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Court of Appeals No. 280261. | [
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] |
Leave to Appeal Denied April 8, 2009:
Court of Appeals No. 285847. | [
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Court of Appeals No. 281187. | [
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] |
Summary Disposition February 6, 2009:
Pursuant to MCR 7.302(G)(1) and 7.316(A)(1), in lieu of granting leave to appeal, we vacate the defendant’s conviction of second-degree murder. See People v Clark, 243 Mich App 424, 429 (2000), lv den 465 Mich 863 (2001). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. Court of Appeals No. 277866.
Kelly, C. J. I would grant leave to appeal. | [
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] |
Court of Appeals No. 289155. | [
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] |
Court of Appeals No. 283475. | [
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Leave to Appeal Denied July 17, 2009:
Court of Appeals No. 290061. | [
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] |
Court of Appeals No. 290226. | [
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] |
Court of Appeals No. 287725. | [
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] |
Leave to Appeal Denied February 6, 2009: | [
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] |
Court of Appeals No. 282393. | [
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] |
Court of Appeals No. 283532. | [
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] |
Court of Appeals No. 274575. | [
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] |
Court of Appeals No. 288220. | [
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] |
Court of Appeals No. 283320.
Kelly, C.J., and Cavanagh and Hathaway, JJ. We would grant leave to appeal. | [
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] |
Reconsideration Denied July 9, 2009:
Court of Appeals No. 283271.
Hathaway, J. I would grant reconsideration. | [
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] |
Court of Appeals No. 276447.
Kelly, C.J. I would grant leave to appeal. | [
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] |
Court of Appeals No. 277554. | [
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Order Granting Oral Argument in Case Pending On Application for Leave to Appeal February 20, 2009:
The Clerk of the Court is directed to place this case on the May 2009 session calendar for argument on whether to grant the application or take other peremptory action. MCR 7.302(G)(1). The parties shall submit supplemental briefs within 42 days of the date of this order addressing: (1) whether the trial court violated MCL 712A.17c and MCR 3.915(B)(1) by denying the respondent-appellant father’s request for the appointment of counsel to represent him at the trial on the supplemental petition requesting termination of his parental rights; (2) whether the trial court violated the respondent’s due process rights under Lassiter v Dep’t of Social Services, 452 US 18 (1981), by denying the request for counsel; (3) if the tried court violated MCL 712A.17c, MCR 3.915(B)(1), or the Due Process Clause, whether such an error may be harmless, In re Clemons, unpublished opinion per curiam of the Court of Appeals, issued August 19, 2008 (Docket No. 281004); Lassiter, supra; (4) whether the Department of Human Services is asserting inconsistent positions regarding the harmlessness of the error in denying counsel in termination of parental rights cases, cf., e.g., In re Clemons, supra, and the instant case; (5) if a denial of a request for counsel can constitute harmless error, whether the existence of an alternative placement plan or guardianship option, such as those provided for in MCL 712A.19a(7) and MCL 700.5201 through 700.5219, can prevent a denial of a request for counsel from being harmless; and (6) if the existence of an alternative placement or guardianship option can prevent a denial of a request for counsel from being harmless, by what standards should a court evaluate feasibility of the alternative placement or guardianship option in determining whether the error was harmless. The Solicitor General is invited to file a brief addressing the foregoing issues and to participate in oral argument before this Court. Court of Appeals No. 282062. | [
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Court of Appeals No. 278238.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 263499. | [
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] |
Court of Appeals No. 288078. | [
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30,
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] |
Court of Appeals No. 276763. | [
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Court of Appeals No. 286021.
Kelly, C.J. I would grant leave to appeal. | [
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Summary Disposition March 23, 2009:
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court, and we remand this case to the trial court for resentencing. The trial court erred in assessing 25 points under prior record variable 1, MCL 777.51, because the defendant did not have any prior high severity felony convictions. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. Court of Appeals No. 284737. | [
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] |
Court of Appeals No. 290313. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285761. | [
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] |
Court of Appeals No. 278172. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285449. | [
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] |
Court of Appeals No. 285812. | [
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Leave to Appeal Granted April 3, 2009:
The applications for leave to appeal the July 3, 2008, judgment of the Court of Appeals are considered, and they are granted, limited to the issues: (1) whether the prohibition of unfunded mandates in Const 1963, art 9, § 29, requires the plaintiffs to prove specific costs, either through the reallocation of funds or out-of-pocket expenses, in order to establish their entitlement to a declaratory judgment; and (2) whether plaintiffs are entitled to recover the “costs incurred in maintaining” this suit pursuant to Const 1963, art 9, § 32.
Reported below: 279 Mich App 507. | [
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] |
Court of Appeals No. 280112.
Hathaway, J. I would grant leave to appeal. | [
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Leave to Appeal Denied April 10, 2009:
Court of Appeals No. 285108. | [
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] |
Court of Appeals No. 277473. | [
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] |
Court of Appeals No. 289418. | [
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] |
Court of Appeals No. 282230. | [
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] |
Court of Appeals No. 288148. | [
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Court of Appeals No. 275215. | [
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Court of Appeals No. 277387.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 289306. | [
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] |
Court of Appeals No. 285187. | [
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] |
Court of Appeals No. 273488. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285264. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 286276. | [
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] |
Court of Appeals No. 280691. | [
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] |
Court of Appeals No. 287451. | [
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30,
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28,
46,
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] |
Court of Appeals No. 281166. | [
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] |
Court of Appeals No. 289089. | [
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49,
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] |
Court of Appeals No. 280721. | [
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] |
The Criminal Defense Attorneys of Michigan and Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. Court of Appeals No. 276959. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 283942. | [
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] |
Court of Appeals No. 287355. | [
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] |
Court of Appeals No. 284233.
Kelly, C. J. I would grant leave to appeal. | [
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Court of Appeals No. 280865.
Cavanagh, J., did not participate due to a familial relationship with counsel of record. | [
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] |
Summary Disposition July 9, 2009:
The application for leave to appeal is denied, because we are not persuaded that the questions presented should be reviewed by this Court. The application for leave to appeal as cross-appellant is also considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the March 6, 2009, order of the Attorney Disciplinary Board and we remand this case to the Attorney Disciplinary Board for consideration as on reconsideration granted. The board should reconsider its vacation of conditions A through D of the hearing panel’s June 25, 2008, order of suspension in light of the documentation provided by the Grievance Administrator. In all other respects, the application for leave to appeal as cross-appellant is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. ADB: 07-83-GA. | [
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] |
Court of Appeals No. 287819. | [
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] |
Court of Appeals No. 276993. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284488. | [
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] |
Court of Appeals No. 279651. | [
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] |
Court of Appeals No. 281205. | [
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Court of Appeals No. 272939. | [
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] |
Court of Appeals No. 287029.
Hathaway, J., did not participate. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 282292. | [
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] |
Court of Appeals No. 279115. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285114. | [
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] |
Court of Appeals No. 281857. | [
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] |
Court of Appeals No. 280082. | [
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-46,
-30,
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] |
Court of Appeals No. 287745. | [
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] |
Court of Appeals No. 287131. | [
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Court of Appeals No. 287367. | [
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] |
Reconsideration Granted May 1, 2009:
The motions for reconsideration of this Court’s December 19, 2008, order are granted. We vacate our order dated December 19, 2008. On reconsideration, the application for leave to appeal the February 21, 2008, judgment of the Court of Appeals is again considered, and it is granted. The parties shall address: (1) whether the Uniform Commercial Code (UCC), MCL 440.1101 et seq., applies to the purchase contract between the plaintiff and the dealer, Kitsmiller RV; (2) if the UCC applies, whether the UCC provides the plaintiffs exclusive remedy for revoking acceptance of the purchase contract, MCL 440.2608; (3) whether the UCC requires privity to revoke acceptance of the purchase contract; (4) whether third-party beneficiary status under the warranty confers on the plaintiff any rights independent of the warranty; (5) whether the economic loss doctrine and the UCC, MCL 440.1101 et seq., apply to the plaintiff consumer’s claims for breach of warranty; and (6) if the plaintiffs consumer complaints are not governed by the UCC, what is the nature and source of any non-UCC remedy.
Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. Summary disposition entered at 482 Mich 1123. Court of Appeals No. 270478. | [
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Cahill, J.
This is an action for damages for personal injuries received by the plaintiff July 2, 1887, while in the employment qf the defendant. The verdict was for the plaintiff, and defendant brings error.
I take the following statement of facts substantially from appellant’s brief:
Defendant was engaged in the manufacture of cars in the city of Detroit, and employed about 2,200 men. One part of its premises was known as the “lumber-yard.” James McGregor was the general superintendent. His son, James C. McGregor, was foreman of the lumberyard. Plaintiff had worked for the defendant about five years as a common laborer. His work was in the lumberyard. At the time of the injury, he was engaged with his mate in conveying pine strips from the piles of lumber in the yard to the planing-mill. Tramways extended through the yard from place to place, as shown by the map appended. Upon these tracks ran small platform cars, or trucks, about four feet by six feet, called “larries,” which were loaded with the material and pushed by the men to the place where the material was needed. There were small turn-tables at the crossings and intersections. The plaintiff had been at work with a larrie for over a year, and was familiar with the tracks. The men were accustomed to use whichever track they could use to the best advantage.
At the time of the accident, the plaintiff with his mate was pushing a heavy load of strips, which was taller than Sadowski, so that he could not look over it. The pile from which the larrie was loaded was near track No. 4 on the map. From the piles at the north end of the yard, two main tracks ran to the planing-shop at the south end of the yard, one of the tracks being on the east, and the other on the west, side of the kiln and planing-shop. These main tracks are numbered 1 and 5 on the map. Ordinarily, the course would have been for plaintiff to push the larrie along track 4 to turn-table at junction with track 6; thence east along track 6 to turn-table C; thence south along track 1 to the planing-shop. When plaintiff had reached the point indicated on the miip by letter L, he observed a team with a load of planks at the point K upon the track. This prevented their reaching the mill by track 1, and, without direc one, they pushed the car in the opposite 0 P'aning Shop direction to the turn-table G; thence along main track 5 to turn-table H, intending to go thence by the cross-track to the main track 1, and thence to the planing-shop. At the turn-table H the gang-boss met them, and told them to hurry up. He helped them turn the car around, and helped to shove it. The gang-boss took hold with plaintiff and his mate and helped push the larrie. They pushed it over the turn-table H, and along the cross-track towards the turn-table D, and, when some 18 or 20 feet from the turn-table H, they came to a ditch which had been dug the night before under the track, into which the plaintiff fell. The two men who were with him saw the ditch, and stepped over it. They were on the outside at the corners of the car, while plaintiff was in the center. The plaintiff was pushing with his breast and shoulders, and exerting all his strength.
The ditch was about four feet deep, and about three or four feet wide at the top. It was intended for a water-pipe for a pen-stock. It was dug there under the general superintendent's directions, James C. McGregor, the yard foreman, received orders from the superintendent to put in the water-pipe. He went to Murtisfield, the gang-boss; told him to put on some men, and start them to digging. They completed the ditch the night before the accident, and left it uncovered. The accident occurred about half past 8 in the morning. The job of putting in the water-pipe, involving the digging of similar ditches, had been going on about a week. The space between the turn-table and the ditch was unobstructed to the view; the tracks were laid upon the level ground. Plaintiff knew all the tracks, had used most of them, and was accustomed to use whichever could be used to the best advantage. The dirt from the ditch was piled upon the side. Plaintiff saw the dirt, but could not say on which side it was. He testified that he had no warning to look out for the ditch, and that he did not know that the ditch was there, and from the way in which he was pushing he could not see the ditch until he fell into it.
The errors relied on by defendant for a reversal of the judgment are two:
1. That the court erred in charging the jury that it was the duty of the master to furnish his employes with a suitable and safe place in which they may perform their work.
2. His refusal to charge the jury that the verdict must be for the defendant.
It is claimed that the charge of the court complained of amounted to an instruction that the defendant was an insurer of the safety of its premises; whereas it is contended that the i-ule is one of reasonable care simply, and that an employer is not responsible for any neglect to provide his servant with a safe place in which to work, unless it appear that such neglect is due to a want of reasonable care on the part of the master. Conceding the rule to be as contended for by counsel for defendant, I do not find the charge of the court, taken as a whole, open to the criticism he makes. It is true the charge starts out with this language:
“It is the duty of a master to furnish his employés with a suitable and a safe place in which they may perform their work; and he cannot delegate this responsibility so as to make the person who is intrusted with this duty a co-employé.”
This language is quoted almost exactly from that of Mr. Justice Morse in Van Dusen v. Letellier, 78 Mich. 502; but neither Mr. Justice Morse nor the learned circuit judge intended to lay down a rule which would make the master the insurer of those who were in his employ. The language used in each case is to be construed with reference to the facts about which they were speaking. The circuit judge in this case supplemented the language objected to with the following:
“The question for your consideration in this case is whether, after having constructed that ditch, they were negligent in leaving it unguarded. * * * Unless you find in this case that the defendant has been guilty of negligence, unless you find that the digging and leaving the ditch unguarded as I said before, at the point where the rails intersected the ditch, was such negligence as a reasonably prudent person would not have been guilty of, there can be no recovery in this case.”
This language is only consistent with the idea that the defendant must' be found by the jury to have been guilty of a want of reasonable care in providing a safe place for the plaintiff to work in before it could be held liable.
In support of the second proposition, that the jury should have been instructed for the defendant, counsel says:
“ 1. There is no evidence of negligence on the part of the defendant.
“2. If there was any negligence, it was that of a ' co-employ é.”
¥e are not prepared to say as a matter of law that the leaving of this ditch uncovered, under’ the circumstances, was not negligence. It was entirely unnecessary. It was accompanied with more or less risk. It was well known by the foreman of the yard, and by the gang foreman, under whose immediate direction the work was done, that these tracks were liable to be used at any time of the day. It was known that a man standing immediately behind one of the larries, pushing a load with all his strength, would have little opportunity to look about him for unexpected -dangers. The question of negligence, where the case from the facts is not free from doubt, should be left to the jury. Detroit, etc., R. R. Co. v. Van Steinburg, 17 Mich. 99; Hassenyer v. Railroad Co., 48 Id. 205; Sheldon v. Railroad Co., 59 Id. 172. The court cannot properly pass upon the question of negligence, except in cases where the facts are such, that all reasonable men would be likely to draw from them the same inference. Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274.
It remains for us to consider whether the negligence was that of a fellow-servant. It was said in Morton v. Railroad Co., 81 Mich. 423, that the rule may now be considered settled in this State, as well as in most of the states, not only that a master is bound to use reasonable care in providing safe tools and appliances for the use of workmen in his employ, but that this is a duty which cannot be delegated to another, so as to relieve him from personal responsibility. What was there said, in reference to tools and appliances for the use of workmen, is equally true of the duty of the employer in providing a safe place for his servants to work in. Van Dusen v. Letellier, 78 Mich. 502. It is contended by defendant’s counsel that—
“It is to reason fallaciously to say that a master is bound to furnish and maintain a safe place to work; that the negligence of a servant in performing his work has resulted in unsafety; that this is a violation of the duty of the master; and that in such violation the servant represents the master. If such reasoning were sound, there would be no decision of any court relieving a master from liability where a servant was injured through the fault of another; for the injury necessarily is occasioned by the place or appliance being made unsafe by the act or omission of the other servant. The happening of the accident, and the unsafe condition of the premises at the time of the accident, are not conclusive that the obligation of the master to use reasonable diligence has not been fulfiled, or that the unsafe condition is not the result of the lapse from duty of another servant, who is employed in such a capacity that he and the injured person are mutually subject to the consequence of each others’ faults.”
But the ingenious reasoning of counsel fails to take account of an important limitation upon the rule which relieves a master from liability when a servant is injured through the fault of another. That doctrine was never applied unless the one injured and the one at fault were engaged in the same general imployment. Whatever conflict has arisen in cases has been as to what should be considered the same general employment. The rule adopted by the federal courts, and in most of the states, and which seems to us most in consonance with reason and humanity, is that those employed by the master to provide or to keep in repair the place, or to supply the machinery and tools, for labor, are engaged in a different employment from those who are to use the place or appliances, when provided, and they are not therefore, as to each other, fellow-servants. In such case, the one whose duty it is to provide and look after the safety of the place where the work is to be done represents the master in such a sense that the latter is liable for his negligence. In Ford v. Railroad Co., 110 Mass. 240, it was said:
“ The agents who are charged with the duty of supplying safe machinery are not, in a true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating it. They are charged with a master’s duty to his servant. They are employed in distinct and separate departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require.”
In Railroad Co. v. Herbert, 116 U. S. 653 (6 Sup. Ct. Rep. 590), Mr.'Justice Field, speaking of the distinction that he found to exist between the providing of safe machinery and the business of handling and moving it, said:
“The two kinds of business are as distinct as the making and repairing of a carriage is from the running of it.”
Applying this rule to the facts under consideration, if it be true that the lumber-yard in which the plaintiff was employed, and which it was the duty of the master to keep in a reasonably safe condition, was, through the negligence of any one employed by the master to put in the water-pipe, left in a dangerous condition, that negligence is attributable to the master. The relation of fellow-servants did not exist between the plaintiff, who was employed in handling lumber, and McGregor and his men, who were engaged in a distinct labor affecting the safety of the yard as a place to work in.
It follows that there is no error in the record, and the judgment must be affirmed, with costs.
The other Justices concurred. | [
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Ohamplin, C. J.
This suit was commenced before a justice of the peace to recover the sum of $46.80 for a> bill of goods described as “250 feet 6 in. Eed Strip rubber belt,’5 ordered by defendants, who reside at Mint, Mich., from plaintiff, a corporation doing business in. New York city, on July 9, 1887. The declaration was. upon the common counts in assumpsit. The defendants, pleaded the general issue, and gave notice that the belting had been warranted, and did not sustain the warranty, and of recoupment of damages therefor.
The plaintiff recovered judgment before the magistrate, and the defendants appealed to the circuit court, whereon leave granted the defendants added a notice of set-off' containing the common counts in assumpsit. They also put in a notice as follows:
“The plaintiff will further take notice that the defendants in this cause on the trial thereof will further show that on the 10th day of May, A. D. 1886, they purchased of said plaintiff a quantity of Standard belting, consisting of 333 feet, for whirh said defendants paid said plaintiff the sum of fifty dollars, together with the freight thereon, amounting in all to sixty dollars; that, said belting on the sale thereof was warranted by said plaintiff to .be of first-class quality, and suitable for the-purposes for which said defendants desired the same, and a quality of belting which these defendants could warrant, on the sale thereof to their customers; and that said defendants purchased said belting, relying on said warranty so made by said plaintiff as aforesaid, and warranted the same on the sale thereof to their customers; that said belting, instead of being of first-class quality,’ and suitable ftfr said defendants5 purposes, and a quality of belting which defendants could warrant on the-sale thereof to their customers, was absolutely worthless, and entirely unsuitable for said defendants5 trade, and, by reason of the poor quality of said belting, the same-was worthless to said defendants, and they, by reason thereof, lost the sum paid for the same to said plaintiff, to wit, the su.m of sixty-dollars, and the said defendants will set off the same against the demand of the plaintiff in this action, and have the balance certified in their favor.55
Upon the trial, testimony was introduced from which it appears without contradiction that the plaintiff is a corporation organized and doing business under the laws of the state of New York, and has been engaged in the manufacture and sale of rubber belting for more than 25 years. It appears from the testimony that the defendants had dealt with the plaintiff previously to the time when the bill of goods was sold for which suit is brought. Defendants claimed that plaintiff warranted all goods purchased from it by defendants. This claim was denied by plaintiff, who introduced testimony tending to prove that it manufactured four grades of rubber belting; that the highest grade or brand was the “ Monarch;” that the next grade they called the “Maltese Cross;” that the next quality they called the “ Ked. Strip,” and the next grade they formerly called the “ Standard,” but after-wards changed the name to “Mohawk;” that it never warranted the “ Standard,” and never authorized its agents to do so, and did not warrant it to the defendants. Plaintiff also introduced testimony tending to show that, the plaintiff first began the manufacture of Standard belting experimentally in 1885, and put it on the market, in 1886. The effect of this testimony was to disprove the warranty which defendants claimed the agent of plaintiff made in the year 1884, which they claimed was made and intended as a continuing warranty, and also the claim that they had purchased Standard belting of plaintiff previous to 1886, which gave good satisfaction and was warranted,
The defendants offered in evidence a letter to plaintiff dated July 30, 1885, containing an order for good Standard belting, warranted, 300 feet 1-j-inch 2-ply; 300' feet 2-inch 2-ply; 200 feet 5-inch 3-ply; 300 feet 6-inch 3-ply, — and the invoice from plaintiff under date of August 1, 1885, filling the order and describing the belt ing as “Standard.” The first and third assignments of error relate to the ruling of the court in admitting this testimony. There was no error. It had an important bearing in the case in view of the claims assorted by both parties. It tended not only to support the defendants* theory that the quality of Standard belting was warranted to them, but it directly contradicted the testimony of th.e officers of the company that they did not warrant Standard belting in selling to defendants.
The defendants also introduced testimony tending to establish the fact that, at the time the plaintiffs agent was at defendants* place of business in 1884, he exhibited samples of their Standard belting; and that the goods ordered in July, 1885, were of the same grade and quality of the sample. It further appeared that on May 10, 1886, the defendants bought of plaintiff a bill of rubber belting amounting in the aggregate to $191.23, which they paid for; and among the belting purchased was 333 feet 6-inch 3-ply Standard belting. In fact' the whole bill of eight rolls was all of the brand called “Standard” belting, and was so billed to defendants. The widths of the belts were all the way from 6 inches to 1-J inches. After defendants had paid for the 333 feet, they sold 125 feet to a customer for use upon a threshing-machine, which after about three weeks was returned as utterly worthless and unfit for use. They supplied him with another belt from the same • roll, which was likewise returned. Upon the return of the first belt sold, •and on October 18, 1886, defendants wrote to plaintiff motifying it that they had sold the belt to a thresher, ¡and it had been returned and had split open in the seam. •Plaintiff replied October 20, 1886, that it did not guarantee its Standard belting for use on threshing-machines. An agent of the plaintiff, by the name of Barnes, called npon defendants in March, 1887, and defendants offered to purchase a roll of Bed Strip 6-inch 3-ply belting if plaintiff would allow the price of the 250 feet of worthless belting upon the purchase. The agent forwarded the offer to plaintiff, which it refused, and wrote to defendants March 8, 1887, explaining matters, and reiterating the statement that it never guaranteed a Standard belt for threshing purposes, and stating that it could not believe that Mr. Bradford did either, adding:
‘“We should like your trade, and wish you could decide to let us fill the order you gave to Mr. Barnes, without the condition you impose.”
On July 9, 1887, defendants sent to' plaintiff the following order:
“ Gentlemen: Please ship via Great Eastern Line 250 feet of 6-in. 3-ply Bed Strip rubber belting.”
This order was received by plaintiff, and it forwarded the same ^about July 14, 1887. The' bill amounted to §46.80, and has never been paid. Soon after receiving these goods the defendants shipped the 250 feet of Standard belting to plaintiff, and notified it that it was at its disposal. It replied that it was aware that it had been shipped back, but refused to receive it. The defendants then sent the plaintiff on August 22, 1887, the following:
“Flint, Mich., Aug. 22, 1887.
“ G-utta Percha & Rubber Mane’g Co.,
“New York.
“ Gentlemen: Inclosed please find draft of fourteen and-78-100 dollars (§14.78) to pay-
invoice of.........-.....................§46 80
Less belt returned........................ 32 02
§14 78
“ Yours truly,
“Wood & Atwood.”
The plaintiff refused to accept, but returned, the draft, and again refused to receive the belting. Another strip of 17 feet was sold by defendants, which also proved to be worthless, as claimed by defendants and testified to by witnesses. The balance of the 333 feet has not been returned nor offered.
The defendants claim, and introduced testimony which tended to prove, that the whole 333 feet of belting was valueless for any purpose, and they claim that, having paid for such belting, the money so paid was paid without consideration, and was so much money had and received by plaintiff to its use, and that they have the right to set it off against plaintiff’s demand. If it be true that they purchased belting to sell in their business from the plaintiff with an express or implied warranty of quality, and paid for it before ascertaining that it was worthless, and if the belting was so situated that its quality could not be determined by inspection before trial, and it proved upon trial to be absolutely worthless, the defendants would have the right to recover back the purchase price, or to set it off in an action of assumpsit brought by the plaintiff to recover a money demand due from the defendants to plaintiff. In such case the burden of proof is upon the defendants to show not only that the goods purchased were not as represented or warranted, but also to show, in case they are not returned or ’tendered, that they are absolutely worthless for any purpose.
In this case the court instructed, the jury upon the law of the case, as follows:
“ Gentlemen of the Jury: The plaintiffs in this case are a corporation known as the ‘ Gutta Percha & Rubber Manufacturing Company,’ who bring their suit against Charles H. Wood and William A. Atwood to recover for a bill of goods sold some time in the year 1887. There is no doubt about the amount of the claim for which the plaintiffs bring this action. It is 846.80, and interest thereon at 6 per cent, from November 1, 1887; but the defendants claim a set-off against this claim of plaintiffs • of §44.45, and interest from the 1st of July, 1886, which they claim they paid in ignorance of the quality of 333 feet of 6-inch rubber belting which they purchased from plaintiffs by the firm name of Wood & Atwood, in 1886, and the plaintiffs- request me to charge you — and I do so—
“ ‘ 1. That it appears from the undisputed evidence in this case that in the month of July, 1887, the plaintiffs sold and delivered to defendants 250 feet of what is called “ Red Strip belting,” at the request of defendants. I charge you, therefore, that the plaintiffs are entitled to recover the value of the same, which in this case has been testified to as the sum of §46.'80.’
“I have simply added ‘unless you find a set-off in favor of the defendants.’
“ ‘ 2. In' this case the defendants have sought to have set off against this demand of the plaintiffs for the price and value of this “ Red Strip belting ” a claim of damages arising out of the purchase by them and their partner, Edwin Sterner, of some so-called “Standard” goods, which it is claimed did not conform to an alleged warranty. This suit is brought upon a demand for goods furnished the defendants, Wood & Atwood, upon their written order-alone, and it is not competent for the defendants to set off any demand against this claim which defendants own jointly with any one else. The jury will therefore disregard the defendants’ claim of set-off.’
“I have added ‘unless you find that this contract out of which defendants’ claim of set-off arises was made with the same Wood & Atwood, and that at the trial below it was agreed that in case of appeal the set-off might be pleaded in the circuit court, and the case tried on the merits in the name of Wood & Atwood, and without regard to Sterner.’ If you find that to be so, then you would have a right to consider the set-off. I think those two áre all I can give, and I have'given these with a little qualification, so counsel can have the benefit of it if I am in error about it.
“ I further charge you, gentlemen, if you find that Wood & Atwood, with Sterner, though the firm name was Wood & Atwood, after the receipt of this belting by them, had an opportunity to inspect and examine, and determine- by such examination and inspection, the quality of the belting they received, and if defects could have been ascertained by examination and inspection thereof, and without doing so they voluntarily paid their bill, then they cannot have and set off the amount they paid at that time.
“I further charge you that a purchaser who gives an order for articles manufactured by the vendor or seller, who has before that sold and delivered to the purchaser by sample like goods, and when the purchaser .gives a subsequent order for like goods, such purchaser is entitled to rely upon the integrity and judgment of the seller in selling him goods to correspond with those before received in kind and quality, and to fill the order according to the expectation of the purchaser when it is made; and if the purchaser has no opportunity to examine and inspect them; and if the character of the goods are such that inspection would not afford him any opportunity of detecting any defect or fault in the goods, and he, relying upon, the judgment and integrity of the seller, pays for them while he is ignorant of their true condition, and under the belief that they are of the kind and quality he had ordered; and if the seller knew the business of the purchaser, and the uses to which such goods are to be put, and he does not send him the kind of goods ordered, but an inferior kind; and if you find that an inspection would not have disclosed the inferiority or imperfection of the goods received, — then the payment made upon receipt without examination would not be a voluntary payment. If you find the goods were of such a kind and quality that no inspection could have disclosed the defects, and’ that these defects and imperfections could only be discovered by the practical use of the goods by the purchaser, or by those to whom he has sold them, then upon discovery of the same the purchaser would be required to notify the sender within a reasonable time thereof. In this case it was some time in October, one of the letters show, when complaint was made of the quality of the goods. You will determine whether that was a reasonable time in view of all the evidence given you upon the subject of the sale of the belting and its use, and he would be entitled to recover back the amount he had paid in ignorance of the condition and quality of the goods if they were entirely worthless and of no value. If they were of some value, and not returned, if they were worth returning, then the purchaser would be entitled to recover the difference in value between the price he paid for them and the market value of the articles at the time he received them. If you find that this rubber belting was of any value, then you will determine it.
“ The purchasers had the duty imposed upon them of notifying the seller of the condition of the goods and their refusal to accept them, or they could return them. If the purchaser keeps them after he has made the discovery, he must account for them at their market value; that is, when their condition is discovered after payment made. If they were worthless entirely, and of no value, it would not be necessary to return them. But the burden of proving such is the case is on the defendants to show by a preponderance of evidence that the goods were of no value. _.
“If you find that the goods were not entirely worthless, but were of some value, then you will determine that value and deduct that from the amount of the defendants’ claim, the market value of such rubber, and the balance remaining you would deduct from the plaintiff’s claim, if it is less than the plaintiff’s claim, and the balance would be the amount of your verdict. If the defendants’ claim be greater than the plaintiff’s claim, — that is, if you find that the goods were absolutely worthless, and were not of the kind ordered, and that the payment made for them was not a voluntary payment made by defendants, and was made in ignorance of the condition and quality of the rubber without any fault or negligence on their part, and could not have been discovered by inspection, — then you could deduct plaintiff’s claim from defendants’, and the balance would be your verdict for defendants.”
