text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Levin, P. J.
The plaintiff, an automobile liability insurer, seeks a declaratory judgment that its insured is not covered for a particular loss. It appeals from a judgment declaring that under the terms of the policy and on the facts presented the loss is covered.
The question concerns the applicability of a policy provision excluding liability as to “any automobile while operated in any pre-arranged race or speed contest.”
The defendant’s son, age 17, was driving the insured vehicle with his father’s permission. Shortly before the accident the son wagered $3 with two other young men that from a standing start he could drive the vehicle along a two-mile stretch of public highway within an elapsed time of 2 minutes and 15 seconds. While being timed, he accelerated his vehicle and soon attained a speed in excess of 70 miles per hour. He noticed a child in the road, applied the brakes, skidded and struck the child, causing her death. He subsequently was convicted of negligent homicide on his plea of guilty.
The plaintiff insurer contends that what occurred was a “pre-arranged race or speed contest” within the meaning of the policy and cites Alabama Farm Bureau Mutual Casualty Insurance Co. v. Goodman (1966), 279 Ala.538 (188 So 2d 268). There the Alabama Supreme Court held that an exclusion from coverage of injury or damage “caused by an automobile race or competitive speed contest” eliminated coverage as to a race between an automobile and a bicycle.
The defendant insured responds that the policy provision in the Alabama case did not contain the word “pre-arranged,” as does the policy in this case, and relies on Country Mutual Insurance Company v. Bergman (1962), 38 Ill App 2d 268 (185 NE2d 513), where the exclusion was of “any prearranged race or competitive speed contest” and where, in holding that the coverage of the policy applied to a race between two automobiles on a public highway, the Illinois Court of Appeals declared (p 517):
“If the plaintiff had intended to exclude an automobile while being operated in ‘any race or speed test’ it would have been very easy to so provide. Rather, it has seen fit to confine the exclusion to a race which is ‘pre-arranged’ and a speed test which is ‘competitive’.”
The Illinois Court of Appeals also relied on the fact that the exclusionary language in that case appeared as part of a provision which excluded from coverage an automobile while used as a “public or livery conveyance” (first clause) and “while rented or leased” (third clause) from which the Court inferred that the entire provision concerned business or commercial ventures, and, thus, that the second clause, use of an automobile while being operated in any “pre-arranged race or competitive speed contest,” also concerned only a transaction within the same general subject of commercial activity. The trial judge in the Illinois case had ruled that the “exclusion refers solely to prearranged races or tests of speed such as stock car races or sports car races on a regularly laid-out track and set at a specified time, and that said exclusion in law refers only to automobiles operated in such a sports contest for which profits, awards and gains are available to the winner.”
In construing the exclusion before us we keep in mind the function of liability insurance. Its purpose is to protect the automobile owner not only from liability for his own negligence but also from liability under the civil liability act for the negligence of others who drive his automobile with his permission. Unfortunately, drag racing on the public highways is a pastime indulged in by many youngsters. Like the Illinois Court of Appeals, we have examined the other exclusions in the policy; none of the other use exclusions appear to expose the owner to such a ruinous liability arising from what is, in many cases, an unprecedented and unpredictable teenage frolic. If this commonplace expo sure of parents and other entrustors of automobiles is to be excluded from coverage the policy should, we think, speak more clearly than the one before us.
For the reasons stated, we have concluded that the exclusion in the policy for a “prearranged race or speed contest” describes a race or speed contest which has been more elaborately planned than the impulsive, spur-of-the-moment race against time which occurred in this case.
Affirmed. Costs to defendants.
All concurred.
7 Blashfield, Automobile Law and Practice, § 292.7, p 219.
MOLA § 257.401 (Stat Ann 1968 Eev §9.2101).
Except for the use restrictions applicable to non-owned automobiles, the only other use restrictions in the policy are expressly inapplicable to the “named insured.”
See Vanderlaan v. Educators Mutual Insurance Company (1959), 356 Mich 318, 323 (“In determining the meaning of ‘traveling as a passenger’ as used in the policy, we must look to all of its related provisions.”); Kalamazoo Auto Sales Co. v. Travelers Insurance Co. (1924), 227 Midi 74, 80 (“The policy is to be considered in its entirety and if it is ambiguous must be construed most strongly against defendant, having been prepared by it.”); Barney v. Preferred Automobile Insurance Exchange (1927), 240 Mich 199, 200 (“Viewing the contract in its entirety, with its various qualifying provisions, we are persuaded that the clause in question is at least obscured to ambiguity tincturing its provisions.”). Cf. Connecticut Indemnity Company v. Nestor (1966), 4 Mich App 578.
There are countless statements that liability exceptions or exclusions are to be strictly construed against the insurer. See Pawlicki v. Hillenbeck (1930), 250 Mich 38, 43; Bernadich v. Bernadich (1938), 287 Mich 137, 142; Shelby Mutual Insurance Co. v. United States Fire Insurance Company (1968), 12 Mich App 145, 149. See, also, Hooper v. State Mutual Life Assurance Company of Worcester, Massachusetts (1947), 318 Mich 384; Farm Bureau Insurance Company of Michigan v. Pedlow (1966), 3 Mich App 478, 486; Utter v. The Travelers’ Insurance Company (1887), 65 Mich 545.
See Francis v. Scheper (1949), 326 Mich 441, 447, 448 (“It was incumbent on defendant casualty company, who drafted the poliey, in order to escape liability under the circumstances of this ease, so to draft the poliey as to make clear the extent of nonliability under the exclusion clause.”); similarly, see Century Indemnity Company v. Schmick (1958), 351 Mich 622, 627; New York Life Insurance Co. v. Modzelewski (1934), 267 Mich 293, 296; Allor v. Dubay (1947), 317 Mich 281; Griffin v. General Casualty Surety Co. (1925), 231 Mich 642, 646, 647; Leski v. State Farm Mutual Automobile Insurance Company (1962), 367 Mich 560, 567; Farm Bureau Insurance Company of Michigan v. Pedlow, supra. | [
-57,
8,
12,
-10,
37,
15,
34,
0,
5,
-21,
-3,
-5,
30,
9,
2,
-21,
-19,
6,
-13,
11,
-17,
3,
-46,
-23,
-19,
-39,
54,
-68,
1,
55,
30,
-4,
-60,
28,
-51,
44,
17,
28,
-35,
51,
13,
-45,
-5,
7,
-2,
-37,
19,
-14,
18,
22,
-11,
-35,
-5,
0,
-28,
40,
48,
51,
-43,
-3,
4,
-40,
66,
-3,
14,
20,
16,
40,
30,
21,
-17,
-22,
-27,
32,
-15,
-10,
40,
62,
7,
-14,
-6,
-1,
50,
-64,
19,
37,
-43,
-21,
-30,
-55,
-53,
-22,
-49,
-85,
-41,
-14,
-22,
0,
-13,
-14,
18,
-65,
21,
2,
-59,
75,
-21,
-51,
-4,
50,
28,
7,
-19,
-40,
29,
4,
-38,
35,
67,
17,
-22,
-34,
29,
31,
-51,
2,
-17,
-30,
-61,
6,
-2,
37,
39,
43,
40,
-16,
-3,
-10,
-37,
-9,
4,
-17,
-6,
16,
9,
37,
60,
-15,
-33,
4,
18,
20,
-68,
-47,
-13,
-63,
-12,
-78,
59,
-12,
-20,
-5,
10,
71,
-38,
-20,
-43,
-21,
23,
28,
-15,
-63,
61,
-24,
21,
-7,
35,
-56,
-40,
30,
-45,
20,
42,
17,
7,
-34,
3,
42,
-21,
20,
29,
-48,
-29,
4,
-1,
2,
23,
34,
-43,
-7,
37,
-42,
-29,
-43,
5,
0,
-69,
-28,
-20,
-42,
20,
11,
-35,
-11,
-11,
0,
34,
-41,
-18,
-52,
-29,
-9,
14,
-46,
-18,
-55,
-102,
-37,
24,
52,
44,
21,
-12,
20,
-24,
-6,
3,
-76,
14,
48,
111,
34,
31,
-5,
25,
36,
-8,
15,
17,
-29,
17,
-26,
35,
28,
14,
-21,
4,
16,
-4,
22,
-11,
88,
-19,
-15,
83,
36,
-3,
-57,
15,
-58,
-29,
-56,
-6,
-11,
17,
-80,
24,
4,
2,
-14,
10,
52,
-29,
-37,
-91,
-22,
47,
-23,
7,
-11,
4,
-12,
57,
-8,
-1,
17,
65,
19,
-29,
34,
65,
37,
37,
-9,
12,
-47,
0,
-52,
-7,
3,
-45,
-9,
-12,
-17,
64,
-14,
-12,
-38,
30,
0,
13,
-6,
-24,
8,
0,
-41,
11,
-48,
3,
34,
-18,
28,
21,
-3,
48,
-91,
-18,
2,
5,
54,
-39,
5,
21,
11,
25,
23,
46,
20,
11,
1,
-57,
30,
-10,
-66,
-17,
21,
75,
-16,
-35,
8,
-14,
-18,
3,
16,
-10,
-16,
17,
55,
-58,
47,
48,
-21,
11,
-17,
52,
-41,
4,
86,
-19,
26,
-12,
-1,
-2,
-63,
17,
26,
-16,
3,
7,
15,
-44,
-11,
21,
38,
23,
19,
2,
11,
0,
8,
30,
2,
-74,
-72,
-1,
27,
33,
-14,
-50,
-24,
-62,
-12,
39,
0,
25,
52,
6,
-30,
-55,
-29,
-5,
37,
12,
-5,
-32,
-29,
26,
14,
-5,
-12,
19,
-15,
-27,
-38,
18,
29,
5,
-66,
1,
-9,
-33,
24,
-27,
0,
-6,
12,
-36,
-2,
8,
1,
62,
5,
0,
-14,
-50,
-33,
5,
19,
-51,
-8,
-25,
-17,
43,
-41,
-2,
-40,
-68,
-3,
55,
-79,
-17,
-25,
-44,
14,
36,
14,
-60,
-11,
-25,
-26,
-87,
19,
11,
-23,
-6,
-11,
-50,
30,
34,
-5,
2,
-7,
-36,
-1,
-24,
-19,
32,
22,
-32,
-18,
-32,
20,
25,
11,
14,
-36,
-31,
-47,
-27,
-60,
23,
42,
31,
44,
92,
33,
-24,
13,
11,
-42,
-8,
-6,
-64,
-21,
-7,
-45,
-49,
-6,
26,
-37,
82,
43,
57,
-41,
-16,
17,
-4,
44,
2,
11,
-24,
91,
-31,
10,
-47,
-48,
38,
14,
67,
-49,
58,
-37,
13,
-35,
4,
-8,
19,
-23,
-23,
-7,
27,
41,
7,
-4,
29,
0,
-4,
-10,
54,
-18,
-103,
2,
14,
-39,
-26,
13,
43,
52,
-10,
2,
-28,
51,
-43,
12,
3,
-6,
-6,
32,
24,
-51,
42,
29,
39,
24,
32,
16,
14,
5,
-32,
-15,
19,
13,
-24,
5,
40,
18,
-20,
-1,
8,
-4,
7,
29,
-19,
-2,
-8,
-23,
1,
10,
50,
-25,
-11,
14,
-3,
70,
-18,
30,
22,
104,
21,
0,
13,
-25,
-68,
-81,
-20,
-61,
-1,
102,
-30,
20,
-7,
18,
66,
8,
30,
-19,
-22,
22,
7,
-14,
-55,
16,
-56,
-71,
-19,
3,
-50,
-2,
-57,
14,
19,
-58,
-6,
29,
19,
7,
23,
-14,
-6,
23,
12,
8,
47,
47,
33,
61,
-8,
44,
-4,
71,
-12,
-10,
-18,
1,
68,
17,
-2,
-3,
83,
-47,
19,
60,
22,
-39,
26,
-20,
45,
-39,
-31,
-29,
-35,
-4,
21,
-7,
-31,
17,
4,
-26,
43,
23,
5,
0,
24,
-10,
-12,
9,
13,
4,
-69,
-28,
41,
-58,
19,
6,
-2,
59,
73,
0,
7,
-1,
19,
-31,
-42,
29,
15,
35,
102,
-43,
16,
-4,
-14,
38,
87,
37,
-88,
-4,
-26,
24,
48,
1,
-7,
-29,
29,
-53,
-14,
-16,
17,
51,
16,
-62,
-18,
-3,
31,
-4,
-21,
-14,
1,
42,
65,
-66,
48,
-31,
-1,
-40,
-2,
22,
-45,
-71,
-64,
8,
16,
19,
46,
27,
-50,
-8,
8,
-31,
-11,
-17,
35,
78,
18,
-9,
2,
3,
-28,
14,
23,
-7,
29,
33,
14,
6,
-26,
8,
29,
17,
43,
-69,
-27,
1,
5,
-35,
-38,
8,
40,
37,
-48,
-20,
10,
55,
-41,
-57,
1,
0,
-29,
-49,
57,
-28,
27,
-10,
13,
25,
-2,
70,
77,
-13,
-54,
-32,
41,
18,
-34,
35,
20,
-11,
-65,
-6,
30,
28,
3,
-65,
25,
-12,
24,
-48,
5,
-33,
-5,
12,
6,
-67,
-14,
6,
19,
17,
2,
65,
-4,
-51,
6,
66,
-10,
-25,
-22,
43,
-27,
-5,
19,
2,
39,
-45,
-8,
39,
-74,
-58,
-45,
-17,
-42,
16,
35,
-24,
19,
2,
-28,
-14,
-67,
60,
62,
-43,
-6,
-2,
-57,
9,
-44,
0,
6,
-43,
-62,
-8,
4,
-6,
51,
-20,
54,
51,
-22,
-9,
-16,
39,
1,
-27,
-16,
-30,
-2,
5,
34,
-11,
23,
1,
7,
6,
-13,
13,
57,
-14,
-57,
30,
-37,
60,
24,
0,
-29,
14,
-27,
-34,
43,
-7,
-45,
0,
53,
17,
-13,
31,
10,
24,
-40,
34,
40,
29,
44,
46,
-15,
-6,
70,
-4,
50,
-1,
-47,
19,
0,
37,
-15,
-31,
6,
-12,
32,
-12,
-53,
-60,
-44,
-4,
36,
8,
-46,
-58,
-53,
17,
0,
24,
-26,
4,
-13,
22,
32,
-21,
-4,
56,
-8,
4,
-6,
19,
28,
21,
-7,
10,
-1,
-19,
20,
17,
-8,
40,
-34,
-13,
0,
42,
-9,
-3,
-23,
-96,
34,
66,
6,
-6
] |
Hooker, J.
Upon the conclusion of the testimony offered upon behalf of the defendants, the court directed a verdict for the plaintiff, upon the ground that the evidence was insufficient to justify a finding by the jury that Benjamin was the plaintiff’s agent, which was necessary to the defense sought to be made. Error is assigned upon the charge.
The action was brought upon some promissory notes made by the defendants, payable to the order of the Electrical Outfitting Company, and indorsed in the name of said company by E. O. Benjamin, treasurer. By way of defense, the defendant Henry S. Bauch testified that the defendants were engaged in furnishing electric light in White Cloud, and that Benjamin was at his place in August, 1895, to sell him a dynamo, and that “he claimed to be representing the plaintiff in this case, as its agent.” The witness stated further that an oral agreement was then and there made for a new dynamo, for which the defendants were to pay $680, of which $300 was to be cash, to be paid after 30 days’ trial. He stated further that Benjamin said that he would put part of the bargain in writing, so that the factory could go to work on the machine at once, when he got home, and that he would make two contracts, typewritten, and send them to defendants to sign. This memorandum was signed by the defendants, but not by Benjamin, and was not produced. Soon after, the defendants received a writing from Benjamin, as follows:
“Electrical Outfitting Co.,
“Manufacturers’ Agents.
“Dealers in
“Dynamos, Motors, Combination Ventilating Fans, etc.
“Estimates for Complete Lighting Plants.
“Office, 194 Griswold street.
“Detroit, Mich., August 15, 1895.
“Messrs. H. S. Rauch & Bro.,
“White Cloud, Mich.
“ Gentlemen: We propose to furnish you one 500-light dynamo, etc., manufactured by the Fontaine Crossing & Electrical Co. [ Here follow specifications of machine, guaranty, and amount of price and manner of payment.]
“Respectfully submitted.
“Electrical Outfitting Co.,
“E. O. Benjamin, Treas. & Manager.”
No response appears to have been made to this, and after a time the machine was delivered.
Considerable correspondence passed between the defendants and the Electrical Outfitting Company. On September 10th, the Outfitting Company wrote to the defendants, explaining a delay, and saying, “If you intend sending your old machines to us for sale, do so as soon as you can, as we have places in view where we think we can sell them;” and it is apparent from the correspondence that they were sent to the Outfitting Company. On October 3, 1895, the Electrical Outfitting Company wrote that, “We inclose you bill for dynamo, along with the three notes;” asking signature, and a remittance of check for $300, with the notes. On October 5th defendants reply, in a long letter, complaining of a failure of the machine to work, and expressing a willingness to settle as soon as the machine should work according to contract. Thereupon Benjamin wrote that he would go to White Cloud and see about it, and he did so; and upon his representation that the manufacturer was responsible, and would certainly make the machine all right, a check for $300 was given, and the notes were signed and delivered to Benjamin. Other correspondence was had about the old machines as late as October 28th. On November 8th the defendants began a correspondence with the plaintiff. Their first letter says: “We are sorry to say that the machine bought through your agent, Benjamin, does not give satisfaction.” After a description of the working of the- machine, the letter concludes: “Please advise us what course you will pursue, at once.” Plaintiff, by Mr. Fuller, answered, saying: “I have just been talking with Mr. Benjamin,” etc. “I would say that I, always endeavor to please purchasers of our machinery, and would like to do so in this case, and have, at our expense, sent Mr. Benjamin to your mill on two different times.” The letter also contained a proposition to send a man to instruct defendants, at their expense if the machine should work well, and, if not, at the plaintiff’s expense. A man was sent on one or two occasions, and finally another and larger machine was sent, as the result of a long correspondence, of which the following letters were part:
“January 13, 1896.
“H. S. Rauch & Bro.,
“White Cloud, Mich.
“Gentlemen: On the return of our Mr. Rumsey, we are informed yon desire us to make a price on a 25 K. W. 250-volt dynamo; also, on a 25 K. W. 125-250 volts or double machine. We will exchange you a 250-volt machine for the one you now have at 116 volts; you paying freight on machines. That is, we deliver 250-volt machine f. o. b. cars Detroit; you deliver 116-volt machine to us f. o. b. cars Detroit. If you desire a double-voltage machine, we will exchange for the one you now have on ■the same conditions as above; you paying us $50 extra on this type of machine.
“In this matter, you understand, we supplied you with just what we were ordered to build; that is, an ordinary lighting machine. Our knowledge of what sort of wiring you had in service was not in question with us, as we simply built to order, on contract. Whatever verbal conversation you had with Mr. Benjamin relating to your distribution of current was entirely unknown to this company. You, of course, understand that, if a boiler-maker got an order for a boiler to sustain 125 pounds of steam, it would not be the correct thing to attempt to carry 25 6 pounds of steam on such a boiler. In other words, you must know that — When you contracted for a dynamo, you certainly, with your knowledge of electricity, must have known what voltage you ordered on contract. Please let me hear from you in regard to which machine you require.
“Yours truly,
“R. Fuller.”
“White Cloud, Jan. 15, 1896.
“Fontaine Crossing & Electrical Co.,
“Detroit.
“ Gentlemen: Yours of 13th at hand. In answer to same, you make us propositions on 2 machines. We wish to know if the 25 K. W. 250-volt machine is made of steel, or cast iron. Also, what heft the machine is, and what speed it must run at full load. Also, can you guarantee the proposed machine to not heat or spark, to do damage to commutator, or cause melting out of any parts of same ? Also, is the proposed machine double compound wound, automatic in its adjustments from one light to full load if speed of dynamo is regular ? Please advise at once. Yours respectfully,
“H. S. Rauch & Bro.”
“ January 16, 1896.
“H. S. Rauch & Bro.,
“White Cloud, Mich.
“ Gentlemen: In reply to yours of the 15th inst.: We will supply the 250-volt 25 K. W. machine as stated in my letter of the 13th inst. This machine is cast iron, and its weight is from 3,500 to 3,900 lbs. The machine will be compound wound, and automatic in its action under any load, providing the revolutions of its armature are kept constant. The machine we guarantee to operate without undue heating or sparking, when operator properly adjusts its brushes, and keeps the same clean. The speed of this machine is from 1,200 to 1,400 revolutions per minute, as it is impossible to state the exact speed of machinery that is automatic until such machine is built and tested.
‘ ‘ In relation to a machine being double compound 'wound: This is only done in case of a double-voltage machine. If you require a double-voltage machine, our price, as before stated, will be $50 extra. Of course, you understand, if you use a double-voltage with your present wiring, the service would be 250 volts; but at any future time you can put in a neutral wire, and distribute current on three wires. Yours truly,
“ R. Fuller.”
“White Cloud, Mich., Jan. 20, 1896.
“Fontaine Crossing & Electrical Co.,
“Detroit, Mich.
“Yours of Jan. 16th at hand. In answer to same, we wanted one of your steel frames; but as we have been to a great loss and expense, as well as yourself, we will do this: You deliver f. o. b. cars Detroit the proposed dynamo as stated in your letters Jan. 13, 16, to take the place of the one we now have. We will, on installing the one you ship us, deliver f. o. b. cars White Cloud the one we now have. We pay freight on the'one we receive; you pay freight on the one you receive. * * *
“Yours respectfully,
“H. S. Rauch & Bro.”
“Detroit, Mich., January 28, 1896.
“H. S. Rauch & Bro.,
“White Cloud, Mich.
“Gentlemen: I was very much surprised to receive your letter of the 26th, and in reply would say I am inclined to think you misunderstood your informant, in regard to my stating your letters to me were ‘ bluffs,’ as you call it; nor do I for a moment question your credit, as I made myself acquainted with your standing before any machine was ever sold to your firm. I do not blame you for not being satisfied with the manner your machine is working on the distributing wires from it, as I understand you purchased one machine, and wanted altogether another kind of current from the one you are now supplying, although you thought you were purchasing right, and we thought we were building right, which we did do according to contract received from Mr. .Benjamin. We now have found we were misled, and I, for one, have been trying to straighten the matter out, and have .under way. a 25 K. W. 250-volt machine for you, and hope to ship the same next week. . I am inclined to think the trouble is caused by your listening to too many people that can always be found ready to give unsolicited advice, and those inclined to attend to other people’s business rather than their own. Would it not be better to have more confidence in our personal transactions ? I propose to satisfy jtou, and not all of Northern Michigan, as I do not like to have any of my machinery misrepresented; and, if a mistake has been made, I want to make it right, and will do so. In regard to the machine you are now running, I would say, if your distributing current was of low resistance for 125-volt service, the machine is all right, and will do the work it was sold for by us; but it will not do on 250-volt service.
“In regard to other people requiting machines of larger units up north, I would be very glad to sell machinery to them, but not until after you are satisfied; nor would I care to send an agent to sell such machinery, after my experience at White Cloud, as it is not my custom to deceive purchasers, and I propose to give a man the best kind of machine for the particular service required by him, when I make a personal sale, and I have always instructed agents to be very particular in regard to such matters, and find it hard work to hold them down where they belong in some cases. I suppose you find the same trouble in having your agents sell flour, as I understand that a flour that makes good bread does not always make good pastry, and it would be poor policy for a salesman to claim too much in one barrel. For my part, I want you satisfied, and understand I was to send you a 25 K. W. 250 machine. Am I right? Yours truly,
“R. Fuller.”
“Detroit, Mich., March 2, 1896.
“Messrs. Rauch Bros.,
“White Cloud, Mich.
“Gentlemen: Inclosed bill of lading for 25 K. W. 250-volt machine. If you will let me know when you are ready to put this machine in service, I will send our man, Mr. Rumsey, to White Cloud, to start the machine and see it is in proper running order, which course will, I think, be more satisfactory all around, as there may be some information you may require; and we are anxious to have everything go off all right, that all may be pleased. Yours truly,
“R. Fuller.”
“White Cloud, March 7, 1896.
“Fontaine Crossing & Electrical Co.,
“Detroit, Mich.
“Gentlemen: Inclosed find shipping receipt for the dynamo shipped you in place of one received. We have been running it two nights, and are very much pleased with its workings. You may at any time refer to us any one in doubt as to your machines; also, send any one you wish to us, and we will do all in our power to show up the good qualities your machine has over others. If at any time we can do you a friendly act in any way, you may rest assured we will. We thought there was no use of having your firm go to the expense of sending your Mr. Rumsey to install the dynamo, as the writer has some little knowledge of electrical machinery, and has the machine installed and working satisfactory so far. We find this machine on our line takes care of the drop in line as lamps are cut on. If we do not allow the speed to vary, it gives a bright and white light at same voltage as on other machine. We cannot praise it too highly. Wishing you all the success the world can afford you, you may depend on us being with you.
“Yours respectfully,
“H. S. Rauch & Bro.”
“March 10, 1896.
“H. S. Rauch & Bro.,
“White Cloud, Mich. _
_ “ Gentlemen: I received your kind lettér of March 7th, and am pleased to learn you have the new machine in operation, and it is doing its work in accordance with what you ought to have had done in the first place. * * *
“Yours truly,
“R. Fuller.”
“March 10, 1896.
“H. S. Rauch & Bro.,
“White Cloud, Mich.
“ Gentlemen: Our Mr. Fuller has informed me that the 250-volt 25 K. W. machine is now in service, and running to your satisfaction. Will you be kind enough to send us your check covering your first note, with interest, amounting to $129.33 ? We might add that we paid $1.29 protest fees on this note; but, of course, owing to the unsettled condition of your apparatus, and as Mr. Benjamin was to a very great extent, if not wholly, to blame for this, we will charge the protest fees to his account, and not yours.
“Yours very truly,
“John Thompson, Sec’y & Treas.”
“Detroit, Mich., March 18, 1896.
“H. S. Rauch & Bro.,
“White Cloud, Mich.
“ Gentlemen: Our treasurer, Mr. Thompson, wrote you, March 10th, asking you if you would be kind enough to send us check for $129.33. As we have heard nothing from you in reply to our request, I take the liberty of again asking if you will remit this amount, as we are finding collections very hard, and have large pay-rolls; consequently, must have remittances. If you can send us check by return mail, it will be considered a great favor.
“Yours very truly,
“R. Fuller.”
“White Cloud, Mich., March 20, 1896.
“Fontaine Crossing & Electrical Co.,
“Detroit, Mich.
“ G-entlemen: Inclosed find statement of expense and delay of first dynamo; also, the price of Simpson'machine, which was to apply on our account. We supposed the Electrical Outfitting Co. had turned this over to you before now. If statement is allowed, we will waive further damages against your firm, and look to the Electrical Outfitting Co. for other damages.
“Yours respectfully,
“H. S. Rauch & Bro.
“H. S. R.
“ Statement.
■“Fontaine Crossing & Electrical Co., Detroit, in Account with H. S. Rauch & Bro.
1 Simpson dynamo----------------------------------- $87 00
Freight on first_______________________________________ 23 56
Expense unloading and installing first dynamo-------- 25 00
Loading same________________________________________ 20 00
15 days’ loss on track--------------------------------- 45 00
Loss on C. H. Mehrtens’ contract--------------------- 75 00
Expense of an attorney, Detroit_______________________ 40 00
§315 56”
“Detroit, March 23, 1896.
“H. S. Rauch & Bro.,
“White Cloud, Mich.
“ Gentlemen: Your favor of the 20th, with statement, received. All the items in the statement are matters between you and the Electrical Outfitting Co. If they are a claim at all, they are against that company. We have nothing to do with any of these matters. In the course of business, we bought your notes of $380, bearing interest, and we hold them against you. We shall expect payment, and, unless the first one is paid by April 1st, we will begin suit on it. Yours truly,
“R. Fuller.”
This action was then brought on the notes. Upon the trial the defendants sought to recoup damages as per the bill rendered.
The evidence alleged to show an agency is the following:
1. The representation of Mr. Benjamin.
2. The failure to deny that the defendants had bought a dynamo through the plaintiff’s agent, Benjamin, in the answer to defendants’ first letter.
3. The statement of plaintiff that it had twice sent Benjamin to White Cloud, at its expense, to adjust that machine.
4. The defendants’ statement in letter of November 27th “that the machine must work different from what it does, if we keep it;” and the following, contained in the same letter: “We would further say: You send a good man up, and if he can run the dynamo all right, without armature and commutator overheating more than the fields, — also, keep brushes from sparking, — we will stand the expenses, as stated in your letter of November 11th; and, should he fail to do so, you must stand the expenses, fix the machine, or refund our money, and expense of putting same in, at once. All we ask is to have value received for what we paid our money for. ”
5. The following statements found in letter of December 9th written by plaintiff: “lam sorry Mr. Benjamin ever went to White Cloud to start your machinery; but as this man has been in the electrical trade several years, and has done well on plants heretofore, I quite naturally supposed he would make no statements but those that were perfectly correct, as I am very particular in regard to such matters, and endeavor in every way to fully satisfy my customers, and have never before had any differences with any customer that we have sold machinery to. * * * In relation to our machine, again, we realize our future business, to a great extent, depends entirely on building first-class construction of machinery. We have never had a machine thrown out of service, and do not want a machine running that does not fully satisfy its owner, and will stand by our machine, even if it costs us more than the price of the machine. * * * We want to please you, and will use every endeavor to do so. I am sorry Mr. Benjamin was antagonistic to supplying you information. At any time you wish, write us, and we will be only too glad to answer questions.”
6. Letter of December 10th, as follows: “As I wrote you yesterday, if you will be kind enough to have a little patience, now that we have had a practical man examine into the cause of your trouble, we will make the machine right, and only ask you to give us a chance outside of your experience with Mr. Benjamin. We want to do what is right, and will do so, if you will only have a little patience, and give us a chance.”
7. The statement that plaintiff did not question defendants’ credit, as “ I made myself acquainted with your standing before any machine was ever sold to your firm. * * * You thought you were purchasing right, and we thought we were building right, which we did do, according to contract received from Mr. Benjamin. * * * If a mistake has been made, I want to make it right, and will do so. ”
8. The following: “In regard to other people requiring machines of larger units up north, I would be very glad to sell machinery to them, but not until after you are satisfied ; nor would I care to send an agent to sell such machín ery, after my experience at White Cloud, as it is not my custom to deceive purchasers, and I propose to give a man the best kind of machine for the particular service required by him, when I make a personal sale, and I have always instructed agents to be very particular in regard to such matters, and find it hard work to hold them down where they belong in some cases. I suppose you find the same trouble in having your agents sell flour, as I understand that a flour that makes good bread does not always make good pastry, and it would be poor policy for a salesman to claim too much in one barrel. For my part, I want you satisfied, and understand I was to send you a 25 K. W. 250 machine. Am I right ?”
From this the defendants contend that the jury might find that the contract was made by the plaintiff through its agent, Benjamin, while the plaintiff maintains that all that was written or done by the plaintiff was consistent with the theory that the Electrical Outfitting Company was the contracting party, and that the plaintiff was not, and that plaintiff’s efforts to satisfy the defendants do not necessarily recognize any contract obligation to do so, but merely a desire to protect its own business interests by satisfying purchasers of its machines.
It is obvious that the statements of Benjamin do not prove his agency; but we think that the correspondence and subsequent dealings raise a question about which minds might differ, and therefore it was for the jury. We do not'wish to be understood as expressing an opinion upon the merits of this question, but only that it is a question of fact.
It follows that the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
20,
-8,
-1,
-29,
-20,
-37,
19,
5,
18,
-2,
-25,
-35,
9,
23,
20,
-32,
30,
-12,
13,
-12,
20,
-72,
30,
-25,
-25,
-8,
18,
-28,
-8,
16,
14,
44,
30,
7,
-22,
46,
15,
-19,
-6,
-50,
1,
22,
20,
-34,
-21,
-3,
-11,
-26,
56,
-58,
18,
-14,
18,
-12,
-39,
-83,
10,
88,
-65,
45,
8,
-44,
39,
-1,
-5,
-45,
20,
18,
-9,
38,
-2,
-22,
14,
-30,
11,
-42,
3,
-24,
-35,
-4,
-16,
-23,
56,
-4,
11,
14,
6,
-67,
22,
11,
12,
-9,
21,
17,
39,
22,
-14,
30,
2,
24,
-35,
19,
-23,
11,
16,
12,
-15,
-4,
4,
60,
-40,
54,
26,
14,
-36,
7,
12,
-5,
-15,
19,
-25,
-23,
0,
4,
-22,
26,
-40,
-58,
20,
-15,
-3,
-12,
-14,
-11,
13,
25,
-8,
23,
2,
21,
-13,
11,
-19,
22,
15,
7,
11,
22,
-34,
-3,
-24,
-43,
-17,
20,
42,
-46,
-16,
-49,
52,
36,
48,
9,
1,
-33,
-11,
15,
5,
-47,
4,
-40,
-38,
21,
-30,
-41,
49,
19,
-2,
-7,
-49,
-39,
-10,
9,
-12,
16,
39,
-12,
28,
12,
48,
15,
16,
38,
-44,
-30,
-63,
21,
-3,
-16,
43,
19,
56,
-1,
-17,
-4,
-41,
7,
-6,
-16,
4,
12,
7,
19,
8,
-52,
-28,
7,
-28,
-21,
-19,
7,
-27,
-57,
-34,
28,
-25,
-32,
12,
11,
3,
24,
-59,
23,
9,
-15,
-40,
-24,
-29,
14,
12,
-48,
-37,
-29,
-11,
-21,
-23,
25,
-11,
-19,
-48,
3,
-53,
14,
27,
-5,
-39,
-46,
-37,
31,
-8,
-27,
12,
47,
-24,
36,
11,
12,
13,
-21,
39,
31,
-36,
-37,
13,
72,
-27,
-20,
-33,
36,
28,
-36,
-9,
-28,
-15,
-16,
-7,
-6,
-69,
21,
-40,
-8,
34,
12,
13,
-40,
40,
13,
-7,
16,
-35,
-15,
-59,
19,
0,
-42,
20,
11,
33,
-14,
21,
30,
-23,
22,
4,
5,
-5,
16,
1,
0,
7,
-8,
-40,
21,
14,
26,
4,
-16,
-2,
-26,
8,
3,
25,
-9,
-9,
-2,
-55,
-6,
3,
1,
54,
-25,
-16,
40,
-7,
0,
-33,
54,
63,
4,
-15,
-19,
6,
-59,
4,
-33,
-7,
9,
10,
19,
-18,
29,
22,
12,
-2,
-1,
-19,
11,
-11,
-48,
-42,
68,
-8,
-3,
-67,
42,
-10,
-17,
-38,
17,
-18,
56,
-15,
2,
-15,
-54,
-5,
35,
32,
7,
-40,
44,
-34,
0,
-7,
22,
5,
-12,
-21,
-47,
7,
-50,
32,
52,
-1,
-1,
-42,
40,
10,
-5,
16,
-4,
-24,
15,
64,
1,
-29,
-73,
4,
12,
-3,
-6,
11,
2,
-12,
12,
39,
0,
73,
-4,
-6,
-21,
12,
-6,
32,
9,
-19,
19,
17,
17,
19,
-15,
-13,
8,
-46,
23,
51,
1,
22,
4,
7,
35,
42,
-3,
22,
57,
8,
13,
3,
-20,
38,
36,
-53,
5,
32,
-17,
-8,
-2,
55,
-43,
-25,
16,
-26,
-13,
-17,
-18,
0,
2,
14,
6,
-28,
-14,
13,
15,
68,
67,
-10,
-55,
-23,
0,
-4,
-30,
43,
39,
-18,
8,
28,
8,
-17,
3,
5,
-2,
-36,
-68,
63,
-7,
-3,
10,
26,
-18,
25,
32,
-11,
23,
-20,
-42,
-6,
-35,
11,
3,
-12,
54,
4,
1,
-20,
27,
-35,
-48,
15,
2,
12,
-1,
29,
-32,
20,
-13,
19,
-90,
-24,
11,
-2,
-11,
3,
-4,
10,
10,
-13,
2,
-39,
4,
15,
-11,
7,
-17,
36,
34,
-23,
28,
-10,
-22,
-1,
8,
-11,
-13,
26,
-3,
11,
-20,
-11,
1,
54,
-24,
9,
38,
17,
63,
-2,
30,
-39,
-2,
7,
0,
2,
5,
37,
-33,
-38,
-6,
10,
29,
-5,
16,
-28,
-9,
-7,
18,
40,
-45,
-33,
18,
1,
-8,
28,
-11,
-31,
-14,
5,
-13,
-43,
31,
26,
21,
42,
-33,
35,
-11,
9,
29,
-20,
-70,
8,
26,
42,
23,
-4,
11,
0,
0,
-38,
-33,
-37,
-32,
-45,
-10,
-23,
19,
0,
13,
26,
-4,
-43,
-18,
3,
-3,
-8,
-46,
-61,
-23,
-54,
8,
37,
-13,
3,
-41,
67,
-13,
-30,
-43,
-12,
30,
-6,
36,
-3,
-40,
-13,
-26,
7,
-2,
35,
-56,
-13,
-24,
36,
-21,
-1,
3,
-1,
13,
-18,
27,
29,
18,
11,
-15,
6,
16,
49,
34,
21,
-25,
-13,
-25,
-14,
37,
21,
-46,
17,
8,
34,
-40,
11,
-55,
-2,
-9,
2,
58,
-28,
25,
33,
-32,
67,
-19,
29,
27,
16,
17,
-14,
34,
-14,
20,
-51,
-42,
-12,
-19,
-22,
-16,
-26,
-9,
17,
-17,
12,
-28,
26,
13,
25,
11,
-12,
55,
-54,
-50,
-27,
4,
22,
-3,
19,
16,
-36,
-47,
41,
13,
46,
6,
14,
15,
70,
-2,
60,
25,
13,
-15,
-47,
-9,
2,
6,
36,
-36,
3,
42,
7,
-24,
-35,
-42,
-88,
19,
-30,
-15,
25,
7,
-55,
-16,
1,
-11,
41,
-9,
-65,
52,
-26,
14,
12,
44,
54,
-3,
20,
13,
21,
14,
-17,
0,
-6,
-19,
2,
-31,
-9,
-27,
-19,
17,
19,
-41,
2,
16,
48,
-40,
25,
19,
17,
-72,
8,
29,
-19,
-22,
-12,
-19,
-8,
25,
8,
-6,
-16,
-25,
-8,
-45,
-13,
4,
68,
-26,
-14,
54,
-20,
39,
-5,
-46,
0,
6,
-16,
-35,
-14,
64,
22,
24,
-31,
74,
1,
-4,
32,
21,
-32,
-34,
-21,
-13,
31,
29,
17,
11,
5,
35,
-13,
19,
30,
-40,
-3,
-15,
-3,
-45,
29,
15,
23,
-21,
-8,
17,
-25,
-9,
64,
44,
-28,
-41,
37,
-85,
21,
-10,
-10,
-37,
0,
45,
27,
14,
-45,
6,
12,
-13,
44,
-30,
71,
0,
20,
8,
-16,
-3,
15,
21,
28,
20,
-40,
9,
57,
-21,
-27,
6,
-39,
3,
9,
13,
27,
27,
-36,
-49,
-15,
53,
30,
12,
-30,
-18,
8,
53,
44,
-57,
23,
-22,
61,
15,
8,
-32,
-3,
-28,
45,
-6,
26,
-51,
12,
4,
-24,
28,
2,
7,
-27,
4,
46,
42,
-35,
-8,
-33,
-4,
9,
-47,
11,
5,
1,
-1,
2,
39,
36,
26,
7,
-13,
0,
24,
-18,
-55,
26,
-29,
34,
-13,
-25,
-3,
24,
-49,
3,
42,
92,
-18,
-42,
-48,
-5,
20,
-13,
-22,
-4,
-20,
-29,
-39,
40,
-37,
40,
-45,
28,
-11,
-9,
8,
-25,
16,
2,
-43,
-3,
-17,
-29,
13,
13,
32,
-46,
30,
-18,
-29,
44,
4,
33,
1,
11,
0
] |
Montgomery, J.
This is an action of assumpsit. At the close of the testimony, the circuit judge directed a verdict for the defendant, and plaintiff brings error.
The cause of action stated in the declaration is that plaintiff “had a valid claim against the estate of David Wallace, an incompetent, which he forebore to press upon the express promise of Robert Turner to pay the same to him, said claim being otherwise good, and a valid and legal claim.” On the trial the following facts appeared: Plaintiff had a claim of $230 against the estate of David Wallace, deceased. David Wallace had in his lifetime conveyed all of his property to his wife, Harriet J. Wallace, who died before her husband. Defendant was executor of the estate of Harriet J. Wallace. The administrator of the estate of David Wallace, George McDon aid, had filed a bill to set aside the conveyance from David Wallace to Harriet J. Wallace in the interest of creditors of David Wallace’s estate. On the filing of this bill in the interest of these creditors, a bond was executed by the administrator of the David Wallace estate and four of the creditors of said estate, of whom plaintiff was one, as security for costs. Plaintiff’s counsel states in his brief his inference from the testimony, as follows :
“That plaintiff went upon said bond, and furnished the co-security, so that he could get what was coming to him; when the defendant came to plaintiff, and asked him to get off the bond, and withdraw his aid from the suit, in consideration of which action defendant promised plaintiff to pay him a certain sum of money, agreed, as plaintiff claims, to be the sum of $230; that this proposition, which plaintiff claims defendant accepted, was greatly to defendant’s personal profit.”
The questions raised by defendant’s counsel are whether this alleged promise was an original promise or a collateral promise. It appears that the plaintiff received from the estate of David Wallace 57 per cent, of his claim later on, and it does not appear affirmatively that the estate of David Wallace was discharged of any obligation to plaintiff. The circuit judge held that the agreement, as testified to by plaintiff, was, under the circumstances disclosed, against public policy. We are cited to no case directly in point, but we think, on principle, the ruling of the circuit judge should be sustained. The proceeding instituted was in the interest of the several creditors of the David Wallace estate. By the agreement made, one of these creditors sought to secure an advantage over the other creditors by a secret arrangement, which the law does not favor. The case is in principle like that of Adams v. Outhouse, 45 N. Y. 318. In that case several of the next of kin were-about to take proceedings against the administrator to oppose his account of the estate, and to compel him to account for other personal property claimed to have been appropriated by him. He secretly promised two of them that, if they would acquiesce in his account, he would pay them a certain sum. They acquiesced, and the others ceased opposition, and came to a settlement. The promise was held void. In the present case the plaintiff and the other creditors of the David Wallace estate were seeking to reach a fund in which they had a common interest. It was bad faith in the plaintiff to seek to divert any portion of that fund, and the contract must be held to be against public policy. See Greenh. Pub. Pol. 136.
Judgment will be affirmed, with costs.
The other Justices concurred. | [
-23,
-2,
-42,
36,
11,
-10,
41,
-26,
43,
7,
11,
-27,
21,
44,
-10,
-29,
25,
-20,
-5,
-32,
23,
-43,
-17,
-28,
45,
15,
3,
14,
16,
-27,
-6,
49,
-58,
11,
-9,
6,
-13,
-51,
20,
24,
-4,
11,
30,
-4,
-36,
16,
-36,
-11,
21,
-28,
-28,
-19,
19,
7,
-4,
-46,
-27,
27,
-65,
-40,
3,
-59,
20,
-32,
22,
47,
13,
-6,
-12,
-10,
-8,
37,
28,
32,
8,
-13,
18,
-25,
2,
-3,
-8,
-22,
3,
-2,
-24,
-12,
-5,
9,
-18,
57,
-27,
19,
-16,
20,
-34,
26,
11,
18,
5,
13,
-47,
-7,
-66,
10,
29,
0,
37,
-90,
-26,
60,
35,
0,
21,
-3,
-46,
0,
-24,
-26,
-1,
-9,
23,
5,
17,
-10,
-23,
-20,
25,
-21,
-4,
-9,
52,
44,
-54,
-61,
-24,
-3,
-17,
26,
-10,
3,
1,
-52,
11,
-25,
51,
9,
-25,
-24,
-20,
-36,
0,
33,
-13,
31,
42,
-54,
4,
-30,
-1,
-28,
56,
6,
9,
16,
-27,
-25,
31,
-9,
22,
5,
13,
2,
10,
-41,
20,
12,
27,
-21,
-48,
-30,
-30,
-11,
8,
-28,
33,
-19,
28,
17,
-13,
27,
5,
-7,
-46,
51,
7,
74,
8,
1,
-14,
28,
20,
-34,
18,
-3,
3,
-25,
37,
-66,
-6,
-37,
-33,
-13,
46,
-11,
-20,
-1,
-35,
-67,
0,
-6,
15,
-23,
-20,
33,
5,
-57,
14,
-28,
-9,
3,
40,
18,
4,
20,
-16,
5,
0,
0,
16,
-11,
-39,
1,
29,
-15,
40,
-34,
-4,
20,
-4,
-4,
-59,
31,
-20,
14,
9,
12,
-10,
-5,
-21,
-39,
-8,
41,
-67,
8,
13,
-32,
-6,
-46,
3,
17,
31,
-31,
38,
6,
3,
-35,
-11,
4,
-31,
-17,
8,
23,
-65,
-18,
0,
22,
-39,
42,
-7,
-18,
40,
-48,
41,
12,
52,
41,
-17,
-15,
17,
26,
18,
0,
44,
11,
20,
7,
-3,
-8,
31,
22,
-3,
-31,
7,
35,
26,
29,
-7,
-41,
19,
-9,
-11,
31,
-20,
-10,
32,
14,
-5,
-38,
1,
46,
-2,
27,
24,
-14,
26,
-14,
15,
22,
-72,
-25,
34,
9,
28,
4,
9,
-13,
19,
-10,
-58,
30,
-47,
17,
-19,
6,
54,
-33,
56,
-45,
14,
63,
20,
-5,
21,
-21,
-2,
-23,
-9,
-24,
-13,
30,
-4,
21,
-27,
-33,
-16,
-6,
-2,
-2,
-51,
2,
-19,
17,
-27,
22,
36,
-39,
-18,
3,
-17,
30,
-52,
-29,
-3,
55,
47,
-13,
-18,
-26,
-70,
27,
13,
40,
28,
-40,
-42,
43,
-39,
-36,
-17,
-3,
-20,
9,
67,
3,
-26,
-50,
60,
-22,
46,
30,
9,
-17,
5,
-2,
-34,
-35,
27,
9,
-53,
-30,
-4,
21,
-8,
-2,
49,
21,
-32,
7,
-20,
-12,
-5,
6,
34,
11,
30,
0,
28,
3,
56,
-13,
-22,
0,
2,
0,
-13,
17,
22,
-57,
5,
-3,
37,
-15,
30,
-8,
24,
-8,
-16,
8,
22,
-34,
10,
12,
66,
22,
5,
8,
4,
-10,
-37,
-19,
-9,
45,
7,
-13,
-25,
18,
-28,
-39,
7,
-22,
13,
10,
-13,
2,
-39,
9,
-44,
26,
-16,
-4,
26,
4,
13,
13,
15,
-48,
5,
-46,
1,
7,
0,
-23,
-27,
13,
24,
16,
28,
30,
23,
46,
81,
-9,
-38,
9,
9,
-8,
0,
29,
52,
-7,
-32,
29,
-4,
-4,
-3,
30,
-11,
16,
5,
-30,
-18,
40,
0,
66,
-55,
25,
10,
2,
15,
-4,
28,
-48,
22,
38,
46,
36,
50,
-3,
15,
-20,
13,
-26,
-6,
-5,
16,
-18,
9,
-39,
26,
28,
13,
-33,
7,
-23,
23,
-39,
-37,
13,
-12,
-12,
-25,
-21,
-16,
-9,
-33,
35,
16,
26,
-22,
-11,
-5,
29,
4,
-22,
6,
-27,
-23,
-50,
9,
8,
19,
-11,
-8,
-28,
-3,
-35,
11,
16,
9,
7,
55,
9,
0,
-11,
16,
0,
-7,
-71,
-23,
65,
35,
4,
5,
-29,
61,
28,
-22,
-2,
-29,
12,
4,
-51,
-23,
21,
-15,
-6,
-71,
0,
12,
-17,
-60,
45,
16,
26,
1,
3,
-35,
20,
14,
-41,
-13,
22,
35,
24,
-8,
0,
58,
29,
23,
-31,
59,
-4,
-26,
48,
21,
29,
45,
-3,
19,
5,
25,
-18,
-20,
45,
32,
24,
-5,
-21,
26,
1,
-26,
-36,
17,
2,
-30,
42,
2,
9,
-15,
25,
-3,
14,
4,
-11,
18,
30,
18,
10,
49,
24,
38,
14,
-107,
6,
-12,
-11,
-53,
28,
-3,
-57,
0,
7,
-5,
-25,
-16,
44,
1,
-4,
-42,
-59,
6,
-60,
-18,
-36,
3,
25,
17,
5,
23,
-11,
-2,
-28,
-12,
20,
-34,
58,
18,
2,
-37,
-34,
-7,
52,
-9,
-43,
23,
40,
-25,
14,
1,
-9,
37,
9,
-5,
38,
2,
0,
-37,
-5,
29,
9,
-37,
2,
-8,
-16,
4,
-9,
-47,
10,
9,
-14,
10,
-25,
34,
28,
-30,
6,
77,
9,
10,
-6,
29,
9,
-36,
37,
-11,
-34,
23,
-19,
0,
59,
5,
-7,
8,
-1,
2,
14,
13,
8,
-19,
-72,
36,
38,
5,
54,
17,
2,
19,
51,
-5,
9,
-10,
5,
37,
-13,
-58,
-24,
-24,
18,
25,
-6,
-17,
26,
14,
-12,
-52,
22,
-42,
13,
-70,
10,
12,
-70,
-36,
18,
57,
54,
19,
-6,
-68,
-70,
5,
-21,
-30,
8,
24,
36,
5,
8,
-10,
1,
8,
-36,
31,
29,
-40,
-35,
-16,
-14,
-2,
14,
-12,
2,
-64,
-41,
14,
-25,
19,
48,
0,
1,
22,
26,
-60,
21,
25,
24,
44,
-40,
23,
0,
-34,
4,
-6,
58,
-27,
-13,
56,
-61,
-39,
32,
-4,
-19,
-11,
-11,
-64,
0,
-33,
-6,
17,
-20,
19,
-5,
-62,
-21,
-6,
7,
35,
7,
5,
-3,
10,
12,
11,
0,
-41,
39,
-16,
0,
5,
42,
7,
-21,
-62,
-18,
10,
-19,
12,
10,
-45,
14,
-4,
-61,
-34,
5,
32,
-37,
7,
-49,
12,
18,
22,
-43,
-46,
-31,
-28,
6,
-27,
-66,
-23,
21,
-4,
-6,
-8,
48,
-46,
-19,
-20,
-15,
-15,
-21,
-33,
32,
13,
-33,
38,
4,
21,
49,
-31,
-52,
-11,
-35,
-6,
-73,
4,
-19,
54,
1,
-27,
-61,
28,
18,
-67,
26,
1,
11,
29,
-38,
-20,
-29,
65,
27,
18,
40,
18,
-7,
5,
3,
-63,
-17,
-16,
-9,
18,
18,
26,
-28,
61,
43,
33,
-17,
-52,
0,
33,
3,
21,
66,
1,
-3,
59,
-6,
5,
2,
31,
48
] |
Levin, J.
On the day before the statute of limitations expired, the plaintiff commenced this action in the Manistee County Circuit Court and mailed a copy of the complaint and summons to the sheriff of Muskegon County where the defendant was a resident. Two days later (i.e., after the expiration of the limitations period) the summons and complaint were received by the Muskegon County sheriff and on the same day they were personally served upon the defendant.
RJA § 5856 (3) provides that the statutes of limitations are tolled for a period not longer than 90 days when the complaint is filed and a copy of the summons and complaint are in good faith “placed in the hands of an officer” for immediate service.
The plaintiffs appeal an order of the trial court granting the defendant’s motion for accelerated judgment dismissing this action. The trial court ruled that the summons and complaint were not placed “in the hands” of an officer when they were mailed to the Muskegon County sheriff and that by the time the mailed process was delivered to the sheriff the statute of limitations had expired.
Read literally, the words “placed in the hands of an officer” do seem to require that the process be physically placed in his hands. And, thus, while the papers may be mailed to him, the statute is not tolled until they are actually received physically in his hands. However, in State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich 194, the Supreme Court of Michigan declared, albeit in obiter dictum (p 197):
“it would seem that if counsel were intent upon in good faith placing the papers in the hands of an officer for immediate service, he could have * * * mailed the papers immediately to the Genesee County sheriff under appropriate instructions.”
In Catsman, the action was filed on the very last day of the limitations period. Accordingly, the Court could not have thought that the mailed papers might arrive within the limitations period. In that context, Catsman’s dictum is particularly strong dictum.
Members of the profession may have relied upon the Catsman dictum, prudently or imprudently. This in itself may be a sufficient reason, until further word from the Supreme Court, for treating mailing of the complaint and summons as the equivalent of physical delivery for the purposes of this tolling provision.
We know from the official report of the draftsmen of the Revised Judicature Act that the words “placed in the hands of an officer” were not necessarily-chosen to differentiate between manual and mail delivery. The committee note to RJA § 5856 states that, “existing Michigan law as stated in Korby v. Sosnowski (1954), 339 Mich 705, holds that an action at law for damages is commenced when the summons is in good faith placed in the hands of an officer for service although service is not actually made until after expiration of the statutes of limitation”. (Emphasis supplied.) With that comment in mind we think it just as reasonable to infer that the words “in the hands” were used to preserve as much as possible of “existing Michigan law” as to infer that they were used to differentiate between manual and mail delivery. The view that the words were used to preserve to that extent existing Michigan law is strengthened by the close-following additional comment of the committee:
“The section does not constitute any radical departure from presently accepted principles, but it prescribes a definite procedure to be utilized wherein counsel are informed of the necessary steps which will guarantee the tolling of the statute of limitation.”
Since the critical words “in the hands of an officer” were not newly coined but were taken from prior case law, we may properly assume that the words were used in the sense in which they were understood and used in the earlier cases. An examination of the early cases indicates that sending or transmitting the process to an officer was thought to be the equivalent of placing the process physically in his hands. In Dedenbach v. City of Detroit (1906), 146 Mich 710, 711, the Court said that it appeared “that the writ was not placed in the hands of an officer until December 3, 1904,” and then observed (p 711):
“This case is clearly within the rule laid down in the case of Peck v. The German Fire Insurance Company (1894), 102 Mich 52; i.e., that ‘the commencement of suit consists of suing out the summons, and delivering or transmitting it to an officer with the bona fide intention of having it served.’ Such is believed to be the rule generally in this country. See authorities cited in Peck v. Insurance Co., supra. In Angelí on Limitations, § 312, the rule is stated as follows:
“ ‘The general rule appears to be, in this country, that, at the time of suing out of the writ, the action commences; and either, when the writ is delivered to the sheriff, or to his deputy; or when it is sent to either of them, with a bona fide intention to be served upon the defendant, it is considered to have issued.’ ” (Emphasis supplied.)
It is recognized that in none of the three early cases where language equating “transmittal” with “delivery” appears was it relevant to decision. The language does, however, indicate that the early writers who used the term “in the hands” did not have in mind only manual delivery.
An additional straw in the wind is Home Savings Bank v. Fuller (1941), 299 Mich 9. There the summons was issued July 13, 1939, with a return day of July 29, 1939, and was mailed to the sheriff on July 24, 1939 — the day before the statute of limitations expired — and was received by him on July 26, 1939, one day after the statute expired. An alias summons was issued August 31, 1939. Plaintiff’s action was held barred because of the break in continuity resulting from the delay from July 29, 1939 until August 31, 1939 in issuing an alias summons. While there was no discussion in the opinion as to whether the process mailed to the sheriff on the day before the statute would have expired and which arrived the day after it expired tolled the statute, it appears from the basis of the decision that the parties or the Court or both may have assumed that mailing tolled the limitations period.
Under Indiana law an action is not deemed commenced “until the summons reaches the hands of the officer.” In Vercillo v. Saksa (ND Ind, 1955), 131 F Supp 739, process was mailed to the officer before the statute of limitations expired but did not reach him until afterwards. The United States District Court for the Northern District of Indiana ruled, on the authority of Burdick v. Oreen (NY, 1820), 18 Johns 14, that it is unnecessary under Indiana law to show that the writ has been actually delivered into the hands of the sheriff, providing it is shown that the writ was actually made out and sent to the sheriff by mail, or otherwise, with a bona fide and absolute intention of having it served. This interpretation of Indiana law by the United States District Court was later adopted by an Indiana appellate court in Jensen v. Fagan (1964), 138 Ind App 679 (199 NE2d 716).
In earlier cases we have emphasized that the critical words in RJA § 5856 are “good faith” and that this tolling provision, designed to save causes of action, should be given a liberal construction. The centrality of good faith was emphasized in the Catsman dictum, supra, pp 197, 198.
On pragmatic grounds a construction that mailing suffices makes sense. This action was commenced when the complaint was filed in the City of Manistee, located 85 miles from the City of Muskegon, the county seat of the county where the defendant resided and where presumably the sheriff of that county has his office. If mailing the summons and complaint to the officer did not suffice, then it was necessary for the plaintiffs’ attorney to travel 85 miles in each direction to avoid hazarding noncompliance with the statutory requirement. Even if plaintiffs’ attorney had done so, he might have experienced difficulty in locating the sheriff or one of his deputies. No constructive purpose is served by an interpretation of RJA § 5856 which would so inhibit plaintiffs in availing themselves of its provisions.
Construing the words “placed in the hands of an officer” to mean that the process is placed in the officer’s hands when it is mailed to him, as well as when manually delivered to him, is entirely consistent with the legislative purpose of prescribing “a definite procedure to be utilized wherein counsel are informed of the necessary steps which will guar antee the tolling of the statute of limitation”. Such a construction is also entirely consistent with the additionally committee-note-stated purpose of establishing “a maximum tolling period”. Where the process is mailed rather than manually delivered, the 90-day period begins to run when the process is mailed without regard to when, if ever, it reaches the officer; when the process is manually delivered, the 90-day period begins to run when so delivered. In both cases a definite and clearly defined 90-day tolling period is established.
Without regard to whether the process is mailed or manually delivered to the officer, the burden is on the plaintiff and his attorney to see to it that the officer or someone else effectuates service within the 90-day period and whatever time remained of the statutory limitational period before it was tolled.
It is no answer to say that plaintiffs’ lawyer should not have waited until the last minute. The question before us is: What is the last minute ? It does seem inexplicable that lawyers wait until the last minute hut, from the number of cases that have reached our Court in the last few years presenting questions concerning the construction of RJA § 5856 it appears that many lawyers do so.
The legislature has declared that there shall be a 90-day tolling period both for plaintiffs represented by diligent lawyers and those represented by dilatory lawyers. Indeed, it is probable that the provision is intended more for the benefit of those represented by dilatory lawyers than for those represented by diligent ones.
When a plaintiff has unequivocally committed the complaint and summons to an officer for immediate service, the potential for further delay, depriving the defendant of notice that an action has been commenced against him, is obviated.
We hold that a good-faith mailing to an officer of the summons and a copy of the complaint is the equivalent of physical delivery for the purpose of tolling the statute of limitations and that in such a case the 90-day tolling period commences upon mailing.
The defendant additionally asserts that the plaintiffs failed to enclose “appropriate instructions” with the summons and complaint. However, no magic words are required. Where the necessary information is conveyed, particularized instructions are not required. In this case the sheriff effected service on the same day the papers were received; manifestly the instructions were clear enough.
Reversed and remanded for trial. Costs to plaintiffs.
All concurred.
This is an action for personal injuries arising out of an automobile aeeident which occurred on November 22, 1965. The complaint was filed November 21, 1968. On the same day plaintiffs’ then counsel mailed by certified mail, with return receipt requested, the summons and a copy of the complaint to the sheriff of Muskegon County. On November 23, 1968 the papers were received by the Muskegon County sheriff and on that date they were served on the defendant.
“The statutes of limitations are tolled when * * *
“(3) the complaint is filed and a copy of the summons and complaint in good faith, are plaeed in the hands of an offieer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” MOLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856).
This statement was repeated by this Court in Meyers v. Geer (1966), 4 Mich App 392, 394, 395, again as dicta.
Cf. In re Cox Estate (1970), 383 Mich 108, 117.
Reprinted as annotation, 34 MCLA, pp 943-945; 23 Stat Ann 1962 Rev, pp 135, 136.
Other eases where the Court described the manner of commencement of suit under the former practice as including placing the process “in the hands of an officer” for service include Nathan v. Rupcic (1942), 303 Mich 201, 204; Taylor v. Mathews (1923), 224 Mich 133, 135; People’s Mortgage Corporation v. Wilton (1926), 234 Mich 252, 255; Some Savings Bank v. Young (1940), 295 Mich 725, 730.
Catsman’s dictum that mailing will be treated as satisfying the requirement that process be “placed in the hands” of an officer is especially important in view of the eommittee-note-stated purpose of informing counsel “of the neeessary steps which will guarantee the tolling of the statute of limitations.” To construe these words in a manner inconsistent with the information set forth in the Supreme Court’s opinion would tend to defeat this purpose.
See 50 Am Jur, Statutes, §§ 278, 279.
Dedenbach v. City of Detroit (1906), 146 Mich 710; Peck v. The German Fire Insurance Company (1894), 102 Mich 52, 54; People, ex rel. McCallum v. Gebhardt (1908), 154 Mich 504, 506.
See footnote 11.
See Coffey v. Myers (1884), 84 Ind 105, cited in Vercillo v. Saksa (ND Ind, 1955), 131 F Supp 739.
Burdick v. Green, supra, was one of the cases cited in support of the passage from Angelí on Limitations quoted by the Michigan Supreme Court in Dedenbach v. City of Detroit, supra, as set out in the text of this opinion preceding footnote 9.
Hoseney v. Zantop (1969), 17 Mich App 141; Bratton v. Trojan Boat Company (1969), 19 Mich App 236.
By treating mailing as the equivalent of delivery only for the purpose of commencing the 90-day period, tolling would end 90 days after mailing. The time consumed in delivering the mail would count against the 90-day tolling period. If it takes one day for the attorney’s letter to reach the sheriff, . only 89 days of the tolling period would he left. If the letter never reaches the sheriff, the tolling period would, nevertheless, expire 90 days after mailing.
See Hoseney v. Zantop, supra.
See Bush v. Watson (1966), 3 Mich App 94; Salmanovitz v. Dexter-Davison Markets, Inc. (1969) 17 Mich App 390; Holland v. Ittner (1969), 16 Mich App 547; McMahill v. MacLean (1969), 20 Mich App 148; Buscaino v. Rhodes (1969), 20 Mich App 329; Wise v. Sisters of Mercy (1970), 21 Mich App 134; Guastello v. Citizens Mutual Insurance Company (1968), 11 Mich App 120; DiGiovanni v. Yacenick (1968), 9 Mich App 590; Sera v. Eberlein (1968), 11 Mich App 139; Constantini v. Hofer (1967), 5 Mich App 597; Bratton v. Trojan Boat Company, supra; Hoseney v. Zantop, supra; Meyers v. Geer, supra.
These words appear in the language quoted from Catsma/n, in the opening paragraphs of this opinion. | [
28,
43,
12,
19,
1,
42,
19,
-23,
6,
72,
1,
30,
-43,
11,
-8,
-18,
43,
35,
47,
18,
-25,
30,
11,
-17,
-13,
-6,
-9,
33,
12,
13,
0,
10,
14,
-7,
-1,
-19,
10,
2,
31,
25,
23,
-19,
47,
-24,
-26,
-46,
46,
23,
3,
-21,
26,
8,
-33,
-5,
13,
-6,
-16,
-21,
5,
2,
-19,
-10,
-38,
1,
15,
61,
7,
-3,
-13,
-48,
1,
7,
6,
22,
-23,
17,
16,
23,
6,
31,
20,
-5,
9,
-21,
-8,
-5,
-25,
-20,
46,
-53,
16,
-6,
-40,
2,
4,
6,
-11,
27,
8,
-15,
-37,
54,
21,
-12,
-42,
31,
-24,
-77,
-58,
-10,
-11,
16,
-27,
-32,
-5,
9,
13,
28,
18,
27,
35,
-27,
36,
-8,
14,
-22,
-8,
35,
45,
58,
0,
51,
82,
-9,
17,
2,
-2,
-34,
37,
-29,
7,
-4,
15,
-44,
-34,
-62,
25,
-10,
3,
13,
-5,
57,
-31,
13,
-30,
8,
14,
-32,
23,
-1,
50,
34,
-45,
-42,
-15,
-26,
-30,
30,
1,
-16,
13,
-1,
12,
-14,
33,
10,
-22,
19,
-3,
-28,
-19,
26,
20,
3,
28,
-31,
-9,
-43,
-7,
-36,
15,
-48,
64,
17,
4,
14,
17,
30,
-10,
-7,
19,
-68,
24,
0,
-22,
18,
43,
-19,
-25,
15,
-11,
-1,
-42,
-39,
-63,
-52,
9,
-19,
-7,
37,
-24,
3,
-2,
-62,
27,
-23,
16,
-17,
-18,
-3,
-15,
18,
60,
-5,
-13,
-9,
9,
-11,
27,
35,
9,
-2,
-21,
-22,
1,
63,
-28,
-35,
5,
15,
6,
2,
18,
-2,
2,
-34,
10,
-31,
-3,
-19,
-3,
24,
-31,
0,
-7,
-19,
32,
62,
-66,
27,
-21,
29,
27,
19,
-27,
-30,
11,
2,
28,
-37,
5,
-5,
-21,
-25,
-30,
47,
13,
2,
-24,
3,
-21,
-8,
-47,
104,
8,
38,
51,
-9,
13,
-2,
-4,
31,
11,
28,
-2,
-26,
-34,
1,
0,
-26,
19,
19,
6,
6,
-25,
-2,
2,
-19,
50,
-28,
13,
58,
24,
-28,
0,
-26,
26,
-1,
15,
-5,
19,
-21,
-10,
-2,
17,
30,
44,
-43,
-48,
-9,
5,
16,
-19,
21,
-21,
18,
23,
-17,
30,
29,
-32,
-6,
8,
11,
14,
9,
-8,
-7,
-22,
61,
29,
-23,
0,
-14,
25,
-12,
-9,
-30,
-11,
42,
-21,
-34,
20,
-12,
-23,
-22,
-17,
-8,
-11,
24,
-14,
-47,
-4,
-20,
-2,
-24,
-45,
-38,
2,
-47,
-37,
-7,
-29,
38,
-33,
-55,
-4,
4,
-27,
12,
-3,
0,
43,
39,
25,
17,
-43,
22,
1,
54,
15,
-33,
21,
33,
-21,
-2,
59,
25,
36,
-28,
28,
-2,
10,
-95,
7,
-54,
-15,
64,
7,
-9,
55,
30,
24,
6,
29,
39,
-18,
-41,
-23,
-9,
34,
-14,
-33,
-36,
-18,
26,
0,
1,
30,
-33,
45,
24,
20,
1,
-38,
14,
50,
13,
-6,
15,
16,
-51,
-56,
35,
22,
-11,
-19,
-13,
17,
-18,
-55,
-12,
-23,
37,
-66,
-24,
-7,
9,
13,
37,
-14,
38,
-21,
-26,
-1,
-11,
17,
-59,
-10,
15,
22,
-55,
-37,
46,
-5,
31,
-88,
6,
0,
48,
21,
3,
67,
57,
21,
6,
8,
2,
-35,
-2,
-35,
23,
72,
-28,
7,
37,
36,
18,
-8,
-12,
1,
-33,
-40,
15,
-41,
-15,
29,
-39,
-34,
-50,
55,
-3,
1,
-80,
-16,
60,
-28,
-17,
-32,
-12,
29,
47,
24,
35,
1,
16,
-29,
0,
6,
-3,
-33,
-15,
-22,
-13,
-6,
-49,
-6,
-32,
41,
0,
38,
22,
73,
7,
0,
-26,
-59,
7,
-3,
-30,
-44,
11,
18,
39,
16,
9,
8,
-19,
3,
-42,
-51,
-2,
-30,
-25,
28,
-23,
50,
-36,
5,
-28,
8,
59,
-71,
-13,
59,
35,
-48,
-53,
41,
-16,
15,
-20,
-6,
-35,
-6,
-10,
2,
-37,
-13,
27,
-2,
11,
-61,
-19,
-78,
-41,
-22,
-22,
41,
42,
3,
-14,
24,
80,
-4,
6,
50,
-25,
-15,
3,
-3,
-2,
-38,
1,
32,
-21,
28,
10,
-12,
-39,
-30,
16,
4,
-25,
15,
-22,
-20,
75,
4,
1,
-2,
24,
7,
-29,
-8,
25,
15,
-51,
32,
5,
-16,
-59,
-42,
6,
-19,
19,
-33,
-40,
19,
36,
48,
-17,
-3,
-8,
18,
-40,
-29,
-15,
15,
-21,
-33,
15,
51,
-32,
8,
-19,
31,
2,
-21,
3,
-32,
-12,
21,
31,
-19,
41,
12,
41,
-3,
7,
-58,
62,
-16,
47,
-57,
2,
0,
3,
63,
53,
-26,
20,
3,
5,
-6,
35,
-21,
-33,
-1,
-9,
-42,
-3,
-53,
-58,
28,
28,
-5,
-26,
-11,
0,
-2,
24,
-31,
-31,
-29,
-10,
10,
-13,
0,
38,
-23,
-57,
39,
-68,
-22,
2,
55,
-43,
-12,
-36,
42,
-33,
-21,
-21,
18,
-8,
8,
3,
-57,
11,
42,
-7,
34,
-30,
3,
-2,
-4,
-1,
22,
-25,
1,
-1,
36,
21,
31,
40,
-23,
-8,
61,
-41,
-12,
24,
-23,
2,
42,
-35,
-4,
-58,
-49,
27,
24,
-53,
26,
-42,
-19,
-3,
26,
7,
31,
1,
23,
-35,
4,
-40,
10,
0,
-21,
11,
-9,
-10,
-13,
51,
-44,
-41,
-24,
-62,
12,
55,
-37,
-27,
-21,
-29,
5,
2,
-30,
13,
11,
-26,
9,
11,
54,
0,
-18,
-10,
-25,
-3,
3,
0,
-1,
9,
13,
-25,
-27,
-14,
32,
35,
-16,
-36,
-16,
-3,
0,
-4,
-26,
22,
24,
2,
-3,
-5,
-19,
-38,
0,
31,
2,
-63,
-4,
-49,
-29,
-40,
52,
-35,
38,
-10,
-6,
-27,
29,
-1,
-27,
-47,
-10,
-47,
-9,
41,
9,
-28,
-50,
-35,
13,
-31,
-72,
18,
17,
4,
7,
24,
3,
13,
9,
4,
29,
-12,
6,
26,
67,
37,
39,
22,
-2,
-23,
-25,
7,
39,
-10,
33,
-26,
10,
-47,
-14,
-11,
7,
-20,
-12,
27,
13,
-1,
19,
29,
13,
19,
-15,
23,
-24,
-30,
1,
7,
39,
-30,
52,
-75,
8,
16,
-34,
-5,
-16,
0,
-25,
41,
2,
23,
-18,
31,
-37,
-46,
24,
30,
-17,
29,
11,
5,
-12,
33,
15,
29,
24,
44,
9,
-28,
-9,
-36,
-15,
67,
10,
-5,
-16,
46,
-26,
33,
27,
-6,
-2,
64,
-31,
-79,
12,
0,
53,
38,
1,
7,
-32,
-9,
30,
55,
11,
5,
11,
-24,
-21,
19,
-23,
-11,
30,
-2,
5,
-11,
47,
0,
46,
27,
-16,
-8,
-22,
35,
13,
-20,
32,
18,
3,
-15,
-61,
15,
-24,
13,
-11,
33
] |
Larnard, J.
While apprehending defendant on another matter, a detective of the Michigan State Police observed a 1967 Pontiac Grand Prix automobile, and a 1968 Pontiac GTO automobile parked in back of defendant’s premises. A routine check revealed that both these vehicles were stolen.
Defendant was convicted following a jury trial of the crime of unlawful possession of a motor vehicle, a violation of MCLA § 257.254 (Stat Ann 1968 Bev § 9.1954), and was sentenced. This appeal is brought as of right.
Margaret Ann Dunn, who was living with defendant at the time of his arrest, testified against the defendant, both at the preliminary examination and at trial relative to the defendant giving her the stolen 1968 GTO. This testimony was admitted by the trial court under the “scheme plan or system” statute, as was the testimony of Leonard Peído who testified that the 1968 GTO had been stolen from Ace Wilson’s Royal Pontiac in Royal Oak.
In showing that the defendant had altered the registration of the 1967 Pontiac, the people introduced the testimony of a detective from the Michigan State Police, and a certification from the Michigan Secretary of State relative to defendant’s automobile title history concerning his 1961 Pontiac. Prior to these two events, the trial court had stated that the detective was “one of the best.police officers they have in the Michigan State Police”.
The first claim of error raised by defendant was the admission into evidence of the testimony of Margaret Ann Dunn and Leonard Peklo relative to defendant’s possession of the 1968 GTO.
Under the Michigan statute, CL 1948, § 768.27 (Stat Ann 1960 Rev § 28.1050), the prosecution is not allowed to introduce evidence of another and distinct offense by the accused unless the question of intent is at issue, whereby such evidence is admissible for the limited purpose of establishing a “scheme, plan or system”. If the trial judge, in his discretion, finds the evidence to be relevant and that its probative value outweighs its potential prejudicial effect, he is free to admit such evidence subject to an instruction advising the jury as to its limited use. People v. Shaw (1968), 9 Mich App 558, 566. This requirement was complied with and we will not interfere with the trial judge’s discretion.
Secondly, defendant claims it was error to admit the certification of the Secretary of State regarding the title history of defendant’s 1961 Pontiac, we find no merit in snch a contention.
The Michigan Motor Vehicle Code, MCLA § 257.1 et seq. (Stat Ann 1968 Rev § 9.1801 et seq.) requires the Secretary of State to keep title records. Certified copies thereof are made admissible in the same manner as the original documents. MCLA § 600-.2107 (Stat Ann 1962 Rev § 27A.2107); MCLA 1970 Cum Supp § 257.207 (Stat Ann 1970 Cum Supp § 9.1907).
A 1968 amendment to § 257.207 provides that such certified records are “prima facie proof of the facts stated therein”. The facts stated in the certification do not directly tend to prove defendant’s possession of the 1967 Pontiac, while the hospital records in People v. Lewis (1940), 294 Mich 684, relied on by defendant, directly tended to prove that the defendant was practicing medicine without a license which was held to violate his constitutional right to confront his accuser. Defendant’s reliance on Lewis, supra, is also misplaced because the exception to the hearsay rule relied on in that case was the “shop book rule” and because the governing statute construed in that case has since been amended by MCLA § 600.2146 (Stat Ann 1962 Rev §27A.2146). We therefore find no error in the admission of the certification of the Secretary of State.
The third defect claimed by defendant is that the court committed prejudicial error by characterizing the detective as “one of the best police officers they have in the Michigan State Police”.
Defendant’s brief addresses itself to arguing that the jury is the sole judge of credibility, and that its province was invaded by the court. Defendant over looks the distinction between competency and credibility, whereas only the latter is within the province of the jury. Any possible ill effect occasioned by this inadvertent remark was compensated for in the court’s later instruction to the jury. Even had this not been cured, it amounts to nothing more than a trial irregularity. People v. Fry (1969), 17 Mich App 229; see also Fahy v. Connecticut (1963), 375 US 85 (84 S Ct 229, 11 L Ed 2d 171); Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705). Much more is required for us to reverse the decision of a trial judge. People v. Fred W. Thomas (1967), 7 Mich App 519; People v. Hoffman (1965), 1 Mich App 557.
Affirmed. The cause is remanded to the circuit court for cancellation of bond and execution of sentence.
All concurred. | [
27,
2,
-10,
-4,
-16,
-34,
-30,
11,
-9,
52,
44,
-17,
15,
9,
28,
21,
52,
8,
17,
-65,
31,
-33,
-27,
-19,
-5,
-18,
55,
32,
-35,
1,
-13,
20,
19,
-22,
9,
-27,
29,
22,
-20,
26,
-14,
-26,
27,
-3,
-41,
-22,
6,
-2,
13,
-54,
49,
3,
-9,
19,
14,
-8,
15,
-5,
26,
21,
20,
-14,
4,
-59,
-58,
-4,
26,
14,
-30,
-29,
6,
16,
-32,
1,
-7,
-4,
19,
37,
-11,
42,
12,
3,
47,
26,
43,
1,
-14,
-61,
-38,
-68,
-29,
9,
-40,
-3,
-24,
-70,
-10,
-20,
43,
-14,
-58,
33,
-10,
0,
17,
27,
-19,
-34,
8,
-6,
34,
-33,
22,
-34,
17,
-23,
-11,
-6,
43,
-17,
19,
-55,
41,
9,
22,
-42,
33,
-68,
11,
1,
14,
28,
57,
-15,
-9,
11,
-2,
0,
7,
23,
-11,
55,
28,
16,
13,
37,
-9,
0,
21,
46,
-25,
-45,
11,
22,
2,
-21,
-15,
-36,
15,
-11,
-60,
3,
-42,
-11,
2,
-12,
4,
20,
0,
-20,
2,
-6,
12,
5,
8,
-38,
-19,
9,
-26,
-11,
-9,
-34,
19,
-7,
-2,
-30,
0,
4,
-36,
-44,
36,
29,
17,
-7,
-8,
41,
26,
6,
-22,
-33,
61,
-36,
21,
-35,
24,
-6,
-7,
-31,
17,
17,
-2,
15,
35,
-21,
2,
-29,
30,
-24,
23,
0,
27,
-31,
15,
-3,
-5,
19,
-18,
12,
-5,
50,
36,
8,
18,
-22,
-67,
-29,
-20,
-19,
42,
35,
24,
-38,
2,
-26,
58,
0,
-33,
-50,
13,
-20,
17,
12,
-21,
-47,
-61,
-35,
57,
-17,
38,
61,
4,
24,
-15,
56,
-40,
-15,
46,
25,
-57,
-21,
-30,
-33,
-44,
32,
-33,
-21,
-30,
2,
2,
17,
19,
-12,
-25,
-24,
31,
-6,
-29,
47,
25,
-15,
-3,
9,
-8,
-10,
22,
47,
39,
-33,
-42,
58,
20,
62,
-11,
-3,
-15,
-53,
0,
-40,
-5,
58,
-4,
-26,
46,
36,
35,
61,
9,
-47,
31,
19,
-36,
43,
-65,
12,
19,
3,
16,
-26,
7,
-44,
15,
9,
-6,
-9,
-6,
-8,
-28,
-26,
-6,
40,
-9,
-24,
46,
1,
29,
10,
3,
27,
-61,
-60,
14,
11,
31,
-22,
6,
-23,
5,
-12,
3,
-17,
15,
33,
12,
56,
-10,
12,
-34,
-32,
-15,
74,
5,
-66,
-33,
60,
-30,
-69,
16,
-37,
-31,
30,
-31,
-2,
-44,
-10,
-36,
-26,
29,
-26,
12,
51,
-45,
-4,
-4,
-8,
18,
-32,
21,
23,
-14,
8,
-32,
57,
30,
-13,
-44,
-36,
8,
23,
4,
-20,
-42,
16,
31,
52,
-11,
0,
17,
-44,
-13,
-37,
10,
57,
3,
-23,
7,
-5,
-25,
38,
9,
10,
32,
20,
42,
-13,
36,
14,
-30,
-20,
53,
-43,
3,
2,
-21,
34,
38,
19,
-28,
-6,
15,
30,
44,
30,
-8,
-23,
-39,
52,
96,
5,
-1,
-15,
-14,
-83,
-2,
-36,
29,
-38,
-30,
-64,
42,
-2,
17,
26,
7,
12,
4,
-20,
9,
-4,
22,
-15,
-29,
30,
25,
-46,
-12,
-25,
-59,
-15,
11,
49,
3,
-8,
8,
47,
11,
-12,
13,
5,
11,
-7,
-37,
13,
-2,
7,
9,
17,
9,
-26,
27,
8,
-10,
39,
-33,
25,
-36,
-26,
21,
-14,
43,
39,
13,
-10,
35,
2,
-11,
31,
19,
-29,
-26,
-15,
33,
11,
67,
-5,
62,
-12,
24,
16,
-21,
-3,
14,
46,
-31,
-16,
-28,
-21,
13,
-46,
8,
15,
32,
4,
-21,
-36,
2,
-31,
63,
26,
-69,
31,
-26,
27,
52,
44,
44,
9,
-27,
-13,
81,
-36,
-38,
10,
15,
-20,
-21,
50,
44,
9,
-48,
25,
3,
33,
0,
11,
-21,
8,
-1,
25,
8,
-56,
-28,
-8,
21,
-6,
3,
24,
-65,
-25,
-51,
-39,
70,
-18,
-33,
53,
14,
-50,
-1,
12,
-19,
-46,
28,
-12,
-18,
-18,
-29,
37,
-67,
-34,
-11,
6,
26,
-24,
11,
-19,
-2,
-38,
-26,
11,
29,
-40,
-17,
-8,
-26,
34,
13,
-22,
19,
0,
-52,
3,
-7,
62,
3,
18,
57,
-11,
-29,
-3,
-10,
-81,
-82,
34,
-57,
-27,
27,
0,
-24,
-20,
-22,
-24,
0,
4,
-64,
-27,
13,
-17,
2,
-55,
0,
-2,
4,
-33,
0,
33,
-15,
31,
-15,
29,
11,
-39,
-3,
-15,
-28,
-35,
12,
17,
-29,
3,
38,
27,
-12,
28,
13,
9,
-5,
-46,
32,
-37,
-26,
-37,
1,
-38,
1,
3,
-38,
2,
21,
-2,
2,
-10,
-36,
22,
-18,
-2,
-8,
11,
-48,
36,
-25,
-37,
-49,
-4,
36,
15,
22,
21,
17,
-29,
-3,
-38,
50,
-22,
20,
-5,
16,
33,
2,
-2,
-4,
0,
-29,
43,
55,
-60,
-1,
-10,
20,
-42,
12,
-9,
-12,
53,
70,
56,
-34,
12,
49,
-3,
-40,
-25,
0,
21,
-23,
-49,
-33,
32,
-9,
29,
41,
2,
-45,
-35,
-1,
-53,
-28,
-3,
-28,
-2,
41,
-1,
-3,
-4,
-26,
40,
4,
17,
-41,
-4,
8,
-11,
0,
-2,
-21,
19,
1,
-2,
43,
11,
-2,
-26,
-9,
29,
39,
-17,
-10,
3,
9,
35,
-17,
1,
-9,
51,
-15,
-70,
14,
1,
24,
3,
-5,
-29,
16,
11,
-15,
-15,
-20,
-21,
11,
-53,
-34,
12,
-2,
30,
17,
41,
-27,
8,
28,
-12,
-21,
34,
50,
43,
-28,
24,
-2,
-9,
-28,
9,
33,
32,
-15,
4,
-40,
3,
31,
33,
-15,
32,
15,
15,
-12,
0,
-53,
-24,
10,
-9,
29,
-29,
-1,
1,
23,
26,
-24,
80,
45,
-4,
-7,
30,
-28,
14,
38,
-34,
36,
14,
-11,
-19,
13,
-42,
-1,
-4,
-15,
13,
9,
-51,
-67,
-2,
4,
17,
11,
-36,
9,
-2,
-49,
-9,
40,
15,
4,
-35,
-58,
8,
6,
-48,
14,
10,
-5,
-12,
-19,
14,
49,
1,
16,
6,
-27,
45,
22,
-66,
-35,
-9,
-43,
16,
-14,
-5,
-19,
-38,
70,
26,
17,
-11,
29,
-22,
-13,
-6,
-54,
3,
19,
5,
-22,
28,
-18,
16,
36,
1,
7,
22,
17,
13,
-14,
-23,
15,
-18,
5,
85,
21,
16,
44,
12,
-36,
3,
23,
76,
15,
-32,
-38,
-1,
-2,
-19,
22,
58,
-57,
-17,
-5,
6,
-32,
32,
79,
-83,
13,
27,
-47,
6,
-41,
-29,
-35,
12,
-9,
42,
-16,
-1,
8,
2,
2,
8,
16,
21,
38,
-27,
15,
-42,
15,
51,
-34,
-31,
-55,
9,
-8,
-5,
-39,
19,
-18,
-38,
-33,
37,
-3,
48
] |
Holbrook, J.
The only question involved in this case is whether the Common Pleas Court of the City of Detroit has jurisdiction to conduct a preliminary examination when the criminal offense charged is one not cognizable by a justice of the peace in the year 1967, and where the offense is alleged to have been committed in the City of Detroit.
Defendant, at the time a resident of the City of Detroit, was charged with violation of the Michigan election law, for failure to file an election report, contrary to CLS 1961, § 168.906 (Stat Ann 1970 Cum Supp § 6.1906), punishable as provided in CLS 1961, § 168.920 (Stat Ann 1956 Rev § 6.1920). On July 31, 1967, the circuit court grand juror found probable cause to issue a warrant under MCLA §§ 767.3, 767.4 (Stat Ann 1970 Cum Supp §§ 28.943, 28.944), ordering that defendant be arrested and brought before the Common Pleas Court for the City of Detroit for further proceedings. Following defendant’s arrest on August 1, 1967, he was arraigned on the warrant in common pleas court and, at that time, demanded a preliminary examination which was therein commenced on September 6, 1967. The judge of the common pleas court, finding that there was no probable cause to believe that a crime was committed or that defendant committed the same, dismissed the warrant and cancelled defendant’s bond on December 11,1967.
On December 18, 1967, the people filed, with the Wayne County Circuit Court, a complaint for superintending control, requesting that the common pleas court be directed to vacate its order of December 11, 1967, and that an order issue reinstating the warrant and binding defendant over for trial. The circuit court, on February 15, 1968, on the basis of oral arguments and briefs submitted, issued an order stating that it had jurisdiction to entertain the people’s complaint for superintending control; that a crime not cognizable by a justice of the peace had been committed; and that there was probable cause to believe defendant committed the same. The order directed that defendant be bound over for arraignment and trial as charged in the complaint and warrant. The common pleas court complied with the order and defendant was bound over to the Recorder’s Court for the City of Detroit.
On February 27, 1968, the people filed, in the recorder’s court, an information charging the original offense. Defendant was arraigned in the recorder’s court on the information and, following a pre-trial hearing on March 21, 1968, defendant filed a motion to quash the information. The motion was argued on April 19, 1968, at which time a panel of three recorder’s court judges, sitting en banc, convened “to make a determination as to the law in this matter”. On December 30, 1968, the recorder’s court panel issued a written opinion ruling that the warrant was improperly directed to the court of common pleas because that court has no jurisdiction to conduct a preliminary examination where the offense is committed in the City of Detroit.
This Court granted the people’s application for leave to appeal. The people maintain that the court of common pleas (successor to the justice of the peace courts, MCLA § 728.1 [Stat Ann 1970 Cum Supp § 27.3651]) had jurisdiction to conduct the preliminary examination in the instant case, relying primarily upon the code of criminal procedure, PA 1927, No 175, CL 1948, § 760.1 et seq. (Stat Ann 1954 Rev § 28.841 et seq.) which, they contend, reduced the jurisdiction of the recorder’s court by making it concurrent with that of justices of the peace in the county in certain criminal matters.
The code of criminal procedure provides that justices of the peace are magistrates, CL 1948, §§ 761.1, 764.1 (Stat Ann 1954 Rev §§ 28.843, 28.860); that in cases involving offenses not cognizable by a justice committed within the county, magistrates are empowered to issue a warrant for the accused’s arrest, the accused then being brought before such magistrate to he dealt with according to law, CL 1948, § 766.3 (Stat Ann 1954 Rev §28.921); and justices of the peace were empowered to perform all official acts and duties and to exercise jurisdiction in criminal matters arising in their county pursuant to CL 1948, § 762.2 (Stat Ann 1954 Rev § 28.845). The people further contend that an amendment to the code of criminal procedure in 1942 affected the jurisdictions of both the court of common pleas and the Detroit recorder’s court. That amendment, being PA 1941, No 264, states:
“In any city having more than 1 justice of the peace, or other judicial officer having the criminal jurisdiction of a justice of the peace, whenever a warrant shall be issued for the arrest of any person charged with any offense against the laws of the state, * * * any justice or other judicial officer of said city shall have jurisdiction to arraign, set bail, adjourn, try, take testimony in, conduct a preliminary examination, dismiss, hold for trial in circuit court, and to do any act or acts in connection with the trial and disposition of any such case brought before any such justices of the peace: Provided, however, That this shall apply only to the court or courts of justices of the peace in cities where said justices are paid a salary in lieu of fees.” CL 1948, § 774.47 (Stat Ann 1954 Rev § 28.1237 [2]).
The people cite the case of Kates v. Beading (1931), 254 Mich 158, for the proposition that the various laws promulgated by the legislature have frequently enlarged the jurisdiction of one court while diminishing the jurisdiction of another court without the necessity of any further legislation, and argue that the common pleas court, as successor to the justice of the peace courts in the City of Detroit, has power under the general laws, to hold certain proceedings, such as an examination, for a crime not cognizable by a justice of the peace, provided the crime is committed within the county.
The jurisdiction of the Detroit recorder’s court is specifically set forth in § 11 of the recorder’s court act, Local Acts 1883, No 326, and provides as follows:
“The said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed within the corporate limits of the city of Detroit, except in cases cognisable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this state within their respective jurisdictions, may, in like cases, issue and do by the laws of this state: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city.” (Emphasis supplied.) CL 1948, § 726.11 (Stat Ann 1962 Rev § 27.3561).
The foregoing section is subject to § 12 of the act which gives to Wayne County circuit court the power to issue indictments, and which provides as follows:
“All indictments for offenses committed within the limits of the city of Detroit, which may be found and presented to the circuit court for the county of Wayne, by the grand jury of said county, shall be forthwith certified and transmitted by the clerk of said circuit court to said recorder’s court, and thereupon said recorder’s court shall have as full and complete jurisdiction of said indictments as if the same had been originally presented to said recorder's court, and shall have full power to take all further proceedings thereon.” (Emphasis supplied.) CL 1948, § 726.12 (Stat Ann 1962 Rev § 27.3562).
In the case of People v. Ewald (1942), 302 Mich 31, the Supreme Court construed §§11 and 12 of the recorder’s court act and stated at pp 36, 39 and 40:
“It is urged by the prosecuting attorney that proceedings for ‘discovery’ of crime in the Wayne county circuit court do not come within the grant of exclusive jurisdiction to the recorder’s court of ‘prosecutions and proceedings’ for crimes committed in the city of Detroit; that the statutes relating to the recorder’s court provide that such court is to be governed by general law ‘so far as the same may apply’.
# # #
“The proceedings for the discovery of crime are not ‘prosecutions and proceedings * * * for
crimes’ within the meaning of the recorder’s court jurisdiction statute. The circuit judge conducting the investigation had the authority to cause apprehension of defendant by proper process under the general code of criminal procedure.
# # #
“Under 3 Comp Laws 1929, § 16301 (Stat Ann § 27.3562), * * * [i]t is our conclusion that the exclusiveness of jurisdiction of the recorder’s court does not extend to the initiatory step in the institution of proceedings, but merely to matters subsequent thereto connected with bringing an offender to trial; and that the process was properly returnable to the recorder’s court for the city of Detroit.” (Emphasis supplied.)
Also, see, People v. Robinson (1943), 306 Mich 167.
It is the rule of statutory construction that where we have a general statute and a special statute pertaining to the same subject matter, the special statute takes precedence over the general statute. In 22 Callaghan’s Michigan Civil Jurisprudence, Statutes, § 132, pp 494, 495, it is stated:
where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other is general, and would, if standing alone, include the same matter and thus conflict with the special act or provision, the special act must be taken as intended to constitute an exception to the general act or provision, * * * as the legislature is not to be presumed to have intended conflict.”
In Mayor of Port Huron v. City Treasurer of Port Huron (1950), 328 Mich 99, 112, it is stated:
“ ‘An act will not be construed to repeal or modify earlier legislation, if, giving such effect to the act, an apparent purpose would appear to disturb an established system of written law, covering a vital field in our system of government.’ 25 ROL,- p 919.
“ ‘The principle that the law does not favor repeals by implication is of especial application in the case of an important public statute of long standing, which should be shown to be repealed either expressly, or by a strong and necessary implication.’ 25 RCL, p 920. * * *
“ ‘ “When a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention shall be considered an exception to the general one.” 1 Lewis’ Sutherland, Statutory Construction, p 532, § 275.’ ”
See also, 82 CJS, Statutes, § 369, pp 839-845.
We therefore rule, on the basis of the recorder’s court act, as it has been interpreted in the Ewald case, supra, that the Common Pleas Court for the City of Detroit did not have jurisdiction to conduct a preliminary examination in this criminal case. We further rule that the warrant issued by the circuit court grand juror was a valid warrant, is still alive, and, although arriving in the Recorder’s Court for the City of Detroit by a circuitous route through the common pleas court, rather than directly from the clerk of the circuit court, it should be disposed of as provided by law, %.e., a preliminary examination should be held in recorder’s court, along with such further proceedings as may be required. Other issues raised on this appeal are not necessary to be determined in view of our decision herein.
Remanded for further proceedings not inconsistent with this opinion.
All concurred.
“The word 'indictment’ includes information, presentment, complaint, warrant and any other formal written accusation.” CL 1948, § 761.1 (Stat Ann 1954 Bev § 28.843). | [
1,
6,
22,
-5,
-52,
22,
-31,
-30,
-37,
44,
35,
-29,
-20,
27,
1,
3,
-9,
-8,
21,
-43,
-32,
-51,
6,
23,
-27,
-6,
5,
0,
-20,
-57,
-30,
-8,
17,
3,
-20,
-18,
56,
-15,
32,
9,
-24,
39,
-5,
-22,
-38,
-22,
7,
-8,
33,
-36,
-15,
21,
-21,
-13,
-2,
-1,
-12,
-41,
-14,
0,
29,
65,
28,
20,
-35,
5,
-3,
33,
31,
-41,
26,
-11,
-16,
-8,
13,
-2,
2,
-25,
44,
17,
19,
45,
30,
17,
33,
-21,
-11,
2,
-28,
-41,
0,
0,
-53,
21,
45,
-45,
-1,
-39,
30,
-6,
-25,
40,
-23,
27,
-66,
-21,
-15,
-32,
-30,
-71,
48,
23,
9,
-38,
-13,
3,
-13,
-25,
34,
-13,
-1,
-9,
22,
18,
-36,
-1,
-11,
-39,
18,
-7,
15,
74,
40,
-43,
-21,
-4,
24,
28,
-1,
42,
27,
22,
29,
-24,
35,
-14,
22,
6,
19,
22,
-40,
16,
17,
43,
-3,
7,
8,
-33,
-5,
0,
-6,
0,
-26,
-20,
-9,
-17,
-51,
27,
15,
-18,
-21,
16,
45,
-6,
-8,
-54,
-35,
20,
-24,
-13,
-29,
-13,
-16,
-19,
15,
23,
8,
-32,
-5,
-22,
44,
18,
-16,
31,
8,
35,
-12,
40,
-5,
-15,
9,
-4,
-31,
-28,
-25,
-5,
49,
-3,
-5,
24,
-46,
-59,
19,
19,
59,
-40,
-4,
-37,
22,
-16,
-24,
-9,
30,
23,
-19,
7,
-46,
34,
-8,
28,
62,
6,
-11,
-50,
-6,
1,
14,
-19,
1,
21,
-29,
9,
71,
44,
25,
14,
-16,
-24,
-36,
9,
27,
-40,
-5,
-29,
-24,
-25,
-18,
-41,
21,
69,
12,
10,
-52,
-32,
-21,
13,
68,
10,
-26,
-16,
-63,
57,
-49,
0,
-19,
18,
-62,
15,
29,
17,
-20,
-1,
-13,
68,
4,
4,
-5,
11,
14,
-3,
-56,
-15,
-49,
32,
3,
43,
40,
2,
-11,
2,
32,
48,
-2,
18,
5,
-61,
-10,
6,
-13,
10,
32,
2,
-14,
-9,
-6,
3,
53,
-30,
52,
-27,
-28,
-20,
-31,
14,
-73,
5,
38,
-27,
-10,
-42,
40,
-12,
3,
-7,
-11,
-16,
1,
50,
-24,
2,
-4,
-58,
16,
3,
44,
-6,
4,
26,
-28,
-32,
24,
21,
-18,
0,
-16,
-11,
-33,
-24,
7,
-20,
12,
-8,
0,
34,
11,
-56,
9,
-26,
5,
34,
-25,
-53,
0,
9,
4,
-19,
-10,
-39,
21,
30,
11,
-66,
-6,
0,
-1,
-25,
6,
0,
30,
4,
-10,
59,
21,
22,
0,
-17,
-21,
20,
12,
12,
22,
32,
13,
49,
-32,
-38,
-13,
76,
11,
-5,
-25,
20,
47,
2,
4,
1,
-1,
2,
-15,
-20,
-28,
34,
-5,
-69,
9,
11,
20,
8,
66,
39,
39,
-12,
32,
-40,
27,
2,
-49,
-40,
17,
17,
-14,
-73,
-11,
-8,
12,
-42,
0,
15,
8,
52,
31,
22,
46,
-41,
-9,
36,
56,
9,
-14,
-8,
-25,
-86,
-35,
8,
-32,
-5,
-48,
17,
8,
37,
-42,
1,
-51,
17,
-61,
-24,
-37,
31,
-4,
-8,
-5,
18,
-32,
-6,
-26,
10,
-1,
-73,
8,
73,
-3,
-6,
-7,
72,
61,
61,
-28,
-5,
-10,
16,
43,
23,
-14,
7,
28,
-7,
32,
12,
-28,
17,
-11,
6,
26,
87,
9,
-16,
10,
-27,
13,
-17,
6,
-16,
-32,
0,
-27,
30,
46,
-56,
23,
-2,
21,
20,
-29,
-7,
23,
2,
-55,
12,
22,
-36,
3,
30,
32,
-10,
10,
-31,
-14,
-70,
21,
-8,
-16,
2,
-9,
-57,
-2,
-24,
-2,
19,
-9,
32,
12,
-2,
76,
6,
-2,
7,
3,
-25,
53,
22,
-21,
48,
17,
-2,
15,
0,
-1,
43,
-6,
2,
22,
11,
-5,
4,
29,
11,
13,
-40,
-15,
-29,
-7,
5,
-14,
-7,
-5,
-8,
3,
11,
49,
2,
22,
24,
-3,
32,
37,
20,
16,
-8,
-43,
-45,
37,
-7,
-1,
-34,
1,
21,
-32,
-32,
-42,
5,
-47,
-71,
60,
39,
12,
-89,
39,
-21,
-15,
-18,
-19,
6,
-30,
22,
-4,
3,
20,
18,
-5,
-19,
-8,
8,
18,
-15,
42,
39,
-67,
-51,
1,
-2,
-14,
19,
-22,
-14,
26,
-37,
-4,
-15,
4,
-44,
43,
19,
-53,
-28,
28,
31,
4,
-6,
15,
24,
-6,
-24,
30,
-25,
-8,
-64,
5,
-16,
21,
-12,
-22,
10,
-36,
2,
12,
-37,
-71,
39,
-7,
-27,
6,
3,
-7,
-13,
11,
-20,
13,
26,
40,
2,
-7,
3,
24,
26,
-33,
25,
14,
-4,
20,
-39,
-18,
1,
-11,
44,
-23,
-6,
-10,
-34,
3,
45,
-13,
-35,
-8,
-4,
13,
-15,
-9,
16,
40,
-29,
53,
-27,
31,
-3,
-2,
8,
36,
27,
-33,
27,
-20,
21,
6,
-26,
0,
-11,
56,
30,
-37,
-11,
16,
27,
49,
-4,
-43,
32,
29,
11,
-24,
1,
21,
48,
5,
-47,
22,
7,
14,
30,
0,
0,
-24,
1,
8,
-24,
-23,
54,
-21,
-51,
19,
-37,
8,
39,
20,
-19,
-30,
-24,
15,
-4,
-13,
-44,
27,
-89,
-6,
-25,
0,
-10,
11,
-17,
18,
35,
40,
13,
55,
-33,
-57,
37,
-31,
1,
22,
29,
-42,
20,
-20,
-49,
4,
-20,
0,
-8,
18,
-48,
17,
-2,
2,
-20,
-33,
53,
-1,
-40,
-10,
23,
17,
61,
55,
24,
-24,
-39,
3,
-13,
17,
67,
51,
9,
-18,
-4,
-58,
40,
-45,
10,
26,
6,
-19,
58,
-24,
-18,
4,
49,
59,
18,
-27,
20,
17,
34,
-44,
-1,
-9,
10,
22,
-44,
24,
0,
-33,
11,
-17,
62,
-3,
2,
-15,
31,
-5,
-36,
-37,
-14,
50,
-24,
-29,
-11,
-35,
-27,
-34,
42,
-13,
20,
0,
-7,
7,
19,
0,
8,
-39,
-45,
-6,
-6,
0,
-19,
15,
-11,
10,
-6,
-58,
4,
-18,
-22,
-18,
-5,
-11,
-9,
-43,
-15,
42,
-5,
36,
-9,
1,
23,
-38,
-43,
9,
-17,
15,
14,
-40,
-30,
-40,
-37,
-14,
-39,
53,
-10,
54,
-20,
4,
1,
-46,
-7,
17,
53,
-49,
11,
6,
2,
-43,
-53,
1,
29,
17,
14,
32,
-34,
10,
10,
-11,
33,
22,
-25,
43,
59,
-40,
-39,
-9,
40,
-1,
13,
-4,
23,
18,
-20,
-40,
37,
11,
0,
-41,
7,
15,
25,
5,
-43,
5,
-3,
-50,
10,
7,
-36,
-13,
-18,
-81,
23,
-25,
-29,
-3,
66,
60,
36,
-2,
-7,
52,
-18,
47,
8,
4,
44,
20,
41,
35,
45,
-25,
12,
-15,
-14,
-87,
-38,
-13,
39,
-32,
22
] |
Bronson, J.
Defendant, Arthur F. Scheffler, is appealing a decision of the Muskegon County circuit court that a verbal sale was concluded between plaintiff and defendant and the consequent award of $2,000 to plaintiff as the contract price. In September, 1964, defendant sought to buy from plaintiff brick located on plaintiff’s property. A unit price was agreed upon. Several days after the initial agreement, plaintiff offered the entire lot of brick to defendant for the sum of $1,000. About a month later, plaintiff made further offer to the defendant of stone and mill irons located at another of his properties, the sum for the stone and mill irons to be a second payment of $1,000. Plaintiff claims both offers were accepted at the time they were made. Defendant claims to have purchased brick at a per unit cost of two cents, tendering to plaintiff a check for $174.25. Defendant further claims that plaintiff gave him the stone and mill irons he took. Plaintiff refused the check when offered and brought an action for goods sold.
The cause was tried without a jury in Muskegon County circuit court. After plaintiff’s testimony, defendant moved for summary judgment on the basis of the statute of frauds. The trial court held that the transaction was within the first clause of MCLA § 566.132 (Stat Ann 1953 Rev § 26.922) as an agreement to be performed within one year. The trial court concluded that “there was completed sale, delivery and acceptance between the plaintiff and the defendant of all the building materials * * * for the sum of $2,000.” From this decision, defendant appeals.
At issue are two questions:
1. Whether the trial court erred in concluding that plaintiff had by preponderance of the evidence proved a contract between plaintiff and defendant for purchase of brick for $1,000 and a contract for purchase of stone and mill irons for $1,000.
2. Accepting the fact that contracts for purchase did exist, whether the trial court erred in measuring the damages to which the plaintiff was entitled.
It is defendant’s contention that there was no “meeting of the minds” and hence no contract. As illustration, defendant points out that the testimony of the parties as to what occurred is contradictory and, further, that the testimony of plaintiff’s substantiating witness, Mr. William Gast, was in contradiction to the version of the transaction as alleged by plaintiff. Defendant argues that since plaintiff thought he had sold all brick and stone for a set price, whereas defendant thought he had purchased brick at a per unit price, there was no meeting of the minds. The trial court looked at the words and acts of the parties to determine assent. The trial court did this in view of the language of MCLA § 440.2201(3) (c) (Stat Ann 1964 Bev § 19:2201 [3] [c]). Under subsection 3(c), the trial court found two questions to be answered:
1. Was there a delivery of the goods?
2. Was there an acceptance of the goods by defendant?
MCLA § 440.2308(b) (Stat Ann 1964 Bev § 19.2308 [b]) states:
“[I]n a contract for sale of identified goods which to the knowledge of the parties at the time of contracting are in some other place, that place is the place for their delivery * * * ”.
Here, both parties were aware of the physical location of the goods in question. Therefore, the Ewing Boad and the Mill Iron Boad properties were the place of delivery. When bulky items such as these are involved, “it was all the delivery that could well have been made under the circumstances without requiring [the buyer] to remove the hogs from [the seller’s] farm.” Webster v. Anderson (1880), 42 Mich 554, 555.
Acceptance of the delivery “cannot be predicated upon mere statements * * * but must be shown by some act or acts on the part of the defendant, unequivocally indicating such acceptance.” Yeiter v. Campau (1913), 174 Mich 94, 101, 102. “Acceptance of a part of any commercial unit is acceptance of that entire unit.” MCLA § 440.2606(2) (Stat Ann 1964 Bev § 19.2606 [2]). Here, defendant accepted part of the brick and part of the stone by going to the place of delivery, hauling some of each to his building site and then incorporating the materials into his building. See Wilcox v. Young (1887), 66 Mich 687 (removal of portion of funeral home inventory, evidence of the sale of the entire inventory).
Another significant act of acceptance occurs when the buyer “does any act inconsistent with the seller’s ownership.” MCLA § 440.2606(1) (e) (Stat Ann 1964 Rev § 19.2606 [1] [c]). In the present ease there was evidence of defendant’s use of some of the materials from both sites. Further, there was testimony that defendant had engaged in selling some of the excess materials at their original site.
Finally, the trial judge found that “it is most difficult for this court to believe the defendant under all the evidence and testimony adduced in this case.” From a review of the record and the detailed opinion of the trial court, it is evident that the trial judge was very careful in his review of the case before reaching his decision. Accordingly, since the trial judge was in a better position to weigh the credibility of the witnesses, we find no compelling reason why this Court should not accept the lower court’s findings. We find no error as to issue number one.
MCLA § 440.2703 (Stat Ann 1964 Rev § 19.2703) indicates the general remedies of the seller. Among them is (e), recovery of the price if proper under MCLA §440.2709 (Stat Ann 1964 Rev § 19.2709). MCLA § 440.1106(1) (Stat Ann 1964 Rev § 19.1106 [1]) states that remedies are to be liberally administered “to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” MCLA § 440.2709(1) (a) permits the seller to recover the price of “goods accepted”. Further, under MCLA § 440.2606(2) (Stat Ann 1964 Rev § 19.2606 [2]) partial acceptance equals acceptance of the entire lot.
In Meagher v. Cowing (1907), 149 Mich 416, 422, 423, quoting from Dustan v. McAndrew, 44 NY 72, the Michigan Supreme Court accepted the concept of liberality in remedy:
“ ‘The vendor of personal property in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself: (1) He may store or retain the property for the vendee and sue him for the entire purchase price; (2) he may sell * * * and recover the difference between the contract price and the price obtained on such resale; or (3) he may keep the property * * * and recover the difference between the market price * * * and the contract price.’
“The plaintiffs in this case chose the first of said remedies. They had a right to choose it and therefore it was error for the trial court to instruct a verdict against them.”
See, also, MCLA § 440.1106(1) (Stat Ann 1964 Rev § 19.1106 [1]).
Defendant claims MCLA § 440.2708 is controlling as to damages. (He apparently is construing his actions as “non-acceptance” or “repudiation”.) Section 440.2709(3), however, indicates that § 440.2708 becomes operable when the seller is found not to be entitled to the price. Thus, if there is no acceptance, then the evidence of verbal contract might be insufficient. However (as stated above), defendant not only removed part of the materials from their situs but, further, acted in a way inconsistent with plaintiff’s ownership of the remaining brick in that he sold some of the remaining materials.
The trial judge found that there was evidence supporting plaintiff’s claim. We cannot say that this was error.
Affirmed. Costs to plaintiff.
We also take cognizance of the fact that the commentary under that section states that an action for the price is available “where the buyer has accepted the goods.”
Again, the question of credibility is one better weighed by the trial court. | [
-8,
17,
-20,
0,
-17,
-1,
2,
41,
11,
17,
65,
17,
28,
-17,
2,
-32,
16,
-20,
14,
-28,
9,
-19,
9,
11,
-20,
-14,
6,
-24,
0,
-16,
-21,
0,
-28,
-2,
-39,
47,
25,
0,
-24,
-35,
0,
-14,
24,
-16,
-12,
-32,
0,
-54,
23,
-14,
8,
-10,
4,
-25,
-44,
-34,
-14,
19,
-8,
0,
30,
-36,
7,
-6,
24,
-8,
12,
-13,
29,
-4,
-36,
-25,
40,
-12,
21,
-20,
-1,
29,
-31,
0,
45,
-6,
56,
-6,
-27,
45,
0,
-19,
-25,
-11,
-30,
16,
32,
11,
56,
16,
10,
28,
8,
35,
7,
14,
-30,
18,
5,
12,
-46,
-27,
-47,
4,
-29,
-26,
41,
-18,
-23,
-5,
-28,
2,
16,
16,
26,
14,
-1,
13,
26,
-17,
-10,
-36,
-5,
-29,
40,
18,
-3,
81,
-16,
-10,
32,
4,
-40,
-37,
10,
4,
-45,
-16,
6,
4,
24,
-27,
-23,
-29,
-94,
-64,
35,
31,
10,
-28,
20,
-40,
4,
-65,
59,
0,
1,
15,
-40,
-48,
7,
-9,
16,
-13,
-7,
7,
27,
-50,
25,
16,
39,
14,
-15,
6,
6,
-3,
6,
-14,
7,
-14,
-4,
12,
7,
21,
38,
-3,
-59,
32,
-27,
47,
-31,
40,
5,
-39,
-30,
-45,
29,
-8,
-9,
-7,
23,
-29,
-15,
8,
-18,
10,
-14,
-42,
38,
26,
-11,
-12,
-2,
-28,
32,
-36,
22,
74,
-18,
-53,
30,
14,
24,
-15,
-13,
-8,
0,
10,
-31,
-12,
31,
17,
50,
-35,
-21,
-51,
-26,
18,
-4,
-18,
-27,
0,
8,
14,
-30,
-3,
-21,
20,
-15,
-43,
4,
28,
-23,
-10,
39,
50,
-45,
7,
-21,
-10,
-12,
-10,
-44,
13,
-29,
-18,
17,
58,
-9,
-16,
-47,
27,
2,
9,
38,
-10,
2,
-37,
18,
38,
5,
50,
-6,
3,
42,
-3,
26,
-51,
27,
28,
3,
0,
10,
-9,
-25,
-4,
41,
-35,
-8,
7,
3,
-6,
-14,
-7,
-3,
-37,
25,
22,
9,
-7,
-17,
14,
19,
-59,
6,
-7,
-33,
26,
45,
-41,
4,
-38,
-24,
-28,
-44,
-10,
14,
-7,
-4,
-29,
18,
-7,
13,
37,
24,
36,
13,
-9,
6,
9,
-23,
-3,
31,
-29,
-6,
-67,
-63,
47,
-4,
13,
-33,
14,
-11,
43,
47,
68,
-2,
21,
-13,
35,
-8,
-7,
-18,
51,
-5,
39,
-17,
14,
-26,
-64,
-36,
-43,
-41,
56,
14,
28,
28,
-21,
30,
-25,
-4,
12,
-22,
14,
-57,
-12,
29,
-9,
-20,
9,
-14,
-49,
-9,
-58,
17,
18,
0,
-42,
-46,
-25,
6,
20,
-37,
11,
0,
-38,
-8,
-23,
10,
-66,
33,
38,
3,
8,
32,
30,
13,
-1,
39,
-28,
-9,
4,
-33,
9,
-15,
34,
7,
-24,
20,
-15,
-42,
-1,
-41,
29,
-38,
45,
-19,
-8,
39,
15,
-67,
28,
27,
14,
27,
0,
11,
6,
19,
38,
1,
-64,
37,
-37,
41,
-23,
16,
-23,
-7,
-42,
-17,
-36,
27,
4,
38,
39,
23,
-4,
5,
6,
4,
-9,
22,
40,
11,
21,
-2,
23,
-13,
-47,
-32,
-2,
-8,
-16,
-8,
-27,
36,
5,
-16,
8,
-11,
17,
18,
12,
-48,
2,
-7,
-17,
-5,
5,
66,
-30,
-4,
42,
-14,
20,
-7,
-10,
2,
30,
28,
19,
-7,
53,
-6,
-12,
-21,
2,
4,
22,
-14,
6,
-4,
-20,
19,
-24,
7,
-50,
48,
-21,
1,
-13,
27,
7,
-55,
31,
13,
-17,
-26,
7,
-5,
3,
3,
17,
-43,
-44,
37,
-14,
-33,
31,
6,
18,
0,
-5,
-14,
23,
8,
4,
45,
-30,
-7,
-35,
11,
15,
-17,
-14,
10,
1,
8,
-56,
-43,
-39,
27,
-7,
0,
26,
-23,
-51,
0,
33,
44,
2,
25,
21,
-27,
20,
22,
-9,
-42,
-24,
15,
-8,
35,
5,
28,
17,
-74,
3,
-16,
-63,
-43,
23,
-11,
37,
7,
5,
4,
-20,
8,
-5,
2,
-39,
0,
-1,
12,
-8,
0,
-32,
-22,
34,
-17,
6,
-79,
19,
-12,
-29,
3,
17,
-26,
-2,
59,
0,
-72,
-24,
7,
23,
-25,
-15,
0,
-20,
-34,
15,
2,
-10,
-12,
17,
43,
7,
0,
-6,
9,
-35,
-1,
-30,
44,
-4,
-24,
-30,
-17,
3,
53,
-28,
18,
2,
34,
-19,
35,
-42,
4,
-38,
-27,
32,
34,
10,
30,
-13,
14,
-4,
3,
6,
3,
-5,
9,
-38,
7,
13,
-23,
-37,
15,
18,
17,
-4,
1,
-30,
-2,
17,
-19,
7,
-51,
48,
29,
-32,
25,
26,
2,
-12,
-20,
43,
10,
33,
-3,
-15,
-39,
6,
-17,
-29,
48,
-50,
-16,
-57,
45,
-2,
-5,
-15,
-24,
20,
13,
18,
-21,
29,
-24,
7,
-28,
-6,
-11,
-4,
-13,
-13,
-36,
-21,
75,
4,
-19,
-11,
9,
4,
8,
10,
19,
20,
-3,
-10,
-35,
-5,
20,
63,
-18,
-47,
-8,
-19,
17,
-22,
0,
-9,
-17,
5,
-27,
7,
-14,
0,
13,
31,
26,
-31,
18,
-21,
-28,
41,
-19,
-40,
7,
11,
12,
26,
11,
-7,
-1,
14,
-30,
4,
58,
37,
49,
-32,
10,
0,
45,
12,
15,
14,
-38,
3,
25,
21,
-10,
-2,
2,
-39,
24,
29,
-4,
1,
12,
-9,
9,
-17,
-66,
21,
-59,
-6,
-32,
-26,
-22,
14,
12,
-9,
-6,
25,
3,
-5,
-1,
1,
-16,
-15,
9,
-21,
-14,
21,
54,
19,
0,
-21,
-34,
-5,
-48,
-16,
8,
-3,
0,
34,
-30,
28,
20,
-24,
52,
29,
-37,
18,
35,
-50,
-42,
-26,
3,
-9,
17,
-9,
-16,
-20,
61,
-1,
-10,
-6,
18,
-2,
-12,
-5,
49,
-4,
-44,
-22,
22,
-31,
3,
63,
24,
-2,
-35,
30,
5,
-54,
-34,
-32,
29,
-8,
33,
-16,
35,
-15,
51,
2,
-14,
14,
13,
51,
16,
-9,
2,
-16,
-30,
25,
-6,
0,
37,
-4,
20,
-2,
-23,
-10,
-23,
-5,
-24,
31,
-18,
18,
10,
-5,
0,
11,
72,
-30,
18,
-19,
16,
9,
4,
8,
0,
-2,
10,
-5,
1,
40,
5,
57,
33,
60,
51,
43,
-35,
-16,
-21,
-25,
-15,
-58,
23,
6,
4,
-7,
54,
30,
37,
44,
18,
19,
-30,
7,
7,
-41,
11,
10,
55,
-13,
-16,
-7,
18,
-37,
-19,
29,
0,
-21,
-7,
12,
-23,
11,
7,
5,
21,
-8,
7,
8,
10,
-19,
9,
-35,
13,
1,
15,
-11,
41,
-35,
40,
-16,
8,
-39,
-17,
28,
52,
-22,
-24,
-4,
-36,
27,
8,
-38,
22,
39,
-4,
54
] |
Per Curiam.
On May 22, 1969, defendant, who was represented by retained counsel, pled guilty to the crime of conspiring to violate the gambling laws of this state. He was sentenced on August 14, 1969 to a term of 4-1/2 to 5 years in prison. His petition to withdraw his plea of guilty and to grant a new trial was denied by an order and written opinion of the trial court. Defendant appeals from that order.
A motion to withdraw a plea must be supported by persuasive arguments showing that the plea was not voluntarily made with understanding of the nature of the charge. People v. Zaleski (1965), 375 Mich 71; People v. Pulliam (1968), 10 Mich App 481. From its opinion and the lower court record, it appears clear that the trial court carefully and properly reviewed defendant’s assertions. We find no abuse of discretion in his refusal to allow defendant to withdraw his plea of guilty.
The trial court’s findings of fact are supported by the record at the testimonial hearing and refute the defendant’s claims of error:
“1. The defendant informed the court, in answer to inquiry on two separate occasions, that,
“(a) he had been given no promises or assurance of leniency in exchange for his plea of guilty;
“(b) he had not been forced or coerced to enter a plea of guilty;
“(c) he was pleading guilty freely and voluntarily.
“2. The court, at the time of entry of plea of guilty, ascertained from the defendant that he, in fact, had committed the crime charged against him and to which he entered a plea of guilty.
“3. The defendant entered a plea of guilty voluntarily, advisedly, intentionally and understandingly.
“4. Several conferences were held within and without the presence of the court between the prosecuting attorney and counsel for the defendant, but at none of these conferences is there any showing that any promise or assurance was made by either the court or the prosecuting attorney or any member of that office as to any special consideration or leniency to be given to the defendant in return for his plea of guilty, or that any reference by the prosecuting attorney to a dismissal of a different charge in another court was, in fact, a factor in obtaining a plea of guilty from the defendant.
“5. The defendant had full opportunity to consider the plea which he entered to this charge. The original date of trial was set for February 6, 1969 and was subsequently adjourned until February 7, 1969. At this last date, the defendant informed the court, through his counsel, that he would enter a plea of guilty to the charge. By agreement of counsel, the matter was adjourned until May 3, 1969, at which time the defendant entered a plea of guilty to the said charge. The adjournment was granted so as not to jeopardize a liquor license issued to the defendant’s establishment.
“6. At the sentencing, some three months later, on August 14, 1969, the defendant again reiterated his position that no promises or special consideration of leniency were made to him in exchange for his plea of guilty.
“7. There is no showing that the plea of guilty was induced by an unfilled promise by either the prosecuting attorney or court.
“8. An assurance by the prosecuting attorney that another criminal case against the defendant would be nolle prossed, although in fact performed, was not in exchange for a plea of guilty.
“9. Counsel for the defendant acted in a competent and well-informed manner in protecting the rights of the defendant.”
We consider that this case is clearly distinguishable from In re Valle (1961), 364 Mich 471, which is relied on by the defendant. There is nothing in the record here which approaches the statement by the defense attorney found in the record made in open court in In re Valle, supra, upon which the decision of the Court there turned:
“I have talked with the prosecuting attorney who informs me that under the circumstances he would not he opposed to probation with a 6-months jail term; and the defendant wishes to enter a plea of guilty to the second count.” In re Valle, supra, at p 474.
See also People v. Best (1970), 21 Mich App 156.
Since defendant’s plea was accepted on May 22, 1969, we consider that the decisions released by our own Supreme Court on May 8, 1968 command an affirmance here as there is no assertion of innocence nor that there was a miscarriage of justice. People v. Hobdy (1968), 380 Mich 686; People v. Dunn (1968), 380 Mich 693; People v. Winegar (1968), 380 Mich 719.
Affirmed.
MOLA §§ 750.303-750.306; 750.157a (Stat Ann 1954 Rev and 1970 Cum Sup §§ 28.535-28.538, 28.354[1]). | [
58,
-5,
17,
10,
-44,
6,
-12,
33,
-69,
10,
38,
-15,
-23,
-22,
6,
-19,
44,
12,
23,
3,
9,
-6,
15,
-14,
-24,
12,
48,
37,
2,
-12,
33,
55,
0,
0,
-35,
-18,
15,
3,
-9,
9,
-55,
-3,
-37,
-2,
-27,
-4,
0,
-14,
54,
-46,
38,
57,
24,
-8,
-35,
8,
40,
9,
8,
16,
-22,
4,
-57,
19,
-17,
-53,
6,
45,
3,
-13,
-18,
-21,
-4,
23,
35,
1,
26,
50,
6,
36,
1,
5,
24,
-26,
7,
13,
56,
-25,
20,
-20,
40,
35,
-23,
-71,
-7,
0,
0,
4,
16,
-55,
-72,
14,
-5,
-15,
23,
-8,
21,
-14,
5,
45,
-9,
-3,
1,
-37,
-8,
-10,
-33,
-55,
-42,
-64,
-5,
-24,
16,
67,
-8,
-18,
-22,
-49,
8,
-49,
-10,
43,
-4,
-38,
39,
9,
8,
-23,
18,
34,
-4,
25,
53,
-20,
41,
6,
-64,
41,
31,
35,
-31,
-25,
0,
-12,
20,
-17,
-50,
-32,
-7,
47,
3,
38,
-95,
-5,
-10,
-22,
-31,
-4,
44,
-50,
-31,
-17,
41,
-13,
36,
-12,
-14,
18,
-19,
49,
-68,
59,
3,
-9,
36,
4,
40,
-3,
-33,
-56,
1,
-15,
39,
-12,
89,
14,
-7,
76,
25,
18,
7,
-58,
-2,
2,
3,
-9,
-19,
-14,
13,
-19,
-38,
-6,
0,
-55,
-58,
1,
-4,
-34,
17,
20,
-48,
-8,
-43,
5,
-47,
16,
26,
22,
-25,
41,
-17,
1,
10,
44,
-1,
40,
33,
-21,
60,
0,
-54,
-17,
43,
-14,
35,
12,
-3,
50,
-55,
-25,
-31,
39,
29,
26,
-40,
-37,
25,
-6,
-31,
-3,
-22,
31,
-19,
7,
-27,
-19,
-5,
-47,
-13,
-43,
38,
-34,
-15,
-16,
21,
-5,
-19,
30,
-23,
1,
-6,
5,
12,
-12,
-17,
45,
-64,
37,
35,
15,
48,
22,
-8,
13,
61,
11,
21,
30,
-48,
-2,
38,
-4,
24,
-18,
12,
-17,
16,
5,
-60,
-34,
59,
9,
-4,
33,
19,
-44,
-8,
-43,
65,
-15,
-25,
-17,
44,
3,
-13,
-72,
58,
-12,
65,
0,
-27,
34,
-12,
-16,
-56,
14,
-21,
-45,
-16,
5,
-17,
-19,
-10,
-32,
16,
-5,
13,
37,
-45,
-3,
-4,
-28,
50,
-18,
15,
2,
0,
-47,
-1,
-44,
18,
-10,
-23,
4,
23,
-7,
20,
24,
57,
69,
10,
-59,
-26,
-54,
-22,
1,
43,
-56,
-31,
-4,
-60,
-24,
38,
9,
-7,
-30,
11,
-14,
-31,
40,
-16,
-19,
-40,
-55,
9,
28,
17,
14,
18,
-1,
45,
-11,
22,
-28,
4,
7,
-15,
36,
5,
34,
-5,
52,
50,
39,
-38,
-71,
-8,
19,
43,
-36,
6,
-25,
16,
26,
3,
28,
-25,
19,
0,
-35,
8,
-9,
13,
-59,
24,
56,
-25,
-11,
34,
0,
24,
6,
-1,
8,
70,
13,
-25,
-30,
-34,
23,
14,
54,
25,
-37,
-26,
43,
29,
-16,
-8,
-9,
-6,
-3,
-70,
-6,
78,
-35,
-70,
16,
42,
4,
55,
-2,
-8,
53,
-14,
-16,
19,
8,
64,
6,
29,
36,
21,
-22,
4,
-14,
-4,
-57,
2,
-19,
-23,
-8,
1,
18,
-51,
10,
5,
0,
-51,
48,
-18,
25,
2,
12,
27,
43,
-1,
-35,
71,
36,
6,
7,
13,
-4,
19,
3,
12,
10,
-8,
37,
5,
-43,
5,
-20,
-9,
26,
-61,
-17,
-20,
12,
49,
-55,
-8,
-82,
33,
-29,
-13,
-48,
-5,
-19,
28,
54,
-16,
55,
35,
-5,
-2,
9,
73,
32,
1,
-16,
14,
6,
-18,
18,
-10,
-4,
4,
-49,
-23,
22,
59,
8,
-18,
-3,
-9,
31,
4,
17,
-4,
0,
-7,
31,
25,
8,
14,
-27,
30,
-44,
50,
54,
0,
-41,
13,
17,
16,
-7,
4,
-44,
-19,
23,
41,
-35,
20,
-20,
-36,
-29,
-4,
39,
20,
18,
-66,
7,
37,
8,
14,
-6,
29,
-15,
74,
-30,
-38,
-8,
-12,
9,
-1,
-42,
-24,
37,
41,
5,
-11,
-78,
20,
-68,
-23,
11,
-59,
-5,
-13,
-8,
-6,
-12,
-63,
-5,
-50,
29,
-47,
32,
11,
66,
-18,
-32,
55,
24,
-34,
5,
14,
32,
-2,
4,
47,
-18,
0,
-15,
-22,
61,
16,
-7,
-1,
27,
-66,
-29,
-20,
33,
33,
2,
37,
-9,
-55,
-23,
8,
-12,
3,
-7,
6,
-25,
-3,
7,
-1,
-21,
28,
-85,
-7,
-20,
0,
15,
24,
22,
-42,
35,
-12,
-17,
8,
3,
25,
5,
36,
-10,
11,
38,
46,
-17,
-11,
-34,
15,
-43,
-6,
8,
-45,
33,
0,
11,
-28,
-3,
-94,
31,
-45,
9,
-34,
20,
25,
64,
22,
13,
17,
-60,
-5,
-35,
19,
10,
22,
27,
8,
45,
10,
-8,
-14,
-2,
0,
11,
-59,
-4,
-75,
24,
0,
-11,
21,
-22,
68,
-44,
11,
72,
9,
59,
37,
-12,
-40,
-5,
-46,
77,
13,
3,
-25,
23,
0,
14,
16,
32,
-43,
-29,
27,
22,
-38,
0,
-35,
-17,
1,
17,
13,
9,
-1,
-10,
17,
-44,
-17,
25,
-25,
9,
-27,
10,
-40,
46,
26,
14,
2,
19,
0,
-2,
-37,
-9,
13,
28,
-32,
-12,
21,
18,
54,
-13,
-2,
39,
-31,
-12,
0,
-43,
8,
-52,
21,
-48,
39,
21,
-54,
-9,
-57,
-8,
10,
-19,
-29,
-48,
3,
-51,
16,
30,
-16,
-17,
26,
-14,
-45,
36,
32,
-20,
-6,
59,
8,
-18,
0,
-55,
-13,
41,
47,
-10,
-29,
-23,
-26,
27,
15,
24,
35,
-66,
-5,
14,
-10,
-33,
8,
36,
1,
-7,
49,
-82,
-28,
-7,
14,
9,
22,
35,
-28,
-2,
-28,
-36,
-12,
-15,
8,
-44,
37,
-47,
-11,
-52,
-60,
33,
50,
46,
-43,
25,
44,
-23,
1,
-14,
-6,
-2,
45,
-14,
-16,
-26,
32,
-2,
15,
30,
-38,
85,
-6,
39,
35,
0,
5,
-37,
-32,
37,
0,
-4,
-7,
51,
5,
38,
12,
-36,
12,
0,
-46,
10,
11,
0,
-12,
-78,
-19,
15,
39,
-7,
14,
6,
-10,
-52,
-75,
15,
-38,
-4,
-68,
-22,
-27,
47,
-20,
-7,
10,
4,
-30,
-9,
19,
4,
13,
5,
10,
-11,
-18,
-26,
17,
11,
17,
-6,
-8,
69,
9,
-54,
13,
-10,
1,
-12,
42,
-22,
-13,
-79,
14,
-33,
-15,
-26,
0,
52,
1,
39,
-24,
-43,
28,
-25,
14,
12,
4,
-20,
9,
-71,
-20,
-9,
-25,
4,
2,
-17,
-28,
6,
9,
26,
-2,
18,
24,
4,
43,
-44,
-20,
-4,
8,
-1,
-38,
-19,
-76,
23,
-47,
39
] |
Bird, J.
Plaintiff alleges in his bill that defendants are committing repeated trespasses on his land by removing sand and gravel therefrom under a claim of right. He seeks a decree which will quiet his title. He also seeks a permanent injunction to restrain the removing of sand and gravel, and an accounting for such sand and gravel as may have been wrongfully removed. The defendants’ answer denies the several trespasses charged and claims title to the land in question. After a hearing the trial court granted the relief prayed by plaintiff and defendants have appealed.
The land which is in dispute is situated on the north end of Dickinson island, Clay township, St. Clair county, and is known as a part of St. Clair Flats. The premises in question were formerly the Cartwright tract or Cartwright island, and are situated on the north end of Dickinson island. It is the contention of plaintiff that the Cartwright tract started at a certain point in the Middle Channel marked by a post and ran thence north 74 degrees west to the waters on the opposite side of the island, called the “Sny Borau.” Defendants contend that the post was situate 30 rods north of the point fixed by plaintiff, and ran in a northwesterly course and terminated on the North Channel. A map made from the MeNeff survey introduced by plaintiff will help to show the respective contentions.
Plaintiff contends that his line extends from X to X, while the defendant insists that plaintiff’s line extends only from A to B. The shore line west of A is the land in dispute. If the starting post on the Middle Channel is situate where plaintiff places it and the line is projected north 74 degrees west, the line would reach the Sny Borau channel, and plaintiff would have title to the entire north end of the island. On the other hand, if the starting post be 30 rods
north, of the place fixed- by plaintiff and runs thence north 74 degrees west, the line would terminate at the North Channel at the point marked A and plaintiff would own only about one-half of the north end of the island. Both claim the record title and both claim title by adverse possession. Plaintiff shows an unbroken record title through mesne conveyances from Cartwright. Defendants show an unbroken record title from the Dickinsons. So the question resolves itself into one as to where the line is between the Cartwright tract and the Dickinson tract, or, in other words, whether the plaintiff owns the entire north end' of the island or only about half of it.
It is unnecessary to examine the ancient titles except as they bear upon this question, as plaintiff concedes that Dickinson owned all of the island except the Cartwright tract, and defendants are in accord with the concession, but they disagree as to where the line is which separates them.
The McNeff survey made in 1817 describes the Cartwright tract as follows: .
“Commencing on the most northeasterly point of said island, and running thence south sixteen (16) degrees, west twelve (12) acres (that is, twelve times the length of a side of a square acre) be the same more or less, to a post standing on the bank of Eagles (Middle) Channel, and near center of a marsh; thence north seventy-four (74) degrees west until it strikes the waters on the opposite side of the island, being the course of each division line, and forming the line between James Cartwright and John Brown, all the lands, to the northeast of said line assigned to James Cartwright, seignor.”
Plaintiff’s deed from Samuel Curtis Roby in 1889—
“conveys all of a certain tract or parcel of land situated, lying and being upon the head of Stromness island, township of Clay, containing by estimation about 250 acres, more or less, and bounded as follows: On the north by North Channel, on south by the lands belonging to A. C. Dickinson, and on the west by Turtle Channel, it being the same land conveyed to said Samuel C. Roby by Fidelia B. Kimball, as recorded August 13, 1872, and recorded 42 page 67, and quitclaim deed of John K. Randolph and wife to said Samuel C. Roby, and recorded in Liber 43 page 267, March 1, 1873.”
Defendants received their conveyance from the Dickinsons. The deed—
“conveys the island situated at the head of Lake St. Clair, bounded as follows: On the north by the Thompson farm, the Middle Channel, the North Channel and Lake St. Clair, on the east 'by the Middle Channel, the Thompson farm and Lake St. Clair, on the south by the Middle Channel and Lake St. Clair,, and on the west by the North Channel and Lake St. Clair, or Anchor Bay or Baltimore Bay, being the whole island known as Dickinson or Stromness island, except that part known as the Thompson farm.”
The Thompson, farm was conveyed to Cartwright. Defendants claim that the starting post on the east or Middle Channel starts 30 rods north of the point plaintiff fixes it. If this be accepted and the line followed it will reach the North Channel at the point marked A on the map, and all the shore line west of the point belongs to defendants.
There is considerable proof bearing on this question because it is the crucial question. We have considered the evidence which bears on the respective contentions and we will speak of some of the more important ones which have influenced our conclusion.
In 1817 Dickinson island was owned by Cartwright, Brown, McDonald and Laughton. They were evidently at sea as to their partition lines. They employed a civil engineer by the name of McNeff to make a survey of the island and determine their respective portions. He did so, and the map appearing herein was made from it. After McNeff had prepared the survey all of the owners signed it and it was recorded in Wayne county, and no one appears to have taken issue with it until this controversy arose. McNeff found his starting point as follows:
“Commencing on the most northeasterly point of said island and running thence south sixteen (16) degrees west twelve (12) acres (that is twelve times the length of a side of a square acre) be the same more or less, to a post standing on the bank of Eagles (Middle) Channel and near center of a marsh.”
By erosion some changes have taken place in the island and the post has disappeared, but Mr. Crocker, a civil engineer and surveyor, has recently relocated it for plaintiff from the McMeff survey. We are much impressed with the accuracy of this survey. When four men are in doubt concerning the lines which separate their respective premises and cause a survey to be made and when made they all sign it and it is not thereafter questioned for a century, we think it should command the respect of their grantees. The lines as established by this McNeff survey have not been questioned for over a century and it seems inconceivable that these lines would not have been attacked during that time if they had been incorrect.
But defendants say that the waters on the opposite side of the island referred to was Turtle Channel, and they show there was in former days a channel or swale following the line A-B to the North Channel which made the Cartwright tract an island. Defendants say this channel was Turtle Channel, and was the waters referred to. Plaintiff says the waters on the opposite side of the island referred to is the Sny Borau, and that there was a swale starting at the Middle Channel on the east extending in a westerly direction which split into two divisions, one extending in about the course of the line A-B to the North Channel and the other extending in a northwesterly direction to the Sny Borau, which was formerly called Turtle Channel. So it will be seen that the contention of plaintiff is that this swale made the whole north end of the island an island, which was called the Cartwright island. Defendants’ contention that the swale extended to the North Channel would make the northeast portion of the island an island, but a smaller one. Thus it can readily be seen that this furnishes the basis for their respective contentions.
Judge Eldridge, who heard State v. Dickinson, in the trial court (129 Mich. 221), made a finding as to these channels or swales, as follows:
“Between the island and this Roby’s (Cartwright) Point a slough or swale extends from the Middle Channel, or near it, to the North Channel or to Sny Borau. This slough or swale, at a point some distance from the Middle Channel, is divided by a ridge, and one arm of the slough extends to the North Channel and the other to the Sny aforesaid.”
The deeds in the Dickinson chain of title convey the entire island except the .Cartwright tract at the northeast corner of the island. Counsel gives this language great weight. The language “in the northeast comer” is rather persuasive, but there is so much evidence that the Cartwright tract extended clear across the north end of the island that we hesitate to give this language the significance which it imports.
Asa Dickinson, who owned and occupied the premises more than a third of a century, in 1882, testified:
“It will be seen by sheets of description in the abstracts of title of the many conveyances- of lands on the North Channel or northeast part of the island, that my northerly line running from the Middle Channel north 74 degrees west to the opposite side of the Sny Borau or Lake St. Clair is recognized as the line dividing those several parcels from the southwesterly portion of the island. In every instance that line is known and respected.”
It is evident from this language that Asa Dickinson understood that the Cartwright tract extended clear across the north end of the island.
Again, the Cartwright tract was divided by him into six parcels and sold, and each parcel was bounded on the north by the North Channel. On the south they were each bounded by land of Peter Laughton which was afterwards deeded to Asa Dickinson. This is evidence that Cartwright understood that he owned the whole north end of the island. If he were mistaken about this it seems as though it would have been challenged by some of the parties in interest if it had not been correct.
Some of the deeds in evidence described the Cartwright line as extending to Turtle Channel. Defendants insist that the line from A to B was called “Turtle Channel.” We have examined the evidence on this question and also the ancient maps, and we are convinced that this contention is not well founded. The evidence convinces us that what is now called the “Sny Borau” was formerly called “Turtle Channel.”
We are persuaded that the relocation of the starting post by Crocker in the Middle Channel is approximately correct. If this be correct then the described line of “thence north 74 degrees west” would carry it to the Sny Borau on the west coast of the island in accordance with plaintiffs contention.
Defendants raise the question of jurisdiction of the court. In plaintiff’s amended bill he alleges he was in possession of the land in question. The trial court has found that plaintiff was in possession and that defendants were not in possession. But in any view of the matter, we think 3 Comp. Laws 1915, § 12302, would authorize a court of chancery to entertain jurisdiction of the proceeding.
The trial court found that the plaintiff had the record title to the premises in question, and also the right of title by adverse possession. He filed an extended and able opinion in which he analyzes and discusses the testimony at length. The testimony referred to, and many other bits of testimony not mentioned, lead us to concur in his views.
The decree of the trial court will be affirmed, with costs of this court to plaintiff.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
8,
87,
4,
-52,
11,
29,
29,
9,
4,
70,
8,
-14,
-21,
53,
26,
-55,
-45,
-24,
-14,
16,
-28,
-30,
3,
-15,
17,
-41,
29,
10,
-18,
24,
21,
-2,
-52,
14,
38,
-9,
22,
-16,
-21,
-5,
0,
-26,
19,
16,
43,
-42,
-44,
7,
-23,
30,
33,
13,
11,
-19,
-70,
13,
-40,
-3,
-15,
-22,
-37,
-5,
10,
-10,
7,
15,
-15,
-45,
18,
-63,
-36,
68,
-5,
8,
-9,
11,
24,
-25,
-9,
28,
-11,
59,
-16,
5,
-36,
-15,
-34,
-36,
30,
28,
-28,
-21,
-77,
3,
-2,
12,
43,
-26,
26,
10,
6,
63,
-30,
-5,
-38,
29,
-25,
-9,
-6,
-19,
32,
36,
36,
-43,
58,
-53,
4,
5,
12,
-6,
-45,
-15,
11,
-9,
-32,
-38,
-23,
-26,
-42,
31,
28,
-65,
-4,
0,
-7,
62,
-66,
-16,
-37,
-19,
56,
-21,
-8,
3,
-24,
26,
-26,
-24,
14,
-18,
-29,
31,
-6,
-11,
28,
-19,
10,
-51,
59,
-11,
1,
-23,
22,
-5,
-43,
-32,
77,
29,
-8,
13,
60,
-28,
2,
23,
-25,
18,
9,
1,
-10,
1,
22,
-4,
7,
-26,
-33,
-27,
-3,
5,
-89,
19,
21,
-16,
20,
-44,
-7,
27,
-3,
-1,
-46,
-15,
-1,
-24,
30,
-5,
-27,
-23,
87,
-21,
-44,
14,
-3,
-5,
-50,
-50,
0,
38,
65,
-23,
18,
-42,
43,
8,
25,
15,
-30,
-38,
6,
20,
71,
21,
-10,
-21,
17,
0,
-76,
-2,
-4,
19,
-6,
-14,
-2,
4,
-37,
-58,
42,
18,
5,
13,
-16,
33,
-21,
-31,
-9,
7,
26,
-32,
24,
-34,
-36,
-32,
-15,
8,
-19,
-24,
-25,
40,
0,
-14,
-29,
32,
37,
23,
-6,
-6,
-58,
-55,
-29,
5,
-21,
11,
53,
34,
47,
38,
-23,
1,
-33,
10,
14,
10,
9,
55,
-34,
-16,
-11,
23,
29,
-34,
49,
33,
0,
0,
-16,
1,
43,
3,
37,
3,
15,
18,
23,
37,
-21,
-32,
-7,
19,
17,
24,
9,
-34,
-5,
0,
18,
2,
1,
75,
41,
-18,
-29,
5,
-3,
20,
11,
1,
15,
23,
6,
-36,
4,
26,
46,
-25,
12,
6,
11,
26,
-23,
-27,
5,
-11,
-6,
42,
-8,
19,
-4,
25,
-30,
-8,
5,
37,
60,
-4,
31,
-45,
43,
9,
-32,
-21,
5,
26,
-24,
0,
55,
-10,
9,
-22,
29,
37,
-82,
55,
43,
-5,
-11,
6,
49,
35,
-41,
-36,
-39,
-31,
-17,
-32,
-1,
25,
0,
-25,
20,
-7,
-8,
-25,
34,
-7,
14,
27,
-35,
35,
15,
-20,
21,
2,
13,
-18,
8,
8,
-24,
23,
0,
1,
34,
-11,
51,
30,
-23,
-24,
22,
-48,
24,
-5,
63,
18,
-48,
42,
18,
33,
24,
-21,
-41,
-10,
-2,
-20,
-27,
56,
38,
-38,
-26,
-36,
-19,
2,
-12,
-56,
-37,
40,
-17,
-29,
-41,
43,
46,
-60,
35,
-40,
-28,
10,
13,
16,
-26,
-65,
-50,
-10,
23,
22,
-21,
53,
38,
4,
-20,
-16,
46,
21,
-55,
-16,
30,
-29,
-22,
-19,
-4,
-47,
42,
44,
12,
-15,
3,
-19,
5,
-10,
36,
-36,
-53,
19,
24,
20,
58,
4,
37,
11,
11,
1,
-58,
-16,
52,
52,
48,
-51,
29,
0,
-24,
40,
32,
-35,
10,
-3,
19,
-25,
15,
-21,
26,
-18,
-4,
-46,
2,
13,
-16,
-15,
-19,
-21,
-18,
-17,
-1,
27,
-29,
-5,
-34,
36,
30,
-9,
-28,
62,
43,
23,
-9,
-44,
-42,
35,
41,
30,
-37,
22,
-12,
-29,
17,
-31,
-14,
-19,
-19,
-11,
20,
-12,
41,
-3,
-10,
-35,
-9,
17,
62,
-4,
-18,
42,
-58,
-4,
30,
38,
-45,
-66,
-1,
-75,
-6,
19,
40,
9,
18,
7,
-36,
-30,
-10,
-15,
5,
-32,
8,
70,
-21,
-11,
17,
-27,
-21,
14,
24,
-55,
-5,
9,
9,
59,
3,
12,
-19,
45,
25,
36,
22,
-28,
20,
-27,
57,
-16,
9,
-38,
-39,
3,
-14,
-7,
-27,
25,
0,
-62,
-1,
26,
1,
-7,
-34,
47,
-14,
31,
11,
-29,
-41,
13,
-11,
7,
16,
9,
-33,
-35,
-17,
75,
34,
67,
-18,
-4,
-46,
-10,
5,
57,
12,
-23,
7,
15,
1,
-25,
-15,
-21,
27,
20,
0,
-43,
-42,
24,
6,
-22,
-2,
54,
-10,
49,
25,
-9,
29,
14,
26,
22,
-51,
13,
-16,
58,
10,
-28,
43,
42,
26,
-9,
-14,
-2,
8,
5,
18,
48,
18,
-14,
21,
11,
45,
7,
18,
-17,
7,
24,
63,
1,
23,
49,
-19,
-14,
-12,
-3,
9,
-20,
-3,
-25,
-44,
-15,
13,
-2,
2,
24,
4,
45,
0,
-13,
-25,
11,
47,
24,
-23,
-58,
-20,
-69,
-20,
-6,
3,
6,
18,
-25,
-19,
13,
-23,
-27,
-22,
39,
8,
-59,
-33,
17,
-22,
-18,
55,
8,
-5,
-48,
-36,
-59,
10,
-49,
12,
3,
-33,
-3,
-22,
-74,
-3,
7,
53,
42,
3,
23,
-30,
-14,
-21,
-56,
-2,
18,
-17,
-56,
-5,
-2,
-13,
56,
-40,
-15,
-30,
-9,
39,
-23,
-1,
19,
-41,
18,
-21,
44,
20,
10,
-23,
9,
-32,
26,
-10,
-21,
15,
-10,
-31,
18,
6,
33,
20,
-24,
-33,
48,
2,
-18,
17,
12,
56,
-18,
-28,
-1,
53,
-2,
11,
5,
21,
-71,
-1,
-16,
-16,
-31,
-22,
-23,
-26,
-47,
-5,
-10,
-48,
-23,
-21,
-14,
-58,
47,
-14,
-4,
-15,
-5,
-16,
-3,
14,
20,
40,
-34,
12,
8,
20,
6,
34,
-23,
-3,
2,
21,
-29,
-8,
28,
33,
45,
-21,
-54,
-24,
10,
-32,
12,
-30,
-14,
-70,
-49,
25,
-17,
-13,
32,
31,
-40,
45,
-24,
-46,
27,
-6,
-4,
-19,
42,
41,
17,
14,
17,
-48,
-31,
-33,
-43,
21,
22,
-26,
-14,
-15,
-25,
-34,
4,
-45,
19,
9,
33,
51,
51,
-5,
-4,
-58,
51,
-6,
0,
5,
59,
-59,
-27,
-25,
-16,
21,
29,
15,
-40,
-14,
19,
8,
-45,
-33,
13,
-38,
52,
31,
12,
3,
38,
-15,
22,
21,
49,
-7,
6,
-37,
-45,
-26,
-37,
-24,
45,
19,
1,
-10,
-37,
-2,
-11,
-24,
12,
-47,
-30,
3,
-8,
40,
0,
2,
44,
-2,
-10,
4,
-31,
-17,
11,
32,
35,
-8,
10,
-60,
4,
0,
11,
45,
6,
26,
-20,
-48,
-17,
-76,
-22,
13,
-3,
42,
3,
29,
5,
68,
27,
40,
-33,
-40,
44,
82,
57,
35,
51,
-25,
0,
15,
30,
28,
-3,
-18,
24
] |
Moore, J.
This is a proceeding in chancery, in which complainants obtained a decree setting aside, upon the payment of the taxes due, a tax deed upon certain lands described in the bill of complaint. The defendants appeal from the decree. A good many reasons are alleged in the bill of complaint why the deed should be set aside. It will not be necessary to consider them all. The record shows that the sale was not conducted by the county treasurer or a deputy county treasurer, or that either of them was present, but it was conducted by the defendant Kiely, who was acting as the clerk of the county treasurer. The sale occurred in May, 1893. The record shows that in March, 1893, the defendant Mr. Collins, who was the brother-in-law of Mr. Kiely, left money with him, and requested him to bid in these lands for Mr. Collins, who was then living on a farm belonging to Mr. Kiely. This was done by Mr. Kiely, Mr. Collins not attending the sale, or making any bid except as it was made for him by Mr. Kiely. The lands were afterwards conveyed by Mr. Collins to Mr. Kiely.
Section 521, 1 How. Stat., provides that the county treasurer may appoint a deputy, who, in the absence of the county treasurer, may perform his duties. Section 1 of article 18 of the Constitution provides that certain officers, among whom are county' treasurers, shall take the oath of office before entering upon their duties. Section 62, Act No. 195, Pub. Acts 1889, and section 62, Act No. 200, Pub. Acts 1891, provide that the county treasurer shall make the sales of lands under tax decree, and that “sale shall be made to the person offering to pay the amount -charged against such parcel in the decree, and accept a conveyance of the smallest undivided fee simple interest therein,” and that “no greater interest in any parcel shall be sold than is sufficient to pay the amount of the tax on which the same is sold,” etc. They also provide that the county treasurer, in his discretion, may require immediate payment of any person to whom land is sold. The making of these sales is made the official duty of the county treasurer. Official acts must be performed by an officer. We do not intimate that a clerk may not be employed to assist in conducting these sales; but the authority to make them is given to the county treasurer, and they should be conducted by him, or by his legally appointed deputy, or under his direction.
It has already been seen that it is the duty of the officer conducting the sale to sell as small a portion of the land as possible, and yet realize the amount of the tax assessed against it. This duty cannot be harmonized with the duty an agent owes to his principal who is a bidder at tax sales, whose interest is to procure the entire parcel for the amount of the tax. In Leaton v. Murphy, 78 Mich. 77, it was held that sales for delinquent taxes are governed by the rules relating to judicial sales. In Clute v. Barron, 2 Mich. 192, it was held that a county treasurer could not himself become a purchaser at tax sales conducted by him. In Dwight v. Blackmar, Id. 330 (57 Am. Dec. 130), it was held that an administrator could not become a purchaser of the estate or effects of his intestate. The provision of the statute in requiring the tax to be made from the sale of as small a portion of the parcel of land as possible is in the interest of the taxpayer. It is the duty of the treasurer to take care of that interest. He ought not to act for a purchaser, because the two interests are conflicting. See 27 Am. & Eng. Enc. Law, 200. The conclusion that Mr. Eiely and Mr. Collins were acting in concert is not an unreasonable one.
The decree made by the circuit judge is affirmed, with costs.
The other Justices concurred. | [
1,
15,
38,
28,
5,
44,
42,
4,
-2,
43,
38,
-9,
2,
65,
-15,
-20,
-12,
-23,
-4,
-18,
-26,
-9,
-12,
8,
19,
-5,
-18,
-9,
-34,
-33,
-24,
0,
-65,
10,
63,
-1,
9,
-3,
29,
16,
-30,
46,
-15,
12,
-2,
-10,
-22,
-39,
0,
6,
23,
-41,
41,
-16,
7,
27,
17,
-38,
9,
-36,
-7,
-19,
-29,
19,
-3,
-14,
-37,
-40,
14,
-32,
-26,
-3,
20,
-6,
60,
8,
-29,
-15,
-10,
43,
19,
-18,
14,
-44,
-43,
36,
-10,
-16,
18,
-6,
-24,
25,
6,
-23,
18,
42,
47,
32,
37,
18,
-2,
-20,
-11,
27,
7,
-1,
-24,
-55,
-30,
-24,
0,
-38,
29,
-41,
-27,
-26,
-18,
-66,
-10,
-14,
27,
6,
28,
-30,
9,
19,
-4,
-31,
-67,
-1,
41,
-31,
-64,
-15,
-10,
-8,
3,
-1,
-19,
-36,
18,
13,
-21,
-56,
8,
-8,
-3,
9,
-39,
23,
-46,
0,
7,
-6,
-44,
-13,
-12,
-41,
39,
-72,
37,
30,
-2,
-60,
-21,
20,
-23,
-5,
-46,
50,
47,
21,
-60,
32,
-19,
-56,
54,
9,
-30,
-7,
20,
-19,
6,
10,
19,
10,
-9,
28,
-1,
4,
23,
5,
2,
-18,
43,
-30,
19,
-22,
5,
-9,
-24,
-29,
-31,
21,
16,
-16,
7,
16,
-36,
38,
-44,
0,
-39,
2,
-45,
29,
11,
1,
6,
4,
48,
72,
15,
1,
-46,
-20,
37,
-1,
-13,
45,
-11,
21,
13,
1,
-19,
-57,
29,
-4,
-53,
44,
-67,
-2,
-7,
-18,
12,
-3,
42,
-12,
0,
11,
-6,
6,
-62,
52,
13,
11,
-11,
-9,
-47,
-16,
-16,
55,
0,
28,
-24,
-83,
11,
-14,
17,
15,
19,
6,
58,
29,
14,
16,
16,
-5,
-14,
0,
14,
-38,
33,
50,
-18,
31,
-17,
30,
7,
0,
-4,
-33,
15,
36,
25,
74,
25,
29,
64,
-39,
-26,
-36,
35,
-18,
17,
-16,
6,
-51,
-6,
31,
33,
-15,
-9,
9,
11,
0,
-42,
-37,
14,
-16,
55,
-29,
-1,
24,
-4,
45,
71,
-40,
1,
49,
34,
-44,
2,
-80,
-14,
17,
35,
-25,
-33,
6,
11,
17,
8,
-13,
58,
-5,
-18,
-3,
-5,
10,
-18,
-4,
-36,
77,
-25,
-45,
16,
-7,
-11,
24,
28,
8,
9,
-58,
10,
11,
-54,
-24,
57,
7,
31,
7,
-27,
-8,
-24,
12,
-20,
17,
-6,
-4,
2,
-5,
3,
29,
29,
10,
-19,
-17,
0,
-32,
46,
49,
13,
3,
-10,
-34,
0,
-23,
-58,
21,
-35,
23,
-17,
24,
-59,
19,
-28,
14,
-4,
16,
23,
-58,
20,
-5,
26,
-9,
12,
0,
54,
19,
21,
11,
-20,
-49,
8,
-43,
0,
28,
38,
9,
-31,
-4,
35,
12,
48,
22,
-34,
33,
-20,
7,
12,
11,
32,
17,
-8,
-14,
-35,
-4,
50,
23,
-1,
-2,
-17,
-13,
-8,
-7,
63,
-29,
-25,
-21,
38,
10,
-13,
-46,
18,
12,
-15,
-20,
19,
5,
-32,
31,
-8,
-30,
-41,
-7,
-1,
-41,
42,
-1,
0,
-50,
-26,
-7,
-20,
-40,
-26,
44,
-8,
-53,
40,
-39,
6,
-2,
30,
-3,
25,
-43,
31,
48,
9,
61,
11,
9,
-43,
-15,
10,
24,
29,
47,
-17,
-15,
41,
13,
2,
92,
9,
6,
32,
6,
5,
-71,
-91,
-41,
33,
0,
11,
67,
3,
-21,
-20,
3,
22,
5,
-25,
41,
-28,
14,
0,
-34,
-53,
47,
39,
53,
12,
38,
40,
-33,
24,
-29,
8,
-12,
12,
8,
-50,
27,
7,
-42,
26,
-11,
0,
-56,
-2,
-63,
53,
-42,
17,
-30,
-54,
-1,
-1,
-69,
42,
-11,
37,
-19,
-42,
-30,
39,
19,
-22,
-66,
33,
-32,
107,
-4,
0,
5,
-7,
-12,
8,
35,
-45,
32,
-31,
-21,
-7,
17,
13,
17,
-27,
-6,
-34,
-15,
0,
-12,
3,
36,
-4,
19,
-16,
5,
52,
17,
24,
40,
-15,
-46,
10,
-16,
-15,
5,
24,
-45,
-4,
3,
25,
13,
-22,
12,
17,
-24,
-32,
6,
-38,
41,
-28,
7,
-9,
-7,
-6,
-28,
-97,
-36,
20,
8,
-26,
-14,
20,
-16,
14,
-12,
3,
42,
16,
11,
8,
-33,
59,
-11,
68,
-68,
34,
30,
3,
4,
33,
13,
-11,
-1,
17,
-36,
-5,
-45,
-25,
-18,
19,
25,
-10,
15,
29,
21,
4,
42,
-14,
-53,
7,
-3,
-25,
12,
4,
-29,
17,
67,
-32,
-6,
-28,
-8,
64,
33,
35,
-7,
4,
69,
5,
-17,
16,
-13,
-39,
-39,
-17,
10,
12,
-17,
25,
-15,
78,
-3,
-16,
0,
-2,
-22,
24,
-5,
23,
7,
23,
0,
1,
-13,
14,
68,
-43,
22,
19,
26,
20,
14,
13,
-23,
-10,
-40,
-60,
0,
25,
17,
8,
11,
-14,
-20,
25,
5,
33,
26,
-6,
-33,
-21,
5,
-15,
-11,
-22,
42,
28,
33,
24,
-40,
7,
-45,
-4,
10,
5,
15,
-17,
-18,
26,
10,
-14,
-22,
60,
-49,
11,
-43,
-30,
-18,
0,
-55,
12,
-26,
-14,
14,
28,
-16,
-21,
19,
-38,
-23,
-28,
-11,
-19,
-36,
-7,
16,
-48,
52,
21,
7,
-16,
25,
-29,
35,
8,
27,
-3,
-82,
-51,
-36,
-22,
54,
-21,
-14,
-8,
0,
0,
-15,
-24,
8,
18,
48,
-43,
-9,
5,
-34,
-40,
-8,
22,
-64,
0,
-13,
1,
2,
-33,
-22,
4,
5,
17,
-6,
-69,
52,
-19,
36,
-25,
5,
-32,
12,
-56,
-38,
34,
-37,
0,
0,
25,
3,
33,
-41,
-16,
15,
-6,
34,
45,
-4,
-12,
30,
-40,
10,
5,
24,
14,
-18,
-5,
-9,
20,
6,
-57,
14,
-16,
20,
55,
-31,
-13,
28,
-37,
-14,
-48,
-2,
20,
-15,
34,
-29,
1,
-8,
20,
12,
-8,
-4,
-19,
-31,
-11,
31,
20,
19,
26,
-20,
-59,
-63,
-40,
-34,
-29,
-44,
19,
11,
64,
-8,
-44,
-16,
7,
-37,
40,
-19,
32,
25,
4,
37,
19,
2,
2,
-11,
7,
-11,
2,
-6,
48,
14,
-21,
1,
-26,
27,
15,
24,
33,
13,
-14,
0,
38,
17,
-11,
25,
-49,
-55,
-14,
28,
-38,
16,
25,
-18,
29,
18,
28,
21,
-3,
4,
46,
-11,
26,
13,
15,
58,
17,
2,
-13,
40,
3,
-36,
-23,
22,
-33,
46,
27,
-11,
-27,
-26,
10,
29,
34,
0,
-43,
-11,
-57,
-16,
-51,
-57,
11,
-22,
6,
-27,
20,
-38,
47,
74,
16,
-1,
-58,
-7,
42,
28,
-61,
6,
44,
24,
-18,
-31,
20,
6,
-41,
51
] |
Montgomery, J.
The respondent was convicted of statutory rape. The complaining witness was at the time under 16 years of age. It is not claimed that the act of intercourse was against, the will of the complaining witness, but the offense is under the statute ample without such proof, as she is in the law incompetent to give consent. People v. Ten Elshof, 92 Mich. 167.
When the complaining witness was called to the stand, she was interrogated by the respondent’s counsel as to her competency. From the examination it appears that she had gone through a form of marriage with respondent before the judge of probate of Emmet county. Under certain conditions such a marriage is authorized by the terms of Act No. 180, Pub. Acts 1897. The prerequisite conditions were not affirmatively shown by the respondent or testified to by the witness. But, if the fact of marriage rendered her incompetent to testify to the facts in this, case, the presumption from proof of a ceremony by an officer authorized to perform it is in favor of the regularity and legality of his act. 2 Whart. Ev. § 1297; 1 Bish. Mar., Div. & Sep. § 946.
The evidence shows that the complaining witness is an orphan, and that her stepfather did not give his consent to the marriage. The circuit judge was of the opinion that this fact overcame the presumption of regularity. This view cannot be sustained. The stepfather is not a natural guardian of the child. Schouler, Dom. Rel. § 298.
The question is therefore presented as to whether the wife is a competent witness to the act charged as occurring before marriage. It is to be noted that Act No. 180, Pub. Acts 1897, makes no provision on this subject, and that, therefore, the general statute, 3 How. Stat. § 7546, must govern. That section declares the general incompetency of the wife,.and contains an exception of cases where “the cause of action grows out of a personal wrong or injury done by one to the other.” This provision is declaratory of the common law, and has its origin in the recognized necessity of protection to the injured spouse. Whart. Cr. Ev. § 393; Lord Audley’s Case, 3 How. St. Tr. 402. The exception has also been applied in cases of abduction followed by marriage. Wakefield’s Case, 2 Lewin, Crown Cas. 279; Reg. v. Yore, 1 Jebb & S. 563. But we know of no case which extends the exception to the general rule further. The marriage in this case was not induced by the wrong of which the witness was permitted to give testimony, and we think the case does not fall within the spirit of the exception to the general rule. The wife was not a competent witness.
The conviction will be set aside, and a new trial ordered.
The other Justices concurred. | [
20,
-38,
-24,
39,
0,
12,
3,
-2,
10,
-27,
8,
-53,
48,
7,
1,
-5,
-21,
-27,
22,
-99,
2,
0,
-9,
54,
-25,
-8,
33,
32,
-9,
-29,
44,
45,
-52,
-15,
27,
-21,
41,
10,
29,
52,
16,
31,
12,
10,
-64,
17,
21,
9,
-33,
22,
6,
-41,
16,
37,
23,
-30,
17,
-50,
42,
-14,
-6,
11,
-25,
-17,
-77,
-55,
-8,
42,
-26,
-17,
-4,
-11,
-66,
-15,
-19,
-10,
-8,
13,
72,
68,
41,
-29,
38,
0,
37,
-24,
-7,
28,
-38,
26,
-12,
25,
-62,
-31,
-32,
-16,
-11,
-13,
55,
-1,
-16,
-15,
15,
13,
-9,
54,
-50,
-7,
0,
-7,
41,
-65,
32,
-62,
-40,
-14,
-1,
-21,
-12,
-34,
60,
41,
13,
0,
15,
-30,
19,
-54,
3,
-32,
-27,
29,
14,
-22,
-7,
-24,
9,
-34,
15,
-16,
11,
-23,
8,
21,
30,
-25,
-34,
-32,
25,
5,
-25,
22,
-6,
-19,
32,
-36,
-19,
-46,
0,
-45,
48,
-26,
-111,
7,
-43,
-19,
40,
4,
30,
15,
34,
46,
26,
29,
0,
-60,
-16,
-10,
15,
28,
-2,
39,
-15,
-20,
19,
46,
2,
-24,
-18,
-4,
-61,
20,
28,
14,
53,
71,
-32,
26,
4,
-20,
-26,
8,
6,
49,
-6,
1,
-7,
-51,
-31,
-17,
19,
59,
-5,
-14,
-35,
-38,
18,
20,
-32,
33,
1,
0,
12,
-32,
-41,
-51,
-10,
20,
-78,
-5,
32,
2,
-23,
-13,
-40,
-19,
35,
-30,
22,
1,
-27,
-17,
15,
7,
-27,
-40,
6,
-5,
20,
0,
34,
33,
-10,
22,
-22,
23,
-16,
58,
20,
-28,
-37,
2,
-12,
26,
-24,
-21,
-1,
22,
-14,
-41,
9,
10,
55,
33,
18,
-1,
-28,
43,
-24,
-3,
-29,
56,
6,
37,
-62,
-25,
-47,
54,
64,
19,
36,
-34,
-18,
-17,
21,
43,
-31,
36,
-25,
0,
77,
-26,
54,
5,
-20,
-25,
22,
33,
-12,
-13,
-42,
5,
1,
-5,
33,
28,
-11,
-24,
-15,
-4,
-4,
-33,
-39,
-18,
-23,
11,
-11,
-44,
-51,
7,
-27,
9,
10,
5,
47,
6,
-28,
-12,
-61,
20,
52,
-41,
21,
21,
-13,
30,
16,
-3,
17,
14,
-16,
-27,
-14,
-22,
-35,
9,
7,
-102,
-2,
-44,
-5,
-34,
-25,
-13,
23,
30,
11,
-45,
70,
41,
17,
-28,
8,
11,
5,
-54,
-1,
35,
-29,
41,
-36,
22,
9,
18,
-7,
38,
-30,
-12,
-34,
28,
-4,
22,
17,
-21,
-19,
-9,
-50,
18,
35,
-13,
-13,
9,
-2,
26,
-36,
-12,
-31,
13,
-15,
12,
6,
47,
27,
18,
27,
-42,
39,
-1,
22,
25,
-26,
0,
31,
12,
-24,
-17,
-34,
-47,
51,
-58,
11,
-3,
0,
32,
50,
-43,
-9,
34,
-26,
7,
-23,
5,
-23,
28,
16,
46,
-8,
2,
12,
-10,
0,
6,
8,
-11,
55,
26,
16,
77,
-18,
1,
15,
14,
14,
-16,
30,
-4,
-30,
-17,
-19,
-37,
38,
-13,
-33,
29,
-13,
50,
6,
84,
5,
-16,
14,
17,
27,
6,
-9,
-21,
14,
2,
40,
-55,
-7,
-41,
-62,
68,
-24,
-22,
1,
-9,
-26,
-8,
-3,
49,
-8,
5,
20,
-39,
20,
73,
-27,
-12,
-34,
32,
26,
0,
-9,
-44,
12,
-17,
2,
-6,
38,
1,
0,
-10,
-26,
28,
-20,
-8,
-28,
-35,
62,
62,
-20,
-8,
49,
41,
-8,
-32,
31,
-20,
-41,
60,
6,
-30,
18,
18,
18,
-12,
-21,
12,
17,
-17,
23,
-13,
-7,
-12,
35,
-1,
-36,
-29,
26,
22,
23,
0,
7,
-19,
-26,
-53,
0,
8,
-10,
-10,
-67,
12,
8,
12,
23,
8,
8,
-27,
43,
15,
-5,
-12,
-22,
-20,
3,
-8,
13,
-29,
-47,
42,
3,
-24,
-43,
-33,
0,
-30,
-18,
51,
34,
-16,
9,
19,
5,
8,
9,
61,
7,
-27,
7,
-21,
18,
-28,
-37,
-11,
-13,
11,
-48,
40,
-47,
55,
-18,
-16,
-17,
-23,
-10,
-30,
16,
-2,
-30,
4,
-29,
-19,
8,
36,
1,
-8,
35,
1,
28,
10,
-40,
-2,
55,
42,
21,
41,
10,
-75,
-33,
23,
-14,
-51,
22,
-9,
-1,
-22,
1,
9,
22,
-43,
28,
44,
75,
36,
-6,
40,
2,
-31,
-46,
-23,
0,
53,
26,
16,
38,
18,
4,
-24,
-12,
-59,
6,
0,
34,
-41,
-36,
-13,
10,
-8,
-2,
-35,
65,
13,
-16,
-23,
-5,
12,
-59,
53,
-24,
-51,
-28,
-18,
6,
4,
14,
-38,
-33,
-21,
-15,
76,
-39,
-13,
0,
-20,
-8,
-25,
-13,
35,
-40,
30,
19,
22,
1,
34,
49,
7,
38,
-35,
27,
53,
-30,
29,
47,
-2,
-1,
-13,
17,
0,
6,
-17,
-28,
-37,
50,
0,
10,
-45,
-18,
-11,
-13,
27,
-24,
0,
-13,
5,
0,
-32,
-4,
-5,
-2,
2,
-21,
-73,
-14,
2,
-51,
12,
38,
34,
2,
-7,
33,
-24,
-31,
34,
-3,
-25,
17,
-16,
4,
8,
-59,
25,
-12,
-85,
37,
-21,
31,
7,
51,
-2,
2,
40,
-29,
6,
-21,
-59,
8,
-21,
-29,
5,
-40,
-46,
-38,
2,
-46,
19,
-7,
20,
19,
57,
-61,
-12,
-74,
14,
59,
-8,
76,
-23,
46,
-2,
-3,
-21,
-11,
39,
53,
-11,
-35,
-30,
6,
-5,
52,
4,
31,
3,
26,
-10,
-21,
7,
24,
9,
15,
-26,
55,
-12,
42,
-9,
33,
-23,
40,
35,
6,
-10,
-7,
-36,
-40,
43,
-64,
13,
-46,
0,
-8,
-45,
-31,
-3,
21,
-19,
58,
-31,
20,
-22,
-79,
2,
1,
-27,
27,
-16,
32,
60,
14,
-43,
7,
5,
6,
-9,
17,
-11,
-50,
-15,
21,
22,
55,
25,
-83,
12,
37,
4,
-43,
-38,
-32,
27,
-50,
-10,
12,
1,
17,
-3,
-23,
0,
24,
1,
-30,
23,
33,
50,
-19,
-62,
13,
-33,
31,
-48,
3,
17,
-18,
-32,
13,
33,
-36,
-14,
12,
-27,
-40,
-32,
35,
-15,
12,
39,
-7,
46,
43,
20,
-76,
-19,
-22,
46,
-41,
37,
7,
-8,
2,
20,
45,
0,
23,
60,
3,
25,
-62,
72,
0,
56,
10,
17,
10,
-7,
46,
33,
-5,
64,
8,
-33,
-28,
0,
-8,
20,
-11,
31,
-11,
8,
-43,
-52,
22,
-5,
-29,
-36,
8,
46,
-44,
-4,
5,
14,
-38,
17,
-8,
10,
9,
-69,
9,
20,
-15,
-4,
-3,
23,
15,
-35,
4,
33,
-10,
-54,
11,
1,
61,
31,
14,
24,
-29,
-19,
42,
-19,
9,
-1,
46,
43
] |
Montgomery, J.
