveness and litigation. See, e.g., Goethal v Kent Co Supervisors, 361 Mich 104; 104 NW2d 794 (1960); Genesee Twp v Genesee Co, 369 Mich 592; 120 NW2d 759 (1963); Taylor v Dearborn Twp, 370 Mich 47; 120 NW2d 737 (1963); Saginaw v Saginaw Co Bd of Supervisors, 1 Mich App 65; 134 NW2d 378 (1965); Niles Twp v Berrien Co, 5 Mich App 240; 146 NW2d 105 (1966).
The State Boundary Commission was created by 1968 PA 191, MCL 123.1001 et seq.; MSA 5.2242(1) et seq. In 1970, the Legislature delegated the authority over annexations to the commission. 1970 PA 219; see also 1972 PA 362. The background of 1970 PA 219 was, in 1977, described as follows:
I have been in the House for 13 years and I remember the emotional battles in the Legislature on annexation bills almost every year up to 1970.
Shortly before I started my first term in the House in 1965, a special annexation study committee, which had been appointed previously by Governor Swainson, submitted its report to Governor Romney. The basic recommendation in the report was to create a State Boundary Commission which would take the question of municipal boundary adjustments out of the arena of emotions (refer-enda elections) and put the question in the hands of an impartial body which would include both state and local representation and which would make decisions on the basis of facts rather than emotions.
I remember clearly the additional years of legislative battles before the State Boundary Commission was created in 1968. Even then, in order to get enough votes to create the Commission, the Legislature compromised by dropping from the bill the provisions relating to annexation.
* * *
The annexation law before 1970, with a few limited exceptions, was based on an automatic election. The old law and the election requirement obviously caused many problems.
The election provisions of the old law lead to , "strip annexations,” leaving the township with fragmented, oddly shaped, or widely separated areas which made it almost impossible for the township to provide even minimal township services.
[I]n 1970, a few Legislators got the Township Association, the Municipal League, and the Boundary Commission all together and worked out a compromise to which all parties agreed.
Although the 1970 compromise is not perfect, it certainly is better than the condition existing before 1970. [Statement of Representative Anderson, 1977 House Journal 942.]
Under the 1970 amendment giving the commission authority over annexations, § 9 of the Home Rule Cities Act, MCL 117.9; MSA 5.2088, became the exclusive means of "annexation of territory from a township or village to a home rule city,” MCL 117.9(11); MSA 5.2088(11). With a few minor exceptions, all annexations had to be approved by the commission which, in processing and deciding on requested annexations, had the broad discretion delegated to it in 1968 PA 191 with respect to petitions for incorporation. MCL 117.9(2); MSA 5.2088(2). If the commission denied an annexation or if it approved an annexation of territory on which fewer than one hundred persons resided, its decision was final. MCL 117.9(3), (4); MSA 5.2088(3), (4). If the commission approved an annexation involving territory with more than one hundred residents, however, its order of annexation became final only if no petition was filed within thirty days by twenty-five percent of the registered electors "residing in the portion of the territory approved for annexation, in the annexing city or in the balance of the township,” or if the electors in areas filing such a petition approved of the annexation by majority vote. MCL 117.9(5); MSA 5.2088(5). The effect of this legislation has been described as follows:
[T]he 1970 compromise legislation (Act 219, PA 1970) . . . changed city annexation procedures by eliminating the election requirement in the case of small annexations.
Compared to the inequities of the pre-1970 annexation procedures, the 1970 compromise achieved this: First, the townships got part of what they wanted, that is, the veto power over "large” annexations by providing for separate referendums in the balance of the township and in the area to be annexed.
Second, the cities got part of what they wanted by transferring the jurisdiction over annexations from the County Boards of Supervisors to the Boundary Commission, and providing that the Commission could approve or veto all annexations, but with the provision that in "small” annexations, the Boundary Commission’s approval would be final and would not be subject to referendum. [Statement of Representative Brotherton, 1977 House Journal 942-943.]
In 1977, HB 4030, which sought to amend § 34 of the Charter Township Act, MCL 42.1 et seq.; MSA 5.46(1) et seq., was introduced in the House of Representatives. 1977 House Journal 110. The purpose of the bill was to exempt charter townships from annexations of their territory. The issue in this case is whether the circuit court correctly interpreted a section of this bill, as ultimately enacted.
The problem HB 4030 was intended to remedy was described as follows:
Charter township law does not prevent a portion of a charter township from being incorporated as a city or village or from being annexed to a city or village. In the past, in most cases where a portion of a charter township was annexed by a city, the part that was annexed included a valuable tax base such as an industrial facility or shopping complex. When this happens repeatedly, the township is fragmented, sometimes even broken up into non-adjacent enclaves. Further, the township loses its tax base and finds it nearly impossible to supply needed municipal services to its remaining residents. Some persons believe that if charter townships are to remain as a viable system of local government, they must be protected from such encroachment by adjacent cities. [House Legislative Analysis Section, First Analysis HB 4030 (March 3,1977).]
On the basis of the assumption that annexations were harmful to townships, the initial version of the bill had two primary components. First, subsection (1) of the bill essentially prohibited the annexation of portions of charter townships. Second, the exception to this absolute prohibition of partial annexations set forth in subsection (3) required the approval of the "majority of the qualified and registered electors voting on the question in . . . the township from which a portion is to be annexed,” as well as the approval of the annexing city’s electors._
While proponents of the bill sought, on the whole, to prevent annexations, it appears that opposition to HB 4030 was based on several different grounds: the belief that such a strong shield against annexations was not good public policy, *** the concern that the bill created an unjustified incentive to townships to incorporate, the desire to adhere to the 1970 compromise, an opposition to the township veto power, and the belief that the referendum process was not desirable for annexation decisions. These divergent interests and views spawned many amendments to the proposed bill during the year and a half it remained pending before the Legislature. See History of HB 4030, 1978 House Journal 6667, 1978 Senate Journal 2935.
Various amendments, primarily added to the bill by the House, added several exceptions to the original, relatively absolute, exemption of charter townships from annexation. Section 34(1), the section of the statute involved in the present case, was added to HB 4030 by Senate amendment.
While prior to this amendment HB 4030 had exempted all charter townships, the addition of § 34(1) exempted charter townships which incorporated after the act’s effective date only if they met the listed standards. The bill was enacted with this amendment. The issue before the commission was whether Shelby met the § 34(l)(f) standard, and was consequently exempt from annexation.
ANALYSIS
The circuit court held that the commission’s order of annexation must be set aside because the commission had exceeded its statutory authority in deciding that Shelby did not provide sufficient water or sewer services to qualify for exemption from annexation under § 34(1). The court found that §34(l)(f) requires only that a charter township provide any water or sewer services. The Court of Appeals affirmed this construction of § 34(l)(f). Thus, the question before this Court is whether the lower courts correctly construed § 34(l)(f) to require only the provision of any water or sewer services.
A court is obligated to read a statute as written "[i]f the language employed in a statute is plain, certain and unambiguous,” Grand Rapids v Crocker, 219 Mich 178, 182; 188 NW 221 (1922). See also Dussia v Monroe Co Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971); Selk v Detroit Plastic Products, 419 Mich 1, 8; 345 NW2d 184 (1984). However, this statute is not unambiguous. The language "[p]rovides water or sewer services, or both . . .” is susceptible to more than one meaning. The language could be understood as meaning that the provision of "any” such services is sufficient. The language could also be understood to mean that a charter township must provide "complete” water or sewer services, that is, to all its residents at the optimal level. Since the statute is reasonably susceptible to more than one meaning, it is not unambiguous_
When a statute is ambiguous and susceptible to two or more constructions that could cause reasonable minds to disagree as to its meaning, the statute must be interpreted. City of Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d.804 (1959). Therefore, we must determine whether §34(l)(f) requires no more than the provision of any water or sewer services.
If the requirement of § 34(l)(f) is satisfied by the provision of "any” water or sewer services, a charter township fulfilling the other requirements set forth in § 34(1) which, for instance, provided water to one household in its territory would qualify for exemption from annexation. Thus, the provision of de minimus services would suffice for exemption, and the standard set forth in § 34(l)(f) would be no more than a pro forma requirement. While the Legislature could have imposed no more than a de minimus, pro forma standard as a prerequisite for exemption, we are unable to conclude that the Legislature did so.
Shelby has not advanced an acceptable explanation as to why the Legislature should have granted exemption from annexation to charter townships providing de minimus services, while leaving charter townships which do not meet that pro forma requirement subject to annexation. It is unlikely that the Legislature would create an incentive for the inefficient pro forma provision of de minimus services, particularly when one of the concerns about the bill was that it would encourage unwarranted incorporations by townships. See n 10. To interpret the standard as imposing purely pro forma requirements is also inconsistent with the substantive nature of other standards contained in § 34(1). It is particularly unlikely that the Legislature would require a [sic] certain population density as a prerequisite for exemption from annex ation, yet intend that the provision of water to one of those residents should be sufficient for exemption.
The legislative history of § 34 also indicates that the standards set forth in § 34(1) were intended to impose more than de minimus, pro forma standards. First, the addition of the § 34(1) requirements significantly reduced the House opposition to HB 4030. Forty-one representatives opposed the House version of the bill, which exempted all charter townships. 1978 House Journal 376-377. When HB 4030 returned to the House with the Senate amendment adding § 34(1), however, only six representatives voted against the bill. 1978 House Journal 1950. It is unlikely that the addition of these prerequisites for exemption from annexation would have so substantially reduced the House opposition to the bill if the standards set forth were merely pro forma, de minimus requirements.
Second, the comments of the only legislator to speak in opposition to the addition of § 34(1) to HB 4030 indicate that the standards were not understood as merely de minimus requirements. He stated that the proposed amendment adding § 34(1)
gut[s] the bill to the point that we don’t allow the people of a township to have the right to vote if they want to be annexed to a city unless they meet a [sic] certain criteria. Let me point out one of them. One of the criteria for the question on annexation is that the township provides water or sewer services by contract or otherwise. What we are, in effect, saying is that you townships that are big enough, or you have a municipality that’s adjacent to you that’s cooperative and willing to allow a contract, will be in a position of saying that we’re going to protect you from annexation. But to the smaller township or to the township that’s located adjacent to a city that says I don’t want to give you a contract for sewer or water, they are going to be thrown at the mercy of that city just by going out for land grab, for tax base as is happening now.
This amendment will take away the right of the people to vote in the smaller townships on annexation, and that’s what the whole issue is about— allowing the people in a township to be treated as, not as second class citizens, but as the same citizens as anybody else in this state. This is splitting the issue, most certainly, conceding to the larger townships, the more power townships, but we’re hurting the residents in the smaller townships who, perhaps, do not have that availability.
What House Bill No. 4030 said, as it was originally drafted and passed out of the committee, was that people in an area that was up for annexation would have the right to vote if they’re going to be annexed. Now, this puts on a whole series of or longer list of criteria they must meet to be qualified in order to be able to vote. [Statement of Senator Welborn, 1978 Senate Journal 1201.]
These remarks clearly imply that § 34(l)(f) imposes a substantive, and not a de minimus, requirement.
Third, an amendment of § 34(1) enacted the same year also strongly indicates that the standards set forth in that section impose substantive requirements. 1978 PA 591 amended the first sentence of § 34(1) to read:
A charter township existing on June 15, 1978, or a township incorporated after June 15, 1978 as a charter township that complies with the following standards, is exempt from annexation . . .
in order
to make clear that charter townships which ex isted at the time of the enactment of Public Act 242 are vulnerable to annexation only under the very specific conditions enumerated in the act and need meet no other criteria to enjoy the protection of that act. [House Legislative Analysis Section, Analysis HB 6708 (December 7, 1978).]
It is unlikely that the Legislature would have gone to the trouble of making if absolutely clear that existing charter townships need not meet the standards set forth in § 34(l)(a)-(f) in order to qualify for § 34(l)’s exemption if those standards had imposed merely de minimus, pro forma requirements.
Shelby points out that 1978 PA 591 also amended §34(l)(f), which as enacted by 1978 PA 242 had read "[provides water and or sewer services by contract or otherwise,” to read "[provides water or sewer services, or both, by contract or otherwise.” Shelby alleges that the original version of § 34(l)(f) had read "water and sewer services.” Shelby argues that
[t]he steady progression from use of the conjunctive term "and” in original House Bill No 4030 to the double use of the disjunctive "or” and "or both” in 1978 PA 591 is proof of a measured legislative intent to ease the standards needed to attain exemption from annexation.
Rather than supporting the construction of the statute Shelby urges, that the provision of "any” water or sewer services is sufficient to satisfy the statute’s requirements, this legislative history supports the opposite conclusion. There would have been no real need to reduce the standard from "water and sewer services” to "water and or sewer services” to "water or sewer services, or both,” if the requirement of providing water and sewer services were purely a de minimus, pro forma standard. Furthermore, that the Legislature reduced the substantive requirement does not indicate that it also transformed what were substantive requirements into purely pro forma standards. Instead, that the Legislature expressly acted to reduce the services a charter township had to provide in order to qualify for exemption, but did not in any way indicate an intention to move from substantive service requirements to purely pro forma service requirements, implies that it had no intention of doing so. Thus, this legislative history also supports the conclusion that the standard contained in § 34(l)(f) imposes more than a pro forma, de minimus requirement.
We consequently conclude that the lower courts erred in construing §34(l)(f) to require no more than the provision of any water or sewer services. The commission therefore did not exceed its statutory authority by not applying this interpretation of the statute to this case. The judgment of the circuit court setting aside the commission’s order on those grounds, and the Court of Appeals affir-mance, were thus error and must be reversed. We remand this case to the circuit court for consideration of Shelby’s other claims of error.
Williams, C.J., and Brickley and Cavanagh, JJ., concurred with Boyle, J.
Levin, J.
The question presented is whether the State Boundary Commission was authorized to order the annexation of approximately one-half square mile located in Shelby Township to the City of Utica. We would affirm the decision of the Court of Appeals which, in affirming the circuit court, held that amendments in 1978 of the charter township act precluded the State Boundary Commission from annexing to the City of Utica any property in Shelby Township because Shelby Township is a charter township that "[provides water or sewer services, or both.”
The opinion of the Court states that the circuit court construed the statute as requiring "no more than the provision of any water or sewer service”; "[sjince Shelby provided some water and sewer services” (emphasis supplied), the circuit court set aside the order of annexation entered by the boundary commission. The opinion of the Court acknowledges that the "Court of Appeals affirmed with the qualification that '[a] township that only provided token services would not be exempt under this statute since courts will depart from a literal construction of a statute when such a construction would produce absurd and unjust results.’ 129 Mich App 656.” (Emphasis added.)
Nevertheless, the opinion states that the Court of Appeals adopted the circuit court’s "any water or sewer service” construction "that § 34(l)(f) requires only that a charter township provide any water or sewer services. The Court of Appeals affirmed this construction of § 34(l)(f).” (Emphasis in original.) The Court then states the question before us to be
whether the lower courts correctly construed § 34(l)(f) to require only the provision of any water or sewer services. [Emphasis added.][ ]
The opinion of the Court continues with this analysis:
If the requirement of § 34(l)(f) is satisfied by the provision of "any” water or sewer services, a charter township fulfilling the other requirements set forth in § 34(1) which, for instance, provided water to one household in its territory would qualify for exemption from annexation. Thus, the provision of de minimis services would suffice for exemption, and the standard set forth in § 34(l)(f) would be no more than a pro forma requirement. While the Legislature could have imposed no more than a de minimis, pro forma standard as a prerequisite for exemption, we are unable to conclude that the Legislature did so. [Emphasis added.][ ]
The opinion of the Court concludes:
We consequently conclude that the lower courts erred in construing § 34(l)(f) to require no more than the provision of any water or sewer services. The commission therefore did not exceed its statutory authority by not applying this interpretation of the statute to this case. The judgment of the circuit court setting aside the commission’s order on those grounds, and the Court of Appeals affirmance, were thus in error and must be reversed. We remand this case to the circuit court for consideration of Shelby’s other claims of error. [Emphasis added.][ ]
Neither the circuit court nor the Court of Appeals construed the statute to mean that the provision of "any water or sewer service” to even "one household” would exempt a charter township from the operative effect of the provisions of the state boundary commission act.
Shelby Township provides more than thirty percent of its residents, 11,600 persons, with water service. This is clearly more than providing water and sewer service to one household and is clearly more than de minimis or pro forma service. The boundary commission found that Shelby Township could provide water service to eighty-five percent of the land area of the township through existing contracts and capacities.
There is no evidence that it would not be possible to provide water or sewer service to the 302 acres proposed for annexation. Perhaps it would be less costly for the City of Utica to provide such service than to extend water or sewer lines in Shelby Township to provide such service. The statute does not, however, require that water or sewer service be provided to all the land area in a charter township or to a. majority of the land area or some other fixed percentage of the land area.
To require that service be provided to the land area proposed to be annexed would in effect be to construe the statute as requiring that service be provided to all pertinent land areas, thereby making the generalized exemption from State Boundary Commission jurisdiction meaningless. It must be an unusual township that provides water and sewer service to all land areas in the township. The cost of building water and sewer lines is generally defrayed by special assessment against the property to be benefited, and such special assessments are not ordinarily levied, or such water or sewer lines laid, in sparsely populated areas. One must therefore expect that few, if any, charter townships organized after June 15, 1978, would be regarded as providing water or sewer service if the amendátory legislation is construed as requiring that service be provided to the land area proposed to be annexed.
The opinion of the Court apparently leaves open the question whether a charter township that provides water or sewer service to more than thirty percent of its residents is exempt from an annexation order of the State Boundary Commission. It reverses the decision of the Court of Appeals on a contrary-to-fact hypothesis, stating that service to "one household” would not be sufficient to exempt a charter township.
When this Court reverses the Court of Appeals, we are obliged to state a reason. The opinion of the Court fails to state a reason when it ignores, in stating the basis of reversal, the Court of Appeals acknowledgment that a township that only provides token service would not be exempt and states, rather, incorrectly that the Court of Appeals erred in requiring "no more than the provision of any water or sewer services.” The Court of Appeals affirmed the decision of the circuit court because Shelby Township provided "far more than token water and sewer services.”
No reliance can properly be placed on the construction of the State Boundary Commission under the circumstance that the purpose of the 1978 amendment is to reduce its power and that it opposed this legislation.
We would affirm the decision of the Court of Appeals because the provision of water service to more than thirty percent of the residents of a charter township constitutes providing water service within the meaning of the 1978 amendments of the charter township act.
Riley, J., concurred with Levin, J.
Archer, J., took no part in the decision of this case.
MCL 24.306(l)(b); MSA 3.560(206)(l)(b) provides:
Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
(b) In excess of the statutory authority or jurisdiction of the agency.
There is substantial confusion in the record about the amount of water and sewer services provided by Shelby. The sbc’s final findings of fact and order stated:
Shelby Township presently provides sewer service to approximately 6% of the township land area that contains 11,600 residents which is less than 16 of the township’s current estimated population of 38,000.
Shelby Township does not meet the standard of subsection (1)(F) of P.A. 591 of 1978, as it serves only about 6% of the township land area and less than \6 of the townships [sic] total population with sewer.
However, the parties agree that Shelby in fact provided 6% of its land area with sewer services, and 11,600 residents with water services. The evidence before the sbc so indicated, Response of Shelby Township to Questionnaire, and the comments of the commissioners at the May 2, 1979 adjudicative meeting indicate that the final sbc order’s reference to "sewer service” was a typographical error which contradicted the sbc’s actual findings.
The fixing of municipal boundaries is generally considered to be a legislative function. Village of Kingsford v Cudlip, 258 Mich 144 [241 NW 893 (1932)]; 37 Am Jur [Municipal Corporations, §§ 16, 23, 28, 29,] pp 633, 639, 645, 646 [56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§41-43, 55, 57-62, 65, 68, 70]. In this State the power vested in the legislature to provide for incorporation of cities and villages is in no way limited by Constitution (art 8, §§ 20, 21) (home rule amendment), and the power conferred on the legislature by the Constitution (art 8, §20) to provide by general law for incorporation of cities and villages includes change of boundaries when needed. Village of Kingsford v Cudlip, supra. In the absence of constitutional inhibition the legislature may submit the determination of boundaries to courts, or to municipal authorities, or to the qualified electors. [Prosecuting Attorney v Rogers Twp, 313 Mich 1, 9-10; 20 NW2d 787 (1945).]