We think the court erred in instructing the jury that if the goods were not entirely worthless, but were of some value, then they should find that value, and deduct that from the amount of the defendants’ claim. But we are also satisfied from the verdict of the jury that it was error without prejudice, as the jury found the full amount of the defendants’ claim, which shows that they must have found also that the goods weré of no value. This error in the charge was not passed upon by the decision of Copas v. Provision Co., 73 Mich. 541. The remainder of the charge of the court is sustained by Petersen v. Lumber Co., 51 Mich. 86. We have examined this record with great care, and we are satisfied that no prejudicial error has been committed.
Judgment affirmed.
The other Justices concurred. | [
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Cahill, J.
This action was brought to recover for an injury to the plaintiff, while in the employ of the defendant as switchman at Grand Eapids, on September 6, 1888. The declaration contains five counts, but upon the trial the plaintiff claimed to recover only upon the first and third counts.
The first count alleges that the' plaintiff was, as his duty required, on the foot-board in the rear of the switch-engine, and was directed by the defendant to couple to and remove a freight-car then standing on the railroad track in the yard, about six feet distant from the engine, 'and for that purpose the plaintiff signaled the servant of defendant in charge of the engine to move the engine slowly back to the freight-car, and that the defendant or its servants having charge or control of the engine,—
“ Not doing its duty in this behalf, and disregarding the motion or.signal so given as aforesaid by said plaintiff, so carelessly, negligently, and unskillfully started said engine with a full head of steam, thereby causing said engine to move suddenly and with great force against said freight-car, and by reason of the accelerated motion, and by reason of the carelessness and negligence of said defendant and its servants, this plaintiff was thrown off his balance on said foot-board, and causing him to fall or pitch forward, whereby his arm was caught at the wrist between the draw bar of said engine and the bumpers of said freight-car, and the hand of said plaintiff crushed and severed from his body.”
The third .count sets up the duty of the defendant to employ sober, careful, and competent men as engineers, switchmen, and firemen. It avers that defendant did not employ a careful and sober man and put him in charge of the engine,—
“And did employ and put in charge of said engine one David Moore, who was careless and negligent in the discharge of his duties, and who was in the habit of using intoxicating drinks, and who was in the habit of causing or permitting unskilled and unsuitable persons to run and manage the said engine in the business of the said defendant, and had thus been careless and negligent, and in such habit as above set forth, and of using intoxicating drinks, for a long space of time prior to the 26th day of July, 1888, to wit, for a period of one year prior to said 26th day of July, 1888, all of which was well known to said defendant, and was then and there unknown to the said plaintiff.”
It then proceeds to state that ifche plaintiff, in the exercise of his duties, was standing .on the foot-board at the rear of the engine, and was called upon to couple thereto and remove a certain freight-car standing on the railroad track in the‘.yard, about six feet distant from the engine, and that, for the purpose of making the coupling, plaintiff signaled the defendant and its servant, the said David Moore, then in charge of the said engine, to move the engine back to the freight-car slowly, but that said defendant, by and through its said servant and engineer, David Moore, disregarded its duty to cause the said engine to be managed with due care, and by a skilled and careful man, and to be run slowly and quietly back to said car, and, disregarding said plaintiff’s signal,—
“Caused and permitted one who was not the engineer, but was a raw and unskilled fireman on said engine, to run and manage the same, and, by and through the said fireman, did start the said engine too quickly and with too much force and speed, and caused said engine to be dashed against said freight-car with great violence, and thereby, without any fault or negligence on the part of said, plaintiff, he, the said plaintiff, was caused to lose his balance and pitch forward against said car, and, by the rebound of said car against said engine, the hand of said plaintiff was caught between the draw-bar of said engine and the bumper of said car, and was crushed in such manner and to such an extent as to make amputation thereof necessary.”
And it avers that the accident was caused by the negligence of the defendant in putting and continuing said Moore in charge of said engine, and by the carelessness and negligence of said person in charge of the engine, and for want of due care and attention to the signal given by the plaintiff.
The evidence on the part of the plaintiff showed that the accident occurred on September 6, 1888, in the afternoon. The plaintiff had been in the employ of the defendant as switchman in the yard at Grand Kajfids, about 11 days. Previous to that he had been employed in the freight-house of the Grand Rapids & Indiana Railroad Company at Grand Rapids for about three years, and during that time had coupled cars. At the time of the accident, the plaintiff was standing on the foot-board at the rear of the engine. David Moore, the engineer, was on the engine, and the fireman, also named Thompson, was operating it under the direction of the engineer. The engine was on a side track leading from a point in the yard north of Fulton street, and southward across Fulton street. Upon, this track there were several cars to be removed. The engine was to the north .of the cars, and was backing down to couple to and remove them. The engine was backed down slowly in obedience to signals made by plaintiff until it struck the car. The plaintiff failed to make the coupling, and the car was moved by the concussion a distance of 1-|- car-lengths. The engine stopped within about four or five feet of the car. The plaintiff, being still on the foot-board, again signaled for the engine to back, and took the coupling-pin in his hand to enter it into the head of the draw-bar of the car. The engine backed up and struck the car. The evidence is conflicting as to whether it struck the car hard or otherwise. It is also conflicting as to whether plaintiff was injured at this time. The plaintiff himself testified as follows:
“ Q. When you missed that coupling — failed to make the coupling — what did you do? You said that the car run forward some fifty feet or such a matter, and that the engine followed after it. Now, take up the statement at that point and go on and .state what you did then.
“A. Well, as the car run ahead, the engine followed until I got across the sidewalk of the street, and she stopped, and the car was moving just as though it was about to stop. I .noticed the wheel and I took hold of the link, and I raised my hand for him to back up, and the engine jumped, and that was the last I kn'ew of it.
“ Q. What do you mean by ‘the engine jumped?’
“A. Gave a sudden jerk.”
Other witnesses testified that the second contact between the engine and the car caused the empty car to strike the end of the car next south of it, standing on the south side of Fulton street, and to rebound toward the engine; and on the rebound, and while both the engine and car were moving toward each other, the plaintiff again attempted to make the coupling, and in this third attempt his hand was injured. After the evidence was all in, the defendant requested the court to instruct the jury that the plaintiff could not recover, which request was refused. The case was submitted to the jury, who found a verdict for the plaintiff.
The only error assigned relates to the refusal of the circuit judge to charge as requested by defendant’s counsel. The undisputed evidence is that, at the time of the accident, the engine was being operated by Frank Thompson, the fireman. The negligence relied on by plaintiff as the immediate cause of the injury was the unskillful handling of the engine by Thompson. Plaintiff testified that at the critical moment when he was about to couple the car the engine jumped or gave a sudden jerk, which caused him to miss his calculation, and caught his hand between the draw-bar of the engine and the car. If this were all that were in the case, clearly the plaintiff could not recover. The fireman was a fellow-servant in this general employment, and his negligence was one of the risks which the plaintiff assumed when he accepted employment from the defendant. The theory of the plaintiff’s case was that the engineer, Moore; was habitually negligent and untrustworthy, and that he frequently allowed incompetent persons to run his engine, and that on the occasion in question his allowing the fireman, Thompson, to operate the engine was the direct cause of the injury. The evidence of the engineer’s incompetency and untrustworthiness is very slight. Some of the plaintiff’s witnesses testify that he sometimes disregarded the signals ' of the switchmen in the yard; that- he was in the habit of having visitors upon .the- engine, and, at times, went away and left i^ entirely in the control of his "fireman. On the contrary, the testimony for the defendant showed that Moore had been employed as engineer in the same yard since 1873, and that during that time no one had been injured by his engine before the plaintiff, and that no serious injury to property had been caused through his negligence. His superior officers testified to his being a sober, reliable man, and a skillful engineer. But the previous negligence of the engineer, if established, 'was not important unless he was also shown to have been negligent at the time of this injury.
The only allegation of negligence connecting the engineer with the plaintiff’s injury is that which charges that it was negligent for him to allow the fireman, Thompson, to run the engine. It is not contended that it is necessarily negligent to allow the fireman to run the engine. The proof showed that this is customary, and sometimes necessary, and that it is the way in which firemen are educated to be engineers. If it is ever safe to allow a fireman to handle an engine, it mu'st be when, as in this case, it is done under the immediate direction of the engineer. Whether it was negligent to allow this particular fireman to run the engine, or not, must depend on whether he had had such experience in the work as to make him reasonably safe and fit for it. There is no evidence of his unfitness. The plaintiff put in no evidence on the subject, but the defendant put in evidence that he had been employed by the defendant about 20 months as a fireman, and 0 months as a brakeman; that he had been accustomed to handling the engine on which he was at work more or less, and that he was entirely competent to do so. That being so, there was no evidence to show that Moore, the engineer, was guilty of negligence in allowing the fireman to operate the engine on the occasion in question. As this was the gist of the plaintiff’s action, the entire failure of proof upon this point made it the duty of the circuit judge to direct a verdict for the defendant.
The judgment is reversed, and a new trial granted.
The other Justices concurred. | [
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Champuin, C. J.
The bill in this case was filed to foreclose a mortgage executed by Francis H. Strong and Georgia A. Strong, his wife, to Israel Hall on November 10, 1866, to secure to the said Israel Hall the payment of the sum of SI,500 mentioned in a promissory note, of even date with the mortgage, with annual interest thereon. This mortgage was duly acknowledged, and recorded in the office of the register of deeds for the county of Lenawee on November 16, 1866, and purported to sell and convey unto Israel Hall, as the party of the second part, the S. W ¿-of the S. E. ¿ of section 21, township 8 S., range 2 E., Michigan.
The bill of complaint sets forth that on or about February 23, 1882, Israel Hall assigned said mortgage to the complainant in this suit for the use and benefit of Zackra E. Strong and Olive May Strong, children of the said Georgia A. Strong, one of the mortgagors mentioned in said mortgage, together with the note and all moneys then due and the interest that might thereafter grow due on said note and mortgage, which assignment was duly acknowledged on February 23, 1882, and was recorded on the 25th of that month.
The bill further states that on June 18, 1866, the said Francis H. Strong, one of the parties of the first part in the said indenture of mortgage, and Joseph T. Strong, Chester W. Strong, and Gertrude J. Cole were the owners in fee and tenants in common of the said premises, and on the date last mentioned Joseph T. Strong and his wife, Chester W. Strong, and Gertrude J. Cole, for the consideration of 81,000, executed and delivered to Francis H. Strong a certain quitclaim deed, thereby granting and selling unto the said Francis H. Strong all their right, title, and interest in and to the said premises, to have and to hold the said premises with the appurtenances unto the said Francis H. -Strong, the party of the second part in said deed mentioned, during his natural life-time, and his heirs and assigns of his heirs, forever, but not to be conveyed during the life-time of the said Francis H. Strong; that this deed was duly acknowledged on June 18, 1866, by the grantors, and was recorded on July 2, 1866, in the office of the register of deeds of said county of Lenawee.
The complainant further states that the said indenture 'of mortgage before mentioned, executed by the said Francis H. Strong and Georgia A. Strong, his wife, to the said Israel Rail, was given upon and intended to cover all the right, title, and interest of the said Francis H. Strong and Georgia A. Strong in and to the said premises described therein; that said Zaekra E. and Olive May Strong, in the said assignment of mortgage mentioned, are the sole and only issue of the said Erancis R. Strong and Georgia A. Strong; that both are living, and are under the age of 21; that about January 1, 1878, said Francis H. Strong left and abandoned his children withr out providing them any means whatever for their education, support, or maintenance, and has ever since persisted in so deserting them, and has wholly neglected and refused to provide anything whatever for them; that the said mortgage was assigned to the complainant by the said Israel Hall for the use and benefit of said children, in order that the complainant might collect the same and apply the proceeds thereof for their use and benefit; and that the same was and is the only means from which support can be provided for them.
The complainant further sets out that this mortgage so assigned to him contained no power of sale, as required by the laws of the State, to authorize its foreclosure by advertisement, and that the complainant, being entirely mistaken and misled by ignorance of this fact, on May 20, 1882, commenced proceedings to foreclose the mortgage by advertisement, prosecuted the same to sale, and became the purchaser thereat, and received the sheriff's deed therefor; that the deed so received was acknowledged on August 28, 1882, and recorded on August 29 in the office of the register of deeds of Lenawee county; and that he supposed that the proceedings to foreclose said mortgage by advertisement were regular, valid, and binding in law. Complainant also states that on December 7,' 1883, said Georgia A. Strong, by the name of Georgia A. Hayward (she having in the mean time married the complainant), in order to protect her children as the beneficiaries under said mortgage, executed a quitclaim deed of the premises to the complainant in trust for the use and benefit of said ' children; that said deed was duly acknowledged, and was afterwards recorded on November 14, 1884, in the office of the register of deeds of Lenawee county. The bill also sets out that previous to the execution of said deed by Georgia A. Hayward she had ■acquired a tax title upon said premises by deed from Charles M. Croswell, who had obtained the Auditor General’s deed for the taxes of 1867; but it further states that such deed, on account of errors in the assessment of said taxes of 1867, was absolutely void, and that no title whatever in and to said lands by virtue of said deed vested in the said Georgia A. Strong, now Hayward.
Complainant further states that the mortgaged premises had not been redeemed from the sale, and he, still being mistaken and utterly ignorant of the fact that the mortgage contained no power of sale, and honestly believing the foreclosure proceedings valid, brought ejectment to obtain possession of the land in the circuit court for the county ■of Lenawee ■ against the defendants Amos A. Kinney and Andrew Church and Charles Church, who were then in the possession of the premises, holding the same adversely to the complainant under claim of title; that issue was framed in said suit, and recovery had in favor of the plaintiff therein; that, before the time fixed by the statute had expired, a new trial of the cause was obtained by the defendants, and he, having then discovered the fact that the mortgage did not contain a power .of sale, ordered the ejectment suit to be discontinued; that the court refused to do so, for the reason that the beneficiaries of the mortgage appeared by another attorney, and asked leave to prosecute the suit, and that the suit resulted in a verdict and judgment for the complainant; that for some season, which the complainant does not explain, the suit was finally discontinued before the commencement of this suit to foreclose the mortgage . The complainant further expressly charges that up to the time he withdrew from said cause he prosecuted said ejectment suit in utter ignorance of the mistake as to his title to the mortgaged premises for tbe recovery of which said ejectment suit was instituted, and that h*e honestly believed that his title to said mortgaged premises was perfect to the extent of the right, title, and interest of said Francis H. Strong and Georgia A. Strong therein, and that, had he not been misled in respect to said title, he would have foreclosed said mortgage in equity before the expiration of 15 years from the time the same became due.
Complainant further states that Francis H. Strong, one of the mortgagors, is not a resident of this State, and has not been for 11 years last past, and that he is credibly informed, believes, and charges that the said Strong js financially irresponsible, and ■ has been ever since said note became due, and that the amount due. to the complainant upon said note and mortgage, as trustee of said minor children, will be wholly lost as to said children unless the same is realized by the sale of the mortgaged premises by foreclosure; that the note which was delivered at the time the mortgage was executed was payable on November 10, 1869, and that there is now due and unpaid upon said note and mortgage the sum of $3,860, and that no proceedings at law have been had to recover the debt, or any part thereof, except as before stated.
Complainant further states that from an examination of the records of deeds and mortgages in the office of the register of deeds in the county of Lenawee it appears that Amos A. Kinney and Lucinda Kinney have, or claim to have, rights and interests in the premises described in said indenture of mortgage, or in some part or parts thereof, as subsequent purchasers, incumbrancers, or otherwise. The bill prays for a foreclosure of the mortgage in the usual form.
The defendants Amos A. Kinney and Lucinda Kinney demurred to the bill for want of equity, and for the reason that the bill had not been exhibited within 15 years from the time the note and mortgage became due and payable, which demurrer was overruled, and thereupon they answered, admitting the execution and delivery of said note to Israel Hall, and the execution, acknowledgment, and recording of the assignment as stated in the bill, but neither admitting nor denying the execution and delivery of the mortgage therein referred to. They admit that the whole amount of said note according to its terms, is due and unpaid, and that proceedings were had to foreclose the mortgage by advertisement, as stated in the bill, and that such proceedings were void for the reasons stated in the bill. They admit also the commencement of the suit in ejectment, and the proceedings thereon, as stated in the bill, and the discontinuance of the suit. They admit that they have, and claim to have, rights and interests in the premises, and that such rights and interests were acquired by them subsequent to the date of said mortgage.
They aver that the defendant Amos A. Kinney has acquired all the right, title, and interest of the said Francis H. Strong under and by virtue of a sheriff’s sale and deed under a judgment and execution against said F’rancis in a suit in the circuit court for the county of Lenawee, and also several tax titles under deeds made by the Auditor General of said State on sales of said premises, made pursuant to law, for delinquent taxes; and that the defendant Lucinda Kinney has also purchased the premises under a tax sale made by the Auditor General of the State for delinquent taxes, pursuant to law, and received a deed therefor. The answer is also coupled with a demurrer, based upon the ground that the bill was not filed within 15 years after the mortgage became due and payable, and that no payment had been made thereon. A general and special replication was filed to-the answer of Amos A. and Lucinda Kinney.
The defendant Georgia A. Hayward answered, admitting the execution of the mortgage by herself and Francis H. Strong as charged in said bill of complaint, and the assignment thereof, and that no part of the mortgage has been paid, and that the sum stated in the bill was due as therein charged; and also admitting all other material facts charged in said bill.
Proofs were taken in open court before the Hon* Noah P. Loveridge, from which it appeared that Kalph P. Strong was at the time of his death the owner of the premises; that he died in the fall of 1864, leaving as his. heirs at law four children, namely, Joseph T., Francis H., Chester, and Gertrude Strong, who was married to a man by the name of Cole. It was also proven that the widow of Ralph P. Strong is dead. The" defendants Amos A. and Lucinda Kinney introduced in evidence several tax deeds of the premises, against the objection of the complainant’s solicitor, and also the proceedings under the attachment suit set up in his answer. The circuit, court entered a decree in favor of the complainant for the foreclosure and sale of the mortgaged premises.
Since, the decree of the court below, the decision in the case of McKisson v. Davenport, 83 Mich. 211, having been brought to the attention of the solicitors for the defendants Kinney, they waive the position taken by them that the statute referred to in that decision applies to the case under consideration.- But they insist, as do the solicitors for the complainant, that adverse claims and titles to land cannot be tried in a suit to foreclose a mortgage. The defendants’ solicitors also insist that under the general rules of equity the mortgage has become stale, and that the statute of limitations should be applied to it* "We do not think that this position is tenable. The comjolainant shows sufficient excuse for delay in filing this bill for the foreclosure of the mortgage.
Defendants’ solicitors further claim that the clause in the deed of the heirs to Francis H. Strong, reading as follows: “But not to be conveyed during the life-time of the said Francis H. Strong,” — operated as a restraint upon the right of alienation of Francis H. Strong, and therefore he could not give a valid mortgage upon the three-fourths of the' premises conveyed to him by that deed, he only having a life-estate in three-fourths of the premises, and his right to convey being prohibited. These words, if effectual for any purpose, operate, and were evidently intended, as a condition subsequent. The deed created a life-estate merely in three-fourths of the premises, and the insertion of the words served to make that an express condition which at the common law was implied in every estate for life or years. 2 Bl. Comm. 153. Such a condition, however, defeats the estate to which it is annexed only at the election of him who has a right to enforce it. No one entitled to enforce 'the condition has sought to defeat the estate granted to Francis Strong, and until this is done the mortgagee has a right to enforce his security to the same extent as if the condition were not contained in the deed.
The defendant Amos A. Kinney claims as a subsequent purchaser under an execution sale, but this is subject to the mortgage of the complainant, and he was properly made a party defendant. The complainant failed to show that Lucinda M. Kinney had any interest in the premises which was subject to his mortgage. The record discloses that she had a tax title upon the premises, which, the complainant must have known, could not be litigated in this suit, and there was therefore no reason for making her a party.
. The bill will be dismissed, with costs, as to her. The decree of the court will be affirmed, with costs, as to the other defendant, and no writ of assistance will be awarded to put Amos A. Kinney out of possession of the premises, which he claims to hold by a paramount title.
The other Justices concurred.
The note matured November 10, 1869.
This suit was commenced February 23, 1884, and discontinued April 29, 1889.
The bill was filed August 6. 1889.
He claimed under tax titles, as well as under the execution sale. | [
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Champlin, C. J.
Plaintiff brought suit on a promissory note signed by defendants, and the circuit judge directed a verdict for defendant Lamunion.
Briefly stated, the facts are that on September 9, 1886, one Green sold a parcel of land to Van Brunt, by land contract, for $1,350. The contract provided that $200 should be paid November 1, 1888, the balance at different specified periods in the future. Van Brunt, having no money with which to make a payment down, gave Green a note, signed by himself and Lamunion, due on or before November 1, 1888, and dated September 9, 1886, which was the date also of the land contract. The note was in form joint and several; but it is claimed by Lamunion that he signed it purely as an accommodation for Van Brunt, and that Mr. Green knew such to be the fact. This is admitted by Green. It appeared from the testimony of defendant Lamunion that Green had offered to pay him $50 if he would bring him a purchaser of the land, and that he brought Van Brunt. But the sale could not be consummated without a payment down of $200, and to accomplish the sale and so entitle him to the $50 he signed the note with Van Brunt for $200, which Green received as the down payment, payable November 1, 1888. The plaintiff, on the contrary, claims, and he introduced testimony tending to show, that the payment of this $50 was received by Lamunion as a consideration or inducement to sign the note. Green testifies that he received the note as and for the payment to be made down by Van Brunt, who went into possession of the land, which was improved, used it, and made some improvements thereon. The note has not been paid.
In March, 1888, one Johnson purchased from Green the note and land covered by the contract, subject to the rights of Van Brunt thereunder; and Green gave Johnson a deed of the land, and delivered the note to him, and at the same time, as he testifies, he informed Johnson that Lamunion was merely a surety on the note. It appears that Johnson made the purchase with a view to sell to one Terry, and that Terry would not buy unless he could have the land free and clear of Van Brunt's claim; and that, the next day after buying of Green, Johnson and Terry went to Van Brunt's, and Johnson purchased his interest in the land and an agreement to deliver possession by April 10 for the sum of $45, which was paid by Johnson, and Van Brunt surrendered his contract to him. This was on March 14, 1888. The next day he sold and conveyed the premises to Terry. Van Brunt surrendered possession to him at or prior to the time agreed -upon. When Green sold the land to Johnson he required him to pay the full price for the land, and take the note to collect. Johnson took the note, and paid Green the full price for the land. Lamunion was not consulted. Johnson kept the note, which was not due at the time of his purchase, and, after it was due, sold it to the plaintiff for a valuable consideration, who brought suit against the makers. Van Brunt did not defend. It should further be stated that the contract was drawn requiring the payment of the whole purchase price, viz., $1,350; and that the first payment to be made was $200, on or before November 1, 1888, which is the same time of payment stated in the note; and that no indorsement of any payment was made upon the contract.
The plaintiff’s counsel, in effect, requested the court to charge the jury that upon the undisputed testimony in the case the plaintiff was entitled to a verdict. The court refused, and directed a verdict for defendant Lamunion. Counsel for plaintiff bases his request upon the testimony of defendant, and claims that Lamunion is not an accommodation maker for the reason that he received a consideration for signing the note; that he was to receive $50 from Green if he brought him a purchaser; that Green required a payment down of $200, and would not sell on other terms; that to effect the purchase, and so entitle himself to the $50, he volunteered to sign the note, which Green says he received as a down payment. The testimony bearing upon the question whether Lamunion signed the note as surety and for the accommodation of Van Brunt, when duly considered, leaves no room for doubt that the intention of the parties was that he should stand in the relation of surety, and the note was merely a security for the first payment provided for in the contract. The contract represented the whole purchase price of the land. No indorsement or deduction was made because of the note. It was the purchase price named in the contract for which Green sold the land to Johnson, and Van Brunt was obligated to pay the whole price to Johnson, according to its terms. The interest of Van Brunt in the land was merely a possessory right secured by the contract, subject to the payment of the entire purchase price and interest thereon. He sold that right and interest to Johnson for $45, and surrendered his contract. The entire interest then merged in Johnson, who conveyed the land by warranty deed to Terry. Johnson could not thereafter maintain any action against Van Brunt to recover any portion of the purchase price under that contract; neither could he against Van Brunt and his surety upon the note given to secure the payment of a portion of the purchase price. Plaintiff, being a purchaser of the note after maturity, stands in no better position than his vendor, Johnson.
It follows that the judgment should be affirmed.
The other Justices concurred. | [
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McGrath, J.
On March 5, 1859, Justus B. Smith executed his last will, giving all of his real estate to Huldah Smith, his wife, for her sole use and benefit during her natural life-time, and after here decease, in equal shares, to “ my own brothers and sisters and to the brothers and sisters of my said wife.” Justus B. Smith died February 1, 1884, and Huldah Smith died in January, 1890.
At the time of the making of said will there were living John Smith, Jacob Smith, James M. Smith, Victory M. Smith, and David K. Smith, brothers, and Lucy A. Bruce and Mary Bentley, sisters, of the testator, and George P. Coan, a brother, and Rebecca Smith, Roxana Perry, Maranda M. Brighton, and Edith A. Strong, sisters, of Huldah Smith, wife of the testator. After the making of said will, and before the death of the testator, Lucy A. Bruce and Mary Bentley, sisters, and Jacob Smith, a brother, of the testator, died, Each leaving issue. The legal heirs of Lucy A. Bruce, Mary Bentley, and Jacob Smith conveyed their interests to the complainant, who files a bill asking for partition, claiming title to an undivided one-fourth share of the real estate of which Justus B. Smith died seised, remaining after the death of Huldah Smith, and the payment of debts. The answer concedes the facts set up, but denies any title in complainant, and asks for a construction of the will.
By stipulation it is agreed that—
“ 1. If the issue of Lucy A. Bruce, deceased, Mary Bentley, deceased, and Jacob Smith, deceased, living at the time of the death of Justus B. Smith, took the respective shares of the estate of said Justus B. Smith, deceased, by his said will, in the same manner as their respective parents would have taken had they survived their said testator, as set forth in complainant’s bill, then the complainant is entitled to partition as the grantee of said issue.
“ 2. If the said issue of said deceased sisters and brother did not take the respective shares of the estate of said Justus B. Smith, deceased, by his will, in the same manner as their respective parents would have taken had they survived the said testator, then said bill of complaint should be dismissed.”
The circuit judge dismissed the bill of complaint, finding as a matter of law that—
“The will must be. construed as speaking from the death of the testator, and the gift or devise, * * * being to a class part of whom are relatives and part of whom are not, must be construed as intending the class as it existed at the said testator’s death, and for that reason brothers and sisters who died prior to the decease of the testator were not devisees or legatees, and the children through whom said complainant claims had no interest in the said Justus B. Smith’s estate, and their deeds to said complainant conveyed nothing.”
We think the court erred in this conclusion. How. Stat. § 5812, reads as follows:
“When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have done if he had survived the testator, unless a different disposition shall be made or directed by the will.”
This section has come down to us from the revision of 1838. Hence it antedates the instrument in question over 20 yeaps, and the will must be construed in its presence. Similar statutory provisions have been enacted in nearly every state in the Union, and in most of them the precise question here has been raised and passed upon. Woerner, in his recent work on the “American Law of Administration,” after calling attention to these statutory provisions, says:
“The effect of these statutes is to vest in the lineal descendants of the deceased legatee or devisee the interest which the latter would have been entitled to if in esse when the will took effect. * * * But as, in all cases of testamentary disposition, the testator’s intention controls mere rules of construction, so these statutes will not be allowed to divert the gift contrary to the ascertained intention of the testator. Hence, if it appear that the testator intended no legatee to take unless he survived him, the legacy to one dying before the testator must lapse, although the legatee leave issue living.” 2 Woerner, Adm’n, 930.
In re Stockbridge’s Petition, 145 Mass. 517 (14 N. E. Rep. 928), the testator disposed of a portion of the residue of his estate as follows:
“ One of said five parts I direct my executors to divide equally among the children of Chester Stockbridge.”
David, a son of Chester and a nephew of the testator, died before the testator, leaving issue. Held, that by virtue of the statute, which is the same as ours, the issue of David, who survived the testator, were entitled to take what David would have taken had he survived the testator. The court say:
“ The circumstance that the gift to him was only as one of a class does not prevent the operation of this statute.”
In Moses v. Allen, 81 Me. 268 (17 Atl. Rep. 66), the will contained this clause:
“All the rest and residue of my estate, real, personal, and mixed, I give, devise, and bequeath unto my nephews and nieces, in equal portions."
The court say:
“The question is whether the surviving children of deceased nephews and nieces who died prior to the death of the testator take the respective shares of their deceased parents. We think they do. It was decided in Nutter v. Vickery, 64 Me. 490, that upon reason, principle, and authority the lineal descendants of a relative of the testator having a bequest in the will are entitled to the legacy given to their ancestor, though the original legatee was dead at the date of the will; that such may fairly be presumed to have been the intention of the testator; and that our statute, which has been in force for nearly a century, was intended to secure this result. The only difference between that case and this is that in that case the relatives were referred to by name, while in this they are described by their relationship to the testator. We think this can make no difference in the application of the rule."