These two cases present substantially the same questions. It is sought in each to review by certiorari the action of the circuit court in refusing to set aside a sale of real estate on execution. In each case a large number of technical objections are taken to the proceedings, relating to the time and order of filing the return of the sheriff, and the evidence of posting notices, etc. It is enough to say that when the cases were before the court there was evidence that each step required to be taken by the sheriff was taken within the time required by statute, and that all the proceedings which are designed as safeguards to the rights of execution debtors were taken, unless it shall be held that the sheriff was in error in selling the land as one parcel, or that the plaintiff in certiorari has a right to complain that land occupied as a homestead was included in the sale.
Section 6116, 2 How. Stat., provides that when any real estate offered for sale by virtue of any execution shall consist of several known lots, tracts, or parcels of land, such lots, tracts, or parcels shall be separately exposed for sale, and no more of such tracts or parcels shall be exposed than shall appear necessary to satisfy the execution, with the costs and expenses of such sale.' In the case of Holton v. Moody the land sold consisted of a quarter section of land. In the Wolf Case the land sold consisted of the same quarter section, and another 20 acres of land adjoining it on the north, and another 60 acres separated from the quarter section by an intervening space of 1 chain and 39i links. This court never has determined whether, under this section of the statute, separate 40-acre tracts shall be sold separately, or whether contiguous tracts shall be treated as one parcel; at least, this has not been determined by construction of this section. In Geney v. Maynard, 44 Mich. 578, it was held that a party might so deal with parts of separate tracts as to constitute parts of two platted lots one parcel. See, also, Gleason v. Hill, 65 Cal. 17. In Larzelere v. Starkweather, 38 Mich. 104, it was held that the word “distinct,” as used in the statute relating to sales on mortgage foreclosure, means separate or different; not the same. The mortgage statute (2 How. Stat. § 8503) uses the term “distinct farms, tracts, or lots not occupied as one parcel.” This statute refers to “several known lots, tracts, or parcels.” We think there is a distinction between these two statutes which leads to the conclusion that section 6116 contemplates a sale of land by lots or government additions when a sale is made on execution. The failure to follow the statute is an irregularity which will not be fatal to a sale in collateral proceedings. Hoffman v. Buschman, 95 Mich. 538. But the execution debtor may, by a motion in the same case, cause the sale to be set aside. Cavenaugh v. Jakeway, Walk. Ch. 344, and cases cited in note.
There is a feature of this proceeding which we cannot permit to pass unnoticed. The appellant has appeared before this court in the proceedings out of which these judgments arise many times. The amount involved is trifling, and it is perfectly manifest that this appeal to the court is not made because appellant’s rights are jeopardized, as it would be much cheaper to redeem from the sales than to incur the expense of this court. For this reason, while we feel constrained to set the sales aside, the order will be made without costs in either court.
The other Justices concurred. | [
27,
58,
27,
-3,
-29,
17,
-10,
25,
-15,
71,
16,
54,
4,
40,
50,
8,
-14,
0,
-38,
26,
-24,
-15,
-42,
2,
6,
-39,
28,
-17,
39,
39,
7,
-19,
-45,
18,
-12,
22,
41,
24,
0,
-8,
-1,
3,
-3,
-50,
-27,
-4,
2,
3,
9,
-19,
4,
-27,
27,
-6,
0,
3,
-13,
4,
15,
-5,
-22,
-29,
-40,
17,
-27,
39,
-14,
-10,
21,
-69,
-1,
26,
-34,
20,
82,
-8,
21,
-16,
-9,
-10,
12,
-23,
30,
-24,
-6,
-55,
-7,
-24,
31,
23,
-19,
-6,
-26,
-23,
-5,
34,
80,
-13,
2,
-19,
25,
31,
-2,
45,
-41,
-4,
-56,
-45,
-14,
3,
-18,
-55,
-5,
-14,
-48,
-30,
-13,
0,
23,
0,
-4,
2,
20,
11,
3,
6,
-48,
14,
-21,
-26,
13,
43,
-36,
12,
8,
-13,
15,
-12,
-17,
-12,
7,
7,
9,
-43,
21,
-22,
41,
-19,
-2,
0,
-19,
73,
-20,
4,
-33,
-38,
43,
-33,
-43,
-27,
62,
-11,
-59,
-14,
-31,
5,
-31,
43,
-17,
28,
41,
37,
-29,
11,
5,
-53,
2,
7,
9,
7,
-18,
-33,
-13,
-4,
13,
-27,
14,
17,
5,
-24,
14,
8,
4,
-3,
12,
44,
4,
2,
-41,
-7,
-33,
-20,
-16,
16,
-2,
-8,
36,
-24,
21,
12,
-96,
12,
-40,
-18,
-13,
-34,
12,
-23,
25,
2,
18,
36,
36,
-15,
11,
-26,
36,
26,
62,
38,
13,
27,
53,
9,
-26,
-51,
36,
19,
10,
23,
5,
13,
-18,
-19,
-3,
31,
-9,
-12,
14,
-32,
-34,
-37,
-9,
13,
12,
-5,
-25,
6,
-34,
-6,
38,
60,
-29,
-15,
-4,
9,
8,
-22,
-35,
42,
-36,
37,
9,
14,
-18,
16,
-10,
-25,
-8,
-2,
32,
22,
17,
21,
-45,
50,
15,
74,
-34,
-4,
15,
-43,
-55,
-13,
-18,
40,
11,
-39,
75,
-25,
21,
-61,
24,
-10,
-3,
-24,
-5,
-43,
-29,
-12,
0,
-13,
5,
32,
16,
32,
-31,
-4,
45,
-20,
60,
24,
41,
-10,
65,
29,
23,
-73,
-42,
41,
-6,
-15,
0,
13,
12,
26,
10,
-63,
-32,
27,
-15,
1,
4,
2,
87,
-18,
-16,
-13,
4,
27,
7,
28,
-60,
23,
26,
-27,
-17,
17,
-18,
22,
32,
13,
-7,
7,
-25,
-21,
-11,
-50,
16,
7,
-1,
31,
-1,
3,
-33,
8,
-20,
13,
-23,
0,
-63,
-36,
27,
69,
48,
35,
-41,
-22,
32,
27,
-8,
-44,
-6,
36,
4,
-20,
38,
-1,
-27,
-50,
-21,
33,
-29,
-6,
-56,
85,
-18,
-6,
-21,
35,
16,
-30,
11,
-8,
-27,
22,
19,
-22,
29,
-9,
1,
-45,
19,
2,
-10,
-54,
-8,
11,
-53,
56,
-66,
35,
17,
-45,
19,
61,
-31,
1,
-46,
26,
-43,
5,
-51,
11,
-20,
24,
3,
-12,
62,
23,
-32,
32,
-60,
-39,
-56,
14,
17,
-30,
11,
-6,
49,
-25,
20,
-38,
2,
-48,
-26,
-31,
-7,
-63,
3,
4,
30,
26,
-7,
19,
7,
32,
-24,
-39,
-24,
-47,
6,
-17,
-44,
-41,
-88,
-32,
15,
-33,
5,
20,
55,
-10,
-30,
-23,
46,
-25,
23,
55,
29,
21,
8,
3,
5,
-4,
8,
-24,
43,
31,
30,
14,
40,
24,
-26,
43,
14,
-1,
6,
1,
15,
-81,
-40,
-36,
0,
-2,
-7,
-10,
15,
-12,
3,
35,
31,
12,
-22,
44,
-30,
13,
-3,
-12,
-47,
48,
23,
53,
8,
48,
45,
-29,
-3,
-34,
-32,
-31,
-13,
8,
-17,
-1,
-33,
-46,
-20,
-27,
-38,
-5,
44,
-19,
50,
-23,
1,
-17,
-35,
22,
-39,
-8,
16,
-21,
48,
-59,
-14,
-33,
-6,
4,
-27,
-16,
-25,
-50,
37,
5,
24,
-18,
-5,
4,
42,
-14,
4,
-26,
6,
18,
-51,
30,
20,
30,
-6,
6,
-34,
-21,
-18,
-31,
-15,
6,
-11,
45,
2,
11,
10,
17,
-8,
-3,
37,
-32,
-16,
1,
-4,
14,
-34,
7,
-41,
-29,
24,
18,
-22,
35,
6,
-2,
-20,
-7,
-12,
-22,
25,
-14,
-24,
-3,
-33,
-13,
-14,
-29,
10,
9,
-32,
-33,
41,
-8,
-69,
25,
14,
-6,
83,
-7,
-19,
-52,
59,
-54,
45,
-24,
-11,
20,
7,
-52,
23,
-42,
7,
19,
47,
5,
-30,
14,
-17,
4,
49,
17,
16,
39,
-26,
-30,
40,
10,
49,
20,
23,
9,
-2,
31,
1,
3,
41,
-25,
13,
-28,
10,
31,
-8,
7,
26,
37,
37,
24,
16,
8,
-22,
31,
11,
-25,
-18,
15,
28,
21,
-6,
12,
18,
-10,
-7,
-47,
45,
-56,
45,
-67,
30,
-27,
62,
29,
11,
2,
8,
38,
-13,
31,
5,
50,
-14,
36,
5,
-34,
-38,
-7,
27,
-24,
5,
-28,
29,
35,
-31,
0,
44,
17,
37,
18,
-50,
-13,
-24,
-10,
-26,
-24,
28,
-6,
-42,
31,
20,
-1,
-2,
-51,
18,
-22,
15,
-34,
-1,
-3,
-14,
26,
19,
-35,
17,
-29,
-26,
-54,
-14,
-21,
22,
-44,
10,
-13,
-14,
-8,
10,
-33,
-4,
15,
-31,
2,
15,
0,
-14,
-10,
40,
23,
-12,
22,
13,
-6,
-48,
16,
32,
33,
40,
-47,
-25,
-40,
-10,
-23,
12,
38,
-52,
-26,
0,
-7,
14,
2,
-39,
19,
61,
-20,
12,
43,
57,
-10,
-40,
25,
38,
-65,
17,
8,
0,
-35,
-34,
-21,
27,
3,
-9,
-2,
-44,
-27,
8,
22,
-59,
1,
42,
-1,
-10,
-26,
-26,
52,
16,
19,
42,
1,
18,
-22,
29,
10,
22,
35,
49,
68,
-1,
7,
-7,
4,
36,
0,
-20,
-11,
20,
-9,
56,
-21,
-40,
10,
-16,
0,
46,
-34,
-29,
3,
5,
-34,
-83,
72,
0,
5,
-8,
-29,
-2,
-44,
-2,
-42,
-29,
48,
56,
17,
13,
34,
-7,
37,
6,
-4,
-13,
-22,
-25,
22,
-25,
-73,
6,
12,
17,
46,
-42,
16,
9,
-14,
-13,
13,
6,
17,
-22,
1,
-23,
22,
-31,
-80,
25,
0,
-12,
-28,
-28,
2,
-40,
5,
-60,
43,
16,
-4,
22,
-40,
-1,
34,
72,
14,
-24,
12,
-39,
-42,
-55,
19,
-24,
20,
31,
-56,
55,
35,
35,
8,
-10,
-20,
38,
-24,
-7,
-36,
49,
10,
-13,
13,
-9,
7,
-58,
-33,
-5,
8,
20,
-25,
41,
-21,
-57,
20,
10,
16,
36,
-28,
-61,
18,
-8,
33,
-22,
-3,
6,
47,
47,
-43,
59,
0,
43,
23,
37,
-47,
-57,
-23,
26,
18,
-30,
0,
23,
41,
-8,
-3,
36,
44,
-15,
42
] |
Long, J.
This action is brought to recover damages which the plaintiff claims to have sustained by the wrongful and willful conduct of the defendant in alienating the affections of plaintiff’s wife, breaking up and destroying his home; for aiding, counseling, and assisting plaintiff’s wife in procuring a divorce; and for having debauched and carnally known her.
It appears that in July, 1895, the plaintiff and his faipüy, consisting of his wife and three daughters, the eldest of whom was then nine years of age, were living in the village of Lisbon, Ottawa county. The defendant lived on a farm about one mile west from there. The two families were acquainted, and occasionally visited each other. In July the plaintiff went west to find work; leaving his family in Lisbon, provided with all the necessaries of life. He was gone about 11 months. It is claimed that during that time the defendant visited plaintiff’s wife at her home almost daily and nightly, and that he completely alienated the wife’s affections, and had carnal knowledge of her person. After plaintiff’s return, his wife commenced proceedings for divorce, and for the custody of the children. Plaintiff answered the bill, and in his answer prayed the custody of the children. On the hearing of that case, the court granted the custody of the children as prayed in the answer and cross-bill. After the conclusion of the divorce proceedings, this action was brought.
The adultery is alleged to have been committed on or about September 20, 1895; also, on the 27th, 28th, and 29th days of April, 1896, and on divers other days and times between September 20j 1895, and the commencement of this suit. It appeared by the testimony on the part of the plaintiff that defendant and plaintiff’s wife were often together; that defendant was seen frequently visiting her house at different times of night. It was shown that at one time these parties left their homes at Lisbon, together, about 4 o’clock in the morning, and did not return until the evening of the third day, during which time they were in the city of Grand Rapids, and attended a public dance. Other testimony was given which had a tendency to show the close relations of these parties. Several of the neighbors were called, who testified to the defendant’s constant visits to the house, and remaining late at night.
The court charged the jury, at the request of counsel for defendant, as follows:
“First. Before the jury in this cause can return any verdict in favor of the plaintiff, they must first find, by a preponderance of evidence, that the defendant did actually, and at the time or times set up in the declaration in this cause, have criminal intercourse, and committed adultery, with Louisa Miller, wife of said plaintiff in this cause. * * *
“Seventh. The charge in this case is criminal conversation, which consists in carnally knowing and committing adultery with plaintiff’s wife; and the loss of comfort, society, and assistance of the wife are charged, as a result of the adultery; and, unless you find from the evidence that the defendant did commit adultery with plaintiff’s wife, then your verdict shall be, ‘No cause of action.’
“ Eighth. The charge in this case is adultery alleged to have been committed by the defendant with the wife of said plaintiff between the 20th day of September, 1895, and the time of granting the decree of divorce in evidence in this cause. The burden of proving the charge of adultery is upon the plaintiff, and this he must establish by competent evidence. It cannot rest upon mere suspicion, but it must be proved by such a preponderance of evidence as convinces you of its truth. Where the burden of proof consists of circumstances only, to establish this fact it is necessary to show (1) an adulterous disposition on the part of the defendant; (2) an adulterous disposition on the part of the plaintiff’s wife; and (3) opportunity for the commission of the offense of adultery.”
The jury returned a verdict in favor of plaintiff for $2,000. Defendant brings error.
Several assignments relate to claimed errors in the opening to the jury by counsel for plaintiff. It is not necessary to set out here the remarks complained of, as no exceptions thereto were taken on the trial, and, so far as appears by this record, no objection was then made. It has been several times held by this court that, when the course of counsel in addressing the jury has not been excepted to and ruled on, this court cannot review it, even though recited in the bill of exceptions. Maclean v. Scripps, 52 Mich. 214; Hart Manfg. Co. v. Mann’s Boudoir-Car Co., 65 Mich. 564.
Error is assigned upon the ruling of the court in per mitting the plaintiff to give testimony in the case. This question need not be discussed, as it appears by the record that, while the plaintiff was permitted to give some testimony, the court thereafter, upon motion, struck the testimony from the record, and instructed the jury not to consider it. It is contended, however, by counsel for defendant, that the admission of this testimony was error, and, though stricken out, the effect of it upon the jury was prejudicial to the defendant. The plaintiff was not asked by his counsel, nor did they attempt to show by him, any fact or circumstance bearing upon the question of the adultery between his wife and the defendant; nor was he asked to state any conversation between himself and his wife. What testimony was given by him was fully sustained by other witnesses. We think the defendant’s case was not prejudiced by this testimony, in view of the fact that the court instructed the jury that they should not consider it.
It is contended that there was error “in plaintiff’s seeking to show, and parading before the jury as a fact, that there was common and notorious neighborhood talk of defendant’s relations with plaintiff’s wife.” The record does not bear out this claim. We find no evidence in the record as to the neighborhood talk about this matter. Plaintiff’s counsel sought to show what the talk was, and the court ruled against them.
It is contended that the court was in error in refusing to give certain requests of the defendant in charge to the jury. We have examined the general charge, and think that it covers the requests made by defendant, so far as he was entitled to them. • It would profit no one to set out here the requests, and the charge as given.
We find no error in the case. The judgment must be affirmed.
The other Justices concurred. | [
-9,
30,
31,
31,
-54,
9,
-5,
-17,
57,
-39,
-33,
2,
-3,
-29,
-9,
-35,
-37,
-63,
24,
-5,
-16,
-42,
1,
8,
32,
-3,
17,
-5,
-37,
-7,
-11,
43,
3,
21,
-22,
3,
31,
-21,
-29,
-31,
-5,
-51,
21,
-16,
16,
20,
52,
-33,
16,
14,
4,
-33,
-1,
21,
31,
-40,
0,
42,
36,
6,
25,
-7,
-23,
-41,
-12,
-53,
57,
15,
2,
2,
32,
-17,
28,
-34,
21,
-8,
30,
-8,
-48,
52,
-24,
-53,
28,
-37,
-18,
-34,
-20,
-4,
-51,
27,
-29,
57,
-13,
-5,
22,
-2,
-22,
55,
-11,
63,
-28,
6,
4,
26,
-28,
19,
6,
2,
1,
-20,
-2,
-16,
57,
13,
-1,
-53,
-13,
-34,
0,
-42,
45,
10,
36,
14,
47,
48,
-62,
-1,
46,
-35,
-9,
-10,
36,
4,
15,
-40,
15,
-6,
75,
-52,
23,
-10,
-14,
7,
-11,
19,
-36,
8,
20,
-11,
-81,
-45,
18,
66,
34,
14,
-23,
-48,
5,
-11,
-1,
-39,
-11,
-35,
-29,
-60,
-56,
33,
29,
-15,
10,
25,
-62,
-3,
-17,
15,
-22,
-14,
-8,
18,
50,
87,
-2,
-1,
26,
-50,
-14,
11,
-25,
-1,
20,
-17,
7,
-40,
-17,
58,
2,
0,
-30,
-17,
37,
-61,
-17,
44,
18,
11,
35,
33,
-19,
6,
20,
19,
19,
-42,
-51,
-37,
-19,
-19,
-44,
-18,
22,
36,
-23,
33,
-29,
-83,
-7,
14,
6,
-14,
-17,
-41,
16,
-43,
-27,
0,
-30,
34,
2,
33,
-18,
-12,
15,
6,
37,
24,
-29,
29,
-8,
54,
6,
3,
-17,
0,
27,
-8,
19,
11,
40,
11,
-4,
32,
-15,
0,
29,
-9,
23,
44,
-45,
-14,
1,
11,
68,
-29,
-12,
3,
-3,
63,
-25,
5,
15,
-31,
-14,
-13,
-16,
10,
-22,
14,
1,
-17,
-38,
4,
-18,
-42,
-5,
0,
0,
-18,
-20,
44,
1,
-20,
-8,
-18,
-23,
-5,
-17,
-28,
2,
-64,
3,
43,
51,
4,
2,
-5,
-34,
30,
1,
-21,
-15,
-7,
-25,
22,
-35,
-1,
17,
-1,
-39,
39,
-34,
18,
13,
0,
0,
-6,
-17,
12,
-13,
-51,
50,
-23,
10,
-1,
-38,
13,
23,
-36,
76,
16,
-28,
-75,
26,
17,
-69,
0,
-15,
-38,
-8,
14,
49,
12,
-24,
-41,
10,
11,
26,
-29,
39,
5,
-27,
-1,
-37,
45,
4,
-18,
-12,
-21,
5,
78,
26,
-11,
-1,
32,
0,
-11,
-53,
-40,
-28,
-6,
-62,
18,
22,
-13,
4,
26,
6,
-37,
-33,
-15,
-8,
4,
55,
6,
-52,
27,
-20,
-16,
-8,
12,
21,
-45,
0,
0,
51,
-27,
10,
16,
65,
12,
46,
91,
48,
-16,
59,
25,
37,
-11,
2,
-3,
41,
40,
56,
18,
92,
-3,
-30,
24,
1,
38,
-17,
1,
-1,
32,
37,
8,
-38,
-7,
50,
-4,
29,
-19,
-11,
43,
-22,
24,
11,
-43,
12,
2,
13,
3,
-3,
26,
13,
-23,
-50,
-37,
-26,
23,
-9,
-28,
0,
13,
-25,
-5,
-27,
29,
-1,
12,
15,
-18,
2,
-2,
-11,
0,
-30,
-23,
-23,
-13,
8,
-12,
6,
58,
-14,
-24,
-9,
23,
9,
11,
-12,
-1,
24,
-26,
7,
9,
-7,
59,
-6,
48,
7,
-25,
1,
6,
-19,
-15,
28,
-16,
5,
-21,
-7,
25,
-5,
30,
17,
16,
74,
9,
-41,
22,
-13,
6,
-21,
-30,
3,
31,
26,
-1,
5,
-54,
33,
44,
71,
6,
14,
2,
15,
-6,
25,
14,
26,
-28,
29,
-10,
0,
6,
7,
-33,
-8,
-58,
-6,
-59,
33,
-53,
9,
-34,
0,
-42,
20,
-46,
-14,
29,
1,
-4,
-21,
26,
-20,
-7,
-28,
38,
9,
6,
-51,
5,
-5,
12,
22,
7,
-13,
0,
-20,
45,
-24,
5,
59,
-68,
32,
19,
17,
-15,
15,
-70,
-28,
-27,
0,
58,
-69,
0,
-4,
0,
19,
0,
-26,
17,
29,
23,
-11,
0,
-48,
29,
21,
-30,
26,
-10,
-6,
-16,
8,
-13,
-51,
-21,
-30,
5,
27,
34,
20,
-7,
34,
42,
-6,
-16,
7,
38,
-18,
36,
-35,
12,
-40,
4,
-29,
0,
-5,
7,
20,
-10,
-3,
-26,
38,
5,
10,
36,
13,
2,
1,
32,
9,
5,
37,
8,
-27,
-11,
0,
-47,
52,
40,
-13,
-25,
-20,
22,
71,
-24,
-5,
16,
33,
32,
14,
22,
-13,
-15,
-18,
-14,
-21,
10,
-55,
24,
-48,
39,
17,
-5,
2,
1,
-19,
5,
22,
6,
-8,
-1,
18,
-33,
-16,
-51,
-14,
9,
12,
-33,
1,
11,
14,
-16,
-12,
31,
-49,
32,
-35,
-46,
-17,
-13,
-50,
-3,
-29,
-50,
19,
1,
-33,
-9,
-49,
-17,
19,
17,
-83,
0,
13,
-73,
-28,
33,
29,
8,
2,
8,
16,
-18,
41,
52,
10,
-20,
31,
-20,
12,
-14,
-41,
-39,
-3,
36,
-3,
-46,
-82,
-27,
-23,
-6,
21,
-22,
-38,
22,
-17,
-9,
39,
-2,
-13,
53,
6,
-56,
0,
0,
12,
9,
-16,
-11,
41,
-3,
48,
39,
-3,
-58,
26,
-9,
-22,
-1,
18,
-8,
17,
-17,
2,
-4,
-20,
-11,
-5,
36,
-19,
6,
-13,
36,
-6,
49,
-37,
-32,
-38,
31,
3,
21,
39,
8,
38,
-31,
-13,
-24,
7,
-27,
-9,
20,
19,
-31,
33,
-19,
-6,
-8,
22,
4,
22,
-38,
-74,
35,
2,
22,
-19,
-35,
68,
28,
76,
0,
72,
-46,
5,
-47,
-56,
-47,
-11,
-15,
12,
10,
8,
-27,
-46,
-41,
-33,
-39,
-21,
-20,
16,
-32,
11,
17,
-8,
-19,
-61,
15,
16,
10,
54,
-20,
13,
13,
-22,
-40,
-37,
1,
-37,
44,
2,
1,
-35,
36,
30,
10,
21,
7,
-39,
-9,
6,
-18,
-23,
-32,
6,
26,
-21,
0,
7,
-18,
-34,
11,
30,
8,
31,
-25,
-33,
18,
7,
15,
2,
48,
-46,
35,
3,
0,
20,
11,
-31,
-2,
-20,
-17,
-30,
48,
17,
-2,
-43,
-37,
43,
39,
36,
-42,
59,
17,
30,
45,
13,
1,
0,
26,
26,
-30,
-13,
30,
-45,
-29,
27,
62,
-37,
-11,
18,
-11,
-21,
1,
44,
49,
11,
18,
-30,
-46,
9,
28,
21,
-18,
-18,
-41,
-24,
-11,
-1,
-24,
20,
43,
45,
-48,
40,
-79,
-49,
0,
-9,
1,
-45,
-29,
-30,
1,
-7,
14,
48,
-10,
28,
9,
-6,
-100,
4,
-27,
10,
4,
45,
24,
12,
-43,
20,
23,
-3,
3,
-11,
-9,
48,
40,
9,
38,
17,
-23,
17,
-30,
-18,
-1,
1,
26
] |
Per Curiam.
The complainant filed the bill in this cause to reform a deed and mortgage. Upon the hearing, the relief prayed was denied; but the decree granted an extension of time within which she might redeem from the sale of the premises upon foreclosure of said mortgage. A petition for leave to file a bill of review was filed, and the complainant has appealed from a denial of the same. In our opinion, the action of the learned circuit judge is justified by the record, and it is affirmed, with costs. | [
-2,
-9,
-28,
49,
-11,
28,
38,
34,
-10,
51,
24,
0,
20,
-8,
6,
22,
41,
-12,
-10,
-16,
-72,
33,
29,
23,
-38,
-32,
17,
-16,
12,
30,
7,
-39,
-23,
40,
-7,
-57,
32,
16,
55,
5,
2,
-26,
0,
-15,
-51,
-18,
12,
-9,
3,
-24,
-17,
-18,
-46,
-37,
-4,
-3,
-25,
-65,
-62,
-44,
-2,
5,
29,
12,
-5,
41,
-55,
-17,
26,
-31,
-3,
13,
2,
-6,
20,
-19,
-1,
-27,
-67,
9,
-34,
-37,
55,
-9,
0,
1,
25,
3,
-28,
22,
-22,
-8,
-11,
-49,
-39,
59,
46,
-8,
60,
2,
-58,
28,
37,
8,
-16,
-58,
-39,
-61,
-4,
-38,
9,
-48,
7,
-24,
-13,
-3,
-29,
5,
-7,
-60,
0,
40,
6,
-62,
-5,
39,
-18,
-20,
-14,
-15,
-10,
-4,
-14,
57,
33,
-25,
39,
-7,
42,
-39,
42,
-8,
12,
-56,
-23,
-21,
16,
-24,
-19,
7,
9,
57,
-11,
54,
14,
16,
-8,
-2,
28,
4,
31,
17,
-49,
-20,
1,
-11,
8,
6,
24,
-14,
29,
42,
-27,
0,
-11,
-38,
28,
21,
-28,
-4,
4,
48,
9,
-2,
-4,
31,
-17,
-11,
-41,
-47,
-28,
22,
18,
5,
29,
12,
39,
0,
35,
20,
-62,
0,
-10,
30,
16,
-39,
-1,
-19,
-7,
-6,
-10,
18,
-33,
-22,
-3,
-15,
72,
1,
-6,
34,
29,
19,
-14,
-2,
-53,
-26,
23,
3,
33,
-15,
-30,
-30,
13,
-5,
20,
49,
35,
-4,
13,
-4,
-43,
60,
13,
8,
-67,
-5,
-29,
5,
50,
-44,
-42,
30,
-3,
23,
13,
19,
10,
31,
-7,
-1,
26,
12,
-8,
-4,
27,
-8,
7,
47,
20,
-12,
24,
1,
0,
22,
54,
11,
-41,
-18,
-26,
17,
11,
11,
8,
-1,
-56,
54,
9,
11,
70,
10,
36,
-40,
-22,
12,
15,
17,
-50,
2,
25,
-17,
-9,
-76,
-32,
19,
-22,
-49,
19,
7,
35,
-20,
-5,
35,
57,
15,
-18,
1,
-55,
-16,
-3,
-31,
43,
0,
12,
-6,
3,
1,
72,
-39,
-17,
34,
22,
8,
-14,
24,
64,
55,
7,
-21,
-65,
18,
14,
46,
-1,
38,
24,
-9,
-7,
-31,
9,
66,
-45,
20,
-37,
29,
10,
-29,
5,
-32,
-73,
14,
15,
6,
-26,
-43,
4,
-28,
13,
-23,
16,
27,
-9,
-22,
-7,
18,
-43,
-22,
-8,
-6,
8,
1,
0,
-58,
37,
49,
22,
35,
-6,
-17,
44,
-7,
-31,
9,
29,
-24,
-10,
-8,
26,
21,
-60,
18,
-6,
-30,
-34,
34,
-49,
67,
-20,
-17,
-15,
52,
-3,
2,
-18,
29,
-26,
42,
30,
17,
60,
-2,
-52,
-51,
-60,
37,
-46,
-31,
2,
-4,
56,
33,
-25,
-16,
-12,
-25,
-12,
28,
-6,
-13,
-20,
28,
3,
-16,
-19,
5,
5,
27,
-40,
-42,
15,
-32,
6,
-16,
3,
1,
-4,
12,
9,
25,
-35,
-13,
11,
-25,
-6,
30,
32,
-28,
5,
18,
-1,
-21,
-12,
0,
0,
36,
7,
-3,
-32,
11,
-25,
14,
-6,
14,
-16,
23,
-16,
-19,
-41,
-12,
-36,
-30,
47,
-21,
73,
-8,
-7,
-19,
-22,
-34,
-45,
54,
20,
19,
48,
-9,
3,
-50,
-55,
33,
28,
30,
16,
-23,
21,
14,
-5,
42,
30,
-13,
-13,
4,
-48,
-36,
-46,
-45,
-59,
-14,
-25,
53,
17,
8,
-34,
47,
-31,
-33,
-51,
26,
-37,
28,
11,
21,
-79,
49,
-36,
45,
37,
56,
13,
-23,
-12,
34,
-2,
-15,
-7,
22,
-8,
33,
0,
-22,
9,
-12,
-14,
-9,
-2,
-11,
43,
5,
82,
-49,
-55,
38,
-2,
-15,
18,
-3,
30,
-70,
11,
2,
-7,
-40,
-36,
-18,
11,
-60,
22,
-44,
6,
18,
13,
-25,
-9,
-32,
37,
-39,
-47,
-32,
-41,
-54,
56,
41,
-38,
1,
-26,
-7,
20,
-8,
-24,
37,
-15,
19,
26,
19,
-1,
4,
6,
-1,
0,
31,
5,
8,
20,
28,
16,
-9,
-30,
-19,
16,
-9,
-21,
27,
26,
7,
59,
-51,
-43,
38,
-11,
-13,
-30,
-21,
-25,
9,
-25,
-24,
-36,
39,
-14,
-18,
7,
8,
37,
66,
11,
-34,
62,
-24,
39,
-90,
36,
-59,
9,
-46,
-9,
42,
2,
-13,
30,
16,
-13,
37,
-3,
17,
60,
5,
20,
27,
-12,
12,
-19,
-37,
5,
-42,
25,
-1,
-18,
-10,
24,
12,
9,
75,
35,
-19,
27,
1,
-3,
-11,
19,
73,
36,
5,
33,
14,
-4,
18,
27,
19,
-13,
-6,
-17,
-10,
-35,
-4,
-21,
2,
16,
-24,
27,
-10,
-5,
-42,
14,
-25,
4,
-9,
-39,
-35,
11,
12,
36,
17,
-13,
19,
7,
18,
-59,
8,
-28,
-22,
40,
-75,
-26,
36,
-6,
-41,
28,
-10,
-44,
33,
-19,
11,
42,
-17,
-56,
13,
-35,
-10,
10,
-45,
16,
7,
-3,
-7,
13,
14,
35,
37,
-21,
-20,
-13,
34,
-7,
6,
7,
-55,
4,
-10,
-7,
-3,
99,
-27,
-16,
-25,
-21,
10,
63,
-31,
2,
-54,
31,
-32,
25,
-15,
-50,
-3,
18,
45,
-27,
22,
29,
-47,
-28,
0,
17,
5,
52,
33,
-66,
14,
-28,
12,
15,
3,
-30,
-40,
-22,
20,
13,
20,
-32,
-34,
23,
51,
-4,
12,
41,
4,
29,
-9,
-12,
32,
25,
-67,
34,
63,
7,
-34,
3,
39,
42,
-27,
-57,
19,
31,
4,
20,
14,
-59,
5,
3,
39,
30,
-60,
49,
-4,
-4,
0,
-27,
-26,
-20,
-41,
40,
29,
7,
-37,
-16,
-9,
-18,
18,
80,
54,
2,
-2,
-13,
22,
2,
-25,
8,
-30,
-11,
-33,
36,
-17,
-6,
6,
4,
31,
14,
11,
-20,
13,
29,
-13,
-20,
40,
11,
19,
-19,
-24,
-6,
-17,
-14,
17,
10,
17,
40,
-9,
-21,
16,
-27,
1,
-7,
4,
-6,
-18,
-2,
-18,
-4,
-14,
-58,
-33,
-8,
18,
-29,
-21,
14,
-36,
59,
-53,
-34,
-43,
30,
-20,
-10,
53,
-19,
-73,
6,
24,
-18,
43,
-13,
-47,
27,
-8,
-41,
-1,
-9,
19,
39,
-23,
-9,
-22,
11,
-11,
10,
4,
-3,
65,
-7,
-34,
-26,
28,
16,
-13,
0,
30,
1,
31,
-43,
32,
43,
14,
-21,
-17,
-11,
5,
1,
47,
23,
56,
-16,
-48,
0,
9,
-51,
13,
-1,
1,
-16,
-27,
28,
-35,
54,
-21,
-28,
-30,
-35,
44,
6,
61,
-15,
38,
10,
-21,
20,
1,
11,
-32,
-27,
-16,
-24,
29,
69,
18,
0,
-9,
-31,
-38,
17,
18,
37,
10,
-14,
20
] |
Long, J.
This action is based upon 10 land contracts made by Joseph S. Stockwell, as trustee of the defendant society, to the plaintiff. It was tried before a jury, and the court directed a verdict in favor of plaintiff for $1,100.75.
The defendant society was organized November 20, 1872, under the statute providing for the incoi-poration of agricultural societies. After its organization, it entered into possession of certain real estate situate in 'the city of Pontiac, and continued to occupy the same, and to hold one or more fairs thereon each year, until 1895. At that time it became financially involved. At a regular meeting in January, 1895, the members passed unanimously a resolution purporting to authorize its board of directors to sell all its fair grounds, and purchase others. The lands held were valuable for residence purposes, and the board caused them to be platted into 102 city lots, and arranged for an auction sale thereof; and, in order to facilitate a sale and conveyance thereof, the board executed a deed of conveyance of all the lots to Mr. Stockwell, as trustee, for the use and benefit of the corporation, and, on June 20th following, all said lots were sold at public auction to numerous purchasers. At that sale, plaintiff bid off 10 lots, and entered into contracts with the trustee for the purchase; payments to be made on or before three years from date. Plaintiff at once took- possession of the lots, and made improvements thereon. It appears that the defendant, in making the sale, neglected to comply with section 2308, 1 How. Stat., which provides, among other things:
“The said society may, in case the uses and convenience thereof so require, upon application to the circuit court of the county where such society is organized and located, obtain and have authority to sell, from time to time, the whole or any part of its real estate, the granting of such authority to be in the discretion of the court; and such application to be made only when authorized by said society, at an annual meeting thereof, by a vote of not less than two-thirds of the members of such society present at such meeting, and notice of the intention to vote for such application' having been published in some newspaper published in said county,” etc.
No application was made to the circuit court for that county for authority to make the sale.
Defendant claims that, soon after such sale, it purchased, at great expense, other lands, in another part of the city, for fair-ground purposes, entered into possession thereof, and made improvements thereon.
In the meantime a question was raised as to the society’s title to outlot 15; being about six acres of the land so sold by defendant, and which had been formerly owned by Moses Wisner and others. It was also questioned whether the heirs of Mr. Wisner did not have some interest in the said six acres. Six of the lots .purchased by plaintiff were situate in this six acres. Thereupon the defendant and the trustee, on December 18, 1895, filed a bill in the circuit court in chancery for Oakland county, setting forth all the facts in the premises, making the plaintiff and the heirs of Mr. Wisner, and numerous other parties, defendants, and praying for a decree quieting the title to said lands, subject to all land contracts made by Stockwell as such trustée, and also praying—
“That said Oakland County Agricultural Society may be decreed to have had the right to sell and convey all said lands and premises at the time said auction sale was held as aforesaid, and at the time said deed in trust was made to said Stockwell.”
The plaintiff did not appear in that case, and the bill was taken as confessed as to him. The Wisner heirs appeared, and some of them answered the bill; and on March 17, 1896, a decree was made and entered in said cause quieting the title to said six-acre parcel, subject to deeds and contracts made by said trustee, and further decreeing—
“That at the time the said complainants caused said lands on said outlot 15 [being the six acres in question] to be sold at auction, on June 20, 1895, the said Oakland County Agricultural Society and the said Joseph S. Stock-well, as its trustee, had legal right and authority to sell and convey all the lots and lands situated on said outlot 15 in fee simple, and that the several contracts to convey the same to the several defendants in this cause, made by said trustee, are legal and valid contracts; and the absolute and unconditional title in fee simple of all the lands and premises contained in said outlot 15, excepting said lots 23, 24, 28, and 31, is hereby decreed to be in, and quieted in, Joseph S. Stockwell, the complainant, for the use and benefit of said Oakland County Agricultural Society, subject to all contracts made by him as such trustee to convey the same to any and all the defendants in this cause, in accordance with the terms and conditions of said contracts,” etc.
So far as appears by this record, this decree stands unaltered and unrevoked.
In January, 1897, in order to cure the informality in not following the statute as to the preliminary proceedings required in order to authorize the sale by the society, the legislature passed an act, which was approved January 30, 1897, which, after reciting the facts hereinbefore stated, and also reciting that no legal proceedings of any kind had been commenced by any person for the purpose of avoiding or invalidating any such proceedings, and that there was no litigation pending with reference to any of said matters, provides—
‘ ‘ That all the said proceedings be and the same are hereby ratified, confirmed, and made valid, to the same extent as though said section of said annotated statutes had been fully' complied with in making said sales; and the said plat, and the said deed in trust to the said Stockwell, and the said auction sale, and all deeds and contracts made by the said Stockwell as such trustee in pursuance thereof, are hereby ratified, confirmed, and made valid.” Act No. 391, Local Acts 1897.
It is the claim of the defendant that this curative act reverted to the time of the sale, and made the acts done then as valid as though the formalities in question had been followed.
It appeared on the trial that the plaintiff knew nothing of the necessity of obtaining the permission of the circuit court to make a valid sale, or of any mistake on the part of the society in making it before an order of the court was obtained, until the bill was filed to perfect such sale. After that time, and about the 1st of June, 1896, he made a tender of the amounts due upon his contracts. No deeds were made at that time; but on the trial it appeared that on June 18, 1896, a deed was duly made and executed by Mr. Stockwell to the plaintiff, conveying all the lands described in all the contracts, and tendered to the plaintiff. The plaintiff thereafter refused to accept the deed, and made a demand for repayment of the amount paid by him on the contracts, and for the value of the improvements made by him on the said lots.
The court, having substantially recited these facts in his charge to the jury, said:
“Now, upon these facts, I deem it my duty to take the case from the jury, and direct a verdict for the plaintiff or the defendant; and with me it all turns upon the question of whether a curative statute would bind Mr. Going, or whether it will not. * * * The witnesses are substantially agreed that the sale on June 30, 1895, was preceded by the opening statement of Mr. Davis, as president of this society, that the title of the society to these lots was perfect; that it had submitted the matter to learned and eminent attorneys, who advised that the society could give a good and valid title to purchasers, and that the title was .all right. Mr. Davis himself was an attorney, as well as president, and it is probable that this fact gave added weight to his statement. A fair interpretation of these statements made on behalf of the defendant is that intending purchasers understood that they could safely bid off these lots, relying upon no serious loss or injury from defects in title, or omissions by the society to procure the requisite authority to sell. Mr. Going had a right to rely upon these statements in making his bid. Mr. Davis need not have made such statements, but they were made to> induce buyers to purchase; and, while he did not so intend, they were untrue, in law. Having made them, he was bound to know that they were true. While he did not intend to make false statements, yet, having made them, he was bound to know that they were true, ^before asking bidders to act on them. Mr. Going’s attorney has omitted to ask the question, but it is plainly evident, from his conduct, and from all the circumstances surrounding the case, that Mr. Going would not have bid the prices he did at the sale, had he not relied upon Mr. Davis’ statement; and it is quite probable that had he known that he must wait until January, 1897, for a curative statute to perfect the title, he would not have purchased the lots at all, nor any of them.
“ There is no claim by counsel for plaintiff, nor is there by the court, that Mr. Davis or the society intended to de fraud Mr. Going when the statement of Mr. Davis was made, because they were all ignorant of 1 How. Stat. § 2308, requiring an order from the circuit court; but, while not so intended, the legal effect of the statement was to perpetrate á fraud upon him, by inducing and persuading him to purchase lots, and pay prices for them, which he would not otherwise have purchased, or paid, but for his reliance upon the representations; or, to speak more accurately, the wrong consisted in compelling him to keep lots purchased on the faith of such statements, after it was found they were not true in fact. The contracts were therefore such as originally were inequitable and unjust, and such as Mr. Going had originally a right to rescind. For that reason it follows that the legislature could not force him to abide by them,-without his assent, unless he is estopped by his statements, acts, and conduct.
“To constitute one’s acts and statements an estoppel, they must have been done and made with a full knowledge of the facts. There is no claim that Mr. Going knew of this cloud against the title until after March 17, 1896. His contracts contained these provisions: ‘ Payments can be made on or before they become due; and it is further covenanted by and between the parties hereto that on the performance of all the conditions to be done and performed, at the time and manner above mentioned and specified, on behalf of said party of the second part, that the said party of the first part shall execute a good and sufficient warranty deed to such party of the second part.’ He tendered the money under the first of these clauses. * * * There was a failure to deliver the deed for a short time, but the society was entitled to a reasonable length of time. The tender was a valid one, under the circumstances, when Stockwell expressed his satisfaction with the amount; and Mr. Going was, within a reasonable time, entitled to such a deed as Mr. Davis’ statements and his contracts fairly imply. At that date the society could not give such a conveyance. No one could then know positively that a curative or healing act would ever be passed, or, if so, when. It is quite probable that, if local sentiment had been such as to influence the members from Oakland county to oppose it, no such act could ever have been passed. Mr. Going was not bound to accept the title with a cloud of this character upon it; and I discover nothing in his conduct between March 17, 1896, the date when he became possessed of this information as to this cloud, and the date of this refusal, that would estop him from refusing it. * * * ”
The court thereupon directed the verdict in favor of plaintiff for the amount paid by him on the contracts, with 6 per cent, interest from the date of the tender, and also for the value of the improvements made by' him on the premises.
For the purpose of the discussion of the case, we shall treat of the four lots not included in this six-acre tract. The proceedings in the circuit court, in chancery, to quiet title, had no reference to these four lots; so that the defendant’s claim that it could convey a good title must rest on the curative act of 1897. It must be conceded that the defendant corporation could not sell and dispose of this real estate without pursuing the method pointed out by the statute, and that the contracts, and consequently the deeds tendered to plaintiff in June, 1896, were invalid. Does the curative act aid the defendant, as to these four lots, in its claim now presented? We think not. On December 3, 1896, the plaintiff demanded the money paid by him on these contracts, as well as the money paid for improvements. The demand was refused. This was before the curative act was passed. We think that at that time the plaintiff had the right to have his demand complied with, as to these four lots. He purchased the property for speculative purposes, and, under his contracts, had the right to pay the whole contract price at any time, at his option. He had tendered before that the whole amount remaining unpaid on the contracts. He was not compelled to await the action of the legislature for the defendant to perfect the title sought to be conveyed by the defendant to him. Plaintiff was making improvements on the property, and when he found that the corporation had not conveyed the title, by reason of the defect in not complying with the statute, he was not bound to wait longer for a title to be perfected. He could not capriciously refuse to accept a deed; and if, when the deed was first tendered to him, the defendant had had a good title, undoubtedly the tender would have been in time. But, before the act was signed by the governor, this action was commenced. At the time of the commencement of the action, therefore, the curative act was not in force. We think it did not aid the defendant’s case that a tender of the deed was made after the act was approved. The status of the parties, if not fixed by the demand of the return of the money on December 3, 1896, certainly was fixed by the commencement of suit. The case falls, very clearly, within Potter v. Ranlett, 116 Mich. 454. The court was therefore not in error in directing the verdict for plaintiff, so far as these lots are concerned.
The other lots — those on outlot 15, being the six acres in which the Wisner heirs claimed some interest, and in reference to which the bill in chancery was filed — stand in a different position, so far as the rights of the parties are concerned. The plaintiff was made a party to that suit. The prayer of the bill has been heretofore set out, and it is unnecessary to repeat it; but it shows just what relief the defendant corporation was asking, and the decree grants the relief prayed. The plaintiff himself has made no motion to disturb that decree. It must be treated as res adjudicata as to .him, and conclusive upon all the parties and their privies. Kent County Agricultural Society v. Houseman, 81 Mich. 609. Therefore, so far as the parties to this action are concerned, the question was settled in that suit that the defendant had conveyed a good title by these contracts. The decree was made and entered March 17, 1896, which was before the time plaintiff made his tender of the money on the contracts. That tender was made the fore part of June, 1896, and the deeds under the contracts tendered to plaintiff on the 23d of that month.
Some question was raised on the trial that the decree entered in the chancery cause was not the decree which the court intended to make. But that decree is set out in the record, and, so far as appears by this record, stands unreversed and undisturbed, and is binding upon the parties.
The court was in error in directing the verdict in favor of plaintiff for the lots covered by the decree. The judgment must be reversed as to those lots, and a new trial ordered.
The other Justices concurred. | [
-2,
46,
36,
7,
11,
0,
34,
32,
22,
15,
-20,
-8,
44,
26,
21,
-19,
25,
-19,
0,
8,
57,
-33,
-24,
-4,
-35,
-27,
-7,
-11,
10,
-2,
4,
-20,
17,
-15,
-66,
42,
-13,
-18,
6,
-41,
21,
35,
-5,
-11,
16,
18,
23,
-12,
19,
13,
-7,
-4,
5,
-6,
-36,
-25,
-26,
2,
0,
13,
26,
-5,
29,
20,
65,
31,
-41,
-23,
8,
-55,
-20,
0,
-13,
27,
56,
-7,
42,
-36,
5,
-16,
-20,
-12,
47,
-58,
-29,
-38,
-13,
-30,
-12,
-45,
-37,
1,
-9,
8,
30,
-7,
-7,
-13,
34,
17,
-1,
-59,
-14,
56,
-48,
-3,
-15,
8,
-4,
-15,
-17,
-28,
78,
-15,
8,
-7,
-5,
-30,
14,
1,
3,
-39,
45,
-43,
-28,
18,
36,
9,
-16,
-17,
47,
-56,
-24,
11,
7,
-4,
-7,
-25,
21,
-57,
57,
54,
-48,
-20,
-11,
-31,
-9,
12,
-25,
-4,
-45,
-3,
-7,
16,
6,
-14,
16,
-14,
14,
-17,
-7,
-8,
-30,
-30,
-24,
22,
-4,
-15,
-6,
46,
-13,
13,
-5,
-38,
-23,
-41,
18,
0,
-54,
23,
16,
-10,
-21,
6,
-1,
-51,
-16,
-12,
-2,
-33,
41,
6,
-7,
-5,
-12,
47,
10,
-1,
-26,
30,
44,
10,
-29,
16,
15,
-40,
51,
10,
-15,
17,
-46,
-6,
38,
5,
0,
10,
-39,
-2,
1,
-64,
45,
20,
-19,
54,
9,
-41,
36,
0,
4,
0,
-15,
49,
62,
-49,
-17,
-26,
-57,
51,
-11,
26,
-33,
-3,
4,
12,
-42,
-8,
21,
-22,
-17,
54,
-13,
13,
-52,
20,
-5,
-8,
-32,
-31,
-44,
14,
31,
0,
-17,
12,
15,
-12,
0,
28,
-55,
43,
-16,
-12,
54,
0,
-23,
-23,
-14,
-39,
29,
1,
38,
-31,
-7,
-42,
-9,
22,
-27,
23,
-78,
7,
-17,
51,
11,
-8,
50,
38,
-31,
-4,
86,
-7,
-50,
38,
-25,
-14,
17,
-27,
-28,
-29,
18,
0,
28,
-37,
-7,
-28,
-1,
-40,
-18,
-23,
5,
-33,
-46,
-7,
-10,
21,
35,
-4,
41,
-45,
-18,
26,
14,
-45,
22,
-11,
7,
19,
-4,
-25,
-17,
-24,
19,
24,
29,
32,
17,
-6,
-11,
3,
8,
-40,
-37,
4,
2,
18,
-4,
4,
-13,
8,
-22,
50,
31,
19,
34,
-23,
14,
19,
-25,
-36,
10,
37,
14,
56,
11,
35,
8,
6,
-31,
-56,
0,
51,
28,
0,
36,
3,
70,
-24,
-23,
-29,
-2,
33,
-34,
-1,
-8,
56,
29,
26,
16,
-19,
-40,
-29,
25,
37,
-29,
5,
-62,
26,
-6,
-22,
7,
19,
-10,
-2,
12,
-48,
34,
-18,
37,
-35,
43,
-9,
24,
41,
-17,
24,
-11,
-4,
14,
-10,
-62,
18,
0,
13,
64,
12,
32,
-4,
-31,
29,
-31,
18,
5,
-28,
0,
-7,
9,
-12,
-6,
7,
41,
0,
1,
23,
-59,
23,
30,
72,
12,
-19,
50,
-43,
3,
-11,
-41,
-21,
-24,
31,
-8,
-45,
10,
1,
-44,
45,
31,
-29,
-39,
0,
-2,
-3,
9,
31,
80,
29,
-27,
-23,
-20,
-31,
-80,
34,
-7,
13,
31,
-16,
34,
26,
40,
24,
38,
-3,
36,
25,
24,
17,
-1,
-44,
-29,
40,
6,
-32,
-16,
20,
22,
-52,
3,
32,
25,
16,
15,
9,
5,
12,
30,
-10,
-55,
-14,
8,
21,
40,
41,
42,
-63,
-11,
-23,
-65,
26,
-4,
-46,
15,
38,
14,
-38,
-30,
-13,
55,
-10,
-63,
-6,
37,
-55,
26,
30,
27,
-36,
-26,
-11,
13,
-9,
-9,
-38,
33,
41,
-36,
-42,
41,
-57,
55,
-24,
33,
-14,
-5,
32,
25,
3,
4,
-29,
28,
-33,
21,
12,
4,
46,
-31,
-43,
23,
-51,
31,
10,
15,
-25,
-4,
53,
47,
20,
-18,
-13,
-5,
-4,
-10,
8,
4,
27,
-13,
-23,
-9,
2,
14,
-14,
-37,
-23,
-12,
-3,
-48,
8,
45,
21,
16,
45,
10,
-13,
-16,
26,
8,
-38,
59,
-28,
40,
-2,
-31,
12,
1,
-1,
-15,
-29,
4,
17,
-16,
8,
20,
28,
-58,
9,
-33,
-24,
-2,
2,
17,
-1,
-67,
16,
-43,
24,
-39,
27,
0,
-22,
-21,
11,
19,
-20,
19,
-41,
59,
47,
-22,
32,
8,
-11,
56,
-13,
10,
9,
55,
-50,
32,
32,
3,
-33,
5,
3,
51,
10,
-8,
0,
-8,
17,
-1,
18,
-22,
25,
17,
-43,
35,
18,
-20,
5,
-6,
-29,
38,
-23,
-26,
-40,
4,
19,
8,
26,
-1,
27,
-6,
-1,
-4,
-62,
4,
-16,
22,
12,
7,
11,
22,
0,
-9,
10,
-6,
-11,
-48,
-40,
59,
37,
5,
2,
-6,
-30,
-16,
53,
-4,
-5,
20,
54,
-7,
-11,
-3,
-59,
0,
-47,
0,
1,
10,
7,
-11,
7,
-24,
-32,
5,
32,
38,
13,
43,
-62,
-46,
8,
-59,
-45,
-10,
20,
-45,
9,
-10,
24,
43,
18,
0,
-6,
23,
31,
-77,
-17,
31,
-62,
23,
-36,
-15,
-43,
66,
-19,
9,
-24,
-36,
-87,
4,
41,
36,
18,
-34,
-38,
38,
-12,
-67,
14,
37,
36,
53,
-43,
-52,
31,
-30,
10,
-27,
23,
-12,
6,
-7,
-17,
-36,
58,
-31,
-44,
-5,
0,
-44,
17,
5,
20,
-6,
-20,
-11,
-27,
-6,
-20,
3,
12,
-30,
14,
39,
0,
31,
18,
45,
-22,
4,
-15,
-21,
-20,
6,
-10,
-19,
-13,
0,
-18,
5,
8,
-13,
-20,
-1,
-22,
-47,
-27,
-23,
-36,
-12,
-5,
39,
12,
25,
-22,
-6,
18,
-7,
-18,
-10,
-27,
-13,
28,
6,
68,
-50,
19,
29,
-5,
-17,
0,
-4,
-1,
-41,
-54,
-42,
34,
-20,
13,
20,
-13,
27,
14,
-19,
-78,
-35,
15,
-6,
-7,
-51,
-3,
28,
-21,
14,
31,
-23,
-35,
-13,
-1,
13,
11,
27,
16,
-2,
-54,
-44,
-3,
-24,
47,
-19,
-4,
-22,
26,
0,
18,
-68,
-13,
-8,
-15,
15,
-14,
26,
28,
12,
-6,
44,
-35,
11,
31,
2,
-79,
60,
-26,
38,
50,
14,
-6,
-27,
-9,
-15,
40,
21,
-32,
-42,
24,
18,
55,
-48,
-34,
-49,
-33,
28,
13,
10,
26,
22,
-9,
11,
23,
-3,
36,
-3,
24,
20,
-23,
-4,
12,
36,
21,
13,
39,
23,
-42,
4,
-31,
-60,
33,
-10,
-30,
-7,
-8,
-36,
-18,
31,
22,
34,
12,
21,
-11,
-17,
1,
5,
-43,
50,
-5,
-2,
-2,
9,
-21,
68,
44,
-4,
-7,
-57,
-79,
50,
51,
-29,
22,
27,
24,
3,
-12,
9,
-23,
7,
29
] |
Per Curiam.
The purpose of this petition is to compel the respondent to remove the receiver, and to vacate an order made May 14th, setting the case for hearing June 20th.
The removal of the receiver was asked because one of the creditors of the American Eagle Tobacco Company is a stockholder, director, and president of the receiver, the Union Trust Company. This is not sufficient cause for removal.
It was within the discretion of the circuit judge to fix the time for hearing. The proceeding of Mrs. Barker is ancillary to the main case, and it is within the discretion of the court to determine when such proceedings shall be heard.
The order to show cause is denied. | [
48,
-12,
1,
46,
21,
14,
2,
62,
-21,
-4,
36,
-33,
23,
22,
-81,
-20,
36,
27,
30,
6,
-9,
21,
23,
29,
8,
-69,
1,
-27,
-4,
45,
-15,
-80,
-31,
-1,
23,
-48,
9,
-4,
19,
22,
-8,
3,
48,
24,
-31,
-48,
-54,
-2,
-23,
32,
38,
-10,
6,
13,
-26,
-16,
-14,
-44,
51,
-8,
-7,
-4,
8,
7,
44,
41,
-72,
4,
-9,
61,
-22,
-1,
49,
1,
39,
-23,
-21,
-17,
-1,
41,
26,
16,
-4,
-62,
-6,
1,
-12,
43,
-28,
31,
-59,
6,
-70,
-45,
-16,
47,
40,
-24,
82,
-38,
3,
-46,
-14,
-47,
13,
-16,
51,
-37,
1,
-1,
6,
-26,
-6,
-18,
-8,
29,
-73,
19,
-19,
-40,
11,
-6,
22,
-11,
46,
0,
31,
8,
-51,
53,
1,
4,
-10,
-15,
-34,
-30,
31,
-46,
-7,
-16,
19,
-10,
20,
22,
-17,
6,
19,
37,
-19,
-17,
6,
80,
0,
43,
13,
57,
26,
-39,
52,
-32,
-8,
12,
-46,
28,
-21,
-23,
1,
-9,
-13,
35,
51,
3,
-7,
36,
-46,
-24,
7,
45,
6,
12,
4,
4,
-11,
-4,
28,
-12,
-32,
-17,
-6,
-10,
1,
-49,
63,
3,
24,
47,
21,
14,
38,
-12,
-40,
-8,
-34,
10,
-5,
19,
-3,
-7,
6,
48,
-9,
87,
-5,
-10,
-24,
-6,
19,
-11,
0,
27,
0,
21,
23,
9,
-21,
-51,
49,
-24,
-40,
-15,
-12,
-80,
20,
43,
22,
46,
52,
-23,
51,
-7,
-27,
44,
8,
6,
-67,
-52,
-12,
49,
53,
-4,
35,
-21,
19,
61,
15,
-28,
-69,
-4,
-16,
-22,
17,
-8,
-33,
21,
4,
-12,
-15,
12,
8,
-10,
10,
-14,
18,
-13,
28,
-47,
24,
-18,
15,
-32,
13,
33,
-1,
-15,
-59,
39,
46,
-10,
62,
19,
6,
16,
-15,
-10,
12,
-1,
-7,
-6,
26,
-43,
15,
13,
7,
3,
1,
-5,
-16,
-41,
19,
-23,
-60,
42,
0,
-4,
-25,
-28,
-9,
29,
-3,
-50,
36,
8,
-35,
29,
15,
-38,
42,
-13,
56,
1,
3,
5,
-39,
-11,
-10,
29,
19,
20,
5,
44,
37,
-8,
-45,
13,
-14,
4,
38,
-34,
-34,
11,
-68,
4,
5,
-5,
25,
4,
-20,
-16,
-17,
46,
-8,
-22,
4,
-25,
75,
-1,
20,
13,
10,
19,
-16,
-52,
14,
-56,
-9,
29,
-57,
14,
18,
-16,
5,
-44,
37,
-36,
14,
-5,
-16,
52,
-14,
-19,
2,
-6,
20,
14,
-52,
4,
-17,
-8,
-16,
19,
-11,
4,
-77,
13,
-26,
-7,
-30,
-51,
10,
43,
-13,
34,
-41,
43,
-21,
-6,
-26,
14,
36,
-32,
15,
-10,
-53,
-6,
32,
-80,
3,
-22,
1,
30,
-45,
42,
-20,
-5,
-35,
59,
18,
-17,
-3,
2,
8,
-36,
18,
10,
-10,
5,
0,
-27,
20,
40,
2,
13,
-5,
3,
30,
-8,
0,
24,
-55,
-28,
48,
-27,
-38,
19,
-21,
-10,
14,
27,
60,
-1,
-2,
0,
9,
4,
-26,
-2,
24,
-3,
-33,
42,
-18,
31,
-2,
10,
-21,
-2,
55,
4,
20,
57,
12,
-11,
34,
6,
9,
-52,
-77,
-39,
12,
8,
24,
-15,
37,
24,
32,
-34,
-14,
-27,
-9,
-19,
-11,
-29,
24,
36,
-7,
32,
-8,
-15,
3,
19,
16,
-18,
-32,
-53,
17,
-16,
15,
-43,
27,
-31,
44,
13,
33,
-31,
-5,
30,
-22,
-29,
-25,
-4,
-45,
0,
-7,
27,
-8,
34,
22,
5,
-21,
-31,
-18,
1,
1,
0,
43,
0,
-17,
27,
13,
-21,
-69,
43,
-13,
-17,
32,
-7,
11,
-20,
28,
71,
22,
-31,
12,
38,
27,
2,
10,
-26,
51,
-37,
-19,
-50,
-46,
-41,
1,
-59,
8,
-46,
-24,
-20,
-69,
-48,
28,
13,
12,
-12,
2,
-48,
30,
25,
-63,
18,
-10,
-26,
-12,
-14,
-15,
63,
3,
-17,
6,
-41,
-73,
-11,
-44,
-13,
-6,
6,
33,
23,
37,
40,
4,
-11,
-8,
-38,
7,
-25,
28,
55,
0,
-3,
69,
-41,
-10,
-24,
-13,
-3,
-69,
-3,
-60,
1,
-7,
-45,
-28,
28,
48,
33,
45,
7,
-10,
14,
28,
17,
15,
-24,
-12,
-55,
18,
-23,
-57,
-36,
23,
0,
26,
61,
-34,
85,
26,
-17,
0,
14,
20,
30,
36,
9,
5,
43,
-22,
37,
-53,
-16,
-24,
43,
-56,
14,
11,
36,
7,
1,
14,
-41,
21,
45,
12,
-19,
4,
10,
31,
-9,
-18,
5,
-49,
66,
-2,
-33,
-15,
6,
3,
41,
-52,
-38,
23,
4,
16,
-21,
3,
-27,
-16,
-71,
24,
-11,
33,
29,
-14,
15,
78,
-32,
18,
-83,
0,
-35,
-34,
13,
-51,
-16,
-15,
-54,
0,
-32,
36,
2,
9,
20,
10,
19,
-44,
11,
-11,
-1,
40,
-25,
-37,
43,
27,
33,
-14,
-46,
5,
21,
26,
-4,
43,
-50,
13,
-3,
-10,
-17,
-9,
-14,
-12,
-45,
12,
-22,
2,
32,
-29,
-17,
52,
6,
-11,
-19,
-46,
8,
62,
-44,
26,
37,
17,
-8,
5,
4,
25,
-38,
8,
35,
-26,
-4,
38,
-21,
19,
9,
38,
3,
26,
-3,
-16,
-3,
-15,
-14,
-2,
-48,
22,
-5,
-3,
38,
-26,
40,
-50,
3,
-30,
32,
25,
-14,
21,
-23,
-8,
44,
10,
19,
47,
-68,
-8,
-10,
-23,
-47,
5,
-3,
25,
-27,
-39,
-18,
6,
-38,
8,
-22,
-9,
-16,
-9,
1,
26,
26,
-45,
-7,
-17,
-56,
-30,
-44,
-41,
16,
14,
71,
-20,
-84,
11,
-9,
-48,
41,
18,
-29,
-23,
-12,
0,
-23,
-53,
-18,
-23,
-1,
13,
-74,
-25,
32,
-11,
13,
69,
-14,
35,
10,
5,
60,
-8,
13,
-48,
48,
-5,
27,
2,
-2,
30,
72,
-37,
11,
15,
-9,
-10,
11,
-36,
15,
15,
23,
-38,
13,
-41,
-12,
23,
75,
37,
25,
44,
-54,
47,
14,
13,
21,
-7,
24,
51,
1,
48,
-8,
48,
-17,
13,
9,
24,
-63,
-14,
-2,
5,
28,
-61,
-57,
0,
-9,
-7,
-5,
19,
20,
18,
-32,
-9,
-23,
11,
-22,
27,
4,
0,
-32,
-3,
-11,
-16,
-13,
1,
-29,
30,
9,
-23,
-8,
-40,
49,
29,
-8,
5,
-11,
-4,
0,
8,
0,
-10,
60,
26,
-12,
10,
-5,
-24,
-5,
-3,
38,
22,
-18,
18,
-26,
21,
-18,
0,
2,
-12,
13,
38,
53,
4,
-34,
11,
10,
22,
14,
-22,
-20,
-25,
-4,
-18,
-2,
3,
58,
-13,
-16,
4,
-16,
49,
-25,
-8,
-30,
-31,
-3
] |
Montgomery, J.
This is an action of ejectment, has once been considered by this court, and will be found reported in 112 Mich. 474, to which report reference is made for a statement of the main facts. We there construed the deed under which plaintiffs claim as creating an estate for life in Lorainie Spicer, and a fee in the grantees of Lorainie and Ezekiel, subject to a contingent life estate in the heirs of the body of Lorainie. Whether all the plaintiffs áre entitled to take we found it unnecessary to determine. We found that the plaintiffs, or some of them, are owners of a life estate in the premises. It is now contended that under the provisions of section 5533, 2 How. Stat., two of the plaintiffs are precluded from taking a life estate. At the date of the conveyance, two children of Lorainie were living, — Mary Parmelia (now plaintiff Graham), born in 1844, and Diana, who was born in 1847, and died in 1857. The two other plaintiffs are children born to Lorainie after the date of the deed. The statute referred to reads as follows:
“Successive estates for life shall not be limited, unless to persons in being at the creation thereof; and when a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, and, upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estate had been created.”
The language of this statute is clear and unambiguous. Under it the plaintiffs Downing and Smith do not take; neither was in being at the date of the conveyance. See Amory v. Lord, 9 N. Y. 419.
Did the second life estate vest in moieties in the two living children of Lorainie, or was such estate a contingent remainder ? As we held in our former opinion, the word “children” should not be considered a word, of inheritance, but of purchase. The word as used in this deed is designatio personae, and indicates not inheritable succession, but individual acquisition. The policy of the law favors vested estates. 2 Washb. Beal Prop. (5th Ed.) 594 (* 228) et seq. The present capacity of taking effect in possession if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited determines, distinguishes a vested remainder from one that is contingent. Id. True, there is a class of cases where the remainder is regarded as vested, although all the persons to take are not ascertained or in esse; as in case of a devise to a class, as to the children of A. of a remainder upon a life estate to B. If the intent is manifest, though the remainder vest at the death of the testator, yet if, during the continuance of the precedent estate, additional children be born to A., the estate will open, and they will take shares as vested remainders. Id. 599 (* 230). But, under our statute, the conveyance under consideration cannot have this effect, as any attempt to limit a second life estate to persons not in being was futile.
Was a life estate in the whole cast upon Mary Parmelia at the death of Diana? If this be treated as a grant, section 5560, 2 How. Stat., controls. This section provides that all grants and devises of land made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy. The exceptions stated in the next section do not apply to such a grant as is here under consideration. It follows that the estate of Diana terminated at her death, and a life estate in an undivided one:half only remained in Mrs. Graham, one of the plaintiffs.
The declaration, having alleged a right of possession in all three plaintiffs to the undivided three-fourths, is not supported bjr proof of right to an undivided one-half in one of the plaintiffs. Lynch v. Kirby, 36 Mich. 238.
The judgment, which was for the plaintiffs, must be reversed, and a new trial ordered.
The other Justices concurred. | [
-33,
52,
-2,
5,
12,
47,
26,
22,
55,
-4,
-16,
0,
24,
26,
14,
-3,
3,
0,
-68,
-3,
-15,
9,
-60,
-7,
41,
-21,
40,
38,
25,
21,
-33,
-27,
-27,
0,
-1,
46,
13,
-7,
-26,
-6,
3,
10,
63,
-20,
9,
9,
26,
7,
13,
-2,
45,
-19,
13,
4,
-26,
19,
10,
13,
35,
7,
-52,
-11,
-3,
-6,
-47,
9,
16,
29,
-9,
-62,
-17,
22,
-30,
-24,
6,
-9,
-21,
-19,
-7,
-17,
7,
-32,
56,
-40,
-19,
15,
4,
-28,
23,
31,
-10,
13,
-27,
-27,
-38,
9,
77,
32,
-18,
-13,
-5,
-45,
11,
68,
-28,
12,
-1,
-11,
-15,
-33,
-9,
14,
24,
1,
-5,
11,
-11,
-12,
-36,
-2,
3,
-7,
-9,
-37,
41,
-16,
-5,
-15,
12,
44,
-9,
8,
-38,
24,
-23,
14,
-20,
16,
4,
-13,
-14,
0,
3,
-47,
3,
29,
21,
-10,
3,
-31,
-7,
47,
-40,
38,
-13,
-5,
6,
-25,
22,
-27,
37,
-11,
21,
28,
-60,
-37,
-17,
1,
-12,
62,
46,
-23,
-20,
41,
9,
5,
6,
-16,
-34,
17,
19,
29,
19,
5,
23,
-74,
2,
10,
17,
-36,
-30,
-26,
-8,
24,
-41,
78,
11,
-3,
-33,
-21,
-9,
-16,
16,
4,
15,
-21,
54,
-22,
4,
0,
-3,
51,
-43,
-14,
-20,
10,
18,
-41,
-49,
-9,
-8,
-8,
-21,
-34,
-35,
-33,
-10,
5,
-30,
-11,
5,
7,
-13,
63,
0,
-38,
-53,
-1,
-17,
10,
49,
-3,
-13,
-29,
6,
34,
44,
-9,
-1,
23,
2,
3,
-1,
72,
30,
-37,
-14,
3,
1,
-37,
-17,
58,
-81,
-25,
24,
-2,
-7,
-32,
-16,
-21,
12,
14,
32,
16,
31,
-49,
-2,
16,
-19,
6,
14,
37,
10,
-11,
-31,
-4,
-45,
12,
-2,
25,
3,
-16,
7,
1,
-18,
25,
1,
-22,
0,
-7,
32,
9,
20,
-7,
3,
23,
-6,
3,
3,
9,
-14,
33,
-20,
5,
46,
24,
-37,
-11,
58,
30,
27,
10,
24,
-18,
6,
-35,
48,
-37,
-22,
44,
1,
22,
40,
-39,
13,
24,
25,
-56,
-33,
18,
35,
-17,
-12,
-34,
78,
-44,
-10,
-45,
-1,
16,
0,
18,
1,
23,
-25,
-36,
38,
-18,
25,
20,
19,
4,
19,
-41,
-8,
3,
-5,
-35,
33,
-8,
55,
-10,
-11,
6,
-1,
25,
-6,
17,
-30,
31,
0,
-8,
-5,
40,
40,
27,
-40,
-21,
-20,
12,
-36,
-16,
21,
13,
-8,
-13,
-3,
26,
5,
-3,
-23,
33,
-42,
5,
-48,
46,
-13,
58,
-39,
19,
-28,
-13,
36,
-29,
-3,
22,
15,
-29,
34,
34,
3,
-21,
37,
-12,
-51,
-23,
24,
4,
-27,
-38,
-20,
42,
2,
3,
39,
22,
14,
-31,
-12,
60,
-25,
23,
-35,
32,
2,
19,
-43,
-48,
24,
25,
-5,
37,
0,
-59,
30,
-18,
3,
-24,
6,
-16,
44,
0,
42,
24,
5,
-14,
-45,
-13,
34,
-8,
-16,
40,
-9,
11,
51,
44,
-5,
-11,
-25,
24,
42,
8,
-27,
-10,
-19,
0,
13,
-25,
2,
-58,
21,
-62,
45,
-10,
17,
-78,
-19,
-24,
-37,
-37,
42,
29,
41,
-17,
-40,
3,
-54,
-68,
-57,
1,
0,
17,
0,
-3,
-64,
15,
52,
-8,
55,
27,
39,
-35,
-27,
16,
-2,
-10,
21,
35,
17,
-20,
57,
36,
36,
22,
8,
7,
-22,
-13,
-38,
-17,
-41,
58,
-20,
71,
-60,
0,
22,
18,
13,
-17,
-16,
-62,
-26,
44,
22,
-12,
3,
-37,
-17,
-38,
-14,
-34,
14,
-53,
54,
-49,
41,
-43,
-12,
9,
-28,
-36,
-4,
-26,
2,
-19,
52,
-14,
-2,
-26,
-10,
22,
5,
-16,
31,
46,
-30,
21,
-26,
19,
-37,
10,
-19,
-6,
31,
-12,
9,
-39,
-10,
18,
-21,
23,
-5,
-16,
0,
-35,
-34,
-33,
51,
-25,
33,
16,
-46,
-14,
-10,
23,
9,
0,
-4,
-12,
-8,
29,
-22,
-24,
-8,
1,
0,
34,
-5,
22,
45,
17,
-28,
-11,
-15,
36,
13,
5,
35,
-32,
-55,
-8,
-8,
25,
0,
29,
17,
19,
27,
-27,
-56,
1,
-19,
-31,
12,
27,
5,
-17,
7,
-33,
55,
-16,
32,
51,
-13,
2,
15,
8,
-8,
-9,
8,
10,
-26,
48,
7,
25,
22,
61,
18,
58,
-20,
11,
-5,
8,
0,
20,
-23,
-54,
-20,
0,
-16,
-56,
-11,
-1,
-32,
-14,
32,
55,
38,
27,
23,
22,
-17,
34,
-9,
-8,
-25,
63,
32,
-6,
-37,
-26,
32,
-19,
-59,
36,
30,
-8,
10,
-27,
21,
28,
9,
-24,
-19,
27,
42,
-10,
-16,
3,
1,
-3,
-36,
11,
27,
39,
0,
-27,
15,
4,
-35,
40,
-8,
37,
-7,
14,
-11,
-4,
-15,
-20,
11,
0,
23,
-22,
-17,
-42,
0,
28,
12,
-33,
14,
40,
13,
28,
-12,
-34,
-34,
-23,
-38,
-22,
16,
-7,
-38,
-6,
0,
4,
-10,
7,
-13,
-12,
34,
-27,
-5,
-2,
17,
-12,
21,
-26,
-23,
71,
-2,
10,
-13,
23,
-6,
-7,
10,
22,
34,
-24,
-10,
10,
-23,
33,
27,
24,
-20,
5,
-2,
-9,
27,
-48,
-6,
-13,
-81,
20,
-16,
7,
19,
-29,
-7,
1,
-31,
18,
5,
26,
18,
-9,
-22,
15,
30,
-42,
-26,
-10,
-26,
-27,
20,
11,
23,
-62,
-20,
-18,
-50,
6,
19,
58,
26,
2,
-1,
0,
-47,
-81,
40,
12,
-28,
-38,
-26,
-17,
30,
27,
65,
-11,
-4,
-14,
-9,
-24,
18,
28,
13,
29,
-39,
-1,
-50,
9,
5,
-57,
19,
-14,
-10,
30,
-8,
21,
-39,
31,
-31,
47,
48,
-15,
-69,
-19,
32,
28,
-7,
-2,
-32,
24,
-8,
-20,
35,
-65,
-8,
-23,
-10,
-12,
17,
-25,
26,
20,
39,
-15,
24,
-33,
-15,
-51,
-1,
16,
12,
-48,
-14,
12,
31,
-11,
-33,
-4,
-20,
-24,
32,
25,
-58,
-12,
-49,
36,
-30,
-35,
70,
-8,
35,
-16,
-18,
-16,
12,
0,
-28,
31,
0,
1,
30,
-12,
-20,
-9,
-3,
7,
57,
24,
4,
7,
-46,
-37,
-58,
30,
5,
55,
2,
-24,
25,
-55,
29,
-7,
29,
-33,
-13,
-34,
23,
-35,
9,
-37,
72,
-16,
-36,
-46,
-23,
10,
-40,
18,
-8,
10,
25,
-22,
-93,
-49,
12,
26,
19,
14,
-2,
36,
-35,
9,
-17,
-19,
-17,
-1,
19,
12,
-1,
-34,
15,
29,
22,
-22,
-45,
5,
29,
45,
30,
26,
-22,
40,
-1,
15,
55,
-21,
35,
18
] |
Moore, J.
The petitioner was the owner of certain lands in Bay county, which were sold for the taxes of 1893, at a sale made in December, 1895, and were bid in for the State. In April, 1897, the lands were deeded by the State to defendant Hoffman. • The petitioner claims that the court obtained no jurisdiction to make a decree for a sale of the lands, and asks that the sale be set aside and the decree vacated. The petitioner offered to pay the taxes and costs. After a hearing, before the circuit judge, he vacated the decree, and set aside the sale, first requir ing the petitioner to pay the taxes and costs, which were at once paid by her into 'court. From that decree defendants appeal.
A number of questions are raised by the record and argued by counsel. We think one of them disposes of the case. The record shows that the publication of the order, petition, and schedule was made in a supplement to the Bay City Tribune. The order, petition, and schedule made nearly four seven-column pages of that paper. This proceeding was heard before the same judge who made the decree ordering the sale of these lands. The original files in that matter were offered in evidence. The proof of publication was made by the publisher of the paper, and recited “that the order and petition, of which a printed copy is hereto annexed, were published,” etc. Pinned to the affidavit of publication is a slip of paper one column wide and about one-third of a column long, evidently cut out of a newspaper, containing the order of the circuit judge and the petition of the auditor general, but not containing a schedule of the list of lands, which followed this order and notice as published in the paper.
On the part of the defendants, an attempt was made to show by parol that the paper attached to this affidavit contained the schedule containing the list of the lands when it was filed with the clerk of the court. It is conceded that the affidavit was not attached to the notice, petition, and schedule by pasting or in any permanent way, but that whatever paper was attached was simply pinned. The publisher of the paper was sworn as a witness, but his recollection was not at all clear as to the condition of the paper when he filed it. He is not certain that when he swore to the affidavit it was pinned to the order, petition, and schedule, or that the schedule was attached when the paper was filed with the clerk, though he says he presumed at the time it was done right. Neither the clerk nor the prosecuting attorney was sworn as a witness. Mr. 'O’Connor, a dealer in tax titles, was sworn as to an examination made by him of these and other files in March or April, 1897. On his direct examination he testified that at that time the printed list and affidavit of publication were in the files; the affidavit was pinned to the printed list. On his cross-examination he testified:
“I looked over the.list for a number of years. My impression is that the affidavit was pinned to the list of lands to be sold for the taxes of 1893 when I looked at it; in other words, that is simply my recollection. If it had not been there, I should have noticed it, and been a little bit scared of the proceedings. I was more interested in this one than in all the rest combined, but am not willing to put it any stronger than that it is my recollection that the affidavit was pinned to the full list. ”
It is contended that it is not competent to impeach or contradict a record by parol. Without passing upon that question, we are all agreed that, before a record can be added to, contradicted, or impeached, the proof ought to be clear and convincing. It is a somewhat significant fact that the printed slip which was attached to the affidavit did contain a copy of the order made by the circuit judge and a copy of the petition of the auditor general, and it might well be said that a layman would think the attaching of the order and petition would be a sufficient compliance with the requirements of the blank furnished the affiant upon which to make proof of publication, without attaching the schedule. It is conceded that, taking the record as it now stands, it is not sufficient to give the court jurisdiction to make the decree directing the sale. We do not think the evidence is so clear that we ought to find that the record has been mutilated since it was filed.
The decree is affirmed. The petitioner will recover costs of this court
The other Justices concurred. | [
14,
43,
37,
17,
-10,
25,
44,
-8,
16,
44,
22,
-37,
18,
56,
15,
-9,
10,
-7,
23,
-11,
-30,
-38,
-19,
16,
-15,
-31,
-14,
-9,
-42,
-31,
26,
15,
-42,
12,
68,
17,
3,
-13,
42,
19,
-30,
17,
-9,
13,
-22,
-16,
-10,
5,
1,
-26,
14,
-12,
29,
0,
-34,
-11,
-19,
-38,
39,
-21,
-5,
-19,
-13,
0,
-28,
9,
1,
3,
35,
-28,
5,
-12,
49,
-33,
16,
-28,
-24,
-16,
-12,
16,
-18,
-12,
-15,
-48,
-28,
9,
-27,
-39,
61,
-28,
-33,
-4,
-34,
36,
0,
46,
25,
5,
49,
17,
-1,
26,
-61,
34,
19,
3,
-49,
-22,
11,
-15,
23,
-18,
-4,
0,
-25,
-47,
-1,
15,
0,
-44,
2,
-12,
13,
3,
0,
11,
-32,
20,
-2,
5,
-8,
11,
-10,
6,
-1,
8,
-1,
-66,
29,
10,
0,
10,
-10,
-19,
-10,
32,
19,
30,
-7,
13,
-41,
19,
26,
5,
-19,
19,
64,
-11,
-8,
-8,
6,
19,
-6,
-81,
3,
23,
41,
-17,
-8,
-22,
36,
12,
-48,
-18,
-23,
-54,
-18,
8,
0,
14,
8,
2,
-2,
-29,
-22,
-4,
-25,
-23,
22,
-16,
45,
4,
18,
-39,
26,
9,
21,
-9,
13,
-25,
-16,
-54,
32,
11,
2,
10,
13,
30,
-22,
50,
-14,
-44,
-7,
-17,
-13,
-9,
21,
1,
-1,
29,
16,
12,
-3,
-26,
-14,
21,
55,
15,
-4,
0,
-14,
18,
-22,
-2,
-43,
-39,
9,
-15,
-18,
22,
-50,
2,
34,
-14,
21,
28,
25,
-38,
-18,
47,
-10,
30,
-75,
7,
2,
-45,
-18,
-11,
-64,
-1,
0,
52,
-26,
-8,
-35,
-26,
18,
6,
-3,
25,
-22,
22,
20,
20,
-18,
19,
46,
6,
-31,
-24,
48,
-6,
39,
45,
-29,
33,
11,
29,
34,
41,
-27,
20,
-36,
35,
29,
13,
42,
-19,
36,
-36,
-5,
-38,
35,
-29,
3,
-23,
15,
-44,
-20,
-21,
76,
37,
-36,
13,
21,
13,
6,
-42,
33,
-7,
33,
39,
-34,
-16,
31,
27,
60,
-33,
-12,
29,
7,
7,
-14,
-22,
-20,
33,
-4,
-24,
-33,
-11,
18,
10,
3,
46,
21,
6,
-14,
-20,
2,
-39,
-29,
9,
-22,
15,
-41,
-29,
-13,
-39,
-24,
25,
10,
40,
31,
17,
-6,
-4,
-40,
-12,
30,
-17,
8,
-4,
-23,
12,
-2,
-2,
17,
1,
27,
16,
-19,
-15,
10,
21,
45,
-3,
63,
-27,
-3,
-49,
-30,
-24,
-20,
28,
-11,
-21,
4,
-21,
-38,
30,
10,
30,
12,
36,
-59,
5,
13,
19,
18,
51,
47,
-24,
21,
0,
0,
-6,
-2,
-18,
73,
2,
20,
4,
-15,
-18,
16,
-25,
-12,
28,
30,
15,
-42,
25,
54,
-36,
4,
14,
-54,
2,
-28,
12,
1,
56,
1,
7,
-50,
-23,
-24,
7,
-4,
17,
1,
11,
-48,
17,
-37,
1,
57,
-26,
29,
-50,
-22,
17,
14,
19,
-7,
26,
-15,
6,
-15,
4,
-25,
56,
23,
-40,
-59,
34,
2,
-27,
14,
22,
-3,
-22,
-44,
-32,
-29,
-16,
2,
13,
-43,
-43,
24,
-21,
1,
2,
-31,
5,
-38,
-36,
38,
61,
29,
32,
-6,
9,
-20,
5,
53,
22,
8,
-3,
0,
-53,
3,
-1,
-6,
9,
22,
-22,
-3,
13,
-11,
-23,
-39,
-15,
38,
32,
49,
20,
26,
-21,
-11,
-15,
-36,
33,
-25,
-28,
3,
16,
-32,
23,
-15,
31,
55,
50,
-9,
32,
15,
-27,
8,
-5,
10,
-14,
-74,
-28,
-44,
31,
-21,
-40,
0,
-42,
-25,
-15,
-4,
-23,
43,
-26,
19,
-12,
-38,
31,
2,
-70,
26,
-35,
8,
14,
-1,
-25,
20,
58,
-64,
-43,
-38,
1,
45,
-9,
3,
30,
2,
-19,
-7,
4,
-44,
-12,
-14,
0,
-16,
-2,
35,
-46,
26,
5,
-33,
-24,
-11,
-10,
8,
22,
-41,
-15,
-3,
-5,
-13,
60,
36,
51,
24,
-37,
2,
20,
-20,
13,
-10,
11,
55,
-26,
-7,
2,
2,
-3,
19,
15,
-31,
41,
-7,
1,
-16,
5,
7,
-48,
13,
44,
-75,
-7,
52,
1,
-4,
-21,
33,
-18,
14,
11,
0,
25,
-8,
-33,
-14,
-23,
21,
41,
45,
-34,
-22,
10,
41,
4,
36,
0,
20,
-2,
-1,
-26,
5,
-39,
-23,
-45,
10,
45,
26,
51,
31,
22,
-12,
12,
-15,
-30,
-1,
53,
-25,
35,
-15,
-5,
49,
85,
-21,
0,
-28,
-15,
37,
0,
-32,
27,
-19,
34,
0,
13,
11,
-14,
6,
-17,
-56,
8,
36,
11,
-11,
17,
21,
-22,
6,
-21,
19,
-32,
32,
-2,
35,
21,
55,
62,
37,
-13,
31,
54,
-39,
-8,
21,
31,
13,
-26,
-27,
14,
21,
-50,
-56,
-28,
16,
16,
41,
0,
-52,
31,
5,
-6,
27,
68,
6,
-16,
-17,
-10,
-11,
-15,
-19,
-3,
12,
-4,
-8,
4,
-8,
-40,
28,
21,
-22,
-25,
-54,
-30,
18,
12,
21,
-3,
39,
-48,
-48,
-51,
-45,
-34,
5,
-32,
10,
-13,
15,
1,
-52,
-19,
4,
20,
-35,
7,
-3,
-1,
-53,
8,
-12,
-23,
-16,
-20,
-2,
17,
-44,
19,
-43,
32,
13,
14,
-39,
-52,
-28,
-66,
-24,
16,
-30,
-10,
-4,
-27,
15,
10,
15,
-26,
35,
29,
-1,
-23,
39,
-21,
-34,
14,
35,
-14,
-4,
42,
-38,
9,
-22,
-45,
32,
-36,
10,
-24,
-46,
61,
-18,
3,
-35,
-6,
-2,
26,
-48,
-58,
23,
0,
3,
-21,
28,
-6,
22,
-13,
-10,
31,
6,
5,
55,
11,
-28,
-22,
3,
16,
30,
-13,
-18,
15,
-12,
-3,
7,
-4,
-10,
30,
-19,
7,
55,
-25,
-18,
-12,
-3,
-71,
10,
7,
-9,
10,
46,
-27,
-35,
0,
10,
20,
59,
3,
17,
-37,
-18,
-16,
40,
10,
17,
-18,
-24,
-47,
-36,
-33,
2,
-26,
-11,
20,
45,
38,
-36,
22,
-19,
6,
22,
26,
4,
46,
16,
1,
-15,
8,
-7,
0,
35,
-54,
23,
38,
-33,
-22,
-20,
-29,
-29,
-16,
-15,
-13,
-15,
15,
-32,
28,
34,
32,
-29,
-21,
-62,
-20,
-39,
-9,
-6,
28,
-19,
37,
12,
-11,
12,
-16,
-25,
1,
40,
-29,
-12,
41,
13,
0,
4,
11,
22,
45,
16,
-28,
-32,
25,
56,
2,
67,
-22,
-34,
-39,
48,
25,
38,
4,
-20,
-11,
-37,
0,
-68,
-17,
8,
-5,
13,
20,
28,
-52,
7,
41,
10,
1,
-51,
-14,
63,
-9,
-37,
32,
-14,
-3,
27,
-8,
4,
23,
-15,
18
] |
Long, J.
This is an action of ejectment. The cause was tried before the court without a jury, and findings of fact and law made. The claim of the plaintiff is that in March, 1885, the title to the land rested in Ann Wheel-. ock, who died intestate March 12, 1885, leaving surviving her seven children; that at that time the plaintiff was 9 years of age, and, as heir at law, entitled to one-seventh interest in the land. She is now 21 years old, and asserts her title to the seventh interest. On the part of the defendants it is claimed that the premises were sold in 1886, at administrator’s sale, to William Wheelock, and by him deeded to defendants in 1887. They have been in possession of the premises since that time. It appears from the findings of the court below that all the proceedings for the appointment of an administrator were regular; that a petition was made by the administrator for the sale of the premises, and the order granted; that the sale was made October 4, 1886, for $531; that Mary Ann Clark was the duly-appointed guardian of the plaintiff, having given the requisite guardian’s bond; that, after the sale of the premises, the probate court made an order of distribution of the estate, and the administrator paid over to the plaintiff’s guardian the share of the estate belonging to her!
The court found, as matter of law, that all the proceedings being regular, and the guardian of the plaintiff having received the plaintiff’s share of the proceeds of the sale of the premises, the plaintiff could not recover. In this we think the court was not in error. The petition for the sale set forth that “the condition and location of the premises is such that they cannot be partitioned and distributed among the heirs without great injury to the same, * * * and that it is necessary, and for the interest of the persons interested, that the same be sold for the purpose of distribution.” It is provided, among other things, by section 6050, 3 How. Stat., that: >
“When a person shall die intestate, and it shall be shown to the satisfaction of the probate judge having jurisdiction of the case that it is necessary, or for the interest of the persons interested in the estate of such intestate, to sell the real estate of such intestate person for the purposes of distribution, the administrator may be licensed to sell the real estate of such person in the same manner and upon the same terms and conditions as ,are prescribed in said chapter in the case of a sale for the payment of debts.”
.Mrs. Ann Wheelock died intestate. The petition for sale was in form a sufficient compliance with this statute to give the probate court jurisdiction to order the sale. The order of confirmation was duly entered after the sale, and the probate court, under section 6045, 3 How. Stat., was authorized to enter it if it were found that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or, if disproportionate, that a greater sum could not be obtained. It must be presumed that these facts were ascertained by the probate court before the order of confirmation. Such deeds are prima facie evidence of the regularity of the proceedings required by law anterior to the making thereof, and of the authority of the administrator to execute the same. 2 How. Stat. § 5678. We find nothing in this record showing that the sale was not fairly conducted, or that the amount bid was disproportionate to the value, even if that question were an open one in this collateral attack. It is true, as claimed, that no guardian ad litem was appointed for the plaintiff prior to this sale; but she had a general guardian, who acted for her, and who, under section 6323, 2 How Stat., was fully authorized to do so, where no other guardian was appointed. Such general guardian may join in and assent to a partition of the estate, by virtue of section 6325. It was found to be for the best interests of the parties that the estate should be sold, instead of partitioned, and the order was so made. The guardian acquiesced in this, and accepted for the ward her share of the proceeds. The ward is not now in a position, as shown by this record, to assert title to the lands. The defendants were purchasers in good faith, and had a right to rely upon the order confirming the sale. Averill v. Jackson City Bank, 114 Mich. 20.
Some question is raised upon the requests for further findings in the case, and the exceptions to the refusal. We find nothing in that question calling for discussion.
The judgment is affirmed.
The other Justices concurred. | [
-1,
41,
-18,
-18,
19,
-11,
51,
21,
28,
38,
39,
-5,
66,
-1,
-7,
11,
21,
45,
-19,
9,
26,
6,
-114,
1,
30,
-22,
44,
13,
-7,
17,
-5,
-31,
-21,
7,
16,
55,
15,
-42,
16,
-9,
16,
20,
25,
37,
10,
22,
-8,
-33,
50,
10,
-4,
22,
-12,
1,
15,
-28,
-2,
-3,
-8,
36,
11,
-38,
-22,
-41,
25,
60,
-16,
-17,
-6,
-55,
-2,
-9,
-39,
5,
33,
7,
10,
7,
-14,
25,
-7,
-60,
35,
-48,
-14,
1,
-49,
-37,
-34,
-44,
-22,
3,
-1,
29,
-29,
37,
32,
-10,
11,
-6,
16,
-48,
-24,
21,
1,
-28,
-55,
-20,
21,
-37,
12,
-16,
48,
-30,
-2,
21,
-6,
-14,
-30,
-7,
40,
-29,
21,
-25,
14,
37,
-40,
47,
15,
-34,
26,
-13,
-29,
-7,
8,
21,
-23,
-13,
24,
-57,
-25,
14,
-17,
-30,
-15,
0,
-25,
2,
-12,
-26,
-45,
16,
-13,
19,
28,
-13,
42,
25,
0,
-2,
0,
-27,
19,
-57,
-30,
-30,
-5,
-21,
-11,
28,
39,
-12,
-6,
-1,
25,
11,
52,
-23,
-48,
6,
2,
0,
29,
-12,
-11,
-76,
-40,
-23,
-3,
4,
-6,
-14,
50,
3,
-21,
12,
14,
19,
-7,
-8,
-20,
-23,
-3,
13,
13,
10,
-23,
12,
0,
-35,
-20,
30,
-1,
-40,
-28,
-18,
-1,
-33,
-59,
-23,
37,
31,
16,
33,
2,
-53,
11,
-47,
-22,
26,
17,
-21,
1,
12,
-6,
-33,
-26,
37,
-37,
2,
44,
28,
-19,
-13,
-11,
-2,
5,
31,
-2,
17,
13,
9,
-33,
56,
27,
12,
-1,
4,
-14,
-29,
13,
36,
-26,
-7,
14,
-23,
23,
-6,
-29,
-6,
-24,
7,
40,
-1,
-37,
-52,
-6,
4,
5,
-55,
46,
-15,
29,
-9,
-44,
12,
-27,
13,
-34,
29,
-21,
15,
-3,
-9,
-17,
29,
-3,
48,
52,
-31,
-24,
29,
34,
12,
33,
16,
2,
-20,
-7,
-23,
24,
5,
29,
7,
16,
42,
-34,
-34,
27,
-16,
42,
-10,
-37,
23,
52,
18,
41,
-86,
-31,
42,
5,
-23,
9,
-36,
14,
6,
-6,
6,
-79,
-14,
55,
0,
12,
-18,
30,
-9,
-4,
-46,
27,
-6,
-8,
-13,
9,
48,
8,
-73,
-16,
-8,
-22,
0,
31,
6,
58,
-20,
2,
-1,
-4,
-57,
52,
-5,
30,
40,
-17,
-4,
-4,
-39,
-7,
-8,
7,
16,
9,
-26,
29,
65,
52,
6,
-30,
-27,
1,
10,
-7,
-10,
7,
13,
-3,
3,
-6,
0,
-35,
-30,
-21,
36,
-8,
-45,
-57,
-10,
-23,
1,
7,
44,
8,
-4,
63,
-10,
0,
-9,
13,
-35,
41,
22,
4,
-15,
21,
-8,
-13,
-18,
4,
5,
-3,
-28,
-18,
44,
8,
20,
21,
-3,
-42,
42,
-30,
45,
16,
-5,
-2,
45,
5,
25,
-1,
-12,
17,
21,
12,
42,
-3,
7,
12,
11,
50,
-13,
0,
-13,
49,
-6,
37,
26,
14,
-24,
-30,
-18,
40,
4,
-48,
18,
15,
-35,
28,
12,
-11,
31,
5,
-1,
29,
-2,
21,
12,
0,
-22,
-29,
17,
25,
-32,
51,
-18,
0,
-4,
-14,
-50,
-3,
6,
0,
-26,
45,
0,
35,
9,
-22,
-49,
-39,
0,
8,
24,
-5,
-20,
0,
21,
14,
40,
29,
-23,
27,
34,
52,
-18,
-52,
3,
6,
-6,
31,
4,
26,
-9,
-4,
-47,
-30,
-12,
-13,
-45,
-8,
-16,
11,
-1,
-42,
10,
47,
70,
-42,
64,
71,
-6,
4,
-21,
-26,
-22,
-5,
42,
10,
32,
7,
-37,
30,
14,
-29,
19,
15,
-47,
51,
-87,
0,
-68,
-5,
29,
10,
-10,
42,
-31,
-37,
-32,
10,
26,
25,
-1,
1,
-10,
34,
-63,
-23,
-13,
-4,
29,
-1,
12,
11,
31,
12,
-20,
-5,
-46,
6,
-7,
-34,
-18,
-37,
-9,
-25,
-12,
-8,
4,
6,
-10,
-19,
-57,
21,
3,
-7,
22,
21,
52,
36,
2,
31,
-12,
7,
21,
-2,
-23,
3,
0,
-21,
12,
-40,
21,
-14,
-55,
-27,
8,
-43,
-2,
-24,
0,
-19,
-47,
-53,
33,
-6,
23,
-31,
25,
13,
-52,
7,
3,
-37,
36,
12,
-22,
18,
-36,
-8,
-20,
27,
-29,
3,
3,
-5,
-18,
-15,
19,
37,
-8,
-33,
0,
23,
36,
12,
16,
-39,
34,
35,
6,
10,
15,
21,
-3,
61,
4,
25,
1,
5,
20,
2,
14,
26,
-17,
3,
15,
-19,
30,
11,
0,
42,
5,
24,
7,
18,
50,
-36,
10,
-2,
-1,
-47,
-74,
-26,
9,
43,
-47,
7,
-11,
-16,
-27,
7,
-19,
30,
-29,
-4,
-85,
7,
12,
55,
13,
-16,
-51,
32,
-10,
-29,
-26,
-39,
22,
-20,
-16,
16,
-57,
-13,
1,
-31,
29,
9,
16,
-15,
-1,
-13,
-11,
8,
39,
33,
23,
3,
-53,
-16,
16,
-5,
-22,
-16,
0,
-47,
25,
-16,
14,
-26,
-13,
4,
-8,
2,
9,
-35,
-22,
40,
10,
11,
18,
28,
-21,
7,
-29,
-28,
6,
-14,
-54,
3,
-5,
38,
12,
7,
15,
-21,
2,
-92,
12,
-28,
-27,
-5,
-39,
11,
15,
-29,
0,
-9,
-16,
-29,
46,
-49,
-3,
-1,
-44,
-20,
-45,
-82,
-12,
22,
29,
-14,
-3,
-2,
-26,
1,
2,
-1,
16,
39,
31,
-15,
51,
-16,
-43,
5,
-1,
42,
-3,
6,
31,
37,
-5,
-33,
-4,
29,
22,
-2,
-4,
6,
-2,
18,
6,
-1,
-25,
-10,
-19,
-43,
-80,
-10,
-26,
50,
9,
55,
21,
0,
-7,
4,
-16,
-8,
39,
27,
3,
-11,
0,
-32,
-8,
-10,
19,
1,
-30,
13,
34,
10,
24,
-30,
59,
8,
38,
36,
-49,
-16,
43,
3,
-18,
-14,
-2,
-14,
1,
51,
24,
30,
-8,
-36,
12,
-4,
-62,
9,
9,
14,
8,
53,
-12,
45,
-14,
-57,
-41,
-4,
32,
3,
-13,
-45,
6,
12,
0,
-54,
-15,
0,
-39,
44,
-9,
-25,
43,
-28,
-13,
-42,
-7,
13,
-27,
-5,
-36,
-7,
-34,
22,
-2,
12,
39,
4,
35,
37,
15,
37,
-6,
-18,
-1,
69,
3,
-16,
0,
-28,
-25,
-49,
32,
-35,
32,
10,
-5,
81,
4,
7,
48,
-17,
-2,
-18,
-65,
17,
-17,
47,
-10,
39,
-7,
-44,
1,
33,
-40,
-30,
16,
-30,
6,
18,
-10,
-27,
-15,
11,
13,
33,
4,
8,
40,
-32,
18,
-6,
-37,
44,
-33,
16,
18,
13,
-49,
38,
14,
-13,
-49,
-56,
-34,
49,
30,
-71,
25,
26,
33,
-11,
15,
12,
2,
1,
-9
] |
Grant, C. J.
{after stating the facts). The court instructed the jury that Anderson was not agent for defendants, but that he was the agent for plaintiff, and, if they found that the potatoes were merchantable when delivered to the carrier at New Orleans, plaintiff was entitled to recover, but, if they were not merchantable, they should find for the defendants. The testimony was in direct conflict.
Error is assigned upon the failure of the court to instruct the jury that “merchantable” means “specially inferior to the best or the selected quality, but sufficiently good for ordinary purposes; that it means more than salable for any price; and that defendants, in ordering the potatoes, had ordered that a careful selection be made.” No such request was made to the court, nor does it appear from the record that any such point was made. It cannot, therefore, be considered by us. The case was evidently tried upon the theory shown in the court’s instructions.
Error is also assigned upon remarks of counsel for plaintiff to the jury. The record does not show any objection or exception, or what the remarks were, or that .the attention of the court was called to them. The objection was made afterwards upon a motion for a new trial, in the denial of which we concur.
Judgment affirmed.
The other Justices concurred. | [
-2,
15,
-9,
-16,
-47,
-50,
60,
35,
-29,
55,
27,
-17,
42,
28,
-27,
-52,
-9,
16,
3,
-38,
52,
-44,
-69,
73,
-57,
-18,
16,
20,
-21,
55,
21,
21,
20,
-17,
-11,
55,
20,
39,
0,
-45,
33,
-13,
-4,
45,
-30,
8,
-8,
-44,
32,
-5,
42,
-8,
38,
18,
-33,
-2,
2,
-4,
-53,
-29,
28,
-35,
18,
-31,
1,
-68,
-33,
17,
-43,
14,
-36,
32,
15,
-64,
2,
-25,
-19,
4,
-52,
6,
9,
28,
61,
-15,
25,
39,
54,
-40,
28,
-35,
-43,
-38,
-24,
-17,
30,
2,
64,
34,
-5,
-2,
26,
-6,
2,
-16,
16,
33,
-23,
26,
7,
55,
85,
34,
-10,
-25,
-53,
32,
-17,
24,
-53,
-36,
-9,
25,
10,
-4,
-10,
-58,
17,
-23,
6,
2,
33,
-14,
-27,
38,
-24,
19,
-43,
-4,
3,
31,
35,
23,
-38,
0,
-14,
-20,
12,
22,
-48,
-21,
-17,
-54,
-17,
-3,
-21,
18,
35,
-28,
48,
-33,
38,
24,
21,
-25,
30,
4,
-34,
-53,
-38,
-12,
9,
0,
4,
11,
28,
34,
-16,
-63,
-10,
-30,
-32,
1,
-26,
-18,
5,
15,
2,
29,
-33,
-40,
-25,
-28,
-32,
-4,
2,
23,
-1,
10,
45,
-4,
0,
25,
-6,
18,
48,
9,
-9,
12,
-1,
35,
-34,
-15,
-48,
-26,
1,
-6,
-36,
-7,
-16,
-6,
-18,
10,
9,
36,
-40,
-61,
18,
-7,
-51,
0,
-49,
33,
-54,
-22,
63,
-51,
29,
-9,
23,
8,
10,
-6,
-46,
-61,
-2,
18,
6,
-3,
-22,
17,
13,
19,
20,
40,
-38,
-86,
3,
21,
-76,
25,
23,
25,
-28,
-2,
-21,
0,
-54,
19,
21,
50,
-27,
-42,
-1,
11,
-5,
-22,
-41,
8,
9,
27,
0,
-17,
16,
1,
-33,
-41,
-2,
25,
7,
41,
69,
-29,
31,
-13,
75,
24,
26,
5,
-18,
-23,
-13,
14,
-40,
-9,
38,
-2,
11,
-7,
-9,
-19,
-1,
-20,
-13,
-31,
-31,
-2,
1,
10,
-5,
-38,
-51,
11,
26,
-41,
11,
-9,
11,
-50,
11,
-33,
13,
32,
22,
-49,
16,
14,
18,
7,
8,
24,
19,
-8,
-37,
-47,
6,
12,
9,
-33,
5,
11,
8,
-1,
24,
16,
46,
19,
16,
0,
0,
5,
41,
-26,
9,
-27,
9,
20,
22,
15,
-14,
15,
-19,
-29,
-37,
2,
-38,
2,
34,
-17,
-9,
11,
29,
34,
-2,
-75,
17,
5,
-24,
3,
-33,
39,
-33,
-15,
-6,
0,
17,
25,
0,
-21,
-14,
10,
7,
23,
23,
-27,
-35,
15,
-25,
-28,
12,
-6,
-15,
-19,
24,
-23,
20,
-4,
65,
-27,
45,
-25,
45,
-33,
12,
-14,
20,
-27,
39,
49,
-14,
-1,
-26,
-15,
21,
-62,
17,
-25,
-16,
-27,
18,
31,
-25,
19,
-48,
25,
-20,
27,
4,
26,
-32,
0,
23,
11,
12,
22,
37,
50,
36,
-45,
-9,
-20,
54,
-18,
-33,
8,
-23,
-32,
0,
-47,
13,
-13,
-12,
38,
92,
19,
-14,
25,
2,
11,
24,
26,
-5,
16,
40,
-15,
-5,
-13,
1,
43,
-64,
-25,
-11,
3,
-14,
-13,
-43,
-13,
52,
-17,
-11,
-36,
-32,
-7,
-24,
15,
3,
15,
5,
-29,
88,
38,
-41,
-4,
20,
-1,
5,
-46,
-2,
57,
-28,
-2,
-18,
-22,
-79,
-11,
2,
27,
1,
28,
14,
-21,
25,
6,
-26,
-43,
0,
-33,
-4,
-29,
67,
-27,
-18,
25,
22,
10,
-9,
3,
-31,
-14,
-14,
-6,
30,
21,
22,
0,
-25,
33,
-36,
44,
-33,
-29,
-29,
63,
-26,
13,
54,
18,
71,
-5,
97,
5,
10,
-63,
3,
22,
-28,
-67,
-8,
2,
0,
-8,
-49,
10,
2,
-64,
-24,
25,
19,
7,
-34,
-5,
-12,
2,
14,
-40,
-19,
-5,
3,
-18,
28,
55,
-5,
-18,
-29,
17,
55,
-33,
3,
28,
-13,
-36,
1,
31,
31,
11,
28,
12,
-20,
-43,
-70,
20,
-18,
10,
-15,
-83,
3,
4,
-16,
-16,
-5,
-34,
11,
-23,
1,
-1,
-67,
95,
-14,
31,
-47,
0,
43,
-24,
19,
-1,
35,
20,
17,
21,
17,
-19,
18,
12,
-11,
-2,
0,
28,
8,
-15,
-26,
0,
3,
-21,
-2,
7,
24,
57,
20,
5,
18,
-23,
-3,
-43,
-9,
-12,
37,
5,
5,
36,
-13,
-12,
0,
-29,
9,
-24,
-16,
13,
-7,
-2,
11,
11,
-45,
-14,
11,
-1,
13,
-9,
63,
35,
-17,
-59,
44,
-12,
-60,
2,
-5,
5,
-28,
3,
26,
-19,
1,
48,
-18,
-11,
14,
-16,
3,
23,
-35,
-16,
4,
-5,
35,
11,
-46,
-18,
-20,
29,
10,
45,
-21,
-54,
33,
13,
39,
40,
9,
-26,
18,
-47,
-33,
67,
12,
19,
-46,
2,
30,
-25,
-19,
28,
23,
-10,
-22,
-14,
-87,
11,
-26,
65,
-16,
-74,
7,
49,
-53,
-32,
-32,
11,
30,
-7,
-6,
28,
-7,
-64,
11,
34,
-39,
42,
66,
11,
33,
-19,
-49,
19,
30,
38,
24,
-11,
15,
-22,
-11,
58,
48,
35,
-17,
30,
-2,
-21,
-33,
24,
0,
-9,
-23,
-28,
-5,
28,
13,
37,
5,
16,
14,
-50,
-1,
5,
8,
-5,
17,
15,
-30,
-5,
16,
16,
28,
-30,
18,
-28,
-20,
-3,
-13,
-8,
-15,
2,
6,
-2,
-13,
30,
1,
20,
-8,
16,
-23,
10,
11,
11,
10,
65,
26,
-13,
-61,
24,
-43,
-35,
27,
-57,
20,
21,
17,
47,
-8,
-10,
56,
66,
12,
-15,
-10,
-41,
1,
9,
19,
-60,
-14,
-24,
-8,
54,
25,
6,
-1,
33,
-41,
-7,
13,
-38,
12,
-10,
-69,
19,
46,
-22,
-35,
-20,
12,
17,
13,
29,
-40,
72,
29,
-32,
-8,
-42,
63,
24,
-5,
5,
-21,
-27,
-6,
-33,
-10,
51,
10,
-17,
21,
-18,
26,
-23,
-5,
50,
19,
-13,
23,
-13,
14,
18,
-37,
-2,
39,
-29,
-10,
4,
-7,
16,
-11,
35,
24,
-34,
7,
19,
-3,
-35,
-67,
2,
-25,
1,
23,
16,
-68,
-31,
-31,
62,
-15,
2,
-7,
-15,
-25,
9,
8,
-6,
-64,
11,
-8,
27,
-49,
36,
-6,
-1,
42,
75,
22,
-24,
-60,
-12,
29,
-18,
42,
4,
28,
-33,
24,
-28,
-13,
0,
-7,
-34,
-64,
15,
61,
-16,
-40,
-14,
-28,
3,
18,
-26,
16,
5,
7,
2,
-48,
62,
-23,
-27,
25,
23,
-9,
7,
-19,
2,
55,
26,
-21,
-38,
-22,
-21,
44,
15,
7,
-1,
31,
-7,
-5,
-32,
17,
8,
36,
34
] |
Montgomery, J.
Plaintiffs sought to reach by garnishee process a sum due the principal defendant as beneficiary named in a benefit certificate issued to Electa Buzzard. The garnishee defendant disclosed that, “at the time of the issue and service of the writ of garnishment, it was contingently, liable to the said defendant John Buz zard or his assignee for the sum of $950, notice having been served on the said garnishee defendant of the assignment of said claim to W. E. Leonard, of Port Huron, Michigan.” The proceeding originated in justice’s court, where judgment passed for the garnishee defendant. Plaintiffs appealed to the circuit court, where judgment also passed for the defendant. The case is brought to this court by writ of error.
The record contains no findings of fact or law except as embodied in the judgment, and the'finding there is that the defendant “had no property, money, goods, chattels, credits, or effects in its possession, not exempt from execution under the laws of this State, belonging to the said principal defendant, at the time of the service on it of the writ of garnishment in this case.” It is obvious that the record does not affirmatively show that the plaintiffs were entitled to judgment. Indeed, it does not appear what the evidence adduced at the trial at the circuit was.
As this court cannot assume error, we might well affirm the judgment without further comment;- but, as both counsel have treated the case as involving the constitutionality of Act No. 119, Pub. Acts 1893, we will consider the question raised. Section 15 of the act in question provides that—
“ The money or other benefit * * * to be paid, provided, or rendered by any association authorized to do business under this act shall not be liable to attachment by trustee, garnishee, or other process, and shall not be seized, taken, appropriated, or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of a certificate holder, or of any beneficiary named in a certificate, or of any person who may have any right thereunder.”
It is claimed that the title of the act does not cover this provision, or, if it does, that the title should be held double, and that, in either view, this provision of the act is inimical to the provision of article 4, § 20, of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title. The title to the act in question is:
“An act to define what shall constitute fraternal beneficiary societies, orders, or associations; to provide for their incorporation, and the regulation of their business, and for the punishment for violation of the provisions of the act of their incorporation; and to repeal all existing acts inconsistent therewith.”
The question of duality of the title is to be determined by reference to the title itself. This title all relates to one general subject, — the incorporation and conduct of the business of fraternal benefit societies. This general subject necessarily, or at least very properly, includes a definition of what constitutes benefit societies, within the meaning of the act, and penalties for the violation of its provisions. An act is not unconstitutional whose title expresses,, and whose provisions are limited to, one general subject. Bissell v. Heath, 98 Mich. 472; People v. Hurlbut, 24 Mich. 57 (9 Am. Rep. 103).
Is the provision as to the exemption so far germane to the subject as to bring it within the title to this act ? The provision relates to what shall be furnished by way of benefit. It is akin to other provisions of the act, which prescribe who may be named as beneficiaries, and is in keeping with the general purpose of the act, and accords with the general policy of such associations. We think the title sufficient to challenge the attention of the legislators to this provision. See Connecticut Mutual Life Ins. Co. v. State Treasurer, 31 Mich. 17; Hall v. Slaybaugh, 69 Mich. 485; People v. State Ins. Co., 19 Mich. 398; Hall v. Judge of Superior Court of Grand Rapids, 88 Mich. 438; Van Husan v. Heames, 96 Mich. 506; Tillotson v. Saginaw Circuit Judge, 97 Mich. 585.
The judgment of the court below will be affirmed, with costs.
The other Justices concurred. | [
7,
0,
14,
34,
-17,
0,
48,
-7,
-2,
6,
-35,
-43,
11,
72,
28,
-40,
-2,
-11,
-23,
6,
-19,
-24,
6,
0,
36,
24,
48,
5,
40,
-3,
-48,
10,
-13,
60,
-22,
-52,
-33,
-33,
-10,
5,
-27,
20,
-13,
40,
-26,
5,
-20,
-32,
30,
-54,
-43,
-40,
-27,
14,
-11,
1,
0,
-53,
-39,
0,
-31,
-16,
50,
-35,
-19,
24,
-23,
10,
-13,
-43,
12,
43,
13,
-4,
-25,
-55,
-3,
-48,
8,
20,
-23,
-41,
-17,
-8,
-1,
-2,
-1,
11,
-11,
10,
-63,
19,
-40,
-6,
-8,
37,
-4,
-10,
15,
54,
-16,
-4,
-2,
21,
26,
-5,
14,
-75,
-39,
28,
18,
-9,
37,
-41,
-34,
-47,
-19,
-7,
-4,
1,
24,
-8,
20,
10,
-3,
11,
-41,
-13,
9,
58,
62,
5,
-30,
-3,
6,
25,
-28,
-12,
38,
-2,
37,
-39,
-35,
-41,
12,
21,
50,
1,
-11,
-45,
-13,
22,
-18,
9,
20,
35,
7,
-41,
6,
-15,
29,
-11,
20,
16,
-2,
-51,
-6,
5,
32,
11,
19,
1,
-7,
10,
23,
6,
25,
-70,
-1,
4,
-9,
68,
0,
15,
8,
-7,
-23,
-18,
-2,
14,
19,
-5,
-49,
26,
-35,
52,
73,
-45,
-31,
5,
48,
-36,
28,
26,
9,
-17,
43,
-53,
-5,
23,
-17,
19,
21,
-32,
-41,
9,
38,
-39,
9,
3,
-36,
68,
-27,
5,
-18,
-15,
-11,
-14,
5,
18,
1,
-7,
23,
51,
7,
13,
-35,
18,
1,
-5,
-19,
30,
-16,
-52,
49,
0,
-14,
-9,
-24,
37,
-24,
38,
-9,
7,
26,
-63,
23,
-26,
1,
-39,
-17,
48,
-12,
-37,
-2,
-59,
54,
-2,
-44,
-22,
-20,
-25,
7,
28,
49,
-41,
-28,
30,
-14,
-18,
-6,
-7,
-36,
-10,
-11,
6,
-46,
13,
23,
30,
11,
21,
2,
3,
-17,
32,
0,
-31,
55,
50,
-17,
16,
50,
22,
-8,
9,
6,
-29,
-24,
-49,
-7,
12,
-12,
-16,
52,
11,
-37,
20,
26,
-16,
36,
23,
0,
-1,
52,
-20,
-1,
-5,
-26,
10,
38,
-46,
40,
-2,
26,
-48,
48,
-29,
-22,
-3,
-10,
-4,
26,
-15,
1,
13,
-7,
-5,
8,
22,
-46,
39,
8,
31,
67,
-3,
22,
19,
-27,
69,
-19,
21,
19,
-28,
35,
12,
-31,
9,
1,
24,
-26,
25,
-11,
-25,
-50,
8,
10,
-30,
-5,
68,
-30,
-16,
7,
9,
-18,
-27,
-41,
1,
-18,
6,
-36,
-4,
-7,
32,
34,
-53,
-23,
-61,
-28,
36,
-10,
36,
37,
-3,
-52,
43,
-34,
-35,
-11,
-16,
-7,
0,
1,
6,
-28,
-1,
19,
12,
26,
-46,
39,
-14,
-10,
-33,
3,
-44,
62,
-2,
9,
0,
-11,
52,
14,
-7,
0,
17,
-39,
0,
-4,
-13,
49,
33,
-17,
10,
32,
-14,
23,
-10,
4,
15,
38,
-55,
-22,
41,
-5,
-4,
14,
-15,
4,
-8,
-3,
-10,
34,
24,
12,
-11,
-14,
1,
20,
-6,
-26,
6,
-42,
13,
-52,
12,
20,
17,
17,
18,
7,
33,
14,
-25,
-51,
10,
28,
-16,
-24,
-10,
24,
-20,
28,
-9,
29,
-39,
-48,
-14,
-10,
21,
15,
14,
52,
-20,
9,
8,
-14,
-46,
0,
40,
-47,
37,
21,
41,
36,
17,
21,
1,
47,
14,
43,
-5,
-62,
3,
-16,
-4,
22,
-4,
41,
5,
-35,
1,
11,
17,
25,
10,
15,
22,
-1,
-19,
-25,
40,
12,
46,
-16,
24,
-10,
-23,
37,
9,
-64,
-29,
43,
-27,
-13,
33,
-2,
21,
25,
-19,
-35,
12,
7,
-23,
45,
-30,
27,
-26,
-10,
-16,
20,
-14,
-4,
-19,
-13,
-7,
23,
15,
9,
-52,
0,
17,
20,
-104,
-24,
12,
-32,
4,
-25,
32,
4,
7,
16,
-10,
-20,
-29,
-55,
-27,
21,
37,
21,
2,
-26,
8,
-44,
-35,
-7,
25,
9,
27,
26,
-8,
17,
-2,
6,
-37,
-16,
0,
-38,
14,
43,
23,
-20,
8,
9,
26,
-42,
-54,
0,
6,
43,
3,
-9,
19,
-33,
12,
-50,
-3,
-7,
-15,
-27,
23,
4,
10,
12,
-77,
-61,
39,
0,
0,
-52,
72,
3,
44,
-12,
-10,
29,
41,
10,
-30,
-23,
-9,
-39,
36,
-10,
9,
13,
34,
3,
7,
43,
-83,
0,
66,
48,
0,
-34,
53,
-4,
7,
-59,
20,
17,
-17,
-52,
11,
-30,
2,
1,
-30,
1,
26,
-35,
-4,
-2,
-37,
24,
31,
16,
8,
16,
-16,
-56,
57,
-50,
-26,
-28,
2,
20,
-45,
36,
-13,
21,
-20,
16,
25,
4,
17,
-62,
-32,
-88,
-20,
19,
-8,
12,
12,
13,
-29,
-19,
-3,
2,
8,
-18,
66,
-22,
27,
0,
-38,
-55,
-11,
7,
12,
26,
2,
-38,
17,
16,
32,
-8,
-5,
11,
18,
-24,
22,
-20,
11,
-3,
-24,
4,
0,
-51,
34,
31,
0,
-14,
9,
-19,
-11,
19,
-37,
-38,
15,
-2,
8,
5,
0,
3,
-9,
18,
-44,
67,
4,
4,
37,
-2,
-51,
3,
-17,
-28,
16,
-9,
-28,
20,
-18,
0,
-3,
44,
8,
-27,
-31,
7,
-7,
7,
7,
35,
3,
59,
7,
-15,
-4,
-19,
-12,
20,
11,
-20,
-4,
-43,
4,
-15,
-25,
-13,
58,
-15,
5,
-26,
5,
5,
22,
-44,
23,
-7,
-14,
-29,
37,
16,
32,
19,
-26,
36,
-29,
-36,
-51,
-36,
5,
32,
34,
-14,
-9,
-43,
-11,
-21,
-26,
6,
10,
10,
-19,
-30,
-39,
-24,
39,
29,
-8,
0,
-2,
21,
30,
-30,
0,
5,
11,
15,
73,
-67,
1,
-13,
39,
71,
-7,
3,
-29,
-23,
2,
-5,
17,
29,
26,
-15,
-51,
-27,
10,
41,
-17,
30,
41,
10,
1,
-33,
-15,
47,
-17,
26,
21,
-46,
-1,
-21,
-5,
-12,
-27,
-1,
47,
9,
0,
-16,
19,
13,
13,
26,
-26,
8,
25,
17,
14,
-40,
-34,
-6,
10,
37,
39,
-9,
58,
-46,
-41,
-34,
19,
38,
1,
2,
-55,
41,
-5,
-33,
-4,
0,
-22,
-19,
-30,
-2,
15,
10,
16,
3,
-19,
35,
22,
-20,
5,
0,
21,
2,
-12,
-34,
89,
-16,
4,
47,
40,
21,
-13,
2,
0,
-8,
-62,
-2,
-63,
-8,
-20,
51,
-5,
-36,
1,
18,
-33,
-31,
33,
31,
7,
-14,
-57,
-51,
11,
0,
13,
38,
15,
7,
-49,
9,
13,
-17,
-22,
0,
-13,
10,
0,
8,
5,
26,
-5,
0,
-4,
-23,
16,
33,
29,
-7,
38,
-30,
0,
-52,
16,
1,
25,
9,
26
] |
Hooker, J.
The defendant, as sheriff, levied an execution, issued upon a judgment against one James Hogan, upon an unbroken two-year-old colt, and other stock, supposed to belong to said James Hogan. Lawrence Hogan, the brother of James, thereupon replevied the property, claiming to have purchased it from James. Upon the trial it appeared that James Hogan, who was an unmarried man, lived upon a farm which he rented, that he kept house for himself, and that his hired man slept in the house occupied by him. The circuit judge directed a verdict for the plaintiff as to all of the property replevied, except the colt. He held that the colt was not exempt from execution, and left the question of ownership to the jury, who found a verdict for the defendant, and the plaintiff has brought error.
The important question is whether the colt was subject to a claim of exemption. The testimony conclusively shows that he was an unbroken colt, that he had never been used, and that James Hogan, the execution debtor, had two other horses, which he was in the habit of using in his business. We discover no testimony tending to show that the colt was intended for use in his business, and in this respect the case differs from that of Carruth v. Grassie, 11 Gray, 211 (71 Am. Dec. 707), where a heifer 20 months old, which the debtor was shown to have him-. self taken when a calf, with the expectation and purpose of keeping her for a cow, was held to be within the equitable meaning of the statute. In Minnesota two young oxen were held to be exempt, when their owner, a farmer, at the time of the levy, neither owned nor possessed any team, and it was shown that they were raised and kept by him for the purpose of being used as his team upon his farm as soon as they should be strong enough, being at the time past two years old. Berg v. Baldwin, 31 Minn. 541. In Mallory v. Berry, 16 Kan. 294, Mr. Justice Brewer held that a steer 20 months old, which had never been worked, was exempt. The owner had bought the pair with the intention of using them for a team, and had paid for this one, and taken it home; the other he had not. These cases all differ from the present case in an important particular, viz., that there was an honest intention to use the animal purchased for a team. In most of them the debtor had no other team. In the case before us there is no such testimony, and, on the contrary, it is claimed that he had sold the colt to his brother shortly before the levy. He also had a team of two horses, which were in actual use on the farm.
The plaintiff claims this sale to have been made before the levy, but that it was valid, though made afterwards, because the colt might have been selected as exempt, and a debtor may do what he will with exempt property. It has been held, where a debtor is entitled to exemptions of a given kind, that, if property of that kind be levied upon, he must be given the opportunity to select his exemption from the property levied upon, and, if he neglects or refuses to select, the officer must make such selection. It is under this rule that the plaintiff attacks the levy, and, if we must say that this colt has been shown to be subject to such selection, the plaintiff must prevail. The effect of the rule mentioned is to permit the debtor to leave the matter of selection until after the levy, and, were this colt one which was serviceable and used in the farm work, it would be governed by the rule; but where there is nothing to show that it was in a condition to be so used, or that it was procured with an honest intention to be kept for such use, we should not treat it as belonging to the exempt class. To hold otherwise would make it necessary to include all stock of the species which the law exempts. Every animal which, by any possibility, might at a future time be used as a team or part of a team, would be included in the list which officers must appraise, and from which exemptions must be set off.
We think the view taken by the learned circuit judge was correct. It becomes unnecessary to discuss the other point further than to say that, as the property was not exempt, it might be the object of a fraudulent transfer.
The judgment is affirmed.
The other Justices concurred. | [
33,
26,
4,
-5,
-29,
3,
-10,
24,
-11,
32,
2,
17,
-1,
59,
20,
25,
-12,
-29,
-10,
25,
-18,
-19,
-41,
28,
25,
-28,
13,
33,
-4,
-12,
15,
16,
13,
14,
30,
-6,
4,
33,
-9,
34,
7,
42,
-20,
-9,
22,
-15,
-8,
-61,
19,
-27,
18,
-64,
-8,
-37,
33,
11,
19,
-44,
-60,
38,
14,
-24,
-45,
-2,
-17,
-4,
14,
-16,
-13,
-8,
3,
-25,
-64,
-16,
-16,
-7,
14,
-4,
-6,
14,
0,
-23,
30,
-1,
-38,
5,
46,
-64,
20,
-20,
-29,
-18,
-53,
-4,
-12,
40,
27,
36,
-67,
-19,
1,
-24,
-4,
-11,
18,
-12,
-34,
-58,
-32,
25,
11,
1,
60,
4,
16,
-69,
-65,
5,
-58,
16,
-4,
29,
18,
-5,
2,
-12,
-50,
31,
20,
27,
36,
-3,
14,
-5,
9,
-15,
-21,
-14,
33,
-6,
20,
28,
-42,
-10,
3,
-22,
-9,
-50,
-22,
25,
-19,
-20,
-8,
9,
24,
12,
-32,
20,
8,
-2,
6,
-6,
-9,
-29,
-2,
2,
-40,
0,
-59,
15,
25,
52,
-43,
13,
69,
-11,
-4,
14,
-24,
16,
-4,
35,
-12,
13,
-30,
18,
20,
6,
-22,
42,
-29,
-12,
-3,
-50,
10,
-3,
29,
-49,
-12,
54,
-4,
27,
24,
-23,
17,
-34,
41,
-43,
-33,
-18,
-54,
16,
16,
0,
-51,
22,
9,
7,
-53,
-4,
-23,
21,
20,
1,
-4,
-46,
4,
32,
-28,
-7,
-21,
9,
64,
11,
-39,
-76,
20,
-3,
-17,
2,
-9,
-24,
-27,
-56,
51,
-49,
-13,
11,
22,
2,
31,
-43,
0,
45,
15,
-24,
-16,
-40,
57,
7,
-30,
19,
-21,
18,
2,
-2,
-16,
12,
-21,
24,
-15,
-25,
36,
58,
27,
-39,
-4,
-10,
-32,
-30,
56,
59,
-22,
-4,
-35,
0,
0,
-11,
-40,
21,
47,
-11,
32,
5,
-21,
-14,
7,
-40,
42,
-17,
20,
-4,
32,
3,
15,
5,
20,
20,
-2,
-55,
-38,
-4,
35,
8,
19,
-39,
-29,
-1,
-8,
5,
-39,
-46,
31,
-41,
46,
-9,
37,
-35,
-7,
37,
14,
-36,
-8,
-11,
-17,
11,
37,
5,
-28,
10,
6,
-6,
10,
-34,
-37,
-12,
-22,
9,
30,
43,
-1,
12,
-12,
37,
-32,
0,
42,
14,
-17,
-6,
7,
-41,
-45,
16,
3,
-55,
-29,
-37,
-15,
0,
75,
-4,
47,
-20,
20,
-8,
-13,
58,
-11,
19,
0,
34,
25,
-7,
41,
4,
-25,
7,
-19,
22,
-5,
44,
-2,
12,
-18,
-15,
-31,
-34,
6,
-40,
-6,
-51,
13,
-74,
-41,
-44,
-28,
4,
-30,
-16,
-25,
0,
23,
11,
0,
19,
-33,
2,
-33,
-17,
52,
-21,
87,
-23,
28,
-35,
-7,
0,
-55,
-37,
11,
-23,
-3,
-32,
23,
17,
-11,
62,
-18,
9,
14,
-34,
-24,
25,
12,
17,
5,
-36,
34,
-8,
51,
-75,
-20,
25,
-50,
28,
31,
-43,
11,
0,
13,
-8,
19,
-29,
43,
-30,
-16,
-23,
46,
-54,
12,
-2,
32,
26,
0,
-4,
30,
42,
3,
29,
-7,
-4,
-7,
30,
8,
-29,
-51,
-6,
-2,
32,
38,
-13,
-5,
-33,
-14,
24,
32,
16,
37,
30,
-18,
3,
39,
-21,
16,
-21,
4,
-49,
2,
38,
5,
11,
4,
-21,
-28,
-19,
2,
32,
21,
14,
7,
0,
-66,
-19,
-9,
-7,
23,
-17,
3,
-61,
43,
48,
10,
-11,
17,
-36,
21,
-26,
33,
-22,
-21,
7,
60,
17,
-17,
12,
26,
-47,
1,
3,
-32,
-50,
16,
18,
11,
-10,
-53,
-36,
-32,
15,
9,
56,
12,
0,
78,
-74,
-18,
6,
5,
10,
30,
3,
11,
24,
29,
-28,
12,
-5,
-4,
25,
-4,
31,
-32,
14,
48,
0,
-4,
33,
6,
-12,
-16,
15,
-27,
5,
-8,
5,
-14,
25,
-16,
7,
-17,
49,
-47,
37,
-3,
-42,
43,
33,
-15,
83,
-8,
54,
5,
0,
12,
-6,
20,
-25,
-7,
36,
-46,
46,
-73,
-8,
1,
0,
26,
-11,
83,
-55,
-18,
-60,
-1,
13,
-27,
-8,
9,
5,
-58,
19,
-31,
-55,
-33,
-32,
-12,
-29,
-51,
6,
0,
-23,
-18,
-14,
56,
17,
23,
-40,
-15,
-38,
9,
-26,
50,
-7,
9,
26,
5,
22,
12,
-5,
-64,
51,
71,
-3,
52,
-13,
9,
15,
45,
53,
52,
28,
0,
7,
10,
-3,
14,
22,
-8,
35,
27,
13,
23,
19,
41,
7,
-17,
26,
15,
-13,
-78,
1,
-11,
5,
17,
64,
30,
3,
8,
-33,
-6,
-1,
51,
-37,
32,
40,
6,
16,
-17,
13,
-1,
-31,
17,
-10,
28,
-39,
46,
2,
18,
27,
-33,
0,
-24,
35,
-6,
28,
-3,
37,
-47,
-23,
-47,
3,
-25,
-17,
12,
11,
-48,
-16,
-12,
-7,
43,
22,
45,
27,
-18,
-9,
-23,
-1,
0,
-33,
-55,
-51,
28,
18,
-24,
31,
-3,
6,
-7,
-7,
70,
-37,
5,
0,
-36,
-43,
34,
33,
-51,
10,
-6,
-12,
2,
-53,
0,
41,
-31,
-15,
-39,
10,
-25,
28,
29,
-35,
22,
5,
-53,
-15,
-6,
29,
-14,
2,
-13,
-4,
-14,
4,
10,
-35,
20,
-19,
-8,
-1,
-8,
-4,
-29,
-39,
-21,
-15,
-13,
-24,
-13,
45,
-12,
38,
-29,
2,
-5,
-34,
21,
-17,
32,
17,
-2,
-17,
-69,
49,
8,
-47,
-52,
35,
-5,
12,
-9,
-1,
36,
-14,
20,
-5,
-31,
14,
-40,
10,
-9,
23,
0,
22,
-37,
-55,
0,
-29,
-61,
35,
16,
-24,
7,
-70,
-5,
2,
4,
37,
26,
-16,
5,
26,
-39,
-5,
-25,
33,
-22,
10,
21,
-13,
36,
-8,
-12,
29,
-4,
11,
1,
-69,
16,
-2,
42,
43,
-2,
10,
41,
-4,
34,
31,
47,
-45,
-38,
5,
15,
-12,
59,
-26,
11,
-17,
-18,
29,
13,
8,
15,
10,
-29,
51,
-35,
-24,
42,
-2,
26,
22,
21,
6,
13,
-7,
-10,
-18,
30,
48,
-10,
12,
-4,
-15,
-41,
2,
-18,
0,
3,
11,
23,
25,
-3,
-5,
-21,
-37,
-33,
-15,
24,
0,
-18,
27,
42,
18,
-8,
-27,
-31,
38,
-9,
45,
1,
30,
-16,
24,
34,
41,
0,
30,
-39,
-28,
-22,
-18,
20,
-61,
58,
0,
46,
45,
-25,
0,
-4,
-66,
-46,
14,
-21,
-3,
12,
-16,
-34,
19,
-20,
68,
29,
67,
4,
17,
-4,
20,
-15,
-58,
-1,
-24,
9,
32,
18,
2,
11,
25,
-63,
-57,
-43,
-11,
-38,
-18,
0,
11,
16,
44,
-34,
5,
19,
0,
27,
42
] |
Moore, J.
Complainants, who are taxpayers of the township of James, in Saginaw county, filed the bill in this case to enjoin the highway commissioner from making repairs on a bridge across the Tittabawassee river, known as the “Merrill Bridge,” and to enjoin the employment of a bridge tender, and the payment of orders which had then been issued for repairs of said bridge. In the court below the bill was dismissed. Complainants appeal.
The record shows that the river at the place crossed by the bridge is the dividing line betwéen the townships of Saginaw and James. The bridge is a drawbridge. The greater portion of the pier sustaining the draw when open is in the township of Saginaw, while the main channel for the passage of boats is in the township of James. At this point the stream is navigable for boats of 16 tons or mere burden. A private corporation known as the Swan Creek & Saginaw Bridge Company was organized in 1867, and in that year was authorized by the board of supervisors to erect a swing bridge “across the Tittabawassee river, at or as near as may be to a point on said river where the section line between sections 4 and 5, town 11 north, of range 4 east, and sections 32 and 33, town 12 north., of range 4 east, in Saginaw county, crosses said river.” Prior to this action, the highway came to' the bank of the river, where a ferry was maintained; and at this location a bridge was built and opened for travel in 1869. In 1869 the legislature authorized the township of Swan Creek to borrow $3,000, and to apply it in aid of the construction of this bridge (Act No. 313, Laws 1869), which was done. In 1875 that portion of Swan Creek township adjacent to the river was formed into a new township, called James. The same year the legislature authorized the last-named township to purchase the bridge from the private corporation which then owned it, and the township was charged with the duty of attending to. the swing and draw, and was authorized to collect tolls, and at any time to declare it a free bridge. This act provided:
“Upon said bridge being purchased by said township, the commissioners of highways of the township shall have charge thereof, and may employ some suitable person to attend the swing in said bridge, and to collect toll thereon,” etc. Act No. 248, Local Acts 1875.
In 1883 the township made this a free bridge; and from the time the township bought the bridge, in 1875, until 1887, it operated, supervised, and kept all of the bridge in repair. In the last-named year the legislature authorized the township to borrow $4,000, issuing its bonds therefor, to build a bridge across the river “ at the point where the. bridge built by the Swan Creek & Saginaw Bridge Company is now located.” This act provided that, if the township voted to borrow this money, the supervisor, clerk, and commissioner of highways should be special commissioners to have charge of the building of said bridge, and that they might make a contract for- its building. Act No. 370, Local Acts 1887. The township voted the money, and the bridge jyas built in the same location as the former bridge, the piers being in the same places occupied by the other piers, except that in the new bridge .there was one pier less than in the old bridge.
A bridge has been located at this point, first by the cor poration, and then by James township, for 29 years, without objection from any person or municipality until this bill was filed. In 1887 the board of supervisors authorized the township of James to construct a bridge across the Tittabawassee river on the west line of section 4, town 11 north, of range 4'east. It is now said that, as the location of the bridge is about 60 rods from the west line of section 4, the bridge is not a lawful bridge.
In Maxwell v. Bay City Bridge Co., 41 Mich. 462, Justice Cooley said:
“Bridges over navigable waters are sometimes needful at places where there are no towns or considerable settlements; and in such a case the interests involved would be concerned with getting over the stream, and not in making use of it in connection with commercial business at the point of crossing. Less particularity might be sufficient in such a case, because it would generally be unimportant to the interests desiring or opposing the bridge whether it should be located a few rods farther up or down.”
The record shows that in October, 1887, the board of supervisors appropriated $500 to aid the township of James in the construction of this bridge, and that at its October session in 1897 the board appropriated $400 to the township of James for the purpose of repairing the bridge so located, indicating' no objection to its location. As we have seen, the hoard of supervisors authorized the location of this bridge where it is in 1867, and at the dates mentioned made appropriations for its repair. The legislature has recognized it for 29 years. The bridge accommodates a large travel, one of the principal thoroughfares of the county passing over it; and we think it is now too late to raise the question.
It is said by complainants’ counsel: “The township of James had no authority to construct this bridge, so far as the same lies within the township of Saginaw; and, if Act No. 370, Local Acts 1887, can be construed as attempting to confer such authority, it is unconstitutional and void,” —citing Davies v. Board of Supervisors of Saginaw Co., 89 Mich. 295; Wilcox v. Paddock, 65 Mich. 23; Robertson v. Baxter, 57 Mich. 127; People, ex rel. Hubbard, v. Township Board of Springwells, 25 Mich. 153; People, ex rel. Le Roy, v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); Wrought Iron Bridge Co. v. Township of Jasper, 68 Mich. 441. It is also claimed that there is no provision of law for raising money to pay bridge tenders, and that moneys raised for highway purposes must be expended within the township where raised; citing 3 How. Stat. § 1338; Sawyer-Goodman Co. v. Township of Crystal Falls, 56 Mich. 597. It is also said: “Because there was no provision in Act No. 370, either for repairing this bridge or operating the draw, that act was incomplete, and therefore not valid, even if constitutional upon other grounds; ” citing Ecorse Township Board v. Board of Supervisors of Wayne Co., 75 Mich. 264, approved in Township of Frenchtown v. Board of Supervisors of Monroe Co., 89 Mich. 205, 209; Osborne v. Lindow, 78 Mich. 606, 614.
An examination of these cases does not convince us that it was either unconstitutional or unlawful to authorize the construction of the bridge in the first instance, or to authorize its purchase by the township of James later. Our attention has not been called to any provision of law authorizing highway commissioners, under the powers conferred upon them by the 'general highway law, to construct a bridge over a navigable stream where the interests of navigation required the bridge to contain a draw. Article 18, § 4, of the State Constitution, forbids the bridging of a navigable stream without authority from the. board of supervisors of the county where the bridge is located. Subject to this limitation, and the limitation imposed by the Constitution and laws of the United States in relation to navigable streams, the legislature has the right to enact laws providing for the erection, maintenance, and ownership of bridges over the streams of this State. 4 Am. & Eng. Enc. Law (2d Ed.), 923. This right it has frequently exercised. Act No. 62, Pub. Acts 1889, provides for the erection of bridges on-lines between townships, and between townships and cities and villages. It was held in Ecorse Township Board v. Board of Supervisors of Wayne Co., 75 Mich. 264, that this act did not apply to a navigable river over which it would be necessary to construct a drawbridge which must be operated during the season of navigation; Justice Champlin saying: “Where a township refuses voluntarily to assume the burden and obligation of constructing and maintaining a drawbridge, the burden and the obligation cannot be forced upon it by the board of supervisors without an express grant from the legislature authorizing them to impose such burden,” — indicating pretty clearly that, if a township voluntarily assumed the erection and maintenance of such a bridge when duly authorized by the board of supervisors and by virtue of an express grant of the legislature, it would be lawful. The record shows that all this was done in this case.
In Com. v. Inhabitants of Charlestown, 1 Pick. 180 (11 Am. Dec. 161), it is said that, “if the stream is a navigable river, it is for common use, and none but the legislature can authorize the interruption of it.” The court in that case say further:
‘ ‘ There can be no doubt, therefore, that by the principles of the common law, as well as by the immemorial usage of this government, all navigable waters are public property for the use of all the citizens, and' that there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them. The legislature may, without doubt, by a general law, delegate to the magistrates of a county, or to any other body, the power of determining when public convenience requires that a bridge should be thrown over a creek or a cove; but, until they have made such delegation in express terms, it is a branch of sovereign power, to be exercised by the legislature alone.”
See Com. v. Coombs, 2 Mass. 489; Inhabitants of Charlestown v. Middlesex County Com'rs, 3 Metc. (Mass.) 202; Washer v. Bullitt Co., 110 U. S. 558; Inhabitants of Brunswick v. City of Bath, 90 Me. 479; Carter v. Bridge Proprietors, 104 Mass. 236.
In 1882 the legislature authorized the board of supervisors of Bay county to purchase from the Bay City Bridge Company a drawbridge across the Saginaw river, which purchase was soon thereafter made. Act No. 278, Local Acts 1889, established the Bay county bridge commission, which commission was authorized to receive from the board of supervisors a conveyance of the bridge which had been purchased by the board. In People, ex rel. Attorney General, v. Bay County Bridge Commission, 115 Mich. 622, it was held that the bridge commission acquired the title to the bridge and property which was formerly owned by the Bay City Bridge Company, and it was said:
“We think it also clear that whatever right the county of Bay had to the bridge and its approaches was after-wards acquired by the bridge commission, and following this right was the duty to keep in repair.”
The township having acquired the title to this bridge, we think it logically follows that it is its duty to keep it in repair, and to provide the necessary funds to operate the draw, not exceeding the limitation fixed by law.
We have examined the other questions raised, but we do not deem it necessary to discuss them. We have already seen that the Constitution of our State requires the consent of the board of supervisors to the bridging of navigable streams. The record shows that this was obtained. It was accompanied by requirements as to the character and construction of the bridge. Among other things, it was required that a draw should be constructed and operated. As we have also seen, the legislature authorized what has been done. This action has been acquiesced in for a long series of years. If the prayer of the complainants is granted, the effect is to close the crossing of this stream against a large number of persons, or to compel them to go much farther, and to cross the river upon a toll bridge. We do not think the case made by complainants would justify such action.
The decree is affirmed, with costs.
The other Justices concurred. | [
-49,
78,
-14,
-45,
8,
1,
11,
9,
13,
19,
-29,
-28,
-2,
-29,
72,
-29,
-12,
-7,
-11,
1,
-28,
-12,
13,
-21,
-21,
49,
38,
13,
-29,
-11,
-23,
5,
-46,
61,
27,
8,
-13,
49,
-16,
16,
-56,
19,
-7,
-49,
10,
4,
85,
-8,
-4,
0,
-91,
31,
-32,
0,
-30,
17,
12,
-17,
-30,
27,
-11,
-20,
-3,
45,
-45,
-13,
-2,
65,
76,
-44,
-28,
36,
21,
7,
13,
46,
-4,
-32,
7,
36,
-63,
30,
-3,
16,
-12,
-23,
-37,
16,
6,
18,
-31,
-3,
-42,
16,
39,
43,
-32,
-26,
9,
-14,
45,
17,
11,
-5,
25,
24,
-17,
-37,
-15,
11,
-67,
-10,
27,
-40,
27,
-32,
6,
9,
61,
8,
28,
28,
32,
-5,
-48,
0,
52,
-29,
-29,
60,
-6,
-36,
-21,
18,
-12,
50,
-23,
2,
23,
14,
0,
72,
-16,
-9,
-41,
-1,
27,
-3,
-38,
3,
-19,
29,
56,
-10,
-46,
-2,
28,
29,
80,
-15,
10,
0,
9,
-34,
-97,
-16,
14,
-40,
40,
74,
13,
13,
9,
-39,
6,
-23,
0,
33,
-7,
3,
10,
-13,
0,
36,
-17,
-10,
0,
-19,
17,
-34,
39,
-14,
2,
-33,
-21,
74,
7,
-12,
-60,
25,
-26,
-34,
29,
18,
-8,
-21,
-28,
-31,
-71,
2,
31,
30,
-30,
26,
7,
28,
-2,
17,
54,
-78,
-7,
6,
80,
-5,
-9,
-43,
-15,
-1,
21,
-65,
58,
15,
17,
15,
-34,
-2,
-25,
-24,
-5,
-27,
-43,
52,
2,
-24,
21,
-7,
-89,
-71,
10,
21,
0,
-14,
-62,
14,
-15,
7,
47,
3,
7,
-14,
-3,
6,
-30,
-48,
22,
-50,
33,
31,
-44,
-34,
-26,
33,
69,
-26,
-72,
-28,
30,
0,
26,
17,
14,
-90,
-29,
-1,
27,
27,
-30,
-23,
-24,
4,
-41,
31,
31,
53,
-4,
32,
20,
-55,
29,
-11,
-27,
29,
-11,
4,
7,
16,
-45,
4,
41,
48,
-6,
-14,
-60,
13,
21,
-18,
32,
-2,
12,
-30,
78,
71,
-10,
-1,
-12,
51,
-24,
31,
-33,
9,
40,
-2,
-38,
-1,
65,
-15,
37,
-42,
-35,
27,
30,
27,
37,
2,
0,
-14,
1,
19,
-8,
-19,
-69,
17,
-6,
24,
-12,
1,
25,
29,
-39,
4,
-3,
50,
-43,
1,
16,
-32,
-43,
44,
6,
33,
-10,
-22,
4,
54,
-8,
0,
-26,
29,
-30,
11,
8,
38,
23,
2,
30,
10,
-17,
-23,
-65,
-6,
0,
-9,
3,
44,
51,
-16,
26,
-39,
-55,
8,
-36,
21,
1,
96,
-33,
16,
0,
28,
-3,
-5,
-21,
-60,
-18,
35,
-11,
1,
21,
0,
-37,
-19,
37,
31,
-45,
-66,
38,
-33,
28,
-3,
2,
42,
-3,
51,
58,
-4,
25,
10,
-41,
-23,
-48,
-27,
42,
5,
29,
7,
-21,
-83,
1,
39,
-13,
-36,
48,
63,
-56,
27,
10,
7,
-25,
2,
-15,
-33,
-17,
-21,
-22,
-6,
-23,
-15,
-57,
-6,
28,
25,
-25,
57,
-12,
-13,
-33,
-47,
49,
-45,
6,
-12,
1,
-46,
-22,
9,
-8,
-56,
0,
62,
-15,
-10,
61,
-18,
1,
31,
31,
50,
-22,
-2,
-2,
-29,
38,
22,
-34,
-7,
10,
6,
-37,
60,
-67,
20,
-35,
-26,
7,
6,
-31,
50,
-9,
-17,
-4,
-49,
-36,
22,
-19,
-7,
-2,
-4,
-42,
5,
19,
1,
-5,
29,
-6,
23,
-44,
-21,
8,
3,
-8,
24,
54,
25,
30,
-13,
15,
14,
-26,
-23,
38,
-29,
29,
-13,
-25,
-44,
-28,
45,
-59,
-50,
18,
-3,
-58,
-50,
3,
-43,
53,
-12,
-31,
-1,
27,
-96,
16,
16,
15,
-2,
6,
10,
-26,
-48,
13,
36,
-19,
-51,
-21,
-19,
-8,
-6,
8,
46,
-30,
17,
-33,
33,
-28,
17,
52,
82,
35,
11,
-18,
-5,
39,
-21,
-23,
21,
25,
2,
-36,
10,
22,
63,
-28,
0,
19,
25,
16,
9,
-24,
-52,
11,
-27,
61,
-31,
17,
-29,
-13,
4,
57,
21,
-23,
-13,
-41,
8,
-83,
-24,
36,
-12,
49,
6,
-2,
51,
-47,
-19,
-40,
-27,
2,
-17,
-36,
39,
-46,
3,
-40,
45,
14,
-13,
-4,
68,
7,
34,
12,
-17,
75,
-22,
52,
22,
3,
21,
13,
68,
-12,
15,
-3,
-63,
11,
-14,
-1,
-63,
9,
27,
25,
-11,
79,
12,
6,
-27,
13,
-60,
12,
-20,
-31,
-41,
-2,
-21,
5,
18,
23,
8,
-1,
29,
-26,
-10,
1,
-11,
-32,
26,
-55,
-1,
3,
-36,
-32,
3,
-10,
-10,
6,
94,
17,
38,
-17,
15,
-71,
16,
0,
-36,
-45,
-12,
3,
-39,
-28,
-49,
-67,
79,
-39,
57,
-18,
-36,
5,
-37,
-19,
15,
-16,
3,
20,
-43,
-38,
-14,
-39,
10,
-1,
-8,
-40,
-15,
25,
7,
-9,
42,
25,
-29,
-46,
41,
-7,
13,
17,
7,
67,
39,
12,
5,
-21,
19,
6,
1,
-41,
9,
-14,
-47,
55,
0,
-36,
-2,
0,
-50,
1,
-23,
-10,
5,
21,
-21,
15,
-15,
21,
-38,
-14,
8,
-13,
5,
1,
9,
59,
55,
11,
-9,
-24,
71,
9,
46,
-17,
-35,
-2,
-23,
21,
17,
-73,
5,
-9,
-60,
51,
-64,
-22,
36,
-4,
-15,
-21,
19,
-33,
-12,
8,
-49,
-9,
30,
-5,
16,
34,
61,
-13,
-52,
26,
-49,
14,
-11,
-1,
-29,
-20,
5,
-1,
0,
-12,
-15,
38,
-41,
-44,
8,
-27,
12,
-16,
-29,
-40,
42,
-43,
-2,
-2,
32,
33,
6,
14,
-37,
-28,
-4,
22,
-26,
-33,
-41,
-5,
-3,
-11,
11,
16,
-27,
30,
-23,
-31,
-28,
-22,
-41,
22,
-21,
28,
-47,
24,
-14,
62,
88,
32,
5,
64,
-25,
0,
-16,
-24,
6,
-12,
-1,
19,
-4,
3,
-3,
-26,
-66,
37,
-32,
23,
77,
-15,
-6,
-30,
-43,
-50,
-58,
-3,
-37,
12,
53,
0,
-8,
4,
6,
-63,
33,
-14,
33,
-17,
33,
-19,
2,
-41,
21,
13,
-23,
34,
-7,
-17,
13,
53,
3,
-46,
10,
0,
29,
24,
23,
-27,
11,
33,
-68,
45,
55,
-13,
-32,
-45,
-2,
49,
16,
61,
60,
39,
-17,
-45,
22,
61,
-5,
20,
42,
2,
21,
-29,
-6,
-10,
71,
61,
-42,
39,
-77,
39,
-8,
12,
53,
-27,
-8,
38,
-12,
-6,
31,
-16,
1,
-3,
-56,
63,
0,
-23,
-15,
-43,
-19,
50,
22,
-19,
33,
7,
-7,
19,
27,
44,
25,
-3,
32,
-12,
-23,
29,
39,
0,
16,
18,
-28,
31,
-1,
-39,
25
] |
Long, J.
This action was brought in assumpsit against the defendant Williams Milling Company (a corporation) as maker, and defendants Frank D. Pierson and George L. Mosher as indorsers, of a promissory note. The declaration is upon the common counts, to which is added a copy of the note sued upon, and a notice that the note constituted the plaintiff’s sole cause of action. Defendants pleaded the general issue. Upon the trial the defendants claimed that the notice of protest attached to the note was insufficient to bind defendants Pierson and Mosher as indorsers. It appeared that there was attached to the note the following certificate:
“United States oe America, State of New York.
“I, Henry Wheeler, notary public, do hereby certify that I have this day duly protested for nonpayment the annexed bill.
“Troy, December 14, 1896.
[Seal.] “H. Wheeler, Notary Public.”
When this note and certificate of protest were offered in evidence, the court below held that the certificate was insufficient, in that it did not show that payment of the note was demanded at the place of payment, or what the notary did, if anything, to notify the indorsers, and that plaintiff could not recover against the indorsers. The case being on trial before the court, an adjournment was given from May 13th to June 8th following, when the plaintiff again produced the note, and a certificate of protest, purporting to be made by the same notary, in due and legal form, which would have entitled the plaintiff, if attached to the note in the first instance, to hold the indorsers. It was conceded that this certificate was made out after the former partial hearing on the 13th of May, by the attorney for the plaintiff, drawn upon his typewriter at Bay City, Mich., and sent to the plaintiff bank, at Troy, N. Y., and there signed by the notary, and returned, without any change or alteration whatever being made in it as drawn at Bay City. The plaintiff then rested its case, and no other testimony was given upon the trial by either party. The court found that neither certificate was sufficient evidence of the protest of the note; that the second certificate was made more than six months after the actual protest of .the note, and was not proof of the facts therein stated. Judgment was given for the plaintiff against the Williams Milling Company, as maker of the note, and in favor of defendants Pierson and Mosher.
Section 632* 1 How. Stat., makes such certificates presumptive evidence of the facts contained therein in all courts of this State. Counsel for plaintiff contend that the first certificate was sufficient evidence of the due presentment and protest of the note.. We cannot agree with this view. The essentials of a protest are the time, place, and manner of presentment, demand, and dishonor, the person by whom and to whom presentment was made. 2 Daniel, Neg. Inst. § 950. Where a bill is payable at a hank, the protest must state a demand made there. People’s Bank v. Brooke, 31 Md. 7 (1 Am. Rep. 11); Nave v. Richardson, 36 Mo. 130. None of these requisites is shown in the first protest. The place and manner of presentment are wholly lacking, and the person to whom the presentment was made is not stated. The purpose of the statute is to avoid the necessity of calling the notary, and to make his certificate prima facie evidence. The evidence contained in the first certificate was not sufficient to warrant a judgment against the indorsers.
But counsel further contend that at least the court was in error in refusing to enter judgment after the Second certificate was received in evidence. In this contention we think counsel are correct. In Burkam v. Trowbridge, 9 Mich. 209, it was said:
“The object of this notice has always been held to be merely to bring home to the party sought to be charged information that the paper has been presented at maturity, and dishonored, and that he is looked to for payment. * * * The protest of a note includes, by natural inference, the timely demand and refusal which alone could justify it; and a notice of protest, therefore, is an inferential statement of these.”
Our statute makes such certificate of protest prima facie evidence. A proper certificate is annexed to the note, and the only objection made is that it does not bear date as of the day the presentment was made. If a note or memorandum had been made by the notary at the time he made the presentment, showing what was done, and time when, a certificate made up from that memorandum would have been sufficient. Bailey v. Dozier, 6 How. 23. In New York even this memorandum would not have been necessary, but the certificate of the notary is held to b & prima facie evidence of the facts recited in it, though the certificate be made and dated two years after the date of presentment. Cayuga County Bank v. Hunt, 2 Hill, 635. We cannot presume that the notary did not do all that is stated in his certificate, though the certificate is dated six months after the date of presentment. The presumption, under this statute, which makes the certificate evidence, is that the certificate correctly sets out the facts.
The judgment below must be reversed, and judgment entered here in favor of the plaintiff against all the defendants.
The other Justices concurred. | [
-35,
-8,
34,
31,
20,
13,
34,
-86,
31,
34,
-27,
2,
-19,
-25,
-23,
-5,
20,
-44,
17,
-21,
-61,
-67,
1,
-25,
-11,
16,
-29,
57,
-9,
39,
-1,
16,
-23,
37,
-35,
-24,
31,
-5,
32,
4,
23,
-20,
67,
-18,
-27,
-13,
16,
-18,
24,
-30,
28,
-9,
-9,
-6,
-27,
6,
0,
-39,
40,
25,
-36,
-35,
48,
-45,
-69,
-33,
-15,
-5,
36,
-35,
10,
6,
55,
-34,
-6,
-56,
-20,
-8,
-54,
-5,
-8,
-7,
-38,
-67,
-22,
-1,
0,
-45,
50,
-3,
-21,
6,
-34,
-10,
12,
-15,
10,
29,
19,
50,
12,
-49,
-36,
-13,
9,
32,
-16,
-13,
-64,
-14,
17,
14,
18,
-28,
-22,
0,
-8,
5,
23,
-3,
8,
11,
32,
14,
-45,
48,
-31,
-34,
11,
31,
34,
9,
-59,
22,
12,
44,
56,
-16,
24,
-9,
-48,
26,
-43,
-32,
-1,
0,
-22,
73,
11,
-42,
-64,
74,
27,
5,
-61,
13,
-3,
-46,
14,
-69,
18,
-17,
41,
-41,
-13,
16,
-17,
15,
12,
13,
17,
-2,
-39,
0,
-6,
30,
-12,
-2,
29,
-29,
25,
38,
-7,
-32,
56,
17,
-41,
17,
14,
20,
15,
-6,
-25,
18,
-8,
-13,
-26,
-25,
12,
-9,
26,
-19,
4,
-5,
-33,
5,
62,
-4,
-52,
36,
-2,
-27,
-11,
0,
-33,
28,
12,
-47,
6,
23,
15,
15,
-32,
-11,
-1,
-34,
36,
30,
-25,
3,
3,
10,
19,
13,
7,
18,
10,
4,
8,
54,
-49,
0,
-12,
-45,
11,
17,
7,
-9,
12,
2,
31,
23,
-34,
26,
-15,
5,
-8,
-13,
-13,
-4,
25,
31,
-19,
4,
9,
-27,
34,
9,
-28,
51,
5,
-34,
35,
23,
-15,
-13,
12,
-39,
-25,
-18,
5,
9,
-40,
6,
-19,
-7,
0,
16,
-8,
-10,
-2,
-2,
5,
-8,
29,
11,
-4,
-34,
-19,
17,
-11,
-61,
11,
-69,
-25,
3,
0,
-17,
-45,
-16,
-1,
38,
-11,
-29,
24,
-9,
-37,
7,
12,
-23,
-11,
83,
-15,
-27,
6,
38,
3,
30,
45,
-22,
26,
15,
28,
-4,
-8,
11,
48,
-42,
-15,
-23,
41,
29,
-21,
27,
-41,
13,
-43,
-37,
-6,
7,
-13,
-47,
-23,
28,
48,
75,
-34,
-19,
-20,
47,
0,
-16,
-16,
-54,
27,
-10,
-41,
-24,
32,
18,
-42,
-4,
-39,
-27,
12,
13,
-12,
-22,
-15,
27,
28,
-8,
0,
-1,
37,
15,
-9,
-14,
-35,
-18,
-37,
22,
-8,
18,
-3,
-29,
21,
-29,
-49,
13,
-47,
22,
21,
44,
-62,
29,
0,
1,
-22,
42,
3,
-24,
-67,
3,
-27,
-33,
50,
27,
14,
7,
15,
8,
-41,
-42,
35,
-37,
45,
40,
18,
16,
0,
15,
31,
-3,
48,
36,
2,
40,
32,
-5,
-3,
13,
-45,
5,
34,
23,
-4,
-7,
-6,
-3,
21,
-9,
4,
16,
39,
89,
2,
-19,
50,
-20,
-6,
4,
22,
50,
-2,
38,
19,
-47,
24,
5,
3,
-6,
-11,
44,
-66,
-5,
13,
-11,
-17,
15,
-10,
61,
10,
-14,
0,
-14,
-37,
-35,
-9,
-18,
34,
-11,
12,
10,
6,
15,
-47,
-36,
-14,
52,
-7,
11,
-9,
8,
-1,
21,
-60,
30,
8,
60,
-3,
-31,
23,
-7,
-34,
51,
-30,
10,
-16,
17,
38,
-28,
-40,
12,
-6,
-9,
-6,
19,
15,
20,
8,
56,
44,
-8,
-15,
30,
0,
9,
0,
-25,
-30,
32,
55,
71,
-4,
2,
-33,
-21,
-7,
5,
-4,
19,
48,
17,
-40,
35,
42,
9,
-9,
-41,
-36,
6,
8,
-30,
33,
-16,
47,
8,
14,
-36,
-3,
-8,
-7,
-11,
-5,
5,
-30,
-17,
6,
-32,
-2,
1,
16,
-75,
-49,
-6,
-11,
-2,
-45,
-15,
16,
58,
-61,
-31,
3,
14,
-10,
-4,
26,
22,
48,
-13,
-18,
-17,
-15,
-16,
-66,
41,
16,
-34,
0,
37,
-7,
40,
1,
-20,
-5,
-10,
31,
-21,
36,
9,
-5,
23,
-8,
17,
-19,
-51,
-27,
7,
-41,
-19,
-49,
16,
-29,
2,
-13,
33,
22,
-27,
-22,
-10,
-3,
6,
-23,
0,
-35,
30,
30,
25,
20,
22,
49,
-37,
-19,
9,
16,
9,
-19,
2,
-25,
-9,
53,
25,
-32,
-3,
45,
10,
53,
-5,
51,
-48,
3,
-7,
-18,
-5,
11,
6,
22,
-1,
18,
4,
44,
22,
15,
-65,
-2,
39,
-13,
-14,
-13,
12,
-26,
13,
7,
56,
3,
-16,
8,
-13,
7,
33,
12,
57,
17,
-12,
-62,
-31,
27,
-12,
45,
-39,
-22,
-63,
14,
42,
2,
40,
-12,
-28,
15,
8,
19,
-39,
-19,
42,
15,
7,
7,
12,
-16,
34,
-26,
-25,
-13,
7,
8,
-36,
-10,
-15,
2,
-42,
-9,
14,
19,
16,
-46,
-15,
-33,
1,
36,
14,
-20,
-4,
51,
-2,
-66,
-18,
2,
-14,
29,
-1,
14,
-69,
-21,
18,
-45,
-30,
37,
-18,
37,
-9,
3,
-47,
45,
1,
37,
-27,
40,
0,
-4,
-1,
31,
9,
-1,
-33,
-16,
65,
-14,
51,
20,
-3,
-22,
-24,
-51,
26,
-43,
52,
-18,
0,
-2,
-35,
-27,
12,
-47,
24,
33,
1,
15,
-20,
-11,
6,
-43,
-76,
-14,
3,
-46,
26,
13,
-9,
-58,
39,
21,
-6,
7,
14,
-49,
45,
-40,
12,
65,
-59,
-13,
1,
8,
44,
41,
20,
15,
-20,
9,
-29,
3,
10,
-8,
-1,
23,
43,
27,
-68,
-10,
68,
-44,
-31,
-24,
3,
33,
-7,
-6,
4,
39,
-22,
-36,
-10,
30,
-44,
-49,
-18,
3,
28,
22,
-16,
-9,
7,
7,
-6,
-1,
-35,
7,
44,
-28,
-18,
6,
-5,
-19,
-31,
57,
-11,
14,
15,
-25,
-18,
19,
-10,
-11,
-17,
25,
-53,
30,
28,
-19,
9,
35,
-3,
25,
12,
29,
25,
6,
52,
95,
-31,
34,
-30,
-27,
12,
20,
41,
-7,
-2,
-14,
3,
-19,
8,
-6,
-12,
29,
45,
1,
13,
0,
-31,
-7,
13,
46,
16,
15,
-43,
27,
-10,
19,
-12,
-4,
-19,
-30,
-9,
-30,
-5,
-4,
7,
-76,
-5,
16,
17,
-83,
-17,
2,
-54,
8,
-12,
12,
51,
16,
-2,
-31,
26,
44,
7,
35,
-31,
-20,
39,
-11,
0,
-18,
28,
15,
-6,
-42,
19,
42,
-6,
-30,
30,
2,
-47,
24,
-38,
-8,
-3,
10,
62,
-28,
-34,
7,
-2,
18,
-24,
-43,
-2,
18,
-5,
14,
4,
28,
-72,
33,
-12,
2,
28,
-22,
-34,
66,
58,
30,
19,
19,
-29,
4,
16,
-16,
-33,
3,
13
] |
Hooker, J.
The defendant was convicted of the offense of obtaining the signature of the complainant to three promissory notes by means of false pretenses, and has brought the case to this court by writ of error.
The record shows that upon a former trial a jury was impaneled and sworn, and testimony taken, when the judge ordered all proceedings to be quashed and the prisoner discharged. The journal entry, after reciting that the jury was impaneled and sworn, proceeded as follows :
“After hearing counsel for the respective parties, and the court being fully advised in the matter, it is ordered that all proceedings in this cause be quashed, and the prisoner discharged, for the reason that the circuit court has no jurisdiction in the matter.”
Subsequently an order was made vacating the order to quash the proceedings and discharge the prisoner, and reinstating the case. The trial followed, resulting in con.viction; and it is now contended that the defendant was in jeopardy upon the first trial, and that the subsequent conviction was erroneous for that reason. The record does not show the ground of the court’s action in quashing the proceedings, and it does not expressly appear that it was made upon the motion of defendant’s counsel, though that is inferable from the statement that the order was made “after hearing counsel.” It seems to be conceded by counsel, however, that it was claimed upon behalf of the ■defendant that the statute upon which the charge was brought had been repealed, and the court so held. Subsequently, this court passed upon the question in another case, and held otherwise, and the motion to reinstate followed.
It is urged upon the part of the prosecution that this •question should have been, but was not, raised by plea, and that the alleged former acquittal was not proved upon the trial. But we are of the opinion that the contention ■should not prevail. While the record returned contains no plea, a reference to it appears. Furthermore this is not a new proceeding, but it is a second trial in the first and only prosecution instituted. All that has occurred is before the court, upon its own record in the case, and therefore need not be pleaded, nor is formal proof of the record required. This was held in the case of People v. Harding, 53 Mich. 481, where it was said that special pleas had no office to perform where the facts alleged in them were already in the case.
There can be no doubt, under the weight of authority, that the defendant was in jeopardy upon the first trial. There are authorities that hold that legal jeopardy does not attach until a verdict is rendered, but that has never been the rule in Michigan.
It is urged by the prosecution that the defendant cannot avail himself of his former jeopardy, having waived it by his motion, which upon its face shows that he was willing that the merits of the case should not be disposed ■of. We are cited to 1 Bish. New Cr. Law, § 1027, subd. 4, which states the rule to be that “where, at any stage ■of the proceedings, the defendant procures the indictment to be quashed, he cannot, in bar to a new one, assert that the first was good, and he was in jeopardy under it.” Three cases are cited in support of this statement of the law. One of these goes no further than to hold that where a conviction is set aside by the trial court on the defendant’s motion, and upon the ground that the infor mation is bad, such proceedings are not a bar to a subsequent prosecution for the same offense, upon a new information. State v. Hart, 33 Kan. 222. That is the rule in this State, to the extent at least that it would not bar another trial on the same information. But the setting aside a conviction upon a defendant’s motion is a radically different thing from acquitting him upon the trial, though upon an erroneous legal proposition urged by his counsel. See, also, State v. Norvell, 2 Yerg. 24 (24 Am. Dec. 458); People v. Casborus, 13 Johns. 351; Gerard v. People, 3 Scam. 362.