The changing of the boundaries of political divisions is a legislative question, and the power to annex territory to municipalities has often been delegated to boards of supervisors or other public bodies. [Oakman v Wayne Supervisors, 185 Mich 359, 362; 152 NW 89 (1915).]
The United States Supreme Court has held:
Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State. Neither their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the State within the meaning of the Federal Constitution. The State, therefore, at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may by such changes suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right by contract or otherwise in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the State and those who legislate for the State are alone responsible for any unjust or oppressive exercise of it. [Hunter v Pittsburgh, 207 US 161, 178-179; 28 S Ct 40; 52 L Ed 151 (1907).]
MCL 123.1008(1); MSA 5.2242(8X1) provides:
The commission shall review proposed incorporations considering the criteria established by section 9.
MCL 123.1009; MSA 5.2242(9) provides:
Criteria to be considered by the commission in arriving at a determination shall be:
(a) Population; population density; land area and land uses; assessed valuation; topography, natural boundaries and drainage basins; the past and probable future urban growth, including population increase and business, commercial and industrial development in the area. Comparative data for the incorporating municipality, and the remaining portion of the unit from which the area will be detached shall be considered.
(b) Need for organized community services; the present cost and adequacy of governmental services in the area to be incorporated; the probable future needs for services; the practicability of supplying such services in the area to be incorporated; the probable effect of the proposed incorporation and of alternative courses of action on the cost and adequacy of services in the area to be incorporated and on the remaining portion of the unit from which the area will be detached; the probable increase in taxes in the area to be incorporated in relation to the benefits expected to accrue from incorporation; and the financial ability of the incorporating municipality to maintain urban type services in the area.
(c) The general effect upon the entire community of the proposed action; and the relationship of the proposed action to any established city, village, township, county or regional land use plan.
The bill would have amended § 34 to provide:
(1) Except as provided in subsection (2), a portion of a charter township shall not be annexed to a city or village, but an entire charter township may be annexed to a city or village. An entire charter township or a portion of a charter township may incorporate as a city or village or may consolidate with another charter township or any other township, city, or village, with the approval of a majority of the township board and a majority of the electors in the charter township.
(2) Notwithstanding (1), a portion of a charter township which is contiguous on all sides with a city or village may be annexed by that city or village with the approval of the majority of the electors in that portion of a charter township. [HB 4030 (January 25, 1977).]
As reported from the Committee on Towns and Counties, the following would have been added to HB 4030:
(3) Notwithstanding subsections (1) and (2), a portion of a charter township contiguous to a city may be annexed to that city upon the filing of a petition with the county clerk by 20% of the registered voters in the area to be annexed or by a majority vote of the township board of the charter township, and approval by a majority of the qualified and registered electors voting on the question in the city to which the portion is to be annexed, and the township from which a portion is to be annexed, each counted separately.
(4) If a referendum petition is filed pursuant to subsection (3), the county clerk, after determining the validity of the petition, shall order a referendum on the question of annexation. This referendum shall occur within 1 year after the validation of the petitions or the vote of the township board. The referendum shall be held at the first primary or general election held after the validation of the petition or the vote of the township board, or under section 639 of Act No. 116 of the public acts of 1954, as amended, being section 168.639 of the Michigan Compiled Laws. [1977 House Journal 354, as adopted by the House, 1977 House Journal 511.]
Proponents of the bill argued:
The very fact that a township has taken the initiative to become a charter township indicates that thought and effort have been put into the long range planning for the development of the township. Many charter townships are already largely developed and have water, sewer, and other municipal utility systems either planned or already in operation. In fact, many persons involved with local government view charter townships as "proto-cities” that, given the opportunity to develop properly, eventually will incorporate as home rule cities. It has been shown that townships that have remained intact (i.e., 36 square miles) are much more successful when incorporated than townships that have been fragmented by annexation. When annexation deprives a township of its choice portions, not only is long range planning thwarted, but with the loss of tax base, the township loses the ability to supply needed services. Thus, its future as a successful home rule city is destroyed. [House Legislative Analysis Section, First Analysis HB 4030 (March 3,1977).]
This language was amended to read "the portion of the township which is to be annexed,” 1977 House Journal 682 (amendment proposed), 1978 House Journal 341 (amendment adopted). As enacted in 1978 PA 242, subsection (3) became § 34(5) and provided:
(5) Notwithstanding subsections (1) and (3), a portion of a charter township contiguous to a city or village may be annexed to that city or village upon the filing of a petition with the county clerk which petition is signed by 20% of the registered voters in the area to be annexed and approval by a majority of the qualified and registered electors voting on the question in the city or village to which the portion is to be annexed, and the portion of the township which is to be annexed, with the vote in each unit to be counted separately. [Emphasis added.]
This language would appear to mean that, with respect to annexations initiated as provided in this § 34(5), township electors are not permitted to vote on the question of annexation at all.
Before the changes in annexation procedures effected by 1970 PA 219, township electors were permitted to vote on all annexations of their territory by villages, and by cities with populations of over 15,000 persons. MCL 78.5, 117.9; MSA 5.1515, 5.2088. The village or city and township votes were counted collectively. While it is possible that the township electors were consequently often outvoted by the more populous cities or villages, townships were able to participate in the referendum on the annexation question. With the changes effected by 1970 PA 219, townships on the one hand lost the right to vote on smaller annexations, but on the other hand gained the right to have their votes counted separately in — and thus to veto — larger annexations. Furthermore, townships gained the opportunity to present their case to the commission, which could veto any annexation. In comparison, the language of §34(5) on its face would seem to reduce, as compared to townships and charter townships subject to MCL 117.9; MSA 5.2088 procedures, the protection against, and participation in decision-making on, annexations for charter townships which qualify for "exemption” pursuant to § 34(1).
The meaning and effect of MCL 42.34(5); MSA 5.46(34X5) is not before us and has not been briefed or argued. We thus express no opinion on the section’s meaning or effect. We merely note that its language makes understanding the legislative intent in enacting 1978 PA 242 difficult. See, e.g., Statement of Representative DeStigter, 1978 House Journal 377 (opposing HB 4030 with the amended § 34[5] language on the grounds that the bill would "forever seal[]” city boundaries); Statement of Senator Welbom, 1978 Senate Journal 1200-1201 (opposing the addition of § 34[1] to HB 4030 on the grounds that it would "gut” the bill by depriving smaller charter township electors of the right to vote on annexations).
Usually, even in charter townships, only a small portion of the township is highly developed and ready for incorporation. It may be many years before the remainder of the township is ready for incorporation. The restriction on annexation proposed by the bill could have 2 undesirable effects. On the one hand, it could delay the incorporation of a highly developed area which needs, and could support, city services. Conversely, if the entire township is incorporated or annexed, and only a small area is developed, the residents in the undeveloped areas of the township would be forced to pay city taxes, even though city utilities and other services may not be available in the outlying areas for several years. [First Analysis of HB 4030, House Legislative Analysis Section (March 3,1977).]
Some representatives also appear to have been concerned that such protection against annexations would be abused:
Eliminating enclaves that are receiving, without paying for[,] city services, was one strong reason why the Boundary Commission came into existence. This amendment would give unilateral veto power over annexations which are reasonable and have been so determined by the Boundary Commission to these small, illogical areas. [Statement of Representative McNamee, 1977 House Journal 943.]
Opponents were concerned that HB 4030 would create an incentive for unsuited townships to incorporate:
There are, at present, 20 charter townships in the state. However, Public Act 90 of 1976 (House Bill 5193) enacted provisions which would make it much easier for townships with populations over 5,000 to become charter townships. (According to the 1970 census, there are 124 townships with populations of 5,000 or more.) Some persons fear that the ease of achieving charter status provided by Public Act 90 coupled with the protection from annexation which this bill would provide would encourage many general law townships to become charter townships prematurely, long before the level of development in the township would call for such a move. Although an area that wishes to incorporate as a city or village has to meet certain requirements, including density requirements, and gain the approval of the State Boundary Commission, there is no such state review when a general law township wishes to move to charter status. Further, it should be pointed out that although the 36 square mile township is typical in southern Michigan, north of the Bay City line many townships are much larger, up to nearly 150 square miles. By virtue of this large land area, these townships may have more than 5,000 inhabit ants, even though the population density is low and the township is largely rural. It would he an absurdity for such townships to move to charter status because of the impetus this bill would provide. [First Analysis of HB 4030, House Legislative Analysis Section (March 3,1977).]
Indeed, some opponents were concerned, not only that the bill would create an incentive for unjustified township incorporations, but also that the bill would in fact force townships to incorporate.
I have 3 charter townships in my district. If House Bill No. 4030 passes, half the boundary of the City of Holland, and half the boundary of the City of Zeeland would be forever sealed by Holland Charter Township. The City of Hudsonville is almost entirely surrounded and would be locked in by Georgetown Charter Township.
If this bill passes, other townships would be forced to defensively incorporate as a charter township in order to preclude those cities from expanding in their direction. [Statement of Representative DeStigter, 1978 House Journal 377.]
Opponents of HB 4030 argued that the bill was unnecessary because the new authority of the commission over annexation resolved the previous problems:
Opponents of the bill contend that the problems caused by the annexation of portions of charter townships occurred before the Boundary Commission had authority over such matters, and believe that the commission has taken the deleterious effects of annexation into account and has acted to protect charter townships if a proposed annexation would impair the ability of the township to incorporate at a future date. [House Legislative Analysis Section, First Analysis HB 4030 (March 3, 1977).]
Indeed, some of the opposition to HB 4030 appears to have been, at least partially, based on the belief that the compromise achieved in 1970 should not so soon be abandoned. For instance, one representative explained that he voted "no” on an amendment to HB 4030 which was supportive of the goals of the bill as originally introduced
because, at least as to charter townships, it destroys the reasonable approach to annexation under the State Boundary Commission’s supervision.
It substantially destroys the intent and purpose of the 1970 compromise legislation (Act 219, PA 1970) which changed city annexation procedures by eliminating the election requirement in the case of small annexations. [Statement of Representative Brotherton, 1977 House Journal 942; see also Statements of Representatives Anderson and Ryan, id.]
Proponents of HB 4030, however, believed that the commission’s authority provided insufficient protection for townships:
[S] ome persons believe that protection for townships should be very clearly spelled out in the statute.
Some persons believe that the State Boundary Commission has not always been properly sensitive to the needs of the townships, and further believe that there are not sufficient safeguards in the law to ensure that the commission will always protect township interests in the future. They contend that the bill is not so much a matter of usurping the authority of the commission as of giving the commission guidelines to follow when a proposed annexation would affect a charter township. [House Legislative Analysis Section, First Analysis HB 4030 (March 3,1977).]
While one proponent of the bill argued that the voting powers set forth in subsection (3) were justified because "the right of the people to vote ... on annexations ... [is] what the whole issue is about— allowing the people in a township to be treated as, not as second class citizens, but as the same citizens as anybody else in this state[,]” statement of Senator Welborn, 1978 Senate Journal 1201, opponents of the bill argued that such a township "right to vote” actually had the effect of giving townships the power to veto annexations:
[T] he provision allowing for annexation of a portion of a charter township if voters in both the township and the city approve is deceptive since the township, in effect, has veto power over the annexation. . . . [T]he result of such a provision is to effectively prevent such annexations. [First Analysis of HB 4030, House Legislative Analysis Section (March 3,1977).]
Thus, opponents argued, subsection (3) of proposed HB 4030 essentially gave charter townships a veto power over all annexations of their territory, even in cases in which the majority of electors in the city seeking to annex, and in the territory proposed to be annexed, voted in favor of the annexation.
This charter township veto power over annexations appears to have been a major source of opposition to the bill. Representative Brother-ton, for instance, explained his "nay” vote on an amendment to HB 4030 which was supportive of the original goals of the bill as follows:
House Bill No. 4030 proposes to change city annexation procedures by giving charter townships a power that the Legislature refused to give all townships in 1970, the complete veto power over all annexations. I believe the present annexation law is reasonable and is much better than what we had before 1970. For this reason, I voted no on this amendment to House Bill No. 4030. [1977 House Journal 942-943; see also Statements of Representatives Anderson, Ryan, and McNamee, id.]
The view of some opponents that a return to the referendum process for annexations was undesirable was related to the desire to uphold the 1970 compromise.
[A]s a member of the House since 1955, I know of the efforts to provide more rational municipal boundary adjustment procedures. The first step was taken in 1968 when the State Boundary Commission was created.
I well remember the lengthy stalemate in the House in 1970 on a bill to change the Home Rule City [sic] Act annexation election procedures. Its original purpose was to give the township electors a separate veto vote. The bill was amended to reflect a compromise that was worked out by the Legislature to resolve many inequities caused by annexation elections. The purpose of the compromise was to eliminate annexation elections entirely in small annexations and to give townships the veto power through referendum elections in large annexations.
The compromise which became Act 219, PA 1970, was not perfect. A compromise is seldom perfect. Our compromise, for example, could have given the County Boards of Commissioners, instead of the Boundary Commission, the power to arbitrate and decide small annexations. We could have set a percentage of State Equalized Value, rather than settling on 100 persons in the annexation area[,] as the definition of a small annexation.
The important fact, however, is that, after lengthy deliberation and debate, the Legislature established a significant public policy when it changed the election requirements on annexation questions. The Legislature made, I believe, a wise and conscious decision to remove certain kinds of annexations from the emotional arena of the ballot box.
The Legislature in 1970 decided to remove certain annexations from the election process. I oppose a retreat from that decision. [Statement of Representative Ryan, 1977 House Journal 942.]
Indeed, one representative characterized the bill as "a ridiculous step backwards” on these grounds:
I have been in the Legislature since 1965 and have gone through the battles over annexation bills on this floor as have other members who were here during the 1960’s. I think we should retain and improve rather than start to destroy the more rational approach the Legislature made possible when we created the Boundary Commission in 1968 and changed city annexation procedures in 1970. We have moved partly away from the old "battle at the ballot box” election procedure, at least as to "small” annexations which are now subject to the final authority of the Boundary Commission and are not subject to referendum.
We have laws authorizing county health departments to order polluting septic tanks sealed and ordering the condemnation of properties that are polluting. These orders are not subject to popular referendum. We have laws authorizing the Water Resources Commission to order townships to proceed to install expensive sewer systems and these orders are not subject to referendum. In fact these orders can be enforced in court by court-ordered general obligation bonds without a vote of the people.
But when it comes to an order of the Boundary Commission for the annexation of an area to a city which could provide the services needed to correct these serious problems, that order (if it involves an area where more than 100 people reside) is subject to veto by referendum both in the area as well as in the balance of the township.
House Bill No. 4030 now proposes to take the ridiculous step backwards of allowing local referendums also on Boundary Commission orders involving areas of less than 100 people. This doesn’t make sense to me.
We ought to be making improvements in our annexation laws rather than destroying the more sensible system we finally adopted in 1970. For this reason I voted against House Bill No. 4030. [Statement of Representative DeStigter, 1978 House Journal 377.]
As finally enacted, the bill permitted annexations from charter townships qualifying under § 34(1) in the following circumstances:
(2) Notwithstanding subsection (1), the state boundary commission may, under procedures initiated and conducted pursuant to section 9 of Act No. 279 of the Public Acts of 1909, being section 117.9 of the Michigan Compiled Laws, order a portion or portions of a charter township to be annexed as necessary to eliminate free standing islands of the township completely surrounded by an annexing city, or to straighten or align the exterior boundaries of the city or village in a manner that the charter township and city or village contain uniform straight boundaries wherever possible.
(3) Notwithstanding subsection (1), a portion of a charter township which charter township is contiguous on all sides with a city or village may be annexed by that city or village with the approval of a majority of the electors in that portion of a charter township.
(4) Notwithstanding subsection (1), if a qualified elector does not reside in the territory proposed to be annexed which is contiguous to the city or village other than the 1 or more persons petitioning, or if a petition signed by 1 or more persons, firms, corporations, the United States government, or the state or any of its subdivisions which collectively hold the recorded legal title to more than Vi of the area of the land in the territory to be annexed is filed with the city or village and with the township board of the charter township in which the territory is situated, the annexation may be accomplished by the affirmative majority vote of the city council or village board of the city or village and the approval of the charter township board of the township.
(5) Notwithstanding subsections (1) and (3), a portion of a charter township contiguous to a city or village may be annexed to that city or village upon the filing of a petition with the county clerk which petition is signed by 20% of the registered electors in the area to be annexed and approval by a majority of the qualified and registered electors voting on the question in the city or village to which the portion is to be annexed, and the portion of the township which is to be annexed, with the vote in each unit to be counted separately.
(6) If a petition is filed pursuant to subsection (5), the county clerk, after determining the validity of the petition, shall order a referendum on the question of annexation. This referendum shall occur within 1 year after the validation of the petitions. The referendum shall be held at the first primary or general election held in that county not less than 60 days after the validation of the petition, or under section 639 of Act No. 116 of the Public Acts of 1954, as amended, being section 168.639 of the Michigan Compiled Laws.
(7) A village having a population of 4,200 or more shall not be annexed to a contiguous unit of government unless a majority of the qualified and registered electors residing within the village vote in favor of the annexation at an election held pursuant to Act No. 116 of the Public Acts of 1954, as amended, being sections 168.1 to 168.992 of the Michigan Compiled Laws.
(8) The common boundary of a charter township and a city or village may be adjusted by resolution approved by a majority of each of the respective governing bodies after the governing bodies give 90 days notice to property owners in the area proposed for the boundary adjustment, and the governing bodies conduct a public hearing on the proposed boundary adjustment. [MCL 42.34(2X8); MSA 5.46(34)(2)-(8), as amended by 1978 PA 591.]
It provided:
(1) Any charter township existing on the effective date of this act and any township thereafter incorporated as a charter township that complies with the following standards, shall be exempt from annexation to any contiguous city except as provided in subsections (2), (3), (4), (5), (6), (7), and (8):
(A) Has a state equalized valuation of not less than $25,000,000.
(B) Has a minimum population density of 150 persons per square mile to be determined by the secretary of state by dividing the most recent regular or special census of population by the number of square miles then under the jurisdiction of the charter township not to include the population or territory within the jurisdiction of an incorporated village.
(C) Provided fire protection service by contract or otherwise.
(D) Is governed by a comprehensive zoning ordinance or master plan.
(E) Provides solid waste disposal services to township residents, within or without the township, by contract, license or municipal ownership.
(F) Provides water and or sewer services by contract or otherwise.
(G) Provides police protection through contract with the sheriff in addition to normal sheriff patrol or through its own police department. [1978 Senate Journal 1196,1200.]
Section 34(1), as enacted by 1978 PA 242, was amended the same year by 1978 PA 591. Pertinent changes made by 1978 PA 591 are discussed below.
The Court of Appeals did not hold that § 34(l)(f) required the provision of "more than token” water or sewer services, but instead held that the courts would not apply the statute "literally” if only token services were provided. Thus, the Court of Appeals adopted the circuit court’s interpretation of the statute as requiring only the provision of any water or sewer services.
While the Senate made some other amendments to the House version of the bill, including the additions of §§ 34(4) and (8), see 1978 Senate Journal 1043, 1196, 1200, the addition of § 34(1) appears to have been the major, most important change.
The commission is created under 1968 PA 191, MCL 123.1001 et seq.; MSA 5.2242(1) et seq.
1978 PA 242 and 591, amending MCL 42.34(1); MSA 5.46(34)(1).
MCL 42.1; MSA 5.46(1).
MCL 42.34(1)®; MSA 5.46(34)(1)®.
Ante, p 55.
Id.
Ante, p 56.
Ante, p 72.
Id.
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Brickley, J.