In Woolley v. Paxson, 46 Ohio St. 307 (24 N. E. Rep. 599), one Paxson devised a portion of his estate to his son Isaac for life, remainder to the children of Isaac in fee-simple. Isaac died before the testator, leaving two daughters; Almira, intermarried with one Wooley, and Nancy, intermarried with one' Caulfield. Almira and Nancy also died before the testator, each leaving issue surviving the testator. Held, that, under the provisions of the statute relating to a devise to a child or other relation of the testator, the surviving issue of each of Isaac’s two daughters took the share of the devise to Isaac’s children which the deceased mother would have taken had she survived the testator. The court say:
“ The rule as to the lapsing of devises and legacies, that prevailed before the statute, defeated, in most cases, the intention of the testator. He generally made his will with reference to the objects' of his bounty as they existed at the time, and as though his will took effect at tbe date of its execution, not apprehending that a lapse would occur in case any of them should die before himself, unless some express disposition .should be made in anticipation of such event. The statute was passed to remedy such disappointments, and should receive a liberal construction, so as to advance the remedy and suppress the mischief."
After referring to the statutory provision, the court continues:
“ Nothing is more just and conformable to the probable intention of the testator in every instance. The fact that the child or relative is not mentioned by name should not defeat the application of the statute where the language, applied to the facts as they were at the execution of the will, designates a child or relative as an object of the testator’s bounty with as much certainty as if it were mentioned by name- * * * They were all adults, and their names well known to him, and the devise that he makes is to Isaac for life and then to Ms children in fee-simple. This, in the light of the circumstances, must be taken in a distributive sense, and is a devise to each of Isaac’s children of the fee-simple in remainder as definitely as if it had been to each by name. * * * Hence, as under a devise to a class each member who survives the testator would, independent of the statute, take an aliquot part of the devise as a tenant in common with the other survivors, therefore, under the statute in such case, the. issue of a deceased member of the class surviving the testator must take what the deceased would have taken had he survived. Any other construction would render the statute nugatory in a large class of cases to which its provisions are by its terms directly applicable."
See, also, Moore v. Dimond, 5 R. I. 121; Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Id. 546; Cheney v. Selman, 71 Ga. 384; Yeates v. Gill, 9 B. Mon. 203; Hoke v. Hoke, 12 W. Va. 327; Jones v. Jones, 37 Ala. 649; Gordon v. Pendleton, 84 N. C. 98; Shepard v. Shepard, 60 Vt. 109 (14 Atl. Rep. 536); Chenault v. Chenault, (Ky.), 9 S. W. Rep. 775, 11 Id. 426; Dixon v. Cooper, 88 Tenn. 177 (12 S. W. Rep. 445).
In the present ease, by the terms of the will itself, as well as by the operation of our statute relating to grants and devises made to two or more persons (How. Stat. § 5560), the devisees are made tenants in common. The testator distributed to each an 'equal share. The devisees, at the time of the execution of the will, were all known to the testator. They had matured. The “class" was liable to diminution only. The fact that the brothers and sisters of the testator were not named does not take them out of the statute. Indeed, under the authorities, the question—
“ Whether a gift is one to a class does not depend upon the fact that the devisees are not named individually, but upon the mode of the gift itself, namely, that it is a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, the share of each being dependent for its amount upon the ultimate number of persons."
Here the body of persons was not uncertain in number. The gift was to a certain number, in “ equal shares."
It may be urged that it was not the intention of the testator to make any distinction between his own brothers and sisters and those of his wife, and that the interpretation insisted upon by complainant makes the heirs of his own brothers and sisters take, while the heirs of any one of his wife’s brothers and sisters would not take; but the same would be true in case of bequests to A., B., and C., children, and D., a stranger, of definite amounts, for in case of the death of D. his issue would not take, while in the case of the death of A., B., and C. their issue would take under the statute, and solely by virtue of the statute.
It cannot be contended that the sole object of the statute is to provide for the disposition of property as to which the will fails, for it only relates to such lapses as would occur by the death of any child or other relation of the testator, and has no application, in any event, to the issue of persons other than children or relatives. The evident intent of the Legislature was not to prevent lapses in general, but to provide for the protection of the kindred of the testator. The case of Eberts v. Eberts, 42 Mich. 404, has no application, for in that case a different disposition was made by the will. The devise was “to the surviving children of my brothers,” and the Court held that the testatrix intended those children of her brothers who survived the testatrix. It is clear that the statute was intended to control, any and all legacies or devises to children or relatives, whether the children or relatives are the only legatees or devisees, or whether included with other classes not coming within its protection. Lucy A. Bruce, Mary Bentley, 'and Jacob Smith were relatives of Justus B. Smith, the testator, and complainant's grantors are the issue of such relatives, who survive the testator, and such issue took the respective shares of the estate of Justus B. Smith, given by the will, in the same manner as the said Lucy A. Bruce, Mary Bentley, and Jacob Smith would have done if they had survived the testator.
The decree of the court will be reversed, and the record remanded to the court below, where a decree will be entered in accordance herewith.
The other Justices concurred. | [
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Long, J.
This is a certiorari to review the proceedings of the judge of probate of Tuscola county in granting an order for maintenance to the widow and infant children of Townsend North, deceased. Townsend North departed this life in Tuscola county on June 12, 1889, leaving a last will and testament. He left surviving him his widow and three daughters, named Alma L., Ula, and Lena T. North, issue of that marriage, as well as two children by a former marriage. These last-named’ children are the plaintiffs in error in this writ.
The order complained of- was made April 28, 1890, and,, as stated in the order, was to be in full for all allowances to the widow for the support of herself and children, Alma L., Ula, and Lena T. North, during the progress of the settlement of the estate, and it provided that the real and personal estate given, devised, and bequeathed by said will be charged and be liable for the payment of said allowance in proportion to the amount of the several devises and legacies in said last will and testament. The order concludes as follows:.
“It is further ordered and decreed that the said Frank North and Mary E. Johnson, devisees and legatees under said will, and all other devisees and legatees thereunder, contribute to and pay said allowance in proportion to the amount of their several devises and legacies, which pro-portion is hereby determined to be as follows, viz.: The said Frank North- and Mary E. Johnson, jointly, one-third; and Alma L. North, Ula North, and Lena T. North, jointly, one-third; and the said Celia G-. North, one-third.
“It is further ordered and decreed that the said Frank North and Mary E. Johnson pay to the said Celia GL North the said one-third of the said allowance, viz., three hundred and twelve dollars, within thirty days from the date hereof, and that, in default of such payment, the said Celia G-. North have execution for the collection thereof.”
The decree also provides for execution against the minor children for the collection of like amount.
It appears that the will was duly admitted to probate, and it makes disposition of all of the estate of the.testator by three specific devises:
1. To the wife, all of the personal property except the bank-stock and other items provided for.
2. The bank-stock, being eighty shares of the First National Bank of Yassar, to Frank North and Mary E. Johnson.
3. Stock in the Yassar Woolen-mill Company, consisting of 334 paid-up shares, to the wife and three minor daughters.
The real estate is devised specifically and by descriptions as follows:
1. To the wife and her three daughters.
2. To Frank North and Mary E. Johnson.
The estate was valued and inventoried at the sum of $65,328.11.
On July 15, 1889, an order was made allowing one year to dispose of the estate and pay the debts, and six months to creditors to present their claims. Under an order made, creditors were required to present their claims to the probate court for allowance on or before January 15, 1890, and that claims would be heard on August 19, 1889, and January 15, 1890. On February 24, 1890, an order was made closing the hearing of claims. It is insisted, however, on the part of the defendant in the writ, that there is no proof of publication of notice to creditors to present their claims for allowance under the order, and that, upon the showing made, the creditors are not barred from presenting their claims; that in this condition, before the year had expired for closing the estate, the probate court had power to order such allowance for the expenses of the maintenance of the widow and three minor children during the progress of the settlement of the estate; and that abundant reason is set up in the petition for the allowance asked for.
Schedule 2 of the will makes the provisions for Frank North and Mary E. Johnson, and is as follows:
“ I also desire and devise. and intrust, on certain conditions hereinafter named, do set apart to my son Frank and daughter Mary E. (Mrs. Jas. Johnson) the following real estate and personal property, to wit: The farm in Fremont, being the south-west quarter, and the south one-half of the north-west quarter, of section twenty-two, in town eleven north, of range nine east; the west one-half of the north-east quarter of section twelve, in town eleven north, of range ten east; the south-west quarter of the south-east quarter of section thirty-five, in town twelve north, of range eight east; the north-east quarter of the south-west quarter of section twenty-nine, in town eleven north, of range eight east; also, all unsold or uncontracted-for village lots or lands in Vassar, and eighty shares of stock in the First National Bank of Vassar, Michigan. All the above-described property under Schedule No. 2 is given to my son Frank and daughter Mary E. (Mrs. Jas. Johnson).
“First. In trust to pay all just dues and demands existing against me at the time of my death.
“Second. To pay my grandson Newton E. North, my granddaughters Minnie A. and May A. North, one thousand dollars out of my real estate in Vassar, Juniata, or Dayton, not otherwise disposed of, each being entitled to one-third of the amount named, with the privilege of selecting and agreeing with the trustees as to the pieces and value, or wait for sale and payment of said lands.
“Third. After paying all debts and legacies as above provided, I desire to have the . balance equally divided between my son Frank and daughter Mary E. (Mrs. Jas. Johnson).
“Fourth. And I further desire and direct that the trustees give bonds for the faithful performance of the trust confided in them, and on the execution of such bonds I desire and direct that the administrators do deliver and set over the property named in Schedule No. 2 to the said Frank and Mary E., for the use and purposes above stated.”
It is contended on the part of the plaintiffs in error that the gift to -Frank North and Mary E. Johnson is a specific devise and bequest, and not dependent on any order of distribution or allotment by the probate court; that it is severed from the remainder of the estate for the specific purpose that such devisees and legatees should pay all the debts of the estate existing at the time of the death of the testator, and to pay the legacy of $1,000. It appears that these devisees and legatees gave the bond required by the terms of the will, and on January 15, 1890, the probate court made an order reciting the terms of the will under which Frank North and Mary E. Johnson were to take, and also that the bond had been given as provided by the will, and directing that the property so to be taken be so distributed to them, and that the executors make proper conveyances to them of the real estate so devised. It further appears that the probate court did hear claims, and disallowed claims to the amount of $498.17, and entered an order closing the hearing of claims on February 24, 1890. There is also a statement in the record of claims against the estate of Townsend North as paid by Frank North and Mary E. Johnson, amounting to the sum of $3,207.64. The only proof of the payment of these claims is an affidavit of Frank North attached to the list, and returned in the-record. Just what proofs were offered in the probate court- upon the hearing of the petition for allowance does not appear, as the case comes up on certiorari, and only brings up the record. But the record purports to be all the files in that court and orders made in relation to the estate.
It is quite apparent from the record that at the time the order was made the estate was not closed. The entry of the order by the probate court to that effect did not operate to close the estate. The statute provides for notice to be given to creditors of the time fixed for hearing claims before the order can properly be made closing the allowance of claims. How. Stat. §§ 5889, 5890, 5895. There is no proof, so far as shown by this record, that such notice was given. The matters of the estate were then in such condition that an order for allowance could properly be made under.the provisions of How. Stat. § 5813, which authorizes the probate court to make such reasonable allowance as may be judged necessary by the court for the expenses of the widow and minor children, constituting the family of the testator, during the progress of the settlement of the estate; the only limitation being that it shall not be for a longer period than until their shares in the estate shall be assigned to them. The year for the settlement of the estate had not elapsed when the order .was made.
It was for the probate court to inquire into the truth of the petition. The petition sets out sufficient facts, if true, to warrant the' order, unless, as claimed by the plaintiffs in error, the devises and- legacies to them were specific, and no allowance could be made out of specific devises and legacies. The devises and legacies to Frank North and Mary E. Johnson were no more specific under the terms of the will than were the devises and legacies to the widow and the minor children. It was the evident intent of the testator to set apart certain portions of the estate to each, — to the widow, one part; the minor children, three in number, one part; and to Frank North and Mary E. Johnson, one part. This included the whole of the estate. It is provided by How. Stat. § 5816, that—
“The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, . expenses of' administration, and family expenses, in proportion to the amount of the several devises or legacies, except that specific devises and legacies, and the persons to whom they shall be made, may be exempted, if it shall appear to the court necessary in order to carry into effect the intention of the testator, if there shall be other sufficient estate.”
In the present case the whole estate is specifically devised and bequeathed. It therefore became a matter for the probate court to determine, under the facts shown, when the petition for allowance was presented, just what allowance should be made, .and the proportion each part of the estate should contribute to meet the amount necessary to provide for the widow and minor children during the settlement of the estate. We are not called upon to decide whether the probate court fixed the amount which the plaintiffs should pay at too small or too great a sirm. The facts were before that court, and are not present here on this record. We find no error in the making of the order sought to be set aside by this proceeding.
The writ of certioraii must be quashed, with costs to the defendant in error.
The order of the probate court is affirmed.
The other Justices concurred.
Counsel cite How. Stat. § 5816; Proctor v. Robinson, 85 Mich. 284; Hays v. Jackson, 6 Mass. 149; Walton v. Walton, 7 Johns. Ch. 258, as supporting this contention. | [
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] |
Per Curiam.
Upon the argument of this motion, the board of auditors have, by our premission, intervened, so that the Court has before it the City Savings Bank, claiming to be a depository of public funds, the treasurer, and the board of auditors, who represent the county of Wayne, and who (the treasurer and board) are authorized to designate the depositories under the law. We are first to construe the act of 1879. This is necessary, as the relator claims that it entered into a contract with the out-going treasurer and the board of auditors to act as a depository for the term of two years. The question arises whether the treasurer and board have, under the law, the right to contract for a term of years; and, if so, can they contract beyond the incumbency of the person who holds the office of county treasurer for the time being? We are all agreed upon the following propositions as the proper construction of the statute of 1879:
1. It is not competent for a county treasurer and board of auditors to contract for depositing the public funds beyond the expiration of the term of office of the incumbent of the office of county treasurer for the time being, but a designation of a depository by the treasurer and board is good and valid until the expiration of the term of his office, and until a new designation is made by the newly-elected county treasurer and board.
2. It is the duty of the newly-elected county treasurer and board of auditors, as soon as convenient after the treasurer qualifies and enters upon the duties of his office, and without unnecessary delay, to designate one or more depositories, in accordance with the statute; and, in mak ing such designation, the treasurer and board have an equal voice.
3. The designation by County Treasurer Phelps and the board, dated December 9, and carried into effect December 31, 1890, is valid until the end of Mr. Phelps' term, and until a new depository is designated by Treasurer Huebner and the board. Beyond that the contract is ineffectual, and gives to relator no vested right to retain the funds.
4. Until such new designation, it is the duty of the treasurer to deposit the public -moneys in the designated depositories.
The -mandamus will issue in accordance with this opinion. | [
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Grant, J.
This is a suit in equity to enjoin the defendant the Ypsilanti Savings Bank from enforcing the collection of two promissory notes for $2,500 and $4,000, respectively. They were executed by Samuel Earp and complainant, the latter signing only as surety for Mr. Earp, and were payable to the order R. W. Hemphill, cashier of the defendant bank. Mr. Earp was at the time, and had been for several years, rector of the Episcopal Church, at Ann Arbor, where complainant resided. She was' his parishioner, and a communicant of his church.
On April- 19, 1889, the bank held'a note for $6,500, executed by Mr. Earp and Victoria O. Morris, which was then two months past due. This note was discounted for the sole benefit of Mr. Earp. Mrs. Morris, a married woman, was merely a surety, and received no benefit or consideration. When it became due, she declined to renew it. The bank sent Mr. Batchelder, its president, to Ann Arbor, to see Mr. Earp jn regard to the matter. On his return, he directed Mr. Hemphill to send to Mr. Earp two notes, one for ■ $2,500, payable- in 10 days, and one for $4,000, payable in 30 days, which were the notes now in dispute. The notes, dated April 15, were sent, and on April 19 were returned to the bank, signed by Mr. Earp and complainant, and accompanied by the following letter:
“ St. Andrew’s Rectory, Ann Arbor, Mich.,
“April 19, 1889.
“My Dear Friend: I went to see Mrs. M., as Mr. B. requested yesterday afternoon, but found that she had promised her husband during his sickness that she would not sign any more papers for any one. This was occasioned by a loss sustained through another party. She feels that her promise is sacred, and she is so completely crushed anyhow that I could not press the matter any further. I return two notes signed by Miss Henriques, who is just as responsible, and whose funds, perhaps, are in a more available shape. You can retain the other papers as a sort of collateral, Mrs M. having no objection to them as they are, and to her responsibility until they are paid. I hope this will remove your immediate difficulty. I have word this morning that the funds will be on hand within a few days, and all settled. I regret the inconvenience to Mr. B. of coming up here twice. If there is any expense attached to it, please charge it to me. ' Yours very truly,
“S. Earp.”
Upon the receipt of these notes, Mr. ITemphill, the cashier, pinned them to the Morris note,'put them in an envelope, and in this condition has always kept them. The bank made no entry whatever of the Henriques notes upon any of its books or records. No entry is made in the book of discounts, or the register of bills payable. Mr. Earp had an account with the bank, including the Morris note, but no credit is given him thereon. No indorsement of payment is made upon the Morris note. There is nothing whatever in any record or paper of the bank to indicate that these notes had been discounted, or that they had ever been classified as discounted paper. The only testimony on the part of the bank to show that they were discounted, or that the bank parted with value, comes from Mr. Hemphill, who testified that they were received in payment pro tanto upon the Morris note. If so received, only a few dollars of interest remained due upon the Morris note. But there are other significant facts shown by the evidence, bearing upon this question. Mr. Hemphill testifies that, after the receipt of these notes, he held the Morris note under the instructions in the letter above given,—
“As a sort of collateral to the balance of interest that was due on this [the Morris note] and some other little matters that he owed me.”
The instructions in the letter are:
“You can retain the other papers [meaning the Morris note] as a sort of collateral, Mrs. M. [meaning Mrs. Morris] having no objection to them as they are, and to her responsibility until they are paid.”
Mr. Earp was at this time indebted to the bank, aside from the Morris note, to the amount of several hundred dollars. Mr. Hemphill says that he held the Morris note/ expecting to squeeze him on the other matters if he could.
He admits having told Mrs. Morris in June, when she. came to see him about her note, that she and Miss Henriques had better fix the matter up some way among themselves. He also gave similar advice to Mr.. Jones» the agent of Miss Henriques, and admits that he might have said that the best arrangement was for each to pay one-half. To neither of these did he state that the Morris note, or any portion of it, was paid. In these interviews he treated it as a full and subsistent obligation. About the time of this interview between Mrs. Morris and Mr. Hemphill, the dishonest transactions of Mr. Earp, at Ann Arbor, had been exposed. The sheep’s clothing had been removed, and the wolf, in the garb of the priest, appeared in his true character. It was evidently in consequence of this that Mrs. Morris went to the bank to ascertain what her liability was. She is a lady of the highest character, was not cross-examined, and entirely disinterested as between the real parties to this suit. It does not appear whether she knew that she was not liable upon the note because of her coverture. If she did not, then her testimony.was against her supposed interest. Her testimony is as follows:
“I told Mr. Hemphill that I came to see if I was involved in any way through Mr. Earp’s transactions. Mr. Hemphill told me that there was a note which I had signed in his favor, but that, since my note had been signed, Miss Henriques had also signed a note, which he held as additional security. * * * Mr. Hemphill told me that he held me jointly responsible with Miss Henriques for the payment of the note.’’
Mr. ■ Hemphill admits informing her that he still held her note as collateral, but says:
<fMrs. Morris is mistaken in the notes that I held. That is all. I told her that I held them according to Dr. Earp’s letter; her note, under his instructions, as collateral security for anything that he owed.’’
He testifies that he supposed he could so hold it, and did hold it with that understanding until after this suit was brought. About this same time complainant, hearing rumors about these papers, went to Ypsilanti, first to the National Bank, and then to defendant’s bank, and was informed by Mr. Hemphill that he had Mrs. Morris’ note too.
The complainant is a maiden lady, upwards of 50 years of age, and possessed of considerable property. She had had considerable experience in loaning' her money, and had received notes, bonds, and mortgages. She had never signed a note before the ones now in suit. Previously to this, Mr. Earp had so secured her confidence that he had borrowed from her at one time $1,000, at another, $250. On the morning of April 19, 1889, being Good Friday, he called at complainant’s home. Her statement of what there took place is as follows:
“He said he had a little matter, a little investment, I think, in Ypsilanti. He would like to ask a favor of me. He said he knew I was a pretty good friend of his. I said I hoped so, and he wished me to sign these papers. He asked me if I would sign a paper. I said, ‘ Yes.’ Then I went up stairs to get pen and ink, and he put the paper on the table, near the end of the room, that stood at the right hand of me, and I commenced to sign the paper, and it was a very uncomfortable position, and I sat down on the sofa, close by the table, with the paper on a book, and he immediately came over in a very quick manner, and seated himself right beside me in a very flurried, quick manner, and I signed the paper. When I had signed that paper, he put another one on the book, with the left part of it turned over, the left corner of it turned over, and his hand around in this fashion [witness shows], and said that there was another one to sign; one was to send away, and the other was to keep. He was sitting at the right of me. He put his hand in this way over the paper.”
The first paper signed was evidently the note for $2,500; for she says she saw upon that the words “twenty-five,” but nothing more except Mr. Earp’s name. The other paper, which was the note for $4,000, was turned over, and held by Mr. Earp in such a manner as largely to conceal its contents. He made no explanation of the purpose or character of the papers, and she asked no questions. She testified that she supposed it was a church matter, and that she did not think it had any reference to bank business, or bank-notes, or anything of the kind; nor did she believe that they involved any pecuniary liability on her part. A very long and rigid cross-examination does not impeach her evidence as above given. Mr. Earp testifies:
“ I took the papers to her, and asked her to sign them, and she signed them. I did not tell her what they were. I said I had some papers that I wanted her to sign, and she signed them. I don’t remember that she ever signed any other papers with me. I told her that I had a little persona] matter at Ypsilanti. I cannot swear, or state positively, what I said to her.”
It is unnecessary to detail his testimony; for, in my judgment, his character, as shown by the record, is such as to forbid any confidence in it. He was produced as a witness by the bank, and Mr. Hemphill testifies that the money, obtained by him from the bank, was obtained under false pretenses. The learned circuit judge, who heard the case in open court, and saw the witnesses, says, in his opinion:
“It is incontestable that this maiden lady reposed the fullest confidence in the Rev. Samuel Earp, and, as her rector and spiritual adviser, trusted him most implicitly. To have doubted his honesty, or questioned the rectitude of his intentions, was as foreign to her thoughts as to have denied the sacredness of his high office. To her, he was the embodiment and 'representative of holiness in human conduct. * * * It is clear that, as between the complainant and Mr. Earp, this transaction cannot stand for a moment in a court of equity.”
A niece of the complainant was visiting her at the time she signed these papers. Whether or not she was present in the room at the time does not appear, but, on cross-examination, complainant testified that immediately after signing the papers she had a conversation with this niece, who told her that she should always look at anything before she signed it, and that complainant replied that, if she could not trust her minister, she could not trust any one.
Mr. Hemphill was acquainted with Mr. Earp, and knew that he was rector of St. Andrew’s Church, at Ann Arbor, the only Episcopal Church in the city. He knew Mrs. Morris, who lived in Ann Arbor, and that she was a married woman. Under his direction, the bank had, for some months, been discounting paper for Mr. Earp with Mrs. Morris as surety, which finally resulted in the $6,500 note, which she declined to renew. He had known complainant for 30 years, and knew that the relation of priest and parishioner, if not communicant,, existed between her and Mr. Earp. Whether or not these circumstances were sufficient to put the defendant upon inquiry, as to the bona fides of the transaction between complainant and Mr. Earp, qucBre. It is not necessary now to pass upon the question.
I concur fully in the opinion of the circuit judge that the transaction between complainant and Mr. Earp was fraudulent. These notes cannot be enforced, except in the hands of an innocent holder. He who has not parted with value is not such a holder. If these notes were received by defendant in payment of the Morris note, then the defendant parted with value; otherwise not. If $6,500 was paid by them upon the Morris note, then that note was worthless pro tanto, and could not be used by the defendant for any purpose whatever, except to the extent of the few dollars of interest which had accrued after its maturity. The testimony of Mr. Hemphill is utterly inconsistent with the idea that he used it as collateral only to the extent of this Unpaid interest. He •must be held to know that a paid note could not be held as collateral. The very terms of the letter, which Mr. Hemphill, in behalf of the bank, followed, did not contemplate the discharge of Mrs. Morris; but, on the contrary, expressly stated that she would remain responsible upon it. The letter contains no reference to any other debts of Mr. Earp other than that represented by the Morris note. The authority contained in the letter to hold that note as collateral must be held to refer to the new notes transmitted therewith. The theory of defendant in treating it as paid, and still as collateral, would be a legerdemain in banking without precedent. In my judgment, the evidence in this case leads to but one conclusion, viz., that these notes were not received in payment, but that they were received as additional security to the Morris note. The defendant bank has parted with nothing, and is not therefore an innocent holder. The notes were obtained by fraud, and courts of equity will restrain their collection.
The decree is affirmed, with the costs of both courts.
The other Justices concurred. | [
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Long, J.
This is an action of replevin of a race-horse known as “Dr. West,” and of which defendant, as sheriff of Wayne county, was in possession under certain writs of attachment issued out of the Wayne ’circuit court against the goods and property of one Clifton E. Mayne, of Omaha, Neb.
The plaintiff claimed to have obtained the horse of Mayne in May, 1888, in trade of a mare named “Delle Murray,” valued at $1,500; the mare’s colt valued at $1,000; and a filley, valued at $1,000. After the trade, Mayne still owed the plaintiff something over $8,000, when, in June following, plaintiff claims that Mayne turned over to him two other horses, known as “Tommy Linn ” and “ Dan D.” A bill of sale was given by Mayne to him in June of all three horses. This bill of sale was recorded in the office of the county clerk of Douglas county, Neb., on June 14, 1888, being the county in which Mayne and plaintiff both resided. This bill of sale is as ‘follows:
“ Clifton E. Mayne to John Eiley.
“Know all men by these presents, that I, C. E. Mayne, of the county of Douglas, state of Nebraska, of the first part, for and in consideration of the sum of $10,000, lawful money of the United States to me in hand paid at or before the ensealing and delivering of these presents, by John Eiley, of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto said party of the second part, his executors, administrators, and assigns, the bay horse, 8 years old, known as ‘Tommy Linn;’ the dark bay horse, 10 years old, known as ‘Dan D.;’ and the dark bay horse, 8 years old, known as ‘Dr. West,’ — belonging to me, and now in the possession of James Newbro for racing purposes through the different trotting and pacing circuits. To' have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever; and I do, for myself, my heirs, executors, and administrators, covenant and agree to and with said party of the second part, his executors, administrators, and assigns, to warrant and defend the sale of said property, goods, and chattels hereby, and unto the said party of the second part, his executors, administrators, and assigns, against all and every person or persons whomsoever.
“In witness whereof I have hereunto set my hand and seal this 12th day of June, A. D. 1888.
“Clifton E. Mayne.”
Under this bill of sale plaintiff claims to have taken possession of the horses at East Saginaw, this State, in July, 1888, a week before they were taken under the writs of attachment in Detroit, and that he was in possession at the time the attachments were served, and so notified the sheriff.
The declaration is in the ordinary form in replevin, claiming damages $10,000. The horse, during the time he was detain by the sheriff, — a month lacking two days,— was kept in the livery barn of one Watson, in Detroit, and plaintiff claims that jhe did not receive proper care and attention, by reason of which he depreciated in value-It was also claimed by the plaintiff that the horse was entered before the attachment for the races at Cleveland, Buffalo, and Chicago, which occurred during the months of July and August; that he paid $200 entrance fees at Chicago after the attachment, and before the races, and was obliged to pay $100 entrance fees at Buffalo after he obtained possession of the horse, and before he could be permitted to take part in other races, and was fined $10 at Buffalo, as, under the rules of the association, if a horse was entered in the race, and did not take part, he is fined, and the owner and horse are' suspended from taking part in any race until all moneys and fines are paid, all of which moneys plaintiff claims to have lost by reason of his horse having been held under the attachments. The horse was taken into the plaintiff's possession -under the writ of replevin, and on the trial the plaintiff had verdict and judgment finding the title in him, and also damages for detention to the sum of $1,310. Defendant brings error.
The defendant's contention on the trial was that the sale of the horse to the plaintiff was a mere sham, and the bill of sale a pretext to aid Mayne, so that, if in his rounds over the trotting circuits Mayne’s horses were levied upon, the plaintiff could come forward with the pretended bill of sale and claim them.
A great many errors are assigned, and the brief of counsel for the appellant contains many pages dwelling upon questions of fact which were properly submitted to and passed upon by-. the jury, and which it is not oui; province to consider. The whole case was submitted to the jury upon the theories of the respective parties, and we think it a fair submission as to the title and ownership of the horse in controversy. The charge put the burden of proof upon the plaintiff to establish his title, and the jury were instructed that, if the horse was. transferred to the plaintiff in good faith, he was entitled to recover.
The main question under the charge as presented by this record arises upon the question of damages which the plaintiff was permitted to and did recover in the case. These elements of dajnages have been set out as claimed by the plaintiff. The court directed the jury that if the plaintiff paid this $310, and was debarred from getting into the races by reason of the attachment, he would be entitled to recover this amount; and also, if the horse depreciated in value in the hands of the sheriff by reason of not being properly cared for, he would be entitled to recover the damages arising therefrom. Upon this last proposition there can be no question. There was some evidence to go to the jury, and we think the question fairly submitted under the charge of the court.