The case of State v. Priebnow, 16 Neb. 133, held a plea of former acquittal bad where it failed to show that there had been a judgment of acquittal. In that case the record showed that an objection was made to the introduction of testimony, on the ground that the indictment did not charge the commission of a crime. The case turned upon a statute, which the court construed to require a judgment of acquittal to justify the plea. Thus, it would seem that Nebraska might be added to the list of States which hold that jeopardy does not begin until after the verdict is declared. See 1 Bish. New Cr. Law, § 1018, and note. It can hardly be considered an authority in support of the rule stated by Mr. Bishop in those States which do not adopt the view that jeopardy begins only after verdict.
The third and last case cited by the author is Joy v. State, 14 Ind. 149. In that case an indictment contained two counts. During the trial, on motion of the defendant’s, counsel, the prosecuting officer was required to elect between the counts, which he did. The court afterwards quashed the count elected, and the prosecutor' was then, allowed to nol. pros, the discarded count. The prisoner was remanded to jail, and was discharged from that indictment. He was indicted again, and pleaded his’ former jeopardy. The court held that, by his own consent, he had waived the right to raise the question. It appeared in that case that the rulings were made after the jury was sworn, but before the prosecuting officer had stated the case to the jury, which the court said, ‘ ‘ under our practice, is in effect giving the defendant and the case in charge to the jury;” citing 2 Rev. Stat. p. 374, § 103. Thus, we find that the two cases which tend most strongly to support the claim of the prosecution are from code States, and the decisions are apparently based upon statutes, while in one of them, viz., the Indiana case, it is intimated that the-jury had not taken charge of the defendant or his case when the action was taken, and he was not in jeopardy for that reason.
This case should be distinguished from a class of cases where, after a jury is impaneled and charged with the defendant and his case, some intervening necessity compels the discharge of the jury, e. g., the death or sickness of a juror, the ending of the term, a disagreement, etc., and •possibly a continuance, granted upon the motion of the defendant. The case of Stewart v. State, 15 Ohio St. 155, is such a case. After the jury was sworn, it was discovered that one of the jurors had been on the grand jury which found the indictment in the case. The defendant’s counsel objected to proceeding to trial with the jury thus impaneled, but declined to waive any of the defendant’s rights. The jury was discharged, and a conviction by another jury was sustained. Such a case was People v. Gardner, 62 Mich. 312. There a question arose over the regularity of the jury, and a new one was called upon the defendant’s objection to the first. It was said by Mr. Justice Champlin that “he has no right to complain that his objection was sustained, and the discharge of the jury with his consent cannot be set up as an acquittal.” The case before us is different. The counsel for the defendant went into the trial of their case, and upon the trial obtained what has usually been considered as equivalent to a verdict of acquittal by direction of the court, upon a legal question involved in the case. The defendant did not-ask to have the jury discharged, under circumstances implying a consent to a trial before another jury, as in the case of People v. Gardner, and authorities cited; but he raised a question going to the legal merits of his case. Of necessity, it was a question to be decided by the court, who might have directed the jury to find a verdict of not guilty, upon that ground, after all evidence was in. He did not do this, but what was done was practically the same thing. It turns out that he was in error, but it was none the less an acquittal.
The hardship of.this case is apparent, because it is so palpably an escape of a defendant from trial of the merits of his case, as commonly understood, upon a mistake of law; but all mistakes of law are not made so plainly manifest as this has happened to be, by reason of 'the review of the question involved so soon after the discharge of this defendant. The question was not free from difficulty, and was one about which lawyers might reasonably differ. In the minds of many, it is a hardship on society to require.it to submit to the escape of criminals through mistakes of law; and some States have attempted to remedy it by permitting a review of the case at the instance of the State, and subjecting the defendant to a new trial if reversed. This is not the general- rule, however, and the public has usually been compelled to bear the burden of mistakes of courts in criminal cases, under a somewhat technical and perhaps too rigid application of the rule that a person shall not be twice placed in jeopardy for the same offense. Our own Constitution may be thought to have been intended to limit this immunity to cases where the acquittal has been upon the merits. Const, art. 6, § 29. But it was held otherwise in the case of People v. Harding, 53 Mich. 485. It is possible that, in a case like the present one, justice would be better subserved by a refusal to apply the rule; but we consider the law to be too well settled to justify such a disposition of the case.
The conviction and judgment are reversed, and the defendant discharged.
The other Justices concurred. | [
18,
-8,
23,
18,
-44,
-6,
-21,
-65,
-37,
43,
10,
-11,
-23,
31,
-9,
-17,
27,
-31,
54,
-35,
-54,
-23,
27,
3,
4,
-27,
10,
31,
0,
-16,
36,
5,
4,
20,
23,
-49,
34,
34,
21,
4,
-15,
27,
-8,
-24,
-26,
-38,
-23,
14,
-2,
-56,
22,
-24,
-29,
-26,
-44,
-11,
10,
-4,
-9,
-6,
-15,
13,
-21,
0,
-74,
-4,
-17,
-17,
-44,
-25,
-31,
-9,
-8,
-21,
-30,
-45,
-43,
19,
23,
35,
3,
3,
10,
26,
29,
-16,
35,
-51,
4,
-11,
12,
-38,
-60,
-22,
-5,
-10,
45,
15,
77,
-3,
-4,
15,
-24,
-37,
5,
-15,
-50,
-15,
-48,
25,
5,
6,
3,
-42,
-19,
-40,
-1,
-21,
-47,
-26,
54,
-9,
9,
10,
-9,
16,
-20,
14,
44,
-9,
3,
-23,
-17,
-17,
10,
3,
13,
1,
-10,
-13,
8,
-5,
28,
1,
32,
-12,
7,
30,
-43,
12,
8,
11,
1,
4,
40,
1,
-4,
-44,
-5,
22,
-20,
12,
-49,
-35,
-1,
-1,
17,
-6,
-1,
-26,
-7,
42,
-20,
28,
-8,
-35,
-44,
35,
17,
-25,
17,
29,
0,
-11,
37,
19,
-15,
-7,
-5,
-20,
-65,
36,
7,
-22,
51,
-25,
-10,
16,
33,
24,
-21,
-4,
-21,
1,
-23,
14,
43,
-18,
2,
18,
-31,
2,
-17,
-1,
-33,
-29,
36,
-19,
-3,
46,
-39,
20,
23,
-33,
-43,
5,
24,
58,
-3,
40,
-7,
18,
6,
26,
-5,
-42,
56,
12,
56,
14,
-42,
-9,
34,
-27,
19,
-9,
-5,
-9,
-44,
-11,
44,
10,
-1,
4,
-22,
-26,
-4,
-12,
-58,
13,
26,
24,
-11,
-22,
-51,
-14,
65,
53,
-5,
14,
0,
-34,
15,
95,
32,
27,
-35,
0,
-31,
-14,
1,
32,
25,
-1,
-53,
-13,
-28,
26,
32,
13,
-13,
12,
-42,
45,
19,
13,
6,
19,
-31,
-21,
33,
-26,
3,
-5,
-2,
-6,
-2,
43,
-43,
-25,
46,
59,
32,
16,
-7,
7,
-17,
2,
-1,
-25,
-30,
-9,
0,
-41,
-15,
5,
24,
-33,
47,
-7,
35,
4,
-27,
-6,
-20,
30,
-10,
2,
-48,
0,
7,
-30,
-47,
-26,
-20,
24,
-42,
23,
-54,
16,
-21,
-21,
23,
-18,
7,
-22,
-13,
-64,
-11,
-47,
-29,
-34,
-29,
2,
60,
10,
-37,
-13,
32,
32,
6,
-12,
-44,
-4,
-12,
-12,
15,
-30,
-26,
18,
-46,
0,
10,
-41,
-6,
15,
-30,
0,
-12,
8,
-39,
41,
6,
-17,
-4,
-9,
6,
-16,
6,
14,
-8,
29,
27,
-6,
-22,
-13,
15,
-8,
1,
46,
2,
24,
4,
26,
21,
-25,
0,
14,
21,
-21,
7,
-32,
12,
-4,
3,
22,
6,
20,
14,
-65,
-5,
-12,
42,
-29,
-17,
71,
-8,
5,
31,
2,
-8,
-7,
-56,
-14,
9,
2,
21,
-15,
18,
21,
-17,
14,
47,
-25,
11,
57,
49,
-11,
-33,
-18,
0,
0,
-34,
1,
32,
3,
-11,
-43,
-1,
1,
19,
-17,
0,
24,
-21,
25,
41,
14,
6,
8,
10,
18,
4,
6,
50,
15,
15,
-46,
5,
-52,
0,
-20,
8,
24,
15,
12,
-38,
-28,
-40,
81,
19,
5,
-6,
14,
28,
23,
6,
-29,
15,
29,
14,
42,
15,
-41,
-6,
29,
16,
-50,
-3,
15,
27,
-30,
-35,
-40,
-44,
32,
-17,
30,
-6,
-10,
44,
48,
-8,
-23,
32,
-14,
-20,
-36,
2,
-23,
-36,
31,
46,
36,
10,
-2,
-19,
-12,
-3,
35,
-25,
-1,
14,
10,
-58,
36,
-14,
-35,
33,
-26,
-49,
-9,
24,
0,
12,
11,
0,
19,
30,
-34,
19,
-15,
-7,
25,
34,
6,
5,
-10,
9,
-34,
15,
38,
34,
-22,
13,
-10,
-37,
5,
0,
9,
-7,
16,
-11,
-46,
12,
-16,
-33,
-53,
7,
23,
11,
0,
-28,
28,
20,
-15,
35,
20,
-34,
17,
49,
32,
-30,
14,
-2,
26,
11,
-30,
-52,
64,
-2,
19,
-1,
-19,
30,
-25,
-7,
-52,
19,
-55,
-7,
-8,
9,
42,
-28,
-14,
-13,
11,
-13,
5,
8,
16,
-29,
-52,
21,
7,
18,
-16,
44,
-23,
-6,
11,
21,
-52,
48,
-68,
-10,
-27,
63,
-22,
-19,
-1,
-21,
14,
-21,
30,
9,
-30,
-3,
29,
62,
-26,
16,
-4,
10,
-4,
12,
9,
-9,
-43,
4,
-5,
22,
6,
24,
-56,
-13,
30,
-12,
-8,
9,
12,
8,
-4,
0,
0,
43,
-4,
2,
-23,
10,
-14,
34,
28,
6,
-36,
0,
-23,
21,
0,
-20,
-1,
-5,
5,
5,
-14,
-3,
13,
-38,
-11,
27,
-28,
28,
4,
-25,
4,
30,
1,
9,
-50,
62,
-43,
9,
40,
8,
21,
20,
-45,
-9,
38,
-7,
-8,
-48,
-36,
-5,
0,
-15,
-23,
-23,
-17,
73,
-21,
-2,
22,
2,
74,
15,
-85,
-53,
-17,
-3,
48,
-9,
-67,
-9,
57,
-11,
-2,
26,
33,
-4,
-28,
23,
-30,
-8,
46,
-33,
-19,
-30,
-13,
-14,
-30,
-34,
31,
31,
-14,
-22,
24,
-37,
18,
51,
-27,
-76,
22,
5,
-9,
1,
0,
-49,
35,
-6,
5,
8,
6,
-11,
-7,
16,
31,
1,
-20,
8,
29,
19,
-36,
6,
5,
21,
-34,
-1,
-21,
20,
40,
-2,
-33,
-24,
4,
-4,
-31,
6,
25,
50,
-12,
8,
21,
2,
15,
10,
-26,
-14,
-22,
-26,
-20,
15,
6,
23,
-17,
0,
17,
16,
1,
46,
84,
-8,
-13,
-51,
-16,
-15,
-2,
-48,
-5,
9,
25,
5,
-75,
50,
-34,
-1,
-32,
32,
-31,
22,
-5,
-9,
26,
-13,
28,
30,
-20,
6,
20,
-34,
23,
19,
6,
-5,
-51,
-8,
-78,
-23,
-31,
32,
62,
15,
16,
35,
24,
28,
-15,
14,
16,
-3,
-8,
42,
2,
28,
-21,
4,
27,
9,
29,
17,
13,
9,
2,
27,
32,
-17,
0,
28,
-46,
15,
18,
48,
14,
-1,
-9,
15,
-18,
-13,
43,
17,
-16,
-18,
-26,
28,
-5,
12,
-31,
31,
-17,
11,
-41,
-18,
-28,
-33,
9,
-42,
17,
11,
25,
-68,
-15,
60,
-8,
-11,
-12,
5,
24,
11,
-24,
-18,
37,
0,
-4,
-27,
53,
-26,
15,
-25,
52,
38,
40,
-27,
-35,
-9,
27,
16,
-1,
-29,
35,
19,
-33,
-28,
12,
19,
-3,
-4,
-6,
-16,
-35,
26,
31,
26,
4,
-24,
6,
-26,
-51,
-6,
44,
-39,
-8,
-20,
-1,
-6,
-9,
9,
16,
-46,
28,
-11,
-29,
13,
38,
-20,
10,
-47,
2,
29,
16,
-13,
15,
41,
49
] |
Long, J.
March 6,-1897, defendant Claude E. Bedson entered into a contract with complainants, by the terms of which he sold to them a quantity of hemlock saw-logs, upon which complainants admit a total indebtedness of $339.60, but claim a set-off for freight of $185.51. Defendant Bedson, being indebted to defendant Wealthy A. Harvey, assigned to her all moneys due, or to become due, from complainants, and gave her a bill of sale of all logs and wood owned by him. This bill of sale was duly filed in the office of the township clerk. Wealthy A. Harvey assigned this claim to the defendant Joseph J. Harvey, who in turn assigned it to defendant McKay. It is claimed that the complainants had notice of these assign ments. Defendants French & Co. demanded this money from complainants on the ground that they owned the logs sold by Redson to complainants. The other defendants filed claims upon the property for labor liens. Complainants filed this bill of interpleader, and offered to pay the fund into court! On filing the bill, an injunction was issued to -restrain the commencement of suits by the various parties. A motion was made by several of the defendants for a dissolution of the injunction. Others of the defendants demurred to the bill. The motion to dissolve the injunction, as well as the demurrer, were overruled by the court. In the meantime complainants petitioned the court to be allowed to discontinue the proceedings against the lien holders, Carrie E. Redson, James Bowers, Thomas Fowl, David Johnson, and Charles Grosvent, and this motion was granted. The defendants French & Co. answered the bill, and asked for affirmative relief in the answer in the nature of a cross-bill. An answer was filed by complainants to this cross-bill. All the defendants except French & Co. appeal.
It is contended that no injunction nor any other order in a bill for interpleader can be made until the money has been brought into court. It appears that no suits at law had been commenced when the bill was filed, and that those defendants holding labor liens were permitted by the court to perfect such liens. It is the general rule that the party filing a bill of interpleader must offer to bring the money or thing in controversy into court, and, if an injunction is asked for, it will be granted only on condition of his complying with such offer. If an injunction is not granted, it is only necessary to make the offer in the bill, and be in readiness and in a situation to comply with it whenever the court shall • direct the money or other thing to be so deposited. Here an injunction was asked and granted without making a deposit of the money in court. This should have been done before injunction issued, and the injunction must be discharged unless this be complied with. Shaw v. Chester, 2 Edw. Ch. 405; 2 Daniell, Ch. Pl. & Prac. (6th Am. Ed.) *1563, and cases cited in note 10. This omission, however, does not render the bill demurrable. 2 Daniell, Ch. Pl. & Prac. *1563.
It is next contended that the bill was not accompanied by a sufficient affidavit of noncollusion. ' The bill is sworn to by one of the complainants, and states:
“This bill is not filed in collusion with, or at the instance of, any or either of the said defendants, but merely by your orators’ own accord, for relief in this honorable court in the matters and upon the case above stated and set forth.”
The complainants were partners, and it is so stated in the bill. This is a sufficient compliance with the rules of practice. We do not intimate that this case is subject to review on this question.
We think the bill sets up matters calling for equitable relief. The complainants have no interest in the fund, to which there are several claimants. French & Co. claim it, because the timber sold belonged to them when it was sold to complainants. They forbade the payment of the money to Redson or his assignees.
No other question needs discussion. The order below overruling demurrer must be affirmed, and the case remanded for further order as to the deposit of the fund. No costs will be allowed in this court.
The other Justices concurred. | [
0,
35,
9,
30,
35,
19,
25,
-36,
31,
59,
12,
24,
12,
5,
-18,
-12,
-20,
-41,
-4,
3,
11,
-38,
26,
-11,
-53,
-41,
-4,
-18,
-48,
66,
-4,
-6,
-9,
17,
-44,
18,
-3,
-21,
17,
-4,
-18,
13,
22,
-41,
41,
25,
12,
0,
75,
20,
3,
-20,
8,
-26,
-26,
-26,
-26,
5,
19,
32,
24,
-72,
4,
-25,
12,
-35,
11,
13,
16,
-26,
3,
51,
22,
1,
41,
13,
-37,
-44,
-7,
52,
0,
-23,
14,
-44,
-33,
2,
-31,
0,
-9,
24,
-38,
-19,
-1,
14,
35,
-5,
-1,
34,
-35,
4,
28,
-3,
-2,
-23,
-4,
2,
-3,
11,
-4,
39,
20,
-32,
29,
-7,
17,
-37,
-19,
-4,
28,
10,
54,
-4,
26,
-28,
-42,
34,
-23,
-10,
-15,
-10,
49,
-25,
-44,
33,
36,
25,
0,
20,
15,
-18,
48,
3,
-34,
-22,
-15,
1,
-28,
36,
3,
-18,
-27,
44,
40,
-7,
0,
-34,
18,
-30,
60,
-11,
67,
-2,
-16,
-38,
-16,
1,
-24,
-6,
6,
14,
-1,
-10,
-16,
0,
11,
38,
29,
-28,
-46,
3,
29,
-5,
-20,
-11,
33,
-22,
-1,
9,
-10,
17,
57,
-12,
-20,
10,
-22,
-9,
-12,
3,
3,
44,
2,
-46,
-42,
37,
-11,
-25,
31,
16,
-41,
-12,
-26,
12,
-49,
-14,
-28,
62,
-28,
-21,
2,
-50,
48,
18,
22,
17,
-16,
-70,
49,
4,
59,
-12,
-4,
34,
-10,
0,
-51,
-49,
18,
-11,
14,
0,
-43,
-10,
-44,
-42,
-3,
0,
-24,
30,
-14,
29,
-28,
0,
-8,
23,
-24,
11,
-24,
-3,
-21,
-26,
-13,
0,
0,
0,
36,
-44,
16,
20,
-30,
29,
-5,
-20,
50,
-28,
-53,
-16,
-4,
-22,
-9,
-22,
9,
-14,
-36,
-2,
-3,
16,
-39,
20,
-21,
-33,
25,
-5,
7,
-17,
42,
61,
-9,
-32,
34,
0,
-49,
-36,
-20,
-54,
-13,
40,
-8,
-28,
-24,
19,
-12,
-36,
0,
-48,
9,
-5,
-32,
13,
-24,
-47,
37,
11,
-1,
21,
18,
47,
15,
14,
-14,
-6,
18,
-26,
11,
-24,
-16,
27,
-7,
-35,
-11,
4,
12,
38,
-3,
42,
-18,
1,
22,
-42,
25,
-9,
0,
-22,
-25,
39,
21,
-7,
-10,
-24,
-15,
47,
34,
24,
19,
-25,
25,
-34,
-17,
-10,
28,
27,
-28,
15,
-11,
15,
-28,
-12,
-65,
-7,
-9,
28,
46,
5,
6,
14,
37,
5,
-14,
-50,
1,
43,
-41,
8,
2,
30,
15,
-16,
-3,
-55,
-57,
17,
24,
22,
39,
16,
-31,
28,
-22,
-13,
-4,
17,
0,
-20,
-20,
-42,
-26,
-46,
16,
-5,
40,
25,
81,
25,
17,
9,
74,
-36,
54,
3,
43,
54,
-28,
9,
17,
6,
-2,
-21,
-13,
-24,
-36,
0,
-25,
0,
20,
1,
26,
-17,
-36,
9,
47,
-31,
-13,
16,
-21,
15,
12,
52,
-9,
-36,
35,
-9,
-5,
3,
-9,
17,
5,
14,
22,
-8,
20,
32,
-10,
-3,
55,
1,
-61,
-4,
8,
-36,
0,
7,
22,
19,
-10,
33,
-17,
-37,
13,
-2,
-8,
-42,
59,
-2,
-17,
1,
18,
3,
-37,
-36,
41,
61,
-6,
-18,
12,
7,
4,
10,
-5,
33,
15,
76,
5,
-23,
12,
-26,
-14,
47,
7,
15,
31,
23,
43,
-3,
-25,
27,
-1,
-6,
12,
-6,
7,
35,
-11,
-19,
-17,
-27,
3,
25,
-10,
1,
-44,
-29,
-16,
41,
43,
-19,
12,
-3,
-18,
-27,
22,
11,
-35,
-18,
51,
1,
-21,
80,
-8,
-38,
-4,
30,
26,
-50,
2,
-52,
40,
-13,
18,
-23,
12,
20,
17,
28,
10,
41,
-9,
10,
-70,
-7,
15,
12,
-51,
-47,
17,
-38,
8,
-33,
32,
-1,
-9,
-5,
22,
-13,
-2,
-18,
-12,
-20,
20,
18,
62,
29,
-8,
-23,
-22,
-42,
-8,
12,
-34,
37,
18,
17,
15,
36,
28,
7,
42,
9,
-16,
-58,
7,
27,
62,
-49,
1,
1,
-16,
22,
-1,
-16,
-62,
21,
-40,
-23,
-18,
20,
0,
61,
7,
45,
-27,
-5,
-31,
-35,
-18,
-56,
-30,
-1,
-34,
15,
-46,
-28,
9,
1,
57,
22,
-40,
-1,
16,
3,
0,
-6,
54,
-34,
11,
46,
-20,
-13,
3,
-23,
8,
21,
38,
-38,
27,
-10,
-13,
-47,
-19,
4,
20,
-3,
0,
19,
41,
-14,
-23,
17,
23,
3,
-32,
-1,
-15,
-21,
-43,
2,
-14,
28,
16,
-6,
23,
-12,
0,
38,
-25,
19,
-36,
25,
-12,
-6,
-5,
-13,
21,
-48,
1,
2,
8,
42,
16,
-18,
-8,
-52,
-6,
-46,
14,
-23,
6,
-10,
8,
-13,
-12,
20,
-13,
68,
-5,
-13,
27,
-15,
-40,
32,
-13,
-31,
21,
-40,
-30,
3,
34,
-22,
-7,
-8,
29,
-19,
24,
3,
-11,
19,
20,
-44,
-68,
-41,
-36,
-12,
37,
-8,
13,
-21,
-36,
-39,
-45,
-5,
28,
-33,
-8,
16,
-63,
-48,
64,
-40,
6,
33,
31,
32,
32,
-46,
-7,
-11,
-24,
-58,
14,
-47,
25,
-15,
-4,
-22,
18,
-23,
-75,
16,
-38,
3,
6,
-30,
-55,
14,
-14,
57,
-12,
42,
-10,
-3,
-16,
-4,
-32,
-8,
-5,
-33,
-26,
30,
-27,
9,
36,
61,
-33,
27,
14,
-9,
36,
-8,
-7,
-3,
-8,
-7,
40,
-30,
-10,
-23,
65,
-19,
18,
-42,
11,
-23,
8,
13,
8,
-12,
21,
-32,
1,
29,
-29,
-10,
-4,
-2,
-17,
-12,
-49,
-23,
30,
-24,
8,
38,
29,
-16,
-8,
-36,
-12,
-35,
-23,
-15,
11,
5,
16,
-10,
-19,
-1,
20,
4,
-18,
-21,
22,
8,
-43,
11,
-27,
23,
-4,
26,
49,
-56,
19,
17,
-11,
3,
-18,
7,
2,
-26,
-15,
-42,
-42,
8,
26,
27,
28,
21,
-28,
-19,
-30,
19,
-19,
50,
49,
-9,
28,
-18,
-46,
33,
8,
48,
-54,
0,
-2,
-35,
-18,
41,
0,
12,
27,
-3,
-6,
49,
-19,
-32,
18,
29,
6,
-38,
41,
-57,
28,
-3,
15,
-1,
-4,
10,
0,
-4,
32,
21,
-10,
26,
-5,
22,
25,
49,
-41,
-25,
-52,
-16,
-27,
-15,
-7,
15,
40,
29,
4,
36,
42,
40,
3,
-33,
-21,
24,
-22,
18,
11,
2,
3,
-22,
-9,
-10,
55,
-30,
-36,
20,
15,
-21,
-1,
-18,
-4,
2,
29,
9,
43,
-7,
7,
-40,
-9,
-14,
-27,
-39,
35,
-3,
22,
35,
34,
-12,
20,
43,
13,
-33,
-62,
4,
52,
12,
-12,
18,
6,
-9,
8,
-27,
65,
13,
30,
18
] |
Long, J.
On December 29, 1895, defendant filed his bill for divorce against complainant on the ground that she had been guilty of many acts of cruel treatment. Complainant answered this bill, and a replication was duly filed by defendant. It appears that on December 28, 1895, the complainant had filed her bill for separate maintenance and for divorce from bed and board against the defendant on the ground of cruel treatment. Defendant answered that bill, and a replication was duly filed. These two cases were heard together in open court, and a decree was made finding that the allegations in the complainant’s bill were true, and decreeing an absolute divorce under such bill. The complainant filed a written protest in the cause against the entering of a decree for absolute divorce, and entered a motion to modify the decree in that respect. This motion was denied, and the absolute decree was duly entered. The court also decreed that the defendant pay to complainant the sum of $700, with the costs of the proceeding. This appears to be, at least, the value of one-half of the property owned by defendant, and is made a lien upon his property. The complainant appeals.
The only question we need discuss is whether the court should have decreed an absolute divorce. We think the proofs warrant such a decree, and the character of the decree rests in the sound discretion of the court. Sullivan v. Sullivan, 112 Mich. 674.
The decree is affirmed.
The other Justices concurred. | [
8,
-7,
9,
33,
-34,
-21,
3,
-19,
24,
9,
-14,
-5,
5,
-17,
-3,
-40,
-47,
-26,
-23,
8,
-31,
32,
0,
-12,
31,
50,
40,
9,
-9,
38,
7,
-21,
-39,
24,
-14,
-50,
-1,
-8,
-13,
3,
12,
-34,
52,
11,
-67,
-13,
-10,
0,
-35,
3,
-46,
-38,
6,
-24,
28,
13,
-68,
-30,
1,
-4,
-25,
13,
7,
4,
10,
-2,
20,
-8,
-39,
-47,
45,
26,
-5,
-25,
-27,
-7,
-7,
-59,
-30,
80,
-22,
-45,
22,
3,
-15,
-46,
4,
-1,
-46,
15,
-39,
-10,
-48,
-2,
-34,
-21,
5,
3,
57,
52,
-9,
-33,
-3,
27,
-5,
8,
0,
-9,
-53,
0,
31,
-26,
63,
23,
0,
-9,
-16,
-23,
15,
-79,
18,
45,
16,
-39,
-1,
-2,
-22,
-42,
23,
-7,
-13,
9,
-8,
-7,
69,
-41,
32,
6,
0,
-63,
27,
-6,
28,
0,
-14,
28,
-46,
1,
-14,
-22,
-8,
-7,
24,
36,
62,
0,
-45,
-53,
-6,
-22,
48,
14,
-73,
-33,
6,
-26,
-46,
25,
26,
26,
22,
-32,
-79,
34,
0,
41,
-12,
-26,
-19,
-6,
12,
90,
7,
-21,
26,
31,
-16,
2,
-32,
0,
25,
-13,
10,
34,
15,
-1,
48,
22,
14,
38,
-16,
12,
-27,
45,
51,
11,
24,
44,
-26,
7,
0,
40,
-15,
14,
-45,
13,
56,
-24,
-40,
30,
20,
13,
-25,
11,
-69,
-94,
23,
23,
61,
16,
-28,
19,
-10,
-52,
6,
12,
-65,
34,
4,
-21,
-22,
12,
-36,
-32,
17,
42,
-42,
17,
6,
11,
2,
6,
-3,
30,
9,
-3,
12,
25,
24,
23,
-19,
-3,
-8,
3,
54,
-15,
26,
-6,
5,
1,
9,
-19,
-4,
-20,
17,
-8,
-40,
5,
-37,
-9,
25,
46,
-7,
-19,
-29,
-12,
-20,
25,
7,
-19,
36,
-40,
23,
-24,
34,
38,
-50,
-10,
-15,
19,
43,
-72,
-1,
-2,
-19,
4,
20,
-46,
-55,
-24,
-60,
-7,
52,
-21,
18,
21,
-54,
23,
16,
-19,
35,
27,
20,
-25,
18,
21,
43,
-1,
-38,
25,
-21,
1,
28,
-17,
30,
7,
11,
-16,
-9,
-7,
6,
9,
51,
17,
-34,
-4,
12,
-3,
73,
20,
-45,
-10,
-51,
71,
-58,
-4,
-39,
-32,
-19,
23,
-10,
23,
-50,
-49,
19,
-16,
0,
-24,
18,
30,
-5,
-4,
-19,
35,
-8,
33,
-12,
-14,
18,
39,
3,
31,
-36,
37,
18,
-9,
-18,
-72,
50,
-39,
-13,
26,
5,
-33,
26,
14,
41,
-17,
-65,
5,
-43,
-13,
33,
22,
-60,
62,
19,
10,
-43,
42,
39,
-43,
-8,
-11,
-3,
17,
0,
-58,
19,
-15,
12,
17,
7,
21,
-14,
-77,
9,
-31,
56,
25,
-29,
31,
15,
8,
11,
-12,
-28,
-24,
-3,
16,
-30,
52,
-41,
20,
6,
27,
-28,
14,
25,
-19,
8,
-68,
-40,
17,
15,
-25,
-21,
-6,
14,
5,
14,
9,
-23,
-3,
3,
-31,
-5,
9,
11,
-26,
-28,
-48,
7,
62,
13,
17,
-12,
27,
-34,
-10,
2,
0,
-3,
33,
7,
-18,
-22,
-47,
-62,
-52,
14,
-37,
-4,
36,
-8,
-42,
-9,
-44,
-13,
23,
-22,
35,
71,
-5,
-9,
17,
-32,
57,
50,
55,
-30,
-24,
72,
33,
-39,
11,
23,
20,
26,
-26,
-18,
3,
4,
-49,
-35,
-20,
54,
-21,
-34,
43,
61,
51,
-30,
-48,
-15,
42,
-44,
-52,
26,
-14,
-17,
43,
5,
22,
79,
45,
11,
-36,
-53,
17,
9,
-58,
31,
-7,
-6,
-22,
55,
19,
-33,
-17,
33,
-37,
-11,
-3,
-20,
-12,
21,
2,
21,
15,
-3,
9,
-23,
3,
49,
10,
-28,
17,
-33,
-23,
36,
-14,
32,
-12,
3,
-37,
-23,
7,
-11,
-12,
-30,
14,
24,
2,
7,
-72,
24,
24,
30,
27,
-11,
-18,
6,
-63,
-30,
19,
-63,
44,
20,
-13,
13,
17,
0,
25,
-12,
26,
-7,
-5,
-15,
-7,
40,
27,
37,
-23,
-36,
-3,
77,
-13,
-21,
-4,
-41,
0,
41,
33,
-8,
54,
3,
13,
0,
-30,
-17,
36,
-20,
-13,
-44,
46,
-9,
-15,
-45,
10,
47,
3,
1,
3,
16,
-27,
66,
-43,
-10,
30,
22,
-1,
45,
41,
2,
1,
19,
5,
-12,
40,
25,
-19,
39,
9,
48,
-12,
-22,
-38,
-6,
14,
-31,
-22,
15,
25,
24,
85,
56,
20,
23,
-20,
-12,
-7,
-13,
36,
11,
63,
64,
26,
4,
45,
6,
14,
39,
7,
-25,
19,
29,
0,
-35,
-21,
-8,
7,
11,
-31,
-2,
4,
79,
27,
-9,
-65,
-82,
6,
7,
-8,
-28,
-34,
-47,
-23,
4,
30,
5,
36,
-16,
-14,
-60,
16,
-7,
10,
-27,
-28,
21,
-23,
-6,
-33,
33,
0,
-32,
-41,
13,
55,
8,
30,
18,
-15,
4,
15,
10,
-49,
-27,
-30,
0,
68,
-54,
24,
-39,
29,
33,
-5,
20,
-4,
2,
1,
-12,
-37,
18,
-20,
44,
8,
10,
-51,
32,
-29,
-10,
-5,
-4,
-38,
25,
-43,
10,
15,
-43,
-14,
46,
-6,
27,
55,
-51,
-35,
-48,
-33,
8,
9,
-8,
-5,
-39,
28,
-59,
-11,
-49,
19,
-23,
30,
-26,
-25,
-32,
17,
-10,
23,
-18,
13,
46,
44,
-7,
23,
52,
-21,
-1,
35,
8,
11,
40,
21,
18,
-13,
-18,
10,
32,
0,
-30,
0,
-40,
4,
12,
-7,
37,
38,
41,
39,
32,
-3,
13,
-18,
-5,
3,
-49,
-30,
8,
6,
-4,
11,
-33,
-1,
0,
-68,
22,
41,
-3,
5,
61,
-12,
-12,
-72,
-33,
-22,
-20,
2,
30,
-60,
-58,
20,
7,
-75,
-70,
6,
-8,
55,
17,
-19,
-56,
5,
17,
-22,
50,
-25,
-28,
-15,
-10,
-16,
-20,
-23,
-58,
13,
10,
-24,
37,
-22,
-54,
28,
43,
33,
70,
3,
0,
-18,
0,
41,
10,
28,
-39,
-51,
27,
8,
-11,
26,
12,
44,
-4,
-35,
-19,
34,
11,
-80,
0,
10,
-5,
4,
-19,
-3,
73,
11,
10,
25,
30,
6,
-1,
35,
13,
-45,
46,
-30,
-35,
57,
17,
-6,
-34,
-28,
13,
16,
-71,
17,
-40,
1,
28,
13,
-5,
-9,
58,
29,
-24,
-23,
-18,
-46,
-40,
-18,
-38,
17,
37,
-26,
-12,
-28,
19,
-34,
-9,
3,
-40,
2,
-18,
-5,
-47,
10,
34,
-35,
32,
-18,
20,
-30,
-16,
0,
18,
12,
-30,
-6,
-36,
0,
14,
-42,
25,
52,
-34,
1,
-21,
25,
15,
90,
-20,
24,
-19,
-20,
28,
-8,
11,
3,
45,
38
] |
Montgomery, J.
This is a proceeding by bill in chancery to compel the abatement of a nuisance. The alleged nuisance consists of the steamer Milton D. Ward, which lies aground in Detroit river, near what is known as the Water Works Park. The complainant is a corporation authorized to sue and be sued, and has been by statute authorized to accept as a gift a sum of money devised to the board to be used for the purpose of .beautifying and ornamenting the grounds. The grounds devoted to a park have a frontage on Detroit river of about 1,000 feet, and are kept open to the public as a park known as the Water Works Park. The land is also used for the general purposes of the corporation. In the summer of 1892 an epidemic of cholera was threatened. The board of health of Detroit assumed to make a contract with defendant Grummond, the owner of the Milton D. Ward, to lease of him the steamer, with the privilege of buying. This contract was not definitely authorized by the common council, hut the board of health actually took possession of the boat, and admittedly retained it in possession for nearly two years, when it caught fire through the neglect of its servants, and the upper works were burned away. The board of health offered to return the boat to defendant Grummond, but, as his contract contained a condition that it should be returned to him in like condition as when taken, he declined to receive it in its damaged state. The boat was at this time moored at the waterworks dock. The board of health, and the water board as well, notified the defendant Grummond to remove it, but he declined to receive it, and brought an action against the city for its value, which is still pending. The boat remained moored at the dock for a year after the damage from fire, when a member of the water board secured a moorage for her at some distance away, and in front of Field & Kean’s, where she remained for another year. On August 4, 1896, she was towed back to her present position, partly in front of Water Works Park and partly in front of adjoining property, where, after a time, she filled with water, and sank in six or eight feet of water. The evidence is not satisfactory as to the authority by which she was taken from Field & Kean’s to her present position; but if it be assumed that she was returned by the same authority which moved her away from in front of the Water Works Park in the first instance, we think the responsibility for her presence there was not thereby shifted from the board of health to the water board of the city.
The questions which are raised are:
(1) Whether this wreck is a nuisance.
(2) If a nuisance, is it a private nuisance, such as the complainant has the right to have abated at its private suit ?
(3) Is the defendant Grummond or the city, either or which, responsible for the nuisance ?
It is contended on behalf of defendants that the wreck is not a nuisance, and authority is cited which sustains the proposition that if a ship or other vessel sink by accident, and without neglect or fault, in a river, and is abandoned by the owner, such owner is not bound to remove it as a nuisance. Winpenny v. City of Philadel phia, 65 Pa. St. 135, sustains this view. The reason for the rule is there stated as follows:
“When a vessel is lost by the act of God or by accident, the owner suffers oftentimes great damage; and, when she is a total loss, it seems a great hardship to add to his misfortune the duty of removing the wreck. It would discourage commerce to hold him to so severe a duty; for who would engage in trade if, when he has lost his vessel, he might be forced to incur an expense of more than her original cost in removing the wreck from some difficult position? If compelled by the accident to abandon his property, the duty of removal should rather fall on the public, who are interested in the navigation, than on him.”
This case does not show the existence of these reasons for exemption. This sunken wreck is not the result of an accident. After all the injury which can be claimed to have resulted from accident had occurred, the boat was still afloat, and might easily have been removed. She subsequently sank because water-logged, and because she was abandoned. She was not abandoned because she had sunk.
Is this complainant entitled to maintain this bill to abate this nuisance ? It is well settled that a public nuisance does not furnish grounds for an action by an individual. The complainant in this case, while charged with public functions, does not represent the public generally in the matter of the protection of the highway or river adjacent to the city. This is not claimed on its behalf, but it is contended that it has the same rights that an individual has; and this proposition, we think, is sound, in so far that, for any infringement of its property rights, the complainant would have the same right to seek redress as an individual. The question recurs, Would an individual have the right to maintain this bill to compel the abatement of this nuisance ? It is true, a public nuisance may at the same time be a private nuisance, and an individual who suffers peculiar damages — that is, damages peculiar to himself — -may have his action; but, before such action can be maintained, it must be shown that the damage -which, the complainant suffers differs not only in degree, but in kind, from that which must be deemed common to all. This case shows not only a nuisance by obstruction to navigation, but an incumbrance of complainant’s property, as for many purposes the ownership of complainant extends to and includes the place where this wreck is. Lorman Benson, 8 Mich. 18 (77 Am. Dec. 435); Hall v. Alford, 114 Mich. 165, and cases cited. That one who owns the fee of a highway obstructed by a nuisance may maintain an action appears to be settled. 2 Wood, Nuis. (3d Ed.) § 697, and cases cited.
The question remains as to which of the defendants, if either, is responsible for this nuisance. As before stated, we think the removal of the vessel for a time, and its subsequent return, do not affect the responsibility. We do not think the question of. the validity of the contract between the city and defendant Grummond involved, in so much as the bill alleges such a contract to have been made, and the answer of the defendant Grummond admits it. The important fact is that the city, through its board of health, took actual possession of the boat, and retained possession for two years. Responsibility for a negligent or wrongful disposition of the property cannot be avoided by repudiating the contract by which possession was acquired. Has the city relieved itself of responsibility by offering to return the boat to defendant Grummond ? We think not. There can be no claim that Grummond assumed actual possession of the property, and until he did, or until he was willing to receive it into his possession, the responsibility to third persons was the responsibility of the city. The circuit judge was of this opinion, and granted relief against the city alone. We affirm this decree.
The other Justices concurred | [
-28,
35,
37,
-21,
21,
48,
3,
-23,
23,
-43,
18,
-6,
2,
78,
15,
-7,
-16,
-26,
-16,
0,
55,
17,
-22,
-73,
-42,
49,
20,
-42,
12,
-7,
-2,
-1,
0,
54,
-4,
10,
-24,
-21,
61,
3,
-7,
8,
13,
6,
77,
64,
51,
38,
42,
-7,
-23,
28,
-10,
-12,
-76,
-37,
-46,
-2,
-23,
-1,
-79,
-49,
29,
44,
0,
14,
-27,
-10,
-3,
-1,
0,
42,
-6,
-5,
11,
6,
42,
-75,
25,
8,
-24,
66,
7,
-23,
-68,
-25,
20,
23,
54,
0,
-19,
-27,
-41,
23,
-18,
-23,
-5,
-9,
0,
16,
4,
30,
-12,
24,
1,
-32,
21,
-25,
-12,
-13,
13,
27,
22,
-28,
37,
-24,
48,
-26,
3,
41,
18,
-34,
3,
5,
-42,
27,
-40,
0,
14,
34,
18,
-26,
3,
-29,
45,
9,
-25,
29,
37,
75,
32,
36,
-2,
-13,
-44,
31,
0,
24,
-28,
-29,
10,
40,
18,
-53,
36,
27,
15,
-50,
58,
79,
-45,
-13,
18,
-30,
-55,
-8,
-14,
3,
28,
25,
-2,
-8,
-2,
10,
-22,
-13,
-36,
-2,
-30,
9,
52,
-43,
-13,
0,
-14,
-57,
36,
-61,
-56,
24,
52,
-64,
-58,
6,
-19,
60,
-1,
-21,
-18,
10,
-32,
6,
-83,
-11,
16,
19,
-22,
4,
-5,
47,
-3,
38,
55,
-41,
-19,
34,
65,
-11,
-46,
-1,
20,
-21,
11,
62,
-6,
-23,
-38,
12,
62,
24,
7,
-8,
19,
32,
-6,
42,
7,
59,
33,
-10,
-26,
73,
8,
7,
-5,
-54,
-22,
20,
-3,
36,
-31,
-64,
12,
14,
10,
35,
-7,
8,
31,
-15,
1,
18,
-3,
-49,
24,
-19,
-28,
0,
25,
29,
-23,
31,
8,
-19,
-28,
-26,
-27,
41,
13,
58,
-82,
-17,
-39,
31,
17,
0,
-15,
-27,
-45,
12,
-9,
57,
7,
3,
5,
-2,
-1,
0,
0,
-15,
19,
41,
-8,
-31,
0,
10,
-27,
60,
14,
-39,
-11,
43,
-40,
21,
-27,
30,
27,
27,
10,
10,
31,
49,
-33,
30,
-55,
-3,
33,
4,
-28,
10,
61,
40,
-5,
-4,
-49,
39,
80,
-35,
-17,
6,
10,
41,
45,
-23,
-20,
12,
29,
-42,
15,
-17,
-55,
32,
-8,
-27,
20,
12,
-6,
9,
-5,
68,
28,
54,
2,
-2,
34,
-65,
-10,
-3,
32,
-2,
19,
15,
-59,
37,
-11,
-26,
10,
5,
-32,
26,
15,
-21,
58,
21,
12,
19,
-7,
6,
-21,
40,
-18,
-1,
-12,
66,
25,
-18,
-24,
4,
-26,
-7,
59,
7,
-32,
49,
-4,
12,
34,
-35,
51,
-3,
-46,
-17,
36,
-26,
17,
-32,
-7,
-10,
-9,
-18,
20,
-2,
3,
-8,
-30,
-19,
79,
-2,
38,
-20,
-10,
-6,
21,
36,
-57,
31,
-57,
-35,
-15,
-12,
30,
2,
-31,
5,
-20,
-4,
24,
19,
7,
-8,
43,
71,
-19,
35,
-3,
46,
-14,
32,
45,
9,
-72,
-18,
-12,
30,
-77,
71,
22,
8,
26,
3,
-55,
29,
20,
-75,
-53,
-17,
-27,
33,
9,
18,
21,
30,
0,
50,
-50,
-19,
-22,
-9,
-8,
-13,
37,
-29,
-5,
6,
67,
12,
-36,
-9,
0,
-19,
54,
-13,
-15,
23,
-13,
14,
-20,
19,
55,
18,
-8,
-34,
2,
-13,
16,
38,
21,
-9,
71,
-16,
37,
23,
-52,
16,
2,
5,
-2,
-41,
28,
-30,
39,
-70,
-38,
10,
-59,
-44,
-16,
42,
6,
14,
-15,
1,
17,
8,
-13,
-17,
-9,
0,
0,
-6,
-21,
-13,
10,
6,
-23,
35,
-32,
-46,
6,
75,
-46,
-7,
1,
-45,
4,
17,
43,
-42,
23,
-3,
-10,
28,
14,
-1,
6,
0,
-23,
0,
-1,
33,
-34,
-57,
-7,
-57,
-7,
25,
4,
-39,
-71,
-18,
-34,
-20,
-39,
9,
-15,
42,
-18,
34,
-19,
-14,
17,
-34,
-6,
-8,
-21,
13,
-40,
-40,
10,
-1,
9,
-23,
-1,
-14,
-14,
42,
-14,
9,
30,
20,
-64,
-16,
0,
0,
7,
-26,
18,
-50,
6,
19,
-31,
20,
9,
1,
28,
-24,
29,
51,
5,
19,
-51,
40,
-35,
-17,
-43,
11,
-4,
4,
-33,
-25,
-9,
-7,
15,
28,
49,
-14,
35,
14,
9,
-35,
11,
-26,
-1,
-9,
-6,
-4,
-24,
31,
-72,
-35,
17,
0,
-7,
15,
21,
-22,
-25,
17,
9,
19,
9,
14,
-14,
-25,
47,
1,
53,
-39,
-16,
-6,
12,
-53,
20,
-26,
69,
4,
27,
12,
14,
-26,
26,
-26,
39,
51,
-22,
-1,
-18,
-41,
-21,
-75,
44,
-29,
34,
-40,
16,
-7,
-12,
-21,
-4,
-1,
-12,
-23,
-21,
34,
-74,
23,
-30,
26,
-68,
-29,
-27,
-8,
29,
5,
18,
-16,
-28,
-19,
-44,
-44,
18,
18,
17,
-10,
-39,
-36,
4,
2,
-13,
1,
4,
-41,
-36,
20,
2,
-38,
-25,
-12,
-18,
-2,
-5,
10,
28,
-5,
-9,
15,
13,
0,
23,
-16,
18,
20,
32,
-42,
34,
-30,
-28,
8,
10,
8,
-29,
-83,
-21,
-22,
-49,
-31,
3,
20,
11,
-36,
0,
-39,
12,
9,
3,
-14,
29,
0,
-5,
-29,
-20,
-7,
2,
29,
-23,
-20,
-13,
-6,
-12,
-24,
-59,
-24,
-11,
14,
34,
-53,
-41,
9,
-18,
4,
-20,
33,
-9,
10,
58,
12,
25,
-37,
-2,
-36,
68,
-16,
27,
24,
-16,
35,
26,
16,
48,
-38,
-73,
-16,
16,
-22,
-37,
-28,
-43,
6,
-57,
37,
-6,
42,
-32,
-14,
-13,
-21,
12,
-27,
64,
-50,
20,
14,
38,
-8,
-6,
46,
-13,
-40,
-17,
-43,
39,
28,
-62,
-3,
12,
26,
-36,
-75,
25,
17,
20,
-74,
-1,
-23,
-22,
-6,
-9,
-39,
-8,
24,
23,
-21,
31,
3,
-17,
30,
-11,
29,
32,
-30,
-15,
-45,
39,
-15,
-73,
-14,
-7,
-52,
4,
-14,
0,
-30,
-17,
28,
-23,
-12,
-38,
35,
34,
45,
12,
-41,
35,
12,
-48,
-5,
-18,
31,
2,
39,
-26,
-43,
13,
17,
2,
-49,
49,
-25,
-2,
-1,
36,
-33,
-16,
35,
23,
13,
36,
-38,
32,
36,
39,
11,
10,
16,
-33,
12,
-27,
26,
-21,
-12,
26,
1,
-39,
56,
-10,
-27,
19,
-20,
-5,
-10,
-4,
20,
-23,
-18,
13,
12,
-18,
-39,
32,
-43,
24,
18,
-7,
-3,
15,
-7,
9,
-22,
-21,
-16,
-22,
-4,
17,
-32,
-14,
-28,
-34,
23,
-4,
3,
19,
15,
-12,
37,
15,
35,
26,
49,
-11,
-16,
5,
39,
43,
55,
-76,
19,
-17,
17,
6,
3,
60,
-8,
-46,
70
] |
Montgomery, J.
As the record shows, the sole question in this case is whether the city of Detroit is liable to respond to a person injured by reason of a defective sidewalk on the boulevard. The learned circuit judge was of the opinion that no such liability exists, and stated his reasons therefor in his charge, from which we quote. Referring to Act No. 264, Pub. Acts 1887 (3 How. Stat. § 1446c et seq.), fixing liability of municipalities for defects in ways, including sidewalks, he said:
“It seems to me very clear that this law applies to public highways where the city or the village or the town ship has control over them, and has neglected to do what it should have done to put them in proper condition for public travel. Now, let us see whether or not the boulevard of the city of Detroit is, according to the spirit of this act, and according to the letter of this act, a public highway. The boulevard of the city of Detroit was under the control of officials appointed by the township and by the city, because at that time, when it was first laid out, it was partly outside of the limits of the city; and that act contained an express provision that the municipal corporations concerned should not be responsible for the neglect of these commissioners, so that, if the act stated now as it did then, there could be no question. But in 1889 that law was changed, because in the meantime the boulevard had been entirely taken in the city, and it was the opinion of the legislature that some other body than the body then in existence should take care of it. By that act a park and boulevard commission was created, to be appointed by the mayor, and whose appointments were approved by. the council. Now, that act gives to those commissioners the control of these boulevards, or this boulevard, as well as the parks. It gives this commission the power to make rules and regulations as to the sidewalks, and as to their width and location, and power to prescribe the material of and manner in which they shall be constructed. In other words, thése commissioners have vested in them by this act the power to determine what kind of sidewalks shall be made, and the power to determine when those sidewalks shall be repaired; so that the city has not any direct authority over the making of sidewalks in the first instance, or over their repairs subsequently. Neither has the city reserved to it by this act any power of exercising any direct supervision over these walks. The park and boulevard commission has just as much authority within its proper jurisdiction as has the common council, so that the city of Detroit has no right of its own volition to in any wise control these sidewalks. In otherwords, wecannot suppose that the legislature intended to make the city of Detroit responsible for the care of something when it has not the power to remedy it, and that would be the effect of extending this law to it. Of course, it may be said that equitably there would be just as much reason for it. Perhaps that is true.”
We think the circuit judge was at fault in his premises. In 1889, by an act entitled “An act supplemental to the charter of the city of Detroit,” etc., the control of the boulevard was placed in the hands of the commissioners of parks and boulevards. Act No. 388, Local Acts 1889. This was a city agency, and it is error to assume that because the control of the boulevard was vested in such a. body, rather than the common council, the enterprise was any the less a city enterprise. The city may act through such agencies as the legislature directs. People v. Hurlbut, 24 Mich. 69 (9 Am. Rep. 103); Turner v. City of Detroit, 104 Mich. 326; Robinson v. City of Detroit, 107 Mich. 168; Barnes v. District of Columbia, 91 U. S. 540.
Was the boulevard a “street” or “highway,” within the meaning of this act ? At the point where plaintiff received her injuries, it is about 150 feet in width, about ■60 feet of which is graded. The remainder of the space is occupied by grass plots and sidewalks. At the time of the injury in question, the graded portion was open to travel -without distinction. Since that time heavy teaming over this way has been prohibited. It is worthy of note that in 1893 the legislature added a section to the “Boulevard Act,” so called, in which it was provided that, in case of a recovery against the city because of the dangerous condition of a sidewalk, a recovery might, under certain conditions, be had against the abutting owner. Act No. 415, Local Acts 1893. While the circuit judge justly observes that the fact that the legislators thought the law was in a certain condition does not make the law that way, unless as a matter of fact they were correct in the views they held, yet a legislative construction of previous legislation is entitled to more or less weight with the judiciary; and in this case we are inclined to adopt the same view that the legislature apparently entertained. Certainly, this boulevard had all the characteristics of a highway. It furnished all the conveniences of a street to the traveling public which an ordinary street offered, and it was equally inviting to the public. The fact that more than the usual space was devoted to lawn on either side distinguished it from the ordinary street only in degree. While no cases are cited distinctly covering this question, we think the boulevard falls within the general description of a street or highway. Elliott, Roads & S. 1, 18. It has generally been referred to by this court as a street. Commissioners, etc., v. Detroit, etc., R. Co., 93 Mich. 59; Same v. Chicago, etc., R. Co., 91 Mich. 292.
The judgment will be reversed, and a new trial ordered-
The other Justices concurred. | [
-60,
40,
22,
-22,
-15,
13,
-7,
-25,
30,
27,
-1,
1,
17,
0,
-12,
9,
-25,
20,
-32,
34,
-14,
0,
26,
-42,
-10,
11,
64,
-21,
3,
15,
37,
-6,
7,
83,
-12,
15,
34,
0,
70,
50,
29,
49,
-11,
-40,
35,
24,
53,
0,
7,
-49,
-59,
59,
-6,
0,
-32,
-25,
-25,
43,
-51,
-34,
-54,
-4,
-4,
-8,
38,
-21,
-4,
3,
27,
-38,
-31,
42,
-23,
-25,
17,
26,
24,
-39,
-10,
-21,
-12,
-10,
26,
8,
18,
-2,
4,
13,
-28,
-35,
8,
-13,
52,
28,
0,
21,
0,
7,
-5,
-50,
28,
52,
12,
24,
-5,
-21,
0,
-88,
-12,
14,
16,
19,
-20,
-20,
0,
15,
38,
4,
12,
23,
13,
-8,
-11,
-10,
-28,
39,
-42,
3,
-3,
2,
4,
-12,
31,
-20,
-4,
1,
-43,
34,
49,
70,
-11,
8,
25,
-34,
-72,
20,
-51,
18,
-18,
-27,
34,
-40,
34,
-50,
-14,
-2,
-6,
-23,
99,
12,
22,
-11,
3,
-24,
-40,
-6,
-64,
46,
0,
47,
26,
-15,
42,
-35,
45,
-18,
-14,
17,
-37,
5,
14,
9,
25,
-12,
-12,
-47,
-20,
-42,
22,
-27,
29,
4,
-24,
-35,
0,
32,
33,
-2,
33,
-34,
-39,
-25,
-57,
-37,
-10,
35,
-46,
6,
17,
50,
3,
41,
7,
-2,
52,
-3,
61,
-67,
-5,
9,
6,
32,
19,
-6,
-10,
-3,
-30,
-3,
-7,
-17,
38,
3,
33,
5,
25,
23,
3,
3,
-42,
22,
42,
79,
-24,
-1,
-8,
27,
-3,
-22,
2,
2,
22,
-16,
16,
-69,
-22,
19,
3,
0,
-5,
-17,
19,
52,
37,
21,
46,
23,
10,
58,
-28,
-2,
-18,
7,
-27,
2,
-54,
-44,
31,
15,
19,
34,
-63,
-36,
2,
13,
17,
36,
-37,
21,
-24,
-36,
13,
-39,
0,
53,
-36,
76,
57,
0,
25,
-2,
-5,
59,
0,
64,
43,
13,
-60,
35,
28,
11,
-6,
21,
-5,
18,
31,
30,
28,
13,
102,
-13,
-1,
31,
12,
-36,
-58,
-38,
37,
-27,
-61,
-28,
65,
32,
43,
21,
30,
1,
61,
-1,
-74,
-31,
-11,
7,
61,
-34,
15,
20,
-28,
-6,
10,
25,
-49,
4,
-41,
-30,
-3,
8,
57,
-17,
-50,
14,
21,
26,
18,
-6,
-22,
-36,
-53,
16,
2,
34,
-6,
-4,
-60,
35,
-20,
-78,
46,
-16,
-15,
8,
-2,
-41,
26,
-9,
6,
-52,
-26,
-24,
-21,
17,
-20,
0,
-4,
1,
-40,
-12,
-14,
31,
-52,
-6,
-8,
53,
-17,
57,
-10,
-15,
0,
-22,
4,
-16,
-27,
-4,
59,
-31,
-3,
27,
30,
-2,
-9,
-26,
8,
36,
16,
-76,
31,
-26,
14,
32,
25,
3,
42,
-15,
-5,
-26,
11,
-36,
-6,
-67,
-37,
-68,
-32,
16,
-5,
47,
-23,
18,
10,
58,
-11,
-16,
113,
46,
-1,
55,
4,
14,
-24,
26,
51,
-34,
13,
-41,
-15,
-21,
4,
-1,
-42,
47,
7,
-2,
-24,
-7,
-10,
-15,
4,
-20,
-5,
-5,
-8,
2,
-50,
2,
27,
44,
-40,
-23,
50,
30,
-43,
-11,
47,
13,
-16,
-11,
19,
-14,
-43,
14,
-43,
-1,
20,
17,
-44,
5,
-22,
-20,
2,
2,
22,
17,
-24,
14,
40,
24,
46,
18,
-2,
-26,
52,
-76,
11,
-50,
-75,
-35,
11,
11,
-33,
12,
16,
-55,
19,
0,
-34,
3,
-9,
6,
-16,
40,
17,
-30,
8,
17,
1,
-2,
9,
-27,
-7,
49,
33,
4,
-12,
-11,
-19,
-41,
14,
-45,
-31,
-11,
19,
68,
-33,
53,
38,
4,
8,
40,
23,
-14,
4,
-36,
-40,
-8,
20,
-40,
-43,
-10,
10,
-23,
-3,
-36,
-22,
-7,
-40,
-36,
32,
15,
16,
-35,
7,
-8,
-1,
4,
-27,
0,
-12,
41,
11,
43,
12,
11,
21,
-15,
-26,
10,
-6,
-15,
3,
-68,
38,
-16,
-9,
-72,
-34,
-8,
-32,
39,
-22,
18,
56,
18,
-15,
-16,
2,
16,
-10,
-8,
45,
-19,
-67,
19,
-6,
48,
1,
59,
10,
-13,
56,
3,
-11,
38,
-43,
10,
-14,
-13,
33,
55,
-53,
53,
-1,
0,
-31,
47,
5,
-51,
6,
8,
-8,
32,
-24,
-12,
3,
-19,
43,
0,
-17,
31,
-29,
1,
-38,
-25,
19,
15,
31,
12,
24,
-35,
0,
25,
-7,
35,
-3,
-18,
-18,
-3,
15,
7,
-47,
20,
41,
3,
-21,
-31,
24,
-43,
18,
23,
45,
5,
13,
-10,
-9,
-1,
7,
45,
-47,
11,
-19,
9,
-12,
-66,
41,
-11,
-65,
-17,
-26,
31,
42,
5,
-17,
0,
-20,
-60,
-29,
-35,
20,
3,
-36,
8,
-54,
17,
14,
-32,
0,
-32,
-28,
-14,
-28,
-16,
14,
-71,
-1,
45,
3,
4,
-64,
-50,
12,
-17,
-24,
-2,
-64,
7,
35,
-47,
0,
-70,
-5,
36,
-43,
18,
-32,
-25,
36,
17,
-20,
-13,
17,
32,
-13,
-21,
-22,
38,
27,
-37,
-18,
24,
-19,
-61,
19,
-12,
-23,
-4,
24,
36,
7,
13,
-33,
-4,
-5,
17,
14,
-9,
-22,
41,
-14,
-26,
-10,
-8,
18,
-6,
-4,
30,
-43,
-18,
0,
-14,
-30,
44,
31,
35,
19,
-44,
-8,
11,
26,
8,
4,
38,
7,
-50,
-8,
-13,
6,
-35,
0,
-12,
10,
-15,
8,
2,
51,
-6,
-18,
61,
-34,
25,
-13,
6,
30,
-45,
-23,
5,
-28,
28,
-15,
-6,
-47,
18,
-52,
82,
-18,
25,
5,
-12,
26,
0,
-6,
-26,
9,
25,
30,
14,
-23,
-28,
17,
10,
-25,
-76,
-10,
-10,
34,
71,
5,
-72,
20,
9,
-11,
-82,
-11,
0,
17,
-34,
24,
-2,
-45,
-9,
-3,
0,
2,
40,
42,
-11,
4,
40,
-65,
-20,
-55,
73,
89,
-33,
-17,
0,
14,
-32,
-24,
34,
4,
26,
-1,
-10,
3,
-36,
8,
26,
21,
2,
-47,
0,
-7,
-30,
-26,
18,
-8,
-19,
-55,
-47,
-48,
7,
16,
36,
-58,
-54,
21,
17,
24,
-40,
-3,
-16,
-36,
-93,
25,
17,
5,
19,
-28,
-41,
10,
37,
7,
4,
25,
21,
-23,
23,
5,
9,
-71,
27,
-8,
24,
-15,
23,
-2,
-19,
12,
14,
25,
-67,
-15,
13,
0,
26,
7,
13,
8,
-11,
-3,
-30,
-45,
-18,
3,
28,
27,
60,
12,
8,
42,
-14,
-24,
-59,
-45,
-23,
19,
-26,
-74,
-37,
-47,
60,
35,
-32,
15,
25,
-60,
20,
4,
2,
53,
-21,
29,
-5,
-30,
66,
22,
49,
-17,
37,
1,
40,
-33,
-35,
14,
-17,
-21,
21
] |
Grant, C. J.
(after stating the facts). The stockholders of the defendant corporation were lawyers and business men. Before organizing the corporation and making the agreement with the patentee stockholders,.a careful investigation was made by them into the merits and value of the patents. A model of the register was submitted. Two firms of attorneys specially skilled in patent law, and acting independently of each other, had given opinions sustaining the validity of the patents. These opinions were submitted to the stockholders. Careful estimates were made of the cost of constructing the machines. The conclusion was reached that $20,000 would suffice to construct the necessary machinery and place the registers upon the market. The appellant defendants sold some of their nonassessable stock, and purchased some that was assessable. There is no claim of fraud, had faith, misrepresentation, or recklessness on the part of the owners of the patents. They submitted to these capitalists all the knowledge they possessed. For aught that appears upon this record, the cash stockholders were as competent to judge of the probable success of the enterprise and the value of the patents as were the others. For reasons unnecessary to state, the stockholders, after an expenditure of about $20,000, decided to abandon the enterprise and wind up the affairs of the corporation.
The learned circuit judge evidently based his conclusion, not upon any fraud, but upon the finding that the patents conveyed were in fact worth only $20,000, instead of $100,000, the agreed purchase price. It is unnecessary to enter into a discussion of the question. The case, in all its essential features, is similar to Young v. Erie Iron Co., 65 Mich. 111, where the subject is fully discussed in an opinion by Mr. Justice Morse, concurred in by the entire court. It was there held that, in order to render stock, issued as fully paid and nonassessable, assessable, it is necessary to establish either an intentional fraud in fact, or such reckless conduct in fixing the value of the property conveyed, without regard to its actual value, that an intent to defraud may be inferred. The creditors in that case were remediless. No case of fraud or recklessness having been established, it follows that the contract of the parties must control.
The decree must be reversed, with the costs of both courts, and the case remanded to the court below, with directions to enter a decree against the assessable stock sufficient to pay the debts of the corporation.
The other Justices concurred. | [
16,
33,
74,
-58,
-6,
18,
17,
-32,
22,
15,
8,
-11,
17,
17,
68,
-8,
19,
9,
-4,
4,
39,
-39,
-25,
-6,
-48,
-38,
6,
14,
35,
40,
1,
-42,
16,
-24,
-37,
25,
-49,
3,
9,
-12,
8,
4,
44,
-3,
15,
11,
18,
-60,
36,
-24,
57,
3,
44,
-6,
15,
-1,
-15,
-1,
-50,
-27,
10,
-47,
70,
14,
-2,
-21,
5,
9,
-12,
-3,
-21,
-19,
22,
-15,
46,
-100,
27,
5,
-66,
-30,
1,
-37,
6,
-16,
-23,
27,
51,
-18,
13,
-46,
13,
-34,
-4,
29,
22,
2,
31,
21,
-30,
18,
31,
16,
-10,
2,
12,
15,
23,
16,
-2,
-43,
10,
32,
-12,
35,
-40,
-5,
-42,
2,
-48,
-10,
-31,
-14,
-17,
39,
-13,
15,
-15,
-47,
-10,
35,
38,
-1,
-65,
74,
31,
-21,
-46,
-14,
2,
20,
-19,
25,
-21,
13,
-34,
23,
-8,
37,
36,
-27,
-18,
10,
25,
35,
34,
20,
1,
-18,
56,
-37,
15,
16,
9,
-3,
-41,
27,
-21,
-34,
-31,
4,
-29,
5,
-61,
-41,
-6,
34,
11,
17,
-29,
-67,
-17,
-10,
14,
1,
22,
-34,
70,
30,
45,
-28,
35,
13,
-54,
-16,
-70,
-4,
-11,
43,
20,
-1,
23,
-21,
-32,
10,
-11,
-4,
-4,
-43,
-43,
9,
-11,
73,
6,
-51,
-15,
54,
-53,
-60,
31,
-22,
45,
-29,
-39,
38,
-20,
-34,
29,
15,
-22,
0,
-46,
32,
-10,
-26,
12,
-33,
39,
-28,
6,
-30,
-21,
-37,
-8,
-23,
-15,
-6,
13,
-26,
-12,
59,
-37,
5,
-60,
55,
-17,
-3,
-31,
31,
5,
-60,
22,
55,
-60,
1,
45,
-38,
-11,
10,
-17,
53,
-13,
-50,
-24,
17,
12,
-11,
-17,
15,
-2,
-7,
-1,
-24,
-6,
20,
15,
37,
-15,
23,
-52,
35,
63,
35,
34,
-35,
44,
-13,
32,
13,
-9,
-24,
-50,
23,
-15,
-47,
50,
28,
-36,
4,
-21,
-44,
-22,
10,
-16,
9,
41,
-4,
-18,
19,
21,
-9,
-24,
52,
-17,
-14,
-1,
7,
74,
-68,
0,
18,
-16,
38,
29,
0,
-32,
-28,
72,
-36,
1,
-14,
-2,
16,
-13,
2,
-11,
-11,
-23,
-65,
17,
5,
16,
-10,
-7,
22,
41,
26,
26,
10,
10,
6,
41,
11,
30,
-7,
-8,
19,
-52,
-42,
9,
35,
-9,
43,
-19,
6,
25,
-42,
-11,
-3,
-30,
21,
9,
-13,
38,
-42,
7,
40,
10,
22,
-38,
8,
-38,
-19,
-19,
62,
-9,
-31,
-5,
-41,
-23,
-32,
-1,
-1,
-35,
-11,
-22,
-45,
9,
21,
-7,
-17,
-7,
21,
54,
-53,
-11,
-39,
47,
8,
-11,
15,
-6,
-13,
-34,
-19,
-15,
-26,
24,
27,
-61,
14,
-11,
-2,
49,
-11,
10,
-10,
-46,
13,
8,
12,
-23,
-6,
-47,
37,
55,
2,
21,
20,
38,
7,
2,
49,
-8,
-1,
33,
58,
50,
-34,
28,
-3,
4,
10,
34,
-16,
-26,
-6,
50,
-46,
28,
10,
-24,
26,
4,
17,
-26,
34,
-6,
-46,
-8,
1,
8,
28,
23,
0,
-50,
24,
-56,
17,
-17,
32,
6,
9,
47,
2,
0,
0,
-27,
-20,
17,
-3,
-19,
-33,
44,
-21,
-1,
21,
19,
-43,
2,
19,
-21,
-27,
-2,
-21,
-8,
25,
-7,
60,
-9,
28,
38,
6,
-74,
24,
-40,
25,
34,
-11,
37,
-3,
20,
16,
5,
-22,
-16,
-34,
-4,
-27,
-16,
-16,
-32,
-2,
12,
22,
0,
-17,
-20,
8,
-11,
-17,
-40,
-17,
29,
59,
-7,
25,
16,
19,
-6,
6,
-52,
33,
-1,
-52,
46,
-13,
-23,
1,
12,
-6,
-20,
-7,
9,
34,
0,
-14,
-12,
7,
5,
-7,
35,
34,
32,
-69,
-53,
-13,
-12,
28,
-12,
-2,
-48,
-15,
-12,
-17,
30,
-3,
34,
45,
62,
43,
-42,
9,
-24,
-4,
-17,
-5,
-17,
41,
14,
-30,
6,
3,
78,
-12,
21,
8,
-31,
10,
0,
24,
11,
7,
-3,
-13,
2,
3,
-12,
-17,
-19,
29,
8,
-15,
-23,
36,
-31,
18,
2,
-31,
-20,
20,
17,
-22,
7,
-13,
8,
-39,
-30,
13,
13,
32,
16,
-17,
22,
-1,
7,
24,
14,
-35,
10,
-44,
26,
-2,
34,
20,
0,
9,
-45,
-11,
68,
-29,
6,
4,
25,
-38,
26,
-19,
30,
0,
16,
41,
-19,
42,
-7,
2,
17,
-4,
6,
-1,
-9,
-20,
15,
-2,
-41,
-12,
-57,
11,
27,
9,
-26,
-50,
4,
-23,
-19,
70,
-3,
6,
-19,
24,
21,
-37,
85,
-53,
-3,
-16,
-37,
8,
-16,
26,
-19,
-61,
11,
-16,
5,
18,
-14,
34,
-5,
-10,
-57,
15,
-10,
-34,
-10,
-17,
-8,
37,
19,
-55,
12,
-40,
3,
33,
0,
4,
0,
14,
5,
38,
11,
15,
-1,
16,
40,
20,
-3,
2,
-33,
-4,
-15,
-20,
-8,
17,
-50,
-43,
-39,
48,
-14,
-44,
0,
-22,
-43,
-15,
-40,
46,
5,
-38,
33,
-13,
37,
24,
23,
-43,
-16,
29,
-21,
-33,
21,
19,
12,
35,
-5,
-4,
9,
18,
-17,
0,
8,
34,
29,
-17,
3,
-35,
-18,
-1,
-9,
0,
-3,
-26,
65,
-49,
-4,
-14,
-15,
-38,
-3,
-91,
-33,
-17,
-30,
-5,
-20,
2,
-15,
-6,
-7,
3,
16,
16,
-38,
36,
30,
10,
-24,
-7,
31,
6,
4,
-34,
59,
-19,
-24,
-39,
-35,
34,
26,
-9,
-67,
-2,
-14,
18,
-49,
49,
-33,
4,
9,
-12,
13,
36,
49,
37,
41,
38,
-33,
15,
39,
-21,
-19,
7,
-35,
-15,
-11,
35,
-5,
-4,
-97,
26,
-10,
-47,
-5,
54,
4,
0,
14,
-12,
-10,
10,
42,
-21,
-17,
38,
-9,
-34,
-19,
11,
68,
-44,
44,
-54,
52,
21,
15,
-11,
22,
34,
43,
49,
29,
0,
0,
-3,
53,
-7,
-40,
-18,
-49,
0,
46,
30,
40,
13,
1,
-12,
-40,
-16,
9,
-17,
3,
20,
-2,
32,
-12,
-12,
35,
-2,
6,
-12,
-27,
-52,
22,
-8,
17,
-53,
22,
20,
-43,
-36,
2,
17,
11,
-33,
-1,
-9,
21,
23,
-37,
-31,
-7,
-54,
-48,
5,
29,
43,
0,
57,
-35,
-2,
59,
-26,
-8,
-37,
9,
-19,
7,
-14,
30,
38,
13,
-25,
-7,
-8,
22,
-16,
15,
19,
52,
-20,
-5,
-37,
0,
-15,
-7,
32,
0,
-2,
0,
-16,
9,
7,
36,
-30,
47,
-78,
5,
-2,
-35,
-49,
7,
9,
-9,
2,
-17,
-9,
37,
74,
-41,
23,
-22,
1,
-18,
-15,
48,
7,
12,
29
] |
Per Curiam.
This is the companion of the foregoing case. The court below entered an order transferring the insurance money from the estate of Alonzo Sherman to the estate of Mrs. Sherman, on the theory that it belonged to her estate. From this the claimant has appealed. This right of appeal depends upon the allowance of its claim. Having decided that it has no provable claim against the estate, it follows that its appeal in this case must fall.
Judgment affirmed. | [
-21,
13,
11,
41,
-14,
3,
-1,
4,
37,
-27,
-34,
3,
26,
10,
-22,
-41,
-13,
16,
-15,
18,
-31,
10,
-59,
28,
-6,
-47,
32,
35,
-5,
56,
-4,
0,
-5,
3,
-5,
36,
-11,
23,
0,
-29,
2,
-16,
13,
50,
-40,
0,
13,
1,
8,
-28,
8,
9,
-14,
-15,
13,
31,
10,
-15,
15,
2,
-12,
-30,
-6,
41,
0,
42,
15,
0,
-45,
59,
5,
37,
40,
16,
54,
-26,
-26,
27,
-5,
38,
3,
-11,
29,
17,
0,
50,
-33,
2,
0,
0,
-89,
-29,
-13,
-48,
-80,
81,
45,
-16,
38,
39,
-1,
-30,
42,
33,
20,
8,
16,
-32,
-29,
-9,
-41,
-22,
17,
-12,
25,
79,
-7,
-23,
-37,
-9,
-4,
26,
58,
11,
37,
28,
-3,
-11,
-29,
-11,
-30,
28,
-69,
8,
6,
27,
24,
-49,
1,
-30,
46,
12,
6,
-13,
-8,
-1,
50,
-59,
-60,
-17,
31,
68,
-30,
13,
6,
26,
-38,
-36,
37,
0,
-33,
-40,
9,
38,
12,
20,
25,
0,
13,
40,
7,
-17,
-5,
9,
-3,
29,
-7,
-20,
-69,
14,
16,
38,
22,
16,
-28,
-35,
-40,
32,
-40,
-65,
-10,
6,
-9,
51,
26,
33,
60,
-7,
46,
15,
-17,
-19,
-5,
16,
21,
-14,
-22,
-76,
-1,
-29,
23,
0,
-18,
-37,
17,
24,
-68,
-7,
-40,
5,
-4,
15,
16,
-24,
14,
-44,
-31,
-13,
-18,
10,
14,
-10,
-9,
24,
8,
74,
-24,
-31,
-17,
-48,
16,
30,
7,
-77,
1,
-6,
54,
36,
-6,
31,
5,
-21,
31,
68,
48,
-40,
16,
32,
-17,
-27,
-28,
63,
-60,
26,
37,
18,
18,
-10,
4,
6,
4,
11,
27,
-54,
14,
-26,
6,
-7,
-5,
25,
-1,
24,
-44,
4,
-46,
-41,
-27,
-36,
71,
8,
42,
-17,
61,
-12,
59,
-21,
-8,
10,
-51,
-57,
8,
9,
25,
32,
53,
-10,
1,
-44,
-32,
-9,
-3,
88,
-13,
-11,
25,
40,
-37,
-51,
-27,
11,
-44,
6,
-15,
-3,
34,
8,
7,
-17,
16,
53,
-57,
44,
18,
5,
17,
12,
13,
56,
24,
-3,
2,
23,
14,
-13,
-4,
-25,
21,
-18,
38,
44,
-36,
12,
-10,
10,
-11,
-27,
78,
21,
-54,
91,
15,
68,
84,
-16,
16,
2,
-37,
52,
-29,
-22,
39,
-37,
-18,
-39,
-5,
8,
-36,
23,
-29,
-11,
15,
-41,
58,
17,
15,
-13,
-29,
32,
-36,
-27,
-33,
-52,
39,
8,
-37,
44,
-55,
3,
-1,
-10,
4,
43,
-21,
-12,
-70,
-23,
-11,
-27,
-6,
7,
-21,
12,
37,
-13,
34,
-11,
58,
9,
38,
-34,
35,
-16,
-24,
-18,
-16,
-17,
35,
23,
-14,
-22,
1,
-24,
-9,
-39,
-11,
44,
-12,
-32,
-21,
11,
3,
17,
17,
37,
-31,
-39,
4,
-38,
8,
-39,
10,
-1,
9,
-13,
-36,
-25,
29,
-11,
16,
4,
-8,
26,
27,
38,
-21,
0,
9,
14,
98,
-59,
-46,
21,
-46,
1,
9,
2,
-25,
-47,
-10,
7,
11,
30,
6,
2,
-4,
-9,
10,
-23,
-3,
-29,
-5,
-25,
-23,
-46,
3,
-14,
-23,
1,
-20,
-51,
-11,
32,
58,
-10,
12,
-22,
-16,
-79,
19,
0,
-1,
-65,
42,
13,
29,
-3,
-2,
22,
22,
29,
-25,
-11,
-53,
0,
9,
37,
20,
25,
52,
10,
15,
24,
-10,
-28,
-19,
-16,
-13,
-8,
-11,
-12,
-67,
36,
17,
-11,
-24,
19,
-6,
25,
-7,
-14,
-1,
-17,
4,
12,
41,
-22,
2,
-24,
51,
9,
-10,
6,
-5,
-22,
42,
-1,
-3,
4,
-9,
-8,
14,
-51,
11,
-5,
17,
-12,
19,
9,
-27,
15,
-60,
11,
-54,
-40,
-19,
19,
28,
0,
-41,
-32,
-15,
8,
-2,
6,
-47,
-31,
-19,
-39,
-9,
-6,
-16,
-24,
-30,
22,
3,
-5,
34,
32,
28,
-16,
35,
28,
6,
-20,
-1,
-23,
-10,
23,
67,
-41,
-29,
45,
0,
4,
37,
-45,
-17,
6,
14,
39,
67,
-20,
29,
-20,
-48,
-2,
17,
33,
-68,
-17,
-41,
39,
18,
-26,
-2,
27,
26,
-30,
10,
-14,
-11,
31,
-5,
-24,
-10,
2,
-1,
14,
-1,
-19,
-22,
-47,
-2,
0,
-20,
52,
-11,
-14,
-15,
-23,
-9,
-40,
-17,
24,
11,
52,
14,
45,
-6,
25,
-8,
-28,
1,
17,
-9,
41,
-9,
42,
-10,
-4,
14,
-26,
-22,
-16,
44,
4,
32,
41,
50,
13,
4,
32,
-32,
50,
-23,
-56,
-11,
-11,
-7,
-18,
-51,
-16,
-15,
6,
-61,
7,
0,
-35,
19,
-81,
26,
-47,
1,
-1,
-52,
48,
34,
4,
30,
26,
-2,
10,
7,
20,
-45,
-28,
-33,
-22,
17,
-13,
-23,
32,
46,
34,
-55,
42,
3,
41,
1,
42,
60,
-8,
14,
23,
-5,
-45,
-13,
13,
22,
-74,
-21,
-14,
-22,
57,
4,
-7,
-48,
-19,
-82,
2,
2,
-14,
52,
-1,
-33,
1,
3,
16,
74,
-25,
-9,
-53,
28,
27,
11,
-1,
5,
-51,
-27,
4,
-5,
21,
17,
-2,
-47,
14,
-2,
-21,
-3,
-32,
-24,
7,
19,
0,
9,
41,
-20,
56,
-55,
-17,
19,
-82,
-24,
-39,
-33,
50,
-23,
7,
-25,
0,
-8,
40,
11,
21,
12,
33,
43,
-33,
-10,
33,
-7,
-76,
-52,
21,
-34,
10,
10,
-20,
-44,
-60,
-13,
10,
-8,
28,
55,
42,
-64,
45,
-10,
9,
-3,
-49,
20,
16,
14,
-32,
9,
-18,
1,
-13,
0,
-25,
-18,
-9,
0,
9,
38,
31,
9,
-47,
-24,
52,
-47,
-27,
-21,
-14,
47,
2,
37,
6,
-61,
-2,
-34,
44,
-39,
39,
-29,
13,
-71,
17,
67,
8,
4,
14,
-9,
-4,
-20,
-1,
43,
8,
-44,
-4,
-6,
17,
16,
22,
7,
-5,
-5,
-14,
38,
5,
-14,
-22,
51,
53,
-5,
-26,
-66,
24,
4,
7,
-46,
0,
2,
28,
67,
-50,
1,
-11,
1,
0,
-8,
11,
17,
-72,
18,
-5,
-15,
70,
4,
-12,
-10,
33,
-30,
4,
40,
-21,
9,
-6,
36,
-9,
-13,
22,
-46,
-18,
-4,
23,
-32,
-34,
-17,
-13,
-12,
6,
4,
-10,
43,
39,
-29,
-1,
-6,
-36,
25,
-58,
28,
-83,
20,
-16,
-7,
-24,
13,
-23,
-76,
37,
-13,
-19,
-55,
-11,
-19,
-49,
70,
-51,
43,
-7,
32,
14,
-17,
46,
-4,
14,
-19,
-26,
35,
3,
-25,
1,
10,
6,
-8,
-26,
-20,
28,
0,
80,
47,
25,
-19,
-9,
21,
-25,
14,
15,
69,
-42
] |
Grant, C. J.
(after stating the facts). Error is assigned upon the refusal of the court to direct a verdict for the defendant. The record does not contain all the testimony, and therefore this assignment cannot be considered.
The court erred in refusing to instruct the jury, as requested, that plaintiff could not in any event recover to exceed the value of the celery less the amount due for rent. Counsel for plaintiff concede this to be the rule in actions for trover under the like.circumstances. The declaration charges conversion as well as trespass. Defendant had a right to enter and take possession under his mortgage. We find nothing upon the record to show that he did not lawfully enter. It quite conclusively appears, even from plaintiff’s own testimony, that defendant, in removing the earth, was taking a proper course to protect the property from injury. A conversion being charged, we think that the request should have been given. Brink v. Freoff, 40 Mich. 610; Rall v. Cook, 77 Mich. 681; 5 Am. & Eng. Enc. Law (2d Ed.), 998. Whether plaintiff could avoid this rule by an action quare clausum fregit, —quaere.
Defendant was not responsible for any injury or loss to the celery upon the one-acre piece, which he did not touch, and the jury should have been so instructed.
The court erred in rejecting the testimony of skilled celery growers that it was customary and proper to open the trenches in warm weather, in order to prevent the celery from heating. If defendant was in possession under his chattel mortgage, it was his duty to use reasonable care in protecting the property; and, if he exercised such reasonable care, he was not liable for any loss. Jones, Chat. Mortg. (4th Ed.) § 697; 5 Am. & Eng. Enc. Law (2d Ed.), 1006.
Defendant urges that the injury resulted from plaintiff’s own fault in ordering defendant’s employés away, and then leaving the celery without any protection or care. Since this question may arise upon a new trial, we will dispose of it. The jury should have been instructed that if defendant took possession under his chattel mortgage, and placed these men in charge, and plaintiff ordered them away after the trenches were opened, and then neglected to take proper care of the celery, he cannot recover. This would permit him to take advantage of his own wrong.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
-44,
1,
-12,
-26,
-58,
35,
51,
77,
-14,
49,
19,
8,
34,
39,
-35,
-56,
-14,
-21,
-32,
-10,
30,
-55,
-42,
18,
-19,
-49,
44,
-10,
19,
38,
19,
1,
-41,
2,
-30,
2,
4,
17,
15,
26,
25,
-8,
11,
-49,
-11,
-17,
-25,
-35,
18,
-12,
75,
19,
33,
-19,
-7,
-14,
-11,
33,
-26,
-35,
22,
-33,
20,
6,
7,
22,
-26,
-1,
-12,
13,
-40,
10,
3,
-28,
16,
-8,
-32,
0,
-44,
-17,
0,
3,
56,
9,
10,
-11,
40,
7,
-4,
-50,
-38,
-6,
-29,
-3,
-15,
2,
14,
65,
5,
7,
16,
0,
-12,
28,
-2,
4,
-50,
-34,
6,
-7,
15,
14,
0,
-37,
-42,
37,
-41,
18,
-16,
-58,
25,
-63,
14,
-58,
-28,
-13,
24,
-49,
8,
10,
22,
-11,
-91,
10,
-16,
-15,
-75,
12,
-21,
4,
26,
-2,
15,
-8,
24,
-33,
-17,
11,
-10,
14,
-2,
31,
-10,
26,
-36,
13,
-2,
-40,
-5,
-18,
55,
24,
-36,
-8,
-10,
24,
-15,
7,
-45,
-10,
60,
-24,
-21,
-23,
8,
-6,
5,
-46,
-8,
0,
-34,
-3,
23,
26,
24,
-9,
-74,
23,
2,
4,
-25,
-2,
-8,
32,
18,
41,
-27,
40,
28,
-31,
-18,
8,
-6,
-15,
38,
-15,
11,
-32,
5,
31,
-44,
22,
-67,
-37,
-36,
-5,
31,
-28,
-19,
-9,
-26,
14,
-34,
11,
4,
-29,
-44,
19,
-17,
28,
-36,
42,
-7,
32,
40,
-46,
46,
-13,
29,
37,
36,
13,
-17,
-41,
0,
-7,
-26,
-26,
0,
6,
-21,
-31,
15,
7,
-42,
-17,
3,
34,
-60,
-29,
5,
44,
-10,
9,
-21,
6,
-39,
8,
27,
28,
-16,
13,
-4,
32,
-11,
1,
-38,
42,
-14,
6,
-23,
-4,
-5,
34,
-58,
2,
13,
22,
-17,
2,
32,
-63,
-20,
7,
36,
26,
-11,
-22,
-2,
-12,
35,
-17,
22,
25,
36,
-25,
-1,
13,
-15,
-23,
7,
14,
-11,
49,
15,
12,
11,
-10,
7,
-32,
-21,
-12,
10,
-1,
-13,
-20,
6,
-56,
-13,
50,
-8,
15,
7,
34,
30,
-8,
14,
-56,
-31,
5,
40,
-12,
3,
-57,
35,
18,
-21,
-20,
-66,
26,
-2,
4,
-14,
0,
51,
33,
21,
1,
-20,
19,
67,
-36,
13,
-26,
-7,
20,
3,
-39,
6,
66,
-16,
-8,
-3,
-33,
-50,
-28,
14,
-22,
-49,
36,
3,
-18,
-10,
-13,
-5,
34,
-46,
19,
-11,
36,
-32,
-67,
65,
6,
-23,
16,
2,
-10,
-9,
1,
-16,
15,
6,
-10,
-41,
1,
-3,
-2,
7,
3,
43,
21,
43,
-6,
-29,
-12,
83,
-26,
56,
14,
-2,
-47,
41,
-17,
-6,
-39,
-13,
11,
-41,
8,
-9,
-35,
1,
-42,
18,
-11,
-31,
-51,
-19,
40,
-51,
37,
16,
-3,
0,
25,
-18,
34,
20,
17,
-14,
9,
23,
-4,
33,
49,
52,
-1,
3,
-53,
16,
-30,
-31,
-21,
4,
-29,
-18,
-56,
39,
3,
14,
8,
55,
27,
0,
32,
-16,
20,
-52,
0,
13,
55,
30,
-21,
-7,
-22,
9,
19,
-17,
-2,
-15,
33,
33,
14,
-41,
-6,
-9,
31,
-11,
14,
-7,
14,
8,
26,
37,
0,
-13,
-75,
46,
66,
-43,
16,
35,
10,
-15,
0,
22,
-18,
21,
11,
-38,
-56,
-38,
-11,
-10,
-3,
0,
63,
-5,
-11,
50,
-19,
-22,
5,
-32,
-19,
-1,
-12,
0,
-19,
-12,
45,
28,
51,
-19,
34,
2,
-19,
-18,
15,
13,
-34,
14,
28,
-10,
-10,
-15,
-10,
0,
7,
16,
10,
21,
-11,
26,
-4,
61,
-10,
22,
10,
19,
-20,
-25,
-11,
-33,
-47,
2,
-33,
21,
-18,
-39,
-9,
28,
-61,
10,
44,
-4,
37,
9,
3,
-25,
39,
-5,
-37,
-3,
-23,
-18,
-23,
8,
81,
-54,
-13,
-62,
10,
42,
-13,
19,
-22,
2,
1,
44,
-2,
31,
-2,
46,
36,
14,
-78,
-9,
60,
-11,
1,
-18,
-12,
-24,
-50,
0,
19,
-22,
-29,
23,
23,
6,
21,
-41,
53,
48,
3,
0,
-35,
14,
-14,
-21,
-29,
-10,
56,
28,
1,
45,
-39,
-33,
25,
-12,
-13,
47,
-3,
4,
11,
5,
-11,
35,
-17,
-14,
24,
0,
33,
-17,
3,
32,
8,
21,
-21,
21,
14,
23,
2,
9,
34,
6,
5,
-19,
-39,
47,
2,
8,
-50,
-7,
23,
33,
20,
-32,
-32,
42,
33,
48,
0,
46,
60,
23,
-20,
20,
-32,
47,
8,
-16,
8,
-35,
9,
9,
-29,
13,
56,
-30,
-8,
13,
-13,
-18,
-20,
-18,
16,
22,
-53,
8,
-33,
11,
13,
7,
8,
-5,
-3,
-12,
-39,
6,
23,
1,
26,
24,
22,
13,
-32,
-15,
19,
-3,
18,
0,
-8,
35,
18,
13,
22,
6,
-2,
-5,
14,
-35,
14,
-35,
33,
-28,
-35,
13,
14,
-29,
-41,
-24,
14,
26,
-17,
8,
5,
-19,
-47,
37,
-27,
-4,
51,
48,
-14,
45,
22,
-3,
-33,
17,
-2,
-15,
-11,
-1,
-41,
-5,
17,
43,
4,
-66,
-4,
11,
-18,
4,
-25,
-16,
-20,
8,
-7,
0,
41,
10,
31,
0,
53,
-2,
-36,
1,
-63,
-27,
-18,
5,
-9,
29,
3,
41,
-20,
-17,
53,
9,
-36,
-11,
22,
-5,
-30,
4,
-24,
-18,
-72,
-27,
54,
10,
-39,
-10,
-18,
-32,
-15,
20,
-17,
-5,
14,
38,
-20,
-50,
35,
-16,
19,
2,
-52,
67,
28,
-1,
-1,
6,
17,
36,
19,
-21,
3,
-38,
17,
34,
-21,
-18,
19,
9,
-9,
20,
46,
-24,
45,
-7,
19,
-13,
-10,
31,
-9,
7,
41,
-49,
28,
-10,
0,
-43,
-15,
-9,
47,
30,
28,
-15,
33,
12,
-30,
-35,
-12,
-2,
-5,
1,
15,
-34,
1,
-3,
-13,
16,
28,
-5,
2,
-7,
-28,
-53,
-22,
29,
70,
10,
-42,
21,
0,
7,
7,
-6,
-29,
-15,
-11,
-7,
41,
3,
30,
-11,
14,
-14,
-9,
21,
4,
-9,
-31,
-23,
-48,
11,
-21,
8,
18,
-40,
-73,
-3,
-4,
10,
-17,
-28,
23,
4,
-22,
42,
11,
-18,
-23,
-54,
24,
-40,
-7,
-20,
-7,
32,
29,
24,
-2,
-57,
2,
59,
-12,
17,
1,
9,
-17,
41,
23,
-17,
12,
15,
-32,
-30,
14,
-16,
-15,
-2,
-52,
-5,
-45,
-5,
2,
-3,
47,
-19,
10,
-30,
-7,
15,
-21,
-32,
12,
18,
4,
6,
-34,
32,
52,
-8,
-50,
-28,
9,
59,
51,
-14,
11,
-26,
40,
-24,
-25,
36,
34,
7,
29
] |
Montgomery, J.
This action is brought against the defendant Welch and his bondsmen to recover damages for selling liquor to the plaintiff’s minor son, Glenn Jewell. The declaration counts on sales on the 7th of January, 1896, on the 1st of July, 1895, and on divers other days and dates, too numerous to mention, since May 1, 1895. The defense showed on the trial that the plaintiff had previously brought an action against one Andrew Flegler and his bondsmen, counting on sales of liquor to his son on the 1st of‘May, 1895, on the 7th of January, 1896, and on divers other days and dates; and further showed that, after this action was brought, a settlement was made between plaintiff and Flegler, Flegler paying plaintiff a sum of money in satisfaction of the injuries sustained. These facts were all conceded, but plaintiff’s counsel stated that he proposed to show that at one date alleged in the present declaration, and at other dates, the plaintiff’s minor son became intoxicated in the saloon of Patrick Welch, and that such intoxication was distinct and separate from any intoxication induced by liquors received from Mr. Flegler, or any one else. The circuit judge, being of the opinion that the settlement with Flegler was a bar to the plaintiff’s action, directed a verdict for the defendants.
It is the general - rule that a release to one of several joint tort feasors discharges all. Under the statute (section 2283e3, 3 How. Stat.) the parties who contribute by sales of intoxicating liquors to an intoxication are jointly and severally liable (Franklin v. Frey, 106 Mich. 76; Johnson v. Johnson, 100 Mich. 326); but this court has never held that, where the acts are separate and distinct, one having no connection with the other, the parties can be held jointly liable. The furthest that the court has gone in this direction was in the case of Johnson v. Johnson, supra, where the plaintiff’s husband commenced a protracted debauch on the 23d or 24th of July, and his spree lasted until August 9th, and it was held that it was competent for the court to award damages against all those whose sales contributed to this continuous intoxication. But under the proposition stated by plaintiff’s counsel to show separate and distinct sales by the defendant, producing intoxication, to which intoxication Flegler in no way contributed, the plaintiff is entitled to recover, unless it is conclusive that the matter settled with Flegler was that which was set out in the declaration. It is to be bornp in mind that the defendants were not parties to the Flegler suit, and are in no way concerned in the pleadings, except that, as the law does not permit two satisfactions for the same wrong, defend ants are entitled to set up' this satisfaction if it in fact covers the same cause of action for which defendants are sued, and to the extent to which the causes of action are identical it is a complete defense. But it is held that, if the causes of action in two distinct suits brought against different defendants are in fact distinct, although the declarations are identical in form, the acceptance by the plaintiff of a sum of money in satisfaction and discharge of the cause of action in one suit will be no defense in the other. Miller v. Patterson, 31 Ohio St. 419; Jewett v. Wanshura, 43 Iowa, 574. If the plaintiff had shown the facts claimed to exist, he would have shown that, as to the particular sales named, the parties were not joint tort feasors. Defendants’ counsel rely on Aldrich v. Parnell, 147 Mass. 409. The rule in that case is not inconsistent with the views here expressed. To show the precise point decided in that case, we quote from the statement of the court:
“The instructions to the jury assumed that the defendant and Gabb and the proprietor of the Mansion House might all have contributed to the intoxication, for which-damages might be assessed, and it was ruled that a settlement with one of them would not operate as a release to this defendant, nor bar the present action.”
The supreme court disapproved this instruction, and held that the statute did not authorize the plaintiff to multiply her damages; that, whenever she has received satisfaction for damages sustained by her, her right to recover is gone. So in this case, to the extent that the plaintiff has received satisfaction, his right to recover is gone; but, if the plaintiff is able to show distinct transactions with which Flegler had no connection, and out of which a liability arose to plaintiff, he would be entitled to recover.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
-26,
32,
9,
78,
-9,
-36,
22,
0,
-9,
11,
-18,
-9,
-6,
19,
46,
-22,
4,
-31,
-17,
-8,
30,
-29,
-27,
31,
43,
17,
32,
39,
41,
13,
9,
-5,
15,
-10,
13,
30,
16,
-19,
18,
-23,
-10,
31,
48,
17,
-3,
-8,
-4,
-61,
25,
1,
-40,
-86,
12,
8,
65,
-58,
15,
31,
18,
14,
-38,
-27,
-19,
-19,
-3,
-5,
26,
-11,
45,
-38,
-5,
9,
-63,
29,
-19,
-38,
4,
14,
11,
0,
-40,
-31,
49,
-8,
-2,
3,
-17,
-29,
-18,
7,
28,
-13,
-49,
-6,
-18,
10,
-35,
21,
-39,
16,
8,
-61,
-1,
14,
-18,
-16,
-19,
-59,
-32,
31,
-16,
2,
58,
3,
8,
-47,
-2,
-13,
-56,
25,
27,
12,
102,
55,
-35,
7,
-27,
-14,
-62,
-13,
38,
-8,
-57,
-7,
19,
30,
-31,
15,
-7,
34,
19,
-39,
-22,
-13,
17,
43,
39,
-3,
4,
-6,
-31,
7,
-4,
26,
-20,
-11,
21,
-27,
-10,
5,
-17,
-52,
36,
-17,
10,
-63,
20,
-26,
-7,
-18,
-14,
-13,
-22,
-6,
40,
12,
96,
-13,
-18,
8,
-39,
-28,
14,
22,
18,
-28,
-12,
26,
14,
3,
-10,
-5,
-56,
28,
-53,
62,
7,
0,
2,
14,
-52,
-73,
-19,
20,
-6,
6,
21,
-22,
10,
-3,
-21,
-12,
5,
-23,
-29,
-41,
16,
0,
-16,
-10,
-49,
-21,
-38,
2,
-14,
-85,
-12,
-10,
-25,
17,
21,
13,
38,
8,
-41,
-35,
-4,
-17,
31,
-38,
-6,
-29,
-58,
-71,
36,
16,
-1,
-27,
28,
33,
-9,
36,
-4,
25,
14,
-26,
23,
-13,
-14,
20,
3,
71,
-38,
29,
-8,
-31,
9,
-7,
-9,
21,
-5,
-30,
71,
23,
-20,
-25,
-7,
50,
-7,
56,
40,
18,
-3,
0,
-32,
0,
-12,
22,
6,
30,
11,
-2,
-22,
-38,
58,
15,
-32,
35,
9,
45,
22,
-8,
22,
24,
-47,
-15,
1,
-40,
61,
-57,
-8,
-30,
0,
-5,
18,
7,
3,
75,
32,
-69,
-26,
-45,
-19,
35,
0,
-88,
17,
3,
-14,
10,
29,
-15,
7,
-38,
-106,
-1,
50,
-11,
25,
25,
15,
-6,
45,
7,
-44,
37,
-1,
-20,
-30,
-16,
-36,
-56,
38,
0,
-3,
3,
42,
-19,
14,
-3,
0,
-15,
0,
12,
18,
-23,
-21,
-24,
-13,
29,
-18,
23,
-39,
24,
-69,
-38,
1,
-4,
-23,
70,
10,
-15,
18,
-19,
44,
10,
-74,
-11,
-41,
23,
-35,
4,
23,
13,
28,
-3,
15,
1,
-1,
-26,
10,
13,
31,
-35,
-12,
-6,
39,
3,
1,
-24,
-16,
-46,
16,
0,
28,
35,
6,
19,
-8,
-6,
31,
-3,
-5,
-77,
5,
-46,
66,
52,
-50,
18,
11,
11,
3,
18,
8,
-40,
-5,
24,
0,
6,
-40,
-10,
3,
48,
46,
-11,
-11,
22,
50,
11,
27,
6,
-4,
40,
-48,
74,
0,
-53,
-11,
-16,
12,
26,
-18,
-3,
24,
-32,
-25,
-13,
-14,
-27,
-38,
-20,
-6,
21,
-45,
31,
0,
10,
10,
8,
-9,
33,
-20,
-8,
-14,
-16,
-28,
-52,
0,
-11,
40,
-41,
14,
12,
-53,
-41,
-42,
-14,
-28,
22,
-22,
-8,
-43,
18,
4,
18,
32,
5,
-3,
13,
-44,
-17,
16,
-36,
-31,
-31,
-33,
-5,
-44,
53,
47,
-2,
-73,
37,
-51,
-10,
-4,
-2,
-20,
-25,
21,
-28,
7,
-14,
0,
18,
24,
50,
-3,
-19,
15,
20,
30,
28,
-2,
51,
-1,
25,
46,
32,
-33,
-11,
46,
1,
-4,
53,
-18,
-9,
-19,
-55,
11,
13,
32,
-1,
3,
-17,
27,
6,
16,
23,
-51,
24,
22,
-3,
3,
23,
-20,
-11,
-37,
-23,
61,
32,
-5,
-4,
-3,
26,
44,
-8,
7,
-31,
-24,
6,
-28,
40,
49,
-10,
53,
-9,
12,
-3,
7,
-31,
24,
10,
29,
12,
-37,
29,
-48,
17,
47,
101,
16,
-26,
-18,
-22,
-17,
-49,
-23,
28,
-18,
24,
-49,
-1,
58,
42,
-29,
-39,
-27,
-30,
-57,
-27,
12,
-28,
-3,
77,
-38,
51,
-60,
-3,
5,
-34,
-33,
32,
11,
14,
-30,
41,
40,
-25,
-25,
0,
-38,
27,
-25,
-39,
12,
-27,
-6,
-51,
23,
32,
-20,
30,
31,
1,
26,
5,
0,
26,
17,
-34,
-10,
19,
33,
-10,
22,
48,
32,
24,
-36,
-11,
39,
-33,
18,
38,
-24,
-33,
23,
-27,
-37,
17,
-24,
-35,
-45,
58,
47,
15,
-28,
-31,
-42,
-26,
32,
20,
43,
17,
26,
-29,
-21,
-7,
-5,
-3,
11,
17,
34,
2,
37,
29,
-66,
-49,
-88,
-26,
44,
-43,
42,
-3,
8,
53,
-10,
-57,
29,
-34,
6,
31,
38,
35,
-44,
-6,
-20,
6,
2,
-10,
-24,
2,
40,
3,
-42,
30,
25,
31,
-8,
27,
53,
19,
18,
-11,
3,
-15,
-21,
-26,
-9,
34,
5,
30,
-2,
9,
-31,
-15,
58,
-37,
-22,
7,
0,
-54,
-24,
0,
-41,
-43,
-24,
-28,
26,
-49,
-11,
1,
4,
11,
60,
-51,
23,
44,
-26,
-10,
25,
-3,
-19,
11,
-8,
15,
-13,
-37,
-37,
-6,
52,
76,
15,
12,
-23,
-41,
0,
-21,
-3,
38,
36,
-13,
-40,
32,
-3,
-36,
-28,
13,
-12,
-1,
-39,
-8,
22,
5,
22,
30,
-23,
-6,
-3,
-10,
-14,
27,
44,
8,
32,
-64,
-25,
-19,
27,
-37,
-16,
12,
1,
21,
12,
33,
15,
4,
-19,
0,
-30,
-20,
-24,
-36,
-49,
-39,
-6,
47,
17,
0,
-36,
-3,
-9,
32,
4,
45,
-38,
16,
-23,
18,
0,
-2,
-58,
41,
-5,
-46,
-16,
5,
23,
-62,
-19,
-6,
13,
76,
14,
-21,
-7,
15,
5,
-18,
-22,
40,
4,
-44,
-6,
29,
20,
-38,
25,
35,
-11,
33,
54,
-28,
-10,
10,
11,
-21,
16,
-15,
16,
55,
-4,
24,
-74,
51,
4,
29,
67,
-1,
10,
11,
-1,
36,
-14,
49,
-29,
22,
-20,
0,
27,
-17,
-7,
-38,
17,
-20,
25,
-16,
6,
39,
24,
23,
-5,
4,
27,
-26,
-19,
14,
3,
61,
-1,
29,
-19,
-26,
9,
70,
-40,
-3,
23,
59,
-24,
27,
26,
-23,
30,
6,
16,
8,
-11,
-25,
-32,
8,
-24,
3,
-6,
39,
-4,
0,
-21,
-28,
-27,
-17,
-7,
6,
-48,
-12,
-23,
15,
28,
9,
18,
21,
1,
-12,
1,
-13,
23,
-44,
25,
-12,
-28,
-42,
-8,
-31,
-4,
38,
24,
-9,
-44,
10,
30,
-13,
-14,
69,
-34,
79,
7,
18,
13,
9,
11,
31
] |
Per Curiam.
The question presented in this case is whether an application for extension of time after 80 days from entry of judgment have elapsed may be granted on cause shown in a case where there has been no previous extension. Under the old circuit court rule No. 85, no extension could be granted after the expiration of the term in cases where no extension had been given during the term. Cleveland v. Stein, 14 Mich. 334; Adrian Furniture Manfg. Co. v. Lenawee Circuit Judge, 92 Mich. 295. But when an extension beyond the term had once been had, the circuit judge had power to grant a further extension. White v. Campbell, 25 Mich. 465. The new rule No. 47 provides that a party shall have not less than 20 days after entry of judgment for the settlement of a bill of exceptions, and that, subject to limitations prescribed by statute, and on such terms as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper, and may extend such time when proper. It is further provided that no more than 60 days’ further time shall be granted except for good cause shown by affidavit on special motion after notice to the adverse party. There is no express limitation as to the time when this order may be made, and we think no such limitation need be interpolated by construction. The rights of parties are sufficiently protected by the requirement that they shall have notice of, and an opportunity to contest, such application.
The writ will be denied. | [
-13,
46,
13,
11,
12,
45,
26,
20,
3,
52,
33,
0,
-21,
-42,
11,
6,
30,
23,
-10,
24,
-15,
34,
0,
31,
-14,
13,
-16,
-17,
18,
8,
-72,
-18,
-56,
14,
-50,
23,
-9,
3,
20,
13,
-4,
-38,
-9,
-17,
-16,
-7,
17,
35,
35,
-41,
25,
22,
-40,
22,
-17,
2,
-37,
-8,
11,
31,
-11,
12,
0,
22,
37,
55,
-16,
-6,
6,
-21,
37,
-27,
46,
7,
11,
-6,
35,
18,
-23,
2,
19,
-37,
-17,
-69,
23,
-13,
25,
-3,
41,
-42,
-76,
-23,
-2,
0,
-46,
-9,
6,
-19,
34,
51,
-38,
14,
28,
-5,
-48,
37,
-25,
11,
-18,
-61,
26,
-41,
1,
-37,
-30,
28,
-21,
66,
-3,
-29,
20,
5,
13,
18,
51,
16,
-3,
-47,
-7,
-27,
-50,
20,
5,
19,
45,
27,
35,
-2,
34,
-48,
46,
14,
9,
-10,
17,
-56,
26,
0,
-27,
13,
-33,
90,
-26,
68,
-23,
1,
-32,
-38,
48,
-26,
62,
18,
-40,
-39,
-6,
-45,
21,
-16,
46,
-22,
-16,
-2,
0,
-5,
39,
47,
31,
-26,
0,
-2,
-35,
56,
-2,
-11,
45,
-7,
-7,
19,
-22,
-5,
6,
-17,
33,
27,
-3,
-7,
18,
64,
13,
45,
-43,
-56,
10,
96,
-4,
-11,
14,
-25,
35,
33,
-27,
13,
-18,
-53,
12,
-48,
11,
12,
-12,
51,
21,
-33,
-3,
-10,
-8,
20,
64,
-21,
32,
23,
-68,
35,
0,
-22,
18,
-1,
-24,
-7,
30,
-21,
19,
-13,
-57,
14,
-34,
3,
-12,
-27,
16,
22,
-20,
8,
30,
-2,
-2,
31,
-22,
-17,
-5,
-3,
24,
33,
-38,
-39,
-3,
-11,
9,
-7,
-23,
15,
28,
32,
12,
0,
-13,
-41,
-35,
-15,
-56,
-21,
-5,
-14,
-45,
2,
-80,
44,
-7,
-11,
9,
78,
-32,
35,
-57,
12,
21,
-5,
-18,
0,
-19,
-7,
-51,
-7,
-5,
27,
35,
-48,
-21,
11,
20,
-43,
-19,
14,
-1,
11,
-21,
-10,
-24,
16,
-5,
-21,
-1,
36,
11,
32,
-33,
-13,
51,
-40,
-19,
3,
-8,
0,
-20,
22,
27,
9,
26,
1,
-9,
4,
62,
4,
-11,
14,
0,
3,
26,
-100,
17,
45,
9,
-31,
-31,
6,
28,
6,
-31,
-37,
-56,
47,
44,
-2,
-4,
-21,
13,
-34,
18,
11,
58,
35,
16,
-21,
8,
8,
3,
-6,
10,
-12,
-13,
25,
-11,
-45,
-29,
-16,
-7,
4,
-30,
-73,
39,
-16,
-77,
-43,
-15,
-29,
-5,
38,
-3,
-1,
-9,
-24,
-39,
-13,
6,
6,
6,
40,
-42,
22,
15,
32,
-10,
21,
6,
2,
-17,
-28,
28,
2,
39,
-10,
-58,
2,
-42,
-32,
-21,
-34,
57,
-22,
14,
-2,
38,
30,
-7,
-2,
10,
65,
26,
-65,
-53,
35,
6,
-13,
-17,
-61,
-50,
58,
9,
16,
-8,
19,
18,
21,
46,
-23,
11,
-12,
10,
19,
-26,
10,
56,
-54,
-40,
47,
25,
-10,
-27,
-7,
30,
7,
-58,
-13,
56,
34,
-18,
-29,
-29,
7,
-17,
16,
23,
23,
-21,
13,
-38,
24,
-22,
-19,
-37,
19,
12,
1,
0,
-4,
-39,
0,
-41,
5,
-13,
45,
-38,
11,
84,
-9,
-7,
-46,
6,
-38,
-11,
30,
-19,
-34,
-1,
0,
25,
-16,
50,
26,
25,
-23,
0,
-64,
-10,
33,
-55,
64,
2,
-16,
-5,
2,
-8,
-12,
11,
-48,
-23,
23,
-27,
-17,
-15,
-20,
2,
68,
-12,
41,
23,
22,
-28,
-37,
24,
35,
-9,
-44,
-72,
-24,
-4,
-26,
-18,
19,
50,
-71,
44,
7,
13,
-8,
35,
11,
-21,
-38,
-39,
47,
-18,
14,
-7,
-6,
-10,
-2,
51,
-61,
5,
-42,
-8,
-2,
-28,
-13,
23,
-14,
2,
5,
14,
8,
22,
-14,
-13,
-9,
15,
22,
-7,
-12,
28,
16,
19,
3,
-20,
-23,
63,
-42,
-8,
-15,
5,
0,
17,
2,
-59,
-10,
-18,
-20,
-6,
-3,
24,
71,
14,
-3,
12,
15,
-36,
19,
9,
-3,
-26,
8,
0,
58,
-8,
23,
1,
42,
57,
-10,
4,
8,
-29,
36,
35,
2,
20,
11,
34,
37,
54,
12,
1,
31,
29,
-71,
-7,
19,
24,
0,
44,
-42,
5,
-22,
-8,
28,
-44,
1,
-14,
-9,
0,
-51,
44,
19,
41,
11,
26,
17,
-19,
0,
3,
15,
-25,
9,
0,
-6,
-4,
-15,
-27,
-13,
3,
43,
-26,
-26,
9,
-36,
-22,
-8,
63,
88,
51,
-24,
8,
70,
-2,
-1,
-35,
7,
-24,
7,
29,
0,
-76,
6,
6,
14,
-13,
29,
-6,
-45,
-25,
1,
36,
-30,
-49,
-17,
-21,
34,
-4,
-4,
-13,
11,
-20,
-23,
-15,
-30,
-46,
-6,
-44,
-46,
18,
15,
-6,
14,
64,
6,
12,
19,
13,
27,
-61,
-31,
48,
0,
6,
-3,
-12,
23,
9,
18,
3,
-44,
14,
-25,
38,
19,
-24,
-25,
26,
5,
-24,
-37,
19,
-14,
71,
-9,
40,
-38,
-7,
-6,
104,
-41,
7,
2,
0,
-8,
58,
-41,
16,
-20,
-7,
57,
3,
-71,
39,
-38,
26,
0,
-1,
-31,
68,
-9,
16,
0,
2,
1,
-17,
43,
-41,
53,
12,
-49,
31,
-6,
-48,
17,
-21,
16,
-11,
51,
-2,
-32,
-31,
21,
-35,
9,
54,
25,
-25,
-26,
46,
43,
31,
-63,
-19,
-12,
8,
-34,
14,
64,
29,
-50,
8,
-30,
-14,
-31,
-14,
-16,
-41,
-3,
-5,
26,
13,
-20,
0,
-24,
10,
-27,
-13,
-27,
55,
4,
0,
50,
-8,
2,
24,
-29,
-18,
12,
40,
18,
17,
-26,
2,
3,
3,
9,
-36,
-21,
-42,
-50,
1,
41,
38,
-4,
-59,
-7,
1,
15,
-35,
32,
-18,
57,
0,
13,
26,
-2,
-6,
-6,
20,
5,
-24,
25,
50,
24,
15,
29,
-14,
-18,
-1,
6,
22,
-25,
-4,
-67,
33,
-41,
-21,
25,
-29,
-37,
-3,
-29,
-44,
-6,
-15,
-7,
32,
-35,
-18,
-25,
-18,
-15,
-56,
-7,
32,
-61,
-29,
-48,
13,
-13,
-33,
-37,
21,
53,
2,
12,
-24,
7,
4,
5,
13,
-6,
34,
3,
12,
-2,
20,
-4,
1,
16,
16,
21,
48,
-15,
47,
-23,
-19,
-27,
-44,
47,
-20,
-37,
-32,
37,
-33,
0,
46,
-15,
7,
9,
13,
-29,
-9,
-14,
20,
25,
-27,
9,
8,
-6,
48,
-37,
24,
-16,
25,
-33,
5,
-5,
5,
74,
6,
38,
39,
-8,
14,
-57,
-22,
-10,
-35,
5,
-20,
7,
52,
-52,
-2,
-7,
15,
-45,
23,
-16,
16,
-18,
-7,
-6
] |
Moore, J.
This is an action of trespass brought in justice’s court for the removal of what was claimed to be the line fence between the lands of the parties. The defendant pleaded the general issue, and gave notice of title. The case was certified to the circuit court by the magistrate, where a trial resulted in a verdict in favor of plaintiff for $13.30. The material part ot the declaration is as follows:
“For that the defendant on, to wit, the 20th day of April, A. D. 1895, with force and arms, the close of the said plaintiff, situate in the township of Hamlin, in said county, and known and described as being all that part of S. W. ¶ of the N. W. fractional lying north of county drain known as ‘Sidewell and Relaid Mills Drain,’ broke and entered.”
It was admitted that defendant was the owner of land in the same township, but it is now said that the declaration is not specific enough to entitle plaintiff to recover, as it omits all reference to any section. The land Owned by the parties to the litigation was on section 6. If the declaration had made ho reference to the county drain known as “Sidewell and Relaid Mills Drain,” it is probable the objection would have been well taken. The record discloses, and the jury found as a matter of fact, that there are no other lands on the southwest quarter of the northwest fractional quarter in the township of Hamlin lying north of this county'drain except on section 6. A drain of the permanence and character of this county drain is a known boundary or monument (Kinnie v. Bare, 68 Mich. 635), and we think the description in the declaration was specific and sufficient.
The jury found that the grantors to the parties to this suit in good faith employed a surveyor to determine the boundary line between the lands now owned by the plaintiff and defendant, and that the line thus established was regarded- by the grantors and by the subsequent purchasers and owners as the boundary line until the purchase by Mr. Willoughby, and that it was acquiesced in for more than 15 years before the alleged trespass, and that the wire fence which was destroyed was built on the line established by the survey for the parties who procured the survey to be made. The jury found on the part of the defendant that the wire fence was from one to three rods north of the eighth line according to the government survey, and it is insisted by the defendant that the alleged trespass did not occur upon the land described in plaintiff^ declaration, but occurred north of that line, and that plaintiff cannot recover. In Diehl v. Zanger, 39 Mich. 606, it was said: “The long, practical acquiescence of the parties concerned in supposed boundary lines should be regarded as such an agreement upon them as to be conclusive, even if originally located erroneously.” See Smith v. Hamilton, 20 Mich. 433 (4 Am. Rep. 398); Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270; Dupont v. Starring, 42 Mich. 492; Burns v. Martin, 45 Mich. 22; Jones v. Pashby 67 Mich. 459 (11 Am. St. Rep. 589). If, then, the agreement as to what should be regarded as the true line between these two descriptions, which was made when the surveyor was employed, is conclusive, it would logically follow that the line so established was the south line of the northwest quarter of the northwest quarter, and the north line of the southwest quarter of the northwest quarter.
We think it unnecessary to discuss the other assignments of error. Judgment is affirmed.
The other Justices concurred. | [
-27,
54,
0,
-6,
-61,
9,
27,
-23,
30,
64,
-24,
-20,
-27,
45,
-9,
-31,
-38,
-24,
0,
28,
26,
-26,
-5,
25,
12,
13,
-9,
-12,
-75,
28,
-34,
-3,
-42,
5,
-1,
-19,
4,
-30,
0,
0,
-44,
19,
3,
-46,
26,
7,
36,
36,
22,
-25,
3,
5,
38,
-44,
-47,
7,
-1,
37,
-7,
-7,
-14,
3,
-4,
18,
53,
-5,
-16,
-28,
9,
-3,
18,
22,
2,
-40,
11,
31,
11,
-5,
-37,
0,
-11,
49,
0,
-5,
-46,
17,
-40,
-5,
37,
12,
29,
33,
-43,
44,
8,
-8,
5,
-28,
-40,
21,
1,
10,
13,
-2,
-12,
-18,
-31,
-44,
19,
15,
8,
-23,
16,
-30,
-8,
-37,
-6,
-35,
58,
3,
11,
-9,
27,
32,
-52,
1,
31,
-55,
-30,
-6,
-6,
-18,
-29,
-22,
26,
25,
-23,
6,
11,
17,
17,
-3,
15,
-16,
37,
-2,
23,
24,
12,
-21,
-33,
1,
56,
-16,
-16,
-14,
5,
-8,
-30,
24,
25,
20,
13,
-29,
-92,
12,
-5,
0,
0,
15,
28,
5,
22,
-21,
-19,
-59,
-42,
1,
18,
44,
23,
-69,
16,
7,
-53,
-20,
-19,
-30,
-31,
16,
62,
-22,
5,
-34,
-14,
28,
-14,
-7,
-16,
0,
19,
-6,
-6,
-17,
-47,
-25,
42,
6,
-50,
-34,
-10,
-30,
-28,
9,
29,
-5,
72,
9,
21,
-18,
19,
-4,
-23,
43,
-40,
-31,
-41,
-1,
45,
-39,
-4,
-5,
-8,
6,
0,
-3,
-24,
25,
6,
-17,
-35,
-3,
-42,
-2,
42,
-22,
-17,
-30,
29,
41,
-50,
-18,
-37,
17,
30,
9,
-7,
-18,
-24,
8,
28,
36,
-18,
-13,
-26,
38,
2,
-34,
-41,
1,
-39,
27,
24,
-10,
-47,
-26,
5,
41,
-10,
-10,
23,
-24,
-18,
31,
-12,
6,
-22,
23,
-4,
47,
-22,
-10,
-23,
-2,
0,
29,
53,
-53,
58,
8,
-2,
7,
-29,
-67,
6,
-5,
17,
-12,
52,
40,
41,
33,
-33,
49,
-6,
26,
36,
3,
22,
10,
-15,
5,
-19,
-20,
13,
34,
26,
12,
-10,
17,
3,
21,
34,
9,
33,
19,
-20,
-30,
-35,
-5,
65,
-19,
28,
-4,
53,
-15,
-33,
13,
-7,
-22,
-17,
34,
-18,
19,
-37,
-25,
-48,
7,
12,
49,
47,
8,
-8,
-11,
15,
-77,
-12,
-47,
2,
15,
23,
-12,
38,
25,
36,
22,
13,
-37,
-22,
21,
17,
-7,
-6,
14,
51,
-14,
0,
-33,
-46,
-1,
-25,
-46,
-3,
47,
-6,
-2,
40,
11,
-28,
-46,
3,
-10,
-10,
59,
-54,
25,
-33,
-7,
43,
12,
0,
1,
0,
-45,
-12,
0,
8,
-44,
0,
0,
10,
30,
25,
-57,
9,
-36,
46,
26,
-7,
35,
11,
21,
24,
12,
39,
-17,
-54,
-27,
-21,
-10,
-68,
57,
30,
-12,
-50,
-47,
-29,
48,
6,
3,
11,
20,
-46,
-60,
-23,
22,
30,
-24,
40,
-36,
16,
17,
-19,
-8,
-45,
19,
-22,
-35,
-36,
35,
0,
79,
20,
-45,
-13,
6,
18,
-16,
-15,
-26,
45,
-56,
-9,
-16,
-24,
-43,
-9,
14,
19,
17,
-14,
19,
9,
0,
28,
36,
0,
-4,
46,
20,
-13,
44,
-2,
-39,
-16,
33,
-50,
32,
-16,
36,
14,
-31,
-15,
5,
12,
62,
-10,
0,
-31,
-67,
22,
-93,
-8,
-1,
45,
35,
-11,
18,
4,
20,
-25,
-21,
-28,
15,
0,
11,
-4,
6,
-43,
-39,
3,
30,
70,
68,
-58,
35,
35,
-37,
-4,
-36,
47,
-20,
-21,
-36,
18,
8,
-49,
-50,
-26,
3,
13,
-63,
14,
3,
43,
22,
49,
-18,
4,
-24,
-10,
9,
28,
-67,
11,
18,
-47,
-38,
-5,
67,
-37,
-27,
-2,
-5,
80,
44,
33,
17,
20,
9,
-42,
-30,
-52,
-41,
39,
-20,
-15,
45,
18,
5,
34,
-11,
-39,
-16,
45,
-18,
-5,
-40,
-34,
38,
3,
-11,
-47,
36,
39,
53,
20,
-46,
7,
-2,
16,
10,
-13,
38,
-20,
-26,
11,
16,
-74,
30,
-10,
32,
-37,
15,
25,
6,
13,
-7,
-14,
22,
-12,
-30,
-42,
-35,
-7,
-16,
-44,
-10,
1,
-10,
-4,
31,
25,
21,
13,
10,
49,
0,
67,
-43,
45,
0,
22,
23,
-17,
10,
-6,
29,
-28,
-33,
19,
-23,
-7,
-27,
-4,
-58,
29,
19,
39,
56,
37,
-46,
-18,
-2,
29,
16,
4,
41,
-8,
35,
-4,
20,
8,
15,
10,
-32,
4,
9,
17,
4,
-3,
-17,
61,
51,
15,
27,
-2,
-42,
2,
0,
-40,
4,
10,
55,
-15,
57,
15,
21,
10,
12,
55,
-30,
-20,
8,
21,
-4,
-23,
10,
-35,
6,
22,
24,
-19,
-37,
10,
38,
30,
56,
-17,
-27,
26,
-22,
-61,
19,
39,
-24,
6,
18,
-40,
43,
14,
-27,
14,
35,
48,
-28,
16,
0,
-20,
-6,
16,
-26,
1,
-20,
-2,
-43,
33,
-69,
13,
43,
-39,
1,
-46,
-11,
26,
67,
-29,
-26,
22,
-16,
-23,
-27,
1,
-66,
-52,
-16,
36,
-49,
27,
-21,
-56,
-1,
-40,
2,
-29,
5,
33,
-5,
-47,
22,
0,
40,
-23,
65,
-41,
0,
-32,
46,
3,
34,
29,
33,
0,
-90,
-54,
0,
-15,
49,
1,
6,
-30,
25,
-8,
-38,
-15,
26,
7,
-5,
8,
-3,
25,
13,
-21,
12,
53,
-41,
13,
15,
-36,
14,
-9,
-25,
11,
-38,
-19,
43,
-19,
37,
2,
29,
-45,
7,
-16,
15,
-4,
-45,
13,
-6,
-26,
-22,
49,
-36,
-21,
-16,
-34,
18,
9,
-11,
-27,
30,
-13,
9,
-2,
23,
4,
-8,
-39,
-28,
0,
20,
-4,
-46,
4,
22,
-47,
-15,
23,
-3,
66,
66,
20,
-32,
10,
39,
-13,
-8,
-5,
-2,
-29,
-23,
14,
-36,
4,
49,
-21,
-95,
-8,
-9,
46,
-5,
-28,
-29,
-71,
-57,
-46,
-17,
-54,
-16,
0,
34,
20,
17,
1,
4,
-26,
71,
-11,
10,
-1,
43,
-4,
-7,
8,
-13,
13,
23,
3,
-84,
29,
-30,
30,
0,
-48,
37,
-5,
16,
2,
-9,
-13,
17,
-1,
27,
22,
16,
1,
0,
-59,
-9,
-47,
-11,
37,
72,
-18,
7,
-34,
31,
6,
28,
-9,
31,
-13,
-67,
38,
-6,
55,
-9,
6,
48,
30,
-52,
32,
-30,
-11,
91,
-12,
8,
43,
-22,
-19,
-44,
13,
0,
48,
-7,
4,
-19,
-64,
-12,
-38,
5,
49,
27,
1,
22,
10,
-43,
57,
71,
44,
-37,
-36,
28,
73,
15,
17,
46,
-40,
-1,
-28,
-41,
32,
-20,
-30,
33
] |
Per Curiam.
The defendant corporation executed two chattel mortgages, — one to defendant Kock, and the other to complainant. Kock foreclosed his mortgage. Intervener, Fox, was a constable, and, at the direction of Kock, and under his chattel mortgage, took possession of all the property, including the factory and plant, advertised them for sale, sold them to Kock, and, after the sale, delivered to him the keys and possession of all the properly. Afterwards complainant filed a bill in equity against Kock and the corporation, and asked for the appointment of a receiver. A receiver was appointed, and then Fox filed his petition, praying that he be allowed $100 for his services in foreclosing for Kock, and it was allowed.
If Fox has any claim for his services, it is against Kock, who alone employed him. He chose to surrender the property without claiming his fees. In so doing, he abandoned his lien, and relied upon the personal liability of Kock. He rendered no services to complainant, or creditors generally.
Decree reversed, with costs, and petition dismissed. | [
23,
0,
-15,
26,
-25,
-28,
-17,
6,
-11,
2,
30,
0,
-7,
55,
-15,
7,
28,
-35,
-23,
9,
54,
-27,
-44,
8,
-15,
-20,
-13,
-54,
11,
3,
-8,
-44,
5,
10,
-24,
7,
4,
-6,
38,
14,
11,
-22,
27,
-25,
-17,
16,
-34,
-50,
4,
-20,
14,
19,
24,
-48,
-52,
-22,
-30,
-37,
9,
-21,
-15,
-13,
12,
-23,
-16,
60,
-28,
7,
62,
2,
2,
-34,
33,
3,
31,
-30,
0,
-40,
4,
-16,
-17,
-31,
60,
21,
-24,
-21,
2,
0,
-18,
12,
-10,
44,
-11,
-36,
-23,
20,
34,
11,
-18,
44,
14,
-28,
-57,
5,
21,
-39,
-20,
-85,
-18,
-9,
-19,
-10,
11,
-1,
-30,
48,
-8,
8,
30,
-24,
-8,
27,
-1,
-56,
15,
30,
-50,
0,
-41,
46,
22,
-22,
-47,
29,
-25,
-16,
-9,
-3,
21,
15,
39,
16,
-56,
-34,
-21,
-41,
31,
-20,
3,
5,
-60,
-19,
-24,
42,
28,
38,
-5,
19,
5,
-9,
42,
-32,
10,
-1,
-8,
9,
-17,
18,
-19,
9,
56,
63,
-63,
-59,
-24,
-43,
-7,
-13,
0,
-15,
-20,
38,
-49,
5,
82,
-19,
-4,
-14,
48,
19,
15,
3,
-4,
-2,
-9,
13,
34,
22,
49,
34,
-25,
-4,
-41,
-11,
36,
-20,
39,
-22,
13,
1,
-15,
30,
-52,
-48,
-39,
15,
-47,
1,
14,
14,
67,
35,
-37,
-12,
-60,
-49,
-6,
-33,
31,
0,
-41,
-45,
-18,
12,
0,
-18,
55,
3,
13,
-24,
-13,
52,
9,
-5,
-47,
-34,
-34,
-11,
20,
5,
-35,
-12,
21,
18,
6,
-4,
-62,
48,
13,
-4,
46,
-11,
-46,
24,
4,
-40,
0,
-8,
-19,
1,
-43,
-6,
13,
24,
-21,
-25,
-60,
58,
-29,
-17,
32,
-14,
-21,
-12,
-12,
41,
50,
14,
-6,
9,
32,
8,
10,
1,
60,
-7,
-34,
-41,
15,
-18,
-6,
-17,
-31,
1,
1,
21,
6,
0,
37,
-26,
7,
-41,
20,
25,
26,
46,
-26,
18,
0,
-26,
50,
0,
-27,
41,
13,
-50,
46,
-48,
-4,
29,
20,
-41,
-14,
-4,
7,
5,
27,
-19,
-22,
43,
-12,
15,
23,
-33,
38,
-17,
-27,
46,
-22,
15,
-16,
21,
-41,
7,
50,
35,
-14,
-8,
-49,
52,
33,
-25,
-29,
-8,
14,
-9,
12,
9,
-33,
82,
13,
29,
-30,
-8,
-13,
22,
-36,
-22,
-29,
36,
1,
-17,
48,
15,
34,
29,
6,
31,
-21,
-28,
-34,
10,
19,
11,
-9,
-17,
-47,
-54,
-45,
2,
-17,
7,
-33,
-13,
-80,
-10,
37,
-17,
0,
36,
0,
30,
23,
31,
-24,
-22,
2,
1,
49,
22,
44,
-35,
43,
0,
-4,
-38,
15,
10,
-27,
-10,
-43,
10,
11,
-40,
55,
4,
-29,
-6,
10,
42,
-20,
-22,
-20,
-19,
35,
-11,
-60,
-61,
84,
-26,
-1,
5,
35,
34,
30,
0,
26,
-25,
-12,
17,
28,
-33,
37,
-45,
1,
-9,
39,
25,
9,
6,
-3,
4,
-5,
-9,
-52,
0,
-32,
64,
-4,
4,
-18,
-7,
20,
22,
-78,
-17,
-18,
-58,
-13,
-8,
28,
2,
21,
-10,
-14,
-50,
-22,
2,
-32,
19,
25,
-9,
-20,
35,
-27,
-38,
-9,
-26,
13,
2,
-32,
-22,
20,
46,
12,
57,
10,
24,
28,
40,
-16,
-30,
-69,
-4,
-16,
4,
24,
45,
31,
-2,
30,
7,
-35,
7,
38,
16,
-17,
3,
-9,
-48,
-43,
28,
-10,
16,
3,
10,
12,
19,
13,
36,
-43,
-24,
-15,
12,
32,
13,
11,
11,
29,
16,
-33,
-10,
-7,
1,
32,
-52,
14,
-10,
-46,
24,
-9,
-19,
-7,
0,
16,
-21,
7,
-20,
-28,
-17,
-45,
-38,
36,
-41,
-39,
22,
24,
11,
50,
-1,
11,
-6,
5,
-36,
-20,
0,
-29,
8,
8,
37,
-49,
38,
-29,
-24,
-61,
-48,
42,
48,
-6,
36,
4,
45,
14,
2,
5,
-9,
-1,
-3,
11,
51,
28,
31,
-19,
9,
-11,
0,
39,
-40,
18,
59,
-8,
-23,
5,
5,
-23,
5,
20,
23,
-4,
-28,
-24,
-12,
-10,
-47,
-14,
-9,
9,
-44,
24,
-1,
-44,
3,
26,
25,
57,
-19,
-2,
-41,
11,
-75,
25,
-32,
4,
33,
25,
-18,
-15,
35,
-15,
-13,
43,
-9,
58,
30,
21,
37,
-58,
6,
-48,
3,
4,
-48,
28,
7,
-19,
17,
49,
-51,
-6,
6,
1,
6,
-2,
-26,
-21,
-11,
-3,
21,
18,
-28,
4,
-4,
-44,
111,
1,
24,
-11,
14,
-34,
25,
-15,
-12,
11,
21,
-10,
-17,
3,
-35,
-22,
-26,
-9,
-16,
85,
1,
-6,
-60,
-3,
-37,
-14,
34,
-1,
3,
29,
9,
-75,
41,
-57,
-12,
-41,
-26,
24,
11,
37,
-12,
-8,
5,
-14,
26,
26,
35,
4,
30,
-34,
-13,
-11,
-6,
8,
-16,
-54,
24,
-48,
10,
26,
18,
10,
60,
-14,
-67,
11,
-53,
-43,
11,
-24,
-20,
39,
9,
17,
-18,
13,
-4,
-21,
-3,
13,
13,
8,
-34,
51,
26,
32,
-6,
29,
-34,
7,
-17,
-50,
25,
59,
13,
45,
-27,
18,
35,
-20,
-8,
39,
7,
-34,
-4,
11,
-13,
-28,
-64,
-11,
-2,
2,
25,
-2,
-22,
-45,
24,
-25,
8,
25,
-22,
-80,
4,
12,
2,
3,
36,
-2,
-42,
-17,
56,
-28,
-19,
25,
52,
11,
-16,
-37,
-18,
22,
11,
49,
55,
-24,
13,
-52,
-1,
-6,
-25,
31,
21,
5,
-19,
-24,
15,
-13,
-49,
24,
40,
-5,
-38,
24,
-43,
-51,
35,
1,
-16,
31,
0,
7,
23,
-8,
-37,
0,
-1,
7,
-15,
-36,
59,
-27,
46,
-7,
26,
5,
-35,
0,
43,
9,
6,
-15,
26,
55,
0,
8,
-20,
16,
19,
-21,
46,
-16,
19,
33,
-20,
-2,
23,
-4,
-20,
24,
21,
14,
0,
-60,
17,
42,
9,
-19,
22,
-31,
-29,
-8,
37,
27,
-30,
56,
27,
-6,
22,
39,
2,
-2,
41,
-4,
-47,
2,
-36,
-41,
-10,
19,
0,
19,
-2,
-46,
-11,
11,
3,
74,
-24,
-11,
31,
80,
-21,
22,
-21,
-47,
29,
-35,
-22,
-47,
7,
30,
-1,
23,
53,
40,
4,
-14,
-3,
58,
-1,
41,
-14,
-24,
-27,
-21,
9,
-2,
22,
15,
-5,
0,
27,
-67,
-40,
-16,
0,
-43,
-17,
24,
33,
5,
20,
-21,
-31,
-3,
7,
23,
37,
-12,
9,
8,
-9,
15,
26,
-15,
26,
-40,
-26,
-33,
22,
32,
-8,
-29,
10,
-13,
72,
-33,
11,
42,
47,
13,
49
] |
Moore, J.
January 3, 1898, complainants filed a bill for the foreclosure of a vendor’s lien under a land contract. February 18, 1898, a decree was entered in which it was found that $10,802 was due, and directing the defendants to pay the same on or before March 21, 1898. In case of nonpayment by that date, sale might be made by a circuit court commissioner at any time thereafter. The decree also provided that Mrs. Bowling should be liable personally for any deficiency. It gave the possession of the premises to defendants for 30 days from the date of the decree. From then until May 1, 1898, they were allowed to occupy the premises upon paying $50 monthly in advance as rental, to be applied upon the amount found due and costs. If this rental was not paid, the decree provided for the appointment of a receiver to take possession of the property. From this decree, defendants appeal.
The land contract was in the usual form, except in one or two particulars. It contained these provisions:
“ The parties hereto further mutually agree that the said party of the second part shall have possession of said premises on and after this date, while he shall not be in default on his part in carrying out the terms hereof, taking and holding such possession hereunder; and he shall keep the same in as good condition as they are at the date hereof, until the said sum shall be paid as aforesaid; and if said party of the second part shall fail to perform this contract, or any part of the same, said parties of the first part shall, immediately after such failure, have a right to declare the same void, and retain whatever may have been paid hereon, and all improvements that may have been made on said premises, as stipulated rents for the use thereof, and may consider and treat the party of the second part as their tenant holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom; that time shall be considered of the essence of this contract; and that this contract may be assigned only after consent of said parties of the first part in writing has been indorsed hereon. And it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. ”
The record shows that, when the bill was filed, $10,000 of the principal sum was due upon the contract, and some interest and taxes. After the principal was due, defendants said that, if given a little time, they thought they could sell the property and pay the debt. The bill was not at once filed, and some small payments were made after the principal came due. It is urged that the receipt of these payments waived a forfeiture, and made the vendees tenants, entitled to notice before their tenancy could be terminated.
All of the principal was due July 1, 1897. Mr. J ones assured Mr. Bowling that he wanted the money due, but had no desire to be hard upon the defendants. Mr. Bowling thought he could sell the property, if given a little time, and said that, if the payment could be delayed until the 1st of December, if the property was not sold, or some arrangement made, he would make no trouble, but would give a quitclaim deed. During this time he was to pay $50 a week until the interest was paid up, and he made two or three weekly payments. What was done was not intended by the parties as a new contract, but was intended simply as a delay in enforcing the contract, which would be in -the interest of the defendants. We do not think they can now be heard to say, when they have failed to carry out the arrangement, that it changed the terms of the contract.
After the making of the contract, Mr. Jones conveyed the property to his father. The deed was made subject to this contract. It is now said that, because complainant had alienated his title, he cannot maintain this action. The record, however, shows that, long before this bill Was filed, the father reconveyed the property to Mr. Jones, and that Mr. Bowling was notified of this. Defendants never put their failure to pay what was due upon any such ground.
It is insisted by defendants that the land contract is an equitable mortgage, and that the proceeding is one to foreclose an equitable mortgage, and should be governed by the same rules as the foreclosure of mortgages in chancery. It is said that one year should elapse* after the bill is filed before the sale; that notice of sale should be published six weeks; and that the vendee, like the mortgagor, should be entitled to the possession of the property until the sale of the property is confirmed. Counsel ask, ‘ ‘ Why should not the proceeding to foreclose a land contract be the same as to foreclose a mortgage?” Our attention is not called by counsel on either side to any authorities which are conclusive of the questions involved here. It may be said, however, that the legal title to the land remains in the mortgagor, while the equitable title is in the mortgagee, who cannot acquire the legal title except in the manner prescribed by law. In the case of a land contract, the legal title remains in the grantor, while the equitable title is in the vendee. The legal title cannot be acquired by the vendee until he has performed the conditions of the contract. In discussing the question of liens, it is said: “A distinction exists between the lien of the grantor after conveyance, and the interest of the vendor before conveyance.” 3 Pom. Eq. Jur. § 1260, states it as follows:
“There is a plain distinction between the lien of the grantor after conveyance, and the interest of the vendor before conveyance. The former is not a legal estate, but is a mere equitable charge on the land. It is not even, in strictness, an equitable lien, until declared and established by judicial decree. In the latter, although possession may have been delivered to the vendee, and although, under the doctrine of conversion, the vendee may have acquired an equitable estate, yet the vendor retains the legal title; and the vendee cannot prejudice that legal title, or do anything by which it shall be divested, except by performing the very obligation on his part which the • retention of such title was intended to secure, namely, by paying the price according to the terms of the contract. To call this complete legal title a lien is certainly a misnomer. In case of a conveyance, the grantor has a lien, but no title. In case of a contract for sale, before conveyance, the vendor has the legal title, and has no need of any lien: His title is a more efficient security, since the vendee cannot defeat it by any act or transfer, even to or with a bona fide purchaser.”
The vendor, before conveyance, holds the legal title as security for the performance of the vendee’s obligation, as trustee, it is true, for the vendee, subject to his performing hi's agreement.
As we have seen, there is a very marked difference between the interests held in the real estate by a vendor under a land contract and a mortgagee; and we think this difference will answer the question why a land contract should not be foreclosed the same as a mortgage. In the case of a mortgage, the mortgagee knows the limitations put upon his possession by the statute. There is no such limitation placed upon the vendors in land contracts. Unless the vendee is given the right of possession by the contract, he is not entitled to it. Druse v. Wheeler, 22 Mich. 439, 26 Mich. 189; Buell v. Irwin, 24 Mich. 145; Moyer v. Scott, 30 Mich. 345; Burnett v. Caldwell, 9 Wall. 290.
In this case it was agreed that Mrs. Bowling should have possession of the premises while she should not be in default, and that, in case of her default, the vendor might take immediate possession of the premises. To hold that, after a default on the part of the vendee, a sale of the premises cannot be made until one year and six weeks have elapsed, would be to read into the contract conditions not contemplated by the parties when they made it.
Defendants had been in default six months when the bill was filed. The decree was not taken until six weeks later. They were then given 30 days in which to perform the contract, and possession of the premises for a like period of time before they were required to account for its rental value. We do not think they have any occasion to complain of this decree. The commissioner, in advertising the property, should be directed to do it for the same length of time, and in the same manner, as in a foreclosure of mortgage.
The other objections have been considered, but will not be discussed.
The decree is affirmed, with costs.
The other Justices concurred. | [
-7,
30,
-32,
16,
13,
36,
44,
5,
19,
1,
18,
-3,
-14,
25,
-19,
27,
-20,
7,
-17,
32,
-38,
11,
-27,
-20,
13,
40,
-12,
-39,
-19,
7,
10,
-23,
-37,
59,
8,
-40,
-4,
-25,
28,
-15,
5,
54,
-22,
17,
22,
-11,
5,
-15,
30,
7,
-39,
-53,
17,
-5,
-14,
-14,
-59,
-29,
-23,
-16,
-42,
-35,
-6,
-11,
-8,
0,
-12,
-10,
16,
-25,
25,
1,
19,
-11,
21,
-4,
-40,
-27,
-43,
-30,
6,
-67,
25,
4,
-25,
25,
14,
-17,
17,
-7,
-59,
17,
-7,
68,
2,
-19,
33,
18,
37,
35,
-24,
-35,
-52,
40,
2,
-15,
-45,
-20,
-47,
4,
0,
-27,
58,
-26,
-44,
-26,
-28,
-18,
-6,
-58,
11,
9,
26,
-48,
-20,
20,
-37,
-33,
-20,
19,
-4,
-15,
-27,
3,
-28,
6,
9,
12,
-17,
-8,
3,
-39,
-5,
-49,
-29,
28,
-7,
19,
-23,
-14,
-3,
8,
6,
41,
5,
-48,
36,
-2,
-1,
-37,
39,
-17,
7,
-85,
-1,
22,
-32,
-25,
-17,
12,
13,
13,
-21,
-10,
18,
-37,
28,
-38,
-11,
-67,
7,
23,
-31,
-13,
59,
12,
-8,
18,
-11,
12,
7,
-33,
-5,
8,
-2,
-26,
-16,
-13,
10,
8,
-54,
-19,
-18,
-22,
9,
-11,
43,
38,
-10,
38,
-22,
-12,
-45,
2,
-40,
31,
-26,
14,
-13,
14,
-10,
-12,
-62,
25,
-54,
-44,
25,
8,
47,
7,
-30,
19,
-10,
27,
-1,
4,
-6,
3,
-13,
28,
-12,
41,
-76,
-14,
-6,
41,
-25,
39,
-1,
12,
-41,
59,
-34,
56,
24,
0,
-38,
3,
-15,
-11,
-12,
23,
10,
-17,
33,
-31,
-9,
-21,
10,
82,
-22,
26,
9,
32,
-18,
-30,
-49,
4,
-56,
-13,
-27,
-19,
-1,
27,
-4,
-18,
51,
20,
-25,
-19,
-1,
-23,
-14,
25,
18,
19,
-29,
14,
35,
-2,
-61,
-69,
5,
0,
-2,
-4,
-16,
-23,
-21,
-47,
-26,
22,
-20,
-21,
14,
37,
-14,
-29,
17,
30,
70,
11,
-19,
16,
20,
10,
70,
-15,
-43,
40,
5,
-17,
18,
-33,
4,
56,
9,
-7,
-57,
-5,
20,
28,
16,
27,
24,
11,
9,
-4,
-11,
39,
-52,
4,
-51,
37,
11,
-6,
-32,
16,
-16,
44,
31,
16,
-1,
-54,
9,
-24,
-19,
-10,
57,
-9,
28,
39,
16,
-19,
-18,
-2,
-8,
-19,
25,
11,
28,
-6,
-6,
36,
65,
-16,
4,
-25,
34,
-26,
-25,
18,
-31,
8,
27,
-46,
0,
-15,
-63,
-4,
-2,
9,
-18,
-29,
-32,
36,
-4,
3,
13,
12,
17,
-37,
35,
-13,
-23,
35,
0,
-32,
31,
17,
36,
-11,
5,
-19,
-17,
-27,
18,
3,
7,
44,
-41,
19,
23,
-2,
24,
16,
-45,
-41,
-36,
36,
-1,
57,
-13,
23,
29,
5,
-27,
-19,
35,
6,
29,
8,
17,
35,
7,
-25,
71,
36,
12,
-11,
51,
-18,
-27,
-1,
2,
29,
-22,
4,
-48,
18,
-54,
33,
54,
-37,
-20,
-1,
4,
-24,
-4,
44,
1,
5,
17,
16,
-1,
-22,
-12,
-16,
-49,
-20,
43,
-9,
2,
-30,
-21,
-22,
-32,
-21,
-7,
41,
30,
37,
23,
17,
1,
-15,
16,
19,
14,
43,
-26,
-40,
12,
15,
41,
13,
36,
-20,
43,
-31,
20,
-15,
-43,
-4,
-26,
23,
42,
88,
13,
-23,
-24,
-10,
-42,
-33,
-46,
-5,
-39,
1,
8,
-28,
-62,
41,
20,
71,
17,
41,
0,
-29,
-6,
-8,
23,
-29,
-10,
-15,
-28,
-6,
15,
-1,
4,
27,
25,
-3,
5,
-49,
69,
-21,
25,
-14,
-53,
64,
-38,
6,
17,
-33,
-19,
-18,
-42,
-18,
14,
29,
-58,
-9,
39,
-31,
54,
-10,
-19,
59,
-16,
36,
-10,
15,
6,
-15,
-23,
-4,
7,
15,
-2,
15,
-31,
39,
-26,
-32,
-34,
5,
14,
1,
-10,
0,
-5,
-14,
-8,
7,
24,
51,
44,
6,
-5,
38,
0,
-4,
16,
-2,
58,
15,
-5,
27,
-41,
36,
-6,
3,
48,
25,
-39,
12,
5,
1,
-17,
-15,
-3,
35,
-50,
-23,
-8,
58,
-7,
-44,
17,
-23,
-28,
12,
48,
5,
38,
-9,
27,
-42,
27,
5,
44,
-51,
-9,
45,
34,
-1,
45,
-3,
-6,
0,
6,
10,
67,
-14,
21,
-5,
-31,
31,
-3,
-8,
35,
30,
-19,
2,
-35,
-10,
40,
-21,
-7,
54,
1,
-39,
-21,
13,
34,
18,
11,
38,
17,
26,
46,
-30,
14,
22,
5,
30,
-27,
11,
-5,
-11,
-4,
10,
8,
-24,
13,
11,
35,
0,
-7,
-4,
39,
-33,
45,
-3,
-11,
0,
3,
10,
-28,
-17,
5,
24,
-46,
6,
-15,
27,
-41,
-6,
0,
-53,
-27,
-43,
-37,
-14,
19,
-18,
-14,
16,
-22,
20,
4,
-39,
17,
3,
23,
-13,
0,
14,
-20,
3,
18,
29,
20,
0,
26,
-16,
-6,
-23,
35,
-32,
-8,
2,
-25,
-27,
27,
-3,
49,
-8,
4,
-46,
-15,
-17,
5,
-37,
-1,
-51,
42,
-33,
55,
35,
0,
-25,
2,
-26,
-63,
3,
-28,
0,
-1,
-43,
-3,
0,
-20,
4,
25,
26,
-1,
-15,
-11,
-27,
11,
-14,
-13,
-6,
-36,
-23,
-27,
26,
-2,
9,
-11,
45,
-17,
-3,
4,
0,
-20,
7,
-55,
26,
67,
-72,
-16,
-15,
38,
-7,
6,
73,
22,
21,
-54,
-51,
17,
35,
24,
-13,
-35,
15,
-68,
0,
-7,
18,
20,
1,
-72,
16,
-4,
-8,
41,
-16,
39,
-22,
7,
20,
-2,
35,
-5,
23,
34,
-18,
15,
32,
-34,
13,
-8,
0,
29,
-28,
31,
-32,
13,
7,
-13,
51,
-21,
33,
27,
-34,
-30,
64,
4,
-28,
0,
-8,
5,
23,
45,
-31,
-6,
-51,
-10,
42,
32,
12,
13,
-20,
6,
7,
10,
-37,
44,
-10,
-63,
-46,
-35,
32,
-29,
-36,
27,
-9,
29,
-10,
-56,
3,
23,
-26,
12,
2,
1,
32,
-31,
15,
-8,
15,
-59,
-6,
16,
-24,
-2,
-44,
-2,
12,
19,
17,
-52,
-2,
45,
-4,
51,
-1,
-69,
63,
24,
-5,
-13,
15,
-77,
7,
-19,
0,
-26,
12,
46,
-73,
36,
12,
43,
1,
-31,
-26,
38,
-25,
-2,
38,
-7,
9,
26,
11,
-22,
18,
-6,
-38,
-3,
19,
10,
37,
6,
-32,
-17,
-42,
38,
0,
14,
49,
-18,
-50,
-32,
21,
30,
37,
-17,
5,
-2,
26,
6,
-55,
40,
50,
20,
-14,
-50,
0,
52,
24,
-32,
50,
-42,
17,
-43,
-5,
41,
-12,
-29,
50
] |
Grant, C. J.
(after stating the facts). The $5,000 note had been due about five years and eight months when Mr. Sherman died. The other note was also a few months past due. The death of the debtor suspends the running of the statute of limitations. 2 How. Stat. § 8722. It suspends the statute for two years after granting letters testamentary or of administration, and not afterwards. Section 5901, 2 How. Stat., provides that all claims against estates of deceased persons shall be forever barred unless presented within the time limited for that purpose. Claim ant for some reason did not see fit to present its claim when it had the opportunity. There is nothing upon which to base a charge of fraud or concealment of the assets of the estate. Why the will was not presented does not appear. Whether the insurance policy was an asset of the estate we need not determine.
No steps were taken for about 10 years by the claimant, nor until the insurance company had paid the money to the executor of Mr. Sherman’s estate. This did not determine that the money legally belonged to his estate. It is contended that upon his death the policy became hers. So far as this claimant is concerned, it is immaterial to whom the insurance money belonged. Its claim is barred under the statute.
Counsel for claimant contends that creditors may wait until an inventory is filed showing property which can be devoted to the payment of the debts of the deceased, and that the'court has no power to appoint commissioners on claims, or enter an order that claims be heard before the court, until the inventory shows such property. We cannot concur in this view. The presentation of claims is not conditional upon the inventory, nor does the statute require that the inventory precede the hearing of claims. Claimant had an opportunity for its day in court, and failed to improve it. The statute now bars its claim.
Judgment affirmed.
The other Justices concurred. | [
16,
20,
1,
34,
20,
10,
20,
-17,
50,
37,
-12,
-34,
29,
22,
10,
-11,
21,
9,
-24,
20,
-15,
-11,
-11,
6,
15,
-17,
-3,
35,
1,
48,
45,
-45,
-25,
2,
-1,
0,
-1,
-25,
30,
49,
14,
-46,
25,
44,
-22,
-40,
13,
-26,
-4,
-3,
41,
-18,
0,
-31,
28,
13,
-6,
-15,
21,
-14,
-36,
-55,
9,
-1,
-32,
82,
6,
14,
-25,
-16,
-6,
22,
24,
31,
21,
-54,
-20,
46,
-5,
-19,
57,
-54,
-4,
-26,
0,
-29,
-21,
-38,
15,
-29,
-66,
-31,
-4,
-59,
-58,
-22,
33,
48,
40,
39,
7,
3,
-47,
-47,
-10,
59,
-20,
-56,
-16,
-76,
-11,
-15,
-4,
24,
10,
12,
-26,
42,
-60,
-9,
54,
3,
41,
-41,
6,
40,
-11,
6,
-29,
19,
-10,
30,
-25,
-8,
7,
27,
-45,
-40,
-38,
-64,
-47,
-20,
0,
-45,
-12,
-4,
56,
-34,
-18,
-9,
6,
80,
-52,
-15,
-36,
12,
-10,
-36,
38,
-52,
34,
-46,
13,
-15,
3,
24,
-9,
-9,
24,
4,
-1,
11,
-47,
8,
13,
34,
15,
-13,
-1,
-34,
-6,
9,
10,
15,
49,
-50,
-14,
37,
26,
-67,
-23,
-7,
8,
50,
18,
36,
-9,
31,
71,
8,
-17,
-55,
28,
20,
-1,
9,
16,
-34,
-33,
0,
-6,
42,
-51,
-7,
-43,
-39,
-17,
-48,
-12,
17,
-2,
-6,
35,
-21,
37,
-1,
10,
-53,
-1,
-19,
-28,
-1,
-21,
54,
-6,
68,
9,
-51,
-4,
33,
54,
7,
-27,
-59,
17,
19,
0,
-17,
-11,
-20,
4,
6,
24,
62,
27,
-53,
-18,
0,
-35,
-42,
-50,
82,
-71,
-38,
27,
0,
-2,
-4,
9,
39,
47,
-45,
61,
-39,
27,
-5,
18,
-27,
-25,
-4,
-24,
32,
-2,
23,
-56,
-12,
-35,
4,
14,
29,
39,
-5,
30,
12,
0,
-3,
57,
30,
1,
-35,
35,
23,
16,
10,
46,
-3,
-16,
-18,
-25,
-20,
-34,
97,
-22,
13,
40,
6,
-24,
-23,
21,
11,
45,
22,
6,
-26,
30,
19,
18,
-7,
39,
39,
-36,
11,
24,
4,
47,
-31,
21,
-14,
-55,
42,
43,
18,
-4,
4,
-11,
-6,
14,
-63,
-8,
68,
-45,
13,
-18,
4,
34,
9,
31,
-2,
-42,
93,
37,
30,
10,
11,
17,
-2,
-43,
-11,
-16,
-10,
28,
-13,
-17,
-61,
0,
-40,
-45,
31,
-52,
-18,
11,
-58,
-8,
0,
28,
40,
-28,
1,
6,
14,
-15,
-7,
26,
24,
-16,
40,
-26,
26,
-38,
-3,
-72,
12,
-12,
-10,
-9,
35,
-43,
-1,
-16,
43,
1,
7,
27,
-35,
-19,
0,
49,
-12,
4,
-34,
46,
-3,
-31,
-20,
-48,
-81,
-1,
57,
-42,
-11,
13,
34,
22,
-79,
17,
49,
-20,
-42,
-34,
3,
-4,
9,
7,
17,
19,
57,
-9,
-33,
29,
-18,
-3,
15,
-17,
12,
-3,
27,
71,
6,
29,
11,
29,
-28,
-4,
61,
25,
-25,
1,
-47,
58,
-26,
-35,
-17,
-9,
-11,
-20,
15,
-14,
-31,
7,
20,
-23,
81,
14,
-32,
-17,
33,
9,
-64,
-14,
-62,
12,
-33,
-44,
-10,
-39,
-26,
-41,
-7,
-7,
-41,
-30,
44,
42,
28,
37,
-43,
0,
-57,
-34,
-5,
-24,
-3,
12,
-25,
68,
46,
24,
37,
21,
-2,
-4,
-35,
-79,
34,
-53,
16,
-9,
46,
39,
-19,
27,
53,
37,
-65,
-18,
14,
-30,
0,
-28,
-7,
-43,
77,
15,
47,
15,
3,
-7,
10,
-4,
24,
-22,
-55,
26,
78,
-10,
-7,
50,
-19,
31,
7,
42,
27,
25,
-40,
5,
-33,
9,
14,
-20,
-8,
-52,
-23,
26,
-2,
-11,
35,
-2,
0,
30,
-12,
-34,
16,
-55,
-20,
-32,
33,
16,
-16,
-26,
-15,
35,
14,
-37,
0,
14,
-1,
-16,
-66,
-14,
-1,
-6,
-18,
-6,
-13,
9,
36,
33,
-3,
29,
-8,
2,
28,
-15,
-30,
-18,
3,
0,
-54,
30,
18,
11,
38,
47,
-13,
-8,
37,
34,
-1,
19,
20,
33,
-42,
44,
-22,
-33,
-17,
9,
-7,
-23,
-35,
-43,
28,
41,
-6,
-15,
-7,
15,
11,
-7,
-74,
-17,
23,
-17,
4,
-6,
32,
7,
-36,
39,
25,
7,
-65,
20,
-5,
-35,
36,
15,
-21,
-13,
1,
17,
-29,
-44,
27,
-1,
17,
-5,
-5,
27,
53,
-25,
17,
45,
13,
-14,
55,
-13,
-37,
15,
31,
-4,
-38,
-12,
3,
12,
49,
1,
27,
10,
32,
14,
49,
-66,
26,
-39,
3,
-18,
2,
21,
21,
-17,
18,
-8,
-44,
-16,
-4,
19,
-51,
0,
-34,
12,
-76,
-30,
-16,
-5,
24,
56,
5,
2,
-16,
-3,
10,
-63,
-18,
-53,
-3,
19,
-38,
51,
-8,
-1,
36,
66,
-11,
-19,
0,
-20,
40,
25,
8,
47,
-2,
8,
0,
-44,
-19,
-28,
22,
-7,
-44,
28,
37,
5,
17,
-13,
-34,
-10,
-27,
-21,
-32,
5,
-45,
16,
16,
40,
32,
-16,
-7,
43,
18,
-15,
19,
-3,
57,
13,
-12,
7,
-33,
-28,
67,
-9,
-25,
26,
-24,
-42,
29,
-8,
15,
48,
-15,
-2,
-34,
23,
49,
31,
26,
-2,
48,
-41,
-49,
1,
-61,
-50,
-33,
-49,
-29,
-16,
29,
14,
-8,
-22,
19,
-6,
-38,
-26,
43,
7,
-19,
11,
39,
-27,
-70,
-47,
-14,
-6,
4,
4,
48,
-18,
-55,
2,
-2,
-22,
48,
-10,
11,
-49,
-8,
-36,
45,
1,
-14,
-21,
32,
-4,
-23,
-8,
-40,
30,
5,
-22,
0,
27,
-35,
33,
-47,
26,
18,
10,
-17,
16,
-15,
-65,
-10,
-35,
-23,
31,
-17,
23,
-66,
-40,
15,
9,
22,
-41,
25,
-3,
-13,
-81,
27,
48,
23,
-38,
0,
-11,
-28,
44,
31,
24,
37,
-19,
-32,
29,
-7,
21,
32,
-2,
13,
-44,
-13,
60,
-16,
12,
-64,
11,
40,
11,
-28,
-33,
35,
7,
8,
-18,
-43,
27,
-10,
55,
-12,
-14,
-4,
-23,
28,
-14,
33,
35,
-62,
-11,
-43,
-17,
21,
-31,
-37,
-4,
35,
-33,
33,
63,
-12,
-27,
-36,
7,
13,
43,
35,
-8,
-5,
8,
-15,
-16,
-9,
-12,
-4,
4,
1,
60,
85,
44,
58,
-51,
-18,
5,
-22,
0,
-15,
8,
-18,
62,
-45,
-40,
14,
14,
-55,
-14,
5,
36,
35,
10,
-31,
-25,
2,
45,
9,
17,
10,
-9,
20,
4,
27,
-19,
37,
-4,
-22,
16,
34,
28,
-87,
30,
-9,
29,
-32,
-43,
12,
-17,
23,
19,
7,
0,
-6,
-4,
-6,
18,
24,
21,
8
] |
Moore, J.
A reference to the case of Lamb v. Constantine Hydraulic Co., 59 Mich. 597, will aid in an understanding of the questions involved in this case. Complainant h^s filed his bill to foreclose a mortgage upon the mill property mentioned in the case just referred to, and to have it declared a first lien upon said property. Defendant company has filed an answer to this bill in the nature of a cross-bill, in which it claims the lease referred to in that case is a mortgage, that there are several thousand dollars due upon it, and asking to have the amount due decreed to be a first lien. The circuit judge found a decree substantially as prayed in the cross-bill, from which decree complainant appeals.
That portion of the lease which it is claimed constitutes it a mortgage reads as follows:
“This indenture further witnesseth that the said Jonathan Lantz and Sarah S. Foreman hereby sell and convey to the said Constantine Hydraulic Company, and to their heirs and assigns, forever, the said lot as aforesaid, with the appurtenances; provided, that if the said Foreman and Lantz, their heirs, executors, administrators, or assigns, shall from time to time, and at all times, well and truly fulfill and keep the covenants and stipulations herein specified on their part to be fulfilled and kept, and shall pay the rents as aforesaid as they may become due, according to the terms and conditions of this agreement, then the grant and conveyance by them of the aforesaid lot of land and premises shall be void and of no effect; otherwise, in full force.”
On the back of the lease was the following indorsement:
“Lease oe Water Power.
“Constantine Hydraulic Company
“to
“Sarah S. Foreman and Jonathan Lantz.
“Register’s Office, ) St. Joseph Comity. ) s '
“Rec’d for record May 24, 1877, at 11 o’clock a. m., and recorded in volume 57 of Deeds, on pages 632, 633, 634, and 635.
“Thomas G. Greene, Register.”
This paper was left with the register of deeds for record, and was recorded in a book containing miscellaneous records. It was labeled on the back, “ Liber 57 of Deeds.” No other record of the paper was made.
Mr. Gordon testified that, prior to making the loan, he visited Constantine and the mill property, and saw from whence the water supply for the mill came, and was told by Mr. Lamb it was furnished by defendant company, and was told something of the terms of payment. He testifies he was not informed the lease was in"writing, and did not know its terms. He was told the money furnished by him would be used to take up another mortgage, and that his mortgage would be the only one. He did not cause any search of the records to be made.
The circuit judge found that, from what Mr. Gordon said and was told about the lease, he must be deemed to have had actual notice of it, and that, whether he had actual notice of its contents or not, he had sufficient notice of the existence of the lease so that it became- his duty to learn its purport and effect. On the other hand, it is said that, while Mr. Gordon might have known the mill owners were renting water from defendant company, he would certainly not infer from that fact that a lien had been put upon the property. In deciding the inference to be drawn, we must look at the situation of the parties. Here was a large flouring mill, the sole motive power of which was water furnished by defendant company. To make the property useful and valuable, the water supply, must be continuous, and not of a temporary character. Mr. Gordon must have known this. He was informed in a general way that there was an arrangement existing between the mill owners and the defendant company. This contract related to a matter that would affect the value of the property. The right to have a water supply to the mill was an appurtenance to the mill. If furnished upon reasonable terms, it would add value to the mill. If it could be cut off, it would greatly impair its value. It could not be said that the mill owners could have the right to water without incurring some obligations upon their part. He was told sufficient so he must have known contract relations existed between these parties which affected the value of the property. It was his duty, when he learned there was a contract of this nature, to learn its terms. He could not assume he was truthfully informed about it, or that it was a contract which would not affect him as a mortgagee, about to take a lien on the property. .“A notice of a lease is notice of all the covenants and provisions contained in it.” 1 Jones, Mortg. (5th Ed.) § 573; Taylor v. Stibbert, 2 Ves. Jr. 437; Doyle v. Teas, 4 Scam. 202; Babcock v. Lisk, 57 Ill. 327.
The decree rendered in the court below was:
“That there now remains due and unpaid upon said lease, to the said Constantine Hydraulic Company, for water rentals, including interest thereon, the sum of $7,393.75, the same being ascertained and computed by the court as follows: Rental from March 1, 1885, to March 1, 1886, on 50 horse power of water at $5 per horse, with interest at 6 per cent, upon semi-annual installments therefrom, respectively, July 1, 1885, and January 1, 1886; also rental for 50 horse power at $10 per horse per annum, from March 1, 1886, to July 1, 1897, payable semi-annually on July 1st and January 1st of each year respectively, together with 6 per cent, simple interest from the respective times for payment aforesaid of each of such installments:”
It is claimed on the part of the complainant that the mill owners should have been required to pay only upon the basis of $5 a horse power, and that successive tenders had been made.of those amounts, so as to discharge the' lien entirely. The record does disclose that tenders were from time to time made by the mill owners upon the basis of $5 a horse power, and those tenders were accompanied by a demand for a receipt in full. The defendant company offered to accept these payments, and give a receipt for the amount paid, to apply on the amount due, and claimed the amount should be fixed by computing the rate at $10 a horse power. It was its claim that it had contracts with Mr. Dodge and others, under which they rented power, and paid at the rate of $10. In Lamb v. Constantine Hydraulic Co., 59 Mich. 597, in construing this lease, it was held:
“The lessee, moreover, is in no wise responsible for the want of a definite rule to measure the rental on the first of March, 1884. That rule must, of necessity, have depended upon the acts of the company after the agreement was entered into; and I think the agreement must remain as it is until a rule shall be established by the rental, in good faith, to other parties, at terms different from that fixed in the lease for the first seven years. By the plain terms of the lease, the rental, .after March 1, 1884, is subject to be fixed and to fluctuate annually according to the rental paid and asked by other parties. Until other parties do rent at a different rate per annum than $5 a horse power, the rental will remain as fixed by the parties in the agreement. ”
The record discloses that contracts were in existence from March 1,1886, with other parties, who agreed to pay and did pay at the rate of $ip a horse power. It is urged that these persons were actually using more power than their contracts called for, and therefore the rate was not so high as $10. The record shows the contracts called for payment at the rate of $10, and that defendant company insisted upon payment at that rate; and under the construction given this lease by the court, to which attention has been called, we think defendant company was entitled to have the computation as it was made, unless its subsequent acts should bring about a different result.
It is claimed by the appellant that Charles H. Barry, as president of the Hydraulic Company, made a settlement with Lamb & Co., by which he agreed that the rent should be $5 per horse power, and he offers as evidence receipts given by Mi\ Barry, as follows: .
“ Received of Lamb & Co. $125, for six months’ water rent, from July 1, 1893, to January 1, 1894.
[Signed] “Charles H. Barry, President.”
“Received of Lamb & Co. $125, for six months’ water rent from January 1, 1893, to July 1, 1893, with the understanding that the accrued rent from March 1, 1885, to January 1, 1893, is to be $5 per horse power, as per their lease.
[Signed] .“Charles H. Barry, President.”
It'is claimed by defendant that Mr. Barry had no authority to make any settlement upon the basis of $5 a horse power, and that, while some of the directors would have been willing to settle upon-that basis if the money were paid at the time the settlement was made, they would have been unwilling to make such a settlement and let the amount stand unpaid. The only evidence of any action taken by the board of directors in relation to what was done by Mr. Barry, as shown by their record, was taken June 11, 1895, when a motion was made and carried that the compromise made between Charles H. Barry and Lamb & Co., whereby Charles H. Barry receipted in full to Lamb & Co., for six months’ rent due said Hydraulic Company, stand approved by said board of directors. Motion was made and carried that the resolutions as they stand in the minutes of the previous meeting in relation to the collection of the money due the Constantine Hydraulic Company from Proctor and Lamb & Co. remain in force, and that the same be duly prosecuted at law or compromised, as the directors may desire. At a meeting held December 18, 1893, which was the previous meeting shown by the record, a resolution was passed which, so far as it relates to Lamb & Co., is as follows:
“ Whereas, Lamb & Co. are in arrears for rent for a large amount, and do not make any proposition in settling the same;
“ Whereas, the Hydraulic Company holds a first lien on the mill and lands of Lamb & Co. as security for the same:
“Resolved, that unless Lamb & Co. do make some satisfactory arrangement for the payment of such rent on or before the 30th day of January, 1894, that proceedings be immediately thereafter commenced for the collection of the same.”
We do not think it can be said this action authorized a settlement of the claim for the entire time upon the basis of $5 per horse power.
It is not clear that, in the computation made by the learned judge, the proper credit is given for the amounts receipted for, and that he has not charged the mill owners at the rate of $10 a horse power for the time covered by the receipt. This can be ascertained by a computation, and, if the deduction was not made, the decree will be modified in that respect.
The learned judge found that the rental from March 1, 1885, to March 1, 1886, should be at the rate of $5 per horse power. The record discloses that a tender of $315.96 was made for rental from March 1, 1885, to January 1, 1886, which tender was refused upon the ground that it was only half enough. Inasmuch as, under the finding, of the coui’t, the amount tendered was sufficient to cover the amount due, we think the effect of this tender was to discharge the lien to that amount; and this amount, with interest at 6 per cent., should have been deducted from the amount of the decree, and the decree should be modified in that respect.