This matter poses the following questions: whether the circuit court had jurisdiction to decide the arbitrability of an assistant prosecuting attorney’s (apa) removal from office under a collective bargaining agreement entered into by the county and the union without the participation of the prosecuting attorney; whether the prosecutor is a coemployer with the county; whether the public employment relations act affects the power of the prosecutor under MCL 49.41-49.43; MSA 5.801-5.803, the statute which provides that an apa shall hold office "during the pleasure of the prosecuting attorney appointing him”; and, assuming the prosecutor was a coem-ployer, whether that status was waived.
We hold there was jurisdiction in the circuit court to determine the threshold question— whether the prosecutor was a party to the arbitration clause of the contract. We further find that the prosecutor was a coemployer, that the Court of Appeals properly found no conflict between the pera and the prosecutors’ appointment/tenure statute, that the prosecutor did not waive his authority to bargain on the tenure of his appointees, and that, accordingly, the prosecutor was not required to arbitrate his removal of an apa under the collective bargaining agreement between the county and the union. Except as to the finding that the public employer did not commit an unfair labor practice, we reverse the judgments of the Court of Appeals.
i
These consolidated cases, involving essentially the same dispute between the same parties, have simultaneously wended their way here through different forums. The second and final Court of Appeals opinion contained a clear and balanced summary of the factual and legal history of the case which we set forth.
The facts in this case are largely uncontro-verted. On July 27, 1976, [plaintiff union] was certified in merc Case No. R 76E-282 as the exclusive representative of the general county bargaining unit, including professional and technical employees.
On April 28, 1977, the assistant prosecuting attorneys in St. Clair County wrote a letter to the union representative indicating that they were not "includable among your county workers because, among other things, we have duties and responsibilities of a different nature from those of other county employees.” Accordingly, the assistant prosecuting attorneys requested to be excluded from union representation.
A similar letter was sent to the county administrator, advising him that these attorneys did not desire to be represented by the union and that the union had no authority to negotiate on their behalf. On May 19, 1977, a follow-up letter was sent to the union by the assistant prosecuting attorneys, noting that they had not received any response to their previous letter and requesting that the union take whatever steps were necessary to ensure that they would no longer be considered a part of the union bargaining unit.
On October 3, 1977, the union was again certified as the general county bargaining unit under merc Case No. R 778-390, including professional and technical employees and not excluding assistant prosecuting attorneys. Included in the list of eligible voters prepared by the county for the 1977 union election were the names of the assistant prosecuting attorneys. Pursuant to the 1977 certification, a collective-bargaining agreement covering the period from January 1, 1978, to December 31, 1980, was negotiated between the union and the county.
On January 3, 1978, the assistant prosecuting attorneys and clerical personnel of the prosecuting attorney’s office filed a petition for election with merc requesting that the union be decertified as to them. On May 4, 1978, a letter was written to the county personnel officer and to the union representatives notifying them that the assistant prosecuting attorneys were not and would not be part of the union bargaining unit. In addition, the letter indicated that they intended to contest unionization by filing suit for ex parte injunctive relief in the circuit court.
On May 16, 1978, the assistant prosecuting attorneys, clerical staff, and office investigator filed suit against the county, the county commissioners, the county administrator, and the union. The complaint reiterated the previous claim that the assistant prosecutors did not wish to be represented by the union and that each of them was an employee of the then county prosecutor, Peter E. Deegan, serving at this pleasure.
Based upon the allegations in this complaint, then Circuit Court Judge Halford Streeter granted the plaintiffs’ motion for a preliminary injunction and temporary restraining order to prevent the collection of union dues or service fees from the named plaintiffs. The injunction effectively excluded the assistant prosecuting attorneys from the bargaining unit since, as the union representative testified, in order to be a member in good standing of the union, it was necessary to be a dues-paying member.
In August of 1978, the assistant prosecuting attorneys reversed direction, decided to become part of the union bargaining unit and filed a grievance, claiming that they were covered by and entitled to wage increases under the 1978-1980 collective-bargaining agreement between the union and the county.
The county personnel officer, Terry Pettee, sent a letter to the union representative advising that the county would remain neutral in regard to the assistant prosecuting attorneys’ grievance. The county offered to provide full retroactive pay to the named employees, should it be determined that they were members of the bargaining unit, but only if the attorneys withdrew "the matter from further litigation.” The assistant prosecuting attorneys accepted the county’s offer and voluntarily dismissed the circuit court action.
On June 11, 1979, the county sent a letter to the union acknowledging that the assistant prosecuting attorneys were now a part of the union bargaining unit. The letter, however, indicated that there were some areas of the collective-bargaining agreement which had questionable application to the assistant prosecutors because of their professional status. Specifically, the letter noted that the discharge provisions were inapplicable because of the statute providing that assistant prosecutors serve at the pleasure of the county prosecuting attorney. According to the union representative, the position taken in this letter was never disputed or responded to by the union. Similarly, the county never proposed amending the contract to include special language regarding the assistant prosecuting attorneys.
On August 13, 1980, prior to expiration of the 1978-1980 collective-bargaining agreement, a memorandum was sent to department heads informing them that the bargaining agreement would expire at the end of 1980 and that a meeting had been scheduled so that the department heads could express their concerns regarding negotiations for a new agreement. In response, Prosecutor Deegan sent a letter to the personnel office indicating that he intended to take an active part in the negotiations which affected the employees of his office. The prosecutor also sent a letter to the local union representative in which he again announced his intention to take an active part in the upcoming negotiations. He, however, stated that he was not bound by the then-current collective-bargaining agreement because he "took no part in its formation, negotiation or execution.”
On December 31, 1980, a new collective-bargaining agreement had not been reached, so an agreement was made extending the formal [sic] union contract on a day-to-day basis. Robert Cleland took office as St. Clair County Prosecuting Attorney on January 1, 1981, when the contract day-to-day extension was in effect. On February 12, 1981, Cleland wrote to the county administrator, advising that no one had the authority to negotiate on his behalf and that, as prosecuting attorney, he intended to retain all of his statutory prerogatives. Nevertheless, he provided that he did not have any objection to negotiations being undertaken in his behalf with respect to wage scales and other financial matters. At the county’s request, he did not, however, assert his right to exercise his statutory powers as prosecutor until the negotiations on the new bargaining agreement were concluded. In accordance with the county’s request, the prosecutor waited until a tentative agreement had been reached between the county and the union before advising the union of his objections to the county’s negotiations on his behalf as to nonfinancial matters.
In a letter dated March 11, 1981, he informed the union that "[t]he county administration does not now have, nor has it ever had, permission or authority from me, or my predecessor, to negotiate or bargain or agree upon any issue, with the employees of my office, which touches upon the hiring, discipline, discharge, or conditions of work of my office.” The letter further provided that he did not object to financial matters "being resolved by the collective-bargaining undertaken by the county.” The 1981-1982 collective-bargaining agreement was ratified on March 12, 1981. The union does not admit receiving the prosecutor’s letter until some time after that date.
On January 8, 1981, Assistant Prosecuting Attorney Sharon Mormon Parrish filed a grievance against Prosecutor Cleland for having terminated her employment on January 1, 1981, without just cause. In her February 23, 1981, demand for arbitration, she claimed that she was entitled to arbitration under the 1980 collective-bargaining agreement. Following her demand for arbitration, Prosecutor Cleland and the county filed suit in the St. Clair County Circuit Court requesting a permanent injunction to restrain the use of arbitration by Assistant Prosecutor Parrish and the union. In that case, plaintiffs also sought a declaratory judgment regarding the employment status of Assistant Prosecutor Parrish.
On November 5, 1981, visiting Circuit Court Judge Martin E. Clements rendered an opinion recognizing that the question before the court was one of arbitrability. He noted that whether a dispute is arbitrable is a question for the court, but that the inquiry was confined to ascertaining whether the parties seeking arbitration are making a claim which, on its face, is governed by the contract. After deciding that, on its face, there is no question as to the applicability of the contract provisions regarding arbitration to assistant prosecutors, he determined that Prosecutor Cleland could legally reserve unto himself the right under the statute to discharge assistant prosecutors at will, whether or not any provisions to the contrary were contained in the collective-bargaining agreement.
The trial court further held that because the prosecutor did not negotiate with the bargaining agent and did not consent to the contract provisions regarding employee tenure, the arbitration provisions of the collective-bargaining agreement did not bind the prosecutor. Accordingly, the trial court ruled that neither the union nor the assistant prosecutor, Sharon Parrish, was entitled to arbitration. On December 14, 1981, an order was entered enjoining "all arbitration proceedings concerning the termination or discharge of Sharon Mormon Parrish from her employment.”
The judgment of the trial court was reversed by this Court in Cleland v American Federation of State, County & Municipal Employees, AFL-CIO, an unpublished per curiam opinion released June 29,1983, Docket No. 61665. We held that:
"When the parties to a collective bargaining agreement have agreed to submit questions on the document’s interpretation to arbitration, a court’s initial review is merely for the purpose of determining whether the party seeking arbitration is making a claim which on its face is governed by the agreement. . .
"The union claimed in this case that the county and the prosecuting attorney had violated a specific provision of the contract in terminating an assistant prosecutor’s employment without just cause. The county took the position that it had not violated that clause because the prosecuting attorney intended to retain his statutory power to fire at will and without just cause notwithstanding the collective bargaining agreement’s just-cause provision. There was, therefore, a dispute over whether the discharge was 'improper,’ and the contractual provision outlining a specific grievance procedure, leading to binding arbitration, should have been followed. . . . The circuit court was without jurisdiction to rule on the merits of the parties’ dispute.
"We hold that whether the prosecutor relinquished, waived, or otherwise lost his statutory authority to fire at will as a result of the bargaining process and agreement is a proper question for arbitration.” (Citations omitted.)
An application for leave to appeal from our decision reversing the trial court has been filed in the Supreme Court, which application has not been ruled upon as of this writing. Consequently, for purposes of this opinion, we treat our decision under Docket No. 61665 as being the law of this case.
In addition to the demand for arbitration filed under the 1980 collective-bargaining agreement, the union filed a charge against defendant county for an alleged unfair labor practice under § 10 of PERA.
The original charge was filed on June 3, 1981, claiming that termination of Sharon Mormon Parrish’s employment was a result of or in retaliation for her exercise of rights granted under pera. She apparently believed she had been fired because of an alleged active role on behalf of herself and fellow employees regarding various employment issues.
An amended charge was filed on September 1, 1981, claiming that in addition to the original charge the county had repudiated its negotiated collective-bargaining agreement with the union insofar as it related to employees in the prosecutor’s office. Because the county allegedly refused to acknowledge the contract provisions regarding discipline, discharge, arbitration, and overtime pay, the union claimed that the county was in violation of § 10(l)(e) of pera.
On September 3, 1982, a hearing referee filed a decision and recommended order. It must be noted that at the time he filed his decision this Court had not yet reversed the circuit judge’s judgment. The hearing referee did not accept the determination of the circuit judge, but largely acted in disregard of and as though he were not bound by the circuit judge’s ruling. Whether or not he was correct on the merits in his disagreements with the circuit judge’s conclusions, he seems to have missed the fact that the county and the prosecuting attorney were not in a position to make independent determinations of the merits of the circuit judge’s judgment and to decide whether or not they would obey. Consequently, until June 29, 1983, when we reversed the circuit court, we believe that the county and the prosecuting attorney for St. Clair County were bound by and entitled to rely on the judgment of the circuit court.
On February 23, 1983, before this Court reversed the circuit court’s judgment, merc issued its decision and order, largely affirming the decision and recommended order of the hearing referee, albeit in a more temperate fashion than by the latter. Merc held:
1. The circuit court’s judgment was not res judicata with respect to the union’s charges before MERC.
2. The interpretation of the prosecutor’s removal statute made in the circuit court’s judgment was not binding on merc.
3. Merc does not purport to decide whether the grievance of the assistant prosecutor, Sharon Parrish, is arbitrable.
4. The county and the prosecutor must recognize and comply with both collective-bargaining agreements (one retroactive to January 1, 1981, and the other which, by its terms, expired December 31, 1980), a provision of each being arbitration of grievances (thus, requiring arbitration of the assistant prosecutor’s grievance).
5. The prosecutor is not a joint employer with the county.
6. The alleged failure of Prosecutor Cleland to give more timely notice of his intention to keep the prosecutor removal statute as a working part of any collective-bargaining agreement "affirmatively subverted good faith bargaining.”
7. The county violated § 10(l)(e) of pera. [Michigan Council 25, AFSCME v St Clair Co, 136 Mich App 721, 726-734; 357 NW2d 750 (1984).]
II
This second Court of Appeals panel then affirmed in part and reversed in part the merc decision. In addition to its findings on the major issues, the Court of Appeals noted that the question whether the merc had been barred by the circuit court’s injunction was rendered moot by its subsequent reversal.
Most importantly and central to the resolution of this case, the Court of Appeals, disagreeing with the merc, held that the prosecutors’ statute, MCL 49.41-49.43; MSA 5.801-5.803 (the appointment/ tenure statute), gives the prosecutor sufficient employment powers to make him a coemployer with the county. However, it held that these rights are "subject to the collective-bargaining requirements of PERA.”
The Court of Appeals further found that Prosecutor Deegan had not waived his rights because of his notification to the union of his intention to protect his statutory right, as well as the fact that "the assistant prosecuting attorney joined the union bargaining unit after the 1978-80 contract was already in effect.” Prosecutor Cleland’s status, however, was deemed to be a different matter. The Court found that the merc did not err in finding that Prosecutor Cleland had failed "to actively participate in the collective bargaining with the union” and that he thereby waived his coemployer rights to bargain over his statutory prerogatives concerning the tenure of his appointees.
Although the 1981-1982 contract was not ratified until after she was discharged, the contract was deemed to apply retroactively so that it was in effect as of January 1, 1981. Since the 1981-1982 contract was in effect on January 1, 1981, the date Sharon Parrish was discharged, Prosecutor Dee-gan’s reservation of rights under the previous contract is irrelevant. [Michigan Council 25, supra, pp 742-743.]
Finally, the Court of Appeals reversed the merc finding that the defendant county had engaged in bad-faith bargaining. The Court noted that that specific charge had not been brought by the union and the fact that the county and the prosecutor were caught between conflicting judgments of a circuit court and an merc hearing referee.
When the first Court of Appeals decision was appealed in this Court, we delayed consideration pending the second decision. Leave to appeal was granted, and the two cases were consolidated. 422 Mich 856 (1985).
iii
The first issue in the resolution of these cases is the jurisdiction of the circuit court to determine the arbitrability of this apa termination; the second is the status of a prosecutor as an employer and how it is affected by the pera; and the third is whether the prosecutor waived his employer status and is thereby bound by the tenure provisions of the collective bargaining agreement.
A
The appellant county argues that "[t]he Court of Appeals . . . never addressed the issue of whether the prosecutor was bound by the contract.” It maintains that the issue is "whether there was an enforceable agreement to arbitrate. Both the Courts of this State and the Federal Courts have determined [that] the existence of an enforceable agreement to arbitrate is a matter for the courts.”
The general rule regarding jurisdiction on arbitrability questions was enunciated in KalevaNorman-Dickson School Dist v Kaleva-Norman-Dickson Teachers’ Ass’n, 393 Mich 583; 227 NW2d 500 (1975), cited by the circuit court and both parties. In that case, a teacher’s grievance arbitration had been enjoined by the circuit court, which found that the claim was not arbitrable under the contract. The issue was "the extent of a court’s inquiry when a party to a collective bargaining agreement containing an arbitration clause seeks to enjoin arbitration of a grievance involving an issue of contract interpretation on the ground that the dispute is not within the agreement to arbitrate.” Kaleva, supra, p 586. Quoting United Steelworkers of America v American Mfg Co, 363 US 564, 568; 80 S Ct 1343; 4 L Ed 2d 1403 (1960), this Court stated:
[W]hile the question whether a dispute is arbi- trable is for a court, the judicial inquiry "is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. [Kaleva, supra, p 591. Emphasis in original.]
Quoting again from Steelworkers, the Kaleva Court emphasized:
"An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” . . . Absent an "express provision excluding [a] particular grievance from arbitration” or the "most forceful evidence of a purpose to exclude the claim,” . . . the matter should go to arbitration .... [Id., p 592. Emphasis supplied in Kaleva.]
The school board’s claim in that case was similar to the county and the prosecutor’s argument in the instant case. The board maintained that it was not asking the Court "to interpret or apply any provision of the [collective bargaining] agreement because [the teacher’s] claim 'on its face’ is not governed by the agreement but by the reserved rights of the board, including its rights under the teachers’ tenure act." Id., p 591 (emphasis added). This Court found that the teacher’s "claim is not based on the teachers’ tenure act but on the collective bargaining agreement. Whether she has a valid claim is 'governed by the contract.’ ” Id. (emphasis in original).
Because the school board in that case did not "specifically reserve” from arbitration claims arising under the "discharge for just cause only” clause of the collective bargaining agreement, this Court found that there was "no evidence, forceful or otherwise, of a purpose to 'exclude’ from arbitration claims based on” that clause of the agreement. Id., p 593. We held:
The question for the court is not whether one interpretation or another is correct, but whether the parties have agreed that an arbitrator shall decide which of the competing interpretations is correct.
The rule promulgated by the United States Supreme Court puts the burden on the party who would exclude a matter from a general arbitration clause to do so expressly and explicitly. We adopt that rule. [Id., p 595.]
As set forth earlier, the trial court in this case concluded that while the contract arbitration provision applied to apas, there was a fundamental underlying question of law as to whether "a Prosecutor can legally reserve unto himself the right to discharge assistant prosecutors at will dispite [sic] any provision in the collective bargaining agreement with the county to the contrary.”
The Court of Appeals, in reversing the judgment of the circuit court, said:
There was, therefore, a dispute over whether the discharge was "improper,” and the contractual provision outlining a specific grievance procedure, leading to binding arbitration, should have been followed.
We think that, while Kaleva applies to this case, the Court of Appeals and the merc applied it too simplistically, without considering the true nature of the question to be resolved in this case. The circuit court judge was absolutely correct when he observed that "on its face,” this collective bargaining agreement covers this dispute, in that apas are not specifically exempted from the "just cause” clause. However, what he perhaps should have said explicitly was, while the dispute appears to be covered, the question remains whether there was an agreement extant between the prosecutor (assuming he is the employer) and the union to submit these disputes to arbitration. In other words, in analyzing whether there was an agreement to arbitrate in this case, the focus should be on the parties, not the nature of the dispute.
In Kaleva, the school board sought to bring the teacher tenure act into consideration, but that act was relevant to the substance of the dispute, not to whether that type of dispute fell under the collective bargaining agreement or whether there was agreement between the parties. By contrast, in the instant case, any potential conflict between the pera and the prosecutors’ appointment/tenure act is relevant to a determination whether the necessary parties had an agreement at all.
Once the issue is properly framed, certain language from Kaleva becomes more pertinent, and supports a judicial determination of the larger question. As noted above, Kaleva emphasized that "[t]he question for the court is . . . whether the parties have agreed that an arbitrator shall decide . . . .” Kaleva, supra, p 595. The focus in Kaleva was on "the matter” to be arbitrated, not on the parties to the agreement. In the instant case, the question "whether the parties have agreed” cannot be answered until the question of the prosecutor’s role in bargaining is resolved.
The nature of the jurisdictional issue in the instant case is far more analogous to that addressed by the United States Supreme Court in John Wiley & Sons, Inc v Livingston, 376 US 543; 84 S Ct 909; 11 L Ed 2d 898 (1964). That case involved a merger between two employers, one of which had a contract with the union. One of the questions presented was whether the court or the arbitrator should decide whether the arbitration provisions survived the merger.
The Wiley Court first enunciated the general rule to be applied in these situations:
[WJhether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties. [Citations omitted. Wiley, supra, p 547. Emphasis added.]
It noted, "[h]ere the question is whether Wiley, which did not itself sign the collective bargaining agreement on which the Union’s claim to arbitration depends, is bound at all by the agreement’s arbitration provision.” Id., p 547 (emphasis added). Ultimately, the Court found that even though Wiley had not signed the contract, the agreement to arbitrate survived the merger.