It is contended, however, by the defendant that the court was in error in instructing the jury that the $310 was a proper element of damages which might be awarded the plaintiff under the facts stated. It is claimed, first, that this element of damages could not be recovered under the ordinary form of declaration in replevin. If these damages were recoverable at all, the declaration is proper in form to allow the recovery under the provisions of the statute. How. Stat. §§ 8337, 8341. Both these provisions of the statute were construed by this Court in Phenix v. Clark, 2 Mich. 329, and Elliott v. Whitmore, 5 Id. 537. In this last case it was said:
“Whether the goods be unlawfully taken or wrongfully detained, the declaration is in the same form, and under it every question can be tried that is triable in the action of replevin."
Plaintiff's counsel claims that the recovery was not for the fine imposed in not letting the horse take part in the races, but that, under the charge, the court confined the damages to the amount- of depreciation in the value of the horse by reason of not being properly cared for, and the entrance fees which the plaintiff lost by reason of the detention of the horse by the sheriff under the writs. This part of the charge is as follows:
“If you come to the conclusion that Riley was entitled to the possession of the horse, that the sale was made in good faith to him, as he has told you, why then he will be entitled, gentlemen of the jury, to such damages as he has suffered by reason of the detention of the horse here in the possession of the sheriff. What those damages amount to is for you to say, if you find' that he was damnified. You have heard the testimony as to the care of the horse, as to the horse being out of condition; you have heard all the testimony upon that point. It' is for you to say, gentlemen of the jury, from that testimony, what Mr. Riley suffered, if he suffered anything. There has been evidence which had a tendency to show that the horse was somewhat out of training; that he had increased in weight; and that in consequence of that, as well as in consequence of his detention in Detroit, he was-barred from entering certain other races during the racing season of last year. Now, .what did he suffer by reason of those damages'? Obviously, if he was prevented from entering those races, from starting in those races where he had already entered, or where, he .had .paid the money, or was obligated to pay the money, — and I think that the testimony in this case shows, has a tendency to show, that he afterwards paid some $310 for entrance in which he was not able to start by reason of his detention in Detroit, — why, I say, gentlemen of the jury, obviously, if he was debarred, he would be entitled to recover those entrance fees, which I think amounted to, as I said before, $310. I may be mistaken in the sum, gentlemen of the jury. If I err in stating that to you as the sum, you, in your judgment, will correct me, remembering what the testimony shows upon that point. And also, if you find that Mr. Eiley is entitled to recover in this case, give him such damages as he has suffered, any further damages that he has suffered, by reason of the detention of the horse. If the horse was depreciated in value by reason of the detention in the hands of the sheriff, why then you shall ascertain what amount he was depreciated in value, and assess the damages accordingly.”
Under the testimony in the case, and the claim made upon the trial by counsel for the plaintiff, the charge does not bear the construction for which he contends. The plaintiff was called as a witness in his own behalf o$ the trial, and the following appeared from his testimony and the offers of his counsel while he was on the witness stand: From the plaintiff’s testimony it appears that the horse was entered for races at Cleveland, Buffalo, Chicago, and Detroit during the months of July and August. Those races, occurred between the time of the attachment and when plaintiff got possession of the horse under the writ of replevin, so that the horse was kept out of these races. He had paid the entrance fees at some of these places. He paid $200 in Chicago after the horse was attached, and before the races, and $110 before he could start the horse at Omaha. This $310 was paid in races in which he was entered, but did not compete. Mr. Bad-ford, plaintiff’s counsel, in explanation of this, stated to the court as follows:
“He was obliged to pay $310 under the rules of the association, because he had been entered at those places and did not appear, before he could proceed any further.”
This was not money paid before the horse was attached, but after the attachment, and before the possession of the horse was regained under the writ; that is, the plaintiff having entered the horse, and not paying the entrance money at the time of entry, and failing to start the horse in the race, the moneys were demanded and payment compelled before he could enter or start him in other races. The plaintiff explained the matter in this way:
" That when you enter your horse,, in the association for trotting purposes, if you do not propose to take part in ihem, and to pay the entrance, you are fined if you do not pay the entrance, and that horse and the party entering him and the owner of the horse are all suspended from taking part in any races on the association tracks until all the money is paid up, with fines, which is ten per cent, of the entrance money.”
It appears that the $10 paid was for such fines for failing to start at the Buffalo races. One hundred dollars entrance fees were there paid after the attachment, and $200 paid in entrance fees at Chicago after the attachment. These moneys were all paid, not for the entrance for the purpose of trotting the horse in those particlar races, but in order to be permitted to enter and take part in other race's in the future. This was in the nature of a penalty imposed under the rules of the association. It does not matter whether or not these penalties could lawfully have been imposed as a condition precedent to h^s entering the horse in future races, so far as the rights of the plaintiff and the trotting association are concerned; they are not such damages as the plaintiff would have a right to sue and recover for by reason of the unlawful detention of the horse. If this could be taken as a part of the plaintiff’s damages against the officer, then whatever terms the association might impose as a condition precedent to entry in other races might be recovered for. Such damages are too remote, even if they could be recovered at all under the provisions of How. Stat. § 9387. Let us suppose the horse entered at Buffalo, Detroit, and Omaha for the July and August races, the entrance fees being $100 in each place. The horse is unlawfully detained by the officer under a writ of attachment beyond the time when the races are to come off. The plaintiff desires to enter him in a future race at Chicago, but, in order to do this, he is compelled to pay the entrance fees at Buffalo, Detroit, and Omaha, though the horse did not start in those races. The 'association may have the right, under its rules, to impose these terms as a condition precedent to letting the horse in at the Chicago races. In an action against the officer for the unlawful detention, it could not be said that this would fix, or in any degree tend to fix and determine, the damages which the officer must pay, for, if the association could fix and determine it by the amount of the original entrance fee, it could* as well fix any other standard, and make the amount $1,000 or $10,000, and, being so fixed, it would measure the liability of the officer for such detention. The court was in error in permitting the recovery of these damages under the circumstances here stated.
Some errors are assigned upon the rulings of the court in the admission and rejection of evidence. We have examined those questions, and do not deem it important to discuss them. The trial seems to have been a fair one upon the main issue, and the evidence objected to admissible under the claimed facts.
For the error pointed out, the judgment must be reversed, with costs.
Champlin, C. J., Morse and Grant, JJ., concurred with Long, J.
Counsel for defendant cited Mizner v. Frazier, 40 Mich. 592; Talcott v. Crippen, 52 Id. 633; Aber v. Bratton, 60 Id. 357; Bateman v. Blake, 81 Id. 227.
At the Januaiy term, 1891, plaintiff moved that the judgment of reversal be set aside, and the judgment below reduced to §1,000, with interest, and affirmed, which motion was denied, the record not showing upon what theory the jury proceeded in awarding damages. | [
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Long, J.
This ease was once before this Court, and is reported in 76 Mich. 351. In the former proceeding the plaintiffs had verdict and judgment' by direction of the trial court. The cause has again been tried before a jury, and verdict and judgment found for plaintiffs for the amount of the notes in controversy. The defendants bring error. Some of the facts are stated in the former opinion, but, as the court on the former trial excluded a large portion of the defense offered to the notes, some new facts are made to appear in the present trial.
It appears that the-business at' Chase in July, 1883, was owned by Henry Seaman and Hiram P. Webster as partners, each owning an undivided half interest. The firm of Arthur Meigs & Co. was then composed of Arthur Meigs, William Dunham, and Richard G-. Peters. This last-named firm purchased from Mr. Webster his undivided half interest in the firm business with Mr. Seaman for $35,000, and thereupon the firm of Seaman, Dunham & Co. was formed. The members of this firm are the defendants in this suit; Mr. Seaman having deceased since the commencement of suit. When the ■ firm of Seaman, Dunham & Co. was formed, Mr. Seaman owned one-half interest, and the firm of Arthur.Meigs & Co., composed of Meigs,- Dunham, and Peters, owned the other half interest. The firm of Seaman, Dunham & Co. continued its business for a year and one month, when it was dissolved; Arthur Meigs & Co. purchasing Seaman’s interest for the sum of $10,000. The notes in suit were issued in the firm name, and put in circulation by Seaman, and it is not disputed that they were used in his private busi ness, and not for the benefit of the firm of which he was a member.
The contention of the plaintiffs on the trial in the court below was — ■
1. That the notes were issued and used by Seaman in his private business, with the knowledge and consent of his partners, Dunham, Meigs, and Peters, that they might be so issued and used by Seaman.
2. That, after they had been so used by Seaman, the other defendants purchased Seaman’s interest in the business, agreeing to piay therefor the sum of $10,000, and that this $10,000, or so much thereof as was necessary for that purpose, should be applied by Dunham, Meigs, and Peters in liquidating these notes.
The defendants contended on the trial that they never knew that Seaman was using the firm notes in his private business, and never assented thereto, and that the plaintiffs in taking the notes were aware that Seaman had no right or authority to use the firm notes in his private business, and that they knew the notes to be the fizun notes; that the $10,000 was to be mitde up by applying his overdrafts on the books, any non-authorized paper he had given, and the balance by the notes of Dunham, Peters & Co., the new firm, composed of Dunham, Peters, and Meigs.
It appears that at the time Seaman sold out to the other defendants his accouzrt was overdz’awn in the sum of $3,165.19. The agreement for the purchase of Seaman’s interest in the firm business by the other members of the firm is as follows:
“ This agreement, made this sixth day of August, A. D. 1884, betweezi Dunham, Peters & Co., of the first paz’t, and Henry Seaman, of the second part, witnesseth, that said Dunham, Peters & Co. have this day bought out all of the interest of said Henry Seaman in the property and business of the late firm of Seaman, Dunham & Co. and Seaman & Dunham for the sum of $10,000, and which is to be paid to said Seaman as follows:
“ Mrst. The accounts of the late firms of Seaman, Dun-ham & Co. and Seaman & Dunham are to be balanced, and any sum that Seaman has overdrawn, if any, is to be applied as part payment of said ten thousand dollars.
“Second. Said Seaman has used the notes of the late firms of Seaman, Dunham & Co. and Seaman & Dunham in his private business, and the amount of such obligations of said firms so used by Seaman is to be next applied upon said purchase price of ten thousand dollars.
‘‘ Third. As soon as the balance to make up said ten thousand dollars shall be ascertained definitely, said Dun-ham, Peters & Co. are to give said Seaman their note therefor, due August 6, 1885, with interest at 7 per cent, from this date."
It is contended by plaintiffs’ counsel that by this agreement the defendants recognized their liability on these notes, and by the agreement provided a fund for their payment; and it is not shown that any settlement was ever had with Seaman, nor any appropriation made of that fund.
It appears that Seaman carried on a business on his own account at Greenville, and had a contract with plaintiffs by which they sold materials for him; and when, in the course of such deal, Seaman owed plaintiffs, he gave them in payment for such indebtedness the notes of Seaman, Dunham & Co. The arrangement was that the plaintiffs were to sell shingles, the cut of a certain mill of Seaman’s, on-commission; that plaintiffs should from time to time make advances to Seaman, giving the notes of Towle, Douglas & Co. in proportion to the amount of shingles delivered to plaintiffs to sell, which it was agreed should not exceed at any time the amount of shingles on hand. It was further agreed that, if at any time when such notes became due sufficient returns had not been received from the sales of shingles to take care of such notes, Seaman should make provisions to meet them, either by giving his own notes, or in any other way he saw fit to provide for them, and in that way the notes in suit came to be given. During the transaction, two checks and eight notes were given, signed by Seaman with the firm name of Seaman, Dunham & Co. The checks and four of the notes were paid. It was contended on the part of the plaintiffs that, at the time of giving the first note signed in the firm name, plaintiff Douglas, who transacted all of plaintiffs’ business, inquired of Seaman why he gave the firm note, and was answered that it was all right, and in accordance with the arrangement Seaman had with his partners. Plaintiffs discounted the note in the usual way, and afterwards received the firm note& without further question. William Dunham, one of the defendants, testified that he had no knowledge of the making of these notes until about the time of the dissolution with Seaman. Meigs does not testify that he had no knowledge of their being given, or that he did not assent to such an arrangement. Peters was not called as a witness on the trial.
The first assignment of error relates to the exclusion of testimony offered by defendants. It was proposed by the defendants to prove the statements of Mr. Seaman, not made in the presence of either of the plaintiffs, that the notes in question were given in his private business. This the court ruled out, and upon this ruling defendants base their first assignment of error. These were statements made after the notes were given, and not in the presence of the plaintiffs, and were properly excluded. They were statements of one joint defendant to another joint defendant, and under no rule could such statements be held to affect the rights of the plaintiffs. The claim is made that this testimony was competent for the reason that Seaman had became identified with the plaintiffs in the wrongful use of the firm paper, and that therefore Seaman’s statements in relation to it were admissions that would bind the plaintiffs. There is no rule, even if the claim were admitted, that the plaintiffs were guilty of wrong-doing in taking this paper, that would make this statement of Seaman competent evidence. If made, it was after the transaction had closed, and upon that ground alone was properly excluded. People v. Arnold, 46 Mich. 269.
The third assignment of error relates to the refusal of the court to strike out the testimony of the witness Leroy Moore concerning statements made by Seaman to him as to why his bank account with him was kept in his individual name, and that it was actually the account of the firm of Seaman, Dunham & Co. This was a statement made by a party at and during the time of the transaction, and therefore admissible, as showing what the transaction was. 1 Bates, Partn. § 450, and cases there cited.
The assignments of error from 4 to 14, inclusive, relate to the refusal of the court to charge the jury as requested by the defendants. These requests are as follows:
“ 2. In this case, by the testimony of one of the plaintiffs, Mr. Douglas, it appears that the notes in question in this case were made by Henry Seaman and passed to Towle and Douglas, the plaintiffs, in a deal that existed between Towle and Douglas and Henry Seaman, in which Seaman, Dunham & Co. were in no way interested; and I charge you, as a matter of law, that these notes constitute no legal obligation against Dunham, Meigs, or Peters, who are the other, partners besides Henry Seaman, composing the firm of Seaman, Dunham & Co.
“3. Some evidence has been offered in this case on the part of plaintiffs which they claim tends to show that the defendants, Dunham, Meigs, and Peters, authorized Henry Seaman to make use of the paper of Seaman, Dunham & Co. in his private business, and a part of this is the written contract given by Dunham, Meigs, and Peters to Seaman, promising to allow him $10,000.00 for his interest in the property of the firm. I charge you, as a matter of law, that this contract, and the evidence offered with it, is not sufficient to charge the defendants with the paper in question; that Towle, Douglas & Oo. were not parties to the contract between Henry Seaman and Dunham, Meigs, and Peters at the time of their dissolution, and are not entitled in this suit to the benefit thereof.
“4. Evidence has been put in in this case upon both •sides bearing upon the question as to whether or not •Seaman had drawn from Dunham, Meigs, and Peters, in the way of using their paper unlawfully, the full sum of '$10,000 agreed to be paid to him for his interest in the firm property. The books of the company that were kept under the direction of Henry Seaman are introduced, and, as posted, it appears that Henry Seaman was ■overdrawn $3,165.19. The defendants also offer in evidence a number of checks and notes that were not upon ■the books, and which they say that Seaman used in his private business, making up a sum total that would raise the whole sum up to and above $10,000. Now, I charge .you, as a matter of law, that if you shall find from the testimony in this case that Seaman received by way of •checks and notes that he used unlawfully, added to the balance of the amount overdrawn, the full sum of $10,000, in that event plaintiffs cannot recover, and your verdict will be for the defendants.
“5. Examinations have been made before you, and inquiries into various items found upon the books of Seaman, Dunham & Co. on the part of plaintiffs; but an examination of the entire accounts, and the balance deduced therefrom, has not been prepared upon .either side. I therefore instruct you that this evidence cannot he considered; that it is not competent in this manner to ^attempt to find the balance, as between themselves, of the amount owing to the several members of the firm of 'Seaman, Dunham & Co.; and that this evidence that has been admitted cannot be considered, as it is not competent for you to decide as to whether Seaman has been paid his full $10,000 or not, by calling attention to odd entries, •and not taking into consideration the entire amount in ••the same manner.
“ 6. For the purposes of this case, it is the law that plaintiffs cannot recover upon the assumption that the notes in suit in the case might be recovered from defendants as if a part of the $10,000 agreed to be paid to Sea man for his interest in the property of the firm of Seaman, Dunham & Co., for the reason that no settlement or other lawful determination has been made between the members of the firm of Seaman, Dunham & Co. as to the amount that Henry Seaman would be entitled to upon an accounting between the parties; and that it is not competent for you to attempt in this case, in this manner, an accounting between the members of the firm.
“7. It being admitted in this case that these notes were given by Henry Seaman to plaintiffs to be used in the private business of Henry Seaman, this throws the burden upon the plaintiffs to prove that the notes were authorized or otherwise valid. This plaintiffs attempted to do by showing the agreement of Dunham, Meigs,' and Peters to pay Seaman $10,000 for his interest, which was to include his overdrafts. The 'burden still remained upon plaintiffs to show negatively that the full sum of $10,-000 has not been paid. This, plaintiffs have failed to do, and for that reason plaintiffs cannot recover.”
“9. Plaintiffs claim in- this, case that, although these notes may have been given by Mr. Seaman without the knowledge or authority from any member of defendants’ firm at that time so to do, notwithstanding such want of authority defendants have ratified the acts of said Seaman by recognizing them, and by paying other notes given in a similar manner and of the same character. There can be no ratification upon the part of these defendants unless they had.full knowledge of the acts to be ratified; and I charge you that there is no evidence in this case that defendants- had any such knowledge, and that there is no evidence of ratification upon the part of said defendants of these notes in question.”
“11. There can be no recovery upon the notes under and by virtue of the agreement made on the day of the dissolution, which has been introduced in evidence, until after there has been an accounting between Henry Seaman, or his estate, and the surviving members of the firm; and no such accounting is claimed or proven in this case, and your verdict must be for the defendants.
“ 12. I instruct you, as a matter of law, that upon the facts of this case, as shown by the plaintiffs, plaintiffs cannot recover, and it is your duty to render a verdict for the defendants of no cause of action.
“13. I instruct you, as a matter of law, that Towle and Douglas, not being parties to the agreement of Meigs, Dunham, and Peters to allow him the $10,000, including what he had overdrawn, for his interest in the firm of Seaman, Dunham & Co., have no right to claim the benefit thereof, and cannot have any claim thereon in relation to the notes in suit from anything offered in this case.
“ 14. I also charge you that if, in making the contract between Seaman and the other members of the firm to allow him $10,000 for his interest in the firm, the defendants were deceived, and did not know that Seaman had used the checks and notes of the firm to a large amount not on the books, this would render the contract void as to defendants.”
These requests, in effect, treat the case as one to be disposed of by the court. There were other issues, and claim was made, upon other grounds, that the plaintiffs were entitled to recover, aside from the question of this settlement between the members of the firm of Seaman, Dunham & Go. These requests were properly refused, as it is apparent that there was some evidence to go to the jury upon the theory that Seaman was authorized to issue the firm notes in his private business. The issue between the parties did not rest upon the sole question of subsequent ratification of Seaman’s acts in using the firm papei’, but claim was made that he was authorized to do so by the other partners; that they were cognizant of the fact at the time of issue, and made no objection to his, carrying on the business in that way. But, aside from these questions, the court fairly left the question of the subsequent ratification by the other defendants to the jury. The court instructed the jury upon that branch of the case as follows:
“An agreement in writing has been put in evidence, made at the time of the dissolution, in which Dunham, Meigs, and Peters have agreed to pay $10,000 for the interest of Seaman in the business.. That contract contains a provision in substance agreeing that the $10,000 shall be applied in payment of paper that Seaman had used, signed ‘ Seaman, Dunham & Co./ in his private business. Evidence is offered -to show that, at the time this agreement was made, Seaman deceived the other partners in the amount of such paper he had made use of, and in the amount of moneys he had drawn from the firm, in that a large amount that he had drawn was not upen the books of the firm, and not known by the parties, as defendants claim, when this contract was made. Now, if you find it to be a fact that there had been, before this suit was commenced, paid by the overdraft of Seaman, the Leroy Moore & Co. notes claimed to have been paid by the defendants, and the other notes and checks used by Seaman in his private business, to make up this $10,000, then the agreement would be void. Defendants could not be held to the terms of the contact to their injury, if they were misled by Seaman, and made it without a knowledge of the fact that he had made use of the company’s notes and checks.”
Referring to the agreement itself, it provides for the payment of these notes first, and an accounting to Seaman for the balance afterwards. It is true that it was supposed the $10,000 would cover all overdrafts and firm papers used by Seaman for his individual benefit, and the plaintiffs’ contention under the evidence was that the $10,000 would more than meet it, the defendants claiming that the $10,000 would not cover such overdrafts and notes; but, under the evidence in the case, this was a question of fact for the jury, and fairly submitted to them by the court under its general charge.
It is contended by plaintiffs’ counsel that, though the notes were given to pay Seaman’s private debts to the knowledge of plaintiffs, there were ample proofs to go to the jury tending to show that Seaman was fully authorized by the other members of the firm to make and deliver the notes in question. The evidence tends to show that, at the time of making the first note in- the firm name, Douglas, one of the plaintiffs, at once made inquiry, and was answered by Seaman that he had author ity to sign the firm name to such note. Other paper bearing the signature of the firm had been made by Seaman, and issued to the plaintiffs, in the course of the same transactions and dealings in which the notes in suit were made, and such former paper had been paid at maturity. The dissolution agreement ratifies the authority of Seaman to make such notes, and provides for their payment. Defendant Meigs promised James Towle, one of the plaintiffs, that the notes should be paid, and other notes signed by Seaman in the firm name were paid by the firm of Arthur Meigs & Co. after the dissolution of the firm of Seaman, Dunham & Co., and after this agreement was signed. Some of the members of the firm knew of the use made by Seaman of these notes as early as August, 1884, and did not repudiate them, but assured the plaintiffs that they were all right, and would be paid. Meigs does not state the time when he first became cognizant of the fact of the use made by Seaman of these notes. Dunham and Peters knew of it at the time of dissolution, though it is claimed that they were not aware of the extent of the liability. It is not claimed that the dissolution contract was one upon which the plaintiffs might found a cause of action, but a circumstance tending to show a ratification, and to' be considered by the jury among other facts and circumstances in the case. All these facts and circumstances were proper to be considered by the jury in determining whether there, was a. subsequent ratification by the other defendants. This was the theory of the court below as contained in its general charge, and there was no error in submitting these questions to the jury for their determination.
The court instructed the jury:
“It is a fact that the notes were given for the benefit of Seaman, and not for firm purposes, and this was known to Towle and Douglas. They (the plaintiffs) did not stand then in this case in the position of innocent purchasers of firm paper, for in this case they must be held to have known that the consideration for the notes-was the debt or promise of Seaman to the plaintiffs, and hence they knew that the firm received no consideration or benefit for the notes given. So, stopping right there, the plaintiffs could not recovel’. But the plaintiffs say— First, that the defendants consented to the giving of these notes by Seaman for - his benefit; and, second, that the defendants have ratified the acts of Seaman, even if the notes were given without authority. There are two questions for you to settle:
“1, Did the defendants authorize or consent to the giving of these notes by Seaman for his individual benefit?
“2. If they did not authorize it, have they since ratified it?”
The court then called the attention of the jury to the-various circumstances surrounding the case, and directed the jury that the burden was upon the plaintiffs to establish these facts. The charge was very full and fair.
It is well settled that whei’e a note or other security is. given in the name of the firm by one partner for his private debt, or in a transaction unconnected with the-partnership business, and known to be so by the person taking it, the other partners are not bound unless they have consented. The assent, however, need not be-express. It may be shown by circumstances, like’ any other fact. 1 Colly. Partn. § 439, note 4; Gansevoort v. Williams, 14 Wend. 133; Gruner v. Stucken, 39 La. Ann. 1076 (3 South. Rep. 338). In the present case there was-some evidence from which the jury might properly infer, not only that Seaman had authority to issue the paper, but the circumstances strongly show that, in the agreement for dissolution made between Seaman and the other members of the firm, they had knowledge of the fact that, these notes were outstanding, and that they were to pay and discharge them up to the amount of the $10,000; and the circumstances warranted the jury in saying that Seaman’s account was not overdrawn that amount. This would amount to a ratification of Seaman’s acts in issuing the notes, even though their issue was not authorized by his partners.
Some question is raised that the court was in error in admitting the partnership articles of Seaman, Dunham & Co. We see no error in this.
Counsel for the defendants take up in their brief each separate item of evidence offered by plaintiffs to show the authority of Seaman to issue the notes, and as tending to show the subsequent ratification of the act; and counsel argue that such testimony would not support the claims made for it. One of these items, standing alone, .may not have warranted the court in submitting to the .jury the question of authority, or of subsequent ratification; but the court was warranted in submitting to the jury all the facts and circumstances which the evidence tended to prove, and leaving it to be determined by them, :as a question of fact, whether all the facts proven, and the inference properly deducible therefrom, together with attendant circumstances, made out the plaintiffs’ claim.
Some other questions are raised which we do not deem it important to notice.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Cahill, J.
The Auditor General filed a petition in the Wayne circuit court, under the tax law of 1889, to enforce the lien for State and county taxes of 1887 upon respondent’s land. Respondent demurred to the petition upon the following grounds:
“1. That the tax law of 1889, under which said'petition is filed, is unconstitutional and void, for the following reasons:
“ a — It provides for advertising a sale of lands for unpaid taxes before obtaining a decree therefor,
“ b — It cuts off the common-law right of trial by jury, which existed in such cases when the Constitution of 1850 was adopted.
“ e — It makes the decision of the circuit judge, as to the exclusion or admission of evidence, final, thus cutting off the right to appeal, except as the circuit judge may choose to permit.
“ d — It deprives a person of his property without due process of law.
“ e — It deprives him of his day in court.
“f — The act undertakes to make the proceedings in the circuit court in chancery administrative instead of judicial.
“ g — In that it attempts to subvert the powers of the court in chancery by taking from it its judicial power, and conferring upon it simply administrative privileges.
“2. Because said petition does not show the jurisdictional fact that no sale of the lands described therein for nonpayment of taxes has been made, as is contemplated by section 71 of the tax law of 1889.”
Upon a hearing before Hon. Cornelius J. Reilly, circuit judge, the demurrer was overruled, and a decree entered against the land for the amount of the taxes, interest, and charges shown in the tax record to be due.
It is objected to this decree that upon the overruling of the demurrer the decree was entered without allowing the respondent to answer the petition on file by filing objections to the validity of the tax. The statute contemplates that all objections to the proceedings taken by the Auditor General for the enforcement of this lien shall be taken under section 53, and, whether such objections go to the validity of the law or of the proceedings taken under it, they must be made and filed in writing on or before the day fixed for the hearing of the petition, and no objections not so stated and filed can be allowed. If respondent had any objection to the validity of the taxes based on other grounds than such as were stated in his demurrer, they should have been made and filed under this section. The statute does not contemplate any merely dilatory pleading, and a resort to such practice would greatly impede the collection of the public revenues.
Counsel for defendant have refrained from discussing ■ at length the constitutional questions raised by the demurrer, giving as a sufficient reason therefor that all of them have been so recently and so fully considered by this Court in the State Tax-Law Oases, reported in 54 Mich. 350, that it would be difficult to throw any additional light upon the questions involved. I am in accord with the views expressed by Cooley, C. J., in his very learned opinions in those cases, and should not be able to add anything to their weight by an extended discussion. I hold the law to be constitutional.
The last point made by defendant, that the petition does not state the fact, claimed to be jurisdictional, that a sale of the lands described therein has not been made, is without force. The form of the petition, so far as the facts necessary to be stated is concerned, is prescribed by section 52 of the act, and the petition in this case contains all the statutory requirements.
The decree below is affirmed, with costs.
Champlin, C. J., concurred with Cahill, J. Morse, Long, and Grant, JJ., concurred in the result. | [
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Cahill, J.
This is an application for a mandamus to require the board of supervisors of Sanilac county to audit and allow relator certain sums as his fees and expenses as county clerk, acting as register in chancery, in the matter of the petition of the Auditor General, filed under section 52 of the tax law of 1889 (Act No. 195, 3 How. Stat. p. 2936).
It appears that, on the hearing of said petition in the circuit court for the county of Sanilac, in chancery, a decree was entered on April 30, 1890, in favor of the State, against certain lands described in the petition, for the taxes assessed on said lands, together with the fees and expenses incurred by certain officers in relation thereto; that, among other fees so included, were the clerk’s fees, acting as Register in chancery in issuing the subpoenas to the delinquent tax-payers, and also for certain disbursements made by the clerk for searches to ascertain who were the owners of the lands, that the clerk might know against whom to issue such subpoenas. There was taxed by the court, and assessed against each parcel of land the owner of which was personally served with subpoena, and who allowed a decree to pass against his land, the sum of one dollar, to cover the clerk’s fees and disbursements. These amounted, in the aggregate, on 669 descriptions, to $669. This amount, relator says, has already passed to a decree in favor of the State, an6 that, of this amount, $308 has actually been collected, and is now in the hands of the county, treasurer, while the balance of $361 is included in the sums -for which certain of the lands were bid in to the State, and -are now subject to redemption at the Auditor General’s office. In addition to the foregoing items, relator claims that he performed the same services, and made the same disbursements, in relation to other descriptions of land on the Auditor General’s tax record, against- which no decree was rendered, or, if rendered, which did not include the item of one dollar for his fees and expenses, because no personal service of subpoena could be'made; that the total amount of the fees and expenses due him on account of such descriptions is the sum of $229.25, to which add the item first referred to, $669, and we have a total claimed by relator of $898.25.
Relator presented his claim for the above amount to the board of supervisors on November 10, 1890. The claim was referred to a committee, which reported adversely to the allowance of it, on the ground that they could find no law authorizing 'its payment. The report of the committee was accepted and adopted, and the board adjourned sine die.