The record discloses (as will appear also by a reference to the case in 59 Mich.) that the-defendant company shut off the water, and that, after the mill owners had repaired the race, they were deprived of water for a period of 43 days; and it is claimed this resulted in damages to the mill owners of $3,065, which should be set off against the amount claimed to be due. The defendant company asserts this claim is unliquidated; that it concerns nobody but the mill owners; and that, as they have taken no appeal, the decree must stand. The record discloses what was conceded on the argument, — that the property is not sufficient to pay the amounts due on both these claims. Whatever amount is included in the decree in favor of defendant company will diminish the amount received by complainant to that extent, so that whatever would properly be a set-off between the mill owners and the defendant company should inure to the advantage of complainant.- There is some difficulty in deciding just what the set-off should be. We are not satisfied from the evidence it ought to be $3,065, for the witness Lamb has not given sufficient data to allow us to say the amount fixed by him was properly reached. We have no difficulty in saying it is not equitable for the defendant company to refuse to furnish water, and at the same time to be charging for it as though it was furnished. The defendant company should not have been allowed any rental for the 43 days it did not furnish water, and that amount should be deducted, with interest. It does appear that at the beginning of the 43 days the mill owners had 3,000 bushels of wheat on hand; that, during the time the defendant company refused to furnish water, it dropped in price 25 cents a bushel. The mill owners had contracts for all the flour they could make out of all their wheat, and they testify they could have saved this loss if they could have had the water turned on. This testimony is not contradicted. It was a loss for which the defendant company was responsible, and we think it equitable it should account for it. This would amount to $750, upon which interest should be computed from September 15, 1884, the time when this loss occurred.
In relation to the question whether the record of the lease was sufficient to put Mr. Gordon upon inquiry, it is claimed, when a paper is left with the proper recording officer, the person leaving it has done his duty, and that it cannot affect the rights of the mortgagee if the record ing officer fails to properly record. There are very respectable authorities sustaining that position, but ' we think it is not sustained by the weight of authority. When this paper was recorded, the Compiled Laws of 1871 were in force. Section 4226 provides for the keeping by the register of an entry book for deeds and an entry book for mortgages. It did not provide-, as now, for any entry book of miscellaneous records. Section 4227 provides that the register shall enter in the entry book of deeds “all deeds of conveyance absolute in their terms, and not intended as mortgages,” and in the entry book of mortgages he shall enter ‘ ‘ all mortgages and other deeds intended as securities,” etc. Section 4228 provides that different sets of books shall be provided by the register of deeds for the recording of deeds and mortgages, in one of which sets all deeds required by the preceding section to be entered in the entry book of deeds shall be recorded at full length, etc., and in the other all such instruments as are required to be entered in the entry book of mortgages shall in like manner be recorded. Section 4230 provides that the register of deeds shall keep a proper general index to each of the sets of books, in which he shall enter alphabetically the name of every party to each and every instrument recorded by him, with a reference to the book and page where the same is recorded. Section 4231 provides that every conveyance of real estate within this State which shall not be recorded as provided in this chapter shall be void as against every subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, etc., whose conveyance shall be first duly recorded. Sections 4236 and 4237 make the terms “purchaser” and “conveyance” embrace a “mortgagee” and a “ mortgage.” The language used seems to be plain that a paper intended as a mortgage should be recorded as a mortgage. If one is to get the benefit of the constructive notice growing out of the recording act, he must comply with its terms. See Thompson v. Mack, Har. (Mich.) 150. Wade on the Law of Notice states the rule as follows:
“Section 186: Instruments Should be Filed for Record in Their True Character. Another important requirement in regard to the registry of instruments, in order that they may operate, ns constructive notice, is that they should be registered in their true characters. Otherwise, they may fail to give notice, not only of the estate or interest they are intended to affect, but of that which they on their face purport to convey. As where an instrument is drawn and executed in the form of an absolute deed, which is intended -only to take effect as a mortgage, it should be registered as a mortgage, and not as an absolute deed. The reason of this is that, the instrument not, being an absolute conveyance of the property, its registry as such cannot charge any one with notice of its contents. It being in reality a mortgage, it should be recorded where the searcher for mortgages would be most likely to find it, — in the record of mortgages.
“Section 187: Deed with Defeasance is Mortgage. So, where there was a written defeasance to an absolute deed, and the deed was recorded among the absolute deeds, but the defeasance was unrecorded, the two instruments were treated as one, and that one a mortgage, which, not being properly recorded, through the negligence of the parties interested, was postponed to the lien of a subsequent judgment.
“ Section 188: Defeasance Must be Recorded as Mortgage. So, also, where a separate defeasance was recorded, but in the same book with the deed instead of in the record of mortgages, it was held not to amount to constructive notice to a creditor, for the reason that it would not lie in his way if examining the record for mortgages.”
An examination of the index of mortgages would have given no clue to this paper, which is now claimed to be a mortgage, and which must be so regarded if the Constantine Hydraulic Company is to have any standing in court. I do not think it can be said Mr. Gordon must be deemed to have constructive notice because of the record of the lease.
This decree should be modified as indicated, and affirmed. Complainant should have costs of this court.
The other Justices concurred. | [
18,
18,
23,
-26,
-14,
49,
72,
-17,
59,
37,
29,
4,
20,
0,
4,
-6,
6,
-10,
-68,
17,
7,
-2,
-28,
-18,
15,
14,
41,
-63,
-22,
38,
4,
10,
-38,
25,
4,
-18,
-3,
1,
16,
-53,
-25,
78,
-19,
-34,
27,
2,
17,
-17,
-4,
-44,
-5,
-17,
33,
-22,
-53,
-21,
-41,
-15,
-32,
7,
20,
-64,
-5,
37,
-41,
10,
3,
27,
47,
-28,
-10,
25,
-24,
-22,
7,
-14,
10,
7,
-40,
-66,
-9,
-21,
22,
-16,
-53,
31,
-24,
-1,
10,
6,
-2,
0,
-27,
53,
-23,
6,
37,
58,
-19,
23,
-30,
57,
-43,
24,
-7,
-36,
-25,
-7,
5,
11,
11,
-24,
22,
6,
-6,
4,
-43,
7,
60,
-25,
-19,
-1,
-34,
-24,
-6,
41,
-24,
-32,
-51,
56,
19,
-7,
-84,
34,
-20,
-29,
33,
42,
-22,
41,
16,
-17,
14,
-41,
-22,
45,
25,
-29,
41,
26,
-12,
51,
43,
21,
-9,
-21,
-3,
-14,
-7,
12,
57,
-19,
-25,
-17,
-74,
41,
-7,
-9,
-24,
-32,
12,
-4,
-29,
-25,
7,
-34,
12,
5,
-29,
-42,
-22,
-20,
-5,
-40,
37,
-11,
9,
-5,
1,
5,
28,
-16,
-35,
15,
-44,
-17,
-16,
-6,
-13,
-10,
-48,
-27,
-8,
11,
-16,
-18,
-5,
15,
-12,
-29,
15,
41,
-43,
6,
-39,
19,
25,
-23,
10,
3,
13,
20,
-21,
-7,
-77,
-57,
-26,
-1,
61,
4,
-33,
0,
-27,
3,
10,
11,
21,
20,
14,
27,
-38,
28,
-47,
-30,
-29,
-6,
-46,
-17,
23,
10,
-17,
-48,
-27,
27,
-21,
11,
-34,
-20,
-15,
-28,
2,
5,
-30,
-9,
41,
-43,
-18,
-48,
13,
22,
25,
0,
25,
15,
-15,
-14,
-13,
12,
-24,
-22,
5,
-33,
-49,
55,
17,
46,
35,
12,
-28,
12,
0,
-52,
0,
-4,
34,
-1,
-28,
-38,
16,
0,
-8,
-39,
-5,
-7,
26,
4,
-23,
-25,
-2,
8,
-25,
-11,
-10,
76,
35,
22,
-9,
-10,
-13,
15,
97,
13,
-7,
-6,
10,
40,
60,
7,
-25,
71,
-28,
-19,
0,
50,
-23,
30,
17,
-16,
-51,
-20,
15,
18,
8,
0,
7,
-25,
22,
-36,
-17,
2,
-78,
-4,
-51,
55,
0,
-24,
7,
19,
-37,
58,
53,
38,
-61,
-13,
17,
8,
-32,
-14,
57,
22,
33,
28,
-50,
25,
-12,
3,
-23,
-13,
-26,
-9,
6,
-17,
22,
-16,
62,
17,
17,
-34,
-22,
-3,
-23,
-13,
13,
34,
37,
-63,
27,
-25,
-76,
-28,
12,
3,
-16,
14,
8,
26,
22,
35,
4,
13,
-17,
-16,
-29,
-15,
-35,
42,
15,
-50,
64,
31,
-8,
7,
-10,
-25,
12,
-19,
51,
-16,
-17,
67,
-47,
44,
16,
3,
-20,
-15,
-30,
-66,
-54,
-1,
-8,
57,
5,
-33,
-18,
-7,
-33,
-6,
28,
-11,
-31,
36,
-12,
-15,
0,
25,
-2,
-18,
27,
-15,
43,
-31,
28,
-44,
20,
1,
37,
0,
4,
9,
-44,
5,
69,
31,
-16,
-7,
15,
-16,
-43,
-5,
-31,
1,
13,
26,
-19,
-59,
-30,
-12,
-1,
16,
10,
15,
18,
-40,
31,
20,
-8,
-10,
-11,
40,
0,
-16,
38,
5,
-38,
15,
17,
17,
39,
19,
-6,
-28,
29,
43,
-60,
59,
16,
0,
31,
23,
-14,
-16,
11,
-11,
-6,
9,
26,
19,
52,
53,
-4,
-5,
-7,
-28,
-14,
-2,
11,
21,
-15,
-8,
-44,
36,
-19,
25,
-26,
52,
-16,
-39,
-12,
-14,
-57,
-48,
-1,
56,
-11,
46,
-15,
-27,
0,
27,
-12,
-30,
22,
-44,
2,
-14,
19,
-50,
-49,
-12,
-73,
29,
38,
-8,
-23,
-36,
-17,
-20,
4,
18,
-30,
-57,
1,
-46,
21,
8,
-37,
36,
-19,
-19,
-6,
12,
22,
-16,
29,
-20,
43,
64,
14,
10,
-23,
-2,
-18,
-42,
-31,
2,
-14,
15,
-9,
25,
20,
3,
15,
18,
41,
42,
17,
-2,
39,
3,
19,
14,
-33,
18,
-9,
-7,
56,
-1,
31,
43,
-59,
-2,
-9,
-8,
-17,
-2,
27,
14,
29,
-27,
-19,
2,
-7,
-47,
2,
8,
7,
0,
29,
-13,
-31,
0,
24,
-6,
31,
-17,
25,
-34,
39,
-7,
64,
-17,
27,
60,
37,
-37,
24,
-1,
-28,
3,
22,
23,
40,
11,
37,
-46,
-35,
-3,
39,
0,
-11,
-17,
-47,
23,
53,
-39,
88,
11,
-13,
43,
-15,
-20,
-37,
21,
-9,
23,
19,
10,
39,
9,
52,
-42,
17,
52,
-17,
20,
-17,
21,
-23,
10,
15,
-54,
35,
-1,
6,
62,
26,
-12,
5,
-40,
15,
-41,
0,
-36,
28,
0,
-33,
50,
-38,
33,
-28,
-10,
-15,
21,
-5,
62,
7,
19,
-46,
-10,
12,
-31,
-46,
-16,
-5,
-22,
-30,
-16,
-3,
-3,
6,
-63,
-26,
8,
26,
8,
-32,
-46,
0,
-7,
-10,
-4,
37,
35,
46,
11,
2,
-34,
35,
-28,
-4,
29,
-30,
-31,
52,
3,
27,
3,
41,
-20,
-38,
-40,
24,
-16,
23,
-10,
36,
3,
51,
-17,
8,
28,
5,
-27,
-46,
53,
4,
16,
-7,
-22,
37,
24,
-22,
-19,
10,
-2,
-21,
7,
-12,
2,
-32,
-37,
2,
-22,
2,
6,
-5,
31,
-4,
-3,
-12,
52,
14,
-26,
4,
34,
-22,
55,
-31,
18,
31,
-44,
1,
30,
90,
-37,
32,
20,
16,
-25,
-23,
-78,
48,
-5,
-41,
-9,
-36,
23,
-50,
27,
-3,
-33,
43,
13,
2,
-2,
12,
41,
15,
-8,
8,
29,
5,
31,
18,
-65,
2,
53,
1,
1,
-8,
-23,
-77,
22,
-2,
-28,
-2,
0,
50,
13,
34,
17,
21,
27,
-22,
4,
39,
13,
-19,
23,
10,
-33,
-9,
-6,
10,
-3,
34,
-61,
-21,
-50,
-12,
-11,
24,
31,
-37,
-8,
-3,
-31,
-2,
6,
13,
13,
-35,
-40,
-33,
30,
33,
-41,
14,
18,
5,
1,
-43,
0,
-27,
29,
-15,
3,
-11,
22,
13,
-6,
-13,
30,
-30,
-65,
15,
-28,
-5,
29,
12,
-38,
30,
5,
-6,
0,
37,
-49,
-3,
23,
-50,
-4,
26,
39,
16,
10,
-37,
3,
-41,
-36,
1,
-32,
-1,
-13,
-17,
7,
-18,
-2,
-31,
-38,
-15,
4,
16,
1,
-30,
-1,
20,
-26,
33,
8,
31,
-52,
-13,
74,
13,
-5,
86,
-26,
-33,
-30,
44,
12,
28,
12,
-17,
-53,
-63,
42,
6,
-17,
11,
30,
12,
20,
64,
-11,
1,
12,
22,
-16,
-40,
20,
5,
62,
-4,
17,
-48,
6,
20,
40,
57,
-13,
-15,
44
] |
Grant, C. J.
Respondent was convicted of assault with intent to do great bodily harm less than the crime of murder. Several errors are assigned upon the rejection and admission of testimony. To state and discuss them would not establish precedents of any value. We have examined them, and find no error in the rulings.
Error is assigned upon the refusal to give the following request:
‘ ‘ The intent to do this great bodily harm is the gist of this crime, and in this case, although, if you should find that the prisoner intentionally fired the pistol at Williams, the presumption that he intended to do great bodily harm would be a very important circumstance, and very strong in making the proof necessary to convict, still this is not conclusive nor alone sufficient, but should be supplemented by other testimony to avoid the reasonable doubt, and, if there is no other testimony tending to show such intent, you should acquit.”
The court instructed the jury fully as to the specific intent which must be found before they could convict, and that in determining the intent they must consider all the circumstances of the case. Respondent testified that he was drunk and that the crowd were all drunk. He, however, seemed to have a very clear recollection of all that occurred, and did not give any testimony to show that he was so intoxicated as not to comprehend what he was doing. He was the only witness to testify to the intoxication of any one. His counsel argues that, by the refusal to give this request, respondent was deprived of his defense of intoxication to such a degree as not to be able to entertain the intent charged. If his counsel desired to make this defense, he should have called the attention of the court to it, and requested an instruction. Having failed to do this, the point cannot now be raised. People v. Baher, 92 Mich. 165 (31 Am. St. Rep. 575). We think the request was properly refused.
We have examined the other assignments, and find no error.
Conviction affirmed.
The other Justices concurred. | [
0,
-7,
9,
10,
-52,
-54,
3,
36,
-32,
19,
14,
-17,
5,
2,
47,
-46,
-5,
25,
7,
-16,
39,
-38,
-66,
24,
-23,
-48,
8,
52,
-13,
22,
55,
21,
-11,
-50,
12,
-33,
39,
-8,
38,
26,
10,
19,
15,
0,
-43,
-24,
-35,
-24,
-16,
-7,
52,
-12,
26,
-9,
-41,
-41,
22,
-31,
-5,
-20,
10,
1,
-45,
-15,
-64,
-55,
-9,
10,
-75,
20,
-44,
4,
-25,
-8,
1,
-21,
-8,
14,
2,
-31,
-1,
40,
32,
50,
0,
15,
42,
-27,
35,
-37,
-8,
-30,
-71,
-29,
12,
-23,
43,
14,
-3,
13,
2,
11,
-36,
5,
-11,
-1,
-3,
10,
15,
-43,
41,
44,
18,
7,
-59,
-36,
-6,
15,
-53,
-11,
-1,
29,
46,
3,
-2,
-47,
26,
-76,
-12,
-10,
31,
24,
-21,
-4,
-43,
-8,
-26,
31,
-14,
6,
-37,
32,
31,
-9,
18,
3,
-31,
48,
9,
13,
-12,
7,
-19,
-2,
-17,
1,
-9,
-38,
2,
0,
16,
10,
-12,
-18,
17,
-5,
-36,
16,
-9,
-29,
19,
-15,
38,
42,
29,
28,
-21,
-9,
10,
20,
0,
45,
22,
24,
19,
8,
-11,
36,
13,
-36,
-65,
39,
-23,
2,
58,
53,
-25,
31,
53,
-42,
25,
-13,
3,
-8,
-13,
-22,
-51,
-9,
37,
1,
-6,
36,
-18,
-23,
15,
-42,
-25,
-36,
-28,
8,
-46,
-1,
-9,
7,
3,
-46,
-9,
14,
-93,
18,
-2,
-29,
-25,
25,
29,
-28,
56,
-21,
1,
-8,
-4,
10,
-1,
-9,
-20,
-3,
17,
-1,
33,
-22,
3,
17,
20,
20,
-41,
-38,
47,
-32,
-41,
2,
-26,
43,
-5,
47,
-46,
25,
-32,
-7,
-5,
22,
4,
-21,
-12,
36,
7,
-21,
-9,
4,
-5,
18,
25,
28,
-1,
43,
-29,
-26,
-41,
17,
-13,
-6,
71,
-47,
3,
-6,
77,
5,
17,
18,
-42,
-40,
56,
0,
23,
-14,
7,
-1,
50,
4,
-38,
-12,
3,
18,
-30,
30,
37,
-9,
0,
6,
39,
-60,
-64,
-50,
-7,
-74,
-38,
-21,
-26,
-43,
-14,
9,
-55,
28,
11,
66,
-27,
9,
-4,
8,
-3,
11,
44,
-24,
-17,
-11,
0,
41,
6,
-1,
-26,
-29,
-30,
-27,
12,
-8,
0,
-2,
-18,
-6,
50,
-9,
23,
-17,
7,
-6,
50,
-4,
-14,
-11,
29,
22,
-3,
-47,
-3,
-53,
-6,
42,
59,
-6,
-36,
7,
-24,
42,
30,
-45,
12,
1,
-16,
24,
-9,
20,
0,
-22,
-5,
-65,
-48,
-44,
-4,
15,
50,
-24,
-1,
-17,
60,
-11,
-47,
-45,
-28,
14,
44,
-41,
0,
37,
36,
31,
0,
-29,
-18,
8,
27,
-14,
27,
-32,
42,
-9,
-1,
-29,
-1,
27,
-13,
-30,
7,
-25,
58,
-18,
-7,
0,
-26,
-14,
16,
-8,
-48,
-40,
-21,
41,
17,
-19,
-18,
30,
-27,
-7,
-6,
-26,
13,
0,
24,
69,
24,
7,
42,
0,
10,
-17,
-33,
-26,
65,
0,
-48,
-79,
18,
-30,
51,
-37,
-18,
30,
-16,
28,
33,
25,
36,
5,
25,
8,
0,
-44,
-21,
9,
15,
-57,
-7,
-30,
13,
-6,
31,
8,
-50,
-3,
2,
35,
-54,
-16,
-14,
18,
-53,
16,
8,
5,
45,
-24,
17,
35,
-59,
26,
-53,
6,
-19,
-5,
0,
-45,
-32,
-16,
0,
-1,
34,
-13,
-37,
-32,
11,
-25,
-59,
-25,
105,
-27,
20,
-54,
-7,
12,
-44,
-60,
31,
-20,
7,
-21,
33,
8,
19,
23,
-26,
21,
28,
52,
-23,
22,
46,
-5,
-3,
0,
33,
-11,
-30,
-15,
-16,
10,
18,
8,
6,
6,
31,
20,
43,
-33,
47,
45,
-34,
-16,
-30,
1,
-18,
27,
-10,
35,
13,
-2,
13,
36,
-24,
-36,
-7,
10,
-40,
0,
-50,
53,
-4,
4,
-20,
-36,
37,
-22,
-18,
44,
-3,
6,
32,
52,
64,
15,
-6,
-43,
7,
-38,
21,
5,
44,
9,
7,
7,
-5,
-29,
-24,
16,
-34,
7,
4,
-8,
-34,
-9,
-4,
-24,
29,
-68,
-81,
19,
-24,
-14,
-7,
65,
-4,
10,
-1,
-17,
48,
2,
0,
2,
68,
60,
-34,
71,
-13,
-38,
6,
-17,
0,
-29,
31,
-16,
-45,
39,
3,
3,
2,
51,
-23,
-26,
9,
72,
27,
-30,
36,
11,
-27,
23,
-2,
-2,
0,
23,
37,
15,
9,
6,
-21,
-34,
58,
-19,
29,
-6,
-19,
18,
-4,
41,
17,
22,
34,
38,
11,
2,
8,
12,
-54,
-14,
33,
-22,
-16,
-4,
19,
-16,
23,
-29,
-10,
-27,
8,
68,
-25,
7,
8,
-8,
-40,
-41,
-26,
43,
-42,
21,
51,
26,
32,
24,
-2,
11,
50,
-23,
11,
-82,
9,
20,
1,
-5,
-4,
15,
34,
-23,
-18,
4,
-36,
-30,
16,
-1,
17,
-27,
6,
44,
41,
-30,
12,
-9,
-18,
68,
11,
-14,
-44,
-27,
18,
29,
-39,
-26,
-23,
-10,
-34,
1,
29,
34,
2,
-36,
50,
-3,
-96,
41,
15,
-31,
40,
17,
-25,
-38,
-34,
18,
0,
-6,
-38,
-18,
-39,
-11,
22,
11,
-44,
53,
53,
3,
35,
11,
1,
7,
-10,
-32,
17,
-24,
0,
21,
21,
21,
0,
-9,
31,
13,
-24,
16,
-26,
-59,
11,
-26,
27,
-3,
36,
61,
12,
-5,
15,
-3,
5,
-35,
-25,
-48,
-28,
28,
24,
59,
-2,
-6,
8,
-11,
-11,
2,
34,
13,
31,
22,
49,
6,
-12,
1,
29,
47,
20,
0,
2,
-16,
0,
25,
-7,
28,
26,
35,
-6,
1,
-16,
-29,
-7,
40,
27,
-29,
0,
-37,
-9,
-1,
13,
58,
-62,
42,
-43,
7,
-1,
45,
47,
0,
14,
15,
13,
-33,
-30,
-60,
-9,
33,
53,
58,
-15,
42,
-26,
-12,
-21,
21,
-5,
-21,
21,
1,
-20,
20,
31,
-14,
39,
19,
-9,
35,
-33,
-14,
16,
16,
-3,
26,
-46,
-32,
75,
-28,
19,
37,
23,
22,
4,
-22,
-18,
10,
-36,
-12,
-6,
4,
-20,
-43,
-3,
39,
32,
-35,
-26,
-30,
-6,
13,
-53,
29,
-22,
-20,
-20,
-40,
-61,
-11,
-16,
-8,
0,
2,
12,
-36,
-27,
18,
-81,
30,
20,
61,
-42,
35,
22,
42,
15,
23,
-32,
39,
-21,
-42,
3,
33,
19,
13,
6,
-19,
-27,
1,
4,
-21,
-26,
-33,
-7,
25,
13,
5,
-34,
-17,
-47,
40,
-23,
56,
-23,
30,
-17,
11,
-3,
-15,
-38,
1,
-31,
45,
0,
-42,
17,
67,
-41,
-57,
0,
-2,
25,
-10,
-45,
17,
-30,
3,
-42,
-2,
-21,
32,
16,
24
] |
Grant, C. J.
(after stating the facts). The city of Detroit has a police and detective department, whose duty it is to investigate alleged crimes, and to see that proper criminal proceedings are instituted. A policeman was on his beat in the street opposite the plaintiff’s house when the fire broke out, and was early upon the scene. He re-reported to his chief, who detailed two police officer^ to investigate the circumstances of. the fire. They did so^ and reported the facts and circumstances to Justice Whelan, who was an attorney of experience and good standing. The respondent made no investigation, but signed the complaint upon the advice of Mr. Whelan, and upon the information and belief that he was the proper person to make the complaint.
The law does not favor actions for malicious prosecution. It is essential for the protection of the public that alleged crimes be fully investigated. It must sometimes result that innocent persons will be arrested. Citizens must be left free to, in good faith, state to the proper officers the grounds for their belief that a crime has been committed, and that a certain person is the offender. It is true, they must have reasonable grounds for their belief, and act in good faith. This is all that the law requires.
“ This rule is founded upon grounds of public policy, in order to encourage the exposure of crime; and when'the acts of the citizen in making such exposure are challenged as not being within the reason of the rule, the court, as in every other case involving considerations of public policy, must itself determine the question as a matter of law, and not leave it to the arbitrament of a jury. ” Ball v. Rawles, 93 Cal. 222, 228 (27 Am. St. Rep. 174).
“ This action is strictly guarded. * * * It is never encouraged, except in plain cases. Were it otherwise, ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law, and to discharge his duty to society, with the prospect of an annoying suit staring him in the face. ” Ventress v. Rosser, 73 Ga. 534, 541.
See, also, the language of the supreme court of Illinois in Harpham v. Whitney, 77 Ill. 32, 39.
Three officers of the city complied with their duty to the public, and made an investigation. The facts they reported were undisputed, and showed the existence of probable cause. It is unnecessary to give them in detail. Where the facts are undisputed, the court must determine the question of probable cause.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
-11,
10,
2,
-35,
23,
35,
-39,
-10,
-17,
25,
37,
1,
13,
15,
6,
-25,
8,
37,
29,
-60,
13,
0,
-3,
-41,
-44,
10,
42,
-15,
-32,
-13,
-49,
-25,
7,
-14,
-6,
-25,
26,
-23,
17,
54,
-2,
2,
28,
-57,
-3,
4,
-16,
-11,
24,
-49,
3,
74,
28,
16,
-20,
-39,
-4,
83,
19,
-23,
-17,
-14,
18,
-6,
-34,
-8,
-29,
18,
-2,
-6,
25,
28,
-29,
1,
-3,
43,
27,
-39,
-18,
21,
-13,
61,
40,
15,
36,
-45,
19,
-13,
-45,
-12,
43,
22,
1,
-10,
5,
-44,
55,
-3,
-20,
35,
18,
29,
-24,
-4,
-36,
27,
-5,
-41,
34,
-38,
-9,
42,
7,
-51,
-23,
1,
51,
6,
0,
-14,
51,
-25,
7,
-24,
-42,
36,
3,
-67,
14,
-8,
8,
25,
40,
-2,
6,
-23,
-28,
17,
40,
84,
-16,
-27,
-12,
-39,
-23,
-24,
-33,
31,
-6,
8,
7,
-11,
32,
7,
-71,
-47,
10,
-15,
45,
45,
-14,
3,
-66,
14,
-20,
-9,
-43,
10,
-1,
20,
4,
-31,
2,
8,
36,
-42,
-65,
-26,
-31,
0,
17,
0,
-1,
4,
30,
-15,
-21,
-34,
0,
-14,
45,
-45,
-27,
18,
3,
28,
20,
33,
39,
-105,
35,
-5,
-55,
-45,
-24,
-1,
-37,
-4,
49,
16,
-19,
61,
14,
-21,
-6,
-19,
-3,
-23,
-21,
-39,
-7,
-43,
3,
7,
7,
-39,
-36,
28,
-13,
7,
34,
33,
-23,
-15,
25,
-31,
6,
33,
32,
4,
25,
42,
-5,
1,
8,
-45,
-9,
-53,
7,
28,
12,
1,
78,
-31,
-46,
-25,
7,
5,
50,
42,
5,
39,
7,
16,
16,
-19,
-32,
30,
-15,
-13,
-31,
-16,
-37,
-13,
-47,
-9,
11,
-18,
-25,
12,
-85,
8,
-19,
53,
25,
28,
-24,
-9,
0,
-51,
10,
-31,
-18,
5,
36,
47,
51,
11,
6,
-20,
52,
67,
-19,
-5,
-12,
-43,
-9,
36,
-27,
26,
32,
56,
-6,
79,
29,
-2,
7,
-8,
41,
15,
0,
-2,
-20,
-15,
-41,
-51,
22,
-36,
-8,
-32,
37,
18,
15,
32,
-23,
69,
49,
33,
-36,
-45,
-5,
-18,
17,
-46,
7,
3,
-29,
8,
-94,
-10,
13,
-4,
-11,
-8,
6,
35,
-13,
14,
18,
-33,
40,
47,
0,
37,
-16,
-34,
8,
-73,
-30,
46,
-36,
-51,
-30,
26,
-11,
-16,
64,
-42,
-75,
43,
-31,
-63,
-23,
15,
-22,
-35,
3,
36,
-26,
-8,
-24,
5,
8,
19,
-39,
-8,
47,
8,
31,
34,
-12,
26,
15,
0,
-75,
5,
-16,
14,
37,
11,
-27,
33,
41,
0,
-31,
-21,
18,
-10,
16,
-21,
3,
-31,
34,
-23,
26,
2,
-6,
43,
27,
-24,
35,
-87,
39,
-45,
-9,
-17,
-67,
-50,
-60,
-31,
-45,
5,
-10,
54,
-30,
-22,
-16,
14,
-20,
24,
29,
32,
56,
53,
-40,
72,
40,
28,
8,
70,
-19,
-7,
-24,
0,
-52,
27,
-20,
1,
25,
8,
22,
-31,
-37,
-43,
-23,
-33,
-47,
27,
13,
6,
18,
23,
34,
-30,
-85,
-9,
28,
-5,
46,
24,
6,
1,
-52,
12,
8,
34,
40,
17,
-18,
-24,
41,
5,
-67,
14,
6,
-10,
14,
33,
46,
32,
13,
25,
-33,
15,
2,
30,
12,
25,
20,
-14,
-3,
-46,
-31,
-7,
0,
-30,
0,
-39,
-54,
-55,
37,
-29,
27,
-16,
14,
24,
14,
20,
51,
-9,
26,
-5,
25,
41,
-16,
2,
12,
-38,
50,
17,
3,
-5,
-26,
-17,
-2,
0,
7,
-12,
16,
27,
-35,
-25,
84,
33,
-8,
9,
41,
-7,
65,
-4,
43,
43,
-11,
-17,
-9,
-24,
29,
25,
-4,
-11,
-17,
-53,
-31,
29,
48,
-4,
-2,
-52,
-16,
-37,
-2,
47,
-9,
-5,
-24,
5,
-30,
-43,
18,
58,
22,
-21,
-9,
-3,
25,
13,
25,
-37,
-36,
-44,
39,
3,
14,
-40,
77,
69,
-56,
1,
15,
53,
-12,
-86,
-4,
-45,
0,
-31,
51,
3,
-14,
-25,
-33,
1,
-33,
23,
27,
12,
23,
35,
0,
44,
-37,
40,
1,
-16,
15,
48,
-39,
71,
-11,
-25,
-27,
-33,
3,
-46,
33,
-6,
-48,
25,
15,
-54,
17,
-17,
-35,
22,
-37,
11,
-18,
-3,
3,
-12,
6,
25,
-16,
18,
-43,
28,
18,
-22,
-34,
-6,
12,
-24,
0,
26,
42,
8,
-22,
5,
-16,
24,
-8,
-18,
53,
-3,
10,
-9,
35,
26,
77,
-58,
-14,
-69,
-30,
-39,
-46,
-8,
26,
-22,
-33,
-22,
20,
27,
-21,
30,
-36,
-26,
-57,
7,
7,
22,
-33,
-34,
35,
-14,
30,
-42,
-9,
47,
-17,
-24,
42,
-56,
47,
-8,
5,
12,
-35,
33,
8,
-36,
-15,
48,
51,
-26,
12,
-55,
69,
-21,
47,
0,
15,
-1,
38,
-18,
-5,
38,
8,
21,
-84,
-1,
26,
6,
30,
-31,
-24,
4,
23,
50,
18,
-23,
0,
-47,
36,
-17,
-1,
50,
5,
-56,
56,
-2,
20,
-11,
12,
30,
-27,
1,
-24,
-38,
-7,
-9,
24,
-14,
-23,
-6,
27,
21,
0,
-33,
25,
8,
28,
-22,
25,
-72,
-2,
4,
-9,
63,
32,
-8,
19,
-7,
-32,
-12,
-31,
12,
27,
29,
32,
-5,
-5,
25,
21,
16,
16,
-11,
16,
-90,
5,
-30,
-44,
-21,
-16,
55,
-27,
14,
-14,
-28,
48,
28,
24,
7,
-5,
29,
-12,
70,
-59,
31,
-34,
82,
-24,
54,
12,
26,
2,
-2,
-18,
6,
47,
-34,
-15,
23,
-17,
-49,
26,
15,
-10,
-35,
11,
-6,
32,
42,
-23,
20,
-1,
18,
-22,
-16,
5,
-36,
50,
-25,
13,
-35,
17,
54,
-25,
-68,
-31,
47,
44,
0,
-21,
49,
-34,
-11,
-59,
13,
54,
-25,
-22,
-49,
-7,
-4,
26,
9,
0,
-9,
-56,
51,
-8,
-43,
26,
-9,
-6,
59,
-64,
-44,
41,
1,
-13,
23,
17,
7,
-3,
-47,
11,
20,
-10,
39,
-56,
-20,
-14,
11,
17,
-42,
60,
-48,
-42,
-57,
-12,
-11,
-36,
7,
4,
47,
-35,
-42,
18,
5,
6,
-5,
3,
8,
4,
-10,
-27,
14,
-11,
40,
-24,
42,
11,
-4,
-11,
23,
0,
-16,
-2,
0,
26,
9,
-9,
-8,
6,
-17,
-57,
-37,
-27,
-32,
-61,
-11,
7,
11,
-7,
-23,
26,
-27,
-27,
-41,
-11,
-41,
-54,
-1,
-47,
-27,
-40,
0,
3,
0,
36,
79,
-18,
7,
31,
-21,
-12,
6,
-10,
-6,
-13,
17,
40,
48,
-90,
0,
9,
15,
-78,
-19,
33,
48,
-32,
84
] |
Montgomery, J.
March 1, 1892, the Detroit Motor Company issued 100 coupon bonds, of $1,000 each, payable March 1, 1897, with interest at 6 per cent., payable semi-annually. Each bond states upon its face that it—
“ Is secured by first mortgage to the Union Trust Company of Detroit, Michigan, as trustee, bearing date the 1st day of March, 1892, and conveying to said trustee the real estate, franchises, and plant of this company, located at Detroit, Wayne county, Michigan. This bond is further secured by an instrument in writing of even date herewith, duly executed by J. Huff Jones, William C. Maybury, F. A. Blades, Waring H. Ellis, T. B. Rayl, Charles W. Casgrain, and Ellwood T. Hance, all of Detroit, Michigan, aforesaid, to said trustee, guaranteeing the payment thereof as herein provided.”
* The mortgage bears the same date as the bonds, is in the usual form, recites the bonds, and contains the following provisions:
“And it is hereby expressly agreed by and between said parties that should any default be made in the payment of said interest, or any part thereof (or any installment of principal, or any part thereof), on any day whereon the same is made payable as above expressed, and should the same remain unpaid and in arrears for the space of 30 days, then and from thenceforth — that is to say, after the lapse of the said 30 days — so much of the aforesaid principal sum of $100,000 as remains unpaid, with all the arrearage of interest thereon, shall, at the option of the said party of the second part, its successors or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired; anything hereinbefore or in said bonds contained to the contrary thereof ■in anywise notwithstanding. * * *
‘ ‘ This mortgage and the bonds accompanying the same, and to which it is collateral, is guaranteed as to payment by a certain instrument in writing, bearing date March 1, 1892, inuring to the benefit of the said second party, and is signed by the persons comprising the board of directors of the said first party.”
The guaranty, which bears the same date as the bonds and mortgage, recites the issuing of the bonds, the execution of a first mortgage to the trust company to secure them, and proceeds as follows:
“Now, therefore, for the purpose of further securing the payment of said bonds, and of each of them, and of the interest due thereon, in accordance with the terms and conditions of said bonds, the parties of the first part hereby agree to and with the said party of the second part, for the benefit of those who may become holders of said bonds, and to and with each of the holders of said bonds, that the said bonds, and each of them, and the interest thereon, shall be paid in accordance with the terms thereof; and they hereby guarantee the prompt payment of the same, both principal and interest, at the time and times specified in the bonds, and in each of them.”
Interest being in default for more) than 30 days, the Unioil Trust Company, at the request of the bond-holders, declared the whole amount of said bonds due, and filed its bill of foreclosure upon May 28, 1896. The guarantors were made parties, and a personal decree was sought against them. Proofs were taken, and a decree entered against the Detroit Motor Company for the full amount of the principal and interest. The decree also held the guarantors personally liable for the amount of interest which was past due at. the time the bill was filed; but the court refused to render a decree against the guarantors for the amount of the principal, upon the ground that the guarantors’ liability should be strictly construed, and not extended beyond the terms of their agreement; that their agreement was to pay the bonds according to their terms;. and that as the bonds upon their face were not payable-until March 1, 1897, there was no liability except for past-due interest. From this finding, complainant appeals. Defendants also appeal.
Counsel for complainant state their- contention as follows:
“Only one question is raised by this appeal: Were the guarantors bound by the, provision of the mortgage that, in case of default in the payment of interest, the 'trustee might declare the principal due forthwith ? ”
Defendants contend that, under the terms of the guaranty, the individual defendants were only liable for the payment of the principal of the bonded debt at its maturity, and that by reason of the complainant’s declaring the ■whole amount due, and proceeding against them in this suit nine months before the date of maturity, their contract was thereby varied, and they were, released from liability; and that, if the guarantors be held liable for the interest which had matured on the bonds, tti^ proceeds of the sale of the property under the decree should be first applied to the satisfaction of their liability, inasmuch as the unpaid interest was the portion of' the debt first maturing.
The complainant invokes the,rule that where several instruments are made at the same time, between piarties, they should be construed together. This rule is too well established to require citation of authorities; but does it necessarily determine the question here involved? We think not. The contract of a surety or guarantor is not to be extended beyond its express terms. Johnston v. Township of Kimball, 39 Mich. 187 (33 Am. Rep. 372); Bishop v. Freeman, 42 Mich. 533; Black’s Appeal, 83 Mich. 513; Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112. The undertaking of the guarantors in this case was that the bonds, and each of them, and the interest thereon, should be paid in accordance with the terms thereof, and in terms they guaranteed the payment thereof “at the time and times specified in the bonds, and in each of them.” It would be an enlargement of this undertaking to treat it as an engagement to guarantee the payment of these bonds at any other or different times. At the time the bill was filed in this case, the guarantors were not liable to pay the principal of these bonds.
Assuming that the liability was limited to the interest, should the decree have provided that, the proceeds of the foreclosure sale should be first applied to the payment of such interest? We are at a loss to understand upon what equity such a direction should be made. It is suggested that, as a general rule, the application should be made to the debt or portion of the debt first maturing. This is the general rule, but it should not be invoked to work injustice. In this case the complainant supposed it had a double security. It could, as to the interest money due, have pursued either the principal or guarantors. An action might have been maintained on the guaranty, or the mortgage have been foreclosed at law.. The guarantors could not have been subrogated to the security without paying the full amount for which the security was held. Wilcox v. Fairhaven Bank, 7 Allen, 270. Does the fact that the complainant has sought its remedy in equity entitle the guarantors to greater rights, or entitle them to be relieved from their undertaking? We think not. See Mathews v. Switzler, 46 Mo. 301; Wood v. Callaghan, 61 Mich. 402 (1 Am. St. Rep. 597); Noble v. Murphy, 91 Mich. 653 (30 Am. St. Rep. 507).
Did the action of complainant in declaring the whole amount of the bonds and mortgage due release the defendant guarantors from the payment of the matured interest ? As before stated, to the extent of the matured interest, the liability of these guarantors had become fixed before the bill was filed or any steps taken to declare the whole amount due. The defendants’ counsel invokes the well-understood rule that any variation of a contract will discharge the surety or guarantor. But how has this contract been varied ? An attempt has been made to declare the bonds due before the date fixed in the bonds for their maturity. This, as to the guarantors, was ineffectual. As to the motor company, it was effectual, as the action taken was within the express terms of the undertaking in the mortgage. Not only is this true, but the guarantors had notice of this right, and contracted with reference to it. While we hold that this obligation cannot be enlarged beyond its terms, we do not hold that an indebtedness may not mature as against the principal at one date, and a guarantor be liable on such indebtedness only in case the default continues to a later date, if the parties see fit to so contract. The election authorized by the terms of the mortgage, which were known to the guarantors, did not operate to discharge them from liability on the matured obligation.
Did this action of complainant operate to discharge the guarantors from their liability to pay the bonds at maturity ? The undertaking of the principal and that of the guarantors was distinct; The election to proceed to declare the whole amount due as between the complainant and the motor company could not have the effect to change the contract of the guarantors, nor should it be held to release the contract. The contract of the guarantors still remains in force, notwithstanding the unavailing attempt to declare the whole amount due as against them. The contract expressly provides for such election, and the election, when made, did not extend the time or shorten the time for payment, as expressed in the terms of the contract between the motor company and the mortgagee. Nor was the ineffectual attempt to declare the whole amount due as against the guarantors of great effect. The force of this action was not different than that of a premature suit, which it cannot be maintained would discharge a debtor, be he principal or guarantor.
It is contended that relief cannot be had in this suit against the guarantors, but we think the statute (2 How. Stat. § 6704) authorizes the joining of guarantors of payment with the principal debtor in foreclosure proceedings. Johnson v. Shepard, 35 Mich. 115; Michigan State Bank of Eaton Rapids v. Trowbridge, 92 Mich. 221.
The principal of the bonds having matured. since the suit was instituted, the decree should pass against the guarantors for the full amount due. Johnson v. Van Velsor, 43 Mich. 215; Jehle v. Brooks, 112 Mich. 131; Hanford v. Robertson, 47 Mich. 100.
The decree below will be modified as indicated in this opinion. The complainant will recover costs of both courts.
The other Justices concurred. | [
15,
62,
34,
-60,
11,
59,
50,
-28,
60,
-56,
-25,
-21,
-16,
33,
-12,
90,
35,
-35,
-40,
15,
-25,
-45,
-78,
-43,
-9,
77,
43,
-55,
32,
1,
30,
-2,
-16,
40,
-34,
-68,
-23,
-65,
36,
-43,
0,
39,
-14,
29,
2,
-7,
24,
-85,
42,
-43,
-20,
0,
9,
43,
3,
24,
-33,
12,
-69,
28,
21,
-58,
53,
-19,
-69,
11,
53,
59,
44,
25,
40,
-15,
23,
33,
-28,
-17,
30,
20,
-71,
-72,
10,
-63,
5,
-16,
-34,
-10,
-43,
8,
-70,
-3,
-16,
-32,
4,
20,
26,
-69,
-18,
-3,
-22,
41,
-30,
-11,
-13,
41,
-9,
-19,
54,
0,
7,
74,
24,
6,
34,
11,
-51,
27,
-35,
12,
49,
0,
-46,
-86,
-25,
3,
-9,
22,
-17,
-21,
1,
16,
20,
31,
27,
34,
-49,
-29,
-12,
10,
-5,
63,
27,
31,
-5,
-15,
-29,
1,
46,
-34,
44,
5,
1,
50,
22,
47,
-26,
-8,
-18,
27,
8,
-39,
28,
-47,
25,
48,
-74,
16,
-78,
22,
-20,
35,
-6,
7,
0,
-58,
-35,
-6,
0,
10,
11,
13,
-18,
-10,
-18,
9,
37,
-51,
-14,
1,
14,
20,
12,
19,
-23,
45,
-50,
8,
-6,
-45,
-39,
50,
32,
-55,
-12,
-25,
-35,
-14,
17,
18,
-28,
4,
-31,
5,
54,
49,
-5,
8,
-23,
1,
74,
0,
72,
-3,
-62,
63,
-12,
-36,
4,
-2,
-37,
5,
17,
22,
18,
8,
5,
35,
-74,
-22,
-8,
45,
0,
-44,
-8,
-6,
-6,
-23,
-8,
-30,
66,
28,
-15,
26,
9,
-24,
-52,
8,
-65,
-1,
44,
-13,
-10,
55,
-24,
-13,
47,
-19,
33,
5,
19,
36,
-36,
-77,
-36,
-27,
-32,
-11,
23,
-5,
-70,
-11,
-25,
-25,
-50,
16,
53,
-12,
-2,
-15,
-78,
-17,
-10,
34,
46,
-17,
-4,
1,
-6,
16,
77,
20,
-30,
57,
-36,
20,
30,
4,
-32,
11,
-21,
14,
-25,
-5,
10,
37,
47,
-1,
65,
72,
59,
20,
35,
82,
-29,
36,
33,
-15,
-17,
-10,
-90,
24,
-18,
-30,
12,
24,
-63,
-20,
43,
8,
18,
-38,
46,
1,
80,
22,
-8,
-8,
12,
-59,
-24,
6,
-28,
-2,
-11,
-18,
-37,
38,
69,
57,
5,
26,
18,
-16,
28,
41,
14,
-55,
-52,
-29,
31,
47,
30,
48,
-57,
31,
13,
35,
-9,
-9,
-85,
55,
10,
60,
29,
-8,
53,
24,
0,
-35,
-18,
6,
-61,
34,
-44,
14,
-1,
-69,
16,
-40,
-75,
-45,
-16,
58,
-26,
-22,
29,
29,
57,
-5,
2,
-27,
-22,
19,
-1,
-38,
-38,
7,
40,
-33,
-46,
-24,
18,
6,
-62,
-7,
-11,
-22,
52,
48,
-47,
28,
26,
-9,
1,
26,
2,
-66,
-36,
-71,
22,
-54,
41,
23,
36,
56,
39,
-28,
-14,
-22,
41,
25,
58,
-2,
-52,
39,
-45,
31,
20,
28,
-19,
-4,
0,
-89,
35,
18,
-73,
30,
9,
-14,
-33,
30,
-29,
-7,
20,
-41,
-73,
-49,
4,
-9,
33,
-7,
-58,
-25,
23,
25,
-42,
-53,
-23,
-51,
-33,
18,
32,
-33,
-27,
27,
33,
4,
-53,
12,
33,
4,
47,
-20,
-12,
36,
-53,
69,
25,
-85,
-7,
-31,
6,
-21,
-17,
41,
69,
-3,
-38,
-9,
53,
36,
-27,
65,
-43,
26,
9,
32,
15,
28,
-7,
-50,
-51,
-16,
48,
42,
-12,
-20,
2,
62,
-56,
-22,
25,
-19,
-46,
21,
-7,
31,
-34,
-16,
-15,
-9,
-66,
-24,
-11,
-25,
26,
40,
37,
15,
-50,
9,
-55,
-3,
36,
-35,
-15,
-45,
18,
-11,
-28,
-41,
-44,
38,
16,
34,
-40,
-36,
-8,
-57,
-27,
-38,
-12,
13,
-17,
-42,
-5,
36,
-28,
-21,
-68,
25,
-2,
-12,
-11,
56,
11,
15,
20,
118,
7,
4,
12,
32,
-48,
26,
-39,
-65,
-45,
-1,
18,
24,
-24,
-30,
57,
-18,
0,
5,
-4,
32,
1,
32,
24,
13,
1,
6,
13,
40,
32,
-33,
-13,
88,
-12,
-4,
-25,
18,
-15,
2,
41,
30,
19,
-58,
-21,
6,
18,
-38,
8,
16,
-90,
4,
40,
-20,
-43,
-17,
23,
-1,
5,
31,
56,
8,
29,
1,
3,
7,
35,
9,
21,
-26,
-51,
36,
-5,
-32,
45,
-24,
1,
-1,
69,
55,
-21,
59,
52,
4,
-33,
23,
-60,
49,
18,
-49,
18,
-29,
-19,
3,
7,
7,
-29,
-33,
-7,
-3,
26,
44,
12,
-35,
42,
0,
-21,
32,
-41,
4,
-48,
18,
-8,
-29,
61,
-19,
22,
-12,
-13,
45,
-13,
41,
2,
-76,
-15,
-35,
0,
34,
-40,
2,
-66,
-27,
-73,
33,
-16,
-49,
-31,
1,
1,
46,
31,
-9,
-51,
-86,
-21,
46,
7,
37,
-34,
-33,
-100,
40,
17,
0,
-7,
-17,
21,
6,
37,
-46,
-14,
4,
0,
24,
-76,
10,
18,
37,
-1,
28,
-25,
60,
2,
-56,
-60,
14,
-10,
23,
49,
-42,
41,
-20,
25,
-23,
23,
-10,
39,
0,
27,
-33,
44,
11,
23,
5,
-11,
-11,
12,
0,
-50,
-11,
80,
-5,
19,
-39,
-35,
-26,
-36,
-13,
16,
-68,
78,
12,
34,
-16,
-23,
-5,
18,
6,
13,
30,
-42,
30,
1,
-26,
-60,
34,
34,
-22,
-35,
16,
-36,
1,
-27,
20,
40,
10,
23,
-31,
9,
21,
14,
21,
55,
-20,
-37,
-32,
-9,
16,
-46,
18,
-35,
54,
-4,
2,
-37,
3,
-43,
19,
-2,
-4,
16,
12,
-51,
40,
39,
-3,
-18,
44,
29,
-40,
-12,
-22,
-54,
-10,
-3,
-5,
-1,
21,
-5,
40,
41,
0,
32,
15,
4,
-18,
82,
-4,
-18,
-21,
48,
-5,
-6,
27,
-17,
-75,
-54,
-5,
19,
-46,
45,
-33,
7,
-4,
-9,
-14,
-92,
-20,
27,
31,
45,
48,
27,
-23,
17,
3,
16,
17,
-34,
6,
-25,
-12,
23,
6,
-11,
-29,
-18,
-52,
22,
-27,
-21,
33,
14,
34,
25,
42,
-49,
29,
25,
-10,
11,
-11,
34,
-50,
35,
6,
-45,
-30,
-36,
48,
49,
-3,
31,
-14,
-29,
21,
49,
66,
-3,
-10,
0,
-11,
29,
37,
-11,
22,
31,
-57,
35,
3,
-10,
-54,
0,
0,
8,
29,
-54,
1,
-24,
19,
0,
-11,
-27,
-46,
-16,
-8,
22,
64,
39,
-34,
57,
-33,
-21,
-11,
-17,
-26,
-24,
-7,
-51,
-42,
77,
57,
17,
6,
19,
-3,
-2,
22,
-10,
-43,
19,
-8,
12,
-11,
-15,
-4,
-17,
20,
28,
63,
8,
6,
75,
-34,
71,
-14,
-50,
49
] |
Hooker, J.
The parties to this action were interested in a corporation known as the International Sulphite Fibre & Paper Company, and the action was brought by the plaintiff to recover the purchase-price of 800 shares of the stock of that company, which he testified that he tendered to the defendant, according to the terms of the following writing, viz. (written on letterhead of International Sulphite Fibre & Paper Company):
“Detroit, Mich., June 14, 1890.
“Charles L. Ortmann.
“Dear 8ir: We, the undersigned, hereby agree to purchase from you eight hundred (800) shares of Internat. Sulphite Fibre & Paper Co. stock, par value $20,000, now standing in your name on the books of the said company, for the sum of (fifteen) fourteen thousand dollars, on or before September first next. Payment to be made by us in our notes running to your order for 3 and 6 months, payable at the Mechanics’ Bank, with interest at 6 per cent, per annum, upon the delivery of said stock to us. (The above change of the word ‘fourteen’ instead of ‘fifteen’ has been made before signing of this promissory letter.) Should said eight hundred shares of stock as per letter of June 13, 1890, to the Int. Sulphite F. & P. Co., proposing to purchase perpetual right to two digesters, be not utilized therefor.
[Signed] “George N. Fletcher.”
Indorsed across paper:
“This agreement is hereby accepted, and shall sell this stock as per this letter.
[Signed] “Charles L. Ortmann.”
The defendant denied the validity of this alleged contract, asserting that his signature was obtained with the understanding that it was not to be binding until several others signed it, who, together with himself, were having negotiations with the plaintiff in relation to his stock in said company, and that another arrangement was'after-wards made covering all of the plaintiff’s stock, which was reduced to writing, and signed by all upon the same day, thereby superseding the previous arrangement.
This writing provided for the sale by Ortmann, and the purchase by Weston, Dickinson, and the defendant, of 3,216 shares of stock, for a price stated, and continued as follows:
“It is further agreed by the said Ortmann, as part of the entire consideration for which said money is paid and agreed to be paid, that he hereby relinquishes to and makes over to the purchasers any, every, and all claims against them, or either of them, and against said company, for dividends, earnings, or other claim or demand of any kind or nature, including the contract made by Fletcher, Weston, Field, and Dickinson for the sale to said Ortmann of $60,000 of par value of said stock, dated May 11, 18871' And it is further agreed, as-'part of the entire consideration inducing said payment.of money and of notes to'said Ortmann,” that he, the said Ortmann, will sell and deliver to said parties for the said company, for a license to manufacture under the Mitcherlich process, in two digesters of two and one-half tons each per day, 800 shares of other stock in said company, and $2,500 in money, provided the Manufacturing Investment Company of New Jersey shall sanction such license, and to which sanction the parties pledge their best efforts in good faith to obtain; but, in case of failure to obtain said sanctions, and said transfer of said 800 shares shall not take place in accordance with this agreement for license, then for said 800 shares, and for all stock held by him, the said Ortmann agrees to and does hereby waive any and all claim of every name and nature against said company, and all and every stockholder thereof, for earnings or dividends on such stock, except subject to the liabilities of said company appearing by the books, or now outstanding in the notes of said company, — intending hereby to place said stock in the same relative positions as that of the original promoters of the company. These presents and this transaction is an amicable adjustment and settlement forever of all differences between the parties, and every of them, and of all claims, one against the other or others, or against or for said company, whether such claim or claims are admitted or denied.
“ Dated June 14, 1890.
[Signed] “Charles L. Ortmann.
“Isaac M. Weston.
“George N. Fletcher.
“Don M. Dickinson.”
On the other hand, the plaintiff claims that the contract relied upon by him was made after this writing was made, and after Fletcher knew that the purchase of the two digesters had fallen through.
The plaintiff proceeded upon the theory that, having tendered the stock to the defendant, he was entitled to recover the purchase price, and he requested the 'court to so charge by requests numbers 1 and 2. The court instructed the jury that, to entitle him to recover, it was not enough to show a tender, but that it must further appear that the plaintiff was at all times able and willing to deliver the specific stock sold. Error is alleged upon this instruction, and several cases are cited to sustain the proposition that the vendor of stock need not retain the identical shares tendered; but we think these cases are not applicable when'specific shares are bargained. In Allen v. Dubois, ante, 115, it was held that a pledgor of stock was entitled to a return of the identical shares pledged, and we think the rule should include cases when specific shares are purchased, as in this case.
It is insisted by the plaintiff that it was not necessary that he be able at all times to deliver the stock tendered, and that it was sufficient if he was prepared to deliver it upon the trial, inasmuch as the tender was refused and no demand was made for the stock. Our understanding is that it was incumbent upon the plaintiff to keep the tender good, — that is, that he must have been able at any time to produce and deliver the identical stock sold, upon demand, as the property of the defendant, — it being upon the theory of the defendant’s ownership only that the layv permits the plaintiff to recover the purchase price. It does not follow that he was not able and willing to deliver the stock because it was pledged (Stokes v. Mackay, 147 N. Y. 232), and our understanding is that the judge so held, leaving it to the jury to find whether the stock, though pledged or sold, was subject to and within his control for the purpose of delivery under his contract with the defendant, so that he could have delivered it had he been called upon for it. This was an open question, inasmuch as Ortmann had given to Standish a bill of sale of the stock, and Anderson, his receiver, had practically done the same. The charge of the judge was therefore as favorable as the plaintiff had a right to expect.
Error is assigned upon a. number of subjects in connection with the introduction of evidence. As heretofore stated, an important question of fact lay at the threshold of the case. The plaintiff claimed and testified that the defendant knew when he signed the alleged contract, on June 14th, that his proposition to use two digesters was given up. Anything that tended to contradict this was admissible. Thus, the books of the. Sulphite Fibre & Paper Company tended to show that the proposition was under consideration at a later date. The letter written by the plaintiff, and dated October 16th, had a tendency in the same direction, in connection with testimony that negotiations to that end were still pending, and were after-wards continued to his (Ortmann’s) knowledge. The court did not allow the jury to find that the plaintiff was bound to buy the digesters. He did allow them to consider the evidence relating to these negotiations, in connection with the writing sued upon, to aid them in determining whether that was a binding contract or not. The defendant stated that, as late as November 8th, he communicated with the president of the Manufacturing Investment Company in relation to this subject, at the request of Ortmann. In connection with this testimony, a copy of his letter was introduced, against objection. To the extent that it tended to show that the negotiations were still pending it was material.
We are of the opinion that the modifications of the plaintiff’s first and second requests were proper.
The judgment is affirmed.
The other Justices concurred. | [
52,
-4,
51,
11,
-23,
16,
38,
-37,
37,
11,
19,
4,
20,
36,
16,
26,
63,
-27,
48,
-12,
19,
-67,
-34,
-17,
8,
-27,
7,
-33,
-1,
-14,
-3,
57,
-3,
-41,
-20,
14,
-6,
-27,
16,
-11,
28,
18,
70,
-48,
13,
3,
24,
-41,
0,
-18,
53,
0,
12,
-43,
-8,
-13,
-10,
23,
-20,
41,
-7,
-71,
60,
-13,
10,
14,
9,
68,
46,
-3,
-31,
-34,
-6,
-1,
8,
-33,
3,
3,
-45,
-29,
-8,
-22,
20,
-54,
-32,
44,
9,
6,
39,
32,
29,
-44,
7,
-38,
-26,
33,
-17,
18,
-9,
28,
13,
-30,
-38,
-41,
19,
59,
-8,
20,
-35,
59,
-30,
-12,
33,
-51,
-17,
-41,
-36,
11,
-33,
-14,
-27,
8,
-34,
76,
-18,
-6,
-32,
-10,
8,
20,
0,
-43,
-61,
44,
18,
32,
-8,
-52,
-21,
16,
-35,
34,
-68,
-1,
-35,
17,
38,
-9,
-27,
0,
-35,
-25,
-1,
35,
32,
-14,
-16,
7,
48,
-61,
2,
-45,
25,
1,
-15,
29,
22,
-32,
-43,
47,
-51,
-8,
1,
-41,
20,
44,
28,
-2,
-35,
-15,
-7,
13,
10,
-10,
19,
-24,
12,
-17,
61,
31,
29,
9,
-50,
-1,
-65,
-3,
-4,
4,
52,
33,
10,
-35,
-34,
12,
-18,
-49,
19,
-36,
2,
0,
-9,
49,
-8,
-26,
-32,
37,
-10,
-77,
8,
-9,
15,
-37,
-28,
2,
-6,
-32,
30,
28,
-32,
-26,
-72,
-5,
34,
11,
-33,
22,
31,
12,
28,
-8,
-50,
-15,
-38,
-7,
0,
-34,
-48,
-26,
-22,
65,
15,
5,
-27,
1,
-15,
-14,
-68,
-6,
-16,
-46,
45,
45,
-53,
40,
6,
-83,
12,
-2,
-5,
19,
10,
-2,
21,
50,
-42,
-5,
-15,
-26,
-14,
3,
40,
-38,
-2,
-28,
-10,
1,
0,
25,
-52,
-8,
-15,
18,
1,
-52,
33,
38,
-20,
-12,
26,
32,
-16,
-22,
23,
-12,
22,
26,
-13,
24,
17,
-13,
45,
-15,
-27,
-37,
-19,
-10,
31,
60,
21,
-33,
37,
9,
-3,
73,
19,
5,
35,
-30,
-11,
17,
5,
9,
-47,
-13,
-53,
3,
-4,
-18,
-13,
-36,
18,
27,
-21,
14,
-36,
-2,
-11,
2,
-35,
-25,
-19,
-40,
19,
27,
-8,
48,
34,
43,
-13,
7,
85,
0,
42,
7,
-19,
27,
-57,
-26,
18,
52,
17,
20,
26,
-27,
44,
-26,
0,
-20,
-18,
42,
4,
-12,
14,
-45,
41,
1,
-17,
15,
-54,
-68,
-77,
13,
34,
79,
16,
-73,
-34,
-30,
1,
-3,
10,
43,
6,
-10,
-9,
-64,
19,
13,
20,
13,
19,
-4,
-28,
-34,
-4,
-65,
5,
-3,
46,
-26,
18,
-50,
9,
-40,
49,
-13,
19,
23,
-47,
-7,
-38,
3,
18,
6,
-24,
18,
-20,
28,
-13,
0,
44,
36,
-43,
16,
38,
40,
17,
20,
31,
-3,
16,
13,
23,
14,
-16,
50,
23,
-6,
28,
10,
10,
-15,
63,
-42,
-30,
46,
65,
0,
6,
34,
-17,
-1,
24,
-42,
-39,
12,
6,
-4,
-34,
-28,
-7,
30,
0,
3,
9,
-29,
42,
-18,
-15,
-5,
32,
-6,
5,
-7,
21,
22,
-16,
24,
18,
51,
-2,
-51,
26,
29,
-7,
15,
6,
-13,
2,
30,
53,
-10,
-14,
-28,
8,
26,
-34,
-9,
47,
62,
5,
38,
-6,
10,
0,
10,
39,
0,
-12,
-49,
7,
-32,
4,
-24,
24,
-74,
0,
-22,
-24,
-33,
-37,
-28,
18,
1,
-62,
19,
0,
-14,
-23,
15,
-76,
-5,
30,
30,
13,
50,
22,
1,
-13,
-26,
-62,
-6,
2,
0,
0,
-31,
-22,
-10,
10,
19,
-7,
18,
38,
46,
12,
-24,
22,
15,
1,
-2,
17,
-17,
25,
-51,
-42,
-13,
0,
-10,
-4,
-4,
20,
-11,
-17,
-36,
34,
5,
40,
33,
-2,
12,
-50,
-18,
-45,
-21,
-37,
-44,
-29,
58,
-10,
27,
-6,
0,
21,
23,
-30,
-10,
26,
-43,
54,
0,
18,
6,
6,
24,
33,
3,
-17,
-9,
-36,
36,
0,
-66,
-52,
52,
0,
32,
-2,
11,
-36,
0,
19,
-39,
-13,
-14,
-13,
-2,
12,
14,
57,
41,
0,
-25,
77,
-16,
-13,
-1,
-26,
17,
0,
-23,
23,
6,
-10,
5,
-2,
-5,
33,
-44,
20,
-27,
50,
-26,
6,
-14,
53,
-24,
28,
39,
53,
34,
-5,
29,
42,
-20,
45,
-38,
26,
11,
-30,
-28,
0,
-11,
-40,
14,
-7,
9,
32,
-46,
7,
-44,
-45,
15,
9,
51,
42,
-20,
-60,
27,
31,
36,
53,
-53,
0,
2,
-8,
29,
2,
20,
-31,
-38,
0,
-17,
53,
-22,
4,
-16,
-36,
14,
-52,
3,
13,
-1,
10,
23,
-2,
47,
-19,
-74,
-30,
-17,
-13,
-43,
-60,
4,
-60,
-1,
-18,
24,
9,
0,
0,
-20,
53,
37,
86,
-23,
-58,
0,
-71,
-20,
-1,
2,
10,
-39,
-6,
30,
4,
-44,
9,
-28,
-63,
6,
-12,
0,
9,
28,
8,
12,
29,
0,
8,
-31,
-24,
2,
-27,
-11,
52,
50,
50,
18,
-26,
29,
15,
-34,
-48,
8,
35,
34,
10,
-23,
-43,
-47,
-10,
-28,
-9,
1,
33,
7,
-11,
11,
-56,
38,
-7,
-40,
-1,
9,
-32,
-48,
-10,
43,
-25,
-18,
-28,
18,
-2,
-31,
-30,
38,
-8,
17,
51,
-13,
-30,
-2,
2,
37,
-7,
-25,
-14,
-28,
-2,
-42,
-27,
-9,
59,
25,
-21,
38,
-6,
-4,
0,
-10,
-43,
-30,
-24,
-29,
-25,
-16,
-22,
53,
50,
34,
-73,
71,
46,
-41,
-17,
-20,
-31,
-11,
45,
22,
-13,
-29,
-16,
10,
-14,
-53,
49,
-3,
-31,
38,
34,
-17,
-36,
5,
46,
10,
38,
11,
-29,
-41,
29,
-17,
42,
-51,
85,
-26,
32,
31,
-33,
-5,
36,
34,
-20,
-4,
29,
-3,
9,
41,
53,
5,
52,
15,
-36,
35,
-2,
-9,
-8,
17,
33,
-7,
-26,
6,
-5,
28,
3,
25,
15,
21,
1,
-17,
-18,
-6,
42,
-21,
-1,
-40,
6,
61,
54,
-26,
0,
3,
-10,
-1,
7,
17,
31,
20,
-18,
-4,
10,
57,
-19,
-15,
4,
0,
-32,
-32,
10,
13,
-19,
0,
23,
-24,
-6,
24,
14,
-45,
15,
22,
-17,
-17,
-42,
19,
20,
-11,
23,
-16,
36,
-36,
-55,
51,
-12,
-8,
8,
17,
3,
5,
-10,
8,
9,
-16,
3,
-38,
21,
6,
33,
-60,
-14,
-41,
-14,
14,
-70,
-1,
30,
-9,
-30,
-46,
-22,
13,
42,
46,
12,
10,
-27,
-9,
11,
16,
34,
-19,
-32,
79
] |
Hooker, J.
The record shows that the defendant became a stockholder in a corporation known as the Rapid Hook & Eye Company, by signing its original articles of association. Being sued for the amount due upon assessments on his stock, he has defended upon the grounds following, as shown by the testimony: Julius Berkey owned some patents upon hooks and eyes, and he proposed to organize a corporation to purchase said patents, and manufacture hooks and eyes under them. One Doty acted as promoter, and, by arrangement with Berkey (who holds a majority of the stock), induced the defendant and others to subscribe to the capital stock by persuasion and promises which are alleged to have- been untrue and fraudulent; and, among other things, it is claimed'that the defendant was promised that the company would take his stock if he became dissatisfied with it, though, in this connection, it may be said that proof of this allegation does not appear in the record, which purports to contain “the substance of all of the evidence given.” It is asserted, further, that the company ratified the action and undertakings of Doty, but we find nothing in the record justifying the statement, except the answer, “Yes, sir,” to the question asked Doty by the defendant’s counsel, “Were your acts afterwards ratified by the company in securing subscribers to stock? ” It is not claimed that the stockholders took any such action, and the witpess said that he never met the board of directors, and it is not too much to say that there is not a scintilla of evidence that the corporation ever assumed or ratified his representations or engagements. The trial judge stated his understanding of the defense as follows:
“The theory of the defense, as announced by counsel and made a part of this record, and as set forth in his notice, is that the plaintiff ought not to recover for the following reasons: First, because one Payson M. Doty, acting for and in behalf of Julius Berkey, made certain false and fraudulent representations to the defendant, which induced the defendant to subscribe for the stock in question; second, that the defendant relied upon those representations, believing them to be true; third, that he would not have subscribed for the stock had not those representations been made to him; fourth, that, if the defendant did not wish to retain the stock, it would be taken off his hands, and he relieved from responsibility; and, fifth, that the action of Mr. Doty and Mr. Berkey was ratified by the plaintiff.”
The court added:
“But the defendant relies entirely, as a defense to this action, upon the ground that the reputed false and fraudulent representations which would defeat this action were made by the promoter, Mr. Berkey, and his reputed agent, Mr. Doty, prior to the time of subscribing for the stock and signing the articles of association, and wefe subsequently ratified by the plaintiff. Upon these grounds the defendant rests his defense, and must stand or fall upon the law applicable to it.”
The case of St. Johns Manfg. Co. v. Munger, 106 Mich. 90 (29 L. R. A. 63, 58 Am. St. Rep. 468), is conclusive of the case. The crucial question was that of ratification, and, as there was no evidence tending to prove it, the jury should have been directed to render a verdict for the plaintiff.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
55,
-22,
58,
-33,
-17,
8,
2,
-24,
16,
11,
0,
-27,
35,
58,
36,
7,
46,
-15,
30,
-17,
0,
-21,
3,
-30,
-26,
-6,
-13,
1,
38,
-8,
46,
32,
-22,
-32,
-30,
42,
-18,
1,
-5,
-20,
-9,
44,
56,
-52,
25,
11,
-30,
-38,
16,
-15,
83,
-12,
31,
-14,
-4,
1,
8,
27,
-25,
28,
-7,
-50,
73,
-42,
-3,
53,
12,
-5,
-7,
-7,
-26,
-3,
-21,
16,
17,
-88,
-10,
-6,
4,
-21,
-22,
-29,
18,
-24,
-58,
50,
-12,
9,
-25,
-20,
43,
-15,
-26,
-11,
14,
33,
-22,
17,
8,
22,
0,
0,
-21,
-31,
35,
38,
-13,
-16,
-48,
21,
-30,
6,
42,
-20,
13,
-27,
-60,
-25,
-22,
-21,
-23,
-15,
-18,
14,
3,
42,
-34,
-12,
-11,
14,
-7,
-23,
-17,
2,
32,
18,
-60,
-35,
14,
-25,
4,
47,
-48,
-10,
-62,
45,
-51,
8,
-24,
17,
0,
-5,
-5,
-4,
17,
0,
-24,
-2,
66,
-42,
-7,
6,
-2,
26,
-42,
32,
5,
-13,
-33,
57,
-19,
14,
-48,
-11,
14,
5,
8,
-48,
-47,
-43,
-23,
30,
-16,
11,
10,
-6,
42,
7,
27,
44,
-3,
25,
-47,
40,
-28,
17,
5,
24,
39,
-1,
26,
0,
-42,
-20,
-11,
-33,
36,
-26,
-33,
6,
-4,
10,
49,
-38,
-33,
34,
6,
-34,
17,
-12,
13,
-29,
-30,
18,
-12,
-34,
9,
36,
-45,
-25,
-42,
8,
12,
38,
-20,
-18,
0,
-25,
3,
10,
-66,
-35,
-14,
-12,
-2,
-48,
5,
17,
-28,
58,
-53,
58,
10,
38,
-27,
-74,
-81,
0,
7,
-7,
-12,
42,
-51,
43,
42,
-59,
46,
33,
-20,
-4,
-5,
-3,
30,
34,
0,
-64,
-36,
-14,
-2,
-36,
47,
5,
-21,
-29,
-30,
-27,
-27,
47,
-34,
-2,
11,
54,
8,
-21,
48,
28,
5,
21,
31,
15,
-18,
-28,
17,
2,
43,
13,
-31,
10,
8,
-39,
-22,
1,
14,
-37,
33,
-37,
21,
40,
-7,
-41,
-30,
9,
-2,
-7,
-3,
-20,
47,
-41,
31,
-1,
-24,
-10,
22,
-32,
-30,
12,
45,
-25,
21,
-19,
-7,
16,
22,
-8,
12,
37,
5,
-40,
-2,
-26,
-14,
-38,
3,
-12,
20,
28,
28,
20,
-9,
-25,
40,
-23,
5,
-13,
25,
-3,
-20,
-18,
-10,
33,
30,
-5,
-2,
-12,
39,
-16,
-20,
-29,
14,
71,
-26,
-37,
55,
-32,
5,
-16,
-17,
-29,
-20,
-16,
-35,
57,
6,
55,
-15,
-44,
-63,
-26,
21,
-30,
-8,
39,
-5,
-6,
-15,
-2,
-9,
26,
-17,
7,
-9,
54,
2,
0,
-40,
-40,
-20,
12,
18,
5,
47,
-24,
-19,
-1,
31,
-27,
-2,
7,
-60,
-63,
-2,
20,
30,
-33,
-19,
25,
27,
35,
29,
-9,
12,
-37,
-35,
38,
56,
27,
49,
-8,
35,
-5,
9,
-11,
41,
6,
3,
29,
73,
11,
40,
36,
1,
34,
14,
-3,
20,
-17,
43,
-47,
18,
17,
2,
-15,
-21,
-26,
-16,
47,
-6,
43,
-49,
-45,
6,
41,
43,
31,
-8,
12,
-19,
-32,
53,
29,
24,
5,
6,
-20,
-37,
14,
14,
4,
8,
51,
-16,
-9,
23,
-17,
-10,
16,
24,
-52,
14,
33,
-2,
-11,
16,
-6,
-25,
12,
-20,
31,
-18,
23,
28,
-20,
-58,
-6,
-70,
45,
16,
-13,
8,
-42,
13,
9,
1,
-30,
43,
-28,
37,
-29,
-36,
-27,
-38,
-4,
28,
-5,
-5,
-38,
63,
49,
6,
-18,
-44,
27,
34,
42,
7,
38,
17,
5,
-24,
47,
-63,
3,
2,
-20,
21,
-16,
2,
27,
1,
-26,
-14,
-6,
24,
96,
35,
-5,
1,
23,
7,
-14,
0,
29,
45,
-44,
-18,
16,
-13,
-8,
-45,
-13,
13,
-18,
-26,
-17,
41,
5,
18,
19,
-29,
27,
-38,
29,
-13,
-44,
-64,
-34,
2,
34,
-2,
48,
-5,
-31,
58,
-12,
7,
10,
0,
-41,
40,
-3,
29,
13,
-28,
29,
43,
-17,
-37,
13,
-7,
12,
-17,
-61,
13,
66,
-20,
-5,
-15,
1,
-53,
17,
-24,
-37,
-3,
-13,
28,
-19,
-56,
22,
26,
8,
6,
-4,
55,
-6,
-8,
-32,
-41,
0,
-5,
-22,
-15,
7,
2,
-7,
25,
-17,
7,
-7,
16,
-8,
60,
-22,
24,
13,
14,
-14,
12,
-19,
19,
66,
-5,
2,
23,
-46,
20,
1,
23,
15,
20,
-63,
-3,
-10,
10,
-18,
-20,
-28,
20,
-86,
33,
-28,
-31,
-12,
-9,
65,
43,
-41,
-5,
3,
35,
-8,
48,
-44,
21,
-17,
-14,
22,
-6,
51,
-9,
-10,
-36,
-15,
31,
-30,
2,
56,
3,
-5,
-18,
-8,
25,
-20,
-5,
22,
0,
52,
-11,
-108,
-2,
7,
0,
-50,
-6,
17,
-39,
17,
-22,
19,
5,
58,
6,
21,
26,
8,
47,
16,
-50,
-11,
-48,
-28,
-22,
18,
0,
-62,
-40,
61,
-3,
-69,
-12,
-33,
-52,
-4,
-8,
7,
2,
13,
25,
-6,
0,
39,
51,
-28,
-24,
26,
-30,
24,
31,
23,
56,
-8,
19,
-4,
-29,
4,
25,
11,
15,
-25,
-8,
-28,
-14,
-39,
-8,
16,
-9,
-28,
72,
-22,
17,
-4,
-47,
22,
17,
-41,
-19,
-38,
-33,
-57,
-54,
-16,
-39,
6,
-9,
16,
-16,
6,
-12,
-19,
-14,
28,
51,
18,
-20,
29,
-20,
29,
16,
-25,
-39,
0,
-19,
8,
-41,
50,
17,
-6,
-36,
0,
-26,
-9,
-12,
31,
-40,
-41,
-40,
-41,
29,
-10,
-26,
-1,
34,
-12,
-21,
27,
31,
-39,
5,
-24,
-35,
-33,
30,
69,
-57,
-3,
-5,
16,
-28,
3,
3,
44,
-41,
33,
7,
-8,
-18,
10,
23,
-28,
-4,
7,
-3,
-14,
30,
-32,
31,
-24,
25,
-25,
2,
30,
-16,
34,
1,
48,
-1,
-3,
38,
8,
-43,
38,
41,
12,
3,
21,
-40,
34,
3,
0,
-33,
-4,
1,
-8,
7,
-21,
0,
7,
43,
26,
39,
62,
30,
-22,
-9,
1,
-5,
37,
9,
-39,
7,
26,
41,
-29,
-15,
15,
-44,
-12,
-8,
19,
4,
-20,
-35,
22,
-12,
62,
-62,
-14,
-8,
-2,
-23,
-18,
50,
49,
-32,
12,
0,
15,
21,
30,
11,
-49,
55,
-17,
27,
-22,
-7,
11,
-22,
-40,
-4,
4,
32,
25,
-35,
57,
-9,
-32,
13,
-4,
2,
-20,
12,
9,
-39,
23,
-44,
-51,
57,
2,
20,
-65,
32,
-11,
12,
6,
-53,
12,
34,
3,
-3,
-40,
-7,
-23,
30,
42,
8,
8,
-37,
-6,
-35,
21,
-28,
-18,
0,
-1
] |
Hooker, J.
The defendant was convicted of the offense of breaking and entering a store, not adjoining to nor occupied with a dwelling, with intent to commit larceny. Upon the trial there was testimony tending to show that among the articles 'taken from the store on the occasion of the breaking were some butcher knives, and that similar knives were subsequently found upon the premises of the defendant. A complaint was made against him by one' Baxter, who was the manager of the store, which was afterwards withdrawn. The officer who made the arrest in this case testified that, when he demanded admittance to his house, the defendant for a time refused to admit him, but finally said he would do so when he got dressed. After a time he was admitted, but could not readily find, the defendant, and, after a somewhat protracted search, was told by his wife that he had got so far away, by that time, that he would not get him. Finally he removed an oil cloth from the floor, and discovered a trapdoor, beneath which he found the prisoner. After stating the charge upon which he was arrested to the defendant, he said that he “supposed he would not be bothered for that again, for he supposed it was fixed up;” and that “they had ruined him, and had got all that he had in the world, and that it had cost him §2,000 already. All they would get now was his body, and they could have that if they wanted it.”
To prove the charge, the prosecutor called Baxter, the manager, who testified to the circumstances showing the breaking and entering, and the interference with the property contained in the store. He*did not identify the knives alleged to have been found at the defendant’s premises with positiveness. Upon the claim that he was an adverse witness, the prosecutor was allowed to ask direct questions, and showed that he received $400 or $500 as pay for the stolen goods, and that he withdrew the complaint; that he afterwards took the money back. He was also examined in relation to his statements in regard to the identity of the knives when they were discovered. It was within the discretion of the trial j udge to allow the prosecutor to show by the witness Baxter, through leading questions, his conduct in receiving money and withdrawing the first complaint. He was not permitted to state the name of the person who paid it to him, and his supposition that it came from the defendant was stricken out. The testimony of the sheriff tended to connect the receipt of the money with the defendant, and made Baxter’s testimony material. The witness was asked if he did not say, in the presence of one Garner, that the knives came from the store, and had his marks upon them; but the question does not appear to have been answered as thus put, and later, when asked if he did not say this to Garner in the presence of the defendant, he said that he did not remember. We do not discover that the record shows that all of the testimony is included, but, if it did, we should think that no error was committed in allowing the jury to see the knives found upon defendant’s premises.
Among the witnesses called by the prosecutor was one Dickinson, a blacksmith, who was working for the defendant at the time of the burglary. He testified that the defendant came home about 12 o’clock that night, but that he had been asleep, and did not positively know the time, and, after being confronted with and allowed to read his deposition upon the examination, admitted that in the justice’s court he testified that it might have been 4 o’clock and it might have been 12. It appeared, also, that he was subpoenaed at Holland, and furnished with a ticket, upon a telegram from the sheriff, to enable him to attend the trial; that he met the defendant at Durand, and was accompanied by him to Flint, and that they went from the train to the office of the defendant’s counsel, and from there to the defendant’s house, where he remained that night; that he did not see the sheriff at the depot, but got off from the train with the defendant at the bridge. He was examined quite closely by the prosecutor. The only suggestion of error made in the brief upon Dickinson’s examination is that the court permitted the prosecutor to cross-examine him, and the witness to answer numerous leading and impudent questions. Leading questions are usually within the discretion of the circuit judge, and mere impudence to a witness is not a ground for reversal.
Counsel assign error upon the remarks of the prosecu ting attorney in his address to the jury. We find nothing that would justify a reversal of the judgment. Again, if the statement in the prosecutor’s brief is true, viz., that neither the court nor the prosecutor was apprised of the exceptions, which were' noted by the stenographer in response to nods of the counsel for the defendant, which does not seem to be contradicted, the questions should not be considered. The office of exceptions should be to apprise the court of alleged errors, with a view to their correction, when possible; and, with the exception of cases where errors are alleged upon the charge, exceptions must be brought to the attention of court and counsel at the time the alleged error is committed.
Statement No. 18 was not a proper one for the prosecutor to make. His recollection of what Garner testified in the justice’s court was not proper evidence, but it was an immaterial point, inasmuch as no attempt appears to have been made to contradict Garner’s statement that his attention had not been called to the number of knives at the examination. The subject was not very material, in any view of the case, and could hardly have affected the verdict. The court was careful to instruct the jury to disregard statements not justified by the evidence.
Error is assigned upon the refusal of the judge to give several of the defendant’s requests to charge, but we think the general charge sufficiently covered the subjects.
The quotation of the testimony of a witness in relation to the situation of'the premises, if erroneous (which we do not assert), was not injurious, as, under the testimony contained in the record, there was no dispute as to the store not being adjoining to or occupied with a dwelling house.
We are of the opinion that it was competent for the court to permit the information to be amended, upon the motion to set aside the verdict, by permitting the clerk to sign the jurat, which the proof showed his failure to do earlier was a clerical omission.
Error is assigned upon the refusal of the trial court to submit the following special question to the jury, viz.: “At what hour do you find that the breaking and entering of the store occurred, if * * * at all?” Any limitation upon the right of the jury to find a general verdict in criminal cases is against the policy of the law, and, as intimated in the case of People v. Marion, 29 Mich. 40, the right to require answers to special questions in criminal cases would be revolutionary. Cooley, Const. Lim. (6th Ed.) 393 et seq.
We have examined the numerous assignments of error, and think it unnecessary to discuss others.
•The judgment is affirmed.
The other Justices concurred. | [
24,
-13,
14,
-26,
-51,
-48,
3,
-21,
-44,
41,
30,
-20,
-4,
42,
12,
-13,
12,
-28,
30,
-6,
29,
-50,
11,
22,
20,
-57,
28,
15,
-18,
14,
20,
41,
53,
-16,
69,
27,
37,
-15,
28,
15,
1,
30,
36,
-36,
5,
23,
-5,
-32,
3,
-41,
65,
-15,
7,
-48,
34,
31,
11,
28,
-1,
6,
5,
6,
-8,
-48,
-28,
0,
-28,
-2,
-34,
-26,
-11,
-29,
-37,
-36,
-13,
-16,
-2,
27,
-23,
41,
14,
-3,
4,
26,
8,
-8,
-26,
-52,
-23,
-48,
32,
28,
35,
4,
37,
12,
-22,
7,
13,
-16,
-57,
6,
-63,
-32,
48,
30,
-54,
-68,
-60,
18,
-30,
16,
71,
-28,
17,
-54,
-29,
-3,
5,
-19,
24,
19,
8,
-47,
-4,
-22,
-2,
-15,
-2,
-35,
-31,
27,
0,
-45,
4,
-17,
-54,
28,
0,
10,
29,
47,
-4,
3,
12,
-42,
-12,
60,
-39,
67,
-14,
-37,
-23,
1,
69,
27,
-69,
-11,
-14,
7,
-64,
-17,
-30,
-35,
21,
-6,
-1,
-13,
-30,
8,
-6,
67,
-23,
13,
61,
0,
-16,
11,
17,
-63,
2,
-12,
14,
3,
16,
-18,
48,
-31,
-32,
47,
-4,
15,
-41,
-20,
30,
-15,
11,
-23,
49,
-27,
-4,
-8,
0,
-27,
42,
-13,
34,
-26,
-22,
-60,
-21,
32,
-5,
0,
-13,
-11,
-4,
-1,
9,
8,
-50,
22,
-22,
-37,
-42,
-3,
-12,
46,
-10,
-3,
-6,
-10,
2,
-35,
-16,
-17,
-27,
0,
47,
50,
-28,
-46,
-42,
-33,
19,
-33,
-32,
-14,
-45,
9,
23,
52,
-27,
38,
-86,
-26,
-6,
-59,
-17,
30,
12,
34,
3,
33,
-14,
1,
54,
38,
-38,
27,
-6,
-2,
-3,
54,
15,
15,
-51,
17,
-14,
-17,
62,
13,
16,
-30,
-1,
-68,
-18,
32,
32,
5,
16,
13,
-6,
-22,
63,
19,
2,
4,
-32,
-26,
-13,
-23,
1,
-2,
2,
38,
55,
40,
3,
-24,
25,
-7,
-5,
0,
42,
-22,
-3,
6,
-38,
49,
-30,
-26,
-28,
6,
57,
-3,
15,
-9,
32,
-32,
16,
-42,
-30,
-40,
-14,
20,
-32,
-1,
24,
3,
-12,
-26,
-23,
-64,
-5,
-12,
-44,
2,
-22,
-39,
102,
-18,
24,
14,
13,
7,
-35,
17,
11,
-16,
79,
-39,
-52,
0,
28,
-14,
-38,
-32,
-9,
37,
26,
-81,
30,
-3,
11,
3,
50,
-47,
3,
26,
18,
-7,
4,
-20,
-21,
23,
-2,
-38,
-3,
6,
-59,
65,
58,
-27,
-4,
10,
-30,
-43,
37,
-59,
-56,
11,
62,
-4,
-57,
-44,
-2,
-4,
7,
-26,
15,
6,
2,
41,
-40,
-2,
13,
-16,
-8,
-56,
34,
17,
52,
15,
40,
-7,
-24,
8,
-30,
-56,
23,
-38,
22,
-24,
-9,
26,
-39,
8,
23,
-33,
-37,
-31,
-60,
17,
45,
29,
-25,
-9,
31,
-17,
8,
-47,
8,
-27,
-14,
45,
6,
-8,
0,
3,
47,
10,
-53,
17,
55,
-11,
5,
-67,
-37,
-5,
12,
1,
8,
-31,
14,
52,
35,
31,
12,
-27,
5,
-11,
69,
71,
11,
-22,
-24,
-61,
5,
27,
39,
-20,
6,
-25,
40,
29,
8,
-17,
40,
61,
-24,
-39,
8,
-21,
21,
-11,
3,
30,
57,
10,
-32,
72,
-19,
-67,
-11,
3,
-29,
-1,
-18,
25,
37,
-15,
12,
26,
-39,
25,
9,
-1,
-63,
-39,
14,
-22,
16,
0,
82,
-26,
22,
-41,
47,
-25,
-6,
-21,
73,
68,
-18,
11,
55,
-41,
10,
25,
-1,
40,
27,
-31,
-2,
43,
-9,
-14,
18,
13,
-76,
16,
0,
23,
30,
-6,
-12,
36,
46,
-3,
-2,
42,
-15,
52,
-13,
-7,
-3,
-21,
13,
46,
8,
10,
-17,
-32,
-3,
17,
-22,
44,
8,
13,
-5,
0,
-12,
-28,
15,
-1,
-59,
6,
-5,
2,
23,
-13,
-33,
-2,
19,
-91,
9,
59,
-26,
50,
44,
2,
15,
3,
-35,
29,
-13,
-18,
-42,
23,
32,
12,
-56,
11,
2,
-34,
-8,
-21,
33,
-68,
-24,
-31,
34,
47,
-29,
-5,
14,
-4,
-77,
39,
-16,
-22,
-55,
-7,
-30,
52,
-15,
2,
7,
-17,
-14,
-10,
57,
16,
57,
-35,
-68,
14,
14,
-38,
-20,
-1,
-38,
20,
38,
28,
0,
-46,
-6,
-20,
44,
-2,
9,
19,
-1,
-20,
-17,
-7,
1,
-44,
30,
-21,
58,
7,
16,
-1,
17,
-29,
1,
-35,
0,
-11,
81,
-21,
79,
34,
57,
2,
-46,
-38,
-16,
-14,
35,
53,
67,
-45,
22,
-59,
1,
-5,
20,
6,
2,
23,
21,
-47,
-52,
28,
-10,
29,
-48,
8,
52,
8,
47,
24,
31,
-26,
11,
-17,
48,
-35,
-2,
-1,
-42,
62,
-52,
-27,
52,
24,
-32,
6,
-13,
-32,
-52,
-42,
0,
-31,
24,
35,
46,
35,
5,
0,
7,
14,
18,
-32,
-71,
-24,
-9,
45,
12,
-43,
-23,
49,
-11,
-45,
34,
-2,
-24,
-68,
-11,
-6,
-30,
34,
-5,
25,
3,
-26,
8,
0,
-23,
35,
-6,
29,
-9,
-11,
56,
-9,
14,
0,
-75,
-9,
-31,
0,
23,
-20,
-25,
-20,
0,
15,
22,
-43,
2,
-36,
57,
6,
-17,
-15,
-12,
-3,
-10,
-88,
-21,
-10,
24,
-61,
-9,
7,
4,
17,
-22,
-63,
-35,
-9,
-6,
-55,
-16,
-2,
-9,
23,
29,
19,
20,
29,
-49,
-24,
-34,
18,
21,
39,
40,
48,
55,
-19,
18,
-21,
-7,
-8,
45,
-11,
-24,
2,
-10,
-40,
-8,
14,
-33,
-44,
-12,
-3,
-2,
-54,
-9,
27,
18,
24,
13,
-23,
13,
19,
23,
-12,
4,
48,
-3,
-10,
7,
-29,
-20,
9,
6,
52,
-18,
-9,
-1,
-55,
27,
-1,
-32,
29,
27,
-18,
31,
-50,
24,
-9,
11,
-4,
6,
-19,
-47,
27,
5,
-44,
41,
0,
20,
10,
-3,
-9,
-14,
20,
24,
39,
-19,
19,
-9,
-3,
-43,
11,
70,
84,
44,
-12,
20,
-49,
-3,
68,
12,
18,
17,
1,
25,
-19,
1,
-24,
15,
17,
35,
17,
-10,
5,
-45,
15,
0,
8,
34,
16,
-12,
32,
-34,
13,
2,
11,
9,
-12,
-25,
-5,
-34,
-34,
-2,
-7,
13,
76,
25,
30,
-18,
-31,
29,
-39,
9,
-58,
39,
3,
-5,
22,
23,
25,
9,
-51,
-60,
44,
0,
-2,
47,
41,
-42,
23,
-24,
4,
-9,
62,
0,
-2,
-12,
-23,
-32,
-31,
-25,
-30,
11,
23,
-44,
-5,
12,
12,
-37,
-42,
-27,
-17,
25,
-7,
-20,
9,
1,
44,
-16,
28,
-32,
9,
-8,
91
] |
Long, J.
The declaration in this cause states that the plaintiff is a corporation under the national banking act, having its place of business in the city of New York, and, as such corporation, loaned the Western Farm Mortgage Trust Company, a Kansas corporation, $20,000, and on the 2d day of July, 1892, obtained a judgment against the Kansas corporation for $22,911.35, on which there has been issued an execution which has been returned unsatisfied, and since that time the plaintiff has credited on said judgment $7,094.60, the balance being wholly unpaid; that the Western Farm Mortgage Trust Company is insolvent, and has no property of any kind or description in Kansas or elsewhere; that defendant is a stockholder owning 10 shares, of $100 each, in said company, and became liable to the plaintiff for the amount of said stock. The declaration sets forth the provisions of the constitution and statutes of Kansas under which it is claimed the defendant became liable. The defendant demurred to the declaration, and the demurrer was sustained in the court below.
The constitution of Kansas, by section 2, art. 12, provides :
“Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.”
It is contended by counsel for defendant that no right of action against a stockholder of a corporation existed at common law, and that the above-quoted provision of the Kansas constitution created no liability, and is only a provision enabling the legislature of the State to pass statutes making stockholders liable for debts of corporations in con- f ormity therewith; that is, that the constitution creates no liability of itself, and is not self-executing. This view, it is claimed, was taken by the court below; and counsel for plaintiff concede that view to be correct. The only liability, if any, arises from the Kansas statutes (1 Gen. St at. 1889, § 1192), which provide:
“If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; hut no execution shall issue against any stockholder except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged, and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”
It is conceded by counsel for plaintiff that the first of these remedies provided by this statute could be enforced only in the State of Kansas; but it is contended that the other may be enforced in this State by an action, as no particular procedure is prescribed by the act, and therefore the form of procedure prescribed by the laws of the State where the stockholder resides can be resorted to, just as though the action were on a promissory note or other obligation of the defendant. In Howell v. Manglesdorf, 33 Kan. 194, speaking of this statute, the court said:
“It will be observed that two remedies for enforcing the individual liability of stockholders are prescribed in the statute above quoted. In the one case, the judgment creditor of an insolvent corporation may proceed by a summary action on a motion in the court where the judgment was rendered against the corporation; in the other, by an ordinary action to be instituted wherever personal jurisdiction of the stockholders can be acquired. * * :'r' This ruling does not deprive a creditor of the insolvent corporation of a remedy against the stockholder residing in another State, and upon whom service cannot be obtained here. While the liability is statutory, it is one which arises upon the contract of subscription- to the capital stock of the corporation, and an action to enforce the same is transitory, and may be brought in any court of general jurisdiction in the State where personal service can be made upon the stockholder.”
• It will be noticed that the statute, in providing for the recovery against the stockholder by action, empowers the plaintiff, whenever his execution is returned nulla bona against the corporation, to charge the stockholders with the amount of his judgment; but the constitution of Kansas provides that a stockholder’s personal liability cannot be more than the amount of the stock owned by him, so that the language of the act must be limited to that amount. The suggestions made by the court in Howell v. Manglesdorf, supra, are supported by the great weight of authority, in that, while the liability is statutory, it is one which arises on the contract of subscription to the capital stock, and an action to enforce the same is transitory, and may be brought in any court of general jurisdiction where personal service may be had upon the stockholder. In Morawetz on Private Corporations (section 870) the rule is stated as follows:
“If the company’s charter provides that the shareholders shall be subject to a special individual liability to creditors, -persons becoming shareholders agree to become liable, both in a corporate capacity and individually, to all persons who shall give credit to the corporation. They offer to all the world to become liable in their corporate capacity to the extent of the capital which they have agreed to contribute for the purpose of carrying on the company’s business, and they offer to become liable individually to the amount expressly provided by their charter or incorporation law. Parties who contract with the corporation contract upon the faith of this liability, held out as their security; and the offer of the shareholders, being thereby accepted, ripens into a binding contract.”
It is further said (in section 875):
“ It seems clear upon principle that a creditor of a corporation whose shareholders are individually liable for its debts may maintain a suit to enforce this liability wherever he can obtain jurisdiction over the necessary parties. The right to maintain a suit of this character outside of the jurisdiction of the State by which the corporation was chartered does not depend upon the comity of the State where suit is brought, or its willingness to recognize and give effect to the laws of a foreign State. It depends upon the willingness of the courts to enforce a contract validly entered into between the parties in another jurisdiction. A refusal to grant a remedy in a case of this kind would not be a refusal to enforce a foreign law; it would be simply a denial of justice.”
These principles are fully sustained by Thompson in his Commentaries on the Law of Private Corporations (volume 3, § 3050), Cook on Stock, Stockh. & Corp. Law (section 223), and by the. courts generally where these questions have arisen. Bank of North America v. Rindge, 57 Fed. 279; Rhodes v. United States Nat. Bank, 13 C. C. A. 612, 66 Fed. 512 (34 L. R. A. 742); Cuykendall v. Miles, 10 Fed. 342; McVickar v. Jones, 70 Fed. 754; Guerney v. Moore, 131 Mo. 650; Ferguson v. Sherman, 116 Cal. 169; Flash v. Conn, 109 U. S. 371; First Nat. Bank v. Gustin Minerva Con. Min. Co., 42 Minn. 327 (18 Am. St. Rep. 510); Morris v. Glenn, 87 Ala. 628; Huntington v. Attrill, 146 U. S. 657.
In McVickar v. Jones, supra, which was tried in the circuit court of the United States for the district of New Hampshire to enforce against the defendant the remedy provided by this same statute of Kansas, it was held that the action was transitory, and could be enforced in any State. This same statute was also before the court in Guerney v. Moore, supra, and the court discussed the distinction between the two classes of liability, the one penal and the other contractual, and held that the statutory liability under this Kansas statute was contractual, and not penal, and consequently might be enforced in any court of competent jurisdiction. This statute was also before the court in Ferguson v. Sherman, supra, and the same principle enunciated.
The court below seems to have relied upon the rule laid down in Marshall v. Sherman, 148 N. Y. 9 (34 L. R. A. 757, 51 Am. St. Rep. 654). That opinion is based upon Erickson v. Nesmith, 4 Allen, 233; but the court of Massachusetts has more recently limited the language of that case in Hancock Nat. Bank v. Ellis, 166 Mass. 414 (55 Am. St. Rep. 414), and now stands in line with the cases which support the action against stockholders under the Kansas act. Tuttle v. National Bank, 161 Ill. 497 (34 L. R. A. 750), is inline with Marshall v. Sherman, supra; but a dissenting opinion in that case was filed, in which three of the justices of that court found, holding to the doctrine laid down by the majority of the cases, that such actions can be maintained in any court of competent jurisdiction against stockholders, and that the statutory liability is contractual.
Many other cases might be cited in line with the above. We do not deem it necessary, however, as we are satisfied that to enforce this contract does not import the law of one State into another State, and give it an extraterritorial effect, in any proper sense. It merely allows the law to be read for the purpose of determining the contract into which the stockholder has entered. The contract is expressed by the statute and what the stockholders have written and done under it, when taken and read together as a whole. As said in Cook on Stock, Stockh. & Corp. Law (section 223):
‘ ‘ The law is clear that the courts of one State will not enforce penalties imposed by another State. But the usual statutory liability of stockholders is not a penalty. * * * In other words, the ordinary statutory liability of stockholders is a contract liability, and will be enforced as such by the courts of all .the States.”
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
-19,
-11,
14,
18,
22,
48,
59,
-44,
29,
-6,
-10,
-46,
21,
20,
20,
-6,
-42,
-20,
-2,
18,
12,
-61,
-62,
9,
28,
-6,
-1,
29,
13,
33,
17,
-39,
-27,
3,
-47,
6,
-30,
34,
-9,
-2,
29,
46,
19,
-26,
38,
29,
-10,
-53,
17,
1,
51,
-8,
9,
-5,
-17,
3,
22,
7,
-43,
0,
-1,
-49,
34,
-47,
13,
2,
12,
-3,
11,
-9,
-24,
9,
-14,
-1,
42,
-9,
-28,
-1,
-21,
-29,
-27,
-35,
37,
-69,
-91,
-3,
-42,
-23,
-10,
30,
-31,
6,
-41,
-31,
5,
14,
11,
72,
-54,
33,
14,
-47,
-7,
40,
-37,
0,
-27,
-72,
19,
-3,
-34,
0,
24,
-21,
-59,
-25,
-86,
30,
-6,
-6,
18,
10,
50,
20,
34,
34,
-45,
-7,
-23,
39,
-12,
-19,
-53,
14,
2,
-13,
-5,
-52,
-6,
8,
17,
-1,
-29,
-34,
-70,
0,
-13,
16,
15,
-21,
-19,
32,
54,
46,
-3,
15,
1,
-42,
11,
-44,
47,
-23,
27,
-24,
-49,
0,
-64,
8,
-56,
0,
-14,
43,
-52,
6,
4,
15,
11,
-58,
0,
-28,
4,
31,
3,
41,
-24,
-19,
-22,
16,
20,
30,
7,
-11,
-17,
0,
-52,
18,
-30,
-13,
15,
-47,
51,
-43,
-22,
-6,
20,
4,
15,
-5,
-21,
-13,
-20,
25,
15,
-7,
-57,
12,
-25,
-32,
14,
-26,
46,
64,
-64,
37,
-35,
-57,
36,
2,
-21,
-5,
26,
-52,
30,
-26,
-41,
27,
7,
-14,
44,
61,
-15,
-15,
19,
-39,
9,
2,
-6,
-8,
-62,
46,
0,
-12,
-15,
66,
-3,
4,
-16,
19,
-1,
-51,
10,
41,
-59,
26,
31,
-26,
-24,
53,
-29,
4,
-12,
-35,
76,
27,
-14,
-43,
23,
-13,
-25,
-10,
13,
-24,
0,
6,
-29,
40,
-22,
33,
-36,
-33,
38,
-53,
17,
22,
87,
-2,
-24,
8,
7,
-11,
-3,
-19,
-1,
15,
30,
17,
-56,
43,
-21,
-62,
0,
-20,
6,
-34,
40,
-24,
29,
66,
-1,
-66,
-42,
-8,
13,
11,
54,
-21,
50,
-51,
-4,
25,
-23,
-34,
12,
6,
18,
-17,
48,
16,
-45,
-40,
22,
-10,
6,
-13,
7,
18,
-22,
6,
-38,
17,
-50,
-45,
-4,
18,
-13,
-22,
-5,
11,
-20,
-9,
38,
-32,
-11,
-48,
34,
-51,
-9,
-20,
-10,
21,
23,
26,
-5,
-17,
15,
-15,
-43,
52,
-54,
14,
13,
0,
37,
-7,
27,
3,
-21,
-18,
-43,
22,
-33,
1,
19,
13,
-14,
-41,
-27,
-9,
-37,
-36,
-33,
3,
10,
2,
-40,
-38,
-9,
-29,
25,
1,
29,
11,
17,
-50,
-38,
16,
63,
-2,
70,
48,
28,
1,
11,
-37,
12,
-28,
-3,
48,
-35,
-86,
9,
-5,
13,
-9,
26,
36,
-3,
5,
24,
-4,
7,
16,
27,
44,
17,
-8,
-39,
-36,
38,
15,
4,
-3,
-19,
10,
-26,
32,
24,
-35,
-2,
-9,
42,
-1,
28,
10,
21,
4,
16,
-19,
68,
16,
-2,
-2,
-6,
34,
-20,
-32,
-8,
40,
-36,
-30,
11,
-12,
9,
-39,
-16,
-39,
-24,
39,
-40,
-26,
26,
41,
-13,
4,
-9,
13,
6,
18,
-30,
-13,
4,
-1,
33,
-22,
-5,
55,
-85,
-37,
-20,
63,
-5,
0,
43,
35,
5,
69,
-14,
17,
13,
-33,
48,
31,
-87,
6,
-45,
-7,
0,
62,
46,
-39,
7,
-24,
-1,
10,
-20,
43,
11,
-24,
13,
-53,
-24,
28,
-8,
36,
1,
0,
18,
9,
-5,
3,
1,
-29,
49,
13,
21,
-45,
-19,
-25,
29,
39,
-8,
42,
12,
-65,
5,
-3,
7,
3,
-38,
-57,
26,
17,
-29,
36,
-32,
19,
-13,
24,
-22,
-23,
10,
-14,
46,
-90,
-5,
26,
5,
-25,
7,
-24,
32,
-5,
10,
-9,
59,
-21,
29,
16,
-5,
55,
-28,
-25,
-57,
-20,
10,
16,
-29,
-8,
-17,
34,
-8,
-19,
27,
33,
53,
-17,
34,
13,
11,
-23,
-25,
-10,
-4,
-31,
-14,
-14,
16,
-1,
1,
22,
4,
-37,
-48,
8,
-20,
-6,
2,
35,
-16,
-3,
-30,
-22,
6,
-1,
-9,
9,
-26,
60,
31,
25,
-77,
26,
17,
-29,
-22,
20,
15,
62,
10,
-52,
19,
-12,
20,
53,
-19,
-18,
48,
16,
39,
39,
68,
-43,
49,
53,
60,
32,
-5,
-2,
8,
6,
-12,
-10,
46,
-2,
21,
-1,
36,
2,
22,
-41,
-5,
-30,
-22,
5,
19,
32,
3,
15,
6,
-45,
20,
-22,
0,
35,
26,
-16,
-34,
0,
4,
14,
65,
-59,
-24,
-65,
-24,
17,
-1,
9,
4,
5,
24,
-29,
-17,
-28,
6,
65,
23,
-24,
-23,
-6,
-17,
1,
-66,
18,
-24,
64,
28,
-35,
-15,
-20,
7,
19,
12,
62,
-34,
24,
-49,
24,
21,
21,
6,
16,
-6,
-33,
8,
-10,
-53,
-20,
-15,
-50,
-34,
15,
-10,
1,
-15,
27,
-13,
-31,
5,
-16,
24,
10,
-54,
2,
30,
11,
66,
-24,
9,
8,
75,
-18,
26,
9,
30,
-24,
10,
56,
-1,
44,
6,
-9,
39,
-9,
-37,
19,
16,
-9,
-20,
-28,
-16,
6,
-44,
24,
1,
19,
8,
25,
11,
-9,
-17,
-13,
-10,
2,
11,
13,
-20,
9,
-63,
-52,
-29,
3,
36,
5,
-19,
32,
-15,
24,
7,
10,
-12,
-40,
-74,
25,
64,
-7,
17,
15,
-8,
-35,
10,
-13,
-15,
-37,
22,
-5,
-24,
-15,
-12,
-32,
4,
-4,
-18,
-17,
-20,
-34,
8,
58,
-1,
50,
8,
4,
-26,
19,
3,
-77,
-70,
12,
-37,
-9,
-24,
43,
-41,
26,
-29,
48,
31,
-47,
36,
9,
-46,
23,
10,
48,
-23,
-1,
-14,
3,
19,
49,
-14,
3,
-19,
20,
9,
-12,
-24,
-29,
15,
-29,
0,
30,
-7,
3,
12,
15,
58,
46,
-24,
61,
13,
15,
19,
1,
-18,
60,
3,
-1,
35,
40,
-2,
22,
-14,
22,
-22,
23,
32,
45,
15,
-5,
8,
26,
-11,
25,
34,
21,
-19,
-38,
24,
-49,
28,
-11,
-3,
4,
-51,
-12,
26,
-26,
-25,
-66,
-56,
-10,
-8,
38,
3,
-30,
0,
-2,
-31,
-2,
9,
48,
1,
5,
1,
-32,
1,
-23,
-18,
-41,
16,
-5,
-37,
-26,
18,
11,
28,
-3,
4,
-15,
84,
-37,
-2,
62,
-51,
-41,
-4,
-13,
-32,
-11,
53,
75,
54,
0,
25,
1,
9,
7,
-3,
-56,
50,
-46,
21,
3,
7,
-50,
39,
35,
18,
-14,
-13,
-8,
61,
46,
18,
25,
23,
31,
4,
38,
30,
11,
-19,
26
] |
Grant, C. J.
(after stating the facts). The statute provides that all forest products “shall be assessed in the township or ward where the same may be * * * on the second Monday of April of the year when the assessment is made, except that, where such property is in transit to some place within the State, it shall be assessed 'in such place.” Act No. 206, Pub. Acts 1893, § 14, subd. 8. Section 15 of the same act is as follows:
“All forest products in transit on the second Monday in April in each year, and thereafter found in the waters or streams of this State, or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured, shall be held to have a place of destination at the sorting grounds of the rafting and driving agents or booming company nearest the mouth of the stream, unless the contrary shall be made to appear by the owner or party having the same in charge: Provided, that all lumber, logs, timber, lath, pickets, shingles, posts, cordwood, tanbark, telegraph or telephone poles, or railroad ties, that may be piled or left in any yard, railroad reserve, or in any shed, shall not be deemed in transit, but shall be assessed to the person or corporation having control of the yard, railroad reserve, shed, or place of storage where the same may be situated at the time provided by law for taking such assessment.”
The sole question is, Were these products in transit at the time of the assessment ? It is conceded that, from the moment these logs were cut in the woods, they were intended to be transported from there to plaintiff’s mill at Elk Rapids for manufacture, and that the only delay contemplated was that caused by the condition of the water. Reliance is placed mainly upon Hill v. Graham, 72 Mich. 659. That decision was rendered in November, 1888, under the act of 1885 (Act No. 153, § 11, subd. 4). The law of 1885 was amended in 1889 (Act No. 195), adding, after the words “streams of this State,” these words: “or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured.” It is fair to presume that the amendment of 1889 was made in view of the decision of Hill v. Graham. In that case the jury were instructed that if the logs in question were not in the waters or streams, were not actually started on their way, but were in unbroken piles, awaiting the breaking up of the river or rise of water before starting, the mere intent of the ownérs, unaccompanied by any acts showing their purpose to drive the logs, would not justify the finding that the property was in transit. The jury undoubtedly found, and based their verdict upon the fact, that the logs were simply banked, and were not in the stream. Under the law of 1893, which is the same as that of 1889 and 1891, when forest products are on the banks or shores of any lake, pond, or stream, and not at the place of manufacture, the destination is at the sorting grounds, unless the owners make the contrary to appear. The contrary is conclusively shown in this case. The case of Maurer v. Cliff, 94 Mich. 194, does not apply, because the products there involved were within a provision of the statute of 1891 identical with the proviso of section 15 of the act of 1893 above quoted. The case is within the rule laid down in Brooks v. Township of Arenac, 71 Mich. 231; Pardee v. Township of Freesoil, 74 Mich. 81; Corning v. Township of Masonville, Id. 177.
The judgments will be reversed, and judgments entered here for the plaintiff, with the costs of both courts.
The other Justices concurred. | [
14,
51,
-10,
-21,
21,
49,
63,
60,
13,
34,
-21,
-6,
22,
-25,
51,
-6,
9,
5,
-6,
71,
48,
25,
5,
13,
-43,
-21,
17,
52,
-7,
66,
-14,
22,
-33,
-19,
39,
9,
-22,
27,
-7,
14,
-42,
9,
9,
9,
45,
9,
46,
-23,
44,
11,
37,
-16,
-19,
-4,
35,
57,
-38,
-9,
1,
60,
-8,
-43,
-53,
0,
64,
-79,
-8,
48,
8,
-12,
-27,
27,
-12,
9,
62,
22,
-25,
-7,
-41,
69,
10,
-26,
-13,
-43,
-21,
-43,
-70,
-1,
61,
29,
-25,
-51,
-22,
-42,
8,
-1,
14,
-2,
-32,
13,
47,
34,
56,
6,
-30,
-52,
32,
-13,
-20,
-51,
41,
13,
-47,
-44,
31,
-7,
2,
10,
24,
40,
42,
-2,
35,
-23,
-15,
-26,
-3,
-14,
3,
15,
24,
-17,
-14,
-9,
32,
32,
-50,
6,
-10,
22,
6,
61,
-29,
-25,
24,
-3,
55,
6,
-5,
-7,
-37,
33,
-15,
1,
-76,
43,
19,
-26,
53,
-30,
31,
16,
-6,
-25,
-53,
25,
-53,
-34,
-46,
72,
-8,
-10,
-14,
33,
39,
59,
40,
14,
-8,
36,
-44,
-49,
28,
25,
8,
0,
-22,
-9,
20,
-8,
39,
-21,
15,
4,
-65,
30,
-2,
-6,
-20,
-19,
16,
-57,
-2,
40,
-13,
-1,
10,
27,
17,
11,
-31,
13,
-61,
-43,
20,
29,
-18,
-8,
60,
-22,
45,
4,
89,
-1,
49,
-6,
-11,
53,
46,
-42,
7,
25,
21,
-36,
-12,
12,
-21,
-49,
-1,
-29,
71,
-35,
-38,
-59,
-27,
1,
-26,
-11,
43,
27,
-40,
-74,
23,
26,
19,
-19,
31,
-11,
-34,
-39,
-24,
58,
59,
-28,
-16,
23,
-17,
11,
-63,
24,
-49,
41,
26,
-31,
-41,
18,
32,
0,
-19,
-17,
-2,
-22,
38,
-24,
-25,
-11,
-34,
-1,
-10,
17,
-19,
23,
17,
10,
-43,
78,
35,
-10,
21,
-27,
1,
52,
-32,
-31,
0,
55,
-39,
-26,
-32,
-19,
-6,
-29,
-42,
-29,
-39,
-37,
47,
-6,
10,
30,
-1,
9,
27,
9,
27,
49,
-5,
24,
-17,
53,
-8,
-41,
20,
-1,
18,
-19,
21,
-42,
0,
18,
42,
3,
-9,
-5,
-9,
-7,
-6,
-14,
13,
-26,
31,
23,
-36,
55,
-13,
31,
-1,
3,
5,
7,
64,
15,
48,
-5,
45,
-50,
-58,
24,
24,
-24,
-17,
15,
41,
17,
8,
-37,
-74,
-30,
-59,
-16,
10,
39,
34,
-6,
27,
2,
-13,
-22,
8,
-7,
32,
-47,
-16,
28,
-50,
-22,
-1,
-55,
-34,
-26,
-39,
51,
14,
31,
22,
-34,
-11,
-20,
48,
3,
-17,
-32,
37,
-43,
-12,
-13,
37,
10,
-6,
-2,
98,
16,
-24,
-46,
7,
-76,
-15,
21,
20,
47,
-61,
22,
19,
37,
-42,
17,
-55,
-26,
-21,
-32,
-8,
8,
0,
-30,
-53,
-15,
-15,
49,
18,
-7,
13,
-24,
-67,
-16,
23,
40,
14,
-40,
39,
-3,
-3,
23,
-19,
22,
-28,
-5,
-21,
-48,
19,
11,
-15,
10,
2,
-52,
-38,
-3,
-3,
18,
25,
0,
30,
17,
8,
-8,
-43,
-34,
57,
9,
-30,
26,
53,
7,
-33,
-12,
-10,
-17,
-31,
-39,
64,
60,
16,
-34,
0,
-26,
-15,
36,
31,
61,
36,
40,
32,
-48,
12,
-5,
-32,
-11,
-8,
16,
31,
12,
15,
-17,
-68,
20,
1,
54,
32,
-44,
15,
-21,
18,
-23,
12,
25,
18,
2,
-42,
-14,
-50,
-6,
37,
-18,
26,
-39,
-10,
15,
-29,
-80,
3,
-57,
-71,
-34,
24,
-77,
-28,
14,
-56,
2,
-40,
-30,
4,
20,
-6,
-47,
34,
-26,
-30,
-18,
8,
26,
11,
-70,
-9,
0,
-4,
48,
-23,
-26,
39,
19,
-62,
-46,
-68,
-43,
15,
-2,
13,
8,
-12,
-2,
-26,
22,
-59,
27,
-18,
11,
41,
22,
107,
-23,
12,
-16,
-28,
11,
0,
22,
-11,
15,
-26,
13,
19,
-47,
57,
31,
-12,
37,
-19,
15,
25,
21,
-45,
-1,
-19,
64,
-16,
35,
25,
54,
36,
36,
-36,
22,
-43,
9,
-10,
7,
69,
6,
7,
-16,
-39,
-73,
-16,
-3,
-14,
49,
-53,
61,
-47,
11,
-20,
-3,
-27,
27,
-52,
28,
17,
-2,
15,
9,
31,
-31,
29,
38,
-14,
29,
-53,
-27,
-12,
-23,
20,
-53,
-64,
-14,
-6,
-12,
-57,
44,
46,
93,
-16,
18,
20,
-7,
-30,
8,
-29,
28,
4,
-49,
23,
8,
42,
40,
-28,
-10,
-27,
53,
46,
-48,
-12,
41,
4,
14,
-62,
-6,
-36,
-25,
11,
-4,
-26,
-24,
23,
0,
-33,
6,
1,
0,
-4,
-42,
-12,
-38,
13,
-64,
40,
-28,
-4,
-29,
-23,
28,
-48,
71,
-23,
-62,
57,
-40,
-15,
66,
4,
-41,
29,
-11,
-5,
0,
-61,
26,
0,
-14,
4,
34,
41,
5,
75,
7,
-46,
-30,
0,
21,
-19,
-26,
40,
-23,
-37,
26,
7,
-63,
-11,
-36,
50,
3,
10,
-5,
-10,
24,
29,
-24,
-34,
-25,
79,
47,
-10,
-39,
-22,
-34,
-18,
-70,
11,
-38,
-21,
-43,
-18,
-25,
-11,
31,
-43,
-11,
0,
7,
5,
-12,
6,
9,
-1,
17,
14,
35,
-36,
-18,
-15,
25,
-7,
7,
-15,
-46,
38,
-13,
20,
51,
33,
17,
-21,
17,
-31,
-57,
48,
12,
42,
-29,
16,
-6,
18,
12,
-74,
-31,
1,
-40,
5,
-63,
77,
-2,
-31,
-3,
0,
-16,
-10,
16,
-34,
10,
-42,
-6,
-39,
22,
-24,
44,
13,
16,
15,
-10,
22,
50,
-4,
16,
10,
-22,
-22,
-5,
-8,
-44,
-15,
36,
-15,
4,
31,
7,
-11,
25,
-73,
11,
-2,
21,
0,
-16,
67,
-64,
0,
15,
-42,
-16,
51,
2,
15,
10,
37,
44,
18,
-14,
-1,
-40,
-38,
-8,
-24,
-8,
10,
43,
-8,
-49,
3,
-30,
20,
4,
-19,
-39,
24,
-17,
-30,
-58,
-46,
-31,
17,
2,
50,
-2,
18,
-5,
-33,
37,
-4,
24,
-14,
44,
-70,
33,
14,
9,
38,
8,
-40,
-60,
60,
-25,
5,
-3,
13,
14,
22,
-15,
20,
16,
33,
-28,
40,
73,
20,
23,
-27,
-6,
-27,
-17,
-18,
41,
-2,
39,
32,
71,
-18,
62,
17,
-39,
11,
-5,
-62,
-15,
-6,
-7,
43,
17,
25,
-23,
1,
34,
-5,
-13,
36,
10,
68,
10,
-12,
-38,
-22,
32,
-51,
41,
59,
-7,
-47,
-31,
-32,
-24,
-39,
-60,
57,
-33,
0,
-20,
71,
-25,
2,
7,
-19,
-28,
-53,
45,
14,
35,
-6,
9,
0,
49,
41,
-16,
31,
0,
-33,
34
] |
Long, J.
Gustav Pfeffer died intestate; leaving a brother and sister, his heirs at law. His estate consisted of real estate valued at $6,000, and personal estate valued at about $11,000, all situate in the city of Detroit. Frederick Zimmer was appointed administrator, April 5, 1893. Commissioners on claims being appointed, claims of about $6,300 were presented for allowance against the estate. The administrator contested these claims, and employed Mr. Noah, an attorney of Detroit, as attorney for the estate in the matter. The commissioners allowed a por tion of the claims, and disallowed others, and appeals were taken to the circuit court by the claimants. Mr. Noah notified the heirs at law of these appeals, and stated that he was an important witness in the case for them, and advised the employment of other counsel. Mr. James H. Pound, of Detroit, was then employed by them, and he defended the cases in the circuit court for the heirs. Mr. Noah was present in court during the time of these trials, and was called as a witness, and testified, in behalf of the estate. After these cases were disposed of, the commissioners on claims presented their account for services to the judge of probate, and were allowed $75 each, which the administrator paid. The administrator then presented his final account for settlement; showing an indebtedness to Mr. Noah; for services, of $900, and to himself, as general and special administrator, $600. Deducting these and other accounts, it left a balance in his hands of $1,042.60. This settlement of final account was heard before Judge Carpenter, sitting as probate judge, and allowed as charged. From this decree Mary Loeser, one of the heirs at law, appealed to the circuit court for Wayne county.
The appeal came on to be heard in the circuit court before Judge Hosmer, and counsel for appellant stated that but three items of the account would be contested, viz.: The compensation allowed the administrator, the amount allowed for services of the attorney of the administrator, and the amount allowed for services of the commissioners on claims. Counsel for the administrator objected to the appeal being tried before a jury, claiming that the matters in dispute were not proper for the consideration of a jury. This was overruled, the court saying that he would treat the verdict of the jury as advisory. The jury rendered a verdict in the case by which they found that the estate owed to the attorney, Mr. Noah, the sum of $500, and to the two commissioners on claims $75. The court also made a finding in which it is stated that Mr. Zimmer, the administrator, performed no services to the estate which, would come under the term “extraordinary,” and fixed his compensation at $300. The court further found that the administrator, being allowed credit for all charges and expenditures against the estate which he was entitled to, and charged with what he admits he should be charged, should pay over to the estate the sum of $2,017.55. On motion for new trial this sum was reduced to $1,781.28; so that the only questions here relate to the compensation to be allowed to the administrator, attorney, and commissioners.
It is contended that the court was in error in calling a jury in the case, and submitting the question to them as to the compensation to be allowed for attorney’s services, and the services of the commissioners on claims. The court stated to the jury the questions they were to.pass upon. He said:
‘ ‘ I am a little in doubt as to the province of the court and the province of the jury in this particular case; but, at least, your verdict, if not binding upon the court, may be advisory, both as to the value of Mr. Noah’s services, and as to the value of the services of the commissioners on claims.”
The court then framed the following questions for the jury to answer: “(1) What is the value of Mr. Noah’s services to the estate ? (2) What are the services of the commissioners on claims reasonably worth?” The court, in submitting these claims, stated fairly what the testimony tended to show. As we have seen, the court reserved the question of the compensation of the administrator, and made a finding thereon without that question going to the jury.
In Gott v. Culp, 45 Mich. 265, it was held that certain matters in a guardian’s account could not well be determined by a jury; and the same rule would apply to accounts of administrators. The allowance or disallowance of matters which are discretionary with the court could not be so submitted, and neither could a claim for extraordinary services. Wisner v. Mabley's Estate, 70 Mich. 271. But it appears in this case that the court, in submitting the questions of fact to the jury, stated that the verdict would be at least advisory. There is nothing in this record to indicate that the verdict was not satisfactory to the court, or that the court did not receive it as advisory merely.
The administrator had included in his final account moneys due Mr. Noah for his services as an attorney. The testimony was conflicting, not only as to the extent of the services rendered, but also as to their value. Several attorneys were called to testify in the case -as to such value, and they were not agreed as to the value. It became a question of fact for determination in the case. The administrator had the right, in the discharge of his trust, and in this instance it was his duty, to employ counsel in the litigation which was brought upon the estate.
The court found that the administrator performed no services which would come under the term ‘ ‘ extraordinary,” and, we think, very properly, under the facts shown.
While the statute (3 How. Stat. § 9023) provides the compensation to the commissioners on claims, yet it appears that the court disposed of that question as he did of the attorney fees, under the evidence given; taking the verdict of the jury as advisory thereon.
We see no reason for disturbing the judgment below. That judgment is affirmed.
The other Justices concurred. | [
7,
14,
74,
-17,
-9,
6,
16,
-20,
-10,
-51,
-13,
-52,
54,
46,
-62,
5,
1,
6,
-26,
-23,
-5,
-31,
-48,
11,
-12,
-3,
12,
-22,
2,
-37,
-22,
-13,
-15,
19,
11,
46,
-1,
-62,
26,
-28,
28,
-48,
-2,
-15,
-37,
19,
-4,
-30,
49,
-43,
-49,
32,
18,
18,
29,
-57,
12,
8,
-28,
-21,
-40,
-22,
-14,
-20,
3,
24,
-17,
-11,
0,
5,
36,
19,
23,
56,
22,
15,
19,
-55,
18,
-6,
-15,
-50,
0,
-7,
-31,
0,
10,
-54,
8,
21,
-54,
28,
16,
24,
25,
26,
11,
50,
-19,
5,
-6,
-25,
-27,
10,
0,
13,
-16,
27,
-3,
-11,
-20,
19,
61,
-9,
24,
13,
-2,
6,
17,
10,
-1,
-31,
14,
-36,
12,
70,
-4,
14,
31,
-1,
65,
40,
-29,
-9,
-34,
39,
-4,
-7,
26,
39,
20,
-12,
-21,
-28,
-20,
-27,
-11,
-22,
16,
-38,
-30,
9,
30,
11,
26,
-13,
18,
-35,
37,
22,
3,
-44,
1,
2,
-47,
-27,
29,
-22,
73,
-2,
10,
30,
-15,
-33,
4,
7,
12,
13,
-34,
52,
-22,
25,
14,
-19,
-9,
-84,
8,
-11,
19,
-14,
48,
-32,
-12,
4,
-34,
5,
25,
5,
2,
19,
-24,
-24,
-9,
11,
26,
53,
-31,
-28,
10,
-74,
20,
4,
10,
7,
-33,
-22,
-16,
-24,
-3,
-7,
-1,
13,
-2,
-2,
-15,
-31,
-5,
-43,
-17,
-44,
-2,
-9,
29,
46,
-7,
0,
-16,
28,
-62,
-1,
-22,
1,
17,
-3,
-28,
18,
-23,
15,
-22,
29,
-1,
-27,
-5,
30,
-22,
5,
-67,
15,
-6,
-15,
-40,
33,
3,
48,
27,
10,
3,
-37,
27,
-18,
51,
-36,
51,
-2,
-3,
-14,
-24,
11,
17,
-18,
-17,
-22,
-54,
5,
19,
32,
-14,
-15,
-49,
20,
12,
15,
28,
-35,
34,
-31,
10,
0,
68,
-10,
-51,
98,
-33,
-3,
29,
-10,
-40,
-44,
7,
15,
1,
42,
-25,
17,
56,
17,
0,
-2,
14,
8,
23,
2,
-57,
22,
-43,
14,
-10,
26,
-9,
23,
-7,
-45,
37,
-26,
-18,
-11,
22,
39,
-14,
-33,
14,
7,
35,
-19,
-8,
-36,
64,
-28,
44,
-10,
-25,
-12,
1,
21,
-34,
39,
38,
-11,
-63,
40,
25,
38,
5,
51,
-16,
-26,
-40,
-8,
19,
-32,
21,
20,
-34,
9,
-15,
35,
27,
-22,
11,
33,
47,
25,
-19,
57,
26,
14,
3,
22,
-24,
16,
-20,
21,
-13,
3,
22,
7,
38,
9,
-78,
-7,
6,
40,
16,
15,
4,
4,
-24,
-53,
18,
-14,
43,
-39,
52,
-33,
18,
1,
23,
-26,
16,
3,
46,
74,
-21,
-3,
41,
-49,
47,
32,
21,
32,
21,
13,
-18,
-38,
48,
30,
-60,
7,
-17,
13,
7,
0,
45,
38,
19,
44,
-69,
12,
-4,
10,
31,
9,
-22,
67,
-30,
34,
-8,
-13,
19,
2,
-9,
0,
7,
-29,
-45,
14,
1,
31,
55,
32,
-71,
5,
-25,
-72,
-3,
-23,
-16,
-56,
0,
30,
8,
15,
-4,
26,
0,
-22,
10,
-46,
-19,
-46,
-8,
-22,
-36,
10,
1,
-29,
-15,
47,
59,
-43,
16,
-11,
39,
34,
21,
-42,
-4,
-44,
-2,
-28,
8,
-51,
-16,
70,
-1,
79,
53,
-37,
29,
-10,
-2,
-21,
-30,
66,
23,
-13,
42,
25,
27,
-16,
-41,
-51,
-50,
-34,
-1,
-35,
-30,
22,
-8,
-35,
-23,
-15,
30,
24,
0,
40,
-4,
47,
44,
-48,
34,
-50,
20,
14,
-46,
15,
33,
-30,
69,
-11,
27,
-14,
-12,
-14,
5,
-56,
-7,
-4,
18,
-32,
12,
19,
51,
0,
-16,
24,
-4,
-41,
23,
-45,
-26,
-27,
25,
-24,
19,
50,
25,
3,
-10,
6,
53,
50,
-33,
31,
13,
-44,
8,
35,
21,
-39,
-1,
-49,
-3,
-20,
-35,
-10,
-29,
47,
24,
-15,
17,
34,
0,
-28,
15,
56,
-4,
-58,
44,
46,
-20,
-13,
42,
-15,
-28,
-13,
36,
-66,
-56,
40,
-6,
-49,
-31,
24,
-3,
45,
29,
16,
-2,
-3,
-17,
15,
36,
-4,
-10,
-2,
-11,
-76,
12,
-10,
15,
-13,
22,
-13,
-13,
-15,
24,
-29,
13,
-11,
41,
31,
-11,
10,
-24,
2,
34,
-19,
14,
-34,
6,
14,
8,
7,
-18,
-32,
-5,
11,
10,
31,
14,
7,
-6,
92,
19,
21,
-27,
6,
-26,
-4,
-23,
9,
18,
-55,
38,
62,
24,
27,
25,
-3,
3,
47,
11,
19,
-60,
12,
24,
-1,
-36,
-77,
11,
-28,
16,
-15,
-25,
-9,
23,
-44,
37,
-15,
-5,
-47,
-55,
-20,
-8,
-20,
19,
-27,
8,
26,
12,
-8,
-14,
-30,
-24,
-12,
-19,
-22,
-62,
23,
24,
-44,
-2,
-9,
-3,
-19,
2,
13,
-3,
-28,
8,
31,
27,
22,
42,
-23,
-13,
0,
-17,
24,
-43,
-4,
-45,
15,
-36,
-2,
-10,
69,
-32,
-1,
-51,
46,
-18,
-38,
37,
-48,
-25,
-1,
20,
-28,
-13,
59,
2,
11,
-11,
-4,
33,
-4,
39,
28,
-37,
-54,
1,
-10,
-31,
9,
37,
-10,
30,
-16,
9,
-19,
25,
27,
16,
-12,
-11,
61,
-16,
50,
-35,
-20,
1,
-38,
-69,
-8,
-3,
-17,
-28,
40,
-12,
-22,
41,
-8,
-70,
13,
33,
7,
36,
-13,
-14,
-41,
-32,
45,
1,
-5,
-9,
31,
-26,
-28,
1,
-17,
-11,
19,
-10,
2,
-33,
8,
-34,
19,
-12,
-18,
-32,
14,
-28,
-23,
46,
-18,
1,
-35,
7,
-2,
-1,
-26,
-28,
20,
-40,
-14,
-3,
8,
-5,
19,
-67,
-58,
-7,
-2,
3,
7,
-20,
-40,
-18,
7,
-25,
-18,
-15,
24,
73,
-31,
-57,
27,
26,
-17,
-42,
-18,
-12,
-21,
30,
1,
56,
36,
4,
-16,
-17,
-49,
-6,
23,
13,
20,
-20,
0,
12,
0,
-24,
-17,
-38,
8,
18,
16,
-34,
9,
-27,
11,
-22,
-28,
-10,
-28,
45,
-15,
-19,
38,
32,
-9,
-6,
-16,
34,
4,
-7,
-38,
-27,
-21,
33,
9,
4,
-5,
31,
67,
69,
-56,
7,
30,
36,
13,
30,
43,
-6,
12,
16,
-46,
-29,
9,
-28,
-19,
32,
8,
44,
-28,
-11,
-15,
16,
46,
-6,
1,
-46,
-20,
28,
-69,
-1,
-42,
-14,
-24,
-13,
-42,
5,
55,
5,
-7,
-2,
-6,
-62,
5,
6,
22,
6,
2,
18,
2,
21,
32,
-57,
1,
15,
26,
38,
37,
48,
-4,
0,
-3,
-20,
30,
-9,
43,
-100,
39,
-38,
23,
39,
31,
19,
-16,
1,
-61,
-12,
22
] |
Moore, J.
In June, 1896, plaintiff commenced this suit to recover damages for injuries received by him in July, 1890. The circuit judge directed a verdict for the defendant. Plaintiff brings the case here by writ of error.
Plaintiff had been in the employ of defendant for some years. A few weeks before the accident, the workshops of defendant were destroyed by fire. The upper part of a tall chimney, cased with iron and lined with fire brick, fell over, leaving 20 or 30 feet standing. The plaintiff was employed about the yard, gathering scrap iron, when he was requested by the foreman to bring a ladder to where the foreman was at the gas generator, which was a brick structure near the chimney, and against which a ladder was standing. The plaintiff procured a ladder, and, going part of the way up the ladder which was leaning against the gas generator, attempted to hand the one he had brought to the foreman, when a brick fell, presumably from the top of the chimney, and struck him on the head and in the face. The witnesses are all agreed that no bricks were visible to any one at the top of the chimney, or that any one knew any of them were loose or in danger of falling. There is nothing to indicate that plaintiff did not have all the knowledge of any danger that any one possessed. Without going into the testimony in detail, it is sufficient to say that the record does not disclose a cause of action on the part of the plaintiff against the defendant.
Judgment is affirmed.
The other Justices concurred. | [
-37,
-20,
-12,
1,
35,
31,
18,
2,
69,
5,
43,
8,
51,
-29,
1,
-28,
-25,
12,
11,
-22,
55,
-23,
6,
-46,
-12,
-30,
-27,
-42,
-27,
54,
12,
-2,
-16,
-16,
-55,
6,
-7,
22,
-24,
-18,
5,
35,
42,
-51,
34,
-18,
15,
10,
34,
15,
16,
-32,
89,
-30,
-17,
-32,
10,
54,
-16,
-22,
19,
-3,
23,
4,
38,
10,
8,
-29,
-36,
56,
-34,
33,
19,
-44,
-52,
-32,
-14,
24,
-57,
-7,
-36,
10,
22,
-19,
-5,
25,
-22,
19,
-57,
19,
-40,
-10,
-24,
63,
-32,
2,
-23,
34,
-33,
51,
8,
40,
-39,
-11,
-16,
-13,
-42,
-50,
-32,
26,
-53,
23,
-2,
25,
7,
1,
26,
13,
-12,
4,
17,
0,
7,
-27,
-19,
6,
-1,
-21,
2,
-9,
-24,
29,
-16,
42,
-41,
-27,
32,
15,
-25,
-29,
7,
-30,
-12,
17,
-46,
11,
-18,
12,
-69,
-37,
-15,
6,
-6,
-22,
-11,
-3,
6,
-14,
53,
1,
40,
18,
2,
31,
-26,
-26,
-6,
-36,
-27,
-29,
-25,
-18,
-12,
-39,
56,
22,
7,
-41,
-29,
31,
16,
-22,
6,
19,
-12,
-25,
-17,
27,
29,
24,
48,
-1,
-41,
7,
-47,
-1,
14,
7,
41,
-51,
0,
2,
2,
-64,
41,
14,
21,
11,
46,
-3,
-7,
34,
-14,
-26,
12,
32,
-27,
-34,
-20,
-28,
-36,
9,
-10,
31,
-67,
-62,
-36,
0,
66,
0,
-26,
-8,
29,
-15,
35,
-20,
17,
22,
36,
-40,
-18,
9,
-35,
-2,
24,
-13,
-9,
4,
1,
31,
-5,
39,
9,
-4,
21,
-33,
8,
15,
12,
-24,
8,
13,
-7,
-8,
77,
-9,
-5,
16,
-24,
28,
-28,
15,
54,
21,
-68,
-10,
7,
39,
-7,
-19,
33,
16,
-71,
-17,
3,
12,
28,
5,
-47,
-20,
-7,
-25,
4,
-19,
30,
42,
38,
-25,
-20,
-33,
1,
-49,
-28,
-49,
58,
19,
13,
-50,
-5,
8,
-18,
11,
-3,
7,
15,
16,
-7,
35,
-31,
-21,
-2,
25,
-56,
-37,
7,
-17,
23,
7,
-10,
31,
-9,
22,
43,
40,
-29,
68,
41,
3,
-12,
-9,
3,
33,
0,
11,
-22,
43,
11,
-28,
13,
-30,
-22,
-27,
35,
-24,
9,
19,
24,
-17,
-7,
91,
66,
-13,
8,
55,
18,
-32,
-16,
-30,
-39,
0,
-3,
-24,
24,
-34,
28,
-19,
-4,
13,
-25,
72,
19,
3,
17,
-62,
4,
-19,
43,
-9,
-32,
1,
-64,
-13,
48,
31,
8,
-11,
13,
-34,
27,
22,
32,
-7,
-15,
-59,
-60,
-20,
-59,
13,
32,
-27,
15,
34,
3,
-18,
0,
-34,
6,
-17,
39,
40,
38,
-14,
24,
-18,
22,
-23,
28,
-19,
-21,
-17,
-4,
6,
25,
-4,
-12,
-45,
-19,
8,
-39,
3,
-52,
-14,
-16,
-20,
41,
2,
-27,
2,
55,
0,
-8,
35,
35,
9,
19,
-24,
-12,
-19,
49,
-26,
18,
1,
-6,
15,
-27,
18,
16,
-45,
13,
-5,
-14,
1,
2,
-23,
-10,
26,
3,
3,
-57,
7,
-3,
79,
20,
-12,
-32,
-24,
42,
40,
-4,
-30,
14,
18,
16,
-55,
-40,
51,
-39,
9,
-48,
-13,
-50,
7,
-21,
-67,
18,
-15,
45,
9,
14,
38,
-56,
-42,
19,
-25,
-21,
-1,
-8,
49,
9,
-5,
-27,
-60,
-1,
20,
-15,
5,
-25,
9,
6,
-54,
7,
-36,
-2,
35,
13,
36,
9,
7,
-8,
-21,
-24,
23,
47,
-4,
-12,
9,
-4,
55,
2,
74,
24,
-8,
-23,
-3,
-12,
25,
35,
18,
12,
-9,
15,
-55,
26,
19,
41,
11,
20,
30,
32,
-23,
-23,
31,
10,
11,
-35,
11,
-32,
23,
-8,
-5,
-15,
-4,
3,
-13,
9,
-34,
-11,
7,
-23,
19,
-41,
14,
9,
-2,
-18,
-42,
-78,
35,
5,
1,
-10,
-19,
-37,
-17,
24,
27,
17,
-35,
10,
-1,
25,
11,
-47,
-21,
27,
19,
-1,
-14,
37,
-21,
19,
-21,
-66,
14,
10,
-23,
-4,
-3,
-50,
-28,
-70,
43,
-48,
7,
7,
-31,
29,
17,
-15,
-25,
0,
1,
0,
-26,
2,
3,
34,
45,
-24,
-2,
18,
-13,
12,
27,
-20,
-32,
39,
0,
-28,
-24,
-3,
-7,
0,
20,
-28,
27,
6,
-3,
-29,
-29,
7,
-2,
46,
-12,
-6,
-28,
-47,
33,
22,
-5,
27,
-28,
33,
-6,
23,
-29,
22,
24,
-12,
-20,
-41,
11,
16,
27,
13,
71,
32,
-56,
31,
-39,
-45,
-33,
5,
63,
-1,
-1,
50,
-22,
35,
-20,
-24,
30,
28,
41,
15,
7,
15,
-61,
-39,
-49,
48,
-50,
49,
4,
-41,
-4,
17,
49,
-34,
-31,
11,
-24,
-51,
43,
12,
-1,
-2,
-3,
-10,
-2,
26,
-22,
-4,
1,
-12,
10,
76,
-18,
11,
-26,
-7,
-2,
32,
-31,
57,
-19,
14,
3,
-25,
4,
51,
-40,
71,
-52,
-6,
5,
23,
-56,
-12,
-25,
9,
46,
14,
-18,
-6,
34,
0,
-14,
65,
-23,
-16,
-35,
-9,
21,
-10,
-63,
22,
-10,
46,
6,
-6,
30,
7,
-6,
-24,
-19,
3,
-1,
-6,
-6,
-22,
-18,
14,
-16,
15,
-7,
32,
33,
21,
-16,
44,
-1,
3,
-10,
-19,
20,
-29,
-10,
40,
52,
-14,
46,
-21,
-12,
51,
-56,
-13,
-15,
11,
-20,
45,
-42,
-15,
-1,
51,
-3,
-8,
-23,
-21,
12,
-4,
8,
-11,
26,
52,
-50,
-70,
12,
-47,
43,
3,
-4,
29,
26,
-36,
-53,
6,
-7,
29,
4,
22,
-19,
-57,
15,
29,
-21,
-23,
30,
0,
-39,
37,
5,
-45,
-34,
-35,
14,
-29,
-9,
71,
17,
19,
-12,
8,
59,
-30,
-9,
-19,
-41,
38,
74,
26,
-11,
65,
44,
-2,
2,
-35,
14,
-36,
-39,
-22,
10,
41,
47,
38,
-30,
-18,
-67,
-11,
-8,
-2,
-6,
-29,
-11,
-3,
79,
0,
-8,
7,
37,
-3,
8,
14,
0,
1,
49,
-7,
30,
-12,
22,
7,
-19,
52,
3,
33,
-1,
11,
-67,
-10,
-12,
13,
2,
21,
32,
-25,
-45,
6,
-21,
-23,
36,
0,
26,
-26,
41,
-48,
-15,
-89,
11,
-45,
-14,
-4,
16,
-4,
15,
27,
32,
30,
-14,
-30,
-73,
24,
-16,
36,
-36,
6,
-9,
23,
1,
-7,
-18,
8,
-33,
-12,
38,
7,
-55,
-4,
-55,
9,
-18,
-22,
-6,
17,
24,
3,
-36,
-63,
-1,
0,
22,
-12,
-13,
0,
6,
52,
16,
31,
75,
5,
-37,
-21,
32,
35,
12,
8,
28,
-91,
10,
32,
-20,
90,
12,
33,
15
] |
Long, J.
Plaintiff is a superannuated Methodist minister. Defendant is also a Methodist minister, but prior to 1895 had engaged in the publishing business, and had put two books of his own upon the market, one of them entitled ‘ ‘ Touching Incidents. ” In November, 1895, plaintiff called upon defendant, and explained to him his plan to produce a book containing about 40 or 50 condensed sketches of men and women who have lived useful, Christian lives. These sketches were mostly to be abridgments of biographies, giving credit to the authors, only a few of them to be original matter written by plaintiff. He desired the defendant to publish this boob, and the defendant, shortly after that time, made two offers, the last of which is the following:
“I will buy the manuscript of you sufficient to make about two hundred pages. The balance we could prepare ourselves. And I will get the book out on my own responsibility, and will give you for the same one thousand copies of the children’s edition of Touching Incidents, etc., board covers, which, at sixty per cent, off, would be $140; one hundred of the large edition, at sixty per cent, off, would be $40; making a total of $180. If you accept the second offer, would want you to read the proofs from the type. Now, in order to help you along, you could have part of the books soon, or as you find sale for them, and would want you to commence to prepare copy at once.”
This proposition was accepted in writing on January 20, 1896. It was agreed that the plaintiff’s book should be of the same size, style of binding, and make-up as Touching Incidents. It was to sell for $1 per copy, and, if illustrated, at $1.25. On February 21, 1896, plaintiff had completed 29 sketches, which he estimated to be sufficient for 200 pages, and took them to defendant for his inspection. The defendant was about to go out of the city, and, having no place to keep them with safety in his office, plaintiff left only 8 of the sketches with him, taking the rest home. Previous to March 5th, defendant had paid plaintiff $95.52 in books, and on that day wrote plaintiff, asking what he would take to release him from the contract. They were unable to agree, and arbitrators were thereafter agreed upon, and certain proceedings were had, which will be treated of later. The book has never been published. Plaintiff brought this action to recover damages which he claims to have sustained.
The first count avers the contract, the offer of plaintiff to perform his part, the breach by defendant, and claim •of damages, which, it is alleged, consist of the labor and services of plaintiff as a writer for 3¶ months, at $150 per month, and the price and value of the books and material bought by plaintiff, and other incidental expenses incurred by him in fulfilling the contract, to the sum of $100. Damages are also claimed under this count for the difference between the cost of 1,000 books plaintiff agreed to take and buy under the contract and the price at which the plaintiff could obtain the publication of his book by other publishers, and also “for money laid out and expended in the conduct of two arbitrations in plaintiff’s attempt to recover his damages resulting from defendant’s breach of said contract.” The second count avers:
‘ ‘ And for that whereas, the said defendant, on November 21, 1896, at the city of Grand Rapids, said county, was indebted to the plaintiff in the sum of $300 upon and by virtue of an award there made by G. A. Buell, O. R. Wilmarth, J. S. Valentine, C. A. Shackleton, and W. G. Beckwith, arbitrators chosen by and between the parties, on a submission in writing theretofore made on, to wit, 'April 13, 1896, by the plaintiff and the defendant, to the award and determination of the said arbitrators, concerning certain matters in difference then and there depending between the plaintiff and the defendant, upon which said reference the said arbitrators then and there awarded that the defendant should pay the plaintiff the said sum of money, to wit, $300.”
To these are added the common counts in assumpsit. The defendant pleaded the general issue, with the following notice:
“Sir: Take notice that, on the trial of the above-entitled cause, the defendant will give in evidence in his defense that on, to wit, the 20th day of March, A. D. 1896, the plaintiff and defendant, in writing, mutually submitted the demands set forth in the plaintiff’s declara tion to the arbitration of George B. Kulp, O. E. Wight-man, James N. Dayton, John M. Richens, and J. J. Kinsey, which submission was never revoked; that on the 20th day of March, 1896, at the city of Grand Rapids, county of Kent, and State of Michigan, said George B. Kulp, O. E. Wightman, James N. Dayton, John M. Richens, and J. J. Kinsey made and published their award, by which they declare that the said plaintiff should retain the value of all books received by him from said defendant at that date, and that he be given possession of the manuscript then in the hands of said defendant; that, when the award of said arbitration was announced, said plaintiff then and there demanded of said defendant that he comply with the declaration in said award, and deliver to him the manuscript in question, with which demand said defendant did then and there comply, and gave and delivered to said plaintiff the said manuscript, and settled with him in accordance with the award of said arbitration; that the said plaintiff received the said manuscript in full satisfaction and discharge of the said sevex’al premises mentioned in plaintiff’s declaration, and of all the damages by the said plaintiff sustained by reason of the non-performance thereof.”
The cause came on for tx’ial before a jury in the Kent circuit court. After the opening statement by plaintiff’s counsel, and before any testimony was taken, he was asked by counsel for defendant:
“You make reference to two arbitrations, which you say. these parties had taken steps to set aside. Do you claim anything under either of these arbitrations ?
“A. We do not care to announce ourselves on the thing until the proofs are in. We may or may not. It depends on the evidence in the case. * . * *
“ The Court: I think, if those two counts are allowed to stand, we are trying two cases in one.”
The motion was therefore granted compelling plaintiff’s counsel to elect upon which count they would proceed, and they elected to proceed upon the first count. This ruling raises the first question presented.
The court was in error in compelling the plaintiff to elect. Upon the face of the declaration two distinct rights of action were alleged, — one upon the contract, and the other upon the award. The second count upon its face purports to disclose a distinct right unconnected with that stated in the other. Assumpsit could have been brought to enforce the award, which is alleged in the second count. The two counts could have been joined. Even upon the supposition that the court was advised by the opening of counsel that the second count was for the same cause of action as stated in the first count, yet we think the court was in error in compelling counsel to elect. One of the objects of inserting two or more counts in one declaration, when in fact there is but one cause of action, is to accommodate the statement of the cause, as far as may be, to the possible state of the proofs to be exhibited -on the trial, or to guard, if possible, against the hazard of the proofs varying materially from the statement of the cause of action, so that, if one or more of the several counts should not be adapted to the evidence, some other of these may be so. The plaintiff has in every case a right to insert in his declaration as many counts (each one being in itself single) as he pleases. It appeared on the trial that the claimed award grew out of the same contract. If the proofs showed that the award was binding between the parties, then the plaintiff could not recover on the contract. If it turned out, however, on the trial, that the award for any reason could not be enforced by either parly, the plaintiff had the right to stand upon his first count. In Mather v. Day, 106 Mich. 371, the trial judge submitted the question of the validity of the award to the jury, with the instruction that, if they found the award binding, they had nothing to do with any matters involved in the controversy covered by the contract. On appeal to this court it was said:
“We think it was proper to submit to the jury, under the circumstances, the questions arising under the submission and award. It is evident from the finding of the jury that they were unable to compute the award from the statement furnished, and therefore disregarded the award entirely, and entered upon the consideration of the general account between the parties.”
A case nearly in point to the question here is Sadler v. Olmstead, 79 Iowa, 121. It appeared that plaintiff in his first count declared upon a contract for hay sold, and sought to recover the contract price. In another count he set up an arbitration and award for the same hay. It was held that the plaintiff had the right to state his cause of action in this way in different counts.
It will be noticed that the defendant, under his plea of thq general issue, gave notice of another submission and award. Upon the trial it was shown that the parties submitted their matters in difference in reference to this contract to arbitration, and that an award was made. Defendant contended that this award had been paid and satisfied; that is, that he had complied with the terms and conditions therein imposed. The award set up by the plaintiff in his declaration was what was called the “second award;” and on the trial the plaintiff offered proofs tending to show that the first award was set aside, and the second submission entered into between the parties, upon which the arbitrators found in his favor the sum of $300. Defendant then offered evidence which, it is claimed, shows that this second award was brought about by compulsion. At the conclusion of the evidence, the court directed the verdict in favor of defendant, saying:
“I am inclined to think that such submission [the second one] cannot be construed as voluntary upon the part of defendant, or as an intentional and binding waiver of the first award; and, if not, I am inclined to think that such award [the first one] would be a good defense to the cause of action sued upon by the plaintiff.”
We think the question whether the second award was obtained by duress was a question of fact for the determination of the jury. It cannot be said that the evidence was so clear upon that question that the court should direct the verdict. If the agreement for the second award was fairly entered into, and the defendant signed it voluntarily, the effect was to waive the first award, and no action would lie upon it, and it could not be set up here as a defense to the plaintiff’s claim under the contract. Rollins v. Townsend, 118 Mass. 224; Burnside v. Potts, 23 Ill. 411; Eastman v. Armstrong, 26 Ill. 216. If the second award was found to be valid, the plaintiff would be entitled to recover the amount of that award. If neither of the awards was valid and binding, the plaintiff would be entitled to recover under his contract whatever his legitimate damages might prove to be.
We think upon a second trial all the matters will be properly disposed of, and that no further discussion of the case is necessary. *
The judgment must be reversed, and a new trial awarded.
The other Justices concurred. | [
0,
-35,
18,
-42,
50,
-29,
55,
-31,
-25,
-13,
-30,
0,
72,
-13,
-12,
-41,
25,
-31,
26,
-13,
27,
-79,
15,
-1,
24,
0,
14,
12,
29,
7,
4,
18,
-12,
-11,
-26,
50,
-24,
-11,
-13,
-29,
49,
-50,
47,
15,
-2,
12,
9,
24,
40,
-15,
15,
-7,
-16,
-40,
-3,
-10,
29,
-16,
35,
-4,
-41,
-1,
49,
-23,
-40,
-10,
-6,
-14,
1,
1,
-9,
-5,
35,
-1,
14,
-48,
-10,
-40,
28,
38,
-6,
0,
13,
-36,
-11,
7,
1,
-77,
5,
-20,
-10,
2,
7,
0,
25,
24,
5,
15,
-23,
34,
2,
0,
-32,
-16,
-70,
27,
-43,
-16,
11,
16,
-34,
-8,
50,
-8,
28,
-60,
-11,
-12,
35,
-4,
-14,
51,
-25,
5,
20,
-2,
12,
0,
-33,
-17,
-7,
31,
-50,
-7,
35,
-15,
27,
-6,
16,
-47,
-26,
-3,
-51,
1,
-49,
-44,
-65,
42,
-101,
-13,
-56,
0,
25,
37,
16,
-35,
-19,
-47,
56,
-6,
19,
-28,
13,
27,
0,
0,
0,
-28,
56,
-8,
-10,
32,
-22,
-24,
-5,
23,
1,
-45,
-2,
-18,
9,
50,
10,
1,
-21,
-41,
0,
18,
4,
78,
-7,
-19,
-27,
-22,
-3,
-2,
-10,
-7,
-13,
-59,
41,
-30,
-18,
25,
25,
9,
-4,
5,
-6,
-50,
-25,
-10,
9,
-35,
-63,
29,
-11,
-25,
-60,
-32,
-12,
-32,
-15,
-9,
-65,
-62,
36,
0,
24,
2,
-69,
71,
7,
-2,
-19,
-1,
-54,
26,
0,
44,
-59,
-32,
-16,
-7,
4,
8,
-11,
-29,
8,
29,
0,
43,
-10,
40,
-18,
2,
-23,
5,
-11,
-19,
14,
23,
-18,
5,
59,
-7,
46,
35,
24,
16,
7,
-29,
-21,
66,
-13,
17,
-3,
-43,
-7,
23,
43,
-21,
-35,
-89,
14,
-28,
-14,
42,
-19,
19,
19,
5,
-12,
-37,
77,
70,
17,
27,
-14,
-13,
11,
-84,
9,
17,
15,
47,
-18,
-50,
15,
-73,
-60,
-23,
-12,
-37,
11,
13,
-33,
-30,
33,
-33,
27,
-1,
-34,
62,
-5,
38,
70,
-24,
-54,
18,
11,
-20,
24,
-76,
-19,
13,
-32,
26,
12,
-13,
21,
0,
-59,
10,
-32,
-22,
12,
-32,
25,
-34,
0,
-69,
23,
15,
-23,
38,
-14,
-32,
-15,
54,
54,
60,
44,
-32,
45,
3,
8,
1,
38,
-1,
-55,
1,
-6,
-45,
-12,
21,
21,
-27,
-14,
86,
0,
-40,
-17,
30,
-21,
-4,
-24,
-64,
-1,
6,
-66,
45,
-7,
22,
-42,
15,
-42,
-10,
12,
9,
34,
1,
26,
1,
-26,
9,
-13,
14,
-10,
4,
1,
77,
-60,
-3,
-19,
-8,
30,
-54,
31,
17,
20,
57,
-7,
-21,
62,
-9,
-18,
35,
16,
-36,
-17,
-23,
37,
-37,
7,
-31,
-26,
1,
-19,
-7,
8,
9,
-15,
54,
32,
28,
-6,
19,
15,
13,
12,
-44,
13,
39,
32,
15,
-17,
-8,
37,
69,
-11,
71,
27,
27,
-23,
8,
35,
-22,
-9,
37,
-18,
8,
10,
-22,
-9,
3,
-40,
-31,
0,
11,
50,
35,
-39,
-22,
-8,
47,
-48,
1,
-29,
-20,
34,
-39,
-13,
10,
36,
14,
-14,
18,
-35,
44,
-5,
-8,
72,
-12,
-3,
-4,
-13,
21,
8,
-57,
60,
11,
28,
-61,
10,
8,
24,
34,
-49,
-6,
9,
38,
-3,
1,
19,
17,
18,
10,
4,
-6,
-26,
-30,
-7,
15,
36,
29,
39,
-41,
49,
-13,
-48,
41,
42,
15,
15,
-4,
20,
26,
24,
41,
16,
-38,
36,
-25,
7,
60,
51,
-35,
57,
39,
-22,
15,
20,
14,
58,
-11,
10,
-2,
15,
-20,
39,
-8,
-19,
19,
-28,
3,
-16,
-20,
28,
-12,
-30,
-21,
9,
-8,
-56,
-33,
18,
-15,
-1,
-5,
0,
-1,
-30,
-12,
87,
-27,
10,
37,
44,
1,
-40,
5,
-35,
-4,
-4,
35,
-47,
-3,
5,
0,
1,
23,
-31,
34,
1,
-14,
5,
-15,
38,
-19,
0,
-28,
53,
-3,
4,
5,
3,
-12,
-23,
-42,
15,
-67,
13,
33,
-9,
15,
23,
40,
-32,
28,
-72,
-7,
0,
-25,
-27,
-12,
-8,
24,
-8,
-11,
39,
25,
22,
3,
-17,
-42,
-32,
15,
-20,
42,
10,
-18,
-51,
4,
-42,
-28,
34,
7,
-23,
6,
47,
-41,
-4,
21,
37,
-8,
-40,
7,
66,
-48,
31,
31,
70,
16,
-13,
45,
0,
-95,
-25,
-30,
21,
-3,
-36,
-3,
-9,
22,
11,
1,
-12,
-39,
-46,
-2,
-64,
30,
29,
-16,
-37,
20,
16,
-49,
19,
22,
-10,
22,
18,
-8,
-12,
10,
-9,
-7,
70,
51,
1,
-14,
4,
29,
31,
24,
-2,
-41,
-22,
7,
-49,
-25,
-6,
33,
3,
-29,
39,
-10,
10,
-24,
-54,
-33,
-17,
28,
-4,
-4,
-36,
-12,
-3,
37,
20,
8,
20,
-32,
-18,
-44,
-16,
-11,
-8,
40,
24,
-13,
2,
7,
10,
-1,
9,
-23,
17,
5,
-45,
-23,
7,
-12,
83,
52,
19,
2,
68,
-1,
-31,
37,
-13,
2,
22,
-27,
72,
6,
-2,
12,
42,
-5,
-66,
-38,
-15,
6,
-3,
-49,
4,
0,
7,
-21,
-56,
-5,
-14,
32,
-23,
13,
-68,
12,
-20,
-19,
-31,
2,
-6,
-40,
-12,
-26,
-5,
-6,
6,
35,
39,
28,
-2,
7,
-18,
-9,
13,
-24,
19,
-29,
-14,
48,
15,
-17,
-19,
-43,
32,
27,
-9,
-1,
49,
-36,
-13,
33,
8,
-60,
10,
-63,
-42,
-53,
-21,
-64,
0,
-88,
63,
-7,
-23,
-29,
-3,
28,
19,
-41,
10,
16,
28,
33,
2,
5,
-8,
-62,
9,
-18,
-10,
-22,
39,
21,
-28,
-41,
-31,
49,
-49,
48,
-37,
2,
-11,
-22,
2,
-53,
2,
9,
20,
-29,
16,
-2,
7,
-22,
38,
7,
39,
55,
69,
1,
-32,
3,
-4,
-1,
20,
-30,
16,
53,
-12,
-11,
4,
33,
-30,
10,
4,
-55,
-37,
35,
11,
51,
37,
-13,
-7,
65,
18,
-33,
0,
-4,
46,
-10,
30,
-56,
-5,
11,
10,
57,
6,
9,
15,
7,
-27,
-24,
-6,
-13,
-63,
52,
-40,
61,
-69,
21,
-27,
23,
-16,
-27,
48,
48,
2,
-24,
-3,
-23,
56,
82,
-22,
-67,
8,
-17,
33,
0,
55,
36,
5,
-37,
11,
-27,
34,
-43,
-66,
-2,
-48,
6,
-16,
21,
-46,
-16,
4,
84,
7,
-29,
47,
-9,
-22,
-40,
2,
-12,
16,
-53,
14,
-20,
-40,
-12,
22,
28,
-4,
-20,
14,
19,
55,
5,
48,
3,
34,
34,
-19,
-7,
42,
-2,
30,
37
] |
Moore, J.
Defendant Smith was in 1892 a resident of the State of New York. Mr. Swarthout was his agent at Saginaw in loaning money. June 17, 1892, during the absence of Mr. Swarthout from the State, Mr. Hudson was in charge of his office, and attended to his business. The complainants, who are from Poland, and are unable to read or write the English language, negotiated a loan from Mr. Hudson; and a mortgage was given upon a lot owned by them to Mr. Smith, for $130. There was paid to complainants at this time $118. The principal was payable, by the terms of the mortgage, in three years. The interest was 8 per cent., payable semi-annually. January 31, 1893, Mr. Swarthout commenced foreclosure proceedings, by advertisement, to foreclose the mortgage. May 6, 1893, the premises were sold to' Mr. Swarthout' for $175.76. July 14, 1894, Mr. Swarthout and his wife deeded the premises to Herman Brandt, for $237.50. Soon after this, Mr. Brandt notified complainants that he was the owner of the premises. The complainants then tendered to Mr. Swarthout and to Mr. Brandt $153.64, and demanded a discharge of this mortgage. Their demand was refused. They filed this bill to have the foreclosure sale set aside, and to have the amount due on the mortgage computed, and offered to pay the amount due, and asked that upon their payment of the same the mortgage be discharged. Upon the hearing, the circuit judge found that the $12 retained at the time the mortgage was made was retained as a payment of interest in advance. He found that there was nothing due upon the mortgage when the foreclosure proceedings were commenced. He also found that the name of one of the mortgagors was “ Tofila,” while she was described in the foreclosure notice as “Julia,” and that defendant Brandt was not an innocent purchaser. He found that the foreclosure sale was void, and directed the deeds from the sheriff to Mr. Swarthout, and from Mr. Swarthout to Mr. Brandt, to be set aside. From this decree, defendants appeal.
There is testimony tending to show that the complainants understood a payment of interest was made in advance, but, upon considering all the testimony, I do not think the fact is established.' The complainants were not at all clear in their testimony, while Mr. Hudson’s testimony was a detailed statement of what occurred, and it is corroborated by the testimony of Mr. Beelack, who came with the complainants to negotiate the loan. It is claimed by them that the $12 was made up of expense for abstract, for recording the mortgage, $3 to Beelack for his services, and $6.50 commission to Mr. Hudson and Mr. Swarthout for examining the property and making the loan.
It is claimed that there are irregularities in making the sale, which avoid it. There is a clause in the mortgage that, if the interest is unpaid for 30 days after it becomes due, the mortgagee may elect to consider the principal due, and that the commencement of proceedings to foreclose shall be sufficient notice of such election. The mortgage also provides for the payment of a reasonable sum as an attorney’s fee in case of foreclosure. Mr. Swarthout testified that he wrote complainant Joseph Zlotoecizski that interest was unpaid, and that, if not paid, he should foreclose. Complainant testified that he never got the notice, and that, one year after the mortgage was made, he went to the office where the mortgage was made, to pay the interest, and found that Mr. Swarthout had moved, and that he made efforts to find him, and could not. No notice was served upon complainants of an election to treat the principal as due, and no notice was contained in the mortgage foreclosure of the intention to elect. When the foreclosure proceedings were commenced, according to the terms of the mortgage, one payment of $5.20 of interest was due and unpaid. The notice of sale stated that there was due $126.41. If the principal was treated as due, this amount was too little. If it was not treated as due, it was more than $100 too much. At the sale, the property was sold upon the theory that there was $140.56 due. To this amount was added an attorney’s fee of $15, printer’s.fee of $14.70, though but $11.03 was paid to the printer, and $3 to the sheriff, and $2.50 for fees of the register of deeds. The land was sold for the aggregate of these amounts, $175.76, to Mr. Swarthout. No money was paid to the sheriff except his fee of $3. The notice stated that the mortgage was made by Joseph Zlotoecizski and Julia, his wife. The testimony disclosed that her name was signed to the mortgage as “Tofila;” and her name was “Tofila,” and “Julia” is not the English equivalent of that name.
As before stated, the complainants do not read English. It does not appear from the record that they had any knowledge of the clause in. the mortgage that the principal could be declared due if an installment of interest remained unpaid for 30 days. It also discloses that, at the time complainants supposed the interest was due, they made an attempt to pay it. Mr. Hudson testified that, when the loan was negotiated, he saw the property, and inquired about its value, and thought it worth $260. The complainants lived in the same city as Mr. Swarthout, and it ought not to have been much trouble to find them. There is evidence tending to show that Mr. Brandt had attempted to buy of the complainants the property covered by the mortgage, which was a lot adjoining his, and failed. Within three days after he learned it could be bought of Mr. Swarthout, he purchased it for upwards of $237; and the fact that, as soon as the complainants learned that it had been sold, they made a tender of more than $153, shows very conclusively that they considered the property worth more than was due on the mortgage. This property was sold without any actual notice to the complainants that the mortgagee had elected to declare the principal sum due, and without any statement in the notice of sale that he had so elected. The proceedings have worked a great injury to the complainants. In relation to a like clause in a mortgage, it was said in Wilcox v. Allen, 36 Mich., at page 169:
“This clause is in the nature of a forfeiture or penalty. Its object is to punish for a willful neglect of a clear duty; and to hold it applicable to, and apply it in, a case where there was an honest dispute, would be harsh and unjust, and contrary to all well-settled equitable principles.”
From what we have already said, it is evident that complainants were not guilty of any willful neglect in not paying what they understood to be due. The amount of interest due and unpaid was but $5.20. Complainants understood that the principal sum would not be due for three years, at least, while there is some testimony that they did not expect it to become due for six years. In Mabie v. Hatinger, 48 Mich. 341, the act of foreclosing for so small an installment of interest was condemned, and characterized as unjust and oppressive. See Louder v. Burch, 47 Mich. 109; Millard v. Truax, 50 Mich., at page 346.
2 How. Stat. § 8500, subd. 1, requires the notice of sale to specify the names of the mortgagors. In this case, one of the mortgagors, whose name was “Tofila,” was described as “Julia.” This is not two different ways of spelling the same name, as was the case in Reading v. Waterman, 46 Mich. 111, but the names are different from each other (see Lee v. Clary, 38 Mich. 223); and we think that stating the name of the mortgagor in the notice to be “Julia,” when the name in fact is “Tofila,” is a fatal defect in the notice.
This is a proceeding that does not commend itself to our sense of justice. As soon as complainants learned that anything had been done to foreclose the mortgage, they made a tender of the full amount due thereon. For the irregularity mentioned, the sale should be set aside, and, upon the payment of the amount.tendered, the mortgage should be discharged. A decree may be entered accordingly, with costs to complainants.