The critical holding of Wiley, of course, is the jurisdictional one. The Court’s conclusion that the question whether a particular employer is bound by an arbitration agreement should be one for the court to decide rested upon a foundation of contract law.
The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all. [Id., p 547. Emphasis added.]
The rule of Wiley has recently been reaffirmed. See AT&T Technologies, Inc v Communications Workers of America, 475 US —; 106 S Ct 1415; 89 L Ed 2d 648 (1986).
This Court has also emphasized that where the question is a threshold contractual one, jurisdiction properly lies with the court. As this Court in Kaleva, supra, p 587, noted, "Arbitration is a matter of contract.” In Kaleva, it was said that "[a] party cannot be required to arbitrate an issue which he has not agreed to submit to arbitration”; likewise, in this case, it may be said that a party cannot be required to arbitrate when it is not legally or factually a party to the agreement. In Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95, 99; 323 NW2d 1 (1982), involving commercial arbitration, this Court stated:
The existence of a contract to arbitrate and the enforceability of its terms is a judicial question which cannot be decided by an arbitrator.
The Court of Appeals itself applied Wiley to a similar issue in Waterford Ass’n of Educational Secretaries v Waterford School Dist, 95 Mich App 107; 290 NW2d 95 (1980). That case involved enforcement of arbitration awards under an agreement entered into during an interim period between collective bargaining agreements. The Court of Appeals made particular note of the fact that
the trial court was not faced with the question of the arbitrability of the particular dispute under the terms of the arbitration clause; rather, the court addressed the threshold question of the very existence of an arbitration agreement. It is only when this preliminary inquiry results in a finding that an existing arbitration clause governs grievance settlement that the court may proceed to a limited review of the panel’s award. [Id., p 109.]
The Waterford Court concluded,
Thus, the authority exercised by the trial court was not beyond its power to act. In effect, the trial court was determining whether an agreement to arbitrate existed, rather than the scope of an arbitration clause or merits of the particular case. [Id., p 110.]
We conclude that the trial court was correct in assuming jurisdiction to determine whether the prosecutor was bound by the arbitration provision of the agreement that otherwise, all agree, would certainly encompass this dispute.
B
Having determined that the circuit court possessed the jurisdiction to decide the question whether the prosecutor was bound by the arbitration clause, we next decide the correctness of its finding that the prosecutor had employer rights under the appointment/tenure statute which were not extinguished by the pera. This question involves the status of the prosecutor as coemployer, as well as the resolution of any potential conflict between the prosecutors’ act and the pera.
The Court of Appeals reversed the decision of the merc on the question of the prosecutor’s status as an employer in relation to the apas and their bargaining representative. The panel found that the prosecutor is a coemployer with the county, as a result of the prosecutors’ appointment/tenure statute. We agree.
The pertinent provisions of the statute are:
The prosecuting attorney of any county is hereby authorized and empowered to appoint an assistant prosecuting attorney, by and with the consent of the circuit judge of the judicial circuit in which such county may be situated, which appointment shall be in writing and filed with the clerk of his county. [MCL 49.41; MSA 5.801.]
Any such assistant prosecuting attorney shall hold his office during the pleasure of the prosecuting attorney appointing him, perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability from any cause of the prosecuting attorney, but he shall be subject to all the legal disqualifications and disabilities of the prosecuting attorney, and shall before entering upon the duties of his office take and subscribe the oath of office prescribed by the constitution of this state and file the same with the county clerk of his county. The compensation of any such assistant prosecuting attorney shall be paid by the prosecuting attorney appointing him. [MCL 49.42; MSA 5.802.]_
No party or tribunal in this case has questioned that the statute, standing alone, gives the prosecutor the authority to appoint, supervise, and terminate apas. Nor has there been any questioning of the authority of the county, through its board of supervisors, to control the number and remuneration of assistant prosecuting attorneys. Appellant Michigan Council 25, in appealing the Court of Appeals partial reversal on the finding of the prosecutor’s coemployer status, expresses confusion about the coemployer claim. It notes:
[T]he Prosecutor does not object to the County’s presence or primary role in the collective bargaining process.
What, then, does the County mean by its claim that the Prosecutor is a "joint” employer? If that designation means that the Prosecutor is permitted a place at the bargaining table, the Union concedes this to be the case. It is a settled principle of labor relations that both parties to negotiations have the right, without challenge from the other, to select their bargaining team. [Citation omitted.]
Merc’s decision, furthermore, does not hold otherwise .... But the Prosecutor was not denied bargaining table participation in this case. By agreement with the County, the Prosecutor chose not to assert his views in negotiations. Accordingly, this is clearly not the case to determine the extent of his rights had he requested and the County denied him the opportunity to express his views at the bargaining table. . . .
The County is therefore apparently claiming that the Prosecutor’s purported status as a "joint employer” requires his presence at the bargaining table, and at least with respect to certain undefined "terms and conditions of employment,” that presence cannot be waived. . . .
To the contrary, the county does not contend that the prosecutor’s presence cannot be waived, but that it was not. For that reason, this case presents more than the question who is on the county’s bargaining committee; rather, it asks who has a right to be. For that reason, this is "the case to determine the extent of [the prosecutor’s] rights
Although we have had occasion to express ourselves on the identity of separate employers, Wayne Co Civil Service Comm v Bd of Supervisors, 384 Mich 363; 184 NW2d 201 (1971), we have not had occasion to deal directly with situations such as this where the characteristics of an employer seem to be constitutionally or legislatively allocated to more than a single public entity. Because the pera does not define the "public employer” who is obligated to negotiate in good faith, MCL 423.210(l)(e), 423.215; MSA 17.455(10)(l)(e), 17.455(15), that statute is not helpful on this point.
The Court of Appeals has had occasion to analyze this question, and a review of its efforts is instructive. Application of the coemployer concept to this case is consistent with that body of precedent.
In Wayne Co Civil Service Comm v Bd of Supervisors, supra, the debate was among the board of supervisors, the civil service commission, and the road commission as to who represented the employer in collective bargaining. This Court, without any discussion of a division of employer responsibility or coemployer status, merely held that the civil service commission’s responsibilities of classifying and providing other conditions of employment were "pro tanto” superseded by the pera and, that the road commission was a "separate” employer.
We did not, however, accept or reject the Court of Appeals analysis that had defined the general characteristics of an employer:
(1) that they select and engage the employee; (2) that they pay the wages; (3) that they have the power of dismissal; (4) that they have the power and control over the employee’s conduct. [22 Mich App 288, 294; 177 NW2d 449 (1970).]
The Court of Appeals, in Wayne Co Civil Service Comm, took note of the fact that the county road commission had hiring and firing power. It is this definition of employer that the Court of Appeals in the instant case relied upon in finding coemployer status. See Michigan Council 25, supra, p 737.
A coemployer must be distinguished from a separate employer, which was the status at issue in Wayne Co Library Bd v Wayne Co Bd of Comm’rs, 78 Mich App 240; 259 NW2d 440 (1977). In that case, the library board sought a determination that it was a separate employer of its employees for collective bargaining purposes. The Court of Appeals upheld an merc opinion to the effect that the board possessed insufficient "indicia of control over library employees to be considered the sole employer of them.” Id., p 244 (emphasis added). Although the union in the instant case cites Wayne Co Library Bd, clearly it is inapplicable, as the prosecutor does not claim to be the only employer of the assistant prosecutors. However, it is interesting to note that the Court, in dictum, "recognize[d], . . . that the board is 'also an employer of the same employees and entitled to have a representative at the bargaining table when its employees are the subject of discussion or negotiations.’ ” Id., p 245, n 3 (emphasis added).
Capitol City Lodge No 141, FOP v Meridian Twp, 90 Mich App 533; 282 NW2d 383 (1979), also attempted to construe "public employer” under the pera. The issue there was whether the sheriff was an "agent” of the county. Section 10 of the pera makes, that act applicable to "a public employer or an officer or agent of a public employer,” MCL 423.210(1); MSA 17.455(10X1).
The Court of Appeals applied federal case law developed under the National Labor Relations Act definition of "employer.” It concluded that the
utilization of the common-law principles of agency on the Federal level convinces us that the Michigan Legislature, when it enacted pera, intended the phrase, "agent of a public employer” in § 10 to mean an agent as defined by the common law of agency. [Id., p 538.]
It cited Wayne County CSC, supra, and Local 1518, Council 55, AFSCME v St Clair Co Sheriff, 77 Mich App 145; 258 NW2d 168 (1977), rev’d on other grounds 407 Mich 1; 281 NW2d 313 (1979), when it observed, in dictum:
The office of county sheriff is constitutionally created . . ., and the duties and authority of the sheriff are established by statute. . . . The sheriff and the County Board of Commissioners are joint employers of deputy sheriffs, with the sheriff controlling their appointment and tenure in position, MCL 51.70; MSA 5.863, while the county commissioners establish the number of deputies to be employed as well as the compensation levels. [Capitol City Lodge, p 539. Emphasis added.]
The Court ultimately concluded that there was no agency relationship.
[W]hen a township calls upon the county sheriff to provide special police protection for the township . . . the sheriff’s relationship to the township is that of an independent contractor and the actions of the sheriff are not to be imputed to the township. [Id., p 542.]
The Court of Appeals broached the subject of coemployer status most explicitly in Local 1518, supra. The case involved the sheriffs removal statute and § 15 of the pera, as well as the police and fire compulsory arbitration statute. The Court found that the sheriff in that case was entitled to coemployer status, but it found that he had waived his rights. This Court resolved the question on a different issue.
The Court of Appeals opinion in the instant case relied heavily on its opinion in Local 1518. It ruled that Local 1518 had established the coemployer status of county sheriffs with the county boards of commissioners. It apparently perceived little or no relevant legal distinction between the sheriff in Local 1518 and the prosecutor in the case at bar.
The relationship between the sheriff in Local 1518 and the deputy sheriffs is remarkably similar to that shared by the prosecutor and assistant prosecutors. The concurring opinion in Local 1518 in the Court of Appeals noted that
the sheriff has the constitutionally based responsibility of administering the entire operation of his law enforcement departments, save for the budgetary matters mandated by the county board of commissioners. To facilitate the discharge of that responsibility, the sheriff’s input into the collective bargaining process with his deputies is essential. [77 Mich App 152.]
We find that reasoning applicable here, v
A Minnesota case, General Drivers, Local #346 v Aitkin Co Bd, 320 NW2d 695 (Minn, 1982), is very similar to Local 1518. The relevant issue was whether a sheriffs statutory powers over the discharge of deputies was modified by the Public Employees Labor Relations Act (pelra) (the Minnesota equivalent of the pera) and whether those powers could be the subject of a collective bargaining agreement negotiated pursuant to that act. The Minnesota Supreme Court held that the county board was the "sole employer” of deputy sheriffs under the pelra, and that the pelra prevails to the extent of any conflict.
The Minnesota sheriffs had apparently argued that they should be considered coemployers for the purpose of negotiating a collective bargaining agreement. The court rejected that argument, but, significantly, on the basis of the definition of "public employer” contained in the pelra. The statute defined employer as "the governing body of a political subdivision or agency or instrumentality thereof which has ñnal budgetary approval authority.” Minn Stat, § 179.63, Subd 4 (1980) (emphasis added). The court noted that "[t]he county boards, not the sheriffs, have final budgetary authority.” General Drivers, supra, p 701.
The court noted that the sheriffs had "advance^] persuasive policy arguments in favor of being included as co-employers,” id., however, it stressed that "[t]he legislative history of the pelra and the amendments considered following its adoption indicate that the legislature specifically rejected the position advocated by the sheriffs . . . .” Id., p 700. Thus, while the Minnesota court found that the statutory definition of public employer precluded its designation of the sheriff as a "coem-ployer,” it appeared to have endorsed that concept in principle.
The merc itself has recognized the concept of coemployer. In St Clair Co Sheriff v Local 1518, AFSCME, 1976 MERC Lab Op 708, the county sheriff had refused to sign a collective bargaining agreement governing a unit of detectives, patrol officers, juvenile officers, custodians, clerk typists, and matrons in the sheriff’s department, although his undersheriff had been in attendance at three or four of the negotiation meetings. The sheriff claimed that he was not the employer. The merc held that both the board of commissioners and the sheriff were the public employer for purposes of the pera and were obligated to bargain.
The merc reasoned that "[i]n view of the various statutory provisions giving the sheriff the right to run the day-to-day operation of the Sheriff Department, it is clear that a sheriff is in the status of employer of Sheriff Department employees.” Id., p 712. It "found that the sheriff of any county and the County Commissioners, must act for purposes of collective bargaining as joint employers, both asserting their interests when they arise during collective bargaining.” Id., p 713.
The merc also recognized the coemployer concept in Kalamazoo Co Bd of Comm’rs v Fraternal Order of Police, Lodge No 98, 1978 MERC Lab Op 11. It applied Local 1518, supra, and found that “[i]f the Sheriff had rights, as the employer or joint employer,” Kalamazoo, supra, p 24 (emphasis added), he had waived those rights by failing to declare his position.
It would seem that the merc, in this case, departed from its own precedent and that of the Court of Appeals by relying on Presque Isle Co Bd of Comm’rs v Michigan Council 25, AFSCME, 1978 MERC Lab Op 1309. That case involved the formation of a nonsupervisory bargaining unit of county employees. The county argued that each office— the clerk, treasurer, and registrar of deeds — should be considered as separate and distinct bargaining units from the remaining county employees. Each of those elected offices is authorized by statute to appoint deputies, and the county relied on that statutory authority.
Obviously, the establishment of bargaining units is a different matter and not necessarily dependent upon the allocation of employer responsibilities. The bargaining unit is not in dispute in this case.
We are satisfied that the Court of Appeals has established sound precedent for the recognition of a coemployer status in collective bargaining. The coemployer concept is especially useful in the historically fragmented power structure of county government. When separately elected constitutional officers, with unique law enforcement powers, are given statutory authority to hire, manage, and terminate the employment of their assistants, such obvious employer criteria are not to be lightly swept away under the guise of collective bargaining inconvenience.
Moreover, the use of coemployer status does not appear to impose an undue burden on the collective bargaining process. It has not been argued to us, nor do we find any such concerns in our own perusal of the pera, that collective bargaining for public employees would be impaired or impeded when the representative of a bargaining unit is required to bargain with more than one person or officer, when necessary to reach agreement on both economic and conditions of employment issues.
The remaining aspect of this issue is the contention of the union that, to the extent that it grants the prosecutor employer status, the appointment/ tenure statute conflicts with, and therefore is superseded by, the pera. In pursuit of that argument, the union cites pertinent sections of the pera. Section 10(l)(e) provides:
It shall be unlawful for a public employer or an officer or agent of a public employer
* * *
to refuse to bargain collectively with the representatives of its public employees, subject to the provisions of section 11. [MCL 423.210(l)(e); MSA 17.455(10)(l)(e).]
Section 11 of the pera requires that
[representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer .... [MCL 423.211; MSA 17.455(11).]
Finally, § 15 of the pera reiterates the public employer’s duty to bargain, and defines collective bargaining: '
A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either .party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. [MCL 423.215; MSA 17.455(15). Emphasis added.]
The union cites Local 1383, Int’l Ass’n of Fire Fighters v City of Warren, 411 Mich 642; 311 NW2d 702 (1981), in which the city agreed to a collective bargaining agreement containing promotion and seniority provisions that it then sought to avoid by noting that those conditions of employment were subject to a civil service regulation enacted by the city pursuant to statutory authority. This Court found a conflict, which was resolved in favor of the pera.
We think that the Court of Appeals here correctly distinguished Local 1383 in finding no conflict between the pera and the prosecutors’ appointment/tenure act. The issue in Local 1383 was not whether the civil service commission was a coemployer and should have bargained together with the fire department, but whether the civil service commission could, without bargaining, continue to unilaterally set seniority and promotion policy.
The union cites a line of cases in accord with our judgment as set forth in Local 1383:
This Court has consistently held that pera prevails over conflicting legislation, charters, and ordinances in the face of contentions by cities, counties, public universities and school districts that other laws or the constitution carve out exceptions to pera. [Id., p 655.]
The Local 1383 Court relied upon various pera conflict cases: Central Michigan Univ Faculty Ass’n v Central Michigan Univ, 404 Mich 268; 273 NW2d 21 (1978); Pontiac Police Officers Ass’n v Pontiac (After Remand), 397 Mich 674; 246 NW2d 831 (1976); Rockwell v Crestwood Bd of Ed, 393 Mich 616; 227 NW2d 736 (1975); Eastern Michigan Univ Bd of Control v Labor Mediation Bd, 384 Mich 561; 184 NW2d 921 (1971); Wayne Co Civil Service Comm, supra; Detroit Police Officers Ass’n v Detroit, 61 Mich App 487; 233 NW2d 49 (1975), Iv den 395 Mich 756 (1975). None of these cases, however, involved the issue presented here— whether the pera precludes the need to bargain with more than one employer.
Council 25’s misperception of this issue is highlighted by its assertion that "to accept the County’s argument means that the Prosecutor’s Removal Statute removes a mandatory subject of bargaining from the County’s bargaining obligation^] . . . [which is] what this Court has rejected in all of the pera pre-emption cases.” (Citing Local 1383, supra, and Pontiac Police Officers Ass’n, supra.) In fact, the county and the prosecutor concede that tenure is a condition of employment and that the pera requires the prosecutor to bargain on the tenure issue.
The merc also miscast the issue, when it said:
Moreover, we have uniformly rejected the arguments of other law enforcement departments of county government that they have statutory sovereign authority to hire and fire which supersedes the terms of a collective bargaining agreement. We have held that they are bound by those agreements, and must act within the confines of the bargaining duty imposed upon them under pera. Kalamazoo [Co Bd of Comm’rs], 1978 MERC Lab Op 11; St Clair Co Sheriff, 1976 [MERC] Lab Op 708. We find no justification in the statutes or the Constitution of this State to depart from this reasoning for the benefit of the law prosecuting department of county government.
Again, we do not have here a situation where a coemployer bargained away some of its authority and now claims that it is not bound by the contract because of a statutory reservation of authority. Rather, we have a statutory grant of authority to a public employer, who recognizes its obligation to bargain collectively under the pera and claims readiness to do so, but protests that the pera should not be read as giving its authority to another entity.
We find no conflict or repugnancy between the pera and the finding of the circuit court that, in the absence of a waiver, the prosecutor is not bound by an arbitration clause to which he was, in effect, not a party.
c
On the question of waiver, the trial court found:
[T]he Prosecuting Attorneys did claim they should negotiate with the defendant bargaining agent and sought but were denied intervention. Further, no waiver, consent or acquiescence by the Prosecuting Attorney to the contract provisions regarding tenure exists. Under these factual circumstances the defendant Sharon Mormon Parrish cannot claim arbitration rights under a contract to which the Prosecuting Attorney was not a party, and who indeed always asserted his right to control tenure of assistant prosecuting attorneys.
The referee and the merc found that Prosecutor Cleland’s failure to send a copy of the February 12, 1981, letter to the union before a tentative agreement was reached constituted a "surrender” of any rights that contradicted the terms of the contract. The merc found that the prosecutor "knowingly stay[ed] away from negotiations when he could have asserted his claim . . . .”
A brief retracing of the facts relating to waiver is in order. In April of 1977, the apas began a dialogue with the union stating in a letter their unique duties and the fact that they "served purely at the pleasure of the elected Prosecutor.” A similar letter advised the county administrator of the apas disclaimer of representation. In May of 1978, the prosecutor’s staff filed their lawsuit seeking decertification, again alleging that they served at the pleasure of the prosecutor.
By June of 1978, the prosecutor’s staff had changed their view of union membership and had withdrawn their lawsuit. The county sent the union a letter announcing the resolution of the matter of representation in the bargaining unit. The county’s letter, however, indicated some areas of the then-existing contract that had questionable application to the apas. It noted in particular the fact that the apas served at the pleasure of the prosecutor.