Upon these facts, the questions presented are whether there is any provision of law which entitles the relator to the fees and disbursements claimed by him, and, if so, then is his claim against the county such a one as we can compel the board of supervisors to audit and allow?
As to the first point, we are not cited to any express provisions of law which give the clerk' fees for issuing the subpcenas in tax eases. Section 53 of the tax law of 1889 prescribes the fees of the officer who serves the subpcena, but makes no express provision for the clerk. Section 75 of the statute provides that—
’ “ All compensation of county officers and expense incurred by them under the provisions of this act shall be paid by the county.”
Section 100 provides that—
“ County officers shall be paid for services under this act, by salary, or otherwise, as the boa,rd of supervisors shall determine.”
It is not claimed by the relator that the board of supervisors of his county has acted under section 100, and determined how he -should be paid for his services under the tax law, nor that the board has declined to act.
The county clerk is the ex officio clerk of the circuit court. How. Stat. § 577, provides that the county clerk—
“Shall receive for all services rendered the coimty in criminal cases, and as cleric of the circuit court, and for his services as clerk of the board of supervisors and as clerk of the board of county and district canvassers, such salary as the board of supervisors may fix; for his services in civil cases, and other matters, such fees and compensation as shall be provided by law.”
By section 6592, it is provided that the several circuit courts shall be courts of chancery, the powers of which shall be exercised by the circuit judges. By section 6594, the clerk of the circuit court is ex officio register in chancery. Construing these various sections together, it seems clear that section 577 is broad enough to cover all services “rendered the county” as clerk of the circuit court, whether on the law or the chancery side.
It is said by relator’s counsel that this tax law is a new statute passed since relator’s salary was fixed by the board; that it requires of him extraordinary services, not contemplated when his salary was fixed; that the tax law clearly contemplates that he shall have compensation for such services. This is a consideration that might well be addressed to the board of supervisors, upon whom the Constitution and laws devolve the duty of fixing the salary or compensation of the clerk. Const. Art. 10, § 10; How. Stat. § 483, subd. 9; Tax Law of 1889, § 100, supra. We cannot give this suggestion any weight. The salaries of public officers do not go up and down according as the law places more or less duties on them. When one accepts a county office, he knows that the salary must, by the Constitution, be fixed by the board of supervisors, and that no other authority has any power over it. If, after trial, he becomes satisfied that the salary is too small for the services required, the statute allows him to resign. How. Stat. § 647. While he holds the office, however, he must perform its duties, and every willful .neglect to do so is punishable as a misdemeanor. How. Stat. § 9259.
It is said that no provision is made in the statute for ascertaining the name or place of residence of the delin quent tax-payer against whom subpoena is to issue, nor for compensation to the clerk or other officers for making a search for that purpose; that the best way of ascertaining the name and residence of the delinquent taxpayer is by a search of the records in the office of’ the register of deeds; and that the relator has caused such search to - be made, and has incurred in so doing an actual expense of $239, which he has paid, or is liable for. But there is no provision in the tax law requiring the clerk to search the records to ascertain who is the owner of the lands on the tax record, nor to incur any expense in so doing. There is ground for saying that the tax law requires amendment in this respect. The purpose of the statute being to collect the public revenues, no doubt that would be greatly facilitated by giving notice to the person actually interested in the land at the time the proceedings to enforce the lien are commenced, if practicable; but, to accomplish this, the statute will require amendment. In tax proceedings, the officers cannot assume duties not required of them by law, and charge the expense thereof against the taxpayer. Section 53 provides that—
“ All fees and expenses incurred by virtue of this section shall be a charge against the real estate on account of which the same were incurred.”
As the only fees or expenses provided for in such section are those earned or incurred by the officer in making service, it would seem that only such fees and expenses could be charged against the land. This last question, however, is not involved here, and we do not decide it. We allude to it only because it may merit the attention of the Legislature. If it is desirable to fix the clerk’s fees, and to make them a charge against delinquent lands, the statute should so provide.
The relator’s claim is not such a one as the board of supervisors can be compelled to audit and allow, although, upon a proper showing, the board may be required to act under section 100 of the tax law, and to determine what amount of compensation, if any, the relator shall receive for his services under such law, and how it shall be paid.
The mandamus as prayed must be denied.
Champlin, C. J., Long and Grant, JJ., concurred. | [
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McGrath, J.
Proceedings were instituted by respondents, under an act relating to parks and boulevards in the city of Detroit (Local Acts of 1889, p. 607), to widen the boulevard, taking a strip from relator's property. These proceedings were afterwards discontinued, whereupon relator’s costs were taxed at $30.50, including an attorney fee of $25, and witness fees. Respondents refuse to pay these costs, and a mandamus is prayed to compel the payment.'
Costs are only recoverable when there is statutory authority awarding them. Booth v. McQueen, 1 Doug. 41; Jeffery v. Hursh, 58 Mich. 258; Tolford v. Church, 66 Id. 431. The only' provision relating to costs or fees in the act referred to, under which these proceedings were had, is section 27, which is as follows:
“Jurors in said proceedings; and all officers who shall render any services in said proceedings, shall be entitled to the same fees which are allowed for like purposes in ordinary cases of opening streets and alleys in said city, commenced in said recorder’s court; and the persons appointed to represent absent or other respondents, as above provided, shall be paid such sum as the court may deem reasonable.”
The act relating to opening streets and alleys in the city of Detroit (Local Acts of 1885, p. 346, § 22) provides for the payment of “ officers’, jurors’, and witnesses’” fees; and the general law for the opening of streets and alleys in cities and villages (How. Stat. p. 1300a, § 17) contains the same provisions as the local act. The general law, however, contains (section 19, as amended in 1889) a separate section providing for the allowance by the court of an attorney fee. Neither the provisions of the local street opening act nor the general law relating to street openings have any application to proceedings had under the park and boulevard act. The presence of the provision in the latter act for payment to persons appointed (by the court) to represent absent or other respondents, and of the separate provision in the general law providing for the payment of attorney fees, make it very clear that attorneys are not included in the term “officers.”
There is therefore no statutory authority for awarding either witness fees or attorney fees in proceedings under this act, and the application must be denied.
The other Justices concurred. | [
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Morse, J.
The theory of plaintiffs declaration in this case is that, while he was engaged in the employ of the defendant as a brakeman, the defendant agreed to and did furnish him a place in one of its cars to sleep nights while he was so employed, which said car was to be and remain on a side track of the defendant company in a convenient and safe place, for the use of the plaintiff to sleep in, out of all danger of passing trains and engines when so occupied by plaintiff; and that it became and was the duty of defendant to furnish said plaintiff a safe and reasonable car, and a safe place for the same, free from all danger, and to maintain a sepai’ate track for said car while used for sleeping, and for no other purpose, as is the custom, for the protection of said plaintiff while so sleeping, and so to conduct its business as 'not to strike or in any way interfere with said car while so used for sleeping purposes, and to use all due and reasonable care and caution to prevent any striking of said car and injury to plaintiff thereby; but that defendant neglected its said duty, and on October 3, 1888, the said car was placed upon a side track, but which track was used for business purposes, yet apparently out of all danger of being struck by passing trains and moving cars; and plaintiff, being informed by defendant that the car was in a safe place, and out of danger, went to sleep therein. He alleges that, without, any fault of his own, and through the negligence of the company in not maintaining a separate track for said car, and in running an engine and cars against the car, in which the plaintiff was sleeping, in á violent, unguarded, and negligent manner, he was severely injured. It is also alleged in One of the counts that the defendant granted permission to the plaintiff to sleep in and occupy one of the cars used for that purpose, and agreed with him that, while he was in the employ of the defendant, he might occupy said car for sleeping purposes; and that, for the convenience and profit of both plaintiff and defendant, the defendant agreed that there should be always located, at a convenient and safe place upon the line of its railway, a car for the occupancy of the plaintiff for sleeping purposes; and that, relying upon such agreement, he was sleeping in the said car at the time of the injury; and further, alleging, substantially, the same duty and neglect as hereinbefore stated.
At the close of the plaintiff’s proofs, the court directed a verdict in favor of the defendant.
The plaintiff’s case as made by the testimony is substantially as follows: Jacobs was employed as a brakeman upon the line of defendant’s road running from Grand Rapids to White Pigeon. He lived at Grand Rapids, and when he was there stayed overnight in his own house. He commenced work in the spring of 1888. He was employed by and got all his orders from his conductor, Charles Lynde, who kept his time. He received his pay from month to month from the company pay-car, and never talked with or received any directions from any officer of the ■ company save this conductor. When he hired out as brakeman, he asked Lynde, “ whether it was the same thing, sleeping in cars, like it had been years before.” In reply, Lynde told him to bring his bedding and sleep in the cars. Plaintiff testified that Lynde said that it was customary to sleep in the cars as it had been before when plaintiff had been on the road. Plaintiff had been a brakemen on the same road between Grand Rapids and White Pigeon 16 years before, when, he testified, it Avas the custom of the .brakemen to sleep in the caboose-cars. He took his bedding into the caboose-car some six weeks after he commenced work in 1888, before that time sleeping in the car, but using bedding belonging to others. This “ caboose-ear,” as it was called, was part of a coach, and a part was the conductor’s office and a washing-room. One end of it was furnished with seats, and used for 'passengers, and for the men to sleep in. Another brakeman slept in the car with plaintiff. When the car stopped overnight, it was run upon- a side track, which was used for the storing of cars. The defendant used the track more or less while plaintiff was sleeping in this caboose-car to put in and take out cars during the night. The plaintiff-was well aware of this practice, and testified that sometimes they would run against his car and push it down the track, but could not remember how many times it had been struck before' the night he claims to have been injured. On the night of October 3, 1888, plaintiff was awakened by a ‘'‘'terrible jar” between midnight and 4 o’clock in the morning. He had been asleep lying on his back in his bunk. His head was towards the car that struck the one he was in. He thinks “it drove his head against the end of the seat.” He woke up with a pain in his neck and head. It affected him so he thought his neck had been broken. There were two other men sleeping in the car. They were not injured, and did not get up. The car in which they slept was moved but little, if any. It is claimed that plaintiff’s neck was partially dislocated, and that a severe and permanent injury had resulted from this collision of the cars and jarring of the plaintiff.
It was attempted to be shown that it was the custom of this railroad company, and of all the others in this State, to furnish and maintain separate tracks upon which to place these caboose or sleeping cars, — tracks upon which no business was done while these cars were being used for sleeping purposes, — but no such custom was established by the testimony. The plaintiff’s counsel insist that it was the duty of the defendant to maintain a separate track for the caboose-cars for the men to sleep in at the terminal points on the road. We do not think the duty is shown in the present case. There is no testimony tending to show that, previous to the injury to the plaintiff, any such' separate tracks were maintained by the defendant, and the fact that after this accident happened the company did build and maintain such separate track at White Pigeon has no bearing upon the duty of the defendant to the plaintiff before that time. Nor is the agreement on the part of the company to provide an absolutely safe place for the car in which plaintiff was sleeping, free from all danger of such car being struck or run against by moving engines and cars, made out by the testimony.
The plaintiff shows how he first came to sleep in the cars on this road as follows:
“Q. Do .you know of your own knowledge whether there was the same custom or a similar manner of sleeping in cars on the other divisions of this Michigan Southern Eailroad?
“A. I do. I know by my- own knowledge, for I have slept in them before in the division between Elkhart and Chicago.
“ Q. Now you may state whether or not a similar custom exists on the other divisions of the road.
“A. About sixteen, 15 or 16, years ago, in that neighborhood, I was at Elkhart, and hired out to a Lake Shore Company conductor for to brake on the west end there, from Elkhart to Chicago. I hired out in the afternoon, between three and four o’clock, and he took me to the caboose track and showed me the car, and he says: ‘There is our car. There is where we make our home, in there. You can sleep in there. You can cook your meals in there, if you want to buy your own provisions, and go in there and cook them.’ I did not do any cooking in there, but I slept in there from the time until the train left, which was called there 11:45 — almost midnight — and went to Chicago. I only made two trips on that division. I came back on the Kalamazoo division, and have only worked on two divisions on the road. I do not think I have ever been over the other divisions of the road during that time. What they call the main line between Chicago and Toledo runs through White Pigeon, only the Kalamazoo division terminates at White Pigeon.”
He further testified that on his last hiring the conductor gave him the privilege of sleeping in this car. When asked if he did not sleep there for his own convenience, he answered: '
slept there in the car just as much for my own accommodations as I did for the company; for I would suppose that if I was wanted they would find me in the car.”
He further testified that he did not sleep on the car when at G-rand Eapids, because he had a better bed at home, but could not answer why it was not equally bener ficial for the company that he should sleep in the car at one place as the other.
It is evident that the permission or privilege to sleep in the car was granted to him in the situation that the car was, with all the risks pertaining to its sitiiation and condition on the track, and subject to the natural and ordinary risks of the business customarily done upon the track where it was left during the night. It appears that during all his last employment before the accident to him this ear was invariably left upon the same track, which was a long extension track, and the first track south of the main line track. This extension track was used during the night to shove cars in upon, and this would push the caboose-car further down the track. This was a matter of which plaintiff well knew, but he testifies that he did not feel afraid of any injury therefrom. On this particular night it appears that the brakes of the caboose-car were very firmly set, so that it was scarcely moved, if at all. The car that struck it stayed there, and was a car manifestly shoved in upon the track according to the usual custom and practice of the defendant. It may have been shoved in with more force than usual, or the caboose-car may have offered more resistance than usual. The other' persons were not injured in the slightest, and neither they nor the plaintiff thought the occurrence of sufficient importance to be examined for its cause at the time. None of them got up and went out of the car until morning.
The character of the hurt to plaintiff, if it was caused by this jar of his car, is somewhat remarkable. ■ He kept right on at work for the defendant the rest of the month of October, and slept in the car as usual. He reported the matter to no one save the conductor. There began the next day a swelling upon his neck, which kept growing until it was “ as large as the size of a hen’s egg.” The company’s physician came to see him four or five weeks after the accident. It does not appear that he consulted any physician before that time, and the physician of the defendant did not come at his solicitation, but was sent to examine him by the company. The injury according to his testimony and that of several physicians, at the time of the trial, showed a partial dislocation of his neck, and a general and permanent weakness of body as a probable result of such injury. If this condition is traceable to this accident, the injury must have been caused by the position in which the plaintiff was lying when the collision occurred, as it is evident that the jar was not such as would oi-dinarily have done such an injury to a person sleeping in the car.
But in law, under the undisputed circumstances, the plain tiff, knowing the practice and custom of the-defendant, and that such collisions were liable to take place thereby, and that it was a dangerous place to sleep in, in view of such practice of shoving cars upon the track and against this caboose-car, must be held to have accepted the risk of such collisions, and therefore has no cause of action on account of injuries received in consequence thereof. Mich. Central R. R. Co. v. Austin, 40 Mich. 247; Richards v. Rough, 53 Id. 212; McGinnis v. Bridge Co., 49 Id. 466; Swoboda v. Ward, 40 Id. 420; Lindstrand v. Lumber Co., 68 Id. 261.
The judgment of the lower court must be. affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
This is an application for the writ of mandamus to compel the respondent to vacate an order of the court quashing an information against one John P. O’Malley.
Complaint was made against O’Malley before a justice of the peace charging him with a criminal libel not enumerated in How. Stat. § 9315. O’Malley was bound over to the circuit court by the justice, and the relator filed the information here in question. The respondent moved to quash the information and for his discharge for the reasons—
1. That said court had no jurisdiction to try said offense, as it was, if an offense at all, one triable in justice’s court.
2. That no offense known to the laws of this State was charged in said information, as the necessary facts were not alleged to bring the said publication within the provision of the criminal libel statutes of this State.
Libels of the kind here complained of were indictable at the common law. Prior to the act of 1879, hereinafter referred to, the statute contained no express provision for the punishment of libel and slander. They were therefore punishable as misdemeanors at the common law, under How. Stat. § 9261, which reads as follows:
“Every person who shall be convicted of a misdemeanor, the punishment of which is not otherwise prescribed' by any statute, shall be punished by imprisonment in the county jail not more than one year, or by fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.”
In 1879 tbe Legislature passed “An act to provide a punishment for libel and slander.”' Act No. 192, Laws of 1879. This act provided that—
“Any person who shall falsely and maliciously, by word, writing, sign, or otherwise, accuse or impute to another the commission of any crime, felony, or misdemeanor, or any infamous or degrading act, or impute to any female a want of chastity, shall be deemed- guilty of a misdemeanor, and on conviction * * * shall be punished by a fine not exceeding one hundred dollars, or imprisonment * * * not exceeding ninety days, or both, * * * in the discretion of the court.”
It is insisted by the relator that the criminal matter alleged was not included within the statute, but was a common-law criminal libel, punishable under section 9261, above referred to. We think the ruling of the circuit judge was correct. It was the evident intention of the Legislature in enacting this law to exclude other cases of libel and slander known to the common law, but not -enumerated in the statute. The very title of the act shows this to be the intention. The cases not enumerated in the statute are those where one is, held up to contempt and ridicule, and possibly where one may be charged with having a loathsome disease. It certainly could not have been the intention of the Legislature to impose a light penalty for the graver offenses, and leave the heavier penalties to stand against the lighter offenses which were known to the common law.
The writ must be denied.
The other Justices concurred. | [
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] |
Long, J,
The bill was filed in this cause in the superior court of GrandJ Rapids, in chancery, by the complainant Sligh and 58 other residents of the city of Grand Rapids, to restrain the city of Grand Rapids and its officers from collecting assessments levied against the property of the complainants.
It appears that in 1886 the city authorities regraded .Ellsworth avenue from Bartlett street to East Fulton street, and the common council levied an assessment to pay the costs of said regrade upon a district which they deemed benefited by such regrade, which assessment was paid. In 1887 certain parties living on Ellsworth avenue, who had been assessed for benefits derived on account of said regrade, and who had paid their assessments, claimed damages to their property on account of such regrade, and filed their claims in the superior court of Grand Rapids, by virtue of section 2, tit. 6, of the charter ofc said city, as amended by Act No. 292, Local Acts of 1885, and Act No. 436, Local Acts of 1887, which provides that in all cases where the grade of any'street or alley has been established, and said street or alley has been graded by the proper authorities, and the grade is thereafter altered by the city, the owner of any lot or parcel of land who shall be injured by such alteration of said grade shall be entitled to compensation therefor. These acts also provide for proceedings in the superior court of Grand Bapids to ascertain the amount of compensation, to be awarded by a jury to be summoned in the cause in said court, who are empowered to hear, try, and determine such damages in one proceeding, and, when such damages are ascertained, the clerk of that court is to certify the same to the common council, whose duty it then is to define a district in the city which in their judgment is benefited by the improvement out of which such damages arose, and to cause the damages so ascertained to be assessed upon such district, in proportion, as nearly as may be, to the advantage or benefit to each lot. The assessment is to be made, and the amount levied, in the same manner as in the case of other improvements; and all of the provisions of the charter of the city relative to such assessments, and the collection thereof, and the sale, and redemption from sale, are to apply thereto. Such damages, when collected, are to be paid over to the persons to whom the same were awarded.
The claims so presented to the superior court came on to be heard, and were tried as one cause by one jury, and damages were awarded to the claimants in the aggregate of $2,880; whereupon the common council levied an assessment against a district they deemed benefited by such regrade, and are now attempting to collect said damages. The bill is filed to restrain the collection. Complainants claim that these assessments are void for the reasons—
1. That the law under which the parties obtained judgments against the city is unconstitutional.
2. That the judgments so obtained are void.
3. That the assessments are void.
Under the first claim, it is contended by counsel that the amendment of the charter of the city introduces matter foreign to the original object of the charter. The charter of Grand Eapids (Local Acts of 1877, p. 158) contained no provision giving parties damages on account of regrading a street. The charter was amended in 1881. Local Acts of 1881, p. 240. This amendment gave parties damages on account of the regrading of streets, and provided that such damages should be taken into consideration by the board of review and equalization at the time of making their assessment roll, and, if the damages exceeded the benefits derived, they should be collected as other taxes, and should be assessed upon all the taxable property of that particular ward. In 1883 the charter was again amended. Local Acts of 1883, p. 516. This amendment provided that the damages on account of any regrade of a street should be estimated by a jury of five freeholders, and that said damages should be assessed and collected in the same manner as other taxes on all the taxable property of the city. The charter was again amended in 1885. Local acts of 1885, p. 85. This amendment provided that the claimants should file their claims against the city in the superior court, and the city attorney should be notified, and it is made his duty to appear for the city; that the issue should be between the claimant or claimants jointly and the city; and that a jury of 12 freeholders should ascertain the damages, which should then be assessed by the common council upon a district deemed by the council benefited by such regrade. This amendment so enlarged section 2 of title d of the act that the Legislature in 1887 embodied the amendment of 1885 in seven new sections. Local Acts of 1887, p. 509. The act now stands as in the amendment of 1885, except that the seven new sections contain what was under the act of 1885 incorporated in section 2. It is claimed _ by counsel that these amendments have enlarged the original provisions of the charter, and that therefore they do not come within the title of the original charter of 1877; that the amendments have introduced new matter not embodied within the purposes indicated in the charter amended.
The act of 1877 is an act to revise the charter of the city of Grand Bapids, being amendatory of an act entitled “An act to incorporate the city of Grand Bapids,” approved April 2, 1850, as amended by the several acts amendatory thereof. The act of 1850 is an act to incorporate the city of Grand Bapids. The revision of 1877 defines the powers and duties of the common council, and gives them power to lay out and establish, open, make, and alter streets; and in the taking of property for such purposes a jury of 12 freeholders was to be summoned before the city court to assess the damages due to the-owners of the property taken. These damages were to be assessed upon the adjacent lots, or by general assessment. It is apparent from the reading of the charter and the various amendments that these amendments, adopted from time to time, are within the general purposes of the act of 1877, under which the city was incorporated. The subject-matter of title 0 of the charter, of which this amendment, and the other amendments of like character in previous years, form a part, relates to and makes provision for public improvements in grading streets, and changing and altering them. It provides the ways and means by which the cost of the work shall be raised. These amendments are germane to the general purpose of the act.
Under the second objection, counsel claim that the complainants in this cause were necessary parties to the proceedings in the superior court when the claims for damages were presented against the city for allowance, and that, not having had their day in court, they should in this proceeding be permitted to attack the claims, and show the proceedings there irregular and void. The stat ute under which the proceedings were had in the superior court provides for notice to the city, who is to defend the action; and whatever damages are awarded the council are to assess upon a district benefited by the improvement out of which the damages arose. This statute does not provide for any notice to the parties who are eventually to be assessed for the amount of the judgments obtained in those proceedings. The proceeding is based upon the theory that, in the regrade, parties whose premises lie adjacent to the street may have been damaged by the cutting down or raising of the grade, and for the recovery of such damages the proceeding is against the city, in. the first instance, but giving the council the power to assess the damages over to and collect from the lots benefited the amount of the damages so ascertained. These lots, if lying in the same district which was formed for assessments to pay the costs and expense of the grade, are again assessed for the damages. It is not to be supposed that the common council would fix and determine one district to pay the cost of regrade, being the property benefited thereby, and, when forming a district from property benefited to pay the damages, that other or different territory would be parceled out. It is the same district, and by this statute the property is again, assessed.
In the first instance, to pay the costs of the regrade, the board of equalization and review are to assess the-same upon all the owners or occupants of the lands and houses within the designated district, in proportion, as nearly as may be, to the advantages which each shall be deemed to acquire by the making of such improvements. In the assessment of the damages by the amendment of 1885 and subsequent amendment of 1887, the council are to ascertain, determine, and define a district which in' their judgment is benefited by such improvement out of which said damages arose, and cause the same to be assessed in proportion, as nearly as may be, to the benefit each lot or parcel is deemed to acquire by such improvement out of which the damages arose. That is, the parties benefited by the improvement have paid the cost of the improvement, and are then assessed and compelled to pay the damages arising therefrom; and this, without any notice of the claim or an opportunity to defend. If the provisions of the statute allowing the recovery of damages can be enforced against the city for raising or lowering the grade of the street in the making of such public improvements, — a point which we do not1 decide,— it would be most unjust to allow their recovery against parties who have not had an opportunity to be heard, and who have once been assessed for the costs of regrade. It is not like the costs of improvements to be assessed according to benefits, but it is an amount indefinite and ^uncertain, and not capable of ascertainment, except upon proper issues and proofs taken, which the parties who are ■eventually compelled to pay should have an opportunity to meet and defend against. It is true that the city attorney is to appear and defend the city; but the parties who are in the end to pay the damages are not heard. We know of no principle of law which will uphold such a proceeding. If the property of the complainants could be singled out and assessed for these awards of damages, the parties themselves should have had notice before they ■could be bound by the judgments, and have had an ■opportunity to defend when the claims were presented for allowance. The amendment of 1885 does not provide for this, and it must be held that the statute is wholly inoperative, and the parties sought to be charged with the payment of such damages cannot be held liable for the payment under these proceedings.
It is very doubtful indeed if the Legislature has author ity. to empower the common council to assess these lots for such damages after they have once paid, according to benefits, for the costs of the regrade.
The decree of the court below, dismissing complainants' bill, must be reversed, and a decree entered here in accordance with the prayer of the bill. Complainants will recover costs of both courts.
Champlin, C. J., Morse and Grant, JJ., concurred. Cahill, J., took no part in the decision. | [
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] |
Cahill, J.
This is an action of ejectment commenced December 21, 1887, in the circuit court for the county of St. Clair, to recover the S. E. of section 32, township 8 N., range 14 E., in that county. The plaintiff shows the following title:
1. Certified copy of a patent from United States to Ange Paldi, dated March 3, 1854.
2. The record of a deed from Angelo Paldi and Marie Ann H. Paldi to Justin L. Paldi, dated April 30, 1872, recorded July 25, 1872.
3. The record of a deed from Justin L. Paldi to the plaintiff, dated November 18, 1879, recorded November 21, 1879.
The plaintiff also put in evidence tending to show that Ange Paldi, to whom the patent ivas issued, was the same person who, with his wife, executed the deed to Justin L. Paldi, April 30, 1872, under the n'ame of Angelo Paldi; that he was an Italian by birth; that his real name was Angelo, but that he was sometimes known and called by the name of “Ange." It was also shown that after obtain ing his patent he went into actual possession of the land, and resided on it with his family for some years. Justin L. Paldi is a son of Angelo Paldi, and the plaintiff is the wife of Justin L. Defendant is a daughter of Angelo Paldi, and a sister of Justin L. The defendant claims title—
1. Under a tax deed made- by the Auditor General for the taxes of 1873 to Frank A. Dean.
2. By a quitclaim deed from Frank A. Dean to Marie Ann H. Paldi.
3. By adverse possession held by this Marie Ann H. Paldi in her life-time, and by defendant since her death.
4. By will of Marie Ann H. Paldi, by which the land was devised to defendant.
On the trial in the circuit, the circuit judge directed a verdict for the plaintiff, ujDon the ground that the plaintiff, having shown a clear title, was entitled to recover, unless such prima facie title was overthrown by the defendant; and that the defendant had failed to defeat plaintiff's title—
1. Because the tax title was invalid.
2. Because there was no evidence of such an exclusive and adverse occupation for the length of time required by the statute as to form a basis of title by prescription.
In this we think 'the circuit judge was right. The facts upon which defendant bases her title by adverse possession are as follows: For' some years pripr to 1872, Angelo Paldi, who located the land,, resided with his family upon it. In that year, for reasons which are not explained, and which are unimportant to this inquiry, he left his family and went to live in the state of New York, where it is claimed he -afterwards procured a divorce from his wife, 'and remarried. Before going away he made a deed of this land to his son Justin L. Paldi, in which his wife joined. After executing this deed, the wife, who was the mother of the grantee named in it, still remained with her family upon the farm, and continued to live there until her death, in 1886. During a part of the same time, commencing in July, 1872, Justin L. Paldi resided with his family in the same house with his mother and her family. The circumstances under which he resided there are in dispute.- He claims that he was there as owner, operating and running the farm. Defend, ant claims that he was a mere bparder. It is not important to determine this question. There is nothing in the evidence to show that, during the first few years after she joined with her husband in the deed to Justin L., Mrs. Paldi claimed to occupy the land in any other way than as in subordination to her grantee. It was reasonable and natural that she should be allowed by her son, after the desertion of her husband, to remain in possession of the old homestead. It is true that defendant herself testifies that her mother always claimed to own the farm from the time her husband left until her death, and that since that time defendant claimed to own it; but it nowhere appears that this claim was made to Justin, or that he knew that his mother, after joining in the deed of the farm to him, was claiming to hold in opposition thereto. The defendant testified as follows.
“ Q. Who worked the farm from your father’s leaving to your mother’? death?
“A. Well, mother and I, generally. I was the head, you know; only when Justin came there, he wanted to run things to suit himself, but still we took it in our hands to suit ourselves.
“ Q. What occupancy has Justin had of the farm since your father went away?
“A. I don’t know as he ever had any, with the exception of once in a while. He never had any occupancy of the farm.”
The defendant, Angeline, was herself one of the witnesses to the deed from Angelo and wife to Justin L. She and her mother must be presumed, therefore, to have known just what rights Justin claimed in the property, and yet she does not testify that any question was made to Justin about this deed, or of his rights under it, until some years afterwards. It was said by this Court in Bloomer v. Henderson, 8 Mich. 405, that—
“ If a party executes and delivers to another a solemn deed of conveyance of the land itself, and suffers that deed to go upon record, he says to all the world: ‘Whatever right I have, or may have claimed to have, in this land, I have conveyed to my grantee, and though I am yet in possession it is for a temporary purpose, without claim of right, and merely as a tenant at sufferance to' my grantee.5”
This doctrine was approved in Dawson v. Bank, 15 Mich. 489; Humphrey v. Hurd, 29 Id. 44; and Jeffery v. Hursh, 45 Id. 59. This presumption could .only be overthrown by ci2’cumstances tending to show a clear 2-enun-ciation of the rights of the grantor, brought home to the knowledge of the grantee, and of a subsequent exclusive, adverse possession under claim of superior right.