Grant, C. J., Montgomery and Long, JJ., concurred with Moore, J. Hooker, J., concurred in the result. | [
16,
14,
-41,
7,
-4,
13,
35,
-19,
27,
6,
24,
-8,
1,
-9,
46,
0,
-31,
-65,
-25,
-51,
-8,
-69,
-21,
-4,
-23,
39,
-5,
-29,
-4,
-7,
44,
-23,
-28,
39,
14,
-36,
-25,
-14,
43,
-22,
-7,
2,
-7,
34,
-44,
23,
-14,
-34,
9,
-51,
16,
-30,
64,
26,
-18,
-36,
-23,
7,
-38,
6,
27,
-48,
-22,
-6,
-48,
-33,
3,
17,
26,
14,
-8,
-38,
16,
-20,
39,
25,
-29,
9,
-78,
-44,
-18,
-55,
36,
13,
-59,
41,
-11,
-24,
-31,
48,
-48,
78,
2,
12,
5,
15,
39,
80,
15,
44,
8,
5,
-50,
52,
28,
-16,
-23,
-77,
-47,
49,
-22,
0,
61,
37,
-39,
-7,
-28,
21,
14,
-33,
-4,
-22,
-12,
-33,
8,
52,
-27,
-21,
-10,
-11,
-4,
-4,
-47,
21,
-48,
-3,
19,
-20,
11,
-5,
3,
-20,
-31,
-72,
-6,
-5,
-2,
-37,
-3,
17,
-56,
26,
55,
43,
-6,
-25,
-5,
-21,
-16,
-31,
8,
-36,
13,
0,
-62,
37,
-15,
4,
-27,
12,
6,
25,
-21,
-45,
-20,
-33,
27,
-13,
3,
-26,
12,
22,
-2,
-39,
20,
-30,
10,
-13,
29,
33,
21,
-28,
-1,
-39,
-34,
6,
23,
-58,
10,
-10,
-23,
-13,
19,
-21,
6,
-24,
38,
9,
15,
8,
26,
23,
15,
0,
-29,
43,
-42,
7,
16,
-11,
32,
14,
-45,
52,
-60,
-40,
5,
31,
26,
-2,
-13,
9,
-41,
36,
1,
3,
12,
28,
-6,
34,
-26,
4,
12,
-13,
-22,
11,
-61,
17,
-19,
5,
-43,
63,
-58,
66,
-40,
10,
-9,
3,
7,
-15,
-4,
21,
-31,
-19,
36,
-41,
29,
15,
11,
43,
-41,
-36,
46,
41,
-44,
-2,
-51,
14,
-50,
-11,
22,
-35,
6,
14,
26,
36,
72,
25,
-4,
-19,
21,
-2,
1,
24,
47,
15,
-39,
-25,
53,
-22,
-35,
-39,
-17,
-21,
28,
-5,
-8,
-11,
-1,
-2,
48,
-41,
-16,
29,
60,
39,
-24,
-2,
-1,
6,
36,
14,
-38,
-32,
68,
9,
37,
-54,
-59,
-2,
-23,
15,
-37,
-23,
4,
42,
20,
35,
-14,
-24,
0,
22,
-37,
-10,
55,
-4,
1,
4,
-15,
28,
-72,
18,
-24,
29,
31,
6,
11,
33,
5,
33,
42,
-3,
-13,
-52,
-19,
-19,
6,
-36,
21,
11,
11,
30,
-19,
-36,
-13,
7,
-62,
1,
-16,
36,
48,
3,
35,
39,
16,
-24,
3,
-31,
5,
1,
-48,
16,
6,
32,
14,
-31,
-15,
-7,
-83,
-33,
-31,
0,
-40,
-10,
-46,
9,
0,
-32,
6,
28,
62,
-3,
1,
-34,
-6,
6,
32,
12,
35,
-9,
4,
10,
21,
-24,
14,
-11,
10,
16,
4,
6,
-13,
7,
-13,
-28,
46,
4,
-72,
-3,
-50,
23,
47,
38,
24,
42,
44,
26,
-95,
-30,
44,
20,
-19,
-22,
38,
49,
-10,
4,
29,
-32,
1,
-34,
49,
-52,
15,
6,
-18,
30,
1,
16,
-14,
38,
19,
42,
33,
14,
-18,
-16,
0,
-17,
6,
-2,
-30,
20,
1,
-3,
-14,
-15,
-26,
-14,
-18,
-21,
45,
0,
11,
18,
-3,
-1,
-10,
4,
-5,
41,
19,
-6,
37,
-12,
1,
-34,
-11,
-44,
4,
23,
18,
-50,
-26,
75,
-8,
20,
-5,
-3,
41,
38,
-8,
-7,
18,
-38,
26,
43,
11,
66,
13,
-36,
-9,
19,
-5,
-12,
-1,
21,
24,
3,
8,
8,
-48,
41,
1,
55,
27,
6,
34,
-34,
21,
22,
47,
-47,
-13,
-1,
-1,
-6,
-12,
-49,
8,
-17,
2,
13,
-6,
-17,
54,
-41,
32,
-24,
-43,
-28,
-36,
20,
2,
-1,
-43,
-39,
-46,
-24,
-37,
40,
-47,
0,
-28,
-52,
32,
14,
3,
25,
-8,
39,
33,
18,
-7,
18,
9,
-46,
-7,
16,
11,
13,
26,
29,
-68,
-29,
11,
-64,
-22,
0,
23,
24,
13,
-8,
-4,
47,
43,
35,
42,
12,
-29,
-3,
25,
14,
-45,
-44,
-8,
17,
21,
-4,
-23,
37,
12,
-3,
-6,
-2,
0,
-7,
41,
-2,
9,
-28,
-11,
31,
-38,
21,
8,
46,
-38,
-50,
11,
-45,
-43,
34,
24,
-6,
20,
-7,
44,
-42,
65,
-23,
56,
0,
-9,
34,
1,
-49,
29,
19,
-5,
-31,
-6,
-13,
55,
9,
27,
7,
-46,
25,
1,
2,
35,
-9,
0,
24,
4,
3,
7,
-18,
0,
-2,
0,
2,
-24,
-12,
44,
-21,
16,
9,
21,
-8,
63,
-39,
-7,
25,
-1,
23,
-12,
-11,
-40,
-15,
-6,
44,
28,
12,
-21,
33,
-23,
-2,
6,
19,
-18,
-32,
26,
11,
3,
-51,
53,
17,
-56,
-18,
-5,
11,
-44,
43,
-71,
-1,
-23,
23,
-24,
-10,
9,
13,
-29,
3,
23,
-16,
-2,
32,
-4,
-8,
-1,
-13,
-10,
25,
12,
-21,
5,
26,
-17,
-1,
-13,
46,
27,
27,
11,
17,
7,
-28,
23,
-29,
-64,
4,
-64,
-2,
17,
-18,
45,
-13,
45,
-23,
-36,
-3,
-26,
-25,
15,
-21,
55,
16,
46,
16,
20,
-50,
-38,
17,
-68,
33,
39,
3,
56,
-41,
-39,
0,
9,
-12,
32,
37,
-8,
6,
38,
17,
-37,
-27,
4,
-53,
-21,
-13,
-57,
3,
0,
20,
6,
55,
28,
0,
-42,
-39,
-23,
-3,
-32,
3,
14,
-31,
-32,
49,
21,
-20,
-3,
5,
22,
-4,
13,
-15,
22,
20,
24,
-36,
-35,
48,
-60,
-13,
-5,
-27,
-10,
0,
-64,
-25,
-21,
41,
21,
-20,
7,
-39,
-18,
27,
9,
-6,
-34,
-2,
21,
11,
9,
39,
-38,
48,
21,
4,
55,
-36,
2,
-46,
-15,
29,
-1,
80,
-30,
3,
44,
-30,
-4,
48,
-7,
7,
2,
5,
3,
-4,
15,
-28,
-23,
-18,
9,
-15,
29,
-3,
-10,
-35,
0,
37,
40,
10,
-6,
10,
-20,
-87,
-77,
-3,
10,
-14,
35,
14,
-18,
-12,
-60,
28,
6,
-44,
36,
21,
-42,
5,
49,
47,
-15,
21,
6,
-38,
4,
-29,
7,
1,
5,
-36,
24,
-2,
-8,
6,
24,
-57,
4,
41,
-57,
-2,
25,
56,
10,
-1,
-47,
-49,
-24,
3,
3,
32,
48,
-8,
37,
-4,
52,
1,
-20,
-75,
15,
-22,
3,
-33,
3,
-24,
43,
10,
-4,
-14,
28,
4,
-5,
82,
-22,
32,
56,
-16,
-54,
9,
-16,
17,
14,
49,
-4,
-49,
-6,
0,
-11,
-29,
-2,
6,
14,
18,
41,
-36,
6,
52,
25,
-11,
-49,
-19,
18,
14,
16,
8,
-7,
0,
-6,
-11,
16,
-14,
-62,
72
] |
Hooker, J.
Two questions only require discussion in this case. .The claimant was allowed a sum against the estate of the intestate, and the defendant has brought the cause to this court. The claim relates to money expended and services rendered for the intestate. It was claimed by the defendant that the services were rendered under an agreement by which the claimant was to pay $2.50 per week and do-certain work for the deceased for his board. We think this was not conclusively shown, and that there was evidence to go to the jury in support of the claim. Upon the cross-examination, the claimant was asked if he had not stated upon a former examination that he was engaged to be married to the decedent, who was an elderly woman, and he said that he had. He also testified, in answer to the questions of defendant’s counsel, that he stated that, when he went to live with Mrs. Barrett, he was to pay $2.50 for his board, and was to do certain work for her in addition to that, viz., do the chores and look after the garden. On redirect, he testified that this agreement related to a time when he was working (presumably at his avocation), and that it was not to include any of his services continuously. This testimony was objected to as inadmissible under the statute excluding testimony' as to matters equally within the knowledge of the deceased.
Counsel for the defendant saw fit to interrogate the claimant as to alleged admissions about the contract, and, by direct questions, compelled him to admit that he said under oath that he agreed to pay $2.50 a week for board, and do some work for the deceased, but apparently sought to preclude him from showing the full terms of the contract. In other words, they sought evidence out of his own mouth of so much of the contract as would benefit the estate, and attempted to exclude the things that would benefit the claimant. The statute in question was designed to protect estates, by excluding the testimony upon the subject known equally to the claimant and the deceased party. If, however, the representative of the deceased wishes, he may compel the living party to testify; but in that case he cannot prevent such party from giving- a full explanation of the subject inquired about. Can he avoid this by relying upon his admissions to prove the contract ? In this case the defendant has not called the claimant as a witness, nor has he interrogated him about the terms of the contract. He has ingeniously avoided it by asking him, not what the contract was, but what he had admitted it to be upon another occasion. This was to all intents and purposes requiring the witness to testify upon the subject, for manifestly he might as well have said to the jury that those statements were true as to have said that he made them on a former trial, when under oath. It is clear that they went to the jury with all the force of direct statements about the contract. When it is sought to explain them, he is met with the objection that his testimony is excluded by the statute, and the argument that he has not testified to the contract, or been asked to do so, but merely what he has theretofore testified under oath to be the contract. It is admitted that upon such former trial the door was opened to redirect examination, if his testimony was called out by the adverse party; but it is urged that upon this trial his redirect must be confined to what was said upon the former trial by .way of explanation of the fact, although he may not have made or been asked for an explanation before. Thus, the statute, which is designed as a shield for the protection of the estates of deceased persons, is made a sword in its hands.
The claimant had not attempted to give evidence about his relations with the deceased, or the subject-matter of the contract, presumably because it was not admissible under the statute. Had the counsel for the estate sought to cross-examine him upon these subjects, it would have been a waiver of the statute. It is contended, however, that they might show his admissions about the contract, and about his promise to marry the deceased. To do this by another witness might have been proper, but in such case they must have offered the testimony in defense, and subject to tbe right of cross-examination. As it was, they sought to show it by cross-examining the claimant upon a subject foreign to his direct examination. This was not a proper cross-examination, because it related to matters which he had not attempted to testify about, and which the law did not permit him to relate without the consent of the opposite party. It could only become proper by opening the door to his testimony upon the subject, which the estate might do. Again, if, as counsel say in the record, they simply asked the claimant what he had testified on a former occasion for the purpose of contradicting — i. e., impeaching — him, it was incompetent, for there was no occasion to lay a foundation for impeachment upon matter which he had not mentioned.
It is obvious that a statement tantamount to an admission relating to the subject-matter of the contract was obtained, whether it was expected or not, and there is nothing in the record to indicate that,' upon this testimony, counsel did not claim that the claimant’s right to compensation was limited to his board. In such a case the admission is no more nor less than the testimony of the party himself. It is, in effect, the calling of such party as a witness by and for the representative of the deceased party, who desires to prove the transaction by him; and why should it be said that he may have so much of such testimony as he wishes, without giving an opportunity for explanation of the subject, any more than where the party was sworn upon the trial? There would be little justice in so construing the statute as to permit counsel for the estate to prove a part of a transaction hy the claimant’s own testimony, and then close the mouth of the witness as to the remainder. That seems to be what was attempted in this case. The court correctly held that, when a subject is gone into under such circumstances, it may be explained fully by the witness on redirect examination; and we are of the opinion that the case before us was within the rule. Smith’s Appeal, 52 Mich. 415.
A witness named Jahnke was called on behalf of the estate, and stated that he had a talk with claimant, who showed him an order from George Barrett during a conversation which he had with him. The record indicates that the conversation was with reference to negotiations between claimant and said George Barrett, who was one of the heirs of the deceased, wherein they executed a writing whereby it was agreed that claimant would be paid and receive $100 in full of his claim. It turned out that Barrett had-no authority to bind the estate, and he was dead at the time of the trial. The court excluded the instrument and the testimony, upon the ground that it was an attempted compromise. At the same time, he offered to permit evidence of the claimant’s statements as to the nature or value of his services, and permitted testimony that he said that he would be satisfied with $100. We think the ruling of the court was correct. See Manistee National Bank v. Seymour, 61 Mich. 70, and cases cited.
There are other questions raised by the record, but we think they do not require discussion.
The judgment is affirmed.
The other Justices concurred. | [
50,
-14,
-48,
-28,
-10,
-13,
20,
9,
21,
5,
23,
-40,
83,
50,
-17,
-11,
19,
-17,
-20,
-27,
-5,
-22,
10,
17,
13,
3,
42,
0,
-12,
-24,
1,
46,
-54,
-7,
0,
-30,
6,
-47,
-14,
15,
-18,
8,
-5,
-21,
5,
10,
-11,
-48,
-24,
-15,
34,
10,
10,
-14,
40,
30,
-5,
-8,
-48,
-14,
-14,
-63,
-27,
-40,
-16,
30,
7,
23,
-13,
-7,
-39,
-27,
9,
8,
-13,
-65,
7,
50,
17,
33,
45,
-34,
-20,
-30,
-36,
0,
13,
-15,
25,
-1,
-12,
0,
6,
37,
-75,
25,
20,
78,
48,
40,
15,
-1,
-11,
-8,
16,
30,
-45,
-11,
-8,
29,
-2,
-6,
46,
-25,
-30,
0,
-4,
-5,
-94,
-17,
22,
-13,
-17,
-58,
-4,
-8,
-6,
-6,
-25,
-13,
27,
22,
-20,
-4,
-3,
-9,
-7,
-15,
-30,
-9,
8,
31,
-10,
-49,
53,
-16,
-29,
-7,
-36,
-21,
10,
4,
8,
-12,
43,
-57,
-17,
-35,
46,
-45,
51,
29,
-44,
7,
-34,
1,
-2,
6,
20,
27,
0,
36,
-28,
-16,
23,
-14,
34,
-9,
-14,
-30,
-8,
22,
-19,
-9,
33,
-52,
53,
-17,
-20,
-1,
-36,
-27,
-8,
29,
26,
45,
11,
21,
-5,
10,
-32,
-23,
23,
55,
15,
5,
17,
-29,
-9,
-29,
22,
24,
-11,
-14,
-87,
-17,
-3,
-36,
-57,
14,
-3,
4,
-20,
-51,
-67,
-5,
-46,
-7,
4,
13,
-25,
6,
-30,
26,
-26,
-16,
16,
-14,
34,
-7,
-29,
11,
-8,
-31,
-23,
-63,
-23,
6,
-21,
7,
-23,
6,
15,
83,
-8,
-11,
0,
38,
-4,
-62,
-31,
57,
-34,
14,
-6,
-28,
26,
-28,
23,
14,
24,
7,
26,
34,
19,
-22,
-82,
-16,
-78,
-45,
-3,
33,
-39,
-36,
-53,
-12,
-73,
45,
6,
33,
79,
-33,
10,
-42,
62,
33,
1,
19,
-19,
-14,
26,
-28,
76,
29,
17,
1,
23,
15,
23,
-10,
12,
-11,
25,
24,
43,
67,
-28,
-63,
-1,
27,
19,
-27,
-17,
0,
6,
11,
20,
-60,
17,
61,
-46,
-5,
4,
-11,
-5,
-22,
-22,
-7,
-93,
-37,
13,
36,
-17,
-33,
20,
-5,
-11,
-43,
-9,
-17,
14,
23,
-37,
0,
13,
18,
21,
-25,
-3,
12,
22,
11,
-17,
14,
-6,
11,
-6,
-34,
34,
9,
27,
16,
-15,
-8,
-6,
-13,
-27,
40,
-8,
29,
-38,
-11,
-31,
3,
9,
37,
-43,
-20,
14,
41,
-30,
22,
22,
16,
4,
44,
0,
-25,
-19,
-20,
-14,
7,
21,
-44,
-39,
7,
-13,
-36,
-74,
13,
-29,
23,
28,
8,
10,
-8,
19,
-18,
-2,
28,
48,
4,
17,
45,
6,
-29,
-32,
45,
-39,
-66,
-18,
-20,
31,
-43,
5,
-7,
-17,
10,
-39,
51,
-14,
8,
33,
-10,
-6,
24,
-7,
-23,
55,
-28,
-10,
61,
-5,
45,
1,
-21,
80,
-19,
8,
29,
3,
19,
48,
-30,
42,
-14,
-13,
11,
27,
12,
0,
10,
44,
19,
-12,
8,
-22,
16,
18,
-21,
14,
0,
25,
53,
-20,
-10,
-19,
-32,
34,
-42,
11,
-7,
-12,
-38,
-39,
-34,
26,
11,
13,
-17,
25,
43,
59,
-32,
0,
-79,
-22,
-13,
21,
-13,
-21,
8,
29,
17,
8,
58,
64,
-9,
12,
14,
46,
-33,
-41,
-54,
10,
-13,
16,
76,
-6,
-43,
7,
39,
17,
-50,
9,
-56,
16,
-22,
12,
-36,
-50,
60,
34,
63,
-56,
25,
21,
-5,
23,
24,
-37,
-71,
15,
25,
4,
23,
69,
-35,
13,
7,
-17,
16,
5,
-24,
33,
-49,
-13,
-28,
23,
-5,
-25,
-1,
5,
34,
2,
-30,
17,
-17,
-4,
-8,
10,
1,
46,
-5,
-44,
12,
-12,
30,
0,
19,
-28,
30,
-17,
-34,
-31,
-71,
-14,
-43,
-44,
-6,
-17,
1,
-42,
-18,
-51,
-9,
-6,
14,
24,
13,
11,
37,
19,
-30,
-23,
53,
-2,
-73,
10,
50,
25,
46,
-7,
-68,
25,
-10,
7,
-7,
12,
-7,
-4,
-28,
10,
27,
-27,
-42,
11,
-12,
17,
-10,
24,
25,
-32,
3,
-2,
-24,
46,
3,
2,
-64,
-13,
7,
18,
-18,
2,
-14,
-32,
-15,
13,
-5,
45,
-52,
-7,
51,
34,
23,
50,
23,
12,
-2,
50,
-1,
-1,
15,
3,
-13,
-19,
-19,
30,
5,
14,
-69,
65,
-1,
-26,
3,
-10,
-42,
-11,
9,
13,
-27,
12,
-12,
8,
11,
49,
-2,
16,
13,
3,
-27,
2,
18,
-15,
-17,
-24,
6,
-4,
20,
15,
13,
-29,
18,
-30,
11,
-34,
-5,
-5,
5,
2,
-19,
3,
6,
8,
13,
63,
20,
-32,
-26,
64,
-20,
-17,
-1,
-15,
19,
17,
-62,
-9,
7,
5,
9,
-3,
-4,
21,
-9,
9,
10,
-30,
28,
22,
31,
8,
32,
-10,
15,
-23,
17,
18,
-41,
-19,
61,
18,
-14,
13,
-2,
-48,
-20,
4,
-10,
-10,
-6,
9,
-9,
11,
34,
-1,
15,
-13,
2,
30,
11,
-25,
45,
-22,
-42,
10,
-61,
50,
71,
-20,
0,
-5,
15,
-16,
-6,
3,
10,
24,
-48,
8,
22,
-7,
35,
14,
-33,
-14,
28,
4,
6,
-1,
-3,
-10,
-21,
-85,
-70,
23,
1,
6,
38,
19,
59,
-6,
-17,
-30,
1,
12,
2,
-1,
20,
14,
-44,
-25,
8,
25,
45,
-24,
13,
-39,
-32,
7,
-14,
7,
48,
17,
4,
-41,
7,
-31,
0,
27,
-5,
34,
37,
-10,
-66,
-30,
5,
-19,
-8,
-4,
8,
26,
-4,
43,
12,
13,
30,
52,
-30,
56,
8,
-25,
-15,
18,
-9,
30,
-6,
11,
-7,
-37,
60,
-16,
-8,
-28,
11,
48,
-62,
-16,
29,
18,
13,
3,
-25,
22,
-29,
-11,
7,
18,
24,
1,
3,
-26,
6,
-39,
-18,
-1,
1,
-7,
40,
34,
-22,
-32,
-25,
28,
51,
3,
5,
-26,
48,
27,
-10,
-53,
11,
-2,
-32,
55,
-35,
-42,
5,
36,
-17,
11,
7,
46,
-22,
-21,
10,
-14,
11,
57,
-24,
-44,
14,
-53,
36,
0,
-10,
42,
35,
-12,
20,
33,
42,
5,
13,
14,
-11,
-49,
26,
-5,
20,
8,
1,
76,
-13,
11,
28,
-5,
-24,
32,
-15,
2,
-88,
5,
-37,
41,
-18,
-22,
-21,
32,
-42,
-42,
28,
-32,
31,
32,
-54,
-33,
3,
35,
7,
-4,
13,
-9,
-11,
9,
-17,
20,
-26,
-10,
3,
-21,
50,
-12,
-22,
23,
59,
-19,
-64,
-21,
1,
24,
5,
-36,
39,
-21,
3,
2,
-31,
9,
-8,
-1,
38
] |
Hooker, J.
James Lillie was a resident of the State of Illinois, but carried on business under the name of the Lillie Lumber Company at Talbot, Mich., where he owned timbered lands. In the winter of 1895 and 1896, one George Smith made a contract with Lillie to cut and get out certain forest products, and Smith employed the plaintiff to assist him, and the work was performed. On February 25, 1896, the statement of lien required by 3 How. Stat. § 84276, was duly filed; and on April 1, 1896, proceedings were commenced by attachment on his behalf, as provided in 3 How. Stat. § 8427/, against Smith. Judgment was rendered against Smith on the 16th day of April, 1896, for $24 and costs. The return shows that certified copies of the writ of attachment and inventory were served personally upon George Smith, and also upon the Lillie Lumber Company, by delivering the same to one Huebel, the agent of said company; that none of the members of the company resided or could be found within the State. The return bore no date. On September 11, 1896, a summons returnable September 16th was issued against James Lillie, and was seasonably served upon him personally. This was followed by a judgment in trover for the. conversion of the logs, from which a special appeal was taken to the circuit court, where it was affirmed, so far as the special questions were concerned; and, upon a trial of the merits before the circuit judge, plaintiff recovered a judgment of $36 and costs. Counsel assign error, alleging" that the court erred in admitting the original judgment, upon the ground that it was void, for the reason that there was no personal service upon defendant, nor an adjournment of the cause for 30 days, under 2 How. Stat. § 6846.
3 How. Stat. § 8427k, provides:
“All writs of attachment issued under the provisions of this act by any of the circuit oj justice courts of this State shall be served and returned as- ordinary writs of attachment are served and returned in said courts, respectively, except as herein otherwise provided; and the pleadings and all subsequent proceedings shall be the same as in other cases of attachment, except as herein otherwise provided.”
The service in this cause was not such as is provided by the justice act (2 How. Stat. §§ 6840, 6841); but it was according to the method specifically pointed out in 3 How. Stat. § 8427/, and was therefore excluded from the operation of section 8427k by the words “except as herein otherwise provided,” contained therein. This section, however, provides that all subsequent proceedings shall be the same as in other cases of attachment, except as therein otherwise provided; and there is nothing in the log- 'lien statute, that we have found, that relieves the plaintiff from the necessity of causing an adjournment in accordance with 2 How. Stat. § 6846, where .the defendant is not personally served. The log owner was not a defendant in the sense of being a debtor; but he was to all intents and purposes a defendant, for his property was subject to seizure for the debt of another. Under section 8427/, service might be made as late as the return day, while under the justice act it must be made six days earlier. To hold that section 6846 has no application would subject a nonresident log owner, not served with process, to the danger of rendition of judgment against his property on the same day that service is made upon the agent, and upon the trial of the action against the debtor. Streeter v. McMillan, 74 Mich. 123.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
17,
30,
36,
-25,
-35,
10,
46,
-11,
23,
16,
-21,
-20,
-2,
14,
-21,
-18,
-7,
-24,
44,
17,
34,
-24,
14,
0,
-25,
-3,
-10,
32,
4,
15,
-32,
30,
-54,
-21,
-20,
15,
-48,
39,
-51,
-27,
-53,
0,
11,
-43,
25,
33,
8,
-12,
44,
-36,
10,
-10,
-4,
-17,
-13,
-15,
12,
-10,
-15,
54,
0,
-65,
24,
51,
27,
-19,
-27,
38,
6,
-4,
-11,
43,
-11,
24,
23,
-8,
-2,
-20,
-40,
25,
-17,
-25,
16,
-11,
-27,
-31,
-49,
-40,
40,
22,
-18,
-29,
-58,
19,
12,
4,
-32,
49,
-40,
13,
35,
59,
6,
-13,
-16,
-42,
-19,
-64,
-39,
93,
-25,
-9,
16,
-10,
-64,
-41,
18,
-14,
89,
-20,
3,
-9,
-7,
-6,
-1,
17,
-1,
-6,
13,
0,
10,
-34,
-12,
-16,
3,
16,
10,
-9,
25,
2,
41,
-6,
-21,
11,
-11,
8,
42,
-16,
-65,
11,
-17,
61,
31,
45,
17,
2,
17,
-38,
58,
-67,
61,
-2,
-2,
-47,
-13,
-46,
-5,
-33,
-30,
57,
-42,
24,
-20,
-35,
39,
29,
22,
-23,
-4,
1,
-17,
15,
8,
0,
26,
10,
66,
-3,
21,
11,
25,
23,
26,
-16,
-33,
28,
0,
-17,
-3,
11,
1,
-52,
-10,
-18,
0,
-3,
62,
10,
-17,
35,
5,
13,
-67,
-9,
-4,
62,
-49,
-31,
0,
-28,
-8,
45,
-7,
0,
-39,
-78,
17,
20,
49,
-1,
-28,
-4,
-3,
-39,
-24,
1,
35,
-1,
9,
0,
-20,
-6,
-62,
-19,
50,
-48,
-71,
-4,
-41,
-8,
-62,
-27,
2,
27,
12,
-60,
17,
-22,
9,
4,
-31,
20,
-10,
-2,
9,
3,
7,
48,
-5,
54,
7,
-24,
55,
14,
12,
-18,
7,
7,
8,
-47,
-8,
-27,
-4,
-51,
-18,
-34,
25,
6,
-25,
25,
8,
36,
27,
-12,
47,
46,
-7,
-13,
6,
19,
3,
0,
-1,
-48,
14,
41,
-23,
-9,
-11,
-15,
-72,
-27,
-30,
-66,
30,
-2,
17,
-43,
-6,
-19,
-21,
22,
-1,
19,
54,
41,
-20,
28,
-6,
18,
12,
-14,
4,
-11,
-47,
7,
39,
14,
-20,
-59,
-1,
15,
-73,
18,
-43,
5,
51,
-22,
32,
-3,
-7,
-10,
-48,
3,
-41,
26,
19,
-25,
-8,
41,
13,
-26,
12,
16,
22,
-40,
-44,
-23,
25,
15,
-12,
1,
41,
-32,
43,
-22,
-80,
-10,
-29,
17,
2,
12,
13,
-7,
8,
-42,
-40,
-24,
-44,
5,
-43,
42,
-9,
44,
-4,
-22,
-32,
-36,
-9,
-30,
16,
39,
43,
11,
-30,
-20,
-7,
-21,
9,
-20,
34,
-17,
21,
22,
-9,
-51,
-23,
3,
46,
-8,
87,
0,
39,
-20,
31,
-26,
23,
38,
-5,
-17,
9,
-40,
21,
-2,
20,
-1,
-17,
6,
-17,
16,
12,
0,
-30,
-7,
15,
-82,
-1,
29,
20,
-92,
4,
-24,
4,
-46,
20,
41,
-19,
-48,
27,
24,
11,
18,
-4,
28,
6,
22,
30,
-2,
-32,
18,
-37,
-12,
19,
-36,
-25,
-7,
33,
-16,
7,
38,
-3,
17,
61,
-33,
-14,
-29,
15,
4,
-30,
-12,
7,
38,
-12,
-7,
-64,
25,
-71,
-18,
18,
60,
-33,
2,
-4,
-3,
7,
-19,
18,
53,
-1,
60,
-5,
-3,
23,
16,
30,
55,
-26,
26,
-10,
-31,
-9,
8,
-17,
40,
-35,
44,
32,
8,
-27,
-19,
16,
-2,
-29,
22,
19,
18,
1,
1,
-13,
-20,
-10,
35,
50,
-8,
-14,
9,
41,
-20,
24,
-15,
23,
-15,
21,
-15,
-24,
21,
-6,
-9,
-8,
-19,
0,
15,
-14,
-16,
57,
-12,
-11,
-6,
29,
-29,
-12,
-45,
-2,
4,
3,
0,
-46,
15,
60,
-14,
-16,
-48,
-20,
-39,
51,
-50,
-29,
9,
-9,
22,
-22,
1,
-64,
-13,
-37,
-23,
-15,
33,
18,
-14,
-17,
22,
-38,
-5,
54,
-6,
6,
69,
56,
39,
12,
-17,
2,
50,
28,
-12,
8,
-38,
8,
62,
3,
-28,
-31,
20,
15,
18,
-6,
-16,
25,
11,
1,
32,
-2,
46,
-18,
21,
60,
39,
0,
23,
-18,
-33,
3,
-1,
-17,
12,
-29,
27,
1,
-28,
11,
-4,
74,
17,
-15,
-5,
40,
9,
-10,
18,
29,
-1,
-35,
24,
22,
15,
-9,
-5,
0,
16,
56,
-62,
-9,
13,
-9,
-35,
7,
35,
62,
19,
0,
-7,
50,
-7,
19,
47,
6,
-10,
-14,
-17,
-28,
14,
46,
6,
-23,
44,
-2,
-5,
-12,
-38,
-4,
40,
34,
40,
-15,
12,
-13,
-32,
10,
-35,
62,
-22,
45,
36,
-7,
53,
-6,
3,
28,
-69,
-25,
4,
-7,
-27,
0,
1,
6,
19,
-54,
-16,
39,
41,
-44,
-17,
40,
-27,
-11,
-10,
-77,
-2,
46,
-57,
-14,
9,
-39,
24,
7,
0,
-33,
-16,
50,
26,
15,
4,
-2,
-24,
-7,
-28,
-14,
-3,
-26,
2,
19,
32,
-14,
51,
-71,
-35,
-6,
-24,
-39,
81,
-50,
20,
54,
45,
-17,
47,
-6,
23,
19,
-29,
2,
9,
-36,
-49,
60,
-25,
55,
-9,
9,
-55,
27,
-12,
-72,
-15,
4,
-13,
-1,
-3,
-17,
13,
-34,
7,
-9,
29,
-8,
30,
4,
9,
6,
4,
-35,
-42,
-33,
1,
21,
-9,
-9,
17,
-31,
11,
-4,
-28,
29,
0,
-13,
-16,
9,
29,
27,
-42,
-49,
-59,
38,
4,
-7,
-38,
-30,
0,
-4,
14,
-4,
-25,
36,
4,
5,
-5,
-9,
-56,
-2,
6,
-10,
-20,
-44,
-48,
50,
-27,
-25,
1,
38,
-41,
-5,
-38,
-11,
-10,
37,
-46,
-13,
-25,
16,
39,
-12,
-22,
1,
-8,
8,
-19,
34,
26,
-25,
20,
24,
62,
-8,
-16,
25,
-11,
4,
1,
-21,
2,
-16,
12,
13,
-27,
2,
-40,
-8,
-14,
-26,
25,
21,
28,
11,
0,
-2,
-10,
-21,
-2,
16,
-69,
13,
47,
-51,
-4,
-38,
37,
-15,
54,
55,
-2,
-10,
54,
-7,
63,
85,
14,
7,
36,
-40,
14,
32,
14,
-2,
-13,
-33,
-78,
-41,
-22,
17,
29,
55,
-57,
-15,
-22,
22,
-16,
-8,
12,
-5,
2,
25,
35,
-48,
-36,
-34,
7,
1,
15,
11,
11,
-7,
24,
-25,
38,
-7,
17,
11,
-78,
-19,
12,
23,
-46,
10,
25,
52,
-19,
-6,
-28,
18,
-30,
-27,
29,
33,
12,
-28,
-2,
1,
0,
26,
-13,
84,
1,
15,
3,
-38,
-24,
-20,
19,
26,
-19,
-5,
22,
32,
-12,
33,
53,
-14,
16,
-59,
-46,
26,
13,
58,
14,
-66,
31,
-24,
-5,
12,
-10,
-14,
87
] |
Moore, J.
November 12, 1897, the relators filed a petition in the circuit court for Lapeer county, in which they stated that Mr. Keeler was director, Mr. Simmons moderator, and Mr. Chase assessor, of school district No. 1 of North Branch, in the actual discharge of their duties, and had been for more than a year. It also stated that Mr. Deo was the treasurer of the township' of North Branch, and that the moneys belonging to said school district had come into his hands as treasurer. It also stated that in January, May, and'June, 1897, warrants were drawn on said treasurer, in favor of Mr. Chase, as assessor, by the director, countersigned by the moderator, aggregating the sum of $293.05; that Mr. Chase presented these warrants for payment, and that payment was refused by the treasurer. The petition also stated that, because of said refusal, the teachers’ wages and other school expenses could not be paid, and prayed for a writ of mandamus requiring the respondent to pay the warrants drawn upon him.
The respondent answered the petition, and admitted that Mr. Keeler was director, and Mr. Simmons moderator, as stated in said petition, but denied that Mr. Chase was the assessor, and averred, upon information and belief, that William Coffron was, and had been for four years, the assessor of said district, in the actual possession of the office, and discharging its duties, as would more fully appear by the affidavit of Mr. Coffron, which .affidavit the answer made a part thereof. He admitted the receipt of the school money, as treasurer, and the presentation of the warrants by Mr. Chase, and stated that payment was refused because Mr. Chase was not assessor ■of said school district, either de facto or cle jure. The answer denied that all the funds which came to him as treasurer, belonging to said school district, were in his hands, and stated that $250 had been paid by him to William Coffron, as assessor of said school district, and had been applied by Mr. Coffron, as assessor, in paying teachers’ wages, and other expenses for said school district.
The affidavit of Mr. Coffron is to the effect that he was elected to the office of assessor in September, 1893, and was re-elected in September, 1896, and that within 10 days he filed his acceptance and official bond. It also states that when re-elected he had $90.12 in his hands, belonging to said district; that Mr. Chase made a demand upon him for that amount, which demand he refused, for the reason that he (Mr. Coffron) claimed he was assessor, which reason was stated to Mr. Chase; that $250 of the money belonging to said district was paid to him by Mr. Deo, and that he commenced to pay out said money for the school district in September, 1896, and continued to pay orders drawn by Mr. Keeler, director, countersigned by Mr. Simmons, moderator, — the last of said orders bearing date June 11, 1897, which order was for $50, teachers’ wages; that he paid one order of $115, dated January 13, 1897, for teachers’ wages, and one of April 30, 1897, for teachers’ wages, and that he is informed that there is but one order issued by the said director and moderator outstanding and unpaid, which order is for $20, but has never been presented for payment; and that he now has about $63 in his hands, belonging to the district. The affidavit further states that Mr. Chase has never been in possession of the office of assessor of said school district, and has not received any of the books or papers belonging to the district, but that they have all been retained by affiant, as assessor of said district, and no action or proceeding has been commenced by Mr. Chase to recover possession, of them, and that they, as well as $63 of money belonging to the said district, are yet in the possession of affiant.
It was the opinion of the circuit judge that when the director and moderator recognized Mr. Chase as assessor, by delivering to him, as assessor, the warrants, upon their presentation, so far as the township treasurer is concerned, Mr. Chase must be regarded as the assessor de facto, —citing School District v. Root, 61 Mich. 377; McCormick v. Bay City, 23 Mich. 457; Burns v. Bender, 36 Mich. 195; Moiles v. Watson, 60 Mich. 415. He also held that whether Mr. Chase was assessor de jure or not could not be determined in this action; citing Mead v. Ingham County Treasurer, 36 Mich. 416; Moiles v. Watson, supra. He also held that as there had been delay in applying for the writ, and Mr. Coffron had paid out the district money, for its debts, upon orders issued by the director, • countersigned by the moderator, these amounts must be treated as paid, and directed the writ should issue for $63.22, which was just the amount shown by Mr. Coffron’s affidavit to be in his hands. No mention was made of the $43.05 remaining in the hands of the respondent.
We think the court erred in its conclusion as to who is shown by the record to be the officer de facto. It is well settled in mandamus proceedings, where the hearing is upon the petition and answer, that the answer must be taken as true. Mead v. Ingham County Treasurer, 36 Mich. 416; Detroit Tug & Wrecking Co. v. Wayne Circuit Judge, 75 Mich. 360; Coffron v. Board of Canvassers, McGrath, Mand. Cas. No. 1157; Noble v. Township of Paris, 56 Mich. 219; Murphy v. Reeder Township Treasurer, Id. 505; Merrill v. Gladwin County Treasurer, 61 Mich. 95; Tyler v. Oceana County Supervisors, 93 Mich. 449; City of Benton Harbor v. St. Joseph, etc., R. Co., 102 Mich. 386 (47 Am. St. Rep. 553). The answer denies that Mr. Chase is assessor de facto, and avers that Mr. Coffron is assessor de facto, in •the possession of the office, claiming to be duly elected .and qualified. The affidavit of Mr. Coffron, which is made a part of the answer, shows that he has been in possession of the office from September, 1893, and is still in possession; that at the school meeting in September, 1893, he was elected, and afterwards duly qualified, as assessor; that in September, 1896, he was re-elected, and qualified; that at the time of his re-election he had upwards of $90 in his hands, belonging to the district; that afterwards $250 was paid him, as assessor, by the township treasurer, which has been paid out by him, as assessor, to pay teachers’ wages and other school expenses, upon orders drawn by the director and countersigned by the moderator. Mr. Coffron had refused to deliver up his office to Mr. Chase, and, though nearly 14 months had elapsed, Mr. Chase instituted no legal proceedings to obtain possession of the office until this one was instituted. The effect of the order made by the learned judge is to oust Mr. Coffron from the office of assessor by a proceeding in mandamus to which he was not a party. We do not think the title to the office can be determined in that way. Mead v. Ingham County Treasurer, 36 Mich. 416; Moiles v. Watson, 60 Mich. 415; Pariseau v. Board of Education, 96 Mich. 302. See, also, Hallgren v. Campbell, 82 Mich. 255 (9 L. R. A. 408, 21 Am. St. Rep. 557); Tower v. Welker, 93 Mich. 332.
The order of the court below, granting a writ of mandamus, will be reversed, with costs of both courts.
The other Justices concurred. | [
40,
3,
-13,
7,
9,
66,
40,
13,
-15,
16,
-24,
-56,
-4,
70,
-17,
-14,
16,
-40,
0,
-54,
-50,
-35,
14,
-2,
-33,
-48,
16,
8,
-74,
7,
13,
-28,
-37,
30,
24,
-1,
25,
-43,
19,
-23,
-46,
10,
-9,
-34,
-5,
-19,
-11,
-11,
-6,
11,
-4,
7,
13,
13,
36,
2,
12,
-40,
14,
-48,
-21,
-4,
57,
-8,
-17,
-1,
7,
10,
-4,
-34,
-24,
0,
2,
-17,
24,
28,
-19,
19,
-26,
37,
37,
-21,
-40,
19,
-27,
0,
-55,
30,
-2,
23,
0,
32,
-47,
43,
75,
12,
12,
4,
33,
0,
-12,
-17,
-23,
-9,
0,
-19,
-2,
39,
18,
-23,
-31,
-4,
54,
-32,
-23,
-28,
-24,
-40,
59,
-4,
6,
-23,
58,
0,
45,
55,
0,
-26,
-39,
7,
-3,
31,
-32,
5,
-23,
-11,
12,
-26,
32,
-26,
-14,
33,
33,
-23,
-30,
-54,
-37,
17,
0,
15,
-35,
-4,
39,
19,
-5,
8,
57,
0,
35,
-27,
-1,
0,
10,
-20,
-18,
-21,
37,
-6,
21,
20,
26,
73,
-14,
-2,
-11,
-50,
-6,
57,
0,
45,
10,
-39,
24,
-14,
-17,
-34,
35,
-30,
10,
4,
-28,
-47,
-8,
-46,
18,
-2,
3,
-31,
-26,
-12,
19,
-8,
32,
49,
-24,
-32,
68,
-36,
-72,
57,
-35,
0,
-21,
48,
-1,
10,
-49,
38,
35,
-13,
15,
62,
43,
30,
-7,
0,
4,
0,
-10,
-21,
22,
29,
-38,
-22,
-5,
-5,
-36,
8,
-1,
-21,
-78,
-18,
19,
5,
-17,
-42,
-24,
-32,
-1,
56,
-25,
63,
0,
-67,
-31,
20,
-25,
-8,
20,
-17,
13,
-12,
10,
2,
-33,
-55,
35,
82,
-15,
14,
-22,
55,
4,
-46,
-4,
3,
38,
-62,
11,
22,
2,
-25,
4,
37,
3,
38,
0,
-19,
-3,
-29,
10,
-7,
30,
35,
21,
12,
12,
-15,
29,
-34,
-38,
12,
2,
26,
49,
12,
-39,
-90,
16,
-7,
50,
12,
-53,
28,
61,
-2,
-42,
-35,
-43,
36,
-11,
-23,
-57,
-62,
7,
38,
5,
35,
-1,
-2,
-13,
-15,
-15,
-26,
-2,
46,
27,
0,
15,
-42,
7,
23,
18,
50,
13,
-27,
-55,
23,
-6,
-14,
0,
-7,
-8,
43,
-13,
19,
42,
21,
-2,
43,
-6,
30,
3,
-44,
7,
2,
-40,
-28,
11,
15,
52,
-22,
60,
20,
5,
5,
1,
-5,
-17,
0,
-45,
-4,
-42,
23,
25,
-1,
49,
25,
31,
-29,
20,
-1,
-24,
-7,
19,
-22,
25,
-15,
-13,
-33,
-25,
-6,
0,
26,
-43,
-8,
-18,
-13,
19,
11,
27,
-4,
18,
-35,
28,
-57,
37,
-4,
19,
13,
40,
25,
14,
-24,
57,
0,
-16,
35,
26,
50,
-45,
-4,
34,
-12,
35,
-49,
-3,
11,
-20,
-24,
15,
-4,
16,
-12,
-46,
-45,
-30,
-3,
26,
22,
-6,
-15,
-12,
-26,
-42,
-9,
28,
-23,
84,
0,
-6,
-18,
12,
21,
-17,
49,
-28,
36,
-21,
13,
-29,
9,
-67,
-43,
9,
-36,
37,
-41,
53,
54,
-3,
-47,
-48,
-8,
-40,
24,
-16,
-25,
-11,
4,
1,
11,
-62,
23,
39,
44,
-6,
-36,
50,
41,
0,
34,
-15,
-26,
10,
3,
-30,
-24,
-9,
-26,
-7,
-13,
12,
45,
-17,
16,
-25,
2,
4,
20,
15,
44,
-52,
6,
47,
46,
55,
37,
-4,
45,
-33,
39,
20,
-12,
14,
9,
6,
36,
-23,
-11,
17,
29,
77,
42,
18,
30,
-37,
-7,
15,
-14,
25,
-20,
-15,
-27,
-72,
12,
-12,
-39,
0,
-12,
3,
-45,
4,
-52,
25,
-19,
6,
-2,
-34,
-1,
26,
-57,
45,
-22,
-33,
37,
-31,
-17,
20,
17,
-19,
14,
19,
-11,
48,
-24,
85,
-10,
30,
19,
-15,
2,
-74,
37,
17,
-2,
-20,
70,
55,
-18,
-10,
30,
-17,
25,
-27,
-4,
-12,
20,
-11,
-50,
-18,
2,
75,
20,
7,
8,
-33,
-5,
-7,
-5,
34,
2,
3,
-39,
19,
2,
44,
-4,
-9,
-35,
6,
-9,
-16,
21,
-57,
-26,
0,
7,
17,
8,
8,
-29,
-65,
-33,
6,
-20,
-45,
-1,
-12,
-41,
-46,
-11,
37,
3,
-54,
14,
20,
-38,
21,
-41,
62,
-31,
-41,
63,
25,
17,
69,
21,
46,
13,
-39,
-23,
6,
-47,
-5,
-41,
-12,
29,
16,
13,
48,
56,
-30,
84,
-18,
-10,
8,
1,
-86,
-23,
7,
40,
-23,
12,
-16,
-3,
-21,
-4,
-7,
2,
-5,
-18,
-41,
24,
-43,
-28,
5,
-22,
-43,
14,
-36,
-9,
-23,
21,
-28,
10,
48,
30,
-4,
4,
13,
-46,
35,
2,
24,
-9,
32,
-38,
33,
-13,
-18,
41,
6,
-56,
11,
34,
51,
8,
9,
-5,
24,
-20,
-49,
-12,
19,
32,
50,
36,
-17,
4,
18,
23,
-39,
14,
36,
14,
3,
-1,
22,
47,
-11,
-12,
-55,
-36,
-5,
-25,
-40,
16,
8,
1,
28,
16,
-49,
-20,
56,
-62,
-42,
-29,
27,
-53,
0,
48,
-27,
-7,
7,
-23,
-7,
-15,
22,
7,
-1,
-43,
27,
-37,
-38,
52,
51,
-39,
13,
-27,
-16,
46,
-7,
21,
-2,
4,
-44,
19,
-37,
39,
33,
47,
-55,
-38,
25,
26,
9,
17,
0,
-10,
-15,
19,
34,
12,
11,
16,
38,
28,
-37,
39,
41,
-4,
3,
-21,
11,
-97,
-10,
-26,
35,
48,
10,
-34,
-23,
-27,
-40,
-29,
24,
14,
-49,
-6,
-67,
42,
-64,
31,
41,
-27,
46,
-12,
-6,
-28,
40,
-22,
-18,
11,
-33,
45,
25,
-12,
28,
18,
-14,
-11,
-33,
18,
8,
16,
44,
-29,
7,
-50,
-53,
0,
19,
-41,
28,
24,
12,
-26,
40,
49,
-42,
48,
14,
-17,
-18,
2,
-23,
-48,
-96,
2,
-14,
24,
4,
4,
13,
-11,
33,
27,
5,
41,
-30,
2,
-25,
-43,
-57,
-38,
-18,
-31,
16,
6,
31,
-25,
-18,
10,
-24,
-17,
43,
24,
-50,
24,
-16,
11,
2,
-14,
47,
3,
59,
-61,
32,
42,
26,
-16,
-60,
-19,
40,
19,
25,
12,
21,
21,
-22,
-21,
-21,
39,
-23,
-11,
-78,
-19,
-9,
12,
-2,
0,
23,
22,
-29,
-8,
-19,
15,
42,
8,
-32,
-12,
-23,
21,
-4,
-40,
3,
-4,
6,
39,
23,
-42,
2,
27,
-1,
4,
19,
-44,
-67,
17,
-20,
-10,
39,
-31,
8,
5,
-23,
-16,
-2,
-3,
62,
0,
23,
8,
-3,
-50,
40,
7,
62,
64,
2,
8,
-2,
-8,
73,
-16,
5,
-46,
-19,
-34,
22,
2,
-69,
10
] |
Grant, C. J.
(after stating the facts). Counsel for the plaintiffs insists that the transaction was, in effect, an assignment for the benefit of creditors, and void because of preferences. "We cannot concur’in this view. It was doubtful whether the goods at an auction sale would bring enough to pay 50 per cent, of the mortgages. Defendant gave evidence to show a bona fide sale. The debtors were released from their obligations. The creditors discharged them, and accepted in lieu thereof the obligation of Dillabaugh. The novation was complete. The case is clearly distinguishable from that of Hill v. Mallory, 112 Mich. 387. The entire question of fraud was submitted to the jury under full and correct instructions. The jury found there was no fraud, and their verdict has settled the question. •
This is not a case for the application of the rule established in Allen v. Stingel, 95 Mich. 195. It cannot be said that Dillabaugh purchased with knowledge that he was amply secured, and that Buchman Bros, were insolvent, and that he entered into the transaction for the purpose of defrauding the unsecured creditors of Buchman Bros. His mortgage was a second one. The goods were old, and, if sold under the mortgages, would have failed to realize the amount secured.
We find no error in the record, and the judgment is affirmed.
The other Justices concurred. | [
30,
15,
11,
9,
-45,
27,
23,
49,
3,
38,
46,
-8,
39,
19,
13,
-42,
56,
-3,
-34,
-13,
2,
-45,
-57,
48,
-18,
-11,
45,
6,
-5,
36,
-5,
-2,
23,
20,
-33,
36,
-10,
-24,
20,
-20,
-6,
3,
-14,
6,
-2,
16,
6,
-97,
51,
-39,
26,
-19,
33,
-17,
-27,
1,
0,
14,
-24,
-39,
43,
-58,
1,
-10,
-16,
-63,
11,
-10,
21,
-17,
-30,
-7,
8,
-31,
11,
-5,
-16,
20,
-62,
-3,
35,
-46,
72,
-14,
-1,
3,
57,
15,
-11,
9,
-14,
-2,
40,
-24,
14,
16,
70,
29,
17,
2,
-23,
-30,
-18,
29,
32,
-2,
1,
-28,
-8,
-22,
6,
-22,
-27,
0,
-42,
-14,
-43,
17,
-10,
1,
15,
0,
-6,
-1,
10,
15,
-20,
-5,
-50,
-43,
19,
39,
-58,
69,
-18,
-50,
-38,
12,
21,
-21,
13,
15,
-59,
-52,
3,
-27,
78,
0,
2,
-20,
-55,
0,
28,
32,
-9,
-20,
-7,
-29,
17,
-81,
19,
-20,
-18,
-16,
-18,
18,
-41,
-24,
-4,
17,
-9,
18,
-13,
-4,
18,
36,
30,
3,
16,
-25,
-10,
10,
-6,
15,
5,
-13,
10,
-12,
68,
-62,
-18,
-2,
-26,
51,
-34,
55,
-13,
24,
-6,
-19,
15,
-52,
-27,
-21,
15,
-22,
15,
-98,
-7,
0,
-10,
40,
16,
-54,
-26,
17,
-23,
-68,
9,
-57,
19,
22,
-15,
13,
-43,
-58,
13,
-3,
-32,
12,
-17,
-6,
-1,
-27,
39,
-17,
12,
-22,
19,
-26,
-14,
-14,
9,
-34,
-44,
8,
-3,
-27,
19,
-16,
-25,
6,
0,
93,
22,
14,
15,
11,
-35,
-20,
9,
45,
-63,
-27,
-18,
-26,
6,
-6,
-21,
-7,
-2,
-26,
11,
49,
22,
-21,
-52,
11,
-14,
24,
22,
2,
21,
-3,
-33,
43,
-37,
49,
-9,
-4,
71,
17,
16,
5,
29,
20,
22,
0,
15,
-23,
26,
12,
15,
11,
15,
25,
26,
16,
-25,
3,
17,
-30,
6,
9,
7,
2,
-44,
-12,
5,
5,
-3,
-16,
30,
11,
4,
-24,
48,
-52,
-28,
30,
20,
-3,
-13,
-15,
52,
-21,
53,
-46,
-40,
7,
-16,
-12,
15,
-26,
33,
-48,
-50,
-9,
-11,
29,
-26,
7,
-62,
54,
47,
-15,
40,
44,
-21,
29,
9,
24,
-15,
7,
-24,
-5,
-12,
-14,
-1,
52,
-6,
54,
-31,
15,
-39,
8,
-70,
-39,
-39,
31,
27,
36,
17,
16,
4,
14,
-32,
-9,
14,
32,
-61,
-18,
14,
1,
6,
-48,
-2,
-10,
-24,
-29,
-10,
9,
-42,
-41,
-44,
36,
-2,
-24,
7,
-14,
-23,
-1,
12,
-35,
0,
31,
48,
24,
0,
32,
23,
6,
25,
-16,
2,
-62,
10,
54,
-26,
38,
-7,
-5,
28,
-70,
15,
4,
-1,
0,
-2,
33,
19,
-40,
-26,
21,
32,
1,
-22,
8,
26,
-9,
-16,
-15,
-6,
17,
9,
45,
16,
-64,
-6,
-42,
59,
-9,
8,
-47,
30,
-9,
-5,
-15,
26,
-24,
-14,
-10,
31,
26,
-5,
35,
-3,
-13,
21,
23,
6,
33,
-22,
27,
-70,
-37,
-57,
-6,
-17,
-21,
21,
7,
19,
-13,
-11,
-5,
37,
17,
5,
-15,
20,
0,
-25,
2,
-6,
-29,
4,
-68,
1,
8,
-28,
8,
4,
46,
-16,
-15,
29,
31,
-4,
68,
28,
-36,
-69,
-13,
37,
15,
8,
53,
34,
-24,
46,
28,
-4,
-16,
45,
31,
15,
-8,
36,
-12,
-32,
29,
-17,
70,
-6,
46,
34,
-20,
77,
-18,
8,
-83,
20,
7,
-26,
25,
-25,
-31,
13,
-21,
-26,
12,
33,
-6,
56,
-44,
-12,
-60,
-15,
-9,
12,
-19,
20,
10,
-11,
-48,
24,
12,
9,
17,
-57,
34,
-22,
-43,
-1,
52,
20,
30,
5,
-25,
34,
-48,
-12,
0,
-18,
-47,
-14,
-6,
15,
66,
-7,
10,
-37,
-8,
46,
-45,
-21,
24,
-19,
11,
3,
29,
61,
-30,
25,
12,
-4,
-30,
-12,
34,
-7,
64,
16,
-64,
-8,
48,
20,
13,
24,
-14,
16,
-32,
43,
-32,
-46,
33,
0,
-16,
-22,
-21,
0,
0,
-50,
-24,
22,
-10,
-12,
24,
20,
-20,
-15,
-1,
13,
15,
19,
-17,
-1,
-49,
21,
-73,
51,
5,
2,
45,
-5,
3,
15,
7,
13,
-18,
-14,
0,
20,
-9,
39,
39,
-5,
25,
2,
29,
-39,
-29,
15,
-27,
-32,
31,
18,
-11,
-43,
-26,
20,
19,
-26,
-50,
-10,
-27,
0,
52,
-10,
-24,
40,
0,
-62,
32,
-28,
24,
11,
0,
-30,
22,
-6,
-7,
-11,
-6,
-19,
-13,
-24,
-9,
-19,
-32,
-33,
-32,
12,
-46,
0,
-71,
37,
-6,
-11,
6,
8,
-44,
-7,
18,
0,
52,
6,
15,
-4,
10,
-41,
57,
21,
-14,
-3,
7,
16,
38,
50,
-9,
50,
-4,
28,
-2,
-13,
8,
-25,
-2,
-11,
-23,
-47,
50,
-33,
11,
35,
13,
-19,
-9,
-44,
-35,
-39,
-17,
-29,
1,
-3,
-71,
28,
-5,
49,
-14,
8,
-43,
-14,
23,
16,
-19,
42,
-15,
-5,
46,
48,
34,
-23,
13,
-15,
40,
64,
-27,
12,
-28,
-22,
27,
7,
24,
13,
44,
-50,
6,
40,
-36,
-4,
-41,
43,
-72,
-9,
10,
0,
-20,
-16,
4,
3,
10,
-37,
-59,
-68,
-28,
9,
-18,
-12,
-4,
12,
-24,
-40,
32,
14,
2,
-44,
-59,
47,
11,
-21,
-37,
-31,
8,
23,
25,
-43,
12,
-36,
-31,
-17,
-25,
44,
-3,
5,
-11,
-5,
50,
47,
-41,
21,
56,
-7,
-5,
35,
-24,
31,
27,
29,
53,
-23,
14,
17,
13,
-8,
-10,
7,
-10,
-27,
-5,
32,
-7,
-21,
34,
10,
-20,
27,
-28,
-24,
60,
-2,
20,
-76,
61,
7,
8,
-15,
-11,
68,
2,
7,
-22,
20,
-34,
51,
26,
7,
46,
-20,
55,
44,
-26,
27,
-40,
-38,
19,
36,
4,
53,
-9,
19,
19,
-56,
-26,
44,
-46,
-10,
-11,
-39,
-12,
-35,
73,
-10,
15,
62,
-29,
-28,
-25,
-6,
29,
14,
15,
-24,
14,
-47,
3,
-15,
-9,
1,
-4,
23,
8,
47,
45,
-40,
-14,
-28,
-25,
-65,
-30,
9,
27,
35,
-21,
39,
36,
10,
-12,
20,
0,
22,
29,
-38,
-38,
7,
-28,
22,
-1,
-39,
-43,
16,
-7,
-45,
30,
13,
-13,
-16,
19,
-31,
-5,
40,
8,
82,
-14,
-48,
-33,
-14,
26,
8,
-68,
31,
-9,
27,
-8,
17,
-43,
26,
30,
28,
-29,
-45,
-22,
48,
25,
-26,
-21,
2,
34,
10,
0,
8,
32,
-8,
73
] |
Montgomery, J.
Certiorari was issued from the circuit court to review proceedings laying out and establishing a drain. The circuit judge set aside the action of the drain commissioner, and this ruling is before us for review. A large number of objections were set out in the affidavit for certiorari, very few of which call for any discussion whatever. The meritorious questions raised may be considered under two or three heads. A brief history of the proceeding is essential to an understanding of the points involved. An application for a drain along substantially the same route followed by that involved in this proceeding was made in December, 1894, and proceedings were had to establish and lay out such a drain. The drain commissioner proceeded so far as to let contracts, under which about one mile was constructed. The question of the regularity of these proceedings was afterwards raised, and a suit instituted in the circuit court of Berrien county, in chancery. The court, on a hearing, adjudged all the proceedings subsequent to the first order of determination null and void. The commissioner then proceeded anew to make application to the probate court for the appointment of commissioners to determine the necessity of taking certain lands for the purpose of the drain. This was opposed on the ground that the original application was a nullity, and failed to give the commissioner jurisdiction. The probate judge so held. The petition under which the proceedings now under review were held was then filed on March 24, 189?. The usual proceedings followed. The necessity for a drain was determined by a' jury, the damages to the owners of the land appraised, the report of the jury confirmed by an order of the probate court, and the final order of determination was made by the commissioner. The plaintiff in certiorari thereupon filed his affidavit, and sued out the writ.
The first objection made before the probate court was that the application was to relay a drain the proceedings for which were declared void because of jurisdictional defects in the original application. Section l?40c/3, 3 How. Stat., provides:
“Whenever any drain has been located, established,, and the work of construction completed or partially conu pleted, and any court has declared such proceeding to he illegal or void for any cause other than that such drain is unnecessary, and not conducive to the public health, convenience, or welfare, the commissioner shall, without unnecessary delay, proceed to relay and complete such drain under the provisions of this act, and reassess upon the lands benefited by such drain the original cost thereof, together with the expenses of relaying and completing, and shall continue so to do until such drain has been' legally established and constructed.”
This provision would appear to be broad enough to warrant this proceeding if the statute is valid. We see no reason why this equitable provision should not be sustained. It is not a proceeding to declare valid and effectual proceedings already had. If it were, the power of the legislature would be limited to dispensing with non-" essentials. Jurisdictional essentials could not be dispensed with. Cooley, Const. Lim. (6th Ed.) 471. The rule is that the legislature may validate acts which it might previously have authorized, but can go no further. As the legislature could not provide in advance that the steps to acquire jurisdiction might be omitted, so it cannot, by direct enactment after failure to comply with adjudicated prerequisites, declare the proceedings valid notwithstanding. But this is not an attempt to validate these proceedings without giving the parties concerned an opportunity to be heard. Certain work had been done in advance of a valid determination of necessity, and in advance of a valid condemnation. It is none the less equitable that those benefited by this work should pay for it, nor is it any the less proper that the question of the necessity for taking property for a public use be determined. See Miller v. Graham, 17 Ohio St. 1; Goodrich v. Inhabitants of Lunenburg, 9 Gray, 38; Grim v. Weissenberg School District, 57 Pa. St. 433 (98 Am. Dec. 237); Cooley, Tax’n (2d Ed.), 302. It is true, the court in Houseman v. Kent Circuit Judge, 58 Mich. 367, refused to follow Miller v. Graham, supra; but this was on the ground that the Michigan statute under consideration in the Houseman Case attempted to confer administrative functions on the courts. No such objection can be urged to the present statute.
It is next objected that the description of the proposed drain in the application is insufficient. This description reads as follows:
“Commencing at a point about 50 rods south of the northeast corner of section 1, Weesaw township, in said county of Berrien, where Hickory creek crosses the highway along the easterly line of said township of Weesaw; thence, in a westerly and northwesterly direction, through said section 1; thence, crossing the southwest corner of section 36, township of Lake, in said county, into section 35, in said township of Lake, at a point about 12 rods north of the southeast corner of said section 35; thence, running in a northerly direction, following the general course of said Hickory creek, to a point where said creek crosses the north line of said township of Lake. Said drain to have a bottom width not to exceed 10 feet, with sides sloping therefrom at an angle of not more than ,45 degrees, and of sufficient depth to carry off all surplus water. The line of said drain, as proposed above, is to be the center line thereof; and the land to be used in its construction is to be taken in equal width along either side of the said center line.”
The requirement of the statute is that the petition give a general description of the beginning, the route, and the terminus. This description was sufficiently accurate to give the commissioner jurisdiction. As was said by Mr. Justice Champlin in Kinnie v. Bare, 68 Mich. 627, speaking of the present provision of the statute: “ What it contemplates is that the termini and route be approximately described for the information of the commissioner; and it is left for him to ascertain and determine the practical route and termini.” See, also, Gillett v. McLaughlin, 69 Mich. 547; Clark v. Teller, 50 Mich. 618.
The only remaining objection which we deem it necessary to discuss at any length is the one which states that ‘ ‘ there is nothing in said application in relation to cleaning out, deepening, widening, or straightening any watercourse.” It is contended that, inasmuch as the general' course of the contemplated drain is along the course of the Hickory creek, the proceedings should have been taken under the provision of the law authorizing the improvement of the watercourse. Section 17407i7, 8 How. Stat., provides:
“All the powers conferred by this act for establishing and constructing drains, and for the enforcement of assessments therefor, shall also extend to and include the deepening, widening, and extending of any drains which heretofore have been laid or may hereafter be constructed; also to straightening, cleaning out, and deepening the channels of creeks and streams, and the constructing, maintaining, remodeling, and repairing of levees, dykes, and barriers for the purpose of drainage. The commissioner may relocate or extend the line of any drain if the same be necessary in order to provide a suitable outlet, in which case he shall cause a survey thereof to be made: Provided, that no proceedings affecting the rights of persons or property shall be had under this section, except upon a like application, notice, hearing, and award prescribed in this act for the construction of drains in the first instance.”
This section does not provide for the form of the application. Provision is made in section 1740/i4 for cleaning out established drains; but obviously such a proceeding would not have been adequate in this case. By an amendment to this section, adopted in 1893 (Act No. 203, Pub. Acts 1893, chap. 8, § 1), it was provided:
“In cases where a natural watercourse shall need cleaning out, deepening, or widening, where no proceedings have been had previously to establish such watercourse, it shall be immaterial whether the first proceedings shall be to clean out, lay out, deepen, or widen, but the commissioner shall take such steps as may be necessaiy to obtain a right of way as heretofore provided, and go on with his proceedings in the manner provided by law.”
Under this provision, we think it clear that the petition was sufficient, and that the commissioner, under a petition to lay out a drain along the general course of this creek, might include portions of the creek, and deepen,, widen, or straighten the same.
We have examined and considered the other points made, and discover no error in the proceedings of the commissioner or probate judge warranting a setting aside of the proceedings. The judgment of the circuit court will be set aside, and the certiorari quashed, with costs of both courts.
The other Justices concurred. | [
-11,
11,
68,
-24,
-40,
44,
-9,
-14,
2,
47,
0,
-48,
1,
24,
-22,
-10,
-15,
-28,
-28,
-18,
-15,
4,
4,
17,
19,
24,
30,
10,
-11,
15,
-13,
-8,
-50,
46,
22,
-26,
27,
-37,
53,
1,
-38,
23,
-33,
-56,
-42,
13,
23,
22,
-8,
-13,
-21,
4,
-6,
0,
-39,
-59,
-19,
19,
-9,
-36,
-25,
24,
0,
0,
0,
38,
-70,
-2,
31,
0,
-31,
18,
10,
-24,
63,
30,
36,
-40,
-37,
-27,
-22,
75,
41,
-48,
3,
-24,
-33,
31,
65,
11,
37,
-6,
-6,
22,
-16,
-27,
-2,
1,
0,
15,
0,
9,
2,
5,
-16,
-43,
-40,
-29,
-16,
3,
81,
-33,
23,
-74,
-80,
-43,
4,
-26,
-28,
-37,
-15,
-9,
-19,
-11,
-77,
7,
1,
-19,
-29,
25,
-28,
8,
7,
-16,
27,
17,
0,
0,
-10,
3,
9,
10,
49,
-9,
30,
27,
0,
-10,
16,
2,
32,
-2,
27,
-16,
12,
31,
14,
-56,
-3,
35,
31,
54,
-13,
-53,
-54,
-26,
-8,
-2,
32,
-22,
26,
18,
4,
-49,
15,
-103,
20,
26,
20,
39,
4,
-61,
30,
-3,
-28,
18,
-62,
11,
-6,
-17,
16,
-17,
30,
27,
-1,
23,
-20,
5,
22,
16,
-47,
-10,
2,
-53,
-47,
13,
-40,
-25,
-15,
-22,
11,
7,
-23,
33,
-14,
-44,
63,
-16,
19,
24,
32,
21,
38,
0,
-9,
6,
-5,
31,
-14,
0,
67,
0,
57,
-11,
79,
17,
51,
49,
-3,
59,
8,
35,
-2,
-12,
-7,
-13,
-7,
-16,
22,
4,
-31,
-26,
1,
-21,
3,
22,
-3,
16,
-28,
-24,
47,
45,
-4,
-4,
-36,
17,
-3,
-9,
35,
-27,
1,
24,
19,
13,
45,
7,
-51,
40,
-50,
-2,
-17,
1,
-21,
5,
-64,
0,
-52,
16,
-12,
45,
-11,
-12,
-59,
10,
17,
17,
53,
-14,
21,
-19,
46,
-25,
34,
3,
8,
4,
-22,
32,
-4,
3,
63,
14,
4,
4,
-2,
57,
33,
-11,
42,
6,
-29,
1,
-20,
-39,
-20,
31,
36,
31,
2,
24,
24,
-16,
40,
-6,
49,
2,
-18,
-13,
-46,
0,
53,
-59,
-28,
-7,
12,
-62,
-4,
-44,
-21,
9,
-20,
30,
-31,
0,
8,
-36,
0,
-34,
-6,
3,
9,
-12,
-12,
-48,
-3,
-45,
-40,
-38,
39,
-9,
7,
12,
-1,
18,
-34,
13,
25,
-8,
-25,
-10,
-59,
-27,
-27,
32,
34,
12,
-8,
8,
-44,
6,
48,
-2,
-26,
-6,
-33,
44,
54,
38,
-44,
10,
-30,
73,
-69,
44,
12,
99,
-8,
-36,
28,
9,
46,
-46,
47,
-23,
-27,
26,
20,
14,
31,
-9,
-38,
-36,
2,
-7,
-3,
-36,
61,
38,
13,
-19,
-15,
-19,
59,
-30,
4,
39,
-32,
-24,
-14,
42,
-66,
29,
0,
4,
-43,
27,
49,
59,
19,
-10,
3,
40,
-45,
-25,
-5,
31,
-15,
15,
22,
2,
13,
30,
14,
-29,
-40,
17,
-29,
16,
-9,
25,
-12,
20,
16,
11,
-29,
-5,
62,
1,
-35,
-35,
40,
-15,
-33,
-17,
-38,
-36,
-36,
-6,
21,
-2,
-19,
-24,
-53,
-30,
3,
-23,
16,
-39,
3,
27,
56,
58,
3,
-48,
-25,
-6,
1,
64,
-6,
38,
-6,
2,
30,
16,
-12,
57,
0,
-13,
-21,
-21,
40,
-86,
-57,
-38,
-30,
56,
-26,
34,
26,
-7,
62,
-8,
-37,
-18,
-53,
18,
-45,
14,
-11,
-58,
20,
71,
42,
53,
-26,
48,
-6,
-35,
0,
-38,
-14,
-5,
-7,
-8,
-26,
26,
-32,
-65,
4,
28,
31,
-28,
34,
-6,
6,
8,
16,
0,
44,
0,
-5,
16,
26,
-23,
23,
1,
-23,
-21,
13,
2,
4,
-35,
-14,
-14,
23,
27,
-31,
10,
26,
-5,
-42,
-11,
-11,
-15,
40,
-11,
-11,
-7,
37,
16,
18,
-26,
-9,
39,
4,
16,
-15,
-5,
-28,
-13,
25,
-59,
7,
22,
-9,
40,
5,
-13,
-17,
20,
-51,
9,
-13,
9,
18,
-11,
-4,
27,
-30,
20,
15,
41,
-26,
25,
-16,
6,
5,
12,
26,
26,
25,
-22,
-27,
-68,
-30,
-10,
7,
-48,
28,
21,
-18,
58,
0,
-20,
58,
15,
21,
-7,
28,
-13,
40,
0,
25,
-8,
-3,
7,
-13,
50,
3,
-10,
5,
0,
-16,
-18,
-18,
-64,
69,
9,
32,
16,
25,
-10,
-2,
-26,
9,
-6,
39,
30,
-1,
-19,
6,
-38,
8,
-49,
14,
-19,
28,
32,
-8,
10,
13,
-40,
27,
78,
13,
3,
2,
-25,
0,
-38,
-60,
9,
-25,
34,
-24,
6,
6,
6,
8,
-8,
38,
-21,
-46,
34,
5,
43,
-15,
12,
-5,
-35,
16,
-1,
-10,
0,
43,
8,
29,
-34,
-12,
-23,
26,
-3,
-44,
-1,
15,
-45,
-11,
36,
-70,
-9,
46,
-37,
6,
0,
-1,
-3,
8,
-26,
-6,
-17,
-12,
18,
-18,
14,
-16,
21,
30,
21,
-16,
88,
-1,
-1,
16,
-32,
33,
15,
-20,
-32,
28,
-25,
-6,
-47,
5,
12,
13,
-23,
5,
-39,
13,
-29,
-18,
-62,
-47,
27,
5,
-5,
24,
-8,
-38,
30,
27,
23,
22,
27,
15,
4,
-28,
0,
-11,
39,
-14,
40,
10,
-45,
0,
-20,
19,
25,
-3,
-18,
-7,
49,
54,
-50,
-33,
7,
55,
-20,
-13,
9,
-3,
-34,
-10,
20,
60,
-24,
37,
3,
25,
-17,
-33,
-22,
1,
-41,
-57,
47,
-27,
47,
-6,
93,
-5,
8,
10,
-27,
36,
-27,
-2,
-25,
-11,
-46,
53,
28,
22,
-29,
-5,
22,
10,
-14,
4,
19,
5,
1,
-40,
-67,
1,
-10,
-6,
-36,
-2,
16,
-30,
-57,
-18,
5,
-2,
-37,
-8,
2,
-15,
57,
34,
-33,
-27,
49,
-14,
-17,
38,
2,
0,
-9,
-13,
-23,
3,
-9,
-17,
0,
-33,
29,
-1,
36,
1,
-3,
-64,
-38,
0,
-22,
24,
-23,
-16,
27,
45,
12,
-29,
-33,
-28,
-6,
-12,
10,
-2,
46,
-2,
-48,
-3,
5,
-16,
-6,
0,
-19,
17,
-44,
-9,
-18,
-41,
4,
-20,
-25,
-17,
26,
25,
20,
-28,
-32,
-17,
-30,
8,
0,
-10,
19,
-7,
-36,
0,
-8,
9,
-42,
12,
23,
-1,
0,
-16,
56,
5,
7,
-41,
-1,
15,
-33,
2,
21,
23,
-35,
-26,
-62,
13,
38,
-13,
29,
16,
-48,
-15,
-54,
29,
22,
20,
-42,
-12,
-9,
-44,
19,
-24,
35,
13,
46,
-25,
31,
24,
-18,
24,
26,
-28,
-11,
-37,
-18,
-4,
71,
-52,
33,
-18,
-6,
26,
-30,
15,
-56,
-67,
39
] |
Moore, J.
The relators ask for a writ of mandamus to compel the circuit judge to strike from the circuit court calendar for the May term a case, for the reason that it was improperly noticed. The notice was in proper form, but was not signed with the names of the attorneys for the plaintiff. The omission to attach the signatures of the attorneys before the words “Attorneys for Plaintiff” was undoubtedly an oversight. The record shows that the service was made personally by one of the attorneys for the plaintiff upon one of the attorneys for defendants. The circuit judge returns that, upon the hearing of the motion, the attorneys for the defendants did not claim they had been misled by the notice, but simply claimed it was not a legal notice; and that as they had not been misled, but fully understood, from the notice and the manner and circumstances of its service, that the attorneys for the plaintiff would bring the cause on for trial, he denied the motion.
The only question involved is, Must a notice of trial, to be a legal notice, be signed with the name of the attorney, or party giving the notice? 3 How. Stat. § 7551, provides that “ written notice of trial * * * shall in all cases be served at least 14 days before the first day of the term,” etc. We think this statute requires such a notice as will, upon its face, show it to be a notice made by a person authorized to give the notice. It should be a notice that will inform the person upon whom it is served of that fact, — whether it is served personally, or by mail, or by leaving it at his office, where service in that manner is authorized. It is doubtless the purpose of the statute, requiring the notice to be in writing, to avoid disputes as to what it contained and as to its sufficiency. In Niles v. Ransford, 1 Mich. 338 (51 Am. Dec. 95), in writing of a notice of sale authorized by the statute, it is said:
“No conception can be formed of a legal notice which does not disclose on its face that it emanates from some person or court claiming to have the power to act in the manner indicated by the notice. It is this that gives to it its force, — that makes it a notice.”
In Rogers v. Hoskins, 14 Ga. 166, it is said: “A notice in the name of nobody is no notice.”
We think to follow the ruling of the trial judge would result in what the statute sought to prevent by requiring the notice to be in writing.
The writ will issue as prayed.
The other Justices concurred. | [
2,
-18,
32,
-10,
0,
8,
41,
-10,
-17,
63,
46,
-43,
40,
41,
-24,
-30,
28,
-9,
25,
-57,
-16,
51,
36,
1,
-1,
-21,
-2,
-3,
14,
-6,
-28,
16,
-80,
8,
4,
-25,
40,
-15,
5,
12,
6,
44,
17,
-14,
-7,
-37,
9,
29,
8,
-15,
59,
12,
-6,
-18,
-32,
-23,
-59,
0,
5,
-11,
-2,
9,
-2,
1,
-57,
4,
-18,
-7,
2,
-26,
-35,
30,
15,
34,
4,
-58,
5,
-34,
-10,
25,
71,
-12,
-6,
-29,
41,
16,
0,
-41,
88,
-21,
0,
-3,
-82,
-58,
-2,
-18,
-22,
14,
18,
7,
37,
27,
-15,
-26,
-14,
3,
-23,
-56,
14,
36,
2,
42,
0,
2,
-35,
-30,
-14,
-7,
22,
-43,
21,
-36,
-4,
3,
19,
3,
20,
13,
6,
-3,
33,
24,
-13,
-24,
-11,
5,
7,
-30,
5,
-88,
-14,
-36,
32,
9,
-16,
-13,
23,
32,
-86,
55,
20,
20,
-15,
7,
-30,
6,
4,
-45,
14,
20,
77,
72,
-57,
-34,
-11,
46,
-66,
-45,
23,
-23,
21,
10,
-2,
7,
-16,
-41,
-1,
-8,
66,
-28,
2,
21,
-30,
1,
38,
25,
-47,
-13,
11,
-15,
10,
-28,
20,
-29,
44,
6,
-27,
10,
46,
-47,
-33,
-14,
-14,
6,
-32,
-5,
-2,
25,
32,
37,
-30,
13,
-37,
-23,
-23,
-28,
30,
-31,
-12,
28,
-73,
-24,
0,
-64,
-15,
2,
24,
-16,
-29,
9,
-25,
5,
-36,
35,
13,
-19,
13,
7,
34,
14,
-36,
33,
27,
-35,
22,
9,
32,
21,
-11,
-32,
-6,
32,
19,
2,
3,
-38,
-12,
30,
-61,
-13,
-27,
74,
-29,
-27,
-2,
-49,
62,
-8,
-38,
23,
-25,
-33,
-11,
23,
8,
-46,
20,
-23,
10,
-30,
47,
22,
-16,
44,
-26,
37,
9,
-24,
-10,
58,
-5,
2,
-1,
79,
3,
65,
15,
32,
12,
-14,
14,
22,
9,
41,
-69,
-50,
-63,
-21,
-47,
6,
12,
52,
-21,
9,
-35,
-1,
-40,
28,
27,
-51,
51,
43,
-5,
-21,
33,
-41,
54,
-35,
-17,
14,
33,
-16,
-13,
-14,
8,
44,
40,
-7,
-41,
-5,
-9,
-5,
5,
59,
-13,
37,
21,
12,
-32,
51,
-60,
-28,
-29,
-9,
7,
-48,
-50,
-39,
1,
-11,
22,
-48,
23,
-27,
22,
53,
-1,
36,
15,
43,
-9,
-7,
-25,
-68,
-58,
-35,
-10,
-3,
0,
19,
-91,
-40,
22,
54,
19,
27,
-47,
-27,
49,
27,
-20,
-12,
-8,
36,
3,
-3,
-34,
19,
3,
11,
-19,
15,
-40,
-27,
-26,
49,
-60,
5,
9,
47,
-25,
17,
4,
66,
-30,
-28,
28,
-18,
7,
-46,
-5,
-30,
-61,
-36,
-50,
34,
-7,
14,
7,
35,
-11,
38,
22,
23,
44,
76,
-26,
-26,
26,
-20,
13,
-39,
-71,
6,
-35,
-38,
12,
-55,
-19,
-18,
35,
24,
6,
-18,
4,
-56,
-2,
44,
-54,
-45,
43,
3,
-33,
-1,
29,
28,
-16,
1,
-48,
27,
-33,
-8,
55,
39,
-76,
15,
-44,
46,
49,
0,
-42,
11,
-12,
-16,
10,
-12,
12,
-46,
-3,
-26,
36,
7,
11,
8,
-41,
-3,
-36,
-41,
-75,
44,
31,
0,
16,
15,
20,
3,
16,
29,
34,
0,
-10,
11,
8,
16,
13,
49,
-3,
5,
4,
-5,
56,
-66,
-22,
-45,
-49,
-17,
37,
17,
-15,
-28,
32,
46,
34,
-7,
4,
19,
-32,
-22,
22,
14,
6,
51,
2,
29,
39,
38,
-28,
1,
5,
-35,
-9,
-16,
-23,
-16,
-18,
17,
-2,
10,
37,
-42,
19,
25,
39,
0,
66,
26,
-25,
-17,
-26,
-27,
-23,
-36,
0,
-1,
-32,
-5,
6,
-24,
32,
-37,
-17,
5,
-56,
-24,
-5,
-53,
0,
0,
23,
-56,
-46,
-26,
0,
3,
-5,
-21,
-3,
-74,
76,
55,
37,
31,
-4,
-32,
13,
-11,
11,
5,
-17,
9,
-19,
-17,
-62,
26,
-5,
-45,
-1,
0,
-2,
35,
25,
-1,
6,
46,
46,
-28,
16,
35,
27,
-35,
19,
3,
-14,
-52,
49,
-12,
-19,
-24,
22,
15,
-4,
12,
0,
-64,
51,
-2,
-71,
30,
50,
-17,
8,
40,
32,
-22,
11,
-33,
63,
5,
-7,
-7,
-19,
-70,
-9,
31,
13,
0,
-17,
25,
21,
1,
24,
26,
29,
-2,
-12,
-12,
65,
-40,
13,
9,
21,
1,
39,
-19,
11,
-8,
41,
-10,
-37,
53,
-29,
-22,
47,
10,
0,
-13,
1,
13,
31,
9,
11,
-24,
-1,
44,
-14,
-28,
-21,
-8,
41,
6,
-30,
20,
-35,
-13,
18,
26,
5,
41,
-1,
-1,
35,
27,
-17,
-4,
-8,
51,
58,
45,
-7,
6,
29,
-6,
-43,
14,
-16,
41,
21,
-61,
-18,
24,
17,
-35,
8,
-44,
-23,
11,
16,
-8,
10,
49,
51,
-34,
39,
26,
38,
19,
12,
-51,
4,
20,
22,
-33,
16,
-39,
-33,
27,
17,
14,
-7,
-3,
8,
-52,
32,
15,
-13,
64,
-16,
-43,
27,
-41,
-16,
34,
-29,
3,
33,
-46,
42,
3,
-6,
22,
106,
-10,
-39,
-3,
33,
2,
-36,
-8,
-18,
-4,
20,
-44,
41,
16,
-8,
-15,
14,
71,
73,
-17,
30,
26,
31,
1,
-41,
-11,
-32,
47,
0,
-37,
1,
34,
20,
-2,
21,
-40,
-46,
-15,
-4,
-7,
21,
-72,
71,
0,
22,
13,
-2,
30,
-11,
27,
10,
-11,
-13,
-3,
-10,
33,
-13,
16,
39,
-31,
54,
10,
-25,
-30,
-20,
-48,
1,
-42,
-2,
-27,
-6,
8,
25,
-82,
53,
-67,
-40,
5,
62,
-55,
-14,
-5,
2,
0,
-15,
-49,
0,
-36,
3,
18,
27,
0,
-8,
-18,
-20,
12,
5,
-57,
0,
17,
-2,
-5,
2,
60,
28,
15,
-21,
3,
17,
-5,
-45,
-35,
57,
36,
11,
9,
7,
-22,
-15,
-2,
44,
35,
-27,
-46,
-18,
-9,
4,
-25,
24,
-16,
23,
44,
-9,
-10,
21,
18,
16,
37,
21,
-18,
29,
-24,
8,
-7,
28,
-63,
32,
-37,
-35,
15,
-20,
12,
6,
-41,
-21,
23,
-53,
0,
-3,
0,
-62,
-47,
-9,
-6,
-50,
-1,
0,
12,
25,
27,
-37,
19,
-31,
-8,
9,
1,
-21,
0,
-19,
-31,
27,
11,
35,
0,
-1,
63,
11,
-23,
-1,
27,
-45,
-13,
4,
41,
15,
29,
12,
-5,
14,
-59,
20,
-6,
-19,
-20,
-4,
-15,
-17,
0,
-53,
36,
0,
61,
-8,
31,
6,
-29,
-18,
67,
-19,
-38,
-35,
-39,
58,
39,
-69,
10,
-11,
-41,
-23,
-11,
-13,
79,
-24,
21
] |
Grant, C. J.
The object of this bill is to set aside a lease made by the defendant Kirk to complainant David S. Phillips, and to restore a contract for the sale of the land covered by the lease, made by defendant Linn to the same complainant, and to obtain an accounting to ascertain the amount due on said contract. This contract was destroyed by the mutual consent of the parties at the time the lease was executed. Complainants assert that the contract was destroyed, and the lease executed, under a mistake as to their legal rights, which mistake arose from the erroneous advice of their attorney. Complainants’ counsel say in their brief: “This case is one that stands for the consideration of this court exclusively upon the facts.” Proofs were taken in open court, and the facts determined by the learned circuit judge against the complainants.
There is no principle involved which justifies a recital of the evidence. We have carefully examined the testimony, and are of the opinion that the circuit judge reached the correct conclusion.
Decree affirmed, with costs.
The other Justices concurred. | [
34,
18,
-21,
30,
-27,
-17,
31,
17,
18,
63,
37,
-3,
63,
-26,
1,
-39,
42,
64,
-8,
27,
11,
-5,
5,
12,
-1,
-53,
4,
-22,
-25,
2,
-8,
-14,
-26,
19,
-20,
19,
20,
21,
12,
-8,
40,
7,
14,
-38,
26,
30,
16,
-12,
30,
-18,
-37,
-9,
5,
-6,
7,
-36,
-5,
-29,
-21,
-18,
-19,
-46,
24,
31,
-2,
0,
-1,
-4,
38,
-50,
1,
52,
-20,
-32,
47,
-15,
-1,
-5,
-28,
-18,
34,
12,
55,
24,
10,
-15,
22,
-31,
-9,
12,
-53,
1,
-5,
-9,
-24,
-9,
51,
-13,
26,
-14,
-36,
-10,
-20,
-20,
24,
-45,
-35,
8,
49,
-5,
19,
-5,
31,
-9,
12,
-44,
-29,
2,
-24,
-55,
54,
22,
32,
0,
-48,
9,
6,
-79,
-45,
-2,
-5,
-67,
-29,
0,
55,
-5,
4,
-14,
0,
-4,
30,
27,
-17,
-7,
0,
57,
0,
21,
-24,
-48,
-23,
19,
48,
15,
18,
-30,
41,
20,
14,
-64,
72,
11,
-39,
-47,
-7,
17,
-35,
-18,
-21,
30,
43,
20,
-28,
-7,
16,
14,
6,
15,
-33,
-16,
-9,
-7,
-10,
-47,
-4,
3,
25,
-16,
14,
-24,
-13,
1,
-47,
-68,
15,
48,
-12,
23,
5,
-44,
-28,
-34,
-27,
10,
29,
-3,
17,
0,
6,
37,
-15,
31,
-17,
-56,
9,
27,
24,
-31,
-1,
-22,
15,
-19,
-28,
-3,
-61,
-94,
26,
-1,
0,
-39,
-44,
22,
-32,
-1,
9,
-12,
31,
-33,
35,
-6,
-28,
30,
-31,
-25,
25,
-19,
-62,
12,
6,
2,
-30,
15,
-10,
70,
16,
1,
23,
-5,
-71,
-1,
0,
1,
0,
-51,
20,
-12,
6,
-11,
25,
-9,
-17,
0,
13,
-9,
18,
-4,
-32,
-43,
-53,
-16,
15,
4,
-19,
-18,
-9,
-3,
4,
49,
31,
-15,
11,
-45,
11,
-26,
56,
13,
8,
37,
38,
-6,
12,
-32,
-15,
16,
-9,
3,
-10,
3,
-2,
-2,
-17,
61,
-15,
-35,
-16,
-4,
-25,
12,
7,
-44,
6,
6,
7,
-26,
7,
-4,
16,
-14,
-33,
15,
28,
14,
16,
-25,
24,
19,
8,
14,
-18,
20,
27,
14,
-11,
11,
24,
-16,
-17,
-20,
-45,
6,
-46,
1,
-33,
60,
-26,
-2,
19,
-14,
34,
-14,
10,
0,
-25,
-25,
11,
-5,
-38,
-26,
-1,
-34,
-27,
26,
4,
33,
-3,
-36,
60,
-29,
-32,
17,
42,
-8,
-19,
-28,
48,
-17,
0,
-13,
-8,
-21,
-11,
-32,
-1,
2,
28,
-4,
8,
16,
-19,
0,
-27,
-39,
-19,
-25,
-58,
41,
-32,
-6,
5,
20,
0,
25,
7,
6,
-11,
56,
3,
15,
9,
23,
5,
-27,
19,
-7,
-3,
-37,
64,
53,
-5,
26,
-37,
-3,
-12,
12,
-1,
0,
-55,
-77,
-75,
24,
0,
27,
-7,
38,
-28,
-2,
-10,
11,
0,
44,
4,
41,
50,
59,
-35,
41,
46,
-26,
4,
14,
47,
-15,
-1,
14,
5,
1,
-34,
-10,
-29,
-24,
-29,
22,
39,
24,
23,
0,
-24,
-32,
28,
27,
-3,
-15,
-14,
18,
-24,
10,
-12,
26,
-2,
7,
8,
14,
19,
-28,
-14,
-6,
9,
-13,
-27,
0,
-7,
37,
-61,
8,
15,
-47,
-4,
34,
8,
56,
-10,
1,
18,
13,
-16,
31,
39,
2,
-5,
-53,
56,
18,
-1,
-45,
-30,
-8,
35,
58,
33,
-2,
32,
8,
17,
-82,
-26,
17,
-7,
-23,
-2,
-27,
-49,
0,
-18,
66,
-10,
20,
-6,
-17,
23,
33,
7,
-16,
23,
-2,
-44,
68,
-21,
-13,
-19,
9,
20,
-22,
-11,
-32,
44,
59,
-3,
-34,
-3,
18,
20,
-19,
7,
-19,
16,
-34,
-37,
1,
10,
5,
-61,
3,
35,
-48,
-16,
-30,
26,
46,
-5,
5,
-76,
-9,
9,
-35,
-14,
-18,
33,
-24,
-4,
59,
-36,
-8,
-38,
7,
38,
2,
31,
-1,
-21,
-2,
11,
4,
0,
15,
15,
39,
9,
-4,
-13,
0,
11,
21,
8,
-40,
-1,
-6,
-8,
-20,
-1,
0,
-31,
-51,
-40,
-23,
-11,
21,
11,
-24,
8,
-42,
29,
6,
-32,
-27,
-13,
52,
-10,
38,
-4,
-18,
-19,
16,
50,
-9,
58,
21,
11,
-28,
26,
-23,
68,
-23,
-30,
52,
13,
-36,
50,
-38,
-15,
15,
3,
32,
54,
53,
53,
25,
31,
40,
-19,
-1,
12,
-10,
-1,
-39,
1,
7,
-25,
-45,
10,
49,
27,
-21,
14,
6,
-13,
-22,
28,
-3,
3,
7,
18,
-30,
-35,
10,
-3,
41,
-13,
3,
-13,
11,
51,
2,
-21,
-6,
1,
-12,
11,
36,
-3,
-21,
33,
-21,
-5,
-58,
-16,
-13,
26,
19,
23,
-42,
-29,
-8,
-12,
-12,
-50,
8,
27,
-25,
26,
-56,
-32,
67,
-2,
12,
8,
-2,
0,
30,
-23,
33,
52,
-56,
-48,
-1,
-45,
29,
-35,
-34,
0,
-14,
-10,
5,
-80,
-10,
21,
-10,
21,
-49,
6,
5,
-5,
-7,
2,
8,
-6,
1,
2,
24,
-20,
-10,
0,
-24,
-33,
23,
-39,
-22,
31,
-44,
-6,
61,
38,
-31,
13,
-7,
-13,
51,
30,
6,
-43,
-47,
19,
33,
-17,
32,
4,
60,
-61,
6,
-5,
-31,
-3,
1,
-15,
-27,
-14,
-37,
23,
10,
32,
-10,
29,
-11,
14,
-5,
20,
6,
4,
-18,
-19,
17,
29,
-63,
-3,
-6,
64,
-25,
-58,
17,
0,
-7,
-11,
-7,
14,
8,
4,
9,
-43,
-13,
-28,
9,
-25,
5,
17,
30,
-12,
-8,
22,
-27,
24,
-18,
3,
67,
26,
-20,
-3,
0,
27,
29,
16,
18,
-13,
22,
26,
55,
-21,
-26,
16,
-27,
20,
25,
10,
2,
-38,
15,
30,
14,
-20,
-6,
2,
20,
40,
9,
4,
15,
-10,
20,
34,
-45,
-3,
-28,
-16,
0,
35,
0,
-15,
-17,
0,
-13,
30,
-14,
4,
13,
-58,
-42,
-42,
32,
-39,
-2,
73,
14,
73,
27,
-1,
-15,
50,
-28,
-22,
7,
-28,
22,
-18,
8,
15,
-23,
21,
-22,
-15,
-1,
-12,
-11,
-6,
-52,
12,
20,
-25,
-3,
0,
-7,
-5,
29,
-26,
34,
32,
-2,
5,
13,
-65,
-10,
-63,
-40,
-15,
24,
14,
-17,
-15,
34,
21,
35,
-88,
0,
18,
-30,
-22,
33,
-7,
17,
-2,
21,
41,
-19,
10,
-34,
-6,
7,
-2,
48,
-13,
-22,
-33,
35,
37,
23,
25,
-3,
-17,
3,
-31,
-1,
31,
1,
-7,
20,
-25,
19,
-8,
-34,
14,
3,
24,
5,
-44,
16,
56,
0,
-14,
51,
-52,
-6,
8,
-25,
44,
-4,
6,
39
] |
Long, J.
On April 23, 1896, a decree of divorce was granted to complainant from the defendant. That decree provided that complainant have the custody of the two minor children. It also provided that the defendant pay to complainant $3,000, and certain costs of the proceedings, within 30 days,— complainant to release all interest in defendant’s property,— and, in default of payment of said $3,000 within that time, then that the property described as lot 12, block 6, of Wenham’s addition to the city of Grand Rapids, Kent county, Mich., be conveyed to complainant. These moneys not having been paid, the present bill is filed to compel the conveyance of •said property. An answer was filed to the presen] bill, •and replication thereto, and proofs taken in open court. The court decreed that defendant execute and deliver the deed, and that the decree stand as a conveyance, when ■duly recorded. From this decree the defendant appeals.
Counsel contend that the provision in the decree that defendant make, execute, and deliver a deed of conveyance •of the premises to the complainant is void, and a suit to ■enforce it cannot be maintained, on the grounds:
1. That the title to defendant’s real estate could not lawfully be taken from him, and transferred to the complainant, in this way.
2. That the particular property in controversy is defendant’s homestead.
3. That the property was conveyed to the parties as husband and wife, and he cannot be deprived of his interest therein.
4. That the court could not give to the wife, as alimony, the entire property of the husband.
The last point need not be discussed, as we are satisfied from the testimony that the husband had interests in ■other property, which he now controls, and which leaves him well provided for, aside from the property in controversy.
The court, in awarding alimony, may set off a portion of the husband’s estate to the wife. McClung v. McClung, 42 Mich. 53; Brick v. Brick, 65 Mich. 230. In the present case the property in controversy was held jointly by the husband and wife, and was of the value of $4,000. It was incumbered by a mortgage of $1,000. The other property of the husband the court below found to be of the value of $10,000, incumbered to the amount of about $2,000.
It is contended by the solicitor for defendant that while the court may award a suitable alimony, and may cause the rents of the real estate to be applied to the payment of alimony, it has no power to transfer title; citing Seibly v. Ingham Circuit Judge, 105 Mich. 584. In that case ,a decree of divorce was granted, and the decree contained the clause, “It is further ordered that the consideration of the question of alimony be, and the same is hereby, reserved for further order and decree herein.” Before any further steps were taken, the husband died, and the wife then petitioned to be allowed alimony out of the estate. It was held that the right to award alimony might be reserved by the court in its decree, but the order was vacated here because neither the heirs at law nor legatees were made parties, though without prejudice to the filing of a new petition. The question was not suggested that the title to the real estate could not be transferred by the order of the court of chancery, though it was said that the court might sequester it.
The fact that the title was held jointly by the parties has no force in the determination of the question here. The husband’s interest in the property was transferred to the wife by the terms of the decree, and could be transferred • the same as the title to any other property. The wife owned the other moiety.
We think it unnecessary to discuss the question of the homestead right, which counsel for the husband raise. The parties cannot live together. The wife has the custody of the children. It cannot be the home of both. The constitutional provision as to homesteads has no application here.
The decree must be affirmed.
The other Justices concurred. | [
-27,
29,
21,
10,
-16,
13,
14,
2,
25,
-3,
-10,
-26,
25,
-7,
-5,
-6,
-11,
-19,
-2,
27,
-51,
-1,
-14,
32,
32,
23,
20,
3,
-6,
-9,
-20,
-7,
-28,
76,
3,
-19,
-15,
-50,
13,
-16,
19,
-31,
-23,
18,
-20,
15,
18,
-48,
-10,
-16,
-54,
-16,
13,
-23,
56,
-17,
-23,
-17,
-5,
14,
5,
-8,
-68,
-9,
4,
13,
27,
-26,
0,
-37,
-1,
24,
34,
-22,
2,
-15,
29,
38,
-27,
24,
4,
-43,
-3,
-40,
9,
-30,
-28,
0,
-44,
12,
-52,
7,
-20,
-5,
17,
-2,
21,
25,
-7,
61,
0,
22,
28,
37,
-8,
24,
13,
10,
-12,
-18,
-13,
-43,
53,
-17,
-33,
-6,
-32,
0,
-27,
-21,
27,
-1,
37,
-6,
30,
2,
-26,
-10,
25,
-29,
12,
8,
-33,
0,
23,
-28,
24,
4,
27,
-12,
34,
-49,
14,
-45,
5,
9,
-10,
-8,
-10,
-47,
-45,
4,
-11,
39,
38,
-27,
16,
-40,
42,
-16,
31,
12,
-7,
-9,
-23,
-40,
-52,
14,
-2,
36,
40,
32,
-50,
-20,
6,
-9,
12,
-24,
-13,
-15,
36,
59,
35,
-19,
9,
5,
-40,
2,
-61,
-11,
-27,
-4,
8,
1,
-13,
39,
26,
1,
22,
22,
-4,
-55,
-26,
55,
-3,
16,
75,
20,
-31,
11,
-15,
43,
-22,
-14,
-35,
-6,
0,
0,
-47,
-18,
46,
21,
1,
1,
-38,
-68,
4,
16,
-26,
15,
21,
24,
-9,
-29,
-8,
-28,
-9,
36,
-4,
36,
-3,
0,
-24,
-29,
43,
37,
0,
-11,
-1,
23,
-3,
0,
-55,
42,
26,
20,
5,
21,
34,
0,
8,
32,
-29,
-2,
17,
2,
7,
14,
-6,
14,
22,
7,
24,
-26,
-24,
-14,
-20,
3,
-25,
4,
-7,
-20,
-29,
39,
-6,
37,
-19,
28,
22,
36,
-1,
-35,
-15,
-15,
0,
4,
-1,
-10,
-1,
23,
-6,
-23,
31,
28,
-26,
3,
-35,
-3,
-7,
-50,
20,
18,
37,
-18,
4,
37,
-57,
-26,
36,
-20,
14,
9,
-17,
-41,
-5,
24,
52,
-15,
-40,
27,
-9,
-2,
1,
-1,
56,
3,
-3,
-20,
3,
-43,
27,
-20,
20,
20,
45,
13,
-30,
-7,
5,
12,
-21,
0,
-32,
71,
-41,
4,
-10,
-35,
-51,
17,
-8,
9,
-23,
-37,
-11,
26,
-13,
-33,
44,
-1,
9,
16,
-34,
60,
-11,
23,
-3,
-23,
-10,
26,
0,
34,
15,
57,
24,
19,
-69,
-32,
-3,
-17,
-8,
-5,
-8,
-15,
22,
-9,
0,
-20,
-48,
9,
-5,
-5,
7,
18,
-23,
0,
11,
-15,
-20,
17,
11,
-20,
6,
-15,
31,
0,
42,
-20,
32,
-3,
-6,
20,
15,
-13,
-10,
-16,
8,
-17,
-9,
31,
-12,
51,
49,
3,
57,
9,
-17,
-6,
-26,
33,
-14,
57,
33,
26,
-11,
6,
-28,
-46,
35,
10,
32,
-25,
-32,
39,
-27,
-45,
13,
-4,
15,
3,
60,
-17,
16,
6,
-13,
-8,
-51,
-14,
7,
-3,
-31,
-1,
1,
12,
-7,
30,
-10,
11,
-17,
25,
-8,
6,
-53,
-14,
-5,
9,
-63,
-12,
-59,
-33,
41,
-31,
4,
17,
1,
-61,
16,
-15,
18,
-1,
49,
18,
48,
15,
10,
-18,
-28,
27,
-18,
58,
-9,
-33,
29,
40,
2,
20,
25,
-11,
36,
-2,
22,
-1,
-26,
-27,
14,
-17,
51,
18,
-25,
0,
1,
42,
-5,
-15,
6,
38,
13,
-14,
8,
-23,
-13,
18,
53,
45,
-4,
41,
17,
-24,
-1,
2,
-26,
-42,
-1,
-22,
31,
-13,
36,
-2,
13,
-10,
-9,
-3,
0,
-39,
30,
-36,
38,
-33,
-39,
-20,
11,
-24,
8,
-21,
-6,
-16,
4,
-18,
-33,
28,
-24,
-18,
-14,
-20,
29,
-13,
-13,
20,
34,
0,
-4,
66,
-18,
-9,
11,
-45,
42,
39,
24,
12,
-7,
-11,
-16,
-9,
-22,
7,
-28,
16,
19,
-19,
-1,
24,
27,
47,
32,
53,
-16,
-49,
0,
33,
8,
0,
43,
-20,
-29,
-40,
23,
19,
-56,
-7,
4,
-1,
27,
34,
8,
7,
20,
-12,
8,
-43,
15,
52,
-60,
4,
-3,
-30,
-30,
-5,
-19,
-32,
-18,
19,
0,
-12,
45,
-19,
26,
-23,
11,
21,
31,
-24,
12,
51,
12,
-13,
35,
29,
-8,
24,
11,
-22,
42,
38,
19,
14,
-18,
47,
61,
2,
6,
5,
-13,
39,
1,
5,
-4,
-16,
12,
31,
-4,
-39,
0,
52,
-3,
27,
12,
52,
40,
44,
25,
18,
-18,
2,
-37,
22,
-7,
15,
-37,
-19,
-9,
12,
2,
-30,
-5,
6,
81,
-20,
-37,
-10,
-11,
17,
-24,
-57,
16,
-8,
-3,
-31,
-37,
-18,
1,
12,
-24,
4,
-47,
14,
4,
28,
-37,
-44,
-13,
-18,
0,
-11,
-3,
10,
0,
3,
-6,
-2,
24,
14,
-10,
17,
-37,
-18,
7,
-6,
-13,
-3,
-10,
35,
-12,
-16,
-44,
-42,
-42,
-5,
29,
-50,
2,
-28,
-22,
-19,
22,
-39,
-4,
24,
-7,
-70,
20,
-35,
11,
-12,
-7,
-62,
34,
-47,
32,
42,
-18,
-82,
36,
5,
-23,
5,
-19,
-20,
-35,
-56,
-7,
44,
-7,
-24,
-33,
49,
-41,
9,
-39,
15,
23,
-9,
-6,
-22,
0,
-8,
-44,
32,
8,
-15,
21,
-28,
4,
-23,
-2,
-25,
8,
32,
-32,
10,
45,
-24,
16,
11,
-2,
-26,
44,
-17,
8,
-13,
27,
-47,
-57,
-10,
55,
12,
7,
-9,
21,
-26,
-25,
-39,
-32,
12,
-10,
-38,
-5,
43,
29,
19,
-8,
3,
-22,
-21,
39,
-17,
-25,
-21,
32,
-30,
7,
-32,
-27,
-8,
-6,
24,
26,
-20,
-8,
48,
17,
-13,
-33,
31,
-42,
24,
13,
-15,
-46,
31,
-3,
-21,
9,
-14,
-29,
2,
9,
-51,
16,
-37,
-44,
-23,
-34,
15,
33,
-8,
-26,
66,
18,
30,
7,
-16,
-38,
-25,
-26,
-15,
6,
21,
-29,
-8,
7,
13,
-50,
14,
-22,
-29,
-15,
-11,
-5,
39,
-11,
-13,
-34,
-30,
28,
-13,
0,
8,
50,
-28,
10,
7,
0,
27,
9,
15,
29,
-21,
9,
10,
-65,
31,
20,
29,
-22,
0,
-40,
-28,
-8,
-35,
-26,
37,
18,
-37,
2,
6,
52,
39,
-15,
-9,
-22,
-43,
-16,
-18,
8,
12,
42,
23,
-1,
-30,
38,
0,
-37,
33,
12,
-11,
5,
0,
-44,
-18,
22,
5,
24,
23,
4,
1,
0,
-30,
-11,
-3,
1,
-13,
24,
-4,
17,
-59,
34,
16,
5,
6,
-40,
3,
39,
57,
-1,
39,
-13,
12,
31,
-10,
21,
-7,
14,
17
] |
Hooker, J.
This action was commenced in justice’s court, and appealed to the circuit. The plaintiffs recovered in both courts.
The declaration was written, and alleged that in September, 1895, the defendant—
“Was indebted to the plaintiffs in the sum of $100 for a certain team of horses obtained from the plaintiffs at the special instance and request of the defendant, and, being so indebted, the defendant, in consideration thereof, afterwards, to wit, on the same day * * * and place, undertook and * * * promised * * * to pay unto the said plaintiffs the said sum of money; * * * and * * * at the same time and place * * * the said defendant, in payment of said indebtedness, delivered to the plaintiffs a certain promissory note, signed by one William H. Burden, by which said note the said Burden promised to pay to the said defendant *. * * or order, * * * November 1, 1895, * * * the sum of sixty-two and 50-100 dollars, for value received; and the said defendant * * * afterwards ' * * * indorsed the said note, in writing, * * * to the said plaintiffs; and the said defendant, well knowing that the said note was not good, was uncollectible, and that the maker thereof was irresponsible, undertook and promised to the plaintiffs that said note was a good note, and that the maker thereof was perfectly good and financially responsible; that the said note was secured by a real-estate mortgage; that the said real estate was worth a good many times the amount of the note, and guaranteed the payment of the said note; and the said plaintiffs aver that they, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, * * * accept the said note of the said defendant in payment of the said indebtedness due them from the said defendant. Yet the said defendant did not perform his said promise or undertaking, but thereby craftily and wrongfully deceived the said plaintiffs in this, to wit, that the said note, at the time of the making of the said promise and undertaking of the said defendant as aforesaid, was not good, but, on the contrary, was, at the time aforesaid, of no value whatever to the said plaintiffs, * * * and is at the present time utterly worthless, * * * and said note * * * was presented to said Burden * * * for payment, * * * but neither the said Burden, nor any person or persons on behalf of the said Burden, did or would * * * pay the said sum of money, * * * to plaintiffs’ damage,” etc.
The opening by the plaintiffs’ counsel was, in effect, that the defendant was a horse dealer, and received two ponies belonging to the plaintiffs, upon his agreement to ship them north, and sell them, and return to the plaintiffs $60 in money, if sold for cash, and the same amount in good, bankable paper, if sold on time; that he afterwards delivered to the plaintiffs the note described in the declaration, representing the same to have been received for said ponies, and to be good, collectible, and bankable; and that it was not such paper, as defendant well knew. Objection was made to the testimony on the ground that the case as stated was a variance from the case stated in the declaration, and the same was claimed as to the proof made. The judge .permitted the jury to find a verdict for the plaintiffs, and the defendant appealed.
It is admitted by both parties that the defendant did not purchase the horses, but, on the contrary, that he was to sell them in the capacity of agent of the plaintiffs. He did dispose of them, and the plaintiffs now claim that he did not deliver to them, and in fact did not obtain, the kind of paper for which he was authorized to sell them; that they accepted the paper which he did take upon false representations. If this is true, the plaintiffs might have returned the 'note, and sued the defendant upon the breach of his undertaking, and the measure of damages would have been $60. This was evidently the theory upon which they were permitted to recover, as the evidence conclusively showed that the defendant did not purchase the ponies. As the note indorsed by the defendant was without recourse, the recovery could not have been upon his indorsement, while his guaranty was oral, and no claim is made upon it. In his charge the court instructed the jury that, if they should find that the defendant took the ponies, promising to sell them for cash or good, bankable paper, and in fact sold them for paper which was not good and- bankable, or if the agreement was that they should be sold for cash or good, collectible paper, and the paper taken was not good, collectible paper, the plaintiffs would be entitled to their verdict. He proceeded as follows:
“Another matter which you will consider, and the third, would be what representations were made, if any, at the time the paper was turned over to Mr. Cavanaugh. If you find that the defendant represented that the paper was such as he had agreed to take, and that the agree ment was as the plaintiffs claim,, and that it was not bankable paper, then you should find in favor of the plaintiffs. If you find that he made no representations whatever concerning it, that he turned it over simply under the bargain, then, as I have said, if the bargain was as defendant claims, and the paper was of a sort that he claims it to have been, then you should find for the defendant.”
It is obvious that the real cause of action here was the failure of the defendant to perform his contract, not his representation that he had performed it, or that the paper taken was good, bankable, dr collectible paper, though the representations were admissible as explanatory of the plaintiffs’ conduct in receiving the paper. But the declaration does not state such a cause of action. It alleges first that the defendant was indebted in the sum of $100 for horses obtained from the plaintiffs at his request, and that he promised to pay that sum for them, and that he afterwards delivered the note in question in payment, which the plaintiffs were induced to accept by his false representations, whereby they were injured. We are reluctant to reverse this judgment, but cannot sustain it without doing violence to the well-settled rule that the pleadings must contain a substantial statement of the cause of action proved. The contract proved is not mentioned in this declaration, while another and entirely different contract is set up. The delivery of the note and the false representations may be said to be alleged substantially as proved, but the necessary facts upon which a right of action for deceit can be predicated are not alleged as proved. .
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
-8,
7,
33,
36,
-24,
-19,
44,
-35,
29,
-22,
0,
-27,
-20,
71,
24,
-39,
38,
-72,
10,
10,
-74,
-43,
-15,
-14,
49,
10,
70,
18,
25,
-23,
6,
45,
-12,
32,
7,
-24,
9,
4,
-19,
-1,
-26,
39,
32,
-21,
2,
-25,
-17,
-62,
-15,
-69,
18,
-28,
10,
-9,
-46,
7,
-12,
-14,
-50,
-5,
-11,
-46,
33,
-4,
-39,
-2,
-38,
-13,
-26,
-10,
17,
29,
-3,
-25,
-19,
-55,
10,
-17,
-24,
11,
6,
-28,
16,
9,
-36,
-14,
26,
-59,
26,
-2,
-28,
1,
-16,
27,
-35,
37,
2,
26,
-27,
27,
-20,
-24,
-32,
27,
7,
16,
-40,
-97,
-57,
50,
-39,
49,
34,
-45,
-6,
-20,
-60,
-21,
-9,
-28,
-35,
-16,
14,
-21,
-29,
28,
-34,
8,
-9,
27,
28,
-56,
-39,
-24,
0,
-16,
-12,
-53,
36,
3,
15,
15,
-59,
-32,
7,
-3,
18,
2,
-42,
11,
4,
-13,
-26,
33,
33,
-8,
-15,
-15,
8,
-13,
36,
-18,
-17,
-37,
-3,
17,
-25,
5,
5,
7,
55,
31,
-63,
-22,
27,
-38,
-2,
8,
-13,
-34,
31,
-1,
12,
1,
7,
-24,
28,
22,
9,
34,
24,
-44,
-37,
19,
-14,
0,
6,
-46,
3,
27,
16,
-8,
-1,
-1,
-17,
-8,
35,
-52,
-22,
-3,
-20,
6,
-5,
16,
-8,
10,
33,
-56,
-8,
25,
-40,
33,
-32,
-1,
2,
-13,
0,
19,
7,
4,
-20,
15,
6,
16,
-39,
-35,
-6,
38,
9,
3,
-59,
2,
-15,
-86,
6,
-22,
-41,
-26,
16,
31,
23,
40,
-17,
29,
-12,
-27,
14,
-21,
-24,
1,
9,
39,
-33,
14,
26,
0,
15,
0,
-7,
12,
24,
-7,
-4,
65,
18,
-24,
3,
-5,
-50,
-13,
49,
9,
-10,
-20,
-2,
-34,
0,
8,
-22,
-7,
-6,
0,
42,
10,
41,
10,
-43,
7,
25,
0,
-17,
-39,
65,
-4,
32,
3,
25,
20,
-28,
-43,
-10,
17,
9,
-40,
6,
-4,
-26,
-19,
-2,
15,
-16,
14,
-10,
11,
82,
-18,
40,
-28,
28,
34,
10,
-24,
2,
-20,
-17,
41,
33,
19,
-69,
-21,
42,
31,
16,
10,
-38,
13,
-58,
-18,
-23,
50,
-43,
-16,
-18,
-15,
-5,
12,
28,
6,
7,
66,
32,
3,
-16,
-4,
49,
-17,
-38,
8,
-28,
19,
24,
20,
-10,
-38,
24,
3,
-2,
33,
-29,
45,
-2,
-27,
-9,
4,
32,
-44,
-31,
13,
-14,
-39,
-57,
47,
56,
59,
55,
-35,
-23,
-56,
-33,
-40,
-26,
7,
57,
-42,
-70,
5,
33,
-34,
-21,
23,
0,
-30,
22,
4,
-5,
15,
18,
9,
-7,
-15,
105,
10,
28,
-12,
38,
-36,
52,
-26,
-75,
0,
3,
2,
12,
-6,
28,
39,
-7,
13,
3,
-10,
23,
24,
-6,
48,
4,
-35,
32,
-14,
17,
22,
27,
-71,
8,
36,
-48,
36,
51,
-36,
2,
4,
8,
0,
20,
15,
44,
5,
21,
3,
-14,
-23,
-27,
0,
40,
14,
-16,
3,
7,
15,
-14,
46,
-16,
8,
1,
-26,
26,
4,
-17,
-46,
-2,
24,
22,
7,
-17,
2,
27,
45,
-56,
-8,
-12,
59,
-16,
-9,
42,
3,
9,
-8,
9,
-37,
0,
35,
1,
23,
20,
-22,
10,
51,
0,
-28,
-18,
24,
37,
-1,
-70,
-12,
-36,
20,
52,
34,
5,
-41,
1,
18,
11,
-26,
-7,
-25,
16,
45,
9,
-25,
-39,
0,
67,
49,
-35,
0,
32,
-32,
0,
27,
8,
-8,
50,
43,
-13,
68,
-29,
-40,
15,
-18,
1,
12,
17,
-15,
47,
-26,
49,
-5,
-3,
12,
5,
0,
4,
22,
-7,
-13,
-33,
-13,
7,
-14,
4,
21,
-25,
-41,
-12,
17,
-1,
31,
-23,
-1,
2,
11,
-23,
-14,
23,
1,
-49,
-9,
1,
38,
-19,
-16,
-42,
1,
-30,
-46,
-17,
27,
-32,
43,
15,
22,
8,
46,
11,
-28,
5,
-22,
29,
10,
-8,
43,
-22,
50,
53,
-23,
-25,
-37,
28,
-26,
8,
-31,
-7,
62,
-33,
-7,
-16,
51,
-18,
22,
-48,
18,
-49,
-24,
-26,
-1,
-62,
8,
44,
-31,
-32,
10,
62,
-46,
-5,
-49,
-21,
-22,
-12,
-22,
5,
-15,
-3,
38,
16,
0,
48,
-2,
-40,
3,
97,
-31,
14,
3,
40,
-18,
30,
16,
27,
-26,
12,
3,
46,
1,
13,
16,
-49,
13,
-10,
24,
-1,
11,
24,
11,
-8,
8,
68,
-9,
-25,
0,
14,
-23,
10,
65,
54,
-24,
-3,
-6,
16,
-27,
56,
-20,
-6,
-11,
3,
5,
-5,
73,
-42,
-50,
14,
-5,
48,
-51,
0,
-8,
0,
12,
-15,
15,
16,
27,
-19,
33,
-19,
35,
-10,
-32,
4,
-3,
-10,
-12,
14,
6,
-29,
-10,
-16,
7,
12,
14,
32,
-12,
-18,
-21,
46,
-4,
-58,
-18,
-12,
-18,
-25,
15,
14,
-2,
-3,
51,
-12,
-33,
38,
-54,
-29,
5,
-32,
-41,
46,
22,
16,
0,
-17,
-18,
-3,
-22,
-3,
73,
-11,
19,
-5,
23,
34,
50,
15,
-35,
-11,
-38,
-33,
21,
21,
14,
-44,
-25,
29,
-38,
-30,
17,
-34,
-22,
24,
1,
-13,
18,
-61,
-10,
-45,
-71,
6,
34,
-19,
-15,
1,
-11,
-48,
56,
-4,
52,
6,
-2,
-27,
4,
16,
19,
26,
-77,
-38,
14,
-13,
18,
-1,
-24,
-36,
60,
-24,
-38,
-13,
18,
41,
-3,
5,
32,
-27,
-38,
20,
6,
3,
36,
-54,
-42,
-10,
-16,
-37,
-17,
5,
-43,
-32,
-4,
15,
-23,
-15,
13,
15,
2,
26,
11,
-81,
-2,
25,
31,
60,
-29,
27,
-12,
-83,
4,
-45,
38,
-57,
-4,
17,
-45,
-9,
16,
8,
4,
0,
8,
31,
-14,
-16,
-17,
78,
5,
-38,
18,
56,
-31,
-10,
-22,
11,
-1,
11,
28,
66,
-39,
14,
-18,
-25,
35,
-24,
-13,
9,
29,
48,
39,
6,
18,
24,
9,
38,
21,
-3,
42,
-1,
10,
-12,
12,
1,
2,
-4,
-32,
53,
2,
52,
-12,
9,
-16,
-2,
-6,
-18,
-10,
29,
35,
-26,
47,
9,
71,
-5,
-31,
-23,
14,
-14,
-22,
10,
6,
-12,
-23,
-14,
11,
-37,
25,
-4,
-39,
-21,
7,
-36,
-68,
-27,
-28,
44,
-15,
-14,
-29,
49,
-50,
-44,
55,
-17,
10,
20,
-23,
-51,
1,
30,
36,
0,
-9,
22,
-16,
-8,
1,
-3,
-23,
-25,
-21,
7,
22,
-3,
-41,
55,
26,
-2,
-31,
-15,
0,
35,
23,
-4,
13,
8,
1,
48,
11,
6,
9,
37,
57
] |
Grant, C. J.
I think the court was correct in directing a verdict. The sidewalk was in a condition in which the city had a right to leave it. If there had been a plank or stone walk of the same incline as the ground, it would have been equally, if not more, dangerous. It was not unsafe or dangerous in its original condition. It was made unsafe solely by the accumulation of ice and snow. Sidewalks and streets must have inclines, and, whatever may be the decisions of the courts of other States, it is settled in this State that municipalities are not liable for accidents caused by the natural accumulations of ice and snow. Gavett v. City of Jackson, 109 Mich. 408 (32 L. R. A. 861); Hutchinson v. City of Ypsilanti, 103 Mich. 12. See, also, authorities cited in these two cases. All inclined sidewalks become dangerous for pedestrians when covered with ice. All the law requires is that the municipality shall keep them otherwise in a reasonably safe condition.
The judgment is affirmed.
Hooker and Long, JJ., concurred with Grant, C. J. | [
-12,
77,
-1,
-29,
-56,
32,
30,
59,
32,
47,
-11,
-2,
75,
-55,
-11,
-46,
-48,
16,
-54,
60,
-51,
5,
-2,
-57,
-32,
1,
75,
-11,
32,
62,
68,
-27,
34,
18,
-18,
49,
48,
62,
61,
22,
52,
-21,
-19,
24,
0,
22,
36,
-26,
9,
-36,
-18,
68,
-36,
-25,
45,
49,
-5,
39,
-66,
-6,
-31,
16,
5,
20,
31,
-21,
-35,
4,
7,
-33,
-50,
68,
-4,
-37,
25,
63,
-6,
45,
-64,
14,
-13,
27,
31,
20,
15,
-14,
0,
-4,
23,
-15,
34,
-24,
34,
-17,
-20,
57,
21,
-9,
7,
0,
-35,
5,
40,
20,
-15,
-64,
19,
-42,
8,
26,
-5,
51,
10,
24,
-20,
-20,
50,
21,
-36,
14,
7,
-30,
-26,
12,
-50,
-10,
-8,
9,
-30,
-37,
-22,
0,
-9,
53,
13,
7,
-43,
39,
54,
3,
6,
18,
-3,
-35,
-32,
-34,
5,
31,
-46,
-4,
-23,
14,
11,
-75,
-13,
28,
20,
-6,
75,
1,
29,
8,
-17,
-27,
-45,
-17,
-39,
36,
2,
64,
68,
-31,
25,
-52,
64,
42,
-43,
38,
15,
-5,
6,
3,
71,
-18,
-42,
-43,
-45,
-16,
14,
-15,
-35,
-14,
-47,
-39,
0,
14,
11,
20,
-18,
-83,
-31,
28,
-58,
-40,
10,
-22,
-14,
-3,
25,
37,
12,
16,
-3,
-38,
21,
18,
0,
-50,
-3,
0,
42,
22,
9,
9,
-7,
-1,
-26,
-8,
-69,
-23,
2,
20,
11,
-22,
89,
56,
30,
22,
-5,
-39,
52,
73,
-50,
-23,
-14,
12,
-60,
-35,
17,
9,
19,
-47,
-16,
-5,
-23,
16,
28,
-17,
-33,
-53,
53,
54,
0,
-55,
43,
72,
-19,
84,
-35,
-36,
-21,
13,
-44,
6,
-33,
-31,
22,
-15,
-10,
53,
-22,
7,
27,
-12,
-29,
52,
-53,
34,
7,
-11,
95,
-49,
20,
60,
-1,
17,
40,
12,
-30,
-22,
41,
48,
-8,
61,
42,
28,
6,
8,
18,
31,
31,
-9,
-47,
28,
-4,
33,
-15,
-18,
74,
0,
7,
10,
10,
-69,
-56,
20,
1,
-34,
-24,
17,
30,
7,
-19,
41,
30,
27,
58,
-48,
-14,
0,
-42,
4,
15,
-76,
-22,
7,
-40,
16,
24,
28,
-36,
43,
24,
-16,
18,
20,
7,
-19,
6,
-27,
46,
-34,
24,
7,
-5,
-30,
19,
-44,
-11,
35,
-38,
-31,
-17,
41,
-25,
-43,
51,
0,
-2,
0,
17,
-22,
17,
0,
-10,
32,
-31,
-4,
-34,
-1,
-15,
-25,
12,
-12,
-44,
-26,
-3,
14,
-31,
-28,
-33,
33,
33,
13,
-19,
-29,
2,
-26,
4,
-4,
-26,
-9,
45,
-45,
-25,
33,
55,
16,
-42,
54,
-18,
23,
3,
-1,
-15,
-30,
-5,
44,
10,
6,
22,
-24,
27,
-46,
-40,
-34,
0,
-65,
-52,
-51,
-22,
-36,
24,
-17,
-30,
-5,
-4,
50,
-53,
-14,
40,
-2,
-13,
44,
-30,
20,
-18,
-56,
61,
-55,
18,
4,
-46,
0,
31,
-38,
-88,
7,
-9,
-20,
0,
-13,
26,
11,
42,
-2,
-14,
0,
-28,
23,
-5,
-29,
34,
43,
-45,
-40,
86,
40,
-12,
14,
41,
53,
-10,
-44,
1,
5,
12,
34,
-16,
-29,
-13,
8,
-51,
-12,
42,
-32,
20,
0,
5,
0,
-12,
-15,
-13,
34,
-9,
28,
19,
-15,
-34,
-35,
-9,
-37,
-48,
-28,
8,
2,
-12,
-1,
-26,
-5,
39,
10,
-7,
-20,
37,
13,
-16,
25,
49,
-7,
-16,
-21,
0,
3,
-8,
2,
1,
60,
55,
3,
0,
-12,
-55,
-12,
-6,
-28,
-42,
-6,
-4,
0,
-41,
63,
20,
2,
13,
55,
30,
-31,
30,
-57,
-6,
-39,
-4,
-33,
-66,
-16,
-15,
16,
-24,
-7,
-3,
19,
-80,
-41,
0,
20,
-21,
5,
11,
12,
-11,
13,
2,
-15,
-39,
-1,
1,
20,
15,
-17,
4,
18,
-36,
6,
78,
-14,
20,
-75,
22,
-13,
14,
-32,
-5,
7,
-38,
27,
7,
5,
23,
-10,
-33,
3,
22,
-34,
-32,
44,
8,
40,
-41,
-23,
-27,
46,
9,
17,
-36,
-10,
47,
-10,
1,
18,
-34,
10,
-35,
-10,
34,
48,
-55,
79,
-20,
14,
21,
13,
-12,
-47,
26,
0,
-12,
-10,
-45,
-8,
0,
20,
5,
36,
-74,
15,
-42,
5,
-2,
-29,
4,
39,
5,
-7,
32,
-3,
-8,
24,
-16,
27,
-26,
-23,
21,
-13,
17,
1,
-4,
36,
27,
-20,
-12,
31,
57,
-7,
-17,
24,
57,
24,
9,
-15,
6,
18,
13,
0,
-63,
6,
-4,
-12,
-5,
29,
21,
67,
-16,
17,
0,
53,
-19,
-23,
0,
-4,
-23,
-43,
-10,
-65,
38,
-27,
-18,
0,
-34,
54,
-28,
-28,
-6,
9,
-8,
2,
-12,
5,
87,
-94,
10,
27,
3,
-1,
-81,
13,
61,
-5,
-13,
-13,
29,
-41,
15,
-35,
-37,
-70,
-2,
19,
-38,
-13,
2,
-52,
10,
14,
-9,
-18,
50,
6,
-1,
-20,
-24,
10,
0,
15,
-31,
-4,
-7,
-45,
30,
-1,
-44,
-34,
-16,
10,
23,
18,
-10,
-1,
11,
18,
9,
80,
-17,
51,
-6,
1,
-38,
-31,
42,
5,
-27,
-34,
-9,
-15,
5,
8,
-43,
33,
52,
-6,
32,
-59,
-20,
-2,
-12,
30,
43,
29,
11,
-27,
44,
18,
-15,
-40,
46,
-8,
23,
-37,
38,
-41,
25,
12,
-18,
19,
-9,
3,
-24,
2,
104,
-13,
18,
20,
-15,
44,
0,
3,
-41,
-32,
-9,
41,
-22,
5,
39,
3,
37,
14,
-33,
3,
45,
46,
3,
25,
-35,
-34,
26,
2,
0,
4,
-5,
41,
-31,
49,
71,
-21,
-62,
48,
-8,
-71,
-45,
-30,
43,
10,
34,
17,
0,
-29,
-44,
-18,
40,
41,
31,
16,
5,
31,
-59,
-12,
-70,
31,
56,
-24,
-19,
-8,
11,
-4,
-32,
-4,
-14,
14,
32,
20,
-3,
-51,
16,
-36,
-7,
11,
-69,
30,
19,
-22,
7,
70,
14,
-18,
-56,
21,
-51,
-4,
-21,
2,
-71,
-14,
17,
34,
-9,
14,
-18,
-32,
-67,
-54,
19,
-15,
22,
24,
-41,
-44,
-19,
-7,
-21,
-24,
59,
5,
-45,
24,
-20,
-22,
-98,
6,
-7,
7,
-43,
-12,
38,
13,
23,
25,
62,
-70,
5,
-17,
-39,
-24,
18,
-7,
27,
9,
-23,
-42,
-15,
-43,
-39,
13,
11,
-2,
-42,
29,
0,
-4,
-63,
-4,
-32,
-13,
78,
-39,
-49,
-40,
-84,
50,
-13,
-49,
55,
17,
-5,
7,
0,
12,
76,
10,
9,
-22,
-55,
-8,
25,
49,
15,
26,
-30,
16,
15,
-10,
27,
9,
11,
24
] |
Moore, J.
This is a petition for a mandamus to require the respondent to vacate an order made by him. The petitioners were appointed by the circuit court for the county of Saginaw, in chancery, receivers of the Union Street-Railway Company of Saginaw, Mich., upon the application of the Boston Safe-Deposit & Trust Company, complainant in a cross-bill in Union Street-Ry. Co. v. City of Saginaw, 115 Mich. 300. The receivers were directed to take control of the road, and operate the same. At this time there was in the employ of the road, as a street-car conductor, John C. Smith, and he continued to act in that capacity after the appointment of the receivers. About April 1st the receivers adopted the Mehling box system of collecting car fares from passengers. This box is a metal'safe, of convenient size, carried by the conductor, into which the passenger is required to deposit his fare, at which time the conductor presses a button which rings a bell and registers the fare. At the end of the day the box, with the transfer tickets, is handed by the conductor into the office, and becomes his settlement with the company. The use of this box was distasteful to the conductor John C. Smith, who filed a petition in which he represented his long employment upon the road; the fact that he was required to carry one of these boxes; that he had no means of knowing that they were accurate; that their use made him responsible to the company for plugged or counterfeit coins; that passengers objected to their use, and when the conductors, following the rules adopted by the company, required the passengers to deposit their fares in the boxes or leave the car, it gave rise to controversies which resulted in injury to the conductors; and that he had been injured by a passenger who objected to paying his fare. He also represented that when attempting to use the boxes of the company in good faith, according to the rules, he had been laid off from work for a number of days; and he asked for an order that the receivers might be required to pay him for the time so lost, and that the use of the boxes be discontinued. The receivers answered the petition, and claimed that the use of the boxes was a reasonable and proper regulation, and that Mr. Smith persistently and purposely refused to properly .use them, and did so after being warned that, if he did not properly use the boxes as directed, he would be laid off. Proof was offered before the court from which it pretty clearly appears that there would be no difficulty in operating the boxes if the conductors were so inclined, and that there was no practical difficulty in the way of their use, either on the part of the passengers or the conductors. The court made an order granting the prayer of the petition, not for the reasons set up therein, but, to state it in his own language, used at the time he granted the order:
“ It seems to me, in this matter, that the fact of the' receivers publishing notices in the car that no conductor shall handle money, connecting that with the fact that he shall be liable and responsible for any plugged money or counterfeit money that is placed in these boxes, compelling the public to place the fares in these boxes, and for the further reason that it is objectionable to the public to be compelled to put the money in the boxes— For these reasons it seems to me that, coupling the advertisement with the request to the public, it means that the conductors are not to be trusted; that they are not to handle the money; that there is some honest person somewhere who can handle the money, and count it correctly, but that these men are liable not to do so. It is an insinuation of dishonesty. In my opinion, it is saying to the public, ‘We have men in our employ whom we cannot trust, whom we are unable to trust, and I warn you that here is a man who is liable to appropriate to his own use money that he may collect that belongs to this railroad.’ It tends to ostracise from society people who are so engaged, — so employed. Children talk of it on the street. People discuss it, — that they are not proper persons to associate with; they cannot be trusted in handling five-cent pieces. I think this box is not a proper regulation; that it is not a thing to be used in the manner in which it is used; and an order may be made discontinuing the use of it.”
We think the conclusion reached by the learned judge is wholly unwarranted by the facts. Conductors of street cars deal with a great number of- persons, some of whom are entering and leaving the cars frequently. It often happens that change must he made, and there are opportunities for mistakes. It is not unreasonable to assume that, like persons in all callings, some of the employés of street-car companies will yield to temptation, when presented. Every one at all familiar with business upon a large scale knows that it is desirable to have it so systematized that mistakes or fraud in its conduct shall not occur. Officials, both of the State and Nation, and officers charged with the. management of banks, railroads, and other corporations,. are surrounded by checks and safeguards calculated to do away with the possibilities of frauds or mistakes. . The cash register is to be found in most places of business. Upon the elevated roads in the large cities, the passenger pays his fare before he enters upon the platform, over which he must pass to get admission to his train. Every one recognizes these checks and safeguards as proper to be used, and no one has a right to regard them as an imputation upon the honesty of any individual using them. Their use is simply a recognition of what we all know to be a fact, with humanity constituted as it is, — that, in the conduct of a large business by many persons, there is a liability to make mistakes, and a possibility of the commission of frauds. The Great Teacher, in that prayer which is the model of all prayers-, prayed, “Lead us not into temptation, but deliver us from evil.” It can readily be seen how the unintelligent or dishonest might object to these checks and safeguards, but it is difficult to understand how the honest and intelligent should object to any practical method which would reduce the probability of mistakes, or the opportunities for the commission of fraud, to the minimum.
It is urged on the part of the respondent that, as the receiver is an officer of the court, the control of the court over him is plenary, that whatever he does is done under the direction of the court, and that he is bound to observe the order of the court; citing 5 Thomp. Corp. § 6941. It is true that receivers are officers of the court. It is also true that less discretion is given to passive receivers, whose duty consists simply of taking possession of property, and converting it into money, and distributing it, than is allowed to an active receiver, who is required to manage a going concern like a system of street railways or a railroad. Such an officer, to be successful, must possess large executive ability, and must be clothed with considerable discretion. High, Rec. § 392. He may do such things, in the ordinary course of business, as to him, in good faith, seem necessary to render the business of the road profitable and successful. He is not only the arm of the court, but he represents, in a sense, the creditors and the stockholders of the road. If they, had the time to do so, very few courts possess the necessary knowledge to enable them to successfully manage a system of street railways. It is said in Continental Trust Co. v. Toledo, etc.. R. Co., 59 Fed. 514:
“The receiver is chosen, on account of his experience and sound ‘judgment, to operate the road for the benefit of the creditors and all concerned. While he is the officer of the court, and subject to the orders and directions of the latter, yet his instructions are always general in their character. He is expected to look after the details of the business, and to apply to the court, from time to time, when special instructions seem necessary. The very nature of his relations to the court, and his duties to the creditors, entitle him to the largest degree of discretion possible in the discharge of his duties. The court is constituted of several judges, and the railroad being operated extends through several judicial districts, so that it is difficult to secure uniformity in the administration of the property when an attempt is made to retain control of the details of the management in the court. It is therefore the settled practice, both as a matter of comity between the judges and as a matter of necessity to the proper and safe administration ■of the trust, to impose, as far as possible, the management of the property upon the receiver, and to remit the supervision of his management to the court in which he was appointed, and in which the primary jurisdiction attached. In view of this well-defined policy, it must be apparent that in the operation of a railroad extending from Toledo to St. Louis the court must necessarily rely upon the receiver, and hold him responsible for details. His discretion in such management will not be interfered with, except where some abuse and wrong is manifest.
“In Taylor v. Sweet, 40 Mich. 736, Judge Cooley, speaking for the Supreme Court of Michigan, in reference to the employment of help in the management of business confided to a receiver in that case, said: ‘The receiver, however, has ample power to employ them, or any other persons whose services he may need; and we think a court, which can know much less about the needs of the business than the receiver, ought not to interfere with his discretion unless some abuse is alleged and shown.’
“In Kerr on Receivers the following principle is given, in paragraph 175: ‘If he is empowered by the court to continue the management of the business over which he is appointed, he may employ such persons as may be necessary for the purpose; and the court will not interfere with his discretion as regards such employment, unless some abuse is shown.’
“These principles of law were declared in a case where a receiver was managing the business of a partnership. With how much greater force and pertinence do they apply to a receiver charged with looking after the intricate business of a great railroad, 450 miles in length, requiring familiarity with detail and expert knowledge which can only be acquired through long training and experience! A controversy recently arose between the engineers, firemen, and trainmen on the East Tennessee, Virginia & Georgia Railroad, and the receivers in charge of that extended system, running through several States, as to an order of the latter concerning the wages of employes. The receivers were appointed in the circuit court of the United States for the Eastern district of Tennessee. During the controversy, and while the chiefs of the organization of engineers and firemen were in Knoxville, negotiating with Receiver Eink on the subject, the former made representations as to the nature of the contention between them to Circuit Judge Lurton, then in Knoxville. The latter declined to entertain jurisdiction of the controversy, and remitted the question to the receivers; saying their decision would be final unless palpable wrong and 'injustice were done.
“ This is the only proper practice to pursue in these controversies. Courts are not constituted to manage and operate railroads. The judges, learned in the law though they may be, are not experienced in large business undertakings. They are not trained in those departments of railroad management which relate to the wages of employes, to the numbers necessary for the maintenance of the roadbed and for the safe operation of trains, to the tariffs for freight, and the purchases of supplies. Even if capable of mastering such details, their time will not permit. They are occupied in determining the legal rights of parties in litigated cases, and though, in these days of large ventures and improvident railroad enterprises, the courts are called upon, through receivers, to temporarily manage them pending litigation necessary to a foreclosure sale, yet, as before stated, they assume this burden because it cannot be evaded; -but they manage them through receivers selected for their experience and demonstrated ability, and they rely upon their experience and judgment to wisely and economically administer the trust.”
See, also, 20 Am. & Eng. Enc. Law, 370; Cowdrey v. Railroad Co., 1 Woods, 336; Sloan v. Railway Co., 62 Iowa, 733.
Applying these principles to the case in hand, what is the situation, and what should be the result ? The receivers are in the management of a great property. They adopted a device which, in their judgment, is calculated to help make the management of the road successful and profitable. Their judgment is challenged by one of their employes. He appeals to the court. The receivers are supposedly appointed because of their responsibility and ability. The act of the receivers is a detail in the management of the road. The act done is not shown to be an abuse of discretion on the part of the receivers. If the court is to substitute its-judgment for the judgment of the receivers in a detail of management like this, where will its duty end? Shall the court enter into the consideration of the entire organization of the road, and determine whether one man shall be discharged and another employed ? Will it enter into the inquiry as to the quality of the coal used in the power-house, or the brand of oil used as a lubricator ? Will it entertain a complaint of an employe that he should be furnished with a pointed shovel in his work, instead of the one he is now required to use ? We think the learned judge entered upon an inquiry that properly belongs with the receivers, and not with the court. If they are not competent to deal with such a detail of the management of the road, they should be removed, and some one appointed who is competent.
The writ should issue as prayed.
The other Justices concurred in the opinion of Moore, J. | [
15,
-15,
43,
6,
17,
6,
35,
0,
-10,
26,
17,
17,
2,
-38,
-65,
-32,
25,
-8,
7,
-26,
-18,
-4,
21,
-35,
-38,
14,
-8,
13,
-34,
21,
-2,
-17,
19,
-5,
45,
6,
28,
-18,
70,
14,
-30,
46,
-13,
43,
-11,
-21,
29,
36,
1,
-31,
-11,
11,
2,
23,
2,
28,
-33,
-57,
22,
13,
26,
-29,
45,
18,
-22,
1,
0,
5,
-51,
12,
0,
38,
20,
-6,
35,
49,
-5,
-24,
-32,
15,
-35,
-6,
-28,
-71,
-42,
51,
-16,
15,
39,
-42,
17,
6,
-71,
2,
98,
26,
-37,
6,
37,
-1,
-7,
-4,
-73,
-5,
36,
-37,
42,
-3,
-47,
-6,
-17,
-39,
19,
-55,
-29,
9,
-33,
33,
87,
-11,
61,
-51,
-20,
5,
-47,
-2,
68,
-57,
-30,
41,
44,
25,
-37,
3,
2,
3,
13,
-40,
59,
9,
1,
64,
50,
17,
-48,
-49,
20,
49,
-5,
-19,
6,
-31,
27,
-16,
5,
-16,
-38,
-6,
51,
12,
-12,
85,
20,
-17,
-29,
-22,
13,
-20,
0,
18,
-34,
-3,
19,
-21,
36,
-16,
4,
36,
-36,
-36,
21,
49,
10,
24,
-25,
-18,
36,
-3,
13,
-65,
57,
-33,
16,
-49,
-9,
44,
30,
-18,
-3,
14,
0,
13,
-11,
32,
-43,
-13,
39,
-29,
-14,
54,
2,
-1,
-52,
46,
0,
14,
-8,
-23,
27,
-51,
-26,
-5,
35,
39,
20,
24,
-8,
-4,
-43,
9,
10,
-34,
15,
14,
3,
-11,
72,
-36,
14,
21,
-17,
-22,
-14,
-33,
19,
-49,
-27,
-31,
35,
-13,
-13,
2,
-54,
4,
-23,
-46,
24,
13,
-28,
-24,
17,
33,
24,
39,
20,
-45,
11,
10,
-16,
14,
-42,
7,
14,
-47,
19,
-8,
7,
32,
8,
-35,
26,
-58,
-16,
14,
3,
8,
31,
-42,
41,
-2,
-26,
-4,
-3,
77,
3,
58,
16,
50,
9,
-5,
-27,
10,
21,
-23,
49,
4,
-30,
-44,
-21,
-12,
40,
-59,
-50,
-14,
43,
-37,
36,
11,
12,
30,
12,
17,
-51,
-22,
31,
73,
6,
7,
19,
-37,
48,
42,
-20,
-47,
-40,
38,
30,
32,
29,
-34,
-10,
-6,
-50,
-12,
-6,
-20,
43,
-30,
-49,
-48,
-54,
42,
3,
1,
35,
38,
-11,
-22,
22,
54,
14,
0,
5,
0,
69,
-55,
-56,
29,
-18,
3,
50,
-42,
-12,
-6,
3,
26,
-29,
-11,
36,
-4,
-26,
-24,
-19,
-40,
26,
-68,
-48,
-58,
-76,
-18,
0,
10,
-28,
24,
-30,
2,
-31,
-16,
-5,
37,
-39,
34,
-43,
54,
-8,
0,
44,
9,
27,
30,
-37,
10,
15,
37,
22,
-8,
-1,
17,
37,
-29,
20,
17,
7,
-39,
42,
-22,
-8,
13,
6,
34,
-21,
-14,
34,
-1,
-22,
-6,
0,
-60,
-4,
-40,
0,
13,
-18,
43,
-48,
-58,
-62,
7,
43,
13,
47,
-11,
-17,
9,
-2,
32,
11,
27,
26,
-52,
5,
0,
-20,
23,
-14,
31,
-2,
0,
63,
-1,
-25,
27,
-35,
6,
-26,
-28,
24,
-43,
5,
7,
-50,
48,
-22,
-8,
13,
0,
7,
-18,
-33,
76,
26,
21,
-34,
45,
48,
74,
-89,
-8,
30,
46,
-8,
23,
1,
41,
18,
40,
-45,
-33,
-16,
-11,
6,
-9,
0,
21,
-6,
72,
-100,
7,
-28,
5,
-7,
11,
-5,
-52,
36,
69,
24,
-33,
1,
-9,
14,
-9,
21,
-30,
-30,
-14,
26,
-16,
-28,
0,
19,
6,
22,
-33,
28,
2,
5,
-24,
-32,
1,
48,
46,
-28,
-20,
-31,
-14,
-20,
1,
-35,
-18,
-37,
-22,
-19,
-52,
-16,
28,
-14,
17,
19,
-32,
-2,
1,
38,
-31,
-2,
34,
-4,
-36,
-21,
4,
6,
16,
-51,
11,
59,
-43,
-46,
5,
-73,
32,
-5,
2,
0,
26,
12,
49,
13,
28,
-11,
-35,
26,
-29,
-26,
13,
-23,
-50,
-42,
5,
8,
-30,
-4,
-43,
-46,
35,
-27,
24,
-7,
-1,
8,
12,
-11,
-8,
-7,
-5,
1,
-63,
40,
-6,
-1,
-2,
-36,
31,
-23,
25,
23,
14,
-12,
24,
49,
-24,
-52,
24,
38,
1,
42,
-19,
-23,
30,
-3,
60,
-6,
35,
49,
21,
38,
10,
5,
5,
10,
-10,
-28,
-24,
-9,
25,
-22,
44,
-5,
40,
51,
-16,
25,
-48,
24,
-8,
48,
-59,
-44,
-17,
19,
-40,
-45,
61,
-18,
-5,
-24,
-36,
-6,
13,
-10,
-28,
-22,
24,
-60,
41,
23,
-3,
-15,
-13,
29,
14,
-5,
-28,
-14,
44,
-35,
-33,
-54,
6,
-36,
28,
-28,
5,
17,
5,
36,
5,
2,
-14,
-33,
-41,
-15,
-40,
52,
51,
-1,
17,
28,
-20,
-35,
-42,
-1,
-45,
-2,
-12,
19,
-22,
-5,
14,
-30,
12,
11,
-24,
13,
1,
-23,
15,
-44,
-19,
-76,
-1,
19,
-10,
-35,
45,
45,
-19,
-38,
4,
25,
-44,
25,
-16,
48,
18,
6,
38,
-34,
26,
83,
-45,
11,
-32,
-25,
8,
-17,
33,
-16,
-10,
54,
-6,
-41,
1,
11,
-28,
-6,
-76,
22,
1,
0,
-14,
1,
-41,
-19,
14,
-26,
26,
-8,
-62,
-8,
-1,
-42,
32,
-10,
-36,
-22,
-5,
6,
18,
-20,
-5,
-42,
5,
-7,
-14,
6,
4,
-21,
35,
-34,
38,
9,
28,
-9,
-16,
-48,
-50,
-9,
11,
31,
34,
27,
6,
30,
1,
-11,
-8,
37,
-17,
1,
8,
44,
-38,
-5,
7,
3,
-24,
0,
58,
-14,
34,
0,
-19,
-59,
-45,
-18,
-39,
33,
-25,
41,
-39,
-6,
12,
-41,
-4,
-28,
-4,
-76,
-16,
15,
-29,
3,
23,
5,
13,
-5,
-25,
37,
-4,
0,
-33,
-42,
-48,
65,
36,
4,
-22,
21,
-24,
-20,
42,
-32,
-17,
18,
24,
2,
-1,
-28,
-14,
-20,
15,
-16,
15,
-33,
-13,
0,
10,
25,
18,
28,
9,
0,
21,
-39,
-32,
9,
-49,
-24,
13,
45,
3,
-13,
13,
-6,
36,
16,
46,
37,
56,
2,
43,
-3,
24,
11,
-10,
6,
-53,
21,
-21,
39,
22,
-5,
-44,
-19,
-17,
4,
-23,
-22,
-24,
-1,
3,
-25,
-23,
8,
2,
-27,
44,
-55,
-37,
-22,
6,
31,
31,
88,
-13,
44,
-26,
14,
-64,
-8,
-30,
3,
-2,
-18,
-9,
0,
21,
40,
-27,
28,
-8,
89,
17,
11,
1,
21,
11,
16,
-7,
-25,
0,
19,
56,
-29,
-13,
8,
-26,
-3,
40,
-12,
5,
11,
-21,
7,
-31,
35,
5,
-30,
74,
-3,
37,
3,
-29,
23,
38,
20,
36,
-41,
-10,
-14,
-49,
47,
2,
-20,
18
] |
Moore, J.
This is a proceeding to construe a will made by Herbert M. Snow, who was married in 1883. July 8, 1884, Clara L. Snow was born! The will in question was made April 20, 1888. Harry A. Snow was born May 7, 1889, and Gertrude E. Snow was born April 28, 1892. AH these children were living when the death of Mr. Snow occurred, in October, 1897. Mr. Carpenter was named as executor in the will. Omitting the formal parts of the instrument, it reads as follows:
“ Second. After the payment of my debts and the expenses of administering my estate, I give, devise, and bequeath all my property, real and personal, and all the property of every kind and nature whatsoever of which I may die possessed, to my beloved wife, Mary L. Snow.”
As no provision was made in the will for Clara, who was born before the will was made, or for the two children born afterwards, the bill is filed to determine the respective rights of the widow and children. In the court below a decree was made holding the after-born children took no portion of the estate, and providing:
“This decree is made without prejudice to the rights of the defendant Clara L. Snow to take proceedings at law to determine whether the omission to provide for her in said will was made intentionally, or by mistake or by accident.”
Extraneous testimony was taken, which, if competent, shows that Mr. Snow intended to give all his property to his wife to the exclusion of his children, having confidence in her management of the property, and her sharing it with the children. While this testimony may be'competent to show that the omission to provide for Clara was not unintentional, we do not think it competent to show that the testator did not intend to provide for his unborn children.
The provisions of the statute applying to the facts disclosed by this record are as follows:
2 How. Stat. § 5809, provides:
“When any child shall be born after the making of his father’s will, and no provision shall be made therein for him, such child shall have the same share in the estate of the testator as if he had died intestate, and the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.”
Section 5810 provides:
“When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, of the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding section.”
It will be noticed the language in the two sections with reference to showing the intention of the testator is not at all alike. In the last-named section it is not required that the omission to provide must be shown by the will itself to be intentional. This section has been construed by this court in Re Stebbins’ Estate, 94 Mich. 304 (34 Am. St. Rep. 345), where it is held the question as to whether the omission to provide for a child in the will was intentional or otherwise is a question of fact which may be submitted to a jury. Section 5809 has never been construed by this court. The decisions of other courts cannot be harmonized. The case of Hawhe v. Railroad Co., 165 Ill. 561, is in harmony with the decree made by the trial judge.
The language of the statute would seem to be very plain. At the common law, marriage and the birth of children after the will was made would revoke the will. The legislature evidently had in mind that, if the father failed to make provision in his will for the unborn child, the law should make provision for it, unless the parent made it clear in the will itself that the omission to provide was intentional. How can it be said from the language used in this will that the father intended to cut off from inheriting his property two children who afterwards came to him, when no reference is made to them in the will, and neither of them was at that time conceived ? A similar statute to this was construed in Bresee v. Stiles, 22 Wis. 120, where it was held the unborn children were to take the same share in the estate as if the parent had died intestate. A like statute was construed in Wasserman v. Railway Co., 22 Fed. 872. We cannot do better than to quote from the opinion of Justice Brewer:
“In this case, the primary question I am reluctantly compelled to decide in favor of the complainant, Wasserman. I say reluctantly, for when a man on the eve of death, having a child five years of age, and living with a wife to be delivered of a second child within 20 days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either the born or unborn child, but trusted to his wife— their mother — to do justice by each, and believed that she, with the property in her hands, could handle it more advantageously for herself and children than if interests in it were distributed. As a question of fact independent of statute, I have no doubt that Mr. Wasserman had no feeling either against the born or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that property and her future labors she would take care of his children. But the legal difficulty is this: The statute says that it must be ‘apparent from the will’ that the testator intended that the unborn child should not be specially provided for. How can any intention as to this child be gathered from the will alone ? It simply gives everything to the wife; is silent as to children. If I could look beyond the will, my conclusion would be instant and unhesitating. Limited by the statute to the instrument itself, what can be gathered therefrom? It is simply a devise of all property to the wife. No reference is made to children, born or unborn. Can I infer from its silence an intention to disinherit ? If so, the mere omissions from a will would always stand as proof of an expressed intention. And whatever of apparent hardship there may be in the present case, a fixed and absolute rule prescribed by statute cannot, for such reason alone, be ignored. That the rule was intentionally thus prescribed is evident, not alone from the clear letter of the statute, but also from the history of this question at common law, and the various provisions of the statutes of other States. At common law the will of an unmarried man disposing of all his property was presumably revoked by his subsequent marriage and the birth of a child. This rule was borrowed from the civil law. Whether revocation would follow from subsequent marriage alone or birth of child alone was perhaps a doubtful question. In Brush v. Wilkins, 4 Johns. Ch. 506, it was held that both must concur, while in McCullum v. McKenzie, 26 Iowa, 510, the birth of a child alone was adjudged sufficient. See, generally, upon this question, 1 Redf. Wills, chap. 7; 1 Williams, Ex’rs, chap. 3, § 5; 4 Kent, Comm. 521-526.
“It was also, for awhile, at least, disputed whether, such revocation followed absolutely from subsequent marriage and birth of child, or was only to be presumed, and the presumption subject to be overthrown by evidence of the testator’s intentions. Lord Mansfield, in Brady v. Cubitt, 1 Doug. 39, ruled that the presumption of revocation from marriage and the birth of issue, like all other presumptions, ‘may be rebutted by every sort of evidence.’ See, also, Johnston v. Johnston, 1 Phillim. Ecc. 473. Such seems to have been generally the ruling of the ecclesiastical courts. On the other hand, in Goodtitle v. Otway, 2 H. Bl. 522, Chief Justice Eyre held that, ‘in cases of revocation by operation of law, the law pronounces upon the ground of a presumptio juris et de jure that the party did intend to revoke, and that presumptio juris is so violent that it does not admit of circumstances to be set up in evidence to repel it.’ And in the leading case of Marston v. Roe, 8 Adol. & E. 14, by all the judges in the exchequer chamber, it was finally decided that the revocation of the will took place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself. Such being the final solution of the question in the English courts, it cannot be that the purpose of the statute in question was to open the door to any other evidence of intention than those expressly named. On this side of the waters the matter has generally been regulated by statute, with a prevailing tendency to declare that the after-born child takes the same share that it would have done if the father had died intestate; or, in other words, the will is absolutely revoked pro tanto, unless there is some provision made for such child, or an express intention that it should receive nothing.
“The statute of Wisconsin is identical with that of Nebraska, and in Bresee v. Stiles, 22 Wis. 120, the inquiiy as -to the testator’s intentions was declared to he limited to the language of the will, and, the will being silent, the after-born child inherited. See, among many cases, the following, which show how carefully the courts have enforced the rule of revocation pro tanto in the interest of the child: Waterman v. Hawkins, 63 Me. 156; Walker v. Hall, 34 Pa. St. 483; Hollingsworth’s Appeal, 51 Pa. St. 518. In the first the testator left certain real and personal estate to his widow during her life and widowhood, to revert to his heirs upon her death or marriage, and gave the rest to his father. A daughter born two months after his death was held unprovided for by the will, and recovered the share of the estate she would have taken if he had died intestate. In the second the testator gave his entire estate to his wife, saying in the will, 4 Having the utmost confidence • in her integrity, and believing that, should a child be born to us, she will do the utmost to rear it to the honor and glory of its parents,’ — and the same ruling was made. In the last case the will in terms committed any after-born child to the guardianship of his wife, adding, 4 Which guardianship I intend and consider a suitable and proper provision for such child; ’ and still a similar decision was pronounced. Further citations would seem unprofitable.
4 4 To sum the matter up, the common-law courts of England finally reached the conclusion that the revocation was absolute upon the happening of marriage and birth of issue, and not dependent upon evidence of testator’s intention. The general tendency of statute law in this country is in the same direction, and courts, as a rule, have carefully protected the rights of after-born children. The language of the statute is plain and unambiguous. The will makes no provision for this child, does not mention or refer to her, and on its face manifests no intention that she should be unprovided for. Hence it must be held that she takes the same share in the estate which she would have taken had her father died intestate, to wit, one-half. ”
In passing this statute, the legislature required, if the father intended to disinherit the unborn child, he should indicate it in his will, and that it should not be left to extraneous testimony to show his intent.
The decree of the court below as to Harry Snow and Gertrude Snow is reversed, and a decree will be entered here giving to them the same interest, they would have in the property if the father had died intestate. As to Clara L. Snow, the decree will be without prejudice to take proceedings at law to decide whether the omission to make provision for her was intentional. As all the parties were interested in the construction of this will, the costs should be paid out of the estate.
The other Justices concurred. | [
4,
49,
10,
-35,
17,
19,
48,
20,
45,
-5,
3,
19,
70,
19,
-17,
-29,
0,
-15,
-33,
-71,
-45,
-4,
-14,
-26,
6,
36,
30,
11,
-21,
-39,
7,
-4,
-16,
-30,
22,
42,
63,
51,
24,
9,
2,
12,
48,
27,
-12,
0,
-17,
12,
15,
-11,
-8,
-59,
60,
-2,
92,
4,
10,
18,
-48,
-7,
0,
-22,
-8,
28,
0,
26,
13,
22,
-50,
-20,
5,
29,
-1,
24,
-5,
-8,
-7,
14,
-22,
20,
20,
-51,
23,
-15,
32,
-30,
-4,
26,
3,
33,
-70,
19,
-7,
34,
-68,
22,
29,
18,
8,
49,
-3,
-34,
28,
19,
-3,
-10,
-24,
27,
-23,
53,
-22,
15,
-3,
14,
-4,
8,
-45,
-12,
-76,
-44,
3,
18,
0,
-5,
-8,
-6,
-23,
15,
57,
-47,
-19,
16,
-41,
-16,
-34,
-21,
-5,
-27,
1,
-69,
-5,
12,
0,
-61,
18,
40,
-15,
-1,
23,
-50,
-23,
14,
42,
-25,
26,
-38,
-14,
-9,
7,
-33,
1,
10,
-16,
-52,
4,
-10,
0,
-5,
-41,
10,
5,
18,
-15,
-39,
7,
13,
-13,
-28,
-29,
-2,
5,
42,
45,
2,
38,
-27,
-24,
27,
4,
-34,
-10,
-4,
24,
21,
-24,
53,
13,
-40,
6,
-49,
-17,
0,
-28,
5,
-29,
-5,
22,
18,
-42,
22,
44,
27,
-42,
22,
0,
17,
-52,
-90,
-103,
15,
-31,
18,
24,
-29,
-12,
2,
15,
-17,
-45,
-27,
28,
20,
-44,
-21,
9,
5,
-28,
-5,
-43,
-24,
20,
9,
1,
-7,
31,
4,
11,
46,
3,
37,
-5,
-14,
-24,
67,
-10,
-8,
-33,
8,
26,
-54,
-55,
15,
-9,
-6,
5,
-40,
63,
-73,
11,
40,
46,
-34,
67,
-26,
-8,
-35,
2,
-28,
-33,
-8,
8,
18,
18,
-40,
15,
-5,
-56,
-43,
21,
57,
4,
-20,
33,
-25,
7,
35,
10,
-47,
-8,
-43,
9,
-19,
25,
45,
28,
-10,
38,
-59,
17,
45,
1,
6,
-25,
-6,
56,
-2,
-58,
-51,
12,
44,
62,
-74,
-8,
16,
-9,
45,
-14,
9,
-12,
79,
3,
20,
-15,
-35,
-33,
-37,
11,
-25,
-51,
-16,
-1,
41,
17,
-6,
8,
11,
-1,
6,
-27,
-20,
-32,
24,
32,
0,
-38,
13,
10,
-26,
25,
26,
-22,
-19,
27,
5,
-1,
36,
-22,
8,
27,
-9,
-4,
2,
-43,
-19,
-5,
49,
-36,
36,
1,
-5,
-36,
-21,
-30,
59,
8,
44,
4,
36,
28,
52,
-17,
-11,
14,
32,
-23,
18,
-35,
-7,
-86,
-21,
-66,
48,
18,
-68,
-34,
-14,
-21,
2,
-25,
82,
33,
1,
59,
-31,
41,
-33,
17,
-88,
14,
98,
-7,
14,
13,
-3,
-46,
-64,
-45,
-6,
12,
-11,
-16,
16,
19,
46,
56,
-60,
20,
-7,
-12,
8,
-16,
32,
41,
22,
38,
-1,
31,
-26,
11,
-8,
31,
51,
-10,
23,
11,
-48,
36,
1,
-7,
-67,
14,
20,
26,
-3,
42,
29,
-22,
5,
1,
39,
-11,
-4,
8,
45,
-2,
32,
42,
-29,
46,
-42,
5,
35,
8,
-36,
6,
-14,
-18,
-21,
-39,
-63,
34,
-7,
-4,
-24,
-25,
-6,
-27,
-11,
-21,
-18,
17,
24,
16,
-1,
-7,
-39,
-2,
-36,
-42,
-1,
-18,
-29,
-33,
11,
-19,
19,
56,
-19,
21,
11,
26,
-35,
-33,
32,
-43,
-13,
54,
56,
2,
-51,
33,
21,
-17,
24,
5,
-1,
-2,
15,
-48,
-6,
-40,
31,
21,
11,
-44,
-39,
14,
28,
-14,
-11,
26,
-31,
-76,
-17,
14,
42,
39,
-4,
2,
36,
21,
-1,
5,
-52,
33,
-22,
-36,
2,
-16,
12,
-1,
-43,
22,
-11,
-32,
38,
9,
3,
-15,
0,
-21,
-5,
0,
-35,
21,
79,
-14,
42,
7,
2,
-21,
-5,
-61,
18,
-18,
1,
-35,
-6,
-46,
19,
-15,
20,
-19,
-16,
-18,
11,
8,
4,
-4,
-43,
14,
17,
17,
-20,
22,
6,
12,
-57,
-10,
17,
-69,
30,
-11,
-32,
22,
10,
-15,
52,
24,
-40,
14,
-11,
1,
-4,
18,
-34,
-12,
-18,
11,
-36,
18,
0,
-26,
-14,
-9,
5,
-5,
-38,
44,
-22,
16,
-22,
-46,
-15,
7,
-9,
0,
-36,
13,
18,
33,
-69,
-22,
31,
6,
83,
23,
31,
7,
-41,
5,
-36,
-23,
4,
0,
55,
-34,
63,
58,
44,
-4,
-13,
25,
7,
11,
-19,
3,
40,
-45,
22,
-15,
-41,
14,
33,
-83,
7,
-22,
40,
66,
36,
15,
-2,
-36,
32,
-16,
-31,
-2,
67,
-26,
-38,
-44,
40,
-1,
4,
-42,
-3,
43,
0,
38,
-56,
3,
-23,
27,
6,
6,
32,
60,
12,
-10,
-31,
35,
-5,
-46,
0,
26,
53,
21,
2,
55,
7,
-25,
21,
-41,
14,
-32,
1,
50,
43,
6,
65,
4,
32,
62,
59,
-13,
12,
20,
36,
3,
-24,
4,
49,
2,
8,
24,
14,
-44,
-10,
-18,
-17,
8,
12,
-35,
-11,
8,
0,
-50,
17,
24,
-16,
-14,
-4,
-27,
16,
14,
-54,
50,
-28,
34,
16,
2,
38,
-1,
11,
-8,
-16,
-21,
9,
-18,
-47,
36,
-26,
-16,
37,
-1,
-20,
-27,
53,
-19,
24,
45,
-44,
-13,
-68,
-68,
-33,
10,
12,
33,
-7,
72,
-5,
-5,
-47,
50,
2,
-5,
12,
3,
-38,
11,
-32,
-1,
0,
7,
-55,
0,
49,
34,
-29,
32,
-17,
48,
46,
34,
19,
11,
34,
14,
2,
37,
-14,
28,
59,
-32,
-74,
-26,
4,
-15,
11,
-53,
-11,
-17,
-23,
31,
-9,
0,
21,
51,
-10,
-64,
-30,
-44,
-30,
7,
-35,
70,
18,
-12,
29,
-1,
51,
19,
-10,
-25,
37,
23,
-25,
17,
2,
-7,
-4,
29,
-7,
-24,
8,
-6,
-46,
-44,
0,
-42,
0,
-23,
-44,
-2,
-6,
-6,
16,
37,
43,
58,
-73,
-34,
-10,
23,
-11,
16,
-14,
11,
-24,
14,
-37,
-21,
15,
-12,
13,
29,
-18,
-19,
9,
34,
74,
-13,
18,
75,
-34,
-8,
0,
0,
4,
34,
16,
-35,
-26,
2,
-12,
16,
-91,
-27,
-37,
0,
39,
6,
-4,
-27,
48,
-48,
18,
-93,
26,
-41,
-17,
-3,
11,
64,
-1,
64,
-14,
11,
-51,
40,
-22,
13,
-40,
9,
-7,
20,
14,
-17,
13,
-25,
28,
-26,
29,
-2,
-46,
33,
-97,
-32,
-14,
51,
21,
23,
15,
-1,
-22,
-16,
18,
-35,
-9,
12,
-56,
-4,
5,
-5,
-59,
6,
77,
2,
-60,
-32,
-36,
-29,
-18,
-67,
12,
-39,
20,
30,
16,
0,
4,
49,
15
] |
Moore, J.
An examination of the accompanying plat will aid in understanding the situation. In 1873 about 36
acres of land was owned by Mr. La Fountain and Mrs. Toll as tenants in common. This land was divided into two nearly equal parts by Elm avenue, which runs nearly east and west. In April, 1873, William L. Webber, as trustee for the Flint & Pere Marquette Railroad Company, purchased the west 33 feet of that part of the tract lying north of Elm avenue. Mr. Webber’s deed was recorded in May, and contained this provision: “That, if the same shall ever be occupied for the running and operation of a railroad, the same shall be duly fenced by the company. ” Soon after the deed was given, a railroad grade four or five feet high was made on the north two-thirds of the land bought, and a fence was built on the east line of the part graded. This strip of land was thereafter assessed either to Mr. Webber or the railroad company, and the taxes paid by them. This land was afterwards conveyed to the Monroe & Toledo Railroad Company. In 1888 the plaintiff obtained a quitclaim deed of substantially the west half of the land lying north of Elm avenue, including the 33 feet which had been deeded to Mr. Webber. The plaintiff removed the fence, soon after he obtained the deed, back 33 feet,- which took it to about the middle of the grade. The plaintiff gave a mortgage on his land in 1892, and another in 1895, in each of which his land was described as bounded on the west by land of the Flint & Pere Marquette Railroad Company. All his tax receipts read the same way, and he knew of the grade and of the talk about building a railroad on the land.
In the spring of 1893 the plaintiff set out on the 33-foot strip of land 55 plum trees and 30 pear trees. That spring he had been notified to move the fence back, because the railroad company desired to place tracks upon the grade. There is a dispute in the testimony whether this notice was given before or after the trees were set. This notice was repeated in the summer of 1894. On one Sunday in June, 1896, the company .entered upon the 33-foot strip of land, destroyed the trees, and built its track. Soon thereafter plaintiff commenced a suit in the circuit court for Monroe county in an action of trespass, claiming damages for the destruction of these trees and the crops growing upon the strip of land, and for damages done outside of the strip of land. The circuit judge charged the jury in that case:
“The plaintiff will not recover damages in this action for the value of the permanent improvements and the trees destroyed in the right of way, or for deprivation of his right to have his damages assessed in an action of ejectment. As to these elements of damages, the plaintiff is left unprejudiced, the same not being in this case.”
The jury returned a verdict as directed, for $65.40. No appeal was ever taken in that case. Afterwards this action was commenced.
The declaration contained two counts, in the first of which it is, in substance, recited that plaintiff, at the time of the alleged trespass, in June, 1896, was in actual and peaceable possession of the premises, under a claim of title, and had been for more than six years; that within six years he had set out the trees in question; that on Sunday the defendants took forcible possession of said premises, and by that act deprived the plaintiff of his right to have the value of his improvements to the land assessed, as provided by section 7836, 3 How. Stat.; and reciting the destruction of the trees and the value of the improvements destroyed, and claimed damages in the sum of $2,000. The second count recited the forcible entry upon the premises, the destruction of the trees without notice to the plaintiff and without legal determination, and claimed damages in the sum of $2,000. ■ To this declaration the defendants pleaded the general issue, and gave notice that the former suit was res adjudicate/, of this one. On the trial it was admitted that the property described in the declaration in the first case includes the 33 feet described in the declaration in this case; that the trees described in the two declarations are the same, and that the entry complained of is the same. The court held that there could be no recovery under the second count, but that proofs might be taken under the first count. The case was tried by a jury, who returned a verdict in favor of defendants. The plaintiff brings the case here by writ of error.
We do not think the court erred in relation to the second count. If it states a cause of action at all, it is in trespass, and is by the former suit res adjuclicata.
The trial judge, among other things, charged the jury as follows:
“The plaintiff having been in peaceable possession of the premises in question for more than six years prior to the entry complained of, and having taken possession under color of title, there was no peaceable way known to the law to evict him from these premises except by an action of ejectment. In such an action he would have been defendant, and had his title failed him, as he now admits it has, he would have been entitled to recover from the plaintiff railway company in that action compensation for such improvements made on the premises in question to the extent that such improvements would have increased the then value of the property. The entry complained of, and the retaining possession of the premises in question, deprived the plaintiff in this case of having his damages ascertained in an action of ejectment; and this suit is brought to recover such damages as he could have obtained had such action been brought, and he is entitled in this suit to recover those damages, providing he planted those trees in good faith, believing that he held the title to this property.
“If the plaintiff, in 1888, or soon thereafter, went into possession of this disputed piece of land 33 feet in width in good faith, believing that he had title, and if you further find from the evidence that he was in possession of the same under the same belief and good faith at the time he planted these trees, then I think plaintiff is entitled to recover in this cause. On the other hand, if you find from the evidence that, when the plaintiff planted these trees, he knew that the railroad company had a deed to this strip of land, and that they had paid taxes upon it ever since he (plaintiff) had made the purchase; and if you further find from the evidence that the plaintiff knew or had good reason to'know that the railroad company still claimed to own this land; and if you find from the evidence that he planted these trees either for the purpose of improving his claim, or because he was willing to take the chances of holding the land, — then the plaintiff planted these trees at his own peril, and if now it transpires that his title has failed, and that the railroad company possessed the title, then the plaintiff cannot complain, and he cannot recover in this action. If you find from the evidence that, before the time of planting the trees upon this strip of 33 feet, plaintiff had notice that this land belonged to the Flint & Pere Marquette Railroad Company or its trustees, then he cannot recover in this action, and your verdict should be for the defendants.”
The jury evidently found that plaintiff’s possession of the land and the planting of the trees was not in good faith. It is difficult, judging from the record, to see how they could have found differently. It is now urged that the court erred in holding that if plaintiff had knowledge of the title of defendants when he went into possession of the land, and when he planted the trees, he could not recover. It is said that the question of good faith is not involved, as plaintiff was in the actual and peaceable possession of the property for eight years before the alleged trespass occurred. This claim is based upon section 7836, 3 How. Stat., which reads:
“Whenever in any action of ejectment the plaintiff, or any one or more of the plaintiffs, if there be more than one, shall recover,' or recover any undivided interest in the premises, the defendant or defendants shall be allowed compensation in proportion to such recovery for buildings and improvements on the premises recovered, erected or made by him or them, by any person through whom he or they claim title, to the extent that such buildings and improvements shall increase the present value of said premises : Provided, the defendant or defendants, or the person through whom he or they claim title, shall have been in the actual, peaceable occupation of the premises recovered for six years before the commencement of the action: or, provided, the same shall have been so occupied for a less time than six years under a color of title and in good faith.”