In August of 1980 when the county department heads were notified of the beginning of bargaining for the contract which would replace the existing 1978-80 contract, Prosecutor Deegan wrote to the county, and sent a copy to the union, stating:
Please be advised that I intend to take an active part in any negotiations which affect the employees of the Prosecuting Attorney’s Office. Kindly keep me advised as to the date, time and place of any upcoming contact with any union which may or which claims to represent any of my employees.
In addition, Prosecutor Deegan wrote to a union steward regarding another matter — the filling of a position in the prosecutor’s office. In that letter, the prosecutor stated:
I must also point out again that the present Collective Bargaining Agreement does not bind or affect in any way the hiring, etc., practices of my office. I find this to be the case not because I have any opposition to the Agreement itself (I don’t), nor because I oppose collective bargaining itself (I don’t... in fact I intend to take an active part in any necessary upcoming bargaining which affects my office). But rather, I find myself not bound by the present Agreement simply because I took no part in its formation, negotiation, or execution, nor did I authorize anyone else to do so for me.
Prosecutor Deegan was neither invited to nor did he attend any of the negotiations.
Upon succeeding Prosecutor Deegan on January 1, 1981, Prosecutor Cleland, on February 12, 1981, wrote a similar letter to the County Administrator for St. Clair County that referred to the August, 1980, letter of Prosecutor Deegan in which he requested notice of negotiations and expressed his intention to participate in them. Because the con tract negotiations were in a sensitive state, this letter was not sent to the union until the day before ratification.
On this issue, we also have not previously spoken. However, the Court of Appeals and the merc have.
In Local 1518, supra, where the sheriff in a factually similar case wished to avoid arbitration over the dismissal of a deputy on the basis of his statutory authority over the tenure of his staff, the Court of Appeals held:
The testimony in this case shows the defendant sheriff was well aware that a contract was being negotiated between the representatives of his employees and the board of commissioners. During the period of time in which the contract was being negotiated, the sheriff had some conversation about the contract with the attorney employed by the board of commissioners to be its negotiator. The sheriff made no claim at that time that the representatives of the employees were negotiating with the wrong party. [Id., p 150. Emphasis added.]
The merc cases also provide some guidance as to what it thinks constitutes waiver. In Lake Co Sheriff v Fraternal Order of Police, 1981 MERC Lab Op 1, the sheriff’s refusal to process four grievances filed on behalf of deputy sheriffs who were terminated when a new sheriff took office was at issue. The merc found waiver, primarily on the basis of the sheriff’s awareness of and involvement with negotiations. The sheriff in that case had personally attended one or two of four negotiating sessions and had sent his undersheriff to attend the remainder in his behalf.
Likewise, in Kalamazoo Co Bd of Comm’rs, supra, the sheriff was found to have been asked to participate in negotiations, but "of his own choos ing failed to intervene in the bargaining . . . Id., p 17. The merc applied the Court of Appeals opinion in Local 1518 and found the sheriff bound by the contract. The referee found that the sheriff’s actions in that case had misled the county and the union to their detriment. Id., p 24. The referee considered the fact that
the sheriff in the past as a deputy had negotiated . . . and in the past under previous contracts had respondend [sic] to grievances without questioning the validity of the collective bargaining agreement. im
We note, however, that the sheriff in Kalamazoo Co testified that he had asserted a neutral position as to negotiations because, in that
he could not negotiate monetary things[,] he would be of no benefit. . . unless it got into management or rights that are "protected by law by the sheriff.” [Id., p 21.]
Thus, the merc found waiver in Kalamazoo Co despite some evidence of a reservation of rights.
We think on the facts presented there is ample uncontradicted evidence that the county and the union were well-advised that there were employer prerogatives statutorily vested in the prosecutor, that the prosecutor did not intend to surrender them to any other entity of county government, and that he professed a desire to bargain over them with the representatives of his staff.
In order to determine whether a waiver nevertheless occurred in this case, we think it best to answer two questions. Who has the burden of carrying the initiative of collective bargaining, and what effect does the change of prosecutors in the midst of bargaining have upon the conditions of waiver?
In this situation, the employer is not obligated to enter negotiations without a request to bargain from the employees or their representative. See NLRB v Columbian Enameling & Stamping Co, 306 US 292, 297; 59 S Ct 501; 83 L Ed 660 (1939); Local 586, Service Employees Int'l Union v Union City, 135 Mich App 553; 355 NW2d 275 (1984). The pera makes it an unfair labor practice for the employer "to refuse to bargain collectively with the representatives of its public employees.” MCL 423.210(l)(e); MSA 17.455(10)(l)(e) (emphasis added). It does not require the employer to initiate bargaining, but it prohibits the employer from refusing. There is no evidence that the union here requested the prosecutor to bargain. We therefore conclude that the merc’s finding of a waiver because the prosecutor did not "actively participate” in bargaining and "knowingly stayed away” placed a burden on the employer-prosecutor that has no basis in law.
Because the responsibility to bargain is usually triggered by a union’s request to the employer, the absence of such a request made to a coemployer could only result in a waiver when waiver is express or implied. Waiver may be implied by acquiescence that would reasonably lead the other bargaining parties to believe that an employer considered himself to be represented by another employer and ultimately to be bound by the agreement struck by the other participating parties.
We agree with the Court of Appeals that Prosecutor Deegan did not waive his coemployer prerogatives. Prosecutor Deegan did not directly authorize the county to bargain over his employer prerogatives, nor did he lead anyone to conclude that he acquiesced in such an occurrence. In fact, he explicitly stated and communicated a contrary intent. Nearly all of Prosecutor Deegan’s communications concerning his readiness to bargain, as well as most of the assertions by the apas, the county, and the successor prosecutor, reserving the prosecutor’s statutory prerogatives, were unacknowledged by the collective bargaining agent.
We disagree, however, with the Court of Appeals conclusion that Prosecutor Cleland, by withholding until the last minute his letter to the union, waived his employer prerogatives. When the collective bargaining in question began, Prosecutor Deegan was in office. When his chief assistant, Mr. Cleland, became prosecutor in the midst of the negotiations there was nothing said or done by Prosecutor Cleland that would lead the parties to the bargaining to believe that there was a sudden shift in the position of the prosecutor’s office.
We note with interest the observation of the merc, in Lake Co Sheriff, supra, when it upheld its referee’s finding that
in public employment the public-body or entity generally continues with merely a change in the officeholder or governing body of the public employer at periodic election intervals. [Id., p 20.]
The referee in Lake Co Sheriff, had held that
a successor sheriff is bound by the same collective bargaining agreement that bound his predecessor, even though the predecessor had refused to sign the agreement. As far as his duties and responsibilities are concerned, and his rights and obligations to the office in question, the successor sheriff is in a sense the alter ego of his predecessor, and he should stand in no better position than his predecessor in regard to his labor relations responsibilities. [Id.]
We conclude, in view of the fact that there was no expression of waiver or acquiescence by Prosecutor Cleland, that the events surrounding his communication restating his predecessor’s policy were irrelevant to this issue. Thus, the prosecutor retained his rights as coemployer to bargain on the issue of the tenure of his employees.
IV
We find no error in the view of the Court of Appeals that the evidence did not substantiate the merc’s unfair labor practice charge against the county under § 10(l)(e) of the pera. There was a genuine dispute over the arbitrability of the termination of Sharon Parrish which was timely tested in good faith in what has subsequently been determined to be the proper forum. We see no further merit in the plaintiff union’s arguments on this issue.
CONCLUSION
We reverse the Court of Appeals judgments in all respects except as to their reversal of the unfair labor practice. We accordingly reinstate the judgment of the circuit court.
Williams, C.J., and Levin, Cavanagh, Boyle, and Riley, JJ., concurred with Brickley, J.
Archer, J., took no part in the decision of this case.
Afscme Local 1518, the defendant in the appeal of the circuit court action by the prosecutor and the county is a local chapter of the plaintiff, Michigan Council 25, afscme, in the cross-appeals of the merc action brought against the county.
We employ the term "coemployer” to describe the status of the prosecutor that is disputed in this case. Although the Court of Appeals has used the terms "joint employer” and "coemployer” interchangeably, see Michigan Council 25, supra; Capitol City Lodge No 141, FOP v Meridian Twp, 90 Mich App 533, 539; 282 NW2d 383 (1979), there is an important distinction.
Under federal labor law, “joint employer” is equivalent, for our purposes, to a "single employer.” The single employer doctrine treats two separate employers as a single unit for collective bargaining purposes. See Pulitzer Publishing Co v NLRB, 618 F2d 1275, 1279 (CA 8, 1980). But see, 2 ABA Section of Labor and Employment Law, Developing Labor Law (2d ed), p 1444 (there are distinctions between "single” and "joint” employers under federal law). By contrast, the county and the prosecutor in this case obviously do not wish to be considered as one employer; the prosecutor seeks approval of his right to be treated as an employer of the apas only for purposes of bargaining about areas within his control.
The pera preemption cases fall into several categories, none of which is particularly analogous to the instant case.
As noted above in regard to Wayne Co Civil Service Comm, supra, some involve the question who or what is a public employer. See, e.g., Univ of Michigan Regents v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973); Eastern Michigan Univ Bd of Control, supra. Clearly, this case is distinguishable, in that the prosecutor does not claim not to be a public employer. He merely claims his right to be a co-public employer and to assert his statutory rights as an employer at the bargaining table.
Other preemption cases address the issue of what constitutes a mandatory subject of bargaining. See Central Michigan Univ Faculty Ass’n, supra (reappointment, retention, and promotion criteria are "other terms and conditions of employment” and are mandatory subjects of collective bargaining); Pontiac Police Officers Ass’n, supra (grievance and other disciplinary procedures are "other terms or conditions of employment” and mandatory subjects of collective bargaining); Detroit Police Officers Ass’n, supra. The prosecutor does not dispute the fact that tenure is a condition of employment and a subject of bargaining, he merely asserts his statutory right to retain his full authority in that regard.
Finally, Rockwell, supra, like Local 1383, was a case involving actual conflict between the terms of the pera and another statute, the teacher tenure act. That case is appropriately distinguished by noting that the prosecutor here does not wish to avoid a mandate of the pera, but seeks to retain his statutory authority while complying with the pera collective bargaining provisions.
The parties have raised an underlying question related to the waiver issue: Weis Sharon Parrish’s grievance covered by the 1978-80 contract or the later contract? The parties dispute whether Ms. Parrish’s discharge occurred December 31, 1980, or January 1, 1981. The Court of Appeals found the grievance to be governed by the 1980-81 contract. We find it unnecessary to resolve this issue, in light of our analysis to the effect that Prosecutor Deegan’s assertion of his employer rights remained effective through the critical early months of Prosecutor Cleland’s tenure. Thus, regardless of which contract governed, there was no waiver. | [
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Archer, J.
There are two issues before this Court. First, is the notice provision of Michigan’s labor mediation act preempted by the National Labor Relations Act? Second, if state law is preempted, and this Court is precluded from fashioning a remedy based on state labor law, what effect does preemption have on the parties’ dispute concerning payment of unemployment compensation? We find that since the notice provision of the labor mediation act is preempted, this preemption prohibits the construction of the Employment Security Act to permit payment of compensation in this case.
The dispute between the parties is whether some sixty employees were disqualified from receiving unemployment benefits from the Michigan Employment Security Commission from July 31, 1974, through August 22, 1974. The employers contested payment of benefits, charging that the claimants were involved in a labor dispute and therefore disqualified from receiving the benefits.
i
Plaintiff, the Metropolitan Detroit Plumbing & Mechanical Contractors Association, represents some sixteen employers in the business of plumbing and mechanical contracting in metropolitan Detroit. The association negotiates for its members in collective bargaining with members of Local Union 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefit-ting Industry of the United States and Canada, afl-cio. The union is the collective bargaining agent for the employees. The association itself employed none of the employees involved in this case, rather it was the association members who were the employers. The association and the union began negotiations for a new contract in March, 1974. In a letter dated March 19, 1974, the union notified the association of its intent to terminate the expiring 1972-74 contract on May 31, 1974, and of the changes the union desired in the contract terms. In addition, the union stated: "It is also the purpose of this letter to serve written notice of proposed modification, in accordance with the provisions of the Taft Hartley Act.” The union also sent letters to the Federal Mediation and Conciliation Service and to the State of Michigan Labor Mediation Board on March 19, 1974, to notify officials that the contract would terminate.
The parties were still negotiating when the contract expired on May 31, 1974. They agreed that the previous contract would remain in effect on a day-to-day basis while negotiations continued. On July 1, 1974, two employers, the Lome Company and the Donald Miller Company, reported to the association that union members were walking off job sites. At a special board of directors meeting called for July 1, the association’s board adopted a resolution giving the association’s negotiating committee the power to execute "in behalf of the association any action required including a lockout, to cope with Pipefitters Local 636 during current negotiations.”
Later in July, the same two employers reported that they were subject to "selective strike action” and that their work was subject to slow-downs. The Donald Miller Company reported that it was unable to get tradesmen to report to a job site, despite the request the company made to the union. _
The employers’ association was of the opinion that the union had engaged in strikes against its two members; so the association called a lockout, as authorized in its constitution and in the power of attorney executed by each member. According to the power of attorney, a strike against one association member is a strike against all.
About July 31, 1974, the association’s lockout of the union members occurred. Each of the union members involved in this case reported to work until his employer notified him on the job on July 31, 1974, that he was laid off or that his employment was terminated. There was work remaining for each union member when he became unemployed. Following the association action, the union picketed the plants and job sites of the association members. None of the union claimants in this appeal was an employee of the Lome Company or the Donald Miller Company, the employers who alleged concerted labor activity against them.
A new tentative agreement between the union and the association was reached on August 21, 1974. Most of the claimants involved in this appeal were recalled to work by their respective employers between August 22 and August 26, 1974. The locked-out employees applied to the Employment Security Commission for unemployment compensation benefits, but their applications were denied. The union appealed to a hearing referee who upheld the commission’s decision.
The Court of Appeals has explained the referee’s decision, as well as the board of review’s decision (by a vote of two to one) to reverse:
The referee held, under the above facts, that the unemployment of the claimants was the result of a labor dispute in which the claimants were directly involved, so that they fell within the disqualification provisions of the Employment Security Act, MCL 421.29(8)(a)(ii); MSA 17.531(8)(a)(ii).
On appeal from the referee’s decision, the board of review reversed. After noting that the statute was enacted to protect those who are involuntarily unemployed, who are capable of working but are prevented from doing so by others, the board considered the effect of a lockout on this statutory purpose. The board held that, in Michigan, an employer seeking to avoid payment of unemployment benefits on the basis of a labor dispute must prove that the employee is disqualified. The board also held that "a lockout situation is not automatically entitled to a designation as a labor dispute in active progress.” In the case at bar, the board concluded that the claimants were unemployed solely because the members of the employers’ association who were not experiencing strike activity honored their internal agreement to lock out the union because the union had "walked out” on two other employers. Thus, the claimants were entitled to compensation. [Metropolitan Detroit Plumbing Ass’n v Employment Security Comm, 113 Mich App 439, 442-443; 317 NW2d 649 (1982).]
The Whyne Circuit Court affirmed.
In the Court of Appeals, the parties continued to litigate the issue whether the employees were disqualified from receiving unemployment benefits under MCL 421.29(8); MSA 17.531(8) by reason of direct involvement in a labor dispute. See Smith v Employment Security Comm, 410 Mich 231; 301 NW2d 285 (1981). The Court explained that, under Smith, the affected employees could fall within the "labor dispute” disqualification of MCL 421.29(8); MSA 17.531(8). It stated that "[t]he individual claimants were directly involved in the 'labor dispute’ by reason of the fact that they were subjects of the lockout at their own place of employment.”
The Court nevertheless concluded that the affected employees were eligible for benefits. It explained that a failure to observe a statutory notice provision rendered the lockout unlawful, and stated further: "We cannot allow plaintiff to benefit from such wrongdoing.”
It appears from the foregoing that the claimants are ineligible for unemployment benefits under the rationale of Smith. There is, however, an important factor distinguishing the instant case. As claimants point out, the lockout went into effect with less than one day’s notice to the claimants. This was a violation of MCL 423.9; MSA 17.454(9), which requires a minimum of ten days notice before instituting a lockout. MCL 423.22; MSA 17.454(23) specifically provides that institution of a lockout without provision of the requisite notice is unlawful.
Under Smith, a lockout is clearly a disqualifying "labor dispute” when used as a bargaining tactic to gain a concession from employees. When legitimately instituted with proper advance notice, the lockout gives employees a choice within the bar gaining process. They may choose [1] to yield to the employer’s demands, [2] to offer some concession in hope of avoiding the lockout, or [3] to accept the condition of unemployment where the employee finds the first two alternatives unacceptable. In this sense, an employee who is unemployed as a result of a lockout is "voluntarily” unemployed. He has chosen his course.
Because the lockout in the instant case was instituted without the requisite notice, or any meaningful notice, the employees were precluded from making a choice among the three alternatives discussed. Thus, the employees in the instant case were involuntarily unemployed. As such, they are entitled to unemployment compensation since they fall within the purpose of the Employment Security Act to provide for the involuntarily unemployed. They are not disqualified by reason of their involvement in the lockout because the lockout was not legitimately instituted as contemplated by the Legislature. Put another way, the disqualification of MCL 421.29(8); MSA 17.531(8) applies to a situation where a lockout has been properly instituted, but in the instant case the lockout was instituted in a manner forbidden by the Legislature. We cannot allow plaintiff to benefit from such wrongdoing.
Our conclusion is supported by the discussion in Smith which indicates that if the lockout therein had been instituted for the purpose of avoiding the payment of unemployment benefits during an impending layoff, the lockout would not be considered a manifestation of a labor dispute. See Smith, supra, 266-267.
For the reasons set forth above, the decision of the trial court that the claimants are not disqualified from receiving unemployment benefits is affirmed. [Metropolitan Plumbing, supra, pp 444-446.]
The association then moved in the Court of Appeals for a rehearing. It argued that UAW-CIO v O’Brien, 339 US 454; 70 S Ct 781; 94 L Ed 978 (1950), had already held that MCL 423.9; MSA 17.454(9) was preempted by federal labor law. The Court of Appeals denied rehearing without explanation.
The association applied to this Court for leave to appeal. To obtain a Court of Appeals evaluation of the O’Brien preemption issue, we remanded the case to the Court of Appeals for consideration as on rehearing granted. 417 Mich 869 (1983). The Court of Appeals responded with an order reaffirming its earlier decision:
This Court having reviewed the entire matter on briefs submitted and thereafter, having concluded that its original position as set forth in the February 18, 1982, opinion fairly covers the issues and clearly sets forth our position therein, now, therefore, upon reconsideration, or as on rehearing granted, we affirm the trial court’s judgment in the manner as set forth in our February 18, 1982, opinion.