There is no evidence in the record that the right of the grantee, Justin L. Paldi, under' his deed, was at any time questioned by his mother, at least during the year and over that he lived with her on the farm in 1872 and 1873. There is evidence tending to show that in 1879 she accepted a life-lease from the plaintiff. It appears also that, in 1882, the defendant, together with all of her brothers, except Justin L., filed a bill in the St. .Clair circuit, in chancery, against Justin L. Paldi and the present plaintiff, setting out that the deed, under which they claim title from Angelo Paldi and wife, was a forgery; that Angelo Paldi continued to be the owner of the land up to and including the date of his death, in the year 1878; that the greater portion of said land was unimproved, and in a wild state, but the whole thereof was and is known as the “Paldi Homestead;” and that the first two descriptions (being the E. £ of the N. E. £ of section 32, and the W. £ of the N. W. £ of section 33) haye been, since the death of Angelo Paidi, in the possession of his widow and daughter, Angeline Paidi. But there was no allegation in the bill that the widow of Angelo Paidi or the present defendant was in the 'possession of the land in question in this suit. The bill alleged that their father was dead, and that complainants claimed this and other lands as his heirs-at law, subject to the right of dower of Marie Ann H. Paidi as his widow. Justin L. and Roxa E. Paidi filed their several answers to this bill, denying that the deed was a forgery, claiming that it was executed, acknowledged, and delivered for the consideration named therein of $5,000; that under it defendant Justin L. took possession of the entire of said premises on or about July 12, 1872, and has ever since lived thereon with his wife, Roxa. It is conceded that the proceedings so commenced by bill were discontinued in September, 1883, but for what reason does not appear.
Marie Añn H. Paidi, at her death, left a will devising all her estate to defendant, Angeline, who was named executrix. This will was admitted to probate. The defendant, as executrix, filed an inventory of the property that had come into her possession, in which she included the land in question under the following description: "S. E. ¼ of sec. 32, T. 8, R. 14 E., a tax title, $200.14.” The filing of the bill by defendant, and the return of the inventory of her mother’s estate, is relied on by plaintiff as evidence tending to show that the defendant has not always regarded the land as belonging to her ‘mother. We think the testimony tended legitimately to disprove her claim in this case that after her father left, in 1872, her mother claimed to own the land.
The tax deed under which defendant claimed was held to be invalid, but upon what ground the record does not disclose. The tax deed was invalid for the following reasons:
1. There was no valid assessment made by the supervisor, the assessment roll having been made out and certified to by a neighbor, as appears by the testimony of the supervisor, and the neighbor who made the roll, as follows: John D. Jones was sworn for the plaintiff, and testified that he was supervisor of Brockway township in 1873, and produced the assessment roll of that town for that year.
“ Q. Mr. Jones, will you state to the court and jury who made that assessment roll?
“A. I made a part of it, and John S. Duffie made a part of it at my request. Let me tell you how that happened: I had a drive over on Cass river, and I was elected supervisor, and I had to go and attend to my drive. I had some twenty-eight million feet of logs over there, and I went over there next day after election to drive my drive of logs from Saginaw, and the consequence was I didn’t get back again until the Saturday before the review. The review comes on the third Tuesday after the third Monday. I think it was Tuesday. Now, I went to Mr. Duffie as quick as I got home, and I supposed they had appointed another supervisor, but I found they hadn’t, so I went to Mr. Duffie and asked him if he wouldn’t take my year before roll and the roll that I had for that year and copy from the last-year roll all the names, and, as far as it was right, to carry them out, the value the same as they were on the old roll, not to change any of them, and I would go round and take up the deaths and births and the personal property. * * *
“ Q. Look at the certificate and see whose handwriting it is.
“ A. I think it is Mr. Duffie’s. I told him to do it.
“ Q. Whose handwriting is the signature?
“A. That is Mr. Duffie’s. I authorized him to do it for me, so as to get the rolls ready for the review.”
John S. Duffie testified that in 1873 he resided in the township of Brockway, and knew John D. Jones, supervisor.
“Q. Will you state how that assessment roll was made for the year 1873.
“ A. Mr. Jones was on a drive of logs on the Cass river, and he requested me 'to take the assessment roll for that town for 1872 and copy that, except such changes as I knew had taken place in the ownership of land, and where I knew there was no change' to keep the same personal property. We took the names from the old roll, leaving the value of real estate the same, and, where the changes took place in personalty, that was left out for Mr. Jones to fix, and the whole roll was copied in that way. He told me to go on and copy the whole of it, and prepare it for the review. I copied the names, descriptions, number of acres, value of real estate, and the greater part of the personal property. I attached this certificate to it so as to have it ready for Mr. Jones. I made it out and signed it.”
This is not what the law requires of a supervisor, charged with assessing property at its true cash value. The performance of this duty requires of him the exercise of his own best judgment. As was said in Woodman v. Auditor General, 52 Mich. 30:
“The listing of property [in an assessment roll] is clerical, but the ascertaining and determining its value is judicial, requiring the judgment of the supervisor under his oath of office, and cannot be dispensed with in making a valid assessment roll.”
In this case the supervisor authorized Mr. Duffie to copy the roll of the previous year so far as the real estate was concerned, making only such changes as were necessary by change of owners, and to make out and sign his certificate. These are duties which cannot be delegated by'the supervisor, but must be performed by him personally.
2. The supervisor’s certificate is not sufficient under How. Stat. § 1025, and the numerous decisions of this Court. In that part of the certificate in which he stated that he had estimated the same at what he believed to be the true cash value thereof, and not at the price it would sell for at a forced or auction sale, the certificate used the words “fixed or auction sale.” This may have been a clerical error, but great strictness has been insisted upon in all cases where the certificate of the supervisor has been under consideration. The form of it was amended from time to time by the Legislature with, the view to preventing the almost universal tendency to undervalue property by, the supervisors in the interest of their own localities as against others. We cannot say that the word “fixed” was intended by the supervisor to have the same meaning as the word “forced” used in the statute. Silsbee v. Stockle, 44 Mich. 566; Fuller v. Hannahs, Id. 578. In the latter case, the only thing omitted from the certificate were the words “as aforesaid” in that part of the certificate which stated, with reference to the personal property, “ that I have estimated the same at the true cash value, as aforesaid according to my best information and belief.”
3. There was not such an equalization of the rolls as the statute requires. The tax law in force when the taxes of 1873 were levied, required the supervisors to equalize the valuations of the real estate in the several townships and wards, pointed out the steps to be taken to that end, and required a record to be kept of the action taken. As has been frequently pointed out, this is an important step in tax proceedings. Upon it depends the amount of the State and county taxes that shall be apportioned to the several townships and wards of the county. If it is important to have a record, it is equally important that the record should be intelligible and certain as to its meaning, so that a tax-payer who chooses to examine it can Tcnow, and need not be obliged to guess, what action was taken. The records of the board for the year in question were so carelessly kept and' badly mixed that it is impossible to tell with certainty what action was taken on the subject of equalization. The record shows the following, commencing with page 83 of volume 3 of the supervisors' record:
“Committee on equalization submit the following report, and recommended its adoption as reported. Moved by Y. A. Saph, and supported by William Grace, that the report be accepted and adopted. Moved by G. S. Granger, and supported by J. A. McMartin, that the town of Port Huron be equalized at $90,000. Motion lost.''
Here the subject of equalization seems to have been di’opped, the next entry in the record being:
“Committee on criminal accounts, by Patrick Fox for committee, reported on sundry accounts, * * * and recommended their payment as reported.”
Then follows a page or more of resolutions relating to accounts and other matters entirely disconnected with the subject of equalization, after which appears the following:
“Moved by G. S. Granger, supported by G. L. Cornell, that G. F. Collins and B. O. Farrand constitute a committee to confer with the Board of State Auditors in reference to the Yohr matter, provided the bail of Mr. Yrohr pay the expenses of said committee. Lost, a majority of all the members voting against the same. [Then follows the following apparently irrelevant table:]
—The majority of all the members elect voting against it.
“Moved by Mr. McMartin, supported by G. S. Granger, that the Second ward of the city of St. Clair be equalized by the sum of $1,374.95. Lost, the majority of all the members elected voting against it.
“Moved by D. G. Finlayson, supported by James Demarest, that the township of Grant be equalized at $125,000. Lost, a majority of all' the members elected voting against it. The original motion was then carried, a majority of the members voting therefor.”
It is quite possible that “the original motion,” which it is said was then carried, a majority of the members voting .therefor, may have had some connection with the question of equalization; but it is equally possible that it did not. It is too uncertain to have any value as a public record.
At first I was of the opinion that defendant was entitled to her improvements made since her mother acquired the tax title in 1884. The objections to it as stated by plaintiff's counsel are:
1. That, as defendant claims that her mother was.in possession of the land in 1873, it was her duty to pay the taxes; and that she could not acquire a tax title based on a tax which she ought to have paid. But the plaintiff says her husband, Justin L. Paldi, was in possession in 1873, and she is allowed to recover on the theory that this was true. If the possession of plaintiff's grantor was good enough to hold the title, it was Ms duty to pay the taxes, it not appearing that there was any agreement between him and his tenant (his mother) that the latter should pay them.
2. That there is no evidence that Marie Ann H. Paldi made any different claim of title after she acquired the tax title. In 1884, she bought this outstanding tax title, and put her deed of record.
My brethren are of the opinion that this was not, standing alone, such an assertion of an independent, hostile title as would entitle her to improvements; that, having been in possession in subordination to the plaintiff, any claim of an adverse 'holding under the tax- title must have been expressly asserted and brought home to the plaintiff; and that the mere recording of her hostile title was not sufficient. In this view 1 concur.
The judgment must be affirmed, with costs.
The other Justices concurred.' | [
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] |
Grant, J.
Plaintiffs were partners in business inBinghamton, N. Y., under the firm name of the Binghampton Cigar Company. In November, 1889, Mr. Imhoff, one of the plaintiffs, went to Owosso, Mich., and entered into an arrangement with the Owosso Cigar Company, a copartnership composed of a Mr. Chase and a Mr. Totten, by which they agreed to send and deliver to them cigars. Mr. Imhoff testifies that plaintiffs agreed to furnish Chase and Totten all the goods they wanted; the title thereto to be retained in plaintiffs until paid for or sold, and, when sold, the accounts to belong to them. This was denied by defendant's witnesses.
The defendant, Burhans, had indorsed for Chase and Totten for about $6,000. Plaintiffs shipped goods to Chase and Totten, and, shortly after, they turned over all their stock, including the goods furnished by plaintiffs, to defendant, Burhans, and gave him a bill of sale thereof, which defendant claims was a bona fide purchase in consideration of his indorsements. Defendant took possession of the goods. Plaintiffs demanded of him possession of the goods then in the stock, and which they had furnished to Chase and Totten. Defendant refused possession, and thereupon plaintiffs brought this suit in replevin, and recovered possession. The trial resulted in a verdict and judgment for plaintiffs.
The case was submitted to the jury upon two theories:
1. That plaintiffs had not parted with the title to the goods, that they were not sold to defendant in the due course of trade, and they were entitled to recover possession.
2. That Chase and Totten made false and fraudulent representations to plaintiffs as to their financial standing, and that therefore plaintiffs might rescind the sale and recover the goods.
It is impossible to tell from the record upon which theory the verdict was rendered. It is very doubtful whether the representations alleged to have been made were in fact or in law fraudulent; but it is unnecessary to determine that question. All the evidence in regard to such representations, or the financial condition of the firm, was immaterial. Mr. Imhoff, who made the arrangement on behalf of plaintiffs, testified that he—
“ Did not rely upon these representations, but upon his contract; that it was immaterial to plaintiffs what their financial condition was; that the statement made by Chase to him that they could clean up $3,000 to $3,500 did not deceive him, and that he did not rely upon it.”
The court therefore erred in not striking out all evidence of these representations upon motion of the defendant's attorneys. That plaintiffs did not rely upon these alleged representations is evident from the further fact that, when Mr. Imhoff demanded the goods of defendant, he only claimed them under the contract. It is therer fore unnecessary to discuss separately any of the 43 assignments of error.
It is, however, proper to note that the assignment of error upon the charge of the judge is too general. It is that the judge erred in giving that portion of his charge to the jury commencing, “I give you these requests on the part of the plaintiffs,'' and ending with, “ I give you these- requests on the part of the defendant.” This involved 12 requests of the plaintiffs, the most of which were correct propositions of law. •
The sole issue for the jury tyas whether or not the plaintiffs and Totten and Chase made a contract by which the title of the goods was to remain in the plaintiffs until they were paid for, or sold in the due course of trade. The defendant did not buy them in the due course of trade; and therefore, if such a contract was made, the plaintiffs were entitled to recover. Such a contract is valid under the repeated decisions of this Court, and we are not concerned with the decisions of other courts upon the subject. Those who purchased in the usual course of trade would take a good title. Those who did not purchase in the usual course of trade could not rely upon the bare possession of their vendor as conclusive evidence of title.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred.
See Dewes Brewery Co. v. Merritt, 82 Mich. 202, and cases there cited. | [
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] |
Long, J.
The complainant, as survivor or herself and 'William Byrne, brings this suit against defendant, as executor of the last will and testament of Thomas Byrne, deceased, to recover the sum of $2,429.34, part of a legacy of $3,500 left by said will to herself and her husband, William Byrne, now deceased. The sum in dispute was paid by the executor to satisfy a mortgage upon a farm devised by the same will to the said legatees.
The will of Thomas Byrne, under which this controversy arises, was made on January 17, 1882, and contained the following provisions:
“Second. I give and devise to my father and mother, William Byrne and Ann Byrne, of the town of Grattan, in said county of Kent, the farm on which they now reside, situate in said town of Grattan, and described as follows, viz.: The south-east quarter of the south-east quarter, and lot number three (3), all on section twenty-nine (29), in town eight (8) north, of range nine (9) west; to have and to hold the same as joint tenants, and not as tenants in common, in fee-simple; and, if either my father or mother shall die before I do, I then give and devise said farm to my surviving parent, his or her heirs or assigns, forever.
“ Third. I also give and bequeath to my said father and mother all the stock, utensils, horses, and personal property situate on said farm, and in use in connection therewith; and, if my father or mother shall die before I do, I then give and bequeath said stock; utensils, horses, and personal property to my surviving parent.
“Fourth. I also give and bequeath to my said father and mother the sum of thirty-five hundred dollars, and I direct my executor to pay the sum over to them out of my life insurance money payable to my executor as soon as collected; and, if either my father or mother shall die before I do, I then give and bequeath said sum of thirty-five hundred dollars to my surviving parent.”
Thomas Byrne died a few days after this will was made. Mr. Hume, the executor named in the will., accepted the trust, and qualified and entered upon its execution in March, 1882. The land described in and devised by the second paragraph of the will was formerly owned by Michael Byrne, a brother, of Thomas. On February 4, 1875, he borrowed of Aaron Brewer, $2,200, to be paid in five years, with interest at 10 per cent. Michael gave his note and a mortgage on the farm to secure the debt. August 26, 1880, Michael Byrne and wife conveyed the land to Thomas Byrne by quitclaim deed. ■ The deed does not mention the mortgage.
April 17, 1882, Mr. Hume, the executor, had received the insurance money. On that day he wrote to William and Ann Byrne the following letter:
“I have received the insurance money, out of which the legacy left you by your son Thomas was to be paid. As you are probably aware, it was his intention to have the mortgage upon the farm paid up; and if you will sign the inclosed order, and return the same to me, I will get the matter all straightened up. I inclose a receipt for one thousand dollars, and an order on First National Bank, Grand Rapids, and have arranged with the bank to pay you one thousand dollars on presentation of receipt and order properly signed. Of course, if you go for the money yourself, you need not sign or use the order. Sign all the spaces left for dates, names, etc.
“ Yours truly,
“ George Hume, Executor."
He had left for these parties $1,000 at the bank, as stated in the letter. With the letter he inclosed a receipt for the money, to be signed by’ them and returned; also an order to pay the mortgage, to be signed. Mr. Hume then lived in Muskegon; the other parties in Grattan, Kent county. The receipt is for $1,000 on account of legacy. The order to pay the mortgage is as follows:
“ Grattan, Mich., May 5, 1882.
“Mr. Geo. Hume,
“Executor of the Estate of Thomas Byrne,
“ M-uskegon, Mich.:
“You will please pay out of the legacy left us by Thomas Byrne, and have discharged, a certain mortgage on the south-east £ of the S. E. and lot No. 3, section 29, town 8 north, range 9 W., given by Michael Byrne to Aaron Brewer, and then pay over to us the balance of said legacy that may be left in your hands.
“William Byrne.
“Ann Byrne,
' “ Pr. A. Byrne.”
After receiving the order, the executor, on May 15, 1882, paid Mr. Brewer the full amount remaining due on the mortgage, $2,429.34. The mortgage was discharged' of record. The executor took up the note and mortgage, and returned them to William and Ann Byrne. On May 22 following, the executor sent his check of $67.66 to them, as the balance due on the legacy, inclosed in the following letter:
“I inclose my check on First Nat. Bank, Grand Rapids, for $67.66, in payment of balance due you on acc. of legacy left you by your son Thomas. Please sign the inclosed receipt, and return same to me. I inclose herewith Michael Byrne note and mortgage. The discharge is now in the office of the register of deeds, and will be sent you as soon as recorded.
“ Truly yours,
“George Hume, Ex’r.”
They signed and returned the receipt to him. It is as follows:
“ Received of George Hume, executor, sixty-seven 66-100 dollars, being balance due of $3,500 legacy left us by our son, Thomas Byrne.
“Ann X Byrne.
“William Byrne.”
On March 10, 1883, the executor filed in the probate court for Kent county his first report and account. He gave himself credit for the amount of $3,500 as paid to William and Ann Byrne as legacy under the will, and the Grattan farm was accounted for at $4,800. An order was made and duly published appointing a time for hear ing the account, and a hearing was had, the account being duly allowed. A second and third account was filed by the executor, and notice published; and on the hearing of the third account so presented, John Byrne appeared by Mr. Eggleston, acting as his attorney, and objected to the allowance of the $3,500 as paid to William and Ann Byrne in full of said legacy. The account was allowed, however, and no appeal taken.
On April 14, 1885, Ann Byrne, the complainant in this suit, filed a petition in the probate court praying that the balance of the legacy be paid to her. That petition stated, substantially, the facts now set up in the present bill, and prayed for the same relief. A citation to the executor was issued, and he appeared, and filed his answer. A hearing was had in the probate court, and the petition was dismissed. No appeal was. taken from that order. The defense to the present bill is:
1. That the matter in controversy here is res judicata, under orders and decrees of the probate court—
a — Dismissing the petition filed by complainant praying for the payment to her of the same money upon the same grounds.
I — Allowing the executor’s first and third accounts, which covered the matters in dispute in this suit.
2. The legatees gave to the executor a written order to pay the mortgage out of the legacy, and they were thereby legally chargeable with the moneys paid on the mortgage.
On the hearing in the court below the complainant’s bill was dismissed. Complainant appeals. There has been no final settlement of the estate, and a large amount of the funds of the estate yet remains in the hands of the executor. By the terms of the will the executor is to carry on the partnership and other business in which the testator was engaged, and the estate is to be rvound up and settled within six years after the testator’s death. The estate was inventoried at the sum of $471,000.
Tbe settlement of tbe accounts of tbe executor, from time to time, in the probate court, though known and assented to by the complainant, could not estop her from setting up her claim to this legacy, nor could the order given for the payment of the mortgage out of the legacy.
Considerable testimony was taken in the court below as to the physical and mental condition of the complainant and her husband at the time these papers were executed, and the circumstances under which the signatures of the parties were obtained. It is claimed on the part of the complainant that William Byrne, at the time these transactions occurred, was not of sufficient mental capacity to transact business intelligently, and that Mrs. Byrne could neither read nor write, and did not understand that she was giving up the legacy to pay the mortgage. These were disputed questions of fact on the hearing, and upon which some considerable testimony was-given;-but just what question was the decisive one in the opinion of the trial court does not appear from the record before us. It is not shown whether the «trial court concluded that the parties were estopped from now making the claim to the legacy, or that, the petition having been heard in the probate court upon the same matter and for the same relief, it was res judicata.
The executor held these funds-for distribution to the parties to whom the testator intended by the will to give them. If the executor was at all uncertain whether the testator meant to have the mortgage paid out of this legacy, his plain duty was to have filed his bill for a construction of the will. If the executor refused to pay the legacy, and there was a contention as to the true intent and meaning of the will, a court of equity should have been appealed to for a settlement of that question. The fact that the executor has paid the mortgage out of the legacy, under the circumstances stated upon this record, ought not to change the situation of the parties or their rights, though it may have been paid by the consent of the complainant and her husband. If it was the intent of the testator that the executor should pay and discharge the mortgage, and that his father and mother should have the farm disincumbered of the .mortgage, and, in addition, should have the full amount of the legacy, then, the executor in the payment and discharge of the mortgage has done no more' than he was legally bound to do, and what the court having jurisdiction of the matter should have compelled him to do. He had the funds of the estate still in his hands, sufficient to have his account adjusted without personal loss to himself, and would be put in no different position by the fact of the payment of any of the legacy than if it had been paid by any other funds. It was a question, pure and simple, between the estate and Ann Byrne, and must have depended upon the construction to be given to the will. The only guide in determining that question is, what is the intention of the testator? If this can be ascertained from the terms of the will, it must be followed.
A will is said to be a declaration of a man’s mind as to the manner in which he would have his property or estate disposed of after his death. The parts of the will important to this question have been set out. By the second clause he gives his parents the farm to hold as joint tenants, and not as tenants in common; and he is particular to state that the survivor should take the whole. It would appear from this clause, and the circumstances in which his parents were placed, that he intended this for the home of his aged and infirm parents, and to put it in such form that no one could acquire the separate rights or estate of either without the joint act of both. He, by the third clause, gave them all the personal property on the farm, and the survivor was to take that. By the fourth clause he bequeathed to them the legacy of $3,500 out of his life insurance money, and directs its immediate payment to them'by the executor as soon as collected, and he provides carefully in this clause that the survivor of them shall have this sum. Taking the will as a whole, in view of. the large estate possessed by the testator, and his evident desire to make a home for these old people, it cannot be said that he intended to have this large mortgage upon the farm which they were to possess and enjoy, and where the survivor was to live after the death of the other, or to have and control, and compel them to pay it, or, in default, to lose the farm, and be turned out upon the world. If the legacy was to be set aside to pay it, he has made no such direction, but, on the contrary, has directed its payment immediately over to his parents. No one, in reading this will, considering the situation of the parents, their age and infirmities, and the estate possessed by the son, and his evident desire to preserve a home for them, can consistently claim that it was the intent of the testator that the mortgage should either be left upon the farm, and eventually foreclosed, and his parents turned out of a home, or that the legacy should be used in its payment and discharge after coming into the hands of the_parents. It was the plain intent of the testator that his executor should pay and discharge this mortgage the same as other debts, and preserve the home for these aged people, and to pay this legacy over as soon as collected. In paying the mortgage, he has discharged a legal duty.
Had the question been presented to us as one upon which we had now the power of direction, we should unhesitatingly hold that i't was the duty of the executor to pay over to the complainant the balance of the legacy. But it is her misfortune that she did not appeal from the order of the probate court. There, a petition was filed setting out, substantially, what is set out in this bill, and the probate court ruled the construction of the will against her. From this decree denying her rights she has not appealed. Under our former ruling, we have settled the doctrine in this State that the probate courts' have the jurisdiction in the settlement of estates to construe wills. Glover v. Reid, 80 Mich. 228, and cases there cited. This jurisdiction is given under How. Stat. § 5964. It is true that the cases cited arose under appeals from probate courts; but the doctrine laid down in those cases clearly recognized the jurisdiction conferred by the statute. The decree of the probate court must therefore be held as determining the construction of the will, and res judicata to the present bill.
The decree of the court below must be affirmed, with the costs to be paid out of the estate.
The other Justices concurred. | [
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Per Curiam.
Defendant City of Detroit appeals from a December 12, 1988, judgment entered on a jury verdict in favor of plaintiffs for $2,100,000 and an April 19, 1989, circuit court order granting plaintiffs injunctive relief in this handicappers’ civil rights suit. We reverse.
Plaintiffs filed the instant suit requesting declaratory relief, damages and injunctive relief pursuant to the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. Plaintiffs claimed defendants denied them the full and equal enjoyment of the defendant city’s public transportation system due to defendant city’s failure to purchase and maintain wheelchair lifts in city buses. In particular plaintiffs claimed defendants denied them full and equal enjoyment of a public service in violation of § 302 of the act. The trial court granted plaintiffs’ motion for certification of a class action and the parties agreed the issues of liability and injunctive relief would be tried simultaneously with the issue of damages for twenty members of the class. The trial court was the factfinder on the issue of injunctive relief while the jury acted in said capacity on the liability and damages issues. Following a lengthy trial, the jury returned a verdict finding defendants Detroit Transportation Department and City of Detroit liable and awarding eighteen plaintiffs various damages totalling $2,100,000. Thereafter, after hearing additional testimony and argument, the court granted a modified version of the injunctive relief requested by plaintiffs.
Defendant city raises several issues on appeal, claiming foremost that plaintiffs’ handicaps are related to their ability to utilize the buses and thus are not covered under the act. Defendant additionally contends that, if the act is applicable, defendant’s satisfaction of federal civil rights laws satisfies the Michigan statute’s accommodations standards, that various evidentiary and instructional errors occurred at trial and that the jury award of damages was excessive.
We address only one issue as we agree with defendant and find plaintiffs’ handicaps are not compensable under the act.
Plaintiffs claimed a violation of § 302 (art 3) of the mhcra, which provides in pertinent part:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of . . . accommodations of a place of public accommodation or public service because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the . . . services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids. [MCL 37.1302; MSA 3.550(302).]
Section 103 defines the term "handicap”:
(b) "Handicap” means a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic:
(ii) For purposes of article 3, is unrelated to the individual’s ability to utilize and benefit from a place of public accommodation or public service. [MCL 37.1103; MSA 3.550(103).]
Prior to application of § 302, a plaintiff must show the existence of a handicap consistent with the definition thereof contained in § 103. Thus here, plaintiffs must demonstrate that their handicaps are unrelated to their ability to utilize and benefit from defendant’s bus service. We do not believe plaintiffs can do so. The very nature of the handicaps asserted, the use of wheelchairs, does more than relate to plaintiffs’ ability to utilize the buses. In fact, it prevents plaintiffs from using the buses, the problem sought to be remedied by this lawsuit. Although we believe the mainstreaming of wheelchair-bound persons to be a legitimate and commendable goal, where public transportation is concerned under the facts in this case the mhcra is not the proper act to implement that goal. We also note that § 302, the portion of the act under which plaintiffs sue, likewise contains an "unrelatedness” requirement.
Thus, as the plaintiffs’ status as wheelchair-bound persons unable to utilize defendant’s bus service does not constitute a handicap within the meaning of the act, the monetary damages and injunctive relief granted pursuant to the act must be reversed.
Reversed. | [
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Wahls, J.
On August 7, 1989, defendant pled guilty in Oakland Circuit Court to the charges of delivery of less than fifty grams of a mixture containing cocaine and delivery of 50 grams or more, but less than 225 grams of a mixture containing cocaine, MCL 333.7401(2)(a)(iii) and (iv); MSA 14.15(7401)(2)(a)(iii) and (iv). On September 5, 1989, defendant was sentenced to a term of one to twenty years on his conviction of delivery of less than fifty grams of a mixture containing cocaine, and to a term of 2 Vi to 20 years on his conviction of delivery of fifty grams or more of a mixture containing cocaine. The prosecutor appeals as of right claiming that the sentencing court abused its discretion when it sentenced defendant to a minimum term of 2 Vi years on his conviction of delivery of fifty grams or more of a mixture containing cocaine, because there were no substantial and compelling reasons for departing downward from the minimum term of five years prescribed by the Legislature, 1987 PA 275, MCL 333.7401(2)(a)(iii) and (4); MSA 14.15(7401)(2)(a)(iii) and (4).
The record reveals that officers of the Oakland County Narcotics Enforcement Team were conducting an investigation into illegal drug sales when their investigation focused on David Dunaway in December, 1988. Eventually, an undercover officer, Deputy Walter Blackmer, contacted Dunaway in order to purchase an ounce of cocaine. On December 16, 1988, Dunaway told Blackmer that the sale of an ounce of cocaine for $1,100 dollars had been arranged through Dunaway’s supplier. As it turned out, Dunaway’s supplier was defendant. Blackmer and Dunaway met defendant later that day in the parking lot of a party store. Defendant then sold the cocaine to Blackmer through Dunaway, who was acting as an intermediary. Five days later on December 21, 1988, Dunaway arranged the sale of three ounces of cocaine for $3,000. As before, defendant sold the cocaine to Blackmer through Dunaway. Defendant and Dunaway were then arrested, and charges were filed against them for both drug transactions.
Following a joint preliminary examination on January 3, 1989, defendant and Dunaway were bound over for trial on charges of delivery of less than fifty grams of a mixture containing cocaine, and delivery of fifty grams or more of a mixture containing cocaine. Defendant ultimately pled guilty to the charges. Apparently, Dunaway also pled guilty to the charges because, as reported at defendant’s sentencing, Dunaway was sentenced to a term of three to twenty years on his conviction of delivery of fifty grams or more of a mixture containing cocaine.