Inasmuch as this was not an action of ejectment, it is difficult to see how the claim can be based upon this statute. It is urged that the provisions of the statute have been applied to a case that was not an ejectment case; citing Sherman v. A. P. Cook Co., 98 Mich. 61. This was a case in equity to quiet title, where both parties to the litigation asked that the value of the improvements be determined. At the common law there could be no recovery as against the holder of the title for betterments. They became a part of the freehold, and passed by the recovery in ejectment. The plaintiff was placed in possession of the land in its improved form. Sedg. & W. Tr. Title Land, § 690. At law, relief is granted only when provided by statutory enactment. Burkle v. Ingham Circuit Judge, 42 Mich. 513. In this State, as we have already seen, it is granted when the plaintiff brings ejectment. It is not given as a personal judgment against the plaintiff, but its payment is made a condition precedent to his obtaining a writ of possession. 3 How. Stat. § 7839; McCoy v. Grandy, 3 Ohio St. 463. We know of no provision of the statute which gives the maker of the betterments any relief at law except in actions of ejectment. The case of Webster v. Stewart, 6 Iowa, 401, in many respects resembles this one. In that case it is held that, when the rightful owner has obtained possession of the property without resorting to an action at law, he is not liable in an action at law for the value of improvements made by another. Claussen v. Rayburn, 14 Iowa, 136. Belief in these cases is granted in chancery, and, if it be said that it is inequitable to allow the defendants to retain possession of these premises without compensating the plaintiff for his improvements, it is reasonable to inquire under what circumstances would he be entitled in equity to compensation.
“It is uniformly established, in the modern procedure, that only a bona fide occupant of land will be permitted to mitigate the plaintiff’s claim for damages and mesne profits by offsetting the value of his improvements; and the same principle prevails in States which give the occupant alien upon the land for the surplus of the meliorations above the damages and mesne profits. The claim for betterments is founded upon equitable grounds, and it would be manifestly inequitable to the owner, and, indeed, a highly dangerous policy, to make allowances for improvements to one who made the expenditures with full knowledge of the adverse claim. Thus, it is said in Maryland (Linthicum v. Thomas, 59 Md. 583): ‘A claim for permanent improvements or betterments can be successfully asserted only by one who is a bona fide occupant or possessor.’ ” Sedg. & W. Tr. Title Land, § 694, and cases there cited; 3 Pom. Eq. Jur. § 1241, and cases cited.
There is also another principle involved in the case. Judge Cooley, in his excellent work on Constitutional Limitations (6th Ed., p. 476), quotes with approval language used in Brown v. Storm, 4 Vt. 37, as follows:
“The statute is highly equitable in all its provisions, and would do exact justice if the value either of the improvements or of the land was always correctly estimated. The principles upon which it is founded are taken from the civil law, where ample provision was made for reimbursing to the bona fide possessor the expense of his improvements, if he was removed from his possession by the legal owner. It gives to the possessor, not the expense which he has laid put on the land, but the amount which he has increased the value of the land by his betterments thereon; or, in other words, the difference between the value of the land as it is when the owner recovers it and the value if no improvement had been made.”
Another text waiter says: “The character of the improvement must bé such as to make the land more valuable in the future for the ordinary purposes for which such property is owned and used.” Sedg. & W. Tr. Title Land, § 699.
All these betterment laws proceed upon the theory that no one should be made richer at the expense of another. What is the situation as shown by the record ? As early as 1873 this land ufas purchased to be used as the right of way for a railroad track. When he obtained title to it, the plaintiff knew the situation. A portion of the right of way was then fenced out. He saw fit to put upon the land fruit trees. The planting of these trees would doubtless be improvements upon ia fruit farm, but, instead of being improvements which added to the value of the right of way for railroad purposes, they were harmful. 'It was necessary for the owner to remove them before he could use the property for the purpose for which he bought it. The so-called “improvement” did not inure to the owner’s benefit, but was a damage to him.
Without passin¿ upon the question of whether, in this form of action, if" the proofs warranted it, a bona fide possessor of lands could recover against the rightful owner the value of improvements made by him, we are satisfied that, in any view of the case, the proceedings in the trial court were fully as favorable to the plaintiff as they ought to have been.
Judgment is affirmed.
The other Justices concurred. | [
-45,
66,
-1,
-25,
-38,
37,
4,
-1,
60,
-21,
-54,
-5,
14,
39,
-8,
26,
-63,
10,
-7,
35,
24,
-4,
-20,
-13,
-30,
-4,
2,
-5,
-25,
-14,
17,
20,
-29,
11,
-3,
1,
-4,
-7,
-8,
12,
-15,
40,
-22,
-20,
38,
44,
22,
-1,
22,
-48,
13,
29,
-3,
-46,
-55,
37,
-25,
32,
-30,
-5,
-1,
-38,
3,
15,
47,
12,
14,
15,
10,
-27,
1,
36,
-1,
-33,
39,
-8,
-22,
20,
-18,
-26,
-3,
16,
-23,
-29,
-35,
23,
-27,
11,
-25,
18,
-3,
-22,
-7,
44,
48,
35,
-21,
34,
2,
23,
-10,
37,
-36,
-31,
18,
-12,
-4,
-35,
-33,
-19,
10,
5,
-14,
-15,
15,
-7,
10,
-32,
51,
20,
14,
-50,
-17,
-8,
45,
22,
-21,
33,
-35,
-25,
23,
-11,
-29,
20,
1,
-47,
-51,
6,
-16,
-5,
-20,
25,
-5,
0,
8,
-33,
20,
4,
0,
-24,
-11,
13,
-7,
-37,
-25,
7,
62,
-3,
40,
-20,
40,
10,
26,
-12,
-82,
8,
-46,
-8,
-10,
48,
19,
-25,
17,
-46,
1,
-54,
18,
11,
-32,
0,
37,
-46,
-5,
7,
-44,
-56,
22,
-27,
-34,
24,
52,
-1,
21,
-64,
-46,
70,
2,
-24,
-35,
25,
44,
-78,
-10,
26,
-27,
-44,
23,
35,
-23,
52,
34,
26,
0,
6,
22,
7,
-1,
-17,
34,
-28,
49,
7,
24,
1,
-8,
7,
0,
9,
22,
13,
-8,
-3,
29,
0,
-25,
-2,
33,
-21,
14,
19,
11,
29,
7,
-9,
-29,
-36,
-32,
-9,
6,
51,
-53,
-30,
-74,
-25,
8,
43,
-10,
-16,
-5,
-22,
-1,
56,
-28,
39,
19,
-9,
-46,
35,
-30,
-13,
-5,
2,
33,
17,
-15,
26,
46,
4,
-16,
23,
26,
-27,
20,
64,
7,
33,
23,
12,
-10,
6,
20,
5,
-21,
8,
-6,
24,
19,
20,
24,
-12,
-35,
3,
-51,
-23,
1,
43,
0,
-29,
41,
43,
15,
15,
-15,
25,
-2,
37,
10,
-3,
-8,
-33,
12,
26,
-50,
-49,
40,
74,
15,
-24,
-37,
48,
33,
17,
-6,
43,
7,
9,
13,
-36,
-20,
-21,
49,
50,
14,
52,
41,
-7,
-28,
4,
62,
5,
-19,
-18,
12,
-60,
-24,
-23,
-16,
-5,
14,
17,
27,
31,
48,
-12,
-4,
-53,
-54,
0,
16,
-18,
28,
26,
13,
33,
11,
2,
20,
-15,
-26,
21,
-14,
-26,
-6,
30,
44,
17,
0,
-19,
-67,
5,
-22,
-49,
-2,
68,
40,
8,
13,
-2,
-73,
-91,
-4,
14,
4,
37,
-22,
32,
-9,
9,
33,
-16,
19,
-21,
37,
-41,
23,
-26,
51,
-39,
43,
49,
26,
25,
-15,
-11,
-10,
22,
-6,
-23,
-39,
43,
-20,
4,
44,
2,
27,
35,
-32,
-27,
-47,
-12,
2,
59,
37,
-6,
-13,
-10,
-31,
28,
27,
-3,
-36,
3,
-40,
15,
-10,
0,
4,
-36,
59,
-1,
31,
20,
-3,
-11,
-28,
13,
-16,
-41,
-7,
48,
-19,
72,
38,
-18,
0,
-40,
47,
-4,
-40,
19,
-16,
-77,
19,
6,
-58,
-37,
29,
-2,
28,
7,
73,
22,
47,
-6,
54,
-18,
-13,
-22,
102,
12,
-22,
15,
9,
-46,
7,
41,
-17,
-20,
-10,
24,
29,
-51,
10,
3,
30,
36,
-31,
-41,
26,
-24,
12,
-48,
-26,
4,
6,
55,
28,
11,
18,
-28,
-16,
-18,
-43,
18,
2,
-14,
15,
10,
-48,
-42,
-1,
-5,
14,
26,
-13,
-6,
13,
-62,
33,
-33,
-33,
-3,
-32,
-16,
-19,
-7,
-57,
-60,
-7,
-4,
-36,
-48,
13,
-76,
12,
-9,
0,
-37,
-34,
14,
-71,
-21,
12,
-41,
4,
21,
-26,
-32,
7,
49,
-41,
-65,
-111,
-15,
37,
45,
1,
9,
-48,
60,
-43,
3,
-52,
-18,
31,
17,
-31,
70,
41,
-9,
7,
1,
-19,
-22,
25,
-18,
-19,
11,
7,
54,
-2,
-15,
2,
52,
87,
51,
49,
-12,
19,
17,
4,
-29,
4,
-17,
26,
-1,
22,
19,
-53,
55,
3,
40,
-32,
40,
5,
-12,
41,
8,
21,
0,
14,
-29,
-80,
-10,
15,
12,
-56,
20,
-4,
7,
-13,
5,
30,
13,
-5,
34,
8,
24,
1,
-49,
63,
-15,
9,
26,
-30,
-40,
2,
3,
0,
12,
8,
-4,
-16,
-16,
-17,
-38,
-31,
75,
36,
20,
51,
0,
26,
17,
11,
-33,
-28,
26,
2,
-7,
-21,
12,
-26,
8,
-1,
0,
-31,
5,
32,
-9,
15,
69,
43,
29,
-31,
6,
-34,
-45,
-18,
-13,
52,
-27,
-6,
29,
-5,
27,
52,
-36,
-21,
0,
29,
-19,
11,
-39,
12,
-22,
11,
-9,
-25,
17,
12,
13,
-2,
-17,
-20,
-21,
22,
-1,
-5,
-10,
4,
-69,
-33,
-7,
-13,
14,
34,
20,
-70,
7,
-23,
-21,
38,
39,
32,
-31,
-24,
24,
-38,
-22,
11,
0,
9,
1,
17,
-3,
-23,
-49,
15,
7,
-22,
8,
-37,
4,
54,
-3,
30,
-10,
9,
-16,
-15,
-3,
26,
-18,
17,
-16,
45,
-14,
50,
-44,
-24,
-14,
-23,
17,
-27,
24,
-6,
-8,
22,
-27,
3,
23,
-54,
10,
-39,
-3,
-41,
40,
-25,
63,
-20,
-33,
-22,
-27,
-7,
-18,
-16,
32,
-3,
13,
-36,
59,
23,
-5,
-25,
35,
-3,
16,
41,
-14,
49,
2,
-12,
-1,
44,
-38,
15,
24,
-7,
-4,
-10,
-14,
-10,
-76,
5,
1,
-18,
5,
-16,
9,
-72,
-43,
0,
-6,
-24,
-26,
5,
21,
-32,
-1,
23,
-20,
-68,
-7,
-35,
12,
-10,
-61,
-12,
-9,
-20,
38,
-20,
26,
40,
-29,
13,
-63,
-5,
-23,
-7,
-9,
41,
-4,
-38,
16,
4,
-21,
18,
67,
-32,
-11,
17,
29,
-33,
1,
-6,
-2,
-25,
52,
-23,
-29,
-14,
46,
-65,
-11,
47,
-26,
39,
-16,
-46,
-48,
-43,
-42,
-79,
20,
-39,
-65,
2,
-4,
31,
12,
-42,
-14,
-52,
26,
5,
34,
1,
28,
-22,
-15,
4,
-3,
34,
7,
-8,
-56,
27,
23,
13,
0,
-32,
23,
-32,
-4,
8,
3,
-3,
6,
23,
18,
2,
45,
-37,
-36,
-22,
-22,
-11,
-23,
31,
47,
10,
-27,
13,
-13,
47,
2,
34,
-62,
4,
-32,
-8,
-13,
59,
6,
-4,
19,
-5,
-36,
5,
4,
-7,
74,
20,
-44,
29,
-25,
-17,
-11,
-24,
-17,
36,
-35,
17,
-27,
-23,
31,
-47,
-24,
-10,
-27,
4,
12,
27,
-22,
25,
45,
22,
-19,
-48,
-2,
44,
23,
3,
49,
-18,
9,
63,
-15,
29,
25,
-2,
75
] |
Grant, C. J.
The defendants were the owners of a large tract of pine land in "Wisconsin, which they sold to one Don J. Leathers in March, 1892. One Henry Gamble claimed to have a contract with the defendants for the sale of these lands for 2-J- per cent, commission, and that he procured the purchaser. He assigned his claim to the plaintiff. Upon the merits of the controversy, plaintiff stands in the same position as though Mr. Gamble were the plaintiff. Mr. Gamble had advanced $12,932 towards the purchase of this land, and by written agreement dated November 3, 1888, was to receive from the sale that amount, with interest, and one-third of all the net profits. No profits were made. The first conversation in regard to a commission was had in May or June, 1891, between Mr. Gamble and Mr. Lindsay. This conversation is unimportant, as Mr. Lindsay informed Mr. Gamble that the entire matter was in the hands of Mr. Paine. Mr. Gamble thereupon went to Mr. Paine’s office. Mr. Gamble testified that Mr. Paine agreed to allow him a commission of 2-¿- per cent, on whatever amount was received, and promised to give him a memorandum in writing to that effect, but could not give it to him then on account of negotiations with another party, from whom he had not heard. Mr. Paine testified that the contract was a commission of 2{- per cent, upon a sale for $210,000. Mr. Gamble states the conversation as follows:
“I asked Mr. Paine what price he asked for the timber. ‘Well,’ he says, ‘the asking price is $210,000, but, if you find a purchaser, we will make the price all right;5 but the asking price must be $210,000, because, if he offered it lower, they would try to beat him down; they would try to get it for less.55
Mr. Paine testified that Mr. Gamble asked for an option, which he refused; that the price at which Gamble was authorized to make a sale was fixed at $210,000, with a commission of 2£ per cent.
The result, aside from the written evidence, depended entirely upon the testimony of three witnesses, — Gamble and Leathers for the plaintiff, and Mr. Paine for the defendants. As to their verbal conversations in regard to the contract, their testimony is in direct conflict, and, so far as the result depended upon them, the question was for the determination of the jury.
Certain written evidence is important. The first communication, after the above conversation, shown by the record, is a letter from Paine to Gamble, June 20, 1891, as follows:
“Dear Sir: I find I cannot give option just now; may be next week. If and when the men are ready to go in and estimate, let me know, and I will try and arrange for you.55
To this Gamble replied as follows:
“Dear Sir: Your letter received. You say you are not able to give an option until parties are ready to go on. The men are here now, and ready to go on, if they can get a 30-day refusal. If you will send me a refusal immediately, we will go at once, and look the land. Of course, I gave them to understand that I could get the refusal any time they were ready to go and look the same. They are parties who intend looking with a view to lumbering same next winter. If anything is done in the matter, it must be done at once.55
June 23d, Paine replied by telegraph as follows:
“Three applications for the pine. Name your parties. Price, $210,000. Will give 15 days, and extend then if trade on. If sold by you, 2£ per cent, commission to you.55
June 24th, Gamble replied by letter:
“Dear Sir: The party waiting to examine Ashland timber went, the day I received your telegram, to Toledo, and will return Sunday. If he is still desirous of examining timber, I will wire you Monday. I will try to sell it to him at $210,000, with the understanding you are to pay 2£ per cent, commission on whatever price it is sold for. This party’s land-looker is more liberal in estimating than any other man in the valley, and, if he should decide to examine the timber, the chances of a sale are good. ”
To this letter Paine made no reply. Gamble did not make the sale referred to in that letter, and did not disclose to defendants the name of the party. Nothing further appears to have been done until in September following, when negotiations were opened with Mr. Leathers by Gamble, resulting in a sale to him. Mr. Gamble and Mr. Leathers went to Detroit in October to see Mr. Paine. Meanwhile Mr. Leathers and the West Michigan Lumber Company each had put a man on the lands, and had them examined. Leathers at the same time gave the West Michigan Lumber Company a price of $200,000. In the interview at Detroit, Mr. Leathers offered Mr. Paine $173,000. Mr. Leathers put this offer in writing, Mr. Paine informing him that he could not accept that offer without authority from Mr. Lindsay, who was then away from home. Mr. Leathers went to Kentucky immediately. Mr. Paine communicated the offer to Lindsay, who authorized the sale, and acceptance was wired to Leathers. At that interview, Mr. Paine testified that he asked Mr. Gamble about his commission if they made a sale for less than $210,000, and that Gamble agreed to take $2,000. Gamble testified that his commission of $2,000 was conditional upon the sale being made for $173,000, but, if the sale was for more than that sum, then he was to receive 2-J- per cent, on the total amount.
Subsequently, when the parties met to carry out the agreement and convey the lands, it became known for the first time to Mr. Paine that the West Michigan Lumber Company was to pay Leathers $200,000 for the land. In this connection Gamble testified that he knew that the West Michigan Lumber Company was interested; that its estimator went upon the land with the one of Leathers; that he supposed Leathers was a part of the lumber company; and that he did not communicate to the defendants what knowledge he had in this matter. When Paine ascertained that the lands were to be sold for $200,000, he charged Leathers -with misrepresentation at the time his offer was made. Negotiations were thereupon temporarily suspended. Defendants, however, were anxious to dispose of the land, upon the sale of which, in any event, they were to be losers, and tendered to Leathers the deed of Mr. Lindsay, as the surviving partner of Lindsay & Gamble, a partnership formerly owning the lands. The West Michigan Lumber Company was in doubt as to the validity of this title. It was thereupon agreed that Mr. Paine should perfect the title by securing deeds from the heirs of the deceased Mr. Gamble, and, failing in that, he should perfect the title by proceedings in chancery, and, in consideration of this, the price was increased to $185,000. Mr. Paine carried out this agreement, and the money was finally paid in March, 1892. Plaintiff recovered verdict and judgment for 2-j- per cent, commission for the total amount of the sale.
The principal assignment of error is the refusal of the court to direct a verdict for the defendants, for the reason that Gamble was guilty of bad faith towards defendants in his dealings with Leathers. Upon this point the court instructed the jury as follows:
“If Mr. Gamble gave Mr. Leathers such information, or made to him such statements, as to cause Mr. Leathers to become satisfied that the defendants would not insist upon the price asked, and that he could press them into accepting a substantially less price for the pine, Mr. Gamble was guilty of bad faith towards the defendants, and his assignee, the plaintiff, Mr. Harvey, would not be entitled to recover any compensation for what he may have done in connection with the deal with Mr. Leathers.”
We are not satisfied that bad faith was conclusively proven. Defendants’ counsel base the above request principally upon the testimony of Leathers that Gamble gave him an option, and that about the same time Leathers gave the West Michigan Lumber Company the price of $200,000. This option was not produced, and there is no evidence of the price stated therein, except as it may be inferred from the contemporaneous offer of Leathers to the lumber company for $200,000. It does not conclusively follow that because Leathers named a less price to the lumber company, or it offered a less price, the option to Leathers was for less than the price named by Paine to Gamble. Leathers might have hoped to get it for less than the amount named.. Without going fully into the testimony, which would be profitless, we think that the question was properly submitted to the jury. No fault was found with the charge as given if the question of bad faith was for the jury to determine.
Error is assigned upon the admission of the letter of June 24th from Gamble to Paine. It is urged that the telegram of June 23d from Paine to Gamble was the latter’s sole chart to guide him in his negotiations; that the letter made no change in the terms of the telegram unless approved by Paine; that it never was approved; and that Paine’s silence did not authorize Gamble to proceed under his letter. All this may be conceded, and yet the letter be admissible as throwing light upon the parol contract. All the conversations, letters, and telegrams were admissible to aid the jury in determining what the contract was.
Pour errors are assigned upon the ruling of the court excluding certain questions put to Gamble upon cross-examination. The cross-examination was long and searching. We think the rulings of the court in rejecting the testimony were proper. They are not of interest or importance to the profession, and therefore we do not discuss them.
Judgment affirmed.
The other Justices concurred. | [
46,
39,
10,
15,
8,
16,
10,
36,
6,
-5,
21,
-31,
28,
18,
53,
-21,
7,
-9,
24,
12,
66,
-57,
-1,
18,
-1,
-42,
-18,
-9,
-30,
27,
43,
-25,
-11,
-22,
-27,
12,
1,
5,
-38,
19,
17,
-29,
18,
38,
26,
17,
-13,
-57,
40,
12,
73,
6,
50,
-35,
-36,
-12,
33,
17,
-3,
6,
-37,
-71,
21,
14,
40,
-29,
-6,
11,
56,
0,
-3,
7,
25,
24,
57,
-13,
-40,
-10,
-23,
9,
24,
12,
31,
8,
-25,
24,
9,
-36,
59,
45,
1,
-8,
-12,
31,
7,
13,
69,
13,
-18,
34,
48,
-3,
-37,
-5,
15,
-16,
-3,
-16,
-7,
1,
-7,
4,
38,
-26,
-40,
-7,
-33,
-15,
22,
-16,
-11,
-43,
1,
42,
-29,
38,
-17,
-26,
-41,
-8,
14,
-37,
-32,
-6,
26,
-11,
-41,
-25,
-69,
-9,
18,
33,
-60,
-9,
14,
-40,
-14,
23,
-9,
9,
16,
-3,
13,
27,
26,
-25,
21,
26,
70,
-62,
53,
22,
-24,
-58,
-40,
-33,
23,
-22,
-13,
46,
45,
40,
-28,
-55,
-24,
-6,
61,
-27,
-9,
11,
-46,
14,
22,
2,
29,
-42,
19,
14,
-11,
36,
8,
17,
-6,
-27,
-50,
36,
-37,
13,
0,
18,
1,
-64,
-8,
0,
-19,
17,
6,
0,
-6,
14,
-11,
63,
-30,
-70,
-10,
64,
-57,
-25,
35,
-42,
80,
18,
5,
56,
-41,
-36,
62,
10,
-3,
-27,
-3,
48,
-7,
-6,
-12,
-19,
1,
-6,
-1,
6,
1,
-37,
-37,
2,
-15,
-17,
-75,
3,
-25,
40,
-45,
8,
-47,
68,
-35,
8,
3,
-20,
-59,
-51,
-66,
-15,
-35,
5,
21,
-52,
-33,
10,
23,
19,
-9,
-21,
9,
30,
-23,
3,
25,
-31,
-28,
-18,
0,
-21,
-21,
33,
-10,
19,
-10,
10,
-71,
-11,
51,
24,
57,
-81,
74,
32,
0,
24,
42,
-58,
-35,
-5,
10,
-30,
17,
32,
22,
-4,
-1,
-2,
-34,
-9,
-24,
-5,
-2,
4,
0,
-3,
20,
-65,
1,
18,
-9,
-8,
11,
26,
31,
-32,
-32,
25,
-45,
3,
-14,
-21,
-7,
-26,
-6,
-29,
-24,
-12,
18,
13,
8,
0,
4,
-4,
-12,
-32,
31,
13,
-5,
-47,
-3,
-3,
-46,
14,
27,
5,
24,
-7,
40,
23,
24,
-30,
7,
-15,
-51,
-3,
42,
-4,
-48,
43,
37,
-59,
4,
16,
11,
-3,
-74,
-22,
19,
38,
36,
39,
39,
18,
-34,
28,
-30,
-11,
-26,
-34,
-18,
72,
10,
38,
-13,
-80,
-48,
-50,
15,
23,
39,
10,
-43,
0,
12,
-59,
40,
13,
46,
-40,
19,
-53,
35,
-43,
19,
29,
0,
35,
50,
-11,
24,
2,
65,
0,
38,
20,
-9,
-12,
-36,
-25,
33,
-16,
11,
-29,
-57,
-24,
-42,
10,
-16,
23,
26,
32,
28,
-16,
5,
32,
4,
15,
0,
7,
-50,
26,
-57,
16,
49,
-57,
16,
17,
23,
46,
24,
-29,
30,
20,
8,
-26,
12,
47,
12,
55,
0,
-36,
-39,
-24,
37,
-63,
38,
-7,
17,
-1,
35,
-11,
-24,
-20,
-11,
15,
-3,
-30,
14,
-22,
22,
-54,
-38,
17,
4,
-3,
21,
38,
-41,
-18,
-7,
-6,
5,
0,
27,
-27,
30,
49,
-30,
-15,
-18,
-44,
26,
33,
21,
-24,
-41,
19,
9,
9,
-19,
-22,
6,
31,
46,
20,
45,
-40,
-13,
-38,
-6,
-22,
-2,
-17,
2,
-19,
-5,
-23,
-26,
-7,
52,
43,
-13,
-1,
27,
11,
43,
-11,
-13,
-15,
49,
-20,
-32,
41,
15,
-35,
-4,
27,
5,
24,
-15,
-82,
55,
-17,
20,
14,
19,
58,
-10,
-39,
-12,
39,
-32,
-32,
-49,
8,
25,
86,
-59,
-69,
-25,
-39,
13,
9,
20,
19,
-47,
7,
-15,
6,
-42,
-12,
-35,
19,
70,
11,
55,
20,
9,
7,
-59,
-27,
-14,
-19,
-55,
35,
44,
22,
-14,
22,
73,
16,
54,
46,
34,
-29,
22,
9,
25,
-27,
22,
-35,
13,
21,
25,
11,
-40,
21,
-1,
-26,
11,
59,
8,
-2,
20,
26,
-41,
23,
3,
-29,
-42,
-24,
-16,
54,
-47,
26,
-27,
-47,
-25,
-38,
19,
-3,
14,
17,
-22,
44,
5,
0,
56,
-21,
-25,
-34,
-12,
-38,
-49,
-3,
-5,
7,
7,
-27,
-17,
-25,
-11,
-5,
26,
45,
0,
55,
53,
8,
30,
-46,
30,
21,
-17,
26,
-39,
2,
0,
10,
-3,
-2,
11,
-17,
-24,
-20,
-17,
-61,
22,
31,
5,
23,
31,
-21,
-19,
2,
-16,
-4,
51,
25,
-21,
5,
-16,
15,
-11,
17,
-24,
-52,
-10,
-51,
35,
-16,
21,
25,
6,
-6,
-19,
-22,
-9,
42,
-22,
-3,
-38,
-6,
-26,
15,
-27,
-38,
-17,
-18,
-47,
20,
-5,
-13,
12,
19,
-9,
17,
7,
-32,
0,
48,
48,
-48,
-61,
33,
-39,
-21,
9,
26,
-25,
-33,
-27,
26,
13,
-82,
35,
19,
18,
-18,
-63,
21,
18,
-48,
6,
48,
7,
1,
11,
-72,
-8,
19,
-45,
-50,
20,
-43,
15,
21,
-10,
-34,
11,
-4,
-56,
-72,
29,
11,
14,
-54,
0,
-7,
0,
26,
-26,
-20,
31,
15,
-10,
0,
-40,
-23,
3,
-13,
-10,
-33,
-14,
-12,
-4,
26,
2,
1,
10,
27,
0,
3,
24,
-20,
-61,
0,
21,
2,
-23,
-45,
42,
13,
-14,
-36,
-2,
32,
49,
-13,
8,
12,
59,
-19,
-44,
18,
-50,
-3,
-39,
26,
-38,
26,
-61,
-36,
-7,
14,
34,
36,
-22,
-3,
-35,
27,
8,
-19,
41,
0,
4,
-10,
22,
33,
-32,
-13,
-11,
15,
-16,
-13,
46,
-38,
-61,
-39,
-31,
-5,
-14,
-9,
24,
3,
2,
45,
2,
-73,
-45,
-18,
25,
-38,
23,
-15,
25,
38,
-16,
3,
30,
26,
-18,
-20,
7,
25,
31,
39,
27,
-43,
-30,
-26,
-47,
32,
24,
12,
29,
43,
30,
26,
-28,
27,
-6,
18,
12,
21,
-3,
24,
-41,
23,
-13,
-15,
-29,
37,
27,
-45,
-5,
-22,
37,
18,
-1,
17,
-45,
-44,
36,
-10,
15,
36,
33,
25,
35,
60,
-48,
-24,
-41,
20,
-23,
-10,
-21,
24,
56,
25,
39,
70,
58,
52,
-21,
-13,
37,
-24,
-16,
-33,
12,
53,
7,
-24,
22,
-21,
30,
14,
-36,
30,
40,
47,
-18,
-23,
-26,
4,
-5,
14,
7,
-22,
18,
-32,
-39,
10,
-7,
-53,
-23,
-35,
-28,
5,
3,
-25,
41,
86,
36,
-53,
-47,
-4,
28,
3,
-31,
34,
73,
-23,
7,
-69,
22,
13,
14,
43
] |
Long, J.
The declaration was upon the common counts in assumpsit, with copies of three notes attached. The first note is for $25, dated September 4, 1895, due four months after date, and payable to J. W. Bird or order, signed “Ann Newton,” and indorsed “J. W. Bird.” The second is for $100, dated December 4, 1895, due 15 days after date, payable to the plaintiff, and signed “ Ann Newton” and “William Newton.” The third is for $1,983.64, dated November 10, 1895, due 60 days after date, payable to the plaintiff, and signed “Ann Newton” and “William Newton.” Defendant pleaded the general issue, and gave notice that she was a married woman at the time the notes sued upon were signed, and that she never executed them herself, or authorized any one else to execute them for her, and that, if they were signed by William Newton, her husband, no consideration ever passed to her or her estate for the signing of said notes.
It appears that William Newton, the husband of defend ant, had a deposit account with the plaintiff, beginning in 1869 and continuing to September, 1877. June 26, 1878, an account was opened with the plaintiff in the name of Mrs. William Newton. No account thereafter was kept at the bank with William Newton. Soon after the account was opened with Mrs. William Newton it was changed to Ann Newton, and was thenceforth so continued. It appears from plaintiff’s testimony that, for many years prior to 1878, William Newton was engaged in importing, buying, and selling sheep and cattle. In 1876 he conveyed his farm and stock to his wife, and thereafter continued to live with her upon the farm. The buying, importing, and selling sheep and cattle was continued, and the account was kept in the bank in the name of Ann Newton. Deposit of moneys was made from time to time, and a large number of checks were drawn on the account and money paid thereon. Notes were frequently given for overdrafts, and when these notes were due they were frequently renewed, and all overdrafts included in the new notes. All this business was done in the name of Ann Newton, her husband, William Newton, assuming to act as her agent. This continued from July, 1878, to January, 1896, without question. The accounts were frequently overdrawn, when cards were sent to the defendant personally, and she came to the bank, and inquired relative to them, and, having been informed as to the matter, often replied that her husband was absent, and when he returned “he would attend to the matter, as he looked after her business.” It appears that the arrangement between the defendant and the bank was originally made with John D. Norton, who was then president of the bank, but who died in March, 1895. -
Mr. Jacobs was called as a witness'for plaintiff, and testified that he had been in the employ of the bank as cashier and teller for over five years, and that on two occasions the defendant had come to the bank with a postal card sent out by the bank to her, which read: “Please call at the First Commercial Bank;” that she handed this card to him at the window, and said: “I suppose this refers to my notes. Mr. Newton is away, and he attends to all my business for me, and as soon as he comes I will see to it.” This was in 1892. Mr. John D. Norton was living at that time. The account was still continued in this way until the present notes were given. The $25 note had been purchased by the bank from Mr. Bird. January 17, 1896, all these notes had become due; and witness Jacobs testifies that he took them to Detroit to meet the defendant, and asked her to secure them by mortgage; that defendant said she would not sign the mortgage until she had seen her husband, as he always attended to her business affairs, and she thought he would be home the next day, and that she would then give the mortgage after she had seen her husband; that on the next day defendant’s husband and Jacobs again went to Detroit and saw defendant; that she would not then sign the mortgage, claiming she was sick, but said she would sign it as soon as she got home. This mortgage was never signed. Evidence was also given by the plaintiff showing, or tending to show, that the defendant’s husband had acted as her agent since 1878, in all her matters of buying and selling sheep and cattle and in the dealings at the bank.
The defendant testified that she never had any business transactions with the bank; that she was not engaged in business from 1878 to 1895; that her husband was not her agent; that he had no authority to sign her name; and that she was in no way indebted to the plaintiff. She also denied the conversations with Mr. Jacobs at the bank in 1892. As to the $25 note, the defendant claimed it was given on account of clothing sold to her minor son. Mr. Bird, to whom the note was given, testified that the defendant had an open account at his store in which goods were charged to her; that he made statements of the account to her, and had talked with her about it, and had delivered goods to her; that this note was given for her personal account, — that is, the account was due from her personally; that it was given for an account for clothing for the minor son, and charged to her account, and which she directed to be so charged.
Two special questions were submitted to the jury at the request of counsel for defendant :
“1. Did Mrs. Newton personally ever open an account in her own name with the plaintiff bank ?
“2. Was Mrs. Newton in partnership with her husband in any business at the time the notes in question were given, or during the time which intervened between that time and the giving of the notes to extend or consolidate which the notes Exhibits B and C — the notes sued upon — were given ? ”
Both these questions were answered in the negative by the j ury.
The court, at the request of plaintiff’s counsel, submitted to the jury the following question:
“Do you find that William Newton, by authority of Ann Newton, opened an account with the plaintiff’s bank in her name ? ”
The jury answered this question in the affirmative.
The jury returned a verdict for the plaintiff for the amount of its claim as represented by the three notes, to wit, $2,380.69.
The court charged substantially that the defendant, being a married woman, could not become liable on the promissory notes, whether signed by herself alone or jointly with her husband, unless such notes were given in reference to her separate property, either already owned by her or to be acquired by the avails of the notes.
The plaintiff’s claim on the trial was that the defendant’s husband signed her name, to the two larger notes; that he was her agent in all her business transactions, and was authorized to sign checks and notes in the conduct of such business. Mr. Norton, the president of the bank, having died before the trial, no direct evidence could be given on that subject by the plaintiff. The defendant failed to call her husband as a witness, so that the entire case was made up by the evidence heretofore referred to and the circumstances surrounding the various transactions, extending over many years.
Plaintiff was permitted to show that the title to the farm had been transferred to the defendant by her husband; that the two larger notes were made up of overdrafts in the defendant’s account. The court was not in error in permitting this proof.
Other evidence was given by plaintiff showing several contracts in reference to the purchase of sheep and cattle by defendant’s husband, in which the defendant took part in making arrangements for the transfer of the property. Objection was made to this on the ground that it had no relation to the notes in controversy. It was competent for the purpose of showing that William Newton was in fact the agent of defendant in her dealings in sheep and cattle, out of which deals the bank account was made up.
It is contended that there was no evidence given by plaintiff showing, or tending to show, that the notes in suit related to the defendant’s sole property. We cannot agree with counsel in this contention. The farm was deeded to defendant by her husband, and the proofs tended to show that from that time forward the business was carried on by the wife, and the bank account and notes grew out of these transactions, and had relation to her separate property. It is settled in this State that our statutes do not authorize a married woman to become personally liable on an executory promise except concerning her separate estate. But it is also well settled that a married woman may carry on business in her own name, and for that purpose may make herself personally liable for a purchase of property on credit, and her husband may act as her agent. Rankin v. West, 25 Mich. 200. This case has since been followed, but it is unnecessary to cite the cases.
It appeared that the $25 note was given to Mr. Bird in settlement of a personal account of the defendant, a portion of it being for clothing purchased by her for a minor son. In Campbell v. White, 22 Mich. 178, the question was whether a married woman living with her husband, who had bought articles of family use for the members of her husband’s family, as well as for herself, could be held personally liable therefor. It was said:
“The liability of the wife was consequent upon her obtainment of the goods on her sole credit and individual promise to pay for them, and was therefore contemporaneous with such obtainment, and not conditional upon the kind of use to which the goods should be subsequently put. Her right to acquire upon her own credit was complete when the articles were obtained.”
Some claim is made that the defendant’s case was prejudiced before the jury by some remarks of the court during the progress of the trial. We do not think it important to discuss that question, as, from an examination of the record, we can see no prejudice to defendant; and the same may be said of the remarks of counsel for plaintiff during the argument of the case.
But one other question need be discussed. Counsel for defendant asked the court to charge the jury that—
“ The notes sued upon [Exhibits B and C] are joint and several notes, upon which William Newton is liable upon simple proof of his signature. This proof has been given and is uncontradicted. His liability rests upon the fact of his signature, and that the consideration is presumed to have passed to him. Hence Mrs. Newton cannot be held upon either of these notes, because the statute limits her liability to be sued upon any contract or engagement made by her to cases where her husband is not in law liable.”
This was refused, and counsel now contend that, inasmuch as no suit had been brought against the husband, and no showing made that he had refused to pay, therefore, under section 6298, 2 How. Stat., no action could be maintained against the wife. This section provides:
“The husband of any married woman shall not be liable to be sued upon any contract made by such married woman in relation to her sole property, and the wife shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement.”
The jury found that the defendant and her husband were not partners, and the proofs show that the husband was the agent of his wife in making the notes. It is true that he signed them with her, and apparently as an accommodation indorser, though the notes in form are joint and several. The debt was her debt, and upon which she was personally liable. The husband stood as to' her like any other accommodation indorser, and it was not necessary to bring suit against him before suit could be brought against the wife, or to join him in the action. 2 How. Stat. § 7353. The contention of counsel cannot be sustained.
We think a fair trial has been had, and we find no error in the case calling for a reversal of the judgment. The judgment is affirmed.
The other Justices concurred. | [
22,
5,
26,
4,
14,
7,
52,
-42,
57,
27,
2,
-14,
25,
5,
-32,
38,
2,
-31,
47,
4,
-28,
-56,
-35,
-4,
14,
16,
51,
-12,
-13,
38,
-12,
10,
-27,
24,
-30,
10,
3,
-17,
-3,
-51,
6,
-47,
69,
-5,
-40,
-14,
-5,
3,
10,
-27,
20,
-47,
13,
-30,
-50,
-24,
-14,
-26,
-22,
23,
12,
-47,
34,
-41,
7,
1,
-35,
9,
-10,
-16,
19,
0,
-2,
-52,
-5,
-43,
-3,
12,
-64,
-13,
-22,
-15,
-19,
3,
-14,
-25,
-35,
-32,
-19,
-14,
-4,
24,
-23,
6,
-19,
-4,
-46,
33,
30,
33,
-8,
-27,
-4,
37,
-38,
40,
-47,
0,
-6,
3,
-38,
-1,
38,
-36,
0,
12,
-28,
18,
-65,
-47,
16,
12,
35,
0,
-10,
37,
-56,
5,
10,
50,
1,
-34,
-53,
11,
-37,
-12,
20,
-37,
-10,
-70,
9,
-15,
-36,
-10,
-23,
-5,
-50,
-5,
-11,
-21,
-38,
20,
-13,
49,
23,
-43,
-17,
-37,
-9,
-37,
3,
5,
8,
-15,
-25,
17,
-8,
11,
36,
-12,
13,
27,
-67,
7,
11,
14,
3,
-53,
22,
-29,
24,
19,
-32,
-10,
7,
-9,
-17,
1,
-21,
31,
-12,
-41,
7,
31,
18,
-22,
-15,
-28,
40,
-15,
34,
-30,
10,
0,
-9,
5,
30,
0,
-43,
-61,
-12,
-34,
-14,
-9,
-94,
-18,
27,
-51,
-3,
-21,
8,
-12,
-10,
52,
-25,
-71,
41,
-15,
-17,
21,
-3,
9,
55,
0,
-28,
51,
-4,
0,
62,
36,
-52,
-36,
-12,
-24,
26,
20,
-22,
-30,
-30,
24,
-19,
52,
-32,
50,
35,
28,
25,
-12,
25,
7,
-6,
7,
-11,
0,
36,
13,
19,
40,
-1,
3,
75,
-51,
7,
4,
-25,
-34,
-15,
-27,
-20,
-29,
51,
8,
-56,
1,
17,
-14,
-16,
11,
-22,
-3,
57,
-16,
-25,
-18,
63,
55,
-11,
-15,
-22,
6,
-34,
0,
9,
-15,
32,
-20,
9,
-57,
-66,
-79,
15,
31,
5,
-17,
7,
-37,
-5,
9,
9,
-18,
-3,
-7,
12,
43,
13,
54,
-9,
-29,
8,
22,
-4,
-10,
15,
-35,
16,
24,
5,
37,
-17,
-38,
42,
-13,
28,
33,
-34,
17,
-40,
-40,
-24,
0,
-17,
-45,
-34,
67,
31,
26,
10,
-6,
-14,
56,
35,
31,
0,
11,
13,
8,
6,
-23,
38,
23,
38,
13,
-35,
-54,
-21,
30,
-13,
-28,
23,
41,
-12,
-34,
-36,
50,
14,
-25,
-16,
-53,
-37,
12,
-21,
38,
-3,
19,
13,
-28,
34,
-29,
-73,
-14,
-18,
31,
67,
-30,
-22,
-2,
-6,
-39,
15,
23,
19,
5,
-33,
-15,
-21,
-49,
34,
-23,
39,
23,
-14,
13,
-4,
-34,
33,
-42,
43,
-11,
-43,
-8,
9,
30,
11,
40,
55,
-19,
-24,
33,
25,
17,
16,
43,
20,
54,
10,
2,
29,
-30,
50,
28,
36,
-21,
-24,
-11,
10,
29,
41,
-42,
6,
-25,
31,
15,
27,
47,
29,
9,
42,
-43,
41,
23,
-15,
-6,
24,
20,
-26,
6,
12,
6,
-36,
11,
-1,
4,
0,
-44,
4,
-9,
-72,
-48,
-6,
23,
50,
-16,
-44,
26,
28,
4,
-8,
-37,
-8,
-6,
21,
20,
64,
16,
2,
19,
-57,
-43,
0,
56,
1,
-48,
4,
-2,
-33,
16,
56,
4,
-46,
59,
11,
41,
-59,
15,
-19,
-7,
54,
20,
-26,
21,
-16,
24,
-24,
-9,
2,
2,
26,
27,
-10,
-58,
-22,
33,
82,
35,
-71,
38,
26,
-44,
-58,
12,
16,
-15,
62,
2,
-28,
7,
26,
5,
2,
-8,
-7,
-7,
-13,
-26,
61,
-29,
40,
-10,
17,
-37,
11,
-13,
36,
37,
15,
21,
-34,
-11,
-3,
18,
-5,
0,
-3,
-23,
8,
15,
-1,
10,
-10,
-18,
41,
-2,
-39,
-12,
38,
-48,
22,
-18,
8,
6,
10,
-36,
-39,
-16,
-26,
1,
-20,
27,
-38,
-35,
24,
78,
25,
32,
16,
-1,
18,
-29,
3,
-23,
39,
-6,
-18,
-8,
10,
-15,
-4,
-10,
14,
-52,
-23,
-83,
4,
71,
-65,
-7,
17,
15,
-26,
-58,
-2,
25,
16,
3,
22,
-1,
9,
14,
24,
-3,
9,
13,
7,
9,
-13,
-34,
39,
-15,
-6,
16,
3,
20,
43,
53,
-18,
-22,
38,
15,
3,
11,
25,
-38,
20,
-7,
38,
3,
-6,
-22,
43,
-63,
23,
13,
34,
38,
6,
14,
-13,
11,
-33,
20,
32,
2,
-18,
30,
23,
16,
16,
-11,
-59,
3,
26,
-1,
-1,
29,
43,
-28,
-28,
12,
9,
-44,
18,
-28,
25,
-36,
0,
-1,
-1,
26,
-17,
-19,
34,
-2,
22,
-83,
-20,
23,
31,
4,
-4,
-4,
20,
10,
-63,
5,
14,
35,
10,
2,
6,
-23,
12,
-5,
19,
16,
-14,
23,
-35,
-22,
3,
9,
25,
-3,
16,
36,
30,
32,
-41,
-56,
-3,
-77,
-15,
20,
-25,
-35,
-45,
-3,
-19,
-10,
-1,
-36,
-25,
0,
-29,
-31,
41,
3,
72,
-26,
16,
-4,
19,
-42,
-14,
-10,
10,
-29,
6,
9,
30,
46,
15,
-13,
39,
-22,
-37,
40,
-24,
-6,
-44,
-41,
-58,
19,
-20,
41,
0,
51,
-4,
57,
-46,
14,
-30,
-7,
8,
-61,
-4,
10,
2,
10,
-38,
-4,
-36,
33,
26,
14,
-20,
41,
-66,
21,
-24,
1,
-3,
-39,
6,
-3,
0,
60,
16,
6,
-52,
-9,
-44,
5,
5,
-42,
35,
-17,
10,
65,
33,
-76,
22,
8,
-11,
-13,
-68,
-82,
-8,
21,
-15,
6,
-11,
-35,
-25,
-36,
31,
-32,
1,
47,
30,
1,
-27,
-6,
-64,
29,
22,
33,
32,
-46,
10,
27,
-8,
-14,
-42,
78,
-3,
22,
1,
-32,
9,
0,
-19,
-47,
6,
-28,
15,
6,
32,
-38,
-12,
-12,
-13,
13,
-8,
18,
5,
4,
-26,
43,
13,
40,
48,
-15,
7,
-28,
-13,
48,
11,
21,
-13,
9,
9,
7,
-2,
11,
18,
48,
24,
24,
4,
35,
10,
-12,
-26,
14,
-1,
4,
-28,
-40,
49,
-35,
32,
27,
18,
-16,
28,
9,
-35,
-30,
-9,
-26,
-27,
34,
26,
30,
-21,
-8,
-16,
-1,
-29,
39,
-3,
24,
29,
-3,
-24,
-49,
0,
65,
12,
-38,
-4,
-42,
-27,
-30,
24,
1,
44,
-8,
-5,
-28,
36,
-51,
-57,
35,
-5,
-2,
-47,
29,
17,
-3,
32,
21,
12,
23,
59,
-11,
6,
2,
-40,
-16,
26,
-78,
36,
-11,
5,
-64,
3,
39,
-2,
-29,
-20,
-6,
9,
79,
5,
-1,
48,
48,
33,
37,
-15,
-15,
14,
29
] |
Long, J.
A petition in a tax proceeding was presented by George W. Carpenter to the circuit court, in chancery, of Muskegon county, for a writ of assistance to put him in possession of certain lands in that county. An answer and cross-petition were filed by Arthur Jones. It appeared that Mr. Carpenter applied to the auditor general in February, 1897, to purchase this property, which was held by the State under its bid for the unpaid taxes for the years 1891, 1892, and 1893. On July 27, 1897, the deed was issued to him by the auditor general. At the time of making the application for the purchase, he also paid to the auditor general th,e taxes and charges for the years 1894 and 1895. By the cross-petition of Mr. Jones, it appears that on April 3, 1894, he applied to the county treasurer of Muskegon county for a certificate as to the taxes on said property, and the treasurer signed and issued to him the following certificate:
“Office of County Treasurer, Muskegon County.
“I, the treasurer of said county, do hereby certify that no taxes are charged against lot 1 of block 123 of Durkee’s addition to the city of Muskegon, in said county, and that all taxes thereon are paid, as appears by the books in tins office.
“Dated Muskegon, Michigan, April 3, 1894.”
This certificate was made at a time when Mr. Jones was about to make a loan and give a mortgage upon the property; and, in the present proceeding, Mr. Jones testified that, to the best of his recollection, he had paid the taxes for the years 1891, 1892, and 1893, though he was unable to find the tax receipts. On October 23, 1897, Mr. Jones made application to the auditor general to have issued a certificate of error, and sent the auditor general, with such application, the certificate of the county treasurer heretofore set out. This application was denied. At the time of making this application, Mr. Jones redeemed the lands from the sale of 1894; and in his cross-petition he now asks that the sales for the former years be set aside, and he be permitted to pay the taxes on the lands for these years. Upon the hearing in the court below a rehearing was ordered. It was thereupon decreed that Mr. Jones might pay the taxes for the years 1891, 1892, 1893, and 1895 to Mr. Carpenter, with interest thereon from February 2, 1897; and the auditor general was directed to issue and deliver to Mr. 'Jones the certificate of error, canceling and setting aside the tax deed. From this decree, Mr. Carpenter appeals.
The case comes so squarely within the case of Hough v. Auditor General, 116 Mich. 663, that no comments need be made. The decree is affirmed, with costs against Mr. Carpenter, in favor of Mr. Jones, the cross-petitioner
The other Justices concurred. | [
19,
41,
0,
-15,
-43,
45,
23,
22,
28,
21,
4,
-57,
-38,
-21,
-9,
3,
24,
24,
8,
-27,
-8,
-30,
-20,
-18,
-18,
-1,
14,
11,
-26,
-8,
-16,
-4,
-44,
70,
48,
-33,
-29,
-16,
3,
-15,
-81,
-17,
-56,
10,
0,
-8,
12,
-54,
19,
16,
2,
1,
15,
-5,
19,
-9,
-13,
3,
41,
-20,
22,
5,
-8,
42,
-26,
-12,
-8,
-10,
63,
-43,
-2,
-12,
34,
-26,
21,
29,
14,
-4,
-40,
36,
-8,
-45,
-7,
-35,
-33,
-41,
-28,
-12,
14,
-2,
-23,
-47,
-13,
47,
53,
15,
5,
53,
-31,
41,
-39,
3,
-23,
14,
17,
-51,
-10,
-30,
-27,
-46,
13,
-64,
34,
-13,
-4,
0,
9,
10,
13,
-1,
-19,
-21,
24,
6,
25,
24,
-43,
-27,
16,
-20,
49,
14,
-35,
-20,
-17,
-26,
44,
-25,
10,
18,
-11,
58,
-14,
-41,
-30,
-29,
21,
-20,
38,
-13,
-57,
-13,
45,
1,
-9,
38,
18,
1,
22,
-25,
12,
7,
-10,
-68,
-37,
-36,
6,
15,
7,
2,
19,
33,
-4,
-22,
-14,
-10,
3,
66,
13,
31,
25,
5,
30,
3,
26,
-42,
-17,
-37,
16,
1,
22,
27,
-3,
-41,
-9,
65,
-16,
10,
-53,
-3,
11,
-16,
26,
-14,
16,
-10,
59,
-4,
-38,
30,
12,
-33,
-14,
36,
-9,
10,
-55,
9,
26,
-9,
42,
21,
25,
32,
12,
21,
59,
40,
-40,
10,
-3,
0,
24,
-34,
-30,
-4,
-19,
47,
-15,
1,
-56,
-34,
4,
1,
27,
-12,
-53,
-27,
27,
11,
-13,
-10,
-56,
-20,
-26,
6,
13,
-10,
13,
17,
-7,
23,
-18,
-30,
-39,
-23,
38,
16,
-26,
5,
6,
49,
24,
25,
-32,
12,
16,
-1,
-29,
10,
34,
-82,
4,
12,
-1,
48,
-15,
41,
1,
-22,
-40,
11,
30,
14,
14,
-5,
-26,
-37,
53,
12,
-16,
38,
-33,
-21,
27,
-16,
-6,
-43,
28,
19,
75,
-20,
19,
29,
-14,
5,
56,
-8,
28,
33,
25,
-12,
-35,
44,
20,
48,
6,
2,
-33,
23,
-17,
-45,
-20,
-9,
-8,
0,
42,
-51,
24,
-23,
30,
-1,
49,
32,
-15,
-19,
-64,
-16,
11,
6,
-16,
-15,
-18,
64,
-40,
13,
11,
36,
-11,
32,
20,
43,
11,
17,
20,
-30,
-83,
-27,
22,
13,
12,
1,
-56,
59,
-28,
-8,
-26,
-34,
-70,
7,
-15,
29,
-16,
53,
26,
-11,
51,
-38,
8,
-17,
-18,
39,
27,
-16,
-6,
-14,
33,
-50,
-86,
-1,
-31,
72,
58,
36,
-39,
41,
16,
27,
42,
33,
30,
-22,
-6,
-38,
26,
-29,
-3,
1,
48,
-9,
47,
41,
-42,
-41,
29,
-49,
-44,
52,
4,
10,
-5,
20,
71,
6,
56,
-37,
-31,
19,
-2,
-16,
9,
21,
22,
-3,
-24,
-41,
-62,
30,
24,
-1,
32,
-12,
-35,
18,
-5,
41,
19,
-83,
54,
-26,
12,
-1,
-49,
-9,
23,
6,
-21,
-4,
30,
18,
-42,
34,
-29,
-67,
-60,
-43,
63,
-14,
25,
26,
-6,
-33,
-70,
35,
-26,
-69,
9,
-9,
-65,
-6,
56,
-32,
-26,
73,
17,
9,
-25,
-5,
73,
30,
-9,
30,
3,
18,
-25,
9,
6,
1,
-17,
7,
-32,
-18,
-12,
46,
-14,
33,
21,
-35,
24,
-2,
-15,
-14,
-41,
8,
53,
39,
41,
27,
-4,
16,
-22,
-51,
3,
16,
-37,
-15,
20,
68,
-10,
-4,
13,
14,
60,
24,
19,
35,
-10,
-13,
-13,
-23,
-15,
-18,
-41,
0,
-45,
-2,
-6,
-41,
-23,
-7,
3,
-76,
18,
-59,
20,
-33,
-11,
-73,
-44,
-28,
-4,
-24,
22,
-11,
24,
-6,
-57,
-86,
22,
52,
19,
-35,
11,
-29,
44,
37,
-22,
9,
-28,
1,
-30,
19,
-57,
41,
-2,
4,
-42,
70,
10,
-52,
-11,
-18,
16,
-8,
28,
22,
-25,
-1,
16,
21,
-27,
31,
46,
53,
-10,
20,
-25,
-64,
-12,
-26,
23,
20,
46,
2,
23,
9,
37,
-1,
-21,
14,
-4,
28,
-51,
11,
-14,
-6,
56,
-18,
17,
-18,
-2,
-32,
-89,
7,
-7,
-30,
-66,
-21,
-10,
-18,
-42,
3,
12,
46,
-5,
5,
33,
21,
61,
0,
73,
-33,
1,
47,
0,
-12,
13,
20,
54,
44,
-41,
-50,
-27,
-52,
-18,
-73,
1,
57,
46,
-49,
45,
36,
28,
34,
72,
-40,
-8,
-8,
-56,
3,
-15,
11,
-15,
39,
-19,
15,
-13,
8,
42,
37,
17,
38,
-2,
39,
-46,
32,
13,
-35,
5,
-33,
-43,
-8,
3,
14,
-6,
53,
12,
-24,
12,
-27,
-50,
-42,
-34,
-14,
55,
-16,
6,
-45,
-27,
-4,
-30,
17,
-19,
-56,
3,
-4,
12,
55,
-38,
-5,
8,
-34,
-22,
-14,
26,
16,
27,
39,
-59,
-12,
25,
21,
-12,
66,
7,
-71,
-54,
23,
-19,
27,
0,
5,
24,
20,
-15,
27,
-14,
3,
34,
4,
1,
53,
-25,
-2,
40,
-42,
-9,
18,
61,
-35,
12,
-35,
-8,
-23,
0,
-34,
29,
-20,
-3,
-31,
-19,
-41,
15,
-21,
-28,
-6,
56,
-5,
9,
-2,
-26,
19,
-6,
14,
37,
27,
-25,
29,
-55,
46,
-22,
46,
-29,
-100,
-17,
-5,
16,
52,
29,
-13,
-19,
22,
9,
-5,
-31,
1,
8,
58,
-42,
6,
16,
38,
-50,
-15,
45,
-73,
-9,
-2,
-43,
-2,
18,
-18,
-13,
-40,
-30,
-23,
-13,
1,
-48,
-15,
-47,
5,
-20,
13,
-20,
3,
35,
24,
6,
-13,
48,
17,
15,
-3,
-16,
-24,
-8,
-52,
10,
26,
17,
-50,
-56,
-25,
47,
-1,
30,
-4,
-35,
-9,
-42,
6,
18,
-38,
-8,
16,
43,
-25,
41,
47,
-35,
33,
6,
8,
27,
-32,
0,
1,
-68,
8,
32,
5,
17,
0,
9,
-32,
-5,
-7,
14,
52,
-11,
0,
-17,
-24,
-91,
-78,
0,
-40,
-15,
30,
27,
24,
-41,
29,
-43,
-5,
37,
40,
0,
12,
24,
34,
-27,
25,
27,
-14,
58,
-50,
37,
11,
52,
19,
-54,
-30,
-10,
12,
24,
10,
-2,
-6,
0,
-38,
44,
55,
12,
-36,
11,
-25,
-10,
5,
27,
20,
32,
19,
9,
16,
9,
-3,
54,
51,
-38,
-21,
-55,
22,
48,
27,
0,
11,
21,
-16,
35,
-40,
-22,
43,
-7,
-19,
11,
-44,
-38,
-23,
19,
24,
42,
-50,
11,
1,
4,
-14,
-24,
-44,
44,
-19,
-6,
-4,
45,
-16,
36,
18,
5,
4,
-51,
18,
49,
-31,
5,
16,
23,
43,
41,
-27,
14,
-26,
-41,
34
] |
Long, J.
This cause was heard before the court without a jury, and the following findings of fact and law made:
“1. On or about the 5th day of October, A. D. 1857, one Maranda J. Arrowsmith bought of John E. Powers a certain piece or parcel of land, situated in the township of Richland, in said county, and bounded and described as commencing twelve rods north of the southwest corner of section fourteen in said township, running thence.east ten rods, thence north six rods, thence west ten rods, thence south on section line six rods, to the place of beginning. Said land was duly conveyed to said Maranda J. Arrow-smith by said John E. Powers/by deed dated October 5, 1857, and duly recorded in the office of the register of deeds of said county.
“2. At some time prior to the conveyance of said land by said John E. Powers to said Maranda J. Arrowsmith, he, the said John E. Powers, built or caused to be built a fence along what he supposed to be the east line of said land, but, by mistake, said fence was built on a line two rods east of the true line of said land.
“3. On purchasing said land above described, said Maranda J. Arrowsmith went into possession of the same, and also into possession of a strip of land next adjoining thereto on the east side thereof, said strip of land being two rods in width east and west, and six rods in length north and south, and remained and continued in the possession and occupancy thereof until the fall of the year 1882, or the spring of the year 1883.
“4. In the month of September, A. D. 1881, the said Maranda J. Arrowsmith filed her bill of complaint in the circuit court for the county of Kalamazoo, in chancery, against said defendant George M. Evers, in which said bill of complaint she, the said Maranda J. Arrowsmith, expressly asserted that she never owned or had any title whatever to a portion of land in the southwest corner of the strip of land two rods wide and six rods long before mentioned; and, on the hearing of said cause, said Maranda J. Arrowsmith testified, under her oath, that she made no claim to any land except that which was covered by the deed, and that, if she was in possession of any land not included in her deed, she made no claim to it.
“5. On or about the 12th day of August, A. D. 1882, the said defendant George M. Evers, relying on the statements made by the said Maranda J. Arrowsmith in her said bill of complaint, and on her testimony given in said cause as aforesaid, purchased of the widow and heirs of Sylvester W. Mills the land in controversy in this suit, the said widow and heirs of Sylvester W. Mills conveying the same to said defendant by deed dated on said 12th day of August, A. D. 1882, the record title to said land being then in said Sylvester W. Mills, and the grantors in said deed being the widow and heirs and only heirs of said Sylvester W. Mills.
“6. Shortly after purchasing the land in controversy of the heirs of said Sylvester W. Mills, as aforesaid, the said ■defendant George M. Evers notified the said Maranda J. Arrowsmith that he had purchased said land, and requested her to vacate the same, to which said Maranda J. Arrowsmith expressed no objection to said defendant.
“7. In the spring of the year 1883, the said defendant ■George M. Evers entered into the possession of the land in ■ controversy, and built a fence on the line between the land in controversy and the land conveyed by said John E. Powers to said Maranda J. Arrowsmith, and removed ■certain buildings from said land in controversy and erected •other buildings thereon.- All this was done with the knowledge of said Maranda J. Arrowsmith, and without any objection by her to said defendant.
“8. The said defendant George M. Evers and his grantee, Lucinda Evers, remained and continued in the undisputed -possession .of said premises from the spring of the year 1883 until some time after November 8, 1895, with the full knowledge of said Maranda J. Arrowsmith, and without any objection by her to either said George M. Evers or Lucinda Evers, and with the apparent acquiescence of said Maranda J. Arrowsmith in such possession by said defendant George M. Evers and his said grantee.
“ 9. On or about November 8,1895, the said Maranda J. Arrowsmith executed and delivered a quitclaim deed of the premises in question to the plaintiff in this case, and said plaintiff afterwards attempted to take possession of said premises, but was not allowed by said defendants George M. Evers and Lucinda Evers to do so.
“10. The defendants George M. Evers and Lucinda Evers were in possession of said premises when the declaration in this cause was filed, and the defendant Patrick H. Gilkey was also in possession of the ice-house on said premises jointly with said defendant George M. Evers.
“I find from the foregoing facts the following conclusions of law:
“1. The plaintiff’s grantor, Maranda J. Arrowsmith, by her bill of complaint against said George M. Evers, expressly disclaimed all right and title to a part of the land of which she was in possession by reason of a mistake in the boundary of the land conveyed to her by said •John E. Powers.
“2. The plaintiff’s grantor, Maranda J. Arrowsmith, by her testimony in the case against said Evers, expressly disclaimed all her right and interest in the land not described in her deed from said Powers.
“3. The defendant in this case, George M. Evers, having purchased the premises in controversy in reliance on the disclaimer of said Maranda J. Arrowsmith of any interest in said premises, and said Maranda J. Arrowsmith having allowed said Evers to take possession thereof without objection to him by said Maranda J. Arrowsmith, and having allowed said Evers and his grantee to remain in possession of said premises for about 13 years, and to make improvements thereon, without objection to said Evers or his grantee by said Maranda J. Arrowsmith, she, the said Maranda J. Arrowsmith, would be estopped from claiming said land in controversy of said Evers or his grantee.
“4. From the facts above recited, the said Maranda J. Arrowsmith must be held-to have consented to the placing of the fence by said Evers on the true line between the land conveyed to her by said Powers and the land conveyed to said Evers by the heirs of Sylvester W. Mills, and to have acquiesced in said boundary established by said fence for nearly 13 years; and neither she nor her grantee can now claim any rights which might otherwise have belonged to her under her former possession of said land.
“5. The defendants are not guilty of unlawfully detaining the possession of the land in question from the plaintiff, and judgment should be entered for the defendants.”
Plaintiff brings error. It is claimed by counsel (1) that plaintiff’s grantor had acquired the title to this strip of land by adverse possession, and that the mere fact that she was mistaken in supposing that the land was included in her deed would not defeat her title so adversely acquired; (2) that the statements in the bill in chancery'were inadmissible in evidence; (3) that the estoppel should have been specially pleaded.
If it be conceded that plaintiff’s grantor had acquired title to this strip by adverse possession, yet, we think, the plaintiff was not entitled to recover. The testimony shows, and the court found from the conduct of plaintiff’s grantor, that she not only disclaimed title to this strip,. but that she consented to the placing o£ the fence along this disputed boundary line, and fixed that line as the true line between her premises and the defendants’. She had acquiesced in that as the true line for nearly 13 years before the- plaintiff purchased from her. The case is ruled by Manistee Manfg. Co. v. Cogswell, 103 Mich. 602.
The claim that such an estoppel must be pleaded has no force. The defendants were not seeking to establish their title by estoppel. They were permitted to show the actions of the plaintiff’s grantor in relation to the establishment of the true boundary line between the premises. It was admissible for this purpose.
We find no error in the record, and the judgment below must be affirmed.
The other Justices concurred | [
-53,
61,
4,
-8,
4,
10,
39,
26,
-15,
35,
-10,
-51,
-6,
-38,
-62,
11,
-26,
-2,
16,
22,
0,
-25,
-97,
0,
-30,
-15,
23,
-3,
-9,
15,
25,
-7,
-18,
48,
17,
31,
6,
-31,
-20,
-6,
-11,
26,
9,
-6,
13,
65,
10,
-11,
9,
32,
0,
-5,
-26,
-4,
-34,
-41,
-2,
-9,
2,
20,
-40,
-18,
-1,
7,
-4,
33,
29,
-6,
-8,
-66,
27,
19,
-16,
9,
27,
14,
7,
19,
-3,
12,
0,
25,
30,
31,
-25,
-58,
-67,
-42,
-63,
-3,
-34,
-2,
-9,
33,
69,
-16,
-1,
0,
-8,
-13,
-17,
11,
0,
-16,
34,
-13,
-4,
-9,
0,
-40,
-36,
-32,
24,
2,
-14,
11,
5,
-25,
-24,
34,
-25,
-9,
41,
-5,
15,
56,
-29,
-18,
28,
3,
8,
-16,
20,
-9,
14,
-30,
-6,
-23,
26,
-21,
31,
39,
8,
-41,
-51,
-6,
-37,
1,
-13,
-38,
-71,
35,
31,
-6,
36,
9,
78,
-12,
28,
-8,
27,
9,
-2,
-39,
-67,
-36,
23,
-49,
39,
4,
22,
1,
-7,
-26,
2,
-52,
-14,
18,
-26,
10,
38,
-29,
6,
14,
-24,
-38,
-6,
-35,
-39,
35,
22,
-29,
37,
-4,
-17,
48,
-16,
1,
-11,
-49,
36,
-17,
-9,
11,
-14,
27,
-15,
32,
-45,
-32,
-17,
14,
-10,
-2,
-7,
-28,
-9,
2,
-1,
20,
69,
-8,
-15,
33,
21,
-44,
54,
-36,
23,
2,
-1,
-32,
8,
-7,
-27,
7,
-46,
5,
13,
-12,
25,
0,
2,
23,
0,
53,
5,
-54,
-7,
67,
-18,
-5,
-38,
-14,
11,
32,
4,
1,
9,
7,
8,
11,
-32,
-7,
10,
49,
7,
35,
-39,
-6,
-22,
-27,
47,
-7,
-52,
-22,
9,
20,
24,
-31,
26,
-45,
13,
24,
-8,
18,
0,
78,
-19,
37,
-29,
-1,
-49,
4,
22,
18,
24,
-1,
26,
3,
-6,
52,
-14,
26,
3,
-27,
10,
-1,
17,
16,
-37,
44,
18,
29,
32,
4,
30,
-37,
31,
-37,
-45,
28,
-28,
-14,
37,
34,
-27,
-23,
-24,
35,
-28,
-7,
32,
-10,
26,
8,
-15,
15,
-23,
-68,
-4,
-7,
27,
32,
41,
25,
-23,
6,
-7,
-21,
-39,
0,
-4,
38,
-58,
-30,
-16,
19,
-14,
18,
-10,
35,
23,
-6,
-18,
-83,
-37,
-54,
22,
5,
26,
37,
38,
6,
9,
13,
2,
-57,
4,
18,
30,
-5,
35,
21,
45,
-22,
21,
-34,
-6,
24,
-6,
-2,
19,
17,
-12,
-18,
-10,
-35,
-62,
-30,
6,
11,
-11,
55,
-73,
9,
-36,
9,
18,
-22,
60,
-5,
28,
-40,
-24,
-35,
19,
3,
45,
-13,
-4,
46,
-26,
-64,
-25,
-55,
14,
-7,
10,
-15,
2,
-4,
57,
14,
82,
18,
-48,
19,
-43,
21,
-9,
17,
13,
22,
-12,
-20,
5,
4,
23,
-8,
23,
43,
-33,
19,
28,
1,
51,
-21,
11,
-7,
43,
-24,
-12,
36,
-12,
-28,
-4,
-40,
-8,
26,
0,
29,
-16,
-56,
17,
23,
48,
25,
0,
-4,
35,
-3,
-15,
1,
-21,
-26,
-55,
12,
17,
64,
37,
-28,
31,
34,
22,
-8,
-14,
-1,
25,
12,
3,
18,
50,
26,
13,
29,
-17,
31,
-12,
6,
46,
-44,
-1,
24,
-18,
60,
16,
-4,
-13,
-20,
14,
-14,
-33,
3,
-7,
-15,
-13,
-2,
9,
38,
-18,
-4,
-6,
5,
-42,
-2,
35,
-12,
-5,
-5,
-31,
11,
58,
49,
-23,
22,
16,
-52,
9,
19,
-11,
-49,
-4,
-27,
-5,
20,
-19,
-31,
15,
23,
-39,
-25,
28,
-22,
55,
-17,
7,
-64,
0,
-13,
-1,
47,
57,
-19,
-6,
-25,
-50,
-2,
12,
39,
-19,
-32,
39,
-56,
8,
-17,
31,
-6,
-14,
23,
-19,
-1,
-8,
-2,
25,
-30,
-28,
19,
14,
-16,
-15,
-51,
-28,
-10,
20,
3,
6,
-55,
-6,
35,
15,
-14,
23,
16,
30,
56,
-2,
-2,
-7,
13,
10,
-15,
20,
13,
10,
-32,
-12,
20,
-39,
-65,
-33,
-16,
-20,
8,
7,
13,
50,
0,
1,
-17,
-40,
-27,
-56,
38,
0,
2,
-76,
-45,
-35,
-4,
-102,
31,
-23,
-44,
-20,
73,
49,
38,
33,
-11,
37,
3,
-19,
8,
-20,
-39,
69,
25,
37,
53,
-14,
-35,
-9,
-1,
-34,
-27,
35,
0,
92,
-67,
44,
-15,
44,
19,
-9,
-6,
7,
26,
-4,
3,
31,
20,
29,
39,
-5,
4,
28,
10,
24,
0,
12,
41,
0,
20,
-28,
26,
33,
-36,
-17,
-43,
-4,
9,
-9,
15,
-19,
32,
1,
10,
16,
31,
-17,
-29,
-29,
-32,
-5,
7,
25,
-6,
22,
40,
17,
35,
-54,
-11,
-48,
41,
-13,
0,
-8,
-3,
8,
-54,
-23,
6,
-20,
-4,
9,
-24,
-9,
-40,
56,
40,
17,
6,
-19,
-60,
-5,
15,
-7,
-47,
0,
34,
-55,
-51,
-32,
35,
-23,
-58,
-11,
19,
7,
38,
-48,
-25,
73,
-8,
-9,
6,
39,
-59,
28,
-3,
-46,
-53,
30,
3,
5,
6,
34,
-1,
-15,
-32,
6,
5,
-31,
1,
-1,
-9,
-48,
-14,
-8,
37,
-53,
4,
42,
3,
-41,
80,
-25,
48,
-6,
31,
-15,
-44,
-47,
11,
-5,
38,
12,
-25,
-25,
-31,
15,
-27,
15,
46,
17,
-4,
-16,
-10,
24,
14,
4,
-1,
67,
-59,
-4,
-9,
-34,
25,
-3,
-13,
14,
-41,
-9,
-33,
-12,
-9,
8,
-26,
-13,
-7,
7,
-23,
-42,
-44,
21,
36,
-11,
-6,
34,
-11,
-11,
-72,
-3,
-6,
27,
-33,
19,
13,
-7,
-18,
-16,
23,
20,
-2,
-33,
-96,
-20,
24,
-5,
-28,
46,
18,
2,
-44,
27,
-18,
28,
27,
-32,
5,
18,
-7,
-66,
23,
46,
-15,
-19,
-13,
21,
27,
-29,
-14,
0,
-36,
34,
23,
3,
-1,
-33,
-56,
-44,
-21,
-76,
3,
-37,
-13,
-3,
16,
25,
9,
-25,
-13,
-41,
9,
31,
-5,
-39,
38,
-2,
-26,
-56,
-17,
57,
-6,
8,
-51,
7,
11,
42,
-2,
-34,
-22,
-3,
42,
54,
35,
20,
15,
-17,
-38,
34,
34,
3,
-17,
-17,
-32,
8,
-7,
48,
50,
14,
-10,
2,
9,
24,
53,
5,
61,
-57,
-39,
31,
-30,
49,
-7,
16,
43,
60,
-12,
26,
-37,
7,
51,
42,
13,
-9,
-51,
-55,
-44,
-25,
26,
47,
-12,
8,
24,
-30,
0,
-28,
5,
87,
-6,
-12,
39,
-14,
-12,
8,
-5,
-7,
24,
-52,
12,
76,
-9,
-41,
33,
-6,
-23,
-16,
-13,
42,
-24,
-18,
65
] |
Grant, C. J.
(after stating the facts). A settlement was made between the bank and the defendant. What was settled, and what was the consideration for the settlement? The defendant had taken' a note for $2,000, placed it among the assets of the bank, and had credited himself upon the books with $2,000 as loaned upon 'this note. In fact no loan was made, no cash paid out, no note had ever existed of which the one taken could be a duplicate. There was nothing upon the books of the bank to indicate the existence of any such note, or that Bement & Sons had ever been indebted to the bank upon such a note. Defendant had no reason to believe that the Bements had ever executed such a note, or were indebted to the bank in such a sum. If there was a shortage at that time in the cash of the bank, defendant did not then inform any of the bank officials, and give them an opportunity to investigate. Defendant, under his contract and bond, had control of the bank assets and loans. He recognized his liability for the transaction, and took this note, himself taking it, and entering it, and being alone responsible for it. It requires no argument to show tüat he was primarily liable to the bank. The bank had sued Bement & Sons. The suit was pending. They had executed the note. They appear to have had a valid defense. Defendant recognized it. On the strength of defendant’s agreement, that suit was discontinued. Defendant recog nized his liability, agreed to pay, time to pay was extended, and any further investigation by the officials of the bank rendered unnecessarjo Defendant was not settling a larceny committed by his son, but a transaction of his own. The fact, if so it be, that defendant informed the president and directors that his son had taken -the money, did not change the situation. The statement did not bind them or the bank. They did not know whether the statement was true or false, and made no investigation. It was immaterial to the bank who had taken the money. There is no evidence to show that the bank officers understood and agreed that they would settle a theft by young Coleman. The fact that Mr. Barnes, the president, believed the statement of the defendant, did not bind the bank, or change the nature of the transaction. If defendant stated to the directors that his son had confessed that he had taken the money, and “substituted the note” for it, the statement, as a whole, was not true, for his son had nothing whatever to do with getting the note or entering it on the books, as appeared from his (defendant’s) cross-examination. But this is not all. It was not true, as stated by his counsel, that Bement & Sons had failed to take up a $2,000 note, and his son, instead of retiring it, had permitted it to stay upon its cashbook as a claim due the bank. The bank, through its officers, insisted that defendant was liable. He did not deny his liability. On the contrary, he recognized it, and settled. It would be a gross injustice to permit him, years afterwardsj to escape liability under a plea of theft by his son. If defendant had disputed his liability, and this dispute was compromised and settled, the compromise would have been a good consideration. 3 Am. & Eng. Enc. Law, 837. Is the settlement any less valid where he admitted his liability?
If, however, we assume that this settlement was made to secure the debt, default, or miscarriage of young Coleman, the defense cannot be maintained. The agreement is in writing, and answers the statute of frauds. The agreement itself implies an extension of time, because it was to be paid out of future dividends. It was clearly-understood that no proceedings to recover it were to be taken against young Coleman. None were taken. The agreement lulled the directors into nonaction against him. The settlement was voluntary. The amount was agreed upon, as well as the terms of payment. Defendant’s written obligation was accepted by the bank, acted upon, rendered any investigation by the bank as to the liability for the money unnecessary, and, in short, was treated as a complete settlement, and acted upon, for nearly four years. Defendant was continued in the service of the bank. In Bodine v. Morgan, 37 N. J. Eq. 426, the defendant had given a mortgage to secure the firm for which he and his son were employed for peculations made by the two. Five years afterwards Morgan attempted to defend against the mortgage because it was obtained by duress. It was there said:
“The mortgage resulted from a voluntary agreement on the part of Morgan with the firm to secure them $5,000 for the losses which he admitted they had sustained by the fraud of himself and his son while in their employment. ITe took no steps to set it aside, and never even protested against it, though it had stood against his property for about four years, and consequently had been due for a year when this suit was brought.”
The extension of time of payment and forbearance to bring suit against the son were sufficient consideration for the promise.
If proof that this obligation was given by defendant to secure a defalcation of his son would be a valid defense, defendant, upon whom is the burden of proof, has failed to establish it. Can a bank cashier avoid his written obligation by simply stating that A. or B. or C. told him that he had stolen $2,000 of the bank funds? Such a defense does not depend upon who stole, — whether he be a stranger or employé. If the position of the learned counsel for the defendant be true, then a bank cashier can defend against his written obligation securing a deficit by coming into court years afterwards and saying: “I told the directors or president at the time I secured this deficiency that one A., a stranger, told me that he went into the bank one day and stole the funds.” Such a statement is hearsay, and wholly incompetent when the question comes up between employer and employé, and it is essential for the employé to establish a theft in order to relieve him from liability. The testimony was received under objection and exception. It is immaterial that Mr. Barnes, the president, believed what defendant told him. This neither bound the bank nor proved the theft. Furthermore, the money, if taken by the son, might have been taken under such circumstances as not to relieve defendant from liability, and upon this point there is an entire absence of proof. In order to avoid his voluntary agreement, entered into and accepted in good faith, and acted upon for a long period, the defendant now seeks to defend by proclaiming his son a felon, and to do so without giving his son a chance to be heard. Courts will not permit such a defense to be established by bare hearsay.
Judgment reversed, and new trial ordered.
Moore, J., concurred with Grant, C. J.
Long, J. I think the case should be reversed upon the last point suggested by my Brother Grant. I cannot agree with him, however, upon the other questions.
Hooker, J., concurred with Long, J. | [
28,
-6,
18,
4,
-14,
-21,
50,
-6,
13,
5,
22,
3,
46,
-19,
-33,
-6,
1,
-36,
5,
-58,
-81,
-41,
22,
0,
17,
24,
1,
34,
11,
68,
24,
31,
-44,
40,
-36,
74,
37,
-4,
44,
-2,
2,
4,
43,
0,
-25,
7,
-70,
-45,
-5,
-57,
64,
-22,
53,
-48,
-1,
31,
-3,
12,
-14,
-4,
-17,
-58,
41,
-20,
-24,
-50,
-17,
-10,
17,
46,
2,
38,
17,
-8,
19,
-47,
-23,
26,
-26,
-6,
12,
17,
29,
-16,
-27,
-40,
6,
-14,
7,
11,
31,
49,
14,
-30,
17,
-5,
3,
45,
19,
31,
-40,
-81,
-33,
-25,
15,
19,
-2,
-40,
-29,
14,
4,
54,
12,
-42,
-29,
-22,
-40,
-13,
-14,
-20,
-4,
-10,
13,
-8,
-58,
25,
-66,
-54,
-42,
10,
-17,
-8,
-106,
51,
15,
-23,
-35,
-5,
-40,
-17,
-2,
-39,
-9,
-51,
-41,
2,
-14,
11,
-35,
27,
-43,
19,
-13,
19,
-25,
1,
-10,
-57,
44,
-40,
21,
33,
17,
-19,
-31,
-27,
-16,
32,
54,
-22,
-18,
24,
-18,
-20,
26,
29,
-12,
-26,
-5,
-27,
4,
14,
11,
31,
41,
-13,
-22,
37,
-21,
26,
-5,
-4,
-63,
78,
5,
-2,
-21,
-24,
45,
-29,
-15,
-22,
-8,
57,
0,
-3,
41,
-23,
-16,
42,
10,
27,
15,
-23,
-8,
0,
55,
-49,
3,
1,
14,
18,
-45,
32,
-49,
-67,
25,
11,
-24,
-1,
-20,
49,
-32,
-14,
34,
27,
1,
-19,
-7,
45,
-24,
-29,
-21,
-54,
22,
4,
-30,
-45,
-30,
8,
-32,
48,
-37,
90,
-42,
-2,
39,
13,
-49,
-31,
-8,
42,
-16,
23,
52,
-51,
-11,
26,
-25,
17,
31,
-108,
-27,
-19,
-7,
-18,
-16,
12,
-31,
-36,
0,
18,
-6,
19,
5,
-25,
16,
43,
12,
-20,
30,
-11,
69,
-48,
84,
39,
22,
65,
-14,
-19,
3,
-33,
-10,
-27,
-2,
20,
20,
0,
-95,
-38,
32,
50,
-30,
37,
35,
-11,
-19,
-14,
49,
-7,
44,
12,
-4,
-65,
-25,
33,
35,
-17,
-9,
10,
1,
-3,
-6,
-28,
-17,
-16,
53,
10,
33,
0,
-12,
7,
-12,
-35,
20,
-13,
-41,
-51,
-67,
15,
-25,
1,
-17,
11,
57,
22,
14,
15,
4,
8,
76,
16,
16,
-72,
55,
-17,
12,
26,
-9,
31,
15,
-8,
-54,
-24,
-55,
21,
42,
-39,
-62,
32,
-3,
-8,
-9,
-19,
10,
18,
-37,
-2,
-1,
23,
-32,
24,
15,
8,
6,
-25,
9,
3,
-30,
-30,
0,
26,
-11,
-23,
-57,
23,
-2,
-25,
22,
-17,
-11,
-38,
10,
14,
-58,
-19,
31,
-11,
-5,
41,
-12,
22,
-29,
-52,
-6,
-23,
35,
18,
-15,
-67,
-5,
42,
37,
-43,
27,
6,
-40,
20,
-22,
-24,
29,
8,
-2,
76,
12,
53,
-18,
8,
43,
41,
17,
-19,
-10,
55,
-3,
86,
30,
-13,
32,
-11,
30,
14,
-17,
40,
47,
-26,
-2,
-46,
1,
54,
-30,
0,
8,
-20,
13,
33,
11,
-13,
9,
33,
-16,
24,
17,
44,
-69,
6,
-49,
-66,
-1,
45,
-7,
-18,
-1,
-30,
1,
2,
0,
0,
-15,
-25,
7,
38,
5,
-6,
33,
35,
-23,
-55,
-22,
25,
-25,
10,
29,
-6,
-5,
0,
-5,
30,
-37,
76,
50,
-32,
-68,
-9,
-43,
14,
-26,
19,
-2,
-2,
27,
18,
19,
-43,
-17,
27,
10,
11,
11,
-24,
-32,
-3,
16,
30,
-39,
-7,
1,
-22,
-3,
-3,
-23,
-20,
94,
27,
-50,
36,
51,
-30,
4,
-49,
-27,
43,
-1,
27,
41,
6,
44,
3,
14,
-36,
-25,
-33,
-19,
45,
-6,
11,
-33,
7,
34,
-17,
-2,
-8,
-8,
0,
-26,
68,
37,
-8,
-12,
1,
42,
28,
-8,
-21,
11,
-19,
-4,
-35,
1,
45,
20,
5,
-36,
-4,
58,
-35,
5,
22,
-47,
-44,
37,
-1,
22,
30,
3,
-8,
-25,
-35,
5,
25,
30,
-19,
5,
-79,
5,
25,
13,
-11,
2,
28,
8,
-25,
27,
17,
-50,
56,
-18,
20,
6,
-14,
-5,
43,
-26,
10,
9,
10,
-33,
57,
39,
-28,
38,
-14,
56,
-19,
32,
2,
-35,
3,
-8,
-33,
35,
-38,
-25,
33,
-35,
27,
9,
19,
5,
-17,
14,
-29,
1,
23,
22,
16,
-2,
-5,
5,
-7,
25,
-16,
34,
-9,
-32,
-15,
6,
-29,
-3,
45,
31,
-9,
-58,
19,
34,
14,
39,
18,
-17,
-21,
38,
-48,
3,
-23,
-25,
-38,
-7,
18,
-13,
17,
30,
4,
-30,
0,
-18,
-18,
-14,
39,
-42,
-1,
-36,
-12,
104,
-23,
-50,
30,
71,
-15,
-23,
-2,
26,
-37,
-22,
42,
0,
19,
22,
-23,
32,
-30,
-14,
36,
1,
-4,
-14,
-31,
12,
13,
20,
46,
48,
-17,
-7,
3,
-44,
45,
-10,
-20,
-11,
-26,
-21,
69,
27,
-33,
-11,
-35,
3,
-34,
37,
-26,
-18,
-72,
-5,
35,
-15,
-6,
13,
-46,
49,
-5,
14,
-5,
29,
69,
27,
-10,
20,
-42,
7,
34,
45,
25,
-54,
7,
-10,
23,
24,
-5,
-27,
-12,
-31,
7,
19,
63,
4,
30,
31,
43,
29,
-11,
-35,
-42,
-23,
-15,
-5,
-10,
0,
-4,
10,
-64,
-40,
10,
30,
-46,
-15,
42,
-33,
-34,
-45,
-9,
-3,
-12,
-15,
13,
-5,
53,
1,
-28,
4,
-3,
42,
-59,
-16,
0,
24,
-25,
-41,
22,
-13,
-32,
-3,
5,
-31,
-15,
0,
-8,
34,
-19,
24,
-43,
12,
24,
-32,
-26,
56,
-8,
-26,
21,
-20,
-12,
23,
21,
18,
47,
0,
4,
29,
-6,
-6,
-8,
-24,
-7,
11,
-1,
17,
19,
2,
-49,
-11,
38,
-33,
3,
-29,
-22,
22,
-19,
-24,
-57,
21,
46,
35,
-1,
-57,
-12,
-22,
0,
5,
9,
33,
44,
1,
-24,
48,
-26,
-42,
33,
15,
-4,
36,
-3,
22,
27,
10,
-33,
30,
-17,
-16,
32,
-38,
11,
-7,
31,
-9,
0,
-11,
-8,
-6,
-18,
-13,
1,
29,
-35,
-8,
21,
26,
9,
11,
-66,
13,
-2,
-28,
50,
-32,
11,
-13,
-69,
-42,
-17,
26,
-19,
-7,
3,
-29,
13,
7,
62,
52,
-17,
-20,
-44,
-23,
-7,
-24,
-7,
12,
-19,
24,
-51,
-6,
-20,
-15,
11,
-53,
47,
-15,
40,
24,
22,
-15,
-7,
8,
-19,
-34,
40,
9,
-52,
23,
-17,
-16,
-53,
-14,
-11,
7,
27,
-16,
-53,
14,
29,
27,
-23,
-12,
33,
21,
34,
3,
5,
-12,
0,
-1,
50,
24,
9,
-10,
43
] |
Moore, J.
Plaintiff recovered a judgment against defendant for the conversion of 303 cedar trees. Defendant appeals.
The suit 'was commenced in justice’s court. The declaration was oral “for the conversion of 350 cedar trees severed from the freehold from the southeast quarter,” etc. It was the claim of the defendant that he had nothing to do with the cutting of the trees, but that they were cut by mistake by Mr. Colton, who was in the employ of Mr. Ayer. The defendant claimed he was also in the employ of Mr. Ayer.
The record shows the land from which the trees were cut was wild land. Plaintiff obtained a deed of these lands in 1892. He went upon the lands for the first time in June, 1893. At that time the timber had been cut. Some of it was in a stream running through the land, and some of it had floated down stream. It was marked with the snowshoe mark. To show his right to the timber, plaintiff introduced his deed in evidence. Objection was made because it was not proof of title, and it was received subject to the objection. No proof was offered showing title in plaintiff’s grantor when the deed was made. In the charge of the judge to the jury he told them:
“While plaintiff has not traced his title from the government, yet by the introduction of this deed he has identified and proved the title of himself to the timber, and that he owned it, which he claims was taken, and undertakes to show was taken, from this land, and swore himself, and by this deed shown, he was the owner of such timber.”
There are a good many assignments of error, but the one in relation to the effect of the deed we think is conclusive. It is doubtless true, if Mr. Solomon had been in possession of the land, the introduction of the deed, without tracing title further back, would have been sufficient to authorize him to maintain this action against a stranger to the title; but, as we have already shown, he was neither in possession of the timber nor of the land at the time of the alleged conversion. His right to maintain the action was shown only by the deed, which may or may not have been given by one having title. The case is controlled by Crawford v. Corey, 99 Mich. 415.
Wé do not deem it necessary to discuss the other assignments of error, because they are either not well taken or are not likely to occur again.
Judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
-4,
29,
-12,
13,
16,
23,
14,
29,
56,
33,
31,
-26,
23,
68,
27,
-32,
-27,
4,
1,
25,
50,
-36,
-28,
-17,
-12,
-42,
-1,
-24,
-39,
33,
3,
7,
-34,
-14,
-11,
-1,
-35,
29,
3,
-6,
-34,
0,
18,
-29,
-19,
10,
5,
-16,
-6,
-9,
55,
-50,
4,
-21,
-26,
9,
8,
41,
-33,
0,
-14,
-3,
4,
4,
39,
-11,
-30,
3,
20,
-30,
-42,
13,
4,
-29,
2,
-26,
-14,
-21,
-29,
-10,
-44,
28,
19,
-22,
-18,
8,
1,
-10,
36,
17,
-30,
-15,
-2,
37,
-7,
41,
-30,
18,
11,
48,
60,
2,
-17,
3,
0,
-10,
-59,
-64,
14,
-22,
39,
31,
16,
14,
19,
-53,
28,
8,
54,
-14,
-2,
-34,
26,
-11,
-1,
21,
-11,
-9,
-38,
20,
9,
-14,
-50,
-19,
-27,
-23,
-9,
10,
-33,
-36,
24,
27,
-15,
-16,
29,
2,
23,
48,
-36,
-51,
-17,
48,
39,
6,
-16,
0,
17,
-11,
32,
-76,
20,
14,
-28,
-16,
-8,
32,
-3,
-27,
-22,
-4,
39,
-27,
-35,
-16,
10,
-6,
3,
-8,
-15,
8,
-9,
-8,
50,
-6,
-28,
-37,
-31,
11,
-18,
51,
38,
10,
27,
-28,
-18,
46,
-43,
-26,
3,
-3,
-9,
-77,
-21,
-9,
-2,
-3,
45,
-1,
37,
57,
-14,
15,
-20,
-49,
-3,
35,
24,
-19,
10,
-34,
19,
14,
14,
-13,
3,
-31,
33,
37,
49,
23,
-61,
-7,
1,
11,
-13,
-8,
-6,
19,
-18,
-37,
26,
14,
-37,
-15,
-10,
8,
17,
6,
32,
17,
-55,
-31,
-28,
9,
-30,
14,
21,
-35,
-28,
-26,
-27,
47,
4,
-25,
-31,
-14,
-27,
6,
-9,
10,
-47,
6,
33,
26,
-42,
8,
-23,
-8,
-30,
4,
25,
10,
23,
17,
-30,
-25,
43,
41,
5,
20,
22,
-9,
-44,
-42,
12,
45,
16,
-14,
6,
-17,
-2,
-38,
-26,
-15,
9,
12,
13,
-32,
-5,
45,
3,
1,
-30,
15,
28,
11,
9,
-29,
-13,
-25,
-40,
9,
-19,
-10,
25,
45,
15,
-2,
-52,
49,
-44,
-3,
-10,
38,
18,
-8,
14,
-30,
-33,
4,
7,
19,
3,
13,
54,
14,
-31,
-19,
-1,
-19,
10,
-5,
-52,
-25,
-26,
-27,
-4,
-45,
9,
45,
44,
8,
45,
6,
5,
-1,
-51,
10,
22,
-3,
1,
33,
16,
3,
26,
-1,
-17,
-62,
-60,
-15,
6,
25,
26,
16,
42,
-23,
-25,
-51,
-15,
-30,
-18,
-15,
-13,
20,
-25,
-20,
16,
-26,
4,
-28,
-10,
46,
45,
18,
-37,
14,
-18,
21,
22,
-27,
29,
20,
41,
-22,
10,
-5,
9,
-16,
62,
26,
40,
7,
-15,
-59,
40,
-15,
18,
-1,
2,
33,
-31,
7,
22,
-1,
12,
9,
-42,
-13,
-43,
4,
-15,
32,
-38,
-30,
-53,
-10,
9,
22,
36,
-4,
-13,
-8,
-59,
-12,
9,
1,
39,
-53,
44,
-25,
20,
17,
19,
-6,
-5,
0,
1,
-35,
5,
6,
7,
36,
5,
-21,
-36,
8,
39,
-11,
-35,
-3,
9,
26,
31,
-8,
-52,
-9,
-12,
24,
-31,
6,
12,
34,
66,
-14,
2,
-7,
-49,
-37,
8,
41,
4,
-7,
6,
-43,
16,
28,
5,
18,
19,
68,
-18,
-37,
-8,
-12,
-16,
3,
18,
-29,
37,
8,
4,
-39,
14,
17,
11,
16,
27,
2,
12,
7,
7,
-52,
-74,
47,
-1,
1,
20,
0,
-17,
-30,
-9,
8,
3,
35,
-35,
22,
18,
-61,
24,
-11,
-10,
-10,
-5,
-47,
-22,
21,
-33,
-69,
-12,
-18,
10,
-43,
9,
-41,
60,
8,
13,
-4,
-19,
22,
-3,
-54,
12,
-41,
-13,
7,
-24,
-14,
17,
8,
-40,
-52,
-29,
-25,
18,
19,
38,
20,
-19,
5,
-17,
13,
-39,
-43,
-47,
19,
-22,
23,
29,
12,
0,
-3,
-39,
-19,
4,
16,
9,
19,
9,
7,
0,
7,
22,
54,
34,
34,
12,
-30,
31,
26,
20,
-31,
-47,
41,
21,
-5,
-29,
-12,
-14,
5,
-8,
10,
-29,
26,
-4,
-17,
34,
30,
-8,
18,
34,
-38,
-52,
0,
12,
52,
2,
21,
-3,
-31,
-28,
10,
-14,
28,
-6,
5,
26,
26,
16,
29,
59,
-40,
-23,
5,
-4,
-1,
37,
15,
-20,
0,
32,
-47,
14,
-20,
-7,
-24,
-30,
67,
47,
23,
-2,
-9,
30,
7,
10,
0,
-14,
22,
8,
12,
-13,
35,
51,
39,
-18,
-2,
42,
-16,
16,
-11,
-21,
37,
45,
56,
-9,
-3,
-33,
-4,
2,
-46,
36,
18,
-7,
6,
-33,
49,
41,
-55,
2,
12,
19,
-11,
15,
-56,
26,
0,
-2,
36,
-12,
-24,
15,
37,
-9,
-1,
-28,
-39,
39,
23,
13,
0,
25,
-22,
-19,
0,
0,
0,
39,
-28,
-17,
4,
0,
-30,
52,
30,
-11,
-26,
-29,
16,
-27,
-27,
34,
-33,
-7,
5,
-10,
3,
-1,
-87,
20,
11,
-21,
-23,
-4,
-20,
37,
32,
27,
16,
64,
23,
-26,
-28,
-58,
3,
-51,
-18,
19,
-23,
26,
-30,
-31,
-6,
-20,
14,
-17,
-12,
15,
-25,
-6,
-25,
-28,
20,
-24,
1,
6,
26,
-18,
42,
-9,
0,
10,
13,
11,
-27,
-27,
-4,
-2,
12,
-8,
12,
-19,
16,
-12,
-11,
15,
18,
42,
9,
-49,
6,
8,
-70,
-16,
58,
30,
-36,
8,
-22,
-35,
-25,
-41,
-27,
4,
-31,
39,
14,
-27,
20,
-46,
-9,
-28,
7,
30,
43,
-60,
-53,
22,
-8,
41,
-7,
39,
-29,
-7,
4,
50,
30,
24,
33,
23,
19,
49,
49,
-46,
5,
-3,
26,
-3,
-11,
33,
31,
13,
19,
-11,
55,
-35,
4,
16,
0,
2,
19,
8,
-37,
63,
11,
-12,
6,
-11,
-8,
-26,
-12,
24,
-10,
-5,
46,
12,
-27,
3,
-17,
3,
2,
-15,
-56,
-68,
-32,
-55,
0,
3,
-24,
0,
6,
29,
2,
-56,
18,
-19,
0,
12,
73,
-4,
48,
-34,
28,
4,
-5,
31,
18,
39,
-62,
2,
-29,
-2,
1,
17,
13,
-74,
-23,
-9,
6,
-69,
22,
-2,
50,
20,
44,
-56,
7,
-57,
-13,
-42,
-36,
7,
42,
-21,
10,
5,
51,
23,
25,
-17,
0,
39,
-60,
38,
-17,
20,
-3,
7,
8,
-16,
2,
12,
22,
-65,
48,
47,
-31,
51,
-45,
-50,
-29,
-18,
24,
58,
13,
4,
-34,
-58,
-9,
-49,
-28,
-20,
1,
-10,
-2,
38,
-18,
36,
73,
-1,
-45,
-65,
10,
42,
20,
-35,
28,
30,
24,
16,
10,
13,
6,
16,
56
] |
Hooker, J.
The appellant’s intestate, Hon. Chauncey Joslyn, was a circuit judge from November 7, 1882, or before, to the time of his death, in 1889. At the November election, in 1882, an amendment to the Constitution, raising the salaries of circuit judges $1,000 per annum, was adopted. Article 20, § 2, of the Constitution, provides that ‘ ‘ all the amendments shall take effect at the commencement of the year after their adoption. ” It was the uniform practice to treat the 1st of January succeeding the adoption of amendments as the time of their taking effect, and this course was followed by the State officers in the payment of the increased salaries to judges.
In 1876 an amendment was adopted permitting the submission of amendments to the electors at the local elections held upon the occasion of the annual township meeting, and a question subsequently arose as to when amendments became operative. This was settled in the case of Seneca Mining Co. v. Secretary of State, 82 Mich. 573 (9 L. R. A. 770), where it was held that amendments take effect from the time of their ratification, where adopted after the adoption of the amendment of 1876. It followed that the application of this rule to the amendment in relation to salaries of circuit judges entitled them to increased salaries from November 7, 1882; but no such payment was made until 1891, when an act was passed authorizing the payment of $147.20 to each of the persons who were circuit judges from November 7, 1882, to January 1, 1883, or their legal representatives. Act No. 105, Pub. Acts 1891. Judge Joslyn being dead, the appellant was appointed administrator, and received the sum mentioned from the State. An order was made by the probate court allowing the sum of $124 to the widow, from which an appeal was taken to the circuit court, where the order was affirmed.
The question before us is whether this fund was subject to such disposition, it being contended that it belongs to the heirs of the estate, to whom it was granted by the legislation mentioned, and that it is not properly a portion of the assets of Judge Joslyn’s estate. We think this position untenable. This money was earned by Judge Joslyn, and under the amendment, as construed in the case cited, was a valid claim against the State, subject to collection and distribution by his administrator, like any other chose in action.
It follows that the orders of the circuit and probate courts should be affirmed, with costs. It will be so certified.
The other Justices concurred. | [
5,
17,
0,
-61,
11,
44,
23,
-32,
16,
24,
8,
-37,
19,
9,
40,
-28,
-50,
-30,
-4,
11,
-16,
-62,
20,
18,
11,
6,
-9,
2,
-37,
-16,
-9,
-44,
-12,
8,
-8,
-39,
-44,
-4,
8,
-21,
47,
-21,
-30,
6,
-15,
42,
36,
-29,
-48,
-16,
-21,
-28,
-32,
34,
31,
68,
5,
-40,
-63,
43,
-28,
-16,
-4,
12,
27,
32,
21,
-12,
17,
-23,
-18,
11,
-23,
-61,
14,
1,
17,
-14,
-38,
38,
-41,
-11,
-37,
-22,
-7,
28,
-19,
10,
56,
-1,
-21,
0,
-13,
16,
-5,
50,
3,
-7,
40,
-8,
29,
-54,
-17,
38,
53,
-24,
-24,
15,
-11,
-22,
21,
8,
55,
7,
-18,
0,
-41,
-27,
-53,
-30,
36,
-4,
20,
16,
-17,
24,
-32,
38,
14,
-14,
-39,
4,
27,
-55,
15,
20,
-16,
-21,
19,
-66,
35,
5,
33,
-14,
9,
-56,
-12,
18,
-37,
-21,
2,
53,
61,
37,
17,
-12,
15,
0,
36,
8,
-6,
10,
-11,
-49,
-35,
6,
-1,
-38,
-15,
-7,
7,
-3,
-28,
-29,
58,
32,
16,
7,
-30,
-21,
-59,
66,
-2,
-16,
25,
-21,
57,
-22,
50,
18,
2,
-20,
44,
-71,
23,
-31,
9,
-26,
12,
27,
12,
0,
39,
5,
-22,
-51,
5,
-36,
-50,
10,
-48,
-10,
23,
26,
-34,
60,
-10,
0,
1,
-8,
78,
26,
14,
21,
-53,
2,
59,
34,
14,
17,
-20,
12,
31,
-21,
14,
21,
-55,
6,
-30,
-52,
-41,
13,
-18,
0,
-18,
-11,
-50,
6,
-46,
36,
0,
23,
-13,
37,
-5,
53,
56,
-15,
-30,
-47,
-6,
31,
13,
-6,
9,
-2,
14,
6,
2,
0,
-28,
-10,
59,
18,
0,
-23,
-29,
-32,
-30,
-48,
-3,
43,
-2,
-6,
-55,
-8,
-64,
-26,
27,
74,
3,
2,
9,
69,
39,
25,
-1,
24,
42,
-66,
-15,
3,
71,
29,
38,
0,
-29,
-49,
17,
-45,
15,
-34,
-12,
31,
36,
-6,
-52,
12,
-50,
-35,
-34,
14,
-17,
1,
-22,
-1,
45,
-19,
8,
-3,
-46,
-17,
4,
19,
7,
1,
18,
67,
-8,
-34,
42,
-24,
-6,
-38,
2,
-21,
0,
-26,
1,
-11,
23,
-3,
-10,
10,
-16,
-2,
27,
-40,
61,
8,
21,
-38,
6,
-9,
-25,
9,
-37,
11,
85,
-36,
24,
15,
7,
31,
10,
45,
48,
4,
22,
28,
-18,
4,
-11,
-29,
9,
-7,
-5,
-14,
-30,
-42,
-15,
53,
-11,
36,
-30,
37,
7,
-30,
5,
4,
-24,
12,
-17,
10,
-30,
-30,
-53,
8,
-48,
30,
47,
20,
45,
-41,
28,
-10,
39,
3,
-2,
17,
6,
16,
-11,
-40,
-12,
-35,
4,
13,
-15,
-26,
8,
-5,
38,
-13,
-1,
13,
-20,
-1,
-71,
-2,
82,
7,
31,
17,
-24,
-3,
-23,
41,
28,
13,
31,
-48,
33,
23,
-11,
-35,
-6,
-3,
-31,
-6,
-3,
-25,
5,
28,
-16,
-16,
-53,
90,
7,
-15,
-30,
5,
-2,
-19,
-3,
22,
24,
-33,
-5,
8,
25,
-24,
-23,
17,
-12,
-44,
-4,
-14,
-5,
-4,
26,
-39,
-10,
-15,
49,
29,
-2,
-14,
-14,
2,
6,
24,
63,
-52,
-20,
-32,
7,
-36,
-44,
34,
-4,
-17,
36,
22,
15,
-23,
-24,
0,
5,
1,
18,
3,
-13,
40,
-20,
30,
-6,
9,
-11,
-10,
0,
49,
36,
11,
-11,
-16,
18,
-44,
-13,
-18,
-19,
-25,
4,
29,
4,
-44,
-22,
-53,
27,
-6,
-31,
-43,
-42,
-47,
-47,
-21,
13,
-1,
-4,
-45,
2,
-23,
-13,
-4,
45,
-2,
-2,
0,
16,
0,
-10,
-29,
3,
29,
59,
-19,
7,
-19,
-41,
10,
5,
13,
-6,
-37,
35,
-44,
-20,
-8,
7,
71,
-27,
-7,
-5,
18,
25,
-6,
12,
13,
53,
-49,
13,
60,
-61,
46,
8,
-18,
24,
14,
-7,
-1,
-26,
-41,
20,
8,
24,
37,
-28,
-19,
40,
-32,
1,
2,
8,
-55,
52,
-25,
11,
-3,
7,
-16,
76,
-51,
10,
10,
-45,
-20,
21,
-16,
11,
-6,
4,
-8,
-21,
-4,
-19,
13,
-9,
-3,
-6,
39,
29,
13,
44,
-43,
0,
15,
5,
-26,
-20,
-37,
23,
16,
7,
37,
-3,
51,
56,
-18,
-3,
-35,
49,
5,
79,
-22,
45,
-23,
3,
36,
2,
24,
-44,
25,
-17,
17,
6,
-5,
4,
24,
-22,
5,
39,
-22,
5,
8,
27,
-5,
28,
-11,
-53,
-19,
-3,
33,
0,
35,
-34,
-33,
37,
-34,
10,
-11,
-43,
5,
24,
18,
-4,
-24,
26,
-16,
5,
-5,
-4,
-4,
-20,
21,
12,
42,
21,
-16,
-27,
9,
0,
17,
-13,
-3,
21,
-5,
-31,
-46,
21,
9,
22,
8,
-12,
-10,
-4,
10,
22,
23,
-67,
54,
-18,
-18,
10,
11,
-11,
-15,
2,
42,
25,
-32,
4,
8,
-12,
29,
-12,
-19,
-11,
6,
-10,
-6,
2,
19,
-2,
-1,
45,
-17,
-7,
-17,
-38,
-4,
49,
-7,
7,
-23,
18,
-14,
21,
-16,
-24,
17,
-2,
-53,
-5,
-14,
-54,
5,
-41,
12,
47,
0,
-16,
3,
36,
28,
10,
25,
-34,
-47,
-48,
12,
0,
4,
16,
-28,
-48,
-100,
-8,
22,
-39,
-37,
35,
59,
26,
40,
13,
-42,
15,
4,
-33,
49,
13,
1,
-29,
-59,
31,
7,
-48,
-16,
-8,
-1,
-35,
-23,
-14,
21,
9,
55,
7,
35,
-52,
1,
-17,
29,
-50,
3,
-31,
-10,
28,
-56,
-24,
25,
46,
51,
38,
-12,
-13,
-16,
51,
11,
23,
0,
-59,
27,
-19,
-3,
-63,
9,
24,
-25,
33,
-34,
-36,
-1,
28,
27,
3,
-21,
37,
9,
60,
33,
9,
-26,
54,
14,
-12,
-5,
3,
-2,
-4,
-25,
-12,
43,
29,
-47,
-11,
-1,
45,
46,
48,
15,
-12,
-25,
-3,
-41,
-14,
26,
-26,
-3,
-4,
35,
-3,
10,
-6,
-15,
-18,
-26,
66,
-6,
-31,
21,
-50,
2,
-1,
3,
12,
20,
-21,
12,
-23,
-21,
-2,
-9,
28,
-33,
-46,
37,
-15,
7,
6,
-7,
2,
-55,
45,
62,
-10,
-48,
-34,
-10,
-1,
9,
20,
32,
32,
10,
5,
-68,
27,
-60,
-13,
2,
20,
-9,
0,
-16,
23,
11,
66,
4,
29,
-27,
15,
-58,
-31,
38,
41,
15,
-14,
-21,
-12,
40,
13,
-22,
3,
-24,
-6,
0,
-1,
-15,
-13,
-7,
4,
-13,
0,
47,
-11,
-39,
21,
40,
-31,
-31,
-2,
-27,
-24,
14,
-23,
58,
49,
-5,
-29,
-34,
63,
0,
-25,
11
] |
Per Curiam.
This case was argued with the case of Featherly v. Hoffman, ante, 42, in which case an opinion was handed down at the April term of court, and is controlled by it. For that reason, it is not necessary to write an opinion in this cáse.
Decree is affirmed. | [
-27,
-2,
24,
-27,
-24,
39,
66,
29,
-8,
40,
-25,
-8,
-3,
0,
-14,
-36,
30,
13,
2,
-2,
-77,
51,
33,
56,
-8,
-57,
-42,
48,
-15,
21,
-20,
0,
-7,
42,
-62,
-31,
-3,
19,
33,
-28,
65,
18,
-1,
-13,
-54,
-66,
0,
-21,
-6,
-30,
57,
10,
-28,
-51,
-56,
36,
17,
-23,
12,
42,
-43,
24,
-18,
16,
-48,
4,
-33,
-17,
-1,
-13,
-30,
-39,
-32,
-21,
16,
-19,
19,
45,
-44,
29,
14,
-7,
20,
10,
6,
9,
-3,
-31,
-4,
-39,
22,
-64,
-17,
-58,
-26,
87,
43,
-51,
41,
-43,
-23,
-43,
43,
31,
-7,
-43,
-32,
-8,
23,
-82,
-12,
19,
0,
20,
-20,
34,
16,
43,
-72,
-54,
-44,
58,
-25,
28,
-11,
30,
-18,
17,
-25,
-8,
6,
-13,
-31,
30,
57,
55,
10,
-30,
22,
-80,
15,
19,
67,
0,
16,
36,
-13,
-2,
-28,
17,
-6,
0,
-35,
41,
-45,
34,
-39,
-51,
10,
28,
-6,
20,
7,
-16,
41,
34,
-58,
-11,
-6,
42,
49,
15,
39,
-12,
-17,
-4,
-31,
-9,
0,
25,
-44,
29,
-12,
-31,
-17,
5,
-47,
36,
-31,
-43,
-38,
-28,
22,
21,
45,
-11,
46,
29,
31,
25,
-11,
54,
-22,
21,
-76,
21,
-21,
-3,
-15,
28,
34,
32,
-73,
-22,
30,
19,
36,
-2,
-57,
28,
51,
17,
2,
-65,
-54,
-34,
48,
4,
-4,
32,
-2,
46,
-75,
43,
40,
3,
-36,
0,
-1,
-31,
-3,
10,
-46,
-14,
-7,
10,
16,
-19,
6,
17,
21,
-14,
-4,
-12,
40,
-58,
-2,
20,
12,
30,
34,
48,
-23,
21,
-33,
2,
24,
-8,
22,
9,
-8,
20,
-65,
-12,
33,
18,
-33,
-29,
-2,
-22,
14,
-13,
-8,
35,
-25,
29,
48,
2,
34,
70,
40,
-25,
-32,
3,
40,
14,
27,
19,
-71,
-32,
28,
-21,
9,
20,
35,
7,
-29,
-70,
9,
-50,
-18,
56,
30,
22,
-38,
37,
-61,
-41,
28,
-26,
-17,
37,
-7,
-62,
-3,
10,
75,
-31,
57,
15,
5,
12,
-2,
37,
23,
47,
49,
-10,
-35,
22,
-5,
26,
8,
-20,
18,
-15,
-13,
-27,
0,
19,
8,
60,
8,
40,
-24,
-64,
-45,
-55,
-60,
23,
-12,
1,
40,
5,
-12,
6,
26,
-8,
1,
19,
-4,
-10,
-11,
-22,
-71,
-27,
66,
-9,
-21,
55,
-7,
-39,
36,
43,
-21,
26,
-29,
12,
-3,
-45,
-51,
-55,
-14,
8,
-32,
6,
36,
-5,
18,
-11,
-33,
-16,
-17,
-29,
16,
2,
2,
19,
-7,
48,
0,
56,
-30,
-25,
9,
23,
24,
-2,
77,
0,
-51,
-15,
-64,
0,
-62,
-13,
-35,
5,
15,
17,
-18,
-11,
14,
-45,
-2,
-3,
11,
-18,
9,
13,
-25,
9,
-33,
-8,
-6,
-18,
12,
17,
1,
-32,
72,
-36,
33,
-30,
12,
17,
0,
-17,
-1,
18,
-38,
27,
-11,
-4,
12,
30,
-19,
-1,
37,
-28,
-36,
-20,
15,
14,
-22,
-19,
-58,
8,
17,
48,
10,
-11,
-24,
28,
-13,
22,
31,
-35,
-4,
12,
-28,
-16,
28,
-61,
-11,
-30,
-20,
-2,
-68,
30,
5,
45,
19,
15,
-13,
-26,
-9,
-22,
42,
-17,
53,
-16,
15,
53,
-19,
0,
20,
-2,
-40,
82,
-13,
12,
27,
-18,
-20,
30,
19,
-5,
-3,
17,
16,
5,
-42,
7,
38,
-27,
10,
-63,
-8,
1,
-55,
22,
-17,
-31,
43,
4,
37,
14,
0,
13,
-77,
-32,
-32,
24,
-20,
-38,
16,
51,
62,
-45,
1,
17,
34,
19,
34,
-9,
0,
44,
7,
-25,
-12,
-49,
-5,
-3,
4,
-19,
26,
49,
20,
-34,
-51,
11,
-41,
22,
8,
-25,
-10,
6,
37,
-26,
-55,
19,
13,
0,
-39,
-27,
10,
9,
48,
19,
-69,
47,
-31,
-9,
10,
34,
15,
-5,
-27,
-23,
48,
-14,
0,
2,
-31,
6,
6,
31,
48,
-37,
-75,
0,
-42,
-5,
0,
-8,
22,
40,
-27,
-9,
-3,
-11,
-12,
17,
-27,
52,
37,
15,
-8,
-13,
-28,
22,
-6,
-35,
25,
-8,
20,
10,
31,
86,
35,
0,
-29,
-21,
14,
-16,
17,
-54,
-17,
26,
-4,
5,
-50,
6,
-55,
34,
-71,
37,
-1,
32,
16,
54,
6,
-15,
21,
55,
43,
42,
20,
-15,
-26,
-21,
14,
7,
20,
-26,
40,
28,
-7,
11,
0,
-21,
6,
3,
-38,
-58,
16,
51,
58,
46,
-29,
-24,
-37,
53,
-21,
2,
5,
25,
-43,
-7,
-29,
-67,
-45,
19,
-14,
-29,
-18,
-7,
19,
-34,
53,
9,
52,
10,
-34,
26,
-56,
30,
10,
78,
0,
29,
11,
20,
70,
14,
-48,
-23,
-9,
-54,
-9,
21,
-16,
26,
-76,
29,
33,
42,
-29,
11,
-15,
0,
8,
-2,
-34,
6,
80,
-16,
11,
18,
5,
-14,
19,
81,
-20,
42,
-36,
-24,
-95,
-10,
-3,
6,
10,
-34,
-11,
-9,
4,
-9,
68,
10,
-57,
-38,
1,
29,
21,
-10,
-15,
-35,
7,
25,
9,
27,
5,
16,
50,
-19,
-9,
30,
9,
2,
32,
-22,
31,
-15,
-23,
26,
-45,
48,
28,
15,
62,
-34,
-45,
-23,
-9,
32,
5,
-38,
9,
-1,
0,
14,
1,
15,
33,
67,
20,
-16,
27,
-10,
58,
-37,
-5,
44,
-49,
-44,
10,
3,
53,
-6,
-24,
-17,
19,
-20,
1,
-1,
-23,
64,
16,
13,
13,
-8,
36,
-11,
17,
-70,
-41,
-21,
29,
-9,
-2,
0,
-16,
-44,
37,
21,
-61,
29,
85,
-9,
-10,
-19,
-38,
5,
-54,
-7,
17,
37,
-56,
-6,
10,
-25,
7,
-33,
56,
12,
16,
-21,
-5,
-13,
16,
-23,
-6,
14,
19,
29,
33,
-4,
-16,
44,
-23,
27,
78,
11,
23,
-32,
0,
41,
15,
10,
-34,
11,
-26,
-7,
30,
44,
-10,
-36,
-9,
-66,
50,
86,
10,
-23,
14,
74,
-9,
-28,
4,
-27,
18,
-64,
5,
-30,
-24,
-18,
40,
-10,
-11,
57,
-13,
-63,
12,
33,
-14,
-51,
-77,
-26,
41,
-9,
5,
34,
-43,
-51,
-6,
-54,
3,
54,
27,
-23,
-49,
-14,
3,
-24,
-35,
27,
-9,
19,
-28,
-26,
-4,
5,
57,
2,
12,
-38,
-6,
-25,
-32,
63,
3,
-76,
-11,
-3,
-61,
34,
-42,
-6,
5,
-83,
37,
-63,
24,
-23,
-20,
-21,
1,
-2,
-15,
30,
-48,
28,
-8,
-10,
-47,
-49,
11,
-16,
-53,
39,
-12,
15,
-1,
-7,
6,
-26,
-5,
-30,
31,
3,
-1,
21,
42,
-56
] |
Hooker, J.
The undisputed evidence in this record shows that the plaintiff’s husband, acting upon her behalf, made application to Walsh, the local agent of the defendant, for insurance upon the plaintiff’s building, upon a Saturday. He desired insurance to the amount of $1,000. The rate was fixed, and he paid Walsh $10, taking his receipt, reading as follows:
“Holland, Mich., May 25, 1895.
“Received of M. W. Kleis ten dollars, insurance money for three years on house and household goods.
“W. C. Walsh.”
Walsh promised to draw the policy upon the following Monday, and did so, and two or three days later the policy was delivered to the plaintiff’s husband, who called for it according to - agreement. In September following, the property was burned, and this action is brought to recover the insurance. The policy contains a clause, to be found in all Michigan standard policies, to the effect that the—
“ Entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance. * * * No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorséd hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured, unless so written or attached.”
As a fact, the plaintiff had, at the time the defendant’s policy was purchased, insurance in another company, to the amount of $400, $300 of which was upon the dwelling, and $100 on the contents; and afterwards she procured $500 more upon the dwelling, and $100 on the furniture. At the time of the fire, then, she had in the three companies $l,550 upon the dwelling, and $450 upon the furniture. The testimony shows that the plaintiff’s husband considered ■ the dwelling worth $1,000. Other testimony indicates that it could have been replaced for $500. The plaintiff’s husband testified that, at the time of his application for the insurance in the defendant company, he stated to the agent that there was other insurance upon the property, procured from one Marsh, and that, as soon as he obtained sufficient money, he intended to take out more insurance upon the premises; and that Walsh told him not to go to Marsh for such prospective insurance, but to come to him (Walsh) for it; but that he afterwards procured it from Marsh. The plaintiff also testified that at the time she signed the application, which was some days later, she asked Mr. Walsh: “‘If we wanted to insure higher, must I let him know?’ and he told me, ‘No;’ I could insure in any policy I liked, but he would like to insure me.” This was after the policy was received. This testimony is disputed, but, for the purposes of the case, must be assumed to be true.
The following quotation from the brief of counsel for the plaintiff will show his understanding of the issue which was made:
“ The first point relied upon by the appellant is that there can be no recov.ery under the declaration in the case. This point was raised by the defendant early in the trial of the case in the court below, and, we think, was properly overruled by the circuit judge. The declaration contains but one count, and the plaintiff relies entirely upon a verbal contract made with the defendant on the 25th day of May, A. D. 1895. On that day, all the terms and conditions of insurance were agreed upon between the parties, and the money was paid by the plaintiff, and a receipt taken therefor; and the agent of the defendant then stated that he would draw up the policy on the next Monday, and that, if the property burned before said Monday, it would be considered insured. There was no written application, and the whole contract was a verbal one. If the plaintiff had declared upon a written contract, and had made the policy issued the basis of her action, then it is true that if, either through mistake or fraud, the written contract did not represent the intentions of the parties, the injured party must have come into a court of equity to have the contract reformed before she could base her action upon it.”
He seems to concede that he is not attempting to recover upon the policy, but upon the oral contract for a policy; and the declaration alleges that the policy delivered was not in conformity to the agreement for insurance, and that—
“By reason of the defendant not performing its said contract and agreement for insurance so made with the plaintiff, as aforesaid, and by not executing and delivering to the plaintiff a policy of insurance therein and thereby insuring the plaintiff against loss or damage by fire upon said property, according to the terms of said contract and agreement for insurance so made as aforesaid, and by fraudulently inserting in said pretended policy said clause relating to other contracts of insurance upon the property covered in whole or in part by said policy of insurance delivered by defendant to plaintiff, she is injured and has sustained damage to the amount of one thousand (1,000) dollars.”
We are justified in saying, therefore, that the plaintiff’s brief shows that recovery was sought upon an alleged oral contract, made by the defendant, to insure her building and its contents, and to issue a policy to her in conformity to their talk. The evidence in the case shows conclusively that the defendant was not designated as the company to furnish this insurance and issue the policy. Plaintiff’s husband, who is alleged to have made the oral contract, testified that he met Mr. Walsh, and told him that he wanted to insure some property; and Walsh said it was all right, and asked how much, and Kleis told him; and then Walsh asked him a few questions, and then said, “Well, it is all right,” but that he was too tired to draw up the policy that night, so he gave him a receipt for the money, reading as follows:
“Holland, Mich., May 25, 1895.
“Received of M. W. Kleis ten dollars, insurance money for three years on house and household goods.
“W. C. Walsh.”
Walsh promised to draw the policy the first thing Monday morning, and told Kleis to call in any time the next week, and get it, and also said, “if it burns from now until Monday, we will call it insured.” It appeared that Walsh was agent for several companies, and it is manifest that, had a fire occurred before Monday, it would be difficult for the court to find from this testimony that the defendant was a party to the contract, any more than any one of a dozen other companies. There was therefore, at the most, a contract with Walsh to insure. New Orleans Ins. Ass’n v. Boniel, 20 Fla. 815; Sheldon v. Insurance Co., 65 Wis. 438. So far, then, there was no oral contract upon which this action can be maintained. A few days later, the policy which was subsequently issued by the defendant company was received by the plaintiff; and, a week or two after that, she was required to sign an application, which she did. This was the completion of a contract, evidence of which was contained in the two writings, viz., the application and policy, which merged all negotiations and agreements in the writing; and, under innumerable authorities, it is not subject to contradiction or variation by parol in an action brought upon it. If the action is brought on the oral contract underlying it, a -complete answer is that the negotiations were reduced to writing, and executed and accepted by the parties. The plaintiff accepted the policy, and, after the property was destroyed by fire, she made claim under it; but, when the defense was set up that she had broken a condition of the policy, she brought her action, not upon the policy, but upon what the declaration alleges to be an oral contract for a policy, by which the defendant is said to have agreed to issue a pqlicy of insurance which should not preclude other insurance without its assent; and this it is claimed was never done, although a policy did issue, and was accepted by the plaintiff.
The plaintiff cannot sustain this declaration by the record — First, because there never was a time prior to the delivery of the policy when it can be said that the defendant had any contract relations with the plaintiff; and, second, because the evidence conclusively shows that the parties reduced the result of their various interviews and negotiations to writing, and that the policy accepted and kept by the plaintiff, and the application held by the defendant, are the evidence of the contract. We need go no further than our own Reports for a cloud of cases which sustain the doctrine. See 1 Jac. & C. Dig. 882, 3 Jac. & C. Dig. 380, where the Michigan cases are collected.
If, as counsel contends, this policy was not in accord with the oral agreement, she might have had it reformed by applying to a court of equity on the ground of mistake, and rescinded, if not reformed, upon the ground of fraud, if there were fraud. But she has taken a different course. With her written contract outstanding, she seeks to ignore it, and recover upon a contract for a contract, and depends for success upon her ability to convince a jury that the written contract that she holds is not such a contract as the defendant agreed to make. Counsel does not cite a case in point, and excepta dictum in the case of O’Donnell v. Insurance Co., 73 Mich. 4, and Connecticut Fire Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231 (18 Am. St. Rep. 398), and a count in a declaration which the court held to introduce a new cause of action in the latter case, produces no authority to sustain his position; while, in the case last cited, Mr. Justice Morse states that a mistake or fraud in writing a policy cannot be corrected in a court of law. If the plaintiff is right in her contention, the same rule would apply when the property was misdescribed, or where in any respect the policy issued and accepted, or contract executed, did not conform to the oral negotiations preceding its issue. Equity has power to deal with these questions; but in an action at law, when it appears that the contract has been deliberately put in writing, and accepted, the writing is the contract. In Gerrish v. Insurance Co., 55 N. H. 358, it is said:
‘ ‘ A policy is the usual evidence of a contract of insurance. It is not necessary, however, in order to enable the assured to maintain an action upon the contract. If issued, it is the best evidence of what the contract was, and parol evidence would not be admissible to contradict it; but when none is issued, the contract may be proved by any competent evidence. ”
In New York Ice Co. v. Insurance Co., 23 N. Y. 357, the court held that the policy might be reformed. Phoenix Fire Ins. Co. v. Gurnee, 1 Paige, 278 (19 Am. Dec. 431); Phoenix Fire Ins. Co. v. Hoffheimer, 46 Miss. 645; Stout v. Insurance Co., 12 Iowa, 371 (79 Am. Dec. 539); Longhurst v. Insurance Co., 19 Iowa, 364. In Hammel v. Insurance Co., 50 Wis. 240, it was held that in an action for loss by fire, on a proper complaint and prayer, the equitable jurisdiction would permit reformation and enforcement of the policy. In Collett v. Morrison, 9 Hare, 162, 12 Eng. Law & Eq. 171, it was held that, when a life policy was drawn in a form differing from the terms of the agreement, equity would deal with the matter on the terms of the agreement. Harris v. Insurance Co., 18 Ohio, 116 (51 Am. Dec. 448); Holmes v. Insurance Co., 10 Metc. (Mass.) 215 (43 Am. Dec. 428). In Mead v. Insurance Co., 64 N. Y. 453, it was held that “to justify a court of equity in changing the language of a written instrument sought to be reformed, in the absence of fraud, it must be established that both parties agreed to something different from what is expressed in the writing, and the proof should be so clear and convincing as to leave no room for doubt.” That case involved the identity of the premises agreed to be insured. If the plaintiff’s contention in the present'case is correct, the plaintiff in that case should have disregarded the policy, gone into a court of law, and shown by parol that the policy did not conform to the oral arrangement, and recovered the loss under the guise of damages for the breach of the oral contract to issue a policy, on a bare preponderance of proof. See, also, Van Tuyl v. Insurance Co., 55 N. Y. 657; Bryce v. Insurance Co., Id. 240 (14 Am. Pep. 249); National Fire Ins. Co. v. Crane, 16 Md. 260 (77 Am. Dec. 289); Tesson v. Insurance Co., 40 Mo. 33; Hearne v. Insurance Co., 20 Wall. 488; Snell v. Insurance Co., 98 U. S. 85.
The inference to be drawn from these cases is that, where there is fraud or mistake, equity may afford relief, but will do so cautiously, and will require clear proof of the fraud or mistake. They negative the idea that one may reduce his oral agreement to writing, formally execute or accept and keep it, and at a later time' ignore the solemn writing, and bring an action upon a preliminary agreement. This would be an innovation that would render written contracts no better than oral ones, and practically make them subject to variation and contradiction by parol, and, by indirection, evade one of the best and most uniformly settled rules of law, and render obsolete a branch of equity jurisdiction. This seems to be indicated by the opinion of Mr. Justice Morse, herein-before quoted. Where an oral contract for insurance, complete in all essentials, has been made, and a policy promised under it is refused, we have no doubt that an action will lie for the breach; and possibly in some cases the measure of damages would be the loss; in others it might not. In Dailey v. Accident Ass’n, 102 Mich. 299 (26 L. R. A. 171), it is intimated that a recovery might be had upon an oral contract. But that was a case where the insured was killed before the policy reached him. He had not seen it, and had therefore no opportunity to accept or reject it. There was no written contract. There was an oral one; but, when the oral contract has merged in a writing executed and accepted by the complaining party, he must seek his remedy in equity if unwilling to abide by the writing. It follows that a recovery should not have been permitted upon the declaration.
Had this declaration'counted upon the policy, and the defense been made that the other insurance forfeited the policy, it would have led to the question of waiver of the condition by the defendant.
As there could be no recovery under this declaration, • the judgment is reversed.
The other Justices concurred. | [
34,
7,
-8,
-17,
-8,
15,
11,
8,
12,
-44,
49,
6,
16,
32,
14,
0,
-15,
-6,
5,
-1,
-38,
-13,
-32,
-34,
-41,
-8,
39,
-42,
6,
-12,
-21,
58,
19,
11,
-48,
-12,
34,
-49,
-68,
-14,
21,
-24,
65,
-29,
-1,
-8,
1,
-15,
48,
-15,
9,
0,
12,
-23,
-14,
-14,
21,
34,
-3,
28,
-31,
-69,
34,
4,
-5,
25,
24,
23,
14,
-8,
70,
0,
-5,
-8,
-4,
14,
-36,
28,
-52,
38,
-15,
-31,
18,
-6,
-25,
22,
-29,
-45,
-13,
28,
-39,
-18,
19,
17,
23,
0,
-11,
48,
-10,
83,
15,
38,
-54,
-32,
0,
16,
32,
-39,
-53,
36,
-65,
-21,
44,
20,
39,
-8,
6,
5,
-33,
17,
54,
-4,
-19,
1,
22,
41,
-5,
-35,
5,
-38,
7,
-5,
11,
11,
37,
-24,
7,
-33,
36,
-34,
11,
-24,
-54,
-10,
-20,
-24,
-28,
-50,
-72,
-11,
-19,
-8,
-22,
-2,
20,
-40,
-37,
-35,
24,
-23,
7,
-77,
-4,
19,
-69,
-19,
17,
10,
-15,
29,
32,
-51,
-27,
-30,
49,
5,
66,
-9,
-22,
-5,
22,
16,
-19,
-6,
58,
-32,
16,
20,
25,
-5,
57,
-61,
-72,
19,
-14,
34,
47,
19,
23,
-14,
37,
-43,
2,
3,
17,
-3,
3,
-18,
5,
15,
-3,
1,
-24,
-16,
-49,
44,
-33,
2,
-28,
-51,
16,
4,
-11,
10,
-52,
-36,
-19,
0,
28,
2,
-30,
3,
3,
38,
-32,
51,
-26,
-3,
37,
-1,
17,
5,
3,
30,
70,
-37,
-38,
-23,
1,
1,
-13,
40,
19,
19,
-5,
-17,
-2,
-12,
4,
26,
-51,
20,
-67,
44,
39,
-44,
38,
6,
0,
3,
-8,
-5,
42,
27,
-15,
-63,
11,
17,
-22,
-45,
20,
-18,
-55,
-22,
6,
-40,
4,
13,
-1,
-30,
25,
-44,
-7,
-18,
68,
-1,
1,
26,
-17,
-22,
0,
-14,
2,
13,
8,
0,
-16,
-16,
-2,
18,
-42,
-2,
18,
-26,
43,
-29,
-21,
-3,
-65,
26,
31,
-22,
-28,
29,
3,
-49,
24,
-4,
-23,
18,
-24,
-33,
6,
33,
-51,
5,
11,
-29,
0,
-23,
-7,
21,
13,
-21,
-61,
16,
3,
-3,
-12,
-28,
31,
-21,
-29,
19,
-36,
38,
41,
13,
-19,
39,
39,
48,
-52,
14,
17,
-5,
-35,
-29,
8,
38,
43,
-12,
-25,
23,
10,
-5,
-13,
47,
-20,
53,
19,
-2,
-4,
15,
3,
-2,
-15,
-29,
-45,
-10,
-67,
0,
49,
28,
-22,
-9,
-58,
-54,
-48,
-13,
8,
23,
11,
-5,
-53,
-5,
-15,
-26,
-30,
-7,
-4,
1,
-25,
-24,
14,
10,
31,
-1,
-5,
-13,
43,
30,
-2,
3,
10,
-31,
30,
32,
-43,
-36,
3,
-27,
47,
-22,
23,
-4,
-39,
-2,
-23,
8,
13,
16,
-39,
10,
16,
13,
-35,
-21,
15,
-32,
11,
2,
74,
82,
-44,
54,
15,
-27,
0,
-2,
15,
-13,
3,
-8,
17,
9,
4,
-9,
28,
-33,
-14,
-28,
-26,
-35,
-18,
-8,
7,
2,
-18,
55,
7,
34,
27,
35,
-1,
-39,
23,
-23,
16,
2,
72,
-37,
-19,
-28,
12,
32,
15,
-10,
25,
-35,
-29,
-5,
53,
0,
-7,
-12,
9,
8,
1,
37,
30,
-3,
5,
8,
28,
68,
-7,
0,
38,
21,
-39,
-18,
-56,
-19,
-8,
14,
23,
0,
-17,
5,
11,
6,
10,
-30,
-8,
4,
67,
32,
0,
-20,
9,
14,
20,
35,
-1,
1,
25,
-19,
21,
-14,
-27,
-38,
-2,
-16,
8,
33,
30,
-8,
-12,
33,
-16,
-4,
33,
-7,
7,
-7,
6,
8,
32,
2,
-45,
10,
4,
-7,
14,
-16,
-11,
-21,
-27,
50,
1,
4,
0,
-32,
18,
-3,
-13,
18,
-25,
20,
19,
33,
-34,
-18,
12,
30,
-21,
-13,
-7,
-11,
4,
-34,
-33,
5,
-7,
-22,
-10,
43,
43,
53,
-2,
21,
-3,
-28,
3,
12,
19,
-16,
21,
15,
31,
24,
19,
6,
9,
20,
45,
-11,
14,
1,
6,
-10,
36,
-10,
26,
-53,
45,
15,
-25,
1,
-10,
12,
-50,
29,
-45,
56,
-41,
-28,
-17,
-67,
-34,
-47,
23,
-26,
33,
-35,
11,
3,
4,
8,
-18,
-29,
-17,
54,
-16,
-11,
87,
-43,
-6,
11,
36,
-5,
12,
18,
-5,
11,
-10,
44,
37,
26,
20,
0,
16,
31,
-4,
12,
-10,
-25,
-11,
-53,
-14,
0,
-23,
-21,
45,
-1,
36,
6,
48,
-61,
-7,
3,
0,
24,
-15,
33,
44,
-78,
14,
2,
33,
28,
18,
-35,
-20,
34,
14,
31,
-8,
-16,
-16,
-42,
46,
-22,
-49,
-4,
-14,
13,
-20,
-1,
-15,
-24,
-43,
6,
-51,
16,
-19,
9,
13,
21,
-7,
-5,
29,
-2,
-36,
-45,
19,
-28,
59,
8,
-13,
-16,
15,
-15,
39,
9,
-32,
-14,
-37,
-13,
-8,
38,
-13,
-20,
18,
-5,
13,
-17,
23,
-70,
-14,
19,
-29,
7,
15,
12,
41,
-32,
-32,
-34,
51,
-39,
-19,
-12,
-15,
19,
31,
-23,
35,
1,
-11,
6,
22,
-57,
-32,
18,
25,
-59,
-7,
-33,
15,
-6,
3,
-27,
-13,
-4,
-30,
6,
-12,
-57,
-13,
6,
-13,
-79,
-38,
33,
0,
-19,
3,
62,
-14,
41,
-26,
-7,
-21,
-35,
-39,
-57,
-11,
-6,
-15,
-25,
-50,
-7,
-8,
27,
-18,
-37,
-50,
29,
41,
8,
10,
75,
23,
-19,
-13,
-2,
38,
19,
-36,
-1,
39,
26,
-16,
-32,
1,
-10,
19,
-50,
-3,
-15,
-27,
-23,
12,
-11,
0,
4,
11,
-16,
-7,
16,
-52,
-66,
27,
35,
11,
-57,
62,
5,
-56,
43,
39,
31,
-49,
21,
20,
-6,
-27,
44,
68,
12,
10,
55,
2,
-46,
-17,
0,
7,
-4,
-10,
-25,
-10,
39,
1,
37,
4,
-13,
3,
21,
9,
-35,
35,
-28,
-38,
68,
-30,
-8,
-21,
71,
23,
-49,
16,
-41,
32,
18,
52,
0,
-17,
53,
6,
-7,
-3,
79,
67,
-37,
45,
-32,
-19,
18,
28,
17,
-6,
0,
-48,
37,
52,
-57,
46,
71,
1,
48,
51,
72,
-33,
-5,
-7,
25,
-28,
30,
-14,
57,
2,
-28,
39,
-24,
45,
41,
-8,
-48,
11,
-34,
10,
-49,
-48,
1,
7,
26,
-5,
-44,
0,
-18,
-47,
31,
17,
22,
-17,
-41,
-12,
-41,
-20,
29,
10,
0,
9,
-23,
0,
26,
0,
3,
17,
11,
-3,
39,
-31,
6,
20,
26,
1,
-13,
-28,
38,
35,
-10,
-8,
-4,
-50,
-4,
-20,
-52,
32,
15,
3,
63
] |
Hooker, J.
In 1885, Mason deeded the property involved in this suit to Beate Cayan, at the instance of her husband, William Cayan, and they gave Mason their notes, secured by a mortgage upon the premises, for a portion of the purchase price. In 1891 four new notes, for $350 each, and a new mortgage, were given to take the place of the old. They were dated September 1, 1891, and the notes were payable in two, three, four, and five years, respectively, with interest at 7 per cent. Notes were also given for the interest. Under the decision in the case of Wilson v. Campbell, 110 Mich. 580, these were negotiable instruments. On November 10, 1891, Mason delivered the notes and mortgage to the complainant as collateral security for a note of his own for $2,000, accompanying them by an unconditional assignment of the notes and mortgage. In July, 1891, Mason took up his $2,000 note, paying in part therefor with the notes and mortgage already pledged as collateral. At this time the assignment was placed on record. There was evidence tending to show, and the circuit judge found, that notice was given to William Cayan, in 1891, of the assignment of this mortgage. The two notes first falling due were paid or adjusted' between Mason and Cox in 1897. Mason testifies that he charged Cayan with the amount. Cayan paid the interest on the three notes last falling due to Mason and his bookkeeper until 1891, when, according to his testimony, he first received notice from Cox that he was the owner. Subsequently he paid some interest at the bank, taking up the coupons or interest notes. This suit is a foreclosure.
The defendants claim that, at the time the first mortgage was given, it was agree'd orally between Mason and Cayan that the latter should pay the interest in money, and that the principal might be paid in clothes and tailor work, and that this was renewed when the second mortgage was given. Cayan testifies that he was conducting the clothing business for his wife, and it is obvious that he transacted all of the business pertaining to the mortgage. The circuit judge granted a decree as prayed, and the defendants have appealed.
Counsel for the defendants contend — First, that the notes were not negotiable, and therefore complainant took the notes subject to the equities existing between the defendants and Mason; second, that Mrs. Cayan never had notice that the complainant owned the mortgage, and that notice to her husband did not bind her, as he was her agent only for the purpose of paying the notes. We have already said that the mortgage and notes were negotiable, and we agree with the learned circuit judge that the evidence shows that notice of the assignment to the complainant was given.to Mr. Cayan in 1891, and that his agency was such that it was equivalent to notice to his wife. Leland v. Collver, 34 Mich. 418, 427.
The decree is affirmed, with costs.
The other Justices concurred. | [
40,
43,
5,
-8,
-11,
32,
40,
23,
36,
7,
31,
-15,
13,
36,
20,
-23,
21,
-77,
17,
-14,
-44,
-44,
-44,
-44,
0,
53,
19,
-48,
25,
-11,
47,
8,
-43,
50,
-14,
40,
-7,
-4,
9,
-17,
21,
-40,
23,
-17,
-15,
-25,
0,
-43,
-19,
4,
32,
-43,
43,
14,
-68,
16,
-13,
-23,
-30,
21,
2,
-80,
26,
6,
-33,
30,
-13,
-4,
37,
-54,
0,
-40,
39,
-26,
-26,
-44,
-56,
3,
-37,
-37,
-14,
-32,
17,
16,
-22,
-3,
-43,
-23,
-19,
-11,
-17,
52,
20,
14,
-4,
33,
-7,
61,
32,
51,
-9,
-67,
-79,
20,
18,
34,
-6,
-27,
-48,
32,
-6,
10,
52,
24,
-52,
-19,
-6,
-16,
-15,
-38,
-31,
15,
-10,
-79,
23,
15,
-54,
-41,
-33,
4,
-33,
-7,
-59,
23,
-48,
-10,
27,
-22,
-46,
-40,
-5,
-33,
-39,
-52,
19,
1,
12,
-42,
-25,
0,
-30,
44,
-9,
44,
12,
-30,
22,
-13,
24,
-21,
-10,
-43,
19,
-36,
-37,
4,
-21,
11,
4,
-32,
-1,
36,
-26,
-22,
4,
-14,
23,
-48,
-45,
-9,
-7,
38,
-10,
-33,
19,
-3,
-2,
-13,
15,
58,
9,
-19,
-48,
21,
14,
5,
-8,
-63,
25,
18,
-28,
-28,
48,
-25,
-34,
-19,
34,
0,
-15,
11,
-2,
31,
-44,
-7,
-48,
26,
22,
-31,
-11,
14,
29,
10,
-5,
22,
-69,
-16,
54,
3,
41,
30,
-19,
16,
-20,
14,
-4,
49,
-18,
35,
3,
16,
-16,
-4,
-19,
-19,
-34,
23,
-40,
8,
3,
-39,
-12,
50,
-63,
25,
-1,
33,
14,
-8,
8,
-21,
-16,
15,
-47,
22,
34,
-59,
45,
-5,
-15,
69,
-2,
-59,
59,
55,
-17,
-4,
6,
-11,
-65,
-36,
-1,
-5,
-8,
-15,
5,
-8,
-1,
9,
-5,
15,
10,
17,
20,
-14,
78,
-23,
-34,
-17,
23,
-15,
-43,
-54,
6,
-5,
16,
4,
-10,
-16,
-20,
-28,
51,
-20,
9,
-2,
23,
36,
-30,
-4,
1,
23,
58,
13,
-3,
45,
23,
11,
50,
-36,
-6,
24,
-33,
-21,
-34,
36,
4,
35,
21,
22,
0,
-10,
9,
29,
10,
-9,
6,
-13,
-52,
-48,
-58,
57,
-24,
-4,
-38,
30,
11,
39,
25,
-1,
-18,
42,
44,
24,
-2,
-24,
-13,
16,
-39,
0,
18,
61,
4,
34,
-48,
-16,
-44,
57,
-23,
11,
-27,
50,
12,
-16,
8,
1,
26,
-11,
-20,
-32,
-13,
-36,
-31,
20,
28,
30,
14,
-55,
-8,
-9,
-62,
-9,
-5,
39,
-15,
-15,
-55,
23,
-7,
-24,
-1,
10,
5,
-4,
-16,
8,
-34,
15,
-4,
-20,
-7,
20,
-12,
-27,
-30,
-9,
54,
-12,
39,
-1,
-21,
34,
-80,
35,
50,
-24,
-2,
26,
-13,
33,
-38,
7,
25,
22,
-13,
-2,
70,
28,
-2,
-26,
79,
17,
20,
-14,
0,
25,
3,
2,
16,
-27,
-2,
-63,
66,
0,
21,
90,
22,
-32,
-25,
-10,
-7,
45,
1,
1,
55,
-6,
-15,
-22,
43,
0,
-18,
22,
-22,
14,
0,
77,
-26,
-31,
-87,
-71,
-30,
-17,
102,
-5,
38,
32,
24,
12,
-70,
-45,
-10,
48,
-31,
-13,
3,
-9,
19,
-29,
26,
-32,
9,
19,
-23,
-10,
25,
11,
-40,
27,
33,
10,
30,
92,
14,
19,
-8,
23,
25,
20,
26,
53,
11,
51,
-24,
42,
-11,
64,
8,
16,
18,
42,
34,
-23,
-65,
35,
26,
29,
-50,
56,
-23,
-14,
-14,
25,
-33,
-52,
21,
18,
-42,
20,
49,
7,
4,
10,
6,
17,
16,
-40,
28,
-23,
48,
-22,
6,
-66,
-46,
-25,
10,
11,
-12,
-59,
-26,
-15,
5,
7,
2,
-22,
11,
-37,
-27,
-1,
19,
6,
-42,
53,
-18,
38,
-9,
18,
-13,
-11,
-30,
10,
11,
45,
-5,
0,
-9,
-31,
2,
-50,
-17,
33,
15,
-8,
15,
-43,
1,
27,
15,
-18,
-1,
-9,
27,
-31,
34,
-2,
-3,
19,
32,
-3,
-15,
17,
46,
58,
5,
-23,
24,
12,
-41,
0,
37,
1,
0,
-26,
-28,
46,
-2,
16,
-61,
39,
-11,
-44,
2,
-75,
9,
6,
35,
27,
-7,
-25,
31,
-24,
5,
-11,
22,
-6,
-17,
44,
-35,
-42,
36,
-6,
4,
6,
-14,
-6,
57,
-4,
14,
12,
-48,
19,
35,
-38,
-4,
-22,
31,
-3,
-5,
-52,
22,
6,
-41,
10,
-5,
-35,
-38,
3,
13,
24,
30,
49,
-12,
32,
1,
13,
-21,
40,
-15,
10,
-52,
20,
9,
-47,
-6,
10,
-13,
-42,
-24,
31,
-6,
-13,
-43,
-19,
4,
-1,
76,
-37,
0,
-36,
20,
16,
-12,
33,
-3,
-19,
-46,
49,
6,
25,
-18,
-27,
-12,
2,
-47,
5,
6,
-14,
23,
0,
-40,
10,
-8,
3,
28,
-7,
2,
0,
-3,
0,
-54,
-20,
2,
-19,
-28,
22,
40,
2,
30,
16,
-11,
-33,
-3,
-23,
-75,
2,
-24,
14,
-3,
-3,
76,
10,
45,
0,
5,
-48,
-5,
5,
24,
-5,
20,
6,
54,
53,
2,
0,
-6,
-14,
-69,
1,
1,
-40,
34,
-45,
-22,
5,
-27,
-13,
61,
30,
33,
-21,
4,
22,
-64,
-72,
31,
-14,
-16,
42,
10,
15,
14,
25,
-12,
54,
13,
8,
1,
-14,
-34,
22,
-50,
6,
0,
-27,
-37,
27,
-31,
16,
29,
16,
3,
2,
-19,
-56,
23,
20,
36,
-33,
6,
56,
-41,
-31,
-4,
-9,
-13,
0,
-50,
-44,
-2,
7,
10,
-42,
36,
1,
-15,
20,
28,
-29,
6,
33,
24,
6,
-28,
17,
-55,
8,
26,
30,
49,
-19,
10,
-18,
-42,
13,
-12,
63,
-11,
62,
7,
16,
-44,
23,
-14,
-7,
14,
-3,
-11,
-7,
-1,
-48,
0,
-1,
9,
11,
-25,
-5,
8,
-7,
2,
45,
29,
19,
28,
-36,
-2,
-13,
-6,
34,
38,
-31,
19,
32,
2,
-47,
-37,
-14,
-5,
-6,
29,
16,
-38,
18,
2,
34,
-13,
45,
10,
-41,
39,
-31,
-21,
22,
12,
-22,
4,
2,
-3,
27,
30,
-13,
21,
1,
-56,
42,
48,
73,
17,
-59,
-28,
-42,
-9,
22,
-5,
50,
6,
-38,
33,
26,
26,
-4,
-2,
-39,
25,
-8,
-3,
-57,
-13,
26,
39,
-36,
7,
-27,
38,
-23,
-40,
34,
8,
23,
16,
-27,
1,
-22,
0,
-8,
-12,
42,
11,
-27,
0,
3,
-19,
-9,
-31,
-21,
36,
19,
0,
-57,
16,
18,
-23,
-14,
-65,
43,
19,
4,
-17,
-11,
20,
26,
32,
45,
9,
20,
-12,
75
] |
Moore, J.
The United States Mutual Accident Association of the State of New York was represented for many years by the defendant as its state agent. This company is now in process of liquidation. Mr. Gray was appointed by the supreme court of the State of New York as its receiver. He claimed that the defendant was indebted to the company for collections made by him, and sued him in justice’s court, where judgment was obtained by plaintiff. An appeal was taken to the circuit court, where the learned judge directed a verdict in favor of defendant. Plaintiff brings the case here by writ of error.
It is the claim of the defendant that a receiver appointed in the State of New York has no power to bring suit in this State. A similar case was before the court in Baldwin v. Wayne Circuit Judge, 101 Mich. 133. . We will not pass upon the question whether to allow this receiver to bring this action would contravene the rights of citizens of this State, because we think the learned judge rightly disposed of the case upon the other branch of it.
The judge instructed the jury as follows:
“At the time of the contract between the United States Mutual Accident Association and the defendant, the testimony shows it was contemplated by the parties thereto that some different rate of compensation greater than was expressed in the written agreement might be afterwards given to the agents occupying a like position with the defendant, and to guard against a continuance of the contract under those circumstances, inasmuch as it was a five-years contract, the following clause was inserted: ‘ If the first party, during the continuance of this contract, shall allow, under similar circumstances and conditions, any other state agent compensation in excess of the above, then the second party shall be entitled to a like increase.’ Now, gentleman of the jury, it is obvious that there could not be another agent whose circumstances were identical; and similarity, rather than identity, must, of course, govern. It becomes a difficult matter for the court, inasmuch as the similarity is not further defined, to say where the similarity ends and dissimilarity begins; but I am constrained to hold that in the case at bar the amount received by the agent Barrows should have been given to the defendant ; and, this being so, the claim, I think, may properly be set off, it being in its nature a liquidated claim, that is susceptible of ascertainment by mere matter of computation; and the amount which he would be entitled to under this phase of the case would exceed the amount which is due, and in his hands, to the corporation.”
There was testimony which showed that the state agent of this company at St. Louis, Mo., was allowed 5 per cent, more commissions on a class of risks than was' allowed defendant, .and this amount would exceed the amount of money claimed to be in the hands of defendant, belonging to the company. There was also testimony showing that the company allowed its state agents at Boston pay for the office rent paid by them. This amount was much more than the amount retained by defendant. It is true that the services rendered by these several agents were not in all particulars identical, but we think the services were of a like character, rendered under similar circumstances and conditions, within the understanding of the parties and the meaning of the words used-in the contract between the company and the defendant, and that a verdict for the defendant was properly directed.
Judgment is affirmed.
The other Justices concurred. | [
-3,
-21,
-1,
23,
34,
9,
-1,
-71,
4,
63,
43,
64,
33,
21,
-12,
-26,
33,
39,
10,
-20,
1,
-20,
-10,
0,
-21,
-42,
-4,
-34,
-20,
7,
-9,
-46,
-29,
-13,
-58,
-2,
21,
24,
-23,
-24,
48,
19,
25,
17,
-29,
32,
21,
17,
46,
-37,
50,
-28,
46,
3,
3,
-70,
14,
24,
3,
3,
-30,
-17,
23,
-35,
21,
-14,
8,
9,
9,
-12,
-22,
30,
-24,
32,
34,
-19,
5,
-10,
-47,
-46,
34,
-33,
30,
-35,
0,
104,
0,
9,
11,
12,
-40,
3,
-22,
4,
-3,
31,
76,
47,
32,
38,
13,
-3,
-47,
23,
6,
10,
-17,
-61,
9,
17,
-9,
-17,
0,
-17,
5,
10,
-26,
50,
2,
13,
27,
0,
-10,
36,
7,
22,
28,
-33,
-15,
16,
22,
-21,
-11,
4,
-30,
3,
-20,
-26,
36,
-12,
22,
-19,
-5,
-47,
-27,
5,
6,
0,
-44,
-16,
15,
-14,
6,
-20,
-6,
-49,
-1,
-40,
76,
-23,
38,
-19,
-8,
-4,
-12,
11,
0,
0,
-10,
23,
-29,
27,
-8,
19,
-11,
-22,
8,
-18,
-40,
12,
-22,
16,
1,
-5,
10,
-60,
-6,
-4,
40,
-38,
56,
-47,
0,
6,
-7,
11,
39,
-11,
3,
9,
-33,
-28,
-31,
-15,
-26,
20,
2,
-48,
2,
49,
-21,
-7,
13,
-41,
11,
38,
-61,
-2,
-11,
-46,
-2,
14,
3,
23,
-31,
-46,
0,
3,
22,
-7,
1,
2,
-19,
57,
-17,
-3,
14,
6,
9,
-11,
7,
13,
-18,
-18,
6,
-12,
0,
32,
-39,
-2,
-16,
40,
27,
21,
-36,
-47,
-45,
0,
-44,
-22,
-33,
13,
-67,
-1,
13,
-61,
23,
42,
5,
9,
-31,
-8,
42,
11,
-23,
-55,
-11,
2,
-5,
-9,
31,
7,
-32,
-16,
-41,
-3,
9,
-34,
-11,
-2,
37,
-41,
30,
23,
11,
14,
25,
4,
0,
-36,
-43,
-7,
21,
-10,
39,
-2,
-47,
-31,
6,
-21,
-41,
-45,
-18,
-64,
80,
23,
-1,
-21,
8,
-5,
8,
52,
9,
-53,
-2,
-3,
61,
-29,
4,
-33,
-20,
40,
56,
-34,
-20,
0,
19,
32,
-19,
2,
-8,
2,
-11,
-32,
36,
-7,
40,
-36,
40,
10,
-52,
-22,
-21,
-11,
62,
18,
60,
-14,
-24,
48,
17,
21,
-31,
-25,
61,
-36,
10,
7,
0,
29,
5,
2,
-22,
-56,
0,
-15,
6,
27,
-42,
7,
-6,
3,
-29,
-11,
24,
-4,
-2,
-14,
-28,
37,
-59,
-36,
-20,
50,
-49,
21,
-12,
-17,
-32,
-7,
44,
18,
-50,
-50,
-25,
-4,
-3,
-17,
-28,
0,
-3,
-20,
0,
-38,
37,
18,
34,
-23,
4,
-33,
61,
-24,
5,
-33,
33,
-17,
1,
46,
-25,
-11,
-12,
11,
2,
-30,
18,
-4,
-3,
-45,
-16,
14,
-12,
-15,
-19,
14,
-3,
0,
-45,
-7,
-11,
34,
33,
20,
50,
41,
1,
45,
-25,
-14,
37,
-17,
7,
-49,
-7,
-35,
3,
14,
10,
16,
16,
-12,
0,
9,
4,
34,
6,
-33,
-37,
-38,
-14,
12,
-30,
31,
11,
-35,
-53,
-43,
1,
27,
-17,
-36,
-35,
12,
-41,
11,
-62,
58,
19,
19,
-62,
-48,
-9,
18,
-1,
-8,
-11,
17,
13,
-42,
17,
8,
-26,
-4,
9,
27,
51,
60,
-42,
21,
-1,
6,
-6,
-33,
10,
-7,
-7,
2,
-1,
6,
44,
-52,
23,
15,
11,
-47,
30,
1,
24,
-12,
27,
-1,
-34,
41,
12,
-2,
58,
11,
11,
-11,
22,
-5,
47,
-32,
3,
-24,
40,
-29,
0,
-10,
18,
9,
9,
8,
-10,
3,
48,
22,
0,
-10,
58,
13,
-65,
8,
-4,
8,
11,
-12,
18,
-9,
-37,
-16,
-47,
9,
-56,
-51,
21,
-28,
-25,
-3,
15,
-5,
19,
-17,
-16,
3,
42,
16,
-8,
-18,
-25,
18,
-49,
43,
-57,
-14,
-1,
-24,
17,
20,
11,
60,
-10,
-30,
20,
0,
-20,
-18,
2,
5,
5,
-1,
22,
39,
3,
-4,
25,
-20,
36,
40,
-5,
14,
22,
-21,
-52,
1,
-27,
19,
3,
13,
-38,
16,
-4,
-8,
31,
-53,
-25,
11,
16,
10,
14,
-72,
-33,
34,
14,
-16,
-2,
11,
2,
18,
0,
2,
-6,
-9,
-4,
24,
-12,
-1,
36,
-12,
-13,
-54,
34,
-33,
68,
23,
57,
17,
-2,
39,
-27,
41,
-35,
-6,
-35,
19,
60,
74,
8,
34,
23,
6,
-18,
-39,
-65,
-69,
16,
34,
9,
-60,
29,
-41,
-39,
-34,
-64,
42,
-19,
39,
-30,
22,
6,
35,
12,
13,
56,
-5,
-4,
49,
-3,
-31,
-17,
14,
2,
-77,
53,
-29,
-22,
29,
33,
14,
10,
-23,
-29,
6,
-26,
23,
-34,
12,
-19,
-25,
-18,
-23,
19,
38,
44,
6,
-28,
-26,
-15,
5,
16,
8,
-13,
-16,
-1,
-6,
32,
-15,
-3,
22,
-13,
-43,
27,
-2,
4,
-11,
15,
15,
20,
-62,
21,
-15,
-24,
7,
6,
-14,
-30,
12,
89,
-31,
-18,
-16,
7,
9,
5,
13,
1,
-23,
23,
0,
4,
17,
3,
12,
-2,
14,
-50,
12,
13,
0,
12,
-6,
-4,
11,
-24,
-9,
-9,
-24,
38,
45,
60,
-31,
20,
-49,
-1,
-39,
-22,
-16,
-66,
15,
-8,
20,
-29,
11,
-20,
12,
-4,
-5,
-18,
-23,
-19,
11,
26,
-3,
-61,
3,
26,
33,
13,
0,
-8,
-10,
46,
4,
-9,
57,
40,
-30,
-93,
24,
-50,
34,
-17,
-2,
-1,
30,
18,
-58,
-22,
19,
42,
-46,
4,
-1,
-30,
-16,
-19,
-18,
0,
-2,
7,
-33,
-21,
60,
-31,
-19,
14,
-8,
-25,
1,
54,
0,
9,
9,
-38,
89,
-54,
-2,
64,
-34,
4,
69,
39,
-31,
-8,
43,
-11,
-17,
-7,
87,
0,
-43,
-15,
1,
6,
12,
51,
32,
-45,
-12,
-50,
33,
55,
15,
-4,
-34,
15,
84,
36,
-17,
7,
66,
-18,
-2,
-29,
23,
-1,
-11,
19,
16,
45,
48,
34,
-18,
16,
52,
24,
-65,
-13,
-37,
-38,
9,
17,
-1,
29,
-17,
-33,
-64,
-32,
-1,
-51,
53,
7,
-12,
8,
31,
-58,
10,
-57,
2,
-31,
-28,
0,
21,
8,
-18,
16,
12,
21,
-38,
-53,
-21,
68,
-67,
11,
-25,
10,
-16,
28,
-34,
-37,
-14,
-13,
26,
-26,
54,
50,
1,
-11,
18,
-12,
19,
5,
60,
41,
34,
-9,
-56,
-10,
32,
32,
-25,
32,
36,
-39,
12,
30,
14,
36,
51,
50,
-32,
-20,
-3,
16,
25,
-16,
25,
-19,
5,
-23,
-49,
56,
17,
34,
-41
] |
Per Curiam.
The relators ask for a writ of certiorari to review the action of the circuit court denying the writ of mandamus to compel the respondent to consent to the proposed route.of their road through the township of Bridgeport. The reason given by the respondent for refusing his consent is his nonapproval of the route through the township. The circuit court refused the writ. The statute provides that street-railway companies may extend their roads through townships by the consent of the supervisor and highway commissioner, and the statute confers upon them the power to consent to regulations in reference to the construction, location, and operation of the portion of the road in the township. 1 How. Stat. § 3530. The power to locate the road is by this statute lodged in these township officials, and courts have not the power to review their action.
The writ is denied. | [
68,
-7,
20,
-20,
-10,
48,
-1,
41,
-5,
40,
15,
-23,
30,
1,
6,
8,
58,
17,
35,
1,
-12,
11,
54,
3,
-60,
-13,
45,
42,
-44,
40,
0,
-37,
-40,
34,
-26,
-15,
46,
-12,
54,
-4,
-36,
16,
-49,
-35,
-25,
-34,
0,
-1,
-27,
-32,
-16,
45,
-15,
25,
-27,
7,
-11,
-53,
-38,
-37,
-34,
27,
17,
22,
-15,
19,
-15,
-7,
31,
-18,
-42,
8,
11,
-6,
75,
31,
11,
-16,
13,
-7,
-30,
28,
26,
25,
-10,
11,
-30,
-8,
-14,
-8,
51,
-78,
-56,
8,
20,
86,
-37,
-51,
19,
-20,
-30,
74,
38,
-42,
1,
11,
15,
4,
13,
3,
5,
-45,
-14,
-90,
-2,
-4,
-14,
-13,
50,
-42,
-1,
-52,
11,
19,
-15,
-3,
31,
-33,
-50,
11,
18,
12,
38,
52,
30,
-21,
-9,
2,
17,
-6,
9,
28,
46,
15,
31,
-70,
-34,
15,
-61,
-4,
40,
-6,
-12,
-34,
5,
34,
59,
-31,
64,
20,
14,
79,
-58,
10,
-36,
6,
-37,
11,
-37,
37,
-10,
11,
2,
-43,
7,
-55,
8,
74,
9,
30,
-13,
35,
23,
25,
-23,
13,
0,
-3,
0,
-81,
9,
10,
63,
-28,
45,
68,
-2,
-4,
-33,
-13,
-34,
-3,
1,
11,
-43,
-64,
-38,
-16,
-25,
23,
-6,
15,
-29,
27,
24,
-24,
80,
-17,
47,
34,
54,
4,
56,
-17,
-23,
12,
-25,
-22,
-53,
-4,
26,
-4,
19,
31,
7,
10,
46,
-11,
26,
21,
-6,
74,
-21,
-11,
-17,
31,
4,
6,
32,
5,
-7,
-33,
-14,
-54,
-15,
5,
-37,
35,
35,
-75,
62,
74,
11,
-9,
-6,
-36,
4,
18,
-26,
-15,
-28,
35,
-4,
-20,
-37,
11,
34,
-5,
-9,
11,
6,
-41,
-17,
48,
-15,
52,
-41,
-15,
17,
25,
13,
-13,
-53,
63,
-30,
9,
19,
-22,
-37,
-30,
35,
0,
3,
36,
47,
-11,
4,
-7,
60,
-22,
42,
0,
3,
33,
1,
46,
27,
-29,
-25,
-58,
-9,
-9,
2,
-9,
-14,
46,
15,
-7,
-15,
5,
54,
25,
53,
40,
22,
11,
-17,
-25,
-16,
-3,
20,
37,
7,
49,
-11,
-3,
-24,
-31,
-2,
3,
-33,
-57,
-8,
-39,
0,
-23,
-38,
-57,
-12,
19,
25,
6,
-29,
-38,
19,
-24,
-1,
0,
31,
23,
47,
-26,
16,
20,
-7,
-33,
22,
20,
-22,
14,
-45,
-25,
11,
13,
56,
33,
-29,
-1,
-34,
-45,
8,
-61,
11,
24,
-20,
-5,
22,
57,
27,
5,
-32,
-18,
-43,
70,
17,
11,
25,
50,
10,
26,
-29,
7,
22,
3,
-18,
-2,
47,
-11,
20,
-20,
-47,
-18,
-21,
-16,
2,
-34,
-41,
-10,
4,
56,
-15,
-55,
27,
-14,
-23,
-6,
41,
-74,
-14,
-35,
-50,
-20,
25,
19,
-39,
-33,
-33,
2,
-65,
-21,
-2,
53,
-63,
-32,
-21,
0,
-44,
71,
34,
-47,
23,
-22,
-6,
-22,
15,
5,
-30,
0,
38,
-5,
-28,
50,
-43,
62,
-55,
-31,
15,
16,
-3,
10,
-22,
0,
-64,
-17,
15,
-16,
5,
29,
33,
28,
11,
10,
30,
36,
78,
-4,
-20,
-29,
19,
41,
52,
33,
-34,
9,
-11,
16,
-35,
61,
-22,
0,
18,
-4,
21,
2,
2,
52,
-13,
-22,
0,
-13,
27,
-15,
4,
-47,
8,
18,
-24,
-39,
-26,
0,
18,
-63,
-22,
-54,
-16,
-29,
-4,
6,
-6,
16,
30,
51,
-44,
-12,
-6,
28,
-15,
7,
2,
2,
-44,
6,
21,
-29,
-23,
-50,
1,
-46,
15,
20,
-36,
-24,
49,
5,
-3,
27,
-17,
23,
9,
15,
-13,
20,
-3,
-11,
1,
0,
4,
-23,
18,
-16,
3,
-30,
-16,
-36,
5,
-24,
-31,
-33,
-15,
-17,
-62,
1,
27,
-73,
15,
12,
-18,
22,
6,
24,
22,
-11,
-11,
25,
3,
5,
-15,
-24,
-15,
-24,
-11,
-4,
-27,
33,
-32,
22,
-33,
-10,
43,
7,
-8,
33,
-24,
-24,
-14,
-26,
27,
9,
0,
27,
-20,
64,
20,
22,
18,
-30,
-16,
-3,
15,
0,
-14,
19,
-25,
-58,
24,
-23,
9,
79,
-12,
32,
-36,
54,
18,
-27,
48,
22,
30,
2,
-6,
10,
27,
-41,
-3,
-16,
-10,
13,
-27,
24,
44,
7,
-23,
22,
31,
-31,
-12,
-68,
16,
17,
30,
28,
-24,
-7,
1,
-29,
8,
-18,
7,
32,
-28,
18,
-29,
-42,
13,
11,
27,
-9,
-35,
35,
-32,
18,
1,
12,
-4,
52,
-25,
36,
24,
3,
-7,
-14,
-55,
-17,
-16,
3,
12,
-17,
10,
39,
65,
9,
51,
-40,
-83,
11,
-33,
26,
-12,
-64,
-11,
17,
7,
12,
9,
-45,
8,
-7,
25,
-41,
16,
-48,
2,
-28,
-7,
-1,
0,
-17,
4,
-13,
-48,
48,
18,
7,
-16,
36,
36,
-29,
2,
-48,
38,
2,
-1,
-23,
-18,
-36,
-20,
1,
-10,
15,
-27,
58,
8,
-1,
12,
-33,
20,
-7,
-22,
2,
27,
-21,
-56,
-8,
-7,
22,
14,
-19,
-36,
-27,
26,
-20,
35,
18,
-34,
26,
28,
20,
35,
-3,
35,
-5,
28,
31,
-22,
17,
-11,
-32,
-76,
28,
34,
43,
19,
19,
-42,
28,
15,
10,
32,
27,
-3,
-13,
14,
0,
5,
3,
-27,
14,
25,
-5,
25,
18,
60,
-13,
22,
-12,
-14,
-32,
26,
8,
33,
18,
14,
-24,
-3,
-44,
-3,
-8,
-26,
-10,
38,
74,
-29,
46,
-21,
-35,
18,
-17,
-6,
-20,
-12,
-9,
45,
67,
-46,
-58,
-7,
-61,
-42,
-56,
47,
-1,
6,
0,
10,
-27,
44,
-13,
-8,
-54,
-4,
-2,
-29,
0,
86,
-12,
-5,
-54,
-38,
19,
7,
39,
30,
1,
9,
43,
9,
-34,
-61,
-27,
-30,
23,
11,
-7,
25,
2,
0,
18,
36,
0,
-2,
65,
-11,
-41,
-35,
-41,
-23,
-31,
-7,
-18,
-33,
12,
56,
51,
-27,
-12,
-33,
-21,
-25,
8,
7,
-19,
23,
-51,
-21,
-22,
37,
-35,
51,
-29,
3,
-29,
43,
2,
-67,
1,
-21,
0,
-54,
6,
29,
-3,
-19,
-30,
-2,
-14,
-35,
-8,
-47,
-3,
-34,
14,
9,
50,
45,
-10,
-41,
-23,
-12,
-6,
7,
45,
-29,
42,
-8,
17,
-34,
0,
-12,
-8,
-4,
19,
-1,
-48,
47,
25,
-35,
-13,
15,
0,
-7,
-46,
-29,
0,
-17,
-49,
45,
8,
-38,
28,
17,
23,
28,
-5,
8,
-15,
23,
9,
15,
-6,
-4,
-19,
6,
64,
62,
6,
51,
-18,
-15,
-46,
24,
-10,
18,
-47,
-33,
4
] |
Long, J.