The association again applied for leave to appeal to this Court, and we again remanded this case to the Court of Appeals to obtain that Court’s evaluation of the O’Brien preemption issue:
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, the case is remanded on September 21, 1983, to the Court of Appeals for reconsideration whether the notice requirements of MCL 423.9; MSA 17.454(9) are preempted by the notice provisions of the National Labor Relations Act for purposes of determining eligibility for state unemployment compensation. [UAW-]CTO v O’Brien, 339 US 454; 70 S Ct 781; 94 L Ed 978 (1950). _
The Court of Appeals then issued a second order adhering to its earlier opinion. It relied on three cases, including New York Telephone Co v New York Dep’t of Labor, 440 US 519; 99 S Ct 1328; 59 L Ed 2d 553 (1979), for the proposition that "states are free to fashion their own criteria for unemployment compensation eligibility”:
This Court having given due consideration to the matter, we conclude that the use of the notice provision for this purpose does not offend the doctrine of federal labor law preemption, as states are free to fashion their own criteria for unemployment compensation eligibility. New York Tel Co v New York Labor Dep’t, 440 US 519; 99 S Ct 1328; 59 L Ed 2d 553 (1979); Florida AFL-CIO v State Dep’t of Labor, 676 F2d 513 (CA 11, 1982); Hawaiian Tel Co v State of Hawaii, 614 F2d 1197 (CA 9, 1980), cert den 446 US 984; 100 S Ct 2965; 64 L Ed 2d 840 (1980). Having so resolved the question, we affirm the trial court’s judgment in the manner as set forth in our February 18, 1982, opinion.[ ]
The association has applied for the third time to this Court for leave to appeal._
ii
Michigan’s labor mediation statute, MCL 423.9; MSA 17.454(9), provided at the time of the dispute:
No strike or lockout shall take place or be put into effect until and unless each of the steps have been taken and the requirements complied with as provided in this section.[ ]
The statute, in subsection 9(a), further provided in pertinent part that notice be given in the event of a strike or lockout:
In the event the parties thereto are unable to settle any labor dispute, the employees or their representatives, in the case of impending strike, or the employer or his agent, in the case of an impending lockout, shall serve notice of such dispute together with a statement of the issues involved upon the board and the other party to the dispute. Said notice may be served ... or sent. . . not less than 10 days before the strike or lockout is to become effective . . . .[ ]
In addition, MCL 423.22(a)(1); MSA 17.454(23)(a)(l) provided:_
It shall be unlawful for an employer to engage in a lockout or for a labor organization to engage in or instigate a strike . . . without first having served notice as required in section 9 . . . .[ ]
Plaintiff argues that Michigan’s notice provision was preempted by the notice provisions of the National Labor Relations Act, as amended, 29 USC 151 et seq.
The doctrine of federal preemption in labor law is complex and the literature on the doctrine is extensive.
Justice Frankfurter stated in San Diego Building Trades Council v Garmon, 359 US 236, 241; 79 S Ct 773; 3 L Ed 2d 775 (1959):
The extent to which the variegated laws of the several States are displaced by a single, uniform, national rule has been a matter of frequent and recurring concern. As we pointed out the other day, "the statutory implications concerning what has been taken from the States and what has been left to them are of a Delphic nature, to be trans lated into concreteness by the process of litigating elucidation.” [Citation omitted.]
The basis of the preemption doctrine is the Supremacy Clause of US Const, art VI. The United States Supreme Court has stated that the grant of power to Congress to regulate commerce could exclude any concurrent power in the states. The right of Congress, under the Commerce Clause, to legislate in areas of labor relations has long been recognized by the courts.
The National Labor Relations Act grants to the nlrb power over labor relations matters "affecting commerce.” Plaintiff association and its constituent members maintain that they are subject to the jurisdiction of the act, and the affected employees have taken a similar position.
Where the industry is one in which a labor dispute "affects commerce” and Congress has legislated on the matter, state law may be preempted. Congress has specifically stated the notice requirements to be followed by the party to the collective bargaining agreement who initiates action to change the terms of the agreement.
The National Labor Relations Act, 29 USC 158(d), provides in pertinent part
[t]hat where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such con- . tract shall terminate or modify such contract, . unless the party desiring such termination or modification—
(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later ....
In analyzing the preemption issue, the Court in San Diego Building Trades Council, supra, p 244, stated:
When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.[ ]
Therefore, we must determine whether federal labor law preempts a provision of state labor law.
In O’Brien, supra, the United States Supreme Court held that the strike-notice provision of MCL 423.9(a); MSA 17.454(9)(a) was preempted by the notice provisions of the National Labor Relations Act, as amended, 29 USC 151 et seq.
In O’Brien, the union struck its employer, Chrysler Corporation, without complying with Michigan’s statute which called for a notice to be given "[i]n the event the parties . . . are unable to settle any dispute . . . .” The notice was to be followed by mediation, and if that was unsuccessful, by a strike vote within twenty days, with a majority required to authorize a strike.
Under the nlra, the O’Brien Court noted, the prescribed notice can be given sixty days before the contract termination or modification. § 8(d). The Court observed that Congress safeguarded the exercise by employees of "concerted activities” and expressly recognized the right to strike. After quoting the federal prerequisites to the right to strike, the Court stated: "None of these sections can be read as permitting concurrent state regulation of peaceful strikes for higher wages. Congress occupied this field and closed it to state regulation.” Id., p 457.
The O’Brien Court went on to observe that "[t]he federal Act thus permits strikes at a different and usually earlier time than the Michigan law; and it does not require majority authorization for any strike.” Id., p 458.
Because the state statute conflicted with the federal act, the O’Brien Court found that the state legislation must yield. "A state statute so at war with federal law cannot survive.” Id., pp 458-459.
Preemption of state law by the nlra was recognized and applied in Davidson v Michigan Carpenters Council, 356 Mich 557; 97 NW2d 11 (1959). The legality of the association’s lockout must therefore be evaluated in terms of federal, not state, law. _
Defendant claimants distinguish O’Brien on the basis that this case involves a lockout rather than a strike.
Although O’Brien and Davidson arose within the context of strikes rather than lockouts, the state and federal notice provisions, and therefore the preemption doctrine, apply equally to both situations. The plaintiff’s conduct regarding the notice provisions is governed exclusively by federal law. We find that MCL 423.9; MSA 17.454(9) is preempted by §8(d) of the National Labor Relations Act.
Defendants argue that both sides, labor and management, are obligated to give notice under the provisions of 29 USC 158(d) and the lockout notice provision of MCL 423.9(a); MSA 17.454(9)(a). Since the notice provision is preempted by federal law, we look to the requirements of notice under federal law. No such dual notices are required. Whereas MCL 423.9; MSA 17.454(9) would require notice from the association prior to a lockout, federal law requires only that the party originally proposing contract changes (here the union) give notice. United Furniture Workers v NLRB, 118 US App DC 350; 336 F2d 738 (1964). See also NLRB v Mar-Len Cabinets, Inc, 659 F2d 995, 998 (CA 9, 1981); Hooker Chemicals v NLRB, 573 F2d 965 (CA 7, 1978); NLRB v Painting & Decorating Contractors, 500 F2d 54, 56 (CA 7, 1974). We find that the union gave the notice required under the act.
Since we have determined that Michigan’s labor mediation statute governing lockouts is preempted by the National Labor Relations Act, what effect does it have on the parties’ dispute concerning payment of unemployment compensation?
This Court in Smith v Employment Security Comm, 410 Mich 231; 301 NW2d 285 (1981), interpreted the unemployment benefit disqualification of MCL 421.29(8); MSA 17.53K8) and held that a lockout is one form of a labor dispute which would disqualify an employee from receiving unemployment benefits, provided his unemployment was due to a labor dispute in which he was directly involved.
Upon review, we must determine whether the findings of the mesc are supported by law and by competent, material, and substantial evidence on the whole record. MCL 421.38; MSA 17.540. Since there is no dispute as to the underlying facts raised in this appeal, the questions presented are to be treated as matters of law.
On the facts of this case, the referee determined that the employees were directly involved in a labor dispute, and therefore unable to recover unemployment compensation benefits.
Having decided that the nlra preempts Michigan’s lockout-notice provision, and recognizing that Smith held five years ago that a lockout was one form of a labor dispute, under these facts the employees cannot recover unemployment compensation.
We therefore hold that the association was not required to give a ten-day notice before instituting a lockout. We reject the analysis of the Court of Appeals which held that the association had violated Michigan’s lockout statute and that the statute was not preempted.
We reverse the decision of the Court of Appeals and reinstate the referee’s decision.
Williams, C.J., and Levin, Brickley, Cav-anagh, Boyle, and Riley, JJ., concurred with Archer, J._
Labor Management Relations Act, 29 USC 141-197.
During a lengthy negotiation session on July 29, 1974, little progress was made on the issues. Thereafter, the association notified the union that it was terminating the prior understanding which had been to continue the previous contract on a day-to-day basis.
One of the defendants, Paul G. Beauvais, was named to represent the claimants who belong to the union.
The referee who heard the consolidated appeals on defendants’ claims took testimony regarding the contract negotiations and the eventual lockout and rendered identical decisions on the employees’ claims since the individual factual variations were not of such a significant nature as to alter the ultimate decision in any one appeal.
The trial court stated:
[A]t the time of the lockout none of the employees seeking unemployment benefits was on strike or in a slowdown. In fact, no finding has been made to the effect that any employees of any member of the Association was on strike. That assertion is made only by the employers, and has not been adopted by any of the fact finders below.
See also, generally, Anno: Unemployment compensation: Application of labor dispute disqualiñcation for beneñts to locked out employee, 62 ALR3d 437.
The filing of that motion marked a turning point in this case. The prior proceedings had focused almost exclusively on the MCL 421.29(8); MSA 17.531(8) labor dispute disqualification. The subsequent proceedings have focused almost entirely on whether the MCL 423.9(a); MSA 17.454(9)(a) notice requirement is preempted.
The Court of Appeals was clearly correct to the extent that it cited these cases for that proposition. Unfortunately, that proposition does not resolve this case. No eligibility criteria for unemployment compensation are challenged here. The criterion that is relevant to these claimants is the alleged involvement in a labor dispute. The Michigan Legislature has decided, as New York Telephone Co held it may, that such involvement disqualifies a claimant from receiving benefits. This Court has construed such involvement to include lockouts. See infra, pp 424-425 for a discussion of Smith v Employment Security Comm, 410 Mich 231; 301 NW2d 285 (1981). The Court of Appeals has added an additional gloss by holding that the lockouts must be legal. Even assuming that this additional statutory construction is permissible, the fact remains that the legality of the lockout must be determined by reference to labor law provisions, which define when a lockout may occur. The Court of Appeals chose to refer to the preempted Michigan notice requirement even though, as a labor law provision, that requirement is invalid.
1949 PA 230.
The quoted portion of the statute now reads:
A strike or lockout shall not take place or be put into effect until and unless each of the steps are taken and the requirements complied with as follows ....
1949 PA 230.
The quoted portion of the statute now reads:
If the parties thereto are unable to settle any labor dispute, the employees or their representatives, in the case of impending strike, or the employer or his agent, in the case of an impending lockout, shall serve notice of the dispute together with a statement of the issues involved upon the commission and the other party to the dispute. The notice may be served ... or sent . . . not less than 10 days before the strike or lockout is to become effective.
1965 PA 282.
The quoted portion of the statute now reads:
It shall be unlawful for an employer to engage in a lockout or for a labor organization to engage in or instigate a strike without first having served notice as required in section 9.
Among the major articles are the following: Cox, Recent developments in federal labor law preemption, 41 Ohio St L J 277 (1980); Lesnick, Preemption reconsidered: The apparent reaffirmation of Garmon, 72 Colum L R 469 (1972); Cox, Labor law preemption revisited, 85 Harv L R 1337 (1972); Come, Federal preemption of labor-management relations: Current problems in the application of Garmon, 56 Va L R 1435 (1970); Peck, Accommodation and conflict among tribunals: Whatever happened to preemption?, Labor Law Developments, 1969, Fifteenth Annual Institute, Southwestern Legal Foundation, 121; Michelman, State power to govern concerted employee activities, 74 Harv L R 641 (1961); Wellington, Labor and the federal system, 26 U Chi L R 542 (1959); Meltzer, The Supreme Court, Congress, and state jurisdiction over labor relations: I, 59 Colum L R 6; II, 269 (1959); Hays, State courts and federal preemption, 23 Mo L R 373 (1958).
The Supremacy Clause states in pertinent part: •
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Commerce Clause, US Const, art I, §8, grants to Congress power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The United States Supreme Court articulated the grant of power to Congress in Gibbons v Ogden, 22 US (9 Wheat) 1; 6 L Ed 23 (1824). See also Tribe, American Constitutional Law, pp 376-379.
NLRB v Jones & Laughlin Steel Corp, 301 US 1; 57 S Ct 615; 81 L Ed 893 (1937).
During the period relevant to this dispute, the association members in the conduct of their business had gross revenues in excess of $500,000 and had goods and materials valued at more than $50,000 transported and delivered to their businesses from points outside Michigan. Thus the nlrb’s jurisdictional standards were met, the association asserts. In addition, the affected employees have taken a similar position: In answering the association motion for rehearing in the Court of Appeals, the employees appended, and relied in part upon, a federal unfair labor practice charge that their union had filed against the association. In addition, the nlrb determined the association is an employer engaged in commerce within the meaning of the act, 29 USC 152(2), 152(6) and 152(7). The union is a labor organization within the meaning of 29 USC 152(5), the nlrb stated.
Cases dealing with labor law preemption have involved activity that is protected or arguably protected by § 7 of the nlra or activity that is prohibited or arguably prohibited under § 8 of the nlra. Id., p 245.
The text of the statute at the time of appellants’ strike in 1948 is quoted in O’Brien, supra, p 455, n 1. See ante at 417 and ns 9, 10 for subsequent changes in the statute.
In addition, the O’Brien Court found that the bargaining unit established in accord with federal law may be inconsistent with the unit that state regulation required.
Under federal law, members of a multiemployer bargaining unit are permitted to defensively lock out a union in response to a whipsaw strike. In NLRB v Truck Drivers Union, 353 US 87; 77 S Ct 643; 1 L Ed 2d 676 (1957), the United States Supreme Court held that a lockout, instituted by a multiemployer bargaining association, after the union began a whipsaw strike, was not an unfair labor practice, but rather a lawful defense to the strike which imperiled the employers’ common interest. The court defined "whipsawing” as the process of striking one at a time the employer members of a multiemployer association. Id., p 90, n 7. The United States Supreme Court has broadened the scope of lockouts protected under the National Labor Relations Act. See also American Ship Building v NLRB, 380 US 300; 85 S Ct 955; 13 L Ed 2d 855 (1965). Lockouts are also the subjects of vast commentary. Baird, Lockout law: The Supreme Court and the NLRB, 38 Geo Wash L R 396 (1970); Feldesman & Koretz, Lockouts, 46 Boston U L R 329 (1966); Freilicher, The supportive lockout, 19 Syracuse L R 599 (1968); Meltzer, The lockout cases, 1965 Sup Ct R 87; Summers, Labor law in the Supreme Court: 1964 term, 75 Yale L J 59 (1965).
MCL 423.9(a); MSA 17.454(9)(a).
29 USC 158(d).
1974 PA 104.
The statute provided at the time of the dispute:
(8) An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by such labor dispute, in the establishment in which he is or was last employed, or to a labor dispute, other than a lockout, in active progress, or to shutdown or start-up operations caused by such labor dispute, in any other establishment within the United States which is functionally integrated with such establishment and is operated by the same employing unit.
On July 2, 1986, the United States Supreme Court handed down its decision in Baker v General Motors Corp, 478 US —; 106 S Ct 3129; 92 L Ed 2d 504. Baker, however, does not affect the decision in the case at bar. Baker holds that § 29(8) of Michigan’s Employment Security Act, which prohibits payment of unemployment compensation to employees who "finance” a strike, is not preempted by federal law. In the statute, the Legislature provided that an employee is ineligible for unemployment compensation if he has provided "financing” — by means other than the payment of regular union dues — for a strike that causes his unemployment. There was no question raised in this case suggesting that § 29(8) of the Michigan Employment Security Act was preempted.
[T]he court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record.
The board of review, in a two-to-one decision, reversed the decision of the referee. The majority held that the employees were not disqualified from receiving unemployment benefits since in certain situations, lockouts were not labor diputes. The board’s decision was prior to this Court’s holding in Smith that a lockout is one of the forms of a labor dispute. Therefore the board’s decision was in error, and should be reversed. The decision of the circuit court, also decided before Smith is reversed. | [
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Archer, J.
The plaintiff, Gerald Edward Se-maan, challenged the Liquor Control Commission’s award of a Specially Designated Distributor license to John and Jane Waszchuk. The Waszchuks applied for the sdd license first, but Semaan argued that when the Waszchuks applied they were not qualified for the license according to the commission’s own rules.
Following Semaan’s appeal in the Oakland Cir cuit Court, the trial judge remanded the case to the commission, stating that the commission must weigh each of the ten factors discussed below in evaluating an applicant’s license qualifications. The trial judge also found that the commission abused its discretion in finding that the first application of the Waszchuks was a qualified application.
The Court of Appeals reversed the trial court, holding that the commission did not abuse its discretion in interpreting and applying its rules. The Court also found that the trial court erroneously went outside the record in considering a letter which purportedly showed that the Waszchuks were not considered qualified by the commission when they filed their initial application. In the hearing before the commission, the plaintiff did not present the letter or a claim based upon the letter.
There are two issues in this case.
ISSUE i
Whether the Court of Appeals erred in upholding the lcc’s ruling that pursuant to 1979 AC, R 436.1105(2), the sole criterion for awarding a liquor license, where all the competing applicants were minimally qualified, was the order in which the applications were submitted to the commission.
ISSUE II
Whether the Court of Appeals erred in finding that the trial court went outside the record for its decision. Whether the Court of Appeals erred in reversing the order of the trial court.
We hold that the Liquor Control Commission correctly evaluated the qualifications of the appli cants by using the ten factors listed in 1979 AC, R 436.1105(2)(a)-(j) before awarding the sdd license.
We also hold that an applicant must be an established merchant at the time an sdd license becomes available.
FACTS
Plaintiff Gerald Edward Semaan and defendants Jane and John Waszchuk applied to defendant commission for sdd licenses for their businesses in Oakland County’s Commerce Township. The Waszchuks applied on June 9, 1980, and Semaan applied October 10, 1980. The commission notified the Waszchuks and Semaan that no licenses were available. In a separate letter, the commission informed the Waszchuks that they did "not appear to fall within the definition of an established merchant” so the commission would take no further action on their application.
In 1981, the commission reviewed the data of the 1980 Decennial Census and determined that Commerce Township qualified for one additional sdd license because of a population increase. The applicants were notified and renewed their applications, with Semaan reapplying on August 7, 1981, and the Waszchuks reapplying on September 11, 1981. Six other applicants also sought the license. The commission, at a meeting on March 24, 1982, considered the applications and stated its intent to grant the sdd license to the Waszchuks. Semaan and another unsuccessful applicant requested a hearing. The commission," after reviewing the facts and the law, issued an order affirming its earlier decision. Semaan sought review in the circuit court. On May 13, 1983, the circuit court reversed the commission, ruling that the commission erred in failing to weigh each factor (of the ten factors in the commission’s rule) to determine if one applicant was more qualified than another. The circuit court remanded the case to the commission for further hearing. The commission appealed the decision in the Court of Appeals.
The Court of Appeals reversed the trial court’s decision. The Court found no abuse of discretion in the commission’s interpret-... don and method of applying its rules. See Semaan v Liquor Control Comm, 136 Mich App 243; 355 NW2d 643 (1984). We granted leave on June 26, 1985. 422 Mich 938. Upon review, we agree with the Court of Appeals which approved the commission’s interpretation of its own licensing rules and the award of the sbd license to the Waszchuks. But we find that the Court of Appeals erred when it stated that the trial court went outside the record in considering a letter from the commission indicating that the Waszchuks were not established merchants when they filed their application. The letter was part of the record.
DISCUSSION
Plaintiff argues that the commission’s record in this case is inadequate to provide for judicial review. We disagree. We find that the record is adequate to review the commission’s decision.
The commission is vested with constitutional authority to "exercise complete control of the alcoholic beverage trafile within this state.” *When the Legislature established the Liquor Control Commission, the commission’s power was broadly stated: "[T]he commission shall have the sole right, power, and duty to control the alcoholic beverage traffic and traffic in other alcoholic liquor within this state, including the manufacture, importation, possession, transportation and sale thereof.”
Among the powers delegated to the commission were issuing licenses, selecting distributors, and enacting rules. The commission has the authority to "issue licenses, as provided in this act . . . .” MCL 436.17(1); MSA 18.988(1). As to distributors, the "commission may license any hotel or established merchant... in places that the commission may designate, to sell alcoholic liquor ... for consumption off the premises.” MCL 436.14; MSA 18.985. Regarding rulemaking, "the commission shall exclusively exercise the power to make rules and regulations under the act to regulate the control of the alcoholic beverage traffic within the state . . . .”