As indicated above, § 7401(4) provides that the sentencing court "may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so.” At defendant’s sentencing, the court found that "there are some substantial and compelling reasons to deviate” from the minimum sentence of five years. The reasons specifically enumerated by the court were defendant’s age of twenty-three years, defendant had no prior record, "these appear to be isolated incidences [sic] and it’s just over the fifty grams on the one charge,” and "the co-defendant, Mr. Dunaway, did receive a sentence from Judge Schnelz with a minimum term of three years.” The court also stated that it was "[t]aking into consideration everything that has been presented.” Among the reasons presented by defendant were that defendant had a four-month-old daughter and was engaged to be married, defendant was a high school graduate, and, since his arrest, defendant had obtained a builder’s license and started a carpentry company that employed three full-time workers. Further, defendant expressed "great remorse” and "didn’t realize the consequences of his actions.”
The scope of the sentencing court’s discretion under § 7401(4) to depart from the minimum sentences prescribed in §§ 7401(2)(a)(ii)-(iv), and, thus, the issue of what constitutes substantial and compelling reasons for departure, was first addressed by this Court in People v Downey, 183 Mich App 405; 454 NW2d 235 (1990). After careful analysis of § 7401, this Court in Downey, supra, p 416, concluded:
[T]he Legislature intended to give trial courts discretion to depart from the presumptively mandatory sentences only in exceptional cases. The scope of a sentencing court’s discretion is thus narrow, the factors used in departing must be objective and must be of such significance that the statutory sentence is clearly inappropriate to the offender. [Emphasis added.]
Earlier in Downey, supra, p 414, after noting the four sentencing criteria set forth in People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), this Court stated that the presumptive sentencing scheme of § 7401
reflects the Legislature’s, and thus society’s, determination that the length of the sentences contained in the statute are necessary to discipline the offender, to protect society and to deter others from committing drug offenses.
This fact must remain foremost among the sentencing court’s considerations when determining whether the presumptive minimum sentence is "clearly inappropriate.” Thus, as this Court in Downey, supra, p 416, concluded:
The trial court must keep in mind that the Legislature has declared that the mandatory minimum sentence is an appropriate sentence. The trial court must begin its analysis from that perspective.
We also begin our analysis from that perspective, and, therefore, "[w]e review the trial court’s deci sion to impose an exceptional sentence for an abuse of the narrowly defined discretion which it possesses.” Downey, supra, p 416.
After careful consideration of the entire record in this case, we conclude that none of the reasons mentioned by the trial court or presented by defendant, either alone or in combination with the others, is a substantial and compelling reason for finding that the minimum sentence was clearly inappropriate to this defendant. Defendant, we are sure, was fully aware of the consequences of being arrested for selling drugs. He simply did not give those consequences the weight they deserved when considering the benefits of selling drugs. Moreover, defendant’s protestations of remorse and his actions following his arrest, absent other exceptional circumstances, are not the substantial and compelling reasons required by the statute. Downey, supra, pp 415-416.
There is no objective and verifiable evidence in the record supporting the court’s finding that the instant crimes "appear to be isolated” incidents. The sentencing court had no way of knowing whether they were isolated, and, in our opinion, the evidence is to the contrary. Regardless, what appears to be true is simply not substantial. We emphasize that the factors relied on by the sentencing court in these cases must be objective and verifiable. Insubstantial factors must not be permitted to undermine the Legislature’s determination of the minimally appropriate response to the crime committed. See Downey, supra, pp 413-414; People v Krause, 185 Mich App 353, 357-358; 460 NW2d 900 (1990).
The remaining factors expressly or impliedly relied on by the sentencing court are objective and verifiable. However, as previously stated, they are not substantial and compelling, either alone or in combination with the other factors.
Defendant’s age of twenty-three years is not exceptional. Nor is the fact that defendant is engaged to be married. Nor is the fact that defendant is a high school graduate. Nor, under the circumstances of this case, is the fact that defendant does not have a prior record. Cf. Downey, supra, pp 418-419 (discussion of defendants Pointer and Luna). The fact that codefendant Dunaway received a minimum sentence of three years is entirely irrelevant, especially considering that the issue is whether the presumptive minimum sentence is clearly inappropriate to this offender. See Downey, supra, pp 413-414. Regarding the claim that the quantity of cocaine sold in this case was "just over the fifty grams,” we simply point out that the quantity (over seventy-five grams) was sufficient to support the conviction, and, thus, sufficient to impose the presumptive minimum sentence.
It is unfortunate that defendant’s daughter will be without a father for at least the first five years of her life. However, we are not compelled by that consideration to affirm defendant’s sentence for a number of reasons. Although it may be small consolation to those immediately affected by defendant’s imprisonment, we are convinced that, absent exceptional circumstances, it is for the child’s protection, as well as society’s, that such harsh discipline must be imposed on present offenders so that future offenses may be deterred. Thus, we reverse defendant’s sentence and remand this case to the sentencing court with instructions to the sentencing court on remand to impose a minimum sentence of at least five years as prescribed in the statute, 1987 PA 275, MCL 333.7401; MSA 14.15(7401).
Reversed and remanded. | [
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Michael J. Kelly, J.
Plaintiff appeals by leave granted an order of the Workers’ Compensation Appeal Board awarding him partial disability benefits but denying his claim for permanent and total disability benefits. We affirm.
Plaintiff first claims on appeal that the wcab erred by excluding the testimony of Richard Humanic, a rehabilitation counselor who had been qualified as an expert. Plaintiff further asserts that the case should be remanded to the wcab because the board failed to reach a true majority opinion regarding the counselor’s testimony.
We disagree with plaintiff that the board did not arrive at a majority concerning the admissibility of the counselor’s testimony. Two board members clearly agreed to exclude the testimony, albeit for different reasons. The fact that the two members disagreed on the basis for excluding the evidence is inconsequential since the evidence was properly disregarded, as will be discussed below, and since the findings of fact and conclusions of law were adopted by a majority of the board. See Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978).
It is a general rule of evidence that the testimony of an expert may be admitted if the court determines that the specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. See MRE 702; 100 CJS, Workmen’s Compensation, § 525, pp 511-514. Here, the counselor testified that plaintiff would be unable to secure reasonable employment because of limited use of his lower extremities. This conclusion was based primarily upon the counselor’s review of medical reports made by doctors who had examined plaintiff. The counselor’s interpretation of the medical reports and conclusions regarding plaintiff’s degree of disability did not assist the trier of fact because the wcab can, and indeed must, independently review the evidence, especially the medical testimony, and draw its own conclusions concerning whether a claimant is totally and permanently disabled under the act. See generally In re Skulina Estate, 168 Mich App 704; 425 NW2d 135 (1988). The counselor’s testimony did not assist the board in understanding the evidence or in determining a fact the board could not have determined for itself. The board did not err by failing to consider the evidence.
Next, plaintiff challenges the wcab’s application of legal standards and findings of fact. We find no error.
This Court’s review in workers’ compensation cases is limited. The wcab’s findings of fact are conclusive and may not be set aside if supported by record evidence, absent a showing of fraud. The board’s decision may be reversed, however, if the board operated within the wrong legal framework or if it based its decision on erroneous legal reasoning. Juneac v ITT Hancock Industries, 181 Mich App 636, 639; 450 NW2d 22 (1989), lv den 434 Mich 900 (1990).
Our review of the record reveals that the board considered the proper legal standards in evaluating plaintiff’s claim that he suffered a permanent and total loss of industrial use of both legs. Turning to the board’s factual findings, we conclude that they are supported by competent evidence. The board weighed most heavily the testimony of defendants’ experts who testified that plaintiff was able to secure reasonable employment. The board discounted to some degree the testimony of plaintiff’s expert due to the manner of his testimony and because of a lack of any basis in physical findings supporting the expert’s opinions. It is for the wcab to pass on the credibility of witnesses and to draw inferences from the facts which it finds established. Thomas v Chrysler Corp, 164 Mich App 549, 557; 418 NW2d 96 (1987), lv den 429 Mich 881 (1987). Having found no evidence of fraud and that the board’s findings are supported by the record, we must accept the board’s finding that plaintiff is not permanently and totally disabled.
Affirmed. | [
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Wahls, J.
On November 13, 1987, an Oakland Circuit Court jury convicted defendant of two counts of armed robbery, MCL 750.529; MSA 28.797. On November 30, 1987, defendant was sentenced to IV2 to 20 years on each count. Defendant appeals as of right from his convictions and sentences. We affirm.
Complainants Anthony and Frank Capizzi testified that on January 25, 1986, they were robbed of approximately $300, two gold necklaces, and a car at gunpoint by a man who identified himself as "Larry.” The Capizzis identified defendant as that man. Each Capizzi had opportunities to view defendant from close range during the robbery which lasted approximately twenty minutes.
1
A
Only one of defendant’s claims of trial error merits extended discussion. Defendant claims that the trial court abused its discretion when it admitted third-party testimony by police officers concerning the Capizzis’ identification of defendant at the photographic showup and at the corporeal lineup.
We agree with decisions of this Court which have held that MRE 801(d)(1) allows a third party to testify concerning an identification of a defendant at a showup or lineup. See People v Beam, 125 Mich App 289; 335 NW2d 684 (1983), lv den 418 Mich 858 (1983); People v Turner, 116 Mich App 421; 323 NW2d 425 (1982); see also People v Michael, 181 Mich App 236, 244-245; 448 NW2d 786 (1989) (Gribbs, P.J., concurring). MRE 801(d)(1) excludes from the definition of hearsay a "statement ... of identification of a person made after perceiving him.” We acknowledge that testimony relating such a statement otherwise would be inadmissible because it is "classic hearsay testimony.” Michael, supra, p 241; see People v Sanford, 402 Mich 460, 497; 265 NW2d 1 (1978) (opinion by Ryan, J.), citing People v Poe, 388 Mich 611; 202 NW2d 320 (1972). Nonetheless, as just stated, MRE 801(d)(1) excludes such a statement from the hearsay rule, MRE 802, and does not limit the exclusion to testimony by the declarant himself.
The only condition in the exclusion requires that "[t]he declarant testifies at the trial . . . and is subject to cross-examination concerning the statement,” MRE 801(d)(1). Sanford, supra, pp 497-498 (opinion by Ryan, J.). Obviously, if only the declarant was permitted under the rule to testify to his statement of identification, then he would already be testifying and subject to cross-examination concerning the statement. The condition is, however, significant because it honors defendant’s constitutional right of confrontation of the witness-declar ant in two ways. US Const, Am VI; Const 1963, art 1, §20; but cf. Sanford, supra, p 498 (opinion by Kavanagh, C.J.). First, it requires the prosecutor to produce and call the declarant at trial or forego presenting testimony relating the declarant’s, statement. Second, it supersedes the trial court’s discretion under MRE 611(b) to "limit cross-examination with respect to matters not testified to on direct examination.” In other words, assuming a scenario where the prosecutor produces and calls the declarant, but does not examine the declarant regarding the statement, the trial court would have no authority to preclude confrontation of the declarant concerning the statement on the ground that the issue was not raised on direct. In this case, the Capizzis testified at trial and were subject to cross-examination.
Although we agree that MRE 801(d)(1) "implicitly acknowledges . . . that the hearsay character and cumulative effect of the testimony of a third person to an out-of-court identification, as well as that given by the identifier himself, is not so inherently prejudicial that it must necessarily be excluded in all cases,” Sanford, supra, p 497 (opinion by Ryan, J.), we believe that the rule does not foreclose the possibility that, under the circumstances of a particular case, third-party testimony may be excluded as unduly prejudicial under MRE 403. Applying that standard in this case, we find that the trial court did not abuse its discretion in admitting the third-party testimony.
B
Defendant’s remaining claims of trial error merit only summary discussion.
In light of the totality of the circumstances surrounding the pretrial identification procedures, we find that the procedures were not so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable misidentification constituting a denial of due process of law, and, further, we find clear and convincing evidence that the Capizzis’ trial testimony identifying defendant had a basis independent of the allegedly tainted pretrial corporeal lineup. See People v Kachar, 400 Mich 78, 91, 95-97; 252 NW2d 807 (1977); People v Lee, 391 Mich 618, 626; 218 NW2d 655 (1974); People v Anderson, 389 Mich 155, 168-169; 205 NW2d 461 (1973). Due to our resolution of this issue and the previous issue, we reject defendant’s additional claims related to the admission of identification testimony at the preliminary examination and at trial.
Assuming it was error for the trial court to admit into evidence the photograph of defendant used in the prearrest photographic showup, we will not reverse absent manifest injustice because defendant did not object. MRE 103(a)(1) and (d); People v McConnell, 124 Mich App 672, 679; 335 NW2d 226 (1983). Considering the overwhelming evidence against defendant, there is no manifest injustice in this case.
Defendant’s constitutional right to confront the witnesses against him, US Const, Am VI; Const 1963, art 1, § 20, was not impermissibly compromised by the admission of the preliminary examination testimony of a witness who did not appear and testify at defendant’s trial. It was defendant who ultimately had the testimony admitted. Defendant may not "assign error on appeal to something which his own counsel deemed proper at trial.” People v Roberson, 167 Mich App 501, 517; 423 NW2d 245 (1988), lv den 431 Mich 874 (1988).
ii
In defendant’s original brief on appeal, defendant claimed that the sentencing court failed to sufficiently articulate its reasons for the sentences it imposed. Pursuant to this Court’s order, defendant was resentenced at which time the sentencing court stated that it was sentencing defendant within the guidelines to terms of IV2 to 20 years. Since the court’s statement that it was sentencing within , the guidelines is a sufficient articulation of reasons for the sentences imposed, and the sentences do not shock our conscience, we now reject defendant’s claim of sentencing error. People v Broden, 428 Mich 343, 355; 408 NW2d 789 (1987); People v Coles, 417 Mich 523; 339 NW2d 440 (1983); cf. People v Triplett, 432 Mich 568, 573; 442 NW2d 622 (1989).
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] |
Grant, J.
This is an action of libel, in which the plaintiff recovered verdict and judgment, and defendant appeals.
The libelous article is as follows:
“ Humane Agent Vhay is investigating the case of Andrew McDuff [meaning the plaintiff], 73 Beech street, who is charged with having got away with the property of his father and mother, who are now said to be starving in a Jones-street attic.”
Other publications, subsequent to this upon the same subject were introduced by plaintiff under objection, and he then introduced evidence tending to show the falsity of the libelous article. Testimony was introduced on the part of the defendant tending to prove the truth of the charge, and good faith in its publication. The issue in the case was as clear and simple as can well be imagined. If the charge was not true, then the article was libelous. The questions to be submitted to the jury were:
1. The truth of the libelous article.
2. If not true, the amount of damages suffered.
3. The good faith of the defendant in mitigation of damages.
The first point raised in defendant’s brief is that the cause should not have been submitted to the jury at all. This point was not raised in the court below, and is not assigned as error, and therefore cannot be considered here.
The following questions were asked the plaintiff, and answered under objection:
“Q Has there been any difference whatever in the treatment since the publication of these articles by any of your acquaintances from what there was before?”
“Q. Will you tell us in what -the difference consisted?”
This testimony was objected to for two reasons:
1. Because it involved special damages not alleged in this declaration.
2. The questions were not confined to the libelous publication declared on, but involved damages resulting from other publications.
Both objections were well taken. The allegation of damages in the declaration is as follows:
“He, the said plaintiff, has been and is greatly injured in his good name, fame, credit, and reputation, both as an individual and as such trustee, and brought into public scandal and disgrace, is suspected to have been guilty of the misconduct charged upon and imputed to him as aforesaid, and has been greatly vexed, harassed, oppressed, and impoverished, and hath been and is otherwise much injured/'’
No special damages are alleged; only general damages, in the general and usual language of declarations in libel cases.
The article is libelous per s.e but that of itself does not render evidence of special damages, or of specific acts of others towards plaintiff in consequence of the publication, admissible, unless alleged in the declaration. Whenever a plaintiff alleges no special damages, he is presumed to rest content with those damages which are the natural result of the libelous publication upon his character and reputation and feelings, without proof of speoiño facts. He is presumed to have a good reputation and character. The damages he is entitled to recover are the ’result of the natural injury to these and to his feelings, coupled with the malice, or want of malice, with which the article was published. These the defendant is prepared to meet. He cannot be prepared to meet special instances of slight, avoidance, loss of hospitality on the part of friends and acquaintances, from whatever part of the world the plaintiff may choose to bring witnesses or to testify himself. If plaintiff desires to recover for damages for such special injuries, he must allege them. Bassil v. Elmore, 65 Barb. 627; Terwilliger v. Wands, 17 N. Y. 57; Dicken v. Shepherd, 22 Md. 399; Folk. Starkie, Sland. & L. § 378, and cases there cited.
The rules of pleading are founded upon reason and fairness. The issue in ordinary lawsuits is limited. The parties are more or less familiar with the transactions involved,- and the defendant may fairly be presumed to bave some knowledge of the testimony against him, and what witnesses he can produce to meet it. In a libel suit, under an allegation of general damages only, the issue is, what damages has the plaintiff suffered generally in the community where he is known, by the publication of the libelous article? and not what he has suffered in individual instances where those who have known him have treated him differently from what they did before. In the latter case, if he wishes to recover damages, he must allege them. No other rule would be fair and reasonable. Davies v. Solomon, 41 Law J. Q. B. 10. In that case the allegation was that the plaintiff had ceased to receive the hospitality of divers friends, naming them. It is laid down in Folkard’s Starkie, Sland. & L. § 634, that—
“ A plaintiff, under an allegation of general injury, may show a general diminution of business; but, if he seeks specific damages, he must give specific evidence.”
An examination of some of the records in libel suits heretofore decided by this Court has convinced me that this has been understood by the profession to be the rule. In Weiss v. Whittemore, 28 Mich. 374, it was decided that, under the allegation of a general loss of trade, the names of the customers driven away or lost need not 4)e mentioned. But the Court held:
“ The general allegation of the loss of trade is sufficient, and the declaration may be supported by evidence of such general loss.”
It was held in Bourreseau v. Journal Co., 63 Mich. 437, that it was not competent for the defendant to prove distinct facts that had not been made part of the issue as framed, and that no one could be prepared in advance to anticipate every fact, true or false, which might be offered in evidence, and of which plaintiff had no notice. The evidence on the part of the plaintiff must be governed by the same rule as on the part of the defendant; and, if the defendant cannot introduce specific facts without pleading them in justification, for the same reason the. plaintiff should not be permitted to prove them. Otherwise, there would be one rule of evidence for the plaintiff, and another for the defendant. Briefly stated, the rule is that the allegation of general damages will admit only general proof.
Plaintiff was one of the trustees of the estate of Andrew McDuff. He was not living in Detroit at the time he was made trustee. One McFedries, a son-in-law of Andrew McDuff, was asked the following question:
“You did send for Gilbert McDuff to come here and take charge of this estate?”
This was objected to as irrelevant and incompetent; the request, if any, having been made by letter. Plaintiff’s counsel then offered some letters written by the witness, to plaintiff, which the counsel himself said he did not think were admissible. After considerable discussion by counsel, the court asked the witness the following questions:
“Q. You did send for Gilbert McDuff to come here- and take charge of this estate?
“A. l^did, most emphatically.
“Q. Did you consult with his father and mo'ther before-you sent for him?
“A. Yes, sir.
“Q. How did you communicate with him?
“A. In writing the letter.”
Thereupon counsel for defendant moved to strike out the answers and questions, to which motion the court, replied: .
“I am going to let them stand, if they are the only answers in the case.”
The testimony was both irrelevant and incompetent. So far as the management of the estate by plaintiff was concerned, it was of no consequence how he came to take charge of the estate; but, if material, the letters were the only competent evidence of the fact.
Another witness for plaintiff was asked the following question:
“That part of the article published in the Detroit Evening Journal of February 1, 1888, stating fwho are said to be starving in a Jones-street attic/ referring to the mother and father of the plaintiff, is it true or untrue?”
This question was for the determination of the jury from the facts placed by the evidence before them. It called for the opinion of the witness from the facts within her knowledge. These facts it was competent to testify to. The conclusion was for the jury, and not for her. The answer called for her opinion, which was clearly improper.
A copy of the Omaha Herald was introduced, containing the following:
“Andrew McDuff, of Detroit, who had amassed a fortune, had not been seen for about ten years, till recently found by an agent of the Humane Society. He was confined in a cold and filthy room, without food or sufficient covering. Probably, the relatives who have been living off Mr. McDuf/s money during these ten years thought that such treatment would kill the old man. Now that the unfortunate has been rescued, there only remains the pleasant duty of sending his unnatural son to the penitentiary, which fairly yearns to receive him.”
This was objected to, and was finally stricken out by the court. In this connection a letter from one P. McDuff, a brother of the plaintiff, was introduced, under objection, which contained the following:
“Some person unknown to me sent me Omaha Herald for February 4, with a piece on the fourth page marked, which if you think proper to look it up, you will probably excuse my course.”
Plaintiff showed no connection between the publication in the Journal and the article in the Omaha Herald, which appeared under the editorial column of that paper, and not as a piece of news obtained from another publication. That article and the letter were clearly inadmissible. The jury very likely presumed that the article in the Omaha Herald was based upon the ■ article in the Journal, but there was no evidence of the fact. Error in admitting such testimony is not cured by striking it out. There may be cases where courts may well say that the jury could not be prejudiced by the admission of incompetent testimony when it is stricken out. In such case it would be error without prejudice, and judgment would not be reversed for that reason. But we cannot apply such ruling to the present case, -sphere the inevitable result of the evidence would be so injurious to defendant.
A witness on behalf of the plaintiff was asked:
“Now, I would like to know whether any of your customers that you remember stated anything with reference to their being moved to tears by this article. '
“A. A lady came into the store, and said that her mother read it, and shed tears over it, and felt badly about it, and gave as a reason that she had been a schoolmate of his.”
This testimony was clearly too incompetent, on the ground of hearsay, to merit discussion.
The next assignment of error relates to the conduct of the circuit judge upon the trial. To an objection to the admission of testimony made by defendant’s counsel, the court said:
“I do not want to compliment Mr. Pound, but I am well aware of the fact that Mr. Pound knows how to try a lawsuit.”
Mr. Brearley, the manager of the defendant, at the close of his cross-examination was dismissed by plaintiff’s counsel with the remark:
“I think that is all, Mr. Brearley; you can go on and state that I have not cut my eye-teeth again, if you wish.”
Defendant’s counsel excepted to this remark, to which the court said:
“I do not think the papers make fair remarks. I noticed the paper called Mr. Pound ‘General.’”
Plaintiff’s mother, who was 75 years old, was asked if plaintiff had said anthing to her about her moving out of the house, and answered:
“I understood that he wanted me to go to thé Old Ladies’ Home.
“ The Court. Answer the question.
“ Witness. I am trying to.
“ Court. You are not. I do not hesitate to' say it to you, madam.”
A colored man by the name of Johnson was a witness for the defendant. He had made a statement which was in direct conflict with the testimony on the part of plaintiff. . Plaintiff’s counsel thereupon asked the court to commit the witness for perjury," and stated to the court, in the presence of the jury:
“The witness deliberately lied when he said Gilbert McDuff locked his father up in that house.”
Defendant’s counsel excepted to this language, and the court thereupon said:
“I tell you, I have a decided opinion of this man’s testimony, and I intend in my charge to the jury to call their attention to his testimony. The manner in which this man swore yesterday is something I shall never live long enough to forget. And put this in the record, if it ever gets out of the court-room, and keep it there: A man who will do as he did, and point out a man under the solemnity of oath, and swear that a certain man paid $1.10, I say, sir, I have my opinion about it, and a decided opinion of it.”
Defendant’s counsel objected to this statement, and stated that the court had no business to make such a remark from the bench; to which the court replied:
“I have. Take your exception. I have,' and I will say more if you want it.”
And in charging the jury the judge said of this witness:
“I think it my duty to charge you that in regard to his evidence I have a decided opinion.”
With the propriety of such conduct and language we have nothing to do. Our only province is to determine whether they amount to a legal error; and however unpleasant the duty may be, in such cases, we must not shrink from performing it. Whatever language may be used by counsel in the heat of trial, it is the legal duty of the judge to preside and decide with impartiality, and to keep counsel within proper bounds. Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury. It is their duty to follow his instructions as to the law. Whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of the other, or uses language which tends to bring an attorney into contempt before the jury, or uses any language which tends to prejudice them, he commits an error of law for which the verdict and judgment must be promptly set aside. Appellate courts cannot correct mistakes of fact. Trial courts, therefore, cannot be too circumspect and careful to see that questions of fact are submitted to the unbiased judgment of the -jury, which, under our jurisprudence, are for their sole determination. To sanction such conduct and language as the above by the circuit judge would tend to render trials a farce, and result in a denial of justice. Language less open to criticism has been held error by this Court. Wheeler v. Wallace, 53 Mich. 355; Cronkhite v. Dickerson, 51 Id. 177; People v. Hare, 57 Id. 505.
The witness Peter McDuff was asked''by plaintiff’s counsel, on cross-examination, if he had not taken a lewd woman into his house. This, upon objection, was excluded, whereupon plaintiff’s counsel stated that, if counsel for defendant would withdraw his objection, he could prove it by this man’s sister. The court refused to instruct the jury that the remarks were improper, and that they should pay no attention to them. It was error on the part of counsel to ' make the remarks. No verdict should be allowed to stand in the face of such statement to prejudice the jury, and to get the full effect of excluded evidence before them. It is never proper practice, when an objection to a question has been sustained, for counsel to state in the presence of the jury what he can or proposes to prove if allowed to do so. After it was made, .the court could not well have done less than to instruct the jury to disregard it.
It is alleged that errors were committed . in instructing the jury upon the measure of damages. What we have already said upon the question of special damages renders any discussion of these instructions unnecessary. Under the repeated decisions of this Court upon this subject, no difficulty can exist in properly instructing a jury. The rules governing this case are laid down with clearness and precision in Scripps v. Reilly, 38 Mich. 10.
Judgment must be reversed, with costs of.both courts, and a new trial ordered.
Cahill and Long, JJ., concurred with G-rant, J.
Champlin, C. J., and Morse, J., concurred in the result. | [
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] |
Grant, J.
The plaintiff's buildings, consisting of one two-story frame dwelling-house and two barns, and the hay, grain, and farming implements therein, were insured with the defendant. They were destroyed by fire October 17, 1888. The policy required proofs of loss to be submitted within 30 days after the loss occurred. No such proofs were made. Plaintiff commenced suit August 20, 1889. The case was regularly brought to trial, and plaintiff recovered verdict and judgment.
Plaintiff admits a failure to submit proofs of loss, but claims that they were waived. One Faxon was the local agent of the company in securing the policy. Immediately after the fire, Faxon notified the defendant of the loss. Defendant immediately sent its adjuster to investigate the loss. It was conceded by the defendant's counsel that the adjuster of an insurance company is clothed with the power of examining into the facts of the loss, and ascertaining the amount of it by the choice of arbitrators, or by compromise or agreement, and reporting to the company the result of his investigations. This adjuster met Thomas J. Gristock, who resided upon the farm at the time of the fire, and was the son and agent of the plaintiff. They spent several days investigating the loss, during which time a list of the persona] property was made, signed, and sworn to by the plaintiff's son. A builder was employed to make an estimate of the value of the buildings. An agreement was reached as to the value of all except the house. Mr. Gristock and the adjuster agreed to refer the value of the house to arbitration. Each was to select one arbitrator, and, if they failed to agree, the two to choose a third, whose decision they agreed to abide by. They agreed to meet with the arbitrators five days after, and close the matter up. Before the time had arrived, the adjuster wrote Mr. Faxon that he could not meet with Mr. Gristock at the time appointed. Mr. Gristock, relying upon this, did not make out the formal proofs of loss as provided by the policy. Four days before the time to make such proofs had expired, Mr. Gristock consulted his attorney, who- advised him that no other proofs of loss were necessary. Shortly after the 30 days had expired, Mr. Gristock saw the adjuster, who asked him if he had sent in proofs of loss, to which Mr. Gristock replied that he supposed the proofs had already been made out, with the exception of the house, and that he had been waiting on his motion for that ever since he went away. On December 4, 1888, Mr. Gristock wrote the defendant informing it of what had occurred between himself and the adjuster, and asking for a speedy adjustment. Defendant’s general agents in Chicago replied, under date of December 12, in which, after stating that the adjuster denied his statements contained in the letter, they say that they are advised by their counsel that the policy is null and void. Such, in brief, is the testimony on the part of the plaintiff. The defendant introduced no testimony.
The circuit judge, after stating, in substance, the .above facts to the jury, instructed them that if the conduct and acts and conversation of the adjuster would induce an honest belief on the part of Mr. Gristock that the proofs that were being made, and the certificates that were being furnished, and the negotiations that were being had, were all that were required by the company, and that Mr. Gristock acted with an honest belief that these were all the company required, and that he was warranted from the facts in entertaining that belief in good faith, as a reasonable man, then the jury would be justified in finding that the formal proofs of loss were waived on the part of the company. He further charged them that, after the receipt of the letter of December 12, the plaintiff was not required to submit proofs of losses. The charge is sustained by the authorities. Security Ins. Co. v. Fay, 22 Mich. 467; Hibernia Ins. Co. v. O’Connor, 29 Id. 241; O’Brien v. Insurance Co., 52 Id. 131; Aurora, etc., Ins. Co. v. Kranich, 36 Id. 289.