This action is brought to recover damages for an injury received on a defective sidewalk. It appears, without contradiction, that the plaintiff, who resides in the city of Detroit, on the evening of May 35, 1895, between dusk and darkness, was passing eastward over the sidewalk on the south side of Hancock avenue, in company with a boy named Eipper. When they reached a point between Fourth and Crawford avenues, opposite and a little to the west of the house of Mr. Duncan, which is on the north side of the street, plaintiff’s feet became entangled under ¿loose plank in the walk, and he was thrown to the ground, sustaining severe injuries. When assisted by another person to rise, they found the plank over which he had fallen out of place, and lying diagonally across the walk. On a trial the plaintiff had verdict and judgment.
The only question raised by this record is whether there was any evidence that the walk at this particular place .had been out of repair for such a length of time that it was the duty of the city to have known it. There was no claim that the city had actual notice of its defective condition.
The court charged the jury as follows:
“I am requested by defendant to charge you that 48 hours would not be sufficient, and I say to you that it would not be sufficient. I am requested by plaintiff’s counsel to charge you that two months would be sufficient, and I charge you that it would be sufficient.”
The court thereupon further instructed the jury that, if they found that the walk had been out of repair for a sufficient time to amount to constructive notice of its condition, the verdict should be for plaintiff.
Inasmuch as the contention is that there was no evidence to warrant this charge, we shall cite some of the testimony given. Mrs. Josephine B. Cole testified, in be half of plaintiff, that she—
“ Used to pass over the walk three or four times a week before the injury to Mr. Rodda, and knew the condition of the sidewalk on the south side of Hancock avenue, at the point in question.
“Q. Why were they unsafe ?
“A. Because they were loose.
UQ. How do you know they were loose ?
“A. Because, in walking over them when a person was walking with you, you had to be careful that you didn’t step on the other end of the board and throw you down. If they stepped on the board as you went to, the board would rise up and throw you over. * * *
“Q. How long a time before you heard of Mr. Rodda’s accident had that walk been in that condition, to. your knowledge ?
“A. I had been going over it more or less all the spring. I should judge it might have been loose in April. I could not remember, indeed. * * * It had all the spring, as far as I can remember in my walking back and forth there; I think it was loose. * * *
“Q. Where was this walk with reference to Mr. Duncan’s house ?
. “A. Across the road from it.
“ Q. I mean this bad place in the walk ?
“A. I think, if I remember rightly, Mr. Duncan’s house is on the alley, and on the north side of the street, and this walk starts from the alley up on the south side.”
Mrs. Florence Robinson testified in behalf of plaintiff that she knew about the walk at the point where plaintiff was injured.
“ Q. What was the condition of the walk at the place about 50 or 60 feet west of the alley between Fourth and Crawford, on Hancock avenue, on the southerly side?
“A. In very bad condition.
“ Q. How do you know ? •
“A. Because I walked over that walk very frequently, going through to Woodward-avenue cars, and going through evenings to a class that I had on Second avenue in the winter. * * *
“ Q. How far from the alley were the boards loose?
“A. I should judge from 50 to 60 feet.
“ Q. In the place that has been described here in the evidence ?
“A. Yes, sir.
“ Q. How do you know the boards were loose ?
“A. I walked over them so many times that I know. I stubbed my toe frequently. I had my class right there in February and March down on Second avenue, and I walked over that way, and it was in bad condition then, and also all along in the spring.
“ Q. Right up to the time he was hurt ?
“A. Yes, sir. * * *
“ Q. Do you know where Mr. Duncan lived?
“A. Yes, sir.
“ Q. Where were the loose planks in this walk with reference to his house ?
“A. Across the street, a little to the west.”
Mrs. Laura Deacon, called by plaintiff, testified:
“ Q. Did you know in May, 1895, about the walk opposite Mr. Duncan’s house ?
“A. I don’t know that I knew of it at that particular time, but I had known it before.
“ Q. You know the walk?
“A. Yes, sir; perfectly. * * *
“ Q. You say you knew the walk before he was hurt ?
“A. Yes, sir.
“ Q. During what period, particularly?
“A. The spring before that.
“ Q. Was there anything special?
líA. I used to go through that block to church every Sunday and frequently. I would pass over the walk when it would teeter, and the boards would be loose, and I would step in and out to avoid being tripped on them, and the water would flush between the boards many times in the spring when it was breaking up; and I remember one time * * * I was with a lady, and we noticed the whole of one section of the sleepers was decayed so that the nails would not adhere to them. * '* * The boards were loose because the stringers were decayed.
“ Q. How do you know that?
“A. Because I examined them in one section.
“ Q. How did you come to do that?
“A. Because they were loose, and I had had notice to mend my own walk.”
The testimony of these witnesses had reference to the walk at the exact locality where the plaintiff was injured, and its defective condition covers a period of time sufficient that the city must be presumed to have had notice of the fact and have had time to repair. The question was properly submitted to the jury.
Counsel for defendant, however, contends that this testimony had reference only to the general bad condition of the walk, and was not confined to the existence of the defect complained of. This contention, we think, is not borne out by the evidence. The particular place described in the declaration was at a point in the south sidewalk opposite and a little west of Mr. Duncan’s house, and it is also described as being about 50 or 60 feet west of the alley. The witnesses refer to this particular place as the place where the walk was in bad condition. Under the declaration, however, the plaintiff had a. right, as bearing upon the question of notice, to show the general bad- condition of the walk in front of the premises described. Campbell v. City of Kalamazoo, 80 Mich. 660.
We find no error in the record. The judgment must be affirmed.
The other Justices concurred. | [
-43,
53,
-5,
17,
-12,
4,
8,
-6,
36,
-2,
-9,
14,
16,
-48,
-28,
-13,
-22,
0,
-10,
8,
-1,
-21,
16,
-16,
-14,
16,
23,
-28,
5,
47,
57,
17,
22,
52,
-12,
37,
62,
-2,
46,
19,
31,
22,
-11,
-37,
8,
19,
12,
-21,
27,
-20,
-28,
38,
18,
-27,
3,
-40,
-37,
83,
-4,
-12,
-4,
4,
17,
-64,
8,
-22,
8,
10,
10,
-5,
-46,
54,
43,
-32,
-6,
46,
-28,
0,
-47,
13,
-40,
-18,
20,
-29,
25,
-25,
-33,
-20,
-3,
-14,
0,
2,
45,
15,
-19,
24,
-15,
14,
1,
25,
-6,
20,
-32,
4,
-21,
-28,
-17,
-64,
-71,
51,
-16,
26,
27,
55,
-1,
-44,
51,
8,
-21,
17,
39,
-15,
-10,
-3,
-26,
18,
-11,
-23,
34,
-8,
0,
17,
-2,
20,
-22,
22,
-19,
-2,
81,
17,
43,
9,
-30,
-43,
-21,
4,
-22,
44,
-32,
-19,
-45,
3,
24,
-44,
28,
0,
2,
-8,
78,
9,
24,
-36,
15,
-22,
9,
-14,
-43,
19,
36,
26,
32,
-2,
24,
-73,
14,
50,
30,
12,
-19,
-19,
12,
-2,
15,
-28,
-33,
-45,
-63,
-24,
8,
37,
40,
13,
-58,
-31,
-9,
30,
3,
-5,
16,
-6,
-11,
-49,
-57,
-11,
-8,
33,
18,
2,
42,
-21,
20,
25,
7,
-14,
12,
-20,
17,
-45,
-9,
-6,
-32,
18,
20,
-13,
15,
-11,
-4,
9,
-9,
3,
9,
27,
15,
-71,
28,
11,
-33,
-4,
5,
-26,
37,
47,
-13,
-11,
-4,
9,
-36,
-16,
13,
-7,
23,
-6,
-27,
-44,
-16,
1,
12,
-1,
-7,
-14,
25,
63,
-5,
-14,
74,
22,
31,
54,
-40,
7,
4,
11,
4,
24,
-52,
-45,
-32,
0,
25,
-12,
-34,
-63,
5,
3,
-18,
43,
-47,
35,
3,
-29,
26,
-32,
-13,
-3,
-11,
-3,
27,
7,
-14,
23,
-1,
31,
-32,
33,
-23,
53,
13,
8,
52,
8,
9,
18,
26,
-23,
14,
60,
5,
15,
53,
-17,
-26,
31,
-27,
6,
-19,
-34,
9,
-2,
-70,
-15,
41,
22,
-4,
30,
22,
12,
48,
-3,
-25,
-15,
-1,
43,
-3,
-3,
-22,
13,
-19,
-24,
43,
31,
-64,
-41,
12,
-31,
-28,
28,
-3,
0,
-32,
62,
49,
-15,
20,
1,
-19,
-49,
-25,
-11,
16,
34,
-28,
-26,
-11,
19,
-35,
-95,
4,
-34,
-12,
47,
17,
-24,
24,
26,
19,
-48,
-24,
-65,
-34,
-8,
-62,
12,
61,
9,
12,
11,
-13,
6,
-38,
2,
-15,
36,
68,
55,
-55,
5,
-27,
-34,
-10,
-10,
0,
15,
-7,
-39,
3,
10,
13,
4,
9,
-26,
50,
49,
48,
-34,
52,
-8,
29,
-1,
23,
-6,
12,
4,
12,
-20,
21,
-4,
11,
-29,
-52,
-24,
-46,
1,
-18,
-3,
24,
17,
-7,
15,
19,
-7,
30,
13,
15,
43,
8,
-1,
-20,
-17,
72,
-16,
70,
-38,
-27,
15,
15,
-16,
-37,
-9,
-4,
-1,
-13,
-34,
18,
-22,
-2,
-15,
-10,
10,
-45,
44,
-30,
20,
38,
49,
-17,
-25,
43,
-16,
-40,
-6,
79,
-18,
-12,
6,
24,
15,
-75,
20,
-13,
0,
-27,
-1,
-14,
-17,
4,
-53,
20,
28,
-3,
2,
-21,
-23,
-31,
9,
36,
8,
11,
-27,
14,
-42,
3,
-38,
-53,
15,
-10,
5,
42,
10,
-50,
-8,
32,
-39,
-29,
-21,
-19,
22,
-20,
21,
25,
-36,
-15,
45,
58,
8,
16,
-24,
33,
65,
49,
29,
50,
-14,
0,
17,
14,
-35,
19,
-48,
21,
3,
-16,
12,
30,
-6,
11,
16,
43,
-30,
17,
-27,
-37,
39,
37,
-30,
-81,
-9,
-23,
37,
-29,
-8,
-20,
-12,
-39,
-29,
-16,
25,
25,
-3,
-22,
26,
7,
1,
-1,
-35,
13,
-2,
-1,
40,
28,
-20,
19,
-36,
-29,
-2,
17,
-8,
-25,
-70,
54,
-7,
41,
-15,
-45,
10,
-18,
40,
-7,
28,
9,
47,
-6,
-25,
0,
41,
-20,
-8,
-34,
-20,
-103,
-22,
-14,
33,
2,
26,
-31,
-18,
59,
17,
0,
-5,
-22,
24,
15,
-14,
-42,
-6,
-71,
7,
-26,
-24,
-37,
35,
43,
-38,
-24,
-5,
0,
34,
-37,
8,
-22,
23,
-27,
4,
-40,
24,
2,
-35,
-3,
-2,
-4,
19,
6,
0,
-1,
-34,
-12,
35,
29,
10,
14,
-16,
38,
12,
0,
3,
-23,
5,
26,
-33,
-35,
2,
22,
16,
20,
80,
98,
-1,
33,
3,
-38,
27,
8,
48,
-26,
2,
-23,
23,
7,
-53,
28,
34,
-43,
10,
8,
34,
0,
-42,
-17,
1,
-4,
-7,
-5,
-62,
29,
-16,
11,
16,
1,
-31,
24,
-2,
-22,
-25,
-52,
-20,
-14,
24,
-5,
-63,
-3,
-9,
-3,
-22,
-59,
-26,
16,
-37,
-5,
-25,
22,
6,
34,
-46,
17,
-66,
-19,
-3,
-44,
0,
-8,
-27,
62,
-21,
-33,
-5,
10,
-17,
12,
-12,
-34,
40,
10,
-36,
5,
24,
31,
-10,
37,
-46,
-11,
45,
6,
0,
-9,
-9,
16,
4,
52,
24,
-16,
-13,
-32,
28,
-22,
10,
-19,
-13,
1,
-1,
-34,
6,
-4,
-34,
-12,
24,
-5,
48,
13,
9,
-16,
-32,
-29,
-26,
-45,
19,
4,
15,
15,
18,
7,
-5,
-1,
-64,
15,
-2,
-7,
-12,
22,
-28,
23,
-43,
4,
24,
15,
28,
-3,
22,
-7,
-24,
18,
13,
-28,
-3,
54,
-21,
-35,
-2,
-30,
-11,
10,
-6,
-18,
-50,
-33,
1,
9,
-7,
35,
5,
20,
8,
-44,
-46,
12,
3,
-21,
-43,
13,
0,
48,
39,
-17,
-28,
-4,
4,
-4,
-66,
27,
-6,
12,
-30,
2,
6,
-47,
-17,
-14,
-17,
11,
60,
-4,
26,
24,
27,
-66,
-31,
-40,
29,
77,
-12,
-17,
19,
33,
-6,
-11,
-25,
-6,
3,
-17,
-7,
18,
-42,
0,
-6,
23,
41,
-37,
47,
-33,
-10,
-36,
20,
-22,
2,
-51,
22,
-18,
9,
6,
56,
-44,
-21,
-23,
2,
40,
4,
4,
-89,
-22,
-28,
71,
9,
-7,
34,
-17,
-28,
16,
38,
2,
31,
21,
-17,
-21,
44,
-14,
-13,
-32,
-5,
-2,
15,
20,
-12,
8,
-8,
28,
42,
34,
-52,
-9,
-17,
-16,
-19,
18,
-5,
-7,
-1,
-16,
-37,
-34,
-32,
58,
-10,
-33,
0,
-12,
-7,
15,
-8,
-4,
-20,
-41,
-6,
46,
-12,
-13,
1,
-27,
14,
4,
4,
1,
22,
6,
20,
19,
-24,
64,
-3,
25,
-16,
-59,
32,
52,
39,
39,
45,
-5,
-8,
14,
-28,
67,
-34,
28,
36
] |
Moore, J.
Complainant filed a bill to foreclose a mortgage made by Mr. and Mrs. Pierce February 24, 1894, which mortgage was recorded March 14, 1895. A decree of foreclosure was rendered, in which there was found to be due $11,423.38. After the decree, complainant asked to have a receiver appointed. The application was denied.
The defendant the Charles P. Kellogg Company is a judgment creditor of Mr. Pierce, having an execution levy upon the property covered by the mortgage. It- defends against the mortgage upon the ground that, previous to extending credit to Mr. Pierce, it inquired of the complainant bank about his standing, and was wrongfully advised by it that Mr. Pierce was of good standing and credit, and claimed to be worth $35,000 or $40,000, and, relying upon such representation, it extended credit to Mr. Pierce. It is also the claim of this company that it was the duty of complainant to advise it of the mortgage it held, but, instead of doing so, it concealed the fact that it had such a mortgage, and the mortgage was in fact, and in legal effect, put to a fraudulent use, and should, in equity, be postponed to the execution levy of the defendant company. The defendant Chamberlain is- the sister of Mrs. Pierce. She was the possessor, by inheritance, of some property, which was managed many years by Mr. Pierce. He was indebted to her for nearly $9,000 at the time the mortgage was made. At about the time of his failure, Mr. and Mrs. Pierce deeded the property covered by the mortgage to Miss Chamberlain, who defends against the mortgage, diaiming that, during the time the mortgage was not of record, she was ignorant of its existence, and that, if she had known of it, she would not have intrusted Mr. Pierce so implicitly as she did, but would have secured her indebtedness before the failure of Mr. Pierce made it too late to do sq. She also claims that the inchoate dower interest of Mrs. Pierce is not conveyed by the mortgage, and that, by virtue of the deed to her, she succeeds to it, and it should not have been covered by the decree. The decree was dated July 27, 1897, and authorized a sale of the premises any time after August 28, 1897, if the amount due was not paid. It is the claim of Miss Chamberlain that the time in which to redeem was too short. It is also claimed by her that, because of the interest clause in the mortgage, it was usurious. The complainant and Miss Chamberlain and the Charles P. Kellogg Company have all appealed, — the complainant, from the order of.the court refusing to appoint a receiver; and the others, from the decree.
It is urged that the bank was not authorized, under the national bank act, to extend credit based upon security upon real estate, and that the credit to Mr. Pierce was based upon the mortgage sought tp be foreclosed, and for that reason the mortgage is void. The testimony in relation to the circumstances under which the mortgage was given, and the time when it was to take effect, is conflicting; but, conceding that the credit was extended because of the security offered by the mortgage, it does not follow that the mortgage is void. If the bank, in taking this security, has violated any of the provisions of the banking act, — a question about which we do not express any opinion, — it may be a reason why the governmental authorities should interfere and forfeit the charter of the bank, but it does not invalidate the mortgage. The authorities are very clear upon this proposition. National Bank v. Matthews, 98 U. S. 621; Butterworth & Lowe v. Kritzer Milling Co., 115 Mich. 1.
In our view of the case, it does not become necessary to decide whether the mortgage became a present mort gage at the time of its execution, or whether it did not become a completed mortgage, by delivery, until the day when it was put upon record. It is very evident from the testimony that Miss Chamberlain was not influenced either one way or the other, in her dealings with her brother-in-law, by the withholding from the record of the mortgage. She had confidence in Mr. Pierce, and for more than 20 years she allowed him to manage and use her money, without questioning his ability and willingness to take care of her interests. The deed which she accepted, and through which she holds title, is a warranty deed, except as to two mortgages, one of which is the one involved in this litigation. We do not mean to intimate that this mention of the mortgages in the deed estops Miss Chamberlain from contesting their validity, but, taken in connection with the entire proceedings between her and Mr. Pierce, it shows that she relied wholly upon him to take care of her interests.
As to the effect of the withholding of this mortgage from the record upon the claim of the Charles P. Kellogg Company, they do not base their claim to relief, in their cross-bill, upon the fact that the mortgage was void against them as subsequent creditors. The ground for relief stated by them is that Mr. Pierce desired credit; that, before extending it to him, they inquired of the complainant about his financial condition, and-
“ Asked it to state fully all his circumstances; and complainant, about March 2, 1894, wrongfully advised this defendant that said E. S. Pierce was of good standing and credit, and claimed to be worth $35,000 to $40,000; that defendant believed and relied upon said representation, as complainant intended it should, and sold and delivered said Pierce, on credit, goods to the amount and value of $799.50; that it was the duty of complainant to disclose said mortgage, but it concealed the same from the defendant, and defendant did not know of the same until after said credit was extended.”
It is important to ascertain from the record whether the allegation of the cross-bill is sustained by the proof. The inquiry made of the bank was as follows:
“Charles P. Kellogg Company.
“Chicago, March 1, 1894.
“Dear Sir: E. S. Pierce, Grand Éapids, Michigan:' We would thank you for any information that will enable us to form a correct opinion of capital, character, promptness, responsibility, etc.
“Your reply herein will be considered strictly confidential.
“Yours truly,
“Charles P. Kellogg Company.”
The above was all printed. It was addressed to the complainant bank. On the same piece of paper the cashier of the bank wrote as follows: “He is of good standing and credit, and claims to be worth $35,000 to $40,000.” The credit man of the Charles P. Kellogg Company did not content himself with this reply, but consulted Bradstreet’s report, which gave the business history of Mr. Pierce; and, among other things, it stated, “We are informed that he claims to be worth $35,000, net, at the present time.” Then followed a statement of his property, and the report continued, “He is not supposed to have much ready means, and we are informed that at least part of the capital which he will use in this business will be borrowed.” And the report spoke well of him personally, and of his reputation. R. G. Dun & Co.’s report was also consulted. This report was a detailed one, and, among other things, said, “It is not believed that he requires any further introduction to the trade, and is held safe for his business engagements, upon an estimated worth of from $30,000 to $35,000 clear.” A printed inquiry like the one sent to complainant was addressed to four other banks at Grand Rapids. One of them replied: “We cannot speak too highly of Col. Pierce’s character and promptness. We cannot give you reliable information as to capital, but consider you may rely on the representations he makes.” The National City Bank replied, among other things: “On inquiry, I learn that Mr. E. S. Pierce is regarded worth about $30,000. He stands well as to character.” Inquiries were also addressed to the lawyers of the defendant, one of whom replied, under date of March 3d, saying, among other things: “He is probably worth $25,000. He has a good reputation, has always paid his debts, has a good credit, and we think he is a good business risk at present. * * * However, we’ think he will be able to meet his obligations for a time.” The other one, under date of March 10th, wrote defendant, among other things: “I should advise, in giving credit, to ask for a personal statement from Mr. Pierce.” Inquiry was also made of the Michigan Trust Company. The inquiry sent to the complainant was the same as the one sent to the others. After receiving these answers, in the spring of 1894, goods were shipped to Mr., Pierce, all of which were subsequently paid for. With the exception of a bill of goods valued at $42, shipped August 1, 1894, upon a credit of four months from December 1, 1894, all of the goods embraced in the judgment were sold after October 20, 1894. A large proportion of them were sold as late as March, 1895. There was nothing in the inquiry addressed to the complainant which made it incumbent upon it to send a reply; but, as a matter of courtesy, it did the same as the other banks, — it sent a reply. There is nothing in the record to show that its reply was not according to the fact, or that it was intended to deceive. To hold a bank liable for replying to an inquiry under the circumstances shown by this record would make it exceedingly hazardous for it to reply to any such inquiries, and would not be in accordance with any principle of law to which our attention has been called. See First Nat. Bank v. Marshall & I. Bank, 108 Mich. 114, and the many cases there cited; Potts v. Chapin, 133 Mass. 276.
It is the claim of defendant Chamberlain that there was no such delivery of the mortgage as- to make it a valid mortgage as to Mrs. Pierce, and that her dower interest was not conveyed. The record discloses that the mortgage was executed by both Mr. and Mrs. Pierce. According to one theory of the case, it was then delivered, so as to become a present mortgage. According to the other theory, it was to be delivered and put upon record when Mr. Pierce consented that it should be done. Mr. Pierce gave his consent to its delivery and recording. Which-, ever theory is adopted, we think it clear that Mrs.' Pierce consented to the delivery of the mortgage, and that by her joining in the execution of it, and its subsequent authorized delivery, her inchoate dower right was alienated.
The mortgage contained a provision that deferred installments of interest should become principal, and draw interest at 10 per cent. It is claimed that this provision made it a usurious contract, and that payment of interest upon such a contract cannot be enforced; counsel citing Act No. 156, Pub. Acts 1891. An inspection of the original mortgage shows it to have been drawn upon a printed blank, in which, wherever the rate of interest is mentioned, it is described as being at the rate of 10 per cent. In all other portions of the mortgage, except the clause referred to, the printed word “ten” was stricken out, and the figure “7” was written in. The scrivener swears that the failure to make the change in the interest clause was a clerical error; that the agreement was for interest at 7 per cent.; and that, to carry out the intention of the parties, the word “ten” should have been, and was intended to be, stricken out, and the figure “ 7 ” written in the place of it. We think this was such a mistake as could be corrected in this proceeding. The court below figured interest at the rate of 7 per cent., and in doing so, we think, carried into effect the intention of the parties to the mortgage.
It is said that the court did not allow a reasonable time in which to redeem, and counsel cite Detroit Savings Bank v. Truesdail, 38 Mich. 430. In that case the decree provided that the amount due, $110,000, should be payable forthwith. In this case the amount secured by the mortgage was all due im September, 1895. This case was commenced in October, 1895. The decree was not taken until July, 1897. Under these circumstances, we cannot say that the time given in the decree in which to redeem was unreasonable.
On the part of the complainant, it is urged that the court erred in refusing to appoint a receiver. It is said that Miss Chamberlain does not intend to pay the incumbrances upon the property, and that she should not be entitled to the rents and profits. Counsel cite Belding v. Meloche, 113 Mich. 223. This case was a foreclosure of a land contract, wherein it was agreed that, in case of a default, the. grantor should be entitled to possession. It is shown by the opinion that a different conclusion would have been reached had it been a proceeding to foreclose a mortgage. See 2 How. Stat. § 7847; Wagar v. Stone, 36 Mich. 364.
We think the decree of the court below should be affirmed. As all the parties in this court are appellants, no costs will be allowed.
The other Justices concurred. | [
5,
57,
-6,
27,
-25,
20,
38,
-5,
37,
-51,
7,
6,
0,
40,
-7,
-2,
13,
1,
21,
-14,
-16,
-18,
-35,
-12,
-25,
-17,
-26,
-70,
-19,
-8,
14,
-39,
-34,
34,
-31,
-61,
49,
-1,
46,
-11,
-11,
53,
-7,
-11,
-11,
4,
11,
-25,
6,
-34,
-3,
-26,
49,
-18,
-8,
-10,
0,
11,
-24,
-36,
-1,
-30,
46,
15,
-42,
-14,
-9,
6,
7,
5,
11,
-32,
10,
-14,
-31,
-31,
-6,
-29,
-65,
-60,
-24,
-51,
33,
-4,
-16,
16,
-5,
20,
-17,
58,
-43,
26,
-15,
45,
2,
20,
-2,
42,
31,
42,
3,
0,
-30,
33,
26,
31,
-13,
-101,
-18,
48,
-52,
10,
21,
5,
-57,
-22,
-24,
35,
50,
-56,
-18,
-4,
-10,
-48,
38,
31,
-25,
-25,
2,
2,
-21,
-20,
-45,
15,
-19,
-28,
-13,
-52,
38,
-10,
46,
-6,
-24,
-54,
-37,
-20,
12,
-2,
8,
-3,
-19,
-10,
4,
25,
6,
-9,
16,
-20,
5,
-41,
37,
-50,
15,
-7,
-49,
-8,
-48,
35,
-15,
-16,
26,
54,
-69,
-31,
-45,
-39,
9,
-24,
0,
-36,
-24,
2,
-10,
9,
42,
-9,
13,
2,
37,
52,
2,
-22,
-49,
21,
-46,
9,
29,
-63,
47,
-9,
7,
23,
6,
-26,
26,
-31,
34,
0,
-12,
24,
1,
-17,
-17,
3,
-51,
32,
1,
33,
6,
6,
8,
35,
-63,
49,
-60,
-64,
-16,
-13,
33,
26,
-36,
6,
-55,
20,
-4,
52,
21,
2,
-9,
16,
-34,
33,
12,
12,
-42,
4,
-36,
-6,
-38,
-28,
-50,
45,
10,
78,
-22,
-8,
-49,
0,
46,
-13,
31,
22,
-52,
-2,
40,
-47,
25,
-3,
4,
29,
-18,
-22,
85,
20,
3,
-23,
-26,
23,
-49,
-15,
4,
16,
-25,
21,
-1,
6,
54,
-3,
-3,
-4,
23,
-48,
22,
-14,
68,
-9,
-33,
-40,
28,
-28,
-6,
-38,
5,
-20,
14,
13,
7,
-17,
3,
-10,
-6,
-8,
-6,
-21,
35,
31,
11,
-24,
11,
-19,
43,
26,
-31,
-10,
60,
65,
34,
-6,
-66,
38,
8,
-4,
18,
-17,
15,
33,
23,
-22,
-38,
31,
-21,
33,
-9,
19,
42,
-6,
0,
5,
-16,
56,
-39,
9,
-11,
29,
-4,
14,
11,
1,
-21,
49,
20,
-32,
-29,
4,
-14,
-5,
-1,
-41,
-2,
21,
29,
24,
-27,
-5,
-43,
-2,
-43,
11,
-18,
51,
-8,
-3,
3,
46,
20,
-24,
17,
10,
11,
14,
-72,
5,
23,
-10,
-3,
-27,
12,
-24,
-79,
-19,
-41,
7,
-18,
-31,
-38,
19,
-19,
-22,
-7,
41,
39,
8,
-4,
21,
-33,
24,
20,
-48,
33,
11,
-21,
-31,
-10,
-13,
10,
-17,
-13,
28,
-42,
-4,
-29,
34,
-6,
-34,
29,
-8,
-46,
-14,
-15,
44,
13,
50,
27,
17,
37,
2,
-36,
-12,
55,
-7,
-46,
-16,
23,
64,
4,
-13,
51,
4,
25,
-32,
36,
-5,
11,
-8,
-37,
20,
40,
-29,
-36,
11,
6,
-1,
33,
-10,
5,
9,
35,
2,
-39,
28,
-43,
-11,
38,
41,
-85,
-8,
-21,
-48,
-33,
0,
43,
1,
27,
0,
-16,
37,
0,
-53,
2,
19,
4,
23,
-7,
-1,
-5,
-50,
23,
-16,
22,
23,
-52,
-31,
-9,
59,
0,
44,
-4,
42,
10,
29,
6,
-13,
-27,
19,
-68,
36,
46,
73,
12,
0,
-38,
67,
-48,
4,
-59,
-8,
49,
3,
4,
21,
-78,
49,
33,
77,
7,
50,
9,
-21,
10,
-16,
47,
-47,
-13,
34,
-26,
22,
6,
16,
14,
25,
-9,
-10,
-9,
-52,
23,
-41,
19,
-31,
-53,
-13,
-35,
24,
-34,
-22,
26,
3,
2,
-22,
-26,
5,
-19,
-36,
-36,
-44,
31,
5,
0,
46,
-17,
26,
6,
-7,
-16,
-50,
17,
0,
-25,
0,
28,
14,
-30,
-4,
-22,
-53,
-33,
-48,
-15,
17,
11,
23,
8,
4,
35,
14,
43,
-5,
7,
-39,
-31,
-6,
-4,
24,
17,
-24,
-2,
26,
45,
-22,
-3,
21,
17,
5,
0,
25,
-24,
0,
37,
20,
-3,
-39,
0,
20,
-26,
-10,
13,
68,
-27,
-40,
55,
-43,
-4,
-9,
30,
-10,
57,
-53,
51,
-47,
2,
-10,
28,
-8,
13,
1,
19,
-40,
21,
46,
-11,
-9,
-8,
-39,
58,
-13,
4,
-15,
-3,
16,
-6,
-34,
60,
-15,
6,
18,
-5,
1,
10,
-10,
-19,
16,
0,
-60,
-54,
-27,
0,
-1,
32,
-5,
32,
0,
22,
-22,
13,
53,
0,
1,
-14,
11,
-7,
-14,
50,
-21,
28,
-18,
-14,
26,
57,
10,
-5,
-3,
1,
-65,
35,
-12,
-13,
-16,
24,
14,
-29,
29,
-11,
5,
-52,
27,
-27,
40,
21,
-23,
-13,
-22,
-16,
-15,
-28,
6,
42,
-40,
-10,
20,
23,
31,
20,
4,
-27,
-4,
68,
-35,
-19,
25,
15,
13,
-14,
5,
62,
-23,
11,
19,
41,
-56,
20,
-19,
-16,
-3,
-28,
9,
9,
-14,
72,
-7,
53,
-17,
-2,
-27,
-1,
-3,
28,
-41,
58,
24,
76,
27,
35,
1,
-50,
-5,
-60,
44,
-18,
-23,
-35,
-29,
14,
11,
-17,
29,
21,
21,
0,
10,
-1,
-4,
-11,
-62,
-2,
-48,
-44,
14,
-33,
19,
-41,
37,
-43,
35,
15,
19,
-10,
-2,
-28,
51,
-9,
22,
-7,
-31,
-17,
-4,
1,
0,
38,
52,
22,
24,
-48,
-33,
45,
-38,
9,
18,
-46,
39,
-25,
-21,
5,
-36,
23,
21,
-32,
-63,
-11,
12,
25,
-20,
37,
-18,
-40,
-16,
-24,
16,
-42,
13,
76,
-65,
5,
22,
-67,
29,
42,
-3,
39,
-13,
36,
-17,
20,
4,
-3,
45,
11,
39,
18,
-28,
17,
64,
-27,
-6,
7,
6,
-27,
0,
23,
-13,
-34,
7,
-16,
-27,
2,
-5,
18,
0,
3,
63,
-19,
4,
37,
-3,
-49,
-68,
-57,
53,
25,
-7,
-8,
22,
-29,
-29,
-41,
-4,
36,
28,
17,
13,
-4,
-12,
63,
28,
3,
45,
-32,
-10,
-34,
-28,
-3,
22,
23,
2,
0,
5,
-16,
-2,
13,
-31,
23,
16,
9,
10,
1,
37,
1,
11,
-33,
-30,
-34,
-32,
-21,
55,
24,
-29,
42,
10,
23,
22,
-1,
-49,
37,
-39,
-6,
-36,
-5,
30,
19,
12,
31,
29,
-2,
16,
-16,
68,
-46,
-9,
21,
-25,
-53,
-18,
35,
-9,
-19,
28,
-27,
-59,
-1,
19,
17,
-7,
3,
10,
65,
26,
19,
-23,
-13,
49,
5,
-15,
-21,
-17,
25,
9,
-13,
6,
-21,
11,
45,
-20,
18,
-16,
-11,
41
] |
Moore, J.
An information was filed against the respondent, the material part of which reads as follows:
“That heretofore, to wit, on the 3d day of April, A. D. 1893, and on divers other days and times between said 3d day of April, A. D. 1893, and the 1st day of April, A. D. 1894, at the township of Beaverton, in the said county of Gladwin and State of Michigan, one Howard Seeley, late of said Beaverton township, in said county of Glad-win, and he, the said Howard Seeley, being then and there, during all of said time, treasurer of said township of Beavei'ton, and the collector of taxes of said township, and a public officer in the said State of Michigan, did then and there knowingly and unlawfully appropriate to his own use nine hundred dollars, and of the value of nine hundred dollars, of the money of the said township of Beaverton, which said money had been collected by said Howard Seeley, and came into the possession of the said Howard Seeley, by reason of the said Howard Seeley’s official capacity, contrary to the form of the statute in such case made and provided,” etc.
The respondent declined to plead to this information, and a plea of not guilty was entered by the court. The respondent was convicted, and brings the case here on exceptions before sentence.
The record shows that from April, 1893, until April, 1894, Mr. Seeley was treasurer of the township of Beaver-ton. The records of the township show that [he received money as treasurer, and that he failed to turn over to his successor about $700. In December, 1894, Mr. Seeley proposed to the township board to settle with them by turning out the notes of several individuals, indorsed by him, which proposition was accepted. January 1, 1895, the notes were delivered, and a receipt given for them, signed by the supervisor.
On the trial the people gave in evidence a conversation had between Mr. Seeley’s successor and himself, which conversation was had after Mr. Seeley had ceased to be treasurer. This was objected to because Mr. Seeley was not then in office. We think it was competent, as an admission on the part of the respondent of a shortage in ■his accounts.
The respondent offered to show in his defense that, while the records show the respondent had collected a large amount of taxes, he did not in fact receive money for the taxes, but received saw-logs for them, and, upon receipt of the saw-logs, receipted the taxes as though they had been paid in cash. He also proposed to show that these logs were put into the river, and that the boom which held them in place went out, and the logs were lost, and the respondent became financially embarrassed, and for that reason could not reimburse the township. The court declined to allow this proof to be made. This is said to be error.
Section 1 of the statute under which this information is filed reads as follows:
“ That if any person holding any public office in this State, or if the agent or servant of such person, knowingly and unlawfully appropriates to his own use, or to the use of any other person, the money or property received by him in his official capacity or employment, of the value of fifty dollars or upwards, the person so offending shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the state prison, at hard labor, not to exceed ten years, or by fine not exceeding five thousand dollars, or both said fine and imprisonment.” 3 How. Stat. § 9263a.
Section 9263c of the act provides that a failure or refusal of any person holding public office to pay over and deliver to his successor all moneys and property which should be in his hands as such officer shall be prima facie evidence of an offense against the provisions of section 1 of this act.
It will be noticed that the offense charged is that the respondent knowingly and unlawfully appropriated to his own use $900 of the money of said township. If he never collected the money, is he guilty of its appropriation ? It is urged by the people that, when it is shown by the records that the respondent received money which he failed to pay over, the people have made their case; citing People v. Bringard, 39 Mich. 22 (33 Am. Rep. 344). This would doubtless make a prima facie case, under the statute; but a prima facie case may be rebutted. May not the respondent. show that the taxes were never in fact paid to him in money ? The township treasurer was not authorized by law to receive anything for. taxes except money. The taxpayer is bound to take notice of the law in that respect. The turning out of commodities to the treasurer will not pay the taxes, or discharge the taxpayer from the obligation to pay them. It is not competent for a township treasurer to receive saw-logs in payment of taxes, and bind the township by so doing. In the case of Turnbull v. Township of Alpena, 74 Mich. 621, the taxpayer paid his taxes, in part, by giving his note. The court said:
“ The note cannot be treated as a payment of this tax. The treasurer had no right or authority to take the note.of the plaintiff in payment of his taxes, and the defendant township could not be bound by such action. Taxes are due to the public, and not to the tax collector individually. Parties, in paying their taxes, are bound to know that the tax collector, though the agent of his township, has no authority, as such agent, to accept anything in payment of taxes to the public except money, such orders as are drawn upon him by the proper authorities, or orders that are properly receivable as taxes. His warrant directs him to collect from the persons named in the tax roll the amount of taxes chargeable to each person thereon, and directs how the moneys are to be applied and accounted for'by him. The rights and interests of the public are to be guarded and protected. The very existence of the government might be endangered if its public revenues could thus be bartered away by its tax gatherers. The giving of a note is not the payment of a tax.”
However culpable the acts of the respondent are, we do not think that by receiving logs for taxes he bound the township, and received money officially, so as to render him, by a failure to turn over the value of the logs to his successor, liable to conviction under the charge contained in the information. We think the court erred in not receiving this testimony. If, on the new trial, it is shown that he received money for the logs, he might be convicted of the offense charged.
The other errors assigned are either not well taken, or are not likely to occur again, and for that reason will not be discussed.
The case is reversed, and a new trial ordered
The other Justices concurred. | [
36,
37,
28,
22,
-33,
5,
0,
-26,
-5,
26,
30,
-41,
-3,
3,
-32,
-29,
1,
-13,
22,
-56,
-7,
-54,
24,
-39,
3,
0,
-14,
40,
-40,
-2,
17,
4,
-13,
3,
-26,
22,
-8,
-22,
16,
-38,
-60,
-12,
18,
-43,
-23,
33,
-27,
0,
-11,
-56,
55,
-35,
52,
-23,
45,
-54,
-14,
4,
10,
1,
0,
-7,
8,
6,
-6,
-70,
-2,
-15,
8,
28,
-39,
18,
28,
-12,
11,
-43,
-21,
15,
-17,
18,
-10,
-16,
5,
-4,
-20,
-24,
-4,
16,
-5,
16,
24,
39,
0,
31,
8,
-26,
-14,
39,
12,
-21,
17,
-11,
7,
8,
5,
-6,
-21,
-5,
-15,
51,
-64,
36,
41,
-28,
-22,
-24,
-11,
-21,
3,
-20,
-14,
-26,
20,
18,
16,
32,
-23,
9,
12,
10,
15,
17,
-60,
-18,
-37,
7,
14,
-27,
11,
0,
21,
6,
0,
-67,
-27,
20,
-14,
11,
32,
-10,
-78,
4,
44,
11,
-16,
-20,
17,
-34,
31,
-39,
1,
36,
0,
-24,
-31,
-11,
-16,
6,
14,
-12,
7,
28,
-33,
-13,
14,
-17,
18,
14,
14,
-10,
-2,
0,
0,
9,
-8,
-21,
17,
-14,
15,
-35,
53,
14,
-8,
-25,
36,
6,
-3,
-32,
36,
-21,
-31,
-54,
15,
30,
-3,
-2,
71,
-30,
-34,
25,
-11,
-26,
12,
-2,
-9,
38,
3,
-42,
31,
2,
4,
30,
2,
33,
-32,
-7,
8,
2,
-6,
-5,
-24,
0,
-13,
-22,
-9,
18,
21,
8,
3,
-6,
-93,
-36,
5,
3,
-13,
9,
-26,
-7,
-39,
43,
-10,
5,
-30,
-2,
-43,
-6,
-11,
-7,
-4,
-1,
-30,
52,
10,
21,
1,
-30,
16,
37,
-53,
-6,
8,
-17,
41,
-11,
-32,
-19,
1,
7,
-33,
-18,
24,
-65,
32,
48,
69,
25,
-42,
0,
14,
27,
0,
5,
24,
2,
53,
26,
22,
-31,
-9,
17,
-34,
41,
-44,
-8,
43,
16,
-4,
-58,
-59,
-7,
71,
-23,
-11,
47,
44,
-11,
-15,
-18,
24,
30,
2,
-9,
6,
-59,
4,
6,
23,
-3,
-22,
-27,
-17,
3,
-6,
17,
-37,
-1,
-15,
-1,
1,
-19,
10,
-2,
2,
34,
13,
32,
-37,
-37,
-38,
-75,
-9,
-7,
-20,
31,
12,
24,
12,
-15,
-8,
24,
20,
47,
-18,
-3,
1,
-22,
-50,
-17,
10,
21,
45,
-13,
-26,
3,
-9,
24,
-1,
-34,
-20,
28,
0,
-12,
1,
7,
6,
-22,
34,
-45,
-32,
13,
-5,
48,
2,
4,
2,
-66,
3,
22,
-57,
15,
19,
27,
11,
42,
-15,
-35,
4,
18,
36,
29,
36,
-7,
-5,
7,
14,
-68,
18,
-29,
41,
-3,
65,
60,
-58,
-14,
53,
6,
16,
36,
2,
1,
35,
27,
23,
-14,
30,
6,
-48,
14,
-13,
-60,
15,
6,
47,
37,
1,
-29,
-52,
0,
34,
9,
-58,
-30,
-37,
-17,
-6,
30,
50,
-23,
13,
-36,
-14,
-20,
3,
-39,
-9,
18,
2,
-26,
22,
54,
0,
21,
-27,
-12,
-42,
20,
52,
-27,
74,
26,
28,
5,
-36,
-23,
-84,
-62,
-35,
-40,
-50,
19,
27,
-7,
-26,
-8,
36,
57,
-24,
-25,
0,
23,
-11,
49,
53,
-19,
-17,
15,
52,
-36,
-13,
17,
-45,
-29,
0,
44,
-16,
18,
-11,
5,
3,
21,
-23,
19,
0,
26,
-10,
40,
36,
-9,
1,
-8,
29,
-13,
-31,
-17,
38,
-28,
19,
1,
-61,
-10,
22,
-2,
35,
10,
-27,
4,
-12,
-34,
44,
-10,
3,
13,
8,
7,
-9,
23,
4,
7,
4,
-5,
-45,
-34,
34,
-9,
44,
-14,
-31,
26,
-7,
-34,
20,
-39,
58,
11,
-11,
24,
-5,
-8,
16,
3,
-6,
-32,
-23,
-11,
-8,
31,
-4,
7,
-2,
-20,
-2,
3,
-8,
7,
-48,
10,
-29,
-7,
57,
-7,
3,
-24,
9,
-5,
24,
9,
-37,
-2,
-51,
-18,
39,
-3,
1,
15,
2,
23,
-65,
-39,
3,
10,
55,
35,
17,
-25,
39,
-7,
-31,
27,
-15,
-15,
1,
-24,
-8,
23,
-12,
11,
64,
33,
-40,
13,
18,
35,
-15,
-5,
46,
17,
-9,
26,
-13,
9,
-11,
-8,
29,
-6,
-28,
-34,
2,
-33,
56,
-28,
37,
-12,
0,
67,
17,
54,
19,
13,
19,
-29,
-3,
-57,
20,
-28,
2,
-94,
-21,
9,
-19,
3,
33,
16,
14,
2,
-7,
-15,
-38,
11,
-30,
11,
-4,
0,
-45,
56,
0,
-3,
29,
-44,
2,
6,
4,
-21,
4,
30,
-27,
-23,
12,
-7,
-21,
-3,
-42,
5,
18,
17,
-50,
8,
18,
15,
-34,
47,
-9,
-63,
27,
40,
18,
9,
49,
-35,
-56,
23,
37,
18,
-15,
0,
19,
40,
-10,
6,
-22,
22,
30,
9,
-55,
-8,
13,
6,
38,
-13,
-31,
39,
20,
-6,
-18,
59,
19,
8,
9,
27,
-18,
-8,
-28,
26,
-7,
-40,
-11,
8,
12,
-9,
2,
-19,
0,
21,
-60,
-4,
-15,
12,
-7,
-42,
47,
-14,
20,
16,
-61,
27,
13,
-54,
3,
17,
36,
22,
1,
-5,
6,
2,
-41,
55,
42,
0,
15,
7,
-31,
10,
30,
57,
-2,
26,
22,
32,
36,
69,
15,
75,
-18,
-54,
-30,
-34,
-16,
19,
-9,
-5,
0,
0,
-2,
-25,
-22,
34,
35,
8,
-34,
-24,
25,
1,
-46,
-13,
-3,
-4,
3,
-11,
-33,
24,
-5,
-22,
-15,
4,
27,
27,
0,
29,
-6,
2,
10,
-11,
-8,
-26,
-39,
3,
13,
3,
25,
-11,
23,
10,
-8,
2,
-14,
7,
25,
30,
22,
-7,
-32,
65,
-29,
1,
9,
16,
59,
-3,
-21,
-3,
-50,
13,
48,
-1,
21,
42,
27,
-31,
6,
2,
-55,
16,
3,
-36,
10,
-44,
-5,
-31,
0,
-12,
75,
12,
-5,
-27,
-23,
-5,
10,
-6,
1,
55,
-55,
-50,
13,
-29,
-84,
-41,
7,
1,
0,
5,
35,
-4,
-46,
82,
-29,
-15,
37,
-7,
-20,
-4,
-12,
5,
-25,
0,
-10,
9,
25,
-73,
52,
-2,
11,
-25,
0,
-18,
9,
6,
-11,
-26,
28,
21,
-10,
2,
-4,
75,
-33,
-39,
-49,
-38,
-3,
-24,
-3,
11,
15,
-24,
-56,
20,
-16,
-15,
29,
10,
-17,
-56,
-7,
-4,
24,
-49,
35,
-16,
41,
-26,
41,
14,
-33,
56,
36,
-32,
59,
-26,
-5,
-37,
-22,
11,
30,
16,
40,
-19,
7,
-28,
5,
-48,
6,
-33,
-14,
28,
25,
-55,
24,
36,
-15,
-2,
0,
28,
33,
0,
-11,
1,
15,
31,
8,
5,
-5,
6,
-80,
39
] |
Moore, J.
The husband of the plaintiff was insured in the defendant company. He accidently slipped and fell, resulting in injuries which disabled him for a time. This suit was brought upon the policy. The circuit judge-directed a verdict. The plaintiff appealed.
A number of questions are raised by counsel, but the-decision of one of them must end the case. At the time Mr. Ketcham applied for insurance, he was 53 years old. He was a soldier, and while in the army was sick with typhoid fever, resulting in a partial paralysis of his hips and legs. He had been lame so long, he was obliged to use a cane, but for the year preceding his application, though still lame, he got along without a cane. He had suffered two sunstrokes, which, as expressed by him on the witness stand, “at the time affected my whole general nervous system, back, spine, head, and everything else.” At the time he made his application, he says he thought he had outgrown the effects of the sunstroke. His claim is, he was urged to insure in defendant company by its agent, who knew him well, and had known him for years. The application was in writing, and was filled in by# the assured. ■ Before writing the answers to-the questions, Mr. Ketcham says he told the agent truthfully what his experiences had been, and the answers written in had the approval of the agent. The application provided the insurance should not take effect until approved by the officers of the company; that the membership should be based upon the statements contained in the application, which were warranted to be true and complete, and that the applicant had not concealed anything material to be known to the association. The certificate issued recites it is in consideration of the membership fee and the warranties and agreements contained in the application, and that no waiver shall be claimed by reason of any act or acts of any agents unless authorized in writing by the president of the association. In the application were the three following questions, all of which were answered in the negative:
“1. Have you ever received a severe bodily injury? If so, of what nature ?
“3. Have you ever had, or are you subject to, fits or any disorder of the brain or any mental infirmity ?
“3. Have you ever had, orare you now suffering from, any bodily deformities, infirmities, hernia, wounds, or any disease?”
From what has already been said, it is evident these questions are material ones, and the answers made to them were not true. It is also perfectly apparent the officers of the association could not intelligently decide whether the risk was a desirable one, unless the questions were truthfully answered. It is urged that, as the agent knew the answers were not true, his knowledge was the knowledge of the company, and, having issued the policy, the company is bound. The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, hut the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents. As soon as the defendant learned what the situation was, it returned the insurance money to Mr. Ketcham, and denied any liability under the policy. The court did right in directing a verdict for defendant. Brown v. Insurance Co., 65 Mich. 306 (8 Am. St. Rep. 894); Cook v. Insurance Co., 84 Mich. 12; Michigan Mutual Life Ins. Co. v. Reed, Id. 524 (13 L. R. A. 349); Finch v. Modern Woodmen of America, 113 Mich. 646.
Judgment is affirmed.
The other Justices concurred. | [
58,
-44,
-18,
41,
14,
1,
19,
-20,
21,
-4,
-16,
4,
52,
21,
0,
0,
-26,
-15,
-6,
-20,
-55,
8,
-19,
24,
-37,
-25,
-24,
-27,
-11,
5,
45,
31,
-12,
-11,
-51,
-21,
13,
-40,
-5,
-1,
29,
23,
24,
8,
-51,
-23,
-10,
1,
-1,
3,
80,
-10,
13,
-15,
-39,
24,
13,
47,
-34,
-63,
-53,
10,
19,
-44,
14,
-3,
20,
40,
11,
63,
-13,
-32,
-5,
-12,
-30,
-14,
-4,
23,
-40,
-60,
-12,
17,
28,
-43,
-15,
87,
-4,
61,
23,
-2,
-9,
-11,
-12,
-42,
-51,
-9,
-5,
19,
22,
29,
5,
-14,
-4,
14,
-16,
34,
-11,
-44,
-23,
9,
-15,
13,
-16,
31,
-18,
-15,
26,
49,
-15,
30,
-6,
-9,
17,
-12,
17,
33,
36,
-28,
-42,
19,
-4,
22,
46,
20,
-40,
-43,
-16,
-46,
2,
-61,
-15,
12,
17,
-23,
-2,
33,
22,
-52,
-26,
6,
20,
16,
-10,
-34,
-7,
25,
-35,
21,
15,
-40,
48,
-18,
12,
38,
1,
8,
0,
2,
28,
-1,
26,
-5,
18,
-41,
-20,
32,
94,
-18,
-4,
0,
-35,
0,
22,
18,
-12,
-22,
1,
16,
15,
-2,
-15,
-56,
-13,
25,
-18,
-16,
-11,
11,
20,
-50,
-12,
-29,
-38,
22,
27,
11,
-32,
0,
22,
21,
39,
24,
27,
-72,
-8,
19,
-9,
-15,
-59,
-22,
-41,
11,
-19,
20,
-37,
-42,
-15,
2,
-30,
-54,
-25,
-33,
13,
83,
23,
35,
24,
-10,
47,
8,
-27,
9,
27,
6,
8,
-21,
-20,
-35,
3,
-13,
-12,
65,
-2,
11,
-34,
-18,
17,
0,
-23,
-30,
-42,
36,
-36,
50,
48,
7,
-17,
11,
69,
-1,
5,
-2,
-7,
-8,
5,
-16,
6,
24,
4,
-51,
23,
11,
-11,
-7,
-66,
-29,
27,
-30,
-35,
-25,
28,
-49,
0,
-9,
47,
-75,
47,
-4,
-52,
-19,
31,
0,
4,
30,
33,
5,
0,
-33,
18,
-22,
-20,
9,
2,
-47,
22,
-37,
61,
-9,
-11,
-13,
1,
37,
-34,
8,
-30,
-16,
32,
-42,
-63,
16,
-49,
-6,
-9,
30,
11,
-7,
-4,
-25,
-4,
21,
1,
44,
-2,
18,
-2,
64,
32,
-36,
40,
3,
-64,
21,
21,
-60,
19,
53,
31,
-50,
-22,
34,
7,
-16,
-37,
32,
20,
-2,
39,
22,
3,
20,
41,
1,
32,
-57,
3,
-27,
6,
37,
4,
0,
8,
12,
7,
6,
-23,
-20,
-26,
-41,
0,
33,
-57,
3,
10,
62,
-39,
13,
-60,
-12,
16,
-5,
10,
14,
-11,
25,
9,
-21,
-13,
-18,
-6,
-6,
-18,
53,
-22,
-8,
20,
25,
37,
7,
11,
-19,
13,
-6,
-24,
-32,
-34,
-10,
-35,
-2,
14,
-35,
22,
-10,
20,
-34,
15,
-59,
-13,
-9,
-38,
13,
-17,
8,
-4,
-5,
-24,
-25,
10,
-2,
42,
-69,
-2,
-7,
5,
25,
-25,
-5,
1,
27,
-23,
-62,
24,
-20,
6,
-44,
42,
35,
-16,
-27,
39,
-49,
26,
-1,
-17,
26,
-9,
7,
-26,
-9,
-49,
-29,
-61,
28,
7,
-12,
-49,
-19,
3,
36,
18,
25,
40,
-4,
-32,
-56,
-37,
35,
-6,
31,
-60,
-65,
0,
11,
25,
-3,
34,
-33,
-8,
-17,
12,
-33,
-52,
-37,
-55,
31,
51,
34,
30,
1,
-36,
-4,
2,
-31,
-22,
4,
21,
8,
-22,
36,
2,
-60,
62,
-18,
11,
-29,
26,
34,
22,
-8,
-51,
-49,
-5,
36,
0,
-5,
21,
-51,
22,
51,
49,
4,
20,
-13,
-15,
23,
34,
-21,
9,
-28,
26,
39,
6,
-23,
11,
9,
4,
24,
0,
18,
7,
-26,
-57,
-16,
-26,
50,
5,
9,
-1,
28,
-26,
51,
-38,
-31,
-22,
-10,
-37,
-11,
-31,
45,
-26,
-49,
-1,
17,
-16,
24,
12,
25,
2,
-9,
-24,
-29,
-49,
17,
-35,
3,
22,
57,
67,
15,
25,
2,
-38,
18,
24,
-71,
-16,
-16,
26,
12,
29,
41,
-66,
53,
10,
-9,
-9,
25,
14,
18,
-2,
-12,
38,
-31,
44,
-57,
18,
-7,
9,
59,
-16,
-40,
-1,
2,
6,
7,
43,
-14,
6,
-12,
0,
-66,
-27,
21,
-49,
-3,
0,
8,
-9,
47,
-53,
43,
-36,
-40,
19,
30,
-1,
44,
25,
35,
-27,
-30,
9,
56,
43,
-7,
67,
0,
-11,
10,
-1,
55,
-16,
-31,
67,
-23,
19,
-8,
26,
-1,
38,
-24,
-16,
-11,
6,
-26,
-3,
18,
5,
27,
18,
-39,
-32,
-37,
-43,
38,
25,
3,
-29,
10,
3,
34,
30,
35,
20,
7,
21,
33,
3,
-45,
0,
0,
-1,
-30,
8,
-13,
42,
81,
49,
30,
10,
-47,
-22,
-30,
-29,
-27,
-19,
-1,
36,
0,
36,
10,
57,
9,
33,
31,
-5,
-11,
-21,
-38,
32,
13,
-48,
-43,
6,
-28,
51,
-14,
-14,
34,
14,
-4,
0,
-17,
31,
-17,
-22,
-1,
17,
-11,
1,
-2,
31,
7,
10,
-36,
-40,
17,
61,
-66,
-39,
28,
2,
33,
-14,
-6,
-48,
-34,
32,
-50,
24,
-47,
-2,
31,
-4,
9,
0,
-24,
27,
-32,
7,
-24,
-1,
26,
-50,
-3,
-13,
-5,
49,
40,
25,
-59,
-7,
-27,
-23,
18,
-55,
-46,
-14,
-11,
-42,
29,
21,
12,
8,
-40,
18,
-4,
0,
26,
28,
-29,
-53,
-29,
-22,
17,
12,
60,
29,
-27,
-48,
-18,
39,
28,
16,
54,
85,
-32,
-61,
1,
-29,
-6,
1,
-67,
11,
18,
-18,
-66,
15,
-12,
38,
-42,
2,
-40,
-5,
-15,
15,
-2,
23,
40,
5,
-39,
41,
9,
-51,
-30,
3,
30,
13,
-28,
52,
4,
3,
-23,
-25,
61,
-29,
18,
23,
9,
-54,
6,
45,
20,
19,
18,
-31,
14,
-14,
51,
-27,
10,
-20,
40,
21,
61,
-33,
-12,
37,
-12,
-10,
-24,
-26,
-8,
-5,
-51,
3,
65,
36,
4,
-42,
39,
-31,
-26,
16,
-11,
-15,
31,
52,
27,
13,
33,
64,
13,
7,
65,
15,
-9,
-8,
-20,
-54,
20,
34,
2,
-5,
-1,
-83,
-47,
31,
-30,
3,
29,
4,
13,
-11,
10,
-28,
17,
-38,
3,
-16,
45,
37,
1,
-63,
24,
-4,
26,
43,
-17,
-46,
-49,
71,
-40,
-4,
-3,
-23,
21,
0,
-45,
9,
34,
-9,
-11,
-18,
28,
-2,
24,
-24,
27,
-12,
-53,
-26,
20,
4,
29,
59,
-25,
-16,
84,
19,
-3,
-20,
-21,
36,
45,
-4,
8,
9,
19,
37,
-38,
5,
13,
25,
-54,
-24,
13,
-29,
-34,
-36,
-1,
24,
-16,
-1,
-36
] |
Montgomery, J.
This is an action on the case for the •destruction of plaintiff’s house, barns, hay, and grain, orchard, and other property by fire claimed to have been •caused by the negligence of the defendant. The plaintiff and defendant were farmers living on opposite sides of a highway running east and west through the township of Wright, in Ottawa county. The proofs tend to show that' the defendant had a barn ppon his premises on the south side of the highway, and abutting upon it, which on the 27th day of July, 1894, was filled with straw, hay, and oth,er combustible material. Over the floor on the south side was a scaffold some 6 feet above the floor, with straw and other things upon it. Across the highway were the barns of the plaintiff, some 10 or 12 rods distant. The barns were filled with hay, and some 20 acres of wheat was stacked near them. The barns substantially joined. The dwelling was about 2 rods from the nearest bam. On the 27th day of July, 1894, the weather was very hot, and a drought had prevailed for some time. On that day the wind had risen with the sun, and had steadily blown from the direction of the sun, there being in the middle of the day quite a breeze. This had occurred regularly for several days prior to July 27th. At about 1 o’clock on the 27th, the wind came almost directly from the defendant’s barn to those of the plaintiff. After dinner, on the 27th day of July, 1894, and a little before 1 o’clock, the •defendant lit his pipe, went into his barn, and lay down on the hay or straw on the scaffold over the floor, smoN ing. He fell into a doze, the pipe fell into the straw, and, igniting it, set fire to the barn. This fire was rapidly communicated to the premises of plaintiff, and his barns, with hay, grain, dwelling house, furniture, orchard, shade trees, fences, and personal property, to the value of nearly $3,000, were destroyed. There was no contributory negligence on the part of the plaintiff.
When the plaintiff rested his case, counsel for the defendant moved that the court direct a verdict for the •defendant, for the reason that the plaintiff had not by his proofs shown a cause of action. Thereupon the court directed the jury to render a verdict for the defendant, for the reason that the negligence of the defendant was not the proximate cause of the injury.
It is argued in this court that there was no evidence that, the origin of the fire was the defendant’s pipe. The evidence does, however, show that the defendant admitted that he lighted his pipe, and went into the barn, and lay down in the midst of the combustible material, and went to sleep, and that he stated that he supposed that his pipe must have slipped from his mouth while-he was asleep. While it is true that this mere expression of opinion would not be conclusive, we think the facts shown were such as-' to require the submission of the origin of the fire to the jury.
It is also insisted that there was no evidence of negligence. It is said that there is no evidence of the danger of going into a barn with a pipe lighted or unlighted; that there is no evidence of communicating fire from a lighted tobacco pipe to oat straw; and counsel cite as a parallel case Wood v. Railway Co., 51 Wis. 196, in which the testimony was that a lamp was left burning in a building which took fire, and the court seems-to have expressed the opinion that the origin of the fire rested in mere conjecture, although the conclusion of the court apparently rests upon the ground that the leaving of a lighted lamp in a house is not negligence. Without discussing the soundness of that case, we think the distinction between leaving a lighted lamp in a house, and lying down to smoke in the midst of straw or other combustibles, is obvious, and that it was competent for the jury to draw such inferences from the proven facts as common knowledge would suggest.
The meritorious question is, Was the defendant liable-for the consequences of the fire spreading from his own building to that of the plaintiff, if the fire in defendant’s building be found to have originated in consequence of his negligence? In the absence of an intervening cause, it seems to us clear that the bare fact that the defendant may have suffered a loss of his own property through the same' negligent act does not render him any the less liable to the plaintiff for a loss ensuing to him through that neglect. Whatever may have at one time been held under the statute (6 Anne, chap. 31, § 6) which provided that no action should be maintained against any person in whose house or chamber any fire should accidentally begin, that statute is not applicable here. The subsequent statute (14 Geo. III. chap. 78, § 86), which enlarges the statute of Anne, had received no judicial construction prior to the Revolution. Since then, however, it has been construed in Filliter v. Phippard, 11 Q. B. 347, and it is held not to include fires set or induced by negligence. See, also, 1 Smith, Lead. Cas. (8th Ed.) 501, 502; Ray, Neg. Imp. Dut. (Personal) 641; 2 Shear. & R. Neg. § 665; McNally v. Colwell, 91 Mich. 532 (30 Am. St. Rep. 494).
Was the defendant’s negligence the proximate cause of; the injury to the plaintiff? The question is not different' than it would be if the building first fired through the defendant’s negligence had belonged to a third person or the plaintiff. The question is whether the owner of a building taking fire from another building, which is set on fire through the negligence of another, has an action against that other for the injury. This question has received consideration by this court. In Hoyt v. Jeffers, 30 Mich. 199, Mr. Justice Christiancy, speaking for the court, said:
“If such other buildings are satisfactorily shown to have been actually burned by the fire of the Sherman House, caused by the negligence of the defendant, and especially if this was, under the circumstances, the natural and probable, as well as the actual, result of the fire so caused, and without any contributory negligence of the plaintiff, I can see no sound principle which can make the defendant’s liability turn upon the question whether the buildings thus burned by the fire of the first were five, six, or fifty feet, or the one-hundredth part of an inch, from it. And though a building thus burned by the fire of the first might be at such a distance that its taking fire from the first might not, a priori, have seemed possible, yet if it be satisfactorily shown that it did in fact thus take fire, without any negligence of the owner, and without the fault of some third party, which could properly be recognized as the proximate cause, and for which he could be held liable, the principle of justice or sound logic, if there be any, is very obscure, which can exempt the party through whose negligence the first building was burned from equal liability for the burning of the second. If it be said that this extent of liability might prove ruinous to the party through whose negligence the buildings were burned, it may be said, in reply, that, under such circumstances, it is better, and more in accordance with the relative rights of others, that he should be ruined by his negligence than that he should be allowed to ruin others who are innocent of all negligence or wrong.”
See, also, Cooley, Torts, 590; Delaware, etc., R. Co. v. Salmon, 39 N. J. Law, 299 (23 Am. Rep. 214); Perley v. Railroad Co., 98 Mass. 414 (96 Am. Dec. 645); Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469.
Was the wind an intervening cause? The evidence tends to show that it was an existing condition at the very time the negligent act occurred, and did not constitute an intervening efficient cause. The fact that the consequences of the defendant’s negligent act were more serious than would have followed under other more favorable conditions of the atmosphere does not relieve the defendant. Hoyt v. Jeffers, supra; 1 Shear. & R. Neg. § 30; Fent v. Railway Co., 59 Ill. 349 (14 Am. Rep. 13); Perley v. Railroad Co., supra.
It was a question for the jury as to whether the consequences of the defendant’s negligent act ought to have been foreseen; and this is but another statement of the proposition that negligence is the absence of such care as persons of ordinary prudence are expected to exercise under like circumstances. Milwaukee, etc., R. Co. v. Kellogg, supra, Ross v. Township of Ionia, 104 Mich. 320.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
-10,
81,
42,
24,
9,
28,
48,
-7,
48,
2,
23,
-26,
11,
0,
13,
-62,
-27,
8,
2,
10,
40,
-15,
-21,
-10,
15,
-40,
16,
-14,
-77,
19,
-16,
3,
-41,
4,
-45,
-44,
24,
-15,
-4,
-3,
10,
-1,
34,
-63,
69,
-14,
10,
-11,
41,
74,
-13,
-41,
23,
-14,
-42,
-39,
-16,
59,
-23,
0,
24,
-24,
-26,
-18,
33,
4,
-45,
-25,
-45,
2,
0,
4,
-33,
-36,
9,
-45,
4,
-49,
-13,
39,
-16,
-7,
41,
25,
-64,
-55,
0,
-27,
-30,
14,
-42,
-25,
-28,
-5,
44,
0,
-22,
65,
-13,
17,
41,
0,
1,
-12,
-45,
-12,
-37,
-19,
-7,
-43,
17,
33,
18,
-8,
16,
-58,
5,
-19,
-4,
-13,
9,
-19,
-9,
-20,
-25,
-4,
3,
30,
40,
-20,
25,
-22,
-34,
42,
-39,
-13,
0,
9,
-47,
-31,
17,
-6,
-30,
-4,
0,
21,
-55,
-24,
-24,
3,
-20,
26,
14,
-4,
5,
-6,
28,
-42,
28,
32,
16,
0,
-42,
-22,
-34,
-12,
-41,
-15,
-20,
-15,
-17,
-16,
-3,
16,
28,
2,
1,
-1,
18,
85,
36,
-9,
8,
24,
1,
23,
-56,
31,
34,
20,
53,
-13,
-46,
-20,
-1,
21,
-20,
-33,
9,
-18,
5,
13,
-11,
-79,
-6,
-9,
-6,
7,
8,
9,
-13,
-3,
-17,
0,
1,
14,
6,
-2,
-4,
-36,
-3,
70,
-16,
17,
-45,
-53,
-4,
35,
61,
5,
12,
-32,
8,
-10,
-1,
-65,
19,
-1,
7,
10,
-17,
2,
17,
8,
68,
38,
-20,
30,
31,
54,
-10,
4,
0,
-21,
22,
17,
23,
8,
-6,
-6,
-2,
6,
26,
-14,
35,
-22,
-43,
1,
-24,
35,
-37,
-29,
56,
-20,
-54,
7,
9,
53,
-27,
-5,
47,
-26,
-70,
-17,
0,
42,
19,
36,
-65,
-36,
-5,
-53,
-13,
-22,
-9,
7,
14,
-16,
10,
5,
9,
-10,
-39,
-61,
-16,
-5,
-33,
-65,
6,
1,
-16,
-14,
14,
0,
5,
-6,
36,
44,
-52,
-49,
21,
-14,
-7,
21,
7,
1,
-16,
-26,
-37,
83,
-14,
0,
39,
75,
-11,
8,
25,
2,
-4,
-19,
29,
-12,
19,
0,
3,
45,
0,
52,
-4,
-36,
-32,
-41,
9,
10,
7,
-64,
-12,
14,
-21,
7,
38,
6,
-7,
10,
42,
1,
-12,
-58,
-49,
-19,
-11,
11,
50,
19,
11,
16,
-3,
-13,
-59,
55,
23,
-8,
17,
17,
11,
-14,
11,
-15,
-51,
27,
-7,
-25,
27,
28,
26,
-7,
21,
-43,
-26,
-5,
-12,
25,
31,
-32,
-19,
9,
-57,
-28,
29,
-40,
9,
-15,
31,
-17,
35,
12,
37,
21,
10,
23,
65,
-2,
72,
-5,
30,
-13,
56,
-28,
-4,
-27,
8,
7,
1,
62,
14,
38,
-20,
-1,
-8,
14,
-29,
22,
-37,
38,
1,
14,
-22,
21,
32,
-12,
-5,
-21,
2,
28,
-10,
54,
0,
-5,
18,
-41,
-22,
22,
-42,
-9,
0,
19,
-39,
-21,
30,
8,
6,
-7,
22,
-42,
-34,
-28,
24,
3,
-12,
27,
7,
-1,
-4,
9,
-5,
-41,
-13,
68,
-4,
8,
48,
3,
-5,
39,
-22,
1,
-1,
-4,
13,
9,
-26,
-7,
-21,
-44,
41,
28,
23,
2,
26,
30,
20,
-7,
24,
-24,
-16,
16,
27,
8,
41,
28,
-18,
-26,
0,
10,
65,
-7,
23,
19,
-26,
-27,
31,
-37,
0,
23,
-18,
-3,
55,
5,
0,
-39,
-8,
7,
40,
-6,
-51,
29,
-3,
-22,
-2,
42,
56,
-55,
15,
-41,
-32,
42,
-16,
-35,
-14,
-17,
0,
-52,
15,
-34,
11,
-16,
0,
10,
35,
18,
23,
-8,
26,
1,
13,
-7,
-52,
-17,
-10,
32,
2,
-26,
-30,
-25,
34,
7,
1,
-8,
-47,
21,
0,
50,
18,
-12,
3,
-6,
-22,
-36,
10,
39,
9,
-22,
-61,
15,
30,
36,
-45,
-1,
-14,
22,
8,
0,
-20,
3,
22,
17,
-19,
15,
-15,
0,
32,
-52,
-26,
-10,
2,
-14,
27,
-9,
-37,
18,
-69,
-10,
-21,
6,
7,
-30,
44,
4,
-76,
14,
-17,
-29,
-31,
-4,
-50,
23,
-4,
19,
-38,
-45,
-42,
-34,
-24,
-3,
5,
-43,
82,
0,
-5,
-35,
36,
-15,
17,
33,
-13,
-7,
-3,
33,
-68,
56,
57,
-47,
2,
30,
15,
-18,
16,
35,
28,
44,
52,
-15,
10,
13,
41,
-19,
18,
8,
0,
-8,
-16,
-20,
8,
41,
-5,
-3,
-13,
-7,
-14,
-30,
35,
-21,
36,
14,
5,
15,
30,
-70,
32,
-29,
-8,
13,
48,
20,
-8,
-26,
25,
12,
3,
31,
4,
-24,
-4,
-32,
-35,
-57,
30,
-24,
14,
-8,
-11,
49,
-48,
14,
16,
22,
42,
19,
1,
-26,
-23,
-39,
25,
0,
17,
-17,
34,
-7,
6,
-44,
19,
-11,
27,
-18,
-3,
-32,
14,
-26,
-46,
-23,
71,
-7,
11,
-31,
-26,
-2,
53,
-16,
7,
2,
-16,
62,
-1,
-47,
31,
44,
-17,
-37,
10,
-31,
51,
-84,
-14,
-12,
-6,
-20,
23,
-2,
-9,
-1,
7,
-28,
9,
-22,
-44,
-26,
23,
-18,
-20,
-9,
8,
16,
15,
61,
-9,
0,
-22,
15,
4,
12,
38,
31,
19,
-33,
-29,
-2,
4,
10,
21,
58,
11,
7,
23,
-21,
65,
-13,
32,
0,
13,
-31,
47,
-68,
-32,
23,
61,
-15,
30,
-7,
-59,
26,
-11,
-11,
15,
-11,
18,
-49,
18,
38,
2,
24,
-20,
12,
3,
0,
-55,
-46,
2,
31,
25,
40,
10,
-47,
-27,
-3,
-43,
-5,
4,
27,
-35,
36,
-5,
-20,
-33,
27,
21,
41,
-22,
-56,
37,
-8,
-7,
-57,
-12,
36,
25,
-7,
-25,
-53,
-6,
87,
25,
-28,
15,
60,
-13,
10,
-75,
-19,
-29,
-76,
4,
-22,
-3,
0,
54,
-38,
6,
-31,
43,
7,
-25,
-35,
-34,
-19,
-31,
45,
-8,
-13,
5,
13,
7,
9,
30,
12,
3,
49,
-66,
27,
-9,
43,
-10,
-28,
-21,
-26,
-2,
-2,
11,
-85,
31,
3,
41,
24,
-30,
-21,
0,
3,
13,
0,
-17,
36,
0,
41,
16,
57,
22,
21,
-6,
-4,
24,
34,
-21,
34,
-4,
-7,
24,
-15,
20,
24,
-30,
5,
-5,
-37,
-2,
-8,
46,
40,
29,
62,
0,
-57,
-33,
-98,
-32,
-15,
0,
-10,
7,
-66,
-44,
-25,
-40,
63,
43,
-11,
3,
3,
-60,
-57,
-43,
-27,
-26,
-1,
29,
40,
78,
16,
11,
52,
-6,
-23,
-41,
6,
15,
-21,
-42,
25,
7,
51,
19,
-18,
20,
42,
-7,
82
] |
Hooker, J.
In December, 1894, the defendant was mayor of the city of Ironwood, and the plaintiff had been his predecessor for three years, ending in the spring of 1894. Previous to December, 1894, there was organized in that city an association called the “Taxpayers’ Association.” A short time before December 4, 1894, this organization presented to the common council of the city a request for the privilege of. holding its meetings in the common council chambers, and a resolution granting it was adopted by unanimous vote of the aldermen'. Within 24 hours, the defendant filed a written message, addressed to the common council, announcing the veto of the resolution authorizing the use of the council rooms, and giving what purported to be reasons therefor. This message afterwards appeared in the official organ (i. e., newspaper) of the city. Thereupon this action for libel was brought.
In opening the case, counsel for the plaintiff said, after stating the foregoing facts, that—
“We expect to show that the publication of this paper by the defendant in this case was malicious, and intended to injure the plaintiff, and that the plaintiff has suffered damage thereby. The alleged libel, known as the ‘veto message,’ I hold in my hand, and ask to have treated as a part of this opening.' We do not expect in this case to prove any other publication than the writing by the mayor of the so-called ‘veto message,’ the presenting it to the city clerk, its publication by being read by the city clerk in the common council, and its subsequent publication by being published in the official paper of the city. We expect to show no other publication by the defendant.”
An objection was made to the introduction of any testimony, upon the ground that the writing was ‘ ‘ absolutely privileged.” The learned circuit judge sustained the objection, and directed a verdict for the defendant.
There are two views that may be taken of this writing, and the circumstances under which it was published, i. e., filed: First, that it was conditionally privileged; second, that it was absolutely privileged. If it was only conditionally privileged, the question of malice should have been submitted to the jury upon the testimony offered; but we must consider it as absolutely privileged, under the decision in the case of Wachsmuth v. Merchants’ Nat. Bank, 96 Mich. 427 (21 L. R. A. 278), unless there is that in the message itself which was not a proper subject for communication to the council, by reason of its not being pertinent to the subject. Whether the law justifies even this limitation upon the absoluteness of the privilege, we will not inquire, and design to imply no •opinion, but will treat the existence of such a limitation as conceded, for the purpose of the case. Whether or not the message contains anything in its nature libelous, that was not pertinent, was a question for the court, inasmuch as it and the proceedings of the council were in writing.
The plaintiff, with others, had organized what they called a “Taxpayers’ Association,” apparently with a, view to influencing the management of public affairs which were confided to the council. To further that end, they asked the use of public property. It was the duty of the mayor to veto the resolution if, in his opinion, the interests of the city required it; and it was proper for him to advise the council of his reasons therefor in his veto message, as required by the charter. In this, he was warranted in stating any reasons legitimately bearing upon the relation of the plaintiff to city affairs, and the fitness of the association to influence them; and, if his privilege depends upon the question of pertinency, reasonable latitude should be permitted. Our examination of the article leads us to the conclusion that the entire message was pertinent to the subject, and that the same was privileged. The judgment is therefore affirmed.
The other Justices concurred. | [
5,
0,
29,
29,
19,
5,
11,
-40,
-49,
34,
-4,
-26,
40,
48,
-15,
-24,
17,
-2,
10,
1,
21,
-35,
-37,
-11,
-20,
-25,
3,
11,
-24,
-5,
10,
17,
39,
20,
-9,
-11,
46,
12,
-10,
-35,
25,
26,
-37,
-12,
10,
-2,
-30,
11,
-6,
-56,
11,
10,
-38,
-29,
-8,
11,
17,
-30,
16,
40,
-40,
6,
-1,
-9,
71,
-28,
-36,
18,
19,
-39,
5,
-35,
-23,
-50,
0,
-27,
16,
-19,
-42,
66,
-82,
-10,
-7,
-16,
2,
-27,
4,
-14,
17,
3,
18,
-74,
-9,
12,
-6,
48,
2,
20,
-16,
3,
-35,
-15,
-7,
-8,
9,
-16,
11,
1,
22,
2,
-33,
-3,
-1,
-35,
35,
-46,
27,
29,
17,
-7,
37,
-24,
-26,
45,
-33,
28,
-14,
39,
-20,
-18,
17,
0,
19,
-23,
43,
73,
4,
-15,
53,
-8,
1,
21,
-23,
2,
-38,
-29,
-47,
50,
-78,
11,
-8,
-8,
-8,
3,
10,
-21,
-2,
-84,
72,
13,
-36,
35,
-2,
-25,
-29,
4,
-40,
-39,
-41,
27,
11,
5,
-51,
8,
18,
-56,
-57,
3,
-8,
-20,
39,
41,
2,
29,
1,
-15,
40,
-61,
-12,
-3,
10,
-21,
-35,
-44,
28,
-34,
17,
8,
15,
-19,
1,
-8,
-26,
46,
-13,
-12,
-9,
-48,
-50,
35,
4,
-2,
-24,
6,
58,
18,
-33,
-31,
-1,
31,
-17,
25,
5,
-10,
-81,
3,
6,
28,
12,
3,
0,
6,
-24,
14,
16,
1,
7,
24,
-3,
-25,
-77,
58,
-3,
38,
7,
1,
-4,
11,
29,
66,
39,
-36,
38,
14,
-43,
-15,
-38,
-11,
10,
7,
40,
46,
-4,
2,
0,
-25,
40,
22,
-5,
-65,
-16,
35,
24,
62,
-41,
-3,
-3,
-45,
21,
-9,
-2,
-16,
-1,
-35,
5,
-8,
-16,
-17,
39,
7,
8,
13,
-17,
37,
53,
10,
26,
12,
0,
2,
14,
-18,
23,
-8,
25,
-14,
26,
-1,
19,
29,
60,
25,
-31,
-6,
-24,
-12,
-11,
56,
-16,
-13,
-1,
-6,
-7,
-31,
-36,
-26,
64,
-36,
-14,
-11,
13,
0,
-30,
-10,
21,
-27,
21,
-19,
-26,
-86,
-27,
-36,
-24,
-16,
-39,
-11,
-94,
43,
-2,
-21,
6,
-2,
24,
-8,
-16,
26,
-11,
-22,
2,
-5,
-5,
19,
-63,
7,
49,
-18,
-32,
32,
2,
21,
12,
-25,
1,
18,
23,
-4,
14,
46,
20,
45,
14,
-31,
64,
-33,
11,
-26,
1,
-6,
-29,
-82,
-34,
24,
-15,
62,
-13,
-14,
-18,
-65,
-10,
11,
-6,
44,
8,
-15,
-46,
25,
-47,
13,
-17,
29,
16,
-4,
33,
0,
-9,
-22,
13,
4,
59,
-7,
33,
39,
40,
0,
9,
-7,
40,
33,
28,
-7,
-27,
-44,
21,
-76,
-29,
33,
0,
-32,
14,
-27,
-9,
12,
-34,
-16,
-37,
-18,
17,
-7,
-4,
-42,
17,
-18,
-59,
-24,
17,
-11,
37,
-33,
22,
-17,
-21,
-16,
-30,
-9,
-21,
46,
-33,
9,
0,
-6,
-39,
-19,
-1,
-2,
-42,
31,
-16,
5,
-11,
-4,
22,
12,
0,
24,
-2,
-8,
60,
-41,
-26,
-37,
37,
25,
-38,
-40,
58,
14,
5,
24,
15,
41,
15,
24,
28,
-18,
6,
-51,
-7,
3,
32,
37,
49,
-22,
18,
-8,
7,
49,
-19,
-22,
16,
-12,
42,
-34,
-45,
-13,
-51,
-31,
60,
-23,
14,
0,
14,
-7,
15,
-17,
23,
-19,
7,
6,
-7,
20,
-4,
-4,
62,
19,
-58,
12,
10,
-13,
28,
3,
-81,
-23,
-6,
8,
-2,
44,
-37,
3,
31,
7,
-53,
36,
29,
-28,
-18,
-29,
-4,
19,
11,
-34,
15,
-11,
6,
1,
-45,
-8,
19,
-26,
33,
39,
9,
-43,
-5,
-6,
15,
-56,
32,
-1,
-7,
-15,
-16,
1,
-40,
13,
0,
-7,
-5,
19,
12,
23,
-7,
-16,
16,
-22,
-3,
-49,
24,
-7,
-46,
22,
19,
41,
-22,
66,
-41,
45,
-52,
-26,
43,
4,
29,
14,
16,
57,
65,
-47,
0,
-35,
0,
-16,
-22,
-60,
-55,
-7,
13,
-11,
3,
53,
19,
11,
27,
-2,
0,
-32,
19,
53,
-1,
2,
-24,
18,
21,
-7,
42,
-42,
-16,
-13,
-34,
-1,
13,
-24,
14,
9,
1,
39,
-31,
-12,
61,
19,
-20,
3,
51,
-44,
57,
19,
10,
-53,
21,
-7,
-5,
-29,
-14,
1,
43,
-1,
-40,
8,
-9,
-6,
-4,
-9,
21,
29,
20,
51,
0,
9,
43,
-36,
-4,
9,
-45,
-34,
11,
30,
-5,
0,
19,
-56,
36,
2,
47,
-3,
5,
22,
9,
-3,
37,
55,
-21,
13,
-34,
-19,
21,
-20,
11,
-36,
-9,
-40,
-5,
76,
-1,
16,
-26,
7,
-19,
41,
-1,
-39,
30,
34,
-16,
-5,
-27,
-2,
-11,
-3,
51,
2,
3,
23,
-4,
-20,
-57,
-19,
-19,
27,
-23,
26,
-39,
-5,
32,
-17,
70,
-30,
9,
43,
4,
22,
53,
-61,
35,
-54,
-6,
-3,
17,
19,
-50,
-30,
-13,
0,
19,
-30,
-34,
29,
16,
6,
-17,
9,
-21,
6,
-15,
-20,
8,
-9,
-10,
43,
1,
-64,
-4,
-16,
12,
8,
-24,
17,
-52,
6,
12,
40,
-14,
-15,
-33,
13,
-21,
-43,
-15,
-7,
28,
15,
-37,
-27,
-23,
4,
19,
13,
5,
14,
-22,
14,
58,
-14,
35,
5,
13,
-11,
-8,
28,
-19,
-24,
4,
20,
-13,
-52,
32,
20,
-2,
-10,
-7,
66,
9,
-44,
27,
-7,
21,
-7,
0,
-20,
16,
-23,
-4,
0,
26,
28,
-25,
-51,
-14,
-35,
-1,
5,
89,
-19,
44,
17,
8,
-22,
-13,
25,
-19,
-3,
-27,
-54,
-42,
58,
16,
-5,
-20,
-3,
0,
-24,
41,
-48,
36,
5,
24,
11,
-8,
10,
13,
-25,
47,
30,
-13,
17,
40,
-7,
-19,
-89,
26,
-9,
59,
-26,
8,
-26,
24,
-17,
12,
8,
-17,
16,
10,
25,
25,
39,
33,
43,
-10,
-2,
41,
8,
-21,
60,
24,
-32,
-10,
14,
39,
17,
2,
-18,
39,
59,
-16,
-42,
-20,
-51,
0,
-21,
-24,
-29,
23,
0,
-24,
-41,
37,
49,
5,
-14,
-2,
35,
7,
-18,
0,
10,
-12,
-38,
-12,
11,
-3,
-1,
8,
5,
-18,
39,
-5,
-20,
-23,
-19,
-12,
-5,
-3,
25,
38,
16,
-15,
21,
-44,
-11,
60,
11,
6,
16,
-7,
57,
-4,
-43,
4,
5,
-12,
-26,
0,
-11,
2,
2,
-27,
-20,
-13,
-17,
10,
3,
-53,
3,
0,
-8,
-9,
-3,
1,
7,
28,
-9,
24,
-20,
12,
3,
-16,
33
] |
Per Curiam.
In these cases, after the expiration of
more than 80 days from the entry of the judgments, the court entered ex j^arte orders extending the time to settle bills of exceptions. These orders were granted without any affidavits or notices of motions to the opposite side. The orders were without authority, under Cir. Ct. Rule No. 47, and Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399.
A writ of mandamus will issue in each case. | [
-43,
12,
50,
8,
13,
0,
50,
-10,
27,
70,
37,
10,
-52,
-46,
-24,
2,
-7,
-26,
-11,
7,
-26,
28,
67,
1,
-35,
9,
-7,
29,
-13,
68,
-43,
-36,
-15,
7,
-2,
24,
-15,
-25,
64,
-19,
20,
-57,
-18,
6,
-42,
-25,
-8,
27,
10,
-57,
15,
34,
-31,
4,
-25,
11,
-49,
-67,
19,
3,
13,
7,
-7,
-1,
-11,
58,
-50,
-9,
0,
37,
30,
-22,
59,
15,
1,
1,
36,
9,
0,
-19,
11,
-26,
-24,
2,
-33,
-30,
-25,
8,
-5,
-59,
-47,
-6,
-45,
-73,
-44,
29,
5,
-44,
22,
33,
-17,
-11,
-10,
-7,
-9,
-21,
-23,
0,
-69,
-46,
-11,
-16,
23,
23,
0,
45,
-31,
-19,
-30,
-21,
-19,
-22,
28,
1,
6,
44,
-25,
-6,
24,
16,
-36,
41,
-4,
8,
8,
13,
-12,
25,
70,
-95,
31,
-42,
43,
2,
-9,
-66,
38,
-12,
-51,
-1,
-9,
37,
-14,
54,
-18,
45,
-25,
-40,
41,
11,
70,
10,
-27,
-24,
9,
-3,
1,
-5,
26,
-17,
-8,
-25,
-10,
-20,
28,
-25,
-15,
6,
50,
7,
13,
108,
-42,
-13,
12,
19,
-9,
-21,
-15,
-37,
25,
-2,
15,
43,
43,
-45,
29,
40,
72,
78,
-75,
-33,
-1,
63,
-38,
1,
3,
11,
-26,
20,
-42,
8,
1,
-39,
-25,
-36,
43,
4,
19,
2,
58,
-18,
14,
-5,
13,
-30,
26,
-15,
25,
54,
-9,
-5,
6,
-6,
64,
-8,
13,
-10,
46,
38,
-55,
4,
-38,
-20,
-1,
40,
-7,
-14,
45,
47,
0,
21,
0,
-15,
18,
-34,
-23,
7,
-19,
1,
13,
19,
0,
-48,
-5,
25,
17,
65,
-42,
-16,
-48,
17,
4,
-34,
12,
0,
-23,
-3,
-57,
-42,
8,
-1,
6,
11,
-102,
7,
-20,
7,
-5,
36,
-20,
56,
-51,
33,
33,
44,
-6,
-1,
15,
-25,
-82,
-37,
-18,
14,
11,
-25,
-26,
-5,
11,
-61,
-2,
16,
20,
17,
-4,
-5,
-41,
-16,
-6,
-40,
-39,
54,
17,
-9,
-60,
-3,
31,
14,
1,
18,
9,
62,
-6,
-22,
27,
28,
18,
51,
-24,
-11,
24,
27,
-21,
4,
-13,
-15,
41,
-55,
50,
31,
-29,
-35,
-32,
20,
24,
20,
-32,
-41,
-45,
69,
45,
-20,
-5,
-6,
59,
13,
8,
20,
36,
37,
73,
8,
3,
-10,
-10,
-29,
28,
25,
36,
92,
-30,
-43,
-11,
4,
5,
17,
-31,
-47,
-23,
-42,
-74,
-34,
-39,
-20,
-29,
17,
-5,
6,
-8,
4,
-15,
4,
-27,
-6,
2,
6,
-13,
-2,
38,
-8,
-1,
26,
26,
-7,
-31,
-20,
63,
14,
45,
-22,
-12,
15,
-3,
-29,
-18,
-53,
18,
21,
34,
37,
12,
27,
-8,
-22,
7,
31,
-12,
-49,
-1,
63,
28,
-5,
18,
-20,
-32,
12,
-6,
6,
6,
15,
31,
-1,
-2,
-17,
-46,
14,
-17,
37,
-4,
-2,
13,
-57,
-59,
42,
-10,
21,
4,
-14,
24,
-17,
-56,
-38,
6,
66,
-64,
-27,
-42,
30,
-15,
8,
-3,
37,
-45,
4,
-53,
14,
-47,
-19,
2,
47,
6,
-44,
13,
16,
-9,
-14,
-78,
-19,
-21,
49,
-7,
-3,
37,
6,
9,
-6,
-17,
-23,
0,
-9,
-41,
-33,
53,
16,
-22,
11,
38,
-2,
-4,
12,
-63,
-19,
-20,
44,
-43,
41,
-12,
-15,
-22,
0,
-45,
-54,
-39,
-36,
-54,
38,
-25,
-33,
-22,
-16,
26,
37,
22,
60,
71,
39,
-20,
-35,
-14,
40,
-9,
3,
-13,
-53,
-37,
-8,
-14,
-1,
45,
-71,
-15,
4,
2,
-4,
28,
17,
0,
-1,
-46,
59,
-11,
39,
36,
11,
0,
0,
-8,
-8,
21,
-70,
-7,
-4,
-11,
-33,
31,
9,
34,
-45,
13,
-3,
6,
-24,
14,
-37,
18,
17,
-32,
-11,
95,
40,
24,
0,
-31,
6,
-6,
-27,
34,
-15,
-29,
-33,
50,
8,
-47,
7,
-48,
-2,
1,
24,
14,
32,
6,
-2,
-11,
40,
5,
0,
17,
-78,
-38,
-6,
8,
33,
20,
21,
-49,
30,
45,
-3,
-2,
3,
-52,
36,
27,
-38,
29,
-6,
11,
4,
28,
72,
27,
59,
5,
-16,
26,
19,
50,
-18,
17,
-45,
-2,
-23,
-2,
53,
4,
53,
-54,
-1,
7,
7,
44,
8,
20,
-22,
-10,
20,
-31,
-22,
-6,
14,
-52,
9,
-10,
36,
-17,
-31,
17,
24,
-24,
20,
-32,
50,
-5,
-18,
45,
-5,
40,
96,
-2,
-22,
-23,
35,
13,
55,
-25,
-3,
19,
37,
6,
5,
-88,
-54,
-15,
47,
34,
-17,
-26,
-14,
-14,
-26,
-7,
-39,
-31,
-15,
-45,
-25,
-7,
-22,
11,
14,
5,
0,
0,
-32,
-31,
-25,
-28,
-53,
-7,
24,
10,
-12,
47,
12,
-28,
24,
-4,
15,
-3,
25,
45,
30,
-11,
22,
-13,
6,
47,
-24,
39,
-2,
2,
12,
25,
43,
-28,
-10,
-12,
-9,
-12,
-36,
-12,
-55,
20,
-55,
22,
-44,
-52,
34,
87,
-34,
-24,
-26,
53,
22,
72,
-49,
8,
-67,
-7,
39,
44,
-73,
21,
13,
19,
23,
-41,
-23,
-2,
-4,
23,
-8,
-12,
0,
0,
39,
-79,
27,
9,
-4,
29,
-37,
-16,
-25,
-2,
30,
-55,
-19,
-2,
-42,
-23,
2,
19,
-29,
-15,
55,
16,
-48,
65,
42,
58,
-55,
38,
11,
12,
-32,
-12,
-24,
28,
-27,
-58,
-9,
-11,
-28,
-1,
-28,
-32,
4,
-16,
35,
19,
13,
0,
2,
28,
-12,
13,
-55,
7,
-67,
16,
30,
14,
-77,
-5,
-26,
-55,
27,
42,
-1,
-4,
18,
29,
2,
-49,
-22,
45,
-50,
-52,
-32,
-16,
34,
51,
-22,
-22,
-12,
1,
-14,
-7,
32,
5,
0,
-34,
14,
29,
8,
-9,
-68,
-36,
59,
14,
29,
59,
-2,
36,
30,
9,
14,
22,
38,
39,
30,
-14,
-10,
25,
22,
32,
16,
-12,
-73,
0,
-13,
26,
-31,
37,
33,
13,
-37,
-14,
-12,
-3,
-11,
8,
10,
7,
-58,
-6,
-21,
23,
11,
-60,
-42,
36,
19,
44,
48,
-3,
17,
18,
12,
-20,
8,
4,
-27,
-25,
-2,
22,
12,
-13,
27,
-52,
-16,
68,
19,
-4,
-26,
4,
2,
-19,
37,
5,
6,
-10,
15,
-25,
-22,
-16,
26,
27,
14,
-36,
-63,
-10,
-4,
-5,
41,
-21,
-1,
-7,
1,
41,
6,
21,
-4,
-2,
-12,
-13,
-16,
33,
63,
9,
1,
20,
-22,
-2,
-16,
-40,
10,
-65,
-8,
-9,
28,
64,
18,
16,
1,
18,
-40,
55,
1,
-3,
-2,
38,
-17
] |
Grant, C. J.
(after stating the facts). The statute makes it “unlawful for any person * * * to keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away, or furnished,” etc. 3 How. Stat. § 2283a. The case was submitted to the jury upon the theory that, if they should find the facts as stated in the testimony on behalf of the people, the respondent was guilty, but, if they should find them as stated in the testimony on behalf of the respondent, they should acquit. Two questions are raised which it is of importance to discuss.
It is urged that the court should, as requested, have instructed the jury that they must find an intent on the part of the respondent to violate the law, in order to convict him of the offense. This is not a case where the intent is an ingredient of the offense. If the facts proven justify the conclusion that he kept and furnished liquors in his shop for others who might come there to drink, the offense was complete, and the intent was immaterial.
The court, in instructing the jury, stated to them that the law provided that “proof of a single sale of any one or more of the liquors or beverages mentioned in this act, or of the posting in any distillery, brewery, saloon, or other place of business of a United States revenue receipt permitting the manufacture or sale, * * * shall be presumptive evidence,” etc. This is urged as error, be cause there was no positive proof of a sale, and no proof whatever of the posting of the notice mentioned. We must concede to a jury a fair degree of intelligence; and to hold that they were misled into believing that there was evidence of posting such notice, and based their verdict upon .that, would be a reproach to their intelligence. It is a fair inference from the requests of counsel, as shown by the record, that it was contended by the people that the respondent was guilty of a sale, and that he was not so disinterested a lover of his fellows as to ‘ furnish them liquor for nothing. We are not prepared to say that such an inference may not be drawn from the evidence. But, be this as it may, we think that the instructions given to the jury at the request of respondent remove all probability that the jury were misled by the instructions complained of. These instructions are as follows:
“You are instructed that, in order .to convict the respondent, you must be satisfied from the evidence, beyond a reasonable doubt, that between the said dates the respondent not only kept a place on the ground floor of said building in Grand Junction, but that he kept it for the purpose of selling, giving away, or furnishing intoxicating liquors.
“If it should appear to you from the evidence that the respondent at times had kept in his possession intoxicating liquors, purchased by him for his own use, and that on one or more occasions a party or parties helped themselves to such liquor while the respondent was intoxicated to such an extent that he was not aware and did not know .what was going on, then, under those circumstances, respondent would not be guilty of any offense, and, if the evidence in the case shows no more than this, then your verdict must be‘Not guilty.’ * *' * It is provided by the local option law that proof of a single sale of liquor at the time and place alleged in the information shall be prima facie evidence of the keeping of a place where liquors are sold and kept for sale. That does not mean that proof of one or more illicit gifts is sufficient to warrant you in finding beyond a reasonable doubt that the respondent kept a place for the sale of intoxicating liquors, as alleged in the information, if, under all the facts and circumstances in the case, you are not satisfied beyond a reasonable doubt that he did keep a place for the illegal selling of liquors. And, if you are not so satisfied, then, notwithstanding you may find it to be proved that the respondent did on one or two occasions give away liquor, you would not be at liberty to find him guilty. The law provides that proof of a single sale within the time covered by the information shall be presumptive evidence that the respondent did keep a place where intoxicating liquor was sold or kept for sale. You should not understand, however, that such proof is conclusive evidence thereof. And if, in yiew of all the other facts and circumstances in the case, you are not satisfied beyond a reasonable doubt that the respondent, between the dates alleged in the information, kept a place as charged therein, for the sale, giving away, or furnishing of liquor, then you should acquit.”
Error is assigned upon the refusal to give certain other requests. We think they are sufficiently covered by the oral charge.
Conviction affirmed.
The other Justices concurred. | [
22,
24,
5,
2,
-46,
-26,
-16,
65,
-46,
68,
22,
-17,
14,
17,
75,
-52,
17,
40,
1,
-47,
38,
5,
-25,
11,
5,
-43,
-10,
66,
-12,
2,
12,
40,
4,
-23,
36,
3,
10,
9,
15,
0,
-25,
29,
3,
24,
-7,
2,
-56,
-55,
25,
-13,
51,
-8,
30,
-33,
43,
-8,
-24,
25,
4,
60,
37,
0,
-18,
-27,
-10,
-65,
-13,
-20,
-30,
-39,
-5,
-26,
-22,
-11,
30,
-33,
-4,
29,
-8,
36,
0,
-14,
49,
27,
4,
-6,
39,
-18,
14,
-43,
33,
-27,
-15,
-18,
3,
-28,
38,
63,
44,
-2,
4,
-28,
-45,
15,
29,
6,
-30,
17,
-39,
-28,
18,
-25,
46,
-5,
-47,
-21,
-10,
-33,
-62,
-36,
80,
-14,
65,
3,
0,
-25,
40,
-24,
-38,
-17,
51,
-1,
-30,
-38,
-2,
-2,
-42,
39,
25,
-11,
20,
35,
35,
-10,
11,
22,
0,
44,
-39,
28,
-39,
39,
2,
-15,
-8,
8,
24,
-54,
28,
-25,
-32,
54,
-32,
-44,
3,
-19,
-23,
-44,
-43,
-16,
-13,
-8,
-14,
36,
45,
-9,
27,
-42,
-34,
-23,
-12,
18,
2,
36,
43,
-10,
-27,
-1,
-22,
-26,
-35,
13,
2,
8,
25,
26,
-11,
1,
45,
-45,
-33,
-32,
-7,
-8,
31,
3,
-51,
-16,
-18,
19,
-36,
29,
-9,
-57,
-15,
-39,
-57,
-34,
11,
-8,
-56,
-11,
1,
6,
-7,
-48,
12,
15,
-46,
22,
-49,
-5,
19,
8,
21,
-44,
31,
-49,
13,
47,
-22,
3,
-39,
-47,
-6,
-6,
-11,
5,
-14,
37,
5,
-19,
-5,
61,
-44,
-43,
35,
-11,
-33,
-7,
-10,
57,
27,
7,
-18,
-31,
32,
22,
-37,
66,
-9,
-27,
-6,
16,
16,
0,
-12,
19,
-31,
27,
-17,
11,
67,
14,
-32,
16,
-36,
35,
6,
3,
66,
10,
-30,
-5,
48,
13,
14,
56,
-2,
-10,
43,
13,
19,
42,
-50,
-17,
16,
25,
-78,
-32,
0,
-7,
-34,
51,
19,
16,
6,
0,
9,
-48,
-28,
-11,
31,
-54,
-8,
-66,
25,
-69,
-22,
0,
3,
33,
-3,
17,
-39,
8,
37,
-39,
-4,
20,
31,
-23,
-11,
-9,
0,
18,
-17,
-8,
-12,
-37,
-1,
1,
25,
18,
40,
-6,
-38,
-12,
30,
-40,
23,
-8,
0,
11,
24,
-25,
-28,
-18,
30,
-7,
1,
-21,
-9,
35,
-33,
-59,
-9,
-4,
-28,
-3,
-19,
1,
38,
-29,
-7,
59,
-21,
-37,
-40,
51,
-2,
-4,
6,
10,
-28,
-9,
-4,
-6,
51,
-52,
-71,
23,
44,
-39,
-37,
8,
3,
7,
39,
11,
-19,
27,
30,
29,
-5,
2,
2,
24,
-18,
-3,
14,
9,
12,
16,
20,
-57,
-12,
70,
10,
-1,
-3,
-34,
18,
5,
-37,
2,
20,
-4,
20,
-14,
-68,
-39,
-37,
22,
-7,
1,
-31,
19,
21,
0,
-28,
34,
-36,
0,
25,
72,
64,
-14,
40,
11,
56,
34,
-25,
-40,
37,
-23,
-24,
-78,
-9,
-16,
-22,
-8,
35,
-22,
-35,
24,
42,
25,
53,
15,
20,
48,
52,
-19,
-31,
-11,
-22,
-21,
-8,
-2,
67,
-11,
15,
-8,
-37,
6,
36,
0,
-39,
26,
-25,
-3,
-35,
-31,
3,
22,
12,
11,
60,
52,
-28,
14,
-13,
-26,
-12,
-38,
-12,
-16,
-43,
-12,
26,
-47,
-42,
-24,
-20,
17,
19,
-12,
-11,
-39,
17,
19,
13,
-33,
35,
24,
50,
-16,
30,
10,
20,
1,
12,
43,
-4,
32,
-2,
-28,
15,
22,
-13,
24,
3,
11,
-23,
-2,
-51,
-32,
-33,
-11,
-50,
-17,
18,
-22,
22,
-34,
0,
2,
54,
17,
4,
-26,
24,
0,
-55,
-9,
7,
8,
1,
26,
5,
0,
34,
-8,
-26,
11,
-12,
13,
-29,
-26,
-30,
35,
-11,
-3,
-11,
-35,
-7,
-16,
-19,
61,
2,
-19,
16,
5,
45,
-12,
-8,
4,
-38,
-1,
42,
25,
24,
-18,
7,
42,
-4,
-89,
-18,
70,
6,
6,
-32,
-23,
38,
17,
3,
0,
47,
-12,
-73,
-14,
16,
-20,
-20,
43,
-14,
20,
-40,
-22,
16,
-7,
-23,
18,
29,
44,
-4,
49,
17,
-39,
-28,
-26,
30,
-1,
23,
-21,
-11,
-32,
9,
-27,
4,
-16,
-1,
51,
32,
35,
40,
-30,
-13,
11,
-16,
-36,
-11,
33,
25,
-8,
3,
1,
-12,
18,
-16,
-44,
39,
-39,
24,
39,
-13,
-17,
21,
19,
-3,
25,
1,
21,
-28,
28,
0,
11,
-11,
-25,
21,
-66,
-6,
3,
21,
-6,
40,
-63,
-22,
5,
28,
28,
7,
11,
-12,
-20,
-32,
13,
-33,
10,
-52,
-28,
24,
-8,
34,
16,
18,
35,
-13,
-29,
22,
-19,
-10,
22,
32,
7,
-11,
-39,
28,
-19,
-33,
28,
12,
-11,
21,
6,
20,
-7,
17,
50,
32,
32,
43,
9,
13,
37,
7,
-20,
-67,
-35,
0,
40,
-70,
-11,
-27,
24,
-11,
15,
12,
4,
-32,
-37,
19,
-21,
-27,
47,
-21,
-15,
34,
13,
10,
-14,
-26,
-3,
3,
-12,
-11,
-23,
35,
14,
0,
-3,
-15,
48,
-7,
4,
-11,
23,
-25,
-14,
-7,
-15,
20,
42,
-7,
20,
20,
-3,
-6,
-32,
29,
-9,
0,
-25,
-42,
-38,
8,
-13,
-22,
-16,
25,
-2,
-3,
-56,
3,
-52,
9,
-20,
-22,
-21,
2,
-24,
-4,
4,
24,
-8,
-8,
-22,
-13,
-16,
3,
22,
15,
57,
12,
-28,
-15,
-14,
-32,
26,
22,
52,
-1,
-22,
9,
3,
32,
3,
50,
52,
0,
16,
39,
-39,
-16,
-42,
-5,
30,
-12,
-12,
13,
-1,
14,
33,
-52,
35,
-13,
-14,
-25,
-7,
18,
-17,
20,
-1,
41,
17,
0,
-18,
-18,
6,
53,
12,
-1,
56,
-14,
-15,
16,
-31,
38,
-21,
-9,
-20,
-12,
28,
54,
-61,
42,
24,
9,
-2,
-6,
-23,
-5,
-23,
20,
-16,
-26,
-1,
48,
-18,
35,
30,
-11,
33,
-11,
12,
-7,
-21,
-26,
11,
-63,
-1,
19,
-4,
-36,
44,
-13,
-25,
25,
-33,
-57,
-3,
-10,
32,
-21,
15,
-7,
18,
2,
-39,
-28,
28,
10,
19,
-14,
-28,
-15,
12,
-51,
72,
2,
67,
-11,
39,
-14,
102,
28,
41,
-9,
0,
6,
-16,
22,
16,
5,
22,
17,
-27,
0,
32,
-3,
0,
-6,
-16,
-6,
-6,
36,
15,
-23,
10,
-36,
-6,
12,
9,
-63,
-31,
-56,
10,
-12,
-37,
13,
-23,
-61,
-28,
38,
-31,
30,
35,
-42,
-54,
-87,
-58,
43,
39,
-47,
10,
5,
38,
-32,
-9,
4,
69,
-10,
24
] |
Montgomery, J.
This action is brought to recover a. tax assessed in the year 1894 against Ellen Marcier. The defendant contested the case on two grounds: First, that she was not a resident of Detroit at the time of the assessment; and, second, that the assessment against Ellen Marcier cannot be held as an assessment against the defendant. The first question was determined in favor of the city by the jury. At the trial the circuit judge charged that the error in naming the defendant on the tax roll was not fatal. On a motion for a new trial the circuit judge held, in effect, that the assessment could only be sustained if the name in which the assessment was made was in law the name of the defendant, and also held that, under the rule of idem sonans, the names were identical. We think the holding of the court is supported by the following authorities: Boyce v. Danz, 29 Mich. 146; People v. Gosch, 82 Mich. 22; People v. Hildebrand, 71 Mich. 313.
It is urged that the court erred in not directing a verdict for the defendant, for the reason that there is no proof that the defendant was the person intended by the assessing officer. The answer to this is that, if the name used is in law the name of the defendant, the presumption is that she was the person intended.
We have considered the other questions raised, but we think no error was committed to the prejudice of defendant. Judgment will be affirmed.
The other Justices concurred. | [
-41,
16,
-8,
-31,
-46,
-5,
20,
-44,
-39,
29,
-5,
-25,
15,
35,
8,
-29,
3,
-22,
-47,
-47,
7,
5,
-18,
43,
-22,
13,
53,
-41,
-2,
9,
-17,
-27,
-22,
58,
7,
-19,
22,
-29,
12,
14,
-63,
-12,
-48,
-22,
-42,
16,
13,
16,
44,
-41,
-20,
-43,
-29,
11,
24,
-32,
21,
-19,
-20,
-10,
-14,
7,
-15,
-19,
12,
-49,
13,
-29,
-3,
-39,
-6,
11,
-14,
-48,
-5,
-45,
-20,
-13,
-26,
0,
-36,
-37,
6,
27,
35,
-16,
9,
-34,
-13,
-21,
23,
4,
-10,
-11,
26,
11,
18,
-19,
18,
-16,
-16,
40,
-3,
38,
-16,
-29,
-44,
-9,
20,
-33,
69,
28,
5,
-10,
-25,
-7,
2,
-7,
-15,
-21,
-8,
-41,
7,
-4,
0,
26,
-30,
-23,
44,
-2,
29,
17,
7,
-6,
-10,
30,
-19,
15,
38,
25,
42,
-3,
23,
-2,
36,
26,
0,
-8,
20,
-46,
-29,
55,
50,
46,
22,
11,
1,
-63,
22,
-26,
-4,
10,
8,
-16,
6,
-6,
9,
28,
-7,
-36,
18,
-8,
16,
51,
21,
45,
-30,
14,
14,
-26,
-20,
0,
-26,
-17,
-3,
-23,
9,
-23,
-23,
-72,
3,
18,
-15,
-28,
23,
48,
13,
27,
3,
-20,
5,
-20,
-10,
33,
-13,
-20,
19,
-60,
-17,
19,
-50,
-16,
25,
-24,
11,
2,
1,
-35,
-18,
21,
22,
0,
-10,
4,
-15,
-53,
7,
47,
19,
14,
16,
-12,
1,
-15,
-25,
7,
53,
13,
-10,
-45,
-3,
10,
35,
21,
-15,
31,
-6,
-3,
8,
43,
-7,
-30,
-3,
-2,
-56,
-35,
26,
-19,
22,
-7,
-45,
45,
26,
-57,
-44,
2,
46,
51,
-23,
-39,
0,
14,
-18,
21,
-11,
-63,
5,
-22,
-2,
61,
-33,
21,
-9,
4,
-37,
2,
-25,
22,
19,
38,
36,
-18,
17,
-43,
23,
23,
42,
-9,
-3,
9,
-4,
18,
36,
38,
-1,
-31,
-15,
29,
23,
15,
-20,
17,
9,
27,
3,
23,
10,
-17,
12,
13,
-22,
0,
0,
4,
-32,
28,
16,
-46,
-14,
-26,
-4,
68,
18,
13,
-2,
-25,
41,
4,
31,
-50,
18,
-4,
24,
-19,
28,
27,
-88,
-8,
-17,
-3,
0,
13,
4,
59,
41,
-51,
39,
-29,
-10,
20,
20,
28,
41,
-10,
16,
-32,
-63,
2,
77,
1,
12,
1,
-29,
33,
0,
-31,
34,
-43,
-6,
39,
7,
22,
0,
-23,
6,
-46,
1,
-42,
36,
-10,
-27,
10,
1,
15,
-14,
-22,
15,
-6,
-3,
-49,
7,
61,
42,
9,
-48,
-1,
-25,
28,
-3,
40,
0,
15,
51,
-27,
14,
-21,
-5,
-4,
6,
18,
48,
60,
4,
-7,
14,
2,
-11,
31,
65,
-10,
0,
17,
0,
-46,
25,
-21,
-23,
-22,
19,
-27,
-15,
11,
-74,
-4,
-2,
-32,
-6,
40,
17,
-12,
25,
-7,
0,
-27,
-3,
19,
17,
-66,
-12,
-30,
-10,
-24,
-24,
-16,
-10,
6,
-29,
5,
-9,
2,
-25,
-21,
-6,
-24,
20,
38,
12,
-7,
16,
48,
-2,
-33,
1,
-11,
-33,
34,
6,
-53,
-45,
-20,
10,
-9,
-28,
26,
-3,
-9,
-24,
0,
-8,
-3,
-4,
27,
12,
-24,
0,
-5,
28,
-4,
10,
9,
-23,
14,
9,
47,
-4,
-45,
-7,
31,
75,
23,
-27,
-23,
-19,
9,
6,
32,
49,
-35,
8,
63,
64,
46,
-5,
-23,
13,
11,
39,
11,
4,
3,
6,
22,
12,
-12,
-5,
9,
3,
-16,
-11,
-12,
-1,
-35,
-4,
-45,
-9,
-31,
2,
-22,
2,
-4,
-20,
12,
4,
-16,
71,
-7,
13,
-66,
20,
-43,
-31,
-9,
3,
-7,
-50,
24,
-15,
-14,
-17,
-41,
6,
34,
5,
-43,
20,
10,
-24,
12,
30,
2,
-28,
-18,
-25,
20,
-29,
-15,
-59,
-5,
51,
-42,
27,
55,
-10,
6,
-8,
-13,
-20,
-41,
27,
-55,
51,
31,
2,
11,
22,
65,
-22,
-5,
-15,
11,
52,
40,
16,
18,
-4,
2,
32,
-45,
-38,
-40,
30,
0,
-2,
36,
-49,
15,
10,
3,
-16,
0,
16,
-12,
21,
27,
20,
0,
-26,
17,
12,
-15,
13,
25,
8,
-22,
2,
-37,
23,
-42,
-16,
-1,
-25,
40,
19,
63,
-8,
14,
1,
-38,
47,
-20,
5,
-30,
6,
-47,
-14,
-15,
9,
7,
20,
28,
-11,
62,
-16,
15,
-23,
-10,
-33,
29,
0,
-5,
-19,
2,
-47,
13,
-14,
4,
18,
-5,
0,
-7,
13,
-3,
48,
58,
-4,
12,
18,
2,
-11,
-60,
16,
28,
-23,
-31,
-23,
0,
-25,
5,
21,
-24,
-66,
-26,
13,
-61,
39,
-18,
-28,
-65,
13,
5,
6,
24,
26,
17,
11,
25,
-5,
-27,
-15,
3,
-17,
20,
-47,
-10,
-18,
-25,
19,
2,
34,
72,
7,
57,
39,
20,
-21,
6,
14,
12,
-30,
-25,
-18,
-14,
-28,
-11,
-17,
15,
-6,
-9,
21,
12,
-31,
29,
0,
-19,
-7,
25,
-53,
13,
3,
-21,
85,
20,
0,
10,
-58,
-9,
46,
-30,
-44,
2,
7,
14,
-34,
15,
26,
20,
-17,
6,
0,
-4,
30,
25,
11,
34,
11,
55,
-27,
-6,
-19,
40,
30,
3,
-41,
-53,
9,
-23,
-55,
59,
11,
-27,
-19,
18,
-9,
-4,
13,
18,
-10,
9,
3,
12,
27,
9,
2,
36,
21,
21,
-27,
49,
-9,
-25,
13,
-18,
-47,
12,
-4,
27,
-15,
0,
0,
-13,
-20,
71,
8,
41,
-2,
25,
20,
2,
2,
49,
32,
2,
-53,
-20,
6,
68,
50,
-49,
39,
18,
-29,
60,
-54,
51,
-24,
19,
6,
11,
-1,
17,
3,
-15,
-6,
3,
-27,
32,
46,
-31,
-28,
-23,
34,
34,
24,
-8,
-26,
-2,
-42,
-1,
24,
-53,
0,
6,
-10,
10,
-29,
-20,
-24,
-22,
-15,
15,
36,
-29,
-28,
18,
4,
4,
-73,
1,
7,
0,
5,
18,
-3,
-33,
-52,
-50,
17,
21,
-51,
31,
-48,
20,
-12,
3,
8,
11,
28,
-18,
-2,
-10,
2,
-9,
-26,
6,
-2,
5,
-25,
17,
-13,
23,
3,
-13,
35,
47,
-19,
5,
-54,
-10,
-47,
13,
15,
50,
5,
22,
-21,
8,
-12,
-25,
49,
4,
-54,
4,
20,
-39,
15,
-21,
-20,
-2,
3,
3,
-19,
17,
-24,
15,
33,
-53,
-21,
-24,
-40,
-37,
-25,
15,
3,
-10,
4,
10,
-29,
-4,
13,
-21,
-18,
32,
-3,
-5,
-10,
-47,
58,
3,
0,
-17,
-23,
-8,
-14,
26,
-19,
12,
-18,
49,
-48,
-11,
15,
46,
-8,
7
] |
Hooker, J.
The relator obtained from the circuit court a peremptory writ of mandamus requiring the respondent to pay a certain drain order alleged to have been purchased from the payee named therein after presentation and demand of payment by the holder and refusal by the respondent. The respondent has brought the case to this court by certiorari.
The return of the treasurer to the order to show cause, issued by the circuit court, shows that the drain in question was laid out by a township drain commissioner, but that his office was abolished by law before payment was made, and the matter passed under the control of the county drain commissioner. The township commissioner let a contract to Daniel Bolton to make the required excavation, and lay 13-inch tile in a section of said drain. On March 16, 1898, the relator presented the order in dispute for payment, which was refused, although there was then, and is now, sufficient money in said drain fund, of said drain, to pay the same. Respondent’s reason for not paying it was that he had been previously notified by the county drain commissioner to refuse payment until further notice, because the work for which the order was given had not been completed. Respondent shows, further, on information and belief, that Bolton did some work upon such contract, under the township commissioner, who verbally reported it to the county drain commissioner as accepted; that the township commissioner’s office was abolished by Act No. 254, Pub. Acts 1897, taking effect June 2, 1897; that the moneys assessed to pay for the drain were paid to the respondent; that the order was of necessity, and in accord with the act, issued by the county drain commissioner, who had no personal knowledge of the work, and that, after issuing the order, he learned that the contract was not completed, whereupon he notified the township treasurer not to accept the order in payment of the drain tax, but to treat it as wholly void, which he accordingly did. Respondent also refused payment of said order to Bolton some time in January or February. The return states, further, that, by reason of the covering of the tile, it was impossible to ascertain, from an inspection, whether or not the work had been properly done, but that in the fall of 1897 the water did not run through said drain, and, upon excavating, it was found that the tile had been laid 13 inches above the prescribed grade, which practically destroyed its efficacy, and made it necessary to reconstruct that section of the drain; that Bolton has been repeatedly notified to place said tile upon the grade, and informed that, upon his doing so, no objection would be made to payment, but Bolton has refused to do so.
Upon the part of the relator it is contended that the acceptance of the construction of a drain contract is a judicial determination, and, having exercised the power, the commissioner cannot revoke or repudiate his action. It is contended, further, that the treasurer had no discretion, but was legally bound to pay the order upon presentation, and that, if the contract was not performed, the remedy is on the bond given by the contractor.
Settlements of contract rights by public authorities and officers have not usually the force of judicial determinations. They are more in the nature of adjustments between parties, and are subject to defense, when fraud or mistake can be shown, as in cases between private parties. See 15 Am. & Eng. Enc. Law, 1220, and cases cited. In the case of People v. Supervisors of Manistee County, 33 Mich. 497, this court held that a board of supervisors might reconsider a claim after allowance, and that it would not issue a mandamus to compel the clerk of the board to issue his warrant upon the claim as first allowed.
Again, the record clearly shows that Bolton did not perform his contract, and that he is not entitled to payment, and in this respect his assignee is in no better position. The writ of mandamus is a discretionary writ, and, while it may issue where there is a clear legal right, a court should always refuse it where the record shows the injustice of the relator’s claim. This it may do, and should do, in the interest of fair dealing and good morals, whenever the claim is tainted with fraud. Merrill, Mand. § 68.
The order of the circuit court is reversed, and the writ is denied, with costs.
The other Justices concurred. | [
-15,
1,
18,
-3,
-23,
23,
-3,
-39,
-7,
28,
30,
-71,
4,
21,
-18,
-25,
19,
-21,
2,
23,
-14,
-58,
64,
-3,
-14,
54,
37,
-8,
-17,
-3,
-15,
-19,
0,
48,
42,
12,
7,
-30,
43,
12,
-26,
24,
-7,
-60,
13,
-3,
16,
-15,
-13,
-55,
-16,
19,
-51,
11,
-18,
-13,
7,
-32,
-17,
-27,
-34,
-17,
1,
12,
20,
36,
-43,
-39,
7,
23,
-27,
7,
11,
-41,
50,
34,
-21,
-9,
-28,
42,
-10,
24,
5,
24,
-16,
0,
-31,
27,
48,
6,
6,
3,
-12,
46,
0,
24,
5,
-6,
-1,
15,
30,
-3,
-10,
-2,
2,
-19,
11,
-64,
-68,
18,
9,
-24,
49,
-82,
-35,
-38,
-35,
-61,
3,
-54,
21,
-30,
36,
-13,
-26,
17,
4,
-47,
-30,
-25,
-32,
-12,
27,
-10,
40,
6,
-17,
2,
51,
60,
36,
27,
5,
1,
14,
-27,
46,
12,
-14,
-3,
-1,
1,
67,
4,
15,
0,
25,
-52,
26,
9,
32,
41,
-4,
-48,
-33,
13,
-8,
20,
4,
18,
57,
63,
-43,
-13,
36,
-76,
31,
14,
45,
-2,
17,
-30,
5,
16,
38,
-26,
34,
-26,
58,
-6,
1,
-43,
-16,
-19,
43,
8,
-31,
-9,
17,
3,
-5,
10,
-15,
-28,
-14,
-27,
12,
-7,
-61,
14,
-1,
-5,
-4,
39,
-55,
-9,
17,
33,
-11,
26,
34,
10,
30,
4,
-51,
19,
6,
-4,
-17,
24,
21,
-26,
30,
-4,
20,
23,
-6,
21,
11,
46,
-41,
22,
-29,
-15,
26,
-10,
-38,
-24,
-51,
1,
6,
-20,
-7,
-25,
-34,
-12,
-54,
23,
-17,
-10,
45,
35,
22,
6,
-12,
-43,
11,
14,
21,
-9,
-24,
31,
44,
-29,
-32,
-3,
-27,
26,
-40,
16,
-47,
-11,
-39,
-13,
9,
-6,
-44,
28,
-17,
41,
-18,
-22,
-12,
26,
35,
21,
19,
-60,
36,
-40,
-12,
-43,
37,
7,
28,
19,
9,
33,
32,
22,
57,
-11,
9,
20,
-11,
37,
11,
-31,
-17,
25,
-6,
3,
0,
-16,
-7,
36,
20,
7,
-5,
-12,
13,
5,
-10,
29,
29,
20,
8,
1,
-1,
-18,
0,
6,
-21,
-23,
2,
-6,
-31,
-31,
-37,
-5,
33,
35,
5,
29,
-8,
14,
-36,
-36,
-25,
24,
29,
0,
-84,
-62,
12,
-39,
-27,
-20,
-2,
13,
32,
-26,
4,
17,
7,
4,
0,
-10,
-38,
17,
15,
-37,
-34,
-32,
17,
-1,
6,
7,
-45,
-12,
3,
-1,
24,
31,
-30,
16,
17,
20,
-15,
16,
-2,
-7,
-10,
36,
-7,
69,
-2,
-9,
-6,
1,
54,
0,
7,
-7,
-6,
-1,
53,
4,
33,
-6,
9,
-19,
54,
-39,
53,
-27,
23,
42,
-18,
13,
12,
-34,
37,
-32,
-1,
47,
-31,
-5,
-17,
-2,
-6,
23,
20,
7,
-3,
6,
19,
1,
20,
41,
19,
10,
27,
25,
-14,
38,
5,
-1,
58,
-32,
-22,
3,
-21,
6,
-10,
27,
-3,
46,
-5,
0,
-50,
35,
21,
-13,
5,
14,
49,
-35,
1,
-19,
42,
-28,
-40,
25,
0,
-38,
-32,
-13,
-18,
-8,
-12,
-11,
-68,
9,
83,
17,
-42,
-19,
34,
38,
40,
11,
10,
-13,
-24,
-21,
5,
9,
-7,
6,
-19,
32,
52,
-31,
12,
55,
1,
-14,
-5,
-13,
-39,
-19,
-49,
-34,
18,
38,
-39,
51,
-26,
-19,
-12,
-15,
1,
-41,
-11,
-22,
-13,
2,
-20,
-43,
-18,
31,
54,
58,
-30,
37,
-28,
3,
-35,
-7,
-2,
-15,
28,
-17,
-37,
12,
-41,
-39,
-10,
28,
-26,
3,
16,
-10,
28,
-23,
0,
-4,
20,
0,
24,
26,
11,
4,
37,
7,
-63,
-60,
34,
41,
-23,
-39,
-21,
-45,
47,
5,
9,
-13,
8,
-4,
-26,
-7,
-9,
-8,
35,
12,
-30,
31,
-6,
-23,
12,
4,
-25,
19,
17,
-17,
24,
-10,
-23,
22,
11,
-9,
-11,
28,
-6,
51,
-7,
-71,
26,
4,
-9,
32,
-6,
12,
3,
-37,
12,
-26,
-27,
4,
-28,
-1,
20,
30,
-1,
-27,
12,
4,
-15,
21,
-13,
-6,
-44,
-43,
-59,
29,
4,
22,
17,
11,
-24,
14,
41,
8,
8,
-50,
-20,
-23,
44,
-7,
21,
-40,
7,
-3,
23,
-13,
30,
35,
17,
-32,
14,
-32,
15,
-22,
-11,
-91,
3,
21,
3,
0,
26,
-3,
-7,
2,
-4,
2,
32,
29,
-24,
-23,
4,
-20,
-18,
-3,
47,
-2,
33,
-25,
-59,
-6,
7,
-16,
-22,
67,
3,
-9,
2,
-29,
67,
-26,
-13,
-21,
-23,
41,
22,
6,
16,
13,
-22,
0,
12,
-54,
-50,
40,
-16,
-23,
-22,
-40,
-49,
-13,
33,
-3,
10,
-1,
7,
45,
-22,
5,
11,
-8,
22,
-25,
-29,
-15,
-11,
-41,
19,
-2,
-44,
24,
31,
-26,
-34,
-15,
-8,
21,
-22,
9,
-9,
22,
11,
12,
29,
-36,
18,
-2,
-8,
-21,
-21,
2,
-1,
-2,
-17,
-38,
35,
7,
-34,
4,
17,
-50,
15,
-28,
-24,
42,
-20,
-36,
53,
-14,
-11,
18,
-3,
-48,
-38,
-49,
-49,
16,
-8,
1,
-18,
-6,
5,
60,
24,
7,
25,
26,
-16,
-19,
-18,
-5,
-17,
14,
19,
-28,
10,
14,
-15,
16,
-13,
-6,
-16,
27,
11,
-31,
-11,
-3,
7,
-9,
-16,
53,
51,
-28,
-4,
7,
-16,
-17,
-1,
-10,
0,
0,
-16,
-44,
-4,
-28,
-53,
29,
-8,
59,
-30,
52,
-7,
24,
-18,
1,
-8,
-11,
3,
-27,
9,
-17,
58,
54,
14,
2,
-7,
-2,
4,
-16,
31,
-28,
54,
13,
-42,
-41,
1,
5,
23,
-27,
38,
-28,
-76,
24,
31,
-12,
-38,
-22,
-8,
-42,
39,
85,
-7,
10,
-27,
-6,
15,
-54,
-12,
-8,
-24,
4,
19,
-13,
4,
-21,
15,
-23,
-11,
21,
-4,
76,
-7,
-22,
-31,
-19,
-13,
-9,
4,
-2,
12,
38,
19,
0,
7,
7,
-16,
-32,
6,
-27,
-2,
17,
28,
-26,
26,
42,
46,
-33,
19,
-27,
29,
-43,
47,
-25,
-43,
24,
1,
10,
4,
2,
59,
39,
-20,
11,
35,
18,
30,
30,
-33,
17,
-30,
-25,
-8,
15,
14,
-8,
6,
29,
4,
12,
-20,
27,
15,
21,
-24,
-25,
-7,
-31,
9,
-15,
-7,
-29,
10,
-27,
-27,
25,
-28,
43,
14,
-42,
-19,
-36,
46,
27,
-6,
-11,
0,
-1,
-54,
-31,
36,
-17,
68,
-10,
-15,
59,
-6,
-24,
38,
50,
20,
-4,
0,
20,
31,
27,
-37,
-2,
-38,
32,
11,
-8,
21,
-58,
-41,
4
] |
Long, J.
It appears that the will of James W. Daley was admitted to probate in the Wayne probate court April 20, 1897. On May 1st following, Thomas O. Fitzpatrick et al. took an appeal from such order, but failed to perfect it by filing in the circuit court within 30 days thereafter a certified copy of the record or proceedings appealed from, as required by section 6782, 3 How. Stat., which provides, among other things, that—
“In case the record herein required to be filed in the circuit court shall not be filed in such court within the time herein directed, such appeal shall cease to be of effect, and the order or decree so appealed from shall stand as though such appeal had not been taken.”
The relator Frank H. Jerome was named as executor in the will, and, after the will was allowed in probate court, filed his bond as such executor, and letters testamentary were issued to him. He thereupon entered upon the discharge of his trust. On July 19, 1897, he filed in the probate court the certificate of the clerk of the circuit court that the record of the proceedings in the probate court and the appeal therefrom had not been filed in the circuit court. On February 21,1898, Thomas C. Fitzpatrick et al. filed in the Wayne circuit court a petition for an allowance of an appeal, under the provisions of section 6784, 2 How. Stat., which provides that—
“If any person aggrieved by any act of the judge of probate shall, from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably.”
The circuit court allowed the appeal, and this application is for a mandamus to compel the respondent to set aside that order, and dismiss the appeal.
The only allegation in the petition for the allowance of the appeal as to the merits of the case is as follows:
“Your petitioners have been advised by their said attorney, after having made to him a full and fair statement of their case, that they have a good defense upon the merits to the application for the allowance of said will, and your petitioners believe such advice to be true.”
It is shown by the petition that the petitioners relied upon their attorney to see that the appeal was filed in the circuit court within the time allowed by the statute, and that they were in no wise at fault that such papers were not filed. This would be a sufficient excuse, under the rule laid down in Merriman v. Jackson Circuit Judge, 96 Mich. 603, and cases there cited. But the question yet remains whether there was any showing made in the court below that “justice requires a revision of the case.” As was said in that case: “Under this section, something more than an excuse for his default is necessary, and that is * * * that justice requires a revision of the case.” In the present case no facts are shown from which the circuit court could find that justice requires such revision. No facts are set forth, and the only allegation is that above quoted. This, certainly, is not a compliance with the statute. The court must have some facts before it in order to determine that question. In the Merriman Case sufficient facts were set forth so that it was found by this court that the matter was within the discretion of the circuit court, and that that discretion had not been abused. This was also found in Sanborn v. St. Clair Circuit Judge, 94 Mich. 526, and Gorton v. Livingston Circuit Judge, 97 Mich. 562. The rule as to what an affidavit of merits must contain was laid down in Thayer v. Swift, Walk. Ch. 384, and it was said: “It is the settled practice of this court, in an affidavit of merits, to require the party to state what such merits are.” Mr. Chancellor Walworth, in Meach v. Chappell, 8 Paige, Ch. 135, laid down the rule as follows:
“It is the settled practice of this court, in an affidavit of merits, to require the party to state what such merits are, so that the court may see that the defense is not merely imaginary, and that the defendant may be in a situation to be prosecuted for perjury if he swears to that which he knows to be false.”
Section 6784, 2 How. Stat., above cited, is identical with the Massachusetts act, in that a showing must be made for an allowance of an appeal from probate court that “justice requires a revision of the case.” In Capen v. Skinner, 139 Mass. 190, it appeared that an appeal was sought to be taken from the probate court, and the peti tion was denied in the circuit. The supreme court affirmed the ruling of the circuit, saying:
“The justice who hears the petition is bound to go further than merely to inquire whether the appellant has a case supported by some testimony which he wishes to present to the court or jury. He is bound to inquire whether, upon the facts proved, substantial justice requires a revision of the decree of the probate court. We do not mean to imply that it is the duty of the presiding justice to try the case fully upon its merits, but he ought to make inquiry so far as to be satisfied that there is a substantial controversy, which ought to be the subject of a full judicial investigation.”
It appears in the present case that the appellants made no contest in the probate court. The showing in the circuit court was not sufficient to warrant the allowance of an appeal. It was not such a showing as the statute contemplates. We do not hold, however, that, where a showing of merits is made, — some facts set forth upon which the circuit judge might fairly pass, — his finding would be disturbed.
The order must issue as prayed, directing the respondent to set aside the order allowing an appeal, and to dismiss the appeal. Relators will recover the costs of this motion against the appellants below.
The other Justices concurred. | [
-17,
8,
18,
-23,
-24,
20,
3,
-17,
28,
37,
-45,
-24,
-18,
2,
-33,
-10,
-23,
-23,
-16,
18,
12,
74,
5,
30,
1,
-48,
-35,
24,
-10,
-24,
-3,
18,
-66,
52,
-1,
-42,
-7,
-48,
22,
14,
-29,
-4,
37,
9,
-59,
-41,
-5,
-12,
6,
-14,
-47,
22,
0,
8,
35,
57,
5,
0,
0,
0,
-13,
11,
-7,
42,
-21,
53,
-4,
-25,
-85,
-3,
14,
-17,
53,
52,
15,
14,
1,
-8,
22,
13,
34,
-22,
-6,
-20,
-10,
3,
18,
21,
7,
37,
-15,
26,
-54,
-4,
-35,
-19,
4,
-19,
11,
20,
-11,
-2,
25,
2,
-23,
-1,
-6,
13,
-68,
31,
31,
-25,
62,
-11,
1,
6,
-12,
-27,
7,
-25,
37,
-38,
23,
-39,
47,
4,
17,
-12,
32,
33,
-8,
34,
11,
-36,
10,
4,
-10,
-51,
18,
-53,
57,
27,
33,
-80,
35,
2,
5,
-26,
12,
-1,
3,
39,
-7,
3,
-2,
18,
47,
-47,
22,
4,
23,
32,
-28,
-27,
-11,
-14,
-39,
-28,
8,
17,
-35,
41,
-17,
-9,
27,
11,
36,
-27,
-17,
-1,
-20,
29,
33,
-69,
10,
-38,
-1,
-8,
-27,
-22,
-5,
-26,
6,
7,
24,
-14,
36,
-5,
23,
7,
-19,
-32,
34,
27,
0,
-27,
-10,
7,
-23,
-13,
-47,
-11,
17,
8,
8,
8,
18,
-32,
-2,
46,
-13,
33,
34,
-32,
18,
12,
-13,
-8,
-33,
-5,
-13,
43,
-24,
31,
19,
-28,
-9,
10,
-57,
-2,
1,
25,
24,
-34,
18,
43,
24,
32,
33,
18,
14,
21,
28,
-20,
46,
-11,
25,
-13,
0,
-8,
19,
24,
-38,
19,
50,
3,
44,
-3,
18,
6,
32,
5,
39,
-36,
37,
-48,
-4,
-32,
-23,
-57,
-1,
-17,
-25,
1,
0,
22,
-51,
-14,
8,
73,
15,
-37,
0,
52,
-9,
26,
3,
-20,
6,
-16,
-15,
24,
-13,
-30,
16,
8,
-47,
-45,
-44,
1,
24,
54,
1,
7,
65,
-2,
-10,
-30,
-1,
-5,
13,
13,
-49,
-25,
49,
0,
-4,
31,
-2,
13,
-24,
-11,
52,
-39,
-12,
20,
34,
-23,
-26,
27,
30,
-12,
21,
36,
-2,
-47,
33,
-45,
21,
46,
8,
11,
-10,
23,
-44,
1,
0,
-31,
-16,
69,
31,
6,
-17,
0,
12,
-26,
-26,
20,
38,
-19,
51,
-7,
3,
-13,
35,
-11,
-20,
-10,
3,
27,
-17,
-49,
-35,
32,
22,
-6,
-3,
24,
-26,
37,
-15,
42,
-14,
-33,
-12,
8,
28,
-10,
-32,
2,
-29,
33,
-31,
17,
-18,
-12,
-75,
3,
12,
30,
14,
28,
-17,
-14,
0,
-7,
48,
-10,
44,
10,
32,
13,
5,
-19,
-3,
-21,
20,
52,
11,
-23,
25,
-3,
26,
27,
40,
30,
0,
-19,
-34,
-4,
-4,
-33,
45,
32,
-13,
-20,
-9,
-26,
-14,
11,
5,
44,
39,
-20,
0,
5,
-11,
27,
14,
0,
92,
-15,
-3,
40,
-26,
16,
5,
-12,
68,
-15,
-40,
-10,
-77,
-9,
-13,
-16,
-8,
-45,
37,
-38,
21,
34,
-14,
25,
43,
-14,
-33,
-57,
8,
-29,
-32,
9,
-50,
-68,
-25,
8,
-7,
-44,
-36,
-20,
-9,
18,
31,
29,
1,
-14,
-13,
-35,
16,
45,
3,
-18,
-14,
51,
35,
43,
50,
8,
19,
-82,
18,
-26,
-59,
8,
-32,
44,
-19,
-5,
4,
4,
2,
-20,
36,
-56,
-22,
13,
-51,
0,
-37,
7,
16,
34,
13,
49,
-19,
22,
38,
49,
1,
-43,
22,
-50,
-27,
-18,
-12,
-12,
-6,
-37,
8,
0,
48,
-26,
50,
-9,
12,
-17,
-7,
-13,
-53,
-23,
-33,
-30,
10,
-12,
26,
31,
16,
-2,
-2,
-47,
-12,
24,
2,
-53,
36,
6,
-30,
3,
47,
-2,
-11,
-2,
51,
-4,
18,
-41,
-45,
2,
70,
13,
-19,
6,
33,
-8,
-31,
55,
-18,
-1,
21,
-21,
-16,
0,
-76,
-25,
-45,
24,
-10,
-10,
3,
8,
-8,
12,
18,
-25,
-8,
-35,
52,
-17,
-11,
56,
18,
-8,
19,
42,
-21,
24,
-51,
12,
-18,
0,
-28,
25,
-1,
-40,
61,
-13,
-36,
-52,
6,
12,
-41,
39,
-14,
-6,
-33,
26,
92,
29,
18,
-10,
40,
-2,
-44,
-10,
21,
53,
-1,
-1,
17,
5,
13,
0,
-10,
-19,
-25,
4,
-39,
11,
34,
7,
-7,
10,
19,
0,
17,
-32,
-24,
5,
-22,
22,
-38,
12,
-3,
-26,
-10,
22,
35,
61,
22,
-7,
-9,
-15,
27,
54,
-23,
-18,
43,
8,
-6,
-83,
-48,
17,
-25,
-26,
18,
-28,
47,
-15,
26,
-37,
16,
-52,
0,
11,
-13,
72,
-19,
-11,
-9,
-60,
16,
-39,
-35,
-5,
-32,
7,
23,
-29,
-15,
49,
-16,
-25,
-4,
13,
0,
-14,
15,
26,
6,
14,
38,
30,
15,
43,
40,
-10,
0,
-58,
8,
-13,
7,
0,
-27,
22,
-9,
-15,
41,
28,
-12,
-4,
-1,
10,
53,
-10,
-8,
0,
-11,
5,
35,
-2,
-24,
26,
9,
-9,
4,
-24,
-21,
-34,
4,
-13,
2,
-61,
-52,
-8,
14,
-2,
45,
-74,
24,
7,
26,
-47,
25,
29,
-9,
0,
-10,
35,
-29,
-14,
43,
60,
-42,
-29,
-45,
-12,
-1,
-4,
-22,
-37,
-2,
35,
32,
21,
-33,
23,
3,
10,
-17,
49,
-27,
-34,
36,
-27,
13,
-24,
29,
52,
-34,
-36,
-41,
-24,
-34,
30,
-4,
37,
9,
-12,
-15,
36,
-25,
-11,
-65,
3,
-34,
-18,
35,
-54,
-27,
-34,
71,
32,
20,
-36,
17,
7,
-34,
-46,
-24,
-1,
-37,
-17,
-38,
-7,
-6,
23,
5,
-2,
-10,
27,
3,
-25,
-21,
8,
-7,
10,
22,
-15,
-9,
33,
25,
21,
-22,
40,
22,
-18,
-33,
-22,
13,
2,
-32,
-72,
54,
6,
10,
-7,
2,
12,
15,
18,
0,
-48,
-11,
-30,
-13,
3,
-17,
33,
-20,
-10,
-3,
14,
-50,
-20,
12,
-33,
41,
1,
19,
34,
-28,
-37,
-26,
-54,
-50,
-34,
14,
-30,
40,
-4,
57,
8,
-34,
-21,
-29,
30,
22,
-21,
-38,
13,
-7,
-36,
-8,
11,
-6,
17,
-21,
-36,
-14,
20,
-10,
33,
-21,
24,
21,
38,
-4,
-17,
-4,
21,
-47,
-35,
-8,
4,
-11,
-13,
67,
-48,
6,
-34,
14,
3,
-22,
10,
-6,
-3,
41,
-32,
-40,
-38,
42,
22,
-40,
9,
8,
54,
-18,
56,
-29,
45,
11,
19,
21,
34,
14,
-15,
3,
21,
-50,
-10,
-8,
24,
-25,
43,
-17,
0,
33,
-18,
-33,
-21,
25,
-54,
13,
9
] |
Montgomery, J.
The plaintiffs are distillers. The defendant Fisher is a saloon keeper at Fowlerville. Liquors were sold and delivered by the plaintiffs to Fisher from 1895 to August, 1897, and on these sales a balance was found by the jury to be due, amounting to $334.44. The principal question in controversy on the trial was whether the defendant Weller was a partner of Fisher in the business. There was abundant testimony tending to show, not only a holding out of Weller as a partner to plaintiffs’ agent, but a partnership in fact. The questions arising on this testimony were properly submitted to the jury, unless the contention of defendants that public policy forbids recovery is sound.
It appears that Weller’s name did not appear in connection with the business as a principal, but that he acted as bondsman for Fisher. The contention is now made that, as the conduct of the business in the name of Fisher was calculated to deceive the public officers, a partnership cannot be said to have existed, as partnerships are confined to lawful business. This point does not appear to have been distinctly made by any request to charge; but, treating it as properly in the case, we think it cannot be sustained. The purchase of plaintiffs’ goods by these two defendants jointly and as partners was lawful. It does not appear that the plaintiffs participated in any affirmative way in the evasion of the law by defendants, or, at the most, it does not appear conclusively that they did, and there was no request to submit any such question to the jury. Mere knowledge that the purchaser of goods is engaged in an unlawful business will not prevent recovery, if there be no affirmative act by the vendor in furtherance of the illegal transaction. Webber v. Donnelly, 33 Mich. 469; Gambs v. Sutherland’s Estate, 101 Mich. 355.
But one other question requires special mention. The plaintiffs offered, as evidence of partnership in fact, the declarations of both the defendants, made at different times. It is claimed that this was not competent. The court carefully limited the use of this testimony, and instructed the jury that it could not be considered except as evidence against the defendant making the particular declaration. As thus limited, the testimony was competent. Armstrong v. Potter, 103 Mich. 409; Edwards v. Tracy, 62 Pa. St. 378; 1 Am. & Eng. Enc. Law (2d Ed.), 711.
We have examined the other assignments of error, and find none of them well grounded. The case appears to have been very carefully tried by the circuit judge. The questions presented were submitted to the jury in a very clear charge.
The judgment will be affirmed, with costs.
The other Justices concurred. | [
35,
31,
-20,
47,
-17,
-5,
-5,
11,
-29,
39,
-11,
-54,
47,
19,
57,
-12,
19,
-18,
10,
-49,
33,
-31,
-7,
3,
-6,
0,
-2,
41,
-14,
-5,
32,
5,
-36,
25,
0,
30,
16,
28,
18,
-2,
-17,
47,
44,
-13,
-10,
16,
-23,
-51,
24,
-20,
52,
-76,
31,
4,
-8,
-55,
3,
29,
1,
17,
7,
2,
31,
-20,
-20,
-22,
0,
-21,
-10,
-55,
-24,
12,
-15,
43,
12,
-51,
-4,
-34,
46,
-5,
-8,
-22,
73,
-15,
-37,
33,
-6,
-21,
39,
-11,
23,
14,
-31,
21,
6,
-21,
-6,
10,
13,
-7,
42,
-29,
-51,
-8,
-17,
47,
-25,
7,
-14,
18,
17,
-3,
36,
-36,
-40,
-62,
29,
-36,
-37,
15,
14,
-2,
75,
21,
3,
-44,
-3,
-1,
-13,
-9,
30,
-11,
16,
-20,
7,
-6,
-9,
26,
-6,
34,
27,
-27,
-34,
-50,
-9,
-11,
-29,
36,
12,
-14,
-40,
25,
4,
-12,
-1,
11,
39,
-44,
50,
-42,
-37,
-5,
-17,
-12,
-22,
-16,
9,
-18,
-43,
-26,
-10,
20,
14,
39,
32,
-10,
23,
-38,
-30,
-2,
-11,
12,
-18,
2,
10,
-45,
20,
-11,
-7,
7,
3,
-12,
-27,
18,
-1,
26,
14,
-15,
15,
3,
-16,
-29,
-32,
11,
12,
29,
17,
-13,
13,
-2,
-17,
25,
-1,
-59,
-51,
-12,
-23,
-19,
20,
-6,
5,
-16,
13,
42,
-47,
-65,
68,
-26,
-14,
-17,
-27,
-13,
18,
-12,
-31,
-76,
-13,
-24,
16,
55,
-11,
-52,
-46,
-40,
3,
-29,
-17,
-18,
-46,
67,
-18,
-32,
-23,
41,
-55,
9,
-8,
-5,
-33,
1,
-4,
76,
-26,
-2,
-24,
-36,
45,
36,
-29,
36,
4,
-39,
26,
18,
-22,
-43,
-48,
17,
-26,
52,
-20,
8,
36,
-6,
3,
-8,
-68,
22,
-9,
-8,
69,
18,
-21,
-60,
21,
3,
-35,
37,
6,
21,
6,
15,
2,
31,
-14,
21,
-36,
28,
-44,
-34,
-35,
34,
-3,
0,
67,
15,
23,
36,
16,
-22,
-13,
-15,
7,
-19,
-3,
-45,
28,
-3,
0,
0,
24,
27,
4,
-14,
-68,
-20,
48,
-41,
3,
21,
12,
-45,
10,
-3,
-17,
36,
4,
-46,
-13,
-25,
-26,
-31,
4,
19,
26,
4,
1,
0,
7,
-24,
-23,
-26,
-8,
21,
-18,
8,
-25,
15,
32,
42,
16,
28,
-62,
-3,
-16,
-29,
14,
2,
-80,
27,
-12,
-20,
11,
-2,
31,
-7,
-13,
-22,
-92,
20,
3,
22,
-2,
12,
-4,
8,
-20,
-49,
7,
-27,
19,
60,
7,
-4,
-35,
-16,
-11,
-13,
15,
10,
-13,
-25,
-7,
-5,
-22,
0,
7,
-16,
8,
-2,
41,
-17,
10,
-13,
45,
-63,
32,
47,
0,
-20,
-37,
-4,
13,
-7,
13,
-3,
1,
-3,
-21,
-39,
-44,
-7,
-54,
22,
0,
47,
9,
33,
28,
4,
-4,
42,
-21,
31,
-7,
64,
25,
-36,
24,
32,
51,
36,
4,
-22,
-5,
-26,
17,
-48,
-5,
15,
-20,
15,
31,
0,
-47,
13,
50,
22,
25,
56,
6,
43,
26,
11,
-45,
-45,
-54,
-17,
15,
-37,
103,
-19,
-2,
-13,
-43,
-29,
23,
1,
-7,
35,
-37,
-12,
-15,
-17,
-37,
11,
15,
-12,
36,
42,
-3,
10,
16,
1,
-42,
-65,
-18,
40,
-10,
18,
43,
-13,
-31,
-8,
-5,
50,
10,
2,
49,
-51,
14,
24,
-15,
-12,
3,
6,
51,
9,
0,
-9,
-16,
3,
25,
0,
-15,
38,
11,
-14,
40,
-30,
-30,
-27,
25,
-8,
-2,
38,
-10,
-6,
-9,
-25,
-47,
-37,
-16,
-11,
28,
-59,
21,
-29,
81,
0,
10,
-11,
52,
25,
15,
7,
22,
-29,
10,
24,
4,
-16,
47,
-51,
-52,
47,
-6,
-10,
-24,
-12,
-3,
21,
-30,
27,
27,
-30,
23,
-21,
-21,
45,
31,
-52,
18,
-20,
15,
24,
-63,
20,
-31,
23,
40,
19,
3,
-12,
11,
17,
13,
-20,
-2,
44,
38,
6,
-26,
-16,
49,
19,
-28,
2,
-6,
-7,
-17,
-35,
-33,
33,
-21,
48,
9,
44,
-75,
6,
24,
-40,
-21,
20,
22,
-4,
-42,
70,
-16,
-31,
-42,
-17,
28,
48,
-31,
-12,
0,
4,
32,
-30,
-1,
17,
15,
25,
3,
10,
36,
-43,
15,
17,
17,
-70,
10,
35,
31,
-45,
8,
50,
-32,
43,
20,
-53,
44,
-8,
10,
57,
-15,
37,
13,
-44,
-22,
-7,
-57,
-11,
-23,
30,
49,
-2,
-1,
-42,
12,
-25,
-2,
19,
6,
0,
34,
-54,
18,
-12,
25,
24,
2,
-13,
-10,
-2,
-42,
15,
-12,
-13,
-49,
-26,
28,
-31,
8,
12,
-1,
-15,
-16,
-35,
33,
-1,
16,
16,
46,
57,
-34,
-37,
-81,
-51,
0,
1,
-27,
44,
2,
-15,
-22,
-18,
34,
25,
16,
27,
7,
27,
43,
16,
-33,
9,
-74,
-33,
-1,
28,
-51,
-67,
-36,
25,
18,
-33,
2,
-12,
-5,
-10,
-8,
-7,
-1,
32,
2,
-15,
-10,
14,
53,
-14,
-38,
-11,
1,
-1,
45,
-22,
28,
50,
-27,
3,
13,
21,
-17,
19,
-4,
-3,
-14,
-1,
-54,
5,
26,
47,
48,
-7,
26,
-12,
29,
2,
9,
-5,
61,
-35,
-26,
3,
-37,
-1,
-40,
-14,
-22,
-23,
30,
6,
-48,
-25,
-7,
-24,
-40,
-23,
30,
-11,
-33,
-15,
52,
7,
13,
-20,
-68,
-27,
45,
-21,
-31,
35,
30,
-10,
-33,
-18,
-28,
0,
-5,
50,
-4,
-25,
-23,
26,
-14,
0,
-16,
64,
25,
-17,
-20,
-13,
17,
-38,
23,
-44,
0,
5,
-39,
24,
-39,
-3,
10,
34,
-28,
-19,
-4,
-11,
-12,
-16,
25,
32,
13,
39,
80,
-33,
-20,
27,
61,
-8,
6,
46,
-35,
-31,
14,
-36,
48,
-42,
-11,
-23,
12,
20,
23,
-42,
19,
2,
16,
22,
44,
20,
5,
-3,
18,
-5,
-22,
0,
0,
3,
26,
21,
-7,
29,
-38,
4,
4,
6,
-10,
43,
-53,
-16,
42,
-18,
-10,
-14,
57,
-13,
22,
-32,
-19,
-18,
-25,
6,
-18,
9,
33,
42,
14,
44,
-6,
28,
5,
59,
-17,
-15,
-8,
33,
-15,
17,
-17,
92,
-23,
-8,
-15,
19,
-33,
37,
20,
7,
-10,
9,
19,
-28,
-4,
21,
13,
0,
10,
-23,
-42,
0,
-31,
35,
36,
-6,
-12,
16,
-26,
53,
-21,
16,
-9,
44,
-7,
-1,
-11,
19,
-29,
-33,
11,
31,
-13,
-2,
16,
-24,
27,
39,
-13,
-7,
-49,
-10,
35,
18,
-6,
22,
6,
22,
-47,
4,
-26,
52,
-13,
36
] |
Moore, J.
Complainant filed a bill to set aside a mortgage given by her, upon the ground that she was under duress when it was given. The proofs were taken in open court, and a decree was granted according to the prayer of the bill, from which decree the defendant appeals.
The circuit judge filed in the case a written finding of facts, as follows :
“ Charles Bentley, husband of the complainant, was for some years prior to the 8th of January, 1897, the secretary of Hope Lodge of the Royal Arcanum of Port Huron, and acting collector, and had, by means of forged proof of the death of one Henry S. Ballentine, procured the allowance by the supreme council of said society of a claim for said sum in favor of the beneficiary, and the forwarding to said Hope Lodge of a draft upon Detroit for $3,000, payable to the beneficiary named, and had forged her name to the indorsement of the draft, and obtained the cash thereon. Henry S. Ballentine was living at the hearing of this cause. Mr. Bentley had also, something over a year prior thereto,-by like means, obtained a like sum on the assumed death of one George McPherson, -who still lives, but the latter fraud was not known to the defendant at the date of said mortgage. The defendant is the supreme secretary of the supreme council of the Royal Arcanum, and was, shortly prior to the 8th day of January, 1897, advised that the said Henry S. Ballentine was still living, and became advised of the fraud perpetrated by said Bentley. He is a resident of Boston, and came to Port Huron with the forged claims and proofs of death in the Ballentine matter, arriving on the evening of the 7th of January. The next day he submitted to the prosecuting attorney of St. Clair county the evidence that he had of Bentley’s fraud, and the prosecuting attorney sent for the sheriff, and directed him to go and get Bentley, and come to the hotel where he and the defendant were. This was about noon of that day. The sheriff went to Bentley’s house, where he found Bentley sick, and claiming to be too sick to go. The sheriff, after a time, made report to the prosecuting attorney of Bentley’s sickness, and during the afternoon the defendant, the prosecuting attorney, and a member of Hope Lodge went to Bentley’s house, and found him sick. He admitted the fraud, and pretended he still had $1,500 of the Ballentine money in the bank in the shape of a certificate of deposit in the St. Clair County Savings Bank in his store, and gave to the defendant an order1 therefor on his son-in-law, then temporarily in charge of the store. The certificate was not found at the store, and in fact Bentley had cashed it early in the morning of that day, and the $1,500 was then in his bureau drawer at his house. During the afternoon it was ascertained that Bentley had cashed the certificate, and the sheriff was directed by the prosecuting attorney to bring Bentley to the hotel, where the defendant and prosecuting attorney were.
“During the afternoon the sheriff had kept the house of Bentley under surveillance by himself or deputies; and, on being directed as above stated by the prosecuting attorney, the sheriff and deputy sheriff went to the house of Bentley, arriving there as the family were about to take supper. Bentley was upstairs in bed, and had been during the afternoon. The sheriff went upstairs to Bentley, and insisted on his going to the hotel, telling him that he had been instructed to fetch him to the hotel. Bentley claimed to be unable to go; that he was too sick. Thereupon the sheriff went out, leaving the deputy in the house downstairs, and in view of the foot thereof, with directions to stay there until he (the sheriff) should return, and in a short time returned, went upstairs, and came down with Bentley, having his hands upon him. Bentley being but partly dressed, Bentley’s wife and children put on his shoes, necktie, coat, and hat, and the sheriff, with Bentley, then went out, got into a buggy, and drove to the hotel, leaving the deputy to follow on foot.
“At this time the complainant was not informed of the reason why the sheriff was doing as he was, and had no knowledge of the fraud committed. She had applied to her husband during the afternoon to know why the men were coming there as they were, and what was the trouble, and could get no satisfaction. She and her sons and daughters were much disturbed and excited when the sheriff took Bentley away in the buggy. She and the daughters were in tears, and by her direction the son and son-in-law followed the buggy, to see where Bentley was taken. They, running to keep the buggy in sight, saw it stop at the hotel, and the sheriff, with Bentley, go in. Watching the hotel a short time, they left, and on the way home one of them was told by a third party something of the nature of the trouble Bentley was in.
‘ ‘ The deputy sheriff followed to the hotel, and was left there by the sheriff — who went to his supper — to follow such directions as the prosecuting attorney should give him. On arriving at the hotel, Bentley "was taken up to the defendant’s room, aiid there, being advised by the prosecuting attorney as to his official position, and that whatever he said would be used against him, was asked where the money was he had drawn from the bank that morning. Bentley then informed the defendant that he had $1,000 in the bureau at home, excusing his course in sending the defendant to the store as being the result of sickness and medicine he had taken. At the time he was sick — quite sick. He lay upon the bed in the room, and vomited once or twice. He announced his willingness to turn over the $1,000. The deputy, who was in the hotel on the same floor as the room in which the parties .were, was called in, and directed by the prosecuting attorney to take Bentley to his home, and told that Bentley would get $1,000, and give him, and to return with Bentley to the hotel. The deputy drove Bentley to his house. Bentley went in and upstairs, and returned to the buggy, gave the deputy a roll of bills, and the two got in, and the deputy drove back to the hotel, went to the defendant’s room, and there the deputy produced, and there was turned over to the defendant, the roll of bills, which, on being counted, was short of the $1,000. Bentley’s attention being called to it, he claimed that he must have dropped it in the drawer of the bureau, and that it was still there.
“ Bentley was urged to make restitution of the money he had defrauded the Royal Arcanum of. He was not promised by the defendant or the prosecuting attorney that his doing so would avoid prosecution, but it was represented to him that his doing so would aid him in getting leniency at the hands of the court. He was asked as to the title of his house, and he informed the parties truthfully that the title was and had been in his wife for many years, had been bought in her name, and at the time was free from incumbrances. He was asked if his wife would help him out, and would give a mortgage for the balance of the money. On his reply that he thought she would, the prosecuting attorney telephoned for a clerk in his office to come over with a blank mortgage, and the assistant prosecuting attorney, the clerk being absent, went to the hotel with the blank, and, by direction of the prosecuting attorney, Bentley and the assistant prosecuting attorney were driven to Bentley’s house by the deputy sheriff, who was instructed that Bentley would give him the shortage above mentioned, and his wife was to execute a mortgage which the assistant prosecuting attorney would draw. On arriving at the house about 8 o’clock p. m., the assistant prosecuting attorney and Bentley went in at the kitchen door, and Bentley had some conversation with his wife, which, it is evident, the assistant prosecuting attorney did not overhear. Bentley then told his wife in that conversation, in substance, that she would have to sign a mortgage on their home, to save his going to jail; “that there was no other way to avoid it.” On his last assurance she reluctantly consented to do so; whereupon Bentley, the assistant prosecuting attorney, and complainant went upstairs to a room where there was a desk, followed by the deputy sheriff, who had come into the house. The deeds to complainant were produced, from which the assistant prosecuting attorney took the description of the property included in the mortgage, drew the latter, and the note accompanying the same. While the assistant prosecuting attorney was filling out the mortgage, Bentley went into an adjoining ro'om, and returned soon with the shortage above mentioned, and handed it to the deputy sheriff.
“When the mortgage was completed, it was read” over, and it was signed and acknowledged by complainant, and, with the note, duly signed, it was taken by the assistant prosecuting attorney. While the mortgage was being drawn, the complainant was much of the time in tears, and much disturbed and excited. At the time the complainant executed the mortgage she was not advised and did not know fully what Bentley had done, but supposed he was in great trouble on account of something he had done, and she executed the mortgage in the belief on her part that her doing so would save him going to jail. On the execution and delivery of the mortgage, the two officers left the house. The deputy sheriff turned over the shortage to the assistant prosecuting attorney, and the same and the mortgage were given to defendant the next morning, the 9th of January. On the 9th, Robson, the defendant, and the prosecuting attorney, urged Bentley to turn over the balance of the $1,500, the proceeds of the certificate cashed the day before, and during the day Bentley paid to Robson $500, and in the evening of the 9th he gave Robson $100, which his minor son had let him have from the son’s savings. This was done at Robson’s urgency that the mortgage be reduced in amount, to enable him to negotiate a sale and transfer of it at Port Huron.
“Before leaving Port Huron, defendant made a criminal complaint against Bentley, by direction of the prosecuting attorney, for forgery, based on the Ballentine matter. Bentley was arrested, and examination before the justice was continued to the 26th of January, 1897, he being let to bail. Before that day arrived, Bentley’s fraud in the McPherson matter, came to light and to the knowledge of the defendant, who communicated the facts to the prosecuting attorney, who caused Bentley to be arrested and put in jail, where he was on the arrival of the defendant in Port Huron on the 25th of January. Thereupon two new complaints were made by defendant against Bentley, charging him with uttering forged paper, based on each the McPherson and Ballentine matter. Bentley waived examination, and on the 27th of January pleaded guilty to an information in each case in the circuit court, and on one conviction was sentenced to Ionia for seven years.
“It is evident that Bentley was practically in custody from about noon of the 8th of January until complainant, in the evening, executed the mortgage in question, and in actual custody from supper time until the mortgage was executed. The show of force used in the compulsion of Bentley to go to the hotel by officers known to be such, in the condition he was, very naturally impressed complainant with the conviction that he was arrested and about to be prosecuted for a crime, and a serious one; and when he returned, still in the custody of the officer, and she was told by him that it was necessary for her to sign the mortgage to save him going to jail, she must be deemed just as much under duress as though a direct threat of prosecution had been made. When the defendant and the prosecuting attorney sent Bentley, with the officer, to get the mortgage, it is not claimed that they charged him with the duty of informing complainant, when asking her to sign the mortgage, that it was to secure the repayment of money Bentley had wrongfully taken, or that it was not to secure his release from the custody of the officer, or to prevent a prosecution, but knowing, at least, that he had been brought to the hotel when sick, by officers, from the presence of his family, at night, they did leave him to use such means of securing the signature of his wife as he might feel best calculated to insure success, and they ought to be held responsible for the means he did use; but, whether that is so or not, the conclusion is irresistible that she gave the mortgage for the purpose of securing his release from apparent arrest, and with the belief that it would avoid the imprisonment of her husband. It is her belief that controlled her action in the premises. It was justified by what occurred and what was said to her. She was perfectly innocent of any wrong. There was no consideration for the mortgage. I cannot see that she was indebted to the defendant, or the society he represented, equitably or otherwise, or that they ought to have any lien on her property. It is not necessary that threats of prosecution by words be shown, or that promises to forbear prosecution be actually made, to constitute such duress as will avoid such an obligation. It exists when there is actual violence or restraint contrary to law that compels one to enter into a contract. Complainant was the wife of the party under restraint by the officei’S of the law, and, in executing the mortgage, acted upon the assurance that she must do so to prevent his going to jail. She was a woman in distress, laboring under excitement. She had a right to imply from the assurance that it was understood that, if she did execute the mortgage, her husband would not be sent to j ail. Evidently her will was overcome, and, in my opinion, the prayer of the bill should be granted, with costs. ”
The record shows that the learned circuit judge was justified in most of his findings of fact. It is impossible to read the record without coming to the conclusion that Mrs. Bentley understood when she gave the mortgage that her husband was in the custody of the officers, and that, to save him from being conveyed to jail, it was necessary for her to give the mortgage which she executed. It was this motive which actuated her to make it. There is nothing in the record to indicate it would have been made had she not believed it would have this effect. The case comes clearly within the principles established by the following decisions: Seiber v. Price, 26 Mich. 518; Vyne v. Glenn, 41 Mich. 112; Bowe v. Bowe, 42 Mich. 195; Meech v. Lee, 82 Mich. 274; Cribbs v. Sowle, 87 Mich. 340 (24 Am. St. Rep. 166); Miller v. Lumber Co., 98 Mich. 163 (39 Am. St. Rep. 524); Benedict v. Roome, 106 Mich. 378. The court was right in holding the mortgage was tainted with duress.
It is now said, even conceding the mortgage was obtained by duress, it was ratified after the duress had passed, by making payments upon it, and by attempting to have it discounted. The" conclusion we reach from the record is that the wife and family did all that was done in the expectation and belief that it was necessary to .be done to save Mr. Bentley from being imprisoned as the result of his criminal act. What was done after the mortgage was given was in the same line as the giving of the mortgage, prompted by the same motive, expecting to bring about the same result.
It is urged that at least a part of the property covered by the mortgage was paid for by money Mr. Bentley secured, belonging to the defendant, and for that reason should be subjected to the lien of the mortgage. The record shows the lot upon which the house was built was purchased upon a land contract 20 years before Mr. Bentley’s crime was committed, and in 1890 the property was deeded to Mrs. Bentley. In 1895 a deed of a strip of land 28 feet wide was made to Mrs. Bentley. This had been purchased earlier upon a land contract, and it is the claim of the complainant it was paid for by money coming from honest sources, and not from the company represented by the defendant. Mrs. Bentley owed the defendant nothing. The mortgage was given upon her property. If she saw fit, she could secure a debt of her husband by a mortgage upon her real estate, but she was under no obligations to do so. When it is made to appear that the mortgage which was executed was given under duress, before a lien can be established upon a portion of the real estate, upon the claim it was the defend ant’s money which bought the real estate, that fact ought to be made to appear affirmatively. We do not think this has been done.
The decree is affirmed, with costs.