Because of the constitutional power granted to it, the commission is said to have plenary power over the liquor traffic in the state. Terre Haute Brewing Co, Inc v Liquor Control Comm, 291 Mich 73; 288 NW 339 (1939). The word "control,” as used in the constitution, means to regulate and govern. Noey v City of Saginaw, 271 Mich 595; 261 NW 88 (1935). While the commission has plenary power, this power is not absolute. The constitution expressly provides that the lcc’s power is "subject to statutory limitations.” While every vestige of regulation is within the purview of the commission’s authority, the same cannot be said of the agency’s procedures for implementing that authority. Mallchok v Liquor Control Comm, 72 Mich App 341, 344; 249 NW2d 415 (1976).
By statute, the commission may license any hotel or established merchant to sell alcoholic liquor for consumption off the premises. The statute provides that such a distributor, if a natural person, shall be a citizen of this state and, if a corporation, shall be organized under the laws of the state. MCL 436.14; MSA 18.985.
The commission, acting upon the authority granted to it by MCL 436.7; MSA 18.977, enacted the following rules: 1979 AC, R 436.1105(2)(a)-(j), stating the factors the commission shall consider in determining whether an applicant may be issued a license, and 1979 AC, R 436.1101(l)(a), defining an "established merchant.”
In 1979 AC, R 436.1105(2) the criteria for an applicant are as follows:
(2) The commission shall consider the following factors in determining whether an applicant may be issued a license:
(a) The applicant’s management experience in the alcoholic liquor business.
(b) The applicant’s general management experience.
(c) The applicant’s general business reputation.
(d) The opinions of the local residents, local legislative body, or local law enforcement agency with regard to the proposed business.
(e) The applicant’s moral character.
(f) The order in which the competing initial application forms are submitted to the commission.
(g) Past criminal convictions of the applicant for crimes involving moral turpitude, violence, or alcoholic liquor.
(h) The applicant’s excessive use of alcoholic liquor.
(i) The effects that the issuance of a license would have on the economic development of the area.
(j) The effects that the issuance of a license would have on the health, welfare, and safety of the general public.
In addition, the commission defined an established merchant in its own rules:
"Established merchant” means a person who owns or who has owned a drugstore, patent medicine store, supermarket, grocery store, delicatessen store, party store, meat market, or a department store which includes 1 or more of the aforementioned businesses, and who has owned that business for 1 year at some location. [1979 AC, R 436.1101(l)(a).] [ ]
When the Waszchuks first applied for the sdd license, in June, 1980, the commission sent them a letter stating that they did "not appear to fall within the definition of an established merchant.” Plaintiff argues that the statute requires that an applicant for an sdd license must be an established merchant and that the commission’s letter was a final determination that the Waszchuks were not qualified to apply for the license. Plaintiff argues that the Waszchuks’ failure to appeal the commission’s decision precluded them from using their June, 1980, application as the date of their initial application.
The defendant commission argues that such advisory letters are routinely issued to all applicants, including Semaan. The commission maintains that there was no hearing on the Waszchuks’ status as established merchants and that the letter did not have the effect of an order issued by the commission. Furthermore, the commission contends that the priority of filing is determined from the order in which "the initial application forms are submitted to the commission.”
However broad the commission’s grant of power, the courts have held that "[wjhere an agency issues rules and regulations to govern its activity, it may not violate them.” Golembiowski v Madison Heights Civil Service Comm, 93 Mich App 137, 148; 286 NW2d 69 (1979), lv den 408 Mich 893 (1980). See also Brown v Dep’t of State Police, 392 Mich 811 (1974), and DeBeaussaert v Shelby Twp, 122 Mich App 128; 333 NW2d 22 (1982).
The commission has interpreted 1979 AC, R 436.1105(2)(a)-(j) to mean that once applicants satisfy the rule’s minimum qualifications, the successful applicant is determined by the order in which an initial application is submitted to the commission. The priority of filing is to be determined from the order in which the "competing initial application forms are submitted to the commission” and not some subsequent application.
The commission determined at its June 17, 1982, meeting that the three competing applicants for the sdd license already met the minimum require ments for that license since each of the applicants held Specially Designated Merchant licenses.
The commission considers the merchant’s application date appropriate to control priority, and an applicant satisfies the requirement of being an established merchant if this requirement is complied with when the sdd license becomes available. The applicant need not qualify as an established merchant at the time that the application is filed.
Since there is no explicit requirement that an applicant must be an established merchant at the time he initially applies for the license, we decline to read such a requirement into the statute and rule.
We agree with the commission. The sdd licensing statute, MCL 436.14; MSA 18.985, states that an applicant must be an established merchant in order to be awarded an sdd license. By rule, 1979 AC, R 436.1101(l)(a), the commission defines an established merchant as one who owns a specific type of business for one year at some location.
In this case, the Waszchuks were notified shortly after they applied for an sdd license that they were not established merchants. However, the Waszchuks met that requirement by the time the sdd license became available._
The plaintiff additionally argues that in its decision of March 24, 1982, the commission awarded the sdd license to the Waszchuks and denied the license to the plaintiff on the sole basis that the plaintiff allegedly did not have priority of filing pursuant to 1979 AC, R 436.1105(2)(f). The plaintiff contends that in the same decision the lcc held that "while the priority of filing factor in R 436.1105, Rule 5(2)(f), mac is useful in separating applicants who may be otherwise equally qualified, priority of filing is not the sole determinant in the issuance of a limited type of quota license.” The plaintiff maintains that the commission did not make any findings of fact with regard to the other nine criteria, other than to find that the three remaining applicants were all minimally qualified.
The defendant commission explained its application of the rule and the procedures which it follows where the number of applicants exceeds the number of licenses available.
At the meeting of June 17, 1982, the commission explained:
Essentially this procedure is a process of elimination whereby the Commission first removes from consideration those applicants who do not meet statutory requirements for licensure or who do not comply with the provisions of the Commission’s Administrative Rules. In most cases, the Commission then eliminates those applicants within 2,640 feet of an existing sdd outlet. At this point, barring the existence of some other negative factor, the Commission considers the priority of application dates of the remaining applicants, and grants the available licenses in the same order in which the applicants applied, pursuant to R 436.1105, Rule 5(2)(f), mac.
The factors enumerated in the rule were promulgated by the Commission for the purpose of setting minimum standards for all applicants for licensure, and the Commission has traditionally operated on the premise that once an applicant has met these minimum standards that applicant is equal to all other applicants who have done likewise.
The defendant commission argues that the validity of its decision in choosing among competing applicants for a single license does not require giving any one factor, stated in 1979 AC, R 436.1105(2), any more weight than any other factor.
The defendant commission contends that the application of an objective standard as expressed in subsection (2)(f), such as the first in time of applications where all of the factors pass threshold requirements, is not only appropriate in liquor licensing situations involving competing applicants, it is indeed far superior to the application of subjective criteria on a comparative basis for the purpose of judging the most qualified applicant, especially when neither the statute nor the rules require such judgment.
Moreover, the commission argues that to require it to make findings on a comparative basis under all other criteria in preference to provision (2)(f) of the rule would be contrary to the express language in (2)(f) and thus would render it nugatory.
The constitution provides for judicial review of final decisions of administrative agencies. Const 1963, art 6, § 28. The courts have stated: “Review ... is limited in scope to 'whether such final decisions, findings, rulings and orders are authorized by law ....’” 13-Southfield Associates v Dep’t of Public Health, 82 Mich App 678, 686; 267 NW2d 483 (1978), citing Viculin v Dep’t of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971).
The commission is required to follow the clear language of its own rule. Brown v Dep’t of State Police, supra. The rule requires that the commission shall consider the ten factors listed in determining whether an applicant may be issued a license.
Applying these principles to this case, we find that the word "shall” used in 1979 AC, R 436.1105(2)(a)-(j) requires the commission to evaluate the qualifications of the applicant using each of the ten factors. While the rule requires the commission to exercise its discretion to determine who is best qualified for a liquor license, the rule does not state the weight which the commission is required to apply to each factor. We find that the method used by the commission complies with the statutory requirements.
Therefore, we affirm the decision of the Court of Appeals.
Levin, Brickley, Cavanagh, Boyle, and Riley, JJ., concurred with Archer, J._
Sdd licenses permit the holder to sell packaged liquor (but not beer and wine) for takeout only.
1979 AC, R 436.1141(1) provides in part: "In cities, incorporated villages, or townships, only 1 specially designated distributor license shall be issued by the commission for every 3,000 population, or fraction thereof.” At the time of the applications, there were six sdd licenses issued which filled the quota.
See post, pp 36-37 and n 9.
The commission found that the Waszchuks filed an application for a new sdd license June 9, 1980, although their application was dated June 3,1980. The commission stated it intended to issue the license to Jane Waszchuk and John Waszchuk who is [sic] second in priority in filing. Another couple filed for a new sdd license originally on January 16, 1978, but at that time they did not have priority of filing. When they reapplied, they did not meet other licensing requirements.
The constitutional provision reads in part:
[T]he legislature may by law establish a liquor control commission which, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof. [Const 1963, art 4, § 40.]
MCL 436.1(2); MSA 18.971(2).
MCL 436.5(b); MSA 18.975(2).
Const 1963, art 4, § 40. See Zukaitis v Fitzgerald, 18 F Supp 1000 (WD Mich, 1936).
The rule was rescinded. 1979 ACS 4, p 97. Effective February 3, 1981.
A "Specially Designated Merchant” license authorizes a merchant to sell beer and wine at retail for takeout only. MCL 436.2q; MSA 18.972(17). An sdm (beer and wine) license is a prerequisite to an sdd license application.
In Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968), we quoted with approval the following language of the United States Supreme Court in United States v Moore, 95 US 760, 763; 24 L Ed 588 (1877):
The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons.
See also Sisbarro v City of Fenton, 90 Mich App 675; 282 NW2d 443 (1979).
The constitutional provision states in pertinent part as follows:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.
In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation. | [
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] |
Cavanagh, J.
Defendant was convicted, following a bench trial, of second-degree murder and possession of a firearm during the commission of a felony for the killing of his estranged wife’s friend, Johnny McQueen. He was also convicted of kidnapping his wife, Sue Love, after committing the murder. Defendant received two 5ti- to 20-year sentences for the murder and kidnapping, and the mandatory two-year consecutive sentence for felony-firearm. The Court of Appeals affirmed. 127 Mich App 596; 339 NW2d 493 (1983). In response to defendant’s request for review, this Court ordered appointment of counsel. We subsequently granted defendant’s delayed application for leave to appeal. 422 Mich 856 (1985).
The prosecution’s case rested solely on the testimony of Mrs. Love, who did not wish to testify. Defendant presents two issues for our consideration:
1) Can a defendant assert the spousal privilege provided in MCL 600.2162; MSA 27A.2162 to prevent his spouse from testifying as to an offense committed against a third person where the defendant also committed an offense against the witness-spouse during the same criminal transaction?
2) When the privilege does not bar spousal testimony, can the witness-spouse be compelled to testify against the defendant-spouse?
i
The Court of Appeals aptly summarized the facts:
The major witness presented by the prosecution was defendant’s wife, Sue Love. Her testimony established that she was separated from defendant and had begun divorce proceedings at the end of October, 1980. Defendant arrived at Ms. Love’s home after her afternoon work-shift sometime around 11 or 11:30 p.m. on October 30, 1980. He accused his estranged wife of "fooling around” with her co-worker, Johnny McQueen. Defendant telephoned Mr. McQueen to ask him to come over to his wife’s house to discuss his relationship with defendant’s wife. Mr. McQueen arrived about 20 minutes later.
Defendant, his wife, and Mr. McQueen went outdoors and into Mr. McQueen’s car where they talked. Mr. McQueen sat in the front seat of the car with Ms. Love. Defendant sat in the back seat. After some discussion followed by a few moments of silence, defendant asked Mr. McQueen for a cigarette. After Mr. McQueen gave defendant a cigarette, defendant pulled a nickel-plated handgun out of his pocket and shot Mr. McQueen at close range in the temple. Defendant then pushed Mr. McQueen’s body out of the car, took the driver’s seat, pointed the gun in his wife’s direction, and threatened to harm her if she tried to leave.
Defendant drove aimlessly for some time before stopping at a vacant house for about one-half hour. Defendant then forced his wife back into Mr. McQueen’s automobile, drove aimlessly again, and went to the home of some friends after the car ran out of gas. Ms. Love testified that defendant did not threaten her during this period, but did threaten her initially.
Prior to Ms. Love’s testimony, defense counsel had moved to suppress her testimony regarding the killing of McQueen. Defendant argued that her testimony regarding that crime was excludable under the spousal privilege statute.
The trial court denied the motion, finding a New Jersey case with a similar fact situation persuasive. State v Briley, 53 NJ 498; 251 A2d 442 (1969). The trial court also found that defendant’s spousal privilege had been waived when Ms. Love testified at the preliminary examination. At both the preliminary examination and trial, Ms. Love stated on the record that she did not wish to testify against her husband.[ ] Furthermore, defendant objected and stated that he did not consent to a waiver of the privilege. [127 Mich App 598-600.]
The spousal privilege is contained in MCL 600.2162; MSA 27A.2162, which states in pertinent part:
A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, in cases of prosecution for a crime committed against the children of either or both, and where the cause of action grows out of a personal wrong or injury done by one to the other.... [Emphasis added.]
The statute vests the privilege of precluding spousal testimony in the nonwitness-spouse. The privilege can be asserted only while the spouses are legally married. It precludes all testimony regardless of whether the events at issue occurred before or during the marriage. People v Wadkins, 101 Mich App 272, 282-283; 300 NW2d 542 (1980).
The parties agree that Mrs. Love could voluntarily testify concerning the kidnapping prosecution since it grew out of a personal wrong done to her by defendant. The Court of Appeals concluded that Mrs. Love could also testify concerning the murder and felony-firearm charges. The Court initially noted that the modern justification for the spousal privilege is preservation of marital harmony. However, the privilege excludes otherwise relevant and admissible evidence. Thus, the privilege should be narrowly defined, while the exceptions permitting testimony should be broadly construed. The Court concluded that a crime committed against a third person during the same criminal transaction as a crime committed against the witness-spouse "grows out of a personal wrong or injury done by one [spouse] to the other.”. The Court noted that requiring a victim-spouse to testify concerning all offenses, rather than only those committed against her, would not significantly decrease marital harmony. Moreover, this holding was in accord with the "overwhelming weight of authority from other jurisdictions.” 127 Mich App 600-603.
The Court of Appeals further held that the trial court could compel Mrs. Love to testify. People v Sykes, 117 Mich App 117; 323 NW2d 617 (1982), which had reached a contrary conclusion, was rejected. The Court reasoned that a spouse is equivalent to any other witness who may be compelled to testify under GCR 1963, 506. A contrary conclusion would broaden the spousal privilege and "contravene[ ] the principle that the court should employ all rational means for ascertaining the truth.” It was also noted that little marital harmony probably remained in this case since divorce proceedings were pending at the time of the incident and at trial. 127 Mich App 603-605.
II
The prosecution initially urges us to strike down MCL 600.2162; MSA 27A.2162 because it conflicts with MRE 601:
Unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules.
The prosecution maintains that the spousal privilege statute renders persons incompetent to testify merely because they are married. In contrast, MRE 601 states that every person is competent, except in very limited circumstances. Since a rule of evidence is at issue and the statute conflicts with a court rule, the statute must fall. MRE 101; MCR 1.104; Perin v Peuler (On Rehearing), 373 Mich 531, 540-543; 130 NW2d 4 (1964); People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). We reject this argument.
The spousal privilege is a product of ancient common-law rules of incompetency. As explained in Trammel v United States, 445 US 40, 43-44; 100 S Ct 906; 63 L Ed 2d 186 (1980):
The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath been resolved by the Justices that a wife cannot be produced either against or for her husband.” [Citations omitted.] This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal exis tence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife.
Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century.
See also People v Zabijak, 285 Mich 164, 175-176; 280 NW 149 (1938).
By 1846, Michigan had enacted laws which removed the absolute disqualification of spouses, while retaining the privilege of preventing spousal testimony. The present statute on witness competency provides in pertinent part:
No person shall be excluded from giving evidence on any matter, civil or criminal ... by reason of marital or other relationship to any party thereto .... [MCL 600.2158; MSA 27A.2158.]
MRE 601 reflects the substance of this statute.
It is more appropriate to describe the statutory spousal privilege as a true privilege, rather than a rule of incompetency. Trammel, p 44; McCormick, Evidence (2d ed), § 66, pp 144-145. See also People v Marble, 38 Mich 117, 122-123 (1878). Privileges are governed by common law, except as modified by statute or court rule. MRE 501. Since there is no court rule governing marital privileges, the statute controls.
The prosecution also urges us to abrogate the statutory spousal privilege under our rule-making authority. We recognize that the privilege has been sharply criticized, but decline the invitation to abrogate it. The modern justification for the privilege is the preservation of marital harmony which could be disrupted if spouses are required to testify for or against each other. Trammel, supra; Sykes, supra, 122. When faced with the opportunity to abrogate the spousal privilege in the federal courts, the United States Supreme Court retained it, but vested the privilege in the witness-spouse. Trammel, p 53. The Legislature has repeatedly reenacted the spousal privilege and broadened the exceptions thereto when deemed necessary. Given this longstanding history and the still-viable justification for the existence of the privilege, we limit our role to interpreting MCL 600.2162; MSA 27A.2162.
hi
A
We agree with the Court of Appeals that privileges should be narrowly defined and the exceptions thereto broadly construed:
Testimonial exclusionary rules and privileges contravene the fundamental principle that "the public . . . has a right to every man’s evidence.” As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all ra tional means for ascertaining truth.” [Trammel, p 50. Citations omitted.]
However, we cannot contort the unambiguous words of a statute beyond their plain and ordinary meaning. The intent of the Legislature, as expressed by the words used in the statute, is controlling.
This Court has interpreted the statutory spousal privilege on several occasions, although not in the particular factual context presented here. In People v Quanstrom, 93 Mich 254; 53 NW 165 (1892), defendant argued that his wife could not file a complaint against him for bigamy or testify against him. The spousal privilege statute at that time did not contain a specific exception for prosecutions for bigamy. However, the statute, as now, permitted spousal testimony "in cases . . . where the cause of action grows out of a personal wrong or injury done by one to the other.” The Quan-strom Court agreed that bigamy did not involve a wrong committed against the wife:
The language of the rule at common law was as broad as the language "personal injury” in our statute, and that language meant, and was held to mean, violence, either actual or constructive, to the person, and by a long line of decisions the wife was not allowed to give testimony in prosecutions for bigamy, or any other crime not involving personal violence or corporeal injury to her. ... A cause of action growing out of a personal wrong is one designed to protect or secure some individual right. The right, as well as the wrong, must pertain to the person. It must be one that is purely personal in its character, and in no sense can the exception here be said to embrace public wrongs, which are personal only in the sense that they wound the feelings or annoy or humiliate, but inflict no injury upon the person.
In the cases excluding the testimony of the wife, it is held that the legislature had imported into the statute the common-law rule, and that, before any departure from that rule . . . can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit. The clear weight of authority ... is against the admissibility of the testimony. If not a crime against her, it certainly is not a wrong which is personal to her. [Id., pp 256-257, 260. Emphasis added.]
In response, the Legislature amended the spousal privilege statute to except bigamy prosecutions. 1897 PA 212. However, the exception for suits "where the cause of action grows out of a personal wrong or injury done by one to the other” has not been modified.
Here, we must determine whether the state’s "cause of action” against defendant for murder and felony-firearm grew out of defendant’s kidnapping of Mrs. Love. The phrase "grows out of” indicates that the particular cause of action must be for the personal injury inflicted upon one spouse by the other. The prosecution’s cause of action for kidnapping grew out of the personal wrong inflicted upon Mrs. Love. The cause of action for murder and felony-firearm grew out of the personal injury inflicted upon Mr. McQueen. The fact that the three offenses occurred during the same criminal transaction is irrelevant to the determination of which cause of action grew out of which personal wrong or injury. This interpretation is consistent with Quanstrom’s requirement that the crime charged must have been committed against the witness-spouse to come within the "personal wrong or injury” exception.