The testimony on the part of the plaintiff showed that defendant's agent, Faxon, was informed by plaintiff before the policy was issued of the existence -of certain mortgages upon the property, and that Faxon told him that it was all right. Plaintiff made no written application for this policy. Faxon made a daily report to defendant, in which he stated that there was no mortgage upon the property. Plaintiff's son also testified to informing Faxon of these mortgages. Faxon, who was a witness for the plaintiff, on cross-examination, denied these statements. The judge instructed the jury that if they found that, prior to the issue of the policy, explicit and definite notice of the existence of said mortgages was given to the local agent, the plaintiff would not be precluded from recovery, and that in such case they might treat the knowledge of the agent as the knowledge of the company, The charge was correct, within the former-decisions of this Court. O’Brien v. Insurance Co., 52 Mich. 131; Copeland v. Insurance Co., 77 Id. 554; Russell v. Insurance Co., 80 Id. 407.
In the letter of December 12, above referred to, written by the defendant's agents to plaintiff's agent, referring to the adjuster, is the following language:
“He was sent to your town, and instructed to look into the circumstances, and advise the company in regard to the same, 'that the company's proper officer might decide what further to do in that regard.''
It is claimed by defendant's counsel that this was evidence of the limited authority of the adjuster, and that therefore the negotiations and agreement which were testified to oh the part of the plaintiff were without the authority of the adjuster. The obvious reply to this claim is that they were within the general authority of an adjuster, as conceded by defendant's counsel. In the absence 'of notice to plaintiff of this limited authority, he had a right to rely upon the general authority possessed by such agents, and to act accordingly.
Mr. Faxon testified that he introduced the adjuster to Mr. Gristock; that he heard some of their conversation, but could not state it any further than that they were taking an invoice or inventory of the property saved, and narrating the things that were lost; that they were together two or three days; and that he was in and out several times. Defendant’s counsel moved to strike the testimony out as immaterial, and not tending to show a waiver, which the court refused. "We see no error in this. It was a part of the history of the transaction. It was competent for the plaintiff to show the circumstances under which the adjuster came, and the length of time spent in the negotiations.
The witness Thomas J. Gristock lost by the fire certain personal property covered by a policy of his own. He had made out two sworn statements, one covering his father’s loss of personalty, the other his own. These were introduced in evidence. He testified on cross-examination that some of' the articles in the statement of his own loss belonged to his father. It therefore became a material question to whom these articles belonged. On redirect examination, the witness was asked: “As a matter of fact, did you ever state, or intend to state, that you owned this personal property?” The witness answered, “No.” Counsel objected to the witness testifying to his intention, and moved to strike it out. The court refused, and defendant excepted. The court based its ruling upon the fact that the good faith of the execution of the papers was raised, and therefore the witness could swear to his intent. The witness was entitled to testify that this was a mistake, and in so doing he would indirectly have testified to his intention. We think no error was committed by the court in refusing to strike out the evidence.
Judgment affirmed, with costs.
The other Justices concurred.
The facts are more fully stated in head-note 2. | [
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Morse, J.
This is a controversy involving the title to about 170 acres of land, situated in the county of Clinton, in this State. The undisputed facts are as follows:
1. On November 30, 1874, the defendant John Parks was the owner in fee-simple of, and with his wife, Maria T. Parks, lived upon, the premises. At this date he was very sick, and not expected to live, and conveyed, in anticipation of his death, the land to his wife by warranty deed, but without any money consideration. At the time of the execution of this deed, there was a mortgage upon the premises running to one Thomas McBlain, in the sum of $500. This mortgage was executed March 1, 1872. After the deed from Parks to his wife, and on October 24, 1876, John Parks executed a mortgage on the same lands to his brother, William Parks, for $238. Maria T. Parks joined with her husband in this mortgage.
2. In 1877, Maria T. Parks died, leaving two minor daughters, Mary Jane, now the wife of,, Charles S. Hurlbert, and Carrie Parks, as her sole heirs, aged respectively about 10 and 5 years at the date of their mother’s death. The legal record title at the time of Mrs. Parks’ death stood in her name, subject only to the McBlain and William Parks mortgages. McBlain commenced proceedings to foreclose his mortgage by advertisement before the death of Mrs. Parks, and on January 12, 1878, the premises were sold upon such foreclosure to Thomas McBlain, the mortgagee, and a sheriff’s deed executed and delivered to him. On January 9, 1879, McBlain and wife conveyed the lands by quitclaim deed to John Parks. The deed was dated on the 6th, but acknowledged on the 9th, of January. McBlain lived in Geneva, N. Y., and the deed was executed there. After the death of Mrs. Parks, William Parks foreclosed his mortgage, and at a sale had thereunder, May 30, 1878, John Parks became the purchaser at the sum of $330.76.
3. These proceedings put the apparent legal title back into John Parks, and February 3, 1879, he conveyed by warranty .deed the west 70 acres of these lands to John P. Simmons. March 28, 1882, Simmons and wife deeded the same to August Watt. Watt paid Simmons $1,850 in cash, and gave a mortgage back to him for the balance of $2,000. Simmons afterwards died, and his widow, the defendant Nancy Simmons, became the owner of this mortgage, which she now holds. The defendant Eeuben Kempf also holds a mortgage for $1,200 upon this 70 acres, given by Watt as security for money borrowed of Kempf to pay Simmons on the purchase of the premises. Simmons moved upon the land and made improvements. Watt, upon his purchase, took possession of the land, and has occupied it ever since, and also improved it. These improvements, consisting of buildings, orchard, etc., are valued at from $1,500 to $2,000. This is the history of the 70 acres.
4. The original homestead was upon the remaining 100 acres. John Parks, after his wife’s death, remained upon this portion of the premises, and managed and dealt with it as his own, until his second marriage, in 1882, when he moved upon his wife’s farm, renting this place to Charles- S. Hurlbert, his son-in-law, who paid him rent, and now lives upon it. While' Parks lived upon this 100 acres, his children resided with him. Carrie Parks, who was' not of age at the time the testimony was taken in this suit, has, since her father moved away, made her home with her brother-in-law, Hurlbert.
5. While Parks was in the occupancy of this 100 acres he gave several mortgages, as follows: John Parks to Thomas McBlain, November 11, 1880, $1,100; John Parks and wife to Samuel E. Hart, November 15, 1883, $1,600; John Parks and wife to A. J. Baldwin, November 19, 1883, $100. To discharge these mortgages, and obtain a lower rate of interest, John Parks borrowed of the defendant Barbara Langenbacher the sum of $3,200, and he and his wife, November 7, 1885, gave her a mortgage to secure that sum upon the land, the 100 acres, which she now holds. With the money obtained from Mrs. Langenbacher, he paid up the three mortgages above noted, and they were discharged of record.
6. February 1, 1886, Mary Jane Hurlbert, formerly Mary Jane Parks, executed a quitclaim deed of all her right, title, and interest in the whole 170 acres, being an undivided one-half interest in the same, as heir at law of her mother, Maria T. Parks, to the complainant James W. Lucas.
In August, 1886, this bill was 'filed by Lucas and Carrie Parks, by her next friend, praying that the title to the whole premises be decreed to be in them, and that the mortgages held by the defendants Nancy Simmons, Beuben Kempf, and Barbara Langenbacher be delivered up- and canceled. The bill alleges in support of this prayer that John Parks obtained the title to these premises after his wife’s death by fraud; that an agreement was made between him and McBlain, with the knowledge and assent of Simmons, who was about to purchase the 70 acres, that instead of the payment of the mortgage by Parks, and its cancellation and discharge, McBlain should bid the premises off in his own name at the foreclosure sale, and, after his title had ripened, deed the same to Parks, thus cutting off the infant children, and defrauding them, and putting the title in Parks; that Parks bid m his own mortgage to William Parks, having it foreclosed, and a deed made to him, in the furtherance of the same fraud. The bill,also charges a knowledge of this fraud upon all the defendants before they acquired any interest in said-premises. The defendants Parks and Watt made no defense, and were defaulted. The others answered, denying any knowledge of the alleged fraud, and setting up their equities in the premises.
The evidence was taken in open court before the Honorable Vernon H. Smith, then judge of the Clinton circuit court, who dismissed the bill of complainants upon two grounds:
1. That it was not the intent of John Parks, at the time he made the deed to his wife, to convey the absolute title to her at once, but that it was-delivered upon the condition that if he recovered it should not be valid, or of any effect, — if he died it was to be valid, if he lived it was to have no effect; and that Mrs. Parks received it under this understanding.
2. That the equities of the defendants are such that the complainant James W. Lucas, who bought the title upon speculation, is estopped by his own knowledge, and that of his grantor, Mary J. Hurlbert, and her acts, from disputing the mortgages; and that August Watt was a good-faith purchaser of the 70 acres, without any knowledge of any fraud in the obtaining of the title by Parks.
We are satisfied that the bill ought to be dismissed without any doubt against all the defendants except John Parks upon the equities of the case. We are not convinced that Mr. Simmons had knowledge of any fraud being committed upon the children when he purchased the 70 acres. Simmons is dead, and cannot speak for himself; but his wife testifies that she had no knowledge of any fraud. The fact that Simmons knew anything about a scheme between McBlain and John Parks to defraud his children depends entirely upon the testimony of John Parks, who appears to be the only witness presented to establish his own fraud. He swears that he. was counseled by the Perrins and Baldwin, attorneys at St. Johns, that this was the course to take to get the title back into his hands, and that Simmons was present when this advice, upon which Parks claims he acted, was given. ' Both the Perrins and Mr. Baldwin emphatically deny that they ever gave him any such advice. We do not feel obliged to believe Mr. Parks under these circumstances,' and we must find that Watt, and Nancy Simmons, who holds the mortgage given to her husband, are good-faith purchasers. This ends the controversy as to the 70 acres, and the bill must be dismissed as against them and the defendant Reuben Ilempf, as there is no pretense that he had any notice of the alleged fraud, except such as the record gave him. We do not think the record of the title, as it appeared in the office of the register of deeds, was notice to any one that any fraud had been committed.
In relation to the 100 acres, it is conclusively shown that the money advanced by Mrs. Langenbacher was all used, except, perhaps, a few dollars, in payment of existing and valid incumbrances upon it, — mortgages put upon the premises by John Parks, while the legal title stood in him, — and with no proof that any of them were fraudu lent as against these heirs, or taken with any notice of their equities. Mrs. Langenbacher' would have the right as against the complainants to be subrogated to the rights of these mortgagees, her money being used in their discharge. Nor did she have any notice of the claims of these heirs. She went up and looked at the premises before she loaned her money, and saw Mrs. Hurlbert there. Mrs. Hurlbert knew what she was there for, and also knew her own rights as well then as she does now, and yet she did not even hint to -Mrs. Langenbacher that her father had no right to mortgage the premises. And Hurlbert, her husband, testifies that he knew his wife's rights in the premises, and knew that Mrs. Langenbacher was about to loan this money to John Parks for the express purpose of removing the existing mortgages; that, Avhile the negotiations were going on between Mrs. Langenbacher and Parks for this loan, he went to the office of Hammond, at North Lansing, who was her attorney, and obtained the abstract of title of the land, Avhich Parks had given to the son of Mrs. Langenbacher, that he and -Lucas might take the same to Mr. Blanchard, at Ionia, to get his advice as to his Avife's rights in the land; and that he did not acquaint Hammond, or the Langen. bachers, with the fact that his wife claimed title to the land, or [hat there was any defect in Parks' title, because he Avas not “open hearted” or “green enough for that;” and that he did not want Mrs. Langenbacher to know about the claim of the heirs until she had loaned the money, and taken up the mortgages then on the place, as they were about to be foreclosed, and he was financially embarrassed, and would thereby get further time in which to raise the point of his wife's title to the premises.
“ Q. Mrs. Langenbacher's money gave you a breathing spell until you could find this fellow [Lucas] to sell it to, and then let them fight it out and let your wife out?
“A. Yes, sir.
“ Q. Your idea was to take your wife out from under this yoke, and let this fellow fight it out, was it not?
“A. You bet it was.”
It is also apparent from the testimony that Mrs. Hurlbert and Lucas were both cognizant of and parties to this scheme to let Mrs. Langenbacher take up by her money these mortgages then past due, and being pressed for payment, and take her mortgage on long time, so that they could be given leisure in which to assert Mrs. Hurlbert’s claim to the premises, or one-half of them. Lucas admits that he bought a chance, and was to run all risks and expenses of the lawsuits necessary to maintain the title of the heirs. He claims that the bargain was to pay each of them $2,500. He paid Mrs. Hurlbert $800 down, and ’gave her security for the balance. With Carrie Parks he had to trust to her ratifying the purchase when she became of age, and therefore paid her nothing. We think they have no equities as against Mrs. Langenbacher.
But as against John Parks, it is different. He has admitted the fraud upon his children, as alleged in the bill, both by his default and his testimony under oath. I am disposed to let him lie in the bed he has made. There is sufficient testimony in- the case to sustain the finding or opinion of the circuit judge that this deed was never intended to take effect unless John Parks died of his then illness. But he did not move before his wife’s death to have the title restored to him, and he himself positively denies in his testimony that the deed was any other than one intended to take effect at once, and to vest the title absolutely in his wife. And I am thoroughly satisfied that there would never have been any litigation or trouble in this case had it not been for this same John Parks. Satisfied, as he now seems to be, that the equitable title to these premises is in the heirs of his wife, he could have deeded the 100 acres to his daughters, as, under such circumstances, it was his duty to have done. But there was an evident desire upon his part to divest innocent purchasers of their titles and securities for which they had paid value, and held for a long time by his active consent; or, at least, he was willing to assist Lucas and his son-in-law in their attempt to defraud such persons as had invested money upon the strength of his title, and at his request, when, if he is to be believed, he knew his title was fraudulent when he sold or mortgaged the premises to them. He is, more than any other person, responsible for the state of things as we find them, and for this litigation. It is equitable that he should in this case reap what he has sown. As against him I think the heirs should prevail.
It is contended very strenuously that the record title, as it stood, was notice to purchasers of the wife’s title, and that, therefore, no one could be a good-faith purchaser, as the heirs of the wife were continuously in the possession of the premises; that the record of the mortgage foreclosures, upon which John Parks based his title, showed that the result of those proceedings was but a payment of John Parks’ own debts, and that as in equity Parks could not acquire title to the land by purposely or otherwise making default in the payment of his own debts, and bidding the land in as his own, and as the law would consider it a payment of his own debts and a cancellation of the. mortgages, the purchaser, after examining the title, and finding it in this condition, was bound to look further, and inquire into the rights of the heirs of the wife. This might be true, so far as the McBlain mortgage was concerned, which was security for the note of John Parks alone, ’ and which it may be inferred was signed only by the wife to convey her dower interest. But the mortgage given to William Parks was executed when the title was in the name of the wife, and it was given to secure, a note signed by John Parks and Maria T. Parks jointly. And it would, under the circumstances, be presumable from the record that it was her debt instead of his. If so he had as much right to bid in the premises as any one. And, under these circumstances of the record, as said before, we do not think the records were notice to any one that the title was not in John Parks. The possession of the heirs of the wife was always the possession of John Parks. They never occupied the premises, except as they lived as children with their father, until he moved away, and then Hurlbert, who occupied, rented of him. All the conveyances, except the mortgage to Mrs. Langenbacher, were made while Parks occupied the premises, and claimed title. And what Hurlbert and his wife did in the case of Mrs. Langenbacher has been already stated.
My conclusion is that the bill was properly dismissed, and the decree must be affirmed as against all the defendants except John Parks, with costs of both courts. As to the 100 acres, the decree will be modified so that the title to the same will be decreed in the complainants, .subject to the payment of the mortgage to Mrs. Langenbacher, which is hereby declared to be a valid lien upon .such premises.
The other Justices concurred. | [
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] |
Morse, J.
This case arises from a proceeding in the circuit court for. the county of Kent, in chancery, by the Auditor General, under the general tax laws, to obtain a decree for the sale of certain lands for the non-payment of a tax assessed thereon in the year 1887.
The lands are situated in the- township of Grand Rapids, on what is known as “ Fisher’s Second Addition to the City of Grand Rapids,” and upon the east side of Bast street, which street separates the city from the township. In 1887, the township and city authorities caused said East street to be graded and improved between Cherry street on the north, and Hall street on the south. This improvement was attempted to be made under Act No. 313, Local Acts of 1875, as amended by Act No. 353, Local Acts of 1877. Hnder these acts, the township board attempted to unite with the board of public works of the city for the joint improvement of this street, the center line of which is the boundary line between the city and township. In this case we have only to deal with the proceedings of the township board.
It appears that two petitions were presented to the township board for the grading of East street. The first one was filed with the township clerk, June 12, 1887. June 18, same year, the township board met, and this petition was laid on the table indefinitely. July 16, 1887, at another meeting of the board, it was resolved icthat a new petition, with a majority of the resident property-holders, will be considered.” July 23, 1887, a second petition was presented, and a motion made and carried that the petition be placed on file, and “ that the prayer of the petitioners be granted.” In the record of this meeting, the petition is set out in full, as is also the determination of the township board that a majority of the resident property-owners favored the proposed improvement. A resolution was also passed declaring the same a necessary public improvement. At a meeting held August 5, 1887, it was resolved that the petition be re-presented, and the action of July 23, 1887, was canceled, and so marked on the records of that meeting. August 22, 1887, a petition identical in words and signatures with the one of July 23, 1887, was received and filed by the townshij) board. Acting upon this, the board determined that it was signed by a majority of the resident property-holders, and proceeded to make the improvement. The township board established a district deemed to be benefited by the proposed improvement, and upon which the cost thereof should be assessed, and let the contract under which the township’s share of the work was done, and commissioners were appointed, who made an assessment roll containing the descriptions of the lands, • the names of the owners thereof, and the tax assessed upon the same.
The defendant refused to pay the taxes assessed upon her lands for this improvement, and such lands were returned as delinquent, and included in the petition of the Auditor General in this proceeding, which was com- / menced by the filing of petition January 14, 1890. The defendant appeared and answered, filing her written objections to the validity of the tax. The court found that the assessment levied for the cost of this East-street improvement was invalid, on the ground íhat a majority of the resident proper'ty-holders, upon the portion of the said street so improved, had not petitioned for said improvment, and declared the proceedings void for want of jurisdiction. The petition of the Auditor General, so far as it related to the defendant’s land, was dismissed. The Auditor General appeals to this Court.
The court below was right, and the petition, as against defendant, was properly dismissed. The first petition ■cannot be used to bolster up the proceedings which were had on the last petition. There were three names of resident property-holders on the first which were not on the last petition. But as the first petition was laid upon the table indefinitely, and never used in the proceedings, these three persons must be counted as not petitioning for the improvement. Only those who signed the petition acted upon, and which petition, from the records of the township board, appears as the beginning and basis of the proceedings had in the improvement, can be counted in favor of the same. The statute provides that the improvement is to be made “upon petition of a majority ■of the resident property-holders upon such highway or street.” We are convinced from the testimony that the circuit judge was correct in his finding of fact that such majority was not obtained to the petition for improvement in this case. There were only 11 signatures to the last petition, and there was certainly the same number, if not more, of resident property-holders who did not sign it.
Three of the 11 names to the petition are challenged, to wit:
1. A. S. White, who lived with his four minor children upon lands owned by the children. He signed as guardian, but he had no power or authority to do so. His power over the real estate was limited to leasing it, and to the reception of rents and profits. Kinney v. Harrett, 46 Mich. 89. The statute authorizes -the guardian, when licensed, under proper and stated proceedings, by the probate court, to sell or mortgage the real estate of his wards. But it is shown that the probate court did not authorize White to sign this petition, and we doubt if such court has the power to do so, as there is no statutory provision authorizing it.
3. James Dolbee, who signed as administrator. He also had no power or authority to bind the estate of which he was administrator. His signature cannot count.
3. George W. Thayer, Jr. Thayer and his wife were residents ujDon land which they held under contract which ran to them jointly. It is contended by defendant that his name cannot be counted, as he could not bind the property unless his wife joined with him; citing Jacobs v. Miller, 50 Mich. 124. The evidence shows that the contract ran to George W. Thayer, Jr., and Jessie Thayer; that Jesáie Thayer was the wife of George W., and lived upon the property with him as his wfife at the time of the signing of the petition. It is claimed by the State that, inasmuch as the land contract did not show upon its face that Jessie was the wife of George. W. Thayer, Jr., and that fact must be shown outside of the deed and by oral evidence, their estate in the land was held as tenants in common. This is not the law. If the estate of both was created at the same time in one instrument, and they were at the time in fact husband and wife, their interest in-the land was an entirety, and nothing that one could do would bind the other as to such interest. Therefore, under the manifest spirit and intent of the statute, the name of George W. Thayer, Jr., could not be counted as a resident property-holder unless his wife also signed the petition. The fact that they were husband and wife could be shown by oral testimony. Dowling v. Salliotte, 83 Mich. 131.
There were also upon lands fronting upon east street, and included in this improvement, two churches; one, the Holland Church property, was alsq occupied by a parsonage, in which the minister resided. In both churches the regular services and business meetings of the church societies were held. It is claimed that these two church societies must be regarded as resident, property-holders, under the statute, and must be counted among those not signing. It is not necessary, for the purposes of this case, that this question shall be here determined; but we are of the opinion that the church corporations ,must be considered as resident property-holders.
It is contended by the counsel for the Auditor General that, the township board having determined upon investigation that a majority of the resident property-holders had signed the petition upon which such board acted, their finding and determination is final and conclusive againt all collateral attacks, and can only be reviewed in some direct proceeding. The statute does not provide that this determination of the township board shall be conclusive, and, in the absence of such a provision, the rule is well settled that the fact whether or not the requisite number of persons have signed a petition or given assent to pave or improve streets, when the power so to pave or improve them depends upon a given number or proportion of the proprietors to be affected, can be inquired into; and that the non-assent may be shown as a defense to an action to collect the assessment. See Dill. Mun. Corp. (3d ed.) § 800. See, also, Twiss v. City of Port Huron, 63 Mich. 528; Mulligan v. Smith, 59 Cal. 206; Cooley, Tax'n (2d ed.), 657.
There were other objections to the tax which we do not deem it necessary to notice. The want of. jurisdiction, as above shown, defeats the tax.
The decree of the circuit court, as far as it affects the' defendant, will be affirmed.
Ohamplin, O. J., Long and Grant, JJ., concurred with Morse, J. | [
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] |
Long, J.
On July 8, 1889, defendant Denison wrote the plaintiff at Peoria, Ill., ordering 5,000 pounds of twine. No dealings had ever been had between the parties prior to that time. The plaintiff received the letter the next day, and at once wrote Denison: “lYe have entered your order, and twine will go forward to-morrow.” On July 11 the twine was shipped to W. C. Denison, Grand Rapids, Mich., plaintiff taking shipping ■bill from the railroad company there, and on same day sending it to Denison, with statement of account for value of the twine. The twine was received at Grand Rapids by the Grand Rapids & Indiana Railroad Company, July 17, and on the 18th it turned it over to a teamster, who delivered it at the store which was occupied by Denison at the time the order was made.
It appears that on July 9 the Grand Rapids Savings Bank caused an attachment to be levied upon Denison's property. On that evening Denison gave the bank a chattel mortgage on all the goods in -the store and at a warehouse there, and a store situate 'at another place outside of Grand Rapids. July 10, 11, and 12 he gave mortgages on the same property to several other creditors, two of them being given to the defendant the McCormick Harvesting Machine Company. The goods mortgaged were held in the store by the agents of the bank until they were sold under one of the mortgages, which was about July 18, at which time the defendant the McCormick Harvesting Machine Company bid the goods in, and continued to occupy the store, putting Mr. Denison in as its agent. The McCormick Harvesting Machine Company mortgage contained a clause, after a description of the property mortgaged, as follows:
“And all additions to and substitutes for any or all of the above-described property.”
On September 7 plaintiff, who had no notice or knowledge of the changed condition of Mr. Denis.on's affairs, drew on him at sight for the amount of the bill. This draft was not paid, and on September 14 plaintiff wrote him for prompt remittance, which was not- made. On September 19, 1889, plaintiff brought replevin against the defendants for the twine, finding about one-half of it; the balance having been sold out of the store by the McCormick Harvesting Machine Company. On the trial, of the cause the defendants waived return of the property, and had verdict and judgment against the plaintiff for $351.91, the value of the twine taken, and costs. Plaintiff brings error.
The plaintiff asked the court to instruct the jury that plaintiff 'was entitled to a verdict; and in the ninth request asked an instruction that—
“ If Mr. Denison did not in fact receive the twine at his store, but was not there when it was delivered, and never received and accepted it for his use in any way, except that, finding it in the store, he allowed the mortgagees to assume control of it, plaintiffs could retake it as against him.”
And in the fourteenth request it was asked that the jury be instructed that—
“The McCormick Company, as mortgagee, is in no better position than Mr. Denison. Its mortgage does not cover this twine, nor is ;,it a bona fide purchaser.”
Several requests were also asked for instructions to the jury relating to the insolvency of Mr. Denison at the time of the purchase, and his 'intent not to pay for the twine at the time of its purchase, or at the time when it was received at the store, on July 18. These last-named requests we do not deem it necessary to set out here for an understanding of the points involved. The requests set out were refused by the trial court, and upon such ruling the plaintiff assigns error.
The court, in its charge to the jury, stated:
“ Plaintiff claims the right to the possession of these goods at the time this suit was commenced — First, because, as counsel claims, the goods were ordered, were purchased, by Mr. Denison at a time when he was insolvent, and knew that he was insolvent, and had no intention, or at least no reasonable expectation, of paying for them according to the terms of the contract; and the plaintiff’s counsel also claims the right of stoppage in transit. All I need to say in regard to the latter ■claim is that I think the right of stoppage in transit, under the facts of this case as shown by the evidence, has no application whatever; there is no such right existing.”
This part of the charge relating to the right of stoppage in transit is assigned as error.
The court was in error in refusing these requests to ■charge and in the charge as given. It is not seriously contended here but that, under the evidence given on the trial, the defendant Denison was insolvent at the time the goods were ordered. At least this was a question of fact which should have been submitted to.the jury; and, if so found, the question of the right of stoppage in transit was an important question in the case.
The right of stoppage in transit is a right possessed by the seller to reassume the possession of goods not paid for while on their way to the vendee, in case the vendee becomes insolvent before he has acquired actual possession of them. It is a privilege allowed to the seller for the particular purpose of protecting him from the insolvency of the consignee. Thó right is one highly favored in the law, being .based upon the plain reason of justice and equity that one man’s property should not be applied to the payment of another man’s debts. Gibson v. Carruthers, 8 Mees. & W. 337. But it is properly exercised only upon goods which are in passage and are in the hands of some intermediate person between the vendor and vendee in process and for the purpose of delivery; and this right may be exercised whether the insolvency exists at the time of the sale, or occurs at any time before actual delivery of the goods, without the knowledge of the consignor. O’Brien v. Norris, 16 Md. 122; Reynolds v. Railroad Co., 43 N. H. 580; Blum v. Marks, 21 La. Ann. 268; Benedict v. Schaettle, 12 Ohio St. 515. This right of stoppage in transit will not be defeated by an apparent sale, fraudulently made, without consideration, for the purpose of defeating the right. There must be a purchase for value without fraud, to have this effect. Harris v. Pratt, 17 N. Y. 249.
In the present case it appears that the goods arrived in Grand Eapids July 17, and were taken to the store on the 18th. Mr. Denison was not in the store at the time they were taken in. Mr. Talford was in possession of all the goods and of the store at this time for all the mortgagees, and after the sale under the mortgage the McCormick Company took possession, and was in possession at the time this replevin suit was commenced. The’ testimony tends to show that at the time demand was made upon the McCormick Company and Mr. Denison for the twine Mr. Denison stated that he thought the plaintiff, having heard of his financial affairs, would not ship the twine, and that he did not know it had been shipped until it was in the store; and he was very sorry it had come, under the circumstances. The McCormick Company claimed that by the terms of its mortgage it was entitled to hold the twine.
The court was in error in not submitting to the jury the question whether the goods had come actually to the possession of Mr. Denison. The circumstances tend strongly to show that he never had actual possession of them, and never claimed them as owner. He had made the order, and was notified that they would be shipped; but from that time forward it is evident that he made no claim to them. The McCormick Company claimed that they passed to it under the terms of its mortgage. It, however, stood in no better position then Denison. 'If the goods never actually came into the possession of Denison as owner, the mortgage lien would not attach, even under the clause in the mortgage covering after-acquired property. It does not stand in the position of .a bona fide purchaser of the property. The right of stoppage could not be divested by a purchase of the goods under the mortgage sale. The transit had not ended unless there was actual delivery to Mr. Denison.
These were questions of fact for the jury, which the ■court refused to submit. If the jury had found that Denison was insolvent at the time the order was made, cr became insolvent at any time before the claimed delivery of the goods, and that the goods .were never actually ■delivered to the possession of Mr. Denison, then the vendor’s rights would have been paramount to any right which the McCormick Company could have acquired at the mortgage sale. Underhill v. Booming Co., 40 Mich. 660; Lentz v. Railway Co., 53 Id. 444; White v. Mitchell, 38 Id. 390; James v. Griffin, 2 Mees. & W. 623.
In the view we have taken of the case, we think the the other questions raised are unimportant, and we will not pass upon them.
The judgment of the court below must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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26,
-25,
2,
-26,
24,
-10,
12,
20,
13,
-22,
-8,
-31,
17,
-14,
40,
47,
-2,
-18,
-21,
39,
-36,
5,
-43,
-9,
5,
-4,
32,
13,
54,
44,
23,
106,
4,
29,
43,
-63,
-31,
-3,
0,
-25,
-21,
0,
36,
-6,
-4,
1,
48,
-13,
-51,
6,
63,
-38,
15,
-33,
-48,
0,
-10,
-3,
25,
-17,
-5,
-22,
1,
-2,
-19,
-5,
6,
-35,
8,
20,
4,
-70,
14,
2,
-1,
-4,
-38,
-27,
22,
23,
47,
41,
12,
8,
-6,
-31,
24,
-34,
22,
55
] |
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