The other Justices concurred. | [
29,
9,
3,
0,
-25,
7,
39,
-5,
22,
0,
52,
-18,
-7,
0,
-15,
-10,
7,
10,
27,
-39,
-28,
-22,
-13,
-56,
-42,
28,
3,
-37,
-30,
5,
7,
6,
-19,
46,
3,
-57,
52,
-50,
24,
-7,
-14,
11,
12,
41,
-27,
13,
-7,
3,
15,
-24,
-22,
-48,
-3,
-20,
-25,
-25,
-43,
-23,
16,
-1,
16,
-56,
85,
-10,
-27,
19,
2,
2,
-16,
4,
57,
-17,
-10,
-4,
-44,
-43,
-24,
-24,
-87,
-27,
-24,
-46,
37,
-20,
-5,
-26,
-31,
7,
-21,
-8,
-33,
14,
-3,
-23,
-19,
-29,
22,
8,
13,
27,
-2,
1,
-32,
-6,
-8,
-18,
9,
-25,
-31,
1,
-22,
-29,
54,
12,
2,
-48,
-25,
-31,
56,
-42,
-3,
-33,
3,
-24,
-23,
34,
-30,
-37,
6,
18,
7,
-44,
-9,
-23,
-40,
-24,
-9,
-36,
-23,
-4,
45,
-27,
-11,
-23,
-7,
17,
3,
45,
8,
-23,
-25,
-30,
59,
77,
29,
-41,
-18,
-6,
17,
-20,
45,
0,
21,
-23,
-28,
-20,
10,
-23,
12,
-22,
-6,
37,
-80,
-41,
2,
16,
13,
-31,
-36,
-16,
4,
45,
25,
-2,
45,
-8,
41,
-18,
33,
-41,
15,
-13,
-45,
56,
-3,
15,
-26,
-75,
30,
-4,
-12,
-23,
9,
9,
-6,
-31,
23,
-12,
-28,
3,
-2,
-19,
-7,
26,
-54,
27,
-1,
-54,
-11,
-8,
31,
32,
6,
115,
-44,
-56,
9,
-11,
-25,
-1,
-3,
25,
9,
-8,
-6,
4,
-8,
19,
-19,
11,
-40,
19,
9,
-28,
-10,
16,
-64,
8,
-14,
17,
-11,
34,
-10,
4,
-21,
30,
23,
-48,
40,
21,
-15,
4,
-29,
16,
40,
-17,
6,
-10,
3,
-43,
47,
-14,
25,
15,
-20,
-11,
13,
21,
-19,
-6,
16,
8,
-20,
-10,
26,
-22,
-20,
-26,
-11,
-5,
-17,
-32,
-8,
14,
45,
22,
-3,
-63,
50,
-14,
-4,
2,
-24,
5,
-30,
-24,
4,
-21,
-23,
-30,
15,
10,
-9,
22,
40,
28,
15,
-48,
6,
23,
61,
12,
-70,
-13,
15,
19,
-2,
-6,
-32,
45,
17,
13,
16,
-59,
-38,
5,
-17,
-6,
-21,
-39,
6,
1,
-9,
9,
-24,
13,
23,
-35,
-29,
-14,
-33,
2,
-18,
20,
8,
27,
51,
-23,
4,
15,
3,
18,
-15,
19,
37,
-22,
-58,
3,
-9,
60,
-1,
4,
-47,
-7,
-5,
6,
-11,
-2,
7,
28,
17,
-7,
-9,
46,
6,
-11,
-1,
-34,
12,
22,
-61,
58,
7,
34,
-17,
-5,
14,
-20,
-80,
-3,
23,
36,
8,
-6,
-48,
32,
-40,
6,
4,
63,
28,
0,
38,
4,
-2,
-28,
-9,
-10,
32,
12,
20,
44,
20,
-41,
14,
15,
29,
13,
11,
-9,
8,
29,
30,
25,
22,
-28,
-20,
-21,
19,
-11,
17,
42,
15,
14,
30,
25,
-5,
-33,
38,
35,
17,
-1,
34,
9,
-28,
10,
16,
27,
-17,
-25,
46,
-25,
-2,
31,
-4,
59,
-10,
17,
-23,
9,
15,
15,
-24,
-30,
-23,
16,
59,
14,
46,
-1,
-17,
-9,
15,
14,
-50,
-27,
-31,
-30,
-35,
-11,
68,
-27,
-27,
-4,
4,
48,
-20,
-50,
-37,
18,
10,
13,
-3,
7,
-12,
-34,
-26,
2,
-15,
30,
-15,
-7,
14,
15,
-8,
18,
70,
-13,
16,
7,
10,
22,
-1,
20,
-46,
-2,
23,
58,
-8,
-22,
-18,
-8,
-24,
13,
-16,
7,
35,
16,
-12,
-6,
-9,
50,
73,
50,
-34,
10,
-19,
-66,
41,
5,
4,
-38,
-35,
0,
-11,
35,
-14,
-27,
-3,
-30,
5,
-37,
-4,
-17,
55,
-16,
16,
-23,
-12,
-39,
-34,
12,
11,
-26,
-38,
-15,
7,
-13,
-21,
42,
9,
-13,
-8,
-37,
18,
26,
-16,
27,
-49,
-3,
24,
-34,
24,
-2,
15,
7,
-30,
22,
58,
-13,
2,
-13,
-37,
22,
-10,
-11,
-16,
50,
14,
0,
22,
-6,
-1,
16,
19,
34,
-21,
-22,
-39,
-2,
40,
74,
28,
7,
51,
5,
23,
-17,
-3,
0,
11,
-18,
-21,
22,
-58,
7,
7,
3,
4,
-10,
-25,
56,
7,
-36,
-25,
32,
-2,
-3,
-3,
-14,
-5,
-13,
24,
13,
28,
-44,
44,
27,
3,
-24,
20,
-39,
1,
18,
23,
-8,
45,
15,
-4,
-11,
18,
-43,
40,
-32,
-4,
-54,
-42,
13,
0,
12,
25,
44,
18,
14,
-24,
-39,
-13,
-24,
-36,
65,
6,
11,
-19,
21,
12,
9,
23,
-29,
18,
-29,
25,
-28,
-6,
26,
-26,
-19,
9,
-12,
-53,
-37,
-7,
4,
34,
-20,
-32,
8,
35,
34,
27,
0,
-16,
-35,
35,
2,
-8,
-19,
29,
57,
-12,
-25,
8,
-7,
-6,
26,
-4,
-13,
-2,
-20,
-22,
20,
-29,
26,
-18,
-22,
20,
-30,
-12,
-6,
5,
25,
59,
31,
-19,
32,
9,
15,
-7,
-11,
41,
-36,
-34,
63,
55,
-76,
15,
33,
10,
31,
14,
25,
16,
5,
-40,
-6,
0,
20,
-3,
-17,
30,
-47,
55,
-19,
-1,
15,
-17,
-21,
30,
42,
39,
-15,
20,
-48,
-10,
-10,
-47,
7,
-16,
-54,
-46,
-9,
-33,
-3,
-1,
-1,
-21,
41,
-4,
-13,
-8,
20,
-13,
27,
-17,
-61,
-74,
-20,
-15,
22,
-9,
23,
0,
12,
20,
-18,
6,
-9,
-29,
-2,
-64,
35,
-7,
-22,
-31,
-27,
68,
27,
-10,
27,
-19,
27,
-24,
-14,
18,
42,
-6,
-1,
29,
20,
-35,
51,
1,
-16,
20,
-12,
-47,
-70,
32,
-28,
10,
-14,
8,
-30,
-11,
-36,
-11,
-4,
41,
18,
22,
-12,
-3,
8,
-52,
36,
12,
36,
76,
-23,
37,
-20,
-11,
0,
11,
25,
1,
52,
40,
-19,
-15,
20,
12,
-3,
15,
5,
-1,
1,
-4,
-82,
-21,
3,
-11,
9,
-17,
-48,
9,
-46,
-6,
10,
24,
-5,
0,
-43,
-41,
-25,
-68,
72,
-2,
2,
8,
24,
4,
-20,
-24,
13,
15,
5,
45,
20,
-36,
66,
8,
8,
-56,
20,
-30,
-16,
-32,
-13,
12,
0,
49,
22,
-47,
-1,
-25,
15,
17,
0,
7,
46,
-46,
-20,
45,
55,
-10,
11,
-14,
-28,
-9,
15,
-8,
11,
40,
-35,
54,
32,
-21,
-7,
31,
25,
-1,
2,
-20,
-15,
1,
0,
35,
26,
23,
-36,
-6,
-42,
-48,
57,
4,
-22,
9,
-53,
-30,
-24,
20,
11,
-10,
15,
3,
-15,
17,
-13,
15,
7,
33,
-8,
54,
53,
26,
-41,
12,
15,
8,
-9,
5,
10,
44,
-10,
-15,
27,
10,
-49,
18,
-2,
18,
2,
-17,
45
] |
Lesinski, C. J.
On February 6, 1967, defendant Eugene Thouin’s 1960 armed robbery conviction was set aside and a new trial granted.
On March 27, 1967, defendant, through appointed counsel, entered a plea of guilty to an added count of unarmed robbery. The record of this plea hearing is as follows:
“The Court: We have criminal matters?
“Mr. Pantel: May it please the court, my name is Michael Pantel appearing on behalf of the prosecutor’s office this morning in regard to the case of the People v. Eugene Thouin being Cr 18,494. Your Honor, this matter was set down for trial on March the 23rd before your Honor.
“These circumstances arose when this defendant was sentenced on June 23, 1960, by Judge Dondero after being found guilty by a jury to the charge of armed robbery. At that time the defendant was sentenced to 25 to 50 years in Jackson Prison. Mr. Chosid who is present in the courtroom was appointed counsel for the defendant and filed an appeal in this matter and a motion for new trial was granted. Defendant has been brought down from Jackson on a writ. It is now set for trial on today’s date, and at this time the people would move to add a second count to the information.
"The Court: Where is the defendant ?
“Mr. Pantel: In the box. Would you stand please ?
“The Court: No. You may sit down.
“Mr. Pantel: All right, thank you. After having reviewed this matter the people at this time would move to add a second count to the original information, that being robbery unarmed which carries a maximum penalty of 15 years.
“Mr. Chosid: Richard G. Chosid, attorney representing the defendant. At this time, your Honor, the defendant would like to enter a plea in this matter in connection with the added charge of robbery unarmed, that plea being guilty.
“The Court: Do you understand that only you can plead in this matter ?
“Mr. Thouin: Yes, sir.
“The Court: And that you must do so voluntarily?
“Mr. Thouin: Yes, sir.
“The Court: And that the maximum penalty for robbery unarmed is 15 years ?
“Mr. Thouin: Yes, sir.
“The Court: And that you are entitled to have a trial on this count by a jury or by this court?
“Mr. Thouin: Yes, sir.
“The Court: And that you are presumed innocent of this count until proved guilty beyond a reasonable doubt?
“Mr. Thouin: Yes, sir.
“The Court: That you will be entitled to counsel?
“Mr. Thouin: Yes, sir.
“The Court: And that if you have a trial you will not have to take the stand?
“Mr. Thouin: Yes, sir.
“The Court: In robbery unarmed, will you please outline the elements?
“Mr. Pantel: Yes, your Honor. The elements are any person who shall by force or violence or by assault and putting in fear shall feloniously rob, steal and take from the person of another in his presence any money or property which may be the subject of larceny, such robber not being armed with a dangerous weapon.
“The Court: You understand the elements of robbery unarmed?
“Mr. Thouin: Yes, sir.
“The Court: Do you understand that no one can promise you what sentence I shall find if you plead guilty?
“Mr. Thouin: Yes, sir.
“The Court: Explain in your own words what you did do.
“Mr. Thouin: Pardon?
“The Court: Explain in your own words what you did.
“Mr. Thouin: It’s a long time. At that time I could talk that good. Mister, if I could talk to myself, you know, we could talk a little hit, but partly — part like this, that it would take a long time for me to — like that.
“The Court: At the time of this robbery where were you?
“Mr. Thouin: Can I talk to him?”
(Whereupon the defendant and his counsel had a discussion out of the hearing of the reporter.)
“Mr. Pantel: Would you like me to read the information to the defendant, your Honor?
“Mr. Chosid: Tour Honor, he says that the facts and circumstances surrounding the robbery and events that happened at that time, that he is unable to almost completely recall these things due to his paralytic stroke.
“The Court: The defendant is presently incarcerated in Jackson on Count I, is that correct?
“Mr. Pantel: That is correct. He is serving the original sentence imposed hy Judge Dondero.
“The Court: Then being aware of those circumstances I will allow the plea to the second charge.
“Mr. Chosid: Thank you, your Honor.
“Mr. Pa/ntel: Thank you.
“Mr. Chosid: I would appreciate it if some indication could be made to the probation department when he is referred over for sentencing as to a request for a speedy report.
“The Court: The normal sentencing date for this man would be April 24. Contact the probation office to see about a more speedy report. He is right behind you—
“Mr. Chosid: Thank you, your Honor.
“The Court: —in court.
“Mr. Pantel: That is April 24, the tentative date?
“The Court: Or as soon as possible.
“Mr. Pantel: Thank you.” (Emphasis supplied.)
Because of the apparent physical and mental infirmity of the defendant at the time of the above plea, as well as his subsequent hospitalization, the people, on April 12, 1967, moved to set aside defendant’s plea:
“Mr. Pantel: May it please the court, the people would like to call the case of Cr 18,494, People v. Eugene Thouin. Defendant is charged with two counts, first count being robbery armed, second count being unarmed robbery.
“Your Honor, I’m sure that the court is well aware of this case. This case came up before the court on a motion for new trial. At that time the defendant entered a plea to an added count by the prosecution to guilty of robbery unarmed. Sentence was deferred until April 24. It’s my understanding presently during the interim it had been adjourned. The defendant needed hospitalisation at Pontiac General Hospital and has been in the hospital since the date of his entry of his plea until yesterday’s date when he was released and taken back to the Oakland County Jail.
“Based upon the commission of the defendant at the time of his entry of the plea as well as his condition subsequently, the people at this time move to set aside his plea of guilty to the charge of unarmed robbery, and it’s the prosecution’s feeling that this man should be incarcerated back on his original sentence of 25 to 50 years in Jackson Prison on the original charge of robbery armed until he is therefore fit and able to stand trial or to enter a plea to the added count of unarmed robbery. I would therefore move that the new trial be adjourned until he’s therefore able to stand trial.
“The Court: Counsel for defense?
“Mr. Chosid: Your Honor, at this time it is our understanding that Mr. Thouin didn’t understand the nature of the proceedings under which we had him before this court before. We therefore would like to withdraw the plea that was entered at that time.
“Subsequent to the entry of that plea, Mr. Thouin has had a heart seizure in the jail. He was taken to the hospital. I would therefore like to recommend to the court that he be remanded to Jackson with the recommendation that he get some rehabilitation treatment in order that he be able to be brought back to your courtroom at the shortest possible time in order to be able to stand trial on the charge.
“The Court: Very well. I’ll withdraw acceptance of the plea to the second count, and he will be remanded to Jackson where he can better receive treatment than in the county jail, and the new trial then will be adjourned until he is fit to defend himself.
“Mr. Chosid: Thank you, your Honor.
“Mr. Pantel: Thank you.” (Emphasis supplied.)
Thereafter, on July 5, 1967, defendant again entered a plea of guilty to the crime of unarmed robbery:
“Mr. Pantel: Your Honor, there are two other matters which are also scheduled for today, the first one being the case of Cr 18,494, People v. Eugene Thouin. This matter came before the court prior to this time on a motion for new trial; a new trial on the charge of robbery armed was granted to the defendant and at the time of the trial date the defendant attempted to enter a plea to the added count of Count II, robbery unarmed, which in fact the defendant did plead guilty to but was set aside by the court. He has since been incarcerated in Jackson, and on my writ of bringing the prisoner up for new trial it is again before the court. At this time the people again are ready for trial on the two counts, Count I of robbery armed, Count II of robbery unarmed.
“Mr. Chosid: Your Honor, as we have discussed this matter on numerous occasions before, the defendant is ready to make a plea on the added count of robbery unarmed.
“The Court: What is the maximum penalty for robbery unarmed? Is it 15 years?
“Mr. Pantel: A 15-year penalty, your Honor, MSA 28.798. The robbery armed carries a maximum penalty of life.
“The Court: Do you understand that only you can plead guilty to the second count?
“Mr. Thouin: Yes, sir.
“The Court: That you must do so voluntarily?
“Mr. Thouin: Yes, sir.
“The Court: You have been assigned counsel. You have a right to trial on the new count by a jury or by this court and you are presumed innocent until proven guilty beyond a reasonable doubt. If you do have another trial you will not have to take the stand. Do you understand what robbery unarmed is?
“Mr. Thouin: Yes, sir.
“The Court: And do you voluntarily plead guilty to robbery unarmed?
“Mr. Thouin: I do.
“The Court: Very well.
“Mr. Pantel: All right.
“The Court: I will accept the plea.
“Mr. Pantel: Do we have a date, your Honor, on the second count?
“The Court: Did you discuss the sentencing date with the—
“Mr. Pantel: One week from today, I think.
“Mr. Chosid: The 12th.
“The Court: All right. We’ll set sentencing down for the 12th of July.
“Mr. Chosid: Thank you, your Honor. The prisoner will be in the Oakland County Jail until that time?
“Mr. Pantel: Awaiting sentence.
“The Court: Yes. You may be seated.
“Mr. Pantel: Thank you.”
On appeal defendant correctly argues that the trial judge failed to comply with the requirements of OCR 1963, 785.3(2). The Supreme Court stated in People v. Strick (1940), 292 Mich 173 (construing statutory counterpart of former court rule):
“In my opinion, respondent’s plea of guilty was so qualified that the court should have refused to accept such plea as it was not made with full knowledge of the nature of the accusation. The nature of the crime committed and the statements made by respondent in open court should have apprised the court that further investigation should be made before the plea of guilty was accepted.”
In the instant case, the trial court’s knowledge, on April 5, 1967, of the defendant’s prior disability made further investigation mandatory. At a bare minimum the trial court should have questioned the accused regarding his participation in the crime. People v. Barrows (1959), 358 Mich 267; see People v. Taylor (1970), 383 Mich 338, 356, 357. The failure to so question the accused and the failure to inquire about the defendant’s physical and mental condition constituted a miscarriage of justice necessitating reversal. People v. Dunn (1968), 380 Mich 693; People v. Winegar (1968), 380 Mich 719.
Our decision in this case obviates discussion of defendant’s claim of error concerning the amount of credit he is to be given for the time spent in prison under the initial sentence. However, in view of the people’s confession of error on this question, we trust the problem will not occur on remand.
Reversed and remanded.
All concurred.
CL 1948, § 750.529 (Stat Ann 1954 Rev § 28.797).
MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).
On remand and in the event a plea of guilty is again tendered, the trial court should bear in mind the admonition of Chief Justice Warren in McCarthy v. United States (1969), 394 US 459, 471, 472 (89 S Ct 1166, 22 L Ed 2d 418), (as cited in People v. Taylor (1970), 383 Mich 338, 358): “It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.” | [
47,
49,
-51,
41,
-76,
-39,
-88,
-57,
-12,
-5,
-13,
-45,
11,
-32,
-10,
18,
-20,
0,
28,
-62,
-19,
-25,
-50,
-11,
-11,
-67,
6,
49,
-33,
11,
70,
54,
0,
-65,
5,
11,
-12,
-46,
-4,
33,
-11,
-19,
-4,
19,
-1,
-48,
-10,
-26,
51,
7,
-8,
-2,
49,
23,
-18,
41,
7,
31,
-35,
-4,
-26,
5,
-36,
6,
22,
-16,
3,
9,
11,
-67,
5,
21,
4,
38,
-15,
-17,
0,
-4,
28,
-5,
-47,
14,
-12,
7,
-75,
2,
-14,
-47,
-21,
-34,
27,
46,
-1,
0,
25,
-48,
16,
27,
32,
-33,
-60,
-96,
-5,
-15,
29,
-10,
-45,
-15,
17,
97,
24,
-37,
61,
-44,
-20,
-37,
-25,
-26,
-8,
-32,
-9,
-4,
36,
8,
26,
-39,
-21,
0,
0,
-45,
32,
59,
-17,
-23,
-36,
44,
27,
4,
-28,
-25,
-18,
-4,
11,
12,
34,
29,
-31,
50,
6,
42,
-23,
27,
-56,
24,
-19,
4,
-25,
-22,
-4,
17,
-8,
-38,
-11,
-58,
20,
-16,
-59,
10,
11,
-20,
-80,
-35,
54,
36,
41,
3,
13,
20,
-10,
24,
-12,
-3,
-52,
29,
19,
-17,
-43,
24,
-40,
16,
4,
29,
-17,
-57,
53,
9,
29,
13,
-20,
6,
3,
-15,
1,
29,
37,
-8,
10,
15,
32,
-35,
-13,
-48,
2,
0,
15,
-8,
9,
23,
2,
8,
-26,
16,
-21,
-26,
-7,
5,
33,
16,
-12,
4,
20,
12,
35,
17,
-10,
-32,
74,
-37,
38,
3,
-28,
-40,
44,
-28,
20,
35,
-38,
31,
-34,
2,
7,
9,
39,
24,
-37,
25,
67,
-46,
22,
27,
-36,
4,
45,
3,
30,
53,
-27,
-2,
-54,
-1,
60,
-29,
-6,
-3,
2,
-2,
-54,
53,
-28,
6,
19,
46,
-15,
-2,
-13,
-69,
-9,
9,
38,
-8,
60,
34,
12,
-7,
59,
19,
51,
14,
-22,
47,
0,
9,
-38,
-44,
44,
-19,
21,
-14,
-78,
-4,
74,
19,
-15,
-10,
-18,
-25,
0,
-1,
34,
24,
-21,
7,
7,
8,
33,
25,
33,
0,
9,
-21,
9,
4,
-43,
-65,
-47,
5,
-19,
86,
19,
41,
-3,
-28,
12,
3,
17,
30,
-10,
10,
-32,
6,
22,
-1,
37,
-28,
17,
-2,
-45,
-26,
85,
-100,
63,
-43,
16,
7,
0,
-5,
-15,
-45,
60,
39,
-25,
-20,
-22,
-22,
-11,
40,
46,
4,
-45,
0,
-35,
-25,
-36,
-15,
13,
-26,
-5,
-39,
4,
5,
-30,
-18,
-40,
-56,
89,
-53,
-1,
-16,
75,
-65,
-9,
21,
57,
34,
-16,
19,
-64,
36,
62,
-23,
5,
-8,
66,
42,
-3,
-46,
6,
-49,
-29,
-18,
-42,
-12,
6,
13,
6,
-1,
-23,
5,
59,
-36,
2,
-9,
0,
-5,
1,
29,
-17,
-6,
40,
-23,
-36,
-27,
-29,
38,
75,
-14,
-35,
-29,
30,
-3,
-1,
-10,
12,
-56,
4,
41,
-29,
16,
-1,
52,
-48,
12,
-13,
-8,
60,
-2,
-29,
10,
7,
-46,
41,
-1,
-5,
14,
-23,
3,
1,
-1,
47,
-17,
-28,
-37,
10,
-27,
11,
-45,
-1,
-21,
-13,
-28,
-7,
-16,
75,
-48,
35,
19,
-64,
40,
11,
0,
-95,
-13,
-10,
-6,
13,
11,
-7,
6,
21,
75,
15,
-6,
-31,
-43,
4,
-35,
-5,
6,
-32,
8,
54,
-27,
53,
18,
-4,
14,
-36,
10,
-31,
-11,
14,
-60,
-2,
0,
31,
-28,
-26,
-57,
-3,
-20,
28,
21,
34,
-6,
13,
-23,
16,
-22,
29,
-2,
42,
25,
13,
-45,
-32,
16,
-21,
-17,
-1,
-21,
-6,
29,
44,
14,
-2,
-17,
5,
-2,
46,
47,
0,
34,
6,
43,
18,
-3,
-18,
33,
-19,
4,
84,
0,
9,
69,
-22,
7,
4,
-40,
10,
-15,
-46,
30,
-9,
-40,
10,
-11,
-6,
-20,
-54,
-71,
-4,
0,
-30,
11,
49,
-15,
15,
16,
-7,
-18,
39,
33,
-26,
48,
-28,
20,
4,
-15,
-34,
33,
59,
-32,
51,
-50,
1,
-64,
-34,
-17,
-40,
-18,
17,
-24,
23,
12,
-28,
14,
11,
-20,
-48,
50,
-31,
47,
-30,
-58,
-3,
10,
-19,
-5,
17,
1,
-10,
-13,
31,
7,
6,
1,
-3,
8,
24,
-15,
-21,
40,
-43,
-14,
-38,
24,
18,
-44,
33,
33,
14,
-43,
5,
-39,
16,
15,
-12,
-2,
-2,
-65,
-39,
-44,
21,
-25,
20,
17,
34,
0,
7,
63,
-42,
8,
30,
23,
94,
22,
69,
33,
-24,
73,
0,
34,
35,
-57,
-22,
16,
-3,
-16,
-17,
-20,
-43,
41,
-56,
-8,
-2,
-65,
-26,
-41,
-12,
15,
19,
-10,
39,
46,
35,
29,
-2,
2,
6,
-30,
36,
-10,
2,
35,
106,
48,
-27,
9,
-49,
-37,
-32,
-17,
-30,
-8,
4,
7,
-86,
26,
-37,
33,
-21,
-8,
11,
1,
-14,
18,
0,
-7,
5,
-40,
-28,
25,
0,
-70,
-64,
34,
49,
4,
43,
16,
-33,
-57,
53,
7,
-39,
-6,
-8,
-49,
23,
56,
18,
62,
2,
-3,
73,
7,
-25,
-29,
15,
-74,
-1,
-30,
-31,
40,
-25,
14,
-13,
31,
28,
-35,
-66,
10,
8,
7,
19,
-17,
35,
30,
-20,
25,
-42,
25,
-12,
19,
10,
32,
56,
-39,
35,
-9,
17,
6,
16,
37,
-3,
-2,
24,
-16,
-8,
-29,
-21,
-37,
46,
-10,
-24,
23,
5,
21,
-56,
6,
21,
-17,
-2,
22,
-16,
-46,
4,
-40,
-15,
30,
77,
-33,
-62,
-57,
-55,
-4,
-26,
-8,
18,
-68,
39,
-21,
38,
-20,
-28,
-3,
39,
-21,
5,
29,
12,
3,
-3,
36,
-8,
63,
-89,
20,
44,
-62,
26,
-18,
6,
8,
4,
-37,
-5,
-43,
-20,
24,
33,
8,
-65,
2,
-27,
-4,
6,
21,
0,
6,
38,
59,
14,
3,
69,
-31,
31,
26,
3,
21,
48,
28,
38,
-20,
10,
-31,
-1,
25,
29,
-60,
-15,
16,
16,
78,
17,
-107,
56,
25,
-9,
32,
-17,
16,
77,
-73,
-34,
9,
56,
-9,
-25,
5,
11,
-27,
-68,
13,
0,
31,
33,
-84,
1,
18,
-9,
-41,
-6,
-19,
29,
12,
-16,
14,
36,
-3,
-13,
24,
-8,
-52,
68,
50,
-16,
1,
-39,
20,
19,
-38,
-12,
-38,
69,
-41,
-12,
-18,
16,
-24,
18,
-4,
-58,
-5,
48,
1,
0,
12,
-32,
-7,
11,
0,
2,
14,
38,
14,
12,
-23,
-10,
79,
17,
0,
44,
-29,
-16,
-21,
57,
30,
-45,
16,
-16,
13,
13,
-50,
-4,
11,
2,
6,
-17,
9,
-52,
31,
-34,
53
] |
Lesinski, C. J.
On may 23,1968, many employees of the Pontiac Osteopathic Hospital participated in a “walkout.” Subsequently the hospital discharged Florence Beach, Burnadette Gilmette and Rosa Lee Shorters, defendants herein, from employment, alleging the illegality of their participation in the walkout. The three individual defendants, stewards of defendant union, claimed the discharges were unjustified and not in accordance with the terms of the existent collective bargaining agreement. Pursuant to that agreement, the matter was submitted to binding arbitration.
On January 13, 1969, after eight hearings, the arbitrator made his award, finding that the walkout was an illegal strike, that defendants Beach and Shorters were seriously involved in the walkout, that defendant Gilmette was “less involved” in the walkout than the other two women, and that the following discipline was proper:
“Award
“The discharges of the three women are set aside and changed as follows:
“1. Rosa Lee Shorters shall be reinstated effective March 23, 1969 without back pay;
“2. Florence Beach shall be reinstated effective March 23, 1969 without back pay;
“3. Burnadette Gilmette shall be reinstated as of September 23, 1968 with back pay from September 23,1968 less applicable municipal, state and Federal taxes and less any wages or income earned subsequent to September 23, 1968.”
On January 24, 1969, the hospital filed a sworn complaint, in Oakland County Circuit Court, seeking to vacate the portion of the award reinstating the defendants. The complaint alleged, inter alia:
“ (4) That the said defendants filed grievances and took the discharge to arbitration under the terms of said collective bargaining contract.
“(5) That at said arbitration hearing before Edward Froelich [sic] the parties agreed that the only issue was as follows:
“ ‘As I see it, there is one issue — What were the union stewards doing (during the strike) ?
“‘(a) Were they participating?
“ ‘(b) Were they trying to get the employees back?’ and the only question in dispute before the arbitrator was whether or not the said employees were involved in said offense.
“(6) That the arbitrator made the following finding:
“ ‘However, as indicated, the arbitrator is of the opinion that the two union stewards namely, Mesdames Shorters and Beach, were “behind” the walkout.’
“(9) That the arbitrator, in spite of his findings, ordered that the said employees be rehired by the plaintiff contrary to his powers.”
On February 14, 1969, defendants filed a motion for accelerated judgment, unsupported by affidavit, pursuant to OCR 1963,116, alleging that the court lacked jurisdiction over the subject matter of the plaintiff’s claim (OCR 1963, 116.1[1]), or that the claim is barred because of other disposition of the claim before commencement of plaintiff’s action (GrCR 1963, 116.1 [5]). After oral argument, the lower court entered its order granting defendant’s motion and dismissing plaintiff’s entire complaint for the reason that “the claim of the plaintiff is barred”. Plaintiff appeals this order as of right.
Although the parties to the collective bargaining agreement voluntarily submitted, in accordance with the terms of the agreement, to binding arbitration, there can be no doubt as to the right of either party to seek vacation of the arbitrator’s award in circuit court. The grounds of such relief were clearly stated in Stowe v. Mutual Home Builders Corporation (1930), 252 Mich 492, 497, 498:
“Arbitrators derive all their power and authority from the law. The agreement of arbitration entered into between the parties is the law of the case. An award based upon the agreement of arbitration must stand, in the absence of fraud or mistake, but an arbitrary award outside of the scope of the agreement of arbitration is not binding upon anyone, because it has no legal sanction. It is clear in this case the thing submitted to arbitration was the amount due on a written contract. This has not been determined. The order of confirmation and the award of the arbitrators is set aside, with costs to appellant.”
Thus, the existence of the prior award does not constitute another “disposition of the claim before commencement of plaintiff’s action” which would bar the instant action under OCR 1963,116.1(5).
Since the defendants’ motion was alternatively based on the ground of lack of subject matter jurisdiction (G-CR 1963,116.1 [1]), we must determine if, accepting as true all well pleaded facts in the plaintiff’s complaint, subject matter jurisdiction is established. Miller Glass Co., Inc. v. Kushmaul (1968), 13 Mich App 346, 349. The plaintiff alleged in a sworn complaint that the arbitration was entered into under the terms of the collective bargaining agreement, that the only issue before the arbitrator was the nature of the stewards’ participation in the walkout, that the arbitrator determined the illegality of said participation, and that, nevertheless, the arbitrator ordered the rehiring of the stewards. On the face of the complaint the plaintiff has alleged facts which, if proven, would establish jurisdiction in the circuit court to decide the question of the scope of the arbitrator’s authority. Stowe v. Mutual Home Builders Corporation, supra. The trial court, therefore erred in dismissing the plaintiff’s complaint.
The cause is remanded for proceedings, not inconsistent with this opinion, directed at resolution of the factual question of the scope of the issue submitted to the arbitrator.
Reversed and remanded.
All concurred.
See GCR 1963, 116.3. | [
6,
-21,
-48,
57,
12,
3,
22,
-28,
-2,
9,
-41,
63,
39,
-2,
-16,
20,
13,
-18,
-32,
0,
-45,
-85,
30,
34,
17,
6,
0,
-7,
0,
0,
-51,
28,
-1,
-7,
-3,
-72,
10,
-26,
-47,
0,
-59,
24,
-17,
-15,
-9,
38,
21,
35,
66,
-14,
26,
1,
-35,
28,
11,
21,
-18,
27,
-40,
-11,
-42,
23,
29,
-44,
16,
-39,
18,
31,
-22,
-11,
34,
-14,
-1,
-34,
-17,
6,
28,
13,
-27,
-2,
27,
-9,
-35,
45,
23,
-4,
-21,
-3,
22,
-27,
-7,
25,
6,
-3,
28,
-32,
-42,
-33,
38,
-22,
-36,
-1,
-28,
34,
-11,
10,
77,
-20,
-11,
3,
-54,
12,
49,
48,
33,
2,
22,
0,
-27,
20,
33,
21,
4,
28,
2,
-27,
-22,
-22,
-3,
27,
-2,
-9,
-18,
-31,
-7,
17,
29,
13,
73,
19,
-68,
64,
-14,
-31,
16,
23,
-51,
44,
-10,
-63,
-68,
14,
34,
32,
-3,
0,
26,
-5,
-15,
77,
-37,
-57,
12,
12,
-9,
-67,
26,
25,
54,
34,
33,
8,
11,
-33,
-21,
-8,
18,
14,
-39,
72,
-20,
-59,
-52,
13,
42,
-33,
7,
-10,
15,
-5,
3,
0,
5,
-12,
0,
11,
-7,
24,
-34,
24,
-4,
-21,
-53,
-14,
-38,
6,
47,
23,
21,
36,
7,
-2,
37,
-2,
16,
19,
92,
15,
-47,
-50,
-27,
-20,
2,
24,
-24,
-29,
26,
8,
0,
-49,
-13,
30,
43,
-1,
18,
-12,
28,
48,
49,
19,
-54,
-4,
28,
18,
-38,
5,
-33,
-30,
3,
48,
1,
32,
0,
-7,
-78,
-1,
-40,
7,
-18,
30,
-27,
8,
-17,
-2,
-16,
42,
-19,
-1,
-17,
-8,
-19,
32,
7,
-49,
8,
-37,
12,
25,
25,
10,
-9,
-23,
-29,
10,
7,
23,
-53,
-24,
-19,
15,
3,
21,
-50,
-30,
22,
1,
9,
24,
-28,
25,
-85,
34,
-7,
-17,
-34,
52,
-25,
-7,
48,
9,
34,
-11,
41,
5,
10,
-50,
-10,
-16,
19,
4,
-47,
51,
-21,
23,
-48,
-48,
-21,
21,
21,
-49,
54,
26,
2,
7,
25,
33,
2,
46,
41,
-35,
56,
18,
-20,
-24,
-37,
-14,
7,
7,
0,
-18,
16,
-13,
9,
30,
16,
19,
23,
14,
-40,
3,
-30,
-12,
-26,
38,
-39,
63,
-22,
-9,
53,
20,
-11,
-14,
4,
3,
-71,
60,
35,
-68,
13,
39,
-27,
-12,
57,
6,
-5,
5,
10,
10,
-38,
28,
-35,
-36,
-13,
63,
33,
55,
2,
17,
-25,
18,
-19,
11,
-36,
53,
-11,
-35,
3,
-72,
-6,
-16,
11,
-13,
11,
22,
-3,
-25,
7,
-15,
24,
-60,
37,
9,
-36,
-9,
-33,
4,
-1,
-12,
25,
-3,
-37,
-30,
-14,
-22,
11,
8,
-40,
34,
-57,
-45,
12,
0,
-20,
28,
-13,
11,
27,
-9,
11,
44,
-12,
-20,
25,
52,
-29,
-12,
-86,
31,
11,
-13,
-73,
-71,
0,
8,
62,
57,
5,
51,
-16,
59,
-30,
1,
69,
28,
-4,
-37,
9,
-26,
-7,
-17,
20,
15,
34,
8,
-32,
0,
-5,
-9,
17,
-20,
76,
-29,
-6,
40,
48,
-22,
-4,
-17,
-21,
-5,
-36,
-3,
4,
-44,
19,
-36,
-27,
-85,
12,
-13,
-56,
-3,
3,
40,
49,
-36,
10,
8,
24,
23,
-9,
22,
-24,
-25,
1,
-53,
-11,
-21,
-1,
-38,
-14,
-6,
35,
25,
42,
-8,
-18,
14,
-63,
-51,
27,
5,
34,
20,
28,
-62,
-13,
-37,
84,
37,
36,
-25,
-41,
-87,
55,
30,
-3,
-31,
41,
21,
-69,
42,
48,
40,
-6,
37,
0,
4,
43,
63,
20,
61,
15,
27,
8,
52,
-2,
58,
-38,
16,
15,
-21,
2,
44,
27,
-30,
25,
7,
-58,
-21,
6,
-42,
-32,
-20,
61,
41,
-32,
1,
4,
14,
50,
-15,
-36,
30,
-24,
-56,
29,
-26,
29,
-38,
3,
1,
-60,
2,
-13,
31,
-5,
37,
27,
43,
-18,
43,
-21,
16,
-6,
27,
48,
1,
30,
-45,
36,
30,
29,
10,
-23,
-20,
26,
-10,
-25,
23,
-2,
-16,
-13,
31,
-42,
2,
-24,
-31,
-15,
-6,
-22,
36,
2,
-3,
-40,
-27,
41,
17,
-29,
-47,
-13,
68,
25,
36,
12,
-9,
56,
-15,
-21,
-7,
17,
59,
27,
18,
39,
-10,
45,
5,
-7,
57,
-28,
0,
-6,
27,
-14,
-47,
49,
44,
-22,
-30,
-25,
41,
-1,
20,
66,
-31,
9,
30,
59,
7,
8,
66,
-1,
30,
9,
-5,
-39,
-29,
2,
-42,
-5,
-53,
-32,
-20,
25,
42,
-59,
51,
-12,
-18,
-42,
27,
12,
16,
20,
17,
80,
-52,
13,
-54,
34,
59,
-6,
12,
-7,
6,
-54,
21,
-41,
-26,
3,
34,
-77,
16,
-40,
-28,
-77,
-22,
10,
-19,
-26,
0,
-13,
10,
-12,
-48,
10,
-29,
-56,
8,
-38,
-30,
66,
-10,
-19,
0,
0,
25,
42,
0,
-29,
27,
-46,
8,
-2,
-41,
-66,
-12,
-103,
-17,
12,
-23,
-4,
-27,
-15,
-18,
0,
17,
2,
-21,
-48,
-44,
-20,
-30,
0,
13,
6,
3,
-64,
-61,
-23,
19,
13,
32,
-20,
-22,
-25,
-48,
-5,
31,
-43,
-32,
33,
-59,
18,
21,
-56,
-35,
-1,
10,
-2,
-48,
0,
-9,
61,
-43,
-11,
6,
-29,
-2,
-12,
28,
1,
17,
3,
-17,
-24,
-40,
41,
-10,
-21,
-17,
-16,
18,
-24,
-38,
-20,
69,
4,
-16,
29,
-19,
-26,
39,
15,
-20,
-24,
-67,
-29,
-12,
-5,
37,
-32,
-28,
-35,
98,
-16,
-9,
37,
9,
-77,
-18,
23,
2,
-17,
-23,
12,
-42,
36,
7,
2,
-40,
15,
-28,
51,
54,
55,
12,
-39,
45,
10,
6,
-6,
17,
-10,
-5,
44,
-44,
-16,
3,
61,
34,
22,
-56,
-31,
-3,
-19,
-9,
10,
40,
-34,
14,
-29,
-17,
-43,
28,
-54,
41,
13,
-49,
-13,
-27,
48,
-34,
11,
-6,
2,
38,
-27,
57,
27,
8,
14,
-91,
-10,
15,
10,
-31,
-5,
-14,
-17,
19,
4,
-41,
11,
-10,
10,
-21,
0,
26,
-9,
-4,
51,
7,
-22,
6,
19,
-18,
23,
22,
-24,
-25,
26,
15,
-6,
-8,
-9,
-5,
1,
-54,
5,
-3,
19,
15,
39,
-1,
-11,
-10,
7,
33,
10,
14,
-62,
50,
-11,
-54,
-35,
-6,
-56,
29,
9,
42,
63,
3,
-2,
0,
-37,
-81,
34,
9,
22,
23,
68,
-16,
18,
10,
30,
-54,
31,
27,
12,
-11,
44,
6,
26,
-1,
-43,
-10,
-15,
-25,
-24,
-22,
-3,
46
] |
Brown, J.
Appellant Catherine Reinink seeks reversal of the decision of the Ottawa county circuit court denying her motion for a new trial and dismissing her suit for separate maintenance. At the hearing held in appellant’s separate maintenance suit on June 24, 1968, the defendant placed in evidence a judgment of divorce which he had secured in Arkansas on March 25, 1968. The trial court found that “the Arkansas divorce was obtained in good faith and is valid” and dismissed plaintiff’s separate maintenance suit on the ground that the court was “without power to award a sum to plaintiff for .her support or to set aside defendant’s property for plaintiff’s benefit or support.”
Appellant contends that the trial court erred in finding that Mr. Reinink acquired a bona fide domicile in Arkansas and that the foreign judgment of divorce was entitled to full faith and credit as provided by the United States Constitution. There is, of course, no question of the right of a state to inquire into and determine whether or not domicile was acquired in a foreign jurisdiction in which a divorce decree is granted. Gray v. Gray (1948), 320 Mich 49; Henry v. Henry (1960), 362 Mich 85. Nor is there any question that in attacking a presumptively valid decree of divorce issued by a sister State, the full faith and credit clause demands that the attacking party bear the burden of proof that no domicile was established. Henry, supra, at p 102.
The Reininks were married in Holland, Michigan, on December 19,1929, and lived together as husband and wife until August 14,1965. In 1966 Mr. Reinink instituted an action for divorce in Ottawa county, Michigan. The action was dismissed after trial. On November 7, 1967, Mrs. Reinink commenced suit for separate maintenance under CL 1948, § 552.7 (Stat Ann 1957 Rev § 25.87). Mr. Reinink left for Arkansas on December 19, 1967. He obtained a pro oonfesso divorce in an Arkansas state court on March 25,1968.
Defendant had worked for the city of Holland for eight years. When he went to Arkansas he took a three-month leave of absence from his employment. He took with him what personal belongings he could carry in his car. He retained his membership in the Lion’s Club and VFW in Holland. He promptly returned to Holland two or three days after he secured his divorce and resumed his former employment with the city of Holland. Against this indicia of lack of domicile in Arkansas there is nothing in the record but the bland statement of defendant that he intended to permanently reside in Arkansas and returned to Michigan only because he could not find suitable employment there.
The trial court, we opine, was somewhat charitable in finding that defendant acquired a bona fide domicile in Arkansas. It is true that this Court hears divorce cases de novo and we do not generally reverse or modify unless convinced that we would have had to reach a different result had we occupied the position of the trial court. Wells v. Wells (1951), 330 Mich 448; Ethridge v. Ethridge (1948), 322 Mich 578. On the basis of the record in this case, we con- elude that we would have had to reach a different result. Our review of the testimony requires the conclusion that defendant did not acquire a bona fide domicile in the State of Arkansas and that his pro confesso judgment of divorce there is not entitled to full faith and credit in Michigan. As was said in Henry, supra, p 88:
“Michigan law provides no quick and easy divorce. Nor, when a married couple is domiciled in Michigan, may one party go to another State solely in order to procure a divorce with the expectation that it will subsequently he recognized in Michigan. Gray v. Gray (1948), 320 Mich 49. This appeal illustrates the tragic results of ignoring this long-established rule.”
Even if we were to accept the trial court’s finding that the Arkansas decree is entitled to full faith and credit, that decree would not affect plaintiff’s right to support because Michigan, in Malcolm v. Malcolm (1956), 345 Mich 720, adopted the concept of “divisible divorce” developed by the New York courts and the United States Supreme Court.
The United States Supreme Court gave constitutional approval to the idea in Estin v. Estin (1948), 334 US 541 (68 S Ct 1213, 92 L Ed 1561). Mrs. Estin brought an action for separate maintenance in New York before her husband sued for divorce in Nevada. Nevada’s pro confesso decree purported to terminate any support obligation of the husband. In affirming a subsequent New York determination that Mr. Estin’s obligation continued despite the Nevada decree, Justice Douglas said:
“New York was rightly concerned lest the abandoned spouse be left impoverished and perhaps become a public charge. The problem of her livelihood and support is plainly a matter in which her community had a legitimate interest.” 334 US at 547.
* * *
“The result of this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.” 334 US at 549.
In Vanderbilt v. Vanderbilt (1957), 354 US 416 (77 S Ct 1360, 1 L Ed 2d 1456), the Supreme Court made clear that the time sequence of the actions in Estin made no difference; the separate maintenance action could be brought after the foreign divorce decree.
In Malcolm, supra, as in the present case, the wife sued for separate maintenance in Michigan a few months before her husband obtained a pro confesso decree of divorce in Nevada. The trial court awarded support for the wife and the Supreme Court affirmed saying:
“Failure of the Nevada court to pronounce * * * judgment respecting support by Mr. Malcolm of Mrs. Malcolm left our circuit court free to adjudicate upon the matter * * * . This would be so even if the Nevada court had expressly assumed to determine judicially that the husband need no longer support his original mate.” 345 Mich 726.
Thus it would appear clear that a pro confesso decree of divorce obtained in another state does not terminate the Michigan spouse’s right to support.
Reversed. Costs to plaintiff.
All concurred. | [
32,
-9,
20,
13,
-28,
25,
-19,
-21,
-24,
24,
20,
-19,
-6,
15,
18,
-18,
-15,
47,
-15,
-23,
-52,
-23,
-11,
47,
28,
15,
28,
-5,
-26,
5,
11,
-53,
-25,
28,
-40,
-32,
7,
10,
12,
-18,
-28,
-43,
-30,
17,
-29,
40,
-19,
18,
3,
6,
-10,
-2,
-4,
-1,
-11,
27,
-39,
-1,
-10,
-44,
18,
19,
-20,
20,
18,
-3,
36,
87,
-11,
-50,
-6,
-67,
25,
-55,
2,
-28,
22,
18,
-37,
0,
20,
8,
19,
-15,
-18,
13,
-16,
7,
-67,
23,
-20,
47,
-61,
-32,
11,
24,
10,
11,
66,
-5,
-59,
4,
7,
50,
0,
10,
5,
-26,
34,
-32,
63,
12,
-28,
8,
-9,
1,
2,
-43,
-10,
-28,
-20,
41,
-10,
30,
61,
2,
-60,
-21,
24,
-24,
25,
-24,
-17,
-49,
3,
-42,
26,
-25,
-36,
-58,
103,
-20,
24,
-12,
28,
72,
0,
-46,
24,
-2,
0,
-7,
3,
43,
44,
12,
-11,
-22,
-18,
-7,
-6,
49,
-20,
-9,
-11,
-38,
23,
45,
6,
-24,
23,
53,
-30,
-7,
-26,
-20,
6,
-6,
-39,
-34,
5,
67,
-11,
-23,
1,
-11,
-51,
-24,
18,
11,
-22,
-61,
78,
12,
14,
35,
31,
-22,
-3,
-13,
43,
-38,
14,
49,
11,
1,
28,
2,
-22,
1,
-3,
26,
3,
-86,
-102,
-12,
-9,
-22,
-11,
-11,
23,
3,
7,
-13,
-74,
0,
-39,
-10,
75,
-30,
-63,
-38,
-4,
-10,
-19,
0,
21,
17,
30,
57,
5,
-4,
27,
5,
-25,
-29,
-61,
42,
-27,
2,
-50,
-33,
-16,
46,
15,
-17,
21,
10,
6,
61,
-15,
10,
-7,
-44,
1,
-31,
21,
26,
35,
-35,
17,
61,
31,
-19,
-8,
-9,
8,
57,
12,
22,
4,
36,
-22,
8,
-16,
-9,
40,
-13,
39,
38,
-8,
-84,
-1,
0,
-24,
4,
33,
-19,
-17,
32,
-12,
-32,
10,
38,
-13,
-50,
-52,
-61,
-5,
-20,
24,
28,
28,
-72,
8,
20,
20,
19,
-42,
-43,
-6,
-7,
31,
36,
-34,
-22,
11,
-35,
11,
20,
-14,
-7,
22,
-2,
7,
-71,
-6,
20,
-33,
-6,
32,
-4,
0,
14,
35,
17,
-3,
-1,
5,
21,
-31,
-20,
22,
55,
-19,
-15,
32,
-9,
-53,
4,
-12,
27,
-38,
-20,
-1,
67,
34,
-10,
16,
17,
-44,
-12,
-39,
-14,
-37,
-9,
-51,
19,
36,
-3,
-2,
-67,
13,
-12,
47,
8,
-56,
-54,
-44,
-47,
4,
-68,
28,
-32,
-19,
-9,
3,
-44,
-19,
19,
0,
12,
-13,
-24,
-17,
42,
-12,
-9,
-27,
0,
43,
-51,
7,
69,
17,
6,
7,
-20,
30,
-16,
3,
18,
-52,
-13,
-7,
-27,
24,
0,
33,
15,
-3,
92,
10,
-3,
44,
-24,
-37,
-26,
41,
68,
-27,
28,
17,
-8,
-16,
-20,
-7,
25,
56,
-30,
20,
-27,
32,
42,
-30,
-18,
31,
19,
-39,
-35,
37,
0,
-17,
-61,
32,
-38,
-47,
10,
-32,
27,
-45,
2,
2,
12,
-8,
-15,
-31,
3,
-44,
-58,
88,
31,
9,
-20,
-5,
1,
6,
-6,
-30,
-48,
-20,
35,
-24,
53,
-10,
-46,
-16,
0,
-65,
-18,
31,
-12,
27,
0,
3,
11,
-22,
-7,
7,
59,
60,
-14,
17,
43,
-7,
-33,
2,
-7,
-2,
47,
-22,
14,
-7,
-39,
16,
20,
7,
9,
0,
42,
14,
39,
-42,
-39,
1,
14,
14,
-10,
13,
9,
7,
54,
1,
0,
-27,
11,
-53,
-93,
-39,
-22,
40,
-40,
-16,
31,
27,
6,
-50,
2,
-5,
-49,
56,
8,
13,
1,
19,
-23,
-10,
1,
2,
-13,
4,
0,
32,
-3,
2,
27,
3,
12,
-11,
-31,
-35,
20,
-34,
-65,
-44,
13,
14,
14,
25,
-25,
-23,
-12,
38,
-29,
-2,
-15,
21,
6,
13,
33,
-14,
-25,
-37,
2,
-6,
-12,
-7,
23,
-9,
4,
41,
-28,
-31,
-5,
22,
23,
13,
-5,
-67,
-1,
12,
33,
-13,
-15,
-3,
8,
0,
8,
39,
-7,
14,
-34,
6,
-4,
0,
-2,
0,
-41,
-43,
-13,
56,
41,
-23,
18,
-34,
-10,
33,
-29,
3,
7,
-7,
68,
40,
38,
0,
1,
61,
-3,
5,
-17,
-10,
-34,
27,
58,
32,
9,
26,
48,
-25,
8,
-12,
11,
64,
73,
8,
9,
-2,
19,
21,
14,
-19,
0,
-23,
-5,
-13,
-5,
27,
40,
9,
-51,
17,
17,
-49,
-41,
-43,
-30,
-79,
58,
-32,
7,
3,
32,
6,
-11,
-79,
0,
-17,
16,
-6,
-17,
-16,
12,
0,
-23,
-14,
9,
35,
-5,
-34,
0,
-3,
27,
-54,
-28,
23,
-11,
3,
-56,
-11,
-7,
36,
25,
-32,
-26,
-42,
27,
18,
0,
-26,
-11,
4,
53,
-11,
80,
-13,
-10,
10,
40,
3,
8,
36,
-36,
-12,
-16,
6,
12,
32,
-3,
-40,
-4,
8,
26,
-26,
-20,
-9,
-21,
-37,
-49,
17,
20,
-89,
11,
-11,
-3,
-1,
28,
18,
30,
7,
0,
1,
-4,
35,
31,
-2,
-2,
31,
-7,
-14,
-10,
1,
-104,
-49,
-27,
10,
28,
-18,
11,
28,
-38,
26,
45,
10,
2,
31,
25,
2,
29,
-18,
-13,
-4,
-30,
5,
25,
-14,
24,
10,
41,
-35,
-2,
15,
0,
-48,
-4,
-10,
2,
0,
32,
-52,
0,
25,
-35,
32,
5,
-2,
6,
-1,
-24,
-11,
45,
-22,
-15,
37,
3,
22,
62,
34,
56,
8,
0,
24,
-16,
4,
10,
13,
-22,
19,
3,
-1,
26,
1,
-7,
-40,
-27,
23,
-66,
2,
-3,
36,
33,
-1,
18,
-6,
60,
-19,
18,
93,
10,
-12,
-6,
-12,
33,
-18,
26,
4,
32,
-8,
14,
-30,
-34,
11,
18,
13,
3,
-54,
17,
33,
-2,
-15,
-40,
-12,
-7,
-14,
-46,
-17,
-24,
12,
-9,
36,
2,
-27,
48,
-36,
7,
17,
44,
-26,
-20,
-1,
13,
20,
-18,
-13,
-28,
-33,
-38,
-13,
6,
13,
42,
25,
-16,
2,
-21,
-3,
-11,
18,
44,
25,
30,
-25,
-7,
-39,
22,
-35,
28,
-14,
41,
-6,
36,
-67,
-75,
60,
13,
18,
-6,
38,
-12,
-11,
37,
28,
43,
10,
-35,
-11,
-38,
46,
21,
-37,
45,
-32,
-24,
-31,
-13,
2,
3,
23,
76,
-8,
-3,
29,
-22,
-42,
49,
2,
-15,
-65,
32,
-59,
9,
67,
-17,
41,
-19,
-3,
22,
33,
-20,
26,
6,
-12,
7,
0,
12,
24,
-16,
13,
22,
-38,
-6,
-34,
2,
-2,
6,
-12,
1,
-74,
2,
21,
-9,
-9,
4,
-5,
43
] |
Per Curiam.
Defendant was convicted in a non-jury trial of breaking and entering a factory with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). On appeal, defendant contends that the trial court erred in allowing an unindorsed res gestae witness to testify at trial over defense counsel’s objection. The witness was indorsed during trial upon motion of the prosecutor. The trial judge permitted the indorsement; he was satisfied that the prosecutor had sufficiently explained failure to indorse sooner. By statute, MCLA § 767.40 (Stat Ann 1970 Cum Supp § 28.980), additional witnesses may be indorsed during trial by leave of the court. A review of the record fails to establish that the trial court abused its statutory discretion in allowing the witness to testify. People v. McCrea (1942), 303 Mich 213.
Defendant also contends that the evidence was insufficient to establish a prima facie breaking and entering. There was testimony that the factory was locked on the evening of the alleged offense; that plywood covering broken windows at the rear of the building had been removed, and that defendant was found hiding in the factory by police officers. Defendant’s contention that the people’s evidence did not establish breaking and entering is without merit. People v. Lambo (1967), 8 Mich App 320.
Affirmed. | [
12,
25,
-29,
-39,
-4,
-31,
-37,
12,
-53,
17,
13,
14,
39,
-50,
11,
-6,
14,
12,
61,
-20,
10,
24,
-39,
23,
-28,
-26,
17,
12,
-41,
31,
-36,
29,
13,
-4,
-28,
-9,
70,
4,
-17,
17,
-1,
-18,
20,
-34,
-50,
-38,
17,
13,
54,
7,
29,
24,
-46,
10,
20,
3,
0,
-11,
5,
14,
10,
15,
-1,
-68,
30,
0,
-20,
2,
-18,
-30,
-1,
-37,
-29,
11,
-10,
-42,
25,
66,
20,
38,
54,
-19,
31,
-48,
-12,
-21,
-32,
-87,
-30,
-51,
-19,
3,
-40,
0,
-29,
-29,
7,
-24,
58,
8,
-61,
-22,
-20,
-17,
20,
-1,
-54,
31,
-41,
7,
29,
-14,
19,
-7,
21,
25,
-24,
24,
-24,
3,
5,
-24,
11,
-50,
15,
-29,
30,
-38,
1,
-5,
26,
45,
22,
-9,
-24,
17,
27,
-14,
5,
12,
17,
50,
35,
13,
44,
34,
-53,
7,
8,
10,
-55,
-27,
5,
15,
-15,
28,
-80,
-22,
-15,
26,
6,
61,
-76,
-12,
19,
-6,
-49,
-18,
-4,
-49,
-6,
-6,
27,
-13,
17,
-53,
-33,
8,
-10,
-21,
-57,
11,
-33,
-21,
42,
14,
-27,
19,
-43,
-8,
21,
58,
-12,
4,
44,
19,
-20,
17,
28,
18,
27,
4,
-19,
-15,
24,
-13,
15,
34,
0,
-12,
4,
16,
-28,
-47,
35,
-24,
13,
48,
4,
20,
-28,
-57,
-22,
-27,
-25,
15,
-2,
10,
68,
11,
13,
-22,
22,
2,
-3,
-24,
-19,
-73,
62,
15,
0,
-9,
13,
-3,
-7,
-33,
-23,
22,
28,
-27,
38,
-11,
45,
1,
-53,
-9,
-26,
0,
-20,
25,
15,
46,
-27,
35,
0,
8,
23,
16,
-81,
21,
-10,
11,
1,
33,
-7,
3,
-29,
26,
-28,
5,
-21,
3,
-24,
14,
-34,
17,
-8,
2,
-21,
-6,
49,
15,
-41,
-18,
63,
6,
-6,
-31,
-91,
49,
5,
23,
-53,
-55,
-29,
-12,
-11,
10,
-9,
9,
2,
42,
12,
1,
27,
33,
-14,
-26,
36,
-15,
-59,
25,
-11,
-12,
-3,
-9,
38,
-45,
21,
-2,
-14,
16,
-15,
45,
-19,
25,
-28,
-23,
-6,
17,
13,
-2,
55,
-57,
-19,
-13,
-35,
23,
1,
-10,
100,
-36,
0,
-11,
14,
-6,
-68,
-5,
0,
-46,
52,
-23,
-13,
41,
-26,
4,
-31,
-25,
17,
51,
8,
-66,
0,
14,
0,
-38,
36,
-22,
-17,
33,
-6,
-3,
8,
-33,
-36,
11,
-25,
-2,
-22,
39,
-70,
-31,
6,
-43,
9,
50,
43,
17,
14,
-21,
-28,
14,
0,
23,
-26,
-49,
5,
22,
-1,
18,
-17,
69,
-5,
77,
-25,
-69,
32,
-10,
17,
6,
-28,
-4,
54,
30,
39,
4,
-13,
18,
-10,
-35,
-1,
-7,
-18,
-28,
27,
-15,
-40,
-22,
38,
41,
-2,
9,
-58,
-16,
80,
37,
-2,
-18,
27,
-28,
31,
38,
1,
-29,
31,
9,
44,
-7,
14,
-7,
-1,
-26,
8,
-3,
26,
-13,
-24,
-83,
6,
35,
30,
8,
15,
38,
-34,
-22,
-18,
49,
10,
65,
13,
-13,
38,
-7,
-29,
-6,
-28,
-32,
22,
36,
10,
27,
64,
-13,
9,
26,
3,
-33,
16,
34,
-24,
26,
-42,
-58,
9,
8,
23,
-23,
3,
2,
-14,
42,
-24,
10,
-7,
-35,
18,
2,
38,
-7,
-5,
-44,
23,
15,
-29,
27,
-38,
-14,
-27,
31,
72,
0,
42,
16,
41,
7,
12,
5,
-10,
17,
19,
39,
17,
-4,
54,
-43,
-9,
0,
-16,
6,
29,
34,
6,
-22,
1,
-41,
23,
66,
7,
9,
-43,
-11,
43,
31,
16,
-43,
-23,
26,
76,
5,
-10,
28,
-24,
-1,
25,
34,
20,
17,
-25,
-16,
4,
45,
6,
-37,
-15,
4,
0,
18,
35,
6,
-66,
-1,
-8,
-35,
-50,
-14,
-51,
-9,
25,
53,
43,
-8,
-54,
14,
1,
-47,
4,
25,
16,
-22,
55,
-20,
-43,
-37,
9,
-6,
-52,
1,
-18,
25,
5,
-22,
-8,
-12,
-57,
-31,
-11,
-16,
-9,
-47,
-58,
-22,
-50,
-6,
13,
-8,
33,
7,
-17,
4,
7,
1,
-16,
-46,
2,
-27,
29,
-27,
0,
-26,
12,
18,
31,
-42,
66,
1,
0,
-26,
27,
-15,
15,
26,
-40,
-6,
56,
9,
-30,
-41,
21,
7,
33,
6,
19,
32,
-19,
15,
-15,
19,
-53,
-25,
-7,
-24,
-5,
26,
2,
-52,
-31,
10,
18,
-7,
21,
24,
49,
11,
35,
-11,
53,
-14,
-29,
-22,
-8,
8,
43,
29,
25,
41,
20,
-40,
-28,
14,
-42,
7,
-22,
19,
38,
-2,
-83,
46,
13,
-7,
11,
-12,
50,
27,
-1,
11,
41,
9,
30,
-6,
1,
-14,
-2,
-13,
38,
50,
-18,
-35,
1,
3,
12,
11,
6,
-28,
-26,
14,
7,
-22,
1,
50,
1,
78,
20,
64,
-14,
20,
13,
7,
-39,
6,
29,
32,
8,
-39,
-33,
-6,
-31,
-37,
51,
3,
-3,
-11,
46,
-14,
22,
41,
-46,
10,
17,
-2,
6,
2,
8,
-23,
-27,
-58,
-10,
9,
18,
18,
38,
31,
-65,
23,
-2,
7,
12,
-4,
20,
34,
48,
-37,
15,
-5,
-12,
-50,
3,
3,
41,
-17,
15,
-26,
-52,
-57,
16,
12,
-7,
-19,
0,
15,
4,
57,
-4,
-46,
-19,
31,
-28,
-80,
-7,
-32,
5,
11,
27,
38,
-3,
-13,
8,
50,
-24,
-8,
30,
9,
15,
18,
30,
36,
10,
-57,
12,
-21,
42,
38,
10,
-17,
-35,
16,
14,
28,
30,
-16,
-23,
16,
-35,
-16,
2,
-30,
-38,
-34,
30,
-16,
14,
20,
-4,
26,
-2,
12,
-41,
-7,
3,
60,
50,
20,
15,
-20,
-14,
-25,
0,
-36,
19,
12,
10,
18,
-8,
4,
0,
-14,
89,
-54,
27,
-12,
-8,
11,
-12,
72,
32,
-21,
9,
-21,
-49,
0,
10,
-27,
2,
-24,
2,
43,
-37,
18,
3,
-15,
-25,
7,
-25,
22,
-23,
-26,
0,
-31,
-7,
7,
5,
-46,
-14,
-37,
43,
9,
2,
-46,
7,
-34,
3,
43,
-63,
28,
-41,
-8,
-43,
10,
4,
8,
-14,
0,
-45,
-17,
-21,
-17,
41,
-47,
4,
-2,
-19,
24,
12,
3,
36,
21,
-8,
-4,
3,
-34,
28,
-8,
37,
-35,
14,
-6,
-27,
51,
-1,
30,
-12,
-63,
-7,
-6,
1,
-88,
-6,
-14,
-26,
-20,
12,
-26,
5,
47,
-50,
28,
-36,
-72,
32,
57,
-28,
32,
56,
5,
12,
-2,
7,
-12,
-61,
39,
-11,
-58,
27,
-63,
-17,
10,
-19,
-41,
-31,
-27,
-43,
37,
4,
54
] |
Sharpe, J.
The defendant syndicate corporation executed four written instruments, assumed to be conditional sale contracts, on the purchase of certain goods from the plaintiff, on March 27th, May 6th, May 31st, and July 1,1918. There was default in payment; demand for possession was refused. On October 3, 1918, plaintiff brought replevin, and the property described in the writ was delivered to it. The defendant did not appear. Its default was entered on November 2d, judgment obtained on November 16 th, and the property soon after sold by plaintiff.
On October 26,1918, an involuntary petition in bankruptcy was filed against the syndicate corporation. It was adjudged a bankrupt. On January 21, 1919, the defendant trust company was appointed trustee of the bankrupt estate. On February 25, 1919, it filed a petition for leave to intervene and to set aside the default and judgment entered. The prayer of the petition was granted on December 5, 1919, and on February 14, 1922, it filed its plea and a notice thereunder. On the trial which followed, the defendant having waived a return of the property, the court entered judgment in its favor on a directed verdict for $8,781.58. . This judgment plaintiff reviews by writ of error.
1. The trial court held that the instruments by which title was reserved in the plaintiff were in law chattel mortgages, or liens securing payment. In this he was clearly right. The provisions in them were quite similar to those in the instrument considered in Nelson v. Viergiver, 230 Mich. 38, not then decided. Plaintiff’s counsel do not discuss the assignment of error based on such holding, so we do not further consider it.
2. As before stated, these mortgages were executed on May 31st and prior thereto. The sheriff took possession of the property under the writ of replevin on October 3d. The petition in bankruptcy was not filed until October 26th. The judgment against defendant was obtained and the property sold before the trustee’s petition for leave to intervene and defend was filed.
In directing a verdict, the court held that, as the chattel mortgages were not filed as required by the statute, they were void as to the claim of the trustee in bankruptcy representing the creditors of the insolvent.
At that time the decision of this court in Peter Schuttler Co. v. Gunther, 222 Mich. 430, had not been handed down. It was there held (quoting from the syllabus):
“Although creditors have a right to proceed to reach property covered by a chattel mortgage void because unfiled, they are given no lien under the statute which' is prior to the lien of the mortgage, and where no action is taken before bankruptcy the right is lost.”
We can see no distinction between the facts presented in that case and the one before us.
Our attention has been called to a late decision of the circuit court of appeals,-sixth circuit (Johnson v. Stimpson Computing Scale Co., 2 Fed. [2d Series] 699). It is suggested that the court there placed a different construction upon the provision in the bankruptcy act than this court did in the Gunther Case. An examination of the record and briefs in that case will disclose that the holding was based on the provision in the Kentucky statute reading as follows:
“The word ‘creditors’ as used herein shall include all creditors irrespective of whether or not they may have acquired a lien by legal or equitable proceedings or by voluntary conveyance.”
On the record as made, the motion of plaintiff for a directed verdict should have been granted.-
The judgment is reversed and set aside, with costs to plaintiff, and a new trial granted.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
-11,
25,
44,
-5,
-39,
33,
10,
-4,
9,
7,
18,
-4,
-23,
62,
-26,
21,
-17,
4,
-10,
22,
10,
-59,
-53,
-43,
-6,
2,
3,
-52,
25,
0,
56,
-33,
-36,
38,
-28,
-6,
-22,
0,
11,
-63,
-1,
16,
-33,
17,
-14,
-18,
11,
-71,
31,
0,
90,
-3,
45,
-44,
-40,
5,
-57,
13,
12,
-26,
-17,
-40,
31,
-12,
-42,
12,
22,
12,
-24,
16,
-62,
-6,
36,
-7,
6,
-1,
2,
-3,
4,
-48,
-1,
-62,
18,
3,
-23,
9,
23,
8,
-26,
-20,
26,
9,
-31,
-6,
2,
14,
17,
-3,
-1,
5,
36,
-11,
-28,
54,
16,
9,
-24,
-33,
-15,
3,
10,
-6,
29,
17,
-22,
39,
-36,
-21,
31,
-29,
7,
11,
12,
-44,
26,
28,
-30,
-11,
-6,
51,
-1,
-34,
-9,
49,
-12,
-36,
-36,
-44,
5,
-17,
-11,
7,
-16,
-35,
-2,
46,
0,
-27,
-1,
12,
-21,
-5,
9,
39,
34,
-10,
13,
-13,
14,
-105,
26,
-1,
1,
-34,
-35,
31,
-18,
-24,
-38,
9,
11,
1,
-25,
-41,
8,
-34,
-14,
-20,
-27,
-15,
-5,
44,
15,
-22,
15,
-21,
5,
14,
16,
-4,
-19,
-19,
31,
20,
-50,
-13,
-25,
15,
68,
55,
28,
-24,
-17,
-26,
-20,
-21,
11,
17,
-5,
26,
-49,
41,
-55,
-15,
-30,
28,
-28,
-49,
25,
31,
3,
32,
-20,
28,
-48,
-22,
16,
-17,
-26,
22,
-17,
-15,
1,
38,
6,
9,
-2,
8,
25,
12,
-29,
-10,
-20,
33,
-50,
11,
-19,
-57,
-43,
22,
-30,
24,
-41,
9,
-25,
-15,
-35,
-2,
13,
8,
13,
50,
-35,
8,
-20,
5,
38,
-13,
10,
26,
-16,
-12,
-1,
56,
3,
-28,
-11,
33,
-22,
-2,
37,
-19,
2,
-31,
-8,
8,
16,
6,
-47,
24,
-4,
7,
28,
8,
18,
-32,
-15,
-19,
43,
-30,
-29,
11,
33,
7,
5,
5,
-30,
1,
-5,
-34,
-30,
21,
-6,
-47,
55,
0,
26,
19,
27,
-38,
-3,
33,
0,
8,
16,
-8,
47,
-51,
-13,
30,
-48,
-19,
40,
13,
-6,
-2,
18,
16,
-35,
2,
-25,
37,
19,
-34,
14,
29,
46,
-13,
-12,
42,
-52,
-19,
-33,
14,
7,
-2,
39,
1,
-60,
20,
40,
9,
-35,
42,
7,
11,
-39,
-7,
-21,
49,
30,
57,
-25,
-25,
-49,
1,
-56,
-13,
-34,
36,
-40,
-5,
35,
20,
1,
-25,
18,
27,
-11,
-3,
-30,
35,
-8,
22,
-10,
-10,
-12,
-50,
-43,
-32,
51,
43,
12,
-4,
-23,
-18,
10,
-1,
-12,
38,
-18,
-15,
17,
-17,
-23,
-23,
-7,
-10,
42,
-19,
24,
3,
-16,
6,
7,
-28,
28,
12,
-64,
-17,
-21,
36,
6,
-35,
41,
6,
-70,
13,
28,
19,
11,
0,
-11,
65,
55,
-35,
-11,
-13,
70,
16,
-2,
-4,
26,
3,
52,
17,
52,
-39,
32,
-45,
63,
-27,
0,
-6,
-20,
-12,
-6,
-30,
16,
-4,
-4,
10,
-16,
-15,
-13,
22,
-9,
32,
-13,
6,
-25,
14,
25,
-16,
-12,
-12,
-29,
-24,
6,
-22,
51,
4,
-1,
-14,
-48,
-52,
-33,
5,
-5,
33,
-5,
-42,
10,
16,
10,
29,
20,
-41,
45,
32,
-7,
-8,
10,
22,
4,
49,
-11,
-45,
46,
54,
18,
12,
-69,
12,
-56,
11,
12,
57,
22,
-12,
-55,
-7,
-26,
7,
-36,
17,
12,
-50,
-23,
1,
-56,
48,
33,
9,
11,
22,
28,
-14,
-18,
-11,
-16,
-33,
53,
56,
-6,
-53,
15,
-7,
40,
17,
-35,
23,
4,
-32,
16,
-58,
-8,
14,
-36,
-47,
-25,
40,
14,
31,
-13,
-30,
-14,
-52,
46,
-38,
0,
18,
7,
-91,
9,
60,
15,
-14,
-47,
42,
24,
18,
19,
1,
-45,
7,
27,
53,
-21,
38,
-60,
14,
-19,
-61,
-57,
-52,
1,
1,
-13,
-4,
32,
-11,
-3,
18,
38,
-10,
54,
-4,
-11,
-2,
28,
-13,
-19,
13,
-19,
-32,
7,
6,
-50,
26,
22,
0,
-3,
25,
-53,
23,
45,
10,
-22,
-19,
-13,
18,
27,
-13,
-24,
21,
-26,
4,
66,
-16,
-42,
6,
38,
-33,
25,
-16,
21,
-10,
35,
-44,
2,
-1,
-7,
-1,
67,
3,
13,
-34,
-6,
22,
41,
-1,
23,
-22,
-27,
-39,
0,
30,
-7,
1,
-28,
13,
9,
17,
2,
-64,
34,
-18,
8,
4,
-17,
28,
-42,
-22,
3,
0,
21,
25,
7,
-18,
49,
22,
2,
50,
9,
6,
-45,
47,
27,
-10,
0,
-26,
-16,
-45,
-46,
22,
14,
23,
-7,
-1,
9,
-35,
55,
-1,
11,
9,
-13,
-65,
-43,
15,
14,
-8,
-20,
54,
-1,
32,
-3,
-28,
-63,
-49,
16,
13,
11,
54,
-18,
10,
-24,
10,
12,
-12,
15,
36,
21,
-18,
-8,
-6,
-16,
-2,
-19,
4,
-18,
44,
-6,
12,
10,
47,
20,
-28,
-34,
-52,
-29,
-13,
-10,
-32,
25,
-9,
65,
11,
74,
-27,
0,
-9,
1,
-15,
-13,
-37,
-24,
47,
43,
-5,
39,
-43,
-35,
-21,
-28,
-14,
16,
9,
-10,
6,
-25,
1,
-46,
0,
54,
32,
18,
48,
35,
-14,
-71,
-20,
-15,
-14,
8,
25,
-51,
-21,
21,
-26,
-18,
21,
3,
23,
-48,
20,
-19,
18,
-37,
26,
18,
-30,
-46,
27,
-17,
12,
69,
15,
-34,
17,
-62,
-21,
5,
-5,
20,
13,
-23,
17,
-13,
-23,
31,
-6,
-11,
5,
-6,
9,
-18,
47,
-11,
11,
11,
6,
-10,
-23,
70,
-7,
-38,
-48,
35,
-46,
-11,
46,
-27,
38,
-5,
44,
2,
-15,
27,
-23,
-13,
27,
-14,
29,
-22,
3,
55,
-25,
-45,
67,
-17,
-34,
-12,
13,
44,
-27,
-7,
-33,
47,
30,
-9,
0,
-15,
-22,
11,
18,
31,
31,
-14,
-9,
28,
-35,
16,
-27,
-30,
39,
23,
-46,
-9,
24,
3,
-34,
-23,
-11,
34,
-2,
28,
64,
34,
34,
5,
24,
-11,
-7,
25,
-18,
-8,
-35,
5,
-8,
9,
-44,
-42,
-16,
-9,
21,
31,
36,
-18,
0,
-27,
11,
18,
30,
1,
14,
-19,
-19,
-8,
-46,
-22,
-4,
3,
-4,
16,
0,
28,
-20,
-7,
18,
43,
-25,
8,
-44,
-23,
7,
42,
-28,
-3,
-6,
31,
-10,
-2,
62,
18,
-35,
16,
7,
-6,
-40,
39,
-21,
8,
30,
6,
14,
30,
-3,
31,
-14,
-6,
-25,
32,
-9,
23,
-23,
-1,
19,
-30,
-24,
2,
-16,
27,
68,
-2,
-19,
6,
46,
-8,
-15,
44,
24,
-33,
31
] |
Bronson, J.
The issue presented is whether child support arrearage payments are the property of the mother for the purpose of determining eligibility of aid to the disabled.
The department of social services terminated plaintiff Clotilde Gallagher’s aid to disabled grant because she was in possession of personal property in excess of the statutory maximum of $750. The department based its decision on the ground that child support arrearages paid under the uniform reciprocal enforcement of support act to a mother who was receiving aid to the disabled assistance was the property of the mother.
Plaintiff, Clotilde Gallagher, a resident of North-ville, Michigan, has been a recipient of public assistance from the State of Michigan since 1964, when in December she established eligibility for aid to dependent children. At that time, she was maintaining a home for her daughter, Anne, then aged 11. In March of 1965, plaintiff was found eligible for public assistance under the aid to the disabled program. In September of 1965, the aid to dependent children case was closed, there being no further need for assistance under that program for the reason that Anne was attending St. Joseph’s Academy at Adrian, Michigan, and her expenses were met from private sources.
Plaintiff is severely handicapped, having had polio, which limits her mobility and demands the use of a crutch. She also suffers from rheumatoid arthritis and from heart complications. The plaintiff has been in and out of the hospital continually since she began receiving aid to the disabled. There is no question of her eligibility for this categorical assistance program. The only question as to her eligibility is whether she possessed personal property above the statutory maximum when she was terminated in August of 1967. The only period when the plaintiff did not receive aid to the disabled assistance was during the period in issue in this case, that is, from September, 1967, through April, 1968.
The plaintiff was abandoned by her husband, who left for Puerto Rico in the spring of 1964. A divorce was obtained in the Wayne County Circuit Court, and a court order for both alimony and child support was entered on July 19, 1965. On January 19, 1965, an order for child support for Anne in the amount of $200 was entered in the general court of justice for the commonwealth of Puerto Rico. Amounts were originally set in the latter order for $200 per month, which was increased to $225 per month on August 24, 1965, to cover a large arrearage.
The termination of plaintiff from aid to the disabled in late August of 1967 arose out of an investigation by a caseworker for the department of social services on July 3, 1967. The caseworker had received from two or three banks reports indicating over $5,000 in checking and savings accounts, and in a time savings certificate. A representative of the department called the plaintiff on the telephone and informed her that she would be terminated by the next check, and the letter of termination was sent on August 29, 1967. Although an investigation continued, no attempt was made to communicate with the plaintiff nor to ask her assistance in order to clarify the matter. Before the hearing, the plaintiff was not given an opportunity to explain the source of ownership of the funds, nor given the opportunity to establish her continued need. On October 21, 1967, the plaintiff’s attorney wrote to the defendant requesting a hearing. A hearing was held on November 9 of 1967.
At the hearing several accounts were indicated. These accounts totaled $5,105.22. $786.45 of this amount was held in a special checking account in plaintiff’s name. The referee found that $395 in this account was Anne’s money. Its source was gifts from a friend. The money was placed in the account so that the plaintiff could expend the money for Anne’s educational needs. The remaining $391.45 was found to he the property of the plaintiff, and this she does not dispute. Ten dollars, apparently plaintiff’s money, was in another account.
$308.77 was held in a savings account in the joint names of the plaintiff and Anne. Monies deposited in this account had been used solely for Anne’s school expenses. The referee found that the $308.77 represented personal savings of Anne and was not the property of the plaintiff.
$4,000 was in a time savings certificate in the joint names of the plaintiff and Anne. $2,756.45' of this amount came from bequests turned over to the plaintiff to be used for Anne’s education and $325.37 came from Anne’s personal savings. The balance of $918.18 consisted of the two child support arrearage payments of $474.18 and $444. The plaintiff testified that the entire amount on deposit in this savings certificate was being held to be used solely for Anne’s education expense. The referee found that the two child support deposits were “not Anne’s property, but income to Mrs. Gallagher, and as such, now set aside and converted to a bank deposit, must be considered available property to Mrs. Gallagher.”
The $444 consisted of four checks sent by Mr. Gallagher pursuant to the uniform reciprocal support enforcement act to the friend of the court. The cheeks represented accumulated child support payments to cover arrearages. As indicated in the letters from the child welfare worker, most of the child support payments sent by Mr. Gallagher were in the amount of $111 while the uniform reciprocal support enforcement act order requires payments of $255 per month.
The $474.18 represents the amount of a bequest from the estate of an uncle to Anne’s father. Pursuant to a court order issued by the probate court, the bequest, while it was still part of the estate funds, was made payable to the friend of the court, in order to apply on past child support arrearages.
There is nothing in the record to indicate that the plaintiff accepted any public assistance or direct relief for Anne since the 1965 termination, although Anne might be eligible.
Summarizing, the referee found that $391.45 in the special checking account was the plaintiff’s property, and this is not disputed; and that the two child support arrearage payments of $474.18 and $444 were also plaintiff’s property, and this is disputed.
Anne was enrolled in St. Joseph’s Academy in Adrian, Michigan, on the advice of Hawthorne Center where she was consulting. After Anne entered St. Joseph’s Academy, her expenses were largely covered by private sources and gifts and from Anne’s earnings.
While she was in the academy, Anne returned home weekends and her mother, the plaintiff, maintained a home purchased by her husband, including the making of mortgage payments. Some money was paid for her support from plaintiff’s special checking account, but it does not appear whether the amount so paid represented expenditures by the plaintiff in excess of those for which she had received support money from Anne’s father. In any event, there is no evidence that any particular portion of the two arrearage payments of $474.18 and $444 were applicable to expenditures by the plaintiff for Anne’s support in excess of other support payments received from Anne’s father.
On December 20, 1967, the director of the department of social services issued his decision upholding the county welfare department in their cancellation of the grant because, “as of the date of closing you own personal property in excess of the maximum of $750 permitted for the eligibility for an aid to the disabled grant.” He concluded that the two sums of $474.18 and $444, “coming from child support payments are legally your property inasmuch as they were income to you, thereafter converted to bank deposits.” Thus, these two funds in addition to the balance of the special checking account amounted to a total of $1,309.63 of personal property and in excess of the $750 property maximum. All other monies in question were considered as property of the daughter, Anne.
On January 17, 1968, a claim of appeal was filed in the circuit court. On February 16, 1968, a complaint was filed. On March 8, 1968, defendant’s motion to dismiss was denied in the Wayne County Circuit Court. On February 19,1969, a hearing was held before a judge of the Wayne County Circuit Court and the appeal was dismissed. Judgment was entered upholding the decision of defendant that the Wayne County department of social services was correct in canceling plaintiff’s aid to the disabled grant.
The trial court stated in its opinion that since the arrearage support payments were maintained by plaintiff Gallagher for at least a period of 90 days, this was “evidence that they were not immediately used or needed for the benefit of the child, became her [plaintiff’s] funds, and in my opinion, she was not required to use those funds, paid on the arrearage, for the support of the child. She could do so if she chose to, but in my opinion, they were not subject to such trust that they could not he used for her benefit as well.” Moreover, the burden was on the plaintiff to establish that the funds belonged to someone else and that “the disabled person here did not establish that the funds were not hers.”
Plaintiff Gallagher was reinstated to aid to the disabled on April 22,1968. According to the record the plaintiff received no public assistance or general assistance from either the state of Michigan or the county welfare department between August 29, 1967 and April 22, 1968. The amount of assistance of which she was deprived is not entirely clear, but it does appear to be a sum several hundred dollars greater than the $560 differential between the $1,-309.63 held to be her property and the $750 limitation.
This appeal requires an interpretation of Michigan Administrative Code, 1954, R 400.12 Rule 400.12 provides in pertinent part as follows:
“17(a) A person * * * will be considered ineligible on the basis of need for * * * aid to the disabled if he owns personal property * * * in excess of $750.”
This rule was passed pursuant to statutes which provide:
“The commission may further define by rule the words ‘permanently and totally disabled.’ ” MCLA § 400.25 (Stat Ann 1968 Rev § 16.425[1]).
and
“After further investigation * * * , the amount and manner of giving assistance may be changed, or the assistance may be withdrawn if the state department finds the recipient’s circumstances have changed sufficiently to warrant such action.” MCLA § 400.43 (Stat Ann 1968 Rev § 16.443).
An analysis of this issue and a review of the public policy underlying support payments to minors and welfare assistance to qualified recipients establishes that support payments are for the benefit of the child and should be considered the property of the child.
“[T]he maintenance of a child is a common-law obligation resting upon the father and enforced, in a divorce decree, under power conferred by statute. * * * The divorce statute relative to the custody and maintenance of children of the parties is in recognition of the common-law obligation resting upon the father and leaves it to the court to prescribe the amount to be paid by the father for such purpose. The purpose is to assure support of the child, and, as long as the need exists, the obligation and power remain.” West v. West (1928), 241 Mich 679, 684. (Emphasis added.)
In order to effectuate this policy, Michigan statute safeguards and provides for the preserving and spending of these funds. CL 1948, §§ 552.251, 552.252 (Stat Ann 1957 Rev §§ 25.171, 25.172). Herpolsheimer v. Herpolsheimer (1947), 318 Mich 200.
“[T]he statute constitutes such children special wards of the court and makes it the duty of the court to safeguard their interests.” West, supra, pp 685, 686.
The fact that support payments are not considered the property of the parent is recognized by the Internal Revenue Code and Michigan tax statutes.
“Subsection (a) shall not apply to that part of any payment which the terms of the decree, instrument, or agreement fix, in terms of an amount of money or a part of the payment, as a sum which is payable for the support of minor children of the husband.” Internal Revenue Code § 71(b), 68A Stat 19 (1954), 26 USCA § 71(b).
The Michigan income tax act provides that the income subject to tax shall be “the same as taxable income as defined and applied to the subject taxpayer in the Internal Revenue Code, except as otherwise provided in the act.” MCLA § 206.2 (Stat Ann 1970 Cum Supp § 7.557[102(3)]).
Policy dictates that, as far as support payment arrearage is related to aid to the disabled assistance, the mother should he considered a guardian, custodian, or trustee of the funds. This is more in tune with the mother’s fiduciary responsibility in expending the funds. It is also a more realistic view in the determination of assistance programs.
This is not to say that this rule should he inflexible. Abuses should he correctable. However, the fact that abuses could occur is, in this Court’s opinion, not a sufficient reason for ruling that these contested funds were the plaintiff’s income for the purpose of determining her eligibility for aid to the disabled.
Defendant relies on Sonenfeld v. Sonenfeld (1951), 331 Mich 60, and Renn v. Renn (1947), 318 Mich 230. But the instant appeal can he distinguished.
First, these two cases hold that the arrearage should be considered the property of the mother because the mother had to spend her own income to support her daughter due to the default on the part of the husband. As previously mentioned, the evidence in this case does not establish that the arrearage payments were applicable to expenditures by the plaintiff for Anne’s support in excess of other support payments received from Anne’s father.
The second distinguishing factor is that the Renn rule is not a general rule.
“As regards income, appellant concludes that pursuant to the decree his income would be $5,527 whereas that of appellee would be $10,277. In reaching this result he treats the $5,200 annually, awarded in the decree for the maintenance of the children, as income to the appellee. The decree does not provide for alimony. Appellant by decree is bound to support his children until they reach the age of 18 years. This is not income that accrues to appellee [wife], although she is given custody of the children and must look after the expenditure of the amounts paid by appellant.” Cartwright v. Cartwright (1954), 341 Mich 68, 72.
For these two reasons, at least, Sonenfeld and Renn are not determinative of this appeal.
The remaining arguments of defendant state the legal rights of plaintiff. The existence of these legal rights is completely compatible with the legal duties of a guardian, custodian or trustee. Therefore, they too fail to be dispositive of this appeal.
The fact that child support payments were made to the mother instead of to the child does not alter the fact that those payments are for the benefit of the child and not the mother. Child support is an independent obligation of the father. It is separate from his obligation to support his wife. It is measured by the needs of the child. Child support payments can be used only for the benefit and care of the children. A mother and custodian has no property right in child support payments. The money is not the mother’s income, even though she receives it to use for the minor.
Reversed and remanded for the entry of an order directing the defendant to pay the plaintiff the benefits she would have received that were not paid to her during the period her benefits were terminated.
Levin, P. J., concurred. | [
-47,
32,
-21,
52,
19,
-26,
9,
1,
8,
-20,
-16,
15,
10,
19,
17,
6,
-25,
-8,
-25,
10,
-78,
32,
-20,
16,
52,
13,
38,
-23,
-42,
27,
3,
-46,
-15,
42,
-13,
21,
56,
-57,
32,
-20,
42,
6,
-31,
-1,
0,
4,
0,
4,
6,
-15,
-35,
11,
-4,
-1,
-5,
51,
0,
-34,
-24,
-54,
-20,
-28,
-29,
-16,
44,
3,
24,
-20,
-6,
-45,
39,
22,
-30,
-53,
-14,
-1,
-15,
21,
38,
67,
26,
-34,
-12,
-20,
13,
6,
-26,
20,
-59,
-42,
-55,
-22,
-22,
73,
0,
25,
58,
12,
19,
-26,
-71,
-24,
22,
32,
26,
23,
9,
-41,
-39,
-10,
21,
-22,
33,
11,
-24,
36,
-27,
-7,
13,
5,
7,
10,
7,
-18,
72,
9,
-39,
-8,
55,
-2,
21,
-3,
-5,
6,
-54,
-7,
20,
-22,
8,
-22,
-19,
-35,
22,
-73,
25,
6,
35,
-46,
21,
-49,
17,
-4,
4,
31,
42,
16,
32,
-20,
27,
-49,
13,
-21,
-15,
-4,
-3,
-71,
27,
84,
38,
-15,
58,
-22,
-34,
0,
-25,
-16,
42,
-8,
-14,
14,
6,
8,
-8,
30,
7,
-7,
-44,
-17,
-30,
-35,
8,
-12,
6,
54,
-19,
53,
54,
-3,
-27,
7,
-22,
6,
44,
7,
-6,
4,
27,
-57,
-76,
-26,
45,
15,
0,
-44,
-62,
-40,
-1,
19,
-56,
59,
-1,
32,
23,
-30,
-31,
-28,
-37,
-23,
-10,
-13,
39,
46,
21,
-34,
-29,
5,
-14,
-21,
0,
50,
-17,
-12,
-22,
-79,
45,
16,
10,
31,
39,
30,
22,
46,
-44,
29,
-23,
-97,
17,
-12,
16,
-18,
-18,
24,
31,
7,
62,
2,
-11,
74,
-39,
-16,
22,
-10,
-20,
-25,
-4,
-51,
-4,
7,
-3,
20,
3,
31,
-5,
12,
-4,
-21,
-27,
-31,
50,
-6,
31,
-22,
43,
-45,
-19,
-20,
-36,
-1,
-19,
39,
-40,
11,
-6,
61,
5,
-5,
48,
21,
10,
3,
11,
-15,
21,
-19,
49,
-18,
-10,
-73,
2,
34,
52,
9,
-25,
27,
23,
0,
39,
-25,
-53,
7,
2,
41,
4,
-22,
64,
9,
-17,
-7,
-31,
-16,
23,
5,
47,
3,
-14,
-56,
-25,
16,
54,
16,
-6,
57,
19,
26,
30,
4,
17,
-8,
-31,
43,
18,
2,
-3,
-13,
-1,
58,
22,
4,
-9,
6,
11,
-39,
23,
-6,
-51,
-34,
19,
17,
5,
-37,
-14,
-20,
8,
37,
10,
2,
-10,
-10,
-30,
-39,
-17,
-42,
9,
1,
40,
-12,
12,
26,
-20,
-58,
-7,
28,
-2,
9,
-21,
14,
36,
-6,
-43,
-33,
-32,
-32,
-11,
0,
8,
19,
64,
-70,
-39,
-11,
-2,
6,
26,
-33,
0,
20,
-6,
17,
-13,
61,
-32,
-17,
14,
28,
29,
-14,
27,
-18,
5,
5,
-24,
34,
-17,
40,
37,
18,
-52,
-58,
11,
-32,
25,
-21,
-37,
66,
-9,
-67,
33,
3,
-61,
-31,
-15,
3,
51,
31,
31,
-28,
-56,
14,
-14,
-1,
-114,
-1,
-3,
-6,
-16,
60,
-27,
-5,
6,
29,
19,
5,
46,
15,
27,
9,
-21,
-35,
-47,
-3,
52,
-73,
-16,
14,
68,
-2,
-51,
10,
6,
-22,
41,
35,
64,
12,
21,
-90,
7,
-40,
-55,
-25,
-71,
-13,
39,
3,
15,
35,
53,
-10,
83,
20,
10,
68,
-14,
-13,
20,
-26,
-24,
24,
0,
45,
-16,
5,
0,
0,
-37,
44,
37,
55,
-41,
35,
-22,
55,
-19,
-23,
-22,
0,
34,
3,
-9,
-2,
-13,
-1,
28,
22,
10,
24,
-19,
25,
21,
-37,
-50,
10,
4,
-6,
-23,
-66,
0,
-18,
0,
36,
-19,
5,
2,
-11,
-50,
50,
27,
41,
2,
-23,
-5,
16,
-21,
-18,
-2,
5,
53,
24,
31,
-43,
16,
-4,
-1,
-38,
-36,
-26,
-45,
-3,
-13,
11,
4,
-7,
-6,
-26,
-25,
-14,
25,
18,
12,
-70,
64,
53,
11,
-78,
0,
-73,
13,
-20,
38,
-7,
-11,
5,
15,
19,
-29,
9,
-2,
28,
51,
26,
58,
-8,
16,
-71,
-22,
14,
-10,
27,
-21,
-20,
-10,
38,
-41,
36,
-38,
6,
18,
-14,
-16,
-43,
-51,
80,
-23,
-17,
10,
6,
-25,
-9,
-5,
-1,
-3,
-26,
-22,
36,
65,
37,
23,
29,
-22,
53,
-44,
14,
-3,
36,
-17,
9,
-21,
16,
10,
-41,
-50,
-6,
-26,
35,
-25,
-6,
9,
-11,
-15,
-18,
30,
10,
-23,
-6,
27,
-38,
-3,
61,
1,
76,
-18,
54,
-82,
21,
-16,
40,
-33,
1,
-10,
-1,
-3,
-22,
39,
-12,
-28,
16,
3,
-37,
-47,
-27,
-95,
-5,
31,
-81,
-28,
-17,
69,
-32,
-13,
14,
-11,
19,
-39,
27,
4,
23,
5,
-7,
-14,
24,
-13,
2,
44,
3,
-1,
-24,
-8,
-10,
-27,
4,
-34,
-55,
-7,
-15,
-80,
-26,
10,
26,
14,
28,
-38,
54,
-2,
38,
-13,
4,
-58,
-5,
91,
-26,
-36,
-1,
-11,
-33,
-2,
-15,
6,
-13,
4,
-82,
57,
7,
50,
40,
27,
-25,
28,
-94,
-18,
1,
-39,
18,
12,
-35,
0,
16,
-11,
-15,
8,
-28,
12,
11,
-32,
-4,
66,
40,
-17,
44,
-41,
-7,
-30,
-12,
0,
8,
-18,
49,
49,
30,
63,
11,
22,
-26,
32,
-9,
-12,
26,
1,
29,
-1,
14,
45,
27,
32,
-16,
-12,
11,
6,
-4,
17,
44,
-20,
-14,
10,
-73,
20,
14,
-8,
20,
17,
28,
5,
-81,
-9,
8,
7,
-55,
-20,
0,
5,
-46,
12,
12,
-36,
1,
-16,
15,
-29,
38,
44,
-12,
-35,
-22,
-38,
-28,
27,
22,
-6,
-52,
-24,
-17,
13,
25,
-46,
57,
4,
56,
19,
-32,
-23,
35,
67,
49,
3,
-22,
-5,
-27,
-1,
11,
-15,
-72,
21,
36,
-36,
-39,
17,
58,
9,
-15,
-2,
-37,
-41,
-24,
23,
13,
-4,
-10,
14,
-20,
-6,
-5,
-4,
-47,
-19,
-31,
-15,
-9,
-11,
-10,
-23,
40,
-16,
-24,
0,
37,
54,
-73,
-17,
-49,
41,
7,
-7,
23,
-60,
38,
0,
63,
29,
0,
-27,
-6,
-17,
-11,
15,
28,
14,
-36,
-14,
7,
-21,
23,
-47,
51,
7,
12,
53,
35,
-7,
-5,
9,
20,
-22,
-3,
-31,
1,
35,
-22,
40,
39,
24,
-33,
-20,
-31,
-62,
-11,
-16,
-61,
-32,
-14,
-63,
-42,
54,
10,
19,
4,
14,
-28,
14,
30,
63,
-8,
-4,
-29,
7,
27,
48,
-12,
15,
-28,
-53,
1,
36,
25,
-5,
3,
42,
-19,
-22,
4,
-26,
15,
43,
-6,
49,
2
] |
Fellows, J.
Plaintiffs had a large students’ rooming house at Ann Arbor which they were buying on land contract. Defendant leased it of them for a period of years. She owned property in Florida and negotiations were opened between them for an exchange of properties. We are satisfied defendant represented that she had a clear title to the Florida property and that no one but herself had any interest in or claim on it. Before the deal was "closed Mr. Austin made a trip to see the Florida property, defendant paying one-half the expense; he found no one in possession of the property or claiming any interest in it; defendant exhibited to plaintiffs an abstract showing good title. The deal was closed, plaintiffs taking the Florida property at $10,000, and defendant taking the Ann Arbor property at $25,000; this was late in August, 1923. Soon thereafter Mr. Austin, his two sons and their wives and a grandchild started for Florida, — driving overland. When they arrived they found a man named Rice in possession of the premises, and his negro help occupying the house and barn. Mr. Rice showed plaintiff a letter from defendant to his wife replying to one written by Mrs. Rice for her husband in which defendant agreed that Mr. Rice should have the use of the property until June, 1924, if he would keep the growth out from the buildings. Mr. Rice had accepted this offer by taking possession, had cut the weeds on the premises, made some improvements and put in a flowing well which he largely used to irrigate adjoining lands, all at an expense of over $600. He declined to surrender possession of the premises although he did permit plaintiff to do some work about the grove. Mr. Austin wired the broker through whom the deal was made the situation and he ■ took the matter up with defendant. She denied giving Rice permission to occupy the premises and wired him to vacate. Mr. Austin obtained another place for his family and remained in Florida until about Christmas time. His wife, who h'ad remained at Ann Arbor, and the broker unsuccessfully attempted to straighten out matters with defendant and, on Mr. Austin’s return, tender of all that had been received. from defendant was made to her and refused. This bill for a rescission of the transaction was then filed. From a decree for plaintiffs, defendant appeals.
On behalf of defendant it is insisted that a court of equity is without jurisdiction and a motion to dismiss the bill was made on that ground in the court below. This contention can not be sustained. In the recent ease of Mulheron v. Henry S. Koppin Co., 221 Mich. 187, this court said:
“If not before, at least since the decision in John Hancock Mut. Life Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), this court has recognized the concurrent jurisdiction of the court of equity in actions involving fraud where something more than a money judgment is necessary to work out the rights of the parties. * * * But where something beyond a money decree is sought and the interposition of a court of equity is necessary to work out the rights of the parties this court has not been grudgeful in entertaining equity jurisdiction. In the instant case cancellation of a written instrument is sought and relief from a forfeiture asked. Both furnish grounds for equitable relief, and the court of equity having assumed jurisdiction will retain it to work out the rights of the parties. The plaintiffs have sought the proper forum.”
So in the case now before us there is involved the cancellation of several written instruments and something beyond a money decree is sought. The case was properly brought on the equity side of the court.
Upon the facts we are persuaded that plaintiffs should prevail. The trade was made by plaintiffs in reliance upon a good title and immediate possession. It may be that defendant believed that Mr. Rice would vacate on her request and that she believed her letter did not give him any rights; but upon its most favorable construction it was an offer from her to Mr. Rice that he should have possession until June, 1924, on condition of certain things being done by him; these things and more were done by him and after the expenditure by him of over $600 in reliance upon her offer, if we treat it as such, Mr. Rice quite naturally declined to vacate. Irrespective of defendant’s good faith in making the representations, they amounted to fraud in law because untrue in fact. Plaintiffs were not bound to suffer the delay incident to litigation with Mr. Rice (Scadin v. Sherwood, 67 Mich. 230; Gerycz v. Zagalski, 230 Mich. 381); a legal fraud had been perpetrated on them justifying them in rescinding the deal.
But there is one feature of the decree which can not be sustained. Rescission of the deal was decreed, and in addition plaintiffs were given a decree for the expenses of the trip to Florida including those of the two sons and their families, and for their time while there. This in no way enhanced the permanent value of the premises and should not have been allowed. When plaintiffs discovered that they had been defrauded two courses were open to them: To sue for damages, or to rescind. They could not do both. They chose to rescind. Upon the authority of Patten v. Downer, 227 Mich. 95, plaintiff’s claim for the expenses of himself and his two. sons and their families and for their time should have been disallowed.
As this was a substantial sum ($2,148.02), defendant will have costs of this court. In accordance with this 'opinion,
The decree will be modified and affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, and. Steere, JJ., concurred. Wiest, J., concurred in the result. | [
-3,
22,
16,
-26,
-24,
-23,
37,
76,
12,
-17,
11,
6,
5,
29,
7,
14,
28,
-22,
-18,
9,
-8,
-16,
-34,
-7,
-18,
-41,
9,
-41,
45,
6,
-2,
-6,
-16,
7,
9,
0,
14,
-7,
8,
-6,
2,
1,
-5,
6,
23,
38,
9,
-4,
31,
-6,
-8,
-41,
-19,
1,
-8,
-19,
-50,
35,
1,
27,
-21,
-1,
-25,
-22,
-3,
23,
47,
-19,
4,
18,
8,
-57,
6,
-17,
19,
-27,
28,
20,
-6,
-51,
68,
7,
23,
-33,
-8,
-11,
42,
-43,
11,
-10,
-73,
11,
-1,
15,
9,
20,
-1,
38,
7,
9,
-12,
-19,
-49,
-9,
17,
20,
-31,
-25,
-33,
-22,
11,
-12,
20,
36,
1,
-6,
-11,
-73,
-54,
-19,
2,
27,
-5,
-28,
0,
42,
-55,
-12,
3,
-16,
36,
-5,
-51,
37,
-10,
17,
36,
-21,
35,
-42,
0,
57,
-14,
0,
15,
32,
-30,
-3,
-36,
-49,
-9,
11,
-41,
-17,
10,
-2,
63,
1,
23,
-18,
14,
-8,
-18,
-50,
-11,
-13,
9,
34,
52,
26,
21,
-23,
-21,
-29,
22,
-24,
-8,
26,
-73,
-10,
2,
30,
7,
-13,
-10,
-31,
27,
6,
-54,
36,
14,
-36,
14,
2,
8,
32,
-32,
-12,
-10,
52,
-54,
-15,
-38,
24,
-2,
-57,
4,
57,
8,
88,
-18,
-21,
-12,
-71,
16,
11,
21,
7,
4,
25,
40,
-40,
-45,
31,
-13,
-40,
33,
-48,
48,
4,
-52,
30,
-5,
46,
-5,
-4,
5,
35,
13,
13,
2,
5,
-34,
6,
33,
19,
10,
24,
4,
32,
-24,
14,
-17,
13,
-8,
19,
-16,
23,
-56,
-55,
-28,
-6,
-52,
11,
5,
5,
-30,
-21,
18,
15,
-14,
-2,
-21,
21,
-25,
-42,
-19,
26,
3,
-17,
27,
-6,
37,
44,
9,
-12,
29,
3,
-14,
24,
20,
-12,
-43,
-19,
52,
-17,
-30,
-7,
-11,
-4,
-56,
-12,
-8,
-12,
16,
-10,
47,
-22,
33,
2,
14,
-25,
-21,
-41,
8,
2,
18,
-5,
11,
-32,
-30,
10,
-17,
20,
13,
-18,
72,
-57,
4,
-12,
-32,
42,
13,
13,
-20,
30,
-4,
-18,
-1,
0,
21,
10,
-13,
-3,
41,
-2,
6,
-31,
10,
-12,
-27,
-35,
-65,
-22,
-35,
-14,
-17,
41,
-7,
47,
-20,
10,
1,
5,
-18,
-4,
9,
-9,
33,
0,
22,
46,
-45,
28,
-6,
12,
-3,
-41,
-2,
21,
-4,
-18,
53,
49,
46,
-19,
-45,
-64,
3,
21,
-56,
-25,
6,
20,
6,
-20,
4,
8,
-30,
-21,
33,
26,
-36,
-18,
-43,
35,
28,
-16,
-22,
-16,
-27,
-39,
33,
8,
27,
35,
-31,
-20,
31,
-24,
33,
-11,
-29,
11,
-26,
16,
19,
-2,
-32,
-6,
-20,
10,
36,
-2,
42,
21,
-64,
-13,
-75,
69,
23,
28,
4,
13,
-29,
27,
-28,
17,
10,
10,
35,
2,
-12,
49,
-15,
-20,
17,
-11,
33,
-45,
-3,
-25,
2,
16,
-42,
3,
-2,
-12,
-25,
34,
-19,
39,
37,
16,
11,
-33,
-26,
-7,
-28,
22,
3,
-1,
25,
-1,
-27,
-28,
-60,
-31,
-17,
13,
9,
-41,
44,
47,
-6,
8,
36,
-33,
-41,
5,
17,
17,
14,
-3,
56,
-32,
-1,
-27,
30,
12,
3,
-71,
-15,
19,
-6,
41,
-11,
-15,
61,
41,
-12,
-17,
-47,
-48,
-25,
30,
50,
34,
24,
13,
-15,
24,
-6,
19,
-11,
-51,
-16,
19,
49,
-16,
-34,
20,
29,
43,
-42,
-13,
-17,
-38,
-3,
-4,
-10,
-48,
-36,
-26,
-34,
3,
-37,
-28,
-1,
19,
-26,
4,
8,
-45,
47,
3,
18,
-9,
30,
54,
-6,
-10,
49,
-9,
-17,
-61,
-5,
-10,
-16,
44,
-53,
13,
-27,
5,
-19,
6,
0,
26,
-23,
26,
-5,
6,
-3,
-43,
11,
-19,
7,
-6,
27,
8,
-23,
-19,
-17,
-6,
19,
-27,
-12,
58,
-10,
-1,
13,
32,
-26,
-2,
70,
17,
2,
10,
0,
2,
25,
14,
5,
-28,
39,
-9,
-40,
23,
21,
44,
23,
-29,
16,
10,
2,
11,
31,
18,
-36,
-59,
-11,
-17,
-51,
20,
13,
58,
7,
-27,
-43,
-22,
-33,
32,
26,
-8,
-1,
2,
-10,
30,
14,
3,
47,
-24,
-46,
-9,
-20,
-48,
37,
-4,
2,
1,
26,
16,
45,
18,
20,
34,
11,
60,
38,
-9,
-3,
-9,
-5,
4,
18,
-8,
3,
-12,
-10,
21,
27,
5,
-13,
-16,
-19,
12,
37,
-29,
21,
2,
-21,
29,
15,
15,
-35,
15,
-37,
0,
-29,
-40,
35,
8,
2,
-8,
-13,
49,
19,
-10,
-35,
34,
25,
-10,
42,
-49,
-24,
23,
39,
-8,
5,
6,
26,
-3,
8,
-24,
-24,
39,
-9,
-36,
25,
-4,
-15,
32,
-21,
-4,
-8,
-15,
19,
13,
-7,
-11,
-13,
-31,
18,
47,
-36,
-28,
-31,
21,
-16,
-5,
-10,
29,
-54,
-1,
8,
36,
-8,
-63,
38,
-7,
-24,
-16,
-13,
28,
11,
13,
20,
50,
1,
-30,
-19,
-46,
-48,
-4,
0,
-27,
6,
28,
32,
34,
-38,
1,
0,
24,
-24,
1,
39,
7,
37,
-23,
0,
1,
-26,
53,
27,
-11,
-21,
20,
4,
21,
-8,
-15,
-17,
-23,
-42,
53,
-4,
8,
30,
2,
-21,
-24,
-26,
21,
20,
20,
17,
-3,
-55,
-27,
18,
-86,
-18,
33,
11,
13,
-6,
-2,
-14,
-10,
-25,
-17,
-28,
25,
1,
15,
-36,
32,
-10,
-23,
2,
-66,
-2,
25,
-45,
-37,
22,
1,
56,
4,
8,
-20,
-12,
5,
34,
43,
20,
-3,
27,
3,
15,
24,
71,
-24,
26,
-5,
22,
-57,
-18,
43,
13,
29,
-34,
33,
3,
44,
71,
-26,
-23,
23,
31,
1,
-23,
36,
-5,
8,
6,
-17,
44,
-29,
-10,
8,
-8,
-13,
-54,
-18,
-6,
37,
-31,
-14,
37,
-28,
-51,
-15,
-36,
8,
-32,
-8,
-24,
5,
8,
-31,
-47,
1,
-3,
-18,
19,
28,
4,
57,
35,
3,
-23,
-3,
5,
-54,
18,
-17,
-28,
2,
9,
-14,
12,
20,
-6,
-13,
10,
1,
0,
14,
-38,
38,
26,
49,
-6,
8,
-72,
-28,
3,
-2,
-37,
4,
-19,
-41,
59,
10,
13,
29,
-22,
-26,
46,
0,
-12,
-5,
24,
8,
23,
34,
-8,
-18,
-5,
-40,
-2,
15,
31,
24,
-4,
9,
-32,
-3,
17,
24,
39,
32,
27,
-9,
3,
-14,
-4,
-34,
-11,
2,
2,
42,
-15,
-41,
9,
6,
-16,
-2,
-56,
-69,
48,
28,
-66,
41,
-12,
18,
-10,
-10,
10,
-22,
-1,
36
] |
Person, J.
(after stating the facts). The controversy between the parties relates principally to the alleged rescission of the contract as to the undelivered culls. Such rescission, if it took place, grew out of a conversation over the telephone between Fred H. Yeomans, then vice president and general manager of the Yeomans-Diver Company, and Daniel E. Wells, vice president of the plaintiff company, and in charge of its Detroit business. The authority of these gentlemen to bind their respective companies to such rescission is not questioned, nor is the fact denied that they had the conversation referred to about the balance of the culls. It is also conceded that, following the conversation, Mr. Wells acted upon the assumption that the contract had been canceled, and sold the remaining culls to other parties. The defendants, however, contend that Mr. Wells had no right to give such construction to anything that Mr. Yeomans said, and that there was no evidence in the case from which the jury were authorized to find that Mr. Yeomans consented to, or intended, any rescission.
Testifying in the case, Mr. Yeomans says that his talk about canceling the contract as to the balance of the culls was merely conditional; that he was complaining to Mr. Wells about the width of this first shipment, and that—
“in my conversation with Mr. Wells he stated that if we did not like the lumber we could cancel our contract. I told Mr. Wells that lumber was not running wide width and we could not use that narrow stuff. He wanted to know if I wanted to cancel the contract. I told him that, if it all rim that narrow width, I certainly did.”
It seems to be conceded that these culls about which Mr. Yeomans was complaining were not a fair sample of the year’s cut, and that those remaining on complainant’s docks at Blind river averaged a greater width than those first brought down. Mr. Yeomans further says:
“I mean to state it this way: We would cancel if we had to take all five-inch; cancel, we never said we would cancel the contract, the lumber we were supposed to get; on the four-inch strips, yes, but not on that contract.”
Had the jury accepted this version of the conversation, they could not have found that it amounted to either a request or a consent that the contract be rescinded as to the balance of the culls.' It was conditioned upon the fact that those were as narrow as the culls- that had been brought down, and this was not true. The rescission of a contract as much requires the'meeting of minds as does the making of a contract. In a note to Bryant v. Isburgh, 74 Am. Dec. 657, it is said:
“All executory contracts may be rescinded by the parties to them if they continue interested until the agreement to rescind is made.” Johnson v. Reed, 9 Mass. 78 (6 Am. Dec. 36) ; Blood v. Enos, 12 Vt. 625 (36 Am. Dec. 363).
“It has been said that courts require as clear evidence of waiver of a contract by mutual assent as of the contract itself. Carolan v. Bratazon, 3 Jo. & Lat. 200; Dial v. Crane, 10 Tex. 444; Quincy v. Tilton, 5 Greenl. (Me.) 277. On the other hand, it is said that an agreement to rescind may be shown by such circumstances, or by such a course of conduct, as clearly evidences the intention of the parties that it shall so operate. Wheeden v. Fiske, 50 N. H. 125; Green v. Wells, 2 Cal. 584; Robinson v. Page, 3 Russ. 114; Murray v. Harway, 56 N. Y. 337.”
Mr. Wells, however, does not agree with Mr. Yeomans. as to what was said between them. He testifies:
“I think that Yeomans saw the narrow lumber coming first, and that he was discouraged on the width, and was afraid that the rest was going to be all the same size, so he called us up and said he wanted to cancel; the lumber was too narrow for his use. * * * As soon as Mr. Yeomans told me that he could not use any more of our lumber, I said: ‘All right, Fred; I will try to place it somewhere else. People have been wanting that lumber for some time, and I will see if they can use it and let you know.’ * * * He [Yeomans] said he could not use the lumber.”
If this rendering of the conversation is correct, there was a distinct request by Mr. Yeomans that his company be relieved of its obligation to take the balance of the culls; an offer, in other words, to rescind the contract as to such culls. And this offer was accepted by Mr. Wells, not in words at the time, but by an act, that of making another disposition of them in compliance with Mr. Yeomans’ request. Some light is thrown upon the probable nature of the conversation, and upon what both men understood its import to be, by their subsequent conduct, not only by that of Mr. Wells in making another sale of the lumber, but also by that of Mr. Yeomans. The latter, a few days after his conversation with Mr. Wells, called up Mr. Conely, the broker who had negotiated the contract between the parties, and Mr. Conely gives the talk which he then had with Mr. Yeomans, as follows:
“He called me up on the telephone and told me he couldn’t use that lumber; it was too narrow. I told him I didn’t think so. I had just come from the boat, and it was a good lot of lumber. There was a lot of short lumber on the Keith which made it look narrow —a lot of 1910 shorts. * * *
“Q. Did he say anything to you in regard to his canceling the balance of the contract? °
“A. I don’t know as he used the word ‘cancel,’ but he said he told Mr. Wells that he wouldn’t receive any more of the lumber.
“Q. What did you tell him?
“A. I told him that he had made a mistake. I had seen the culls at Georgian Bay, and they were a nice lot of mill culls.
“Q. And what other talk did you have with him?
“A. He told ,me to get hold of Dan and straighten the thing out.
“Q. Did you see Mr. Wells after that?
“A. No; X talked with him over the phone.
“Q. And what talk did you have with Mr. Wells over the phone? -
“A. I told him Mr. Yeomans didn’t want to cancel that order, and Mr. Wells told me that he had, optioned the lumber to Lowrie & Robinson, and that he was well ■satisfied to let Lowrie & Robinson have the lumber.”
Following this interview with Mr. Conely, and on the 21st day of. August, 1911, Mr. Yeomans, for his company, wrote Mr. Wells as follows:
“As per our telephone conversation, stating that we do not wish to cancel our contract with you for lumber this year, which was to be about 800 M ft. of 4/4, 500 M ft. of 5/4 and 300 M ft. of 6/4 and about 100 M ft. of 8/4, we trust you will reserve this lumber for us and be able to start delivery to us in about, three weeks.
“This order does not include 125 M ft. of 5/4, which we understand is now being loaded for us.”
At the same time Mr. Yeomans wrote Conely & Bailey, the brokers, that he had notified plaintiff that defendants did not wish to cancel the order for lumber. It is true that Mr. Yeomans does not admit in full the statements attributed to him by Mr. Conely, and he says that he wrote the letter to Mr. Wells “for fear they would make some excuse of the cancellation,” but the conversation and the letters had some bearing, on the question of Mr. Yeomans’ understanding of the import of his talk with Mr. Wells, and were for the consideration of the jury.
We think there was evidence justifying the trial court in submitting the question of rescission to the jury, and that their verdict should not be set aside as against the weight of the evidence.
In the course of the examination of Mr. Wells by counsel for the defendant the following took place:
“Q. Now, if Yeomans had canceled the contract, you would want your records at Blind river to show the facts, wouldn’t you?
“A. Well, Mr. Yeomans didn’t cancel—
“Q. Answer that / Yes’ or ‘No.’ Do you or do you not want your records to show the facts at your mills?”
Now, counsel for the defendants insist that we should accept this partial answer by Mr. Wells as a full and complete admission that the contract was not canceled. This we cannot do, as it is impossible to know what Mr. Wells’ completed answer .would have' been. It is hardly fair for counsel to interrupt &■ witness in the middle of a sentence and to then insist that the fragment of an answer be taken as a completed whole.
At the trial a . portion of the testimony was taken by a stenographer, who afterwards died without having furnished a transcript thereof. Before settling the bill of exceptions the notes of the testimony so taken were placed in the hands of Mr. Daniel, another court stenographer, who transcribed them, but with some help from the counsel for the plaintiff. Mr. Daniel makes an affidavit that he was able to read the: notes, and that he believes the transcript made by him' to be correct. This testimony was incorporated in the; bill of exceptions, and the circuit judge before whom the case was tried not only signed the bill, including such testimony, but certifies particularly that the transcript made from the notes of the deceased stenographer was true, complete, and correct. It is urged', by counsel for defendants that this transcript should not have been used, especially as counsel for plaintiff' assisted somewhat in its preparation, and that a new' trial should have been granted by the circuit judge because of the death of the stenographer who took the minutes. Counsel, however, do not point out nor suggest any mistake in the transcript, and the use of it was.not erroneous. The accuracy of a bill of exceptions is to be determined by the trial judge, and his certificate is ordinarily conclusive.
It being determined that the question of rescission was properly left with the jury, the other errors assigned become immaterial.
The judgment will be affirmed.
Stone, C. J., and Kuhn, Bird, Moore, Steere, and Brooke, JJ., concurred. Ostrander, J., did not sit. | [
56,
-11,
-29,
-4,
-16,
14,
6,
24,
19,
49,
8,
-21,
48,
17,
5,
-23,
17,
8,
-5,
11,
19,
-24,
61,
3,
-17,
-34,
-33,
-15,
-7,
42,
-60,
38,
-22,
-52,
-17,
-3,
-6,
29,
-22,
-9,
-34,
-14,
-39,
-48,
76,
-9,
36,
5,
43,
7,
41,
-17,
19,
-26,
42,
-20,
-9,
23,
-24,
-8,
-4,
-41,
8,
4,
28,
-36,
-46,
48,
28,
60,
-6,
12,
-28,
-5,
50,
-27,
16,
-20,
-3,
29,
17,
32,
46,
-1,
-22,
34,
-28,
-1,
18,
63,
3,
-47,
-29,
11,
-6,
-9,
24,
-16,
-38,
-34,
-9,
25,
18,
-6,
-22,
-20,
23,
12,
-16,
34,
-15,
26,
15,
3,
-12,
-33,
23,
-24,
-17,
13,
-2,
14,
15,
11,
-33,
-54,
10,
-14,
-19,
3,
5,
-5,
-14,
-14,
32,
9,
-4,
21,
-14,
25,
28,
42,
-40,
-53,
-21,
-2,
-9,
68,
11,
-24,
-21,
-6,
-7,
-40,
-13,
-3,
39,
-40,
51,
15,
1,
28,
-12,
-29,
-111,
10,
15,
5,
2,
31,
13,
0,
-11,
-6,
57,
5,
-27,
6,
3,
8,
13,
-25,
-21,
9,
-10,
-30,
10,
-11,
-16,
61,
34,
-8,
-9,
0,
-24,
16,
3,
31,
26,
51,
-13,
21,
-54,
7,
-43,
22,
-8,
5,
-1,
4,
-9,
32,
-88,
-62,
-49,
2,
-26,
-40,
14,
-60,
2,
-45,
20,
13,
-2,
-26,
38,
22,
14,
-54,
-17,
-11,
16,
-11,
-16,
-31,
58,
15,
-28,
23,
-14,
-3,
-58,
-41,
-16,
-8,
-65,
35,
33,
29,
-32,
-39,
28,
52,
-26,
5,
-19,
-13,
-76,
-28,
-9,
19,
-11,
-40,
28,
3,
-15,
-13,
-29,
4,
29,
9,
31,
-11,
-27,
-6,
-31,
0,
7,
-7,
-37,
-35,
-6,
-20,
-56,
-15,
-18,
-12,
-53,
5,
40,
45,
-16,
-32,
51,
41,
19,
14,
12,
-52,
-25,
-36,
33,
-40,
45,
51,
-26,
7,
-8,
-16,
-24,
-39,
-48,
30,
-1,
-11,
-2,
-4,
-24,
-27,
3,
-17,
24,
-14,
-40,
-8,
35,
55,
33,
34,
36,
2,
-17,
-26,
27,
-22,
4,
-49,
-28,
-20,
36,
47,
-50,
-26,
-32,
-45,
18,
-29,
11,
-30,
10,
-2,
-33,
14,
14,
20,
22,
35,
3,
7,
38,
7,
-14,
45,
17,
-11,
23,
-16,
13,
30,
2,
-10,
-23,
-10,
17,
12,
-24,
-38,
-43,
-13,
8,
56,
32,
3,
38,
9,
-7,
-6,
-23,
3,
-35,
-55,
-57,
63,
-34,
27,
-34,
-1,
-26,
0,
21,
-3,
-34,
-41,
11,
54,
2,
-50,
3,
-50,
5,
-24,
41,
1,
-27,
-39,
14,
-14,
60,
-5,
35,
-28,
16,
-11,
51,
-47,
44,
-15,
-5,
16,
-33,
-6,
4,
-17,
-45,
24,
-47,
-1,
-42,
2,
-62,
14,
-13,
-22,
-7,
14,
25,
74,
-8,
-20,
19,
27,
-47,
-18,
40,
20,
-13,
-59,
97,
35,
-29,
-30,
13,
-80,
27,
45,
72,
-34,
17,
56,
18,
36,
44,
33,
-27,
-17,
16,
11,
9,
39,
16,
34,
-31,
-6,
-60,
-18,
-52,
-28,
19,
-2,
45,
61,
1,
-59,
-21,
6,
30,
13,
22,
21,
2,
-44,
4,
8,
31,
-43,
-4,
-1,
7,
67,
13,
-28,
64,
0,
-41,
-11,
-14,
2,
-11,
16,
7,
-38,
-17,
-21,
-34,
23,
8,
-51,
38,
-38,
-22,
25,
-40,
-9,
40,
-26,
12,
-8,
-2,
-24,
0,
10,
41,
-15,
-16,
4,
5,
4,
21,
-26,
-16,
-27,
21,
-8,
1,
18,
2,
-32,
-9,
0,
-17,
22,
-10,
-21,
21,
-26,
38,
-11,
36,
34,
13,
-31,
11,
70,
-23,
3,
13,
15,
28,
37,
-53,
-66,
9,
0,
-14,
-9,
54,
13,
-43,
12,
-6,
-40,
-22,
-41,
17,
0,
-7,
0,
11,
35,
14,
6,
-5,
-12,
-15,
23,
-32,
15,
-43,
73,
26,
17,
17,
-4,
2,
61,
7,
-60,
34,
40,
61,
0,
-55,
17,
-21,
67,
15,
0,
22,
24,
-45,
-14,
11,
21,
4,
-23,
28,
21,
-18,
36,
10,
-39,
4,
-35,
-17,
-35,
-21,
68,
-38,
21,
-31,
28,
40,
31,
-13,
27,
21,
-3,
6,
-20,
56,
24,
-1,
-21,
-38,
-3,
8,
36,
-46,
10,
22,
-13,
55,
-6,
25,
-17,
9,
33,
-26,
65,
22,
-9,
-10,
-14,
18,
10,
58,
-5,
-20,
14,
-27,
-19,
25,
10,
17,
18,
10,
-29,
-31,
-22,
-1,
39,
-45,
33,
-20,
13,
-25,
-15,
-16,
44,
9,
-33,
-9,
44,
27,
28,
-12,
32,
-34,
-50,
16,
0,
65,
-9,
-9,
27,
-15,
4,
-44,
28,
-4,
29,
56,
-26,
13,
13,
-25,
2,
-4,
-79,
0,
-22,
-37,
-11,
-52,
2,
30,
8,
6,
-21,
6,
2,
-24,
-3,
-22,
-42,
-26,
2,
-46,
-29,
62,
-51,
1,
-34,
-9,
7,
-31,
-26,
53,
-68,
-43,
-37,
-6,
50,
47,
32,
-18,
26,
-9,
36,
-56,
-23,
-49,
-1,
14,
-51,
-5,
-14,
6,
23,
7,
-4,
-8,
63,
-16,
41,
0,
14,
-20,
-20,
23,
10,
-19,
49,
0,
-23,
-23,
-33,
30,
8,
-39,
-8,
3,
-38,
41,
-7,
-17,
-23,
7,
31,
-11,
52,
-11,
-42,
16,
-7,
-12,
-10,
-9,
-10,
44,
-45,
-60,
55,
46,
-24,
10,
44,
22,
-15,
-14,
-52,
25,
-10,
42,
-12,
-37,
-11,
-57,
-29,
18,
-16,
27,
38,
-11,
-7,
-30,
-1,
51,
8,
-8,
-5,
-4,
-34,
3,
-11,
7,
-6,
12,
-19,
9,
-16,
15,
-29,
1,
15,
-50,
17,
1,
10,
2,
-41,
33,
25,
30,
6,
43,
-30,
14,
51,
4,
-17,
18,
-2,
6,
5,
57,
-28,
28,
24,
23,
-38,
36,
-2,
-12,
-68,
-6,
17,
8,
44,
27,
-24,
0,
-34,
13,
17,
29,
32,
-19,
-9,
15,
17,
13,
8,
11,
35,
-17,
0,
2,
37,
-12,
-30,
14,
-49,
-26,
-24,
-38,
-29,
-89,
-6,
-15,
-24,
-3,
-4,
3,
-19,
-1,
15,
26,
42,
60,
18,
10,
27,
0,
-4,
-47,
28,
-37,
-42,
22,
-21,
11,
2,
3,
37,
16,
25,
-11,
-39,
63,
-8,
-17,
-52,
15,
-40,
-10,
6,
20,
-5,
36,
28,
-43,
55,
48,
-39,
-33,
-8,
-25,
10,
-33,
50,
82,
30,
-40,
-23,
-44,
0,
-32,
-10,
26,
-11,
-8,
17,
11,
9,
18,
59,
41,
-83,
-44,
6,
-32,
56,
5,
10,
-5,
8,
-9,
-33,
34,
-39,
-9,
30
] |
Steere, J.
This is an application for mandamus to compel respondent to vacate an order previously made by him as judge of the superior court of Grand Rapids, requiring relator to deposit with the clerk of the court certain records and papers claimed to be material evidence in a criminal case there pending against James S. Hawkins, city treasurer, and to refrain from further acting as judge or presiding in said case because disqualified under the judicature act of 1915 (Pub. Acts 1915, No. 314, 3 Comp. Laws 1915, § 12254) by reason of relationship. Hawkins was bound over to respondent’s court for trial on January 15, 1916, under a complaint charging him with embezzling and misappropriating $243.45 of money belonging to the city of Grand Rapids, stated in six different counts alleging such offense as committed under dates from June 8, 1914, to June 8, 1915. On January 25, 1916, prior to the filing of any information in said cause, application was made by Hawkins’ counsel, supported by his affidavit, for an order, requiring relator and the firm of Patterson & Patterson, which had been employed by the city, to audit the books and accounts of the city treasurer’s office—
“to immediately deliver to the clerk of this court all books, papers, memoranda, and data which have been removed by them from the office of the city treasurer of the city of Grand Rapids, or from the office of the city comptroller of the city of Grand Rapids, to remain in the custody of the clerk of this court until the further order of the court, and that the respondent, his attorneys and agents, may have free access for the examination of the same,' and that Edward N. Barnard, prosecuting attorney, George M. Patterson, and the firm of Patterson & Patterson may be directed and required to deliver to said respondent his personal bank checks, check stub books and bank passbooks which are or have been in the possession of any or either of them.”
Relator filed his affidavit in opposition, stating, in substance, that all such documentary evidence came into his possession in the course of an investigation of alleged criminal practices in the city treasurer’s office, and was held for use in pending criminal prosecutions against said Hawkins and his deputy. After a hearing held on January 31, 1916, the court refused to direct relator to deliver to Hawkins his personal bank checks, stub books, etc., but ordered him to produce and deliver to the clerk of the court the papers referred to in said motion, which came from the city treasurer’s office, to remain for a period of 30 days, and until the further order of the court, open to inspection, both by the prosecution and defense in said case, and that relator return to the office of the city controller of the city of Grand Rapids all books, papers, etc., in his possession or under his custody and control, which had been taken or removed from that office. The record further discloses that two other criminal cases were pending in the superior court of Grand Rapids, charging Hawkins and his deputy, William H. Olmstead, with misappropriation of funds belonging to the city treasury, one against Olmstead and one against Hawkins and Olmstead jointly, in both of which respondents were represented by the firm of Dunham & Dunham, attorneys, consisting of respondent’s son and nephew. Claiming that the three cases ihvolved substantially the same line of inquiry and were so correlated that disqualification in the other two cases was in fact and legal effect disqualification in the case under consideration, relator, in a subsequent motion to vacate said order, interposed the objection and urged as a reason that respondent was disqualified by consanguinity from acting in any of said cases. This objection was not sustained and relator’s motion was overruled.
There are but two legal questions involved in this case: First, did the court have power to make an order requiring public records and- private papers taken from public offices, including that of the city treasurer, against whom a criminal prosecution was pending, and which were held by the prosecution under claim that they were incriminating documentary evidence, to be turned over to the clerk of the court, where they might be inspected and examined by all parties in interest, and, if so, was said order an abuse of discretion under the circumstances shown? Second, was respondent disqualified from sitting in this case by reason of his son and nephew being attorneys of record in other cases of like nature pending before respondent, charging Hawkins and his deputy with like offenses, involving a similar line of inquiry and examination of the same books and rec'ords?
For the purposes of this case that portion of respondent’s return to the order to show cause herein which is material and responsive must be taken as true, as also any averments of fact in relator’s petition which are not denied in the return. From re spondent’s return it appears that the auditing firm of Patterson & Patterson, while employed by the city to make an audit of the books of the city treasurer, upon which they were engaged for some months, were permitted by Hawkins, for the more convenient and efficient conduct of their work, to remove certain books, papers and memoranda from the treasurer’s office to their office in the Grand Rapids National City Bank building where they were carrying on the work, but it is stated:
“Said city treasurer and said auditors are not in accord as to whether or not the auditors had permission to take from the city treasurer’s office all the papers, books, documents, and data that were taken by said auditors.”
The auditors did not return these book and papers, but subsequently turned them over to relator, and “some 21/2 or 3 months” after they were removed from the treasurer’s office complaint whs made against Hawkins by an employee of the prosecutor, charging him with embezzling $243.45 from the city treasury. It was shown that said audit was begun shortly after August 25, 1915; that no report had been made by the auditors to the common council of the city, and that Hawkins’ demand of the auditors and relator for return of all said books and papers had been refused. Under the circumstances shown respondent states that it appeared to him from the nature of the charge against Hawkins it was proper that he be given an opportunity to make investigation in the various books and records belonging to his office concerning the item he is charged with embezzling, and trace the entries, if able, in relation to it. Relator’s contention is to the effect that the defendant in a criminal case is not entitled to the benefits of a bill of discovery; that communications made to the prosecuting attorney in a criminal case are privileged, and the prosecution can not be compelled to disclose in advance what evidence it has against an accused.
Conceding this all to be true, we fail to discover its application to the case at hand. The order complained of does not require relator to disclose any confidential communications, the theory of the prosecution, the kind and character of evidence he has against the accused, nor any particular item of incriminating evidence he may have discovered in these books and papers or elsewhere. When the records and papers were taken temporarily from the treasurer’s office, either with or without his consent, for more convenient use by the auditors in their own office, the city treasurer was yet the legal custodian and entitled to the possession and use of them, while relator was not. In taking possession of them from the auditors he is in no different position than had he, without process, taken them from the treasurer’s office by unlawful search and seizure! He, however, has taken and holds possession of them, his only claim of right to retain and sequester them being for use as evidence in a criminal case pending in respondent’s court, thus planting his claim upon their relation to that case and bringing them under the control of the court, which has the inherent right to take cognizance of and pass upon questions involving an alleged unreasonable and unlawful exercise of authority in a case pending before it and under its general control. Authority is not wanting for a court in somewhat analogous cases to order papers wrongfully seized turned over to the accused. Weeks v. United States, 232 U. S. 383 (34 Sup. Ct. 341, L. R. A. 1915B, 834, Am. & Eng. Ann. Cas. 1915C, 1177). -But in this case the court went no farther than to order these public records, and bank checks, stub books, passbooks, etc., of the accused claimed by him to relate to the conduct of his office, into' the custody of the court to be cared for by its clerk subject to inspection by interested parties. The right to examine public records for all reasonable purposes exists by statute, and might at proper times and under proper restrictions be exercised by any citizen, whether accused of crime or not, if these records were in the office of the city treasurer of Grand Rapids, where they ordinarily belonged. It was within the discretion of the court to make the order complained of, and under the circumstances shown we do not find that there was any abuse of discretion in making it.
Relator’s contention that respondent is disqualified from acting officially in the case of People v. Hawkins, in which the interlocutory order complained of was made, is based upon that portion of section 7, chap. 4, of the judicature act of 1915 (3 Comp. Laws 1915, § 12254) which provides as follows:
“Nor shall any judge sit as a court in any cause in which he is related within the third degree of consanguinity to either of the attorneys or counselors of either party to said cause.”'
It is undisputed that no attorney of record, or who represented Hawkins in the case, is in any degree related to respondent, but it is conceded that the son and nephew of respondent are attorneys for Olmstead in the two cases of People v. Olmstead and People v. Hawkins and Olmstead, in the trial of which it is expected that they, or one of them, will participate as counsel for Olmstead. Manifestly, the law as it reads does not disqualify respondent from making an interlocutory order in People v. Hawkins, whose attorneys are in no way related to him. Relator contends, however, that this provision should be given a liberal construction to accomplish its evident intent; that all three cases involve embezzlement by the defendants from the city treasury, with which they were officially connected; asserts that the books and documents which the order permits them to inspect are material to a greater or less extent in all the cases, and therefore the order inures to the direct benefit of interests represented by respondent’s son and nephew as well as those of Hawkins. As to this respondent returns:
“That the proof that the people must produce against the said James S. Hawkins in the case of the People v. James S. Hawkins is for a different sum of money taken at a different date, and that the same proof is not the proof that would be required by the people to secure a conviction against the said Willard H. Olmstead in the case of the People v. Willard H. Olmstead, and in the case of the People v. James S. Hawkins and Willard H. Olmstead, charged jointly.”.
From his return and the material facts established by this record we cannot find that the respondent was disqualified by statute from making the interlocutory order complained of, or that the same is void for want of jurisdiction. Neither can we assume to divine what facts may be developed in the progress of the case and prejudge, as relator petitions, the legality and propriety of respondent presiding upon the trial.
In view, however, of the adverse reflections and arguments appearing in respondent’s return upon the wisdom, propriety, and constitutionality of this law and strictures upon those who invoke it, we are constrained to state we do not find said section 7 of the judicature act out of harmony with the generally recognized public policy which demands of the judiciary strict impartiality in administrating the affairs of our courts, often declared both in statute and bench law, and well stated in Yazoo, etc., R. Co. v. Kirk, 102 Miss. 41 (58 South; 710, 834, 42 L. R. A. [N. S.] 1172, Am. & Eng. Ann. Cas. 1914C, 968), as follows:
“Every litigant is entitled to nothing less than the cold neutrality of an impartial judge, who must possess the disinterestedness of a total stranger to the interests of the parties involved in the litigation, whether that interest is revealed by an inspection of the record or developed by evidence aliunde the record. The real parties in interest furnish the reason for the judge to recuse himself when it becomes known that they are related to the judge, although they may not be parties eo nomine.”
Upon the record before us the writ of mandamus as prayed for must be denied.
Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred. | [
27,
-38,
51,
79,
-4,
36,
-6,
30,
-15,
21,
-15,
-60,
-6,
-42,
-6,
-16,
-30,
16,
28,
-68,
-13,
-10,
-53,
-44,
16,
5,
-8,
-3,
-1,
-47,
-13,
4,
-12,
22,
16,
-33,
-8,
-18,
36,
-4,
15,
1,
0,
12,
-13,
-52,
-28,
14,
-20,
-41,
-5,
25,
-24,
56,
-29,
-4,
-18,
-25,
37,
-14,
27,
16,
12,
18,
-47,
-17,
-26,
17,
-7,
-15,
-7,
-33,
32,
1,
19,
39,
-4,
-67,
-2,
51,
-14,
5,
-43,
61,
-27,
22,
-17,
-27,
13,
-58,
2,
4,
-34,
38,
24,
-48,
-55,
-1,
23,
34,
-23,
-36,
-4,
38,
28,
-30,
11,
-5,
32,
-10,
-26,
-12,
63,
-16,
9,
-78,
-20,
-5,
47,
-46,
-19,
-22,
-7,
-18,
32,
-3,
-31,
-55,
15,
29,
-19,
31,
-24,
-54,
25,
16,
12,
-10,
-56,
-24,
-5,
-15,
34,
66,
-51,
-3,
34,
4,
15,
82,
-38,
-10,
53,
43,
5,
12,
-4,
-26,
6,
33,
1,
18,
7,
-5,
-13,
23,
-20,
54,
-11,
10,
-1,
61,
-35,
37,
26,
-23,
-21,
5,
32,
-4,
56,
28,
13,
-8,
21,
0,
26,
6,
28,
15,
-11,
-49,
15,
-5,
4,
36,
5,
-3,
-26,
-28,
43,
11,
6,
7,
-35,
-20,
-4,
-34,
-54,
11,
-13,
-33,
0,
-5,
-9,
-5,
-19,
9,
8,
-19,
-48,
36,
5,
48,
37,
48,
-3,
0,
-25,
29,
-18,
4,
9,
-27,
-11,
18,
29,
51,
14,
-11,
-45,
30,
24,
6,
21,
-30,
-22,
-23,
13,
1,
-45,
-10,
3,
-4,
-42,
3,
13,
-19,
-2,
17,
72,
-2,
5,
24,
-19,
-32,
-16,
35,
-4,
-22,
-2,
9,
-6,
-11,
-1,
-33,
0,
65,
-3,
-34,
19,
-79,
-60,
-24,
5,
-28,
-1,
-26,
-29,
-22,
-37,
17,
14,
40,
28,
4,
-12,
0,
33,
4,
-13,
-27,
5,
-9,
-15,
2,
-25,
-47,
-29,
-29,
61,
-32,
-19,
22,
28,
-24,
34,
47,
13,
-7,
24,
53,
-31,
15,
-42,
-8,
20,
5,
53,
0,
10,
-31,
-37,
-68,
-29,
3,
47,
49,
73,
-24,
9,
-28,
-33,
-17,
-27,
12,
7,
43,
-30,
-10,
-12,
11,
6,
69,
-41,
-1,
-13,
2,
2,
20,
1,
37,
-10,
16,
50,
18,
-39,
-38,
12,
-12,
-20,
-65,
-4,
-33,
-1,
-10,
-51,
-36,
-15,
46,
-26,
-43,
-9,
-3,
15,
-30,
10,
23,
-21,
12,
-13,
42,
-7,
-38,
3,
22,
-30,
22,
-20,
-2,
-29,
38,
-14,
34,
-22,
-16,
-27,
-26,
42,
-7,
58,
4,
0,
34,
19,
-47,
-20,
16,
12,
-18,
8,
24,
-34,
8,
53,
13,
6,
-24,
52,
9,
-12,
0,
51,
-6,
9,
29,
-10,
-22,
12,
-18,
-9,
-36,
4,
4,
13,
-71,
-22,
-29,
9,
46,
8,
24,
1,
27,
-29,
-7,
55,
19,
-9,
-59,
36,
-28,
-14,
30,
12,
34,
3,
-1,
0,
20,
-43,
-5,
-54,
-18,
-19,
-3,
44,
18,
-14,
-28,
-5,
54,
-21,
21,
31,
35,
-9,
-50,
-32,
46,
0,
-3,
-32,
77,
25,
40,
-74,
4,
-18,
17,
-17,
23,
-15,
60,
45,
-11,
2,
17,
0,
77,
-17,
17,
-7,
36,
4,
63,
5,
-25,
-52,
-27,
66,
64,
-8,
8,
3,
48,
15,
17,
4,
32,
13,
12,
6,
-36,
0,
0,
-43,
32,
-1,
-27,
-7,
-9,
2,
32,
-33,
-3,
-93,
35,
0,
-54,
10,
8,
23,
-11,
-47,
-20,
28,
11,
-13,
24,
17,
0,
16,
-29,
-37,
-2,
0,
-23,
-16,
5,
30,
-16,
-12,
4,
20,
21,
-28,
-20,
6,
24,
10,
17,
-1,
17,
52,
6,
14,
19,
12,
19,
-17,
-3,
-32,
2,
-19,
-18,
-14,
50,
3,
4,
21,
34,
-11,
22,
-28,
-43,
8,
0,
-11,
-42,
3,
-32,
-67,
48,
-61,
25,
3,
-46,
-27,
26,
-2,
-8,
-10,
30,
-10,
-62,
19,
-12,
23,
0,
-37,
22,
11,
27,
16,
16,
-61,
0,
-1,
-17,
-28,
73,
38,
-68,
-17,
25,
-4,
15,
-9,
33,
-11,
55,
7,
20,
1,
-45,
30,
57,
26,
-1,
25,
-33,
-87,
28,
18,
19,
22,
29,
36,
-5,
26,
-61,
4,
1,
20,
-38,
-41,
0,
28,
-34,
-5,
54,
-25,
27,
29,
-14,
26,
7,
-40,
3,
26,
53,
-59,
44,
12,
10,
13,
-8,
13,
2,
-11,
-37,
-5,
0,
-47,
-10,
-10,
-7,
11,
-9,
-29,
20,
-18,
26,
-3,
-45,
16,
2,
-45,
-36,
-44,
15,
-4,
-20,
0,
18,
4,
19,
-37,
-46,
8,
-22,
-2,
-49,
-3,
1,
-14,
14,
-40,
30,
15,
-31,
22,
-17,
-32,
19,
18,
20,
-60,
-1,
71,
51,
13,
14,
-17,
37,
12,
-28,
-17,
7,
14,
-27,
43,
-19,
-77,
0,
31,
22,
4,
-32,
-3,
-22,
-8,
-30,
-34,
43,
-43,
-44,
46,
-35,
50,
-14,
-57,
9,
64,
-30,
-13,
35,
-18,
19,
8,
-50,
-6,
-21,
36,
42,
13,
-49,
-21,
7,
29,
7,
-1,
0,
2,
28,
19,
18,
-34,
18,
-22,
42,
-9,
-53,
-8,
-20,
-1,
-21,
-21,
-41,
25,
26,
-9,
-8,
-38,
7,
-5,
6,
-22,
61,
-8,
-11,
29,
-8,
-17,
-44,
32,
-41,
35,
0,
1,
-20,
-26,
7,
-22,
-11,
15,
52,
-16,
0,
25,
20,
-43,
-8,
5,
6,
16,
2,
-38,
-10,
9,
27,
-20,
2,
-25,
39,
-72,
-47,
48,
-59,
10,
-29,
-16,
22,
-4,
19,
76,
1,
-3,
1,
-67,
-22,
9,
-44,
-58,
61,
-31,
-37,
23,
43,
-34,
1,
7,
4,
26,
-13,
11,
-78,
12,
-8,
-7,
10,
20,
-26,
-27,
14,
-11,
-7,
32,
52,
0,
6,
-35,
-31,
-35,
-29,
19,
17,
79,
4,
21,
28,
-24,
79,
0,
-18,
30,
19,
-11,
63,
25,
0,
6,
-23,
13,
-21,
-4,
1,
35,
16,
-1,
-65,
-22,
-4,
23,
21,
-18,
-5,
11,
35,
-66,
-22,
25,
39,
16,
52,
7,
-8,
-20,
-1,
-18,
-16,
14,
-16,
-17,
7,
-16,
-36,
26,
14,
-53,
-33,
-43,
-4,
-50,
-10,
48,
0,
29,
-30,
51,
8,
10,
-10,
-11,
14,
-1,
38,
-4,
43,
39,
3,
-24,
-10,
10,
11,
-9,
-1,
16,
26,
15,
-8,
-42,
16,
39,
-15,
4,
12,
-37,
-14,
32,
14,
4,
19,
15,
21,
32,
0,
-4,
-70,
-36,
7,
-90,
25
] |
O’ Hara, J.
Defendant was charged with armed robbery. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). In the presence of counsel, he pled guilty to the included offense of assault with intent to rob while being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284).
On appeal, defendant refers to the sentencing transcript in which the following colloquy appears:
“The Court: Mr. Prehn, do you have anything to say before I impose sentence?
“Defendant Prehn: Yes, your Honor, I know this is a serious crime but I was drinking at the time and I don’t think circumstances show that I meant any malice in it. * * * I told the guy where I lived, my name, and everything else.”
Defendant contends that the trial court erred in failing to set aside defendant’s plea of guilty sua sponte on the ground that the above response repudiated the necessary element of criminal intent. In effect, defendant, having successfully negotiated a plea to the included offense of assault with intent to rob while being armed, now seeks to circumvent his plea which the record reveals was freely, knowingly and understandingly made.
The trial court, upon inquiry of defendant, properly ascertained a factual basis for the plea. People v. Bartlett (1969), 17 Mich App 205; People v. Barrows (1959), 358 Mich 267. There was no error.
Equally without merit is defendant’s allegation, in direct disregard of the record, that he was not properly informed of the possible minimum and maximum sentences for the offense charged.
Affirmed.
All concurred. | [
27,
42,
20,
18,
-47,
-38,
6,
-8,
-21,
30,
51,
-7,
-21,
-12,
50,
9,
-1,
14,
-9,
-21,
13,
-65,
-33,
44,
-30,
-31,
47,
40,
19,
22,
51,
48,
13,
-34,
34,
-49,
58,
-16,
28,
15,
15,
38,
10,
-10,
-35,
-20,
-29,
-52,
35,
-21,
35,
-34,
-4,
13,
-3,
-2,
-4,
7,
8,
-14,
-1,
20,
-63,
-16,
-16,
-25,
30,
24,
-50,
-32,
-18,
27,
11,
-16,
-12,
-32,
3,
35,
29,
0,
-11,
15,
51,
16,
16,
-4,
8,
-21,
-16,
-52,
15,
57,
-15,
2,
36,
3,
-21,
14,
12,
-12,
-40,
-27,
-18,
-18,
-13,
26,
-41,
-40,
-2,
52,
29,
8,
30,
-34,
-21,
-29,
-41,
-12,
3,
-2,
-10,
16,
39,
39,
35,
-42,
-40,
7,
9,
-5,
25,
49,
27,
21,
14,
19,
4,
46,
29,
27,
-5,
32,
41,
-34,
38,
30,
0,
2,
36,
20,
-64,
7,
-42,
-3,
-18,
28,
-14,
-8,
-57,
-22,
19,
-12,
-8,
-15,
14,
-12,
-34,
-15,
-25,
-57,
1,
-45,
40,
16,
20,
-36,
15,
29,
-4,
0,
0,
-1,
-7,
15,
5,
-7,
-25,
-5,
-25,
-32,
9,
4,
-5,
10,
62,
40,
0,
17,
2,
1,
-20,
-41,
2,
15,
0,
-37,
-15,
-8,
-15,
-14,
9,
-2,
-36,
-16,
-31,
-30,
10,
15,
-14,
19,
-99,
-16,
-7,
-33,
-11,
-51,
-13,
-22,
-53,
21,
28,
-37,
-26,
9,
-19,
-6,
73,
-28,
82,
21,
7,
-23,
1,
-26,
30,
-12,
10,
12,
19,
-13,
35,
-21,
18,
3,
-65,
-29,
20,
-12,
-38,
13,
-41,
34,
-11,
36,
-51,
29,
-26,
-23,
-59,
-17,
33,
-61,
32,
40,
17,
1,
-34,
18,
-23,
28,
59,
61,
5,
25,
6,
-15,
-17,
52,
27,
-2,
50,
-25,
-30,
0,
55,
-7,
-13,
-6,
-54,
19,
42,
7,
12,
-45,
14,
-24,
73,
-46,
-47,
-4,
7,
5,
-3,
26,
24,
-5,
26,
34,
17,
-37,
-53,
-54,
-3,
-15,
0,
-42,
17,
-7,
-15,
-35,
-24,
-1,
2,
39,
-19,
18,
-10,
8,
43,
37,
3,
9,
41,
-30,
25,
95,
-13,
17,
-29,
-57,
-13,
10,
-2,
-20,
13,
-74,
-23,
-9,
35,
-54,
30,
-6,
-25,
-16,
54,
11,
-15,
-17,
1,
39,
-5,
-29,
-30,
1,
-57,
0,
59,
-30,
-43,
11,
-14,
41,
33,
-2,
20,
-25,
-18,
-34,
0,
28,
-28,
-11,
29,
-75,
15,
-64,
-14,
19,
54,
-40,
16,
-25,
95,
-8,
-4,
-38,
-13,
29,
10,
6,
-13,
14,
62,
93,
-25,
7,
-11,
-19,
20,
-13,
29,
-17,
25,
3,
6,
-36,
-27,
-8,
12,
-27,
52,
10,
8,
-29,
-6,
22,
-20,
-8,
31,
-31,
-22,
-10,
3,
22,
35,
-8,
-65,
-58,
21,
-68,
54,
-1,
-12,
-19,
-63,
36,
47,
22,
21,
-48,
22,
-19,
-28,
-25,
41,
-65,
-69,
-67,
63,
-13,
16,
0,
22,
23,
-8,
30,
47,
41,
-1,
-6,
-12,
13,
16,
-46,
-9,
-82,
-12,
-62,
11,
-25,
36,
3,
-4,
10,
26,
20,
-38,
5,
0,
34,
-28,
-1,
-28,
2,
37,
-1,
41,
-38,
53,
43,
-40,
51,
-15,
8,
-16,
-44,
-9,
-29,
0,
37,
22,
-38,
-7,
-32,
0,
4,
-45,
-18,
-71,
23,
60,
-42,
-6,
-86,
20,
-2,
20,
-9,
0,
-7,
18,
-5,
-2,
4,
-17,
17,
1,
-6,
45,
10,
-19,
-3,
42,
2,
-25,
11,
-40,
-30,
-15,
-15,
-11,
9,
50,
29,
-41,
24,
-57,
8,
5,
-5,
-21,
67,
0,
-4,
-15,
11,
18,
7,
21,
34,
32,
49,
-16,
25,
-9,
2,
36,
-10,
-22,
-37,
-19,
49,
8,
15,
0,
-1,
-32,
-22,
9,
28,
44,
-20,
-15,
27,
49,
4,
-37,
2,
11,
-6,
53,
11,
-5,
-3,
-31,
16,
11,
-37,
-42,
42,
8,
-24,
6,
-10,
5,
-43,
-11,
-37,
-6,
-36,
-26,
-14,
6,
-47,
-4,
14,
-14,
38,
-25,
-8,
12,
61,
-9,
-7,
45,
29,
-7,
52,
7,
-24,
-25,
3,
-3,
-47,
29,
-41,
-39,
17,
24,
0,
0,
37,
-52,
1,
31,
59,
26,
-49,
46,
22,
2,
-30,
-16,
-2,
46,
13,
-15,
30,
14,
-14,
-46,
-37,
-13,
-36,
6,
10,
-13,
-4,
15,
50,
-9,
9,
20,
10,
19,
-6,
53,
35,
-47,
-8,
3,
-26,
29,
-31,
7,
20,
3,
-49,
30,
14,
-30,
17,
-25,
5,
7,
-33,
-37,
-6,
-54,
42,
-10,
-18,
25,
38,
17,
16,
-3,
-8,
27,
10,
16,
1,
43,
11,
35,
30,
-41,
-21,
-9,
41,
-36,
11,
-24,
-44,
-31,
-13,
12,
-27,
30,
2,
23,
-4,
49,
17,
-31,
39,
7,
-6,
-33,
-16,
-57,
38,
-40,
-24,
-42,
8,
10,
-16,
18,
8,
-42,
-45,
6,
13,
-46,
13,
-16,
2,
27,
37,
14,
35,
-52,
0,
-12,
25,
-29,
-28,
-39,
-14,
-16,
48,
-29,
47,
-6,
19,
24,
25,
-2,
-10,
-8,
-14,
53,
6,
-18,
-19,
-16,
34,
-5,
9,
32,
-13,
-30,
8,
-35,
10,
13,
-26,
-7,
-25,
15,
22,
-3,
-38,
-8,
26,
6,
-33,
-4,
-28,
16,
10,
26,
39,
-10,
-28,
17,
30,
-32,
8,
28,
-4,
-7,
31,
17,
-5,
-11,
-24,
33,
18,
35,
0,
3,
-15,
-18,
12,
6,
67,
-20,
-3,
-8,
-2,
-18,
-27,
-14,
36,
-26,
-11,
19,
-17,
17,
7,
33,
26,
6,
39,
-77,
-7,
-20,
0,
15,
-7,
32,
-14,
-2,
-43,
-37,
-45,
-56,
24,
20,
70,
-12,
20,
-23,
-21,
-25,
12,
-12,
-43,
75,
14,
-27,
1,
49,
13,
13,
30,
-35,
41,
-20,
-4,
44,
17,
-7,
36,
-41,
-16,
22,
-19,
-20,
38,
40,
20,
4,
-29,
18,
16,
-43,
-34,
-17,
11,
25,
-61,
-18,
33,
25,
-44,
6,
54,
-59,
-8,
-53,
32,
17,
7,
6,
-15,
-8,
2,
-29,
9,
-19,
41,
-13,
26,
25,
18,
-28,
-10,
-41,
33,
-51,
-9,
54,
22,
10,
6,
-12,
-32,
-8,
-46,
-4,
7,
21,
6,
0,
-34,
-46,
10,
1,
-17,
-21,
13,
19,
15,
18,
38,
-16,
-1,
-34,
-11,
0,
36,
0,
24,
22,
-9,
1,
-10,
10,
29,
-6,
5,
-23,
1,
4,
39,
-36,
-15,
14,
12,
5,
-44,
-14,
7,
-11,
-13,
-3,
16,
-46,
47,
-55,
2
] |
Quinn, P. J.
Defendant association is the certified collective bargaining representative for the teachers employed by defendant school district. Plaintiffs are some of the teachers employed by the district hnt they are not members of the association. September 4,1968, the employer and the association executed a collective bargaining agreement for the 1968-1969 and 1969-1970 school years, which had been ratified by a majority of the school hoard and by a majority of the members of the association attending the ratification meeting. Article 2, § A of that contract reads:
“All teachers as a condition of continued employment shall either:
“1. Sign and deliver to the board an assignment authorizing deduction of membership dues and assessments of the association (including the National and Michigan Education Associations) and such authorization shall continue in effect from year to year unless revoked in writing between June 1 and September 1 of a given year. Such sums shall he deducted during the eight (8) consecutive pay periods commencing the 1st pay of October from the salary of all teachers authorizing deductions and remitted within thirty (30) days to the association. Teachers joining the association at the beginning of the second semester and signing and delivering to the board an assignment authorizing deduction of said membership dues, may have dues for that semester deducted from the six (6) consecutive pay periods commencing the 1st pay of February, or
“2. Sign and deliver to the hoard an assignment authorizing deduction of a representation fee equivalent to the dues and assessments of the association (including the National and Michigan Education Associations). Such sums shall be deducted during the eight (8) consecutive pay periods commencing the 1st pay of October from the salary of all teachers authorizing deductions and remitted within thirty (30) days to the association. Teachers beginning their employment at the beginning of the second semester and signing and delivering to the board an assignment authorizing deduction of said representation fees may have fees for that semester deducted from the six (6) consecutive pay periods commencing the 1st pay of February.
“Any teacher who wishes to pay cash for this fee must pay the full amount to the treasurer of the SEA within thirty (30) days of the commencement of employment.
“In the event the representation fee shall not be paid, the board upon receiving a signed statement from the association indicating the teacher has failed to comply with this condition, shall immediately notify said teacher that his services shall be discontinued at the end of the current semester. The board shall follow the dismissal procedure of the Michigan tenure act. The refusal of said teacher to contribute fairly to the costs of negotiation and administration of this and subsequent agreements is recognized as just and reasonable cause for termination of employment. However, if at the end of the semester, the teacher, or teachers, receiving the termination notice shall then be engaged in pursuing any legal remedies contesting the discharge under this provision before the Michigan Tenure Commission, or a court of competent jurisdiction, such teacher’s service shall not be terminated until such time as such teacher or teachers have either obtained a final decision as to the validity or legality of such charge, or such teacher or teachers have ceased to pursue the legal remedies available to them by not making a timely appeal of any decision rendered in said manner by the tenure commission, or a court of competent jurisdiction.
“This section is subject to an indemnity agreement executed September 3, 1968 between the parties which is incorporated herein by reference.”
A communication dated September 16, 1968, was sent to all non-members of the association. It read:
“September 16, 1968
“To: Non-members of SEA
From: Donald C. Kouba, Pres. SEA
Subject: Agency Shop
“Agency Shop is a reality in the Southgate Community School District. What does this mean to you as an employee?
“Basically, you have four choices. They are as follows:
“1. Become an active member in the Southgate Education Association. (See attached form.)
“2. By October 2, 1968 pay to our treasurer, Pat Lendzion, $81.50 which is the equivalent dues paid by members of the SEA. This will not entitle you to a vote in our Association.
“3. By September 23,1968 sign and deliver to our treasurer an authorization for monies to be deducted from your payroll. (See attached form.)
“4. Do not contribute and your employment will be terminated at the end of the first semester.
“It is hoped that each and every employee will choose the first option and become an active voice in the Southgate Education Association. The two dates of importance are: Payroll deduction: Sept. 23, 1968; Cash: Oct. 2, 1968.
“Respectfully submitted, /s/ Donald C. Kouba Donald C. Kouba”
September 26, 1968, plaintiffs filed this action to restrain application of the collective bargaining agreement, specifically article 2 thereof. After hearing oral argument and considering the written briefs, the trial court filed a written opinion holding valid the contested article 2, and by subsequent order, denied the relief sought.
The concise statement of proceedings and facts certified by the trial court establish that defendant school district is a public employer within the meaning of the Public Employment Relations Act (hereinafter referred to as PERA); that Southgate Education Association (hereinafter referred to as SEA) has been the certified collective bargaining agent for the teachers of the district since 1965; and that plaintiffs are members of the bargaining unit represented by SEA and are covered by the collective bargaining agreement. Neither Michigan Education Association nor National Education Association (hereinafter referred to as MEA and NEA) are signatories to this agreement.
The validity of art 2, § A, of the agreement under the provisions of PERA is the controlling issue and we deal with it first. We have not been cited to nor has independent research disclosed controlling precedent in this field of public employment and a negotiated agency shop provision in a collective bargaining agreement between a public employer and public employees. What the public policy in this area should or should not be is the task of the legislature and not the task of the courts. Our task is to determine the validity of the contract provision before us according to existing policy as legislatively announced. This precludes consideration of precedents in the private employment field.
The right of public employees to organize for the purpose of collective bargaining is established by MCLA § 423.209 (Stat Ann 1968 Rev § 17.455[9]). The representative selected by a majority of the public employees in a unit becomes the exclusive representative of all employees in the 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 pub- lie employer. MCLA § 423.211 (Stat Ann 1968 Rev §17.455 [11]).
MCLA § 423.215 (Stat Ann 1968 Rev § 17.455[15]) provides:
“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.”
Up to this point, the legislatively announced policy is clear that organization for collective bargaining purposes, negotiation and collective bargaining and resulting contracts with respect to “conditions of employment”, among other things, are sanctioned in the public employment sector. It is not clear, however, that agency shop or any form of union security agreement is a valid “condition of employment” and subject to collective bargaining in the public employment sector. PERA contains no provision specifically authorizing union security agreements as does MCLA § 423.14 (Stat Ann 1968 Rev § 17.454 [15]).
Assuming, without so deciding, that agency shop is a valid “condition of employment” and subject to collective bargaining in the public employment field, that bargaining is restricted by MCLA § 423.210 (Stat Arm 1968 Rev § 17.455 [10]): “It shall he unlawful for a public employer or an officer or agent of a public employer # * * (c) to discriminate in regard to hire, terms or other conditions of employment in order to encourage or discourage membership in a labor organization.” This language mandates that the public employer maintain a position of neutrality with respect to membership or non-membership in a labor organization when dealing with its public employees.
Does this language indicate a legislative intent to eliminate agency shop agreements in public employment collective bargaining contracts? Standing alone, it might. In context with the rest of the statute, it does not. MCLA § 423.211, supra, requires the selected representative to bargain for all employees, union and non-union. If benefits derive from such bargaining, non-union as well as union members enjoy those benefits, and it would be inequitable not to require non-union members to pay their proportionate share of the cost of obtaining and administering such benefits.
It is apparent from reading art 2, § A, supra, of the contract here involved that the validity of this agency shop provision hinges on the relationship between payment of a sum equivalent to the dues of SEA, MEA and NEA and a non-member’s proportionate share of the cost of negotiating and administering the contract involved. If that payment is greater than or less than that proportionate share, the agency shop provision is in violation of MCLA § 423.210, supra.
Although plaintiffs alleged in their complaint that payment of dues by members of the association entitled members to certain benefits not available to non-members paying an amount equivalent to those dues, no proofs were taken in this area. The record before us does not permit determination of the validity or invalidity of this agency shop provision.
The question presented by this action is of major significance to all public education of this state. Const 1963, art 8, § 3, reposes leadership and general supervision over all education in the State Board of Education. It should be a party to this action. Pursuant to the authority of GCR 1963, 820.1(7), we order the State Board of Education to join the action as a party according to its constitutional obligation and its interests.
The SEA and the board of education of the school district participated in the bargaining for and drafting of the contract. They have or can obtain the factual information to establish what relationship there is between a sum equivalent to the dues of the association and a non-member’s proportionate share of the cost of negotiating and administering this contract. The SEA and the board of education shall have the burden of going forward with the proofs on remand.
Plaintiffs have contended on appeal that the Teacher Tenure Act precludes a teacher from being discharged for failure to comply with an agency shop provision. The agency shop clause before us specifically provides for dismissal pursuant to the provisions of that act for non-compliance with the agency shop provision.
Plaintiffs also contend that CL 1948, § 750.353 (Stat Ann 1954 Rev § 28.585) precludes any deduction from their wages without their consent. We hold that statute inapplicable. The terms of the agency shop provision preclude deduction without authorization.
We decline to pass on other issues presented without a factual record. Any issues raised by the pleadings, except those decided by this opinion, are subject to proof on remand.
Reversed and remanded for proceedings consistent with this opinion. No costs are allowed due to the public question involved.
All concurred.
MOLA § 423.201 et seg_. (Stat Atm 1968 Rev § 17.455[1] et seq.).
PA 1937, No 4, as amended (CL 1948, § 38.71 et seq.; Stat Ann 1968 Rev § 15.1971 et seq.).—Reporter. | [
25,
-51,
-61,
23,
36,
42,
51,
-25,
-36,
29,
-21,
21,
82,
-5,
-15,
-18,
44,
-2,
-40,
-1,
-25,
-24,
51,
-30,
-7,
11,
46,
-9,
11,
-6,
-54,
4,
-29,
-39,
-34,
-15,
38,
-8,
-14,
-31,
27,
0,
-27,
-28,
19,
-3,
22,
-9,
47,
9,
7,
43,
0,
16,
11,
14,
-36,
-26,
-51,
32,
-53,
24,
32,
-1,
0,
-66,
23,
69,
21,
-7,
-25,
53,
-7,
-14,
-14,
-3,
-24,
14,
-19,
46,
10,
-32,
-28,
-30,
-6,
19,
-51,
19,
-1,
5,
-21,
32,
-44,
18,
8,
22,
3,
29,
29,
-17,
4,
-12,
-33,
17,
5,
-21,
21,
-3,
-36,
9,
-27,
48,
38,
-51,
19,
-1,
-7,
-8,
32,
-7,
51,
13,
-40,
26,
-12,
14,
42,
-19,
-29,
12,
13,
10,
-46,
-5,
0,
67,
7,
-42,
80,
-15,
-33,
29,
-16,
-46,
38,
0,
-41,
-1,
-49,
-47,
-25,
-19,
33,
18,
-42,
-46,
21,
8,
19,
-13,
11,
-42,
-9,
18,
-31,
-14,
3,
-22,
39,
-10,
40,
-5,
26,
-53,
-15,
-33,
41,
17,
19,
11,
-17,
-55,
-3,
-12,
5,
-19,
-63,
-32,
4,
-48,
-12,
-68,
-20,
-46,
4,
-21,
-31,
52,
-55,
-8,
26,
4,
31,
26,
0,
15,
28,
-17,
-37,
37,
-6,
-24,
20,
-14,
-54,
10,
26,
51,
-1,
-40,
-5,
5,
12,
18,
-45,
-57,
23,
14,
36,
-20,
19,
28,
34,
3,
-2,
4,
-76,
35,
82,
-6,
-36,
-56,
-1,
5,
2,
-42,
-76,
-35,
-22,
35,
-56,
53,
49,
-17,
-29,
-5,
-17,
14,
-41,
7,
-67,
15,
12,
-10,
-61,
-10,
21,
57,
-17,
-2,
3,
37,
-18,
19,
3,
-49,
-30,
-10,
-8,
-13,
-50,
33,
-42,
-8,
-1,
30,
-12,
-19,
-17,
-7,
-17,
7,
40,
-4,
83,
-28,
31,
-11,
-6,
46,
-30,
-16,
51,
53,
-1,
9,
-62,
-26,
46,
-32,
-10,
-18,
-2,
-9,
5,
-48,
2,
-20,
-3,
31,
-26,
5,
30,
15,
-7,
-48,
40,
2,
4,
-43,
38,
-33,
2,
17,
45,
-21,
-13,
3,
16,
-23,
86,
46,
66,
-3,
-15,
-23,
-32,
-10,
-18,
-24,
8,
-32,
26,
45,
38,
48,
23,
38,
20,
16,
25,
12,
-30,
-66,
-32,
46,
16,
25,
44,
18,
15,
15,
17,
-19,
-72,
0,
34,
22,
-26,
30,
-42,
31,
-32,
-10,
23,
-29,
8,
33,
44,
-12,
23,
-63,
-38,
49,
-25,
-11,
55,
8,
-6,
-29,
44,
-10,
35,
-53,
28,
4,
-30,
-46,
-11,
39,
6,
13,
-46,
-27,
0,
-15,
95,
-36,
23,
-16,
51,
-1,
-10,
20,
-39,
-24,
-10,
14,
-22,
28,
-38,
1,
51,
-32,
-14,
-52,
-27,
-2,
-41,
-3,
12,
-11,
-48,
-44,
-27,
-40,
-48,
23,
6,
14,
-9,
45,
-25,
61,
-9,
9,
-66,
5,
53,
-7,
-74,
-16,
43,
36,
41,
9,
-28,
57,
1,
24,
-47,
-27,
11,
95,
15,
-45,
-49,
-21,
26,
29,
40,
-6,
-25,
-89,
-33,
38,
30,
-15,
-17,
-10,
25,
-50,
-47,
77,
4,
51,
53,
-9,
2,
26,
-37,
17,
30,
-44,
-1,
-9,
-41,
-31,
42,
-79,
10,
-23,
2,
41,
34,
-29,
-30,
20,
-8,
27,
-4,
33,
-41,
-6,
-2,
-25,
13,
-22,
-19,
22,
-1,
41,
59,
-9,
29,
-36,
11,
0,
7,
-10,
38,
20,
16,
57,
1,
6,
-57,
-47,
33,
8,
74,
-40,
-4,
-22,
-62,
3,
16,
12,
29,
-4,
-41,
44,
19,
-17,
20,
25,
-7,
55,
9,
-12,
-5,
-55,
13,
14,
-2,
-13,
27,
-18,
-12,
4,
19,
26,
-26,
-20,
8,
-39,
40,
13,
6,
-5,
25,
21,
-69,
11,
34,
11,
17,
31,
0,
27,
27,
32,
-73,
-3,
-38,
-55,
-12,
-1,
-20,
-36,
-2,
-18,
45,
-33,
-3,
-10,
17,
10,
44,
34,
-35,
44,
16,
-30,
5,
74,
57,
21,
24,
-26,
44,
-28,
-19,
-15,
-55,
-8,
18,
12,
38,
-14,
0,
-5,
14,
5,
-24,
-22,
-34,
35,
-16,
-39,
-36,
9,
61,
7,
-46,
16,
-57,
-34,
-23,
-59,
-7,
1,
-10,
9,
-3,
22,
23,
-33,
54,
-20,
-9,
10,
53,
-13,
76,
-3,
-15,
34,
12,
7,
-32,
-31,
-27,
13,
-9,
-2,
7,
-3,
-57,
-27,
66,
63,
-16,
-41,
3,
-69,
17,
9,
-27,
31,
-44,
2,
-40,
3,
-33,
-2,
-55,
30,
-21,
43,
-4,
-51,
-23,
35,
-20,
32,
-32,
45,
-55,
7,
13,
16,
-19,
-7,
34,
32,
46,
-11,
13,
-3,
-4,
31,
-35,
-11,
13,
11,
6,
29,
11,
11,
57,
-11,
-32,
-29,
-4,
28,
-68,
6,
-7,
-13,
-43,
-58,
-27,
1,
-28,
15,
-30,
-38,
-12,
62,
-27,
27,
-6,
45,
33,
26,
-28,
43,
72,
-35,
28,
1,
-26,
20,
49,
0,
-13,
-44,
-74,
-44,
45,
72,
20,
-25,
-29,
-35,
-13,
-26,
21,
51,
-11,
-14,
39,
-6,
-16,
49,
12,
1,
23,
-68,
-14,
20,
0,
33,
-30,
15,
-9,
-15,
-6,
-15,
-43,
13,
-52,
6,
7,
39,
-27,
15,
2,
32,
30,
7,
-40,
45,
26,
7,
8,
0,
-36,
12,
24,
6,
1,
-2,
-27,
-6,
-60,
-38,
3,
1,
19,
-8,
-17,
-13,
-61,
32,
-30,
35,
0,
-54,
-8,
4,
-65,
20,
53,
-20,
16,
-8,
38,
-36,
10,
-10,
-6,
58,
-17,
67,
10,
20,
60,
0,
0,
-63,
20,
25,
17,
35,
-37,
3,
-2,
-9,
-46,
51,
40,
-87,
49,
37,
-17,
-16,
-6,
23,
31,
19,
-40,
-49,
-3,
-23,
-11,
-34,
-55,
32,
36,
45,
-3,
0,
-13,
38,
42,
-25,
-39,
36,
10,
40,
-54,
2,
-29,
39,
-15,
30,
26,
16,
43,
-48,
-22,
-86,
1,
22,
-5,
4,
-24,
41,
-2,
0,
41,
-12,
75,
59,
54,
-49,
23,
-4,
-34,
28,
-26,
-50,
20,
1,
-3,
-17,
30,
-15,
-36,
29,
29,
26,
-45,
-13,
-19,
-4,
18,
-3,
10,
26,
21,
-2,
2,
-47,
-30,
-26,
0,
-16,
5,
13,
-7,
-10,
21,
-37,
-3,
-13,
5,
14,
0,
-16,
23,
49,
-31,
13,
-23,
-34,
-22,
-32,
25,
0,
42,
-45,
17,
-53,
25,
-34,
61,
-39,
48,
28,
-14,
-12,
-40,
-40,
73,
10,
82,
60,
-8,
3,
-1,
-13,
44,
30,
-61,
1,
-36,
3,
49,
-24,
-53,
-6
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.