B
The lower courts found State v Briley, supra, to be very persuasive authority. There, the defendant murdered his estranged wife’s male companion and then assaulted her with a gun. The defendant asserted his statutory spousal privilege to prevent his wife’s testimony concerning the murder. The New Jersey Supreme Court held that the privilege permitted the wife to testify on both the murder and assault charges.
Although Briley is factually similar, its result is distinguishable on the basis of the particular wording of the statute at issue. Rule 23(2) of the New Jersey Rules of Evidence provided in pertinent part:
The spouse of the accused in a criminal action shall not testify in such action . . . unless (a) such spouse and the accused shall both consent, or (b) the accused is charged with an offense against the spouse ... or (c) such spouse is the complainant. [NJS 2A:84A-17(2).]
Ms. Briley’s testimony concerning the assault perpetrated against her was clearly permitted un der subsection (c). As to the murder charge, subsection (b) permitted spousal testimony in any criminal action where the accused was charged with an offense against the spouse. Unlike MCL 600.2162; MSA 27A.2162, the New Jersey statute did not require that the criminal action be for the offense committed against the spouse. The Briley court interpreted the statute as requiring that the offense committed against the spouse be committed during the same criminal transaction as the offense for which the defendant was on trial. 53 NJ 505-507.
The Court of Appeals correctly noted that many jurisdictions permit a witness-spouse to testify concerning an offense committed against a third party where the defendant also committed an offense against the spouse during the same criminal transaction. See 36 ALR3d 820. The decisions are not unanimous, however. Like Briley, many cases are distinguishable because the spousal privilege statutes at issue are not identical to MCL 600.2162; MSA 27A.2162. In those jurisdictions where the spousal privilege has been abolished or is vested in the witness-spouse alone, the witness-spouse would be permitted to testify in any prosecution against the defendant-spouse, regardless of whether an offense was committed against her. Finally, several courts have disregarded the language of their spousal privilege statutes or rules, or justified admission of spousal testimony on other grounds.
The scope of any statutory privilege must ultimately be determined from the words of the statute. As the Briley court noted, relevant and competent spousal testimony should be admitted, as long as "no violence is done to the privilege as expressed in a statutory or judicial rule of evidence . . . .” 53 NJ 506.
C
Defendant properly asserted his spousal privilege at both the preliminary examination and trial to prevent Mrs. Love’s testimony concerning the murder and felony-firearm charges. Mrs. Love was the only witness who testified on these charges. Defendant did not testify. Thus, the admission of Mrs. Love’s testimony cannot be deemed harmless error. Defendant’s convictions for murder and felony-firearm must be reversed.
IV
A
Defendant argues that his conviction for kidnapping should also be reversed because his wife was compelled to testify against him. MCL 600.2162; MSA 27A.2162 does not address this issue. Case law from other jurisdictions again is not particularly helpful. Many states have statutes which specifically prevent spouses from being compelled to testify against one other. In those jurisdictions which vest the spousal privilege only in the witness-spouse, that spouse alone determines whether to testify. See Trammel, 445 US 53.
The Court of Appeals concluded that where the spousal privilege cannot be invoked to preclude spousal testimony, the witness-spouse can be compelled to testify like any other witness. We disagree. The spousal privilege recognizes that spouses are not ordinary witnesses when one is pitted against the other. For the reasons stated in Sykes, we hold that a witness-spouse who volunta rily refuses to testify for or against the other spouse cannot be compelled to testify:
The existence of the spousal privilege has been justified on the basis of the need to preserve marital harmony, which could be disrupted by requiring one spouse to testify for or against the other spouse when the nontestifying spouse does not consent to such testimony. However, where the cause of action grows out of a personal injury or wrong done by one spouse to the other there is no just reason for preventing the victim-spouse from testifying. In such a case, the need to preserve marital harmony is no longer compelling; presumably the wrong or injury has already disrupted such harmony. It is for these reasons the statute expressly provides that the "spousal privilege” does not apply where the cause of action grows out of a personal wrong or injury done by one spouse to the other.
This exception was carved out for the benefit of the victim-spouse who wishes to testify regarding such a wrong or injury. We hold that the statutory exception to the spousal privilege is a permissive one. It allows the victim-spouse to testify against the defendant-spouse if the victim so desires. We do not interpret the exception to require the victim-spouse to testify against the defendant-spouse when the cause of action grows out of a personal injury or wrong done by the defendant to the victim. Although there is a presumption that marital harmony no longer exists when one spouse injures another, this is not conclusive. If the victim-spouse does not want to testify, and there is no indication that such a reluctance stems from fear of the defendant, some marital harmony may still exist between the parties. This is what the marital privilege statute aims to protect, and the statute’s purpose should not be undercut by interpreting the exception as requiring the victim’s testimony. [117 Mich App 122-123.]
B
Mrs. Love unequivocally indicated at trial that she did not wish to testify. There is no allegation or indication that her refusal stemmed from her fear of the defendant. The trial court should not have compelled her to testify.
The Court of Appeals and the prosecutor during oral arguments before this Court stated that Mrs. Love also did not wish to testify at defendant’s preliminary examination. However, the examination transcript and the Recorder’s Court record do not affirmatively show such an objection. If Mrs. Love voluntarily testified at the examination, her recorded testimony would have been admissible at trial as substantive evidence pursuant to MRE 804(b)(1). In this event, defendant’s conviction for kidnapping must be affirmed since Mrs. Love’s testimony at both proceedings was substantially identical.
If Mrs. Love indicated before or at the examination that she did not wish to testify, and the refusal did not stem from her fear of the defendant, she should not have been compelled to testify. In that event, defendant’s conviction for kidnapping must be reversed. Mrs. Love was the only prosecution witness who testified concerning that offense at both proceedings._
V
Defendant’s convictions for second-degree murder and felony-firearm are reversed. The case should be remanded to the Recorder’s Court for a determination of whether defendant’s wife voluntarily testified at the preliminary examination. At the conclusion of the hearing, defendant’s conviction for kidnapping should be affirmed or reversed accordingly.
Levin, J., concurred with Cavanagh, J.
MCL 750.317; MSA 28.549.
MCL 750.227b; MSA 28.424(2).
MCL 750.349; MSA 28.581.
As will be more fully discussed, the record is unclear as to whether Mrs. Love voluntarily testified at the preliminary examination.
MCL 600.2162; MSA 27A.2162 also contains the "marital communications” privilege. This privilege prevents examination as to any confidential communication made by one spouse to the other during the marriage, unless both spouses consent. Unlike the spousal privilege, the marital communications privilege may be asserted after the marriage has ended, as long as the communication was made during the marriage. Wadkins, p 330. This privilege is not at issue here since Mrs. Love only testified regarding acts committed by defendant in her presence.
A similar conclusion was reached in People v Vieau, 136 Mich App 670; 357 NW2d 736 (1984).
GCR 1963, 506.1 provided that a trial court may order any witness to testify. If the witness refuses to testify regarding any noñprivileged matter, the refusal may be considered a contempt of court. GCR 1963, 506.6(1). See now MCR 2.506(A)(1), (E)(2).
See 1846 RS, ch 102, §§ 99,102.
See Trammel, pp 44-45, 51-53, and authorities cited.
1857 CL 4339, 4342; 1871 CL 5966, 5969; How Stat 7543, 7546; 1897 CL 10210, 10213, 10214; 1915 CL 12551, 12555; 1929 CL 14217, 14221; 1948 CL 617.63, 617.67.
1869 PA 84 added a lengthy exception for actions involving title to property. 1885 PA 211 added the "personal wrong or injury” exception. In response to People v Quanstrom, 93 Mich 254; 53 NW 165 (1892), prosecutions for bigamy were excepted by 1897 PA 212. 1915 PA 314, ch xvii, § 67, added suits for divorce. 1939 PA 82 added an exception for crimes committed against the children of either or both spouses.
In People v Marble, 38 Mich 117 (1878), defendant wife aided and abetted an assault upon her husband and the murder of the husband’s companion. The husband was permitted to testify against his wife as to the murder since their marriage had ended prior to trial.
In People v Zabijak, 285 Mich 164; 280 NW 149 (1938), the defendant was tried for the murder of his mother-in-law. The defendant’s wife was permitted to testify as to threats made by the defendant against her and her mother since the defendant and his wife were divorced prior to trial and the threats were not confidential communications.
In People v Clarke, 366 Mich 209; 114 NW2d 338 (1962), the defendant’s wife signed a complaint and testified against him for taking indecent liberties with a minor child. The child had resided with the defendant and his wife, but was not their child. The Clarke Court reversed the defendant’s conviction because the spousal privilege statute only excepted prosecutions involving the child of either or both spouses.
The Briley court also required that the defendant be formally charged with the offense committed against the spouse, although it was not necessary that the defendant be tried for the offense committed against the third person. Id. Cf. State v Eason, 138 NJ Super 249; 350 A2d 506 (1975) (wife could not testify concerning murder of third person since defendant was never formally charged with a crime committed against his wife).
See, e.g., Jenkins v State, 191 Ark 625; 87 SW2d 78 (1935); Grier v State, 158 Ga 321; 123 SE 210 (1924); State v Manning, 657 SW2d 301 (Mo App, 1983); Robbins v State, 82 Tex Crim App 650; 200 SW 525 (1918); Young v State, 603 SW2d 851 (Tex Crim App, 1980); Zamora v State, 692 SW2d 161 (Tex App, 1985); Jenkins v Commonwealth, 219 Va 764; 250 SE2d 763 (1979), limited in Brown v Commonwealth, 223 Va 601; 292 SE2d 319 (1982); State v Woodrow, 58 W Va 527; 52 SE 545 (1905).
See 2 Wigmore, Evidence (Chadbourn rev), § 488, n 1, pp 657-696, for summary of spousal privilege statutes and rules.
For example, California’s privilege statute specifically requires spousal testimony in prosecutions for "[a] crime against the person ... of a third person committed in the course of committing a crime against the person ... of the other spouse . . . .” California Evidence Code, § 972(e)(2); Fortes v People, 113 Cal App 3d 704; 170 Cal Rptr 292 (1980). Thus, People v Ford, 60 Cal 2d 772; 36 Cal Rptr 620; 388 P2d 892 (1964), cert den 377 US 940 (1964), and its progeny, which construed the predecessor of § 972(e)(2), are distinguishable.
In Alaska, the trial court is given the discretion to relax or dispense with evidentiary rules where strict adherence would work an injustice. Alas R Crim P 53; Loesche v State, 620 P2d 646 (Alas, 1980).
See, e.g., State v Mowery, 1 Ohio St 3d 192; 438 NE2d 897 (1982), cert den 466 US 940 (1984); State v Thompson, 88 Wash 2d 518; 564 P2d 315 (1977). In each case, the dissent criticized the majority’s failure to interpret the spousal privilege statute or rule as written.
In People v McGregor, 635 P2d 912 (Colo App, 1981), the court followed Trammel and vested the spousal privilege in the witness-spouse. The states are not bound to follow Trammel, however, since it involved the spousal privilege in federal courts.
Several cases have broadly construed the requirement that the offense be committed against the witness-spouse to include crimes committed against the spouse’s child or immediate family. See, e.g., State v Crow, 104 Ariz 579; 457 P2d 256 (1969), overruled on other grounds State v Burchett, 107 Ariz 185; 484 P2d 181 (1971); O’Loughlin v People, 90 Colo 368; 10 P2d 543 (1932); State v Kollenborn, 304 SW2d 855 (Mo, 1957).
Other cases justify admission on the grounds that the offenses committed against the witness-spouse and third party were so temporally connected as to be part of the res gestae. See, e.g., Miller v State, 78 Neb 645; 111 NW 637 (1907); Willard v State, 682 SW2d 686, 690 (Tex App, 1984), criticized in Zamora, supra. See also Maiben v State, 405 So 2d 87, 90 (Miss, 1981).
See statutes compiled in Wigmore, supra, § 488, n 1, pp 657-696.
Although Briley held that a witness-spouse could be compelled to testify, 53 NJ 509, that holding is dicta because Mrs. Briley testified voluntarily.
MRE 804(b) provides:
Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness;
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
A witness is unavailable where exempted on the ground of privilege from testifying concerning the subject matter of a statement. MRE 804(a)(1). | [
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The certification by the Court of Appeals pursuant to Administrative Order 1984-2 that its decision in these cases conflicts with its decision in Paprocki v Jackson Co Clerk, 142 Mich App 785 (1985), is considered and, in the absence of an application for leave to appeal, the Supreme Court declines to take further consideration of the question presented. Reported below: 151 Mich App 754. | [
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The motion by defendants-appellants for clarification is considered and the opinion and judgment of March 28, 1986, is amended, effective that date, to add the sentence: "The injunction entered December 2,1985, is dissolved.”
Brickley, Riley, and Archer, JJ.,
state:
While we agree that dissolution of the injunction is a necessary consequence of the Court’s decision, in light of our dissent we do not participate in this order. | [
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Brickley, J.
The facts of this case are set forth in the opinion of Justice Archer. The issue presented is whether the Legislature intended the Civil Rights Act to prohibit employers from having "no-spouse rules” in their personnel policies. We recently held that antinepotism policies which prohibit "any relatives (natural or through marriage)” of a current employee from being hired do not constitute discrimination on the basis of marital status. Miller v C A Muer Corp, 420 Mich 355; 362 NW2d 650 (1984). We believe the reasoning in Miller compels a like result in this case.
At issue in Miller and Lowry v Sinai Hospital, a companion case, were employer’s personnel policies which prohibited related employees from working for the same employer at the same restaurant (CA Muer) or in the same department (Sinai Hospital)- The C. A. Muer policy applied to "any relatives (natural or through marriage)” and the Sinai Hospital policy applied to "parents, children, siblings, spouses, grandparents, and legal guardians.” 420 Mich 364. In Miller, plaintiff worked as a waiter at defendant’s restaurant when he became engaged to an employee of the same restaurant. When the employer learned of the engagement, it informed Miller that he would be required to choose between quitting his employment, being discharged, or being transferred to another restaurant operated by Muer. In Lowry, plaintiff worked as a security guard at Sinai Hospital. After she married a co-worker who was also a security guard, her employer informed her that policy required one of them to leave the employment or transfer to another department. 420 Mich 358-359.
The question in this Court was whether these policies impermissibly discriminated on the basis of marital status within the meaning of the Civil Rights Act. We began our analysis by noting that the term "marital status” is not defined in the act. Various definitions of the term were offered:
It has been said that the term means "whether one is married or not married,” ... or "the social condition enjoyed by an individual by reason of his or her having participated or failed to participate in a marriage.” . . . The usual answer to a query about one’s marital status is "married,” "single,” "divorced,” "widowed,” or "separated.” . . . The relevant inquiry is if one is married rather than to whom one is married. [420 Mich 361-362. Emphasis in original. Citations omitted.]
After observing the split of authority on this issue in other jurisdictions, we went on to discuss the purposes of the act. One of the goals is to "prevent discrimination against a person because of stereotyped impressions about the characteristics of a class to which the person belongs.” 420 Mich 362-363. The Michigan act is aimed at the prejudices and biases borne against persons because of their membership in a certain class and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Id.
We opted for a narrow definition of the term "marital status”:
By including marital status as a protected class, the Legislature manifested its intent to prohibit discrimination based on whether a person is married. To include the identity, occupation, and place of employment of one’s spouse within the definition of "marital status” might enlarge the protected class to include all married persons who desire to work with their spouse. Such a construction would invalidate most antinepotism policies.
We declined to speculate whether such personnel policies are sound, but instead found that they did not reflect offensive or demeaning stereotypes, prejudices, or biases. We concluded:
Absent a more specific manifestation of legislative intent, we conclude that the prohibition of employment discrimination on the basis of "marital status” was not meant to protect a right to be employed in the same department as one’s spouse. [420 Mich 364.]
We believe the result and reasoning of Miller compels the conclusion that Whirlpool’s policy does not violate the Civil Rights Act. The most obvious reason for this conclusion is that the employer, under Miller, can lawfully prohibit any relative from working in the plant if related to another already there. The. lawful conduct of not allowing relatives to work together should not become unlawful merely because certain relatives are so allowed.
Also, this is not discrimination on the basis of marital status. It is different treatment based on the fact that one’s spouse works in the same place as the applicant. Marital status is irrelevant to the employer unless there is a spouse already working for the employer. This is not discrimination based on a stereotypical view of the characteristics of married or single persons.
The question here is one of legislative intent, and we do not believe the Legislature intended to so severely regulate employers’ personnel policies so as to prohibit no-spouse rules. If the lawmakers did intend such a change, then their intent must be manifested more clearly.
The dissent partially bases its conclusion on the assumption that the "determination of whether an applicant’s spouse works [at the same place] necessarily involves an inquiry into the marital status of the prospective employee.” Post, p 541. As noted by the dissenters, §206(2)(a) forbids an employer from making an inquiry as to the marital status of an applicant. They conclude from these two premises that the no-spouse rule violates the statute.
We do not believe this reasoning is sound. Under this rationale an employer could arguably retain a no-spouse rule, if it chose to enforce the rule by means other than inquiring into the applicant’s marital status.
We believe Miller mandates the conclusion that the Legislature did not intend to include no-spouse rules among the conduct constituting discrimination on the basis of marital status.
The Court of Appeals here followed pre-Miller authority in concluding that the no-spouse rule is facially discriminatory on the basis of marital status and thus did not address appellee’s claim that the rule discriminates on the basis of sex. We noted in Miller that "[a] facially neutral employment practice can operate as a mask or pretext for impermissible discrimination.” 420 Mich 365.
We believe that many of the factual arguments asserted by appellees in attempting to distinguish the policies in Miller from the employment policy in the present case, with regard to the marital status discrimination issue, actually are more related to the underlying sex discrimination claim. The arguments challenging the soundness and necessity of Whirlpool’s policy, for example, would not seem relevant to the primary statutory issue presented. Likewise, the fact that Whirlpool does not also base employment decisions on other familial relationships, or that it does not prohibit the employment of applicants "living with” current employees, would also seem irrelevant. Yet, these arguments could raise the inference that the "no-spouse” rule involved in this case may be intended to discriminate against women.
Reversed and remanded to the Court of Appeals for consideration of the sex discrimination claim.
Williams, C.J., and Levin and Riley, JJ., concurred with Brickley, J.
Such an expansive construction of "marital status” would also include in the protected class an employee whose wife is the chief executive officer of his employer’s major competitor. We do not wish to be understood as saying that an employer should not hire a close relative of one of its competitors’ employees; we conclude only that the Legislature did not require an employer to make all personnel decisions without regard to the identity of an employee’s spouse. [Citations omitted. Emphasis in original.]
Moreover, we believe that in the great majority of cases it will be possible for an employer to determine whether an applicant’s spouse is already employed at the same place without inquiring about marital status. The employer could simply ask: "Do you have a spouse that currently works for this company?” A "no” answer to this question does not reveal the marital status of the prospective employee to the employer. While a "yes” answer does reveal the applicant’s marital status, it is the only instance in which the marital status of the applicant will be revealed, and the information clearly sought is not marital status, but whether the spouse, if there is one, works for the same employer. | [
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The certification by the Court of Appeals pursuant to Administrative Order 1984-2 that its decision in this case conflicts with its decision in McFetridge v Chiado, 116 Mich App 528 (1982), is considered and, in the absence of an application for leave to appeal, the Supreme Court declines to take further consideration of the question presented. Reported below: 149 Mich App 196. | [
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Levin, J.,
joins in denying the petition for rehearing because it is his understanding of the opinion of the Court that the Court decided only that the State Boundary Commission did not err in failing to exempt Shelby Township on the basis that "any water or sewer service” was provided, and accordingly all of "Shelby’s other claims” that the commission erred, including those adverted to in the petition for rehearing, are to be resolved by the circuit court on remand pursuant to the last sentence of the opinion of the Court. | [
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The Court orders that a special panel shall not be convened pursuant to MCR 7.215(J) in this case. | [
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